ML20092H677
| ML20092H677 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 09/11/1995 |
| From: | Doris Lewis GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#395-17101 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9509210139 | |
| Download: ML20092H677 (13) | |
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(7M i-DOCKETED SeptembeMh95 UNITED STATES OF AMERICA 95 SEP 11 P3 :10 NUCLEAR REGULATORY COMMISSION ,
OFFin cr' cFCRETARY Before the Commissioners g g.[J.'y cr.yy y In the Matter of ) Docket No. 50-424-OLA-3 l
) 50-425-OLA-3 GEORGIA POWER COMPANY, ) ,
etal. ) Re: License Amendment
) (Transfer to Southern Nuclear)
(Vogtle Electric Generating Plant, -) '
Units I and 2) ) ASLB No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S MOTION FOR STAY OF LICENSING BOARD ORDER REQUIRING PRODUCTION OF ATTORNEY NOTES OF PRIVILEGED COMMUNICATIONS Introduction Pursuant to 10 C.F.R. 2.788, Georgia Power Company (" Georgia Power") hereby moves the Commission. for a stay, pending appellate review, of an order issued by the Atomic l l
Safety and Licensing Board in the above-captioned proceeding requiring production of certain at- l l
torney notes of confidential and privileged attorney-client communications. This stay is necessary l to preserve the status quo ante during appellate review and to prevent the destruction of the attorney-client privilege during the pendency of such review.
j The Licensing Board has issued a temporary stay ofits order until September 15, in order 4
to allow Georgia Power to seek a stay and appellate review from the Commission. Tr. 13315-20.
Georgia Power therefore requests that the Commission act on this motion and issue the stay by i September 15,1995. Georgia Power also intends to file its petition for review by this date.
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A stay is appropriate under the standards set forth in section 2.788. The Licensing Board's order is clearly erroneous. Indeed, it declines to follow the law established by the Su-preme Court in Upiohn v. United States,449 U.S. 383 (1981). Thus, there is an extremely strong likelihood that Georgia Power will succeed on the merits. Further, if a stsy is not granted, Geor-gia Power will be required to disclose its attorney notes. Such action will irreparably injure Geor-gia Power by destroying the confidentiality and privilege of the attorney-client communications recorded in these notes. Conversely, no other party will be injured, because they have already had
- full opportunity to discover the facts relevant to this case through examination, at deposition and at hearing, of the persons with direct knowledge of the facts at issue. Finally, issuing the stay would serve the public interest in preserving the confidentiality of attorney-client communications, thereby allowing full, frank discussions between licensees and their counsel and the informed legal decisions that result.
Summary of the Decision Reauested to be Staved The order which Georgia Power asks be stayed was issued orally on the record by the Atomic Safety and Licensing Board on September 6,1995. Tr.13154-58 (Sept. 6,1995). The Licensing Board's decision requires Georgia Power to produce notes taken by Georgia Power's attorney, Mr. John Lamberski of the Troutman Sanders law firm, reflecting communications with a Georgia Power employee, Ester Dixon (hereinafter the "Dixon notes").
Ms. Dixon is a secretary employed by Georgia Power at Plant Vogtle. In April 1990, she ;
l typed certain slides that were used in Georgia Power's April 9,1990 presentation to the NRC !
l (concerning restart of Vogtle Unit I after the March 20,1990 site area emergency). She also 1
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. typed a list of diesel generator starts that had been compiled by the Vogtle Unit Superintendent, t
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j Mr. Jimmy Paul Cash, in connection with diesel start information presented in the slides. The ac- l curacy of the diesel start information presented on April 9,1990 has been the subject of an NRC . ,
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j Otlice ofInvestigations ("Ol") investigation and Department of Justice inquiry prompted by alle-3
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gations submitted by Allen Mosbaugh (the Intervenor in this proceeding) in 1990, as well as a 2.206 petition filed by Intervenor in 1990, and is now at issue in this case.
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i The notes at issue were taken by Georgia Power's counsel, Mr. Lamberski, in 1992 while 4
investigating events associated with the OI and Department of Justice inquiries. Tr. 4416 (May a
) 16, 1995). Ms. Dixon was deposed by Intervenor in this proceeding on July 20,1994, and she testified and was cross-examined by Intervenor's counsel in this proceeding on June 9,1995. Tr.
i 8089-8176 (June 9,1995). ;
Following Ms. Dixon's testimony in this proceeding, Intervenor moved to compel produc- l tion of the Dixon notesM Intervenor argued that he needed the notes to resolves differences in j 1 )
l Ms Dixon's recollection between the 1994 deposition and the 1995 testimony? Georgia Power i
responded asserting that the notes are attorney-client communications and attorney work i \
i product? On August 3,1995, the Licensing Board ruled that Ms. Dixon's communications were i
9 E Interrenor's Motion to Compel Production of Licensee's Notes ofInteniew of Ester Dixon (June 30,1995).
- The difference in Ms. Dixon's testimony at her deposition and at the hearing was due to her personal efforts to
. prepare for the hearing, including her review of contemporaneous records, such as her time sheet, and recollection of other events uhich placed the preparation of Mr. Cash's list in sharper focus. Tr. 8084, 8102,8126. At the
- i. hearing, Intervenor's counsel developed the chronology of Ms. Dixon's activities by reference to her time sheet. Tr.
I 8098-8120. In her deposition, in contrast, Intervenor's counsel used no documents, or otherwise questioned the j witness, to assist her in recalling the historic sequence of events.
E Georgia Power Company's Response to Intervenor's Motion to Compel Production of Licensee's Notes of Inter-j Footnote continued on next page i
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, privileged communications of a client to an attorney, but ordered an in camera inspection of the j notes to determine whether application of the privilege would further its underlying purposesy On August 8,1995, Georgia Power moved for reconsideration of the Licensing Board's i
i August 3,1995 Memorandum and Order, to the extent it suggested that the attorney-client privi-i j lege might be outweighed by a showing of need? On August 10, the Licensing Board acknowl-1 i edged that the attorney-client privilege is absolute when it attaches, but requested further briefing I i on the standards set out in the Upiohn case. Tr. 10820-21 (Aug.10,1995). Intervenor and Geor- t gia Power responded on August 15,1995 and on August 18,1995, respectively? ,
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{ On September 5,1995, the Licensing Board stated that it was denying Georgia Power
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3 j Company's Motion for Reconsideration. Tr.12942 (Sept. 5,1995). In explanation, the Board
- opined that Ms. Dixon was involved in a situation in which her interest in confidentiality was at a !
- mimmum; that she was close to being a third party; and that there was no personal interest of hers in being protected for confidentiality. Tr. 12942-43 (Sept. 5,1995). Following an in camera in-2 spection of the notes on September 6 (gg Tr.13,078 ^), the Board concluded that there was no l material that required protection as " attorney work product" and ordered release'of the notes. Tr. ,
i i Footnote continued from previous page view of Ester Dixon (July 17,1995). "The attorney-client privilege, if and when attached to a communication (and '
- excepting, of course a valid waiver), is absolute, and there is no ' balance' to be ' tested,' and no 'nceds' test, as might
- be the case with a qualified privilege." Arcuri v. Trumo Tai Mahal Associat 3 1,154 F.R.D. 97.105 (D.N.J.1994). !
Memorandum and Order (Request for Discovery Concerning Ester Dixon), LBP-95-15, slip op. (Aug. 3,1995). ;
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- Georgia Power Company's Motion for Reconsideration of Order Regarding Request for Discovery Concerning l 4 Ester Dixon (August 8,1995).
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- Response to Licensee's Motion for Reconsideration Regarding the Notes of the Ester Dixon Notes and Brief on i j Attorney Client Privilege (Aug. 15, 1995); Georgia Power Company' Memorandum of Law on the Attorney Client
. Privilege (Aug. 18, 1995).
2 The transcript incorrectly states that the documents were received in evidence. They were not.
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13154 (Sept. 6,1995). The Board later added that it recognized it was placing a " limitation" on a Supreme Court doctrine of attorney-client privilege. Id. at 13157. The next day, when Georgia j l
Power communicated its decision to seek appellate review, the Board suggested that the question !
l was whether communications between an attorney and an employee with no personal interest should still be considered exempt [i1 privileged] under the Upiohn doctrine. Tr. 13319-20.
Grounds for the Stay The granting of a stay is governed by the four factors set forth in section 2.788(e) of the NRC's rules. These factors are the same as those traditionally applied by the courts. Public Serv-ice Co of New Hampshire (Seabrook Station, Units 1 and 2), CLI-90-3,31 N.R.C. 219,257 (1990). Each of these factors, discussed in turn below, strongly militates toward the granting of a stay.
Georgia Power is Likely to Prevail on the Merits l i
Georgia Power submits that it is very likely to prevail on the merits. Because the Licens- .
1 ing Board's order is inconsistent with controlling Supreme Court precedent, it is clearly
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i erroneous. :
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In Uplohn, the Supreme Court held that the attorney-client privilege protects not only the giving of professional advice to those who can act on it but "also the giving ofinformation to the i
lawyer to enable him to give sound and informed advice." 449 U.S. at 390. The Supreme Court l I
recognized that the first step in the resolution of any legal problem is ascertaining the factual background, and that information will otten be possessed by middle-level or lower-level l
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employees. El at 390-91. For this rearan, the Supreme Court held that the attorney-client privi-lege applies to a communication between an attorney representing a corporation and an employee of that corporation even if the employee is not part of the " control group," provided certain crite-ria are met. 449 U.S. at 394-958 The Licensing Board's decision is simply at odds with this controlling Supreme Court precedent. The Board decided that the attorney-client privilege was inapplicable because Ms.
Dixon did not have a personal interest in the controversy. But under Upiohn. the personal interest
- of an employee is irrelevant -- it is not one of the criteria articulated in Upjohn. Under Uplohn, an attorney-client privilege applies and attaches to allow and encourage the corporation's attorney to
, ascertain the facts so that the attorney may provide the best and most informed advice to the cor-poration, and not to serve the personal interest of employees who may possess those facts.
Georgia Power Will Be Irreoarably iniured Unless a Stav is Granted Of the four stay factors, the existence ofirreparable injury is the most crucial. Seabrook, spla, CLI-90-3,31 N.R.C. at 258. In the case at bar, if Georgia Power is required to produce its j 1
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- The criteria are :
The information is necessary to supply the basis for legal advice to the corporation or was ordered to be communicated by superior officers.
The informatio 2 ovas not available from " control group" management.
The communicaaons concerned matters within the scope of the employee's duties.
The employee was aware she was being questioned in order for the corporation to obtain legal advice.
The communications were considered confidential u hen made and kept confidential.
. 449 U.S. at 394-95. Satisfaction of these factors was addressed in the pleading below and was undisputed. See, gl, Georgia Power Company's Motion for Reconsideration of Order Regarding Request for Discovery Concerning Ester Dixon (August 8,1995) at 5-6.
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i attorney notes, the confidentiality and privilege of those notes will be destroyed. Such a destruc-
- tion of the privilege constitutes irreparable injuryper se. Once the confidentiality of the commu-i nications is lost, it cannot be restored.
l " Meaningful review entails having the reviewing court take a fresh look at the decision of the trial court before it becomes irrevocable.
. . , , Once the documents are surrendered pursuant to the lower court's order, confidentiality will be lost for all time. The status quo could never be restored."
Providence Joumal v. F.B.I. 595 F.2d 889, 890 (1st Cir.1979), quoted in Texas Utilities Gener-ating Company (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-83-6,17 N.R.C. J i 1
! 333,334 (1983). "The need for timely protection is particularly urgent where the discovery i
sought is . . . allegedly blanketed by the absolute attorney-client privilege." In re Von Bulow. 828 F.2d 94,99 (2d Cir,1987).*
Georgia Power is also concerned that Intervenor will use the Board's ruling as a precedent to invade other privileged attorney-client communications. Intervenor has repeatedly sought to turn this proceeding into an attack on opposing counsel? IfIntervenor succeeds in subverting l the proceeding in this fashion, its completion could be delayed considerably.
See al.so Admiral Insurance Co. v. U S. District Court for the District of Arizona. 881 F.2d 1486,1491 (9th Cir.1989) ("In view of the irreparable harm a party will likely suffer if erroneously required to disclose privileged materials or communications, courts have recognized the propriety of using mandamus for the review of orders compelling discovery in the face of assertions of absolute privilege '); U.S. Deoartment of Energy v. Brimmer. 776 F.2d 1554,1559 (Temp. Emer. Ct. of App.1985) ("[Ojnce the disclosure is made, the erroneous compulsory dis-closure may, as a practical matter, be irremediable by the usual appellate process."). There is some minority view refusing interlocutory review of rulings on privilege on the theory that a new trial can always be ordered after ap-pellate review of the final decision (Boughton v. Cotter Coro. 10 F.3d 746,749 (10th Cir.1993)), but such a rem-edy is not reasonable in this case, which is now three years old.
- Sgs, c.1, Intervenor's Motion to Compel Production of Affidavits in the Possession of Georgia Power Co. (July 23,1993), denied, Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), LBP-93-18,38 N.R.C.121 Footnote continued on next page
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Granting a Stav Would Not Harm Other Parties The granting of a stay will not harm any party. Even if the Commission were ultimately to i
- decide that the notes should be produced and the Licensing Board were to decide that the notes provided grounds to recall Ms. Dixon (neither of these assumptions is realistic in Georgia Power's t
estimation), Ms. Dixon could be recalled without significantly delaying completion of this pro-ceeding. There are still several weeks of hearing scheduled; and even after completion of testi-many while fmdings and a decision are being prepared, the evidentiaiy record could be reopened to allow limited testimony with minimal or no impact on the ultimate schedule.
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Even assuming a slight possibility of delay, that possibility should be outweighed by Inter- I d
venor's failure to develop the facts through proper means. Intetvenor has had two opportunities
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to obtain those facts directly from Ms. Dixon: at her deposition and during her testimony at the Hearing. At any point during those two interrogations, Intervenor could have asked Ms. Dixon if her recollection of events surrounding the typing of the Cash List had changed since she had spoken with her attorneys, and if so, how it had changed. Intervenor could also have asked
. Georgia Power, in interrogatories, to describe Ms. Dixon's recollection of the Cash list.u2 1
l Footnote continued from previous page (1993); Board Notification 94-07 (March 24,1994) (allegations directed at counsel); intervenor's Motion for Sub-poena of James Joiner (Dec. 23,1994); Tr.10799-821 (attempted inquiry into counsel's role in preparing responses i to requests for admissions); Tr.11100 (attempted inquiry into counsel's role in preparing response to 2.206 peti- '
tion); Tr. 11210-11 (attempted inquiry into attorney-client conununications).
W Georgia Power has never sought to protect the facts or information in Ms. Dixon's possession. Georgia Power recognizes that such facts are not protected.
What is protected by the attorney-client privilege is the client's conununication with counsel. That particular communication is kept secret. The facts underly-ing the communication, however, do not become privileged. The discovering party may have access to those facts from any source except the attorney, since Footnote continued on next page
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e i Intervenor, however, made no use of these opportunities. Since Intervenor has failed to pursue ,
.these legitimate means of discovery, he should not now be able to claim injury from Georgia ;
}. Power's legitimate attempt to protect the confidenciality ofits attorney-client communications.
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- The Public Interest Reauires Issuance of the Stav '
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The attorney-client privilege serves a very important public interest -- to encourage full ;
- and frank communications between attorneys and their clients and thereby promote broader public ;
j interests in the observance oflaw and the administration ofjustice. Upiohn. 449 U.S. at 389, git- . ,
. ing_8 J. Wigmore, Evidence 2290 (McNaughton rev.1961). The privilege recognizes that -
- sound legal advice or advocacy serves public ends and that such advice or advocacy depends on the lawyer's being fully informed by the client. E ,
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- - The Supreme Court in _Upiohn observed that if the purpose of the attorney-client privilege i t
- is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. "An uncertain privilege, or one which purports
} to be cenain but results in varying applications by the courts, is little better than no privilege at i
all." E at 393.
, Requiring disclosure of the Dixon notes prior to appellate review is inconsistent with this strong public interest. Once destroyed, the confidentiality and protection of privileged
! Footnote continued from previous page that source ofinformation is excluded by virtue of the privilege.
.lohn William Gergacz, Attorney-Corporate _ Client Privilcgg 3-41-42 (2d 'ed.1990); see also Uniohn,449 U.S. at 395 % (the protection of the privilege extends only to communications and not to facts). The facts, however, should be determirst through the normal discovery process during the period assigned to discovery, and not by in-vasion of privileged communications. Sgg Upiohn,449 U.S. at 3%.
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i communications cannot be restored. Even a temporary disclosure, or disclosure under a protec-tive order, is damaging to the purposes served by the privilege. Such a precedent would cause at-torneys and their clients to fear similar disclosures in other cases and would have a serious chilling affect on attorneys' abilities to make factual inquiries in order to advise their clients. It would cre- !
l ate the sort of uncertainty Upiohn strongly advises against.
i Conclusion ;
i For all of the reasons stated above, the Commission should stay the Licensing Board's or-der on the Dixon notes to preserve Georgia Power's attorney-client privilege until that order has l been reviewed.
Respectfully submitted, d k Ernest L. Blake, Jr.
David R. Lewis SHAW PITTMAN POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C. 20037 (202) 663-8474 r
James E. Joiner John Lamberski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.
Atlanta, GA 30308-2216 (404) 885 3360 Counsel for Georgia Power Company Dated: September 11,1995 2tM401/ DOCSDCI t.
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September 11, 1995 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commissioners 3
In the Matter of ) Docket Nos. 50424-OLA-3
^
) 50-425-OLA-3 GEORGIA POWER COMPANY, )
et al. ) Re: License Amendment
) (Transfer to Southern Nuclear)
(Vogtle Electric Generating Plant, )
Units I and 2) ) ASLBP No. 93-671-01-OLA-3 CERTIFICATE OF SERVICE I hereby certify that copies of " Georgia Power Company's Motion for Stay of i
Licensing Board Order Requiring Production of Attorney Notes of Privileged Communications," dated September 11, 1995, were served upon the persons listed on the l attached service list by deposit in the U.S. Mail, first class, postage prepaid, or where indicated by an asterisk by hand delivery, this lith day of September,1995.
k David R. Lewis I
Counsel for Georgia Power Company 9
'*E66-04 / DKSDCl s
e
,A P- DOCXETED UNITED STATES OF AMERICA USNRC .
NUCLEAR REGULATORY COMMISSION ;
% SEP 11 P3110
- Before the Commissioners 0FFICE OF SECRETARY 00CKETit!G & SERVICE j In the Matter of ) Docket Nos. 50-424-OLA-3 BRANCH
- ) 50-425-OLA-3 GEORGIA POWER COMPANY, )
et al. ) Re: License Amendment ,
) (Transfer to Southern Nuclear)
- (Vogtle Electric Generating Plant, )
Units 1 and 2) ) ASLBP No. 93-671-01-OLA-3 .
l SERVICE LIST i
' Commissioner Shirley A. Jackson
- Commissioner Kenneth C. Rogers i U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission j
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One White Flint North One White Flint North l1555 Rockville Pike 11555 Rockville Pike i l Rockville, MD 20852 Rockville,MD 20852 i
. Administrative Judge Administrative Judge Peter B. Bloch, Chairman James H. Carpenter Atomic Safety and Licensing Board Atomic Safety and Licensing Board 1
U.S. Nuclear Regulatory Commission 933 Green Point Drive
[ Washington, D.C. 20555 Oyster Point Sunset Beach, N.C. 28468 j
j Administrative Judge Stewart D. Ebneter
- James H. Carpenter Regional Adininistrator, Region II Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 101 Marietta Street, N.W., Suite 2900 Washington, D.C. 20555 Atlanta, Georb ia 30303 1
Administrative Judge Office of the Secretary Thomas D. Murphy Att'n: Docketing and Service Branch Atomic Safety and Licensing Board U.S. U.S. Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 ti k
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- Michael D. Kohn, Esq.
- Office of Commission Appellate Kohn, Kohn & Colapinto Adjudication i 517 Florida Avenue, N.W. U.S. Nuclear Regulatory Commission Washington, D.C. 20001 Washington, D.C. 20555
- Mitzi A. Young, Esq. Carolyn F. Evans, Esq.
- Charles Barth, Esq. U.S. Nuclear Regulatory Commission
- John T. Hull, Esq. 101 Marietta Street, N.W., Suite 2900 U.S. Nuclear Regulatory Commission Atlanta, Georgia 30323-0199 Office of the General Counsel One White Flint North, Stop 15B18 11555 Rockville Pike Rockville,MD 20852 Adjudicatory File Director,
. Atomic Safety and Licensing Board Environmental Protection Division ,
U.S. Nuclear Regulatory Commission Department of Natural Resources Washington, D.C. 20555 205 Butler Street, S.E., Suite 1252 ,
Atlanta, Georgia 30334
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