ML20092H688
| ML20092H688 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 09/20/1995 |
| From: | Blake E GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA |
| To: | |
| Shared Package | |
| ML20092H690 | List: |
| References | |
| CON-#395-17121 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9509210145 | |
| Download: ML20092H688 (19) | |
Text
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a 00CKETED Septem er 2D 1995
'95 STP 20 P2 :48 UNITED STATES OF' AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF SECllETARY 00CKET'flG e 1,V!CE Before the Commissiones BRA 3CH in the Matter of
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Docket No. 50-424-OLA-3
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50-425-OLA-3 GEORGIA POWER COMPANY,
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et al.
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Re: License Amendment i
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(Transfer to Southern Nuclear)
(Vogtle Electric Generating Plant,
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Units I and 2)
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ASLB No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S PETITION FOR REVIEW OF ORDER TO PRODUCE ATTORNEY NOTES OF PRIVILEGED COMMUNICATIONS I.
INTRODUCTION Pursuant to 10 C.F.R. { 2.786, Georgia Power Company (" Georgia Power") petitions the 4
Commission for interlocutory review of an Atomic Safety and Licensing Board (" Licensing Board") order to produce an attorney's notes of a confidential and privileged attorney-client com-munication.L' The Licensing Board's order is cleatly erroneous because it declines to follow the law established by the Supreme Court in Upiohn v. United States,449 U.S. 383 (1981), as well as the NRC rules governing discovery of trial preparation material. Interlocutory review is ap-propriate because the order will destroy the confidentiality and privilege of the attorney-client communications recorded in the attorney's notes. The order therefore threatens Georgia Power with an immediate and serious irreparable impact which, as a practical matter, can not be E By order dated September 13,1995, the Commission stayed the Licensing Board's ruling. The order also di-rected that Georgia Power's petition for review be filed in a manner to ensure receipt by close of business on Sep-tember 20,1995, that any response be Gled in a like manner by Septe.'nber 29,1995, and that the petition and responses address the merits of the dispute. The order established a tw.*nty-page limit for these filings, exclusive of afndavits.
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alleviated through later review. The order also threatens to affect the basic structure of this pro-ceeding in a pervasive or unusual manner by turning this proceeding into an attack on counsel.
Georgia Power respectfully requests oral argument before the Commission on this impor-tant matter. Sec 10 C.F.R. s 2.763.
II.
SUMMARY
OF TIIE DECISION AND STATEMENT OF TIIE RECORD The ruling of which review is sought was made orally on the record by the Licensing Board on September 6,1995. Tr.13154-58. It requires Georgia Power to produce notes taken by Georgia Power's attomey, 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 Pl ant Vogtle. Affidavit of John Lamberski (Sept. 19,1995),16 (hereinafter "Lamberski Aff.", attached hereto). In April,1990, she typed certain slides that were used in Georgia Power's /.pril 9,1990 presentation to the NRC (concerning restart of Vogt e Unit I after the March 20,1990 site area emergency). She also l
typed a list of diesel generator starts that had been compiled by the Vogtle Unit 1 Superintendent, Mr. Jimmy Paul Cash, in connection with diesel stad information presented in the slides. Lam-berski Aff.16 and n.2; Tr. 8104,8113-14. The accuracy of the diesel start information has been the subject of an Office ofInvestigations ("Ol") investigation and Department of Justice inquiry prompted by allegations 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.
Lamberski Aff.,14.,
The notes at issue were taken by Georgia Power's counsel, Mr. Lamberski, in 1992 while investigating the events into which 01 and the Department of Justice were inquiring. Lamberski Aff., j 6 7; Tr. 4616. Ms. Dixon was deposed by Intervenor in this proceeding on July 20,1994, and testified and was cross-examined in this proceeding on June 9,1995. Tr. 8089-8176.
Following Ms. Dixon's testimony in this proceeding, Intervenor moved to compel pro-duction of the Dixon notes.2 Intervenor argued that he needed the notes to resolve differences in Ms. Dixon's recollection between the 1994 deposition and the 1995 hearing testimony.E Georgia Power responded by asserting that the notes are pilvileged attorney-client communications and attorney work product immune from disclosure.E On August 3,1995, the Licensing Board ruled that Ms. Dixon's communications were privileged communications of a client to an attorney, but ordered an in camera inspection of the notes to determine whether application of the privilege would further its underlying purposes.2 On August 8,1995, Georgia Power moved for reconsideration of the Licensing Board's August 3,1995 Memorandum and Order, to the extent it suggested that the attorney-client l
Intervenor's Motion to Compel Production of Licensee's Notes ofInterview of Ester Dixon (June 30,1995).
A t Georgia Pcwer believes that the differences in Ms. Dixon's deposition and heating testimony are minor and merely reDect her review prior to and at the hearing of contemporaneous records, as well as her refreshed recollec-tion of other events which placed the preparation of Mr. Cash's list and the slides in sharper focus. Tr. 8093-4, 8102,8126. At tne hearing, Intervenor's counsel developed the chronology of Ms. Dixon's activities by reference to her time sheet. Tr. 8098-8120. In her deposition, Intervenor's counsel did not use documents or otherwise assist Ms. Dixon to recall the historic sequence of events.
Georgia Power Company's Response to Intervenor's Motion to Compel Production of Licensee's Notes of Inter-t view of Ester Dixon (July 17,1995).
2 Memorandum and Order (Request for Discovery Conceming Ester Dixon), LBP-95-15, slip op. (Aug. 3,1995).
i.
privilege might be outweighed by a showing of need." On August 10, the Licensing Board ac-knowledged that the attorney-client privilege is absolute when it attaches, but requested further briefing on the standards set out in the Unichn case. Tr. 10820-21. Intervenor and Georgia Power responded on August 15 and on August 18,1995, respectively.E On September 5,1995, the Licensing Board denied Georgia Power Company's Motion 4
for Reconsideration. Tr.12942. The Board's decision, however, does not appear to have turned on whether the attorney-client privilege may be outweighed by need. Indeed, the Board made no reference to this issue, nor any finding of need. Instead, it appears that the Licensing Board sim-ply decided that the attomey-client privilege should not apply in this instance. The Board ex-1 plained that Ms. Dixon was involved in a situation in which her interest in confidentiality was at 4
a minimum; 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.
8 After an in camera inspection of the notes on September 6 (Tr.13078 ), the Board con-i cluded "there was no material that required protection because it's attorney work product and would reveal the workings of Mr. Lamberski's mind," and ordered release of the notes. Tr.
13154. The Board later added that it recognized it was placing a " limitation" on a Supreme Court doctrine of attorney-client privilege.11 at 13157. The next day, when Georgia Power Georgia Power Company's Motion for Reconsideration of Order Regarding Request for Discovery Concerning W
Ester Dixon (Aqu:t 8,1995). "The attorney-client privilege, if an[d] [ sic] when attached to a cemmunication (and excepting, of course a valid waiver), is absolute, and there is no ' balance' to be ' tested,' and no 'needs' test, as might be the case with a qualilled privilege." Arcuri v. Trumn Taj Mahal Associates,154 F.R.D. 97,105 (D.N.L 1994).
1 Response to Licensee's Motion for Reconsideration Regarding the Notes of the Ester Dixon Notes (sic) and Brief on Attorney Client Privilege (Aug. 15, 1995); Georgia Power Company's Memorandum of Law on the Attorney Client Privilege (Aug. 18,1995).
The transcript incorrectly states that the documents were received in evidence. They were not.
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announced it would seek appellate review, the Board suggested that the question was whether communications between an attomey and an employee with no personal interest should still be considered exempt [ir privileged] under the Upjohn doctrine. Tr. 13319-20.
Ill.
STATEMENT Wily Tile LICENSING BOARD'S ORDER IS ERRONEOUS A.
The Order is Erroneous Because it Fails to Follow Controlline Supreme Court Precedent on the Attorney-Client Privilene The Licensing Board's order is clearly erroneous because it is inconsistent with control-ling Supreme Court precedent in Upjohn. The Board decided that the attomey-client privilege was inapplicable because Ms. Dixon did not have a personal interest in confidentiality and "[t]he only thing she needed to do was to share basically ministerial-type facts." Tr.12943. But under Uojohn, an employee's personal interest in confidentiality is irrelevant in determining whether the attorney-client privilege attaches to the employee's communications with counsel for the cor-poration. Under Unjohn, the privilege exists to protect the corporate-client's interest--not employees -to allow and encourage the corporate attomey to ascertain the facts so that the attor-ney can provide the best and most informed advice to the corporation. The fact that the commu-nicated information consists of" ministerial-type facts" is also irrelevant under Upjohn. All that matters is that the communication was made as part of counsel's efforts to ascertain facts neces-sary to advise and represent his corporate client.
The Court in Uojohn set forth a five-part test to determine whether the privilege applies in the corporate setting. The five criteria are:
0
- 1. The information is necessary to supply the basis for legal advice to the corporation or was ordered to be communicated by superior officers.
- 2. The information was not available from " control group" management.
- 3. The communications concerned matters within the scope of the employee's duties.
- 4. The employee was aware she was being questioned in order for the corporation to ob-tain legal advice.
- 5. The communications were considered confidential when made and kept confidential.
449 U.S. at 394-95. The communications reflected in the Dixon notes satisfy each of these crite-ria. Lamberski Aff., $$ 6,8-10.E No part of this test requires ascertaining whether an employee has a " personal interest" in the confidentiality of her communications with counsel. The interest of the employee is not even one of the criteria articulated in Unichn. Instead, Upiohn examines only the corporate interest--
whether the information is necessary to supply the basis for legal advice to the corporation. This l
i focus on the corporate interest is appropriate because the privilege belongs to, and operates for j
the protection of, the corporation. ht at 390 ("[T]his Court has assumed that the privilege ap-plies when the client is a corporation."); Citibank v. Andros,666 F.2d 1192,1195 (8th Cir.1981)
("The privilege... belongs to the corporation.").
Similarly, none of the Upiohn criteria require ascertaining whether information in an em-ployee's possession is ministerial or not. The fact *L.: Ester Dixon's role in the communications was "to share basically ministerial-type facts" is entirely consistent with the application of the Satisfaction of these factors was addressed in the pleadings below (su, g, Gecrgia Power Company's Motion 1
for Reconsideration of Order Regarding Request for Discovery Concerning Ester Dixon (Aug. 8,1995) at 5-6) and was undisputed. - -
1 privilege in this instance. The Supreme Court held in Upjohn 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 lawyer to enable him to give sound and informed advice." 449 U.S. at 390.
The Court recognized that the first step in the resolution of any legal problem is ascertaining the factual background, and that information will often be possessed by employees who are not part of the " control group":
Middle-level -- and indeed lower-level -- unployees can, by ac-tions within the scope of their employment, embroil the corpora-tion in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corpo-rate counsel if he is adequately to advise the client with respect to such actual or potential difficulties.
Id at 391. One would expect that the information "[m]iddle-level" or " lower-level" employees could contribute would ollen consist of" basically ministerial-type facts." The protection for communications between employees and counsel for the corporation afforded under Upjohn does not depend on the "importance" of the information,per se, but rather on the necessity of the in-formation -- however mundane or " ministerial" -- for counsel to provide sound and informed le-gal advice to the corporation. Indeed, often the most crucial information upon which cases such as this turn amounts to nothing more than " ministerial-type facts."
Implicit in the Board's ruling is the notion that, because the communications between counsel for Georgia Power and Ms. Dixon involved the investigation of facts, those communica-tions are not orotected by the attorney-client privilege. The mere fact that factual investigation may be involved in a legal task does not revoke the protection accorded privileged attorney-client communications. As explained in Arcuri v. Trumo Tai Mahal Associates,154 F.R.D. 97 (D.N.J.
1994),
communications engaged in for the purpose of obtaining and pro-viding " advice" or " opinion" are protected, and may, on the attor-ney's part, constitute something more than telling the client "do this" or " don't do that." In this court's view, where an attorney, pursuant to inquiries by a client, engages in an investigation, the purpose of which is to provide a basis for responding to the client's queries, and then discusses with the client the investigation, this communication falls within the attorney-client privilege. It would be extraordinarily difficult to separate, in such a situation, the at-torney's discussion with his client relating to any cold, hard " facts" which might be interspersed in such a discussion from the privi-leged content. And... if the revelation of part of the communica-tion would lead to an inference as to the confidential content of the communication, it too should come under the protection.
It is far more appropriate under these circumstances, when seeking the factual content underlying the communication, to seek these from the client.. than to do so from the attorney and risk the very real danger ofintruding upon the confidential communication.
154 F.R.D. at 104.2 Indeed, the same type of factual investigation that occurred here was suffi-cient in Unjohn to invoke the protection of the attorney-client privilege:
In Unjohn, counsel for Upjohn conducted an internal corporate in-vestigation conceming questionable overseas payments...[T]he overseas payment issue raised legal questions with the IRS and SEC. Thus, a required element of the investigation was that it be performed with legal skills in order that the questionable payments be fully understood from a legal perspective. As the Supreme Court noted, "The first step in resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant."
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Georgia Power has never sought to protect the facts and information in Ms. Dixon's possession. Georgia Power S
recognizes that such facts are not protected (tes llmoh,339 U.S. at 395-96), and indeed Intervenor has had multi-ple opportunities (of which he has not taken advantage) to ascertain all of the relevant facts from Ms. Dixon and Georgia Power. Ses discussion on page 12 lafra. All Georgia Power has argued and maintains is that it is im-proper to elicit those facts by reading an attorney's protected notes. Srg John William Gergacz, Attorney-Corporate Client Privilege 3-41-42 (2d ed.1990)("The discovering pany may have access to those facts from any source ex-cept the attorney, since that source ofinformation is excluded by virtue of the privilege."). " Discovery was hardly intended to enable a teamed profession to perform its functions.. on wits borrowed from its adversary." Upiohn, 449 U.S. at 396.
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John William Gergacz, Attorney-Corocrate Client Privilege 3-18-19 (2d ed.1990)(citations omitted).
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Because the communications at issue here satisfy all five factors under the Upjohn test, the Commission should reverse the Board's ruling and determine that these notes are absolutely protected under the attorney-client privilege. There is no basis to depart from the law established by the bjghen court of the land.
B.
The Licensing Erred in Allowing Discovery of Work-Product Without Any Showing of Need and Hardship The Licensing Board also erred in allowing discovery of attorney work-product material.
The Board failed to make the " substantial need" and " undue hardship" findings that are neces-sary to overcome the work product immunity.
The work product doctrine is codified in the NRC's Rules of Practice at 10 C.F.R. }
2.740(b)(2), which provides:
1 l
A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (b)(1) of this section and prepared in anticipation of or for the hearing by or for another party's representative (including his attorney, consultant, surety, in-demnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the i
preparation of his case and that he is unable without undue hard-ship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the presiding officer shall protect against disclosure of the mental impressions, conclusions, opinions, or le-gal theories of an attorney or other representative of a party con-cerning the proceeding.
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This is a long-standing rule,* and like Rule 26(b)(3) of the Federal Rules of Civil Procedure l
from which it is derived, it reflects the " strong public policy that a lawyer's work be entitled to j
privacy." Unichn,"449 U.S. at 397-98.
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'As reflected in the rule quoted above, the work product doctrine protects from disclosure 1
"(1) documents and tangible things otherwise discoverable; (2) prepared in anticipation oflitiga-j tioni (3) by the party or their attorney," Henry Allen. Diane Marrone. and Sman Settino,
).
CLI-94-8,39 N.R.C. 336,357 (1994). The Dixon notes satisfy this test. As discussed above (at 4
i 2-3, supra), the notes were taken by Georgia Power's counsel while investigating events into which O! and the Department of Justice were inquiring. Tr. 4616; Lamberski Aff.16-7. Where b
an attorney prepares a document in the c'ourse of an active investigation focusing upon specific i
events and a specific possible violation by a specific party, it has litigation sufficiently in mind I
for that document to qualify as attorney work product. Safecard Services. Inc. v. SEC,926 F.2d s
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l 197,1203 (D.C. Cir.1991).2 Thus, the Dixon notes are documents that were prepared by 1
counsel in anticipation oflitigation.
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Moreover, notes of a witness interview by an attorney with a client employee, are pre-t cisely the type of material sought to be protected under the work-product doctrine.
l Although th[e] language (of Rule 26] does not specifically refer to l-memoranda based on oral statements of witnesses, the Hickman L
court stressed the danger that compelled disclosure of such memo-randa would reveal the attornefs mental processes. It is clear that W. Sgg Commonwealth Edison Co. (Zion Station Units I and 2), ALAB-196,7 A.E.C. 457,460 (1974); Long is-land Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82 82,16 N.R.C. I144,1159-62 (1982).
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- The Licensing Board earlier ruled that documents prepared during the NRC investigation are attomey work
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_ product because of the reasonable belief that there would be some form of enforcement litigation. Georgia Power Cn. (Vogtle Electric Generating Plant, Units I and 2), LBP-93-18,38 N.R.C.121,123-24 (1993).
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l this is the sort of material the draftsmen of the Rule had in mind as deserving special protection.
Uojohn,449 U.S. at 400. " Forcing an attorney to disclose notes and memoranda of witnesses' oral statements is particularly disfavored because it tends to reveal the attorney's mental proc-esses...'what he saw fit to write down regarding witnesses' remarks.. the statement would be his [the attorney's] language, permeated with his inferences."' Id. at 399-400 (citations omitted)
Were discovery of such work-product to be permitted much of what is now put down in writing would remain unwritten.
An attorney's thoughts, heretofore inviolate, would not be his own.
Inefficiency, unfairness and sharp practices would inev;tably de-velop in the giving oflegal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing.
And the interests of the clients and the cause ofjustice would be poorly served.
Ilickman v. Taylor,329 U.S. 495,511 (l947).
Under the Commission's rules (like the Federal Rules), where discovery of work-product material is sought, the presiding officer must first determine whether the party seeking discovery "has substantial need of the materials... and... is unable without undue hardshin to obtain the substantial equivalent of the materials by other means." 10 C.F.R. 2.740(b)(2)(emphasis added); ac IIouston Lighting & Power Co. (South Texas Project, Units 1 and 2), CLI-87-8,26 N.R.C. 6,10-11 (1987). This finding is a necessary first step before a presiding officer may or-der production of work-product material. Only after this finding is made must the presiding offi-cer consider the extent to which disclosure may reveal the mental impressions of the attomey.
See 10 C.F.R. 2.740(b)(2)("In ordering discovery of such materials when the reauired showing
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has been made, the presiding officer shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney...") (emphasis added).2 The Licensing Board omitted the first step entirely. It made no finding that the Inten'e-nor has substantial need for the Dixon notes and could not obtain the substantial equivalent of those notes by other means. Instead, the Licensing Board jumped to the end of the work product analysis required by 10 C.F.R. { 2.704(b)(2) in holding that there are no materials that require protection as attorney work product because they would reveal the workings of Mr. Lamberski's mind. Tr.13'54. The Board therefore failed to follow the work product doctrine as established by the Rules of Practice.
Nor did Intervenor make the required showing in this case. As Georgia Power pointed out in the pleadings below,E Intervenor has had two opportunities to obtain the underlying facts reflected in the Dixon notes directly from Ms. Dixon -- at her deposition and during her hearing testimony -- and on both occasions asked a substantial number of questions about her involve-ment and on either occasion could have asked Ms. Dixon specifically if and how her recollection i
of events sun'ounding the typing of the Cash list had changed.$ Intervenor could also have asked Georgia Power in interrogatories to describe Ms. Dixon's recollection of the Cash list.
- There is an even higher standard of protection for " opinion work product." Opinion work product may be dis.
coverable only upon extraordinary justification. Snuth Inas, s.upra. CLI 87 8,26 N.R.C. at 10, riting Hickman v.
Taylor,329 U.S. 495,513 (1947); In re Mumhv. 560 F.2d 326,336 (8th Cir.1977).
- Georgia Power Company's Response to Intervenor's Motion to Compel Production of Licensee's Notes of Inter-view of Ester Dixon (July 17,1995) at 10; Georgia Power Company's Motion for Reconsideration of Order Regard-ing Request for Discovery Concerning Ester Dixon (Aug. 8,1995) at 6-7.
2 This is distinguishable from the situation where a party was unsuccessful in its attempt to obtain information by other means, e.g., by deposition where a witness was unable to answer a question pertaining to that information.
Su Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit I), LBP-82-82,16 N.R.C.1144,1167 (1982).
1 Intervenor made no such use of these opportunities to obtain the underlying facts without inquir-1 ing into privileged communications.* Accordingly, Intervenor should not now be able to de-mand disclosure of privileged communications in order to develop factual information that he declined or failed to pursue in discovery. Facts should be determined by the normal discovery process during the period assigned for discovery, and not by invasion of privileged communica-tions. " Discovery was hardly intended to enable a learned profession to perform its functions.
on wits borrowed from the adversary." Hickman,329 U.S. at 516. The Board therefore has no basis for rewarding Intervenor for its inadequacy in pursuing discovery and in cross-examining witnesses.G j
In summary, there was no showing or finding of" substantial need" and " undue hardship"
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required by the NRC rules. Therefore, the Licensing Board's ruling on work product should also
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be reversed.
1.
IV.
STATEMENT WlIY COMMISSION REVIEW SilOULD HE EXERCISED j
A.
Interlocutory Review is Appropriate Under Section 2.786 The Commission has the discretion to exercise appellate review of an otherwise interlocu-tory order, in a manner akin to a motion for directed certification, if the petitioner can satisfy ei-ther of the two criteria in section 2.786(g). Seouovah Fuels Coro. (Gore, Oklahoma Site),
b
- As previously noted, Georgia Power has never sought to protect discovery of relevant facts from proper sources, such as Ms. Dixon, but has merely maintained that is imprcper to elicit those facts by reading an attorney's protected notes. Ss.c note 10 supra.
As Georgia Power also argued below, a desire to impeach or corroborate a witness' testimony is generally insuf-2 ficient to overcome the protection afforded to an attomey's record's ofinterviews. Georgia Power Company's Re-sponse to Intervenor's Motion to Compel Production of Licensee's Notes ofInterview of Ester Dixon (July 17, 1995) at 8, citing In re Grand Jurv Investigation. 599 F.2d 1224,1233 (3d Cir.1979); Young v. United Parcel Serv-itc,88 F.R.D. 269,271 (D.S.D.1980)..
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CLI-94-11,40 N.R.C. 55,59 (1994); Safety Light Coro. (Bloomsburg Site Decontamination),
1 CLI-92-09,35 N.R.C.156,158 (1992). Both of the section 2.786(g) criteria are met here.
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- 1. Tile RULING TIIREATENS GEORGIA POWER WITII IMMEDIATE AND SERIOUS IRREPARABLE IMPACT l
In the case at bar, if Georgia Power is required to produce its attorney notes, the confiden-i tiality and privilege of those notes will be destroyed. Such a destruction of the privilege consti-tutes an immediate and serious irreparable impact which as a practical matter can not be 1
alleviated through later review of the presiding officer's final decision. Once the confidentiality l
of the communications is lost, it cannot be restored.
3 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 Journal v. F.B.I.,595 F.2d 889,890 (1st Cir.1979), quoted in Texas Utilities Gener-4 ating Co. (Comanche Peak, Units I and 2), CLI-83-6,17 N.R.C. 333,334 (1983). "This need for i
timely protection is particularly urgent where the discevery sought is... allegedly blanketed by the absolute attorney-client privilege." In re Von Bulow,828 F.2d 94,99 (2d Cir.1987).*
l The appropriateness ofinterlocutory review of an order that would require production of i
a confidential document has been recognized by the Commission in this very case. In Georgia f
R Sgg ghg Admiral Insurance Co. v. U.S. Dist. Ct. for the Dist. of Arizcan,881 F.2d 1486,1491 (9th Cir.1989)
("In view of the irreparable harm a party likely will suffer if :..a.cously required to disclose privileged materials or communications, courts have recognized the propriety of using mandamus for the review of orders compelling dis-covery in the face of assertions of absolute privilege."); U.S. Dep't of Energy v. Brimmer. 776 F.2d 1554,1559 (Temp. Emer. Ct. App.1985), _ccrL denied,475 U.S.1045 (1986)("[0]nce the disclosure is made, the erroneous compulsory disclosure 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 be ordered af-ter appellate review of the final decision (Boughton v. Cotter Coro.10 F.3d 746,749 (10th Cir.1993)), but such a remedy is not reasonable in this case, which is now three years old.
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Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI-94-05,39 N.R.C.190,193 i
(1994), the Commission granted the NRC Staff's motion for interlocutory review of a Licensing 5
4 Board order requiring the Staff to produce a confidential OI report. The Commission explained:
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Because the adverse impact of that release would occur now, the alleged harm is immediate. The impact of the order to release a re-port that would otherwise be held in confidence is irreparable and could not be alleviated through future review of a final decision of i
the Licensing Board, i
11 Similarly, in Pacific Gas & Electric Co. (Diablo Canyon Nuclear Plant, Units 1 and 2),
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CLI-93-18,38 N.R.C. 62 (1993), the Commission stated that disclosure of an INPO document l
seemed to fall within the narrow class ofinterlocutory orders for which Commission review y
l might be appropriate (but the controversy was resolved by an agreement among the parties).
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These same principles apply here and call for interlocutory review to prevent the irreparable de-struction of confidentiality and privilege of communications between Georgia Power and its counsel.
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- 2. THE RULING AFFECTS THE BASIC STRUCTURE IN A PERVASIVE AND UNUSUAL MANNER The Licensing Board's ruling also threatens to affect the basic structure of this proceeding f
in a pervasive and unusual manner. Georgia Power is very concemed that Intervenor will use the i
i Board's ruling as a precedent to invade other privileged attomey-client communications. Interve-nor has repeatedly sought to tum this proceeding into an attack on opposing counsel.
For example, early in this proceeding, Intervenor moved to compel production of affida-i vits prepared by counsel to memorialize discussions with certain Georgia Power employees. In-tervenor's Motion to Compel Production of Affidavits in the Possession of Georgia Power Co.
4 l l t
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l (July 23,1993), demed, Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 & 2),
LBP-93-18,38 N.R.C.121 (1993). Intervenor later submitted allegations that Georgia Power's counsel had engaged in a cover-up. Ses Board Notification 94-07 (Mar. 24,1994). Further, in the first phase of this proceeding, Intervenor sought to subpoena one of Georgia Power's attor-neys, and then suggested that this counsel be sequestered and required to withdraw from the pro-ceeding. Motion for Subpoena of James Joiner (Dec. 23,1994); Letter from M. Kohn to E.
Blake and D. Lewis (Dec. 27,1994). In the current round of hearings, Intervenor has repeatedly attempted to invade the confidentiality of communications between Georgia Power and its attor-neys.8 These attempts included an ex pse presentation to the Licensing Board in which Inter-venor alleged that Georgia Power's counsel acted improperly in preparing discovery responses, a response to a notice of violation, and a motion for summary disposition, and again proposed call-ing one of Georgia Power's counsel as a witness. Tr. 12045-69,12131-37,12245-58,12261-71.
Georgia Power views Intervenor's attempt to obtain Ms. Dixon's notes as part ofInterve-nor's continuing trial tactic of attacking counsel to harass Georgia Power and interfere with its representation. IfIntervenor succeeds in subverting the proceeding in this fashion, its comple-tion could be delayed considerably. Declining to review the Board's ruling would in effect sanc-tion Intervenor's misconduct, adversely affecting the proceeding in a pervasive and unusual manner.
Tr. 7519 (attempted inquiry into an employee's communications with counsel); Tr. 10799-821 (attempted in-a quiry into counsel's role in responding to requests for admissions); Tr. I 1100 (attempted inquiry into counsel's role in response to 2.206 petition); Tr. I 1210-11 (attempted inquiry into attorney-client communications); Tr. 13942-46 (attempted inquiry into counsel's role in preparing a supplemental discovery response). Src alig Intervenor's Supple.
mental Motion to Compel Interview Notes and Other Documents Known to Georgia Power Company's Counsel When Preparing the Response to the Notice of Violation (July 24,1995)..
H.
Appellate Review Is Also Appropriate Under Section 2.786(b)(4)
Review of the Licensing Board's order is also appropriate pursuant to the considerations set forth at 10 C.F.R. 2.786(b)(4). As discussed above, the Board's order is a departure from and contrary to established law, in that it declines to follow the law established by the Supreme Court in Uojohn. The Board's ruling constitutes a prejudicial procedural error, because it will in-vade and destroy the confidentiality that exists between Georgia Power and its counsel.
Appellate review is also appropriate under section 2.786(b)(4) because a substantial and important question oflaw has been raised, and review of this question is in the public ir terest.
The attorney-client privilege serves a very important public interest -- to encourage full and frank communications between attomeys and their clients and thereby promote broader public interests in the observance oflaw and the administration ofjustice. Upjohn. 449 U.S. at 389. The privi-lege 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 In Unichn, the Court stated that if the purpose of the attomey-client privilege is to be served, the attomey and client must be able to predict with some degree of certainty whether par-ticular discussions will be protected. "An uncertain privilege, or one which purports to be certain but results in varying applications by the courts, is little better than no privilege at all." E at 393.
Requiring disclosure of the Dixon notes is inconsistent with this public interest. Once de-l stroyed, the confidentiality of privileged communications cannot be restored. Even a disclosure under a protective order is damaging to the purposes of the privilege. Such a precedent would cause attorneys and their clients to fear similar disclosures in other cases and would have a seri-ous chilling affect on attorneys' abilities to make factual inquiries in order to advise their clients.
lt would create the sort of uncertainty Upjohn strongly advises against. Ss.e Lamberski Aff., j 11.
The Licensing Board's ruling, if sustained by the Commission, would also create a prece-dent that would allow invasion of the confidential communications between the NRC Office of General Counsel's ("OGC") and the NRC Staff. In the course ofinvestigations, enforcement ac-tions, or other proceedings, attomeys in OGC may communicate with an NRC employee to as-certain facts necessary to advise and represent the Commission. Under the Licensing Board's ruling, if that NRC employee did not have a personal interest in confidentiality and if the factual matters inquired into were sufficiently mundane, the communications of NRC attorney's and their notes would also be subject to discovery. Clearly, such an invasion would hamper the abil-ity of NRC attomeys to represent and advise the Commission and chill necessary communica-tions. Such a result is clearly unacceptable if NRC lawyers are expected to provide the most informed advice. It is no less unacceptable in the corporate setting. 1
~.
V.
CONCLUSION For all of the reasons stated above, the Commission should review the Licensing Board's order on the Dixon notes, and should rule that the Board's order was erroneous in that it failed to l
protect Georgia Power's attomey-client and work-product privileges over those notes. The Com-mission should also provide an opportunity for oral argument on this important matter.
i 1
i Respectfully submitted,
~
l
)( D Ernest L. Blake, Jr.
David R. Lewis l
SHAW, PITTMAN, POTTS & TROWBRIDGE l
2300 N Street, N.W.
j Washington, D.C. 20037 j
(202) 663-8474 i
James E. Joiner John Lamberski i
TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.
Atlanta, GA 30308-2216 (404) 885-3360 Counsel for Georgia Power Company i
Dated: September 20,1995 I
, )
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