ML20093M139

Informs That Brief in Support of Claims of Privilege Re Documents Other than Generated in Connection W/Ob Cannon Preparation of Testimony on Behalf of Applicant Moot. Certificate of Svc Encl.Related Correspondence

ML20093M139
Person / Time
Site:	Comanche Peak
Issue date:	10/18/1984
From:	Watkins M BISHOP, COOK, PURCELL & REYNOLDS, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Bloch P, Grossman H, Jordan W Atomic Safety and Licensing Board Panel
References
CON-#484-571 OL-2, NUDOCS 8410190409
Download: ML20093M139 (7)

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RELATED CORRESPONDENQ N law OrrsCCs or # D BIS H OP, LIB ERM AN, COO K, PU RCELL & R EYNOLDS c) 'A 3200 SEVENTCENTH STRECT, N.W. g IN N RM WAS H I N G TON, D.C. 2 o O 3 6 '

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October 18, 1984 Peter B. Bloch, .Esq. Dr. Walter H. Jordan Atomic . Safety and. Licensing 881 West Outer Drive Board Oak Ridge, Tennessee 37830 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Herbert Grossman, Esq.

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Texas Utilities Electric Company, et_ al. (Comanche Peak Steam Electric Station, Units 1 and 2), Docket Nos. 50-445-2, 50_446-2 Gentlemen:

Pursuant to the telephone conference on October 11, 1984, counsel for Applicants have reviewed documents proposed to be produced to the Board and the parties by Oliver B. Cannon & Son, Inc., in response to the Board's subpoenas. We reviewed the Cannon documents on the evening of October 17, 1984. Applicants' review was intended to identify documents as to which Applicants would claim a privilege, due to 0.B. Cannon's status as a

, -consultant to Applicants in connection with the license proceedings.

As we understand the Board's instructions (see tr. 19,304-305), Applicants were to "tle a brief in support of any claims of

(' privilege relating to docun.ents other than those generated in 8440190409 841018 gDRADOCK 05000445 j

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connection with.O.B. Cannon's pre of Applicants in this proceeding.garationno'f Applicants' testimony review on of behalf' the O.B., Cannon' materials has'not identified any'such documents, a we-therefore believe that the requirement for a brief.is moot.gd Certain documents in O.B. Cannon's possession were prepared by Applicants' representatives in' anticipation of litigation,' and these. documents are privileged. These' documents include:

1.'. Nicholas:S..Reynolds lett'er to Joseph J. Lipinsky dated 12/3/83,: discussing and-enclosing Mr. Lipinsky's draft testimony regarding his 8/8/83 Trip Report.

2. Draft testimony of J.J. Lipinsky referred to in item 1, consisting of 12 pages, double-spaced, in question-and-answer form regarding Comanche Peak material storage, workmanship, ANSI.

requirements, coating integrity, morale problems, and observations / opinions.

3. Draft testimony of J.J. Lipinsky and J.J. Norris, consisting of 22 pages, double-spaced, in question-and-answer form regarding concerns noted in Lipinsky 8/8/83 Trip Report

[ undated, prepared between 12/1/83 and 12/23/83].

4. J.J. Lipinsky memo to file dated 1/10/84 discussing a conference with J.J. Lipinsky, Ralph A. Trallo, N.S. Reynolds and McNeill Watkins, to prepare testimony and to discuss ASLB hearings.

1 The Board seemed to establish a temporal limitation on documents that Cannon should produce, e.g., "up until the time ,

that you began preparing the affidvait for the motion for summary

. disposition" (tr. 19,304-305). As a practical matter, we believe that the issue .of privilege in this context relates to the nature of the document in question, not the time that it was prepared.

- Accordingly, Applicants do not object.to O.B. . Cannon's production of numerous documents prepared during calendar 1984 that are responsive to the Board's subpoenas, where.no privilege applies.

2 One category of documents that does not relate to 0.B.

Cannon's preparation of materials for litigation may be privileged. These would include notes, letters or other writings reflecting J.J. Lipinsky's communications with counsel regarding the January 4, 1984 interview with representatives of the NRC.

The attorney-client privilege that may protect these documents

! from disclosure is Mr. Lipinsky's privilege, and not Applicants',

I and counsel for Applicants have advised counsel- for O.B. Cannon

, that the decision to invoke or waive the privilege is Mr.

L Lipinsky's.

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5. ' Draft. testimony of R.A. Trallo, consisting of 3 pages, double-spaced, in question-and-answer-form, regarding J.J.

. Lipinsky's 8/8/83 Trip Report [ undated, but prepared in January, 1984].

6. -J.J. Lipinsky memo to Robert B. Roth dated 2/13/84, discussing preparation of attached affidavit addressing the 8/8/83 Trip Report.

7. J.J. Lipinsky memo to file dated 5/14/84 regarding conference with J.J. Lipinsky, C. Thomas Brandt, and McN. Watkins to prepare testimony for ASLB proceedings.

8. J.J. Lipinsky memo to file dated 7/5/84, discussing conferences with'McN. Watkins regarding Lipinsky's testimony in ASLB proceedings.

9 McN. Watkins letter to J.J. Lipinsky dated 9/26/84.

discussing and enclosing drafts of affidavit of J.J. Lipinsky, Applicants' motion for summary disposition regarding Trip Report of J.J. Lipinsky, and Appl'icants' statement of material facts-regarding Trip Report of J.J. Lipinsky as to which there is no genuine issue.3

10. Draft affidavit of J.J. Lipinsky, consisting of 18 double-spaced pages, identified in item 8.

11. J.J. Lipinsky handwritten notes, one page, regarding changes and corrections to draft affidavit identified in item 9

[ undated, but prepared between 9/27/84 and 9/29/84].

12. Applicants' draft motion for summary disposition, consisting of 14 double-spaced pages, identified in item 8.

13. Applicants' draft statement of material facts, consisting of 2 double-spaced pages, identified in-item 8.

Federal Rule of Civil Procedure 26(b)(3) provides a privilege as to materials prepared for trial by a party's attorneys and consultants, _and requires a special' showing by the parties seeking discovery of these documents. See Virginia Electric & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 P.R.D. 397, 410 ("In essence, if anyone prepares documents for a party in anticipation of litigation or for trial, documents so prepared are not discoverable except upon a showing of 'substan-tial need' and ' undue hardship'"). The Commission has expressly adopted Rule 23(b)(3)'s principles:

1 3 Also enclosed with this package was the affidavit of C. Thomas Brandt regarding Trip Report of J.J. Lipinsky, with Attachments A through N, executed September 26,-1984. Mr.

Brandt's affidavit was filed with the Board on. October 1, 1984.

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s A' party may obtain discovery of' documents.and tangible things otherwise discoverableLunder paragraph (b)(1) ofLthis section'and prepared in anticipation of or for Lthe . hearing by or_ for another party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon aishowing that the party seeking discovery has . substantial need of'

- the materials in the preparation of this [ sic]

' case and that he is unable without undue hardship to obtain the substantial equivalent of tdue materials by other means.- '

10'C.F.R. 52.740(b)(2). Eac'.f of the documents listed above was prepared by_ Applicants'_' attorneys or by. employees of its consultant, O.B. Cannon. Each of the documents was prepared-in anticipation of the Board's hearings-in this proceeding. . .

r Accordingly,-Applicants claim the privilege for trial preparation materials applicable to.these documents.- Moreover, the documents identified in items 1, 9, 12 and 13 are also subject to the privilege'for attorney work product. Hickman v. Taylor, 329TU.S.

495.(1947). See also Consumers Power Co. (Midland Plant, Units-1 and 2), ALAB-691,-16 N.R.C. 897, 917 (1982) (privilege for attorney work product could extend to drafts of testimony).

Applicants claim the attorney work product privilege for one remaining document:

14. McN. Watkins. memorandum regarding 8/8/83 Trip Report of J.J. Lipinsky, consisting of two single-spaced pages [ undated, prepared during period 11/19/83-11/22/833 Attached to the memorandum are the transcribed notes by McN. Watkins of interviews conducted by McN. Watkins and other Applicant counsel-of site employees on 10/31/83, 11/1/83, 11/16/83, and 11/18/83.

Both the memorandum and the interview notes constitute attorney work product, and as such are privileged from disclosure. Hickman v. Taylor, supra. These materials'were taken, apparently inadvertently, from Applicants' counsel's-offices by someone from O.B. Cannon after a meeting on November 22, 1983. Applicants' counsel requested R.B.-Roth, President of Cannon, to return.the original and any copies of the' document, and Mr. Roth's letter dated November 23, 1983 (a copy of which Cannon is producing to the Board and the parties) indicates that he did so. On reviewing the Cannon materials in response to the Board's subpoenas, however, we discovered that Cannon had-retained at least one copy. We believe that the inadvertent, and l

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certainly unintentional, disclosure of these materials to 0.B.

Cannon representatives did not operate to waive the work product privilege.

spectfully_ submitted,

/)fBhnc h McNeill Watkins II Counsel for Applicant, cc: All parties

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-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

,In the Matter of )

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TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-2 and COMPANY,

-et_al. ) 50-446-2 (Comanche Peak Steam Electric ) (Application for Station, Units l'and 2) ) Operating Licenses)

CERTIFICATE OF SERVICE I hereby certify that copies of'the foregoing document in the above-captioned matter was served upon the following persons by hand-delivery,* overnight delivery,** or by deposit in the United States mail,*** first class, postage prepaid, this 18th day of October, 1984:

• Peter B. Bloch, Esq.- *** Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U. S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

• Mr. William L. Clements

• Dr. Walter H. Jordan Docketing & Services Branch 881 West Outer Drive U. S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Washington, D.C. 20555

• Herbert Grossman, Esq.

U. S. Nuclear Regulatory *Stuart A. Treby, Esq.

Commission Office of the Executive Washington, D.C. 20555 Legal Director U. S. Nuclear Regulatory

• • • Mr. John Collins Commission Regional Administrator Washington, D. C. 20555

-Region IV U.S. Nuclear Regulatory *** Chairman, Atomic Safety and Commission Licensing Board Panel 611 Ryan Plaza Drive U.S. Nuclear Regulatory Suite 1000 Commission Arlington, Texas 76011 Washington, D.C. 20555 I

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• • • Renea Hicks, Esq.

• Anthony Z. Roisman, Esq.

Aasistant Attorney General Executive Director Environmental Protection Trial Lawyers for Public Justice Division 2000 P. Street, N.W.

P.O. Box 12548 Suite 600 Capitol Station Washington, D. C. 20036 Austin, Texas 78711

• Ellen Ginsberg, Esq.

• • • Lanny A. Sinkin Atomic Safety and Licensing l 114 W . 7th Street Board Panel Suite 220 U'. S. Nuclear Regulatory Austin, Texas 70701 Commission Washington, D. C. 20555 l

h McNeill Watkins II cc: Homer C. Schmidt John W. Beck Robert Wooldridge, Esq.

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