ML20093N912

Informs That Intervenor Has Failed to Disclose to Commission or to Gap That Legal Authority Exists & Directly Adverse to Principal Case Cited.W/Certificate of Svc

ML20093N912
Person / Time
Site:	Vogtle
Issue date:	10/25/1995
From:	Blake E GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC OFFICE OF COMMISSION APPELLATE ADJUDICATION (OCAA)
References
CON-#495-17253 OLA-3, NUDOCS 9510300041
Download: ML20093N912 (3)

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}N SHAw, PirrMAN, Porrs & TROWBRIDGE a panTwenews, mcovono paonessionat commonarious 2300 N STREET. N.W. 1 sot FAmu camory omrve McLEAN, VIROWIA22102-8004 WASHINGTON. D.C. 20o37-1128 (202) 663-8000 (202 8 3 8037 no y o 75-2'721

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@ SER UN Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission f, Washington, DC 20555 01 6

Re: Georgia Power Company, et al. (Vogtle Electric Generating Plant, Units 1 and 2): Docket Nos. 50-424-OLA-3,50-425-OLA-3

Dear Sirs:

Subsequent to the filing of Georgia Power Company's Petition for Review of Order to Produce Attorney Notes of Privileged Communications (" Petition for Review"), it has come to the attention of counsel for Georgia Power that there exists legal authority which Intervenor has failed to disclose to the Commission or to Georgia Power that is directly adverse to the principal case cited by Intervenor in his Opposition to the Petition for Review

(" Opposition"), Samaritan Foundation v. Goodfarb,862 P.2d 870 (Ariz.1993). In his Opposition, ntervenor argued that, "[b]ased on the reasoning set forth in Samantan, the inescapable conclusion is that the Dixon interview notes are not subject to the attorney-client privilege." Opposition at 7. Moreover,Intervenor averred, "the Samantan decision conforms with the Upjohn precedent," and "[t]he Samaritan decision is applicable to the case at bar."

Opposition at 5,10. What Intervenor has failed to disclose, however, is that in April 1994, five months after the Supreme Court of Arizona decided Samantan, the Arizona state legislature specifically overruled that decision by passing House Bill 2161, amending Q 12-2234 of the Arizona Revised Statutes relating to attorney-client privileged communications.2 The intent of the Arizona legislature in passing H.B. 2161 was to " enact []

M As amendeo, i 12-2234 provides that any communication is privileged between an attorney for a corporation, governmental entity, partnership, business, association cr other similar entity or an employer and any employee, agent or member of the entity or employer regarding acts or omissie of or information obtained from the employee, agent or member if the communication is either:

1. For the purpose of providing legal advice to the enJty or employer or to the employee, agent or member.

2. For the purpose of obtaining information in order t( provide legal advice to the entity or employer or to the employee, agent or member.

i12-2234(B).

9510300041 951025 PDR ADOCK 05000424 7

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SHAW, PITTMAN, POTTS o TROWCRIDGE A PARTNGR$ NIP $NCLUDING PROFE84 0N AL CORPOR ATIONS Office of Commission Appellate Adjudication October 25,1995 Page 2 the U.S. Supreme Court's standard as enunciated in Upjohn Co. v. United States into Arizona law" and " replace the case law authority of Samaritan Foundation v. [Goodfarb] and conform the elements of Arizona's corporate attomey-client privilege to those of the Federal courts and the majority of other states' courts." Arizona Statt. Senate, Minutes of Committee on Judiciary, Statement of Greg Cygan, Assistant Research Analyst, March 22,1994 at 2. See also Arizona State Senate and House of Representatives, Report of Conference Committee, Minority Report ("The purpose of the bill is to override the Arizona Supreme Court's decision in Samaritan Foundation v. Goodfarb."). The Governor of Arizona signed H.B.

2161 into law on April 26,1994.

Respectfully submitted, hk/Y Ernest L. Blake, Jr.

cc: (See attached service list) 231645 01 s DOC 5DCI

-__-_____m__. .______ -__ ___-_-

1-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

- Before the Commissioners  :

In the Matter of - .) Docket Nos. 50-424-OLA-3 i

) 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 ,

SERVICE LIST  !

i

• Commissioner Shirley A. Jackson

• Commissioner Kenneth C. Rogers U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 3 One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville,MD 20852 Rockville,MD 20852 Administrative Judge Administrative Judge Peter B. Bloch, Chairman James H. Carpenter .

Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 933 Green Point Drive 1 Washington, D.C. 20555 Oyster Point Sunset Beach,N.C. 28468 Administrative Judge Stewart D. Ebneter  !

James H. Carpenter Regional Administrator, Region Il 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, Georgia 30303 f

i

' 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 t Washington, D.C. 20555

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• Michael D. Kohn, Esq. ' Office of Commission Appellate Kohn, Kohn & Colapinto Adjudication 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 Service upon the persons listed above was by deposit in the U.S. Mail, first class, postage prepaid, unless indicated by an asterisk in which case service was by facsimile.

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