ML20107A954
| ML20107A954 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/31/1984 |
| From: | Roisman A Citizens Association for Sound Energy, TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#484-846 OL-2, NUDOCS 8411020035 | |
| Download: ML20107A954 (8) | |
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UNITED STATES OF AMERICA MC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING OAE -
Ai0 :59 7:n In the Matter of
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TEXAS UTILITIES GENERATING
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Docket Nos. 50-445-2 COMPANY, et al.
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and 50-446-2
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(Comanche Peak Steam Electric
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Station, Units 1 and 2)
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5 CASE'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM NRC STAFF The NRC Staff claims the right to withhold from discovery notes taken oy persons at EG&G or working with EG&G that reflect conversations oetween Staff personnel and the authors under the alleged authority of 10 C.F.R. Part 2, S2.740(o)(2). (Staf f Third Response to CASE Discovery (10/29/84))
The portion of the regulation re11ed 'upon oy the Staf f deals with " mental Impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding" and on its f ace has nothing to do with conversations Detween experts and those directing them as to what to prepare and how to prepare it, particularly where the notes are made by persons other than lawyers and reflect what they perceived to De their assignment.
Moreover, the Staff oojections relate to several conversations in which lawyers were only a part of the
,y I-Staff representation and some notes which apparently do not i
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In short, the section cited is unrelated to the actual documents for which privilege is claimed.
e In addition, the Staff cannot argue here that the documents it seeks to withhold are even part of the work product privilege since they nave represented tnat tne EG&G Report was oeing prepared in the ordinary course of the Staff work (as required oy federal law) of investigating issues raised aoout CPSES and not in anticipation of litigation.
Notes taken in the regular course of doing ousiness are not immune f rom discovery (Advisory Committee Note to Rule 26(o)(3), 48 F.R.D.
at 501):
Materials assemoled in the ordinary course of ousiness, or pursuant to puolic requirements unrelated to litigation, or for other non-litigation purposes are not under the qualified immunity provided oy this suodivision.
Even were no nearings oeing held on harassment and intimidation, the Staff would oe required to conduct an investigation of narassment and intimidation matters.
Staf f claims that prior to seeing the EG&G Report it did not i
even nave a position on this issue and thus it cannot legitimately claim the special work-product privilege on oehalf of the attorney working for a party oecause in the adversarial sense the Staff was not a party.
The lawyers could not have oeen disclosing case strategy oecause their client did not have a a
position for wnich they could te developing strategy.
In urging this Board to postpone all nearings until completion of the TRT C
1/ Tnere is no question that Mr. Ippolito and other non-lawyer Staff employees are not " representatives" of the Staf f within the meaning of 52.740(o)(2).
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$ l Review (of which the EG&G Reporn is a part) the Staff argued that it could not have an overall position until the entire TRT Review d
was completed and essentially downgraded the EG&G Report to the views of some experts rather than the Staf f position.
See NRC Staff Motion for Postponement of Hearing (10/23/84); TR. 19,320-321, 323 (T.C. 10/11/04).
Attorney' work product simply does not reacn communications with such experts.
A more disturDing aspect of the Staf f position is that it is 5
l wholly inconsistent with earlier Staf f positions.
First, in a remarkable and unacceptable turnabout in position the NRC Staff now claims that the EG&G Repor t was tied to the Staf f's I
I adversarial position in this proceeding -- a point of view rejected on the f ace of the EG&G transmittal memo in which it is represented to De a portion of an ongoing Staf f investigation into matters at CPSES and is released as a Doard notification.
(Board Notification,84-157 (9/17/84)
In fact, the document was offered purely as the experts' own views, untainted Dy any adversarial intent.
Staff counsel said (TR. 18,033):
g The report was produced Dy a team of professionals in var ious disciplines under the direction of CG&G Idaho, Inc.,
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whom the NRC contracted with to investigation [ sic] the work climate at Comanche Peak Steam Electric Station and to develop an independent expert opinion as to whether or not a climate of intimidation was created among QA/QC personnel Dy CPSES Management such that the safety of the plant might De compromised.
(Emphasis added)
I The EG&G Report was represented as Deing so independent that it took three weeks for the Staf f to review it and decide if they would adopt its conclusions.
(TR. 18,033-034)
If the report is truly independent then the conversations whose contents are Deing withheld cannot possioly De privileged, r
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Second, Staff counsel, in arguing for inclusion of the EG&G Report as late pre-filed testimony, represented that the Staff lawyers were totally removed from the process of developing the evidence (TR. 18,070-071):
M R.
TREBY:
Tnese are independent experts.
We've nad minimal contact with them.
Mg only contact has oeen to mail out transcripts as they have oeen reproduced and we would nave no dif ficulty with people having a meeting.
Mr. Mizuno reminds me that we had --
MR. MIZUNO:
One oriefing session ourselves.
JUDGE BLOCH:
The Staf f was present at one oriefing.
MR. TREBY:
Well, it was a conference call in which we asked some questions as to what they were filing and made a suggestion witn regard to format.
This alleged detachment was apparently also an explanation for wny the Staf f counsel did not share with the parties the completed analyses oy EG&G or its agents of the 1979 and 1983 Survey, notn of wnich would nave Deen valuaole for Dr. Goldstein to review in preparing his testimony.
See TR. 18,058-059 where CASE expresses its concern that relevant data was withheld from i t.
Now Staff argues that several meetings occurred and that the contact was more than " minimal".
Staff cannot have it noth ways.
Having once represented that the EG&G Report was an independent study with which Staff nad " minimal" contacts it cannot now claim that those contacts are privileged oecause they represent attorney's thought processes.
Even if the Staff could somehow convert notes made oy
" Independent experts" from " minimal" conversations with Staff memoers (apparently including some lawyers) regarding a report e
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. oeing prepared.as part of the Staff's statutory obligations and as part of the data needed to formulate a Staf f position on the merits of the issues into attorney work product 2/ there is a compelling need for the data.
The Staff is offering EG&G as independent.
Of crucial significance is how the EG&G position was shaped oy the Staf f and to what extent they sought to do a tnorough on-site analysis as descrioed ny Dr. Goldstein and were directed or prevented f rom doing so.
These matters go directly to the weight and credioility of the EG&G Report and the notes taken oy EG&G personnel represent the oest evidence of what directions they were given.
This need is particularly relevant to the Staf f which stands in the hearings as above the confrontational position of the parties and holds itself out as a neutral protector of the puolic interest.
That aura and the implied weight it carries may De wholly inappropriate if the EG&G Report was prepared with some severely limiting conditions imposed oy the Staf f.
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It is apparent f rom reading, the Staf f description of the documents that much, and mayDe all, of the material is unrelated to attorney work product either Decause it is notes of statements made oy non-Jawyers or does not reflect any mental impressions, conclusions, opinions or legal theories of an attorney.
Thus, at a care minimum, the Staff must produce redacted versions of the notes taken ny the EG&G personnel and cannot exclude the entire document.
f
For the reasons stated we urge the Board to direct the Staf f to produce the withheld information.
Respectfully submitted, id J/L kNTHONY Z.
ISMAN Trial $aw g s for PuDlic Justice, PC 2000 P Street, N.W.,
Suite 611 Washington, D.C.
20036 (202) 463-8600 Counsel for CASE M
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Oc toDer - 31, 1984 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
.In the Matter of
.)
)
TEXAS UTILITIES GENERATING
)'
COMPANY, et al.
)
' Docket Nos. 50-445-2
)
and 50-446-2 (Comanche' Peak Steam Electric-
)
Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE By my signature Delow, I hereDy certify that true and correct copies of CASE's Motion to Compel Production of Documents From NRC Staff have Deen sent to the names listed Delow this 31st f
day of OctoDer,1984, Dy:
Express mail where indicated oy *;
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Hand-delivery where indicated Dy **; and First Class Mail unless otherwise indicated.
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Administrative Judge Peter B. Bloch 1
U.S. Nuclear Regulatory Commission I'
4350 East-West Highway, 4th Floor I
Bethesda, Maryland 20814 HerDert Grossman
-Alternate Chairman ASLB Panel p
U.S. Nuclear Regulatory Comm'ission 14350 East-West Highway, 4th Floor Bethesda, Maryland 20814 Dr. Kenneth A. McCollom, Dean Division'of Engineering, Architecture and Technology Oklahoma State University Stillwater, Oklahoma 74074
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- Dr. Walter H. Jordan 881 W.-Outer-Drive Oak Ridge, Tennessee 37830 Ms.-Ellen Ginsoerg, Law Clerk U.S. - Nuclear Regulatory Commission 4350 East / West Highway,'4th Floor Bethesda, Maryland 20814 Nicholas S. Reynolds, Esquire Bishop, Linerman, Cook, Purcell & Reynolds
-1200 17th Street, N.W.
Washing ton, D.C.
20036 Stuart Treoy, Esquire Geary S. Mizuno, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission 7735 Old Georgetown Rd., 10th Floor Bethesda, Maryland 20814 Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washing ton, ~ D.C.
20555 I
Renea Hicks, Esquire Assistant Arevancy General Environmental Protection Division Supreme Court Building Austin, Texas 78711-Mrs. Juanita Ellia President, CASE 1426 S. Polk Dallas, Texas 75224-
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1 ANTHONY Z ROIS 1
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