ML20107H972
| ML20107H972 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/07/1984 |
| From: | Watkins M BISHOP, COOK, PURCELL & REYNOLDS, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | |
| References | |
| CON-#484-025, CON-#484-25 OL-2, NUDOCS 8411090333 | |
| Download: ML20107H972 (7) | |
Text
.
,)E 5
2
?r" PEU-TED CorJ;;;:Ci?Damg y
November 7, 1984 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.BEFORE THE ATOMIC SAFETY AND LICENSING EOARD'
-E
' In the Matter of:
)
)
TEXAS UTILITIES ELECTRIC
)
Dockets Nos. 50-445-2 and COMPANY, et al.
)
50-446-2
)
-(Comanche Peak Steam Electric
)
(Application for Station, Units 1 and 2)
)
Operating Licenses)
APPLICANTS' MEMORANDUM IN SUPPORT OF THE PRIVILEGE FOR MATERIALS PREPARED IN ANTICIPATION OF LITIGATION Intervenor agrees (brief dated October 26, 1984,.pp.
1-2) that-it may only have discovery of documents prepared.
in anticipation of litigation if Intervenor shows (1) that j
.it has substantial need of the materials, and (2) that it is unable to obtain the substantial equivalent of these
. materials by other means without undue hardship.
Inter-(
venor's brief certainly reflects that it wants to examine l
these documents, but that showing does not meet the standard set forth in 10 C. F. R. $2.740(b)(2).
In particular, Inter-venor fails to show that it cannot acquire the substantial equivalent of the materials by other means.
l.
i4 L
O 0
p 1%0 Q
3SDS
.i, :
6 1.
Intervenor may acquire the information it seeks by other means.
Intervenor's theory.is that J.J..Lipinsky was
" pressured, coerced, or influenced" by Applicants or Applicants' counsel to change his views.
Intervenors
- speculate that drafts of -testimony and related documents will tend'to confirm that theory.
Mr. Lipinsky has submitted. prefiled testimony.
He is subject to deposition and to interrogatories.
He will be
. subject to cross-examination.
Intervenor raay test its r
theory.by.any of these means.
If, for example, Intervenors assume'that Applicants or Applicants' counsel dictated
" exactly what Mr. Lipinsky would or would not say" (Intervenor-brief p. 3), Intervenors may rimply ask Mr.
Lipinsky whether that is so.
Intervenors may inquire of Mr.
Lipinsky as to the circumstances under which drafts of his testimony were prepared, and underwent further revision.
Intervenors are ' free to elicit from Mr. Lipinsky the atmosphere attending conferences at which he prepared his testimony...Intervenor's right to depose or to cross-examine Mr. Lipinsky is.the means by which it may acquire the information it seeks.
Intervenor's right to elicit this information hardly presents " undue hardship," as required by the standard of 10 C.F.R. $2.740(b)(2).
D 4
t
. _....._...-,,_._.___..,_..-.. -..____ _......... ~ _
. 2.
Sound policy consideration underlie the privilege for trial preparation materials.
The privilege for trial preparation materials derives from~the Supreme Court's analysis of the effect disclosure j
of such materials would have on-the judicial process:
Were such materials open to opposing counsel on
' ~
demand, much of what is now put down in writing would remain unw,ritten.
An attorney's thoughts, heretofore. inviolate, would not be his own.
Inefficiency, unfairness and sharp practices
-would-inevitably develop in the giving of legal advice and in the preparation oficases for trial.
The effect on the legal' profession would be demoralizing.
And the interests of the clients and the cause of justice would be poorly served.
Hickman v.
Taylor, 329 U.S.
495, 511 (1947).
As the Advisory Committ'ee notes on F.R.C.P.
26(b)(3) state, "the requirement of a special showing for discovery of trial preparation materials reflects the view that each side's informal evaluation of.its case should be protected, that
~
each side'should be encouraged to prepare independently, and that one side should not automatically have the benefit of the detailed preparatory work of the other side."
Trial preparation materials reflect the strategies, f
thoughts, lines of inquiry, and judgments of counsel and of witnesses.
Forced disclosure of those materials would. chill communications between and among a party's representatives.
such-disclosure serves neither the interests of justice nor of.the parties, especially where, as here, the information sought may be elicited by other means.
-.1 3.
Certain documents are protected by_the privilege for attorney-work product.
. Applicants' letter to the Board dated October 18,.1984, noted that the documents identified in items 1, 9,
12, 13 and_1<4 consist of attorney work product, and are privileged on that basis.
Under Hickman v. Taylor, 329 U.S. at 511, the privilege applie's to " interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs,-and countless other tangible and intangible" things and activities.
These documents are not subject to discovery even under the standard of 10 C.F.R. {2.740(b)(2).
Long ' Island Lighting Co. (Shoreham Nuclear Pcwer Station, Unit 1),
(" Opinion work product is not discoverable, so long as.the material was in fact prepared by an attorney or other agent in anticipation of litigation * * * ").
4.
Applicants should not be required to disclose certain materials even if the Board rules-that Intervenor has met the standard for disclosure.
10 C.F.R.
$2.740(b)(2) includes a special instruction
'regarding the disclosure of certain materials:
In ordering discovery of such materials when the required showing has been made, the presiding officer'shall protect against disclosure of the mantal impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding.
Even if the Board rules that Intervenor has meet its burden for discovery of trial preparation materials, Applicants should not be required to produce materials m
.- reflecting the specified matters.
The questions that will arise in that event would be, first, what documents or portions of documents are protected from disclosure, and second, who should decide what is protected.
f Should the Board rule that we must produce any or all of the trial preparation materials, Applicants request leave to file a motion with the Chairman of the Atomic Safety and Licensing Board Panel, pursuant to 10 C.F.R. 52.721, for the appointment of an alternate, Board, alternate or special master to screen the documents prior to their release to the parties.
Respectfully submitted, McNeill Watkins II Bishop, Liberman, Cook Purcell & Reynolds 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 (202) 857-9800 Counsel for Applicants November 7, 1984 L
~ ~.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
d
)
TEXAS UTILITIES ELECTRIC
)
Docket Nos. 50-445-2 and COMPANY, _et _al.
)
50-446-2
)
(Comanche Peak Steam Electric
)
(Application for Station, Units 1 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 7th day of November,-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 cf the Executive Washington, D.C.
20555 Le -
.irector U.
S Nuclear Regulatory
- Mr. John Collins Commission Regional Administrator 7735 Old Georgetown Road Region IV Room 10117 U.S.
Nuclear Regulatory Bethesda, MD 20814 Commission 611 Ryan Plaza Drive
- Chairman, Atomic Safety and Suite 1000 Licensing Board Panel Arlington, Texas 76011 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 L
- Renea Hicks,.Esq.
- Anthony Z.
Roisman, Esq.
. Assistant Attorney General Executivt Director Environmental Protection Trial Lawyers for Public Justice Division 2000 P.
- Street, N.W.
P.O.
Box 12548 Suite 600 s
Capitol Station
Washington, D.
C.
20036 Austin,_ Texas-78711
- Ellen Ginsberg, Esq.
- Juanita Ellis Atomic Safety and Licensing President Board Panel CASE.
U.
S. Nuclear Regulatory 1426 S.
Polk Street Commission Dallas, TX 75224 Washington, D.
C.
20555
[
McNeill Watkins II cc Homer C..Schmidt John W.
Beck Robert Wooldridge, Esq.
- r I
l