ML20149M747
| ML20149M747 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/22/1988 |
| From: | Matchett S HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5677 OL-3, NUDOCS 8802290041 | |
| Download: ML20149M747 (7) | |
Text
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LILCO, February 92,1908 t
00LKETE0 09RC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'88 FEB 24 P3 :46 Before the Atomic Safety and Licensinst Board
[C f r;.
h BRAm,H i
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
) (School Bus Drivers)
Unit 1)
)
LILCO'S MOTION TO COMPEL ANSWERS TO LILCO'S TIURD SET OF INTERROGATORIES AND MOTION TO IIOLD DECISION IN ABEYANCE On February 10,1988, Suffolk County filed its "Answers to LILCO's Third Set of Interrogatories and Requests for Production of Documents Regarding Role Conflict of School Bus Drivers to Suffolk County and New York State"("Answers"). The County re-fuses to respond to one of the interrogatories (no. 38) based on an erroneous application of the work product doctrine;M the County's answer to one other (no. 41) is inadequate.
Pursuant to 10 C.F.R. S 2.740(f), LILCO moves to compel complete answers to these in-terrogatories.
LILCO also requests that the Board hold its decision on this motion in abeyance pending further supplementation of the County's answers. LILCO has asked counsel for the County to reconsider its responses to the interrogatories referred to herein and to supplement them as necessary. As recently as February 17, Counsel agreed to "look c
y In LILCO's view, Suffolk County also has misapplied the attorney work product doctrine in its response to LILCO Interrogatory No. 39, which requested that the Coun-ty identify the "causes of role conflict and the factors existing on Long Island which could lead to role conflict" that it referred to Jn an earlier interrogatory response.
Since the County in fact answered this interrogatory, however, and indicated it would supplement its response if "further research analysis and investigation by Professor Cole" leads to the identification of additional "causes" and "f actors" LILCO does not now move to compel an additional response, 0
g22gh g2 35 p
0
i 1.
. o into" that request. It is possible that the parties will settle the disputes raised herein without Board intervention; however, LILCO is filing this motion to compel today in order to satisfy the timeliness standard of 10 CFR S 2.740(f) and thereby preserve its rights.
DISCUSSION A.
Li! CO Interrogatory No. 38 LILCO Interrogatory No. 38 reads as follows:
38.
In your response to LILCO Interrogatory No.1, Suffolk County's Answers to LILCO's First Set of Interrogato-ries and Document Requests Regarding Role Conflict of School Bus Drivers (Jan. 19,1988), at 3, you refer to Piofessor Cole's "contacts with other ex rts on the subject." Please identif y all such contacts p/
Suffolk County answered as follows:
A nswer. At this time, any contacts between Professor Cole and other experts regarding the nature or causes of role con-filet in general, and, more particularly, Suffolk County's con-tentions that role conflict will substantially reduce the num-ber of available bus drivers in the event of a Shoreham emergency, have been made at the request of counsel. A c-cordingly, Suffolk County objects to this interrogatory on the ground that it seeks information priv!!eged at this time from discovery by the work product doctrine.
I The work product doctrine lends a qualified privilege to "documents and tangible things otherwise discoverable under [10 C.F.R. S 2.740(b)(1)] and prepared in 2/
LILCO's Interrogatory No.1 asked Suffolk County to idantify their witnesses and, for each intended expert witness, to state the expected subject matter of his testimo-ny, the substance of f acts and opinions in his testimony, and a summary of the grounds for each opinion. The pertinent part of Suffolk County's response, which LILCO sought to clarify in Interrogatory No. 38, stated as follows:
Apart from the survey 3 noted above, his (Professor Cole's]
testimony will be based upon his general knowledge of litera-ture in the field, and contacts with other experts on the sub-ject.
Suffolk County's Answers to LILCO's First Set of Interrogat< rL:s and Document Re-quests Regarding Role Conflict of School Bus Drivers 7.! 3 Qan.19,1988).
o 3
anticipation of or for the hearing by or for another party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent)". 10 C.F.R. $ 2.740(b)(2).
Work product is discoverable "only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Id. The purpose of the doctrine is "to shield each attorney's thought processes and preparatory efforts from those of his adversary so as not to disclose trial strategy or legal conclusions." Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facill-ty), LBP-85-38,22 NRC 604 at 627 (1985).
The County's use of the work product doctrine in this instance is wholly improp-er. All Interrogatory No.1 requested was that Suffolk County identify its witnesses, and state the expected subject matter of their testimony and a summary of the grounds for their opinions. The County identified just one witness - Professor Cole - but then stated that Professor Cole's testimony "will be based upon contacts with other experts on the subject." When LILCO asked the County to identify those contacts, the County refused, saying the contacts "have been made at the request of counsel."
If the County intends to rely on other experts for its case, it should be required j
.l to name them so LILCO can depose them and obtain relevant documents through dis-covery. The County should not be allowed to rely on those other experts second-hand, la, through Professor Cole, and thereby shield thcw experts from discovery because Professor Cole contacted them at the request of the County's lawyers. See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17,17 NRC 499, 494 (1983), aucting 8 Wright and Miller, Federal Practice and Procedure, Civil l
5 2023, at 194 (1970)("the work prnduct concept furnishes no shield against discovery, by interrogatories or by deposition, of f ac's that the adverse party's lawyer has learned, or the persons uom whom he has learned such f acts").E i
- i 1
l 3/
On February 12, 1988, the County identified nine new witnesses in addition to 1
Professor Cole. On February 16 the County idertified another (the lith) witness. If (footnote continued)
Q B.
Interroratory No. 41 LILCO Interrogatory No. 41 reads as follows:
41.
Are you aware of any contacts or communications in which any person or group has attempted to persuade schools or school districts (or representatives or em-ployees of schools or school districts) not to participate in LILCO's auxiliary school bus driver arrangement or otherwise not to cooperate with LILCO with regard to the evacuation of schools during a Shoreham emergen-cy? If so, please identify such contacts and communi-cations. To the extent that such information is avail-able to you or can be obtained, please include, for each contact and communication, the school or school dis-trict contacted and the person talked with, the date of each contact, and the substance of each conversation.
Please produce any documents related to such con-tacts.
The County answered that it was generally aware that contacts between members of the public and school officials had taken place over the years, but added that "on infor-mation and belief, the specific information concerning particular contacts or communi-cations requested by this Interrogatory is as accessible to LILCO as it is to Suffolk County." Answers at 7. Since the latter statement concerning accessibility of infor-mation simply is not true, LILCO mover to compel a more complete response.
Both SuffoIP County and New York State have maintained the position that school districts are separate political entitles outside the control of the State or Coun-ty. But in light of the fact that Suffolk County has named eight school officials as wit-l 1
nesses in this case, it cannot seriously be argued that information about contacts be-j tween schools and outside pe5ons or groups "is as accessible to to LILCO as it is to Suffolk County," at least with regard to the schools represented by the County's (footnote continued) any of these witnesses are among the experts contacted by Professor Cole, the County should be required to say so. If not, the County should be required to identify the ex-perts that Professor Cole has contacted and upon whom Professor Cole will base his testimony.
(
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witnesses. Those witnesses clearly are in a better position to know about such contacts l
than is LILCO. LILCO asks the Board to compel the County to disclose any such specif-ic information.
CONCLUMON LILCO requests that the Board order Suffolk County to answer Interrogatories Nos. 38 and 41. However, LILCO respectfully asks that the Board hold its decision on the instant motion to compel in abeyance pending further notification from LILCO that the interrogatories at issue have not been adequately supplemented by the County, P.espectfully submitted, W
. YGKIl4l Ja61es N. ChrEtman '
Mary Jo Leugers Scott D. Matchett Counsel for Long Island Lighting Company Huaton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: February 22,1988 l
LILCO, February 22,1988 s
DXKEiEf-U5NFC
'8B FEB 24 P3:46 CERTIFICATE OF SERVICE
$CkE1Yti$NYEI BRANCH In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S MOTION TO COMPEL ANSWERS TO LILCO'S THIRD SET OF INTERROGATORIES AND MOTION TO HOLD DECISION IN ABEYANCE were served this date upon the following by Federal Express as indicated by one asterisk, or by first-class mall, postage prepaid.
James P. Gleason, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board Boa.d Panel 513 G11moure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C. 20555 Dr. Jerry R. Kline
- George E. Johnson, Esq.
- Atomic Safety and Licensing Richard G. Bachmann, Esq.
Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North East-West Towers, Rm. 427 11555 Rockville Pike 4350 East-West Hwy.
Rockville, MD 20852 Bethesda, MD 20814 Herbert H. Brown, Esq.
- Mr. Frederick J. Shon
- Lawrence Coe Lanpher, Esq.
Atomic Safety and Licensing Karla J. Letsche, Esq.
Board Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commission South Lobby - 9th Floor East-West Towers, Rm. 430 1800 M Street, N.W.
4350 East-West Hwy.
Washington, D.C. 20036-5891 Bethesda, MD 20814 Fabian G. Palomino. Esq.
- Secretary of the Commission Richard J. Zahnleuter, Esq.
Attention Docketing and Service Special Counsel to the Governor Section Executive Chamber U.S. Nuclear Regulatory Commission Room 229 1717 H Street, N.W.
State Capitol Washington, D.C. 20555 Albany, New York 12224 Atomic Safety and Licensing Alfred L, Nardelli, Esq.
Appehl Board Panel Assistant Attorney General U.S. Nuclear Regulatory Commission 120 Broadway Washington, D.C. 20555 Room 3-118 New York, New York 10271 I
Spence W. Perry, Esq.
- Ms. Nora Bredes William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Evan A. Davis, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 E. Thomas Boyle, Esq.
- Stephen B. Latham, Esq.
- Suffolk Cctunty Attorney Twomey, Latham & Shea Building 158 North County Complex 33 West Second Street Veterans Memorial Highway P.O. Box 298 Hauppauge, New York 11788 Riverhead, New York 11901 Dr. Monroe Schneider Mr. Philip McIntire North Shore Committee Federal Emergency Management P.O. Box 231 Agency Wading River, NY 11792 26 Federal Plaza New York, New Yori< 10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223 Newb.% Le Scott D. Matcliett Hunton & Williams 707 East Main Street i
P.O. Box 1535 Richmond, Virginia 23212 DATED: February 22,1988 I