ML20202G197

Clarifies Re Filing of Documents in Camera W/Commission

ML20202G197
Person / Time
Site:	Braidwood
Issue date:	04/08/1986
From:	Cassel D BUSINESS & PROFESSIONAL PEOPLE FOR THE PUBLIC INTERES
To:	Mark Miller ISHAM, LINCOLN & BEALE
References
CON-#286-722 OL, NUDOCS 8604140296
Download: ML20202G197 (3)

Text

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4  % Business BPI i and Professional People for the Public Interest

( 4)% 109 North

Dearborn Street,

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• Chicago, ilhnois 60602 +

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April 8, 1 6 810 q ,.4 BY MESSENGER CE Michael Miller, Esq.

Isham, Lincoln & Beale BRM'[i .

Three First National Plaza Chicago, Illinois 60602 l

l Pe: Commonwealth Fdison Company (Praidwood l Nuclear Station, Units 1 and 2),

j A L Alt Docket Nos. 50-456/457 0 L-

Dear Mike:

L l Your letter of yesterday appears to reflect a misunderstand-l ing. The documents we filed in camera with the Commission were not provided to you under t h e'~~e x i s t i ng protective order, because t that order is not applicable to those documents. Nor, given the l nature of the information in the in camera documents, and the l

purpose for their filing, would a-dimilar protective order suf-fice. Ilo wev e r , as noted below, we are prepared to agree to a separate, different protective order with respect to the in camera documents.

Some chronology may help to clarify. I.a s t August 2, you served an interrogatory asking us to describe every oral communi-cation we have had concerning our contention. On August 16, we responded that we had communicated with various Comstock OC inspectors, and that they were the subject of our then-pending motion for a protective order.

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l Our answer continued as follows:

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s Mr. Michael Miller April 8, 1986 identify this person who clearly desired and sought anonymitp. The nature of the communication persuades Intervenors that the person has a legitimate interest in remaininq anonymous.

In contrast *o our position on the Comstock OC inspectors, we did not offer to disclose this ir.fo rma t ion pursuan t to a protective order. (It is this information, namely counsel's notes of the May 17 oral communication, and documents received f rom the source, which we filed in camera last week.)

Subsequently, on October 4, 1985, the Poard granted our motion seeking confidential treatment "regarding prospective witnesses on Intervenors' Ouality Assurance contention."

(Memorandum, p. 1.) The Poard noted that we sought " confidential treatment at this time for eleven present and former L.K.

Comstock guality control inspectors and, as necessary, for other prospective witnesses to be id en t i f ied by Intervenors at a later da te." (Id., p. 2.)

Accordingly, the Protective Order, entered on December 6, 1985, defined confidential information subject to its provisions as "the names and otherwise id en t i f yi ng information regarding certain prospective witnesses on Intervenors' Ouality Assurance contention ...."

As the foregoing makes clear, the protective order relates only to information concerning " prospective w i t ne s se s." Even af ter it was entered, we continued to object to the disclosur e o f the contents of the May, 1985 communications to you, in part because we did not (and still do not) intend to call the source as a witness (especially since we do not know his identity).

Thus, on January 9, 1986, you again asked us to describe all oral commun icat ions relatinq to our contention. Fven though we had previously disclosed the Comstock OC inspector names pursuant to the protective order, our January 27 recponse continued to object to describing the Pay, 198 5 communications, based on the same grounds we had originally cited in August, 1085.

In sum, when we filed the in camera documents with the Commission, they were not covered by the protective order, and you had never moved to compel their production, even after being advised of our continuing obiection to disclosing them. {

1 Moreover, we did not offer them as evidence on our conten-tion. Nor did we propose to call our source as a witness.

Pather, as our Prief indicates, we filed them only to the extent l

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i.s Mr. Michael Miller April 8, 1986 they might be deemed relevant to whether our contention met the five factor test for late filing.

While the existing protective order is not applicable, we are prepared to agree to an appropriate protective order concern-ing the in camera documents. However, such a protective order should be different from the existina protective order. That o rd e r was based on the particular facts concerning OC inspectors of a contractor (Comstock) at Praidwood, (see the Board's October 4, 1985 Memorandum, pp. 3-4, 5-7), who are prospective witnesses in the case. It thus permits disclosure not only to counsel, but to other persons whom counsel needs to consult for purposes of trial preparation. (Order , pp. 2-3.)

Such broader disclosure is both less needed and potentially more threatening to the in camera source, who does not appear to be a contractor employee-and who is not a prospective witness.

Indeed, it is dif ficult to perceive any legitimate need to disclose the in camera documents to persons ot her than the attorneys.

We are therefore prepared to agree to a protective order, the terms of which would be in substance as follows. Initially the in camera documents would be disclosed only to the attorneys for Applicant and to the attorneys for Sta f f. Further disclosure (if any) would be determined by the Commission (or by the Licensing Board, as appropriate), upon reauest by counsel, based on a sufficient showing of good cause for such further disclo-sure, and subj ect to appropriate sa fegua rds.

l As always, we would be happy to meet with you to discuss any (

suggestions or counter-proposals you may have in order to resolve the matter expeditiously by agreement.

At present, I see no need to comment on the rhetoric in your letter concerning the propriety of in camera submissions and the asserted waiver of work product privilege. In camera submissions a re no thing new. We are confident that this is a matter which can and should be resolved with reasonable e f for t by both siden.

1 Eincerely,

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Doug Cassel cc: FPC Commissioners Service List

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