ML20206T550
| ML20206T550 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/17/1987 |
| From: | Zahnleuter R NEW YORK, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3174 OL-3, NUDOCS 8704230202 | |
| Download: ML20206T550 (10) | |
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e 00CKETED USNRC April 17,1987
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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Before the Atornic Safety and Licensing Board
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
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STATE OF NEW YORK RESPONSE IN OPPOSITION TO "LILCO'S MOTION TO COMPEL STATE OF NEW YORK TO PRODUCE DOCUMENT The State of New York hereby opposes "LILCO's Motion to Compel State of New York to Produce Document," dated April 3,1987 (herainaf ter referred to as LILCO's Motion). For the reasons specified below, LILCO's Motion should be denied.
I. INTRODUCTION The su.,;ect of LILCO's Motion is a draf t legal memorandum which analyzes provisions of New York State's Environmental Conservation Law and associated regulations.- One of the New York State Department of Environmental Conservation's attorneys, Marc S. Gerstman, prepared the draf t legal memorandum. Mr. Gerstman prepared the memorandum at the request of Mr. Langdon Marsh and at the request of the undersigned counsel for the State of New York in anticipation of Mr. Marsh's deposition.
Mr. Marsh is the Executive Deputy Commissioner of Environmental Conservation of the 8704230202 870417 4
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4 State of New York and he had been dasignated as a witness on behalf of the State of New York. The draf t legal memorandum at issue sets forth the results of as much of Mr.
Gerstman's legal research as could be completed before Mr. Marsh's deposition.
The State of New York declined to produce the draf t legal memorandum on the grounds of attorney work product doctrine and attorney client privilege. However, subsequent to the filing of LILCO's Motion, the State of New York withdrew Mr. Marsh as a witness. The State of New York continues to assert that the draf t legal memorandum is protected by attorney work product doctrine and attorney client privilege, but, more importantly, asserts that LILCO's Motion is now moot.
Accordingly, LILCO's Motion should be denied.
II. The Withdrawal of Mr. Marsh As a Titness Renders LILCO's Motion Moot LILCO's Motion, at 3, begins its discussion of this matter by admitting that the draf t legal memorandum appears to be protected by attorney work product doctrine and attorney-client privilege:
At first blush, it may appear that Mr. Gerstman's memorandum is protected under attorney-client and work product privileges, as New York State asserts, because it contains legal analysis and was prepared by an attorney.
i The essence of the remainder of LILCO's discussion is that these protections should be 1
discounted because Mr. Marsh stated at his deposition that he would " draw on" the draf t legal memorandum. Marsh Deposition Tr. at 6. LILCO's Motion then expresses a need for the draf t legal memorandum because it "will be relied on by Mr. Marsh as the basis for the
-1 opinions in his astimony" and becausa "LILCO has a right to explore the basis of a witness' testimony." LILCO's Motion at 6.
However, in a letter to the Board, dated April 13,1987, the State of New York informed the Board and the parties that Mr. Marsh was being withdrawn as a witness.
Consequently, LILCO now has no c.eed for the draf t legal memorandum because the draf t i
legal memorandum does not constitute what LILCO refers to as the " basis" of Mr. Marsh's testimony. There simply will be no testimony. This development renders LILCO's Motion moot and LILCO's Motion should be denied on that basis.
111. THE DRAFT LEGAL MEMORANDUM IS PROTECTED BY ATTORNEY WORK PRGOUCT DOCTRINE in light of the fact that LILCO's Motion is now moot, no further response to LILCO's Motion is necessary. However, the State of New York does not waive its assertions of attorney client privilege and attorney work product doctrine, and, therefore, submits the following.
LILCO's Motion, at 3, concedes that the draf t legal memorandum is attorney work product:
At this time LILCO cannot dispute the claim that the Gerstman memorandum is work-product.
Nevertheless, LILCO maintains that the draf t legal memorandurn is discoverable under 10 CFR 2.740(b)(2) because LILCO can make a showing of substantial need. As discussed below, the draf t legal memorandum is indeed protected from discovery.,
1 Attorney work product is always protected from discovery when it consists of the mentalimpressions, conclusions, opinions or legal theories of an attorney. Fed. R. Civ. P.
26(b)(3); in Re Murphy,560 F. 2d 326,336 (Sth Cir.1977); Bogosian v. Gulf Oil Corp.,738 F. 2d 587 (3rd Cir.1984). Pursuant to 10 CFR 2.740 (b)(2), the Board must protect against disclosure of these forms of attorney work product, which is exactly what the draf t legal memorandum is.
10 CFR 2.740 (b)(2)'does provide, in limited instances, that discovery of attorney work produce may be had:
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.
As discussed in Section 11 above, LILCO has no need for the draf t legal memorandum because Mr. Marsh will not be offering any testimony at all. Further, LILCO's Motion makes no attempt to show why LILCO would be unable without undue hardship to request that its own attorneys conduct legal research of the provisions of the New York State Environmental Conservation Law and associated regulations. The statutes and regulations are public documents that could be studied by LILCO's attorneys quite easily. LILCO fails to satisfy either of the two requirements set forth in 10 CFR 2.740 (b)(2).
In a recent discovery dispute between the Governments and LILCO, LILCO relied on a similar rationale to assert attorney work product doctrine as the basis for withholding a certain document. That document was a March 13,1987 report prepared by Impell 4
t-Corporation concerning monitoring /d contaminating procedures in non-Shoreham radiological emergency plans. LILCO's counsel's justification for withholding it was:
It is " work product" in the classic sense, since it was prepared solely for litigation and at the request of the lawyers. Moreover, the information was dathered from public sources which I believe anyone could tap if he were to take the trouble to do it.
Letter of March 17,1987 from James N. Christman to Christopher M. McMurray.
Likewise, the draf t legal memorandum was prepared solely for litigation by a lawyer at the request of a lawyer, and the statutes and regulations are available from public sources. LILCO's justification for asserting attorney work product doctrine to protect the Impell Corp. report is just as applicable to the draf t legal memorandum.
LILCO is unable to show a " substantial need" for the draf t legal memorandum and is unable to show why it cannot analyze New York State's Environmental Conservation Law and associated regulations by asking its own attorneys to conduct the legal research.10 CFR 2.740(b)(2) does not allow LILCO to avoid the draf t legal memorandum's protected status as attorney work product.
IV. THE DRAFT LEGAL MEMORANDUM IS PROTECTED BY ATTORNEY CLIENT PRIVILEGE LILCO's argument that the draf t legal memorandum is nc: protected by attorney client privilege is devoid of legal citations. However, the courts have clearly held that agencies are " clients" and agency lawyers are " attorneys" for purposes of attorney client privilege. Coastal State's Gas Corp. v. Department of Energy 617 F.2d 854,863 (D.C.
Cir.1980); Securities and Exchange Commission v.
World-Wide Coin Investments, Ltd.,92
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F.R.D. 65 (N.D. Ga. 1981); Coastal Corp. v. Duncan, 86 F.R.D. 514, 520 (D. Del 1980).
Since the draf t legal memorandum was written by a state agency attorney to an agency head, such attorney client materialis absolutely protected from disclosure.
LILCO's point that disclosure should be permitted because Mr. Gerstman is a subordinate of Mr. Marsh's (LILCO's Motion at 6) is incorrect. The deliberative process of government depends on unchilled, uninhibited, free exchanges of ideas between subordinates and superiors. In this case, the particular ideas involve applications of legal
' theories to particular circumstances, which deserve even greater protection. The draf t legal memorandum is protected under the deliberative process / executive privilege doctrine alone. As a draf t legal memorandum, it deserves the additional protection of attorney client privilege and attorney work product doctrine.
LILCO's attempt to cite the Revised Uniform Rules of Eiidence (1974)in support of its argument is unavailing. First, there is no support for LILCO's suggestion that the Revised Uniform Rules of Evidence are applicable to NRC proceedings. LILCO offers no indication of what status the Revised Uniform Rules of Evidence have or which jurisdictions follow them. if any rules of evidence apply, outside of the NRC's own regulations, the NRC would most likely look to the Federal Rules of Evidence, in which LILCO has apparently been unable to find support for its positions. In any event, even if the Revised Uniform Rules of Evidence do apply, the draf t legal memorandum was prepared for and concerns litigation in which the New York S:me Department of Environmental Conservation was involved. Therefore, the cited provision from the Revised Uniform Rules of Evidence relied upon by LILCO supports the State of New York's position.
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Likewise, LILCO's additional argument that the attorney client privilege does not apply because Mr. Marsh was not asking for legal advice is unfounded speculation and i
plainly incorrect. Mr. Marsh and the undersigned counsel for the State of New York both asked for legal advice from Mr. Gerstman and expected that it would remain confidential.
t In any event, LILCO's basic argument -- that the State of New York's assertion of attorney client privilege should not be applied to frustrate LILCO's ability to explore the basis for Mr. Marsh's testimony --is now moot in light of the fact that Mr. Marsh will not be providing testimony in this proceeding.
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V. CONCLUSION For the foregoing reasons, LILCO's motion should be denied.
i Respectfully submitted,
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' Richard G,.Zahnle/
uter Deputy Special Counsel to the Governor of the State of New York Executive Chainber, Room 229 l
Capitol Building Albany, New York 12224 Attorney for Governor Mario M.
Cuomo and the State of New York l
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DOLMETED U$NRC DATE: April 17,1557 MW 20 P2 ' 2 4
0FFICE cF SEcpt;gny 00CHETING r SEPv!U UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board in the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of STATE OF NEW YORK RESPONSE IN OPPOSITION To "LILCO's MOTION TO COMPEL STATE OF NEW YORK TO PRODUCE DOCUMENT" have been served on the following this 17th day of April 1937 by U.S. mall, first class, except as noted by an asterisk.
Morton B. Margulies*
Dr. Jerry R. Kline*
Chairman Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers East-West Towers 4350 East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20314 Mr. Frederick 3. Shon*
Spence W. Perry, Esq.*
Atomic Safety and Licensing Board William R. Cumming, Esq.
U.S. Nuclear Regulatory Commission Of fice of General Counsel, East-West Towers Federal Emergency Management Agency 4350 East-West Highway 500 C Street, S.W., Room 840 Bethesda, MD 20814 Washington, D.C. 20472
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t Anthony F. Earley, Jr., Esq.
Joel Blau, Esq.
General Counsel Director, Utility Intervention Long Island Lighting Company N.Y. Consumer Protection Board 175 East Old Country Road Suite 1020 Hicksville, New York 11801 Albany, New York 12210 Ms. Elisabeth Taibbi James N. Christman*
Clerk Hunton & Williams Suffolk County Legislature 707 East Main Street Suffolk County Legislature Richmond, Virginia 23212 Office Building
' Veterans Memorial Highway Hauppauge, New York 11738 Stephen B. Latham, Esq.
Twomey, Latham & Shea Mr. L. F Britt 33 West Second Street Long Island Lighting Company Riverhead, New York 11901 Shoreham Nuclear Power Station North Country Road Docketing and Service Section Wading River, New York 11792 Office of the Secretary U.S. Nuclear Regulatory Commission Ms. Nora Bredes 1717 H. Street, N.W.
Executive Director Washington, D.C. 20555 Shoreham Opponents Coalition 195 East Main Street Hon. Michael A. Lo Grande Smithtown, New York 11787 Suffolk County Executive H. Lee Dennison Building Veterans Memorial Highway Mary M. Gundrum, Esq.
Hauppauge, New York 11788 New York State Department of Law 120 Broadway,3rd Floor Dr. Monroe Schneider Room 3-116 North Shore Committee New York, New York 10271 P.O. Box 231 Wading River, New York 11792 MHB Technical Associates 1723 Hamilton Avenue Lawrence Coe Lanpher, Esq.*
Suite K Kirkpatrick & Lockhart San Jose, California 95125 1900 M. Street, N.W.
Suite 800 Martin Bradley Ashare, Esq.
Washington, D.C. 20036 Suifolk County Attorney Building ISS North County Complex Richard Bachman*
Veterans Memorial Highway U.S. Nuclear Regulatory Commission Hauppauge, New York 11783 Washington, D.C. 20555 Mr. Jay Dunkleburger Douglas 3. Hynes New York State Energy Office Town Board of Oyster Bay Agency Building #2 Town Hall Empire State Plaza Oyster Bay, NY 11771 Albany, New York 12223
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t David A. Brownlee, Esq.
Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036 I
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I' Richard 3.fahn[euter, Esq.
Deputy Special' Counsel to the Governor
' Executive Charnber Capitol, Room 229 Albany, New York 12224
- By Telecopier.
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