ML20209H408
| ML20209H408 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/30/1987 |
| From: | Matchett S HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2406 OL-5, NUDOCS 8702060045 | |
| Download: ML20209H408 (13) | |
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"" 2 y'6 6 LILCO, Januiry 30,1987 00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~87 FEB -3 A10:51 Before the Atomic Safety and Licensing Board ;rr
.:0 In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S RESPONSE TO INTERVENORS' MOTION FOR ORDER COMPELLING RESPONSE TO PORTIONS OF INTERVENORS' SECOND SET OF INTERROGATORIES On January 20,1987, Intervenors filed a motion requesting that this Board com-pel LILCO to respond to portions of Intervenors' Second Set of Interrogatories.M "Suffolk County, State of New York and Town of Southampton Motion for Order Com-pelling LILCO to Respond to Portions of the Governments' Second Set of Interrogatories to LILCO," January 20,1987 (hereinaf ter "Intervenors' Motion"). As will be discussed below, Intervenors' motion misrepresents the discovery responses that LILCO has pro-vided to date, contains little or no legal support for the motion's request to compel, and
! offers no showing of need for the Board to override LILCO's legitimate claim of the at-torney work product doctrine. Accordingly, Intervenors' Motion to Compel should be l
denied.
Background
Intervenors' Motion to Compel is premised on carefully selected extracts from i LILCO's response to Intervenor's Second Set of Interrogatories that inaccurately depict 1/ Intervenors have labeled two different sets of interrogatories as their "Second Set of Interrogatories" to LILCO. The first was filed on November 5,1986; the second on December 19, 1986. In this response, LILCO will use the phrase "Second Set of In-terrogatories" to refer to Intervenors' December 19 interrogatories, jn"!!8Mo*Bagg,, 39*
r k LILCO's discovery responses. The Motion ignores a significant amount of information that LILCO has provided to Intervenors - both in its response to Intervenors' Second Set of Interrogatories and in depositions of LILCO witnesses - and instead mischaracterizes LILCO's response as a "refus[all to disclose facts and documents which it has already determined that it intends to rely upon in its testimony." Interve-nors' Motion at 4.
The interrogatory at issue posed a series of requests about each non-Shoreham exercise upon which LILCO may rely in support of its position on various admitted con-tontions. In particular, Intervenors asked LILCO to identify (1) the date of each exer-cme. ?lpon which LILCO intends to rely, (2) the facility involved in the exercise, (3) the losM9 of that facility, (4) the participants in the exercise, (5) the contentions for which LILCO intends to rely on the exercise to support its position, (6) all facts or data about the exercise on which LILCO intends to rely, (7) all documents concerning the exercise on which LILCO intends to rely, and (8) any other documents concerning the exercise known to LILCO whether or not LILCO intends to rely on them. In its re-sponse, LILCO specifically identified 27 f acilities for which it was examining exercises.
LILCO also provided Intervenors with the locations of those facilities, identification of the exercises that were being examined for each facility, and the contentions on which LILCO intended to use information from non-Shoreham exercises. Finally, LILCO in-formed Intervenors that it intended to rely on FEMA post-exercise reports as the source of information about other exercises.E Intervenors also inquired about LILCO's examination of the results of other exer-cises at the depositions of LILCO witnesses. For example, during the deposition of Dennis Behr, Intervenors asked Mr. Behr to identify the specific exercises being 4
2/ For the Board's convenience, the exact text of Intervennrs' interrogatory and LILCO's response is attached to this pleading as Attachment 1.
1
]
o
( examined by LILCO. Mr. Behr provided Intervenors with a lengthy list of both facilities and exercise dates. See Deposition of Dennis Behr, January 13,1987, at 12-16, 29-45.E Mr. Behr also described some of the general factual matters that LILCO was reviewing in connection with other exercise reports. Behr Dep. at 17-18.
In short, LILCO has been forthcoming in responding to Intervenors' discovery re-quests. The only area in which LILCO has refused to respond to Intervenors' requests is with regard to the specific facts from other exercises on which LILCO intends to rely.
As to that area, LILCO properly invoked the attorney work product doctrine and re-fused to respond, since LILCO believes that the production of this information would reveal the mental impressions and opinions of its a'ttorneys. 1 Discussion A. LILCO Properly Invoked the Work Product Doctrine In support of their motion to compel, Intervenors recite only the most general principles of discovery law, namely, that discovery is liberally granted to enable parties to refine the issues and ascertain relevant facts. Intervenors' Motion at 5-6.M In so doing, Intervenors ignore the substantial body of case N that recognizes that liberal 3/ Contrary to Intervenors' suggestions, see Intervenors' Motion at 6, 8, LILCO has not even completed its review of other exercises. Thus, Intervenors seek information that is still in preliminary form.
4/ Intervenors also cite an earlier Brenner Board decision for the proposition that "the work product doctrine cannot be used to hide discoverable facts." Intervenors' Mo-tion at 7, citing LBP-82-82,16 NRC 1144,1158 (1982). However, a quick review of the cited passage reveals that the Brenner Board was talking about the attorney-client privilege, not the work product doctrine. Viewed in that light, the Brenner Board was absolutely correct since it is settled law that the attorney-client privilege protects attorney-client communications and not the facts of the underlying dispute. See, e&,
Uplohn v. U.S., 449 U.S. 383 (1981) and 8 J. Wigmore, Evidence S 2292 at 554 (McNaughton 1961). The work product doctrine, on the other hand, "is distinct from and broader than the attorney-client privilege." Id. at 1159. The work product doctrine protects the adversary system by forcing counsel to independently sif t the important from the unimportant facts and formulate their respective strategies without the aid or interference of opposing counsel, I
e discovery is permitted only in areas that are not protected by a properly asserted privi-i lege. Instead, they attempt to nullify LILCO's legitimate claim of the attorney work product doctrine with sweeping and unsubstantiated claims that LILCO's invocation of the work product doctrine is " bizarre," Intervenors' Motion at 4, and that if the Board l
were to uphold LILCO's claim of privilege, "the consequences . . . would be staggering to future litigation" and " discovery would come to a grinding halt." I_d. at 6.N Hyperbole aside, existing case law does not support Intervenors' claims. The work product doctrine, first enunciated by the Supreme Court in Hickman v. Taylor, 326 U.S. 495 (1947), carved out a zone of privacy for attorney work product, because otherwise:
Much of what is now put down in writing would remain un-written. 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 of cases 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.
M., 329 U.S. at 511. Now firmly established, the work product doctrine " shelters the mental processes of the attorney, providing a privileged area within which he can ana-lyze and prepare his client's case." U.S. v. Nobles, 422 U.S. 225,238-39 (1975).
The work product doctrine of Hickman has been partially codified in Federal Rule of Civil Procedure 26(b)(3). That rule, and its NRC counterpart (10 C.F.R.
5/ In LILCO's view, it is Intervenors who have applied the work product doctrine (and the attorney-client privilege) in a " bizarre" fashion. For example, Intervenom have invoked both privileges in preventing disclosure of the substance of talks betwGct Intervenors' counsel and persons not yet represented by counsel (i& non-clients). See, e&, Deposition of Frank Petrone, December 15,1986, at 174-178. Moreover, it is evi- l dent from the depositions of most of Intervenors' witnesses that those witnesses possess i no knowledge relevant to the admitted cententions other than that which has been be-stowed upon them by counsel; yet LILCO has been prevented from tapping that knowl-edge by counsel's continualinvocation of the attorney-client privilege and work product doctrine. Thus, Intervenors have used the two privileges to " grind to a halt" LILCO's discovery efforts.
i
i I S 2.740(b)(2)), require the court or presiding officer to " protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other rep-resentative of a party" concerning the proceeding. Accordingly, most courts have in-terpreted FRCP 26 (b)(3) as distinguishing between " ordinary" and " opinion" work prod-uct, and have accorded " opinion" work product almost absolute protection from discovery on the ground that any factual content of such material is generally out-weighed by the adversary system's interest in maintaining the privacy of an attorney's thought processes and in ensuring that each side relies on its own wit in preparing its case. Sporck v. Peil, 759 F. 2d 312 (3d. Cir.), cert. denied, _ U.S. __,106 S. Ct. 232 (1985), citing Uplohn Co. v. U.S., 449 U.S. 383, 401 (1981).
In Sporck, the plaintiff sought production of a group of documents that had been selected by the defendant's counsel from a larger group of previously produced docu-ments in order to prepare the defendant for his deposition. The Third Circuit refused to order production, finding that the select group of documents constituted protected opinion work product, even though the individual documents were not work product, be-cause the selection process itself represented defense counsel's mental impressions and legal opinions as to how the documents related to issues and defenses being litigated.
Sparck v. Pell, 759 F.2d at 315.
Likewise, in Shelton v. American Motors Corp.,805 F.2d 1323 (8th Cir.1986), the court held that the work product doctrine shielded from discovery counsel's selection and compilation of documents for later litigation. There, the court declined to order the defendant's counsel to answer plaintiff's questions about the existence or non-existence of certain documents because i (counsel's] acknowledgment of the existence of documents referred to by plaintiff's counsel would reflect her judgment as an attorney in identifying, examining, and selecting from AMC's voluminous files those documents on which she will rely in preparing her client's defense in this case.
i
-% .g.
E at 1328. The court noted that In cases that involve reams of documents and extensive docu-ment discovery, the selection and compilation of documents is of ten more crucial than legal research.
Id., at 1329, citing James Julian. Inc. v. Raythecn Coa , 93 F.R.D.138,144 (D. Del.
1982).6/
The issue presented by Intervenors' motion is similar to the issues that con-fronted the courts in Sporck and Shelton. To prepare for litigation on Contentions EX 15,16,21, and 50, LILCO has reviewed the FEMA post-exercise reports of numerous exercises that have been conducted in the United States. LILCO has provided Interve-nors with a list of f acilities whose exercises it has examined as well as an identification of the specific exercises. LILCO has also identified the FEMA Reports as the docu-ments upon which it intends to rely. Now Intervenors want LILCO to point out the spe-cific facts from within those reports that it considers relevant and important to its po-sition.
Intervenors assert that they do not seek to obtain " legitimate work product," but instead seek "only to obtain the facts with which they will be confronted at the hear-ing." Intervenors' Motion at 6. But despite such " innocent" intentions, Intervenors i
clearly seek protected information. LILCO has already told Intervenors that it intends to rely on FEMA Reports as the source of its information on other exercises. What In-tervenors now seek - identification of the specific elements of those reports upon which LILCO will rely - is nothing but a description of LILCO's strategy and legal the-ory about how the identified body of facts supports its case.II 6/ See also Omaha Public Power Dist. v. Foster Wheeler Corp.,109 F.R.D. 615 (D.
Neb.1986)(counsel's selection and segregation of particular documents out of larger, previously produced group is protected work product); Eoppolo v. National R.R. -
Passenger Corp.,108 F.R.D. 292 (E.D. Pa.1985)(defendant not required to answer inter-rogatory to the extent it seeks counsel's view of the case or identification of those facts which counsel considers significant).
1/ That the requested information is work product is all the more clear from the fact that LILCO believes those other exercises are relevant while Intervenors do not.
(footnote continued)
u
\ LILCO believes it has fully satisfied its discovery responsibilities. Intervenors are just as capable as LILCO of reviewing the identified FEMA reports and culling out relevant information. If granted, Intervenors' attempts to have this Board order LILCO to reveal the results of its work would invade LILCO's ability to prepare effectively for litigation and reward Intervenors with the fruits of LILCO's labors. Accordingly, Inter-venors' motion should be denied.
In any case, both the Federal Rule and NRC regulation provide that 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." But In-tervenors have made no significant attempt to provide such a showing. Instead, Inter-venors sole " showing of need" is contained in footnote 5 of their motion where they state that "the Governments submit that their need to know what facts and documents, from a huge number of (what the Governments believe are all irrelevant) exercises, will be used against them at trial, would far outweigh any qualified work product interest."
Intervenors' Motion at 7 n.5. In this statement, Intervenors in effect concede that they do not have a " substantial need" for the requested material since by their own admis-sion they believe that all such information is irrelevant. Moreover, Intervenors fall to explain why they would face undue hardship to go to the NRC's Public Document Room to review the FEMA reports for themselves.N Thus, Intervenors have failed to present the Board with a reason to override LILCO's legitimate claim of the work product doctrine.
(footnote continued)
Intervenors' Motion at 7 n.5. Obviously there is a dificrence of legal opinion among the parties' counsel; Intervenors' interrogatory seeks to explore LILCO's legal opinions.
8/ Indeed, the State of New York already has all the FEMA post-exercise reports for exercises conducted in New York, and should be intimately familiar with those ex-ercises since New York State personnel were involved in their formulation and conduct.
o s B. Intervenors' Requests Are Overly Broad, Unduly Burdensome, and Vague Intervenors assert that " interrogatories which request the specific facts to be relied upon by a party at trial on a specific issue . . . can hardly be considered overly broad or burdensome." Intervenors' Motion at 8. That may be so; but tne interrogato-ries at issue here do not meet that description. Subpart (f) asked LILCO to identify "all facts about, or data relating to, the exercise upon which LILCO intends to rely." That request neither specifies a particular issue nor asks for specific facts. Instead, it seems to request the universe of facts, data, evaluations, qualities, and characterizations about such exercises that LILCO believes may support its position. Such a general re-quest is vague, overly broad, and unduly burdensome. Similarly, subpart (g), which asks LILCO to identify all documents (concerning all of the exercises at the 27 facilities named by LILCO) upon which LILCO may rely, is also overly broad and unduly burden-some. Nevertheless, LILCO has already told Intervenors that it intends to rely on the FEMA Reports as its source of information on the identified exercises. Accordingly, In-tervenors' Motion to Compel should be denied.
Conclusion For the reasons set forth in this response, LILCO respectfully requests that the Board deny Intervenors' Motion to Compel.
Respectfully submitted, YM b.Nunol -
LeTB. Zeugin "
Jessine A. Monaghan Scott D. Matchett Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: January 30,1987
4 LILCO, January 5,1987
(. Attachment 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S RESPONSE TO SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTHAMPTON SECOND SET OF INTERROGATORIES TO LILCO Pursuant to SS 2.740,2.740b, and 2.741 of the NRC Rules of Practice, LILCO re-sponds to Suffolk County's Second Set of Interrogatories dated and served upon LILCO on December 19,1986.1 Suffolk County Interrogatory No.1 Identify each non-Shoreham exercise upon which LILCO intends to rely in sup-port of its position on admitted Exercise contentions, and with respect to each such ex-ercise identify the following:
- a. Date of the exercise;
- b. Plant (s) or facility (les) to which the exercise related;
- c. Location (s) of facilities identified in response to (b);
- d. Participants in the exercise;
- e. Contentions as to which LILCO intends to rely upon the exercise to support its position;
- 1. All facts about, or data relating to, the exercise upon which LILCO intends to rely; 1/ On November 5,1986 Suffolk County, the State of New York and the Town of Southampton filed a pleading entitled "First Request for Admissions and Second Set of Interrogatories Directed to LILCO." In this response, LILCO will distinguish between the two sets of interrogatories by the dates on which they were filed.
l'
- g. Documents, concerning the exercise, upon which LILCO intends to rely;
- h. Any other documents concerning the exercise known to LILCO, whether LILCO intends to rely upon them or not.
Response
In general, LILCO objects to this interrogatory as seeking information protected by the work product doctrine. In addition, other subparts of the interrogatory are undu-ly burdensome since they seek information that is readily available in the public domain and is, accordingly, as available to Intervenors as it is to LILCO. Without waiving these objections, LILCO responds as follows.
(a). For each facility listed in response to subsections (b) and (c) below, LILCO has examined the exercise which served as the initial " full participation" exercise re-quired under 10 CFR Part 50, App. E to continue full power operation or, in the case of new plants, to allow operation above 5% power. In addition, for plants located in FEMA Region 2, LILCO has examined all " full participation" exercises.
(b) and (c). The facilities whose exercises LILCO has presently examined, and the states in which they are located, are as follows:
Beaver Valley (Pennsylvania)
Calvert Cliffs (Maryland)
Fitzpatrick (New York)
Ginna (New York)
Haddam Neck (Connecticut, Indian Point #2 (New York)
Indian Point #3 (New York)
Limerick (Pennsylvania)
Millstone (Connecticut)
Nine Mlle Point (New York)
Oyster Creek (New Jersey)
Pilgrim (Massachusetts)
Seabrook (New Hampshire)
Shearon Harris (North Carolina)
Braidwood (Illinois)
Zion (Illinois) I Byron (Illinois)
Calloway (Missouri)
Fermi #2 (Michigan)
Perry (Ohio)
3 I .
Quad Cities (Illinois)
Wolf Creek (Kansas)
Diablo Canyon (California)
Hope Creek (New Jersey)
Peach Bottom (Pennsylvania)
LILCO may examine additional exercises from other facilities in preparing its testimo-ny.
(d). Participants in any given exercise are plainly identified in the FEMA post-exercise reports which are publicly available in the NRC Public Document Room. This information is as readily available to Intervenors as it is to LILCO.
(e). At present, LILCO intends to rely on information from other exercises in its testimony on Contentions EX 15,16,21 and 50.
(f). LILCO objects to this subpart as overly broad, unduly burdensome and vague. In addition, disclosure of the facts and data on which LILCO intends to rely and by implication, the facts from other exercises which it does not intend to use, would re-veal attorney thought processes. Accordingly, LILCO's choice of facts it will use is protected by the attorney work product doctrine.
(g) and (h). As just noted, the selection or rejection of documents reveals attor-ney thought processes and is protected by the work product doctrine. In addition, LILCO objects to subpart (h) as overly broad and unduly burdensome. Without waiving these objections, LILCO states that at the present time it intends to rely on FEMA i
~
post-exercise reports as the source of information about other exercises.
Suffolk County Interrogatory No. 2 Identify the times at which each of the following LERO News Releases were made available to the press during the February 13 Exercise and for each state how it was made available and by whom:
- a. LERO News Release #1;
- b. LERO News Release #2;
! c. LERO News Release #3;
- d. LERO News Release #4, -
- e. LERO News Release #5;
- f. LERO News Release #6; s
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i LILCO, January 30,1987
(
DgIU CERTIFICATE OF SERVICE '87 FEB -3 N0:51 In the Matter of @-1 E . - '
LONG ISLAND LIGHTING COMPANY DO N g g - ec ;J.
(Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-5 I hereby certify that copies of LILCO's Response to Intervenors' Motion for Order Compelling Response to Portions of Intervenors' Second Set of Interrogatories were served this date upon the following by telecopier as indicated by an asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.
John H. Frye, III, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers 4350 East-West Hwy. Bernard M. Bordenick, Esq.
- Bethesda, MD 20814 Oreste Russ Pirfo, Esq.
Edwin J. Reis, Esq.
Dr. Oscar H. Paris
- U.S. Nuclear Regulatory Commission -
Atomic Safety and Licensing 7735 Old Georgetown Road Board (to mailroom)
U.S. Nuclear Regulatory Commission Bethesda, MD 20814 East-West Towers 4350 East-West Hwy. Herbert H. Brown, Esq.
- Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.
Karla J. Letsche, Esq.
Mr. Frederick J. Shon
- Kirkpatrick & Lockhart Atomic Safety and Licensing South Lobby - 9th Floor Board 1800 M Street, N.W.
U.S. Nuclear Regulatory Commission Washington, D.C. 20036-5891 East-West Towers, Rm. 430 4350 East-West Hwy. Fabian G. Palomino, Esq.
- Bethesda, MD 20814 Richard J. Zahnleitter, Esq.
Special Counsel to the Governor Secretary of the Commission Executive Chamber Attention Docketing and Service Room 229 Section State Capitol U.S. Nuclear Regulatory Commission Albany, New York 12224 1717 H Street, N.W.
Washington, D.C. 20555 Mary Gundrum, Esq.
Assistant Attorney General Atomic Safety and Licensing 120 Broadway .
Appeal Board Panel Third Floor, Room 3-116 U.S. Nuclear Regulatory Commission New York, New York 10271 Washington, D.C. 20555
1 l l
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 Gerald C. Crotty, 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 Martin Bradley Ashare, Esq.
Stephen B. Latham, Esq. ** Eugene R. Kelly, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel ,
Three Rockefeller Plaza Albany, New York 12223 S'cott D. MatcKett ' L Hunton & Williams 707 East Main Street l P.O. Box 1535 Richmond, Virginia 23212 DATED: January 30,1987
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