ML20210E638
| ML20210E638 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/03/1987 |
| From: | Latham S, Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20210E573 | List: |
| References | |
| OL-5, NUDOCS 8702100335 | |
| Download: ML20210E638 (6) | |
Text
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A February 3, 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
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SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON REPLY TO "LILCO'S RESPONSE TO INTERVENORS' MOTION FOR ORDER COMPELLING RESPONSE TO' PORTIONS OF INTERVENORS' SECOND SET OF INTERROGATORIES" On January 30, 1987, LILCO filed a Response to Intervenors' Motion for Order Compelling Response to Portions of Intervenors' Second Set of Interrogatories (hereafter, " Response").1 In this Reply, the Governments briefly address the characterization of the discovery sought by the Governments' Motion which forms the premise for the LILCO Response.
We do not repeat herein the argument or discussion of case law which was set forth in the Governments' Motion.
1 The actual title of the Governments' Motion to which LILCO responded was "Suffolk County, State of New York and Town of Southampton Motion for Order Compelling LILCO to Respond to Portions of the Governments' Second Set of Interrogatories to LILCO" (January 20, 1987).
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LILCO's Response boils down to the following argument:
because LILCO has told the Governments that its expert witnesses
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intend to rely upon over 27 FEMA post-exercise reports as the
" source of facts" about other exercises upon which their expert testimony will be based, LILCO has discharged its obligation to respond to the Inserrogatory at issue.2 This position'is without basis and must be rejected.
First, LILCO's Response seriously mischaracterizes the Governments' Motion and distorts the issue presented to the Board.
By suggesting in its Response that what the Governments seek is analogous to selection and compilation by counsel of documents for use in litigation, LILCO ignores the discovery request which actually was posed by the Governments.
In Interrogatory No. 1 the Governments do not seek attorney thought processes or, in fact, decisions or work performed by attorneys at all.
The Governments merely seek to learn the facts upon which the expert witnesses who will testify on LILCO's behalf concerning Contentions Ex 15, 16, 21, and 50 will rely in their testimony.
Presumably, that testimony will assert that what happened at non-Shoreham exercises supports a finding that the allegations in Contentions Ex 15, 16, 21 and 50 are wrong.
As set forth in the Governments' Motion, the Governments are 2
As explained in the Governments' Motion, Interrogatory No.
1(f) and (g) requested, with respect to each non-Shoreham exercise upon which LILCO intends to rely in testimony, "all facts about, or data relating to, the exercise," and " documents, concerning the exercise," upon which LILCO intends to rely. -
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- 3 entitled to discover the facts which will form the basis for the opinions and conclusions to be expressed in the testimony of LILCO's expert witnesses.
In its Response LILCO suggests no basis to support its assertion that facts upon which expert witnesses intend to rely in testimony constitute attorney work product that can properly be shielded from discovery.
Thus, unless LILCO's counsel intends to file-testimony on Contentions Ex 15, 16, 21, and 50, the attorney work product doctrine simply has no application to the information sought by the Governments.3 Assuming the expert witnesses identified by LILCO know which facts regarding non-Shoreham exercises they intend to rely upon to support their opinions on those contentions, LILCO should identify such facts in response to Interrogatory No. 1.4 Second, for the same reason, the cases cited by LILCO in its I
Response are inapposite.
In each cited case, the discovery request at issue expressly sought decisions or determinations 3
As an illustration, LILCO's position would be stronger had the Governments sought discovery of the facts or documents upon which LILCO intended to rely in its presentation to the Board concerning Contention Ex 19.
That contention, upon which evidence will not be taken, will be presented to the Board by the l
parties' counsel; decisions concerning the documents and facts upon which counsel would rely in those presentations could very likely involve attorney work product.
That is not what is involved in the discovery request at issue here, however.
4 The same is true with respect to the documents LILCO's witnesses intend to rely upon in their testimony.
Thus, merely asserting, as LILCO has, that its witnesses intend to rely "on FEMA post-exercise reports," without identifying which reports, for which exercises, at which of the 27 plants "whose exercises LILCO has presently examined," is not an adequate or proper response to Interrogatory No. 1(g). 1 I
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made by counsel or counsel's view of the case.
None of them involved discovery seeking the facts upon which an expert witness intends to rely to support his opinion to be expressed in trial testimony.
For the foregoing reasons, the Governments' Motion should be granted.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 G
0 i
Karla Letsche [
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Michae{l S.
MilleV KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 Attorneys for Suffolk County L
dwu(g~
x Fab ~ian G.
Palomino l
Special Counsel t the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York M[.
Stebben p'.
Latham Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton l
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8 I
DCCHEif
.w February 3, 1987
~87 FEB -9 A10:25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION cria. g.
BOCRTihs inv r Before the Atomic Safety and Licensino BoardRAND'
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPON MOTION FOR LEAVE TO FILE REPLY TO "LILCO'S RESPONSE TO INTERVENORS' MOTION FOR ORDER COMPELLING RESPONSE TO PORTIONS OF INTERVENORS' SECOND SET OF INTERROGA-TORIES" and SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTRAMPTON REPLY TO "LILCO'S RESPONSE TO INTERVENORS' MOTION FOR ORDER COMPELLING RESPONSE TO PORTIONS OF INTERVENORS' SECOND SET OF INTERROGATORIES" have been served on the following this 3rd day of February, 1987 by U.S.
mail, first class, except as otherwise noted.
I l
John H.
Frye, III, Chairman
- Dr. Oscar H.
Paris
- Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission l
Washington, D.C.
20555 Washington, D.C.
20555 Mr. Frederick J. Shon*
William R.
Cumming, Esq.*
Atomic Safety and Licensing Board Spence W.
Perry, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel f
Washington, D.C.
20555 Federal Emergency Management Agency 500 C Street, S.W.,
Room 840 Washington, D.C.
20472 i
f
4
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Anthony F.
Earley, Jr., Esq.
Bernard M. Bordenick, Esq.*
General Counsel U.'S. Nuclear Regulatory Commission Long Island Lighting Company Washington, D.C.
20555 175 East Old Country Road Hicksville, New York 11801 Elisabeth Taibbi, Clerk W.
Taylor Reveley, III, Esq.*
Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O. Box 1535 Office Building 707 East Main Street Veterans Memorial Highway Richmond, Virginia 23212 Hauppauge, New York 11788 Mr. L.
F.
Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
20555 MHB Technical Associates Hon. Michael LoGrande 1723 Hamilton Avenue Suffolk County Executive Suite K H. Lee Dennison Building San Jose, California 95125 Veterans Memorial Highway Hauppauge, New York 11788 Martin Bradley Ashare, Esq.
Fabian G. Palomino, Esq.
Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 David A.
Brownlee, Esq.
Mr. Philip McIntire Kirkpatrick & Lockhart Federal Emergency Management 1500 Oliver Building Agency Pittsburgh, Pennsylvania 15222 26 Federal Plaza New York, New York 10278
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l 4tA UW4L By Telecopy Katla y. Letsche/ -
KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 i
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