ML20212L133
| ML20212L133 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/20/1987 |
| From: | Latham S, Mcmurray C, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2305 OL-5, NUDOCS 8701290329 | |
| Download: ML20212L133 (11) | |
Text
i 2305 6
00CKETED U3NRC January 20, 1987
'87 JM 27 P2 :53 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.p Before the Atomic Safety and Licensina Boar
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
Shoreham Nuclear Power Station,
)
Unit 1)
)
)
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 Pursuant to 10 CFR S 2.740(f), Suffolk County, the State of New York, and the Town of Southampton (the " Governments") request this Board to issue an Order compelling LILCO to respond to por-tions of the Governments' Second Set of Interrogatories to LILCO, dated December 19, 1986 (the " Interrogatories"), as set forth below.
INTRODUCTION This Motion to Compel arises from LILCO's refusal to answer portions of Interrogatory No. 1 of the Governments' December 19 Interrogatories, which requests, among other things, the identi-
F 4
fication of certain facts and documents LILCO intends to rely upon at the upcoming exercise hearing.
Specifically, Interroga-tory No. 1 reads, in pertinent part:
1.
Identify each non-shoreham exercise upon which LILCO intends to rely in support of its position on admitted Exercise contentions, and with respect to each such exercise identify the following:
(f).
All facts about, or data relating to, the exercise upon which LILCO intends to Lilli (g).
Documents, concerning the exercise, ungn which LILCO intends to relv. (Emphasis added)
Interrogatory No. l was prompted by LILCO's stated intention to rely heavily on certain data from exercises at nuclear power plants other than shoreham in support of its position on certain contentions.
Ett LILCO's Motion to Compel New York State to Respond to LILCO's First Set of Interrogatories and Requests for Production of Documents, and Request for Expedited Response and Disposition (Nov. 24, 1986) at 2-5 ("LILCO Motion to Compel").1/
Indeed, in its Response to the Interrogatories, LILCO states:
1/
Prior to the.date of the Governments' Interrogatories, LILCO had already propounded a number of interrogatories and document requests to the State of New York inquiring about facts related to other exercises.
First Set of Interrogatories and Requests for Production of Documents to New York State (Nov. 3, 1986).
The Board rejected the State's objection to LILCO's interroga-tories, ruling that they were valid inquiries.
Memorandum and Order (Ruling on LILCO's Motion to Compel New York State to Answer LILCO's First Set of Interrogatories and for a Protective Order) (Dec. 19, 1986).
Oi At present, LILCO intends to relv on iltforma-tion from other exercises in its te,stimony on Contentions Ex 15,16, 21 and 50.F (Emphasis added)
In light of LILCO's stated intention to rely on ir. formation from other exercises -- evidently comparing that data to the Shoreham exercise data 3/ -- it is thoroughly appropriate for the Governments to inquire into the specific facts and documents from other exercises upon which LILCO intends to rely.
Indeed, dis-covering the facts and documents on which an adverse party in-tends to rely is the basic purpose of discovery.
Nevertheless, LILCO objected to the Governments' interroga tories and refused to provide answers on the ground that the in-formation sought by the Governments, if disclosed, would reveal the thought processes of LILCO's attorneys.
Thus, with respect to subpart (f) of Interrogatory No. 1, regarding the facts LILCO intends to rely upon, LILCO's Response states 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 reveal attorney thought 2/
LILCO's Response to Suffolk County, State of New York and Town of Southampton Second Set of Interrogatories to LILCO (Jan.
5, 1987)
(" Response"), at 3 (Response to Interrogatory No. 1(e)).
3/
Egg LILCO Motion to Compel, at 3.
r e
D processes.
Accordingly, LILCO's choice of facts it will use is protected by the attorney work product doctrine.
Response at 3.
Likewise, with respect to subpart (g) regarding the specific documents it intends to rely upon, LILCO answers:
As just noted, the selection or rejection of documents reveals attorney thought processes and is protected by the work product doctrine.
. Without waiving these objections, LILCO states that at the present time it intends to rely on FEMA post-exercise reports as the source of information about other exercises.
Id.
In short, LILCO evidently takes the position that during discovery it may refuse to disclose facts and documents which it has already determined that it intends to rely upon in its testimony in support of its case, merely by asserting that its counsel were involved in the decision to reply upon such facts and documents.
This bizarre invocation of the work product doctrine is absurd on its face and must be rejected.
The days of trial by ambush are long gone; indeed, the modern rules of discovery are designed to avoid precisely the type of game playing that LILCO is attempting in its Response.
Clearly, there are matters, such as the substance of memoranda or conversations by counsel, which may be legitimately entitled to protection under the work product doctrine.
To suggest, however, that the identification of facts and documents which witnesses intend to discuss in testimony can be kept secret under the rubric of that doctrine, has no basis in
law or logic.
LILCO's position must therefore be rejected and this Board should issue an Order immediately compelling LILCO to respond to subparts (f) and (g) of the Governments' Interrogatories without further delay.
DISCUSSION A.
LILCO's Work Product Claim Is Without Basis There is absolutely no legal basis for LILCO's assertion of the work product doctrine to justify the refusal to respond to an interrogatory requesting facts and documents upon which LILCO's witnesses intend to rely in testimony at the upcoming hearing.
Under NRC regulations, Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceed-ings, whether it relates to the claim or'de-fense of the party seeking discovery or to the claim or defense of any other party.
10 CFR S 2.740(b)(1).
It is beyond dispute that in NRC pro-ceedings, as in federal court proceedings, pretrial discovery, by interrogatories or otherwise, is liberally granted to enable parties to ascertain the facts, to refine the issues, and to prepare adequately for a more expeditious hearing or trial.
- Egg, 32gt, Public Service Co. or New Hamoshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 494 (1983); Ingag Utilities Generatina Co. (Comar.che Peak Steam Electric Station, Units 1 and 2), LBP-81-25, 14 NRC 241, 243 (1981); Pennsylvania e
Power and Liaht Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 322 (1980); Pacific Gas and i
Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038, 1040 (1978); Illinois Power Co. (Clinton Power Station, Unit 1), LBP 81-61, 14 NRC 1735, 1742 (1981).4/
LILCO claims that the factual information and documents upon which it intends to rely are protected by the work product doc-trine because disclosure of this information, and "by implica-J tion" disclosure of "the facts from other exercises it does not intend to use, would reveal attorney thought processes."
Response at 3.
The consequences of this argument, if upheld by this Board, would be staggering to future litigation; discovery would come to a grinding halt.
l The Governments are not seeking to obtain legitimate work I
product.
Rather, they are seeking only to obtain the facts with which they will be confronted at the hearing.
Based upon LILCO's response, it appears that LILCO knows what facts and documents concerning other exercises-its witnesses intend to rely upon in their testimony concerning Contentions Ex 15, 16, 21 and 50.
I 1/
As the Supreme Court has explained:
The deposition-discovery procedure simply advances the stage at which the disclosure (of 3
facts) can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise.
Hickman v. Tavlor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed.
951.
- Accord, U.S.
- v. Proctor and Gamble Co.,
356 U.S. 677, 682-83, 78 S.Ct. 983, 986-87 (discovery makes " trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.")
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t That knowledge, and an identification of the facts themselves, cannot be hidden simply because at some point in time they have passed through an attorney's mind.
Indeed, as the Brenner Board observed in another portion of this proceeding, the work product doctrine cannot be used to hide discoverable facts.
LBP-82-82, 16 NRC 1144, 1158 (1982), citina Unichn Co. v. U.S., 449 U.S.
383, 395 (1981).
Attorneys are constantly engaged in thought processes relating to which facts or which documents would help to prove their claim and which ones would not be helpful.
- But, that reality of trial practice cannot be used to shield such I
facts or documents from discovery or to justify a refusal to reveal them to the other side in response to a legitimate discovery request.
LILCO's response provides no rationale or basis for its blanket assertion of the work product doctrine to conceal facts which will be relied upon in testimony.5/
The Governments submit that there is no such rationale or basis, and that the Governments' motion should, therefore, be granted.
l i
i 1
5/
Furthermore, since the work product doctrine represents only a qualified privilege, which can be overcome based upon a j
balancing test, the Governments submit that their need to know j
what facts and documents, from a huge number of (what the i
Governments believe are all irrelevant) exercises, will be used against them at trial, would far outweigh any qualified work product interest, even assuming crauendo that the doctrine
' properly applies here. ;
r O
B.
LILCO's Claim That the Governments' Requests are Overly Broad. Undulv Burdensome, and Vaaue are Unfounded LILCO also objects to the interrogatories at issue on grounds that they are overly broad, unduly burdensome, and vague.
Response at 3.
A proper reading of the interrogatories reveals that this boiler-plate objection has no merit.
Interrogatories which request the specific facts to be relied upon by a party at trial on a specific issue -- comparison of other exercises to the Shoreham Exercise -- can hardly be considered overly broad or burdensome.
Moreover, based on its response, it appears that LILCO has the information requested readily at hand.
LILCO's vagueness argument is similarly unfounded and LILCO provides no reasons to support it.
In the face of LILCO's state-ments that it intends to rely on certain data from other exer-cises and make comparisons between that data and Shoreham exer-cise data, the Governments have simply and clearly requested what that information is.
LILCO is well aware of the information which the Governments seek; LILCO is simply unwilling to reveal it.
CONCLUSION For the foregoing reasons, this Board should compel LILCO to answer the subparts (f) and (g) of Interrogatory No. 1 in the Governments' Second Set of Interrogatories without further delay.
_g-
r o
s Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 k-,
Listrence Coe Lanpher
/
Karla J. Letsche Christopher M. McMurray KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County YY
/m Fabian G. Palomino
/
Special Counsel to 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 b
6 Ste'pNen B( Latham
/m Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton January 20, 1986 f
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T b
DJ; M it :
3 q ;m January 20, 1987
'87 JM 27 P2 :53 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION af:._
- " nt !
ROCM Before the Atomic Safety and Licensina Board U M* "
)
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 horeby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTHAMPTION MOTION FOR ORDER COMPELLING LILCO TO RESPOND TO SECOND SET OF INTERROGATORIES have been served an the following this 20th day of January, 1987 by U.S. mail, first class, except as otherwise noted.
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 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 Washington, D.C.
20555 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C.
20472
T 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 Mr. William Rogers W. Taylor Reveley, III, Esq.
- Clerk Hunton & Williams Suffolk County Legislature P.O. Box 1535 Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shorehom Nuclear Power Station 31 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. Peter Cohalan 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 h
h t-rist6pher M. McMurray jr KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891
- BY TELECOPY