ML20213E773
| ML20213E773 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/04/1986 |
| From: | Eggeling W ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1444 OL, NUDOCS 8611130284 | |
| Download: ML20213E773 (8) | |
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Fil4di Nev0CDer 4,
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UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION before the
~86 NOV 10 P4 :06 ATOMIC SAFETY AND LICENSING BOARD 0FFICF M E CCCntic. A ai
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In the Matter of
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I Docket Nos. 50-445-OL TEXAS UTILITIES ELECTRIC
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50-446-OL COMPANY, et al.
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(Application for an (Comanche Peak Steam Electric
)
Operating License)
Station, Units 1 and 2)
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APPLICANTS' RESPONSE TO CASE (10/20/86) MOTION TO COMPEL (TEX-LA DOCUMENTS)
CASE has moved to compel the production of certain documents possessed by one of the Minority Owners of CPSES, Tex-La Electric Cooperative of Texas, Inc.
(" Tex-La")
The Response of Tex-la has been prepared by attorneys who have entered a special appearance for the soie purpose of advancing the Tex-La position with respect to this Motion.
Applicants 1 are neutral on the question of whether the documents sought of Tex-La by CASE should be produced in the course of this OL proceeding.
The arguments against such discovery are based upon asserted rights peculiar and personal to Tex-la, and it is appropriate that their advocacy devolves upon Tex-La's special counsel.
As explained in previous filings, " Applicants" incorporates the fact that as Project Manager TUGCO is authorized to speak to all concerns before this Board in the Operating License proceeding except those where --
as in the case of the Tex-La position herewith -- it has been concluded that it is appropriate for a separate position of one of the Minority Owners to be identified and set forth.
8611130284 861104 PDR ADOCK 05000445 Q
PDR M3
CASE's moving papers and the Tex-La Response contain
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suggestions with respect to the relevance of an alleged conflic*.
between the positions of t he Joint Owners of the Project, and some of their counsel.
We have concluded these matters deserve brief comment.
I.
We note first that no problem exists unless and until the Board decides preliminarily that the Tex-La documents are sufficiently relevant and material to warrant compelling their production over the Tex-La objection.
In the event the Board is prepared to reject Tex-La's first and second arguments, it must necessarily have concludcd that the documents must be made available to all the Applicants.
First, a Board conclusion that the Tex-La documents are not protected by the work-product privilege must be tantamount to a ruling that the asserted privilege does not protect the documents against disclosure to anyone in this litigation.
To the extent that the work-product privilege may protect items of evidence, it should apply equally to all who wish access to that evidence.
Cf. FTC v.
- Grolier, Inc., 462 U.S.
19, 25-26 (1983)(reviewing cases).
Second, if the Board were to conclude that the documents are protected by the privilege, but was nevertheless prepared to order them disclosed to CASE because they are " crucial" to the issues in this litigation, the Board will have also effectively held that they are equally crucial to those against whom CASE intends to use the i
documents.
An evidentiary sword is surely as important to those who must defend against it as to those who use it.
- ickman v.
Taylor, 329 U.S.
495, 507 (1947)
(" Mutual knowledge of all the
)
relevant facts gathered by both parties is essential to proper litigation.")
At that point, therefore, it must follow ineluctably that the documents must be made availabie to all the participants in the Operating License case.
The simple fact is that -- contrary to the assumptions in the Motion and the Response -- there is simply no provision in the Rules of Practice which would permit information such as CASE claims exists in the Tex-La documents to be kept from any legitimate party to this proceeding.
The working assumption of the Rules is instead that all parties have the right to review information which is relevant and material to the issues comprised within the Admitted Contentions.
- ickman v.
Tayl or, 1
- 4 329 U.S.
495, 507 (1947)(" Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.
To that end, either party may compel the other to disgorge whatever facts he has in his possession.")
To the extent any limitations on disclosure or dissemination are contemplated, they I
are restricted to the protection of proprietary information such as trade secret confidential comercial or financial information.
See 10 CFR sec. 2.790(4).
These categories of information are not even claimed to be implicated by CASE's motion.
- Instead, what CASE claims is at issue are documents supposedly containing information regarding reports, evaluations and assessments of the CPSES design and construction.
- See, e.g.,
CASE Motion at 8-10.
It is inconceivable that such information, if ordered disclosed to Intervenor, can be withheld from TUEC, the other Minority Ouner Applicants, or the Staff. i
4 II.
It also follows from the foregoing that CASE's attempted arguments about the roles of some of the Lead Owner's counsel are misplaced.
The identity of Applicants' counsel has nothing to do with the issues at hand.
As discussed above, if the information is ordered to be produced, it is the other parties who have the absolute right -- indeed presumably the responsibility -- to review it for its impact upon the case.
It matters not who the parties' counsel are, or what other responsibilities they may have.
Indeed, if all the counsel currently representing the Applicants were replaced tomorrow, there would be effected no change in the situation with respect to the Tex-La documents.
I f, t
the documents are to be produced for the Intervenor challengins the licensing application, they must surely be equally available to the Applicants advancing that application.
CASE's attempt to inject a red herring into this discovery motion presents nothing within the proper cognizance of this Board.
III.
We must comment as well upon a suggestion, advanced by Tex-La, to the effect that the Board might ameliorcto Tex-La's concerns by restricting disclosure of the documents to certain of the Applicants' counsel but not to others -- and barring their disclosure to the parties themselves.
This suggestion is simply unworkable, and its attempted implementation would contravene the essential premises of the system of representative advocacy employed before the NRC (na well as in Anglo-American
jurisprudence in general).
J As discussed hereinabove, the right to review information relative to the issues in this operating license proceeding inheres in the parties to that proceeding.
While the Rules of Practice provide that such-' parties may be represented by delegates, including attorneys-at-law (see 10 CFR sec. 2.713(b)),
their election to avai~1 themselves of that opportunity surely cannot be presumed to reduce their existing rights.
Insofar as disclosure of information to a party's designated representative may normally be adequate to satisfy that party's right to that information, (See, e. Jr., Smi th v. Ayer, 101 U.S.
320, 326 (1880)), it is because the representative, in turn, owes the party the duty of full disclosure.
Restatement (2d) Agency, secs, 272, 381.
Interference with that duty might properly be essayed in only the most compelling of circumstances,2 and only where there has been shown to be complete assurance that the essential purposes of the representation will not be adversely affected.
This cannot be assured in the instant situation.
Indeed, if one accepts the CASE argument that the documents contain information material to questions regarding the performance of TUEC in the design, construction and evaluation of Comanche peak, it follows a
It is for this reason that cases involving claims of trade i
secrets or related intellectual property rights cited by Tex-La are completely inapposite. While it may be appropriate in the extreme examples of such cases to limit discovery materials to counsel and the experts helping them prepare their case, the assumption is that despite such limitations upon disclosure the clients will be adequately represented due to: (1) the fact that it is by definition unrelated to the historical conduct of the client / party; and (2) the presumed ability of counsel and the experts to decipher and utilize the restricted information. No such situation exists in the instant situation, however, where the documents sought to be restricted are supposed to include information which can only be analyzed and reacted to upon consultation with those whom it is supposed to be about -- the Applicants in general and TUEC in particular. J
,,_-._._-.m
e that cuch information must be dicclosed to TUEC so that it gay
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consider its implications and its responses thereto.
Accordingly, based upon the foregoing analysis and upon our concern for our responsibilities to this Board, to the Commission and its processes, and to our clients, we have concluded that it is a~ppropriate to respectfully advise this Board at this juncture (without suggesting that it should reach this question at all in light of Tex-La's two preliminary arguments), that none of Applicants' counsel can or will accept or review the documents under the sort of restrictions suggested in the alternative by the Tex-La Response.
Resp ctfully
- bmitted, 3
J l
Thomas G.
Dig Jr.
l R.K. Gad III William S.
E ling Kathryn A.
Selleck ROPES & GRAY 225 Franklin Street Boston, MA 02110 (617) 423-6100 i
I
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- 1 00tKETEP USNK CERTIFICATE OF SERVICE I, William S. Eggeling, one of the attorneyBS fust {GePAbf71cante 1
.herein, hereby certify that on November 4, 198gpg;m,ade.se,rviceof I
the within document by mailing copies thereof, 00CKiliN[13 *VICI.
postkWdKprepaid, to:
Peter B. Bloch, Esquire Mr. James E. Cummins
. Chairman Resident Inspector Administrative Judge Comanche Peak S.E.S.
Atomic Safety and Licensing c/o U.S. Nuclear Regulatory Board-Commission U.S. Nuclear Regulatory P.O. Box 38 Commission Glen Rose, Texas 76043 Washington, D.C.
20555 Dr. Walter H. Jordan Nancy Williams Administrative Judge Cygna Energy Services, Inc.
881 W. Outer Drive 101 California Street, Suite,1000 Oak Ridge, Tennessee 37830 San Francisco, California 94111 i
Chairman Chairman
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Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel l
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission i
Commission Washington, D.C.
20555 Washington, D.C.
20555 Stuart A. Treby, Esquire Mrs. Juanita Ellis Office of the Executive President, CASE l
Legal Director-1426 S.
Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission 7735 Old Georgetown Road Room 10117 Bethesda, Maryland 20814 i
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Renea Hicks, Esquire Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel P.O. Box 12548, Capitol Station U.S. Nuclear Regulatory Commission Austin, Texas 78711 Washington, D.C.
20555 Anthony Roisman, Esquire Joseph Gallo, Esquire Executive Director Isham, Lincoln & Beale Trial Lawyers for Public Justice 1120 Connecticut Avenue, N.W.
2000 P Street, N.W.,
Suite 611 Suite 840 Washington, D.C.
20036 Washington, D.C.
20036 Dr. Kenneth A. McCollom Mr. Lanny A.
Sinkin Administrative Judge Christic Institute 1107 West Knapp 1324 North Capitol Street Stillwater, Oklahoma 74075 Washington, D.C.
20002 Ms. Billie Pirner Garde Mr. Robert D. Martin Midwest Office Regional Administrator, 3424 N. Marcos Lane Region IV Appleton, WI 54911 U.S.
Nuclear Regulatory Commission Suite 1000 i
611 Ryan Plaza Drive Arlington, Texas 76011 Elizabeth B. Johnson Geary S. Mizuno, Esquire Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P.O.
Box X, Building 3500 U.S.
Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Maryland National Bank Bldg.
Room 10105 7735 Old Georgetown Road Bethesda, Maryland 20814 tr William S.
Eggel