ML20214D944
| ML20214D944 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/10/1986 |
| From: | Letsche K KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20214D730 | List: |
| References | |
| OL-5, NUDOCS 8611240302 | |
| Download: ML20214D944 (25) | |
Text
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November 10, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Board
)
In the Matter of )
) Docket No. 50-322-OL-5 LONG ISLAND LIGHTING COMPANY ) (EP Exercise)
)
i (Shoreham Nuclear Power Station, )
l Unit 1) )
)
SUFFOLK COUNTY'S MOTION FOR ORDER COMPELLING LILCO TO i RESPOND TO SUFFOLK COUNTY'S FIRST SET OF INTERROGATORIES AND REOUEST FOR PRODUCTION OF DOCUMENTS 1
i Pursuant to 10 CFR S 2.740(f), Suffolk County hereby re-quests the Board to issue an order compelling LILCO to respond to the portions of Suffolk County's First Set of Interrogatories and Request for Production of Documents, dated October 10, 1986 (hereafter, " Interrogatories"), which are identified below, for the reasons set forth below.
I. BACKGROUND The Interrogatories consisted of discovery requests seeking either factual information, documents, or both. Pursuant to 10 CFR SS 2.740b and 2.741, LILCO's response to the requests which were " interrogatories" was due within 14 days, while the response to the requests for production of documents was not due for 30 days. Egg Interrogatories at 1.
8611240302 861110 I PDR ADOCK 05000322 G PDR
O On October 27, 1986, LILCO filed "LILCO's Responses and Objections to Suffolk County First Set of Interrogatories and Request for Production of Documents Dated October 10, 1986,"
(hereafter, the " Response").1 The Response consisted of so-called " General Answers and Objections To All Interrogatories, Definitions and Instructions," responses or objections to the individual interrogatories, and the advice that LILCO "is in the process of identifying documents responsive to requests," that
"[alll documents referenced in these answers which are not enclosed will be provided within the 30-day production period to -
the extent LILCO does not object to their production," and that objections to requests for documents would also be provided by the 30-day deadline.
In this Motion, Suffolk County addresses only the responses
- to the Interrogatories which actually are included in the LILCO I Response, and only those objections which are followed by a t
i refusal to respond to a request. That is, we do not address herein either those instances in which LILCO has indicated that it may, or intends to, object to requests in its yet-to-be-filed 30-day response,2 or those objections which were apparently made for the record, but which are nonetheless followed by substantive 1 Although the Response was dated October 27, and according to ,
l the Certificate of Service, was served by mail on counsel for Suffolk County, counsel did not receive the Response until October 30, 1986.
2 Egg LILCO Response at 4, 5, 6, 7, 9, 10, 13, 15, 16 (por-tions of responses to Interrogatories 2, 5, 7, 8, 14, 25, 31 and 32).
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responses.3 II. DISCUSSION In its Prehearing Conference Order dated October 3, 1986, the Board admitted many of the Governments' contentions con-cerning the February 13, 1986 Exercise of the LILCO Plan. The Board also set a discovery schedule and ordered the parties "to conduct discovery on the issues raised by the admitted conten-tions." Prehearing Conference Order at 31.
The scope of discovery, as defined in the regulations, is -
the following:
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 defense of the party seeking discovery or to the claim or defense of any other party 10 CFR S 2.740(b)(1). Furthermore, if the information sought appears reasonably calculated to lead to the discovery of ad-missible evidence, even the fact that the information sought will be inadmissible at trial is not valid ground for objection. Id.
In NRC proceedings pretrial discovery is liberally granted to enable parties to ascertain the facts, to refine the issues, and to prepare adequately for a more expeditious hearing or l
trial. Egg Public Service Co. of New HamDshire (Seabrook I I
Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 494 (1984); Texas I
3 Egg LILCO Response at 5, 6, 14, 15'(responses to l Interrogatories 6, 7, 26 and 30). l
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O Utilities Generatino Comoany (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-81-25, 14 NRC 241, 243 (1981);
Pennsylvania Power and Licht Comoany (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 322 (1980);
Pacific Gas and Electric Comoany (Stanislaus Nuclear Project, i
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).
As will be demonstrated below, in many instances in the Response: LILCO objected on so-called " relevancy" grounds to '
discovery requests which seek information that is directly relevant to admitted contentions; asserted privileges without providing adequate and required identifying infocmation to enable .
the County, or this Board, to determine if the privilege is properly applicable to the materials in question; arbitrarily limited its " interpretation" of a request and thereby responded to only a part of the request; or merely asserted that, in its l l
opinion, requests are " unduly burdensome," and thereupon, refused to respond. We identify and address below the specific LILCO i responses which are improper, and request this Board to order LILCO to respond completely and properly to each of the
- Interrogatories as to which such improper responses were given.
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A. LILCO's " General Answers and Obiections" We respond to LILCO's " General Answers and Objections to All Interrogatories, Definitions and Instructions," (Response at 1-2) as they are applied to particular Interrogatories. One general comment is in order, however.
LILCO objects to Paragraph L of the " Definitions and Instructions" in the Interrogatories; that instruction indicates, in pertinent part, that:
) Whenever in the interrogatories there is a request to identify a person . . . set forth:
(1) his name; (2) his last known residence address; i
(3) his last known business address; (4) his last known employer; (5) his title or position; (6) his areas of responsibility; (7) his business, professional, or other relationship with LILCO; . . .
i Interrogatories at 4-5. LILCO's objection is that " disclosure of such information would constitute an invasion of privacy of those individuals, which may subject them to harassment and intimida-tion." Response at 2. LILCO reiterates this " invasion of privacy" objection and alleges that disclosure of the requested information "could, if used improperly, subject (identified persons) to harassment and intimidation," (agg Response at 5-6)
with respect to Interrogatory Nos. 6, 8, 12, 26 and 30. As Suffolk County noted in footnote 1 to Interrogatory No. 6, in the past LILCO has refused to identify by name LILCO employees who are members of LERO, and instead, has identified individuals by their LILCO employee numbers. At this time, we do not intend to seek Board intervention on this LILCO position as applied to the lower level LERO workers; however, in not seeking an order compelling disclosure at this time, the County does not waive its right to the information sought. In the future, it may become necessary to learn the identification of particular LILCO employees who participated in, or observed, particular aspects of the Exercise, in order to depose them, or otherwise determine relevant facts. Presumably, counsel will be able to reach agreement on how to deal with the logistics of obtaining such information when it becomes necessary. If not, we will seek a Board order at that time.
B. LILCO's resoonse to Suffolk County Interrocatory No. 5 Interrogatory No. 5, which followed an interrogatory re-questing videotapes made during the Exercise at the Emergency News Center, states as follows:
Provide copies of any other recordings, transcripts, minutes, summaries, or other documents concerning events which occurred during the Exercise.
I l
In response, LILCO stated that the majority of documents respon-sive to the request had already been provided, identified some cassette tapes that were responsive, identified notes taken by observers and controllers during the Exercise, and then asserted the following:
Finally, summaries of various exercise events have been prepared by or at the request of LILCO counsel. These documents include event-specific timelines and summaries of interviews with various Exercise players.
LILCO objects to the production of these documents on the grounds of attorney-client privilege and the work product doctrine. -
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Response at 5.
]
This is not a proper response to the interrogatory, nor is it the proper way to assert a privilege as the basis for refusing -
to respond to a valid discovery request. A party asserting either an attorney-client privilege, or the qualified privilege provided by the attorney work product doctrine, bears the burden of establishing the existence of the privilege. See Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1153 (1982). Earlier in this proceeding the Board held that:
[A] party objecting to the production of documents on grounds of privilege does have the obligation to specify in its response to a document request those same matters which it would be required to set forth in attempting to establish ' good cause' for the issuance of a protective order, i.e., there must be a specific designation and description of 1 (1) the documents claimed to be privileged, i I
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(2) the privilege being asserted and (3) the precise reasons why the party believes the privilege to apply to such documents.
Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1153 (1982) (emphasis in original);
Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 495 (1983). Egg also Duke Power Comoany (Catawba Nuclear Station, Units 1 and 2), LBP-82-116, 16 NRC 1937, 1944 (1982).
Matter either in the possession of attorneys or produced by, or at the request of, attorneys may be discoverable. The attorney-client privilege and the work product doctrine cannot be used to shield discoverable facts. Egg Lono Island Lichtino Co.,
16 NRC at 1158, citino Uoiohn Co. v. U.S., 449 U.S. 383, 395 (1981). LILCO cannot simply make a general objection to a valid discovery request and refuse to provide the information necessary to enable the other parties, or this Board, to determine whether a privilege is properly claimed, or whether, in fact, Suffolk County is entitled to obtain the requested materials.
LILCO has failed to respond fully to Interrogatory No. 5, and has failed to assert properly a work product or attorney-client privilege. The Board should compel it to do so.
C. LILCO's Resconse to Suffolk County Interrocatory No. 7 Interrogatory No. 7 states:
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, Provide:
- a. Copies of any questionnaires, forms, surveys, correspondence or other documents seeking information from Exercise players con-cerning the Exercise, their participation in it, or in events concerning the Exercise which occurred prior to, during, or after the Exer-cise; and
- b. All responses, or documents, or in-i formation received in response to the docu-ments referenced in (a).
In response, LILCO stated, in pertinent part:
l LILCO objects to Interrogatory No. 7(a), and -
in particular the phrase "or in events con-cerning the Exercise," as vague and incompre-hensible. Without waiving this objection, LILCO states that it is in the process of identifying documents which are responsive to this request.
Response at 6.
4 Since LILCO indicates its intent to respond to this Inter-rogatory in its 30-day document response, we do not at this time seek to compel any additional response to the Interrogatory. For i
clarification purposes, however, and in response to the LILCO i assertion that the phrase "or in events concerning the Exercise" l i
l is " vague and incomprehensible," we note that the request was intend'ed to cover " events" such as meetings held after the )
Exercise to discuss what happened during the Exercise, meetings held before the Exercise to discuss what was going to happen during the Exercise, and the like.
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D. LILCO's Resoonse to Suffolk County Interrocatory No. 8 Interrogatory No. 8 states:
Provide:
- a. Copies of any questionnaires, forms, surveys, correspondence or other documents seeking information from LILCO controllers, evaluators, observers or other LILCO personnel or contractors concerning the Exercise, their participation in it, or in events concerning the Exercise which occurred prior to, during, or after the Exercise; and,
- b. All responses, or documents, or in-formation received in response to the docu- -
ments referenced in (a).
In response, LILCO stated that it is in the process of identi-fying responsive documents, but identified one group of .
responsive documents which, following some redaction, will be produced: standard forms filled out during the Exercise by LILCO personnel designated as " observers." LILCO also stated, however, I
that:
On the day of the Exercise various LILCO at-torneys, who were classified as " observers,"
, also used the standardized observer forms.
LILCO objects to the production of these forms on the ground of the work product doctrine.
Response at 7.
For the reasons stated in the discussion of LILCO's response to Interrogatory No. 5 above, this general objection is not a proper assertion of the qualified privilege based on the work product doctrine. LILCO either must respond to the Interrogatory l
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byprovidingallresponsivedocbments,ormustprovideaspecific designation and description of (1) the documents claimed to be privileged, (2) the privilege being asserted and (3) the precise reasons why it party believes the privilege to apply to such documents. The Board should order LILCO to do so.
E. LILCO's Resoonse to Suffolk County Interrocatorv No. 9 Interrogatory No. 9 reads as follows:
Identify every company, organization, group, -
entity, institution, and . individual, other than those identified in item 6 (i.e., LILCO-employed LERO workers), who participated in any way in the Exercise. With respect to each organization identified, identify the person or persons affiliated with that organization who are knowledgeable concerning that organi-zation's participation in the Exercise. With respect to individuals identified, identify the organization or entity which they repre-sent or of which they are members.
In response to this Interrogatory, LILCO asserted the following:
LILCO objects to providing names of individ-uals employed by outside particip6 ting organi-zations for the reasons set out in its re-sponse to Suffolk County Interrogatory No. 6.
However, LILCO is providing a list of organi-zations which participated on the day of the Exercise with these responses.
Response at 8. The referenced " reasons" for refusing to provide the information requested are that disclosure of the identity of participating individuals "will invade the privacy" of such individuals "and could, if used improperly, subject them to harassment and intimidation." Egg Response at 5-6.
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There is no basis for LILCO's bald refusal to provide clearly relevant and discoverable information -- i.e., the identity of individuals, known to LILCO, who participated in the Exercise. Merely because a so-called " improper" use of such
- information can be conjured up by LILCO counsel does not constitute a valid or legally cognizable objection to a perfectly proper discovery request, nor does it justify LILCO's refusal to respond to such a request, particularly since it has not sought a protective order. Clearly the information sought is relevant to admitted contentions, and the Governments are entitled to obtain -
it if it is known by LILCO. The Board should order LILCO to respond to Interrogatory No. 9.
i F. LILCO's Response to Suffolk County Interrogatories -
Nos. 10 and 11 Interrogato.y No. 10 states:
Identify every company, organization, group, entity, institution, and individual, other than those identified in item 6, who partici-pated in any way in activities concerning the Exercise prior to or after the Exercise. With respect to each organization identified, iden-tify the person or persons affiliated with that organization who are knowledgeable con-cerning that organization's participation in the Exercise. With respect to individuals identified, identify the organization or entity which they represent or of which they are members.
Interrogatory No. 11 reads:
Provide copies of all correspondence, ques-tionnaires, or documents:
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- a. Sent by or on behalf of LILCO to the -
organizations or individuals identified in response to the previcus two interrogatories I (i.e., Nos. 9 and 10]; and
- b. Received from such organizations or individuals, concerning the Exercise.
In response to Interrogatory No. 10 LILCO stated:
LILCO objects to this request as overly broad, unduly burdensome and not relevant in that the information it seeks is not reasonably calcu-lated to lead to the discovery or admissible evidence. No admitted contention addresses either the pre- or post-Exercise performance of any organization named or unnamed. There- -:
fore, the list of organizations sought by this request is not related to the subject matter of this litigation.
Response at 8. Similarly, it objected to Interrogatory No. 11 on the grounds stated with respect to No. 10.
The asserted basis for L1LCO's objection and refusal to provide the information sought in Interrogatories 10 and 11 is invalid. Discovery is proper with respect to any matter that is relevant to issues and admitted contentions involved in the pro-ceeding. These interrogatories seek clearly relevant information even though the activities mentioned in the interrogatories took place prior to or after the Exercise occurred.
3 For example, facts concerning what organizations or indi-viduals were expected to do during the Exercise, or what actually happened or didn't happen during the Exercise, are obviously pertinent to the admitted contentions concerning the Exercise results. These matters'could well nave been discussed in f
meetings or correspondence prior to and after the Exercise occurred. For example, if there were consultants retained by LILCO to assist in preparing LERO players for participation in the Exercise, or to revise the LILCO Plan in order to eliminate deficiencies revealed during the Exercise, that is important and relevant information, to which the Governments are entitled, and which is sought by these interrogatories. Similarly, if an individual or an organization, relied upon by LILCO in the Plan, participated in meetings prior to the Exercise and discussed how they intended to participate in the Exercise, or what functions -
they could or could not perform during the Exercise, such information would also be clearly relevant and subject to discovery by the Governments. Thus, LILCO's assertion that "no admitted contention addresses either the pre- or post-Exercise performance of any organization named or unnamed," is simply a red herring. LILCO's " objection" to Interrogatories 10 and 11 misses the point, and is irrelevant. LILCO should be compelled to respond to Interrogatory No. 10 and also to Interrogatory 11 seeking the documents related to the activities identified in response to Interrogatory No. 10.
G. LILCO's Response to Suffolk County Interrogatories Nos. 15 and 16 Interrogatory No. 15 states: -
Identify all persons who participated in the drafting, designing, preparing, reviewing, '
revising, negotiating, or finalizing of '
proposed or actual Exercise objectives.
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' Suffolk County Interrogatory No. 16 requests: " copies of all documents, including correspondence and drafts, concerning :
proposed or actual exercise objectives."
In response to Interrogatory 15, LILCO stated:
i LILCO objects to Suffolk County Interrogatory No. 15 on the grounds that it seeks informa-tion that is not relevant, and is not reason- -
ably calculated to lead to the discovery of admissible evidence. The only contentions to which this interrogatory is arguably relevant are Contentions Ex 15 and 16. Those con- i tentions allege that the exercise, as run, was so limited that it did not yield valid results for judging compliance with S 50.47(a)(2). -
Indeed, in admitting these contentions the
. Board expressly stated that "[t]he full parti-cipation exercise described in 10 CFR 50.47, i App. E IV.F.1, . . . provides the standard.
against which the February 13, 1986 exercise i is to be measured." Hence, the only facts '
relevant to Contentions Ex 15 and 16 are what -
was tested on February 13, and whether the i test complies with 10 CFR 50.47, App. E.
Events which occurred prior to the February 13 l exercise, including the preparation of the Exercise objectives and scenario, are irrele-vant to deciding those issues.
! Response at 10. LILCO objected to Interrogatory No. 16 for the ,
! recaans it stated with respect to No. 15, plus the additional 4 ground that, "it may seek information which is protected by the
! attorney-client privilege." Id.
i LILCO's primary objection to Interrogatories 15 and'16 is i totally without basis. First, its premise that "the only contentions to which this interrogatory is arguably relevant are l 4
Contentions Ex 15 and 16," is incorrect. While the information sought in Interrogatory 15 may be relevant to issues raised in I
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Contentions Ex 15 and 16, such information is also relevant to the many other admitted contentions which address LILCO's inability to satisfy exercise objectives during the Exercise (e.o., Contentions Ex 38, Ex 39, Ex 40, Ex 41, Ex 47, Ex 49).
How or why exercise objectives were drafted the way they were, how they were changed during the course of negotiating and finalizing them, and information concerning what was intended to constitute satisfaction of such objectives, is information which clearly is relevant to matters raised in the Governments' contentions, since those contentions concern various exercise .
events and performances by LILCO players which, the Governments allege, did not in fact satisfy exercise objectives. Thus, LILCO's relevancy objection to Interrogatories 15 and 16 must be rejected as without basis.
In addition, the separate objection to Interrogatory 16 that it "may seek information which is protected by the attorney-client privilege," is an improper response to that interrogatory and does not constitute the proper assertion of the referenced privilege for the reasons stated above with respect to LILCO's response to Interrogatory No. 5. Accordingly, LILCO should be compelled to respond to Interrogatories 15 and 16.
H. LILCO's Response to Suffolk County Interrogatories Nos. 17 and 18 Interrogatory No. 17 states:
Identify all persons who participated in the drafting, designing, preparing, reviewing, revising, negotiating, or finalizing of pro-posed or actual Exercise scenarios.
Interrogatory No. 18 seeks " copies of all documents, including correspondence and drafts, concerning proposed or actual Exercise scenarios."
In response to Interrogatory No. 17, LILCO objected "for the reasons stated in LILCO's response to Suffolk County Interroga-tory No. 15." Response at 11. Similarly, LILCO objected to Interrogatory No. 18 on the grounds stated with respect to No. 15 -;
and also on the ground that "it may seek information which is protected by the attorney-client privilege." Id.
These LILCO objections must be rejected for the reasons stated above with respect to the same objections raised con-cerning Interrogatories 15 and 16. Discussions and correspon-dence concerning the drafting, revising or finalizing of proposed and actual Exercise scenarios clearly could lead to relevant and admissible evidence concerning the assumptions upon which the actions of Exercise players were based, and concerning what actions the designers of the Exercise expected Exercise players to take in response to scenario events. Such assumptions and expectations constitute facts which are essential to an evaluation of whether actions by Exercise players were appropriate, given the scenario to which they were purportedly responding, as raised in admitted contentions (e.o., Contentions Ex 15 (subpart I), Ex 36, Ex 38, Ex 39, Ex 40, Ex 41).
Accordingly, there is no basis upon which LILCO can legitimately object to the requests contained in Interrogatories 17 and 18.
It should be compelled to respond to those requests.
LILCO's additional objection to Interrogatory 18 on the ground that it "may seek" material protected by the attorney-client privilege is an improper assertion of such privilege as stated with respect to LILCO's similar response to Interrogatory No. 5.
I. LILCO's Response to Suffolk County Interrogatory Nps. 19, 20, and 21 -
Interrogatory No. 19 states:
Identify by date and d'escription all drills, exercises, tabletop exercises, classroom training sessions, and all other LERO training activities that occurred during the calendar year preceding the Exercise.
Interrogatory No. 20 states "for each activity identified in response to the previous interrogatory, identify the persons who participated." And, Interrogatory No. 21 states "for each activity identified in response to Interrogatory 19, provide all documents concerning the activity."
LILCO's response to Interrogatories,19, 20, and 21 is the
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fo11owing:
1 LILCO objects to Suffolk County Interroga-tories Nos. 19, 20 and 21 on the grounds that they seek information that is not relevant and is not reasonably calculated to lead to the j discovery of admissible evidence. LILCO also I objects to these interrogatories as unduly i burdensome. Over 300 drills, exercise, table-
l tops and other training sessions are respon-sive to this requeat; the names of persons who attended these training activities total near-ly 20,000; and upwards of 200,000 pages of documentation were generated by these training sessions. The documents sought by this series of interrogatories are similar in type to earlier training documents which served as the basis for litigation on the training aspecte of the Shoreham Emergency Plan.
Response at 11-12.
LILCO's relevancy objection is baseless. These three interrogatories seek basic factual information concerning the LERO training activities which occurred during a well-defined '
period -- i.e., the calendar year preceding the February 13, 1986 exercise. Such information is directly relevant to the issue raised in Contention Ex 50, which is that the Exercise demonstrated fundamental flaws in LILCO's training program which preclude a finding of reasonable assurance that adequate protective measures can and will be taken in the event of a Shoreham accident. Contention Ex 50 expressly alleges that the Exercise demonstrated that the LILCO training of LERO members, which occurred prior to the Exercise, did not adequately prepare the LERO personnel to perform appropriately or effectively during the Exercise. It also alleges that LILCO's proposals to modify its training materials or procedures in order to "fix" the flaws in LERO training that were revealed by the Exercise, would not in fact correct those flaws. In order to prove the allegations set forth in Contention Ex 50, it is necessary to have a full understanding of the pre-Exercise LERO training. For example,
. 1 without'such factual information, there can be no intelligent evaluation of proposed post-Exercise training; if that training is the same as the training which took place prior to the Exercise -- and was so ineffective as revealed during the Exercise -- there is no basis to believe that proposed training
" fixes" could successfully correct the flaws revealed in the Exercise. Similarly, if pre-Exercise training purported to cover the particular skills which LERO players were unable to demonstrate during the Exercise, that fact would provide persuasive evidence concerning the inadequacy of the LERO -
training program as demonstrated during the Exercise, as alleged in Contention Ex 50. Thus, there is absolutely no basis for LILCO's assertion that it does not need to respond to Interroga-tories 19, 20 or 21 because they do not seek relevant informa-tion.
In addition, LILCO's bald assertion that these interroga-tories are " unduly burdensome," is not a valid objection. Sag Lono Islan'd Lichtino Co., 16 NRC 1144 at 1155. First, there is nothing " unduly burdensome" about the simple and straightforward request contained in these interrogatories. They are not open-ended, they are very specific, and the information sought clearly exists and has already been identified by LILCO. Second, while there may be many pages of documents which are responsive to this request, that fact does not justify refusal to produce them for inspection as provided by the discovery rules. Voluminous document productions have occurred many times over the course of
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r i . this proceeding, and the logistics of such productions are
- routinely handled by the parties.4 In short, there is no basis l for LILCO's refusal to respond to Interrogatories 19, 20, and 21 and the Board should compel it to do so.
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- J. LILCO's Response to Suffolk County Interrocatory No. 27 Interrogatory No. 27 states:
Provide copies of all documents concerning the Exercise prepared by the persons identified in response to the prior Interrogatory prior to, during, or after the Exercise. ..
The referenced prior Interrogatory (No. 26) sought the identity of members of the LERO " control organization" and the "LERO-Master Controller." -
In response to Interrogatory No. 27, LILCO stated:
Controllers also served as observers during the Exercise. The documents prepared by LILCO controllers in their role as observers have already been-addressed in response to Suffolk County Interrogatory No. 8. At the present time, LILCO has been unable to identify any controller message that a LILCO controller may have given to any collection of exercise players, except for those messages contained in the exercise scenario and in the offsite ,
documents which have been provided to Suffolk County.
Response at 14.5 4 For example, the most common practice in the case of large productions is to have requesting counsel review the documents on the premises of the producing party, and select at that time
, those documents of which copies are desired.
5 The referenced' response to Interrogatory No. 8 is:
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m LILCO's response to Interrogatory No. 27 is on its face incomplete. While LILCO does intend, apparently, to provide the so-called " observer forms" filled out by controllers "in their role as observers," the response to Interrogatory No. 27 fails to address the request for the identification of documents concern-ing the Exercise, prepared by controllers other than "in their role as observers." If, other than " observer forms," there exist no documents prepared by controllers concerning the Exercise, LILCO should so state. As drafted, however, the response appears to be incomplete and nonresponsive. -
Similarly, LILCO's reference to " controller message (s) that a LILCO controller may have given to any collection of Exercise players," also appears to be an attempt to narrow the request contained in Interrogatory No. 27 to an extent clearly not ,
intended by that Interrogatory. The request covers all documents prepared by controllers prior to, during, and after the Exercise; it is not limited only to " messages" that controllers may have given to " collections" of Exercise players. The Board should compel LILCO to fully and completely answer Interrogatory No. 27.
On the day of the Exercise certain LILCO per-sonnel were designated to observe and comment on events occurring during the Exercise at several locations. Each observer filled out a standard form. LILCO will provide copies of these documents to Suffolk County, with names and phone numbers of LILCO personnel redacted, as soon as the redacting process is completed.
Response at 7.
s.
a K. LILCO's Resoonse to Suffolk County Interroaatorv No. 31 Interrogatory No. 31 states:
Provide copies of all documents concerning the
. Exercise prepared by [LILCO observers] prior to, during or after the Exercise.
LILCO's response to this request merely cross-references its re-sponse to Interrogatory No. 8, and adds the additional objection
- "to the production of notes taken by legal personnel on the ground of the work product doctrine." For the reasons stated t ~
with respect to LILCO's responses to Interrogatory No. 8 and Interrogatory No. 5, this response is imppoper and incomplete, and the Board should order LILCO to respond to Interrogatory No.
- 31. .
L. LILCO's Resoonse to Suffolk County Interrocatory No. 33 Interrogatory No. 33 states:
Provide copies of any documents of any kind relating to the Exercise and not previously produced, including, by way of example only, evaluator, controller, observer and/or player logs, messages and notes, whether produced or generated by LILCO, LERO, or non-LILCO organi-zations or individuals.
LILCO's response is the following:
LILCO objects generally to this interrogatory as overly broad and unduly burdensome. Liti-gation-involving the Shoreham Emergency Plan has been ongoing for more than four years.
During that time, Suffolk County has demon- ,
strated a detailed understanding of-the l Shoreham Emergency Plan, the LERO organization
4 1
and the training program for LERO workers.
Given this background understanding together with the finite set of events that occurred during the February 13 Exercise and the ex-tensive information discovery LILCO has already provided to Suffolk County, LILCO would have expected more focused requests aimed at admitted contentions. This inter-rogatory seeks an endless array of documents from at least a year before the February 13 Exercise to the present. The vast majority of these documents have little or no relevance to admitted contentions.
Response at 16-17.
This general objection is not a valid objection, for the reasons stated with respect to the similar objection to Inter-
- rogatories 19, 20 and 21. Interrogatory 33 is specific and li-mited in nature. It seeks documents relating to the February 13 Exercise that have not been produced in response to other inter .
rogatories. Such documents clearly are relevant to the admitted contentions concerning that Exercise, as even LILCO concedes in asserting its objection. There is no basis for LILCO's assertion that the Interrogatory " seeks an endless array of documents," and such hyperbolic assertions cannot be countenanced as the basis for refusing to respond to legitimate discovery requests. Eee Lono Island Lichtino Co., 16 NRC 1144, at 1155. Accordingly, LILCO'should be compelled to respond to Interrogatory No. 33.
III. CONCLUSION For the foregoing reasons, Suffolk County requests that the Board compel LILCO to respond to Interrogatories Nos. 5, 8, 9, l 1
10, 11, 15, 16, 17, 18, 19, 20, 21, 27, 31, and 33, in the l l
)
I
4 particulars set forth herein, within 5 days. In light of the December 19 discovery cut-off set by the Board, and the fact that l
depositions have already been scheduled to take place beginning November 17, it is essential that the information sought be provided as soon as possible.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Highway Veterans Memorial Highway Hauppauge, New York 11788 ..
Ka r la/ J . Letschf Michael S. Miller .
Kirkpatrick & Lockhart 1900 M Street, N.W.
Washington, D.C. 20036 Attorneys for Suffolk County
..