ML20214L682
| ML20214L682 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 09/08/1986 |
| From: | Eggeling W ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20214L684 | List: |
| References | |
| CON-#386-612 OL, NUDOCS 8609100325 | |
| Download: ML20214L682 (29) | |
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DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '86 SEP -8 P12'41 before the OFFICE GF StiCTW ATOMIC SAFETY AND LICENSING BOARD 00CKETihG .'. SE t%'!CI.
BRANCai
)
In the Matter of )
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TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL and COMPANY, et al. ) 50-446-OL
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(Comanche Peak Steam )
Electric Station, )
Units 1 and 2) )
)
)
APPLICANTS' RESPONSE
- TO " CASE RESPONSE TO APPLICANTS' MOTION FOR PROTECTIVE ORDER RE 6/27/86 DISCOVERY AND MOTION TO COMPEL" Pursuant to 10 CFR 5 2.730(c),2 Texas Utilities Electric Co., et al., (" Applicants") hereby reply to the motion to compel set forth in " CASE Response to Applicants' Motion for Protective Order re 6/27/86 Discovery and Motion to Compel."
2 Originally due a week ago under the Rules of Practice, the time for filing this Response was extended by agreement between counsel for Applicants and CASE; per telephone communication of August 25, 1986.
After this Memorandum was prepared for signature, counsel received a copy of the Board's Memorandum and Order (Management Issues Under Contention 5: CASE Request of July 2, 1986) September 2, 1986. A quick review of that decision indicates that it has obvious significance to some of the arcuments contained herein, particularly those in Part II(B) . It is not possible to evaluate fully that significance and modify the brief, if appropriate, and still meet the agreed upon filing deadline.
8609100325 860908 5 cm - 57 DR ADOCK 0500 jJ
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On June 27, 1986, CASE filed a Request for Production of Documents (CASE Request) in the above-captioned matter. The request was set out in six numbered paragraphs. Request No. 1 was for certain documents "in the possession of any of the owners of CPSES generated in the course of a certain
' monitoring program . . . undertaken by Tex-La . . .'";
Request No. 2 was for similar documents generated in the course of any other monitoring, independent assessment or evaluation conducted by other minority owners -- viz., other than Tex-La. In the Applicants' reply to the CASE Request,2 separate responses were included by each of the Joint Owners with respect to Requests Nos. I and 2. Texas Utilities Electric Co. (TUEC), the lead Applicant, advised that it had no documents responsive to those Requests; Brazos Electric Power Cooperative, Inc. (Brazos), said that to the extent it had non-privileged documents responsive to Requests 1 and 2, it would produce them at its offices; Texas Municipal Power Agency (TMPA) replied it had no a documents responsive to Request No. 1 and asserted a privilege with respect to documents responsive to Request No. 2; Tex-La Electric Cooperative of Texas, Inc. (Tex-La),
a Applicants' Response to Case Request for Production of Documents (June 27, 1986) and Motion for Protective Order (Aug. 1, 1986).
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r agreed to produce non-privileged documents in response to Request No. 1 and advised that it had no documents responsive to Request No. 2.3 TUEC, as lead owner, thereafter responded to Requests Nos. 3-6. Its response observed, in accordance with the Rules of Practice, that except as generally or specifically objected to thereinafter, the documents requested would be produced.
Applicants' Response prescribed that CASE could arrange a mutually convenient opportunity to inspect and copy those documents which were not being withheld in their entirety by contacting Applicants' designated counsel. No such contact was even attempted by CASE. Instead, its representatives filed the instant motion seeking to compel a substantial portion of what alrea'y had been offerred them. There is no equity in such a request. Moore's Federal Practice, Vol. 4A, 534.19 at 34-69; Spelling & Lewis, A Treatise on the Law Governing Injunctions, at 107 (" inasmuch as vain acts are in the same category as erroneous action, courts .
will in such case refuse to grant the process.").
As to Request No. 3, the Response observed that there 8 Id., Appendix A.
e 8 -
were no documents responsive to the Request as understood.
As a matter of caution, the Response went on to assert objections, in the nature of burden and privilege, to the request were it to be read in some other manner. Applicants thereafter made various objectiont to various portions of Requests Nos. 4-6.
Applicants also sought a protective order - "to the extent required under the Commission's Rules of Practice" --
thereby appropriately preserving their rights.
On August 15, 1986, CASE filed a document entitled " CASE Rsponse to Applicants' Motion for Protective Order Re 6/27/86 Discovery and Motion to Compel" (CASE Motion). This somewhat unstructured motion seems to request the following relief:* a " request" that Brazos be required to make its
- CASE also appears to-argue that the ongoing discovery relating to CPRT has been inadequate, relying in part on the affidavit of Mr. Adam Palmer submitted in connection with the prior motion to compel. CASE Motion at 4 n.7.
Submitted herewith is the affidavit of Mr. Terry G.
Tyler, CPRT Program Director, which demonstrates that the conclusions advanced by Mr. Palmer are the wholly erroneous products of Mr. Palmer's lack of understanding of the matters about which he has essayed to testify under oath. CASE's confused assertions in footnote 7 about the " central CPRT working files" (an impossibly l confused term, see Program Plan section III.J) and the failure of those files to contain " deficiency paper" (another confusing phrase that CASE insists on employing) are also wrong. The working files for completed Action Plans contain all the " deficiency paper" (i.e., records of deviations and deficiencies, if any, as defined in the Program Plan) that CPRT has generated. What the files do not contain, and were
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product' ion at the CASE office in Dallas or in Washington, D.C.; that TMPA either " identify the items" as to which it s claims a privilege in response to Request No. 2 "or produce the requested materials"; and that Tex-La be required to produce at CASE's Dallas office or in Washington,.DlC. and also either identify the privileged items it was planning to withhold or produce them. CASE Motion at 15-17. In addition, a request is made that each of the minority owners specifically address Request No. 6. Further, CASE demands that the Board order unrestricted compliance with Requests 3-6.
II.
The responses of the; Minority owners to CASE's arguments regarding Requests 1 and 2 are set forth in Appendices A-C hereto.
4 never intended to contain, are the NCRs written by the CISES Project as a result of CPRT findings: there was, contrary to CASE's implied assertion, no representation that NCRs would be contained in the CPRT Working Files at the November pre-hearing conference. To the contrary, what was represented at that time (as well as in the October 22, 1985, answers to interrogatories under dis:ussion at that time) was precisely that, because the NCRs were not a CPRT item, the "in process" objection did not apply to the NCRs and the NCRs were available for inspection. See Tr. 24249-50, 24256-57 (November 12, 1985). See also " Applicants' Responses to
' CASE's 8/27/85 Interrogatories to Applicants and Requests to Produce' and Request for Protective Order" (filed 10/22/85), Item A-19.
e e-Applicants' responses to those portions of the CASE motion which derive from Requests Nos. 3-6 are set forth immediately below.
A.
Request No. 3 was as follows:
"3. All documents and all other information which provided the basis for the statement by Applicants in their Current Management Views and Case Management Plan (6/28/85), at 7, that TUGCO management is not satisfied with the status of the plant and would not proceed to operate it, even if authority were to be granted, until all of the outstanding concerns have been addressed, their safety significance determined, generic implications and collective significance considered, and necessary corrective actions have been completed."
In response to this Request, Applicants replied as follows:
"There are no documents responsive to this request, inasmuch as the quoted statement of TUGCO management was not based upon any particular document (or known group of documents) but rather was the product of all the facts and concerns that had recently come to management's attenticn." App. Res. at 8.
With respect to this response, CASE argues:
"The Applicants' response appears to mean that they did not consider any written evidence about the plant when they made their statement that they had such serious concerns about its status that they would not operate it even if a license were granted. The response, however, is worded in such a way that it could also be interpreted to mean that they did base the statement on written evidence, but they do not know all the documents that were consulted. If Applicants know of any documents that were consulted, they should produce them,
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and their response is incomplete until they do so."
CASE Mot. at 6.
CASE's attempted distortion of Applicant's answer is frankly incredible. It was plainly stated that there-are no documents responsive to the CASE request. This is a full and complete response to that request. Indeed, it is substantially more.than is required. 10 CFR $ 2.741(d).
This ends the matter.5 B.
Request No. 4 was:
"4. With respect to each document identified on Attachment 1 to Texas Utilities Electric Company, et al., Response to Interrogatories and Requests for Documents dated June 16, 1986, (CPA Dkt.) a copy of all documents that (1) evaluate the findings and/or recommendations in those documents, (2) propose actions to be taken in response to the findings and/or recommendation, and (3) direct implementation of any actions in response to the findings and/or recommendations.
To this request, Applicants advanced three objections:
- 1) the request was overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible l
l 5 There is thus no occasion to reply to CASE's arguments regarding FRCP 11. Nor is it appropriate to address CASE's arguments as to the objections to this Request which were included in the event Applicants had misinterpreted the Request. Since CASE nowhere asserts Applicants' interpretation was incorrect, these j precautionary objections are moot.
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l evidence; 2) it is contrary to the discovery suspension orders issued in the CPA docket; and 3 ) it transgresses prior Board orders curtailing such general discovery.
The law regarding these objections, and a substantial portion of the record of this proceeding which is material to the proper application of that law, is set forth in Applicants' Response to " CASE Response to Applicants' Motion for Protective Order of July 16, 1986, and Motion to Compel" (July 31, 1986), filed before the Board on August 18, 1986.
As the Board's knowledge of those points was evident during the arguments on August 19, we hereby incorporate by reference that Memorandum in its entirety rather than burdening the record with another recitation of the same authorities. Those precedents require the same result with regard to CASE's latest motion to compel -- it should be denied.
The wording of Request No. 4 and the CASE Motion make clear that Request No. 4 is nothing more or less than a follow-up to a request initially made in, and relevant only to, the CPA docket. Such discovery has of course been stayed by order of this Board and the Appeal Board. To avoid these strictures, CASE argues again that there is a management character and competence issue in this case.
There simply is no such issue in this case!
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r 1 (1)
Only one admitted contention remains to be litigated >
with respect to Comanche Peak. It reads as follows:
"The Applicants' failure to adhere to the quality assurance / quality control provisions required by the construction permits for Comanche Peak, Units 1 and 2, and the requirements of Appendix B of 10 C.F.R. Part 50, and the construction practices employed, specifically in regard to concrete work, mortar blocks, steel, fracture toughness testing, expansion joints, placement of the reactor vessel for Unit 2, welding, inspection and testing, materials used, craft labor qualifications and working conditions (as they may affect QA/QC) and training and organization of QA/QC personnel, have raised substantial questions as to the adecuacy of the construction of the facility. As a result, the Commission cannot make the findings required by 10 C.F.R. 50-57(a) necessary for issuance of an operating license for Comanche Peak." (Emphasis supplied.)
This contention, as framed, thus deals specifically and unequivocally with adequacy of construction, not the competence and character of management. There can be no question about this. In the first place, the words simply will bear no other meaning. Perhaps even more telling is the fact that the draftsman and sponsor of Contention 5, CASE, has previously agreed with this commonsense interpretation -- an agreement that it would now eschew!
Had Contention 5 been deemed by CASE to encompass management competence and character, CASE would not have deemed it l
necessary twice to attempt, unsuccessfully, to have accepted for litigation specific contentions with respect to these matters. See CASE Proposed Contention No. 1 in Intervenor's l
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Supplement to Petition for Leave to Intervene and Contentions (May 7, 1979), and CASE's Motion to Add a New Contention September 14, 1982). CASE's past actions flatly preclude any assertion that management competence and
' character was intended to be encompassed within Contention No. 5.
(2)
It is at least equally clear that no other events have occurred which could somehow transmogrify Contention 5 into an issue containing management competence and cht,racter components. Applicants have been steadfast in their position that these issues are not in this Operating License proceeding, and they cannot be accused of having acquiesced in any sub rosa expansion of Contention 5.8 8 At the hearing on August 18-19, and perhaps in the instant motion as well (see pp. 1-2) it was argued that Applicants were guilty of duplicity because they allegedly urged to the Court of Appeals for the District of Columbia Circuit that the issues in the CPA proceedings were the same as those in the OL case -- (and thereby presumably encompassed management competence and character). When CASE attempted to demonstrate this alleged duplicity at the hearing, however, it was only able to produce a page from the Staff's brief to the Court of Appeals (which itself did not support the charge).
We have reviewed again Applicants' brief to the Court of Appeals. The arguments with which we have been charged were not made therein. To the contrary, what was pointed out to the Court was the undeniable fact that the broad factual allegations made by CASE in support of its request for a hearing in the CPA proceeding -- vi:
l Similarly, this Board has never ruled that these issues are to be injected into this proceeding. To the contrary, as recently as 11 months ago, this Board considered the ;
issue in the focussed context of a motion for modification of one of its orders. While the Board expressed its
" preliminary and non-binding" opinion that "the way in which management exercised its responsibility for the construction of Comanche Peak is relevant to the compiling of an adequate record about plant quality," it went on to communicate its hope that Applicants, through the CPRT, or the Staff, through its regulatory authority, would address management that Applicants were violating 10 CFR Part 50 allegations in support of Contention 5. CASE v. NRC, No. 86-1169, (D.C. Cir.) Brief of Intervenors Texas Utilities Electric Co., et al., at 7 (June 24, 1986).
We did not suggest that the legal issues arising in
- these different proceedings from those factual allegations were similar, nor that either proceeding contemplated an issue regarding managment competence or character. Instead, we appropriately advised the Court of Appeals that CASE's " allegations of design and
- construction deficiencies . . . are more appropriately
! litigated in the operating license proceeding . . . or in appropriate cases in an enforcement proceeding". Id.
at 55. This was a correct statement of the situation and in no way suggested that the legal issue in the CPA proceeding (" good cause for delay") was the equivalent of that in this OL case (" adequacy of construction") or that discovery arguably proper where the former was at issue was equally permissible where only the latter had been admitted.
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actions in their presentations in'the licensing hearings.
Memorandum (Applicants' Motion for Modification October 2, I' 1985, at 2. Of paramount importance is the fact that the !
- Board was extremely careful to go on to observe that:
To the extent that the CPRT does not assess management actions, including actions with respect to this litigation, we are hopeful that the Staff will rise to fill that void. If not, we will need to consider 2 whether to declare a sua sponte issue, considering all the evidence before us as this case is developed.
Id. at 3. That declaration has never issued and thus -- as r
a matter of the law of this case -- management competence has yet to be admitted as an issue in these proceedings.
i Until such time as that factual situation changes, the arguments used by CASE to attempt to justify its extraordinarly wide-ranging discovery requests are misplaced.7 7 One of the principal problems in grappling with the
" management" issue repeatedly advanced by CASE in support of its various overbroad discovery requests is the term's apparent chameleonlike character. Thus, for example, on page 7 of CASE's instant motion it is suggested that the basis for TUEC's conclusion that more is required before the plant would be ready for operation is " relevant to the issue of management ;
credibility." Almost the same phrasing - " issues of management's credibility" -- is used on page 9 with regard to Request No. 4. But on pages 11 and 14 it is argued that "a central issue in the proceeding is the way management dealt with its responsibility to maintain quality assurance and quality control in the design and construction of the plant."
It must be readily perceived that these are radically different concepts. The former (" management 12 -
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(3)
Unlike the situation which may obtain in a construction permit case, when management character and competence may be viewed as encompassed within a contention that the QA/QC of future construction will not be adequate, see Consumers credibility") does not appear to be an issue at all, except insofar as the credibility of any witness is properly a matter for consideration by the trier of fact. But that " issue" has not yet arisen and is certainly not one upon which the sort of discovery at issue in CASE's motion may be founded.
Perhaps the latter concept (" management's responsibility for the design and construction of the plant," using responsibility in the causative sense) could arguably be said to be potentially in the case, but it certainly cannot support shifting the enormous burden sought to be imposed by discovery framed as broadly as Request 4 and its ilk upon Applicants. To the contrary, Applicants' obligation is to make available all evidence pertaining to the adequacy of the CPSES design and construction effort. Where that evidence, through root cause analysis or otherwise, logically leads to such
" management" activities, it will be pursued and produced as was represented to the Board during the arguments on August 18-19. But the fact that TUEC management is, by definition, ultimately responsible (in the vicarious sense) for all activities at the site surely cannot be permitted to invert this telescope and validate all discovery demands on the ground that management
" patterns" may somehow be reflected in the product of the effort.
We submit that unless these matters are substantially clarified and their focus properly narrowed, CASE's invocation of " management issues" must be rejected as a matter of elementary due process, if for no other reason. See, e.g., Morgan v. United States, 304 U.S. 1, 18 ("The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them.")
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- Power Co.'(Midland Plant, Units 1 and 2), ALAB-106, 6 AEC 182, 184 (1973), at the operating license stage the two comprise separate and distinct concepts. " Adequacy of construction" goes to the physical status of the hardware, and inquires whether, as installed, the hardware is capable of being operated without posing an undue risk to the public health and safety. See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2, ALAB-756, 18 NRC 1340, 1345 (1983) Management character and competence, on the other hand, involves an assessment of the ability and willingness of the people who will be responsible for operating the plant to follow Commission regulations during i
the life of the operating license. See Houston Lighting &
Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 371 (1985). By their terms and fundamental concept, the two issues are distinct and unrelated.
If Applicants demonstrate CPSES is now properly designed and constructed, the Applicants must prevail on Contention No. 5. How long it took to be properly designed and constructed and the reasons why it took so long are flatly irrelevant to resolution of that Contention. Therefore, until such time as the Board further considers the propriety of injecting a sua sponte issue on these points, discovery requests cannot be validated on the basis of vague assertions that the information sought will apply to a i
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" management competence" non-issue. Instead, the propriety of any disputed discovery request must continue to be evaluated in the context of whether it is " reasonably calculated to lead to the discovery of admissible evidence."
10 CFR $ 2.740(b)(1). Request No. 4 fails to meet that standard,' and the motion to compel Applicants to respond to it must be rejected.
- CASE apparently misapprehends the meaning of this provision of the Rules (which is derived from substantially identical language in the Federal Rules of Civil Procedure). The phrase is not intended to be'an unlimited license to impose any discovery burden on an opposing party if it can possibly be said that some of the information obtained thereby might conceivably lead to still more discovery which might eventually lead to admissible evidence on the matters in issue. See, e.g.,
Halder v. Int'l Tel. & Tel. Co., 75 F.R.D. 657, 658
-(E.D.N.Y. 1977)("[E]ven though the requested information is in [the responding party's] control, he should not be forced to engage in extensive research and compilation, particulary when the purpose of the efforts is to assist
[the requesting party] in the preparation of his case."); Aktiebolaget Vargos v. Clark, 8 F.R.D. 635, 636 (W.D.N.Y. 1949)(" interrogatories are not to be used in an oppresive manner. An adverse party should not be required to perform burdensome labors or to execute difficult and expensive tasks, in searching for facts and classifying and compiling data. A litigant may not compel his adversary to go to work for him."); Tivoli Realty v. Paramount Pictures, Inc., 10 F.R.D. 201, 203 (D. Del. 1950)("It is equally clear to me that, desirable as discovery process may be, it should not place upon a defendant the burden of many thousand man hours of labor and the expense of many thousands of dollars"); Riss & Co. v. Ass'n of American Railroads, 23 F.R.D. 211, 213 (D.D.C. 1959); Banana Distributors, Inc. v. United Fruit Co., 19 F.R.D. 493, 495 (S.D.N.Y.
1956; Greene v. Raymond, 41 F.R.D. 11, 14 (D. Colo.
1966).
To the contrary, the provision specifically requires C.
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' Request No. 5 is:
"S. All documents upon which TUEC relied to support the following statements contained in its January 29, 1986, letter and request for extension of construction permit:
Applicants submit that good cause exists for the construction permit extensien[.] [p. 1]
Applicants submit that the delay which necessitates the construction permit extension was not the result of dilatory action by Applicants [.] [p. 2]
[T]here was no intentional delay of construction without a valid purpose. [p. 2]
Applicants objected to this requirement on the grounds that a response to it would have evidentary value only as to the CPA docket. This is not surprising because the request is by its terms an attempt to find the basis for statements made in the request for the CP extension. In response to this objection CASE first asserts:
"the documents requested are relevant to the OL proceeding because they relate to Applicants' explanation of their delay in completing the plant, and that the discovery must be reasonably calculated to lead to such evidence. Far ranging requests which seek to shift enormous burdens upon the interrogated party on the mere possibility that they may lead circuitously to possibly relevant evidence are seldom, if ever
" reasonably calculated" discovery tools. It is in any event plain that Request No. 4 does not meet that requirement. Indeed, it is doubtful whether it could meet that standard even if management competence were an admitted issue in this case.
thus to their competence and character." CASE Mot. at
- 10. ,
Why management competence and character are not encompassed in Contention No. 5 has been addressed hereinabove with respect to Request No. 4. The same
' arguments, and result, obtain here.
CASE also urges:
e "Since CASE alleges that the delay resulted from the breakdown in quality control caused by the harassment of quality control personnel, these documents are likely to reveal information.about harassment and intimidation as well. See CASE Motion to Compel of July 31, 1986 at 5."
Id.
There are two problems with CASE's attempt to justify this request on that basis. First, the request is in no way limited to the purported justification, i . e_. , documents relating to harassment and intimidation. Rather, the identified set could, by its trerms, include a universe of materials bearing no rational connection to the proferred justification. If in fact CASE were genuinely attempting discovery aimed at harassment and intimidation, it is its burden to focus discovery requests upon that topic. But as pointed out in our August 18 Memorandum, such wholesale discovery on harassment and intimidation is no longer permitted. Instead, discovery regarding this issue is confined to alleged incidents occurring prior to July 1, 17 -
s b o 1984. See, e.g., ASLB Mem. and Ord. (Discovery)
(December 23, 1985) at 5.
D.
Request No. 6 is:
"6. All documents that assess the status of the plant and that were presented at all of the periodic meetings of the Owners Committee and all minutes or other notes recording what transpired at those meetings where assessments were presented. See Burchette Speech, supra, p. 5."
Applicants objected to this request on grounds that the documents sought in part contained material with no relevance to the admitted contention; in part had evidentiary value only in connection with the CPA docket; were comprised of trial preparation materials within the meaning of 10 CFR $ 2.740(b)(2), thereby requiring a showing of need and inability to obtain equivalent materials; and comprised at least in part materials covered by the attorney-client privilege. App. Res. at 11-13. The necessity to raise all of these objections derived from the extraordinary potential breadth of the Request. "All minutes or notes recording what transpired at" all of the Owners meetings can be understood to seek papers which must contain objectionable material.
(1)
As was explained in the Applicant's Response, the function of the Owners' Committee is to permit representatives to receive information regarding the progress of the CPSES Project. The central focus of that Project, at least since this Owners Committee began to function, has been to present and successfully prosecute Applicants' request for an operating license regarding Units 1 and 2. That application of course was -- and still is --
being prosecuted through the vehicle of hearings before this Board. The documents recording the deliberations and discussions of the CPSES Owners with respect to that subject are thus squarely within the contemplation of 10 CFR
$ 2.740(b)(2): " materials prepared in anticipation of the hearing by a party's representative."' As such, CASE must
' CASE's motion advances a strained argument that proper recognition of these minutes as hearing preparation material would somehow immunize all information from discovery. CASE Mot, at 13. Exactly the contrary is true, of course. The underlying factual information created by the activities of Applicants' employees and agents in the construction of the plant is generally freely available. It is only when that information is transmitted to and discussed between the actual owners and controllers of the Project in litigation that the anticipation-of-hearing / deliberative-process values recognized in 6 2.740(b)(2) are implicated. Cf. Upjohn Co. v. United States, 449 U.S. 383 (1981).
It is therefore important to note that CASE does not here focus upon obtaining this underlying factual information. Rather, its aim is to capture all memorializations of all communications and deliberations make some specific showing that.they cannot obtain the-equivalent information some other way. CASE has wholly failed to meet this burden.18 Indeed, CASE's only attempt to do so is its argument (CASE Mot. at 14) to the effect that it is " crucial to" CASE's preparation that it be permitted access to the exchanges between the Joint owners assembled in Committee in order to analyze how they met their supposed obligations with respect to management of the Project. As discussed in the text hereinabove, the putative issue to which this is alleged to be " crucial" -- management competence and character -- is not in this proceeding.
Moreover, in view of the fact that the Joint owners Agreement provides that TUEC shall have sole responsibility and authority with respect to licensing and operation of the between the Joint owners. The sanctity of such documents is clearly promised by the Rules of Practice, and enforcement of that safeguard will not inhibit CASE
-- nor any other party in any other proceeding -- from obtaining all the information traditionally discoverable in operating license proceedings.
to CASE contends that courts have generally ruled that the work product privilege must be narrowly construed. The cases it cites, however, fail to support that proposition, inasmuch as each involved a governmental
" deliberative process" privilege, rather than the sort of work product protection safeguarded by the Rules of Practice. While governmental deliberations may be presumed to be public and open and afforded very limited protections against disclosure, the result is obviously quite different with the private communications between the owners of CPSES.
plant, the interactions of the Owners cannot by definition be relevant to that concern.
CASE's position is further undercut by the fact'that the information to which it may be legitimately entitled --
e.g., the substantive factual information communicated.to the Joint Owners _regarding the status of construction of the plant -- is' undeniably readily available to CASE in other ways. Indeed, it is already getting most of it through its ongoing discovery and has only to ask properly for the rest.
There is thus no possibility that CASE will be deprived of anything which may legitimately be said to be " crucial" to its position. Thus, its persistence in seeking to invade the communications between the Joint Owners, instead of concentrating its allegedly limited resources in examining and analyzir.g the enormous amounts of direct factual evidence already provided to it, suggests that its motive in pressing this point has little to do with the issues before this Board in this proceeding.st if In addition to the obvious ulterior motive of attempting to obtain discovery specifically prohibited in the CPA proceeding; the Board may also properly take note of the likelihood that CASE may be tempted to use discovery in this case to stockpile information for subsequent prudency hearings before authorities of the State of Texas. It should not be necessary for Applicants to demonstrate to a certainty that either of these motivations lie behind CASE's extremly far fetched discovery demands. That they exist should be enough to caution that such requests should be carefully examined t
(2)
In any event, CASE's entire argument as to Request No. 6 proceeds from an erroneous premise. As noted above, the Applicants made clear that they will produce the documents except to the extent objected to. App. Res at 2, supra at
- 2. This is all was required of them. 10 CFR $ 2.741(d).
CASE has been told that it may obtain non-privileged documents not prepared in anticipation of litigation. Given the nature of minutes, of course, it is likely that some of the material would properly be redacted. But, contrary to CASE's argument, nothing was used as "an excuse for withholding the rest of the requested material." To the contrary, the response merely shifted the initiative back to CASE.
CASE failed to meet this burden as well. It made no effort to contact counsel to view the documents which were offerred to it, but filed the instant motion instead. We submit that such hasty actions are hardly consistent with i the approach which this Board has urged the parties to take to discovery. In other circumstances we might be inclined to make an issue of this. But in light of the recently executed agreement regarding consensual modifications in the discovery process, Applicants have decided to make i
and narrowly implemented.
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available22 to CASE the minutes, notes and memoranda sought by Request No. 6 -- notwithstanding that they are not the subject of the instant motion.
CONCLUSION Applicants have now offered to produce everything sought under Requests Nos. 1, 2 and 6 -- and at the. times and places requested by CASE -- except for a few limited items ,.
clearly protected by privilege. There is thus no occasion to grant the motion to compel with respect to those Requests. Request No. 3 has been fully responded to as well, and the motion has no foundation with respect to that category. Request No. 4 remains plainly overbroad in that it seeks to impose upon Applicants the burden of locating and identifying a pool of potentially limitless material on the basis of supposed issues which are either not yet in the case or on which discovery has been closed or severely restricted. Request No. 5 similarly seeks discovery which has been prohibited to CASE previously. For these reasons.
as explained hereinabove, the motion to compel must be denied.
12 Subject to the reservations set forth in the Minority Owners responses, Appendices A-C, and without waiving Applicants' position that these documents and the subject matter and fruits thereof are not properly the arbject of such discovery.
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l Respectfully submitted, Robert A. Wooldridge WORSHAM,'FORSYTHE, SAMPELS &
WOOLDRIDGE 2001 Bryan Tower, Suite 2500 Dallas, TX 75201 (214) 979-3000 '
Thomas G. Dignan, Jk.
R. K. Gad III William S. Eggeling Kathryn A. Selleck ROPES & GRAY 225 Franklin Street Boston, MA 02110 (617) 423-6100 By / ,
William S. Ege .ing f v
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' APPENDIX A Brazos Electric Power Cooperative, Inc. takes the
.following positions with regard to CASE's Motion to Compel dated August 15, 1986:
CASE states that."TUEC and its co-owners have not made a good. faith ~ attempt to respond to the discovery." On its own behalf, Brazos resents and protests this statement, and submits that it is wholly unfounded. Brazos was advised by counsel for Applicants that its response was required only to the first two items in CASE's June 27, 1986 Request-for.
' Production of Documents. Brazos fully complied with its obligations in this regard.
CASE objects to Brazos's offer to make available in situ documents located in Waco, Texas. Brazos does not understand 10 C.F.R. $ 2.741 to oblige it to provide copies of documents at a location of CASE's choosing. Neither did CASE make such a request in its June 27, 1986 paper.
Accordingly, CASE's allegation of bad faith in connection with Brazos's response is wholly improper.
As a matter of courtesy, and without waiving the above objection, Brazos will make available in the offices of its Washington counsel the documents described in Appendix A to Applicants' Response to CASE Request for Production of Documents (June 27, 1986) and Motion For Protective Order.
CASE also indicates in its Motion to Compel that it desires materials in the possession of Brazos that are responsive to its Request No. 6. Brazos is willing to make these materials available under the same terms as the materials described above.
Brazos rejects any suggestion of bad faith in connection with its previous failure to respond to Request No. 6. As stated above, Brazos was advised by Counsel for Applicants that its response to this request was not required. As CASE recognizes in its pleading, TUEC is the lead applicant for purposes of discovery. This is pursuant to the Joint Ownership Agreement, which makes TUEC Brazos's sole agent in licensing matters. There is presently litigation in progress between Brazos and TUEC, and Brazos maintains that TUEC has, by its actions, destroyed the agency relationship established by the Joint Ownership Agreement. However, the present status of the Joint Ownership Agreement is unsettled, and it is TUEC's position that Brazos may not m
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represent itself independently in this operating License proceeding.
Arrangements for viewing and copying the documents requested by CASE should be made with Ben Finkelstein or Barbara Esbin at Spiegel & McDiarmid, Suite 1100, 1350 New I York Avenue, N.W., in Washington, D.C. (879-4000).
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APPENDIX B
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Tex-La takes the following positions with regard to CASE's Motion to Compel dated August 15, 1986:
(a) In light of the relatively small number of documents involved, any documents made available by Tex-La for inspection by CASE pursuant to CASE's discovery request of June 27, 1986, will be made available, at a mutually convenient time on appropriate advance notice to William H.
Burchette of Heron, Burchette, Ruckert & Rothwell, Suite 700, 1025 Thomas Jefferson Street, N.W., Washington, D.C.
20007.
(b) With respect to request number 1, except as noted below Tex-La is prepared to make available to CASE copies of all the documents referred to in that request. (Tex-La did not intend to suggest in its discovery answers that any of the monitoring reports themselves would be withheld on the basis of privilege or otherwise.) Tex-La asserts, however, that the following documents, which are within the scope of CASE's broad request for background and supporting documents relating to the monitoring reports, are either privileged as attorney-client communications or were prepared by either Tex-La's attorneys or its engineering consultants in anticipation of litigation and are, therefore, not discoverable.
Memorandum from Jim McGaughy to John Butts and Richard McKaskill dated April 30, 1986, regarding meeting with William Counsil.
Letter from Jim McGaughy to John Butts dated February 6, 1986, regarding lapse of Comanche Peak construction permit.
Letter from William H. Burchette to Jim McGaughy dated April 2, 1985, regarding Transcript of meeting between Cygna and TUEC.
Draft memorandum from Jeffrey Mathis, of Heron, Burchette, Ruckert & Rothwell, to William Burchette, dated December 19, 1985, regarding NRC monthly status meeting of December 18-19, 1985, Arlington, Texas.
(c) With respect to request number 6, Tex-La is prepared to make the requested documents that are in Tex-La's possession available for inspection by CASE, except that Tex-La will withhold, as protected by the attorney-client privilege, the following document:
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i Memorandum to File (with copy sent to John Butts),
dated December 12, 1985, from William H. Burchette,
, regarding the Owner's Committee Meeting of December i 11, 1985.
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APPENDIX C TMPA takes the following positions with regard to CASE's Motion to Compel dated August 15, 1986:
With respect to request number two, TMPA objects on the ground that any such documents created by TMPA's attorneys or agents would be protected as materials prepared in anticipation of litigation, under 10 C.F.R. $ 2.740(b)(2).
TMPA further responds, however, that it does not have any documents called for-in thir request.
With respect to request number six, TMPA will produce the documents called for in this request. Arrangements for **
viewing and copying the documents should be made with William W. Vernon at Fulbright & Jaworski, 1301 McKinney Street, Houston, Texas 77010 (713-651-5151).
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