ML20214P346
| ML20214P346 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/28/1986 |
| From: | Bloch P Atomic Safety and Licensing Board Panel |
| To: | Citizens Association for Sound Energy, TEXAS-LOUISIANA ELECTRIC COOPERATIVE OF TEXAS |
| References | |
| CON-#486-1717 79-430-06-OL, 79-430-6-OL, OL, NUDOCS 8612040167 | |
| Download: ML20214P346 (5) | |
Text
<s LBP fk((
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'86 DEC -1 /d0 :39 Before Administrative Judges:
Peter B. Bloch, Chairman b0hI Dr. Kenneth A. McCollom Al Dr. Walter H. Jordan
)
In the Matter of
)
Docket Nos. 50-445-0L.
)
50-446-OL
)
TEXAS UTILITIES ELECTRIC COMPANY, et al.)
--)
ASt,BP No. 79-430-06 OL (Comanche Peak Steam Electric Station, )
Units 1 and 2)
)
)
November 28, 1986 MEMORANDUM AND ORDER MEMORANDUM (Discovery of Tex-La Documents)
On November 4, 1986, Tex-La Electric Cooperative of Texas, Inc.
I (Applicants ) filed their response to Citizens Association for Souno Energy's (CASE's) motion to _ compel the production of certain Tex-La documents. Tex-La argues that the documents are privile~ged because they were prepared for litigation between it and Applicants' managing part-ner, Texas Utilities Electric Co., et al. ; they cite Hickman v. Taylor, 329 U.S. 495, 675 S. Ct. 385 (1947) and Texas Utilities Electric Compa-g, 20 NRC 1464, 1473 (1984).
I Although Texas Utilities Electric Co., et al. is generally referred to as Applicants in this case, it has permTtted Tex-La, a minority owner, to respond to this motion. See Applicants' Response to CASE (10/20/86) Motion to Compel Tex-La Documents, November 4,1986.
lIk Obk
[
G
m l'
i Tex-La Documents: 2 We accept Tex-La'.s characterization of the disputed documents, as follows:
In April,1985, Tex-La requested its attorneys. with the help of Southern Engineering, to prepare a detailed study of the history of the problems at Comanche Peak and of TUEC's [ Texas Utilities Electric Company's] potential liability to Tex-La as a result of these problems.
This report took several months to complete,.and, around the time it was finished, a draft complaint against TUEC was
. prepared for filing in Texas. state court.
-[T]he information in these reports and in their sup-porting documents go to the very heart of Tex-La's case against TUEC.
They represent Tex-La's only opportunity for independent 4
verification of the status of the design, construction, and licens-ing effort for the plant.
. [T]he reports served the.
purpose of gathering, distilling, and analyzing information that would be used as part of the basis of a law suit against TUEC...
We also accept Tex-La's representations concerning the limited direct observation of plant operations contained in these Southern Engineering documents.
However, although we have not examined these documents, we consider them relevant to CASE's preparation.
First, CASE has argued that Applicant's management style contributed to the perception among quality assurance workers that they were being harassed and quality was being sacrificed for schedule; it appears likely that Tex-La's cons'ultant has examined matters that CASE will consider relevant to this argument concerning management style.
Second, CASE is attempting to show a l
widespread breakdown of quality assurance for design and construction (an argument supported in part by our decision of December 1983).
Although there is no certainty that Southern Engineering's view of "the l
L--
M.
i u
Tex-La Documents: 3 history of the problems at Comanche Peak" will support CASE's view, there is a plausible causal link between management problems in other areas and management problems with quality assurance.
Hence, it is CASE, and not Applicants, that should decide whether these reports are helpful to it.
In summary, we consider the Southern Engineering documents to be discoverable because of their relevance and because they may suggest further avenues of discovery.
We agree with Applicants in approving of the principle that the work product privilege applies to the protection of information gathered in one case that is sought in another.
But we would not apply that general principle in this case.
For purposes of this litigation, Applicants are one party.
Their intramural squabbles may not be asserted as a reason to deprive interve-nors of information relevant to the preparation of their case. Once the information exists, we do not consider it relevant to inquire whether it exists because of problems existing within Applicants' team.
They are collectively reaponsible for meeting their discovery obligation.
That still leads to a squabble that we arguably ought to resolve.
Tex-La does not want Texas Utilities Electric Co., et al. or its lead attorney to be able to gain access to this information, which it can then use against Tex-La in the pending state court litigation.
To us, this seems a private squabbie related to contractual rights and claims being asserted between the parties.
If Texas Utilities seeks access to this information it cr.n obtain it by agreement with Tex-La or by compul-sion in the state proceeding.
We do not consider it our role to a
r-
's y,
o Tex-La Documents:
4-interfere. in this private squabble, even if it makes it harder for 'the
" lead" attorney to prepare its entire case.
H If indeed the information is not relevant or important in our case, as Tex-La has argued, then Texas Utilities will not be ' harmed. If it'is relevant, it affects the joint interests of Texas Utilities and Tex-La, which should reach an accommodation for-their mutual benefit or should r
settle the question in state court.
We note with some concern allegations that Worsham, Forsythe, Sampels and Wooldridge (the law firm), who are. lead attorneys in this i
litigation, are also engaged in suing Tex-La in state court.
It would appear that Tex-La is a client of the law firm, which was paid by its client to acquire expertise and knowledge that now appears to be avail-4 able for use in state court against it.
We note 'that this situation 1
threatens unnecessarily to complicate this case and may require our action in the future.
However, given our view of the pending discovery motion, we do not find these allegations relevant to the outcome of the motion current 1y'before us.
l To protect the information from Texas Utilities and avoid prejudic-ing the state-court contest, we shall direct CASE-to write and execute a l
protective agreement.
If Tex-La approves of the agreement and it is executed, it shall constitute an Order of this Board. Should Tex-La not approve of the agreement, it shall be submitted to the Board for its consideration.
}:
'4 v
Tex-La Documents: -5 ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 28th day of November 1986 c
ORDERED:
That CASE shall write and execute a protective agreement, pursuant to the attached memorandum. The executed agreement shall become the
_i Order of this Board.
That promptly after the protective order is duly executed, Tex-La Electric Cooperative of Texas, Inc. shall promptly make available to CASE, in Washington, D.C. or another mutually agreed site, all of the Southern Engineering documents that are the subject of this discovery request.
FDR THE ATOMI FETY AND LICENSING BOARD q.
bd Peter B. Bloch, Chairman '
ADMINISTRATIVE JUDGE Bethesda, Maryland
[ southern /BLOCH5]