ML20216D111
| ML20216D111 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 06/25/1987 |
| From: | Condit R, Roisman A GOVERNMENT ACCOUNTABILITY PROJECT |
| To: | NRC |
| References | |
| CON-#287-3844 2.206, OL, NUDOCS 8706300456 | |
| Download: ML20216D111 (13) | |
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UNITED-STATES OF AMERICA
'l' jg UUN251997n NUCLEAR REGULATORY COMMISSION r8
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9' hy In the matter of:
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0D t Houston Lighting and Power
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Company
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Docket Nos. 50-498 OL
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<50-499 OL-
-(South Texas Project, Units
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1 and 2)
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i REPLY'OF BILLIE P. GARDE, ESQ. TO THE NRC. STAFF'S OPPOSITION-TO MOTION TO QUASH AND DE FACTO OPPOSITION TO PETITION PURSUANT TO 10 C.F.R. :52.206
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Anthony Z.jRoisman,,Esq.
1401 New York Avenue N.W.
' Suite 600 Washington, D.C.
20005 (202) 628-3500 David.S. Rubinton
~j Richard E. Condit Staff Attorney, GAP:
1555 Connecticut Avenue.N.W.
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' Suite 200 Washington, D.C.
20036 (202) 232-8550 Dated:
June 25, 1987 8706300456 870625 C.
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INTRODUCTION i
Victor Stello, Jr.,
improperly subpoenaed Billie P. Garde, Esq., to testify before NRC personnel concerning confidential'and privileged communications between Ms.-Garde and her clients.x In response, Ms. Garde moved to quash the. subpoena and,.."
'I through:a concurrently-filed S2.206 Petition, demonstrated 40-j acceptable approach to the NRC's treatment of the subject matter of the subpoenaed information.
Specifically, this Petition reque ted the establishment;of an NRCsinvestigative unit independent of Mr. Stello and-Region IV, with which'Ms.. Garde's?
1 clients would be willing to share their concerns.
i The NRC Staff' responded tos.Ms,' Garde's Petition and' Motion s
by requesting the denial of the Motion.
However, the' Staff' i
failed. to respond to charges of the misfeasance, malfeasance and '
dereliction of duty of Mr. Stello;and officials in Region ~IV.
Failuta to ra{he a defense,to these charges suggests that these U'
s charcjes have merit and confirms-(t$ut they are properly before the '
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[For the reasons set forth below, the Commission should quash the subpoena by granting'the Motion or, in the alternative, set aside the-subpoena and grant the Petition.
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THE ATTORNEY-CLIENT PRIVILEGE HAS BEEN'ESTABLifiHED A.
The affidavit of ~ Billie Pirner hiard aridethe retain' epi agreement clearly establish an' attorney-client-'
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-relationship.
In their answer, the NRC' Staff claims that'" GAP has not a
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provided a sufficient basis on which the Commission could Nb o
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conclude that..the. attorney-client privilege protects any~of the
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information sought by the NRC staff."
Staff-Answer at 10.
This w
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-argument.i's_ patently without merit.
.The Staff recites Wigmore's-elements for establishing the l attorney-client privilege:
-(1). Where legal. advice'.of any' kind:is-sought (2).from
'a professional 11egal adviser in his' capacity as such
.(3) the~ communications.rel'ating to that purpose, (4) p^
- made,iniconfidence~(5) by the" client,J(6)'are at his' i_nstance; permanently protected-(7):from disclosure by himself or-byjthe legal adviser,;-(8)-except the:
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- protection be waived.-
SaWigmore': Evidence.$2292 (McNaughton Rev.'1961)..
Ms.3 Garde accepts lthis characterization of the. black. letter-
-law of the' attorney-client privilege and asserts that'she clearly meets each and every element.as^ set forth therein.
Fir'st',.the South Texas Nuclear Project (STNP) employees-who
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came to Ms.-Garde sought advice 'regarding.' disputes and potential disputes with their employers.
(Garde Affidavit, 13),
These-employees also sought' advice on the proper. handling of.their allegations (Representation Agreement,'ll; Affidavit,'13)'and the protection of their jobs and future. employment possibilities
( Af fidavit, ['(i).
Billie Pirner Garde is an attorney, andiin that capacity Ms.
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Garde isiadvising her. clients, thereby' meeting the.-second s
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, SeO. generally, Representation Agreement'and
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element.
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. Affidavit).
The:STNP employees who'came to Ms. Garde ~ communicated'.to her:
i their concerns about-the design, construction,. management.and the q
l potential' operation;.of the'STNP in the hope of receiving advice 2
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from Ms. Garde on how best to handle these allegations within the
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NRC while protecting their: employment status (Affidavit, 1 4).
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These communications clearly fall within the scope of Wigmore's third element.
Further, it is.impeoper for Mr. Stello to attempt t
to probe into the attorney-client relationship by commanding Ms.
Garde to testify concerning the allegations made to her by STNP employees.
i The communications for which the privilege is claimed were clearly reade. in confidence, satisfying Wigmore's fourth element.
The STNP employees would not speak to Ms. Garde without the understanding that the communications would be kept confidential.
(See Representation Agreement, 12 and see generally, Affidavit).
Since it is the client's communications which are in issue, Wigmore's fifth element is clearly met as well.
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The remaining elements merely follow'from the establishment i
k of.' the initial five elements and therefore no further analysis is needed.
Since the elements necessary to establish an attorney-client privilege have been met and the clients.have not waived that privilege, the privilege attaches to the communications between Ms. Garde and her clients.
Nevertheless, the Staff asserts that it is unclear whether
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Ms. Garde was actually acting in a capacity to which the attorney-client privilege attaches.
In support of this assertion the Staff cites N.L.R.B. v. Harvey, 349 F.2d 900 (4th Cir. 1965) for the proposition that "notwithstanding a detailed affidavit by an attorney purporting to establish an_ attorney-client relationship, further facts unequivocally. establishing the
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character of the attorney's retainer were necessary to determine whether the attorney-client orivilege was applicable."
Staff Answer at 9.
Curiously, the Staff failed to indicate, even in a general sense, how Ms. Garde's retainer agreement or detailed affidavit make it unclear.whether she was acting in her. capacity
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4 as an attorney such that the attorney-client privilege attaches.
Harvey adds credence to Ms. Garde's claim of privilege by 1
recognizing that the attorney-client privilege attaches where, in order to furnish adequate legal services to the client, the legal services become indistinguishable from non-legal services.
Harvey at 907.
Therefore, even if it is found that some of Ms.
Garde's communications were'not of a legal nature, as the Staff seems to suggest, the attorney-client privilege will remain in effect.
The Staff also questioned whether Ms. Garde could demonstrate "that the privilege-would attach to all of the information she has gathered."
Staff Answer at 9.
The Staff-j cites no precedent for the notion-that a demonstration of the i
applicability of the privilege needs to be made for all of the information obtained-by Ms. Garde from her clients.. However,-to the extent that it is necessary to make such a showing, Ms. Garde has already done so.
The Commission has already_been presented i
with Ms. Garde's affidavit and representation agreement.
These documents plainly demonstrate that the information Ms. Garde I
received from her clients was only communicated to Ms. Garde in an attorney-client context.
Finally, the Staff questions the applicability of the
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attorney' work-product doctrine in light of Ms. Garde's 1
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=4 Representation Agreement which states that Ms. Garde's services to her client "do not include litigation" unless otherwise provided for. _This agreement is the_ manifestation of an understanding reached between Ms. Garde and her clients.
It was understood that the term " litigation" as used in this agreement,-
referred to actions in the courts or before other administrative tribunals.
Ms. Garde's' agreement included the "do(es] not include litigation"' provision to underscore _the fact that she was not representing her clients beyond_the-level of NRC proceedings.
The NRC rules (10 C.F.R. Part 2) and actions -('
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the present matter) suggest.that they construe Ms. Garde's representation of her clients before the NRC for the purpose of pursuing their allegations, to be in the nature of an adjudication.
Ms. Garde's agreement-clearly applies to the representation of her clients in NRC proceedings and-is therefore afforded the full protection of the attorney work product i
i doctrine.
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III. NRC STAFF HAS FAILED TO DEFEND THE CONDUCT OF MR. STELLO AND REGION IV The trustworthiness of Mr. Stello and Region IV to competently investigate allegations of workers and provide i
protection to those workers is clearly an issue relevant to Ms.
Garde's; Motion to quash Mr. Stello's subpoena, and to GAP's
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Petition pursuant to 10 C.F.R. S2.206 (Petition).'
The NRC Staff's position that ".
compliance with the subpoena would in no way compromise the health and safety of the public" (Staff'
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ij Answer at 4) is a_conclusioni void of' substance or' analysis.
The issue of trustworthiness and regulatory competence is a fact'ual one which was raised in our memorandum in:supportLof the Motion DTo Quash (Memorandum) and in GAP's Petition.
Our position _with respect _to the' competence'and trustworthiness of Mr..Stello_and Region IV has'been summed up as f ollows :-
r Mr. Stello's public and' private support of Region 1IV's worst offenders'and his failure lto take any corrective action regarding the agency employees-who have actively engaged in conduct that is a violation of
'NRC Regulations and practices is understandable only.if he:condonesfsuch activity.
As a. result of Mr. Stello's repeated failure-to demonstrate any-acknowledgement of the NRC's own regulations regarding the processing of allegations and interfacing with alleger,'while simultaneously being-the:de facto operative of the utility from which the workers need protection, requires that
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Garde]
comply with her professional obligation to her clients and protect them from Mr. Stello and Region IV.
Memorandum at 7.
. Neither Mr. Stello nor Region _IV can be expected to use any information to' protect the.public's health and safety.
In fact, it is likely'that:any information released to Mr. Stello on Region IV would' either be covered up or inappropriately shared.with STNP officials.
Id. at 13.
Furthermore, as we carefully articulated in our Petition, Region IV has had a history.of. misfeasance and j
malfeasance in which Mr. Stello has been a participant.
See Petition at 4-15.
Requiring Ms. Garde to submit potentially' significant information concerning'the safety of the STNPLto'Mr.
Stello or Region IV would result'in a-cover-up or an inadequate'
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investigation.
Any subsequent investigation,feven if properly;< 1 i
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I conducted, would be unlikely to find the serious safety problems 1
'because of the damage done by an improper investigation.
Additionally, the identities, and therefore the careers, of the clients involved would be placed in jeopardy, judging from past performances of Mr. Stello and Region IV.
The NRC Staff argues that " failure of the NRC to obtain the information could compromise public health and safety if the allegations raise health and safety. issues that are substantiated.". Staff Answer at 4.
However, the Staff's argument misses the point.
We agree that the NRC must review all l
allegations pertaining to the STNP.
In fact, it is clearly NRC's J
responsibility to do so.
The issue here is to whom should the' workers' allegations and information be released?
We.do not 1
understand the Staff's argument to mean that the information in i
question should be investigated by persons within the agency who j
lack the competence and commitment to take proper corrective j
action.
Both Mr. Stello and Region IV have received extraordinary criticism from sources within NRC as.well as-outside the agency, therefore calling into question their ability to protect the public health and safety.1/
IV.
AN EVIDENTIARY HEARING IS REQUIRED TO PROPERLY RESOLVE THIS MATTER As pointed out in their brief, it is the. Staff's position' 4
that there are factual issues regarding the applicability of the attorney-client privilege and work product doctrine to Ms.
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See generally, Petition at 4-15 and Appendicles G-M.
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' Garde's response to Mr. Stello's subpoena.
See Staff Answer at-
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The Staff suggests that-the-proper way toLresolve.any questions 11nvolving,Ms. Garde's attorney-client' relationships-
. would be to deposeLher.
Staff Answer at'10.
Regarding the applicability of'the attorney-client privilege and work prod'uct doctrine the Staff stated:
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The Commission would have to evaluate.the facts surrounding the creation of thel documents for which the privilege.is~ asserted, in order to' strike a balance between the need'for.information and the need to
. provide confidentiality of attorneys' files.. The facts forming.the'necessary prerequisite for such a determination.have not.yet been; developed; all that the-Commission has before. it are conclusory' statements of:
counsel.
(footnote omitted)
In conclusion, the Commission does;not have enough facts before it at this time to rule on' applicability J
of either the attorney-client privilege of.[ sic] the work product doctrine, and such: rulings'are. unnecessary
.to its' determination of the Motion.before'it..
Staff Answer at.11.
Contrary'to the Staff's. conclusions, sufficient information, not rebutted or: challenged'in'any substantive manner by the Staff, exists in Ms. Garde's affidavit' R
and' retainer agreement'for the' Commission to find that the attorney-client' privilege and work product doctrineLare applicable'here.
See discussion, supra, at 1-4.--
.The Staff's suggestion that Ms. Garde be deposed.in or'derJto 1y clarify her attorney-client relationships is clearly o
inappropriate.
Mr. Stello's authority does'not cover the y
investigation of the attorney-client relationship.
The subject of. the subpoena is information pertaining to'the safety of-the-STNP.
Furthermore, neither-Ms. Garde nor any of herLclients are i
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presently parties in any NRC proceedings relating to the STNP.
No case or authority we could find permits the deposition of an attorney regarding her attorney-client relationships.
i Should the Commission conclude that factual issues do exist, then an evidentiary hearing would be required.
Harvey at-907.
In order for the Commission to comply with the basic requirements of due process such a hearing must include the investigation of
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J all factual issues.
Ms. Garde must be permitted to call
- 1 witnesses and ask questions relevant to her defense.
The Staff's suggestion that Ms. Garde be deposed is completely unacceptable and inadequate.
See Staff Answer at 10.
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If a hearing is required, we recommend that the Commissioners assign the Atomic Safety and Licensing Board judge
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currently involved in the STNP licensing' proceedings to conduct the hearing.
The factual issues for the judge to rule on would be:
(1)
Are Mr. Stello and Region IV officials competent and sufficiently committed to' protecting the health and safety of the public to be permitted a role in the processing and review of worker allegations and i
information?
(2)
Does Ms. Garde have an attorney-client relationship with the individuals she represents?
(3)
If there information in Ms. Garde's possession protected from disclosure by the work product doctrine?.
(4)
If there is information protected by the work product doctrine, can the NRC S'taff establish that there are
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extraordinary circumstances which warrant.a waiver'of-
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the protection?.
Ms. Garde would'probably call Mr.; Stello, Mr. Martin, Ms.
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Connally, Mr. Hayes,.and othe'r NRC Headquarters and Region'IV-
'1 officials as witnesses'.2/
The testimony of.these witnesses-is
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.necessary to Ms. Garde's defense.
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'Rather'than deal with the complicated issues.inLthis' matter,
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- of which are issues of first impression for the Commission',
the Commissioners could resolve Ms. Garde's and GAP's concerns i
1 simplyLby providing'a special review team to review and' j
? investigate all. allegations pertaining to the STNP.-
The.NRC's.
'special.. cases unit is probably the most appropriat e mechanism the agency has for dealing with the prcblems at the STNP.
V.
CONCLUSION The-NRC Staff has not established that Ms. Garde's assertions'of attorney-client privilege'and/or, work product.
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'f doctrine are not sustainable.. In fact, Ms. Garde 1has-met her-
- j factual burden establishing-an. attorney-client phidilege.
relationship.by producing an affidavit'and copy,of'a' detailed'
-retainer agreement.
Fu'rthermore, the Staff' failed to even
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attempt to defend the actions'of Mr. Stello ands Region'IV.
.i officials against claims that they.are unable tol adequately
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By insisting'on an. appropriate hearingLbefore an.ASLB.judgek Ms.- Garde does not wai've her right to-insistjon a courtLissued ~
subpoena and the opportunity to present evidence, conduct'.
discovery,-'and hold a hearing on the Motion ~To: Quash to the extent:that an'~NRC hearing is inadequate.
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t investigate worker allegations.and protect the-public health'an'd safety.
For these reasons, the Commission should. quash the subpoena by.Mr. Stello of Ms. Billie Garde, and grant the Petition.
Respectfully submitted, Yb Y%
Anthony Z? Roisman 1401 New York Avenue N.W.
Suite 600 Washington, D.C. 20005 (202) 628-3500 Richard E. Condit.
David S. Rubinton GAP. Staff' Attorneys 1555 Connecticut Avenue N.W.
Suite 200-Washington,.D.C. 20036 (202) 232-8550 Dated:
June 25, 1987 069a01
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CERTIFICATE OF SERVICE I certify that a-copy of the foregoing document was served upon the addressees listed below.
Service" was accomplished by hand delivery on June 25, 1987.
NRC Commissioners:.
q, L.W.
Zech,.Jr.,. Chairman g\\
D Thomas M. Roberts 4((s/
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James K. Asselstine Fredtick M. Bernthal UffggOl98/A-QI Kenneth M. Carr 9 g' P*
j U.S. Nuclear Regulatory Commission
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~1717 H Street N.W.
jhy Washington, D.C.
20555 g
a Bill Paton, Esq.
U.S. NRC 1717 H Street N.W.
Washington, D.C.
20555 Secretary, U.S. NRC 1717 H Street N.W.
i Washington, D.C.
20555 1
i Jack R. Goldberg, Esq.
U.S. NRC 1717 H Street N.W.
Washington, D.C.
20555 Mary E. Wagner, Esq.
U.S. NRC 1717 H Street, N.W.
Washington, D.C.
20555 e
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1 David S. Rdbinton
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