ML20235F365

Util Response Opposing NRC Staff Motion to Rescind Protective Order.* Response Opposing Protective Order Guarding Confidentiality of Document Re Methodology of Bechtel Internal Audit Group

ML20235F365
Person / Time
Site:	Three Mile Island
Issue date:	09/23/1987
From:	Doris Lewis GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20235F323	List: ML20235F319 ML20235F365 ML20235F388
References
CIV-PEN, EA-84-137, NUDOCS 8709290065
Download: ML20235F365 (5)

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SeptebbNhcT3, 1987 UNITED STATES OF AMERICA StP 3 p2 d3

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NUCLEAR REGULATORY COMMISSION Before the Administrative Law Ju hih f;[f((*

EUk:+i In the Matter of )

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GPU Nuclear Corporation ) Docket No. 50-320 -68v E5^/

) EA-84-137 (Three Mile Island Nuclear )

Station, Unit No. 2) )

GPUN RESPONSE OPPOSING NRC STAFF MOTION TO RESCIND PROTECTIVE ORDER On August 12, 1987, with the agreement of the NRC Staff and GPUN, the Presiding Officer entered a Protective Order guarding the confidentiality.of a document relating to the methodology of the Bechtel Internal Audit Group in conducting confidential in-vestigations. The Order recited the claim that unlimited ditclo-sure of the document could have a potential adverse impact on the conduct of future investigations and recited the parties' cgrce-ment to the Protective Order "to avoid the necessity for resolu-tion of claims that the document is privileged and/or otherwise entitled to protection. . . ." The Staff now moves to rescind the protective order on the basis of an erroneous contention that Mr. Richardson, counsel for GPUN and Bechtel, misrepresented the nature of the document. The document has been identified as Exhibit 24 to the Hofmann Deposition.

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On behalf of its contractor,.GPUN respectfully submits that the Staff has misunderstood the basis on which Bechtel sought the subject Protective Order. In substance, the Staff argues that the public disclosure of Exhibit 24'cannot prejudice the future investigations.by'Bechtel's. Internal Audit Department because it does not constitute an official written policy of the Interndl Audit Department.1! The conclusion does not follow from the prem-ise. Secondly, and more importantly, the Protective Order does not disadvantage the Staff'in its preparation for trial, but i

the lifting of the Protective Order would substantially adversely affect Bechtel's investigations in matters unrelated to these proceedings.

1/' Contrary to the implication of the Staff's motion, it was never represented that Exhibit 24 was an official policy.

Rather, the document was described (in the proposed Protec-tive Order) as " relating to" the methodology of the Bechtel Internal Audit Group in conducting confidential investiga-tions. At the deposition, Mr. Richardson said it " set forth" the methodology of that group. (Tr. at p. 54.)

There.was not much further discussion of the document, be-cause Bechtel in the spirit of cooperation indicated its willingness to provide the document to the IIRC Staff (on the spot) subject to protecting the document fron public disclo-sure, and the NRC Staff eventual]y agreed.

2/ The NRC Staff's August 11, 1987 letter transmitting the pro-posed Protective Order to the Presiding Officer stated that the Staff was satisfied it would not be unduly hampered by the Protective Order. On September 22, 1987, counsel for GPUN (Mr. Lewis) spoke to counsel for the NRC Staff (Mr.

Berry) to inquire whether an underlying reason for the Staff's motion was some changed or unforeseen circumstance that caused the Protective Order to interfere with the Staff's trial preparation. Counsel for the Staff, however, indicated that the Staff was not hampered by the Protective Order and was not moving to rescind the Order on that basis.

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As ' explained'in the accompanying affidavit of Mr. Hofmann, E

Exhibit 24 represents techniques frequently used in the past and intended to.be used in the future in Bechtel's specia.1 investiga-tions. Specifically,. Exhibit 24 is.the typewritten notes which Mr. Cole, a former investigator in the Internal Audit Department, j took at one or more meetings at which he and Mr. Hofmann dis-cussed invest'igative techniques and methods which should general-ly be followed for-Internal Audit investigations. Hofmann 'Affi-n davit, 1 2. Although Mr. Hofmann disagrees with certain statements made in Exhibit 24, he nonetheless affirms that Exhibit 24 accurately. sets forth many'of the confidential tech-niques and methods which Mr. Hofmann and former Internal Audit investigators frequently used in the conduct of past special in-vestigations, which Mr. Hofmann currently uses, and which Mr.

Hofmann intends to continue to use on a regular basis in future special investigations.E/ Id. 1 3. Thus, the confidentiality of this document and the harm that would result should the Protec-tive Order be lifted-are readily apparent. The mere fact that Exhibit 2 is not "an official written policy of Bechtel" does not i

obviate the necessity for protection.S/  !

1 1/ At present, Mr. Hofmann is the only Internal Audit investi- l l

gator who conducts special investigations, i

1/ The Staff asserts at page 1 of its motion, "According to the '

[ uncontroverted sworn testimony of the Chief Auditor of l Bechtel's Internal Audit Department, the document in ques-l (Continued Next Page)

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x Mr 'Hofmann also explains how his current and future.inves-

~t ti.gations would be significantly impeded if this document became accessible to.the general' population of Bechtel's employees'or  !

the personnel of Bechtel's vendors,. contractors and clients.

This is the key point overlooked by the-Staff's motion. For-ex-ample, the information contained in Exhibit 24 would enable the subject of a special investigation.to circumvent or resist the-method of examination used during an interview of the subject.

In addition,.by informing a subject of the usual sequence of in-vestigative steps, Exhibit 24 would enhance the subject's ability to influence potential witnesses and otherwise limit his access

.to relevant evidence. Id. 1 4.

In sum, Bechtel stands to suffer substantial prejudice'if the' Staff is permitted to disseminate the subject document to persons who are not involved in the prosecution of this action.

By contrast, the Staff has not shown how the Protective Order (Continued) tion does not relate to the methodology by which Bechtel's Internal Audit Department conducts special investigations."

This assertion is inaccurate. Mr. Hofmann did not testify

'that the document does not relate to Bechtel's investigative methodology. Rather, he testified that unless he read the document in detail, he could not accurately answer whether all the paragraphs in the document describe how Bechtel in-vestigations are performed. Counsel for the NRC Staff did not accord Mr. Hofmann the time to review the document, but chose instead to pursue another line of examination. (Tr.

pp. 6-8, in camera session.)

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1 might; impede its-ability.to' prepare and present'its. claims at )

I trial, nor has it1 indicated whether it even intends to offer the I

. document in evidence at the hearing. The Protective Order does not prevent the Staff.from using the document for purposes-of these proceedings ~.

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By contrast, the proposal to lift the Protec-I tive Order provides no additional advantage to the Staff and will  !

i seriously jeopardize the conduct of Bechtel's.special investiga-tions and other confidential matters which are unrelated to these proceedings.

For the foregoing reasons, GPUN respectfully requests that the-Staff's. motion be denied.E!

Respectfully submitted, K. ..

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David R. Lewis Counsel for GPUN Dated: September 23, 1987 h/ The Staff's Motion includes (fn. 1) gratuitous comments relating to the rescheduling of Mr. Hofmann's deposition and its continuation on June 25 and August 20, 1987. The cir-cumstances of these events have already been addressed in Mr. Richardson's letter to Mr.. Berry of May 6, 1987, and during the depositions themselves (Tr. pp. 51, 206, 424),

and the record does not support the characterizations made by the Staff. However, the scheduling details of a now-completed deposition have no relevance to the issue raised by the Motion, viz., the need for a Protective Order for the j document in question. Accordingly, we do not discuss them l further.

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