ML20235H834
| ML20235H834 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 08/05/1987 |
| From: | Garde B GOVERNMENT ACCOUNTABILITY PROJECT |
| To: | |
| Shared Package | |
| ML20235H778 | List: |
| References | |
| FOIA-87-587 NUDOCS 8710010190 | |
| Download: ML20235H834 (98) | |
Text
_
l ORlGINAL UNITED STATES NUCLEAR REGULATORY COMMISSION
)
g IN THE MATTER OF:
DOCKET NO: 50-498 R
50-499 HOUSTON LIGHTING AND POWER COMPANY (South Texas Project) kl DEPOSITION OF BILLIE P. GARDE (Continued) 4 LOCATION:
BETHESDA, MARYIAND PAGES:
128 -
224 DATE:
WEDNESDAY, AUGUST 5, 1987 Y
lit A-81-581 ACE-FEDERAL REPORTERS, INC.
(
444 rth Ca Street Washington, D.C. 20001
~
8710010190 870929
.=
$CR31950.0 REE/sjg 128 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2
ORE THE ATOMIC SAFETY AND LICENSING BOARD 3
j i
- - - - - - - - - - - - - - - - - - -x 4
In the Matter of:
5 Docket No. 50-498 HOUSTON LIGHTING AND POWER COMPANY 50-499 6
(South Texas Project) 7 8
DEPOSITION OF BILLIE P. GARDE (Continued) f 9
Bethesda, Maryland 10 Wednesday, August 5, 1987
(,
Deposition of BILLIE P. GARDE, called for further exam-12 i
13 ination pursuant to agreement by counsel, at the United States Nuclear Regulatory. Commission, 7735 Old Georgetown Road, Room 14 6597, at 11:40 a.m. before REBECCA E. EYSTER, Court Reporter, when were present on behalf of the respective parties:
17 ANTHONY Z. ROISMAN, ESQ.
Law Offices of Anthony Z.
Roisman, P.C.
18 Suite 600 1401 New York Avenue, N.W.
19 Washington, D. C.
20005 On behalf of the Deponent.
20 21 RICHARD CONDIT, ESQ.
Government Accountability Project 22 25 E Street, N.W.
Washington, D. C.
20001 23 On behalf of the Deponent.
I-24
-- continued --
25 i
ACE-FEDERAL REPORTERS, INC.
202 347 3700 Nationwide Coverage 8(0 336-6646
s.
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129 1
APPEARANCES (Continued):
2 WILLIAM D..PATON, ESQ.
KARLA D.
SMITH, ESQ.
3 United States Nuclear-Regulatory Commission 4
Office of General Counsel Washington, D.
C.
20555 5
On behalf of the' Nuclear Regulatory Commission.
6 ALSO PRESENT:
7 8
JIM PIEROBON-9 J. R. WARGO 10 A. H. GUTTERMAN MARK NIERMANN g
PRASAD KADAMBI 12 l
(
13 14 4
15 16 17 18 19 20 21 22 23 I
24 25 ACE FEDERAL REPORTERS, INC.
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]
CONTENTS 2
WITNESS EX"AINATION 3
Billie P. Garde (Resumed) 4 by Ms. Smith 132 5
EXHI BITS 6
GARDE DEPOSITION NUMBER IDENTIFIED 7
Exhibit 16 150 Exhibit 16 Withdrawn 152 9
10 11 12 h
13 14 15 16 17 18 19 20 21 22 23-f.
24 25 ACE FEDERAL REPORTERS, INC.
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(
1; PROCEEDINGS t
2; Whereupon, 3:
BILLIE P. GARDE 4;
resumed the stand and, having been previously duly sworn, was 5f examined and testified further as follows:
1 6l MS. SMITH:
This is the continuation of the 1
7' deposition of Ms. Billie P. Garde, which the U.S. Nuclear 8d Regulatory Commission commenced on Monday, July 27, 1987.
t 9
Mr. Anthony Z.
Roisman represents Ms. Garde.
And your 10 cocounsel is Mr. Richard Condit.
I, Karla D. Smith, and 11 William Paton, attorneys for the Office of General Counsel, 12 represent the U.S. Nuclear Regulatory Commission.
13 I was informed that attorneys from the utility, q
14 Houston Lighting & Power, may also be present.
I 15 This deposition was open to the public at GAP's l
16 request.
The utility was not invited to attend by the 17 agency, but if they attend, it is because they requested to 18 attend.
The agency cannot preclude any persons, groups, 19 organizations, et cetera, from the deposition sinee it is 20 open to the public.
21 First we need to handle some preliminary matters.
22 I received your August 4, 1987 letter.
We l
23 requested that you bring the docket numbers of the Department i
24 of Labor cases, and I see those cases listed here along with i
25 the dates for some of them.
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-You also indicated in your deposition that you l.-
2]
l would give us.the docket numbers'for some tort cases.
Are 3
you'still planning to provide those?
.i
- 4 l THE WITNESS:
No.
5 }i, MS. SMITH:
Is there any particular reason why you L
l 6l won't provide the docket numbers of-the tort cases as you l
I
' ndicated on July 27th?
1 7j i
1' 8,
THE WITNESS: -Let me consult with my counsel.
i 9'l (Witness conferred with counsel.)
i 10 THE WITNESS ' After reviewing the record of all of.
11 the clients, we have no clients that are currently suing 12 Houston Light & Power or Ebasco in state-court on a tort, on
(.
i 13 l a tort that is responsive to the request.
That is why they 14 are not in there.
l 15 EXAMINATION (Continued) l 16 BY MS. SMITH:
l l
17 Q
So none of the tort cases -- is it correct to l
18 assume that none of the tort cases contain South Texas 19 allegations that were given to you by any of your clients?
l 20 A
Yes.
1 21 Q
All right.
22 MR. ROISMAN It is possible, and that is why in 23 the answer that you got last time, that some of these people, f
24 either ones who now have DOL cases or ones who for one reason l or another didn't go the DOL route, might bring a tort case.
25 1
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But there aren't any that are now on file so there aren't any 2'
docket numbers for any cases.
3 THE WITNESS:
That is correct.
4, BY MS. SMITH:
!5j Q.
The other matter was, we asked you to make a
,i 6y decision regarding turning over the retainer agreements, 7
including the dates with the names excised or turning over B j!
the dates of the retainer agreements, if all of the retainer 9 l agreements were identical.
ii 10l' I see here that you have provided various 11 agreements here, but I don't see any dates.
Are you planning 12 j to turn over the dates as you agreed to do on July 27th?
('
b 13 1 A
At this time we are only turning over what is 14 i attached to that letter, which is examples of the other types
,l 15 of retainers.
I don't recall that we agreed to turn over the 16 specific dates.
I think we agreed to look that over and give 17 you our decision, and our decision is that we are not giving 18 you the dates.
19 Q
That is correct.
That is correct.
20 Is there any particular reason why you won't turn 21 over the dates?
22 A
If you are asking me for my legal argument about 23 why I am not turning over the dates, I am not going to give
{
t 1
24 you that in this deposition.
But in the event that you go i
i 25 l
forward, we will write our brief when you write yours.
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1 Q
Have you received any allegations reference South f
I 2q Texas from nonclients?
l 3
A I answered that question last time.
4l Q
And that answer was?
5; A
Yes.
l 6l Q
What were those allegations that you received from l
7!
nonclients?
8 A
From nonclients?
9 :i 0
Yes.
il 10 y A
I am sorry.
I understood your question to be 11 ll 1
nonemployees.
12 Q
No, I said nonclients.
Have you received any
{'
13 allegations reference South Texas from nonclients?
i I
I 14 MR. ROISMAN:
Last time when we were having the l
l 15 deposition, as you remember, one of the answers that 16 Ms. Garde was going to give to one of the questions that 17 Mr. Paton asked was stopped.
And then we adjourned.
So we 18 did not have an opportunity to indicate to you, I.want;to 19 make that clear now, that there is a substantial amount of 20 documents as opposed to interviews or personal knowledge of I
21
.Ms. Garde that fall within the scope of this deposition and i
22 the subpoena, namely, that relate to the safety of the South l
23 Texas plant.
And that came to Ms. Garde in the form of l
l k
24 allegations regarding safety of the plant.
That did not come l
25 from clients.
l l
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And those documents, which are unrelated to the 2
question of the privilege, are in the process of being 3
assembled, and there are literally thousands of pages.
But i
4j they are not available because they have not been all 54 assembled from the various different places, since the files 1
6" that Ms. Garde has kept have been files related to the 7
clients that she has represented here.
8' This other information has had to be gathered from 9
a number of other files, not the clients files.
l 10 MS. SMITH:
Who has those documents?
d 11 C MR. ROISMAN:
Ms. Garde is in the process of I
12 assembling them and will be providing them to you but
(.
)
13 probably no sooner than the last week of this month.
But it 14 :i will be -- and the assembly of them is also an attempt to 15 divide them up so that they, that they are not just sort of a 16 '
pile of paper.
And that is going to take just a little bit 17 of time.
And it could be done sooner if it were not for 18 Ms. Garde's schedule, which makes that not possible to be 19 completed until the last week of the month.
20 MS. SMITH:
I just want to be clear.
These 21 ;
documents contain South Texas allegations that were obtained 22 from nonclients, or nonclients provided these documents?
i 23 MR. ROISMAN:
That is right.
They contain 24 allegations regarding safety problems at South Texas.
And l
25 they don't come from clients and are not in any way related li l
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to the representation of these 50-some-odd. people who 2i Ms. Garde has talked to you about before.
3.
MS. SMITH:
Can we go off the record for a i
4l seCond.
5h (Discussion off the record.)
a I
6 BY MS. SMITH:
7, Q
Are there any clients, to your knowledge, who have-8 waived the attorney-client privilege?
9 MR. ROISMAN:
Can you just be clear, you mean of q
l 10 l this group that we have been talking about, of the 11 50-some-odd --
12 MS. SMITH:
The 54 to 56 allegers, have any of
(
13 l those to your knowledge waived the attorney-clienc 1
14 d privilege?
4 15 THE WITNESS:
I don't understand the question.
I 16 don't -- are you asking me whether a client has called me up 17 and said, tell the NRC everything I know, or are you asking 18 me have they written me a letter that says this is a waiver 19 of my request for confidentiality?
I don't understand your 20 question.
l 21 BY MS. SMITH:
i 22 Q
Have they waived it either in writing or through 23 oral communications with someone else; did they tell the l
- l 24 information, the communications that you had with them, did i
25 they pass on that same information to someone else, to your i
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knowledge, either in writing or orally?
2 A
If you~are asking me if by their actions, have-3 people that>I represent conducted themselves or taken actions 4"
which could be coni.tdered a waiver of their attorney-client 5 !,
. privilege and, therefore, I should~ interpret my response by a
6 their actions, I would have to say no, because even if 4
o 7 j!
clients have themselves talked to the NRC, as some of them I
i 8
have, I don't consider that a waiver of.the attorney-client t
F 9
privilege that they have put me under regarding their.
10 ;
allegations now.
11,
As.to the first category, have-any of my clients i
12 i given me a written waiver saying go to the deposition and
{
.f 13 give them my information, the answer is no.
j 14 ;l Q
How many people did you or GAP communicate with i
15 reference the South Texas allegations that did not become 4
16 clients?. And you can give an approximate number.
17 A
I understand your question to mean how many people 18 is GAP claiming only work product privilege for; is that 19 correct?
20 Q
My question was, how many people did you or GAP 21 communicate with reference the allegations that didn't become 22 clients?
l 23 l MR. ROISKAN:
I think the problem she is having is i
24 that she has communicated with you and Mr. Paton and 25 j Mr. Stello and so she is trying to get a limit on the number ACE-FEDERAL REPORTERS, INC.
202 317 3?m Natiorinide Cmerage 800 33MM6
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l1j by coming at it the other way, which is of all the people 2i with whom she is claiming a privilege, are.you just asking i
3 for the number for whom the privilege is only the work 4'
. product privilege and not the work product and the 5
attorney-client privilege?
That better defines the audience 6l of people.
7i Otherwise it might bo 1000 people that she has 8!
communicated with about the allegations in one way or I
9 I another, including the three people I have just named.
And 10 that is what we are trying to find out.
11 Do you want to know how many of them she is 12 claiming the work product privilege for but not the
(
l 13 ;
attorney-client privilege for?
That is a finite number, and I
14 l I think she can answer that.
I 15 BY MS. SMITH:
16 Q
Okay.
We can start with the work product.
17 A
Well, I can't answer precisely, but I think it is 18 approximately 20.
I am going to have to give you 19 approximations on all my answers.
I didn't prepare for this 20 deposition by memorizing all my clients' names and their 21 categories.
So I am giving you my best guess or 22 approximates.
I 23 Q
And was there any reason why these people, these
(
24 20 or so, didn't become clients?
I 25 A
Well, I am not --
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1l (Witness conferred with counsel.)
2 'l THE WITNESS:
I am not going to answer that 3
question because it goes to what the communications were with the individuals, so I am not going to answer that question.
l 4'l; l
5 lt BY MS. SMITH:
I 6'
O What-is the basis for that?
7 A
I just said that.
I 8t MR. ROISMAN:
It is also not within the scope of I
9' anything that you could reasonably have a deposition on; why 10 someone doesn't become one of Ms. Garde's clients is not i
11 relevant to what we are here about.
If you were considering 12 making her a loan, that might be a relevant question.
(
13 BY MS. SMITH:
14 Q
Tor those clients who do not enter into written i
1 15 agreements and with whom you had oral agreements reflected in i
16 notes of telephone conversations or personal meetings, would i
17 you provide the portion of the notes reflecting the agreement 18 and the date of the agreement?
1 l
19 A
No.
20 Q
What is your reason for that?
I 21 A
It is the same reason.
I am not going to give you 22 the dates or copies of the actual retainers.
I don't think 23 you are entitled to them.
24 Q
Will you give us the portion that has the 25 agreement on it?
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No.
(
2/
Q And that. reason is?
31 A.
I don't want to turn this deposition into legal 4i oral argument.
I am not going to give it to you.
I believe I
5[
it is covered by my-attorney-client privilege.
.I 6[
.I am. familiar with the' body of cases that says 7
those external trappings may not ~ be, but there is also a body ii 8i of cases.that says when disclosure of information that would R
l i
9 ll otherwise contain or be the' external trappings is itself l
t 10 P substantive information, that information is protected.
I.
11 think that is properly dealt with in our briefs.
12 Q
I won't argue'with you, but I think we have the
{
(
13 right to know when you established these relationships --
j i
i 14 p A
I understand that you believe that.
4 I
15 Q
-- with your clients.
16 MR. ROISMAN:
I think what --
17 MS. SMITH:
We don't need to argue that now.
18 MR. ROISMAN:
I just,want you to understand that 19 by knowing the dates and having HL&P know the dates, all they 20 have to do is then go back to what happened in that one-or 21 two-day period immediately before the date, so the date does j
22 become a critical element in knowing who the alleger was.
23 And that is the problem.
('
24 If you want to -- if you want to get some sense of i
25 did you get any information from these people before they had Ace FEDERAL REPORTERS, INC.
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this agreement with you, I'can understand your' legitimate
{
2l interest in knowing that.
Was there a whole body of 3
information that preceded the privilege, you are certainly 1
4,!
entitled to find that out.
But if we have to start giving
!l i
5 you individual dates, then we feel that that can compromise 1
4 6 ll the desire of the client to not have his or her neane j
i y
7d revealed.
That is the concern.-
8, If you want to come at it a different way, we may 9J, be able to accommodate your concern without creating our l
- i 10 i!
problem.
I l
11 l BY MS. SMITH:
12 l Q
Paragraph 7 of the representation agreement, the
'h 13 !i l
one that is attached to the motion to quash -- here is a ll 1
14 '
copy -- says, "To the best of the client's knowledge, all of
- I 15 the information provided to GAP is known by STNP i,.
l 16 management" I
17 A
Wait a minute.
18 Q
Paragraph 7.
j 19 A
All right, I have it.
20 0
It says, "To the best of the client's knowledge, 21 all of the information provided to GAP.is known by STNP 22 management or has been raised through proper channels."
i 23 Did your clients provide that information to STNP l
24 management or raise it through the proper channels?
i 6
25 l
(Witness conferred with counsel.)
lI l
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1 MS. SMITH:
We can limit that to the South Texas 2
allegations information that they. told you.
Did they raise l
3 that to STNP management or through the proper channels as the 4}
representation agreement says?
e Sj THE WITNESS:
I think that there is a problem with-1 L
6[
the question.
I want to answer your question to the ability 1
L 7
that I can, but I don't want to give you any more informatimt 8
than is necessary to answer fairly narrowly, because,what I 4
9 h am afraid of is if I say,. yes, on January 12, client number 4-10 [
gave the information to SAFETEAM, it again leads to the F
11 '
identity of the client.
So I want to answer that question on i.
12 h what is, what this sentence means, but I am going to stop at l
b 13,
that point.
e 14 :
What this sentence means is that we make sure as F
15 part of how we do our debriefing or interviewing or 16 discussions that the clients are not sitting on something 17 unknown in any way, shape or form to their management,-that 18 they have fulfilled whatever duty they may have to try to do i
19 their job.
And if they haven't, we advise them to do so.
20 But in no case of our South Texas project, 54 that we are 21,
talking about, has there ever been an occasion, we have never 22 had to tell any of these 54, go back and file this f
23 l
information in some way.
They already had or have attempted
{
k 24 to file it within the proper channels or given it to i
25 management, their management in some way.
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BY MS SMITH:
.{
6 2;
Q.
And they also provided that same information to
-3,
you?
4:
A What information?
.j 5
Q The' South Texas allegations.
6l A
I don't understand your question.
t 7i MR. ROISMAN:.She wants to know if they gave you i
8 the same information that.they --
-9 BY MS. SMITH:
10 Q
That they'gave to STNP management.
11 A'
Do you mean did they give me the same document;-
12' for example, if they wrote a letter of complaint, did they
('
13[i give me that letter of complaint or did they tell me about 14
-their problem?
I 15 Q
Both.
16 A
'Both.
17 Q
Did they give you the same documents they gave 18 STNP management?
Did they tell you about the allegations and !
19 also did they tell STNP management those same allegations l
20 that they told you?
21 A
That is -- I don't want to answer the question as 22 you ask it because it is just getting into too much detail of 23 what my clients told me.
What my clients told me is i
t 24 generally what we are -- the area I am not going to get l
I l:
into.
And your question goes into that.
So I am not going 25 l
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to answer that question.
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I am not asking you for the substance of the l'
3' information.
I am asking you whether the same -- I am not 1
4 asking you what the allegations are but what they told you L
d 5 l.
regarding the South Texas allegations.
Did they also tell l
4:
o 6 ;;
STNP those same allegations?
H 7j A
I think I have answered the question.
d I
8*
MR. ROISMAN:
I think what is confusing is that il 90 the way you are wording the question it might sound as though 10 you are asking her, was she told with exactly the same i
11 written material and in exactly the same words exactly what i
12 d STNP was told.
And without knowing her answer to it, I would
{
- l 13 j assume that she probably doesn't know whether he was told 14.
exactly the same thing.
15 If what you are asking is, was the substance --
1 16 MS. SMITH:
Same subotance told.
That is what I i
17 am asking.
I am not saying, did they use the exact same 18 words with STNP that they used with you, but was the 19 substance of the allegations that they told STNP the same as 1
20 the substance they told you?
21 THE WITNESS:
I am not going to answer that 1
22 question.
I 23 MR. ROISMAN:
I need a clarification from you so
(
24 it is clear what it is she is not answering.
Do you mean the 25 substance in the same level of depth as they told STNP7 Or I
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do you mean, let's take a hypothetical, let's say that they 2
had gone to STNP and said Joe Smith is down there using the 3) wrong welding rods.
And then they go into a long discussion i
4 9 with STNP about what are the right welding rods and what the I
5h wrong ones are and how they know that Joe is doing it and so l'
d 6l forth.
STNP says, don't bother us with that, Joe is doing a 7
great job, go back to work.
And they come to Billie and they L
h 8
say, we tried to raise this problem about this guy down there 9;
using the wrong welding rods and they wouldn't listen to us l
10 and they were afraid to press it any further because we think
/
11 they will fire us if we try to make a big thing out of it but 12 l we think it is a dangerous situation.
l I
13,
She knows about this thing, but she may not know
)
14 the level of depth that they had the discussion, and the i
15 person who they originally raised it with may have been 16 substantially more sophisticated about welding and weld rod 17 materials than Billie.
And so the conversation could have i
18 been more wide-ranging and much deeper and so forth.
19 MS. SMITH:
I don't think the issue is the depth.
20 I think we are digressing a little bit talking about the 21 depth.
Basically was the topic that they talked about with 22 STNP, was that the same topic that they talked about with 23 Billie regarding allegations?
A 1
24 j' THE WITNESS:
I am not answering that question I
I 25,
because that goes to what my clients told me.
J h'
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MS. SMITH:
Okay.
.I j
2,l MR. ROISMAN:
Also, I want to'bh clear about that, i
3 about the line of questioning.
Ms. Garde is never going to 4l be a competent witness on the question of the allegations l
/
5I substantively.
In other words, she dor,s not' know of h,er own l
- s 6l knowledge very much about the safety of the STNF plant.
That i3
?
/
7j is why the whole idea of subpoenaing her to try" to get her to 8 ;i tell you what is known seems to us really diffir$lt.
I e
3 9 !
And the Gordian knot that needs to be got is the f
i 10 Gordian knot of how can the NRC accommodate this genuine 11 concern that they have someone they can trust'who is also k
- technically knowledgeable to talk to about these allegations 12 13 so that they can be properly investigated.
Anh when that day l
I 14 comes, as we believe it will some day, Ms. Garde's role will 15 be very minor.
It won't be to sit there and sayh wait a' 7
16 second, tha rod is made out of this material, it isisupposed 17 to be made out of that.
With all due respect to my client, 18 it is just not where her expertise lies.
She is not the one 19 who can really help you about that.
20 Even if she were to divulge to you these topics, 21 they wouldn't give you enough information to adequately 22 investigate the concerns that the topics deal with.
You must 23 have expert talk to expert.
k 24 And the experts are the pacele who have come to 25 her and said, help us find an expert in the NRC who will 1
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adequately investigate our' concerns, not endanger our jobs in-
.M j-the process and make sure that South Texas is built 2 q'l 3,
properly.
4i
'MS.' SMITH:
Have you tried to turn over-the l
Sl information to any group or person within.the NRC other than Region 4 or Victor Stello?
6l'
'7 l THE WITNESS:
Have I tried to turn the information i
8i over?
9
.MS. SMITH:
Yes.
10
.MR. ROISMAN:
Do you mean has she approached 11 another group'and said would you be willing to listen to
'12 this?
13 MS. SMITH:
Yes.
14 THE WITNESS:
Well, the only other group that I, 15 as I understand it, could take any information would be the 16 Office of Investigations directly.
And given the internal 17 review board, there is no way for OI to guarantee the 18 confidentiality concerns or the concerns about Region 4's 19 incounpetency because they have to immediately turn the 20 information back to the region for review of the technical 21 allegations.
22 So although normally I would consider OI an 23 alternative that has between Region 4 and OI done much better
[
24 in terms of guaranteeing people's confidentiality, in this l
25 case, given the internal review board, that isn't there l
i l
ACE FEDERAL REPORTERS, INC.
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31950.0 ree l
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1l
- anymore, j
j i
2l MR. ROISMAN:
You did mean in the question to try 3
to -- you didn't mean, we have a 2206 petition that we j
l i
4 jI submitted to the agency and that is an attempt to give it to j
5l somebody, namely an independent investigative group, but you l
6' meant something --
I 7!
MS. SMITH:
Something other than that, or some I
8 group or person other than an independent investigation
{
l 9;I group.
10 THE WITNESS:
I am anxious for a competent 11,
independent group within the NRC to take this information.
i 12 '
If you want to give me Mr. Calvo, Jay Harrison from Region 3,
(
13 q a number of people from Region 2, somebody from Region 1 that h
Il 14 l have track records of going to the mat and defending people l
15 and are competent to do investigations, then I want to go 16 back to my clients and say, I have an experience with this 17 person.
I know this person is not going to identify you and 18 he is going to do a competent investigation.
You may not j
l 19 agree with his results, but that is a different question than l
20 whether or not he is a competent NRC inspector to do an i
l 1
21 investigation of their concerns.
I I
22 I haven't got anybody else to ask.
That is what 23 the letter to Stello and the attempts to contact the EDO were 24 all about.
And they were rejected.
BY MS. SMITH:
25 P
1 ace. FEDERAL REPORTERS, lNC.
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31950.0, ree.
3 149 1,
O Did all your clients indicate that they didn't
(:.
2 5 want_ Victor Stello to investigate the allegations?
Did each' 3
and.every one of those 54 to 56 indicate.to you that they.
4 jl!- didn't want Victor Stello investigating the allegations that 1
5 they provided to you?
6l A
There may be an exception, but I can't think of
'7' one right off the top of my head.
8l Q
And did GAP suggest that to the clients?
9 A
If you think Mr. Ste11o's reputation is not known-10 among the work force in this country, you.are wrong.
11 Q
Do all your clients know that you were subpoenaed 12 and that you are. participating in a deposition and that you k
13 g are withholding their names and allegations that they II 14 ;i provided?
I 15 A
Except for the ones that I cannot and have not 16 been able to get ahold of, that I had attorney-client 17 relationships with that I am maintaining, I haven't contacted 18 those.
I have attempted to contact everybody.
There is a 19 small class of people that have inoved on and I haven't been 20 able to find them within the 54.
Does that answer your 21 question?
22 Q
Yes.
23 Did you ever file a complaint that was not
(
24 authorized by a client?
.i l
25 A
No.
ACE. FEDERAL REPORTERS, INC, ye.m-rm Nanonmae cmnan sn33wu6 w--_-___.__._._
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150 t
1A Q
Did you ever have a client by the name of Charlie l -(
i 2:
Jones?
i
'3 l A
Before I. answer that question, I want to talk to 4
Tony.
5 Q
Okay.
I 6'
(Witness conferred with counsel.)
l 7j MR. ROISMAN:
Do you want to ask the question 8'
again?
9 BY MS. SMITH:
l 10 Q
Are you familiar with a Mr. Charlie Jones?
11 A
Yes.
12 Q
I would like to have this marked as Deposition f'
13 ;
Exhibit 16.
I' 14l' (Garde Exhibit 16 identified.)
I 15 XR. ROISMAN:
Can we have a copy?
16 MS. SMITH:
Uh-huh.
17 BY MS. SMITH:
18 Q
If you will refer to the narrative, which is the 19 third page, have you ever seen this letter before?
20 A
I have seen the letter.
I have not seen the 21 narrative.
22 Q
The narrative was not attached to the letter you i
l 23 received?
l
(
24 A
The Department of Labor never releases the 25 narratives.
l I
ACE-FEDERAL REPORTERS, INC.
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!31950.0' ree 151 d
1 Q
Would you --
2.,
MR. ROISMAN:
Do you have authorization for it to 1
3' l be released?
This is now a public deposition, j
4 l,
'THE WITNESS:
I would like the record to reflect l
5[
that Department of Labor's policy is that they fight tooth i
6l and nail the release of any narrative on~any investigation on 1
7, any of their information, although I am not one bit surprised i
8, that Mr. Perez would release this narrative.
I i
9 MR. PATON:
Could I see this narrative?
Thanks.
10 MS. SMITH:
All right.
We will come back to this 11 and proceed on.
12 THE WITNESS:
I want you to say something about f.
13 g what'we had just talked about'on the record.
I have talked 34 to my counsel about this situation, and I think that you need i
15 to have something on the record that explains a problem with 16 it.
17-MR. ROISMAN:
First of all, I want to understand, 18 Mr. Paton seems to be running around the room picking up 19 copies of this document, which you just marked as an exhibit, 20 which contains in it information that DOL is in the habit of 21 keeping confidential.
Am I to understand that at this point l
22 you are withdrawing it from the public record?
l 1
l 23 MS. SMITH:
I will withdraw it for now and I will l f 24 take my copy back.
I 25 MR. ROISMAN:
Mr. Paton already did that.
I i
ace-FEDERAL REPORTERS, INC.
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MS. SMITH:
Fine.
(
2l MR. ROISMAN I want the record to be clear that 3:
at least for-some minutes of time this document, which is 4l probably not ever to have been made public under DOL 5j procedures, was in fact public at this table, visible by b
6' anybody who chose to take a look at it, including the court 7l reporter, myself, Ms. Garde, Mr. Condit and any of the other 8
people in the room, and that if the document has already been 9
made public, it was made public not by us but by you.
I want 10 that to be quite clear on the record so that there will be no 11 question about it.
i Secondly --
12 l
(
13 l MS. SMITH:
I withdraw the exhibit from the i
14 :
record.
15 (Garde Exhibit 16 withdrawn.)
16 MR. ROISMAN:
How many copies of the exhibit did 17 you bring in the room with you?
18 THE WITNESS:
Three, I see.
19 MR. ROISMAN:
Do you know?
20 MS. SMITH:
Three.
21 MR. ROISMAN:
And can we see the three now?
22 MS. SMITH:
What relevance does this have to 23 anything?
l
(
24 MR. ROISMAN:
Since Mr. Perez is in the habit of i
25 witchhunting on GAP, it is important for us to know that
[
ACE FEDERAL REPORTERS, INC.
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i 31950.0 ree 153 g
1, there is no one who thinks that any one of these documents is 2
out of this room, that it got out of this room as a result of 3'
any representative of GAP.
So I want to verify on the record 4j that all the copies of the document have now come back into 5h the possession of the NRC, that when we left the room, l
C' Ms. Garde and I and Mr. Condit, to discuss the question that 7 'I led up to your making this an exhibit, we did not have a copy 8
of the document with us, that the only copy of the document i
9l which we ever had in our possession was one that you handed 10 l i
to us and which Mr. Paton asked me to hand back and which I
^-
11 l did hand back.
And thus that if these copies get out into l
12I the public domain, they must have gotten out through
(
13 j someplace other than GAP or GAP representatives or Ms. Garde i
14 :,
or Ms. Garde's representatives at this meeting.
i' MS. SMITH:
I have all the copies back.
15 16 MR. ROISMAN:
Can you verify for the record that 17 they --
18 MS. SMITH:
I verify for the record that I have 19 all of the copies back.
20 MR. ROISMAN:
And that there is no way that any 21 copies could have been made of any of these copies from the 22 time that you put them in the public record a few noments 23 ago?
(
24 MS. SMITH:
They could not have been made from the a
I I
25 copies that I had.
i h
ACE-FEDERAL REPORTERS, INC.
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MR. ROISMAN:
All right.
(
2]
MS. SMITH:
I also note for the record that the 31 documents were on the table for less than a minute and nobody 4l would have had an opportunity to read over the document.
5 MR. ROISMAN:
I hope that is correct.
I looked 6 '1 over the document within that one minute and so did Ms. Garde 7
at your request.
8 BY MS. SMITH:
l 9h Q
Did you promise each of the 54 to 56 allegers that 10 you would not reveal their identities?
11 MR. ROISMAN:
I think there is a confusion in the 12 question there.
Do you want her to separate out the ones who
(
13 l have attorney-client relationship or the ones who she has 11 14 p only the work product privilege with respect to and answer i
15 the question in those two parts?
It is easier for purposes 16 of the answer to keep those two groups of people separate.
17 BY MS. SMITH:
18 Q
You can answer it together.
19 A
No, I can't answer it together.
As a matter of 20 practice, attorneys at GAP make very clear to the individuals 21 that we are talking to that we will keep the information 22 confidential.
If it is an attorney-client relationship, that 23 is established almost immediately.
If it is not an
(
24 attorney-client relationship and the information gathered in t
25 the course of an investigation to do whatever investigation, h
ACE-FEDERAL REPORTERS. INC.
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m.w.rm wionmiae coserage mu33uus I.
31950.0, ree 155 1.
whether it is an individual's investigation or some other
{-
l 2q form of the investigation, that is still the preliminary item 3j that we talk about.
4 So on the basis of our practice, I would say, 5
yes.
I can't answer that off the top of my head specifically i
6[
as to each and every one of the 54 people, because in some 7!
cases I wasn't the person who talked to them first.
But in 8l other cases, I was.
So that is the only way I can answer the i
9l question.
10 0
And your basis for withholding their identities is 11 because of what?
12 A
I can't answer that as to the whole.
i 13,
O If you want to separate them --
l 1
l 14 j A
As to people that we have an attorney-client i
15 privilege with, an attorney-client relationship with, I am 16 not giving you the identities either directly at their 17 request -- well, strike that.
18 As to the group of people who have filed public 19 complaints, I have told you that you can find their 20 information in the Department of Labor files because the NRC 21 is copied on those documents.
And those individuals 22 understand as a part of the procedure that they are going to 23 have to get into litigation and their identities are going to f
5 24 be known.
i However, some of those people have also instructed 25 i
I i'
ace-FEDERAL REPORTERS, INC.
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l31950'.0, ree 156 o
y 11 me not to provide any of their substantive information to the' I
2j-;
Nuclear Regulatory Commission.
So that is another track that
.i J'
'3 j we would have to or you would have to embark upon.
4' Q-Those-ones that weren't. DOL, that didn't file the 5
DOL complaints, now, why.are you withholding those-2 6'
identities?
7, A
I haven't, I told'you exactly where to find them.
i 8!
You should know that already.
9 BY MS. SMITH:
10 Q
The non-DOL?
11 A
The non-Department of Labor individuals fall'into 12 either attorney-client relationship, and they specifically do.
(
l 13 l not want their names or identities known to the NRC, or to
'14f th'e utility, or they are individuals who have given me 15 information in the context of an investigation on the basis 16 of their reliance on my keeping their identities 17 confidential.
Everybody falls into one of those two 18 categories.
l 19 Q
If any parts of your conversations with the 20 allegers did not concern legal advice but concerned the South 21 Texas allegations, would you state the substance of those 22 conversations?
)
23 MR. ROISMAN:
There is a problem with that.
f 24 THE WITNESS:
Yes.
25 MR. ROISMAN:
There is no way to separate out what i
ace. FEDERAL REPORTERS, INC.
l 202 347 3'00 Nationwide Coserage 8043%MM
t 31950.0 ree 157 l'!
you call legal advice from these conversations.
They are all 2:
part and parcel of one indivisible whole.
3 j.
Once an attorney has a relationship with a client, 4l everything is part and parcel of legal advice, gathering 5
information, giving of advice, probing questions _ asked to 6'l make sure the advice is sound.
Your question presupposes a 7
world that doesn't exist.
So there is no way that'Ms. Garde 1
I 8i could answer that question.
It is a question that is an I
9 unreal situation.
I 10 BY MS. SMITH:
11 Q
So it is your position that all of the 12 communications you had with them was encompassed within legal
(.
13 advice?
14 A
I think you are asking me part of what really is i
15 legal argument.
If you are asking me what my clients told 16 me, I am not going to answer that.
If you are asking me what 17 I told-my clients, I am not going to answer that.
18 Encompassed in that, and intertwined and 19 intermingled in why they are talking to me in the first 20 place, is legal advice and information told to an attorney 21 seeking legal advice for those that are attorney-client 22 privilege.
23 For those that are only work product privilege, it i i
24 is information that was given to me in the context of doing 25 an investigation.
And that information is not -- I am not I
i ACE FEDERAL REPORTERS, INC.
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. going.to'give you-either.
i 2~
. Q-Because, the reason is?
)
-3 A
.I just said what the reason was.
l 4;
(Witness conferred'with counsel.)
i
- 5 !,
MR. ROISMAN:
I want to go back to the question:
a j
6 that precedes the one'that you have got on the table, which l
7.
is why won't;she.
d
'l 8i MS. SMITH:
Which was what?
9' MR. ROISMAN:
Why won't she give you the' answer, l
1 10 and get back to the objection itself.
I think that if'you
{
1 11 wish, she can clarify for you by at least letting you know j
1 12 l what the conversations generically consist _ of between her and
(.
1 13 ;i the_ client instead of using buzz words.like was it; legal
'j 14 ;
' advice or was it, you know, but to give.you a better sense of 15 what the conversation was.. And with excluding probably such l
16 questions as can you tell me where the ladies' room is or do 17 you want to go to lunch, help you understand what it is that 18 was transpiring between'Ms. Garde and these clients so you 19 will understand better what we are saying the privilege 20 attaches to.
Would that be helpful?
21 MS. SMITH:
I am interested in knowing what legal 1
22 basis -- what is the legal basis for why she is not turning I
23 that information over.
If that addresses that, then, yes, T.
24 want to know that.
25 MR. ROISMAN:
I think it does.
Because if you i
l Ace-FEDERAL REPORTERS, INC.
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L31950.0 ree q
159 1 f understand what the phrase that,you just used, that 2l information is, I think it would be. helpful for you to i
L j~
L L
3 understand what that information is as generically described, 4l and then she can explain to you why that information cannot 5
be turned over because.of her attorney-client relationship.-
l 6
MS. SMITH:
If she wants to give me:the legal 7
basis ~ for it, fine.
8 (Witness conferred with counsel.)
9 MS. SMITH:
I think I am clear on her answer.
I 10 think the reason she has said that she is not-turning it over 11 is because of the attorney-client privilege, which is why she 12 will not give us the identities of the allegers.
k 13 MR..ROISMAN:
But I think you had gone beyond, we 14 :l were past identities of the allegers and into the category of l
15 information provided by allegers.
That was the area of 16 questioning we were now in.
She has told you that she won't 17 give you the identities of-the allegers who were clients l
18 because they have asked that their identities not be given.
j i
19 She has told you she won't give you the identities 20 of nonclient allegers, because to get the information that i
21 they have in order to provide this support for her case for j
22 her clients, she has to assure them that she will not divulge 23 their names, else they will not be helpful and they will not 24 support her case on behalf of these other individuals by 25 leading here her to trails of information that she needs to ace. FEDERAL REPORTERS, INC.
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31950.0i ree 160 1j represent them adequately.
(-
I I thought you had gone past that and now you are 2
3 asking what is the information that is being transmitted 4j between you and these clients and will you turn that over to 5
us, and if not, why not.
That was that whole line of h
questioning about legal advice, as I understand it.
6[d MS. SMITH:
I asked for the information that was i
4 l'
8L not legal advice, and she told me she was not going to turn i
i 9j that over.
10 MR. ROISMAN:
I don't think she said that.
What 11 she said was that it is all legal advice in one way or that 12 the question that you asked is not a meaningful question.
j 13 'd' MS. SMITH:
All right.
i 14 MR. ROISMAN:
And what I was going to have her do l
15 is to explain what these conversations consist of and why 16 this label " legal advice" doesn't fit very well into it.
17 MS, SMITH:
You mean why it does fit within legal 18 advice?
19 MR. ROISMAN:
No, why using the label " legal 20 advice" is sort of -- is an inartful phrase for purposes of 21 what is actually transpiring.
)
i 22 MS. SMITH:
I don't think that is going to be real i
23 helpful.
4 t
24 THE WITNESS:
Fine.
We don't have to --
1 I
25 MS. SMITH:
We will move on to the next question.
i ace. FEDERAL REPORTERS, INC.
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BY MS. SMITH:
l 2
Q Do you believe it is necessary to be an attorney 3
to obtain information from the workers and try to negotiate 4
with the NRC to prevent the issues framt being handled-by l
i 5 ij Stello and Regi'on 4?
Do you feel it is necessary to be an n
6 [t attorney to do that?'
l I
7l A
I think you have to be able to have a I
l 81 representation agreement.
I was protecting workers in the I
i 9!
context of NRC proceedings before I was an attorney, and I am 10 aware of other people that are doing that.
But I think you l
11 have to be acting as an attorney.
12 Q
So the answer to your question is, to my question f.
-13 then, is yes?
You believe you have to be an attorney to t
14 obtain information from workers?
I' 15 A
Being an attorney implies that you went to law 16 school and that you have passed the bar.
Okay?
My answer l'
17 was, you have to be acting in the capacity of an attorney, 18 which may be a paralegal, may be an intervenor acting as a 19 representative of a worker, it may be any type of 20 representative that is acting in the role of an attorney.
I l
21 don't think you have to be an attorney.
1 I
22 Q
So your answer is, you have to be a 23 representative?
24 A
You have to be acting in the role of an attorney l
25 or a personal representative.
I j!
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1!
Q But a paralegal isn't an attorney?
l 2,
MR. ROISMAN:
Are you familiar with the concept of i
3]
someone working under the control and guidance of an 4 'i attorney?
5 MS. SMITH:
Yes.
i 6'
MR. ROISMAN:
That is what we usually call l
7; paralegels in the private practice of law.
Investigators, 8
paralegals, administrative assistants, all of whom operate 9 !
under the direct control of an attorney and act as that 10 attorney's agent for purposes of gathering information.
11 BY MS. SMITH:
12 Q
So you are saying then that if you weren't an
(
13 l; attorney doing that, then you would have to be someone acting 14 under an attorney?
15 A
Well, that is the delineation that Mr. Roisman was 16 just -- just made in clarification, but I think that my 17 answer was a little broader.
18 I will give you a completely hypothetical -- if t
19 someone who was not an~ attorney, who had a shingle outside 20 his door that said he was an attorney and he was a complete 21 shame, had an attorney-client relationship as he represented 22 with a person, went to the NRC and negotiated, it later turns l l
23 out he is not an attorney, because that client relied on that k.
24 person being an attorney and acting as an attorney, that i
I 25 attorney-client relationship still is alive.
1 I
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-ree 1
there.
The first part of your question is, do you have to be
{
2d an attorney to obtain information from workers.
That is no.
3.;
The answer to that is no, I don't believe you have to be.
i 4;
The second part is, to negotiate with the agency?
5, BY MS. SMITH:
i Q
'Right.
To not turn over the issues to Region 4 6'I 7!
and Mr. Stello.
8-A The second part of it is do you have to be an 9 ll attorney to negotiate with the NRC.
No.
This agency 1
10 i probably has more interaction with citizen interveners than 11 ;
any agency in the government.
You don't have to be an i
12 attorney to negotiate with the NRC.
('
13 j The third part of your question is, do you have to I
14 j be an attorney to negotiate with the agency about keeping i
15 I information from Region 4 and Mr. Stello.
No, a Congressman l
16 could do that, anybody could do that.
And I think anyone has 17 a right to do that.
So I don't -- if you break the question 18 up, it i.s no; if you put it altogether, it.is.still no.
i 19 Q
What documents reference the South Texas 20 allegations were given to you by your clients?
21 A
Obviously we are talking about 54 different Il 22 people, and within those 54 different people there is i
L 23 obviously different sets of circumstances and different b
ll i 24 documents that have been either created or provided.
But as 25 a general rule, within each person's file, if you will, there t
l b
/\\CE. FEDERAL REPORTERS, INC.
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1i are attorney-client correspondence documents, information b
2d that was given to us by the client or letters to the client f
)
3j from us, information provided to us with markings and letters
]
4l and descriptions on things like that.
There is work product 5
material that is notes that we prepared, summaries of 6'
allegations, lists of allegations.
7, O
Let me just stop you right there.
My question f
8 !
was, what documents were given to you.
I i
A I am describing the answer.
9 L
'i 10 i
Q Work product documents were given to you?
11,
A I am describing what is in the file.
I think that
}
12) that is the complete answer to your question.
And I want to k
I 13j answer it that way.
If you don't want me to answer it that 14 l.
way, then I mean, I suppose you could interrupt me, but I l'
i 15 would like to finish my answer, because I am trying to answer 16 your question completely.
17 MR. ROISMAN:
We thought it would be helpful if 18 you had an understanding of the classes, you understand none 19 of the documents are being turned over at this point, the 20 ones that are within the clients files, but for you to 21 understand the classes of the documents and some of them are l
22 a little broader than your question, but this seemed like an I
23 appropriate time to do that.
(
24 Then once you have heard the classes of the 25 documents, you may then want to ask about particular, IIi ACE FEDERAL REPORTERS, INC.
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particular ones'of those classes.
But that is a way to talk
-{
2 about them instead of talking about them as though they are 3,
all one.
4j BY MS. SMITH:
d 5"
Q I would first like to hear about the documents 6l that were given to you by your clients.
Can you describe 7
those?
8 A
We have described attorney-client privilege i
9I documents, the work product documents, and then there is 10 another category of documents that is neither attorney-client 11 '
nor work product documents that we are not turning over 12 :
because either it isn't responsive to the subpoena, if it had
('
i 13 l something to do with safety, or because its disclosure to you d
14 /
will, by giving it to the NRC, identify the individual or the 4
i 15 client involved or his or her concern in a manner that is j
16 detrimental to that client.
i 17 Q
By that, do you mean their identities could be f
l 18 disclosed?
j l
J 19 A
In some cases.
20 Q
What else do you mean by that last statement you 21 made?
22 A
Do you want an arample?
s 23 Q
All right.
24 A
If someone gives me a nonconformance report that 25 he believes has been improperly dispositioned, gives me his 1
ACE. FEDERAL REPORTERS, INC.
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copy of'it, it is going to have his name on it as th'e quality l: K 2d control 1 inspector.
If-I give that document to the NRC) it i
-3j does two things:
First, itL tips-off the NRC.to that person's 4f identity; even if you just took everybody's name that is on-l a
5!
the;NCR.in that package of documents, you narrow the class l
6 probably, reasonably to one, one of those individuals.
7 Second, it is detrimental to the client because 8l the information was given to us to ensure that it was 9
properly resolved.. It is our belief, the reason that we are 10 here, that giving that information to the hands of Region 4 11 is like giving-it to the utility.
And at that point what can 12 happen _is that -- and what has happened in the past, and 13 there is a long record of it -- is that the utility can go l-i 14 j and make fairly knee jerk repairs, modifications or changes j
.I
-15 without creating the required documentation, if it is 1
16 required, and at the time that the NRC writes up its 17 inspection report, which is I am sure long after the exchange 18 of information occurs, that problem has been resolved.
The 19 resolution may or may not be in compliance with NRC 20 regulations.
21 The result of it is it makes my client look as if 22 he was substantively wrong about his allegation, and the NRC l
I 23 rubber stamps that conclusion.
That is very much to his or
-(
24 her detriment.
25 The other problem with handing over those types of i
ACE. FEDERAL REPORTERS, INC.
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documents is that my clients believe that the problem will'be
(~
2 !
covered up.
Therefore, it will never turn into deficiency 3.
paper.
If they,-in fact, confirm the deficiency, it will 4
never be tracked, it will never be trended.
It never will be 5l analyzed for what it means to the rest of the plant, j
t 6l So turning over those documents that are not l
7L necessarily attorney-client documents is definitely to his 8
detriment, given the working situation that we have at Region i9' 4.
ll 10 [
Q Under what circumstances were the documents 11,
created for which you claim the work product doctrine?
i 12 l A
It is a wide variety of documents.
I mean in some 13 cases it may be copies of deficiency paper.
In some cases it i
14 I may be copies of memorandum.
Some cases it may be copies of I
l 15 diagrams or charts.
Just a wide variety of material.
l l
16 (Witness conferred with counsel.)
17 BY MS. SMITH:
18 Q
My previous question had to do with work product.
19 A
I didn't understand the question.
20 Q
Under what circumstances were the documents l
21 created for which you claimed the work product privilege?
22 A
My last answer went to what type of documents were ll l
I 23 contained in the class that I said was not work product.
l l
(
24 Q
My question went to work product.
l l
25 A
I know.
But I am just clarifying for the record i
N
[-
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what'my answer went to.
j 2,
Q Okay.
i 3j A
Okay.
Now, your question is'what documents 4
comprise work product?
5 Q
No.
Under what circumstances were the documents i
I 6
created for which you claim work product or which you claim l
7, are covered under the work product doctrine; under what 8
circumstances were they created?
i 9i A
In the course of analyzing, creating of notes, i
10 basically in the initial contacts, analyzing the information-11 given to us by the clients, preparing ma=nrandums, either to j
12 Richard or to the file, or Richard to me, or the investigator
(
13 ;
to Richard or I, classifying the information in terms of j
i 14 allegation numbers and the type of allegation it is and 15 developing that information, writing up what the information 16 means, in preparation for a clear picture of what this 17 particular client's situation is, what are his concerns, what l
18 happened to him, what are the facts and circumstances that 19 surround that, what are the details surrounding this event or ~
t 20 that concern and preparing all.that in a way that we can 21 analyze is the best course of action for that client to take 22 regarding whatever his concerns are.
23 His concern may be, I was harassed, intimidated 1
h 24 and driven off the site for falsifying records which I didn't 25 do, someone else did.
We have got to conduct our own l
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investigation, review that material, and that is the type of
.g L
2i thing that is contained in the work product.
i 3I Just a minute.
I might be missing a category.
4 (Witness conferred with counsel.)
5 THE WITNESS:
There is -- my counsel has basically 6!
pointed out something that wasn't clear because of the two I
i 7l answers.
My last answer also should_have included the class i
8i of documents that I described previously in answer to the 9
work product question.
To the extent that information was 10 created by the utility, given to people that we interviewed 11 in the course of doing our investigation, and is incorporated 12 in the part of our; files that is basically the analysis of a L
13 person's concerns, if they are in those files, they are also i
14 work product.
I 15 And those information may have been created by 4
16 Ebasco, given to HL&P, concern a particular issue or item, 17 and was gathered by us in the course of our investigation, 18 occasionally from people that we do not have an 19 attorney-client privilege with but we do have a work product 20 privilege with.
21 So if you would sit down and look at our work 22 product files, you would find some of those documents also.
23 BY MS. SMITH:
(
24 Q
For how many of the 54 to 56 allegers are there 25 work product documents, approximately?
l 1
/\\CE. FEDERAL REPORTERS, INC.
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A I think almost all.
2i 0
Work product documents that apply to all of the 54 1
3" to 56 allegers?
4l A
Again, I may stand corrected if I had all the l
l 5l files right in front of me, but I think that there are work I
6'I product documents as to almost everybody.
7 Q
Can you --
i 8
MR. ROISMAN:
I am a little unclear about the 9
question, when you say "as applied to everyone," of this 54, 10 sometL'.ng like 34 are clients and 20 are nonclient allegers.
11 I think Ms. Garde was answering the question as though you 12 were asking did you receive from those 54 people, whether 13 j clients or not clients, documents with respect to which you 14 '
claim work product privilege.
But I think that maybe the i
15 question you were trying to ask is, do you claim work product 16 with respect to each of those 54 people.
17 MS. SMITH:
That is right.
18 MR. ROISMAN:
It was whether each person, do you 19 claim a work product privilege on behalf of that person?
20 MS. SMITH:
That is right.
21 MR. ROISMAN:
Not whether each of them happen to 22 give you documents about which you are claiming a work 23 product maybe for another person?
Am I correct?
(
24 MS. SMITH:
Right.
Are you claiming a work l
25 product privilege as to each of those 54 to 567 i
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1.
(Witness conferred with counsel.)
]
f 1
2i THE WITNESS:
Would you ask the question again?
)
l 3l BY MS. SMITH:
4l 0
Are you claiming the work product privilege as to l
5l each'of the 54 to 56 allegers, and that would encompass I
1 6'
documents?
7, A
For the class of people that I do not have an i
8!
attorney-client relationship with that I am not giving you 9
information under the work product privilege, as to that 10 class of individuals, there is information that has been i
11 given by.them.
For the most part, that information is in the 12 work product files of the attorney-client clients.
Do you
('
13 understand what I am saying?
I 14 l Q
No.
I don't.
l I
i 15 A
Tom Smith files a Department of Labor complaint.
I 1
i 16 We do an investigation.
In the course of doing the t
17 investigation, we interview seven people.
Of those seven i
i 18 people, two or three of them send me documents which support I
19 Tom Smith's allegations and concerns.
I am not giving you 20 that information because they are in the work product files 21 of Tom Smith.
They are in the files of the information I I
22 collected in the course of doing my investigation so I could 1
23 accurately and adequately advise Tom Smith how to proceed on l
t I
(
24 that issue.
1 25 I may get a document from Tom Smith's boss, which I
I l,
ace-FEDERAL REPORTERS. INC.
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I contacted in the course of my investigation, who said Tom 2
Smith is completely all wet on this issue.
He is wrong.
I 3
know he thinks he is right but he is wrong.
And I am going 4 !
to send you the document that shows he is wrong.
d 5y He sends me a document.
I read it.
I advise Tom 6[
Smith, Tom, you got a great case.
This item is a loser, 7'
forget it.
That document would be in Tom Smith's work 8
product file.
It is information I gathered in the course of 0
9; my work to advise Tom Smith on how to proceed with his case.
10 lq Does that answer your question?
11 Q
No.
I 12 A
Okay.
b b
13 g Q
Are you asserting the work product privilege as to d
14 h each of these 54 to 56 allegers?
a 15 A
I think I have answered that question.
And to the 16 extent that I didn't, I don't understand the question.
Maybe 17 sy counsel can help clarify it.
But I think that I have 18 answered it.
19 Q
Okay.
20 MR. ROISMAN:
The work product privilege attaches 21,
to the work that she does for a client.
Only roughly 34 of 22 these people are her clients.
The other 20 or so are people I
23 to whom she had to give confidentiality in order to get them
(
24 to assist her clients.
And she has done that.
It is part of l
l 25 the investigative work she had to do for them.
ACE FEDERAL REPORTERS, INC.
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So information that she got from them, whether it 2
was documents or interview notes or whatever, were all 3
covered by the work product privilege, which she asserts 4
here, but the person, thrs individual whose representation 11 5 lj forms the basis for making the work product is one of those 6 ?l l
34, roughly, who are clients, not a work product privilege l
7 that is personal to any of the 20 who are not clients.
8 As to those 20, she has obligations to them.
And l
l 9!
those obligations include confidentiality.
But the work 10 '
product privilege that you are now talking about runs to the
~
34 people., that it relates information obtained from the 11 l l
l 12 other 20.
Is that clear?
13 'I h
14 MS. SMITH:
I understand what you are saying now.
I 15 MR. PATON:
Off the record.
L -.
16 (Discussion off the record.)
17 THE WITNESS:
I think that is exactly the same 18 thing I said.
So if you want to ask me that, yes.
i 19 <
BY MS. SMITH:
l 20 0
Can you describe the circumstances under which the 21 documents were created for each one of those 30 or so 22 allegers?
Not a general answer, can you describe the 23 specific circumstances for each one?
i 24 A
I don't understand your question.
25 MR. ROISMAN:
She meann, could you sit here with l
l ace. FEDERAL REPORTERS, INC.
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10~,000 documents as to which.you claim work product and say, 2
document number 1, this one was created"in the.following way, 3]
I got a telephone call frosi someone --
4}
.THE WITNESS:
Is that what you mean?
i Sj MS. SMITH:
Yes, for each one of'those 30 or so.
j
,g
,,a p I
6 MR. ROISMAN:
And your question is could sh3?'
7 MS. SMITH:
Will she.
e 8
THE WITNESS:
Will she, no.
Could she, I, hink
.y,'
4 9
so.
10 MR. PATON:
That is fine.
f 11 MS. SMITH:
Okay.
12 MR..ROISMAN:
Do you understand why the answer is
(
l 13 no?
It is no for two reasons.
Number one, neither you nor i
14 ;
we would be willing to sit here for the amount of time it.
I I
15 would take to literally go through every single document and 1
16 do that.
And each one 10 personal.
We are talking about i
17 months.
And if you did it, what you would have effectively I
18 done is what we fear is already being attempted to be done, f
1 l
19
.you would have destroyed the effectiveness of the Government j.)
20 Accountability Project by taking two of its staff lawyers and 21 tying them up answering that question.
22 Secondly, to give you the information that you 23 want as to each one of those 10,000 or so documents would
(
24 necessitate disclosing information from which it would be reasonably possible to determine who it was that provided the 25 i
I ACE FEDERAL REPORTERS, INC.
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g 1 j' document or what the allegation was that the document relates i
2" to or both, both of which are matters that we seek-to keep i
3l confidential.
And since you are asking our legal position,
,q 4 j(
our legal position is that to do what you ask both l'
5l compromises the privilege and results in a harassment v
I 6r unwarranted, and that the scope of what we have to do to 7-assert the privilege does not go to the point of requiring 8
the level of detail that you are seeking and that should the 9
commissioners believe that it is so, they will be badly s
10 beaten as they were yesterday in court, again on this issue.
11 And that is our legal position.
12 BY MS. SMITH:
i 13 Q
Referring to your January 20th, 1987 letter, will 14 l the final report reveal the name of your clients?
Do you I
15 need to see the letter?
16 A
No.
And no, I would never reveal the name of the 17' clients.
18 Q
Even when you release your final report?
19 A
No.
20 Q
would it reveal the allegations?
21 A
You are asking me a hypothetical question.
The 22 report isn't written.
We don't have a standard form that we i
l f
l 23 use for writing these reports.
They are different in every 1
f(
24 i
case.
So I can't answer as a specific plan.
I can't say we t.
25 are going to follow this procedure to write this report, l
F.CE. FEDERAL REPORTERS. INC.
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1.
-because there isn't any.
{
2l If.you are asking me if I intend to reveal the h
3L names in any report, no.
What was-the second-question?
l 4
Q' Will you reveal the allegations when you release 5!
'the report?
I 6
A Well,'the world has changed dramatically since 7
January 20th, so I don't know, j
i 8!
MR. ROISMAN:
And you understand it could change l
l 9 I again.
For instance, if'the hypothetical you put included I
10' that the NRC established the independent group that Ms. Garde 11 has been asking for and if her clients accepted her eivice 12 that that was a good place to go, there might not even be a
-(
l 13l report done, or if it was done, it might be done on the basis of information that became public after the NRC did a proper l
14 15 '
investigation and issued something the equivalent of the TRT i
j 16 l reports in Comanche Peak.
So there are a lot of hypothetical !
]
i 17 !
" ifs" between this moment and when and if that report that is 18 d referred to is written.
19 MS. SMITH:
Do you a degree with what Mr. Roisman j
20 has said?
21 THE WITNESS:
Yes.
22 BY MS. SMITH:
23 Q
Would you give us the names and positions of the 24 GAP employees in Wisconsin who have worked on this 25 investigation of the South Texas allegations project?
il ace FEDERAL. REPORTERS. INC.
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1 MR. ROISMAN:
Can you tell me why you want to know 2
the answer to that question?
3, MS. SMITH:
Because we are trying to establish who i
4 !}
the clients may have established a relationship with --
l 5 !j MR. ROISMAN:
And --
4 6
MS. SMITH:
-- for purposes of the attorney-client 7]
privilege.
Ol MR. ROISMAN:
And why do you need to know the 8 g!
9 names of these people to do that?
O 10i:
MS. SMITH:
Well, so far we only have the names of b
11 h Ms. Garde and Mr. Condit, and what we would like to know, are I!
4 12 H there others in Wisconsin or D.C. who have worked with the i
b t
I 13 clients.
14 MR. ROISMAN:
Will it satisfy your needs if h
j 15 Ms. Garde tells you yes and how many without us getting into j
l i
16 1 the names of who those people are?
l 4
17 j MS. SMITH:
It would.
)
1 18 THE WITNESS:
Your explanation of the question 19 indicated an assumption that I want to make sure is not 20 included in my answer.
You asked me how many people have
{
21 worked with the information; is that what you asked me?
22 MS. SMITH:
Right.
l 23 [
THE WITNESS:
Okay.
Worked with the information 24 is a different question than how many people have had initial 25 contacts with allegers or clients.
I have an administrative I
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i lo staff. 'They type things, they -- you know, they read things 4
2l for me.
They summarize things.
They may do those types of 3
things.
4 BY MS. SMITH:
5f Q
How many have talked with the allegers?
l 6l
-A In Wisconsin?
7l Q
In Wisconsin ~.
l 8l A
See, that is just not a fair question either.
9 Somebody calls up, I am out of town.
They may. talk to the 10' receptionist.
11-Q Under the attorneys' authority in Wisconsin?
12 A
There are.two other employees in my office in 13 ;!
Wisconsin on a permanent basis.
GAP rotates other attorneys i
14 ;
in and out of the office in Wisconsin.
They are treated as
- 15 !
clients.
They are treated as all my other clients in the i
16 l course of representation.
They talk to the receptionist, i
I l
17 j they may talk for a specific assignment on one person or
?
18 another or they may just be dealing mainly with Richard up j
1 I
here.
Your question is --
19 20 0
Are there any other attorneys in Wisconsin that
)
21 l worked with the allegers?
1 22 f A
GAP rotates attorneys in and out of Wisconsin.
It i
l 23 is like posting to Siberia.
('
i 1
24 MR. PATON:
Except in your case.
]
l 25 THE WITNESS:
Except in my case, right.
h AcEEEDERAl. REPORTERS, INC.
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1 BY MS. SMITH:
2h Q
Were there any other attorneys other than i
1 3
Mr. Condit who talked with the allegers?
4y A
Whoever talked with the allegers.
H 5
MR. ROISMAN:
You are talking about a substantive 6
conversation?
b 7!
MS. SMITH:
Right, regarding the South Texas i
8 allegations.
9h THE WITNESS:
Let me consult with Mr. Condit.
i 10l (Witness conferred with counsel.)
11 lp THE WITNESS:
Neither Mr. Condit nor I can think
{,
12 l of any attorney at GAP.
Mr. Rubinton, an attorney at GAP Y
13 l that has worked substantively with the allegers, Mr. Rubinton 14 has done work on this case and continues to do work on the N
ii 15 h case on a kind of piecemeal basis.
16 j
BY MS. SMITH:
i 17 Q
Were there any paralegals that talked with the 18 allegers regarding the South Texas allegations under the 19 authority of you or Mr. Condit --
20 A
This just goes to talk to the allegers?
21 Q
-- regarding the South Texas allegations?
l 22 A
What level of detail?
If I tell, if I have one l
23 l!
parallel that I may say, call up and get these --
(
l 1
24 Q
Regarding the substance of the South Texas 25 allegations?
E I
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- A My paralegal in Wisconsin does some work for me 2
occasionally under my direction on this case and has had some 3j contact with the allegers.
I would not consider that work 4l fairly substantive or substantial.
More as a substitute for 5
when.I am out of town and they have to deal with somebody.
I 6 !.
BY MS. SMITH:
11 7j Q
You mentioned previously that you made a I
i 8i recommendation to the GAP board.
I 9j A
Off the record.
10 (Discussion off the record.)
11 -
BY MS. SMITH:
12 0
Is Mr. Condit with the Washington office?
(
13 A
Yes, he is.
I 14,
Q And you mentioned that you made a recommendation i
15 h to the GAP board.
Where is the GAP board located?
\\\\
h 16 i A'
I don't remember what you are referring to.
l 17 MR. ROISMAN:
You had indicated that you had made 18 a recommendation to the GAP board after an initial 19 investigation that they should or shouldn't start an i
20 investigation into South Texas.
21 ;
THE WITNESS:
All right.
The GAP board meets 22 l here, when it meets, in Washington.
But its members aren't
}
i i
23 l
necessarily all here.
I can't even tell you who they are all !
g l
r A
24 so I can't tell you where they are.
25 BY MS. SMITH:
I ace-FEDERAL REPORTERS, INC.
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'ree 182
[
1!
Q They are not all from Washington?
(
2,;
A They may be.
I don't know.
3j MS. SMITH:
I think this is a good breaking 4l point.
i 5
THE WITNESS:
Okay.
6!
(Whereupon, at 1:05 p.m.,
the deposition was I
i 7
recessed, to be reconvened at 1:30 p.m. this same day.)
8 l
9L ti e
10l 11 lj i
i 12 i
(.
13 i
14 1o
{
15 I
16 i
f 17 18 I
19 20 l
1 21 j l
2 2 l:
l i
23 i
(
24 l
25
)
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31950.0lI l
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183 1
AFTERNOON SESSION (1:33 p.m.)
(
1 2h Whereupon, 3
BILLIE P. GARDE 4
4l resumed the stand and, having been previously duly sworn, was l
5 l0 l
examined and testified further as follows:
6' EXAMINATION (Continued)
- L 7'
BY MS. SMITH:
l 8i Q
I have one more question about the GAP board.
9 When you made that recommendation to the GAP board, did you j
do that here in Washington?
10 11,
A Well, I want to make sure that the record is clear i
12 on what that consisted of.
You may be under some kind of
]
(
i 13 misunderstanding that I prepared some kind of written report, h
14,
made a presentation to eight different people in a very
]
l 15 l formal setting.
When I said I made a recommendation to the 1
16 l board, what I did was, the process that we normally follow is l
17 !
that attorneys make recommendations to the executive i
18 director, which is what I did.
I told the executive 19 director, my belief and opinion based on the information that 20 I had looked at at the time.
21,
O Can I interrupt you?
22 A
No, I want to finish.
He then makes a i
i f
23 determination about whether or not to go to the board and
(
l proceed with formal approval of a case and what to inform the 24 i
25 /
board about an emergency case.
I didn't do that one-on-one 0
I
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1 to the board.
2 ]'i I talked to the executive director.
My executive i
3 director, not Mr. Stello.
And he deals with the equivalent g
4 Ll of the Commission.
So I never talked to the board itself.
I l'
5I didn't prepare any written report.
I made recommendations if 6
pretty much like I am describing in the level of detail I am 7!
describing on this deposition.
I didn't give him any names.
i 8
I didn't give him any specifics.
I just said an increasing 9.
number of people, their concerns appear to be pretty serious i
10 compared to other plants, and I make a recommendation we i
t 11 ;
devote resources and expand our initial investigation.
12 Q
Where is the executive director located?
Is he
(
13 l here in Washington, or she?
l 14 h A
Yes, he.
i 15 1 0
All right.
j I
i 4
16 For clarity, are all 54 to 56 people your l
l 17l clients?
The reason I am asking this is because I thought 1
18 l
you told us on July 27th that they were all your clients, and 19 then when we got into the discussion regarding the work i
20 product document, I heard something about 34 or so being 21,
clients and 20 or so not being clients.
So that we can be l
22 !
clear on that.
I l
l 23 A
There is an attorney-client privilege with roughly
(
24 two-thirds of the people on the list.
Again, I am being 25 approximate.
I use the number 20 as an approximate in which c
i L
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'1j I am, for which I am only claiming the work product 2i privilege.
L 3
Q Okay.
But are you claiming the attorney-client f
4l privilege for all 54 to 56?
Or is it a number less than l
l
' S j;! '
that?
A That is what I just said.
I am only claiming the 6 '1:
i 7 !
work product privilege for one class of individuals.
i 8!
Q
'You are saying work product.
My question is l
9 ;-
attorney-client.
Are you -- are all 54 to 56 of these b
10 l}
.allegers your client?
And when I say "your client," you have 11 an attorney-client relationship with them?
Or is it a. number 121-less than that?
i i'
l I
'13 ;
A--
It is a number less than the whole.
l 1
14 Q
And approximately how many, would you say?
15 A
We'have.been using the approximate number of 20.
16 Q
Approximately 20 are your clients?
17 a A
No.
Approximately 34 are my clients, l!
1 18 Q
Okay.
I have it.
And 20 are nonclients.
19 A
Yes.
20 Q
And what is the reason you won't give us the 21,
information the nonclients provided to you, or did you say t
22 l you would provide us with those documents?
il 23 lj A
No.
I said I would not provide you with those
.c 1
24 documents.
25 Q
I thought this morning you told us you would i
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11 provide us with those documents.
2 MR. ROISMAN:
No, I think what we said this n
'3j morning was that it would be of the allegations of people 4 [-
other than the 54, that is people who did not provide 5 [l i
allegations as part of the investigation that was being done 6L on behalf of the clients.
So it is beyond that group.
7)
MS. SMITH:
I understand.
i 8
MR. ROISMAN:
But there are different reasons.
0 9 ll Everybody, the work product applies to their documents.
A 10 subset of those, they also have the attorney-client privilege 11 l applied to them.
I 12 b BY MS. SMITH:
(
13 ;
Q
-Why won't you give us the South Texas allegations 14 that the nonclients have?
4 15 '
A Because the information that I-gathered from the i
16 nonclients I gathered in the course of doing my investigation {
)
17 in the representation of my clients, and I think that you I
18 just must let me explain essentially the hypothetical or' 19 theoretical work that I do and the files created in order to 20 answer that question completely.
21,
If you were to be given copies of my files on 22 these clients or be able to peruse these files, what you l
{
would find is there is a file, of varying size, on each i
23 g
1 24 client.
Within that file there is --
i
!{.
I Q
When you say " client," you are talking about 25 i
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the --
(
2,I A
The 34.
There is a file on each client.
Within J
3 that file on each client there will be a folder 4 !!
attorney-client correspondence.
There will be then a folder o
al U
of general information about that client, like a summary of 5
6 his concerns, perhaps, or a summary of the allegations.
And l'
7 then there will be a breakdown of the information that that 4
8j person has given us.
So it may be allegation 1 and behind 9j the divider allegation 1 there may be 100 documents or maybe Il 10 g five documents, i
11 j There may be -- I will use for now, I will use d
12 p pieces of paper.
There may be 1000 pieces of paper.
And I
d o
13 y allegation 1 may say, the welding at this plant is
- i 14 inadequate.
And under that allegation are all the documents i
15 that support that information.
There will be allegation 2, 16 l allegation 3.
So when I say there are about 600 allegations, H
17 1:
there are about 600 subsets of information contained in the l
18 files of the clients.
19 l
Now, some of that information in the files of the 20 clients actually came from the 20 people who provided it in il 21 the course of me doing my investigations.
So that -- and I H
22 ]
have gone over this numerous times -- I want to go over this
?
l 23 y again.
l l
o i
l l
t 24 '
Somebody contacts us, we don't just say, okay, 25 fine, let's take the case, we take all your allegations and i
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concerns at face value and run with it.
We conduct an
~
2
-investigation so we can give that person competent legal 3j
. advice about what to do and how.to proceed.
-4[
In:some cases, proceeding means they are going to l
15 h; sue their. employer or they have sued their employer.under the Y
6 Department of Labor or under a tort remedy.
In some cases,-
7l they are still working there, but they think they are going I
8 to get' fired.
They believe they are going to-be fired and 9
they believe they are going to be fired for raising' safety 10 concerns.
11 In other cases, they say, I have gone as far as I l
12}
am willing to go with this allegation because I know if I L
k 13,
take one more step on this allegation, I am going to get 14 j fired.
That may be next week a Department of-Labor t
15 complaint.
If I used his name today, I guarantee you he 16 would be a Department of Labor complaint next week.
But 17 right now they are not a Department of Labor complaint.
18 They may say, I am never going to sue the company, 19 I am 30 years old, I want to work in the nuclear industry for j 20 as,long as I can get a job, but I am worried about that 1
21 plant.
I am concerned about this issue and I can't get j
I i
22 anything else done about it.
You are the court of last l
23 l
resort.
Ms. Garde, you get that information to the NRC.
^
l i
g;
.1 24 j
If they give me that and that is the scope of my 25 representation, they still have a file.
They still have a n
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1 file, and within-that file there still is attorney-client and
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2i a breakdown of the allegations and information contained in 3
those files which explains, supports, gives me the l-4l understanding of analytical documents.
i 5 lH It may-be information I got from nontestifying 6
experts.
I m y have called up an expert in the field that I 4
7
'have. met in the' course of my many travels and said, what is 8,
this allegation, is this an important allegation?
I may not 9l want to tell his name.
I may not even tell the plant that it ji 10
.is at.
What is the code requirement for this particular 11 thing?
12 I That is going to be in the file of that client.
J 13 l But his name, the nontestifying expert is among the people C
that I have given you when I am saying 20 people, somebody 14 i
15 who may work on the ASME board may say, I am going to give i
16 you this.
In fact I am even going to send the code and a i
17 l specific piece of code that you need for that allegation, but 18 don't ever tell anybody that I am giving you information.
19 Don't even tell your clients where this came from.
But I 20 will give you the information because it is a serious i
21,
concern.
22 That is what I am talking about when I am talking l [
l 23 about what the information is in the files.
And there is no
(
24 other class of information.
It is all in our investigative i1 25 work files.
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~In'what I will call the old days, the NRC and GAP l^[
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2 i!
'would' sit down with the expert to expert, whistle blower to l'
4 t
I 3'
the technical person on the NRC Staff and all.
The only l
4l function that I performed was to make.sure my guy who was i
.1 5 !!
nervous didn't. forget something, didn't'get tricked into some i
g 6 h kind of explanation, didn't miss something.
Make sure the l
U 7!
confidentiality arrangement was right.
But that is not the i
8<
situation we have with Region 4.
It is not the same set of I
9 circumstances.
I BY MS. SMITH:
10 t
11,
O I think we are getting beyond my question.
When I
12 l
-you created documents, what litigation were you anticipating, I
l 4
13 l particularly when the time for final review had expired on 14 the South Texas proceedings and when your retainer agreement 15 ]
says it doesn't include litigation, so when you created these l
'l i
i 16 documents, what litigation were you anticipating?.
17 A
I just answered that question.
18 MR. ROISMAN:
I know.
i 19 Your question presupposes a different philosophy 20 of the case.
And since I am the lawyer on the case, it seems 21,
to me I ought to clarify that.
We believe that litigation l
22 for_ purposes of privilege includes any proceeding in front of 23 ll the agency.
That is a motion to reopen.
That is an
)
p i
24 investigation.
That is this deposition.
That-is the South 25 Texas operating license and amendment at any time, that is a a
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li show cause proceeding.
Any and all of those.- And it 7
1 2l includes any effort.lar these clients to get the agency to do-1 i
3l a proper investigation leading to an enforcement action, 4
shutdown order, a 2202 order, any of that.
i 5
MS. SMITH:
That is my question.
What specific l
6 litigation were you anticipating when she created the 7]
documents that she is withholding under the work product 8:
documents?
That is what I am asking you.
I 9 h.
THE WITNESS:
All of the things that my counsel 1
10 just mentioned that I mentioned on the record last time, all 11 of those things.
1 12 BY MS. SMITH:
13 Q
But that sounds sort of hypothetical.
What d
'l 14 )
specific litigation were you preparing for or were you
.l 15 anticipating?
i 16 A
This is really frustrating.
! 1 17 I Q
You gave me a hypothetical --
l 18 MR. ROISMAN:
The difficulty is that --
19 MS. SMITH:
-- Set of --
i 20 MR. ROISMAN:
When the client comes in the door, 21 i the client is not a sophisticated lawyer, the client doesn't l
1.
22 say, I want you to sue Bill Paton for me.
The client just 23 comes in and says, I want the agency to investigate this g-i, 1
24 information properly.
I am hiring you to see to it that they 1
i l 25 do it.
That investigation is the litigation.
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MS. SMITH:
That you were anticipating?
(
2 MR. ROISMAN:
That is correct.
That might I
3 manifest itself as a 2206, it might manifest itself -- at 4
this point it continues to be pressed to, manifested in the 5
form of a self-initiated examination by the agency along N
l 6y certain guidelines that protect the client and protect the n
7l information.
8 MS. SMITH:
Okay.
So it sounds like from what you I
i 9h are telling me that the litigation you were anticipating was h
10 ll some type of investigation of the allegations by the agency?
11 THE WITNESS:
In some cases.
In other cases, as h
12 !
we have stated on numerous occasions, there is discrimination I
i i
t complaints that can be or have been filed in a variety of 13 ;l 14 forums.
And for each client it is different.
And for each i
15 ;
client it may change.
I 16 l MR. ROISMAN:
And the investigation may itself go I,
i 17 on to action.
f 18!!
BY MS. SMITH:
19 Q
All right.
20 Referring you back to your January 20th, '87 21 letter --
22 A
Can you show me a copy, please.
i 23 p' Q
Surely.
t t
k 24 (Counsel handed document to witness.)
25 BY MS. SMITH:
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1 Q~
In one'of'the paragraphs you indicate you are k.
2,
. working with or representing 36. people or former or current-3[
workers..What did you mean by the phrase " working with" at I
that. time?
4lI
-p 5F A
" Working with" is a phrase that I would use, still.
'i 6'
used regard the people who are not clients.
Who are in the l
7
. category of nontestifying experts, people who have provided i
8!
us information in the context of doing the investigations.
1 9
Q And did those people provide you with any 10 "
allegations?
The ones you are working with?
f 11 A
I think I have answered that question in the 1
12 '
context of my description of how the investigations are 1
s k
13 ;
done.
By the nature of their providing me anything, they are i
14 h providing me information which is supporting allegations or 15 :
concerns raised by my clients.
They may in the context of 16 providing me the documents give me allegations which now l
\\
I 1 7 l.
themselves have separate numbers.
So witness x sends me five 18 NCRs to support client B's case.
Those may have their own 19 separate allegation numbers, but they are going to be found 20 in the context of the client's case.
21 ;
Q But why can't you provide that information?
I 22 A
Because it is part of my client's -- two reasons.
o l
23 h First, because it is part of my investigation, it is part of I
J
[
24 the work that I do to adequately advise my clients who are l
1 25 clients and are involved in some type of either litigation on
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1 discrimination issues or investigation issues.
And'the-i 23-second because I obtained that information'only because I was?
d
'3 able to tell these individuals that I am not going to reveal i
4l your identity.
,i 5
Q What about the substance of the information they I
6 gave you?
i 7l A
It is part'of my work product.
8' Q
You created that document?
l l
9'i A
It is part of the information that goes into the Y
10 work product files _that support each and every allegation f'or 11' the clients.
I told you before that'in the classes of' 12 documents that exist in my files, there are work product 4
1 13,
documents, there are attorney-client correspondence jl 14 documents, and there are documents that are, on their face,'I I
O 15 Il don't have my name on anywhere, they are essentially ll 16 i documents that include or discuss or are information from the !
17 plant.
And those documents I am not turning over to you-18 under the work product privilege of my investigation.
19 For a variety of reasons.
If it was given me by 20 my clients I am not go not give it to you because it will 21 identify him.
If it was given to me by somebody else, I am 22 not giving it to you because it will identify my clients or l
j 23 h the source or because I prepared this information in order to !
(
1 i
-4.
24 assist and do my clients's bidding, what he or she has 25 retained me to do.
That is why I am not going to give it to l
.i!
I
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.you.
2!
O What about documents that were provided to you i
(
3 from nonclients, and if you withheld their identity, couldn't 4')
you reveal the substance of those documents?
i 5
JL I explained that to you.
There are no'other l
6!
documents-other than the documents that'are in the files of l
7 the clients.
There aren't any.
Everything that I have is in 8
the class of documents that I just described to you.
9 MR. ROISMAN:
She has said as to the little subset 10 that you are talking.about, that those documents would 11 disclose either the name of her clients or the source.
12,
BY MS. SMITH:
13gl i
Q What the -- you are saying the substance might I!
14 [
disclose the identity of the source?
i l
i 15 l A
I said that, yes.
I 16 i MR. ROISMAN:
Who knows that the steam valve l
j i
17 sticks?
I 18 BY MS. SMITH:
19 0
We are not just talking about a name.
20 MR. ROISMAN:
We are talking about the same way in f i
21 which this agency withholds information that includes more j
than just the name because some of the substance of the 22 1
I 23 information will make it possible for you to figure out who 1
k 24 it must have been, who was so placed that they would have j
l L
25 known this.
Who could have had access to this document that i
l l
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they could have made it available to someone or this k,
2 ij information.
l q
3h What Ms. Garde is saying, all the information is 4}
in one or the other of'the categories she has described.
I 5l BY.MS. SMITH:
6 Q
Do you agree with what Mr. Roisman has just said?
7 A
Yes.
8,4 q
Q Have any of your clients discussed safety i!
9 l}
information or any of the 600 or so allegations with 10 newspapers or other media?
i-11 l
A I believe.some of them have, yes.
12,
O Why can't you disclose'those allegations that were
't 13 L discussed with the newspapers?
i 14 A
Because I am bound by the attorney-client il 15 H privilege.
And if my client takes actions to go public with 16 that information and still binds me for the purpose of l
1 17 insuring an adequate investigation of his allegations, then I i 18 lI I
l am bound by that requirement.
19 Q
Even though the client has waived the privilege?
i 20 A
That is right.
l 21 MR. ROISMAN:
That is a legal definition that you 22 are imposing.
23 THE WITNESS:
That is right.
l
(.
MR. ROISMAN:
Ms. Garde is saying she does not 24 i
i 25 believe it is waived because as to her --
ace FEDERAL REPORTERS, INC, i
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1 THE WITNESS:
Because my client takes action which i
(~
2i
- a. court may-consider as'having waived the privilege, that i
3'l doesn't mean that I consider it waived.
I don't consider it T-4l waived if my client goes on the top of the Washington i
5 Monument and shouts it for all the world.
If he says, I
R 6
"Ms. Garde, you can't tell the NRC, they are stuck with 7
living with whatever I said in the newspaper and do their 8 )l investigation-on that, you are bound by your agreement to i
I 9l me," then'I'am bound by that. agreement.
10 l MR. ROISMAN:
You can go to the newspaper and get 11 it if you want.
12 BY MS. SMITH:
13 ;
Q-Have any of your clients discussed any of the 14 '
allegations with the Texas Attorney General or any other 15 state official?
16 (Witness conferred with counsel.)
8 17 THE WITNESS:
As to your specific question, have j
118 any of my clients given information, you better repeat it.
19-BY MS. SMITH:
20 Q
Have any of your clients discussed the South Texas 21 allegations with the Texas Attorney General or any other 22 state official?
23 A
I can think of one case where I believe that the I
(.
24 i
client has, but I don't know that for sure.
And I -- I mean, i
25 generally the answer is no.
But I know of one case where I L
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1l think that that client may have.
Other than that, I don't 12j know.
3l MR. ROISMAN:
Identify whether it was pttorney 4
General or --
1 4
5 THE WITNESS:
I think it was Attorney General.
1 6h BY MS. SMITH:
l 7H Q
The Texas Attorney General or the Texas Attorney 8j General's -- someone within that office?
}-
H 9u A
Someone within that office.
I think that there is b
10 l one person that has.
But I don't know that for sure and I
11 l!
there may be a few more, but generally, I don't think so.
j 12 !!
However, I want to make clear, and I think it is
/
h 4
a 13 g appropriate to make a distinction, that to this point when we U
14 i are talking about information about the plant or allegations, i
15 q I have been answering in the context of safety issues, i.e.
I 16 hardware issues.
I haven't answered these questions as to u
4 17 h criminal wrongdoing or criminal violations of Texas state law b
18 "
or things that may be considered as management issues, even 19 by the NRC.
(
20 l
For example, if the top three people at HL&P were i
i 21 '
indicted for grand theft, I haven't answered your questions I
22 up to this point either last week or today as to if that was i
i 23 (
what you are trying to get out of me.
I have answered, I s
i:
i 24 think, as the deposition asks for, safety-related information
()
25 which I understand generally to be hardware information, as ace FEDERAL REPORTERS, }NC.
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[
1q you have asked me.
2 Q
So you have answered the question as to safety 3j allegations?
4 ll A
Yes.
li 5
MR. ROISMAN:
As to a narrow definition of safety Il 6?
that we think is what you have in mind, but you should know i
7 that in licensing hearings, like the TMI case, management 8
character and competence is viewed as a safety issue.
That 1
9H is, if you could show in this hypothetical that Billie made, 4
10 that the management of HL&P were in fact felons, one could 11 ]
raise that, make a safety contention, get it into issue in l!
l 12 l1 the licensing proceeding and have a board decide, should we r,
1 4
13 allow known felons to operate a nuclear plant?
14 But she is not understood that that is what you 15 [
were seeking here, so her answers have not gone to matters e
16 ;
that were really criminal and didn't in and of themselves 17 h involve a piece of hardware, if things were stolen from the H
n 18 plant, unless they were stolen and they left a gap where 19 someone was supposed to have a safety piece of information, 20 it is not a safety issue in this narrow sense.
21 l BY MS. SMITH:
1 a
22 Q
Have your clients discussed South Texas safety 23 L allegations with the licensee, with the utility, Houston s
24 [
Lighting & Power?
25 A
I think I have answered that question.
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MR. ROISMAN:
She answered that this~ morning.
2 BY MS. SMITH:
i i
3.
-Q.
Have they discussed it with workers at the South-l t
4{
' Texas facility, other than.the ones who you indicate.are
}
.l 5j allegers?
6}
A I don't know that.
-l 7l MR. ROISMAN:
You understand that when you'ask for
'i 8l HP&L,-people you are talking about, workers, the president is I,
9 l' a worker.
.>-l 10 ' '
BY MS. SMITH:
11 Q.
To your knowledge, have_the clients discussed the I
12 safety allegations with anyone else or any other groups,
~i~
s 13 ;
congressional committees, representatives?
)
14 h A
I think in one or two instances there may have j
j.
'i 15 been some direct contact between my clients and congressional i
i 1
16 I committees-And other groups.
But generally the answer is
- j. j 17 no.
I think that there have been some that have, but I don't l
18-know specifically, and I couldn't answer that question i
19 without going back to each of the clients and asking them.
1 20-Q Have your discussed the safety allegations with j
21,
the newspapers or other media?
l i
22 '
A I have talked to the media on an on-and-off basis 23 regarding the kind of information that has been in the o
i
.g x
24 letters back and forth.
25 0
General type?
1 4
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~1 A
Yes, general type information.
And there have
- (~
2 -i been one or -- I think maybe one, maybe more than one article 1
3 that went into any specifics about'one of the Department of 4'
Labor cases.
That is the only one thatLI recall.
There may 5
be more.
I think that is the only one that I remember is l
6!
.one.
7i So, yes, I have talked to the media, but only i
r 8l general information.
I 9l 0
What about talking with the Texas Attorney.
I 10 l General's office or other state officials, you, regarding the 11 South Texas allegations, the safety allegations regarding 12 South Texas?
i j
13,
A There has been some general communication on the i
d
~ 14 ji safety issues with the Attorney General's office.
I
)
i 15 Q
And I assume you also have talked with persons j
j 16 from the licensee?
j i
i 17 1 A
Well, there was a series of correspondence back 18 l
and forth between Mr. Geiger and Mr. Goldberg and myself.
19 And there was a number of telephone conversations.
And I
20 actually some personal conversations with representatives of 21 HL&P.
But those, I think, were like referenced and talked l
l
- 22 l about in the --
51 i
23 h Q
Attachments to your motion to quash?
]
f 1
s 24 A
Yes.
25 Q
Did you talk about the safety allegations with l
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202 1 i fellow workers at GAP, both in Wisconsin and D.C.?
[
l 2
A
~In the context of professional relationship in
'3 l
terms of working, cocounseling on the case, and with the 4+
- workers, I. talked to Mr. Condit on a regular basis.
In terms 5I of.other attorneys at GAP, I am sure I have talked to one or 6 h two of the other attorneys regarding the discrimination 7I issues as we were working on discrimination complaints and
+1 8 i' elicited their advice and counsel.
9[
And I have also talked to Mr. Roisman in the F
10 d context of this deposition.
11g Q
Did you talk with anyone else, other groups, i
12/
including congressional committees or representatives
(
13 g regarding the safety allegations reference South Texas, the d
14 '
South Texas nuclear project?
15 4 A
I have talked to some concongressional committees 16 '
generally about the problems at South Texas, but when I say H
4 17 h the problems at South Texas, I am meaning more the scope of ll Il 18 [
the NRC's refusal to competently investigate these 19 allegations and this deposition and the efforts that have 20 I
been taken to avoid doing its job more than saying, here, 21 Congressman so-and-so, here are these allegations, do d
22 y something about it.
I 23 p; Q
You told me that you made a recommendation to the 1,
24 executive director.
Did you talk with the GAP board l
)
25 l regarding the safety allegations?
4 i
1 i
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1 A
No.
Let me make sure that you understand that
{
2 that;goes to my last answer.
I gave my executive' director an
~
3/
overall' conclusion about'the quality and the number'of l
4l concerns that we were getting last fall.
And that conclusion 5.!j was based on specific information which '1 did not share 'with j
6 h
'him.
7 MR. ROISMAN: 'Are you fully aware that as you have 8l worded:this question, regarding the safety allegations, this
!9]
letter that was sent to Mr. Stello and Mattox fits within the W
10 '
definition of your question?
11
.MS. SMITH:
Yes.-
12 '
MR. ROISMAN: iThat the question -- if your purpose I
i 13 ;
in the question is to find out whether she has divulged I
14 !
information to other nonprivileged people that she is not 15 willing to divulge to the NRC, the questions you have asked i
l 16 have in no way elicited any information in that regard.
I l
just don't want you to misunderstand what you are asking.
17 18 By saying related to the safety allegations at j
19 South Texas, you have encompassed everything from that letter l'
20 and less specific all the way to everything.
And there is no i
21 delineation.
l 22 We can sit here and play this game but I just have i
23 h a feeling you didn't really want to know the answer to that I
u i
i 1
24 question.
You wanted to know has she waived the privilege by n! going and talking to other people, other than the NRC, who 25
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don't have the right to the privilege and thus can you
(
2 thereby claim that you are entitled to see it.
3 (Witness conferred with counsel.)
40 MS. SMITH:
Can we go off the record for a a
5h second.
6 (Discussion off the record.)
7 BY MS. SMITH:
q 8j Q
Have your clients discussed the safety allegations n
90 regarding South Texas at the same level of detail that they li 10 [
discussed them with you with the newspapers or other media?
Il l
11 !
A Have my clients discussed it?
o 4
12 Q Q
Your clients, f
13 A
I don't know that.
u 14 j Q
Have your clients discussed the safety allegations 1
15 g' regarding South Texas at the same level of detail that they
.U If p' discussed them with you with the Texas Attorney General or 0
17 h any other state official?
il 18 [
A I don't know that, hl l
Q Have they discussed the safety allegations 19 H
l$
20 regarding South Texas at the same level of detail that they 21 discussed them with you with the licensee?
a.
22 A
I don't know that either.
23 i; O
And the same question for anyone else or any other
)
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{" groups,
(
24 including congressional committees or i
1 representatives?
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1 A
I certainly can't answer that question from my d
2h head.
I am sure that in our records or documents or files 3 !
regarding each client, we have asked them the question who 4
4 else have you. talked to about this.
I don't think we asked 5l the question, what exactly did you say to that person.
So I 6l can't answer the question here.
And I, in terms of what my I
I 7'
clients said to other individuals, unless I was in the room i
8 or unless I was there, a part of the conversation, I cannot il 9 {!
answer that question.
I don't know what they said.
1 10 [
Q All right.
h 11 j!
Have ycu discussed the South Texas safety u
12 d allegations at the same level of detail that you discussed
[
U d
13 g them with your clients or your clients discussed them with o
kl 14 you with the newspapers or other media?
i!
15 j(
A Do you mean in your question specific hardware li 16ij safety allegations only?
i 17 Q
Is that the way you define "the safety n
18 l!
allegations"?
l 19 A
No, I am asking you if that is the question -- is 20 that what you are looking for in my answer, do you want to 21 know that?
I 22 ;
Q Yes.
I i
n 23 [.
A Okay.
I haven't ever discussed the allegations in i
U i
i 24 L any more specific detail than I am giving you here or that I I
25 g have given the NRC in the context of this entire proceeding.
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1-There-are some letters that have more detail than I have gone I '.(
-2 !
'into l'n this deposition.or generalities or talk about some of l t
.3
.the things, but I haven't given anyone-any more detail than 4]
that that I'can recall about specific safety hardware-i 5l allegations.
MR. ROISMAN:
Excuse me.
l 6 ;1 7l (Witness conferred with counsel.)
l 8
THE WITNESS:
My counsel:wants me to make sure 9
that that. answer only goes to external contacts, not internal 11 0 -
contacts with, for example, Mr. Condit and other individuals, 11 and Mr. Roisman wants the record to reflect that he doesn't-12 know the safety allegations either.
13 BY MS. SMITH:
l' 14 i'.
O And that "anyone" in your answer, that would 15 include persons from the Texas Attorney General's office or 16,
any other state official?
I 17 A
As to specific safety hardware allegations?
18 j
Q Right.
I 19 A
As to specific safety hardware allegations, it 20 includes the entire class of external sources.
As to the 21 type of general information given to the NRC in these 22 letters --
l h
1 23 h Q
Not the general, the specific?
(
24 A
Okay.
No.
25 O
And that would include congressional committees or i
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-representatives or any other groups or organizations?
l.
2i A
Not yet.
l 1.
4
.3, Q
Do you-or GAP have any South Texas allegation r
4l information for which the privilege does not apply, the i
.i I
h 51 attorney-client privilege does not apply or the work product.
6 doctrine does not apply?-
i-7; A
Is this a trick question?
How many. times have we l
l 8'
been over this?
9!
(Witness conferred with counsel.)
f 10 '
MR. ROISMAN:
Would you mind asking the question 11 again?
-12 BY MS. SMITH:
l-i 13 l Q
Do you, Ms. Garde, or GAP have any South Texas i
i i
14 l allegation information'for which the privilege does not-15 l apply, the attorney-client privilege?
16 A
Yen.
17j Q
Are you willing to turn that information over?
O 18 A
Yes.
We said that we were going to turn it over.
i 19 MR. ROISMAN:
She has only asked about one 20 privilege here.
l i
e 21 MS. SMITH:
The attorney-client is the one I l
1 l
t 22 lj asked.
l 23 i
MR. ROISMAN:
She is only asking --
24 THE WITNESS:
You are --
1 J5 MR. ROISMAN:
I want to clarify this because it is
)
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going'to get; confusing and I am the one who stated before 2.o what we are going to do, t
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.As to information that only the attorney-client 1
4 h work product applies to and not the attorney-client 5 Ol; privilege, the answer is no.
As to the information that the l
d i
l.
6 attorney-client privilege applies to and not the attorney 7l work product, the answer is no.
But there is a class of l
8, information that neither privilege applies to that we are i
i 9
going to turn over.
We started the deposition today by i
10 l telling you that.
That will be about the last week of this l
11 month when it is all pulled together.
It represents 12 allegations that are not part of this investigation that 13 Ms. Garde has been doing on behalf of these clients, nor i
14 h provided to her by the clients.
15 THE WITNESS:
That is correct.
I agree with what l
16 i my counsel delineated.
17,,
MS. SMITH:
Okay.
I 18 THE WITNESS:
I also want to make sure, you said 19 does anything GAP have or anything that I have, I have made 20 more than a good-faith effort to review the information in I
21,
the GAP files, and I am answering the question based on my i
22 knowledge.
If there is other things that I haven't seen or 23 l
looked at at GAP somewhere, I want my answer to be clear, I i
(
24 think I have got everything incorporated in the answer, but 25 there is the possibility there is something at GAP that I l
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. don't know about.
2i If it is at GAP and I know about it, I-have talked 3'
about it today.
1 i
4]
MR. ROISMAN:
Let me make sure that you understand 5l what'the potential scope of that is.
At least with some 6l whistle blowers who I have dealt with not related to South i
7{
Texas, they have indicated to me that when I was operating in 1
8 conjunction with GAP and working jointly with GAP attorneys 9
that they might tell me something that I could not tell the l
l.
10 l other attorneys.
The level of paranoia that is created in 11 the nuclear industry worker who fears that he could lose his 12 job or she could lose her job and never work again in the
(.
~
13 ;
industry is intense and enormous, i
14 q So Ms. Garde may not know and there could be 50 h
15 people who have talked to Mr. Condit about this same plant 16_i and said, for God's sake don't tell that Billie Garde.
She 17 has been subpoenaed by the NRC and we are afraid he is going l
i 18 to break and Billie doesn't know about it and Richard is 19 under an obligation not to tell her.
20 So you must understand the limit of her answer.
21 The limit of her answer is what she knows and what she has i
22 been allowed to know within GAP, that these individuals, 23 h clients to who come to GAP, get a relationship with an 4
(
24 attorney, could put any kind of limitation on it.
+
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0 Do the 54 to 56 allegers know that they are your
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clients?
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3l A
Do they know that they are my clients?
I 4[
MR. ROISMAN:
There aren't 54 who are her ll 5L clients.
J 1
6h MS. SMITH:
That is right.
34, roughly.
l 7!
MR. ROISMAN:
Roughly.
8 THE WITNESS:
For the most part, I would say if l
i 9,
you asked each of those 34 people, do you now or have you had i
10 h an attorney-client privilege with Ms. Garde, they would be I!
11 J sophisticated enough through the process of what we have done l
I 12 l with them that they would answer the question yes.
Or if you
\\
(
13 asked them, do you have a lawyer, they would say, yes, Billie L
14 J Garde, or they might say GAP or they might say Richard Condit a
15 d and Billie Garde.
There may be one or two in there that, and l
H 16 K I can't think of any at all right now, but there may be one 17 i
or two in there that are not sophisticated enough to realize N
l 18 h the implications of an attorney-client relationship in the 19 way that I understood your question to be, but I think the 20 answer is for the most part yes.
21 Does that answer your question?
22 h BY MS. SMITH:
li 23 l Q
Yes.
And how many of them have entered into 7
a 24 retainer agreements?
4 25 A
I think most of them.
Most of those 34 have.
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1-MR.-ROISMAN:
You are talking now about.a written 2-
-retainer?
i4 3
MS. SMITH:
Yes.
~
4 THE WITNESS:
I think almost all of them have.
t 5 !'
BY MS. SMITH:
i l
I 6
Q Prior to admission to the bar, did you ever sign 7
pleadings, counsel for the client, counsel for a particular 8!
client?
9 A
I think we had one time that that happened and Il 10 lj somebody raised some stink about it in the Comanche' Peak' 11 proceeding.
12 MR. ROISMAN:
I think in Comanche Peak, we entered 13 g an appearance.
1 14.b THE WITNESS:
I signed something before we entered 15 an appearance.
16 l MR. PATON:
When you say "we" --
l 17 MR. ROISMAN:
I am sorry.
18 BY MS. SMITH:
19 0
What about related to South Texas allegers?
20 A
Signed my name as what?
21 ;
O Counsel for whoever the client was.
22 MR. ROISMAN:
Like in a DOL?
23 li i
4 l
THE WITNESS:
I don't understand what you mean.
l i
l, g.
1 24 Ask me the question again.
l 25 BY MS. SMITH:
i l
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31950.0 ree 212 l
1 Q.
As to any of the South Texas allegers, did you l {-
.2 ever prior ~to admission to the bar sign any type.of. pleading, it i
3; counsel for one of those allegers?
i i
4i A
You mean like in the Department of Labor 5l proceeding?
g 6
Q Yes.
7 A
Well, I clearly was doing Department of Labor work 8l before I was admitted to the bar.
I tried to make sure j
i 9l everything was signed personal representative for the i
10 '
client.
Some preprinted forms always have attorney for or I
11 counsel for.
And there may be something that slipped.through l
12 or a secretary typed something and I didn't notice that it 13 said counsel instead of personal representative.
So you I
l 14 {
might find a document in some older litigation files that was I
15 {
signed that way, but I think that that would be the l
1 16 !
exception, not the rule, because I was very sensitive to i
J t
i 17,
that.-
So I tried to make sure it always had personal l
18 '
representative for instead of attorney for or counsel for.
19 But it might have happened in some cases.
20 MS. SMITH:
I need to confer with my cocounsel.
21 (Pause.)
l L
22 MR. PATON:
Off the record.
{
23 [
(Discussion off the record.)
24 THE WITNESS:
I want to make a clarification.
I
)
l 25 Before the the break you asked me a whole series of questions l
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regarding documents and'information shared with others that 1
2, was a greater level of detail than I have' shared with you 3
today.
And during the break, my cocounsel reminded me that 4
there is a whole class of documents that are in the i
5.
Department of Labor files which are more. detailed than I have~
6'f gone into today.
I l
7!
And I was thinking that we had already covered i
.8i that, but I just want, in the context of this discussion on i.
9l the record, that it be clear that in those Department or 10 Labor files, there may be'a lot more detaile'd information 11 which you either have your hands on or could get your hands
'l 12 i on by getting.the docket or could come to the. client
(
-13 ;
directly, although you would have to deal with me as his
.14 I one-on-one attorney in that context, that is a lot'more 15 detailed than what we have gone into today and is part of l
16 that Department of Labor record.
So by the nature of it, it 17 will be probably already in the hands of HL&P and ALJs and i
18 l
other individuals who have looked it over.
19 Does that answer your question?
20 BY MS. SMITH:
21 Q
Yes.
I i
1 22 j A
And then there was one other -- on the letter of l
l-23 August 4, we have discovered that there is one other person
. j i
1 24 missing, and that would be another one similar to one and l
25 two, there is another client who has a complaint that was p
ace FEDERAL REPORTERS, INC.
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31950.0 ree 214 1;
filed, I don't remember the date, but I believe it was also 2l in May 1985, but toward the end of May 1985.
It was also i
3 l copied, the complaint was also copied to the Staff and an 4!
investigation was conducted on that issue, but he did not 5g appeal the ruling, which was against him.
1 6h MR. PATON:
Could somebody give us that date?
I 7l THE WITNESS:
Yes, I will give you the date.
I i
8i don't have it right this minute.
I don't have it.
I will l
9 h have to get back with you.
10 h BY MS. SMITH:
l l
11 l
Q All right.
l i
12 You indicated that some of the clients gave
[
4 13 information to the Nuclear Regulatory Commission.
ll 14 q A
I said I believed there was at least one that I i
15 [
can think of that has given information to the Nuclear ll
~
16 !l Regulatory Commission directly.
'l 17 l
Q Do you know what information that was 4
18 specifically?
19 A
No.
I mean, I don't know specifically what it j
20 was.
There may be, in the case that I am thinking of, there 21 may be some correspondence back and forth, and so obviously i
22 d that is self-contained, but I don't remember if there was any l 23 other, and I was never a party to a three-way conversation 24 between the NRC, this person and myself.
t 25 Q
Do you know what the client told the NRC regarding !
b I
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the South Texas allegations?
t l
2 jl A
If there was a letter and that letter is in my d
3 file, then I have constructive knowledge that that is what he 4}
sent to the NRC if they got it.
I don't know what he told d
5U the NRC because I wasn't a party to any conversations.
l 6'
Q So you wouldn't be able to turn over to us what l'
s 7i the client turned over to the NRC?
I, II 8 j!
A In the case that I am thinking of, there was a 9j transcript of a meeting which the NRC has not released, that d
10 the NRC has, that I have never seen.
The reason I know of i
tl its existence is because I remember trying to get the 11 i
12 i transcript.
But I don't have the transcript.
I wasn't at I
' (.
I 13 ;
the meeting.
And I don't know, I don't remember if there was h
14
a letter that went from the client to the NRC.
I just don't 15 i remember that.
16 q MR. ROISMAN:
Can I just have a clarification?
l Ll You said turn over to us that the client has given to the 17 18 h NRC.
You are the --
19 MS. SMITH:
Turned over to date.
We are the NRC.
20 But that you can turn over today.
21 '
MR. ROISMAN:
You understand our position has been i
22 !
consistently that we will not turn over to you twice what we l
23 h have already given you once.
So we wouldn't give it to you O
I
(
24 even if we didn't claim any privilege at all.
Go find it.
I 25[
Part of our whole argument --
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MS. SMITH:
Who was it given to?
(
it 2 ij MR. ROISMAN:
Part of our whole argument is that i
3, when it gets given in the context of your normal operating 4l procedures, it goes into a dark whole at Region 4 or at the 5
EDO's office and never surfaces, and we want you to find it li 6
so you will understand why we wouldn't do it again and give 7j it to the same group of people or let you take it and give it i
8 to them so they could lose it again.
9h BY MS. SMITH:
U 10 Q
Was the information given to Region 4 when the 11 h client turned --
12 l A
I understand what it was given to Region 4, yes.
(~.
i 13 j Q
Do you know specifically whom within Region 4 it l i 14 g was given to?
U 15 j MR. ROISMAN:
Moe, Curly or --
i' 16 lIy THE WITNESS:
No.
l 4
17h I do not know the answer to that question.
I e
18 I
assume that it, like everything else that disappears, goes 19 through Mark Emerson.
But I don't know that.
Mark Emerson 20 l
1s the allegation coordinator, or exterminator, depending on 21 how you look at it.
{
l 22 >
BY MS. SMITH:
j I
l 23 j Q
Did you ever have a clients by the name of Charlie
.r s
24 Jones?
I 25 A
I don't want to answer that question.
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Q In the representation agreement that is attached
{
i 2
to your motion to quash, paragraph 4, it reads, " GAP 3
understands that the client does not want Victor Stello, Jr.,
4l to investigate or participate in an investigation Oregon 5l review of his or her allegations."
6' Was that GAP's idea or was that the client's 7;
idea?
i!
8 A
I am not going to answer that question.
i 9l Q
And the reason is?
l 10 l A
Because I am not answering any questions about I
11 !
what I advised the clients or what the clients told me.
I am l
I 12 l just not answering any questions specifically regarding which
('
i 13 j way the information flows.
14.
MS. SMITH:
Excuse me.
f 15 ;
(Pause.)
16 l
BY MS. SMITH:
17 Q
Is there any reason why you don't want to tell us 18 if Charlie Jones was ever a client of yours?
19 MR. ROISMAN:
Let me deal with this.
Ms. Garde 20 has already made clear that she does not intend to talk about 21 the names of any clients or nonclients.
To disclose whether I
22 {
people are or aren't clients is to narrow the scope.
She is i
l 23 l just not going to discuss the names of people who either were fs 24 or were not clients or get into particular names.
You 25 already asked her if she had ever heard the name.
I believe L
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1 she told.you she had.
[
BY MS. SMITH:
'2:j i
3; Q
Did you ever: file a DOL complaint on behalf of a -
4!
client.without authority, without their authority to do i
}
u 5l that?
6' MR.,ROISMAN:
What is the relevance of that~to the 7 ~
' subject' matter of this deposition?
j I
'8i THE WITNESS:
She already_ asked that question, 9
MR. ROISMAN:
What is the relevance of that to 10 this deposition?
1 11 MS. SMITH:
It is to determine whether she has l
12 acted within the understanding of clients.
l- (~
13 l t
MR. ROISMAN:
What if we --
14 ll MS. SMITH:
That might be an example.
i 15 MR. ROISMAN:
Let's assume that she hasn't.
What l
'16 would -- what possible bearing would that have?
17 MR. PATON:
I don't think you need to debate with l
I o
l 18 '
him.
If she refused to answer --
i 19 MR. ROISMAN:
I think she already answered.
l l
20 MR. PATON:
The question was asked but there was 21 !
no answer.
22 f THE WITNESS:
I answered.
1 I
23 MR. ROISMAN:
She answered it when it was asked l
(L 24 before, before the lunch break.
j 25 MR. PATON:
I don't remember that then, i
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It will be in the transcript.
{'(' '
l i
2i
'Whatever answer she has given is the only: answer she has.
[
I L
3]
given.
I
)
4l MR. PATON:
Mr. Roisman says the only. answer you i
l l
i 5l have given is the only answer you are going to give..Do you i
a i
6 mind reminding us what that answer was.
l 7
THE WITNESS:
Yes.
I 8i MR. ROISMAN:
I am instructing her to not answer 9
again a question she has answered.
10 ~
MR. PATON:
Let's make sure that the record.is 11 clear.
The question that you say you answered and refuse to 12 answer again is whether or not she ever filed a complaint k' ~.
i 13 with the Department of Labor that was not authorized by the i
client.
14 l+
i 15 MR. ROISMAN:
Right.
l l
16 MR. PATON:
And you say she has answered that
.i 17 question.
18 MR. ROISMAN:
I object to her answering at all, 19 and B, she has answered it.
20 MR. PATON:
And you refuse to answer it again?
l 21 i THE WITNESS:
Yes.
l 22 MR. PATON:
That is it.
23 THE WITNESS:
Are we done?
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l l
j.1 24 l
MS. SMITH:
We are done.
r I
I 25 MR. ROISMAN:
There is one thing I need to l'j ace. FEDERAL REPORTERS, INC.
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clarify.
One, first of all I want to clarify what we are
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2i going to still do, by the end of August, barring some great l
3 L.
tragedy, we are going to deliver to you these documents that 4;
we mentioned before that were provided to us not by any of 5 h these 54 people who we are talking about but relate to the 0
6p safety of South Texas.
Two, we will --
7!
(Discussion off the record.)
i 8
MR. ROISMAN:
I will deliver it to Bill Paton,
.9 among others.
And, two, it is not secret information.
We i
I 10 [
don't intend it to be secret.
We would not be giving it if 0
we thought it needed te be secret.
Secondly, within the next 11 i
l 12 l day or so someone will give you, Bill, a call, and add the
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additional docket number or date of filing of the DOL that 13 g 4
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Billie talked about.
15 And the third is, I want to be clear that the 16 i depositions, both today and the one a week ago Monday, do not 17 represent a full statement of either the factual or the legal 18 l bases for our allegation, for our assertion of the i
i 19 attorney-client privilege or the attorney work product 20 privilege.
We did not ask the questions.
We answered the 21 questions that were asked to us within the full extent 22 ln possible.
Some answers that we wished to give we were told l
23 l
not to give and we didn't.
j l
l rI 24 And we have avoided doing that at this deposition 25 [
so we wouldn't have the same hassle that we had at the last
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2:i And lastly, penultimately, Ms. Garde'will make' l
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available to you, if you want to'make a copy of it, her-l 1
4
' transportation chit for this trip.
Have you discovered from I
'5 the district court what the --
6 MR.-PATON:
Thank you.
l i
7 MR. ROISMAN:
We are handing that over.
This does t
8:
not have to be an exhibit.
i Y
l 9'
MR. PATON:
I am -- I have attempted to expedite 10 the claim and that is in process and this will follow 11' immediately.
12 MR. ROISMAN:
Fine.
I 13 lj MR. PATON:
I have been advised that the witness 14
. fee is $30 and that the source for that is, the authority for p l
15 i that is 28 USC 1821.
16 MR. ROISMAN:
If you tell us that is it, that is l
17 it.
f 18 MR. PATON:
That is what I have been advised, 19 MR. ROISMAN:
Lastly, I want to reemphasize again l
20 on behalf of Ms. Garde, who is asking me to do this really on l l
21 behalf of her clients, beyond the game playing, beyond all of l
l f
22 the machinations of the lawyers, there really are some j
I I
f 23 extremely serious safety concerns that these people have.
i l
k 24 GAP and these people have no interest in making a contest and I
25 tried, I think, in every reasonable way to avoid making a i
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contest out of this.
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l 2i They have-legitimate concerns about.the regional li 3'l
-office.
The Commission may not agree with those concerns, 4
you guys may not agree with those concerns.
But you should
~5 understand how deeply these employees feel about it.
I would j j
l 6
hope that without anybody having to stand up and do any mea 7
culpas, there would be some way that some rational people i
8 could step into this process and say, let's back off before-(
9 we end up with a national nuclear attack and get these
.f 10 allegations into the hands of some people who these workers 11' can have confidence in, will not do to them what they fear 12-has been done to them, and let them get on with putting that 13 information in storage, that HP&L at the appropriate time can i.
.14 Yd get on with doing what needs to done, i
15 We are aware, and I notice that Mr. Paton is a
16 giving us a copy, of the fact that the Commission has added l
I n
17 some new staff people to the Region 4 office.
You must 18 understand that that is not the equivalent of knowing that 19 those new staff people, one, will correct the problems that 20 were there, two, they will throw out the people who were l
l 21 responsible for them existing; and while we welcome anything i
]
22 the Commission wants to do to clean up the region, if the 23 purpose here, and I think it is and should be on both sides, 24 to get these matters dealt with quickly rather than slowly, I
1 25 to not wait for six months to see if the regional office can d
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'get itself'back together, that moving with either existing
.l 2l special investigative' units that the Commission has, i l 3 h Ms. Garde today has indicated that Mr. Calvo is someone.who d
4 she-would feel comfortable recommending.to her clients that 5
they talk to if.Mr. Calvo had the license and authority to do 6-
'the. job right-and were not himself depending upon using as-7l our, as her clients perceive it, the tainted Region 4 people.
8' And she wants to add to that, but the bottom line 9,
is, we are not trying to test something here.
This is not an h
10 ]
attempt to find out who is tougher or who is stronger.- If we 11 had such a motive, we couldn't possibly carry it out in the i
12' name of these clients and their interests.
Their interest is.
13 q much more limited and more serious than such a thing as 14l that.
They don't want this plant to run until its safety lj 15 [ problems are addressed, and their experience tells them that 16 they are not going to be addressed if we use the only 17 channels the agency is now offering.
And we are inviting the i
18 agency to help us solve this problem which is ours, yours, 19 and HL&P's.
It is not just one party's.
l 20 And Billie wants to add something.
21 THE WITNESS:
I just want the record to be very i
i 2,2 clear that between January and May, when Mr. Stello issued I
lthesubpoena, I made every possible attempt to get the NRC to 23 j
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24 put together some type of independent team, and I want the 25 record to reflect that I agreed to do whatever posturing was d
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necessary to let Mr. Stello and Mr. Martin have their
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'l 2 d,! positions publicly defended.
And I want that on the record.
3 Because I understand that you have a bureaucratic interest in 4l not letting a public interest organization appear to be i
5l running your agency.
But I have an interest to these 6'
clients.
And these clients have a concern about these 7l plants.
l
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8q As I was going through all of the materials in
!i 9 h preparation for this deposition, I was overwhelmed with how 10 h serious this is again.
This is real serious.
And this has H
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11 l got to get into the hands of somebody that has the capability tj j
and the competence to review these allegations.
If you want 12 I
i 13 J to make an issue out of this and take this to court and get h
14 '
some kind of decision, fine.
We are already into the process i
15 and we can keep going.
But this is serious stuff.
And I l
16 l want the Commission to know that.
l 17 Thank you.
0 18 MR. ROISMAN:
That is all we wanted to say.
19 (Whereupon, at 2:53 p.m.,
the deposition was 20 concluded.)
21 l
22 U
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BILLIE P. GARDE r
1 24 25 i
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CERTIFICATE OF OFFICIAL REPORTER'
,...(
.This is: to ' certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION-in the matter of:
NAME OF PROCEEDING:
HOUSTON LIGHTING AND POWER COMPANY (South Texas Project)
DEPOSITION OF BILLIE P.
GARDE (Continued) i DOCKET NO.:
50-498; 50-499 PLACE:
BETHESDA, MARYLAND DATE:
WEDNESDAY, AUGUST 5, 1987 were held as-herein appears, and that this is the original transcript thereof for the file of.the United States Nuclear Regulatory Commission.
F
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(sigt) A (8%.
-E (TYPED)
REBECCA E.
EYSTER Official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation
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