ML20235K910
| ML20235K910 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 05/08/1987 |
| From: | Garde B GOVERNMENT ACCOUNTABILITY PROJECT |
| To: | Martin R NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION IV) |
| Shared Package | |
| ML20235K715 | List: |
| References | |
| FOIA-87-467 NUDOCS 8710050272 | |
| Download: ML20235K910 (3) | |
Text
O Y
{.
}
GOVERNMENT dCCOUNTADILITY PROJECT j p./
f "I /, h',^(202) 232 8550
/
1555 Connecicut Avenue, N.W., Suite 202 3
[e l
" /oshington, D.C. 20036 1
h00 dm3 ~
4 May 8, 1987
\\r.
/.' L Robert D. Martin, Administrator U.S. Nuclear Regulatory Commission Region IV 611 Ryan Plaza Drive, Suite 1000 Arlington, Texas 76011 R'E Allegation No. 87-A-007
Dear Mr. Martin,
Last week two of my clients received a letter from Mr.
Mark Emerson of your office.
The letter included an excerpt
{
from Insepction Report 50-498/499-38, dated March 26, 1987 s
and signed by Mr. R.G. Taylor.
The letter from Mr. Emerson states that it refers to "our inspections into your technical concerns regarding the South Texas Project."
It goes on to concludes
(
We have benefited from hearing about your concerns j
and feel that our actions in this matter have been j
responsive to those issues.
We take our safety l
responsibilities to the public very seriously and I
will continue to do so within the bounds of our lawful authority.
j This letter goes to new lengths in perverting the image l
of Region IV as a competent and unbias regulator.
l First, Mr. Emerson has never talked to or interviewed either Mr. Hodges or Mr. Garcia.
He has no idea of whether they have any technical concerns or not, and if they do, he i
has no idea of what they are.
Second, the information that Mr. Hodges or Garcia had any concerns or problem with the South Texas project could have only come from Houston Light and Power or EBASCO, or through the SAFETEAM.
In either case it i
is clear that the version of facts that the NRC received has nothing to do with the facts as known to Messrs. Hodge and Garcia.
That might be of some concern to an inspector that had any commitment t.c a search for the truth or a respect for the accuracy l
of his work.
Since the inspection report is signed by Mr.
R.G. Taylor, however, we are not surprised that the conclusion is a statement that serves the utility regardless of the facts.
I I
Fo1 A-67-%7 B7100$0272 870930
-- g 9$
(
RUBINTOB7-467 PDR 4
- a..,.
Robert D. Martin Page two I
It was our experience with Mr. Taylor at Comanche Peak and Waterford that convinced us that the reliability of his conclusions on any subject werequestionable.
Mr. Taylor has demonstrated a long history of resentment to employees who have any safety concerns and a penchant for relr asing inspection e
report findings that bear no resemblance to :he factual matters that he was to investigate or inspect.
Neither the letter nor the inspection report are accurate or based on anything other than information provided by the utility.
In this case we believe that the utility prompted the entire issue in order to have an NRC finding to utilize in the Department of Labor cases of Messrs. Garcia and Hodges.
Although we are not surprised by that either we are a bit offended that Region IV would write a letter with such blatantly false information.
I have already brought this matter to the attention of the Executive Director's office.
I have also filed a Freedom of Information Act Request on this issue, a copy of which is enclosed for your office.
Please process this FOIA as soon as it is received in your office.
Sincerely,
( WN Q
Billie Pirner Garde Director, Mid-West Office cc:
V. Stello J. Hodges R. Garcia
(
//
f(
,, [%j -
h UNITED STATES -
NUCLEAR REGULATORY COMMISSION y
.E WASHINGTON, D. C 20555 -
5 l
F p
....+
l l
Agreement between Billie P.
Garde and the U.S.
Nuclear Regulatory Commission (NRC) with respect to the attached subpoena:
(1) Billie P. Garde has indicated an intent to file a motion to quash the subpoena.
She agrees to file the motion not later than close of business, Friday, May 29, 1987.
She agrees not to challenge service of the subpoena.
(2) NRC agrees to continue the appearance date from Tuesday, May 26, 1987 to 14 days after the decision with respect to the motion to quash, unless the parties agree on an earlier date.
Anthony Z. Roisman (date)
Attorney for Billie P. Garde
< } aCn 92)2?
William D. Paton (date)
Attorney for NRC
(-
FoI A %7 F8 x
~m_m-~
~
~
~ ~ _ ~
_~
,4.
s NUCLEAR REGULATORY COMMISSION i
C
(
In the rnatter of: Houston 1.ighting and Power Company
> DOCKET NO. 50-498 t
50-499 TO l'.s. Billie Pirner Garde Government Accountability Project 1555 Connecticut Avenue, fl.W.
Suite 202 Washington, D.C.
20036 YOU ARE HEREBY COMMANDED to appear at Room 6507, Nuclear Regulatory Commission, 7735 Old Georgetown Road, Bethesda, Maryland on the 26th day of May 1987 at 9:00 o' clock A.M. to continue as necessary for the purpose of testifying before NRC personnel concerning allegations of current and/or former enployees of the South Texas Project concerning i
the safety of the South Texas Project, as described in your letter of January 2J.13E7 to Messrs. Victor Stello and James l'attox, and any other allegations which you have received concerning the safety of the South
/
Texas Project, and to provide any records or other docunents in your
\\
possession or under your custody or control concerning such allegations.
/
ctor Ste
- o. J Executive Director for Ooerations
$uc$NRIoulatorv Comission Jh/
9 4, 1987
.inct a r.nidhpro
[
1rtu:raowt (301) 492-7619 On motion made promptly, and in any event at or before the time specified in the subpoena
'or compliance by the person to whom the subpoena is directed, and on notice to the party
[
.it whose instance the subpoena was issued, the Ccruission may (1) quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue, or (2) condition denial of the notion on just and reasonable terms.
Such motion should be directed to the Secretary of the Comission, Washington, D.C. 20555.
ED1 A-Sbn7
' 'o /ovc>YO//6 f-um F9
[,
initch 6tates of A111 erica NUCLEAR REGULATORY COMMISSION
{
in the nutter of: Houston Lighting and Power Company
> DOCKET NO. 50-498 50-499 TO i:s. Billie Pirner Garde Government Accountability Project 1555 Connecticut Avenue, fl.W.
Suite 202 Washington, D.C.
20036 YOU ARE HEREBY COMMANDED to appear at Room 6507, Nuclear Regulatory Commission, 7735 Old Georgetown Road, Bethesda, Maryland on the 26th day of May 1987 at 9:00 o' clock A.M. to continue as necessary for the purpose of testifying before NRC personnel concerning allegations of current and/or fomer employees of the South Texas Project concerning the safety of the South Texas Project, as described in your letter of January 2J,13E7 to tiessrs. Victor Stello and Janes l'attox, and any other allegations which you have received concerning the safety of the South
(
Texas Project, and to provide any records or other documents in your possession or under your custody or control concerning such allegations.
i f
ctor Ste o.J.
Executive Director for Ooerations heER7aulatorv Comission l'24cf 9 /2., I9 87
[
~
.1ack o nnidhorn u m n (301) 492-7619 On motion made promptly, and in any event at or before the time specified in the subpoena j
j
'or compliance by the person to whom the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the Comission may (1) quash or modify the I
subpoent if it is unreasonable or requires evidence not relevant to any matter in issue, or (2) condition dental of the motion on just and reasonable tems.
Such motion should be directed to the Secretary of the Comission, Washington, D.C. 20555.
l Fot A-9~?-4&7 y
F*l l
,)'
NEw.ux & -HOLTZINGER, E C.
sacs a wtww14 -
l$15 L STRE ET, N.W.
3r%.LJA. E Sata. sn soww t mosthw.t2.J1 DOUGLAS L. StaCSrono
"[$
WA SMINGTON, D.C. 2 003.
dAgD*
a
- " D 7
(---
J A DOURW4*i.sm
- CRtX
- FALLose g geg,,,
gg,ay,c,'ar= -
e 0,...... 0 0
- '4".'LR " Ot.
Oo'.b*t'i'..
Z',.",;%~^
Z'i'.'J:7 0'.A* A,n,.. "
"#"'t.fL.
.. u
.or, Am...
A $B COE. sR ItvAm C.";l'"e'".an M',%**L A.,
~,:." :,',';,*:
c.e',t.'s~.'
,,0 scoff A MARMAN sC$CPMC.37Wggg 3 AAS f,Oes ?
S*
mosterf LowtesSTEIN 4 SOT 415f7?EO Ne C &
mgastafS COMN gent 37 C BAvNARD. til w enm June 11, 1987 l
Samuel J.
Chilk, Secretary Office of the Secretary of the Commission U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
(
Re:
Houston Lighting & Power Co., et al.
South Texas Project, Units 1 & 2 Docket Nos. 50-498 OL, 50-499 OL
Dear Mr. Chilk:
Houston Lighting & Power Company (HL&P) is in receipt I
of two documents filed by the Governraent Accountability Project (GAP) on May 29, 1987:
first, a motion to quash a subpoena issued by the Commission's Executive Director for Operations 1
(EDO) to Ms. Billie Garde to appear and present information which Ms. Garde claims to have regarding the safety of the South Texas Project (STP) and second, a petition pursuant to 10 CPR S 2.206 l
regarding the STP.
HL&P urges the Commission to deny both the motion and the 2.206 Petition and to continue investigation of the allega-tions purported to be in the possession of Ms. Garde.
The Commission's obligations to protect the public health and safety require it to explore fully any allegations that there may be safety significant deficiencies in a nuclear power plant.
HL&P, has itself, actively sought to obtain GAP's cooperation in assuring that the allegations are investigated.
When the first press accounts of the allegations appeared, HL&P
[ O I A - N *- 4 N Qoutq/&
G'1-
=ll
\\
w z ')
i
, m NesxAd 6/HosTTworn, E C.
i 2
g SamueliJ..Chilk-I June:ll, 1987
- Page 2 j
1 l
con'tactedtMs. Garde and asked for her cooperation.
See Attachment #9a to GAP Motion to Quash.
Ms.-Garde identified a i
series of conditions and objections, and HLEP offered ta) modify
)
its investigation procedures to accommodate her demands.
Despite 1
repeated efforts by HL&P,.Ms. Garde persisted'in refusingsto provide'theCgmpanywithevenoneofherpurportedhundreds'of allegations. _/- Consequently, HL&P concluded that GAP had no l
intention of' identifying any allegations to HL&P or its independ-1 ent employee concerns program, the STP SAFETEAM, and. urged GAP to provide the allegations directly to NRC.
See Attachment to this letter.
i GAP'has also rejected voluntary cooperation with the
-NRC, arguing that the EDO and Region IV are not trustworthy- (all
]
are characterized as " proven and unrepentant miscreants")..
Motion at.3.
Nevertheless, Ms.: Garde has the duty to provide such information to the NRC (see Statement of Policy:
Handling.
of' Late Allegations, 50 Fed._ Reg. 11,030, 11,031 (March 19, 1985)), and'the NRC has the duty and authority to investigate the allegati6ns and determine. whether they raise valid concerns about the safety of STP. 2/
Such an investigation should-be conducted
{L utilizing all necessary investigative tools available to the l
l l
1/
Although Ms. Garde based her refusal on her distrust of HL&P's SAFETEAM program, HL&P has been commended by the NRC for'that' program [see SALP Board Report 50-498/86-19 and 50-499/86-18 for period July 1, 1985 through December 31, 1986 at pages 23-24] and a thorough NRC inspection of the STP SAFETEAM ' program found that the program is being properly implemented and, in particular, that confidentiality of the individuals was appropriately protected.
NRC 1hspection Report 50-498/85-18, 50-499/85-16, January 2, 1986.
l l
2/
GAP states that "the information provided to GAP is known by l
STNP management or has been raised through proper channels" 3
[ Attachment il to GAP Motion to Quash at paragraph 7] and L
that in each instance the GAP " client" had " raised a L
discrete concern or concerns to his management
. super-I vision.
SAFETEAM or the NRC.
[ GARDE Affidavit, i
4 1 4.a].
These statements and GAP's further statement that z
i "no licensing issues are being raised in this petition nor are we requesting the Commission to delay licensing at this time"
[Section 2.206 Petition at 19), indicate that the j
allegations are unlikely to identify significant L
deficiencies that have not been resolved.
Nevertheless, the NRC has a duty to conduct an orderly investigation of them.
b i
Nevxa & Hot.Tztwozg. E C.
Samuel J.
Chilk June 11, 1987 Page 3 Commission, including compulsory testimony and document produc-tion.
The Commission should proceed with this investigation in the manner it deems most appropriate.
l Motion to Ouash Aside from its condemnation of Commission officials who might investigate its allegations, GAP identifies two basic legal grounds for quashing the subpoena.
Neither is of any substance.
1.
The EDO Lacks Authority To Issue The Subpoena The Commission's authority to issue the subpoena is clear under Section 161(c) of the Atomic Energy Act.
The EDO has broad statutory authority to act on the Commission's behalf i
pursuant to Section 209(a) of the Energy Reorganization Act and l
the Commission's regulations (10 CFR S 1.40).
2.
The Information Sought By The Subpoena Is Privileged GAP claims that the information sought by NRC.is shielded f rom discovery because it is confidential attorney / client communication or constitutes attorney work product.
Neither claim provides a basis for quarhing the
]
subpoena unless it is proven that all relevant information in the possession of the witness is protected from discovery.
In Re Arthur Treacher's Franchisee Litigation, 92 F.R.D.
429, 437-40
)
(E.D. Pa. 1981).
It appears from the face of GAP's pleadings i
that Ms. Garde possesses information which is neither privileged nor protected from discovery.
Further, GAP's all encompassing claim of work product protection is insupportable.
I l
Ms. Garde argues that the attorney / client privilege serves as a complete bar to the enforcement of the subpoena, but her Motion to Quash and accompanying affidavit show that much of I
the information in her possession is not protected by the privi-lege.
First, it appears that a number of the individuals who l
provided information to Ms. Garde are not represented by her at all and, therefore, have no claim to any attorney / client privi-l lege.
Ms. Garde's January 20, 1987 letter to Messrs. Stello and i
Mattox states that " GAP currently either.epresents or is working with approximately 36 current and/or former employees of the South Texas Project."
(Emphasis added.)
Whatever is meant by
" working with," it obviously falls far short of any possible l
Newny & HoLTy ssor s. P. C.
Samuel J. Chilk i
June 11, 1987
)
f Page 4 attorney / client relationship.
Accordingly, at least some individuals have apparently provided information to her outside the attorney / client context.
l Second, where Ms. Garde has been " retained to represent employees in litigation against their employers and/or to provide advice.regarding disputes and potential disputes with their i
employers" (Garde Affidavit, 1 3), communications between these f
clients and Ms. Garde may, under certain conditions, be protected by the attorney / client privilege.
The privilege, however, does not extend to communications made by those employees who l
contacted Ms. Garde for.the primary purpose of investigating and I
reporting " safety concerns that they wanted pursued by the NRC."
{
.Id.
at 1 2.
The retention of Ms. Garde to investigate and report t3 the NRC safety concerns which the employee, for whatever reasons, chooses not to report himself does not constitute legal services.
The service provided by Ms. Garde in this vein is not i
any different than that performed by a lay investigator or detec-tive whose employer requests that his identity remain anonymous.
Non-legal services such as these are not protected by the attorney / client privilege.
See Underwater Storage, Inc. v.
United States Rubber Co.,
314 F.
Supp. 546, 548 (D.D.C. 1970).
Ms. Garde also argues that she is prohibited from disclosing the identity of her clients by her obligations under the attorney / client privilege.
Even assuming, arguendo, that the
-attorney / client privilege is applicable to her communications with these persons, Ms. Garde's contention is without merit and is contrary to the law.
The courts widely and uniformly hold, as a general principle, that the attorney / client privilege does not protect the identity of the attorney's client.1/
In re Grand 3/
The rationale for the general rule is a simple one:
i The existence of the relation of attorney and client is not a privileged communication.
The privilege pertains to the subject matter, and not to the f act of the employment as attorney, and since it presupposes the relationship of attorney and client, it does not attach to the creation of that relationship.
So, ordinar-ily, the identity of the attorney's client, or j
the name of the real party in interest, and the terms of the employment will not be considered as privileged matter.
i l
(
N. L. R.B. v. Harvey, infra, 349 F.2d at 904 (quoting Behrens v.
Hironimus, 170 F.2d 627 (4th Cir. 1948)).
1
\\
)
Newux & Hot.Tz!Noga, P. C.
i Samuel J..Chilk l
June 11, 1987
{
Page 5 Jury Investigation, 631 F.2d 17, 19 (3d Cir. 1980), cert. denied, sub nom. Tinari v.
United States, 449 U.S.
1083 (1981);
.i N.L.R.B. v. Harvey, 349 F.2d 900, 904-905 (4th Cir. 1965).
]
Finally, GAP claims a broad " work product" privilege for records or documents - in Ms. Garde's possession pertaining to the safety of STP.
She contends that all of these records and documents are protected from disclosure by the work product rule.
Contrary to Ms. Garde's assertion, however, the work product rule does not confer upon the subpoenaed records an absolute l
protection against discovery.
First, the rule applies only'to materials prepared in
)
" anticipation of litigation."
Allegations provided to Ms. Garde for purposes of securing an NRC investigation of individuals' concerns, rather than in connection with a potential Department i
of Labor proceeding, for example, are not provided in anticipa-tion of litigation and therefore are not protected work product.
- See, e.g., Coastal States Gas Corp.
v.
Department of Energy, 617 F.2d 854, 864 ( D. C. C ir. 1980).
Secondly, even if some of the information in Ms.
(.
Garde's possession is work product, it may nevertheless be discovered for " good cause" shown.
Given the strong public interest involved in a thorough, orderly investigation of potentially significant safety matters, there is good cause for requiring disclosure.
As stated by Ms. Garde's attorney (Mr.
Roisman) in a recent pleading on behalf of another client in the Comanche Peak proceeding:
The logical extension of [ Applicant's claim of I
work product protection) is that so long as a document is prepared with an eye to possible use in any litigation it and the materials and methodology used in preparing it can be with-held from disclosure to the NRC even though it contains information that is vital to the NRC in carrying out its health and safety func-tions.
Needs far less significant to the public than protection of life and health have been found to be suf ficient to compel produc-tion of documents prepared by attorneys or at their direction and under their control and even where the attorney-client privilege is i n~volved.
i Consolidated Interveners' Reply to TUEC's Opposition to Motion to I
Compel Ret Gregory Discovery (Sets 5 and 6) dated April 20, 1987 (citations omitted).
L
[
L Newxax & HotT3rxorn, P. C.
)
Samuel Ji Chilk 6
. June'11, 1987 Page-6 i '
Finally, to the limited extent that the work product
= rule applies at all, it would be limited to focuments (or portions thereof) which record the lawyer's thought processes and y
mental-impressions, and would not af fect the ability of Ms. Garde to.provideLtestimony in response ~to the subpoens.
Individual determinations regarding whether the attor-i ney/ client privilege or the attorney work product rule apply to.
the information sought by the. subpoena 'can best be made when Ms.
Garde testifiesiin response to the subpoena.
The Section 2.206 Petition The Motion to Ouash was accompanied by another document-addressed to the Commission, this_one styled as a petition pursuant to'10 CFR S 2.206 (GAP. Petition).
The GAP Petition reiterates the basic; arguments of the Motion to Quash (i'.e.,
that GAP has received certain " safety allegations" related to STP and that Region IV and Mr. Stello cannot be' entrusted with their investigation), and. requests that the Commission order a'special-investigation of the STP and direct that the. investigation team-(.
not include members from Region IV and not be under the supervision of Mr. Stello or his staff.
.Section 2.206(a) permits any person to file' a request for specified NRC Of fice Directors "to institute a proceeding pursuant to S-2.202 to modify, suspend or revoke a license,-or for such other action as may be proper.".The Petition must specify, among other things, the facts that constitute the basis i
for=the request."
The GAP Petition asserts that GAP has received a number of " safety allegations", but fails to specify any supporting facts.
GAP Petition at 1.
GAP cannot invoke the Section 2.206 I
process and at the same time refuse to provide any of the alleged facts which form the basis for the requested action.
- See, e.a.,
Duke Power Co. (Oconee Nuclear Station, Units 1, 2 and 77, DD-
~
79-6, 9 NRC 661 (1979).
A Section 2.202 proceeding might be appropriate only after completion of such an investigation, not before any facts are known or asserted.
This inadequate attempt to invoke Section 2.206 should not, distract the NRC from the basic issue of how to proceed in the face of GAP's refusal to disclose the " serious safety allega-E tions" allegedly in its possession.
GAP Petition at 1.
(
__ ___a
' NrenN.Sc HoLTzmota. P. C, l
Samuel J.
Chilk o
June 11,'1987 Page 7 i
e By.itt Motion to Quash and its Section 2.206 Petition, GAP is~ seeking to dictate to the Commission how it manages NRC resources.
It implicitly refuses to provide its allegations to the NRC'unless and until NRC agrees to GAP's terms regarding the manner in which NRC employees should be assigned to investigate them.
The Commission need not accede to such pressure.
It.has the authority to compel the disclosure of the allegations and to determine for itself how they should be handled.
If the. concerns expressed by GAP -- that the inability, unreliability.or incun.petence of Region IV and/or the EDO and his Staff will impede the investigation -- have any substance,-GAP will be free to point out deficiencies in the investigation after it is completed and to seek appropriate relief at that time.
GAP has made very serious allegations and has since refused to provide any specifics that can be investigated without further information.
We urge the NRC to investigate these allegations.
The testimony of Ms. Garde is a necessary and appropriate step in such an investigation.
Ms. Garde's claim
('
that she cannot testify because of her professional relationship l
to various unnamed individuals is not supported-by sufficient evidence-to meet her. burden of demonstrating that no relevant information can be obtained through her testimony.
Accordingly, i
ve urge that the Motion to Quash and the accompanying Section 2.206 Petition be denied.
Respectfully submitted, h
ack R.
Newman5 i
Attorney for Houston Lighting &
Power Company, Project Manager of the South Texas Project, acting herein on behalf of itself and the other Applicants, CITY OF SAN ANTONIO, TEXAS, acting by and through the City Public Service Board of the City of San Antonio, CENTRAL POWER AND LIGHT COMPANY and CITY OF AUSTIN, TEXAS
(
i
m a-w The Light I
Company s-n ugung mu m mim amon.1,x.,vvooi ai3>228 92ii April 6, 1987 T[?hDfPO{} G[P 7 Ms. Billie Garde Director of the Midwest Office N
APR 09 887 Government Accountability Project 3424 N. Marcos Lane Appleton, Wisconsin 54911
, ggg l
Newman & Holt 2inger, P.C.
Dear Ms. Garde:
In response to your letter of March 27, 1987, please be advised that Houston Lighting & Power Company is very skeptical that any further dialogue with GAP would be constructive. Although we are ready to utilize our SAFETEAM organization to perform investigations of any concerns related to l
nuclear safety or quality at the South Texas Project, we believe that protracted discussion with your organization is wasting valuable time that
]
could be better spent investigating such matters.
Your obvious 1cw regard for SAFETEAM, which is consistent with the manner in which GAP has criticized other nuclear projects, prompts us to
{
I again urge that you immediately share your concerns with the Nuclear Your letter suggests that you have sought " guidance" Regulatory Comission.
(
from the Nuc10er Regulatory Cocynission but "have not received a response".
That statement is puzzling.
In fact, you have received a response from Mr. Stello by letter of February 18,19E7 (available in the Nuclear Regulatory Comission public document room) in which you were assured of the availability of Nuclear Regulatory Comission resources to resolve issues That letter concluded that failing to bring forth your clients might raise.
infomation promptly "would not be in the best interests of assuring the prompt resolution of legitimate safety concerns".
Your letter states that Houston Lighting & Power and its contractors have been made aware of serious safety concerns through internal processes.
To the best of our knowledge, The innuendo is that nothing has been done.
every such matter brought to our attention er those of our principal contractors has been investigated and resolved or is the subject of a pending investigation. If you have information to the contrary, please tell us.
The statement in your letter concerning information obtained during discovery for the Goldstein case and and the conclusions which you have dFewn from that information are presumptuous at best. Contrary to your statement, a comparison of the interview transcript and the investigation report reveals that each of the issues raised during the interview were In understood, investigated, and conclusions drawn based upon the facts.When it l
any event, as you well know, the Goldstein case has been adjourned.
resumes later this year, the defendant wif1 present its case and a conclusion will be reached based upon all the evidence.
l Fo4-67-47 Wls Fl3
l Houston Ughting 4: Pow er Company
}
Ms. Billie Garde April 6, 1987 k
Page 2 I reiterate our suggestien that you try our'SAFETEAM system as rodified to meet your concerns with respect to any matter of potent.ial safety consequences.
In the meanti:c.P however, we are taking steps to request appropriate government officials to obtain from you or your organization information which could potentially affect the safety of the South Texas Project.
If such information exists and is furnished to us, we will spare no effort in pursuing its resolution.
In closing, let me add at the risk of being immodest, that the South i
Texas Nuclear Project is managed by experienced professionals of the highest integrity. Our concern for public safety is of paramount importance. Any suggestion by your organization to the contrary is not suppcrted by the record. Our concern for protecting the public and the plant. is demonstrated by our dogged determination to unearth weaknesses wherever they can be found and dealing with them. SAFETEAM is but one of many techniques that we utilize in that effort. While our SAFETEAM program is not perfect, I believe it to be among the very best in the country.
Very truly youJs, e
J. H. Goldberg
(
Group Vice-President, Nuclear l
JHG/JEG/sd cc:
Chairman L. W. Zech Commissioners K. M. Carr T. M. Roberts J. K. Ancistine F. M. Bernthai Exec. Dir.
Y.
Stello Reg. Adm.
R. D. Martin Dir. I 8.E J. M. Taylor Owners T. Y. Shockley A.
vonResenberg M. B. Lee
(
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
In the Matter of
)
)
BOUSTON LIGHTING & POWER
)
Docket Nos. 50-498 OL COMPANY, ET AL.
)
50-499 OL
)
(South Texas Project, Units 1 )
and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the letter to Samuel J.
Chilk from Jack R. Newman, dated June 11, 1987, have been served on the following individuals and entities by deposit in the United States mail, first-class, postage prepaid, or by arranging for messenger delivery as indicated by asterisk, on this lith day of June 1987.
Lando W.
Zech, Jr., Chairman
- David S. Rubinton*
U.S. Nuclear Regulatory Commission Richard E. Condit*
Washington, D.C.
20555 Government Accountability Project 1555 Connecticut Avenue, N.W.
Commissioner Thomas M. Roberts
- Suite 202
(
U.S. Nuclear Regulatory Commission Washington, D.C.
20036 Washington, D.C.
20555 Anthony Z. Roisman*
Commissioner James K. Asselstine*
1401 New York Avenue, N.W.
U.S. Nuclear Regulatory Commission Suite 600 Washington, D.C.
20555 Washington, D.C.
20005 Commissioner Frederick M. Bernthal*
William Paton*
l U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
)
Commissioner Kenneth M.
Carr*
U.S. Nuclear Regulatory Commission Jack R. Goldberg*
washington, D.C.
20555 office of the General Counsel f
U.S. Nuclear Regulatcry Commission Ms. Billie P. Garde Washington, D.C.
20555 Director of the Midwest Office Government Accountability Project Office of the Secretary
- 3424 North Marcos Lane U.S. Nuclear Regulatory Commission i
Appleton, Wisconsin 54911 Washington, D.C.
20555
(
.I E MN#
s
__ a 7/
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the matter of:
)
)
Houston Lighting and Power
)
Company
)
Docket 1:os. 50-498 OL
)
50-499 OL (South Texas Project, Units
)
1 and 2)
)
)
REPLY OF BILLIE P. GARDE, ESQ. TO THE NRC STAFF'S OPPOSITION TO MOTION TO QUASH AND DE FACTO OPPOSITION TO PETITION PURSUANT TO 10 C.P.R. 52.206 i
Anthony Z. Roisman, Esq.
1401 New York Avenue N.W.
Suite 600 Washington, D.C.
20005 (202) 628-3500 David S. Rubinton Richard E. Condit Staff Attorney, GAP 1555 Connecticut Avenue N.W.
Suite 200 Washington, D.C.
20036 (202) 232-8550 Dated:
June 25, 1987
[dO-h (l()
l' F \\ L-P\\4
~
~
~
+
l LI.
INTRODUCTION
'J Victor Stello, Jr.,
improperly subpoenaed Billie P. Garde, Esq., to testify before NRC personnel concerning confidential and privileged communications between Ms. Garde and her clients.
i
'In response, Ms. Garde moved 'to quash the subpoena and, i
through a concurrently filed S2.206 Petition, demonstrated an acceptable approach to the NRC's treatment of the subject matter of the subpoenaed information.
Specifically, this Petition requested the establishment of an NRC investigative unit i
independent of Mr. Stello and: Region ~IV, with which Ms. Garde's i
' clients would be willing to' share their concerns.
The NRC Staff responded to Ms. Garde's Petition and Motion by requesting the denial of the Motion.
However, the Staff failed to respond to charges of the misfeasance, malfeasance and Y
dereliction of duty of Mr. Stello and officials in Region IV.
Failure to raise a defense to these charges suggests that these charges have merit and confirms that they are properly before the Commission.
For the reasons set forth below, the Commission should quash the subpoena by granting the Motion or, in the alternative, set aside the subpoena and grant the Petition.
II.
THE ATTORNEY-CLIENT PRIVILEGE RAS BEEN ESTABLISHED A.
The affidavit of Billie Pirner Garde and the retainer agreement clearly establish an attorney-client relationship.
.In their answer, the NRC Staff claims that " GAP has not provided a sufficient basis on which the Commission could I
i _ __.
l
conclude that the attorney-client privilege protects any of the 4
information sought by the NRC staff."
Staff Answer at 10.
This argament is patently without merit.
The Staff recites Wigmore's elements for establishing the attorney-client privilege:
(1). Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3)1the communications relating to that purpose, (4) made in confidence.(5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.
4
'8 Wigmore, Evidence $2292 (McNaughton Rev. 1961).
t Ms. Garde accepts this characterization of the black letter law of the attorney-client privilege and asserts that she clearly meets each and every element as set forth therein.
First, the South Texas Nuclear Project (STNP) employees who
{
came to Ms. Garde sought advice regarding disputes and potential disputes with their employers.
(Garde Affidavit, 13).
Thece employees also sought advice on the proper handling of their allegations (Representation Agreement, 11; Affidavit, 13) and the protection of their jobs and future employment possibilities (Affidavit, 13).
Billie Pirner Garde is an attorney, and in that capacity Ms.
Garde is advising her clients, thereby meeting the second element.
(See generally, Representation Agreement and Affidavit).
The STNP employees who came to Ms. Garde communicated to her their concerns about the design, construction, management and the potential operation of the STNP in the hope of receiving advice k.
I l
from Ms. Garde on how best h
to handle these allegations within the l.[
NRC while protecting their employment status (Affidavit, 1 4 )..
i
'These communications clearly fall within the scope of Wigmore's l
tutrd element.
Further, it is improper for Mr. Stello to attempt to probe into the attorney-client relationship by commanding Ms.
Garde to. testify concerning the allegations made to her by STNP employees.
The communications for which the privilege is claimed were clearly made in confidence, satisfying Wigmore's fourth element.
1 The STNP employees would not speak to Ms. Garde without the understanding that the communications would be kept confidential.
(See Representation Agreement, 12 and see generally, Affidavit).
I Since it is the client's communications which are in issue, Wigmore's fifth element is clearly met as well.
(
The remaining elements merely follow from the establishment of the initial five elements and therefore no further analysis is needed.
Since the elements necessary to establish an attorney-client privilege have been met and the clients have not waived that privilege, the privilege attaches to the communications between Ms. Garde and her clients.
Nevertheless, the Staff asserts that it is unclear whether Ms. Garde was actually acting in a capacity to which the attorney-client privilege attaches.
In support of this assertion the Staff cites N.L.R.B. v. Harvey, 349 F.2d 900 (4th Cir. 1965) for the proposition that "notwithstanding a detailed affidavit by an attorney purporting to establish an attorney-client relationship, further facts unequivocally establishing the
! 1
1 character of the attorney's retainer were necessary to determine-( ~
whether the attorney-client privilege was applicable."
Staff i
Answer at 9.
Curiously, the Staff failed to indicate, even in a general sense, how Ms. Garde's retainer agreement or detailed affidavit make it unclear whether she was acting in her capacity as an attorney such that the attorney-client privilege attaches.
Harvey adds credence to Ms. Garde's. claim of privilege by recognizing that the attorney-client privilege attaches where, in order to furnish adequate legal services to the client, the legal services become indistinguishable from non-legal services.
Harvey at 907.
Therefore, even if it is found that some of Ms.
Garde's communications were not of a legal nature, as the Staff seems to suggest, the attorney-client privilege will remain in effect.
(
The Staff also questioned whether Ms. Garde could demonstrate "that the privilege would attach to all of the information she has gathered."
Staff Answer at 9.
The Staff cites no precedent for the notion that a demonstration of the applicability of the privilege needs to be made for all of the information obtained by Ms. Garde from her clients.
However, to the extent that it is necessary to make such a showing, Ms. Garde has already done so.
The Commission has already been presented with Ms. Garde's affidavit and representation agreement.
These documents plainly demonstrate that the information Ms. Garde received from her clients was only communicated to Ms. Garde in an attorney-client context.
Finally, the Staff questions the applicability of the I
attorney work-product doctrine in light of Ms. Garde's 4-I
Representation Agreement which states that Ms. Garde's services
(
to her client "do not include litigation" unlens otherwise provided for.
This agreement is the manifestation of an understanding reached between Ms. Garde and her clients.
It was understood that the term " litigation" as used in this agreement, l
referred to actions in the courts or before other administrative l
tribunals.
Ms. Garde's agreement included the "do[es) not include litigation" provision to underscore the fact that she was representing her clients beyond the level of NRC proceedings.
not The NRC rules (10 C.F.R. Part 2) and actions (e.g. the caption of j
the present matter) suggest that they construe Ms. Garde's representation of her clients before the NRC for the purpose of pursuing their allegations, to be in the nature of an adjudication.
Ms. Garde's agreement clearly applies to the I
representation of her clients in NRC proceedings and'is therefore afforded the full protection of the attorney work-product doctrine.
III. NRC-STAFF HAS FAILED TO DEFEND THE CONDUCT OF MR. STELLO AND REGION IV The trustworthiness of Mr. Stello and Region IV to l
1 competently investigate allegations of workers and provide protection to those workers is clearly an issue relevant to Ms.
'8 Garde's Motion to quash Mr. Stello's subpoena, and to GAP's Petition pursuant to 10 C.F.R. 52.206 (Petition).
The NRC Staff's position that ".
. compliance with the subpoena would in no way compromise the health and safety of the public" (Staff
(
l I
' 1
Answer at 4) is a conclusion void of substance or analysis.
The
(
issue of trustworthiness and regulatory competence is a factual one which was raised in our memorandum in support of the Motion To Quash (Memorandum) and in GAP's Petition.
Our position with respect to the competence and trustworthiness of Mr. Stello and Region IV has been summed up as follows:
Mr. Stello's public and private support of Region IV's worst offenders and his failure to take any corrective action regarding the agency employees who have actively engaged in conduct that is a violation of NRC Regulations and practices is understandable only if he condones such activity.
As a result of Mr. Ste11o's repeated failure to demonstrate any acknowledgement of the NRC's own regulations regarding the processing of allegations and interfacing with alleger, while simultaneously being the de facto operative of the utility from which the workers need protection, requires that
[Ms.
Garde)
. comply with her professional obligation to her clients and protect them from Mr. Stel3o and Region
(
IV.
Memorandum at 7.
Neither Mr. Stello nor Region IV can be expected to use any information to protect the public's health and safety.
In fact, it is likely that any information released to Mr. Stello on Region IV would either be covered up or inappropriately shared with STNP officials.
Id. at 13.
Furthermore, as we carefully articulated in our Petition, Region IV has had a history of misfeasance and malfeasance in which Mr. Stello has been a participant.
See Petition at 4-15.
Requiring Ms. Garde to submit potentially significa.nt information concerning the safety of the STNP to Mr.
Stello or Region IV would result in a cover-up or an inadequate investigation.
Any subsequent investigation, even if properly
(
l '
conducted, would be unlikely to find the serious safety problems because of the damage done by an improper investigation Additionally, the identities, and therefore the careers, of the clients involved would be placed in jeopardy, judging from past performances of Mr. Stello and Region IV.
The NRC Staff argues that
" failure of the NRC to obtain thej information could compromise public health and safety if the allegations raise health and safety issues that are substantiated."
Staff Answer at 4.
However, the Staff's argument misses the point.
We agree that the NRC must review all allegations pertaining to the STNP.
In fact, it is clearly NRC's responsibility to do so.
The issue here is to whom should the workers' allegations and information be released?
We do not understand the Staff's argument to mean that the information in
(
question should be investigated by persons within the agency who lack the competence and commitment to take proper corrective action.
Both Mr. Stello and Region IV have received extraordinary criticism from sources within NRC as well as outside the agency, therefore calling into question their ability to protect the public health and safety.1/
IV.
AN EVIDENTIARY HEARING IS REQUIRED TO PROPERLY RESOLVE THIS MATTER As pointed out in their brief, it is the Staff's position that there are factual issues regarding the applicability of the attorney-client privilege and work product doctrine to Ms 1/
See generally, Petition at 4-15 and Appendicles G-M.
( _ _ _ _ -. - " - - - - ' - ' '
Garde's response to Mr.
(
Stello's subpoena.
See Staff Answer at 8-11.
The Staff suggests that the proper way to resolve any questions involving Ms. Garde's attorney-client would be to depose her.
relationships Staff Answer at 10.
Regarding the applicability of the attorney-client privilege and work product doctrine the Staff stated:
. The Commission would have to evaluate the facts surrounding the creation of the documents for which th privilege is asserted, in order to strike a balance between the need for information and the need to e
provide confidentiality of attorneys' files.
forming the necessary prerequisite for such a The facts Commission has before it are conclusory statementde a
the counsel.
(footnote omitted) s of In conclusion, the Commission does not have en facts before it at this time to rule on applicability ough of either the attorney-client privilege of y
work product doctrine, and such rulings are(unne)ce sic the to its determination of the Motion before it ssary Staff Answer at 11.
Contrary to the Staff's conclusions, sufficient information, not rebutted or challenged in any substantive manner by the Staff, exists in Ms. Garde's affid and retainer agreement avit for the Commission to find that the attorney-client privilege and work product doctrine are applicable here.
See discussion, supra, at 1-4.
The Staff's suggestion that Ms. Garde be depos d i e
clarify her attorney-client n order to relationships is clearly inappropriate.
Mr. Stello's authority does not cover the investigation of the attorney-client relationshipThe subject of the subpoena is information pertaining to the safety of the STNP.
Furthermore, neither Ms. Garde nor any of her clients are _ - - - - ' " - ' - ' ' - - " -
l investigate worker allegations and protect the public health and
(
safety.
For these reasons, the Commission should quash the subpoena by Mr. Stello of Ms. Billie Garde, and grant the Petition.
Respectfully submitted, Y
M
'/
Anthony Z1 Roisman 1401 New York Avenue N.W.
Suite 600 Washington, D.C.
20005 (202) 628-3500 Rachard E. Condit David S. Rutinton GAP Staff Attorneys 1555 Connecticut Avenue N.W.
Suite 200
(
Washington, D.C.
20036 (202) 232-8550 Dated:
June 25, 1987 069a01 1 _ _ _ _ _ _ _ _ _ _ _ _ - _ _ - - - _ - _ _
CERTIFICATE OF SERVICE r
certify that a copy of the foregoing document was served I
upon the addressees listed below.
Service" was accomplished by hand delivery on June 25, 1987.
NRC Commissioners:
L.W. Zech, Jr., Chairman Thomas M. Roberts James K. Asselstine Fredrick M. Bernthal Kenneth M. Carr U.S. Nuclear Regulatory Commission 1717 H Street N.W.
Washington, D.C.
20555 Bill Paton, Esq.
U.S. NRC 1717 H Street N.W.
Washington, D.C.
20555 Secretary, U.S. NRC 1717 H Street N.W.
Washington, D.C.
20555 Jack R. Goldberg, Esq.
U.S. NRC 1717 H Street N.W.
Washington, D.C. 20555 Mary E. Wagner, Esq.
U.S. NRC 1717 H Street, N.W.
Washington, D.C.
20555
/
p g..
- w 1
David S. Rubinton
'~
{
I
~ - - - - - - - - - - - - - - - - - - - - - - ' ~ ~ ' - - - - - - - '
4Q]
.,9
%t 8c
(
l f/
)/ }f{
UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION
/2 fp-COMMISSIONERS:
Lando W. Zech, Jr., Chairman Thomas M. Roberts Frederick M. Bernthal y,
Kenneth M. Carr s
)
In the ratter of:
)
)
Houston Lighting and Power Company
)
Docket Nos. 50-498
)
50-499 (South Texas Project)
)
)
MEMORANDUM AND ORDER
(
On May 20, 1987, the NRC Executive Director for Operations (ED0) subpoenaed Billie P. Garde, Esq. of the Government Accountability Project (GAP) to testify before NRC personnel concerning safety allegations of current and former employees of the South Texas Project and any other safety allegations regarding the South Texas Project. The subpoena further requested Ms. Garde to provide any records or documents regarding the allegations.
Ms. Garde now moves to quash the subpoena, arguing that compliance with the subpoena would compromise the public health and safety, the EDO has no authority to issue the subpoena; and the attorney-client privilege and work product doctrine preclude divulgement of the information requested. Movant also requests oral argument on the motion.
t Y/.
For 3-e, -%,
N
~8?^ 8'9e6 F13 11 L
4 2
..I Houston Lighting and Power Company and the NRC Staff filed responses to the motion on' June 11, 1987.
Ms. Garde also filed a reply to the NRC staff's response on June 25, 1987.
.I.
Background
Beginning in January 1987 Ms. Garde informed the NRC that GAP had coninenced an investigation into allegations concerning the safety of the South r
Texas nuclear project. According to Ms. Garde, GAP received these safety l
allegations from approximately 36 current and former employees of the South Texas Project. GAP informed the NRC that upon completion of the investigation it would issue a public report, but in the interim it would not advise its clients to provide the allegations to the NRC Region IV office because of its I
lack of confidence in the office's ability to comply with regulatcry requirements. Thus GAP advised the NRC that unless it was willing'to provide independent inspectors to process the allegations, GAP would turn over the allegations to the State Attorney General's effice, congressional committees, and other regulatory and municipal bodies interested in ensuring the public safety at the South Texas plant.
- The subpoena was issued in support of the staff's responsibility to pursue and resolve allegations bearing on NRC licensed activities, but was not issued in connection with a..pending licensing or enforcement adjudication on the South Texas Project. Thus, the Houston Lighting & Power Company is not, strictly speaking, a party to the dispute over the subpoena and has no legally cognizable interest in its enforcement. Nonetheless, the Commission has i
I considered the utility's views insofar as they may aid the Commission's l
resolution of the issues.
L
3 1
(
Correspondence followed between the NRC Executive Director of Operations (ED0) and GAP regarding allegations management.
Essentially GAP desires an investigation of the allegations by an NRC employee or task force independent of Region IV. The E00 is of the position that the South Texas Project is located in Region IV, and the personnel in that region can adequately investigate the allegations; and in any event, GAP should turn over the allegations to the agency so that the agency can determine the proper handling of them. After repeated requests for the infonnation, the E00 issued a subpoena requesting Ms. Garde to testify and produce documents regarding the South Texas allegations on May 26,1987 at 9:00 a.m. at the NRC, Room 6507, 7735 Old Georgetown Road, Bethesda, Maryland.
On May 22, 1987, attorneys for Ms. Garde and the NRC entered into an agreement. Ms. Garde agreed to move to quash the subpoena by Friday, May 29, 1987, and the NRC agreed to continue the
(
appearance date for the subpoena from May 26, 1987 until fourteen days after the decision on the motion to quash, unless the parties agreed on an earlier date.
II. Analysis A.
Compliance With the Subpoena Would Compromise the Public Health and Safety.
Ms. Garde cites no authority for her first argument which is based on her belief that Region IV and the EDO could not competently investigate the allegations. Compliance with the subpoena would not compromise the public health and safety.
In fact, the converse is true.
Failure of the NRC to obtain the allegations wot.ld more likely compromise the public health and safety, particularly if the allegations are substantiated. Moreover, the l
I
d 4
+
y 1
agency has demonstrated its comitment to protect health and safety through the rigorous and' repeated efforts of the ED0 to obtain the allegations, which culminated in issuance cf the subpoena.
)
B.
ED0's Authority to Issue the Subpoena l
Contrary to Garde's assertions, the EDO clearly had the authority to issue the subpoena.
The Commission is authorized to issue subpoenas pursuant i
to 42 U.S.C. 2201(c) (section 161c of the Atomic Energy Act).
It further has
{
the power to delegate this authority consistent with 42 U.S.C. 5849 (section 209(b) of the Energy Reorganization Act) and 10 C.F.R.1.40, which provide that the E00 shall perform such functions as the Commission may direct.
See I
also Atomic Energy Act i 161n, 42 U.S.C. 2201(n). The Comission delegated
(
the authority to issue subpoenas to the EDO in 1982. This delegated j
responsibility has been incorporated in the NRC Manual Chapter 103-0214 which provides: "The [E00],... is specifically responsible for:... issuing subpoenas under Section 161c of the Atomic Energy Act of 1954, as amended, where necessary or appropriate for the conduct of inspections or investigations." Thus, Garde's argument that the ED0 lackeo authority to issue the subpoena is without merit.
C.
Attorney-Client Privilege and Work Product Doctrine Ms. Garde claims that she can not comply with the subpoena, because the withheld information is protected by the atterney-client privilege and the work product doctrine. The Comission does not reach these issues, because g
1
5
(
Ms. Garde has not provided sufficient factual information in her affidavit, retainer agreement, or other supplemental documents upon which the Commission can make the determination that all the relevant information that the subpoera requests is protected by the attorney-client privilege or work product doctrine.
See N.L.R.B. v. Harvey, 349 F.2d 900 (4th Cir.1965).
The Commission notes however, that based on a review of the information that Ms. Garde has provided, on its face, it appears that she possesses at least some information that is not withholdable under the attorney-client l-privilege or shielded by the work product doctrine. The attorney-client privilege applies if:
to whom the communication was made (a)ge is a client; (2) the person (1) the asserted holder of the privile is a member of the bar of a court, and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of opinion on law or (ii) purpose of securing (primarily either (i) an strangers (c) for the
(
legal services or iii) assistance in some legal proceeding, and not (d) for the purpose of comitting a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
Eagle-Picher Industries, Inc. v. United States, 11 Cl. Ct. 452 (1987). The work product doctrine is a qualified privilege which protects documents and tangible items prepared in anticipation of litigation or trial. M.; Fed.R.
Civ. P. 26(b)(3); 10 C.F.R. 2.740(b)(2).
Fact work product is discoverable upon showings of substantial need and inability withcut undue hardship to obtain the substantial equivalent of the materials by other means. M.; see Hickman v. Taylor, 329 U.S. 495, 510-12 (1947); In re Murphy, 560 F.2d 326, 334 (6th Cir. 1977). Opinion work product (mental impressions, conclusions, cpinions, or legal theories) may be discoverable upon extraordinary justification. See Hickman, 329 U.S. at 513; In re Murphy, 560 F.2d at 336.
As the utility points out, Ms. Garde indicated in her January 20, 1987 letter to the E00 and the Attorney General for the State of Texas that GAP
6 1
l i
I either represents or "is working with" approximately 36 current or former employees of the South Texas plant. Attachment 2 to Garde's Motion to Quash.
i Obviously, the attorney-client privilege cannot attach.if there is no client.
Thus, the presumption is that communications with the employees that GAP "is working with" as opposed to representing, are not a part of or protected by the attorney-client privilege.
1 Furthermore, it is unclear from the facts before the Comission whether Ms. Garde was acting in a legal capacity when she gathered allegations from employees for the purpose of having them reviewed by the NRC.
If she was not acting in such a capacity, it would be questionable as to whether the comuni-t cations made at that juncture would be protected by the attorney-client privilege.
Also, Ms. Garde seeks to withhold the identities of her clients.
Assuming arguendo that the attorney-client privilege applies, generally the identity of an attorney's client is not considered privileged.
N.L.R.B., 349 F.2d at 904. Moreover, it is difficult to determine from the information thus far provided whether the privileged nature of the information, if any, has been waived, thereby terminating the privilege.
See Artesian Industries, Inc.
- v. Department of Health and Human Services, 646 F.Supp.1004,1008 (D.D.C.
1986), citing In re Grand Jury Investigation of Ocean Transportation, 604 F.2d 672, 675 (D.C. Cir.1979), cert, denied sub nom. Sea-Land Service, Inc. v.
United States, 444 U.S. 915 (1979).
It appears that GAP intends to reveal at least some of the infomation when it releases its public report.
The Commission also lacks sufficient data to determine whether the work product doctrine applies to all documents requested under the subpoena. The Commission would need more information regarding the circumstances surrounding the creation of each document in order to make that determination.
- Also, since it is unclear whether the attorney-client privilege is applicable, it is
7 i
I eq; ally unclear whether logically any of the dccuments could be attorney work product.
Other questions include whether Ms. Garde prepared the documents in f anticipation of litigation and whether work product documents, if any, are I
I discoverable under the substantial need exception.
See 10 C.F.R. 2.740(b)(2);
Fed. k. Civ. P. 26(b)(3).
.The Commission's view is that the more appropriate time for Ms. Larde to j
assert the attorney-client privilege and work product doctrine is when Ms.
I Garde testifies regarding secific questions posed, in response to the subpoena.
At that time she may invoke privileges which she believes are applicable and explain their relationship to the information sought by the j
i Comission.
Her assertion of them at this time is premature
/
Therefore, the motion to quash the h subpoena and the request 7-/P for oral argument are denied.
Unless the parties agree otherwise, Ms. Garde shall appear 14 days after the date of this decision at Room 6507, 7735 Old Georgetown Road, Bethesda, Maryland at 9:00 a.m. tc testify and produce documents concerning allegations bearing on safety at the South Texas plant, pursuant to the May 22, 1987 agreement between Ms. Garde and the NRC.
It is so ORDERED.
For the Commission SAMUEL J. CHILK q
Secretary of the Commission Dated at Washington, D.C.
this day of
, 1987.
/fg
/N u
_"" " C Q
.:. J REPRESENTATION AGREEMENT
(
,-(Client), residing.at hereby. agree to retain the I
Government Accountaollity Project (GAP) to perform legal. services and represent'me~1n the matter of my. allegations regarding i
problems at the South Texas. Nuclear Project (STNP).
For the purposes of"L this agreement these services do not include litigation, unless.specifically stated, or provided for in a previous or subsequent written agreement.
o l.. Staff Attorneys. Billie Pirner Garde and Richard E.
Condit.will.be r,esponsible for representing the Client in this
}
, matter.
The Client will accept the representation of other members ~of'the GAP staff as deemed appropriate.
The Client
(
authorizes the responsible staff attorneys to do all things reasonably necessary or desirable to ensure that the concerns of the Client regarding the STNP will be investigated by competent government officials.
These services shall be. rendered pyro bono.
o The Client agrees that s/he will not waive any rights to recover attorneys' fees.if.provided for by statute or regulation.
2.
The Client understands that GAP will keep the identity of the Client and the information provided regarding the South l
~
Texas Nuclear Project confidential.
GAP will only release the i
Client's identity or information with the oral or written
\\
approval of the Client.
However, the Client understands that i
once his/her identity or information is released to any source, GAP will no longer be responsible for maintaining the Client's
(
FoI A %^T F %-
,m v
Representation Agreement Page Two I
)
confidentiality.
GAP will not be responsible for maintaining the confidentiality of Client once the Client discloses his/her J
'information or identity to any other person.
3.
GAP understands that the Client does not want Region IV of the Nuclear Regulatory Commission (NRC) to investigate this matter due to the Client's belief that Region IV officials are
)
incompetent or unwilling to investigate the Client's concerns.
4.
GAP understands that the Client does not want Victor Stello, Jr. (NRC, Executive Director for Operations) to investigate or participate in an investigation or review of his/her allegations.
It is'the belief of the Client and GAP that Mr. Stello approves of Region IV's actions.
k 5.
GAP understands that it is the Client's goal to have her/his allegations properly and fully investigated by a competent governmental body.
6.
GAP will advise the Client of the results of any investigation into the Client's allegations as the results become available.
7.
The Client is retaining GAP in this matter because s/he is sincerely concerned about violations of regulations and/or
)
procedures at the STNP.
To the best of the Client's knowledge, all of the information provided to GAP is known by STNP
' management or has been raised through proper channels.
f-8.
The Client agrees to cooperate fully with the i
1 i
l
_2 I
j
...?.
Representation Agreement Page Three responsible staff attorneys and to respond pr'omptly to telephone calls and correspondence.
Client agress to promptly notify the responsible staff attorney of any change in home or work address or telephone number.
Client authorizes GAP and its attorneys to review any and all files and records, wheresoever situated, in the conduct of this representation.
Client acknowledges receipt of a copy of this agreement.
Client Dated:
Accepted on Behalf of the Government Accountability Project by:
~ Louis Clark Executive Director (079a03) 3-
____ _ _ - - - - - - - - - - - - - - - - - - - - - " - - - - - - - - - - - - - - - - - ~ - - - - - - - -