ML20235R567

Response of Texas Util Electric Co to Case Motion to Compel (870915).* Util Should Supply Answers to Consolidated Intervenors Interrogatories & Request for Production of Documents to Applicants.Certificate of Svc Encl

ML20235R567
Person / Time
Site:	Comanche Peak
Issue date:	09/30/1987
From:	Stillman R ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#487-4533 CPA, NUDOCS 8710080108
Download: ML20235R567 (6)

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90CKC1E Filed: Septemb,0 1987 UNITED STATES OF AhlERICA $ P4 :05 NUCLEAR REGULATORY COhlhilSSION (Ch BRAhCH k hI[! M" before the ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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TEXAS UTILITIES ELECTRIC ) Docket No. 50-445-CPA COMPANY, et al )

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(Comanche Peak Steam Electric )

Station, Unit 1) )

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RESPONSE OF TU ELECTRIC CO. TO CASE MOTION TO COh1PEL (9/15/87)

This Response is submitted on behalf of TU Electric Co. ("TU Electric") in response to the portion addressed to it of " CASE's Motion to Compel Applicants to Supply Complete Answers to Consolidated Interveners' Interrogatories and Request for Production of Documents to Applicants (6/19/87)" (" Motion to Compel").1 Two aspects of CASE's motion pertain in some fashion to TU Electric. First, CASE suggests in passing that documents referred to in Tex-La's response might be .

1 produced pursuant to a protective order that would limit TU Electric's ability to l 1TU Electric does not address CASE's motions to compel answers from the Minority Owners, each of whom has filed separate responses to the interrogatories and special appearances by counsel in connection therewith. Because the Minority Owners have voluntarily responded to Intervenor's Interrogatories, the propriety of addressing such discovery to each Owner individually is not presented.

CASE's alternative suggestion, perhaps offered half-heartedly, to compel answers from TU Electric if a motion to compel does not lie against the Minority Owners, Motion to Compel at 3, is entirely misplaced. TU Electric has responded to the interrogatories on behalf of all Applicants after requesting each minority owner to provide TU Electric, as Project Manager, with all responsive factual information.

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f inspect those documents. Set Motion to Compel at 3. 'No protective order shielding I any documents from TU Electric's review would be in order. Tex-La has already )

l provided TU Electric with the documents Tex-La claims to wish to produce. It )

would obviously make no sense to bar TU Electric from seeing what it has already seen, and CASE offers no other explanation of what other kind of protective order it might have in mind.2 Second, CASE moves to compel TU Electric to answer only one interrogatory, No.19:

1 Ouestion No.19:

List every warning of which you are aware by the Atomic Safety and Licensing Board of the existence of policies or practices at Unit I which were not in compliance with NRC requirements or accepted practice. .

Obiection:

Applicants object to Interrogatory No.19 on the grounds that to the extent that if any such " warnings" were ever issued (a proposition with which Applicants do not agree) they would be matters of public record ,

and Interveners are as capable of identifying them as are Applicants.

The interrogatory is therefore overbroad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence.

There is no list such as apparently is contemplated by Interrogatory No.19 and no basis for requiring TU Electric to prepare one. The public record of these

. proceedings and of the Operating License proceedings are equally accessible to CASE. This Board has already established that CASE may not require TU Electric 2

In addition, CASE's suggested remedy leapfrogs the essential inquiry into the documents' responsiveness to the discovery requests at issue on this motion, as well as any privilege that may attach to the documents. As recently noted by the Board, the record is devoid of evidence warranting an inference that the documents are responsive. Memorandum and Order (Brazos Motion for a Declaratory Order)

-(Sep. 24,1987) at 4. TU Electric has examined these documents and determined them not to be responsive; Tex-La has asserted that five documents "may be responsive" to certain unspecified interrogatories . . .; CASE has offered no argument for their responsiveness. It would seem elementary that any order compelling production of those documents should be preceded by an inquiry into whether in fact they are responsive to any interrogatory that CASE has posed and/or whether they are privileged from discovery.

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to search those records and compile a list solely for CASE's benefit. Memorandum i

. and Order (Discovery Sets 1987 6, 7) (OL proceeding) (June 1,1987) at 4, 4-5 ("The Walsh/Doyle allegations are in the record and CASE need not have assisted Applicants to search the record, even to the extent that they have . . . Applicants are as able to search the record ~. . ."). This decision follows existing NRC precedent, g.g., Pennsylvania Power & Linht Co. (Susquehanna Steam Electric Station, Units I and 2), ALAB-613,12 NRC 317,334 (1980) ("In responding to discovery requests, a party is not required to engage in extensive independent research. It need only reveal information in its possession or control"); Houston Lightina & Power Co. (South Texas Project, Units I and 2), LBP-80-11,1I NRC 477, 478 (1980) (same). ' CASE, moreover, previously has recognized the impropriety of any discovery requests that require a party to " prepare listings" or undertake

" analyses" which they were not then contemplating. E.g., CASE's Supplementary Response to Applicants' Interrogatories to Consolidated Interveners, 7/6/87, oassim.

Sgg ghg Struthers Scientific & Int'l Coro. v. General Foods Coro.,45 F.R.D. 375, 380 (S.D. Tex.1968); Metzner v. American Window Glass Co.,1 F.R. Serv.2d 33.321, Case 3 (E.D. Pa.1958); Parmelee Transo. Co. v. Keeshin. 25 F.R. Serv. 33.317, Case 1 (N.D.111.1957); Needles v.' F.W. Woolworth,13 F.R.D. 460 (E.D. Pa.1952); Hillside Amusement Co. v. Warner Bros. Pictures Distrib. Coro.,17 F.R. Serv. 33.321, Case 5 (S.D.N.Y.1952); United States v. American Locomotive Co., 6 F.R.D. 35, 37 (N.D.

Ind.1946)(all limiting duty to disclose equally available or public materials).

Moreover, in calling for TU Electric to compile a list of any " warnings" by the Board (presumably in the operating licensing proceeding), CASE apparently is looking for Applicants' characterization of publicly available factual information so that CASE may use that characterization as a sword against Applicants in this proceeding. Motion to Compel at 15. Plainly, however, the act of preparing such a

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list would be a trial preparation function (assuming, as CASE does, that the fact or content of Board " warnings" has any relevance to this proceeding), and any such list therefore would be privileged from discovery. The selection or compilation of documents or information for trial, is " opinion work product privileged from disclosure because such disclosure "could not help but reveal important aspects of his understanding of the case. Indeed . . . the process of selection and distillation is often more critical than pure legal research." Sporck v. Egil, 759 F.2d 312,316 (3d Cir.), ggr.t. denied, U.S. ,106 S. Ct. 232 (1985) (quoting James Julian.

1[L v. Raytheon Co . 93 F.R.D.138,144 (D. Del.1982)). Sgg, g.g., Commonwealth Edison Comoany (Braidwood Nuclear Power Station, Units I and 2), LBP-86-7,23 NRC 177,180 (1986), (" compilations of material an:1 conclusions of an evaluation" ~

are protected work product).8 TEXAS UTILITIES ELECTRIC COMPANY By its attorneys, b ..f William S. Eggeling~

?W Robert J. Stillman 1 Jeffrey H. May l ROPES & GRAY '

225 Franklin Street Boston, MA 02110 (617) 423-6100

. Attorneys for Texas Utilities Electric Company 3

Accordingly, in Kerr-McGee Chemical Corocration (West Chicago Rare Earths Facility), LBP-85-38,22 NRC 604,169-22 (1985) the Board found that the work ,

product privilege shielded an applicant from being required to reveal which facts an l employee had incorporated in a study conducted in anticipation of litigation. Sgg glia Shelton v. American Motors Coro.,805 F.2d,1323,1327-29 (8th Cir.1986)

(work product privilege protects counsel from acknowledging which documents counsel knew client had in his possession because acknowledgment would reveal l which documents counsel remembered and, accordingly, which documents she considered important to client's defense); James Julian. Inc. v. Ravtheon Co., 83 F.R.D.138,144 (D. Del.1982) (selection and compilation of documents protected as work product); Berkey Photo. Inc. v. _ Eastman Kodak Co., 74 F.R.D. 613, 616 (S.D.N.Y.1977) (same). Indeed, since a party's selection of documents is " opinion work product" it merits even more stringent protection than other forms of work product. Sgg, g.g., Soorck, suora, 759 F.2d at 316.

P DOLKfiED

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17 DCT -5 P4 :05 CERTIFICATE OF SERVICE

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q Furr 15 EsMAD it02filt# A S 9 vtfi I, Jeffrey H. May, hereby certify that on Septembem130) .

i 1987, I made servi;e of " Response of TU Electric Co. to CASE Motion to Compel (9/15/87)" by mailing copies thereof, postage prepaid, to:

Peter B. Bloch, Esquire Mr. James E. Cummins Chairman Resident Inspector Administrative Judge Comanche Peak S.E.S.

Atomic Safety and Licensing c/o U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory P. O. Box 38 Commission Glen Rose, Texas 76043 Washington, D.C. 20555 Dr. Walter H. Jordan Ms. Billie Pirner Garde Administrative Judge GAP-Midwest Office 881 W. Outer Drive 104 E. Wisconsin Ave. -B l Oak Ridge, Tennessee 37830 Appleton, WI 54911-4897 Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Lawrence J. Chandler, Esquire Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S. Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C. 20555 Renea Hicks, Esquire Ellen Ginsburg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel j P. O. Box 12548 U.S. Nuclear Regulatory <

Capitol Station Commission i Austin, Texas 78711 Washington, D.C. 20555 4

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.9 Anthony Roisman, Esquire Mr. Lanny A. Sinkin Suite 600 Christic Institute.

1401 New York Avenue, N.W. 1324 North Capitol Street Washington, D.C. 20005 Washington, D.C. 20002 ,

Dr. Kenneth A. McCollom Mr. Robert D.. Martin Administrative Judge Regional Administrator 1107 West Knapp Region IV Stillwater, Oklahoma 74075 U.S. Nuclear Regulatory. .

Commission Suite 1000 611 Ryan Plaza Drive )

Arlington, Texas 76011 Elizabeth B. Johnson Geary S. Mizuno, Esquire  ;

Administrative Judge Office of the Executive {

Oak Ridge National Laboratory Legal Director i P. O. Box X, Building 3500 U.S. Nuclear Regulatory  !

Oak Ridge, Tennessee 37830 Commission Washington, D,C. 20555 I

Nancy H. Williams 2121 N. California Blvd.

Suite 390 ,

Walnut Creek, CA 94596 '

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f JefffeyH. May i

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