ML20235Y805

Application for Stay of 870622 Discovery Order Pending Reconsideration of Order.* Requests Stay of ASLB 870622 Order Requiring Util to Disclose Work Product Matls Pending ASLB Review of Motion.W/Certificate of Svc

ML20235Y805
Person / Time
Site:	Comanche Peak
Issue date:	07/13/1987
From:	Eggeling W, Martland D ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#387-4082 CPA, NUDOCS 8707270061
Download: ML20235Y805 (8)

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40 y FILED: JUL Ikck987 UNITED STATES OF AMERICA '87 JUL 16 D 1 Z1

-NUCLEAR REGULATORY COMMISSION? r;,.

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before the .  !

ATOMIC SAFETY AND LICENSING BOARD- j

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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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APPLICATION FOR STAY OF JUNE 22, 1987 DISCOVERY ORDER PENDING RECONSIDERATION OF THAT ORDER Pursuant to 10 C.F.R. S 2.788, TU Electric requests that the' Atomic Safety Licensing Board stay'its order of June 22, 1987 --

requiring TU Electric to disclose work product materials --

pending the Board's review of TU Electric's Motion for Reconsideration of that Order.

SUMMARY

OF DECISION WHICH IS REOUESTED TO BE STA"ED On June 22, 1987, the Board granted, in part, Interveners' Motion to Compel TU Electric to release certain materials generated in connection with a retrospective prudence audit commissioned by TU Electric in anticipation of TU Electric's rate-related litigation before the Texas Public Utilities Commission. The. Board properly ruled that the materials were B707270062 B70713 PDR G ADOCK 05000445 PDR 0503

" covered by the attorney work product privilege," Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-87-20, Memorandum and Order at 5 (June 22, 1987)

(" Order"), but nevertheless ordered TU Electric to provide to Interveners "all information and all admissions (including factual statements obtained from present or former project -

cmployees by Cresap personnel) relevant to Appendix B requirements and cause determinations and supplied to Cresap."

Id 2 at 6-7 (footnotes omitted). As its lack of citation to authority attests, that Order is unprecedented. TU Electric submits that it is, morcover, legally erroneous and violative of its rights. TU Electric has submitted simultaneously its Motion

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for Reconsideration of that Order. Pending disposition of its challenges to the June 22 Order, TU Electric requests that the operative effect of that decision 1 be stayed.

STATEMENT OF GROUNDS FOR STAY In determining whether to grant a stay, Licensing Boards are directed to consider:

(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; 1 By its terms, the Order indicates only that the Licensing Board intends to " require Applicants to comply with i

(its decision) promptly." Texas Utilities Electric Co. (Comanche l Peak Steam Electric Station, Units 1 and 2), LBP-28-20, s Memorandum and Order at 7 (June 22, 1987). It is thus not immediately clear when the Order can be deemed to have been violated or, therefore, the full extent of any need for a stay thereof. In the exercise of extreme prudence, however, we are requesting a stay of any currently coercive aspects of the -

Board's decision.

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(2) Whether the party will be irreparably injured l unless a stay is granted; i

(3) Whether the granting of a stay would harm other parties; and 1

(4) Where the public interest lies. 10 C.F.R. S 2.788(e)

All four considerations strongly suggest a stay should issue.

"The most significant factor in deciding whether to grant a stay request is whether the party requesting a stay has shown  ;

that it will be irreparably injured unless a stay is grcnted."

Metropolitan Edison Comnany (Three Mile Island Nuclear Station, Unit 1), CLI-80-17, 20 NRC 801, 804 (1984) (quoting Westinghouse Electric Coro. (Export to the Philippines), CLI-80-14, 11 NRC 631, 662 (1980)). The irreparable injury TU Electric will suffer if no stay issues is manifest. TU Electric is asking this Board i

I to reconsider its ruling ordering TU Electric to disclose privileged material. If TU Electric is compelled to disclose that material in the interim, the essential value which is protected by the privilege -- avoidance of the unfairness of permitting one's adversary to see information produced in i anticipation of litigation -- will have been irreparably compromised. See, e.a., Hickman v. Tavlor, 329 U.S. 495, 508-11 (1946) (purpose of privilege is to prevent one party from viewing or using other party's work product material). Indeed, at least one Licensing Board has suggested that once a privileged document is provided to an adversary, no matter the reason, the privilege is destroyed. Kerr-McGee Chemical Corporation (West Chicago Rare 3

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Earths Facility), LBP-85-1, 21 NRC 11, 16-18 (1985) (reviewing l case law).2 l

The denial of a stay would irreparably harm TU Electric; granting one harms Interveners not a bit. Should the Board decide to reaffirm its Order, Interveners' access to the privileged matter would merely have been deferred. Furthermore, the work product privilege does not prevent Interveners from utilizing other discovery tools in order to interrogate any person within TU Electric's employ, including the same people interviewed by Cresap, or from viewing any historical document in TU Electric's control, including the documents viewed by Cresap.

Accordingly, while the stay is in effect, Interveners remain free to discover the same information Cresap discovered, they just cannot discover which information Cresap saw or utilize the means Cresap may have used to collect it.

Public interest considerations strongly suggest a stay should issue as well. The work product privilege is basic to the proper functioning of any adversarial process. Its promised safeguards help insure that parties will feel free to develop and present the most persuasive version of their case possible.

Hickman v. Taylor, 329 U.S. 495, 510-11 (1947); United States v.

Nobles, 422 U.S. 225, 239 (1975); Goldbera v. United States, 425 U.S. 94, 106 (1976) ; Unichn Co. v. United States, 449 U.S. 383, 2 See also Newton v. National Broadcasting Co., Inc. 726 F. 2d 591, 593 (9th Cir. 1984) ("any evidentiary privilege . . .

is liable to be irretrievably breached once the material for which the privilege is claimed has been disclosed").

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397-98 (1981) ; EIC v. Grolier, Inc., 103 S. Ct. 2209, 2212 j (1983). Obviously, the public has an interest in seeing that the promise of the privilege in the Code of Federal Regulations is not lightly broken. Moreover, no policy concerns weigh against protecting that interest by maintenance of the status quo here.

Facts will not be hidden or lost, and the many regulatory and judge-made disclosure rules (including the Appendi,x B, 50.55(e) and McGuire requirements) remain unaltered.

Finally, as to " likelihood of success on the merits," TU Electric hereby incorporates by reference its Motion for Reconsideration submitted herewith. Based upon the controlling authorities cited in that Motion, we submit it is most probable that the Order is incorrect and must be vacated. In any event,'

these authorities demonstrate, at a minimum, that the June 22 Order is most seriously suspect and should not be enforced until its novel and unprecedented components have been more carefully scrutinized. Wholly apart from these points, moreover, the combined force of the other three factors strongly suggests a stay should issue. Public Service Co. of oklahoma (Black Fox Station, Units 1 and 2), ALAB-508, 8 NRC 559, 561 (1978); Public Service Company of New Hampshire (Seabrook Station, Units 1 and

2) ALAB-338, 4 NRC 10, 14 (1976).

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CONCLUSION For the foregoing reasons, TU Electric requests that the Board's Order of June 22, 1987, be stayed pending reconsideration.

TEXAS UTILITI ELECTRIC COMPANY (t i \

gam S. #ggeling Wi Dal d A. Martland Je1frey H. May ROPES & GRAY 225 Franklin Street Boston, MA 02110 617-423-6100 Attorneys for Texas Utilities Electric Company i

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COLM it r one CERTIFICATE OF SERVICE

'87 11 16 P 1 :41 I, William S..Eggeling, hereby certify that on July 13, 1987, I madeserviceof"ApplicationforStayofJunkhh2,,i19875 Discovery

.r,Rti Order Pending Reconsideration of That Order" 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 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

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l Renea' Hicks, Esquire Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel 1 P.O. Box 12548, Capitol Station U.S. Nuclear Regulatory Commission Austin, Texas 78711 Washington, D.C. 20555 Anthony Roisman, Esquire Mr. Lanny A. Sinkin L

Suite 600 Christic. Institute 1401 New York Avenue, N.W. 1324 North Capitol Street i Washington, D.C. 20005 Washington,.D.C. 20002 Dr. Kenneth A. McCollom Mr. Robert D. Martin Administrative Judge Regional Administrator s 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, Esq.

l Administrative Judge . Office of the Executive Oak Ridge National Laboratory Legal Director P.O. Box X, Building 3500 U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Washington, D.C. 20555 Nancy H. Williams 2121 N. California Blvd.

Suite 390 Walnut Creek, CA 94596 L

William S. E eliny

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