ML20235Y817
| ML20235Y817 | |
| 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-#387-4083 CPA, NUDOCS 8707270066 | |
| Download: ML20235Y817 (19) | |
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S"h 40 DOL
- Filed: Julh;[b , _1987 UNITED STATES OF AMERICA .g jgt 16 p132 NUCLEAR REGUIATORY COMMISSION
(.rr before.the 00CW, ,:o ATOMIC SAFETY AND LICENSING BOARD
-)
In the Matter of )
)
TEXAS UTILITIES ELECTRIC ) Docket No. 50-445-CPA COMPANY, et a1 )
)
(Comanche Peak Steam Electric )
Station, Unit 1) )
)
MOTION FOR RECONSIDERATION 1 OF THE BOARD'S ORDER OF JUNE 22, 1987 Joint Interveners sought to compel the disclosure of certain information generated in connection with a retrospective prudence audit being conducted for TU Electric by Messrs. Cresap, McCormick & Paget ("Cresap"). The Board granted the Interveners' motion, in part, on June 22, 1987.
Despite having properly concluded that the material prepared for or generated by the Cresap audit was " covered by the attorney 2 work product privilege," Texas Utilities Electric Co.
i 1 In a telephone conference call on June 29, 1987, the Chairman of the Licensing Board granted TU Electric a ten-day extension of the Board's standing order requiring the submission of motions for reconsideration within ten days of the date of the Order challenged. This Motion is therefore timely under this .
l Board's guidelines.
1 2 The Board's Memorandum occasionally describes the l
applicable privilege as " attorney work product." As the Board's analysis demonstrates, however, the work product privilege !
applies with equal force whenever the work product is " prepared l in anticipation of or for the hearing by or for [a] party's 8707270066 G70713 PDR ADOCK 05000445-O PDR O}
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e (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-87-20, Memorandum and Order at 5 (June 22, 1987) (" Order"),3 this Board required TU Electric to provide Interveners with "all information and all admissions 4 (including factual statements obtained from present or former project employees by Cresap personnel) relevant to Appendix B requirements and cause determinations and supplied to Cresap." Id. at 6-7 (footnotes omitted). To the extent that we understand the analysis used by the Board in concluding it was justified in disregarding the work product privilege, we are representative," whether or not that representative is an attorney. 10 C.F.R. 2.74 0 (b) (2) . Egg, gtg2, In re International Systems & Controls Coro., 693 F.2d 1235, 1238 (5th Cir. 1982). In this instance TU Electric's representative is Cresap.
3 The Board pointed out that the work product privilege" did not alter TU Electric's obligation under 10 C.F.R. Part 50, Appendix B to report and analyze any conditions adverse to quality, Id. at 3. It also observed that the Order in no way released TU Electric from their McGuire Board notification obligations. TU Electric fully agrees with these truisms. TU Electric is not freed from its obligations to report or respond to safety related matters under Appendix B (or other regulatory provisions, such as 10 C.F.R. 50.55(e)) simply because they may have supplied the information to Cresap. TU Electric has never claimed that their regulatory obligations are in any respect diminished par force the Cresap activities. TU Electric emphasizes that it believes it has made all disclosures required by Appendix B (or other provisions of law). Finally, TU Electric agrees that a permittee cannot hide from the Board information it would otherwise be required to disclose under the McGuire doctrine by disclosing it to Cresap -- nor has TU Electric ever so claimed.
4 The Board Memorandum defined " admissions" to be a term descriptive of a particular class of statements. That definition is, however, decidedly incongruent with the normal usage of that word in a federal proceeding. Egg Fed. R. Evid. 801(d) (2) .
Regrettably, it is not clear to us whethbr any portion of the normal definition is to be incorporated into determining the full scrpe of the duties of disclosure sought to be imposed by the Board's Order.
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i obliged to advise the Board that those reasons are clearly erroneous and contrary to law. To the extent we have misunderstood the intended breadth of the Board's Order, we request clarification to resolve the sources of ambiguity.5 We accordingly respectfully request that the Atomic Safety and Licensing Board reconsider its Memorandum and Order of June 22, 1987. It is submitted that, upon such reconsideration, the Memorandum and Order should be vacated as being contrary to controlling law -- or should at least be substantially modified and clarified.
I.
At the outset, it is necessary to summarize the types of documents which may have been generated by the Cresap audit, the nature of the work-product privilege attaching to those documents and TU Electric's understanding of whether the Board's Order requires TU Electric to disclose those documents.
A.
5 For example, it would be possible to interpret the Order's directive that TU Electric produce information which an Applicant is obliged to formally document or report under 10 C.F.R. Appendix B, Part 50, Memorandum and Order at 3, as going no further than requiring confirmation that all matters of
" serious concern" (Id. at 7 n.12) regarding significant conditions adverse to quality are identified and dealt with in accordance with that Regulation. Inasmuch as TU Electric's methods of responding to such conditions (viz , the Comanche Peak corrective action system) produces a paper trail (e.c., CARS, 50.55e Reports, NCRs, etc.) available to Interveners, it may be that the Board intended to go no further than assuring that any such items which may have had their genesis in the retrospective prudence audit are made available in accordance with normal procedures. If this is all that is intended, a clarification of the Order making this clear might adequately safeguard TU Electric's rights. See also note 3, suora.
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l As outside, independent auditors, Cresap has no direct access to information regarding the prudence of TU Electric's activities. It is, therefore, required to interrogate TU Electric, and its employees and agents, to discover relevant documents and facts. Accordingly, TU Electric or its employees and agents " supplied information to Cresap"6 by: (i) compiling
" historical" documents at Cresap's request; (ii) creating or completing documents in direct response to inquiries from Cresap; and (iii) orally responding to Cresap's questions. The Board's order would purport to require TU Electric to review all7 these potential compilations to identify and disclose "all information and admissions 8 . . . relevant to Appendix B requirements and cause determinations." Order at 6-7. The Order thereby requires TU Electric to reveal two distinct types of privileged material.
6 The Order only requires TU Electric to disclose information supplied to Cresap. Accordingly, only information supplied to Cresap must be screened against the " admissions" criteria outlined in the Order at 7 n.10.
7 In the course of reviewing the Board's Order against materials generated by the Cresap audit, we learned for the first time that while Cresap has retained some form of record of the oral interviews it conducted of some TU Electric personnel, it takes the position that those records are solely its property and Dat subject to the control of TU Electric. As we understand it, Cresap's interviews were undertaken under promises of confidentiality, and Cresap is unwilling to permit the violation of those guarantees. Inasmuch as we believe that TU Electric must assuredly have the right to complain where the Board's Order purports to require the disclosure of the work product of its agent, we have concluded that the fact that the Interveners' ;
requests may not literally reach these Cresap records should not deprive TU Electric of standing to point out that the Order is devoid of legal justification for such an unprecedented invasion of its interests.
8 See note 4, suora.
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B.
l First, by requiring TU Electric to disclose selectively only l l those " historical" documents which Cresap requested and examined, it requires TU Electric to reveal which " historical" documents cresap believed relevant to its retrospective prudence audit efforts. A party's or his agents' selection and compilation of documents or information in preparation for trial is, of course, 1
a fortiori protected as " opinion work product" because its 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." Soorck v. Peil, 759 F. 2d 312, 316 (3d Cir.), cert.
denied, __ U.S. __, 106 S. Ct. 232 (1985) (quoting James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982)). Egg, e.g., Commonwealth Edison Comoany (Braidwood Nuclear Power Station, Units 1 and 2), LBP-86-7, 23 NRC 177, 180 (1986),
(" compilations of material and conclusions of an evaluation" are protected work product).9 of course, the work product privilege 9 Accordingly, in Egyr-McGee Chemical Corporation (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 employee had incorporated in a study conducted in anticipation of litigation. Egg also 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 which documents counsel remembered and, accordingly, which documents she considered important to client's defense); James Julian. Inc. v. Raytheon Co., 93 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
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does not protect the " historical" documents themselves; it only protects the fact that a party or his agent compiled this particular assortment of them in anticipation of litigation.
Second, by requiring TU Electric to supply written or oral
" factual statements obtained from present or former project employees by Cresap personnel"10 the Board would require disclosure of precisely the type of matter archetypically protected by the work product privilege: statements made or elicited by a party or his agent in anticipation of litigation.
Egg, e.q., Hickman v. Tavlor, 329 U.S. 495 (1947) (privilege protects witness statements taken by parties' agent).
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II.
The Board's Memorandum correctly analyzed that these materials were protected under the work product doctrine.11 The Board erred, however, when it concluded that the privilege could be overridden on the facts before it. An order mandating disclosure of work product materials can be premised only "upon a documents is " opinion work product" it merits even more stringent protection than other forms of work product. See, e.a., Soorck, suora, 759 F. 2d at 316.
10 Order at 6 11 The Board was also plainly correct in concluding that the documents are protected as the work of non-testifying experts. Fed. R. Civ. P. 26(b) (4) ; Commonwealth Edison Company (Braidwood Nuclear Power Station, Units 1 and 2), LBP-86-7, 23 NRC 176, 178-79 (1986); Kerr-McGee Chemical Corporation (West Chicago Rare Earths Facility), LBP-85-38, 22 NRC 604, 609 (1985);
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 496-97 (1983).
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showing that the party seeking discovery has substantial need for the materials in the preparatisa of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means." 10 C.F.R. 2.74 0 (b) (2) . Any finding that Interveners have made a sufficient showing under this -- or any other -- standard would be clearly erroneous, contrary to law and an abuse of discretion. Since such a finding is a prerequisite to the disclosure directed by the Board's Order, that order must be reconsidered.
A.
The Board's Order is clearly erroneous because there is simply n2 evidence in the record suggesting, much less showing, that
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Interveners have a " substantial need" for the privileged materia 1 and cannot "without undue hardship obtain the substantial equivalent of the materials by other means." 10 C.F.R. 2.740 (b) (2) . Absent such evidence privileged material cannot be ordered disclosed. Hickman v. Tavlor, 329 U.S. 495, 512 (1947) (party's " naked, general" assertions cannot justify overriding privilege); In re International Systems & Controls Coro.. 693 F.2d 1235, 1240-41 (5th Cir. 1982) (party's " broad unsubstantiated assertions" are inadequate to support overriding of privilege, " particularized showing" of need and undue hardship necessary); In re Grand Jury Investigation, 599 F.2d 1224, 1232 (3d Cir. 1979) (party's failure to submit affidavits or other evidence of need and undue hardship precludes overriding of
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privilege).12 It is axiomatic that if a party seeking discovery can gather tha information contained in the privileged material through his own discovery, he cannot override the privilege. Gay v. P.K.
Lindsay Co., Inc., 666 F.2d 710, 713 (1st Cir. 1981), cert.
denied 456 U.S. 975 (1982); In re International Systems &
Controls Coro., 693 F.2d 1235, 1240 (5th Cir. 1982); In re Mu rchv, 560 F.2d 326, 336 (8th Cir. 1977).13 That is exactly the case here. Interveners, of course, may independently discover any historical document in TU Electric's control,14 including documents supplied to Cresap. The privilege merely protects thg fact those documents were deemed relevant by Cresap. If Interveners ask TU Electric employees the same or similar 12 Egg also First Wisconsin Mortoace Trust v. First Wisconsin Coro., 86 F.R.D. 160, 166-67 (E.D. Wisc. 1980) (party's failure to substantiate in record claims of need and hardship precludes overriding privilege); Howard v. Seaboard Coastline Railroad comoany, 60 F.R.D. 638, 639 (N.D. Ga. 1973)(party's failure to supply factual support for claims of need and hardship precludes overriding privilege); Almacuer v. Chicaco. Rock Island
& Pacific Railroad Co., 55 Fed. R. Serv. 147, 150-51 (D. Neb.
1972) (same) ; Boyce v. Visi-Flash Rentals Eastern. Inc., 22 Fed.
R. Serv. 2d 1445, 1446 (D. Mass. 1976) (same) .
13 The fact that a party can discover the same information through discovery of non-privileged matter demonstrates the nonexistence of both undue hardship and substantial need. In re International Systems & Controls Coro.,
693 F.2d 1235, 1240-41 (5th Cir. 1982). The reason is clear: if a party can obtain the information contained in the privileged documents elsewhere, he does not need to see those privileged documents and suffers no hardship when not allowed to see them. {
j 14 As noted suora, the historical documents themselves are not privileged. The privilege merely protects Cresap's compilation of those documents. It is difficult to imagine why Intervenor's would possibly "need" to know which documents Cresap considers relevant to its audit objectives.
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)
questions to those Cresap asked, it must be assumed TU Electric will truthfully answer. The privilege. simply precludes Interveners from litigating on " wits borrowed" from Cresap by discovering what questions Cresap asked or what statements Cresap's research generated. Hickman v. Taylor, 329 U.S. 495, 516 (1947) (Jackson, J. concurring). Interveners nowhere suggested any basis for believing there may be information contained in the Cresap materials which Interveners cannot obtain through normal discovery.15 There is, accordingly, no basis for allowing them access to the privileged materials.
B.
Despite the absence of any evidence in the record of substantial need and undue hardship, the Board suggested it was authorized to override the work product privilege for two reasons. Settled precedent squarely holds, however, that those
" reasons" are legally insufficient to sustain an order overriding the privilege.
First, the Board suggests information made available to cresap may be " unavailable" to Intervenor because it was obtained 15 Interveners suggested to the Board that it would be prohibitively burdensome for them to independently gather the same information Cresap gathered. Interveners failed to submit a single fact to support this claim. There is, therefore, nothing in this record adequate to support the required finding. Hickman, supra, 329 U.S. at 512 (1946) ; In re: LTV Securities Litication, 89 F.R.D. 595, 616 (N.D. Tex. 1981). The mere observation that Interveners may duplicate Cresap's work is legally insufficient to establish undue hardship, Id., as is the unsubstantiated and unquantified assertion that it will take time and money to do so.
U.S. v. Chatham City Coro., 72 F.R.D. 640, 644 (D. Ga. 1976)
(cost and inconvenience not undue hardship); lester v.
Isbrandtsen Co., 10 F.R.D. 338, 341 (S.D. Tex. 1E50) (same).
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by " friendly fact-finders." order at 7 n.11. The Board observes that, because the Cresap interviewers are " friendly," granting Interveners access to those interviewed by Cresap is not
" analogous to giving Interveners access to interviews of third-party witnesses who have no relation to applicants." Id.
This reasoning is wrong as a matter of law. The work product privilege applies with full force to interviews by
" friendly" fact finders. Egg, e.a., In re International Systems
& Controls Coro., 693 F.2d 1235 (5th Cir. 1982) (work product doctrine applies to information gathered by an internal corporate investigation); In re Grand Jury Investigation, 599 F. 2d 1224 (3d Cir. 1979) (work product protects internal corporate audit) .
No court has ever hinted at any par gg " friendly fact-finder" exception to the work product privilege. To the contrary, courts will only order access to interviews by " friendly" interviewers where there exists hard evidence that the interviewees are, in fact, keeping information from their adversaries. Egg, e.a.,
International Systems, suora, 693 F.2d at 1241 (unsupported allegation that interviewee will not disclose same information to l
l adversary as to " friendly" interviewer insufficient to justify 1
overriding privilege); Grand Jury Investigation, suora, 599 F.2d at 1232 (same); Guilford Nat. Bank of Greensboro v. Southern Rv.
C2A, 297 F.2d 921, 926 (4th Cir. 1962) (same).16 Accordingly, 16 See also Basincer v. Glacier Carriers. Inc., 107 F.R.D.
771, 774 (M.D. Pa. 1985) (same) ; Howard v. Seaboard Coastline Railroad Co., 60 F.R.D. 638, 639 (D. Ga. 1973) (same) ; Almacuer v.
Chicaco. Rock Island & Pacific Railroad Co., 55 F.R.D. 147, 150 (D. Neb. 1972)(same).
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courts virtually'never allow access to the privileged answers until after'the adversary has attempted to discover the information contained in the privileged documents by other reans.
International Systems, supra, 693 F.2d at 1240; Grand Jury InvestiaatiSD, supra, 599 T.2d at 1232; Guilford Nat. Bank, supra, 297 F.2d at 926; Basinaer, supra, 107 F.R.D. at 774; y Howard, supra, 60 F.R.D. at 639; Almaguer, supra, 55 F.R.D. at 150; Fidelity & Denosit Co. of Md. v. S. Stefan Strauss. Inc., 52 F.R.D. 536, 537 (E.D. Pa. 1971).
The reason for this simple, black-letter rule is clear. Any other rule would ignore a basic reason the work product privilege exists at all: to insure that a party and its agents can play
" devil's advocate," analyzing its own case without fear that its comments, made to " friendly" agents, will be used against it. ID re Murchv, 560 F. 2d 326, 334 (8th Cir. 1977).17 Acceptance of the analysis advanced by the Interveners must therefore chill exactly that which the rules are instead intended to foster: the comprehensive and thorough examination of litigation positions in order to ensure their responsible and orderly presentation to the responsible tribunal. It takes little imagination to perceive <
how pernicious the " friendly interviewer" presumption could be if not recalled. Indeed, it could as easily be used to justify the compelled disclosure of every lawyers' files, regardless of the i
17 Hickman v. Tavlor, 329 U.S. 495, 510-11 (1947); United States v. Nobles, 422 U.S. 225, 237-38 (1975) ; Goldbera v. United j States, 425 U.S. 94, 106 (1976); Unichn Co. v. United States, 449 U.S. 383, 397-98 (1981); EIQ v. Grolier. Inc., 103 S.Ct. 2209, 2212 (1983).
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work product privileges attached thereto, inasmuch as one would have difficulty finding more " friendly" interviewers than the lawyers who have a fiduciary responsibility to the interviewees' or their employers. It is obvious that should not be the law.18 Second, the Board suggested Interveners were entitled to view Cresap's " work product" because "the balancing test" does not " operate in the same fashion" in NRC and civil cases. This statement flatly contradicts NRC precedent. 10 C.F.R.
- 2. 74 0 (b) (2) tracks Fed. R. Civ. P. 26 (b) (3) almost verbatim. It has long been established that when NRC and Federal rules are similar, they are to be applied in the same way. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-374, 5 NRC 417, 421 (1977); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 4 9 0, 497 (1983). Accordingly, Licensing Boards have regularly treated Fed. R. Civ. P. 26(b)(3) and 10 C.F.R. 2.74 0 (b) (2) as identical. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 917 N.27 (1982)
(interpreting 10 C.F.R. 2.740(b)(3) according to Fed. R. Civ.
P. 26(b) (3)) ; Commonwealth Edison Company (Braidwood Nuclear 18 Furthermore, acceptance of such a rule could only rest on the assumption that a deponent might disclose to a " friendly fact-finder" things he would not tell an adversary. That assumption is defective. If non-privileged information or documents are responsive to a question asked by the adversary, 1 the deponent or party mynt supply them. Disregard of that presumption is not permissible. Egg, e.a., Hickman, suora, 329 U.S. at 509; In re Grand Jury Investicati2D, 519 F. 2d 1224, 1232 (3d Cir. 1979) (" naked assertion that [ plaintiff) might discover a cover-up if granted access" to privileged materials cannot justify overriding privilege).
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l Power Plant Station, Units 1 and 2) , LBP-86-7, 23 NRC 177, 180 (1986) (same); Kerr-McGee Chemical Corporation (West Chicago Rare Earths Facility), LBP-85-38, 22 NRC 604, 619-22 (1985) (same);
Public Service Company of New Hampsh[rg (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 494-95 (1983) (same); Long Island Lichtina Company (Shoreham Nuclear Power Station, Unit 1),
LBP-82-82, 16 NRC 1144, 1159-62 (1982). In fact, this Board expressly held in an earlier decision: "If the documents sought are categorized by the Board as attorney work product, the Board must then proceed to determine 'whether the party seeking discovery has demonstrated need and hardship as mandated by Hickman and the Federal Rules.'" Texas Utilities Electric Co.
(Comanche Peak Steam Electric Station, Units 1 and 2), LBP-84-50, 20 NRC 1464, 1474 (1984) (quoting United States v. Linshy, 492 F.Supp. 35, 46 (N.D. Tex. 1979).19 It could not be clearer: the
" substantial need" and " undue hardship" test are the same in NRC and civil cases.
Assuming arauendo, however, that 10 C.F.R. 2.740 dictates 19 Indeed, it is difficult to imagine why the NRC would wish to have a different work product rule than the federal courts. The public interest in the disclosure of information regarding nuclear plants is amply protected by the many regulations (such as Appendix B and 10 C.F.R. 50.55e) and judge-made doctrines (such as EcGuire) requiring disclosure. As the Board correctly observed in its Order, the work-product doctrine does not and cannot cut back those obligations. Furthermore, in this case at least (and perhaps in all cases -- given that the privilege does not protect information otherwise unavailable to a party) the privilege would not keep facts hidden. Interveners can discover all documents not otherwise privileged in TU Electric's possession; they can interview all persons in TU Electric's control; and if information is still " unavailable" they can override the privilege.
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a different test than Fed. R. Civ. P. 26(b) (3) , the Commission's Rule still expressly requires some showing of the same factors called for in the Federal rules: " substantial need" and " undue hardship." Interveners have failed to make any showing that those factors are present here, however. They have failed to ,
show "that the factual information they seek is not available .
through normal discovery." Kerr-McGee, supra, 22 NRC at 619-20.
They have not shown that "no other practical means [ exists) to obtain the same facts," Texas Utilities, suora, 20 NRC at 1476, -
or that any witness may have forgotten information contained in privileged documents. Lona Island Lichtina Company, guara, 16 NRC at 1167. In short, even if the Board's conception of a difference in " balancing" under NRC procedures is accepted, the' Commission's Rules of Practice expressly require that something substantial be placed on Interveners' side of the scale. No such weight has been advanced, however, and Interveners' attempts to bypass TU Electric's work product privileges should accordingly have been rejected.
III.
The Board's order is erroneous for a reason distinct from its misapplication of the work product doctrine. The requirement that TU Electric identify and disclose "[a]ny statement that could be construed unfavorably to any of Applicants' positions in this litigations [ sic]" Order at 6, n.10, vis-a-vis " Appendix B requirements and cause determinations and supplied to Cresap,"
Id. at 7, is simply improper. A lawful document request, and
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therefore a lawful order compelling a party to honor that request, must describe the documents sought with " reasonable particularity." 10 C.F.R. 2.741(c). The description must be so clear that a " reasonable man would know what documents or things are called for." 4A J. Moore, Moore's Federal Procedure, 34.07 at p.34-36.
The Board's proposed Order fails that test. It requires TU Electric to identify the documents it must produce based on the inherently highly subjective determination of: (i) what Applicants' " positions in this litigations [ sic]" will be; (ii) what arguments could be made against those positions; and (iii) what statements "could be construed" to buttress those arguments.
That is precisely the type of open-ended document request which' l
is not permissible. Egg, e.g., Egbbins v. Camden city Bd. of 1 Educ., 105 F.R.D. 49, 60 (D.N.J. 1985) (request for documents which " conceivably refer or relate" to named person not sufficiently definite); Mercantile Metal & Ore Coro. v. American Gen. Suo. Coro., 12 F.R.D. 345, 346 (S.D.N.Y. 1952) (Weinfeld, J.) (request for documents which "may be material" improper); In re Hunter Outdoor Products. Inc., 21 B.R. 188, 192 (D. Mass. 1982)
(request for documents which "show or tend to prove" defendant committed act not sufficiently definite).
Equally important, the Order violates the maxim that one f
party may not be forced to "make" his opponent's case for him.
Hunter, supra, 21 B.R. at 192; Cf. F.T.C. v. Grolier, 462 U.S.
26, 30-31 (1983) (Brennan, J. concurring) (work product privilege
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i designed, in part, to prevent parties from litigating on wits-borrowed from their adversary). The Order would seem to require _
l TU Electric and its attorneys to imagine which arguments Interveners "could" use in this proceeding, then scrutinize its own files to find support for those potential arguments, then supply the results to Interveners for use against it. The discovery rules cannot authorize such flagellation. They require parties only to supply their opponents with the facts, not to construct for their opponents a blueprint of how these facts can i
be " construed unfavorably" to their position.20 CONCLUSION The work product doctrine may well have received more
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judicial attention than any other evidentiary privilege. As a result, the principles governing its application are clear. This Board's Order flatly disregards them. The privilege cannot be overridden absent compelling record evidence of " substantial need" and " undue hardship." There is no such evidence in this case. Further, the Board's assumption that it is entitled to disregard the work product privilec,e because this is NRC l 20 We are extremely concerned by the mere suggestion that the discovery available under the Commission's Rules'of Practice can make a litigant's attorneys not only the agent of its adversaries but an advocate of their position as well. We have dif ficulty understanding how the Board can expect us to review information available to our client and screen it for production to the Interveners based upon the standard that it might be j harmful to our client's interests. Such a perverse reversal of '
roles seems to us completely at odds with every assumption about the proper function of our adversary system. Its enforcement would as well raise serious due' process considerations, threatening the rights of TU Electric as well as of its counsel.
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'4 administrative litigation is directly contradicted by the i
Regulations promulgated by the Commission and by every reported I l
NRC decision in'this area. TU Electric, therefore, urges the Board promptly to reconsider and withdraw its Order of June 22, 1987. -
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l TEXAS UTIL3 TIES ELECTRIC CO ANY I 6SOi~/ , I df / s~ i c _. -
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.A I Wil] Id.m Sk Eqleling l Dav: d A. Martl nd i Jef1 ray H. Ma ROPES & GRAY I 225 Franklin Street ,
Boston, MA - 02110 617-423-6100 Attorneys for Texas Utilities Electric Company l
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CERTIFICATE OF SERVICE'
'87 J1 16 P 134 I,- William S. Eggeling,'hereby certify that on July 13, 1987, I madeserviceof"MotionforReconsiderationofkhhj.Bb~ardf.s.Orderof pr o June 22, 1987" by mailing copies therecf, 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.1 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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Renea Hicks, Esquire _ Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel 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 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, Esq.
Administrative Judge Office of the Executive.
Oak-Ridge National Laboratory Legal Director P . 0 c. 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 William S. Ng ing i
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