ML20237B641

Advises of Several New Developments in Connection W/ Documents Created By,Provided to or Obtained from Cresap, Mccormick & Paget Re Initial Phase of Retrospective Prudence Audit of Util

ML20237B641
Person / Time
Site:	Comanche Peak
Issue date:	12/08/1987
From:	Eggeling W ROPES & GRAY
To:	Bloch P, Jordan W, Mccollum K Atomic Safety and Licensing Board Panel
References
CON-#487-5082 CPA, NUDOCS 8712170029
Download: ML20237B641 (4)

Text

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Dr. Walter H. Jordan Administrative Judge c/o Carib Terrace Motel .

4 522 N. Ocean Blvd.

Pompano Beach, FL 33062 -

Re: Motion to Compel Production of Cresap, McCormick &

Paget Materials, etc. Docket No. 50-445-CPA

Dear Administrative Judges:

I have recently been advised that several developments j have occurred in connection with documents created by,. 1 provided to or obtained from the firm of Cresap, McCormick & l Paget in connection with an initial phase of a retrospective prudence audit of TU Electric. As the Board is aware, these documents might be thought to be called for by certain portions of the Intervenor's Discovery Requests (Sets 5 and '

6) and were the subject of the Interveners' Motion to compel (March 3, 1987) with respect thereto. At the current time, the Board's Order (June 22, 1987) (Discovery Concerning Cresap Report) in response to that Motion to Compel has been partially stayed in response to Motions for Reconsideration  ;

and for a Stay submitted by this office. See Hearing Tr.

25135-37, November 2, 1987. In connection with the grant of this stay, the Board also directed the undersigned counsel'to provide additional information regarding the documents actually possessed by TU Electric and subject to the terms'of the Board's 6/22/87 Order. I complied'with this directive by two letters dated July 28, 1987.

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.I Ropes & Gen s

Peter Bloch, Chairman Dr. Kenneth A. McCollum Dr. Walter H. Jordan December 8, 1987 The following additional events have now occurred, which seem to warrant supplementation of my representations to the Board:

1. A Texas state court judge, in connection with litigation between the Joint owners in that court, has ruled that he will not recognize or enforce a work product privilege with respect to l the Cresap documents, at least as between the Joint owners of CPSES. One result of this ruling, which TU Electric continues to believe is error, is that documents previously possessed by TU Electric and described by my July 28 letters have now been made available to representatives of the Minority owners by the Texas court. TU Electric is currently considering the legal effect of the state court's failure to recognize or safeguard its claims of ~ ~

privilege with respect to these documents. The net effect of these analyses may be that TU Electric will now be prepared to make some or all of the Category II documents available to the Intervenor in these proceedings without further objection. TU Electric expects speedily to complete this review and will thereafter communicate again with the Board and the parties as to its conclusions and intentions.

l 2. In response to a separate, but related, ruling, Cresap McCormick & Paget has been required by the Texas court to produce for the Minority owners summaries of notes taken during oral interviews of TU Electric employees and other persons in the course of its prudence audit work (as referenced in footnote 7 of my Motion for Reconsideration of the Board's order of June 22, 1987 (filed July 13, 1987)). These interview summaries were actually produced by Cresap representatives in connection with a recent deposition conducted in Chicago, Illinois (although portions may have been redacted prior tc production, pursuant to the terms of the ruling court's order). As a result, these interview summaries (apparently redacted as permitted by the court's orders) have for the first time now become available to TU Electric. Similar to the documents 1

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Ropts & GOAv Peter Bloch, Chairman Dr. Kenneth A. McCollum -3 December 8, 1987 Dr. Walter H. Jordan described in the preceding paragraph, moreover, no confidentiality projections or use restrictions were placed upon these interview summaries by the Texas court. TU Electric is therefore currently investigating these developments and considering whether its stance with regard to these documents should be modified. It expects to report its conclusions to the Board and the parties within the same period mentioned above.

3. Finally, in connection with the same series of events surrounding discovery of Cresap, McCormick & Paget in Illinois described in Item 2, above, certain additional documents created by Cresap in the course of its work have also been  ;

produced for the Minority Owners. Those documents j have also thereby become available to TU Electric *

• representatives. Although such documents are not required to be produced according to the terms of the Board's Order ((June 22, 1997)(Discovery Concerning Cresap Report) at 6-7; see also Hearing Tr. 24896, July 20, 1987)), their confidentiality may have been affected by their compelled disclosure in connection with the state court proceedings. It is therefore conceivable that the original balance struck by the Board in its Order may have shifted. As with the other two items, the potential impact of such an interpretation is currently under investigation and TU Electric's  !

views with respect thereto will be promptly l reported to the Board. l l

To summarize, several events have just occurred in  ;

connection with the factual underpinnings of several related motions currently sub judice before this Board. In view of ,

the fact that the motions are specifically designated to be currently inactive, and in view of the fact that the actual impact of these new events on the issues presented by these motions is not yet clear, it would appear that there is nothing for the Board to do at this time. Nevertheless, I wanted to inform it of these new developments promptly and to advise the Board that further communications from TU Electric

Roots & Gaw 1 1

Peter Bloch, Chairman i Dr. Kenneth A. McCollum -4 - December 8, 1987 l Dr. Walter H. Jordan on this subject will soon be forthcoming -- the result of which may be to alter significantly the status of the motions.

Very truly yours, 4

William S. Eggg.ing WSE/lme FEDERAL EXPRESS cc: Service List e

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