ML20245L407
| ML20245L407 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/01/1989 |
| From: | Flynn H, Mcpheters L Federal Emergency Management Agency |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#289-8562 OL, NUDOCS 8905080027 | |
| Download: ML20245L407 (12) | |
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CM EETED Umar May 1, 1989 j
UNITED STATES OF AMERICA
'89 liAY -4 P2 :08 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING [ BOARD.
JUDGE IVAN W. SMITH, CHAIRMAN JUDGE RICHARD F. COLE JUDGE KENNETH A. McCOLLOM
)
In the Matter of
)
)
Public Service Co. of New Hampshire,
)
Docket No. 50-443-OL et al.
)
50-444-OL
)
Offsite Emergency (Seabrook Station, Units 1 & 2)
)
Planning Issues
)
)
FEDERAL EMERGENCY MANAGDENT AGENCY'S FURTHER REPLY TO MASSACHUSETTS ATTORNEY GENERAL'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM FEMA On Friday, April 28, 1989, the Board, in connection with further discussion of the motion of the Massachusetts Attorney General to compel production of certain documents from FEMA, invited counsel for FEMA to submit a supplemental memorandum regarding the application of the attorney / client privilege to Document 72, a memorandum from Richard W. Donovan to H. Joseph Flynn, Esq., entitled "MA AG Motion Regarding the FEMA Post-Exercise Evaluation and Assessment Report Dated December 13, 1988."
See Transcript of April 28, 1989, pp. 20912-35.
This memorandum addresscs three issues raised by the Board:
(1) whether an otherwise valid claim of the attorney / client privilege may be overcome by a showing of need of the adversary for disclosure of the privileged pg* REEL BEMP
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f-communication; (2) whether a client waives the attorney / client privilege by disclosure of the underlying subject matter of an attorney / client communication; and (3) in the government context, how application of the privilege is affected by the issue of whether the communication is between attorney and client in connection with legal representation or whether the communication is between two policy-makers in connection with the prospective formulation of agency policy.
I.
WHETHER THE ATTORNEY / CLIENT PRIVILEGE CAN BE OVERCOME BY THE ADVERSARY'S SHOWING OF NEED FOR DISCLOSURE A far more lengthy brief could be written, but the short and definitive answer to the issue to the issue raised by the Board may be found in the holding and opinion of the Supreme Court of the United States in Upjohn v.
United States, 449 U.S. 383 (1981), in which the Supreme Court held that the attorney / client privilege barred compulsory disclosure to the Internal Revenue Service of notes of interviews by corporate counsel of corporate employees and rejected the " control group doctrine" that had been employed by some lower federal courts limiting the attorney / client privilege to communications by management employees.
In Upiohn, the Supreme Court articulated the compelling social purposes served by the attorney / client privilege.
The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.
8 J.
Wigmore, Evidence Sec. 2290 (McNaughton rev. 1961).
Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of I
justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.
449 U.S., at 389 [ emphasis added).
FEMA's Further Reply to Massachusetts Attorney General's Motion to Compel Production of Documents From FEMA, p. 2.
The Court thus found that the control group test effectively frustrated the public interest purposes of the attorney / client privilege by discouraging corporate employees from communicating relevant information to corporate attorneys.
Id., 449 U.S. at 392.
Indeed, the Couct found that the uncertainty of application of the control group test in itself discouraged and in effect nullified the attorney / client privilege.
But if the purpose of the attorney / client privilege is to be served, the attorney and the client must be able to predict with some degree of certainty whether a particular discussion will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.
Id., 449 U.S. at 393 (emphasis added). Based on these compelling public policy reasons, the Supreme Court sustained the attorney / client privilege as to the challenged documents.
In applying this point to the specific issue raised by the Board one could hardly imagine more uncertainty than the necessity of an attorney and client to attempt to predict, before engaging in communications, whether the prospective unfolding of litigation might lead in the future to a cognizable claim that disclosure of their communications was With such uncertainty, attorneys and clients would needed by their adversary.
wisely forgo -irtually all communication abot* potentially contested matters, thus adversely affecting the public interest in sound legal advice and advocacy based upon the lawyer's being fully informed by the client.
That the attorney / client privilege cannot be overcome by a showing of need is further demonstrated by the Supreme Court's treatment of the related attorney work-product privilege in Upiohn regarding notes and memoranda of corporate counsel beyond the recording of responses of corporate employees.
The Court emphasized that its holding that the interviews with corporate employees were covered by the attorney / client privilege foreclosed further FEMA's Further Reply to Massachusetts Attorney General's Motion to Compel Production of Documents From FEMA, p. 3.
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consideration of disclosure, and that only material not subject to the attorney / client privilege could properly be evaluated under the attorney work-product doctrine for possible disclosure upon a showing of need.
Our decision that the communications by Upjohn employees to counsel are covered by the attorney-client privilege disposes of the case so far as the responses to the questionnaires and any notes reflecting responsen to interview questions are concerned. The summons reaches further, however, and Thomas has testified that his notes and memoranda of interviews go beyond recording responses to his questions.
App. 27a-281, 91a-93a. To the extent that the material subject to the summons is not protected by the attorney-client privilege as disclosing communications between an employee and counsel, we must reach the ruling by the Court of Appeals that the work-product doctrine does not apply to summonses issued under 26 U.S.C. Sec. 7602.
Id, 449 U..S. at 397 [ emphasis added].
It should also be noted that the Massachusetts Attorney General agrees with the position of FEMA counsel on this point. As Mr. Traficonte stated,
"[I]t's my understanding of the attorney / client privilege that it is not and cannot be overcome by need."
Tr. 20930.
II. WHETHER THE ATTORNEY / CLIENT PRIVILEGE IS WAIVED BY DISCLOSURE OF THE FACTS UNDERLYING THE ATTORNEY / CLIENT COMMUNICATION In argument to the Board, the Massachusetts Attorney General took the position that if Mr. Donovan at his deposition had publicly discussed or disclosed the facts underlying his attorney / client communication with Mr.
Flynn, that disclosure would effectively waive the attorney / client privilege.
Mr. Traficonte stated the position tarply in his argument:
It's that communication to the attorney of something nobody else knows that starts the privilege on its course, If I understand what Ms. McPheters has said and the Board's review of the document, there may well be information stated in this document that is either a matter of public record or Mr. Donovan has affirmatively made it a matter of public record.
FEMA's Further Reply to Massachusetts Attorney General's Motion to Compel Production of Documents From FEMA, p. 4.
4 If either is the case, those portions of the document simply are not--they don't contain or reflect confidential communications by client to attorney.
And on that point the privilege doesn't even--in a sense, it doesn't even get born.
Tr. 20926.
These contentions, however, entirely miss the point that the attorney / client privilege prevents compelled disclosure of confidential communications, not the facts underlying those communications.
The Supreme Court in Upiohn, supra, addressed and rejected the view presented by the Attorney General, in defining the proper scope of the attorney / client privilege:
Application of the attorney / client privilege to communications such as those involved here, however, puts the adversary in no worse position than if the communications had never taken place. The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney:
"[T]he protection of the privilege extends only to communications and not to facts.
A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?" but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to this attorney." Philadelphia v. Westinghouse Electric Corp.,
205 F.Supp. 830, 831, (E.D.Pa. 1962).
Upjohn, supra, 449 U.S. at 396 [ emphasis added).
Since the facts underlying his communication with Mr. Flynn were not subject to the attorney / client privilege, the fact that Mr. Donovan may have discussed these facts and their subject matter in whole or in part at his deposition or elsewhere cannot be said to constitute a waiver of his attorney / client privilege against compelled disclosure of his communications with his attorney.
FEMA addressed the other contentions of the Attorney General as to waiver in its menorandum of April 21, 1989, pp. 11-15.
The Board's attention is respectfully invited to the argument and authority contained therein.
l FEMA's Further Reply to Massachusetts Attorney General's Motion to Compel Production of Documents From PEMA, p. 5.
III. TIIE STATUS OF THE ATTORNEY / CLIENT PRIVILEGE IN REGARD TO GOVERNMENT EMPLOYEES AND POLICYMAKERS The Board raised the issue whether Mr. Donovan's claim of attorney / client privilege was affected by the fact that both he and Mr. Flynn were agency employees and whether their relationship was that of colleagues and policymakers rather than strictly that of attorney and client.
Tr. 20922, 20934.
The issue posed by the Board may be articulated in the strict terms of analysis of whether the attorney / client privilege applies, that is, whether the communication was between an attorney and his client relating to a legal matter for which the client has sought professional advice.
In this light, Mr. Donovan's memorandum to Mr. Flynn clearly is such a communication.
Its subject is not future policymaking, but an issue in contested litigation in which Mr. Donovan's conduct has been called into question and in regard to which Mr. Donovan is receiving legal representation from Mr. Flynn.
I feed, an examination of Mr. Donovan's memorandum, single-spaced and three pages in length, reveals only five lines (page 2, first full paragraph) arguably addressed to possible future agency policy. The entire context demonstrates that the thrust of Mr. Donovan's communication was his past conduct as challenged in the Seabrook litigation, and that these brief comments were peripheral to the point of his communication.
Where the requirements for the establishment of the attorney / client privilege are present, there is no exception barring government agencies and employees from the protection of the privilege. As the U.S. Court of Appeals for the District of Columbia Circuit observed:
FEMA's Further Reply to Massachusetts Attorney General's Motion to Compel Production of Documents From FEMA, p. 6.
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The opinion of even the finest attorney, however, is no better than the information which his client provides.
In order to ensure that a client receives the best possible legal advice, based on a full and frank discussion with his attorney, the attorney-client privilege assures him that confidential communications to his attorney will not be disclosed without his consent. We see no reasons why this same protection should not be extended to an agency's communications with its attorneys under exemption five.
Mead Data Central, Inc. v. United States Dept. of Air Force, 566 F.2d 242, 246 ((D.C.Cir. 1977).
For the reasons above stated, and in FEMA's nemorandum of April 21, 1989 and in argument before the Board, the Board is respectfully requested to sustain FEMA's claim of attorney / client privilege as to Mr. Donovan's December 16, 1988 memorandum to Mr. Flynn.
Respectfully submitted, H. JOSEPII FLfNN U
C.
LINDA IfUBER MCPIIETERS for the Federal Emergency Management Agency 500 C Street, S.W.
Washington, D.C. 20472 (202) 646-4102 FEMA's Further Reply to Massachusetts Attorney General's Motion to Compel Production of Documents From PEMA, p. 7.
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[^t d;En u w..,_
May 1, 1989
'89 MY -4 P2 :08 UNITED STATES OF AMERICA
{g NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD JUDGE IVAN W. SMITH, CHAIRMAN JUDGE RICHARD F. COLE JUDGE KENNETH A. McCOLLOM
)
In the Matter of
)
)
Public Service Co. of New Hampshire,
)
Docket No. 50-443-OL et al.
)
50-444-OL
)
Offsite Emergency (Seabrook Station, Units 1 & 2)
)
Planning Issues
)
)
CERTIFICATE OF SERVICE I hereby certify that I served by telefax copies of the enclosed Federal Emergency Management Agency's Further Reply to Massachusetts Attorney General's Motion to Compel Production of Documents From FEMA to the Judges of the Atomic Safety Licensing Board and to John Traficonte, Esq., Assistant Attorney General of Massachusetts on May 1, 1989.
I further certify that I will serve by first-class mail on May 2, 1989 copies of the aforesaid Reply to the persons indicated on the attached service list.
Ivan W. Smith, Esq., Chairman Atomic Safety and Licensing Board Nuclear Regulatory Commission Bethesda, Maryland 20555 Dr. Richard F. Cole Administrative Judge Atomic Safety and Licensing Board Nuclear Regulatory Commission Bethesda, Maryland 20555
2 Dr. Kenneth A. McCollom Administrative _ Judge Atomic Safety and Licensing Board Nuclear Regulatory Commission Bethesda, Maryland 20555 Robert R. Pierce, Esq.
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary Nuclear Regulatory Commission Bethesda, Maryland 20555 Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Thomars G. Dignan, Jr., Esq.*
Ropes & Gray One International Place Boston, MA 02110 John Traficonte, Esq.*
Assistant Attorney General Office of the Attorney General One Ashburton Place, 19th Floor Boston, MA 02108 Dianne Curran, Esq.*
Harmon, Curran & Tousley 2001 S Street, N.W.
Suite 430 Washington, D.C. 20009 Robert A. Backus, Esq.*
Backus, Meyer & Solomon 116 Lowell Street Manchester, NH 03106 Paul McEachern, Esq.*
Shaines & McEachern Post Office Box 360 Portsmouth, NH 03801 Certificate of Service of FEMA's Pretrial Reply to Massachusetts Attorney General's Motion to Compel Production of Documents from FEMA, page 2.
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n Barbara St. Andre, Esq.*
Kopelman & Paige 77 Franklin Street Boston, MA 02110 R. Scott Hill-Whilton, Esq.*
Lagoulis, Hill-Whilton & Rotondi 79 State Street Newburyport, MA 01950 Ashod N. Amirian, Esq.*
Town Counsel for Merrimac i
376 Main Street Haverhill, MA 08130 Judith H. Mizner, Esq.*
79 State Street Newburyport, MA 01950 Gary W. Holmes, Esq.
Holmes & Ellis 47 Winnacunnet Road Hampton, NH 03842 J.P. Nadeau, Esq.
Selectmen's Representative Board of Selectmen 10 Central Road Rye, NH03870 Charles P. Graham, Esq.
Murphy and Graham 33 Low Street Newburyport, MA 01950 Richard A. Hampe, Esq.
Hampe and McNichols 35 Pleasant Street l
Concord, NH 03301
{
Philip Ahrens
[
Assistant Attorney General l
Office of the Attorney General
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State House Station, #6 Augusta, ME 04333 Geoffrey Huntington*
Assistant Attorney General 25 Capitol Street Concord NH 03301-6397 Certificate of Service of FEMA's Pretrial Reply to Massachusetts Attorney General's Motion to Compel Production of Documents from FEMA, page 3.
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Sherwin E. Turk, Esq.
- 0ffice'of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Jane Doughty Seacoast Anti-Pollution League 5 Market Street Portsmouth, NH 03801 i
William S. Lord Board of Selectmen Town Hall - Friend Street Amesbury, MA 01913 Sandra Gavutis, Chairman Board of Selectmen RFD 1, Box 1154 Route 107 Kensington, NH 03827 Allen uampert Civil Defense Director Town of Brentwood 20 Franklin Street Exeter, NH 03833 l
Angie Machiros, Chairman Board of Selectmen 25 High Road Newbury, MA 01950 Jerard A. Croteau, Constable 82 Beach Road P.O. Box 5501 Salisbury, MA 01950 Michael Santosuosso, Chairman Board of Selectmen South Hampton, NH 01913 Calvin A. Canney, City Manager City Hall 126 Daniel Street Portsmouth, NH 03801 Mr. Robert Carrigg, Chairman Board of Selectmen Town Office Atlantic Avenue North Hampton, NH 03862 Certificate of Service of FEMA's Pretrial Reply to Massachusetts Attorney General's Motion to Compel Production of Documents from FEMA, page 4.
[..,...;,,
' William Armstrong Civil Defense Director Town of Exeter 10 Front Street Exeter,!IH 03833 Mrs. Anne E. Goodman, Chairman Board of Selectmen 13-15 I?ewmarket Road Durham, NH 03824 Brentwood Board of Selectmen RFD Dalton Road Brentwood, NH 03833 Richard R. I%novan Federal Emerges.ay Management Agency Federal Regional C?nter 130 228th Street, S.;'.
Bothell, Washington 98021-9796 Senator Gordon J. Humphrey U.S. Senate 531 Hart Senate Office Buildit.1 Washington, D.C. 20510 Dated: May 1, 1989 g
LINDA HUBER MCPHETERS General Attorney Federal Emergency Management Agency 500 C Street, S.W.
Washington, D.C. 20472 (202) 646-4105 i
Certificate of Service of FEMA's Pretrial Reply to Massachusetts Attorney page 5.
General's Motion to Compel Production of Documents from FEMA,
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