ML20247A931
| ML20247A931 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/21/1989 |
| From: | Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#189-8356 OL, NUDOCS 8903290231 | |
| Download: ML20247A931 (17) | |
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UNITED STATES 'OF A.YERICA
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NUCLEAR REGULATORY COMMISSION
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7n the' Matter of
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PUBLIC SERYTCE.; COMPANY OF '
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Docket Nos. LO-443-OL
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NEW HAMPSHIRE, et'al.
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50-444-OL v.1 1
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Off-site Emergency.
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'(Seabrook Station,.. Units 1 and 2)
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Planning Issues '
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.O APPLICANTS' MOTION TO COMPEL PRODUCTION a
- OF DOCUMENTS WITHHELD BY. MASS AG 7
JAMES'SHANNON AND TO PERMIT FURTHER DOCUMENT DISCOVERY' l
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5 Applicants hereby move that the Attorney General for the s
Commonwealth of Massachusetts (" Mass'AG");be compel 19d'to i
produce'certain documents which he previously has withheld,.
asserting attorney-client privilege.- Applicants also move that they be permitted to serve two additional' document requests upon. Mass AG, to obtain other dccuments which I
previcuoly had been deemed unavailable due to the same asserted privilegs.
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L In view of the fact that Mass AG has obfuscated these issues of privilege right up to the commencement of trial, Applicarts hereby move that the Board entertain immediate j
oral argument on these motions.
L BACKGROUND l
Up until this time, Mass AG has expressly and implicitly claimed >A attorney-client relationship, for the purposes of these proceedings, with the Governor of Massachusetts and other Massachusetts officials and agencies.1 Indeed, Mass AG has expressly refused to produce responsive documents requested by Applicants on the purported grounds that such an attorney-client relationship existed.2 Today, however, Mass AG has made a very different statement as to who his client in these proceedings is.
1
- See, e.o., Response of Attorney General Francis X.
Esilotti (June 20, 1986) ("The Attorney General intends to participate in this proceeding as an interested state under 5 2.715(c).") ; Attorney General JameG M. Shannon's Motion for Substitution of Party (January 22, 1987) (Mass AG is "the designated party in this licensing proceeding representing the Commonwealth of Massachusetts, admitted into this proceeding as an ' interested. state' pursuant to C.F.R.
5 2.715 (c). ") ; I,3g also Publiq JJIyice Company of New Hamoshire (Seabrook Station, Units 1 and 2) AIAB-838, 23 NRC 585, 590 n.8 (1986) ("At oral argument, the Attorney General acknowledged that, for pre.sent purposes, he and the Commonwealth are to be deemed a single entity.").
2 See Massachusetts Attorney General's Supplemental Response to Applicants' Second Request for Production o#
Documents at 1, 2-5 (December 19, 1988) [ hereinafter " HAG Response"), attached hereto as Exhibit 1.
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. o, ARGUMENT I.
SPECIFIC DOCUMENTS WITHHELD In response to Applicants' discovery requests 'in the fall of 1988, Mass AG filed a list of documents ' responsive to
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i those requests which Mass AG nonetheless was withholding, for I
various reasons.
MAG Response at 1.
He specifically listed twenty-five responsive documents, within his possession and control, which he claimed were covered by attorneyelient i
privilege.
M. at 2-5.
Today Mass AG has announced, for the first time, who his
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client is not in these proceedings.
He also has made clear, for the first time, that for twenty-one (21) of the taenty-five documente listed by him, Mass AG can assert no attorney" client privilege.
Those documents fall into two categories:
(1) communications by Mass AG te non-clients of Mass AG; and
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(2) communications of non-Mass AG legal opinions to Mass AG.
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Neither group is privileged.
Accordingly, Mass AG should be I
compelled to produce them Moreover, since Mass AG already I
i holds the documents, and has al'ceady reviewed them, he should be compelled to produce them at once -- i.e.,
within one business day of the Board's order to compel.
l A.
Mass AG Communications With Non-clients l
Mass AG previously claimed that the following documents l
represcated or reflected his own communications with his l
client in these proceediligs:
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December 12, 1986 _ <
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' Memo from Tem Hubbard to Governor and Secretary Keefe 1
(re: strategy of Attorney General).
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April'9, 1987 Memo to Governor from John Judge (re: strategy of 7 /.
Attorney General)'.
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. November 8, 1088 Memo to Governor-from John Judge (re: Attorney General's strategy).
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Septertber' 15, 1988 I
Memo to Governor fror John Judge (re: Attorney Generall s
.lega) opinions).
!l 5.
.May,12, 1987 1
MGmo to Carol Snoider from Peter Agnes (re: Seabrook issues).
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6.
February 11, 1985 Memo to Charles Barry from Robert Boulay.(re: opinion of 0
Mass AG),
'7.
February 21, 1986 Memo to Robert Boulay from Buzz Hausner (re: opinion of l
Mass AG).
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8.
October 31, 1986 Memo to Tom'Hubbrard from Peter Agnec (re: Seabrook
. litigation). 3 1
Mass AG has already expressly admitted that these
. documents are responsive to' Applicants' discovery requests >
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MAG Response at 1.
Mass AG's only objection to producing the documents was a claim of attorney-client privilege.
It is i
now revealed, however, tnat that claim was baseless.
Mass AG i
now does not purport to represent the Governor in these 3
Mass AG previously produced a redacted vers, ion of this document, excluding the portions which he claimed at that time were privileged.
See Joint Stipulation Regarding Applicants' Motions to Compel at 2 (January 18, 1989).
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proceedings.
Nor'does he purport to represent any of the Jother state officials who generated the above-listed documents.
Accordingly, the documents should be produced, at once.
,B.
Non-Client Documents Held By Mass'AG
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Mass AG holds, and has reviewed, ~ certain state documents which were generated by officials whom. Mass AG does not i
L represent in.these proceedings:
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9.
April 13, 1988 Memo from John Judge to Stephen Rosenfeld (re: NRC-
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litigation).
10.
July 3, 1986 l
Memo to David Tibbetts from Robert Rasmussen (re: legal l
authority).
e 11.
September 5, 1980 Memo to Seabrook Team from David Tibbetts (re: opinion on evacuation.of West Newbury).
12.
February 18, 1987 Memo to Stephen Rosenfeld from David Tibbetts (re: legal opinion),
13.
October 21, 1987 Momo,to Governor from Bruce Goldman (re: NRC i
litigatLon).
V 14.
October'16, 1987 l
Memo to Governor from Bruce Goldman (re: NRC L
litigation).
Se~tember 15, 1986 25.
p Memo to Governor from Peter Agnes (re: legal issues).
16.
October 21, 1987 i
Memo to Seabrook Team from Patricia Boies (re: legal matters).
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September 9, 1988 Memo to Governor from Bruce Goldman (re: NRC litigation).
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18.
(no date)
Memo to Governor from Patricia Boies (re: legal i
authority; draft of statement concerning legal opinion).
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19.
June 9, 1988 j
Memo to Governor from Stephen Rosenfeld (re: legal authority).
2 0..
June 11, 1986 Memo to Secretary Barry from Tom Kiley (re: legal j
opinion).
21.
September 18, 1986
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Memo to Governor from Peter Agnes (re: legal issues).
Again Mass AG has admitted that these documents are
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responsive to Applicants' requests, and he raised no objection to their production other than attorney-client privilege.
However, since Mass AG does not represent in
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t these proceedings the officials who sent or received those documents, he has no standing to assert attorney-client privilege with respect to those documents.
Accordingly the i
documents should be produced, at once.
II.
REOUEST FOR FURTHER DISCOVERY Applicants have until this time, as a result of the various statements and claims of privilege made by Mass AG, operated under the impression the Mass AG had an attorney-client relationship in these proceedings with tha Governor and the rest of the government of the Commonwealth.
Accordingly, Applicants restricted their discovery requests i
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1 Now, hottsver, it is apparent that 'che scope of Mass AG's representation is more limitad, and much relevant material which previously was assertedly covered by attorney-client l
privilege now demonstrably is not covered.
Therefore,
.j Applicants ask that they be allow to serve the following additional document requests upon Mass AG:
1.
Please produce all documents within the possession or control of the Mass AG, aside from those already produced to Applicants, which reflect or refer to communications between the Mass AG (including any officer or agent thereof) and the Governor of the I
commonwealth of Massachusetts (including any subordinate or agent thereof) concerning any issue raised in the admitted contentions in these proceedings.
1 2.
Please produce all documents within the possession or control of the Mass AG, aside from those already produced to Applicants or being produced pursuant to Request 1 above, which reflect or refer to communications between the Mass AG (including any officer or agent thereof) and'any Massachusetts
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government official, department, agency, or employee, whca Mass AG is not Expressly representing in these proceedings, concerning any issue raised in the' admitted contentions 3
in these proceedings.
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' CONCLUSION.
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r; For' the reasons btated 'above Mass AG'should be i r
e-ompelled to produce ' the twenty-one. (21), documents listed -
i herein,.'and should be< compelled to' respond to the above two additional document requests.
1 Respectfully' submitted, I
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,n-k;;R;l-Thomas G..Dignan, Jr.
f George H. Lewald.
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Kathryn'A. Selleck i
Jeffrey P. Trout Jay Bradford Saith Geoi'frey C.
Cook l
Ropes & Gray
-i One International Place Boston, MA 02110
. ( 617 ) 951-7000
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UNITED STATES'OF AMERICA NUCLEAR REGULATORY COMMISSION i
3 ATOMIC SAFETY AND LICENSING BOARD Before the Administtalive Judges:
10 Ivan W.
Smith, Chairman l
Gustave A. Linenberger, Jr.
Dr. Jercy Harbour
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, In'the Matter of
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Docket Nos. 50-443-OL
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50-444-OL PUBLIC SERVICE COMPANY
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(Off-Site EP) 1 OF NEW' HAMPSHIRE, EI AL.
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(Seabrook Station, Units 1 and 2)
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December 19, 1988'
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MASSACHUSETTS ATTORNEY GENERAL'S
' SUPPLEMENTAL RESPONSE TO APPLICANTS' SECQ)).,Q_EEOUEST FOR PRODUCTION OF DOfjJMENTS i
The following document is being produced as responsive to j
i Interrogatory 3 but hr' been par &,ially redacted based on a j
claim of deliberative process privilege.
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Memo dated August 7, 1906 I
Redacted pcrtions concerning prospective analysis of r
Pilgr'im matter and suggestions regarding possible outcome of Seabrook licensing and litigation Although responsive,to Interrogatory 3, the following
-documents are priviliged and are not being produced for reasons as indicated.
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. November 5 13,-l'988.
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Memo.to, Gov'ernor from John' Judge (re:' Executive Order)~
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< April 13,~1988 Memo from, John Judge to Stephen'Rossnfelds'(re: NRC p
litigation)
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July 3, 1986 i
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Memo to David Tibbetts from-Robert Rasmussen (re:
, legal authority) 3)
Septembet 5,
1966 Memo to Seabrook Team f rom: David Tibbett.s (re: opinion on evacuation of West Newbury) i l-4)
December 22, 1986 Memo from Tom Hubbard to Governor and Secretary Keefe (re: strategy of Attorney General) s
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April 9, 1987 b
Memo to Governor from John Judge (re:. strategy of Attoiney General)
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November 8,'c1988 w
l.e Memo;to Governor from John Judge (re: Attorney.
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General's' strategy)
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September:15, 1988 l
Memo'to' Governor from John Judge (re: Attorney.
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General's legal opinions) 8)
October 31, 1986 Memo to' Tom Hubbard.from Peter Agnes (re: Seabrook litigation) i i
9)
February 18, 1987 Memo to Stephen Rosenfeld from David Tibbetts (re:
l legal opinion) 10)'.May 12, 1987 Memo to Carol Sneider from Peter Agnes (re: Seabrook j
' issues)
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11).
(no date)
Outline of legal argument 12)
October 21, 1987
' Memo to Governor from Bruce Goldman (re: NRC litigation) 3-i e
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Memo to Governor from Bruce.Goldman frei NRC U
litigation)-
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September 15, 1986 Memo to Governor from Peter Agnes (re: legal issues) 4 15)
October 21, 1987
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. Memo to Seabrook-Team from Patricia' Boies (re: legal matters)
'16 )
September.9, 1988
'i Memo to Governor from Bruce Goldman (re: NRC Litigation) i 17)
(no date)
-Memo to Governor from' Patricia Boies (re: legal
' opinion; draft of statement concerning legal opinion) 18)
June 9, 1988 Memo to Governor from. Stephen Rosenfeld (re: legdl authority) 19)
June 11, 1986 Memo to Secretary Barry from Tom Kiley (re: legal opinion) i -
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b 20).' September' 18,'
1986 Memo to' Governor.from Peter,Agnes (re: legal' issues)-
21)
September.'18, 1986
. Memo lolGovetnor from, Peter Agnes'(re: legal issues) i l
22)
September 23, 1987 Memo.to Patricia Boies from John Judge-(re: Siren 1
Permit) 23)
September 23, 1987 l
Memo to Donald Stern from Patricia Boies (re: memo mentioned in number 22, supra).
j 24)
February 11, 1986 Memo to Charles Barry from Robert Boulay (re: opinion
-i of attorney).
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25)
February 11, 1986 i
Memo to Robert Boulay from Buzz Hausmer (re: opinion i
of atterney)
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Work Product Privilece l
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April 24, 1986 Memo to Carol Sneider from consultant
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1986
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Memo to: Tom Kiley from' Lee Breckenridge-(re: Attorney.
L General's resources)
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JanuaryJ31, 1986 Memo written by' Carol Sneider, Jo Ann' Shotwell (re:
Seabrook Emergency Planning) m' t
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SAtilement Docume d
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There'areL21 such documents.which are either the work
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. product of attorneys engaged, at the' time, in settlement I
g negotiations or. attorney / client communications regarding
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.1 settlement negotiations.
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'l Respectfully submitted, 1
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JAMES MI.SHANNON' ATTQRNEY GENERAL ---
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John Traficonte i
Chief, Nucletr Safety Unit i
Allan R. Fierc9
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Carol S. Sneider-Pamela Talbot' Leslie Greer 1
Assistant Attorneys General
.l One Ashburton Place Boston, MA 02108 (617) 727-2200 Date:
December 19, 1988.
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'4 CERTIFICATE OF SERVICE, I,- T h o m a's' O. Dignan,Jr.,oneoftheLattorney$f5$$de P4 :02 Applicants'herein, hereby certify that'on March 21, 1989, I imadeserviceofthewithindocun-entbymailingcogiles,Myj { ' NI w
g thereof,: postage prepaid, to:
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! Administrative Judge.Ivan W. Smith, Administrative Judge Peter B.
Chairman Bloch,' Chairman Atomic' Safety and'L! censing Atomic Safety and Licensing.
-Board Board U.S.
Nuclear Regulatory U. S '. Nuclear Regulatory Commission Commission
. Washingter.,fDC. 20555 Washington, DC 20555 Administrative Judge Richard F.
Dr. Jerry Harbour Cole Atomic. Safety and Licensing.
Atomic Safety and Licensing
. Board Board U.S.. Nuclear Regulatory O '.~ S. Nuclear' Req ~ulatory Commission Cominission Washington,.DC 20555 Washington, DC 20555
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Administrative Jcdge Kenneth A.
Administrative Judge'Emmeth A.
McCollam' Luebke 1107 West Knapp Street Atomic Safety and' Licensing Stillwater, OK 74075 Ocard Apartment 1923N:
5500 Friendsnip Doulevard Chevy Chase, MD 20815 James H. Carpenter, Alternate Robert R.' Pierce, Esquire Technical. Member Atomic Safety and Licensing Atomic Safety and Licensing Board-Board.
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission v
Washington, DC ' 20555 Washington, DC 20555 Adjudicatory File Sherwin E. Turk, Esquire q
Atomic' Safety and Licensing Office of the Executive Legal l
Board Panel Docket (2 copies)
Director U.F, Nuclear Regulatory U.S. Nuclear Regulatory
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Commission Commission l
Washington, DC 20555 Washington, DC 20555 Atocic Safety and Licensing Robert A.
Backus, Esquire Appeal Board' Backus, Meyer & Solomon j
U.S. Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105
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Philip Ahrens, Esquire Mr. J.
P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road
' General Rye, NH 03870 Augusta, ME 04333 3
Paul McEachern, Esquire John Traficonte, Esquire Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney
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P.O.
Box 360 General j
Portsraouth, NH 03801 One Ashburton Place, 1Pth Flr.
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Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A.
Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street
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Portsmouth, NH 03801 Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire f
U.S.
Senate Lagoulis, Hill-Whilton &
Washington, DC 20510 Rotondi-(Attn:
Tom Burack) 79 State Street j
Newburyport, MA 01950 i
b Senator Gordon J. Humphrey Leonard Kopelman, Esquire
'j One Eagle Square, Suite 507 Kopelman & Paige, P.C.
Concord, NH 03301 77 Franklin Street j
(Attn:
Herb Boynton)
Boston, MA 02110
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l Mr. Thomas F.
Powers, III Mr. William So Lord 1
Town Manager Board og Selectmen j
Town of Exeter Town Hall - Friend. Street
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10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Charles P. Graham, Esquire 1
office of General Counsel Murphy ' end Graham
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Federal Emergency Management 33 Low Street i
Agency Newburyport, MA 01950
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500 C Street, S.W.
J Washington, DC 20472
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l Gary-W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 Concord, NH 03301 b i
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Mr. Richard R. Donovan ~
Judith H. Mizner, Esquiref Federal Emergency; Management 79 State Street, 2nd Floor-Agency'.
Newbuiyport,;MA; 01950 Federal' Regional' Center
.130 228th Street, S.W.
B'othell, Washington 98021t-9796'
' Ashod. N./ Amirian, Esquire.
Robert.Carrigg,; Chairman 145 South Main Street!
= Board of Selectmen L
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>P.CL Box 38 Town Office, Atlantic Avenue LBradford' MA 01835' North Hampton, NH 03862
-John.P.. Arnold, Esquire Diane 1 Curran, Esquire
. Attorney 1 General Andrea.C..Ferster, Esquire George : Dana Bisbee, " Esquire.
Harmon, Curran & Tousley.
Assistant Attorney: General'..
Suite 430 Office of.the Attorney General-2001.S Street,RN.W.
'25 Capitol; Street-
. Washington, DC: 20009 l'
Concord,-NH.03301-6397..
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ThWas C. Ditfrian, Jr.
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