ML20059L724

Motion to Compel Production of Documents (Set 1).* State of VT Should Be Compelled to Produce,In Manner Requested,Documents Requested in Util Requests 1-15

ML20059L724
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	09/12/1990
From:	Trout J ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP.
To:	Atomic Safety and Licensing Board Panel
References
CON-#490-10828 OLA-4, NUDOCS 9010010120
Download: ML20059L724 (20)

Text

o q f0SY 00LKETED UbHRC I~ded: September 12,2W SEP 14 P4 :02 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OM!CE of 5LCi1ItJY DocKElmG A si MI.

before the SMNCH ATOMIC SAFE'lY AND LICENSING BOARD In the Matter of

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Docket No. 50 271 OLA-4 i'ERMONT YANKEE NUCLEAR

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(Construction Period

?O VER CORPORATION

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Recapture)

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] Vermont Yankee Nuclear

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Power Station)

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MOTION TO COMPEL PRODUCTION OF DOCUMENTS (VYNPC Set No.1)

Pursuant to 10 C.F.R. 6 2.740(f), the Licensee, Vermont Yankee Nuclear Power Corporation (" Vermont Yankee"), moves that the Board enter an order compelling the intervenor State of Vermont ('SOV") to produce the documents requested in Requests 115 of the ' Document Requests Propounded by Vermont Yankee Nuclear Power Corporation to the State of Vermont (Set No.1)". The requests were served by mail on July 24,1990; the responses were served by mail on August 28,1990.1 ARGUMENT This matter began with the proffer by SOV of, inter alia, Contention Vil, supported by 27

• bases." This Board admitted that contention, limited to 14 of the a

27 proffered bases. The literal terms of these 14 bases therefore limit the scope of this proceeding: nothing more may be litigated and nothing less need be resoked (either on motion for summary disposition, after evidentiary hearing, or by decision 2For case of reference, the complete sets of requests and of SOV's responses thereto are appended to this motion as Attachments A and B, respectively.

• l'crmont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB 876, 26 NRC 277, 2S4 (1987); Carolina Powcr & Light Company (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 545-46 (1986);

Philadc/phia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 242 (1986); Carolina Light & Powcr C<nnpany (Sheaton Harris Nuclear Power Plant), ALAB 843,24 NRC 200,20S (1986).

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i of the proponent of the contention not to pursue one or more of the admitted bases).

In Document Requests 114, Vermont Yankee asked SOV to produce, for each of the admitted basis of Contention Vil, those documents that SOV contends support the assertions made by SOV in that basis. In Request 15, Vermont Yankee asked SOV to produce all other documents (if any) that it contends support its contention.8 Vermont Yankee's l'equests thus tracked SOV's own allegations, organized basis by basis just as SOV had organized its own allegations (on the basis of which it sou3 t and obtained admission to the proceedings). The requests sought b

nothing more (but nothing less) than the documentation that SOV itself advances as the support for those allegations.

SOV's response to each of Requests 114 is a blanket refusal to comply, on the purported grounds that the request is

• burdensome in that it attempts to force case preparation in a taanner, f.e., categorized according to the sub parts of Contention Vil, which [ sol'] has made no decision to implement.* (Emphasis added.) la response to Request 15, SOV raised un overbreadth objection, and then went on to state that the documents on which SOV intends to rely are contained somewhere within the universe of documents " acquired from Vermont Yankee through discovery and those referred to in response to Vermont Yankee Interrogatories," which universe Vermont Yankee was welcome to inspect and copy.

SOV's responses to these requests are unacceptable. In essence, SOV has -

asserted that Vermont Yankee must try to guess which of the nearly ten thousand (10.000) pages of documents already produced by Vermont Yankee to SOY, anr1 the thousands of other pages

• referenced" in SOV's interrogatory answers, contain the facts on which SOV intends to rely in support of its various allegations. Similarly, SOY asserts that Vermont Yankee must guess, at its own peril, what facts SOV believes support which individual basis of the contention.

There is absolutely no foundation, in the law of this agency or in federal practice generally, for SOV's refusal to comply with Vermont Yankee's request that it produce the documents upon which it relics, organized by the contention basis which they purportedly support. (And no such authority is cited by SOV.) Without SOV's compliance with these entirely proper (and, indeed, standard) requests, Vermont Yankee would be seriously hampered in any effort to resolve by summary disposition those allegations as to which SOV offers little or no factual support.

Likewise, Vermont Yankee will face considerable (and entirely unwarranted) 8By dermition. the response to Reqmst No.15 should be a null set-as somethmg not proffered in connection with one or more of the 14 admitted bases cannot be received-the test of which hypothesis was the function of Request No.

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' difficulties in organizing its' testimony at hearings, not knowing what SOV might advance as arguments in support of the various bases of its contention.

Moreover, SOV's argument is a deficient in logic as it is in authority, for thi simple reason what, while it is of no moment to Vermont. Yankee how SOY goes -

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'about its case investigation or preparation, it most assuredly is SOV's obligation to,

organize its proof according to the 14 admitted bases of Contention VII. In the first-instance, SOV is going to be required to state, as to each of the bases,'whether it presses the issue raised therein-as to any that SOY disclaims specific interest in pursuing. that portion of the contention must be dismissed. Tesas Utilises Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-8122,14 NRC 150,154 (1981); Carolina Power & Light Company (Shearon Harris Nuclear Power Plant), LBP 85 49, 22 NRC 899, 915 (1985), og'd, ALAB 843, 24_ NRC 200 (1986); Boston Edison Company (Pilgrim Nuclear Generating Station, Unit No. 2);

LBP 76 7, 3 NRC 156 (1976); see also Long Island Lighting Company (Shoreham -

Nuclear Power Station, Unit 1), CLI 88 9,28 NRC 567,571 (1988) -In the second instance, Vermont Yankee is entitled to insist on a statement of relevance as to each and every item of testimony and documentary proof offered by SOV into esidence, which in the present context means a connection between the proffered evidence and one or more of the 14 admitted bases.

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In short, SOV's refusal imposes substantial unnecessary burdens on this Board -

and on the other parties, and threatens the integrity of the factual record, by on the one hand forcing the parties to litigate issues as to which SOV has no real case, and on the other hand concealing the enent and nature of SOV's case as to other issues-so that possibly Licensee's initial testimony as to an issue will not cover all th'e topics placed therein by SOY, This, moreover, ise accomplished under the claim that, having secured admission to the proceeding.on the basis of one contention, SOV is free to abandon that contention and pursue something else of its choosing.

F The Board should not allow the efficiency of the adjudicatory process, and Vermont.

Yankee's rights to a fak opportunity to make its case, to be subverted by this kind of gamesmanship.'

A ;

At 7

'Throughout these proceedings, SOV has repeatedly attempted to evade Vermont Yankee's discovery requests based on the argument that SOV was being forced to prepare its case in a matner, or at a pace, that it did not necessarily like, Those arguments have been, and are here again, pure and simple straw men.

- Vermont Yankee does not care how SOV

• prepares its case? On the other hand, Vermont Yankee does have the right to msist that SOY respond to the inter.

L rogatories and do::ument requests posed by Vermont Yankee, organized in the fashion that Vermont Yankee has posed them, if, in order to respond. SOV finds that it must arrange information according to Vermont Yankee's questions rather than in some other (undisclosed) way preferred by SOV, such is the

• burden" it assumed by electing to intervene in litigation, it is the law of this agency that this very " burden" 'of which SOV complains is not a proper ground for objection.

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CONCLUSION For the reasons stated above, SOY should be compelled to produce, in the manner requested, the documents requested in Vermont Yankee's Requests 115.

By its attorneys, i ~(/

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R. h'. Gad Ilt Jeffrey P. Trout Ropes & Gray One International Place Boston, Massachusetts 02110 Telephone: 617 951 7520 Dated: September 12, 1990.

Pennsylvan'a Power and Light Cornpany and Allegheny Electric Cooperative, Inc.

(Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613,12 NRC 317,334 (1980).

Per co.itra, the real purpose of SOV's ' timing' and " organization" objections seems to be to enable SOV to escape altogether from its discovery obligations, by the simple expedient f not

• deciding" to prepare its case until its testimony is due.

If successful, this ploy by SOV will have enabled it (and other intervenors who adopt it in the future) to resurrect the ' trial by ambush" tactics-with their attendant wastefulness and unfairness-which discovery was designed to eliminate. E.g., ALAB.

613, supra,12 NRC at 321322.

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Attachmcat A 1

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Filed: July 24,1990 l

UNITED STATES OF AMEPCA l

NUCLEAR REGULATORY COMMISSION j

before the ATOMIC SAFETY AND LICENSING BOARD i

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In the Matter of

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Docket No. 50-271-OLA-4 VERMONT YANKEE NUCLEAR )

(Construction Period i

POWER CORPORATION

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Recapture)

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(Vermont Yankee Nuclear

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Power Station)

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t DOCUMENT REQUEST 3 PROPOUNDED BY VERMONT YANKEE NUCLEAR POWER CORPORATION t

TO THE STATE OF VERMONT (Set No.1) l Pursuant to 10 C.F.R. I 2.741, Vermont Yankee Nuclear Power Corpora-tion hereby requests that the State of Vermont produce, for inspection and copying, at the offices of Ropes & Gray, One international Place, Boston.

Massachusetts, at 10:00 am on August 24, 1990, or at such other time and place as counsel for the parties may agree, each of the following categories of documents, if a document called for in one of the following requests is one that VYNPC previously produced to SOV, or is one that SOV obtained from the Public Document Room, SOY may fully and specifically identify that document, in its response to the request, in lieu of producing the document.

As used in these requests, VYNPC means Vermont Yankee Nuclear Power Corporation: VYNPS means Vermont Yankee Nuclear Power Station: SOV means the State of Vermont, including the agencies, officers, employees, and agents thereof and further including contractors or consultants thereto.

As used in these requests, the term document has the same meaning as it does in Fed. R. Civ P. 34(a).

i As used in these requests, the term " identify" with respect to a person means to supply the name, current business or residential address and telephone number of the person, and to state the relationship, if any, of the person to SOV.

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As used in these requests. the term " identify

• with reference to a docutnent means to provide such identifying information as the title or other name of the document, the author or authors of the document, the date of the document, and to state whether or not the document, or a copy thereof, is within the possession, custody or control of SOV.

Your attention is called to the provisions of 10 C.F.R. $ 2.740(e) regarding the duty of supplementation with respect to answers to discovery requests.

1.

Please produce each and every document that SOY contends supports the assertions made by SOY in sub-part "b" of its Contention VII.

2.

Please produce each and every document that SOY contends supports the assertions made by SOY in sub-part "c" of its Contention Vll.

3.

Please produce each and every.tocument that SOY contends surports the assertions made by SOY in sub part 'd' of its Contention Vll.

4.

Please produce each and every document that SOV contends supports the assertions made by SOY in sub-part "e* of its Contention VII.

5.

Please produce each and every document that SOY contends supports the assertions made by SOY in sub-part 'g' of its Contention Vll.

6.

Please produce e,ach anti every document that SOY contends supports the assertio.i. m.ade by SOY in ub-put "h(t)* of its Contention Vll.

7.

Please produce each and every document that SOY contends supports the assertions are.de by SOY in sub-part 'h(2)" of its Contention Vil.

8.

Please produce each and every document that SOY contends supports the assertions made by SOY in sub-part "j" of its Contention Vll.

9.

Please produce each and every document that SOY contends supports the assertions made by SOV in sub-part "k" of its Contention Vil.

10.

Please produce each and every document that SOV contends supports the assertions made by SOY in sub-part "m" of its Contention Vil, it.

Please produce each and every document that SOV contends supports the assertions made by SOV in sub-part "n" of its Contention Vil.

12.

Please produce each and every document that SOY contends supports the assertions made by SOY in sub-part 'l' of its Contendon Vill.

13.

Please produce each and every document that SOV contends supports the assertions made by SOV in sub-part 'n' of its Contention Vill.

14.

Please produce each and every document that SOY contends supports the assertions made by SOY in sup-part "o* of its Contention Vill. i i

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t 15.

Please produce each and every document, other than those produced (or f

identified) in response to the preceding requests, that SOV contends supports the assertions made by SOY in its Contention VII.

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16.

With respect to every expert whom SOY has retained or otherwise consulted for the purposes of the:.e proceedings, please produce:

(a) for each expert retained, all documents that reflect, refer, or relate

o any communicationt frect or indirect, between SOY and the expert, or any persor c

.iity affiliated with or acting on behalf

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of the expert, prior to SOV's retention of the e?. pert:

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(b) for each expert retained, all documents that reflect or refer to either or both the (i) date and (ii) terms of SOV's retention of the expert, including (but not limited to) any and all retention agreements:

(c) for each expert consulted, all doctanents that reflect or refer to either or both the (i) date(s) and 'ii) terms of the consultation, including (but not limited to) any and all consultation agreements; (d) for each expert, all documents thtt reflect, refer. or relate to any communications between SOY and any other individual, agency, or other entity concerning the expert; (e) for each expert, all documents prepared (in whole or in part) by that expert which SOV intends to offer into evidence or otherwise rely upon at trial; and (f) for each expert retained to testify at trial, all documents upon which the expert's testimony will be based.

17.

For every employee or official of SOY whom SOY intends to offer as a witness, please produce:

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(a) all documents which reflect or refer to the technical qualifications of the witness; (b) all documents which reflect or refer to the duties, respon-sibilities, and/or terms of employment of the witness, (c) all documents prepared (in whole or in part) by the witness which SOY intends to offer into evidence or otherwise rely upon at trial; and 3

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(d) all documents upon which the witness's testimony will be based.

18. Please produce:

1 (a) all documents, not produced in response to one of the foregoing requests, that reflect. refer, or relate to any communications between SOY and any other individual, agency, or entity concerning these proceedings; (L) all documents, not produced in response to one of the foregoing requests, that reflect, refer, or relate to any communications between SOV and any other individual, agenc/, or other entity concerning the subject matter of these proceedings; and (c) all documents, not produced in response to one of the foregoing requests, that refer or relate to the subject matter of these proceedings.

By its attorneys, W

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R. W Gad 111 Jeffrey P. Trout R0 pes & Gray One International Place Boston, Massachusetts 02110 Telephone: 617-951-7520 Dated: July 24, 1990.

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i Certificate of Service I, Jeffrey P. Trout, hereby certify that on July 24,1990, I made service of the within requests for production of documents, by mailing copies

- thereof, finst class mail, postage prepaid, as follows:

j Robert M. Lar.o. Esquire Jerry R. Kline i

Chairman Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S.N.R.C.

U.S.N.R.C.

i' Washington, D.C. 20555 Washington, D.C. 20555 Frederick J. Shon Adjudicatory File Administrative judge Atomic Safety and Licensing Bt trd Atomic Safety and Licensing Board Panel U.S.N.R.C.

U.S.N.R.C.

Washington, D.C. 20$55 Washington, D.C. 20555 Anthony Z. Roisman. Esquire Ann P. Hodsdon. Esquire Cohen, Milstein & Hausfeld Patricia A. Jehle Esquire Suite 600 U.S.N.R.C.

1401 New York Avenue, N.W.

Washington, D.C. 20$$5 Washington, D.C. 20005 j

Kurt Janson, Esquire 4

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Vermont Department of Public Service 120 State Street Montpelier Vermont 05602 fY Jefffey P. Trout t

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h UNITED STATES OF AMrRICA NUCLEAR REGULATORY COMMISSION-

.beforo the ATOMIC SAFETY AND LICENSING BOARD.

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In the Matter of

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. VERMONT YANKEE NUCLEAR

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Docket No. 50-271-OLA-4 POWER CORPORATION

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(Operating-License

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(Vermont Yankee Nuclear

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Power Station)

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i RESPONSES TO DOCUMENT REQUESTS BY STATE OF VERMONT-TO'THE VERMONT YANKEE NUCLEAR POWER CORPORATION:

(Bet No. 1)

-Any documents made available in response to these document l

L requests may be inspected and~ copied in the offices of'the 1

Department;of Public service, State of Verr ~ '

Ctate Street, Montpelier, Vermont at such time as may. mutita?.. agreeable to the parties.

.Q.1 Please produce each and every d"-

i bat OV contends, supports the assertion.

part "b" of its contention VII.

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in sub-ny,

'A.1 Vermont objects to this request ac burdensome. in that it attempts ~to force casa preparation in a manner, 1

i copies-will be char Department of Public Service:ged at the standard iates of the ten ceilte per. copy if copied by

Vermont-Yankee personnel, fifteen cents per copy if copied by Department personnel.

Use of Department photocopying equipment by Vermont Yankee personnel will be cubject to availability of the equipment.

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.f.roG-23-1990 12:59 ~ FROM Ut: Yankee' Corp TO-P.04

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--issa,acategorized"according.to the sub-parts of Contention.

.VII, which' Vermont has made'no decision to implement.

- i Q.2

-Please-produce each and every documpa that SOV r

contends supports the assertions nite )y dov in sub-part "c" of its contention VII.

A.2 See the Response to Document Request No. 1.

Q.3 Please. produce each and every document that SOV contends supports the assertions made by SOV in sub-part'"d" of its Contention-VII.

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A.3' See the Response to Document Request No.

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'Q.4 Please produceLeach and every document that 50V contends supports:the assertions made by SOV.in sub-part "e" of its Contention VII.

A.4 Sec the Response-to Document Request No.

1.

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Q.5 Please produce each and every document that SOV-.

contends supports the assertions made by.SOV~in sub-part tq" of its Contention VII.

A.5 See the Response to Document Request No.

1.

Q.6 Please produce each 'and every document that SOV contends supports the assertions.made by SOV in sub-part "h(1)" of its Contention VII.

A.6 See the Rosponse to Document Request No.

1.

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i Q.7 Please produce each and overy document that SOV contends supports the assertions mado by Sov in sub-part "h(2)" of its contention VII.

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See-the Response to Document Request No. 1.

Q.8-Please produce each and~every document that:SOV contends supports the assertions madeLby SOV in.sub-part "j" of its Contentian VII.

A.8 See the Response to Document Requent No.

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Q.9 P. lease produce each and every document that SOV coatends supports the assertions made by SOV in sub-part "k" of its contention VII.

A.9 See the Response to Document Request No.

1.

Q.10 Please produce each and every document that SOV contends supports the assertions made by SOV in suba part "m" of its contention VII.

A.10

.See the Response to Document-Request No.

1.

Q.11 Please produce each and every document that Sov-contendsrsupports the assertions made by SOV in sub-part "n" of-its contention VII.

A.11

-See the Response to Document l Request No. 1.

Q.12 Please produce each and every document that SOV contends supports the assertions made by SOV in sub-part "1" of its contention VIII.

A.12 See the Response to Document Request No. 1.

.Q.13 Please produce each and every document that SOV contends: supports-the assertions made by SOV in sub-part "n" of its' Contention VIII.

A.13 See the Response to Document Requent lk>.

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Q.14 Please produce each and every document' that SOV contends supports the ascertions made by SOV in sub-part "o" of -its cotstention VIII.

A.14 See < the Response to Document -Request No.1.

g Q.15 Please produce each and every document, other than those produced or identified) in response to the preceding reques(ts, that SOV contends supports the

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,r assertions made by Sov in its. contention VII; A.15 Vermont objects to this' request as overbroad, asking without specificity for "each and every document" supporting Contention VII.

Notwithstanding and without waiving this objection, Vernont states that documents:which.

support contention VII are those acquired from Vermont y

. Yankee through discovery and those referenced in responses to Vermont Yankee Interrogatories.

These documents will be L

produced for inspection and copying.

Q.16 With respect to every expert whom-SOV has retained or, i

otherwise consulted for.the purposes!of these proceedings, please produces (a) for each expert retained, all; documents that reflect, crefer, or relate-to any. communications, direct or indirect, between SOV and the expert, or p

L any-person or entity affiliated w'ith or acting. on behalf of the expert, prior to SOV's retention of L

the expert; L

(b) for each expert retained, all documents that h

reflect or refer to either or both the (i) date and (ii) terms of SOV's retention of the expert, including (but not limited to) any and all i

retention agreements; (c) fo'r each expert consulted, all documenta that reflect or refer to either or both the (i) date(s) and (ii) terms of the consultation, including (but f

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(d) lforfeach expert, all docunents that' reflect,-

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refer, or relate to any communications between sov i

and any other individual, agency, or other-entity I

concerning the-expert; (c) for each expert, all documents prepared-(in whole-

j or in part)-by that expert which SOV intends to.

offer into evidence or otherwise rely upon'at-trial; and a

(f) for each expert retained to testify at trial all documents upon which the expert's testimony w,ill be based.

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A.16 (a)

Vermont objects to this ' request on the grounds that it is overbroad in asking for documents without limitation either.as to time or subject matter, and that i

consequently it would be extraordinarily burdensome:for Vermont'to search its files (including ancient ones in

. public records storage) dating back to time immemorial to-L determine what such documents, if any, even exist.

Vermont further objects on. the grounds that such documents,. if ~ they exist, either constitute privileged trial pteparation y

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materials i

or are irrelevant to the proceeding:and are.not i

reasonably calculated to lead to the discovery of admissible evidence.

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L 8 Due to the.overbroad nature of this request, vermont has not identified the specific documents, if any,.to which this privilege applies.

Such identification of privileged materials would require Vermont to attempt first to search for those documents that would be responsive to this request, which as proviously noted would be excessively burdensome.

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(b)

Ver=ent will produce for inspection and' copying-

~all of'the requested documents.

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(c)

Vermont will produce for inspection.and< copying' all of the requested documents.

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(d)

Vermont objects to this request on the grounds that it is overbroad.in.asking for. documents without' limitation either as to time or sub$ect matter, and that=

consequently'it would be extraordinarily. burdensome for-

-Vermont to search its files (including ancient ones.in public records storage)-dating back to tims immemorial to determine what such' documents, if any, even-exist.

Vermont further objects on the grcunds that such documents, if they exist, either-constitute privileged materials (attorney -

client communic tions or trial preparation materials),8 or' L

are irrelevant to the'proceecing.and are not' reasonably calculated to lead to the discovery of admissible evidence.

(e)

If " rely upon at trial" encompasses documents i

=(other than those that Vermont intends to offer in. evidence) that contain or reflect Vermont's litigation strategy (e.g.',

l 3 Due to the overbread nature of this request, Vermont has not' identified the specific documents, if any, to which these privileges apply.

=Such identification of privileged materials

=would require Vermont to attempt first to search for those documents that would be responsive to this request, which as previously noted would be excessively burcensome.

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proposed cross-examination questions for Vermont Yankee Witnesses)', then Vermont objects'to this request;on the.

I grounds that these documents, if they exist, are protected by attornoy-client privilege and/or constitute, privileged s

trial preparation materials.

Without vaiving this objection, Vermont responds "none."'

t (f)

To the extent that this request seeks documents (other than those that vermont intends to offer.in. evidence.

and those to which an expert'c testimony will refer) that contain or reflect Vermont's litigation strategy (e.g.,

communications to or frem counsel concerning possible subject matters to include in testimony), then -Vermont objects to.this requeat on the grounds that these documents, if they exist, are protected by attorney-client privilege and/or constitute privileged trial preparation materials, 4

Without vaiving these objections, Vermont states that it has not made a decision as'to the documents on which the testimony of its expert (s) will be based.

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'i Q.17 For every employee er official of SOV whom SOV intends to offer as a witness, please produce:

(a) all. documents which reflect or. refer to the technical qualifications of the witness; (b) all documents which reflect or refer to the duties, responsibilities, and/or terms of employment of the witness; 7

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(c)U Lall docunents prepared (in whole'or in part)'by the witnaiss which SOV intends to offer into.

' evidence or otherwise rely upon at trial; and (d) all docunents upon which the witness'sitestimony_

will be~ based.

JA.17 (a): Vermont has not made a decision to offer _any Vermont employee or_ official as a witness.

(b)

See the response.to the-foregoing sub-part.

(c)

If " rely upon at trial" encompasses documents (other than those that-Vermont intends to offer in evidence)L that contain or reflect verment's litigation strategy - (e.g.,

proposed cross-examination questions for Vermont Yankee witnesses), then Vermont objects to_this request en the-grounds that these documents, if they exist, are protected ~

by attorney-client privilege and/or constitute privAleged 4

trial preparation materials.

Without waiving;this

. objection,' vermont states that !it has not made a (.ecision to offer any Vermont employee or official as a witness.

(d)

To the extent that this request seeks documents 4

(other than those that Vermont intends to offer in evidence and those to which a witness's testimony will refer).that contain or reflect Vermont's litigation strategy (e.g.,

communications to or: from counsel concerning possible subject' matters to include in testimony), then Vermont objects to this request on the grounds that these documents, if they exist, are protected by attorney-client privilege 8

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and/or constitute. privileged trial; preparation materials.

Without vaiving'these objections, Vermont. states that it has not made a. decision to offer any Vermont employee or official as'a witness.

Q.18 Pleare produce:

'(a) all documents, not produced in response to one:of' the. foregoing requests, that reflect, refer, or relate to any communications between Sov and:any other-individual, agency, or entity concerning, these proceedings; (b) all documents, not produced in response to one of the foregoing roquests,-that reflect, refer,.or relate to any communications between Sov and any other individual, agency, or-other entity concerning the subject matter of these:

1 proceedings; and c

(c) all documents, not produced in response to one,of-the foregoing requests, that refer or relate to the subject matter of these proceedings.

A.18 Vermont strongly objects to this request-for "all

=

documents" as overbroad and burdensome, and blatantly encompassing documents that are irrelevant or privileged-(attorney-client communications, trial preparation materials, and advisory communications to the Governor of vermont that are protected by executive privilege)4'and that

' Due-to the overbroad nature of this request, Vermont has not: identified the specific documents which are-responsive to.

this request and:which are privileged.

Such identification of privileged' materials would require Vermont to attempt first to search for all documents that would be responsive to this request, which as previously noted would be excessively burdensome.

It is obvious that there are vast numbers of responsive documents that are privileged:

every attorney-client 9

Yeni.e' 7 _.e cxp.

.12.

c, pug-IP-lido',:ics.F: Ott o

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if f

thus lie;well beyond the scope of legitimate discovery.

{

Notwithstanding-and without-Waiving these objections, Vermont will produce for inspecticn and copying.d1 requested =nonpriviloged documents that it has'been able to g

1 identify.

i By its a

torney, K rt J on Special Assistant Attorney-ceneral a

Department of PubliciService.

-i 120 State Street Montpelier, Vermont 05602

~

(802) 828-2811 Dated:

August 28,~1990 t

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f l~

communication concerning this proceeding, every document containing trini preparation materials concerning this proceeding, and every advisory communication to the Governor concerning:this proceeding.

a 10

-TOTAL P.12

_ _