ML20045D838

Gap Response to Intervenor Info & Brief Concerning Motion for Protective Order.* Intervenor Has Not Established That Six Tapes Protected by Work Product Doctrine.W/Certificate of Svc & Svc List

ML20045D838
Person / Time
Site:	Vogtle
Issue date:	06/18/1993
From:	Lamberski J SHAW, PITTMAN, POTTS & TROWBRIDGE, TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA
To:	Atomic Safety and Licensing Board Panel
References
CON-#293-14055 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9306300112
Download: ML20045D838 (25)

Text

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UNITED STATES OF AMERICA o Nig NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

'93 AN 21 A9 :37 In the Matter of Docket Nos. 50-424-OLA-3 #

GEORGIA POWER COMPANY, *

'(,','

et al.

• 50-425-OLA-3 4

(Vogtle Electric

• Re: License Amendment Generating Plant, *

(Transfer to Southern l Units 1 and 2)

• Nuclear)

• ASLBP No. 93-671-01-OLA-3 i

GEORGIA POWER COMPANY'S RESPONSE TO INTERVENOR'S INFORMATION AND BRIEF CONCERNING MOTION FOR PROTECTIVE ORDER I. INTRODUCTION On June 1, 1993, the Licensing Board issued a Memorandum and Order (hereinafter " Order") authorizing Intervenor to provide the l

Board with (1) affidavits dea.onstrating that the Six Tapes are privileged based on how they were prepared and kept confidential, and (2) a legal brief supporting the application of the work product doctrine to the Six Tapes. The Order states that the affidavits should " address each of the points made" in Georgia Power Company's ("GPC's") May 27, 1993 Response to Intervenor's l Request for a Protective Order. Order at 2. l On June 9, 1993, counsel for Intervenor, in response to the Board's Order, filed Intervenor's Information and Brief Concerning Motion For Protective Order (hereinafter,  !

"Intervenor's Brief"). Intervenor's Brief requests the Board to find that the Six Tapes are protected from discovery by the work product doctrine.

9306300112 930618

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-A Having received approval from the Board to file this  !

response, GPC submits that Intervenor has failed to establish .

that the Six Tapes are protected by the work product doctrine and ,

that, in any event, the Six Tapes are discoverable as statements by a party. Moreover, to the extent the Six Tapes may be characterized as attorney work product, Intervenor has waived-protection afforded by the work product. doctrine through his affirmative actions. Furthermore, GPC has substantial need for the Six Tapes which outweighs Intervenor's tenuous claim of privilege. The Six Tapes comprise the specific statements upon which Mr. Mosbaugh's allegations are based. GPC needs this-information in order to' address Intervenor's allegations and prepare a defense. Finally, Intervenor's arguments against

. disclosure during the pendency of an on-going NRC investigation arc premised on Intervenor's incorrect application of the NRC's rules of practice. ,

Therefore, GPC requests that the Board compel the production of all tape recordings relevant to this proceeding in the possession, custody or control of Intervenor, including his counsel and agents.  ;

II. FACTUAL BACKGROUND The factual background of this matter is stated in GPC's May 27, 1993 Response to Intervenor's Request for a Protective j Order. Intervenor's Brief does not dispute those facts. .

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P l III. ARGUMENT A. Intervenor Has Failed To Show That The Six Tapes Are Attorney Work Product.

Intervenor has failed to demonstrate that the Six Tapes are protected by the attorney work product doctrine. Intervenor has i

not established that the Six Tapes were prepared in anticipation  :

1 of litigation or that they reflect any analyses, opinions, mental impressions or theories of his counsel. Also, his explanation of l the circumstances under which the Six Tapes were prepared is ambiguous and inconsistent with prior statements, raising l

questions of credibility and failing to satisfy his burden of persuasion.

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! The work product doctrine is narrow, and its application I

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must .'a demonstrated by Intervenor.

The work product doctrine . . . is, like other privilege rules, to be narrowly construed because its application can derogate from the search for the truth.

The party seeking to invoke the work product doctrine bears the burden of establishing all the elements that trigger protection; doubts must be resolved against the party asserting the privilege.

United States v. 22.80 Acres of Land, 107 F.R.D. 20, 21 (N.D.

Cal. 1985).

The work-product rule does not extend to every written l document generated by an attorney; it does not shield from disclosure everything that a lawyer does. Its purpose is more narrow, its reach more modest. . . .

[T]he purpose of the privilege is to encourage effective legal representation within the framework of the adversarv system by removing counsel's fears that his thoughts and information will be invaded by his adversary. In other words, the privilege focuses on the integrity of the adversary trial process itself. .

. . This focus on the integrity of the trial process is reflected in the specific limitation of the

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privilege to materials " prepared in anticipation of litigation or for trial."

Coastal States Gas Corp. v. DOE, 617 F.2d 854, 865 (D.C. Cir.  ;

1980), cuotina Jordan v. U.S. Dept. of Justice, 591 F.2d 753, 775 (D.C. Cir. 1978) (emphasis in the original).

As shown below, Intervenor's statements do not show that the Six Tapes were prepared in anticipation of litigation or for j trial. At best, they show that the Six Tapes were prepared as l i

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! the basis for Mr. Mosbaugh's 2.206 petition and for the investigation by NRC's Office of Investigations ("OI"). There is

' l no hearing normally or automatically associated with a 2.206 l

petition or an OI investigation; and while t th such matters

' 1 could lead to litigation in the form of an enforcement proceeding l l

to which GPC would necessarily be a party, Mr. Mosbaugh would not I have standing to intervene unless he opposed the enforcement I

action. Hel,lotti v. NRC, 725 F.2d 1380 (D.C. Cir. 1983). In l

l sum, Mr. Mosbaugh is no more than an informant supplying information to the agency with no legitimate expectation that such information could .ead to litigation in which he will be a party. Consequently, se 'x Tapes prepared as the basis for i

such a petition cannot be fairly characterized as being prepared in anticipation of litigation or trial. Further, as shown below, the role of counsel in the preparation of the tapes was limited.

It appears that counsel's role was no greater than a mere request i 1

for relevant information.

In a deposition of Mr. Mosbaugh in his Department of Labor 1

(" DOL") proceedings, Intervenor's counsel stated that most of the I

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Six Tapes "have been provided in relation to my representation of Mr. Mosbaugh for the NRC [with respect to the S 2.206 petition .

! filed by Messrs. Hobby and Mosbaugh on September 11, 1990), and I

i not in this [ DOL) proceeding."I/ In an affidavit in the DOL i

proceedings, Mr. Mosbaugh averred, I began working on a petition I was about to file with I the NRC. This petition would set out details of many l of my allegations (but would not include information NRC-OI investigator Larry Robinson requested that I not l

include in the petition just prior to its submission).

. . . I then obtained legal advice from counsel about whether I should immediately release the tape recordings to the NRC (we decided to retain the tapes i until the NRC requested them or until GPC questioned j l

the accuracy or veracity of my allegations). At that l point I began to make copies of portions of the tapes  ;

that concerned some of the more critical aspects of my <

l safety allegations and sent them to my counsel so he l

could rely on the information contains3d therein when drafting the petition I was getting ready to submit to the NRC. I also listened to the tapes in order to I prepare numerous detailed written statements of my I safety allegations to the NRC (which I submitted to the NRC between June-August, 1990).

i Mosbauch v. GPC, DOL Case No. 91-ERA-11, Affidavit of Allen L.

Mosbaugh (May 14, 1991), Paragraph 34.

Mr. Mosbaugh's statements show that the Six Tapes were prepared by Mr. Mosbaugh, were prepared in connection with the filing of his 2.206 petition and the OI investigation, and were not prepared in connection with the DOL proceedings. The statements do not indicate a real involvement of Mr. Mosbaugh's counsel in preparing the Six Tapes.

1/ Egg Deposition of Allen L. Mosbaugh, Mosbauch v. GPC, DOL Case No. 90-ERA-58, at 22-24, attached as Exhibit 3 to Georgia Power Company's Response to Intervenor's Request for a Protective Order (May 27, 1993).

i In this proceeding, Intervenor has made conflicting statements. Intervenor first asserted, In June of 1990, Allen Mosbaugh's counsel had excerpts l of certain tape recording prepared. . . . A total of six (6) such tape recordings were made in preparation of litigation before the U.S. Department of Labor. The recordings were also utilized by counsel to file a petition with the Chairman to the U.S. Nuclear i Regulatory Commission on September 11, 1990 (emphasis i supplied).

Allen L. Mosbaugh's Response to The Board's April 21, 1993

! Scheduling Order and Request for a Protective Order (May 14, 1993), Paragraph 1.  ;

i This statement artfully avoids admitting that the Six Tapes j were prepared by Mr. Mosbaugh, and not by his counsel. Further,

! i j contrary to the explicit statement in the DOL proceeding that the 1 l Six Tapes were not provided to Intervenor's counsel in connection with that proceeding, Intervenor claims in this proceeding that j the Six Tapes were made in preparation of litigation before DOL.

GPC believes that Intervenor's attempt to suggest that the Six l Tapes were prepared in connection with the DOL proceeding, l

, contrary to previous statements, may reflect Intervenor's 1

recognition that Mr. Mosbaugh's selection of relevant information from previously-created tapes in order to draft allegations for submission to the NRC does not constitute preparation in anticipation of litigation.

After GPC pointed out this inconsistency (sag GPC's May 27, 1993 Response to Intervenor's Request for a Protective Order),

Intervenor offered yet another explanation for the preparation of l the tapes. In Intervenor's response to G?C's interrogatories, l

I

i Intervenor objected to the release of the Six Tapes because they

' " represent intervenor's counsel's preparation of anticipated

rebuttal evidence." Intervenor's Response to the First Set of Interrogatories of Georgia Power Company (June 2, 1993) at 4.

l Intervenor further stated:

Between May and August of 1990, intervenor and his counsel discussed Mr. Mosbaugh's initiation of

- proceedings before the NRC pursuant to 30 C.F.R.

52.206, and were generally discussing matters related to the filing of a proceeding under S 210 of the Energy Reorganization Act. In order to formulate legal strategies and to prepare a rtrategy to rebut licensee's anticipated denial of allegations raised in the 2.206 petition, intervenor and his counsel worked closely in extracting selected portions of tape ,

recordings that counsel planned to use as rebuttal evidence when the licensee responded to 2.206 petition (sic).

Id. at 5. Later, in response to GPC's Interrogatory No. 5, Intervenor stated:

Intervenor filed a S 2.206 petition filed (sic) the NRC on September 11, 1990. Thereafter, at the written request of NRC, the licensee filed a response to the 52.206 petition. As anticipated, licensee denied wrongdoing and attempted to_ place blame on intervenor.

Intervenor then relied on excerpts of tape recordings to rebut licensee's response.

Id. at 8.

l In sum, after the accuracy of Intervenor's claim that the Six Tapes were prepared in anticipation of the DOL litigation was questioned, Intervenor suggested for the first time that there might be some other link to litigation, by characterizing the tapes as anticipated " rebuttal evidence." This imaginative new explanation that the tapes represent counsel's preparation of anticipated " rebuttal evidence" cannot be reconciled with

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Intervenor's earlier statements that the Six Tapes were prepared to support the drafting of the 2.206 petition end for the OI investigation. That Intervenor may later have relied on the Six

, Tapes to prepare supplements to his 2.206 petition (GPC knows of' no other document that might be considered a " rebuttal"), does not transform those tapes into material prepared in anticipation

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of litigation.

Intervenor now states:

2. The method I chose to employ to properly represent Mr. Mosbaugh during legal proceedings before the NRC and, subsequently, before the DOL was as follows:

After discussions with my client, wherein he would identify a sequence of events, Mr. Mosbaugh was instructed by counsel to make excerpts of relevant taped conversations. Mr. Mosbaugh made excerpted segments from the original recordings and produced six tape recordings of excerpted conversations (hereinafter "Six Tapes").

3. The execrpted segments of the Six Tapes represent portions of 277 original tape recordings, which after consulting with Mr. Mosbaugh about the facts of the case, I deemed were significant and necessary to prepare for Mr.

Mosbaugh's litigation.

4. Mr. Mosbaugh, at his counsel's instructions, prepared the Six Tapes for his counsel's preparation of litightion.

I had the Six Tapes produced as preparatory material for the filing of a petition with the NRC pursuant to 10 C.F.R. S 2.206, with respect to confidential proceedings Mr. Mosbaugh had initiated with the NRC Office of Investigations ("OI")

in June of 1990, and later I relied on these excerpted recordings to prepare for Mr. Mosbaugh's then pending Section 210 case, DOL Case No. 90-ERA-58.

Intervenor's Brief, Affidavit of Michael D. Kohn (June 9, 1993),

Paragraphs 2-4.

Mr. Kohn's most recent statements show that the Six Tapes were prepared by Mr. Mosbaugh to support the drafting of the 2.206 petition and in connection with the 01 investigation. As

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previously discussed, GPC submits that information, created or ]

l prepared by an informant who would not have standing as a party '

in any enforcement proceeding that might result, should not be l

l considered to have been prepared in anticipation of litigation or l

for trial. That Intervenor's counsel may have later relied on the tapes to prepare for the DOL case does not alter the purpose for which the Six Tapes were originally prepared.

Mr. Kohn's statements also suggest that the role of 1

Intervenor's counsel was limited to discussing the facts and then asking that tape excerpts be made. While Intervenor's counsel may view this information to be significant, there is no indication that counsel actually screened the recordings himself I'

and identified specific statements to be copied. After the paragraphs quoted above, Mr. Kohn's affidavit sums up by stating, The creation of the Six Tapes constitutes my work product inasmuch as they represent information I identified for duplication and integrates this information into an organization sequence of my choosing, while it also edited out information I deemed irrelevant.

1 Id. at Paragraph 5.

This statement is conclusory. GPC assumes it only signifies that Mr. Kohn asked Mr. Mosbaugh to prepare tape excerpts related to the events they had discussed. Intervenor's counsel has never indicated that he personally listened to tapes to identify specific statements to be copied or edited out. Indeed, when asked about the original tapes during Mr. Mosbaugh's deposition in the DOL proceedings, Mr. Kohn remarked on the record, "I have not had a chance even to review or listen to most of them."

Deposition of Allen L. Mosbaugh, supra note 1, at 5. This remark is significant because Mr. Mosbaugh later testified in the same deposition that "I have recorded some segments and provided them to my attorney." Id. at 23. Consequently, at a time when Mr.

Mosbaugh had already provided the Six Tapes to his counsel, his counsel indicated on the record thct he had not even reviewed or listened to most of the original tapes.

Mr. Kohn's affidavit does no more than establish that Mr.

Mosbaugh collected relevant information. Turning over relevant information to his counsel does not protect that information from discovery. See Lpna Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1158 (1982) ("[t]he attorney-client privilege does not protect against discovery of underlying facts from their source, merely because those facts have been communicated to an attorney"). Mr. Mosbaugh's actions are analogous to a client selecting relevant written documents from a larger universe of documents. Such an effort obviously does not protect the selected documents from' discovery.

Significantly, Mr. Kohn's affidavit fails to set forth facts which would indicate that he participated in the actual selection of relevant information in any way.

Intervenor's Brief, at 3, attempts to support its position that the Six Tapes are protected work product by drawing an analogy between Mr. Kohn's mere receipt of tape recorded l information thought relevant by Mr. Mosbaugh and an Eighth  !

Circuit case involving the creation of computer tapes containing 1

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specific data selected solely by counsel from a larger universe l of data in anticipation of litigation (In re Chrysler Motors I

Corn. Overnicht Evaluation Procram Litiaation, 860 F.2d 844, 845-i l

6 (8th Cir. 1988)). While that caso and the instant case both l

involve information recorded on tapes that was sought during discovery, the analogy otherwise breaks down. In Chrysler l

Motors, the tapes themselves were created by counsel; no taped i I

! data existed prior to counsel's efforts. In the present proceeding, in contrast, the relevant taped information was created in conversations prior to Mr. Mosbaugh's retention of I counsel in May 1990. Moreover, in Chrysler Motors the court l determined that the computer tapes were ordinary work product because the information was personally selected by Chrysler's counsel, based on what counsel believed to be relevant for trial preparation. Id. Furthermore, the court found that Chrysler had waived any work product protection by voluntarily disclosing the computer tapes, noting that "[c]onfidentiality is the dispositive factor in deciding whether (material] is privileged." Id. at 847, quoting Chubb Intecrated Systems Ltd. v. National Bank of Washinaton, 103 F.R.D. 52, 67 (D.D.C. 1984).

Mr. Mosbaugh's actions of selectively copying tape recorded  !

information he deemed relevant and passing this information along to counsel to assist in the drafting of a 2.206 petition does not constitute work product. Moreover, as the cases discussed above clearly indicate, confidentiality is the touchstone of the work product doctrine and Mr. Mosbaugh (as discussed further in

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I Section III.C below) has taken numerous actions indicating that virtually the only party he is attempting to prevent access to the information is the Georgia Power Company.

B. GPC Has A Right To A Copy Of The Prior Statements of Its Employees, Regardless of Whether the Dix Tapes Constitute l

l Attorney Work Product.

l As previously discussed in GPC's May 27, 1993 Response (at l

l 5-7), Federal Rule of Civil Procedure 26(b) (3) , and case law on l

which the Rule is based, recognizes that statements of a party are discoverable, even if att'orney work product, without showing substantial need of the materials ou undue hardship in obtaining the information through an alternate means.1/ Intervenor's Brief failed to address, much less rebut, GPC's position of entitlement to the Six Tapes on this basis.

C. Assuming, Arguendo, That The Six Tapes Are Attorney Work Product, Intervenor's Historic Actions constitute A Waiver i

Of Work Product Doctrine Protection. j Even if the Six Tapes constituted work product, Intervenor has waived any claim of privilege by using the Six Tapes as the l

basis for the 2.206 petition, as the basis for a rebuttal to licensee's response to that petition, and consequently, as the I basis for his pleadings in this proceeding. Where the substance of work product documents is subsequently presented as testimony, 1/ A " statement previously made" specifically includes, under the Rule, a recording which is substantially a verbatim recital of an oral statement by the person making it and contemporaneously recorded.

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l-l the work proauct privilege is waived. United States v. Noble,  ;

, I 422 U.S. 225, 239 (1975) (holding that where report of attorney's j l

investigation was not produced, the investigator was properly l precluded from testifying) ; See also American Ladder & Scaffold Co. v. Eadie, 120 So.2d 65 (Fla. Dist. Ct. App. 1960) (waiver by using affidavit of witness); Chubb Intearated Systems Ltd. v.

National Bank of Washincton, 103 F.R.D. at 63 (disclosure of the

" gist of documents" otherwise covered by the attorney-client and work product privileges is a waiver of the privileges). It is inappropriate to submit allegations in a 2.206 petition and in i

the pleadings in this proceeding while at the same time attempting to avoid disclosing the basis for those allegations on claims that the material was prepared in anticipation of l

litigation. Such a tactic offends fundamental notions of fairness.

Intervenor has also waived any claims of privilege by providing the tapes to third parties. Intervenor's factual assertions through affidavits that neither he nor his counsel waived any work product protection that may exist by providing the Sir Tapes to the news media are troabling. Both the Michael Kohn affidavit (at Paragraph 14) and the Allen Mosbaugh affidavit (at Paragraph 3) contain only qualified assertions of lack of knowledge concerning the release of the Six Tapes to the news media by stating that they have no "first hand (sic) knowledge" about how NBC obtained the Six Tape segment. CPC believes that 1

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this phraseology may be carefully chosen to avoid disclosure to ,

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the Board of Mr. Kohn's and Mr. Mosbaugh's complete knowledge.1/ '

l Intervenor has admitted to communications with members of the media who sought access to the tapes (see Intervenor's Response to Interrogatory No.7) and obviously participated with NBC in the preparation of this news segment.S/ It is simply incredible that Intervenor has no knowledge of the manner in I which NBC obtained the Six Tapes. Moreover, Intervenor's failure J to preclude such wide disclosure of the Six Tapes is inconsistent

! with its current claim of work product protection.

l If the statements of Mr. Mosbaugh and Mr. Kohn are to be believed, then NBC must have obtained the tapes from one of two 1

sources: the NRC's Office of Investigations ("OI") or the l Congressional Subcommittee on Oversight and Investigations.

Release of the tapes to NBC by OI would violate both its fundamental mission and its investigative procedures, thus  ;

subjecting the offending party to sanctions under 10 C.F.R.  !

II This " firsthand knowledge" qualification appears to be an established technique employed by Mr. Kohn. The use of the term segregates knowledge based on direct, personal observation from the universe of knowledge possessed by a person, including relevant, material information based on oral admissions, gee Mqgkauch v. Georcia Power Co., DOL Case Nos. 91-ERA-1 and 11, hearing transcript dated March 11, 1992, at 384, (relevant portion attached as Exhibit 1).

In the relevant exchange, Mr. Mosbaugh's secondhand knowledge was relevant, material and adverse to his position.

II According to the NBC broadcast, Mosbaugh supplied information to NBC News regarding the circumstances i surrounding the communications being taped, the context of the communications and, GPC believes, the wording ascribed to the tapes by NRC investigators.

S 0.735. Release by the Congressional Subcommittee, in contrast, would not be unlawful. But such a release clearly indicates that the confidentiality " understanding" asserted by Mr. Kohn was illusory and non-existent. Thus, such a disclosure by the Subcommittee would demonstrate that Intervenor provided the Six Tapes without a legitimate expectation of confidentiality.A/

In addition, during the course of Mr. Mosbaugh's DOL proceeding, Mr.-Mosbaugh provided GPC with a copy of a tape recording made by Intervenor'on July 11, 1990. GPC can only assume that this copy is a portion of the Six Tapes, since Intervenor's prior response to GPC's Interrogatory No. 3 asserts that the Six Tapes ~are the only copies that Mr. Mosbaugh made of the original 277 tape recordings. Intervenor's Brief, at 3, characterizes the Six Tapes as a " compendium of relevant evidence." As such, GPC submits that Mr. Mosbaugh's act of providing a portion of the Six Tapes comprising the compendium should constitute a waiver of any privilege as to the remaining contents of the compendium (i.e., the Six Tapes).

1/ The Board will note that the only evidence previously provided by Intervenor regarding his contacts with the Congressional Subcommittee is a letter from Congressman Dingell requesting the Six Tapes. That letter does not offer assurances of confidentiality. Heg Intervenor's May 14, 1993 filing. Moreover, Intervenor was surely aware of the NBC News broadcast and heard the tape played. Thus, he should be required to explain what effort, if any, he made to determine how this allegedly carefully protected tape was obtained by NBC in spite of the confidentiality

" understanding" that purportedly existed between the Intervenor and the Subcommittee.

Finally, the affidavit of Mr. Kohn, at Paragraph 12, refers mysteriously to communications with "another governmental entity l with investigatory powers," yet does not provide sufficient information to allow the Board to determine whether an additional act of waiver has occurred. Intervenor has not met its burden of showing that waiver has not occurred. Rather the facts, as selected and incomplete as they may be, establish a waiver of any attorney work product protection.

D. Intervenor's Lacks Standing to Assert Defenses to Discovery Available Only To The NRC Intervenor continues to assert arguments that properly reside with the NRC as a basis for denying GPC an opportunity to review the Six Tapes. Moreover, Intervenor is not in a position  ;

to know what information may or may not interfere with NRC ,

l investigations and lacks standing to object to discovery on such a basis. Intervenor cites 10 C.F.R. S 2.790(a) (7) (Intervenor's Brief at 6) as if it had some relevance to this discovery request. However, that provision is available only to the NRC Staff (see S 2.744). Intervenor's obligations are established by ,

l 10 C.F.R. SS 2.740 and 2.741. I 1

i E. GPC Has a Substantial Need for the Six Tapes Intervenor has made serious allegations against GPC in this proceeding, and the Six Tapes are the basis for those allegations. G"C has a substantial need to identify those specific statements so that it can respond to the allegations and

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I prepare its defense. This need outweighs Intervenor's dubious claims of privilege.

The Six Tapes will also be important to-assess Intervenor's credibility. GPC believes that Intervenor's allegations are.

untrue and unsupported. Identifying the specific statements that Mr. Mosbaugh relied upon, and the specific statements that he edited out, will reveal whether Mr. Mosbaugh has acted in good faith or whether he has exaggerated and mischaracterized the evidence.

Eventual access to the tapes in the NRC's possession will not be a good substitute. While access to those tapes will make available the universe of recorded conversations, it will not allow ready identification of the statements that Mr. Mosbaugh ,

used to formulate his allegations. During cross-examination, GPC may wish to question Mr. Mosbaugh on the specific statements to show that his allegations are unsupported. If such statements have been identified, GPC could pursue such questioning in a straight-forward and expeditious manner. If the specific statements that Mr. Mosbaugh compiled as the. basis for his allegations are not disclosed, GPC will be forced to parse all the tapes and make guesses regarding the basis provided by the I Six Tapes.

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IV. CONCLUSION Intervenor has not established that the Six Tapes are protected by the work product doctrine. Nor has he established that the Six Tapes were prepared in anticipation of Litigation or for trial, or that counsel was involved in preparing the tapes.

In any event, GpC has a right to statements by a party .

Further, Intervenor's selected disclosure and use of the i

information contained on the Six Tapes to further his purposes in  ;

(1) filing a 2.206 petition with the Commission, (2) pleading factual basis in this proceeding, (3) gaining an audience with I the House Subcommittee, as well as (4) seeking a public forum by cooperating with the news media, when viewed as a whole remove any legitimate expectation of confidentiality and constitute a waiver of work product doctrins protection. Intervenor should not be permitted to adjudicate his serious allegations without being required to fully disclose the basis for those allegations l in discovery.

Accordingly, for the foregoing reasons, the Board should compel the production of all the tape recordings, including the Six Tapes, in the possession, custody or control of Intervenor, including his counsel and agents.

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Dated: June 18, 1993. /

'h'n ' Lambelski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.

Atlanta, GA 30308-2216 (404) 885-3360 Ernest L. Blake, Jr., Esq.

David R. Lewis, Esq.

SHAW, PITTMAN, POTTS &

TROWBRIDGE 2300 N Street, NW Washington, DC 20037 (202) 663-8084 Counsel for Georgia Power Company i i l

UNITED STATES OF AMERICA ;f.[h.[

l NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING UOARD In the Matter of

• l GEORGIA POWER COMPANY,

• Docket Hos. 50-424-OLA-3 '

g [j

• 50-425-OLA-3 -h et al. ,

(Vogtle Electric

• Re: License Amendment j Generating Plant, * (Transfer to Southern i Units 1 and 2)

• Nuclear)

• ASLBP No. 93-671-01-OLA-3 l

CERTIFICATE OF SERVICE This is to certify that copies of the within and foregoing

" GEORGIA POWER COMPANY'S RESPONSE TO INTERVENOR'S INFORMATION AND I BRIEF CONCERNING MOTION FOR PROTECTIVE ORDER" were served on all those listed on the attached service list by depositing same with an overnight express mail delivery service.

This is the 18th day of June, 1993.

A J n famber' ski ROUTMAN SANDERS Suite 5200 600 Peachtree. Street, N.E.

Atlanta, GA 30308-2216 (404) 885-3360

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

• 1

• I GEORGIA POWER COMPANY,

• Docket Nos. 50-424-OLA-3 l 91 Al.

• 50-425-OLA-3 (Vogtle Electric

• Re: License Amendment Generating Plant, * (Transfer to Southern Units 1 and 2)

• Nuclear)

• ASLBP No. 93-671-01-OLA-3 SERVICE LIST Administrative Judge Stewart D. Ebneter Peter B. Block, Chairman Regional Administrator Atomic Safety and Licensing USNRC, Region II Board 101 Marietta Street, NW U.S. Nuclear Regulatory Suite 2900 Commission Atlanta, Georgia 30303 Washington, D.C. 20555 office of the Secretary Administrative Judge U.S. Nuclear Regulatory James H. Carpenter Commission Atomic Safety and Licensing Washington, D. C. 20555 Board ATTN: Docketing and U.S. Nuclear Regulatory Services Branch Commission Washington, D.C. 20555 Charles Barth, Esq.

Office of General Counsel Administrative Judge One White Flint North Thomas D. Murphy Stop 15B18 Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory Washington, D. C. 20555 Commission Washington, D.C. 20555 Director, l Environmental Protection Michael D. Kohn, Esq. Division i Kohn, Kohn & Colapinto, P.C. Department of Natural 517 Florida Avenue, N.W. Resources Washington, D.C. 20001 205 Butler Street, S.E.

Suite 1252 Office of Commission Appellate Atlanta, Georgia 30334 Adjudication i One White Flint North I 11555 Rockville Pike I Rockville, MD 20852 l ATTENTION: Docketing and i Service Branch I

I

~. - - ___

I EXHIBIT 1 Page 236 BEFORE THE UNITED STATES DEPARTMENT OF LABOR i

ALLEN L. MOSBAUGH, a

VOLUME 11 Complainant, a

Case Nos. 91-ERA-01 vs.  : 91. ERA-11 GEORGIA POWER COMPANY, Respondent.  :

Hearing Room A, Suite 2400, 101 Marietta Tower, i 101 Marietta Street, N.W.,

Atlanta, Georgia l Wednesday, March 11, 1992 {

The above_ entitled matter came on for hearing, pursuant to Adjournment, at 9:00 a.m.

BEFORE:

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HON. ROBERT M. GLENNON, Administrative Law Judge APPEARANCES:

Qn behalf of the Comolainant MICHAEL D. KOHN, Attorney, STEPHEN M. KOHN, Attorney, Kohn, Kohn & Colapinto, )

517 Florida Avenue, N.W.,

Washington, D.C. 20001 SANDRA MICHAELS, Attorney, 142 Mitchell Street, S.W.,

suite 300, Atlanta, Georgia 30303 I

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l Page 383 l 1 very briefly --

1 2 JUDGE GLENNON: Go ahead. l i

3 BY MR. JOINER: '

4 Q. Let me refer you to Exhibit Number 23 which would l 5 be in the front part of the book. Do you have that?  ;

6 A. Yes, I do.

7 Q. Do you recognize it?

8 A. Yes, I do.

9 Q. It's a letter to you; correct?

10 A. That's correct.

11 Q. And it's from a Stuart Ebnetter, Regional 12 Administrator of the NRC; right?

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( 13 A. That's correct.

14 Q. Okay. It says that one of the tapes you provided 15 to the NRC may contain safeguards information; right?

l 16 A. That's what it says.

l 17 Q. It says the tape in question recorded the l 18 regulatory effectiveness review inspection exit meeting on 19 April 13, 1990; right?

20 A. That's correct.

! h 21 Q. Yes. It says "We request that you turn this tape i l

22 recording over to the NRC."

a s 23 A. That's correct.

$' 24 Q. Have you turned it over to the NRC7 l 7 25 A. Yes, I have.

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F Page 384 1 Q. Who did you turn it over to?

2 A. Mr. Dave McGuire.

3 Q. When did you do that? -

4 A. Yesterday morning.

5 Q. Yesterday morning. Uh-huh.

6 Did you play that tape for anybody?

7 A. Mr. Timmons listened to that tape.

p 8 Q. Mr. Timmons listened to that tape. Is Mr. Timmons 9 currently cleared to receive safeguards information b 10 concerning Plant Vogtle?

k 11 MR. STEPHEN KOHN Your Honor --

f 12 MR. JOINER: It's a simple question, your Honor.

13 MR. STEPHEN KOHN: If it's the witness' opinion I 14 don't know if he has any firsthand knowledge of it.

$s 15 JUDGE GLENNON: Let's hear what he has to say.

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s 16 THE WITNESS: I don't have any firsthand knowledge.

.I'; 17 Mr. Frank Timmons did indicate yesterday that he was not.  !

18 BY MR. JOINER:

5 19 Q. He was not cleared for safeguards information at

[ 20 Plant Vogtle.

j. 21 Have you played this tape for your lawyers?

! 22 A. No.

23 Q. Never played it for your lawyers?

24 A. No.

25 Q. Have you played it for anybody else? I

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1 Page 385 l

1 A. Never.

2 MR. JOINER: It's a good time for a break.

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3 JUDGE GLENNON: We'll take a short recess, ten I

4 minutes or so.

5 (A brief recess.)

6 JUDGE GLENNON: We will resume the hearing.

7 BY MR. JOINER:

8 Q_ Mr. Mosbaugh, to shift gears for a minute and 9 talking now about the diesel gene ator event that took place 10 in March of 1990; correct?

11 The site area emergency?

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12 Q. Yes.

13 A. Yes.

14 Q. Now I want to ask you some questions first about 15 the event itself, and I heard your description of the event 16 and the testimony that you gave yesterday, and it was a very

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17 vivid description, and I want to ask you about some of the  !

i 3 18 particulars.

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19 You remember yesterday you were talking about the 20 hatch cover that was open.

21 A. Yes.

22 Q. And the danger that was posed by virtue of that 23 hatch cover being open, you remember that testLmony?

24 A. Yes, I do.

25 Q. Okay. Now, in fact, Mr. Mosbaugh, this was not a l

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