ML20140G064

Memorandum & Order Granting & Denying,In Part,Bl Rorem Et Al 860311 Motion to Compel Applicant to Fully Respond to Interrogatories 10 & 13 Re Const Assessment Program & Torrey Pines Technology,Respectively.Served on 860331

ML20140G064
Person / Time
Site:	Braidwood
Issue date:	03/28/1986
From:	Grossman H Atomic Safety and Licensing Board Panel
To:	ROREM, B.
References
CON-#286-598 79-410-03-OL, 79-410-3-OL, LBP-86-7, OL, NUDOCS 8604010257
Download: ML20140G064 (7)

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ggVED MAR 3r 1W SEVED MAR 31 food LBP43EKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g NAR 31 40:22 ATOMIC SAFETY AND LICENSING BOARD ggcE a 3RANW "

Before A.dministrative Judges:

Herbert Grossman, Chairman Richard F. Cole A. Dixon Callihan

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In the Matter of ) Docket Nos. 50-456-OL

) 50-457-OL

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COMMONWEALTH EDISON COMPANY ) ASLBP No. 79-410-03-OL

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(Braidwood Station, Unit Nos.1 and 2) ) March 28, 1986

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MEMORANDUM AND ORDER (Granting, In Part, And Denying, In Part, Intervenors' Motion To Compel)

By Motion dated March 11, 1986, Intervenors Bridget Little Rorem, et al., moved to compel Applicant to fully respond to Interrogatory Nos. 10 and 13 to which Applicant had objected. Interrogatory No. 10, in general, requests the identification and description in detail of studies evaluating the "Braidwood Construction Assessment Program" (BCAP), certain " corrective action programs", and a " Ongoing Correc-tive Action Program." Interrogatory No.13 asks for a description in detail of all work performed by Torrey Pines Technology with respect to quality assurance or corrective action programs.

8604010257 B60328 _

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,y ;p q Applicant's opposition to Intervenor's motion to compel, dated March 21,1986, contends that portions of the interrogatories to be answered (by narrative or through the production of pertinent docu-ments) fall under attorney-client or attorney work product ' privilege, for which Intervenors have not made the requisite showing of substan-tial need to overcome privilege.

We agree with Applicant that Intervenors have made no showing of substantial need for privileged material, and grant Intervenor's motion only with respect to those documents that we determine are not privileged.

MEM0RANDUM As a threshold matter, Applicant urges us to adopt the reasoning (and application) of Rule 26(b)(4) ofthe Federal Rules of Civil Pro-cedure, which permits the discovery of the facts or opinions of a non-testifying expert only "upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by any other means."

Applicant cites three Licensing Board opinions I that have adopted 1 Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility),

.(FootnoteContinued)

o 2

the provisions of Federal Rule 26(b)(4), and only one that has refused. Applicant's Response at 3-4 Having read those four cases, it is clear to us that the decision on whether to adopt Rule 26(b)(4),

in the absence of a parallel NRC rule or decision by higher authority, is still open to the interpretation of this Board. We are satisfied that the system adopted by Federal Civil Procedure Rule 26(b)(4) makes good sense in keeping discovery to the essentials of the adversary's case without encroaching upon that party's ability to seek expert assistance, and that a decision by us to adopt that procedure, con-sistent with all the recent Licensing Board opinions, would promote a desired uniformity in application. We therefore apply the substance of Rule 26(b)(4) of the Rules of Civil Procedure to this proceeding.

Accordingly, on the assurance of Applicant (Response at 6), based upan the affidavit of its counsel, that Torrey Pines Technology, Inc. was employed exclusively by counsel to provide expert assistance in coun-sel's preparation for litigation in this case, that Applicant has no present intention of calling any employee of that organization as a witness, and that no information concerning conclusions reached by (FootnoteContinued)

LBP-85-38, 22 NRC 604, 609-10 (1985); Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant, Units 1 & 2), LBP-83-27A, 17 NRC 971, 976-79 (1983); Public Service Co, of New Hampshire (Seabrook Station, Units 1 & 2), LBP-83-17,17 NRC 490, 497 (1983).

2 General Electric Co. (Vallecitos Nuclear Center, General Electric Test Reactor), LBP-79-33, 8 NRC 462, 465-68 (1978).

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i Torrey Pines has been communicated by counsel to any of Applicant's employees, we determine that Interrogatory No. 13, which relates solely to work performed by Torrey Pines, need not be answered. If, however, our further discussion indicates that Applicant's definition of " preparation for. litigation" is too broad, Applicant should reeval-uate its withholding of the requested infomation.

Applicant objects to describing or producing drafts of documents relating to the "BCAP" (Braidwood Construction Assessment Program),

"BCAP Quality Assurance," " corrective action reports," and " Corrective Action Program." Applicant asserts either the attorney-client or work product privilege on the grounds that its counsel played a substantial role in preparing these documents and that they were prepared in the anticipation of litigating the issues which they address. Applicant's Response at 10. Nowhere in the motion papers is there a description of the aforementioned programs or re' ports. As we understand them, however, these programs and reports were assumed by Applicant under its obligations to NRC Staff and the Commission's regulations. That the drafts may have been prepared with an eye towards litigation and by Applicant's attorneys, rather than its technical staff and consul-tants, should be of more . interest to NRC's technical staff than to the Licensing Board. The input of counsel to documents required under

. the regulatory process and otherwise discoverable cannot immunize these documents from discovery. Counsel in this case were assisting

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in a management function that is outside the scope of both attorney-client and work product privilege. To the extent that these drafts and other documents relate to the quality assurance issues admitted in this proceeding, they should be divulged. We do not decide whether counsel's handwritten notes and comments on any of the drafts (Appli-cant's Response at 12) need be divulged, since Intervenors have declined to " seek the disclosure of mental expressions, conclusions, opinions or legal theories of Applicant's counsel" (Motion at 3).

Ccuasel may delete those handwritten notes and coments from the produced copies.

A further category of documents withheld by Applicant consists of compilations of materials and conclusions of an evaluation of various programs at the Braidwood site performed by a Special Assistant to the company's Manager of Projects, the purpose of which was to aid Appli-cant's counsel in preparing for licensing hearing. The results of the Special Assistant's analysis were comunicated only to counsel, the Braidwood Project Manager, and Comonwealth Edison's Manager of Projects. Applicant asserts the work product privilege for these documents and assures that all factual matters set forth in these reports had been made available to Intervenors during the discovery process. Applicant's Response at 13. On the facts stated, as sworn to by Applicant's counsel and uncontradicted by Intervenors, we agree that these documents would be privileged as " prepared in the

anticipation of litigation or for trial by or for another party or by or for that other party's representative ***" (emphasis added) under Since, Rule 26(b)(3) of the Federal Rules of Civil Procedure.

however,10 C.F.R. 5 2.740(b)(2) establishes the privilege for trial preparation materials only if the documents are prepared "by or for another party's representative" and omits the phrase "by or for another. party," it is debatable whether' our regulations intended to depart from the Federal Rules by making documents prepared by a party itself in preparation for trial discoverable, or whether it assumed that if they were prepared "for" its representative they already fit {

under the privilege. While we gravitate towards the latter interpre-

-tation, we find it unnecessary to decide since, in this instance, under the circumstances set forth by Applicant and its affiant, we detemine that these documents are covered by the attorney-client privilege, in any event.

In sumary, we determine that Intervenors have failed to make the showing required under 10 C.F.R. 5 2.740(b)(2) that they have "sub-stantial need of the materials in the preparation of this case." To the extent that the documents are privileged, . discovery is denied.

On the other hand, we have determined, above, that certain of the documents which relate to the admitted quality assurance issues should not be considered as trial preparation materials where they have been

I prepared to satisfy Applicant's obligations to NRC' Staff and under the regulations.

ORDER For all the foregoing reasons and based upon a consideration of the entire record in this matter, it is, this 28th day of March,1986, ORDERED,

1. That the parties apply the principles enunciated in the foregoing memorandum to the disputed documents; and

2. That any documents remaining in dispute be brought to the Chair-man's attention immediately by any party so that the matter can be resolved expeditiously through a conference call.

FOR THE ATOMIC SAFETY AND LICENSli:0, BOARD SW" Herbert Grossman, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland.

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