ML20237K092

Memorandum & Order.* Order Denying Bp Garde Motion to Quash Subpoena & Request for Oral Argument.Appropriate Time to Assert atty-client Privilege & Work Product Doctrine When Bp Garde Testifies.Served on 870715.Reserved on 870814

ML20237K092
Person / Time
Site:	South Texas
Issue date:	07/15/1987
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Garde B GOVERNMENT ACCOUNTABILITY PROJECT
References
CON-#387-4227 CLI-87-08, CLI-87-8, OL, NUDOCS 8708190087
Download: ML20237K092 (7)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'87 JUL 15 P12:15 ,

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' COMMISSIONERS: p COM s'..

Lando W. Zech, Jr. , Chairman '

Thomas M. Roberts l Frederick M. Bernthal SERVED JUL 151987 Kenneth M. Carr l i

In the matter of: We-SEVED AUG 1M Docket Nos. 50-498 6L l Houston Lighting and Power Company 50-499 OL J l

(SouthTexasProject)

CLI-87-08 {

MEMORANDUM AND ORDER On May 20, 1987, the NRC Executive Director for Operations (EDO) l subpoenaed Billie P. Garde, Esq. of the Government Accountability Project (GAP) to testify before NRC personnel concerning safety allegations of current f and former employees of the South Texas Project and any other safety I. allegations regarding the South Texas Project. The subpoena further requested Ms. Garde to provide any records or documer.ts regarding the allegations.

Ms. Garde now moves to quash the subpoena, arguing that compliance with O has no

.the subpoena would compromise the public health and safety, the ED l

authority to issue the subpoena; and the attorney-client privilege and work t Movant product doctrine preclude divulgement of the information requested.

also requests oral argument on the motion.

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8708190087 870715 fO N PDR ADOCK 05000498.

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2' Houston Lighting"and Power Company and the NRC Staff filed responses to the' motion on June 11, 1987.

Ms. Garde also filed a reply to.the NRC staff's response on' June'25, 1967.

I. Background _

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• Beginning in January 1*07 Ms. Garde informed the NRC that GAP had I .

conmenced an investigation into allegations concerning the safety of the South Texas nuclear project.; According to Ms. Garde, GAP received these' safety allegations.from approximately 36 current and fonner employees of the South GAP informed the. NRC that upon completion of the investigation

j. Texas Project. * '

it would, issue a public report, but in the interim it would not advise its clients to provide the allegations to'the NRC Region IV, office because of 1,ts-lack of confidence in the office's ability to comply with regulatory requirements.

Thus GAP advised the NRC that unless it was willing to provide.

independent inspectors to process the allegations, GAP would turn over the allegations to the State Attorney General's office, congressional conmittees, and other regulatory and municipal bodies interested .in ensuring the public safety at thE South Texas plant.

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i The subpoena was issued in support of the staff's responsibility to pursue and resolve allegations bearing on NRC licensed activities, but w issued in connection with a pending' licensing or enforcement adjudication on the South Texas Project. Thus, the Houston Lighting & Power Company is not, strictly speaking, a party to the dispute over the' Nonetheless, thesubpoena Commissionand has has no le cognizable interest in-its enforcement. considered the utility's views resolution of the issues.

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Correspondence followed between the NRC Executive Director of Operations Essentially GAP desires an (E00) and GAP regarding allegations managernent.

investigation of the allegations by an NRC employee or task force independent of Region IV. The ED0 is of the position that the South Texas Project is r

located in Region IV, and the personnel in that region can adequately .,

j investigate the allegations; and in any event, GAP should turn over the allegations to the agency so that the agency can~ determine the proper handling l of them. After repeated requests for the infonnation, the E00 issued -

a subpoena requesting Ms. Garde to testify and produce documents regarding the South Texas allegations on May 26, 1987 at 9:00 a.m. at the NRC, Room 6507, 7735 Old Georgetown Road, Bethesda, Maryland. On May 22, 1987, attorneys for Ms. Garde agreed to move "to Ms. Garde and the NRC entered into an agreement.

quash the.c.,nbpoena by Friday, May 29, 1987, and the NRC agreed to cont appearance date for the subpoeiia from May 26, 1987 until fourteen days af the decision on the motion to quash, unless the parties agreed on an earlier date.

II. Analysis i

A, Compliance With the Subpoena Would Compromise the Public Health and Safety.

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Ms. Garde cites no authority for her first argun.ent which is based on her belief that Region IV and the EDO could not competeritly ir./estigate the allegations. Compliance with the subpoena would not compromise the public health and safety. In fact, the converse is true. Failure of the NRC to obtain the allegations would mor.e likely compromise the public health and Moreover, the safety, particularly if the allegations are substantiated. 1

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\ agency has demonstrated its comitment to protect health and safety through

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I the rigorous and repeated efforts of-the EDOLto obtain the allegations, which culminated in' issuance of the subpoena.

ED0's Authority to Issue the Subpoenaf B.

Contrary to Garde's assertions, the EDO clearly had the authority to issue the subpoena. The Comission is authorized to issue subpoenas pursuant to 42 U.S.C. 2201(c) (section 161c of the Atomic Energy Act). It further has thepowertodelegatethisauthorityconsistentwith42U.S.C.5849(section L

209(b) of the Energy Reorganization Act) and 10 C.F.R. 1.40, which provide that the' EDO shall perform such furctions as the Conunission may. direct. See f alsoAtomicEnergyAct6.161n,42U.S.C.2201(n). The Comission delegated the authority to issue subpoenas to the EDO-in 1982. This delegated 103-0214 which responsibility has been incorporated in the NRC Manual Chapter

... issuing provides:"The'[ED0],...isspecifically-responsiblefor:

subpoenas under Section 161c of the Atomic . Energy Act of'1954, as amende where necessary or appropriate for the conduct of inspections or-investigations." Thus, Garde's argument that the EDO lacked authority to issue the subpoena is without merit.

C.

Attorney-Client Privilege and Work Product Doctrine Ms. Garde claims that she can not comply with the subpoena, because the l'

withheld information is protected by the attorney-client privilege and the work product doctrine. The Comission does not reach these issues, because

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j Ms. Garde has not provided sufficient factual information in her~ affidavit, retainer agreement. or other supplemental documents upon which the Comission can make the determination that all the relevant information that the subpoena requests _is protected by the attorney-client privilege or work product doctrine, See N.L.R.B. v. Harvey, 349 F.2d 900 (4th Cir. 1965). ,

The Comission notes however, that based on a review of the information i

that Ms. Garde has provided, on its face, it appears that she possesses at least some information that is not withholdable under the attorney-client The attorney-client privilege or shielded by the work product doctrine.

privilege applies if: i (1)theassertedholderoftheprivilegeisaclient;(2)theperson ,

to whom the communication was made (a) is a member of the bar of a court, and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of '

strangers (c) for the purpose of securing iii)assistanceinsome (primarily either (i) an opinion on law or (ii) legal services or legal proceeding, and not (d) for the purpose of comitting a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

The Eagle-Picher Industries, Inc. v. United States _,11 C1. Ct. 452 (1987).

work product doctrine is a qualified privilege which protects documents and Id.; Fed. R.

tangible items prepared in anticipation of litigation or trial.

Civ.P.26(b)(3);10C.F.R.2.740(b)(2). Fact work product is discoverable upon showings of substantial need and inability without undue hardship to Id.; see obtain the substantial equivalent of the materials by other means.

Hickman v. Taylor, 329 U.S. 495, 510-12 (1947); In re Murphy, 560 F.2d 326, 334(8thCir.1977). Opinion work product (mental impressions, conclusions, i opinions, or legal theories) may be discoverable upon extraordinary 1 justification. See_ Hickman,_ 329 U.S. at 513; In re Murphy, 560 F.2d at 336.

20, 1987 As the utility points out, Ms. Garde indicated in her January letter to the ED0 and the Attorney General for the State of Texas that GAP l

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i either represents or "is working with" approximately 36 current or fo.mer employees of the South Texas plant. Attachment 2 to Garde's Motion to Quash.

Obviously, the attorney-client privilege cannot attach if there is no client.

l' Thus, the presumption.. is that communications with the employees l that GAP "is working with" as opposed to representing, are not a part of or protected by the attorney-client privilege.

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Furthermore, it is unclear from the facts before the Commission whether

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Ms. Garde was acting in a. legal capacity when she gathered allegations from If she was not employees for the purpose of having them reviewed by the NRC.

acting in such a capacity, it would be questionable as to whether the comuni-E cations made at that juncture would be protected by the attorney-client privilege. ~Also, Ms. Garde seeks to withhold the identities of her clients.

Assuming arguendo that the attorney-client privilege applies, generally the

, N.L.R.B., 349 identity of an attorney's client is not considered privileged.

F.2d at 904.

Moreover, it is offficult to detennine from the information thus far provided whether the privileged nature of the information, if any, has -

See Artesian Industries, Inc.

been waived, thereby terminating the privilege.

v. Department of Health and Human Services, 646 F.Supp. 1004, 1008 (D.D.C.

1986), citing In re Grand Jury Investigation of Ocean Transportation _, 604 F.2d 672',675(D.C.Cir.1979),; cert,deniedsubnom. Sea-LandService,Inc.v.

UnitedStates,444U.S.915(1979). It appears that GAP intends to revedl at least some of the information when it releases its public report.  !

1 The Consnission also lacks sufficient data to determine whether th The f

. product doctrine applies to all documents requested under the subpoena.

Commission would need more information regarding the circumstances surrounding the creation of each document in order to make that determination. Also, since it is unclear whether the attorney-client privilege is applicable, it is p:

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7 equally unclear whether logically any of the documents could be attorney work product. Other questions include whether Ms. Garde prepared the documents in anticipation of litigation and whether work product documents, if any, are discoverable under the substantial need exception. See 10 C.F.R. 2.740(b)(2);

Fed. R. Civ. P. 26(b)(3).

The Comission's view is that the more appropriate time for Ms. Garde tc i

assert the attorney-client privilege and work product doctrine is when Ms. Garde testifies regarding specific questions posed, in response to the subpoena. At that time she may invoke privileges which she believes are applicable and explain their relationship to the information sought by the Comission. Her assertion of them at this time is premature. .

Therefore, the motion to quash the subpoena and the request for oral argument are denied. Unless the parties agree otherwise, Ms. Garde shall 6507, 7735 Old appear 14 days after the date of this decision at Room Georgetown Road, Bethesda, Maryland at 9:00 a.m. to testify and produce documents concerning allegations bearing on safety at tne South Texas plant, I pursuant to the May 22, 1987 agreement between Ms. Garde and the NRC.

It is so ORDERED.

[U%g , F r the Comission *

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O s $h .I ./ SAMUEL J. CHILK Secretary of (the Comission 9 , *gr) ('i***pF

• Commissioner Carr was not present for the affirmation of this Order. If he had been present he would have approved it.

Dated at Washington, DC this

[5 K day of July, 1987

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