ML20024D055

Answer Opposing Util Motion to Compel Further Answers to interrogatories.Work-product Privilege Claimed. Certificate of Svc Encl.Related Correspondence

ML20024D055
Person / Time
Site:	Diablo Canyon
Issue date:	07/27/1983
From:	Durbin S CALIFORNIA, STATE OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8308030095
Download: ML20024D055 (10)

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In the Matter of ) 11 9 PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 0.L.

) 50-323 O.L.

(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) )

)

ANSWER OF GOVERNOR DEUKMEJIAN TO APPLICANT'S MOTION TO COMPEL FURTHER ANSWERS TO INTERROGATORIES INTERROGATORIES On June 27 , 198 3, Governor George Deukmejian filed and served a timely response to the first set of interrogatories propounded to him by applicant Pacific Gas and Electric Company (PG&E) . PG&E has filed a " Motion to Compel Answers to Interrogatories to Governor Deukmejian" (Motion) , which the Governor hereby answers.

As a preliminary matter, it should be noted that at l pages 1 and 2 of the Motion, PG&E accuses the Governor of l

l- failing to answer some interrogatories, and cites Illinois

! Power Company (Clinton Power S tation, Unit 1) LBP-81-61 (1981) 14 NRC 1735 for the proposition that, absent a protective order, no party may be excused for a failure to respond to a discovery request. The distinction is crucial. Here, no party has failed to respond -- i.e. , to file an appropriate response

-- to the discovery requests. Rather, the Governor responded 7, 1.

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f in a timely manner, answering some of the interrogatories and objecting to others.

, The rules are clear that a party objecting to an interrogatory may state its grounds for objection in the same document that contains the answers to interrogatories to which no objection is made, with "the reasons for objection . . .

stated in lieu of an answer." (10 C.F.R. S 2.740b(b) . ) This conforms to universal practice under the Federal Rules of Civil

l

Procedu re (4A Moore's Federal Practice (2d ed. 1983) 1 33.27,

p.33-160 et seq.), which this commission customarily follows (e.g., Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2) ALAB-182 (1974 ) RAI-7 4-3, 210, 218).

The responses to the Motion, as they pertain to the specific interrogatories, follow.

INTERROGATORY NO. 3 The Governor's response to this interrogatory clearly distinguished between materials prepared by or at the direction of counsel in anticipation of litigation -- which are plainly covered by the work-product privilege -- and other materials, for which no objection was interposed. There can be no dispute that the " examinations, reviews, studies, analyses, or the like" (Interrog. No. 3) performed by attorneys in preparation for trial, and those of the c.ttorneys' consultants performed exclusively for counsel to aid in trial preparation, are the very essence of work-product, unconditionally protected from disclosure . (Fed . R. Civ. P r oc . , rule 26 (b) (3); Upiohn Co. v.

United States (1981) 449 U.S. 383, 401.) It is, frankly, 2.

remarkable to see an interrogatory call for disclosure of such materials.

Strangely, PG&E argues (Motion, p. 3) that because it asks the Governor to " identify" the materials, rather than to produc e . them, the work-product privilege of 10 C.F.R. section 2.740 (b) (2) , which refers to " discovery of documents and other tangible things" is unavailable. No authority is cited for the proposition that asking to have matters listed does not constitute " discovery" of them, nor is any logic for such a proposition evident. (Indeed, were that the case, one would l

cast about for authority under which PG&E sought such d iscovery. ) Section 2.740 (b) (1), to which section 2.740 (b) (2) specifically re fers, limits all discovery to matters "not privileged." PG&E's request is obviously subj ect to the f

wor k-produc t privilege.

PG&E further objects that the Governor f ailed to list the documents not identified on claim of privilege. Individual enumeration of documents may ordinarily be required to substantiate a claim of privilege, but where the terms of the interrogatory itself make it clear privileged materials are called for, no listing of the privileged documents is required.

Furthermore, to the extent that enumeration of the documents in question would identify the priority counsel has assigned to various issues, such a " pattern of investigation" is itself protected by the work-product privilege and cannot be f

compelled -- even if the underlying documents themselves are not privileged. (In re Grand Jury Subpoena (6 th Cir. 1980) 622 3.

F.2d 933, 935; James Julian, Inc. v. Raytheon Co. (D. Del. 1982) 93 F.R.D. 138, 144.)

We emphasize that the documents at issue here contain only two kinds of information: data received from PG&E and its contractors, which PG&E already has, and the work-product of counsel, to which PG&E is not entitled.

INTERROGATORY NOS. 5-7 The issue here is not a claim of privilege at all, but merely the PG&E's dissatisf action with the information known to the Governor. The Governor agrees PG&E is entitled to the

-information sought, insofar as he, his counsel, or consultants have such in for mation. Interrogatories 5 through 7 ask for an enumeration of structures, systems, and components "important-to-safety" and not " Class I. " The answers state that the information is not presently known, . that the question is being investigated, and that supplemental answers will provide whatever responsive information is ascertained. The answers go on to identify the sources from which the answer is being sought.

PG&E protests the claimed lack of knowledge -- a unique application of the motion to compel. If the Governor's expert is really an expert, PG&E asserts, he should already have the answers. Charitably put, PG&E's assertion is a non sequitur. Not every person having " extensive knowledge of 1

nuclear power plants" (Motion, p. 9) can list each and every  ;

str uc ture , system, or component important-to-safety, much less the subset of them not categorized as Class I.

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T' Just as there is no objection to these interr oga tories, there is no dispute that the Governor is under an obligation seasonably to . supplement his answers when the information is known. That supplement is presently expected around the end of August.

INTERROGATORY NO. 14 Once again, there is no objection. The answer identified the ITRs that have been reviewed and states that at the time of the answer, the points of disagreement could not be listed. Again, the Governor indicates his - intention to supplement the answer in a timely fashion. Again, PG&E's citation of authority why its interrogatory is not objectionable is superfluous. This supplement is also expected around the end of August.

A CLOSING NOTE PG&E's should not be surprised at the unequal amounts' a of information being discovered by the parties at this stage of the proceeding. As the applicant, owner, and constructor of the power plant, PG&E will perforce have a disproportionate share of the relevant information. Nearly two decades of continuous activity naturally leave PG&E in a better position to summon up the grounds on which it defends its license application. It is also noteworthy that the present Governor and his counsel have been in this case only six months; while they have access to the prior administration's consultants, the f

positions taken in this administration will not be the same as those of its predecessor. While PG&E may be impatient with t

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these circumstances, it doubtless shares the Governor's desire that positions taken by the state's representative be based on careful review.

There is no question that the Governor w!.ll make full disclosure of his position in this litigation and of the f acts underlying that position. The only real dispute underlying the instant motion is whether the theories and r. ental impressions of counsel and its consultants can be discovered; on that point the Governor stands on the well-established work-product privilege.

Dated: July 27, 1983 JOHN K. VAN DE KAMP, Attorney General of the State of California ANDREA SHERIDAN ORDIN, Chief Assistant Attorney Genera '

MICHAEL J. STRUMWASSER, Special l Counsel to the Attorney General l SUSAN L. DURBIN, i

PETER H. KAUFMAN, Deputy Attorneys General By (

SUSAN L. DURBIN Mb Attorneys for Governor George Deukmejian 3580 Wilshire Boulevard Suite 800 Los Angeles, California 90010 (215) 736-2102 6.

f UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

)

In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 O.L.

) 50-32 3 0.L.

(Diablo Canyon Nuclear Power )

Plan t, Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that on this date I caused copies of the foregoing " Answer of Governor Deukmejian to Applicant's Motion to Compel Further Answers to Interrogatories" served on the following by U.S. Mail, first class, postage prepaid.

Hon. Nunzio Palladino, Chairman U.S. Nuclear Regulatory Commission 1717 H S treet, N.W.

Washing ton, D.C. 20555 Hon. Victor Gilinsky, Commissioner U.S. Nuclear Regulatory Commission 1717 H S treet, N.W.

Washing ton, D.C. 20 555 Hon. Thomas Roberts, Commissioner U.S. Nuclear Regulatory Commission 1717 H S treet, N.W.

Washing ton, D.C. 20555 1.

,_ - . _ _ _ _- . - . , . . _ . . _ _ . . ._ _ ._~ . _ _ _ __ . . _ _ _ _ _

Hon. James Asselstine, Commissioner U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washing ton, D.C. 20555 Hon. John Ahearne, Commissioner U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washing ton, D.C. 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 Hon. Thomas S. Moore, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 Hon. W. Reed Johnson Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Wash ing ton, D.C. 20555 Hon. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washing to n, D.C. 20555 Judge John F. Wolf, Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 Judge Glenn O. Bright Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 Judge Jerry R. Kline Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washing ton, D.C. - 20555 Harold Denton Director of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 Leonard Bickwit, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 2.

Lawrenco Ch ndler, Esq.

Henry J. McGurren, Esq.

Office of Executive Legal Director BETH 042 U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 Secretary U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 Attention: Docketing and Service Section Mrs. Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, CA 93401 Janice E. Kerr, Esq.

Public Utilities Commission 5246 State Building 350 McAllister Street San Francisco, CA 94102 Mrs. Raye Fleming 1920 Mattie Road Shell Beach, CA 93449 Mr. Frederick Eissler Scenic Shoreline Preservation Confe rence, Inc.

46 23 More Mesa Drive Santa Barbara, CA 93105 Gordon Silver Sandra A. Silver 1760 Alisal Street San Luis Obispo, CA 93401 Joel R. Reynolds, Esq.

Eric Havian, Esq.

John Phillips, Esq.

Center for Law in the Public Interest 10951 West Pico Boulevard, Third Floor Los Angeles, CA 90064 Bruce Norton, Esq.

Norton, Burke, Berry & French 2002 East Osborn P.O. Box 10569 Phoenix, AZ 85064 Philip A. Crane, Jr., Esq.

Richard F. Locke, Esq.

Pacific Gas and Electric Company P.O. Box 7442 San Francisco, CA 94120 3.

I I

_ .. _ _ . _ _ _ _. ___. J

David S. Fleischaker, Esq.

P . O. Box 1178 Oklahoma City, OK 73101 F

Arthur C. Gehr, Esq. N, Snell & 'Wilmer 3100 Valley Bank Center s Phoenix, AZ 85073 s

Mr. Richard B. Hubbard i MHB Technical Associates 'i 1723 Hamilton Avenue, Suite K San Jose, CA 95125 \ \

l Mr. Carl Neiberger I Telegram Tribune P. O. Box 112 (,

San Luis Obispo, CA 93402 (g Virginia and Gordon Bruno Pecho Ranch P.O. Box 6289 '

Los Osos, CA 93402 Nancy Culver 192 Luneta San Luis Obispo, CA 93401 Maurice Axelrad, Esq.

Lowenstein, Newman, Reis, & Axelrad 10 25 Connecticut Avenue, N.W.

Washing ton, D.C. 20036 l DATED: July 27, 1983 JOHN K. VAN DE KAMP, Attorney General of the State of California ANDREA SHERIDAN ORDIN, Chief

! Assistant Attorney General MICHAEL J. STRUMWASSER, Special Counsel to the Attorney General SUSAN L. DURB IN ,

PETER H. KAUFMAN, l Deputy Attorneys General l

l By &$/L SUSAN L. DURBIN ~

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Attorneys for Governor George Deukmejian 3580 Wilshire Bculevard Suite 800 Los Angeles, California 90G10 (213) 736-2102 l 4.

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