ML030780004

TVA - Licensee Exhibit 112 - Rec'D 04/30/02: Tva'S Memorandum on the Admissibility of Depositions

ML030780004
Person / Time
Site:	Browns Ferry, Watts Bar, Sequoyah
Issue date:	04/30/2002
From:	Marquand B Tennessee Valley Authority
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
+adjud/ruledam200506, 50-259-CIVP, 50-260-CIVP, 50-296-CIVP, 50-327-CIVP, 50-328-CIVP, 50-390-CIVP, ASLBP 01-791-01-CIVP, EA 99-234, RAS 5971, TVA-Licensee-112
Download: ML030780004 (4)

Text

ens sT1 56-3qErCIVIfel, a-/ 4:cehsee lkh~dbt- P^c¢/usfr/z UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF ) Docket Nos. 50-390-CivP;

) 50-327-CivP; 50-328-CivP; TENNESSEE VALLEY AUTHORITY ) 50-259-CivP; 50-260-CivP;

) 50-296-CivP

)

(Watts Bar Nuclear Plant, Unit 1; ) ASLBP No. 01-791-01-CivP Sequoyah Nuclear Plant, Units 1 & 2; )

Browns Ferry Nuclear Plant, ) EA 99-234 Units 1, 2, & 3) )

TENNESSEE VALLEY AUTHORITY'S MEMORANDUM ON THE ADMISSIBILITY OF DEPOSITIONS This memorandum addresses the admissibility of depositions under Rule 32(a)(2) of the Federal Rules of Civil Procedure. The law places the burden of establishing that the requirements of Rule 32 have been met squarely on the shoulders of the offeror of a deposition. 7 Moore's § 32.02[1][b]; Allegeier v. United States, 909TF.2d 869, 876 (6th Cir. 1990); Rascon v. Hardiman, 803 F.2d 269, 277 (7th Cir.

1986). This is so because the common law rule prefers live testimony over a deposition. 7 Moore's Federal Practice 3d, § 32.02[1][a] (2002).

Rule 32 provides for the deposition of "a party or of anyone wh6 at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rules 30(b)(6) or 31(a) to testify" to be used by an adverse party for any purpose. In this case it is clear that TVA and not Mr. McGrath is a party to this proceeding. Furthermore, he is neither an officer or director of TVA nor was he designated under Rules 30(b)(6) or 31(a) to testify on TVA's behalf. The sole question is whether he was a "managing agent" at the time of his deposition. Reed Paper. Co.:'v.

G.l, . . a n Procter& Gamble, 144 F.R.D. 2 (D. Me. 1992). See also Rabin v. General Tire and letnla4-tyzRt Tl A-W >\1

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- L;uEAR REGULATRY COM.$JM , USNRC ad N So - f o om k a 2003 MAR I I All 8: 55 thaomof 7Y14 OFFICE t a 1IL StLhJ LIAiY Staff IDENTC71ED RULEDICAKINGS AND Applicant V RECEIVEDIV ADJUDICATIONS STAFF Intervenr_ REJECTED Other WITHDRAWN DATE a/o /Z Witnes.

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Rubber Co., 18 F.R.D. 51, 56 (S.D.N.Y. 1955); In re Honda American Motor Co.,

168 F.R.D. 535, 540 (D. Md. 1996); Boston Diagnostics Development Corp. v.

Kollsman Mfg. Co., 123 F.R.D. 415, 416-17 (D. Mass. 1988); Petition of Manor Investment Co., 43 F.R.D. 299, 300-01 (SDNY 1967). At the time of Mr. McGrath's deposition, he no longer worked in TVA's Nuclear Power organization. Instead, he worked in a separate non-nuclear division of TVA. Under those circumstances he was not 'at the time of his deposition" authorized to speak for TVA Nuclear and his deposition would be inadmissible under Rule 32(a)(2). Reed Paper Co. 144 F.R.D. at 5 ("It being clear that Hughes was not employed by the corporate defendant in this case at the time of the taking of his deposition, there is no occasion to determine whether or not he was, in fact, a managing agent."). Second, he was not a "managing agent" as required by the Rule. "The question then becomes whether [he] is invested with general powers to exercise [his] discretion and judgment in dealing with corporate matters,". . . "the fact that a person fails to qualify as one exercising general powers involving the exercise of discretion and judgment with respect to corporate matters is of great.significance in determining whether that person should be permitted to bind the corporation inddeposition by testimony." Reed Paper Co. 144 F.R.D. at 5,6. While Mr. McGrath was the Acting Manager of Operations Support within TVA's Nuclear Power organization he did not have general authority to legally bind the organization.

As stated by the Court Reed Paper Co.:

[W]here there is question about the existence of an agency relationship of the kind required by the Rule, that question is the foundational question to be resolved in determining whether or not, under the Rule's language, the corporation should be bound in deposition by the testimony of the employee. It is apparent to the Court that the theory of the provision in the Rule is that the corporation may properly and fairly be treated as bound by statements of a person who is authorized to act for the corporation with general powers involving the exercise of discretion and judgment in respect to corporate affairs. The theory is one of "a speaking agency." The requirement of general powers is intended to assure that the scope of the authority granted to the employee in question may fairly be taken to be broad enough to contemplate that the employee 2

may speak for the corporation in doing business on behalf of the corporation. If this theory is correct, and I believe it to be, then it is of fundamental importance that there be an agency relationship between the corporation to be deposed and the employee to be utilized to speak for the corporation in the deposition, and that the agency relationship be of sufficient breadth to justify the conclusion that the corporation may fairly be bound by what the agent says in respect to his management of corporate affairs [144 F.R.D. at 7 n. 4].

Under the circumstances here, Mr. McGrath's deposition is not admissible under Rule 32(a)(2) since at the time of his deposition he was not a "managing agent" of TVA's Nuclear Power organization.

Office of the General Counsel Respectfully submitted, Tennessee Valley Authority 400 West Summit Hill Drive Maureen H. Dunn Knoxville, Tennessee 37902-1401 General Counsel Facsimile 865-632-6718 Thomas F. Fine Assistant General Counsel John E. Slater Senior Litigation Attorney Of Counsel:

David A. Repka, Esq.

Winston & Strawn Brent R. Marquand (TN No. 4717) 1400 L Street, NW Senior Litigation Attorne' Washington, D.C. 20005 Telephone 865-632-4251 003694499 Attorneys for TVA 3