ML19207B428
| ML19207B428 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 07/24/1979 |
| From: | Galt J, Oneil R HOUSTON LIGHTING & POWER CO., LOONEY, NICHOLS, JOHNSON & HAYES, WHEATLEY & WOLLESON |
| To: | |
| References | |
| NUDOCS 7908290254 | |
| Download: ML19207B428 (9) | |
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UNITED STATES OF AMERICA NUCLEAR P.EGULATORY COMMISSION
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THE CITY OF SAN ANTONIO, THE CITY OF AUS*IN AND CENTRAL POWER AND LIGHT (SOUTH TEXAF PROJECT, UNITS NOS. 1 AND 2)
Docket Nos. 50-498A, 50-499A MOTION TO MODIFY SUBPOENA AND MOTION F_OR PROTECTIVE ORDER COMES NOW, Carl Stovci, C. H. Guernsey & Company, N.W.
58th & Portland Street, Oklahoma City, Oklahoma 73112, and through his attorneys moves pursuant to 10 CFR 2.720(f) L-at the subpoena issued by the Atomic Safety and Licensing Board for the taking of his deposition, and the production of certain documents, be modified,and further, moves that a pro-tective order be entered limiting the scope of the deposition and_ the documents subject to production, or in the alternative providing for the payment of expert wicness fees and expenses.
In support of this Motion, the following facts and arguments are stated and submitted.
1.;
Carl Stover is a Vice President and Director of C. H.
Gu,ernsey & Company, Engineering Consultants, located L. Oklahoma C.Lty, Oklahoma.
Mr. Stover is a recognized e' pert in electric i
rate and regulation matters, and has been retained by and appeared for numerous rural electric cooperatives and munici-853 556-7 9 08 5902 f9 6
. palities located throughout the Southwestern portion of the United States. '
2.
Mr. Stover has not been retained:by any party, including thNUnitedStatesDepartmentofJusticeortheUnitedStates Nuclear Regulatory Commission, to testify as 'n expert witness in Docket Nos. 50-49aA or 50-499A.
Furthermore, Mr. Stover has not engaged in any substantive discussions with any party, including thef United States Department of Justice or the United States Regulatory Commission, regarding the retention of his services for the purpose of preparing and submitting expert testimony in the above-referenced proceedings.
3.
It is Mr. Stover's understanding and belief that the deposition sought to be modified by this Motion was issued to the applicants on the basis that Mr. Stover had been listed as a potential witness to these proceedings by the United States Department of Justice and/or the United States Nuclear Regulatory Commission.
As stated above, Mr. Stover has not been retained by either of these parties to testify in the above-referenced proceedings, nor has he participated in any sub-stantiVe discussions with either of these parties relating to t
possible retention of his services.
4 c-On' April 12, 1979, Carl Stover received a letter from attorneys for the staff of the Nuclear Regulatory Commission advising him that he had been named as a potential factual witness for the Commission, and that his deposition might be 853 337
, noticed by other parties to the proceeding.
The letter also indicated that Mr. Stover's interests would be defended by government counsel at any deposition.
Pursuant to 10 CFR S 2.740a(i), Mr. Stover is entitled to legal ~ representation at a deposition.
Notwithstanding the April 12, 1979 letter, subsequent to the issuance of a subpoena for the taking of Mr. Stover's deposition, together with the direction for the production of documents, no government. counsel' met with Mr.
Stover to work with him regarding either the scope of his testimony as a potential factual witness or the nature of the documents required to be produced as a result of the schedule attached to the subpoena.
On Thursday, July 19, 1979, Mr. Stover was advised for the first time that he would not be represented by government counsel.
5.
On Friday, July 20, 1979 Mr. Stover contacted private counsel regarding his rights and obligations under the provisions of the subpoena.
At that time, Mr. Stover was under the impression that the scope of his deposition, and the request fa - the production of documents, was related to his testif> Ang for either the Department of Justice or the staff of~the' Nuclear Regulatory Commission.
Inasmuch as Mr. Stover IT had not entered into any substantive discussions or negotiations with either of those two parties relating his participation in_ the above-referenced proceedings, it was his opinion that h s deposition would be somewhat cursory, and very few documents would be involved.
853 338
. 6.
Mr. Stover's Washington counsel obtained a copy of the subpoena at approximately 5:00 p.m. on Friday, July 20, 1979.
Review of the document, together with the schedule relating to documents to be produced, led counsel to believe that the actual scope of the subpoena was far greater than envisioned by Mr. Stover.
It is the opinion of counsel that the subpoena encompasses a request for the production of documents which may properly be withheld on one or more bases of privilege.
Furthermore, with respect to some documents, Mr. Stover may not be authorized to waive any privilege which may attach.
Unauthorized disclosure of data or documents which properly may be withheld not only would severely damage his professional reputation, but could lead to civil liability.
7.
Notwithstanding the above objections, Mr. Stover does desire to cooperate with the Board and the parties to this proceeding in making available any factual data in his possession which is relevant.
Additionally, Mr. Stover is aware that representatives of a number of the parties have traveled, or are in transit to Oklahoma City for the purpose of participating in his deposition.
For these reasons, Mr. Stover desires to
' proceed with the deposition, and is not moving to have it lquashed.
However, the Board is being requested to modify the asubpoena and enter a protective order relating to the scope
'of the deposition and document production.
Specifically, 853 339 4
e i
the following relief is requested:
A.
Modification of the subpoena to provide for-a return of August 23, 1979 with respect to the Listing of withheld documents.
B.
A protective ordet limiting the scope of discovery to factual information known by Mr.
Stover, which is not privileged, and excluding inquiry into mental impressions or expert opinions.
C.
In the event that the Board declines to limit the scope of inquiry to exclude questions intended to elicit Mr. Stover's expert opinions, we request that expert witness fees be awarded, as negotiated by the parties or determined by the Board absent such negotiation.
8.-
Each of the requested modifications or protective orders are considered both necessary and appropriate.
Proposed Modifi-cation A is considered necessary to allow Mr. Stover the opportunity to have qualified personnel evaluate the materials in his possession to make a determination of whether they are properly discoverable, or subject to claims of privilege or withholding on other bases.
It is considered appropriate because MN) Stover was net aware of the scope of discovery until he had retained private counsel in this matter on Friday, July 20, 1,979, after he had learned on Thursday, July 19, 1979 that he would not be represented by government counsel.
853 340
. 9.
The protective order requested in sub-paragraph B also is considered necessary and appropriate.
It is necessary because Mr. Stover is an expert with broad knowledge in matters of electric power supply and. electrical engineering.
Given an absolutely free hand, the part'ies to this proceeding could interrogate Mr. Stover for days on end, thus seriously disrupting his abil'ity to meet his professional commitments.
The protective order is considered appropriate because the only ostensible reason for Mr. Stover being. issued the subpoena in the first place is the fact that he was listed as a possible fact witness by the United States Department of Justice and the U.S. Nuclear Regulatory Commission.
There is no logical or equitable basis to permit discovery beyond the factual information in Mr. Stover's possession which may be related to these proceedings.
Allowing a more widespread interrogation would be oppressive, constitute undue burden and impose unwarranted expense on Mr. Stover.
10.
The protective provision referred to in sub-paragraph C, above also is considered necessary and appropriate.
If the Board does permit inquiry of Mr. Stover in his capacity as an expert, it is only fair and equitable that he be compensated appropriately for his services.
The Licensing Board does have authority under
- 10. CFR 2. 74 0 (c) to require that a deposition be taken only upon payment of reasonable expert witness fe~es.
In_Public Service Company of Oklahoma, Associated Electric Cooperative, Inc.,
Western Farmers Electric Cooperative, Inc.,
(Black Fox, units 1 and 2), Docket Nos. STN50-556 and STN50-557, entered March 16, 1977, the Board ordered the payment of expert witness fees to 853 T4I
. an expert retained by intervenors to that proceeding, but who were subpoenaed for deposition by the applicants.
The Board decision stated:
,c In the instant action, the Board has concluded that the proper circumstances do exist for requiring the Applicants to pay reasonable expert witness fees in connection with the depositions.
The experts involved were secured by the Intervenors because of their expertise and their opinions will no doubt be explored at the deposition.
They will be acting ia their professional capacity and the Board considers it equitable that they receive reasonable compensation for this.
2/
The Board, therefore, is hereby ordering the Applicants to pay reasonable fees to these witnesses for the time spent in responding to this discovery."
2/
Although the rationale is not identical, recognition of this obligation to pay the expert a reasonable fee for the time spent in deposition is set out in the opinion of the District Court in Herpes v. ITT Corp.,
65 FRD 528 (D.C. Conn. 1975).
To the extent that the inquiry made of Mr. Stover by the Applicants is limited to his knowledge of facts, and does not seek to delve into his expert opinion or expert work product, expert witness fees are not sought.
If, on.the other hand, Mr. Stover is to be deposed as an expert, and inquiry is directed t wards expert opinions and his work product as an expert, an ven move compelling case is presented here than was extant in the Black Fox proceeding.
As stated above, Mr. Stover has not b.een retained by any party to participate in these proceedings.
He is an independent consultant, who is compensated at rates GT
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. significantly greater than thirty dollars a day for the benefit of hi:
- pert advice and opinion.
Where, as here, the only reason tir. Stover has been subpcenaed is because several parties listed him as a potential ~ fact witness, with no assurance that he will inde'ed testify at all, it would be a perversion of fundamental fairness and the rules of discovery to permit the unfettered, uncompensated interrogation of Mr. Stover.
Wherefore, for the foregoing reasons the Atomic Safety and Licensing Board is requested to modify the subpoena issued to Carl 5;,ver, and enter protective orders as requested herein.
Respectfully submitted, Robert A. O'Neil Wheatley & Wollesen 1112 Watergate Office Building 2600 Virginia Avenue, N.W.
Washington, D C.
20037 (202)337-5543 Jay M.
Galt Looney, Nichols, Johnson & Hayes 300 Lawyers Building 219 Couch Drive Oklahoma city, Cklahoma 3
Attorneys for Carl N.
Stover
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.eAr 853 343
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CERTIFICATE OF SERVICE I, Robert A. O'Neil certify that I have caused the foregoing document to be mailed by First Class mail to all parties of record to this proceeding, and further that I have caused a copy to be telefaxed to Oklahoma City, Oklahoma for distribution by hand to all parties attending the deposition of Carl N.
S tover.
Robert A.
O'Neil 6
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