ML19209C466
| ML19209C466 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 09/10/1979 |
| From: | Bouknight J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO. |
| To: | |
| References | |
| NUDOCS 7910150609 | |
| Download: ML19209C466 (14) | |
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j UNITED STATES OF AMERICA c
NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD-3 w,
7 In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY,
)
DocketNos.f50-498A et al.
{
A (South Texas Project, Units 1
)
and 2)
)
)
)
TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445A COMPANY, et al.
)
50-446A
)
(Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
MOTION OF HOUSTON LIGHTING & POWER COMPANY TO COMPEL PRODUCTION BY THE DEPARTMENT OF JUSTICE OF CERTAIN DRAFTS OF TESTIMONY PREPARED BY WILLIAM E. SCOTT I.
Background
Pursuant to 10 CFR S2.740 (f), Houston Lighting & Power Company (" Houston") respectfully moves the Board for an order compelling the Department of Justice
(" Department") to produce certain drafts of testimony prepared by the Department's engineering expert witness, William E.
Scott.
On February 9, 1979, Houston served on the Department Houston's Second Set of Interrogatories and Requests for Pro-duction of Documents to the Antitrust Division, U.S. Department of Justice.
Discovery Request 2 read as follows:
2.
(a) Identify each expert witness who the Divi-sion expects to call in this proceeding.
(b) State the qualifications and credentials of each such expert witness.
I143 301 l
I r
f 0150 tou, g 91 j,
. (c) Provide a summary of the testimony which each such expert witness is expected to offer.
(d) State the basis for each conclusion or opinion each such expert witness expects to present or draw in his/her testimony.
(e) Identify all documents prepared by, for, or under the supervision of each such expert witness, or reviewed or relied upon in any way by such expert in the performance of his/
her duties, formulation of his/her conclusions or opinions, or preparation of his/her testimony, including particularly work papers, status reports, preliminary outlines and memoranda, and communications between such expert in the Division, any party to the proceeding, or any person with knowledge in any way relied upon by such expert, and provide copies of any such document not already in the possession of Houston.
(f) Identify each such party to the proceeding and any person with knowled'ge in any way relied upon by such expert with whom such expert has communicated.
On February 22, 1979, the Department of Jusdce filed a motion for an extension of time wherein it argued that production of the information and documents sought by Houston was premature.
Houston filed a response opposing an extension on February 27, 1979.
The Board heard oral argument on this issue at the March 20, 1979, Prehearing Conference.
The Department's motion for an extension of time was granted to April 3, 1979, (Tr. 148-60 and Prehearing Conference Order of April 4, 1979), and the Department was instructed to respond to Houston's discovery request by that time.
The Board also ruled that the Department need only respond on the basis of what the Department knew at the time that they issued the advice letter initiating this proceeding.
This limitation on discovery seems to have been predicated on the Board's understanding, after hearing the argument of the 1143 302
. Department's counsel, that the Department had not yet formulated
~
even a partial witness list.
On April 3, 1979, the Department, in compliance with the Board's order, filed a response to the discovery request.
William E. Scott was identified as one of the two expert witnesses whom the Department expects to call to testify during the hearing.
The Department refused to produce any documents responsive to Houston's discovery request 2.(e) calling for (inter alia) the production of documents prepared by, for, or under the supervision of each expert witness.
The Department cited the Board's Prehearing Conference Order of March 20, 1979, for the proposition that the Department was not required to produce any documents responsive to discovery request 2.(e) at that time.
As of June 25, 1979, the Department still had not fur-nished any documents responsive to discovery request 2. (e).
Accordingly, in preparation for the deposition of Mr. Scott, counsel for Houston requested by lette. that the Departiment provide any supplementary documents or information responsive to Houston's discovery request.
On July 11, 1979, the Department furnished to Houston copies of Mr. Scott's published articles and papers which were in the possession of the Department.
A list of these documents is contained in the First Supplemental Response of the Department dated July 13, 1979.
Additional dccuments were furnished to Houston on July 17, 1979, in compliance with a subpoena duces tecum addressed to Mr. Scott requesting certain documents in his possession.
As for other documents, the Department stated in its supplemental response:
F143 303
. To the extent that interrogatory 2(e) seeks additional information, the Department objects on the ground that such a request is beyond the scope and purpose of Rule 26 (b) (4).
The deposition of Mr. Scott was held on July 17-18, 1979.
During the course of his deposition, Mr. Scott revealed that he has been serving as an expert witness for the Department since January of 1979, 1!
and that he has already prepared and sent to the Department's counsel several drafts of his expected testimony in this proceeding. 2/
Houston requested on the record at the deposition that the Department produce copies of Mr. Scott's draft testimony, but the Department refused. 3/
The drafts of Mr. Scott's testimony are responsive to discovery request 2.(e).
As a result of the Department's refusal to voluntarily produce such documents, Houston resoectfully moves the Board for an order compelling production.
1/
Deposition of William E.
Scott at 178-82.
2/
Id. at 18-19.
Indeed, Mr. Scott revealed that he transmitted a complete first draft of his testimony to the Department's attorneys in March of 1979.
In spite of this fact, the Department refused to respond to discvoery request 2.(e) in April.
The Department's refusal was predicated on the Board's order at the March 20, 1979, Prehearing Conference.
The basis for that order was the Board's understanding that "they [the Department] don't have a partial witness list now." (Tr. 159).
i 3/
Id. at 19-32, 173-75 and 254-53.
1143 304
. II.
The Department Should Be Compelled to Produce the Draft Testimony of Expert Witness William E.
Scott A.
The Board's Previous. Order Disposes of the Department's Objections The Board held at the June 1, 1979 Prehearing Conference that relevant documents prepared or reviewed by testifying experts are discoverable and must be produced upon the request of another party. A[
(Tr. 408-15).
It is far too late for the Department to argue that documents prepared or reviewed by experts who are expected to testify in this proceeding are immune from discovery.
As Chairman Miller has pointed out, discovery of such communications is important to enable other parties and the Board itself to evaluate the credibility of the witness.
(Tr. 408 and 412).
Further, such discovery assists the inquiry on cross-examination into the bases for an expert's opinion.
As also discussed at the Prehearing gonference, an excert's opinion may be qualified by the basis of that opinion, and the other parties have a legitimate interest in learning on cross-examination how the expert arrived at his ultimate conclusion. (Tr. 408 and 412, remarks of Chairman Miller).
4/
The Board's Order was based upon a thorough analysis of the relevant case law.
Both Houston and the Nuclear Regulatory Commission's Staff submitted extensive briefs relating to the production of documents generated by expert witnesses.
See Motion of Houston to Compel the NRC Staff to Provide Fuller Responses to Houston's Second Set of Interrogatories and Requests For Production of Documents (March 26, 1979), and the Staff's Answer (April 30, 1979).
The objection which the Department now assert _ under Fed.
R.
Civ.
P.
26 (b) (4) simply seeks to reargue the Board's earlier ruling.
Il43 305
~?
. The distinction that the Department apparently seeks to draw between the relevance of draft testimony and the final version 5!
As noted by the Board, of testimony is without substance.
drafts may be uniquely valuable resources offering insight into the formulation of a witness' testimony which are not available from examining the final product alone.
MR. LESSY:
I have seen a situation where all working papers are exchanged X times prior to cross-examination, but not early in the beginning, when a man first sits down to work.
He might change his opinion.
Suppose the man changes his opinion eight times, okay?
MR. BOUKNIGHT:
That's exactly what we want.
CHAIRMAN MILLER:
It would affect his credibility when he got up here for the 9th time.
It might just affect it very substantially.
And that is really
~
one of the things that people are trying to look at, and that the Board would do anyway, obviously.
5/
Houston's discovery request 2. (e) called for the production of all documents prepared by or under the supervision of each expert witness, including work papers, preliminary outlines and memoranda, and communications between the expert and the Department.
Drafts prepared by the Department's engineering expert in preparation for his testimony in this proceeding, copies of which were sent to counsel for the Department, are clearly responsive to that discovery request.
The only objection to discovery regnest 2. (e) raised by the Department in its First Supplemental Response was based on Rule 26 (b) (4).
Not until the deposition of Mr. Scott did the Department argue that Houston's discovery request calls for the production of irrelevant documents.
Deposition of William C.
Scott at 22-23, 173-74 and 184.
Even if Mr. Scott's draft testimony was not relevant, which it clearly is, the Department has by its silence waived its right to object to Houston's discovery request.
I143 506 Now, it may be that he is changing for good and sufficient reasons eight times, and he will tell us about it.
Again, there may be other factors, and we will sort of want to know about them.
His testimony is subject to evaluation.
And what you are suggesting is certainly one of the things that one looks for in any witness.
(Tr. 414-15).
Thus, the fact that testimony is in draft form does not render the testimony any less relevant or discoverable.
The Board's order requiring the production of documents generated by a testifying expert in preparation for hearing recognizes only one exception.
The Board has ruled that documents prepared by counsel which contain nothing but the mental product of counsel are not discoverable.
(Tr. 423).
Obviously, a witness' own drafts of testimony do not fall into this exception.
The Department has grounded its refusal to produce Mr. Scott's drafts upon the decision in Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-75-25, 1 NRC 513 (1975),
which denied a motion to compel the discovery of certain draft question and answer testimony.
The Seabrook Board reasoned that the draft testimony which the testifying expert had prepared constituted trial preparation material of counsel.
However, the Board in this proceeding has already determined that documents prepared by a testifying expert in preparation for trial are subject to discovery.
The basis upon which the Seabrook Board reached a different decision is unclear.
The issue of work-b I143 307 product protection was not extensively briefed, 5! and the Board's order disposed of the issue in one paragraph.
The basis for the Board's decision in this proceeding is quite clear, however.
This is a comolex antitrust proceed-ing.
The testimony of expert witnesses will be of the utmost importance in resolving the contested factual issues.
The Board has rightly determined that documents generated by a testifying expert will assist in evaluating the credibility of the expert and the bases of his opinions.
Under these circum-stances, the Board's decision to permit discovery of documents generated by testifying experts is most logical.
The draft testimony of Mr. Scott is not only within the letter of the Board's prior ruling, it is at the heart of that ruling.
Unlike the draft testimony in Seabrook, which was pre-pared in conjunction with counsel, -!
Scott indicated at his Mr.
deposition that his draft testimony was written without the direct assistance of counsel. E These drafts reflect.the
-6/
See Motion to Compel Discovery, Nos. 50-443 and 50-444 (Atomic Safety and Licensing Board, February 18, 1975), and Answer to Motion of New England Coalition on Nuclear Pollution to Compel Discovery, Nos. 50-443 and 50-444 (Atomic Safety and Licensing Board, February 28, 1975).
7/
Public Service Company of New IIampshire (Seabrook Station, Units 1 and 2), LBP-75-28, 1 NRC 513, 514 (1975).
~8/
Answer to Motion of New England Coalition on Nuclear Pollution to Compel Discovery, Nos. 50-443 and 50-444 (Atomic Safety and Licensing Board, February 28, 1975).
9/
Deposition of William E.
Scott at 183.
1145 508 independent thoughts and analyses of a testifying expert, not the thoughts and analyses of counsel, and the Board has clearly indicated that such work performed by testifying experts may not 1SI be kept confidential. (Tr. 399-415).
Finally, Houston submits that it would be unwise for the Board to modify its prior ruling to carve out a special exception for testimony drafts.
Draft testimony should not be accorded any greater immunity from discovery than other draft documents prepared by a testifying expert.
To distinguish between draft reports, analyses and summaries on one hand, and draft testimony on the other, is to make a distinction without a difference.
Regardless of the term chosen, what is being ri ;.crred to is the expert witness' i
analysis of a given fact situation -- in other words, that which he may be asked to. test!.ty about at the hearing.
Referring to a document as testimony, 1 report or a summary does not alter the nature of the docurent.
To grant some sort of privileged status to documents labeled " draft testimony" rather than " draft report" or
" draft analysis" would encourage parties to categorize and/or label all documents dealing with an expert's potential testimony as
" draft testimony" in a deliberate effort to immunize them from discovery.
Clearly such a result would be unacceptable and would The creation poseasigni{icantthreattothediscoveryprocess.
of such a problem can be avoided by simple adnerence to the Board's 10/
In any event, the only documents which the Board allowed to be protected in its earlier order were those which reflected nothing but the thought processes of counsel. (Tr. 423)
Testimony drafts prepared by an expert witness in consultation with counsel clearly would not be protected under this ruling.
I143 309 prior ruling requiring the production of all documents prepared by a testifying expert witness.
B.
No Claim of Privilege Should be Entertained at This Stage The Department has clearly waived any privilege specifically applicable to these drafts of testimony.
Despite Houston's instructions, the Department failed to list and describe the drafts as privileged.
The Department also failed to request a protective order against either the general instruction requiring such listing or the specific document production request at issue.
10 CFR SS2.740(c) and (f).
Houston does not intend to stand on formality, however.
More than a question of technical compliance is involved here.
The Department not only did act produce Mr. Scott's draft testimony, it did not even disclose its existence.
Had the Department followed the procedures specified for claiming privilege and/or filed a this request for a protactive order against the discovery request, matter would have come before the Board many months ago for orderly resolutibn, just as the similar argument made by the Nuclear Regulatory Commission's Staff was heard and resolved at the June 1 Prehearing Conference.
The existence of these drafts came to light only through Mr. Scott's testimony in the course of his deposition - a deposition that the Department's counsel requested be postponed on the ground of prematurity.
Where failure to' comply with instructions in a discovery request or with the Commission's regulations results in, or threatens, substantive b) bk0
. prejudice to the rights of the discovering party, the rules should be enforced strictly.
III.
Conclusion Houston has now waited more than seven months to obtain the production of all documents responsive to discovery request
- 2. (e).
There is no reason to delay production of these documents any longer.
For all the reasons stated herein, Houston respectfully moves this Board for an order compelling the Department of Justice to produce the draft testimony of its engineering exoert witness William E. Scott.
Respectfully submitted, s
g/A. Bouknight,fJr.
%ttorney for Eduston Lighting
& Power Company BAKER & BOTTS 3000 One Shell Plaza, Houston, Texas 77002 LOWENSTEIM, NEWMAN, REIS, AXELRAD
& TOLL 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 OF COUNSEL BAKER & BOTTS 1701 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 DATED:
September 10, 1979 l143 311
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY,AND LICENSING BOARD In the Matter of
)
HOUSTON LIGHTING & POWER COMPANY, Docket Nos. 50-498A 50-499A et al.
)
(South Texas Project, Units 1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445A COMPANY, et al.
)
50-446A
)
(Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the foregoing:
Motion of Houston Lighting & Power Company to Compel Production by the Department of Justice of Certain Drafts of Testimony Prepared by William E. Scott were served upon the following persons, by hand *, or by deposit in
~
the United States Mail, first class postage prepaid, this 10th day of September, 1979.
Marshall E.
Miller, Esquire Mr. Jerome D.
Saltzman U.S. Nuclear Regulatory Commission Chief, Antitrust and Indemnity Washington, D.C.
20555 Group U.S. Nuclear Regulatory Commission Michael L.
Glaser, Esquire Washington, D.C.
20555 1150 17th Street, N.W.
Washington, D.C.
20036 J. Irion Worsham, Esquire Merlyn D. Sampels, Esquire Sheldon J. Wolfe, Esquire Spencer C.
Relyea, Esquire U.S. Nuclear Regulatory Commission Worsham, Forsyth & Sampels Washington, D.C.
20555 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Atomic Safety and Licensing Appeal Board Panel Jon C. Wood, Esquire U.S. Nuclear Regulatory Commission W. Roger Wilson, Esquire Washington, D.C.
20555 Matthews, Nowlin, Macfarlane
& Barrett Chase R. Stephens, Supervisor (20) 1500 Alamo National Building Docketing and Service Branch San Antonio, Texas 78205 U.S. Nuclear Regulatory Commission
- Frederic D. Chanania Washington, D.C.
20555 Office of the Executive Legal Direct U.S. Nuclear Regulatory Commission Washington, D.C.
20555 kb bl}
. Charles G. Thrash, Jr., Esq.
Michael I. Miller, Esq.
E.W. Barnett, Esq.
Theodore F. Weiss, Esq.
David M.
Stahl, Esq.
Martha E. Biggs, Esq.
J. Gregory Copeland, Esq.
Baker & Botts James A. Carney, Esq.
3000 One Shell Pla:a Isham, Lincoln & Beale Houston, Texas 77002 One First National Plaza Chicago, Illinois 60603 R. Gordon Gooch, Esq.
Steven R.
Hunsicker, EJg.
Don R.
Butler, Esq.
Baker & Botts Sneed, Vine, Wilkerson, Selman 1701 Pennsylvania Avenue
& Perry Washington, D.C.
20006 P.O. Box 1409 Austin, Texas 78767 Roy P. Lessy, Jr., Esq.
Michael B.
Blume, Esq.
Jerry L. Harris, Esq.
U.S. Nuclear Regulatory Richard C. Balough, Esq.
Commission City of Austin Washington, D.C.
20555 P.O. Box 1088 Austin, Texas 78767 Roff Hardy Chairman and Chief Executive Joseph B. Knotts, Jr., Esq.
Officer Nicholas S. Reynolds, Esq.
Central Power and Light Co.
Debevoise & Liberman P.O. Box 2121 1200 17th Street, N.W.
Corpus Christi, Texas 78403 Washington, D.C.
20036 G.K. Spruce, General Manager Don H. Davidson City Public Service Board City Manager P.O. Box 1771 City of Austin San Antonio, Texas 78203 P.O. Box 1098 Austin, Texas 78767 Mr. Perry G. Brittain Presid. ant Jay Galt, Esq.
Texas Utilities General Co.
Looney, Nichols, Johnson & Hays 2001 Bryn.n Tower 219 Couch Drive Dallas, Texas 75201 Oklahoma City, Oklahoma 73102 R.L. Hancock, Director Knoland J. Plucknett City of Austin Electric Utility Executive Director P.O. Box 1086 Committee on Power for the Austin, Texas 78767 Southwest, Inc.
5541 East Skelly Drive G.W. Oprea, Jr.
Tulsa, Oklahoma 74135 Executive Vice President Houston Lighting & Pcwer Co.
John W.
Davidson, Esq.
P.O. Box 1700 Sawcell, Goode, Davidson & Tioilo Houston, Texas 77001 1100 San Antonio Savings Building San Antonio, Texas 78205 Richard D. Cudahy, Esq.
Joseph Gallo, Esq.
Douglas F. John, Esq.
Robert H. Loeffler, Esq.
Akin, Gump, Hauer & Feld Isham, Lincoln & Beale 1333 New Hampshire Avenue, N.W.
1050 17th Street, N.N.
Suite 400 Suite 701,
Washington, D.C.
20036 Washington, D.C.
20036 1143 313
- Robert M. Rader, Esq.
Ronald Clark, Esq.
Frederick H.
Parmater, Esq.
Conner, Moore & Corber 1747 Dennsylvania Avenue, N.W.
Susan B. Cyphert, Esq.
Energy Section Antitrust Division Washington, D.C.
20006 U.S. Department of Justice 414 lith Street, N.W.
- 9412 W.N. Woolsey, Esq.
Washington, D.C.
20004 Dyer and Redford 1030 Petroleum Morgan Hunter, Esq.
Corpus Christi, Texas 78474 Bill D. St. Clair, Esq.
McGinnis, Lockridge & Kilgore Donald M. Clements, Esq.
Gulf States Utilities Company Fifth Floor Texas State Bank Building P.O. Box 2951 Beaumont, Texas 77704 900 Congress Avenue Austin, Texas 78701 W.S.
Robson General Manager South Texas Electric Cooperative, Inc.
Route 6, Building 102 Victoria Regional Airport Victoria, Texas 77901 Robert C. McDiarmid, Esq.
Robert A. Jablon, Esq.
Marc R. Poirier, Esq.
Spiegel & McDiarmid 2600 Virginia Ave,., N.W.
Washington, D.C.
20036
]
Kevin B. Pratt
/[
h Texas Attornev General's Office
'f v
J.A.
Bouk.lght, Jr.
P.O. Box 12548 Austin, Texas 78711 William H.
Burchette, Esq.
Frederick H.
Ritts, Esq.
Law Offices of Northcutt Ely Watergate 600 Building Washington, D.C.
20037 Tom W. Gregg, Esq.
P.O. Box Drawer 1032 San Angelo, Texas 76902 Leland F.
Leatherman, Esq.
McMath, Leatherman & Woods, P.A.
711 West Third Street Little Rock, Arkansas 72201 Paul W.
Eaton, Jr., Esq.
l}dj j}4 Hinkle, Cox, Eaton, Coffield &
Hensley 600 Henkle Building P.O. Bo:c 10 Roswell, New Mexico 88201
.