ML19254F568
| ML19254F568 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, South Texas  |
| Issue date: | 10/25/1979 |
| From: | Mark Miller Atomic Safety and Licensing Board Panel |
| To: | JUSTICE, DEPT. OF |
| References | |
| NUDOCS 7911120051 | |
| Download: ML19254F568 (3) | |
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MH. EAR REGLLL"UIE COMISSICN 0d g
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HE ATCMIC SAFER? KD LICESSrU ECARD C
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Marshall E. Miller, Esquire, Chaiam g.V Shel&n J. Wolfe, Esqdre, M.: er Michael L. Glaser, Escuire, Va er i14,s In the Matter of
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- ?mmi LICE AID PCER CCTXE, et al.
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Decket '. 50-498A (South Texas Project,
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50-490 Units 1 and 2)
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IEXAS L'rILT.S GESERA Z E CCMPR E, et al.
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Decket Ncs. 50-445A (Cccanche Peak Steam Electric Statien,
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50-M Units 1 and 2)
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CEER REGARDEU EOCCMENIS WInfrILD CNDER CIAIMS 7 PRr/TTm:' BY IOUSIm LIGiITEU & PCER CO'PXE (October 25, 1979)
The Departmne of Justice (Justice) filed a =cticn en July 11, 1979, to eccpel Housten Lighting and Pcwer Cccparrf (FISP) to produce certain doc =nents in withheld fran discovery under cMm of privilege or assertions of i::r: unity frem discovery. The centested dccu::ents allegedly ccncern:
(1) can:nications between h24P ecplcyees, or between a ncntestifying curside censultant and 12LP a:plcyees, relating to the *mrk of ncntestifyira ccraultants perfor:ned in anticipaticn of litigaticn at the directicn of counsel, and (2) ccnt:enications which 124? attorneys or ncntestifying ererts provided to a corporate officer who was both directly respcnsible for the directicn of this litigatien, and -ho has also been designated as a testi- % g expert witness in this proceeding.
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I.
The first group of disputed doc = ants censists of 2cse n=icered 197, 211, 234, 240, 243, 258, 260, 265, 272, 273 and 278, d ich are described in Appendix B of Justice's cocion to ca::cel their producticn. Justice argues that the "wrk product" i::runity fran discoverf is a limited exception to the broad secpe of discoverf, and that it focuses en caterials and informaticn prepared by an attorney, or by agents acting at his request and directicn. *4e essentially agree wid that positicn and cbserve dat the ncntesti9 ing cxpert exceptien f
- ich we stated at a prehearing ccnference1/ is a sticategorf of the work product i::runief fran produc*%.
Ecuver, that does not c:ake these Appendix 3 da mes discoverable.
HEP's ccensel states explicitly that these docucmts "were generated in ccnjunc-tien with a sed peffor=ed by Ecusten's contestifyir.g expert, Mr. Stagg. This
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study was directed by ccunsel in preparatien for litigatien...
All of the documents pertain to the st if being conducted by the ncntestifying expert Mr. S tagg.... "
(Answer of F2SP In Opposition to Justice's Mcticn, pp. 3-4)
In the absence of arrf evidence to the ecctrarf, we =ust assume that counsel If the Stagg se d, by a ncntestifying states the facts accurately to the Beard.
f e w., was directed by E24P counsel in preparatien for litigaticn, it would be within the work product rule.Gm nications between or accng F252 a:picyees ft=nishing data, reviewing analyses or the like in ecnnecticn with the Stagg stuiy wculd likewise be Emme frem disecvery. The met:.cn to p duce the Appendix 3 doctronts is dmied.
E rehearing Ccnference cf March 20, 1979, Tr. 133-85.
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. II.
The second area of dispute relates to documents written to or frcm a testi-fying ex::ert 'oto is also a corporata officer of IEEE directly respcnsible for the directicn of the instant litigatien. The Beard ruled in its Order Degardi:.g Discover Motions, dated May 7,1979, that doctrents which a corporate officer f
has re'tiewed in his capacitf as an officer directing litigaticn, ohich he dces nct intend to rely upcn in his testircny, are not producible. Jt:stice 1as -A r.o showing that the dcctrants in cuestien (Appendix C) have been er will be relied t: pen by Mr. D. E. Si:rens in fc=ulating his testi cny as a witness.
Apparently, Mr. Simmns' deposition and trial testimen, in a U. S. District Court antitrust trial are avn41nble to the parties, but there is no identifica-tien of his reliance t=cn any cf the dec=ents in questicn in fort:ing his expert cpinicts. 5 motien to eccpel production of doctruits is denied.
It is so crdered.
FOR THE ATUEC SAFEIY ED LICESSUG 3CMtD 0,h., h D E 1 h b k n Marsi:all E. Miller, Cbnim Dated at Bethesda, Maryland this 25th iry of Octcber 1979.
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