ML19256E562
| ML19256E562 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, South Texas  |
| Issue date: | 10/23/1979 |
| From: | Mark Miller Atomic Safety and Licensing Board Panel |
| To: | JUSTICE, DEPT. OF |
| References | |
| NUDOCS 7911080037 | |
| Download: ML19256E562 (3) | |
Text
NRC PUBLIC DOCUMENT ROOM
~
4 Wuw STAES OF AbERICA NCCEAR PEGLT.ATORY COMSSICN 6
a 1 \\
0
.p Y
2 TE AIU4IC SAFEIY AND LICENSEE BOARD h 47 Marshall E. Miller, Esquire, Cbni m k
of J
Sheldcn J. Wolfe, Esquire, Member Michael L. Glaser, Esquire, Meier et In the Matter of
)
)
FIISIG LIGHrDE AND POWER CCNPANY, et al.
)
Docket Mos. 50498A
)
50-499A (Scuch Texas Project,
)
Units 1 and 2)
)
)
TEXAS UTILITIES GENEPA"ING COMPANY
)
)
Decket Nos. 5045A (C whe Peak Stes:n Electric Station,
)
50446A Units 1 and 2)
)
CRDER GRANTHrr PRODUCIICN OF DFAFI TESTDmY CF E*GERT WIDIESS (October 23, 1979)
Ecusten 74ghr45 and Pcwer Ca::pany (h7.bP) filed a actica en Septeier 10, 1979, for an order to cagel the Department of Justice (Justice) to produce certain drafts of testineny prepared by the latter's erert engineering witness, W4'14nm E. Scott. The Depar.-t cpposed this noticn in its answer filed Septecber 26, 1979.
At his depcsitica taken July 17-18, Mr. Scott testified that he has been serving as an ercert witness for Justice since Janua:f 1979 (Depo. Tr.178-82).
He has prepared and sent to counsel for Justice several drafts of his expected testi::rny in this proceeding (Id., at 18-19). Justice refused, upcn rcquest, to produce copies of this draft testicccy and the instant meticn folicwed such.
ref;. sal (Id., 19-32, 173-75, 253-54).
1294 086 7D11080C37
. We hold that the draft testiccq prepared by the expert witness is producible under Discovo7 Request No. 2(e) of ESP's second set of interrogatories, dated Februa f 9, 1979. This subject of discovery concerning expert witnesses and the ewlutica as well as the bases for their cpinion testiseny, was discussed fairly extensively by the Board at the June 1,1979 prehearim. ccnference (Tr. 407-26).
We adhere to the views dere expressed.
Varicus steps in the analyses and thinking prccesses of expert witnesses in a d ving ac their conclusions are discoverable, as bearing uncn the bases for their opinicns as well as their credibility as witnesses. The reasons for changes or refirmvmts in expert cpiniens cay be ven illu=inating to the Board in evaluating cpinica evidence, especially where dare are ccnflicts in the opinicns of preferred experts. Counsel :mst rmw+er that experts are alnest unique in being per::itted to testify as to trai epiniens, as disting' Mad frcm fact testi::eny. In return, all factors which cculd canditicn er affect these cpinicns are prcperly the subject of cross-Wmeien, and hence discovery in abrance of trial.
Testifying expert witnesses are not i mi-ad frca discovery by the fo: n of their studies or proposed testd::rny. Neither are the witnesses iwi7ed frca disecvery because of the role played by counsel in such analyses. If an expert is going to testify, all factors which could reascrably go to bias as well as cco:petence are discoverable. The causes of pctential bias of a wierass are not miehed because they emanate fran or inw1ve ccunsel; in fact, the ccnverse may be true. The objectivity of expert opinicns ::ight be subject to questien if witnesses are indeed expected by ccunsel to be "attarcting to recer;cile 1294 087
. [new] infmtica with his earide cenclusicas,"1/ or to " defend and explain conclusiens sich even den reccrded he =ay not have endorsed."2/
A witness is not expected to be so supple concerning prospective testinony under oath, whether written or oral. If our ruling does indeed have a "cb41145 effect" upon possibly cacplaisant witnesses, that is all to tra good. For the information of all counsel, this rule will apply to cral censultations with counsel by testifyirg witnesses, as well as writtea em,mications.3/
Justice is directed to prcduce the draft testirony of its testifyir4 experts, including its expert engineering witness, Willia:n E. Scott.
It is so crdered.
FOR THE AMC SAFELY AND LICENSDU EGARD M / la4dtae9 E,.s '<2n Marshall E. Miller, ch34
'n Dated at Bethesda, Maryland this 23rd day of October 1979.
b/ nswer of the Decartmmt of Justice In Opposition to the Moticn of hT.&P to A
Canoel Production by the Depart:nnt of Justice of Certain Drafts of Testi:cny Prepared by Willian E. Scott, p.12.
/Id., at 13.
9 3/
- Id., at 15. In Alabama Power Ccepany (Joseph M. Farley Plant, Units 1 and 2),
IFcket Nos. 50-348A, 50-364A, a transcript of a tape reccrding of strategy conferences involving, in part, a testifying expert witness and counsel for Justice was admitted into evh e, over a s4~4' e objecticn by Justice.
1294 088
_