ML19257B847

Request for Conference Call Re DOJ Refusal to Reveal Basic Antitrust Contentions Until After Discovery.Due Process Entitles Applicant to Notice of Opportunity to Take Discovery

ML19257B847
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	01/03/1980
From:	BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19257B848	List: ML19257B847 ML19257B852
References
NUDOCS 8001210064
Download: ML19257B847 (3)

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UNITED STATES OF AMERICA - b NU" LEAR REGULATORY COMMISSION I -mil 3l7;g 3 Q'

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD g O!! ice 00:la  ;,ycithe

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HOUSTON LIGHTING & POWER COMPANY, ) Docket Nos. 50-498A et al. ) 50-499A

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(South Texas Project, Units 1 )

and 2) )

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TEXAS UTILITIES GENERATING ) Docket Nos. 50-445A COMPANY, et al. ) 50-446A

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(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

REQUEST OF HOUSTON LIGHTING & POWER COMPANY FOR CONFERENCE CALL CONCERNING THE DEPARTMENT'S POSITION THAT IT DOES NOT HAVE TO REVEAL ITS BASIC ANTITRUST CONTENTIONS UNTIL AFTER THE CLCSE OF DISCOVERY Houston Lighting & Power Company [" Houston") hereby requests that the Licensing Board hold a conference call, at its convenience, to settle the question of whether the Department of Justice may refuse to reveal until af ter the close of discovery the basic anti-trust contentions against which it intends to make Houston Lighting

& Power Company defend.

Houston moved on November 30, 1979 to compel answers to its first interrogatories filed over a year and a half ago. The Department of Justice failed timely to respond, then filed an ambiguous Motion for an Extension of Time (December 14, 1979) to which Houston replied (December 20, 1979). The Department then filed a " Response to Response of Houston Lighting & Power Company to Department of Justice Motion for Extension of Time" 1773 109 I

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dated December 26, 1979. 1! With this document the Department has finally made its position clear. The Department now states that it does not believe it is required to disclose its contentions as to relevant market, competition, restraint of trade, i.e., its fundamental antitrust allegations, until discovery has concluded. (Response at 1-2.)

Our response is simple: Houston will be hampered in establishing its defenses to the Department's contentions unless it is told what those contentions are. Houston is plainly entitled, as a matter of elementary due process, to full notice of and the opportunity to take discovery regarding the Department's relevant market, restraint of competition, and other antitrust contentions. The Department's position is patently one-sided and prejudicial. 2/

The Department, in its pleadings, has sought to justify its position largely on the grounds that Houston has had the opportunity to take a preliminary deposition of the Department's expert witness, Dr. Gordon Taylor. To permit the Board to view the merits of this contention for itself, we have submitted here-with courtesy copies of that deposition for each member of the Board. We respectfully invite the Board's attention to Dr.

Taylor's responses on pages 97-98, 114, 140-41, 168-69, 302, 376-78, 402, and to counsel for the Department's objections on pages 134, 233, 251, 254, 259, 370-72, 379 for several typical illustrations of the gist of that deposition.

177F3 110

-1/ The Department's reply pleading is not authorized in the Commission's Rules 10 CFR S2.730 (c) .

! The Department's insistence on withholding the basic contentions of its case until discovery is past and trial is imminent, as far as we are aware, is completely unheard of in administrative jurisprudence.

d .

More fundamentally, the Department's emphasis on Dr. Taylor's continuing efforts is misplaced. The Department should not be permitted to pursue an antitrust case, as it has here for some two years, without revealing the specific nature of its theory of viola-tion of or inconsistency with the antitrust laws. That theory may be refined, or even changed, as the result of discovery and additional economic analysis (in which event the defending party may be entitled to additional opportunities for discovery). How-ever, the proposition that a prosecuting party may develop its initial antitrust theory after discovery is closed is inconsistent with the policies underlying the discovery process and denies due process to the defending party.

Because the matter obviously is important, and in order to avoid a further exchange of pleadings, we suggest a conference call to resolve the question.

Dated: January 3, 1980 Respectfully submitted,

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htbrnehkorHYustonLighting

& Power Company Baker & Botts 3000 One Shell Plaza Houston, Texas 77002 Lowenstein, Newman, Reis Axelrad & Toll 1025 Connecticut Avenue, N.W.

Washington, D. C. 20036 1773 111