ML19260E065
| ML19260E065 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 02/05/1980 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002130263 | |
| Download: ML19260E065 (5) | |
Text
02/05/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0911SSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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HOUSTON LIGHTING AND POWER COMPANY,
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50-499
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(South Texas Project, Units 1 and 2)
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NRC STAFF RESPONSE TO CCANP MOTIONS TO COMPEL APPLICANTS (1) TO PROVIDE DISCOVERY ON SATURDAY AND (2) TO BEAR EXPENSES OF COPYING PURSUANT TO DISCOVERY On January 16, 1980 Intervenor Citizens Concerned About Nuclear Power (CCANP) filed motions requesting this Board (1) to order the Applicants to allow discovery on Saturdays and (2) to order Applicants to bear the expenses of the copying of documents requested by CCANP during discovery. Often discovery mot. ions between an applicant and an intervenor in NRC proceedings involve only matters that pertain to the rights and duties of those two parties.
In suc.n circu,Mtances, it usually is not necessary for the NRC Staff to state a position. The Staff believes that the request to conduct discovery on the Applicants on Saturday is such a circumstance and is a matter which should be resolved by these two parties as it appears they have done in the past.1
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See letter of January 23, 1980 from the Applicants' counsel Melbert D.
Schwarz to Mr. Steven Sinkin.
8002130
- While the Staff believes that this issue of conducting discovery beyond normal business hours should be resolved through discussion between the concerned parties and not require the Board to make rulings covering the issue, the Staff, nonetheless, has reviewed the case law on this issue.
In addition to Harris v. Sunset Oil Co., 2 F.R.D. 93 (W. D. Wash, 1941) cited by the Applicants in their response to CCANP's Motion, ! the Staff has considered Miller v. International Paper Co., 408 F.2d 283, 292 and 293 (5th Ci r.1969).
In this case, the appellee gave the appellants notice of the taking of their deposition "beginning on Wednesday..., and continuing thereafter from day to day... until... completed...." The appellants afpeared for deposition on Wednesday, Thursday, and Friday but refused to appear on Saturday.
They were ready and willing to continue the deposition ad late as convenient to the appellees and to return the following Monday.
WKen the appellants failed to appear on Saturday, counsel for appellees p omptly filed motions under rule 37(d) of the Federal Rules of Civil Pro-cedure to dismiss the action and also sought an assessment of " costs, expenses and attorney's fees" against the appellants.
The District court, while not dismissing the action, did impose a penalty assessment.
The Court of Appeals for the 5th Circuit reversed the imposition of a penalty, stating:
In the circumstances of this case, we think the district court abused its discretion when it imposed cost and fee penalties upon the appellants. The unions' notice did not necessarily require the taking of depositions on Satur-day.
The notice stated that depositions were to be taken 2/
" Applicants' Response to CCANP's Motion to Compel Applicants to Bear Expenses of Copying Pursuant to Discovery By Intervenors and Motion to Compel Applicants to Provide Discovery On Saturday", dated Jan-uary 22, 1980, at 4.
. "from day to day" until completed, which obviously could not and would not be enforced literally.
Although many lawyers do work on Saturdays -- and Sundays too for that matter -- the ordinary business of the law takes place during the week-days.
It was perfectly reasonable for the appellants' counsel to expect that weekends would not be included within the phrase "from day to day."
Counsel for the parties should have discussed the matter of week-end depositions maturely and reached an amicable agreement based upon mutual convenience.
The case law supports the Applicants' position that discovery is conducted during nomal business hours and that Saturdays are generally considered beyond nomal business hours.
However, as noted in 'oth cases, the matter of weekend discovery is a matter that should be discussed maturely among the parties so that an amicable agreement can be reached based upon mutual con-venience.
The request that the Applicants (the party upon which discovery is sought) bear the cost of copying the documents requested is, however, a matter upon which the Staff feels compelled to state a position. This request seeks to establish an obligation which is clearly inconsistent with the intent of the Commission's discovery rules.
Section 2.714(a) provides only that the Applicants, or any other party served with a discovery request, "[p]roduce and pemit the party making the request... to inspect and copy any designated documents...."
It is clear that the party producing the documents requested is not obligated to pay for their reproduction. This cost, as correctly noted in the Applicants' answer to CCANP's request, must be borne by the party requesting the reproduction
. of the documents (Applicants' Response, supra, note 2 at 3). This is the rule under the Federal Rules of Civil Procedure and Staff counsel is not aware of any Commission case with a different holding.
If the rule were otherwise, there would be little deterent against adversaries making exces-sive and unreasonable requests for the reproduction of documents. Accordingly the NRC Staff submits CCANP's request for a Board order directing the Applicants to bear the expenses of the copying of the documents requested by CCANP during discovery should be denied.
Respectfully submitted,
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Henryd.McGurren Counsel for NRC Staff Dated at Bethesda, Maryland this 5th day of February,1980
a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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HOUSTON LICHTING AND POWER COMPANY, )
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50-499
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(South Texas Project, Units 1 and 2 )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO CCANP MOTIONS TO COMPEL APPLICANTS (1) TO PROVIDE DISCOVERY ON SATURDAY AND (2) TO BEAR EXPENSES OF COPYING PURSUANi TO DISCOVERY" in the above-captioned prcceeding have been served on the following by deposit in the United States mail, first class, or, as indi-cated by an asterisk, through depcsit in the Nuclear Regulatory Commission's internal mail system, this 5th day of February, 1980:
Charles Bechhoefer, Esq., Chairman
- Richard W. Lowerre, tsq.
Atomic Safety and Licensing Board Assistant Attorney General Panel Environmental Protection Division U.S. Nuclear Regulatory Commission P. O.
Box 12548, Capitol Station Washington, DC 20555 Austin, TX 78711 Dr. James C. Lamb, III Jack R. Newman, Esq.
313 Wcodhaven Road Lowenstein, Newman, Reis, Chapel Hill, NC 27514 Axelrad & Toll 1025 Connecticut Avenue, N.W.
Dr. Emmeth A. Luebke*
Washington, DC 20036 Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel
- Washington, DC 20555 U.S. Nuclear Regulatory Commiss'on Washington, DC 20555 Melbert Schwarz, Jr., Esq.
Baker and Botts Atomic Safety and Licensing Appeal One Shell Plaza Panel (5)*
Houston, TX 77002 U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Lanny Alan Sinkin Citizens Concerned About Nuclear Docketing and service Section ( )*
Power Office of the Secretary 838 E. Magnolia U.S. Nuclear Regulatory Commission San Antonic, TX 78212 Washington, DC 20555 Mrs. Peggy Buchorn Executive Director Citizens for Equitable Utilities, Inc.
Route 1, Box 432 Brazoria, TX 77422
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Henry J.tMcGurren Counsel' for NRC Staff