ML19270G085

Response by Houston Lighting & Power to NRC 790419 Motion for Reconsideration of ASLB 790416 Order.Requests That ASLB Affirms Order Re Creation of New Documents Not Maintained in Normal Course of Business.Certificate of Svc Encl

ML19270G085
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	04/30/1979
From:	Barnett E, Bouknight J, Franklin W BAKER & BOTTS, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:
References
NUDOCS 7906020209
Download: ML19270G085 (11)

Text

.s e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION TERA BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) ~.

) ' 91 HOUSTON LIGHTING & POWER  % Docket Nos. 50-498A COMPANY, et al. 50-499A g 'Sh""? c.T 3 (South Texas Project, -

) I_

%g\9~'$ g '

Units 1 and 2) ) ,

TEXAS UTILITIES GENERATING M" I* ocket Nos. '50-445A COMPANY, et al. 8 650 AA44

) N a-(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

HOUSTON LIGHTING & POWER COMPANY'S RESPONSE TO THE NRC STAFF'S MOTION FOR RECONSIDERATION On April 16, 1979, the Atomic Safety and Licensing Board (" Board") entered its Order Concerning Staff's Motion to Compel Further Answers by Houston Lighting & Power Company

(" Order"). On April 19, 1979, the NRC Staff (" Staff") filed its Motion by the NRC Staff for Reconsideration of the Board's Order (" Motion"). Houston Lighting & Power Company (" Houston")

respectfully submits this Response to the arguments that the Staff raises in its Motion.

1. Houston agrees to expand its indexing effort to include the Staff's Interrogatory Nos. 3, 5, 7 and 31. Houston 2268 06

. 9060209x>9

$ e e similarly has provided the Staff with its current list of priv-ileged documents, which will be updated as necessary.

2. The Staff seeks reconsideration of that part of the Board's Order which denies production of workpapers and other documents generated by or furnished to non-testifying outside consultants.

Houston commits that it will produce all docu-ments on which Mr. D.E. Simmons, who is a corporate officer of Houston, or any other expert witness relies in preparing his expert testimony, whether or not such documents are currently in the possession of the expert. b/ However, the Staff goes much too far in suggesting that work product protection which other-wise applies is not available for documents which Mr. Simmons has reviewed in his capacity as an officer of Houston involved in the direction of this litigation but which he does not intend to rely on in his testimony. 1!

The suggestion that an officer of a corporation which is party to litigation must choose between partici-1/ By separate letter, Houston has provided the Staf f with all workpapers Mr. Simmons relied upon in preparing his District Court testimony.

2_/ 1.3 view of privileged materials by a member of a corporate control group does not waive any applicable privilege. Een Natta v. Zlets, 418 F.2d 633, 637-38 (7th Cir. 1969); Burlington Industries v. Exxon Corp., 65 F.R.D. 26, 32-39 (D.Md. 1974).

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• pation in preparation of the case and testifying as a witness is untenable. See Bercow v. Kidder, Peabody & Co., 39 F.R.D.

356 (S.D.N.Y. 1965) (improper to inquire into adversary's trial preparation on deposition of corporate official) . Furthermore, it is clear that the discoverability of documents from an ex-pert witness may vary as his role in the litigation varies. See Inspiration Consolidated Copper Co. v. Lumbermens Mutual Casualty Co., 60 F.R.D. 205, 210 (S . D .N ..Y. 1973) (work of independent ac-countant as general auditor discoverable; discovery of work per-formed as non-testifying expert limited by FRCP 26 (b) (4) (B)) .

Houston's commitment, as stated above, to pro-vide all documents on which Mr. Simmons relies in preparing his expert testimony should dispel any legitimate concerns raised by the Staff. The Staff's request for production of privileged or protected materials solely because they have been reviewed by Mr. Simmons in his capacity as an officer of Houston should be denied.

3. By providing newly discovered documents for in-spection and copying and by indexing documents previously dis-covered, Houston is fully responding to Staff's Interrogatory No. 6 (e) with respect to all documents concerning Houston's day-to-day operations since the inception of the Company. Houston's objection to producing documents generated after the District 2263 .08

) .

Court trial and solely in connection with settlement negotia-tions cannot inhibit the Staff's :ceparation of its case.

Houston has recently been party to the first meaningful settlement discussions in this controversy. The parties to these discussions have agreed that their discussions and conclusions should be secret to encourage free and open dis-cussions of sensitive problems. To expose these settlement negotiations to discovery would inhibit the candid exchange of ideas that is underway and could significantly reduce the chance of settlement.

Federal courts are empowered under Rule 26(c) of the Federal Rules of Civil Procedure to enter protective orders that tailor specific discovery requests to the overall objectives of the federal discovery rules. It has oftun beea stated that one of the objectives of both federal and state discovery rules is the encouragement of set tlement negotia tions. E.g., 4 MOORE'S FEDERAL PRACTICE 5 26.02[2], at 66 (2d ed. 1976); Developments in the Law--Discovery, 74 EARV. L. REV. 940, 944-46 (1961).

That portion of this Board's Order that p rotects tha parties' efforts toward settlement negotiations based upon the policy enunciated in 10 C.F.R. S 2.759 is complotely consistent with the use of protective orders in the federal practice to effect-uate the policies underlying the discoveJy process. Therefore, Houston respectfully requests this Board to affirm its Order with respect to these settlement documents.

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4. Houston does not possess transmission maps that.are drawn to scale upon which an X-Y coordinate grid system may be superimposed. The " translation" of its trans-mission maps to an X-Y coordinate grid system is thus beyond the capabilities of Houston's personnel. The only way to pro-duce the maps requested in Staff Interrogatory Nos. 37(a) and 42(b) would be to create them. Houston does not possess or generate such documents in its normal course of business, and this is why Houston originally sought the Board's protection with respect to those Interrogatories. 3/ '

The authority that the Staff cites to support its request is inapposite. The reference in Rule 34 of the Federal Rules of Civil Procedure to translation "through detection de-vices" refers to transforming existing computerized data into readable printouts. Advisory Committee Note, 48 F.R.D. 459, 527 (1970); 8 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PRO-CEDURE S 2218 at 657-59 (1970). This, like the translation of existing foreign-language documents into English, is a mechanical transformation of existing information. These examples do not support--and no case decided under Rule 34 has ever required--

the creaticn of documents not in existence and not normally 3/ This dispute does not involve the Staff's access to infor-mation. Houston will make available to the Staff all existing transmission maps and other data concerning its transmission system.

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generated in the course of business. See oppenheimer Fund, Inc. v. Sanders, U.S. , 98 S.Ct 2380, 2395 (1978).

For these reasons, Houston respectfully requests that the Board affirm its Order with respect to the creation of new documents that it does not have or maintain in the normal course of business.

Respectfully submitted, OF COUNSEL:

Baker & Botts E.W. Barnett 1701 Pennsylvania Ave., N.". Baker & Botts Washington, D.C. 20006 3000 One Shell Plaza Houston Texas 77002 J.A. Bouknight, Jr.

William J. Franklin Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.

Washington, D.C.

By: M 4 1m e

,L A . Boukni ht, Jr.

Attorneys for Houston Lighting & Power Company Dated: April 30, 1979 97/o3 u

. 9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATCMIC SAFETY AND LICENSING BOARD In the Matter of )

)

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

)

(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 HOUSTON LIGHTING & POWER COMPANY'S RESPONSE TO THE NRC STAFF'S MOTION FOR RECONSIDERATION, dated April 30, 1979, were served upon the following persons, by hand,* or by deposit in the United States Mail, first class postage prepaid, this 30th day of April, 1979.

$0E /

27G3 _12

1 .

.arshall E. Miller, Esquire

• Mr. Jerome D. Saltzman

.S. Nuclear Regulatory Commission Chief, Antitrust and Indemnity ashington, D. C. 20555 Group U. S. Nuclear Regulatory Commission Washington, D. C. 20555 J. Irion Worsham, Esquire ichael L. Glaser, Esquire

• Merlyn D. Sampels, Esquire 150 17th Street, N.W. Spencer C. Relyea, Esquire ashing ton, D. C. 20036 Worsham, Forsyth & Sampels 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Jon C. Wood, Esquire W. Roger Wilson, Esquire heldon J. Wolfe, Esquire

• Matthews, Nowlin, Macfarlane

.S. Nuclear Regulatory Commission & Barrett fashington, D. C. 20555 1500 Alamo National Building San Antonio, Texas 78205 Charles G. Thrash, Jr., Esquire E. W. Barnett, Esquire tomic Safety and Licensing Theodore F. Weiss, Esquire Appeal Board Panel J. Gregory Copeland, Esquire

. S. Nuclear Regulatory Commission Baker & Botts fashington, D. C. 20555 3000 One Shell Plaza Houston, Texas 77002 R. Gordon Gooch, Esquire hase R. Stephens, Supervisor

• Baker & Botts Docketing and Service Branch 1701 Pennsylvania Avenue, N.W.

. S. Nuclear Regulatory Commission Washingto n , D. C. 20006 ashington, D. C. 20555 } L7v/, g

Roy P. Lessy, Jr., Esquire

• G. W. Oprea, Jr.

dichael B. Blume, Esquire Executive Vice President

. S. Nuclear Regulatory Commission Houston Lighting & Power Company ashington, D. C. 20555 P. O. Box 1700 Houston, Texas 77001 Richard D. Cudahy, Esquire Roff Hardy Joseph Gallo, Esquire hairman and Chief Executive Robert H. Loeffler, Esquire Officer Isham, Lincoln & Beale .

entral Power and Light Company 1050 17th Street, N.W., Suite 701

.O. Box 2121 Washington, D. C. 20036 orpus Christi, Texas 78403

. K. Spruce, General Manager Michael I. liiller, Esquire ity Public Service Board Richard E. Powell, Esquire

.O. Box 1771 David M. Stahl, Esquire

.an Antonio, Texas 78203 Thomas G. Ryan, Esquire Isham, Lincoln & Beale One First National Plaza Chicago, Illinois 60603

.r. Perry G. Brittain Don R. Butler, Esquire President Sneed, Vine, Wilkerson, Selman exas Utilities General Company

& Perry 2001 Bryan Tower P. O. Box 1409 Dallas, Texas 75201 Austin, Texas 78767 R. L. Hancock, Director Jerry L. Harris, Esquire City of Austin Electric Utility Richard C. Balough, Esquire P. O. Box 1086 City of Austin Austin, Texas 78767 P. O. Box 1088 Austin, Texas 78767 2268 .14

oseph B. Knotts, Jr., Esquire Douglas F. John, Esquire icholas S. Reynolds, Esquire Akin, Gump, Hauer & Feld ebevoise & Liberman 1333 New Hampshire Avenue, N,W.

200 17th Street, N.W. Suite 400 ashington, D. C. 20036 Washington, D. C. 20005 Melvin G. Berger, Esquire Ronald Clark, Esquire Don H. Davidson Frederick H. Parmenter, Esquire ity Manager ity of Austin Judith Linda Harris, Esquire

. O. Box 1088 Energy Section Antitrust Division ustin, Texas 73767 U. S. Department of Justice P. O. Box 14141 Washington, D. C. 20044 ay Galt, Esquire Morgan Hunter, Esquire coney, Nichols, Johnson & Hays Bill D. St. Clair, Esquire 219 Couch Drive McGinnis, Lockridge & Kilgore klahoma City, Oklahoma 73102 Fifth Floor Texas State Bank Building 900 Congress Avenue Austin, Texas 78701 Knoland J. Plucknett W. S. Robson Executive Director General Manager South Texas Electric Cooperative, Committee on Power for the Inc.

Southwest, Inc.

5541 East Skelly Drive Route 6, Building 102 Tulsa, Oklahoma 74135 Victoria Regional Airport Victoria, Texas 77901 Robert C. McDiarmid, Esquire John W. Davidson, Esquire Robert A. Jablon, Esquire Sawtelle, Goode, Davidson & Tioilo 1100 San Antonio Savings Building Marc R. Poirier San Antonio, Texas 78205 Spiegel & McDiarmid 2600 Virginia Avenue, N.W.

Washington, D. C. 20036 2263 _

s evin B. Pratt exas Attorney General's Office

.O. Box 12548 us tin , Texas 78711 illiam H. Burchette, Esquire rederick H. Ritts, Esquire aw Offices of Northcutt Ely atergate 600 Building ashington, D. C. 20037 om W. Gregg, Esquire

.O. Box Drawer 1032 an Angelo, Texas 76902 2268 'i6 eland F. Leatherman, Esquire cMath, Leatherman & Woods, P.A.

11 West Third Street ittle Rock, Arkansas 72201 aul W. Eaton, Jr., Esquire inkle, Cox, Eaton, Coffield &

Hensley 00 Henkle Building

.O. Box 10 Roswell, New Mexico 88201