ML19274E579
| ML19274E579 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, South Texas  |
| Issue date: | 03/15/1979 |
| From: | Lessy R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7904090211 | |
| Download: ML19274E579 (7) | |
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VilITED STATES Of f.!' ERICA fiUCLEAR REGULATORY CO." MISSION BEFORE THE AT0"IC SAFETY AND LICE!!SIl!G BOARD In the l'atter of
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Il0VSTON LIGitTIflG & POWER C0"PANY
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fiRC Docket Nos. 50-498A PUBLIC SERVICE C0ARD OF SAN ANTONIO )
50-499A CITY OF AUSTIll
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CENTRAL POWER AND LIGHT CC' IPA'4Y
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(South Texas Project, Unit flos.
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1 and 2)
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TEXAS UTILITIES CEi!ERATING
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NRC Docket flos. 50-445A C0",PAtY, et al.
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50-446A (Cora nch. Peak Stean Electric
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- Station, nits 1 and 2)
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likC STAFF'S OBJECTIONS TO INTERROGATORY #3 PROPOUNDED BY HOUSTON LIGHTING & POWER C0!iPANY AND f*0 TION FOR A PROTECTIVE ORDER On March l,1979, the NRC Sta ff responded to the "Second Set Of Interregatories And Request for Production Of Documents..." filed by liouston Lighting & Power Company (" Houston"). The Staff respectfully requests this Board to issue a protective order with respect to interrogatory #3 of said interrogatories pursuant to 10 CFR 62.740(c) of the Commission's Rules of Practice.
P >rsuant to interrogatories one and two, the Staff, as requested, has provided to Houston the names of the fact and expert witnesses who may testify on behal f of the Staff in this proceeding.
However, interrogatory
_l)
- 3 requests that the Staff identify any expert or consultant, past or present, who has performed work for the Staff in this proceeding "but
_lf Interrogatory #3 provides:
" 3(a ).
Identify each expert or consultant who is performing or who has performed work for the Sta ff in connection with this proceeding but who is not expected to testify.
(b).
Specify the scope of work performed or to be performed by each expert or consultant."
79040002 11
who is not expected to testify," (emphasis added).
This request collides with Rule 26(b) of the Federal Rules of Civil procedure. That provision in relevant part provides:
(4) Trial preparation: Experts' Discovery of facts known and opinion held by experts, otherwise discoverable under the provisions of subdivided (b)(1) of the rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identi fy each person whom the other party ex-pects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance and the facts and opinions to which the expert is expected to testify, and the summary of the grounds for each opinion...
(B)
(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or prepa-ration for t'ial as provided in Rule 35(b) 2/ or upon a showing of exceptional circumstances under which it is impracticable for the parties seeking discovery to obtain facts or opinions on the same subject by other neans.
Rule 26(b)(4)(A)(i), (D).
Houston has not demonstrated any " exceptional circumstances" whereby it is impracticable for it to obtain facts or opinions which relate to this proceeding.
Indeed, the Staff has made available to Houston, even prior to the Staff's written response to Houston's interrogatories, the names of the Staff's engineering and economic experts (and consultants) who are expected to testify in this proceeding. Moreover, Houston has retained its own experts with respect to the same subject matter.
2/ The Rule 35(b) exception does not tpply to this proceeding because it pertains only to examinations by physicians.
An instructive case interpreting Rule 26 is Ingpiratior Consolidated C_opper Co. v. Lumbermens flutual Casualty Co._, 60 FRD 205 (S.D fl.Y.,1973).
After observing that the party seeking the protective order had made its books and records available to the party seeking discovery, the district court concluded that access to these records was sufficient to defeat a claim of " exceptional circumstances." The court perceptively observed:
To hold otherwise would tend, at least in this case, to expose the theories and opinions that were si f ted to arrive at the theory of the claim for relief with the aid of an expert.
This sort of riaterial is with-held tren discovery not because it is work product...
but because it is unfair to compel discovery of the consultative opinion of an expert who will not testify on the subject natter.
It is easy enough for the moving party to obtain his own expert opinion based on the facts and figures discovered...
60 FRD 205.
Thus, courts following the Federal Rules have refused to permit discovery against non-testi fying expert witnesses in the absence of a showing of
" exceptional circumstances."
In re IBM Peripheral EDP Devices Antitrust Litigation _, 77 FRD 39 (ll.D. Cal.,1977), Galella v. Onassis, 437 F.2d 986, 996 n.13(h), (2nd Cir.1973); Sei ffer v. Topsy's International, Inc.,
69 FRD 69 (D.C. Kansas,1975).
As noted by the Sei ffer court, supra.,
e the overall design of the discovery rules must be kept clearly in focus in evaluating the merits...The crucial point is that Rule 26 of the Federal iNies of Civil Procedure overrules and limits the more general provisions of the remaining discovery machincry..
69 FRD 72.
The Sei_ffer court is one of the few courts to detail the burden of the party seeking to prove " exceptional circumstances" necessary to override the protection of the Federal Rules afforded an expert consulted but who will not offer testimony. The Seif fer court adopted the language of
_4_
Rule 26b in concluding that it is necessary to demonstrate that it is impracticabic to obtain facts or opinions on the same subject by other means, before permitting discovery of the consultative opinion of an expert who will not testify, 69 FRD 72.
Inasmuch as the Staff has identified for Houstoa the experts it intends to use as witnesses during the hearing, and that these experts cover the entire subject matter of expert opinion which the Staff has sought or will seek with respect to this proceeding, the Staff believes that ilouston cannot meet its burden of establishing " exceptional circumstances."
Wherefore, Staff hereby moves the Board for a protective order relieving it from the obligation of responding to llouston's Interrogatory
- 3.
Respectfully submitted, 9
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_. %%Lu [Q, Roy P. Lessy, Jr Counsel for NRC Staff Dated at Bethesda, Maryland this 15th day of 'iarch 1979.
UtilTED STATES OF AMERICA fiUCLEAR REGULATORY C0":11SSION BEFORE THE ATOMIC SAFETY Afin LICEflSIfiG BOARD In the Matter of
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HOUST0ii LIGitTING & POWER C0?!PANY
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fiRC Docket fios. 50-498A PUBLIC SERVICE DOARD OF SAfl AfiT0!i10 )
50-499A CITY OF AUSTIN
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CEf1 TRAL PO'.1ER AllD LIG!IT COMPAfiY
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(South Texas Project, Unit lios.
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1 and 2)
)
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TEXAS UTILITIES GENERATIfiG
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fiRC Docket tios. 50-445A COMPANY, et al.
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50-416 A (Comanche Tiai Steam Electric
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Station, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of HRC STAFF'S OBJECTIONS TO INTERROGATORY
- 3 PROPOU"DED DY HOUST0ft LIG!!TI!iG & POWER C0"PANY AND MOTI0ft FOR A PROTECTIVE ORDER in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the fluclear Regulatory Commission's internal mail system, this 15th day of March,1979.
Marshall E. Miller, Esq., Chairman Donald A. Kaplan, Esq.
Atomic Safety and Licensing Board Ray Phill ips, Esq.
Panel John D. Whi tler, Esq.
U.S. Nuclear Regulatory Commission Ronald H. Clark, Esq.
Washington, D.C.
20555
- Judith L. Harris P.O. Box 14141 Michael L. Glaser, Esq.
Washington, D.C.
20044 1150 Seventeenth Street, fi.W.
Washington, D.C.
20036 Rof f Hardy Chairman and Chief Executive Sheldon J. Wol fe, Esq.
Of fice r Atomic Safety and Licensing Board Central Power & Light Company Panel Corpus Christi, Texas 78403 U.S. fluclear Regulatory Commission R.L. Hancock, Di rector Washington, D.C.
20555
- City of Austin Electric Utility Atomic sa fety and Licensing Board P.O. Box 1088 U.S. Nuclear Regulatory Commission Austin, Texas 78767 Washington, D.C.
20555 G.W. Oprea, Jr.
Docketing and Service Section Executive Vice President Office of the Secretary Houston Lighting & Power Company U.S. Nuclear Regulatory Commission P.O. Box 1700 Houston, Texas 77001 Washington, D.C.
20555
- Robert Lowenstein, Esq.
Robert E. Bathen, Esq.
J.A. Douknight, Esq.
R.W. Beck & Associates Wiilima J. Franklin, Esq.
P.O. Box 6817 Lowenstein,flewman, Reis & Axelrad Orlando, Florida 32803 1025 Connecticut Avenue, U.11 tlashington, D.C.
20036 J.K. Spruce, General Manager City Public Service Board Jerome Sal tzman, Chief P.O. Box 1771 Antitrust & Indemnity Group San Antonio, Texas 78203 U.S. liuclear Regulatory Comnission Washington, D.C.
20555 *
!! arc R. Poirier, Esq.
Robert C. McDiarnid, Esq.
Jerry L. Harris Robert A. Jablon, Esq.
Richard C. Balough David A. Giacalone, Esq.
Dan H. Davidson, City Manager Spiegel & l'cDiarmid Ci ty o f Aus ti n 2600 Virginia Avenue, N.W.
P.O. Box 1088 liashington, D.C.
20037 Austin, Texas 78767 Jon C. Wood, Esq.
John E. fia thews, Jr., Esq.
W. Roger Wilson, Esq.
fiathews, Osborne, Ehrlich, McNatt, flatthews, Nowlin, Macfarlane Gobelman & Cobb
& Barrett 1500 American lieritage Life Building 1500 Alarao flational Building Jacksonville, Florida 32202 San Antonio, Texas 78205 Tracy Danese, Esq.
R. Cordon Gooch, Esq.
Vice President John P. Ma thi s, Esq.
Florida Power & Light Company Baker & Botts P.O. Box 013100 1701 Pennsylvania Avenue, fl.W.
Miami, Florida 33101 Washi ngton, D.C.
20005 Jay Galt, Esq.
Richard D. Cudahy, Esq.
Jack P. Fi te, Esq.
Joseph Gallo, Esq.
Looney, Nichols, Johnson & Hayes Robert H. Loeffler, Esq.
219 Couch Drive Isham, Lincoln & Beale Oklahoma Ci ty, Oklahoma 73102 Suite 701 105017th Street, N.W.
M.D. Sampels, Esq.
Washington, D.C.
20036 Jos. Irion Horsham, Esq.
Spencer C. Relyea, Esq.
J. Gregory Copeland, Esq.
2500 - 2001 Bryan Tower Charles G. Thrash, Jr., Esq.
Dallas, Texas 75201 E. William Barnett, Esq.
Melbert D. Schwarz, Esq.
Morgan Hunter, Esq.
Finis E. Cowan, Esq.
McGinnis, Lochridge & Kilgore Theodore F. Weiss, Esq.
Fifth Floor, Texas State Bank Raker & Botts Building 3000 One Shell Plaza 900 Congress Avenue Houston, Texas 77002 Austin, Texas 78701 llicholas S. Reynolds, Esq.
John 11. Davidson, Esq.
Joseph B. Knotts, Esq.
Sawtelle, Goode, Davidson & Troilo Debevoise & Liberman 1100 3an Antonio Savings Building 1200 Seventeenth Street, fl.W.
San Antonio, Texas 78205 Washington, D.C.
P.0036 Richard E. Powell, Esq.
Douglas F. John, Esq.
David f1. Stahl, Esq.
Akin, Gump, llauer & Feld Thomas G. Ryan, Esq.
1100 liadison Office Building tit chael I. fliller, Esq.
1155 Fi f teenth Street, fl.U.
Ishan, Lincoln & Beale Washington, D.C.
20005 One First flational Plaza Suites 4200, 4300 Don R. Butler, Esq.
Chicago, Illinois 60603 Sneed, Vine, Wilkerson, Selnan
& Perry Somervell County Public Library P.O. Box 1409 P.O. Box 417 Austin, Texas 78767 Glen Rose, Texas 76043 Kevin B. Pratt l'aynard Human, Ocneral llanager Attorney General's Office Western Farmers Electr-ic Cooperative Sta te of Texas P.O. Box 429 P.O. Box IP548 Anadarko, Oklahoma 73005 Austin, Texas 78711 James E. f onahan Frederick H. Ri tts, Esq.
Executive Vice President William H. Durchette, Esq.
and General I-anager Law Offices of florthcutt Ely Brazos Electric Po.ler Cooperative, Inc.
Watergate 600 Building P.O. Box 6296 Washington, D.C.
20037 Waco, Texas 76706
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