ML19276E550
| ML19276E550 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 02/22/1979 |
| From: | Barnett E, Franklin W BAKER & BOTTS |
| To: | |
| References | |
| NUDOCS 7903140633 | |
| Download: ML19276E550 (8) | |
Text
' TERA N
UNITED STATES OF AMERICA 9
NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
/j In the Matter of l
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I HOUSTON LIGHTING & POWER
- COMPANY, et al.
)
Docket No. 50-498A
)
50-499A (South Texas Project,
)
Units 1 and 2) l
)
TEXAS UTILITIES GENERATING
- COMPANY, ej al.
Docket No.
0-44 A Comanche Peak Steam Electric j
Station, Units 1 and 2
)
HOUSTON LIGHTING & POWER COMPANY'S OBJECTIONS AND MOTION FOR A PROTECTIVE ORDER REGARDING DISCOVERY REQUEST FROM NRC STAFF Houston Lighting & Power Company (Houston) responded, on Feburary 20, 1979, to interrogatories and a request for document production dated January 15, 1979, and directed to Houston by the NRC Staff (Staff).
Pursuant to 10 CFR S 2.740 (c), Houston objects to certain of the requests and moves the Board for a protective order, as follows:
General Objection 1.
Houston objects to Instruction No. 5 which would require Houston to group and mark by interrogatory all documents produced to the Staff.
The instruction apparently would require that Houston review documents previously made available to the Staff, sort them among the Staff's current numbered requests, 7 9 0 314 0(cN
and prepare a list containing extensive information about each such document.
No provision of the NRC's Rules and Practice permits a party to impose such a burden upon another party by the simple device of including such an instruction in a discovery request.
Moreover, such a requirement would be particularly unreasonable in this case, where the documents concerned have already been reviewed and selectively copied by the Staff. b/
compliance with the Staff's instruction would impose undue burden and expense upon Houston (performing the task called for would require hundreds of manhours of time) and would not relieve the Staff of any material burden.
Moreover, Houston would be called upon to make subjective, essentially legal judgments for no purpose other than facilitating (if it does facilitate) preparation of the Staff's case.
Under such circumstances, Houston is entitled to a protective order which deletes Instruction No. S and makes clear that Houston is not required to list, sort, or index documents made available to the Staff, either in direct response to the instant request or in previous voluntary production.
Specific objections 2.
Houston objects to requests 1(d) and 1(g) on the ground that they request documehis relating to expert' witnesses beyond the
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It is not as though the Staff fears that it will be directed to an unfamiliar mass of documents and wishes to avoid the work of culling relevant materials.
The culling has already been done by the Staff, with complete cooperation from Houston.
Presumably, the Staff conducted its review with some idea of relating docu-ments to subject matters of interest to the Staff.
4 e
, scope of Federal Rule f Evidence 705.
Houston also objects to request 1(d) on the ground that it requests Houston's attorneys to make subjective, legal judgments as to the significance of documents and, as such, calls for the mental impressions, conclusions, opinions, or legal theories of Houston's attorneys in violation of 10 CFR S 2.740 (b) (2).
3.
Foustop objects to request 6 (e) to the extent that it requests documents prepared in anticipation-of or during litigation ar..ettlement negotiations.
Such documents are privileged as or contain the mental attorney-client privilege or work product; impressions, conclusions, opinions, or legal theories of Houston's attorneys and as such, production of which would violate 10 CFR are not calculated to lead to relevant evidence; S 2.740 (b) (2);
and are protected from discovery by the policies underlying Federal Rule of Evidence 408 and 10 CFR S 2.759.
Such policies, and the necessary extension of those policies resulting in denial of production See of this type, has been recognized in NRC antitrust proceedings.
Florida Power & Light Co.
(St. Lucie Plant, Unit No. 2) Docket No.
(Memorandum and Order on Discovery, February 9,
.50-389A, 9 NRC 1979) (slip op. at 36-38).
4.
Houston objects to requests 8 (c) and 21 on the ground that they elicit neither facts nor evidence but are argumentative Furthermore, Houston objects to request 21 on in nature and tone.
the ground that it requests the mental impressions, conclusions, opinions, and legal theories of Houston's attorneys in violation of 10 CFR S 2.740 (b) (2).
, 5.
Houston objects to request 37(a) on the ground that it is burdensome.
Houston does not have the map requested, and preparation of such a map would be a burden of Houston's employees and an expense to Houston not serving any valuable business purpose save for this proceeding.
Furthermore, this burden which the Staff seeks to have Houston bear yields no real benefit to the Staff.
From information provided by Houston in response to other subparts of request 37, the Staff can derive substantially the same information as the map would provide.
6.
Houston objects to requests 43 and 45 on the grounds that they are not relevant to any issues set forth in the Board's pre-conference order of June 13, 1978.
Motion for Protective Order WHEREFORE, Houston moves the Board for a protective order with respect to the Staff's Request dated January 15, 1979:
(a)
Relieving Houston from compliance with Instruction No.
5, as requested in paragraph 1 above; (b)
Relieving Houston from the obligation to produce documents prepared in anticipation of or during litigation or for settlement negotiations to the extent required by request 6 (e) or otherwise.
(c)
Ordering that the discovery sought by requests 1(d), 1(g), 8 (c), 21, 3 7 (a), 43, and 45 not be had.
, Respectfully Submitted A
Of Counsel:
William J. /ranklin Baker & Botts 1701 Pennsylvania Avenue E.W. Barnett N.W.
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.
20036 Attorneys for Houston Lighting & Power Company Dated:
February 22, 1979
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC 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 Objections and Motion For A Protective Order Regarding Discovery Request From NRC Staff were served upon the following persons, by hand *, or by deposit in the United States Mail, first class postage prepaid, this 22nd day of February, 1979.
e
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Marshall E. Miller, Esquire Roy P. Lessy, Jr., Esquire U.S. Nuclear Regulatory Commission Michael B.
Blume, Esquire Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Michael'L. Glaser, Esquire 1150 17th Street, N.W.
Roff Hardy Washington, D.C. 20036 Chairman and Chief Executive Officer Sheldon J. Wolfe, Esquire Central Power and Light Company U.S. Nuclear Regulatory Commission P.O. Box 2121 Washington, D.C.
20555 Corpus Christi, Texas 78403 Atomic Safety and Licensing G.K. Spruce, General Manager Appeal Board Panel City Public Service Board U.S. Nuclear Regulatory Commission P.O. Box 1771 Washington, D.C. 20555 San Antonio, Texas 78203 Chase R. Stephens, Supervisor (20)
- Mr. Perry G. Brittain Docketing and Service Branch President U.S. Nuclear Regulatory Commission Texas Utilities General Company Washington, D.C.
20555 2001 Bryan Tower Dallas, Texas 75201 Mr. Jerome D.
Saltzman Chief, Antitrust and Indemnity R.L. Hancock, Director Group City of Austin Electric Utility U.S. Nuclear Regulatory Commission P.O. Box 1086 Washington, D.C. 20555 Austin, Texas 78767 J.
Irion Worsham, Esquire G.W. Oprea, Jr.
Merlyn D.
Sampels,. Esquire Executive Vice President Spencer C.
Relyea, Esquire Houston Lighting & Power Company Worsham, Forsyth & Sampels P.O. Box 1700 2001 Bryan Tcwer, Suite 2500 Houston, Texas 77001 Dallas, Texas 75201 Richard D. Cudahy, Esquire Jcn C. Wood, Esquire Joseph Gallo, Esquire W. Roger Wilson, Esquire Robert H.
Loeffler, Esquire Matthews, Nowlin, Macfarlane Isham, Lincoln & Beale
& Barrett 1050 17th Street, N.W.,
Suite 701 1500 Alamo National Building Washington, D.C.
20036 San Antonio, Texas 78205 Eichael I.
Miller, Esquire Charles G. Thrash, Jr., Esquire Richard E. Powell, Esquire E.W.
Barnett, Esquire David M.
Stahl, Esquire Theodore F. Weiss, Esquire Thomas G. Ryan, Esquire J. Gregory Copeland, Esquire Isham, Lincoln & Beale Baker & Botts One First National Plaza 3000 One Shell Plaza Chicago, Illinois 60603 Houston, Texas 77002 R.
Gordon Gooch, Esquire Baker & Botts 1701 Pennsylvania Avenue, N.W.
Washington, D.C.
20006
. Don R. Butler, Esquire Morgan Hunter, Esquire Sneed, Vine, Wilkerson, Selman Bill D.
St. Clair, Esquire
& Perry McGinnis, Lockridge & Kilgore P.O. Box 1409 Fifth Floor Austin, Texas 78767 Texas State Bank Building 900 Congress Avenue Jerry L. Harris, Esquire Austin, Texas 78701 Richard C. Balough, Esquire City of Austin W.S. Robson P.O. Box 1088 General Manager Austin, Texas 78767 South Texas Electric Cooperative, Inc.
Joseph B.
Knotts, Jr., Esquire Route 6, Building 102 Nicholas S. Reynolds, Esquire Victoria Regional Airport Debevoise & Liberman Victoria, Texas 77901 1200 -- 17th Street, N. W.
Robert C. McDiarmid, Esquire Washington, D. C.
20036 Robert A. Jablon, Esquire Marc R.
Poirier Spiegel & McDiarmid Don H.
Davidson 600 Virginia Avenue, N.W.
City Manager Washington, D.C.
20036 City of Austin P.O. Box 1088 Kevin B. Pratt Austin, Texas 78767 Texas Attorney General's Office P.O. Box 12548 Jay Galt, Esquire Austin, Texas 78711 Looney, Nichols, Johnson & Hays 219 Couch Drive William H. Burchette, Esquire Oklahoma City, Oklahoma 73102 Frederick H. Ritts, Esquire Law Offices of Northcutt Ely Knoland J. Plucknett Watergate 600 Building Executive Director Washington, D.C.
20037 Committee on Power for the Southwest, Inc.
Tom W. Gregg, Esquire 5541 East Skelly Drive P.O. Box Drawer 1032 Tulsa, Oklahoma 74135 San Angelo, Texas 76902 John W. Davidson, Esquire Leland F. Leatherman, Esquire Sawtelle, Goode, Davidson & Tioilo McMath, Leatherman & Woods, P.A.
1100 San Antonio Savings Building 711 West Third Street San Antonio, Texas 78205 Little Rock, Arkansas 72201 Douglas F. John, Esquire Paul W. Eaton, Jr., Esquire Akin, Gump, Haver & Feld Hinkle, Cox, Eaton, Coffield &
1100 Madison Office Building Hensley 1155 15th Street, N.W.
600 Henkle Building Washington, D.C.
20005 P.O. Box 10 Roswell, New Mexico 88201 Ronald Clark, Esquire Frederick H. Parmenter, Esquire Judith Linda Harris, Esquire Energy Section Antitrust Division U.S. Department of Justice P.O. Box 14141 Washington, D.C.
20044