ML19290D538
| ML19290D538 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, South Texas  |
| Issue date: | 02/14/1980 |
| From: | Mark Miller Atomic Safety and Licensing Board Panel |
| To: | JUSTICE, DEPT. OF |
| References | |
| NUDOCS 8002220142 | |
| Download: ML19290D538 (3) | |
Text
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UNITED STATES OF AMERICA
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A NUCLEAR REGULATORY COMMISSION s
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,q THE ATOMIC SAFETY AND LICENSING BOARD -;
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\\ ' 'A Ye.5,Y.y Marshall E. Miller, Esquire, Chairman
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f E Michael L. Glaser, Esquire, Member-Sheldon J. Wolfe, Esquire, Member
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In the Matter of
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HOUSTON LIGHTING & POWER COMPANY, et al.
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Docket Nos. 50-498A (South Texas Proj ect,
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50-499A Units 1 and 2)
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TEXAS UTILITIES GENERATING COMPANY, et al. )
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Docket Nos. 50-445A (Comanc~e Peak Steam Electric Station,
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50-446A a
Units 1 and 2)
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ORDER DIRECTING JUSTICE TO PRODUCE FORTHWITH CERTAIN DRAFT EXPERT TESTIRrY (February 14, 1980)
On January 21, 1980, Houston Lighting & Power Company (HL&P) filed a motion to compel the Department of Justice (Justice) to produce certain drafts of written testimony previously prepared by William E.
Scott.
By its Order entered October 23, 1979, the Board had directed Justice to produce Mr. Scott's preliminary draft testimony.
This witness had been previously identified as one of Justice's expert engineering witnesses, and he testified at his deposition that he had prepared and sent to counsel for Justice several drafts of his expected testimony (Depo. Tr. 18-19, 178-82).
This Order was never complied with.
Justice sought to explain its dereliction in complying with our Order by stating that it had made efforts to produce this draft 2
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. testimony.
There was no adequate explanation as to what had become of the several drafts Mr. Scott testified he had sent to Justice (Tr. 18-19).
Justice also pointed out that it learned about January 8, 1980, that this witness had an assignment of high priority with the Department of Energy, which would prevent him from working with Justice for 8 to 12 weeks.
By a letter dated January 15, 1980, counsel for Justice advised HL&P, with copies to all counsel and the Board, that it " presently does not anticipate that William E. Scott will testify as an expert witness in the above-captioned matters.
Accordingly, Justice will not produce Mr. Scott's draft testimony or make him available for deposition in March."
Justice made no effort to move the Board to modify its October Order, but unilaterally decided that since it would not or might not call Mr. Scott as a witness, it need not comply with the Order.
Justice is wholly in error in this view.
The fact that our Order discussed among other things the factors of competence and bias of a testifying expert as some reasons for allowing discovery of early drafts of testimony, did not empower Justice to ignore the Order when it " presently" decided that he might not testify, but reserved the right to "re-designate Mr. Scott as an expert witness" at a later date.
This conduct by Justice is wholly unacceptable.
Discovery is an important pretrial tool, and it is not to be subject to possible
. manipulation or arbitrary conduct by any party or counsel.
Justice is ordered to produce forthwith for discovery all drafts of testimony or similar written materials or studies prepared by Mr. Scott in connection with this proceeding.
He shall also be subject to further depos'ition as to work performed by him while he was or is a designated expert in this proceeding, if requested by any party.
It is so ordered.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
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Marshall E. Miller, Chairman Dated at-Bethesda, Maryland this 14th day of February 1980.
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