ML19305E169

Motion to Compel Production of Documents & JW Wilson Expert Testimony by Public Utils Board of City of Brownsville,Tx. If Motion Not Granted,Requests Order Precluding Wilson from Hearing.W/Proposed Order Re Schedule & Certificate of Svc

ML19305E169
Person / Time
Site:	South Texas, Comanche Peak, 05000449
Issue date:	04/03/1980
From:	Baldwin J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19305E163	List: ML19305E162 ML19305E169
References
NUDOCS 8004230074
Download: ML19305E169 (11)

Text

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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) )

HOUSTON LIGHTING & POWER COMPANY'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND DEPOSITION TESTIMONY BY THE PUBLIC UTILITIES BOARD OF BROWNSVILLE AND ITS '

EXPERT WITNESS, JOHN W. WILSON Houston Lighting & Power Company (Houston) moves the Atomic Safety and Licensing Board (the Board) to issue an Order compelling the Public Utilities Board of the City of Brownsville (PUB) and its expert witness, Dr. John W. Wilson, to produce all documents referring or relating to or setting forth Dr. Wilson's analysis or consideration of the so-called market for the generation of electric power by nuclear-fueled generators (the nuclear power market), and to thereafter make available Dr. Wilson for cross-examination on deposition con-cerning such market. In the alternative, Houston moves the Board to Order that if PUB and Dr. Wilson continue to refuse to produce such documents and give such testimony, Dr. Wilson 8 0 0 4 23 0 cf7f l

will be precluded from offering testimony on this market at the hearing.

During the course of discovery Houston has served inter-rogatories and document requests on the PUB that sought to discover the relevant markets to which PUB's expert witness will testify. Subsequently, on December 19, 1979, PUB filed its Further Supplemental Response to Houston's First Set of Written Interrogatories, which set forth its allegations of relevant markets in Interrogatory Nos. 24, 33 and 34.

On March 24-26, 1980, Houston, Texas Utilities, and C&SW deposed PUB's expert economic witness, Dr. John W. Wilson.b! Dr.

Wilson testified that he was the principal author of the market analysisi contained in PUB's Further Supplemental Response; and when asked to set forth the relevant markets to which he will testify, Dr. Wilson referred counsel to Interrogatory Answer Nos. 24, 33 and 34 in that pleading.

Included among the relevant markets in Interrogatory Answer Nos. 24, 33 and 34 is the so-called nuclear power market. Dr. Wilson admitted that this was a market of his own making and that the nuclear power market had never been adopted by a single court or regulatory agency. Moreover, when counsel for Houston attempted to discover Dr. Wilson's workpapers on this market, the witness maintained that not one scrap of paper relating to this market 1/ Dr. Wilson had been deposed previously for part of a day on December 20, 1979 and (after a hiatus due to Dr. Wilson's personal schedule and illness of counsel) on February 8, 1980. On both occasions Dr. Wilson indicated that his analysis of this case was only superficial and that he had more work to do. The deposition in March sought to explore his final conclusions and analysis and his work relating thereto.

, has been generated in this case, except for the pleading item referring to the market. Nor has the PUB furnished Houston or other parties with any documentation of Dr. Wilson's work on this new market.

Questioning then revealed that Dr. Wilson was retained as an expert witness in a civil suit filed in federal district court in Florida, The Fort Pierce Utilities Authority of the City of Fort Pierce, et al. v. Florida Power & Light Company, Civil Action No. 79-5101-Civ-JLK (S.D. Fla.), and that Dr. Wilson was proposing his so-called nuclear power market as a relevant market in that proceeding. As soon as counsel for Houston sought to question the witness on the nature of his work on that market in the Fort Pierce case, counsel for PUB instructed his witness not to answer any questions concerning the nature, scope or details of his work on the nuclear power market in that proceed-ing. A unanimous and vigorous objection by all counsel present was unavailing to change PUB's position.S!

Counsel for PUB's ostensible reason for his instruction was that the law firm of Lowenstein, Newman, Reis, Axelrad & Toll (LNRAT) was both representing Houston in this proceeding and the defendant in the Fort Pierce case. Why this should prevent dis-covery of relevant matters in this case was unarticulated; and indeed, PUB's counsel admitted that the information Houston was S! Houston requested the Reporter to expedite the portions of the deposition pertinent to this motion. While they have not yet arrived, waiting further does not seem pro-ductive under the circumstances.

seeking would not be immune from discovery in the Fort Pierce case. Nevertheless, in an attempt at conciliation, counsel from LNRAT offered to leave the deposition and to have the sought-after testimony taken under an appropriate protective order. PUB's counsel and his witness, however, remained intransigent.

Dr. Wilson is seeking to advance his novel theory in two forums at once. This being so, he can hardly be heard to object to full discovery of his work in each forum. Nor should he be allowed to hide the work that he has done toward developing his theory by associating it only with the more slowly developing of the two cases in which he propounds that theory.

Houston is faced with an expert witness proffering testimony on a relevant market of his own concoction while simultaneously denying Houston the discovery it needs to meaningfully cross-examine the witness on his conclusions. -

There is no documentation of the so-called nuclear power mar-ket in this case beyond the conclusory market definition authored by the witness as a pleading item. There is no pre-cedent for the market in reported decisions, as the witness admits. The single other instance in which this witness (or, it would seem, any witness) has analyzed the nuclear power mar-ket as a relevant market in an antitrust proceeding is Dr.

Wilson's work in the Fort Pierce case. Houston believes that it cannot be afforded a full and free cross-examination of Dr. Wilson without access to his analysis in that case.

. -S-Therefore, Houston requests that the Board order PUB and its expert witness to produce all documents in their possession, custody or control that refer or relate to or set forth any analysis of the nuclear power market by Dr. Wilson or his firm in the Fort Pierce case. Furthermore, Houston requests an Order compelling Dr. Wilson to attend a deposition to be taken after auch document production and to respond to questions concerning the analysis revealed by the documents or otherwise done of the nuclear power market. In the alternative, if the requested documents and deposition testimony are not obtained, Ilouston requests an Order precluding Dr. Wilson from offering testimony at the hearing on the so-called nuclear power market.

Respectfully submitted, i

O Rd.A hAALAs J[ Michael Baldwin Attorney f@T Houston Light 3ng &

Power Company OF COUNSEL:

Baker & Botts 3000 One Shell Plaza Houston, Texas 77002 Lowenstein, Newman, Reis Axelrad & Toll 1025 Connecticut Avenue, N.W.

Washington, D. C. 20036 DATED: April 3, 1980 P

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

)

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

)

(South Texas Project, Units 1 )

and 2) )

)

TEXAS UTILITIES GENERATING COMPANY, ) Docket Nos. 50-445A et al. ) 50-446A

)

(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

ORDER REGARDING RESPONSES TO HOUSTON LIGHTING & POWER COMPANY'S  ;

MOTION TO COMPEL On April 3, 1980, Houston Lighting & Power Company filed Houston Lighting & Power Company's Motion to Compel Production of Documents and Deposition Testimony by the Public Utilities Board of Brownsville and its expert witness, John W. Wilson.

Copies of that Motion and an accompanying cover letter were hand-delivered to the Public Utilities Board on that date.

The Board finds that there is good cause for a modification of the schedule to respond to said Motion. Therefore, pursuant to 10 CFR S 2.711(a), the Board orders the following schedule be adopted: ,

April 10, 1980 Responses hand-deliveries to the Board and Houston by the Public Utilities Board (and any other responding Party)

April 11, 1980 Conference call to resolve issues raised by this Motion 1

D Counsel for Houston will be responsible to arrange the con-ference call between the Board, the Public Utilities Board, any other party responding to the Motion, and itself.

IT IS SO ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Dated at Bethesda, Maryland April , 1980

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD L

In the Matter of )

)

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

)

(South Texas Project, Units 1 )

and 2) )

)

TEXAS UTILITIES GENERATING COMPANY ) Docket Nos. 50-445A et al. ) 50-446A

)

(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the foregoing:

1. Letter to the Board from Douglas G. Green

2. Houston Lighting & Power Company's Motion to Compel Production of Documents and Deposition Testimony by the Public Utilities Board of Brownsville and Its Expert Witness, John W. Wilson

3. Order Regarding Responses to Houston Lighting &

Power Company's Motion to Compel were served upon the following persons, by hand *, or by deposit in the United States Mail, first class postage prepaid, this 3rd day of April, 1980.

==

• Marshall E. Miller, Esquire

• Fredric D. Chanania, Esquire

. U.S. Nuclear Regulatory Commission Michael B. Blume, Esquire Washington, D.C. 20555 Ann P. Hodgdon, Esquire U.S. Nuclear Regulatory Commission

• Michael L. Glaser, Esquire Washington, D.C. 20555 1150 17th Street, N.W.

Washington, D.C. 20555 Roff Hardy Chairman and Chief Executive 1

• Sheldon J. Wolfe, Esquire Officer U.S. Nuclear Regulatory Commission Central Power and Light Company Washington, D.C. 20555 Post Office Box 2121 Corpus Christi, Texas 78403 Atomic Safety and Licensing Appeal Board Panel G.K. Spruce, General Manager U.S. Nuclear Regulatory Commission City Public Service Board Washington, D.C. 20555 Post Office Box 1771 San Antonio, Texas 78203

• Chase R. Stephens, Supervisor (20)

Docketing and Service Branch Mr. Perry G. Brittain U.S. Nuclear Regulatory Commission President Washington, D.C. 20555 Texas Utilities Generating Company 2001 Bryan Tower Mr. Jerome D. Saltzman Dallas, Texas 75201 Chief, Antitrust and Indemnity Group G.W. Oprea, Jr.

U.S. Nuclear Regulatory Commission Executive Vice President Washington, D.C. 20555 Houston Lighting & Power Company Post Office Box 1700 J. Irion Worsham, Esquire Houston, Texas 77001 Merlyn D. Sampels, Esquire Spencer C. Relyea, Esquire R.L. Hancock, Director Worsham, Forsyth & Sampels City of Austin Electric Utility 2001 Bryan Tower, Suite 2500 Post Office Box 1086 Dallas, Texas 75201 Austin, Texas 78767 Jon C. Wood, Esquire

• Joseph Gallo, Esquire r Matthews, Nowlin, Macfarlane Robert H. Loeffler, Esquire

& Barrett David M. Stahl, Esquire 1500 Alamo National Building Isham, Lincoln & Beale San Antonio, Texas 78205 1120 Connecticut Avenue, Suite 325 Washington, D.C. 20036  !

Charles G. Thrash, Jr., Esquire E.W. Barnett, Esquire Michael I. Miller, Esquire Theodore F. Weiss, Esquire James A. Carney, Esquire J. Gregory Copeland, Esquire Sarah Welling, Esquire Baker & Botts Martha E. Gibbs, Esquire 3000 One Shell Plaza Isham, Lincoln & Beale Houston, Texas 77002 One First National Plaza Suite 4200 R. Gordon Gooch, Esquire Chicago, Illinois 60603 Steven R. Hunsicker, Esquire Baker & Botts 1701 Pennsylvania Avenue Washington, D.C. 20006

.

• Kenneth M. Glazier, Esquire Don R. Butler, Esquire David A. Dopsovic, Esquire 211 East Seventh Street Frederick H. Parmenter, Esquire Austin, Texas 78701 Susan B. Cyphert, Esquire Nancy A. Luque, Esquire Mr. William C. Price Robert Fabrikant, Esquire Central Power & Light Company Energy Section Antitrust Division Post Office Box 2121 U.S. Department of Justice Corpus Christi, Texas 78403 P.O. Box 14141 Washington, D.C. 20044 Mr. G. Holman King West Texas Utilities Company Morgan Hunter, Esquire Post Office Box 841 Bill D. St. Clair, Esquire Abilene, Texas 79604 McGinnis, Lockridge & Kilgore Fifth Floor Jerry L. Harris, Esquire Texas State Bank Building Richard C. Balough, Esquire 900 Congress Avenue City of Austin Austin, Texas 78701 Post Office Box 1088 Austin, Texas 78767 W.S. Robson General Manager

• Joseph B. Knotts, Jr., Esquire South Texas Electric Cooperative, Nicholas S. Reynolds, Esquire Inc.

C. Dennis Ahearn, Esquire Route 6, Building 102 Debevoise & Liberman Victoria Regional Airport 1200 Seventeenth Street, N.W. Victoria, Texas 77901 Washington, D.C. 20036

• Robert C. McDiarmid, Esquire Don H. Davidson George Spiegel, Esquire City Manager Robert A. Jablon, Esquire City of Austin Marc R. Poirier, Esquire P.O. Box 1088 Spiegel & McDiarmid Austin, Texas 78767 2600 Virginia Avenue, N.W.

Suite 312 Jay Galt, Esquire Washington, D.C. 20037 Looney, Nichols, Johnson & Hays 219 Couch Drive Kevin B. Pratt Oklahoma City, Oklahoma 73102 Texas Attorney General's Office Post Office Box 12548 Knolant J. Plucknett Austin, Texas 78711 Executive Director Committee on Power for the South- William H. Burchette, Esquire west, Inc. Frederick H. Ritts, Esquire

, 5541 East Skelly Drive Law Offices of Northcutt Ely Tulsa, Oklahoma 74135 Watergate 600 Building Washington, D.C. 20036 John W. Davidson, Esquire Sawtell, Goode, Davidson & Tioili Tom W. Gregg, Esquire 1100 San Antonio Savings Building Post Office Box Drawer 1032 San Antonio, Texas 78205 San Angelo, Texas 76902 Douglas F. John, Escuire Leland F. Leatherman, Esquire McDermott, Will and Emery McMath, Leatherman & Wocds, P.A.

1101 Connecticut Avenue, N.W. 711 West Third Street Suite 1201 Little Rock, Arkansas 7*201 2

Washington, D.C. 20036

4 Paul W. Eaton, Jr., Esquire Hinkle, Cox, Eaton, Coffield & Hensley 600 Henkle Building Post Office Box 10 Roswell, New Mexico 88201 Robert M. Rader, Esquire Conner, Moore & Corber 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 W.N. Woolsey, Esquire Kleberg, Dyer, Redford & Weil 1030 Petroleum Tower Corpus Christi, Texas 78474 Donald M. Clements, Esquire Gulf States Utilities Company Post Office Box 2951 Beaumont, Texas 77704 Dick Terrell Brown, Esquire 800 Milam Building San Antonio, Texas 78205 i

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