ML19309B264
| ML19309B264 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, South Texas  |
| Issue date: | 03/20/1980 |
| From: | Blume M, Chanania F, Hodgdon A NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8004030347 | |
| Download: ML19309B264 (21) | |
Text
b-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Macter of
)
)
HOUSTON LIGHTING & POWER COMPANY
)
NRC Docket Nos. 50-498A PUBLIC SERVICE BOARD OF SAN ANTONIO )
50-499A CITY OF AUSTIN
)
CENTRAL POWER AND LIGHT COMPANY
)
(South Texas Project, Unit
)
Nos. 1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
NRC Docket Nos. 50-445A W
COMPANY, et al.
)
50-446A (Comanche Peak Steam Electric
)
D Station, Units 1 and 2)
)
d g,g UOMRO E
MAR 211980 * [5 Tc'ciS!rIN Branch 6
D 1
NRC STAFF OPPOSITION TO PETITIONS OF TEXAS UTILITIES GENERATING COMPANY, HOUSTON LIGHTING & POWER COMPANY, AND CENTRAL & SOUTH WEST CORPORATION FOR DIRECTED CERTIFICATION Joseph Rutberg Fredric D. Chanania Chief Counsel and Director Counsel for NRC Staff Antitrust Division Office of the Eocutive Legal Director Michael B. Blume Counsel for NRC Staff Ann P. Hodgdon Counsel for NRC Staff March 20,1980 1
8004030 %. 7
TABLE OF CONTENTS TABLE OF AUTHORITIES CITED..................... i i
I.
INTRODUCTION.........................
1
~
II. BACKGROUND..........................
2 III. CERTIFICATION IS NOT WARRANTED................
5 IV. THE LICENSING BOARD WAS CORRECT IN ITS MARCH 7TH ORDER....
9 V. CONCLUSION.......................... 12 1
1
l TABLE OF AUTHORITIES CITED I.
CASES:
Florida Power & Light Co. (St. Lucie Plant, Unit No. 2),
CLI-78-12, 7 NRC 939 (1978)....................
8 Kansas Gas and Electric Company (Wolf Creek Nuclear Generating Station, Unit No.1), ALAB-327, 3 NRC 408 (1976) 8 Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-353, 4 NRC 381 (1976) 5 Power Authority of the State of New York (Greene County Nuclear Power Plant), ALAB-439, 6 NRC 640 (1977) 5 Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Stations, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977)...............................5 ALAB-393, 5 NRC 767 (1977).....................
5 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271,1 NRC 478 (1975) 5 Puget Sound Power & Light Co., et al. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572 (Nov. 20,1979).........
5 Toledo Edison Companj (Davis-Besse Nuclear Power Station, Unit 1), ALAB-314, 3 NRC 98 (1976) 5 ALAB-300, 2 NRC 752, 769 (1975)..................
7 II. STATUTES AND REGULATIONS 10 CFR 52.714a...........................
5 5 2. 718 ( i )..........................
2 52.730(f)..........................
2 52.740 10 552.740-2.742.......................
3,10
$2.759 3,12 III. OTHER AUTHORITIES Federal Rules of Civil Procedure, Rule 26...........
1 0,1 1 Federal Rules of Evidence, Rule 408..............
1 0,1 1 Houston Lighting & Power Company's Second Set of Additional Responses to the Department of Justice's First Set of Interrogatories, No. 4 (Feb. 27,1980) 4 i
.g7 Joint Motion of D0J and the NRC Staff for Modification of Board's Order Regarding Protection of Settlement Discussions, (filed Feb. 28, 1980) 4 Licensing Board Order of April 16, 1979 2
Licensing Board Order of May 7, 19 7 9.................
2 Transcript of June 1,1979 Prehearing Conference, pages:
356-57
.,,,,,,.,,...................2,10 357................................
3 366-68.............................
2,5 368................................
3 Transcript of March 7,1980 Prehearing Conference, pages:
518-21
..............................10 603-05 1,6,9,10 608-10 1
621-23..............................
1 Waltz and Huston, The Rules of Evidence in Settlement, 5 Litigation 11 (1978) (attached hereto)
...............11 l
i l
11
UNITED STATES OF AMERICA NUCLEAR REGULATORY CO MISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
HOUSTON LIGHTING & POWER COMPANY NRC Docket Nos. 50-498A PUBLIC SERVICE BOARD OF SAN ANTONIO
)
50-499A CITY OF AUSTIN
)
CENTRAL POWER AND LIGHT COMPANY
)
(South Texas Project, Unit
)
Nos. I and 2)
)
TEXAS UTILITIES GENERATING
)
NRC Docket Nos. 50-445A COMPANY, et al.
)
50-446A (Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
NRC STAFF OPPOSITION TO PETITIONS OF TEXAS UTILITIES GENERATING COMPANY, HOUSTON LIGHTING & POWER COMPANY, AND CENTRAL & SOUTH WEST CORPORATION FOR DIRECTED CERTIFICATION I.
INTRODUCTION On March 13, 1980, Texas Utilities Generating Company (hereinafter "TUGC0")
petitioned this Appeal Board for directed certification and reversal of an Order issued by the Licensing Board at a pre-hearing conference in the above-captioned proceedings held on March 7,1980. That Order compelled production of certain documents which had been previously given a temporarily-privileged status.M The Licensing Board stayed the effectiveness of its Order until March 17, 1980, as certain parties indicated they would seek certification of the matter.U 1/
Transcript of March 7,1980 Prehearing Conference, at 603-05 (hereinafter "Tr.").
2f -
Id. at 608-10, 621-23.
l L
mm
i
- On March 13, 1980, the Appeal Board also granted TUGC0's request for a stay to continue until disposition of its certification petition, and ordered that any briefs supporting TUGC0's position be filed by close of business March 14,1980.
Briefs opposing TUGC0's petition were to be filed by March 20, 1980, and were to address the question of whether directed certification is warranted as well as the merits of the controversy.
On March 13, 1980, both Houston Lighting and Power Company (hereinafter "HL&P") and Central and South West Corporation (hereinafter "C&SW") filed petitions, each requesting directed certification, an interim stay pending disposition of certification, and reversal of the Licensing Board's Order directing production of documents.
The NRC Staff hereby files its response in opposition to the certification requests by TUGCO, HL&P, and C&SW. The Staff believes that certification is not warranted under the standards set forth in NRC decisions and the NRC Rules of Practice,10 CFR st 2.718(1),
- 2. 730( f).
In addition, the Staff considers the Licensing Board to be correct in ordering the production of the documents in question.
II.
BACKGROUND The March 7th Order of the Licensing Board compelled production of certain documents generated ostensibly in connection with settlement negotiations of certain parties to the above-captioned proceedings.
In its earlier Orders of April 16, May 7, and June 1,1979,E the Licensing Board had granted temporary protection for these documents, particularly in light of the
_3]
See June 1,1979 Prehearing Conference Transcript, at 356-57, 366-68.
l l
l l
. Commission's policy to encourage settlement,10 CFR 92.759.
However, the transcript of the June 1,1979, prehearing conference makes it clear that the Licensing Board, in its " settlement privilege" rulings, was not carving out a permanent exception to the broad discovery rights of other parties under the NRC's Rules of Practice.O The Board specifically indicated that the
" settlement privilege" was of limited durationN and that documents would be discoverable if they became material.O After this last ruling on June 1, 1979 on the " settlement privilege," the Staff and the Department of Justice (hereinafter "D0J") proceeded with extensive discovery in the above-captioned proceedings, which were consolidated for discovery purposes.
During the course of discovery, the Staff and D0J detennined that there were, in all likelihood, certain studies or other documents which contained factual data relating to the economic and engineering feasibility of inter-connections between the ERCOT-TIS electric utility systems (intrastate Texas systems) and other electric utilities operating in interstate commerce (including, among others, Southwest Power Pool utilities). During various depositions, the existence of some of these documents became known through the Staff's and the Department's questions related to factual and technical y
10 CFR 99 2.740-2.742.
y June 1,1979 Prehearing Conference Transcript, at 357.
y
_Id. at 368.
. 1 data.7/ " Settlement privilege" objections were raised against those questions, and discovery of the answers and of the documents themselves was cut off.
Accordingly, on February 28, 1980, the Staff and the Department of Justice moved the Licensing Board for an order compelling discovery of " documents which assess the technical feasibility and/or cost of electrical intercon-nections between TIS /ERCOT and SWPP.'O As was made clear in the Joint Motion filed by the Staff and D0J, this was not an attempt to discover the negotiating postures of the parties. The Staff is not interested in con-fidential infomation on the status of settlement efforts nor the possible compromises of any party. This has been the overriding concern of opposing parties, however, as evidenced by a colloquy at the prehearing conference of l
_7f See deposition transcript of D. Eugene Simmons, at 316-17 (Oct.17, 1979); deposition transcript of Alfred E. Naylor, at 21-22 (Oct.11, 1979); deposition transcript of Kemit Williams, at 33-34 (Sept. 26, 1979); deposition transcript of J. F. Meyer, Jr., at 82-83, 128-29 (Sept. 13, 1979). These transcript references are attached to the Joint Motion of D0J and the NRC Staff for Modification of Board's Order Regarding Protection of Settlement Discussions, filed with Licensing Board. Any studies conducted by Glenn Stagg, of Stagg Systems, Inc.,
were also claimed as being not subject to discovery until February,1980, when HL&P indicated, for the first time, that it would t
rely on those studies as a basis for justifying its intrastate only l
Dolicies and practices. See HL&P's Second Set of Additional Responses l
to the Department of Justice's First Set of Inte:-rogatories, No. 4 (Feb. 27,1980).
8/
Joint Motion of D0J and the NRC Staff for Modification of Board's Order Regarding Protection of Settlement Discussions and for an Order to Compel Production of Certain Documents and Testimony (hereinafter " Joint Motion"),
at 6,17 (Feb. 28,1980).
. June 1,1979 where " memoranda by attorneys" were discussed by TUGC0 counsel.9/
Rather, in order to obtain complete discovery which would include the most recent technical studies regarding economic and engineering feasibility of interconnections, the Staff and 00J found it necessary to obtain the technical studies and engineering data (including cost data) from the only available source, the parties themselves. To this point, the Staff and the Department of Justice have not been involved in any way with the settlement discussions in which these technical studies and technical data were generated.
III. CERTIFICATION IS NOT WARRANTED The general NRC rule is to prohibit interlocutory appeals, except for denials of intervention. 10 CFR sl2.714a, 2.718(1), 2.730(f); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-271,1 NRC 478, 482-83 (1975). However, certification has been granted in certain NRC cases:
(1) where the ruling below threatens the party adversely affected by it with "imediate and serious irreparable impact which, as a practical matter, could not be alleviated by later appeal,"10f or (2) where the ruling below affects the basic structure of the proceeding "in a pervasive or unusuni manner."E Puget Sound Power & Light Company et al. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572 (Nov. 20,1979).
9f June 1,1979 Prehearing Conference Transcript, at 356-67.
10/ Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-405, 5 NRC 1190,1192 (1977).
11/ Id. See also, Power Authority of the State of New York (Greene County l
huclear Power Plant), ALAB-439, 6 NRC 640 (1977); Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2),
ALAB-393, 5 NRC 767, 768 (1977); Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 & 2), ALAB-353, 4 NRC 381 (1976); Toledo Edgn (Davis-Besse Nuclear Powar Station, Unit 1), ALAB-314, n
. It is the Staff's position that certification is not warranted under the present circumstances. The ruling of the Licensing Board is related to production of certain documents as part of the broad discovery permitted in NRC proceedings. The Board's ruling enhances the possibility of full pre-sentations on the issues in controversy, notably the business justification defense expected to be raised by TUGC0 and HL&P based on their assertions of the technical and economic infeasibility of interconnections between intra-state Texas utilities and other interstate utilities. The expected relevance of such documents is evident from the Board's Order.b The limited scope of the documents ordered to be produced cannot be realis-tically said to have a dramatic, adverse effect upon the parties insofar as their rights at hearing are concerned.
It is the Staff's understanding that these studies and technical data are factual in nature, and most likely represent the in-house engineering and costing work done by the engineers and planning personnel at the respective utilities. These documents are important because these studies represent the latest studies of the engi-neering and economic factors relating to potential interstate interconnections.
The utilities would be reasonably expected to rely upon these studies, in most circumstances, for their own evaluation of the feasibility of interstate l
interconnections and operatioes. On the other hand, these documents are not expected to reveal the positions taken by parties at settlement, nor any l
offers of compromise made. As such, they do not contain matters which would irreparably impact the ability of the petitioners to obtain a full and fair hearing before the Board.
g Tr. at 603-05.
. It is also evident that the production of these documents will not affect the basic structure of the proceeding in any way. At this early stage, it remains unclear as to whether these studies will be admitted into evidence, or indeed, whether any party would seek to admit them.
The Appeal Board made it clear in Toledo Edison Company, et al. (Davis-Besse Nuclear Power Station) that discovery orders will rarely give cause for that Board to 13/
exercise its certification powers.
Although the principal basis for appeal in Toledo Edison differed from the situation here,b the Appeal Board made it clear that "the contention that the denial of a claim of privilege (much less its grant) enjoys a special status deserving of interlocutory review has been expressly rejected by the SupremeCourt."E The Staff does not believe that the petitioners have presented any reason to depart from these past decisions denying certification under such circum-stances. This is particulary true where, from the outset of its rulings, the Licensing Board indicated that the settlement privilege was not ar.
absolute privilege of infinite duration.16/ In addition, the discovery J3/ ALAB-300, 2 NRC 752, 769 (1975).
14f The interlocutory appeal in Toledo Edison involved the propriety of the agreement among the parties to submit discovery matters relating to claims of privilege for certain documents to a Special Ma ster.
JS/ 2NRCat768-69(footnoteomitted).
J6/ See note 5. supra.
y
- inhibitions on the Staff flowing from the settlement privilege have made it more difficult, if not impossible, for the Staff to meet its obligations of insuring that the record will be complete. --~17/
The exclusion of the Staff and the Department of Justice from discovery of these documents does not alter the parties' ability to settle the case; it merely allows those parties access to the knowledge contained in the latest technical and econo-mic studies which other parties to the settlement efforts have had for some time.
In addition, there is no reason to believe that the petitioners will be hindered in their settlement efforts by the Board's Order since the studies or compilations of technical and costing data are presumably " neutral" in character.
Petitioners cite Kansas Gas and Electric Company (Wolf Creek Nuclear Generating Station, Unit No.1), ALAG-327, 3 NRC 408 (1976) as stiport, but the Staff believes the decision of the Appeal Board in that case is inapposite. The attempt at certification there involved a Licensing Board's denial of a protective order sought by the applicant to limit disclosure of a fuel contract pursuant to its agreement with Westinghouse Electric Corporation, a non-party. The Appeal Board in Wolf Creek directed certification of the discovery order for several reasons, only one of which was the unlimited 18/
disclosure of the documents involved.
11/ Florida Power & Light Company (St. Lucie Plant, Unit No. 2), CLI-78-12, 7 NRC 939, 949 (1978).
18/ The Appeal Board was also concerned with correctness of the legal standards used by the Licensing Board, the " partially uncharted waters" surrounding determination of the proper legal standards, and the initial insufficiency of the showing of injury mada by a Westinghouse affidavit.
3 NRC at 411, 413-18.
' 1 That is not the case here; the transcript of the March 7 prehearing con-ference shows clearly that disclosure of the documents will be extremely limited under a protective order required by the Board.E IV. THE LICENSING BOARD WAS CORRECT IN ITS MARCH 7th ORDER The Licensing Board's ruling on March 7 was consistent with the caveats expressed on June 1, 1979 on the same issue. The settlement privilege was qualified - it was a temi,orary shield.2_0/ It is the Staff's position that given the qualified nature of the settlement privilege and the demonstrated need for discovery of these studies and technical data, the Licensing Board's Order should be affirmed.
TUGC0 and C&SW argue that the Appeal Board should grant review and reverse the Licensing Board in this case because its Order is in conflict with Florida Power and Light Company (St. Lucie Plant, l' nit No. 2), LBP-79-4, 9 NRC164(1979).
In St. Lucie, the Licensing Board was faced with a request for "all documents pertaining to settlement negotiations in [St. Lucie] and in the South Dade proceeding. E Here, the Staff and the Department of Justice have sought documents in a much more limited fashion, i.e., for the specific purpose of being able to assess the most up-to-date technical infomation regarding a central issue in these proceedings--the business 1_9/ Tr. at 604-05.
9 20/ Tr. at 510, 584, 589-90, 603-06.
2J1f. 9 NRC 164,183 (emphasis added).
{.
j g-justification defense related to the infeasibility of interconnections between ERCOT/ TIS and the Southwest Power Pool. The breadth of the concerns of the Licensing Board in St. Lucie contrast sharply to the situation here.
l as is evident when the St. Lucie Board cautioned:
"but the clarification does not justify any unrestrained excursion into applicant's settlement docueents. 'E The St. Lucie decision and the Board's March 7th Order here do raise the question of whether the standards for admissibility of evidence under Federal Rules of Evidence 408 (hereinaf ter " Rule 408") limit discovery otherwise available under the NRC Rules of Practice,10 CFR 592.740 g seq., which are patterned af ter the Federal Rules of Civil Procedure (hereinafter "FRCP").E The Staff has not found any dispositive authority instructive on the question of whether and how Rule 408 affects discovery otherwise available under FRCP 26 and the corollary provisions in the NRC Rules of Practice,10 CFR 52.740.
Indeed, the third sentence of Rule 408 raads: [t]his rule does not require the exclusion of any evidence otherwise discoverable merely because it is pre-i sented in the course of compromise negotiations." Concomitantly, the final sentence of 10 CFR 92.740(a)(1) and FRCP 26(b)(1) states: "[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the 22/ jd. at 184.
23/ Transcript of June 1, 1979 prehearing conference, at 356-57.
Transcript of March 7, 1980 prehearing conference, at 518-21, 603-04.
. l
\\
discovery of admissible evidence." Taken together, one reasonable inter-pretation is that Rule 408 should not be read as limiting discovery in NRC proceedings in any manner.
The Waltz and Huston article, cited by TUGCO,b does provide some commen-tary on the interplay of Rule 408 and the Federal Rules of Civil Procedure:
Comments with a factual content, made during compromise nego-tiations, are not usable, as such, to prove those facts.
- However, those same facts can still be proved by any legitimate alternative means open to opposing counsel. Like this: At a pretrial settle-ment meeting a party defendant says, "We've searched our records and it appears that we did own the scaffold that collapsed, instead of just leasing it, and so we're going to sweeten our settlement offer a little bit." This statement is not itself admissible to establish that the party owned the scaffold; Rule 408 prohibits it. On the other hand, opposing counsel is free to employ Fed.
R. Civ. P. 34 discovery to obtain the records mentioned and they will be independently admissible to establish the fact of owner-ship.
Cf. Oliver v. Committee for the Re-Election of the President.
66 F.R.D. 553 (D.D.C. 1975). The defendant could not immunize its business records or their factual content from disccvery or admissi-bility at trial by the expedient of a seemingly gpual reference to them in the midst of a bargaining conference.-
The Staff, in this vein, agrees with TUGCO's statement that the question before the Licensing Board was not whether evidence of sc.ttlement negotia-tions should be admittad but whether it should alin discovery bf such 24/ Waltz and Huston, "The Rules of Evidence in Settlement," 5 Litigation 11 (1978), cited by TUGC0 in its Petition, at 16, nn.1-2.
The article, for the convenience of the Appeal Board, is attached hereto.
_2_5/ TUGC0 Petition, at 17.
i evidence.E TUGCO, however, goes too far in reading the Commission's settlement policy embodied in 10 CFR 92.759 to provide justification for interpreting Rule 408 as a limitation on discovery in NRC proceedings.
IV.
CONCLUSION For the reasons stated above, the NRC Staff respectfully requests that this Appeal Board deny the petitions for directed certification filed by TUGCO, HL&P, and C&SW. As indicated above, the Staff believes that this matter is not appropriate for directed certification under the NRC Rules of Practice and the standards set forth in NRC decisions, and further contends that the Licensing Board was correct in its Order of March 7, 1980.
Respectfully submitted, b
. &AuY +_'
Joseph Rutberg Fredric D. Chanania Chief Counsel and Director Counsel for NRC Staff Antitrust Division Office of the Executive Legal f
Director g
Michael B. Blcme Counsel for NRC Staff hec c:
am w
Ann P. Hodgdon t
Counsel for NRC Staff Dated at Bethesda, Maryland this 20th day of March, 1980.
i
_2_6/ Id_. at 15.
6
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o pick some-as S a!xsut uti or
- re is by Jon R. Waltz and J. Patrick Iluston "d " '-
- talk-udge When the editor of thh journal askal us to omtribute an oer, powible lawsuit. Conteming ourwivn with the ad-
.o get article focusing on the rules of oidence in settlement monitions exprewed two paragraphs back, we will nar-
.a rties negotiations, the wnior autimr said. "llut that would be rim our focus to thow few rules that directly affect wttle-
.hed.
allthe rules of eudence, ciuplot with a giud many rules ment negotiations. And ue will Emit o r ehn. by and dence of procedure!" And we think all esperienced litigators large, to the Federal Itu!es of Esidence inay mould agree witn us. As Phiip J. Ilermann of the Ohio The Federal Rules of Evidence contai.. only one prmi-
,non.
Bar pointed out in his comne.n-wnw twk on wulement sinn with specilie and sigriticant p;r;inence to settlement
' set-techniques. El rn v Si t oi su m 'linmnat Lt u a ua negotiatiom. That rule. of oiurse. h m wSich gmerns ence sviii(l%5). the key to such neentiatiom is Icerage. And the adminibility in later htigation n: talk that took ph'ee some-the negotiator cannot awew his loerate. let alone apply during wulement meetings. Ru:e ".m stirred up a good "ne-it, withou: tirst determining uhat oidence our rutes will deal of conirmersy.a i: mmed f rom the Sup:."le Courti
. ants or will not let him h.ne, and w hat they will or will not let Adsisory Committee through bo:h flouws of the Ce"-
right his adversary hate.
grew. It is a lairly o.mplicated rule and it ei ntains ent and lhis meam th. : no lawyer should embark upon wille-netable doiation hom past judicial treatment of this stut.
Inent talks withoet first conducting enoueh imotigation kind of oidence. A quick look at Rute -!UA cemmon law Ithe to know the tacts well. It.dso m;am that no lawyer backcround and its legislathe histo y will help east its
- wt-should get into sen!ement negotiations without lint av prmhium in sharp rehe:.
' trial sewing the impact et the ruin ot eudence on these taen.
Consistenth Ru!cd eun-Will the endentiary rules let him prme adsanta.:cous 1
argu-facts at trial? Will they equip him to block the disaihan.
Courts at common law comhten:l> ruled that of fers to a p-tageous ones?
wttle a dnputed claim by compromiw were i:mdmiwible n.be Yc.u see how it gon: At a propitious moment during a when ollered at a later trial to substantiate the plaintilli con-pretrial omference, coumel prewn what he takes to be claim. C. % Conm A. H noiaxm or nu ! ew ot Est du r-an important oidentiary leer. ("We can shim at tri.d.
on vi 4 27 at fit 012d ed. IC25 Incomhtency set i't.
light by his report, that the State Fite Marshal determined homever, when coura comidered the adminibihty et 1
that this gas esphnion was cauwd by owner negli.
subsidiary or odlateral comersations occuning during gence.") Not como hh aihersary% contident awcreion wtilement talks. The rationale relied upon by a court in that this evidense.oen thouch pie ented in the mmt un.
escludine oidence of the actual compromiw off er mual-and pressive celluloid emered spir.d Sinder, wouhl be inade ly dictated in approach to ind; pendent statemenS nt anyer missible men under l'ederal Rule of Inidence NDtNh ).
f act accompanying the oller. Mmt court excluded ol:er hi;g if this is follouot by the pietrial judge \\ agreement, oidence on a someomo strained theory of oidentiary counsel feeh the loer breaking oil cleanly in his hand.
reinance. Others adopted theorin of amtract or prhi-The few thomand wonh allocated to m here foreclow lege, or concocted a stew containing all three theoretical
.n
.u discussion of cery evidence ruleN potential impact on ingredienb.
Prior to Rule 40A advent. all federal and mmt state
. ee w x. tr I,: a i.s.,,, it.n,.s 1.r,n s..r it w,ti,.n.n t'n.,<u..,.., i.,.
n,uris escluded of few of onnp omiw as irre'evant to the m we,6 n,crn i an., un A 4...t.., I.n.. it. 4.n,,,,4..rni n u men.."
'_C substantive inun: such olfers. Ihey said, implied merely h,nas m. ru. lcm r..vo.! n Ch.n'l* ru'" ", the.% n..n un I o.len. e.
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.4r Los A,, gel. s ren. I.o. !.. /. in.t 11.!!
~lhe result was dhtgrert when an oiler os cotapromiv
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was estcnded before any dhpute had hardened. E.r..
caw is an early one. Stranahan v. East Ha.ldar.:
l Per:in>Ai v. Chevreur Chemical Cunnpany.503 Y.2d 654 Conn. 50' (In.1nh n also Edward YJn. fru ri (7th Cir.1974h Arnol.! r. 'Owrin. 78 F.2d 495 (4th Cir.
Cameron Iron WorA s. luc. 25n F.2d 933 (5th Cir.14 j*
1935). li the drher of a vehicle that struck and injured a
,Counct r. Alic higan 1(i. ope Line Co. 15 Wis. 2d
- i pedestrian dropped b the sictim's hmpital roon, on the 113 N.W.2d 131 1+-t.
3
~3 dav af ter the accident to of fer payment of hk medical This jolieubawit %:r ion of the ewhnionary
]
bil'k. his words would riw to haunt him at a subwquent sounded ser3 nn.ch ht e a priulege. albeit a narrim a 3
trial since they preceded any negotiations to dispow of an than some. A few te h ral o>urts were esplicit abc
".q actual dhpute.
othen simply indulgel in the language of prhilege h
out apphine a labch s:ill others e mtusingly used p.g DifDeult to Separate i,. n.gini.h.p oile imoking ibe relevance con e, Once a dispute arme. the only true of fer of compro-As we base already suggesied, a crucial llaw in i-mise was "an olTer to pay an amount conditioned on the the relevance and the contract theories at e imnum i
denial of liabilitv." Factor v. C.I.R., 261 F.2d 100.128 was that thev required courts to draw a diuinctio:.
.il (9th Cir. 1960i. rcri. Jenied. 364 U.S. 933 (1%1).
tween the actual otter and the words or condut: -
.j$
(That's not w hat you haw w hen one side concedes liabil-rounding it. One ten. Dean Wigmore\\. emphasirec
,j ity for an undisputed amount but nonethe!cw tries, on a form of the proterred statement. 4 L Wumoio. Em -
sort of reverw nuisance basis, to chiwi dow n the ar munt is Tunt s u Cmnim Lsu s 10nl at 411Chadbourne R 3
to be paid.) If unqualified, independent fact statements 1972). Wignmre thought the speakerN intention was S
surruunded the offer, they would not be shicided at a key and the form of his statement was the best ind.e.
later trial if the parties' settlement efforts broke dow n, ol'that intent. If the otteror did not intend his laet u.
1 E.g.. Ifroun r. Hyslop.153 Neb. 669.'45 N.W.2d 743 ment to be an awertion of his actual beliet about
,m (1951). Needlew to say. it otten was ditticult to eparate tacts. he would phraw it hspothetically or conditio::.
ly the collateral cvidence, which was adminible from the
(" Fred. we don't beliese it tor a minute but just ter jq of fer of compromiw itwlf. which was inadmiwible; they sake of argument let's awt.me that we've got a deke-46' were simply too intertuined to be pulled neatly apart.
product here. What wouhl you say to $150.000?")
r A teu courts. first in England and then here. escimled M
comprom!w olfers on a comract theory. E.g.. White v.
Assertiort of Belie!
'd Old Do,n/nion S.S. Co.. 102 N.Y. 660. 6 N.li. 2h'l Conversels, it th.- diferor intended his covament as
- M (Ibh6h larA3nn t C/ofiton. 66 Ala. 29 ( t hh0h see Hell.
awertion of'hehef rtl at is. as an admiwinn-he wi iQ Admissions Arising Out of Cmnpromise-Are They fr-probably speak in esplicit. m ' onditianal terms.
'd rr/crant? 31 Ti x L. Nix. 239 (1953). Anything said or Dean Wigmore thbaght. ("Let * ! ace it. Fred. we pu:
- i. Q donc dming campromise negotiations was later admis-a deteetne cear ba on this motorbike and we i-
-@M sible un!ew it had bees. accompamed by an esprew or we're going 'to base to pay f or it.") L'nder Wig"c.
presumed "without prejndice" rewnation. ~l he olier teu. only unconditional collateral awertiom wer.
. Ei itselt was presumed to hase been made wnhout prejudice minible if wulement negotiations aborted. ~1 htn.
.2,48 to tuture denials of liability but the collateral comersa.
sers tint remark to Fred would not be adminible tion was not. It an ot!er of compromise was not accepted.
the second comment. an unquahtied adminion..i 3.$
the counts teasoned. there was no contract between the he,
-E parties and the detenilantN of fer was stripped of its eu.
N dentiary impact. but the force of unqualitied tact admio
,._s k
sions tintered on.
Y}'
i Q.
The contract theory was not popular in the federal i
y euurt. and was rejected out of hand by the Third Circuit c ' /,,
~gk in an influential decision. Out/vok Hotel Co. v. St. John.
l=N 287 F.115 (3d Cir.1923).
. v. 0 N.
11 the contract theory was c.scessiwly etmeeptuali tie.
7)
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the relevance theory was excessiwly unreahstie. The ofler
,3 of 5500.00 in a disputed lausuit with a million dollar
-d prayer is either a nuisance otter aimed at asoiding emtly
[4. 4.,
-+ i.
2.j 4'3.;'.Q^*.[Q,'J$%-y y
combat or a bad case ut u histling in the dark. An oller of
3
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$500.000 in the same suit is a delinite straw in the wihd.
I
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There were both law wn and judges u ho detected that so d).}
substantial an ofter'of compromi e retlected a wnw of 4.g,(ff/f, Qt -
./ e
. /,
'k pewimism by def endant on the liabihty inue. Pewimism, C'
.,y of that magnitude was surely probatise.
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[0-gf[%.. i. %e:'; (k ig Faced with two 11 awed theories. some courts laced np 2
y.
to realities and trankly excluded of fer of compromiw W
- B V;
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becauw to do otheruiw wouhl inhiHt free diwourw
<.i during bargaining and trustrate the public policy tasor-ing the extrajudicial dispmition el disputes. The leading 11" ;)i?'
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! - A second test tried to lieetn on the relationship of the tention of three gmernment agencies. Ilhh phase of r.
P proferred collateral esidence and the oller of compro.
Rule 403% legislatise hhtory is dheuwed in L Wuti.
th l mise or the subject matter of the discuwinns. Sr. c.r..
Tm Ni w Fein nu in ii un thnu u i. As Aut un 33 35 84.i ' M WicI v. Jhdhrook 37 18.S. h4 (IM3Mh. Cooper v.
(2d ed.1975h!'l hey warned that Rule 405 uould permit Broirn.12ti F.2d 874 t.1d Cir.19421. 'l he clowr. the more parties to immunife inti rmation ewential to prming de intimately intertwined the relanonship, the more likely it siolations of law by the simple tactic of presentine the in-was that the collateral esidence would be hehl inadmh.
tormation in the course of comprornhe negotiations. ~l he oc it; sible at trial. 't he mmt commonh eiwountered htums.
liqual Employment Opi ortumty Cormnwinn was con-h-
8 although hardly a stry helptut one, was whether the pro-cerned primarily with presening the admiwibility of fae. -
i-ferred words had been "so hn theianwe" of aimpronme.
tual material. documenh. compilations and the hke that th Too Breathieuh
" '"'" ' i" I '" P '"' " " ' i " '" ' i" " '
The subeimimittee responded by splitting collateral It has been said, only sligh 13 too breathlewly, that esidence into "admiwinns of liability or opinions" and WigmoreN test sietimited the unwphhticated. w ho "laen." making only "admiwinns of liabdity or opin-might fail to tack endlew amditions and diwlaimers "n-ions" inadmiwible at trial. The suboimmittee ahn re-to their settlement o!! cts. (t he rhks t med by inarttul worded the last sentence of the ru!c. espandmg "esi-ie i
word seicetion are esemplitied m l' cop /c c.s ret, l)crort-dence" to " evidence of conduct or stateme.,a made in mern roil'ubhc lt*or k s v.14> ruer. Eh Cul. 2d 257. 373 s-P.2d slo. 2.1 Cal. Rptr. 582 11962). in which the state-
.e r
ment. "l his amount h acompromhe tigure based on the market value of the parcel as set out m the ahine men.
{gg[jpgpg [hp pgjp {hg{
a tiened suit." was held to be an unqualified and theretiire recehable adnuwton of the parcelN salue.)The relation.
pap {jeS CD11}d prOlPCl ship or "in f urtherance" test was m impredietable it lett
{e{p [3(Q g[3{m}}ejl{g everyone sulneralde.1 hese dilliculties made the prith lege theory look good: since collateral fact awertions (p()))1 ({}I ((TP (($G, could be as hurtf ul.n proot of an outright of fer when m-troduced later, the policy based privilege theory e.s. cluded the collater.d esidence along uith the oller. 't he workability of thn approach bdrs to esplain the form compromhe negotiationv" In a note to the remed rule ghen to I eder.d Rule et thidence -!n> by the U.S. Sn-the subcomruittee added that it intended to mntinue the rule that parties couhl protect their fact statemenn Itum preme Com N.bh hory Conunittee and ultimately b) the Congrew. future use by putting them hypothetical ly or condition-ally. lThe subcomnutteeN notes are anoted in S. S u v On January 30.10 6. Chief Justice liarl Warten ap-pointed an thhony Comminee on ibe Ru:es of 1%idence nem. & K. Ri um s Fi m a u Rt u s ne i s nw i Nim u 174 (2d ed.1977).} and bs e.n h luno the Committee completed a Prelimi-nary Draf t Et I ropms d Rules of thidence her the United Senate Concern 8 States Dhou.i Crum and 51achnates. I he kh hory The Sena:e was concerned that the !!auseN exception Comminee was din. untied with she comm"n law iuie for "laen" umild be read to pemm the endentiary that eseluk.1 otten et compromne on a then:y of it-receipt of" factual adminions" and tFus discourage set-relesance. It pretened to base the rule on the public tiement discuwinn. The SenateN ini:ial amerdn ent was policy f.nmn e the mmpromhe and settlement of meritu-rious dhrmm m other wouh. it opted for the prhilege to restore the Supreme CourtN senion, making condue: and statement occurrine during compremhe necotia-approach. Ahnon Comnuttee Noie to Court. Rule 403, tions inadmhsible. The Senate then inserted a sentence 50 F.R.D.19. 225223 (1972). I Conshtent with in pri ilege approach, the Athimry following the second se nence of the Supreme Cour:N senion of the rule. 'Ihat sentence pnnides that Rule 403 Conunittee fashioned a rule that made collateral esi-does not require the escluVon of any esidence "mherw he dence as well as etten of compromhe. inadminible to discoverable merely because it h presented in the course i prme liability lor, or the amount of, a dhputed claim. of compromise negmiations." The Senate Comminee One can see Rule 4th as it appeared in the preliminary Reporn esplains that this sentence was added because i draft by whhdrawine the third sentence and the word "a party should not be able to immunire f rom admh- "aho." from the lourth sentence of the presem Rule 4DN. sibility document othernne dhe nerable merely by ot-Rule 405 w n mahanced atter three remions of the u!es fering them in compromhe negotiation." Si sait. a by the Nhimry Conmnitee, the serunny of the Supreme Ri nmr No 931277 at 10. Court. and the tint senes of hearings belbre the Sub-The Senate's formulation of the rule was accepted by committee on Criminal Jintice of the llouse Conunittee the flouse Senate Conference Committee and was en-on the Jusheiary. It went almmt completely utmoticed in acted into law. those hearings and the Subcommittee adopted intact the Although seemingly unstructured. Rule 405 as enacted S.upreme CouriN senion of Rule 40s in in Committee has four emnponenh. conshting of two basic esdusion-Print of June 28. IC3. When that piint was circulated ary rules and two c.seeptions in thenn t lia rule rendering among bench.md bar. Rule 4ns drew the concerned at-compromise ollen inadmiwib'e on the meritv. (2) a rule l W 3 s + g.' ~ Mh gdj% ~ h. w.I ' 6 a, 1 . 6. p t,. f.. - .,..4' ..*-(.: sM .,-rC...e
- M'
q rendering independent or collateral taet evidence in.ul-of the oller was unall in relation to the site el t!. 1 miwible on the ments: Os the "otherwise dncoverable' dannnnn. And surely the prn dece theory on uh!J ,] ueeption to the precedine iwo esclusionary rulcu and present federal rule is based shouhl esclude all om". b (4) the " collateral me" ewcption. mise otten, be thes laree or small. J The b.nie rule e.se!udine otters of compnimise is trig-Hule 40hi requiremtni of a sahiable comider.c 72 gered in a tiseatage sapience, it rum this way: which does owe a debt to the common la% perpe:. 9 (1) An attempt. iner timely objection to introduce merworked iwnes of saluable to w hom and by w ha: - j esidence of dard? Ilim wduable is the otter, m a def amation ca -j (2) a turnishing offer to !urnish or promise to tut-a public apology? [For an interesting esample, u. ] nish, or an acceptance or pnimise or otter to Nmu 10unsnow wun.wi M :.ae. no 15.*ltil ll"~ accept Neither the federal rule not its legislatise histor. O (3) a valuable consideration in compromise much help in cisine content to a sesine statutory ph-7 (4) of a claim the validity or amount of which is The RuleN r. terence to a dispute about the salid:- .3 disputed. anmunt of a claim marks its tirst significant depa ,.] (5) for the purpose of pnning either lia, fo r <. trom the conunon law. Ai common law. it during prc g claim or the amount of the c' aim. or boih. or to phases 'iabihty were omeeded and compromise neg prme the imalidity of the el tim of its amount. tions concerned only the anmunt of the low, an ot: is Timely Objection ""* P'"""'" " "'. "d"""ih'e "' i"I '" cu a bhsh he but not as pnmi of the amount of the low. L,nder ;
- y The prisileges of Rule 406 are counsers to imoke or to 40h no weh distinction is draw n
- Ihe of fer of oimpre-81 waise. Unlew timely objection to a queuion calling for is inadmiwible to pnne either habdits or the amo
, 7., prohibi:cd esidence is interpmed, the rule wili not oime that liabilin. retardlew of the scope bf ameceden:, 9 into play. See Nah/.. Making the Rcrord. in D. promise netotiaIio:n. This is conuuent uith the prm i ~i Lonu u. J. K,u1 w A: J. W.urr/ C.su s,wo M m inu.s m theory on ahich Rule 40h is gr"unded. h.. Ettoi u i. 23 25 (3d ed.1976). ".-j Rule 408 makes u. 5 : car that both the defendant s otter Obdous Departure , }'y of compromise and the plaintitti acceptance of that of. The second sentence of Rt a contains its me-ter are inadmiwible on the merits at a triallollowing tail-sions dep.u ture trom the con law:"thidence : ...L ure to consummate the settlement. The rule plainly in-duet or uatemenn made in imise necotia:t 3 i:1 cludes the mere oiler to furnish a settlement considera-liken ne not admmible." Ci..ntent uith the pr; 'E tion as well as the more formalistic " promise" to do so, theors undalyine n. Rule 4m thus pnwides that r. j in other words. the msetics of conoactual terminoiogy otters of compromne but also surroundme comers.. "h are not crucial. For a pre-rules decision to this eticet see or conduct during compro uise barcamine are no-L Factor v. C.I.R. 2h1 F.2d luo 125 eith Cir.19no). ecrt. admnuble on the merns o.:n it thes would oun:i:. . -3 denied. 354 U.S. 433 !Wd ). dependem or o.llataat oidence under common L ~'j By esplicitly including "turnishine" as acil as an "ot-tiom ol seloante. ..~6 ter to furnish." the rule pro;ects the party who furnishes 'Ihe second sentence of Rule Jos presena an : W ine dralung punle. An olier et compromhe h ir. ,a uble u. lone as a "dnpuie" h.n arnen beo.cen :. M EC rU}O I)TOlOClS l}1e o n ly d..'"h" '"" ' " " * '"'"" "."u n""'d""' " ".m m d ' h " ' d F g compnunise neco:ian hase o I)Rr!V. W}lO [UrniShCS R
- Y "" " "'h'P "' #
"I"'" I"" "" h') I"e"d d
- compnnnise neconations/ ihis rancs a m SCilleDient cOnsicleratiOn h e">" co""'""i "" ~ "~"" *"ni co"d ".et
" e sible. lara. when they accomp.:m a bnnninne, ',5 bei. Ore ne"Otlal10nS be*Hl.
- " """
- P
- d " " " " d " P "
i h " d" ". compromne negotiatium base 1 cen.'#M 'e' h" .: :s e b mitiated. In Tire Deaten v. Go nlycar lire and Rubber Corr 9] F.2d 1365 (10th Cir.19
- 8. the court beh! that.
a settlement comideration upon learning of a claim but party dne.nened anodia widi line.uion. businew. q before compromise neentiatiom ha.e begun. municadom had reached a clear cut ott point. a. ..j The broadly worded respiiremem of 'a saluable con. promise necotianom had begun. C.o pare.k. {6 sideration" both duplicates and desiates trom the com-Schr. Com 'n r. louche Ron a Co., 43s F. Supp 'y mon law. The requirement that the comideration be (S.D.N.Y.19"). " valuable"llies in the lace of both the relevance and the This portion of Rule 40h speaks. in terna. or .- G privilege theories of inadminibility. Offers to compro-statemenn and conduct. This made a few gmern mise for relatisely small sums--nuisance ollers, which agencies nenous, probably escessisely so. They y$ hase some value but not much-were precisely the ones dered whether the drafteri formulation might ir which the relevance theory was meant to proteet: nen rather than facilitate speedy settlement became p. y .I the Supreme Cour N Adsisory Committee agreed that dealing with the acenues would be reluctani to p: p the re'oanee theory had some salidity when the amount tactual information at preliminary meetings. a:
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&l ,5 Mu.; O +gyhe w .. g_ - _ :_ _ ~~-- ~ - ~ -_ -m.-- .v - s ...~:. ,._..,;. ~... w.myy a.c K
voluntardy, preferrine to dela3 unal comptonnse neco-away in another. Wh.it it I oih dow n to h thic Comments - tiatiotA bec.m in the hope that tha would citare an eu-with a f actual omtent, made durine comprombe neen. dentiary' inunumiu.in eu t u si.. nary, wash, so to tiations. are not usable, as such. to rime thme f acts. speak-lor their ilata. 'llm conectn led to a retrograde lioneser thme ume facts c m still be prmed by any i mmement in the llome 01 Representathes. legitimate alternathe means open to oppmine counsel. In sieu of the fears espiewed b agency witnewes. a 1.ike thh: At a pretrial settlement meeting a party delen. 3 subcommittee of the llouw ( ommittee on the Judiciary dant says. "Weie searched our records and it appears a amended Rule tt
- u th.it "admiwions et liability or that ne did ow n the scattold that c. !!. psed, ins: cad ot opinions" enunuated sluring set tiement neentiati.ms just ! casing it, and so we're e ing to suceten our settle.
could remain inathniwible but esidence of unqualitied ment oller a little bit. 'I his statement h not itself adnh-fact awertions ("We innemled om adseithing to mi lead ,,ible to establhh that the party ou ned the scattold. Rule people into thinkine that our bcserace product is 100" 405 prohibits it. On the other hand. epposin" counw! h orange inice": would be admiwible. 'I he limneN ap-f ree to emphiy Fi o R. On P. 34 discosery to obtain the proach wouhl base piesened a party's ability to pinteet recorth mentioned and they will be independently ad-I itse!! by couchme semithe statements in the old hspo-minible to estahlkh the fau of ownership. Ct. O/ncr thetieel uay. Conortittee for the Re l.lectwn of th I'veside.r. t'h 'lhe SenateN Juibeiar Cimuninee thought the llouse F.R.1). 553 (!).D.C. IC3). 'I he def endant could wt im-e version would serioudy blunt the wlutary citect of the munife its businew records or their tactual cimtent from Supreme CcurtN lormulation and. by immuni/ing only disemery or admiwibihty at trial by the espedient ut a hypothetically phrased fact statements. would indicate sxmingly casual re!crence to them in the midst of a cnce again a patetence "for the mphhticated, and a bargaining conf erence. trap for the una ary. " Si s ui its n mi No 9312-~ at 10 lhere remains one funy aspect of the matter. how-It noted ihat three uates that had already adopted e,i. ever. Prolewors Sah/ burg and Redd. their eminent-dence codes pattert:cd alter the Supreine Cou-tN 19 1 13 useful Fi m in: Rtiis oi Euin v i Maw u. t2d ed. Resiwd I)rait had retained setuons of Rule 405 identical 1977) point out that party admiwions are always "other-to the CourtN draft. Ni s Ris St u s 48.105: N. M. wi e dhenverable" since a party can be asked to make Siu Aw 119.1 Snrp.! s 20 4-40N Was siu Au them under Federal Rules o1 Chil Procedure 30 (depop [1973 Supp.] s o01.0s iWeuM. tium.) 33 (interrogatories), and 36 (requesti lor admis-sions). It might therefore be argued. unde Rule 405s Burst of Osertirafl.ino a mmewhat few than arttul wordmg. that an adnu.winn Accordingl. the Senate reieered the llouseN amend-made during settlement neentiations is alwan admieible 3 ment, restorme Rule 405 to its, onginal Court formula. since always. "dhemerable.' This ingenious reading of tion. But then the Senate engated m a burst of merdiati. the rule would devrov its utilits. As Saltibute and Red-ine in the name et stariikation. h added toahe rule a den ri. luly sugecu. #1 he answ er lies in readin.: Rule 40% sentense that it s. nit wav intended to ensure that as permitting the imroduction of any ad niwie act....de "esidence. such as documents, h not rended mad- ,J,fajnc,f,f,, ring discon g een tho!ach he ume admis-minib!e inerch becauw it h presemed in the enurse et dons mav hase been made in settlement necotia:icns.' compromhc negotiations it the esidence i ot herw he /J, at Ifl. This approach, which is to be ta' ken orh in diwm cra ble. - his us Rii m No 03-12-~ at 10. The connection with adminions will prebablv ;'rotee:lhe added wnteme created the "oiberuhe thwmerable" ed unctity of the bargainig table adequa:eh' witifout pro-certion to Rule 406 baue esclusionary ru!cs. vidmg an immunity for e. cry wrap of esidence wluntari-The SenateN amendment aihted thh wntence: "'I hh ly dise!med during negotiatiomi. We wy "probably" rule doe no: letpthe the esclusion of.my oidence other-becau e there h wme rid that courts uili permit the uw mise disemerable mitely becauw i: h pre ented in the of such admiwiom to impeach the par:y who later course or comptonm.e necotiations." As we base in-retracts. timated. thh amendatory language might be thoucht supertloous in bel.t of the ruleN reference to the escin. h1 ore Overtiraft,ng i sion only of "sonduct or statements" made durine com-The ruleN concludmg wnience, which is another ex-promiw talks. Sec J. W u ILTm Ni n Fe in int Ri i s s m ample of oserdraf ting. uates the fairly obsious proposi. Euin w i As Asu n:4 15 (2d ed.19 51. As one com. tion that the rule does not require exclusion of com-memator recently remat ted. "it is inconeehable that. promke of fers and surrounding conduct and uatements courts would all.m a liiieata to amid the adminion at when thev are olfered for wn'e purpow other than prm. trial el reles. int. disioW* shle 1. hts simply by sidinkiting ing the salidity e. ainoimt of the plaintin's claim. One of them during compromiw negotiations." (Hack. The the mmt f requently recurring collateral uses will be for Texas mdes of 1:sidenec .4 l'uopmed Coditication. 31 impeachment of eredibility. S.W.LJ. 999. 'N1119'-). thu apparently the Senate did No one argues stronely against the uw of statements not wish to be haltufe. r.o. made durine compromhe negotiations to impeach the Thh portion of Rule 405 h not limited to " conduct or credibility of one who is not and will not be involved in statements" but applies to "any esidence otherwiw dis-the litigation. Sec. <.r.. S. Sat.reuern; & K. Ht ours. c'merable." il nphash added.1 This might wegest that Fiin nu Rt is or Euin vr Mast 4t 172 (2d ed.1977). the rnie gheth immunity in one a,emence and taketh Thh is the well.kmm n liner r. Ifrophy 212 Minn.194. 3 gAA g yg o~~ cr I3 9 4 4 1cc C J < tru ca o.
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J. N.W.2d 3 (1942). situation: A kues B to reemer for per-plea of noto contendere, or of an olfer to picad g.n sonal injuries rend property dannge resulting f rom a col-noto contendere to the crime charged or an) other e 3 lision between her car and B s car. B claims that the or of statements made in connection with and rcles.: 7d negligence of C. the driver of a third car, was the prosi-any of the foregoing pleas or otters. is not admiwa 4 mate cause of the collision. Plaintiff A culh C, who tes-any civil or criminal proceeding agaimt the pen.m j W titles that B was solely responsible for the accident. On made the plea or utfer."'I he only esception to this - 5-3 crowesamination. defense counsel asks C whether C tise rule is that esidence of the descrd ed u.rt e.. paid B any money to compromise. The correct ruling is reeched in "a criminal proceedmg for perjury i r J to permit this crow. examination. The compromise was statement it the statement was made by the deter between B and C; their dispute has been settled. No under oath, on the accord. and in the preseace i :. .aj violence is done to Pule 40n basic policy. which is to sel." In short. plea negotiati.in eiidence can-4 protect the party making adminions during compromise employed for impeachment purposes.
- d.5 negotiations from suffering for them at a later trial. In our hypothetical based on Esser v. Brophy. C is not a Superficial Argument i
party and has no monetarv stake in the lawsuit between One may superficially argue that under Ru'e 5.2 A and B; he is therefore not unfairh treated ifimpeached greater lautode is to be gisen to the use of stat. 'd either bv showing his setticment with B or by showing made during eompromise negotiations in cisil eam - ~ . :E statements he made during bargaining leading to that Rule 410 accords to statements made durir.g .'d settlement. A cannot justifiably complain. since he neser bargaining in a related. pending criminal act.r N was in a position to control what C might do or say. seems more than likely, howeser that courts will W 9P lt would be quite a different matter to permit B to be the shield of Rule 410 to prohibit the impeaching. .H statements made at a time when the defendant u.n p# Impeached by compromise statements made by h.im to A gaining on both en. d. and er.munal t.ronts. Any o. .r= terpretation et Rule 410 and its interaction with y where the compromise has aborted and B.is the defen-J e-dant in A.s action. At least one U.S. District Court judge would create an anomaly that would run counter t.- goal of encouraging plea bargaining. 2M Rule 409 prmides that "lhidence of turnishing 9 Rule 408 s poh,cv is to raint er pmmsms ie p>> medicai. hmpiiai. or < 3 M cxpenses occasioned bs an iniurs is not admiw f1 proleel the party mahm..'g prme liabdin hir the injurs" Wtuuy conwen. .j sauce. prnilege or contract cloud the purpow "g ad1111SSIOIIS I.rOI11 St1((er111<r rule. '!he policy undahing it is trankly humann d t o 33 g [Or l}1elli later. we uant to encouraec the providing of awistance injured person. li ma> seu. odd. howeser. th. + . _j 409% shield does not reach conduet or statemer - .a ui were not an integr.d part of the turnishine or o::c %Yd q has strongly suggested, honeser. that statements made promhing to defray medical espenses. Apparer ,g by a party during settlement bargam, g should be ad. dem n*md du cogromise negotiatiom m g missible when of fered at trial as impeaching prior in. tably phmge the participann into broad.ranetc.:. sion W h tan aM d a i M aiun: 3 consntent statements. (,This suggeuion was made by y. Judge Sam Pointer during a seminar at the Federal nndk d mm WM m mmk h M hmniwia mi d not h edHiA d w-fij Judicial Center for newly appointed U.S. D,ntrict Court tual commentan. It seems strance. hmseser. th.n 4.y judges m, June,190.),Ihis uould undercut the puhey Wr A hee MM A wrmEr dwn one for t: .p upon w hich Rule 408 builds. If the door is opened to im- .J peachment ot a party on the basis of cor.cewions made at pmmisr. aM so it hs been suggested in some e a. dm Rd M huld bi mWi $ cyamm n *a g..g the bargam,mg table, sophisticated negotiators will revert wenn geciMly desirable w hen one comiders th. 'Q to their old urgmwdo phraseology. and only the unwary g will be subjected to later discreditmg. We agree with the 408, and not 409 will gmern whenever the olier :. conclusion of other commentators that courts should medied ene wes was made as part of a com;'t. ]g Wer. almo t never admit a party s barga, mg statements as m Rules 4-410 of the Federal Rules of Esidence. 4,. discreditmg prmr meomatent statements, models of drathmambip. They sutter f rom both ..1 . b.,;3 Cun.ous Aspects and merdraf ting. which can be confming. Howes c: t so often the case with rules of.cudence, their imp.s f The impeachme e potential of Rule 408's final sen-tation will pme no large problenn if the policies n:- tence has another curious aspect. It imohes 408's inter-ing them are understood and honored. To be wr 'Q play with Hule 410. The latter rule addresses plea nego-policies underlying these three rules are someth:r. tiatiom in criminal cases. Although once cast in broader mis-notiom of relesance, of rewarding cand. r$ terms, the version of Rule 410 that became law lays down genermity ercep in-but cuentially we base been t. ' d:5 sharp restrictions on the use of evidence surrounding about rules aimed at freeing up ihe bargainine pr.. y plea negotiatiom. "Escept as otherwhe prmided in thh that meritorious c.nes that ought not to da::er 9 rule, esidence ut a plea of guilty, later withdrawn. or a dockets can be settled f airly and espeditiomly, i E 635s
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UNITED STATES OF AMERICA 1 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of ) ) HOUSTON LIGHTING & POWER COMPANY ) NRC Docket Nos. 50-498A PUBLIC SERVICE BOARD OF SAN ANTONIO ) 50-499A CITY OF AUSTIN ) CENTRAL POWER AND LIGHT COMPANY ) (South Texas Project, Unit Nos. ) 1 and 2) ) ) TEXAS UTILITIES GENERATING ) NRC 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 NRC STAFF OPPOSITION TO PETITIONS OF TEXAS UTILITIES GENERATING COMPANY, HOUSTON LIGHTING & POWER COMPANY, AND CENTRAL & SOUTH WEST CORPORATION FOR DIRECTED CERTIFICATION in the above-captioned proceedings 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 Nuclear Regulatory Commission's internal mail system, this 20th day of March 1980. Robert Fabrikant, Esq. Marshall E. Miller, Esq., Chairman Donald A. Kaplan, Esq. Atomic Safety and Licensing Board Panel Susan B. Cyphert U.S. Nuclear Regulatory Commission Nancy A. Luque Washington, D. C. 20555 Frederick H. Parmenter, Esq. David A. Dopsovic, Esq. Michael L. Glaser, Esq. P. O. Box 1414) 1150 Seventeenth Street, N.W. Washington, D. C. 20044 Washington, D. C. 20036 Mr. William C. Price Sheldon J. Wolfe, Esq. Central Power & Light Co. Atomic Safety and Licensing Board Panel P. O. Box 2121 U.S. Nuclear Regulatory Commission Corpus Christi, Texas 7S403 Washington, D. C. 20555 G. W. Oprea, Jr. Atomic Safety and Licensing Board Executive Vice President i U.S. Nuclear Regulatory Commission Houston Lighting & Power Company Washington, D. C. 20555 P. O. Box 1700 Houston, Texas 77001 l Docketing and Service Section Office of the Secretary Robert E. Bathen U.S. Nuclear Regulatory Commission R. W. Beck & Associates Washington,'D. C. 20555 P. O. Box 6817 Orlando, Florida 32803 R. L. Hancock, Director City of Austin Electric Utility Somervell County Public Library P. O. Box 1088 P. O. Box 417 Austin, Texas 78767 Glen Rose, Texas 76043
i l l R. Gordon Gooch, Esq. Robert Lowenstein, Esq. I John P. Mathis, Esq. J. A. Bouknight, ESq. Steven R. Hunsicker, Esq. William J. Franklin, Esq. Baker & Botts Peter G. Flynn, Esq. Suite 300 Douglas G. Green, Esq. 1701 Pennsylvania Avenue, N.W. Lowenstein, Newman, Reis, Axelrad Washington, D. C. 20006 & Toll 1025 Connecticut Avenue, N.W. J. K. Spruce, General Manager Washington, D.C. 20036 City Public Service Board P. O. Box 1771 Jerry L. Harris San Antonio, Texas 78203 Richard C. Balough Dan H. Davidson, City Manager Robert C. McDiarmid, Esq. City of Austin Robert A. Jablon, Esq. P. O. Box 1088 George Spiegel, Esq. Austin, Texas 78767 David A. Giacalone, Esq. Marc R. Poirier, Esq. Jerome Saltzman, Chief Spiegel & McDiarmid Antitrust & Indemnity Group 2600 Vf rginia Avenue, N.W. U.S. Nuclear Regulatory Commission Washington, D.C. 20037 Washington, D. C. 20555 Jon C. Wood, Esq. Jay Galt, Esq. W. Roger Wilson, Esq. Jack P. Fite, Esq. Matthews, Nowlin, Macfarlane Looney, Nichols, Johnson & Hayes & Barrett 219 Couch Drive 1500 Alamo National Building Oklahoma City, Oklahoma 73102 San Antonio, Texas 78205 Merlyn D. Sampels Esq. Mr. W. N. Woolsey Jos. Irion Worsham, Esq. Kleberg, Dyer, Redford & Weil Spencer C. Relyea, Esq. 1030 Petroleum Tower Worsham, Forsythe & Sampels Corpus Christi, Texas 78474 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Dick Terrell Brown, Esq. 800 Milam Building Morgan Hunter, Esq. San Antonio, Texas 78205 McGinnis, Lochridge & Kilgore Fifth Floor, Texas State Bank Building E. William Barnett, Esq. 900 Congress Avenue Charles G. Thrash, Jr., Esq. Austin, Texas 78701 Melbert D. Schwarz, Esq. Theodore F. Weiss, Esq. Joseph B. Knotts, Esq. J. Gregory Copeland, Esq. Nicholas S. Reynolds, Esq. Baker & Botts C. Dennis Ahearn, Esq. 3000 One Shell Plaza Debevoise & Libeman Houston, Texas 77002 1200 Seventeenth Street, N.W. Alan S. Rosenthal, Esq. Washington, D.C. 20036 Atomic Safety and Licensing Appeal Board Thomas S. Moore, Esq. U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Appeal Washington, D.C. 20555
- Board U.S. Nuclear Regulatory Commission Michael C. Farrar, Esq.
Washington, D.C. 20555
- Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, D.C.
20555 * &MMdm:7MTMMi,ew%vmmM'M'
Douglas F. John, Esq. Donald M. Clements, Esq. McDermott, Will and Emery Gulf States Utilities Company 1101 Connecticut Avenue, N.W. P. O. Box 2951 Suite 1201 Beaumont, Texas 77704 i Washington, D. C. 20036 Robert M. Rader, Esq. Don R. Butler, Esq. Conner, Moore & Corber 1225 South West Towers 1747 Pennsylvania Avenue, N.W. Austin, Texas 78701 Washington, D.C. 20006 John W. Davidson, Esq. Sawtelle, Goode, Davidson & Troilo Mr. G. Holman King 1100 San Antonio Savings Building West Texas Utilities Co. San Antonio, Texas 78205 P. O. Box 841 Abilene, Texas 79604 Linda Aaker Attorney General's Office State of Texas P. O. Box 12548 Austin, Texas 78711 James E. Monahan Executive Vice President and General Manager Brazos Electric Power Cooperative, Inc. P. O. Box 6296 Waco, Texas 76706 Frederick H. Ritts, Esq. William H. Burchette, Esq. Law Offices of Northcutt Ely Watergate 600 Building ( Washington, D. C. 20037 t fL, \\/ - @x%vr Michcel I. Miller, Esq. Fredric D. 'Clianania James A. Carney, Esq. Counsel for NRC Staff Sarah N. Welling, Esq. Isham, Lincoln & Beale 4200 One First National Plaza Chicago, Illinois 60603 David M. Stahl, Esq. i Isham, Lincoln & Beale Suite 325 l 1120 Connecticut Avenue, N.W. l Washington, D. C. 20036 Maynard Human, General Manager l Western Farmers Electric Cooperative P. O. Box 429 l Anadarko, Oklahoma 73005 n ..,.}}