ML19309B464

Motion to Quash Subpoena Directed to Gw Stagg Upon DOJ & NRC Joint Request.Absent Evidentiary Reliance Upon Stagg Sys,Inc Work,Nontestifying Outside Consultants Are Not Subj to Discovery Process,Per Established Rule

ML19309B464
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	03/21/1980
From:	Franklin W HOUSTON LIGHTING & POWER CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19309B465	List: ML19309B464 ML19309B475
References
NUDOCS 8004040184
Download: ML19309B464 (4)

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- @ 'lt' cocurto tt. usmo -j UNITED STATES OF AMERICA l'EO b I kij NUCLEAR REGULATORY COMMISSION $ ggc3 cithe StCtdM ggdfjogaEcdca s. f DUCh g>

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD g m M In the-Matter of )

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

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(South Texas Project, Units 1 )

and 2) )

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

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(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

MOTION OF HOUSTON LIGHTING & POWER COMPANY TO QUASH SUBPOENA OF MR. GLENN W. STAGG Pursuant to 10 CFR S 2.720(f), Houston Lighting & Power Company (" Houston") moves to quash the subpoena for Mr. Glenn W.

Stagg, Houston's non-testifying outside consultant. The subpoena was issued on March 14, 1980 upon joint application of the Depart-ment of Justice (" Department") and the NRC Staff (" Staff").

Mr. Stagg's only contact with this proceeding is as a non-testifying advisor to Houston's attorneys and corporate officers directing-this litigation. b/ He has not been identified as a potential f act or expert ' witness, and Houston has no intention to so identify him in'the future. Moreover, contrary to the unf ounded assumption of the Department and the Staff, Houston has j l

no intention 'to rely in this proceeding on any of Mr. Stagg's

--1/ This Board has expressly held that Mr. Stagg's work does not become" discoverable because it has been reviewed by the corporate of ficial of Houston responsible f or the direction Order,'May 7, 1979, at 2.

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of the litigation. i 8 0040 40 \%'~~

work, specifically including any "Stagg Systems, Inc. studies" identified in the Joint Application for Issuance of Subpoena.

Indeed, none of these studies were even prepared in connection with this proceeding.

Pursuant to directives of this Board, on February 27, 1980, Houston supplemented its response to certain of the Department's First Set of Interrogatories. Interrogatory No. 4 requested that Houston provide.any documents relating to Houston's refusal to operate in interstate commerce. Houston identified a study pre-pared by Mr. Stagg as responsive to this interrogatory. This study was prepared and had been disclosed as a result of Mr.

Stagg's designation as an expert witness before the Securities and Exchange Commission in Docket No. 3-4951, a case which con-cerns C&SW's compliance with the Public Utility Holding Company Act of 1935. Since the study is responsive to the interroga-

! tory, Houston would have been remiss in not identifying it.

By its answer, however, Houston did not intend to indicate that it would rely on this study in the URC proceeding, and in fact it does not intend to so rely.  !

Thus, in the absence of any evidentiary reliance upon his work, the validity of Mr. Stagg's subpoena falls squarely within this Board's established rule that non-testifying outside consult-ants are not subject to the discovery process. As the Staff has summarized this rule:

The Board's Orders of April 16, 1979, May 7, 1979 and October 25, 1979, make it clear that the work of non-testifying outsi p consultants is not discoverable in this proceeding

-2/ The Board was so advised by Houston in a letter on March 21, Attachment A to this Motion.

-3/ 'NRC Staff Motion to Quash Subpoena of Mr. Rodney Frame,

. March 11, 1980, at 2 l^

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~ttis rule clearly requires that'Mr. Stagg's subpoena be quashed.

Houston is well aware that the Board, in a March 20, 1979 conference call, refused to quash a subpoena directed at Mr. Rodney Frame, an employee and assistant of the Staff's expert economic witness , Dr. Norman Lerner. Mr. Frame is helping Ihr. Lerner prepare his testimony in this case. The Staff sought to quash that subpoena by characterizing Mr. Frame as a non-testifying consultant. In denying the Staff's motion the Board fsimply rejected this characterization of Mr. Frame; it did not ,

retract its prior rulings protecting the work of non-testifying experts.

Mr. Frame effectively has been serving as the fingers on the hand of Dr. Lerner, preparing memoranda as.to the approach Dr. Lerner should take in his testimony, sifting evidence for him, and otherwise directly working to help prepare his testimony.

In contrast, Mr. Stagg is an independent outside consultant who is neither assisting in the preparation of the testimony of any

. witness for this proceeding nor preparing studies or reports upon.which any-witness will rely. If the Board's orders as to

'the non-testifying consultant privilege are not applied to Mr. Stagg, the orders lack any real meaning.

Moreover, as the Joint Application amply demonstrates, the Department and the Staff have already received production of all of Mr. S tagg's' studies , files, and work papers. These documents

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had to be produced to C&SW in connection with the SEC proceeding and Houston simply.made them available to the other parties in this case in the spirit of accommodation. This accommodation canno.t be construed as a reversal of Houston's position regarding

Mr..Stagg, as the Department and the Staff would have the Board believe.

In view of Mr. Stagg's separation from the preparation of any evidence in this proceeding, Mr. Stagg's testimony concerning

- his studies is both unnecessary and irrelevant. The subpoena contravenes the Board's prior orders and is simply not a proper vehicle for discovery here. Accordingly, IIouston requests that the subpoena to Mr. Stagg be quashed.

Respectfully submitted, w

William J. F(anklin Attorney for IIouston Lighting &

Power Company OF COUNSEL:

BAKER & BOTTS 3000 One Shell Plaza flouston, Texas 77002 LOWENSTEIN, NEWMAN, REIS, 3

AXELRAD & TOLL

.1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Dated:l March 21, 1980 f

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