ML19312C690

Responds to Applicant'S Objections & Motion to Strike Revised DOJ Interrogatory Dtd 730416.Moves to Compel Response to Revised Interragatory.Certificate of Svc Encl

ML19312C690
Person / Time
Site:	Oconee, Mcguire, McGuire
Issue date:	04/24/1973
From:	Bannan C, Brand W, Leckie D JUSTICE, DEPT. OF
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 7912190892
Download: ML19312C690 (6)

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UNITED STATES OF AMERICA

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BEFORE THE h ATOMIC ENERGY COMMISSION In the Matter of )

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DUKE PCWER COMPANY ) Docket Nos 50-269 , 7 (0conee Units 1, 2 and 3 ) , ,

McGuire Units 1 and 2)_ ) 50-370A ANSWER OF THE DEPARTMENT OF JUSTICE TO APPLICANI'S OBJECTIONS AND MOTIOM; DEPARTMZNT 'S MOTICM TO CC"PZL APPLICAUT TO ANSWER REVISED INTZr.CGATC?.Y Pursuant to Section 2.740(f)(1) of the Coc:nission 's Rules of Practice ,10 C.F.R. , Part 2, the Department of Justice answers Applicant's Objections to and Motion to Strike Revised Interrogatory of the Department, dated April 16, 1973, and moves the Board for an order compelling Applicant to answer the Revised Interrogatory.

On March 9, 1973, the Department, acting on a suggestion of the Board during the March 7,1973,. prehearing conference , filed l a Special Request for Interrogatories regarding Applicant's filing system, to which Applicant objected in part and responded in part. On March 30, in light of the partial response , we reformulated our interrogatories in an effort to limit Applicant's task to a bare minimum. Applicant has once again objected.

Apparently, the basic thrust of Applicant's objection is that despite the Department's limiting of the request, a response would require Applicant to undertake vast-independent research into the files. While the Department does not have l l l

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the same familiarity with the files as must Applicant, we nevertheless believe Applicant will be able to respond without undue burden. We limited our request to particular subjects so as to exclude consideration of such files as personnel,  !

billing, and many others. Since these presumably constitute the great bulk of a power company's files, Applicant's task

appears greatly reduced.

More important, Applicant, through its " fair and j energetic effort" (described in detail in its objections and motion, p. 14 et seq.) to provide documents has apparently l already expended many thousands of hours searching its files.

It is inconceivable that during the course of this search Applicant has not obtained the information which the Revised Interrogatery seeks, i.e. a description of where documents on three specified subjects may be found, not, as Applicant would have the Board believe, a listing and description of 2,500,000 file folders. We merely request Applicant to report information it has already obtained and are not asking for a new file search. .

Applicant's second ground for objection, "that no showing has been made that the information sought is ' reasonably

- calculated to lead to the discovery of admissible evidence' as required by Section 2.740(b)(1)" (Applicant's Objections and Motion , p. 2) , is patently misconceived.' First, the Board itself suggested this inquiry be made. Second, the entire purpose of the request is co ascertain the ' location 5

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of documents or classes of documents with some degree of precision so as to enable the Department to comply with the Board's direction that further discovery requests be very specific. Third, Applicant, in alleging that the Department had an ulterior motive for propounding the interrogatory */

concedes that admissible material may be uncovered.

The Department submits Applicant's further objections to the interrogatory are likewise totally without merit.

First, the request regarding " policies toward adjacent electric systems" clearly is phrased with sufficient per-cision to enable Applicant to respond. Applicant's confusion apparently sta=s from its inability to comprehend the mean-ing of the word " policy." Webster's Third New International Dictionary defines the word " policy," inter alia, as "a definite course or method of action selected from among alter-natives and in the light of given conditions to guide and usually determine present and future decisions." In other words, a policy is a decision-making criterion. To accept Applicant's confusion-objection would be to render all forms of communication inoperative. The interrogatory has a clear and unambiguous meaning.

Second, assuming arguerAp that a request regarding

" competing power systems" calls for legal characterization,

• / " Applicant suspects that the Department of Justice hopes that a few file designations in the mass requested might point the Department to new directions in the inquiry, perhaps_sug-l gesting some significant incident of which the Department was previously uneware." (Objections and Motion , p.12.)

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this does not necessarily make the request defective. See for example United States v. Smith, 42 F.R.D. 338 (W.D.Mich.

1967); and Finman, The Reouest for Admission in Federal Civil Procedure, 71 Yale L.J. 371 (1962). In any event, the Depart-ment hereby specifies that the phrase " competing power systems," as used in our interrogatory, refers to the rural electric cooperatives and municipal electric systems within Applicant's service area. Clearly, a description of the files relating to these systems would in no way call upon Applicant to posit a legal characterization.

Finally, we believe that if Applicant is not compelled to make a proper answer to this interrogatory, it would be patently unfair for it to object, at some future date , to a discovery request by the Department on grounds that the request fails sufficiently to specify location or that it would require a burdensome search.

Respectfully submitted ,

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C. FORREST BANNAN DAVID A.LECKIE l WALLACE E. BRAND Washington, D. C.

April 24, 1973 Attorneys, Antitrust Division i Department o f Justice b

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o UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION 1 l

l In the Matter of )

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DUKE POWER COMPANY ) Docket Nos. 50-269A, 50-270A, (Oconee Units 1, 2 and 3 ) 50-287A, 50-369A, McGuire Units 1 and 2) ) 50-370A  !

CERTIFICATE OF SERVICE I

I hereby certify that copies of ANSWER OF THE DEPARTIENT OF  !

JUSTICE TO APPLICA5T S OBJECTIONS AND MOTION; DEPARTMENT 'S MOTION TO COMPEL APPLICAUT TO ANSUER REVISED INTERROGATORY, dated April 24 1973, in the above-captioned matter have been served on tha fol-lowing by deposit in the United States mail, first class or air mail, this 24th day of April,1973:

Honorable Walter W. K. Bennett William Warfield Ross , Esquire Chairman, Atemic Safety and George A. Avary, Esquire Licensing Board Keith Watson, Esquire Post Office Box 185 Toni K. Golden , Esquire Pinehurse, North Carolina 28374 Wald, Harkrader & Ross l

. 1320 Nineteenth Street, N.W.

Honorable Joseph F. Tubridy Washington, D. C. 20036 4100 Cathedral Avenue, N.W.

Washington, D. C. 20016 J. O. Tally, Jr., Esquire J . A. Bouknight , Jr. , Esquire Honorable John B. Farmakides Tally, Tally & Bouknight Atomic Safety and Licensing Post Office Drawer 1660 Board Fayetteville, N. C. 28302 U. S. Atomic Energy Commission Washington, D. C. 20545 Troy B. Conner, Esquire Ried & Priest Carl Horn, Esquire 1701 K Street , N.W.

President, Duke Power Company Washington, D. C. 20006 422 South Church Street Charlotte, North Carolina 28200 Joseph Rutberg, Esquire Benjamin H. Vogler, Esquire William H. Grigg, Esquire Antitrust Counsel for AEC Vice President and General Counsel Regulatory Staff Duke Power Company U. S. Atomic Energy Cc= mission 422 South Church Street Washington, D. C. 20545 Charlotte, North Carolina 28201 Mr. ' Abraham Braitman , Chie f W. L. Porter, Esquire Office of Antitrust and i

Duke Power Company Indemnity 422 South Church Street U. S. Atomic Energy Commission l Charlotte, North Carolina 28201 Washington, D. C. 20545 l

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.- e David Stover, Esquire Mr. Frank W. Karas , Chief Tally, Tally & Bouknight Public Proceedings Branch 429 N Street, S.W. Office of the Secretary of Washington , D. C. 20024 the Commission U. S. Atomic Energy Commission Atomic Safety and Licensing Washington, D. C. 20545 Board Panel U. S. Atomic Energy Commission Washington, D. C. 20545 Chairman, Atomic Safety and Licensing Appeals Board U. S. Atomic Energy Commission Washington, D. C. 20545 f ,

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C. Forrest dannan Attorney, Antitrust Division Department of Justice Washington, D. C. 20530

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