ML19319C693

Transcript of 750514 Prehearing Conference in Washington,Dc Re Discovery Process Review.Pp 1119-1160

ML19319C693
Person / Time
Site:	Davis Besse, Perry
Issue date:	05/14/1975
From:	Rigler D Atomic Safety and Licensing Board Panel
To:
References
NUDOCS 8002260821
Download: ML19319C693 (42)

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ACE - FEDEllAI IIEPORTERS, INC.

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'*UCLEAk BEGUL.iTORY CO:2.s*1S S IO:!

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4 In the. matter'of j

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j CLEVELAND ELECTRIC ILLUMIST. TING Docket SC-364A l

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CCMPAuY 5

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9 CLEVEL.L*D ELECTRIC ILLUMI::ATING Docket 50-440A t'

COMPIJ:i', et al.

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'(Porry.;uclear Generating Station, 11 d Unita 1 and 2) i d

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- 13i South Courtroom, Room 358 14 l.

U. S. Tax Court i!

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.16' Wednesday, 14 May 1975 17 18 The Fifth Prehearing' Conference in the above-i i,.

19 3 entitled metter was conver.ed, pursuar.t to notice,. at 9 : 55 t, '

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BEFORE:

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DOUGLT3 RIGLT.R, Esq., Chairman.

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23l JCliN E3EB3IA, Esq., Mcaber (iiot p::esent).

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JOIC: FRYSIAK, Esq.,' Member.

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On behalf of the Applicants:

3 GEEALD CHARNCFF, Esq., and W. BPX; POP.D REYMCLDS,

f Esq., Shau, 2ittnan, Potts & Trewbridge, M!

910 17th Street, H. W. Washington, D. C.

5 On bohalf of the Regulatory Staff:

i 6

ROY LESSY, Esq., Office of General Counsel, i

7l U. S. Nuclear Regulatory Co:maission, Washington, D. C.

20555.

81 On behalf of the City of Cleveland, Ohio, and I

American Municipal Power-Ohio, Inc.:

9l REU3EN GOLDBERG, Esq., and ROBERT D.

HART, Esq.,

10 Suite 550, 1700 Pennsylvania Aventte, N. W.,

Washington, D. C.

20006.

11 On behalf of the Departcont of Justice:

12i 3CLVIN BERGER, Esq., Antitrust Division, U. S.

13 Departnent of' Justice, Washington, D.-C.

20530.

14 154 On behalf of the State of Ohio:

16 RICHARD FIRESTOME, Esq., 8 East Broad Street, Columbus, Ohio 43215.

17, 18i 19 20 21 22i 23

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• - e<ferol Peporters. inc.

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P R O_ C_ E E,D I U G S, l ;1 C.T!C00 j

Caces2) r~ :jrb3 2 ji CHAIRMAM RIGLF.R:

Centlenen, this will he the 3l fifth'Preharing Conference in the Davis-Besse No. 1

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proceedings, Docket No. 50-364A, ard the Perry Nuclear Sl Plant, 1 and 2 prcceedings, Deckets 50-440A and 50-441A.

i I

6 i The Board has called this conference this morning

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7I at the conclusion of the Davis-Besse 2 and 3 proceedings 8

to review your discovery progress to date, and see if he can 9

help uith any problems which may have crisen.

10 Before we proceed, would the parties identify them-II selves, please?

12 MR. LESSY:

Roy Lessy, Tr.,

appearing on behalf i

13!

of the NRC Staff.

I MR. BERGER:

Melvin Berger, appearing on behalf 14j I'

I3f of the Departnent of Justice.

16, MR. FIRESTONE:

Richard Firestone, appearing on i

17' b,ehalf of the State of Ohio.

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18 MR. GOLDBERG:

Reuben Goldberg, appearing on 19l behalf of the City Cleveland.

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20i CHAIR 2!AN RIGLER:

Do you have a " proxy"?

21 MR. GOLDBERG:

I have a " pro::y," your Honor, 22 that I can speak on behalf of AMP-Ohio, this morning.

23; MR..REYNOLDS:

On behalf of the Applicants,

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24; GeralbCharnoffcndW.BradfordFeynolds,

' rol Reporters, Inc I ek 25;i

CHAIR"AM RIGLER:

We had nothing specific on i

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our agenda this morning.

As all of i.he parties are aware, 2lI I

we hcVe been having scme conference calls with regard to i

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deposition progress.

During these calls problems were raised;

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a fi I hope they have gene away, cut I am no t entirely sanguine n

0 5 l-about that.

.l 6j I have moved to give ycu an opportunity to tell l

7 us where you are, and what the Board can do to assist you in i

8 meeting your discovery schedule that vo'all agreed upon.

i 9

i Does anycne want to speak?

1 10 MR. REYNOLDS:

Maybe a starting point uculd be to U

take the minutes of the May 1 Conference Call, c.nd see what I2 the ccer. ente are by the Staff.

I believe Staff indicated it 13 had como change in those minutes.

I4 MR. RIGLER:

I understand there is not an 15 l agreeme.it on the minutes or whatever you circulate here as 16' draft.

He will not make that a part f the reccrd, but it I7 vill give us a basis to continu'e the discussion.

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IO MR. REYNOLDS:

Would the scard like copies?

It I9

,1 has been circulated to the other parties.

Y 20 (Handing documents to Board.)

2I, CHAIRitAN RIGLER:

Would a recess help?

22

-(Indications of dissent.)

23 CHAIRIMN ' RIGLER:

Okay.

24 A

hief Reporters, loc.

Who wants to speak?

i 25 MR. LESSY: ~I'll speak, sir.

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11?.3 l

i jrb 5 lj 0%ay, I ticuld like te point out that Staff f

2l received the initial draf t at approxinatoly 3 p.n.,

yesterday.

li 3I Counsel for Applicants was not availabic by phone to discuss dl the changes; however, the secretary t.as available to take 5 [

- notes.

And, therefore, the nonsubstantive changes were i

6l trans.titted to the secretary, with respect to the minutes of 7

the May 1 conference call, and they are reflected in there.

8 I!owever, we have ene, I think, serious problem; I

9i and that would be page 2, the sixth through eighth lines:

10 "When the Chairman opened the conference call, i

11 '

Staff indicated the purpose cf this prehearing conference uculd 12l be to discuss mattera relevant to pretrial deposition, i

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discovery, including the present deposition schedule, and n

14 f the schedule for the July 1 date for ccmpleticn of discovery N

15' as set forth in Prehearing Conference Order No.

4."

16 Staff was not given the impression the Chairman 17 desired to open up all of what was set forth in Prehearing 18 i

Order No. 4, as to all of the matters that were discussed at 19 length at the last prehearing conference, which culminated 20 in the Board order at this prehearing conference, No. 5.

21 In other vords:

giving the parties an opportunity to cctment 22 on the Do rd's order.

23 Staff thinks the July 1 date might be pertinent 24.

fer discussion, but not every natter concerned with in Board E*

stal Raporters, Inc.

-25l Order No. 4.

Accordingly,' Staff would object to the words l

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1124 lrb 6 Ih "and" in line 6, all the ec.y up to the words "for", and would 2

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propose at another time a phrase to incorporate what our a

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impression of '

Chairn'an's ccmments were during that call.

4i CHAIFl*.ldi RIGLZR:

Any othcr changes?

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S MR. LESSY:

No, sir.

0 CHAIFlIAN RIGLER:

!!r. Berger?

7 MR. BERGER:

Department of Justice has one:

i 8 j.

Mr. Reynolds seems to feel it was just a change in language.

d 9l MR. CHARNOFF:

I'm having trouble hearing you.

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10ii, MR. BERGER:

Should I repeat that?

lil Il l MR. CHARNOFF:

What page vere you referring to?

12 j

MR. BERGER:

Pago 4, paragraph 7.

13 b And it would be the sentence that starts on the I

I# h seventh line of the revised draft, and that wculd be the 15!

fourth line of the original draft.

16 The-Department suggested the following sentence 17l to replace the one that is in the present draft.

The one in 18 !i the present draft states:

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" Specific reference was made to Applicants'

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objection by Cleveland's ccunsel using Applicants' discovery 1

21l depositions as a vehicle for interrcgating the City's own 22li

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witnesses.on cross-examina tion."

23 The language that was suggested yesterday reads

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.eral P rporters, li:.f A

^ 25 'I "Scecific reference was mado to Applicants' I

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-l jrh 7 1h refusal to allcw the City of Cleveland to cross-examitte a

2y witnesses prcposed by Applicants."

3 I believe 'he language I suggested would more 4E accurately reflect not only what occurred at the deposition, I

5 hlbut what was stated in the telephone conference call.

i 6l CHAIEMAN RICLER:

"Rcfusal to allow the City of i

7:

Cleveland to crocs-exanine a witnocs proposed by A.pplicants."

8 i; MR. 3ERGER:

That is the only comment I have on ll 7f the revised minutes.

i 10l CliAIFr.AU RIGLER:

Mr. Firestone?

ll li f MR. FIRESTONE:

I just received a copy of the 12 li l minutes this morning.

I have not had a chance to check them h

13i very carefully, but my notes do reflect accord with the i

14 li ccmment Mr. Lessy made earlier.

It is not cpening up a review 15 llof the entire matter, but only aspects of discovery matters.

i 16 I have not had an opportunity to review these

.17 l-minutes otherwise.

I will let the Board know immediately if N

18 '

I do hcVe any problem.

19j CHAIPl!AM RIGLER:

Mr. Goldberg?

I 20 MR. COLDBERG:

Mr. Hjelmfelt has not had an 21 opportunity to review the minutes; and we would want that same 22 reservation as we have had with respect to Davis-Besse 2 and 3, 23 and will meet the time schedule suggested for any comments, 24 ycur Hcnor.

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.e al Saporters, Inc.

25 i I would say that with respect to Mr. Berger's

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jrb 0 1[ suggested change on page 4, Mr. Ucrt, 'tho is here with us

!i 2h this morning, is listed as participating in the conference; i

3/ and he has indicated that Pr. Ecrger's change is in accord N

4 !; with his recollection of what transpired.

,1 5[

CHAIR *iAM RIGLER:

All right.

6 I am going to save a little time by addressin'J 1

7 ;' myself first to Mr. Lessy's comment:

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The intent of the Board was not to provide an G

9 ;:

opportunity for an open-ended discussion.

It is possible 1a 10] that I mispoke, myself, and it is possible I mi sled Mr. Reynolc e n.

11, and if so, I would like to ccrrect that right now.

12l We did not intend to rearguo the schedule set I

13 lllforth in the order.

14l MR. CHARNCFf :

Uc had no intention of dcing so.

I 15i MR. REYNOLDS:

The sentence in the minutes was I

16[

not intended to reflect that.

I 17 CHAIRMAN RIGLER:

I am just tellingyou what my 18 ll intent was at the time.

19l With respect to Mr. Berger's objection, I don't 9i 20 see that it makes a grect deal of dif ference.

Each side is i

21 f merely stating their position; so it doesn 't reflect on the 22 Board.

I 23 What do you care to do?

24 MR. REYUOLDS:

I think, as I believe I indicated

.erci Re.:0< ten. Inc.,

25i[ earlier, substantively there's no difference.

It is I

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jrb 9 1h Applicants' suggestion they were discussing this, so I wculd

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2 ll infer that the formulation of the objection which was made 3!

by Applicants was stated in the manner set forth here, and 3

41 since the matter was' muted and cottled satisfacterily outside 5h of the presence of the Board, I really think that it is not a

6 lf that serious a probica, that ua are that concerned with, i

7f CHAIRMAN RICLER:

Wculd you be uiling to accept 8!

Mr. Berger's proposed language change?

i I

9l MR. REYNCLDS:

Yes, if he feels better with that 10[! language change, I don't have any problem with it.

l 11!

CHAIEMAN RIGLER:

You aren't necessarily agreeing i

12 with him, right?

i 13; MR. PEYh0LDS:

No.

I 14 I think my formulation more accurately phrases what 15 1 the objection was.

It was made in the depcsition.

It was i

16 really the subject of that sentence; but if he wants to rephrase 17 it, I don't have a problem.

18 '

CEAIRMAN RIGLER:

We will have it retyped to 19 incorporate Hr. Berger's language.

i 20 MR. BERGER:

Thank yeu.

21 CHAIRMAN RIGLER:

Paragraph 7, page 4, paragraph 22 2, Mr. Lessy's comments on page 2.

23 MR. LESSY:

With respect to my change, sir, this 24]

should be a peried'--

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• porters, Ix.j 4

25' CHAIBMAN RIGLER:

I have stated for the record I

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I' jrb10 what the intention of the Board was.

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2l MR. REYdOLDS:

What?

h 3l CifAIRPAII RIGLER:

What was that last --

4l MR. REY';CLDS :

Ycs, because I have to retype it.

i 5l CIIAIPMTCt RIGLER:

On page 2, at the end of parc~

6) graph 2, we uculd put a perica after " deposition schedule",

7l and ue will delete the remainder of the sentence.

l 8 l-And the nc::t time we have a confcrence call, we 9

wil give someone else the enercus duty of preparing minutes.

1 10h MR. REYMOLDS:

Thank you.

l II MR. BERGER:

Can wc go off the record for a 12 f. second?

i i

13 CIIAIPI'AU RIGLER:

Okay.

14 (Discussion cff the record.)

15 lI CIIAIRMAN RIGLER:

Okay.

16 Let's go back on the record.

17 With the changes.in the minutes, we will incorporate IO these minutes as part of the record in Davis-Eesse 1, except 19 that we will give Mr. Goldberg a one-unck pericd to file any 20 additional corrections he may have as a result of talking to i

21 Mr. Iijelmfelt.,

22 If we do not hear from you, the minutes will 23

tand as is.

i 24 Now, are there any prob 1 cms outstanding with

'erol Reporters, Inc.

25 respect to depositions?

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frb 11 1;

M.'.. GOLD 3CnG:

We have ene that we pretably shculd 2 ld,I^

talk about wiM. Icspect to the depositien of Mr. Uillian R.

4 3!

Mayben --

4l CHAIFILMi RIGLER:

Let us interrupt you for a l

Sj minute.

6f ticuld it be morc helpful to do this on the reccrd s

7 or off the record?

8f MR. GOLDBERG:

I don't know.

I think your Honor I

9 !'

night want it on the record.

10 Mr. Mayben had been scheduled for a date originally

l 111 specified by Applicants.

My recollection is that it was 12 the 29th of April -- was it?

And there were probicas abcut 3

i 13 I

making Mr.

Fayban available on that day; and we undertook l

14 to work out a substitute date for his appearance.

And 15 i

certain days were proposed, and we finally agreed on May 16.

16 Mow we are advised that the Applicants have a prob-17 lem with May 16.

We offered to nahe it May the 15th, because 18 Mr. Mayben is going to be in Cleveland, where he was to

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19 be deposed, on May 15, where.we are hasing a conference for 20 CEI.

21 CHAIFILM; RIGLEn -

Ftvte for the record who Mr.

22 Mayben is?

23, MR. GOLDBERG:

He is the technical consultant

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.24 for the City of Cleveland in these matters, and he is A.

mal Reporten, Inc.

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' located in Cc,lumbia, Nebraska; that is where the regional i

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>H 1120 i) jrb.12 Ij of fice of the firm tith unich he is ausceiated is locatcd.

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And hc lives thcro.

I 3L Fr. Mayben is a very L portant member of this firm.

He is in charge of a regional effice in Columbus, l+

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Mebraska, and another one in Indiana; and it is very difficult 6[

to find time when he is available.

7; We were quite delighted that we were able to work 1-8l out a substitute dato for ::ay the 16th; neu uc are advised li 90 that' Applicants-have a problem with tiny 16.

And we have i

10f problems about finding substitute dates for Mr. Mayben.

And 11 we think that the depositien should go forward en May 16 12 in view of the f act that we have a date that was agreed to 131 by all parties.

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14i At this point I think maybe I better let l'

15 j,!

tir. Ecynolds talk about his problem.

16 MR. REYNOLDS:

Well, I think Mr. Goldberg accurate 2 y 17l stated the situation.

.18 yhe' deposition of Mr. Maybon was rescheduled on i

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19 a date which, at the time I believe was agreeable, and I 20 lj believed I would be available to proceed with it..Since that h

e 21 time I hcvc had a situation arise on the 16th which requires 22 ft my attendance here in Washington.

And it is something that 23' Laans that' I ina net going to be able to proceed with the 24 deposition of Mr.1:aybon on that date.

a u ne p. w. m. inc.

25l I think it does pose.some problem as far as

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reacheduling

!r. Mayhon, primarily becauce we have facing 2 ',;

us the following weck, depositions en Monday the 19th, 1

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and then tuo days when counsel fer the City is unavailable b

f or depositions; depositions cn the 22nd, and then we start Sl the City's depcsitions on the 23rd; and following the 23rd, of we have had scheduled depositions from May 27 thrcugh July if 7 i Ist, four days a veck, by the City, which dces not 1. cave cuch

!I 8l roota for recchedaling l'.r. Mayben, and scco of the other 9ll pecple that the Applicants still has notico on for July 1st.

i 10i So it is admittedly a difficult scheduling II O problem.

Dut the 16th is one date on which I am not able o

ik 12 to prcceed as far as Mr. Mayhen is concerned.

13 MR. COLDBE.".G: One of the problems I have is 14' wa don't even have a cuggestion for alternate dates; and I I

15 !

am concerned about meeting the July 1 cutoff date.

I am very i

16' am:ious that that not be extended.

We certainly don't want 17 to be responsible for extending it.

And we just feel some I8{

arrangement should be made to take Mr. Maybcn on the 16th.

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I9 CHAIEMAN RICLER:

Mr. Mayhen is an important 20 witness?

2I

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MR. P2YNOLDS : - He is a terribly important witncss.

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CHAIRMAN RIGLER:

How many days do ycu enticipate 23 l!.his depositien wculd take?

1 24' MR. REYUOLDS:

I would anticipate taking a full

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day at the cost; it may. lot take that long.

I wculd he very 1

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1132 jrb L4 I j; surprised if it toch longer thc.n a day.

2 MR. GOLDEERG:

We had offered to mako him availabic 3 h on the 15th, when he is going to be in Cleveland, anyway; he i

4f' will be in Cleveland tomorreu.

But we vere advised that that I

5:

uas not an acceptable date.

6lj MR. PIYNOLDS:

On the 15 th I also have a problera; 7l!

in terms of noticing the additional depositions, I indicated I

8 that both the 14th, which would be the prehearing conferencc, l

9ll and the 15th for other reasons, were unavailable.

I have 10)1 a hearing before the Appeal Board scheduled for temorrow n

y 11 j morning.

i 12l CHAIPMd RIGLER:

Mr. Goldberg, I am not going I

13l to insist, but I en going to require him to pccpose an 14 l; alternate date; I won't require him to be there en the 16th.

II 151 MR. PIYNOL"S:

I would like - and this probably l

16l is a logical place to jump into with what is going to be the l

17l next point raised:

Before proposing an alternate date, I I

18 would like to indicate that I have scrac serious problems with the schedule that is proposed by the City and the Department 19 20 for depositions starting May 23rd, and going through July 1, 21 four days a week, Tuesday through Friday, which leaves only 22 l Hondays of each week for counsel to have an opportunity to

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23 prepare and talk to witnesses ahead of time in various other 24 cities; also to file whatever additional filings are required

.Jeral Reporters.. lu.

25 f in this case.

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-jrb 15 Also wc have been advised this morning that there 2

is going to be an additional dccument request from Department 30 of Justice within a wcok, which is going to require attention 4l of counscl.

I think if we are going to be talking abcut novin:J il 5

quickly on Davis-Ecsso 2 and 3, that Applicants are going to I

6 ((

have a dccument request of their cwn that they are going to 7 lj have to preparc and get out; ar.d it really -- to try and do 8I all this just confining ourselves, for the :".cmont, to thesa ll 9

proceedings, and putting asido whatever other matters might 10!

require counsel's -- ny attention -- or the attention of 11 2:r. Charnoff -- just confining it to these prccecdings, the I

12 prespect of trying to operate on a four-day a week basis 13 with depositions is, I think, next to irapossible.

14 I thin: all we are going to run into are situations 15 ll where ve are going te. have nore delays than if we tried 16 I to strike a reasonabt.e schedule and fit it in en a reasonable l

17.

basis.

18 Now, we have been working on three days a week; 19 we have been able to depose 18 witnesses in 10 days of 20 depositions.

We have 5 witnesses Icft, and anticipate that 21 we would be in a position to finish those 5 witnesses before 22 the 23rd, which is when the City's depositions cermence.

23 That leave us with, at the present time, Mr. Maybcu,

.24

.duol Reporters, tre.j two witnesses who are prescntly located in California, and 25l there may be one or two others, other witnesses whose names

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j b'16 IJ have ccmo up in the nest recent depositions.

And we have

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no tire in terms of alternato ccheduling ncw to even think

, 3 about where we might.invc an cypertunity to depose them.

4f I am agreeable to suggasting alternate dates --

5 t but I havo-been lef t no dates; and I think that is a 0

6' practical prchlem thet the Ecard should at least give scme 7 [,

consideration to, a

8 CHAIP21AN RIGLER:

Mr. Goldberg, as the City ti 9 f begins its depositions, do ycu anticipate using each of a

1 10 h those days, and taking each of those witnesses?

Or is it d

IIfi possible scme of your early ansucrs may eliminate the neco -

I 12 sity for calling separate witnesses?

I 33; MR.JGOLDSERG:

In rega::d to the schedulo, 14 Department of Justice -- sir, I night add that this is a joint 4

15 il schedule for the City and the Departrtent of Justice.

16 I CHAIRMAN RIGLER:

I appreciate that.

17 l

MR. COLDBERG:

I am looking at the schedule, for 18 h

example, on the 28th of May, three witnesses are scheduled i

I9 !

for the 29th; there are three for the 30th; there are two --

20 looking.at the schedule there is a rare day when only one i

2Il person is scheduled for a day.

I!

22 I And it may be that we may be able to take more 23 than two or three in a day, becsuse the agreement is that as 24 c

people are concluded, if there is time available that day, Jcrol Reporters.1.ic.,

25 [

you jus t move right on into the next person.

And va have done I

,i 4

F, n

l 1135 s

.I sctc cf that recently vith :'r. Itcyncida.

17 8

2;!

CHLIPMAN RIGL2R:

Suppose.tc set aside a Saturday?

N 3!

MR. GOLD 3E20:

A Saterday for Mr. Mayben?

I it 4'

suppose that could be worked cut.

I wculd have to be in touch 5

with Mr. Mayhen.

6 MR. LESSY:

Perhaps a Saturday in Washington li might accenr.cdate ccunca1.

fi 8 fl MR. 52nCUR:

I would mention that Manday is l

9 generally free in the schedule.

l!

10i (Laughter.)

i

e II h CUAIRI'XI RIGLER

Mr. Reynolds has a good point, i

12 that it is very difficult to take four days of depositions 13h with only cne-day to prepare for next wech's deposf.tions.

P I4 MR. GOLD 32RG:

There is this to be remembered, 15 / you-Honor, that is, Mr. Reynolds has bcon carrying the 16l deposition -- I an aware.

But they do have a team cf Lawycrs i

17 available.

The entire load does not have to fall on Mr. Reyno2d i

18 chculders.

I' 1

19 I am reminded at a point in these proceeding's 20!

where, at one of the prehearing conferences, I think I 21 i.ccmplained'about the schedule because we are a small office, i

. 22 l! and do not have too nany people.

The remark was made by J

23 [

Applicants' counsel, "When ycu get into enc of these cases, t

24!

you have to do what's necessary to be prepared to cope with

• ercl Repor*crt frc, 25

. t.,,

I

lI -

'u t

d l!?6 4

frb 13 lj Well, we did.

No.; cat cut and obtained the 2;

services of an outside counsel, Mr. Brand, to carry forward

. i!

3 ll and meet the cchedule.

I dl It scens to me with the team the Applicants havo 5'I they.cught.to be able to do something r. bout relieving I

6, Mr. Reynolds.

I i

7!

I am trying to help ycu out, Mr. Reynolds.

i 8I MR. RE'n:cLDS :

I cypreciate that, Mr. Gcidberg.

i 9

The only practical problem I see with that at the present ei 10 time -- cnd I am sure both Mr. Rigler and Mr. Frysiak are 11' aware -- having ccme into the case in midstream ic that we l

12!

have depositions now that are acheduled right around the t

13l:

corner.

We have had an extensive discovery pericd with a 1

14' number of documents which called for review and analysis.

15 We have had quite a number of discussions on 16!

legal issues, in trying ot understand what is involved in 17 this case.

And to suddenly bring sencbody in at this stage 18 to handle depositions, it secms to me, ic unthinkable.

It 19 would take him an extended pericd of time to get into a 20 lf. position whero he would be able to operate effectively in that Il 21 i

kind of a situation.

t 22 CHAIRMAN RIGLER:

I see a problem there.

23 Ecuever, if there is to be any now diccovery --

L 24l I cuppose Mr. Derger is not fully committed to that -- but if ierat Repoam. see.y no, I think it might be appropriate for the Applicants' councel

't I

F, 1327 1 [liat thtt point to put in como additional'le9yers to revicw

bis 4

2 [!

that ucrk, so that you may prccccd c::peditiously with the d

3F depositions.

l 4'

I think maybe we shculd look for a Saturday for 5

Mr. Mayben.

6l "R.

COLDBERC:

If ccunsel will indicato some datos 7

to me, I will make every effort to get a date when Mr. Mayben 8

is available, i.

9 CHAIRMAU RIGLER:

And I would think that the 10j cuggestion of bringing him to Washington -- as long as he has i

11 to travel, I suppose it makes no difference to h.4m whether 12; he is in Cicveland or Washington.

13I liR. GLLDB2RG:

I know this, that Mr. Mayben's I

141 vife is expecting to give birth; she has had problems on other l

15 '

occasions.

He is loatho to be away from her side until 16 the event takes place.

And I think it is taking place shortly 17 after the 16th.

So that is going to impose a little prob 1cm 181 on finding a~ Saturday date.

'19 But, let's try it, and see what we can work out.

20 We are not unmindful er unsynpathetic of the problems that 21 fir. Peynolds' has.

22 CHAIPMAN RIGLER:

I appreciate that.

23 MR. REYUOLDS:

The other alternative might be if 24 they were to produce Mr. Mayben on a day we can defer those sol Reporters, tw 25{

Ldepositions, and reschedule them at another time; take i-l

it 1133 L

2,.

frb.21 1]

enactly the kind of information that should have hcen precentevi 2j by then at an earlier dato in uuppert of their clains of 3

privilege.

4:

Now, if they are pernitted to ma%c this ncw,

.i 5 h obviously we are going to have to have time to study it i

6.'

h and ake a rcrponse.

All that is going to introduce additicnal 74 delay and jocpardize the schedule.

8h So, we, therefore, cbject to any grant of that 0

9E notion.

I 10 ll MR. LESSY:

Staff feels the city's objection is l

li 11 c vell stated.

i 12!

MR. BERGER:

The Department would agree with l

13i that.

i 14 l And I might point out that we were scmc months 15i ago very concerned that this privileged document thing would 16!

take two or three months to brief, and hopcd to finally get 17 -

it.

If we are to extend this dealine again, we are going to i

18 end up where ve started.

19 CHAIRMAN RICLER:

I spoke with our new Mastor, 20 /

this week.

Uc is nou in the precess of revicwing the briefs l

211 and dccuments.

22 What is the Applicants' views?

23 MR. REYUGLDS:

Our view is that the only objection i

l 24!

that we see in the briefs filed by the City and Department --

A '.s vral Reporfsrs, Iric.

25 l MR. LESsY:

Dces this go to the substance of what i

i

1 11..$ 9 jrb 20.

1, Nr. Mayhen's deposition en a day that is conveniant for him.

2l i

We uculd be willi.ng to do thch.

.I 3!

MR. GCLCDEPG:

That uculd knock everything cut of l

4 kilter on.the schedule.

5;'

CHAIEMAN RIGLFR:

I see your problem.

l 6l MR. GOLDBERG:

Saturday sounds like a good l

7l idea.

i 8j MR. REY:: OLDS:

Well, I think if we could -- I don't

'l i

9r know if we need to do it on the record -- talk to Mr. Goldberg l-l 10l and arrange what Saturdays are available; and maybe at that ll lj point we could arrive at a date.

12l MR. GOLD 2 ERG:

Right, le t's try it.

l 13 CHAIRf*Ali RIGLER:

Let's do it off the record.

14' Now, other problems?

15 MR. GOLDBERG:

Well, I don't know if this is a 16 problem or that it fits within the Bcard 's contemplation of 17 what wculd be taken up today, but we have received a motion 18 by Applicant to leave to file response to the briefs of the

~

19 City of Cleveland and the Department of Justice on claims 20 of privilege.

4 21 And, as far as the City of Cleveland is concerned, f

22 we object to any further response.

We have read the 23 applicaticn; it sesmn to us that there isn't any goed cause 24 shown for having that cpportunity affcrded them.

It secma to A

lefol Repceters, Inc.

25l us that the information they say they uculd now present is m_.

ii I,

1140 h

I:

you are going to put on briof?

2,.._

,-a

~~

2 i MR. PEYNOLCS:

E::cuse ca.

il 3H

j Am I allored to respcnd to your question?

6 4!

CHAIICIAN RIGLi:2:

Yes.

I 5

i MR. REYNOLDS:

That they go to the ma..t?r of whethcr 6 s Applicants' have met their burden of proof, and as to that, 7

g it is Aoplicants' position we have answered interrogatories 3bj under affirantion.

What ne have propcsed as a response was tl 9'

l to submit an affidavit that would in essence set forth what i

10i ii wculd have been said under affirmation to rake it clear that 11 :l 3

as far as the evidentiary aspect is concerned, the burden of 12 N

!i proof is not a problem.

And the 2: aster can then look to

1 13 t i;

deteruine whether the dccuments do or do not warrant it 14 r protection.

f 151 It is not a matter of rearguing the legal 16 issues or the legal principles.

I think that, in fact, all 17 !

i sides are but for very few cxceptions in agreement as to what

\\

-18 i]\\

the legal principles are that control.

But DCJ has designated 1_

19l a list of specific documents, and says that in those categorica 20}l

[-

the burden of precf has not been not.

21i our proposal uas basically to submit an affidavit I

22-by the parties, the person in whose custcdy the dccuments i

23 have~been kept, which would state what is incorporated in the 24 3 4,ai e.nonen. Inc.)

interrcgatories, but as they were put in unort form rather 2

'25;l j

than stated ferm, I think that may be che real cause where thei o I

n L.-

il 1141 1

.rb 2:

Ih is some question as to whchher Applicants have met the i

2h evidentiary burden.

3 We hr.d proposed to do it by May 23rd.

4l MR. BERGER:

1 think the Department is going to 5l ask for the right to reply for any additional briefs or il 6

arguments or whatever.

I don't

-.ow hou much longer we are i

7 ),

going to wait on these dccucents.

8 I might cdd we postponed our deposicions of CEI

'I

- 9 ll people whose docu. tents were involved for as long as we can.

I, 10 They are the last week in June.

By that time we hoped to I

II I have the privileged docuncats.

If we are going to wait two g

I2 !'l or three more weekc, then we are going to be taking depositions i

13; without having an opportunity to see these documentc.

1

~Id CHAIRMAN RIGLER:

Eas Mr. Reynolds accurately 15; expressed a problem raised by the Department in his reply i

d 16 f1 brief, i.e.,-that the material is there but it is not I7 properly docur.cnted?

18 *l MR. EERGER:

I did nct personally work on the I

19 r

brief.

I am unable to respond to-that point.

20;I I would --

i 2Il!

CHAIF1IIdi RIGLIR:

If that's the issue, it doesn't 22 strike me as being a very major issue.

23l MR. BERCER:

I really cannot answcr that.

I did l

24 jl not work on the brief.

~

br al Repsters, iricq 25' Again, if it is not a major issue, why do they ack t

i

]

i e

1 1141 jrb 24 1;

fer 10 dayr?

2 MR. GOLD 3ERC:

If I enderstood what Mr. Eeynolds Iil 3 ]

caid he wculd.like te do, it is submit an affidavit and not i,

1 4[

simply rely on affirmation; and that it would precent nothing i

5)

-new.

l 6 ll If that is the case, there is certainly no 6

7 occasion for any further delay with an affidavit or anything i

8 e lt,e.

9lj And my own impressicn of the briefs is that It 10 0 claims that they have failed to meet the burden of prcof 1

I 11 ll did not rest upon the fact there was not an affidavit, rather 12 jl I

t than an affirmation; it rested on the prcposition that they u

!3 i hadn' t factually de enstrated that they came within the

.l.

14 2 principles of the attorney-client privilege.

ji i

15 il MR. REYUOLDS:

I think the briefs go to that I

16!

point, and the reason we felt an. affidavit was warranted l

-17 I is that the way the interrcgatories were answercd'was by 18 columns, and information in columns; and the briefs make it 19' clear that on the basis of that information it would not--

20l it was not clear to the other parties whether we were talking i

r 21 !;

about attorneys or ncn-attersays; uhether it was centrol group 223 or non-control group.

1 i

23 We also submitted the organizational enart; the 24j affidavit wculd go just to the-points that would be -- that mi mod.,,, fx.;

25!

the people who are listed there.are attorneyr., that the people i

I 11 3

• A -* s Jrb.2'5 l*

- who.are there are in the.ccrporate poc.itions, who are in

.l 2

control;.that is the' nature of the affidavit.

3 It wouldn't-argue legal issues again as to wh:t 4!

tha legal principles are.

5 r.iR. LESSY:

Staff was not involved in this 6'

controversy, - but I really think Applicants have had two 1

7

, briefing o.c.cortunities.

And it really gets to the "ecint in 1

t i

Si terms of timing of saying that they have had tuo opg:::unitice ;

~

i 9

a nurtber of pages have been filed on behr lf of Applicants --

10l and that's all.

11 ll There has to be a recaonable point of cutoff, i

I 4

I2

'and to peratit replies until everyone 2s satisfied -- that's e

.a

O not wnat was center.platca.

I4l We discussed this at a conference call with the

.15 lK j

Special :: aster in

'.ich everyona marticinated and creryona i

i

~ 16' agreed to that. schedule.

Now, if an individual party'ic

~

'17 not satisfied with their response, they hava had twc oppor-18 tunities to do _t; anc I do not see any cenerit or celaying

^

19

any decision by the Suecial ::arter for another 10 days.

~

20 To go forwaid, I note that Applicanta have filed L

- 21 "in uriting-for a. reply, sc=ething ue have not seen cofore;

. 1

-1

-22l but I think with two cp;ortunities to reply, the <jate falls.

I 23 IG.

d Y;:0 LD F :

Ir. p.igier, I would jus lie:c to l

74 i respond.to that;briefly, and I believe that it is prchably E

. dt*C5 Reporttfi, Int.

se

~ 25 thatIr. Lecsy c.as nct-haen-involved in this, anc he say not t,

l F

l

h[

l-p.

. _1 :e..

I

,Lc aware, but: the' partics ac.,rced that the first stir.issicn I

, 9 '25

'2 would be an affirr.ative'bricf en the-legal principlea in

~

'n 3i supcort of the cl. aims that were asserted; and t'..at then t..e 4

other parties woulf, have tha oppcrtunity to recgond to tho.-;c 5;

. affirmative briefs on the-legal' issues.

i Iif And in the Departuent's response they did list 7

certain docunents, and ec would not propose now to brief 8!

.again tha legal questions or reiterate what we have said.

i

-I

<. r.

,.,,,,, s7 s _d_

is

.e._ m... l..";

t. o c~-

• _ +

4. _-

u' # #. _4.s4.. "s#*

a

.s I

10 -

that gecs to the fact tatters that I suggested ccrlier.

4 11 M P..

G O I S E E ".G -

The poiit.I have nade

.:u=

th-t t

Illl when the r..Initted the clai::s 'of tarivil.ec e, that uas the s

.o 13:

. tide f or. the:.' to :nat.e e r appropri ate showing.

Accordiig ts i..

lat I

.a..:. c.., u,

u.,. u. _ c,..,.,. ;.

,,. w.

u., cl.. u &., a z. t..,..

.1..,.,.,

. u

...c3 r.

% a :.

.. a..,.,

g

j t

- 15 P

.the.v still h.n en' t nade an acc_ ro_ariate shouin.:; and-thcv

'1 Ml want ano th.. crnck a r. i t.

1 1

17l It scans to me this can only i ntrcduce the need e

a 1

for' responding to the s.r_icavit, unica y nr.ve additionsa

=}g

.c i

gaps'in-then-and it s simpl-coing *o delt.y it.

As ::r.

M

).

20 Berger points out, it's going to put that 0uly 1 date in t_

4 -

21

=rcal. c o n. a r c ".

,22

.,.,., L,. _., n..

1

..,47.,.,_.

,..ve g.... r..

.. 1.

o_

. o- - p,s1 ; _. -...,, m..e -.c a.t.t.w e

+

c a 23 2,

ts, n -..

=s..

n A

.a

.. c I

unc that Oas~before the reply briefs were due bar% cn nis, 24

..dr?oleval paportea tei.

i20 Cepartment sent.r. ' letter to :.:r. Re:ncids detailinc! cert.ain a

r,

...--n

-,_y

.,, ~ -,

,y

,w m, -,,-

.'T 4

i 11.:5-jrb t 27f 1

daficiencies weLfound.in ans'aers to cur interrogatories, f

f 2

':' hey 'fent ' pretty much to the chart the.t was used to > resent'

~3' t'nis inrorbation to'us.

• ~

- l

-4 We received a reply letter frcm 21r. Iiouser 2

t 15 e::a. lainina. how the chart was set up and ho that met our 4

2 6:

ob3ections.- We f ound tha t letter to - be, althcugh not clearin" 7,!_

up all problams we had with the answerc to interrcsatc,cies

!8i we found it accettable, and '.a so stated that.

i 19 [

How, apcarently, :Ir. Feynolda is coming back i

il -

10 'j anain, and wante to again codify the anst:ers to the interrega--

I 11i torie.s -- anct.

times is he going to,e civen an

. new many c

p

.t i

12!

cpportunity to do this?

+

r

~

13 l

R. LI:US Y :

1. :. tern.3 or senecule, i r.

n.%

1..t.m.

i

~

14i

_on both r_ne depositions and the proceedinqs belcre t?.e 13 [,'. Special Master; and it should be taken very s~;icusly.

ligs 16 MR. REY:!OLi.3:

That assumes, IIr. Lessy, that vcu I

-l 17.

'are entitied to any of tha decurents.

18 (Laughter.)

~

119

R..LESSY:

I dcn't think tharo's any r;cestica i

20!

abcut=that..

21 C."m' I r".". n' ".-. w' '.'. a-' ~a -

v.-

4 4

22.

The Board..ill give a ruling on that as expedi--

t I

I,

23i ticusly as pccsible.

a I

24l

~

In th? : interval.:e. cill not delay _the cenaidera- >

. :s4.,2+ct Reportys. facN 1

~

- 25j

tica of tha Special 24 aster fer documents in.~.ir'la. ficus-i 2

'l

.. I u.

c

t I

1146

^j rb f 23 '

I and if we'should allow additional-filing, obvicusly, ':e will 2.

apply that to any decisions he may make.

3 Other questions?

- 4:

MR. REYNOLDS:

I wculd just like to return, if I 5

might, to -- we got a little side-tracked, I guess, frcm 6

'the deposition schedule.

7 Sut I wculd like to return to the matter of a e

8(l cchedule that requires four days a week of depositions out of 9f tosin frem May 23rd.through Jul"2 1.

And I ask the Beard,if i

1 4 -

10j we could have that schedule revised some way down to three 11 d a"s e. w'ek.

i 12 !.

CHAIRMAN RIGLER:

How can we do that and meet the l

a n

13 [

. July l-schedule which is so important to the Applicants?

i i

I4f That is the'prchlem here.

l

- 15 I am sympathetic, but I just don't see'heu we can 16 do it and meet the July 1 schedule.

17 We have been very_ receptive ~to the Applicants'

- 18' position that " time is money", and they want to proceec as 19' prcmptly as possible.'

"O ER. REYNGLDS:

I apprecicte that.

The July 1 21

'date is important, but I do not see how we are going to reet i

I 22 the July l.date in any event and finish those dep:siticna, 23 and also the additional depositions that the Applicants 24 need-to take.

Thare_is 'no time left in this schedule after

. W. ederal Reponers, fec.

May-22 for the Applicants to propese the additional witnesses l

~

25 E'

A V.---..

I 1147

. 3 rb 29' I

that'they need to depose.

2

'I think'we are not really being realistic to 3

look at th'e July 1 date as an absolute date, any way..

4 CHisIRMKJ RIGLER:

That's true.

You will have 5-

. difficulty in meeting even the July 1 date if you want to 6l depose additional people; then I do not see how we can help 1

7l you cut by cutting down the deposition cchedule from a four-l 81 day a week'achedule to something less than that.

t 9l If we have a time problem, if we are in a squeeze,

)

i' 10l then cutting it from four days to three is only going to 11 make it worse.

I 12!

MR. REYNOLDS:

Well, I guess it is just the L

13!

realities.

I helieve that what we are going to run into is i

14!

that the schedule is going to pose a prob.'.em in any event; l'

IJ ard it is the type of thing that

-- I think i; is gcing to 16 cone to a point where Aoplicants are just not gcing to be 17 in a position to produce a witness on one or more of the 18 days of their nctice, and we are going to get into a much more difficult situation of delay than if we look at the 19

.20 schedule realistically now, and say that we will do it three 21

' days a week, and schedule it so that we add two or three 22 weeks, instead of doing it on a one-shot basis.

23 There are other cermitments which are going to l

require that we have to -- I think it's just going to be 24

s4socrat Reporters, tec.'

f 25-unrealistic to adhere to a four day a week schedule.

.a b..

i-La t o fro 530l.

I CHAIPEAN ' RIGLER: ' I s It. Charnoff involved in i

,g 2!

the deoosition schedule?

I 3

- Pert'of the problen is really that the Applicants L

I 4'

only have one' attorncy who has been foi. lowing thrcugh en each j

t 5l

. and every deposition; and in view of the f act that you are

.1

. -1 l

6; talking about three plants involving-five applicantc, that 7l ncy be a little unrealistic.

1

!ow, we are already into that prcble:3 to a degree 8;

+

s-1.

P.eynolds has already developed tha enperience.

9 fl becauso Mr.

J t, I,

10 f

.You can't accronch the acard and asn it to aelu./cu out in

,.i.

II [.

c::pediting this cenedule and resolve this shole issue, and at l' l

' ~

12_ Il. the same tice just have one man shephe:: ding all of the b

)-

i, a p.

u ey v o _ m _.u ~.

I4 q s;

R.CHA21:J{F:

The answer to that is a 'iholo-host l

J 15b cfichhcr coatlich, including acte other hearines involving 1.

I 16 )

this nartic"1.ar-plitnt that will be cor.idg up during the j

17-I' next few weaks.

In oreliminary conversations with Lir. 2ran.1 -

18,..

several weeks bach, I had suc.q.ested -- ard I thcuc.ht we had t

I u

I

~19!

talked about it, but tro hac no agreement -- that on just a i

)

120 1

- question cf hu. nan-sndurance-tySe-ar:.angen.cnt,.that a three-day 2I, a week schedule would nahe a great' deal cf sense if de are i

a.

22I

- going to go - 12 '. s traight weeks', " frcr the h2ginnin? of L23l April'through the end of June.

l F

24

' And I must say that.ie were just aur.rised to derci Reporters Inc i l

25!

-Jsee what seams to'us to.bi a verj lengthy list of

~

(

F 99

? Mwti H

D-

---ei--mw-wr-s" r

y

?

1 1

a Q

e

}p

I,f,

.i

..e

1 i, o. 9 a

t i

."rb 31 1'

d c.,osi tions.

I think when that lis t come in, I "hir cur i'

I 2

reaction to it was that ti.a t if there is a humar. - acttr in 3i a.l.l

. '.. ". M1.iS - - -

-.~.v.

c C.,.. 4

.3. n 3 a_'.r

_ 2'~c.A v, O_ica b

'.e =.,

(.

u-.. c.e.

- 1

.a

- s 4!

obligaticns as.wel'. -- that whea one is ccrritting hn.scif 1.

?

Si to 'a schedule that is week af ter week f or ten straig t 'teoks i

6h or co, that one has to allow better than a day or two a week i.

t 7'

for some other actizitics in c.ddition to preparaticn.

i

t..n.tnr. taat on sueing thnc lisc -

c.ich t.as e

e.nd I n;

s' i ny reactica was that che July 1 date just I

9I not cur list 10 heecres a very questionable date.

'.le ' tant i t, but 7 thinh 1

11 0 we have to rc.ccgnize that life has a lot of other thinris

,l

.: e. n gvs#..")

"% o.. s'. ".* t '. ' t.

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uany copositions, we can,a v ocet -~ o.v_ous_,y, tr.o partiac j

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14 3 can list all oi the teople they vish to dcpoco, but la that i

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c o". tex t, one nac to take another look at the u.ly I d a t e.

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Li'? M :

I..'ould like to repl. to those

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17 ll cc:mients.

t 18 :

Cr.e of th-thincs that stri.ker ce with resrect i

t least some of thesc de'c3itions is that perhap:4 if 19 !!

to at

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- 1, very material later.

i, 2 1 We c.lread"1 spoke earlier today about the additiend j

1 i

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discovery in another proceeding which may in'/cl'/c as c.uch 4

as'ancther four wecks.

We are talking here aboeu a reduction

-5 of the'depcsition schedule from fcur days.a ucek to threc 6

dayc a' ucek,. which gets us into possibly a three to t.:ree and 1

7!

a. half weeks delay.

i 4

ii 3

Si We have also talked about delaying the prcceedings 'I i.

9 f.

-- possibly delaying the proceedings -- in front of tne t

p 10 q

. Snecial !: aster, in --

r-d 9

11l CifAIRS.11 RIGLSR:

Let me correct that:

I thought 12i I had indicated the special Master is going to ne proccoding e

28 we decace to ec arou: ;

1JJ witn nic accicien irrespective or unct i

t.

4 14 jl '

the metica.

i l

13 j, MR. CHAMOFF :

I cught to be cicar:

<;o did not

.k

.i 16l as%-for a delay in the Special c. aster's censideration.

17 t:3. LES5Y: -Okay.

' 18 So just lumping tha first two together, the 19

. additional disccvery, and the delay frca paring dcwn the

~j i.

'20 list of depositions, ;;e are talking roughly accu: ae ten wee %z;'

21

.and-that starts to oecer.e very T.aterial -- scce:hinc.the 22,

. Staff-adamantly uccid like to resist'if at all possible.

.23 I would like to reiterate my suggestien that perhaps for a particularsdeposition, that.wuce counse'. Of 24'

% J.,dercl Recoders. Inc.

25-one 'of.the five Applicants ccmpanies -- tr outside ccunsel I

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i for one of.: those coupanies, or a particular cor:pany, could 1

2(

stand in for'cne day a week.

i 3

MR. BERGER:

I might add, Mr. Hcuser haa conducted coor there.

4 cany of the depositiens; Mr. Ueynolds has not 5

.So there is no recuirement that Mr. Reynolds be there.

j

?

63 MR. REYUOLOS:

Mr. Rigler, cavhe one wav. to i

i

'7i ccmpromise this -- which is not the best of all possible i

81 worlds-.from my standpoint -- would be to work cut a schedule 1i 9l wherc we go on a four-day a week, and than three-days a 10!!

week, en alternate weeks; which would tean thAt ycu are only 1

i.

11 add inc., I believe.it works out to cne-four-dav. week at tne 121 e nd, be90nd the July 1.date.

i I

l o,.11 -.

e ruc in-wouie <j_m sou~ um aca m3 mu ' i.

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cou.yc stagger it, so t.nat insteac, c:. haring every aek a 14

_dn 15I four-dny week, Ne could work with a four-day week and the.r a

^

16 /

thre.e-day week,'and then a four-day ;eeh, on an alternate i.

17 basis.

And wncre va need ' to go beyond the. July 1 date, we l

18' just riay havn to go bs/ond it for a week.

'19 XR. LESSY:

Staff has a suggestion:

.If we have

~

L 20

-to slip the_deposicion beyend July 1, perhaps -- and it ia 21 somethinf the-Staff proposes -- if there c.rc going to be

'22 depositicas into the next week because they had to be resche-

' 23 duled dre tc ir:cneilable conflicts in schcdule, perhaps i.

24j Staff could-suggest that that shculd not_ impact cn the rest s J,Jeret 9eporters. tric.!

i 25; of-th7 schedule.

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In other words, we want to hold firm on the July 2{

l date; but if it is impossible to do that --

3l' CHAIRAA" RIGLER:

That certainly would be d

agreeable to the Boarc, because my recollection is the next i

1, I

5 party who is required to make a filing would be Staff, Justice,

I 6

and the City.

i 7

MR. LESSY:

I believe that would be Aucust 15.

I i

8!

We would be willing to do that if the slippage vere not mere 9

than a week, or at the most nine days.

10f But we really want to indicate that " pennies add

'II {

up to dollars".

l.

I2l CHAIRMAN RIGLER:

Host many weeks of depositions n

I 3 !.

do we have?

I4 MR. CHARSOFF:

Depositions are now scheduled Il be'. ween now and July 1.

l 16 CHAIRMAN RIGLER:

Isn't that about six weeks?

17 MR. CHARNOFF:

It seems like a long time.

It's 18 six, seven weeks; that's right.

4

^

19 MR.LLESSY:

In addition to that, Applicants have 20 a ccuple of oth'ers to notice.

As one of the pleadings indicates 21 Mr. Reynolds-indicated this morning, there may be an d

22 additional matter; and Staff may add to the list.

23 MR. GOLD 3 ERG:

Ycur Honcr, I think at this peint 24 l in time we should dc ncthing abcut changing dates that ede ol Recerters, Inc.l

.h

' 25 l j eopardice cur July 1 d ate.

I think if'the July 1 date is I

5 O

1153~

jrb 35 1,

. going to have to be. changed, it shculd cnly he the result i

l 2l of - --. despite supreme ef forts -

"you just can' t take that 3'

date."

4 I do not think we are in that situatica ecday, 5

and I think we ought to stick to the schedule that we have 6

proposed.

7 (The Board conferring.)

8 ClihIR'3AN RIGLER:

We have conferred.

9l The present rule of the Board is we will adhere c

10 h to the July 1 date, that there are seven weeks of depositions Il f remaining; and during tuo of those weeks, Mr. Reynolds may 12 request the other parties to deoose only for three days, so it 13' as-to give him partici relief on that.

14 Now, where are the extra days going to cene from?

15 Yc ntay find some of the witnesses presently scheduled are 16 not required, orcscne depositions nove more prcmptly than 17 others once ycu get involved in your questions.

18 So we are hoping you will make up those days; 19 this way it will give Mr. Reynolds a bit of relief -- not as 20 much as he has asked.

21 The Board is of the feeling thac Applicants has 22, known that this schedule had developed, and that it has 23-

. repeatedly advised the Cennissien cf the necessity for t

124i expediting'this proceeding.

So we hope that helps you at lear t j.

ate rederal Reporters, lec.

125

.a little bit.

l rw-t r

r~

l' 1154 jrb 36.

I MR. CHARNCFF:

Let ne just point out that 2l Applicant-knew there was an intensive schedule; Applicants i

3!

inl tha informal conversaticrs with Mr. Brand ta_kel abcut thrqe 4

days 4 week for depositions.

We so schefuled our 'iepositions.

5 It was the combined list of Justice and.the City 0!

that cane up.with a fcur-day week.

l 7!

CHAIRMAU RIGLOR:

You were surprised at their 8,

list?

i 9l MR. CHARNOFF:

Absolutely.

10!

And as I uould any, the two weeks help a li ttle

'i III bit; and I uculd request that if we can please accernedate 12 Mr. Reynolds' cc:apremise suggestien, which was ne can do it l

13 l on alternate weeks -- four days alternate weeks, three days -

14 that.would help considerably.

I 15 It just is a problem of acccraedating a 16 mushrooning workload; and, very frankly, we have any other I

17 number of URC cases that don' t reach conclusicns; and the 18 result is we are just in a terrible bind at the accent that 19 makes it extrenely difficult.

~

20 CHAIRMAN RIGL2R:

It's the conclusion in. this i

21 case the Board is driving for.

22 MR. CHARUCFF :

We have been enfeavoring all

'l 23' along to do that, but we are also gcing to try to do it with 24, scme reccgnition of the fact'everyhedy else has schedules; an2 AE.' ederal Reporters, it:c,I 25 we are kind.cf surprised,.very frankly, by the respense of li I.L

l 1155

.j rb - 37; l'

otherLparties, that they say we must have a fcur-day week 2

basis alliof a sudden, because-the other parties which have l

3' not been hurrying up until now, now suddenly are hurrying.

4 CHAIE!!d RIGLEY:

Let's not get intc, that.

.5 M2. CHARMOFF:

We really indicated a personal i

6' problem situation, sir.

We really would request that the 7'

Board see its way clear to at least recegnize the alternate 8

week approach.

That would allow some tolarable acccm=cdation I

i 9 ll of scine other activities that all of us have.

i

,10:

CHAIIE.:: RIGLE'l:

Okay.

l i

Tell ycu uhat we'll do, we'll give you three l

. 11 12l

-weeks out of the seven; and that wil.1 give ycu, in essence, 8

i, 13 your whole proposal.

14 But I urge all of you to try and ccepress these 15:

deposition -- and we are not slipping the July 1 date.

If 16

.you have to cene back to us the very last week cr.d ask for 17 one extra ' day or two e::tra days, we will consider that as an 18 individual ~ case.

19 But as of now, July 1 holds.

20 Im. L 5SY:

I am surprised that the listing handed 21 out by the_ Department of Justice and City of Cleveland were 22 very inclusive and very long.

Therefore, Staff is surprised 23 that AppAicaats are surprised.

24 En. BERG 2R:

I would like to. state there are 39 L:3. ederal Reporters, Inc.

1!5 nanes On the joint. list, and I~believe the conbined list hande:i l

Y

~

+

1156 f.sb 38 I

out,-had over 90 names on it.

There are many people we 2,

probably would like to depose, but it would just take too long.

I I

i MR. GOLDBERG:

Your Honor, with ti;is limitation of 3j I

d i-three days in three of-the weeks, I want to emphasine se 5;

are going to need the utmost cooperation frcm the Applicants 6

about having witnesses available.

76 MR. BE2GER:

I would also like to bring up a il 1

i 8 f point at this time that I think coincides with what we are 1

9h talking about.

10l This is my own view that Applicants continue i

11-

~ to cooperate or not cocperate as they have dcne while we were i

12i taking depositions, and I think that can cause substantial i

n 13!

delay in-the tahing of our depcsitions.

e.nd I wculd like j

l 1

14 !

to request that uhile -the Denartment Staf f and City are takinc. l

+

t ld the deposition that one member of the Board be available 16l certainly at all times for conference calls to iron out any i

17 problems we might have with taking depositions.

18 CHAI1GIKJ RIGLER:

I believe one member of the

-r 19 Board 1has been available at all times.

I don't think you'll

~

20; have any problem with that.

l

'21 MR. 3ERGER:

Okay.

I hcpe we vill not have to 22 call the Board, but, certainly, with the tight schedule in 23 cutting cut threa days of depositicas --

l

}

24 n2. LE33Y:

Staff would like the 3 card.to recenside an. ederol Res:orters. In.l 25l its original ruling in giving two weeks, not three, based on l

a r

y

14dl l

^irb 39 I

.the fact.that they really.woron't surprised.

And Mr. Brand-

~2!

made no commitments on - hehr.lf of the Government.

s 3l CHAIPMAN RIGLER:

We will adhere to our ruling.

4'l gg, g37.? OLDS:

Thank vou.

i 1

5 MR. CEAR:iCFF:

Thank you.

6

.CHAIRMA!'RICLER:

Any other problems?

7 IC?.. REYNOLDS:

May I ask a question? -- and that gces only to the matter that we earlier discussed in connectier 8

I i

9i with Mr. Mayben.

10 At that tire vo' indicated we had two witnesses who 11!

are'ncu located in California, and we did intend to depose i

t 12 the.t at some point.

I would imagine that that could occur.

F i

13' af ter the July 1 date withcut affecting any slippage in the 14l schedule -- unless scoobody has an objection to that, that is, I

15l vithout an.y slipcac,e in the other filing schedule?

I 16' Ent I just wender in view cf your ccm.T.cnt as to 17 the cutoff date whether that would be a problem that we should l

18 try to' arrange a trip to California sometime between now and 19 July 1st, if that becomes necessary.

I don't at.the mcment 20'

. think or know whether we can bring those two people here.

21 I have been told that that is not possible.

22 CHAIPl4AN RIGLER:

Who are these two people?

23 Ita.. REY:: OLDS :

They are Mr. Hen: hey and Mr. salser I l-t 24

-who were prior-.cmployees of the City.

Ah. edercl Repertersi Inc.,

25' Om. GOLD 3 ERG:

Uhy isn't it possible to bring ther i

I!

.I

m 8

g lLS8

1. ,rb40.

- 1li to Washington?

~

1 2j

.MR.

REY:: OLDS :

h'e will subpcena them and bring 3l

.then if we can.

I was hoping it could be arranged withcut J

4.

a subpoena.

S MR. LESSY:

Staff's feeling with. respect to that

'6 !,

is that initially we would move toward a Saturday date rather' 7

than locking to a post-July 1 deposition.

If a Saturday i

8t

~date cannot be arranged, or if there is -- if the schedule is 1

9 not ao accelerated by cancellation such -hat a sparc date 4

10!l ic picked up, then we would look to after' July.l.

4 11)

But the initial focus should be within the l

12 existing schedule.

J tr 13 '}

t.uncLui _ ttiu.2at:

1 tninr. we wculc ag-*

' ca-14'i

' Staff, try to find an onpty slot, or try to find a Jcturday.

l

'l IS I tia. REYNCLOS:

All right.

16 The only problem I have is that I would like to 17

' be sure that Applicants will have an cpportunity to depose l

18 these pecple and if, because they are en the West Coast and 19 are not available during the interin pericd, then we wculd 20

- like to cither, if necessary, so to California or bring them 21 here af ter that pericd without slipping the schedule.

22

.-CHAIR:IA:! RIGLER:

Let's go off the reccrd.

. 23 (Discussicn off the record.)

- 24 C:!AIrz: RIGLER:

Let's go back en'the reccrd.

A adero! Peperters, Inc.

25j

2. LESJY:

One point ue would like to bring up_

Y

,s y

n e

r-y+

J j

1159 drb 41 If

'iniconnection'with the July 1 dato, that is that we are 2

essentially conplete or have completed documentary discovery, 3

-and what'we are doing now is preparing a listing of those 4

documents which were marhel-for production at the Central 5

_ Repository, including documents with respect to which 6

request has been made; and trying to identify if there are 7

any missing documents.

oJ 1

EM There may be c very sr..e percentage of missing

-l 9 l - ' documents, and by that, maybe five or six missing dccuments.

10 In that event, if there are.nissing documents, and without 11l

.trying to assess fault-- there's been a lot of shipping and D

0 g

12; they may have been misplaced -- Staff would propose to give

. cavae uccuments to councei :or t.pplicent ana hope io.-

u it,c

.n l

14I we can be provided with them.

If not, we will apply to the 15, Daard, indicating that these dccuments were not fcund in the 16 Central-Repository.

17 Ue don't anticipata any large list, but there I

18' may be a faw -

as many as four or five.

119 CHAIRMA:I RIG;2R:

These could be identified?

- 20

.IR. LE55Y:

They can be readily identified.

To

' 21 date we haven't fcund them yet.

l 22 CHAIRMA:: RIGLER:

I don't anticipate proble.ms; L

. 23 I anticipate'we would cccperate with ycu,

' 24

!!R. BIRG22:

The Department has one point to

.. deral Repor+ers. tric.

. 25'I raise:

l

..:.u v

'; rb, 4 2 -

-I, I would just. like to note that the t.ranscript i

I

'2

.of a number of? depositions taken by Applicants has-indicate.1 3[

Applicants are cross-examining, and I believe it should'be i

4!

indicated that the Applicants are directly c::anining tne 5

depon2nts.

i i

-6l

..Some depositions say " direct", some say " cross",

'7I and I don' t know if the Board has given any instructions one

-e i

8 ! ~ way or another;.but it should be " direct examination".

I 1

9!

CHMRi'& RIGLER:

Anything else'

- I I

10

2. LESSY:

Just th.st Staff may take one or two II depositions it has not.not. iced.before.

We hope that a r?"#~"

e Il i of - dccument Fy material will Ir.ake that unnecessary, On the

.i

'13![ theory that the dccument speaka for itself.

We have el.ininate?.

1 6

I4 -

.11-but ono or t'vo depositions.

In t h.: cront they arice, 15 we will tr".to acccmscdate scheduling this within the existing g

16'l i

t; schedule.

~ '-

.e 4

i'l L

17 l-.-

CHAIICIAN RIGLER:

There being no further matters,

-l 18 i we will stand adjcurned.

19' (Unercupon,'at 12:07 p.c.,

Wednes.iay,

..20 14 Ma'i 1975, the hearing was On4 0 00_-

21 adjourned.)

Case #2 22

~~

23 4

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24

- w.r,<Jeroi Reporters, ici.

I I

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