ML19322E692
| ML19322E692 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, South Texas  |
| Issue date: | 04/16/1979 |
| From: | Mark Miller Atomic Safety and Licensing Board Panel |
| To: | HOUSTON LIGHTING & POWER CO. |
| Shared Package | |
| ML19322E685 | List: |
| References | |
| NUDOCS 8004020122 | |
| Download: ML19322E692 (5) | |
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EinED STATES OF AMERICA c ~ w. N. '"m.
NCCLEAR REGULATORY C010ESSION t/gy',~.
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In +e Matter of
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HOUSION LIGHTING & POER COMPMN, ET AL.
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Docket Nos. 50-498A (South Te:<as Project,
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50-499A Units 1 and 2)
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TEXAS UTILITIES GENEPATING CCMPM N, ET AL. )
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Docket Nos. 50-445A (Comanche Peak Ste::n Electric Station,
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50-446A Units 1 and 2)
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ORDER CONCEPNING STAFF'S KTTION TO CTPEL FUREHER ANSWEPS BY HOUSTUd LIGh' RING & POER CTPMN (April 16,1979)
On March 23, 1979, the Staff filed a tration to ccupel further answers,
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by Houston Lighting & Power Company (hTbP) to the Staff's first set of interrogatories. A response to this motion was filed by HIAP on April 11, 1979. It appears front the response that the parties have negotiated part of their differences, a practice whic.' the Board comr. ends.
LEAP has agreed that insofar as requested documents have been made available to other parties in various fora, such documents will be listed or described by document nt:Gers in response to the Staff's requests.
Such descriptions are to be made by Hf4P in regard to Interrogatories 1, 2, 4, 6, 8,15, 23(b), 32(b) and 33.
HILP is to furnish the Staff with an updated list and identification of doct:ments as to which it asserts a privilege. However, IEEP's objection is sustained as to work product imolving non-testifying outside
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consultants used by it in preparing for trial, in accordance with our t
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ruling at the Parch.20,1979 prehearing conference (Tr.183-85). This
- ruling applies to wrk product involved in document requests contained in Staff Interrogatories 1(d),1(e) and 33(c). The same rule shall apply to doct=ents generated by HIbP and other parties solely as part of negotiations to settle this proceeding. We encourage sett1 ment negotiations and will protect the efforts of parties toward that end (10 CFR 52.759).
The following doct=ent responses shall be made available for inspection by the Staff, and if copies are requested, the reasonable cost of copying shall be paid by the Staff:
Documents responsive to production requests contained in Staff Interrogatories 4(f), 8(d), 27, 37(a), 42(a),
i 43-45.
IRAP's objections are sustained to Staff Interrogatories 37(a) and 42(b), insofar as the Staff seeks to capel HILP to prepare a map that it does not possess and does not maintain in the normal course of business.
A party may require the production of an existing document for discovery purposes, but it cannot require the preparation of a docunent it merely wishes are in existence.
Further responses are to be furnished by IE&P to Interrogatories 1(g), 2 (d), 8 (c), 10(a)-(c), 11, 13, 15-17,. 20(a), 23(a), 23(c), 26,. 32(a),
1 32(b) and 49.
FOR THE ATGIIC SAFEIY AND LICENSING BOARD
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Dated at Bethesda Maryland M rshall E. Miller, Clairman 5 -
this16thdayofdpril1979.
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CR 5147-#14 366 DAV9fis.PL Excerpts 'from the Transcript of the PV June 1, 1979, Prehearing Conference CHAIRMAN MILLER:
What kinds of documents would you 1
2 be contemplating?
You could use the hypotheticals, but you 3
may not have some in certain areas.
Just what are you talking
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4 about?
5 MR. SAMPELS:
If I sit down and have a discussion with the NRC staff and we generated a document that includes 6
certain possible license conditions, we're discussing those 7
8 license conditions, of possible compromises in that area, I certainly think that falls within the concept of a document 9
prepared solely for the purpose of settlement discussions.
10 If I do that with the Department of Justice, I think 11 If I talk with the Department of 12 it falls within that category.
Justice -- which I did, with Ms. Harris -- and had a discussion 13
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14 with her. with respect to possible areas or approaches to set-tlement and I put a file memorandum as a result of that discus-15 And I should 16 sion, I think that f alls within that category.
17 think that a file memorandum that she might prepare --
18 CHAIRMAN MILLER:
I would have no difficulty in con-19 2ering that such documents, developed solely,for negotiat-20 ing purposes, should be protected under our order.
We decided to establish no blanket universal privilege, but "^ did shield, 21 at least temporarily, documents generated solely for negotia-22
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i tions subsequent to the entry, I think it was in January 1979, j
23 24 of the listrict court decision.
l Ace Fedirst Reporters, Inc.
25 MR. SAMPELS:
My point is:
If this is a temporary
367 or unwitting or mistaken protection, I am going to so advise my 1
client and we're not going to generate any documents, we're not 2
Because I think settlement going to have any such discussions.
3 aren't
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discussions, by their very nature, done in a fishbowl, I
4 settlement discussions, you might as well forget about it.
5 And I think, really, I frankly find it absurd to sug-6 that' suddenly, two weeks gest that this is'a temporary condition, 7
from now or a month from now, we will find that the order didn't J
8 really mean what it said, and we're really going to have to turn 9
all these documents over, to the extent there are any, to the 10 I find that incredibly inconsistent.with the encourage-11 world.
ment of settlement discussions and the promotion of a public 12 policy to settle, not litigate, controversies.
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14 CHAIRMAN MILLER:
Well, there are several things that 15 occur to the Board.
First of all, there doesn't seem to be any well-defined motion asking us to rescind, modify, and specify 16 17 aspects.or anything else, our two orders, which, together, give a certain measure of protectio n from produceability; that is to i
18 say, discovery of documents produced subsequent to the Texas 19 l court decision and generated solely for the purpose of negotiat-20 ing mat:ers that came about as a result thereof.
21 That's as far as we have gone.
We could not and have.
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We not given King's X in perpetuity and in all proceedings.
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'4 frankly can't' bind the courts.
We can't establish how long tee. Fed:rd Reporters, Inc.
they enforce any kind of absolute privileges.
So, obviously, 25 e
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these documents you are talking about have the effect, under our 1
order, of at this time being shielded from discovery.
Discovery 2
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in this. case, as you know, is not infininte.
That's as far as i
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4 we have gone.
4 Now, I don' t know what the big hullaballoo is about, 5
because we don't have the power and never purported to shield 6
absolutely nor to immunize forever from any type of inquiry, 7
8 including possibly our own, if it became material.
It would be 9 difficult to see how it does.
We don't know quite what the 10 issues are.
11 MR. JABLON:
Your Honor, if I may.
This arose out of i
12 a specific request at Brownsville.
All Brownsville asked and 13 all Brownsville.s asking this Board to rule upon --
14 MR. WOLFE:
Say it again, please.
15 MR. JABLON:
All Brownsville asked and all Brownsville is asking this Board to rule upon is the following proposition:
16 17 To the extent'that Gulf States claims that certain documents are 18 privileged as settlement discussions, first, we do not seek production of those documents or showing them to us or anybody 19 20 else.
21 Second, we simply asked that they provide a summary F
22 of documents as to which privilege is asserted.
The reason we 7
have requested that summary is not' because we question 'the good 23 24 faith of counsel or anybody else, but_we have a situation where 4 Au Federal Reporters,Inc, parties. appear to be talking concerning matters which one could 25 4..
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7 UNITED STAES OF RERICA C
NUCLEAR REGUIXiCRY CGUISSION g4y O 1973 > y<
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q In the Matter of
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c HOUSTON LING & PO',ZR CCMPKiY, Er AL.
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Docket Nos. 50-498A (South Tey.as Project,
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50-499A TMei Units 1 and 2)
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TEXAS UfILITIES GEEPAIING COMPX;Y, Ef AL. )
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Docket Nos. 50-445A (Ccmuche Peak Stean Electric Statica,
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50-446A Units 1 and 2)
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Order Rezardinz Discoverv Moticns (May 7,1979)
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The Staff filed a motion on April 19, 1979 asking the Board to reccasider four (4) areas of its Order of April 16, 1979, in connection
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with the Staff's motica to comoel further answers by HILP. The latter cc=pany filed its response to the motion for reconsideration on Anril 30, 1979.
_ygg (1) The Staff asked that indexing be provided for docu:nents previously rude available in response to Interrogatories 3, 5, 7 and 31. HELP has
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agreed to this request, so no ruling is required.
(2) The Staff seeks the production of studies prepared by ncntesti-fying outside consultants. The Board has ruled that the use by counsel of censultants not to be called as witnesses is protected as part of an attorney's trial preparation which is not subject to discovery (Tr.185).
w However, a different rule obtains as to the studies or analyses of others
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which a witness has used or will use in the preparation of his testircny or studied for cross-exxdnation or other testimonial purposes. Such
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studies or docurents shculd be produced, and PlAP has agreed to do so, a-.--.
subject to one exception. That exception relates to documents a corporate officer has reviewed in his capacity as an officer of a company involved in litigation, but which he does not intend to rely upon in his testimony.
This exception is valid and will be sustained.
(3) The Board adheres to its ruling protecting documents generated after the District Court trial and solely in connection with settlenent e m.
negotiations, as necessary to encourage and protect settlement negotiations.
(4) The Board adheres to its ruling that Ef.AP is not regaired to create transmission nnps which it neither possesses nor generates in its normal cause of business. The cited requirements of transforming cczputerized data into printouts, or the translation of foreign largnge documents, are inapposite to the Staff's request.
It is so ordered.
FOR THE ATOMIC SAFEIY AND LICENSING BOARD
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MarshallE.'Oiller, Chairman (O
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Dated at Bethesda, Maryland s
this 7th day of May 1979.
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