ML19323A570

Motion to Compel Testimonial Questions Answered by NRC Expert Witness Rh Hartley.Discoverability of Questions Established on Pages 421-423 of Prehearing Conference Transcript Re ASLB 800625 Order

ML19323A570
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	03/27/1980
From:	Franklin W BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19323A569	List: ML19323A568 ML19323A570 ML19323A571 ML19323A572 ML19323A574
References
NUDOCS 8004210392
Download: ML19323A570 (4)

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t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) l

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

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(South Texas Project, ) ,

Units 1 and 2) )  !

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

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(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

MOTION OF HOUSTON LIGHTING & POWER COMP?NY TO COMPEL PRODUCTION BY NRC STAFF OF TESTI;"NIAL QUESTIONS ANSWERED BY EXPERT WITNESS ROBERT H. HARTLEY  ;

I On March 17, 1980, following informal discussions.with counsel for Houston Lighting & Power Company (" Houston") ,

the NRC Staff (" Staff") produced a twenty-five page docu-ment and cover memorandum prepared by its expert engineering witness, Robert H. Hartley. (A copy of the document is attached to this Motion as Exhibit A.) Upon inspection, it became obvious to Houston that this document consists of testimonial answers to unidentified questions. For example, page 20 contains the single word "Yes" three times as three separate paragraphs. Similar examples occur throughout the  !

document. The Staff has never produced these questions.

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Furthermore, the layout of paragraphs in the document containing Mr. Hartley's answers suggests to Houston that either questions or question numbers were deleted from the document before its production by the Staff.1! On March 19, counsel for Houston contacted the Staff to ob'tain an unexpurgated version of the document. Upon being told by Staff counsel on March 20 that the document might not have contained questions, counsel for Houston additionally requested a copy of the corresponding questions whether or not they appear in the same I document as the answers. 2/ The Staff has yet to produce the '

questions or the unexpurgated answers , and this motion follows.

This Board has established a wide scope of discovery con- l l

cerning the work of expert witnesses: j l

Testifying expert witnesses are not immunized from discovery by the f orm of their studies or proposed testimony. Neither are the witnesses immunized from discovery because of the role played by counsel in such analyses.

Order Granting Production of Draf t Testimony of Expert Witness, October 23, 1979, at 2. Questions to which a testifying expert has responded in writing as part of his preparation f or testi-fying in this case are clearly to be discovered under the Board's October 23 Order. The Board indeed has explicitly so held in the prehearing confers <. cf June 1,1979. (Tr. 423).

1/ In its March 17 producticn, the Staff did not claim privi-lege with respect of any portion of this document. On March 18, upon inquiry, Ms. Anne Ewing, an NRC paralegal acting at the direction of Staff counsel, . informed counsel for Houston that deletions were made in accordance with the Board's June 25, 1979, Order.

-2/ Letter dated March' 20, 1980, from William J.-Franklin, counsel for Houston, to NRC Staff counsel Michael B. Blume (attached as Exhibit B to this Motion).

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As the produced documents indicate, Mr. Hartley's work in this case has included answering numerous questions. The answers, by themselves, simply make little sense. Only upon i

being furnished with a copy of the questions as well er the answers can Houston begin to assess Mr. Hartley's analysis and conclusions. Thus, production of the questions is essential  ;

to Houston's preparation for Mr. Hartley's deposition, now scheduled for April 7. i i

In refusing to produce the questions answered by Mr.  ;

Hartley, the Staff apparently relies on the Board's June 25, l 1979 Order. That order holds that questions prepared by Staff counsel for an expert witness but not yet answered by him are I protected from discovery as work product. At this point Houston has never been informed who prepared the unproduced  ;

questions. If anyone other than Staff counsel posed the ques-tion, reliance on the June 25th Order is obviously groundless. l In any event, the Staff's reliance on that order here is misplaced. l The June 25th Order resulted from the June l, 1979, pre ,

hearing conference. As cited in the order, the discoverability of*

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unanswered questions prepared by counsel is discussed on pages 421 through 423 of the transcript (attached as Exhibit C to this motion). However, the discoverability of these questions once the expert had answered them is clearly established on page 423:

CHAIRMAN MILLER: So they are simply a list of questions at this time.

MR. LESSY: Those questions clearly -

reveal counsel's thinking. '

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CHAIRMAN MILLER: We think that is it stops at that point or at that point, we think they would be work product. I mean, its your product. ,

So long as you don't directly or  ;

indirectly hop on that witness stand, fine.

Now, there ought to be a question '

as to what is done thereafter. But I take that --

I mean, if he answers them, he can be asked about them. Or if he does it in writing, he can be asked to produced the documents.

(Emphasis added. ) Thus, whether the questions were prepared by counsel, and whether they appear on the same document as the answers, the Board's rulings clearly hold that the ques-

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tions which Mr. Hartley answers are discoverable. For this l reason, the NRC Staff should be compelled to produce an unex- l l

purgated version of Mr. Hartley's answers and produce the questions which Mr. Hartley answered, if not appearing thereon.

Respectfully submitted,

.A e_ _

WilliamJ.F[anklin Attorney for Houston _ Lighting &

Power Company OF COUNSEL:

BAKER & BOTTS 3000 One Shell Plaza Houston, Texas 77002 LOWENSTLIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Dated: ' March 27, 1980 s

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