ML19329C261

Minutes of DC Hjelmfelt 750610 Telcon W/Counsel:Dv Rigler (Aslb),Wb Reynolds (Applicant),Mg Berger (Doj),J Rutberg (NRC) & RM Firestone (State of Oh) Re Ruling on Identity of Persons Who May Be Present During Depositions

ML19329C261
Person / Time
Site:	Davis Besse, Perry
Issue date:	06/12/1975
From:	Hjelmfelt D CLEVELAND, OH, GOLDBERG, FIELDMAN & LETHAM, P.C.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19329C262	List: ML19329C261 ML19329C266
References
NUDOCS 8002120975
Download: ML19329C261 (10)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter Of )

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The Toledo Edison Company and ) Docket Nos. 50-346A The Cleveland Electric Illuminating ) 50-440A Company ) 50-441A (Davis-Besse Nuclear Power Station )

Unit 1) )

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The Cleveland Electric Illuminating )

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Company, et al. , )

(Perry Nuclear Power Plant )

Units 1 and 2) )

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MINUTES OF CONFERENCE CALL WITH BOARD CHAIRMAN ON JUNE 10, 1975 On Tuesday, June 10, 1975 counsel for the City of Cleveland initiated a conference call at 10:00 A. M. Participants in the conference I call were: Licensing Board Chairman Douglas V. Rigler; Mr. William B.

Reynolds, counsel for Applicants; Mr. Melvin G. Berger, counsel for Department of Justice; Mr. Joseph Rutberg, counsel for Nuclear Regulatory Commission Staff; Mr. Richard M. Firestene, counsel for the State of Ohio; and Messers Wallace E. Brand and David Hjelmfelt, counsel for the City of Cleveland.

Mr. Brand stated that the purpose of the conference call was to obtain a ruling from the Board regarding the identity of persons who may

.be present during the taking of depositions. Mr. Brand stated that in pre-vious depositions it had been agreed that each party taking a deposition may be assisted by an expert even if that expert may subsequently appear as a witne s s. Pursuant to that agreement, Cleveland had not objected to the 8002120fpg

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presence of Dr. Joe Pace, an economist with NERA, during the depo-sition of Mr. Dumbrys. Mr. Brand stated that during today's depositions of CEI personnel, Cleveland proposed to have Mr. Cristell attend. Now Mr. Reynolds wanted to extract an agreement that if the party taking the deposition had other persons present the party representing deponent may also have other persons in attendance. Mr. Brand stated that there was no basis for extracting such an agreement.

Mr. Reynolds responded that his position was as Mr. Brand had stated. The parties had previously agreed to the presence of experts.

Mr. Cristell is not an expert but a fact witness.

Chairman Rigler asked Mr. Brand how he would be assisted by Mr. Cristell?

Mr. Brand answered that Mr. Cristell works in marketing for MELP and would assist in framing questions ai.out sales and marketing.

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, Mr. Reynolds stated that this deponent does not work in sales and l marketing. He also pointed out that he was not proposing the attendance of anyone scheduled for deposition prior to that person's being deposed.

l Chairman Rigler then asked what would be the purpose of the attendance of the people Mr. Reynolds wanted to have attend the depositions ? l l

Mr. Reynolds stated that such persons would assist him in cross- l l

exarnination, j 1

Mr. Berger stated that Mr. Reynolds had refused to go ahead with the depositions until the conference call was made. As a result the parties had lost about 50 minutes of deposition time.

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Mr. Brand stated that he was concerned that the other persons Mr. Reynolds mignt bring to the deposition would confer with the deponent during intermissions.

Mr. Reynolds stated he would agree to insulate the witness from all but his attorney.

Mr. Brand stated that he believed it was a bad practice.

Mr. Rigler said that lawyers should do the deposing. Questions should not be framed by the parties' employees with the lawyers acting merely as conduits. He said that he would not permit anyone to be present to frame questions. He said that he would permit Mr. Cristell to attend.

CEI might also have non-witness personnel in attendance but they would be prec!uded from discussing the depositions with future deponents. Those who have already been deposed may not confer regarding the depositions with those yet to be deposed.

Messers Brand and Berger raised an objection to Mr. Hauser (CEI corporate solicitor) assisting Mr. Reynolds in preparing future witnesses by talking to them about the subject matter of other depositions. Mr. Hauser j has attended many of the depositions and should not be permitted to discuss the substance of earlier depositions with future witnesses.

Mr. Reynolds questioned why Mr. Hauser should be precluded from doing what he would be able to do himself.

Chairman Rigler noted that Messers Brand and Berger could ask whether the witnesses' memory had been refreshed. He stated that he was somewhat convinced by Mr. Reynolds.

Mr. Brand pointed out that attempts to discover whether a witness's memory had been refreshed might be precluded by claims of attorney-client privile ge.

Chairman Rigler stated that he would apply his order to Mr.. Hauser until he could confer with the other Board members and inform the pa rties of the result during a later conference call.

Mr. Brand asked whether prospective deponents were excluded by the Chairman's order.

Chairman Rigler replied that they were. He stated Mr. Hauser should not talk to future witnesses pending further ruling by the Board.

Mr. Berger noted that the NRC staff has considered deposing Mr.

Greenslade and asked whether te ruling applied to Mr. Greenslade also.

Chairman Rigler said that since Mr. Greenslade was not presently noticed for deposition his ruling would not be applied to Mr. Greenslade.

Thereupon the conference call was recessed until 4:30 P. M. The conference call resumed without Messers Firestone and Rutberg pursuant to agreement of those parties.

Chairman Rigler read the following statement:

BOARD'S RULING ON WITNESS EXCLUSION RESULTING FROM TELEPHONE CONFERENCE CALL OF JUNE 10, 1975 The parties made inquiry with respect to the status of Mr. Hauser, an attorney-employee of CEI who has entered an appearance on behalf of CEI in these proceedings. Mr. Hauser has been noticed for deposition. 1 He also has been attending depositions of other CEI witnesses and counsel  ;

I for Applicants (Mr. Reynolds) indicated an intent on the part of Mr. Hauser to assist in the preparation of CEI witnesses for forthcoming depositions.

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The Board, relying for guidance on the recently promulgated Federal Rules of Evidence, rules as follows:

As suggested by Rule 615 relating to exclusion of witnesses and at the request of the parties, all potential witnesses shall be excluded from depositions so that they cannot hear the testimony of other witnesses.

With respect to Mr. Hauser, however, we note exception two to the Rule which provides that an officer or employee of a party which is not a natural person designated as its representative by its attorney may not be excluded.

Should Mr. Reynolds designate Mr. Hauser as the officer or employee covered by the provisions of exception two, the Board would not order his exclusion.

A subsidiary question relates to the extent to which Mr. Hauser may assist in the preparation of witnesses yet to be deposed. We note that Rule 612 permits examination with respect to documents used to refresh memory before testimony. Accordingly, other parties may inquire of CEI witnesses with respect to writings examined in preparation for deposition. With respect to transcripts of depositions from witnesses previously deposed, it appears contrary to the intent of Rule 615 to permit yet to be deposed witnesses access to this testimony. Weinstein's Evidence. Vol. 3,1615 [1] at 615-6, fn 9 (19'T5 ed. ) This Rule applies equally to outside or internal counsel in their preparation of witnesses for deposition. The Board construes the Rule broadly enough to cover paraphasing of questions contained in previous trans cripts. The intent of the Rule is to prevent the witness from being influenced or altering his testimony to conform to testimony of another witne s s. In their preparation of witnesses all counsel shall adhere to the

spirit of this Rule.

In view of the provisions of Rules 612 and 615 and the discussions above, the Board sees no purpose in refusing to permit Mr. Hauser to assist in the preparation of CEI witnesses for future depositions.

The same rules will apply with equal force to other internal counsel representing Applicants and indeed to the other parties to these proceedings in the event any of their witnesses are subject to additional depostion.

Messers Reynolds, Berger and Brand all stated the Board's ruling was clear.

Mr. Berger stated that Mr. Hauser's deposition was scheduled for June 20,1975 and asked whether the Master will have completed his review of claims of privilege by then.

Chairman Rigler said that the Master has nearly completed his review.

The Master was delayed by illness but hopes to have some report by the end of this week.

Mr. Brand raised a question with regard to the use of proprietary documents during depositions. l Chairman Rigler referred the parties to the Board's protective order.

He stated that if proprietary documents were used during depositions that those portions of the depositions would be sealed.

Mr. Reynolds stated that the taking of depositions of MELP witnesses was nearly completed and that MELP witnesses had been directed not to  !

respond to questions concerning proprietary information. He stated that MELP had agreed to provide such information separately but had not done so. He suggested that it might be necessary to recall some MELP witneases.

Chairman Rigler again referred to the Board's earlier order and said that no other ruling was required because at present Mr. Reynolds

.was simply a'sking for an advisory opinion.

Respectfully submitted, c- e lLltM Y Y, f David C. Hjel felt Goldberg, Fieldman and Hjelmfelt 1700 Pennsylvania Avenue Washington, D. C.

Telephone (202) 659-2333 Attorney for City of Cleveland, Ohio June 12,1975 l

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CERTIFICATE OF SERVICE I hereby . certify that service of the foregoing Minutes of Conference Call with Board Chairman on June 10, 1975 has been made on the following parties listed on the attachment hereto this 12th day of June,1975, by depositing copies thereof in the United States mail, first class or air mail, postage prepaid.

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David C. Hjelinprft /

Attachment i

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ATTACHMENT Atomic Safety and Licensing Board Jon T. Brown, Esq.

U. S. Nuclear Regulatory Commission Duncan, Brown, Weinberg & Palmer Washington, D. C. 20555 Suite 777 1700 Pennsylvania Avenue, N. W.

Mr. Frank W. Karas, Chief Washington, D. C. 20006 Public Proceedings Branch Office of the Secretary John C. Engle, President U. S. Nuclear Regulatory Commission AMP-0, Inc.

Washington, D. C. 20555 Municipal Building 20 High Street Douglas V. Rigler, Esq. Chairman Hr. milton, Ohio 45012 Atomic Safety and Licensing Board Foley, Lardner, Hollabaugh Melvin C. Berger, Esq.

and Jacobs Joseph J. Saunders, Esq.

Schanin Building Steven Charno, Esq.

815 Connecticut Avenue, N. W. Antitrust Division Washington, D. C. 20006 Department of Justice Pe t Office Box 7513 John H. Brebbia, Esq.

Washington, D. C. 20044 Atomic Safety and Licensing Board Alston, Miller & Gaines William T. Clabault, Esq.

1776 K Street, N. W. David A. Leckie, Esq.

Washington, D. C. 20006 Department of Justice

~ Post Office Box 7513 John 14. Frysiak, Esq. Washington, D. C. 20044 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Gerald Charnoff, Esq.

Washington, D. C. 20555 Shaw, Pittman, Potts & Trowbridge 910 17th Street, N. W.

TJenjamin H. Vogler, Esq. Washington, D. C. 20006 Joseph Rutberg, Esq.

Office of the General Counsel Frank R. Clokey, Esq.

Regulation Special Assistant Attorney General U. S. Nuclear Regulatory Commission Room 219 - Towne House Apartments Washington, D. C. 20555 Harrisburg, Pennsylvania 17105 Robert J. Verdisco, Esq. Thomas J. Muns ch, Jr. , Esq.

Roy P. Les sy, Jr. , Esq. General Attorney Office of the General Counsel Duquesne Light Company Re gulation 435 Sixth Avenue U. S. Nuclear Regulatory Commission Pittsburgh, Pennsylvania 15219 Washington, D. C. 20555 David McNeil Olds, Esq.

Abraham Braitman, Esq. John McN. Cramer, Esq.

Office of Antitrust and Indemnity Reed, Smith, Shaw & McClay U. S. Nuclear Regulatory Commission Fost Office Box 2009 Washington, D. C. 20555 Pittsh. rgh, Pennsylvania 15230

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• ATTA( rIMENT (Continusd)

John R. White, Esq. Leslie Henry, Esq.

Thomas A. Kayuha, Esq. Fuller, Henry. Hodge & Snyder Ohio Edison Company 300 Madison Avenue 47 North Main Street Toledo, Ohio 43604 Akron, Ohio 44308 John Lansdale, Jr. , Esq.

Pennsylvania Power Company - ,

Cox, Langford & B rown 1 East Washington Street 21 Dupont Circle, N. W.

New Castle, Pennsylvania 16103 Washington, D. C. 20036 Lee C. Howley, Esq. Donald H. Hauser, Esq.

Vice President and General Counsel Corporate Solicitor The Cleveland Electric Illuminating Co. The Cleveland Electric Illuminating Co.

Post Office Box 5000 Post Office Box 5000 Cleveland, Ohio 44101 Cleveland, Ohio 44101 Alan S. Rosenthal, Chairman Richard S. Salzman, Chairman Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.

U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commis sion Washington, D. C. 20555

• Washington, D. C. 20555 Dr. John H. Buck William C. Parler Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.

U. S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Wa s hington, D. C. 20555 Dr. Lawrence K. Quarles Dr. W. Reed Johnson Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.

U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commis sion Washington, D. C. 20555 Washington, D. C. 20555 Edward A. Matto Karen H. Adkins Assistant Attorney General Richard M. Firestone Chief, Antitrust Section Assistant Attorneys General 30 East Broad Street, 15th floor Antitrust Section Columbus, Ohio 43215 30 East Broad Street, 15th floor Columbus, Ohio 43215 Christopher R. Schraff, Esq.

Assistant Attorney General Howard K. Shapar, Esq.

Environmental Law Section Executive Legal Director 361 East Broad Street, 8th Floor U. S. Nuclear Regulatory Commission Columbus, Ohio 43215 Washington D. C. 20555

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