ML19329C805
| ML19329C805 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 12/12/1974 |
| From: | Charno S JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002200764 | |
| Download: ML19329C805 (8) | |
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UNITED STATES OF AMERICA t
ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AMD LICENSING BOARD In the Matter of
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The Toledo Edison Company
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The Cleveland Electric Illuminating
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Docket No. 50-346A Company
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(Davis-Besse Nuclear Pow'r Station)
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The Cleveland Electric Illuminating
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Docket Nos. 50-440A Company, et al.
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and 50-441A (Perry Plant, Units 1 and 2)
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MOTION BY THE DEPAETMENT OF JUSTICE TO QUASH OR MODIFY APPL.ICANTS' SUBPOENAS AND TO EHFORCE THE SEQUEHCE AND TIMING OF DISCOVERY ORDERED BY THE LICENSING BOARD The Department of Justice hereby moves, pursuant t'o Rule 2.720(f) of the Rules of Practice of the Atemic Energy Commission.
1 10 C.F.R.
- 52. 720 (f), the Atomic Safety and Licensing Board (here-inafter " Licensing Board") in the above-styled proceeding (1) to i
quash or, in the alternative, modify Applict.nts' subpoenas and
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(2) to enforce the sequence and timing of discovery, as set forth i I l.i in the Licensing: Board's " Schedule of Proceedings" issued j,
November 4, 1974, by requiring Applicants to delay the taking of
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depositions until after Applicants have fully complied with the l
l1 discovery requests of the Department of Justice (hereinafter
" Department").
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On August 23, 1974, the Department and the AEC Regulatory j
Staff filed their " Joint Request of the AEC Regulatory Staff j
and the U.S. Department of Justice for Interrogatories and for i
Production of Documents" (hereinaf ter " Joint Reques t").
I On November 4, 1974, the Licensing Board issued the most recent revised schedule for the stages of this proceeding, which provided that Ncvember 30, 1974, was to be the date for completion of all documentary discovery and responses to interrogatories. 1/
2 In addition, the Licensing Board set December 1, 1974, as the date on which the taking of depositions was to begin.
Simply put, this schedule provided that the taking of depositions would not begin until all documentary discovery was completed.
On December 2, 1974, Applicants submitted their responses to the Joint Request.
Ahplicants (1) failed to produce any of the documents described in the Joint Request, (2) refused to perform certain activities related to document production, and (3) supplied unnotarized, evasive and incomplete answers to inter-I rogatories propounded in the Joint Request.
Consequently, the Department filed its December 9, 1974 " Motion.
to Compel j
Discovery and to Revise Time Schedule to Take Into Account i
j Applicants' Noncompliance", which is presently awaiting disposi-
!j tion by the Licensing Board.
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Because November 30, 1974, was a Saturday, the actual date j
upon which discovery responses were made was December 2,1974.
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On December 6, 1974, Applicants filed a " Notice of Deposi-tion" for nine different individuals during the week of January 6-10, 1975, and an " Application for Subpoenas" for four of the nine individuals noticed.
The Department objects to these subpoenas and to the taking of depositions by Applicants in several respects.
First, Appli-cants have not complied with the Commission's Rules governing discovery and the Licensing Board's Oct.ober 11, 1974, " Order on Objections to Interrogatories and Document Requests," as explained in the Department's Motion to Compel.
Applicants ' failure to properly respond to the Joint Request frustrates the intent of the Licensing Board in setting the schedule for this proceeding
'so that document discovery would precede oral depositions.
To allow Applicants to proceed in this manner would unduly prejudice the Department.
The Department must have a reasonable period of time to review and evaluate Applicants ' responses concerning the City of Clevel.and before Applicants take depositions of the City's officers, employees and experts.
Without proper responses and time to examine and evaluate them, the Department might well be unable to comprehend the import and natt re of significant portions of Applicants' direct examination.
Constquently, the Department would be unable to conduct meaningful cross-examination.
Further, the. Department would be prejudiced by the " head-start" in trial preparation which Applicants would secure if they were allowed to commence the taking of depositions without 3
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t properly responding to the Joint Request.
To place the Depart-i ment in such a position would be completely unfair, since the Department is in no way to blame for Applicants' refusal to properly produce documents and to provide complete and candid i
answers to interrogatories.
Since documentary discovery has not been completed due to Applicants' substantial noncompliance with the Joint Request, Applicants should not be allowed to pro-ceed to the next stage of the prehearing schedule -- the taking of depositions -- in advance of and to the prejudice of the
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Department.
Rule 2. 720(f) provides that the Licensing Board may quash or modify a s 20poena if it is unreasonable.
As heretofore indicated, the taking of depositions by Applicants at this time would be both unreasonable and prejudicial.
Jor the foregoing reasons, the Department urges the Licens-ing Board to (1) quash or, in the alternative, modify Applicants' subpoenas and (2) direct Applicants not to take any depositions until thirty days 2/ after they have submitted full and complete answers to interrogatories, and have produced documents and i
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A period of thirty days was chosen because Applicants have presently scheduled their depositions to begin on January 6, l1 1975, roughly thirty days after the originally scheduled ter-I mination of documentary discovery.
Thus, the Department seeks only that same period of time which it would have had if Appli-i 1
2 cants had submitted complete and candid responses to the Joint Request on December 2, 1974.
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i performed related activities as required by the Commission's Rules and the Licensing Board's October 11, 1974, Order.
Respectfully submitted, V. wy./4
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STEVEN M. CSULNO tClc% sd d'y4/
MELVIN G. 3ERGER Attorneys, Antitrust Division Department of Justice Washington, D.C.
20530 December 12, 1974 t
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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The Toledo Edis ' "
.pany
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The Cleveland F'
- I'.luminating
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Docket No. 50-346A Company
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(Davis-Besse Nuc.
ar Station)
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The Cleveland Electric Illuminating
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Docket Nos. 50-440A Company, et al.
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and 50-441A (Perry Plant, Uni:s 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of MOTION BY THE DEPARTMENT OF JUSTICE TO QUASH OR MODIFY APPLICANTS' SUBPOENAS AND TO ENFORCE THE SEQUENCE AND TIMING OF DISCOVERY ORDERED BY THE LICENSING BOARD have been served upon all of the parties listed on the attachment hereto by deposit in the United States mail, first class or airmail, this 12th day of December 1974.
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Steven M.
Charno Attorney, Department of Justice Antitrust Division l
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ATTACHMENT John B. Farmakides, Esq.
Roy P. Lessy, Jr., Esq.
Chairman Benj amin H. Vogler, Esq.
Atomic Safety and Licensing Lee S. Dewey, Esq.
Board Office of the General U.S. Atomic Energy Commission Counsel Washington, D.C.
20545 U.S. Atomic Energy Commission Washington, D.C.
20545 John H. Brebbia, Esq.
Atomic Safety and Licensing Gerald Charnoff, Esq.
Board William Bradford Reynolds, Esq.
Alston, Miller & Gaines Shaw, Pittman, Potts &
1776 K Street, N.W.
Trowbridge Washington, D.C.
20006 9'10 Seventeenth Street, N.W.
Douglas Rigler, Esq.
Hollabaugh & Jacobs Lee C. Howley, Esq.
Suite'817 Vice President & General Counsel Barr Building The Cleveland Electric 910 Seventeenth Street, N.W.
Illuminating Company Washington, D.C.
20006 Post Office Box 5000 Cleveland, Ohio 44101 Atomic Safety and Licensing Board Panel Donald H. Hauser, Esq.
U.S. Atomic Energy Commission Corporate Solicitor Washington, D.C.
20545 The Cleveland Electric Illuminating Company Frank W. Karas Post Office Box 5000 Chief, Public Proceedings Cleveland, Ohio 44101 Staff Office of the Secreta'ry J7hn Lansdale, Jr., Esq.
U.S. Atomic Energy Commission Cor., Langford & Brown Washington, D.C.
20545 21 Dupont Circle, N.W.
Washington, D.C.
20036 Abraham Braitman Office of Antitrust and Chris Schraff, Esq.
Indemnity Office of Attorney General U.S. Atomic Energy Commission State of Ohio Washington, D.C.
20545 State House Columbus, Ohio 43215 Herbert R. Whitting, Esq.
Robert D. Hart, Esq.
Dwight C. Pettay, Jr., Esq.
Law Department Assistant Attorney General City Hall Chief, Antitrus t Section Cleveland, Ohio 44114 30 East Broad Street 15th Floor Reuben Goldberg, Esq.
Columbus, Ohio 43215 David C. Hjelmfelt, Esq.
1700 Pennsylvania Avenue, N.W.
Suite 550 Washington, D.C.
20006 l
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J John R. White, Esq.
Executive Vice Preside;.t Ohio Edisor Company 47 North Main Street Akron, Ohio 44308 David M. Olds, Esq.
Reed, Smith, Shaw & McClay 747 Union Trust Building Pittsburgh, Pennsylvania 15219 Mr. Raymond Kudukis Director of Utilities City of Cleveland 1201 Lakeside Avenue Cleveland, Ohio 44114 Wallace L. Duncan, Esq.
Jon T. Brown, Esq.
Duncan, Brown, Weinberg
& Palmer 1700 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Leslie Henry, Esq.
Fuller, Henry, Hodge &
Snyder 300 Madison Avenue Toledo, Ohio 43604 Deborah Powell Highsmith, Esq.
Assistant Attorney General Antitrust Section 30 East Broad Street 15th Floor-Columbus, Ohio 43215 I
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