ML19329D269
| ML19329D269 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 02/09/1976 |
| From: | Charno S, Urban J JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002260873 | |
| Download: ML19329D269 (12) | |
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t; tu UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD I
In the Matter of 7
The Toledo Edison Company and
)
The Cleveland Electric Illuminating
)
Docket Nos.f 50-346A Company
)
50-500A (Davis-Besse Nuclear Power Station,
)
50-501A Units 1, 2 and 3)
)
)
The Cleveland Electric Illuminating
)
Docket Nos. 50-440A Company, et al.
)
50-441A (Perry Nuclear Power Plant,
)
Units 1 and 2)
)
MEMORANDUM OF THE DEPARTMENT OF JUSTICE IN SUPPORT OF THE ADMISSION OF DEPOSITIONS INTO EVIDENCE The Department of Justice submits this Memorandum of points and authorities concerning the use of portions of depositions in evidence, in order to summarize the applicable legal principals for the convenience of the Licensing Board and the parties.
The admis-sion of portions of the depositions of Applicants' of ficers, direc-tors and employees is proper in this proceeding, both under the Nuclear hogulatory Commission Rules of Prcctice (hereinafter Rules of Practice) or, by analogy, under the Federal Rules of Civil Procedure (hereinafter Federal Rules) and the Federal Rules of 8 0 02 260 f;P3 A
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a Evidence. 1/
The admission of deposit ions into evidence will substantially expedite this hearing by aliminating the need f or the Licensing Board to hear lengthy testimony by a substantial number of uitnesses when their testimony under oath and subject to cross-examination may be placed directly into the record.
Admission of deposition evidence Eill not ' intro 6uce irrele-vant or immaterial evidence into the record.
As provided for under Section 2.740a(g) oi the Rules of Prectice (10 C.F.R. 52.740a(g)) and Rule 32 of the Federal Rules, the Department intends to offer only those portions of depositions uhich it considers directly relevant to its case. 2/
Moreover, under the Rules of Practice and by analogy under Rules 32(e) and 32(b) of the Federal Rules, it is clear that the Board may reject offered portions of depositions in the same manner in which it i
may reject any other type of oral or written evidence.
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The use of deposition evidence in an NRC proceeding is not Uithout precedent.
In In The Matter of The Louisiana Power and Light Comoany (Waterforo Steam Electric Generating Station, Unit No. 3), Docket No. 50-382, Prehearing Conference Order, CCH 1974 Atom. En.
L.
Rep. 111,710.08 (January 23, 1974), the Licensing Board held:
To the extent that the Federal Rules of Civil Pr o-cedure provide for the use of f ormal depositions in
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court proceedings (cf., Fule 32 FRCP), such use will be permitted in this proceeding.
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5ection 2.740a(g) of the Rules of Practice states that "If only part of a deposition is ef fered in evidence by a party, any other party may introduce any other parts."
Thus, the Rules of Practice allow for the admission of portions of a deposition while at the same tim'e af fording complete protection to the party against whom the deposition is offered.
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The Rules of Practice Provide for the Admission of Deposition Evidence The HRC Rules of Practice contain a broad statement con-cerning the admissibility of evidence.
They provide that:
Only relevant, material and reliable evidence which is not unduly repetitious will be admitted.
Immaterial or irrelevant par ts of an admissabic docurent will be cegregated and excluded to f ar as is practicable.
(NRC Rules of Practice 52.743(c)).
This regulation is derived, of course, frc
'the statutory standard for admissibility of evidence in administrative pro-ceedings contained in the Administrative Procedure Act:
Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for exclusion of irrelevant, immaterial, or unduly repetitious evidence.
A sanction may not he imposed or rule or order issued except on consid-eration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence.
5 U.S.C. S556(6).
Thus, provision is made for the rejection of ir r elevan t,
immaterial or unreliable evidence, and a ruling by this Board to admit deposition evidence would not require the admission of all offered portions of those depositions.
i Section 2.740a of the Rules of Practice governs the taking and use of depositions.
Depositions upon oral examination of any party or person may be taken without leave of the Commis-sion (S2.740a(a)).
The deponent shall be sworn er shall ef firm before any questions are put to him and examination and cross-examination shall proceed as at hearing (52.740a(d)).
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The deponent may also be accompanied and advised by counsel y
(S2.740a(i)).
While the Rules of Practice do not specifically set forth the manner in which depositions may be admitted into evidence, they clearly indicate that the admission of this type of evidence was contemplated.
Section 2.740a(g ) states:
"A deposition will not become part of the record unless received in evidence. "
Clearly, this provision is inconsistent with a wholesale exclusion of deposition evidence in a Commission pro-ceeding.
For guidance as to the manner in which. depositions are to be admitted into evidence, it is helpf ul to turn to the Federal Rules.
II.
Depositions of a Party, or an Officer, Director or Managino Agent of a Party Are Admissible Under'The Federal Rules of Civil Procedure
-Rules 26 through 37 of the Federal Rules concern deposi-tions and discovery.
The Rules differentiate cnly two kinds of depositions upon oral examination:
'those taken to perpetuate testimony before an action has been filed or pending an appeal (Rule 27) and those taken in the normal course of discovery after an action has been filed (Rule 30).
Rule 27 depositions differ from Rule 30 depositions only in that leave of the Court must be secured before taking depositions under Rule 27.
Both Rule 27 and Rule 30 depositions are taken in the same 4
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manner 3/ and both may be used in Federal District Court pro-ceedings. f/
As in the NRC, the witness is put under oath and examinction and cross-examination proceed as at tr ial. 5/
Rule 32(a) of the Federal Rules specifically permits the use of depositions in the Federal Ccurts:
Use of Depositions.
At the trial or upon the hearing i
of a cotion or any interlocutory proceeding, any part or all of a deposition, so far as ad.-issible under the r'ules of evidence applied as though the witnces were 3/
See Rulo 27(a)(3) and Rule 27(b).
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See Rule 27(a)(4), Rule 27(b) and Rale 32.
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Rule 30(c).
Applicants have objected to the use of deposi-tions in this proceeding in that:
"They were discovery deposi-tions" (Eighth Prehearing Conference, Tr. at 1489) and "I think one very real reason is, when you take discovery depositions, the witnesses are not i -
cross-examined or required to be cross-examined.
They are for purposes of discovery and discovery
.alone.
(Eighth Frehearing Conference, Tr. at 1490-1491).
As is shown above, it is clear that there is no difference between the procedures followed when taking " discovery" deposi-tions or when taking depositions to perpetuate testimony.
Pro-visions are made, both under the NRC Rules of Practice and the Federal Rules for examination and cross-examination. Applicants cannot now use their professed f ailure tc thoroughly cross-e:: amine, although specifically afforded that right, as a reason to protest the admission of deposition evidence.
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then present and testifying, 6/ may be used cgainst any party who was present or represented at the taking of the deposition or who had reasonable notice there-of, 7/ in accordance with any of the following pro-visions:
(1)
Any deposition may be used by any party for the purpose of contradicting or impeaching the testi-mony of deponent as a witness.
(2)
The deposition of a party or of anyonc who at the time of taking the deposition was an officer, director, or man 3ging agent, or a person designated under Rule 30(b)(C) or 31(a) to testify on behalf of a public or_ private corporation, partnership or association or governmental agency which is a party may be used by an adverse party f or any purpose.
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A. statement from a deposition offered into evidence is to
.Ee tested on its contents alone, "as though the witness were i
present and testifying." Wright, Handbook of the Lew of Federal Courts at 377 (Second Edition 1963); hocre, Fecetal Fractice hules Famphlet at 691 (1971).
This was also codified in Rule 802 of the Federal Rules of Evidence which provides that:
Hearsay is not admissable except as provided by these rules or by other rules prescribed by the Supreme Court oursuant to statutory autnority or by act of Congress.
(empnasis acaco).
The Advisory Committee's Notes to Rule 802 of the Federal Rules of Evidence uses Rule 32 of the Federal Rules of Civil Frocedure as an example of "other rules" as used in Rule 802.
(Federal Rules of Evidence, Advisory Committee's Notes 12802.)
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The fact that Rule 32 allows the evidentiary use of deposi-tions against a party who had notice of the taking of the deposi-tion (even where the party was not represented at the deposition) further undermines Applicants' argument that exclusion of this evidence is required because Applicants did not ef fectively cross-examine the deponents.
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(3)
The deposition of a witness, whether or not a party, may be used by any party f or any purpose if the court finds:
(b) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the 6eposition; (4)
If only a part of a deposition is of f ered in evidence by a party, an adverse party mey recuire him to introduce any other part uhich ought in f airness to be considered with the part introduced, and eny pcrev may introduce any other parts.
(b)
Objections to Admissibility.
Subjcet to the pro-visions or hule 23(o) 6/ ano sutdivision (d)(3) 9/ of this rule, objection may be mnde et the trial or~ hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
(Footnotes'added.)
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Rule 28(b) is concerned with depositions taken in foreign countries.
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Section (d)(3) of Rule 32.is concerned with errors and Irregularities occurring during the taking of depositions.
Part (A) and (B) of that section state:
(A)
Objections to the compentency of a witness i
or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(B)
Errors and irregularities occurring at the oral examination in the manner of taking the deposi-tion, in the form of questions or answers, in the oath of affirmation, or in the conduct of parties, and errors of any kind.which might be obviated, removed, or cured if promptly presented are waived unless seasonable objection thereto is made at the taking of the deposi-tion.
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The depositions which the Department wishes to of f er are those of of ficers, directors or managing agents 10/ of the Applicants who are obviously adverse parties.
In addition, all of these individuals are located more than 100 miles from the place of this hearing.
Such depositions would clearly be admissible in the Federal District Courts and should, under the evidentiary standards of the Rules of Practice and Administretive Proce6ere Act, be admitted in this proceeding.
As provided in Rule 32(b),
Applicants may enter objections to the relevancy or matericlity of any offered portion of a deposition and these objections may be ruled on by the Licenning Board as if "the witness were then present and testifying."
i III. The Department of Justice Made Ho Agreement As To The Unc of Depositions During the Eighth Prehearing Conference, Applicants stated that "the other parties made a pretty strong pitch" that deposi-tions were not going to be used in evidence (Eighth Prehearing i
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The question of whether a given employee is a managing agent must be decided on an instance-by-instance basis.
Criteria used to determine whether an employee is a managing agent have included:
whether the interests of the individual involved are identified with those of his principal; the nature of his function, responsibilities and authority respecting the subject matter of the litigation; whether any person or persons in higher authority of the dponent are in charge of the particular matter or possessed of the information as to which the examina-tion is sought; and whether the deponent could be relied upon to give testimony, at the principal's direction, in response to the demand of a party engaged in litigation with the principal.
Terry v. Modern Woodmen of America, 57 F.R.D.
141, 143 (W.D.
Mo. 1972); Tomingas v.
Douglas Aircraft Co.,
45 F.R.D. 94 (S.D.
N.Y. 1968).
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Conference, Tr. at 1491-1492).
The D:pe rtment is uneware of any declcration or agreepent as to the use of depositions or eny representationc that they would not be offered into evidence.
IV.
Conclusion For the rccsons set forth above, the Department urges t!'e Licensing Locrd to admit portions of the depositions of I.ppli-cants' officers and employecc into evidence in this proceeding, subject only to objections ac to materiality or relevence.
Respectfully submitte6, T
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Attorneys, Antitrust Division Department of Justice Washington, D.C.
20530 February 9, 1976
UNITED STATES OF AMERICA NUCLET.R REG"LATORY COMi;ISSION BEFORE THE I.TCMIC SAFETY AND IICENSING DOSRD In the Matter of
)
)
The Toledo E6ison Company and
)
The Cleveland Electric Illuminating
)
Docket Non. 50-346A Company
)
50-500A (Dcvic-Besse Nuclear Power Station,
)
50-501A Units 1, 2 and 3)
)
)
The C3eveland Electric Illuminating
)
Docket Ucc. 50-440A Compcny, et al.
)
50-441h (Perry Nuclear Power Plant,
)
Units 1 and 2)
)
l CERTIFICATE OF SERVICE I hereby certify that copies of MEMORANDUM OF THE DEPARTMENT OF
' JUSTICE IN SUPPORT OF THE ADMISSION OF' DEPOSITIONS INTO EVIDENCE have been served upon all of the parties listed on the attachment
-hereto by deposit in the United States mail, first class or air-mail, thic 9th day of February, 1976.
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1 ANET R.
URBAN f./
Attorney, Antitrust Division Department of Justice
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ATTACHMENT Douglas V.
Rigler, Esq.
Gerald Cnarnoff, Esq.
Chairman, Atomic Safety and Wm. Bradford Reynolds, Esq.
Licensing Board Robert E.
Zahler, Esq.
Foley, Lardner, Hollabaugh Jay H.
Bcrns tein, Esq.
and Jacobs Shaw, Pittnan, Potts &
815 Connecticut Avenue, N.U.
Troubridge Washington, D.C.
20006 1800 M Street, M.M.
Washington, D.C.
20036 Ivan W.
Smith, Esq.
Atomic Safety and Licensing Frank R.
Clohey, Esq.
Board Special Assistant, Attorr.cy nuclear. Regulatory Commission General Washington, D.C.
20555 Room 219 Towne House Apartments John M. Tryciak, Esquirc Harrisburg, Pennsylvania 17105 Atomic Safety and Licencing Board Donald H. Hauser, Esq.
Nuclear Regulatory Comminsion Victor A.
Greenslade, Jr., Esq.
Washington, D.C.
20555 The Cleveland Electric Illuminating Company Atomic Safety and Liccnsing 55 Public Square Board Panel Cleveland, Ohio 44101 Nuclear Regulatory Commission Washington, D.C.
20555 Leslie Henry, Esq.
Michael M. Briley, Esq.
Docketing and Servica Section Roger P.
Klee, Esq.
Office of the Secretary Paul M.
Smart, Esq.
Nuclear Regulatory Commicsion Fuller, Henry, Hodge & Snyder Washington, D.C.
20555 Post Office Box 2088 Toledo, Ohio 43604 Reuben Goldberg, Esq.
David C.
Hjelmfelt, Esq.
Russell J.
Spetrino, Esq.
Goldberg, Pieldman &
Thomas A. Kafuha, Esq.
Hjelmfelt Ohio Edison Company 1700 Pennsylvania Avenue, N.W.
47 North Main Street Suite 550 Akron, Ohio 44308 Washington, D.C.
20006 Terence H.
Benbow, Esq.
James B.
Davis, Director of A. Edward Grashof, Esq.
Law Steven A.
Berger, Esq.
Robert D.
Hart, 1st Assistant Winthrop, Stimson, Putnam
' Director of Law
& Roberts City of Cleveland 40 Wall Street 213 City Hall New York, New York 10005 Cleveland, Ohio 44114 Thomas J.
Munsch, Esq.
Atomic Safety and Licensing General Attorney
' Appeal Board Panel Duquesne Light Company Nuclear Regulatory Commission 435 Sixth Avenue li Washington, D.C.
20555 Pittsburgh, Pennsylvania 15219 x
9 e
e
David Olds, Esq.
William S.
Lerach, Esq.
4 Reed, Smith, Shaw & McClay Union Trust Building Box 2009 Pittsburgh, Pennsylvania 15230 Lee A.
Rau, Ecq.
Joseph A.
Rieser, Jr., Esq.
Reed, Smith, Shaw & McClay Madison Building - Rocm 404 1155 15th Street, 1;. W.
Washington, D.C.
20005 P
Eduard A.
Matto, Esq.
Richard M.
Firestone, Esq.
Karen H. Adhinn, Esq.
Antitrust Seccion 30 E. Broad Strect 15th Floor Columbus, Ohio 43215 Christopher R.
Schraff, Esq.
Assistant Attorney General Environmental Law Section 361 E.
Broad Street 8th Floor Columbus, Ohio 43215 James R.
Edgerly, Esq.
I Secretary and General Counsel Pennsylvania ?ower Company 4
One East Washington Street New Castle, Pennsylvania 16103 John Lansdale, Esq.
. Cox, Langford & Brown 21 Dupont Circle, N.W.
Washington, D.C.
20036 Michael R.
Gallagher, Esq.
Gallagher, Sharp, Fulton, Norman & Mollison 630 Bulkley Building 4
Cleveland, Ohio 44115 Jack R.
Goldberg, Esq.
Benjamin H. Vogler, Esq.
l Roy P.
Lessy, Jr., Esq.
I Office of the General Counsel Nuclear Regulatory Commission Washington, D.C.
20555
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