ML19331B069
| ML19331B069 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/29/1974 |
| From: | Scoville L BECHTEL GROUP, INC., CLARK, KLEIN, WINTER, PARSONS & PREWITT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007250766 | |
| Download: ML19331B069 (28) | |
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.THIS DOCUMENT CONTAINS P00R QUAUTY PAGES Q J33o CIITED STATES OF A' ERICA ATCMIC E;ERGY CO!C!ISSION In the Matter of )
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CONS'a/ZRS PC'4ER 00MPA'.T ) Construction Per=its
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(Midland Plant, (l nits 1 and 2) ) Nos. 81 and 82 OBJECTIO:!S CF BECICEL POER CORFO?ATION A'ID SEC9TEL ASSCCIATES PROFESSIONAL COR-PORATION TO FIRST SET CF I CERROGATORIES Dr>ECTED TO FEC'E CORPO?ATION Sechtel Power Corporation and Bechtel Associates Professional Corporaticn (hereinafter "Sechtel") make the following objections to the "First Set of Interrogatories Directed to Bechtel Corporatien" by the Saginaw Intervencrs ("Sagincw").
As a preliminary matter, Sechtel notes that the Saginaw Interregatories were directed to "Eechtel Corporatien". Inasmuch as Eechtel Corporation is not a party to ncr intervenor in this proceeding, the interrogatories have been treated as if filed upon Bechtel Power Corporation and Bechtel Associates Professional Corperation and will be objected to and answered by those entities and not Bechtel Corporation.
Bechtel's objections prinarily relate to the fact that virtually all of the Saginaw Interrogatories call for totally irrelevant and i= aterial infornatica cencerning each of Censu=ers Power Cetpany's (Consumers) " activities which are or may be subject to regulation by the Ato ic Energy Co= mission "
(Saginaw Interrogatories to 3echtel, p. 2, 52), and, "each of the nuci aar facilities as to which .. (Sechtel has) been a centractor or subcontracter."
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(Saginaw Interrogatories to Sechtel, p. 7, 512).
The Saginaw Interrogatories thus demonstrate a basic and total cisconception of the secpe of this Show Cause proceeding and ignore the statetents of this Scard at the First Pre-hearing Conference, the basis fer the for=ulatien of issues by the Directcr of F.er:1ation in the Order to Show Cause, as well as the AEC Memorandun and Crder dated Eecetter 20 ,
1973 (FAI-73-121082).
In addition to the overall objections relating to scope, 2echtel has certain narrcver objectiens cenceming specific interrcgatories. fr.is se=orandun will first address the question of the demand for infcmaticn concerning all of Octsuners' and 3echtel's nuclear activities, and then the specific interrogatories seriatun.
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SCOPE OF "HIS PECCEEDIE.
As indicated above, the Saginaw Interregatories demand informatics involving all of the nuclear activities cf Consumers and Sechtel. Sechtel requests that Interrogatcries 12,13 and 15 be stricken and that the ra+1ng Interrogatories adressed to it be linited to constmetien of the Midland plant .
The tremendous secpe of the Interrogatories is quidled gleaned frec a review of them:
"In connecticn with ycur answer to each category, and unless the facts are stated in your answer, include within your your answer the facts upon whdch you rely fer answer.
"his directive is meant to preclude answering any interrogatories with 'yes' or 'no' and requests base that answer.
any such you set forth the facts upon which you 131ess otherwise stated, each 2
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answer calling for inforration concerning Censurers Power Comcany is intended to call for inforta:1cn concemina each of its activities which are er =ay be sucject to rezulatien oy the Atetic Enerrf Commissicn."
(52, p 2)
" Identify in connection with each of Censumers Pcwer Coc::any facilities as set forth in the definitional, section each document ever received or reviewed, each meeting you have had (include dates and nanes of attendees) and each physical structure ycu have reviewed in connection with ycur analysis of first ccepliance with quality assurance regalations and second reasonable assurance of continuation with ecepliance with quality assurance regalations."
(Interrogatory 7, p 5) 1 "With resrect to each of the nuclear facilities as to wtich you have been a centractor or subcontractor, state:
(a) Are all of your quality-assurance and quality centrol plans identical? If they are not, state the j differences for each cf the relevant nuclear facilities.
Include within your answer why there are differences and which plan is, in your f,udgnent, the best to accccplish the purpose; (b) List each cuality-assurance, cuality-control violaticn wnich has occurred at eacn such site and include whether the violation was reportec to AEC cfficials; (c) List each quality-assurance, cuality-control incident which was not reported to AEC or which was not censidered a violatien but as to which discussion was had whether it was a violation." (Interregatory 12 pp 7-8)
, "With respect to the Palisades facility, explain in detail and character 1:e the type of quality-assurance and quality-centrol activities which occurred. Include
- wi your answer the folicwing
- ...."(Interrogatory 13, "What is vour o;inien of Censumers as a utility in the quality-assurance, cuality-centrol area in lignt of ycur knowledge and ercerience with other utilities? Please incluae within your answer the facts upon which you tase your answer and an identificatien of other utilities contained in your coc:carative answer. (Ecphasis A:ded)
(Interrogatory 15, p 9).
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As is clear frca the face of the Order to Show Cause, it relates caly to "various activities perfor=ed under Construction Permit Nos. 81 and 82" (p 1, etc). Similarly, the stated issues pertain only to the ecnstraction of the Fidland plant: "(1) whether the licensee is implecenting its quality assurance progras in compliance with Cocz:ission regalations, and (2) whether there is reasonable assurance that such i=plementar,1cn will centinue throughout the ccustruction process."
As conceded by Saginaw in its "I=ergency Petitice to the Atcmic Energy Coc=ission to void Illegal Action of The Director of Reg 21ation,"
"the Order to Chow Cause (Part III) lists five charges, the cajority cf .
which deal with i= proper cadwelding in existence at the Censumers site.
The ::irector of Reg 21stien relied upcn these charges as a primary ground fer issuing the Order to Show Cause ..." (T3, pp2-3). Saginaw then contended that the c:odificatics cf the Show Cause Crder precluded the consideration of the ca: welding issue at the hearing in this c:atter.
In denying the Emergency Petition, the Appear Ecard stated:
"'Contrat7 to the petition's cententions, the =cdificatica of the lower case Show cause Order did not foreclose cen-sideration at the hearing of any of the issues framed by the initial Show Cause Order. As stated in the initial Show Cause Order, the issues at that hearing (if cne is requested) shall be - ... . This formulation plainly includes, but is not lic:ited to cadwelding. The ulticate quality assurance issues are cruch broader." (RAI-73-12 at p 1083).
It cannot be fairly centended that the sentence, "The ultimate quality assurance issues are c:ach breader," sanctions the attempted distertion of these proceedings into an inquiry into all of the past activities of 4-
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Consuners and Bechtel in the nuclear industry. Eather, the Crder to Shcw Cause, and the Me=orandum and Crder of the Ccc=issica dictate the ccnclusion that the broad issues in this proceeding are limited to the icplecentaticn of the quality assurance progras through the constructicn of the l'idland plant.
':hus, if either the AEC Regulatory Staff or the Saginaw Interrenors wish to raise ecntentiens or specific issues and present evidence ccncerning any specific quality assurance activity involving the constructic: cf the Midland plant, they =ay do so and these Intentiens and fr. cts, if any, s%'7 be censidered, in additien to cadwelding, together with any affirmative showing by the applicant and 3echtel, in the determinatien of the ulticate issues as to whether or not the licensee is implecenting its Midland quality assurance program in accordance with AEC regulations and whether or not there is reasen-able assurance that such iepletentatien will continue in the future.
As background to the questien of the relevancy of the Saginaw de= ands, it is of seme significance that the Regulator / Staff has advised this Beard that, ... "(W)e are satisfied that the OA and QC rretless there are now under centrol." (Transcript p 65) (Emphasis supplied).
In the face of this Regulatory Staff pcsitien, it is suttitted that the usual burden upon Saginaw to de=cnstrate the relevance cf its bread dis-covery de= ands is increased, and that exceptionally ecepai*g reasons =ust te presented in order for this Ecard to require the tremendous, culti-year file search be undertaken.
Bechtel has been involved with different levels of responsibility in the engineering and ccustructicn of derens of nuclear pcwer plants. 2ese 5
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projects have involved a number of different quality assurance programs, different quality assurance replaticns, different contract':al respcnsibilities and requirements, different people and different utilities. An era "ation of such relationships and requirements, and "each quality-assurance, qua2hy-centrol incident" at any site other than Midland not cnly is irrelevant, but fails to serve ar,y substantial purpose, either in leading to evidence, clarify-ing issues cr pursuing the resolutien of this catter within a reasonable and responsible ti=e frame. Co=sel fcr Bechtel have investigated the burden impcsed by the Saginaw !.nterregatcries and have determined that in order to answer the ~nterregatories as to any single plant besides Midland a separate file search cf an approxicate average of two million to three cGon docu-ments, and the interview of ten or = ore persens, if such persons can be fcund, would be required. 2:is effort on a single plant basis wculd then have to be c:ultiplied by the nunber of other plants involved. Even wten the years required to eccply with such requests (if it could ever be done) had gene by and the infor=aticn asse= bled, it would be of no % Alue since specific incidents at or different progra s fer other projects do not stad light en the central issue here: whether there has been and will be co=pliance with the Midland QA progran by these persens who are implementing it throughout the ecnstraction cf the plant.
Cocpariscns of the quality assurance progracts applied en the various projects for which Bechtel has had var /ing respcnsibilities, and for which different regulations have existed, different circumstances have been present, and different relationships between Sechtel and the utilities have been involved are whc117 irrelevant as are any epiniens Se::htel cay have as to the t
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relative abilities of Censumers ?cwer Cc=pany and other utilities in the quality assurance arena. "he issues are not whether or not sote other prcgram is better than the one here, or whether Censucers is as good as, better tha.n, or wcrse than sete other utility under other regulatiens and other circunstances, but, rather, whether er not Consumers and 2echtel have been implementing the 7.idland prcgra at the Midland plant and whether cr not there is reascnable assurance that they will do so in the f2ture.
Recognizing that the Staff is " satisfied" (Transcript p 65), it is suttitted that even if the Saginaw denands are sccehow relevant to this proceeding, they are so bread and burdensete as to te wholly beycnd proper discovery. It is perhaps illustrative that Eechtel has had as cany as 12 people working Br over 2 c:enths on the ecliection and aralysis of hundreds of thousands of documents generated for Midland in an atte=pt to determine which of those documents are relevant to this proceeding, and the task will not be cocpleted for scte time to ec=e.
i Even the requests for such documents li=ited to Censumers' l constructica projects are irrelevant. To begin with, Big Eock, Fer:1-I, and 'he basic ccnstructicn of Palisades were ec=pleted prict to the prcesl-gation of 10 CFR Part 50, Appendix 3, and thus were constructed under entirely different reg 21ations, requirements and QA pregrams. Zechtel was not even involved in the construction cf Fert:i-I and is not aware of Censumers parti-cipation therein. Although 3echtel was involved in the construction of Big Rock, that plant has been en stream for many years, and few, if any of Bechtel's Big Rock personnel, and none of the quality assurance staf*,have j been e= ployed at Midlard. There are acte e=ployees working at Vidland sto I
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vorked cn the basic ccn :tructica at Falisades, Mt, again, ncne en the quality assurance staff.
Bechtel is crganized en a project basis. ~he project tean l for the construction of the Midland plantis trenendously different frect l
l that of Falisades, and the quality assurance teans are cenpletely different.
Further=cre, Bechtel ?cwer Corporation established an Ann Arbor area office in July,1972, and that office now has the pri=ary respcnsibility for the l Midland project. Previously, the Falisades project had been handled out of San Francisco as had the Midland project during its early stages. 'atile -
the 3echtel persennel at the Ann Arbor area office do censult with staff j Pancticnal groups in San Francisco regarding specific questicns, the Ann f Arbor area office provides a c:ulti-project staff Panction which, ordina:fy, handles any questions which arise.
It is to be noted that the quality assurance incidents at Palisades and at Midland during the exec:ptica construction have been litigated at the l 2
Palisades and Midland hearings, including the *vges in the qA progran.;
j vhich were =ade subsequent to Falisades. In fact, cany c:stters frcs l
l Palisades were re-litigated at Midland, and further litigaticn of then i
l vithin the linited scope intended for this hearing is totally unwarranted.
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As to quanicassee, that project is still in the stage of early r
, design, no public hearing has been held and the quality assurance prograns l
l of Consuners and 3echtel have not yet been ruled upcn as they have in l Midland.
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Legal Authorities Relatin7 to 5 cope of Oiscovery There is no authority for the proposition that the past performance of the dissimilar t; pes of large corporations involved here is relevant to the course of perf:rrance en one particular project.
Although ;ast perfor:ance of the same people under identical Quality Assurance programs might have some remote relevance to prove evil or willfal condu:0, such conduct is not at issue here, as recognized by the Cornission in its Me=crandum and Ordec of January 21, 1974, RAI-74-1-7 In discussing exceptions to the notice requirements of the Aisinistrative Procedure Act, the 0=Tdssion stated :
A sec0:. exception involves cases of willful violation. It has no appli:atien here, fn 7, EAI-7k-i at p 10 (a::pnasis added).
Moreover, the C =issi n, in this same Me crandus and Order, elaborated en the issues as defined in the Order to Show Cause:
Se issues . . . as stated in the Order, take clear the Director's conce:m. with the licensee's overall perfor-cance, now ani in the ^2ture, in the quality assurance area. PAI-74-1-11 (E.:pcasis added).
Absent ' rom the C =ission's definiti:n of the issues is an:7 reference to past activities.
Since the discovery standard of 10 CFR S2.7k0 is identical to Federal Rule of Civil Procedure 26(b)l, federal cases provide an analogy.
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Federal courts facing similar discovery proble=s involving past corporate operati:ns have limited the scope of discovery to the trans-action or subject matter in suit.
In Diffie v H. F. Wilcox Oil & Oas Co, !+ FED 240 (WD Ckl 19Lh),
plaintiff sought an accountir4 of the production frc: an oil and gas well, alleging that defendant had con =ingled oil produced from this well with other wells owned by defendant in the area and had failed to account to plaintiff for the entire production of the well. Similarly, plaintiff there sought, by means of discovery deposition, to have defendant disclose infor=atica concerning the production and sales of oil not only from the well in which plaintiff had an interest, but also from all other wells owned by defendant in the field. Plaintiff also sought to examine the bocks and records of defendant having to do with all of the wells.
The court limited discovery to those documents relating to the well involved:
It is thus apparent their suit is based upon specu-lation and not upon known facts. It partakes of the nature of a bill of discovery. The principle upon which such a bill rests is well expressed in General Film Company v Sampliner, 6 Cir. , 232 F. 95, 93, where the court said: ' * *
- It is the rule that in order to entitle a defendant in an action at law to a discovery of evidence in his adversary's possession it must appear that defendant has good ground for asserting the fact that the evidence will so disclose, and usually he is required to give the sources of his infomation. "A discovery sought upon suspicion, sumise or vague guesses is called a ' fishing bill' , and will be dis-cissed." Carpenter v Winn, supra, 221 U.S. at page
- 5h0, 31 S. Ct. 683, 55 L. Ei. f:A2, and cases there cited . ++ +'
There is nothird in the bill of complaint, asi:le from the c0nclusi0n of the pleader, that would justify
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the wide secpe intended to be covered by the deposition.
h5 FD 240, 241.
Frev v. Chrveler concratien, kl FM 17k (*Q Fa 1966), involved personal injuries allegedly suffered by plaintiff when the sccelerator in a new 1965 Chrysler L.perial he had purchased two days earlier stuck i i
I as he was driving down a hill. Plaintiff sought, by .ceans of interroga- l i
tories, to discover whether the " type" of throttle linkage asse=bly used 1 in 1965 I=perials was used on other =odels and types of autornbiles 4
=anufacturei_by h*;ndant, ard, if so, the name of each model and type on wnich used and the period of time when used. Defendant cbjected on 1 l
grounds of relevancy and overtroadness. The court agreed that the use l of the word " type" was too vague and limited the scope of discovery to installation of the sa-e thrcttle linkage asse=bly as was installed in the 1965 Chrysler :=perial. Where, as currently before the Board, the requested discove / involves different e=ployees, different utilities, different QA progra=s and different and evolving regulations and interpre-tations, the discovery shculi te denied.
In Freid v "nited States, 212 F Supp Sc6 (SD lrf 1962), ten i alleged stockholders of the ::elaware Lackawanna and Western Railroad Co=pany brought an action to enjoin in part or to void entirely an order of the ICC authorizing a =erger of the Cc=pany with the Erie Failroad l
Cc=pany. ?laintiffs =aintained that the hea-ing examir.er errcneously excluded a 1958 study, perfor=ed by the First Bosten Corporatien, which l recc== ended against the merger of these two cetpanies and a third co=pany.
The examiner excluded the study on the grounds that the reco==endaticns
as to a three carrier merger were irrelevant to the two carrier merger which took place. The court upheld the examiner's action, stating:
Moreover, the L'xaminer is not required to compel the production of every item of evidence which a party desires. He =ay, in his discretion, deny a request for production of evidence which is merely cumulative or i==aterirl to the issues presented. 212 ? Supp 886, 896.
In United States v Security state Bank & Trust, k73 F 2d 633 (5th cir 1973), the Secretary of Agriculture, in the course of an investigatory proceeding, subpoenaed from the bank "all deposit and withdrawal slips, bank drafts ushier's checks, certified checks, coney orders, loans, debit and credit memoranda, or similar negotiable instr =ent",
purchased by or issued to named individuals dt. ring the months of July through October, 1970. The subpoena stated that the ex W tion of these records was " essential" to a certain investigation concerning the named individuals 1
trading in egg shell futures. The court held that the mere allegation that l l
1 the records were " essential" to the investigative proceeding was not enough I to warrant production:
As noted above, neither the government nor the appellants offered any evidence at the enfcrcement hearing. The only caterials that were brought before the court, aside from the briefs and the argrents of counsel, were the pleadings, the subpoena itself, and the affidavit of the agent who had served the subpoena on the bank.
The strengest showing that e=erged from any of these materials was the bare, unsworn allegatien that produc- l tion of the records sought in the subpoena was ' essential I to an investigation concernir.g trading in the September 1970 egg shell future on the Chicago Mercantile Exchange.'
The duty of the district court was to dete::line the propriety of the subpoena on the basis of this showing.
The question for decision is whether an adequate basis existed for enforcement of the subpoena in the face of the slender showing cade by gover==ent. We answer in the negative. 472 F2d 638, 6k2-643 C
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I Clearly, a fair applicatien of the rationale of the security state Sank case requires that so nuch of Saginaw's Interrogatories as relate to plants and utilities other than Midland should be denied as irrelevant.
Particularly in point is Bullard v Universal. M111verk Corn, 25 FD 342 (ED :.'Y 1960), which involved an action for lu=ber sold and delivered and for c:nversion. In certain of its interrogatories plaintiff sought informa-tion of enrious types of lu=ber centracts entered into by defendant with
- other persons from 1955 to the date of the suit. The court licated the scope of those interrogatories as follows:
... the scope of these interreratories is broad and sweepinc. rein far revond tne date of the disruted transaction and e-cracing transactions with strangers to tne action. The interrogatories are allowed only with resrect to transactions cetseen the parties in April. 1955. and are r.ereo-r modified accortinclf.
25 F D j*2, jw (E=pnasis supplied).
The Circuit Court fer the District of Colunbia has reaffir ed the Cc: .ission's power and discretir to exclude irrelevant naterial. In Siecel v Atomic Enerrr Co nission, !+00 72d 778 (DC Cir 1968), an intervening preperty owner sought review of an order of the AEC granting an application for a pemit to construct a nuclear reactor, alleging that construction would endarger his pr0perty by sub,*,ecting it to possible ene.gr attack.
- he court held that the Atomic Energy Act did not cente= plate tt.at the Co ission would take such an issue into censideration in its decision to issue a per=it to construct a nuclear plant. As to petitioner's centention that his efforts to cross-exanine were unduly restricted, the court stated:
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[The Administrative Procedure Act] also provides that
'the agency as a =atter of policy shall provide for the exclusion of irrelevant, i=:r.aterial, or unduly repetitious evidence m ,' which the Co _.ission by re6ulation has done. 10 CFR $2.743 Here arain.
therefore, petitioner is thront back ucon tne n1rd fact snat tne Cc==ission need not near evicence wnich it is otnervise entitlei to regard as outside tne perimeter of the issues. *00 F2d lio, ice ic5 ti=ptasis alled)
Similarly, in Detroit T & I R Co v Fanning,173 F2d 752 (6th Cir 1949), testimony of comparable circu. stances was held improperly admitted.
There plaintiff, a mester of defendant's switching crew, was injured during a ' flying switch' operation when the impact of the moving car, on which plaintiff was standing, with a stationary car threw him to the ground. On appeal from a juigment for plaintiff, defendant maintained that the trial court erroneously admittei plaintiff's testimony that he had never ridden on a freight car that came into contact with another portion of the train at so high a rate of speed as the one involved in the accident. 2.e court reversed the judg=ent, holding that such testi=cny had been i preperly ad=itted:
We believe the testimony was improperly admitted.
Several factors can affect the speed at the time of i= pact, variable under different operations, irrespective of the initial speed given to the free rolling cars. It is a well established rule of evidence that circunstances under rica otner cormaracle conduct ec urs snould ce sucstantially similar. 173 F2d D2, 750 (impnasis adaed; Application of the rationale of the Oetroit T 'e T R case to the present case, which involves questiens concerning different pecple en different projects and/or at different utilities, different quality assurance programs and different regult.tions requires the conclusien that the Saginaw Interrogatories f
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should be 23dified an-d stricken as requested.
As stated infra, it is estinated that there is an average of approxi=utely two nillion to three sillien document: relating to the con-struction of each nuclear facility. The time and expense involved in producing these 10:u=ents alone would be enough to substantially delay a final determination by this Board.
Moret er,the issue before the Board is whether quality assurance is being i=plemented and will be implemented at Midland pursuant to a specific QA program. Introduction of matter relating to prior projects and other QA programs, even assuming arguendo that prior projects and different prograss are re=otely rele' cant, would Only serve to conftse the issues. Proposed Federal Rule of Evidence 103 reccznizes the danger in situations such as this:
Although relevant, evidence ma'/ te excluiel if its probative value is substantially outweighet by the dang r of unfair prejudice, c nfusion of the issues, or risleading the jury, Or by consideration of undue delay, waste of time, or needless presentation Of cu=ulative evidence.
In Clin '>athie-on "henical "cro y Allis-Chairert ?'fc Co, h33 721 833 (6th Cir 1971), the c;urt, citing an earlier version of 7FR3 kC3, recogni:ed the propriety of excluding evidence of another transaction involving different facts and circumstances. The case cencerned the death of an e=ployee of Clin Mathiesen which occurred when a transferrer purchased by Olin from Allis-Chalmers erupted with burning oil. Allis-Chalmers arguei that the accident was caused by negligence in Operating
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the transformer. Clin sought to intreduce evidence of a later =alfunction to prove that the transfer er itself was defective. The court found that the later (:*ovember) r:alfunction was not similar to the earlier (June';
incident and that the trial court did no? err in excluding evidence of the later incident:
Evidence of the November failure is, we believe, in marked contrast to that of the June incident on several i=portant points. It is true that the =alfuncticn in November occurred cn i; nit 7 transfor=er. However, the transformer and its equip =ent had been cc pletely re-
=anufactured and had been operating ner: ally since Septe ber 15, 1968. The testimony indicated that the
=alfunction occurrei just after an cperator in the control roc: had =ade a routine adjustment on the unit. He then stepped tack and heard the explosien.
No one was near the unit, =uch less working on it at the time of the explosion in :;ove=ber. The positicns of the tap changing techanis:s in the Novem br incident were different, and althcugh evidence indicated that the sice of the are on both occasiens was about the same, the locations of the arcirg on the tap charging mechanisms for each incident were different.
m Reference to the Preposei Rules of evidence for the United States District Ocurts and I'agistrates, h6 FRC 161 (1069) seems apprcpriate. Rule b-03 thereof states:
' Rule bO3, Exclusion of Relevant Evidence on Grounds of Prejudice, Ccnfusien, or Waste of Time.
(a) Exclusien !?andatcry. Although relevant, evidence is not ad=issible if its probative value is sub-stantially outweighed by the danger of unfair prejudice, of ccnfusion of the issues, or of mis-leadirg the jury.' h6 FRD at 225 The rule -akes exclusien of evidence such as that in tne present case not merely aiscretiona-v, out
=andatory. 'Ihe note un:1er the rule explains tnat the precative value of evidence must be weighed against the harn likely to result frem its *is-sien. It was within the spirit of this secticn 1
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l that the trial judge male his ruling, and we find no error in his decision, 438 F2d 333, 836-339 (Emphasis added).
The ?'anual ?:r ~orlex T.itigatien has dealt with the same pr:ble:
as it relates to discovery. Secticn 0.22 identifies classes of potentially co= plex cases, a=ong which are " cases involvir4 requests for injunctive relief affecting the Operations of a large business entity." See icn 2.'+0 of the Manual provides:
To keep discovery within bounds of reason and relevancy, the court should explore the desirability of establish-ing limits of time and subject =atter for the remaining discovery cn the merits. If appnopriate, the court should fix a date in the past and should order that matters occur-ring prior thereto cay not be discovered. Further in accordance with the provisions of Rule 26, FR Oiv P, the court should order that no discovery be per itted on irre-levant matters and on stipulated or uncentroverted facts.
l Courts have al o rec:gnised that burdensore and oppressive discovery transcends the " bounds of reason and relevancy" That the discovery requested by Caginaw is burdensc e is = ore than adequately demenstrated by the nutter of docu=ents invclved which would require years to review rni produce, and which, once produced would have no value because of the difference in the circu=stan:es encountered.
In Greene v Pat end, 10 F3 Cerv 2d 381 (D Colo 1966), a personal injurf suit, plaintiff propounded a 1:ng list of interrogatories in an atte. pt to determine the legal relationship between dsfendant and Standard 011.
The court observed that the interrogatories were " disproportionately broad and demanding", and further stated:
Pelevancy is the princiral inouirv for eeneral obiee-tions that tne interrocatories are curdencome or onerous to answer, too many in n'rcer, or related to matter irmaterial to any issue raised by tne pleadir#s e.re vually neld to te incurficient. dee Kain::
- Anneuser-busen, Inc., ::D Ill lW,15 FRD 242; Shrader y Reed, D Lb 1951,11 FF.D 367; and Hofhan v Wilson Line, Inc., ED Pa 1946, 7 FRD 73 However, objections of undue burden and enense have been sustained wnere the court was irnressed that the research recuired would be particularly time c:nsi:-in.: an enensive and tne value to be deri'Md is relatively mininal.
See Tivoli Realty v Paramount Pictures, D Del 1950, 10 FF3 201, and Cinema / casements v Loew's, Inc.,
D Del 19b7, 7 FRD 318. Even more frequently, inter-rogatories too indefinite or all-inclusive have been struck do c. See Wedding v Tallant Transfer Co.,
D Ohio, 1963, 37 FRD 8; Stovall y Gulf & South Am.
S.S. Co., D Tex 1961, 30 FRD 1952; and Webster Motor Car Co., y Pac'<ard Motor Car Co., DDC 1955, 6 FRD 35D.
Such inquiries, too bread in secue, are rararded as irrelevant. 10 FR Serv 2d col, oc2 (impnasis a:ided).
McCullouch v Bairy Oueen, Inc. , !+ FR Serv 2d 615 (ED Pa 1961),
involved a relatienship between plaintiff and defendant under a licensing contract allowing defendant to use plaintiff's trade name within a certain area. Although the court stated, 'ie would hesitate at this late date, practically on the eve of the trial, to order plaintiffs to gather together and produce these documents for the defendant," the court's pri=ary emphasis was en the burden involved in producing the documents:
However, not enly is the motion unti=ely, but it also places upon the plaintiffs the burden of co= piling an enor=ous quantity of naterial, the bulk of which is not even remotely cencerned with the issues in this case. The irrelevancy of the documents scught can be de=enstrated / the following example: One of the main issues in the case involves the contractual relationship between the owners of the tradename
' Dairy Queen' and their licensee, the defendant Dair-y i
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J f Queen, Inc. (The contract involved in the dispite gave the defendant the right to use and to license others to use the tradename ' Dairy Queen' within a certain area of Pennsylvar.ia). Another issue in the case (raised by the answer) is whether the plaintiffs j have come into court with unclean hands because of their alleged violation of the antitrust laws. Speci.
fically, the defendant charges the plaintiffs with attempting to illegally extend their patent monopoly on a certain freezer used in the Dairy, queen business by trying to ' tie in' use of that freezer with license agree =ents for use of the tradename ' Dairy Queen' .
Arainst this backcround of issues raised by the pleadings, a
the defendant now arr2es that it nas tne rirnt to exerine
. eve n contract ever mede in any State of the Unicn ov o
tne plaintiffs involvinz the right to use the patented freezer and every contract involving the right to use the tradena e ' Cairy i,ueen' . In addition, the defendant wishes to examine all reports. correspondence, me=cranda,
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papers, etc. . whien per*ain to the negotiation of suen contracts. Merely to state these requests is to snow that tney are tanifestly curdensome. oppressive, and l unlinited in score. 4 FR Serv 2d ol5, clo p:=pnasis added.
Assuming arcuendo that dissimilar =atters relating to perfer=ance
- on different construction projects have so=e remote relevance to perfor%nce on the Midlarsi project, such matters are clearly not material to the issues before the Co==ission. While authorities regarding materiality night not ordinarily be dispositive in a discovery settirg, it is submitted that they apply here not only because the Regulatory Staff has said that it is " satisfied" (Transcript p 65), but because of the tre=endous burden saginaw attempts to place upon Consumers, Bechtel, and the Board. Not only will substantial i periods of time and money be expended, but they will be wasted because the
=atters produced after the file search will be i==aterial and thus inaisissible i
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in any event. It is submitted that the parties should not be put to such a burdensore task where nothird useful will cc=e of it.
Materiality, as a distinct concept from relevancy, has been aptly defined in McCor=ick on Evidence, 2d Ed. $1S5:
In the courtroom the ter=s relevancy and =ateriality are often used interchangeably, but =ateriality in its more precise =eanirg locks to the relation between the propositions for which the evidence is offered and the issues in the case. If the evidence is offered to prove a proposition which is not a matter in issue or probative of a matter in issue, the evidence is properly said to be im.aterial.
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Relevancy, in legal usage, embraces this test and some-thing more. Relevancy in logic is the tendency of evidence to establish a proposition which it is offered to prove.
Relevancy, as e= ployed by judges and lawyers, however, is the terdency of the evidence to establish a =aterial proposition.
In this connection it is important to ree=phasize that the issues before the C0~ission are whether the quality assurance program en this particular project has been implemented and will continue to be implemented throughout the construction phase.
It is also important to refer sgain to the substantial differences between this construction project and previous construction projects, as detailed in this brief. Because of these factors, it is submitted that not only are prior projects irrelevant, but they are also i==aterial to the issues before the Board.
Courts have not hesitated to exclude evidence on the grcunds of i= materiality alone.
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4 In Curns v Martin,193 !,4 2d 214 (:o 1971), plaintiff constructi:n company alleged that defendant supplied it w.th defective c ncrete, causite discatisfaction to plaintiff's cust:cers and injury to plaintiff's reputa-tion. In cormection with this claim, plaintiff :ought to introduce evidence a
that work performed by plaintiff with Concrete from a supplier other thin defendant turned out well and that work performed by other contra:ters with concrete supplied by defendant turned out badly. The trial court excluded this evidence and the North Dak:ta Suprese Ocurt afficed, holding that such evidence was i==aterial:
Ass =ing for the sake of arg=ent only that the evidence offered but refused would have proved that the defendant i
at other times to other persons during the su==er of 1969 supplied bad sixes, and that work of the plaintiffs when supplied by others turned out well because of the good i
mixes of others, we do not believe that that evidence was
=aterial in trovinz inat tne mix su: plied to tne plaintiffs for the Swindler Additien was defective.
The law we apply is stated to be the general rule.
' ... as a general rule, the ccmsission of an act cannot te
' proved oy snowing the cccission of similar acts by tr.e ss=e person or nis agents or emnlovees at otner times and i under otner circe. stances, unless the acts are connected 1 I
in some stecial wav, indicartna a relevancy bevond mere
- similarity as to some particulars. Generally, also, exclusion is required of all evidence of similar or co=raraole facts, acts, or conduct vnien are incapable of raisinz any reasonacie gesur t10n or inference as to any principal and material fact or mtter in dipute ...'
29 Am Jur 2d k.vidence 3290, pp ;,*2, M3; 193 L 2d 214, 216 (E=phasis added). , ,
Accordingly, Bechtel submits that Interrogatories 12, 13 and 15 )
should be strik c en in their entirety and that each Interrogatory filed by faginaw j should be modified to the extent that it requests information regariirg other nuclear projects because it is beyctd the central issue here -- the implementation of the quality assurance programs at Midland. Such infomation is not only ir-relevant, ic=aterial, and devoid of substantial purpose, but so burdensome as to delay these proceedings beyond any reasonable limit.
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. II. SPECIFIC C3JECTICNS WIER TErd SCCPE The majority of the balance of Bechtel cbjections go to Saginaw's Interrogatories which request legal conclusions. Wile ccabined questicus of law and fact may, under some circumstances, be permissible, abstract questions of law, such as the facts necessary to doc:enstrate abstract compliance with unspecified regulations, and pure questions of law are clearly impermissible.
" Interrogatories may relate to any c:stters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rales of evidence. An interrogatory otherwise proper is not necessarily objectionable cerely be-cause an answer to the interrogatory involves an opinics or contentien that relates to fact or the application of law to fact, but the court cay order that such an interrogatory need not be answered until after designated discover / has been coc:pleted or until a pretrial ecnference or other later time."
(FRCP 33(b)).
Interrogator /1 states:
"1. Define the words 'ecepliance with quality assur-ance regulatiens' as those words are ecplcyed and as you understand them in the Cc==1ssion's Show Cause order in this proceeding. Include with your answer each fact which you clain c:ast exist in order to con-clude that ecepliance with quality assurance regula-tiens exists."
The phrase " compliance with quality assurance regulations", as set forth in the Interrogatorf, does not appear in the Order to Show cause. Eechtel objects to defining the words as they were e= ployed by the Director of Regu-lation, but will answer Interrogatory 1 to the extent of its understanding of the meaning of those words.
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i Bechtel objects to the second sentence of Interrogatory 1 because f it requests an abstract legal opinion, namely, eact fact necessary to estab-1 lish cocpliance with quality assurance regulations, which opinion is the ultimate question in this particular c:atter. M ile FRCP 33 per=its, under certain circu= stances, a requese for cpiniens or cententicus that relate "to fact or the a;plicaticn of law to fact", there is no AEC rule, rule of j aMM strative procedure or Federal Court rale which approves an interroga-tory whose purpose is solely to request another party to a proceeding to l provide a legal conclusien.
Interrogatories 2 through 5 request Bechtal to provide the ulti= ate e
i legal conclusion in this case to whether or not Consumers Power Co= par:y has i
t been in coc:pliance qith quality a.ssurance regulations and whether there is reasonable assurance that it will be in such compliance in the Pature.
Ignoring the fact that the Interrogatories involve all Consu=ers Pcwer's
. facilities, the tare conclusion requested is of no significance. In answer to other Interrogatories, and in testimony, Bechtel and Consumers will provide facts which, together with evidence from the Staff and Saginaw, will become the basis for this Board to conclude as to whether Const=ers has i=plemented i its quality assurance prcgram and will do so in the P2ture.
i Interrogatory 6 states:
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- "6. In your judgment, which of the folicwing is respen-
! sible for assuring reasonable assurance with q.A.-Q.C.
regulatienr at the Midland plant facility:
(a) Consumers Power Ceepany; (b) Certain nas?d individuals at Consumers Power Compargt;
! (c) 3echtel Corporatien; t
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(d) Certain named individuals at Bechtel Corporation; (e) Atomic Energy Co=missien or any part thereof; and (f) Certain named individuals at the Atomic
. Energy Ccz=ission er any part thereof.
Please explain your answer in detail."
1 l Interrogatory 6 is objectionable because it calls for a legal conclusion as to statutory, regulatcry, contractual, and e= ploy =ent responsi-bilities within and among Censumers Power Cczpany, Bechtel, AEC, and "certain named individuals" at each of those entities. The question cf respcasibility
. _ _ . for quality assurance is clearly determined by Criterien I of Appendix B to 10 CFR Part 50, as has been recognized by this 3 card at the first pre- hearing i conference (transcript pp 7-8, 20). It would seem that time might te more 4
l profitaol- tvering those Interrogatories which have been pro;erly i
j fra=edi a. . cu, by themselves, may require more time than that heretofore a
i allowed by this Board.
I i Interrogatory 8 states:
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"8. Do you believe that evidence of willful failure by Consumers Power Commy to repcrt any violation of any Atemic Energy Co= mission regulation is relevant evidence as to whether there is reasonable assurance that Censumers Power Company will eccply or centinue to comply with quality assurance regulaticns cencern-ing the Midland facility. If not, state why not."
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) Once again, we have an extremely clear example of a request for a legal conclasion; this time for the conclusion as to whether or not, "g 4 violation of g, Atomic Energy Coc=ission regulation is relevant evidence in this proceeding. (emphasis supplied) Not caly are questions of evidence left to the Scard and the lawyers, but it =ust be emphasized that this pro-l I w :
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ceeding does not involve a willful failure to repcrt any AIC violatien (see Memorandum and Order of the Cc==ission, RAI 74-1-7, .Tanuar/ 22,197k).
The only issues here are whether or not there has teen, and in the fature will te, reasonable assurance of co=pliance with specific AIC Regulations regarding quality assurance.
Interregatory 9 requests the same type of infor=atica requested in Interrogatory 1, and is ob,jectionable for t,he reasons heretofore stated.
These Interrogatories are impermissible because they request legal conclusions. The case of Specter Preicht Systems v Hehenstein. 58 FRD 162 (ND Ill 1973), is de=enstrative of this point. In pertinent part, the Srector Court held:
"Interrcgatory 52 requires plaintiff to state generally the nature of testi=cny that certain people having knwoledge of relevant facts are cc=petent to give.
Interrogatory G requests plaintiff to ' state in reason-able detail th: cype of testi=cny which plaintiff considers William Hohenst6a is cc=petent to give against defendant.'
The plaintiff has refused to answer these interregsteries.
Both interregatcries (52 and 54) base their request for infer =at c frem putative witnesses on their cc=petency to testify. Cuch a deter =ination as to the ce=petency of a witness to testify is not a matter for deter =inatien by the parties. The competency of a witness to give testi=cny is strictly a questien of evidence for the court to rule on at trial. A party is not permitted to obtain thrcuch dis-covery a pure conclusion of evidence law cr an epinien stich calls for a degree of expertise which the other party is not erected r to pcssess. Roberson v Great A=erican Insurance Cccpies of New York, h6 FRD LCk (DC Ca 1569); Uinta Cil Refining Cc=pany v Centinental Oil Cc=pany, 226 F Supp 495 (D.C. Utah 1964). The defendant Ho=e has deposed cr will depcse, er has the cpportunity to depose all the persons identified in plaintiff's answers. Mc=e knows as well as Spector the nature of the witness' testi=cny. The defendant Home is able to predict the ec=petency cf a witness to i
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testi.^/ as the plaintiff C;ector. Fecuirira answers to these interrora% ries vill not result m a narronnz of the issues presented, nor will it acccqlish t v etner lentimate ~;r ose. ;hus, since the deren; ant's interrogatories ask for infor=atien outside the cer;e-tency of the plaintiff, the plaintiff Spector v11.1 not be required to answer these interregatories."
(p 1%) (eephasis supplied).
Interrogatory 10 (c), (d), (e). Bechtel objects to answering these interrogatories for the reason that these questions go x21ely to its interest in this proceeding, and are thus irrelevant. Bechtel's interest in the proceedings, as set forth in its Petitica to Intervene, is no lenger at issue inas=uch as the Bcard deter =ined that Bechtel had a requisite interest in the proceeding at the first pre-hearing conference (Transcript p 20).
Furthermore, the questicn of whether or not Bechtel has the type of interest which per its it to tecc=e a party to the proceeding is neither relevant nor germane to the questiens cf whether or not Consumers and Bechtel have properly implecented their quality assursuce programs in the past ani whether there is reasonable assurance that they will do so in the future.
CC'ICLUSIC'I It is sub itted that this proceedir4 'tas instituted to inquire into the implementatica to-date of the Cencuters and Bechtel q aHty Assurance Programs in the constraction of the Midland facility. Neither the Crder to Show Cause nor the subsequent Cec =issicn decisiens which discussed it, nor a=y rule or regulatien of the Cermission provide any support whatsoever for Saginaw's typical and expected attempt to expend this hearing to, if not beyond, the trink cf impcssibility.
E s>
Even if limited to the ccnstruction of the Midland plant, and nenobjectienable inquiries, the Interregatories propounded by Caginaw will require extensive time to answer. There are hundreds of thousands of pieces of paper dccumenting the Midland construction which must be reviewed for relevancy, possible production and for infer:ation with wht::h to answer even the preper Interrosatcries.
Informaticn relating to other plants and cther utilities is not only irreleve.nt and i=saterial, but is wholly devoid of any substantial purpose, and, to the extent set fo.".h herein, should be stricken.
Respectfully sutnitted, CIARK, KErl, 'd ITER, FA".50!!S is FFr4I'['I A' t - ~ f & M, !
Iaurence M. 3:oville, Jr. /(
Individually and for the Fir 1600 First Federal Emilling Detroit, Michigsn LS226 (313) 962-6ks2 Attorneys fer EC'GL E'4ER CORERATIO:l and ECICL C500! ATE 3 IEOFESSIO :AL COREPATI;;I Dated: April 29,197b
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UNITED STATES OF /F. ERICA ATCMIC ENERGY CC'C4ISCION In the Matter of )
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CCN3U!GRG PCWER COMFAVY ) Construction Permit
) Nos. 81 and 82 (Midland Plant, Units 1 and 2 )
CERTIFICATE CF SEP7TCE I hereby certify that copies of the attached Cbjections of Fechtel Power Corporation a:d Bechtel Associates Professional Corporation to First Set of Interregateries directed to Bechtel Corperaticn, dated April 29, 1974 in the above captionei atter, have been served on the following in person or by deposit in the United States mail, first-class, or air = ail, this 29th day of April,197k:
Secretary (20) John G. Gleeson, Esq.
U. S. Atomic Energy Coc::rission Legal Department Atto: Chief, Public Proceedings The Dow Chemical Company Branch 2030 Dow Center
'4ashington, D.C. 20545 Midland, Michigan h86+0 James P. Murray, Jr. Michael I. Miller, Esq.
Chief Rulemaking and R. Rex Renfrew III, Esq.
Enforce =ent Counsel Isham, Lincoln & Peale U. S. Atomic Energy Coc=iission One First National Plaza - 421 Fir.
Washington, D.C. 20545 Chicago, Illinois 60670 Michael Glaser, Esq.
1150 17th Street, N.W.
Washington, D.C. 20036 Lester Kornblith, Jr.
U. S. Atomic Energy C :: mission Washington, D.C. 20545 Dr. E==eth A. 1,uetke U. S. Atcmic Energy Coc=issicn Washingten. D.C. 205h5 Myron M. Cherry, Esq.
Jenner & Block One IE4 Plaza /
Chicago, Illinois 6C611
,,covu d f!Q 'M'/.&'.
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t/ Laurence 1. dcoville, Jr.
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