ML19352B268

Response to Porter County Chapter Intervenor (Pcci) Fourth Request for Production of Documents.Pcci Failed to Place Reasonable Limits on Requests & Failed to Meet Stds for Discovery.W/Certificate of Svc.Related Correspondence

ML19352B268
Person / Time
Site:	Bailly
Issue date:	06/23/1981
From:	Eichhorn W EICHHORN, EICHHORN & LINK, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8107010380
Download: ML19352B268 (10)

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[Q ch,K'y RELATED COREI5FONDENCE L t -

UNITED STATES OF AMERICA - N3 NUCLEAR NEGULATORY COMMISSION 9' o9

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 'y ,

In the Matter of ) Docket No. 50-367

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-3 .;rtw 4 NORTHERN INDIANA PUBLIC ) (Construction Permi~ ua :C SERVTCE COMPANY ) Extension) -

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(Bailly Generating Station, ) June 23, 1981 ott;ce of tne secretary 9 D:chting S OcfdC8 e Nuclear-1) }

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NORTHERN INDIANA PUBLIC SERVICE COMPANY'S N RESPONSE TO PORTER COUNTY CHAPTER INTERVENORS' .

FOURTH REQUEST TO NIPSCO FOR PRODUCTION OF DOCUMENTS In its Fourth Request to NIPSCO for Production of Documents, Porter County Chapter Intervenors ("PCCI") has included several document requests which clearly exceed the scope of legitimate, discovery. Section 2.741(a) (1) of NRC regulations permits the inspection and copying of documents "which are within the scope of :) 2.740 . . . ." Thus discovery of documents is limited by the subject matter relevancy standards of discovery in geceral.

The same is true of document discovery under the Federal Rules pursuant to Fed. R. Civ. P. 34 (a) (1) .

yso3 PCCI's Fourth Request seeks production of, among other y things: (1) "(a]11 written communications and all notes and [

records of c.M1 communications, between any employee or officer of NIPSCO and any or all members of NIPSCO's Board of Directors concerning the Bailly nuclear plant."; (2) "[alll minutes of all meetings of NIPSCO's Board of Directors from the earliest 1

meeting at which the possibility of construction of any nuclear l 1

power plant . . . was mentioned"; (3) "[a]Il records of corporate 81070103gg g

l action with respect to the Bailly plant authorized, director (sic),

approved, or ratified by NIPSCO's Board of Directors."; (4) "[alll meeting notes of NIPSCO's nuclear staff meetings."; and (5) "[alll documents in the file labeled ' Estimates - N1'."

PCCI's failure to place reasonable limits on these requests renders them overbroad and objectionable. No effort has been made to limit the requests to documents which are relevant to the general subject matter of this proceeding, let alone to the ,

specific, admitted contentions.

That document requests can be so broad as to imper-missible, even if some relevant material is contained therein is well established. In In Re IBM Peripheral EDP Devices Anti-trust Litigation, 77 F.R.D. 39, 41-42 (N . D . Cal. 1977), the ,

court denied IBM's motion for production of documents from an expert witness stating:

The court would . . . be inclined to grant a reasonable request. However, the schedule of documents to be produced sub-mitted by IBM cannot be so characterized.i. . .

The complaint that a party seeking dis-covery is on a fishing expedition is given short shrift by the courts, but when open season was declared, the assumption was made .

that the parties would continue to use the time-tested techniques. However, instead of -

using rod and reel, or even a reasonably sized net, IBM would drain the pond and ccilect the fish from the bottom. This er.icise goes beyond the bounds set by the discovery rules.

The court in IBM refused to " pare down" IBM's request and denied the motion without prajudice. Id. at 42.

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In Everco Iridustries, Inc. v. O.E.M. Products Co., 1 362 F. Supp. 204, 205 (N.D. Ill. 1973), the defendant requested that the. plaintiff produce at deposition, "all contracts and correspondence" between the plaintiff and several other companies. The court sustained plaintiff's objections.

The Defendant's request for carte blanche production of all contracts and communications between Plaintiff and certain other companies is not a properly defined request for production given the potentially ,

confidential nature of many of the documents.

. . . The Defendant has not demonstrated to this Court the materiality and relevancy of such open-ended discovery. . . . ,

thus it is the opinion of this Court that the '

Defencant's request, as it presently stands . . .

is improper and overbroad.

_I_d. at 206.

The court in Barnett v. Sears, Roebuck and Co., 80 F.R.D.

662, 664 (W.D. Okla. 1978), in the context of objections to interrogatories, held that the interrogatories in question were "overbroad and burdensome" and constituted an "open-ended request for virtually all information relating to all other accidents or near accidents at the Sears store, for a period of almost 25 years." Id. Plaintiff's Motion to Compel was overruled.

Many of the items listed in PCCI's Fourth Request fail to meet the standards for discovery established by Commission regula-tions and judicial precedent interpreting Federal rules of discovery. NIPSCO has nevertheless attempted to comply with the requests by furnishing documents within the broad general

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requests which ' relate to the matters in controversy in this .

proceeding. / NIPSCO's response to each numbered paragraph of PCCI's Fourth Request is as follows:

1. All documents requested in paragraph 1. have been produced.

2. NIPSCO objects to producing the documents requested in numbered paragraph 2. of PCCI's Fourth Request for the reason that the request is overly broad. That request seeks i production of all minutes of meetings of NIPSCO's Board of Directors since the date any nuclear plant was ever mentioned, presumably to the present date, without regard to the subject, matter of the information recorded in such minutes. No attempt has been made to limit the scope o*f this request to the present proceeding or indeed even to nuclear plants in general. Thus, the request is objectionable. NIPSCO has produced in response to this request certified copies of all portions of the minutes of the meetings of NIPSCO's Board of Directors which refer to any nuclear plant or to any document which mentions any nuclear plant including budget approvals, ratification of prospectuses in which mention is made of Bailly or other nuclear facilities, -

approval of annual reports to shareholders and monthly financial statements in which Bailly is mentioned. The documenrs referred

-*/ PCCI may argue, as it has in the past, that NIPSCO should not be permitted to determine which documents are relevant and which are not. However, there is no alternative in responding to PCCI's continued improper demands for "all documents," "all records," "all potes," etc.

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to in the minutes of the meetings of the Board of Directors have either been produced previously or are being produced at this time. PCCI has thus been provided with all information contained in the minutes of the meetings of NIPSCO's Board of Directors referring to any nuclear plant and all documents mentioned in those minutes which refer to any nuclear plant even though the-vast majority of those documents have no relevancy whatsoever to matters in controversy in this proceeding.

3. The documents requested in paragraph 3. of PCCI's Fourth Request have been produced as discussed in NIPSCO's response to paragraph 2. above. ,

4. NIPSCO objects to producing the documents requested in paragraph 4. of PCCI's Fourth Request. This paragraph is in effect a request to reconsider PCCI's Motion of March 20, .

1981, for cor.tinuous updating of discovery requests. That motion was denied by the Board's Order of May 20, 1981. As contemplated

- by the Bo.Trd's Order of May 20, NIPSCO will supplement di.scovery requests when directed to do so by the Board.

5. All documents requested in paragraph '5. of PCCI's Fourth Request have been produced by NIPSCO in response to PCCI's First, Second and Third Requests to NIPSCO for Production

_ of Documents.

6. All documents requested in paragraph 6. of PCCI's Fourth Request have been produced by NIPSCO in response to PCCI's First, Second and Third Requests to NIPSCO for Production of Documents.

. i.-'All documents requested in paragraph 7. of PCCI's Fourth Request were made available to PCCI either as pleadings in the Bailly slurry wall proceeding or have been produced by NIPSCO in response to previous PCCI requests to NIPSCO for the production of documents.

8. All documents requested in paragraph 8. of PCCI's Fourth Request which are in NIPSCO's possession have been either produced previously in response to earlier PCCI requests to NIPSCO for the production ot documents or are being produced at this time.

9. No documents are described in NIPSCO's responses to -

interrogatories 10 (d) , 10 (e) and 10 (f) (iii) . ,

10. No documents are described in NIPSCO's responses to interrogatories ll(c) , ll(d) and 11(e) (iii) .

11. No documents are described in NIPSCO's response to interrogatory 12 (d) .

12. Paragraph 12. of PCCI's Fourth Request seeks produc-tion of a letter from NIPSCO's counsel to Dr. McClusky of NIPSCO's Nuclear Staff. NIPSCO objects to production of that document ,

which contains advice of counsel to his client and is therefore ,

privileged and exempt from discovery. There is a pending Motion to Compel production of this document; NIPSCO's objections were further discussed in NIPSCO's ' Response to PCCI's Motion to Compel NIPSCO to Physically Produce Documents (June 8, 1981).

13. The document requested in paragraph 13. of PCCI's Fourth Reque.et is a proposed draft form of a contract between

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General Electric and NIPSCO which General Electric considers to be proprietary. PCCI.has previously (Motion dated May 22, 1981) moved to compel production of this document and General Electric has moved for a protective order. (Answer in Opposition to PCCI Motion to Compel Production of Documents'and Motion for a Protective Order, dated June 22, 1981.)

14. All documents requested in paragraph 14. of PCCI's Fourth Request which have not been produced previously have been i produced in response to the Fourth Requsst even though such documents are not relevant to the subject matter of this proceeding. ,

15. All documents requested in paragraph 15. of PCCI's Fourth Request which have not been produced previously have been produced in response to the Fourth Request even though such documents are not relevant to the subject matter of this proceeding.

Respectfully submitted, EICHHORN, EICHHORN & LINK 5243 Hohman Avenue Hammond, Indiana 46320 By: _

William H. Eichhorn Attorneys for Northern Indiana Public Service Company LOWENSTEIN, NEWMAN, REIS

& AXELRAD 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 i

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Mr. Robert J. Vollen 1 g c/o BPI p 109 North Dearborn Street G m Suite IJ00 Chicago, Illinois 60602 s Re: In the Matter of Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1)

Docket No. 50-367 (Construction Permit Extension) .

Dear Mr. Vollen:

We have your letter of June 15 seek,ing a copy of any document -

filed with the NRC pursuant to Generic Letter Number 81-23.

Please be advised that no such document exists for the Bailly Generating Station, Nuclear-1.

Yours very truly, EICHHORN, EICHHORN & LINK By: p/

William H. Ei'chhorn WHE/dgg cc: As per Certificate of Service.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND. LICENSING BOARD In the Matter of ) Docket No. 50-367

)

NORTHERN INDIANA PUBLIC ) (Construction Permit SERVICE COMPANY )

r xtension)

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(Bailly Generating Station, ) June 23, 1981 Nuclear-1) )

CERTIFICATE OF SERVICE I hereby certify that copies of the following documents: .

Northern Indiana Public Service Company's Response to Porter County Chapter Intervenors' Fourth Request to NIPSCO for Production of Documents Letter to Robert J. Vollen from William H. Eichhorn dated June 23, 1981 were served on the following by deposit in the United States mail, postage prepaid, on this 23rd day of June, 1981:

Herbert Grossman, Esquire, Chairman Administrative Judge U.S. Nuclear Regulatory Commission '

\91 1, Washington, D.C. 20555 -.

Dr. Robert L. Holton ' -

Administrative Judge School of Oceanography 5:

JUN 2 61981 > di Oregon State University OKzoog g SeestaG Corvallis, Oregon 97331 , W /p Dr. J. Venn Leeds Cy /

Administrative Judge N 10807 Atwell Houston, Texas 77096 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Ccmmission Washington, D.C. 20555

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Howard K. Shapar, Esquire Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 .

Stephen H. Lewis, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Susan Sekuler, Esquire Environmental Control Division 188 West Randolph Street Suite 2315

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Chicago, Illinois 60601 Robert J. Vollen, Esquire c/o BPI

• 109 North Dearborn Street Suite 1300 Chicago, Illinois 60602 Edward W. Osann, Jr., Esquire

- One IBM Plaza Suite 4600 Chicago, Illinois 60611 Robert L. Graham, Esquire One IBM Plaza 44th Floor Chicago, Illinois 60611 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America Local 1010 3703 Euclid Avenue East Chicago, Indiana 46312 Mr. George Grabowski Ms. Anna Grabowski 3820 Ridge Road Highland, Indiana 46322 f

WILLIAM H. EICIGIORN Eichhorn, Eichhorn & Link 5243 Hohman Avenue Hammond, Indiana 46320 Attorneys for Northern Indiana Public Service Company

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