ML20005B495

Memorandum of Points & Authorities in Support of Motion to Compel Discovery from Joint Intervenors.Applicant Will Not Be Able to Prepare for & Refute Testimony from Undisclosed Sources.W/Certificate of Svc & Proposed Order

ML20005B495
Person / Time
Site:	Callaway
Issue date:	07/02/1981
From:	Baxter T SHAW, PITTMAN, POTTS & TROWBRIDGE, UNION ELECTRIC CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20005B492	List: ML20005B491 ML20005B495
References
ISSUANCES-OL, NUDOCS 8107080297
Download: ML20005B495 (13)

Text

.

July 2, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BFFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

UNION ELECTRIC COMPANY ) Docket No. STN 50-483 OL

)

(Callaway Plant, Unit 1 )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICA1T'S MOTION TO COMPEL DISCOVERY FROM UOINT INTERVENORS A'plicant p UNION ELECTRIC COMPANY (" UNION ELECTRIC") has filed a motion to compel discovery from Joint Intervenors COALITION FOR THE ENVIRONMENT, ST. LOUIS REGION; MISSOURIANS FOR SAFE ENERGY; and the CRAWDAD ALLIANCE. This memorandum is submitted in support of UNION ELECTRIC's motion.

INiRODUCTION Pursuant to the Special Pre-Hearing Conference Order of April 22, 1981, UNION ELECTRIC has served on Joint Intervenors a first set of interrogatories and requests for Cacument production pertaining

.to Joint Intervenors' Contention Nos. 1 and 2. On June 22, 1981, Joint Ir.tervenors served a document entitled " Joint Intervenors' Objections to Interrogatories and Requests For Production" (copy attached as " Exhibit A"), which purported to raise two general objec-tions to certain unspecified interrogatories and document requests

[G107000297810702 1PDR ADOCK 05000483 dG PDR

served on Joint Intervenors by UNION ELECTRIC and by the NRC Staff.

In Objection No. 1, to which this motion is addressed, Joint Intervenors object to identifying persons known to us (Joint Intervenors) to have first hand knowledge of the basis for our conten-tions and persons who participate in providing answers to interrogatories.

Joint Intervenors do not, however, specify the particular interroga-tories to which this general objection is addressed, but rather list only four of UNION ELECTRIC's interrogatories by way of example.

(Contention 1, Interrogatory Nos. lA-1, lA-6 (c) and General Inter-rogatory A; Contention 2, Interrogat6ry No. A-1(c) ) .1/ Joint Inter-venors apparently object to identifying persons with first-hand knowledge of the factual basas for Joint Intervenors' allegations and contentions; to identifying persons who provided information used in preparing Joint Intervenors' responses to UNION ELECTRIC's inter-rogatories; and to identifying experts who have been informally con-sulted by Joint Intervenors. Joint Intervenors claim such informa-tion is not relevant and that identifying such persons will " expose them to possible reprisals."

1/By objecting in this manner, Joint Intervenors have failed to com-ply with Section 2.740b(b) of the NRC's Rules of Practice which requires that each interrogatory be responded to separately. Such a procedure fails to disclose either to the Board or to UNION ELECTRIC the full scope and import of Joint Intervenors' objection and makes a full and complete response to the objection by UNION ELECTRIC diffi-cult, if not impossible. Accordingly, it is submitted that Joint Intervenors' objections should be limited to those interrogatories specifically identified in the objections.

ARGUMENT Section 2.740 (b) (1) of the NRC Rules of Practice provides that discovery may be obtained regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including...

the identity and location of persons having knowledge of any discoverable matter.

(emphasis added).

There can be little question that the identities of persons with firs.t-hand knowledge of the facts upon which Joint Intervenors base i

their contentions and allegations fall within this scope of permis-I sible discovery. Indeed, it is hard to conceive of information more relevant or more discoverable than the names of potential factual witnesses.

The discoverability of such information under Section 2.740 (b) (1) has been recognized in the relevant case law. In General Electric Company (Vallecitos Nuclear Center, General Electric Test Reactor),

LBP-78-33, 8 NRC 461 (1978), the intervenors sought to preclude dis-closure of the names of persons providing information on which the i

intervenors had based their contentions. The Licensing Board overruled the intervenors' objection finding that such identification is "ex-pressly discoverable" under the Section 2. 740 (b) (1) . 8 NRC at 466.

The Licensing Board also recognized that the language of S'ction 2.740 (b) (1) is nearly identical to Rule 26 (b) (1) of the Federal Rules of Civil Procedure. The Federal Rule similarly req; ires disclosure

of the names of persons with facts pertaining to a party's conten-tions. This has been repeatedly recognized by the Federal courts.

In Edgar v. Finley, 312 F.2d 533 (8th Cir. 1963) the court held that it was reversible error to sustain objections to interrogatories seeking the identity and location of persons having knowledge of relevant facts relating to the accident upon which the action was founded. See also, Wycoff v. Nichols, 32 F.R.D. 370 (W.D. Mo. 1963).

Joint Intervenors contend, however, that they need disclose the names of only those persons with first-hand knowledge whom they choose to call as witnesses. The names of other knowledgeable persons, Joint Intervenors argue, is not relevant. It is not for Joint Inter-venors, however, unilaterally to make such a determination of rele-vancy. The fact that these persons, by definition, have first-hand knowledge of facts pertaining to Joint Intervenors' contentions presumptively establishes the relevancy of their identification. It is apparent that tae knowledgeable persons whom Joint Intervenors choose not to call as witnesses and not to identify may well be the persons with information most detrimental to Joint Intervenors' position in this proceeding. They cannot be allowed to select the most favorable persons as their witnesses and hide the rest. More-over, because in.NRC proceedings intervenors may choose to make their case solely through cross-examination of the witnesses of other parties, without presenting direct testimony of their own, it is clear that Joint Intervenors must permit the other parties to learn, through. discovery, the identity of persons who may provide informa-

tion to be used ir the cross-examination of Applicant's witnesses.

'Furthermore, Joint Intervenors' assertion that disclosure of the names of such persons will " expose them to possible reprisals" is not a legitimate foundation for their objection. It was such generalized claims of possible reprisals that were rejected in the case of General Electric Company, supra, 8 NRC at 463. This matter does not concern disclosure of the names of persons who provided information to the NRC after receiving a pledge of confidentialit;. See, e.g.,

Houston Lighting & Power Co. (South Texas Project, Units 1 and 2),

e ALAB-639, 13 NRC (May 8, 1981). _

In this case, persons have apparently chosen to provide information to the Joint Intervenors.

There is no indication that these persons were promised confidentia-lity, that Joint Intervenors had any right to make such assurances, if they did,-or that these persons even desire to have their iden-tities withheld.

UNION ELECTRIC also strongly rejects any suggestion that any of its employees or those of its contractors would be subject to " adverse employment actions'" if their names were among those disclosed. Even were this a possibility, there are protections and remedies available to such persons. Nor is there any indication that thoae persons whose identities Joint Intervenors refuse to disclose would even be i susceptible to such reprisals. Indeed, many may not be employees of UNION ELECTRIC or its contractors.

Given the readily apparent relevancy of this information and the importance of full disclosure of the facts in a proceeding of 5-

/ ,

\\l/// h//// /Yl $Q k IMAGE EVALUATION TEST TARGET (MT-3)

NN\\

.I '

l.0 'd BH DE

= 2m 'm" B L 1

l,lS

• bN 2

, / l.8 l.25 1.4 il I.6 l=,

./ y 6" --

f

• r /+ii +ksp

' //

y

, $3.$) .

L_____--_-----. .

- - _f E_.  ! - - - - - - a

+ YIh R

1. +%>% \\\\

+ IMAGE EVALUATION 4A %4  %

TEST TARGET (MT-3) 1.0 5 tu E34

=

u m gu -

a ELt 1.15,L'8 IE =

! lH I.25 1.4 '1_l.6 6" =

/ e 4 4$

1. 4 4%

• %Q/f _

1. +).;s?

4

,,//'7/.

/ j ,g  :

4

( r

__ _3 _ _ _ -- _

u

this nature, Joint Intervenors certainly should not be permitted to close the door on UNION ELECTRIC's legitimate avenues of discovery by raising the specter of possible " reprisals." Accordingly, it is submitted that the identity of all persons with first-hand knowledge of the basis of Joint Intervenors' allegations and contentions should be disclosed.

Joint Intervenors should also be compelled to respond to those interrogateries seeking the names of persons providing information used in preparing each of Joint Intervenors' answers to UNION ELECTF.IC's interrogatories. This is the same information requested in Joint Intervenors' Interrogatory No. 159 addressed to UNION ELECTRIC. Joint Intervenors certainly cannot object to providing that which they have requested from UNION ELECTRIC.

Finally, UNION ELECTRIC does not dispute Joint Intervenors' contention that the identities of " experts" informally consulted in anticipation of trial (as opposed to those expected to testify or specially retained or employed) are not discoverable. If, however, such " experts" are also persons with first-hand <nowledge of the fac-tual basis for Joint Intervenors' contentions or are otherwise persons who have supplied information which has formed the basis for Joint Intervenors' contention, Joint Intervenors should not be allowed to insulate such persons and the information they have from discovery by placing the label " expert" upon them. See, e.g., Sochanchak v.

Marine Transport Lines, Inc., 28 F.R. Serv.2d 362, 364 (E.D. Pa. 1979);

Advisory Committee Notes to 1970 Amendments to Federal Rules of Civil Procedure, 48 F.R.D. 487, 503 (1970).

l l

CONCLUSION If the requested disclosure is not made at this time Applicant may be confronted at the time of hearing with Joint Intervenors' testimony or hypothetical cross-examination based upon and referring to information obtained from these undisclosed sources. Not only will Applicant be unable to prepare for and refute such testimony or questioning but also the Board will be unable properly to test and judge the credibility and reliability of such hearsay testimony.

Disclosure of the requested information is essential at this juncture so that the facts in this proceeding can be fully developed and a aplete record compiled. Accordingly, Joint Intervenors' Objec-tion No. 1 should be overruled and J int Intervenors should be com-pelled to respond fully to those. interrogatories to which Joint Intervenors have interposed such objection.

Respectfully cubmitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: m .

Thomas A. Bakter Richard E. Galen Deborah B. Bauser Counsel for Applicant 1800 M Street, N.W.

Washington, D.C. 20036 Telephone: (202) 822-1000 ,

July 2, 1981

.. .,o .

C' .

UNITED STATES OF AMERICA ,

===. NUCLEAR REGULATORY COMMISSION 4 na BEFORE THE ATOMIC S AFETY AND ' LICENSING BOARD In the Matter of )

)

UNION ELECTRIC COMPANY ) Docket No. STN 50-483-OL

)

(Callaway Plant, Unit 1) ,

)

JOINT INTERVENORS' OBJECTIONS TO INTERROGATORIES AND REQUES'IS FOR PRODUCTION Joint Intervenors make the following objections to Applicant's Interrogatories and Reques'ts for DMum'ent Production (Set No.1) on both Contentons 1 and 2, and NRC Staff Interrogatories and Request for Production of Documents.

1. Joint Intervenors object to identifjing persons known to us to have first hand knowledge of the babs for our contentions and persons who participate in providing A answers to interrogatories. Applicant and the NRC Staff seek not only to know who D our witnesses will be at the hearings in this matter, but also the names of all persons with whom Joint Intervenors 'have consulted in framing our contentions and answering interrogatories. See, e.g., Applicant's Interrogatories on Contention No.1, I A-1,1 A-6(c), General Inteerogatory A; Applicant's Interrogatories on Contention No. 2, . p. 2

~

(first paragraph), A-1(c);~ NRC Staff Interrogatories 1(h)(a) and (b),13.. Joint Intervenors recognize the need of the Applicant and Staff to know who our witnesses will be and we fully intend to supply that information in due course when that has been determined.

However, the Applicant and Staff can have no legitimate need to know the identity of other persons, not witnesses, who have assisted and are assisting Joint Intervenors in this matter. That information is not relevent, and to identify such persons will only expose them to possible reprisals for their activities in support of Joint Intervenors.

Joint Intervenors must, therefore, object to identifying such persons in order to protect

,them from adverse employment actions in their present and prospective positions, and other possible reprisals.

EXilBli A m .o

~~ .

Under the Federal Rules of Civil Procedure, upon which the NRC's discovery dI D. rules are modelled, only. the names of experts who are expected to testify at trial and those who have been retained or specially employed are discoverable. The identity of experts who have been consulted informally in anticipation of trial is not discoverable.

2. Joint Intervenors object to Applicant's request for identification and production of correspondence and written records of telephone conversations or meetings between Kay Drey and any employee of the NRC. See, eg. Applicant'! Interrogatories on Contention No.1, IA-16. The grounds for this objection are simply that Kay Drey l is not a party to this proceeding and her correspondence and records are not in the custody and control el Joint Intervenors. _ .. .

4 Respectfully submitted, CHNCKES AND HOARE

($-

tr Kenneth M. Chackes Attorneys for Joint Intervenors 314 North Broadway St. Louis, MO 63102

, 314/241-7961 w

9m o 9 *w 'e w .A m "'

-..w

• r9 - e 6

A .

EXHIBIT A

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

)

UNION ELECTRIC COMPANY ) Docket No. STN 50-483-OL

)

(Callaway Plant, Unit 1) )

CERTIFir' ATE OF SERVICE I hereby certify that copies of Joint Intervenors' Objections to Interrogatories and Requests for Production have been served on the following by deposit in the United States mail this 4 -day of June,1981.

James P. Gleason, Esq., Chairman Atomic Safety and Licensing Board 513 Gilmoure Drive

• Silver Spring, MD 20901 , '

Mr. Glenn O. Bright Atomic Safety and Licensing Board Panel' U.S. Nuclear Regulatory Commission

(*IEEE Washington, D.C. 20555 Dr. Jerry R. Kline Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Thomas A. Baxter, .Esq. . 1 -

Shaw, Pittman, Potts & Trowbridge

~

1800_ M Street, N.W.

4 Washington, D.C. 20036 s

Docketing and Service Section Office of the Secretary U.S. Nuclear Regulator'y Commission Washington, D.C. 20555 Roy P. Lessy, Jr., Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555

[',"- f.

t[5 Kenneth M. Chack s CHACKES AND HvARE EX 031I A

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

)

UNION ELECTRIC COMPANY ) Docket No. STN 50-483 OL

)

(Callaway Plant, Unit l' )

ORDER Upon consideration of Applicant's Motion to Compel Discovery from Joint Intervenors, the memoranda submitted in support thereof and in opposition thereto, and good cause for such motion having been shown, it is by the Board, this day of July, 1981, ORDERED that Joint Intervenors' Objection No. 1, served on June 22, 1981, be and it hereby is overruled and Joint Intervenors shall respond fully to those interrcgatories to which such objection had

< been interposed within ten (10) days of the date of this ORDER.

Chairman

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION q BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i

i In'the Matter of )

)

UNION ELECTRIC COMPANY )_ Docket No. STN 50-483 OL ,

)-

(Callaway Plant, Unit 1) -)

CERTIFICATE OF SERVICE 1

I hereby certify that copies of Applicant's Motion to Compel Discovery from Joint Intervenors, Memorandum of Points and Authori-ties in Support thereof, and proposed Order were served this 2nd day ,

of July, 1981 by deposit in the United States mail, first class, postage prepaid, to the parties identified on the attached Service .

List.

. M [. /A Richard E. Galen i

t i

4

.j

~.

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

)

UNION ELECTRIC COMPANY ) Docket No. STN 50-483 OL

)

(Callaway Plant, Unit 1) )

SERE N LIST James P. Gleason, Esquire Kenneth M. Chackes, Esquire Chair:ran Chackes and Hoare Atcric Safety and Licensing Board 314 N. Broadway 513 Gilnoure Drive St. Iouis, Missouri 63102 Silver Spring, Maryland 20901 Mr. John G. Reed Mr. Glenn O. Bright Poute 1

- Atomic Safety and Licensing i Kingdom City, Missouri 65262 Board Panel U.S. Nuclear Regulatory Ccarission Mr. Howard Steffen Washington, D.C. 20555 -

Charcois, Missouri 65024 Dr. Jerry R. Kline Mr. Harold Iottrann Ato:ric Safety and Licensing Boute 1 Board Panel O mnsville, Missouri 65066 U.S. Nuclear Regulatory Comnission Washington, D.C. 20555 Mr. Earl Brown P.O. Box 146 Roy P. Lessy, Jr., Esquire Auxvasse, Missauri 65231 Office of the Executive Ingal Director U.S. Nuclear Pegulatory Ccmnission Mr. Fred Luekey Washington, D.C. 20555 Rural Poute Phineland, Missouri 65069 Docketing and Service Section Office of the Secretary Mr. Samuel J. Birk U.S. Nuclear Regulatory Comrission P.O. Box 243 Washington, D.C. 20555 Fbrrison, Missouri 65061

, Joseph E. Birk, Esquire Mr. Pobert G. Wright Assistant '.o the General Counsel Poute 1 Union Electric Company Fulton, Missouri 65251 P.O. Box 149 St. Iouis, Missouri 63166 Eric A. Eisen, Esquire Birch, Horton, Bittner & bbnroe Treva J. Hearne, Esquire 1140 Connecticut Avenue, N.W. , #1100 Deputy General Counsel Washington, D.C. 20036 Missouri Public Service Comnission P.O. Box 360 Jefferson City, Missouri ,65102