ML20008G223

Request for Order Compelling Deposition of MD Lynch in Chicago,Il on 810805.In Cases of Inconvenience,Depositions May Take Place in Other than Deponent State of Residence. Certificate of Svc Encl.Related Correspondence

ML20008G223
Person / Time
Site:	Bailly
Issue date:	06/26/1981
From:	Vollen R PORTER COUNTY CHAPTER INTERVENORS, VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8107020483
Download: ML20008G223 (10)

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• I UNITED STATES OF AMERICA

~~=J NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l

In the Matter of )

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• NORTHERN INDIANA PUBLIC ) Docket No. 50-367 ,[-

SERVICE COMPANY ) (Construction Permi .

c (Bailly Generating Station, ) Extension) "t.b*~ f' Nuclear-1) ) ~

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PORTER COUNTY CHAPTER INTERVENORS' MOTION Q, TO COMPEL DEPOSITION OF M. DAVID LYNCH IN CHICAGO Porter County Chapter Intervenors ("PCCI"), by their attorneys, for the reasons cet forth below, hereby move the Board to order that the deposition of M. David Lynch be taken at the offices of counsel for PCCI, Suite 1300, 109 North

Dearborn,

Chicago, l

Illinois, commencing at 10:00 A.M. on Wednesday, August 5, 1 or ,on such date as the Board may order, and continuing d ,

, day thereafter until completed. In support of this moti ,

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01M T PCCI state as follows:

On September 17, 1980, PCCI filed its First Request p Designation of Witness or Witnesses pursuant t'o 10 CFR 52.72 C (2)(i) , requesting that the staff designate a witness for l

deposition to be taken commencing October 15, 1980, in Chicago. '

Staff counsel designated M. David Lynch, NRC Project Manager for Bailly, but refused to bring Mr. Lynch to Chicago for the deposition. Accordingly, PCCI, on October 17', 1980, moved the .

Board to order that Mr. Lynch's deposition be taken in Chicago.*/

• / Porter County Chapter Intervenors' Motion Concerning Deposition of M. David Lynch.

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The staf f, on November 6,1980, filed a pleading */ responding to that motion and moving for a protective order, attaching an affidavit signed by Mr. Lynch. The pleading and affidavit described in great detail Mr. Lynch's unfortunate personal circum-stance relating to an illness in his family, and asked that a protective order be entered specifying that Sr. Lynch's deposition be taken in Bethesda unless Mr. Lynch planned to be in the Chicago area "under circumstances which would permit his deposition there and then." (Staff Response at p. 5). -

PCCI responded to the motion for protective order on November 19, 1980.**/ PCCI's position was, as it continued to be until PCCI was informed of changed circums tances , that counsel for PCCI did not wish to take Mr. Lynch's deposition at a.ll, either in Chicago or Bethesda or any other place, while he was under the strain of his mother's illness. (PCCI Reponse at p. 1, and attached Affidavit of Robert J. Vollen.)

On January 19, 1981, the Board ruled on PCCI's Motion to Compel and on the staff's Motion for Protective Order. Apparently misunderstanding PCCI's explicit statement that Mr. Lynch's deposition should not be taken at all while he was under the strain of his mother's illness , the Board acted upcn PCCI's Motion "as one seeking to compel the presence of Mr. Lynch in Chicago at this time." (Memorandum and Order Restricting Location for

• / .NRC Staff Response to Porter County Chapter Intervenors' Motion to Compel Discovery and Motion for Protective Order.

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Porter County Chapter Intervenors' Response to NRC Motion for Protective Order.

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Deposition. at p. 3). The Board concluded that under the pre-sent circumstances, "which require Mr. Lynch to remain near his mother," ante inconvenience would be created than cured if the deposition were ordered to be held in Chicago. (Id. at 3.)

Therefore, the Board ordered that "any deposition to be taken of Mr. Lynch in the immediate future be restricted to the NRC staff offices in Bethesda, Maryland or other convenient location in the Washington D.C. metropolitan area ..." (Id. at pp. 3-4)

(emphasis in original).

The circumstances present at the time of the above-described motions and order have now substantially changed. Following the deposition of Edmund A. Schroer on June 12, 1981, at NIPSCO's offices in Hammond, Indiana, counsel for PCCI inquired of coun-sel for the staff as to whether Mr. Lynch's personal situation '

was still such that his deposition was inappropriate. Counsel for PCCI were then informed, for the first time, that Mr.

Lynch's mother had passed away some time ago. Further inquiry by counsel for PCC.I disclosed the staff counsel's view that Mr. Lynch's emotional state was such that it would not be inappropriate for him to give his deposition. Counsel for the staff indicated he would ascertain Mr. Lynch's availability and whether he had plans to come to Chicago.

In a telephone conversation between counsel for the staff and counsel for PCCI on Friday, June 19, counsel for the staff stated that while Mr. Lynch wac available to be deposed he

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did not have any plans to be in the Chicago area. Counsel for the staff also stated that the staff position was that Mr. Lynch would not be produced in Chicago without an order of the Board.

Accordingly, PCCI now move this Board for an order that Mr.

Lynch's deposition be held in Chicago.

Uhile it is true, as set forth in the Board's January 19 Memorandum and Order, at p. 3, that "as a general rule, depositions of non-plaintiffs are taken at the deponent's place of residence or principal place of business", case law is clear that, in circumstances of unusual inconvenience or other hardship, a party's deposition may be taken at another location. PCCI

- submit that such circumstances are clearly present in this case, and Mr. Lynch's deposition should be ordered to be taken in Chicago.

Where a deposition of an employee of a party is requested, the comparative burden -- financial or otherwise -- on the parties should determine the location of the deposition. Terry v.

Modern Woodmen of America, 57 F.R.D. 141, 14 (W.D. Mo. 1972);

Powell v. Int'l Foodservice Systems, Inc., 52 F.R.D. 205, 206 1

(D.P.R. 1971); Tomingas v. Douglass Aircraft Co., 45 F.R.D. 94, 97 (S.D.N.Y. 1968). All of the persons participating in or likely to be interested in attending the depo'sition are located in or near Chicago, except Mr. Lynch and the NRC Staff Counsel.

Counsel for Porter County Chapter Intervenors and for the State _

of Illinois are located in Chicago. The counsel for NIPSCO

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who has been present at all previous depositions in this proceeding is located in Hammond, Indiana, less than an hour's drive from downtown Chicago, as is NIPSCO's headquarters.

George and Anna Grabowski and Local 1010 of the United Steel Workers of America are also located in northern Indiana, near Chicago.*/ All depositions thus far taken have been taken either in Hammond or at the offices of PCCI counsel and an attorney for the staff has attended all of them, except for one session of one. If necessary, the deposition of Mr. Lynch can be scheduled at a time when a staff attorney will be in the Chicago area for another deposition in this proceeding.

Thus only one person will be required to travel to the Chicago area **/ specifically for the deposition if it is held in Chicago. -

The staff is a party to this proceeding, pursuant to 10 CFR 52.701(b); Mr. Lynch is the Bailly Proje'ct Manager; and the staff has designated him as an appropriate person to testify at a deposition in this proceeding. This is not a case where the deposition of an uninter..ted or uninvolved person is sought. Requiring that a deeply involved employee of a party to travel to have his deposition taken is completely appropriate l in this circumstance.

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-*/ Although the Grabowskis and Local 1010, neither of whom are represented by counsel in this proceeding', have not attended the depositions of NIPSCO personnel thus far taken, they may

( desire to participate in staff depositions, particularly the l deposition of the NRC Proj ect Manager for Bailly.

• • / PCCI would agree to taking Mr. Lynch's deposition in Hammond l

or other location near the Bailly plant site if this would l

prove more convenient for Mr. Lynch; however, PCCI's coun-sels ' office is more accessible to Chicago airports than are Hammond and the plant site.

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6-As indicated in PCCI's October 17, 1980, Motion and attach- l 1

ments, Mr. Lynch, representatives of the. NRC staff, staff counsel, l

l l and a number of NRC personnel have previously come to Chicago l 1 -

for meetings concerning aspects of the Bailly plant. Requiring i l

l the deposition to be held at a place other than the deponent's l residence or place of business is particularly appropriate when l

l the deposition is to be held at a location to which the dep;nent l or his colleagues have frequently traveled. Baker v. Standard

( Industries, Inc., 55 F.R.D. 178, 179 (D.P.R. 1972); Powell v.

1 Int'l Foodservice Systems , Inc., 52 F.R.D. at 206.

l Further, requiring that the deposition of Mr. Lynch be i taken at a location other than in the Chicago area will impose 1

an unnecessary and inappropriate financial burden on Porter 6

County Chapter Intervenors as well as upon other intervenors who .

may wish to participate in the deposition. The NRC is more able to bear the financial expense of Mr. Lynch's traveling to l

Chicago than Porter County Chapter Intervenors are to bear the expense of their, counsel traveling to Bethesda. In addition, holding the deposition in the Chicago area would be consistent with the Commission's policy of holding proceedings near a proposed nuclear plant site. See, Appendix A to 10 CFR, Part 2 SI(a).

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Porter County Chapter Intervenors submit that under all the circumstances of this proceeding, including the relative expense and convenience of holding the deposition in Chicago, and the comparative abilities of all the parties to bear that expense, an order directing that the deposition of Mr. Lynch be taken in Chicago, Illinois is just and appropriate.

Accordingly, this motion should be granted.

DATED: June 26, 1981 Respectfully submitted, Robert J. Vollen Jane M. Whicher

/ Au by: " 4 I

Attorneys for Porter County Chapter Intervenors Robert J. Vollen Jane M. Whicher c/o BPI l 109 North Dearborn Suite 1300 l Chicago, Illinois 60602 l (312) 641-5570 l

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Business and Professional People for the Public Interest 109 North

Dearbom Street. Suite 1300 - Chicago,

Illinois 60602 . Telephone: (312) 641-5570  ;

1 June 26, 1981 Mr. William H. Eichhorn Eichhorn, Eichhorn'& Link 5243 Hohman Avenue Hammond, IN 46320 l Re: In the Matter of Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1) Docket No. 50-367 (Construction Permit Extension)

Dear Bill:

This letter is to inform you of an inadvertent omission from the group of documents returned to NIPSCO on June 23, 1981, as described in my letter to you of that date. A file labeled "T-2983 Pile Testing W rk9 Pre-award Correspondence 1971-12/74" should have been in " Box #4," but was not, due to a mixup among the people who were doing the copying work.

In order to avoid the risk of loss in mailing this file to you, I intend to bring it with me and deliv.er it to you ,

personally on Tuesday, June 30, 1981, at the deposition of Mr. Shorb.

I apologize for the omission and hope that it will not cause any inconvenience.

Very truly yours, Robert J. Vollen One of the Attorneys for Porter County Chapter Intervenors RJV:j k l

cc: Service List I

D6 rectors James W. Asniey Bernard Gordon Aleman0er Ponhoff Staff Dianne L Sautter i RODrrt B ufton John C. Bachman Ronald Grzywinsne Rudo4pn S. Rasen Aiemancer Pohkoff Director of Demooment l Pres,aear Juhan Berman Martin Hausman Jeremy Wartusq Russo f secutive Detector u s,ima wise George Conan Peter Hunt Jarre* A Seapiro Robert J Vallen Commun,ty Deve#opmert Ocnaid Dann G'""atCounses c. rector Aian Sans Leon M Despres Arnold B. Kanter Dick Sempson B.it S.nge, Doug' ass W Cassee, J' Nancy Stone para W stiams Luis E. Diaz4rez Joseon Kenman * '"

Caroi Y Far*eit Elhot Lenman Cecd J Troy Y Para egar Vice Presacents f*'abe L La*Sa 'S Recnard P %egna rt Steve iHer Michael D Maltz Rocert V>Ien Jane M. Aniener Jeanne L (eedef  ;

dc*i"'5?'arive A ss,5f ant Trea s u,,, Leon D Fenney Jonn L McKaegne Lois Weisterg Howard A Learner Staunton O. Flanders E'ena B. Mutcany Morton weisman A ttoraev s Past Presioents l $, (",#8 Herbert 8 Fned Eugene Penow Ricnard Wolff ' " SI'""S 'd " ""d F-r*ousorg Agence

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

NORTHERM INDIANA PUBLIC ) Docket No. 50-367 SERVICE COMPANY ) (Construction Permit (Bailly Generating Station, ) Extension)

Nuclear-1) )

)

CERTIFICATE OF SERVICE I hereby certify that I served copies of Porter County Chapter Intervenors ' Motion to Compel Deposition of M. David Lynch in Chicago and a letter from Robert J. Vollen to William H. Eichhorn, dated June 26, 1981 on all persons on the attached Service List, by causing them to be deposited in the U.S. mail, first class postage prepaid, on June 26, 1981.

Robert J. Vollen Jane M. Whicher ,

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l Jane M. Whicheb Attorneys for Porter County Chapter Intervenors Robert J. Vollen Jane M. Whicher c/o BPI 109 North Dearborn Suite 1300 l Chicago, Illinois 60602 ,

(312) 641-5570 .

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SERVICE LIST .

Herbert Grossman, Esq. George & Anna Grabowski Administrative Judge 7413 W. 136th Lane Atomic Safety & Licensing Cedar Lake, Indiana 46303 Board Panel U.S. Nuclear Regulatory Dr. George Schultz Commission 807 E. Coolspring Road Washington, D.C. 20555 Michigan City, Indiana 46360 Dr. Robert L. Holton Administrative Judge School of Oceanography l Oregon State University Corvallis, Oregon 97331 Mr. Mike Olszanski Mr. Clifford Mezo Local 1010 - United- Steelworkers l Dr. J. Venn Leeds of America l Administrative Judge 3703 Euclid Avenue 10807 Atwell East Chicago, Indiana 46312 Houston, Texas 77096 l

Stephen H. Lewis, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commissiot

• Maurice Axelrad, Esq. Washington, D.C. 20555

, Kathleen ,H. Shea, Esq.

Lowenstein, Newman, Reis, Anne Rapkin, Asst. Attorney Gener:

Axelrad and Toll John Van Vranken, Environmental 1025 Connecticut Ave., N.W. Control Division Nashington, D.C. 20036 188 W. Randolph - Suite 2315 Chicago, Illinois 60601 William H. Eichhorn, Esq.

l Eichhorn, Eichhorn & Link Docketino & Service Section (3) 5243 Hohman Avenue Office o2 the Secretary Hammond, Indiana 46320 U.S. Nuclear Regulatory Commissioi Washington, D.C. 20555 Diane B. Cohn, Esq.

William P. Schultz, Esq. Stepnen Laudig, Esq.

Suite 700 21010 Cumberland Road 2000 P Street, N.W. Noblesville, Indiana 46060 Washington, D.C. 20036 Atomic Safety & Licensing ,

Board Panel U.S. Nuclear Regulatory Commission .

Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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