ML20011A102
| ML20011A102 | |
| Person / Time | |
|---|---|
| Issue date: | 09/03/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20011A101 | List: |
| References | |
| REF-10CFR9.7, TASK-RICM, TASK-SE SECY-81-526, NUDOCS 8110070257 | |
| Download: ML20011A102 (27) | |
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September 3, 1981 5'
c,E SECY-81-526 4,,
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PORTIONS DELETED RULEMAKING ISSUE (Commission Meeting)
For:
The Commission From:
Leonard Bickwit, Jr., General Counsel
Subject:
Proposed Changes to 10 CFR Part 2 (Contentions, Analysis of Public Comments Interrogatories) and Recommendations of NRC's Legal Offices and Licensing Panels Discussion:
I.
Summary On June 8, 1981 the Commission published in the Federal Register a Notice of Proposed Rulemaking soliciting public comments on four proposed changes to the Commission's Rules of Practice, 10 CFR Part 2.
These changes would (1) raise the threshold for the admission of contentions (the Commission invited comment on two alternative proposals), (2) preclude a party from serving more than 50 interrogatories on another party, unless consent to file additional interrogatori9.s is obtained from the licensing board, (3) authorize the licensing boards to require that responses to motions to compel be made orally in a conference telephone call or other prehearing conference, rather than in writing, and (4) permit the licensing boards to require service of documents by express mail.
The purposes of these proposals are to make it easier to eliminate " frivolous" contentions at an early stage of the proceeding, to expedite the proceedings on admitted conten-tions, where possible, and alleviate strains on the resources of the parties created by the filing of an unlimited number of interrogatories.
The Commission received 61 comments.
Intervenors in NRC proceed-ings generally opposed the proposed changes, particularly the proposals to raiso che threstold of contentions and place a limit on the number of i.nterrogatories that may be filed.
With a CONTACTS:
SECY NOTE:
This paper is identical to advance Trip Rothschild, OGC copies which were distributed to Commission Juan Rodriguez, OGC offices by OGC on September 2,1981.
4-1465 8110070257 811001 PDR 10CFR PT9.7 PDR
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s The Commission 2
couple of notable exceptions, the nuclear industry strongly supsorted raising the threshold for the admission of contentions, particularly the alternative approach developed by Commissioner Ahearne &Nich would permit a licensing board member to use his or her tecEnical knowledge in deciding whether a genuine issue of materiel fact exists.
There is no consensus within the industry on whether a limit should be placed on the number of interroga-tories that may be filed.
Some industry commenters supported the proposal; others opposed it.
The industry commenters generally supported the other two proposals.
In the following pages, we summarize the comments that were submitted and provide the recommendations of the Chairman of the ASLAP, OELD, and OGC.
We also set forth the ASLBP recommenda-tions with respect to all proposals except contentions.
The ASLBP will furnish its views on contentions in a separate paper.
We have not counted the number of commenters who support a given argument, and rarely identify which commenter(s) supports a particular position.
The analysis instead focuses on the major arguments advanced by comments in favor of or oppused to the proposed changes and alternative approaches available to the Commission.
II.
Analysis of Proposed Rule Changes 1.
Raise the Threshold for the Admission of Contentions Under present' practice, the licensing board examines each conten-tion to determine whether (1) the contention is stated with the requisite specificity, (2) the basis is adequately delineated, and (3) the issue sought to be raised is cognizable in an indi-vidual licensing proceeding.
No inquiry is made into the merits of the contention.
The Commission sought comment on two alterna-tive proposals which would raise the threshold for the admission of contentio.ns.
Under the first proposal (Alternative A), an interested person petitioning to intervene would be required to submit a concise str' ~ ment of the facts supporting each contention together with refer (aces to the specific sources and documents which have been or will be relied on to establish such facts.
Failure to comply with this requirement would :esult in dismissal of the contention.
Under this approach the licensing board would not consider whether the facts, sources or references set forth are legally sufficient to prove the contention.
However, an obviously insufficient factual or evidentiary basis could prompt the applicant or the staff to move early for summary disposition of the contention.
An intervenor admitted to a proceeding would not be permitted, absent good cause, to seek or establish facts or rely on sources on which notice was not given when the contention was admitted.
t 4
The Commission 3
The commission also sought comment on an alternative approach developed by Commissioner Ahearne which would have established a higher threshold (Alternative B).
Under that proposal, a conten-tion would not be admitted for hearing if the documents submitted by an intervenor fail to demonstrate that there exists a genuine issue of material fact to be heard.
A licensing board member could use his or her technical knowledge in deciding whether a genuine issue of. material fact exists.
Before a contention could be admitted,.the facts asserted in support of a contention would have to constitute.a prima facie case.
Contentions raising only an issue of law would not be admitted for hearing, but would be decided on the basis of briefs and/or oral argument in accordance with procedures to be established by the licensing board.
A.
Summary of comments The industry and intervenor commenters took viametrically opposite positions on the Commission's proposals.
The industry generally favored raising the threshold for the admission of contentions to the highest possible level and, therefore, with a couple of exceptions, supported alternative B.
The intervenors thcught the Commission's proposals would substantially reduce public partici-pation in NRC hearings and deny due process of law, and strongly urged the commission to reject the proposals.
Many of the intervenors stated that both alternatives A and B are fundamentally inconsistent with the recommendations of the Kemeny and Rogovin Reports which called for greater public participation in NRC proceedings.
The primary objection raised to alternative A is that in the Statement of Considerations the Commission stated that absent a showing of " good cause" a party would not be per-mitted "to seek or establish facts or rely on sources as to which notice was not given when the contention was admitted."
Many intervenors interpreted this to mean that facts or documents uncovered through the subsequent discovery process could not be used in the hearing by intervenors.
Intervenors pointed out if new information obtained through discovery could not be used in the hearing, discovery would be meaningless.
Intervenor commenters further argued that both alternatives A and B discriminated against intervenors because they would not apply to the other parties.
One commenter stated that neither the applicant nor the NRC staff is required to set forth the facts that it will rely on in response to the intervenor at any time during the course of the proceeding.
In addition, a concern was repeatedly expressed that under both alternatives A and B the rule would require intervenors to plead facts at too early a stage in the proceeding.
Intervenors
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Tha Cosmiccicn 4
stressed that at the time contentions are admitted, the NRC staff
'has not yet published its safety evaluation reports or the Final Environmental Impact Statement.
Intervenors claimed these docu-monts were significant sources of information.
The applicant is also still submitting revisions to its application and PSAR or FSAR at that time.
And, of course, discovery has not commenced.
Intervenor commenters also argued that under either proposal the rule would increase the cost of. their participation in NRC pro-caedings because to establish facts they would be required to retain experts at an earlier stage.
They argued that it is difficult to obtain funds from the public before contentions are admitted because possible contributors have no assurance at that early stage that intervenors will be participating in a hearing.
One commenter argued that alternatives A and B were fundamentally alien to the American system of.4"risprudence stressing that it has been unable to locate any typy of litigation where parties are required to plead all of their facts to start a case.
The commenter argued that the proposed rules would have a significant adverse effect in NRC proceedings on intervenors because under s
existing rules an intervenor is permitted to prove its case by cross-examination alone.
Requiring a potential intervenor to plead all facts prior to discovery would therefore functionally eliminate its right to prove a case by cross-examination, since an intervenor would have no way at the beginning of the proceeding to plead and document facts within the knowledge of its adversaries.
With regard to alternative B, intervenors also noted that by permitting the licensing board to determine whether a genuine issue of material fact exists, the Commission would be adopting a similar rule to that used for determining whether a motion for summary disposition should be granted.
Intervenors argued they would in effect be required to respond to a " phantom" summary disposition motion, because the applicant or the staff would not be required to file such a motion setting forth the facts upon which such a motion would be based as called for in 10 CFR 2.749.
Intervenor argued the proposal therefore would in effect shift the burden of proof on a summary judgment motion, and therefore may not be consistent with due process or fundamental fairness.
In sum, intervenors found the proposed rules to be one-sided, unf air, and aimed at restricting public participation in NRC proceedings.
More surprisingly, two industry commenters attacked the proposed rules.
Commonwealth Edison, while applauding NRC's efforts to expedite the licensing process, had difficulties with alternative A.
Commonwealth Edison stated that the proposed rule went too
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Tho'Commiccion 5
far as intervenors should not be permitted to use in the hearing only the facts alleged in their contentions.
Because intervenors at the time contentions are filed have not had an opportunity to review the NRC staff safety evaluation and environmental impact statement, it thought the proposal unjust.
In addition, Common-wealth Edison stated that if a genuine issue appropriate for adjudication exists, an intervenor should have a reasonable opportunity to develop the facts in support of its position.
It emphasized though that it is clearly permissible and desirable for the Commission to require that the basis for a contention must include some alleged facts which, if proven, would support the contention.
Commonwealth Edison also had some problems with alternative B.
While it supported overruling Allens Creek and stated that it is unreasonable to waste resources litigating frivolous contentions, commonwealth Edison believes alternative B would be counterpro-ductive.
It claims the proposal would encourage arcane argument about the materiality of facts with respect to the contentions they are meant to support, whereas attention should instead be focused on the materiality and merit of the contentions them-selves.
Commonwealth Edison suggested that an easier standard for admit-1 ting contentions than whether a genuine issue of material fact exists should be used.
It suggested the test should be whether the basis given for the contention, if true, would support the t
contention and whether the contention itself is material to the subject matter of the proceeding.
Isham, Lincoln & Beale submitted comments on behalf of the Public Service Company of Oklahoma which argued that the proposed rules are illegal.
The first pages of its comments trace the history of the Commission's rules on the admissibility of contentions and 1
the various criticisms of the rule that have been voiced over the years.
It then argued that although alternative B would eliminate frivolous issues from the hearings, it should not be adopted l
because it is not legally supportable.
It claimed that the proposal requires too much evidence too soon in the proceeding and therefore would contravene the administrative due process requirements of the Administrative Procedure Act and the attend-ant case law.
It stated that legal objections to alternative B could be removed if NRC permitted a limited period of discovery before would-be intervenors are required to specify their conten-tions.
This would permit intervenors the opportunity to ferret out " facts" to support each contention, including references to the specific sources and documents relied upon.
After this limited discovery it would not be unreasonable to provide that factual allegations be of sufficient weight and substance to i
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The Commiccicn 6
" demonstrate that there is a genuine issue of material fact to be heard."
The same commenter also had difficulties with alternative A.
It noted that the Commission's Statement of Considerations asserted that the proposal "would permit the staff or applicant to seek and the presiding NRC official to compel a more specific or definite statement".
It stated that such motions usually contri-bute nothing but delay to the proceeding, and the objective of a more particularized contention is rarely attained.
It also asserted that a danger exists that if alternative A is enacted the boards would misinterpret it and apply it in such a fashion that the standard for admissibility of contentions will be no different from that proposed in alternative B.
As noted above, the commenter believes that standard is illegal.
Isham, Lincoln & Beale concluded its comments with a recommenda-tion that the Commission not enact a revised rule pertaiaing to contentions, but instead issue a policy statement.
That policy statement would further clarify the " basis" requirement and overrule several Appeal Board decisions which interpret " basis" as not requiring would-be intervenors to set forth facts in support of a contention.
The remaining industry commenters supported the proposed changes,'
particularly alternative B, stressing that the standards for admission of contentions should be at least as stringent as those for motions for summary disposition.
In addition, alternative A would not overrule Allens Creek.
Industry commenters stated that even if the Commission adopted alternative A, it should include that portion of alternative B which provided thau evidentiary hearings would not be held on questions of law.
Legal issues would be resolved by briefs, and, if necessary, oral argument.
It was also suggested that alternative A be avised to incorporate the portion of alternative B which provides that a contention shall not be admitted if the facts asserted are not legally sufficient to support the contention or if the contention is immaterial or irrelevant to the proposed action which is before the licensing board.
Some commenters stated that they would support an even higher threshold than that set forth in alternative B if it could be devised.
Other industry commenters suggested that the Commission emphasize in the Statement of Considerations that the boards are to enforce strictly the revised rule.
Other industry commenters stated that as a matter of fairness to intervenors, modifications to alternative B should be made.
One commenter suggested that if the licensing board member relies on his or her own technical knowledge that information must be the
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type of information of which the presiding officer may take official notice, the information must be brought to the attention of the parties prior to decision, and pirties adversely affected must be given the opportunity to contravene the information.
NRC regulation, 10 CFR S 2.743(1), requires these procedures when official notice is taken of a fact.
Another stated that if the rule is adopted the NRC should establish another forum outside the licensing hearing where members of the public may express their views on the application.
B.
Analysis NOTE:
Pages 8-21 have been deleted.
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The Comission 22 1
2.
Limit the Number of Interrogatories That Could be Filed Currently, parties to NRC proceedings may file an unlimited number of interrogatories on another party.
If a party is over-whelmed with interrogatories it can seek a protective order from the board (which would relieve the party from the obligation to respond to the objectionable interrogatories) on the grounds that the intetrogatories are annoying, oppressive, or impose an undue burden or expense.
The Commission sought comment on a proposed 1
a y.
s Tha Commiccicn 23 rule which would provide that unless leave to file additional interrogatories is granted by a licensing board, parties may-not file more than 50 interrogatories on another party in a single NRC proceeding.
Th9 board would authorize filing of additional interrogatories if it determined that (a) a response to the extra interrogatories is essential for the party to prepare adequately its case, taking into account the number of contentions in the proceeding, the complexity of issues, and timing of issuance and number of staff / applicant documents; (b) the infor-mation sought is not otherwise reasonably available; and (c) the party was not improvident in its overall use of its first 50 interrogatories.
A.
Summary of comments The nuclear industry is divided on whether the Commission should adopt the proposed rule.
The industry commenters that supported the rule in most cases provided no reasoning.
The strongest state-ment of support for the proposal cama from a utility commenter who argued that compliance with requests for interrogatories sometimes had been burdensome.
The utility believed that the proposed rule would require participants to i fine their requests to cover only information that is truly material and germane, yet would provide the licensing boards with sufficient flexibility to permit further discovery upon a proper showing.
Another commenter stated that
'because parties would have to be more precise and articulate in drafting interrogatories, the proceeding would be more efficient and could be conducted more expeditiously.
Industry also cited the practice of several U.S. District Courts which impose similar limits on interrogatories.
The proposed rule was opposed by all intervenor commenters (save one) and a substantial number of industry commenters.
The inter-venors argued that serving interrogatories is the cheapest means to obtain information.
Intervenor commenters stated that because of limited financial resources they could not afford to use alter-native means of discovery, such as the taking of depositions.
Therefore, intervenors claim that the proposed rule would severely inhibit their ability to participate meaningfully in NRC proceedings.
Because of the complexity of NRC licensing cases, several intervenor and industry commenters expressed the concern that a fifty inter-rogatory limit is unrealistically low.
One intervenor commenter argued that if the proposed rule were adopted applicants might be less forthcoming in voluntarily providing information to intervenors because it could adopt a strategy of answering 50 interrogatories and then fighting all additional requests for information.
One industry commenter suggested that the limit be set at 50 interroga-tories per contention.
Another argued that the proposed rule should not be applied to antitrust proceedings.
Tha Commiccien 24 Several commenters asserted that the present rules provide adequate protection for a party who believes that a burdensome number of interrogatories have been filed upon it and' therefore there is no need to adopt a limit on interrogatories.
Commenters representing both intervenors and the nuclear industry also argued that the proposed rule would be counterproductive as it would lead to endless delay.
This view was best expressed in comments submitted by the law firm of Shaw, Pittman, Potts &
Trowbridge on behalf of 14 utilities.
Shaw Pittman argued that in many proceedings the fifty interrogatory limit will be insufficient.
Therefore, the parties frequently would be required to seek authorization from the board to file additicnal interrogatories.
In Shaw Pittman's view if the board were to grant the request this would convert the first round of discovery into two time-consuming rounds.
In addition, it expressed the concern that prompt decisions would not be rendered on the request because disputes would arise.over whether a subpart of an interrogatory should be counted as a separate interrogatory, whether the infor-mation sought is truly essential to the preparation of a party's case, whether the information could be readily obtained from other sources, and whether the requester improvidently used its first 50 interrogatories.
Shaw Pittman further stated that intervenors may enter the hearing process with little or no background information on the public record in support of its contentions and that the process would best be served if the parties are able to elicit all available information relevant to the intervenor's contentions.
Several commenters expressed a concern about the criteria proposed by the Commission for determining whether additional interroga-tories should be permitted.
Some thought the criteria were too vague and would inevitably invite disputes on how they should be applied.
Others felt that the proposed requirement that the board determine that the information sought was essential to the preparation of the party's case is inappropriate because its application required the board to evaluate the party's litigation strategy and how the information sought fit into that strategy.
The Union of Concerned Scientiste challenged the Commission's assertion that the proposed rule is consistent with the practice of some 20 United States district courts.
UCS relied upon an en banc decision of the United States District Court for the Western District of Missouri, Crown Center Redevelopment Corporation v.
Westinghouse Electric Corporation, 82 F.R.D.
108 (April 4, 1979),
which explained the rationale behind that court's adoption of a rule which prohibited filing of more than twenty interrogatories without securing permission from the court to do so, and dis-cussed how the rule is implemented.
In its opinion the court l
Tho Cosmiccien 25 asserted that it did not apply the rule to complex litigation.
It also stated that a party who wished to file more than 20 interrogatories on another party should seek the consent of that party to do so.
If the party consents, no authorization from the court is required.
If the party refuses to consent, a motion should be filed with the court requesting leave to file the additional interrogatories.
The court indicated that it would grant such motions if the additional interrogatories "are reason-ably calculated to advance the orderly pretrial development of the case".
This is a far less stringent standard than that proposed by the Commission.
4 The law firm of Isham, Lincoln & Beale attached to its comments submitted on oehalf of a utility a memorandum which surveyed the practices of the federal district courts which have set a limit on the number of interrogatories that may be served.
Most of the courts surveyed had rules which provided that the court would
. grant motions seeking authorization to file additional interroga-tories if the proponent made a showing of " good cause".
One court requires counsel to state the necessity for the information sought, its relevance, whether grant of the request would lead to 3
production of relevant information, and whether the information is readily available from other sources.
B.
Analysis and recommendations l
It is not clear whether adoption of the proposed rule would produce net benefits.
On the positive side, the comments indicate that if the Commission were to adopt the proposed rule it might help curtail discovery abuses by requiring parties to more care-fully frame their discovery requests so that only information that is truly material and germane is sought.
Because fewer interroga-tories would be posed, the technical staff and the other parties' experts would be required to devote less time and resources in responding to interrogatories.
This theoretically could expedite the overall licensing process because the NRC staff resources that are presently being used to respond to interrogatories filed in a given case would-be less than at present, and thus the staff would have greater resources available to prepare safety evaluation reports or respond to interrogatories in other proceedings.
However, if the proposed rule is adopted, it could also prolong discovery and delay some proceedings.
Because of the complexity of NRC proceedings, one should expect that in most, if not all, contested licensing proceedings, at least one party will deem 50 interrogatories to be insufficient and will seek leave from the Board to file additional interrogatories.
This will result in disputes over whether the criteria used by the boards in ruling on such requests are met.
It will take time for the Boards to resolve the disputes.
I i
Tha Commiccien 26 Whan the disputes occur early in the proceeding, the rule would probably have the effect of prolonging the discovery process, but should not adversely affect the commencement of the hearing.
That date is tied to the publication of required staff SERs.
- However, once the staff publishes its last SER required for the commencement of the hearing requests to file additional interrogatories could generate disputes which would probably delay the proceeding.
We do not have an adequate information base to assess the experi-ence of the twenty or so federal district courts which have adopted rulings limiting use of interrogatories.
One group which has apparently examined the federal court experi-ence is the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States which in June 1981 sought public comment on a " Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure."
Those Rules are binding on all federal courts.
Although the proposed revisions explicitly provida authority for federal courts to impose limits on the number of interrogatories that may be filed in a given case, the Committee is not proposing that a numerical limit on interroga-tories be imposed.
In its note explaining the fr posed changes relating to discovery, the Committee stated that ander the proposed rules:
In an appropriate case the court could restrict the number of depositions, interrogatories, or the scope of a production request.
But the court must be careful not to deprive a party of discovery that is reasonably necessary to afford a fair opportunity to develop and prepare the case.
OGC believes that some of the concerns expressed regarding the amount of board involvement required to implement the rule could be substantially reduced if the Commission were to adopt a rule similar to that used by the District Court for the Western District of Missouri that would previde that leave from the court to file
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additional interrogatories is not required if the other party consents to the submission of the extra interrogatories.
Parties will not always consent though, so some delay will be caused by the need to resolve disputes.
The Chairman of the ASLAP, OELD and OGC believe that on balance the Commission should adopt a modified version of the proposed rule which would provide that no party may file more than 50 interrogatories on another party in a single proceeding, unless consent is received from the other party to file additional interrogatories or the Board so orders.
Thus, the Board would get involved only if the party refused to consent.
In determining whether additional interrogatories should be granted the three
Tho Cosmiccion 27 criteria that were in the proposed rule should be adopted. 10/
These are sufficiently-flexible so that parties will be able to get essential information.
Because of considerations of fairness the rule would be applied prospectively.
In the past parties may not have been as prudent as they might hsve been in framing interrogatoried because there was no limit and therefore they should not bo penalized.
Thus, in ongoing proceedings, interroga-tories filed prior to the effective-date of the rule would not count against the limit.
Because the Commission would be breaking new ground and the benefits are so unclear, OGC suggests that the Commission direct the chairman of the ASLBP and the Executive Legal Director to provide the Commission with an evaluation of the rule six months after it takes effect.
This will permit the Commission to make any required modifications at an early date.
OELD supports this proposal as a step in the right direction, but believes the Conimission should examine the issue whether discovery addressed to the mental processes of the staff should be permitted.
OELD views on this later issue are appended to this paper (Appen-dix 1).
The ASLBP opposes adoption of the proposed rule.
While the Panel wholeheartedly endorses the principle of keeping discovery within manageable limits, it is convinced that the proposal to limit interrogatories to 50 per proceeding will not expedite proceedings but rather delay them.
Fifty is so arbitrarily low as to guaran-tee delay.
Inevirable and numerous filings of motions, responses thereto, and review by boards of all interrogatories permitted and requested can only require substantial amounts of additional time under Part 2 rules.
The average number of contentions filed in ten pending operating license proceedings surveyed by the ASLBP is approximately 14.
If interrogatories are arbitrarily limited to 50, each of the parties would be entitled to approximately 3.5 interrogatories per contention.
The number of contentions for these ten proceedings ranges from three to 27, so that the number of interrogatories per party per contention ranges from approximately 1.9 to approximately 16.7.
~~10/
The Board would authorize the filing of additional interroga-tories if it determined that (a) a response to the extra interrogatories is essentia.1 for the party to prepare ade-quately its case, taking into account the number of conten-tions in.the proceeding, the complexity of issues, and timing of issuance and number of staff / applicant documents; (b) the information sought is not otherwise reasonably avail-able; and (c) the party was not improvident in its overall use of its first 50 interrogatories.
=
R Tho Cammiccicn 28 Thus, because the limitation to 50 interrogatories per party is completely unrelated to the number or complexity of the contentions in the case, it believes requests for additional interrogatories are inevitable.
This in turn will require boards to review and rule upon many specific interrogatories which, absent the limitation, probably would have been answered.
All of this will produce needless delay while the parties await rulings on interrogatories that, in most cases, will be approved.
Because an answer often leads to another ques discovery progresses. tion, this delay will be compounded as The ASLBP does not believe that the provision requiring board rulings only on objection will alleviate this situation -
given the litigiousness of the proceedings and the arbitrariness of the limitation.
for fear of prejudicing future objections. Parties will be reluctant to answer Interro Further, additional delay will be encountered while awaiting objections.
The ASLBP believes the limitation also places applicants and staff at a disadvantage.
intervenors ranged from one to five.In the ten proceedings sampled, the number of Applicant and staff always constitute two parties.
If the limitation is adopted, it believes intervenor groups will not seek to intervene on behalf of their members as a single party, but rather will have individual members intervene to maximize their discovery.
An example of this effect of the limitation can be seen by examining one of the ten proceed-ings where five intervenors sponsored 27 contentions.
would have approximately nine interrogatories per contention, while Intervenors applicant and staff would each have less than two por contention.
To redress this imbalance, applicant and staff would probably resort to more expensive and time consuming depositions.
If intervenor groups were to take full advantage of this quirk of the limitation, they would have each individual intervenor sponsor only one contention.
Thus, each time a contention was not admitted, an appeal would be permitted, further complicating and delaying t' proceeding.
Thus, the ASLBP believes the limitation will delays at cr!cical points in the proceedings. produce needless there are h<tter ways to control discovery, The ASLBP believes responsibility for conducting discovery is to continue to restparticularly if primary with the litigants and not the boards.
The boards presently have the authority under Part 2 to limit the number of interrogatories filed by the parties.
While this author-ity is not specifically set forth, it is implicit in 10 CFR SS 2.718 and 2.740 establishing the boards' general authority.
the commission specifically affirmed this authority in its Statement
- Further,
6 The commission 29 of Policy on the Conduct of Licensing Proceedings of May 20, 1981.
There the commission reminded the Boards that they may limit the number of interrogatories in accord with the rules.
The standards for determining whether additional interrogatories are warranted present further problems.
Application by different Boards to different situations will inevitably result in different interpretations at the outset.
Should interlocutory appeals be 4
granted to losing parties, even further delay will result.
The ASLBP emphasizes that a more effective control over interroga-tories is suggested in a proposal of the Judicial Conference Advisory Committee on the Federal Rules of Civil Procedure (dFRCP").
Proposed amendments to those rules, particularly Rule 26, would i
give courts greater discretion in limiting the scope o# discovery without the need for a prior motion.
Tt amendments recognize the necessity of allowing judges greater flexibility in dealing with the prob 7. ems of the overuse and misuse of discrvery without placing arbitrary constraints on the discovery process.
As previously noted, the Advisory Committee note to the proposed 3
amendments states that:
"In an appropriate case the court could 3
restrict the number of depositions, interrogatories, or the scope of a production request.
But the court must be careful not to deprive a party of discovery that is reasonably necessary to afford a fair opportunity to develop and prepare the case."
It must not be forgotten that discovery can and does shorten hearings.
The ASLBP believes that the amendments proposed to Rule 26 of the Federal Rules of. Civil Procedure provide a better model to follow in amending the NRC discovery rules.
The proposed amendments and the Advisory Committee 9 comments are attached.
They provide a flexible approach in tailoring discovery limitations to the requirements of any particular proceeding.
They would place responsibility for managing discovery not only on the boards, but on the parties as well, and would provide for sanctions against a party who did not in good faith abide by their provisions.
These sanctions could be imposed whenever a party abused the discovery i
practice.
The ASLBP believes specific authority could be added to these provisions to empower boards to place specific limits on the number of interrogatories which could be posed with respect to any contention following the issuance of the last SSER which is a condition precedent to the hearing.
Such limits would then be tailored to the need for discovery and would avoid the arbitrari-ness of the proposed rule.
As a result, there would not be a need in the usual case for the parties to seek additional discovery, and the needless delay which would accompany these requests would be avoided.
The Commission 30 The ASLBP believes that modification of the Commiss!.ru's discovery rules along the lines outlined above would speed ths proceedings.
It firmly believes that adoption of the arbitrary limitation of 50 interrogatories per party per proceeding can only serve to produce delay.
3.
Permit the Licensing Board to Order Oral Responses to Motions to Compel Discovery The Commission sought comment on a proposed rule which would give licensing boards the authority to order the parties to provide oral responses to motions to compel discovery.
The response could be made in a conference telephone call or othen pre-hearing conference.
A.
Summary of comments The industry's support for the proposal was lukewarm.
The inter-venors generally opposed the proposal.
Both industry and citizen commenters thought the proposed rule to be deficient because it did not provide that a writte'; record of the argument would be prepared.
Some suggested that the parties be permitted to provide the board with written summaries of their position following the argument.
Others suggested that a transcriber be made a party to the call or hearing.
The parties were concerned that without a written record, opportunities to appeal the decision of the board could be prejudiced.
It was also suggested that the boards require oral responses only in those proceedings where plant construction is projected to be completed before the licensing process.
The commenters argued that use of oral responses should not be a routine procedure but used only when speed is essential.
The commenters also suggested that if the proposed rule is adopted, parties be given ample time to prepare their oral argument by specifying a minimum preparation time.
Commenters also asserted that the costs of conference telephone calls should be borne by the board, and that all parties in the hearing should be included in the calls.
Tho commiccicn 31 B.
Analysis and recommendations The Chairman of the ASLAP, OELD, and OGC believe that the Commis-sion should adopt a rule which would permit the licensing boards to order parties to provide oral responses to motions to compel.
While the ASLBP has no objection to the proposal, it finds it unnecessary because it believes the boards currently have that i
authority under 10 CFR 2.718.
The ASLBP notes as well that because a' motion to compel responds to an objection to a dis-covery request, in most instances there is no need for any response to the motion.
The ASLBP believes that this proposal contains so'many other procedural constraints concerning court reporters, standards, etc., as to make its usefulness question-i able, and.that there is increasing use throughout the judiciary 3
of oral argument by telephone conference call.
The practice was discussed recently at some length at the annual meeting of the 2
j Judicial Administration Division of the American Bar Association.
OGC believes the present regulations (10 CFR 2.730(c)) appear to give parties the right to provide written responses to written motions.
We therefore believe a rule change is necessary.
The Chairman of the ASLAP, the ASLBP, OELD, and OGC do not believe that it is necessary to have a court reporter transcribe the argument made in telephone conference calls or have minutes of the argument prepared and served on the parties.
Instead, we believe the rule should irovide that if the board requires oral responses, it shall issue a written order on the motion to compel. 11/
In that order it would be required to summarize the views of~the parties.
This will create an adequate record for review.
If a party disagrees with the Board's summary of its views, it could file a motion with the Board requesting that the order be modified so that it accurately reflects the views articu-lated by the party during the conference call.
The Statement of Consideration should also state that oral responses should only be required where early completion of the proceeding is essential because, for example, construction of the facility may be finished prior to the completion of the hearing.
The Statement should further advise the boards that all parties are to be invited to participate in the conference call, and that the boards should pay for the call.
Currently, the boards pay for the calls they initiate.
EbI The board could, of course, issue an oral order which would l
be effective immediately and follow it up with a written order.
See 10 CFR 2.730(e),
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4 The Commission 32 The Chairman of the ASLAP, the ASLBP, OELD and OGC do not believe
~'
that the rule should afford parties the right to submit written pleadings following oral argument.
This could preclude a board from issuing an oral ruling during the conference call (a written
~ ruling would follow).
Moreover, a board after hearing oral argument has the discretion to require written followup pleadings if it. believes this would assist it in reaching a decision on the motion to compel.
Finally, the-four offices recommend that the rule should not pro-vide a minimum preparation time that would be afforded the parties before they provided their oral response.
A party responding to a motion to compel covering one interrogatory would obviously need less time to prepare for argument than a party responding to motions covering 25 interrogatories.
Therefore, we believe the board should.be advised in the Statement of Considerations to afford the parties sufficient time to respond adequately to the motion to compel, but the boards should on a case-by-case basis establish an appropriate schedule.
4.
Permit the Licensing Boards to Require Service of Documents by Express Mail The' Commission sought comment on a proposed rule which would permit the licensing boards to require service of documents by express mail (next day delivery).
Currently, the Commission's rule provid'- five days for service of documents.
If express mail is used in Lnose proceedings where it appears that construction of a facility may be finished prior to the completion of the operating license proceeding, the time provided for service of documents could be reduced to two days.
A.
Summary of contents Intervenors opposed this rule, noting the cost of express mail.
For example, to send a letter by express mail from Washington, D.C. to California will cost at least $9.00.
The more the package weighs the higher the charge.
Because of this expense, intervenors suggested that if the Commission adopts the proposed rule, it should only be required when expedition is truly necessary.
Intervenors also pointed out express mail service is not availab'.'e in all cities.
A commenter also stated that if one is not available to accept service on the first delivery attempt, the document is taken to the post office for pickup.
The commenter stated that during working hours, many intervenors would not be able to take time off from work to pick up a document at the post office and, l
Tho Commiccica 33 therefore, it might be several days before the intervenor received the document.
Industry commenters generally supported the proposed rule, but several recognized that because express mail service was not available in some cities, the licensing boards would not be able to require it in some proceedings, B.
Analysis and recommendations s
The Chairman of t'.te ASLAP, the ASLBP, OELD, and OGC recommend that the Commission should adopt the proposed rule.
The State-ment of Considerations should emphasize that the boards should require use of express mail only in those cases where expedition is necessary, such as where construction of a facility will be finished prior to the completion of the NRC proceeding, and that parties who did not wish to bear the expenses should be afforded the option of filing the document by first-class mail three days early.
Parties could use regular mail to serve copies on those parties who are not required to act in response to the pleading.
- Thus, for example, express mail would be used to serve interrogatories on the party which must respond to the request.
The other parties and the board would receive their copies of the interrogatories by regular mail.
In addition, the Statement of Considerations should state that before mandating use of express mail, the boards should ascertain whether the parties reside in areas covered by express mail service.
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Leonard Bickwit, Jr.
General Counsel Attachments:
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OELD Views 2.
Judicial Conference Advisory Committee comments DISTRIBUTION Connissioners Cormission Staff Offices Exec Dir for Operations Exec Legal Director ASLBP ASLAP Secretariat m
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APPENDIX 1 t
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OELD VIEWS I have reviewed and commented on the General Counsel's memorandum. Most of my comments have been accepted though some of then have not, at least not in their entirety.
I agree with the analysis and conclusions regarding the use of oral responses to motions to compel discovery and authorizing licensing boards to require service of documents by express mail.
I have also included some comments on the discovery issue because I believe that the 50 interrogatory recommendation presented in the General Counsel's memorandum, while a step in the right direction, does not go far enough toward attaining the Commission's basic objective of reducing the burden on staff resources and thereby expediting the licensing process.
I.
Raising the Threshold for Admission of Contentions.
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II.
Discovery As indicated in the General Counsel's memorandum I join OGC ar.d the Chairman of the ASLAB in the recommendation that the Commission adopt a modified version of the proposed rule which would provide that no party may file more than 50 interrogatories on another party in a single proceeding, unless consent is received from the other party to file additional interrogatories or a licensing board so orders. Adoption of this proposal would be a step in the right direction but would not go as far as the Commission can legally and appropriately go in reducing the delays in licensing attributable to demands upon staff resources as a result of the discovery process. Although the Commission has abandoned an earlier proposal that formal discovery against the staff be eliminated.J2 it may wish to consider further modification of a
the discovery rules to aTso limit discovery against the staff to factual material; that is, to curtail the present practice which allows detailed probing of staff mental processes.
The law is clear that the Administrative Procedure Act does not confer a right to Jan discovery in federal administrative proceedings.
NLRB v. Valley Mold Co., 530 F.2d 693 (6th Cir.), cert. denied 429 U.S. 824 (1976).
Nor is there any basic constitutional right to pretrial discovery in administrative Silverman v. CFTC 549 F.2d 28 (7th Cir.1977). What is proceedings.
required is that due proces!~ Ia,ndards of fundamental fairness be met.
In 2/
In its report on the FY 1982 Authorization Bill, the Senate Canmittee on Environment and Public Works observed:
The Committee does not intend that the interim operating license amendment be viewed as a substitute for needed administrative improvements to the licensing process itself, and the Committee expects the Commission to move forward aggressively in these areas.
At the same time, the Commission should avoid administrative changes, such as the proposal to eliminate formal discovery against the NRC staff, that are likely to create an additional lengthening of the hearing process, as well as to add further confusion to the process.
The Committee intends to monitor the Commission's efforts to further expedite the licensing process by administrative means to assure that this statutory requirement is carried out.
S. Rept. No.97-113 13-14 (Emphasis added.)
o i
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-S-this context, the principal concern is the avoidance of surprise at the evidentiary hearing to a party who has not had discovery.
Current NRC staff practices regarding information availability are more than 7
adequate to fairly apprise parties of staff positions. The staff routinely places in the public document rooms information which is relevant and material to its evaluations. The SER which doceents the staff's position is available to parties well in advance of the hearing.
Staff testimony must be profiled prior to the hearing.
The Commission's Policy on Differing Professional Opinion routinely surfaces disagreements among technical members of the staff which are placed in the public docment rooms. The board notification policy requires the staff to infom the presiding board and
'i f'rticipating parties of relevant infomation. The Freedom of Infomation Act (FOIA) is available and is currently used extensively by parties in lieu of fomal discovery to obtain staff documents.
All of these avenues, which either place information in the public document rooms as a matter of routine or as a result of an FOIA request, demonstrate that the amount and quality of staff infonnation available to the parties to a proceeding is more than adequate to satisfy due process standards of fundamental fairness. Beyond this, the purpose of formal discovery - to l
prevent surprise at a hearing where a party has prepared its case assuming certain facts only to " discover" at the hearing that the opponent was actually relying on facts different from those supposed - is served, as far as discovery against the staff is concerned, by the less formal methods l
(listed above) which assure the public availability of relevant and material information.
For this reason, the Commission's present rules already provide that discovery against the staff is somewhat more restricted than is discovery against other parties. As the Appeal Board has summarized the situation:
Discovery againsc the staff is on a different footing.
With limited exceptions, Commission regulations make staff documents that are relevant to licensing proceedings routinely available in the NRC Public Doc uent Room.
10 CFR 2.790(a). The contenpla-tion is that these "should reasonably disclose the basis for the staff's position," thereby reducing any need for fonnal discovery.
Reflective of that policy, the Rules of Practice limit docuentary discovery against the staff to items not reasonably obtainable from other sources,10 CFR 2.744; require a showing of " exceptional ciremstances" to depose staff pc sonnel, 10 CFR 2.720(h) and 2.740a(j); and allow interrogatories addressed to the staff only "where the information is necessary to a proper decision in the case and not obtainable elsewhere."
(.
. - =-_- -
- See10CFR2.720(h)(2)(ii).
In addition, the licensing board's advance permission is needed to depose staff members or to require the staff to answer written interrogatories.
(Citations 4
omitted).
Ponnsylvania Power and Licht Co., et al. (Susquehanna Steam Electr' c 5tation Units 1 and 2), ALAB-W12 NRC 317, 323 (1980).
J The Atomic Energy Commission, in promulgating what are now the NRC's rules of practice, explained that " document discovery at the staff will be tightly restricted.
Since the routinely available docunents should
... reasonably disclose the basis for the staff's position, staff directed discovery can be limited to infomation concerning a matter necessary to a proper decision in the case and not obtainable elsewhere...." (37 FR 1
15127, July 28, 1972.) Some agencies have gone further in restricting or prohibiting discovery against their staffs.
For example, the denial by the Commodity Futures Trading Commission of all prehearing discovery was upheld
.l in 511vennan v. CFTC, supra, where the petitioner was provided in advance l
with copies of the materials to be used in the proceeding against him.
i Even the limitations on staff-directed discovery contained in the Commission's present rule, however, have not resulted in the elimination of a particularly burdensome aspect of such discovery as the Commission has, in its discretion, pemitted.
Specifica1.ly, many interrogatories to the staff request information related not only to facts, but also to the mental processes, reasoning, or rationale of the staff in reaching its technical
~
j conclusions. By answering this kind of interrogatory, the staff is i
essentially relieving intervenors of the nomal litigative burden of j
perfonning their own technical analyses and developing their own evidentiary case to support their contentions.
This goe' far oeyond the use of pretrial discovery to prevent " surprise" at an evide iary hearing.
It is an expansive use of the discovery process, not i
required law, which significantly impacts s:arce staff resources. The limitatio. 3f interrogatories against the sta/f solely to matters of fact would elim ste this practice and would enphasize, at the same time, the need for interva es to develop their own case on the basis of the documents and i
materials wh ch are readily available.
Accordingly,
$e Commission may wish to consider reducing the present impact of discovery staff resources with additional changes to the present rules which would 1 it all discovery against the staff to:
(1) factual matters rather than op aions and thought processes, (2) information which is necessary for party to prepare its case (3) infomation which is necessary to a proper decision in the proceeding, and (4) information not reasonably obtainable from any other source. The latter two restrictions are contained in the Commission's present rule on discovery by interrogatories,10 CFR 52.720(h)(2)(ii).
The present rule on deposition discovery, however, pemits i
deposition of one or more staff witnesses "regarding any matter, not privileged, which is relevant to the issues in the proceeding."
10 CFR
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12.720(h)(2)(1).
(This provision, however, does pose a higher threshold for deposition of named witnesses other than those made available by the EDO.)
To effectuate these additional restrictions on interrogatories against the staff $2.720(h)(2)(11) could be revised as follows (underlining indicates new language):
In addition, a party may file with the presiding officer written interrogatories to be answered by hRC personnel with knowledge of the facts designated by the Executive Director for Operations. Such interrogatories shall be addressed only to factual information and may not inquire as to matters of opinion, mental process, or other non-factual information held or known by NRC personnel.
Upon a finding by the presiding officer that answers to the interrogatories are necessary to a proper decision in the proceeding and that answers to the interrogatories are addressed only to factual information not reasonable obtainable from any other source, the presiding officer may require that the staff answer the interrogatories.
For interrogatories that may be directed to the staff and which the staff is required to answer under this subparagraph, the 4
limits on the numbers of such interrogatories under 62.740b(c) shall also apply.
To limit deposition discovery in the same way, 62.720(h)(2)(1) could be i
revised to read as follows (underlining indicates new language; brackets indicate deletions):
In a proceeding in which the NRC is a party, the NRC staff will make available one or more witnesses designated by the Executive Director for Operations, for oral examination at the hearing [er en-depositten] regarding any matter, not privileged, which is relevant to the issues in the proceeding.
The attendance and testimony of the Commissioners and named NRC pe.sonnel at a hearing or on deposition may not be required by the presiding officer, by subpoena or otherwise: Provided, That the presiding officer may, upon a showing of exceptional circunstances, such as a case in which a particular named NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director for Operations, require the attendance and testimony of named NRC personnel.
Depositions of NRC personnel made available by the Executive Director, or by order of the presiding officer upon a showing of exceptional circumstances, shall be permitted only if the factual information sought is not obtainable from any other source and only if such factual information is necessary to the development and presentation of a party's case.
Depositions, if permitted, shall be limited to factual information and shall not include matters of opinion, mental process, or other non-factual information.
. Adoption of these changes would also require minor conforming amendments to other sections of the regulations dealing with discovery.
If tha Commisston wishes to adopt this approach. I will prepare an appropriate notice of rulemaking. The Commission may proceed directly to final rulemaking on this matter since this reduction of the availability of discovery against the staff is encompassed within the previously published proposal to eliminate all discovery against the staff.
F l
Howard K. Shapar Executive Legal Director
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APPENDIX 2 e
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i PRELIMINARY DRAFT OF PROPOSED l
AMENDMENTS i
TO THE g
i FEDERAL RULES OF CIVIL PROCEDURE 4
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l COMMITTEE ON RULES OF PRACTICE AND PROCEDURE CF THE-JUDIC16L CONFERENCE OF THE UNITED STATES I
JUNE 1981 I
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t PROPOSED AMENDMENTS I
STANDING COMITTEE ON RULES OF PRACTICE AND PROCEDURE JtDGE EDWARD T. GIGNOUX, Chaiumn f
JLDGE CARL MCGOWAN PROF. BERhARD J. HARD JtDGE JAMES S. HOLDEN EDWARD H. HICKEY, ESQ.
PROF. PRMK J. REM'.. MON 19WICIS N. 7%RSHALL, ESQ.
JOSEPH F. SPMIOL, JR., Secretattj ADVISORY COMITTEE ON CIVIL RULES l
JUDGE WALTER R. t%NSFIELD, Chairmeat I
THCMAS S. MRTIN, DEPtJTY ASS'T JUDGE JOSEPH F. WEIS, JR.
ATTORNEY GENERAL t
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DAVID N. lENDERSON, ESQ.
JEE A.m MINSEN EARL W 1!WtER, ESQ.
JUDGE LOU!S F. OBERDORFER g3, gy;3y, eso, JUDGE PHILIP PRATT
- g. g,, g3te;N, ESO.
JUDGE WALTER J. SKINNER J. VERNON PATRit.tJR., ESQ.
MAURICEROSENB5RG,SPECIALASS'T PAUL G. ROGERS, ESQ.
TO THE ATTORNEY GENERAL 0%RLES E. WIGGINS, ESQ.
i PROFESSOR ARTHUR R. MILLER, Repo. iter i
e G3
PROPOSED AMENDMENTS l
TABLE OF CONTENTS
.Page Letter of Submission to the Bench and Bar................
G7 j
i Letter of Transmittal by the Advisory Committee to the Standing Committee on Rules of Practice and Procedure....................................
G9 Preliminary Draft of Proposed Amendments to the i
Federal Rules of Civil Procedure..................... Gil i
Rule 6.
Time................................ Gil Rule 7.
Pleadings ABowed; Form of Motions and Other Papers; Sanctions................. G12 Rule 11.
Signing of Pleadings; Sanctions............. G16 Rule 16.
Pretrial Conferences; Scheduling; M anagement......................... G20 Rule 26.
General Provisions Governing Discovery........................... G32 Rule 52.
Findings by the Court.................... G38 Rule 53.
M ast ers.............................. G 39 Rule 67.
Deposit in Court........................ G46 Rule 7 2.
Magistrates; Pretrial Matters.............. G48 Rule 73.
Magistrates; Trial by Consent and Appeal Optiens....................... G50 Rule 74.
Method of Appeal from Magistrate to District Judge under Title 28, U.S.C.
5 636(eX4) and Rule 73(d)................ G53 Rule 75, h;; dings on Appeal from Magistrate to District Judge under )(ule 73(d)............ G57 Rule 76.
Judgment of the District Judge on the Appeal under Rule 73(d) and Costs............... G61 Appendix Notlee of Right to Consent to the Exercise of CivD Jurisdiction by a Magistrate and Appeal Optien........................ G63 G5 l
PROPOSED AMENDMENTS COMMr! TEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES ADMINISTRA1TVE OFFICE OF THE UNITED STATES COURTS WASHINGTON, D.C. S0544 l
i TO THE BENCH AND BAR:
The Judielal Conference Advisory Committee on the Federal Rules of Civil Procedure has propoegd certain amendments to the Federal Rules of Civil Procedure and has requested that the proposals be circulated to the bench and bar and to the public generally for comment. The rules proposed to be amended are Rules 6, 7,11,16, 26, 52, 53, and 67. New Rules 72-76 would also be added. These proposed amendments and additions are explained in the notes accompanying the various rules which have als. been prepared by the Advisory Committee.
The Judicial Conference Standing Committee on Rules of Practice and Procedure has not yet considered the proposed amendments, but submits them herewith for public ecmment. We request that all comments and suggestions with respect to them be placed in the hands of our Committee as soon as convenient and, in any event, no later than l
Novernber 16,1981.
All ecmmunleations with respect to these proposals should be
~
addressed to the Committee on Rules of Practice and Procedure, Administrative Office of the United States Courts, Washington, D.C.
20544.
In order that persons and organizations wishing to do so may comment orally on these proposals, hearings on them will be held at the Court of Claims Building in Washington, D.C. on Friday, October 16,1981, and at the United States Courthouse in Los Angeles, Cr.ilfornia on Friday, November 6,1981. Those wishing to testify should ecntact the Secretary to the Committee at the above address prior to October 1,1981.
These proposed amendments have not yet been submitted to nor considered by the Judicial Conference of the United States or the Supreme Court.
l Edward T. Gignoux, Cha4wut Standing Comittee on Rules of Practice and Procedure Joseph F. Spaniol, Jr., Secreicuj June 20,1981 Washington, D.C.
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PROPOSED AMENDMEhTS l
- TO: THE.COMMTITEE ON RULES OF PRACTICE AND PROCEDURE l
j On behalf of the Advisory Committee on the Federal Rules of Civil Procedure I am submitting herewith various proposals to amend the Federal Rules of Civil Procedure. The proposed amendments address three subjects which have been studied by the Committee for some time: (1) reform of procedures for the holding of pretrial conferences and for the scheduling and management of litigation by district judges, (2) the control of discovery abuse, and (3) the need to conform the rules to the jurisdictional provisions of the Federal Magistrates Act of 1979.
The pretrial conference rule, Rule 16, has not been revised since it j
was originally promulgated in 1938. The proposed amendment adopts concepts and techniques designed to meet the demands of modern litigation, including the need for early exercise of judielal control, scheduling, and planning according to the needs of each case, with the object of eliminating unnecessary expense and delay.
The proposed amendments to Rules 7 and 11 would minimize abuse in the signing of pleadings and motions through more precise definition of the standards to be met by a party or attorney and by requiring imposition of sanctions for violation of these standards.
The proposed amendments to Rules 26(a), (b), and (g) would permit i
the court to limit the frequency and extent of use of different discovery methods and to protect against exesasive discovery and evasion of reasonable discovery demands by imposing upon each party or attorney the duty, before proceeding with respect to any discovery matter, to make a reasonable inquiry and to certify tisat certain standards have been met. A violation would result in the imposition of sanctions.
The changes in Rules 52(a) and 67 are simpler in nature and can j
read!!y be grasped from a reading of the text and Committee notes.
The proposed new Rules 72-76 and amendments of Rules 6 and 53 are designed to conform them to and make them consistent with the 1979 amendments to the Federal Magistrates Act.
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F FEDERAL RULES OF CIVIL PROCEDURE j
We ask that these proposals be circulated as widely as possible to
.l members of the bench and car and to the public generally with a request 11 for views and comments thereon.
We further ask that the Advisory Committee be permitted to conduct two or more days of public hearings to-l afford an opportunity for the oral presentation of views.
The Advisory Committee continues to have under consideration
'i suggestions for amendments to various other civil rules, including Rules l'
4(c), relating to service of process by United States Marshals.
The Committee may shortly amend the present submission by an addendum relating to Rule 4(c).
Respectfully submitted, I
Walter R. Mansfield, ChalAman Mvisory Conmittee on Civil Rules s
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June 20,1981 l
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RULE 16 FEDERAL RULES OF CIVIL PROCEDURE j
expenses, including attorney's fees, caused by noncompliance.
The contempt sanction, however, is only available for a violation of a court i
order. The references in Rule 16(f) are not exhaustive.
As is true under Rule 37(bX2), the imposition of sanettons may be sought by either the court or a party. In addition, the court has discretion r
to impose whichever sanction it feels is appropriate under the circumstances.
Its action is reviewable under the abuse-of-discretion 4
standard. See National Hockey League v. Metropolitan Hockey Club. Inc.,
427 U.S. 639 (1976).
Rule 26. General Provisions Governing Discovery lil 1
(a) DISCOVERY METHODS. Parties may obtain discovery by 2
' on~e or more of the following methods:
depositions upon oral 3
examination or written questions; written interrogatories; g
I 4
production of documents or things or permission to enter upon land i
5 or other property, for inspection and other purposes; physical and 6
mental examinations; and requests for admission. Valees the eetert 7
erders otherwise under subihkr. fe) of this ruler the frequency of 8
use of these methodsis notilmited:
9 (b) SEOPE OF BIBEOVi!RY DISCOVERI SCOPE AND 10 LIMITS.
Unless otherwise limited by order of the court in I
11 accordance with these rules, the scope of discovery is es follows:
12 (1) In General. Parties may obtain discovery regarding I
13 any metter, not privileged, wh!ch is relevant to the subject k
14 matter involved in the pending action, whether it relates to the 15 elaim er defense of the party seeking discovery or to the claim 16 or defense of any other party, including the existence, 17 description, nature, custody, condition and location of any 18 books, documents, or other tangible things and the identity and i
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PROPOSED AMENDMENTS RULE 26 19 location of persons having knowledge of any discoveraNe 20 matter. It is not ground for objection that the information 21 sought wul te inadmisslWe at the trial if the information sought 22 appears IassonaWy.oaleutated to lead to the discovery of 23 admissible evidence.,
24 The frecuency or extent of use of the dseovery methods 25 set forth in subdivision (a) may be limited by the court if it 26 determines thatt (1) the discovery sought is unreasonably 27 eummulative or duplicative, or obtainaWe from some other 28 source that is either more convenient, less burdensome, or less 29 expensive; (11) the party seeking diseevery has had ample 30 opportmity by discovery in the action to obtain the information j
nsive.
31 sought; or (111) the discovery is unduly burdensome et
l 32 given the needs of the case. the amount in controversy, the 33 parties' avaDaNe resources, and the values at stake in the 34 litigation. The court may act upon its own initiative or pursuant 35 to a motion under subdivision (c).
36 37 (g) SIGNING OF DISCOVERY REQUESTS, RESPONSES, AND 38 OBJECTIONS. Every request for discovery, or response or objection 39 thereto, made by a party represe6ted by an attorney shall be signed 40 by at least one attorney of record in his individual name, whose i
41 address shall be stated. A party who is not represented by an attorr.Jy shall sign the request, resoonse, or obfection and state his 42 G33 i
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RULE 26 FEDERAL RULES OF CIVIL PROCEDURE 43 address. The signature of the attorney or party constitutes a 4
44 eertification that he had rea' the request, response, or obleetio r, d
45 and that it is (1) to the best cf his knowledge, information, and 46 belief farmed after a reasonable inquiry consistent with these rules 47 and warranted by existing law or a good faith argument for the d
48 extension, modification, or reversal of existinglaw;(2) interposed in di 49 rood faith and not primarily to cause delay or for any other I
I 50 improper purpose; and (3) not unreasonable or mduly burdensome or 51 expensive, riven the nature and complexity of the ease, the g
52 discoverv already had in the ease', the amount in controversy, and 53 other values at stake in the litiration. If a recuest, reseonse, or 54 objection is not signed, it shall be deemed ineffeetive.
j 55 If a certification is made in violation of the rule. the court, t
56 upon motion or upon its own initiative, shall imoose uoon the oceson 37 who made the certiffeation, the party on whose behalf the recuest, 58 response, or obleetion is made, or both, an an-ooriate sanetton, 59 which may include an order to my to the other party or parties the 60 amount of the reasonable expenses occasioned thereby, including a 61 reasonable attornev's fee.
fi ADVISORY COMMITTEE NOTE Excessive discovery and evasion or resistance to reasonable discovery requests pese significant problems.
Recent studies have made some attempt to determine the sources and extent of the difficulties. See Brazil, Civil Discoverv: Lawyers' Views of its Effectiveness, Prineioal Problems and Abuses, American Bar Foundation (1980); Connolly, Holleman
& Kuhlman, Judicial Controls and the Civil Litirative Process: Discovery, Federal Judicial Center (1978); Ellington, A Study of Sanctions for i
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PROPOSED AMENDMENTS RULE 26 I
Discovery Abuse, Department of Justfee (1979); Schroeder & Frank, The Proposed Changes in the Discovery Rules,1978 Ariz. St. L T. 475.
The purpose of discovery is to provide a mechanism for making relevant information available to the litigants. " Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." Hickman v. Taylor, 329 U.S. 495, 507 (1947). Thus the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues by overuse of dseovery or unnecessary use of defensive weapons or evasive responses. ~ All of this results in excessively costly and timmnsuming activities that are disproportionate to the nature of the case, the amount j
involved, or the issues or values at stake.
Given our adversary tradition and the current discovery rules, it is not surprising that there are many opportunities, if not incentives, for attoraeys to engage in discovery that, although authorized by the broad, permissive terms of the rules, nevertheless results in delay. See Brazil, The Ariversary Ct aracter of Civil Discoverv: A Critique and ProWals for Chanze, 31 Vand.L.Rev. 1259 (1978). As a result, it has been said that the rules have "not infrequently (been) exploited to the disadvantage of justice."
Herbert
- v. Lando, 441 U.S. 153, 179 (1979) (Powell, J.,
concurring). These prtetiees impose easts on an already overburdened system and impede the fundamental goal of the "just, speedy, and inexpensive determination of every action." Fed. R. Civ. P.1.
Subdivision (ah Discovery Methods. The deletion of the last sentence of Rule 26(aXI), which provided that unless the court ordered otherwise under Rule 26(c) "the frequency of use" of the various discovery methods was not to be limited,is an attempt to address the problem of duplicative, redundant, and excessive discovery and to reduce it. The amendment, in conjunction with the changes in Rule 26(bXI), is designed to encourage district judges to identify instances of needess escovery and to limit the use of the various discovery devices accordingly. The question may be raised by one of the parties, typically on a motion for a protective order, or by the court on its own initiative. It is entirely appropriate to consider a limitation on the frequency of use of dscovery at a discovery conference under Rule 26(f) or at any other pretrial conference authorized by these rules. In considering the discovery needs of a particular ease, the court should consider the factors described in Rule 26(bX1).
DMivision (bh Discovery Scope and Limits. Rule 26(bX?' has been amen & lo add a sentence to deal with the problem of over-Qscovery.
The objective is to guard against redundant te disproportionate dscovery by F ving the court authority to reduce the emeunt of dscovery that may i
be drected to matters that are otherwise po;*r subjects of inquiry. The new sen 2 nee is intended to encourage judges to be more aggressive in identifying and esecuraging dscovery c /eruse. The growids mentioned in G35
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_m-_-__
F
)
Y RULE 26 FEDERAL RULES OF CIVIL PROCEDURE
.i the amended rule for limiting discov.ery reflect the existing practice of many courts in issuing protective orders under Rule 26(c). See, e..,
'Carlson Cos. v. Sperry & Hutchinson Co.,374 F.Supp.1080 (D. Minn.1 4 ;
Dolgow v. Anderson, 53 F.R.D. 661 (E.D.N.Y.1971r, Mitchell v. Amerlean Tobsceo Co., 33 F.R.D. 262 (M.D.Pa.1963); Welty v. Clute,1 F.R.D. 446 (W.D.N.Y. 1941).
On the whole, however, district judges have been reluctant.to limit the use of the discovery devices. See,_e.L., Apeo OD Co.
- v. Certified Transo., Inc., 46 F.R.D. 428 (W.D.Mo.1969). See generally 8 p
Wright & Miller, Federal Practice and Procedure: Civ3 55 2036, 2037, 2039, 2040 (1970).
The rule contemplates greater judicial involvement in the discovery process, and thus acknowledges the reality that it cannot always operate on i
a self-regulating basis.
See Connolly, Holleman & Kuhlman, Judicial Controls and the Civil Litigative Process: Discoverv 77, Federal Judicial Center (1978). In an appropriate case the court could restrict the number of deg.itions, interrogatories, or the scope of a production request. But the court must be careful not to deprive a party of discovery that is reasoaably necessary to afford a fair opportunity to develop and prepare j
the case.
i The court may act on motion, or its own initiative. It is entirely appropriate to resort to the amended rule in conjunction with a discovery conference under Rule 26(f) or one of the other pretrial conferences authorized by the rules.
Subdivision (eh Signing of Discovery Requests, R esoonses, and Obfections. Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes cf Rules 26 through 27. In addition, Rule 26(g)is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection. The term " response includes answers to Interrogatories and to requests to admit as well as responses to production requests.
If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avo!d abuse. With this in mind, Rule 26(g), which parallels the amend" ents to Rules 7(bX3) and 11, requires an attorney or unrepresented party to sign every discovery request, response, or objection.
Motions relating to discovery are governed by Rule 7(bX3). The signature is a certification of the elements set forth in Rule 26(g). Like Rules 7(b)(3) and 11, subdivision (g) provides that the discovery request, response, or objection is ineff ective if unsigned.
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PROPOSED AMENDMESTS RULE 26 Although the certification duty requires the lawyer to pause and consider the reasonsWeness of his request, response, or objection, it is not meant to disecurage or restrict necessary and legitimate discovery. The rule simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection.
l The. duty to make a. "reasonaNe inquiry" is satisfied if the i
investigation undertaken by the attorney and the conclusions & awn t
It is an objective therefrom are reasonaNe under the circumstances.
standard similar to the one imposed by Rules 7 and 11. See the Advisory Committee Note to Rules 7 and 11. See also Kinee v. Abraham Lincoln In making the Ped. Sav. & Loan Ass'n, 365 P.Supp. 975 (E.D.~Pa.1973).
Inquiry, the attorney may rely on assertions by the client and on
.l communleations with other counsel in the case as long as that reliance is appropriate under the circumstances. Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances.
i l
2*tle 26(g) does not require the signing attorney to certify the truthfulne of _ the ellent's factual responses to a discovery request.
Rather, the signature certifies that the lawyer has made a reasonable effort to assure that the ellent has provided all the information and documents avallaNe to him that are responsive to the discovery demand.
i Thus, the lawyer's certification under Rule 26(g) should be distinguished from other signature requirements in the rules, such as those ir. Rules 30(e) l and 33. -
j The signing requirement means that every discovery request, respcnse, or obleetion should be grounded en a theory that is reasonable under the precedents or a good faith belief as to what should te the lav.r.
This standard is heavDy dependent on the circumstances of each case. The i
certi!! cation speaks as of the time it is made. The duty to supplement discovery responses continues to be governed by Rde 26(e).
A faDure to sign means that the request, response, or objection is ineffective and may be ignored by the recipient and the court. A failure to sign a response or an objection may lead to the : nposition of a sanction under Rule 37 fer noncompliance with a discovery request.
Concern about discovery abuse has led to widespread recognition that there is a need for more aggressive judicial control and supervision. ACF_
- v. EEOC, 439 U.S.1081 (1979) (certiorari denied) (Powell, IndustrI_g Inc J., diwnting). Sanctions to deter discovery abuse would be rure effective If *.ney were diligently applied"not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be National tempted to such conduct in the absence of such a deterrent."
90ekey League v. Metropolitan Hockey Club,427 U.S. 639,643 (1976). See
- dso Note, The Emer;rinir Deterrence Orientation in the imposition of L!seovery Sanctions, 91 Harv. L. Rev. 1033 (1978). Thus the Pemise of G37
,f l.
RULE 26 FEDERAL RULES OF CIVIL PROCEDURE Rule 26(g) is that imposing sanctions on attorneys who fab to meet the rde's standards wR1 significently reduce abuse by imposing disadvantages therefor.
Because of the asserted reluctance to impose sanctions on attorneys who abuse the discovery rules, see Brazil, CivD Discovery: Lawyers' Views of its Effectiveness, Princloal Problems and Abuses, Ameriesn Bar.
Fotadation (1980); F.111ngton, A Study of Sanctions for Discovery Abuse, Department of Justice (1979), Rde 26(g) makes explicit the authority judge now have to impose appropriate sanctions and requires them to use it. This authority derives from Rule 37, 28 U.S.C. S 1917, and the court's inherent power. See Roadway v. Piper UJ.
100 S.Ct. 2455 (1980);
Martin v. Bell Helleopter Co., 85 F.R.D54, $N2 (D. col 1980); Note, Sanctions Impared by Courts on Attorneys Who Abuse the Judicial Process, i
'44 U. Chi.L.ReK 619 (1977). The new rule mandates that sanctions be o
imposed on atto.~.'eys who fau to meet the standards established in the first portion of Rule 26(g). The Feure of the sanction !s a matter of judicial discretion to be exercised in Ught of the particular circumstance.. The l
l court may take into account eny) failure by the party seaking sanctans to invoke protection under Rule 26(c at an early stage in the litigation, i
g l
The sanctioning process must comport with due process requirements.' The kind of notlee and hearing required wHl depend on the facts of the case and.the severity of the sanction being con idered. To prevent the proliferation of the sanction peccedure and to avoid multiple hearings, discovery in any sanction proceedng normally should be permitted only when it is clearly required by the interests of justice. In most cases the court will be aware of the circumstances and only a brief hearing should be necessary.
Rde 52. Findings by the Court 1
(a) EFFECT. In all actions tried upon the facts without a jury 2
or with an advisory jury, the court shall find the facts specially and 3
state separately,its conclusions of law thereon, and judgment shall 4
be entered pursuant to Rule 58; and in granting or refusing 5
interlocutory injtmetions the court shall similarly set forth the 6
findings of fact and conclusions of law which constitute the g ounds 7
of its action. Requests for findings are not necessary for purposes 8
of review. Findings of fact shall not be set aside unless clearly
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