ML20031F396
| ML20031F396 | |
| Person / Time | |
|---|---|
| Issue date: | 10/09/1981 |
| From: | Cotter B Atomic Safety and Licensing Board Panel |
| To: | Bradford P, Gilinsky V, Palladino N NRC COMMISSION (OCM) |
| Shared Package | |
| ML20031F390 | List: |
| References | |
| REF-10CFR9.7, RULE-PR-2 NUDOCS 8110190743 | |
| Download: ML20031F396 (22) | |
Text
- -__ - - ____
[4 Jbi UNITED STATES YB NUCLEAR REGULATORY COMMISSION 3
ATOMIC SAFETY AND LICENSING B ARD PANEL
/
W ASHIN GTON. D.C. 20555 October 9, 1981 6
MEMORANDUM FOR:
Chairman Pall adino Commissioner Gilinsky Commissioner Bradford Commissioner Ahearne Commissioner Roberts 0 f/
FROM:
B. P aul Cotter, Jr.
t Chief Administrativ Judge Atomic Safety and Licensing Board Panel
SUBJECT:
PROPOSED CHANGES TO 10 C.F.R. PART 2:
MANAGEMENT OF DISCOVERY I.
INTRODUCTIOT On June 8, 1981, the Commission published a Notice of Proposed Rulemaking in the Federal Register soliciting public comments on four proposed changes to the Commission's Rules of Practice, 10 C.F.R. Part 2.
The proposals included one to preclude a party from serving more than 50 interrogatories on
. another party to one proceeding, unless consent to file additional interrogatories were first ob t ai n e ti from the Licensing Board.
3110190743 811013 PDR 10CFR PDR sPT9.7
T Commission 10/9/81 On October 1, 1981, the Commission discussed this proposal as well as a broader discovery management pro 30 sal by the Licensing Panel.
See SECY-81-526, pp. 1-2 and 22-30 (Sept. 3, 1981) for the background of these proposals, including notice of proposed rulemaking and analysis of comments received.
At the conclusion of the discussion, the Chairman directed preparation of material spelling out in greater detail the Licensing Panel's proposal.
The Commission asked two questions rel ative' to the proposal:
(1) what qualitative criteria would be applicable to Board responsibility for managing discovery; and (2) is a pilot program feasibl e?
The first question is discussed under specific rule changes proposed, including discovery of mental processes by interrogatory, and.the pilot program is discussed separately.
This paper reflects the comments of OGC, ASLAP and OELD who were consulted in its preparation.
OELD has also stated separate views set for.th in Attachment A.
Commission 10/9/81 II.
BACKGROUND The purpose of discovery is to make all rel ev an t information known to the parties tc eliminate surprise, to reduce the number of issues among them, to better focus those issues that go to trial, and to reduce the time needed f or the trial by eliminating peripheral matters.
However, in today's litigious world, discovery tools have become, in some i
instances, tactical devices to evade or defend.
Normally, the parties are responsible for conducting discovery and judicial officers only become involved when a discovery dispute arises.
This is the practice at NRC.
A 1
l party to an NRC proceeding may file an unlimited number of 1
l interrogatories.on another party.
If a party is overwhelmed with interrogatories, it can seek a protective order from the board on the grounds that the interrogatories are annoying, oppressive, or impose an undue burden or expense.
If the order is granted, the party does not have to answer the questions objected to.
Commission-10/9/81 i
Under Part 2 rules, Licensing Boards do not have explicitly stated authority to act on their own initiative to limit interrogatories.
Part 2 rules contemplate that licensing i
boards will act to control discovery abuses in response to a motion by a party' as described above.
OELD feels that the general delegation of power to the presiding officer in 2.718 and the language in 2.740(b) give such affirmative power to the Boards.
The ASLBP, ASLAP and OGC disagree, and there is no NRC case law on the subject.
III.
THE PROPOSAL The approach within ad apts f or. P art 2 a June 1981 proposal by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States to eliminate comparable delay and abuse in the discovery process found in i'
' Federal civil litigation.
[
The Judicial Conference proposal would make clear the l
power of a Federal judge to prevent redundant or dispropor-tionate discovery by explicitly giving tha court authority 2
i l
Commission 10/9/81 to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry.
While present Federal case law acknowledges the existence of this judicial power [e.g., Herbert v, Lando, 441 U.S. 153, 177 (1979)], the drafters of proposed Federal Rule 26(b)(1) state that the amendment "is intended to encourage judges to be mor-e aggressive in identifying and discouraging discovery overuse "The rule contemplates greater judicia! involvement in the discovery process, and thus acknowledges the reality that it cannot always operate on a s e l f - r e g u l a t-o r.y b a s.i s. "
Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, reprinted in U.S. Code Cong. & Ad. News, G1, G35-G36 (No. 5, July 1981) l
(" Preliminary Draft").
l A.
Section by Section Analysis 1.
Section 2.740(b)(2).
Discovery Limitations.
First and foremost, proposed 2.740(b)(2) explicitly authorizes l
j the presiding officer to limit discovery upon his own motion, l
I 1
Commission '
10/9/81 as well as pursuant to a motion for a protective order.
Under proposed 2.740(b)(2), a Licensing Board may limit any or all forms of discovery allowed pursuant to $2.740(a) upon a finding that:
(1) such discovery'is unreasonably cumuletive or duplicative, or available f rom some other source or method that is either more convenient, less burdensome, or less expensive; (2) the party seeking discovery has already had ample opportunity to obtain the information sought through discovery; or (3) the discovery is unduly burdensome or expensive given the needs of the case, the nature, number, and complexity of the issues in controversy, the parties' available resources, and the values at stake in the proceeding.
These grounds are virtually identical to those set forth in the Judicial Conference proposal which is draf ted to state current practice in many courts in' issuing protective orders under present Federal Rule 26(c).
Preliminary Draft at G35-G36.
Commission 10/9/81 The term "or method" was added to (1) above at the suggestien of OGC to establish a Board's authority to require the parties to use alternate discovery methods, f or example, to conduct informal document exchanges and colloquies pricr to using interrogatories.
The ASLBP believes the concept is already authorized by the rules and the Commission's May 20, 1981 " Statement of Policy on the Conduct of Licensing Proceedings" and has already employed the practice in some proceedings.
We have some reservation about procedural arguments over other " methods" but on bal ance think the addition' meritorious.
2.
Section 2.740(g).
Certification and Sanctions.
Proposed 2.740(g) obligates the parties to certify the propriety of. discovery actions and explicitly authorizes sanctions for abuse of discovery.
Thus, every party's attorney, or, if unrepresented, the party himself must certify th at every discovery request, response or objection:
(1) is based upon a theory reasonable
i Commission 10/9/81 and warranted by existing law or a good faith belief as to what the law should be;-(2) is interposed in good faith and not primarily for delay or any other improper purpose; and (3) is reasonable and not unduly burdensome or expensive under the circumstances of the particular case.
The f ailure to make such a certification has several consequences.
Firstly, any such discovery request, response or objection is ineffective and may be ignored by the recipient and the Board.
Secondly, it may be treated as non-compliance with a discovery request and can lead to the imposition of sanctions against the attorney, the party, or both.
Proposed 2.740(g) is derived from the Judicial Conference proposal and is " designed to curb discovery abuse by explicitly encouraging the imposition of sanctions."
Prelimin ary Draf t, suora, at G36.
Although Federal Courts have express authority under Rule 37(d) to impose sanctions such as those which would be authorized under 2.740(g), the proposal is designed to overcome the reluctance of Federal judges to impose such sanctions on attorneys who abuse the discovery rules by both "mak[ing] explicit the authority judges now have to impose
a Commission 10/9/81 appropriate sanctions and requir[ing] them to use it."
Id. at G38.
The only sanctions permitted under current NRC practice a're the reprimand, censure, or suspension from a particul ar proceeding of parties or their representatives who are found guilty _of disorderly, disruptive or contemptuous conduct.
There is no explicit provision for sanctions for abuse of discover:: at present.
The nature of the sanction to be imposed pursuant to this section is to be a matter determined at the discretion of the presiding officer, depending upon the particular circumstances.
3.
Section 2.740b(c).
Opinions. -
Proposed 2.740b(c) is designed to further expedite discovery by making it clear that an interrogatory is not objectionable
. merely oecause it calls for an opinion or contention th at rel ates t'
fact or the application of law to fact.
The l
substance of this proposed section is drawn from Rule 33(b) of the Federal 0"les of Civil Procedure, which was adopted in 1970.
r l
Commission 10/9/81 While the opinions and contentions spoken of by this section are not intended to reach the privileged mental impressions of an attorney's work produc t, they are intended to encompass mixed questions of law and f act which would aid in narrowing the issues in a proceeding.
S,ee Union Carbide Corp.
J
- v. T: avelers Indemnity Co., 61 F.R.D. 411, 414 (W.D. P a.
1973).
The rationale is stated in the Advisory Committee notes to the 1970 Amendments to the Federal Rules of Civil Procedure, reprinte'd in 48 F.R.D. 487, at 524:
4 Ef f orts to draw sharp lines between f acts and opinions have invariably been unsuccessful, and the clear trend of the cases is to permit " factual" opinions.
As to requests for opinions or contentions that call for the application of law to fact, they can be most useful in narrowing and sharpening the issues, which is a major purpose of discovery.
On the other hand, under the new language interrogatories may not extend to issues of " pure law,"
i.e.,
legal issues unrelated to the f acts of the case.
(Citations omitted.)
As interpreted judicially, however, the true test as to whether material is discoverable is not
Commission 10/9/81 left to fine-spun distinctions between
..." knowledge" and belief based upon inf or. nation f rom other sources.
Rather, it is the practical test which has been well stated by Professor Moore when he poses the question "would an answer serve any substantial purpose."
Taylor v.
Sound Steamshio Lines, 100 F.Supp. 388, 389 (0, Conn. 1951.)
,See also Scovill Manufacturino Co. v.
Sunbeam Corporation, 357 F.Supp. 943, 9a8 (D. Del. 197.,); Hockley v.
- Zent, Incorporated, 61 F. R. D. 26, 31 ( M. D. P a. 1980); 4A J. Moore Federal Practice, 133.17 (1981).
Giving the Licersing Board the authority to determine whether such discovery would "s erv e any-sub st ant i al purpose" is in accord with the discretion which would be given to the Licensing Board pursuant to proposed %2.740(b)(2) to supervise and limit' discovery.
OELO has cited the scecific example of an interrogatory asking if a staff member read a certain document in reaching
e 4
Commission 10/9/81 I
l his conclusions and, if he has not, requesting him to read it and state whether and how it might change his conclusions.
On first blush, this would appear clearly burdensome, and a showing could be made to the licensing boards that the interrogatory would not " serve any substantial purpose."
Furthermore, proposed 2.740b(c) specifically gives the i
presiding officer the discretion to delay the time at which~
such an interrogatory must be answered until af ter the i
completion of designated discovery or after a prehearing conferen'ce held pursuant to 2.752, thereby allowing a party the opportunity to fully develop the f acts upon which an opinion is to be based.
The foregoing discussion outlines the major difficulties
(
in dealing with discovery of " mental processes."
The first is i
- he distinction between " questions of law and f ac t",
a question I
which perennially troubles l aw students, l awyers, and judges.
The second is the formulation of principles to deal with the interrogatory example cited by OELD.
Clearly, if somehow an l
'important writing had been ove-looked in reviewing a license I
L.
Commission 13-10/9/81 application, it would be mos' benef.icial to have it incorporated in the proceeding prior to hearing.
If the item came up for the first time at hearing, it would delay matters while lawyers cl aimed surprise and sought a recess or continuance to review the material and assemble witnesses to prepare testimony to address it.
Equally clearly much is written that has at most peripheral relevance and would not a
" serve any substantial purpose" to consider.
Accordingly, OELD and ASLBP have agreed to assign represen'tativet to address these questions and work out principles to resolve them.
4.
Section 2.720(h)(2).
Conforming Amendment.
The proposed amendment of 2.720(h)(2) makes the staff subject to the provisions of 2.740(b)(2) and 2.740b(c).
It is intended merely to clarify the authority of licensing boards to supervise all discovery.
This change would not alter the requirement that " exceptional circumstantes" must be demonstrated before discovery may be had against the staff.
-ew-w e-,---
--n s
m--
~-w-
,--v.
e-s-~m c, - -,, - - -
u m
Commission 10/6/81 Instead, the intent
- is amendment is to specify that once the threshold of "exw onal circumstances" has been raached, the presiding officer has the power to order whatever discovery it deems necessary to expedite the proceeding.
IV.
PILOT PROGRAM Their appears to be little or no advantage to be gained by designating proposed changes to the Commission's regulations concerning the management of discovery as "a pilot program".
The Comm'ission has discretion to change its rules regarding discovery at any time it wishes.
A pilot program for a fixed period of time, while f easible, may not be desirable for the following reasons.
Aps'ication of a pilot prgram to less than all types of NRC proceedings would be subject to objections of unequal treatment by some parties to licensing proceedings.
If it were to be applied, for ex ample, to operating license proceedings but not license amendments on applications to enlarge spent fuel pool capacity, some Licensing Boards would be granting
~
Commission 10/9/81 broader discovery in some proceedin,gs than in others.
Parties would charge a violation of the principle of fundamental fairness that underlies the administrative process.
Motions and arguments would inject an element of uncertainty into some proccauings, as well as delay.
Selection of a suitable period of tinic for trying out a pilot program raises different problems.
Whether the program is implemented on a 6 month, 12 month or other basis, it is almost certain to inject a disruptive element into individual proceedings because of the uncertainties involved in the projected cut-off date of the new progrem.
Parties seeking broader latitude might delay some portion of their discovery until after the program expired.
i A short pilot program, e.g.,
six months, is unlikely to develop sufficient data to measure the success of the program.
Results would be difficult to quantify unless the proposed changes are in place for a longer period of time and even then it is not clear how such results could be measured.
Because. of the 4
L
Commission 10/9/81 variance in discovery from case to case, the development of criteria to measure the time needed or saved for v ar i o us discovery components, value to the proceeding, and man power required would in itself be extremely time consuming and subject to dispute.
The following proposed amendments to Part 2 would implement the conclusions reached in the foregoing discussion.
new m ateri al is underscored.
2.720(h)(2)
(iv)
The provisions of 52.740(b)(2), (c) and (e), and
?Z.740(b)(c) shall apoly to interrogatories served pursuant to this paragraoh.
2.740 General provisions governing discovery.
(b)
Scope of discovery.
(2)
Supervision of discovery.
Discovery is allowabic to,
the extent that an answer would serve any useful ouroose.
Commission 10/9/81 However, the frequency or extent of use of the discovery methods set forth in subdivision (a) may be limited by the presiding officer if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or obtainable from some other source or method that is either more convenient, less burdensome, or less exngnsive; (ii) the party seeking discovery has had ample opportunity by discovery in the proceeding to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, given the needs of the case, number and i
complexity of the issues in controversy, the parties' available resource', and the values at stake in the oroceeding.
The presidino officer may act upon its own initiative or pursuant to a motion under subdivision (c) to specifically limit the use of discovery, for example the number of interrocatories any party may serve.
l (3)
Trial preparation materials.
(
l (f)
Motion to compel discovery.
l (3)
This section does not preclude an independent request for issuance of a subpoena directed to a person not a l
party for oroduction of documents and things.
This section does not apply to requests for the testimony or interrogatories of
Commission 10/9/81 the regulatory staff pursuant to 2.720(h)(2) or production of NRC documents pursuant to 2.744 or 2.790, except for paragraphs (b)(2),(c), (e) and (g) of this section.
(g) Signing of r,iscovery Recuests, Responses, and Objections.
Every request for discovery, or response or objection thereto, made by a party represented by an attorney shall be signed by at least one attorney of record In his individual name, whose address shall be stated.
A party who is not represented by an attorney shall sign the reouest, response, or objection and state his address.
The signature of the attorney 'or party constitutes a certification that he has read the request, response, or objection, and that it is (1) to'the best of his knowledge, information, and belief formed after a reasonable inauiry consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) interoosed in good faith and not primarily to cause delay or for any otter l
improper ourpose; and (3) not unreasonable or unduly burdensome or. expensive, given the nature.and complexity of the case, the i
discovery already had in the case, the amount in controversy, I
and other values at stake in the proceeding.
If a reouest, t
l response, or objection is not signed, it shall be deemed ineffective.
t l
Commission 10/9/81 s
If a certification is made in violation of the rule, the presiding officer upon motion or upon its own in i ti at i ve, shall impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction.
2.740b Interrogatories to parties.
(b)
Each interrogatory shall be answered separately.,and fully in writing under oatt or affirmation, unless it is cbj ec ted 't o, in which event the reasons for objection shall be stated in lieu of an answer.
The answers shall be signed by the person making them, and the objections by the attorney making them.
The party upon whom the interrogatories were served shall serve a copy of the answers and objections upon all parties to the proceeding within 14 days after service of the j
interrogatories, or within such shorter or longer period as the l
presiding officer may allow.
l Interrogatories may relate to any matters which can be l
inouired into under 62.740(b), and the answers may be used in l
l the same manner as depositions [see 2.7404(g)].
l l
(c)
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory
Commission 10/9/81 f
involves an opinion or contention that relates to f act or the apolication of law to f act, but the presiding officer may order, pursuant to its powers to supervise discovery under 42.740(b)(2), that such an inte' ogatory need not be answered until af ter designated discovery has been completed, until after a prehearing conference held pursuant to 2.752, or until such 4
time or upon such conditions as the presidin'g officer deems necessary in its discretion, to secure the just, speedy, and inexpensive determination of a proceeding.
V.
RECOMMENDATION i
OGC supports the general outline of the proposal.
0GC l
recommends that the Commission in the Statement of Consideration encourage licensing boards to experiment with limi, ting the f
number of interrogatories to fifty or another appropriate number that one party may file in a given proceeding against another party without receiving the consent of the Board to file additional interrogatories.
Because the ASLBP proposal if l
implemented aggressively by-the Boards, would substantially modify existing practice, OGC recommends that - the Commission i
adopt the rule on a nondiscriminatory pilot basis and commit l
itself to reexamining the rule within six months to a year after it is adopted.
Commission 10/9/81 The Chairman of the ASLAP has no objection to the proposed changes but states that whether they are adopted or not, he adheres to the belief that (1) a numerical limitation on interrogatories should be imposed on a six-month trial basis; and (2) the staff should not be required to respond to interrogatories which seek to probe the staff's thought processes rather than to obtain f actual inf ormation with regard to the bases of staff conclusions.
The Chal man of the ASLBP recommends that the Commission adopt the'!.icensing Panel proposal.
A " pilot program" period is not recommended.
Distribution:
Commissioners Commission Staff Offices Executive Director for Operations i
Executive Legal Director ASLAP I
OGC Secretariat
6 4
ATTACHMENT A Yv V-m v
m e-v-m-s+vm-----r
-r y7W
--v-sv -
y-T--
t v
-e-
--m