ML20031F398
| ML20031F398 | |
| Person / Time | |
|---|---|
| Issue date: | 10/09/1981 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Cotter B Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20031F390 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8110190749 | |
| Download: ML20031F398 (7) | |
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UNITED STATES 8
i NUCLEAR REGULATORY COMMISSION g
j WASHINGTON, D. C,20555 e
g Q
f October 9, 1981 MEMORANDlN FOR:
B. Paul Cotter, Jr.
Chai rman Atmic Safety and Licensing Board Panel FR04:
Howard K. Shapar Executive Legal Director
SUBJECT:
PROPOSED CHANGES TO 10 CFR PART 2 - MANAGEMENT OF DISCOVERY Thank you for the opportunity to review your draft memorandum, dated October 7,1981, which discusses in some detail your discovery management proposal.
I have a number of cmments.
Regarding discovery generally, I would not object to a rule like this which may have the potential for being mildly beneficial.
I question, however, whether the proposal, if adopted and implemented, would prove particularly effective in curbing the discovery abuses which abound under the Cmmission's present discovery rules. Accordingly, even if the proposal is adopted, I would go furt. er (1) by imposing the fifty interrogatory limitation discussed h
in SECY-81-525 (September 3,1981) and, more importantly, (2) by adopting a pronibition coainst particular types of discovery which call for things such as analysis of a third party's data or perfomance of calculations not othersise considered necessary by the staf f.
Such a prohibition, structured along the lines of the proposa: set forth in Part II of my views in Appendix I of SECY-81-526 would deal directly with the serious resource problem attendant upon discove.f against the staff, a subject not discussed at all in your memorandum.
It should be recalled that this critical resource problem was the principal impetus for the current Cmmission consideration of alternative approaches to discovery management.
I believe a strong case can be made that our existing rules give Licensing Boards essentially as much authority to control discovery as the instant proposal,y which would make explicit what is already implicit, with no y
In fact, several licensing and appeal boards apparently assume that they have authority to act on their own initiative to limit discovery.
In a Septenber 9,1981 Memorandum and Order the Perry board imposed a requirement on the partie; to submit bimonthly discovery progress reports. The Board stated "... the Cmmission expects us te manage the discovery process in the interest of expedition."
In an earlier order the Boand limited the opportunity to make discovery requests to a specific " lead intervenor" on a particular contention.
Initial discovery limitations have also been imposed recently by board initiative in the Byron proceeding and in the Diablo Canyon appellate proceeding.
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. guarantee that such authority will be fimly exercised.
While I could support your idea of making the authority explicit, it should be noted that the broad powers of the presiding officer set forth in 10 CFR 2.718 "to conduct a fair and impartial hearing according to law [and] to take appropriate action to avoid delay.
" (emphasis added) is similar to the authority of federal courts "to secure the just, soeedy, and inexoensive determination of every action."
It was this authority, contained in Rule 1 of the Federal Rules of Civil Procedure (with the emphasis added by the Court), which led the Supreme Court to hold in Herbert v. Lardo, 441 U.S.
153, 179 (1979) that federal courts have the power to control discovery which the ASLBP would deny itself.
In this regard, however, you will recognize that a significant difference between the powers of courts and those of licensing boards operates to provide much greater incentive for praapt and full canpliance with judicial efforts to aggressively control discovery. That difference is.the suasive effect of the contempt powers of the federal courts which our boards lack.
The very limited power of an ASLB to impose sanctions makes the task of controlling discovery all the more difficult.y It is for these reasons that I fimly believe that stronger measures -- as proposed in the second paragraph of this memorandum -- are necessary.
Shanly defined limitations upon discovery can minimize the problem of abuse of the process to a much greater degree than a generalized exhortation to presiding officers to get themselves inv olved.
As indicated above, it is possible for the Commission to adopt both your proposal and the measures which I advocate.
Such-an approach would require modifications 'to the proposed section 2.740b(c) to more clearly delineate the limitation upon " opinion" discovery along the lines I have mentioned.y Without such modification the new proposal will certainly not reduce the l
burden imposed upon the staff to answer interrogatories pemitted by the l
boards and may actually increase it.
Finally, if the Commission believes that it would be desirable to adopt a i
" pilot" or " interim" program to detemine whether modified discovery rules i
y Your proposed rule would specifically provide for imposition of "an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses occasioned thereby, including a reasonable attorney's fee." Whether the Commission has authority to impose such sanctions is far from clear; further legal research on this issue is necessary before any decision is made to l
proceed with this aspect of the proposal.
l y Beyond this, I have a few other suggestions with regard to. the language i
to be used in your proposed rule. They are contained in Appendix "A" to this memorandum in the fom of a comparative text.
l
3-should be further amended or made permanent, I would have no objection.
I do believe, however, that an interim rule should be applied across-the-board to all Canmission licensing adjudications.
Howard K. Shapar Executive Legal Director
Enclosure:
l As stated l
4 cc:
W. J. Dircks A. S. Rosenthal L. Bickwit 4
1 e
i 4
l
Appendix A OELD COMPARATIVE TEXT:
(Additions double underscored; OELD deletions bracketed)
+
2.720(h)(2)
(iv) The provisions of 62.740(b)(2), (c) and (e),[and 42.740(b)(c)]shall acoly to interroaatories served pursuant to his paracraph.
s2.740 General provisions governing discovery.
(b)
Scope of discovery.
(2)
Supervisior, of discovery. The frecuency or extent of use of the discovery methods set forth in'[ subdivision] paragraoh (a) may be limited by the presiding officer if it determines that:
(i) the discovery soucht is unreasonably cumulative or duolicative, or obtainable from some other source that is either more convenient, less burdensome, or less exoensive; (ii) the party seeking discovery has had ample opportunity by discovery in the oroceedine or from any other source which is reasonably obtainable to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, given the needs of the case, the issues in controversy,
. the carties' available resources, and the values at_ stake in the proceeding. The presiding officer may act uoon'its own initiative
. or pursuant to a motion under [ subdivision] paragraph (c) [and after the issuance of the last Safety Evaluation Report supplement related to the hearing, may on its own initiative,3 to soecifically limit the senpe of discovery, for example the number of interrogatories any party may serve.
(3)
Trial preparation materials.
(f)
Potion to compel discovery.
(3) This section coes not preclude an independent request for issuance of a subpoena directed to a person not a party for production of documents and things. This section does not apply to requests for tne testimony or interrogatories of the regulatory staff pursuant to %2.720(h)(2) or production of NRC documents pursuant to 2.744 or 52.790, except for paragraohs (b)(2),(c), (e) and (g) of this section.
(g)
QningofDiscoveryRequests, Responses,and Objections.
Every reauest 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 ndividual name, whose address shall be stated. A party who is not represented by l
an attorney shall sign the request, response, or objection and gate his address.
The signature of the attorney or party constitutes a certification that he has read the reauest, l
i l
i
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3-response,.or objection, and that it is (1) to the best of his knowledoe, information, and belief formed after a reasonable inquiry consistent with these rules and warranted by axisting law or a good f aith argument for the extension, modification, or reversal of existing law; (2) interposed in good f aith and not primarily to cause delay or for any other improper purpose; and (3) not unreasonable or unduly burdensome or expensive, given the nature and comolexity of the case, the discovery r.lready had in the case, the amount in controve sy, and other values at ' stake in the proceedino.
If a reouest, response, or objection is not sioned, it shall be deemed ineffective.
If a certification is made in violation of the rule, the oresidino officer upon motion or upon its own initiative, shall ircose upon the person who made the certification, the carty on whosebehalfthereouest,resoonse,orobjectionismade,orboth, an appropriate sanction. [which may include an order to pay to the other party or parties the amount of the reasonable expenses occasioned thereby, including a reasonible attorney's fee.]
[s2.740b Interrogatories to parties. (Note:
Delete proposed change in its entirety.)
(b)
Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless it is objected to, 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 atterney making them. The
4-party upon whom'the interrogatories were served shall serve a copy of the arawers and objections upon all parties to the proceeding within 14 days after service of the interrogatories, or within such shorter or longer period as the presiding officer may allow.
Interrooatories may relate to any matters which can be inquired into under 42.740(b), and the answers may be used in the samb manner as depositions (see 42.740(a)(h)).
(c)
An interrogatory otherwise proper is not necessarily objectionablemerelybecauseananswertotheinterrogatory involves an opinion or contention that relates to f act or the acclication of law to f act, but the presidino officer may order, pursuant to its powers to supervise discovery under 52.740(b)(2),
t_ hat such an interrocatory need not be answered until af ter desiccated discovery has been completed, until after a orehearing conference held oursuant' to 42.752, or until such time or uoan such conditions as the presiding officer deems necessary in its discretion, to secure the just, soeedy, and inexcensive determination of a proceeding.]
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