ML20032E250
| ML20032E250 | |
| Person / Time | |
|---|---|
| Issue date: | 11/05/1981 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML20032E251 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8111200094 | |
| Download: ML20032E250 (70) | |
Text
r NUCLZAR RILWTORY CCMMISSICN COMMISSION MEETING In the Mat =ar cf:
DISCUSSION AND POSSIBLE VOTE ON REVISED LICENSING PROCEDURES, PROPOSED RULE CHANGE TO PART,2
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g November 5, 1981 paggg 1 - 68 g.
Washington, D. C.
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UNITED STATES OF AltERICA 2
NUCLEAR REGULATORY COMMISSION 3
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DISCUSSION AND POSSIBLE VOTE ON REVISED LICENSING PROCEDURES, PROPOSED RULE CHANGE TO PART 2 a
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10 Room 1130, 1717 H Street Northwest, j
11 Washington, D.C.
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12 Thursday, November 5, 1981 5
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The Commission met at 10:00 a.m., pursuant to l
14 notice.
2 15 U
BEFORE:
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NUNZIO PALLADINO, Chairman of the commisr-lon.
6 17 JOHN AHEARNE, Commissioner.
d VICTOR GILINSKY, Commissioner.
E 18 PETER BRADFORD, Commissioner.
g THOMAS ROBERTS, Commissioner.
19 20 PRESENT FOR THE NRC STAFF:
21 Alan Rosenthal Howard Shapar 22 Tony Cotter Forrest Remick 23 l, Guy Cunningham William Parler 24 25l 1
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Present for the Office of General Counsel:
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EEEEEEDEEEE 2
CHAIRMAN PALLADINO:
The meeting will please come to 3
order.
4-The subject of this morning's meeting is discussion I
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and possible vote on revised licensing procedures, proposed l
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rule change to Part 2, and we have had proposed papers from 7
the respective authors, and Mr. Cotter, I believe, is going to X
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walk us through the documents.
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MR. COTTER:
Thank you, Mr. Chairman.
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10 This proposal relates to amendments governing the zj 11 discovery practice at the Commission, and those amendments may 3
d 12 be generally divided into two subject matters; one dealing with z
- l 13 the authority of the presiding officer at hearings to control 14 and otherwise manage discovery in the interest of expediting 2
15 the proceeding.
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16 The second generci portion relates specifically to e
g 17 the discovery practice in the use of interrogatories.
k 18 With respect to the amendments as a whole, as you i:"
19 know, and as this papar out. lines, there have been two prcposed R
20 rulemakings published; one in March of 1981 and one in June of 21 1981, which address the general subject of discovery, and there 22,
have been extensive comments in responsa to those proposed 1
23 !
rulemakings, and I won't go through and repeat all the summary 24 of the comment response.
I 25 With respect to that portion of these discovery rule I
ALDERSON REPORTING COMPANY.1NC.
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amendments pertaining to the authority of the presiding officers 2
to manage discovery affirmatively, the proposal has two elements:
3 One is to make it explicit in the regulations that 4
the presiding officers do have affirmative authority to manage vi 5
discovery in the interest of expediting the proceeding.
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And the second is an affirmative statement of the R
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presiding officer's authority to impose sanctions in the event M]
8 that the discovery rules are not complied with, or are otherwise d
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violated by the parties to the proceeding.
10 COMMISSIONER AHEARNE:
Do you have in mind'what 5
5 11 sanctions those might be?
g 12 MR. COTTER:
There are two or three typical kinds.
3g 13 One would be that in the event of a violation of discovery or u
l 14 refusal to comply with the discovery order, the designated facts 2
15 may be taken as established by the party which is seeking the f
16 sanction, and against the party which has committed the violation.
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17 A second one typically used would be to bar a party 5
Bi 18 from opposing sone element that is in dispute in the proceeding, 5"
19 or from introducing designated evidence that might controvert g
en 20 the element that --
21 COMMISSIONER AHEARNE:
And you would see those as 22 sanctions the Board would take if the interrogatory was not 23 certified?
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i 24 MR. COTTER:
No, I wouldn't, off the top of crf head, 25 ;
expect that in the case an interrogatory was not certified, but I
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i ALDERSON REPORTING COivtPANY, INC.
5 it is certainly an available possibility.
2 COMMISSIONER AHEARNE:
Yes, I understand.
I was speak-3 ing specifically to the issue of certification where, as I l~ ~
4 _' understand, in this rule change that's what sanction is brought
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MR. COTTER:
Certification is only one aren in R
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which sanctions could be imposed for refusal to comply with'the K
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discovery rules of the Commission.
d COMMISSIONER AHEARUE:
Yes, I understand that.
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talkinig about specifically in your proposed rule change, at z
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y 12 certification, as far as asking what sanctions did you have in 5
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Those sanctions, two which I just 2
15 mentioned, and a third, which would be either barring a party U
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17 sanctions for failing to comply with the certification require-E hi 18 ment.
But I would not expect ihem to be applied except in F~
19 situations where following a failure to certify a discovery R
20 request, the party had been directed to do so, and had refused.
21 COMMISSIONER AHEARNE:
So what would you see as the 22 sanction for failure to certify?
1 23l MR. COTTER:
Well, there's an affirmative sanction 24 and a negative sanction.
The negative sanction is that the l
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failure to certify the discovery request means that it can be Io ALDERSON REPORTING COMPANY, INC.
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1-simply ignored, and so it's of no effect.
I would categorize 2
that as a negative sanction, and I would expect that that would be l
3 perhaps the most frequent that you would run into.
4 COMMISSIONER AHEARNE:
But don't you already say g
5 that if it's not certified, it doesn't have to be followed?
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MR.. COTTER:
Yes.
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7 COMMISSIONER AHEARNE:
So that's not part of the sancti on Ml 8
MR. COTTER:
You're talking about an affirmative d
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sanction imposed by a presiding officer.
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10 COMMISSIONER AHEARNE:
The sanction you have put 3l 11 in says if a discovery action is not certified, or if a t
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12 certification is made in violation of this subsection, the 5
13 presiding officer -- and then, where appropriate shall impose u
l 14 upon the person an appropriate sanction.
2 15 I was trying to understand what that sanction would g
16 be.
So far I don't find any.
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17 MR. BGCKNI?: In the typical situation where he
- Gi 18 fails _to certify, you would tell him to certify and warn him E"
19 and reprimand him for not having certified.
Then put that R
20 together with other violations to compose a more frfreeful sanction 21 in the future.
22 COMMISSIONER AHEARNE:
By that reprimand, you mean 23 he s been a bad guy or a bad woman, et cetera?
t 24 MR. BICKTTIT:
That's right.
25{
COMMISSIONER GILIUSKY:
Bad woman.. I like that.
i ALDERSON REPORTING COMPANY, INC.
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(Laughter.)
2 COMMISSIONER AHEARNE:
But that's the statement?
3 MR. BICKWIT:
I think that would be the typical 4
sanction for failure to certify in the first instance.
If he a
5 fails to certify the second tice, you'd say, "Look, that's too 3
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COMMISSIONER AHEARNE:
I gather by the way la.wyers
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normally common, but that' kind of chastisement would not i
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5 11 MR. BICKWIT:
It's not just a lawyer writing to a d
12 lawyer. It's a judge saying, "This is a sancv. ion."
3 13 MR. SHAPAR:
Of course, one has to remembar that S
E 14 the one asking for discovery wants something, and if he doesn't a
2 15 certify, he doesn't get it.
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16 COMMISSIONER AHEARNE: Yeah, I know, but it already says cd g
17 if?
it's not certified, it doesn't have to be answered.
I'm Ci 18 trying to figure out what the sanction is.
ch 19 MR. SEAPAR:
Reprimand censure.
20 MR. BICKUIT:
I think the first time he fails to 21 certify, you wouldn't want to go beyond that as a sanction.
22 The second time he fails, you might want to'.
23 COMMISSIONER AHEARNE:
My understanding is, at least 24 in the federal court system, one of the things that happens 25 when you don't do what you're supposed to do, is they make the ALDERSON REPORTING COMPANY, INC.
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1 lawyer pay for.it.
2 MR. COTTER:
That's correct.
And as originally 3
proposed, I did put that in there and was caught up.
We do not 4
have the authority, which has to be contained by statute.
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COMMISSIONER AHEARNE:
I see.
0 6-MR. SHAPAR:
Would you lika us to relegislate?
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(Laughter. )
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COMMISSIONER AHEARNE:
No, I think you're busy enough.
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MR. COTTER:
The ultimate answer to your question is 2f h
10 that failure to certify, if not ::orrected, and if the failure i5 l '11 continues after they have been directed to certify, can then D
y 12 result, if appropriate -- and the operative words are "if s
13 appropriate" -- in the sanctions that I started to describe 3
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14 earlier.
2 15 COMMISSIONER BRADFORD:
Maybe I missed something, but j
16 is there the slightest likelihood of this?
Why wouldn't'the as d
17 parties certify?
Ni 18 MR. COTTER:
I think the likelihood is very slim.
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19 COMMISSIONER BRADFORD:
The more serious question is g
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-what happens if they certify falsely.
But I should think 21 failure to certify would at most be an oversight and would be 22 corrected.
23 COMMISSIONER AHEARNE:
I would think so.
i 24 MR. SHAPAR:
In most cases; not necessarily in all.
25!
MR. BICKWIT:
But even in those cases where there i
1 AL.DERSON REPORTING COMPANY. INC.
9 1
was some sinister intent at work, I suppose they would still 2
certify on demand or else they wouldn't have an effective 3
interrogatory.
Are you thinking they might withdraw it at that
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point?
5 MR. SHAPAR:
I'm thinking they might test the rule.
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6 They might just be particularly obdurate.
We've had examples R
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of this in the past.
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8 COMMISSIONER GILINSKY:
I wonder if we could back d
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out of this rabbit hole.
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10 (Laughter.)
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11 MR. SHAPAR:
Full bore.
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12 COMMISSIONER AHEARNE:
We've already gone down a 5j 13 couple of sweeping changes we made earlier this year.
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14 CHAIRMAN PALLADINO:
Tony, there is a fair question:
2 15 What do you see as the benefit of this proposal, this j
16 particular feature of the proposal?
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17.
MR. COTTER:
The ability of the presiding officer 18 to impose a sanction for failure to certify.
5 19 CHAIRMAN PALLADINO:
Why do you view H
20 certification as the important feature of this?
21 MR. COTTER:
It's the certification requirement.
22 CHAIRMAN PALLADINO:
The certification itself.
23 MR. COTTER:
It imposes an affirmative obligation i
24 on the parties to the proceeding at the outset not to abuse 25l the discovery process.
ALDERSON REPORTING COMPANY, INC.
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MR. SHAPAR:
The more gullible 'and naive lawyer will l
2 think it means something.
3 (Laughter.)
4 CHAIRMAN PALLADINO:
It's the other lawyers that e
5 I'm worr,ied about.
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6 COMMISSIONER BRADFORD:
It's the gullible and naive Kg 7
Commissioners that concern me.
3 l-8 CHAIRMAN PALLADINO:
I would be very careful on what d
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I certified, but then I'ni not a lawyer.
But lawy.ers would be
$g 10 equally careful.
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11 COMMISSIONER BRADFORD:
Actually, then, there is a D
g 12 point hidden in that one, which is the business of certifying 3
13 that something is not unduly burdensome is tricky, because you 5u y
14 don't really know what the burden on the recipient is going to 2
15 be.
g 16 You can argue that the burden, whatever it is, isn't as y
17 undue because your question is so important, but the fact is --
18 MR. COTTER:
In that vein, it addresses the element E*
19 of where you have done something a number of times.
You have 8n 20 built up an expertise in it, and where you have conducted 21 discovery in these kinds of proceedings for a number of times, 22 you have a file probably about three or four inches thick of 23 standard questions that you can simply take out, Xerox, change 24 the heading and send it in, and this certification makes it a 25 lot more difficult to do that.
ALDERSON REPORTING COMPANY, INC.
11 1
MR. SHAPAR:
I might also add this doesn't come 2
full blown out of somebody's mind here at the NRC.
It represents 3
a proposal by the august body, the Committee of the Judicial 4
Conference of the United States, based on a wealth of experience 5
and a wide variety of proceedings.
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COMMISSIONER AHEARNE:
Yes, but were they speaking R
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to federal courts or our kinds of courts?
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8 MR. SHAPAR:
They were speaking to federal courts.
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COMMISSIONER AHEARNE:
Where they can put on the i
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g 11 MR. SHAPAR:
Sure.
But I don't think that's enough D
ri 12 of a distinction to illustrate a big chasm between the two Ea y
13 processes.
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14 COMMISSIONER AHEARNE:
I notice our -- I guess the 2
15 excitement of the hearing was too much for the television men.
j 16 (laugh.ter. )
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17 COMMISSIONER BRADFORD:
They made clear at the outset 5
18 that they were seeking file footage, and I think that's exactly k
19 what they got.
g es 20 (Laughter.1 21 CHAIRMAN PALLADINO:
They already took five minutes 22 worth of film, and they can't show more than about 30 seconds.
23 COMMISSIONER AHEARITE:
Particularly of this st6 ject.
24
(. Laughter. )
25 CHAIRMAN PALLADIMO:
Do you have more questions on this, i
ALDERSON REPORTING COMPANY, INC.
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or do you want to g,o.on?
2 All right, why don't we go on.
3 MR. COTTER:
The first category I just discussed was 4
the affirmative authority placed explicitly on the presiding a
5 officer to manage discovery in the particular case.
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The second general category is more narrow, and R
7 that is the amendment of the rules addressing the use of M
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interrogatories, and that essentially -- this proposal has two d
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elements to it:
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10 The first is to establish in the rules the general al 11 principal relating to the use of interrogatories where they it y
12 address mixed questions of fact and law, and the purpose of 5
13 putting that in here, in my mind, is twofold:
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l 14 One, to make clear what in fact has been the practice 2
15 of the Commission, which is to follow the practice in the federal f
16 courts, as stated in the Federal Rules of Civil Procedure, and as 6
17 then tested through a variety of cases under those rules.
!ii 18 That establishes the context for the second portion
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19 of the proposed amendment respecting interrogatories,41ich is 20 to limit the use of interrogatories against the Staff to make 21 it explicit that the Staff should not be reauired to perform 22 additional work in response to interrogatories.
23,
I should give credit where credit is due.
That 24 proposal and the introductory language to it were conceived and 25 crafted by the Office of the Executive Legal Director.
1 ALDERSON REPORTING COMPANY, INC.
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13 1
MR. SHAPAR:
As a fall-back position.
2 MR. COTTER:
I think that essentially is an outline 3
of the proposal.
4 CHAIRMAN PALLADINO:
We are only dealing on the one e
5 that you prepared and not the other one that came in?
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MR. COTTER:
No, both.
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COMMISSIONER AHEARNE:
What was the other one?
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CHAIRMAN PALLADINO:
On express mail.
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MR. BICKWIT:
We weren't intending you to deal with i
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g 11 CHAIR!1AN PALLADINO:
You weren't intending for us to D
y 12 deal with that today.
Okay.
5 13 Questions?
John?
E 14 CO!!MISSIONER AHEARNE:
First, Tony, I gather that in s
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15 looking through here, the sections you have underlined don't 5
g 16 necessarily indicate all the changes, as
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17 MR. COTTER:
The section in the back showing the new
!ii 18 language is supposed to show all the changes.
19 COMMISSIONER AHEARNE:
It may just be minor other 8n 20 changes, but when I checked with the current version of the 21 book that I have, at least, I only found in'just doing a sample 22 check on page 22 at the top where you are making the -- talking 23 about the changes in 2.740 (b), you have added the phrase the 24 third line down "other member or officer. "
25 so I wasn't sure how many other places there were.
l ALDERSON REPORTING COMPANY, INC.
14 1
MR. COTTER:
That's the only one I know of, and I 2
think I was doing that in the course of conforming it to the 3
language at present.
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4 COMMISSIONER AHEARNE:
My first question is how many
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5 other changes might there be.
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6 MR. COTTER:
None that I know of.
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7 COMMISSIONER AHEARNE:
Well, then I find on page 18 Xl 8
in Section (.iv) -- at least my book doesn't have any.740 (b) (c).
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MR. BICKUIT:
I think that's an error.
It's a.740B i
h 10 without parentheses.
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j 11 MR. COTTER:
No, there is a new section (c), isn't D-g 12 there?
c 13 MR. BICKNIT:
Yes, but I think what's meant there is l
14
.740B without parentheses and then (c) in parentheses, and that 2
15 is the new section.
j 16 COMMISSIONER AHEARNE:
All I'm pointing out is there A
17 are a few places where it wasn't clear what was addressed.
b 18 So you're saying this is a -- 2.740, no paren B, section (c) ?
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19 MR. BICKWIT:
That's right, and that section is on n
20 page 21.
21 MR. COTTER:
That's my favorite section.740B (c).
22 MR. BICKRIT:
On 22.
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23 COMMISSIONER AHEARME:
How if you have if I could 24 address -- you say that at the top of page 4 in your introductory 25 section, "The rule adds elements in the discovery process of l
ALDERSON REPORTING COMPANY, INC.
15 I
affirmative responsibility to eliminate that which is unduly 2
burdensome or expensive."
3 Expensive, meaning?
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4 MR. COTTER:
That the cost of responding to the g
5 request exceeds the value of the response.
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6 COMMISSIONER AHEARNE:
It's a dollar value?
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.7 MR. COTTER:
Yes.
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6 COMMISSIONER AHEARNE:
How is that supposed to be d
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judged?
Yg 10 MR. COTTER:
There is some case law on it that I E
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11 can' t recite to you, but the combination is unduly and expensive.
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12 I presume the presiding officers would refer to that kind of S
5 13 case law.
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14 COMMISSIONER AREARNE:
Do you expect that to be used 9
15 often?
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16 MR. COTTER:
I have no way of responding to it.
No, cd g
17 I would not, generally.
18 MR. SHAPAR:
I think maybe theintervenors with 5"
19 the least resources might resort to that.
3n 20 COMMISSIONER AHEARNE:
You mean as a --
21 MR. SHAPAR:
Yeah.
22 COMMISSIONER AHEARNE:
I was having difficulty 23 understanding the difference between burdensome and expensive.
24 MR. SHAPAR:
What is unduly burdensome $.o the 25l Commission Staff is not necessarily unduly expens'ive.
The ALDERSON REPORTING COMPANY, INC.
I considerations may be the availability of the' Staff to respond 2
to it.
But what the Staff would find unduly burdensome because 3
of limited resources could be both unduly burdensome and 4
primarily unduly expensive for an intervenor with more limited
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5 resources.
6 COMMISSIONER AHEARNE:
On page 11, you were using R
7 this -- and I gather this becomes a fundamental support for one Kl 8
of your proposals -- a district court rule.
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MR. COTTER:
Yes.
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10 COMMISSIONER AHEARNE:
And since I find myself Ej 11 substantially in disagreement with this statement because I D
d 12 think it is greatly open-ended, namely the practical test is Ea 13 the questions -- would an answer serve any substantial purpose.
l 14 That seems to be so extremely subjective, and also probably 2
15 not really able to be answered until you see the answer, to f
16 have wondered whether there was any extensive further court w
d 17 decisions going up farther where that issue had been argued 5
18 out.
5" R
19 '
MR. COTTER:
I think this is a standard reference 20 and it has been used as a standard in a number of cases since.
21 I could give you chapter and verse on it, but I don ' t have it now.
22 MR. SHAPAR:
It's not really the' court, if you 23 I look at it carefully it's the expert's side, it's J.W. Moore, 24 who is recognized as the greatest authority in the United States.
I 25 COMMISSIONER GILINSKY:
Why don't we bring him in?
A DERSON REPORTING COMPANY,INC.
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'l MR. SHAPAR:
This court just happened to cite him, i
but any other court could cite him and frequently does.
3 He's from Yale Law School.
4 COMMISSIONER AHEARNE:
This causes you no concern?
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5 MR. SHAPAR:
He taught me procedure, so I buy this
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6 quote.
7 COMMISSIONER BRADFORD:
No showing off.
Xl 8
COMMISSIONER AHEARNE:
That's a non sequitur.
d 9
COMMISSIONER GILINSKY:
Did you pass that one?
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10 COMMISSIONER AHEARNE:
That doesn't fellow, because
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_g 11 he taught you procedure, you accept his position.-
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.g 12 MR.SHAPAR:
No, because of his reputation.
5 y ^13 COMMISSIONER AHEARNE:
My problem is when you say u
l 14 would an answer serve a substantial purpose, obviously anybody 2
15 is going to argue they're asking the question because it's going U
f 16 to serve a substantial purpose, and it doesn't seem to me that's W(
17 any kind of test that you can apply to discard any answer.
5 18 In fact, it seems to be a test to almost any E
I 19 question.
20 (Commissioner Gilinsky left at 10:25 a.m.)
21 MR. SHAPAR:
But it has to be ruled on.
22 COMMISSIONER AHEARNE:
Yes, but 'later on a proposal 23 goes on to say that challenges can be deferred.
24 MR. BICKUIT:
Uhat you're asking in essence is for 25 the adjudicator to make a judgment about whether he sees the ALDERSON REPORTING COMPANY. INC.
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18 I
discovery going anywhere.
If he does, he lets it go.
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2 COMMISSIONER AHEARNE:
It says on page 22, which 3
Tony says is his favorite section --
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4 MR. COTTER:
No,.740B (c).
e 5
COMMISSIONER AHEARNE:
It says, "An interrogatory h
6 otherwise proper is not necessarily objectionable merely because R
7 an answer to the interrogatory involves an opinion.
- However, a
j 8
the presiding officer may order that such an interrogatory need a
9 not be answered until after designated discovery has been z
h 10 completed."
11 MR. COTTER:
If you'll excuse me, I think that's a 3
{
12 non sequitur.
The fact that the presiding officer can interrupt Sg 13 the interrogatory process and direct some other approas; be a
14 taken has nothing to do with whether or not answering the 2
15 interrogatory would serve a substantial purpose.
g 16 COMMISSIONER AHEARNE:
But your conclusion is that as 6
17 this is not going to lead to postponing the day of reckoning 18 on whether that was a proper issue to be raised?
5 cnd Q 19 20 21 22
~
22 !
24 25 !
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HR. COTTER:
I'm not sure I understand what you're 2 saying.
I didn't oither.
4 CONNISSIONER ABEARNEs Where I thought we were 5 coming out originally is that you cannot challenge the staff 6 and ask them about their matters of opinion.
And at least I 7 see underlined hera the idea that yes, you can ask them 8 about matters of opinion, ip that not correct?
9 HR. COTTER:
That's correct.
But I don't 10 understand your problem.
11 COHHISSIONER AHEARNE:
You can ask them.
12 HR. COTTER :
You can ask them about matters of 13 opinion on which they have done some work to form an opinion.
14 HR. SHAPARs In other words, do you have an 15 opinion, staff?
The s taf f says res.
The next question is 16 w ha t is it, and the staff would answer in accordance with 17 this rule.
18 CHAIRHAN PALiADIN0s But I think one of the items 19 ve had concern about, our concern was expressed about, was 20 probing the thought process.
This does not suggest that you i
21 can probe the thought process.
22 HR. SHAPAR:
That was a very inexact way of l
23 describ
- ng a general result that we wan_ted.
In a sense ther 24 can probe the staf f 's mental processes to the extent th e
?,5 staff has already done the work and reached the conclusion i
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20 1 and has a conclusion.
2 COMMISSIONER AHEARNE:
Good.
I would have thought 3 when you asked for an opinion you're asking for more than 4 the conclusion, is that not true?
5 MR. SHAPARs The rule says you cin also ask for 6 the analytical methods that the staff used to reach its 7 conclusion, but you could not ask under the rule well, why 8 didn't you do it a different way.
9 COMMISSIONER AHEARNEa I gather this is now taking 10 language out of one of the Federal Rules of Practice.
11 MR. COTTERa How has that been interpreted in the 12 courts?
Or let me ask a more direct question.
What 13 difference do you expect this would cake, the presence of 14 this in our rules, what dif ference do you see that making in 15 our proceedings?
16 MR. COTTERS It affirmatively puts in the rule 17 what had only been previously adverted to in the appendices 18 described in the application for operation of the rules.
It 19 puts everyone on notice that in dealing with questions such 20 as these that they and the presiding officer can and will 21 look to the case law interpreting this rule and applying it.
22 COMMISSIONER AHEARNEa Does the case law in the 23 federal court system really apply to the kinds of cases we 24 have?
I'm not sure wha t that answer means.
25 MR. COTTER:
If you're talking about subject ALDERSON REPORTING COMPANY. INC, 400 VIRGIN *A AVE, S.W. WASHINGTON, D.C. 20024 (202) 554-2345 m
21 l
1 matters,.a generalization, no.
But if you're talkin,q about 2 the principle of questions being asked that
(
3 COMMISSIONER AHEARNE:
My concern was I thought 4 underlying all this was that one of the parties in our 5 proceeding, namely the staff, was going to be treated 6 dif f erently.
7 HR. COTTER:
They are.
8 COMMISSIONER AHEARNEe And is it therefore true 9 that when you go out and look at how has this rule been 10 applied in federal courts where there isn't such separate 11 parties, is that application in the federal court tradition 12 going to help or harm this underlying theme which at least 13 some of us were trying to push, namely to treat the staff 14 dif ferently?
15 MR. COTTER:
The treatment of the staff 16 dif ferently is contained in a separate section which is more 17 specific than this rule of general application.
18 COMMISSIONER AHEARNE:
You mean 20.
19 NR. COTTER:
Yes.
20 COMMISSIONER AHEARNE:
But if I look back on page 21 18, particularly now, as Leonard pointed out, for.740B(c) 22 it says that 740B(c) applies to the interrogatories served 23 pursuant to 720.
So it would seem that this overrides 24 anything in 720 that protects the staff.
25 MR. BICKWIT:
I don't think it's inconsistent in ALDERSON REPOfCNG COMPANY,it.C.
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22 1 snything that protects the staff.
2 3R. SHAPAR:
This is general protection for 3 everybody, but the staff has further general protection.
4 HR. COTTER:
The specific is controlling over the 5 general, and these are amendments to the general rules of 6 application which are then overridden to the extent that the 7 specific rule governing the discovery of the interrogatories 8 against the staff would override.
9 COMMISSIONER AHEARNE:
Which takes precedence, 40 10 or 20 7 11 ER. COTTER:
Twenty.
12 COMMISSIONER AHEARNE:
You're saying that when it 1
13 says the provisions of 40 apply to 20, that doesn't mean i
14 that 40 overrides 20.
15 MR. COTTER:
No.
But it means that to the extent 16that 20 does not give a specific protection to the staff on 17 a specific area that 40 applies to the staff.
18 COMMISSIONER AREARNE:
What about the other war 19 around?
If 40 seems to weaken the protection of 20 20 MR. COTTER:
That's not the relationship between 21 th em.
i 22 COMMISSIONER AHEARNE:
Except that 40 has this 23 phrases
" Discovery is allowable to the extent that an 24 answer would serve a substantial purpose."
25 HR. BICKWITs Where is that?
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COMMISSIONER AHEARNE:
The same page, 18, f
2 740(b)(2).
And that seems to weaken the protection of the 3 staf f, doesn 't it?
f to give you an 4
HR. COTTEH4 It's Like saying 4
5 example, everyone is required to go to the hearing, but the
~
6 government has to use Texas International Airlines out of 7 Baltimore, and the f act that everyone has to go to the 8 hearing does not change the narrower restriction that the 9 government has to use a particular airline from a particular 10 place.
11 MR. BICKWIT4 I think your point is it could be 12 made clearer, and I agree with that point.
What you want to 13 say is to the extent t;tese are consistent with 720, they
~
14 apply; but if they could be read as inconsistent, they de 15 not apply.
I don't see any conceptual difference.
4 16 COHHISSIONER AHEARNEs Yes.
17 NR. COTTER:
That to me is redundant, because it 's 18 very clear from the interpretation and application of rules 19 and procedures that it's not necessary.
20 HR. BICKWITs It doesn't hurt.
21 MR. SHAPAR:
If it gets you one vote, it's 22 necessary.
l 23 CHAIRMAN PALLADINO:
We're used to redundancy.
24 (Laughter.)
25 MR. COTTER:
That's why we end up with 740B(c).
l i
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HR. BICKWITs I think it is susceptible to some 2 confusion, I really do.
I hate to admit it.
3 (Laughter.)
4 COMMISSIONER BRADFORD:
What you want then is a 5 clear statement that even if discovery will serve a 6 substantial purpose -- even if that will serve a substantial 7 purpose, it won't be permitted.
8 HR. BICKWITs That's right.
9 COHNISSIONER AHEARNE:
Tha t's true, because 10 substantial purpose is open -- at least I believe that 11 substantial purpose is the kind of standard which it is so 12 hard to tell whether it's met or not.
In the practice 13 what's going to happen is our boards will say well, we're 14 not really sure, but it probably could be shown to meet 15 substantial purpose so we'll allow it, because it will be so 16 h ar d. to prove that it wouldn't meet a substantial purpose.
17 HB. BICKWIT:
You are reining in the discretion to 18 find substantial purpose, and the way you've phrased it is 19 unfortunate.
20 CONEISSIONER BRADFORD:
I think it's entirely 21 accurate.
You 're stating one half of the case which is the 22 reining in of discretion. But the fact is even when there is 23 clearly a substantial purpose 24 M2. BICKWIT If in the opinion of the 25 administrative judge there is substantial purpose but it ALDERSoN REPORTING COMPANY,INC, s
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25 1 violates the constraints of that section, he can't allow the 2 discovery.
3 COMMISSIONER BRADFORD:
That's my point.
It's not 4 Sust the case where he is in doubt that it's discretionary.
5 HR. BICKWIT:
He's a judge; he's not a 6 legislator.
This is the legislative body.
7 COMMISSIONER BRADFORDs Right.
That's why I'm 8 saying you may be losing a vote here.
You may have gained 9 three but --
10 (Laughter.)
11 CHAIRMAN PALLADIN04 Do you know how to fix it up?
12 HR. BICKWITs Yes.
13 COMMISSIONER BRADFORD:
"Fix it up" isn't quite 14 the right word.
15 (Laughter.)
16 COMMISSIONER AHEARNEs Of course, 720 does go on 17 to say that in a proceeding NBC staff will make available 18 for items which are relevant to the issues in the proceeding.
19 HR. SHAPARs But there 's another section in the 20 existing rule that says right right now they can only get 21 interrogatories f rom the staff if it's necessary for proper 22 decision in the case and it's not reasonably obtainable 23 elsewhere.
And on top of that there's the additional 24 restriction imposed by this rule.
One covers the general 25 area; one covers the specific area.
There's really no
[
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3 26 1 conflict.
But to'the extent your thought can be 2 implemented, it's easy to implement.
3 COMMISSIONEE AHEARNEa And now can I get back, 4 though, where I'm still obviously having difficulty with 5 B(c).
Tell me a little bit more, or Howard, you tell me.
6 Do you see it having any effect on proceedings, and if so, 7 what would it be?
8 HR. SHAPAR:
In this whole general thing of giving 9 the boards the initiative no control discovery, I an on 10 record as saying that I think it has potential for being 11 mildly beneficial.
12 (laughter.)
13 And I concur in this rule as proposed by Tony 14 Cotter.
15 COHNISSIONER AHEARNE:
Could you explain to me 18 this mild beneficial effect?
17 MR. ROSENTHAl:
Potential.
18 (Laughter.)
19 COMMISSIONER AHEARNE:
What would it do?
20 HR. SHAPARa The way the system now works, the s
21 boards sort of sit back, or the rules encourage them in 22 effect to sit back and wait for the parties to scream about 23 abuses of discover).
This rule in effect tells the boards 24 you don't have to wait until the' parties scream; kind of 25 monitor discovery on your own.
If you think it's being ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, o.C. 20024 (202) 554-2345
27
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1 abused, stop it or control it.
2 Another reason I thin!. it can be mildly beneficial 3 is because I think some boards are going to be aggressive 4 about it, and where the parties are not objectino on their 5 own, which can occur on rare occasions for special reasons --
6 COMMISSIONER BRADFORDs Vis-a-vis the staff nov 7 given the variocs changes of the last six months or so, do 8 rou think there are situations in which the staff is not
'9 objecting to discovery that it feels is unduly burdensome?
10 MR. SHAPAR:
Yes.
11 COMMISSIONER BRADFORD:
Why is that?
12 MR. SHAPAS:
I think this came out in a prior 13 discussion.
I think what I said and believe is that what 14 the staff does is keeps its eye mainly or to a large extent 15 I shou'1d say on whether or not its action is going to hold 18up a proceeding.
17 In other words, the staff in the past has not 18 objected even where it could under the present rule where it 19 thought well, is it worth it to maybe lose a week's time on 20 this case while it objects and waits f or the board to rule 21 on it, and two or three weeks go by of legal squabbling of 22 whether or not it should answer the interrcoatory.
We'll go 23 back and check with Denton and see well, what's this going 24 to do to you if you answer the 70 interrogatories in the 25 seismic area, and he says ALDERSoN REPcRTING COMPANY. INC, I
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1 COHEISSIONER ERADFORD:
I might actually have to 2 look at the blueprints.
3 HR. SHAPABs So it's a judgment call about wh ethe r j
g 4 or not swallcwing our rights, which we frequently do, would 5 be beneficial to the overall process or won 't be, so it's 6 innately a judgment call.
By going ahead and doing the work 7 even though we don 't have to in theory, will that advance 8 the case and get it decided,more quickly.
9 COHEISSIONER BRADFORD:
How do those mathematics to change now?
Instead of having the option of going ahead and 11 answering the interrogatories and saving the time, what 12 you 've got is a situation in which the board members will 13 always use the time because they have to review all the 14 interrogatories, including the ones which are not being 15 objected to, so that the board will in all cases lose the 16 time that it now only loses in those cases where the parties 17 objact.
18 MB. SHAPAR:
I don 't think that 's right, because 19 you 're dealing essentially with a period of " dead time."
20 Discovery is before you get to hearing.
The,boe rds will be 21 receiving copies of requests for the discovery, and they 22 will, I guess, see some cases where it looks funny.
23 Now, there are lots of ways they can handle it.
24 They can arrange a conference call and see what's going on-25 here.
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1 COMMISSIONER BRADFORD But if it 's dead time,
2 thea why is the staff shy about objecting?
3 HR. SHAPAR:
Because it's not always dead time.
4 Sometimes you 're going to have discovery which is getting 5 pretty close to the hearing process.
6 COHNISSION ER BR ADFORD :
And in that case it's live 7 time, and in that case the board reviewing the 8 interrogatories, you're going to always lose time, instead 9 of in those cases where a party "under the present rule --
I 10 HR. SHAPARs I would hope the boards would be just 11 as sensitive to the kind of practical considerations the 12 staff analyzes. To quote a case I think I have quoted 13 bef ore, Illinois v. Noodleman, jud'ges are not presuming more 14 interest than other people.
15 CHAIRMAN PALLADINO:
I guess, Tony, I'm surprised 16 every time this point is made, it's dead time, that you 17 don ' t put in that it may be dead time in that particular 18 case; but the most of your board members in the period in 19 which there is a dead time in one case are really working on i
20 another case, and so that it's not necessarily slack time 21 f or them.
22 MR. COTTER:
That's right.
23 MR. SHAPAR:
It may or may not be slack time 24 depending on the circumstances.
25 COMMISSIONER AHEARNE:
Let me try again and see if i
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30 1 I can get to another one of my concerns on tha t.
2 CHAIRMAN PALLADIN0s Were you answered on the one 3 on page 22?
4 COMMISSIONER AHEARNE:
I'm still on page 22.
I 5 think what Howard is really saying is it's a possible mild 6 beneficial plus.
7 CHAISF.AN PALLADINO:
This particular point?
8 COMNISSIONER AHEARNE:
Yes.
9 MR. BICKWIT:
I thought Howard 's answer related to 10 the whole thing.
11 MR. SHAPAR:
Hight, it did.
12 COMMIS3IONER AHEARNE:
This particular section, 13 740B (c).
14 MR. SHAPAR:
No.
I was referring to the general 15 thing.
16 COMMISSIONER AHEARhEs I'm talking about this 17 particular piece.
What is the impact of that piece on our 18 proceedings?
19 3R. SHAPAR:
In the second half of page 22?
20 COMMISSIONER AHEARNE:
Yes.
I assume you've heard 21 1t before.
22 MR. SHAPAR:
Yes, I have, but I want to make sure 23 you get a responsive answer this time.
24 CHAIRMAN PALLADINO:
Incid en ta lly, this section 25 gave me the most trouble both with regard to its content and ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
31 1 with regard to my understanding.
2 MB. SHAPARa I would not consider this provision 3 of much value.
4 COHNISSIONER AHEARNE:
My question is what impact 5 would it have?
~
6 MR. SHAPAR:
Very little, in my opinion.
7 C05HISSIONER AHEARNE:
Are you saying that as far 8 as you can tell that this will not change the current 9 practice?
10 MR. SHAPARs Yes.
That particular provision.
11 3R. BICKWIT:
It is a codification of the current 12 practice; therefore, it would not change the current 13 practice.
14 ER. SHAPAR:
But you have to break ~it down.
I 15 quess you have to look at the first sentence and then the 16 second sentence.
The first sentence I could live without.
17 I don 't thint it's of much value.
18 COMMISSIONER AHEARNEs It's not objectionable 19 merely because it calls for an opinion.
20 ER. SHAPAR I don't think it's going to do very 21 such.
22 CHAIRMAN PALLADINO:
Is there a question nov 23 whether cr not you can ask a question that involves an 24 opinion?
25 MR. SHAPAR:
No, I don 't think so.
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1 CHAIRMAN PALLADINO So you're saying this isn't 2 necessary because it's understood.
3 MR. SHAPAR:
Tha t 's correct.
4 CHAIRMAN PALLADINO:
I didn't think it was so.
5 HR. SHAPAR4 I believe it to be.
6 HR. COTTER:
I think that's essentially correct.
7 This is, according to the rules, what is the practice.
8 COMMISSIONER AHEARNEs What you're saying is it's 9 not some questions would be disallowed because they're to asking fcr an opinion, but if they were to be disallowed it 11 would be because the sub j ect matter on which the opinion was 12 asked 13 HR. COTTER:
Well, the history of this is that it 14 arose primarily in connection with a problem -- and I hate of mixed questions of law and fact.
15 to get into it 16 MB. BICKWIT:
Whose problem was that?
17 HR. SHAPAR:
That was your pro blem.
No one else 18 raised it.
19 (Laughter.)
20 MR. COTTER Well, to the extent tha t the term 21 " mental processes" was extremely vaq ue, this serves to 22 establish a frame of reference by bringing in the history of 23 the mixture of questions of law and fact.
And what is a 24 question of fact and what is a question of law is something 25 that defeats most law students au'
.as been an extremely ALDERSON REPORTING COMPANY, INC.
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1 dif ficult question to resolve.
2 MR. SHAPAR:
The smarter ones have never had any 3 trouble with it, though.
4 HR. COTTES:
Well, there aren't any of those here.
5 (laughter.)
6 I thought it would be useful to bring in the body 7 of law explicitly that has addressed tha t question so that 8 there could be guidance available.
9 COMMISSI'.iER AHEARNE:
Somehow I think you're 10 bringing in the camel's noise; that's the feeling I get.
11 COMMISSIONER BEADFORD:
You're earlier memo on 12 this section says it's drawn from 33(b) of the Federal Rules 13 of Civil Procedure.
It doesn't seem to have brought those 14 rules to any -- I guess if your question is what does it adi 15 to current practice, maybe not very much, but I'm also not 16 sure it does any harm.
17 COMMISSIONER AHEARNE:
Well, the reason I asked is I
18 tha t at least the little backup reading I did on it 19 tried to go back through the Fe'eral Rules of Practice and 20 supporting explanations of that, and what was beginning to 21 bother me was that all of these seemed to be appicable to 22 problems that had come up prior to the '70s, and it came up 23 in cases which I didn't think really translated to our 24 situation unless you were assuming that the NRC staff is 25 just like all the other parties.
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And since my approach, personal approach on a lot 2 of this had been to treat the NRC staff differently, I 3 wasn't really comfortable with the f act that there is a body 4 of fadera1 tradition that now,ays how this is applied; 5 because I was afraid that if it were applied that way, you 6 would end up saying the staff isn't any different than any 7 other parties.
8 MB. BICKWIT:
We solved that problem for you.
9 Didn 't we solve tuat with this fix?
to CHAIRHAN PAllADINO:
Well, I think the important 11 part, at least in my mind, that helps us with the staff is 12 the last one ; and it says that you can't ask them questions 13 of why didn ' t you do it with a different method.
So I saw 14 two parts to this, one that says let's get a little more 15 discipline in the discovery process and give the presiding 18 officer a chance to do this; and the other that says look, 17 you can' t examine why a person didn't do it by a different 18 method.
19 MR. SHAPAR.
Yes, exactly.
20 CHAIREAN PALlADINO:
But getting back to page 22, 21 it 's the second sentence I have trouble with just 22 understanding.
Could you explain to me what it me as?
23 MB. COTTER 4 It means if the presiding officer 24 sees the parties are gctting into some kind of protracted 25 imp asse, he can intervene and say stop what you're doing now ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTCN. O C. 20024 (202) 554 2345
35 1 and do it another way.
2 CHAIRMAN PALLADINO:
Are we talking now 3 specifically on page 22, "Howev er, the presiding officer mar 4 order, pursuant to its powers to supervise discovery, that 5 such an interrogatory need not be answered until after 6 designated discovery has been completed," which dcesn't make 7 sense to me.
It says you don't have to answer it until 8 discovery has been completed, but I thought the reason it 9 was asked was becsuse the person wan ted to participate in 10 discovery.
11 ER. BICKWIT:
Until some other designated 12 discovery has been completed-13 MR. COTTER:
Discovery is a generic terz; an 14 interrogatory is one form of discovery.
15 ER. BICKWIT:
And you don't have to answer that 16 question until you yourself have completed some discovery 1/ that you 're interested in.
18 COMMISSIONER AHEARNE:
So, for example, if there 's 19 a contention raised and the staff asks on what is that I
20 contention based, what information do you have, and the 21 person raising the contention well, I don't want to answer 22 that until I've finished my discovery of the sta f f, then 23 it's possible the board would say all right, you don't have 24 to tell th e staff on what you based your contention until 25 y ou 've completed discovery of the staff.
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MR. BICKWIT:
Well, we have a contention rule that v
2 we're considering and will probably relate to that kind of 3 question.
4 COMMISSIONER AHEARNEs No.
But that provision 5 would enable this to happen, is that correct?
6 MH. BICKWITs Yes.
7 MR. SHAPAR:
That's highly unlikely.
8 CHAIBMAN PALLADINO:
Your key word is 9 "de signa ted. "
What does --
to MR. BICKWIT:
You're talking about an 11 interrogatory that Tony serves on me.
The board says I 12 don 't have to answer that interrogatory until I have a 13 chance to conduct some discovery of my own.
14 CHAIRMAN PALLADIN0s Is that what " designated" 15 means?
16 ER. BICKWIT That is one applica tion of 17 "de signa ted. "
It means a certain discovery that is singled l
18 out by the board as a precondition f or the re quirem en t to 19 answer that question.
l l
20 CHAIRMAN PALLADINO:
Is it clear to all lawyers?
21 I m e an, is it clear to the layperson?
Is it clear enough to l
l 22 lawyers?
23 MR. BICKWIT:
That's clear.
To me that's one of 24 the meanings.
25 CHAIRMAN PALLADINO:
I don't mind words that are l
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37 1 understood by the people that ought to understand it, but I 2 am leery when I don't understand it.
3 HR. BICKWIT:
I must say --
4 CHAIRMAN PALLADINO:
Can this be fixed up or 5 clarified a little bit?
6 ER. BICKWIT:
If the Commissio: doesn't understand 7 this language, I really don't see that anything is lost by 8 taking it out.
9 Now, Tony may want to dispute that.
I think that 10 is a suf ficient reenen for dropping it.
11 CHAIRMAN PALLADINO:
I wasn't asking you to drop 12 it.
I was just trying to understand it.
13 ER. BICKWIT:
The strongest argument for dropping 14 it is that we could then move the discussion on to something 15 else, because I don't regard this as an important part of 16 today 's discussion.
17 COMMISSIONER AHEARNE:
I have to exception that as 18 an operating th eo r y, because otherwise we will eliminate all 19 technical rales.
20 MR. BICKWlT.
Throughout this entire discussion 21 our office has regarded this provision as more trouble than 22 it's wor th, and I have never been more convinced of that 23 tha n I am at this moment.
24 MR. COTTER:
There may be particular words or 25 phrases in here that give you trouble in application, but I ALDERSoN REPORTING COMPANY,INC.
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38 1 have alwa's felt that it was important becease it gave an 2 affirmative ability or power in the presiding officer to 3 stop a discovery battle among the parties which had 4 degenerated into just that, a discovery battle.
5 COMMISSIONER AHEARNE:
Wait a minute now.
Howard 6 felt, as I say, at best very lukewarm support.
Len felt 7 that this was more trouble than it was worth.
8 MR. BICKWIT:
I would say opposition.
9 COMMISSIONER AHEARNE:
Alan?
10 MR. ROSENTHA14 I felt from the outset that it had 11 precious little potential worth, and I now tend to agree 12 with Len that on a cost-benefit balance in terms of 13 Commission time if nothing else there's something to be said 14 for it going.
I had no objection to it at the outset - but I 15 did not -- in agreement with Len I did not regard this as 16 being a key provision of the overall discovery amendments.
17 COMMISSIONER AHEARNE:
So given that, Tony, would 18 you help me understand clearly then you believe --
19 HB. COTTER:
Because I'm the only one here who is 20 a presiding officer --
21 COMMISFIONER AHEARNE:
I understand tha t 22 situation.
But could you explain again for me why you think 23 it would be really beneficial.
What is the current problem to use an approach that you have 24 this is going to affect 25 challenged us with many times.
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COMdISSIONER BRADFORD:
I can tell you why I think 2 it's necessary.
There aren 't many sections in here that 3 give guidance as to what is not objectionable.
The basic 4 purpose of this rule is to lay out areas in which we expect 5 the tree to be pruned back.
I think without some sections 6 such as this, the boards may take it as guidance to cut back 7 on current practice.
And by codifying this aspect of the 8 current practice we secure it against the time at which the 9 body of common law in this. area is going to be substantially 10 revised by what the Commission puts out.
So if you want to 11 salvage a particular piece of the current practice, it's 12 worth doing so explicitly.
13 MR. COTTEE:
I think you have to understand that a 14 piece of litigation largely belongs to the parties to it, 15 and that it is an effort by both parties coming from 16 opposite directions to state their side of an issue.
And 17 that traditionally, particularly in this area of discovery, 18 the conduct of discovery has historically since the federal 19 rules were put in place been a matter for the parties 20 themselves to manage and conduct.
And that the change that 21 this represents is to affirmatively say to the presiding 22 officers you now have not simply a responsibility but also l
23 an authority in the int srest of expediting the proceeding to 24 step in and manage discovery by whatever means you think is 25 proper and will add to the efficient and expeditious l
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40 1 consideration of the case.
2 And by saying that affirmatively to the board, you 3 are poisting thes in a direction that they had not been 4 pointed in nor had they really been authorired to go in the 5 past.
And as I understand it, you have been saying all 6 along that your concern is to tighten up these proceedings, 7 and I see this as one way of doing it.
8 MR. HOSENTHAL:
Tsn't it true that power of the 9 board -- we 're now talking, I assume, about subsection (c),
10 are we not, and that's all.
11 Now, I go back and look at the bottom of 18 and 12 the top of 19, and I thought in terms of the powers of the 13 presiding officer in the control of discovery it was fairly 14 well spellad out there, so that I don't understand, Tony, 15 f rankly why the subsection (c) is necessary in order to 18 reinforce the authority of a licensino board.
17 ER. COTTER:
Because it's different.
.730(b)(2) 18 talks about the discovery and the standards that will apply l
l 19 to it.
It does not talk about coming in and saying not 20 sim ply that you can ' t do this because it's duplicative or 21 expensive or what have you, not simply stopping it.
22. 74 0 B ( c ) says you can come in and say do it's this way l
{
23 because it's better or faster.
That's quite different.
i 24 MR. SHAPAR:
How about adding the word "ma n ne r ? "
l 25 MR. BICK'4IT:
No.
It does say you can do it.
l l
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MR. ROSENTHAL:
It looks to me like (b)(2) is very 2 broad.
3 MR. BICKWIT:
It.ays it may be limited by the 4 presiding officer if he determines that the discovery is 5 attainable from some other method that's more convenient.
6
!R. COTTER:
That doesn't say to him affirmatively 7 go and do it that way.
8 ER. BICKWIT:
I think it does.
9 ER. COTTER:
That makes him simply say stop.
10 (Commissioner Roberts exited at 10:55 a.m. )
11 MR. BICKWIT:
I think he can't ve ry well say-stop 12 doing it th at way because this other way is more convenient 13 and not authorize the doing of it the other way.
14 CHAIRMAN PALLADINO:
Let me ask a contrary 15 question.
What's wrong with keeping this section (c) on 16 page 22 in?
17 MR. BICKWIT:
I do: 't thin k there 's anything vrong l
18 with it.
I I
19 CHAIRMAN PALLADINO:
Because a layperson might.
20 well, my feeling after I read this whole document was that 21 it was a significant improvement in what we're doing, and my 22 problem was understandine the specific usage of language l
23 such as the one in paragraph (c).
24 COMMISSIONER AHEARNE:
Tony, another argument 25 against (c), at least for me, which I think would support ALDERSON REPORTING COMPANY. INC.
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9 02 1 Peter --
2 3R. COTTER:
It's the assumption the presiding 3 officer is going to come in and abuse the parties by 4 restricting their activities.
5 COMMISSIONER AHEARNE4 No, no.
One of the odd 6 pieces of literature I quickly scanned was something put 7 together I guess at least under the name of Howard's former 8 teacher, and some of the history of this seemed to be that 9 this was put in because the courts before had been too 10 rigid.
And when this went into the Code of Federal 11 Regulations it was to provide some greater flexibility, to 12 point out that some of the questions tna t have been thrown 13 out shouldn't have been thrown out.
And so from Peter's 14 point of view codif ying this might be to prevent us from 15 becoming too rigid.
I didn't think we were, so I'm uneasy to about it.
17 ER. COTTERa I don't think that follows, because 18 this doesn ' t say throw sowething out; it says consider an 19 alternative.
20 COMMISSIONER AHEARNE:
That's right.
It says what 21 could stay in.
I'm just very uneasy about this, and I can't 22 vote for it at the moment.
I would really have to think Z3 more about this.
~
l 24 CHAIRMAN PALLADINO:
We have had recommendations 25 that we ALDERSON REPORTING COMPANY, INC, l
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43 1
COMEISSIONER BRADFORD:
There are really a few 2 separate points, the one that applies to th e second 3 sentence, of whether that really adds anything to the 4 earlier section.
5 Ihe first sentence was my main concern.
The 6 second one, I think it 's probably true that it can be 7 derived from the earlier section.
8 CHAIBEAN PALLADINO:
When you say " concern," you 9 sean you don 't want it in?
10 COMMISSIONER BR ADFORD:
No.
I do want it in.
11 CHAIRMAN PALLADINO:
You do want it in.
That told 12 ze something, the first sen tence.
The second sentence I had 13 great difficulty just understanding.
14 COMMISSIONER AHEARNE:
My problem is I think ther 15 both tell se something, and I'm not comfortable with what 16 the y tell me.
17 CHAIBMAN PALLADINO:
Further questions?
18 COMMISSIONER AHEARNE:
I have just one other 19 question which wasn't related to that one.
When you're 20 talking about the sanction section on page 21 where you talk 21 about an appropriate sanction pursuant to Section 2.707, 22 shouldn' t have some kind of conforming change to 2.707 to 23 pick up this ?
And it's just a minor question.
24 MR. BICKWITs I don't think it's really necessary.
25 COMMISSIONER AHEARNE:
It's very minor.
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MR. BICKWITs I think 2.707 by its terms applies 2 to all disc o ve ry.
3 CHAIRMAN PALLADINO:
Do you have questions?
4 COMMISSIONER BRADFORD:
6,..'
couple.
Most of 5 them have been at least discussed.
6 (Commissioner Roberts entered at 11:00 a.m.)
7 COMMISSIONER BRADFORD:
What is the purpose for 8 exceptional circumstances as a test against the staff by way 9 of deposition ?
That's on page 24.
10 HR. SHAPAE:
This is not a change.
This is the 11 existing rule.
12 COMMISSIONER BRADFORD:
Okay.
Still, why is that 13 exceptional circumstance?
An exceptional circumstance would 14 be an intervenor didn't have enough money to pay for a 15 deposition, but aside from that 16 HR. SHAPAR:
You 're asking a f actual question, and 17 I can answer it.
The reason for that is the existinc i
18 restriction against discovery on the staff that its 19 retources were being tied up in discovery, an attempt was 20 made, I think, when the rules were restructured around that 21 time in 1972 to give the staff some protection against the 22 imposition of demands on its resources through discovery.
23 And since the staff put forward all these documents which it 24 put forward -- the SER, the EIS -- and the fact that its 25 testimony was made available prior to the hea ring, it was l
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45 1 felt that balancing things out that staff people should not 2 be deposed unless there was first some justification for 3 it.
And that rule has remained in effect in its present 4 form for about ten lears.
5 COMMISSIONER BRADFORDs What do you make of the 6 fact tha t at least one intervenor commented that a more 7 efficient way to conduct discovery would be for the NBC to 8 sponsor a set of depositions at which instead of having so 9 auch done through interrogatories back and forth in the 10 mails that the witnesses were essentially available for 11 depositions?
12 3R. SH A PA R It wo uld be an enormous drain on 13 resources.
14 COMMISSIONEB BHADFORD Are you saying it wouldn't 15 save any time in the sense of written interrogatories?
16 MR. SHAPABa I think you can't treat intervenorr 17 as fungible.
I'm saying that there are some intervenors 18 where you might sa ve time, although experience has shown 19 that when discovery is resorted to -- and Alan made this 20 point in the memorandum he sent up about th ree weeks ago --
l 21 experience has not shown that when discovery is freely given 22 tha t it saves time at the hearing.
That's not been our 23 experience.
24 COMMISSION ER BR ADFORD:
I'm asking a different 25 question.
I's asking whether it's possible to sa ve ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
n6 1 interrogatory time through the use of depositions.
2 ER. ROSENTHALa I think it depends upon what's 3 being sought by way of deposition.
If the staff in order to 4 respond to questions at a deposition were required to 5 produce five or six or seven different people with expertise 6 in different areas who have to then sit around for the 7 length of the deposition waiting f or questions that might 8get into their specific area of expertise, I could envisage 9 a considerably greater time, staff time being consumed in 10 the deposition process than would be in interrogatories 11 which can be managed -- the answers to those.
12 On the other hand, I would suppose that if it 13 involved one staff person, it migh t well be that that one 14 individual's time would be less consaned at a deposition 15 taking in his office or somewhere within the Commission 18 territory than it would be his having to put on his green 17 eyeshade and write out lengthy answers to questions which l
18 then would be reviewed by 75 different lovels up the line.
l l
19 So if you're looking at it f rom the standpoint of 20 time consumption, deposition versus response to 2', interrogato ries, I don't think -- Howard or other members of 22 the staff may have a different view of this -- but I don't 23 think you can generalize.
I think it would depend again 24 upon the nature of the inquiry and again how many 25 disciplines were involved and the like.
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COH5ISSIONER BRADFORD:
I guess what I'n really 2 askig is whether there are ways that the presiding officers 3 could better use depositions as a technique in terms of 4 expediting the process.
Should we be giving them more 5 discretion in that area to have depositions in place of 6 int $errogatories ?
l 7
ER. COTTER:
The kind of thing you have in sind is 8 now being done in that presiding officers are much more 9 f requently saying to the parties sit down together and talk, i
l l
10 and it's not done through the formal depositions so that it i
l 11 is discovery under oath.
But there is, I believe, an I
12 increase in communication that is proving very beneficial.
I 13 COMMISSIONER AHEARNE:
Would we be legally able to 14 sponsor depositions't 15 16 1
17
)
18 19 20 i
21 22 23 24 25 ALDERSON REPORTING CCMPANY,:NC, 400 VIRGINIA AVE S.W., WASHINGTON. D.C. 20024 (202) 554 2345
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BR. BICKWIT Yes, I think we would be.
2 COMMISSIONER AHEARNE:
I thought part of the 3 argument on depositions and the reason they are not used 4 that auch is they're very expensive.
5 ER. BICKWIT:
Yes.
Our view is if you provide 6 procedural assistance to all parties, which is what is being 7 suggested, you are consistent with the appropriations 8 limitation.
That may not be the view of all involved here, 9 but that is cur view.
10 CHAIRMAN PALLADINO:
Well, that's certainly not my 11 vie w.
12 MR. BICKWIT:
You 're saying that's not your view 13 of the law or that's not your view of what should be done?
14 CHAIEYAN PALLADINC-Both.
15 MR. BICXWIT:
Okay.
Well, I'm rot coming down on 16 the second question.
On the first I disagree.
17 COMMISSIONER AHEARNE:
And I guess I'm with Peter 18 on interest.
Whether or not it would be -- my own personal 19 experience f rom a previous agency, in which I had to be 20 deposed several times, is I doubt whether it would save much 21 tim e.
But nevertheless, if it would I would be in favor of 22 it.
But I guess I am dubious on --
23 COMMISSIONER BRADFORD:
Are you saying compared to 24 having to answer those same questions in writing?
25 COMMISSIONER AHEARNE:
Oh, absolutely.
It wo uld ALDERSoN REPORTING COMPANY,INC, 400 VIAGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
09 1 have been much easier to answer them in writing.
2 COMMISSIONER BRADFORDs I can't write faster than 3 I can talk.
4 COMMISSIONER AHEARNE:
It's sort of the difference 5 between an oral exam and a take-home exam.
On a take-home 6 exam you have to put the effort explicitly on those explicit 7 questions.
An oral exas you havt prepare for how broad 8 that question can become.
So I've found I had to spend 9 much more time preparing for the deposition than I would 10 have spent answering it in writing.
11 COMMISSIONER BRADFORD:
What you also have to 12 know, thcugh, is what happens then at the next stage, namely 13 the hearing itself, whether the witness responded to 14 interrogatories, then spends a lot more time --
15 COMMISSIONER AHEARNE:
Absolutely.
And the 16 dif ference also, as Alan pointed out, there is a multiple 17 layer review on the written answers.
18 CHAIRMAN PALlADINO:
Pete, I don't understand the 19 focus of your question.
Are you saying tha t --
~
20 COMMISSIONER BRADFOBD I started out talkina 21 about the exceptional circumstance test, but w hr.t I was 22 really interested in light of some of the comments we 23 received, whether we could make more creative use of 24 depositions in ways that might save time and get to the 25 heart of issues f aster in our proceedings.
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Let me take issue with what I took to be your 2 concern the re, which is if we had a deposition which we paid 3 for and that all the parties came, that that would violate 4 the law.
I don't see a difference between that and the 5 hearing itself.
That is, you make cross-examination 6 available to all parties.
7 sIRMAN PALLADINO:
No, but we don't pay for 8 their sti'f f time.
9 COMMISSIONER BRADFORD:
Oh, I'm not suggesting we 10 pay the Intervenors to come to the deposition.
I'm just 11 suggesting that we pay the court reporter and make our 12 peo ple a vailable.
13 CHAIRMAN P ALLADIN O:
The only cost you're talking 14 about is the court reporter?
Well, I'd rather, since that 15 isn 't the subject at issue today, I'd rather defer further 16 consideration on it.
And perhaps it is necessary for us to 17 define what we 're talking about before I jump in.
I just 18 didn ' t want to necessar'ly go along with saying we were 19 going to start to pay for depositions.
20 COMMISSIONER BR ADFORD :
No.
21 CHAIRMAN PALLADINC:
But perha ps there is a place 22 where I would agree with the procedure.
But I'd rather 23 def er that to where we have the facts before us, because I 24 don ' t think it's necessary as part of this, is it?
25 COMMISSIONER AHEARNE:
No, but it might be useful ALDERSON REPORTING COMPANY,INC.
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51 1 for that legal croup to address that question.
2 MB. BICKWITa of whether it would be legal?
3 COMMISSIONER AHEARNEs First, whether it would be 4 useful.
5 COMMISSIONER BRADFORD:
That's the more important 6 question.
7 HR. BICKWITs Okay.
8 COMMISSIONER AHEAENEa If it's not usef ul, it's 9 irrelevant.
10 MR. BICKWITs I'll be happy to address it.
11 CHAIRMAN PALLADINot Do you have more, Peter?
12 COMMISSICNER BR ADFORD :
Yes.
On the next page --
13 and of course it comes up earlier as well -- the standard of 14 reasons for not employing alternative data assumptions in 15 analysts.
What happens when you get a line of questioning 16 that in effect says, why did you do it this way?
Isn't the 17 staff as a practical matter going to have to respond to tha t 18 b y sa ying, because it is better than +5e alternative ways of 19 doing it in many cases?
20 MR. SHAPARs I wouldn't say in many cases, if tha t 21 gives the impression of being the usual case.
I think the 22 staff can say that it reached this conclusion and used this 23 code or this methodology, and the reasons why 1: reached the 24 conclusions.
I don't think it necessarily follows it's 25 going to say as part of tha t answer, this is a better way ALDERSON REPORTING COMPANY,INC,
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52 1 than any other way.
2 COMMISSICNER AHEARNE:
Is your question asking the 3 staff why is their method correct?
4 COMMISSIONER BRADFORD:
I 'm really trying to get 5 at how workable this standard is.
What I have in mind is --
6 what was the controversial statistical method tha t wound up 7 getting so heavily criticired in WASH-14007 Do you remember 8 offhand?
9 COMMISSIONER AHEARNE:
The square root of the 10 product, I think.
11 COMMISSIONER BRADFORD:
If that were the document 12 a t issue that we were conducting an interrogatory against 13 for WASH-1400, and you asked why was that method used, I 14 don 't see how that question could be answered without a 15 discussion of the relative merits of that method against the 16 other leading statistical contenders.
17 Now, I take it the staff is free under this 18 standard to offer such a suggestion?
19 HR. SHAPAR:
Yes.
20 COMMISSIONER BRADFORD:
Can they object to the Et interrogatory on the basis tha t it necessarily calls for 22 comparison?
23 NR. SHAPARs If they didn't do the comparison,
24 they don 't have to do it, as I read this rule.
In other l
25 words, if they said this is tne conclusion they reached and l
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53 1 this is why they did it and the interrogatory is why don't 2 you think this other method is better, I guess under this 3 they wouldn't have to answer that question.
4 HR. ROSENTHAL:
We run into this all of the time, 5 particularly in the area of these probabilistic analyges, 6 where you frequently get three entirely different 7 approaches.
Applicant has one, staff has a second, and 8 Intervenor, if he or it has. affirmative ev.'.dence, may have a 9 third.
10 Now, it seems to me that the time for the 11 exploration of the comparative worth of methods A, B and C 12 is the hearing.
It seems to me that in discovery, that the 13 only obligation that should be put upon the staff is to set 14 forth its methodology and the assumptions that were the 15 foundation of that methodology.
16 Then the other parties that got the facts as to 17 the way the staff went about this, they then have an 18 opportunity to come up with their ammuniticn to attack that 19 methodology if they see fit to do so at the hearing, and in 20 doing so endeavor to establish that some other methodology 21 is more appropriate.
And they can ask the staff at the 22 hearing, why didn't they pursue that.
23 COMMISSIONEB BRADFORD:
What_you're saying is, my 24 hypothetical interrogatory pro ba bl y is objectionable?
25 MR. ROSENTHAL:
Absolutely, as I see it.
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54 1
Now, as you know, I have been, in a series of 2 these meetings, have been pushing for limitation of that, 3 and I've been up front about it.
4 CHAIRMAN PALLADINOs But it doesn't preclude 5 discussion of that issue in the nesring?
6 MR. ROSENTHAL Absolutely not.
That's a major --
7 where you have competing methodologies at the hearing, 8 that's a major question.
Indeed, the Board is conf ronted 9 with the necessity of choosing frequently between contrary to methodologies or differing methodologies which may produce 11 widely varying results.
12 We are now talking simply about discovery, and it 13 seems to r a again that staff is required to lay bare what 14 its methodology is, what were the assumptions that underlay 15 that methodology.
That is fair in terms of giving the 16 opposition the opportunity to prepare its own case, to know 17 what it is going to be confronting in terms of the staff, 18 and go to their own expert and have him look over the 19 staff 's methodology assumptions.
20 COMMISSIONER BRADFORD:
But now come back to l
21 John 's point regarding the merits of being ceposed as i
22 against the merits of responding in writing.
That is, under 23 the f ramework that I think Allen is propounding many of the 24 questions that were asked in deposition that you would l
25 rather have answered in writing will in fact not get asked ALDERSON REPORTING COMPANY. INC, I
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~55 1 until somebody gets you on a witness stand somewhere, 2 because to ask all of the types of questions -- all of this 3 type of question, you've got actually to go to the hearing 4 and wait your turn, and then be cross-examined.
5 The net result of this method, at least as to that 6 type of question, is not to give you the chance to answer 7 the way you'd like to, which is in response to 8 interrogatories, but to put,you on a witness stand somewhere 9 where you don 't know that it's going to be asked and will 10 have to come up with the answer out of your head in the 11 local courthouse.
12 CHAIRMAN PALLADINO:
But I do feel that in the 13 discovery process it's quite a burden to have to respond to 14 every question on an alternative way of doing something, 15 because it does mean that in order to compare them you have 16 to go do them.
And in the hearing process I think the 17 people that are saying there is a better method now propose I
l 18 i t, and they have to show why it's better.
And I think 19 tha t's an important distinction.
20 COMMISSIONER BRADFORD:
Yes, I agree with you.
21 I ' m just tryino to get at whether this way of limiting the 22 exploration of alternatives is the most effective ona.
It 23 certainly doet cut it off right at the root and I'm just not i
24 sure tha t 's the best way to do it.
f l
25 MR. SHAPAR:
I think there's a larger point.
I l
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1 CHAIRMAN PALLADINO:
I was going to ask, does this 2 preclude a question on the accuracy of your method?
In 3 other words, suppose I ask you, how did vou reach your 4 conclusion on the seismic capehility c this particular 5 structure, and you say, 1 did it thus and so on, and I say, 6can you demonstrate that that's an appropriate or accurate 7 or accepted way.
8 Would that be a proper question or is that 3 precluded?
10 MR. SHAPAR:
I'm not sure it would be precluded, 11 but I think the answer would bes This is what we've done 12 and this is our opinion.
We stand on it.
13 The larger point I was going to make is that the 14 basic purpose of discovery is to avoid surprise and the 15 system that's proposed here avoids surprises.
That's the 16 traditional justification f or discovery.
17 I think some of these things we have been 18 discussing go beyond the traditional purpose of discovery, 19 because there's no way, no reasonable way, with the 20 information that's now available and the information that 21 would be available by alternative means of discovery under 22 these rules, that any person stands a good chance of being 23 surprised a t the hea ring.
The hearing, takes over and 24 everybody 's fair game for cross-examination.
25 COMMISSIONER AHEARNE:
When you say the principal ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
57 1 purposi is to avoid surprise, surprise on whose side?
2 HR. SHAPARs On anybody's side.
3 CORMISSIONER BRADFORD:
I don't think Willie Moore 4 taught you that, Howard.
I thought the principal purpose 5 was to save hearing time, through, among cther things, 6 avoiding surprise.
7 HR. SHAPAR I don't think so.
That's not my 8 recollec tion.
9 COMMISSIONER 3RADFORD:
Incidentally, J. Willie to Moore, by the time I got to law school, was bankruptcy.
11
- 58. SHAPAR:
That was a later era.
12 CHAIRMAN PALLADINO:
Again, in the interest of 13 saving tim e, I was wondering, did you have any more 14 questions, Pete?
15 Tom, did you have any?
16 Now, I gather that the Commissioners are not ready 17 to vote.
For myself, I found this a rather good document, j
18 er c't for the questions I had specifically on item C on 19 page 22.
I could have lived with it.
i i
l 20 I gather, however, that there are now some 21 suggested changes that the Commissioners ha ve poin ted to, 22 one being this general versus specific.
I was told OGC 23 knows how to correct this.
I am still,not clear on the 24 thrust that the Commissioners would like to see in the 25 rewrite with regard to page 22, item C.
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58 1
Hy impression at the moment is that at least one 2 of the Commissioners would like to change the first sentence 3 of that and would not object to throwing out the rest of it, 4 and two Commissioners, or at least one othet Commissioner, 5would throw out the whole thing, and one would try to 6 clarify the second sentence.
7 And Tom, I don't know if you have any view on 8 that?
9 COMMISSIONER AHEARNE:
My point was, if I had to 10 vote right now I would vote to throw it out.
I want to 11 think through it a little bit more.
12 COMMISSIONER ROBERTS:
Are we going to get a vote 13 sheet and be able to make comments?
14 CHAIRMAN PALLADINO:
Yes.
I was hoping we could 15 identify the areas where we would like to see some 16 correction. and ask the corrections be made, and then we see 17 them by vote sheet.
So would it be acceptable, with regard 13 to paragraph C on 22, to keep it in with some attem.'t to 19 clarif y th a t second seatence for those of us who don 't know 20 wha t it means?
21 All righ t.
Then at least that gives us maximum 22 fle xibility.
Okay.
23 MR. BICKWIT:
Mr. Chairman. _
24 CHAIRMAN PALLADINO:
Yes?
25 MR. BICKWIT:
I have a couple of policy issues ALCERSoN REPORTING CCMPANY. INC.
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59 1 that I wanted to focus the Commission on.
We can do it in a 2 m en o o r --
3 CHAIRMAN PALLADIN0s With regard to this?
4 HR. BICKWIT:
With respect to some of the 5 decisions that were made here.
We concur --
6 CO.HMISSIONER AHEARNE:
Decisions that were made?
7 MR. BICKWITs Decisions that were made in putting 8 this document together.
In, a couple of cases I'm no t clear 9 that's where the Commission is and I'd like the Commission 10 to focus on some of tnose points.
And de can do it now or 11 we can do it in a memo, whatever you would like.
12 CHAIRMAN PALLADIN0a How long do you think it 13 would take?
14 ER. BICKWIT:
I could just raise them.
15 CHAIRMAN PALLADINO:
Why don't you raise them and 16 we 'll see.
17
- 53. BICKWIT:
On this matter that we have just 18 beer discussing, the extent of the shield nay be too narrow 19 for Commission preferences.
It says that you don't have to 20 give reasons as to why you didn't use a method or an 21 alternative analysis that was not considered in the staff 22 review.
We added that "not considered in the staff review" 23 and I'm not sure that's right.
24 What if the staff did consider an alternative way 25 of going but didn't rely on that way of going?
Do you want ALDERSON REPORTING COMPANY,INC.
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60 1 the shield to cover tha t pa rticular point?
I just don't 2 know the answer to that question.
3 COMMISSIONER BRADFORD:
You have a certain 4 instinct for self-destruction.
5 MB. COTTER Tnere may be a related issue there.
6 Does this policy, to that question -- does the section on 7 interrogatories in.720 sean that where the staff has not 8 done any analysis on a particular area that they do not have 9 to disclose that?
10 MR. SHAPAR Disclose what, that they haven't done 11 any analysis?
The answer will be, it's engineering 12 judgment, in the real world.
13 COMMISSIONEB AHEARNE:
Is there is a philosophy 14 that if there's no analysis you say 4.t's engineering 15 judgment?
16 MR. SHAPAR4 Some.
Ask for an engineering 17 textbook.
18 MB. COTTER 4 I'm thinking in an a rea where the
'9 staff decided not to analyze and simply to accept what they 20 read in the Applicant's submissions, whether or not the 21 staff should do analysis and whether this precludes even 22 their disclosing that th ey have not done it 23 MB. SHAPAB:
It certainly does not preclude their 24 saying they have done no analysis.
It precludes any 25 requirement that they go ahead and do that analysis.
1 l
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ER. BICKWITs And any requirement that they answer 2 why they haven't.
3 COH5ISSICMER AHEARNE:
It is clea r, isn 't it, tha t 4 what we're talking about is what is available under Sdiscovery?
A lot of these :
ings we're saying are not 6 available under discovery are stil.1 f air game in the i
7 h?aring, right?
8 MR. COTTER Yes.,
9 3R. BICKWIT I think to pose this question, just 10 consider whether you we at " considered" in there or you want 11 " relied on" instead of " considered."
12 Then en page 8, at the bottom of the -- be fore yo u 13 get to the first full paragraph, the last sentence before 14 you get to the first full paragraph, the example given is an i
15 example tha t would allow the Board to say, conduct informal 16 document exchanges and colloquies prior to using 17 interrogatories.
Do you want to tell the Board that it can 18 have those documen t exchanges and colloquies as an 19 alternative to using interrogatories or as an alterna cive to 20 using any discovery, whatever?
21 This is an issue I raised at the end of the last 22 meeting.
l 23 COMMISSIONER AHEARNE:
When you say it establishes l
I
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24 the Board 's authority 25 2R. BICKWIT:
I think the Board has the authority i
i ALDERSON REPORTING COMPANY,INC.
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62 1 for the example that is in there.
If you widen it to say 2 that the inforsal document exchanges and colloquies ought to 3 be the exclusive means of getting answers to questions prior 4 to the hearing, then you have changed the existing rule and 5 you 've changed the existing authority and the Ccamission 6 ought to focus: on whether they want to do that.
7 COHH15SIONER AHEARNE:
And the change in authority 8is --
S MR. BICKWIT:
I do not think that presently the 10 Bosed can say, instead of interrogatories and instead of 11 formal discovery, we want an informal colloquy.
And if iou 12 vant the Board to be able to do that I think you have to say 13 s o.
14 COMMISSION ES AHEARNE:
But the Boards, can th e y 15 not 16 EE. BICKWITs They can say, let's have an exchange 17 and colloquy, but they cannot derogate from the discovery 18 rights tha t are in the rule.
And if you want to allow them 19 to do that and to prciide that this is the exclusive means 20 of obtaining information prior to hearing, then I think you 21 should say so in the example.
I think the language of the 22 rule is broad enough to provide f or that, but I just don't 23 know where the Commission is on that ques tion.
24 CH AIENAN P ALl ADINO :
Well, I think we don 't want 25 t o.
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NH. BICKWITs Then I think that you ought tr, say 2 tha t they can 't.
3 ER. SHAPAR:
I think your conclusion, though, may 4 be a little stark, because of the Board orders an informal 5
6 7
9 10 l
11 12 13 14 15 16 17 i
18 19 20 21 22 23 24 25 ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S W., WASHINGTON. D.C. 20024 (202) 554 2345
64 1 colloquy and it is held, on the basis of that the Board may 2 very well be able to say th.et further discovery under the 3 proposed rule would serve no substantial purpose and would 4 be unduly expensive.
In other words, the informal colloquy 5 may bring into play some of the standards in the proposed 6 rule that would obviate further formal discovery.
7 MR. BICKWITs My question is, is it the 8 Commission 's intent that th,e Board could make that finding 9 at that time and preclude all further discovery?
If it is, 10 I think as I said last time, I think it is really the most 11 controversial feature of this proposed proposal and the 12 Commission ought to focus hard on that.
13 MR. SHAPAR:
Since this is copied f rom the 14 proposed Federal Eule, what is the result under the rule, 15 Tony?
16 MR. COTIER:
I don't understand the question.
17 MR. BICKWIT:
The question is, under this rule do l
18 you want to provide that the Board can say, have an informal 19 exchange of documents, have a conference and ask your l
20 questions a t that informal conference, and after it's over 21 tha t we're satisfied that that does it in terms of what l
l 22 parties are seeking prior to the trial, that's it?
I
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23 COMMISSIONER BRADFORD:
Tom, I thought I heard you l
24 make a motion that I'd be glad to second.
25 COMMISSIONER ROBERTS:
What's that?
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COMMISSIONER BRADFORD:
Didn't you say write the 2 seno af ter all?
3 COHNISSIONER ROBERTS:
No, that was Chilk.
4 (Laughter.)
5 3R. BICKWIT:
Thanks, Sam.
6 CHAIRMAN PALLADINO:
I think that does bring up a 7 point, that we were just going to hear yours and not debate 8 it.
9 (Laughter.)
10 MR. BICKWIT:
And then I have only one other, if I 11 can find it. On page 14, the last sentence in the first 12 paragraph says:
"However, the Commission expects that 13 Licensing Boards will carefully scrutinize interroga'ory 14 requests which are objected to by other parties in a timely 15 manner and may well impose numerical limits on 16 interrogatories in the appropriate circumstances."
17 I think it's the Commission's intent that, even in 18 the absence of any objections by the parties, numerical 19 limits may be imposed on in terrogatories.
And if that's the 20 case, then I think you we.t to put a period after " manner" 21 and strika "and" and have a new sentence that says, " Boards 22 may also impose numerical limits on interrogatories in the 23 appropriate circumstances."
24 But where the Commission is on that limitation on 25 interrogatories, I'm not entirely clear.
So I think that's l
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON. 0.C. 20024 (202) 554 2345
66 1 another matter that ~tas to be dealt with.
2 COMMISSI..VER BRADFORD:
Is the problem for the 3 rule as it stands now for the staff to require of other 4 parties to put interrogatories, to put interrogatories to 5 other parties?
8 MR. BICKWIT The way the rule reads, the existing 7 law is not disturbed on that question.
And our best reading 8 of the existing law is 'that. probably the staff cannot do 9 that.
10 COEMISSIONER BRADF0HD4 Cannot?
11 HR. BICKWITs Yeah.
U 3R. SHAPAR:
I bet you could go back and look for 13 ten years and you could never find an interrogatory like 14 that from the staff.
15 5H. ROSENTHALs They would be very ill advised to 16 do that.
17 COMEISSIONER BR ADFORD:
To put it another way, can 18 the Applicant pose an interrogatory to an Intervenor or vice 19 versa that 20 MR. BICKWIT4 That asks, do an alternative 21 analysis?
I don't think so.
22 MR. Sh!APAR He can't :nake him crea te work they 23 haven ' t done.
24 COMMISSIONER BRADFORD4 How about the "why didn't 25 you" type?
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67 1
MR. SHAPAR:
I guess they can, and continue to do 2 so.
3 MR. COTTERS I think that's correct.
4 CHAIRMAN PAL 1ADINO:
You say they can ask the 5 question, why didn't you do so?
And the answer might be 6 because they didn't think it was appropriate.
7 MR. COTTERa If it was objected to, it would be a 8 tough question for the presiding officer to look at.
But we 9 specifically considered this, because when Harold put in his 10 proposal it was written as you see it now.
And I for a time 11 considered putting it in the rules of general applicability 12 in the.740's, and then did not do so, on the theory that 13 the burden of proof -- the argument that was persuasive to 14 se was ther burden of proof was on the Applicant and not the 15 staff.
16 COMMISSIONER BRADFORD4 Will one effect of this if 17it is approved be to derive those kind of interrogatories 18 f rom the staff to the Applicant?
19 COMMISSIONER AHEARNE:
Frankly, for myself I'm not l
20 concerned about tha t.
That's speculative, but I doubt it.
22 MR. SHAF.R:
We'd have to wait and see.
23 MR. SICK. T:
The "why didn't you" question.
24 COMMISSIONER AHEARNE:
My concern really goes to 25 the staff.
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CHAIRMAN PALLADINO:
May. I make a suggestion on 2 your questions, Len?
I think it would be worth writing a 3 meno, and I would think it would also be helpful if you 4 could indicate how the wording would be changed if we wanted 5 to go one way and how the wording would be if we wanted to 6 go the other way.
7 HR. BICKWIT:
Fine.
8 CHAIRMAN PALLADIN0s Otherwise, we might have to 9 go through two iterations.
This way when the revised 10 version comes out those questions could be highlighted and 11 give us a choice.
12 3R. SHAPAR:
And that'll teach you to raise points 13 like this a t the last minute.
14 (Laughter.)
15 CHAIRMAN PALLADINO:
Any other items on the 16 table?
17 (No response.)
18 Thank you, and we 'll stand adjourned.
19 (Whereupon, at 11:35 a.m.,
the meeting was 20 adjourned. )
21 23 24 25 i
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NUCLEAR REGM. TORY CO!9C55:CN This is 50 certify thac he attached procescings before che COMMISSION MEETING in the =acter cf; Discussion and Possible Vote on Revised Licensing Procedures, Proposed Rule Change to Part 2
- Dace-cf Prcc.eecing:
November 5, 1981 Decket Nu=ber :
Place of :re.ceeding:
Washington, D.
C.
were-held as herein appears, and thic this Ls the criginal. :ranser p19
- herect Cet- :he ills cf he Ccc Ls Lcc.,
Ann Riley Official Eepercer (Typed)
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OfficiaJ ?.eperter (Iignature) l d
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