ML20045D500
| ML20045D500 | |
| Person / Time | |
|---|---|
| Issue date: | 06/18/1993 |
| From: | Margulies M Atomic Safety and Licensing Board Panel |
| To: | Clarke T, Robert Davis CLARKE, T., NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| 93-01-PF, 93-1-PF, 93-673-01-PF, 93-673-1-PF, NUDOCS 9306290072 | |
| Download: ML20045D500 (4) | |
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UNITED STATES.
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NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD PANEL i
5, WASHINGTON. D.C. 20555 June 18, 1993 DOCKETED US NRC ALJ -
1 Roger K.
Davis, Esquire JUN 17 1993 Office of the General Counsel U.S.
Nuclear Regulatory Commission Doc Number A I Washington, D.C.
20555 Timothy Clarke, Esquire f
5 North Adams Street Rockville, Maryland 20850
Dear Counsellors:
i Re:
In the Matter of Lloyd P.
Zerr Docket No. 93-01-PF-i ASLBP No. 93-673-01-PF l
(siscovery Motions)
This is in response to the letter of June 17,.1993, from l
counsel for the Nuclear Regulatory Commission raising:
several procedural issues regarding its "NRC Motion for Deposition of Defendant Lloyd P.
Zerr" and "NRC Motion for Discovery by Interrogatories, Requests for Admissions and Production of Documents" served June 9, 1993 and
" Respondent's Response To NRC Objections," served June 8, 1993.
J Counsel is correct that that under the provisions of 10 C.F.R.
SS 13.21(d)(2) and 13.27(c) responses to the NRC motions are due no later than' June 24, 1993 and June 23, 1993, for the Zerr filing.
Counsel, in his letter, requests that NRC's discovery motions be scheduled for oral hearing and, if " Respondent's Response To NRC Objections," which requests an oral hearing, be treated as a motion for discovery, pursuant to 10 C.F.R.
S 13. 21(d) (1), that all motions Le scheduled for hearing at the same date and time.
He advises that counsel for both parties. agree that they would be available for an oral hearing regarding the discovery motions on~ June 28 and 29.
It appears that counsel for Mr. Zerr intends " Respondent's Response To NRC Objections," which rejects NRC's refusal to respond to defendant's discovery requests, to be considered 9306240D72'930618 PDR MISC 9306290072 PDR A
-2 a motion for discovery, despite the fact that it is never titled as such nor does it reference 13 C.F.R. S 13.2(d) which authorizes discovery and sets forth requirements for granting the motion.
Defendant's filing of June 8, 1993 will be considered a motion for discsvery because counsel appears to intend it as such by his request for oral
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argument on NRC's objections to defendant's discovery requests.
It would be premature to set down the three motions for oral hearing at this time considering that no responses have been filed.
Experience has shown that with properly submitted motions for discovery in most. instances there is no need for an oral hearing.
The written motions and responses should contain the relevant facts and applicable law so that the discovery issues are joined by the filings.
The oral l
hearing is no substitute for this underlying preparation.
The oral hearing is for the purpose of deciding the issues that have been joined and not for the submission of fact and law in the first instance.
l l
At this stage it is not possible to know how effectively the l
issues will be joined by the filings.
As an example, although key opposition to NRC's discovery requests appears to be defendant's reliance on " constitutional rights," at this time there is no way of knowing what this means.
In Davis v.
Fendler, 650 F.2d 1154, 1160 (1981), the Court found that a proper assertion of a Fifth Amendment privilege requires, at a minimum, a good-faith effort to provide the trial judge with sufficient information from which he can make an intelligent evaluation of the claim.
Similarly, as an example, there is no way of knowing how i
effectively the discovery issues will be joined on defendant's request for discovery from the NRC pertaining to other entities, the Edwin D. Hatch Facility and the United States Attorney, to which the NRC objects, i
Absent all of the filings relating to the motions the request for an oral hearing is premature and will not be l
granted at this time.
l l
NRC counsel in his letter of June 17 indicates that delay in I
its obtaining of requested discovery will have significant I
adverse impacts on its ability to file dispositive motions by July 2, 1993, as set forth in the Scheduling Order and that the NRC may likely request extension of time for the filing of dispositive motions.
For good cause the Scheduling Order may be altered.
Should the parties need additional time to file discovery motion i
l
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-3 responses, or to amend the motions, they should feel free to request extensions.
The time for future scheduled filings may be adjusted accordingly.
Sincerely, c
Morton B.
Margulies Chief Administrative Law Judge cc:
Service List i
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O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Docket No. 93-01-PF In the Matter of Lloyd P.
Zerr ASLBP No. 93-673-01-PFC CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " letter" in the above-captioned proceeding have been served upon the following persons by U.S. Mail first class, except as otherwise noted, this 18th day of June 1993:
Office of Commission Appellate Adjudication U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 Roger K.
Davis, Esq.
Daryl M.
Shapiro, Esq.
Office of the General Counsel Mail Stop 15 B 18 U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 Morton B.
Margulies Chief Administrative Law Judge Mail Stop EW-439 U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 Lloyd P.
Zerr 718 13th Street, N.E.
Washington, D.
C.
20002 Timothy Clarke, Esq.
l 5 North Adams Street Rockville, Maryland 20850 b
Wames M.
Cutchin V l
Copy sent by FAX in addition to regular service.
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