ML20045F637
| ML20045F637 | |
| Person / Time | |
|---|---|
| Issue date: | 07/01/1993 |
| From: | NRC |
| To: | |
| References | |
| 93-01-PF, 93-1-PF, 93-673-01-PFC, 93-673-1-PFC, NUDOCS 9307080173 | |
| Download: ML20045F637 (78) | |
Text
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OFFICIAL TRANSCRIPT OF PROCEEDINGS i
k00GI Nuclear Regulatory Commission Tide:
Lloyd P.
Zerr e
Docket No.
93-01-PF ASLBP No. 93-673-01-PFC 9
tqcAn g Bethesda, Maryland DATI Thursday, July 1,
1993 31 - 106
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BEFORE THE 2
UNITED STATES NUCLEAR REGULATORY COMMISSION I
(
3
-X 4
In the Matter of:
Docker No. 93-01-PF ASLBP No. 93-673-01-PFC 5
LLOYD P.
ZERR l
6
-X 7
8 Nuclear Regulatory Commission 9
4350 East-West Highway 10 5th Floor Hearing Room 11 Bethesda, Maryland 12 13 Thursday, July 1, 1993 14
(
15 The above-entitled matter came on for oral 16 argument, pursuant to notice, at 1:00 p.m.
17 18 BEFORE:
19 HON. MORTON B.
MARGULIES, 20 ADMINISTRATIVE LAW JUDGE l
21 22 23 24.
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33 PROCEEDINGS 2
[1:00 p.m.)
3 JUDGE MARGULIES:
Good afternoon.
Pursuant to my 4
order of June 24, 1993, we have set for today oral argument 5'
on a number of discovery motions.
6 The first was served by defendant Zerr on June 8, 7
1993.
Two motions were served by the Nuclear Regulatory 8
Commission on June 9, 1993.
9 We also gave the parties an opportunity to 10 supplement their pleadings.
11 Mr. Zerr filed a supplement and we gave the 12 Nuclear Regulatory Commission until June 30 to respond.
13 They did respond on June 30 and I also have 24 received a supplemental reply filed by the Nuclear 15 Regulatory Commission as of today.
16 Have you received that document, Mr. Clarke?
17 MR. CLARKE:
Yes, I received that when I arrived 18 here.
I received the one document that was multi-page last 19 evening by fax and I received the other one when I came here 20 today.
I was advised it was sent to my office, but I was in 21 another trial all morning.
I have had a chance to review 22 it, however.
23 JUDGE MARGULIES:
We will at the appropriate time 24 take sufficient time to review it.
We will start with your 25 motion first, Mr. Clarke, which you filed first and after
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going through that, we can take as much time as you need to 2
review the documents.
3 MR. CLARKE:
Thank you.
I don't have any problem 4
with needing more time to review what they have sent this 5
morning.
I think it does go to addressing certain of the 6
issues that were raised in~my discovery request.
Perhaps 7
the easier way to deal with our objection to our -- our 8
discovery matter is to deal with some of these issues 9
straightforwardly.
10 I think that the primary issue that we have, that 11 we take objection with respect to is discovery request by 12 the NRC --
13 JUDGE MARGULIES:
Excuse me, Mr. Clarke.
I first 14 want to proceed with your motion for discovery which was
)
15 filed first.
Then we will get into the NRC's discovery.
As 16 a matter of comfort, there is no need for you to stand e'ach 17 time.
18 MR. CLARKE:
All right.
Our request for discovery 19 20 JUDGE MARGULIES:
Let me just introduce this and 21 we can get to it.
What I would like to do is take each of 22 the disputed discovery requests in turn.
23 The first one is Defendant's Discovery Request 24 Number 1:
"St-e with particularity the facts and 25 circumstances relied upon by the NRC to support the
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allegations in the complaint in paragraph 4 through 123 2
inclusive."
i 2
3 In response to that, the NRC takes the position 4
that the investigative report identifies the witnesses 5
interviewed and includes copies of the exhibits and written
{
6 reports of the interviews of witnesses and somewhere else in 7
their statements they say they have turned over to you 1200 i
4 l
8 pages of underlying information.
9 They also go on to state that the complaint itself i
a 10 is extraordinarily particularized.
1 4
3 11 Are they in error?
12 MR. CLARKE:
I can't tell you whether their 13 complaint is extraordinarily particularized because that i
14 would mean in comparison to some other employee like Lloyd l
15 Zerr so I haven't checked every other employee case.
16 I can suggest to you or I can tell you that they I
17 have forwarded to me a vast volume of paperwork, about 1500 18 pages or so of paperwork which I have had the opportunity to 19 review and we have purchased copies of those. items.
So I do 20 have those items.
21 What the problem is, I think that we differ with 22 respect to our approach en this question is that what I have 23 simply asked them to do is to suggest that what is in this 24 box of paper supports their various allegations rather than 25 trying to do a hunt and peck system which they seem to
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36 a
2 suggest we should be able to do.
1 g
2 JUDGE MARGULIES:
So your complaint isn't 'that 3
they supplied you insufficient information.
l 4
MR. CLARKE:
Counsel have represented they have
)
I l
5 given me everything.
I believe them.
I do not believe that l
6 they have in that regard additional information.
What I t
4 2
7 have asked them to do is I have asked them to say what 8
supports these various proposals and I would only give, and 9
1 am sure that counsel would agree, that there are numerous 10 times when, for instance, they started off with one figure 11 that they were looking for in response to a particular claim 12 and they end up with a different figure.
13 Now, cbviously, if the different figure is lower, 14 we like that idea, except for the fact I'd like to know what 15 it is you are claiming and how did you get there, who are 16 the witnesses who support these positions and if they say 17 this witness is going to say -- one of the questions has to 18 do with a lease -- this witness says they signed a lease 19 with this person, we could probably stipulate to that i
20 document, forget everything else.
21 That's the point that we would like them to do:
22 Name tne witness and the documents for each count.
Then we 23 would be able to come back with a stipulaticn saying on 24 those documents we have no objection and on those witnesses 25 we would stipulate to that testimony.
Let's get on to what i
I l
4
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I 37 1
the neart of this case is about.
2 JUDGE MARGULIES:
What does complainant's counsel 3
have to say about that?
l l
4 MR. DAVIS:
Your Honor, we think that the basis 5
for the allegations is crystal clear.
The complaint is 1
6 extraordinarily particularized.
It refers to specific 7
vouchers that have been supplied and the underlying 8
investigative report identifies the reports of interviews of 9
ten, 15, 20 witnesses that clearly relate to those -- for 10 instance, the transactions that are not -- they are not -- 1 11 mean, that are not -- the vouchers themselves but attached 12 to the vouchers such as the rental agreements, the lease 13 agreements.
The interview with the person who leased the 14 house to Mr. Zerr is obviously the source of the 15 information, along with the voucher regarding -- and the IE lease agreement -- regarding whether the rent was 875 or l
17
$600.
l l
I would say that these primary key documents are 18 j
i l
19 not the whole 1500.
They are about, I believe, 50 exhibits 1
20 to the investigative report which are the key documents.
21 It seems to us it's incredibly obvious who the 22 principal witnesses are and what the key documentation is.
l l
Again, I just cannot imagine a more particularized j
23 24 complaint setting out what the circumstances are on which we 25 base this complaint.
1
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1 To the extent that he wants to bind us in some 2
sense, I mean there is some flavor of that in his motion 3
although it's not, I don't think, entirely consistent with 4
the request itself.
The absolute time we are bound is when 5
we exchange witness lists, which of these people will be 6
witnesses, and which documents we will be using but it seems 7
to us to be really a nonsensical notion that the defendant 8
needs more specific information.
9 JUDGE MARGULIES:
Could you point out specifically 10 in the complaint where you have that problem where there are a
i 11 two figures used?
12 MR. CLARKE:
Well, it's not necessarily where the i
13 two figures are used but one of the things they are talking
~
14 about here is restitution.
In the course of their discovery i
. )
15 which they have provided to me there are numerous 16 circumstances where there are two figures that are used.
I j
17 There is a whole series of letters to the United 1
i 18 States Attorney for the Southern District of Georgia all of i
4 I
19 which have different dollar amounts in them by their 20 investigator.
21 They keep coming as decreasing amounts so I have 22
-- to some extent I am glad they are decreasing but I am not j
23 sure how they are getting there.
1, 24 If they have their case they should be able to say 25 this is what we are saying or. Count 1.
These are the I
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witnesses.
This is the documentation.
Count 2 -- and it l
2 may be very simple.
It may be long but it may be very 3
simple to do.
4 JUDGE MARGULIES:
Is there any requirement under i
1 4
5 the discovery rules and regulations that require them to do i
6 it?
It would be nice but is that required?
)
7 MR. CLARKE:
There is not an explicit requirement 6
under the discovery rules for them to do this but the rules 9
contemplate, I think, and obviously I can only go by an 10 inference, the discovery rules perhaps do not contemplate a 11 case with over 100 counts involving this type of 12 circumstance, all of which are peeled out of one set of 13 documents.
14 To simply ask the government what is it that you 15 are telling me I did wrong, give me notice, don't tell me 16 that I can find it, that is simply fundamental due process 17 and that's what we are asking for.
18 JUDGE MARGULIES:
Mr. Davis?
19 MR. DAVIS:
You only have to look at the first 20 count, Your Honor, paragraph 4.
For pay period 9 covering 21 April 8,
April 21, the respondent submitted Form 145 22 claiming compensation for 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> of overtime.
l 23 That form has been provided.
I don't really 24 understand how we could provide more information as to that 25 count.
The defendant has our copy, the copy we have has the
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records that are referred to there.
2 JUDGE MARGULIES:
It would appear to me from the 3
papers before me, they have given you everything that you 4
can work with and would be entitled to under the discovery 5
regulations.
6 I think if you have any particular questions about 7
specific instances, Mr. Clarke, you can get together with 8
the parties on an informal basis and I am sure they will be 9
able to help you resolve them but from what I can see in 10 terms of what has been submitted to you in terms of the i
11 investigative reports and all the underlying documents, I i
I 12 can't see where they are required to turn anything more than 13 that over to you.
would be nice if they would separate out all 14 It 7
'S this material by count but I do not believe it's a 16 requirement.
17 MR. DAVIS:
Thank you.
18 JUDGE MARGULIES:
Let's move on to the second 19 discovery request.
It's Discovery Request Number 2:
20
" Provide the name, home and business addresses, home and 21 business telephone numbers, job assignment, if applicable, 22 of all witnesses to the events alleged in the cocplaint."
23 The government says that they have turned over to 24 you the names of the witnesses and for those that are 25 currently employed by the NRC their NRC addresses and
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telephone numbers.
2 What is the particular problem with that?
3 MR. CLARKE:
They have given business addresses.
4 They have also said that it is impossible to talk with any 5
of the witnesses unless counsel for the NRC is present.
6 This means that no one is able to say anything 7
contrary to the wishes of the NRC because counsel is present
,1 l
8 during those interviews.
I can have no personal interview J
9 whatsoever.
If I had a home telephone number of someone I 5
10 could call them up and say you are not working, please meet i
11 with me to discuss these facts.
i j
12 I can't do that because I don't have access to 5
13 that information.
They have access, entirely they have l
1
'4 access to that information and they have chosen to withhold 15 that information.
16 I think it becomes important in light of the fact l
17 that in their response making note to the document which is i
18 their response of June 23 on page 6, they have said that 19 they are not going to do any informal interviewing and they 20 are not going to do anything until after the defendant j
21 submits to a deposition.
I I
22 They are not going to permit me to talk to one of i
j 23 their witnesses, not one, and I would submit to you that i
j 24 their investigators are still talking to Lloyd Zer: this 25 week
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So they have a completely one-way street as far ac 4
2 discovery is concerned.
I am not trying to get private i
3 information.
I regret the fact we have to ask for this 4
information.
I am certainly not going to use it and sell'it-5 as a mailing list but I would like to have the opportunity 6
to call some of these people at their home so that I can 7
make some contact with them without having to go through 8
counsel for the NRC to get permission.
9 JUDGE MARGULIES:
Counsel for the NRC has taken a i
q 10 contrary position that the legal requirements are that 11 counsel for Mr. Zerr do just that, that the witnesses are 12 not available to Mr. Clarke, whether or not they are at
[
a i
13 their work place, is that correct?
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14 MR. DAVIS:
For NRC employees, yes.
It's our
)
1 15 position that he can interview them and we agreed to that l
16 even though I think we could have probably insisted on l
17 depositions but that we should be present because they are 1B employees of the NRC and there is in accordance with the 19 traditional rule that opposing counsel is not to speak to 20 employees of a party in matters, on matters in which they 21 might be bound of work within the scope of their employment.
22 We think we are being very reasonable offering 23 interviews.
We are not saying it has to take place, that 24 Mr. Zerr's deposition has to take place first at all.
Mr.
1 25 Clarke is free to interview them prior to the deposition of
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1 Mr Zerr.
i 2
We believe it's proper that we be present for such s
3 interviews, whether it be in person or c.n the telephone.
i 4
Of course, this really goes to discovery request J
I 5
15 more directly.
1 1
j 6
JUDGE MARGULIES:
Let's limit our address to this i
7 discovery request solely as to the matter of identification.
1 i
l B
They have identified the witnesses, have they not?
9 MR. CLARKE:
I have every reason to believe they I
10 have identified the witnesses.
11 JUDGE MARGULIES:
So the problem is not 12 identification of the witnesses.
It's access to 13 interviewing them?
14 MR. CLARKE:
That's correct.
The problem is 15 access to interviewing them.
The answers which they have 16 given as far as the access information limits the ability to 17 access.
i 18 JUDGE MARGULIES:
But you have no problem in terms 19 of knowing who are the potential witnesses and where they 20 are employed and how they can be reached through their l
21 employment?
22 MR. CLARKE:
I believe that they have provided 23 that information and I also would state that I believe that 24 if there are additional witnesses or if there is a change of 25 telephone number that counsel for the NRC would provide that
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I information.
2 JUDGE MARGULIES:
You have no problem with the 3
people cown in Georgia in terms of their commercial i
4 enterprises and where they can be reached and how they can 5
be reached?
1 6
MR. CLARKE:
They have given phone numbers and 1
7 information Concerning the people in Georgia.
That has been a
provided.
The citizens who are not employees of the 9
government, that has been included within the information, l
10 realtors, et cetera.
Tnat information has been provided.
11 The problem is not with those witnesses.
The 12 problem is with the NRC witnesses who are cloaked away from 13 us entirely and we would strongly object.
14 The only reason why we tie in this question of 15 names and addresses at this point is that the NRC has done 16 so in their response.
They have said we are not going to 17 cooperate until you give us a deposition.
The rules don't 18 say that.
19 JUDGE MARGULIES:
We will just set that aside for 20 the minute in having taken up that discovery request.
21 Apparently the problem is not with identification, but 22 access.
23 MR. CLARKE:
That's correct.
I 24 JUDGE MARGULIES:
Let's move on to Discovery 25 Request Number 5:
" Provide a detailed site plan for Hatch,
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1 identifying all locations within and outside the protected i
2 area, specifying the nature of activity at each location."
3 Have you provided anything to Mr. Clarke along 4
those lines?
5-MR. DAVIS:
Yes, we have We have provided a site 6
plan identifying 77 specific areas and locations of the 7
plant.
8 JUDGE MARGULIES:
Have you looked at that?
9 MR. CLARKE:
Yes, I have a site plan which appears 10 to be on a xerox copy of a site plan that was on a legal 11 size piece of paper with the help of a magnifying glass you 12 can at least identify that there appear to be spaces that 13 are on there.
It is not within the detail that we had asked 14 for.
15 It's obvious that the reason for all of this, and 16 counsel understands the reason for it, it's obvious that 17 they have suggested that he was doing work -- could not have 18 been doing any work requiring overtime because he could not 19 have been there the protected area because their little time 20 clock says he wasn't in the protected area and there is i
21 nothing else to do outside the protected area.
22 The site plan they have given me, I do not believe i
23 that it is sufficient to be able to utilize for that.
I i
24 want to know everything that they could possibly have done 25 in Georgia that's work related that can show up there and if
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i i.
1 it's anywhere on that site that is work related then they 2
have not proven their case with their time clock.
t 3
JUDGE MARGULIES:
What is the definition of 4
protected area, Mr. Davis?
5 MR. DAVIS:
It's an area in which anyone entering 6
it, entering that area of the facility has to use a card, as l
7 we do here, to enter offices, as I understand it.
So it's 1
8 limited access by a card reader and then there is a computer 9
printout of whc it was that entered an area.
10 I will reexamine the copy that was supplied to see 11 if it was legible or if we can make a more legible copy 12 available.
We can read the copy we have and I assume -- I 13 believe we gave him the same copy.
14 As I have told Mr. Clarke, I have gone back and 15 asked the project manager at 1 White Flint North if this l
l 16 site plan reflects the protected area and he indicated there 1
l 17 was a similar -- it is symbolized there by a fence type l
18 symbol on the plan.
19 We submit that we have complied with the request.
20 JUDGE MARGULIES:
In terms of this protected area, i
21 is that within the facility itself in terms of within 22 buildings rather than within the site?
23 MR. DAVIS:
I am not sure whether it goes through 24 particular buildings.
It's my understanding that the main 25 location outside of the protected area is the administration IJUs RILEY & ASSOCIATES, LTD.
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building of Georgia Power and Mr. Zerr may have had some 2
reason to go there on occasien.
3 JUDGE MARGULIES:
How about storage yards, would 4
the storage yards be outside the protected area?
^
5 MP. DAVIS:
I have not examined it in that detail, t
6 I'm sorry, I didn't bring a copy with me.
7 JUDGE MARGULIES:
Does the map only show what's i
t 8
within the protected area or does it also show what is i
i 9
outside?
l 20 MR. DAVIS:
We understand it to show what is 1
l 11 outside as well.
i l
i l
l 12 MR. CLARKE:
I think the difficulty with respect 13 to the need for a site plan is that -- I would submit to you i
6 14 that Mr. Zerr was there.
He had numerous job I
)
15 responsibilities outside of the protected area.
The entire t
16 concept of training took place -- book training -- took i.
17 place outside of the protected area in a set of buildings i
18 that aren't within the protected area.
i t
19 We need to be able to show what's protected, i
20 what's not, where the fence is, how you get in, et cetera.
l 21 We have been basically told it's classified, you can't have 22 it, or Mr Zerr was there, he ought to know.
l 23 Well, I think the government has an obligation to 24 provide the information and we are not going to sell it to 25 anybody.
I am willing to have access to it at the NRC
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office but I want to see something better than an 18th copy 2
xeroxed that is represented to be okay.
3 1 think we are entitled to know because I think 4
they ought to have a site plan on the wall in this hearing 5
room so we can show and walk through it for you when you 6
have this hearing because this is going to take a long time 7
to deal with this issue.
8 JUDGE MARGULIES:
Do they show on what they have 9
given you places of activity outside the protected area?
10 MR. CLARKE:
It shows a building.
Doesn't show 11 trailers that are on site which is not surprising that it 12 wouldn't show trailers which are more temporary in nature.
13 However, they were there.
I have no idea whether they are 14 still there but it's a matter of significance because
.7 15 activity rock place within those trailers, required activity 16 for Mr. Zerr.
17 So they are saying he didn't work, but he was 18 there.
Therefore, I think they have an obligation to show 19 that.
We should have an opportunity to take a look at this 20 site plan.
This is not a circumstance where the gate is 22 next to the street and you use your car, you get through the 22 gate and you are in a protected area.
It's not that at all.
23 There is an entire field of area that is open 24 within the Hatch area and then you go into a certain limited 25 portion that happens to be within the protected area, but
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it's not the whole place.
j I
i 2
JUDGE MARGULIES:
That's what I was getting at in l
3 terms of my questions as to wnat is the protceted area and i
4 how does it relate to the entire facility.
i 5
MR., CLARKE:
I think I would just analogize it's l
l 6
like saying this building.
Portions of this building you d
7 need to get into with some manner, means of access.
Other i
j 8
portions of this building you need to get into by opening i
9 the door.
The whole area around Hatch is like that by s
j 10 analogy and I think that it is why we need to have a nice i
11 big detailed plan that will.show us what we are doing that 4
1 12 has reasonable amount of detail of the time period.
r 13 JUDGE MARGULIES:
Why can't that be done, Mr.
14 Davis?
l 15 MR. DAVIS:
I'd be perfectly willing to see if 16 there is a larger copy available.
We were given something 17 along the lines of what I gave Mr. Clarke and it looks very i
IS detailed to us.
It shows the administration building and --
)
19 Mr. Zerr does know where he was and there at least - - or at 1
20 least will be able to to say where he was at various times.
21 I would think he could point out where he was.
We 22 can v to provide a more legible copy I can see if we 23 have larger copy available, but to the extent that Mr.
4 m
24 Clarke wants to blow it up or develop evidence through his
)
25 witness based on the plans we have, he's free to do that but t
1 i
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I certainly would be happy to see if there is a larger copy 2
available showing the protected area.
3 JUDGE MARGULIES:
What is the nature of the 1
i 4
confidential information?
P i
5*
MR. DAVIS:
Our concern there was simply that we 6
not be in the position of having to disclose plans that l
7 might be confidential.
We don't think that it's necessary 8
to get into that but we certainly know that there is much 1
i j
9 about the nuclear power plant that is confidential and d
10 sensitive.
So we were simply ensuring that we did not waive
{
11 any right to disclose such information.
]
l 12 JUDGE MARGULIES:
We wouldn't expect you to l
1 I
13 disclose information that's confidential without protective j
j 14 orders and the like but Mr. Clarke is stating at this point a
a 15 that basic information is not being provided which on its 16 face doesn't appear to involve confidentiality in terms of 17 training rooms outside the protected area.
18 MR. DAVIS:
Well, I don't believe we are under an 19 obligat en to create a new site plan that shows -- that has, 20 that adds trailers and things like that that may have been i
21 there for a period of time j
22 We believe we have provided a site plan that was 23 adecuate for Mr. Clarke to exolore.
9
)
24 I will be happy to determine or show or develop a 1
l 25 demonstrative exhibit showing where Mr. Zerr claims he spent i
j
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the hours that he worked but I will pursue whether there is 2
a better plan or a larger plan that could be made available.
3 JUDGE MARGULIES:
Is it your position that Mr 4
Zerr cannot have been performing his job outside of the 5
protected area?
6 MR. DAVIS:
It's our position that he could not i
7 have worked the hours he claimed, that he did not work the 8
hours that he claimed.
9 JUDGE MARGULIES:
That is not my question.
10 MR. DAVIS:
Outside the protected -- I'm sorry.
I i
11 am saying that he could have -- there would be periods in j
12 which he would work outside the protectored area.for periods 13 of time but the resident inspectors will testify that these 14 hours1.62037e-4 days <br />0.00389 hours <br />2.314815e-5 weeks <br />5.327e-6 months <br /> bear no resemblance to the amount of time he was
'}
i 15 required to be outside the protected area.
16 JUDGE MARGULIES:
That's a different issue, isn't 17 it?
It's a different issue.
It's whether there is work 18 that he should be reimbursed for that is outside the 19 protected area.
20 From the way the complaint reads is that all his 21 authorized work had to be within the protected area or 22 that's the way I read it and if he were performing work 23 outside the protected area, that wouldn't count towards his 24 authorized work.
25 MR. DAVIS:
We believe that he could be
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compensated for work outside the protected area but there 2
are limited -- there is a limited need to go outside the 3
protected area and the reports of interviews indicate that 4
Mr. Zerr would not have had reason to work the hours claimed 5
outside the protected area, the amount of the hours claimed.
6 JUDGE MARGULIES:
The discovery request is for 7
what functions go on inside the protected area and what 8
functions go on outside the protected area.
I think that's 9
a legitimate area of inquiry.
10 MR. DAVIS:
Yes, the site plan we provided 11 identifies 77 areas by function with numbers -- a chart on 12 the side -- 77 specific areas both inside and outside the 13 protected area.
14 JUDGE MARGULIES:
Is your problem, Mr. Clarke, 15 with the area c)tside the protected area?
16 MR. CLARKE:
Yes.
I am not particularly concerned 17 about how you run a power plant.
I wouldn't be able to tell 18 one way or another from looking at the site plan or anything 19 else, wouldn't understand it, but I am concerned that, as an 20 example, Mr. Zerr was there because he was in an intern 21 capacity supposedly doing training.
22 There is a set module of training that he's t
23 supposed to cmtry out.
The entire training function takes 24 place outside the protected area in buildings that have 25 trailers attached to them.
It seems to me like that's work.
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He's supposed to be paid to do that work.
Now he's outside 2
the protected area, This is an absolute defense.
3, 3
It seems to me we ought to be able to show that --
1 4
and I'd like to be able to show what activity one does 5
outside of that and it's hard to believe that there is this l
6 huge plant, I am assuming it's large, in Georgia at Hatch 7
for which there is only this, something which I will call 8
barely a sketch which would constitute a site plan.
l 9
I know they have drawings.
I knov they have i
10 something that will show it.
They must.
If the pipes break 11 they can't use this site plan to find anything.
You 12 wouldn't buy a house with the site plan they have given me.
13 JUDGE MARGULIES:
As I understand it, your problem i
was with the inadequacy of the plan insofar as it deals with 4
15 the area outside of the protected area?
16 MR. CLARKE:
That's correct.
If they wanted to I
l 17 shade everything inside the protected area so that I i
l 18 couldn't tell what it is and someone just said that's the l
l 19 protected area, that's fine with me.
They could write it in l
j 20 some other language -- don't put it in Greek because I can 1
l 21 read that -- but at least so I won't know what it is.
22 JUDGE MARGULIES:
Can't you come up with something i
23 more specific, Mr. Davis?
I don't see that confidentiality
/
24 or security considerations would be involved in terms of 1
i 25 what's outside of the protectored area.
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MR. DAVIS:
I will certainly endeavor to see if 2
there is something more specific.
However, I really i
i 3
s*.rongly object to the characterization of the plan that's i
4 been provided.
I don't believe it's been examined l
5 carefully.
It identifies 77 specific areas of the plant.
6 I certainly object to the characterization of Mr.
l 7
Zerr's training program as being entirely outside the 8
protected area.
As the reports of interviews made clear, i
9 most of the study occurred right at his desk inside the i
la protected area, but I will see if there is in existence a 11 more detailed plan.
I will be happy to do that and provide 12 it as soon as I can.
l k
JUDGE MARGULIES.
Why don't ycu do that, Mr.
14 Davis, and if there is any subsequent problem, you can call 15 that to my attention?
16 MR. CLARKE:
All right.
j 17 JUDGE MARGULIES:
And we can attempt to resolve I
18 it, if there is any.
l 19 MR. DAVIS:
I'd be happy to submit what we have 1
20 already given him and anything further to you as well if you 21 would prefer that, if you like that as well.
22 JUDGE MARGULIES:
Well, if no problem develops 1 23 don't need it.
It's only if a problem develops.
I will 24 await any response from Mr. Clarke and if there is a 25 problem, then I would appreciate if you would send me a l
l J
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55 i
l 1
document.
I i
2 We go to Discovery Request Number 6: " Identify and i
3 list all employees at Hatch, both local and NRC during the 1
4 relevant time of the complaint.
1 5
I know you have read the response of the NRC.
6 What is the matter with their response, Mr. Clarke?
l I
7 MR. CLARKE:
They have given me, I believe they 8
have given me a list of the NRC people who were there.
I 9
understand that to be the circumstance.
10 Obviously we are seeking -- it's clear from their 11 complaint they are saying that he was not working when he 12 says he was working and we want to have opportunity to talk 13 to people to find out whether they will testify that he was 14 working.
)
15 They have access to all of the information that we 16 don't have access to.
I do not agree with them that Georgia 17 Power s as accessible or has as much access to this le information as they do.
19 Yes, we could issue a subpoena fc kind of 20 information to Georgia Power but I would subt t
it the NRC 21 already has access to that information.
It's harr for me to 22 believe that they don't have a list of Georgia Power 23 employees who were there at that site.
24 Most of the employees who were there at that site j
25 are Georgia Power employees, not NRC.
They are saying that i
1
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they have had some opportunity to look into those employees
[
2 and find out if they are any sort of security risk I
3 The only thing we are interested in doing is j
4 finding out is there somebody there.
If we try to get this i
i f
5 information from Georgia Power, we are probably going to i
6 wind up having to go down to Georgia to litigate that kind 7
of a question.
8 Georgia Power, not being a party to this i;
t 9
proceeding, as soon as they get that they are going to say lo that's confidential information that they have and,
{
i 12 therefore, we are going to have the same problem all over r
12 agaia.
1 1
12 We are simply asking them to look in their file 14 for what they have already at their disposal and provide it
/
15 to us.
16 JUDGE MARGULIES:
What are you requesting, a list 17 of all Georgia Power employees?
i l
l 18 MR. CLARKE:
Yes.
If John Smith is on that 19 Georgia Power list, this is a person that for whatever 20 reason the respondent has not thought of that he knows is a 21 good witness for him -- I mean, there aren't very many NRC 22 employees there.
23 He needs to have access to being able to go down.
24 It's not like he has the unlimited resources the government 25 does.
He ca.
't send an investigator down to talk to every
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He can at least take a look at the last and say 3
that is the person, those are the kind of people that I saw 4
every day, I had lunch with or I talked with or I worked 5
with, those people can affirm that he was working and taking 6
his -- and doing the government's business.
7 JUDGE MARGULIES:
Are you also seeking the names 8
of contractor employees?
9 MR CLARKE:
I am not sure if I understand the i
10 entire mechanics cf how that operation at Hatch works but if 11 Georgia Power is like the NRC and all they really have is 12 half a dozen employees who supervise the work of some 13 contractors that they have, then it seems to me like those i
14 contractors are also a part of that list but I think that
)
15 it's obvious that if it's the person who is cleaning the 16 floors for Georgia Power, we are not interested in his name 17 but if the person who is sitting there maintaining the le console in front of this power plant and is a person that 19 would have had contact with Lloyd Zerr on a daily basis, I 20 think we are entitled to that perscn's name.
21 If it was ar, NRC emplov.ee they would cive it to us 22 in a heartbeat and I think the'1 have access to it and they 23
<now the names but they are simply refusing to provide it 24 and forcinc_ us to a_o to Georgia to cet this kind
^#
25 information when we are going to run into a problem.
Every
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state has a law trying to protect their employees.
2 I don't understand why they won't give us the 3
information that they have.
They have already used up 1500 4
pages worth of paper here.
We are not talking a lot more.
5 JUDGE MARGULIES:
What do you have to say'about 6
that, Mr. Davis?
7 MR. DAVIS:
First of all, we have asked Region II S
employees and the resident inspector if we have such a list 9
and we have been told we do not -- a list of all Georgia 10 Power employees who were there.
We have been told by the 11 OIG investigator that he contacted Georgia Power and 12 incuired to some extent about names of people and was told 13 that it would probably be very difficult for them to 14 generate.
15 Mr. Clarke has referred to security Perhaps 16 security has the names of people at Georgia Power with 17 security clearances.
I don't know.
Whether or not they 18 were working at Hatch at particular periods of time, I doubt 19 security has that information.
20 As Mr. Clarke said, I really think he hit it on 21 the head when he said every state has privacy laws.
That 22 really gets to the heart of it.
23 This is Georgia Power information.
This is an 24 issue which Mr. Clarke I think has to resolve with Georgia 25 Power.
We are not objecting to him trying to get that
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information from Georgia Power uI. der whatever appropriate 2
conditions may be required by that law but we believe it's 3
Georgia Power's information and he should seek it from them.
1 4
We do not believe we have the information that is responsive 5
to his request.
a 6
JUDGE MARGULIES:
Is there any type of information 7
that you would have?
You said the people at Region II say 8
they do not have all of the information?
Can they satisfy 9
part of.i t?
10 MR. DAVIS:
We do not have a list of the employees 11 at Georgia Power.
I don't believe we do.
That's what I
~
12 have been told.
I am sure they could ad hoc name an 13 employee or two but a list of all employees which Mr. Zerr 14 desires, I am told we do not have it.
15 Now, it just seems to us that to the extent we 16 might have some regulatory powers, that's not a proper use 17 of cur regulatory powers.
18 JUDGE MARGULIES:
I am not going that far.
What I 19 am inquiring along the lines is if Mr. Zerr corducted 20 inspecticns, and there are reports of inspections and they 21 show who he spoke to, would that be in the records?
?
22 MR. DAVIS:
If there were written records, I 23 presume we might be able to locate something like that.
24 JUDGE MARGULIES:
Wouldn't that satisfy you, Mr.
25 Clarke, in terms of being something reasonable in terms of
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Mr. Zerr's defense?
2 MR. CLARKE:
Well, I think that it would be a 3
major step in the right direction.
We are not looking to 4
try to be unreasonable.
J 5
he are looking to try to find out those other 6
people.
I know that Mr. Zerr knew the answer.
It was a l
)
7 surprise to me when I found out that most of the people 6
aren't NRC employees who were there, they are somebody else,
{
l 9
and that much of his contact was with people that we don't j
l 10 know about at this point.
l 11 We don't know who they are and, frankly, much of i
12 that during a reasonably brief period of time now some time l
13 ago, you deal with someone on a first name basis or i
14 something like that, you really don't know who that person
}
15 is.
And we don't have access to figure out who Sam is, who 16 John is, but I think the NRC does have access to it.
You 17 may have hit upon a reasonable way for them to come up with 18 that.
19 Under most circumstances, I am not interested and 20 Mr. Zerr certainly is not interested in the reports of any l
l 21 evaluations that he may have done or any testing or i
l 22 evaluations of any sort but they may have names of people in 23 there and I assume that kind of information is available.
24 It's not normally something we are interested in 25 but if they want to cull out the names or give us the i
)
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inferration fror which we can cull cut the names that's 2
fine.
It would at least give us an introduction to get into 3
some names of people that we don't now have.
4 JUDGE MARGULIES:
Is it something that's feasible, 5
Mr. Davi's, in terms of people who he had come into direct i.
6 contact as an employee of the NRC?
Would there be those recorcs.'
e 8
MR. DAVIS:
of course, I really can't say on the 9
spot.
We can certainly look to see if there are such 10 records.
I don't know how long it would take or whether 1
11 they would be in storage.
12 It's nossible we could come up with a few names of 13 the people that the resident inspectors typically come into 14 contact with, but I would point out that several of the 15 reports cf interviews in this case when Mr. Zerr was 16 confronted with this overtime problem are, Mr. Zerr could 17 not come up with names at that point and that was back when 18 he was still an employee, still there.
So to some extent I 19 think this is a fishing expedition.
20 MR. CLARKE:
Maybe he has at least the benefit of o_ -
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I MR. DAVIS:
I think it would be -- certainly I l
2 would be interested to know if Mr. Zerr knows of anyone.
3 He's asking us to identify who he talked to.
It's kind of 4
difficult.
We could come up with a list of potential 5
candidates, I guess.
6 JUDGE KARGULIES:
I recognize that it is difficult 7
but the whole discovery process is difficult.
It seems that 8
the e might be a reasonable connection.
)
9 MR. DAVIS:
It would be helpful if Mr. Zerr could l
10 give us a list of what he worked on and who he is aware of i
11 and we could try to supplement with the names of people that 12 he may be aware of who he was in contact at that time but 13 again it may depend upon a search of records.
14 MR. CLARKE:
The difficulty there is that when Mr.
15 Zerr arrived on site the resident inspector was either 16 retired or transferred.
17 The next-in-line resident inspector who was going 18 to take over on an interim basis went on military leave for 19 a period of time and so that left fresh off the airplane 20 Lloyd Zerr as the resident inspector and he was there as an 21 intern.
22 For the first month he was there, he didn't have 23 the faintest idea who he talked to.
It's hard for him to be 24 the one who is the source of this.
If there is a piece of 25 paper around that has Inspection Report Number 2 and has
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Zerr's name on it and has John Smith's name on it, all we 2
are looking for is John Smith's name, not even the 3
inspection report.
4 MR. SHAPIRO:
I think what we are suggesting, our 5
understanding of this intern program is primarily qualifying 6
to take his oral boards as a resident inspector.
7 If Mr. Zerr would tell us what documents he might 8
have prepared, what inspections he might have been on, what 9
materials he prepared that his name would be on and others 10 would be on, we then could trace them down but at this point 11 we are looking at the whole universe of documents relating 12 to the Hatch plan, what Mr. Zerr did or did not have any 13 participation in.
It doesn't seem to be a doable task.
14 I think if Mr. Zerr could identify areas or times 15 or reports we certainly could trace them down.
16 JUDGE MARGULIES:
Is there any problem with that?
17 MR. CLARKE:
Well, what I just -- there were three 18 resident inspectors there.
Two were gone.
The only one on 19 site was Lloyd Zerr.
20 So I think any inspection that took place is done 21 by Lloyd Zerr.
If you want to narrow down the time period, 22 for the first six weeks that he was there there was nobody 23 else except for him.
24 JUDGE MARGULIES:
Is that first six weeks a 25 problem area within the time frame of the complaint?
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1 MR. CLARKE:
Yes.
We are on.,
interested in the 2
time period of the overtime.
I think that's the only time 3
that we are looking at.
l l
4 MR. DAVIS:
I don't believe that's accurate.
I i
1
)
l 5
think Mr. Manning was there until April 20, at least our 6
understanding he was there until April 20.
Mr. Zerr, I 7
believe, arrived April 2.
Mr. Musser -- Mr. Manning was the
.i l
8 senior resident inspector when he arrived.
9 Mr. Musser was a resident inspector and went on lo military leave for two weeks, I think maybe the 13th to the 11 27th, but then I believe he was there.
12 We also believe that two other resident inspectors 13 served temporary time there during the period of that 4
14 absence and we have identified those.
We do not believe he 15 was ever there alone.
i 16 MR. CLARKE:
We are not talking about the whole 17 universe of the time that he was there at Hatch.
We are i
18 only talking about the time period -- this is only relevant I
19 on the overtime issues.
It's not relevant on the other 4
20 issues in this complaint and that's a very limited time.
21 They have limited it in their complaint to a certain I think 22 several pay periods.
That seems like it's pretty time i
1 23 specific.
24 JUDGE MARGULIES:
Does that help any?
25 MR. DAVIS:
It may help as to dates.
Again, we
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are going under this cold in terms of, as Mr. Shapiro says, 2
in terms of knowing the location of documents and that sort 3
of thing there.
4 How discoverable, how burdensome, we really don't 5
know at this point.
t 6
MR. SHAPIRO:
Your Honor, what would be helpful 7
would be if Mr. Zerr would identify a specific inspection 8
that he recalls or a specific training session with Georgia 9
Power employees.
10 MR. DAVIS:
I assume he's primarily interested in, i
11 only interested, I don't know, outside the protected area.
12 Am I correct about that?
i 13 MR. CLARKE:
No.
I think that in the course of j
i l
14 doing an inspection obviously, presumably one does the 1
l 15 inspection inside a protected area but they may have l
16 questions of people you may have to talk to outside the 17 protected area, especially if the administration building is 18 outside the protected area.
19 If you need to talk to someone in administration 20 you can do it by telephone or you could do it face to face 21 and if you do it face to face you are now outside the 22 protected area.
23 JUDGE MARGULIES:
Let's nail down the time period 24 that we are talking about.
25 MR. CLARKE:
Only the time period in the period of
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the complaint dealing w:th overtime, only that.
2 i
l 2
MR. SHAPIRO:
That would be pay periods 9, 10 and 3
11.
4 JUDGE MARGULIES:
We will set that aside as to how 5
we will work with it as to whether it would be appropriate 6
to report back in terms of what you could come up with and 7
go on from there rather than set it down for very specific 8
findings on that discovery request.
9 MR. SRAPIRO:
You want us to look for documents 10 that would identify people Mr. Zerr dealt with during the 11 relevant time period?
12 JUDGE MARGULIES:
That is correct.
13 MR. SHAPIRO:
Okay.
14 JUDGE MARGULIES:
If at the time of reporting back 15 you want to make an argument on that that it's burdensome, 16 then you can do that at that time.
17 Let's move on to Discovery Request Number 7.
18
" Identify each supervisor and the chain of command for each 19 superviscr during the career of Lloyd Zerr at the NRC."
l l
20 My understanding is the NRC is making that 21 information available to you.
Do you have any problem with 22 that?
23 MR. CLARKE:
I think we are fine on that.
They 24 reserved the right to come up with an objection of some sort 23 if they have a problem, if they can't find somebody or
)
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something like that.
We are not having a problem.
2 MR. DAVIS:
We understand that we provided the 3
general supervision.
There may be more detailed week to 4
week, you know, for temporary assignments -- we might be 5
able to come up with more.
It's a complicated task to come 6
up with day to day supervision.
7 JUDGE MARGULIES:
Are you satisfied that they have 8
provided the information you want?
9 MR. CLARKE:
I am satisfied they have and I am 10 also satisfied that if there is some particular time period 11 that I would suggest there is a different name of someone 12 else, I am sure that counsel could get that for us.
I don't 13 have a problem with Discovery Number 7.
14 JUDGE MARGULIES:
This is Discovery Request Number 15 12.
" Identify and attach copies of each statement made by 16 Lloyd Zerr to any agent or official of the United States 17 Government in connection with this matter."
18 Is there any problem at this point in terms of 19 what they have turned over to you, Mr. Clarke?
20 MR. CLARKE:
Well, yes, there is a problem.
I 22 would say that I have received today a letter which had 22 previously not been provided and that is a letter dated July 23 11, 1991 and I think that goes to a decision made by the 24 United States Attorney for the District of Maryland with 25 respect to the case and provides all of the information that
)
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t 71 Mr Clarke talks about a meeting.
Mr Zerr's counsel was 1
l 2
there at the meeting with the United States Attorney.
[
3 Mr. Clarke talks about a conversation with Mr.
i 4
Fields who is in the hearing room today, this week, but that 5
conversation consisted of Mr. Fields as I understand it 6
telling Mr. Zerr that I want to confirm that a check has 7
been sent to you reconciling your travel, period.
8 I mean, we are not hiding anything and we have 9
gone overboard, I believe, practically, in giving Mr. Clarke 10 access to everything that Mr. Fields has.
1 11 I don't see any basis at all for anything that's l
J2 been -- any problem here with our production.
i i
13 JUDGE MARGULIES:
Is it your representation that j
14 you have given everything that the NRC has?
15 MR. DAVIS:
Everything that we know of that the l
16 Assistant United States Attorney was supplied I think by us 17 as to the investigation.
18 JUDGE MARGULIES:
It seems to me, Mr. Clarke, that 19 you are looking for the process that the United States 20 Attorney followed in coming to the conclusions he did in 21 regard to the criminal prosecution which is a matter l
22 separate and apart from this proceeding and as stated in the l
1 23 pleadings of the Nuclear Regulatory Commission they do not 24 have custody over his documents and papers.
It involves a 25 separate entity It's the Department of Justice and the
)
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70 1
I think it's sort of basic that we would like to J
l 2
know what my client is accused to have said or alleged to 3
have said in the course of this matter.
If he made an i
4 admission we would like to know about it now rather than 5
hearing about it in the middle of trial.
That's all we have i
6 asked for.
I 7
JUDGE MARGULIES:
What have you already supplied, 8
Mr. Davis?
9 MR. DAVIS:
Your Honor, we have supplied the 10 entire investigative file of Mr. Fields which was.the 11 investigative report and exhibits which is what was provided
[
12 to the United States Attorney as I understand it.
I assume i
13 that's part of the information that the United States 14 Attorney had.
15 It sounds like Mr. Clarke is really wanting the
)
16 work product, mental impressions of the Assistant United 17 States Attorney as to why there was a pretrial diversion.
l 18 I don't know exactly why but -- why it was handled 19 in that manner?
Supervision was a part of it and there was l
l l
l 20 a restitution part and apparently an Assistant United States that that would satisfy him under the l
21 Attorney felt i
22 indictment.
23 What the Assistant United States Attorney thought 24 of the case is not -- I don't see that it's even relevant.
25 Certainly it's protected to the extent that he had anything.
l
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entitled to that kind of information and I think that the 2
Government of the United States has already made some 3
decisions in Georgia.
We just want to know why.
4 JUDGE MARGULIES:
We have to be more specific.
We 5
can't speak in terms of the Government of the United States.
6 We have to speak in terms of individual agencies of the 7
Government of the United States and your discovery request 8
is directed against the Nuclear Regulatory Commission.
9 MR. CLARKE:
I would suggest that the Nuclear 10 Regulatory Commission has information.
If they don't have 11 it in their files, they have the ability to find out through 12
-- Ron Fields is the investigator who has worked on this 13 matter for the NRC and who has responded to them on 14 everything that has come up and who shopped this case around 15 to two different prosecutors' office and went to Georgia.
16 This is a person who has all this information in hand.
If 17 it is not in hand on paper it's in his head and should be 18 there.
19 This is information which contains the statements 20 made by Lloyd Zerr because he talked to them, he's talked to 21 Ron Fields this week, last week, he's talked to him in l
22 connection with a meeting in Georgia.
23 The United States Attorney at a meeting in Georgia 24 on a NRC case that was sent to them by the NRC talked to 25 Lloyd Zerr.
I'd like to know what was said.
)
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1 would have wished to have with respect to that aspect of 2
this request.
3 JUDGE MARGULIES:
That satisfies everything in 4
regard to the District of Maryland?
5 MR. CLARKE:
With respect to the issue of the why 6
was -- one of my problems was that, you know, where I 7
suggested that the United States Attorney for the District 1
4 8
of Maryland made a decision to not prosecute the case.
We 9
wanted to know why.
We now know why.
That's not a problem 10 any more, 11 There is, however, a problem with respect to the t
12 United States Attorney for the Southern District of Georgia.
13 We have conclusary information from that 14 individual to the effect that that person has said they are 15 not going to prosecute any longer.
We have a conclusion 16 from that person who says that they are going to willingly l
l 17 put Mr. Zerr into a diversion program.
But we don't have 18 the information upon which that representative of the United 19 States Government came to that conclusion.
20 If he came to that conclusion on the basis that, 21 cf the five counts in the indictment they -- they couldn't 22 prove four of them and one of them they would have a rough 23 time at trial on and the defendant came to the conclusion 24 that I am going to do pretrial diversion because it's better l
25 than taking a shot at jail, it seems to me like we should be l
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92 1
United States Attorney's office that falls within the 2
Department of Justice.
3 To the extent that whatever they have they have 4
turned over to you, I don't see what more can be expected of 5
them.
6 MR. CLARKE:
I don't want to belabor the point.
7 With respect to precisely the meeting that took place in B
Georgia with the Assistant U.S.
Attorney, the investigator 9
in the matter, Mr. Zerr and Grace Lane who was his counsel 10 in Georgia, Your Honor, when that meeting took place 11 presumably, and I know for a fact -- on information and 12 belief I can suggest to you that Mr. Zerr made some comments 13 and I would suggest to you further that as a result of those 14 comments it sounds like, based on counsel's representation,
)
15 they are sending him money.
16 Therefore, it would seem to me like someone has 17 come to a conclusion that says oh, my goodness, we made a 18 mistake in that calculation.
19 If someone came to that conclusion based on Lloyd 20 Zerr's statement, I would like to know what Lloyd Zerr said 21 that was so good because I want to use it again in the 22 course of defending this matter.
23 It would seem to me like we should be able to have 24 those statements.
We are only asking for the statements 25 made by my client to Government agents in their presence.
')
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4 73 i
1 l;
1 MR. DAVIS:
His client made the statement and i
2 should know what he said.
If Mr. Fields had a copy of those 1
i i
3 notes, they have been provided.
Mr. Zerr was there, Mr.
1 a
4 Zerr's counsel was there, and anything that the Assistant 5
United States Attorney may have written down is not within 1
6 our control.
i 1
7 We have given him copies of all written statements 1
8 we are aware of that Mr. Zerr has made to us or to the i
9 United States Government in our possession and that's what 10 the request asked for.
11 MR. CLARKE:
I understand counsel has just said 12 they have given me copies of every written statement that 13 t, hey have that was made.
That's fine.
I am happy to accept i
14 that representation because it was made by counsel.
)
i 15 However, there may be, and I assume that they have 16 also included within that statement the notes made by their i
i 17 investigator of conversations had with Mr. Zerr.
If I could
]
18 get that clarification --
l 19 MR. DAVIS:
Yes.
That's why Mr. Clarke has -- we 20 have copied Mr. Fields' file essentially for Mr. Clarke.
He i
21 has copies of Mr. Fields' notes.
We are not aware of 22 anything further.
23 JUDGE MARGULIES:
It appears to me that the NRC 24 has done all that it is required to do, Mr. Clarke, and if 25 it's something you want to proceed against in terms of the i
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74 1
United States Attorney, there are discovery procedures that 2
you can undergo but I can see that the NRC, what they have 3
represented here today, they have fully complied.
4 JUDGE MARGULIES:
Why don't we take a ten minute 5
recess at this time or if you want to make it 15 minutes and 6
take a look at that document?
7 MR. CLARKE:
I can read it.
8 JUDGE MARGULIES:
Let's take a 15 minute recess.
9
[ Recess.)
10 JUDGE MARGULIES:
Discovery request number 15:
11
" Notice is hereby given that all government witnesses may be 12 interviewed by counsel at a time to be scheduled."
13 It would appear to me that the discovery process 14 does not provide for the type of interviewing that you want
)
15 to do, Mr. Clarke.
16 MR. CLARKE:
That's correct.
17 JUDGE MARGULIES:
To that extent, it's a matter of l
18 negotiation.
19 MR. CLARKE:
I think that when we met consistent i
20 with the earlier order when we met to discuss discovery, 21 Your Honor, we discussed the question of interviews of 22 witnesses and it was my understanding that we were going to 23 be scheduling interviews and so my discovery request was not 24 to say here is who I want to interview, since I had just 25 been the recipient not that long before of all of their i
)
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pages of material but I simply gave notice that I wanted to a
2 interview all of them and then I find out tha. -- I thouaht 3
my statement was going to be rather innocuous, but 4
apparently it wasn't considered that way by the NRC.
Now 5
they are saying you can't interview anybody until after 6
there is a deposition.
7 That's really the crux of my problem with this.
t 8
Why can't I interview Ron Fields sitting here in this 9
hearing room if he will talk to me?
He can say he chooses 10 not to talk.
He can say he chooses to talk only if the NRC 11 attorneys are present.
However, I should at least have the 22 opportunity to go to him.
I don't see anything in any of 13 the rules that says that it's conditioned upon Mr. Zerr 14 having a deposition.
They are the ones who threw that idea
'5 in.
16 JUDGE MARGULIES:
Let's set the matter of the 17 deposition aside.
Is there any problem with Mr. Clarke 18 interviewing the prospective witnesses with counsel present?
19 MR. DAVIS:
We have agreed to that on the 20 condition that we be permitted to depose Mr. Zerr.
We don't 21 care whether it's before or after the interviews of our 22 witnesses.
We voluntarily do agree to permit interviews 23 even though we could probably insist cn depositions, but a 24 condition of that is that we be present.
25 We do believe that there should be some
)
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76 1
reciprocity, discovery.
If Mr. Clarke wants to schedule 2
depositions, deposit:cns of key witnesses, we probably 3
wouldn't object to that either.
4 We thought this was a benefit to permit 5
interviews, but with counsel present.
We don't think we 6
should be penaliced by voluntarily agreeing to interviews in 7
the exclusion of counsel.
6 We do see some connection and we do believe it's a 9
voluntary matter as to informal interviews.
10 Ne do believe there should be some reciprocity and 11 in light of the difficulty, not only do we think we want the 12 depositions, but in light of the difficulties we have had 13 with all our discovery, that's simply even more of a reason 14 why we believe there should be some reciprocity as to the ej j
15 deposition, but even apart from that, this agreement to 16 permit interviews is voluntarily and I think it's pretty l
17 much a moot point anyway.
18 I imagine most NRC interviewees would prefer i
19 counsel present but that is one of our conditions, that we 20 be -cresent, and we thought that was understood, i
21 MR. CLARKE:
As I understand the NRC position in 22 this matter, putting the question of linking the two things, 23 the interview and the deposition concept aside, that they 24 want to be present, so be it.
25 The two options that we had was to try to reach an
}
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1 are going to go the informal route here, we are not going to 2
have reliable transcripts, disagreements about what was d
3 said, the attorneys will become witnesses.
If we are going I
to have a neutral third party there it should be a court i
4 i
5 reporter.
+
6 We don't mind Mr. Clarke utilizing this tool to j
7 find out what he believes the witnesses know and that sort 8
of thing to see if there is something new that he wants to
[
explore with them and ask them the same at trial or hearing 9
l t
10 or whatever and presumably they will testify honestly but it 11 strikes us that we are agreeing to this in part, you know, 12 recognizing that depositions are costly and in the interest 13 of fairness, but, you know, we think it's also fair, if this r
14 is something to be preserved for hearing, that it should be
[
)
15 transcribed, it should be a deposition.
16 JUDGE MARGULIES:
What is your position on that?
17 MR. CLARKE:
I am not interested in preserving i
,i this information for the purposes of a hearing suggesting 18 19 it's going to be used during the respondent's case, but it 20 would seem to me if there is going to be an interview with 21 the person and if the person said I saw Lloyd Zerr working J
22 15 hours1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br /> that day, I remember it distinctly because of XYZ I
23 fact, if that person tells me that during an interview and any of their counsel wants to be present and if that persca 24 25 says something different in a hearing I certainly have the 2
't l
)
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a right to ask them didn't you say during an interview with me 2
on a certain day that he worked for 15 hours1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br /> straight?
q 4
3 They may deny having said that during the 4
interview and if I don't have a third party there, my cross 5
examination fails ior being able to support it as 4
4 6
substantive evidence.
]
l 7
However, I don't think there is a limitation on me
]
8 being able to ask that question.
Subject to that -- that's 9
the rules of evidence.
Short of that, I don't think there 10 is a problem.
i 11 JUDGE MARGULIES:
It's not your intention to 1
12 become a witness in this case?
i 13 MR. CLARKE:
Absolutely not.
It would be my 14 intention to ask a question didn't you say on such and such
)
i 15 a day.
i 16 JUDGE MARGULIES:
Do you have any problem with i
17 that?
l 18 MR. DAVIS:
If the witness denies it or qualifies j
19 it, Mr. Clarke recognizes there is not going to be a 20 reliable rebuttal to that statement.
1 21 MR. CLARKE:
That's correct.
I do not at this 4
72 point intend to take those interviews.
I would not tape 1
23 them.
I don +t do that.
Secondly, I could take the 24 interview with the presence of a paralegal in my office, as
{
i 25 an example.
However, that's not my current plan.
)
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If, in fact, I did with a paralegal then the I
2 paralegal would be in a position to testify to that kind of 3
information subject to your ruling on whether that's too far 4
collateral.
5 JUDGE MARGULIES:
Now you are introducing another 6
element.
What is your position as to that?
7 MR. DAVIS:
My position is that :. we are going to 8
have third party corroboration it should be a court 9
reporter.
10 JUDGE MARGULIES:
That doesn't seem unreasonable 11 to me.
In effect I am acting as a mediator here.
12 What both of you are proposing is outside the 13 discovery and to me it would appear that you are raising a 14 totally new element in terms of a third party witness and 15 whether that's acceptable to the complainant in terms of 16 going forward with that type of interview, that's up to 17 them.
18 MR. CLARKE:
I'd waive the presence of a third 19 party.
20 MR. DAVIS:
Perhaps we are resolved.
21 JUDGE MARGULIES:
It appears that Discovery 22 Recuest Number 16, provide all documentation, identify the 23 U.S. Attorney in Maryland involved in the decision not to 24 prosecute, that has been resolved, is that not correct?
25 MR. CLARKE:
We have information from the United
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States Attorney for the District of Maryland that was dated i
4 i
l 2
July 11, 1991.
I think that information has been resolved.
i 3
It had previously been specifically excluded, which was the 4
reason why it was specifically included in the discovery 5
request.
6 JUDGE MARGULIES:
That completes Zerr's motion for 7
discovery except as to those matters that we set aside, 1
8 Number 5 and Number 6, as to how we would proceed with that j
9 and as to the requirement to have Zerr deposed which we will i
10 now take up in terms of NRC motion for deposition of I
11 defendant Llovd Zerr and NRC motion for discovery by i
12 interrogatories, request for admissions and production of 13 documents.
14 Mr. Clarke, since you have filed your supplement,
)
15 you have been supplied with supplemental information by the 16 NRC.
Does that change your position in any way?
q 17 MR. CLARKE:
Yes and no, if I may.
With respect 18 to the information provided, they have provided to me, and 19 this is the document which I received last evening at 5:30, 20 they have provided to me a letter dated June 30, 1993 from 21 the United States Attorney, Assistant U.S. Attorney for the f
22 Southern District of Georgia saying that that office 23 believes that Mr Zerr has now fulfilled the terms of the 24 agreement.
No further prosecution will be forthcoming in 25 this district for the crimes covered by the agreement.
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That seems reasonably conclusive with respect to 2
that issue.
The difficulty is that the indictment or the 3
agreement which concerns the indictment covers must, but not 4
all, of the subject matter of this inquiry and that's the 5
difficulty.
l 6
Those things that are not covered by the 7
indictment are, therefore, not covered by the diversion 8
agreement.
Those things not covered by the diversion 9
agreement are still fair game for the U.S.
Attorney in 10 Georgia.
11 JUDGE MARGULIES:
Could you point out what it 12 doesn't cover?
l 13 MF
?.LARKE :
Well, the counts in indictments, 4 14 and 5 -- sorry -- 3, 4 and 5, all deal with questions of the f
-)
i 15 overtime which overlap with the indictment -- with the 16 complaint here with respect to the overtime issues and they I
17 are, in fact, the same time periods as the overtime issues l
18 here.
So it would appear that they are not going to be I
\\
19 prosecuting him in Georgia on the question of overtime.
20 The first and second counts are sort of 1
)
21 catch-all's with respect to this indictment and they do not i
l 22 cover the same broad time period that the complaint in this 23 case does.
24 The indictment covers a shorter time period than 25 the issues before you with respect to the complaint and,
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therefore, any deposition that goes beyond the scope of i
l 2
those issues that are raised in that matter is, therefore, 1
l 3
outside of the agreement from the United States Attorney not i
i f
i i
4 to crosecute.
{
5 JUDGE MARGULIES:
Would it be possible to identify I
i 6
those counts?
i 7
MR. CLARKE:
Yes.
The counts that are in the s
i 1
I 8
comulaint are over a number of dates.
The counts in the --
9 MR. SHAPIRO:
Your Honor, I may be able to save l
10 time.
l 11 MR. CLARKE:
I can only tell you that I know that 12 the counts in this indictment deal with two months.
The 13 counts in the complaint deal with a large number of months.
1 14 MR. SHAPIRO:
The U.S.
Attorney for the Southern I
15 District of Georgia and the District of Maryland have no J
16 intention to prosecute Mr. Zerr for anything related to
)
17 these counts.
18 If counsel needs a broader waiver of prosecution
- i 19 to cover the exact time periods and elements of the a
1 l
20 complaint, we can get that.
4
\\
21 JUDGE MARGULIES:
That would appear to do it, I
a 22 wculdn't it, Mr. Clarke?
I 4
23 MR. CLARKE:
Yes.
They haven't done it yet.
I am a
24 saying that I know that they said they can but I also know 4,
i 25 that the United States Attorney could have said more but a
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chose not to.
If they are going to give the same letter u
2 that they did before but then if they would broaden it to
)
i l
3 the entire area that is involved in the complaint here, then i
l l
4 I think that we no longer have an issue.
l i
5 MR. SHAPIRO:
I don't think it's fair to say the 6
Assistant U.S.
Attorney in Georgia who wrote that letter i
i 7
intended to limit it in any way.
We will get a broader i
8 letter that will cover every detail of the complaint and it t
i 1
9 will be a non-issue.
1 i
d 10 MR. CLARKE:
I just want to make sure that Mr.
s 11 Zerr is protected.
)
12 JUDGE MARGULIES:
As counsel for Mr. Zerr, that's I
j 13 your responsibility and it's certainly understandable.
1 14 MR. CLARKE:
The letter from the -- what was the 15 date of the letter from the U.S.
Attorney?
a 16
[ Pause.)
1 I
3 17 MR. CLARKE:
The letter dated July 1, 1993 from
)
l 18 the United States Attorney for the District of Maryland i
19 would appear to be a blanket statement by that office that 1
j 20 since they had referred the prosecution elsewhere and that 1
l 21 they had declined prosecution, they waive any future
?
J 22 prosecution of Mr. Zerr for the acts that were cresented.
I l
i 23 would accept the representations from Mr. Jordan, U.S.
24 Attorney, Mr. Hammill, the Assistant U.S. Attorney and I
25 counsel for the NRC that we are talking about the same l
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subject matter and, therefore, that representation indicates 2
that there is no future prosecution in the State of Maryland 3
or in the District of Maryland.
4 MR. SHAPIRO:
I agree.
Let me also add, if I may, 5
Your Honor, according to Rule 18, Federal Rules of Criminal 6
Procedure, those are the only two districts that prosecution 7
may be had.
8 JUDGE MARGULIES:
What does that do, Mr. Clarke, 9
to your claim of privilege against the discovery because of 10 self-incrimination under the Fifth Amendment to the 11 Constitution?
12 MR. CLARKE:
Well, I think that the possibility of 13 not being able to be prosecuted would eliminate, overcome 14 the constitutional privilege that he has with respect to the
-)
15 taking of the deposition.
16 I think that they have now indicated that there is 17 going to be a decline of any possible prosecution in both of 18 the subject matter jurisdictions.
19 I would say I do agree with counsel for the NRC 20 that I think the only two subject matter jurisdictions are 21 Meryland and Georgia.
22 JUDGE MARGULIES:
What other objections do you 23 have to taking a deposition, Mr. Clarke?
24 MR. CLARKE:
Well, the other objections with 25 respect to the deposition are that, first of all, they have
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had innumerable times already to talk to Lloyd Zerr and that
)
2 there is no reason that they should continue to take his i
3 deposition or now take his deposition which is simply yet 4
again another interview in this particular case.
f i
5 They already have all of that information, and we E
think it is unnecessary.
I think that they have -- and the j
i 7
rules make it discretionary as I read the rules in this j
8 proceeding.
Therefore, we would appeal to your discretion 9
with regard to that.
t P
4 10 I would submit that if, in fact, the 1
11 constitutional problem is overcome that the request by, 12 valid request for admissions in the course of what the NRC 13 has said, subject to another objection which we have to i
14 those, assuming we could overcome that other objection, I
-)/
15 think we could answer a lot of those questions and if we 16 answered those questions I am not sure they need a 17 deposition.
18 We are simply wasting a lot of time and money if 19 we are going to do all of that.
I would submit that we are i
20 very happy to answer the request for admissions at this 21 point if they would ask proper questions but we do not have 22 a problem with answering the questions now that the i
23 constitutional issue has been overcome.
24 JUDGE MARGULIES:
Is that the only constitutional 25 issue you cee?
You did raise the matter of enreasonable l
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search and seizure but you didn't present any authority for 2
your claim.
i 3
M R..
CLARKE:
I raised the question of the 4
constitutional provision on the Fourth Amendment on 5
unreasonable searches and seizures in the course of the fact 6
that the NRC was trying to ask for any documentation that 7
existed that's interrelated to the Fifth Amencment privilege J
6 and I think the Fifth Amendment privilege appears to have l
9 been overcome in this matter and if it is, then in that case i
10 I think that takes with it the Fourth Amendment privilege.
11 The authority I would have for the linkage between the two 12 is the 1973 Supreme Court case of Andrayson versus Maryland 13 but I don't think it's a constitutional issue at this time.
14 JUDGE MARGULIES:
Shall we move over to the matter
)
a 15 of the admissions?
16 MR. SEAPIRO:
Have we resolved the issue of f
17 depositions Your Honor?
Are we entitled by your order to I
15 take the defendant's deposition?
I 19 JUDGE MARGULIES:
Before making a decision on i
1 20 that, I would like you to respond on Mr. Clarke's statement 21 that you have already interviewed Mr. Zerr on-numerous I
22 occasions.
I U
23 MR. SHAPIRO:
Mr. Clarke is correct that the
)
1 l
i 24 Insrector General investicator on the case did interview Mr.
25 Zerr twice.
1 4
(
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89 the fact, I think they can draw an inference that Mr. Fields 2
who was present witn Terry Lloyd, the Assistant U.S.
I Attorney in the Southern District of Georgia, obviously 4
there was something said, and some decision that was made in j
5 the course of that determination to come to a conclusion not 6
to go forward on that case and it concerns this same subject 7
matter.
8 Therefore, to suggest that they have never talked 9
about it, never found out about it is not accurate.
Someone
(_
10 has found out about it.
If it's not Mr. Fields, then some 11 other agent of the United States has found out about it.
i 12 I think they have had those opportunities and I 13 think it is absolutely unnecessary for them to find out any 14 of those things.
They will get all of that if they would 15 narrow their questions down with respect to the issue of the 16 request for admissions.
They will have all of that 17 information in ultimate detail.
The only difficulty that le the) want is to simply essentiall., badger Lloyd Zerr and 19 that's not what the purposes of all this.
20 They will have a hearing.
At that hearing they
. "3 21 can ask him all the questicns they want.
T t
22 MR SHAPIRO:
Your Honor, we don't intend to i
w 22 badger Mr. Zerr.
We have an absolute right in normal 7.
24 disccvery to depose a defendant and find out what his
%..9.
25 defenses will be We have yet to do that.
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1 Counsel may be correct when we get responses to j
]
2 our request for admissions it may shorten or eliminate some f
3 needs we have in deposing Mr Zerr but I doubt it would i
f 4
eliminate the need in total.
I j
5 JUDGE MARGULIES:
We shouldn't be involved in 6
overkill and to over-try the case.
j 7
I would assume if you get responses to i
8 interrogatories and requests for admissions you are not 1
i j
9 going to go through the same material in a deposition.
i 10 MR. SHAPIRO:
Absolutely not.
I assume and J
1 1
11 predict that the deposition will cover areas that we still 2
12 need to explore that weren't responded to in the other l
j 13 discovery requests.
i 4
1 j
14 JUDGE MARGULIES:
These processes should look to 1
j 15 be supplemental to one another, not to start out from ground 16 zero in each one and duplicate what has been requested of 27 the deponent.
i 18 MR. SHAPIRO:
I think that's cur intent, Your i
d 19 Honor, to build one upon the other.
4 j
20 JUDGE MARGULIES:
Based on what I have heard here I'
21 and on the papers, it would not be unreasonable to depose s
22 Mr. Zerr and I will grant that motion.
h 3
Now we have the matter of your request for i
[
4 admissions.
Mr. Clarke contends that the requent is 1
25 improper and to the extent you want to argue it, Mr. Clarke, 6
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1 you may do so.
2 MR. CLARKE:
Thank you.
I think that in using the 3
example of the question that I gave in my most recent 4
submission on this, which was the supplemental which was 5
filed last week, the Question 75 which they asked made 6
reference to a particular travel voucher dated on a certain 7
day "Contains false claims" and then goes on with some 1
8 detail.
9 I would be happy to answer the question if they 10 take out the word " false."
That's the problem with all of 11 these requests that they have made.
It is throughout every l
12 single one of the ones that we have mentioned is that they 13 simply say this is false, this is fictitious, this is 14 fraudulent.
15 If they take those phrases out, we will answer the 16 questions.
With those phrases in we will deny those 17 questions and we will be here forever with respect to this 18 matter.
I think that's the problem.
19 This is not a legal conclusion that is the subject 20 matter of request for admissions.
21 I saw what they have written about all this and 22 they are trying to say that the rules -- and I have read the 23 federal rules on this as well -- that the rules say that you 24 can have an cpinion as to mixed questions of law and fact, 25 but my suggestion to you is that that's like asking this
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person is this a business record.
Is it a business record?
2 It's a record, yes.
Is it a record kept in the ordinary I
3 course of business?
Yes.
Moving right on, then it's a 4
business record.
That's fine.
That's an evidentiary issue 5
that has to do with whether something is going to be 6
admissible or not.
Real simple for a stipulation and you 7
get right down to whether you have to fight about it.
8 In this whole case, it has tc do with whether 9
these items were false, fictitious or fraudulent.
If they 10 take those phrases out of their request for admissions I 11 can't think of any of them that we are not going to answer 12 but with those phrases in there, the answers are going to be 13 denials because they have not phrased the question properly.
14 They have asked for questions of ultimate decision 15 that you have to make in this case in your findings of fact, 16 not what they have to get out of these admissions and we 17 think they are wrong, they are wrong under the rules, they 18 are wrong under the law and, therefore, if they simply would j
19 amend them or if they would agree today that I could simply 20 delete from the previous submission those words, I will 21 answer them.
22 JUDGE MARGULIES:
- Counsel, 23 MR. SHAPIRO:
Counsel is no longer saying that 24 only abstract propositions of law are objectionable.
I 25 agree.
Mixed questions of law and fact related to i
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4 93 i
4 admissions are admissions or are croper request for I
I 2
admissions.
i
]
3 The word false, or knew or reason to know, have a i
4 legal meaning.
They also have a factual meaning.
l 5
What we are asking for, as an example, were claims t
i 6
that the defendant rented furniture that he didn't have i
/
false, inaccurate, you could define the word " false" however 8
you want, were they misrepresentations of what in fact was 3
9 true?
That's a factual question as well as a legal question 10 and that's the response we are asking for.
11 JUDGE MARGULIES:
It's your position that you will 12 not accept Mr. Clarke's proposed stipulation on the request a
13 for admission?
4 1
14 MR. SHAPIRO:
No.
I 15 JUDGE MARGULIES:
Based on NRC's Supplemental 16 Motion To Object To The Respondent's Supplemental Motion.To 17 Object To NRC Discovery, I am convinced that the questions 18 are proper under the Federal Rules.
At this stage of the 4
19 proceeding that's all I am passing upon, is whether they are 20 proper and to that extent I do rule that they are proper and 1
21 that they should be responded to by Mr. Zerr.
22 I certainly don't go into as to how they should be 23 responded to.
That's up to wnat the question is and how Mr.
24 Zerr is going to respond, but the questions themselves per 25 se are in accordance with the Federal Rules of practice.
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Does that leave anything further?
2 MR. SHAPIRO:
We have the interrogatories and i
3 production of documents.
i 4
MR. CLARKE:
Our objection with-respect to the 5
interrogatories and the production of documents is that we 6
had a constitutional objection which I would submit has been 7
overcome and that there is, furthermore -- it calls for 8
information which we do not have access to.
We may wind up 9
having to give minimal answers to some of these questions 10 and may be supplemented if they give us some information.
11 They have asked "who are your witnesses?"
We have 12 also said "Who are the people at Georgia Power who were 13 there?"
If they give us that information we may have some 14 answers to give.
We are dependent on their answers to some 15 extent.
I 16 MR. SHAPIRO:
We obviously know what we already 17 know.
The questions go to what does the defendant know that 18 we don't?
What pecple can you identify to support your 19 claims of working certain hcurs?
What documents can you 20 identify that we don't already have?
In essence, we are 21 asking for their exculpatory evidence, not ours.
22 JUDGE MARGULIES:
Mr. Clarke, your client can't be 23 expected to furnish information that he doesn't have and if 24 the question is such that he doesn't have the information, 25 he can just respond by saying I don't have the information
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1 or the necessary informat ion.
2 MR. CLARKE:
I understand that that is a likely 3
response that we will have to make now that the I
4 constitutional issue has been resolved.
5 JUDGE MARGULIES:
Based on the filings and what I 6
have heard here today I am also granting the request for 7
interrogatories and for the production of documents.
8 Once again, I_want to caution the parties that 9
this is not to result in overkill and it may be helpful if 10 the parties would get together and try to work these things 11 out.
12 Let's get back to 15 now in Mr. Zerr's Motion in 13 terms of interviews.
Now that it has been ruled upon that 14 Mr. Zerr will be deposed, that should remove that problem 15 from going ahead with the matter of interviews, isn't that 16 correct?
17 MR. DAVIS.
As far as we understand, it is.
We 18 also raised the question about expense.
We don't think the 19 NRC is responsible for telephone call charges and that sort 20 of thing.
We think the rules clearly -- that's just 21 absolutely a matter of regulations themselves and would be 22 contrary to practice generally anyway and I assume that all 23 the issues we have discussed today I believe are resolved.
j 24 MR. CLARKE:
I think they are being a little 25 cheap.
We have talked about having interviews so that we
)
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could save everybody an awful lot of time, effort and money 2
I can't do the interviews by telephone from my office 1
3 because they have to be present.
4 So the only place that I can interview anybody is i
5 I have to go to White Flint and now they want to send me the 6
bill.
I guess I would submit they owe me change already 7
from discovery that I paid them for.
I think we are getting 8
down to nickels and dimes.
You already. alluded in the past t
9 half hour to overkill and trying to work together.
10 This is nonsense.
Now we are talking about who is 11 going to pay for a phone call?
I wish they would stop 12 sending me ten copies of everything they are sending.
13 JUDGE MARGULIES:
Mr. Davis.
14 MR. DAVIS:
We charged the defendant $75 for 1800 15 pages of documentation thus far, which I think is a pretty 16 good deal.
That's pursuant to rule which in another Section i
17 said when we turn over an investigative report, it has to be 18 paid for.
That is specifically in the rules.
i 1
l 19 In essence, we are bound by the rules as well i
20 ourselves.
It says each party shall bear its own cost of 21 discovery.
That's an obligation that we live with, that we 22 are responsible for following and implementing.
23 A number of the witnesses, fortunately, actually, 24 have moved to headquarters region now and, as Mr. Clarke 25 knows, some of the key witnesses are here, they aren't even
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1 in Georgia, so I don't know at all that he's going to be 2
involved in any substantial expense for telephone 3
interviews.
4 I seriously doubt that it will be that much, but 5
in any event, we are not planning to bill him.
This is his i
1 6
conference call if he wants to call Georgia.
He can sit 7
down and interview people personally who are here.
l 8
Again, we don't even know the extent to which --
9 we haven't been told exactly who, where, how long or how 10 much.
That's pretty much under his control and under the 11 rules he's to bear the cost.
12 JUDGE MARGULIES:
I guess you are going to have to l
l 13 be branded on the record as cheap and I guess you are going l
14 to have to bear the cost, Mr. Clarke.
i
/
15 MR. CLARKE.:
I understand.
16 JUDGE MARGULIES:
Am I correct that resolves 17 Discovery Request Number 15?
1 18 MR. SHAPIRO:
Yes.
l 19 JUDGE MARGULIES:
Getting back to Discovery 20 Request Number 5, when do you believe you can get that 21 information over to Mr. Clarke?
22 MR. DAVIS:
That's the site plan question?
23 JUDGE MARGULIES:
Correct.
24 MR. DAVIS:
We are up against one business day 25 between now and next Tuesday.
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JUDGE MARGULIES:
What is next Tuesday?
2 MR. DAVIS:
I don't ~have a calendar.
Today is the 3
first -- Tuesday is the sixth?
I would certainly think that 4
any additional map or any larger map we could produce by the 5
eighth, next Thursday.
That should be ample time I would 6
think for us to search.
If we get it before then, of course 7
we will provide it.
8 MR. CLARKE:
Can I make a suggestion?
5 JUDGE MARGULIES:
Yes.
10 MR. CLARKE:
I have plans to be out of state next 11 week on a vacation that's been planned for about six months.
12 If I get it on Tuesday or if I get it on Friday afternoon it 13 isn't going to matter because I can't read it before 14 Saturday If that helps, a week is fine.
)
15 JUDGE MARGULIES:
Is one of your concerns, Mr.
16 Davis, the matter of the dispositive motions on July 2?
27 MR. DAVIS:
Yes, it is, Your Honor.
Yes, it's a 18 separate matter.
I do believe that the schedule now needs 19 to be readjusted and in accordance with the spirit of our J
20 intent and to limit the deposition to anything not covered 21 by response to the request for admissions, it would seem 22 that we probably need at least an additional 30 days of 23 discovery from today which would correspond to, I guess the 24 current June 24 date on the schedule instead of June 24 for
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25 completion of depositions, and essentially that was to be
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the end of discovery 2
Did not deal with the problem of what would happen 2
3 in the event of objected-to discovery which would be i
4 granted, but I would suggest that we need probably 30 to 45 5
days to complete discovery at this point and then maybe two 6
weeks for the filing of dispositive motions after that date.
I 7
So that I would recommend that maybe discovery 1
8 continue until August -- discovery cutoff August 15, motions i
9 for summary judgment something like September --
10 JUDGE MARGULIES:
Are we really going to 11 accomplish anything with motions for summary judgment?
Are 12 we going to keep trying to case?
13 MR. DAVIS:
We honestly believe the travel voucher 14 counts -- we find it difficult to understand how the 15 elements cannot be proved once we have admissions as to the i
16 documents because we think that there should be a very 17 strong probability of summary judgment on that.
Overtime is
\\
i le more questionable but we think it's very possible that the i
19 case could be narrowed to overtime and damages for hearing.
20 MR. CLARKE:
I would suggest I don't think there 21 is a prayer.
I think that what happens in a case such as 22 this is -- this is a case where they have to prove 23 knowledge, they have to prove fraud and those are 24 traditionally in any approach to the law not the subject 25 matters of summary judgment.
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1 More power to them if they want to put together a
2 the motion.
We have one motion which we want to put i
3 forward, all of which I think needs to be presented and 4
litigated.
5 I do agree, and we spoke before the hearing, that 6
the schedule probably should be rolled forward but I think l
7 the trial date ought to stay the same.
We had built in 8
about a month, the month of August, and I think if we rolled 9
the matter of depositions and discovery ahead we can still 10 allow ourselves a sufficient opportunity for the filing of 11 motions.
I, frankly, don't think the motions of either side 12 at these tables are going to be dispositive but we may be 13 wrong in our estimate.
14 MR. DAVIS:
I think, Your Honor, the question of i
15 knowledge or reason to know is not -- in this case it's 16 clear we are not talking about intent to violate the law.
17 It's not specific intent according to the regulations.
18 Mr. Zerr signed these vouchers and repeatedly 19 submitted claims for expenses which were not incurred and we 20 believe once those admissions are established, I can't 21 imagine, and given the pattern of them, that we have 23 22 counts here, we cannot see how it can possibly be a defense 23 to the travel voucher claims.
24 JUDGE MARGULIES:
I can't pre-judge the motions 25 for summary disposition but if any questien of fact remains,
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_ question of law or fact, _the motion will fail and we_are 2
going to be going through the same thing all over again.
We 3
may be in the position of really trying it twice and it 1
4 becomes a question of whether that's something the parties 5
want to do.
It may be simpler, just following your 6
discovery, to go ahead with the trial but that's a decision i'
7 you have to make.
6 There are a lot of procedures out there but that I
9 doesn't mean they hase to be tried out in every case.
j 10 That's up to you.
11 MR. DAVIS:
Your Honor, if we did succeed in 12 summary judgment on the vast majority of the counts it would 13 certainly substantially reduce the cost to the NRC of 14 bringing employees here and of putting on its case.
l
}
15 JUDGE MARGULIES:
But if you don't succeed, then 16 you have gone through the hearing process twice, in effect.
I 17 MR. DAVIS:
It's something that we felt would be i
18 useful and we are willing to undertake that burden.
We did i
19 leave a fair amount of time for the dispositive motion.
20 It is possible that maybe we could work out a
]
22 schedule that would try to accommodate, permit you to 22 consider the motion close to the time of trial.
Of course, 23 that does involve a fair amount of simultaneous work in 24 preparing witnesses, preparing the trial and that sort of 25 thing at the same time but the case might be stopped at the
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last minute.
It certainly has happened many times in my 2
experience that summary judgment has been granted on the eve 3
of trial.
4 In large part, I awaited trying to develop full 5
recommendation on this because I was waiting to see what 6
happened today.
Maybe it would be useful if we had a five 7
minute recess and we could try to discuss it with Mr. Clarke 8
and I could discuss it with my co-counsel now that I have 9
Your Honor's rulings.
10 JUDGE MARGULIES:
Also in terms of whether you are 11 going to have motions for summary disposition, you are going 12 to have to see Mr. Zerr's responses or I would think you 13 would want to see his responses before you make that 14 ultimate determination.
15 MR. DAVIS:
That's right.
He also, of course, has 16 indicated he has a motion for summary disposition which of 17 course should be -- if he believes he can preclude the 18 litigation of the case on some particular ground, I think 19 it's in everybody's interest to have that decided in advance 20 of the final stages of trial preparation.
21 JUDGE MARGULIES:
Let's take another 15 minutes 22 and see what you people can come up with.
23
[ Recess.)
24 JUDGE MARGULIES:
Eack on the record.
Prior to 25 going into recess we were discussing when items to be
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supplied under Discovery Request 5 and 6 were to be i
2 presented.
Have you discussed that?
i 3
MR. DAVIS:
Our focus primarily was on the 4
schedule.
I think Mr. Clarke indicated he's out until a 5
week from Monday.
We would be happy to work on it to try to i
6 set that date a week from this coming Monday.
7 MR. CLARKE:
Monday, the 12th.
i 8
JUDGE MARGULIES:
You will attempt to supplement 1
9 the map or photo or whatever you have of the plant and 10 attempt to show more detail in terms of the functioning of 21 the various areas, is that correct?
12 MR. DAVIS:
Yes, we will attempt to do that, yes.
13 MR. SHAPIRO:
I think what respondent really needs 14 is a map that shows the red area is a protected area and a
)
l l
15 black area that's outside the protected area and what 16 functions go on in each.
17 MR. CLARKE:
I am not trying to stick them with a 18 very tough time period.
I recognize there is a holiday on 19 Monday and they recognize I am going to be away.
If they 20 want 15 days, it's fine with me.
If they want to go to the i
21 16th, that's fine.
I am pretty flexible as far as that's 22 concerned.
It's for a very specific purpose at trial which 23 is not coming up for a couple of weeks.
{
1 1
24 MR. DAVIS:
That would probably be useful, l
75 especially in terms of trying to find any records of Mr.
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Zerr's activities..
i I
I 2
JUDGE MARGULIES:
Pick a date.
I 3
MR. CLARRE:
Friday, the 16th.
4 JUDGE MARGULIES:
That will also be in terms of l
l 5
the names of people within the timeframe of the overtime 6
counts that Mr. Zerr had contact within his official 7
capacity in working for the NRC at the Hatch plant.
Do you i
B have any question about that?
I l
9 MR. DAVIS:
No.
i 10 MR. SHAPIRO:
If they can in the meanwhile come 11 forward and say it was this inspection or this meeting, give I
12 us any clue to activities he participated in, that would j
i 13 certainly help us.
t 14 JUDGE MARGULIES:
To the extent that Mr. Clarke
- )
15 feels that it's necessary, it's up to him.
I wouldn't put 1E any requirement on it.
It would be purely voluntary.
17 MR. CLARRE:
Thank you.
We will try to do what we 18 can do but we were asking because we are without knowledge.
l 19 JUDGE MARGULIES:
Are other changes proposed for 20 the schedule presently in effect?
21 MR. CLARKE:
Yes.
We have discussed the fact that 22 it's going to take some time to put together the discovery 23 answers from both sides and it's going to take, thereafter, 24 some time to probably have this deposition scheduled of Mr.
i 25 Zerr and thereafter both sides wish to file some motions 4
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which wou2d be, which each side would then like to respond 2
to.
3 We have suggested several changes with respect to 4
the current schedule and one of those -- actually all of 5
those presuppose the fact that the trial would move off by 1
1 6
several weeks, but by doing that we probably can accommodate 7
all the rest of the previous schedule within its framework, 8
just moving the dates along.
Mr. Davis has written down the 9
various dates.
i l
10 MR. DAVIS:
We would suggest August 1 as a cutoff l
11 tor return of written discoverv.
l i
i 12 MR. CLARKE:
Make that August 2 which is a Monday.
i I
13 MR. DAVIS:
Yes.
August 10 for the completion of j
14 any interviews or depositions, August 15 for the filing of 15 dispositive motions.
16 MR. CLARKE:
Make that the 16th.
17 MR. DAVIS:
September 2 for opposition to 1S dispositive motions, September 10 for replys to dispositive 19 motions.
20 MR. CLARKE:
Replys to oppositions?
21 MR. DAVIS:
That's right.
September 27 which is 22 the trial date for the final pretrial stipulation and/or 23 statements, exchange exhibits, witness lists.
Then October 24 4 for the response to exchange of lists and the trial for 25 October 12.
I
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JUDGE MARGULIES:
The dates look all right to me.
2 I may have a problem with the October 12 date -- may have to 3
set it back a week or two -- but aside from that I don't 4
have any problem with it.
5 MR. CLARKE:
In looking at the calendars, the 6
c;nflict that posed a problem for me would be the following
)
7 week but only probably the first two days of the following 8
week.
I have a previously scheduled trial that's not going 9
to go more than two days, i
10 JUDGE MARGULIES:
Is there anything further?
Il MR. CLARKE:
I think that's it.
l 12 MR. DAVIS:
No.
13 JUDGE MARGULIES:
Thank you very much.
The 14 proceeding to this point is closed.
Thank you.
15
[Whereupon, at 4:14 p.m.,
the hearino was 1
1 16 adjourned.)
17 18 19 20 21 22 23 24 25 l
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1 REPCRTER'S CERTIFICATE i
j This is to certify that the attached proceedings before the United States Nuclear Regulatcry l
Commission i
in the matter of*
NAME OF PRCCEEDING: Lloyd zerr 1
t DOCKET NUMBER:
5 i
1 PLACE OF PRCCEEDING: Bethesda, MD were held as herein appears, and that this is the l
original transcript thereof for the file of the United States Nuclear Regulatory Cer.=ission taken
~
by me and thereafter reduced to typewriting by ne l
1) or under the direction of the court reperting i
/
ce=pany, and that the transcript is a true and accurate record of the foregcing preceedings.
i t
M0!!bbr Ptuh official Reporter i
j Ann Riley & Associates, Ltd.
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