ML20054H754
| ML20054H754 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 06/21/1982 |
| From: | Frye J Atomic Safety and Licensing Board Panel |
| To: | ZIMMER AREA CITIZENS - ZIMMER AREA CITIZENS OF KY |
| References | |
| LBP-82-47, NUDOCS 8206240395 | |
| Download: ML20054H754 (16) | |
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LBP-82-47 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION cY,[
Before Administrative Judges:
John H Frye, III, Esq., Chairman Dr. Frank F. Hooper SERVED JUN 221982 Dr. M. Stanley Livingston In the Matter of )
)
The Cincinnati Gas & Electric ) Docket No. 50-358 Company, et al. )
)
(Wn. H. Zimmer Nuclear )
Power Station, Unit 1) ) June 21, 1982 MEMORANDUM AND ORDER (Ruling on ZAC Motion for Discovery Sanctions) l I. Background On January 12, 1981, pursuant to subpoenas issued by this Board, Troy 8. Connor, Jr., Counsel for Applicants Cincinnati Gas & Electric l Company, et~ al., deposed Carolyn McIntosh, James Fite and Dorothy Seiger, each, of whom had been previously identified by intervenor Zimmer Area Citizens-Zimer Area Citizens Kentucky (ZAC) as proposed witnesses i for the evidentiary hearings on emergency planning contentions. These witnesses are employed by the New Richmond, Ohio, School District as, respectively, the principal of the Monroe Elementary School, an I administrative assistant to the superintendent, and the District's .
transportation supervisor.
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t ZAC had served written direct testimony in these proceedings for each of its other proposed witnesses upon this Board and the other parties on January 8,1982. ZAC's Counsel, had, however, submitted a
" Statement By Counsel" in lieu of direct testimony for these witnesses.
He stated in that document that this procedure was necessary because either the New Richmond School Board, the Superintendent, or both, had forbidden these three witnesses to discuss any matter with Counsel for ZAC and had precluded these persons from taking any part in these proceedings, except as ordered by subpoena. By way of this " Statement",
Mr. Dennison sought both the issuance of subpoenas directing that these three persons appear and testify before this Board, as well as the leave of this Board to conduct ZAC direct examination of these witnesses orally at hearing.
Subsequently, Mr. Connor deposed these three witnesses as a panel on Applicants' behalf. Mr. Dennison was present during this deposition and, upon completion of Mr. Connor's examination, sought to depose these witnesses himself.
Mr. Connor, at page 21 of the transcript of this deposition, objected to this procedure as not being the Applicants' purpose in scheduling this deposition. Thereafter, Mr. Connor objected to Mr. Dennison's questions regarding the school site shared by the New Richmond Elementary, Middle and High Schools (Dep. Tr. 26).
Mr. Connor stated that he had asked these witnesses no questions about this school site and asserted that Mr. Dennison's questions could -
not exceed the scope of his questions. In response to the suggestion
that it might be in order to consult the Board on this question, possibly resulting in a continuance, Mr. Connor reasserted that he had i asked no questions about the New Richmond school site. Mr. Dennison l disputed this (Id.) .
When Mr Dennison resumed questioning the witnesses, Mr. Connor asked the court reporter to stop transcribing (Dep. Tr. 27). Mr.
Dennison challenged Mr. Connor's authority to terminate ZAC's examination of these witnesses, and asked the court reporter to continue (Dep. Tr. 28).
During the ensuing argument, Mr. Connor stated the following reasons for desiring to terminate the deposition:
. . . The position of the Applicant is that this goes beyond the scope of anything stated in questioning by me. And since this is the Applicant's deposition and since the Applicant is paying for it and since we have no intention of assisting Mr. Dennison to interrogate these witnesses. . ., I've directed the reporter to cease to transcribe (Dep. Tr. 28-29). .
As further justification for terminating the deposition, Mr. Co ner stated the Applicants' desire to avoid involving the witnesses in any problems with their school district which might result from their having been directed not to discuss this matter with Mr. Dennison "beyond the scope of the matter that they were subpoenaed here today to discuss, l which I have now completed" (Dep. Tr. 29).
Mr. Dennison disputed Mr. Connor's characterization of the scope of the matters to which these witnesses could be required to testify and stated for the record those matters into which he would have i
inquired if permitted to continue (Dep. Tr. 30-31). At the point where
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the deposition was halted, Mr. Dennison's questions were within the scope of Mr. Connor's examination.
Mr. Connor concluded the deposition with the following statement:
For the record, I'm advising the witnesses that Mr. Dennison, of course, may have the right to ask you about the matters he just indicated.
But, it's not our intention to involve you in any difficulties with your school system. So, on that basis, you are hereby excused from our subpoena (Dep. Tr. 31).
II. ZAC's Motion In its motion, ZAC alleged that Mr. Connor's above-recited actions were in violation of 10 CFR 2.740a(d) and Rule 30(c) of the Federal Rules of Civil Procedure (FRCP), and sought, pursuant to FRCP Rule 37(a)(2) and (4), to have t'is h Board: (1) stay these proceedings pending'his complstion of these depositions; (2) enter a protective order pursuant to 10 CFR 2.740(c) restraining Mr. Connor from similar conduct at any future deposition; and (3) order that Mr. Connor pay costs and attorneys' fees alleged to have been occasioned by his actions _
including reasonable attorney's fees and expenses for attendance at the deposition, preparation of the instant motion, and either (a) the costs of conducting future depositions, or, if no new depositions are ordered, (b) the costs of subpoenaing and examining these witnesses at hearing.
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III. Depositions Under NRC Regulations Pursuant to 10 CFR 2.740a(d), the procedure for corfd ucting a deposition under NRC practice is described as follows:
(d) The deponent shall be sworn or shall affirm before any questions are put to him. Examination ~
and cross-examination shall proceed as at a hearing Each question propounded shall be recorded and the answer taken down in the words of the witness.
Objections on questions of evidence shall be noted in short form without the arguments. The officer '
shall not decide on the competency, materiality, or relevancy of evidence but shall record the evidence subject to objection. Objections on questions of evidence not made before the officer shall not be deemed waived unless the ground of the objection is one which might have been obviated or removed if presented at that time.
This section is adapted from Rule 30(c),FRCP,l_/ the provisions of which are substantially the same as the Commission's rule. While the Federal Rules of Civil Procedure are not themselves directly applicable to practice before the Commission,2/ judicial interpretations of a Federal rule can serve as guidance for interpreting a similar or analogous' NRC discovery rule.3,/ In its January 19, 1982 motion,
-1/ See Statement of Considerations, 37 Fed. Reg. 15127 (July 28 TN72) .
2/ Rule 1 of the Federal Rules of Civil Procedure provides that these rules govern the procedure in Federal District Courts, and the Commission has not adopted these rules in, toto.
3/ Detroit Edison Company, et al. (Enrico Fermi Atomic Power Plant, Unit 2), LSP-78-37, 8 NRC 575, 581 (1978); Toledo Edison Co:npany (Davis-Besse Nuclear Power Sttion), ALAB-300, 2 NRC 752, 760 (1975). .
ZAC took issue with Mr. Connor's characterization of a deposition as being " owned" by the party establishing that deposition. In ZAC's view, Mr. Connor had attempted to conduct Applicants deposition of the three New Richmond School District witnesses on an "ex parte" basis, denying ZAC the right to cross-examine them.
ZAC states that while it has found no case with a factual setting quite the same as this, it believes that Mr. Connor's termination of the deposition is comparable to that of an attorney who instructs a deponent not to answer a question, thereby preventing a deposition from continuing. Relying on Ralston Purina Co. v. McFarland, 550 F.2d 967, 972 (4th Cir.1977) and Coates v. Johnson and Johnson, 85 F.R.D. 731, 732-733 (N.O.111., E.D.1980), ZAC asserts that Mr. Connor's conduct was both improper and prejudicial to its rights, and seeks the issuance of sanctions against Mr. Connor.
In his January 28, 1982, An'swer to the motion, Mr. Connor asserts that it was not he, but Mr. Dennison who violated the requirements of the Commission's regulations during the course of the deposition. Mr.
Connor notes that 10 CFR 2.740a(d) specifies that "[e]xamination and cross-examination shall proceed as at a hearing," which he interprets as meaning that " counsel for ZAC/ZACK was not entitled on cross-examination to go beyond the scope of the questions asked by Applicants on direct examination at the deposition." Mr. Connor also contends that the scope
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of this Board's subpoenas was limited to those matters into which he chose to question the New Richmond witnesses. He cites no authority for either of these propositions.
The questions which this Board must resolve, therefore, are first, whether Mr. Dennison's questioning must be limited to the scope of Mr. Connor's examination, and second, whether Mr. Connor had the right to terminate the deposition.
A. Scope of Cross-examination at a Deposition To the best of this Board's knowledge, +.he permissible scope of cross-examination at a deposition held pursuant to 10 CFR 2.740a(d) of the Commission's regulations does not appear to have been addressed previously in an NRC adjudication.. What little authority we have found interpreting the parallel language of the Federal Rules of Civil
. Procedure, however, directly contradicts Applicants' assertion that ZAC's questioning was limited to those matters raised by Mr. Connor.
In Spray Products Inc. v. Strouse, Inc., 31 F.R.D. 211 (E.D.Pa.
1962 (a suit for patent infringement), the plaintiff had noticed the depositions of two witnesses employed by the company which packaged plaintiff's products. While these witnesses had appeared willingly and testified as experts on plaintiff's behalf on direct examination, they had refused, on advice of counsel, to testify on cross-examination with l
regard to their employer's business. Plaintiff took the position that such questions were beyond the scope of direct examination and, I
therefore, were not permissible cross-examination.
, The court disagreed, holding that the ordinary trial limitations on the scope of cross-examination do not preclude a party from inquiring
l into relevant matters beyond the scope of direct at a deposition.
Noting that under the FRCP, a party does not make a person his own witnessbytakinghisdeposition,4/thecourtconcluded that a party other than the one noticing a deposition may examine the deponent on issues beyond the scope of those matters raised by the noticing party without the necessity of a new notice of deposition.
Professor Moore, upon whom the court in Spray Products relied, states:
[If] the party taking the deposition examined the deponent only as to one issue in the case, it would seem that another party may examine the deponent on any other issues by direct examination without the necessity of serving a prior notice of the taking of deposition. In so doing, he did not make the deponent his witness. . . . Thus the only practical effect in discovery examinations of the restriction upon the scope of cross-examination is to ~
prevent the use of leading questions when the interrogation is upon issues which were not the subject matter of the examination in chief; and the deponent is neither an unwilling nor a hostile witness nor an adverse party nor an officer, director, or managing agent of a public or private corporation of a partnership orassociationwhichjsanadverseparty.
(Footnotes omitted.)S, 4/ Former Rule 32(c) which described the effect of taking and using depositions, explicitly. stated this proposition. This Rule was abrogated as unnecessary, however, with the adoption of the Federal Rules of Evidence, since those rules provide that any witness may be either contradicted or impeached. See 4A Moore's Federal Practice, Para. 32.10 (1981) . The Commission regulation based on former Rule 32c still provides that "[a] party shall not be deemed to make a person his own witness for any purpose by taking his deposition." 10 CFR , 2.740a(g).
5/ 4A Moore's Federal Practice, para. 30.58 (1981).
We believe that this interpretation of Rule 30(c) should apply with equal force to the language of 10 CFR 2.740a(d). Whatever facial validity Applicants' argument may have had, we would be extremely reluctant to hold, based upon nothing more than the above-quoted language of 10 CFR 2.740a(d), that the drafters of these regulations contemplated that each party to an NRC proceeding was to be required to convene its own deposition if it seeks to question a witness as to any matter beyond the scope of those issues raised on direct by the party noticing the deposition. The additional inconvenience, expense and, in particular, delay which such a procedure could occasion in our
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proceedings would appear to vastly outweigh any potential b.enefits accruing from Applicants' reading.
The Board also agrees with ZAC that no party has a proprietary interest in a deposition, and for that reason, no party has a proprietary interest in a subpoena issued to a deponent. While Applicants deem it unfair to allow ZAC to benefit from a deposition at Applicants' expense, such has long been_the practice in civil litigation. The Board believes the drafters of Commission' regulations intended the same results to obtain under NRC practice by the promulgation of 10 CFR 2.720(d) and 2.740a(h), which require that fees for subpoenas and the fee for deponents, respectively, are to be paid by the party at whose instance the subpoena was issued and the deposition was held.
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We therefore conclude that Mr. Dennison's attempt to depose the New Richmond School District witnesses was proper, whether or not those matters objected to by Mr. Connor were beyond the scope of his direct ex amination.
B. Objections at Depositions Pursuant to 10 CFR 2.740a(d), objections on questions of evidence at a deposition are simply to be noted in short form, without argument. Mr. Connor's objection that Mr. Dennison's questioning was going beyond the scope of those matters raised on direct examination was a question which should have been noted for the record and Mr. Dennison allowed to continue.
Mr. Connor was aware that this is Commission practice. In the course of this deposition, Mr. Connor actually quoted it when Mr.
Dennison began to state his reasons for objecting to a question:
For the record, then, I'm stating this for the record; under the NRC practice, objections are not argued on depositions but, would be argued in the proceeding in the event the matter were ever to be used in the proceeding. (Dep. Tr. 14.)
Applicants' response does not clearly explain the basis for Mr.
Connor's conclusion that he was entitled to terminate the deposition, instead of merely objecting on the record. Applicants do assert, at page 10 of their response, that ZAC should have sought a prompt ruling from this Board on Mr. Connor's termination of the deposition, but do not explain why such a ruling was not sought from the Board by Mr.
Connor prior to terminating the deposition. Clearly, as the proponent of the objection, it was Mr. Connor's obligation to seek a ruling if he were not content to object on the. record.
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Applicants also attempt to distinguish the Ralston Purina case cited by ZAC. As characterized by Applicant, Ralston Purina was a case in which plaintiffs' counsel instructed the deponent, plaintiffs' employee and principal witness, not to answer certain questions propounded to him on direct examination "apparently on grounds of relevancy." Applicant asserts that:
This is a far cry from the situation here, where Applicants' counsel was deposing a non-party who had been listed as a witness by an opposing party and where the objection went to the scope of the direct examination and hence the subpoenas, .i .e., not merely an evidentiary objection 7 -(App. Answer at 9.)
Applicants' argument is not valid. Assuming that he was operating under the mistaken impression that Mr. Dennison's questions were not proper, Mr. Conner had no basis for terminating the deposition.
As stated in United States v. I.B.M. Corp., 79 F.R.D. 378 (S.D.N.Y.
1978), quoting Shapiro v. Freeman, 38 F.R.D. 308, 311-312 (S.D.N.Y.
1965), with respect to the conduct of depositions:
It is not the prerogative of counsel, but of the court, to rule on objections. Indeed, if counsel were to rule on the propriety of questions, oral examinations would be quickly reduced to an exasperating cycle of answerless inquiries and court orders. Alternatively, if the plaintiff's attorney believed that the examination was being conducted in bad faith, that the information sought was privileged, or that the deponents were being needlessly annoyed, embarrassed, or oppressed, he should have halted the examination and applied . ..
for a ruling on the questions, or for a protective order . . .. He had no right whatever to impose silence or to instruct the witnesses not to answer, especially so when the witnesses were not even his clients. I d_.
at311-12(footnotesomitted)(emphasis added).
Mr. Connor chose to rule on his own objection and unfortunately ruled the wrong way. Regardless whether he was right or wrong in his ruling, Mr. Connor's conduct in failing to approach the Board for a ruling was at variance with the Commission's Rules.
IV. Discovery Sanctions Under NRC Regulations Having determined that ZAC is correct on the merits, we turn our attention now to the subject of relief.
During oral argument of this motion at hearing, Counsel for ZAC stated, in response to a question from this Board, that he did not believe ZAC would be prejudiced by Mr. Connor's actions, should this Board allow him leeway to question the New Richmond School District witnesses at hearing as if he were conducting a deposition (Tr. 4951).
With that understanding, these hearings proceeded.
While this Board would have considered the request for a stay of the hearings to permit the deposition of these witnesses had prejudice been shown, such relief was inappropriate in the absence of any allegation of prejudice. In any event, as the examination of these witnesses at hearing has been completed, we find ZAC's request for a stay is moot.
Similarly, we deny ZAC's motion for a protective order restraining Mr. Connor from similar conduct as moot.
The third form of relief which ZAC seeks by its motion is the grant of costs and attorneys' fees, pursuant to FRCP Rule 37(a)(2) and (4),
which are alleged to have been incurred as a result of Mr. Connor's actions. Such monetary awards have been considered to be appropriate sanctions for violations of the clear language of Rule 30(c) where there is no showing of substantial justification or mitigating circumstances. <
International Union of Electrical, Radio and Machine Workers v.
Westinghouse, 91 F.R.D. 277 (D.C.,D.C. 1981); Coates v. Johnson and Johnson, 85 F.R.D. 731 (N.D.Ill.,E.D. 1980).
Applicants assert, at page 10 of their response, that an NRC licensing board lacks the authority to assess costs, relying upon Consumers Power Compa. / (Midland Plant, Units 1 and 2), Docket Nos.
50-329 and 50-330, unpublished order dated September 23, 1977,. at 4-5.
They further assert that an award of attorneys' fees is both beyond the authority of a licensing board and in violation of the Commission's policy against funding intervenors.
At the outset, we reject as specious any argument that the Commission's policy against funding intervenors would preclude us from awarding costs or attorneys' fees based upon this transaction. While this policy would likely preclude our granting any motion seeking costs or attorneys' fees which were to be paid out of NRC funds, Applicant cannot claim that the Commission's policy was intended to protect Appli. cants' financial resources.
We decline to accord any weight to the Midland order upon which Applicant relies, since we believe it would violate the Administrative
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Procedure Act's notice requirements to rely upon an unpublished order as precedent.6/
In the absence of a specific authorization in the Commission's Rules of Practice, ZAC relies on Rule 37(a)(2) and (4), FRCP, which specifically authorizes the award of reasonable expenses, including attorney's fees, in this situation. We agree that such an award is justified by the facts.
However, the lack of specific authorization to make such an award presents an obstacle. While the Commission has provided for sanctions with' regard to discovery in 2.707, it has not adopted Rule 37, FRCP.
Rule 37 is therefore inapplicable. "[H]aving selected some, but not all, of the discovery provisions set out in the Federal Rules, the Commission did not intend for the unselected Federal Rules, to control its proceedings." General Electric Company (Vallecitos Nuclear Center-General Electric Test Reactor), LBP-78-33, 8 NRC 461, 465 (1978); Fermi, supra, 8 NRC at 581.
While 2.707 invests broad discretion in presiding officers to enter such orders "as are just" with respect to a default by a party, it specifically conteiaplates, with respect to discovery, that such orders are to be entered on failure of a party to comply with an earlier order.1/ No such order exists; in fact, the transaction in 6] See 5 U.S.C. 552(a)(2)(C).
7/ In this respect, 2.707 parallels Rule 37(b) which deals with sanctions imposed for failure to comply with a discovery order.
As noted, ZAC relies on Rule 37(c) which covers this situation because no preexisting order is involved.
question occurred after formal discovery had closed and was a part of discovery being conducted voluntarily by the parties.
If such an order did exist, the question of our authority to make the award ZAC seeks would be fairly presented. An analogous situation is presented by two recent construction permit withdrawal proceedings, Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1)
ALAB-662, 14 NRC 1125 (1981) and Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-668,15 NRC slip op. at 2, n. 2 (March 24, 1982).
In these cases, the Appeal Bord expressly left ". . . open the question whether something short of a dismissal with prejudice, such as conditioning withdrawal of an application upon payment of the opposing parties' expenses, might be within the Commission's powers and otherwise appropr,iate where the expenses incurred were substantial and intervenors developed information which cast doubt upon the merits of the application."
We conclude that, Rule 37(a)(2) and (4) (FRCP) not having been adopted by the Commission, and no preexisting discovery order having been violated, we lack the authority to award ZAC the fees and costs it seeks.
In consideration of the foregoing, it is this 21st day of June, 1982, ORDERED
- 1. ZAC's request for a stay of these proceedings is denied as moot;
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- 2. ZAC's request for a protective order is denied as moot; and
- 3. ZAC's request for attorney's fees and expenses is denied as beyond the authority of this Board.
FOR THE ATOMIC SAFETY AND LICENSING BOARD Joh i rye, III, Chairman Bethesda, Maryland June 21, 1982
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