ML20073Q472
| ML20073Q472 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 04/25/1983 |
| From: | Eddleman W EDDLEMAN, W. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| 82-468-01-OL, 82-468-1-OL, ISSUANCES-OL, ISSUANES-OL, NUDOCS 8304290134 | |
| Download: ML20073Q472 (6) | |
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- 0LpF UNITED STATES OF AMERICA g3 GR 28 M1:31 NUCLEAR BEGULATORY COMMISSION April 25,1983
- s. w Ido T[yhC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Glenn O. Bri Dr. James H.ght Carpenter James L. Kelley, Chairman In the Matter of
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Dockets 50 400 OL CAROLINA POWER AND LIGHT CO. et al.
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50 401 OL (Shearon Harris Nuclear Power Plant, J
Units 1 and 2)
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ASLBP No. 82-h68-01
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OL Wells Eddleman's Answer to Anblicants' Motion to Compel ( re first s'et of interrogatories)
Applicants comnletely misstate my nosition:
First, the information and persons upon whom I relied in formulatinF my contentions are being revealed.
Second, as stated in my objection, I object to releasing the names of persons who have provided information which I used in answering interrogatories. Information provided is being nut into the answers where I rely on such information.
This has been my consistent nosition.
Nor do I object to layinF out a list (e.g. Al Aloe contributed information to response to interrogatory X-13) of pseudonyns for folks consulted IF this doesn't conoroni,,se my objection to actua]ly revealing the persons' names.
This the Annlicants have about correct.
I amend line 7 of my objection to replace the words " essentially 8g f only if" with "unless":
Unless Applicants can show "it is imnracticable to l
@8 for the party seeking discovery to obtain facts or oninions on the Le
,0 same subject by other means," the facts are not discoverable.
O$
oo But as stated above, I am willing (and have acted) to reveal n<
gg the facts on which I rely in my answers.
It is to revealing the names no of persons informally consulted (unconditionally trotected under Ager l
- v. Jane C. Stormont Hosnital, 622 F2d h96 (1980)), andanyexperts)
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< specially retained for this case but not a s witnesses (non-witness experts) that I object.
Aunlicants rely on Vallecitos (8 N9C 462), but in a virtually identical case decided in Seabrook 24 March 1983, that Board rejected this argument.
The Appeal Board has followed the federal rules of evidence and practices where an analogous N90 rule did not exist (Marble Hill, AIAB-374, 5 NRC h17 at 421, views of Mr. Farrar joined in by the entire Board).
Neither 9ule 26(b)(h)(B) nor 10 CFR 2.7h0:
reouires explicitly that the identity of nont-witness experts be disclosed.
Both rules, however, contain a orohibition against discovery of the content of the advice of non-witness expert consultants absent a special showing of exceptional circumstances under which the discovering party is " unable without undue hardshin to obtain the substantial equivalent of the materials by other. means." lo CFR 2 740(b)(2) and similarly in Federal Rule 26(b)(h).
This requirement for a showing of exceptional need for the content of non-w*tness advice is held in Ager, suora to also Apoly to the identity of non-witness consultants; the same case holds informal consultation with a non-witness expert absolutely privileged, as noted above.
(In this case, since I am acting as my own counsel, oral communication with me may be privileged anyway.)
As stated in ny original objection (p.h) this showing is not l
possible when the facts of a party's position are known, other exnerts are available (as they are to Applicants -- see my certificate of Negotiations 4-2P-83, which I incorporate here by reference for the statements of Applicants' counsel that they can hire any experts they need, for any or all of my contentions), and the sunnlier of the l
information is not expected to testify.
Hoover v. US Dent _of Interior, 611 F 2D 1132 at 11h2, 5th Circuit, 1980.
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a
. The Seabrook board agreed with this sane line of reasoning:
We have examined the history of Pule 26(b)(h) and find that the situation it seeks to protect is analogous to this situation.
Rule 24(b)(4) differentiates between exnerts whom the party exnects to call as witnesses and those who have been retained or specially emnloyed by the party in preparation for trial.
The Notes of Advisory Committee on Rules explain that discovery of expert witnesses is necessary, particularly in a complex case, to na..rrow the issues and eliminate surprise, but that p.:urpose is not furthered by discovery of nonwitness experts. (slip op at pp 9-10).
That Board found that " Discovery of NECNP's non-witness exnerts will not narrow the issues nor eliminate surnrise at trial.
There-fore, discovery of the content of the advice of NPCNP's non-witness experts is denied."
Now, the " content of the advice" of ernerts includes a lot of things which are not the facts-which-I-rely-on that I am voluntarily revealing: strategy suggestions, ideas I don't rely on, facts I don't rely on, even (as Staff has raised in its motion to compel re CCNC, on first set of interrogatories in this case) who disagrees with your nosition, and information against that position.
I hold that since Applicants have nienty of lawyers and st vategists, l
and no lack of exnerts, they have no need for this information and it I
is not discoverable, under the federal rules and the Seabrook decision quoted from above.
The same decision (p.9) o.uotes the Anpeal Board that "there must first be inquiry into whether the situations are truly similar" Midland, ALAB-379, 5 NDC 565, 588 at note 13 (1977).
This situation is virtually identical to that in Seabrook, in which NFCNP stated (Answer to Auplicants Motion to Comnel, n.7) that NFCNP has already disclosed its contentions, their underlyinF rationale, and all f acts upon which its poa$ tion is based.
I have done likewise, i
o
_g.
The Seabrook board also ruled the identity of nonwitness exoerts was protected (slip op at 10), based on the same reasoning which I advanced in my objection.
That basis is that the federal rules and the nolicy concerns beh5nd those rules and the Ager decision do apply in NRC proceedings, dnd that the analysis set forth in Ager (Seabrook) anplies th that case (which is virtually identical to this case).
l The Ager ' court rejected arguments that disclosure of a consultant's identity weuld give the discovering party no mcterial advantage at the expense of the opposing party's ooposition.
I act out that reasoning in my objection, pages h and 5 and 6.
I add here that intervenors such as myself have access to a very limited nool of exoerts, who are
.reluctan.t to expose themselves to the tine-consuming and exnensive l
processes of being deposed or called as witnesses.
(More than one has said so to me.)
Other notential consultants or information souwces are warded off by the possibility that they will be identified in.
connection with intervenors.
(Again, I've seen several, and one who was not warded off by this cuestion and was identified, Hawkeye's security expert I'd retained, was forced to withdraw from this case by industry tressure.)
To require me to identify each nerson whom I have consulted with in answerinF interrogatories (or otherwise in preparing for thi s case) will have a chilling effect on my abili ty to obtain information and advice from experts, and thus prevent me from being able to assist in developing a sound record in this esse.
Applicants rely also on Susquehanna, but in that case, no objection like mine (or NECNP's in Seabrook) had been raised.
That case simnly does not-apply.
note: I do not recall Aprlicants askinF me for a " list" or listing of interrogatory resnonses on which I obtained any assistance; however, as noted above, I am willing to provide such a list if it doesn't compromise my objection.
L
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5 Because the ability to obtain advice from exnerts is very important to intervenors, I would respectfully request that if the Board believes it should unhold the Anplicants' position hewe, it should stay its order and bring the matter to the Anneal Board.
This is an important issue and may well come un in many future cases; the Seabrook board found for the intervenor in a virtually identical matter, and consistency can be established by the Appeal Boavd.
Finally, it will do ivrepavable harm to my ability to get exnert advice and assistance if an unstayed order to me to reveal the nanes of nersons who have provided information I have used in answering interrogatories issues, and the Apneal Board should eventually uphold my position and that cf the intervenors in Seabrook, sunra.
In the interim, the chilling effect will have occurreo an'd can't be undone.
For these reasons I respectfully request the Board to either unhold my position here, or certify or otherwise appropriately bring this matter before the Anpeal Board.
I note the similar request of Anolicants, h-20-83, re cost-benefit analysis at the 0.L.
stage.
W Wells Eddleman
'This 25th day of April, 1983 l
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UNITED STATES OF AMERICA NUCLFAR REGUIAT0FY C0!9CSSION
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Dockets 50-hoo In the matter of CAROLIKA POWE". k LIGHT CO. Et al.
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and 501:h01 0.L.
Shearon Harris Nuclear Power Plant. Units 1 and 2 CERTIFICATE 0F SERVICE Wells Eddleman's Answer to I hereby certify that copies of Aeolicants' Motion to Conpel (re First Set of Interrogatories)
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EAVE been served this day of April 1981,bydepositin the US Mail, first-class postage prepaid, upon.all parties whose j
names are listed below, except those whose names are tarked with an asterisk, for whom service was accomplished by Judges James Kelley, Glenn Bright and James Carpenter (1 e gy each)
Atomic Safety and Licensing Board US Nuclear Regulatory Commission Washington DC 20555 George F. Trowbridge (attorney for Aeplicants)
Shaw, Pittman, Potts & Trowbridge Luthanne G. Miller ASLB Panel 1800 M St. NW USNRC Washington DC 2C55 5 Washington, DC 20036 Office of the Executive Legal Director Phyllis Lotchin, Ph.D.
Attn Dockets 50-400/401 0.L.
105 3ridle Run Chanel Hill NC 2751L USNRC Washir.ston DC 20555 Dan Read Docketing and Service Section CHA?E/FLP Attn Dockets 50-h00/h010.L.
Box 52h Office of the Secretary Chapel Hill NC 2751h USNRC Washington DC 20555 Pat & Slater Newnan CANP John Runkle Karen E. Lons 2309 Weynouth Court CCNC Public Staff Atty Raleigh NC 27612 307 Granville Rd Sox 991 Chapel Hill Ec 2751h naleigh, Nc 27602 Bradley W. Jones USNRC Region II 101 Marietta St.
'Travi s Payne Edelstein & Payne Atlanta GA 30303 Box 126h3 Faleigh NC 27605 Richard Wilson, M.D.
Certified by
'h 729 Hunter St.
Apex NC 27502
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