ML20077P576

Intervenor Motion Objecting to Admission of Corrections to Shipman Deposition Into Record.* Requests Board to Refuse Licensee Request to Issue Corrections to Shipman 940805 Disposition

ML20077P576
Person / Time
Site:	Vogtle
Issue date:	01/10/1995
From:	Kohn M GEORGIA POWER CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20077P581	List: ML20077P576
References
CON-#195-16216 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9501180172
Download: ML20077P576 (5)

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-DOCKETED  :

January 10, UNITED STATES OF AMERICA- .

- 95 'Jm 12_ AiO :04 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD OFFICE OF SECRETARY DOCKETHG & EUPliCE

) BRANCli In the Matter of ) ,

) Docket Nos. 50-424-OLA-3  ;

GEORGIA POWER COMPANY ) 50-425-OLA-3 et al., )

) Re: License Amendment (Vogtle Electric Generating ) (transfer to Southern Nuclear)

Plant, Unit 1 and Unit 2) ) -i

) ASLBP No. 93-671-01-OLA-3 .

INTERVENOR'S NOTION OBJECTING TO THE ADMISSION OF THE CORRECTIONS TO MR. SHIPMAN'S DEPOSITION INTO THE RECORD Pursuant to Rule 30 (e) of the Federal Rules of Civil ,

Procedure, Intervenor, Allen L. Mosbaugh, through counsel, moves this Honorable Board to refuse Licensee's request to issue  ;

corrections to Mr. Shipman's August 5, 1994 deposition. Rule j 3 0 (e) requires that corrections be filed within 30 days, and this Board specifically instructed Licensee, on August'5, 1994, to-file corrections. Licensee was on notice and, by failing to file a timely response, has waived its right to file substantive alterations to Mr. Shipman's deposition. j BACKGROUND j l

Mr. Shipman was deposed on August 5, 1994. In that ,

deposition he was questioned concerning to whom Mr. Hairston reported in 1990. Mr. Shipman's answer to the question was that "Mr. Hairston reported to Mr. Mcdonald and Mr. Mcdonald reported to Mr. Farley." Tr. 180-181. At the time this question was j i

asked there was no objection raised and no clarification or l l

correction of the answer was given. Then at the continuation of i

9501100172 PDR 950110 [3 ADOCK 05000424 PDR

this deposition on August 22, 1995, Mr. Shipman was asked to recall this question and answer sequence by Licensee's counsel Mr. Lamberski. Shipman 8\22\90 Dep. at 381.2 Mr. Lamberski then asked Mr. Shipman if he had "an understanding of how the organization existed at that time." Id. At this point Mr.

Michael Kohn, counsel for Intervenor, objected to the line questioning. Id. at 382. Judge Bloch, who was listening by telephone so that he could handle any disagreements, then instructed Mr. Lamberski to make a special filing of an affidavit to correct the prior record to which Mr. Lamberski indicated that he would. Id. at 383.

On December 6, 1994 (after failing to file a corrective affidavit) Licensee received Intervenor's prefiled testimony.

Attached thereto as Exhibit 10 are the relevant pages of Mr.

Shipman's deposition which Licensee had previously agreed to file  !

a special affidavit, but failed to do so.

On January 6, 1995 counsel for Intervenor reminded the Board that Licensee was instructed to file corrections to Mr. Shipman's deposition, but failed to do so. Hearing Tr. 1928, The Board indicated that, upon review, if there is any prejudice to Intervenor, the Board would institute an appropriate remedy.

Hearing Tr. 1928 ("If in fact there's some prejudice to Intervenor, we'll attempt to institute an appropriate remedy. So 2

A copy of the relevant pages of Mr. Shipman's August 22, 1994 deposition is appended hereto as Exhibit "A".

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I if there's good cause'for' prejudice from-the changes, we'll  ;

handle them that way").8 On January 7, 1995, over four months after Licensee agreed j to file an affidavit of correction, Licensee first provided ]

Intervenor with an unsigned sheet of paper allegedly containing [

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, Mr. Shipman's. correction'to his deposition' testimony. This j document ils not an affidavit of correction; is-not signed.by.Mr.- l l

Shipman; and'is completely prejudicial to Intervenor.2 l i

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A copy of hearing transcript pages 1926, line 24 to the end of page 1929 was, at the direction of the Board, provided to -

Intervenor. It is attached hereto as Exhibit "B". Intervenor nonetheless notes that at the' top of page 1927lMr. Blake refers to "our last exchange" concerning discussions regarding the -

admissibility of Shipman's deposition. Licensee's counsel has advised Intervenor that, at this time, the prior discussion referenced on page 1927 has not been located. Licensee's counsel agreed to further determine whether the above statement refers to an on-the-record discussion. j i

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, When responding to Intervenor's response to summary l i disposition, Licensee chastised Intervenor-for not being able to l

! provide a transcript of Mr. Shipman's deposition and went so far l

as to assert that Intervenor misstated the content of the ,

deposition testimony. Egg GPC's Motion to Strike Intervenor's  !

Response to GPC's Motion for Summary Disposition at'pp. 30-31

(" Georgia Power's counsel does not believe the transcript for such depositions will support Intervenor's assertions" that Mr.

Shipman " testified that it was his belief that on April 19, 1990, Mcdonald reported to Farley"). GPC's Motion to Strike misled the Board about the content of Shipman's deposition.

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ARGUMENT I. The Corrections Are Untimelv

a. Licensee failed to submit an affidavit as instructed by the Board.

l The Board instructed Licensee to make a special filing of an j affidavit to correct the first part of Mr. Shipman's deposition.

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This request was made over four months ago. Licensee's attempt to file corrections at this time is prejudicial and untimely.

l This is particularly so inasmuch as Licensee failed to file an affidavit as requested by the Board.

l l b. The time limit to sign the deposition has l also expired. t Federal Rule of Civil Procedure 30 (e)* imposes a time l constraint giving the witness 30 days in which to review and sign his deposition transcript from the time the deposition is submitted to him. It has been well over the required 30 day time limit and therefore corrections should not be admitted into the record of this proceeding.

If the defendant wishes to invoke the privilege accorded deponents by Rule 30 (e) , however, he must comply with the instructions with the rule gives for making changes in deposition testimony.

Luotic v. Thomas, 89 F.R.D. 639, 641 (1981).

c. The witness failed to state reasons for corrections When a witness makes corrections to his deposition he must also state the reasons for each correction. Fed.R.Civ.P. 30 (e).

The two sheets of corrections for Mr. Shipman's deposition do not

• Rule 30 (e) expands upon 10 C.P.R. section 2.740a(e).

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I containLthe reasons'for each correction made. failure to follow Rule 30 (e) ' when offering the correction further requires the Board to reject the alleged corrections. gag Luotia, supra. j II. The Corrections Are Not Necessarv For A Comolete Record i

The admissibility of the original answer is governed by the rules of evidence, not the errata sheet. Wanke v. Lvnn's Transo. i C2&, 836 F.Supp. 587, 593(N.D. Ind. 1993).- It is Intervenor's l understanding that Mr. Shipman returned to work some time ago.

There would appear to be no reason why Mr. Shipman could not make l corrections and issue an affidavit' explaining his changes.

C9NCLUSION For the above stated reasons, Intervenor requests that this motion be granted and the correction sheets for Mr. Shipman's deposition not be admitted into the record of this proceeding.

3 In any case, Intervenor has an absolute right to include the  !

original, unaltered answers,into the record regardless of whether an errata sheet is issued.

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Respectfully submitted, t /

l Michael D. Kohn Mary Jane Wilmoth ,

KOHN, KOHN & COLAPINTO, P.C. I 517 Florida Ave., N.W.

l Washington, D.C. 20001 (202) 234-4663 C:\ FILES \301\$ HIP.DEP i

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