ML20077P813
| ML20077P813 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 01/03/1995 |
| From: | Blake E GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#195-16180 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9501180257 | |
| Download: ML20077P813 (14) | |
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UNITED STATES OF AMERICAi
. 95 JAN -43 P3 :43-y NUCLEARREGULATORY COMMISSIONz i
' Before the Atomic Safety and I icancia Board.
OFFICE OF: SECRETARY.
DOCKETlHG & SERYlCE4
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-BRAHCIO l
lin the Matter of
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Docket Nos. 50-424-OLA-3 l
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50-425-OLA-3.
1 GEORGIA POWER COMPANY,
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et.al.
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. Re: License Amendment
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(Transfer to Southern Nuclear).
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- (Vogtle Electric Generating Plant,
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ASLBP No. 93-671-01-OLA-3.
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l MOTION BY GEORGIA POWER COMPANY AND'JAME3' JOINER TO OUASH THE SUBPOENA OF JAMES JOINER' j
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Introduction
-l Pursuant to 10 C.F.R. { 2.720(f), Georgia Power Company (" Georgia Power") and James -
Joiner move to quash the subpoena issued on behalf ofIntervenor on December 27,1994, for the I
appearance and testimony of Mr. Joiner. This subpoena should be quashed because it is unrea-sonable, and neither Georgia Power nor Mr. Joiner has been provided any information indicating i
that the testimony that Intervenor. intends to elicit is relevant or necessary to this case. The sub-poena of Mr. Joiner appears to be nothing more than an attempt to disrupt Georgia Power's representation in this proceeding, a tactic that Intervenor's counsel has employed before in other proceedings and that should not be tolerated in this proceeding. In addition, the subpoena has not been properly served.
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Forcing to counsel to testify is recognized as being extremely disruptive to proceedings and isjudicially disfavored. San Shelton v. American Motors Coro.,805 F.2d 1323,1327 (8th j
Cir.1986), citina'Hickman v. Taylor,329 U.S. 495, 513 (1947). Under Shelton and other appli-cable case law discussed, a subpoena for opposing counsel's testimony should only be permitted l
where the testimony of counsel is emcial to the proceeding and no other means exists to obtain
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the information. While Intervenor's concealment of the subject matter of the testimony prejudices our ability to address this standard fully 8 is inconceivable to us that Mr. Joiner could possess any i
1 cmcialinformation unattainable from the dozens of witnesses that Intervenor intends to call in this proceeding. Consequently, and in view of the profound and extremely disruptive effect that the l
l subpoena would have on this proceeding and the schedule, the subpoena should be quashed.
II. The Subpoena is Unreasonable l
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The Commission's Rules of Practice, at 10 C.F.R. 2.720(f) authorizes the Licensing Board to quash any subpoena that is unreasonable. In addition, the Board also has the power "to l
limit the number of witnesses whose testimony may be cumulative," and "to strike argumentative, repetitious, cumulative, or irrelevant evioence." 10 C.F.R. 2.757(a), (b). Sac alEl 10 C.F.R. Q j
2.718; Statement of Policy on Conduct of Licensing Proceedings. CLI-81-8,13 N.R.C. 452 (1981).
Mr. Joiner is the senior attorney at Troutman Sanders responsible for the representation of i
Georgia Power in this proceeding. Any relevant information he may possess has been obtained i
through his representation of Georgia Power and in all likelihood through privileged attorney--
client communications. Requiring Mr. Joiner to divulge information he has obtained through his j
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representation of Georgia Power, and in particular the substance of any privileged communica-tions, will infringe upon this attorney-client relationship and potentially impede the full and candid =
communications that are necessary between an attorney and his client, Funher, requiring Mr.
Joiner to appear and testify will distract from and intermpt his preparation for trial. In shon, the.
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subpoena is inherently unreasonable. -
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Although Intervenor made no attempt in his motion for the subpoena to alert the Licensing '
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Board of any potential prejudice to Georgia Powers representation, upon learning that the sub-l poena had been issued, Intervenor immediately wrote to Georgia Powers counsel assening the belief that Mr. Joiner must now withdraw from this proceeding. See attached letter from M.
Kohn to E. Blake and D. Lewis (Dec. 27,- 1994);. Funher, in the same letter, Intervenor indicates l
that he intends to request that all witnesses, including Mr. Joiner, be' sequestered during the hear-
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. ing. Presumably, this would preclude Mr. Joiner from panicipating in the hearing. _ Based on l
these assenions by Intervenor, before the ink on the subpoena was even dry, Georgia Power be-lieves that Intervenor foresaw that the subpoena would interfere with Mr. Joiner's representation -
l in this matter, and intended this prejudicial effect.
L Georgia Power's belief that the subpoena is nothing more than a tactic to interfere v>ith '
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Georgia Powers representation is reinforced by Intervenofs counsel's repetitive use of such tac-tics in other proceedings. Intervenofs counsel has employed similar tactics to attempt to disrupt the attorney-client relationship in both the Hobby and the Mosbauah proceedings before the l
Department of Labor.E These tactics are unacceptable, f
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Hobby v. Georgia Power Company. 90-ERA-30, Complainant's Motion to Disqualify Respondent's Counsel Footnote continued on next page 3
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The dubious nature and intent ofIntervenor's subpoena are underscored by Iritervenor's purported reluctance to disclose the intended subject matter of the testimony to be elicited from
.l Mr. Joiner. Intervenor has not identified in the subpoena, or the in prior motion for the subpoena, any reason why Mr. Joiner's testimony is needed, or even relevant. Instead, Intervenor has appar-ently filed a cross-examination plan ill camera, effectively denying Georgia Power the opportunity i
to respond. Georgia Power submits that this n parte procedure is inappropriate, and that Geor--
gia Power should be provided an opportunity to address any relevance showing that Intervenor -
l purpons to make. Such a response may well demonstrate that any grounds advanced by Interve-i I
nor are pretextual. Funher, Intervenor has misrepresented facts throughout this proceeding, and in light of Georgia Power's opposition to the subpoena, Georgia Power submits that Intervencr's representations should not be accepted without the scrutiny of all parties, particularly where, as here they may profoundly affect Georgia Power's representation in this proceeding and its ability to prepare for the hearing.
i Georgia Power questions Intervenor's motive in submitting this information in an a parts i
fashion. While Intervenor has intimated that this procedure is necessary to maintain " surprise" l
during cross-examination, Intervenor was in fact willing during a break at the prehearing confer-ence on December 14 to disclose to Mr. Joiner, in Mr. Lewis' presence, that it wished to question Mr. Joiner on the preparation of testimony on performance indicators. While it is certainly possi-ble that Intervenor's counsel was being misleading, if this is indeed the topic addressed in the cross-examination plan, it suggests that Intervenor does not have a real interest in surprise.
Footnote continued from previous page (June 4,1990), Allen L Mosbaugh v. Georgia Power Company. 91-ERA-II, Complainant's Motion to Disqualify Respondent's Counsel (Dec. 9,1991). This tactic has also been employed by Intervenor's counsel's firm in other proceedings. Sgg Norman v. Niacara Mohawk Power Coro.,873 F.2d 634,638-39 (2d Cir.1989).
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I If the intended subject matter is the preparation of testimony on performance indicators, j
i l Mr. Joiner's testimony is also clearly unnecessary. Intervenor has listed numerous witnesses who,
,j can testify on this matter, including Intervenor's own witnesses Mr. Hobby and Mr. Barker, and '
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. Mr. Dahlberg, Mr. Mcdonald, Mr. Evans, Mr. McCoy, Gerald Johnson, and Donald Proctor; I
The August 10,1989 meeting, for example, was attended by Mr. Dahlberg, Mr. Mcdonald,: and -
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. Mr. Evans. Mr. Joiner's testimony would simply be redundant.. In these circumstances, requiring
.I Mr. Joiner to testify in a manner potentially interfering with his representation of Georgia Power '
in this proceeding is totally unjustifiable.
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An order quashing the subpoena of Mr. Joiner is supported by the practice of the federal-1 1
courts concerning the deposition of opposing attorneys.! While the vast majority of applicable cases concern attempts to elicit testimony of opposing counsel in depositions rather than at trial, i
the reasonmg underlying the reported decisions is fully applicable to the latter situation.E In addi-tion, these cases relating to depositions have been relied upon in afHrming a trial court's refusal to '
allow a party to call the opposing attorney as a witness at a' hearing. United States v. All Funds 1
on Deposit, 801 F. Supp. 984, 996 (E.D. N.Y.1992), bed, 6 F.3d 37 (2d Cir.1993).
The great weight of recent authority on this issue recognizes that deposing an opposing at-torney raises very troublesome and disruptive issues, and that such depositions should therefore
{
- The vast majority of cases address depositions because any real interest in cliciting testimony of opposing coun-sel in civil litigation is almost always identified during discovery. It is practically unheard of for a party to an-nounce for the first time a few weeks before the hearing, as Intervenor has done here, that a senior attorney representing the opposition will be called as a witness.
E in fact, if anything, the standard for allowing a party to subpoena trial or hearing testimony from opposing counsel should be stricter than the standard for requiring counsel to submit to a deposition, because the scope of al-lowable discovery is ordinarily far broader (and therefore more general and less adversarial) than the scope of esi-dence admissible at trial, and there is greater likelihood that requiring trial testimony would lead to a disruption of '
the attorney's ability to prepare and condact the client's case.
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be allowed only in vary rare circumstances. Sn, eg, Shelton'v: Ammican Motors Corp, 805
' F.2d 1323,1327 (8th Cir.1986)(Practice of taking opposing counsel's deposition "should be L
l employed only in limited circumstances."). Sg 3180 M&R Amnaamanta Corn. v. Blair,142 l
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' F.R.D. 304,305 (N.D. Ill.1992) (Because deposing opposing attorney is "a drastic measure," a.
i motion to take such a deposition "is viewed with a jaundiced eye and is infrequently prope'r")!
Harriston v. Chicano Tribune Co. 134 F.R.D. 232,233 (N.D. Ill.' 1990) ("The couns have not
.I looked with favor upon attempts to depose opposing counsel.") Shehon, in panicular, rests on.
the general principle that _" forcing trial counsel to testify.. ; has long been discouraged.'" 805 '
~ F.2d at 1327.
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The concerns which have led courts to place limits on such depositions have been clearly.
articulated by the couns:
Taking the deposition of opposing counse! not only disrupts the ad-versarial system and lowers the standards of the profession, but it -
also adds to the already burdensome time and osts of the litigation.
It could lead to additional pretrial delays to resolve work-product -
l and attorney client objections, and delays to resolve collateral issues I
raised by the attorney's testimony. Finally, the practice of deposing -
opposing counsel detracts from the quality of client representation.
Counsel should be free to devote his or her time and effons to pre-I paring the client's case without 6 of being interrogated by his or i
her opponent. Mdreover, the chilling effect that such practice will.
have on the truthful communications from the client to the attorney l
is obvious.
Kelling v. Bridgestone/Firestone. Inc. 153 F.R.D; 170,171 (D. Kan.1994) (citations omitted).*
The practice also could lead to the haressment of, and perhaps attempts to disqualify, opposing
- Sgg als Shelton,805 F.2d at 1327 (forcing trial counsel to testify disrupts the adversarial system, lowers the '
standards of the profession, and adds to the already burdensome time and cost oflitigation); M&R Amusements.
- 142 F.R.D. at 305 (deposing an opposing attorney " creates a side-show and diverts attention from the merits of the l-Footnote continued on next page
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counsel attorney. N.F. A. Corp. v. Riverview Narrow Fabrics. Inc.. I17 F.R.D. 83,85 (M.D.N.C.) 1987). As discussed above, all of these concerns apply here as well.
In light of these serious concerns, the courts have generally required "an extremely high showing of necessity" before allowmg opposmg counsel to be deposed. N F. A. Coro.,117 I
F.R.D. at 86. "Because deposition of a party's attorney is usually both burdensome and disrup-tive, the mere request to depose a party's attorney constitutes good cause for obtaining a.. pro-l tective order unless the party seeking the deposition can show both the propriety and need for the deposition." E at 85. At a minimum, the requesting party must show that "(1) no other means l
exist to obtain the information than to depose opposing counsel'; (2) the information sought is l
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relevant and non-privileged; and (3) the information is crucial to the preparation of the case."
Shelton, 805 F.2d at 1327 (citations omitted).2 Where the testimony sought is cumulative or du-plicative, the oppressive and prejudicial effects of requiring an opposing attorney to testify, and i
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the potential disruption of the proceeding, warrant protecting the attorney, Marco Island Part-nm,117 F.R.D. at 419-20; Walker v. United Parcel Servs., 87 F.R.D. 360,361-62 (E.D. Pa.
1980).
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Intervenor should be required to satisfy this same test before Intervenor is allowed to j
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force Mr. Jomer to testify at the hearing. For the reasons discussed above, Intervenor has not, I
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Footnote continued from presious page case" and "has a strong potential for abuse"); Harriston.134 F.RD. at 233; West Peninsular Title Co. v. Palm Beach County.132 F.RD. 301,302 (S.D. Fla.1990); Niacara Mohawk Power Corn v. Stone & Webster Ene'n Cgg 125 F.RD. 578, 593 (N.D.N.Y.1989); Marco Island Partners v. Oak Development Coro.. I17 F.RD. 418, 419-20 (N.D. Ill,1987).
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t See alsq Kelling.153 F.R.D. at 171; Doubledav v. Ruh.149 F.RD. 601,613 (E.D. Cal.1993); M&R Amuse-ments,142 F.R.D. at 305-06; ljarriston.134 F.R.D. at 233; West Peninsular Title.132 F.R.D. at 302-03; Niagara l_
Mohnh,125 F.R.D. at 593; N F. A. Corn.,117 F.R.D. at 86.
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because it cannot, make such'a showing. As we have discussed, Mr. Joiner's testimony regarding I
l L the preparation of testimony on perfonnance indicators is not only not " crucial" to Intervenor's y
case, it is not even necessary to 'that case given the availability of numerous other witnesses to ' es-t tify on that subject. For the same reason, Intervenor cannot' come close to demonstrating that no '
1 other means exist to present this inft rmation at the hearing. Finally, any relevant information Mr.
q Joiner possesses was obtained through h% representation of Georgia Power and is almost cer-tainly privileged.' In short, Intervenor simplyennot demonstrate the level of extreme necessity which would justify the burden and disruption that requiring Mr. Joiner to. testify _would be sure :
I to cause.
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III. The Subpoena Has Not Been Properly Served.
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l The subpoena should also be quashed because it has not been properly served.; Under 10 j
C.F.R. Q 2.720(c), service of a subpoena must be made by delivery.to the person named in it and by tendering the fees for one days attendance and mileage. The subpoena in question has not j
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been personally delivered (as the rule is understood to require)' to Mr' Joiner, and there has been l
no tender of the requisite fees.
10 C.F.R. Q 2.720(c) is patterned after the Federal Rules of Civil Procedure and is nearly l
identical to Fed. R. Civ. P. 45(b)(1).E Like 10 C.F.R. { 2.720(c), Rule 45(b)(1) requires that sub-L
'i poenas be served "by delivery." The majority view, and indeed the weight of authority, interprets -
this provision as requiring " personal delivery " 5A Moore's Federal Practice Digest states:' " Serv-l ice is accomplished by personal delivery to the pe son named in the subpoena." Moore's Federal.
- Prior to 1991 amendments. the text of the current Fed. R. Civ. P. 45(b)(1) was found in subsection (c) of Rule
- 45. Thus, applicable case law prior to 1991 refers to Fed. R. Civ. P. 45(c).
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Practice Digest, T 45.05[1) (2d ed.1994). Wright and Miller similarly states, " Personal senice is required." "[I]t is not sufficient to leave a copy of the subpoena at the dwelling place of the wit-ness." 9 C. Wright & A. Miller, Federal Practice and Procedure, 2461 (1971).I And the U.S.
Court of Appeals for the District of Columbia Circuit has held that the rule "does not permit any form of mail senice, nor does it allow service of a subpoena merely by delivery to a witness' dwelling place. Thus, under the Federal Rules, compulsory process may be served upon an un-willing person only in person." F.T C v. Coinpagnie De Saint-Gobain-Pont-A-Moussqtl,636 F.2d 1300,1312-13 (D.C. Cir.1980).
The last sentence of 10 C.F.R. 2.720(c) also shows that the " delivery" means personal delivery. That sentence allows service of a subpoena by registered mail when a subpoena is issued on behalf of the Commission. If delivery by any means were permitted by the second sentence of j
section 2.720(c), this " registered mail" exception in the last sentence would be meaningless. Since i
legal provisions should always Le interpreted to give meaning to all terms, see. e e.. Office of Consumers' Counsel v. FERC,733 F.2d 206,219-20 (D.C. Cir.1986); 2A Norman J. Singer, Statutes andjit.atul.ory Constmetion 6 46.06 (1992), the special authority to serve by registered mail a subpoena issued on behalf of the Commission clearly implies that other subpoenas may not i
be served by registered mail.L i
S.ge ghg Whitmer v. Lavida Charter. Ine_,1991 U.S. Dist LEXIS 17177 tE.D. Pa., Nov. 25.1991); Yizar v.
Wiccins.1991 U.S. Dist LEXIS 5679 (N.D. Ga., April 18,1991); Khachikian v. B ASF Coro.,1994 U.S. Dist LEXIS 2881 at 2 (N.D.N.Y. March 4,1994); Benford v. Amprican Broadcastine Co. Inc. 98 F.RD. 40,41 n.5 (D. Md.1983); In te Johnson &)ohnson,59 F.RD.174,177 (D. Del.1973); Conanicut Investment Co. v. Coopers
& Lsbrand.126 F.RD. 461. 462 (E.D.N.Y.1992); Gillam v. A. Shvman. Inc. 22 F.RD. 475,479 (D. Ala.1958).
Contra. Doe v. Hersemann,155 F.RD. 630,631 (N.D. Ind. May 26.1994).
L This analysis is not afTected by 10 C.F.R $ 2.71l.'. which governs service of papers in general (such as the ex-change of pleadings !)etween the panies). Specific requirements in a agulation takc precedence over general pro-l visions. See. e c.. Washington Water Power Co. v. FERC. 775 F.2d 305,323 (D.C. Cir.1985); 2B S_tatutes and Footnote continued on next page 9
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In this case, the subpoena for Mr. Joiner was sent by Federal Express to the Troutman 1
Sanders offices in Atlanta. It was not specifically addressed to Mr. Joiner. Neither the provision ;
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. of the subpoena to the Troutman Sanders law offices nor mailing by Federal Express satisfy the -
personal delivery requirement. Sm Reed v. Iowa Marine & Renair Coro.,1993 U.S. Dist.' LEXIS
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1107 (E.D. La.1993) (Fed. R. Civ. P. 45 does not permit service of subpoenas by sending them Federal Express); In re Johnson & Johnson. 59 F.R.D.174 (D. Del 1973) (service to a registered -
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agent for a corporation did ~not fulfill requirement for personal service on individuals who also l
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happened to be officers of the corporation.).2'~
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I Intervenor's subpoena of Mr. Joiner was also not properly served because Intervenor :
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failed to' tender the requisite fees for attendance and mileage. 10 C.F.R: { 2.720 unequivocally re--
l quires that such fees be tendered as part of the service. This provision is'taken verbatim from-Fed. R. Civ. P. 45(b)(1), which has also been construed as requiring the simultaneous tendering of j
the fees. Subpoenas tendered without such fees are invalid. CF&I St' eel Coro; vi Mitsui & Co..
h,713 F.2d. 494,496 (9th Cir.1983); Lone k United States,1990 U.S. Dist. LEXIS 4130 (D.
l Colo. April 5,1990); 5A Moore's Federal Practice Digest,145.06[1] (2d ed.1994); 9 C. Wright
& A Miller, Federal Practice and Procedure { 2461 (1971).
4 Footnote continued from presious page Statuton Construction j $10.05. Funher, section 2.712 is similar to Fed. R. Civ. P. 5. governing senice of plead-ings and other papers. Rule 5 has never been interpreted as eliminating the more spectfic wnice requirements in 1 Ru.e 45.
t' The fact that the subpoena was issued by the Licensing Board at Intervenor's request does not make the sub-poena one issued on behalf of the Ct>mmission,' CL Tedder v. Odel. 890 F.2d 210,212 (9th Cir.1989), and conse-quently senice by registered mail was not an available method l
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IV. Concitision For all of the reasons stated above, the subpoena for James Joiner should be quashed. The.
subpoena has the potential of significantly disrupting this proceeding, Georgia Power's representa-i tion, and its ability to prepare for hearing.
Respectfully submitted, I
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Ernest L. Blake, Jr.
t David R. Lewis SHAW PITTMAN POTTS & TROWBRIDGE 1
2300 N Street, N.W.
Washington, D.C. 20037 l
(202) 663-8000 l
James Joiner
+
John Lamberski l
i TROUTMAN SANDERS j
Suite 5200 600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216 l
(404) 885-3360-t Dated: January 3,1995 l
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t e830945 / DOCSDCI 11 l
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j 00CKETED January 9MRE95 l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION JAN -4.P3 :43 Before the Atomic Safety and Licensing Board 0FFICE OF SECPETARY DOCKETlHG & SERVICE BRANCH In the Matter of
).
Docket Nos. 50-424-OLA-3
)
50425-OLA-3 GEORGIA POWER COMPANY,
)
etal.
.)
Re: License Amendment
)
(Transfer to Southern Nuclear)
(Vogtle Electric Generating Plant,.
)
Units 1 and 2).
)
ASLBP No. 93-671-01-OLA-3 l
CERTIFICATE OF SERVICE I
I hereby certify that copies of " Motion By Georgia Power Company and James Joiner j
to Quash The Subpoena of James Joiner," dated January 3,1995 were served upon the persons l
listed on the attached service list by deposit in the U.S. Mail, first class, postage prepaid, or'
-l where indicated by an asterisk by hand delivery, this 3rd day of January,1995.
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David R. Iewis Counsel for Georgia Power Company l
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78566-Ec; / DOCCDC1 I
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O 9'
e-UNITED STATES OF AMERICA.
NUCLEAR REGULATORY COMMISSION Before the Atamic Safety nad I icaa=iae named In the Matter of
).
Docket Nos. 50-424-OLA-3 :.
)
' 50-425-OLA-3 GEORGIA POWER COMPANY,
)
etal.
.)
Re: -License Amendment
.)-
. (Transfer to Southern Nuclear)?
(Vogtle Electric Generating Plant,.
')
Units 1 and 2)
)
.- A S L B P N o. 93-671-01-OLA-3 '
SERVICE LIST
- Administrative Judge
- Dimetor,
- Peter B. Bloch, Chairman Environmental Pratactian Division.
. Atomic Safety and Licensing Board Department of Natural Resources U.S. Nuclear Regulatory Commission 205 Butler Street, S.E., Suite 1252 Washington, D.C. 20555 Atlanta, Georgi.s 30334_
Administrative Judge Stewart D. Ebneter James H. Carpenter Regional Adminitrator, Region II Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 933 Green Point Drive 101 Marietta Street, N.W., Suite 2900 Oyster Point Atlanta, Georgia 30303 Sunset Beach, N.C. 28468 Administrative Judge Office of the Secretary
- Thomas D. Murphy Att'n: Docketing and Service Branch Atomic Safety and Licensing Board U.S.
U.S. Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
- Michael D. Kohn, Esq.
Office of Commission Appellate Adjudication Kohn, Kohn & Colapinto U.S. Nuclear Regulatory Commission 517 Florida Avenue, N.W.
Washington, D.C. 20555 Washington, D.C. 20001
- *Mitzi Al. Young, Esq.
Carolyn F. Evans, Esq.
- Charles Banh, Esq.
U.S. Nuclear Regulatory Commission -
" John T. Hull, Esq.
101 Marietta Street, N.W., Suite 2900
. Office of the General Counsel Atlanta, Georgia 30323-0199 One White Flint North Stop 15B18 U.S. Nuclear Regulatory Commission
- Washington, D.C. 20555 i
Adjudicatory File Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555
'9359-FC4 / 300SDC1 I
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