ML20081B178

Answer Opposing Util 831013 Motion for Order of Enforcement. Util Violated Order Several Times.Grounds for Requested Relief Nonexistent

ML20081B178
Person / Time
Site:	Diablo Canyon
Issue date:	10/17/1983
From:	Strumwasser M CALIFORNIA, STATE OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20081B167	List: ML20081B163 ML20081B178 ML20081B225
References
ISSUANCES-OL, NUDOCS 8310270348
Download: ML20081B178 (7)

Text

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r DOCMETED USNRC NUCLEAR REGULATORY COMMISSION __ , _

'83 1PT 26 P3:36

'BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL .BbARD In the Matter of )

) Docket Nos. 50-275 O.L.

PACIFIC GAS AND ELECTRIC COMPANY ) 50-323 0.L.

)

(Diablo Canyon Nuclear P,roject, )

Units 1 and 2) )

)

ANSWER OF GOVERNOR DEUKMEJIAN TO APPLICANT'S

" MOTION FOR ORDER OF ENFORCEMENT" i

on October 13, 1983, applicant Pacific Gas and Electric Company filed a document styled a " Motion for Enforcement of Order," seeking again to exclude the testimony of two of Governor Deukmejian's three witnesses. The Governor respectfully submits

that the motion is devoid of merit and should be denied.

i

Background

PG&E's complaints derive from a telephone conversation that began with a conference call placed by the Atomic Safety and Licensing Appeal Board to the parties to rule on the Governor's motion for modification of the hearing schedule and on PG&E's last effort to exclude the testimony of Mr. Hubbard and I

Prof. Apostolakis, entitled a " Motion for Sanctions." During

! that conference call, the board established the new hearing schedule and set deadlines for the deposition of the remaining witnesses of the Governor and Joint Intervenors. The board also 7

ordered that the interrogatory answers be supplemented by

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8310270348 831017 PDR ADOCK 05000275 Q PDR I _._ _.._ _ _ _ _ - . _ - . ._. _ _ . _ - _ , _ . - _- . . - . . _ - - - . _ . - - - - - - -

4 October 8. The parties then conferred among themselves to establish dates for the depositions and document production.

Evidently during' that conversation, counsel for PG&E, Mr. Norton, asked that the supplementary interrogatory answers be mailed to his home rather than his office. While counsel for the Governor recall an exchange between Mr. Norton and Mr. Reynolds in which the former gave his home address, none of the three attorneys representing the Governor understood the request to pertain to the interrogatory answers due on October 8.

Therefore, on October 7, the required supplemental answers were mailed to the parties -- including two Express Mail envelopes addressed, respectively, to Mr. Norton at his office in Phoenix and to Mr. Crane at PG&E headquarters in San Francisco.

Mr. Norton reports that his office in Phoenix was closed and he did not receive the Express Mail package before leaving for the Monday, October 10, deposition of Mr. Hubbard. The migrations of the Express Mail package addressed to Mr. Crane are not related by PG&E other than to assert that Mr. Norton did not receive a copy until Monday afternoon, during Mr. Hubbard's deposition.

( PG& E Motion , p. 3.)

PG&E also objects to the production of documents by the Governor in connection with Prof. Apostolakis' deposition. For Mr. Hubbard's deposition, the Governor produced 4,352 pages to PG&E on Friday, October 9, and no objection is made by PG&E to that procedure. However, Prof. Apostolakis had only a few pages of documents, which were brought with him to the deposition on 2.

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Tuesday, October 11. PG&E acknowledges that, because of the small volume, there was no " severe" prej udice from that timing (id., p. 5), but evidently seeks to exclude Prof. Apostolakis' testimony anyway, for reasons that remain unarticulated.

From the foregoing facts, PG&E perceives that counsel for the Governor " deliberately withheld discovery materials" (id., p. 5), which PG&E contrasts with the " good faith effort to comply" by Joint Intervenors (id., p. 3).

Analysis As a technical matter, the motion fails on its own terms. PG&E asks for an order enforcing the October 7,1983, order. That order imposes no requirement of any special service of interrogatory answers on the parties. Indeed, the order specifically limits the requirement that documents be in the hands of the parties on the specified dates to part 2 of the order. (Order of Oct. 7, 1983, p. 4, fn. 2.) The requirement to supplement interrogatory answers by October 8 appears in part 3 of the order. (Id., p. 6.) Stated simply, the Governor has complied with the October 7 order and applicant can invoke no portion of that order to further its repeated efforts to prevent the testimony of Mr. Hubbard and Prof. Apostolakis.

Although this technical answer meets both the spirit and the letter of the technical motion, it does not meet the most serious implication of the motion to counsel for the Governor:

that counsel " deliberately" withheld documents or failed to carry out a prior agreement. As to that charge, counsel deny any 3.

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~ intention to withhold from PG&E any-discovery to which it is entitled.and insists that, if they deviated from a prior agreement PG&E believes to have been made, they did so inadvertently and without knowledge that they were doing so.

The simple fact is that the arrangements made during the conference calls were done hastily and in an atmosphere of some confusion. While the parties were talking on the phone, counsel for the Governor were conferring among themselves on when and how l to meet the most time-consuming part of their newly imposed i

discovery obligation, the production of the thousands of pages of documents from the offices of Mr. Hubbard. While counsel remembered Mr. Norton giving his home address in an exchange between him and Mr. Reynolds, none of the three attorneys for the Governor understood that exchange to pertain to the mailing of supplemental interrogatory answers. Mr. Strumwasser assumed the t

request referred to the exchange of testimony, a matter of considerably greater prominence in the course of the conversation.1/

Such misunderstandings are merely the product of the extremely expedited schedule by which this case is being tried.

Given the enormous amount of work all the parties have had to do

1. PG&E correctly points out that this understanding is L inconsistent with other arrangements being made by the parties for the exchange of testimony. Nevertheless, it does accurately reflect counsel's state of mind, the product of the simple fact that the entire matter did not gain the attention necessary both to understanding what was sought and to reflecting on the relationship among the various arrangements being made.

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in the last six months, it is not surprising that each party has had difficulty complying with all the requests made of it, a point apparently understood by everyone except PG&E without the need to speculate about other parties' motives.

PG&E itself has deviated from the October 7 order it seeks to enforce against the Governor. While required to exchange with the parties' pre-marked copies of all exhibits it intends to offer in evidence (Order, p. 3), PG&E supplied the parties with only a few such exhibits with no explanation for the balance.- Nor has PG&E consistently met its discovery obligations.

W For example, when asked to identify all documents relied upon by certain of its witnesses, PG&E instead filed interrogatory answers uniformly stating , "To be provided during the testimony."

This response is decidedly less helpful to a party attempting to take a deposition than is the Governor's witness bringing his documents to the deposition rhther than sending them in advance.

Nevertheless, the Governor assumed the response was merely PG&E's effort to accommodate a discovery request to the practical needs it was facing and drew no inference about efforts to withhold or frustrate discovery. ,

l Only one further matter sbauld be noted in connection i

i with the instant motion: the absence of any prejudice to PG&E l

l from the conduct to which it objects. The three sets of 1

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interrogatory supplemental answers on which PG&E bases its motion consisted of less than 11 pages of answers.2/

Appended to the answers was another 11 pages of tables and an 8-page resume of Mr. Hubbard. A review of the documents themselves makes it clear that they could easily have been reviewed in a fraction of an hour. Indeed, Mr. Norton took time from the deposition of Mr. Hubbard to review the answers, and, while he was questioning the deponent, other PG&E personnel were reviewing the interrogatory answers in detail. The deposition continued until nearly 8:00 p.m. -- making Mr. Hubbard's deposition and that of Dr. Roesset the two longest depositions taken in this case.

Plainly, PG&E had. abundant opportunity to depose Mr. Hubbard, including adequate time to propound questions derived from the latest supplemental interrogatory answers.

It should be clear to the board that all of the parties have been laboring in earnest to meet all of their obligations and to prepare for the hearing on the expedited schedule that has been imposed. The events to which the applicant objects are N ,

nothing more than the product of misunderstandings like those i

i 2. Because the filings repeated the interrogatories whose answers were being supplemented, the documents themselves were longer. The 11-page figure refers to the cumulative length of the answers, exclusive of the interrogatories themselves.

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-that have afflicted all parties. No grounds exist for the relief sought by applicant.

Respectfully submitted, JOHN K. VAN DE KAMP, Attorney General of the State of California ANDREA SHERIDAN ORDIN, Chief Assistant Attorney General MICHAEL J. STRUMWASSER, Special Counsel to the Attorney General PETER H. KAUFMAN, SUSAN L. DURBIN, Deputy Attorneys General By I 7

MICJ(4ELJ. STRUMWASSER Attorneys for Governor George Deukmejian 3580 Wilshire Boulevard, Suite 800 Los Angeles, California 90010 7.

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