ML20081L348

Intervenor Response to Licensee Motion to Limit Use of Deposition Testimony During Phase Ii.* Intervenor Objects to Util Request for Board to Order Intervenor to Transcribe Depositions for Deponent.W/Certificate of Svc & Svc List

ML20081L348
Person / Time
Site:	Vogtle
Issue date:	03/13/1995
From:	Kohn M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	Atomic Safety and Licensing Board Panel
References
CON-#195-16496 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9503300162
Download: ML20081L348 (7)

Text

-

. 3; - -. -

h(bh fE .

[ 00CETED -

a,e mc March 13, 1995

^ '95 MAR 15 ?fd 29 UNITED STATES OF AMERICA-  ;

NUCLEAR REGULATORY. COMMISSION ' ' -' '

l ATOMIC SAFETY AND LICENSING BOARDA9!  !

.-(( t l'

Before Administrative Judges:

Peter:B. Bloch, Chair. ~=

Dr. James H. Carpenter Thomas D. Murphy- ,

)

In the' Matter of )

). Docket Nos.'50-424-OLA-3 *

. GEORGIA POWER COMPANY ) 50-425-OLA-3 21 al , ) '

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

Plant, Unit 1 and Unit 2) ) -

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

INTERVENOR'S RESPONSE TO LICENSEE'S MOTION TO LIMIT THE USE OF DEPOSITION TESTIMONY DURING PHASE II  ;

I On March 1, 1995 Georgia Power Company (" licensee"). filed a motion seeking to require Intervenor to transcribe depositions 1 before March 20, 1995 and furthermore to require Intervenor to '

file with the Board all depositions taken at 'Intervenor's i instance whether or not Intervenor transcribed.the deposition. ,

Intervenor has a constitutional right to confront a witness with prior statements. In form, Licensee's motion is aimed at curtailing Intervenor's right to confront a witness.with a prior deposition statement. The decision and timing of transcribing a ,

deposition should not be determined by the party with the most resources and the greatest desire to' preclude deposition testimony from the hearing.

a 9503300162 950313 i '

PDR ADOCK 05000424 - -

3 60d O PDR i '

i

1 i

1. Filina of Depositions i

Licensee seeks an order' requiring the party at whose i

instance thq deposition was taken.to submit a transcript of a deposition with the Board and serve copies on the other parties.

s -

7 The overwhelming number of' depositions'were taken at the ,

insistence of Intervenor although the overwhelming number of -

. depositions ordered to date were ordered by licensee and NRC l staff. Licensee's request to shift the burden of filing the depositions with the Boar'd to Intervenor when he did not seek to transcribe a deposition conflicts with the plain meaning of 10-S 2.740a(e).

1 C.F.R. Pursuant to S 2.740a (e), the party who i i

transcribes a deposition bares the burden and responsibility of-filing it with the Commission. There is absolutely no indication i I

or logical. reason to place this burden on the party.at whose insistence a deposition occurred. 10 C.F.R. S 2.740a(g) i specifically provides that a " party shall not be deemed toLmake a l person his own witness for any purpose by taking his. deposition." >

Under 10 C.F.R. S 2.740a(e) and (g), the burden of filing the deposition rests with the party at whose insistence the 1 deposition is transcribed regardless of which party initiated the l deposition. Ir.decd , the' original of the transcribed depositions j ordered by other parties is not in the possession of Intervenor -

or his counsel. It is Intervenor's understanding that the party who ordered the deposition controls the original and is therefore i

obligated to file it with the Board.

i i

2  :

l t

as emi m p +&M - 5 J JJ 4- sm -pd_i y. a.4d ma- -- _ De w pak 5 4

a s

2. Intervenor's' Right to Conduct '

Meaningful Cross Examination of a Witness Licensee next seeks'an~ order of the Board essentially- '

requiring Intervenor to transcribe depositions and present them to the deponent fo'r signature by March 20, 1995 or else loose his

.right to use a deposition transcript for the purpose of cross

- examination of a witness. Intervenor strenuously objects to this request as an abridgment to Intervenor's Constitutional 1y protected due process' rights. Parties to this proceeding have 4

the right to cross examine witnesses. A fundamental tenant of cross examination is the right to confront a witness with a prior inconsistent statement.2 Intervenor has the right to believe that a witness' testimony will square with the testimony given during a deposition taken in this proceeding. Should prefiled testimony.or other factors lead Intervenor to believe that an ,

adverse witness ha! 1 hanged his testimony or can otherwise demonstrate a lack of credibility based on a prior inconsistent j '

statement, Intervenor is' free to confront that witness with a prior statement. Requiring Intervenor to transcribe a deposition T

2 Egg Rule 613(a) of the Federal Rules of Evidence ("In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel") .

Moreover, the reading and signing of a deposition does not ,

control its admissibility because depositions are admissible at the hearing whether or not the deposition is signed. Sgg 10 C.F.R. S 2.740a(e) and (g). The deponent has the right to read and sign a  :

deposition only after it is transcribed. There is no requirement that a deposition be transcribed prior to the commencement of a hearing or before a witness testifies. ,

3 i

r I

j

prior.to.the hearing only serves to constrain Intervenor's due i processarights; exclude relevant and material evidence; hamper l

.the truth-finding function of the tribunal; and will only serve

~

to provide' license.e aide. Finally, a party can be'said to be-r prejudiced by the timing of when a deposition'is transcribed. ,

Any party can eliminate surprise by paying to transcribe any  !

i deposition at any point in time. Moreover, there should be no i

surprise because every party attended every deposition taken in this proceeding.

Licensee asserts that the Board, under 10 C.F.R. 2.718, has the authority to limit a party's right to use a deposition  ;

transcript at the hearing. This assertion is inconsistent with-the Board's duty to allow a party to fully present a case; to present an effective cross-examination; and would mar the truth- -

finding function of the tribunal. There is no identified right to exclude relevant cross examination evidence from the record. I Licensee is on notice that Intervenor can rely on a deposition and no prejudice to any party stems from Intervenor's transcription of a deposition at any time prior to hearing. f i

Finally', during the " Phase'I" portion of this proceeding, Intervenor agreed to transcribe depositions prior to the hearing ,

so that the' witness could read and sign depositions and provide f corrections to Intervenor before the hearing. The record i

demonstrates that licensee. failed to submit corrections it received from the witnesses and did not even make the existence ,

of the corrections known to Intervenor until after witnesses were-4 7

l 1

I i

w m, ,, , , , - - -,m - - - - , . - . . - , -

i y

confronted with the deposition transcript. Licensee does not have clean hands to bring the motion.

+9, CONCLUSION For the foregoing reasons, Licensee's motion should be denied.

Respectfully submitted,

/h%  %.

Michael D. Kohn Kohn, Kohn and Colapinto, P.C.

517 Florida Ave., N.W.

Washington, D.C. 20001 (202) 234-4663 Attorneys for Intervenor Dated: March 13, 1995 C:\ FILES \301\DEP 5

00CICETED March 13,il993C UNITED STATES OF AMERICA N NUCLEAR REGULATORY COMMISSION '95 - t1A2 15 A ' C9. t ATOMIC SAFETY AND LICENSING BOARD

) 0FFli.h O SE DE TARY )

In the Matter of ) 00CKEIllm.j1trN;CE *

) Docket Nos. 50-424-OLN M '  !

GEORGIA POWER COMPANY ) 50-425-OLA-3  ;

g1 AL., ) >

) Re: License Amendment ,

(Vogtle Electric Generating ) (transfer to Southern Nuclear) -

Plant, Unit 1 and Unit 2) ) ,

) ASLBP No.- 93-671-01-OLA-3 j CERTIFICATE OF SERVICE  ;

I hereby certify that the document entitled Intervenor's Response to Licensee's Motion to limit the Use of Deposition ,

Testimony During Phase II has been served this March 13, 1995, by First Class mail on the persons listed in the attached service '

14.st (except that it was served by facsimile upon Judge Bloch). .

I]'{Ls1 A//% of M 7Q (

Mary Jand[4filmoth ,

KOHN, KOHN & COLAPINTO, P.C.

517 Florida Ave., N.W. .

Washington, D.C. 20001

-(202) 234-4663 i 4

F f

i e

i f

j

- . _ _ , ~ -

UNITED STATES OF AMERICA NUCL?AR REGULATORY COMMISSION ATOMIC 9AFETY AND LICENSING BOARD

_ )

In the Matter of )

) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY ) 50-425-OLA-3 gg al., )

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

Plant, Unit 1 and Unit 2) )

) ASLBP No. 93-671-01-OLA-3 SERVICE LIST Administrative Judge Administrative Judge Peter B. Bloch, Chair James H. Carpenter Atomic Safety and Licensing Board 933 Green Point Drive U.S. Nuclear Regulatory Commission Oyster Point Washington, D.C. 20555 Sunset Beach, NC 28468 Administrative Judge Charles A. Barth, Esq.

Thomas D. Murphy Office of General Counsel Atomic Safety and Licensing Board U.S. N.R.C U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 John Lamberski, Esq. Ernest L. Blake, Jr.  ;

Troutman Sanders David R. Lewis Suite 5200 SRAW, PITTMAN, POTTS &

600 Peachtree Street, N.E. TROWBRIDGE Atlanta, GA 30308-2216 2300 N Street, N.W.

Washington, D.C. 20037 office of the Secretary Attn: Docketing and Service U.S. Nuclear Regulatory Commic' ion Washington, D.C. 20555 Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555 C:\ FILES \301\ CERT.LIS