ML20097C557
| ML20097C557 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 09/13/1984 |
| From: | Blake E METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| SP, NUDOCS 8409170144 | |
| Download: ML20097C557 (11) | |
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September 13',1984
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Nb UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION e
Before the Atomic Safety and Licensing Board:
-In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289 SP
)
(Restart Remand on (Three Mile Island Nuclear
)
Management)
Station, Unit No. 1)
)
LICENSME'S MOTION TO COMPEL RESPONSES TO LICENSBE'S SECOND SET OF INTERROGATORIES On August 17, 1984, Licensee filed Licensee's Second Set of Interrogatories and Request for Production of Documents to Intervenor Three Mile Island Alert, Inc.
Three Mile Island Alert (TMIA) filed its response to Lic'ensee's Second Set of In-terrogatories on September 5, 1984.
TMIA's answers to a number of the interrogatories are in-complete and inadequate.
Accordingly, as further discussed below, Licensee moves the Board to issue an order compelling
' complete answers.
i Interrogatory No. 1 Licensee's Interrogatory No. 1 asks TMIA to identify its witnesses.
TMIA responds that it is not yet " prepared" to identify its witnesses and will not do so until after its dis-covery is complete.
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While'a. response that TMIA has-not selected any of its
-witnesses,Lifl truthful,-would be an acceptable answer, TMIA's response-implies that--it already knows or anticipates who some of L its witnesses: will be.
If so,;TMIA should identify these witnesses now, so.thatLLicensee may conduct depositions if nec-essary..For-TMIA to wait until after discovery is completed to
~ respond will unfairly deprive Licensee of this opportunity.
TMIA must answer this interrogatory to the extent it is now
- able.. Public Service'Co. of New Hampshire (Seabrook Station,
~
' Units.1 and 2), LBP-83-9, 17 N.R.C. 403, 406-407 (1983).
It must supplement its response when able.
See 10 C.F.R. S
. 2.714(e)(1).
- Accordingly, Licensee moves that the Board compel TMIA to answer Interrogatory No. 1 to the extent it is now able, and to
. supplement its answer by identifying additional witnesses at the time they are' selected.
' Interrogatory No. 2 In Interrogatory No.,2, Licensee asked TMIA to identify relevant documents in its possession.
TMIA responds by refer-
.r ng L censee to t e NRC Public Document Room.
TMIA argues i
i h
that the burden of deriving the information requested in this
. interrogatory is substantially the same for Licensee as it is
- for TMIA.
TMIA cites Fed. R.
Civ. P.
33(c).
TMIA's argument is frivolous and its citation is non-supporting.
It is not a ground.for objection that ~
n
information'is equally available to the interrogatcr; and it is not a ground for objection that the information is a matter of public record.
Petruska v. Johns-Manville, 83 F.R.D.
32, 35 (E.D.Pa. 1979), citing C. Wright & Miller, 8 Federal Practice and Procedure, S 2014 at 111 (1970).
Nor does Fed. R. Civ. P.
33(c), miscited by TMIA as support, hold to the contrary.
Rule 33(c) merely states that one may provide information requested in an interrogatory by 1) "specify[ing] the records" that contain the information and 2) " afford [ing] to the party serving the interrogatory reasonable opportunity to inspect" such records.
TMIA has not made available the documents whose identification is requested, nor does its referral to all docu-ments in the NRC public document room permit Licensee to ascer-tain this information.
TMIA also argues, "To the extent the interrogatory seeks information as to TMIA's counsel's investigation into the facts surrounding the Dieckamp mailgram issue, this information is privileged from disclosure under the work product doctrine."
Licensee's Interrogatory No.
2, however, does not seek informa-tion as to TMIA's counsel's investigation, but seeks the identity of documents in TMIA's possession.
Interrogatory No. 2 is a mundane interrogatory that does not invoke the work product privilege.
"The work product concept furnishes no shield against discovery, by interrogatories or deposition, of the existence or nonexistence of documents.
C.
Wright & Miller, 8 Federal Practice and Procedure, 5 2023 at - __
m
194 (1970).
The Comrcission's Rules of Practice,10 C.F.R. S 2.740(b)(1), "specifically allow questions concerning such things as-the existence, description, nature, custody, condi-tion and location of any books, documents or other tangible things."
Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 N.R.C.
- 317, 333-34 (1980).
Accordingly, TMIA's answer to this interrogatory is non-responsive and Licensee moves for an order compelling TMIA to identify the relevant documents it has in its possession or to make such documents immediately available for Licensee's in-spection.
Interrogatory No. 3 In Interrogatory No. 3, Licensee asks for the identifica-tion of documents which TMIA intends to offer as exhibits or use during cross-examination.
TMIA responds that it is not yet prepared to respond.
Licensee moves that TMIA be compelled to provide this information now to the extent it is presently able, and to supplement its response at the time additional in-formation becomes available.
See discussion of Interrogatory No. 1, above.
TMIA also asserte that identification of documents to be used during cross examination is privileged under the work product doctrine.
The work product privilege, however, applies only to the discovery of 1) documents or other tangible things,
_4 n
t-x 2)' prepared in anticipation of litigation or for trial, 3) by or for the objecting party or that party's representative. See C.F.R.
5 2.740(b)(2); Ped. R.
Civ.
P.
26(b). See generally Hickman v. Taylor, 329 U.S. 495 (1947).
TMIA does not indicate that any of the documents to which it is referring were pre-pared in anticipation of litigation.1/
Irrespective, the identity of documents,is always discoverable; and the identity of documents to be used during TMIA's cross examination is nec-essary to prevent surprise at trial and to permit Licensee to prepare adequately.
These are fundamental purposes of discov-ery'.
South' Carolina Electric and Gas Co. (Virgil C.
Summer Nu-clear Station, Unit 1), ALAB-642, 13 N.R.C.
881, 888 (1981);
See Seabrook, supra, LBP-83-9, 17 N.R.C. at 405, and references cited therein.
Licensee therefore moves that TMIA also be com-pelled to identify the documents it intends to use during cross-examination.
Interrogatory No. 4(c)
Interrogatory No. 4(c) asks TMIA to identify certain docu-ments.
TMIA identifies some documents, but then states:
' Numerous other interviews conducted in the 4
course of compiling NUREG-0760 contain relevant information.
TMIA refers GPU to all such inter-views conducted during the course of that inves-tigation, since the burden of deriving the f
i 1/
TMIA, as the party asserting the privilege has the burden L
to establish 4the existence of the privilege. Public Service Co. of New Hampshire (Seabrook Station, Units 1 L
and 2), LBP-83-17, 17 N.R.C.
490, 495'(1983); Long Island l
- Lighting Co. (Shoreham Nuclear Power Station, Unit No. 1),
L LBP-82-82, 16 N.R.C. 1144, 1153 (1982).
?s L :
(m
~
i I
k
'O.
information sought by this interrogatory is sub-stantially the same for GPU as it is for TMIA.
Rule 33(c), Fed.R.Civ.P.
TMIA's Response at 7.
As discussed with respect to Interrogatory No. 2 above, that-information is equally available to Licensee is not ground for objection.. Similarly, reference to " numerous other inter-views" and. citation to Fed.
R. Civ.
P.
33(c) is not an adequate response.
Accordingly, Licensee moves the Board to compel TMIA to identify'these other interviews, or to make the interview
-transcripts immediately available.
' Interrogatory No. 13 Interrogatory No. 13 asks TMIA to identify individuals who prepared or provided information used in preparing TMIA's First Set of Interrogatories to General Public Utilities.
TMIA states that "this information relates to the mental processes of TMIA a'ttorney and requests information on statements of po-tential TMIA witnesses."
TMIA asserts the work product privi-lege.
TMIA's response and objection are again frivolous.
The work product privilege applies to discovery of documents.
See discussion of Interrogatory No. 3 above.
It provides "no shield against discovery by interrogatories or deposition, of the facts that the adverse party's lawyer has learned, or the persons from whom he has learned such facts.
" C. Wright &
'A. Miller, 8 Federal Practice and Procedure, S 2023 at 194 c
.A '
.(1970).
10 C.F.R. 52.740(b)(1) specifically permits discovery of the " identity and location of persons having knowledge of discoverable matter."
The names of such persons are never privileged. Harrison v. Prather, 404 F.2d 267, 273-74 (5th Cir.
-1968); Edgar v.
Finley, 312 F.2d 533, 535-36 (8th Cir. 1963).
Accordingly, Licensee moves the Board to compel TMIA to respond fully to Licensee's Interrogatory No. 13.
Interrogatory No. 19 In Interrogatory No. 19, Licensee asked TMIA to identify individuals who provided TMIA with any of the documents identi-fied in response to Licensee's previous interrogatories.
Al-though this is a routine general interrogatory, TMIA objects on the grounds of irrelevance and work product privilege.
With respect to relevance, this interrogatory asks for the identity of persons who have or had discoverable documents or knowledge thereof.
Such an interrogatory is expressly counte-
.nanced under the Commission's Rules of Practice.
10 C.F.R. 5 2.740(b)(1).
It is unequivocally information that is rea-sonably calculated to lead to the discovery of admissible evi-dence.
See Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-196, 7 A.E.C. 457, 462 (1974).
With respect to TMIA's assertion of the work product priv-ilege, see Licensee's discussion of Interrogatory No. 13 above.
The work product privilege simply does not apply to an inter-
- rogatory requesting the names of persons who may have knowledge.-.
n
O of discoverable matter.
Moreover, such information certainly does not reveal "TMIA's counsel's trial preparation and trial strategy;" and TMIA's bald and incredible assertion to the con-trary does not satisfy TMIA's burden to establish the existence of the privilege.
Seabrook, supra, LBP-83-17, 17 N.R.C.
at 495, and cases cited therein.
Accordingly, Licensee moves the Board to compel TMIA to respond fully to Licensee's Interrogatory No. 19.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE rw l W. /!Y4, f f.
George F.
Trowbridge, P.C.
Ernest L.
Blake, Jr.,
P.C.
David R. Lewis Counsel for Licensee Dated:- September 13, 1984.-
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.RELATED CO;ggGM
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'84 SEP 14 A11 :14 EDw;".; 3h,n 8 RANCH September 13, 1984
. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
<In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart-Management Remand)
(Three Mile Island Nuclear
)
Station,-Unit No. 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Motion to Com-pel Responses to Licensee's Second Set of Interrogatories" were serted this 13th day of September, 1984, by hand delivery to the parties identified with an asterisk and by deposit in the U.S. mail, first class, postage prepaid, to the other parties on the attached' Service List.
I L/1.7%4.J.
Ernest L.
Blake, Jr.,
P.C.
?
I n
UNITED STATES OF AMERICA NUCLEAR REGULATOEY COMMTSSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In_the Matter
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289 SP
)
(Restart Remand on Management)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
SERVICE LIST' Nunzio J.
Palladino, Chairman Administrative Judge U.S. Nuclear Regulatory Commission John H.
Buck Washington, D.C.
20555 Atomic Safety & Licensing Appeal Board Thomas M.
Roberts, Commissioner U.S. Nuclear Regulatory Commission:
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555-Administrative Judge James K. Asselstine, Commissioner Christine N. Kohl
-~
U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Appeal L
Washington, D.C.
20555 Board U.S. Nuclear Regulatory Commissier.-
Frederick Bernthal, Commissioner Washington, D.C.
20555 l
'U.S.. Nuclear Regulatory Commission t
Washington, D.C.
20555
- Administrative Judge j
Ivan W.
Smith, Chairman j
.Lando W.
Zeck, Jr., Commissioner Atomic Safety & Licensing Board U.S. Nuclear' Regulatory Commission U.S. Nuclear Regulatory Commission!
Washington, D.C.
20555 Washington, D.C.
20555 L
Administrative. Judge
- Administrative Judge Gary J. Edles, Chairman Sheldon J. Wolfe i
. Atomic Safety & Licensing Appeal Atomic Safety & Licensing Board Board U.S. Nuclear Regulatory Commissior.
l U.S. Nuclear Regulatory Commission Washington, D.C.
20555
[
Washington, D.C.
20555 l
l l
.... _,,_..__.,,.....,_ _..~. _., _,_... _.,..
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~
~e,
- Administrative Judge Mr. Henry D. Hukill Gustave A. Linenberger, Jr.
Vice President Atomic Safety & Licensing Board,
GPU Nuclear Corporation U.S. Nuclear Regulatory Commission P.O. Box 480 Washington, D.C.
20555 Middletown, PA 17057 Docketing and Service Section (3)
Mr. and Mrs. Norman Aamodt Office of the Secretary R.D.
5 U.S. Nuclear Regulatory Commission Coatesville, PA 19320 Washington, D.C.
20555 Ms. Louise Bradford Atomic Safety & Licensing Board TMI ALERT Panel 1011 Green Street
~ U.S. Nuclear Regulatory Commission Harrisburg, PA 17102 Washington, D.C.
20555
- Joanne Doroshow, Esquire Atomic Safety & Licensing Appeal The Cnristic Institute Board Panel 1324 North Capitol-Street U.S. Nuclear Regulatory Commission Washington, D.C.
20002 Washington, D.C.
20555
- Lynne Bernabei, Esq.
G #*r ment Accountability.
Jack R.
Goldberg, Esq. (4) r Office of the Executive Legal 1555 Connecticut Avenue Washington, D.C.
20036 U.S NO ear Regulatory Commission Washington, D.C.
20555 Ellyn R. Weiss, Esq.
Harmon, Weiss & Jordan Thomas Y.
Au, Esq.
2001 S Street, N.W.,
Suite 430 Office of Chief Counsel Washington, D.C.
20009 Department of Environmental Resources Michael F. McBride, Esq.
505 Executive House LeBoeuf, Lamb, Leiby & MacRae P.O. Box 2357 1333 New Hampshire Avenue, N.W.
Harrisburg, PA 17120 Suite 1100 Washington, D.C.
20036 Michael W.
Maupin, Esq.
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, VA 23212 I
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