ML20197G765

Motion to Compel Further Written Response of B Ramberg or for Alternative Relief & Costs.Committee to Bridge the Gap Has Not Revealed Documents Per Interrogatory Requests. W/Certificate of Svc.Related Correspondence

ML20197G765
Person / Time
Site:	05000142
Issue date:	06/11/1984
From:	Cormier W CALIFORNIA, UNIV. OF, LOS ANGELES, CA
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8406180153
Download: ML20197G765 (9)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket No. 50-142 THE REGENTS OF THE UNIVERSITY ) (Proposed Renewal of Facility 0F CALIFORNIA ) -

License Number R-71)

(UCLA Research Reactor) June 11, 1984

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UNIVERSITY'S MOTION TO COMPEL FURTHER WRITTEN RESPONSE OF DR. BENNETT RAMBERG OR FOR ALTERNATIVE RELIEF AND COSTS r

DONALD L. REIDHAAR GLENN R. WOODS

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CHRISTINE HELWICK 590 University Hall 2200 University Avenue Berkeley, California 94720 Telephone: (415)642-2822 Attorneys for Applicant THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

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8406180153 040611 PDR ADOCK 05000142 0 PDR

O I. THE MOTION University hereby moves the Board, pursuant to 10 CFR 962.740(e) and (f) and 2.740a, for an order compelling CBG to provide ,

forthwith the written response of CBG witness Dr. Bennett Ramberg to the question propounded to the witness at the deposition taken on June 7, 1984 (Ramberg Tr. 69, line 19), which question the witness was' '

instructed by CBG counsel not to answer. Alternatively, University requests that the Board exclude from the forthcoming hearing on the security contention any opinion evidence of Dr. Ramberg proffered by CBG which goes beyond the opinions expressed in the June 7, 1984 deposition and which should have been revealed by the witness in response to University's legitimate discovery requests. As separate relief, University moves the Board for an order directing CBG to pay the costs of the deposition.

II. DISCUSSION At the February 8-9 prehearing conference CBG identified Drs.

Taylor and-Hafemeister as its witnesses who would be testifying on the sabotage threat at the UCLA facility. In order to clarify the issues ,

for hearing and to provide University with an opportunity to prepare its case in response, the Board instructed CBG to provide a detailed summary of the proposed testimony of these witnesses on the credible safeguards threats directed against the UCLA facility. Tr. in camera 3532-33, 3549-51, 3564, and 3567; April 20,1984 Prehearing Conference Order, at

7. On May 1, 1984, CBG filed a pleading purporting to describe the

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threats directed against the UCLA facility. However, that pleading consisted only of the vague and unsupported speculations of CBG's attorney and did not provide a summary of the testimony of CBG's witnesses as CBG had been instructed to do. The Staff responded on May 21, 1984, pointing out that CBG's May 1, 1984 " Estimate of Threat" did not comply with the Board's instructions. The insufficiency of CBG's estimate of threat was discussed in a conference call on May 24, 1984, and it was then agreed that University would take the depositions of Drs. Taylor and Hafemeister by June 6,1984. On May 30, 1984, University noticed depositions of Drs. Taylor and Hafemeister and included a request for the production of documents. During the June 4, ,

1984 conference call to discuss problems in scheduling the depositions of CBG's witnesses, CBG informed the Board and parties that Bennett Ramberg would be the witness providing testimony for CBG on the sabotage threat to the UCLA facility. University deposed Dr. Ramberg on June 7, 1984', for the purpose of ascertaining the information that the Board had directed CBG to provide during the February prehearing conferenc3.

At the deposition, Dr. Ramberg expressed the opinion that "the UCLA reactor _has the potential to be an attractive sabotage target."

Ramberg Tr. 31. Dr. Ramberg did not provide any specific bases to support his opinion. He relied instead on the " attractiveness" of nuclear facilities in general and the fact that the UCLA facility had been mentioned in several publications (he noted articles in Newsweek and Playboy magazines) as a possible terrorist *.arget. Dr. Ramberg was asked a number of background questions and then he was asked: "What opinions do you intend to provide in the way of written testimony in this proceeding?" Ramberg Tr. 69, line 19. The question was intended to be the first of a series of questions ab~out the substance of the testimony to be provided by Dr. Ramberg at the hearing. Had Dr. Ramberg answered the question he would have been asked the bases for any opinions he expressed and the identity of any documents which supported the opinion. Mr. Hansell, who along with Mr. Kohn was representing CBG at the deposition, objected to the question asserting the attorney's work-product privilege and instructed his witness not to answer:

MR. HANSELL: I object to that question as being violative of  ;

attorney work product privilege. You may ask him about his current ,

opinions, you may not ask him about the opinions he will provide at the time of testimony, that's work product. (Ramberg Tr. 69, line 21.)

MR. HANSELL: I instruct him not to answer that ques.. ion, as calling for privileged information. (Ramberg Tr. 70, line 13.)

The objection raised by CBG's attorney is without foundation. The substance of the testimony to be provided by an expert witness in these proceedings is discoverable. Such information cannot be protected from disclosure on the claim that it is privileged " work-product." Indeed, the Commission's rules of practice impose a duty on a party to supplement a previous response to a discovery request respecting the substance of the testimony to be provided by an expert witness if that

. testimony changes. 10 CFR 92.740(e). Clearly, if a party has a duty to supplement such a response it has a duty to provide the response in the first instance. Moreover, it is contradictory for a party to assert a privilege during discovery with respect to information that in fact it intends to introduce at hearing.

.. i The attorney's " work-product" doctrine is concerned with protecting the mental impresssions, conclusions, opinions, and legal theories of the attorney and by extension, in some cases, the agents and consultants of the attorney. In fact " work-product" was not in any way involved in this situation since Dr. Ramberg stated that he had not discussed any of his opinions with the attorneys for CBG:

I BY MR. CORMIER:

Q. Have you discussed the opinions you intend to provide at the time of the hearing with attorneys for CBG?

A. [Dr. Ramberg] No. (Ramberg Tr. 71, line 5.)

l It is an obvious abuse to assert the privilege where the effect is to shield the substance of testimony to be provided by an i

expert witness from an opposing party. Under the very tight discovery j i

schedule set by the Board CBG's attorneys were surely aware that its  ;

assertion of the privilege would create a dispute that could not be resolved in time for it to make a difference to University in the preparation of its case in response to the testimony to be offered by '

Dr. Ramberg on the sabotage threat to the facility. CBG well knew that ,

that there was no practical remedy for University. CBG's wrongful assertion of the " work-product" privilege has denied University any 1 i

reasonable opportunity to provide testimony, either in its direct case I or in rebuttal, that can respond to any of the opinions or other assertions to be made by Dr. Ramberg in his written testimony which were

-not expressed during the deposition.

l As a separate matter, University wishes to note that with the exception of one evasive reference CBG has not revealed nor identified 1

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any documents upon which any of its witnesses intend to rely as requested by University's in its interrogatories and in its three depositions of CBG witnesses which included requests for production of f i

documents.

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CBG's~ attorneys have asserted the " work-product" privilege ,

l twice now under circumstances that suggest that the assertion of l I privilege was made in bad faith and in order to deliberately hinder  ;

t University in the preparation of its case or to force a continuance of

, this proceeding. The only fair and effective remedy is for the Board to ,

exclude any opinion testimony from Dr. Ramberg that goes beyond the  !

opinions expressed in his deposition. In any event, University is entitled to the costs of deposition. The costs of the deposition are i

described in the attached declaration of Mr. William H. Cormier.

J III. CONCLUSION i  !

4' For the reasons above, University respectfully requests that >

the Board direct CBG to provide forthwith the further written response

of Dr. Ramberg to the question described above. propounded at deposition. i 4

A1.ternatively, University requests that the Board exclude all opinion

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evidence of Dr. Ramberg which should have been revealed but was not revealed in a timely fashion in reponse to University's legitimate discovery requests.

Dated: June 11, 1984.

DONALD L. REIDHAAR GLENN R. W90DS CHRISTIrlE HELWICK By WILLIAM H. CORMIER

-Representing UCLA t'

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f UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISS10ll BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket No. 50-142 THE REGENTS OF THE UNIVERSITY ) (Proposed Renewal of Facility 0F CALIFORNIA ) License Number R-71)

(UCLA Research Reactor)

)

DECLARATION OF WILLIAM H. CORMIER I, WILLIAM H. CORMIER, say:

1. I am the attorney who represented UCLA at the deposition of Dr.

Bennett Ramberg on June 7, 1984 on the UCLA campus. During the deposition I propounded the question that appears on page 69, at line 19 of the deposition transcript. Mr. Hansell objected to the question asserting the attorney's work-product privilege and instructed his witness not to answer. As a result, I was unable to explore the opinions the witness expected to present as written testimony in connection with the upcoming hearing.

2. The University incurred the following costs in taking the deposition of Dr. Ramberg:

Expert witness fee paid to the witness $600.00 Court reporter's costs (invoice is attached) 724.00 Costs being requested as reimbursement 1324.00 EXECUTED at Los Angeles, California, this lith day of June,1984.

I DECLARE under penalty of perjury that the foregoing is true and correct.

f~ %dC William H. Cormier

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CERTIFIED SHORTHAND REPORTER 5

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' 830f!EEb6'^tbN^ 4-2500 UILLIAN H. CORMIER, ESQUIRE y UNIVERSITY OF CALIFORilIA AT LOS ANGELES BE SURE TO PLACE THIS ser' ROON 2241, MURPHY HALL NUMBER ON YOUR CHECK 405 HILGARD AVENUE bOS=AN GEL-ES==C A==90024 PAYMENT DUE UPON RECEIPT IN THE CASE OF: THE REGENTS OF THE UNIVERSIT OF CALIFORNIA

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VS UCLA RESEARCH CENTER No DOCKET NO. 50-142 DErositiowisi or: BENNETT RAMBERG b/07/8tl ORIGINAL AND THREE COPIES. 0724 00 b

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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD I

In the Matter of )

Docket No. 50-142 1 (Proposed Renewal of Facility THE REGENTS OF THE UNIVERSITY 0F CALIFORNIA ) , License Number R-71)

)

(UCLA Research Reactor) ) .

CERTIFICATE OF SERVICE I hereby certify that copies of the attached: UNIVERSITY'S .

MOTION TO COMPEL FURTHER WRITTEN RESPONSE OF DR. btnatti KrelutKu UK PUK ALitKHAl1VL KtLitt ANU LUbib ,

in the above-captioned proceeding have been served on the following by I deposit in theon as indicated, United States m g grsyggass, this date:

• postage prepaid, addressed John H. Frye, III, Chairman Mr. Daniel Hirsch Administrative Judge Cte. to Bridge the Gap '

ATOMIC SAFETY AND LICENSING BOARD 1637 Butler Avenue, #203 U.S. Nuclear Regulatory Commission Los Angeles, CA 90025 Washington, D.C. 20555

• Mr. John H. Bay, Esq.

Dr. Emmeth A. Luebke Chickering & Gregory Administrative Judge Three Embarcadero Center ATOMIC SAFETY AND LICENSING BOARD Suite 2300

.U.S. Nuclear Regulatory Commission San Francisco, CA 94111 Washington, D.C. 20555 Mr. Daniel Hirsch Mr. Glenn 0. Bright Box 1186 Administrative Judge Ben Lomond, CA 95005 ATOMIC SAFETY AND LICENSING BOARD U.S. Nuclear Regulatory Commission Nuclear Law Center Washington, D.C. 20555 c/o Dorothy Thompson 6300 Wilshire Blvd., #1200

• Counsel for the NRC Staff Los Angeles, CA 90048 0FFICE OF THE EXECUTIVE LEGAL DIRECTOR U.S. Nuclear Regulatory Commission Ms. Lynn G. Naliboff Washington, D.C. 20555 Deputy City Attorney Attn: Ms. Colleen P. Woodhead City Hall 1685 Main Street Chief, Docketing and Service Section (3) Santa Monica, CA 90401 0FFICE OF THE SECRETARY U.S. Nuclear Regulatory Commission Washington, D.C. 20555 T % 4 r-EXPRESS MAIL WILLIAM H. CORMIER Representing UCLA THE REGENTS OF THE UNIVERSITY OF CALIFORNIA L

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