ML20198S467
| ML20198S467 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/05/1986 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-461 OL, NUDOCS 8606100442 | |
| Download: ML20198S467 (6) | |
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Dated:
June 5, 1986
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
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50-444-OL
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Off-site Emergency (Seabrook Station, Units 1 and 2) )
Planning Issues
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APPLICANTS' RESPONSE TO NECNP'S MOTION TO COMPEL RESPONSE TO INTERROGATORIES Applicants herein respond to NECNP's Motion to Compel Response to Interrogatories and say that for the reasons set forth below, the motion should be denied.
The interrogatory at issue is:
"With respect to each contention and subpart thereof admitted by the Licensing Board's order of April 1, 1986, please provide the following information:
d.
Identify all persons you may call as witnesses on each of these contentions during these proceedings; describe the substance of their testimony; and identify and describe any documents and the portions thereof that they may rely on for their testimony."
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This interrogatory essentially.says:
"name all the witnesses you. intend to call and describe all the evidence you intend to introduce.".The cases are legion holding such an interrogatory improper.
By its nature, it is not an interrogatory to,a party, but to counsel and is therefore improper.
As one court has stated it:
"Pla'intiff seeks the identification of all witnesses who will be called to testify, the substance of their testimony, and the identity and description 'of each document. which will be offered in support of defendant's, case.
This Court has consistently ruled
.that such interrogatories are improper.
When proceedings are being condpeted under Rule 33,.it is the parties and not their attorneys of whom inquiry is being made.
Therefore, information pertaining to the development of the trial of the case is not the proper subject for interrogatories."
Wedding v.
Tallant Transfer Co.,
Inc., 37 F.R.D.
8, 10, (N.D. Ohio 1963) (emphasis supplied).
The proper form of interrogatory permitted by both 10 CFR S 2.740 and Fed.
R. Civ. Proc. 26 was not used by NECNP, and therefore the applicants'" objection to it was well taken:
" Interrogatory No. 1 requested the plaintiff to ' State the names and addresses of every witness you expect to use in the trial of this case.'
This interrogatory is improper in this form according to the weight of reported authority.
4 Moore, Federal Practice 1 26.19[4], pp. 1247-56; 2A Barron &
Holtzoff, Federal Practice and. Procedure S 650, pp. 90-93 and S 766, pp. 305-06.
A proper interrogatory seeking this information should be cast in the language of Rule 26(b) of the Federal,
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Rules of Civil Procedure and should request the plaintiff to state 'the identity and location of persons having knowledge of relevant facts.'
Reneau v.
Panhandle Eastern Pipe Line Co.
(W.D.
Mo.) 12 F.R.D. 257."
Magelssen v.
Lpeal Union No. 518, 32 F.R.D.
- 464, 465-66 (W.D. Mo. 1963).
Indeed, the decision of the Eighth Circuit cited by NECNP is in accord with the principal that rarely, if ever, may a witness list be sought by discovery.
Brennen v.
Engineered Products, Inc., 506, F.2d 299, 303 n.3 (8th Cir.
1974).
"It is settled law that a party in a civil action can ordinarily discover from his opponent the names of those persor,s known to have information relevant to the lawsuit.
From the beginning, the Secretary produced such a list.
It is equally settled that discovery is not ordinarily the proper stage in litigation to compel from an opponent the names of his prospective witnesses.
See, 8 Wright & Miller, Federal Practice and Procedure 6 2013 at 106-107 (1970).
See also, Wirtz v.
Continental Finance & Loan Co. of West End, 326 F.2d 561, 564 (5th Cir. 1964)
(dictum):
Wirtz v.
B.A.C.
Steel Products, Inc., 312 F.2d 14, 16 (5th Cir. 1962).
"Since the period between the order to produce and the trial date was almost three months, we view it as a discovery and not an immediate pretrial order.
We I
do not say that a District Court may never compel compilation or production of witness lists at the discovery state.
But we do note that it is rare for a trial court to do so, and the infrequency of such an order should be borne in mind when assessing the propriety of the discovery order here."
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Finally, in candor, the applicants wish to advise the i
Board and NECNP that if an attempt to answer this question were made at this juncture, before rulings on summary disposition and before full assessment of the viability of certain contentions directed only to local plans, the answer would be "we do not know."
CONCLUSION The motion to compel should be denie_d.
Respectfully submitted,
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Thomss G.
Digrfif, Jr.
R.
K. Gad III Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 Counsel for Applicants
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CERTIFICATE OF SERVICE I,
Thomas G.
- Dignan, Jr.,
one of the attorneys for the Applicants herein, hereby certify that on June 5, 1986, I made service of the within document by mailing copies thereof, postage prepaid, to:
Administrative Judge Helen Hoyt Stephen E. Merrill, Esquire Chairperson Attorney General Atomic Safety and Licensing George Dana Bisbee, Esquire Board Panel Assistant Attorney General U.S. Nuclear Regulatory Office of the Attorney General Commission 25 Capitol Street Washington, DC 20555 Concord, NH 03301-6397 Dr. Emmeth A.
Luebke Dr. Jerry Harbour Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Robert Carrigg, Chairman Richard A. Hampe, Esquire Board of Selectmen Hampe and McNicholas Town Office 35 Pleasant Street Atlantic Avenue Concord, NH 03301 North Hampton, NH 03862 Diane Curran, Esquire Sherwin E. Turk, Esquire Harmon & Weiss Office of the Executive Legal Suite 430 Director 2001 S Street, N.W.
U.S.
Nuclear Regulatory Washington, DC 20009 Commission Washington, DC 20555 Atomic Safety and Licensing Robert A.
Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 Atomic Safety and Licensing Mr. Ed Thomas Board Panel FEMA, Region I U.S. Nuclear Regulatory 442 John W. McCormack Post Commission Office and Court House Washington, DC 20555 Post Office Square Boston, MA 02109
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Paul McEachern, Esquire Carol S.
Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney General 25 Maplewood Avenuc One Ashburton Place, 19th Floor P.O.
Box 360 Boston, MA 02108 Portsmouth, NH 03801 Gary W.
Holmes, Esquire Mr. Peter J. Matthews Holmes & Ells Mayor 47 Winnacunnet Road City Hall Hampton, NH 03841 Newburyport, MA 01950 Mrs. Sandra Gavutis Mr. Calvin A.
Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S.
Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn:
Tom Burack)
Town of Newbury Newbury, MA 01950 Senator Gordon J.
Humphrey Mr.
J.
P.
Nadeau 1 Pillsbury Street Selectmen's Office Concord, NH 03301 10 Central Road (Attn:
Herb Boynton)
Rye, NH 03870 Mr. Thomas F. Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Ar4 esbury, MA 01913 H.
Joseph Flynn, Esquire Terentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.
Judith H. Mizner, Esquire Washington, DC 20472 Silvergate, Gertner, Baker Fine, Good & Mizner Philip Ahrens, Esquire 88 Broad Street Assistant Attorney General Boston, MA 02110 Department of the Attorney General Augusta, ME 04333 Y
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Thomas G.'Di g Jr.
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