ML20205F631

Memorandum (Discovery Motions).* Clarifies Procedural Aspects of Motions for Protective Orders & Motions to Compel Answers to Interrogatories & Production of Documents,Per 10CFR2.740(c) & (F).Served on 881027

ML20205F631
Person / Time
Site:	Seabrook
Issue date:	10/26/1988
From:	Smith I Atomic Safety and Licensing Board Panel
To:
References
CON-#488-7373 82-471-02-OL, 82-471-2-OL, OL, NUDOCS 8810280105
Download: ML20205F631 (4)

Text

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7373

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COLKEif1 l tafGC ,

, UNITED STATES OF AMERICA

. NUCLEAR REGULATORY COMMISSION wha :; . .. a-

' 00CKU C> >. S + " I.

ATOMIC SAFETY AND LICENSING BOARD t

Before Administrative Judges: '

Gustaek. in nberger r.

SERVED 0CT 2 7193 .

Dr. Jerry Harbour

)

In the Matter of ) Docket Nos. 50-443-OL t

) 50-444-OL PUBLIC SERVICE COMPANY OF ) (ASLBP No. 82-471-02-OL)

NEW 'IAMPSHIRE, at al. ) (Offsite Emergency

) Planning)

(Seabrook Station. )

Units 1 and 2) )

) October 26, 1988 i HEMORANDUM  :

I (Diccovery Motions) l This Memorandum is intended to clarify the procedural r

aspectc of motions for protective ordera and motions to i i compel ancuera to interrogatories and production of [

documento -- 10 C.F.R. 2.740(c) and (f). We became aware f that come confusion existed among the parties regarding f

these rules during a recent conference with the Executive Director of the Seacoast Anti-Pollution League snd the legal f councel to the Applicants. Tr. 14706-14736 (October 19, l

[

! 1988).

The chronology of the discovery dispute bringing the issue to lig'.st is instructive: On August 30, 1988, I

t 8910200105 001026 j PDR ADOCA 05000443 ~ l C PDR glr

Applicants served SAPL with its First Set of Interrogatories and Requests for Production of Documents., SAPL responded, and it' refused to answer certain interrogatories because it found the requested information to be "privileged." SAPL then moved the Board for a protective order, but it failed to substantiate its claim of privilege in its motion or in its objections to the discovery request. Applicants responded by filing a motion to compel discovery. SAPL did 4

not answer Applicants' motion. After informally consulting with the parties and reviewing their pleadings, the Board issued an Order granting SAPL's motion for protection in j part and Applicants' motion to compel in part.

Upon being served with the Board's Order, the Executive Director of SAPL requested a telephone conference to clarify the Order and the procedural aspects of discovery motions.

f j The Board became aware of the need to address the procedural issue to all parties when SAFL's Executive Director stated:

. . . I checked with a couple other counsel on the case, and their impression was that the motion for a protective order would obviate the necessity of replying to a motion to compel until after the protective (motional had been dealt with." Tr. 14710.

While the Board recognizes that NRC discovery rules could be more explicit, the interpretation offered by LAPL's Executive Director is illogical and unworkable. It fails to give any consideration to 10 C.F.R. 2.740(f)(1) and (2) which state:

If a . . . party upon whom a request for production of documents or answers to interrogatories is served . . . objects to the i request, or any part thereof, . . . the party submitting the request may move the presiding officer, within ten (10) days after the date of the response or after failure of a party to respond . . . for an order compelling a response or inspection in accordance with the request. .

. . In ruling on a motion made pursuant to this section, the presiding officer may make such a protective order as he is authorized to make on a motion made pursuant to paragraph (c) (on protective orders] of this section.

To alleviate further confusion, the parties chall adhere to the following discovery procedures for the remainder of the Seabrook litigation:

1. In an answer to another party's interrogatories or request for the production of documents, the answering party may object upon proper grounds in its response to any interrogatory or request and move the Board for a separate protective order upon those grounds. It must, however, plead its motion with specificity. The party's reasons for not responding to an interrogatory or request for the production of documents must be based on factual and legal grounds specifically set forth in its motion for protective order. See 10 C.F.R. 2.730(b) (motions shall state with particularity the grounds and relief sought); 10 C.F.R. 2.740(c) (protective orders may be granted upon a motion with good cause shown). The required specificity will allow the Board to determine the merits of a party's objection and the need for a protective order.

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2. The discovering party may then respond to the motion for protective order by either answering the motion. l or moving the Board for an order compelling discovery, or it

• may do both in one pleading. If the diccovering party does not intend to file a separate answer to the motion for  !

l protective order, it should so state in its motion to '

compel. The motion to compel shall set forth "the nature of i the questions or the request, the response or objection of the party upon whom the request was served, and acguments in i

, r i support of the motion." 10 C.F.R. 2.740(f)(2). [

3. The answering party may then file an answer to the ,

r discovering party'e motion to compel, but it may only address new issues raised in the motion to compel.

I

. t FOR THE ATOMIC SAFETY ANL LICENSING BOARD NA- AW a W. Smith', Chairman f7'n  ;

l ADMINISTRATIVE LAW JUDGE  !

Bethesda, Maryland I j October 26, 1988 i i j i  !

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