ML20212C930
| ML20212C930 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/24/1987 |
| From: | Jim Hickey GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2599 CIV-PEN, EA-84-137, NUDOCS 8703040028 | |
| Download: ML20212C930 (8) | |
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UNITED STATES OF AMERICA d
NUCLEAR REGULATORY COMMISSION
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Before the Administrative Law Judae In the Matter of
)
GPU Nuclear Corporation Docket No. 50-320- 6/V N
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EA-84-137 (Three Mile Island Nuclear
)
Station, Unit No. 2)
)
GPU NUCLEAR CORPORATION'S SECOND MOTION TO COMPEL On January 13, 1987, GPU Nuclear Corporation ("GPUN") served on the NRC Staff GPUN's Second Request for Production of Docu-ments.
On February 9, 1987, the NRC Staff filed its response, objecting to the production of the requested documents as irrele-vant and " exempt from disclosure under 10 C.F.R. 5 2.790."l/
GPUN moves the Presiding Officer for an order compelling the NRC Staff to produce the requested documents.
1/
During a conference call on January 20, 1987, Counsel for the NRC Staff informed GPUN and the Presiding Officer that it intended to comply with GPUN's document request.
Counsel for the Staff subsequently informed GPUN that there had been a misunderstanding and the requested documents would not be produced.
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I.
The NRC Staff's Relevance Obiection In its Second Document Request, GPUN has asked the NRC Staff to produce policies, procedures, memoranda and other types of practice guides in existence on or after January 1, 1983, that in e'
whole or part govern, address, concern, discuss, or otherwise re-late to: (1) the confidentiality of persons interviewed (formally or informally) by the Office of Investigations (OI); (2) the note-taking, transcribing, recording, or memorializing of inter-views (formal or informal) conducted by OI; and (3) the reten-tion, preservation, or filing of notes, transcripts, recordings, interview memoranda, or other record of interviews (formal or in-formal) conducted by OI.
The NRC Staff objected to each of these requests on the ground that the requested documents "are not rel-evant to any claim or defense in the pending matter, will not lead to the identification of persons having discoverable in-formation, or lead to the identification of relevant documents."
This objection lacks merit for several reasons.
First, the objection misstates the general relevancy stan-dard governing discovery.
The Commission's rules do not limit discovery requests to those that "will lead to" relevant docu-ments or evidence.
Rather, the rules permit discovery regarding any matter that relates to the exis_tence, description, nature, custody, condition and location of documents; and provide that
"[i]t is not ground for objection that the information sought is.
1
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9 inadmissible at the hearing if the information is reasonably calculated to lead to the discovery of admissible evidence.
10 C.F.R. 5 2.740(b)(1). 2/ This standard is identical to that es-tablished by Fed. R. Civ. P.
26(b). 3/
The scope of inquiry per-mitted under the standard is " broad enough to cover almost any-thing that will help the examining party to discover any leads to evidence."
United States v. Matles, 247 F.2d 378, 383 (2nd Cir.
1957).
GPUN's document requests are reasonably calculated to lead to the discovery of relevent information.
As discussed in previ-ous motions,4/ the NRC has not objected to the production of, but has neither identified nor produced, notes of investigative in-terviews concerning the subject matter of this proceeding.
GPUN wishes to determine the " existence.
and location" of such records.
GPUN's document request asking for policies and proce-dures relating to the memorializing of interviews elicits 2/
General standards governing discovery were explicated in GPU Nuclear Corporation's Motion to Compel NRC Staff to Produce Documents and Request for Oral Argument (February 4, 1987) at 10-20.
That discussion is incorporated by reference.
3/
Since the NRC's discovery rules are patterned after the Fed-eral Rules, recourse to Federal case law to interpret the discovery provisions is appropriate.
Detroit Edison Co.
l (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 N.R.C.
575, 581 (1978).
4/
GPU Nuclear Corporation's Motion to Compel NRC Staff to Pro-duce Documents and Request for Oral Argument (Feb. 4, 1987) at 24-33; GPU Nuclear Corporation's Motion for Issuance of Subpoenas (Feb. 4, 1987) at 12-13. l
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c information thatiqould inform GPUN as to the types of records of interviewsthatwdreg'enerated;andGPUN'sdocumentrequest relating to the preservation and filing of such records elicits information"that would inform GPUN of the likelihood of such documents still existing anh their probable location.
These re-quests are reasonably calculated to determine the existence and location of relevant evidence and to lead to the further discov-ery of such evidence.
The document request concerning the confi-dentiality of interview statements will permit GPUN to assess and respond to potential claims by the NRC that such records are ex-empt.
These types of request have been held within the scope of permissible discovery.
In Professional Adiustino Systems of America, Inc. v. General Adiustment Bureau, Inc., 373 F.Supp.
1225, 1229 (D.C.N.Y. 1974), the Court ordered a party to res, pond to an interrogatory asking the party to state its document reten-tion policy and to identify documents reflecting the policy.
The Court observed that the information would be helpful in the plan-ning of discovery and was a proper request in the first wave of discovery.
The same rationale applies to GPUN's request.
Under I
l the discovery schedule, GPUN has further opportunity for discov-1
(
ery and thus the opportunity to probe the existence of documents l
not identified by the NRC Staff in response to GPUN's first dis-l covery requests.
The requested policies will permit GPUN to,
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ascertain whether additional documents exist, where the documents are located, and will be useful to GPUN in planning what addi-tional discovery is necessary to obtain such documents.
Similarly, in Board of Education of Evanston To.
v.
Admiral Heatino and Ventilation, Inc., 104 F.R.D.
23, 18 n.8 (N.D. Ill.
1984), the Court noted with approval a party's agreement to answer an interrogatory requiring the description of its company policy with respect to the retention and destruction of docu-ments.
The Court described the interrogatory as "an entirely reasonable question, particularly in the early stages of discov-ery."
GPUN's document requests concerning the memorializing of in-terviews and the retention of such records are also directly rel-evant to GPUN's defense.
If material evidence has been lost or destroyed, GPUN may be entitled to appropriate relief in the en-forcement action.
- See, e.q.,
United States v.
Bryant, 439 F.2d 642, 652 (D.C. Cir. 1971).
The requested documents will provide an indication whether such records likely existed, and if so, whether they should have been preserved.
Commission precedent therefore dictates the production of the requested documents.
Unless it is " palpable that the evidence sought can have no pos-sible bearing on the issues," the discovery requests must be an-svered.
Commonwealth Edison Co. (Zion Station, Units 1 and 2),
ALAB-196, 7 A.E.C. 457, 462 (1974).
o.
II.
The NRC Staff's Exemption Claim With respect to each of the three document requests, the NRC Staff claims that the requested documents are " exempt from dis-closure under 10 C.F.R. S 2.790."
The NRC Staff does not identi-fy a particular exemption and provides no explanation.
This objection is patently inadequate.
Objections must be specific enough so the presiding officer (and the parties] can understand why the discovery request is objectionable.
The bur-den of persuasion is on the objecting party to show that the interrogatory should not be answered -- that the informat' ion called for is privileged -- and general objections are insuffi-cient.
Pennsylvania Power and Licht Co. (Susquehanna Steam Elec-tric Station, Units 1 and 2), ALAB-613, 12 N.R.C.
317, 323 (1980); Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), LBP-75-30, 1 N.R.C.
579, 583 (1975).
The vice of a general objection is readily apparent here.
The NRC Staff's vague objection not only deprives the Presiding Officer of information needed to assess the objection, but also effectively forecloses GPUN from responding substantively.
GPUN has no inkling which of the nine section 2.790 exemptions the NRC Staff wishes to invoke and cannot address the propriety of the claim or the presence of countervailing considerations. The NRC Staff's insufficient objection prejudices GPUN and should be overruled.
t III.
Conclusion For the reasons stated above, GPUN requests that the Presid-ing Officer compel the NRC Staff to produce the documents specified in GPUN's Second Request for Production of Documents.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
\\QJLQgo J.U9atrick/ Hickey C.
Dav id R. Lewis Counsel for GPUN Y
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Administrative Law Judce In the Matter of
)
)
GPU Nuclear Corporation
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Docket No. 50-320
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License No. DPR-73
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EA-84-137 (Three Mile Island Nuclear
)
Station, Unit No. 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "GPU Nuclear Corporation's Second Motion to Compel" were served by deposit in the United States Mail, First Class, postage prepaid this 24th day of February, 1987, to the following persons:
Ivan Smith, Esquire Administrative Law Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Service Branch Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 George E. Johnson, Esquire Office of the General Counsel 9604 MNBB U.S. Nuclear Regulatory Commission Washington, D.C.
20555
\\9ACA-J.' >atrick H)ckey, P.C.)
%D Dated:
February 24, 1987