ML20212N295
| ML20212N295 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 08/18/1986 |
| From: | Dignan T ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20212N286 | List: |
| References | |
| OL, NUDOCS 8608280173 | |
| Download: ML20212N295 (19) | |
Text
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August 18, 1986 IIEiATEQWFWW UNITED STATES OF AMERICA
~
00LKETED NUCLEAR REGULATORY COMMISSION before the
'86 ALE 27 A10:22 ATOMIC SAFETY AND LICENSING BOARD
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OFFICE 0F n tP: iAF y 00CHETING & SLOVICf.
BRANC"
)
In the Matter of
)
)
TEXAS UTILITIES ELECTRIC
)
Docket Nos. 50-445-OL and C0!!PANY, et al.
)
50-446 OL
)
(Comanche Peak Steam
)
Electric Station, Units
)
I and 2)
)
________________________________)
APPLICANTS' RESPONSE TO " CASE RESPONSE TO APPLICANTS' MOTION FOR PROTECTIVE ORDER OF JULY 16. 1986. AND MOTION TO COMPEL" (JULY 31. 1986)
Pursuant to 10 C.F.R. section 2.730(c). Texas Utilities Electric Co.,
et al.,
hereby submit their reply to CASE's Motion to
(
Compel, set forth within its " Response to Applicants' Motion for' Protective Order of July 16, 1986," filed July 31, 1986.
CASE's motion pertains to discovery requests fileo on July 2, 1986, in the above-captioned operating license (iO L ) proceeding.
CASE previously filed the same requests in the Construction Permit Extension (CPA) proceeding.1 for the reasons get forth below, CASE's gotion to compel should be denied.
I.
The instant Motion to Compel evinces compounding misapprehensions regarding the proper scope of discovery in this OL 4
proceeding.
It specieusly asserts that the issues in the CPA and OL proceedings are sufficiently coincident that discovery proper in one 4
0608280173 860823 PDR ADOCK 05000445 '
G PDR
r' proceeding in propor in the other, while sioulteneously misconstruing the current status of proper discovery in the OL proceeding.
A.
GENERAL RESPONSES TO CASE MOTION 1.
Delimiting Proper Discovery in OL Proceeding CASE's assertions regarding the status of discovery in the operating license proceeding may be boiled down to a single incorrect claim.
CASE argues that it may still take general discovery on any
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matter related to the design or construction of Comanche Peak.
CASE believes it may do so even if it means simply reframing questions asked and answered years ago or seeking information regardless of whether it relates to issues and activities which remain to be litigated.
The present scope of discovery is simply net so broad as CASE pretends.
In the first instance, discovery has once been closed in this proceeding and, thereafter, reopened only with respect to specified issues or events.
Specifically, by order dated April 23, 1982, the Licensing Board set May 17, 1982, as'the end of discovery on Contention 5.2 The Board subsequently allowed additional discovery regarding the Staff's testimony concerning Walsh/Doyle allegations,3 and the CAT Report (subject only to reopening for good cause).4 The Board later formally reopened discovery but only with respect to "any new information filed in response to matters previously left open by the decisions of the Board."5 That order placed two limitations on future discovery.
Principally, that order directed that future discovery must relate to new information thereafter filed to address certain open issues.
The Order also.
4
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lioited discovery to the isouco " loft open."o Thus, not only was discovery cloosd.with respect to closed issues, but it was authorized only with respect to new information.
In short, wholesale discovery regarding the design and construction of Comanche Peak was at'that juncture flatly prohibited.
While discovery has since been expanded slightly, it has certainly not been reopened'in the manner or to the degree CASE contends.
Instead, the~ Board subsequently authorized additional discovery only in certain other discrete areas; and on each occasion with certain specific limitations.1 Indeed, following submission of the CPRT Program, the Board again directed that the parties could undertake discovery only within a defined scope, as follows:
Discoveryshallnowbeinorderifitrelatestothe activities of or findings of the Staff's TRT or the i
Applicants' CPAT that are directly or indirectly related to Contention 5. Additionallydiscoveryshallbeinorderifit is now directly or indirectly relevant to Cortention 5 because of new inforsation derived free those findings or this discovery process. Discovery shall be in order it it relates to the cesparatively recent reogranizations of Applicants' sanagement teas.
Memorandum and Order (Current Status of Discovery), August 16, 1985 at 3.
This Board has not since substantively broadened the permissible scope of that discovery.
We address below the particular areas of discovery which CASE claims supports its motion.
In sum, whether alone or in combination, these few areas in which discovery has been reopened since the Order of April 23, 1982, do not create a right to renew wholesale unlimited
~
discovery as CASE would urge.
a.
Harassment and Intimidation i e
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______7.
Wholesale discovery regarding heroccasnt and inticidation in simply not permitted.
Rather such discovery is limited to information relating to incidents of harassment of Quality Control Inspectors which occurred prior to July 1, 1984.
That scope has been reconfirmed by the Board time and time again, most recently in its December 23, 1985, Memoranduu and Order (Discovery), at 5.
b.
Credibility With respect to discovery concerning " credibility," the only remaining authorized discovery involves follow-up questions to Applicant's answers to discovery requests already filed.8 c.
CPRT As for the CPRT, Applicants hav'e already established a comprehensive mechanism for affording discovery regarding the results of that program, even in the abaence of direct discovery requests.
The Applicants have undertaken to make the entirety of the CPRT
" Working File" relating to each of the Issue Specific and Discipline Specific Action Plans available to CASE as each action plan is completed and its Results Report published.
As to the contents of these files, CASE need neither file a request for discovery nor demonstrate relevance to any presently litigable contention.
See Tr.
24232 (11/22/85).
See also Notice of Availability of Working Files" filed April 4, June 4 and August 14, 1986.
In addition, though the Board has yet to adopt a scheduling order for entertaining the litigable portions of the completed CPRT program. the Applicants have responded to interrogatories and i I 6
l i
.c.
.,___e-,._..,y-y___--_. _., _,,, _. --
w 7-
docu Gnt requesto directed at coOpleted Action Plans and Recults Reports.
Applicants have also committed to make (and have in fact-made) the CPRT " Central Files," which contain matters relating to the ada:nistration of CPRT but not specific to any particular Action Plan, available to CASE whenever CASE wishes to inspect them.
See Tr. 24231 (11/22/85).
Finally, CASE has availed itse1f of these offers by the Applicants, albeit not
' diligently.
It has inspected the Central Files on more than one occasion, and it has inspected the " Working Files" of some, but not all (though all it asked to see), of the Action Plans.e Appropriate CPRT discovery is thus readily available. None of the requests at issue here, moreover, seek information relevant to the CPRT program, or fall within the scope of other topics open for discovery as a result thereof.
d.
Management.
To the extert the scope of authorized discovery includes anr inquiry into Applicants' management, the permissible interrogation may extend only "to the comparatively recent reorganization of Applicants a
management team."
Memorandum and Order (Current Status of 1
Discovery),, August'6, 1985 at 3.
CASES's attempt to justify its instant requests on the basis of a desire to inquire generally into t
I Applicants' past management ignores this Board's orders regarding such discovery as well as the proper limits of what is litigable
'under Contention 5.
2.
Duplication of Prior Discovery 1,
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CASE'c oigundarstanding of what ccnctitutoo propar diccovery manifests itself anew in the suggestion that even though Applicants o
may be correct that the discovery sought to be compelled may have already been a'sked and answered, Applicants should be obligated to undertake to identify all the prior questions and responses.
(Motion at 8.)
Such an argument provides its own refutation.
It is most certainly not the law that a litigant before the NRC may wholly disregard (or, at least, has no obligation to consider on its own) years of prior discovery (including the production of ti.ousands of documents, Board rulings and agreements among the parties).
Nor can it be accepted that the interrogated party should be obligated to cult through all prior requests, answers and documents in order to catalog and provide information which the interrogating party already knows, or at the least should know.
The law is instead exactly to the contrary:
[W]henvolusinousandallinclusiveinterrogatoriesare desonstratedwithparticularitytobesubstantially duplicative of saterial already within the preconent's grasp, the objector's burden of desonstrating that they are annoying, veratiousoroppressivebeyor.dtheliaitsofjdsticeis discharged.
Richlin v.
Sigma Design West. Ltd., 88 F.R.D.
634, 640 (E.D. Cal.
1980)(emphasis removed; citations omitted).
Applicants have adequately demonstrate that the discovery sought by CASE is duplicative (see Applicants' Response at 4,, n.2).
Nothing more can properly be required of them.
CASE has advanced nothing to meet the burden these principles impose upon it (cf. Fed.
R. Civ.
P. 11; 10 CFR sec. 2.708(c)), and its motion to compel must be rejected on this ground alone..
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B.
RESPONSES TO CASE MOTION REGARDING SPECIFIC REQUESTS It is axiomatic that discovery disputes must be considered within the context of what is in issue in the litigation.
Applicants have repeatedly pointed out that there are substantial differences between what may be relevant and material in the now suspended CPA proceeding and in this OL proceeding.
CASE's Motion to Compel attempts to sidestep thess important distinctions by arguing that the information they believe may be disclosed by their incorporated CPA discovery requests agg become relevant in challenges they expect to be able to advance in the OL case.
This argument is substantially belied by the very questions they have posed, however. as well as by the convoluted arguments CASE has been obliged to construct in order to attempt to demonstrate the clained linkages.
D'issection of thowe specific arguments is inst uctive.
1.
Interrogatories 1 and 7 It is somewhat difficult to take seriously CASE's assertion that Interrogatories 1 and 7-reflect proper discovery in this proceeding.
Both sets of questions expressly ask for Applicants' position with regard to an issue -- the "cause" for the delay in construction of CPSES Unit 1 -- the further litigation of which has now been expressly stayed pending further ruling by the full Commission.
The irrational arguments advanced in support of the assertions further expose the absurdity of the CASE position.
Interrogatory 1 asks Applicants to identify all documents upon which they intend to rely in the C.PA proceeding.
This task, now 9
e
cucp;ndad by ordarc of thic Boerd end ths Appac1 Board, can hevo ea its only focus the discovery of 'such evidence as Applicants intend to offer in the CPA proceeding should it ever be resumed.
The Motion to Compel argues (at p.5) that CASE believes that the delay was caused by harassment and intimidation of CPSES workers.
Whatever logic or application that strange syllogism may have in the CPA proceeding, it has none in this case.
CASE goes on to urge that if[ Applicants]caneverbeforcedtoanswerthequestic,7in astraightforwardsanner,however,theywillhavetoroseup with sose sort of erplanation as to how quality control and qualityassurancebrokedown,orgiveotherreasonsforthe plant'sprobless. Thisexplanationislikelytoreve31 considerable inforsation about their treatsent of workers, and also to be relevant to the credibility of Cosanche Peak sanagesent.
Id.
1 It is simply impossible to figure out what " question" CASE thereby intehds to " force" Applicants to answer.
The only Interrogatory brought before this Board by CASE's Motion to Compel seeks a list of documents.
That list is not going to provide any
" sort of explanation as to how quality control and quality assurance broke down," straightforward or otherwise.10 It will, moreover, by definition be irrelevant to the OL proceeding.11 A list of documents which may support Applicants' position regarding the cause of a delay in corstruction simply can not -- ex proprio vigore -- produce any relevant or material information regarding the issue of whether Applicants' alleged failure to adhere to appropriate QA/QC procedures adversely affected the quality of construction at CPSES.
(Admitted Contention No. 5).
CASE's attempted justification of Interrogatory 7 is i e
1
I.
sioilarly infiro.
That question, by its expecos terra, requests Applicants to set forth their views on the " evidence and reasoning" on which they intend to rely if the CPA proceeding is resumed in its former configuration.
CASE nevertheless contends that those questions are proper in this OL proceeding because Applicants answers on these indisputably CPA issues willprobably(be]use[d]..
as a defense against allegations concerning sanagesent practices, and CASE will needtorespondappropriately.
One must stretch aightily to accept the bona fides of such an argument.
Stripped of obfuscation, it urges'that a litigant should be permitted to demand answers to questions which have no direct relevance or 1
materiality to the proceeding in which they have been asked, which are directly relevant only to another proceeding wherein precisely the same discovery has been ordered suspended, solely on the basis of the interrogating part'r's conjecture that the answers might also provide information which could be used to anticipate a possible rebuttal to evidence and allegations which it has yet t o o ffer.
Such a pretextual construction is starkly inadequate to support a motion to compel.
2.
Interrogatory 2 This request seeks all studies, reports, reviews and audits applicants received which addressed, in effect, the construction of the project.
Applicants object to responding to this request as a separate recuest in this docket because it duplicates in all material respects CASE discovery requests previously asked and answered.
Applicants pointed out this fact in their original response
_g_
e e
(at 4-5), idcntifying specific requesto which together cover tho-scope of the instant question.
CASE doe,s not assert in its motion any way in which this is not true.12 CASE having conceded this point, therefore, the Board need go no further.
The Motion to compel must 1
be denied.
See Richlin v.
Sigma Design West.
Ltd..
supra.
In any event, Applicants have already responded to this request in the CPA docket.13 And in large measure that response duplicates a prior response to a request, filed in the context of discovery relating to the MAC Report.14 In short, CASE already has access to the information sought.ts As with Interrogatory 1, therefore, CASE's pressing of this request does not seem motivated by a legitimate desire to obtain relevant information..
Regardless of the above, however, there are implications to CASE being permitted to pursue this question in this context.which compel the Bosed.to deny the CASE's motion on irdependent. grounds.
First, CASE incorrectly concludes that Applicants claim that the request is irrelevant to this proceeding.
What Applicants assert, however,,is that some of the documents identified in the July 3, 1986 Su'pplemental Response in the CPA proceeding may be irrelevant to the OL proceeding.
In preparing that response, Applicants did not limit I
their search to documents relevant to Contention 5.
Accordingly, l
Applicants have reserved their right to object to the use of any of those documents in this proceeding >,here only contention 5 remains in litigution.
Second, CASE argues that this requast is permissible as a wholly new request at this stage of the proceeding (Motion at 6-7).
But, as explained above in our General Response, the initation of such 0
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wholesalo inquiries cro no longer cuthorized.
CASE argues as well (Motion at 7-8) that agreements between CASE and Applicants regarding supplementation of responses to prior requests are no longer viable.
But surely CASE may not unilaterally withdraw its prior agreements regarding supplementation of responses, particularly where those agreements are set forth in writing by C'AS E. t e Nor does the initiation of the reinspection program by Applicants in any way nullify those prior agreements (Motion at 8).
To accept such arguments as a basis for allowing this question would thus negate six years of discovery, including this Board's orders and the egreements of the parties.
The violence that would do to Applicants' rights is incalculable.
For these reasons,
Applicants adamantly object to permitting such inquiry anew at this state of the proceeding, and the Board should expressly decline to do so.
3.
Interrogatories 3-6 Interrogatories 3 through 6, again copied verbatim from the set advanced (and now suspended) in the CPA proceeding, seek to require Applicants to trace down each occasion on which it might be said that they may have "first receive (d) notice of the issues identified by the NRC'S TRT reports and SSERs," including in the demanded responses the form of such " notice," what was done in response to such " notice" and why, and who may have been involved.
i Interrogatory-6 Aces even fu.rther to demand Applicants investigate and analyze how the " findings" of the NRC may have been " integrated into vonsideration of the subsequent finding by others."
None of.
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thoco cottors has any apperont relevcnce to the case which Applicants are required to put on to meet their burden under Contention S in this proceeding.
Rather, as this Board has previously ruled, these discovery requests "are the crux of Intervenors' case" in the CPA proceeding.
Memorandum and Order of June 27, 1986, No. 50-445-CPA, at 2.
Whatever the validity of an order requiring responses to those questions in that proceeding, there can be no support for such a J
directive in this case.
In the first place, the questions will produce informat'on of i
little, if any, relevance to Applicants' case under Contention 5.
Applicants have undertaken an enormous effort te examine and analyze the present adequacy of the design and construction of the CFSES project.
They will present that evidence in due course to meet their burden of demonstrating that the facility is free of such undetected, uncorrected safety significant deficiencies that -- were they to remain undetected -- the facility would be incapable of being operated safely.
The CPRT Program will determine whether issues are valid and, if so, how they are to be resolved.
Once that mission has been performed, questions of how and when these issues arose are of no concern to the CPRT'and no apparently legitimate concern to the
- Board, CASE, should it wish to challenge the CPRT's conclusions, must demonstrate that CPRT's resolution of the issues is incorrect as a technical matter, not that the Applicants were less than diligent in detecting, perceiving or resolving them earlier.
It is at best entirely speculative h'ow CASE could ever be permitted even to offer such evidence in its rebuttal presentation on the question of the adequacy of the design and construction of Comanche Peak. \\
s.
._..____.._..__m_.
I CASE doca not directly confront thoco truicca.
Instecd, it argues that the reques te'd in format ion is relevant to the " issues of-harassment and,inticidation," and may reveal " management patterns" which they apparently believe have some relevance to this ca3e.
CASE Memorandum at 9-10.
Neither of these supposed issues is currently in this proceeding, however, and the time for injecting (or reinjecting) them has passed.
Moreover, even if one assumes, arguendo, that some aspects of these issues may creep into the' hearings in this case at some point in the future, the CASE discovery demand is egregiously inappropriate.
None of the information which they have requested is claimed.to be itself relevant.
Rather, the contention is that by examining historic events and tracing the efforts of Applicants in these areas, CASE may be able to perceive " patterns" from which it can attempt to erect arguments about management practices in the past.
Even if such abstract considerations someday become relevant, the burden sought to be imposed by CASE upon Applicants to search and interpret history is wholly disproportionate to any value which might be ob.tained therefrom.
The discovery is therefore improper:
(E]ven though the requested inforsaticn is in (the responding party's] control, he should not be forced to engage in extensive research and coepilation, particularly when the purpose of the effort is to assist (the requesting party] in the preparation of his case.
llalder v.,
Int'l Tel. & Tel.
Co.,
75 F.R.D.
657, 658 (E.D.N.Y.
1977);
Struthers Scientific and Int'l Corp.
- v. General Foods Corp., 45 il F.R.D.
375, 379 (S.D. Tex. 1968); Banana Distributors. Inc.
v.
United Fru.it Co.,
19 F.R.D.
493, 495 (S.D.N.Y.
1956); Greene v.
Raymond, 41 F.R.D.
11, 14 (D. Colo. 196G)..
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Should CASS nevortheleco wich to persiot in its pursuit of such patterns and implications of historic events, it is of course a
free do to so by sifting the results of discovery properly focussed on what is currently at issue -- or by doing its own investigation and analysis.
It may not, however, shift to Applicants the enormous burden imposed by such quixotic enterprises.
In an attempt to dismiss the enormous burden which their unfocussed and duplicative demands would impose upon Applicants, CASE argues that the affidavit of Dr.
L.
Ed Powell should be rejected because -- in CASE's r'ubric -- it contains a "self serving statement (which should not] be taken at face value."
CASE's contention, part):ularly as modified by its citation of Pennsylvania Power and Light Co. and Allegheny Electric Cooperative. Inc. (Susquehanna Steam Electric Station', Units 1 and 2), ALAB-613, 12 NRC 317, 334 (1980),
reflects a serious misapprehension regarding the prob'ative force of evidence before the Board and of the holding of the cited decision.
In the first place, the test.of the sufficiency of an affidavit is derived from the Rules of Evidence and the Rules of Practice, not from language lifted from other cases which confronted i
very different factual offerrings.
10 CFR sec. 2.743(c); Duke Power 1
Co. (Wm.
B. McGuire Nuclear Station Units 1 and 2), ALAB-669, 15 NRC j
453, 475 (1982) The Appeal Board in Susquehanna sustained a Licensing -
Board's rejection of a sotion for a protective order which had been premised upon the bare statement that responding "would take months of full time work." 12 NRC at 334.
The representation did not even purport to take the form of an affidavit, sworn to under oath and i
advancing facts.
Rather, it was no more than a contention -- i e
k
cccplotely devoid of fccts upon which the Licencing Board could bace a decision granting relief.
Neither characterization applies to Dr.
a Powell's affidavit.17 Dr. Powell's statment was made under oath.
It was, moreover, expressly made on personal knowledge.
It is thus prima facie evidence of all that it recttes.
While a reviewing tribunal may carefully scrutinize affidavits where there are serious questions regarding the competence or knowledge of the affiant t'o make the statuents therein, it may not simply ignore the force of evidence properly advanced by affidavit in the absence of contrary evidence against which to weigh its offerings.te The facts to which Dr. Powell has sworn'are plainly ones which are capable of being ascertained by someone.
Indeed. this Board may take notice th'at man hour based scheuuling estimates are tools utilized by virtually all reasonably skilled managers in modern business, and are ones upon which such managers, and their seniors, regularly rely in the course,of their daily activities.
They are in all respects well within the range of " facts" relied upon by i
reasonable and responsible persons in making everyday decisions.
They are,'moreover, ones which Dr. Powell has the training and the information to determine.1S Even if one assumes arguendo that they are to some degree matters of e? pertise, morevoer, they are ones which Dr. Powell has qualified himself to offer.ao If Dr.
Powell's facts are to be attacked, it must be through the vehicle of counter evidence.
This CASE has failed to do at It therefore follows that, while Dr. Powell's as yet uncontroverted testimony may not be binding on the Board in the t
b r,
strict conco, the Bocrd soy not reach a different factual conclucion in the absence of a reasoned, fac,t-based explana' tion of why this evidence is to be rejected.
Public Service Electric & Gas. Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-429, 6 NRC 229, 237 (1977); Public Servige Company of New Hampshire (Seabrook Station.
Units 1 and 2), ALAB-422, 6 NRC 33, 41 (1977), aff'd CLI-78-1, 7 NPC 1, eff'd sub nom. New England Coalition on Nuclear Pollution v.
- NRC,
- 582 F.2d 87 (let Cir. 1978).
CASE has advanced no basis upon which this Board might properly do so.
The only question which therefore remains' is whether, in 4
j light of the discovery history of this proceeding and the limited scope of the only remaining adaitted contention (No. 5), it'is permissible to impose upon the Applicants the overwhelming burden of answering Interrogatories 3-6.
The precedents are uniformly clear:
such discovery is not " reasonably calculated to lead to the discovery of admissible evidence," and may not be compelled over the responding party's objection.
- See, e.g.,
.Aktiebolaget Vargos v. Clark, 8 F.R.D.
635, 636 (W.D.N.Y.
1949):
interrogatoriesarenottobeusedinanoppressive sanner. An dverse party should net be required to perfore burdensoselaborsortoexecutedifficultandexpensivetasks,in searching for facts and classifying and coepiling data.. A litigatt say not cespel his adversary to go to work for his.
Accord. Tivoli Realty v.
Paramount Pictures. Inc.,
10 F.R.D.
201, 203 (D. Del. 1950); Cone Mills Corp.
v.
Joseph Bancrof_t & Sons Co.,
33 F.R.D.
318, 323 (D. Del. 1963); V.D._ Anderson % v.
Helena Cotton Oil Co 117 F. Supp. 932, 94,1 (E.D. Ark. 1953); Hiss & Co.
v.
Ass'n n,
of American Railroads, 23 F.R.D.
211, 213 (D.D.C.
1959).
t
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6 C.
The Dncument Production Requent CASE offhandedly suggests that Applicants have waived their right to object to the production of the documents supposedly described in the discovery request at issue.
We trust this is intended as an attenpt at humor.
Whether that or serious assertion, it fails.
The Rules of Prn'etice (10 C.F.R.
section 2.T41(c)) require
'that an interrogating party shall describe the documents or things to be produced with " reasonably particularity."
CASE failed to do so.
Instead CASE requested that Applicants produce all documents "that refer or relate in any way to documents indentified in or used for answer ing Interrogatories 1 through 7."
As can be readily s,een, this language is hardly the sort of precise definition by category contemplated by the Rules.
In any event, as the instant discovery dispute must make clear. Applicants did not identify any documents in response tc any of the interrogatories -- because all such questions were object'ionable.
There can hardly be an additional obligation to advance a separate phrase somewhere in the Response pointing out that the specific, and whol.ly sufficient as a natter of law, reply to CASE's tagalong document production request was:
"Not Applicable."
Moreover, the Rules require no more of responding parties than that they set"forth with adequately clarity their " reasons for objection" to production.
10 C.F.R.
sec. 2.741(d).
Applicants abundantly communicated their objection to responding to any of the improper duplicative discovery demands contained in the CASE requests, ar.d estabitshed their reasons for doing so with more than adequate specificity.
It is not surprising that CASE's suggestion that
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Applicanto' righto have novertholeso boon cocprouised is devoid of authority.
There is none for such draconian practice.
II.
1 For the reasons stated hereinabove, the CASE notion to compel should be denied.
Respectfully submitted.
Thomas G.
- m' ' '
S
-Digna$'f R.K.
Gad III William S.
Eggeling Kathryn A.
Selleck Ropes & Gray 225 Franklin Street Boston, Mass.
02110 (617) 423-6100 I.
y-r 6
i FOOTNOTES a
I in the CPA proceeding be held in abeyance.These requests were filed in the O (SeeMesorandusandOrder.EocietNo.50-445-CPA(July 2,1986).)
2 trfg (Asending Revised Schedule), April 23,1982.
3 Mesorandus and Order (Mesorializing Conference Call), March 9,1983 at 1.
Telephone Conference Call ('pril 7,1983) at 61,122-24.
CASE soon after sought additional discovery which the Board directed be filed with an accospanying desenstration of good cause (Telep 1983)at5830-33). The scope of that discovery was ultimately resolved in the Telephone Confere 1983.
5 Mesorandus and Order (Scheduling Matters), Decesber 28,1983.
' At that tise those issues centerned pipe supoort design and discrete issues rela assurance.
7 The Board has authorized discovery with respect to harasssent and intisidation (M Openissues), March esorandus (Clarification of July 22,1984),* credibility
- issues (Mesorandus(ReopeningDisc and the CPRT (Mesorandus and Order (Current Status of Discovery), August 18 1984) 16,1985).
- See Mesorandus and Order (Period for Discovery; Motion for. Reconsideration), December counselhasdiscussedthenatureandscheduleofsuchfollowupdiscoverywithCASE'sDallas 12,1985. Arplicants'
' Though not directly related to CPRT, the Applicants have also been producing a CASE has yet to far the copying chtrges) all NCRs written by the CPSES Project in res deviationi since July,1985, 1g1Tr.24249,24254-57(11/22/85). Indead, since the CPRT generated docusen attached to the Project generated NCR, CASE has been receiving thosa as well. Thu to the prcpess and findings of CPRT since at least the last Novesber pre-hearing conference.
H This can be confireed by erasir,ation of the list - which was filed in the CPA proceed 83' This does not sean that scoe of the inforsation contained in sose of say not have sese potential value in the OL proceeding.Itwouldbesurprisingiftherewasnotsesethingof sarginalrelevancecontainedtherein.
isoropriety of Interrrgatory 1, as actually frased.Butsuchaconvolutedjustifi:ationsserveonlytoh 12 docusents already oroduced. Applicants addressed above the fa 23 SeeSupplesentalResponseof. July 3,1986, Question 3.
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