ML20214B254
| ML20214B254 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/13/1986 |
| From: | Mark Miller KIRKPATRICK & LOCKHART |
| To: | Cumming W Federal Emergency Management Agency |
| References | |
| CON-#486-1545 OL-5, NUDOCS 8611200396 | |
| Download: ML20214B254 (4) | |
Text
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W E0aREsfonaggn KIRKPATRICK & LOCKHART
/6 1900 M STREET, N.W.
WASHINGTON, D.C. 200W ONE BOSTON PLACE 0
BOSTON. MA 02:08 TELEPHONE (202H52 7000 0
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BY TELECOPY
's William R.
Cumming, Esq.
Office of General Counsel Federal Emergency Management Agency 500 C Street, S.W.
Room 840 Washington, D.C.
20472 Re:
Docket No. 50-322-OL-5 (EP Exercise)
Dear Bill:
This letter is to confirm a number of matters discussed by us during the last few days relating to discovery issues pertinent to the Shoreham Exercise proceeding.
First, notwithstanding the fact that under the NRC's Rules of Practice FEMA's response to Suffolk County's October 10 request for the production of documents was to have been completed as of the close of business on Monday, November 10, you informed us on Monday, and confirmed yesterday, that some of FEMA's documents would not be available for inspection until Monday, November 17, unless we agreed to travel to FEMA's Region II office in New York; however, even if we agreed to travel to New York, you were unable to give us assur-ance as to how quickly copies of the documents to be reviewed could be provided, due to FEMA's staffing cutbacks.
Given the choices available, and in view of the deposition cancellations cause'. by FEMA on November 10 (discussed balow), we requested you to send the documents to Washington.
It is my understanding that these docu-ments, which are FEMA Region II documents that are different from the documents produced to date by FEMA's Washington office, are now being shipped to Washington.
Unless I hear from you to the con-trary, I will assume that we will have access to these documents beginning on Monday, November 17.
Second, also on Monday, November 10, you informed us that, by close of business yesterday, we would be provided with your written response to our October 10 document request, including a listing of those documents you have produced as well as an identification of those you are withholding, and the bases of your refusal to produce 8611200396 861113 _
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KIRKPATRICK & LOCKHART William R.'Cumming, Esq.
'Page 2 November 13, 1986
.them.
Although we received yesterday afternoon what you characterized in your cover letter as an " inventory," it does not discuss any of the documents you have produced from your Washington office; it does not indicate what documents are responsive to any particular requests; it does not identify any documents from your New York Region II office that have been withheld (even though you informed us orally on November 10 that the evaluator critique forms i-would be withheld); and it includes no indication of the basis for withholding'the documents identified from the Washington office.
This is not an acceptable response, nor is it even responsive to the i
County's October 10 request to FEMA.
Third, at your request, we agreed yesterday to re-schedule the deposition of Ms. Marianne Jackson from Monday, December 1, to Thursday afternoon, November 20, at 1:30 p.m.
You should understand that in so agreeing to re-schedule Ms. Jackson, we in no way waive 1
our objections. to FEMA's refusal to produce other persons for depositions.
Nor do we need to go through the formality of re-noticing Ms. Jackson's deposition.
Fourth, you informed me yesterday that Richard Donovan, whose deposition is scheduled for Monday, November 24, at 11 :30 a.m., will be produced by FEMA at the scheduled time.
4 i
The last matter which I wish to address in this letter concerns the position taken by FEMA during a conference call between all the parties to the Shoreham Exercise proceeding on Monday, November 10, with respect to discovery matters in general and the depositions which have been noticed by Suffolk County in particular.
As I understand FEMA's position, any person noticed for deposition, I
irrespective of whether that person is a FEMA employee, participated in the Exercise, or has been designated to be a witness on FEMA's behalf at the Exercise hearings, will not be produced for deposition if that person is a member of the Regional Assistance Committee (the "RAC") or an " advisor" to the RAC, except for Mr. Husar, the present RAC Chairman.
In addition, you announced during Monday's call that FEMA did not intend to produce, in response to the County's October 10 request, any of the evaluator critique forms completed during the Shoreham Exercise, among other documents you were sup-l posed to identify,-because they contain the personal notes of the evaluators and relate to the RAC's review of the Exercise.
I urge you to reconsider the positions taken by FEMA, as announced by you on Monday, regarding the noticed depositions and the pending document requests.
FEMA's positions are contrary to the discovery rules and are without merit.
We are aware of no legal precedent that would support a refusal to make available for deposition intended trial witnesses or a refusal to provide the Governments with access to the factual bases for the FEMA i
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KIRKPATRICK & LOCKHART William R. Cumming, Esq.
Page 3 November 13, 1986 conclusions and Exercise results upon which this entire proceeding is premised.
Unless we are immediately advised by you that FEMA has changed its position, we intend to petition the Licensing Board as soon as possible for an order compelling FEMA to produce the deposition witnessec and the documents that are now at issue.
The discovery schedule imposed by the Board in its October 3 Prehearing Conference Order is demanding.
There are only a finite number of days to depose witnesses, to request discovery, and to respond to discovery requests.
Your eleventh hour refusal to produce documents and witnesses for depositions, which in turn requires us to seek Board intervention, is likely to make it very difficult to complete discovery within the allotted time.
Finally, just so there is no misunderstanding, the following is a list of those witnesses whom I understand you have agreed to produce for deposition:
Hugh Laine November 20, 9:00 a.m Marianne Jackson November 20, 1:30 p.m.
Albert Smith November 21, 9:00 a.m.
Christopher Saricks November 24, 9:00 a.m.
Richard Donovan November 24, 11:30 a.m.
Edward Tanzman November 25, 11:30 a.m.
William Gasper December 1, 9:00 a.m.
Phil McIntire December 4, 9:00 a.m.
Ihor Husar December 5, 9:00 a.m.
e KIRKPATRICK & LOCKHART William R. Cumming, Esq.
Page 4 November 13, 1986 If you disagree in any way with the above list, please let me know immediately.
Sincerely, Michael S. Miller cc:
Donald P.
Irwin, Esq. (telecopy)
Bernard M. Bordenick, Esq. (telecopy)
Fabian G. Palomino, Esq. (telecopy)
Stephen B. Latham, Esq. (Federal Express)
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