ML20214N077

Applicant Motion for Protective Order.* Applicant Requests That Board Rule That Deposition Be Taken at Deponents Place of Business & That Deposition Be Limited to 2 Days in Case of Lieberman & 1 Day for Mileti.W/Certificate of Svc

ML20214N077
Person / Time
Site:	Seabrook
Issue date:	05/20/1987
From:	Selleck K PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3551 OL, NUDOCS 8706020053
Download: ML20214N077 (11)

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.O DOCKETED USNRC

'87 MAY 27 P5 :04 Dated: May 20, 1987 0F?L 00Ch: C "

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

) Docket Nos. 50-443-OL PUBLIC SERVICE COMPANY OF ) 50-444-OL NEW HAMPSHIRE, et al. ) Offsite Emergency

) _ Planning Issues (Seabrook Station, Units 1 and 2) )

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APPLICANTS' MOTION FOR A PROTECTIVE ORDER Pursuant to 10 CFR $ 2.740(c), Applicants move that this Board enter a protective order denying the applications of the Attorney General for the Commonwealth of Massachusetts (Mass. AG) to take the depositions of Applicants' experts Mr. Edward Lieberman and Dr. Dennis Mileti. In the alternative, Applicants request that this Board strictly limit the scope of any deposition of these experts. In the event that this Board permits either deposition, Applicants request a ruling from the Board that Mass. AG pay a reasonable hourly fee to the expert for his time expended in the deposition.

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s Commission rules permit Mass. AG to propound interrogatories to the Applicants "to identify each person whom [they] expect to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." Fed. R. Civ. P.

26(b)(4)(A).1 Beyond that, however, Mass. AG must make some showing of his need for further discovery and it lies within the Board's discretion to deny such further discovery in the absence of a proper showing. Mass. AG has failed to set forth sufficient reasons for his proposal to depose these ,

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experts and therefore this Board should deny his motion.

Mass. AG has propounded the following lengthy interrogatory to Applicants:

"Do you intend to offer the testimony of any expert witness with respect to any contention to be litigated by the Attorney General? If so, please:

1 Rule 26(b)(4) of the Federal Rules of Civil Procedure has been read into the NRC rules of practice to govern issues pertaining to the discovery of experts. See, e.g., Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-86-7, 23 NRC 177, 178-179 (1986); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-85-38, 22 NRC 604, 609-10 (1985);

Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 495-96 (1983). These decisions concerned discovery of non-testifying experts under Rule 26(b)(4)(B) but are equally applicable to discovery of testifying experts under Rule 26(b)(4)(A).

a. Identify each expert witness who you intend to present with respect to each subpart of each such contention;2 2 Mass. AG defined " Identify" as follows:

"with respect to an expert witness

[" Identify") means to state:

(a) The name, mailing address, age and present professional or employment affiliation of the person; (b) The profession or occupation and field of claimed expertise of the person; (c) The history of formal education or training of the person, including, but not limited to, (i) the name and address-of each school where the person received special education or training, (ii) the date those schools were attended, and (iii) a description of each degree earned, including the date and granting institution; (d) The history of specialize'd training in the area of claimed expertise, including, but not limited to, (i) the type of training received, (ii) the name and address of the institution providing thi's training, and (iii) the dates of such training; (e) A list of publications of any kind by the person in the area of claimed expertise, including, but not limited to, (1) the title and subject matter, (ii) the name and address of the publisher, and (iii) the date of publication; (f) A list of any and all licenses in the area of claimed expertise, including, but not limited to, (i) the designation of the authority by which the license was issued, (ii) the date(s) of the licensing, (iii) the requirements for obtaining each license, and (iv) the g

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b. State the substance of the facts to which each expert witness is expected to testify;

c. State the substance of the opinion cnr opinions to which each expert witness is expected to testify;

d. Provide a summary of the grounds for each opinion to which each expert witness is expected to testify; '

(Footnote continued) manner by which these requirements were met; (g) The amount of time the person has worked in the field of claimed expertise, stating periods where work was other than a full-time basis; (h) The name and address of every person, or every corporation or other institution, that has employed the person within the last ten years of employment; (i) All periods of claimed self-employment, including a description of all duties and responsibilities thereof; (j) All previous experience in the field of claimed expertise which involved problems, analyses or studies similar to those concerning which the person is expected to testify in this proceeding; (k) All other litigation in which the person has been consulted, specifying those matters in which the person has testified, including the name of the case or matter and the court or other forum in which testimony was given; and (1) Any other experience in the field of claimed expertise.

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e. State whether the facts and opinions listed in response to the foregoing are contained in any document;

f. State whether the opinion of any expert witness is based in whole or in part on any scientific rule or principle, and, if so, set forth such rule or principle;

g. State whether the opinion of any expert witness is based in whole or in part on any code or regulation, governmental or otherwise, and, if so, identify each such code or regulation and the specific section or portion thereof relied upon; and

h. State whether the opinion of any expert witness is based in whole or in part upon any scientific or engineering book or other publication, and, if so, identify the book or publication."

These questions will be answered with respect to the.two experts Mass. AG seeks to depose. Mass. AG has received already detailed affidavits of both these experts in connection with motions for summary disposition. In addition, Mass. AG will receive well in advance of the hearing the complete direct testimony of both these experts.

Unless Mass. AG can show some way in which his request for more discovery of these experts could lead to admissible evidence, he should not be permitted to conduct a superfluous cross-examination.

Regarding KLD's methodology and assumptions in particular, Mass. AG has availed himself of the opportunity to ask many long and detailed questions and many follow-up questions. Mass. AG now claims generally: ,

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" Interrogatories alone have proven to be  ;

inadequate to explore fully all the l important issues regarding the adequacy )

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and reliability of the ETE study. A deposition of Mr. Lieberman will allow the Attorney General to obtain a great deal more information about KLD's methodology and assumptions than can be obtained in any other way."

Mass. AG's " Application for a Subpoena Directed to Edward B.

Lieberman at 2.

Mass."AG has not advanced a single example of how his interrogatories have been inadequate and how or why he plans to ask better questions at a deposition. He has failed entirely to suggest what further information he can hope to gain that he has not already been given.a His second set of interrogatories asks a series of follow-up questions on the ETE study. See, e.g., Interrogatories 12, 14, 16, 17, 18, 19, 20, 21, 22 25, 26, 29, 31, 32, 33, and 55.4 Mass. AG has failed to make any showing that a deposition is 3 Mass. AG has made only one statement which could be construed as a complaint that his interrogatories are inadequate. Mass. AG's second set of in errogatories complain that KLD's voluntary offer to afford Mass. AG access to the computer and model at KLD is " unreasonably expensive and unreasonably intrusive." Mass. AG's

" Interrogatories and Request for the Production of Documents to the Applicants (Set No. 2)" at 19. Mass.

AG asks for a separate copy of the model. Id. It is true that this interrogatory is inadequate but the inadequacy cannot be cured by a deposition. As Mass. AG has been told several times, the Applicants and KLD do not own the model and so cannot copy and deliver it to Mass. AG upon demand. This would be true at a deposition as well as a document production.

• These follow-up questions are, of course, in addition to the interrogatories on the ETE study which Mass.

AG asked in his first set of interrogatories.

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' S necessary or would amount to more than a dress rehearsal for his cross-examination of Mr. Lieberman.

Mass. AG has identified the sole area of inquiry he seeks of Dr. Mileti:

"[T]he Attorney General wishes to understand exactly how Mr.[ sic] Mileti arrived at his conclusion regarding th[e] assumption (that 25 percent of the population within the EPZ, but outside the Region ordered to evacuate, will spontaneously evacuate, contrary to instructions.]"

Mass. AG's " Application for a Subpoena Directed to Dennis S.

Mileti" at 2. Mass. AG has not even attempted to argue why more than one interrogatory would be inadequate to obtain such information. Mass. AG has made no showing as to why the answers to his interrogatories will not suffice.

In the event this Board permits the deposition of either of these experts, however, Applicants request that the Board rule that the deposition be taken at the deponents' place of business or within reasonable proximity thereto and that the deposition be limited to two days in the case of Mr.

Lieberman and one day in the case of Dr. Mileti and that, pursuant to Fed. R. Civ. P. ?,6(b)(4)(C), Mass. AG pay these experts a reasonable fee for their time expended in o

depositions.

These experts should be compensated at their normal hourly rate for such extra discovery efforts.

By their attorneys, Thomafs G. D i'g n a n , Jr.

George H. Lewald Kathryn A. Selleck Ropes & Gray 225 Franklin St.

Boston, MA 02110 (617) 423-6100 f

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F 00LKEfU; U%HC CERTIFICATE OF SERVICE I

I, Kathryn A. Selleck, one of the attorneys for dh5AY 27 P5:04 Applicants herein, hereby certify that on May 21, 1987, I made service of the within document by depositing sopies 3 ja thereof with Federal Express, prepaid, for deliverf 0bo f(or, y avla where indicated, by depositing in the United States mail",^NO!

first class postage paid, addressed to):

Administrative Judge Helen Hoyt, Robert Carrigg, Chairman Chairperson, Atomic Safety and Board of Selectmen Licensing Board Panel Town Office U.S. Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Judge Gustave A. Linenberger Diane Curran, Esquire Atomic Safety and Licensing Andrea C. Ferster, Esquire Board Panel Harmon & Weiss U.S. Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.

East West Towers Building Washington, DC 20009 4350 East West Highway Bethesda, MD 20814 Dr. Jerry Harbour Stephen E. Merrill Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway Concord, NH 03301-6397 Bethesda, MD 20814

• Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Tenth Floor 7735 Old Georgetown Road Bethesda, MD 20814

• Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P.O. Box 516 Commission Manchester, NH 03105 Washington, DC 20555

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Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney General 25 Maplewood Avenue One Ashburton Place, 19th Floor P.O. Box 360 Boston, MA 02108 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 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. Peter J. Matthews one Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950 Mr. Thomas F. Powers, III Mr. William S. Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RED Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.

Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301

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s Mr. Ed Thomas Judith H. Mizner, Esquire FEMA, Region I Silverglate, Gertner, Baker, 442 John W. McCormack Post Fine, Good & Mizner Office and Court House 88 Broad Street Post Office Square Boston, MA 02110 Boston, MA 02109 Charles P. Graham, Esquire McKay, Murphy and Graham 100 Main Street Amesbury, MA 01913 4-Kathtyn A. Se1Teck

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