ML20214R998

Memorandum & Order.* Applicant 870410 Motion to Compel Info Re Each Case Expert Witness W/O Limitation as to Scope Denied.Served on 870602

ML20214R998
Person / Time
Site:	Comanche Peak
Issue date:	06/01/1987
From:	Bloch P Atomic Safety and Licensing Board Panel
To:	TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
References
CON-#287-3645 79-430-06-OL, 79-430-6-OL, LBP-87-18, OL, NUDOCS 8706090087
Download: ML20214R998 (6)

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y//5' LBP-87-18 00CHE TC UNITED STATES OF AMERICA N

. NUCLEAR REGULATORY COMMISSION

/. b,f i- Before Administrative Judges: '87 JUN -2 A11l24 y

. Peter B. Bloch, Chairman OF. . . .s Or. Kenneth A. McCollom ' N'% d*

Dr. Walter H. Jordan

$ERVED JUN -21987

) ,,, 1 F In the Matter of,  ; Docket Nos. 50-46-OL

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, ./ 50-446-OL l

TEXAS.

llTIL LTIES ELECTRIC COMPANY, et al. ,i i

) ASLBP No. 79-430-06 OL 3 (Corrahche Peak Steam Ddctric Station. ) -

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Uhits 1 and 2) 9 6" /

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) June'1,'1987,

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. M MORANDUM AND ORDER ,I ' (

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MEMORANDUM i (Discovery Sets 19876,7)

On April 10, 1987, Texas 't/tilities Electric to., et al. filed a x Motion to Compel with respect to four questfols comprising Sets 1987-6 ,

b.nd-7.I Citizens' ' Association for Sound Energy (' CASE) responded on ,

April 27, 1987 (Response).

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I. Legal Principles ,

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fThe applicable legal principles are straightforward. Under 10 CSS **

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.,i; $2.740(b) parties may obtain discovery regarding any j matter, not privi- <

I - l leged, which is relevant-to the subject matter' involved in the proceed- ,

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s, ing. An exception has been created for non-witgess experts (experts 4 hired in anticipation of litigation but not expected to testify), whose *

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• .. , r s 1 Motion \t o Coiapel at 2.' ,1 4

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Discovery 1987 - 6,7: 2 testimony may not be elicited except under special circumstances.

Kerr-McGee Chemical Corporation, t.BP-85-38, 22 NRC 604, 610, 613-614 (1985).

II. Motion to Compel 1987-6 Set 1987-6 is a single interrogatory asking CASE to provide infor-mation concerning each and every expert witnesses, without limitation as

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to scope. Applicants claim that it is only fair that CASE respond because Applicants have already been required to respond concerning their expert witnesses.

CASE's Respanse is that it has answered this question as well as it can by stating that it has not yet identified any expert witnesses.2 It also states that this Board has never required Applicants to file infonnation concerning non-witness experts, but that we have clearly ruled at Tr. 24793-4 that CASE could obtain information about the work of the Comanche Peak Response Team, which is work that is directly relevant to the correction of deviations found in the plant and is therefore not covered by the non-witness expert exception.3 2

Response at 2.

3 Whether a subpoenaed party is an expert specially retained in anticipation of litigation is necessarily a factual determination, in this case based on the evidence of the expert's relationship with the licensee. Kerr McGee at 613.

l Discovery 1987 - 6,7: 3 We agree with CASE that.we have not required Applicants to disclose information about work being done by consultants employed solely as non-witness experts. Likewise. -we would not require CASE to disclose the names of individuals whose role is solely as non-witness experts.

A part of the difference here is that Applicants are still respond-

.ing to Board findings, in December 1983, that the design of the plant and Quality Assurance for design are deficient. They are also respond-I ing, within the scope of Contention 5, to findings of the Nuclear Regulatory Commission Staff of deficiencies in QA for construction.

Other! portions of their current efforts are now -indirectly related to CASE and' Staff allegations, steuning from Cygna findings and CPRT ~

findings. All of this is basic information about the plant relevant to Contention 5.

2 In the present instance, there is some ambiguity as to what a

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witness is. The ambiguity arises because the Board issued an order stating some of its concerns about the adequacy of the CPRT plan. No i.

one needed to respond to those concerns, which were stated for the purpose,of disclosing the Board's thinking and avoiding surprise that might occur after the Applicants had implemented an extensive program of l

I research and corrective action. . However, both App 1'icants and CASE have f responded. We received and read their responses, but we treated them in-the nature of Board notifications. They are not part of the record and l

t not in evidence. We do not consider that the filing of an affidavit as part of such a filing makes the individual a " witness."

There will come a time when CASE will need to disclose expert i witnesses. It has acknowledged that in its Response. CASE also L

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Discovery 1987 - 6,7: 4 has agreed that when it has identified expert witnesses, it will file their names.

There is nothing for us to compel with respect to this interrogato-ry.

III. Motion to Compel 1987-7 These interrogatories appear to be designed to clarify what the meaning of "Walsh/Doyle Allegations" is. CASE's response is that it did not originate the term and is not sure what it means.4 The Board considers CASE's response to be complete, particularly considering the six page history furnished by CASE in its Response.5 The Walsh/Doyle allegations are in the record and CASE need not have assisted Applicants to search the record, even to the extent that they have.-

This said, we realize that we are only asked to speak on a defini-tional matter. Applicants should be aware that what is transpiring appears to be a continuously opening cone of items descended from initial Walsh/Doyle contentions. It appears that both Applicants and CASE agree that Walsh/Doyle issues are defined in the record of the proceedings. Under the circumstances, the Applicants are as able to 4

Response to Interrogatories, March 23,1986 at 4.

5 Response to Interrogatories, March 23,1986 at 5-10.

Discovery 1987 - 6,7: S search the record (and undoubtedly already have done so as part of the CPRT project) to identify Walsh/Doyle issues.

Of course, in the following stage of proceedings, after Applicants have determined the proper resolution of Walsh/Doyle issues, there will be massive new documentation concerning plant safety. At that time, it will be essential to recognize the developing nature of this case and to narrow the issues for trial. A fair procedure will, in time, be adopted for that purpose, upon motion. At the present time, however, we are still awaiting Applicants' effort to accurately depict its current program. Applicants themselves do not yet have a final position on which Walsh/Doyle issues they accept as valid.

Given that the issues to be litigated are still unfolding and that we have no proposal for efficiently addressing the constantly changing flux of Applicants' work, the time for narrowing issues has not yet come. Nor do we think it appropriate to require CASE to further list or discuss issues already raised by it on the record of this case.

IV. Summary The complexity of this case results from CASE's success in raising questions of substance that have not yet been resolved. Given Appli-cants' own difficulty in resolving those questions, as well as the Staff's reluctance to approve Applicants evolving response, it would not be proper for us to require CASE to clarify its position at this time.

Hence, we shall deny the motion to compel in its entirety.

Discovery 1987 - 6,7: 6 0RDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 1st day of June 1987 ORDERED:

That Applicants' Motion to Compel, filed April 10, 1987 is denied.

FOR THE ATOMIC SAFETY AND LICENSING BOARD f /- .i }.

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Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland disc 6-7/BLOCH2 E

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