ML20214S960

Supplemental Response Opposing Case 860627 Motion to Compel Response to Request 4 Re Production of Documents.Certificate of Svc Encl

ML20214S960
Person / Time
Site:	Comanche Peak
Issue date:	09/25/1986
From:	Eggeling W, Selleck K ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:
References
CON-#386-903 OL, NUDOCS 8609300149
Download: ML20214S960 (12)

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. DOCKETED USNRC j6 S9' 29 R2:03 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION cpg,;g y ::', * -

0006.it h 5 i before the !I; NM ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL and COMPANY, et al. ) 50-446-OL

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(Comanche Peak Steam )

Electric Station, )

Units l'and 2) )

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APPLICANTS' SUPPLEMENTAL 1 RESPONSE TO " CASE RESPONSE TO APPLICANTS' MOTION FOR PROTECTIVE ORDER RE 6/27/86 DISCOVERY AND MOTION TO COMPEL" CASE's 6/27/86 Request for Production of Documents comprised six numbered paragraphs. Four2 of those have now been fully responded to, and Applicants are unaware of any potential dispute which may remain regarding those portions 2

Applicants' original Response was served on September 2, the same day the Board issued its Memorandum and Order regarding Management Issues, etc. Inasmuch as a portion of that Response had discussed those." issues" without the benefit of the Board's directly expressed views, the Chairman of the Panel gave Applicants until Friday, September 26, to present any supplementation thought appropriate. Thi's is that submission.

2 Numbers 1, 2, 3 and 6.

8609300149 860925 PDR G ADOCK 05000445 PDR DJ43

r of the Request. Another, Request No. 5, pertained solely to information of potential relevance only to the Construction Permit Extension litigation,3 and is, we submit, effectively moot. Applicants thus believe it necessary to supplement their previous response hereinafter only with respect to Request No. 4.

I.

Request No. 4 sought:

With respect to each document identified on Attachment 1 to Texas Utilities Electric Company, et al., Response to Interrogatories and Requests for Documents dated June 16, 1986, (CPA Dkt.) a copy of all documents that (1) evaluate the findings and/or recommendations in those documents, (2) propose actions to be taken in response to the findings and/or recommendation, and (3) direct implementation of any actions in response to the findings and/or recommendations.

The source list for this Request was compiled in 3 CASE did suggest in its Motion to Compel that the documents described by Request No. 5 could be justified on the basis of their alFeged relevance to a

" management" issue. But ~ the issue to which this suggestion was addressed was specifically that of the

" competence and character" of current TUGCO management.

CASE Motion to Compel at 10. We have previously set forth the reasons why this putative issue cannot be in

! this case, and why we do not understand the Board to disagree with us. See, e.g., Applicants' Response to Board's September 2, 1986 Memorandum and Order at

,. pp. 3-5, filed September 12, 1986. Absent some reason to reexamine these points, therefore, we shall not extend this Supplemental Response by commenting again on the obvious impropriety of Request No. 5.

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F response to the following interrogatory.in the Construction Permit Extension litigation:

3. Identify all audits, reviews, diagnoses, evaluations, consultant reports, in-house audits, or other reports which Applicants received from the beginning of construction to the present assessing, analyzing, commenting on, discussing, or offering an opinion on the plant's construction, procedures, compliance with industry or agency standards, or management style or competence. (This should include all source documents listed in Appendix B to Case's Request for Imposition of Fine, Suspension of Construction Activities, and Hearing on Application to Renew Construction Permit 1/31/86.)

It is thus apparent that the scope of the CASE request is immense. The documents originally identified numbered in the high thousands, and covered topics which had no relevance whatsoever to the CASE contention-that the Project's QA/QC was untrustworthy.

II.

Applicants objected to this Request on three grounds

(1) that it was overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence; (2) that it was contrary to the discovery suspension orders issued in the CPA docket; and (3) that it transgressed prior Board orders curtailing such general discovery. It is clear that each of these objections remains fully adequate to require denial of CASE's motion to

compel further responses to Request No. 4. Inasmuch as the second and third grounds have been treated in previous filings and, moreover, would not seem to be logically affected by the clarifications provided by the Board's September 2 Memorandum, _we believe it appropriate to confine our remarks in this supplemental filing to certain aspects of ground of objection number 1.

III.

A.

The fundamental problem is that, although denominated a Request for Documents, Paragraph No. 4 is not such a creature. To the contrary, the Rules of Practice require that a document production request describe with particular specificity the categories of documents or things sought to be examined:

The request shall set forth the items to be inspected either by individual request or by category, and describe each item and category with reasonable particularity.

10 CFR $ 2.741(c). A proper request is therefore, for example, "all draft NCRs," or "all correspondence with X,"

or even "all vendor files created during the period X through X." Each of these, and the innumerable obvious permutations, reflects proper adherence to the requirement that a document request must be sufficiently particularized to inform a reasonable man which documents are called for.

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-g Westhemeco Ltd. v. New Hampshire Ins. Co., 82 F.R.D. 702, 709 (S.D.N.Y. 1979); Mitsui & Co. v. Puerto Rico Water Resources. 79 F.R.D. 72, 82 (D. Puerto Rico 1978). Request No. 4,.to the contrary, requires the applicants to analyze.

thousands of documents, and to study how the ideas in each document evaluate, discuss or were influenced by the items produced in response to the June 16, 1986 request. In other words, Request No. 4 requires the applicants to not simply produce documents, but also to synthesize the contents of thousands of papers in its possession and, having carried out that-analysis, present the finished product to Intervenor. Rule 34 does not authorize imposing such a duty on applicants. Rule 34 was " surely not intended...to permit

[the party-carrying out discovery] a roving inspection of a promiscuous mass of documents" to find a few which might, conceivably, be relevant. Kenealy v. Texas Co., 29 F.. Supp.

502, 503 (S.D.N.Y. 1939). See also Segan v. Dreyfus Corp.,

t 513 F.2d 695, 696 (2d Cir. 1975) (forbidding use of document request as " fishing expedition"), and United States v. R.J.

i i Reynolds Tobacco Co., 268 F. Supp. 769, 777 (D.N.J. 1966)

(forbidding use of document request as " roving commission to i

examine materials which might be relevant"). It certainly cannot authorize requiring the victim of the discovery l request to carry cut that same review on another party's t

l behalf.

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a Indeed, whether Request No. 4 is viewed as a Rule 34 Document Production Request or some other type of discovery vehicle, it plainly asks for exactly the sort of analysis and investigation which CASE, like all other litigants operating under federal discovery principles, may not shift to its adversary. See, e.g., Halder v. Intern. Tel. & Tel.

Co., 75~F.R.D. 657, 658 (E.D.N.Y. 1977) (defendant should not be compelled to " engage in extensive research and compilation, particularly where the purpose of the effort is to assist plaintiff'in the preparation of his case");

Aktiebolaget Vargas v. Clark, 8 F.R.D. 635 (D.D.C. 1949) ("A litigant may not compel his adversary to go to work for him"). See also Houdry Process Corporation v. Commonwealth Oil Refining Co., 24 F.R.D. 58 (S.D.N.Y. 1959) (document production request requiring' party "to decide whether exploratory talks with third parties relate 'directly or indirectly' to" case improper).

B.

It is similarly plain.that the Request is, even on its own terms, egregiously overbroad and concomitantly unduly burdensome. While the documents identified in-response to the original underlying interrogatory may have had arguable relevance to the issues then encompassed by the Construction Permit Extension proceeding, their number clearly far I

exceeds even the broadest possible interpretation.of the boundaries of the issues subsumed within Contention 5 in this case. For example, the S&L Reports identified in

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response to the interrogatory contain " findings" of defects in industrial safety procedures and in construction scheduling methodology. Such findings, whether they led to further documents or not, have no conceivable relevance to the quality of CPSES QA/QC programs. It should not be necessary to provide a host of other examples to meet Applicants' responsibility of demonstrating the overbreadth of the CASE request. See Richlin v. Sigma Design West, Ltd., C8 F.R.D. 634, 640 (E.D. Cal. 1980).

Viewed in the context of the additional obligations ordered by the Board in its September 2 Order, moreover, the defect of overbreadth is even more glaring.4 Applicants will now be producing all information relevant to the

" management issues," as there defined, whether derived from Applicants' documentary records or in the knowledge of its relevant employees. Inasmuch as this information necessarily encompasses all that CASE may be entitled to in

• Note that the Request is-facially defective in this area as well. By incorporating the interrogatory which was deemed proper in the CPA case as its springboard, CASE's Request expressly demands documents derived from

" management style or competence" concerns which have no place in this OL proceeding.

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r order to' prepare itself to litigate these aspects of Contention 5, the demand that Applicants undertake additional investigative burdens of almost unfathomable dimension is without parallel in the decided precedents.

C.

Finally, we note Request No. 4 will not lend itself to the narrowing technique utilized by the Board in connection with Interrogatories 3-7 which were the subject of the September 2 Memorandum and Order. This.is again primarily due to its fundamental flaw -- it is simply not a proper request for documents.

It is comparatively simple to demonstrate the breadth of this flaw. For example, in the case of Questions 3 and 4 of the CASE July 2 Interrogatories (and their analog, the Board's Request No. 4 of August 8, 1986), it was possib'le to direct Applicants to provide the answers insofar'as defined

" management issues" were revealed to be intertwined with the results of the CPRT's committed investigations. The CPRT's investigations, already laid out by protocols and plans in the course of a multi-million dollar undertaking, will lead l

Applicants to the information responsive to the Board's concerns in some rational fashion. By comparison, it is simply impossible to start with a document identified on the list provided in response to Interrogatory 3, suora, and

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determine ab initio whether any " findings" contained therein I

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may have spawned additional documents which evaluate or recommend anything with respect to those " findings" (or any of the other several steps required by the CASE demand).

One must instead first expend potentially limitless efforts to determine whether there are any such trails and where they may lead. It is impossible _to know before this effort has been completed whether the trail may cut across a

" management issue," as that term is now understood, since there is no way to tie the inquiry to the findings of the

-CPRT with regard to any valid criticisms of Applicants' historic QA/QC program.5 CONCLUSION Even with the added benefit of the Board's September 2 definitions of the scope of permissible "managment issues" in this proceeding, it remains clear that Request No. 4 is ,

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l We note as well that to the extent that the documents l~ within Request No. 4's almost limitless boundaries are properly of interest to CASE and the Board, they should be identified and produced by the process initiated by the Board's September 2 Order. There would seem to be little chance that CASE will be-deprived of anything to

! which it has legitimate need.

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1 wholly improper. CASE's motion to compel a response thereto must therefore be denied.

Respectfully submitted hkh b. . o 'u  ! S g+ n a Th;m'as G. Dignan, Jr.

R.K. Gad III William S. Eggeling Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA .02110 (617) 423-6100 i

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. 00LKETED USNRC CERTIFICATE OF SERVICE I, William S. Eggeling, one of the attorneys fh tb pp ts herein, hereby certify that on September 25, 1986,0Filotade tservice 00CKETthu i 5f 9VICI.

of the within document by mailing copies thereof, post $he[ N repaid, to:

' Peter B. Bloch, Esquire Mr. James E. Cummins Chairman Resident Inspector Administrative Judge Comanche Peak S.E.S.

Atomic Safety and Licensing c/o U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory P.O. Box 38 Commission Glen Rose, Texas 76043 Washington, D.C. 20555 Dr. Walter H. Jordan Mr. William L. Clements Administrative Judge Docketing & Services Branch 881 W. Outer Drive U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Washington, D.C. 20555 Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Stuart A. Treby, Esquire Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S. Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission 7735 Old Georgetown Road Roon 10117 Bethesda, Maryland 20814

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Renea Hicks, Esquire -Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licens_ng Environmental Protection Division Board Panel P.O. Box 12548, Capitol Station U.S. Nuclear Regulatory Commission Austin, Texas 78711 Washington, D.C. 20555 Anthony Roisman, Esquire Nancy Williams Executive Director Cygna Energy Services, Inc.

Trial Lawyers for Public Justice 101 California Street 2000 P Street, N.W., Suite 611 Suite 1000 Washington, D.C. 20036 San Francisco, California 94111 Dr. Kenneth A. McCollom Mr. Lanny A. Sinkin Administrative Judge Christic Institute 1107 West Knapp 1324 North Capitol Street Stillwater, Oklahoma 74075 Washington, D.C. 20002 Ms. Billie Pirner Garde Mr. Robert D. Martin Midwest Office Regional Administrator, 3424 N. Marcos Lane Region IV Appleton,-WI 54911 U.S. Nuclear Regulatory Commission Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 Elizabeth B. Johnson Geary S. Mizuno, Esquire Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P.O. Box X, Building 3500 U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Maryland National Bank Bldg.

Room 10105 7735 Old Georgetown Road Bethesda, Maryland 20814

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William S. Egge .' n g

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