ML20215L273
| ML20215L273 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/08/1987 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#287-3434 CIV-PEN, NUDOCS 8705120169 | |
| Download: ML20215L273 (169) | |
Text
{{#Wiki_filter:- - - @R G N'AL n UNITED STATES v NUCLEAR REGULATORY COMMISSION IN THE MATTER OF: DOCKET NO: 50-320 (Civil Penalty) GPU NUCLEAR CORPORATION (Three Mile Island Nuclear Station, Unit No. 2) \\ LOCATION: BETHESDA, MARYLAND PAGES: 19 - 224 (IN CAMERA SESSION, BOUND SEPARATELY, PAGES 101 - 138 ) DATE: FRIDAY, MAY 8, 1987 ff. 0l 0 \\ d Q'f") h*"' (fehrn ACE-FEDERAL REPOR'ERS, INC. O OfficialReporters 444 North CapitolStreet Washington, D.C. 20001 (202) 347-3700 8705120169 870508 PDR ADOCK 0500 0 NATIONWIDE COVERAGE
CR30884.0 19 .CLW/sjg I-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 3 4 - - - -x 5 In the Matter of: Docket No. 50-320 GPU NUCLEAR CORPORATION (Civil Penalty) 6 (Three Mile Island Nuclear 7 Station, Unit No. 2) 8 - - - - - - - - - - - - - - - - - -x 9 Nuclear Regulatory Commission Fifth Floor Hearing Room 10 4350 East-West Highway Bethesda, Maryland 12 Friday, May 8, 1987 13 The prehearing conference in the above-entitled matter 14 convened at 10:00 a.m. 15 BEFORE: 16 17 IVAN W. SMITH Administrative Law Judge 18 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555 g 20 21 22 23 ) -25 -- continued -- ACE-FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coserage 8(Wh3366646
20 1 APPEARANCES: xJ On behalf of the Applicant: DAVID R. LEWIS, ESQ. J. PATRICK HICKEY, ESQ. 4 Shaw, Pittman, Potts & Trowbridge 5 2300 N Street, N.W. Washington, D. C. 20037 6 On behalf of the United States Department of Labor: 8 FORD NEWMAN, ESQ. U. S. Department of Labor 9 200 Constitution Avenue, N.W. Room N-2716 10 Washington, D. C. 11 On behalf of the United States Nuclear Regulatory Commission: ()i GEORGE E. JOHNSON, ESQ. (- 13 GREGORY ALAN BERRY, ESQ. U. S. Nuclear Regulatory Commisson 14 Office of the Executive Legal Director Washington, D. C. 20555 15 16 17 18 19 20 21 22 23 () 24 25 ACE. FEDERAL REPORTERS, INC. j 202 347 37(x) Nationwide Coserage 8(W)-336-6646
CERTIFICATE OF OFFICIAL REPORTER p-O This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of: NAME OF PROCEEDING: GPU NUCLEAR CORPORATION (Three Mile Island Nuclear Station, Unit No. 2) DOCKET NO.: 50-320 (Civil Penalty) PLACE: BETHESDA, MARYLAND DATE: FRIDAY, MAY 8, 1987 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission. (sigt (TYPED) BARBARA L. WHITLOCK Official Reporter ACE-FEDERAL REPORTERS, INC. Reporter's Affiliation 4 O> R-l
8840 01 01 21 ( b/bc 1 PROCEEDINGS 2 JUDGE SMITH: Good morning, gentlemen. Are we 3 ready to proceed? 4 MR. BERRY: Yes, we are, your Honor. 5 JUDGE SMITH: Everyone is here. I understood 6 that there is a possibility that the Deputy solicitor of the 7 Department of Labor might be here. 8 MR. BERRY: He is here, your Honor. Mr. Ford 9 Newman, sitting to my extreme right, is representing the 10 Department of Labor. 11 JUDGE SMITH: First, I will go over the sequence 12 of events, the sequence of how we will take up the agenda. 's / 13 And then give the Department of Labor an opportunity, if it 14 wishes, to go out of order and transact business if you do 15 not want to stay. 16 This is a rather heavy workday. We have 17 accumulated many items of discovery dispute. We will take 18 them up pretty much chronologically, that is, in the order 19 in which the disputes arose. 20 First, we will inquire, as we usually do, is 21 there any preliminary business? Is there any new 22 developments in this case, since we had the informal 23 telephone conference the other day, that anyone wishes to 24 raise? A (_) 25 MR. BERRY: Yes, sir. Thank you, Judge Smith. ace FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Cmerage m)-3%(M6
r__ 8840 01 01 22 ,m ( [?/bc 1 Yesterday, I received from Mr. Hickey -- Mr. 2 Hickey's co-counsel, Mr. Richardson -- a letter in response 3 to my April 28th letter to Mr. Hickey requesting some 4 information as to the availability of Mr. E. Hoffman for 5 deposition. 6 Mr. Richardson responded to that request.
- And, 7
although it is helpful, it is still somewhat unclear as to 8 when Mr. Hoffman will be available. 9 I would just note at this time that we expect to 10 hear from Mr. -- from GPU in the very near future as to when 11 we can schedule that deposition. But, staff has received a 12 response to the April 28th letter, and I believe the Board O' 13 should be aware of that. 14 JUDGE SMITH: Yes, I received a copy of it. 15 MR. HICKEY: Judge Smith, if I may, since I have 16 not had the opportunity before, let me introduce myself. I 17 am Patrick Hickey. I have not appeared before your Honor 18 before. 19 Mr. Lewis is at my left, and I think you know Mr. 20 Blake. 21 JUDGE SMITH: Welcome, Mr. Hickey. 22 MR. HICKEY: Thank you. 23 JUDGE SMITH: Before we get into the particular 24 discovery items, I would like to make some comments about my 25 perception of the overall problems that we are facing in ACE-FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coserage MXh336446
8840 01 01 23 g /bc tJ 1 these discovery disputes. 2 I went back to the first prehearing conference 3 and I read Mr. Johnson's description of how he views this 4 proceeding. He regards it as a dual motive proceeding. It 5 could just as well be called perhaps an alternative motive, 6 or a two-motive proceeding. 7 And he also presented a logical explanation of 8 how the caso could unfold, the shifting burdens. First, it 9 would be the NRC's staff requirement to demonstrate that the 10 employment action was as a consequence of protected 11 activity. 12 And then the licensee would be permitted to come (~s \\_) 13 up with a defense that whatever happened, it was not as a 14 consequence of protective activity, that there was 15 legitimate reason for its action. Or, for that matter, it 16 could be actually nonlegitimate reasons so long as it is not 17 a protected reason. 18 The trouble, however, since then, since your 19 acknowledgment that that would be the case, is that the 20 staff has not approached discovery, recognizing that GPU 21 then has a right to establish its own theory of its own 22 case. 23 This comes up in times when you say that certain 24 matters are not, simply not relevant to the case. Coming to 25 mind is the mystery man issue. Ace FEDERAL REPORTERS, INC. 202-347-37(x) Nationwide Coserage M(43364M6 m
8840 01 01 24 p-t J/bc 1 It is going to be up to GPU to develop its case, 2 and it is not by any means bound by the staff's theory of 3 the case. 4 I'm also concerned about the direction that the 5 case is going with respect to Mr. Parks -- the role of Mr. 6 Parks as an actor in this proceeding, or in these events. 7 As a witness, obviously, his credibility is 8 relevant. But it does not in itself authorize unlimited 9 discovery to determine if Parks is credible because if Parks 10 is not a credible person, that credibility or noncredibility 11 is available in other aspects, non-NRC aspects. A person 12 does not suddenly become credible or noncredible because of n k-) 13 particular events, but GPU has apparently developed its 14 position and has some evidence that the NRC does not believe 15 Parks is always credible, too. And that is a genuine area 16 of inquiry. 17 So, more inquiry would be justified. The most 18 likely source of information available to GPU to impeach 19 Parks would be NRC information, because that will be coming 20 up in the hearing; as compared, for example, to instances 21 outside of the proceeding, something unrelated to GPU or 22 Parks where Parks may have demonstrated untrustworthiness in 23 his truthfulness. 24 And there's also an important difference in the 25 duty of a person to be honest and straightforward in ace-FEDERAL. REPORTERS, INC. 202-347-370) Nationwide Coverage MD-336416
8840 01 01 25 ,~~ t,J/bc 1 ordinary conversation, as compared to officially reporting 2 to a United States government agency or any agency. 3 So I think there is a difference in important 4 degree as to whether Parks may have been credible on the 5 street, at work, some place else, as compared to statements 6 made to the United States government agency, which carry a 7 much higher responsibility for accuracy. 8 Therefore, a credible statement or incredible 9 statement to the government is especially -- would be 10 especially valuable in assessing Mr. Parks' credibility. 11 In sum, what I am saying is that I think that 12 GPUN has a good reason, good cause to explore within the NRC (3 \\-) 13 and the United States government agencies Parks' 14 credibility, because it is a special standard of credibility 15 and has special relevance to the proceeding. 16 And now there is another area of Parks' character 17 or credibility, or let's say, personality. And that, as an 18 employee, he was said by GPU to be making statements which 19 were not accurate and which would be, as I understand the 20 case, indicate that the statements themselves, and Parks, 21 himself, was disruptive in the ordinary legitimate business 22 of the activities. 23 I think that is a perfectly logical, appropriate 24 way to approach it. Apparently, the mystery man statement 25 is an example. Middletown Mothers, and other things, are ACE FEDERAL, REPORTERS, INC, 202-347-3700 Nationwide Coverage 800-336-6646
8840 01 01 26 /~T U.?/bc 1 some_ examples. 2 .After the fact, evidence of Parks'-false 3 statements, if such they be, do not directly help GPU in 4 establishing that at the time of the job, discipline against 5 Parks, that that was the reason that they did it. 6 So the things that you might develop about Mr. 7 Parks' activities and statements and disruptive actions 8 after the fact do not directly help support Mr. Arnold's 9 position that some action was taken against Parks because of 10 his disruptive activities, because it is what Mr. Arnold 1 11 knew, himrsalf, at the time; even mistakenly as to what his 12 state of mind was, it would be important. 13 On the other hand, if the GPU officials' versions 14 about why they acted remains in doubt as far as the staff is 15 concerned, and it will be disputed, then Parks' credibility, 16 disruptive personality, whatever it is, destructionism -- 17 these are not my words. These are may be very inaccurate 18 paraphrases of what I understand GPU's position is. 19 But, if the NRC staff is going to dispute, as it 20 seems that they are, then it is perfectly appropriate for 21 GPU to look for cooperation, even though it was facts not 22 then known to Mr. Arnold and GPU officials to look for core 23 operation to support what they perceive the situation to be 24 is more likely to have been accurate. () 25 What we will have to know, would be very helpful ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6M6
=8840 01 01 27 N (~'i!/bc - is to what extent the NRC challenges the factual s_ 1 to know, 2 perception, or the perception of the facts of GPU and 3 officials as they took the transfer action, suspension 4 action against Parks. 5 Since the beginning of this case, there has been 6 a mountain of discovery, lots of information. I do not even 7 get it all, but it occupies a big part of the table in my 8 office. 9 If it comes to pass that the NRC staff believes 10 that the-facts and the notice of violation are not as 11 stated, or that they believe that perhaps there is some 12. merit to GPUN's position, I would expect an early ,-s() 13 acknowledgment of that fact. 14 In'other words, I do not expect that the NRC 15 staff has an obligation after they know better, if they do, 16 to go to hearing on a case that should be changed. ~ 1'7 I'm not saying or suggesting that events come to 18 pass that you might just dismiss the action, but I think we 19 should know early where there are no longer areas of factual 20 dispute. And we will get to that at the end. 21 But, in making determinations of what is 22 necessary for discovery, we will have to know what are you 23 challenging. And if you're not challenging a point, then we 24 don't have to discover it. , s. '_) 25 So it is those general thoughts that lead me to \\ ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 80tk336-6646
8840001 01 28 m L 3/bc 1 go into the-particular issues. Now, what we would hope to 2 take up'would be,-first, the -- do you have any questions 3 -. about those observations? 4 (No repsonse.) 5 JUDGE SMITH: First, we would hope to take up the 6 first-motion to compel and that will take up what I view the 7 surviving part of that. And that-is a discussion of some 8 seven or eight documents, which the staff asserts are 9 privileged. And then the matter of the deposition of Mr. 10 Meeks, which leads into the second motion to compel, the 11 issue of the deposition of Mr. Feinberg in the Department of 12 Labor and the demand for the case file, followed by the 13 staff's motion for protective order, which also embodies the 14 third motion to compel. 15' The only value I can see -- was that Mr. Lewis? 16 I did not write your name down. From the Department of - 17 Labor? 18 MR. NEWMAN: Mr. Newman. 19 JUDGE SMITH: It is up to you. You are welcome 20 to be here. And, as a matter of fact, I appreciate your 21-being here to help us. The only value-I can see for your 22 remaining -- although we could take your' matter up first, .23 and let you go, if you wish. L 24 There may be some value for you remaining because 25 we're going to develop -- if we should decide that the l l f /\\CE FEDERAL REPORTERS, INC. ( 202-347-3700 Nationwide Coverage 800-336-6646 L_
8840 01 01 29 p /bc' ( .2. 1-Department of Labor has not asserted an absolute privilege 2. against discovery,.then we want to discuss to what extent 3 discovery should be permitted.- And should it be limited or-4 not. 5 And some event discussion might be relevant.to 6 earlier things that we have discussed that will sort of. 7 unfold, particularly a discussion of the deposition of Mr. 8 Meeks. 9 There are parallel considerations. So, if you. 10 are in a hurry, Mr. Newman, we can go immediately to your-11 problem. Otherwise, we can take it up in sequence, which 12 would probably mean an' hour or so. - (O .s-13-MR. NEWMAN: I would appreciate it if we could 14 -just go ahead. 15 JUDGE SMITH: All right. I have before me an '16 updated letter sent directly to me by Gail B. Coleman, the 17 Deputy Associate. Solicitor for Fair Labor Standards. 18 That letter is supported by the NRC staff in 19 their opposition to motions for subpoena. In the letter, 20 Ms. Coleman refers to Department of Labor regulations which 21 prohibit employees or former employees to respond to demands 22 to produce material contained in files..And you cite 23 several cases -- United States ex rel. Touhy v. Ragen; U.S. 24 462., Hotel Employees, Hotel Association, Pension Fund versus 25 Timperio, 622 Federal Supplement 606; Smith VCRC Builders, ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336 4 46
'8840'01 01. 30- .h/bc ' 1 626~ Federal Supplement 12; Reynolds Metals, the Crowther -- 2 and-then~you go on.to discuss it.. 3 I have read each of-those cases and it is my view 4 thatinone of them support the view implicit in the 5 Department's letter, that discovery against the Department 6-of Labor is not permitted. Those cases stand for 7 essentially the fact that the Department, as do other. 8 agencies, has the right to control their' employees with 9 respect to the disgorging of information under subpoena or -10 otherwise. Lil They.do not address -- although some of them do ~ 12 address and-do make a distinction between whether the 13 Department must otherwise disgorge information. And these 1 -14 are not prodiguous. These are housekeeping regulations. US 15
- v. Ragen, in fact, the court-did not -- it is stated that it 16 did not get into the issue of whether the. Attorney General i
17 in that case had the authority to make a conclusive 18 determination not to produce records. 19 The question there was simply an employee 20 following the Attorney General's order was not in himself 21 protected. The Attorney General was not there. 22 In the other cases, these are Department of Labor 23 cases, and they stand solely for the proposition that the [ 24 housekeeping regulations are appropriate in the issues there 4 - 3 ' - s/ 25 are who within the agency has the power to raise papers and J ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 8m336-6646
-8840 01 01 31 pJ/bc l-not whether the agency itself must produce papers. . x, 2 It is my view that:the memorandum of 3 understanding between the NRC and the Department of Labor-in 4 any event would supersede the regulations.- You are bound by 5 contract to cooperate with the NRC. 6 This information -in this proceeding, unliken the 7 civil litigation, it involves the official Department of 8 Labor statutory investigation. It is done in almost 9 impervity with the NRC. And we.will require, unless you can 10 convince me otherwise, Mr. Newman, that the Department of 11 ' Labor produce some information. 12 Now, what information, I don't know. I'm not 13 inclined to grant the motion fully as it is requested. I 14 think some limitation should be put on it. But the way 15 matters stand-now, I am prepared to assign the necessary-16 compelling order, subpoena, or whatever, to require some 17 information. 18 Now, there is another problem. And maybe, after 19 you hear what we want, maybe it will not be a problem. The 20 other problem is the cases that you cite do present 21 practical problems. How would we ever enforce the subpoena? 22 If you arbitrarily refuse to allow your employee to do it, 23 how would we go about it? 24 That one, I am afraid, would be Mr. Hickey's O (_/ 25 problem. Not mine, at least at this time. I would like to i i ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Cmerage 800-336-6636
-8840 01 01 32 L J/bc 1 hear from you on it if you would like to be heard. 2 MR. NEWMAN: First of all, I would like to 3 clarify I am not the Deputy Solicitor. I am from the office 4 of Solicitor, Department of Labor. And I represent the Wage 5 and Hour Division which conducted the investigation in 6 Parks' case. 7 I don't disagree with any of the principles that 8 you just reiterated regarding the case law which we cited. 9 However, it does definitely set up certain 10 procedures that have to be followed before discovery can be 11 taking place in the Department of Labor, and in particular 12 with regard to the subpoena, disciplining of the Department (~)s (- 13 employees, it does not preclude discovery, but it does set 14 forth specific procedures. 15 We feel that we have complied with the memorandum 16 of understanding, and we have also complied with our policy, 17 which is to provide as much information, as much factual 18 information with regard to the case as possible. 19 And in this particular case, we have already 20 generously accommodated GPUN's request for information. We 21 have released all of the witness statements which are 22 contained in the file. 23 We have released to them a full, unedited, 24 unredacted copy of the Compliance Office report. And we A(_) 25 have also informed GPUN of the contents of all of the ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6616
8840 01 01 33 )]/bc 1 exhibits in the file, and have forwarded copies of all of 2 the exhibits to which they might not have access. 3 JUDGE SMITH: Let me interrupt you. Is the 4 request for the case file mooted? It seems to me that I saw 5 surviving there you wanted the case because you hoped that 6 they would contain Mr. Feinberg's notes. 7 MR. HICKEY: I don't believe it is moot, your 8 Honor. I think that there are -- we don't know, but the 9 reason for the subpoena was to determine whether there is in 10 the case file in Harrisburg, which I believe is where it is 11 kept, additional information beyond what Mr. Newman has just 12 described, beyond the full copy of the report, the witness n t.> 13 statements and the other matter that you described. 14 MR. NEWMAN: The investigation file is in my 15 office. I have reviewed it and we have provided all factual 16 and substantive information contained in the file to GPUN. 17 The only remaining material in the file contain 18 interagency memorandum transmittal memoranda, things of that 19 nature. Nonsubstantive. Which we feel would be privileged 20 under the deliberative process privilege. 21 JUDGE SMITH: Are Mr. Feinberg's notes -- 22 MR. NEWMAN: There are no personal notes of Mr. 23 Feinberg in the file. 24 JUDGE SMITH: Are there preliminary drafts of his (V 25 final report? i ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-3364M6
8840 01 01 34 m ( 2/bc 1 MR. NEWMAN: No. All of the facts are -- all of 2 the information which Mr. Feinberg gathered in this 3 particular investigation is contained in the Compliance 4 office report, which is very, very detailed. 5 JUDGE SMITH: Which has already been produced. 6 MR. NEWMAN: Which has already been produced. 7 With regard to Mr. Feinberg, he has been retired from 8 government service for two years. It has been four years 9 since he conducted this investigation. 10 I talked to him just yesterday. He has no 11 personal knowledge of the case. He has retained no personal 12 notes with regard to the case. He simply has nothing to add (~>i (- 13 to the case. 14 He is not permitted to discuss Departmental 15 policy. He is not allowed to render opinions, nor is he -- 16 he simply has nothing which he could -- he cannot qualify as 17 an expert, so there would be no purpose in his further 18 involvement in this particular case. 19 JUDGE SMITH: My inclination, and we would have 20 brought this up in a different sequence -- my inclination 21 would have been not to have permitted, even if they had been 22 so inclined, the discussion of the Departmental policy or 23 privileged information. 4 24 But, more an effort to determine from Mr. () 25 Feinberg whether there are factual elements missing from the ACE-FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coserage 800-336-M>:6
8840H01 01 35 n(.,j/bc 1 final report which would assist GPU in their defense. 2 It may very well be that Mr. Feinberg has no 3 memory of the case, and that may be the case. I think that 4 counsel for the licensee should be given an opportunity at 5 least to prod his memory and satisfy themselves if that is 6 the case. 7 If that is the case, then I think they may feel 8 that they have done a workman-like job in developing their 9 defense. 10 MR. HICKEY: May I comment just briefly about the 11 document issue, whether there are additional documents? 12 The reason for asking for document subpoena, as (_), 13 well as an opportunity to examine Mr. Feinberg, was that 14 there are indications in the record of discovery thus far 15 produced that prompts us to believe that there is at least a 16 possibility of some additional documents. 17 Whether they ever got into the file that Mr. 18 Newman has just described is another question. But there is 19 a memorandum in the record of Mr. Meeks, the OI 20 investigation, obtaining permission from Mr. Parks' lawyer 21 to provide to Mr. Feinberg what he calls, quote, "a complete 22 statement of Mr. Parks' NRC statement." Quote. 23 There is in the DOL file that has been produced 24 so far nothing that looks like that. There may be reasons () 25 for that; although they planned to send it, it did not get ACE-FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Cmerage 800-336-6646
8840 01 01 36 (3 (_,.y bc 1 sent. Maybe Mr. Feinberg got it and sent it back. 2 But, at one point, it appears that there was a 3 document that we have not yet seen. We believe, sent by the 4 NRC to Mr. Feinberg. 5 In addition, there is a telephone memorandum that 6 has been produced in discovery reflecting Mr. Meeks, the NRC 7 Office of Investigations investigator, going to Mr. 8 Feinberg's office to review what he calls supporting 9 documents gathered by Mr. Feinberg in the course of the 10 investigation. 11 I don't know what supporting documents Mr. Meeks 12 reviewed. It may be that they are the documents that are in rx(-) 13 Mr. Feinberg's final report. 14 But, unless Mr. Feinberg has available the file 15 as it exists, then Mr. Feinberg cannot confirm or elaborate 16 on that issue for us. 17 And I might add that if it is a file that has 18 already been produced and Mr. Feinberg says that there is 19 nothing more, there never was anything more, I'm unaware of 20 anything more, then that's the end of it. 21 But it is our interest in having whatever there 22 is there for Mr. Feinberg to look at to refresh his 23 recollection, and to explain what else he may have had that 24 prompts the document request. (~) (_) 25 JUDGE SMITH: Well, can't that be done without /\\CE. FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coserage 800-336-6M6
8840 01 01 37 ,3 (_ j/bc 1 violating the Department's privilege? 2 Can't they go to the file and look to see if the 3 documents you allude to are there? If they are there, 4 provide them to Mr. Feinberg or to you? And can't this be 5 handled in a more direct fashion? 6 Have you talked to Mr. Newman at all directly? 7 MR. HICKEY: Yes, I have, on several occasions. 8 Indeed, at one point, I was offered the opportunity to look 9 at the file that Mr. Newman ha3. I was told that the price 10 for that was withdrawing my motion for subpoenas to Mr. 11 Feinberg and to have the file. And I felt I could not do 12 that. rx (_) 13 And after the letter came in, it seemed to me to 14 indicate that I had been given full access to everything, I 15 called back to see if the offer was still availabe, even 16 though I was unwilling to withdraw the subpoena request, and 17 was told that it was not. 18 So the privilege that the Labor Department is 19 seeking to protect is a privilege for documents that they 20 say (a) are completely available to us anyhow; and (b) are 21 of no significance to the case. And (c) that they were 22 willing to let me look at.a month ago if I would have 23 withdrawn the motion for the subpoena. 24 If that is all there is, then why not have the ( 25 file there with Mr. Feinberg so that he can look at it? ACE FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coserage MO 33M646
8840 01 01 38 g /bc q,2 1 JUDGE SMITH: I don't think Mr. Newman will agree 2 with your characterization of what he described the file to 3 be. He does not describe the file to be with interagency 4 memoranda and that kind of thing as being everything that 5 you already received or have been of fered or made available. 6 Let's go back to your actual request for 7 subpoena. There may be aspects of that that would have 8 given incentive to Mr. Newman to bargain. 9 I see objectionable aspects to your subpoena. 10 I'm looking at page 46 of your April 6th document, GPU's 11 memorandum concerning discovery motions, pending discovery 12 motions. (~h. (._) 13 You say that you would like to depose Mr. 14 Feinberg on questions similar to those proposed to Mr. 15 Meeks. You want to inquire an awful lot of Mr. Meeks and 16 you will not get all of that. 17 And then you say that you want additional details 18 of interviews with Parks. And that, to me, seems 19 reasonable. It seems to me you should have an opportunity 20 to explore that. And then -- and then you want to elicit 21 corroborating information. 22 It is not apparent to me why you have a right to 23 do that, or what you are seeking there. 24 And then you want indications affecting (O _) 25 credibility in the demeanor of Parks or other witnesses. ACE-FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Cmerage 800-33M616
? 8840 01 Ol'- 39 ,J/bc-1 You're going into an area which is sticky and 2 troublesome and. I can fully. appreciate why the Department 3 does'not want to get into the resources and all that. 4 And then, finally, you want any information, 5 contradictions or calling into question Parks' claims.
- 6 That's exactly why we should be deposing him.
7 But isn't there some possibility that you could 8 be more restrained and more reasonable and work this out 9 with Mr. Newman? 10 MR. HICKEY: I would be glad to try. The 11 indications I have is that Mr. Feinberg will not be made 12 available. If.there is some particular question or the way () 13 that this is phrased, your Honor -- which I agree is. 14 somewhat general -- I would be happy to make it more 15 specific. 16-But the point is that I want.to ask~Mr. Feinberg 17 about his interviews of Mr. Parks and any other witnesses 18 that he talked to. When I talk about the witness' demeanor, r 19 which I gather is a matter which your Honor find troubling, 20 because you mentioned it the other day as well, all I am 21 saying is, as Mr. Johnson has asked of many of our witnesses 22 in his depositions, when Mr. Feinberg spoke to Mr. Parks and i 23 asked about this document, this perception, then how did Mr. 24 Parks appear to you? Did you have the information readily k) 25 at hand? Was he hesitant -- ACE FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coserage 8%336-6M6
8840 01 01 40 (~ \\._,)J/bc 1 JUDGE SMITH: All of which would be absolutely 2 inadmissible in evidence in this case. 3 MR. HICKEY: I don' t expect -- 4 JUDGE SMITH: I don't want to make too strong a 5 rule. I can see circumstances where it might be, but not in 6 the context in which you are asking. 7 MR. HICKEY: If I can respond just briefly to 8 that and with the benefit of some history from my 9 colleagues, I do recall instances where your Honor has been 10 involved specifically and where the context and demeanor of 11 interviews of witnesses -- and I'm thinking about the TMI 12 restart proceeding and allegations of cheating -- and 13 demeanor of witnesses at interviews by NRC investigators was 14 a factor that was in fact considered by the Master hearing 15 the case; and was reviewed by you and your colleagues. 16 JUDGE SMITH: And summarily rejected, as I 17 recall, as a basis for our decision. 18 MR. HICKEY: For finding of fact, yes, but you 19 did recognize it was an appropriate basis for an 20 investigative lead. 21 JUDGE SMITH: There you go. If you might want to 22 inquire into an investigation or an investigator, did you 23 think he was evasive. 24 Not that that investigator is going to -- or O(_) 25 you're going to come and give evidence to me that the ACE FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coverage 800-336-6646
8840' 01:01' 41- /bc 30884.0303-2 BWH/bc g' investigator believes that he was evasive, but as.a. reason 4 .to inquire further, as a lead to further factual information 5 which you can produce in a hearing. That I recognize. 6 And that would be-a very limited thing..And that 7-would only be in the context of a logical inquiry into-1 8 facts. I 9 MR. HICKEY: And the followup question is: 10 And if you thought that, what did you, Mr. { 11 Feinberg, do about that? Did you talk to somebody else? 12 Did you try to check out his information by inquiring of the 13 witnesses, or reviewing documents, and so on? l 14 -JUDGE SMITH: But I would not -- that'is the 15 difficulty we have when an authorized' deposition is under 16 his control. 17 MR. HICKEY: We have had almost 20 depositions 18 taken by the staff of GPU and Bechtel employees. They've 19 been taken without any preliminary control from the court. 20 They have gone, in my view, in perfectly 21 appropriate fashion. There have been almost no, if any, 22 instances where counsel have felt obligated to direct 23 witnesses not to answer questions. They have been conducted 24 in a professional manner, I think, on both sides. 25 I think Mr. Johnson would agree with that. And ACE. FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coserage 800-336-6M6
8840 01 01 42 /^ (_)2/bc 1 the process has gone on as it normally goes on in any 2 discovery. 3 JUDGE SMITH: Why am I here today about about 4 half a dozen discovery disputes and the language is getting 5 heated? 6 MR. HICKEY: I think I can respond to that. The 7 discovery dispute about the depositions of Feinberg and 8 Meeks have been couched exclusively on whether I can do them 9 or not. 10 I do not believe that the staff took the position 11 that, in any of its papers, although there is a lot of paper 12 there, that it would be all right for me to take the A(_) 13 deposition if I would simply be limited in this fashion, or 14 if we would agree that that area was off limits or if I 15 would represent that I would not address it. 16 JUDGE SMITH: I think that's where we are now. 17 MR. HICKEY: If we are, it is because of concerns 18 that you have about the nature of the deposition. 19 JUDGE SMITH: Is he right about that, Mr. Newman, 20 or Mr. Johnson? 21 Is there a possibility that, after having this 22 discussion and having our ruling about the privilege out of 23 the way, that you could work out ground rules for a 24 reasonable deposition of Mr. Feinberg ? f( 25 MR. NEWMAN: I want to address that. I have to ACE FEDERAL REPORTERS, INC. 202 4 47 3700 Nationwide Coverage MO-336-(M6
l 8840 01 01 43 ./ " (,\\ '3/bc-1 go back to regulations. The regulations are not a blanket 2 prohibition against us in discovery, but there are-3 procedures within the regulations that must be followed. 4 And one of the procedures is that the Office of 5 the Solicitor -- I'm reading from 29 CFR Section 2.21, which 6 provides that: 7 "The appropriate office of the Solicitor shall be 8 furnished by the party causing the subpoena to be-issued 9 with a written summary of the information sought and its 10 relevance to the proceeding in connection with which it was 11 served." 12 Now, the regulations are basically prohibitive. ( 13 They prohibit our employees f rom providing information. And 14 they cannot provide information unless the Deputy solicitor 15 authorizes the employees to provide that information. 16 Therefore, the Deputy Solicitor must be apprised 17 as to the particular information which is being sought. And 18 then the Deputy Solicitor makes an informed decision as to 19 whether or not to allow the employee to provide that 20 information. 21 GPUN has been informed on the regulations. They 22 have been referred to the regulations. And, yet, they have 23 not complied with the regulations. They have not presented 24 us with this information. () 25 JUDGE SMITH: But you presented the regulation as ACE FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 800-33MM6
8840 01 01 44 A(_,J/bc 1 an absolute bar to discovery. 2 MR. NEWMAN: No, we didn't. 3 JUDGE SMITH: That's the way I read it. And I 4 appreciate your setting me straight on it, but I read that 5 letter as saying: Go away, you're not going to discover. 6 MR. NEWMAN: That is with regard to the 7 subpoenas. The subpoenas against the -- the subpoenas for 8 employee testimony, they simply cannot be enforced. It is 9 sort of barking up the wrong tree. 10 They should be seeking this information from the 11 Deputy Solicitor. They have to obtain authorization and 12 approval from the Deputy Solicitor before any information b ss 13 can be obtained from the Department's employees. That is 14 the way the regulation is set up. 15 JUDGE SMITH: Then the bottom line, as I 16 understand it today is, you are not prepared to enter into 17 any discussion as to the reasonableness, the restraints to 18 be placed on any deposition of Mr. Feinberg, because, until 19 they go through that process, you just are not going to 20 allow Mr. Feinberg to be -- to testify.- 21 MR. NEWMAN: That is correct, your Honor, because 22 the Deputy Solicitor has not been consulted on this matter. 23 And he is the only person within the Department of Labor 24 with the authority to authorize those employees to provide ) 25 information. ACE Fuonnat REPonTuns, INC. 202 347-370) Nationwide Cmcrage N013364M6
l 8840 01.01 45 O (,2/bc 1 JUDGE SMITH: And you're not authorized to speak 2 for him today? 3 MR. NEWMAN: No. 4 JUDGE SMITH: Then I do not see any reason for 5 you to stick around, really. Let's make it clear. You are 6 not authorized nor inclined to discuss limitations or 7 reasonableness of discovery demands authorized by me and 8 this agency? 9 MR. NEWMAN: No, your Honor. 10 MR. HICKEY: May I interject something? Although 11 I am surprised that maybe Mr. Newman is unaware of this, but 12 I have a letter addressed to Kenneth Stein, Deputy Regional 13 Solicitor of Labor, U.S. Department of Labor, Philadelphia, 14 from Ronald G. Whiting, Deputy Solicitor of Labor for 15 Regional Operations, Of fice of the Solicitor, Washington, 16 D. C., March 19, 1987, with regard to a request in taking 17 Mr. Feinberg's deposition in connection with the civil case 18 pending in Parks -- brought by Mr. Parks in California 19 against Bechtel Power Company. 20 It reflects that a written request had been 21 submitted in that case. And according to Mr. Whiting, the 22 Deputy Solicitor of Labor, it was being rejected because the 23 interviews of Mr. Parks are protected by the informant's 24 privilege, a ground which has not been raised here. O (_/ 25 So, if Mr. Newman's suggestion is that if we ace FEDERAL ReponTuns, INC. 202-347 3700 Nationwie: Coserage m)-3364M6
8840 01 01 46 's_,l/ bc 1 presented to the Department of Labor a statement as to why 2 we wanted to depose Mr. Feinberg, they would be happy to 3 consider it. That has already been done. 4 I would have been glad to inform Mr. Newman of 5 this letter had he raised with me the issue that we would 6 please submit a statement, that he would be happy to 7 consider it. But, frankly, it has not been raised. And I 8 assume that he was aware that the Solicitor had rejected a 9 request for a deposition of Mr. Feinberg that would go into 10 the same things that we're trying to go into here on the 11 basis of the informer's privilege. 12 So I don't know whether it is just another step [') A/ 13 that they would like us to go through, or whether there was 14 some suggestion that there is room for negotiation. 15 The last answer I heard from Mr. Newman was that 16 there was no room for negotiation. 17 MR. NEWMAN: He is correct. I was not aware of 18 that letter. I was not aware that the Deputy Solicitor had 19 been consulted with regard to -- 20 JUDGE SMITH: My inclination now is to issue a 21 subpoena and let you move to quash, or whatever you want to 22 do. You have not come here with anything except asserting 23 your regulations and to report that you have already 24 provided a large amount of information. O(_) 25 I don't think it is within my jurisdiction, even ACE FEDERAL REPORTERS, INC. 202 347 3m) Nationwide Cmcrage 800-336 6M6 ~
8840 01 01 47 n'q j/bc 1 within my prerogative, to withhold a subpoena. I think your 2 letter was sort of an anticipatory motion to quash. 3 The reasons you asserted in the letter have not 4 been availing. I think I will just issue the subpoena and 5 let you people fight it out. You can worry about it. 6 We could also entertain a subpoena to the 7 custodian of the record and then you can fight it out. This 8 is not my responsibility. 9 MR. HICKEY: Judge, can I add one other comment? 10 JUDGE SMITH: lloweve r, I am still not happy with 11 the unlimited reach of your subpoena. But it is not before 12 me any more. 13 You have a right to get a subpoena so that all of 14 this is relevant, this stuff is relevant. I do not have a 15 right to inquire into whether it is excessive, does it go 16 too far. I raise it as a possible area of agreement for 17 negotiation. 18 There is no negotiation, so you give me any 19 subpoena you want to. And as far as it goes, it is up to 20 you because you have to defend it. So long as it is 21 relevant to the proceeding. 22 MR. HICKEY: We submitted a proposed subpoena 23 with our motion. 24 JUDGE SMITH: I will have to find it. k_)) 25 MR. IIICKEY: It is attached to our April 6th. ACE-FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Cmcrage 8m3364M6
8840 01 01 48 /~N (,J/bc 1 It is attached to our motion of issuance of subpoenas. I 2 can make a copy available. 3 JUDGE SMITH: It may be here. 4 MR. HICKEY: I was going to add one other 5 comment. You talked earlier about the memorandum of 6 understanding by which two agencies of the same soverign, 7 the NRC and the Department of Labor, have agreed to 8 cooperate with regard to the implementation and 9 investigation and enforcement of cases brought under the 10 Energy Reorganization Act. 11 I believe that there are, although I have never 12 seen them, agreements or subordinate agreements that ( 13 implement and effectuate the memorandum of understanding. 14 And if the NRC, which is a party before your 15 Honor in this proceeding, has any ability to assist in 16 requesting the availability of Mr. Feinberg, then it seems 17 to me that you can direct the party before you, the NRC, to 18 exercise its efforts toward that end, because you have a 19 right to have the hearing before you as full as you feel is 20 necessary. And you have said that this discovery, you 21 think, is relevant. 22 And while the Department of Labor is not formally 23' a party to this proceeding and you suggested we will have to 24 see how we can enforce the subpoena, I think we are entitled () 25 to the assistance of the Presiding Officer to the extent ACE. FEDERAL REponTEns, INC, 202 347 37(W) Nationwide Coserage 8(n33MM6
8840 01 01 49 A '(,j/bc 1 that the NRC staff can make Mr. Feinberg available under the 2 terms of their agreement with the Labor Department, whatever 3 they may be. 4 And I raised before the possibility that if Mr. 5 Johnson wished to call Mr. Feinberg as a witness to 6 corroborate or impeach Mr. Parks in this proceeding, I find 7 it incredible to think that he would have no authority under 8 the agreement between the NRC and the Labor Department to do 9 that; just as I find it incredible to assume that if this 10 was a Labor Department proceeding, where Mr. Parks was 11 seeking to be reinstated under the Energy Reorganization 12 Act, and the Labor Department wanted an NRC inspector to (-)x \\_ 13 come and testify about the safety significance on how Mr. 14 Parks was involved in protected activity, that the NRC would 15 be free to say to them: 16 We're not going to do it. You can just get your 17 subpoena. 18 JUDGE SMITil: I agree with everything you have 19 said. I believe that the very extent that Mr. Johnson is 20 entitled to have that memorandum of understanding help him 21 in this case, to no less extent are you in this proceeding. 22 Where I hesitato is what authority do I have to 23 administrative 1y require members of the NRC staff to enforce 24 a memorandum of understanding? O (_) 25 Maybe I do. I don't know. If I were to give you Acn-FitonnAi. RitronTuns, INC. l 20 1 347 3700 NationwMe Cmerage m3MfM4
8840 01 01 50 -(y (,j/bc 1 such an order, Mr. Johnson, would you comply with it? Would 2 you question my authority to give you such an order to 3 enforce their discovery rights under the memorandum of 4 understanding? 5 MR. JOllNSON: I believe we would question that 6 authority, your lionor. 7 JUDGE SMITH: I can't sit here right now. I 8 think I certainly would want to consider your argument. And 9 I might also say, if I tell them to do it and I think that 10 it is fair in this case, and they don't, and then some 11 evidentiary inferences might be appropriate. 12 It is a complicated problem. O) x _. 13 MR. JOllNSON: I would like to respond. 14 MR. IIICKEY: Can I add one last thing, your 15 lionor, to complete my comments? 16 JUDGE SMITII: Certainly. 17 MR. HICKEY: There was from the outset, you may 18 recall, of this enforcement proceeding an effort by the 19 licensee to obtain a full copy of the Labor Department 20 investigative report; since we were informed that that was 21 the basis on which this enforcement action was being 22 brought, we thought that we ought to be entitled to look at 23 it. 24 That started in 1985 and when we made our first () 25 request, I got the full copy in January of 1987. It only Ace-FEDERAL Rui>onTens, INC. 2t)2 347-370) Nationwide Coserage N a)-3.4 M46 ~
8840 01 01 51 OU 2/bc 1 took a year and a half. 2 But Mr. Johnson and the NRC staff had it 3 substantially before that. And, indeed, I believe they had 4 it when it was issued in about May -- not Mr. Johnson 5 personally, but the NRC staff had it in May of 1983, when it 6 was issued. 7 So they do have the power where they are 8 Interested in using it to obtain documents which the 9 Department of Labor tells us are privileged for use in their 10 enforcement proceedings. 4 11 JUDGE SMITII: I think they do have the power. If 12 I can direct it, that is my problem. Is this power a part /] U 13 of their -- I do not have the authority to direct the staff 14 in its day in and day out duties, in its administrative 15 duties, that is quite clear. 16 I do have the authority to direct the staff to 17 produce evidence here. Now, the interface is how far do I 18 have the authority to direct the staff to go out and gather 19 evidence for your case, simply because they have the 20 capability of doing it, as opposed to evidence already in 21 their possession? 22 I don't know. 23 MR. HICKEY: I don't know, but I don't know if we 24 have to get to that point. But, it seems to me, the first 25 question is are we right in our assumptions that I think you ACl! Fr.iininai. RiironTrias, INC. 202 347 4700 Nationwide Cmcrage fun U6 (M6
8840 01 01 52 'O t J/bc 1 share, that if the staff said I want Mr. Feinberg for a 2 witness on behalf of the staff in this proceeding, I want to 3 take his deposition to preserve testimony, or for whatever 4 reason, that that request would be honored. 5 Then you can decide what kind of presumption or 6 ovidentiary sanction is appropriato. If the staff can do 7 that and choosos not to, I agree you cannot make them do it. 8 But, if they have the power, which we are 9 assuming, that has not yet been addressed by Mr. Johnson, if 10 they could, under the terms of their agreement with the 11 Department of Labor, obtain Mr. Feinberg's participation in 12 the deposition, then I think you ought to know that. And (O/ 13 then ask them whether they would do it or not. 14. If there position is: Absoluto1y not -- then you 15 can deal with that. 16 JUDGE SMITil Mr. Johnson, I will not ask you -- 17 this is now, a now point. I will not ask you unless you are 18 prepared to respond. But my inclination right now is that, 19 for purposes of this proceeding, that the memorandum of 20 understanding onures to the bonofit of all parties, and 21 onures to my benefit as the tryor of the fact. 22 And I do not have the indopondent authority to 23 enforce a contract -- I think I will look at it and take it 24 into account when I decido to issue the subpoenaos. I think () 25 that the contract is rolovant. I think it overridos your Ace FEDERAL RnvonTens, INC. 202-347 3700 Nationwide Cmerage H(03%fM6
8840 01 01 53 73 j (,3/bc 1 regulation. i 2 You contracted away what right you had in that 3 regulation. You have information that is relevant to this i 4 case, and you're going to have to come up with it. One way 5 or the other. You could make us go through hoops, or 6 whatever, but one way or the other, through the memorandum i 7 of understanding, through court, or whatever, you are going 8 to come up with it or suffer the inferences and the 9 sanctions that they may ask for. 10 You just cannot hang on that, that's all. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ace Fnonnat. Rei>onTuns, INC. 202 347-3700 Nationwide Cmcrage MU-316W46
8840 04 04 54 f,J/bc 1 MR. JOHNSON: We are not hiding -- 2 JUDGE SMITH: I switched my remarks to Mr. 3 New: nan, but I did not make that clear. Sooner or later, the 4 Department has to come up with information necessary to'the 5 case or you may cause your colleague, Mr. Johnson, to suf fer 6 inferences of and sanctions in the case contrary to your 7 memorandum of understanding. 8 MR. NEWMAN: We have provided all of the j 9 information that we possibly can. i l 10 JUDGE SMITH: That is for me to decide, Mr. 11 Newman. That is a representation you can make,.but you have 12 not provided the testimony of Mr. Feinberg or the probing of ( 13 this member. You have not provided that and you cannot even 14 make an argument that you have. 15 And I believe that it is -- I will not say 16 necessary to decision as that term is frequently used, but I 17 think it is a very appropriate area of inquiry in this type 18 of case in the context of this case. 19 Now, Mr. Johnson. 20 MR. JOHNSON: I would want to point out that we 21 have not boon hiding behind any privileges with respect to 22 documents in our possession or control, that we attempted 23 very assiduously to obtain the release of the documents that 24 we did have. And were successful in getting those released () 25 for purposes of discovery. ACE. FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 80lk33 M M 4
8840 04 04 55 7). - J/bc 1 It's our opinion that we are not relying upon the 2 findings or views of Mr. Feinberg. And, therefore, we 3 should not be sanctioned for the fact that he is not being 4 made available. 5 JUDGE SMITH: That is not the test. The test is 6 in the pursuit of their legitimate defense. They are 7 frustrated in getting evidence that they are normally 8 entitled to. 9 They are entitled perhaps -- I don't know -- to 10 various remedies, whether it fits conveniently into your 11 case or not. They are entitled to various remedies, 12 including negative inferences, whatever reliance you ever 13 (/ 13 placed on a report. Or, I can think of a large menu of 14 things. 15 The fact that you do not need it for your case is 16 irrelevant to the sanctions that are justified when a person 17 is frustrated in legitimate discovery. 18 MR. JOHNSON: I think you are correct. But the 19 question is whether Mr. Feinberg possesses relevant facts, 20 factual information, or not. 21 And -- 22 JUDGE SMITH: And we will not know until he is 23 deposed. Do you want to confer? 24 MR. BERRY: Yes, your Honor. I'd \\_/ 25 (Consel conferred.) ACE. FEDERAL REvoRTERs, INC. 202-347-3700 Nationwide Coserage 800-336 6646
m 8840 04 04-56 r~s (,2/bc 1 MR. JOHNSON: If you don't mind, I'm going to let 2 Mr. Berry address one additional point on the regulations. 3 MR. BERRY: Thank you, Judge. 4 It comes as no surprise to any of the parties 5 here that the staff, as we understand the Judge's position 6 and the position of GPUN, but staff's position has been all 7 along that we do not regard Mr. Feinberg as relevant. 8 We do not concede that, as the Judge appears to 9 be leaning, that GPUN is entitled to depose Mr. Feinberg. 10 We are opposed to that. I would point out, Mr. 11 Chairman, that, under the regulations as is true with 12 respect to Mr. Meeks, that to depose a member of the staff, 13 the Examiner would have to shoulder a heavy arden; although 14-Mr. Feinberg is not an employee of the staff as a member of 15 the Department of Labor to the extent that there seems to be 16 a suggestion that the Department of Labor in this connection 17 is an extension of the NRC, it would follow that Mr. 18 Farmburger as well would be vicarously an employee of the 19 NRC. 20 The same test would apply to Mr. Feinberg. It is 21 not enough for GPU to come in and say that we would like to 22 ask Mr. Feinberg a question as to what did somebody say, 23 what did you do there. 24 Because the test is that the information has to (O ./ 25 be -- that the witness has to have knowledge of the material ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage Mn336-6646
8840 04 04 57 7~\\u,J/bc 1 facts, and that information cannot be derived from any other 2 source. 3 In this case, it is clear that that is not_the -4 case. Mr. Feinberg issued a report, conducted an 5 investigation, and an investigation, I might add, that 6 counsel for GPUN participated in, at least with respect to 7 interviews of a number of witnesses. 8 And that information has been disclosed. So,.in 9 short, your Honor, the staff's position with respect to this 10 point here is that GPUN has not demonstrated that that 11 position of Mr. Feinberg is necessary to obtain information 12 that otherwise could not obtain or does not possess. 13 And I believe that, in the absence of that-14 showing, that the Presiding Officer must deny the request 15 for the depositions. 16 JUDGE SMITH: Mr. Hickey. 17 MR.. HICKEY: Just briefly, your Honor. 18 In addition to the factual areas of Mr. 19 Feinberg's knowledge, which is what we primarily think his i 20 deposition is warranted by, there is one other thing I would 4 21 mention. , 22 Mr. Feinberg took statements from Mr. Parks, 23 among others, and he wrote them down. And we have that 24 statement. In the event that Mr. Parks deviates from the ( 25 statement or the information contained in the statements, l ace FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coserage 800-336-M46 ..... ~.. _.., _ _.. _ _ - _ _, _ _ _ _ _ -.. ~ -
8840 04-O'4-58 -( ~, \\,,jJ/bc - 1 Mr. Feinberg is-a likely witness, called either by the staff W 2 or by the licensee to impeach or corroborate the accuracy of L3-the record of Mr. Parks' interview conducted by Mr. 4 Feinberg. 5 So, on both of those grounds, it seems to be that 6 Mr. Feinberg does have, as.your Honor indicates, relevant 7 information that makes him an appropriate deposition 8 witness. 9 MR. BERRY: And, obviously, Mr. Presiding 10 Officer, to grant discovery on the. rationale put forward by 1 11 Mr. Hickey would make anything fair game. It is always 12 possible that someone may contradict if they're called.to ' /~5 (s/ - .13 the witness stand. They may contradict a statement they 14 made earlier. 15 And under that rationale, we can call on anybody e-16 who has knowledge of earlier statements. There is no l 17 showing, there is no indication that Mr. Parks has 18 contradicted any of the statements he made to Mr. Feinbe rg. l-19' At this point, the danger or the fear expressed l l 20 by Mr. Hickey, there is no basis for it. And until there is 21 a basis for it, the request to call Mr. Feinberg is 22-unnecessary. l l 23 JUDGE SMITH: In the middle of trial, Mr. Berry? 24-MR. BERRY: Excuse me? 25 JUDGE SMITH: Let's take the scenario that Mr. ace-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-3364 686
8840 04 04 59 L T~'; %,J/bc 1 Parks makes statements that are inconsistent with the ( 2 statements he gave to Mr. Feinberg. 3 Do you not foreclose the possibility that'you 4 would, in any event, not call Mr. Feinberg? That you would 5 just allow that to go? 6 MR. BERRY: As Mr. Johnson has indicated, the 7 staff is on record and has taken the position that we do not 8 intend to call Mr. Feinberg. I will let Mr. Johnson speak-9 to that more specifically. 10 But, at this point, we have no present plans with-11 regard to Mr. Feinberg's report -- 12 JUDGE SMITH: That's not my point. My point is s/ 13 there are two points made by Mr. Hickey. One is that they 14 have a right in discovery to find information leading to 15 evidence that would be helpful to them. 16 And the other point is, as a prudent workman 17 getting ready for a hearing, they anticipate the possibility 18 that Mr. Feinberg might be called to rebut the testimony of 19 Mr. Parks. 20 And Mr. Berry says, well, we have no present 21 plans. And, obviously, you don't because it has not come up 22 yet. 23 Are you prepared to forego right now, forever, 24 the right to call Mr. Feinberg into this hearing? () 25 MR. JOHNSON: I would only go so far to say, your ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
i I 8840 04 04 60 t J/bc. 1 Honor, that we have no present' intention and do not intend 2 .to call Mr. Feinberg. And we can see that if we did at any 3 point in the future, that there might be some attendant 4 rights. 5 But, let me just say in addition I do not believe 6 that, in the status of the law, that we have any greater 7 access to information that is barred from from production by 8-DOL regulation than Mr. Hickey does. 9 And it is my understanding that the Department of 10 Labor would resist the use of Mr. Feinberg by.the staff if 11 we were to. request it, just as they are resisting it 12 pursuant to the regulations on the request of Mr. Hickey. 13 I think Mr. Hickey has raised a hypothetical 14 which tends to-show unfairness of the situation, which is ~ 15' just -- it is really specious. 16 We do not intend to call Mr. Feinberg. We are 17 not relying on the DOL report, statements that he wrote 18 down. We are attempting to develop a case ab initio from 19 live witnesses and documents in the possession and mostly 20 created by Mr. Hickey's client. 21 And to say that we are relying or that there is 22 any unfairness on the part of the staff of not making 23 available information that it has or has access to is 24 specious. ( 25 We do not have access to that information either. ACE FEDERAL REPORTERS, INC. l 202-347-3700 Nationwide Coverage 800-336-6M6
8840104-04 61 \\_ 3/bc 1 JUDGE SMITH: Anything further? I am prepared to 2 rule on it. I believe you have made a case for the 3 deposition of Mr. Feinberg. You have made a case for the 4-case file. 5 I am not talking about that you have made a case 6 for privileged information. But, you have made'a good 7 argument that you should have access to the nonprivileged 8 aspects of the case file. And you have made a successful 9 argument that you should be allowed to depose Mr. Feinberg. 10 I have been frustrated in trying to set up any l 11 groundrules for his deposition. I anticipate that you will 12 depose that beyond that which I would allow. 13 But I do not have anything that I can do about 4 14 that. There is no area that I can do except to allow you to-15 issue the subpoena. 16 Now, with respect to the staff's memorandum of 17 understanding, I am prepared to issue an order to the NRC 18 staff to exercise their prerogative in the memorandum of 19 understanding to gather the information you need and to make 20 available Mr. Feinberg's deposition. 21 I have some doubts as to whether staff will 22 comply and I am not certain that my order will survive 23 appeal or whatever. But, nevertheless, as a beginning 24 point, we will start it out that way. ) 25 It is my feeling that it is a lawful order, it is ACE-FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coserage 800-336-6646
M l8840;04~04 62 f-~ M,3J/bc 1 .one that will probably survive appeal. And, in any event, s 2 you'have a right to have.it. And if you can get that -3 . prepared forime, is.there any possibility, Mr. Blake, that 4 during the' recess or something, you can' dictate'that? 5 I do not have time to issue it and I'm going to 6 -be out of the country until teh 20th. 7 ..MR. HICKEY: We'll get it prepared over the noon
- 8 hour, your Honor, and have it out here th'is afternoon.
9 MR. BERRY: Mr. Presiding Of ficer, 'we under-10 stand -- 11 JUDGE SMITH: Are you readdressing this issue? 12-MR. BERRY: Not the question of the deposition of 13 Mr. Feinberg. Our position was that the deposition not be 14 granted, but-the Board has ruled that a deposition will be 15 allowed. 16 We believe that this Board should entertain an 17 appropriate limitation of that deposition. -18 JUDGE SMITH: I tried and I could not get it. I 19 am willing to, if you want to revisit it, I'm willing to. 20 MR. BERRY: Mr. Newman has stated his position, 21 and that is the position of the Department of Labor as'we 22 understand it. '23-As with respect to the staff, it is the staff -2 4 - .that has the case, and it is the staf f -- the Department of 25-
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8840 04 04 63 ,[7/bc 1 the position they have. 2 But, as far as the staff is concerned, we do 3 believe that there are -- there should be limitations placed 4 on any deposition allowed to go forward of Mr. Feinberg. 5 We do not believe that it should be an open-ended 6 deposition at all. 7 JUDGE SMITH: Make your objections at the 8 depositions. And if they try to produce evidence produced 9 at deposition that exceeds -- this is the first you have 10 raised limitations. 11 The staff's position has been you cannot depose 12 Feinberg. You cannot discover any further. And now you are 13 raising it after I have ruled, after I have been frustrated 14 with Mr. Newman, you have heard my discussion as to how I 15 feel about where they are going with their deposition. 16 You can use it as you see fit to object during 17 deposition and then bring it back. But I am required to 18 issue the subpoena. 19 MR. BERRY: That is true. 20 JUDGE SMITH: I do not have discretion on it. So 21 long as they show it is relevant, I am required to issue a 22 subpoena, and also offered to preside over the deposition. 23 MR. BERRY: The staff may very well request -- 24 take you up on that offer, Mr. Chairman. ('J T 's-25 JUDGE SMITH: You'd better do it quick because ACE. FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 800-3346M6
8840 04 104 64 ) u_J/bc 1 I'm going to sign these orders this afternoon. You're late, 2 yous see. 3 You came into this prehearing conference with an 4 absolute position: nothing, will not-give nothing. 5 You lost on that and now you're not prepared for 6 a fallback position. 7 MR. BERRY: Very well, Mr. Presiding Officer. 8 The staff -- 9 JUDGE SMITH: I don't want to foreclose that the 10 deposition probably will not be accomplished before I return 11 the middle of next week. I would hope that, in that period 12 of time, based upon this discussion, that reasonable people, NJ 13 that I know you've been doing this, can get together and 14 accommodate the needs of this litigation. 15 30884.0505 16 BWH/bc 17 MR. BERRY: We will endeavor, your Honor. 18 JUDGE SMITH: I will issue the subpoena as 19 requested and then, when I come back, if you worked out 1 20 something less than that, which I hope you will have and I 21 encourage it, then we will look at it. Okay? 22 Is that satisfactory? 23 I think you should be able to get together on 24 this. There's no reason why you can't get together on this. ,r (_)3 25 This man conducted a parallel investigation, parallel to the Ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-33466t6
43 , 8I340 04 04 65 5k3/bc-1 issues in this proceeding. And'they're going.to have a 1 2 _right to talk to him about it. That is the bottom line. 3 And sooner or.later, it is going to happen. 4 Shall we go on to the next one? 5 Mr. Newman, I certainly appreciate your-coming 6 and you are very welcome to come back if you can be helpful, 7 or if it would be helpful. ~8 MR. NEWMAN: Thank you. 9 JUDGE SMITH: And now I am prepared to take up -- 10 MR. HICKEY: The first motion to compel. 11 JUDGE SMITH: Fine. 121 1M R. HICKEY: If I could very briefly, I have . (~\\ s_/ 13 tried to collect _the documents that are still being sought, 14 or my comments about them, basically, are in three groups, 15 because I think the documents fall logically into three. 16 groups. So if I might try to address them that way first. 17 This is the material, by the way -- 18 JUDGE SMITH: Are you aware now that I have read 19 those documents? 20 MR. HICKEY: Yes, so you have an advantage on me. -21 But there are some of the documents that were produced in 22 part, so I am familiar with -- 23 JUDGE SMITH: I did not know that. 24 MR. HICKEY: Yes, I am familiar with a portion of 25 some of the documents. And that is what gives me what ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336 6646
18840 04 04 66 ?/bc 1 limited comments I can make. 2 JUDGE SMITH: First, let me ask, am I supposed to 3 have the 56 affidavit of Mr. Parks? I don't. Or, if I have 4 it, it is buried somewhere close to the bottom. It seems to 5 be an important document. 6 MR. HICKEY: It is an important document. I 7 thought I recalled that, at the outset of this proceeding, 8 the staff provided your Honor with a number of documents, 9 including, I thought -- 10 JUDGE SMITH: Providing to each other in 11 discovery is not the same as providing to me. 12 MR. HICKEY: Mr. Johnson provided you documents p) (.. 13 on the case when the matter was first assigned to you. It 14 had the notice of violations. 15 JUDGE SMITH: Was that in there? 16 MR. HICKEY: I'm not sure. 17 MR. JOHNSON: I don't believe it-was, your Honor. 18 JUDGE SMITH: I would have expected not. It is 19 not the type of thing that I would have expected to receive 20 at the beginning of any proceeding. 21 MR. HICKEY: We'd be happy to make it available. 22 It is a document that we have referred to numerous times in 23 our papers. 24 JUDGE SMITH: Then, before you proceed, did you (~h (_/ 25 receive the communication from GAP to the Commission. I ACE FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 800-336-6M6
8840 04 04-67 (_J/bc 1 think there was at least one, maybe two, which is alluded to 2 in some of these -- you have that? 3 MR. HICKEY: Yes. 4 JUDGE SMITH: So, when I discuss the issues 5 raised in there, I will not be revealing any privileged 6 information? 7' MR. JOHNSON: We have turned over all documents 8 that we had pertaining to Mr. Parks' communications to the 9 NRC in GAP to the NRC on this matter, as far as I can. T 10 recollect. 11 MR. HICKEY: As a matter of fact, Judge, one of 12 the comments I wanted to make about the documents', because I (~)/ 13 thought it would be relevant to your consideration, is to s-14 put=them in context of what has already been disclosed and 15 how they relate to that. 16 I thought that was.really the most I can say, not 17' having seen the documents, and my comments are fairly brief. 18 The material is addressed at page 28 -- beginning on page 27 19 of our April 6th memorandum on pending discovery motions, 20 and on page 28 we identify four documents that all pretty 21 much relate to the same subject area. 22 And I was going to address pretty much as a 23 group. 24 We do have, as you inquired, the document that ~w (% [ 25 prompted this all, namely, a letter from GAP. ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6646
8840 04 04' 68 's f/bc 1 JUDGE SMITH: One or two? 2 MR. HICKEY: A-letter is what I'm aware of on 3 this particular matter -- from GAP on behalf of Mr. Parks-4 and itself criticizing the OIA investigation report that had 5 been issued about Mr. Parks' allegations. 6 That prompted the issuance of a document, SECY-7 65 in February of 1984. A response from Mr. Fitzgerald-8 to the Commissioners, addressing GAP's request for a renewed 9 investigation. 10 And we have that document, I would guess, from 11 the blank spaces, approximately 80 percent of it, or maybe 12 somewhat less. I cannot tell for sure. But there are, for fn (_ 13 example, in the first pages, where Mr. Fitzgerald discusses 14 matters, we have most of pages one, two, three and four, a 15 little of page five and none of page six. 16 JUDGE SMITH: It would be helpful if I had that. 17 I've been trying to analyze the whole bit as to what is 18 privileged and not privileged, but let's go back over this. 19 MR. HICKEY: We indicated in our papers -- 20 JUDGE SMITH: Does that indicate what was 21 redacted? 22 MR. JOHNSON: Can I see the document? I meant a 23 disadvantage. 24 MR. BERRY: I believe that to be true, Mr. O k_)- 25 Presiding Officer. ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6M6
w 8840 04.04. 69 \\ p. --\\,J/bc 1 JUDGE SMITH: Let's compare notes here. Page i 2 of SECY-84-65, I have a bracket, opening bracket at the 3 bottom. 4 MR. JOHNSON: May I look at the document, your 5 Honor? 6 (Counsel approaching bench.) 7 (Discussion off the record.) 8 JUDGE SMITH: You do not have an indication of 9-deleted material. 10 MR. HICKEY: There are some places where I can 11 assume that there are holes, that have been deleted. 12 JUDGE SMITH: I don't think this will be very. 13 difficult. 14 MR. HICKEY: We did indicate in our papers, Judge 15 Smith, that we had previously received expurgated copies and 16 I probably should have, but did not attach the expurgated 17 versions that we had. But, in substance, these four 18 documents that are in contention,- discussed on page 28, they-i 19 relate to the OIA followup investigation in response to Mr. F 20 Parks' charges. 21 And we did indicate in the exhibits that we filed 22 that some of these documents that have been produced have 23 what we consider to be pertinent, factual information. l 24 For example, Mr. Parks said that the ( 25 investigation was flawed because his interview was not Ace-FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coserage 800-336-6M6
8840 04 04 70 f" (m 3J/bc' 1 properly reported by the OIA investigator. And the 2 information about what he claimed was not correctly 3 transcribed. 4 The documents that were produced reflect that OIA 5-went back and interviewed Mr. Parks with a court reporter 6 and asked him what was wrong with his earlier interview-and .7 what did he really want to say, and what corrections did he 8 want to make, and so on. 9 And, in substance, Mr. Parks had nothing to add 10 that was not already known, at least interview of OIA. And 'll when they asked him for additional information, he said he 12 would submit it and then he failed to do so. 13 That leads to an inference that I think is 14 relevant'to Mr. Parks' credibility, and that is part of the 15 information that has already been-disclosed. 16 I do not know what is in the material that has 17 .not been disclosed, but my suspicion is that it may reflect 18 on the OIA evaluation of Mr. Parks' charges, really,'is what 19 they are, charges of OIA inadequacy and charges that his 20: factual allegations were not properly dealt with. 21 So we think that they are relevant to Mr. Parks' 22 credibility. And as I say, the whole subject matter has 23 been put forth already in some detail. 24 Why these particular paragraphs need to be (! 25 deleted, I can only guess. But, in this March 19, 1984 ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
8840 04 04 71 (_J/bc 1 memorandum, for example, for Commissioner Bernthal from 2 George Messenger, there is the title, quote, " Adequacy of 3 OIA's investigation of Parks' Allegations," followed by 4 three or four blank pages where I have nothing. 5 I have some. basis to assume that what is 6 discussed would include evalation of whether Mr. Parks' 7 charges were factual or not. Therefore, I would like to 8 have access to those to see what they say because it may 9 lead me either to ask questions of Mr. Parks or to attempt 10 to locate an associate who can corroborate that Mr. Parks 11 was not accurate when he made statements under oath to the 12 Office of Inspector and Auditor about matters relating to-f'T (_/ 13 TMI, which strikes me as pretty relevant to the issues that 14 your Honor has to decide in this hearing. 15 And if I can touch -- I don't know if your Honor 16 wants to pause and address those four, or should we go 17 through all of the documents, sir? 18 JUDGE SMITH: I would like to back up a little 19 bit before we get into each of the documents. First, I 20 think, preliminarily, you are entitled to a ruling. 21 That is, I have looked at the documents and they 22 certainly fall within the deliberative process privilege. 23 The question remains are there facts in there that are so 24 intertwined, or are there facts that can be separated, that 25 would not be covered by the privilege? And are there facts ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6M6 v --i..,. <, <-.,i3 -4
ew- - -
8840 04 04 72 k,j/bc 1 that are so intertwined with privilege that they cannot be m 2 separated? 3 And, finally, are these facts necessary to a 4 decision and the need for the decision, as you have pointed 5 out in your -- both of you have pointed out in your very 6 good briefs would depend somewhat upon the destructive 7 effect. I have to make a balance. How much are they needed 8 and what would be the chilling effect on the purposes that 9 Executive Privilege is supposed to protect? 10 Now, I asked the parties to advise me as to 11 whether there is any special privilege, annouring to the 12 Commissioners, and I am pointing to an example they said in (~)N ( 13 open meetings: No matter what people say, you cannot use 14 that in part two proceedings. And the purpose of that is 15 clear. 16 They want spontaneity and open information. They 17 do not want people to be afraid to express themselves.
- Now, 18 looking at communications to the Commissioners, and looking 19 at need versus -- need on one hand as necessary for a 20 decision, as compared to need for deliberative process, 21 these are the balances.
22 I believe that the NRC Commissioners have an 23 unusual need for protective deliberative process over and 24 above that which is needed by other staff people, decision-p) (_, 25 makers in the Commission, because the Commissioners function ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
~_ 1 8840 04.04 73 n $,27/bc1 1 under a very, very difficult and sometimes very. awkward way 2 of functioning. 4 i 3 For example, they are required many times to have 4-open sessions'when others are not required. They are -5 required -- they cannot have anything except quorum meetings 6 on official things. 7 They are restricted by ex parte rules from 8 getting information and.that normally they would like to 9 have administratively. So the Commissioners work under very 10 difficult impediments in respect to getting information as i 4 -11 to what is going on in the Commission. ] .i 12 Therefore, I'm looking at-those impediments and j 13 saying.that they need even more protection to keep from 14 eroding the limited accesses to information they already 15 have. 16 Normally, I would look at a document and say, 17 well, did this writer express himself or herself in 18 unrestrained terms and colorful language and unusual candor 19 that is this is disclosed it would show future advice? 20 I would not apply that test. I would apply a i 21 more severe test. And that is the precedent of opening up 22-confidential communications to the Commissioners will tend i 23 itself to affect the judgments and thinking of the officials 24 who send communications to the Commissioners. () 25 MR. BERRY: May I respond briefly, Mr. Presiding /\\CEJFEDERAL REPORTERS, lNC. 202-347-3700 Nationwide Coverage 800-336-66*6
8840 04 04 74 \\_ Vbc 1 Officer? 2 JUDGE SMITH: You're winning -- go ahead. 3 MR. BERRY: Exactly. I believe that you have 4 identified the issue at stake here. I believe the balance 5 tips towards nondisclosure and correctly so. I just want to 6 briefly respond to Mr. Presiding Officer's concern expressed 7 to the parties earlier about the applicability of Section ~ 8 9.103. And I want you to be clear that the staff -- we did 9 not assert that as a privilege. 10 And, in the interim, I have consulted on this 11 matter with a senior manager in the Office of General 12 Counsel and OGC's position with respect to that question, (._) 13 whether 9.103 creates a privilege against discovery. 14 That is not our position. We do not believe that 15 it creates a privilege -- 16 JUDGE SMITH: I did not suggest that it did. I 17 brought this section to your attention. And, clearly, it 18 does not cover private communications. 19 My question was does this establish by analogy a 20 special type of consideration for Commission protection? Is 21 it a symptom of it that may exist in other regulations or 22 other considerations? 23 MR. BERRY: You have alluded to it. It is, 24 insofar as there is a need on the part of the Commissioners k 25 for frank communications, frank dialogue from members of the ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6M6
8840 04 04 75 -rs
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staff or NRC due to the nature of their responsibilities. 2 But, in the final-analysis, as you have-3 recognized, it is the deliberative process privilege,-and we 4 30884.0404 5 BWH/bc ) 6 waive the need for disclosure versus the harm to the 7 consultive process and to the government. .8 I-would say for the staff that we believe that 9 the balance clearly tips in favor of preserving consultative functions of the' government and prevent-ing the chilling 11 effect'that would ensue if this type of document were '12 produced to -- particularly in the circumstances here to n i 13 GPU. 14 We do not believe there is need for this 15 particular document because the factual, purely factual, 16 information -- 17 JUDGE SMITH: Should I decide it on that basis 18 then? -19 MR. BERRY: Yes, to the extent that it is good to 20 decide on the narrowest grounds, the factual information has 21 been made available. The only thing. withheld is the 2:2 recommendentory predecisional deliberative information, 23 which, under the Commission regulations, is exempt from 24 discovery. 25 Ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6M6
8840 04 04 76 (.'J/bc 1 JUDGE SMITH: Unless there is a need for it. 2 MR. BERRY: Yes. 3 JUDGE SMITH: So that's where I am. There is no 4 special annouring to the Commissioners as such. I would 5 have thought that they are entitled to something more than 6 the regular office director because of their impedimous 7 dif ficulties in getting information. And I still think that 8 is the case. 9 However, for this case, let's go on as to whether 10 it is needed. I did not see the part that you got. 11 MR. HICKEY: That may be significant, especially 12 in light of the discussion that you just had with Mr. Berry. .,m k-) 13 JUDGE SMITH: Let me tell what I saw without 14 knowing what you received, and see if it is helpful. 15 As you point out, it is a -- it is a general 16 government accountability projec' request communication. It 17 is not Parks'. 18 MR. HICKEY: That document is not in contention. 19 That has been produced. 20 JUDGE SMITH: I know, but the document we're 21 talking about, A-465, concerns itself with general 22 government accountability project communication. 23 MR. HICKEY: Do Commissioners on behalf of Mr. 24 Richard Parks -- ,m k_ 25 JUDGE SMITH: But it is signed by Mr. Devine. ACE FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coserage 800-33M646 i
4 ' 8840'04 04 77 ' ' '(,,0/ bc l-MR. HICKEY: Yes, it is signed by Mr. Devine. 2 JUDGE SMITH: On Mr. Parks' behalf. 3 MR. HICKEY: Yes. 4 JUDGE SMITH: As I read the analysis of that 5 letter, which I have not myself read, permeated throughout 6 .it are the views of Mr. Devine and they can in no way be 7 traceable to Mr. Parks. 8 MR. HICKEY: I did not assume that at all. When 9 he says that, as a member of the bar, he is speaking on 10 behalf of Mr. Parks, his client, I would think it is quite 11 appropriate to attribute those views to Mr. Parks and, 12 indeed, the subject matter of the comments relate to . c) k_ 13 specific things that presumably only Mr. Parks can be the 14 source of. 15 For example, the interview by OIA -- and I'm 16 quoting from page 2 of Tir.' Devine's letter -- does not 17 accurately reflect either the facts of the case or the 18 presentation made to the OIA by Mr. Parks and his counsel. 19 If Mr. Parks does'not agree with that statement, 20 I would be -- I would think it would be quite improper for 21 Mr. Devine to say that. 22 JUDGE SMITH: That may very well be but don't 23 forget the government accountability project. It is people 24 with their own positions and I've read some of these things ( 25 that I was not able to trace through to Parks. And I 4 ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
8840!04'04 78 /^T (,J/bc 1 recognize he is writing. He has the client who is Mr. 2 Parks, but don't forget, we are talking not position here 3 for the purpose of discovery, but what this says about 4 Parks' credibility. 5 MR. HICKEY: Or what facts it may lead to. 6 JUDGE SMITH: Or what facts it may lead to. 7 MR. HICKEY: And the memorandum -- 8 JUDGE SMITH: _But, conclusions about Mr. Devine, 9 that he did not like the way OIA did this and OIA'did. 10 that -- 11 MR. HICKEY: Are not relevant. 12 JUDGE SMITH: I cannot trace them back to Parks.' ) 13 MR. HICKEY: I agree. 14 JUDGE SMITH: And in the last analysis, they may 15 not be Mr. Parks' observations. 16 MR. HICKEY: That remains to be seen. 17 JUDGE SMITH: I don't know if it ever will be 18 seen, to tell you the truth. 19 MR. HICKEY: When I depose Mr. Parks, it might be 20 addressed. 21 JUDGE SMITH: All right. 22 MR. HICKEY: But the Commissioners, SECY-84-65 23 document, from Mr. Fitzgerald, Assistant General Counsel, 24 starts out by saying that: We will interchangeably refer to ) 25 the charges in that letter as being made by GAP for Parks. ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-334 6646
s l8840'04-04 79 p /bc. LJ 1, All I am saying is that, to the extent that there 2 is an evaluation by OIA of the validity of the charges, 3 whoever made them, then I.think it is fair to attribute.them 4 to Mr. Parks. And that suggests that the charges are 5 inaccurate. 6 JUDGE SMITH: You can attribute them legally to 7 Mr. Parks. My' trouble is how much of it can you attribute 8 factually to Mr. Parks? And then I go one step further. 9 The document that we are. talking about,1 the first 10 document, consists of the analysis by the General Counsel or-11 Mr. Fitzgerald of an analysis by Mr. Devine of a -purported 12 . position of Mr. Parks. C.s-13 Now, its-value then to you to discover 14 credibility aspects of Devine is diminished by that 15 remoteness. 16 MR. HICKEY: Did you mean to say credibility 17 aspects of Parks? 18 JUDGE SMITH: Yes, right. It is diminished by 19 that remoteness. 20 MR. HICKEY: I agree that you have to trace it 21 back to Mr. Parks to make it relevant to the proceeding. 22 But, in fact, as Mr. Fitzgerald says, Parks alleged that 23 these -- and I'm talking about the concerned Mothers of 24 Middletown issue at the moment, but it is applicable to ( 25 others as wel -- Parks alleged that the public statements ACE. FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
'8840 04 04 80 / (,j/bc 1 made by Barrett of NRC were inconsistent with other 2 documents. 3 If OIA responds to that and says, as they did, 4 "We do not need to investigate that. Mr. Parks is dead 5 wrong. We have checked Mr. Barrett's calendar. He was not 6 at the Concerned Mothers of Middletown on that day. He was 7 appearing on a transcript hearing before the Commission," 8 and so on and so on. 9 Or as the OIA investigator characterized it: Mr. 10 Parks' allegation was falling apart on all fronts. 11 That is relevant to Mr. Parks' credibility. 12 JUDGE SMITH: Okay. I thought that's what you (r \\> 13 would be looking for. I did not have as much time as I 14 would have liked to have had to look at these documents. 15 The first document we are discussing does have in 16 it a lot of factual information about the issues in this 17 case. 18 Do you know what the result of that SECY-84-65 19 was? 20 MR. HICKEY: I do. 21 JUDGE SMITH: How do you know that? 22 MR. HICKEY: Because they produced documents that 23 reflect it. 24 JUDGE SMITH: Okay. O) (_ 25 MR. HICKEY: The conclusion was that, after ACE FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coverage 800-336-6M6
8840 04 04 81 k,)/bc 1 redoing the investigation to meet the challenges or the 2 accusations made by Mr. Parks or GAP or both, the conclusion 3 was that the investigation had been appropriately done; and, 4 more importantly for this case, that the factual conclusions 5 reached were accurate and Mr. Parks was wrong. 6 JUDGE SMITH: That you think is the result here? 7 MR. HICKEY: Yes. Not of this one document, but 8 this process. 9 JUDGE SMITH: The process, but this first 10 document we're talking about is to the contrary. 11 My understanding is that this document relates to 12 what is it called -- 4 -- let me see what you already have. (p> 13 MR. HICKEY: I will give you these four documents 14 that relate to this one subject, what I have. It is fairly 15 substantial. 16 (Handing documents to Presiding Judge.) 17 JUDGE SMITH: I do not have the first document. 18 I don't have SECY-84-65. 19 MR. HICKEY: It is under the cover memo, I think. 20 The first document has the transmittal memo on top of it. 21 JUDGE SMITH: Okay. 22 MR. HICKEY: I believe what is omitted from that 23 memorandum are areas where Mr. Fitzgerald concluded no 24 further investigation was warranted. O) In other words, Mr. Parks or Mr. Devine's charges (- 25 ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6M6
t 8840 04 04 82 ( j/bc (, 1 were not thought.by him to be sufficiently. serious-or well-l 2 founded to require an investigation. 3_ And what I had been given is instead the areas 4 where Mr. Fitzgerald thought further investigation was 5 warranted. That is my inference from the way the document 6 is put together. d 7 And also from the March 19th memorandum, which-8 refers to that being the subject of Mr. Fitzgerald's 9 memorandum. 10 '(Pause.) 11 JUDGE SMITH: Would you be willing to go into an 12 in camera session so we can discuss it under an oral ~ 13 protective commitment, some nonspecific aspects of these- ~ 14 documents? l 15 I think we can take the commitment of these 16 gentlemen that without a formal protective' order, that'a l 17 discussion of some general purposes of these memoranda-might 18 alleviate their concerns. 19 I do not want to put any pressure on you to do ~ 20 that. I know you were not prepared for that consideration. i 21 But,_some of these things in here are irrelevant and I not 1 22 only want -- the difficulty I am in, I can, if I wish, read 23. them and say that's it, good-bye. And there's not much you 4 24 can do about it. ( ( 25 But I would like to go further than that. And to 4 ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6M6 _.. ~..
?8840 04 04 83 A J/bc 1 the extent that I can put your mind to rest that your case m 2 is not really being hurt by not having these documents ~ 3 substantively, at the same time, I do value very highly the 4 deliberative process before the Commissioners. 5 I might say that these documents are probably the 6 most significant in their stultifying boredom. They are 7 routine, typical Commission procedural types of 8 considerations. That is what they are. They are procedural 9 considerations, much of it. 10 MR. HICKEY: You are reading from a different 11 perspective.. I found.them very interesting as a matter of 12 fact. q \\_/ 13 JUDGE SMITH: The parts that were released to 14 you, yes. 15' MR. HICKEY: Yes, because it disclosed some 16 interesting factual information that is quite pertinent to 17 Mr. Parks' credibility. 18 JUDGE SMITH: What do you think about that .19 suggestion? 20 MR. JOHNSON: I am reluctant to agree to that, 21 your Honor. I believe it would dilute the privilege that we 22 are asserting and the protections that are to be accorded. 23 MR. BERRY: I would like to add this, Mr. 24 Presiding Officer. We understand, we can understand, GPU's (O) 25 interest in seeking this information. But, under the ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Cogerage 800-336-(M6
8840 04 04 84 (./bc 1 regulations, if a document _is exempt from disclosure because 2 it is protected by the deliberative process and the party 3 who seeks disclosure of it, the Board and the Presiding 4 ' Officer can review those documents in camera, which they 5 have done, lo determine whether if, in fact, they are 6 relevant to an. issue in the case. .7 And if it is, or if it is exempt from disclosure, 8 -if the document is exempt, we.need the showing that it is 9 necessary for proper decision in the case-or unavailable 10 from any other source. i 11 Now, credibility -- 12 JUDGE SMITH: I understand the staff is taking . /~'s (_) 13 the positin that Mr. Parks' credibility is not an issue. 14 But you are wrong. It is an issue. 15 And I am ruling that. 16 MR. BERRY: We don' t dispute that, Mr. Presiding 17 Officer. 18 JUDGE SMITH: They have a right to make their 19 case. I don't know if they're going to prevail or not, but 20' their case, they have a right to say that Parks is not 21 credible. Not only th&.-, on there are credibility aspects 5 22 as to his usefulness as an employee and they are going to '23 make that case. 24 MR. BERRY: Yes, and they have not been hampered () 25 from obtaining the information that bears on that ACE FEDERAL REPORTERS, INC. i 202-347-3700 Nationwide Coverage 800-336-6646
18840-04 d4 85 ( Mbc' 1 credibility. 2 JUDGE SMITH: Information that you have elected 3 to'give them. 4 MR. BERRY: But just because a party comes in and 5 says I want to challenge somebody's credibility does not 6 entitleJthem to have access to any scrap of paper in the 7 agency's files. 8 JUDGE SMITH: I think you have a good point. And t 9 you are going to assert the full privilege. -And I'll tell 10 you what I'm going ~to do. 'I-need help. I got this rather 11 late in the-afternoon, contrary to your commitment to 12 deliver it to me the day before. C 13 MR. BERRY: I apologize for-that. 14 JUDGE SMITH: In any event, I do not feel like 15 going through all of these facts and making a determination l 16 as to whether they are necessary for decision, because they 17 may be available from some other source. ~ 18 So I will leave it to you. You can go through '19 all of these facts and you can point out to me in a 20 confidential memorandum, if you wish, fact A, it is 21 available here; fact B, is available here; fact C is .22 available there. 23 Let's do that because there were a lot of facts 24 here. And I did not want every fact that -- every fact that 25 I read seemed familiar to me. Generally familiar to me. ace-FEDERAL REPORTERS, INC. i-202 347 3700 Nationwide Coverage 800 336-6646 ., ~. - ~,,,,,,_-. -
8840 04 04 86 7w (_U/bc 1 That I had read some place in th-is case. 2 I do.not think that I can pick out the nuances, 3 that I could say the subject matter-is familiar, but the 11 nuances that you would'like to look at are beyond me and 5~ they are going to remain beyond me. 6 But, sometimes I was not clear. There is one 7 subject matter there that I do have doubts as to-whether it 8 has been made available. So let's do that. 9 How about that? You go through there and you 1110 take that factual information and you analyze it and you i 11 point out to-me that this information, if indeed it is, is 12 otherwise available. ( 13 And then we will not have the problem. 14 MR. JOHNSON: Your Honor, we will do that. My 15 only point would be that we have gone to great lengths to 16 limit the amount of redaction that we have accomplished and 17 30884.0404 18 BWH/bc 19 have endeavored in great detail already to only withhold 20 those portions which were in fact regulatory and 21 deliberative in nature. 22 JUDGE SMITH: Unfortunately, I did not have the 23 redacted version. That's part of the problem, too. t 24 I am not heaping too much blame here because I () 25 was very late in asking for this. I should have had this a ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-33HM6
n?"
- 8840-04 04 87
_m i,)/bc-1 couple of weeks ago. But the fact is we are' sitting here. s 2 today, and as I saw it yesterday, there.were facts that 3 looked generally familiar to me. But I cannot make a 4E representation that I would like to have, that those facts 5 are available from other sources. 6 MR. JOHNSON: Without looking at the document 7 specifically, I am not sure the extent to which we are =8 'actually relying on that ground. I think, it seems to me, 9 we are relying primarily.on'the disclosure'of the 10: deliberative information that'is intertwined with any 11 factual information that is there. 12 MR. BERRY: The staff will' review the materials .rh (_): 13 again and. submit to you a confidential memorandum 14 identifying those facts contained within -- those facts that 15 are -- 16 JUDGE SMITH: It is unfortunate that that will be 17 a lot of work. It is unfortunate because if I were free to 18 discuss these documents in a reasonable way, I think I could 19 put everybody to rest almost entirely that it is not 20 worthwhile pursuing. 21 It is my general view, as I read those facts, 22 nothing more than a replay of what GAP sent in to begin 23 with. That is my impression. 24 MR. BERRY: May we take a 10-minute recess and 25-consult? And maybe we will be able to reach some ACE FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coverage 800-336-6646
-8840 04 04 88 (_ Vbc 1 accommodation as to whether we can disclose or share the 2 information. 3 JUDGE SMITH: You agree with me that it is 4 generally true that the documents involved as far as they 5 relate to facts are generally a replay of the facts 6 submitted, or the _ version of the facts submitted by GAP in 7 the first instance? 8 MR. BERRY: Yes. 9 JUDGE SMITH: And they have that information? 10 MR. BERRY: Yes. 11 JUDGE SMITH: In some instances, the Messenger 12 thing is almost entirely an analysis, as the title suggests, (~b (_/ 13 of the GAP thing without his own input. This is what you're 14 getting to, this type of thing. Routine, bureaucratic 15 analyses. 16 Here's what they say, what are we going to do 17 about it. 18 MR. HICKEY: The Messenger memorandum transmits 19 factual information from the OIA investigator thing. Here 20 is the answer to Mr. Parks or Mr. Devine's GAP allegations 21 and why they are in error, or wrong about this. I did this, 22 I talked to this witness -- 23 JUDGE SMITH: Did you see the date? 24 You didn't have the date of Messenger's -- not (~) (_) 25 Messenger's, I'm talking about Ward's memo to file. ACE FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coserage 80K336-(486
8840'04 04 89 1 3/bc 1 MR. HICKEY: I have not seen that at all. 2 JUDGE SMITH: Well, he didn't have the whole 3 identification. In fairness, he did not have the whole 4 identification. The Ward memo to the file that you have 5 identified, number one, it is stamped " draft" on the top. 6 Number two, it has a date which he was entitled to. I do 7 not think he got it. 8 MR. JOHNSON: Yes, he did, your Honor. That is 9 in the index. The identification of that date, it seems to 10 me, was March 24th or 25th of 1983. 11 JUDGE SMITH: Very few days after the date of the 12 affidavit. ,i, (_ 13 MR. HICKEY: Yes. 14 JUDGE SMITH: That tells you something. 15 MR. HICKEY: Yes, it does tell me something. It 16 also tells me -- I have two comments to make about that 17 document. First of all, Mr. Ward was Mr. Meeks' superior. 18 In the investigation that Mr. Meeks conducted, in 19 areas that he inquired into or perhaps did not inquire into, 20 presumably were affected in some way by Mr. Ward's feel 21 about what in the affidavit was significant or not 22 significant, or susceptible to confirmation or not. 23 I can also tell you that Mr. -- that the TMI 24 program -- O \\_/ 25 JUDGE SMITH: No, you're going into the adequacy ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-(M6
8840 04 04. 90 -A (__if/bc 1 of Meeks' investigation. 2 MR. HICKEY: No. 3 JUDGE SMITH:- That is an area where I do not 4 think I want to follow you. 5 MR. HICKEY: No, not the adequacy but the~ scope 6 of it. Did he talk to this witness? And I will give you a 7 specific -- 8 JUDGE SMITH: I'm sorry. Go ahead. 9 MR. HICKEY: I want to make this point because I 10 have sensed that you were troubled about allegations or 11 suggestions that we were inquiring into the adequacy of Mr. 12 Meeks' investigation for the purpose of deciding whether Mr. 13 Meeks is a good investigator or not. 14 I'm not interested in that. I do not think it is 15 relevant. What is relevant is, if Mr. Parks says under i 16 oath, as he does in his 56-page affidavit, for example, that 17 the polar crane was unsafe because they used welding cable 18 instead of power cable, and that I, Mr. Parks, talked with 19 four named employees who have electrical engineering 20 expertise, and they all agree that this was unsafe and a 4 21 terrible engineering practice, and there is no mention in 22 the Office of Investigations investigation of Mr. Parks' 23 allegations of that incident, and I know that those four j 24 individuals were interviewed under oath by Mr. Stier on 25 behalf of GPUN and they all say to the contrary: i ACE-FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coserage 800-336-M46
8840 04 04 91 r ~x (_)/bc 1 "We told Mr. Parks there was nothing wrong with-2 it." 3 Then I want to ask Mr. Meeks why did you choose, 4 assuming you did not do anything to investigate that 5 allegation, why did you not? 6 There may be a reason for it. I only had so much 7 time -- 8 JUDGE SMITH: We speculate on a reason. 9 MR. HICKEY: One reason might be I only had so 10 much time, I could only cover 10 so I picked the first 10 or 11 I picked the 10 that Mr. Ward told me to look at, or I 12 picked the ones that I thought were most significant. g (_/ 13 JUDGE SMITH: All of the things that you have 14 said so far are wiped out by the fact that you are entitled 15 to a de novo hearing. You are entitled to a brand-new 16 hearing. Either they make their case or they don't make it 17 in the hearing. 18 And the only reason I'm even thinking about this 19 is that you are looking for indications in Meeks' work that 20 Parks has a credibilty problem. 21 MR. HICKEY: I do not assume that he never asked 22 Mr. Parks. To the contrary, I assume that Mr. Meeks, who 23 had 14 years experience as an investigator before he met Mr. 24 Parks, probably did ask Mr. Parks about this. And maybe Mr. 25 Parks said, I said that but I was mistaken. I don't think ace FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 800-33MM6
8840 04 04 92 r\\ i,j/bc 1 it was all that serious. s 2 I don't know what he said. But I know that Mr. 3 Parks made a claim under oath that four witnesses have 4 contradicted under oath. And I want to know if Mr. Meeks 5 asked Mr. Parks about it. 6 JUDGE SMITH: And that is a nice thing for you to 7 ask about of Mr. Meeks. But I'm looking at the documents. 8 MR. JOHNSON: Can I make a suggestion, your 9 Honor? The staff has many other things to do besides go 10 through these documents again, although it will do so if you 11 so direct -- 12 JUDGE SMITH: If the staff does not have the time AL) 13 to devote to the prosecution of this case, then you have a 14 problem. 15 MR. JOHNSON: Yes, I understand, your Honor. I 16 did not mean to say that we don't have the interest in 17 prosecuting this case. What I'm trying to expedite matters. 18 JUDGE SMITH: That would be helpful. 19 MR. JOHNSON: If we could focus. We have been 20 going from document to document. We started with an OIA 21 document and now we are talking about an OI document. 22 If you would like me to focus on a particular 23 document for purposes -- I was not clear when you asked us 24 can we go into a protected session what the scope of what O) (. 25 you would like to discuss is. ACE-FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 800-3364 446
8840 04 04 93 /bc 1 Would you like to discuss each document? Would 2 you like to discuss one particular document that is 3 representative or representative portions of each document? 4 If you were to so decide or give me guidance, 5 perhaps during a break, we could look at what it is that you 6 would like to discuss. And we could give a better informed 7 judgment about the ability of the staff to agree to such a 8 discussion. 9 JUDGE SMITH: For example, taking the first 10 document, first of the redacted information, which I alluded 11 to as boring, pertains to -- not to GAP's allegations, but 12 to -- and that is the problem. Am I free to describe the ip x) 13 general subject matter without getting into the details of 14 it? 15 But I can see that my responsibility is to look 16 at it and if I make a decision that it is not relevant, that 17 is the end of it and it is probably not appealable. But I 18 was hoping to go further than that. I was hoping to resolve 19 the entire matter generically so that the concern and 20 persistence in going into these documents might be relaxed 21 and we go on to other matters. 22 It is my view, having read it -- and I am not 23 going to reveal any of it -- but I would like to have gone 24 further than that. I would have liked to have had explained 25 better why I am not. But I don' t have to. That is not the ACE FEDERAL REPORTERS, INC. 202-347-1700 Nationwide Coverage 800-336-6646
8840 04'04 94 (3 T._ 7/bc- -1 law and-you don't have to suffer me doing it. 2 MR. JOHNSON:- Yes, sir. What I would suggest is 3 if we had an opportunity to look at the documents and 4 discuss it over a break and then maybe we could give you 5' some more guidance. 6 JUDGE SMITH: That would be very helpful. I 7 'would like to resolve the matter based upon general 8 principles of fairness here. And I don't really appreciate, 9 although I know it is my responsibility, appreciate the need 10 to make an unappealable, unreviewable judgment'that there is 11 information they do not need. That is the law and I will do 12 it if I have to. (~) A/ 13 MR. JOHNSON: What I am saying to you is that it 14 would be useful to us if you would like me to focus on a 15 particular document or portions of a document. Then we can 16 reach a judgment -- 17 JUDGE SMITH: For example, the drafts on page 32. 18 They are useless to them, I believe. Can't you explain to t 19 them why? As a matter of fact, I don't even believe you had 20 to identify them as being relevant to this case. 21 Do you know what I'm talking about? The ones on 22 32, the undated draf ts, memorandum from Harold Denton. 23 Incidentally, you say two undated drafts. There's only one 24 that I could find. () 25 I think those drafts are totally useless and it ace-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-MW)
8840 04 04 95 ., /bc 1 would put an end to it if I could just say, Hey, they are 2 about something else. The use of the word allegation -- 3 MR. JOHNSON: We do not have any problem -- we do 4 not have any problem with the Judge characterizing the 5 documents. 6 JUDGE SMITH: That's what I'm talking about. 7 Characterization goes beyond what you have released. And I 8 want to -- these documents on page 32, I simply was not able 9 to find any -- those are technical documents, highly 10 technical documents. And I was not able to trace any 11 relevance to this civil penalty proceeding at all, i 12 MR. JOHNSON: We don't have any objection to your () (_) 13 describing the content -- 14 JUDGE SMITH: It doesn't have anything to do with 15 the case. It is a mistake that they are there, I think. 16 And that is the kind of thing, if you could just yourself 17 sit down over the lunch hour and say, hey, you know what 18 these documents are about? They are about something -- and 19 tell them enough about it that the thing I am saying -- 20 maybe you do not agree. Maybe there is relevance here that 21 I have not detected. 22 I just can't see any at all. 23 NR. HICKEY: Might I suggest, Judge Smith, 24 because in an interrogatory answer which the staff filed (~h () 25 identifying their witnesses, they described that Mr. Beach ACE FEDERAL, REvonTEas, INC. 202 347-1700 Nationwide Coserage MX)-334M6
8840 04 04 96 g (,2/bc. I was one of the investigators assigned from I&E to 2 participate as a technical person in this investigation, 3 would testify as a witness in this hearing. 4 And what Mr. Beach is going to testify to, I am 5 reading from the staff's interrogatory answer No. 72, of 6 February 19th, is Mr. Beach will testify concerning the 7 validity of the concerns raised by Mr. Parks relating to the 8 failure to follow various procedures -- I'm paraphrasing -- 9 and Mr. Beach will also testify on the safety significance 10 of the violation of such procedures identified in notice of 11 violation EA-83-89, issued to GPU. 12 And it continues. O) x_ 13 JUDGE SMITH: And that is where you are getting 14 into the very technical aspects of it. 15 MR. HICKEY: That is the staff's plan about what 16 they intend to elicit from the witness. 17 JUDGE SMITH: Maybe it is relevant, but this 18 discovery exercise is also helpful in that I am getting 19 hints about where the case is going to go, where I don' t 20 really think I want it to go. 21 MR. HICKEY: That may be and it may affect the 22 relevance of it. But what the staff says, this is what Mr. 23 Beach plans to testify to -- 24 JUDGE SMITH: You had to take their word. O \\m) 25 MR. HICKEY: I believe that's what they're going ACE FEDERAI. REPORTERS, INC. 202 347 3700 Nationwide Cmcrage 80)-33MM6
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1 to try.. ~2. JUDGE SMITH: We will return at.1 o' clock. Would 3 that be enough time? 4 MR. JOHNSON: That would be fine. Can you give ~ 5 us back our copy so we can look at it? 6 JUDGE SMITH: Also, I would like for you to note 7 in-there that I have marked some documents-as not on the 8 list. There are some documents I have received that do not 9 seem to appear in the description that I am working from. 10 And that is April 6th memorandum. 11 So-would you look at those and see am I wrong 12 about that? 13 And also I know that there was'only one draft 14 where they say to and if there is an explanation required 15 for that. 16 MR. JOHNSON: Yes. Apparently -- 17 MR. BERRY: I can provide an explanation for that-18 easily, Mr. Presiding Officer. The drafts are identical, so 19 the staff just produced the data. 20 JUDGE SMITH: All right, very good. Good 21 explanation. 22 (Whereupon, at 12:01, the hearing recessed, to 23 reconvene at 1:00 p.m., this same day.) r i 24 () 25 /\\CEJPEDERAL REPORTERS, INC. i 202 347 3700 Nasitmwide Coverage 800-3364M6
. ~ _ -. --. . ~ -. i:- 1 0 08 Ol' 98 Wbur 1 AFTERNOON' SESSION 2 JUDGE SMITH: Back on the record. 3 Mr. Johnson. 4 MR. JOHNSON: Yes, your Honor. We have consulted 5 over the lunch break, and it-is the Staff's view that.we 6 would be agreeable to an.in camera session in which you 7 characterize -- without revealing = specific recommended I 8 information -- characterize the nature of the discussions 9 and the documents as to those parts which have been '10 withheld, with the stipulation that the information that F 11 counsel would get could not be used in this proceeding or' !~ 7 -12 for any other purpose. i 13 JUDGE SMITH: And not revealed? 14 MR. JOHNSON: Yes, sir. 15 JUDGE SMITH: Without further order? t 16 MR. JOHNSON: Yes, sir. l 17 JUDGE SMITH: Gentlemen, would you agree to those i 18 conditions? 19 MR. HICKEY: Yes. I 20 JUDGE SMITH: Let's think about this for a minute I 21 because some of this information will come to you through 7 22 another sourco, and that is not covered, of course. I 23 MR. HICKEY: I was going to mention Mr. Lewis 1 24 suggested to me that to the extent that you tell us C:1 [ 25 something now in camera and in throo wooks in discovery or /\\CE. FEDERAL RevonTEns, INC. I 202-347 3700 Nationwide Cmcrage 8 m 336 & t6
\\ 8840 08 01 99 3 LIWbur 1 from a witness I get the same information, I am free to use 2 it if it is coming from the witness. 3 JUDGE SMITH: This is pretty traditional 4 protective order problems. 5 All right, gentlemen, that would be your 6 commitment, and that would be my order. 7 MR. HICKEY: Yes. 8 JUDGE SMITH: With that, then, Ms. Reporter, I 9 would like to have from this moment on, at the end of this 10 sentonce, a separate transcript with a separato number, 11 beginning with number-1, and I will tell you when we como to 12 the end of that. 13 MR. HICKEY: The commitment was on behalf of the 14 firm -- this is for Mr. Ross -- Mr. Ross, Mr. Lewis, and 15 myself. 16 JUDGE SMITH: Mr. Ross was not aware. I want him 17 to be personally aware of what we are going to do. 18 Mr. Ross, we are going to go into an in camera 19 session, in which you are obligod -- as will be explained by 20 your colleaguos, you are obliged not to reveal the 21 information that you hear here as such unless you are 22 relieved of that obligation. 23 This information may como to you through another 24 source, and that would be a different problem, but your 25 colleagues will explain that to you. ACE. FEDERAL IREPORTERS, INC. 202447-37(o Nationwide Cmcrage 800-33MM6
8R40 08 01 100 HLWbur 1 Do you accept that restriction? 2 MR. ROSS: Yes, sir, I do. 3 JUDGE SMITH: Would you close the door back 4 there? 5 Now, we will start with number 1 in an in camera 6 session. 7 (Whereupon, at 1:09 p.m., the conference went 8 into in camera session.) 9 10 11 12 ~ 13 14 15 16 17 18 19 20 21 22 23 24 , - ~ 25 Acil FliDIiRAl. Rl!PORTIIRS, INC. 202-347-3700 Nationwide Cmerage 80tb 336 M46
8840 08 02 139 Wbur 1 OPEN SESSION RESUMED 2 (2:16 p.m.) 3 MR. HICKEY: I understand that some of the views 4 which you expressed, Judge Smith, during the in camera 5 session may be appropriate for disclosure in a public 6 session as well, and specifically you made some comments, 7 that I want to repeat, to the effect that in your 8 judgment -- on a preliminary basis at least -- that means 9 the issue of the safety significance of Mr. Parks' 10 allegations was one that you felt was not necessa'ily or r 11 maybe not preferably an element for testimony at the hearing 12 and that you would urge the parties to seek some factual i 13 stipulation of the significance of Mr. Parks' concerns. 14 JUDGE SMITH: I do not want to suggest that if he 15 raises a concern that could not conceivably have safety 16 significance that that would be protected activity. 17 I am suggesting that so long as it arguably is an 18 area of safety significance, whether he is right or wrong, 19 is not an issue for me to decide. 20 MR. IIICKEY: I understand. 21 JUDGE SMITil The correctness of his position is 22 not important. The fact that the position related to safety 23 significance subject matter is important. 24 MR. IIIC KEY: Then it becomes protected activity? 25 JUDGE SMITil: That is my view, and that was the ACE-FEoERai REPORTERS, INC. 202-347 3700 Nationwide Coserage mF 33MM6
8840 08 02 140 Wbur 1 reason why the three papers that we most recently discussed 2 -- those appearing on page 32, the drafts memorandum from 3 Denton, Dircks, to liayes from Snyder, TMI PO and TMI PO 4 staff drafts of inputs to SECY 84-36 -- I was not able to 5 identify a reason why I believe that they would be needed to 6 render a decision in the case, but I believe that they are 7 predecisional on their face and are entitled to the 8 deliberative process privilege. 9 But I also expressed the view in camera that 10 because of their highly technical nature and because they 11 seemed to be a debate among engineers, a nonpejorative 12 debate among engineers, that the need for protection does 13 not seem to be so great, and in any event, I decided to hold 14 the matter in abeyance and try to figure out a better 15 solution to it. 16 And I urge the parties to try to come to some 17 stipulation on the issue of safety significance to see if wo 18 cannot avoid a litigation on it. 19 MR. JOEINSON: Yes, sir. I will attempt to work 20 with Mr. Hickey on that. 21 MR. HICKEY: Yes, sir. 22 JUDGE SMITH: Now, I think we have completed the 23 first motion to compel. 24 MR. !!ICKEY: Yes. 25 And, Judge, I appreciate your taking the time to ace.FFDERAl. IlEPORTERS, INC. 202 347-3700 Nationwide Cmerage M43 % 6646
' 8 40 08-02 141 Wbur 1 go through this material that was not provided to us and to 2 assure us th'at there was not'significant material in it. 3 We are in~the position of having only a blank 4 page,-not knowing what is on it. 5 JUDGE SMITH: I am sensitive to your position. 6 You know, it makes you nervous, and careful lawyers do not 7 want to walk away from that. 8 Now, I gave those to you, back to you during the l 9 lunch break, and I pointed out that some of these were not 10 on the list. 11 For example, what do you want to do about that? 12 MR. JOHNSON: We will take them back if they were O s_J i 13 improperly given to you. f 14 (Handing document to counsel.) 15 JUDGE SMITH: Do you mind'if I describe these 16 things? 17 MR. JOHNSON: If they should not have been turned 18 over, then there is no point in describing them. l j 19 JUDGE SMITH: All right. This puts me in an i 20 uncomfortable position -- take them. You look at those and i 21 soo if they suggest to you a failure to respond to i 22 discovery, if they creato any problems. 23 When I saw that they were not on the list, I just 24 walked away from them. O 25 MR. JOHNSON: It must be a mistake. Wo turned ace-FEDERAL REPORTERS, INC. 202447 3XO Nationwide Cmerage 8 % 316 # 46
8840 08 02 142 Wbur 1 these documents ultimately over -- the first one is March 2 22nd, 1984, memorandum to file, Mr. fle rr. I believe we 3 turned that over. 4 MR. HICKEY: I believe they did. 5 MR. JOliNSON: I believe that is the reason they 6 are not included. 7 JUDGE SMITH: I am returning to you all of the 8 documents that you gave me, with the exception of those on 9 page 33. I am keeping thoso -- 32. 10 Please be sure that I have -- I did not make 11 copies of those documents. I do not possess them anymore. 12 MR. JOliNSON: Just to clarify for the record, the ~ 13 documents that we turned over that were not subject to the 14 motion, as reiterated, were documents that were originally 15 subject to the motion to compel, but which we then 16 subsequently determined we could turn over. 17 JUDGE SMITH: I am not done returning documents. 18 I have some more here. 19 (llanding documents to counsel.) 20 JUDGE SMITil: Would you see if I mistakenly 21 returned to you Item No. 3 on page 32, which is the TMI PO 22 staff drafts of input? 23 MR. JOilNSON: You did not, sir. 24 JUDGE SMITil I don't seem to have it, but my t 25 notes indicate that I must have had it. ace.I7EDERAL IlEl'ORTERS, INC. 20244717m Nationwide Cmcrave 8m4M mt6
8840 08 02 143 Wbur 1 Let's take a short break. 2 (Recess.) 3 JUDGE SMITH: Back on the record. 4 As I indicated before our most recent break, I 5 cannot find Item No. 3 on page 32, which is TMI PO staff 6 drafts of input to SECY 84-36, evaluation of various OI 7 findings, Parks' safety allegations. I have mado a note on 8 it that it is predecisional on the face of it. I do not 9 have a crisp memory of it, but it runs in my mind that I 10 could not find Parks' safety allegations in there. I 11 assumed that I had it. 12 Would you please examino your papers again to ,m 13 make sure that I have not returned it to you? 14 MR. JOHNSON: Yes, sir. Right now? 15 JUDGE SMITH: Whenever. I don't want to loavo it 16 open because it is a paper that will have to be found 17 because of your assortion of privilogo. 18 MR. JOllNSON: As I said before, you did not 19 return it to us. I will look again. 20 JUDGE SMITil: And I cannot find it. It is lost. 21 And let's go on from thero. 22 I am prepared now to move to the next item, which 23 is the motion to subpoona Mr. Mooks. This discussion begins 24 at pago 35 of your ordor. rs 25 The thrust of this is that you want to deposo Mr. Acit.Funiinat. REvonTuns, INC 202a n Mon N.uionwide Oncrape m n D6 ua6
7_ t l-l 8 40 08 02 144 Wbur 1 Meeks, identify'some seven or eight reasons why you wanted L 2-to depose him. I would like to go through each of them and 3 give guidelines as to whether each of them is a valid reason - j 4 and should be covered. l 5 I'do not believe as a preliminary ruling that Mr. l 6 Mooks' affidavit is sufficient, given the asserted need by 7 the Licensee to inquire further into Mr. Parks' credibility. 8 Now, you begin as your reasons for deposing Mr. ? l 9 Mooks at the bottom of page 35. You say l 10 "First, Meeks' affidavit or 11 the Staff responses resolved 12 GPUN's questions regarding the O 13 various accounts of Parks' 14 interviews." 15 I understand that, but the next sentence j f 16 "For example, pages 27, 23 of l 17 GPUN's first motion to compel, 1 18 GPUN identified a Commission I i 19 mooting on June 6th, '83, during 20 which OI Director Don llayos f 21 indicated the existonce of 22 momoranda prepared after Parks' t 23 interview." 24 I just don't understand that. I don't know what i O 25 it means. It doos not help me at all. j Ace FenenAL RunonTuns, INC, 202 347 3700 Nationwide Cmerage Mn136 M*46
8840 08 02 145 73 ' lWbur 1 MR. IIICKEY: Can I respond to that, Judge? 2 JUDGE SMITil Yes, please. 3 MR. HICKEY: It really also covers the next 4 paragraph, also. It relates to the question of what 5 statomonts, what written record was prepared of Mr. Parks' 6 discussions with Mr. Mooks, and wo had been provided some. 7 The reference to the transcript is Mr. Ilayos 8 telling the Commissioners that Mr. Mooks was interviewod by 9 OI representativos for about 10 hours. 10 JUDGE SMITil I have that. 11 MR. IIICKEY: And when asked a further question by 12 the Commissioners, said -- I don't remember exactly what Mr. U 13 Parks said. I would have to review the memoranda that woro 14 prepared. Wo havo no document that appears to be the 15 memoranda that woro prepared. And so we want to ask Mr. 16 Mooks if he knows what memoranda Mr. Ilayon was referring to 17 and woro thoro memoranda prepared. 18 JUDGE SMITils llavo you asked Mr. Johnson? 19 MR. IIICKEY: Through our papers we have asked Mr. 20 Johnson, yos, and tho statomont from Mr. Mooks in I havo 21 given you what I havo. 22 JUDGE Si1ITils llo doos not know? 23 MR. IIICKEY: I don't know that that is the 24 answor. 11 0 says ho has given us what he has. But Mr. !!ayos O) R-25 is cloarly referring to the existenco of nomo document or Aci 17notinai. REi>onTens, INC.
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('"O 08 02 146 V BLWbur 1 documents. He says memoranda. 2 In addition, Mr. Devine, Mr. Parks' counsel, was 3 called by Mr. Mooks in May, and Mr. Mooks asked Mr. Devino 4 whether he could send to the Department of Labor Parks' 5 ontire statement to the NRC. 6 JUDGE SMITil: That is separate from the memoranda 7 that Bon Hayes alluded to. 8 MR. IIICKEY: Yes, but it is the same subject. We 9 want to examino whether there are additional documents that 10 woro prepared by Mr. -- 11 JUDGE SMITH: I want to take each in order. I (^} 12 want to tako one, as you have explained it. Mr. Ilayos told x-13 the Commissioners that there woro momoranda prepared after 14 the Parks interviews, and the allegation is that Staff has 15 ignored this reference. 16 Now, it is up to you. 17 MR. JOllNSON: The Staff -- it is the Staff's 18 position that wo have turned over ovary document that 19 portains to Mr. Parks' interviews, and if one of them is a 20 memorandum -- if a memorandum such as that as roferred to in 21 this transcript exists, it was produced. It is not clear 22 from the face of it what is being roferrod to. It is 23 concolvable that the momoranda is the momoranda of tho 24 transcription, such as it was, of the interview taken at the {} 25 interview -- or after the interview. We are uncertain of Aci! Frint!RAl. Ill!PORTliRS, INC. 202-147-37(1) Nationwide Cmcrage Mn3E(M6
i I'70 08102-147 Li BLWbur-1 that. 2 JUDGE SMITH: So you are inferring from the fact 3 that all memoranda has been turned over, that this memoranda ~ 4 has been turned over? 5 MR. JOHNSON: Yes, sir. 6 JUDGE SMITH: Is there any possibility that you 7 would ask Mr. Hayes? Is that memoranda you are referring to 8 included and send it over.and get rid of.that problem? 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Acn. FEDERAL RneonTnns, INC. 202 347 3701) Nationwide Coserage M)-33MM6 l
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MR. HICKEY: I'want'to ask Mr. Meeks. 2 JUDGE SMITH: Ask'him what Mr. Hayes meant? 3 MR. HICKEY: No. What documentation he created 4 of his interviews with Mr. Parks. t 5 JUDGE SMITH: We will get to that general subject 6 matter. 7 MR. HICKEY: I did not ask to depose Mr. Hayes. } 8 I would be interested in what Mr. Hayes says, if he 9 remembers what specific memoranda he was referring to. But f 10 it indicates at that time, in June of 1983, there were 11 memoranda in existence. 12 JUDGE SMITH: This is examples of reasons of why
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13 you want to depose him. 14 MR. HICKEY: Yes. 15 JUDGE SMITH: This particular memorandum is-not 16 bugging you particularly. It is just the general subject of 17' the memoranda and you want to inquire. i' 18 MR. JOHNSON: Our point is only that, to the i 19 extent that the inquiry into Mr. Meeks -- to Mr. Meeks by 4 1 20 deposition focuses on the existence of documents, it is 21 essentially an attack on his credibility. 22 JUDGE SMITH: On Mr. Meeks' credibility. l 23 MR. JOHNSON: That's right because he represents 24 that everything was made available. And so do we. {} 25 JUDGE SMITH: I do not look at it that way at Ace FEDERAL REPonTnns, INC. 202 347-3700 Nationwide Coserage ax)-3346616
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,] BWH/bc 1 all. It.is one' thing for cautious counsel to accept an 2 affidavit. It is an entirely ~different thing to list items 3 that he feels are not covered by affidavit, and choose to 4 inquire further. 5 It does not even suggest to me in the slightest 6 that Mr. Meeks' credibility is under attack here. I hope 7 'Mr. Meeks'would be disabused of that. It just did not occur 8 to me that that'would be an issue. Maybe Mr. Meeks' 9 completeness or his appreciation of the need to be complete 10 may be in dispute,-but I don't think there's any credibility 11 problem here.. (~N. 12-All right. Number two, item, the next paragraph, \\_) 13 quite similarly, GPUN inquired about a complete statement of 14 Parks' interviews mentioned in a May 5 telephone 15-conversation between Meeks and Tom Devine. 16
- Quote, "I looked at Exhibit 24 and I see that 17 reference."
Ouute, "This document indicates Devine's 18 agrooment and Parks' entire statement could be referred to 19 the Department of Labor." Quote. 20 Do you want ot ask him about that and then find 21 out was it, in fact? 22 MR. HICKEY: Yes, and what did it look like and 23 where is it? 24 JUDGE SMITH: All right. Fair enough. Because 25 you're going to observe that DOL has not given you the ace-FEDERAL REPORTERS, INC. y 202 347 3700 Nationwide Coverage 8(0 33M646 p.
y LF'70 09 09 150 .O BRH/bc 1 report, so you don't know. 2 MR. HICKEY: That's right. 3 JUDGE SMITH: And DOL is not happy and they are i 4 not cooperating. Do I understand that? 'k 5 MR. HICKEY: That is also why I want to ask Mr. ) 6 Feinberg and why I've asked for Mr. Feinberg's documents, to 7 see if there is a statement given by Parks to the NRC that h. 8 Meeks'then referred to the Department of Labor. b 9 MR. JOHNSON: It's my understanding from 10 listening to.the Department of Labor's representative here a 11 this morning that no factual information was withheld. The 12 file was in their possession and there was.only privileged ,y ) 13 information.that was being withheld. '14 JUDGE SMITH: The difficulty is, is that the law 15 requires me to decide what is privileged. 16 MR. JOHNSON: Yes, sir. h) 17 JUDGE SMITH: I did think that the gentleman from 18 the Department of Labor made representations that there were 19 no interview notes in there. And that the only thing that -20 was in there were interagency memoranda. 9s .,. Is. 21 MR. JOHNSON: That is my recollection. 22 JUDGE SMITH: Which she says is privileged. 23 Well, i t's too bad we could not have reached accommodation (} With him, but when he takes a position that whack, nothing, 24 25 that's it, we have told you what we're going to, then I have ACE FEDERAL REPORTERS. INC. iO*- 202 347-3700 Nationwide Coserage 800-336-6646 4 e -.,S.m se w t wit e e v
[;00909 151 \\) BWH/bc 1 to allow them to pursue their remedies. 2 We were and are still willing to work with them 3 in determining what should or should not be released from 4 the Department files. 5 And the third item that I see is the differences 6 on page 37, the first full paragraph, GPUN is also puzzled 7 by differences between teh 13-page statement and subsequent 8 separate statements. 9 And you allude to subsequent separate statements 10 and the OIA report on the other hand "obtained 110 lines of 11 text that appeared nowhere in the 13 page statement." 'T 12 I think that raises a legitimate question. (G 13 MR. JOHNSON: Your Honor, so that I can 14 understand your thinking, what is the question that is 15 raised by that point in your mind? 16 JUDGE SMITH: GPUN says that Mr. Meeks' affidavit 17 suggests that all information obtained from Parks was 18 recorded in initial draft. 19 As it turns out, subsequent separate statements 20 which were derived from that 13-page initial draft, it 21 contains approximately 110 lines of text. There is an 22 inconsistency if this statement is true on page 37, which 23 you can dispute. (' S 24 I agree, I see an inconsistency. It is a \\) 25 question of logical comparison between the premise, you ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6646
l [^]O.09 09 152 s_/ BWH/bc 1 know, the -- the inconsistency between the sentence that Mr. 2 Meeks' affidavit suggests that: All information obtained 3 from Parks' recorded initial draft and the fact that 110 4 lines were not has to be addressed. 5 MR. JOHNSON: I understand now, sir. 6 JUDGE SMITH: I will give you an opportunity any 7 time you want to take it to say not so, or I don't 8 understand, or whatever. 9 MR. JOHNSON: My understanding is that, in 10 general -- I cannot speak specifically to the particular 11 document because I do not have it at hand -- there were (~ 12 revisions at certain points before the statements were \\_)T 13 signed. 14 And it is possible. I would be speculating, but 15 it is possible, quite possible, that when the original draft 16 was submitted to Mr. Parks, that things wore edited. 17 JUDGE SMITH: Okay. 18 And so the concern is that they were added after 19 consultation with counsel? 20 MR. HICKEY: Yes, and other material was deleted. 21 It is not the same statement, so that there was some action 22 with regard to it. 23 MR. JOHNSON: You don't mean counsel, do you? /~N 24 JUDGE SMITH: With Mr. Parks' counsel? (_/I 25 MR. JOHNSON: Mr. Parks' counsel. ACE FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 800-336-6646
- r O 09 09 153 V
BWH/bc 1 MR. HICKEY: Yes. 2 JUDGE SMITH: Fair inquiry. 3 Number four, this is the other situation where 4 some information that was dropped -- now, I missed this 5 point. All right. Number four begins -- my number four 6 begins at the top of page 39, where it says, " Conversely, 7 the sr ff represents that all information which may have 8 been recorded in such preliminary versions of Parks' OI 9 statements was faithfully included in the final reports." 10 That is the other side of the coin, conversely. 11 The 13-page statement contains 50 lines of text, ~'s 12 including two full paragraphs, including the mystery man ' (d 13 allegation, that does not appear in any final report, may 14 appear in a fourth statement. But no such statement has 15 been produced by the NRC staff. 16 What does the staff say about that? 17 MR. JOHNSON: The fourth statement is a statement 18 by the mystery man, which was never finalized and which 19 was -- a draft of which was produced. 20 JUDGE SMITH: That is one that will come up in 21 the protective order. 22 MR. JOHNSON: Yes. 23 JUDGE SMITH: It is called the Mystery Man Draft. (~' 24 Exhibit A, that they have attached. V) 25 MR. HICKEY: Yes, sir. ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Cov, rage 800-336-6M6
f^'0 09 09-154 U- 'BWH/bc 1 JUDGE SMITH: I regard number five as beginning 2 at the bottom of page 39, quote, "Other documents indicate .3 that~all information obtained from Parks and recorded in 4 Meeks' interview notes was reproduced in the 13-page draft." 5-And this is something that has constantly 6 impressed m'e all along, is that Mr. Hayes said that the 7 initial interview lasted.10 hours and there were two more 8 interviews. And there could have been as much as 24 hours, 9 according to Parks' version. 10 And, yet, given the sparsity of: information. that 11 results from these interviews, it is in itself, to me, a-(" 'y
- reason to depose Mr. Meeks.
12 ~ 13 .I have item number six by my count that begins in 14 the middle of the first partial paragraph,_page 40.
- Quote, 15 "In addition, the NRC. produce'd during discovery written 16 questions to be asked of Parks."
17 MR. JOHNSON: Page 40? 18 JUDGE SMITH: Page.40, the top, first partial 19 ~ paragraph. 20 MR.-JOHNSON: Yes, sir. 21 JUDGE SMITH:. Quote, "In addition, the NRC 22. ' produced during discovery questions to be asked of Parks." 23 I understand now the NRC gave you questions that 24 somebody had proposed to ask of Parks. 25 MR. JOHNSON: Yes. ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
'O-155 I^Y.0909' ~ Q_ BWH/bc 1. JUDGE SMITH: And yet you cannot find where those 2 . questions were answered. L MR. HICKEY: Yes. ~ 4 JUDGE SMITH: And.you want to know what happened 5 with those questions and if any answers?- 6 MR. HICKEY: Yes. 7 JUDGE SMITH: I understand it now. Fair. Here 8 is where you start having some trouble though. I continue 9 the analysis of number six in the next paragraph, that you 10 wish to ask Meeks whether these and other questions were-11 asked. r-} 12 And of course you're going to find out what-(./ And then you're going to pursue with 13 responses. Parks gave. ~ 14 Meeks any corroborating' evidence or witnesses that Parks' 15 cited, or in the absence of any such evidence, the 16 circumstances of the interview. 17 And then you get into Parks' demeanor and Meeks' 18 effort to verify Parks' information. I want to know why you 19 want to do those two things. 20 MR. HICKEY: The demeanor is simply as I referred 21 to earlier this morning, an interest in asking Mr. Meeks as 22 he addressed what may have been a number of topics, because 23 Mr. Parks' affidavit of 53 pages has numerous allegations in (~} 24 it of various kinds of wrong-doing that he claims was going \\_/ i 25 on and relates to his harrassment, as he views it, the ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6646
f^' 156 'L ),0 09 09 BWH/bc L1 world. 2 If Mr. Parks was confident, forthcoming, candid, 3 voluble about allegations one,' three, five and seven, and s 4 reticent, timid and uncertain about two,_four an'd six, that '5 may have-affected the decision by Mr. Meeks to pursue them 6 or not pursue them. 7~ And it may also give me a basis for wondering 8 about how confident or sure Mr. Parks was about those. That 9 is really all I mean by_" demeanor". 10 JUDGE SMITH: This is where you lose me. 11 1-MR.. HICKEY: Okay. It is just an investigator. 12 All I can say is, if there is an interview context that is .{ } 13 going on-where Mr. Meeks and Mr. Parks are going throu'gh a-14 lot of material ~, I want to'know in general what-the 15 circumstances of the interview were. 16 Mr. Parks was_there with his counsel. Was-the l'7 counsel-interjecting frequently? Prohibiting Mr. Parks from 18 responding to questions? Was lir. Parks reluctant to answer 19 questions posed by Mr. Meeks? 20 I just want to understand,the framework of the 21 interview because that allegedly generated a statement by 22 Mr. Parks, and the circumstances of the statement will be 23 relevant at the hearing. 24 JUDGE SMITH: As you have probably predicted, I'm [ 25 probably going to authorize deposition of Meeks; when we get ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6646
1F"10 09 09 '157 -Q BWH/bc-1. .done with that, let's go over the ground rules. This is a a 2-1 general problem. '3 And~we will discuss it.- It is my inclina' tion 4 that you probably-should not do that except-in a limited way 5 that I. told you about. The question about his-demeanor and 6 Meeks' response to his demeanor might be relevant solely as 7 a clue that Meeks may have gonerand gathered other 8 information. 9 MR. HICKEY: Where did you talk to Mr. Parks? l-10 What time was it? Who was there? How did the-interview ). .11 begin? And, how did theLquestioning proceed? And how did -12 Mr. Parks respond? 13 It was not anything more deep-th'an that. I 14 really thought it was kind of an ordinary question about the- .15 context of the interview. 16 JUDGE SMITH: Moving to my number 7, GPUN wishes 17 to make similar inquiries concerning the statement and 18 testimony of other witnesses that other witnesses gave to 19 OI: "There were about 20 of them." 2:0 You are suggesting that you infer from the Parks 21 situation that the other witnesses, reports of the other 22 witnesses' testimony was similarly truncated. 23 MR. HICKEY: I don't know, but it is an effort to -rg. 24. find out what information Mr. Meeks learned. Presumably, he O 25 was going out to try to cooperate or confirm or discredit -- ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
m '!^^10.09 09 158 V BWH/bc l-I don't mean to put a perjorative sense no it. He was 2 trying to evaluate, trying to find information to evaluate 3 Mr. Parks' claims. 4 JUDGE SMITH: This is still in the context of 5 Parks' credibility? 6 MR. HICKEY: Yes. 7 And if witness A told him Mr. Parks may have told 8 you that, but Mr. Parks is dead wrong, it did not happen 9 that way at all. 10 JUDGE SMITH: And Meeks' failed to put that in the 11 final report, that is significant. 12 MR. HICKEY: Or even if Mr. Meeks knows it, I (~)S \\m 13 would like to know it. 14 JUDGE SMITH: All right. Number 8, I designate-15 as a paragraph beginning midway on page 41. 16 MR. HICKEf: I must confess it seems to me a 17 little repetitive of something we've said before; namely, 18 that there are some indications that not all of.the 19 information was included in the interview. 20 The example that we cite here relates to a 21 witness rather than Mr. Parks, but it is the point that-was 22 made earlier. 23 ("3 24 t/ 25 ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
V ~ T^'10 10 10 159 Cl BWH/bc 1 You are pushing it to the very limit - you've 2 won so far unless Mr. Johnson -- 3 MR. HICKEY: It is important. And maybe this is 4 part of the factual context that it is worth taking a moment 5 on to try to elaborate. 6 Mr. Parks-went public with his affidavit press 7 conference on March 23rd, and that was learned by the 8 company the evening before, that it was going to happen. 9 So, on the morning of March 23rd -- and this is 10 all undisputed -- there was a staff meeting at TMI, part of 11 the purpose of which was to tell the staff that there would (~3 12 be a press conference by Mr. Parks later today to put out C/ 13 the word. 14 And there is a significant discussion about what 15 happened at the staff meeting and what was said by people, 16 because the staff believes that there were comments made 17 that suggested retaliatory motive at the staff meeting 18 against Mr. Parks. 19 So the staff meeting is an important issue. One 20 of the witnesses who was at the staff meeting claims to have 21 made notes -- not at the meeting, but thereafter. 22 The notes are not referred to in the OI report, 23 although the witness was interviewed by Mr. Meeks. And the (') 24 subject of the staff meeting was addressed, we believe. But v 25 there is no reference to the notes. ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-334 6646
r ~' 10 10 10 160 V BWH/bc 1 And we think it is very important to know whether 2 Mr. Meeks asked the witness if he had any record of the 3 staff meeting that he was talking about, and if the witness 4 said yes, which presumably he did, whether Mr. Meeks got 5 that information and pursued it with the witness. And what 6 he was able to learn about it, because it is an important 7 event. 8 So its absence from the 01 report of this witness 9 interview is not, in our view, a minimal dropping of a fact, 10 it is a fairly significant item. 11 JUDGE SMITH: And who was to made this known? - (~'i 12 Mr. Gishel? \\,_) - 13 MR. HICKEY: Mr. Gishel, yes. 14 JUDGE SMITH: And he has a memory problem and the 15 notes would be important? 16 MR. HICKEY: Yes. 17 JUDGE SMITH: And that is an additional reason? 18 MR. HICKEY: Yes, I hope I have not changed my 19 position from where I was when I started talking. That is 20 why I think it is important, Judge. 21 MR. JOHNSON: Let me conclude on this what Mr. 22 Berry and myself would like to address, the overall 23 regulatory standards on which this decision -- on which the (~'S 24 deposition of Mr. Meeks ought to be based. V 25 Would you like us to address that now? ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-3364M6
. r'10 - 10 10 161 N). BWH/bc l' JUDGE SMITH:' Yes.- You can'do both the 2- ' standards, and then we can discuss the standards, discuss '3 the substantive appropriateness of what I am'about to rule, 4 too. 5 As you can infer, I think that all eight of these 6 areas raise legitimate areas to inquire into. 7 (Counsel conferring.) 8 MR. BERRY: Thank you, Mr. Presiding Officer. 9 First, preliminarily, I would like to say that 10 staff.does not necessarily agree with the views expressed by 11 counsel for GPUN as to the relevance and we understand that 12 the Board is inclined to agree with Mr. Hickey. (} 13 Even though the staff does not, it seems to the 14 staff that, under the regulations, the deposition of a' named 15 . staff individual is authorized when that person has unique 16 knowledge of material fact that is unavailable from any 17-other source. 18 Now, here, Mr. Meeks may know something that may 19 bear on Mr. Parks' credibility. And at the risk of 20 repeating myself from this morning, the staff believes that 21 that relationship is so tenuous that, under that standard, 22 we can authorize discovery of any document of any person 23 because under some theory it may bear on Mr. Parks' 24 credibility. '{g (.J 25 In this case, what we have is Mr. Meeks was an ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-33 & 6646 l-
F0 10 10 162 Yl BWH/bc 1 investigator who performed an investigation into certain of 2 Mr. Parks' allegations after all of the events set forth in 3 de novo had transpired. Mr. Meeks has no other motive or 4 the reasons why Mr. Kitler, for example, removed Mr. Parks-5 as a startup supervisor and member of the testing group. 6 Mr. Meeks has no personal knowledge of -- has no 7 knowledge of Mr. Parks' removal as a primary site 8 operational representative to the test working group. 9 Mr. Meeks has no personal knowledge, for example, 10 of the reasons why Mr. Parks was subjected to needless and 11 unwarranted interrogation by Mr. Hoffman, a Bechtel 12 investigator from San Francisco. And Mr. Meeks had no {} 13 personal knowledge of the reasons why Mr. Arnold determined 14 that Mr. Parks had~so poisoned the atmosphere that he had to 15 'be barred or removed with pay from the site. 16 He was not there at the meeting of March 23rd, 17 wher'e Mr. Barton alleged to have stated that Mr. Parks ought 18 to be fired. He has no personal knowledge of Mr. -- of the 19 allegation that Mr. Kanga indicated at that same meeting 20 that morning, which was convened, as Mr. Hickey said, to 21 apprise the members there of the press conference. 22 Mr. Meeks doesn't know, and he cannot testify 23 that yes or no, Mr. Kanga said no, he cannot fire Mr. Parks 24 immediately. He is a protected employee or engaged in 25 protective conduct. But we should wait a while and then we ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-33M616
"~'O 10 10 163 ) BWH/bc 1 can get rid of him quietly. 2 Now, if you're going to take a deposition, at-3 most, we will get second-hand information. 4 Now, in reviewing and hearing further elaboration 5 from Mr. Hickey today to the reasons or some of the areas of 6 questioning that GPUN would seek to explore with Mr. Meeks, 7 the_ staff's view is that even that is unnecessary, but that 8 information, I guess our position would be it is almost 9 harmless because we are confident of what the answers would 10 be. 11 But, as far as producing information or assisting 12 GPUN to impeach or -.the credibility of Mr. Parks, I think (v~') 13 it is clear that it won't have that effect; that, in 14 reality, what we have here, again, is just an attempt and a 15 good faith attempt on the part of GPUN to question Mr. 16 Meeks, really to analyze or determine how he conducted his 17 investigation, how he went about conducting his 18 investigation, it is not really designed to yield 19 information, impeaching Mr. Parks' credibility, but to i 20 impeach the credibility of the OI, the Office of 21 Investigations, and the performance of their investigations 22 which resulted in the notice of violation. 23 And, on that basis, the staff has resisted this r's 24 disclosure. Now, we have attempted, and I believe we have (_) 25 made a thorough and good faith attempt to make available to ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
m r^^0 10 10 164 (_), - BWH/bc 1 GPUN'all of the documents in our possession and the 2 possession of OI that bear _on these matters. 3 We have an affidavit and I believe that affidavit i i 4 is satisfactory and sufficient and Mr. Meeks has stated 5 under oath that all of the documents that he generated, that 6 he possessed relating to his investigation of -- with 7 respect to Mr. Parks' allegation -- have been made-8 available. I 9 And to go beyond that, I believe, your Honor, is 10 unnecessary. -And I believe it is a burden on the staff. 11 And, two, I don't believe it is designed to yield { evidence relevant to this case, or certainly.not relevant, 12 13l admissible evidence in this proceeding. 14 And, three, I believe that it is certainly'a-15 backdoor attempt to reexamine the adequacy of the 16 investigation by the Office of Investigation into the 17 alleged discriminatory conduct of Mr. Parks. 18 And for.that reason, the staff would maintain 19 that this deposition is not necessary and it fails to meet ' 20 the standards under the regulations. - 21 And I appreciate your patience in letting the i 22 staff state its position, Mr. Presiding Officer. l 23 JUDGE SMITH: Mr. Hickey, would you like to 24 respond? l: 25 MR. HICKEY: I don't think I have more to add, l. ( /\\CEJFEDERAL REPORTERS, lNC. 202-347-3700 Nationwide Coverage' 800-336-6M6 + ,m- - -. _,,,,., -. - - - - -.... - ~,..., _.
r 10 10 10 165 + v -BWH/bc 1 your Honor, unless there are specific questions you would 2 like us to address. 3 JUDGE SMITH: I do want to say that I do 4 appreciate your point about the purpose of the deposition of 5 Mr. Meeks, if it is to demonstrate that OI did or did not 6 conduct an adequate investigation. 7 I think the fact that you are prepared to present 8 your case de novo before us renders irrelevant any 9 inadequacies of OI's investigation. 10 I'm not thinking about permitting deposition 11 along that line. And I would expect that Mr. Hickey might /'~'; 12 see the inconsistency if that is what his intent is between (/ i 13 having a hearing de novo and attacking the quality of the 14 investigation. 15 MR. HICKEY: Yes. I'm not interested in 16 attacking the quality of the investigation. I'm interested 17 in learning what the investigation disclosed. 18 JUDGE SMITH: With respect to Mr. Meeks' 19 affidavit, that he has turned over all of the documents and, 20 indeed, he searched for them and the general idea, I would 21 expect that that is the case. 22 And if that were the only thing involved, I 23 probably would not bother with the deposition. We could 24 take the affidavit on that. ('T \\_) 25 But the circumstances here are -- I am i ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6646
'^'O 10 10 166 L.) BWH/bc 1 particularly impressed by-the three interviews, one lasting 2 from 10 -- as little as 10 to as much as 24 hours producing 3 so little by way of report, it is in itself, as I stated, a 4 reasonable basis to allow GPUN to probe Mr. Meeks' memory. 5 And I'm not talking about just in a perjorative way. 6 I don't have any expectation that they will find 7 that Meeks was out to do GPU in and failed to include 8 exculpatory information or anything of that nature. But it 9 is a legitimate area of inquiry. 10 The men talked for a long time about the elements 11 of your notice of violation. They have legitimately raised (~') 12 the issue of_ credibility, and they have legitimately raised v 13 as a witness -- as a witness -- and they legitimately raise 14 it as a quality of an employee. 15 And it is their version of the case that they are 16 allowed to pursue. And I think we have to let them do it. 17 So, unless there is anything further, I will 18 authorize but we can go into limits or boundaries of Mr. 19 Meeks' inquiry: 20 Where does it go? Where does it stop? 21 MR. BERRY: We believe in part, Mr. Chairman, 22 that we have just exhausted the limits of the inquiry. 23 Counsel for GPUN has advanced several reasons in several r~'S 24 areas in which they would seek to question Mr. Meeks. U 25 The Jude has ruled on that and the staff will ACE FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coserage 800-336-M*6
'O 10 10 167 ( BWH/bc 1 live with it. 2 JUDGE SMITH: That is subject matter areas. Now 3 I'm talking about how far they can inquire -- if at all, why 4 didn't you do this, why didn't you do that. That's out. 5 And I'm not especially interested in Mr. Meeks' 6 opinion of Parks nor his opinion of Parks' demeanor or his 7 observations of it; only, in fact -- in fact, I rather wish 8 they would remove that. 9 But I can see why it is logically a question that 10 they might ask. If Meeks should say, well, I just did not 11 believe him, then the followup question is: ") 12 If you did not believe him, did you do anything
- v 13 about'it?
14 Not that his belief is at issue or even of 15 interest to me, but in discovery as an indicator, as a clue 16 of where to ask questions leading to factual answers. 17 MR. JOHNSON: Your Honor, if I may, if it is your 18 determination to allow the deposition of Mr. Meeks, we would 19 attempt to use your statements here or any guidance that you 20 provided here in the conduct of that deposition, in order to 21 stir it in the right direction. 22 And I would assume that in good faith, Mr. Hickey 23 would attempt to limit his inquiry to the areas that you (~] 24 have provided guidance on. And if he strays from that, I v../ 25 think it would be legitimate grounds for objection on the ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800 336-6M6
[" 10 10 10 168 \\ / WH/bc 1 part of this staff, if he does so. 2 JUDGE SMITH: I~ agree. 3 MR. HICKEY: May I address that, please? 4 It is one thing to say it is legitimate grounds 5 for objection on the part of the staff if the implication is 6 that the objection will include an instruction to the 7 witness not to respond to the questions. 8 I would like to have an opportunity to address 9 that because I did not attempt in addressing the question of 10 whether we should be allowed to depose Mr. Meeks, to 11 identify the entire scope of the deposition. 12 (')s And one of the comments that you just made, Judge u. 13 Smith, I don't agree with and would like to have an 14 opportunity to comment on. 15 You said, if I heard you correctly, that you did 16 not think it was appropriate to ask Mr. Meeks why didn't 17 _ hey-do this, why didn't they check this out, why didn't 18 they investigate this. 19 I think it is appropriate. And I will try to 20 suggest to you why I think believe it is. Let's take an 21 allegation from Mr. Parks' affidavit that accuses the 22 company of harrassing him because he had raised some 23 complaint. 24 There are a hundred examples. You could pick any (^) x.s 25 one. And I asked Mr. Meeks: Did you talk to Mr. Parks Ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 80(h336-6M6
0 10 10 169 BWil/bc 1 about that allegat. ion? Yes, I did. What did he say about 2 it? Well, I don't remember. Well, did you investigate the 3 claim that a document was changed or a procedure was 4 violated, or something unsafe was done? No, I did not. 5 I would like to say: Why did you not? Because j 6 the answer may be something that is not relevant -- I didn't 7 have enough time. My superior told me not to. The only 8 witness I knew of died. 9 There could be a thousand reasons, but there 10 might be some other reasons, like: 11 Mr. Parks told me that on reconsideration, he did 4 12 not really think that was accurate any more. / 13 14 15 16 17 18 19 20 21 22 23 24 25 ACE FEDERAL REPORTERS, INC. l[ 202-347-3700 Nationwide Coserage 800-336-6M6 )
F 8 41 11 170 UTH/bc 1 JUDGE SMITH: That is exactly my point. We are 2-not in dispute on that. 3 MR. HICKEY: But, you said, why didn't they 4 pursue that investigation -- 5 JUDGE SMITH: As such. As an objective. 6 MR. HICKEY: The reason I am responding to this 7 is I understood Mr. Johnson to be saying that the boundaries 8 of the deposition are going to be fixed by this colloquy 9 that we have just had. And I am saying that I did not 10 attempt to spell out in my papers all of the areas. 11 And I would hope, while of course I will be (~) 12 guided by the comments that you're making here today, I v 13-would not expect to be precluded at the deposition from -14 asking matters that normally flow from the questions and 15. answers that are asked, like what would happen at any 16 deposition. 17 JUDGE SMITH: I agree. And the difficulty is 18 deposing someone is as much an art as anything else. You 19 have to take the trail where it leads. 20 And I can see why both areas might take you down 21 a factual trail. I'm only saying that, to the extent you go 22 down the trail as to what was your view of his demeanor and 23 what did you think and why did you or why did you not go t'~x 24 this way, as such, as a direction, I don't care what the %-] 25 answer is. ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6M6 L
5 T~18 41 11 171 V BWH/bc l- ~ I don't care if OI did a really rotten job or a 2 . superlative job. It doesn't matter. It is irrelevant. 3 But you're asking question about why he did not 4 follow up. The answer might be that he is a liar, too, and 5-it would not be worthwhile. That is certainly something you 6 would want to inquire into.. 7 But, given these guidelines, if the direction of r 8-your questioning.goes into an area of jumping on the quality 9 of the investigation, then.you're going beyond it. 10 But, since you agree that the quality of the 11 investigation is irrelevant in the case, as you do,- then I 12 don't see that that is going to be'a problem. l{ } ' 13 MR. HICKEY: I don't either. 14 MR. BERRY: With the colloquy of all of the 15-parties here.today and the benefit of your guidance, I think. 16 we can work out or work through anything that comes up in 17-the deposition. 18 JUDGE SMITH: I hate to put fixed guidelines on s 19 it. You'just cannot do that. 20 MR. BERRY: The staff understands that. We have 21 taken a number of depositions in this case. And we 22 understand that sometimes you have to follow the trail. 23 But I think it is well for your Honor to point 24 out that if the objective, if the only -- if the objective 25 of the inquiry is some inpermissible subject matter, then /\\CE FEDERAL REPORTERS, INC. i 202-347 3700 Nationwide Coverage 800-336-6M6
T^^8 41 11 172 ~Lj BWII/bc l-that certainly is beyond the bounds. 2 And to the extent that GPUN would have a good 3 faith reason consistent with the guidance in the views 4 expressed today, the staff will not object to that. 5 JUDGE SMITH: I do not need to give the parties 6 any further guidance. I will go ahead and sign the i 7 subpoena. I will ask you on that: 8 Do you want me to -- do you want me to defer the 9 effective date? I can see that you might regard this as an 10 important policy issue. Do you want me to defer the signing 11 of the subpoena until you get a chance to appeal it? (~3 12 Or the effective date of it? Gi 13 MR. JOHNSON: Yes. I would apreciate it if you 14 would delay it until we can speak to, particularly to the 15 Director of OI about his determination to make the 16 availability -- to make Mr. Meeks available. 17 And also the date. 18 MR. HICKEY: In terms of a date that is 19 convenient for the witness and counsel, I would be happy to 20 work that out with Mr. Johnson. 21 JUDGE SMITH: Why don't I sign the subpoena -- 22 MR. HICKEY: Date to be agreed by the parties. 23 JUDGE SMITH: Date to be agreed. And that would ("] 24 be long enough for you to consult with Mr. Hayes and even v 25 make a determination whether you wanted to appeal -- we can Ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 804336-6M6 e
~ ( L T"_8 41 11 173 () BWH/bc' l' leave it blank. 2 MR. JOHNSON: That would certainly take care of 1 3 that problem.' Thank you. 4 JUDGE SMITH: We are moving then to -- what_is 5 the final line that staff's motion - we have already covered 6 the Department of Labor and we are not at the staff's motion 7-for protective order, which is also the third motion to 8 compel. 9 MR. JOHNSON: The second motion to compel, your-10 Honor, deals with the policies of OI investigations. _That 11 is independent, I think, of the third motion to compel. 12 JUDGE SMITH: That's right. That I am inclined (} 13 to turn down flat. 14 MR. HICKEY: Can I inquire why? 15 JUDGE SMITH: As soon as I find my papers. I 16 thought that would raise some curiosity. 17 Let's assume that Mr. Meeks threw away his notes. ~ 18 This is the policy of note retention -- 19 MR. HICKEY: I was going to say that I think the 20 confidentiality issue is no longer really -- the first part 21 I am willing to withdraw. I put it in because sometimes the 22-argument is made that they cannot produce documents or notes 23 because of confidentiality obligations. 24 But I have not heard that argument made. So I am 25 prepared to withdraw the request for the policies on ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800 336-6646
a + ' ' ' 174 k,}84111 ~BWH/bc-. 1 confidentiality. 2-Then the focus is on the document retention. 3 JUDGE SMITH: Do.you have any extraneous' reasons 4 to believe that Mr. Meeks threw away notes to frustrate 5-further inquiry? 6 MR. HICKEY:- Do I have some independent. evidence, 7 do you mean? 8-JUDGE SMITH: Yes. 9 MR. HICKEY: No, I do not. I do not know why he 10 threw them away other than what he said in his affidavit. -11 JUDGE SMITH: And he said he simply was not 12 required to keep them.. 13 MR. HICKEY: He said he was not required to keep 14 them and that they were all contained in the statement, I. 15 believe. 16 JUDGE SMITH: This is the one area where, unless 17 you have some basis to challenge'his belief on that, his 18 credibility on that, it is burdensome and it is not 19 productive. 20 I want to hear your arguments that you may be 21 entitled to some relief. Let's say -- give me the worst 22 case. Let's assume that he said: -23 By golly, you know, they are not going to trip me 24 up. I'm going to stand with these damned notes and get rid 25 of them right now. ace. FEDERAL REPORTERS, INC. 3)2-347-3700 Nationwide Coserage 800-336-6M6
8-41 11: 175 .BWH/bc 1. MR. HICKEY: Or tx) make it worse, they will not 2 trip Mr. Parks up because Mr. Parks' lawyer said I do not 3 want these notes around, people use them to cross-examine. 4 I do not want any of them. S' JUDGE SMITH: That is a pretty bad case. 6 MR. HICKEY: That is the worst case. 7 JUDGE SMITH: This is the worst case. And let's 8 assume this is the case. Then where do we go from there? 9 MR. HICKEY: We have suggested.in our papers some 10 case law that indicates that if there were -- I want to 11 characterize what we have just hypothecized as'a bad faith 12 destruction of evidence. I think that is fair that if there 13 were a bad.fa'ith destruction of evidence, there are certain 14 potential remedies that the court would have to consider. 15 One of them is -- and you referred to this this 16 . morning with the Labor Department -- there is in law of 17 evidence a presumption that may be invoked against a witness 10 who has destroyed evidence that was in his control. 19 In addition, the documents that do exist, the 20 statements that do exist, I expect may well be used in the 21 hearing or attempted to be used in the hearing for one of 22 two reasons: 23 Either because Mr. Meeks or Mr. Parks would use 24 them to refresh their recollections -- it is four years ago 25 and they gave a statement within a month or so of the events ACE-FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 800-336-6M6
r ~'8 41 11 176 m,- BWH/bc 1 and it is not unlikely that they will say my recollection is 2 completely clear, but if I could see my statement of what I 3 said then, that may help me. And I would like to use it to 4 refresh my recollection. 5 In the event that they do that under normal 6 eminence law and the Federal Rules of Evidence, the witness 7 may be cross-examined on the statement that he uses to 8 refresh his recollection. 9 That includes the circumstances of the making of 10 the statement, the document that he uses to refresh, how it 11 came to be and its accuracy. (~T, 12 Similarly, if the witness says I have no x_/ 13 recollection any more. I'm sorry. It is just too long, but 14 I made a record back then, and the attempt is made to 15 introduce the document as the witness' past recollection 16 i recorded, another typical evidentiary use of documents, it 17 must be shown that the document was -- Federal Rule of 18 Evidence 803, quote: 19 " Adopted by the witness when the matter was fresh 20 in his knowledge and reflected the knowledge that he had 21 correctly." 22 On cross-examination of the witness, I think it 23 will be appropriate to inquire how soon the document was 'N 24 made after the events in question; what repeating or (O 25 reporting of the events had there been; namely, the first ace FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coserage 801336-6M6
s 8141 11 177 TLWH/bc. 1 . interview of Mr. Meeks, whether there was any comparison of 2 the notes that were taken'of the first interview, with the 3 final ~ statement. And the circumstances under which the 4 first notes were destroyed. 5 It could go either way. Mr. Parks could say: I 6 got Mr. Meeks' notes. I got Mr. Meeks' draft statement that-7 he wrote up for me. I went over them line by line. And 8 overy word from the first was in the second. So I said no 9 reason-to keep the first. And I said -- I told Meeks it was 10 all right with him if he threw them away. 11 That is one possible answer. But the realm of-jy 12 possibilities go well-beyond that. G 13 If there was not a comparison of the original l'4 notes with the final draft statement which got signed two 15 months later, then there is grounds to question the accuracy 16 of the final statement. 17 It goes to the weight of the final statement. 18 JUDGE SMITH: Everything you said with one little 19 exception, I agree. I recognize the potential value for 20 contemporaneous notes. No question. 21. MR. HICKEY: So the circumstances in which those 22 notes were destroyed -- 23 JUDGE SMITH: Now here is where -- 24 MR. HICKEY: -- are relevant because they may s-i 25-have been destroyed under circumstances that do not affect ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646 L
t " ~'8 41 11 178 BWH/bc 1 the weight or value of the final document that we do have, 2 or they'may have been destroyed under circumstances that do 3 affect. If the answer is -- let me put it this way. I take 4 it, we could ask the witness: 5 Were there notes taken of your first interview of 6 Mr. Meeks? 7 Answer: Yes. 8 How many? Twenty-five pages. 9 JUDGE SMITH: Did you ever read the notes? 10 MR. HICKEY: Did you ever read them? Maybe yes, 11 maybe no. Let's assume he says yes. When did you read ('~T 12 them? The moment we were done, and I said I wanted to \\._/ 13 review them. 14 Did you make any changes in the notes? Yes. No. 15 I don't know what he would say. When did you see the notes 16 again? I never did see them again. Oh? Well, Mr. Meeks, 17 what did you do with the notes af ter Mr. Parks reviewed the 18 notes and made notes on them, or corrected them or changed 19 them, or whatever? 20 At some point, Meeks is going to say: I 21 discarded them. He has told us that. When did you discard 22 them, Mr. Meeks? After I got the final statement back from 23 Mr. Parks and compared them. (~3 24 No. Before you sent the final statement to Mr. LJ 25 Parks? 1 don't know what his answers are going to be. But ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6M6
h J'i8 41-11 179 L). EEWH/bc 1 I.am speculating that if the notes were not compared with 2 the final statement, then the final statement has something 3' lacking about.it. And the reason why it was not done is 4 relevant to the weight of-those documents because it may 5 'have-been unnecessary for some reason, or it may have been 6 for some other reason that would be significant. 7 And I think that is standard cross-examination. 8 JUDGE SMITH: I do not question-any of that. I 9 don't question anything that if those notes existed, that 10 they could have value. 11 But we are dealing with the fact that they don't 12 exist. 13 MR. HICKEY: And why don't they exist? 14 JUDGE SMITH: That is because Mr. Meeks, as he . 15 ~ says -- 16 MR. HICKEY: Threw them away. And why did he 17 throw them away? 18 JUDGE SMITH: You want to inquire: Did you throw . 19 ~ them away -- you threw them away because you were happy with 20 the statement? You threw them away because they were 21 inadequate. In fact, the statements were more truthful than 22 the notes because there's better information. I remember it 23 and everything else. Or, whatever. ("s{ 24 But -- look how far we've moved from the hearing. LJ 25 In the first place, they go to the reliability of a ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6M6
~~'8 41 11 180 ~,) BWH/bc 1 statement from which they were produced. 2 MR. HICKEY: They go to the reliability of the 3 statement we have, yes. 4 JUDGE SMITH: And that being the OI report. 5 MR. HICKEY: Mr. Parks' signed statement under 6 oath. 7 JUDGE SMITH: So, then you want to use those to 8 confirm or impeach or attack the signed statement under 9 oath, but the fact 10 Mr. Parks is going to be here as an { 10 eyeball witness. 11 And so you want to double up. You want to have (v~') 12 the signed statement under oath and you want to attack that. 13 And then you want to go back -- you're going back very, very 14 far into the roots of facts. 15 And it becomes very, very tenuous when, indeed, 16 they just are not in existence any more. 17 MR. HICKEY: But it seems to me the question of 18 why they are not in existence and wh,en they were destroyed, 19 especially in light of the fact that near contemporaneous 20 interviews of other witnesses taken by Mr. Meeks at the same 21 time have notes existing about them. 22 And in light of the fact -- 23 JUDGE SMITH: Now you are giving me some reason (~} 24 to believe that maybe Mr. Meeks is not to be believed in his 25 affidavit. ACE-FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 800-3346M6
T8 41 11 181 L_) EWH/bc 1 MR. HICKEY: I don't suggest -- I believe he 2 discarded them. I want to know why he discarded them. 3 JUDGE SMITH: I'm not suggesting that you cannot 4 ask him circumstances about the notes. That he had notes. 5 And do you have any memory of the notes that you don't have 6 about Parks. All that. I'm not suggesting it is wrong. 7 I'm not suggesting that you cannot ask him why he threw them 8 away or when he threw them away. Nothing like that. 9 I'm suggesting that go down the trail into the 10 internal procedures of the Commission and to try to analyze 11 his notes as to whether they complied with the list (~T 12 procedures is not very productive. And that is protected C. ' 13 information. 14 And that is, as Mr. Berry or Mr. Johnson pointed 15 out, that is under Part 9, the Commission's rather strange 16 interpretation of the exemption on Part 2, I believe, fo the 17' Freedom of Information Act, the second exemption. 18 19 20 21 22 23. (~T 24 'w) 25 ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6M6
r ?8840'12 12-182
- - 7%.
l' Under 2.790, the Rules of' Practice. version of the ( jburi 2 exemption from the Freedom of Information.Act, we have 3 Exemption No. 2, which says matters-related solely to the. -4. int'ernal personnel rules.and practices-of the Commission. 5 Well, I guess, reading that fresh, I would have 6 found that related to people, but if you can read the rules 7 -- the Commission has interpreted that itself, what it 8 means, back in Part 9. 9 It is quoted someplacefin one of Staff's briefs-10 that they define this as being.9.5 exemptions. They are 11 talking about exemptions, and under 2.1 they have defined 12 the operating rules, guidelines, manuals on internal /~T (_ L 13E procedure, schedules, and methods' utilized by NRC 14 inspectors, investigators, auditors, and examiners. 15 And-the Staff argues that the retention or .16~ 'nonretention -- I think you do, don't you -- of notes falls l 17 .into that exemption. 18 Now, we are going back again to, indeed, that 19 exemption is not absolute, that it is a privilege but it is 20 not absolute. It can be set aside if you can demonstrate I 21 the need for it. 22 MR. BERRY: Mr. l 23 MR. HICKEY: I have two comments I would like to 24 make; first of all, as to the meaning of 2.7, Exemption 2.
- _ l,/
25 The Court of Appeals of the District of Columbia Circuit, m I i i ace FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 800-336-6646
a L8840 12 12 183 bbur li Bonn against Rosen, the Senate Report. I am' reading page-2 '1140 and 1141. 3 "The Senate Report on the FOI 4 Exemption 2 says Exemption 2 1 5 relates only to'the internal-6; . personnel rules and. practices 7 of an agency. Examples of these 8 may be rules as to personnel's 9 .use of parking facilities or 10 regulation of lunch hours, 11 statements of policy as to sick- -12 ' leave,'and-the like. -13 "The House Report, on the other 14 ' hand, declared that it includes 15_ operating rules, guidelines and 16 manuals of' procedure for government l'7 investigators," so on and so on. 18 The Court continues: 19 " Virtually all of the courts that 20 have considered the' conflict 21 between the two reports have held 22 that the Senate Report most 23 accurately reflects the intent of 24 Congress, and the Exemption 2 () 25 exempts from disclosure only ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6M6
y 1. .w m A = 8840:12:12 184 ^ bur. l1- . routine housekeeping matters in 2 which it can be presumed the 3 public lacks any substantial - 4 interest."' '5 hnd we add-to that that the policy ~has been 6 disclosed in two ways. 7 .First of a.ll, it has been published by OI as it 8 was'in approximately-1982, and it has been disclosed in the 9 affidavit by Mr. Meeks. He says: 10 "Under OI policy then in effect: 111- .as well-as NRC policy generally, 12 retention of. investigator's' notes '("g. - (_/ 13 was at the discretion of the 14' investigator. Then-subsequent to-15 the investigation OI policy on the. 16 retention of investigator notes. 17-has been changed to require'the 18 investigator to place his or her 19 notes in the case trial." l 20 We should see what the policy specifically says 21 and whether it gives any guidance to the discretion of the 22 investigator, but if Mr. Meeks says in response to a 23 question why did you discard your notes, well, it was p 24 discretionary with me to do so under the OI policy, then I () 25 would like to see what the OI policy says and whether it ACE. FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coserage 800-336-6646
rm -- 8840 12 121 185 bbur-1 gives guidelines for exercising that discretion. .2-JUDGE SMITH: This policy has been published? ~ 3 MR. HICKEY: There are two things we cite. There 4 are the' March 1983 OI policies. There are about 24 of them 5 relating to a variety of different things. 'They are cited 6 on page 44 of our memorandum of April 6th, approved by-the 7 Commission March 4, 1983, and it talks about: 8 " Investigators shall preserve 9 evidence relevant to investigations." 10 JUDGE SMITH: That is the new policies. 11 MR. HICKEY: March '83, just before this investigation began. 12 /G ~k_) 13 . JUDGE SMITH: That would have been a policy that 14 would have covered it. 15 MR. HICKEY: Yes, and another policy, No. 20, 16 states: 17 " Investigators will thoroughly 18 and accurately document their 19 investigative efforts and t-20 substantive information developed 21 during the investigation." r 22 Now, I don't know what the policy is for certain 23 that Mr. Meeks is referring to in his affidavit when he says 24 the policy gave discretion to the investigators at the time. (^j \\m) 25 But it does not seem to me that it is very secret, since he ACE FEDERAL REPORTERS, INC. 202-347-370v Nationwide Coverage 800-336-6M6
8840~12'12 186 kbur-al has' disclosed what th'e policy was and.he admits that it is 2 no longer in effect. 3 JUDGE SMITH: To the extent it is not. secret, 4 then that is the same extent-you do not have to inquire into 5 it. 6 MR. HICKEY: Why can't I inquire? 7 JUDGE SMITH: You have shaken the discovery tree 8 so thoroughly and the Staff has complained about burden and 9 we have gone very, very far in trying to get anything that .1 -0 we think can possibly be useful to you. 11 I think the Staff's attitude has been j 12 constructive. My natural inclination is to go that way, but /N, (__/ 13 I just cannot see how after the many links-of-causation that 14 _you have to go-on before the OI policy has an'; relevance to 15 me sitting here and deciding this case -- are so many that 16 all it is, is -- it adds to the stress of the case and, 17 furthermore, although I am inclined to agree with you, the 18 Commission's version of Exemption 2, which seems to follow 19 the House version, is not the better one. It is 20 nevertheless the one which I am obliged to follow, and to me 21 that almost puts an end to it right there unless you can 22 show a need -- and it is the need that I cannot identify. 23 MR. HICKEY: I am trying to be sensitive to the 24 burdens on the Staff and not to impose improper ones or i (~) (_/ 25 unnecessary ones. I have to say that the production of one ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 8tXb336-6M6
M -8840L12 12 187 bur .li ' policy'does not strike me as falling into that category, but 2. -beyondithat Tn). ere hypothesizing at the beginning of this w 3 discussion what if there is.a reason'that is not an 4 appropriate reason, what if the policy ~says notes will be ~ 5 discarded only after some steps have been taken in 6 comparison with final statements or review by superiors or 7 whatever. 8 And Mr. Meeks did not follow the policy and did 9 not-do that. 10 If at the hearing of this case the absence of 11 those notes makes it difficult for GPUN to fairly address a 12 portion of Mr. Parks' testimony, I would suggest, your 13: A/- 13 Honor, that we should not-be penalized because Mr. Meeks did m 14 not follow-his office policies and therefore destroyed '15 evidence that otherwise would have been available to us. 16' But I cannot say that unless I see what the 17 policy is and whether Mr. Meeks complied with it. 18 I don't think-I have more to say on the matter 19 than-that. I 20 JUDGE SMITH: You want documents in advance. I i 21 think that the documents that you have are sufficient, and.I i 22 am not ruling that you cannot inquire as to the reasons for 23 taking the notes. You can even ask him to explain which ' 24 policy provision it came under, or whatever. () 25 MR. HICKEY: You say the reason for taking the I ACE-FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 800-336-6646 l
.8840.12 12. 188 hbur 'l -notes? You mean the reason for discarding the notes? 2 JUDGE SMITH: For discarding the. notes. That is 3 appropriate.- Those could be very' relevant reasons, but I am 4 simply'notLgoing to bother policies, procedures, memoranda, 5 and other types of practice guides in existence. It is 6 burdensome, with just a wisp of possible benefit. 7 And I don't want to second-guess your judgment of 8 what you need in your case, but this, I think you are iust' 9 going too far. 10 MR. HICKEY: Very well. 11 JUDGE SMITH: Now, let's go -- now, we are ready 12 for the motion for a protective order, and this is the 13 " mystery man" issue, and this is one that has caused me some 14 difficulty. 15 I~can comment a little bit about it before we get 16 into it. 17 When I first read the Staff's motion for a 18 protective order, one of the grounds they gave was it is 19 annoying.- That is an unusual ground and not one that you 20 find in the Rules of Practice, or that you find annoying, 21 but when I started to read them, I could see that they are 22 annoying. You know, they just go on and on and on with 23 them, and the thing about them is they are crafted in such a 24 way that they should be very, very careful. ( 25 You are assuming that the party to whom the 14CE. FEDERAL REPORTERS, INC. 2024 47-3700 Nationwide Coverage 800-336-6616 ._ ~
8840~-12 12 189 kbur-1 interrogatories are addressed is someone who is going to 2 figure out a way to. avoid responses to discovery. It is 3 very careful.. That is exactly what you should do in a civil ~ 4 litigation or a private litigation or in a hostile 5 litigation. 6 .But this is not the situation here. The Staff 7 sometimes takes some prodding, but the Staff has really 8 disgorged piles of information, a lot of information, and I 9 think that if.you had restrained your interrogatory 10 responses perhaps you would not have induced the response 11 .from Mr. Johnson that it is just downright annoying. I 12 could add exasperating. C) (_ 13 Be that as it may, I think that you should be 4 14 able to work out something. I think you have a right to 15 know how -- where did Exhibit A come from. But you don't 16 have to know all those things about it, who all saw it -- 17 let me find that. 18 You want to know -- in the first place, you want 19 to identify all persons who participated in drafting. I 20 don't know if they would know about that. 21 MR. HICKEY: It would be easy to answer if they 22 don't. 23 JUDGE SMITH: And here is where we get into 24 problems. E, when was the draft affidavit provided to NRC l ( 25 and by whom? i ACE. FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 800 336-6M6
~8840 12 12 190 hMnne 1 That is a very good one. I have no trouble with h 2 that.. That is probably what it should have been. 3 And to whom at.the NRC was the draft affidavit 4 given?- Who prepared it, how they got it, and to whom they-5 gave it to? 6 That is all legitimate. 7 And then we get: Identify'and describe in. detail '8 all written or oral communications to NRC personnel related 9 to the provisions of the draft affidavit to the NRC. 10 That is a big burden. 11 To whom at NRC were copies of the draft affidavit 12 distributed? O !s.) 13 -Xerox machines. There are xerox machines on 14 every floor of this building. To trail something like that 15 is absolutely impossible. 16 Was the draft produced or provided to NRC in any 17 other form or version? If so, identify each such document. 18 Well, I don't know what kind of a burden that can 19 be, but I can see that it could be a burden. 20 What I am getting to is I think you are entitled 21 to know where did that -- who prepared that draft and what 22 it is all about. But you unnecessarily have burdened the 23 Staff. You have annoyed them. That is exactly what you 24 did. You annoyed them. p/ 25 MR. HICKEY: I can tell that I did, and I am s_ i ace FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coserage 800-336-6M6 _~
8840 12'12: 191 hbur -1 sorry, and it certainly was not my purpose. 2 JUDGE' SMITH:_.And I think it would have annoyed 3 -me, too, you know. 4 So what can be worked-out here? You_know, can't 5 you sit down across the table and say, where did you get 6 this? Tell us about this. Tell us about this draft. Give 7 us a narrative explanation of what this draft -- ~ .R. HICKEY: I would be glad to do_that with the 8 M 9 Staff. My impression from the response which the 10 interrogatories produced was not the question about the 11 copies being distributed was burdensome or a particular area 1:2 of it was burdensome, but we don't want to talk about it at 4
- n..
(_) 13 all in any respect. 14 That suggested to me that their reaction was that t 15 the whole subject was off bounds, off limits, and I did not 16 agree with that. So I did not think it would be likely to 17 be fruitful to pursue a process of negotiation, and I 18 gathered they did not think so either since they did not -19 initiate one. 20 JUDGE SMITH: I think the allegations of the 21 " mystery man" -- about the " mystery man" have been put into 22 issue by GPU in their defense as they see it, and I think 23 they are entitled to some discovery on it. 24 Is he characterizing your position correctly, ) 25 that you have taken a position, go away, you are not 1 ACE FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coserage 800-336-6M6
\\ -- 8 8 4 0' 1 2 ' 1 2 192 keur l' entitled-to that'information? 2 MR. JOHNSON: I would take the position that the 3 Judge's characterized-the Staff's position adequately. All 4 of the things we said about their' interrogatories and 5 document-requests are true, and it seems to me the extent 6 that there might be some legitimate areas of inquiry, they. 7 so larded their document request that it was extremely 8 repressive, and that is why I sought the protection of the 9 Judge. 10 It seems to me that if - to the extent that i 11 there may be some legitimate areas of inquiry, given the 12 Judge's guidance here, that these questions -- to the extent ( 13 that we do have information on these subjects, it is likely 14 that Mr. Meeks is the person who has this information, and 15 they are going to -- you are going to order the deposition 16 of Mr.-Meeks, and I believe that he can furnish adequate 17 information about the circumstances under which he received 18 these documents and to what use they were put, and I think 19 that should take care of their legitimate interests. 20 The large part of this request would require the 21 Staff to go through thousands and thousands of documents 22 that we have already provided to answer questions of very 23 little utility. 24 JUDGE SMITH: That was my reaction, that it was a ( 25 burden and it could have been handled in a crisper way. 1 ACE. FEDERAL REPORTERS, INC. I 202-347 3700 Nationwide Coverage 800-3346M6
~ 8840 13 13 193 hibur 1 Does that satisfy you? 2 MR. HICKEY: I don't know where that leaves us. 3 I would like to have answers to the first six subparts of l 4 the interrogatories that relate to each document because I 5 heard the Staff say earlier that it is not clear that there 6 will be an agreement to the deposition of Mr. Meeks even 7 though your Honor orders it. 8 If Mr. Meeks is going to be deposed, I would 9 still like to have this information to prepare for the 10 depositions. 11 JUDGE SMITH: My reaction when I saw this was it 12 was a burdensome, unrestrained interrogatory request, and I 13 just did not feel like sitting down and fashioning a 14 reasonable one for you. My inclination was if you cannot do 15 it, you overstep your bounds, it is burdensome, that is your 16 problem. 17 But now let's fashion a more reasonable one. 18 MR. HICKEY: That is what I will try to do. 19 JUDGE SMITH: Okay. 20 MR. HICKEY: I thought you had gotten up through 21 pages 7 and 8. I thought I heard you concur that Items A, 22 B, C, D, E and F -- I 23 JUDGE SMITH: Let's go down here. 24 Item A. I don't know how NRC people would know, 25 but you say if they don't know, that is fine. I 26 But what I am talking about, how many people does ACE. FEDERAL REPORTERS, INC. 202 347-370) Nationwide Cmerage 8(xb33MM6
8840 13 13 194 hibur 1 he have to survey before he can come up with the answer? 2 MR. JOHNSON: That is my point, your Honor. 3 MR. HICKEY: Like any other interrogatory, you 4 make a reasonable search. If Mr. Meeks is the only guy who 5 had this document, then you probably ask Mr. Meeks. 6 MR. JOHNSON: It seems to me that the way they 7 are going about this, it is designed to place an undue 8 burden. At the time this was placed before the Staff, we 9 were attempting to do depositions and a lot of other things 10 in the form of discovery. It seemed to me to be dilatory 11 and designed to distract the Staff from the conduct of its 12 own affirmative discovery, and therefore I sought 13 protection. 14 It seems to me to the extent that Mr. Meeks is 15 unable to answer the questions that they may have about the 16 preparation of the documents, then they might be able to ask 17 further information. But it is my position that Mr. Meeks 18 will be able to answer the bulk of the legitimate inquiries 19 about the circumstances in which the Staff obtained the 20 information, the four documents, and that that will be 21 adequate discovery. 22 I don't think that we need to have more 23 interrogatories being propounded. 24 JUDGE SMITH: It is your impression that this is l 25 something that was -- that Mr. Meeks is the NRC employee who 26 is most likely to have the answers to these questions? ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Cmerage 800-33MM6
8840 13 13 195 l kbur 1 MR. JOHNSON: That is correct, your Honor, and if 2 we are required to do an agencywide search, it seems to be 3 unduly burdensome. 4 MR. HICKEY: If Mr. Meeks is going to have the 5 answers, that is one thing. I would like to have the 6 documents that relate to the question so that we can ask Mr. 7 Meeks about the documents. 8 JUDGE SMITH: Let's see what documents you are 9 alluding to.- Where are those? 10 MR. HICKEY: There are a couple. I don't know 11 for sure, but H asks if there are related documents 12 requestingthe affidavit or transmitting the affidavit, 13 written communications to NRC personnel relating to 14 providing the affidavit. 15 JUDGE SMITH: Would this be suitable, if we did. 16 it in a more relaxed way, if we put these questions to Mr. 17 Meeks, ask his cooperation? And I can see from his 18 affidavit that-he worked very hard. He came back here to 19 headquarters to make another search of the files. 20 Is that correct? Am I remembering that 21 correctly? 22 MR. JOHNSON: Yes, sir. 23 JUDGE SMITH: And why don't we put the questions 24 in advance to Mr. Meeks and ask his cooperation, as he has () 25 given it before, to try and resolve the mystery of the 26 " mystery man" affidavit to the extent that he can? ACE FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coverage 800-3364 486
8840 13 13 196 bbur 1 If he has documents, he knows where documents-2 are, let's see if he cannot provide them. 3 MR. HICKEY: That would be agreeable to us. 4 MR. JOHNSON: _ am sorry. Is what you are 5 proposing that at the deposition of Mr. 6 JUDGE SMITH: No, in advance these questions be 7 sent out to Mr. Meeks. 8 MR. JOHNSON: I would prefer -- because I believe 9 that the way in which these questions are couched goes 10 beyond the scope of what you just said. 11 JUDGE SMITH: Not all of them. I am not talking 12 about all of them. m w 13 MR. JOHNSON: I would prepared to contact Mr. 14 Meeks and ask him if he has documents that were not 15 disclosed that are responsive or if he can identify any 16 documents that have not been identified with regard to these 17 four matters that are raised in these inquiries, in these 18 interrogatories. 19 I have no problem doing that. I think it can be 20 done on an informal basis without unduly burdening the 21 Staff. 22 JUDGE SMITH: Normally, Mr. Meeks would come out 23 here without any obligation to be prepared for the 24 deposition. He can just come here and be deposed. ( I 25 MR. JOHNSON: Yes. But we have not had a chance 26 to approach this question, but Mr. Meeks apparently is ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationw Je Coserage 800-336W46
8840 13 13 197 Nbur 1 leaving the agency in a few days, and ha is going to the 2 Department of Energy. I have just got a note to this effect 3 when I returned to my office this morning from Long Island, 4 and we will have to move quickly to arrange a deposition. 5 MR. HICKEY: He does not have to be deposed 6 before he leaves the agency. 7 MR. JOHNSON: I do not believe it is necessary 8 for Mr. Meeks to come back yet another time, and I am not 9 sure it is feasible even. He has twice come back from 10 California to search all of the documents and find all of 11 the documents with respect to Mr. Parks, including all of 12 the documents in the agency's possession, in OI's possession 13 about the " mystery man," and we have produced them. 14 It seems to me it is burdensome, annoying, 15 unnecessary to have him go through those again. It seems to 16 me the best and most fruitful way to approach the subject is 17 to ask Mr. Meeks directly is there anything else? 18 MR. HICKEY: I did not understand you to be 19 suggesting that Mr. Meeks come back here, and I did not 20 propose that either, but I understood you to suggest that 21 Mr. Johnson send Mr. Meeks the appropriate portions of these 22 interrogatories. 23 JUDGE SMITH: Yes. 24 MR. HICKEY: And ask Mr. Meeks do you know 25 anything about them by telephone, not by bringing him back 26 here -- are you able to identify any documents? Are you ACE FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Cmerage R O 316 4 46
8840 13 13 198 llkJbur 1 aware of any documents? What files? Is there a file that I 2 ought to look at? 3 MR. JOHNSON: I have no problem with that. 4 MR. HICKEY: I thought that is what the Judge was 5 suggesting. 6 JUDGE SMITH: So if you agree with that, we can 7 allow all of the questions to remain as long as it is Mr. 8 Meeks and to the best of his ability he answers them. I do 9 not think that they are all necessary. 10 MR. JOHNSON: I am not prepared at this point to 11 agree to each one of the questions here. I think a good 12 number of them are completely unnecessary. 13 JUDGE SMITH: They are all theoretically useful, 14 all the way down through J. Was a draft affidavit produced? 15 Well, what I would prefer would be to say, Mr. 16 Meeks, sit down and tell us about this thing. When did you 17 get -- give me a narrative explanation. You are an 18 experienced investigator. Give us a narrative explanation 19 of what this affidavit is. 20 But I do not get the impression that they will be 21 forthcoming. So -- 22 MR. JOHNSON: I don't understand why he cannot be 23 asked this question at the deposition. 24 JUDGE SMITH: Because he will not be prepared for 26 MR. JOHNSON: He has already received these ACE FEDERAI. REPORTERS, INC. 202-347 370) Nationwide Coserage 80)-33M646
'8840-13 13 199 I kbur l' questions, and as I said, I will send these questions to him 2 and ask him to be prepared to address them. 3 JUDGE SMITH: Fine. Then we have resolved that 4 one. S MR. HICKEY: You indicated that should be 6 advanced before the deposition. 7 JUDGE SMITH: Well, gentlemen, you are. cutting 8 things too fine. 9 MR. HICKEY: I would like to have them addressed, 10 and if he cannot address them before the deposition or Mr. 11 Johnson cannot provide them before the deposition, I will 12 take it at the deposition. ' O) (_ 13 JUDGE SMITH: This is an area where I am 14 disappointed that there is not better cooperation. I do not 15 understand why. I know you were busy on other cases. I do 16 not understand why it may not have been appropriate to call' 17 up Mr. Hickey and say, you know, this is annoying. You 18 know, it is a big burden. I don't think you need all of 19 this. 20 Somewhere along the line communication between 21 the two parties stopped. 22 MR. JOHNSON: That is exactly right. That is 23 exactly right, and I think this request was made in bad 24 faith. ( 25 JUDGE SMITH: That is a big charge. 26 MR. HICKEY: That is strong. ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6M6
8840 13 13 200 lhkbur 1 JUDGE SMITH: This is a common phenomenon. Cases 2 develop their own life and people become determined that 3 they are going to go.all the way and make sure they have 4
- everything-and objectivity is lost, and I would ask you 5
gentlemen to get back into it. 6 You started out cooperative. The case.is not 7 done yet. There is going to be a lot of work for all of us. 8 There is no need for this type of problem. I don't think it-9 is in bad faith,.but it would be annoying to'me, too. I 10 think'it is an excess of caution. 11 MR. JOHNSON: I did not mean to say in general ' 12 - that Mr. Hickey and his firm is operating in bad faith. ) 13 What I am trying to describe is my reaction at the time and 14 why I did not feel that it would be appropriate for me to 15 respond the way.you suggested. 16 That is really what I was addressing. 17 JUDGE SMITH: I will go back to this. This is an 18 interrogatory that was not sent to somebody who has already 19 established a track record of cooperating. This is sent to 20 somebody that you would expect would try to avoid it, and 1 21 you should have been annoyed. 22 And we have now cleared the air on it, and we 23 will go ahead. 24 MR. JOHNSON: Fine. ) 25 JUDGE SMITH: How about the Exhibit C7 What do 26 you want to know about that one? Ace FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage m)-336-6M6
8840 13 13 201 bbur 1 MR. HICKEY: The documents really are'three -- 2 JUDGE. SMITH: Exhibit B is what I meant. 3 MR. HICKEY: My belief is that the three 4 documents that are Exhibit A, B, and C are pretty much of a 5' piece'; that is, they are all documents -- I could be wrong, 6 but my belief is that Mr. Parks is involved with Exhibit B. 7 JUDGE SMITH: Do you think he did that one? 8 MR. HICKEY: I think so, but I don't know for 9 sure. 10 JUDGE SMITH: So you want to ask Mr. Meeks if he 11 knows about that? 12 MR. HICKEY: Yes. () 13 JUDGE SMITH: I think I would want to know about l 14 that. 4 15 Do we have to go through the rest of them now 16 that we have established the ground rules? Y 17 MR. JOHNSON: I don't think we do. 18 Just for the Judge's information, let me just say 19 this. We provided that document. Those -- the document was 20 the first document, I believe, of a package of something 21 like 650 pages, the top page of which was represented to be 22 documents submitted by counsel for Mr. Parks or for GAP to 23 the NRC. It was identified to the other side as such. 24 So it was in that context that we were () 25 responding, and it seems to me that, given the rules for 26 discovery against the Staff and it has to be shown that it /\\CE FEDERAL RepoRTuns. INC. 202 347 37(X) Nationwide Cmcrage 8(X)-33MM6
8840 13 13 202 l kbur 1 is necessary for proper decision and the information is not 2 available from another source, it is simply accommodating 3 them to have Mr. Meeks provide answers to these questions. 4 This information came from fir. Parks' counsel. ~ 5 He can ask Mr. Parks about these matters. 6 JUDGE SMITH: I am in sympathy with what you are 7 saying, and that is normally the case, and that would 8 certainly be the case in the licensing phase, but having 9 raised and represented that they have serious questions 10 about Mr. Parks' credibility and that is an issue in the 11 case, then there is greater justification for regarding NRC 12 information as information not available from Parks and ) 13 Devine. 14 MR. JOHNSON: Without going into great detail, we 15 don't necessarily accept any of the premises about the 16 credibility of Mr. Parks. 17 JUDGE SMITH: I understand that. You do not have 18 to concede to that, nor do I have any views on it at all. I 19 am just saying they have a right to construct their case on 20 the theory that they wish to. As you call it, it is a dual 21 motive case. 22 MR. JOHNSON: I was not addressing only Item 1. 23 I said as to the four documents we will ask Mr. Meeks to be 24 prepared to address them. ( 25 MR. HICKEY: Fine. 26 Judge, there is one aspect of the motion that is ACE FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Cmcrage 801A336-6646
8840 13 13 203 lhhbur 1 different from the four documents that I would like to 2 address, but I understand that we have resolved the matter 3 of the four documents; that is, that Mr. Johnson will send 4 the questions, or already has sent the questions to Mr. 5 Meeks, and will have him prepared to address them, and it 6 may or may not give me information before the deposition but 7 at any event at the deposition I will address them to Mr. 8 Meeks. 9 That leaves one loose end about this motion that 10 I am awar6 of if I could return to that. 11 JUDGE SMITH: Okay. 12 MR. HICKEY: Two of the interrogatories, No. 8 13 and No. 9, don't go to Mr. Parks' or Mr. Parks' counsel's 14 knowledge but go -- and I do not think it really goes 15 specifically to Mr. Meeks either. That is the subject of 16 the NRC's investigation of the " mystery man" allegations, 17 and we have asked whether that led to the preparation of any 18 reports or documents, Interrogatory No. 8. 19 It seems to me that it is a simple enough 20 question. If the answer is yes, I think the reports are 21 clearly relevant to Mr. Parks' credibility. If the answer 22 is no, then there is no need to respond to No. 9 except to 23 indicate -- 24 JUDGE SMITH: The complaint is the search 25 necessary to answer either way. 26 MR. HICKEY: The search is to determine Act FliDliRAL RiseoRTt Rs, INC 202-147-37(X) Nationwide Cmerage AWL 3% 6646 l
i 8840:14 14 20d ' bbur l' whether -- the three or four subjects that OI undertookLto-2 investigate,-how they closed out:the " mystery l man," and 3 whether it' led to a report, not-just some memorandum by Mr. 4 Meeks, but was there ever a report or a conclusion'or a 5 determination or combination. discussing the findings. 6 That I think would be a fairly easy document to-7 identify if it exists, and if the. answer is that it does not 8 exist and there was no report prepared, then we~have 9 basically asked why was that, and I think.these questions we 10 would like to have answers to, and it is unlikely in my mind 11 that Mr. Meeks is really the most appropriate source-for 12 them. ( 13 JUDGE SMITH: Is there a factual dispute? Mr. 14 Johnson says they already answered that interrogatory. 15 MR. JOHNSON: That is absolutely correct. 16-JUDGE SMITH: This is an area where there is not 17 a meeting of the minds. I.think a telephone call might have 18 helped. 19 MR. HICKEY: If it has been answered, I am' 20 unaware of it. 21 JUDGE SMITH: A complete answer might have been 22 that it had been answered but at this stage everybody is 23 annoyed. He is not inclined to help you. So now he is 24 going to help you. ( 25 MR. BERRY: Mr. Presiding Officer, may I ace. FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6646
i 8840 14 14 205 lhkbur 1 interject one point here? 2 With respect to the " mystery man," when we began 3 this discussion your Honor stated that GPUN had injected or 4 raised an affirmative defense on the " mystery man" issue and 5 therefore they are entitled to build their case or discover 6 information related to that, and the Staff agrees with that 7 as far as it goes. 8 But again, I would just point out and restate the 9 Staff's position, the " mystery man" -- the question of the 10 " mystery man" is not part of the Staff's case. It is not 11 accounted for in the NOV, the so-called defense raised by 12 the other parties, and I think it is important to bear in 13 mind how it comes up by the other parties, and that is that 14 somehow -- it is their position that somehow Mr. Parks had 15 so poisoned the atmosphere at TMI-2 by identifying Mr. 16 Kunder as the so-called " mystery man," that Mr. Arnold was 17 so moved and moved immediately to remove Mr. Parks from the 18 site. 19 Now, given that defense, the only important issue { 20 there is the basis of Mr. Arnold's state of mind. What 21 knowledge did Mr. Arnold have at the time that led him to 22 believe that Mr. Parks falsely, maliciously, recklessly and 23 knowingly identified Mr. Kunder as the " mystery man"? 24 Now, as far as was in fact Mr. Kunder the mystery 25 man, what investigation did the Staff conduct subsequent to ace FEDERAL REPORTIIRS, INC. 202-347-3700 Nanonwide Coserage 800-336M46
l 8840 14 14-206 l kbur 1 Mr. Parks' press conference, what other investigations the 2 Staff has conducted into this whole area, I would agree with .3 the Presiding Officer that this area is so far removed from 4 the issues that are in this case that I really think it is 5 fruitless, and it is, as my colleague has pointed out, 6 burdensome and oppressive to spend time on that. 7 The. issue of the " mystery man" in this case is 8 peculiarly within the knowledge of GPUN, particularly Mr. 9 Arnold and any other manager by the GPU and/or Bechtel who 10 claims that because of Mr. Parks' accusation or 11 identification of Mr. Kunder as the " mystery man" that that 12 compelled his immediate removal from TMI. 13 JUDGE SMITH: Do you intend'to challenge Mr. 14 Arnold's testimony to that effect if it comes up? 15 MR. BERRY: We would question the basis for his 16 knowledge of that point.' 17 JUDGE SMITH: The basis of his knowledge? 18 MR. BERRY: Sure. 19 JUDGE SMITH: But you do not intend to question 20 the accuracy of his belief? 21 MR. BERRY: That he believed that Mr. Kunder was 22 not the " mystery man"? 23 JUDGE SMITH: That.he believed -- yes, that Mr. 24 Parks falsely and maliciously blamed Mr. Kunder for being ( 25 the " mystery man." /\\CE FEDERAL REPORTERS, INC. -f-f 202-347-3700 Nuionwide Coverage 800 336-6646
P' 8840 14 14. 207 llhbur 1 If you do not intend to challenge the-bona fides 2 of Mr. Arnold's belief that that is the case, the 3 reasonableness of it -- 4 MR. BERRY: We absolutely question that. 5 JUDGE SMITH: Then isn't he entitled to 6 corroboration? 7 MR. BERRY: No -- well, to the extent that he 8 needs corroboration, they have the corroboration. They do 9 not need E:aff investigations to get the facts for the 10 corroboration, and the issue -- ultimately, the issue in 11-this case is whether Mr.-Parks misaccused or falsely accused 12 Mr. Kunder and whether Mr. Arnold knew that Mr. Parks (f 13 falsely accused Mr. Kunder. 14 I have not heard from GPUN that they are taking a 15 position th'at Mr. Arnold' knew at the time he decided to-bar 16 or to direct Bechtel to bar Mr. Parks from the site, that 17 Mr. Arnold knew that Mr. Parks. basically was a liar, that he 18 was acting maliciously. '19 JUDGE SMITH: What if Mr. Arnold says I had 20 reason to believe to my satisfaction that Mr. Kunder -- that-21 Mr. Parks maliciously charged Mr. Kunder with being the-22 " mystery man"? We satisfied that, and that was my 23 incentive, that was my motivation? L 24 MR. BERRY: We would question that. ' () 25 JUDGE SMITH: You would question that, and he I l t ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 80 4 336-6646
8840 14 14 208 lhkbur 1 says you are going to question me about that and therefore I 2 would like to have other evidence of my belief, other 3 evidence parallel to my belief to support my belief. 4 Corroboration, simply corroboration that his belief is 5 reasonable and accurate. 6 MR. BERRY: The information that is being sought 7 here is not corroborative of Mr. Arnold's belief, as the 8 Presiding Officer just described, and that is our objection 9 at this point here. The information that is being sought 10 goes toward whether in fact Mr. Kunder was the " mystery man" 11 or was he not the " mystery man." 12 The issue here for our purposes is whether Mr. 13 Arnold knew that Mr. Parks falsely and recklessly, 14 maliciously or intentionally fingered Mr. Kunder. 15 Now, that is not the information being sought 16 here. The information being sought here goes to the 17 substance or the technical details of it. What we are 18 interested in is what did Mr. Arnold know, when did he know 19 it, and they are not going to find that information from the 20 Staff, who conducted an investigation well after the fact, 21 and it is for that reason that we maintain consistently that 22 we believe that this whole line of inquiry is just beyond 23 the scope and is irrelevant to this proceeding and it unduly 24 delays and causes the Staff undue burden. ~ 25 JUDGE SMITH: It is relevant enough for ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coserage 800-336-6M6
8840 14 14 '209 lhkbur 1 discovery. All of these arguments may very well come up, 2 and we will hear.you when it comes to trial of the case. 3 In trying to reduce burden, I think we will let 4 them make their case. I recognize it is always easier 5 sitting here to say, what the heck, let them go ahead and 6 discover. I have tried not to fall into that habit, but 7 this case is different. This is not a licensing case, it is 8 not a typical case. 9' This is the first time a case like this has come 10 up, and you have your version of what his motives were, and 11 they have their version, and this is getting sort of-like a 12 contested messy divorce case. ( 13 You know, you just cannot use traditional 14 discovery rules. You have to give greater latitude because ~ 15 the issues are much more factually subtle, and I don't 16 really know how to cut it off given the vagueness, the 17 subtleness, the ethereal' nature of what they night need to 18 prove their case. 19-I don't know how to cut off discovery any sharper 20 and still give them the opportunity to prepare. I am sure 21 there may be ways if I could figure them out, but I can't. 22 MR. BERRY: The Staff certainly appreciates the 23 Board's efforts to be fair in this case, and we think you 24 have done an excellent job. It is a difficult case, and O (_/ 25 credibility of different stories will be important in this ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800 336-6646 , ~. - - ~
f340 14 14 210 bur 1 case. 2 Staff just believes at this point that it is 3 important for there not to be any misunderstanding of our 4 position. One of the reasons is that -- one reason I stated 5 our position again to such length was I heard again that 6 somehow either the Staff had conceded that the " mystery man" 7 was relevant or -- 8 JUDGE SMITH: You have indicated that you intend 9 to go into the area during the trial and you have given some 10 support for them to inquire. You do not have to worry about 11 that. I say that the " mystery man" issue is relevant, and 12 you can blame it all on me. From here on in, it is my ( )~ 13 determination that it is relevant, and you are not adopting 14 that or conceding to it or anything else. 15 MR. BERRY: Thank you, your Honor. 16 JUDGE SMITH: But the thing that concerns me -- 17 and I want to talk about it -- is the examination of Arnold 18 about who remembered what, what time did Kunder come to 19 work, that kind of questioning. This is what I want to talk 20 about. 21 I don't want the case to go that way. I have sat 22 for too much evidence about who did what on the day of the 23 accident, to the extent that I do not have any confidence 24 that you can produce reliable, eyeball, memory information (f 25 from the day any more. It was not available two or three ace FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coverage 804336-6M6
- 8840 14 14 211 lhkbur 1
years ago, the last time I heard it, and it is even less 2 likely to be available today. 3 MR. HICKEY: Before we leave the last one, did we 4 -have a ruling that 8 and 9 could be answered,.that those two 5 interrogatories should be answered about the " mystery man" 6 investigation?- 7 MR. JOHNSON: It seems to me that the Judge was 8 going t'o try to leave it up to the parties to straighten 9 that one out, since there was a misunderstanding -- well, we 10 .took the position that you had information, and so on. 11 JUDGE SMITH: As to 8, we worked it out. I got 12 the impression that maybe you had overlooked their statement ( 13 that you already have it. I pointed out that if you had 14 been~a nice guy he would have pointed out, and I said you 15 can work it out. If it is there, you can work it out. 16 9, I have not even looked at yet. ' 17. MR. HICKEY: We can address it in the same 18 spirit. 19 JUDGE SMITH: Can you? 20 MR. HICKEY: It follows. For me, I am prepared -21 to try that. I am sure Mr. Johnson can. 22 MR. JOHNSON: 9 is a follow-up on 8. 23 JUDGE SMITH: 10 is not an issue, right? 24 MR. JOHNSON: Correct. (G ._) 25 JUDGE SMITH: You are not going to quarrel with ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
' 'O 14 14 212 i BLWbur 1 10? 2 MR. JOHNSON: I am sorry? That is not my 3 understanding. It was Mr. Hickey's statement, I thought. 4 JUDGE SMITH: I would not be inclined to force 5 interrogatories on 11. 6 MR. JOHNSON: We are fine. 7 JUDGE SMITH: I don't think that is necessary. 8 You will make your own case. 9 MR. HICKEY: May I add one more comment on the 10 " mystery man," recognizing that the issue of the 11 interrogatories is not what I am addressing? ('N 12 For what I hope is the benefit of informing the V 13 Court about the parties' perception of the issues in the 14 case and their relevance, I do want to say just one other 15 word about it. 16 I agree with Mr. Berry's statement that the state 17 of mind of Mr. Arnold or other parties who were making 18 decisions about what to do with Mr. Parks is relevant and 19 that the " mystery man" is a factor in that, a factor, and 20 for that reason it has that relevance. 21 I do not believe that is the only relevance of 4 22 it, however. It is an allegation that was made by Mr. 23 Parks under oath, as he made additional allegations under rx 24 oath, and if it were found that Mr. Parks deliberately lied V, 25 under oath, that would be relevant to Mr. Parks' credibility ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
y. ~ ,f"10 14f14 213 Y.l
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as well, even if Mr. Arnold didn't know anything about it. 2 But Mr. Parks, as a credible witness who will 3 testify in this hearing, if he has previously lied under 4 oath,'that is a relevant consideration for this Court. 5. JUDGE SMITH: That has been an understanding that 6 has been implicit in every ruling we have made, I.think. 7 MR. HICKEY: There is one other way in which it 8 may be relevant, and that gets to a legal question, and that i 9 is: 10 If you assume that Mr. Parks maliciously, because 11 of personal animosity against Mr. Kunder, issued an 12 affidavit publicly, with allegations-that Mr. Parks intended 13-to hold Mr. Kunder up to scorn and to injure him, does that 14 constitute protected activity within the meaning of the-15 regulation that is being applied here, and what is its 16 impact on other statements that may not be so motivated in 17 the same document? 18 That is a legal issue that we may have to 19 address, depending on how'the discovery.comes, but,I think 20 that the " mystery man" claim is relevant in those areas as 21 well. 22' JUDGE SMITH: I would include that as to 23 relevance. 24 MR. HICKEY: Yes. 25 MR. JOHNSON: I think that concludes the issues ACE FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coserage 800-336-6646
~ " 'l. 0 14 14 214 ,V BLWbur 1 that you proposed to cover. 2 JUDGE SMITH: I do have some more items 3 pertaining to the balance of the meeting up to the hearing. 4 MR. HICKEY: I have the order that you asked for. 5 JUDGE SMITH: All right. 6 Do we need a new deadline for discovery? 7 MR. HICKEY: I think we do. 8 JUDGE SMITH: Obviously, we do, but what should 9 it be? 10 MR. HICKEY: I anticipate the Staff has -- I 11 gather has only one more deposition that they want to take (~ 12 when Mr. Hoffman returns from his absence from the country. (_)) 13 I anticipate that we will have somewhere in the 14 vicinity of six to eight depositions that we want to take. 15 I would like to take Mr. Feinberg's and Mr. Meeks' at the 16 beginning of that process, and I don't know whether there 17 will be delay in being able to set that up or not. 18 Obviously, Mr. Parks is another witness that I 19 intend to depose. 20 Mr. King, who was mentioned earlier and who was 21 someone who made allegations at about the same time as Mr. 22 Parks did that he was being harassed and had some 23 involvement with Mr. Parks, was at one point considered by -) 24 the Staff as a witness. The last claim is the Staff said (O 25 they did not presently intend to call him as a witness, and ace FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 80)-336-6646
'l D .f^10 15'15 215 [N 1 i BLWbur 1 'if that changes, I assume.the Staff will notify us, and then 2 I?would;want to depose Mr. King, also, but I estimate that 3 there is probably six weeks or so ahead of us to get this-4 work done.- 5 MR. JOHNSON: I would want~to know who these 6 people are. It is the Staff's position.that except for Mr. 7 Meeks and Mr. Feinberg that discovery has been open for 8 .about eight months, and the Staf f.has diligently pursued 9 depositions, I'think -- we have done, I think, over 15 10-depositions already -- and that GPUN has done one. 11 I am not inclined to give'him a long time,to do' '/'s 12 more' discovery, simply because they now feel they want[to do ,.Q .13 a lot of depositions. They have had time to do depositions. 14 There is no question about that. And so far I~have only 15 heard Feinberg, Meeks, Parks, and King, only if he is going 16-to be a witness and he is not going to be a witness. 17 JUDGE SMITH: And the other points are follow-on? 18 MR. HICKEY: Mr. Beach is a deponent if he is 19 going to be a witness, and he has been identified.as a 20 witness. 21 The other witnesses I am not sure of. I think 22 they may be people from the TMI Program Office, participants 23 in the initial investigation of Mr. Parks' allegations, and 24 there may be additional ones as well. d7-' - 25 I do have to say that it is correct there has NCE FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coverage 800-336-6646
f"]O 15 15 216 ( / 5LWbur 1 been some time that has passed and we have not taken more ~ 2 than one deposition. That time has been fairly fully 3 occupied with producing witnesses for Mr. Johnson, 20. 4 JUDGE SMITH: Six weeks is not very long, and so 5 we will let it go at that. 6 MR. JOHNSON: What I would like to address, 7 though, your Honor, is what discovery that is allowed at 8 this point. It seems to me that we have gone a long way 9 down the path, and I would propose to limit discovery to the 10 deposition discovery and the completion of what is 11 outstanding. (~] 12 I think the time -- the deadline for discovery q,i 13 was May 1st. It seems to me it is a little late to be 14 starting new grounds of discovery. 15 JUDGE SMITH: It seems to me that discovery that 16 is not already in dissemination, like motions, and that has 17 not already been noticed should not be allowed unless there 18 is some reason why you think it should be. 19 MR. HICKEY: In terms of nondeposition discovery, 20 I might add that the Staff served additional document 21 requests on us on April 28th for fairly substantial amounts 22 of documents. I do not contemplate serving additional 23 document requests except for specific documents that may be fs 24 turned up or discovered in the course of depositions and L 25 which the Staff will not otherwise agree to produce. ACE-FEDERAL REPORTERS, INC. l 202-347 3700 Nationwide Coverage 800-336-6M6
P'10l15 15' 217 iO. .BLWbur 1 It is'possible that I will serve additional 2 interrogatories, very, very conscious of N.he comments that 3 have been made.oday about' interrogatories, not so much to 4 obtain factual information as to try to narrow some of the 5 contentions that the Staff is going to make because it may-6 affect:the scope of discovery. 7 JUDGE SMITH: These are position' type 8 interrogatories? 9 MR, HICKEY: Yes. 10 JUDGE SMITH: Narrowing issues. 11 MR. HICKEY: Other than that, I do not 12 contemplate additional discovery. 13 MR. JOHNSON: You may not be aware of it, your 14 Honor, but a few days before the close of discovery we 15 served a request for admissions. It was for that very same 16 -purpose. 17 In October, I believe, or maybe November, we sent. 18 GPUN a list of several dozere of proposed stipulations and 19 -heard nothing, and so wit one close of discovery t 20 approaching, we decided that our.only avenue was to serve 21. them in a form of admissions, so that we could try to narrow 2:2 the questions for the hearing in that way. 23 -MR. SMITH: I want to bring up a stipulation that 24 I would ask for, and as a matter of fact require, and that 25 is I would like to receive into evidence at the very ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6M6
F^^0 15 15 218 ) BLWbur 1 beginning of the hearings a stipulation listing all of the 2 people that are actors in this, who have been alluded to in 3 the various reports, describing what their role in the 4 events were and was, and it may be that certain people that 5 you cannot stipulate exactly but you can say, well, so and 6 so was in the parking lot such and such date and is alleged 7 to have said this, and whatever, and give us what his t 8 position was at the time and that type of thing. 9 All of these names are quite familiar to you, I 10 know, but there really are a lot of them, and they are 11 beginning to become familiar to me. But I can tell you they (~'s 12 are not going to be familiar to people on appeal, and it %-) 13 would be very helpful if right off the bat we had a cast of 14 characters saying who these people were and then stipulated 15 to. 16 I want to caution you, tell you that I will 17 require more than usual in the way of trial briefs and 18 advance information about the nature of your cases. Just be 19 ready for that. 20 So if discovery closes, let's say, the 1st of 21 July, we are talking about a hearing September perhaps, just 22 for long-range planning purposes. 23 MR. JOHNSON: I think as a ballpark estimate, 24 yes. p) 25 I would just point out that because, as you say, ACE FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coserage 800-336-6646
~ c - r ^';0 15 ~ 15 219 .t % 1 BLWbur 1 of the long-list'of characters in this drama that 2 preparation for trial will be somewhat complex and will take 3 some time. 4 JUDGE SMITH: Yes. 5 Also, I hope that perhaps, now t, hat you have 6 renewed communication, that you come up witii some way that 3 7 we do not hear Mr. Beach and others like hic going.on 8 explaining the' technical aspects of the safety -9 considerations, the safety significance of Parks' concerns. 10 I think that can be stipulated to. 11 MR. JOHNSON: We will take the Judge's remarks (~N. 12-under consideration. It seems to me that-it bears on Al -13. whether we will use him as a-witness at all. 14-JUDGE SMITH: Anything further? 15. I.will sign the order. 16 MR. HICKEY: The request for admissions that-Mr. 17 Johnson. referred to, as I understand the rules, there is to 18 be a date set by-the Presiding Officer for the response. I 19. would ask that we do that at the completion of discovery, 20 when we have finished deposing the witnesses, that we then 21 have a week or something to come up with responses. 22 JUDGE SMITH: I did not realize that there was no 23 petition to me. l 24 MR. HICKEY: Section 2.742(b). 25 JUDGE SMITH: Request for admissions are sent and ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6616 LE
f'70 15 15 220 BbWbur 1 then -- 2.742(b). That seems to be what it says. I was not 2 aware that I had a duty there. 3 MR. HICKEY: May I suggest July 7th as the date 4 to complete discovery and prepare a response. 5 JUDGE SMITH: Is that satisfactory, Mr. Johnson? 6 MR. JOHNSON: May I have a moment, please? 7 JUDGE SMITH: Yes. 8 (Counsel conferring.) 9 MR. JOHNSON: The Staff would not object to a 10 reasonable period of time for the responses, but I am not 11 sure that -- we would prefer not to have to wait that long 12 because what we receive in response to the request for (~/ 3 s_ ,13 admissions will bear on our preparation, and if we have to 14 wait until July 7th -- 15 JUDGE SMITH: Look at the admissions. Those you 16 are able to make, make when you can, and if some have to be 17 put off until the end of discovery, you represent that that 18 is the case. 19 MR. HICKEY: Very well. 20 MR. JOHNSON: Can we fix a date of 30 days from 21 the date that they were served? 22 JUDGE SMITH: What are you going to do about the 23 problem -- I have not read your admissions, but given the (V-) 24 idea that you want to establish, as established in the case 25 what they have met, very, very strong evidentiary conditions ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6M6
j' ^0 15 15 221 - { y,c BLWbur 1 and if their admission depends upon discovery, how are you 2 going to handle that?. 3 MR. JOHNSON: I have no problem with that. I 4 think there are many, many there that do not depend on the 5 discovery still to come. 4 6 JUDGE SMITH: So let's have this arrangement. 7' You have 30 days to answer admissions to admit what you can 8 admit. You have 10 days after that to admit as events 9 unfold. Let's say that on the 35th day you are able to 10 admit something and you have on the 45th day to admit. 11 MR. HICKEY: I see. s 12 JUDGE SMITH: Does that make sense? {J 13 MR. HICKEY: Yes. 14 JUDGE SMITH: And your final admission would be 15 due seven days after the close of discovery; is that 16 satisfactory? Does everybody understand that? 17 MR. JOHNSON: Yes. 18 MR. HICKEY: Yes. 19 JUDGE SMITH: I am troubled a little bit now by 20 the subpoena to Mr. Parks. 21 MR. HICKEY: Mr. Meeks. 22 JUDGE SMITH: Mr. Meeks. 23 You want him to bring all of his documents and he 24 says he has brought them all. He does not have to bring .A 25 those he has already produced? ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6M6
~.- .Es lf*10 15_15'
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%s? ^ 'BLWbur. .1 ! 'MR. HICKEY: ;What I-contemplate -- and-itLis the-2- same;as done in all the other depositions taken -- is that 3 we-will have'available the documents that had been produced. 4 If he has anything else in his-personal files-or desk 5 -calendar or-time sheets or something that shows-'- 'that is 6 relevant to the investigation, he should bring that. ~ 7 JUDGE. SMITH: The subpoena'will lua. interpreted .EF that way?. 9 MR. JOHNSON: Yes, sir. J . UDGE SMITH: That is routine.- 10 J 11 MR. HICKEI: May I give your Honor'the proposed ~ - 12 order on theLLabor: Department? And I have a copy for-13 counsel, too'. 14 (Counsel distributing documents.) 15 JUDGE' SMITH: This copy of the subpoena to Mr. 16 Meeks does not have attached to it:the: issues.. I assume it 3 ' 17 will be the issues that we approved for discovery. 18 In any event, Mr. Meeks' subpoena is to be; interpreted by the discussions we have had today? 19 L MR. JOHNSON: Yes. 21 MR. HICKEY: Yes.- 22 JUDGE SMITH: Would you send to me a copy.of the 23 . executed subpoena?. 4 24 I will not hold you up while I get a copy of it. 25 You can send it to me for my files. ACE FEDERAL REPORTERS, INC. 4 202-347-3700 Nationwide Coverage 800-336-6646
.f"10 15 15 223 i (,l. CLWbur. 1 MR. HICKEY: Yes. 2-JUDGE SMITH: I guess you have no way of knowing, 3 Lb'ut do you anticipate the discovery schedule will assume 4 that you will be able to' force your-discovery against the' 5 Department of Labor? 6 MR. HICKEY: And Mr. Meeks, for that matter. I 7 take it if that turns out to be an ill-founded assumption I 8 am liable to'be back'on what the discovery schedule is or 9 .something else. 10 JUDGE SMITH: Is there anything further? 11 Then we can excuse the reporter and adjourn. l(~] 12 MR. HICKEY: All of the~ subpoena orders have been %)- 13 signed? 14 JUDGE SMITH: I am signing them now. I just 15 ' don't want to keep her here. 16-I want to make sure that the record does reflect-17 that there is one of the protected documents'that I cannot 18 account for. I don't know where it is. It is a problem -19 F. hat I have to address. It is not in my possession 'right 20 now. i 21 MR. JOHNSON: The version you are referring to is 22 the unredacted version, I assume? 23 JUDGE SMITH: It is the full version of the third 24 document, on page 32. 25_ MR. JOHNSON: I do not believe it was among the ACE FEDERAL REPORTERS, INC, 202-347-3700 Nationwide Coverage 800-336-6616 - ~ - - 4 7g. -,--,-y y 9 ~ ~, --g
1 F"10 15 15 224 V.. BLWbur 'l. documents you turned back to me this morning. <2 JUDGE SMITH: You have looked -- my memory is you 3 have looked-twice now for it and cannot find it, and I have -4 looked any number of times. 5 -MR.' JOHNSON: If we can find another copy, we 6.h will send it-to you. 7 JUDGE SMITH: My concern is unauthorized 8 disclosure of it, gentlemen. If it turns up, I will let you 9- 'know that you.are entitled to have it. If you can find 10 another copy, send it-to me. 11 All-right? 12 MR. HICKEY: Let me raise one thing. Out of an .13 ' abundance of caution, I have not asked at this point for a ~ 14 . subpoena for Mr. Parks. I understand that Mr. Parks is 15 agreeable to cooperating and-be available, but if that turns 16 out not to be the case, I will ask for a subpoena for him. -17 JUDGE SMITH: Is that likely to be needed within 18 the next week and a half? 19 MR. HICKEY: No. I 20 JUDGE SMITH: All right. 21 Thank you. 22 (Whereupon, at 4:44 p.m., the prehearing 23 conference was adjourned.) l ) 25 /\\CE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646 ..a ..}}