ML19338F566

Request for Order to Compel Production of Documents from Util.Util Must Produce Documents Over Which Util Has Control Even If Not in Util Possession.Cause for Protective Order Not Shown.W/Cerfificate of Svc.Related Correspondence

ML19338F566
Person / Time
Site:	Bailly
Issue date:	10/14/1980
From:	Graham R, Osann E, Vollen R, Whicher J IZAAK WALTON LEAGUE OF AMERICA, PORTER COUNTY CHAPTER, VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8010200589
Download: ML19338F566 (7)

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PORTER COUNTY CHAPTER INTERVENORS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND ANSWER TO NIPSCO'S MOTION FOR A PROTECTIVE ORDER Porter County Chapter of the Izaak Walton League of America, Inc., Concerned Citizens Against Bailly Nuelear Site, Businessmen fer the Public Interest, Inc., Ja\mes E. Newman and Mildred Warner (" Porter County Chapter Intervenors"), by their attorneys, pursuant to 10 CFR 52.740(f)(1), move the Board to enter an order compelling production of documents by NIPSCO, and pursuant to 10 CFR 52.730(c), hereby answer NIPSCO's Motion for a Protective Order.

On August 21, 1980, Porter County Chapter Intervenors filed their First Request to NIPSCO for production of Documents ("First Request"). On September 26, 1980, NIPSCO filed its Response and "

n Objections to Porter County Chapter Intervenors' First Request to NIPSCO for Production of Documents and Motion for a Protective Order ("NIPSCO Response"), by which it both objects to producing some of the requested documents and seeks a protective order 3

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-MOTION TO COMPEL PRODUCTION 49 , ma i The First Request seeks production of a variety of documents "which are in the actual or constructive possession, custody or control of NIPSCO." NIPSCO is defined to include er j the company's " agents , employees, representatives,' subsidiaries,

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consultants, contractors or subcontractors."

NIPSCO asserts a " General Objection" to that portion of the definition which includes its " consultants, contractors or subcontractors ," on the grounds that NIPSCO cannot demand parti-cipation in a document search by these organizations and that, even if it could, travel over " great distance \" would be required.

NIPSCO's objection is based upon a misreading of the requ'est and the controlling regulation. The Commission's regu-lation governing production of documents , 10 CFR 5 2. 741(a) (1) ,

authorizes discovery of things "which are in the possession, custody, or control of the party on whom the request is served."

4 That is what the First Reques t seeks . Ic extends to documents concerning which NIPSCO retains actual or constructive possession,

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Counsel-for Porter County Chapter Intervenors and for NIPSCO have agreed that NIPSCO may defer its response to request numoer 6 until October 14, 1980, insofar as that request pertains to any contracts , subcontracts and agreements between NIPSCO 2 and General Electric Company.

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1 custody or control. If NIPSCO does not have either possession or-custody or. control over a document, it is not within 'the scope of the request. Requesting NIPSCO to produce documents

'A over which it has control, whether or not in its possession, is a proper request contemplated by $2.741(a)(1) . NIPSCO's objection that 'it should not be required to produce documents over which it does not have possession, custody or control is a non seauitur.

Such documents have not been requested.

g I NIPSCO's alternative ground of obj ection is equally without merit. There has been no showing as to why NIPSCO personnel would be required to travel " great distances" to search records of consultants, contractors and subcontractors, as opposed to having personnel of those organizations condnct the search. Nor has NIPSCO made any showing that General Electric, with *.ts offi'ces in San Jose, California, has any such documents to be searched for, nor has NIPSCO indicated how many of its consultants ,

contractors and subcontractors are located in Northwest Indiana or in Chicago, quite close to NIPSCO headquarters. In short, a supportable cle _m of " undue burden" must rest upon more than mere assertion of the words " great distance."

NIPSCOalsoasserts"SpecificObjections"toproducingthosk

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documents described in paragraphs 2, 5, 9, 12, 13 and 14 of the First Request which " tend te prove or disp, rove" a stated assertion or conclusion. Each such assertion or conclusion in those para- ,

graphs of the Request is taken directly from NIPSCO's February 7, 1979 and August 31, 1979 letters to Harold R. Denton in which it

• It should also be noted that if NIPSCO's obj ection had any merit, it would presumably extend as well to that part of the def3n' ~ ~ ,n which includes .NIPSCO's " agents , employees , representative. or

" subsidiaries". Yet NIPSCO has made no obj ection to that .part.

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- requests the extension of the latest completion date -of the Bailly facility. The grounds for NIPSCO's objection are that they call for " legal. conclusions"-and for the " mental impressions, conclusions , opinions , and legal theories of NIPSCO's attorneys ,"

and that the " vagueness" of theLrequest imposes an " undue burden" on NIPSCO (NIPSCO Response at p. 3) . Any request requires the producer of the document to reach a conclusion or opinion about a particular document in order to decide whether it falls within the requested' category. For example, whether or not a document is "related to" an assertion requires the same type of conclusion or opinion as is necessary to determine whether the document tends to prove or disprove the assertion. NIPSCO has stated that, without objection, it has made the conclusion as to which documents are "related to" the specified assertions. The objection is without merit: A request which may require the forming of a ',' legal conclusion" or " mental impressions, conclusions and opinions" of a document in deciding whether it falls within a particular category of documents is not obj e ctionable .

NIPSCO identifies neither the respect in which the request is vague nor what the burden is on NIPSCO. For that reason, its vagueness ground of- objection also must be rejected.

By comparison, a reques.t which calls for documents containing such legal conclusions or opinions might appropriately be the subject of a claim of privilege. No such documents are requested here. -

ANSWER TO NIPSCO'S MOTION' FOR A PROTECTIVE ORDER Without asserting any additional grounds, NIPSCO seeks the entry of a protective order to relieve it from producing the same documents to which it obj ects . The Commission's regulations,10 CFR 52.740(c), state that such an order is to protect a party or person from " annoyance, embarrassment, oppression, cn: undue burden or expense." NIPSCO has not shown f any of these, nor has it sought. to establish the " good cause" also reqJired by $2.740(c) . Accordingly, NIPSCO's motion for a protective order should be denied.

CONCLUSION

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For the foregoiag reasons NIPSCO's objections to Porter County Chapter Intervenors' First Request should be overruled and its motion for a protective order should be denied. An order should be entered compelling NIPSCO to produce all documents to which it has obj ected in its Response.

DATED: October 14, 1980 Respectfully submitted,.

Robert J. Vollen Jane M. Whicher - ->

Edward W. Osann, Jr.

Robert L. Graham By / /4 Robert J. Vollen ~ Robert /'. Vollen Jane M. Whicher 109 N. Dearborn St.

Chicago, IL 60602 (312) 641-5570

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Edward W. Osann, Jr. '

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(312)go, IL 822-9666 C gg*[k ff Robert L. Graham One IBM Plaza

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1 44th-Floor-Chicago, IL 60611 (312) 222-9350 CERTIFICATE OF SERVICE I hereby certify that I served copies of the i Porter Ccunty Chapter Intervenors' Motion to Compel Production of Documents and Answer to NIPSCO's Motion for a Protective Order, dated October la, 1980, on all persons on the attached Service List, by causing them to be deposited h the U.S. mail on October 14, 1980, firs t class postage prepaid.

A J. Vollen' Robe [r i

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SERVICE LIST l Herbert.Grossman, Esq., Chairman George and Anna Grabowski I AtomicMSafety-and Licensing 7413 W. 136*t Lane Board Panel Cedar Lake, Indiana 46303 -

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. George Schult::

Dr. Richard F. Cole 807 E. Coolsprine Rd. l Michigan City, Yndiana 46360 l Atomic' Safety and Licensing Board Panel Richard L. Robbins, Esq.

i U.S. Nuclear Regulatory Commission Lake Michigan Federation Washington, D C. 20555 53 W. Jackson Blvd. l Chicago, IL 60604 i Mr. Glenn O. Bright I Atomic Safety and Licensing Mr. Mike Olszanski  !

Board Panel Mr. Clifford Mezo 1 U.S. Nuclear Regulatory Commission Local 1010 Washington,10.C.. 20555 United Steelworkers of America )

3703 Euclid Ave. i Maurice Axelrad, Esq. East Chicago, Indiana 46312  !

Kathleen H. Shea, Esq. j Lowenstein, Newman, Reis, Steven C. Goldberg, Esq . l

. Axelrad and Toll Office of the Executive 1025 Connecticut Ave., N.W. Legal Director Washington, D.C. 20036 U.S. Nuclear Regulatory Cocadssi '

Washington, D.C. 20555 William H. Ei chhorn, Esq .

Eichhorn, Eichhorn & Link Susan Sekuler, Esq.

5243 Hohnan Avt.aue Assistant Attorney General Hammond , ' Indiana 46320 John Van Vranken, Esq.

Environmental Control Division Diane B. Cohn, Esq. 188 W. Randolph S t. - Suite 2315 William P. Schultz, Esq. Chicago, IL 60601 Suite 700

.2000 P Street, N. W. Docketing and Service Section Washington, D.C. 20555 Office of the Secretary U. S. Nuclear Regulatory Atomic Safety -and Licensing Commission _.

Beard Fanel Washington, D.C. - --

U.S. . Nuclear Regulatory Commissi.on

• Washington, D.C. 20555 Stephen Laudig, Esq.

Atomic Safety and Licensing No les e $N 6560 Appeal 3oard Panel U.S. Nuclear Regulatory Commission Washington, C.C. 20555  :

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