ML19257C850

Motion to Compel DOJ Production of Certain Drafts of WE Scott Testimony,Per ASLB 791023 Order.Doj Asserted No Justification for Failure to Comply W/Aslb Order.Sb Cyphert 800115 Ltr to Jg Copeland & Certificate of Svc Encl

ML19257C850
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	01/21/1980
From:	Franklin W BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19257C845	List: ML19257C844 ML19257C850
References
NUDOCS 8001300587
Download: ML19257C850 (9)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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HOUSTON LIGHTING & POWER COMPANY ) Docket Nos. 50-498A et al. ) 50-499A

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(South Texas Project, Units 1 )

and 2) )

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TEXAS UTILITIES GENERATING ) Docket Nos. 50-455A COMPANY, et al. ) 50-446A

)

(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

MOTION OF HOUSTOU LIGHTING & POWER COMPANY TO COMPEL THE DEPARTMENT OF JUSTICE TO PRODUCE CERTAIN DRAFTS OF TESTIMONY PREPARED BY WILLIAM E. SCOTT AS THE BOARD ORDERED THE DEPARTMENT TO DO ON OCTOBER 23, 1979 This motion arises from the Department of Justice's [" Depart-ment"] refusal to produce certain draft testimony ordered produced to Houston Lighting & Power Company [" Houston"] by this Board on October 23, 1979, nearly three months ago. The testimony in ques-tion was prepared by the Department's designated expert engineering witness, William E. Scott, in connection with his expected testi-mony in the evidentiary hearing in this case. Houston moved to compel production of this testimony on September 16, 1979, the Department filed a memorandum in opposition, and the Board ordered production be made.1/

b!A detailed history of the matter appears in the Motion of Houston Lighting & Power Company to Compel Production by the Department of Justice of Certain Drafts of Testimony Prepared by William E.

Scott, dated September 10, 1979 at 1-4.

4 18 " 2l 5 '

8001300 s # 7

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Over the past sc:veral months, Houston has requested this testimony informally a number of times. Recently, Houston was advised by the Department that either the testimony or a pleading would be forthcoming the week of January 7, 1980. Neither event transpired.

However, on January 15, 1980, Houston was sent a letter wherein the Department states that it " presently does not anticipate that William E. Scott will testify as an expert wit-ness" in this proceeding, and that therefore the Department will not produce his draft testimony. The Department further advises that Mr. Scott's status for now has been converted to a "non-testifying expert." The Department reserves the right, however, to re-designate Mr. Scott as a testifying expert at a later time, in which event it would then be willing to comply with the Board's Order. (Exhibit A, hereto.) Houston respectfully moves the Board to order that the Department comply with its Order of October 23, 1979, and produce the draft testimony now.

The Department must not be permitted to avoid compliance with the Board's order by its recent announcement that it does not

" presently" intend to call Mr. Scott to testify at the hearing.

Already the Department has delayed for nearly three months its compliance with the Board's order. During that time, it has asserted absolutely no justification for its failure to comply. 2/ Apparently, during the nearly three months since the Board's order was issued, 2/ During Mr. Scott's deposition, counsel for the Department agreed to preserve the draft testimony "because the Board might very.well b rule that it could be turned over." Deposition Tr. at 358. .

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the Department has weighed the detrimental effect of complying with the order against the value of Mr. Scott's potential testimony. During this time Mr. Scott's name remained on the witness list, and the Board's order was simply flouted. Even now, Mr. Scott's name has been removed from the witness list in only a tentative fashion. The Department, in its letter of January 15, 1980, expressly reserved the right to call Mr. Scott as a witness.

Assuming that Mr. Scott from now on remains in the role of a non-testifying expert, Houston has no interest in inquiring as to work he may perform in that capacity. However, the policy against disclosure of such work has no application to drafts of testimony prepared when Mr. Scott was a designated expert. In fact, the Department itself has taken the position, subsequently upheld by the Board, that the privilege from discovery as a non<

testifying expert extends only to work done during the period of such employment. -3/

3/ Answer to NRC Staff and the Department of Justice to Motion of TU to Quash Subpoena to Charles T. Main, Inc., dated October 18, 1979 at 2-3. The Board upheld the Department's position in an October 18, 1979 conference call.

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1833 213 .

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For these reasons, the Board should again order the Department of Justice to produce immediately drafts of testimony prepared by its engineering expert and potential witness, William E. Scott.

Respectfully submitted, RO7_LE William J. Frd'nklin Attorney for Houston Lighting &

Power Company 0F COUNSEL:

Baker & Botts 3000 One Shell Plaza Houston, Texas 77002 Lowenstein, Newman, Reis, Axelrad

& Toll 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Dated: January 21, 1980 1833 214'

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• Exhibit A

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,; x g:] UNITED STATES I)EPARTMENT OF JUSTICE 3,$c h'l.: Y'

\ . _ '- - W ASlllNGTON, D,c, 20~,M N ..f Y

m_,....

, ,. . ._. . ..m . a 15 JA N 1980

..J H ,fn .. I am.t. . .J L..t-DAK:SBC 60-415-105 J. Gregory Copeland, Esquire Baker & Botts One Shell Plaza llou s to n , Texas 77002 Re: llouston Lighting & Power Company, et al.,

(South Texas Project, Units 1 & 2), Docket IJo s . 50-49CA and 50-499A and Texas Utilities Generating Company, et al., (Comanche Peak Steam Electric Station, Units 1 & 2) Docket Nos. 50-445A and 50-446A

Dear Mr. Copeland:

Please be advised that the Department of Justice (" Depart-mo n t" ) presently does not anticipate that William E. Scott will testify as an expert witness in the above captioned matters.

Accordingly, the Department will not produce Mr. Scott's draft testimony or make him available for deposition in March. If the Department decides to re-designate iir. Scott as an expert witness the Department vill promptly notify all counsel, pro-vide his draf t testimony and any other materials respons ive to the Board's Order on expert witnesses and provide counsel with an immediate oppor tunity to fur ther depose Mr. Scott.

The Department antic ipates that Mr. Scott will continue to assist the Department in its preparation for trial as a non-testifying expert, as his time permits.

The Department does, however, anticipate providing engi-neering testimony through individuals who have already been de s ig nated as expert witness in these proceed ings.

Sincerely,

,h&t?4QfY$d$?? ,L'ING!

Susan Braden Cyphert .

Attotney Energy Section -

^" " '""

cc: Chairman Miller and 1833 215 Messers. Wolfe and Glaser Richard Heiner, Depattaent of Energy William E. Scott, Department of Energy All counce) of record

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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HOUSTON LIGHTING & POWER ) Docket Nos. 50-498A COMPANY, et al. ) 50-499A

)

(South Texas Project, )

Units 1 and 2) )

)

TEXAS UTILITIES GENERATING ) Docket Nos. 50-445A COMPANY et al. ) 50-446A

)

(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the foregoing Fourth Set of Interrogatories and Requests for Production of Documents from Houston Lighting & Power Company to Antitrust Division, U.S.

Dcpartment of Justice and Motion of Houston Lighting & Power Company to Compel the Department of Justice to Produce Certain Drafts of Testimony Prepared by William E. Scott as tne Board Ordered the Department to do on October 23, 1979 were served upon the following persons, by hand *, or by deposit in the United States Mail, first class postage prepaid, this 21th day of January, 1980.

Ac William J. Franklin

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l'833 216

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• Marshall E. Miller, Esquire Roy P. Lessy, Jr., Esquire U.S. Nuc'. car Regulatory Commission Frederic D. Chanania, Esquire Wa s hin a'_on , D.C. 20555 Michael B. Blume, Esquire

, Ann P. Hodgdon, Esquire Michael L. Glaser, Esquire U.S. Nuclear Regulatory Commission 1150 17th Street, N.W. Washington, D.C. 20555 Washington, D.C. 20555 Roff Hardy

• Sheldon J. Wolfe, Esquire Chairman and Chief Executive U.S. Nuclear Regulatory Commission Officer Fashington, D.C. 20555 Central Power and Light Company Post Office Box 2121 Atomic Safety and Licensing Corous Christi, Texas 78403 Appeal Board Panel U.S. Nuclear Regulatory Commission G.K. Soruce, General Manager Washington, D.C. 20555 City Public Service Board

• Post Office Box 1771 Chase R. Stephens, Supervisor (20) San Antonio, Texas 78203 Docketing and Service Branch U.S. Nuclear Regulatory Commission Mr. Perry G. Brittain Washington, D.C. 20555 President Texas Utilities Generating Company Mr. Jerome D. Saltzman 2001 Bryan Tower Chief, Antitrust and Indemnity Dallas, Texas 75201 Group U.S. Nucl ar Regulatory Commission G.W. Oprea, Jr.

Washington, D.C. 20555 Executive Vice President

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Houston Lighting & Power Comoany J. Irion Worsham, Esquire Post Office Box 1700 Merlyn D. Sampels, Esquire Houston, Texas 77001 Spencer C. Relyea, Esquire Worsham, Forsyth & Sampels R.L. Hancock, Director 2001 Bryan Tower, Suite 2500 City of Austin Electric Utility Dallas, Texas 75201 Post Office Box 1086 Austin, Texas 78767 Jon C. Food, Esquire Matthews, Nowlin, Macfarlane Joseoh Gallo, Esquire

& Barrett Robert H. Loeffler, Esquire 1500 Alamo National Building Isham, Lincoln & Beale San Antonio, Texas 78205 1050 17th Street, N.W., Suite 701 Washington, D.C. 20036 Charles G. Thrash, Jr., Esquire E.W. Barnett, Esquire Michael I. Miller, Esquire Theodore F. Weiss, Esquire James A. Carney, Esquire J. Gregory Copeland, Esquire Sarah Welling, Esquire Baker & Botts Isham, Lincoln & Beale 3000 One Shell Plaza One First National Plaza Houston, Texas 77002 Suite 4200 Chicago, Illinois 60603 R. Gordon Gooch, Esquire Steven R. Hunsicker, Esquire David M. Stahl, Esquire Baker & Botts Isham, Lincoln & Beale 1701 Pennsylvania Avenue 1050 17th Street, N.W.

20006

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Washington, D.C. Suite 701 Washington, D.C. 20036 Martha E. Gibbs, Escuire Isham, Lincoln & Beale 1835 21 One First National Plaza Chicago, Illinois 60603

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• Don R. Butler, Esquire David A. Dopsovic, Esquire Sneed, Vine, Wilkerson, Selman Frederick H. Parmenter, Esquire

& Perry Susan B. Cyphert, Esquire Post Office Box 1409 Nancy A. Luque, Esquire Austin, Texas 78768 Energy Section Antitrust Division U.S. Department of Justice Mr. William C. Price P.O. Box 14141 Central Power & Light Company Washington, D.C. 20044 P.O. Box 2121 Corpus Christi, Texas 78403 Morgan Hunter, Esquire Bill D. St. Clair, Esquire Mr. G. Holman King McGinnis, Lockridge & Kilgore West Texas Utilities Company Fifth Floor P.O. Box 841 Texas State Bank Building Abilene, Texas 79604 900 Congress Avenue Austin, Texas 78701 Jerry L. Harris, Esquire Richard C. Balough, Esquire W.S. Robson City of Austin General Manager P.O. Box 1088 South Texas Electric Cooperative, Inc.

Austin, Texas 78767 Route 6, Building 102 Victoria Regional Airport Joseph B. Knotts, Jr., Esquire Victoria, Texas 77901 Nicholas S. Peynolds, Esquire Debevoise & Liberman Robert C. McDiarmid, Esquire 1200 17th Street, N.F. Robert A. Jablon, Esquire Washington, D.C. 20036 Marc R. Poirier, Esquire Spiegel & McDiarmid Don H. Davidson 2600 Virginia Avenue, N.W.

City Manager Washington, D.C. 20037 City of Austin P.O. Box 1088 Kevin B. Pratt Austin, Texas 78767 Texas Attorney General's Office P.O. Box 12548 Jay Galt, Esquire Austin, Texas 78711 Looney, Nichols, Johnson & Hays 219 Couch Drive William H. Burchette, Esquire Oklahoma City, Oklahoma 73102 Frederick H. Ritts, Esquire Law Offices of Northcutt Ely Knoland J. Plucknett Watergate 600 Building Executive Director Washington, D.C. 20036 Committee on Power for the South-west, Inc. Tom W. Gregg, Esquire 5541 East Skelly Drive P.O. Box Drawer 1032 Tulsa, Oklahoma 74135 San Angelo, Texas 76902 John W. Davidson, Esauire Leland F. Leatherman, Esquire Sawtell, Goode, Davidson & Ticili McMath, Leatherman & Woods, P.A.

1100 San Antonio Savinsg Duilding 711 West Third Street San Antonio, Texas 78205 Little Rock, Arkansas 72201 Douglas F. John, Esquire Paul W. Eaton, Jr., Esquire Akin, Gump, Hauer & Feld Hinkle, Cox, Eaton, Coffield & Hensley 1333 New Hamoshire Avenue, N.W. 600 Henkle Building ,

Suite 400 P.O. Box 10 Washington, D.C. 20036 Roswell, New Mexico 88201 1833 218

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Robert M. Rader, Esquire Conner, Moore & Corber 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 W.N. Woolsey, Esquire Kleberg, Dyer, Redford & Weil 1030 Petroleum Tower Corpus Christ, Texas 78474 Donald M. Clements, Esquire Gulf States Utilities Company P.O. Box 2951 Beaumont, Texas 77704 Dick Terrell Brown, Esquire 800 Milam Building San Antonio, Texas 78205 C. Dennis Ahearn, Esquire Debevoise & Liberman 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 1833 219

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