ML19323A572

Forwards Rh Hartley 800211 Memo to NRC Re 800129 Answers in Preparation for 800220-21 Meeting.Requests Questions to Which Answers Were Stated,Per Rule Established in 790601 Prehearing Conference.Pages 421-423 of Transcript Encl

ML19323A572
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	03/20/1980
From:	Franklin W LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Blume M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
Shared Package
ML19323A569	List: ML19323A568 ML19323A570 ML19323A571 ML19323A572 ML19323A574
References
NUDOCS 8004210397
Download: ML19323A572 (4)

Text

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• EXHIBIT B L AW OFFtCES LOWENSTEIN, NEWMAN, RErs. AXELRAD & TOLL  !

002 5 CON N ECTICUT AVE NU E. N. W.

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.A..... ....s.. March 20, 1980  ;

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Michae1 B. Blume, Esq. j

'O','. .*. 'I','.'." . .

eu..........- Counsel for NRC Staff

• • "*"'*" U.S. Nuclear Regulatory Commission 7735 Old Georgetown Road Room 11701 '

Bethesda, MD Hand-delivery l

Dear Mike:

Enclosed is the Hartley document containing the answers for which we seek questions. I find it incredible ,

that Mr. Hartley provided.you this document without identification of the questions which he was answering.

For example, see page 20 in which he answers "Yes" three times.

So that you will not misconstrue our position, we are seeking the questions which Mr. Hartley was answering l in this document, whether the questions themselves, ques- ,

tion numbers, or even no identification of the questions '

actually appeared with his answers.  !

This position is squarely within the rule established l in the June 1, 1979 prehearing conference that unanswered questions from counsel to an expert witness are not dis-coverable, but when the expert answers the questions both

~

the questions and answers then become discoverable. See Tr.~423.

Sincerely, William J. Franklin -

Encl.

800.4210307-n .

EXHIDIT-C 421 MR. LESSY: I haven't heard of it yet here.

G 43 1 2 What the effect of that ruling really means, that if 3j a man is going to testify as an expert, anything the attorneys 8

4l do in support of his effort is not privileged.

5 CHAIRMAN MILLER: That's about right.

6, Attorneys don't have to get cross-examined, but they i

7' are not going to be able to start discussing what witnesses 8: testify and not have the witness subject to cross-examination as to what it consists of. You can't eat your cake and have i

9!

it, 10 l i

If you want to stay an attorney, fine. If you want II !

i 12 ! to be an attorney and you want to go ahe'ad with the preparation 13 , in such fashion that whatever ,is being discussed or shown enters 14 I

i into the thinking or could enter into the thinking, which is the i

15 l subject of the testimony --

l 16 ' MR. LESSY: Okay.

17 CHAIRMAN MILLER: Okay. Are there others of a 18 different kind or quality, Mr. Lessy?

19 MR. LESSY: Yes, there is a third category, too.

20 And that is set forth in Documents 2 and 3.

21 CHAIRMAN MILLER: 2 and 3.

. 22 MR. LESSY: Let's take the third document.

23 1/15/79 memorandum from me to the experts in which  ;

I 24 l I say, for example, that these are the types of questions t Feder:4 Reporters. anc. l 25 that I would like you to answer, okay. And'I list 100 questions I

,  ;

.o 422 3 44 1 For example, as I recall the document, again, the 2 l t; pes of questions clear;.y reveal my legal theories, what we I

And at 3l are thinking about the e.reas we think are important. .

4' a subsequent meeting +.he expert provides answers to them.

S' My understanding of that would be that that would 6' be pure work product.

7 CHAIRMAN MILLER: What if he disagreed with your

?

l ~He 8 theories as propounded in these 100 possible questions?

9, could come to you and say, " Boy, are you all wet on that one, i

10  ! but here's what I would say if I were on. trial?"

What do you do then? Call him?

II l . .

1 12 However, if as a result of all this hyplay of

( 13 i preparation, if he says, or says in substance, or can testify 14 to matters that he thinks are useful to your case and can do it 15 '

l honestly and appropriately, you call him. And you are perfect 1) i 16 entitled to do so.

17 MR. LESSY: He's not providing anything.

18 CHAIRMAN MILLER: You are providing everything..

I 19 ' MR. LESSY: I am providing questions.  ;

I l

20 CHAIRMAN MILLER: Well, why are you providing l

l 21 questions?

L.

22 MR. LESSY: To find out what the answers are. .

l 23 , CHAIRMAN MILLER: Of course.

24 MR. WOLFE: Are there answers here as to which you l j

l ..

i l e Federsi Remetm. loc. : i

25 ' ', I claim privilege?

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..~

<a 423

MR. LESSY: No. Houston says there has to be 4G 45 1 2 !,j'.answers, but there aren't.

Houston also said in their pleading These are

,_ g 3 l; that I am providing him facts, which they aren't. ,

i 4, simply questions which he will answer in a subsequent oral t

5 meeting. i Oh, I see. So far they are just l 6~ CHAIRMAN MILLER: 1 7j questions.

MR. LESSY: They are questions. They are 7 J.i2 t l 8,

9 ', of questions.

' CHAIRMAN MILLER: So they are simply a list of l I

II ' questions at this time. ,

t 12 l MR. LESSY: Those questions clearly reveal counsel's  !

l I3 thinking. -

1 i

I4 I We think that if it stops at that;-

.i.

CHAIRMAN MILLER: I l

15 , point or at that point, we think they would be work product.

I 16 l I mean, it's your product.

So long as you don't directly or_

I~ indirectly hop on that witness stand, fine.

18 ' Now, there ought to be a question as to what:is I9 l ~done thereafter.

But I take that --

20 I mean, if he answers them, he can be asked about 21 them. Or if he does it in writing, he can be asked to produce 22 the. documents. - If he does it. orally,'he could presumably, if be asked in his deposition. But

_23 not.otherwise privileged,

~ 2d now this is a. witness again.

It's not a consulting expert'wh0, !.

t FeGer9 Reporters, lne. ,

t 25 f

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is not a witness.

'li

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