ML19260D169

Motion for Protective Order Limiting DE Simmons Deposition to One Appearance Between Effective Date of Order & 800331. Urges Showing of Extraordinary Circumstances If Several Appearances Are Required.Certificate of Svc Encl

ML19260D169
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	01/25/1980
From:	Copeland J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19260D165	List: ML19260D164 ML19260D169
References
NUDOCS 8002080026
Download: ML19260D169 (8)

Text

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

)

HOUSTON LIGHTING & ) Docket Nos. 50-498A POWER COMPANY, ET AL ) 50-499A

)

(South Texas Project, )

Units 1 and 2) )

)

)

TEXAS UTILITIES ) Docket Nos. 50-445A GENERATING CO., ET AL ) 50-446A

)

(Comanche Peak Steam )

Electric Station, )

Units 1 and 2) )

& iION FOR ISSUANCE OF PROTECTIVE ORDER On January 17, 1980, the Department of Justice (the " Department") applied for the issuance of a deposition subpoena to Mr. D. Eugene Simmons, a Vice President of Houston Lighting & Power Company (" Houston"). The Department's subpoene would call for Mr. Simmons to appear for a deposition on January 30, 1980. Mr. Simmons previously has been deposed in this case for a day and a half in mid-Cctober 1979, and also for a full day on September 25, 1979, with the transcript of that deposition covering 418 pages and 51 documentary exhibits.

Upon receipt of the Department's Application, attorneys for Houston became concerned that the Department 8002080() >

1942 113

would not settle for two depositions of Mr. Simmons and would seek to re-notice Mr. Simmons still again during the month of March, 1980, during the period set aside by the Board for discovery of expert witnesses. Consequently, attorneys for Houston sought agreement from the Department that Mr. Simmons not be subjected to three depositions in a six-month period.

In particular, Houston proposed to make Mr. Simmons available in March and would not object to questions from the Department regarding factual inquiries as opposed to expert testimony.

However, Houston was unable to secure the Department's cooper-ation. Consequently, Houston moves the Board for issuance of a Protective Order limiting the Department to one further deposition of Mr. Simmons between the entry of said order and the termination of discovery in this matter.

Mr. Simmons is a corporate executive with extensive duties that require his daily attention. Nevertheless, Mr.

Simmons has assisted in preparing responses to the many interrogatories and document requests propounded by the Department and others, and he has already made himself avail-able for two and a half days of deposition testimony in this proceeding. Furthermore, Mr. Simmons has previously been deposed, given testimony and been subjected to extensive cross-examination during the preparation for and the trial of the antitrust case in the federal district court in Dallas.

Houston does not gainsay the Department's right to inquire into the matters set forth in its Application. However, 1942 114

Houston notes that none of the matters seems to be of any urgency or of such a nature as to justify three separate depositions. For example, questions concerning the Forest Grove negotiations could just as easily be asked in March without prejudice to the Department's case.1/ The same may be said as to the question of whether the documents contained in Appendix C of the Department's Motion of July 11, 1979, were relied upon by Mr. Simmons in the formulation of his expert testimony. The Department's argument with respect to Mr. Simmons' knowledge of the subject of DC interconnections is nothing more than a self-serving statement which is totally devoid of explanation as to how Mr. Simmons' deposition testi-mony varied from what he said at the FERC conference.

Houston does not seek to limit the term of Mr.

Simmons' appearance at another deposition, or to limit the subject matter to be covered in such deposition to expert opinion. Houston only seeks assurance that Mr. Simmons will not be needlessly deposed twice between now and the end of discovery, thus crcsing him to appear three times for depo-sition within the space of six months.

On Janun; - so, 1980 Mr. Simmons is scheduled to preside over a conference held under the auspices of ERCOT involving a large number of people across the state of Texas.

1/ The Department knows by virtue of depositions of other persons that Mr. Simmons was not responsible for the negotiations. Thus, what little information he may have can surely be discovered in March without preju-dice to the Department.

1942 115 Houston, therefore, requests that his deposition be moved from January 30, 1980 in any event. Houston is willing to work out a mutually convenient alternative date with the Department and other parties, in either February or March.

Accordingly, Houston respectfully requests that the Board enter a Protective Order to the effect that:

(1) absent a showing of extraordinary circumstances, Mr.

Simmons may be deposed only one more time between the entry of such Order and the termination of discovery on March 31, 1930, and (2) Mr. Simmons' deposition shall not commence on January 30, 1980, but shall be moved to a mutually convenient time to be agreed upon by the parties.

Respectfully submitted, f

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.p.- e ,', , ' 7[ /

~

J. Gregory Copeland Attorney for Houston Lighting

& Power Company OF COUNSEL:

BAKER & BOTTS 3000 One Shell Plaza Houston, Texas 77002 (713) 229-1234 LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N. W.

Washington, D. C. 20036 (202) 862-8400 Dated: January 25, 1980 1942 i16 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

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

)

(South Texas Project, Units 1 )

and 2) )

)

)

Docket Nos. 50-445A TEXAS UTILITIES GENERATING 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:

Letter to Chairman M. E. Miller dated 1/25/80 and MOTION FOR ISSUANCE OF PROTECTIVE ORDER were served upon the following persons, by hand *, or by deposit in the United States Mail, first class postage prepaid, this 25th day of January, 1980.

f I h Alw -

(, -

1942 117

• Marshall E. Miller, Esquire Roy P. Lessy, Jr., Esquire U.S. Nuclear Regulatory Conmission Frederic D. Chanania, Esquire Washington, 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. Nuclear Fegulatory Commission G.W. Oprea, Jr.

Washington, D.C. 20555 Executive Vice President Houston Lighting & Power Comoany J. Irion Worsham, Esquire Post Office Box 1700.

Merlyn D. Sampels, Escuire 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. Wood, Esquire Matthews, Nowlin, Macfarlane Joseoh Gallo, Esquire

& Barrett Robert H. Loeffler, Esquire 1500 Alamo National Buildin0 Isham, Lincoln & Beale San Antonio, Texas 78205 1050 17th Street, N.W. , Suite 701

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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.

Washington, D.C. 20006 Suite 701 Washington, D.C. 2003'6

)9 Martha E. Gibbs, Escuire Isham, Lincoln & Beale One First National Plaza Chicago, Illinois 60603

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 Washir.gton , 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.W. 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, Escuire Leland F. Leatherman, Esquire Sawtell, Goode, Davidson & Tioili McMath, Leatherman & Woods, P.A.

1100 San Antonio Savincg Euilding 711 West Third Street San Antonio, Texas 78205 Little Rock, Arkansas 7m J1 Douglas F. John, Esquire Paul W. Eaton, Jr., Esquire Akin, Gump, Hauer & Feld Hinkle, Cox, Eaton, Coffield & Hensley 1333 New Hampshire Avenue, N.W. 600 Henkle Building Suite 400 P.O. Box 10 Washington, D.C. 20036 Roswell, New Mexico 88201 1942 i19

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 1942 120

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