ML19351E413

Response to GE Motion for Protective Order W/Respect to Notice of Deposition.Motion Should Be Denied & O'Rourke Required to Appear for Deposition.Certificate of Svc Encl

ML19351E413
Person / Time
Site:	Bailly
Issue date:	11/24/1980
From:	Vollen R PORTER COUNTY CHAPTER INTERVENORS, VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-CP, NUDOCS 8012100066
Download: ML19351E413 (6)

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NUCLEAR REGL~ATORY COMMISSION

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD '5' W..:jwe' \s///

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NORTHERN INDAANA PUBLIC ) Docket No. 50-367 -

SERVICE COMPANY ) (Construction Permit .i A (Bailly Generating Station, ) Extension) j .,q Nuclear-1)- ) 2

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"! l0 PORTER COUNTY CHAPTEPs D:TERVENORS ' RESPONSE J ds TO GENERAL ELECTR.'C'S MOTIO:: FOR 3 PROTECTIVE ORDER WITH RESPECT O NOTICE OF DEPOSITION j $

Porter County Chapter :ntervenors, by their attorneys, hereby respond to General Elec:ric Company's Motion for Protective Order With Respect to ::otice of Deposition. For

'he reasons set forth below, that motion should be denied '

and General Electric should be ordered to make Mr. O'Rorke available for his deposition in Chicago.

On October 14, 1980, GE appeared specially in this proceeding and filed a motion which, in the alternative, sought to delay discovery of certain cecuments rcquested by Porter County Chapter Intervenors from NIPSCO, sought to require that Porter County Chapter Intervenors make certain showings .

of relevancy, and sought the entry of a protective order in the form proposed by GE. In support of the third alternative in that motion, GE submitted, on October 17, 1980, the Affidavit of Eugene U. O'Rorke. Porter County Chapter Intervenors f .....

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responded to the first two alternatives by pointing out that GE lacked stand' '

to make claims concerning the relevancy of discovery and to increase the burdens on a party seeking discovery. (See Porter County Chapter Intervenors' Partial Answer to GE's Motion for Protective Order, dated October 24, 1980.1 As to the third alternative, because it was based entirely upon the unspported assertior.s made in the O'Rorke Affidavit, Porter County Chapter Intervenors determined that it was appropriate to interrogate the affiant to determine what facts existed to support GE's claim. Accordingly, we noticed

, the deposition of Mr. O'Porke on the matters contained in the- Affidavit , to take place at the office of counsel for Porter County Chapter Intervenors on November 17, 1980. GE did not produce Mr. O'Rorke as requested in the Notice and filed i the instant Motion for Protective Order With Respect to Notice of Deposition.

GE first asserts that the deposition of Mr. O'Rorke should not be taken at all. If the Board were to accept that position, it would be acquiescing in GE's effort to have its claim for protection based on an entirely one-sided record.

- GE has made broad ' assertions -concerning the proprietary nature of documents and the harm that would befall GE if they were disclosed. Fundamental fairness requires that we have the opportunity to test and contest the conclusions of the af fidavit.

An essential step _is the opportunity to depose the affian:.

Contrary to the repeated assertion by GE, there is nothing w

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unusual about taking the deposition of a persen who has signed an affidavit in support o f a mo tion , to determine whether there is factual support for the assertions in the affidavit. It is a commonplace occurrence.

GE next asserts that Mr. O'Rorke cannot be deposed pursuant to notice, but that a subpoena must be issued. GE bases that position on the fact that we have pointed out that GE is a "non-party" to this proceeding. Of course GE is a non-par.y and thus lacks standing to object to discovery on relevancy g. rounds. Equally as clear is that GE has a richt to appear pursuant to 10 CFR $ 2. 713 for purposes of protectine, itself from objectionabic discovery.*/ By so appearing, i*

has subjected itself to the duties of a party for the linite d purposes for which it appeared. Surely, just as GE has the right ta invoke the jurisdiction of this Board to seek a protective order, it has the concomitant duty to submit to the process of the Board for a determination as to whether it is entitled to that protection. GE was not forced into this prcceeding. It injected itself for the ostensible purpose of seeking protection. It must comply with the consequences of so injecting itself. Thus, the Notice is sufficient under 10 CFR 52.740a(a) to require Mr. O'Rorke's appearance.

Finally, GE asserts that Mr. O'Rorke be deposed only in San Jose, California, or rhat Porter County Chapter Intervenors

-*/ Alternatively, GE was free to let NIPSCO protect GE's interests on its behalf. See Kansas Gas and Electric Company (Wolf Creek Nuclear Generating Station), ALAB-311, 3 NRC c5, 87-89 (1076).

That SIPSCO chose not to do. Indeed, NIPSCO, which does have standing to object to discovery on relevancy grounds , han c::-

plicitly disclaimed any intentions to raise "any grounds for non-production in addition to those cited by GE." (NIPSCO's Response to Second Motion to Compel, dated November IC, 1930.)

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be required to reimburse GE for " expenses associated with" deposing Mr. O'Rorke in Chicago. (CE Motion at pp. 5-6).

5 The location of a deposition is of; course a matter for the sole discretion of the tribunal. 2,,, / Tomincas v. Dougics Aircraft Co., 45 F.R.D. 94, 97 (S.D. N.Y. 1968). Factors to be_ considered-include who is most able co bear the expenses

, of travel, and whether ' any business harm would be. suffered due to the deponent's absence. See Terry v. Modern Woodmen of America, 57 F.R.D. 141, 144 (W.D. Mo. 1972): Tomingas v.

Douglas Aircraf t Co., supra at 97. GE has not alleged the existence of any of these factors. The burden, of course, is

! on the party or person seeking the protective order to show l>. good cause for its entry. 10 CFR S2. 740(c) ; Baker v. Standard Industries, Inc., 55 F.R.D. 173, 180 (D. P.R. 1972). No such showing has been made by GE. Indeed, it has even failed to allege that it would suffer the annoyance, embarassment, oppression.

or undue burden or expense required by 52.740(c) for;the entry-of a protective order. In point of fact, the location of all parties to this proceeding, and their counsel, either in the f

Chicago area or the Washington, D.C. area, make it obvious chat the mos t convenient, least expensive place for Mr. O'Rorke's deposition to tua taken is Chicago. Moreover, there can be no  !

doubt that GE is -far better able to bear the exper.ses of travel than are Porter County Chapter Intervenors.

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2j. It is unclear how GE has arrived ~at its' position _that it should

~be-treated as a " corporate defendant," (GE Motion at op. 4-5),

l when, in fact, it initiated this entire dispute by seekinc, to L ' prevent. Porter-County Chapter Intervenors' access to NIPSCO's

documents. Nevertheless, there is no special rule for treatment

of " corporate _ defendants" an opposed to other types of parties.

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CONCLUSION Porter County Chapter Intervenors are entitled to depose Mr. O'Rorke.

The notice served is sufficient under 10 CFR $2.740a(a) to require Mr. O'Rorke to appear. GE has failed to es tablish any grounds for a protective order end,

, accordingly, !!r. O'Rorke should be required to come to Chicago for his deposition, at a date to be agreed upon by counsel, or to be ordered by the Board.

y 81IIS DATED:

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ovember 24, 1980 e -

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Respectfullysubmitted): '

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Robert J. Vollen e r-

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Jane M. Whicher A#

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~slsd By_ .-

Robert J . ,Vo tien Attorneys' for Porter County Chapter Intervenors Robert J. Vollen Jane M. Whicher 109 N. Dearborn St.

Chicago, IL 60602 (312) 641-5570 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Porter County Chapter Intervenors ' Response to General Electric's Motion for a Protective Order With Respect to Notice of Deposition, dated' November 24, 1980, by sending copies of same to all persons listed on the attached Service List, and

'by causing same to be deposited in the U.S .. mail, first-class postage prepaid, this 24th day of November, 1980, t

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Attorney

SERVICE LIST Herbert Grossman, Esq . Chair: nan George and Anna Grabcu Atomic Safety- and Licensing 7413 W. 136th Lane Board Panel Cedar Lake, Indiana

.U.S. Nuclear Regulatory Commi ss ion I.6293 Washington, D.C. 20555 Dr. George Schult:

i Dr. Richard F. Cole 807 E. Coolsprir, Rd Michigan City , [ndia.na 43a>

Atomic . Safety and Licensing Board Panel Richard L. Robbins, Esq.

U.S . Nuclear Regulatory Commiss ion Lake Michigan Federation Washington, D.C. 20555 53 W. Jackson Blvd.

Mr. Glenn C. Bright Chicago, IL 60604 Atomic Safety and Licensing Mr. Mike Olstanski Board Panel Mr. Clifford Meno U.S. Nucicar Regulatory Commissine Local 1010 Washington, D.C. 20555 United S-:eelworkers of Ar. erica Maurice Axelrad, Esq. 3703 Euclid Ave.

East Chicano, Indiana 4 6 3 .' .:

Kathleen H. Shea, Esq.

Lavenstein, Newman, Reis, Steven C. Goldberg, E.cq.

Axelrad and Toll Office of the Executive 1025 Connecticut Ave., N>U.

Legal Director

, Jar.hington , D. C. 20036 U.S. Nuclear Regulatorv Car. irs .

Washington, D.C. 20532

'Jillia= H. Eichhorn, Esq.

Eichhorn, Eichhorn & Link i

5243 Hohman Avenue Suian Sekuler, Esq.

Hammond, Indiana 46320 Assistant Attorne John Van Vranken,yEsq.

General Diane B. Cohn, Esq. Environmental Control Division William P. Schultz, Esq. 188 W. Randolph St. - Suite 2315 Suite 700 Chicago , IL 60601 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 Board Panel Washington, D.C.

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Stephen Laudig, Esq.

21010 Cumberland Rd.

Atomic Safety and Licensing Noblesville. IN 46060 Appeal Board Panel

' U.S. Nuclear Regulatory Commiss ion George L. Edgar Wachington, D.C. 20555 Kevin P. Gallen c.dward A. Firestone, Esq. Morgan, Lewis & Bockius Gencral Electric Company Suite 700 175 Curtner Ave. M/C 823 1800 M St., N.W.

San Jose,'CA .95125 Washington, DC 20036

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