ML20148D110
| ML20148D110 | |
| Person / Time | |
|---|---|
| Site: | 07000754, Vallecitos File:GEH Hitachi icon.png |
| Issue date: | 10/24/1978 |
| From: | Luton E Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7811020241 | |
| Download: ML20148D110 (13) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CCM{ISSION '.6 DeT.2# 1378 > 3
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BEFORE THE ATQ4IC SAFETY AND LICENSING BOARD %' -
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NRC PUBLIC DOCUMENT ROOM In the Matter of )
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GENERAL ELECIRIC CQ4PANY ) Docket Nos. 50-70
)70-754 (Vallecitos Nuclear Center - )
General Electric Test Reactor) )
i beDRANDlM AND ORDER These are traticns (1) for referral of a Board ruling on a discovery matter to the Cocmission, and (2) for the inposition of sanctions upon the Intervenors for their failure to cceply with a Board order compelling responses to an interrogatory propounded by the Licensee.
Background of the Disputes On or about June 26, 1978, the Licensee served identical inter-rogatories upon the Intervenors in this proceeding. The present disputes involve the first interrogatory in those filings, interrogatory No.1.
That interrogatory seeks the identity, professicnal qualifications and certain other information about "each person (the Intervenors] have utilized to conduct any review, analyses, tests, or studies related to" the issues in this proceeding. All of the Intervenors responded to this interrogatory on July 10, 1978, in identical fashion. They said then 781102oAd
that " professional qualifications, subject matter of review, and description of review will be given, under intervenor's continuing discovery obligation, as soon as they are available."
Then, by a pleading dated July 10, 1978, the Intervenors, in a shift of position, interposed objections to interrogatory No. 1. There, they took the view that (1) the names and qualifications of persons assisting them are "not relevant to any issue to be cons b red by this Icard." (2)". . . the identity of individuals aiding intervenors is privileged;" and (3) production would be " unduly burdensme", for the reason that, 2 has the power to effectively erase the career of any professional person connected in any way with the nuclear and electric power industry". On August 14, 1978, the Licensing Board granted the Licensee's motion to c mpel responses to all of the Licensee's June 26, 1978 interrogatories. Particularly with respect to interrogatory No.1, it appeared that the information sought which was "not available" at the time it was first requested, was indeed available at the time the motion to ecmpel was before us. In particular, our Order took note of tim fact 1
it Intervenors Dellums and Burton and Burton had stated, in their response to the Licensee's motion to ccupel discovery, that "intervenor's have submitted documents to many experts in various fields. Scme of these individuals have made coments on these documents." Additionally, Staff counsel informed us in a pleading that he had been contacted on nere than
one occasion by a person who represented himself as acting in a technical capacity on behalf of all of the Intervenors. We gave no weight to the claim that the identity of individuals . aiding the intervenors "is privileged",
because the privilege asserted was neither specified nor attenpted to be supported. Similarly, we did not credit the assertion that production would be " unduly burdensome".
By a pleading dated Septanber 25, 1978, the Licensee filed a cross-notion for the imposition of sanctions mon the Intervenors for their failure to cmply with the Board's August 14, 1978 Order campelling pro-duction. On October 6,1978, the Intervenors filed a joint response to the Licensee's cross-motion and set out more particularly the bases for their objections to nterrogatory No. 1. We address these issues herein.
Motion for Referrul of Ruling We will not refer our August 14, 1978 ruling on interrogatory No. 1 to the Coamission. Intervenors expressly seek referral " Pursuant to 10 CFR Section 2.730(f)". They can thus fairly be presumed to be basing their request on the requirements of that rule. Section 2.730(f) permits referral, "When in the judgment of the presiding officer prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense ...." No claim of " unusual delay or expense" is made in connection with our ruling on interrogatory No. 1. We presume, then, that the argument made is intended to describe a situation in which a referral is necessary "to prevent detrinunt to the public interest."
The argument is directed against the release of the nanes of persons assisting the Intervenors. It consists of a generalized, vitriolic, f' V
denunciatica of the " nuclear industry," with the General Electric Company 1/
being characterized as "one of the heads of the nuclear hydra." From it all, we are urged to embrace the notion that release of the names of the individuals assisting the Intervenors would be harmful to those individuals, because the Licensee "could" or '%ould" effectively erase the career of any professional person connected in any way with the nuclear or electric power industry." We do not credit this argument. It is sinply available to anyone of similar viewpoint in any case, depending for its persuasiveness on neither specific facts nor even precisely focused allegations concerning the particular " nuclear industry" target in view.
That the Licensee in this case, the General Electric Company, is a m mber of an industry which is apparently disliked by the Intervenors hardly gives rise to such "public interest" considerations as would warrant l referral of this discovery matter to the Comission.
l The Claim of Privilege In their Response to Licensee's Cross-Motion for Inposition of Sanctions, Intervenors for the first time spell out their claim of privileg; M Intervenors' Response to Licensee's Cross-Motion for Imposition of Sanctions, pp. 1-4.
"The privilege applicable to the names of persons to whom an attorney.2! has submitted technical papers is the attorney work product privilege. The list of names of persons aiding intervenors was
. prepared in anticipaticn of administrative hearings, and therefore is privileged."
We observe at the outset that interrogatory No.1 seeks the names of certain individuals, and not the production of some previously prepared document, i.e., a " list," containing such names. We also observe that the Intervenors have provided no citation of case authority for the proposition that such names constitute attorney work product protecting the names fran disclosure. Roberson v. Ryder Truck Lines, Inc.
41 F.R.D.166, dealt with a plaintiff's refusal to respond to inter-rogatories seeking the names of persons, known to plaintiff's attorney, who may have witnessed the accident which gave rise to plaintiff's action. In requiring disclosure, the court sated the following:
"It is plaintiff's position that since the names and addresses of these possible eye witnesses were obtained by an investigator employed by plaintiff's attorney, that this is a part of the attorney's work product, and under Hickman v. Taylor, 329 U. S. 495, 67 S. Ct.
385, and its progeny, disclosure of these names may not now be required. But this is a misecnception of what was said in that case. There the court was dealing with an attempt, without any showing of justification, to secure statements, private menoranda, and personal recol-lections prepared or formed by an adverse party's counsel.
Defendant here Esks only for the names and addresses of prospective witnesses or of peoplewir might kncw sane-thing about the accident upon which plaintiff's claim is based."
2] ,Ihe attorney work prochet privilege is available only to attorneys.
Intervenors Dellums, et al., are not represented by counsel in this proceeding. We assume that those Intervenors are not seeking to claim this privilege.
The court in that case went on co say, "It is inconceivable that any court would say that the nams and addresses of prespective witnesses could be classified as the work product of an att rney." In Cedolia v.
C. S. Hill Saw Mills, Inc. , 41 F.R.D. 524, the plaintiff objected to certain interrogatories on the ground that the names and addresses of her witnesses were discovered by her attorney and, therefore, consti-tuted attorney work product. In rejecting the claim, the court held that the '%ork product" rule enunciated in Hickran v. Taylor, suora, did not apply. The reason for this holding was that the court was not there concerned with memranda, correspondence, mental inpressions, or the personal beliefs of counsel, but only with "the effort of defendant to require the disclosure of true facts." The case here is not meaningfully utfferent.
The intention of the Licensee can be inferred fran the questions it has asked. The June 26 interrogatories seek a description of the seistdc and geologic design bases which the Intervernors believe would be proper for the GETR facility; a listing of the facility structures believed by the Intervenors to be important to safety in that regard; Intervenors' view about which of such structures will require design modifications; and, Intervenors' views concerning whether any such structures can be appropriately m dified. In short, it appears that the Licensee is seeking to determine just what the Intervenors contend with respect to
the proper seismic and geologic design bases for the GEIR facility. Such information will most likely be relevant to the testimony of the Licensee's witnesses on the trial of the case. Just what the Intervenors contend, I
and from what persons they .obtained the infornation on which to base their 1
contentions, is, in our view, within the proper bounds of discovery, even though the information may have been solicited from then by Intervenors' attorney, and even though their identities may be kncwn only to him.
Rule 26, FRCP "By analogy", say the Intervenors, " Federal Rule of Civil Procedure 26 supports" their position against disclosure of the requested names.
They place particular reliance on FRCP 26(b)(4)(B) . But there is no Ccnmission discovery rule even renotely similar to FRCP 26(b)(4)(B);
hence, we are unable to apprehend the supposed " analogy".
This is not a case in which resort to the Federal Rules may be appropriate in order to properly interpret and apply a Comnission discovery rule. (See, Camenwealth Edison Company, (Zion Station, Units 1 and 2), AIAB-196, 7 AEC 457, April 25,1975: "
... we think that the ' broad, liberal interpretation' given to the Federal Rules { citation omitted] must similarly be accorded the Ccmnission's discovery rules.").
Instead, the suggestion seems to be that we simply read FRCP 26(b)(4)(B) into the discovery scheme expressly set out in 10 CFR Part 2. We decline
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to do so. While it is true that some of the Ccnmission's discovery rules "are strikingly parallel to the analogous provisicns of the Federal Rules of Civil Procedure," Conmonwealth Edison Company, suora, that fact hardly 1
! provides a reasonable basis for inferring a Conmission intention to have discovery in its proceedings governed by the Federal Rules in instances such as this, where no analogous provision is to be found in the rules express 1v adopted. Indeed, we think the contrary inference is the better one: having expressly selected same, but not all, of the discovery provisions set out in the Federal Rules, the Cocmission did not intend for the unselected Federal Rules to control its proceedings.
On the scope of discovery,10 CFR $2.740 reads , in pertinent part, as follows:
"In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of p(ersons having knowledge of any discoverable matter."
emphasis supplied).
It thus appears that the identities of the persons assisting the Inter-venors are expressly discoverable under the Ccumission's rules. The quoted language is almost identical to FRCP 26(b)(1). Lhder that provision of the Federal Rules, the sought names would also be
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discoverable. Sea Colony, Inc. v. Continental Insurance Comoany, 63 F.R.D. 113.
The Intervenors rely on FRCP 26(b)(4)(B) (a Federal Rule which has no analogous provision in 10 CFR Part 2). In our view, however, even if the Comni.ssion's rules contained the identical provision, it would not aid the Intervmors' case. FRCP 26(b)(4)(B) i= as follows:
"a party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of expectional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means."
Intervenors say that they have not yet decided which experts will be called at trial; we should therefore conclude that these experts are not expected to be called at trial and, under Federal Rule 26(b)(4)(B), all discovery of these experts, including their identities, should be denied.
In Baki v. B. F. Diamond Const. Co., 71 F.R.D. 179, the plaintiff sought an order empelling the defendant to answer certain interrogatories which requested, anong other things, the nanes, addresses, and other identifying information of experts in possession of information relevant to the plaintiff's case. The defendant claimed, as do the Intervenors here, that since it had made no determination to utilize any of these individuals as experts at the trial, their identities were not subject to disclosure under FRCP 26. In ordering disclosure the court rejected the reasoning and the holding in Perrv v. W. S. Darley & Co. ,
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54 F.R.D. 2787 The Baki, supra, court relied on the language of Rule 26.
It first noted that Federal Rule 26(b)(1) (a provision which is almost.
identical to the language of 10 CFR 52.740, quoted above) requires that the identities and locations of persons having knowledge of any discover-able matter be supplied. And then:
'Tcis provision of Rule 26(b)(1) is not by its tems limited to the idenity and 1ocation of non-experts but, on the contrary, expressly allows such infomation to be obtained as to any
' persons having knowledge' of discoverable matter.
Such a broad umbrella encompasses the category of experts, who have been retained or specially employed in anticipation of litigation or prepa-ration for trial and who are not expected to be called as witnesses at trial, since they may have knowledge of matter discoverable or potentially discoverable under the provisions and requirments of Rule 26(b)(4)(B),"
Thus, the Baki case holds that, under FRCP 26, the names and addresses and other identifying information, of experts who have been retained or specially employed in anticipation of litigation or preparation for trial and who are not expected to be called as witnesses at trial may be obtained through interrogatories without any special showing of exceptional circumstances.
3_/ n.Ihe holding of Judge Myron Gordon in Perry v. W. S. Darley & Co. ,
supra, is that the identities of experts, who are not expected to be called as witnesses, are not discoverable except upon satisfaction of the standards of Rule 26(b)(4)(B). While Rule 26(b)(4)(B) in tems applies to the discovery of facts known and opinions held by experts not to be called as witnesses, Judge Gordon reasoned that since a tore rigorous standard is applied to discovery relevant infcaration kncwn to experts under Rule 26(b)(4)(B) than is applied to discovery such information frcm ordinary witnesses, a more rigorous standard should also be applied to discovering the identity and location of ordinary witnesses." 71 F.R.D. 179, at 181. As indicated, Baki rejected this reasoning, and the Darley case has not been followed.
The Intervenors correctly point out that Baki distinguishes "between experts who are or are not ' retained or specially employed. '"
The court in that case expressed the visa that discovery of experts "merely consulted informally" and not retained or specially employed on the case, and not expected to be witnesses at tria'., should not ordinarily be permitted:
"If they were merely consulted informally, but not retained or enployed, in the absence of the most unusual circumstances, they would not have any infor-mation or knowledge concerning a specific case at hand which would be discoverable. Such information as they would have would be that which generally could be possessed by any expert in their respective field.
To allow discovery of the identity of such persons merely consulted informally would be to interfere unduly with trial preparation and investigation."
We accept the Intervenors' representations in the instant case that they have " signed no consultants contracts, nor paid any fees, nor prcmtsed to pay any such fees." It nevertheless seems plain enough that these facts do not fully meet the reasoning of the Baki court. The court's viea does not really depend (surely not totally, if at all) upon the existence of contracts, the payment of fees, or upon any promise to pay such fees. Pather, t'.e stated view seems to us to depend primarily upon an assesstrent of the liklihood that there may be discovered "information or knowledge concerning a specific case at hand." According to the papers I before us, counsel for Intervenor Friends of the Earth has submitted technical papers for review to perscns in anticipation of these admini-
strative hearings. The intervening Congressmen have "suhnitted docuuents to many experts in various fields," some of whcm "have trade comments on these documents." These experts assisting the Intervenors are, or have been, specially engaged in connection with this case and are quite likely to have information or knowledge concerning this specific case. Prepara-tion for trial is not likely to be hampered by the discovery sought here.
Motion for Imoosition of Sanctions We deny the Licensee's Septanber 25, 1978 cross-motion for the imposition of sanctions upon the Intervenors. We deny the motion in 4/
the expectation that the Intervenors will reccnsider their position m this discovery question in light of the analyses set forth herein.
Intervenors shall have fourteen (14) days frcm the service of this 5/
Manorandum and Order in which to respond to interrogatory No.17 S "Intervenors have no intenticn of releasing the names of idividuals who are aiding intervenors to GE under any circumstances, unless these individuals are willing to publicly testify in upcoming GETR hearings." Intervenors' Response to Licensee's Cross-Motion For Inposition of Sanctions, p. 4.
E The sequence of pleadings and responsive pleadings has beccme scrrewhat confused. The Licensee s Cross-motion appears to complain of non-responsiveness to all its June 26 interrogatories. Intervenors' response to that motion includes some additional response to som of those inter-rogatories. The Licensee should have a further opportunity to consider those additional responses before the Board is called on to trake a judg-ment concerning the adequacy of any of them. We have dealt herein only with interrogatory No.1 of the June 26 set of interrogatories.
The Intervenors' motion for referral of the Board's August 14, 1978 ruling is denied.
The Licensee's cross-motion for the inposition of sanctions upon the Intervenors is denied.
IT IS SO ORDERED, THE ATG4IC SAFEIY AND LICENSIN3 BOARD 20 S
- Edward Luton, diairman Dated at Bethesda, Maryland this 24th day of October 1978.
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