ML20215B324

Memorandum of Law in Support of Motion to Quash Subpoenae. Certificate of Svc Encl

ML20215B324
Person / Time
Site:	Comanche Peak
Issue date:	12/05/1986
From:	Gad R ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20215B286	List: ML20215B283 ML20215B324
References
OL, NUDOCS 8612120119
Download: ML20215B324 (45)

Text

_ _ _ - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

o 4 00LKETED UNITED STATES OF AMERICA tlSNRC NUCLEAR REGULATORY COMMISSION

'86 DEC 11 P1 :33 h

before the GFFicE 0 ai ;,..'

ATOMIC SAFETY AND LICENSING BOARD 00CP.ETgt :  : . w3.

)

In the Matter of )

)

TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL COMPANY, et al. ) 50-446-OL

)

(Comanche Peak Steam )

Electric Station, )

Units 1 and 2) )

)

)

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO QUASH SUBPOENAE .

Applicants submit this Memorandum of Law in support of their motion to quash thirteen subpoenae duces tecum issued September 22, 1986.

INTRODUCTION

1. The Subpoenae The subpoenae are addressed to one person formerly employed with CPRT, eight persons substantively affiliated with CPSES or Applicants only through the CPRT effort and 2 6 P G

l 1

l

F i

three officers of TUEC who are connected or interact in some manner with CPRT.1 These subpoenae issued on CASE's behalf nominally are addressed to questions of the generic adequacy of the CPRT Program Plan.2 They also advise that CASE seeks to examine witnesses concerning "all explanations given by Applicants" and include broad-ranging document requests, which purport in vague and expansive terms to compel the subpoenaed witness to bring with him all documents in his " custody or 1

CASE served Applicants with notices of deposition of the following individuals, whose positions with CPRT or TUEC are as follows:

Michael D. Spence - President,-TUGCO '

William G. Counsil - Executive Vice President, Nuclear, TUGCO John Beck - Chairman, SRT John Rushwick - CPRT Response Team Leader (testing)

Monty Wise - Former CPRT Response Team Leader (testing)

John Mallanda - CPRT Response Team Leader (electrical)

John H. Buck - Member, SRT Howard Levin - CPRT Response Team Leader (Design Adequacy Program)

Terry Tyler - CPRT Program Director John Hansel - CPRT Response Team Leader (Quality of Construction)

John Streeter - Director, Quality Assurance, TUGCO In addition, CASE filed a subpoena addressed to "The Head of SSG." Mr. Ed Brabazon is the person who directs the SSEG function, which is a function of CPRT Action i Plan VII.c.

2 The Board authorized discovery on CPRT Program Plan adequacy questions at the August 18-19, 1986, pre-hearing conference. See Tr. 24603.

. s possession (or under his control) that refer or relate in any way to" subjects such as the process through which TUEC

" implements 10 CFR Part 50, Appendix B, responsibilities in regard to CPRT activities," all " preliminary assessments done in the electrical area," and "any other matters" purportedly bearing upon CPRT adequacy, including

" implementation of the program." (emphasis added)

2. Summary of Argument The rules governing discovery in this forum define its permissible bounds and establish, in particular cases, that there are right ways and wrong ways to undertake discovery.

It is the ironclad duty of the Board to resist attempts to engage in discovery beyond the legitimate bounds and by improper means; this is true regardless of how urgently it might be argued that the impermissible discovery is nonetheless "important," " crucial" or justified by subjective notions of fairness.

Discovery in NRC contested licensing proceedings is bounded, in the first instance, by the relevance rule: the proposed discovery request must be relevant to an admitted contention and, if litigation has been bifurcated, it must also be consistent with the bifurcation. Discovery that is not relevant is impermissible. Objections to irrelevant discovery must be sustained; the tribunal is without

discretion to order or permit discovery of irrelevant matters.

Even where otherwise relevant, discovery may nonetheless be severely restricted, or prohibited altogether. Discovery of expert witnesses and trial preparation materials are thus limited or prohibited. By definition, these limitations and prohibitions bear on discovery of otherwise relevant matters. Privileges against such discovery are created to serve higher goals (such as the integrity of the deliberative, investigative or trial preparation processes).

For this reason it is neither a negation of any privilege nor adequate grounds for ignoring'it that the proposed discovery might be thought to be otherwise useful or "important." It is the Board's duty (in contrast to an exercise of discretion) to bar discovery that intrudes upon a privilege or otherwise violates the discovery rules.

Much of the massively intrusive and burdensome, and frankly bizarre, discovery essayed by CASE in the form of the subpoenae at issue bears no rational connection to the theoretical edequacy of the CPRT Program Plan to achieve its stated purpose. That issue is at least 99% answered by the written word of the plan itself.a Much of the proposed 3

It bears mention that, in addition to having been provided with copies of the Program Plan (and all prior revisions), CASE has already been provided, gratis, with copies of the Action Plans (and all prior revisions),

c. .

discovery must therefore be quashed because it fails the initial hurdle of relevancy.

Irrelevance, while always fatal to discovery requests as a matter of law, sometimes imposes little practical burden on the party responding to discovery. Here, however, the severe practical consequences of permitting a frolic compel denial of any of the requested discovery that does not meet the test of relevance. At a minimum, responding to the CASE discovery as framed would necessarily divert CPRT personnel and resources and thereby delay, at a cost of millions of dollars, completion of the CPRT effort. At its worst, the unprecedented in-process intrusion demanded by CASE would so chill the investigative and deliberative process as to make successful completion of the effort impossible at any cost.

Such a result, claimed in no name other than CASE's copies of the Policies and Guidelines promulgated by the SRT, copies of the implementing procedures for the Quality of Construction and Quality of Design Programs, copies of the implementing procedures for the Stone &

Webster reanalysis efforts that form a central part of the piping and pipe support design efforts, interim outputs of that Stone & Webster effort, and the minutes of the SRT from its inception. CASE has also been provided with copies of all NCRs written as a result of CPRT inspections, as well as copies of the CPRT

" deviation reports" as a result of which the NCR wrs written. A literal reading of the subpoenae at 14.ue requires the production yet again of the very same materials! Such conduct is a plain abuse of the process.

5-t l

selective impatience,* would seriously undermine the policies of the Atomic Energy Act and the Commission's regulations.

CASE's discovery program also must be suppressed because it stands the expert and trial preparation discovery rules on their head. The apparent thrust of CASE's discovery is to find out what the experts retained to design and implement the CPRT Program Plan think about its blueprint, why they think so, and what materials have been generated thus far in the course of implementing the CPRT effort. The questions are expert opinion questions every bit as much as would be similar questions addressed to an accident reconstruction expert in a personal injury action, and the CPRT' materials plainly have been prepared in anticipation of ,

While CASE vigorously pursues this premature invasion of CPRT's on-going investigations, CASE has virtually disdained conducting discovery regarding those aspects of the CPRT Program Plan that have been completed, even though their results (and Working Files) have been available to CASE for some time. As of the date of this memorandum, 19 CPRT Action Plans have been completed.

Notice of availability of the Working Files for these Action Plans have been sent to CASE, the earliest having been sent April 4, 1986 (some seven months ago) and the most recent, November 20, 1986. To date CASE has propounded discovery as to only one of these completed Action Plans (I.a.4).

The impression inescapably created is that CASE is anxious to do whatever is least likely to advance (and most likely to interfere with) completion of these proceedings. Such a perverse goal, it need hardly be said, warrants no assistance fro.n this Board.

e C '

this very proceeding. CASE has neither made even the merest token of an effort to conduct expert discovery in the manner decreed by the rules, nor ever come forward with the barest hint of a justification for obtaining trial preparation materials.

The Applicants have previously articulated an inclination to permit CASE unfettered access to the CPRT working files and underlying data, once the process is completed. Whether or not Applicants ultimately adhere to that inclination, Applicants will not consent to CASE's invasion of CPRT's on-going efforts at this time. The proposed discovery is wholly at odds with applicable discovery rules, is not necessary to any legitimate discovery need, and has no apparent purposes other than to interfere with and obstruct completion of the CPRT process, purposes which plainly would not be deserving of the exercise of any discretion the Board might have to order the discovery sought.

ARGUMENT I. Discovery of In-Process CPRT Work Must Be Denied Applicants' overriding objection is that the subpoenae seek discovery of "in process" CPRT work while that work is

in process.5 That is an objection to the timing of discovery. Regardless of whether Applicants later decide to give CASE full discovery of CPRT's work when done, or CASE may be entitled at some point to that work product, Applicants vehemently oppose discovery of CPRT's work product until complete.

Applicants are aware of no precedent'for taking "in process" discovery - and few cases where such has ever been attempted. The case closest on point is Chemical Manufacturers Ass'n v. Consumer Product Safety Commission, 600 F.Supp. 114 (D.D.C. 1984). The plaintiff in that case sought to compel the agency, which had not finished its testing of a drug, to produce draft reports, progress reports data, a protocol of an experiment and other work in process.

s Examples of document requests propounded by the subpoenae that pointedly seek disclosure regarding specific aspects of CPRT's work include:

"How the homogenous work activities were established" Hansel subpoena.

"The October, 1985 'stop work' order and subsequent

'backfit' activities resulting therefrom." Hansel subpoena.

"The backfit of the CPRT to comport with the NRC comments in SSFR #13." Hansel subpoena.

Data concerning each of those requests will be contained in the working file compiled in connection with Action Plan VII.c.

The Court, while recognizing that completed scientific reports of the type being compiled were discoverable,8 held the "in process" work not to be discoverable:

"[N]one of the cases cited by plaintiff to distinguish exemption policy and legal documents from disclosable scientific and factual papers

. require disclosure while the deliberative process is in mid-stream. It may be that criticism of the underlying data could improve the decisionmaking process, in the way that any peer review could sharpen the work product. But there is time enough for adversary testing when the Task II report is published. It is also immediately apparent how an organization like CMA could delay and disrupt any process that might culminate in costly regulation of a profitable product, if it were provided with predecisional documents like those that the CMA seeks for its Panel. Experts do, after all, disagree. Where a government regulatory body is moving rapidly to reach a decision about whether products used by children cause cancer, agency scientists may, for example, discuss hypotheses which have not matured, and can be effectively shared only with peers in regular and confidential communication. For example, disclosure of an internal hypothesis or-the data related to its formation followed by a demeaning attack on that hypothesis before the author has finally formed a conclusion would have an obvious chilling effect on the persons still in the process of forming the opinion, and those who follow in the same process. The scientist whose work was assailed would not be able to make a defense by pointing to a finished product, but would be forced to endure the embarrassment of premature criticism . . . .

(S]cientists should be able to withhold nascent 6

The Commission argued against disclosure under Section (b)(5) of the FOIA, 5 U.S.C. 6552(b)(5), which exempts from disclosure " inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the

agency."

\ - _ -._ __

thoughts where-disclosure would discourage the intellectual risktaking so essential to technical progress. Moreover, the plaintiff in this case need delay its parallel process for only a few weeks more, after which, the Commission indicates, the documents sought will be forthcoming."

600 F.Supp. at 117-118-(emphasis added) (footnotes omitted).

To much the same effect is In re LTV Securities Litigation, 89 F.R.D. 595 (N.D. Tex. 1981). There, Judge (now Circuit Judge) Higginbotham rejected the plaintiffs' attempt to take discovery in a securities fraud class action from one Womencraft, a Special Officer (who was an attorney) retained by the corporate defendant's Audit Committee

, pursuant to a consent decree ending an injunctive action brought by the Securities and Exhange Commission. The Special Officer role included both investigating practices '

possibly violative of Securities and Exchange Commission regulations and determining how to bring any violative practices into conformity with those regulations. The Court concluded that the Special Officer's work deserved to remain confidential because:

"The class' discovery of Wozencraft's work would have immediate adverse impact on the ongoing investigation of LTV. Extensive deposition testimony and duplication of requested documents would necessitate days, if not weeks, of preparation. The efforts of Wozencraft and his staff during this period would not be devoted to fulfilling the mandate of the Final Judgment, but would be directed at

o -

providing litigants with a more expeditious and economical route to information otherwise available."

89 F.R.D. at 618-19.

In short, LTV recognizes the principal that people can do their work or respond to extensive discovery requests,7 but cannot do both simultaneously. CASE effectively says it is more important for CASE to take discovery of CPRT now than for CPRT to do its work. Applicants disagree.

Discovery is not the goal of this proceeding. The goal of this proceeding is to determine whether CASE's single admitted contention has merit, and to make that determination as soon as hearing can be had on a complete record. Discovery scheduling must not interfere with that goal. "In process" discovery thus must be denied because it is absolutely essential that CPRT have the chance to focus its energies on fixing what needs fixing, testing what needs testing, and doing anything else it needs to do.

"In process" discovery should also be denied for the reasons articulated in Chemical Manufacturers. Those carrying out the CPRT effort continually are engaged in an evolving process of molding the CPRT plan, gathering and analyzing data, exchanging views and arranging any necessary 7

LTV also justifies the creation of the Special Officer privilege on the ground that discovery of such special officers would deter corporations from engaging "in this sort of self-investigation." 89 F.R.D. at 619.

repairs. Discovery at this time threatens to chill that creative intellectual work. The evolution of CPRT's scope and evaluation of its findings require constant exchange, testing and criticism of ideas. Affording CASE an opportunity to attack CPRT's tentative evaluations, hypotheses or conclusions would poison that atmosphere.

This disruption of CPRT's work, moreover, would serve no useful purpose. Interim hypotheses developed by CPRT bear no necessary relation to the final work product, and in any event may be discoverable once CPRT finishes its work. Nor has CASE ever articulated a reason for taking discovery of CPRT "in process," other than the frivolous suggestion that CASE should become a contributor to the CPRT process. See, e.g., Tr. 24247. An intervenor has no proper supervisory role over plant construction or testing. That Job belongs to the Staff. Cf. Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-316, 14 NRC 1111, 1113 :1981) (perceived need to monitor Staff's progress does not authorize Licensing Board to exercise sua sponte authority).

"In process" discovery is unprecedented and would be harmful to the conduct of these proceedings. It would not advance any useful purpose. It has several times previously been rejected by this Board and it should and must be rejected once again.

12 -

II. The Proposed Discovery Conflicts With Rule 26(b)(4), Which Decrees How Discovery Is To Be Taken Of Experts CASE's discovery plan also is improper because it conflicts with rules governing discovery from experts As stated at the outset, after CPRT's work is done Applicants will consider withholding this objection to extraordinary expert witness discovery. Because the requested discovery ,

seeks expert discovery prematurely, however, Applicants must press the objection now, first and foremost so that CPRT's work can proceed efficiently.

Federal Rule of Civil Procedure 26(b)(4), which is applicable in NRC licensing proceedings,' provides for discovery of facts known and opinions held by experts as follows:

"(A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such 8

See e.g. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490 (1983); Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-83-27A, 17 NRC 971, 976-80 (1983); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-85-38, 22 NRC 504 (1985).

k _ - - - - - - - - - - - - - - - - - - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.

(B) 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. . . upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means."

(emphasis added).

Discovery from experts is to be conducted only in accordance with Rule 26(b)(4). E.g., Virginia Electric &

Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 406 (E.D. Va. 1975). The subpoenae at issue are defective because in the absence of exceptional circumstances, CASE seeks discovery of expert opinions ~(by way of deposition and document production) of experts not presently anticipated to be called as witnesses at trial.

A. The Subpoenae Call for Discovery of Expert Opinions i At the outset, it must be observed that CASE's proposed discovery can only be characterized as discovery of expert opinions. The scope of authorized discovery is the theoretical adequacy of the CPRT Program Plan as such.'

The subpoenae are not so limited. They also seek documents and reveal an intent to ask questions at 14 -

There'is nothing factual about that question. The question is analogous to examining the protocol of a proposed scientific experiment. Questions can be raised about the scope, methodology or assumption of the experiment: those questions call solely for expert opinion.

The " expert" nature of testimony (or documentary information) on CPRT Program Plan adequacy questions is thus clear, and completely disposes of the " expert"/ fact witness characterization issue.

Because the subpoenae also seek information concerning CPRT's implementation work, it is useful to explain why testimony concerning that work also must be characterized as expert testimony. The short and plain explanation is that the entire CPRT effort will serve as the factual basis for opinions concerning the adequacy of the construction, design and testing of CPSES, obviously an area of expert opinion.

Any information developed through implementation of the CPRT Program Plan therefore pertains to those expert opinions, was developed in the course of litigation preparation, and is discoverable only as provided for by Rule 26(b)(4).

CASE has previously advanced two arguments against this position. The first runs roughly as follows: Rule 26(b)(4) deposition, relating to how CPRT is implementing its Program Plan. The subpoenae clearly are objectionable to the extent they raise implementation questions. See Point IV, below.

l A -

applies only where the expert has been retained solely for litigation purposes; the work of CPRT also is expected to help fix problems with CPSES and thus help Applicants comply with on-going licensing requirements; CPRT personnel therefore have not been retained solely for litigation and discovery may be taken freely of them. See Tr. 24294.

The most basic problem with this argument is that its major premise misstates the law. It is not the law that Rule 26(b)(4) governs only where an expert is retained solely for purposes of litigation. Experts are treated as such for discovery purposes even if they are employed for a dual purpose (e.g., litigation preparation and product improvement):

"There is no reason a party should be deprived of the protection of Rule 26(b)(4)(B) merely because he or she economically makes double use of expensive expert consultation. Moreover, a contrary holding would undermine the important public policy of encouraging defendants to repair or improve their products without fear that such actions will later be used against

them in a law suit . . . ."

Hermsdorfer v. American Motors Corp., 96 F.R.D. 13, 15 (W.D.N.Y. 1982). An individual brought in from the outside to evaluate a matter is treated as a Rule 26(b)(4) " expert" so long as he was "primarily retained by (a party] in connection with the present litigation." United States v.

Hooker Chemicals & Plastics Corp., Slip. Op., C.A. No.

\

79-990C (W.D.N.Y. Sept. 11, 1986) (emphasis added) (copy attached as Exhibit 1).

The second defect in the argument is that Rule 26(b)(4)

. procedures cannot be circumvented merely because the expert work may also assist with compliance efforts.18 Rule 26(b)(4) has been held applicable in a nuclear regulatory proceeding to preclude discovery of work performed by a consultant after the prospect of litigation became apparent although that consultant had been hired before litigation started, although that consultant had assisted Applicant pre-litigation in meeting regulatory requirements, and although even his litigation-related work could be of aid in meeting regulatory requirements. As the Licensing Board in that case observed, the test "is whether, in light of the documents and factual situation in a particular case, the experts and their information can fairly be said to have been obtained or acquired because of the prospect of litigation." Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-85-38, 22 NRC 604, 614-15 (1985),

quoting In re Sinking of Barge " Ranger I", 92 F.R.D. 486 489 (S.D. Tex. 1981).11 Applicants might well have been engaged l

l 18 CASE advanced this notion in its unsuccessful Motion to Compel CASE's November 15, 1985 Interrogatories (Jan.

10, 1986) at 12.

tt Also analogous is the situation of insurers who routinely evaluate claims but also become involved in l

17 -

1

in compliance efforts even if there had been no litigation, though the nature, scope and composition of such efforts in an uncontested proceeding is a matter of speculation. The CPRT organization as it exists today, however, was assembled specifically and expressly with a view toward this litigation.

The second argument advanced by CASE is that those implementing the CPRT program are " actors and viewers" and therefore not " experts" for Rule 26(b)(4) purposes. See CASE Motion to Compel Responses to CASE's November 15, 1985 Interrogatories (Jan. 10, 1986) at 10 n.6 and accompanying text.

Experts retained in anticipation of litigation are not treated as ordinary witnesses simply because those experts may have made factual observations in the course of performing research needed to formulate their opinions.

Certainly, the authorities cited by CASE in its January 10, litigation regarding those claims. It has been held that at the point "the probability of litigating the claim is substantial and imminent," work performed by claims adjusters must be treated as trial preparation material for Rule 26(b)(3) purposes. Carver v. Allstate Insurance Co., 94 F.R.D. 131, 134 (S.D. Ga. 1982). To allow unfettered discovery of such materials would unduly haraper trial preparation activities and unfairly allow a party to reap the benefits of his adversary's diligence. This policy underlies Rule 26(b)(4) as well, and commands treating CPRT's work product according to the rules for expert discovery even if that work yields incidental benefits to Applicants' compliance efforts.

'1986 memorandum do not go so far.12 Moran v. Pittsburgh-Des Moines SteellCo., 6 F.R.D. 594, 596 (W.D. Pa. 1947) says only that factual questions may be posed to an expert witness who: (i) is employed " regularly" by the adverse party; (ii) is the " managing agent" of a department; and

~

(iii) decided "all matters . . . .

in the creation of the object from which the action arises." Broadway &

Ninety-Sixth Street Realty Co. v. Loew's, Inc., 21 F.R.D.

347 (S.D.N.Y. 1958) held only that the witness, who was president of and major stockholder in plaintiff corporation and who had been a " prime actor in the events involved in

-this litigation since 1931, or before," could be asked opinion questions on those matters as to which he had been a primary actor for more than twenty years.

Those persons substantively affiliated with CPSES or Applicants only through the CPRT effort are not " actors and viewers" within the meaning of those cases. Applicants created CPRT well after this litigation began.ta Applicants did so expressly to address issues raised in the course of this proceeding. Thus, eight of the subpoenaed individuals

-- Messrs. Tyler, Hansel, Levin, Mallanda, Rushwick, t

12 Nor are Applicants aware of such authority.

13 i

Applicants filed their application for an operating license in 1978; CASE filed its petition for leave to intervene in 1979; hearings on CPSES construction issues i

began in 1981. CPRT came into existence late in 1984.

I

t

- - - . - - ~ . - - - . , ~ . _ - - - . - - - . - . _ - , . - , _ . - - . - - - - , - - - , , - -

Brabizon, Buck and Wise 1* --

were brought in from the outside after this litigation began expressly for the purpose of assisting in the litigation. Each was hired by the CPRT project. Each, with the exception of Mr.-Tyler, remains an outside consultant, holds no title with TUGCO or any other Applicant and has no connection with any of the Applicants other than through CPRT.15 Indeed, the protections of Rule 26(b)(4) apply,even to information acquired by a general employee of a party while specially assigned to a matter for litigation-related reasons. In Seiffer v. Topsy's International, 69 F.R.D. 69 (D.Kan. 1975), for example, discovery was sought of a defendant's employee who had been assigned to review papers relating to the subject matter of the lawsuit. His special assignment came about only after the matter was in litigation. With respect to that subject matter, therefore, the employee had been " specially employed" in anticipation of litigation and was required to be treated as an expert from whom discovery could be taken only according to Rule 26(b)(4). See also Advisory Committee Note to Rule 26(b)(4)

(1970 amendment) (classifying as a non-expert one "who is 14 Mr. Wise no longer works for CPRT.

15 Mr. Tyler originally was employed by CPRT through an incorporated consulting firm of which he was a principal. That corporation subsequently dissolved for reasons totally unrelated to Tyler's CPRT work.

20 -

simply a general employee of the party'not specially employed on the. case").

'B. CASE Must Serve Interrogatories Before Taking Other Expert Discovery Since what is at issue is expert opinion discovery, CASE must follow the procedures of Rule 26(b)(4). It has not done so.

Expert discovery cannot even begin until it is known who the expert witnesses will be. E.g., Kozar v. Chesapeake &

Ohio Railway, 320 F.Supp. 335 (W.D.Mich. 1970), aff'd in part, vacated in part and remanded on other grounds, 449 F.2d 1238 (6th Cir. 1971). As pointed out by the Advisory Committee Note to Rule 26(b)(4) (1970 amendment), judicial restrictions on expert discovery reflected a fear that one side will benefit " unduly" from the other side's preparation. "The procedure established in subsection (b)(4)(A) holds the risk to a minimum. Discovery is limited to trial witnesses, and may be obtained only at a time when the parties know who tneir expert witnesses will be." Yet CASE proposes to gather documents and take depositions from i

Applicants' experts even though CASE has not asked Applicants to identify who they expect to call as witnesses at any trial of CPRT Program Plan adequacy issues (or any other issue). Expert discovery cf Applicants at this early

~% -

y .

. . g ,-

v ~

k juncture + poses an obvious risk o'f precisely the-abuse of the discovery. process that Rule 26(b)(4) seeks to avoid.

4.

To ,the extent expert discovery may become proper, the

\

first s+ep would be to find out through interrogatories who the testifying experts will be, and'the' subject matter on T s which, and the substance of the facts'abdiopinions to which,

\*N , ?x the expert'is expected to testify. Rule 26(b)(4)(A)(i).

s. \

This interrogatory discovery must be done before moving for depositio'n of experts ( o r ,- he re , simply serving third party deposition'subpoenae). See, e.g., U.S. v. John R.-Piquette Corp., 52jf.R.D. 370, 372 (E.D. Mich. 1971).

CASE has not followed ,the rules. The required exnert discovery must stait at least until CASE does so.

is s

(

C. DocumentDiscoverh.andDepositions s Are Inappropriate Discovery of These Non-Testifying Experts Finally, taking depositions and document discovery from the experts subpoenaed;is improper because they are l "non-testifying", experts. Any discovery frominuch experts P

may be had only upon a showing of " exceptional'

(

l circumstaneps'." No such showing can be made here.

!  % \

[ The experts whom CASE seeks to depose are "non-testifying experts" for Rule 26(b)(4) purposes, at i least at this s time. The simple reason is that Applicants

[ have not stated, and in fact do not know, who their trial r

\

\ \

s A

l

witnesses cn1 CPRT Program Plan adequacy issues.would be if hearing were ever held on that issue. Tr. 25238-39. Until Applicants so decide and designate, all experts must be classified as non-testifying. See, e.g., In re Agent Orange Product Liability Lit., 105 F.R.D. 577, 580 (E.D.N.Y. 1985)

(Rule 26(b)(4)(B)' applies where " defendants apparently have not yet' decided whether they will call these (experts] at trial"). This rule of construction is necessary to preserve the discovery distinction between testifying and

'non-testifying experts. If discovery were allowed to be taken of experts before designation of trial witnesses, it is inevitable that many experts who are deposed ultimately would not be called upon to testify at trial. That result would be at odds with Rule 26(b)(4)(B), which contemplates that non-testifying experts will rarely become subjects of discovery.18 Discovery from non-testifying experts is barred because, among other things, such discovery "will not narrow the issues nor eliminate surprise at trial." Public Service Co.

of New Hampshire (Seabrook Station, Units 1 and 2),

16 Indeed, Rule 26(b)(4)(B) has been held to preclude the other party even from finding out the identity of its adversary's non-testifying experts absent such special circumstances. Ager v. Stormont Hospital and Training School for Nurses, 622 F.2d 496, 502-03 (10th Cir.

1980); Perry v. W.S. Darley & Co., 54 F.R.D. 278 (E.D.

Wis. 1971).

LBP-83-17, 17 NRC 490, 497 (1983). See also Advisory Committee Note on Rule 26(b)(4) (1970 amendment). The standard for discovery thus is " exceptional circumstances":

1.e., circumstances "under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means." Advisory Committee Notes on Rule 26(b)(4) (1970 amendment); Delcastor, Inc. v. Vail Associates, Inc., 108 F.R.D. 405, 409 (D. Colo. 1985)

(exceptional circumstance is " basic lack of ability to discover the equivalent information"). The showing of exceptional, circumstances is recognized to be a " heavy burden" on the party seeking discovery. Hoover v. United States Dept. of the Interior, Gil F.2d 1132, 1142 n.13 (5th Cir. 1980).

CASE cannot meet that " heavy burden." The current subject of discovery is simply the CPRT Program Plan.

Applicants have made each revision of that plan, as well as all of the procedures issued for its implementation, available to CASE. There is little about the adequacy of the CPRT effort that cannot be gleaned from the Program Plan or these procedures. CASE is at liberty to retain its own experts to analyze the Program Plan, but is not entitled to take advartage of the work of Applicants' non-testifying experts to attempt to build CASE's position, at least where

e

• CASE has been provided with materials needed to analyse CPRT Program Plan adequacy.17 III. The Proposed Discovery Is Objectionable Under Rule 26(b)(3) and 10 CFR 42.740(b)(2)

To the extent CASE seeks production of documents from the twelve deponents, that discovery is barred by 10 CFR

$2.740(b)(2), which in relevant part reads:

" Trial preparation materials. A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (b)(1) of this section and prepared in anticipation of or for the hearing by or for another party's representative (including his attorney, consultant, surety, indemnitor, surety or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of this case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means."to 17 Nor are there any other " exceptional" circumstances within the meaning of Rule 26(b)(4)(B).

Comoare with Bailey v. Meister Brau, Inc., 57 F.R.D.

11 (N.D.Ill. 1972) (expert discovery allowed where non-testifying expert was only known expert).

18 This rule is similar to Rule 26(b)(3) Jed. R. Civ. P.

The federal rule accords the qualified immunity to documents " prepared in the anticipation of litigation or for trial by or for another "party or by or for that party's representative. . . The difference in wording between the federal and NRC rules is immaterial for this discovery dispute, since dccuments generated "by or for" CPRT plainly fall within Section 2.740(b)(2).

See Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-86-7, 23 NRC 177, 180 (1986) (under Section 2.740(b), barring discovery of

l l

The provisions of this rule "are straightforward and easily understood. . . In essence, if anyone prepares documents for a party in anticipation of litigation or for trial, documents so prepared are not discoverable except upon a showing of ' substantial need' and ' undue hardship.'"

Virginia Electric & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 410 (E.D. Va. 1975) (emphasis added).

See also In re International Systems and Controls Corp.

Securities Litigation, 693 F.2d 1235, 1238 (5th Cir. 1982)

(accountants' workpapers prepared in connection with litigation were within the trial preparation immunity because the accountants were representatives of a party).

t Any relevant documents called for by the instant subpoenae are trial preparation materials.t' They all constitute or relate to CPRT's work. CPRT was formed after this litigation began, in response to issues arising in this litigation, and has been charged by Applicants with the task of analyzing the quality of construction concerns raised in Contention 5.

All requested documents thus can be obtained only upon a showing of " substantial need" and " undue hardship." There evaluations performed to aid counsel in preparing for licensing hearing).

l' The great bulk of them relate to CPRT implementation, not adequacy, and are not discoverable at this time for that reason as well. See Part IV, below.

26 -

is certainly no " substantial need" for discovery of CPRT's working files in the cont 2xt of CPRT Program Plan adequacy litigation. It is thus premature to address the discoverability of those trial preparation materials until the matters to which they are addressed have been completed, at which time Applicants may well determine to interpose no objection to providing CASE accesc to the entire CPRT product. CASE of course will not have endured " undue hardship" by waiting. The only difference between seeing documents now and seeing them later is that if CASE waits it will look at comple te files, thereby obviating any need to go through the wasteful process of looking through files multiple times (as might be the case if CASE searches the working files now and later sought to inspect the completed files). Fed. R. Civ. P. 26(b)(3) and 10 CFR $2.740(b)(2) bar CASE's discovery of trial preparation materials at least at this time.

IV. The Specific Requests Are Not Addressed To Matters Relevant To CPRT Adequacy Issues The final defect with the discovery at issue is one of relevance: many requests ask about matters simply irrelevant to CPRT Program Plan adequacy questions or are framed so broadly as to seek irrelevant as well as relevant information.

r . >

Discovery may not be had of irrelevant materials. 10 CFR $2.740(b)(1); Fed. R. Civ. P. 26(b)(1). Discovery normally may be taken only of matters falling within the fair parameters of the pleadings, because they are "the touchstone by which relevance is determined." Vilastor Kent Theatre Corp. v. Brandt, 18 F.R.D. 199 (S.D.N.Y 1955). In NRC licensing p..oceedings, this means that discovery may be taken only of matters placed in issue by admitted contentions, e.g., Allied-General Nuclear Services-(Barnwell Fuel Receiving and Storage Station), LBP-77-13, 5 NRC 489, 492 (1977),2o and, where litigation has been bifurcated.

only of matters relevant to the issue then deemed ripe for discovery. The Board's pronouncement at the August 18-19, 1986 hearing limits discovery to CPRT Program Plan adequacy issues and renders irrelevant and hence absolutely non-discoverable any request directed to anything other than those adequacy issues.

i l

28 It bears note in this regard that an intervenor is

" bound by the literal terms of its own contention,"

Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 505 (1986)

(emphasis added) (citation omitted).

1

. . i I

A. The Document Requests Because this phase of discovery is limited to CPRT adequacy issues, all requests for information regarding implementation of CPRT's Program Plan fail on relevancy grounds. It is axiomatic that the Program Plan could be quite adequate regardless of whether its implementation is or is not faithful to the plan or completely done. By a parity of analysis, the Program Plan could be implemented flawlessly and still, at least theoretically, be inadequate.

It necessarily follows that no fact found regarding implementation tends to require a conclusion one way or another as to program adequacy. As objectionable as the discovery regarding implementation is because it calls for in process discovery of developing expert opinions, such requests are also irrelevant and therefore improper.21 Yet a further group of requests fails on relevance grounds because it seeks discovery of CPRT personnel 21 Examples of " implementation" requests include:

"All preliminary assessments done in the electrical area to determine root cause and generic implications."

Rushwick, Wise, Mallanda subpoenae.

" Development of the action plans for the various ISAPS." Rushwick, Wise, Mallanda subpoenae.

"The day-to-day operation of the CPRT program, including the interface between the CPRT site activities and the project activities." Tyler subpoena.

, e

' decisions and related topics.za As Applicants previously have argued, who will implement the Program Plan and whether they have done, are doing or will do a good job, raise questions wholly. separate from whether the CPRT Program Plan is properly designed to assess whether CPSES safety-related components have been constructed properly. See Applicants' Response to CASE's Motion to Compel (Nov. 6,'1986) at 27-30.

Other categories of requests are so inartfully phrased as to be incapable of response, in addition to calling for wholly irrelevant materials. How, for instance, can a search sensibly be made for documents that relate to Mr.

Spence's " commitment"23 to compliance with safety requirements as reflected in his views on the adequacy of 22 "The removal of Monty Wise as Electrical Review Team leader." Counsil, Beck, Tyler, Streeter, Hansel subpoenae.

"The selection and evaluation process of ERC as the third-party reviewer." Counsil, Beck, Tyler, Streeter, Hansel subpoenae. (This request is improper also because as phrased it is incomprehensible and therefore fails to identify documents with reasonable specificity, 10 CFR 62.720(a).)

"The selection process used for personnel performing the third-party activities." Rushwick, Wise, Mallanda subpoenae.

23 The full request reads:

The " nature and depth" of [the witness'] commitment to compliance with NRC safety requirements as reflected in his views or the adequacy of the CPRT." Spence i I

subpoena.

the CPRT? Moreover, that question has nothing to do with the adequacy of the CPRT Program Plan itself. Whatever Mr.

Spence's inner motives, and whatever role he plays in the CPRT effort,24 it is the effort itself that will be dispositive of Contention 5.

Other requests fail on the ground of overbreadth but could be responded to if reasonably narrowed. For example, CASE's request that Mr. Counsil produce documents bearing upon his designed CPRT " interface and management responsibilities" is not objectionable. However, the request is objectionable to the extent it purports to extend to documents relating to Mr. Counsil's " staff" because he heads TUEC's nuclear division and " staff" could be read to include every TUEC employee working in any capacity on CPSES.25 Unlimited inquiries concerning the " safety significance evaluation program" and " collective evaluation program" (Counsil, Beck, Tyler, Streeter, Hansel subpoenae) likewise cut too broad a swath as written, but might be 2' Which is none, other than having created CPRT, having given it its charge, and being the recipient (on behalf of Applicants) of CPRT's output.

25 The full request is for documents concerning:

[The witness'] " interface and management responsibilities for the CPRT activities of [the witness] and his staff." Counsil subpoena.

e

• relevant to CPRT. adequacy issues if limited to inquiry concerning how those programs are designed to work.as The requests for documents concerning the SRT " decision process and the process by which it controls CPRT" (Beck, Tyler, Streeter, Hansel subpoenae) likewise are

' .mbjectionable if limited to how those processes are i designed to work, but are objectionable to the extent, if any, intended to-sweep up documents bearing upon how these matters are being handled in the CPRT implementation process. That objection also applies to requests concerning interfaces among various programs and programs or procedures for tracking data generated in the course of implementing the Program Plan.27 26 The following also fall into the same category:

"The interface between the QA/QC team and the CPSES Project." Hansel-subpoena.

"The responsibilities and organization of the Overview Quality Team (OQT)." Streeter subpoena.

"The interface between the OQT and the SRT."

Streeter subpoena.

The witness' " role in design and implementation of the CPRT." Buck subpoena.

"The responsibilities and tasks [the witness] has now and has had regarding the development and implementation of the CPRT program." Hansel subpoena.

27 Falling into this category are the followingt "The interface between the design review program, j the construction adequacy program, and the safety i

i Two document requests fail because they seek discovery comparing the CPRT Program Plan and efforts (characterized by the subpoenae as " reinspection" efforts) undertaken at other nuclear generating facilities:

"The differences between the' Comanche Peak reinspection program and the Braidwood reinspection program, including an explanation of how the implementation flaws identified in the Braidwood program were corrected in the Comanche Peak program." Hansel subpoena.

"Any evaluation [the witness] has made.for Applicants of the differences between the CPRT program and the reinspection effort (IDVP) for Diablo Canyon." Buck subpoena.as The relevance of another operating licensing proceeding to this one is remote at best. Discovery of that issue should not issue, because of the tremendous attendant burden and significance evaluation program." Levin subpoena.

"The program that TERA uses to track any identified construction or document defects, deficiencies, and deviations discovered in the course of doing its design review." Levin subpoena.

"The process by which the CPSES project tracks and trends all unidentified deficiencies, deviations, design observations, or 'unsats' of ISAP check lists." Counsil subpoena.

28 This request is objectionable also because Dr. Buck served as a member of the Appeal Board that rendered a decision in the Diablo Canyon matter. It is well settled that a judge (or administrative law judge) may not be examined concerning a case or other proceeding held before him. United States v. Morgan, 313 U.S. 409, 422 (1941) (Frankfurter, J.), citing to Fayerweather v.

Ritch, 195 U.S. 276, 306-07 (1904) and Chicago, B. & Q.

Ry. Co v. Babcock, 204 U.S. 585, 593 (1907).

potential confusion of litigating two or more procedures for validating design and/or construction of a nuclear generating facility. "[W] hen the requests approach the outer bounds of relevance . . . ., the Court must then weigh that request with the hardship to the party from whom discovery is sought." Carlson Companies, Inc. v. Sperry and Hutchinson Co., 374 F.Supp. 1080, 1088 (D. Minn. 1974),

citing to, Jones v. Metzger Dairies, Inc., 334 F.2d 919, 925 (5th Cir. 1964), cert. denied, 379 U.S. 965 (1965); Robbins

v. Camden City Board of Ed., 105 F.R.D. 59, 55 (D.N.J.

1985).

Finally, the request for documents on the subject of CPRT's adequacy "to respond to all questions about the Comanche Peak Facility" (Spence subpoena) wholly misconstrues or misrepresents the scope of the matters in issue in this proceeding, and thus is wildly overbroad.

CASE is not empowered to conduct a general inquiry into CPSES; its admission as an intervenor does not entitle CASE to ask questions simply to satisfy its curiosity. The only questions CASE properly may ask, and the only questions Applicants need answer at this stage, are those relevant to the generic adequacy of the CPRT Program Plan.

B. The Scope of Oral Examination The notices of deposition also signify an intent to conduct oral examination of the witnesses no less broad than the document requests. Recognizing that a court has the discretion to decline to rule on oral examination questions except on a question-by-question basis, the rule against irrelevant discovery applies equally to oral examination.

The Applicants therefore suggest that the Board include within the scope of its ruling an order prohibiting oral examination into the same topics as to which document production has been denied.

V. The Document Requests Are Improper Because Not Framed With " Reasonable Particularity" Rule 34(b), Fed. R. Civ. P., and 10 CFR $ 2.741(c) each states that a document request "shall set forth the items to be inspected either by individual items or by category, and describe each item and category with reasonable particularity" (emphasis added). While the meaning of

" reasonable particularity" depends upon the facts and circumstances of each case: "A blanket request for production of all ' books, documents, papers and records which are relevant and relate to the subject matter of [an]

examination . . .' is obviously without merit." Illinois Power Co. (Clinton Power Station, Unit Nos. 1 and 2),

ALAB-340, 4 NRC 27, 34 (1976), quoting, 4A Moore's Federal Practice, 2d ed. 134.67. The respondent-likewise is entitled to greater specificity than a request for "any and all documents . . ." Richland Wholesale Liquor v. Jos. E.

Seagram & Sons, Inc., 40 F.R.D. 480, 481 (D.S.C. 1966).

Also improper are requests "not bounded by time, by scope, or by a reasonable category." International Commodities Corp. v. International Ore & Fertilizer Corp., 30 F.R.D. 58, 61 (S.D.N.Y. 1961). See also Mitsui & Co. (U.S.A.) Inc. v.

Puerto Rico Water Resources Authority, 79 F.R.D. 72, 82 (S.D.N.Y. 1978) (test is whether reasonable man would know what things or documents are called for); accord, Mallinckrodt Chemical' Works v. Goldman, Sachs & Co., 58 F.R.D. 348, 354 (S.D.N.Y. 1973).

CASE's document requests framed in terms of "all documents . . . that reter or relate in any way to . . ."

are improper because they fail to provide the " reasonable particularity" necessary to permit intelligent response to those requests.

CONCLUSION For the foregoing reasons, the instant subpoenae must be quashed in their entirety. In the alternative, the subpoenae must be quashed to the extent they seek discovery

of materials not relevant to CPRT Program Plan adequacy issues.

R llysubftted,

()%

w

{

Thomas G. Dig $ n, Jr.

R.K. Gad III /

William S. Eggeling Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 Robert A. Wooldridge Worsham, Forsythe, Samples

& Wooldridge Suite 3200 2001 Bryan Tower Dallas, Texas 75201 (214) 979-3000 Attorneys for the Applicants Dated: December 5, 1986

.l

. s 00(FrifP niiHL CERTIFICATE OF SERVICE

,86 DEC 11 P1 :33 0FF!n 1 ,

I, Robert K. Gad III, one of the attorneys for theDApplicantsjdj BFJNCa herein, hereby certify that on December 5, 1986, I made service of the within " Memorandum of. Law in Support of Motion to Quash Subpoenae", by mailing copies thereof, postage prepaid, to:

Peter B. Bloch, Esquire Mr. James E. Cummins Chairman Resident Inspector Administrative Judge Comanche Peak S.E.S.

Atomic Safety and Licensing c/o U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory P.O. Box 38 Commission Glen Rose, Texas- 76043 Washington, D.C. 20555 Dr. Walter H. Jordan Nancy Williams Administrative Judge Cygna Energy Services, Inc 881 W. Outer Drive 101 California Street, Suite 1000 Oak Ridge, Tennessee 37830 San Francisco, California 94111 Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Stuart A. Treby, Esquire Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S. Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C. 20555

Renea Hicks, Esquire Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel P.O. Box 12548, Capitol Station U.S. Nuclear Regulatory Commission Austin, Texas 78711 Washington, D.C. 20555 Anthony Roisman, Esquire Mr. Lanny A. Sinkin Executive Director Christic Institute Trial Lawyers for Public Justice 1324 North Capitol Street 2000 P Street, N.W., Suite 611 Washington, D.C. 20002 Washington, D.C. 20036 Dr. Kenneth A. McCollom Mr. Robert D. Martin Administrative Judge Regional Administrator 1107 West Knapp Region IV Stillwater, Oklahoma 74075 U.S. Nuclear Regulatory Commission Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 Elizabeth B. Johnson Geary S. Mizuno, Esq.

Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P.O. Box X, Building 3500 U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Maryland National Bank Bldg.

Room 10105 7735 Old Georgetown Road Bethesda, Maryland 20814 Ms. Billie P. Garde Midwest Office 3424 N. Marcos Lane Appleton, Wisconsin 54911 s

= m Robert K. Ggd III l

l l

PAGE 2

,, 2ND CASE of Level 1 printed in FULL forcat.

UNITED STATES OF AMERICA; THE STATE OF NEW YORK, and UDC-LOVE CANAL, INC. , Plaintif f s v. HOOKER CHEMICALS &

PLASTICS CORPORATI0t.; HOOKER CHEMICALS CORPORATION; OCCIDENTAL PETROLEUM INVESTMENT COMPANY; THE CITY OF NIAGARA FALLS, NEW YORK; NIAGARA COUNTY HEALTH DEPARTMENT; and THE BOARD OF EDUCATION OF THE CITY OF NIAGARA FALLS, Defendants No. CIV 990C UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK Slip Opinion September 11, 1986, Decided COUNSEL:

UNITED STATES DEPARTMENT OF JUSTICE, Environmental Enforcement Section, Land and Natural Resources Division (BARRY S. SANDALS, ESG., Of Counsell, ROBERT ABRAMS, ESG., Attorney General (EUGENE MARTIN-LEFF, ESG., and JUDITH KIMMERLING, ESG., Assistant Attorney General, of Counsel), for Plaintif fs. '

PIPER & MARBURY (THOMAS H. TRUITT, ESG. , of Counsel), for Defendants.

OPIN10NBY: CURTIN OPINION:

SUPP. ORDER 25 This motion arises out of the United States' attempt, pursuant to Rule 30 of the Federal Rules of Civil Procedure, to take the sworn deposition of Dr. Marvin Legator CLegatorJ on July 30,1985. n1 Occidental Chemical Corporation LOCC), formerly Hooker Chemical & Plastics Corporation [HookerJ, has opposed this discovery request and has moved for a protective order pursuant to Rule 26(b)(4)(B) or, in the alternative, for an order deferring compliance with such discovery reauest until the United States complies with certain of OCC's discovery requests. We United States opposes OCC's motion. Rule 26(c) and (d).

n1 The United States also requested Dr. Legator to produce and deliver-certain documents pursuant to Rules 30(b) and 45(b) of the Federal Rules of Civil Procedure.

The pertinent facts of this case are as follows. In early 1980, the United States commissioned Dr. Dante Picciano and his Biogenics Corporation to conduct a chromosome study of Love Canal area residents. Dr. Picciano submitted a report of his findings (the Picciano Study) to the United States on May 5,1980. n2 Approximately ten days later, James W. Moorman, counsel for the United States, informed OCC by letter of Dr. Picciano's findings and demanded that OCC agree to finance a follow-up chromosome study and temporary relocation of certain Love Canal area residents (Item 273, Exh. 3). Af ter the substance of the Picciano study became public, Donald L. Baeder, President of Hooker Chemical Company, responded to the United States' letter (Item 273, Exh. 41. Baeder's letter, dated May 17,1980, said, in part, that:

LE)XIS NE)XIS LE)XIS NEXIS

PAGE 3 O o Slip Opinion Hooker is willing to cooperate with the EPA In addressing this issue, even though Love Canal has not been under our control for more than 27 years and we deny any legal liability. As a matter of fact, we have already started our own investigations and analysis using the best experts available. We will keep you advised of our progress in these investigations and look forward to your prompt reply.

Mr. Baeder also enclosed with his letter a copy of a Hooker press release, also dated May 17, 1980, which elaborated on the company's ef forts in studying the Picciano findings

• Hooker's own m2 dical and environmental staff as well as outside consultants are leaving no stone unturned to obtain a reliable fact base on Love Canal. Mr.

Baeder further stated, "We are prepared to make available our own staff as well as independent medical and genetic experts to work with the EPA to resolve this matter as quickly as possible."

Id.

n2 The Picciano Study noted that chromosomal abnormallties were observed in 11 of 36 Love Canal residents examined. It cautioned, however, that "in the absence of a control population, prudence must be exerted in the interpretation of such results."

Two days later, Toxicologist Dr. Marvin Legator, who had identified a

" potential expert" by OCC on May 16, was retained by the company (Item 280, affidavit of Steven K. Yablonski CYablonski Affidavit], PS). n3 n3 Dr. Legator had been hired by OCC/ Hooker to conduct toxicological studies of the company's chemicals on at least one prior occasion. See Item 273, Exh. 5.

Thereafter, on May 21, 1980, partially as a result of the anxiety precipitated in the Love Canal community by the publication of the Picciano Study, United States President Jimmy Carter issued the so-called "second emergency declaration," authorizing federal financing for what ultimately became the permanent relocation of hundreds of f amilies f rom the Love Canal area.

In June and July of 1980, OCC counsel advised counsel for the United States that the company would not produce the Legator report regarding the Picciano Study because this document was protected as " attorney work product" (Item 273, Exh. 6) and " clearly exempt f rom discovery" (id, at Exh. 71. Fu110 wing, in the July 26, 1980, edition of The Washington Post and July 27, 1980, edition of The Buf falo News, Dr. Legator was quoted as being of the opinion that the results of the Picciano Study "Will stand up to any scrutiny" (Id. at Exhs. 8 and 9). The same edition of the Post also reported Dr. Legator as saying that criticisms of Dr. Piciano's techniques were "a lot of bunk." According to the August, 1980, issue of Science, Dr. Legator " disputed" certain " technical criticisms" about the Picciano Study made by others (1d. at 10). On September 30, 1980, The Niagara Falls Gazette quoted Dr. Legator as saying that he "would not at all discount CPicciano'sJ findings" (1d. at Exh. 11).

Finally, in the spring of 1981, Dr. Legator spoke with Dr. Adeline Levine, Associate Professor of Sociology at the State University of New York at Buffalo, who was then writing a book about the Love Canal. Dr. Levine's book, entitled LEXIS NEXIS LEXIS NEXIS

PAGE 4 Slip Opinion Love Canal: Science, Politics, and People, was published in 1982 and included a description of her conversations with Dr. Legator about the validity of the Picciano Study fid. at Exhs.12-15) .

OCC now contends that, pursuant to Rule 26fb)(4)(B) of the Federal Rules of Civil Procedure, the United States should not be allowed to depose Dr. Legator.

It moves for a protective order on several grounds.

First, OCC argues that Dr. Legator was retained by the company in connection with the instant litigation. See Item 255, Affidavit of Anthony L. Young CYoung Affidavit). The company states that, because it does not intend to call Dr.

Legator as a witness at trial, the discovery of facts known or opinions held by Dr. Legator is governed by the provisions of Rule 26(b)(4)(B) of the Federal Rules of Civil Procedure. Rule 26(B)(4)(B) provides, in pertinent part, that:

Ca3 party may discover facts known or opinions held by an expert who has been retained or specifically 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 . . . upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Cf., Inspiration Consolidated Copper Co. v. Lumbermens Mutual Casualty Co., 60 F.R.D. 205, 210 (S.D.N.Y. 1973).

OCC argues that the United States has failed to make the proper showing of

" exceptional circumstances" here. See, e.g., Barnes v. City of Parkersburg,100 F . R .D. 768, 769-70 (S.D. W. Va. 1984) . The company argues that, because the United States has already retained and/or consulted with at least nine experts concerning the Picciano study, it is not " impracticable" for the United States to obtain the information possessed by Dr. Legator by other means. See, e.g.,

Galella v. Onassis, 487 F.2d 986, 996 n.13(h) (2d Cir.1973) .

l Alternatively, OCC argues that if this court believes that the Legator i

deposition and document discovery should not be barred pursuant to Rule 26(b)(4)(B), the company contends that such discovery should be deferred pending the United States' response to OCC's "Second Set of Interrogatories and Related Document Requests" because many of the interrogatories and document requests relate directly to the Picciano Study and President Carter's emergency declaration. OCC says +. hat the interests of f airness and justice require that the company be given an opportunity to obtain and review the requested documents before any examination of Dr. Legator.

In opposition, the United States makes various arguments (Item 273). First, the United States claims that the taking of Dr. Legator's deposition is not premature or inappropriate (1d. at pp.2-10). Second, it argues the Legator Deposition is not precluded by Rule 26(b)(4)(B) . More specifically, the United l States contends that OCC has failed to carry its burden of showing that Dr.

Legator was retained by OCC "in anticipation of litigation or preparation for trial," Barclaysamerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir.1984), and that good cause for a protective order exists here. Cf., United States v. Hooker Chemicals & Plas tics Ccrp. , 90 F.R.D. 421, 425 (W.D.N.Y. 1981),

t The United States says that OCC cannot properly avail itself of the protection of Rule 26 because Dr. Legator was retained for an orainary i

LEXIS NEXIS LEXIS NEXIS

. , PAGE 3 Slip Opinion business purpose rather than for this litigation. The federal government premises this view upon OCC President Donald Raeder's statement in May of 1980 that the company was "willing to cooperate with the EPA" on the Picciano issue and promised to " keep [the United States] advised of Lits] progress in these investigations . . .."

According to the United States, the mere fact that this litigation has already commenced does not automatically establish a protected status for Dr.

Legator's work. Galambus v. Consolidated Freightways Corp. v. Titanium Metals Corp., 64 F.R.D. 468, 482 (N.D. Ind. 1974). Indeed, the United States urges that if Dr. Legator's opinions were formulated with pending litigation in mind, but with independent business reasons in mind as well, this material cannot qualif y for work product protection. See United States v. International Business Machines Corp., 66 F.R.D. 154, 169 n.25, 171, 175 n.34, 176 (S.D.N.Y.1974);

Soeder v. General Dynamics Corp., 90 F.R.D. 253 (D. Nev. 1980). But see Hermsdorfer v. American Motors Corp. , 96 F.R.D.13,15 (W.D.N.Y.1982) ; Scott Paper Co. v. Cellcote Co. , 103 F.R.D. 591, 594-97 (D. Me.1984) .

In this case, the United States urges that Mr. Baeder's offer to cooperate and share the fruits of its investigation of the Picciano study constitutes a non-litigation purpose which does not come within the ambit of Rule 26(b)(3) and (b) (4) . Accordingly, the United States urges that the Legator deposition is not entitled to protection from discovery. n4 n4 In its Surreply (Item 283), the federal government also argues that OCC's present position as to the reason Dr. Legator was retained is marked by significant inconsistencies. More specifically, it takes issue with the company's present position that because the representations made in Mr. Baeder's letter of May 17, 1980, were made solely in an "attcmpt to induce the government not to seek prellminary relief (Item 279, p.11), Dr. Legator cannot be properly deposed now. The federal government says that such " efforts to fend off litigation remedies" are not privileged. See, e.g., Grumman Aerospace Corp. v.

Ti tanium Metals Corp. , 91 F.R.D. 84, 90 (E.D.N.Y.1981) .

The United States also argues that this court should reject OCC's suggestion that the representations of the company president regarding the purpose of Dr.

Legator's hiring should not be determinative now. Yablonski Af finvit, P5; Item 279, Exh.5; Third Affidavit of Anthony L. Young [ Third Young Affidavit], PP2, 9.

Furtner, the United States takes issue with OCC's argument that its of fer to cooperate with the government in investigating the Picciano Study was merely an "of fer" which was never accepted. It argues that such contract law analysis has no place in this litigation where the only relevant question is whether, at the time the work was performad, OCC intended it to be protected.

The United States contends that, even if this court were to accept OCC's claim that its view of the function of Dr. Legator's work changed on May 21, 1980, with President Carter's emergency declaration, the evidence shows that Dr.

Legator was retained prior to that date, and, evidently, that he performed his review of the Picciano Study for OCC before that time. See Yablonsk1 Affidavit, P5; Third Young Affidavit, PP2-4.

Secondly, the United States argues that even if Rule 26(b)(4)(B) protection was originally available to OCC, it has since been waived by the company. The United States contends that this protection has been explicitly waived with LEXIS NEXIS LEXIS NEXIS -

.c a PAGE 6 Slip Opinion respect to the public statements which Dr. Legator has made to the press and Professor Levine. horeover, the United States says that these statements can be properly seen as a general waiver of the privilege surrounding the subject of Dr.

F . Supp. Legator's opinions 210, 212-13 regarding (S.D.N. the Picciano study. Peck v. United States, 514 Y. 1981), appeal dismissed, 680 F.2d 9 (2d Cir.

1982). In addition, the United States argues that, because OCC did not take the necessary precautions to protect against disclosure of its confidential communications with Dr. Legator, the company must now comply with the federal government's discovery requests. Suburban Sew 'N Sweep, Inc., v. Swiss-Bernina, 91 F.R.D. 254 (H.D. 111. 1981).

The United States also claims that any privilege which might have surrounded the opinions of Dr. Legator regarding the Picciano study has been waived by implication in accordance with the logic of Haynes v. Smith, 73 F.R.D. 572 (W.D.N.Y. 1976). See also Hearn v. Rhay, 68 F .R.D. 574, 581 (E.D. Wash. 19751.

The federal government says that by setting up the affirmative defense that the government's costs at Love Canal were improperly incurred because they were based, in part, upon the allegedly flawed Picciano study, the company implicitly waived the privilege surrounding the opinions of Dr. Legator. Alternatively, the federal government argues that the case of In re Sealed Case, 676 F.2d 793, all (D.C. Cir. 1982), extends the same doctrine to " opinion work product" where, as here, the societal interest in truth-seeking would be served thereby. n5 n5 The United States also states that, because OCC has repeatedly leveled charges of misconduct against the federal government regarding alleged

" mishandling" of the Picciano Study, the federal government is now properly entitled to the discovery of the findings and conclusions of OCC's own expert about this same study.

Another argument proposed by the United States is that Dr. Legator can be properly deposed as a first-hand " actor-viewer" of the Picciano laboratory, which conducted the disputed study. See, e.g., Tahoe Insurance Co. v.

Morrison-Knudsen Co., 84 F.R.D. 362, 364 (D. Idaho 1979) . Finally, the United States says that even if Dr. Legator's opinions do not fall within the ambit of Rule 26(b)(4)(B), he may be deposed because of the existence of exceptional circumstances In this case (Item 273, Exh. 20, Affidavit of Frode Ulvedal) . More specifically, the federal government claims that because Dr. Picciano's consulting firm has been disbanded and his laboratory facilities are evidently no longer in existence, Dr. Legator's deposition is now necessary and proper. n6 n6 According to the federal government, only five persons -- Including Dr.

5 and 6).-- It Legator had actually seen the Picciano slides and laboratory (Item 283, Exhs.

argues that Dr. Legator is "the only expert . . about whom OCC candeposition his say nothing about should beapermitted.

lack of objectivity." Id. at 37. As such, it argues that OCC disagrees and believes that the United States' position is neither supported by legal authority or the facts of this case. First, the company argues that Dr. Legator was retained solely In connection with this litigation.

Healy v. Counts, 100 F.R.D. 493, 496 (D. Colo. 1984); Hermsdorfer v. American Motors Corp., supra. Item 279, Exh. 4, Affidavit of Dr. Mitchell Zavon (Zavon Affidavit], PP2-3; Third Young Affidavit, PP2-4.

Second O covering dr.CC says that there was no express or implied walver of the privilege Legator's review of the Picciano Study because only OCC, as the LEXIS NEXIS LEXIS NEXIS

\

PAGE 7 e a. y Slip Opinion holder-beneficiary of the privilege, could have waived this privilege, and did  ;

not do so here. Healy v. Counts, supra. Accord, Durflinger v. Artiles, 727 F.2d 888, 891 (10th Cir.1984) . See also Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1222-23 (4th Dept. 1976); Lois Sportswear. U.S.A., Inc. v. Levi St rauss & Co. , 104 F.R.D. 103, 105-06 (S.D.N.Y. 1985). n7 n7 The federal government says, further, that Dr. Legator has an individual interest in confidentiality in this case and that he has, in fact, walved this interest.

Third, OCC says that the observations of an expert who views potential evidence in his expert capacity for use in connection with litigation is not I subject to discovery, especially where the evidence, as here, was viewed by others, including the United States' own employees. For the same reasons, OCC says that no exceptional circumstances can be found in the present case because of the lack of necessity. Item 279, pp.25-26.

In light of all of the above arguments, I find OCC's arguments to be persuasive here. First, I believe that the evidence in the record adequately indicates that Dr. Legator was primarily retained by Hooker in connection with the present litigation. See Young Af fidavit, P2; Yablonski Af fidavit, P5; Zavon Affidavit, PP2-3; Third Young Affidaylt, PP2-4, 9. I do not believe, as the federal government argues, that the letter of Hooker President Donald L. Baeder and the company press release dated May 17, 1980, warrant a different conclusion. Instead, I believe that those representations excerpted and relied on by the United States in the context of the present motion indicate that this court should hold, as did Judge Elfvin in Hermsdorfer v. American Motors Corp. ,

supra, that OCC is entitled to Rule 26(b)(4)(B) protection, absent a showing of exceptional circumstances. See also Grindell v. American Motors Corp.,108 F.R.D. 94 (W.D.N.Y. 1985).

I find that no such circumstances exist here. As both parties concede, the l

United States has consulted with a number of experts regarding the Picciano t

i Study. See Item 279, pp.23-26; Item 283, PP34-39. Because the evidence shows that several of these experts have, like Dr. Legator, seen both the slides and Picciano laboratory, I believe that the United States can adequately prepare its case without discovery of the Legator information.

Finally, I find that OCC has not waived its Rule 26(b)(4)(B) protection regarding the opinions of Dr. Legator, either explicitly or implicitly. As OCC correctly has pointed out, only the company, as holder of the protection at issue, can waive such protection. It is clear that a waiver of this type did not occur here. Healy v. Counts, supra.

l Therefore, OD s motion for a protective order is hereby granted.

So ordered.

JOHN T. CURTIN, United States District Judge.

LEXIS NEXIS LEXIS NEXIS