Town of Durham v. Federal Power Commission

71 Civ. 3993 (S.D.N.Y. October 26, 1971)

Where plaintiff requested certain documents in June, 1971 and FPC, "after considerable temporizing," announced they were available for public inspection in October, 1971, Commission must deliver file to New York for three day period of inspection by counsel for plaintiffs. Plaintiffs, however, have not made showing of prejudice sufficient to warrant postponement of hearing from scheduled date of November 9.

Counsel for Plaintiffs:
Barry H. Garfinkel
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
(212) 371-6000

Counsel for Power Authority of the State of New York:
Thomas F. Moore
Power Authority of the State of New York
10 Columbus Circle
New York, New York 10019
(212) 265-6510

Counsel for Federal Power Commission:
John D. Lane
Federal Power Commission
441 G Street, N.W.
Washington, D.C. 20426
(202) 386-3763

[1 ELR 20593]

McLean, J.:

ORDER

Plaintiffs motion for production of documents and other relief is disposed of as follows.

After considerable temporizing, the Federal Power Commission has finally made the flat statement that all documents requested by plaintiffs, as far as they exist, have now been made available to the public at the Commission's office in Washington. The Commission does not claim that any of these documents is exempt from public inspection pursuant to 5 U.S.C. § 552(b). As to plaintiffs' motion to require production, therefore, the only question remaining is whether plaintiffs' attorney shall be required to go to Washington to inspect these documsnts or whether the Commission shall be required to produce them for his inspection at the Commission's New York office during a period of three days to be fixed by the court. In view of the delay that has ensued since plaintiffs first requested these documents in June 1971, and in view of the imminence of the hearing before the Commission's Hearing Examiner, now scheduled to begin on November 9, 1971, the court deems it appropriate to direct that the documents be produced in New York as requested, by plaintiffs. There is no claim that the documents are so voluminous as to make it impracticable to send them to New York, and their presence here for only three days should not unduly inconvenience any member of the public who might wish to examine them in Washington. Accordingly, the court directs that the documents be produced by the Commission at its New York office for inspection and copying by plaintiffs' attorney on November 1, 2 and 3, 1971.

The Hearing Examiner has granted plaintiffs an extension of time to file their direct case until 45 days from the date that the documents are produced. This time shall run from November 3, 1971.

Plaintiffs also ask the court to direct the Hearing Examiner to postpone the entire hearing scheduled for November 9. The court is reluctant to interfere with the Examiner's conduct of the proceeding pending before him. Plaintiffs have not made a showing of prejudice sufficient to justify the court in doing so. The court believes that plaintiffs will have adequate opportunity between November 3 and November 9 to decide what use, if any, they will make of the documents ijn cross-examining witnesses at the hearing. This part of plaintiffs' motion is therefore denied.

So ordered.