March 28, 2018

VIA ECF 

The Honorable Justice Roberto A. Rivera-Soto (ret.)

Special Discovery Master

Ballard Spahr LLP 

210 Lake Drive East, Suite 200 

Cherry Hill, New Jersey 08002-1163

RE: Kimberlee Williams, et al. v. BASF Catalysts LLC, et al. 

Civil Action No. 11-cv-01754 (JLL) (JAD)

Dear Justice Rivera-Soto:

At the heart of this case is whether the Defendants committed fraud and 

fraudulent concealment when they made repeated, unqualified representations to 

claimants’ counsel to induce the dismissal of their clients’ cases that: (a) the Emtal 

talc product manufactured from the Johnson mine in Vermont did not contain any 

asbestos, (b) that there was no evidence to the contrary, and (c) no Engelhard 

employee had ever testified about asbestos in the talc. One of the tools constructed 

to perpetrate the fraud was the Ashton Affidavit, which Engelhard offered for the 

proposition that no study of the Johnson mine ever found asbestos in the mine. See 

Ex. A (5/8/1989 Affidavit of William H. Ashton).

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Before these representations were made and universally repeated to 

plaintiffs’ lawyers and courts around the country, Engelhard scientists—Dr. Glenn 

Hemstock (“Hemstock”), the head of Engelhard’s research and development 

division (“R&D”), and Engelhard geologist Peter Gale (“Gale”), who gathered 

samples from the Johnson mine and conducted studies—had in fact testified that 

Engelhard carried out a study on samples from both the Johnson mine ore and the 

finished milled product. See, e.g., Ex. B (3/16/83 Deposition of Glenn Hemstock) 

at 17:16-24, 73:21–74:16, 118:22–121:11; Ex. C (4/26/83 Deposition of Peter 

Gale) at 23:8–25:11; see also Ex. D (3/23/79 Engelhard R&D Memo) at 1 ¶ 2.

Hemstock, Gale, and Emil Triglia (“Triglia”), another Engelhard scientist who 

assumed Gale’s responsibilities at Engelhard, all testified that they discovered 

chrysotile fibers in samples from the Johnson mine ore and finished product. See, 

e.g., Ex. B at 17:16-24; Ex. C at 17:5–20:14, 22:14–23:8; Ex. E (4/7/83 Deposition 

of Emil Triglia) at 66:18–68:18. Triglia also testified about the Engelhard asbestos 

testing program. See, e.g., Ex. E at 55:24–56:17.

Dr. Hemstock’s, Mr. Triglia’s, and Mr. Gale’s 1983 deposition testimony—

concealed by BASF/Engelhard for over twenty years until unearthed following the 

testimony of David Swanson in 2009—not only proves the lie of the 

Engelhard/Cahill “no asbestos/no evidence/no testimony” defense, but establishes 

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a compelling need for the Court to now examine in camera documents listed on 

BASF Catalysts LLC’s (“BASF”) December 23, 2016 Privilege Log, in particular 

documents identified therein as PRIV001633, PRIV001672, and PRIV001786.1

See Ex. F (12/23/16 BASF Privilege Log). Documents on BASF’s privilege log 

such as these, that were authored by Engelhard’s internal R&D department 

scientists and described as “regarding talc testing,” may contain crucial, nonprivileged information on asbestos in the talc which was never identified or 

provided to asbestos claimants in post-Westfall litigation; even though 

interrogatories and document requests squarely asked if Engelhard employees had 

ever given testimony, and if the talc contained any asbestos.

Plaintiffs contend that these documents are not privileged. BASF’s privilege 

log does not provide adequate explanation to satisfy its burden of establishing that 

an attorney-client privilege exists for documents authored by Engelhard scientists 

“regarding talc testing”; its privilege explanation that these materials “reflect[ ] [a]

request for legal advice” is deficiently vague. See id. BASF also fails to establish 

that Engelhard sent the documents to inside counsel for the primary purpose to 

 

1 These documents are listed in Plaintiffs’ crime-fraud motion currently 

pending before Your Honor, but even more fundamentally, these documents are 

not entitled to privilege at all. 

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secure legal advice. More so, consistent with Your Honor’s rulings in other 

motions addressing the scope of the attorney-client privilege, even if some 

communication is privileged, the facts contained in the documents “regarding talc 

testing” are not. See Leonen v. Johns-Manville, 135 F.R.D. 94, 98–99 (D.N.J. 

1990).

We have conferred with BASF’s counsel both orally and in writing multiple 

times on this matter. They disagree with our position. We now place the issue 

before Your Honor.

STATEMENT OF RELEVANT FACTS

In 1983, Engelhard scientists Hemstock, Triglia, and Gale testified that 

Engelhard performed testing on both the talc ore extracted from the Johnson mine,

as well as the finished processed product. Asbestos was found in both. See, e.g., 

Ex. B at 17:16-24.

As the Court is aware, these depositions discussing the testing of the mine 

ore and finished product were never identified or produced to plaintiffs’ counsel in 

any case before Paduano, where the alleged fraudulent conduct was discovered in 

2009. In fact, BASF claimed that it could not find the Gale deposition, which only 

surfaced in November 2017 when Johnson & Johnson produced it in response to 

Plaintiffs’ subpoena here in this case.

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According to BASF, all relevant testing results have been produced to 

Plaintiffs except for those documents that BASF withholds under a claim of 

privilege. See ECF 473 at 15 (3/21/18 BASF Sur-Reply). While a number of tests 

have been produced, Plaintiffs contest the assertion that all relevant testing 

information concerning the finished product have been disclosed. Moreover, no 

test results have been produced specifically referencing the 1979 Engelhard study 

of the Johnson mine’s ore. 

BASF’s Williams case privilege log identifies several entries where 

Engelhard scientists, such as Triglia, are listed as the author of memos “regarding 

talc testing,” dated at or about the same time Engelhard conducted studies of both 

the Emtal finished product and the ore from the Johnson mine. See Ex. F at 

PRIV001633, PRIV001672, PRIV001786. Each of these documents written by

Triglia (Ex. F at PRIV001633, PRIV001672, PRIV001786) lists Hemstock or Gale 

as memo recipients, both of whom we know participated in the Johnson mine ore 

study as well as studies of the company’s finished Emtal products. Id. BASF’s log

further lists numerous persons as recipients of the memos “regarding talc testing” 

including J. Brush, designated with an asterisk signaling him as the lone attorney

who was copied on the document. Id. 

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It is impossible to determine from BASF’s vague privilege log entries

whether the memos “regarding talc testing” relate to the Hemstock/Gale/Triglia

testing done by Engelhard of the Johnson mine, or some other undisclosed study of 

Emtal talc. The BASF privilege log does not set forth sufficient information to 

determine whether the documents are truly entitled to privileged protection, and we 

are therefore asking the Court to examine the documents in camera for that 

purpose.2

ARGUMENT

BASF Should Be Compelled to Produce All Documents Authored by 

Engelhard Scientists “Regarding Talc Testing.”

Under New Jersey law the attorney-client privilege generally applies to 

communications (1) in which legal advice is sought, (2) from an attorney acting in 

his capacity as a legal advisor, (3) and the communication is made in confidence, 

(4) by the client. Hedden v. Kean Univ., 434 N.J. Super. 1, 10, 82 A.3d 238, 244 

(Super. Ct. App. Div. 2013) (quoting and citing N.J.S.A. 2A:84A-20(1); N.J.R.E. 

 

2

In Plaintiffs’ counsel’s March 19, 2018 meet and confer letter and followup e-mail communication to BASF’s counsel dated March 26, 2018, we asked 

BASF’s counsel to identify who were direct or “cc’d” recipients of the subject 

documents, their roles and functions at Engelhard, and whether any document in 

question expressly sought or provided legal advice. BASF counsel did not respond 

with the requested information. 

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504(1)); (citing Metalsalts Corp. v. Weiss, 76 N.J. Super. 291, 297, 184 A.2d 435 

(Ch. Div. 1962)).

The party asserting the privilege bears the burden of establishing it. Rivard 

v. Am. Home Prods., Inc., 391 N.J. Super. 129, 152, 917 A.2d 286, 299 (App. Div. 

2007). “When a party asserts a privilege, it must provide a specific explanation of 

why each document is privileged or immune from discovery [which] must include 

a comprehensive presentation of all factual grounds and legal analyses in a nonconclusory fashion.” Id. (internal citations and quotations omitted) (alteration in 

original); see also N.J. R. 4:10-2(e). BASF fails to satisfy this requirement by 

stating in a conclusory fashion on its privilege log that documents authored by 

scientists “regarding talc testing” are “reflecting a request for legal advice.” See

Ex. F at PRIV001633, PRIV001672, PRIV001786.

Plaintiffs ask Your Honor to review the documents authored by Engelhard 

scientists “regarding talc testing” in camera. Plaintiffs believe that upon such 

review, Your Honor should compel production of the documents as not privileged

for the following reasons.

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a. The Attorney-Client Privilege Does Not Apply to the Documents 

Authored by Engelhard Scientists “Regarding Talc Testing.”

Although the attorney-client privilege may apply to certain communications 

between a corporation and inside counsel the privilege is narrow: “[c]orporations 

seeking to invoke the privilege must clearly demonstrate that the communication in 

question was made for the express purpose of securing legal, not business, advice.” 

TransWeb, LLC v. 3M Innovative Props. Co., No. 10-4413, 2012 U.S. Dist. LEXIS 

97534, at *17 (D.N.J. Apr. 12, 2012); see also Metalsalts Corp., 76 N.J. Super. at

298–99, 184 A.2d at 439 (declining to extend attorney-client privilege when 

corporate counsel was engaged for non-legal advice). The privilege only applies if 

the claimant demonstrates that the communication would not have been made but 

for the client’s need for legal advice or services. Leonen, 135 F.R.D. at 98–99.

More so, “the attorney-client privilege does not apply just because a 

statement was made by or to an attorney.” In re Riddell Concussion Reduction 

Litig., No. 13-7585, 2016 U.S. Dist. LEXIS 168457, at *7 (D.N.J. Dec. 5, 2016) 

(applying New Jersey law). In addition, merely copying or “cc’ing” an attorney on 

a document or communication is insufficient to establish the privilege. See 

Spiniello Cos. v. Hartford Fire Ins. Co., No. 07-2689, 2008 U.S. Dist. LEXIS 

53509, at *6 (D.N.J. July 14, 2008).

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In other words, “[communications] in which in-house or outside 

attorneys are merely sent copies of the text of the [communication], or 

in which they are merely one of many addresses, should not be 

privileged, unless the [communication] is directed to the attorney or 

sent by the attorney . . . . To rule otherwise would allow parties to 

evade the privilege limitations by sending copies of every companygenerated [communication] to the company’s attorney so as to protect 

the communication from discovery, regardless of whether legal 

services were sought or who the other recipients of the email were.”

Id. at *6–7 (emphasis and alterations added, substituting “email” with 

“communication”) (quoting In re Avantel, 343 F.3d 311, 321 (5th Cir. 2003)). 

“This makes perfect sense because otherwise parties could facilely avoid 

producing relevant discovery by simply copying an attorney on every email.” In re 

Riddell Concussion Reduction Litig., 2016 U.S. Dist. LEXIS 168457, at *7–8.

While BASF has produced certain documents related to the testing of 

finished talc product, there is ample evidence in the record that all such evidence 

has not been provided. In addition, to date BASF has not produced any document

referencing and setting forth the results of Engelhard’s 1979 study of the Johnson 

mine ore. 

BASF’s privilege log describes the pertinent documents authored by 

Engelhard scientists as “memos” or “attachments” “regarding talc testing.” See Ex. 

F at PRIV001633, PRIV001672, PRIV001786. Recipients of the documents 

include J. Brush (Engelhard’s inside counsel), Hemstock, Gale, and other nonCase 2:11-cv-01754-BRM-ESK Document 477 Filed 03/28/18 Page 9 of 14 PageID: 20756
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attorneys.3 The dates of the withheld documents correspond closely with the period 

during which Hemstock, Gale, and Triglia conducted the Johnson mine study as 

well as other studies of the finished product to determine if the Emtal talc 

contained asbestos. BASF claims attorney-client privilege over the “regarding talc 

testing” documents because, according to BASF’s privilege log, they reflect a 

request for legal advice from Engelhard inside counsel, J. Brush. See id. 

If the withheld Triglia documents “relating to talc testing” concern the 

Johnson mine study, the depositions of Hemstock and Gale provide important 

context. According to their Westfall testimony, the Johnson mine study was done 

by the Engelhard R&D department to gain a better understanding of the mine’s 

geologic make up. See Ex. B at 73:21–74:16; 118:22–121:11; see also Ex. C at 

17:5–18:9. 

 

3

In the corporate context, the attorney-client privilege also may be waived if 

the communications are disclosed to employees who did not need access to them to 

carry out their work. See Tetris Holding, LLC v. Xio Interactive, No. 09-6115, 

2011 U.S. Dist. LEXIS 160871, at *37 (D.N.J. June 20, 2011) (citing Smithkline 

Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 476 (E.D. Pa. 2005)). Although 

BASF provides the first initials and last names of the individual recipients, it does 

not explain their Engelhard employment positions. Plaintiffs are thus unable to 

determine if a waiver occurred because it is unknown if receipt of the Johnson 

mine study documents was necessary for the identified individuals to perform their 

job.

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According to Hemstock’s Westfall testimony, beginning in early 1979 

Engelhard conducted a study of the Johnson, Vermont mine not for legal reasons, 

but to evaluate the mine and its ore. See Ex. B at 73:21–74:16, 118:22–121:11. 

Hemstock and fellow Engelhard scientist, Peter Gale, went to the mine in Vermont 

where they gathered 38 rock samples from ten different areas of the mine. Id.; see 

also Ex. C at 23:8–25:11; Ex. D at 1 ¶ 2. Those samples were returned to 

Engelhard’s lab in Menlo Park, New Jersey for analysis. See Ex. D at 1 ¶ 2.

The Engelhard R&D department processed the samples and sent some of 

them to the Georgia Institute of Technology (“Georgia Tech”) for analysis. Id.; see 

also Ex. C at 70:12–71:9. Gale testified that he personally travelled to Georgia 

Tech where he himself, examined samples taken from the Johnson mine and found 

chrysotile asbestos in certain samples. See Ex. C at 17:5–20:9, 73:14-24. Gale 

documented his findings in notes that he took while performing his analyses. Id. at 

30:2–32:4. 2. Triglia explained in his Westfall deposition that he took over the 

Johnson mine study after Gale left Engelhard. See Ex. E at 55:24–56:17.

Thus, if the withheld documents relate to that study, they cannot be 

privileged even if Engelhard’s inside counsel, J. Brush, received a copy. In fact, 

Hemstock and Gale testified that the Engelhard R&D team conducted the Johnson 

mine study for a business purpose—to gain a better understanding of the mine’s 

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geological makeup, including determining the existence of asbestos—not for the 

development of a legal opinion. See Ex. B at 73:21–74:16; 118:22–121:11; see 

also Ex. C at 17:5–18:9

In the end, whether the withheld Triglia documents relate to the Johnson

mine ore testing, or testing of the finished product, there is no basis to conclude 

that Triglia sent the memos “regarding talc testing” for the express purpose of 

receiving legal advice. BASF thus fails to carry its burden in establishing that the 

attorney-client privilege applies to these documents. See Ex. F at PRIV001633,

PRIV001672, PRIV001786.

b. The Facts Contained in the Withheld Engelhard Scientist 

“Regarding Talc Testing” Documents Should Be Produced.

Consistent with the law and Your Honor’s rulings where the scope of 

attorney-client privilege has been raised, the privilege does not shield production 

of any underlying facts contained in the documents. 

Protected communications can be written as well as oral. Where a 

privileged document has attachments, each attachment must 

individually satisfy the criteria for falling within the privilege. Merely 

attaching something to a privileged document will not, by itself, make 

the attachment privileged. The privilege, however, protects only the 

disclosure of the protected document; it does not protect disclosure of 

the underlying facts in the documents. Protection of the privilege 

extends only to communications not to facts. The fact is one thing and 

a communication concerning that fact is entirely different.

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Leonen, 135 F.R.D. at 98 (internal quotations and citations omitted); see also 

Polansky v. Exec. Health Res. Inc., No. 12-4239, 2018 U.S. Dist. LEXIS 41403, at 

*7 (E.D. Pa. Mar. 13, 2018) (“[T]he facts of which the Defendant had possession, 

whether in the possession of business people or attorneys, paralegals, or all of the 

above, and the decisions made, and actions taken, pursuant to and following those 

privileged communications, are not privileged.”). Thus, even if some excerpts of 

the memos contain communication seeking or delivering legal advice, the facts, i.e.

test results and/or location from where samples were taken, are not protected by 

the attorney-client privilege.

BASF cannot be allowed to shield essential facts under the guise of 

privilege. To the extent that the memos outline facts concerning the testing of 

Emtal talc, detailing the location or sources from which samples were obtained, 

and the analysis results and conclusions as to those samples, Your Honor should 

compel production of those facts, even if embedded within allegedly privileged 

communications. See, e.g., Leonen, 135 F.R.D. at 95. 

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CONCLUSION

Based upon the foregoing, Plaintiffs respectfully request that Your Honor 

compel in camera production of December 23, 2016 BASF Privilege Log at

PRIV001633, PRIV001672, PRIV001786, and any other listed documents 

authored by Engelhard scientists that concern talc testing. Your Honor may then 

determine whether the attorney-client privilege applies, and whether the documents 

contain discoverable facts subject to production.

Respectfully Submitted,

COHEN, PLACITELLA & ROTH, P.C.

/s/ Christopher M. Placitella

Christopher M. Placitella, Esq.

(NJ Atty #: 027781981)

Michael Coren, Esq.

(NJ Atty #: 024871979)

Jared M. Placitella, Esq.

(NJ Atty #: 068272013)

Eric S. Pasternack, Esq.

(NJ Atty #: 015132011)

127 Maple Avenue

Red Bank, NJ 07701

(732) 747-9003

FOX ROTHSCHILD LLP

Jeffrey M. Pollock, Esq.

(NJ Atty #: 015751987)

Princeton Pike Corp. Center

997 Lennox Drive,

Building 3

Lawrenceville, NJ 08648

(609) 896-7660

Attorneys for Plaintiffs and the Putative

Class

cc: All Counsel of Record (via ECF)

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