April 30, 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: 

Plaintiffs are replying to BASF’s opposition (ECF 486) to Plaintiffs’ motion 

to compel documents on BASF’s December 23, 2016 Privilege Log. See ECF 477. 

The subject documents were authored by an Engelhard internal R&D department 

scientist, are described as “regarding talc testing,” and withheld because they 

allegedly “reflect[] a request for legal advice.” See ECF 477-6 at PRIV001633, 

PRIV001672, PRIV001786. 

We begin by noting Your Honor’s observation to BASF’s counsel upon 

receiving the subject documents that “the basis for the privilege assertion does not 

appear from the face of those documents.” 4/25/18 Email from SDM to Quinn. Nor 

does BASF publicly present any extraneous evidence demonstrating the privilege 

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applies. So far as the record stands, BASF fails to demonstrate that the “regarding 

talc testing” documents were distributed for the sole express purpose of securing 

legal advice—a necessary showing when asserting communications to and from inhouse counsel are privileged. See ECF 486 at 3; see also Kramer v. Raymond 

Corp., Civ. No. 90-5026, 1992 U.S. Dist. LEXIS 7418, at *3–4 (E.D. Pa. May 26, 

1992). 

Nevertheless, even if portions of the “regarding talc testing” documents were 

privileged, any underlying facts in the documents are not. Leonen v. JohnsManville, 135 F.R.D. 94, 98–99 (D.N.J. 1990). BASF is wrong on the law

asserting otherwise. To be sure, BASF cannot avoid its obligation to produce

discoverable facts by embedding them in an allegedly privileged communication.

Nor can it shield relevant documents and facts by the expedient of copying a 

lawyer on them.

In short, BASF fails to carry its burden in proving the attorney-client 

privilege applies, and facts inserted within the “regarding talc testing” documents 

are indisputably discoverable. Your Honor should therefore compel production of 

the “regarding talc testing” documents, and any other listed documents authored by 

Engelhard scientists that concern talc testing. Alternatively, if portions of the 

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documents expressly seek or constitute legal advice, BASF should redact such 

portions as Your Honor directs.

ARGUMENT

A. BASF Fails to Prove the Attorney-Client Privilege Applies to the 

“Regarding Talc Testing” Documents.

As the party asserting attorney-client privilege, BASF bears the burden to 

show it applies. La. Mun. Police Emples. Ret. Sys. v. Sealed Air Corp., 253 F.R.D. 

300, 305 (D.N.J. 2008). For the privilege to apply, BASF 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)

(emphasis added) (internal citations omitted). This demonstration requires BASF 

to show “that the [‘regarding talc testing’] documents would not have been made 

but for [a] need for legal advice or services.” La. Mun. Police Emps. Ret. Sys., 253 

F.R.D. at 306 (emphasis and alteration added) (internal quotations and citations 

omitted). BASF must present sufficient facts in order to bring the “regarding talc 

testing” documents within the narrow confines of the privilege. In re Sunrise Sec. 

Litig., 130 F.R.D. 560, 570 (E.D. Pa. 1989). BASF makes none of these proofs, 

and in turn, fails to carry its burden.

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BASF concedes the “regarding talc testing” documents are not privileged 

because in-house counsel was merely cc’d on the communications. ECF 486 at 4. 

BASF instead asserts the “regarding talc testing” documents (ECF 477-6 at 

PRIV001633, PRIV001672, PRIV001786) are part of a series of communications 

Engelhard R&D scientist, Emil Triglia, prepared in order to obtain legal advice 

about test results that showed chrysotile asbestos in Emtal talc. See ECF 486 at 4. 

This broad application of the privilege, however, contradicts the general principle 

that the attorney-client privilege must be asserted on a document by document 

basis. See In re Human Tissue Prods. Liab. Litig., 255 F.R.D. 151, 163–64 (D.N.J. 

2008).

Moreover, even on a document by document basis, BASF offers zero public 

evidence that Mr. Triglia, a scientist at Engelhard, directed the “regarding talc 

testing” documents to Mr. Brush to solicit legal advice or service. BASF’s own 

privilege log shows Mr. Triglia distributed the “regarding talc testing” memos to 

seven other non-attorney employees at Engelhard (see ECF 477-6 at PRIV001633, 

PRIV001672, PRIV001786); this belies BASF’s assertion that Mr. Triglia 

specifically sought legal advice from Mr. Brush. See Nanticoke Lenni-Lenape 

Tribal Nation v. Porrino, No. 15-5645, 2017 U.S. Dist. LEXIS 151410, at *32–33

(D.N.J. Sep. 19, 2017) (declining to extend attorney-client privilege to a 

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memorandum that “was not written by, to or for an attorney seeking legal 

advice.”); see also In re Processed Egg Prods. Antitrust Litig., 278 F.R.D. 112, 

120 (E.D. Pa. 2011) (declining to extend attorney-client privilege to an internal 

memorandum where general counsel was cc’d, when nothing on the document’s 

face, nor in the record, showed the memorandum was a specific request for legal 

advice). 

BASF’s legal authority is equally unsupportive. In In re Niaspan Antitrust 

Litig., the lawyers initiated the first email in the chain by specifically requesting 

input and information from business executives to assist in the drafting of legal 

paperwork. No. 13-2460, 2017 U.S. Dist. LEXIS 135753, at *7 (E.D. Pa. Aug. 24, 

2017). Here, BASF proffers no evidence that Mr. Brush initiated or otherwise 

requested from Mr. Triglia any specific analyses of talc or general “asbestos in 

talc” data, or any Johnson mine study information in order to develop a legal 

opinion.

Given the time frame of the documents and general subject of the talc testing 

documents Plaintiffs seek relating to the missing Johnson mine study results 

testified to by Dr. Hemstock, Mr. Triglia, and Mr. Gale in the Westfall case, 

Plaintiffs note to Your Honor that all the evidence shows that Engelhard’s R&D 

department initiated the talc ore investigation to gain a better understanding of the 

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Johnson mine’s geological makeup (a general mining business issue) and had 

nothing to do with legal advice. See ECF 477-2 at 80–81, 125–128; ECF 477-3 at 

18–19. The mere fact that the results of this Engelhard R&D investigation may 

have been shared with Mr. Brush or caused some corporate concern does not make 

the resulting data and findings intrinsically privileged. Dr. Hemstock’s and Mr. 

Triglia’s Westfall deposition testimony and other public documents show 

Engelhard initiated and conducted the Johnson mine study, and analyzed the 

recovered data for mining business reasons and not to provide data for legal 

advice. Id. 

Plaintiffs surmise from Your Honor’s comment that BASF’s ex parte 

submission is equally devoid of “express request for legal advice” evidence. If 

such proof did exist, BASF would have listed Mr. Brush as the direct recipient of 

the subject documents on its December 23, 2016 Privilege Log, or openly 

submitted versions of the documents redacting only the portion where Mr. Triglia 

specifically requested legal analysis. See generally Mine Safety Appliances Co. v. 

N. River Ins. Co., No. 09-00348, 2012 U.S. Dist. LEXIS 198242, at *1 (W.D. Pa. 

Sep. 8, 2012) (providing allegedly privileged documents in redacted form to the 

opposing party, and to the court for in camera review). 

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Instead, BASF attempts to compensate for the lack of the required clear 

evidence on the face of each document by asking Your Honor to review the May 

1979 “regarding talc testing” documents and a June 18, 1979 memorandum1in 

context. See ECF 486 at 2, 4. BASF proposes that Mr. Brush’s June 18, 1979 

memorandum supposedly offering legal advice about talc test results creates an 

attorney-client privilege over the “regarding talc testing” documents created earlier 

in time.

Applying this framework changes nothing. Indeed, the argument presents no 

more than the post hac fallacy. Taken to its logical conclusion, BASF’s theory of 

privilege would allow a corporation to claim privilege over documents concerning 

a certain issue, that at the time of distribution did not seek legal advice, because an 

attorney subsequently rendered a legal opinion on the factual situation that was the 

subject of the earlier memorandum. This cannot be. The law does not permit the 

retroactive application of the attorney-client privilege. See Hudson v. Gen. 

Dynamics Corp., 186 F.R.D. 271, 277 (D. Conn. 1999); see also In re Grand Jury 

Investigation, 599 F.2d 1224, 1235 (3d Cir. 1979) (Because attorney-client 

 

1 BASF disclosed in an April 26, 2018 email from Daniel Bress, Esq. to Your 

Honor, that the June 18, 1979 memorandum is Exhibit H attached to its ex parte 

submission, and designated as PRIV000315 on BASF’s December 23, 2016 

Privilege Log (see ECF 477-6). 

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privilege “obstructs the search for the truth and because its benefits are, at best, 

indirect and speculative, it must be strictly confined within the narrowest possible 

limits consistent with the logic of its principle.”) (internal citations and quotations 

omitted).

Simply put, whether the attorney-client privilege applies to the “regarding 

talc testing” documents authored by Engelhard scientists depends on what those 

documents say when they were created. When assessing the documents, Your 

Honor should ask: Do the May 2nd or May 14th memos clearly and specifically 

request Mr. Brush’s legal expertise; or, were they written to a group of Engelhard 

employees that included Mr. Brush, about issues involving business or operational 

concerns? Are the memos directly addressed to Mr. Brush; or, is he the first 

recipient listed in the group because of alphabetic or some other protocol of 

ordering?2 To be sure, the attorney-client privilege does not apply unless each of 

Mr. Triglia’s May 1979 “regarding talc testing” memos made an express request 

for legal advice; or, on its face ties in to a directive from Mr. Brush or one of Mr. 

Triglia’s colleagues to provide the information to Mr. Brush for use in rendering a 

 

2 As noted above, BASF admits that the inclusion of Mr. Brush on the group 

recipients does not render the document a privileged communication. See ECF No. 

486 at 4.

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specific request for legal advice or services. BASF failed to present any public

evidence of an express request, and Your Honor’s comment so far suggests that the 

in camera submission also failed to meet the required standard. 

If on the other hand any of the withheld documents relate to the missing 

Johnson mine study results, what the undisputed record evidence does show is that 

the Engelhard R&D department conducted the Johnson mine study, not for legal 

reasons, but for a business purpose—to gain a better understanding of the mine’s 

geological makeup. See ECF 477-2 at 80–81, 125–128; ECF 477-3 at 18–19.

BASF fails to contradict the undisputed record that is its burden to prove the 

attorney-client privilege applies to the “regarding talc testing” documents, and 

these documents should be produced.

B. Facts Contained Within the “Regarding Talc Testing” Documents 

Must Be Disclosed

BASF’s contention that facts contained in a privileged communication 

cannot be released is wrong. See ECF 486 at 5. Courts in the Third Circuit have 

held that the attorney-client privilege does not shield production of underlying 

facts contained in a communication. See, e.g., Rhone-Poulenc Rorer v. Home 

Indem. Co., 32 F.3d 851, 862 (3d Cir. 1994) (“The client . . . may not refuse to 

disclose any relevant fact within his knowledge merely because he incorporated a 

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statement of such fact into his communication to his attorney.”) (citation and 

quotation omitted); La. Mun. Police Emples. Ret. Sys. 253 F.R.D. at 305 (“In all 

instances, the facts underlying any given communication remain discoverable.”).

Thus, even if some portions of the “regarding talc testing” documents contain 

language seeking or delivering legal advice, BASF may redact that language, but 

must produce any facts contained therein. See FTC v. Hope Now Modifications, 

LLC, No. 09-1204, 2011 U.S. Dist. LEXIS 71921, at *4 (D.N.J. July 5, 2011) (fact 

material is severable from privileged information and must be produced). Such 

facts include information concerning general testing for asbestos in Engelhard talc,

years of production and specific product grade tested (if testing refers to finished 

product) Johnson mine testing data, the specific location or sources from which ore 

samples were obtained (if the testing refers to ore samples), the analysis results as 

to those samples, and any conclusions that Engelhard scientists may have drawn 

from those results.

BASF’s assertion that Plaintiffs already possess and can decipher the 

Johnson mine study data based on a September 19, 1979 correspondence from 

Georgia Institute of Technology scientist James L. Hubbard to Emil Triglia (ECF 

No. 486-1) (the “Georgia Tech Letter”) BASF previously produced is also 

unavailing and incorrect. See ECF No. 486 at 6–7.

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First, the Georgia Tech Letter cannot be read on its face to identify which 

sample is which. The letter lists test results done by Georgia Tech (not Engelhard) 

of 68 samples with code numbers but no further description to identify which 

samples are which (apparently the Georgia Tech analysts were blinded to the 

origins of the samples, or whether any were duplicates). The letter shows 

numerous samples with significant asbestos contamination, but there is no 

indication on the face of the letter which specific samples pertain to the Johnson 

mine talc ore study initiated by Engelhard and referenced by Dr. Hemstock, Mr. 

Triglia, and Mr. Gale in their depositions, as showing the presence of asbestos in 

the samples, and which pertain to finished products. See ECF 477-2 at 24, ECF 

477-3 at 18-21; 23-24, ECF 477-5 at 63-65. More so, the Georgia Tech Letter does 

not indicate for any Johnson mine ore samples where in the Johnson mine any of 

the samples came from, which is critical information for determining the 

prevalence and extent of asbestos contamination in the mine. Were the samples 

taken from active production areas and from which of the six levels of the mine? 

Were the samples taken from the active ore body or from mine tailings?

In fact, the Georgia Tech Letter is so vague on its face that BASF’s own 

corporate representative, Daniel Steinmetz, testified that: 

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(1) He could not tell from looking at the correspondence where the 

samples were taken from. Ex. A at 644:13-646:5; 

(2) He could not tell from looking at the correspondence whether the 

report refers to test results of the end-product or ore samples from 

the Johnson mine. Id. at 646:7-15; and 

(3) If any of the samples referenced in the correspondence came 

from the Johnson mine, as he is unaware of any other document 

providing a key to where the samples came from. Id. at 647:6-

12.

Second, BASF’s other produced discovery is insufficient for Plaintiffs to 

understand the Georgia Tech Letter. None of the letters or reports that BASF 

attached to its ex parte submission, which BASF also produced to Plaintiffs (e.g. 

BASF’s 4/24/18 Ex Parte Opp. – Ex. D (4/11/79 Triglia Memo) and Ex. J (5/22/79 

Triglia Memo)), explains the Johnson mine’s ore study results with the requisite 

degree of specificity. The documents BASF produced on this issue so far concern 

the testing of production, not talc ore samples, and to the extent they bear on the 

mine ore samples, only state that the Georgia Tech lab would analyze 38 rock 

samples from production areas of the Johnson mine, without specifying the type of 

rock or from where the samples were taken. 

Third, BASF has not identified any evidentiary basis of record to 

substantiate that the Georgia Tech Letter contains the same test results as those 

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BASF continues to withhold wrongly. BASF counsel’s representation and offer to 

stipulate at the April 2, 2018 hearing that the Georgia Tech Letter included the

Johnson mine ore sample results is not evidence that goes to the required heart of 

the matter. Plaintiffs continue to question, and are entitled to know, which results 

are for the 38 Johnson mine ore samples, and where in the mine those samples

came from. In fact, BASF’s counsel’s representation that the Georgia Tech Letter 

contains Johnson mine sample tests results conducted by Georgia Tech (see ECF 

No. 486 at 6) raises an additional question: Where are the test results of the 

analysis conducted by Engelhard itself, as opposed to Georgia Tech, of the mine 

referenced in the Westfall depositions of Dr. Hemstock, Mr. Triglia, and Mr. Gale?

See ECF 477-2 at 24, ECF 477-3 at 18-21; 23-24, ECF 477-5 at 63-65. 

Lastly, BASF’s allegations that it already explained the Georgia Tech Letter 

to Plaintiffs, and that Johnson mine sample test results may also be found in other 

materials does not make the “regarding talc testing” inherently privileged. In fact, 

this argument proves the opposite that the information in the documents Plaintiffs 

seek is not privileged at all. 

Without the additional information BASF has refused to produce, the 

Georgia Tech Letter cannot be fully understood. Indeed, if BASF’s corporate 

representative cannot understand the Georgia Tech Letter, and BASF has provided

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Your Honor a fuller explanation in its ex parte submission (see ECF No. 486 at 6), 

Plaintiffs cannot be expected to understand the letter without the supplemental 

facts. Such underlying facts, if embedded in the “regarding talc testing” 

documents, are discoverable and should be disclosed

CONCLUSION

Based upon the foregoing, Plaintiffs respectfully request that Your Honor 

compel full 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, or with such redactions 

that specifically constitute or request privileged legal advice.

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

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Attorneys for Plaintiffs and the Putative

Class

cc: All Counsel of Record (via ECF)

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