One Newark Center, 19th Floor

Newark, New Jersey 07102

Tel: 973.690.5400 Fax: 973.466.2761 

www.rwmlegal.com

June 12, 2018

VIA ECF

The Honorable Jose L. Linares, Chief Judge

U.S. District Court for the District of New Jersey

50 Walnut Street

Newark, NJ 07101

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

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

Dear Chief Judge Linares:

I write on behalf of Defendant BASF Catalysts LLC in response to plaintiffs’ 

request to stay the Special Discovery Master’s June 7, 2018 and June 11, 2018 

Interim Orders, ECF Nos. 555 and 564, which require plaintiffs to provide to the 

SDM for in camera review any agreements and communications between the Bevan 

Firm and Cohen, Placitella & Roth. 

Discovery has revealed that plaintiffs’ lead fact witness, Thomas Bevan, an 

attorney for the plaintiffs in the underlying asbestos cases, has a fee-sharing 

agreement concerning this case with class counsel at Cohen, Placitella & Roth. As 

the SDM recognized in his Orders, that fee-sharing agreement with a fact witness 

raises a host of potential issues under the Rules of Professional Conduct. The SDM 

thus requested that plaintiffs produce to him in camera the fee agreement and any 

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written communications between Bevan and Cohen, Placitella & Roth about this 

case.

Plaintiffs have responded to these Orders by lashing out against the SDM, 

when plaintiffs have only themselves to blame. A fee-sharing agreement with an 

attorney who is not counsel in this case, but who plaintiffs have put forward as the 

critical fact witness, raises understandable concerns about the integrity of these 

proceedings. And communications between class counsel and a key third-party fact 

witness are not subject to protection. The SDM was fully within his rights to request 

these materials in camera, especially when he could have simply ordered them 

released outright. 

Plaintiffs thus cannot show the likelihood of success on the merits necessary 

for a stay, nor will a stay result in irreparable harm when the Orders merely require 

provision of the documents to the SDM alone, in camera. Plaintiffs’ allegations that 

the SDM is violating their due process rights and the canons of judicial conduct are 

beyond the pale and should be condoned. While the litigants here may disagree with 

the SDM’s rulings over the course of the case, one thing that the litigants should 

agree on is that the SDM has employed a process that has encouraged counsel to 

heighten the discourse and refrain from personal attacks. It is thus especially 

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disappointing that plaintiffs have employed tone and rhetoric that blames their own 

tactical decisions on the SDM.

Equally remarkable are plaintiffs’ claims that it is “impossible” for them to 

comply with the SDM’s Orders by the required due dates. That argument cannot be 

credited. There has been motions practice over the agreement and written 

communications at issue for months, and plaintiffs could have easily gathered these 

materials long ago. Moreover, plaintiffs plainly possess the fee-sharing agreement 

and Mr. Bevan has already testified that he printed out many emails between he and 

class counsel. These materials could be easily provided to the SDM today. The 

SDM gave plaintiffs five days to provide these materials and plaintiffs instead spent 

that time complaining about the Orders rather than complying with them. While 

plaintiffs’ counsel would need to search their own files as well in order to comply 

with the Orders, there is also no reason why that could not have been accomplished 

in five days, especially when plaintiffs should have gathered and reviewed those 

documents months ago during the motions practice that ultimately led to the Orders.

While plaintiffs may have concerns about how the SDM will react to the 

Bevan fee-sharing agreement and the written communications between Bevan and 

Cohen, Placitella & Roth, that is no basis for seeking to stay the SDM’s Orders, 

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much less for plaintiffs’ attack on the SDM as a judicial officer. Indeed, although 

plaintiffs in their stay papers claim they “requested a stay from the SDM, but as yet 

have received no response,” Pls.’ Br. 3, plaintiffs asked the SDM for a stay nine 

minutes before filing their request for a stay in this Court. That lack of respect for 

the SDM’s processes should not be rewarded with a stay in this Court. Plaintiffs’ 

request should be denied.

BACKGROUND

A. Mr. Bevan’s Role in the Williams Litigation

Thomas Bevan and his law firm feature prominently in plaintiffs’ operative 

complaint, see 2d Am. Comp. (ECF No. 158) ¶¶ 204 - 43, and have been the subject 

of numerous discovery orders in this case. This includes this Court’s August 3, 2017 

decision finding that plaintiffs waived their attorney-client privilege and several 

other decisions by the SDM applying the Court’s waiver ruling. See, e.g., ECF Nos. 

360, 373, 383, 398, 464, 493. In particular, on November 30, 2017, the SDM entered 

an order requiring the Bevan Firm to review its physical and electronic files and to 

produce responsive files either to BASF or to the SDM for in camera review and a 

privilege determination. 11/30/17 Order (ECF No. 381). A week later, the SDM 

entered another order clarifying that Bevan was to search both its files of the named 

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representative plaintiffs, as well as Bevan's own physical and electronic files to 

identify e-mails relevant to the case. 12/6/17 Order (ECF No. 382).

Throughout this litigation, plaintiffs have made clear that Mr. Bevan—who 

represented five of the named plaintiffs years ago in their underlying personal injury 

cases against Engelhard—is a critical fact witness whose testimony will be necessary 

to support their case. At their depositions and in their discovery responses, the 

named plaintiffs revealed that they have no personal knowledge of the factual basis 

for their claims and that they are relying solely on Mr. Bevan to provide that 

information. Plaintiffs’ counsel has since confirmed that, as a result, Mr. Bevan will 

testify as a fact witness on their behalf in this matter. See, e.g., 1/15/18 Hr’g Tr. 

132:21 - 133:3 (“SPECIAL MASTER: What are you going to do at trial, produce a 

plaintiff that says I don’t know? MR. ROTH: Yes. MR. PLACITELLA: Yeah. And 

they’re going to say I don’t know because I was defrauded. MR. ROTH: And we’re 

going to have their family’s lawyer testify and describe what happened.”).

Mr. Bevan was originally deposed on February 21, 2018 as his firm’s records 

custodian, and was deposed again on April 5, 2018 after BASF filed a motion to 

compel further testimony. In that second day of testimony, Mr. Bevan revealed the 

existence of a written compensation agreement and communications between the 

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Bevan Firm and Cohen, Placitella & Roth. Ex. A (4/5/18 Bevan Dep. at 101:22-25, 

102:5-24). Mr. Bevan also testified that he had written communications about this 

case with Cohen, Placitella & Roth, and that he had already printed these out and 

turned them over to his counsel. Id. at 99:25 - 100:4 (“Who has your e-mail 

communications with the Placitella firm? A. I believe counsel does. Q. Mr. Little? 

A. I believe so.”); Ex. B (5/15/18 Bevan Dep. at 115:4-6) (testifying that he printed 

the emails out “[i]n case I was going to have to turn them over”).

BASF then moved to compel production of those materials on the grounds 

that Mr. Bevan is a fact witness whose communications and agreements with 

plaintiffs’ counsel are discoverable under the ordinary standards of Rule 26. See

ECF No. 493. On May 12, 2018, the SDM denied BASF’s motion without prejudice 

but permitted BASF to re-file its application based on further developments in 

discovery. See ECF No. 513.

On May 15, 2018, following the Court’s decision on BASF’s motion, BASF 

and plaintiffs both deposed Mr. Bevan in his personal capacity. Mr. Bevan testified 

that he has very little recollection of the facts of this case other than what he was 

told by Mr. Placitella and what he read in plaintiffs’ complaint. See, e.g., Ex. B 

(5/15/18 Bevan Dep. Tr. 193:21 - 194:5) (“Q. What’s your understanding? A. My 

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understanding is that Eastern Magnesia Talc tested their talc in the 1970s, found that 

it contained asbestos, and destroyed any documents related to that. Q. What’s your 

understanding from? What source? A. From what I’ve heard from Mr. Placitella and 

what I read in the complaint. I’m not sure if I’ve seen any documents to that extent 

but that’s what I’ve been told.”). He confirmed that, although he is a fact witness 

and represented five of the named plaintiffs in their underlying cases in state court, 

he is “not handling the federal case in any way,” id. at 84:13-16, but nevertheless 

would like to see plaintiffs prevail in this litigation, id. at 420:7-10 (“Q. You’d like 

to see the plaintiffs win this case? A. The plaintiffs should win with this case 

[Objection] -- yes. Absolutely.”).

Mr. Bevan also testified that he has “a four-inch, five-inch stack of emails” 

that he exchanged with “Mr. Placitella and his colleagues” regarding this litigation 

and the facts of plaintiffs’ underlying cases. Id. at 115:12-17. Mr. Bevan has not 

reviewed these materials, but he “think[s]” that they contain the facts he conveyed 

to Mr. Placitella on which plaintiffs are relying to prove their claims. Id. at 114:10-

21. Mr. Bevan had printed these emails “in case I was going to have to turn them 

over.” Id. at 115:6. 

In light of Mr. Bevan’s May 15, 2018 testimony, BASF renewed its motion 

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before the SDM to compel the in camera review and production of Bevan’s 

correspondence with plaintiffs’ counsel regarding this litigation, as well as any 

written agreements between Bevan and plaintiffs’ counsel.

B. The SDM’s June 7, 2018 and June 11, 2018 Orders

On June 7, 2018, the SDM entered an “Interim Order” directing that plaintiffs 

produce “ex parte and in camera to the special master only ... (1) what plaintiffs 

have represented to be a single referral and assistance agreement related to this 

litigation between Bevan and Cohen, Placitella & Roth, and (2) all written 

communications, including e-mails related to this litigation between Bevan and 

Cohen.” 6/7/18 Order (ECF No. 555) at 4. The SDM’s order acknowledged that 

Mr. Bevan “is a fact witness in this case” and that these materials concern “a 

nonprivileged matter that is relevant to BASF’s defense” and “proportional to the 

needs of the case, all as required by Fed. R. Civ. P. 26(b)(1).” Id. at 3. The order 

went on to explain that in camera review is necessary here because the agreement 

between Bevan and Cohen, Placitella & Roth “may violate the provisions of either 

or both of R.P.C. 7.2(c) ... and/or R.P.C. 7.3(d).” Id. 

The SDM directed plaintiffs to produce the agreement and communications 

for in camera review within five days, by June 12, 2018. Id. at 4. The SDM further 

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made clear that “before any actual disclosure is made, plaintiffs shall have the 

opportunity to present orally, on a document-by-document basis in an ex parte but 

on-the-record proceeding, any assertions of the attorney-client privilege or the 

attorney work product doctrine plaintiffs contend apply to each such document.” Id. 

On June 11, 2018, plaintiffs requested additional time to comply with the 

SDM’s June 7 Order. That same day, the SDM entered a second “Interim Order” 

denying plaintiffs’ request for additional time, but granting plaintiffs the opportunity 

to also provide a submission regarding whether the agreement between Bevan and 

Cohen, Placitella & Roth violates the Rules of Professional Conduct. 6/11/18 Order 

(ECF No. 564) at 5. The SDM required that plaintiffs make this submission by 

Tuesday, June 19, 2018. Id. The SDM scheduled for June 21, 2018 plaintiffs’ ex 

parte oral argument regarding its privilege assertions over the documents at issue 

here. Id. at 6. On June 12, 2018, nine minutes after requesting a stay from the 

SDM, plaintiffs filed the instant motion to stay the SDM’s two interim orders 

pending appeal. This opposition follows.

ARGUMENT

“[A] stay pending appeal is governed by four equitable factors: (1) whether 

the stay applicant has made a strong showing that he is likely to succeed on the 

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merits; (2) whether the applicant will be irreparably injured absent a stay; (3) 

whether issuance of the stay will substantially injure the other parties interested in 

the proceeding; and (4) where the public interest lies.” LeJon-Twin El v. Marino, 

2017 WL 3400001, at *2 (D.N.J. Aug. 7, 2017). Because plaintiffs cannot satisfy 

any of these factors, plaintiffs’ motion should be denied.

First, plaintiffs have failed to establish that they are likely to succeed on the 

merits of their appeal. There is no error in the SDM’s interim orders requiring that 

plaintiffs produce the fee agreement and communications between Cohen, Placitella 

& Roth and the Bevan Firm for ex parte, in camera review. In light of the record 

established by Mr. Bevan’s deposition testimony and the SDM’s concerns that the 

agreement between Bevan and plaintiffs’ counsel may violate the Rules of 

Professional Conduct, the SDM took the preliminary and cautionary step of ordering 

in camera review of those materials. 

Plaintiffs have offered no credible argument that the June 7 and June 11, 2018 

Interim Orders were improper or are likely to be reversed on appeal. In particular, 

plaintiffs’ accusation that the SDM’s interim orders “violate Canon 3(A)(4) of the 

Code of Conduct for United States Judges, ... are arbitrary, capricious, and in 

violation of the right to due process of law under the Constitution of the United 

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States,” 6/12/18 Pls.’ Br. (ECF No. 566-1) at 3, are unsupported and ignore the 

procedural protections that the SDM has provided to plaintiffs here. Indeed, the 

SDM’s actions are thoughtful, incremental, and provide plaintiffs with ample due 

process, especially when BASF believes these materials should be subject to 

immediate production. 

Second, plaintiffs have made no showing of irreparable injury absent a stay. 

Plaintiffs are being ordered to provide for in camera review what they have 

represented is a single agreement between Bevan and Cohen, Placitella & Roth, as 

well as a specific set of communications between the two firms. The Court’s June 

7, 2018 Order merely begins the process of in camera evaluation of those documents 

and specifically provides plaintiffs’ counsel with the opportunity “to present orally, 

on a document-by-document basis in an ex parte but on-the-record proceeding, any 

assertions of the attorney-client privilege or the work product doctrine plaintiffs 

contend apply to each such document.” 6/7/18 Order (ECF No. 555) at 4. The 

Court’s June 11, 2018 Order expands the protections available to plaintiffs by 

allowing them to submit a written statement addressing whether the referral 

agreement between Bevan and Cohen, Placitella & Roth violates the New Jersey 

Rules of Professional Conduct. 6/11/18 Order (ECF No. 564) at 5. The order also 

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provides that plaintiffs’ ex parte document-by-document presentation to the SDM 

will take place on June 21, 2018, id. at 6, and the Court has already made clear no 

documents will be ordered produced before then, 6/7/18 Order at 4. There is thus 

no imminent threat of disclosure of any of these materials to BASF or to the public 

because the Court’s Orders do not require such disclosure at this time. 

With respect to the third and fourth factors, which together amount to a 

“balancing of the equities,” N. Jersey Media Grp., 2016 WL 2771805, at *3 n.1, 

plaintiffs have also failed to carry their burden because plaintiffs’ current situation 

is largely of their own making. Plaintiffs made a strategic decision—in drafting their 

complaint, in responding to discovery requests, and in litigating this case more 

generally—to make Mr. Bevan the critical fact witness to support their case. As a 

result of this decision, the Court and the SDM have confirmed that plaintiffs waived 

their attorney-client privilege with their counsel in their underlying cases, including 

Mr. Bevan. See, e.g., 8/3/17 Order (ECF No. 334) at 21 (finding waiver of attorneyclient privilege); 10/27/17 Order (ECF No. 360) (applying waiver to Mr. Bevan and 

ordering document production from the Bevan Firm). 

Notwithstanding those rulings, plaintiffs did not produce or log the documents 

that are the subject of the Court’s June 7, 2018 Order. Indeed, plaintiffs did not even 

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review the communications at issue so as to be in a position to represent to BASF or 

the Court that all of them even remain subject to a colorable privilege claim in the 

first place. Having put their communications with Mr. Bevan at issue but then 

having failed to produce them or even note them on a privilege log, plaintiffs can 

hardly complain that the Court has now ordered in camera review of those materials.

Similarly, it bears emphasis that plaintiffs have waited five (5) days to seek a 

stay. In doing so, plaintiffs have written multiple briefs to the SDM and to this Court 

instead of simply complying with the Order. Again, plaintiffs offer no legitimate 

reason why they cannot produce today (a) the single fee agreement and (b) the 

communications between Cohen, Placitella & Roth and Bevan (many of which were 

printed out weeks ago). Absent all the procedural objections and written 

submissions over the last 48 hours, it is also clear that class counsel could have used 

that time to simply search their email servers for emails to and from Bevan. 

Finally, it bears emphasis that the “public interest” factor relevant to the 

Court’s analysis, Marino, 2017 WL 3400001, at *2, weighs against a stay here given 

the SDM’s observation that the agreement between Bevan and Cohen, Placitella & 

Roth may violate the Rules of Professional Conduct. As the New Jersey Supreme 

Court has recognized, these rules are designed “to serve the public interest in 

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maximum access to lawyers and to preclude commercial arrangements that interfere 

with that goal.” Jacob v. Norris, McLaughlin & Marcus, 607 A.2d 142, 146 (N.J. 

1992). Because in camera review will further the goals of the Rules of Professional 

Conduct and ensure that plaintiffs’ counsel is complying with them, this fourth factor 

militates against issuing a stay here.

For the foregoing reasons, plaintiffs’ request for a stay pending appeal should 

be denied. We thank Your Honor for consideration of this submission.

Respectfully Submitted, 

s/ Justin T. Quinn

Justin T. Quinn

Counsel for BASF Catalysts LLC

cc: All counsel of record (via ECF)

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