One Newark Center, 19th Floor

Newark, New Jersey 07102

Tel: 973.690.5400 Fax: 973.466.2761 

www.rwmlegal.com

February 28, 2018

VIA ECF

The Honorable Roberto A. Rivera-Soto

Ballard Spahr LLP

210 Lake Drive East, Suite 200

Cherry Hill, New Jersey 08002

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

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

Dear Justice Rivera-Soto:

I write on behalf of defendant BASF Catalysts LLC to request that the Court 

enforce its prior order directing plaintiffs to provide responsive information in the 

possession, custody, or control of their counsel, Thomas Bevan and his law firm. As 

Your Honor made clear at the January 15, 2018 hearing, “if Mr. Bevan has 

information, that is information that is in the possession, custody, or control of the 

plaintiffs” and must be produced. 1/15/18 Hr’g Tr. 150:2-5. However, in their 

January 29, 2018 supplemental interrogatory responses, plaintiffs refused to provide 

such information and instead merely directed BASF to Mr. Bevan. Because 

plaintiffs continue to withhold information in Mr. Bevan’s possession—even in the 

face of Your Honor’s repeated directives—BASF moves to enforce the Court’s 

January 15, 2018 Order or, in the alternative, to compel further responses to BASF’s 

Interrogatory Nos. 1, 4, 12, and 13 from Set 1.

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The Honorable Roberto A. Rivera-Soto

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PROCEDURAL BACKGROUND

On December 15, 2017, BASF moved to compel plaintiffs to supplement their 

responses to BASF’s First Set of Interrogatories, served on October 23, 2015. 

Plaintiffs objected to many of those interrogatories in December 2016 and did not 

supplement them in response to Chief Judge Linares’s and Your Honor’s rulings 

regarding the scope of discovery, plaintiffs’ privilege waiver, and other issues. 

On January 15, 2018, Your Honor held a hearing on BASF’s motion to 

compel. With respect to Interrogatory Nos. 12 and 13 in particular (concerning 

plaintiffs’ decision to settle their underlying cases and efforts to prosecute their 

underlying cases), Your Honor questioned plaintiffs’ failure to produce information 

within the possession of the named plaintiffs’ former counsel, recognizing the 

importance of this information given the named plaintiffs’ asserted lack of factual 

knowledge concerning their decedent’s underlying cases. As Your Honor explained:

The person who’s now . . . filing verified responses saying: 

I didn’t know about this stuff, but I’ve read A, B, and C 

and if you really want answers, you got to go to my 

decedent’s lawyer at the time who might be able to provide 

this information for you. And since it’s already been 

determined that whatever attorney/client privilege may 

have existed between the decedent and his lawyer is now 

waived based upon the allegations made in the complaint, 

that information should be produced to [BASF]. 

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The Honorable Roberto A. Rivera-Soto

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1/15/18 Hr’g Tr. 148:10-22.

In ordering plaintiffs to amend their responses to BASF’s Interrogatory Nos. 

1, 4, 12, and 13, 1 Your Honor made clear that all relevant information in the 

possession of plaintiffs’ former counsel must be disclosed. See id. 150:2-5 (SDM: 

“Well, let me make painfully clear that if Mr. Bevan has information, that is 

information that is in the possession, custody, or control of the plaintiffs.”). Your 

Honor also made clear that plaintiffs’ responses must identify the source of the 

information provided. See id. 152:18-22 (SDM: “Let’s make it clear who the source 

of the information is, because if BASF takes Mr. Bevan’s deposition, they ought to 

 

1

Interrogatory No. 1 asks the named plaintiffs to “[i]dentify all Persons with 

knowledge Relating to Your claims against BASF and the subject matter of their 

knowledge.” 

Interrogatory No. 4 asks the named plaintiffs to “[i]dentify all resolutions of claims 

or dispositions with Any Defendant named in the Underlying Action ... , including 

... the reason why the claim was settled.” 

Interrogatory No. 12 asks the named plaintiffs to “[d]escribe in detail the process 

behind [plaintiffs’] Decedent’s decision to settle with or dismiss Engelhard or its 

subsidiaries in the Underlying Action, including the Persons involved, the 

information reviewed, and the basis for the decision.” 

Interrogatory No. 13 asks the named plaintiffs to “[d]escribe all efforts made by 

[plaintiff’s] Decedent and her counsel in the Underlying Action to develop and 

prosecute claims against Engelhard and its subsidiaries.”

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The Honorable Roberto A. Rivera-Soto

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be able to tie him back to specific representations made by the plaintiff as to what 

Mr. Bevan said or didn’t say.”). On January 15, 2018, the Court entered an Order 

requiring plaintiffs “to provided amended answers to [] interrogatories 1, 4, 12, and 

13.” ECF No. 407 ¶ 2.2

On January 29, 2018, plaintiffs served their amended responses. 3 The 

amended responses to Interrogatory Nos. 1, 4, 12, and 13 continue to be deficient 

because plaintiffs merely refer to knowledge held by their former counsel and do not 

actually provide that information. The “facts” of the named plaintiffs’ underlying 

cases—including the reasons why those cases were settled—are apparently not 

known by the named plaintiffs themselves. Plaintiffs’ counsel does appear to know 

those facts, which apparently came from Mr. Bevan. As Your Honor has made clear, 

BASF is entitled to know this information prior to Mr. Bevan’s deposition. 

BASF met and conferred with plaintiffs’ counsel regarding the ongoing 

deficiencies in their interrogatory responses, but plaintiffs refused to further amend 

 

2 At issue here are Interrogatory Nos. 1, 4, 12, and 13 for named plaintiff Kimberlee 

Williams and the corresponding Interrogatory Nos. 1, 4, 11, and 12 for the 

remaining named plaintiffs.

3 Attached hereto as Exhibits A-L are the six named plaintiffs’ January 29, 2018 

interrogatory responses, along with blackline comparisons to the prior versions 

served before the Court’s January 15, 2018 ruling on BASF’s Motion to Compel.

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their responses in accordance with Your Honor’s directives. BASF now moves to 

enforce the Court’s orders or, in the alternative, to compel plaintiffs to provide 

further amended interrogatory responses that provide responsive information in the 

possession of Mr. Bevan and any other former counsel.

ARGUMENT

Plaintiffs’ refusal to provide information within the possession of their former 

counsel is in clear contravention of Your Honor’s January 15, 2018 Order and Chief 

Judge Linares’ August 3, 2017 Order. These deficiencies continue to prejudice 

BASF’s efforts to investigate the named plaintiffs’ underlying claims and are 

particularly troubling in light of the upcoming depositions of the remaining named 

plaintiffs and Mr. Bevan.

Plaintiffs provided their initial responses to BASF’s interrogatories on 

December 23, 2016 and—after further follow up by BASF—amended those 

responses on January 4, 2018. As discussed above, at the January 15, 2018 hearing 

on BASF’s motion to compel, Your Honor instructed plaintiffs to again amend their 

responses to BASF’s Interrogatory Nos. 1, 4, 12, and 13. Your Honor noted that, in 

light of Chief Judge Linares’s directives in the August 3, 2017 Order, plaintiffs’ 

privilege objections were overruled, and plaintiffs were required to produce all 

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relevant information within the possession of their former counsel. See 1/15/18 

Hr’g. Tr. 150:2-5 (SDM: “Well, let me make painfully clear that if Mr. Bevan has 

information, that is information that is in the possession, custody, or control of the 

plaintiffs.”). Moreover, in answering BASF’s interrogatories, Your Honor 

instructed that plaintiffs must indicate what information is derived from plaintiffs’ 

own personal knowledge and what information comes from their former counsel. 

Id. at 152:18-22 (SDM: “Let’s make it clear who the source of the information is, 

because if BASF takes Mr. Bevan’s deposition, they ought to be able to tie him back 

to specific representations made by the plaintiff as to what Mr. Bevan said or didn’t 

say.”).

Notwithstanding these directives, plaintiffs served their amended responses 

on January 29, 2018 without providing the responsive information in their former 

counsel’s possession. Instead, the named plaintiffs alluded to that information 

without actually articulating it or identifying its source. See, e.g., Ex. A (1/29/18 K. 

Williams Resp. to BASF’s No. 12, Set 1) (“My attorneys from the Underlying Case 

may have more information responsive to this request as the information that I have 

is based on my reading of the complaints filed in this matter and is being developed 

by the lawyers who represent me in this case.”). Ms. Williams’ responses to 

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February 28, 2018

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Interrogatory Nos. 1 and 13 include similarly evasive language, and her response to 

Interrogatory No. 4 makes no reference to her attorneys’ knowledge at all, stating 

only that Ms. Williams has “no personal recollection of information responsive to 

this request.” Indeed, all of the named plaintiffs’ responses fail to provide responsive 

information in the possession of their former counsel or to identify the specific 

source of that information. See, e.g., Ex. B at 10 (Holley) (“My attorneys from the 

Underlying Case may have more information responsive to this request.”), Ex. C at 

10 (Wengerd), Ex. D at 11 (Chernick), Ex. E at 11 (Pease), Ex. F at 10 (Ware).

Plaintiffs’ failure to supplement their responses in accordance with Your 

Honor’s directives reflects the casual view of discovery that plaintiffs have taken in 

this case from its inception. Plaintiffs cannot merely direct BASF to their former 

counsel because, as Your Honor recently pointed out, if their former counsel has 

information, “that is information that is in the possession, custody, or control of the 

plaintiffs” and must therefore be produced. 1/15/18 Hr’g. Tr. at 150:2-5. 

The recent continued deposition of named plaintiff Marilyn Holley makes 

clear why BASF needs a definitive statement of the responsive information in Mr. 

Bevan’s possession. At her first deposition, Ms. Holley testified repeatedly that the 

only knowledge she has regarding the facts of this litigation comes from Mr. Bevan. 

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See, e.g., Ex. M (4/5/17 Holley Dep. Tr. 15:3-6) (“Q. The only knowledge you have 

is from Mr. Bevan regarding what was said or not said to your mother, true? A. 

Correct.”); id. at 15:7-10 (“Q. So you’re relying on Mr. Bevan as the source for the 

facts in this lawsuit, fair? A. I’d say fair based upon the complaint filed, yes.”); id.

at 62:5-7 (“Q. Other than what you know from Mr. Bevan, you don’t have any 

personal knowledge? A. I have no personal knowledge.”). Because the first day of 

Ms. Holley’s deposition took place before the Court’s various rulings with respect 

to Mr. Bevan, Ms. Holley did not answer questions based on what Mr. Bevan told 

her. 

At the second day of Ms. Holley’s deposition, BASF—with the benefit of the 

Court’s rulings regarding Mr. Bevan and BASF’s request for sanctions—expected 

to hear what Mr. Bevan told or discussed with Ms. Holley regarding her underlying 

case. Ms. Holley initially interposed her own objection based on privilege, asking 

“Wouldn’t my conversations with Mr. Bevan be privileged?” Ex. N (2/21/18 Holley 

Dep. Tr. 185:7-19). After plaintiffs’ counsel explained that the Court had ruled that 

the privilege over Ms. Holley’s communications with Mr. Bevan was waived (and 

after an attorney-witness conference outside the deposition room), Ms. Holley then 

continued her testimony. See id. at 185:20 - 188:6. Ms. Holley subsequently heeded 

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her counsel’s direction and, notwithstanding her prior testimony on April 5, 2017, 

stated that she never spoke with Mr. Bevan regarding the facts underlying her case 

but instead spoke with Mr. Coren. See id. at 192:18-23; see also id. at 182:19-22 

(“Q. Did Mr. Bevan ever tell you in words or in substance that he knows the reasons 

why the underlying Engelhard case was settled? A. No.”); id. at 195:20-24 (“Q. So 

it’s your testimony that from 2011 until today, you haven’t had any conversations 

with Mr. Bevan regarding your mother’s underlying case against Engelhard. True? 

A. No. That’s true.”); id. at 196:9-12 (“Q. Okay. Have you had any conversation 

with Mr. Bevan regarding the Williams class action from 2011 until today? A. No. 

It was present counsel.”). This testimony suggests that, despite the Court’s January 

15, 2018 rulings, Ms. Holley has still not taken any steps to ask Mr. Bevan for 

information in his possession about Ms. Holley’s underlying case. See id. at 179:24 

- 180:2 (“Q. Have you asked Mr. Bevan about his knowledge of the facts of why 

that underlying Engelhard case was settled? A. No.”).

More troubling, however, is the fact that Ms. Holley previously testified that 

she spoke with Mr. Bevan. See, e.g., Ex. M (4/5/17 Holley Dep. Tr. 25:20-25 (“Q. 

At the time Mr. Bevan spoke to you, did you have any facts regarding Emtal, 

Engelhard, BASF, or Cahill Gordon? Had you ever even heard of them? A. I had 

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not heard of them previous to talking to him.”); id. at 92:20-25 (“Q. ... Have you 

had discussions with Mr. Bevan regarding the facts in this case, the Williams case? 

... A. Yes.”); id. at 149:17-20 (“Q. After the BASF was filed in 2011, you had 

understood from Mr. Bevan that there had been a fraud with Engelhard, fair? A. 

Yes. That was my understanding.”). When asked about that prior testimony, Ms. 

Holley stated that she was mistaken and that she meant she had spoken to Mr. Coren. 

See Ex. N (2/21/18 Holley Dep. Tr. 227:24 - 228:20) (Q. “I think when I was asking 

about the Williams case in your first deposition, we were talking about the 

underlying allegations in the Williams case and the facts of the Williams case and 

you said that you had discussed it with Mr. Bevan. Do you see that? A. Yeah, I see 

that. Q. OK. So did you discuss the facts? A. I must have misunderstood the 

question.”); see also id. at 194:5-6 (“My conversations have not been with Mr. 

Bevan about an underlying case.”); id. at 194:13-15 (Q. “Mr. Bevan hasn’t 

discussed with you the underlying Engelhard case? A. No.”). Plaintiffs’ counsel 

objected to Ms. Holley’s testimony regarding her factual discussions with Mr. 

Coren. See id. at 192:24 - 193:19.

Ms. Holley’s two different pieces of testimony illustrate the problem with Mr. 

Bevan’s role in this case and how plaintiffs are preventing BASF from effectively 

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February 28, 2018

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conducting discovery to defend itself against plaintiffs’ claims. To address this 

situation, the first step is (another) Order requiring plaintiffs to state definitively in 

their interrogatory responses what (if anything) they know about this litigation from 

their personal knowledge and what specific information they learned from Mr. 

Bevan and other former counsel in the underlying cases.

For the reasons set forth above, BASF respectfully requests that the Court 

enforce its existing orders with respect to discovery of information in the possession 

of plaintiffs’ former counsel or, in the alternative, compel plaintiffs to produce that 

information.

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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