Eugene F. Assaf, P.C. 

To Call Writer Directly: 

(202) 879-5196 

eugene.assaf@kirkland.com 

655 Fifteenth Street, N.W. 

Washington, D.C. 20005 

(202) 879-5000 

www.kirkland.com 

Facsimile: 

(202) 879-5200 

Beijing Boston Chicago Hong Kong Houston London Los Angeles Munich New York Palo Alto San Francisco Shanghai 

November 9, 2017 

VIA E-MAIL 

Christopher M. Placitella 

Cohen, Placitella & Roth, P.C. 

127 Maple Avenue 

Red Bank, NJ 07701 

Brendan E. Little 

Levy Konigsberg LLP 

800 Third Avenue, 11th Fl. 

New York, NY 10022 

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

Dear Messrs. Placitella and Little: 

I write in response to Mr. Placitella’s November 8th letter and Mr. Little’s November 8th 

e-mail, which both purport to answer some of my questions regarding the Bevan Law Firm’s client 

files but, in fact, only raise additional questions. 

It is difficult to understand how Mr. Placitella was unaware that Bevan’s files were 

maintained in electronic format until after the October 26, 2017 hearing. As experienced class 

counsel, he has an obligation to investigate and preserve documents that are likely to be relevant 

to this litigation, including the named plaintiffs’ files at the Bevan and Early Firms. In order to 

discharge that obligation, Mr. Placitella would necessarily need to know if documents existed and 

what measures were being taken to preserve them. We are now increasingly concerned with what, 

if anything, class counsel has done to ensure that relevant materials are being preserved and 

identified. See, e.g., 4/5/17 Holley Dep. at 32:6-8, 64:11-18, 69:12-24 (plaintiff Holley not told 

“in words or substance” to maintain documents). Please produce to us any and all document 

retention policies applicable to the Bevan Firm’s client files for putative class members. If you 

refuse to produce these documents based on a claim of privilege or work product, please identify 

where such memos are logged so that we can move for their immediate production. If no such 

document retention policies exist, we are, of course, entitled to know that as well. 

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Christopher M. Placitella 

Brendan E. Little 

November 9, 2017 

Page 2 

Leaving aside the preservation issues, class counsel made it clear to the Court and to the 

defendants that he intended to travel to Ohio in order to gather documents and put together 

discovery responses and objections. Indeed, more than a year ago, Mr. Placitella represented to 

the Court that he needed to go to Ohio to review client files in order to respond to BASF’s 

discovery requests. See 10/14/16 Hr’g Tr. at 9:6-8 (“Yes, we have to answer it and it requires trips 

to Cleveland and other places, so we’re going to need a little more time.”). It is difficult to 

understand how Mr. Placitella could have filed a lawsuit, prepared for discovery, and then travelled 

to Ohio to collect documents, all without appreciating that the Bevan documents were available in 

electronic form and not in some storage facility. 

It is clear that the Cohen Placitella Firm has a formal relationship, including perhaps even 

a contractual relationship, with the Bevan Firm in connection with this case. See 4/5/17 Holley 

Dep. Tr. at 19: 9-11) (“Q. ... [A]ny relationship, then, with the Williams lawyers would be through 

Mr. Bevan? A. It’s through Mr. Bevan.”). More specifically, documents that the Special 

Discovery Master sent to us on November 7, 2017—which had previously been withheld by class 

counsel as “privileged”—make clear that the Cohen Placitella Firm has specifically asked for and 

received consent from the named plaintiffs for the Bevan Firm to “provid[e] documents and 

testimony” as part of this litigation. See PWMS-0001307 at 3. To date, we have not identified 

any fee-sharing arrangement between class counsel and the Bevan Firm that has been logged or 

produced. If one exists, we believe it must be produced. If you insist on withholding the agreement 

under a claim of privilege and logging it, we will move the Court for immediate production 

consistent with the Court’s prior decisions on documents previously withheld by plaintiffs. 

With respect to the Bevan Firm’s electronic database of client information, it is clear that 

you have known about those materials for over a year. Indeed, since you have opened the door 

and raised the parties’ mediation process in your letter, it is only fair to point out that, during the 

mediation process, you specifically referenced Ohio data on the putative class members’ injuries, 

e.g.., what percentages of cases were asbestosis, mesothelioma, etc. We now understand this must 

have come from the Bevan Firm’s database. 

It also bears mention that you represented to the Special Discovery Master that you require 

access to Cahill’s electronic database in order to prepare your motion for class certification. 

However, it is now clear that you have the data you need from the Bevan Firm’s database. 

Moreover, the Special Discovery Master indicated that similar data, when held by Cahill, 

constituted attorney work-product that must nevertheless be produced under an appropriate nonwaiver agreement. See 10/26/17 Hr’g Tr. at 79:17-18, 194:5-13. Plaintiffs and the Bevan Firm 

cannot simultaneously seek the Cahill database and withhold the analogous Bevan database. 

Therefore, we ask you to produce the Bevan database by November 14, 2017. 

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Christopher M. Placitella 

Brendan E. Little 

November 9, 2017 

Page 3 

 As to the Bevan Firm’s recent arguments that their burden representations to the Court 

remain accurate, we disagree with the claim that whether a document review “starts from paper or 

scanned, non-OCR’d images makes little difference.” 11/8/17 B. Little E-mail to E. Assaf. 

Because the images exist electronically, the process of converting them to text-searchable format 

can be automated, making the electronic files much easier to search and review than paper files in 

storage. But, in any event, neither Bevan’s counsel nor plaintiff’s counsel argued to the Special 

Discovery Master that they needed time to review electronic scanned images. 

 Similarly, we still fail to appreciate class counsel’s position that this is some trivial issue. 

We believe that the understanding among all those present was that a manual review of physical 

paper files was necessary. Indeed, the Special Discovery Master stated: “I am assuming that 

whatever is in the files, particularly since these are 25-year-old files, that before they were sent to 

storage, they were purged because that is common practice in every courtroom. You take out all 

extraneous documents and you only preserve that which is important.” 10/26/17 Hr’g Tr. at 97:15-

20. The Special Discovery Master directed plaintiffs’ counsel to selected files for review by 

sticking a “hand in the box and pull[ing] out a file.” Id. at 152:22-153:4. At no point during the 

hearing did Bevan’s counsel or plaintiffs’ counsel inform the Special Discovery Master that 

Bevan’s files are not in physical boxes but are instead in electronic format. Mr. Placitella only 

reinforced the Court’s misapprehension by requesting—and then receiving—30 days “to go to 

Ohio” to randomly sample the files. Id. at 153:5-10. 

 In short, we have a fundamental disagreement about what was conveyed to the Court, and 

it appears that we cannot resolve that issue informally. On more granular issues, you have 

indicated that you are conferring with your client regarding whether the Bevan Firm will make 

available for deposition its records custodian in order to resolve some of the outstanding questions 

at issue here. With respect to (1) document retention memos, (2) any fee sharing agreement 

between the Cohen Placitella Firm and the Bevan Firm, and (3) the Bevan database, please let us 

know in short order whether you will agree to produce. I am pleased to discuss these issues by 

telephone anytime today, but I ask for a written response by the close of business today in all 

events. 

 We look forward to your response. 

Sincerely, 

/s/ Eugene F. Assaf, P.C. 

Eugene F. Assaf, P.C. 

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