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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civil No. 11-01754(JLL)

- - - - - - - - - - - - - - - -X

:

KIMBERLEE WILLIAMS, et al., : TRANSCRIPT OF

: PROCEEDINGS

Plaintiffs, :

: October 26, 2017

-vs- :

:

BASF CATALYSTS, LLC, et al., :

:

Defendants. : Newark, New Jersey

:

- - - - - - - - - - - - - - - -X

B E F O R E:

SPECIAL MASTER ROBERTO A. RIVERA-SOTO

Pursuant to Section 753 Title 28 United States Code, the

following transcript is certified to be an accurate record

as taken stenographically in the above-entitled proceedings.

s/Phyllis T. Lewis, CCR, CRCR

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

PHYLLIS T. LEWIS, C.C.R., C.R.C.R.

Official Court Reporter - United States District Court

Newark, New Jersey 07101

(732) 735-4522

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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A P P E A R A N C E S:

COHEN PLACITELLA ROTH, PC

127 Maple Avenue

Red Bank, New Jersey 07701

732-747-9004

BY: CHRISTOPHER M. PLACITELLA, ESQ.

JARED M. PLACITELLA, ESQ.

MICHAEL COREN, ESQ.

HARRY M. ROTH, ESQ.

Attorneys for Plaintiffs.

ROBINSON MILLER, LLC

One Newark Center

Newark, New Jersey 07102

973-690-5400

BY: JUSTIN T. QUINN, ESQ.

-andKIRKLAND & ELLIS, LLP

601 Lexington Avenue

New York, New York 10022

212-446-4930

BY: EUGENE F. ASSAF, ESQ.

DANIEL A. BRESS, ESQ.

PETER A. FARRELL, ESQ.

RONALD K. ANGUAS, JR., ESQ.

ELIZABETH S. DALMUT, ESQ.

Attorneys for Defendant,

BASF Catalysts, LLC.

CONNELL FOLEY, LLP

85 Livingston Avenue

Roseland, New Jersey 07068

973-535-0500

BY: ROBERT E. RYAN, ESQ.

-andWILLIAMS & CONNOLLY, LLP

725 12th Street NW

Washington, DC 20005

BY: DAVID BLATT, ESQ.

GRANT A. GEYERMAN, ESQ.

JOHN K. VILLA, ESQ.

Attorneys for Defendant,

Cahill, Gordon & Reindel, LLP

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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A P P E A R A N C E S (Continued):

HEROLD LAW

25 Independence Boulevard

Warren, New Jersey 07058

908-647-1022

BY: ERIC TUNIS, ESQ.

Attorneys for Defendant,

Thomas D. Halket.

MARINO, TORTORELLA & BOYLE, PC

437 Southern Boulevard

Chatham, New Jersey 07928

973-824-9300

BY: KEVIN H. MARINO, ESQ.

Attorneys for Defendant,

Arthur A. Dornbusch, II

LEVY KONIGSBERG, LLP

800 Third Avenue (11th Floor)

New York, New York 10022

212-605-6282

BY: BRENDAN E. LITTLE, ESQ.

Attorneys for Respondents,

Thomas W. Bevan & Bevan & Associates, LPA, Inc.

WILENTZ

90 Woodbridge Center Drive (Suite 900)

Woodbridge, New Jesey 07095

732-636-8000

BY: LYNNE M. KIZIS, ESQ.

-adROBERT SOKOLOVE, ESQ.

Attorney for Interested Party,

Alan Rothenberg.

MC CARTER & ENGLISH, LLP

100 Mulberry Street

Newark, New Jesey 07102

973-622-4444

BY: ZANE C. RIESTER, ESQ.

Attorneys for Respondent,

Johnson & Johnson Consumer Products, Inc.

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A P P E A R A N C E S (Continued):

O'TOOLE SCRIVO, LLC

14 Village Park Road

Cedar Grove, New Jersey 07009

973-239-5700

BY: STEVEN A. WEINER, ESQ.

Attorneys for R. T. Vanderbilt

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SPECIAL MASTER RIVERA-SOTO: Good morning.

I see that even those who were behind me in line

got here before me. I won't hold that against you.

Is everyone here?

MR. ASSAF: Yes, your Honor.

SPECIAL MASTER RIVERA-SOTO: All right. Everyone

has met Mr. Reilly from my law firm. He is going to try to

make sure I keep my errors to a minimum. We have our work

cut out for us today. We have a few motions that need to be

addressed.

Mr. Assaf, did I pronounce that correctly?

MR. ASSAF: Yes.

SPECIAL MASTER RIVERA-SOTO: I wanted to thank you

ahead of time. The binder that you prepared was

particularly helpful. There has been some add-ons to it,

and I will mention those as we go along in the hearing, but

I intend to follow the order in which the motions are listed

in the index, and I am going to follow Jersey procedures.

For those of you who are unfamiliar with Jersey

procedure on motions is I will call the motion. I will ask

for the appearances, and in this case what I am going to ask

is that I only get the appearances of those lawyers who are

actually going to address me, and then I will summarize what

the motion is about, and then I will ask counsel if there is

anything that they would like to add or amend or change in

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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respect to what I just summarized. So hopefully we don't

get a lot of repetition in the argument.

I can assure you, I read every single page. My

wife wanted to know where I was all of the evenings of this

week, except for Monday, which was the most profitable

evening, where I went to the Eagles game. It was spent --

those of you from Washington, we did defeat the Redskins.

(Laughter)

MR. COREN: They banged us up a bit, though.

SPECIAL MASTER RIVERA-SOTO: Well, yeah, but we got

the 49ers, so that is an easy week.

So let's get started, if we may.

And also, after the motions are heard, as I

mentioned to everyone, we are going to do a formal

scheduling conference and try to get everything moving as

quickly as we can, okay?

So we have nothing else. The first matter is --

MR. TUNIS: Excuse me, your Honor.

SPECIAL MASTER RIVERA-SOTO: I'm sorry. Sure.

MR. TUNIS: Eric Tunis for Tom Halket.

If you don't mind, I am going to sit in the jury

box.

SPECIAL MASTER RIVERA-SOTO: Wherever it is

convenient for you, please.

MR. TUNIS: Thank you.

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SPECIAL MASTER RIVERA-SOTO: I may call on you to

decide a few of these.

MR. TUNIS: Happy to do that, your Honor.

(Laughter)

SPECIAL MASTER RIVERA-SOTO: Somehow I thought that

would be the case.

We start off with the January 25, 2017 letter

motion by BASF seeking a number of forms of relief. They

are ECF Number 228, and the response is ECF Number 230.

Can I get the appearances of counsel on that?

MR. ASSAF: Gene Assaf on behalf of BASF.

MR. C. PLACITELLA: Good morning, your Honor.

Christopher Placitella on behalf of the plaintiffs.

SPECIAL MASTER RIVERA-SOTO: Good morning.

Welcome.

As I understand it, BASF is concerned about a

number of things. Number one is the privilege log that was

prepared by the plaintiffs. They produced it in January of

this year, and the real question that I have is that is

still a problem, given that we are now ten months later.

In respect of the plaintiffs' privilege, it is

BASF's position that it has been waived. BASF raises some

questions about plaintiffs' failure to produce documents.

BASF also questions when will the plaintiffs file their Rule

23 certification motion.

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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There is a tender for a "science" day. There is an

issue that has been raised concerning a protective order,

but one was, in fact, entered on March 31st. That is ECF

260.

There was a question about the deposition of a

Victor Komarnicki. I hope I pronounced that correctly. She

was a lawyer for Engelhard, and that deposition it appears

was, in fact, taken on January 19th, 2017.

There is a question about third-party subpoenas and

discovery, plaintiffs' spoliation allegations, communication

protocols, and a request for a discovery hearing. You are

getting your discovery hearing today.

In response to that, plaintiffs state that much has

been resolved, but plaintiffs request there be some

coordination between the State and Federal proceedings, and

that there be a motion to modify the State Court's

protective order, that we provide a procedure for addressing

privileged documents, that their procedure be determined for

privilege assertions at depositions, that the production --

that defendants be required to produce indemnity or

forbearance agreements among them, and that the defendants

also be ordered to complete their document productions.

Did I miss anything as to what has been presented?

MR. C. PLACITELLA: Your Honor, Chris Placitella.

As I understand it, a few things have been

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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resolved. The protective order issue has been resolved.

The Kormarnicki deposition has been resolved.

We have had -- the issue of class certification was

addressed, and I thought it was resolved until some point in

the future, but you will hear from Mr. Assaf.

The issue of "science" day was raised and rejected

by Judge Dickson.

So a lot of -- and we met and conferred on a lot of

these issues --

SPECIAL MASTER RIVERA-SOTO: So what is left?

MR. C. PLACITELLA: Well, it is interesting because

some of these things obviously overflow into the more

detailed filings.

SPECIAL MASTER RIVERA-SOTO: And in respect to

those, we will address them as they come up.

MR. C. PLACITELLA: Right.

SPECIAL MASTER RIVERA-SOTO: But is there

anything -- and perhaps this question is more to Mr. Assaf,

who is the movant here.

Is there anything left on this laundry list that

needs to be addressed, but is not addressed in the

subsequent filings?

MR. ASSAF: Yes, your Honor.

I think there is one issue that is left to be

addressed. Mr. Placitella mentioned it and said it may be

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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resolved, it may not be resolved, and that is the Rule 23

issue, which I am prepared to address.

SPECIAL MASTER RIVERA-SOTO: We are going to get to

that, because that is going to be under in my scheduling

order book, under the rubric of the scheduling order.

MR. ASSAF: So on that issue, your Honor, just for

the record, let me go through your list, and I will put our

position on.

In terms of the privilege log --

SPECIAL MASTER RIVERA-SOTO: Are you going to say

anything other than what is in your papers?

MR. ASSAF: No. I am going to address -- I'm

not -- I am going to say something different than is in our

papers, because I think on the privilege log, the plaintiffs

have represented to us that they are still correcting the

privilege log.

On the production of documents, after the

Judge Linares' August 3rd order, plaintiffs have said they

are going back to confirm that documents are being produced.

Science day was rejected without prejudice because

it is too early.

Your Honor is right, on the protective order,

Kormarnicki and communication protocol, they've all been

resolved.

And the other topics, I think the third-party

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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discovery is topics 2 and 7, and spoliation is topic 3, and

so I do think the issue, though, and I was going to set the

table, but I will go however you want, your Honor. I was

going to take five minutes and just say where we are on the

case in terms of class discovery because you mentioned in

your hearing, your Honor, that telephonic hearing of October

16th, you mentioned Hydrogen Peroxide, and I would just like

to use that for five minutes as a jumping-off point, because

what I tried to do today in organizing our presentations is

to look at this through the judicial lens of Hydrogen

Peroxide, Chief Judge Linares' Class Third Order to Synapse,

recent Third Circuit case in Widener and try to then apply

that to the discovery issues that are in front of your

Honor.

So I'm happy to proceed however you like, your

Honor, but I think I could get through this in five to six

minutes in terms of Hydrogen Peroxide and its progeny and

why I think the class motion, an early class motion is

critical to everything we do today.

SPECIAL MASTER RIVERA-SOTO: Okay.

MR. ASSAF: Thank you.

So, your Honor, Paragraph 286, and I will do this

for the record, because I know we have a court reporter,

thank you so much.

SPECIAL MASTER RIVERA-SOTO: Actually I wanted to

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thank you. The court reporter is here because I am too much

of a dinosaur to do it without a court reporter. Thank you

very much.

THE REPORTER: Thank you, your Honor.

MR. ASSAF: So, for the record, 286, and I will

get you these slides afterwards, so you can fill in the

record.

So 286 is the plaintiffs' class definition of:

"All persons in the United States" who have "filed a

lawsuit," and "by reason of BASF's statements that its talc

and talc products did not contain asbestos, or that there

was no evidence its talc" withdrew, dismissed, or suffered a

dismissal of such lawsuit.

And (b), all people --

SPECIAL MASTER RIVERA-SOTO: Actually --

MR. ASSAF: -- by reason of BASF's statements did

not file a lawsuit.

So just to like put this in perspective, half of

the class here, (b), of people who never filed a lawsuit.

Then it says at the end: "The class shall include

those who have had the right to claim damages derivatively

based" on that "exposed person's asbestos injury."

So your Honor, brought up Chief Judge Scirica's

opinion in Hydrogen Peroxide, and I was thinking today, I

was like that's interesting being a Former Justice, does he

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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like -- does it matter who wrote the opinion. It will be

interesting. We will get to figure out as we get to know

you. But on this one I actually think Chief Judge

Scirica --

SPECIAL MASTER RIVERA-SOTO: I am only concerned

whether it's a majority or dissenting opinion --

MR. ASSAF: And this one --

SPECIAL MASTER RIVERA-SOTO: -- since I wrote a lot

of the latter, and some of them have come back to haunt me.

(Laughter)

MR. ASSAF: Well, on this one, though, Chief Judge

Scirica has been very active in the Rules Committee and on

Rule 23 for a long time, as your Honor knows.

And Hyrdrogen Peroxide is a Watershed decision, and

for this case, and why I think the early motion, early,

early now, we are six years into it, and I think a year

after the formal start of discovery, I think ironically

discovery was supposed to end today under the schedule.

"A party's assurance" --

SPECIAL MASTER RIVERA-SOTO: Well, then we are

ready to go to trial, aren't we?

MR. ASSAF: -- "A party's assurance to the court

that it intends or plans to meet the requirements is

insufficient."

And "It is incorrect to state that a plaintiff need

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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only demonstrate an 'intention' to try the case in a manner

that satisfies the predominance" in this case.

And then this is a recent case, Judge Chagares, in

the Widener University case, where there were uniform

statements on the Widener website regarding data of their

success of applicants and getting jobs, and a Third

Circuit -- a recent Third Circuit case.

"The plaintiffs do not purport to have classwide

proof of reliance, in the traditional sense, on the part of

every single class member. Nor could they; reliance is

nearly always an individualized question, requiring

case-by-case determinations of what effect, if any, the

misrepresentation had on" the "decision-making," which I

think again, we are going to get to, your Honor, very

quickly today, because we are under Chief Judge Linares'

order, I think we get now discovery as to the plaintiffs'

decision-making and the impact of the alleged

misrepresentation, so Scirica, Chagares and Chief Judge

Linares.

In an opinion in 2009, in Synapse, the Chief

addressed again the common -- a common uniform

misrepresentation.

The "causation argument is simply: If we can show

a common course of conduct by Synapse," the defendant, "a

presumption of causation is appropriate. This is the type

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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of unadorned causation allegation that the Hydrogen Peroxide

court indicated would be insufficient under Rule 23. "

So that is I think our landscape, and at least for

this discovery conference, I don't know if there's going to

be -- I think these are the three of the key Third Circuit

and District of New Jersey, Chief Judge Linares in the Third

Circuit, but in this court that opinion will have special

weight in terms of his analysis.

So how did we get to where we are today?

For the past year, defendants or plaintiffs said

Rule 26 doesn't permit discovery. The Court of Appeals

wrote reliance out of the torts and that we forfeited. That

is now rejected.

Also rejected Rosenblit, also rejected --

SPECIAL MASTER RIVERA-SOTO: They didn't reject

Rosenblit --

MR. ASSAF: Correct. Rejected plaintiffs' reading

of Rosenblit. Sorry. I was trying to pick up speed. I

always tell people, when you start to pick up speed, you

make mistakes, so I will slow down again, your Honor.

SPECIAL MASTER RIVERA-SOTO: Take your time.

MR. ASSAF: Yes, your Honor.

Chief Judge Linares said: A plain reading of the

Supreme Court's decision makes clear that exposition of the

underlying litigation is required.

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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And then the privilege issue, which I know your

Honor is familiar with, that there is an at-issue privilege

waiver. Chief Judge Linares has found that, and we are

going to come back today to this citation, which is

critical, Paragraphs 12, 19, 228, 230, and 329. We are

going to come back to those.

I think on virtually every topic in front of you in

terms of the at-issue, because whether it be law of the case

or just now good procedure in this court, I think Chief

Judge Linares has already said at least these are in play

and are subject to full discovery.

And so what did we do?

To get here, your Honor, over the last month, we

proposed two protocols, okay, and I think we submitted this

in our papers to you on October 11th, a protocol on what

exposition the case means, and then a protocol on what

limited waiver means.

Why did we do this?

I think why we did this, your Honor, I don't want

to go through another deposition like Wengerd, and I

think --

SPECIAL MASTER RIVERA-SOTO: That is not going to

happen.

MR. ASSAF: -- and I think what we are going to do

is put up some guideposts. We as lawyers will always have

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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different views of the world, but there are some things we

should be able to agree on.

Again, I come back and leverage off Hydrogen

Peroxide in the Third Circuit, which I know is going to

guide this Court.

Prior to Hydrogen Peroxide, in the mid '90s there

were two important cases. One was Castano, the tobacco case

from the Fifth Circuit, where there were fraud claims

brought against the tobacco companies for

misrepresentations, and then Amchem. So in Amchem, the

Third Circuit said why they couldn't certify a class.

"Beyond these broad issues, the class members' claims vary

widely in character." They "were exposed to different"

"products, for different amounts of time, in different ways,

and over different periods. Some" members had "no physical

injury or have" "pleural changes, while others suffer from

lung cancer," "asbestosis, or" meso. "Each has a different

history of cigarette smoking, a factor that complicates the

causation inquiry," which again, coming back to Hydrogen

Peroxide, causation and reliance are somewhat tied up.

In fact, Chief Judge Linares in his opinion

analytically groups the two together and then separates them

later on.

So we took this, and we are saying, okay, we are in

the Third Circuit. We are entitled to this amongst the

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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class here, because eventually they are going to have to

prove this up, and part of our defense will be this is a

class of over 10,000 people according to the plaintiffs'

over 25 years, and I think 20 different states with

different diseases, different causations, and different

reasons coming back to Widener, different reasons why they

not went to law school, but why they resolved their cases.

So I think we are entitled on something more than

what the plaintiffs are suggesting, that we just get why

they settled their case, a simple statement, because I tend

to think what they are going to say, I get to press that and

probe it in order for when we have our Rule 23 hearing, and

I suspect again under the Third Circuit, I think we are

going to get an evidentiary hearing in terms of rigorous

analysis, whether it be the experts or the class reps.

This is what I am going to like to go through, and

again, your Honor, just to put this in context, the

plaintiffs here, we have six plaintiffs --

SPECIAL MASTER RIVERA-SOTO: You have six

representatives.

MR. ASSAF: Six representatives, correct, sorry.

Six representatives in this case, and now this is going to

become important throughout the day.

Two representatives last week we're told have

withdrawn for various reasons. I think this was in the

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submissions to the Court.

Two other representatives have been deposed.

One deposition of Ms. Holley, with all due respect,

your Honor, I don't think she is going to be adequate or

typical based on her deposition testimony.

The other, Wengerd, we are going to talk about

later.

So there is one representative left in Ohio, one.

Then there is one left in New York. New York, now

why New York?

This one representative in New York actually has a

pending case, so how we started off this presentation, that

it was people who had their cases dismissed and are now out

of court, this person actually has a pending case in New

York. So I am suggesting respectfully that person is not

going to be at least a class representative in terms of

typicality or adequacy.

So we are down to one Ohio class representative,

and then we get to the question Mr. Placitella has rightly

raised, that there are people in Mississippi, hundreds, if

not thousands of cases.

I think I would like to leave here today saying:

How do I test Hydrogen Peroxide for those Mississippi

plaintiffs?

Because I mentioned Castano. This isn't a case,

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where I am going to be expected just to take the

Mississippi's plaintiffs' word. This is actually Castano

squared, because what Mr. Placitella's theory is that it's

what defendants told plaintiffs' lawyers, who then told

their clients.

So I don't even know who the plaintiff lawyer is I

am supposed to depose in Mississippi.

Now, if Mr. Placitella at the end of the day -- end

of the day, not really -- but when he files his class motion

says, you know what, there is nobody from Mississippi, it is

an Ohio class, I have these three people. It's a much

different case. But if it is Missippi and Illinois and

Florida, I have to find out the lawyers who represented

them, what they think they heard from BASF and Cahill, and

then depose them and find out why these people settled and

what the differences are.

SPECIAL MASTER RIVERA-SOTO: But don't most of the

concerns you are raising really have to abide the filing of

the class certification motions?

MR. ASSAF: Yes, your Honor.

SPECIAL MASTER RIVERA-SOTO: So isn't the important

condition precedent to figure out when that is going to

happen understanding that Rule 23 says that the class

determination is to be made at the earliest practicable

time?

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I think that is a correct quote. So isn't that

really what we are talking about?

MR. ASSAF: Your Honor, that is a correct quote,

and if I didn't know better, I would think that you were

sitting on various judicial conferences where lot of courts

have now employed and said 90 days is a good mark.

SPECIAL MASTER RIVERA-SOTO: I don't think 90 days

is a good mark for this case, and I think you agree with

me --

MR. ASSAF: I agree.

SPECIAL MASTER RIVERA-SOTO: -- because this has

arms and legs that a quintessential class action does not

normally have.

MR. ASSAF: I agree with that, and I think that was

also the other inclination that I put up now, Slide 12,

roughly a year ago, your Honor, when we were here.

Another judge's inclination was I think similar to

yours. What I am saying in a nutshell -- I'm rambling -- is

that we are not going to decide it today, but I do think the

defendants' points on getting some more definitive

understanding of who the class is going to be and theories

under which the class is going to be proposed to the

District Court is well taken. I agree.

Then fast forward four months, Mr. Placitella at

the February hearing said: I am mindful of that.

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And I think we all left there, your Honor, it is

not as clean in the transcript as I would like, but we all

left there with the thought that, okay, the Court was

interested in saying you get some document discovery and

about halfway through the discovery period, you have to put

pen to paper, so that we know what discovery is left.

So, yes, that is my jumping off point today that I

think we need pen to paper as to what is in the class and

what is not the class.

Your Honor, I do want to put on the record, and I

want to be fair on this issue, and I think this is the

purpose those comments you're reading on Rule 23, this isn't

a be all end all that he can't file an amended motion. This

is just correct.

So I think you actually leave as liberally granted,

if he shows you got to come on with these new facts, et

cetera, there is intervening case law, et cetera, so I am

not trying to box him. I'm not trying to say got you --

SPECIAL MASTER RIVERA-SOTO: The thought process as

far as I am concerned in respective motions for class

certification is the rules require that it be done at the

earliest practicable moment. But the operative word there

is "practicable," and so as I view it, and this is not your

first rodeo either, there is sort of a lifespan to a

lawsuit, and when the complaint gets filed, you always end

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up with the broadest definition of a class anyone can

imagine, and that is the right thing to do.

And then as discovery happens, and facts are

ascertained, the class tends to get smaller. It may be that

it stops being a nationwide class as it is alleged in the

second amended complaint, and it becomes a much smaller

class, or you end up with sub classes. But that is part of

the learning curve of going through a lawsuit.

And so at least as far as I am concerned, the

discovery that is to be done in this case has to really

start focusing on how do you start narrowing that

definition, so that when Mr. Placitella files his Rule 23

motion, he has got a good sense of what the class should be

defined as, and that will allow you then the opportunity to

take your shots at it, which I am sure you will --

MR. ASSAF: Right.

SPECIAL MASTER RIVERA-SOTO: -- and it's going to

give them and the Court the opportunity to make a

determination in respect to that.

During the telephone conference, I actually went

further than that and said there might be a determination

that we are talking about, not just smaller classes, but

classes as to liability only and not damages, and that is a

judgment that is for plaintiffs' counsel to make, but it is

a judgment that has to be informed by discovery, because you

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have to assume, as I do, that the amount of knowledge

plaintiffs' counsel has at the beginning of the case when

they filed their complaint is a fraction of what they will

have after some discovery has been conducted.

So we are looking for a better informed motion, and

in order to have a better informed motion, we have to have

some discovery, and the discovery part is really why we are

here today.

MR. ASSAF: Your Honor, yes. I appreciate your

comments, and I tend to think that you actually now put this

agenda together with forethought because that leads into the

Bevan --

SPECIAL MASTER RIVERA-SOTO: We are following your

agenda, so --

(Laughter)

MR. ASSAF: -- but the next discussion is Bevan in

Ohio --

SPECIAL MASTER RIVERA-SOTO: Before we get to that,

okay?

MR. ASSAF: Yes.

SPECIAL MASTER RIVERA-SOTO: Mr. Placitella, would

you like to speak?

MR. C. PLACITELLA: Yes.

Thank you, your Honor.

MR. ASSAF: Thank you, your Honor, for your time.

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SPECIAL MASTER RIVERA-SOTO: Sure.

I am here for you guys, so don't thank me for my

time.

MR. C. PLACITELLA: Good morning, your Honor.

SPECIAL MASTER RIVERA-SOTO: Good morning.

MR. C. PLACITELLA: So I did listen to Mr. Assaf.

I couldn't follow his PowerPoint so well, but we seem to

still to have a disconnect on some issues.

SPECIAL MASTER RIVERA-SOTO: Okay.

MR. C. PLACITELLA: I think the core question here

is: How broad is the permissible discovery in this issues

class action based on a tort of fraudulent concealment.

This is not a typical class of plaintiffs, like Vioxx or

Fenfen or an MDL. It is an issue class, where all we claim,

all of the plaintiffs or putative plaintiffs were issued in

a common way, and the Third Circuit has told us what this

case is and what it can't be, right?

The Third Circuit has dictated what we can't do.

The Third Circuit, although we tried in the beginning, said

under Rooker-Feldman, we cannot litigate the underlying

claims. We can't do that. We can't prosecute the

underlying actions.

Similarly, by the same token, if we can't prosecute

the underlying actions, then the defendants don't get a redo

of the underlying case either.

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SPECIAL MASTER RIVERA-SOTO: I don't think that

that is correct.

MR. C. PLACITELLA: Well, I am going to get to why

I say that in a second.

SPECIAL MASTER RIVERA-SOTO: And I say it because I

would like you to address that.

MR. C. PLACITELLA: I absolutely will.

The issue here ultimately, you know, I didn't

just -- I read some of your Honor's opinions on the issue of

fraudulent concealment and in the cases you were involved

with, and the one issue that -- and --

SPECIAL MASTER RIVERA-SOTO: Pretty much all of

them except for Rosenblit, which preceded my --

MR. C. PLACITELLA: Yes, your Honor, but it was

cited liberally.

(Laughter)

So -- and we have five elements we have to prove

under fraudulent concealment. But really the element -- the

element we have to wrestle with is the fifth element really,

and the fifth element is critical, and the Third Circuit has

cited the fifth element. Judge Linares has cited the fifth

element, and it comes down to this: Did the defendants

possess information that either destroyed or withheld that

harmed the plaintiffs' case. That is the fifth element.

Now, it is interesting because -- and I actually

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saw last night when I was looking at this for the 50th time,

the wisdom of how that was articulated and actually saw a

little bit of a light in what Judge Linares actually held,

because the fifth element does not really go to reliance on

a misrepresentation, but rather the reliance on the

unavailability of proof.

SPECIAL MASTER RIVERA-SOTO: Is it that or isn't

that last element just the quintessential tort element of

causation?

MR. C. PLACITELLA: Absolutely, that is absolutely

correct.

SPECIAL MASTER RIVERA-SOTO: Because I have to tell

you, I look at it from a much more elementary point of view.

MR. C. PLACITELLA: That is absolutely correct.

SPECIAL MASTER RIVERA-SOTO: That is, you are

alleging torts, civil torts, and there is something that

every civil tort has in common with every other civil tort,

and that is you have to have a duty, a breach of duty,

causation and damages --

MR. C. PLACITELLA: Absolutely correct.

SPECIAL MASTER RIVERA-SOTO: -- and don't you bear

the burden as the plaintiff of proving that there is a

causal link? And I am just taking the allegations in the

complaint as being true, so nobody on the defense side

should have a heart attack at this point.

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The false representations made to the plaintiffs,

however many there may be, actually caused them injury, and

isn't that right there, where the gravamen of the

defendants' argument is?

MR. C. PLACITELLA: Yes and no. If you look --

SPECIAL MASTER RIVERA-SOTO: Well, the yes, I

understand, but I don't understand the no.

(Laughter)

MR. C. PLACITELLA: It is partially correct. It's

partially correct.

Under the Third Circuit ruling after they go

through the elements, and they say that the last element,

the plaintiff was damaged in the underlying action by having

to rely on the evidential record that did not contain the

evidence defendants concealed.

It goes on to say: The tort - and I didn't

actually get this, and I am going to go to Judge Linares in

a second - the tort does not require reliance on the

adversary's representations, indeed a lawyer or litigant who

destroys or conceals evidence may be liable even if he or

she makes no representations to his or her adversaries at

all --

SPECIAL MASTER RIVERA-SOTO: Can I stop you there

for one second?

MR. C. PLACITELLA: Yes.

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SPECIAL MASTER RIVERA-SOTO: Because this is one of

the ironies I need you to reconcile for me.

You are talking about the tort of fraudulent

concealment --

MR. C. PLACITELLA: Yes, your Honor.

SPECIAL MASTER RIVERA-SOTO: -- which is what us

old dogs call spoliation.

MR. C. PLACITELLA: Yes, your Honor.

SPECIAL MASTER RIVERA-SOTO: But you also alleged

fraud.

MR. C. PLACITELLA: Yes.

SPECIAL MASTER RIVERA-SOTO: And reliance is an

element of fraud --

MR. C. PLACITELLA: Absolutely. There are two

different issues --

SPECIAL MASTER RIVERA-SOTO: Two different causes

of action.

MR. C. PLACITELLA: -- absolutely, and they may

require a different treatment in a class certification

process.

SPECIAL MASTER RIVERA-SOTO: That may very well be,

but what I am concerned about right now, which is I thought

where you were going, is how do we handle the discovery,

because you may very well have, if your theory is correct,

you may very well have documents and the like that are not

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relevant to your fraudulent concealment claim, but are very

relevant in respect of your fraud claim, and how do you

slice that baby in half?

I don't know how you do that.

MR. C. PLACITELLA: They do overlap because there

are common elements to both torts.

Under fraudulent concealment, I get through

elements one through five pretty easily on a global basis, I

submit. It becomes a little bit different in a fraud case

because reliance actually matters in that case, okay?

SPECIAL MASTER RIVERA-SOTO: It has to be

reasonable reliance.

MR. C. PLACITELLA: Absolutely, and I agree with

that.

SPECIAL MASTER RIVERA-SOTO: So --

MR. C. PLACITELLA: Then the issue becomes in the

context of when we get to class cert, how that all gets

ferreted out and what kind of classes. You may have a class

defined in fraudulent concealment that's different than a

class defined in fraud based on the elements.

SPECIAL MASTER RIVERA-SOTO: And now you're

dovetailing right into what Mr. Assaf was saying, because

then the question becomes: If we are going to have

something, other than what you alleged as the class in your

complaint, shouldn't we know that sooner rather than later,

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so that we can tailor the discovery accordingly?

MR. C. PLACITELLA: I think, your Honor, absolutely

we should do it as soon as we can, but we still need some

discovery to get there.

SPECIAL MASTER RIVERA-SOTO: Okay, and that's fair.

MR. C. PLACITELLA: Okay?

So if they made the same exact, which I think they

did, the same exact representation to everybody, we are

entitled to all of that.

If there is information that they are withholding,

that goes to these issues, we are entitled to that, and you

are going to have to weigh in on that.

We know, we know, it's undisputed, that they kept a

scorecard of who was dismissed and the reasons why. We are

entitled to that scorecard. That may cut through a lot of

what we have to do.

If they actually kept a scorecard of every case and

internally said, dismissed for product I.D. versus dismissed

because there was no asbestos, and they have that, and we

know it.

SPECIAL MASTER RIVERA-SOTO: Well, Mr. Placitella,

help me out, because this is part of what I read --

MR. C. PLACITELLA: Yes, your Honor.

SPECIAL MASTER RIVERA-SOTO: -- and I don't recall

seeing the word "scorecard" in any of this, so please help

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me.

MR. C. PLACITELLA: Okay. This is just to give you

an example.

SPECIAL MASTER RIVERA-SOTO: Thank you.

SPECIAL MASTER RIVERA-SOTO: For the record, I have

been handed a letter, dated November 12th, 2008, to John

Mismas, M-i-s-m-a-s, of Bevan & Associates from a Jennifer

Reister. It looks like the electronic version of a letter

that was printed on letterhead, but it doesn't tell me what

the letterhead is. That's okay.

MR. C. PLACITELLA: This is how it was produced to

us.

SPECIAL MASTER RIVERA-SOTO: Okay.

MR. C. PLACITELLA: So if you look at the second

page, your Honor, the second -- the bottom paragraph, second

to the bottom paragraph --

SPECIAL MASTER RIVERA-SOTO: The one starting with

"Engelhard"?

MR. C. PLACITELLA: "Engelhard."

You see that there are actually representations

made by an officer of the court in an attempt to secure a

dismissal about the number of cases that were dismissed in

each jurisdiction on the exact same representations that are

being made here, so somebody back at Cahill or Engelhard --

SPECIAL MASTER RIVERA-SOTO: Actually it looks like

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Ms. Reister, R-e-i-s-t-e-r, is at the law firm of West &

Herd.

MR. C. PLACITELLA: Right. She is the local

counsel in Ohio.

So we know that they were keeping a scorecard of

why cases were dismissed by state, and in fact --

SPECIAL MASTER RIVERA-SOTO: Was this letter in any

of the materials?

MR. C. PLACITELLA: I believe it was, your Honor.

MR. COREN: Your Honor, I understand it's Exhibit

36 to the second amended complaint.

SPECIAL MASTER RIVERA-SOTO: To the second amended

complaint?

MR. COREN: Yes, your Honor.

MR. ASSAF: I don't want to interrupt, but just for

the record, is there anything, though, in the briefs, so

that I could pull out --

SPECIAL MASTER RIVERA-SOTO: That is what I was

sort of looking for it.

MR. ASSAF: -- that is what I was asking.

SPECIAL MASTER RIVERA-SOTO: That is okay. As long

as we know it is somewhere in the record.

MR. C. PLACITELLA: So my only point is that we

need discovery because if they in fact have a scorecard for

every state and every case, that cuts through --

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SPECIAL MASTER RIVERA-SOTO: Mr. Placitella, let me

tell you, you are going to get discovery, and the defendants

are going to get discovery. It is really the scope of the

discovery that we are talking about --

MR. C. PLACITELLA: Absolutely.

SPECIAL MASTER RIVERA-SOTO: -- and in respect of

that, the big issue, it seems to me, that we kind of danced

around this morning is the privilege issue, and you have

privilege claims. They have privilege claims.

You have arguments why their privilege claims don't

apply. They have arguments why your privilege claims don't

apply.

Some of those, in fact, in my view, all of them

have on a global basis been already determined by Chief

Judge Linares, and it is my job to then take the

instructions we have all been given by Chief Judge Linares

and apply it to the nitty gritty of this case, and in that I

am going to need everyone's help.

I have got some ideas, but we are going to talk

about that in the scheduling conference at the end of today,

but we have now been at this for almost 40 minutes, and we

still haven't gotten to the first motion, not that I am

rushing you. Take your time.

MR. C. PLACITELLA: I just want to end with what I

thought was the essence, and it goes right to your question,

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the essence of Judge Linares' decision on scope, and I will

sit and answer other questions later.

First, on the issue of reliance, you know, he

states: First, plaintiffs' focus on reliance -- this is

where he is telling me I am wrong, and I think he is correct

by the way -- ignores that causation, something that you are

talking about --

SPECIAL MASTER RIVERA-SOTO: It is always good to

agree that the Judge is right and you are wrong.

MR. C. PLACITELLA: -- and element of every tort

still creates an issue of discovery. Defendants are

entitled to explore in discovery linked by causation between

defendants' conduct and plaintiffs' damages.

SPECIAL MASTER RIVERA-SOTO: That is on Page 17 of

his opinion --

MR. C. PLACITELLA: Yes.

SPECIAL MASTER RIVERA-SOTO: -- and it happens to

be the highlighted page that I have open.

MR. C. PLACITELLA: Yes.

The analysis of the Court of Appeals clearly

acknowledges the need for discovery and to how the

defendants in light of this conduct in the underlying

cases -- I think that is what you are focusing on.

And here is the issue: Answering that question,

and I am going to go right to the heart of his decision I

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believe.

Did the withholding or destruction of evidence harm

the plaintiffs' case?

That is your Honor's decision. That is Rosenblit,

and that's the Third Circuit.

If you go to Judge Linares' decision, and you

probably know the exact page, he said: The scope of

discovery will focus on the alleged wrongful conduct --

SPECIAL MASTER RIVERA-SOTO: That is the bottom

paragraph on Page 19.

(Laughter)

MR. C. PLACITELLA: -- and any alleged harm

following from that conduct, okay?

So did the destruction or withholding of

evidence --

SPECIAL MASTER RIVERA-SOTO: Read the last

sentence.

MR. C. PLACITELLA: I am going right to the last

sentence.

He says in the last sentence: The scope of

discovery may include inquiry as to why the plaintiffs

settled or dismissed their underlying claims. To fully

explore this issue, defendants will be entitled to discover

what plaintiffs and their counsel knew, were told, and

whether any knowledge or lack thereof contributed to their

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decisions.

So I actually think we --

SPECIAL MASTER RIVERA-SOTO: Decisions on resolving

the underlying case.

MR. C. PLACITELLA: Absolutely.

SPECIAL MASTER RIVERA-SOTO: Okay.

So we have now been told by Chief Judge Linares

that this is the scope of discovery in respect of

defendants' request of plaintiffs for what is, for lack of a

better word, privileged material.

And the conclusion that Judge Linares reached,

Chief Judge Linares reached is that because of the way the

matter has been pled, those issues have been put directly at

issue, and therefore the privilege does not apply.

Now, that is the overarching conclusion that he

reached. In respect of each individual one, he has charged

me with the obligation of taking that overarching conclusion

and applying it to the specifics --

MR. C. PLACITELLA: Absolutely.

SPECIAL MASTER RIVERA-SOTO: -- which means we are

going to have to work out a system to do that, because if

you are talking about 10,000 plaintiffs, I know you don't

propose that I look at 10,000 different files. That is

something that you folks need to work out among yourselves

first.

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But isn't that really sort of the direction that we

have to be going in?

MR. C. PLACITELLA: I would say no for the

following reason. The issue is on an individual file, what

did the plaintiffs' counsel know.

I believe in an individual case, so, for example,

and Mr. Assaf may be shocked to think that I actually might

agree with him, although he has a hard time getting there,

that is --

SPECIAL MASTER RIVERA-SOTO: I expect you agree on

a lot more than you are willing to agree on.

(Laughter)

MR. C. PLACITELLA: That may be right.

SPECIAL MASTER RIVERA-SOTO: And if you understood

that, that is great, because I didn't.

(Laughter)

MR. C. PLACITELLA: So I think that they are

entitled to ask Mr. Bevan: What did you know?

What went into your decision in Ms. Williams' case?

What communications did you have with Ms. Williams,

if you can recall them?

I think under Judge Linares' decision that is fair.

SPECIAL MASTER RIVERA-SOTO: Aren't they also able

to ask: Are there any documents that reflect any of the

foregoing?

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MR. C. PLACITELLA: Absolutely.

SPECIAL MASTER RIVERA-SOTO: Have you produced

those documents for us?

MR. C. PLACITELLA: Absolutely, absolutely. We are

on the same page.

SPECIAL MASTER RIVERA-SOTO: Okay.

MR. C. PLACITELLA: Where we differ is --

SPECIAL MASTER RIVERA-SOTO: You now made Mr. Assaf

a little bit happy.

MR. C. PLACITELLA: Right.

Where we differ significantly, and I actually think

this is part of the whole class issue, is where do the

absent class members discovery come in.

I know we're going to address that. From our

perspective, just as an overview, we are not there yet

because until people know that they're members of the class,

until they are notified, and they make decisions about

whether they want to participate or get out, going through

their files which are privileged, we are not there yet.

That I think has to await class certification to see where

we come out on the other side of that, and I am happy to

address the issue when you're ready about absent class

member discovery. A lot of people have a lot of things to

say about that.

But I respectfully submit to you that the first

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part of discovery in this case does not get there, because

we have to focus. This is a common issues class. The

common issues, I don't think there is -- you know, we'll

talk about certification another day, but --

SPECIAL MASTER RIVERA-SOTO: No. We are going to

talk about certification today.

MR. C. PLACITELLA: -- but you are right to raise

these issues, but how they come up in discovery really comes

down to how the class is ultimately structured.

You raised the issue, is it an issues class.

Maybe,

Is it a -- are there common damages to everybody on

fraudulent concealment only?

I would say yes.

Are there common damages on fraud?

That is a little more dicey question, so, you know,

these issues about where we are going on reliance really

have to be flushed out in the process.

SPECIAL MASTER RIVERA-SOTO: Well, but the process

doesn't start until you file your class certification.

MR. C. PLACITELLA: That is correct.

SPECIAL MASTER RIVERA-SOTO: So we are going to

talk about when that is going to happen.

MR. C. PLACITELLA: As soon as I get the discovery

that I need, I am ready to go.

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SPECIAL MASTER RIVERA-SOTO: I don't know. What

does that mean?

I don't know what that means, "the discovery that I

need." What does that mean?

MR. C. PLACITELLA: There is some basic discovery

for class certification only that I believe that we would

request --

SPECIAL MASTER RIVERA-SOTO: Can I ask that

question a little bit differently?

MR. C. PLACITELLA: Sure.

SPECIAL MASTER RIVERA-SOTO: The motions that you

have filed that are returnable today, do they address the

waterfront of the discovery that you think you need in order

to file your class cert motion?

MR. C. PLACITELLA: I don't believe so, your Honor,

not in its entirety. I think our proposed plan addresses

some of that, but I do not believe that we have gotten into

what exactly we need.

SPECIAL MASTER RIVERA-SOTO: I have your proposed

plan here.

MR. C. PLACITELLA: Yes.

SPECIAL MASTER RIVERA-SOTO: And I don't remember

clearly, but I do not recall that those issues were

addressed with the kind of clarity that we are putting on

them today.

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MR. C. PLACITELLA: I am happy to have that

discussion and flush those things out.

SPECIAL MASTER RIVERA-SOTO: All right.

Is there anything else that you would like to add

with respect to this?

MR. C. PLACITELL: Just to summarize.

Under the fraudulent concealment claim, element

number five is about causation. It's not about reliance.

It is about whether there was evidence that was destroyed or

withheld that hurt the plaintiffs' case.

Different on the fraud count. Fraud, to get to the

end of fraud, I have to demonstrate reasonable reliance --

SPECIAL MASTER RIVERA-SOTO: And causation.

MR. C. PLACITELLA: -- and causation. I understand

that. So they are distinguished, and in approaching this,

that is the distinction that I raise for your Honor.

SPECIAL MASTER RIVERA-SOTO: Okay.

Now, I want you and Mr. Assaf to take two minutes

and answer the very first question, which is: Is there

anything left in the motion that is docketed under ECF 228

that I need to decide, because the sense that I have is no,

which will make denying the motion as moot really easy, and

hopefully I telegraph where I would like to go.

So take a moment and talk to Mr. Assaf, who is

already smiling.

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MR. ASSAF: Going out a limb, your Honor, I agree

with you.

MR. C. PLACITELLA: That you are smiling?

Sometimes it's hard to tell.

(Laughter)

I don't really see it on this issue.

SPECIAL MASTER RIVERA-SOTO: On anything that has

been raised under Docket ECF 228 with the response of 230,

is there anything there that you don't think we are going to

address, that is, anything there that is not already moot or

that you don't think we are going to address later on in the

scheduling conference?

MR. C. PLACITELLA: No. I think everything has

either been decided or is on the table.

SPECIAL MASTER RIVERA-SOTO: It has either been

decided or it will be addressed?

MR. C. PLACITELLA: Correct.

SPECIAL MASTER RIVERA-SOTO: Okay. So just for the

record, and by the way, for those of you unfamiliar with

Jersey practice, there will be an order following this. The

statement of reasons is what I'm going with --

MR. C. PLACITELLA: I think I just have to put the

time and the date for Mr. Assaf and I agreeing.

SPECIAL MASTER RIVERA-SOTO: It is going to have a

really big red mark on it on the record.

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It is hopefully like the last scene in Casablanca,

the beginning of a beautiful relationship.

(Laughter)

So the motion that was filed by BASF under ECF 228

and responded to by plaintiffs under ECF 230 is denied as

moot, and an appropriate order will follow.

All right. Moving right along, we get to agenda

item two. This deals with subpoenas duces tecum to third

parties. There are actually three separate third parties,

and I have a sneaking suspicion that there are people out

there in respect of each one of those subpoenas, so I think

it is better if we handle them separately understanding that

there is a fairly significant amount of overlap among them.

Okay? So let's start with --

MR. ASSAF: Your Honor, may I take one minute for a

housekeeping issue with Mr. Placitella?

SPECIAL MASTER RIVERA-SOTO: Absolutely.

(Counsel confer)

MR. ASSAF: May we go off the record for a minute?

SPECIAL MASTER RIVERA-SOTO: Absolutely, please.

(Discussion held off the record)

SPECIAL MASTER RIVERA-SOTO: Can we go back on the

record?

All right. Back on the record.

The next motion is a motion that actually saw its

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genesis in the Northern District of Ohio, where it was

docketed as ECF Number 1 in the Ohio docket, which is BASF's

motion to enforce a subpoena duces tecum to Thomas Bevan and

Bevan & Associates. That's B-e-v-a-n.

An opposition was filed by plaintiffs in the

District of Ohio under their Docket ECF 009.

The matter was then transferred to this Court and

under Docket Number ECF 279, Mr. Bevan on his behalf and on

behalf of his law firm filed a response to the motion to

enforce, and under ECF 295, BASF filed its consolidated

reply.

Specifically, what the motion alleges is that

Thomas Bevan and Bevan & Associates, and I am going to refer

to them collectively as Bevan, represented five out of the

six named plaintiffs in the case.

The motion sought through a subpoena duces tecum

documents in Bevan's files concerning litigations against

Engelhard and the resolution of the underlying asbestos

claims by the named Ohio plaintiffs' decedents.

It is argued by BASF that these documents are

relevant, that any assertion of privilege has been waived,

and that it does not create an undue burden on the third

party to produce these documents.

In opposition, again, that is Docket Number 9 in

the Northern District of Ohio case, the plaintiffs state

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that the request falls outside of the boundaries of

permitted discovery, that it poses an undue burden on Bevan,

that it is an improper attempt to get discovery from absent

class members, and that in order to grant the relief

requested, the defendants must show -- I should say the BASF

defendants must show that there is a compelling need that

there are reasons for the request, and that appropriate

procedural protections have been put in place.

I will note that in respect to this application,

the Cahill defendants did not join in it.

Now, in respect of that opposition, the plaintiffs

argue relevance. They say no showing of particularized

need, that in order to determine waiver, you have to apply

the In re Kozlov test of their need -- a showing of

legitimate need, relevance and materiality, and it cannot

be -- that it is unable to be secured from a less intrusive

source.

The argument in respect to burden is that they

point out that apparently Bevan had approximately 3000

files, where they represented plaintiffs, and therefore it

would require that the Bevan firm search 3000 files in order

to respond to the subpoena duces tecum.

Bevan filed its response under ECF 279, saying that

the subpoena seeks privilege and confidential documents that

are outside of the scope of discovery, and that compliance

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with the subpoena would put an undue burden on the Bevan

firm. They propose that BASF pay for the costs of

production. They have some estimates. Let's leave it at

that. They have some estimates as to what that entailed.

BASF filed a reply, again at ECF 295, saying that

the documents are relevant. There is no undue burden, and

specifically that all they are asking for is documents.

They are not seeking any deposition or testimony at this

point.

Mr. Assaf, your application.

MR. ASSAF: Mr. Farrell is going to argue this one,

your Honor.

SPECIAL MASTER RIVERA-SOTO: Mr. Farrell, come on

up.

MR. FARRELL: Thank you, your Honor.

MR. BLATT: Your Honor, may I note one thing in the

interim just as a correction?

THE REPORTER: Could you state your name on the

record?

MR. BLATT: David Blatt on behalf of the Cahill

defendants.

In our April 14th scope of discovery brief, ECF

Number 291-1, we did actually on Page 26 devote a section

to -- in support of the BASF application seeking discovery

from the three third-party law firms.

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SPECIAL MASTER RIVERA-SOTO: 291?

MR. BLATT: 291-1.

SPECIAL MASTER RIVERA-SOTO: I don't have that at

all.

MR. BLATT: Because those briefs, which were filed

by Mr. Placitella and also by BASF, were actually the ones

that were decided by Chief Judge Linares, so they are not

one of the pending motions, but we did actually -- I just

wanted to make sure on the record that --

SPECIAL MASTER RIVERA-SOTO: So you are now

unjoining your non joinder anyway?

(Laughter)

MR. BLATT: We are simply saying that we support

the application.

SPECIAL MASTER RIVERA-SOTO: Okay. Thank you.

Well, are you joining in the application or just

supporting it?

MR. BLATT: We support it, and I am happy to join

as well.

SPECIAL MASTER RIVERA-SOTO: Okay.

Go ahead.

MR. FARRELL: Peter Farrell.

SPECIAL MASTER RIVERA-SOTO: Just as a preclude,

there are couple of other spots where it is noted that you

joined, but the Cahill defendants filed a separate filing,

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ECF 266, that listed five different items that you joined.

Some of them don't match to what you are being said to have

joined, but we will jump off that bridge when we get to it,

okay?

MR. BLATT: Thank you, your Honor.

SPECIAL MASTER RIVERA-SOTO: Mr. Farrell, with all

of that introduction.

MR. FARRELL: Thank you, your Honor.

For the record, Peter Farrell on behalf of BASF.

I'm mindful of your Honor's comments not to repeat

our briefs, and I don't intend to do that, but I do think

there have been significant developments since the briefing

was submitted that merit discussion and highlighting today.

I think probably the most significant one to start

with is point one on the slide that I have up, which is that

the primary argument that was raised by all three of the law

firms has been rejected by the Court in Chief Judge Linares'

August 3rd opinion.

I also want to talk about the undue burden issue

that your Honor had raised, not to simply state what is

already in the briefs, but to note that since we received

Chief Judge Linares' opinion, we again reached out to all

three law firms in an effort to see if there were any

remaining issues, and we made progress on this. And, again,

no specific details were cited in terms of the undue burden

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objection. It was simply reasserted again, and in fact, the

firms have declined to participate in the meet and confer

process that all of the parties were engaged in, so that we

could come here and talk to your Honor about the discovery

schedule.

So I still think we are left at a point where there

isn't actually any substantiation for that argument, and we

are left basically just with the conclusory claim that it

would be burdensome to comply, but without anything that

really supports it.

The third point that I want to make is that it

underscores I think the points that both Mr. Assaf and Mr.

Placitella made this morning about the class issues that we

have to deal with, because I think that the arguments raised

by all three firms, including the Bevan firm, underscore the

problems that class certification would have here.

I think Mr. Placitella called this not a typical

class case, and I agree with him, and I think that these

three motions illustrate several of the ways or the many

ways that it's not typical, including the problems that we

would have actually trying to identify the supposed class

members in this case in light of the arguments that the

three law firms are raising.

So on the first point, all three --

SPECIAL MASTER RIVERA-SOTO: You can skip that

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point.

MR. FARRELL: -- all three points firms have raised

the scope of discovery issues. The reason I wanted to call

it to your Honor's attention is the Bevan's firm's point

that they had raised simply the common sense proposal that

we wait for the guidance, and that would resolve the

subpoenas.

They have since I think changed their minds on that

and are taking a simple tact as plaintiffs' counsel, which

is to say, well, there are still open questions about the

scope of discovery. Chief Judge Linares really didn't tell

us what we need to know.

I don't agree with that, as you might imagine. It

sounds like your Honor doesn't agree with it either, but I

think the key line for purposes of the three subpoenas I did

want to call to your Honor's attention to from the August

3rd opinion is this sentence from Page 19 of the opinion

that points out that the defendants are entitled to

discovery, not just of the plaintiffs' knowledge, but of

their counsel's knowledge, given the central role that

counsel play in this case by the nature of the claims.

That supports why we served these subpoenas on

these three law firms because of the central role that all

three of them have in the case.

Bevan and Early obviously as being the former

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counsel for the six class representatives, but the

Rothenberg firm as well since they were --

SPECIAL MASTER RIVERA-SOTO: Let's get to

Rothenberg when we get to Rothenberg --

MR. FARRELL: Understood, your Honor.

SPECIAL MASTER RIVERA-SOTO: -- because I don't see

on the sign-in sheet anyone on behalf of either Bevan or

Early, but there is somebody here on behalf of Rothenberg.

MR. LITTLE: Yes, sir. The sign-in sheet right

here for Rothenberg.

THE REPORTER: I'm sorry. What is your name?

MR. LITTLE: Brendan Little from Levy Konigsberg,

L-i-t-t-l-e.

SPECIAL MASTER RIVERA-SOTO: Mr. Little, would you

sign this?

MR. LITTLE: Yes.

SPECIAL MASTER RIVERA-SOTO: Just so that I'm

clear, Mr. Little, you are here for both Bevan and Early?

MR. LITTLE: Yes, that is correct.

SPECIAL MASTER RIVERA-SOTO: I'm sorry. Mr.

Farrell, go ahead.

MR. FARRELL: Thank you, your Honor.

So that takes me I think to point two because the

primary argument raised has already been rejected, and I

assume we will discuss it in greater detail when we talk

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about the scheduling of the case.

The rest of their arguments are simply the undue

burden arguments that they've made, and I think there are

two points that I want to emphasize there.

The first is the critical and unique nature of the

information that these firms have, especially in light of

Chief Judge Linares' opinion and the fact that there isn't

actually any support for the undue burden arguments that

have been made.

I wanted to point out, again, these are not people

that we picked -- that the defendants picked at random.

They are law firms that the plaintiffs put at issue in their

complaint, and I wanted to emphasize, and I thought it was

worth noting that plaintiffs' initial disclosures, in fact,

identify all three firms, the very first witness the

plaintiffs identified under their Rule 26A disclosures,

where they state that the following individuals are likely

to have discoverable information, so people who have

discoverable information, the first name listed is Tom

Bevan of the Bevan Law Firm.

And so when the defendants said, well, we would now

like that discoverable information, we are told, no, it is

off limits to you, both because of their discovery

objections, but also the undue burden point.

SPECIAL MASTER RIVERA-SOTO: So let's talk about

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undue burden.

MR. FARRELL: We also know that there are 3,000

cases that the law firms have alluded to, and I think the

reason --

SPECIAL MASTER RIVERA-SOTO: I am sorry, but I am

trying very hard to distinguish between Bevan, Early and

Rothenberg. And when you talk about 3,000 cases, that is

the Early firm, is it not?

MR. FARRELL: That is the Bevan firm, your Honor.

SPECIAL MASTER RIVERA-SOTO: The Bevan firm.

And how many did the Early firm have?

MR. FARRELL: Four cases according to their papers.

SPECIAL MASTER RIVERA-SOTO: And Rothenberg had

1800?

MR. FARRELL: According to their papers, yes. I

think that is an issue we should discuss as well, because

there is some disconnect between the law firm's numbers and

what our records have reflected so far.

But let me focus on the Bevan point because I think

it is an important one, and it illustrates a number of the

issues here.

Again, this goes to the point of undue burden is

not something that can be evaluated in a vacuum. The

question is: Well, how important is the information you are

seeking, and do we actually really need it under Chief Judge

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Linares' opinion and the claims and allegations in the

complaint.

And I think that we certainly do. The way I wanted

to try to illustrate this is just by taking two of the class

representatives, both of whom are represented -- were

represented by Mr. Bevan.

One of them is Williams, who filed a case in 1993

and voluntarily dismissed it, and the other is Mrs. Graham

who is now represented by the plaintiff Wengerd in this

case, whose claim came 15 years later, so there is a 15-year

gap between the two individuals.

We know from Chief Judge Linares, we are entitled

to discovery of what the plaintiffs' lawyers knew about

these claim and why they pursued them, and so we naturally

asked the question: Well, what happened in the intervening

15 years?

How can it be that Tom Bevan, according to

plaintiffs' allegations, believed and were convinced in 1993

that there was no asbestos in the talc, but then continued

filing, according to Mr. Bevan, thousands of additional

asbestos cases, including the Graham case 15 years later,

and then not only did not voluntarily dismiss it, but

pursued it all the way through summary judgment, and so we

sought that discovery from the law firms.

It also raises the point of why we had to do that,

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and Mr. Placitella alluded to this in his remarks earlier

today, which is to say, he said -- and I wrote this down --

that he checked the individual files of the six class

representatives, and I think that point bears emphasis,

because when we met and conferred with plaintiffs' counsel

about our discovery requests in this case, he was very clear

in saying, he went to, for the Bevan plaintiffs, the five

Bevan plaintiffs, the individual files for the five named

people, and if there was any other information that might be

relevant to the claims and defenses in this case, he didn't

even look for it. Those files were not searched. They were

not checked. They went to the Williams' file, the Darnell

file and so on for five people, and everything else is just

left to the side.

That is why we had to serve the subpoenas that we

did and why to now hear that it would be burdensome to

comply is really something that we really have to question.

The plaintiffs put the firms at issue, and then

they are saying, Well, we don't have the documents. You

need to go ask the law firms.

So then we went and we asked the law firms, and the

law firms are now telling us: It is burdensome to comply,

and most recently they were telling us: Well, you need to

talk to Mr. Placitella. He calls the shots on all the

document issues in the case, and whatever the Court and the

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plaintiffs in this case decide to do, we will comply with

that.

So the defendants are left in the position of

saying: We don't know who has the documents. We don't know

what the documents are. Nobody has identified a privilege

log. Nobody has told us how many documents there are, what

they address, what they cover.

We are in the dark on all of these issues because

of this game of Whack A Mole that's going on between

plaintiffs' counsel and the counsel for the law firms.

SPECIAL MASTER RIVERA-SOTO: And as a result, you

cannot address in an informed way whether there would be an

undue burden or not?

MR. FARRELL: That is exactly correct, your Honor.

And if there truly were some unique burden, we

would be happy to discuss that with the firms, but we have

not been given any of the details that would substantiate

those claims.

The other point I wanted to raise, because it came

up, is this absent class member argument that has been

raised, and to be clear, none of the subpoenas were directed

to absent class members. They were directed to the law

firms, who are frankly interested parties in this case,

given the nature of their relationships with the plaintiffs

and the fact that they were put at issue in the initial

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disclosures, so on and so forth. We wanted to cite and call

your Honor's attention to the Fashiola case that is cited in

our papers because it recognized this exact point.

It may well be that these third parties have

information that pertains to absent class members, but that

is a different thing than actually seeking discovery from

the absent class members. No person sitting at home in Ohio

has received a subpoena from BASF. We sent them to the law

firms that were involved in the case.

I also wanted to note plaintiffs' own discovery

plan, because I think it makes the point we are trying to

make for us. They have served subpoenas on BASF's former

lawyers, and not just any lawyers, but the lawyers who were

opposed to Mr. Bevan, Mr. Early and Mr. Rothenberg, and we

see that in their discovery plan.

Victorian Komarnicki, who we discussed this

morning, was in the Rothenberg cases and so on, and in fact

the letter that Mr. Placitella handed you this morning, the

November 12, 2008 letter from Jennifer Reister, your Honor

may have noted that it was addressed to the Bevan law firm,

and Mr. Mismas at the Bevan law firm.

So we don't understand how it can be that

plaintiffs are saying, they can serve subpoenas on third

party former law firms involved in these litigation matters,

and that is perfectly appropriate. It is not an undue

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burden in their view. It is relevant in their view, and

it's not absent class member discovery in their view.

But when the defendants served subpoenas on

plaintiffs' lawyers, who sat across the table from them in

those cases, and in fact, had the more critical information,

given the focus that we all need to have on reliance,

causation, so on and so forth, the plaintiffs and the

lawyers say: It is not relevant. It is abusive. It is an

undue burden, and it's absent class member discovery.

I just don't see how they can have it both ways on

that issue. The plaintiffs have already deposed Victoria

Komarnicki. And at the time, we even said to Mr.

Placitella, we would like the Rothenberg documents because

how are you going to take this testimony without a full

evidentiary record.

He declined to postpone the deposition, and we went

forward with it, and, you know, we have told him we would

like to talk him about avoiding that same issue going

forward, but I think the goose-gander principle needs to

apply here. If they believe they are entitled to the

discovery from these lawyers, we are, too.

SPECIAL MASTER RIVERA-SOTO: Well, Mr. Placitella's

choice to go ahead with the Komarnicki deposition is his

choice. It is an informed choice that is informed by the

rules that say: Deposition is limited to seven hours in one

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day, and if you find something out later on, he is going to

have to ask for leave of Court to redepose Ms. Komarnicki.

MR. FARRELL: I agree, your Honor.

SPECIAL MASTER RIVERA-SOTO: We will cross that

bridge when we get to it. But I think everybody ought to be

bearing in mind the notion that this is not State Court.

There are limits to depositions, and they are in the rules.

MR. FARRELL: I agree, your Honor.

The last point I want to make on the undue burden

issue is again the nature of the claim of undue burden. We

are simply just told it would take thousands of hours to

comply. I actually tried to do some of the math here, and I

think I landed at somewhere north of $20 million is the

claim that it would take to comply with our subpoena.

I have to say I find that a little bit hard to

believe since I think that the discovery that the parties

have engaged in probably doesn't cost that much, but be that

as it may --

SPECIAL MASTER RIVERA-SOTO: I think Kirkland &

Ellis, you guys have gone north of that number by now, and

if you haven't, shame on you.

(Laughter)

MR. FARRELL: I appreciate your Honor's comments.

While our client is sitting here, I am sure that he would

appreciate it.

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SPECIAL MASTER RIVERA-SOTO: Oh, I'm sorry. Your

client is here?

(Laughter)

MR. FARRELL: But the point, your Honor, is that

there has been no substantiation --

SPECIAL MASTER RIVERA-SOTO: It is money well

spent.

(Laughter)

MR. FARRELL: Thank you, your Honor.

There has been no substantiation provided for any

of this. We don't know what the documents are. There is no

privilege log. There's no explanation --

SPECIAL MASTER RIVERA-SOTO: Typically when there

is an application concerning undue burden, it is accompanied

by an affidavit or a certification in respect of it, and

it's not in this record, but we will get to hear from, I am

sure, both Mr. Placitella and Mr. Little in respect to that.

Anything else?

MR. FARRELL: The very last point I wanted to make

was the point I made about the class issues that this

presents and why we need the discovery, and I wanted to pick

up on the comments that Mr. Placitella and Mr. Assaf made.

We pulled out this one citation to the Bello case

from the District of New Jersey, but the same concept is in

Third Circuit case law from Carrera and other cases on the

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fact that a class can't be certified unless you can actually

figure out who is in it, and that is an administratively

feasible way to do that, and I know we are going to be

discussing all of those issues later today, and I don't mean

to get into them in detail, but I did want to note the

arguments that the law firms are raising because I think

they underscore those points.

I put up here a portion from the Rothenberg brief.

I know we are going to get to that later, but Bevan has made

the same point as have plaintiffs, which is to say: We

don't know who these people are. There was a plaintiff 25

years ago. They have since passed away. They now have an

heir.

Mr. Assaf alluded to the fact that in plaintiffs'

discovery plan, two of the class representatives here are on

to their second or third or fourth heirs in this case, and

plaintiffs' counsel is struggling to figure out who they

are.

So I think that this ties back into the class

points we are making, and Mr. Placitella's arguments about a

purported scorecard, which by the way, I am not actually

aware of any such scorecard. But be that as it may --

SPECIAL MASTER RIVERA-SOTO: But you will be

looking for it.

MR. FARRELL: We will be happy to look again for

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it, your Honor.

But the point is even if there were a scorecard,

and there was a person's name written down 25 years ago, the

plaintiffs and the law firms are making the point that that

is not the person that you would contact today. That is not

the person who would receive notice today. That is not the

person who would opt in or opt out of the class today. It

would be a heir. It would be a third party.

None of that information is available to

defendants. It is only available to the plaintiffs or the

plaintiffs' law firms to the extent that anybody has it, and

I think it is another factor we all need to keep in mind in

terms of pursuing this discovery and why it needs to be done

is it is not a question that's going to be answered from the

defendants. It's going to be answered by the law firms and

by plaintiffs' counsel.

Thank you, your Honor.

SPECIAL MASTER RIVERA-SOTO: Thank you.

Mr. Placitella?

MR. C. PLACITELLA: Thank you, your Honor.

So there are two issues distinct here, but related.

One is the discovery of Mr. Bevan and the plaintiffs in the

individual cases, and the discovery of Mr. Bevan as it

relates to the absent class members or putative class

members.

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SPECIAL MASTER RIVERA-SOTO: I prefer the term

putative class members --

MR. C. PLACITELLA: Putative.

SPECIAL MASTER RIVERA-SOTO: -- because they are

not absent, they're just putative.

MR. C. PLACITELLA: Putative.

SPECIAL MASTER RIVERA-SOTO: No one is lost.

MR. C. PLACITELLA: As it relates to the

representative class members, we may have agreement.

I believe that they are entitled to at least some

of the information that they are seeking, not all of it, not

to relitigate the merits of the underlying case, but I

believe they are entitled to any documents that we have

related to what was told to Mr. Bevan or what Mr. Bevan knew

or what Mr. Bevan communicated to the six representative

plaintiffs. I believe they are entitled to that.

Now, it is a whole other issue of whether it exists

or not, but theoretically I believe they are entitled to

that, and I may not love it, but I accept the decision of

the Court, and I understand that that is our obligation, and

that we are carrying out that obligation.

So that I don't think is really the thing that we

are -- I think we can kind of agree on that. We might go

back and forth on what the parameters actually mean, and we

can do that later on, but in a global sense first. They

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have an electronic database of every case that is word

searchable that they have ever been in, okay?

I took their corporate representative, and that is

what he said to me in the State Court, that every case

they've ever been in, they have scanned an OCR. So if they

want to find the case -- the information on a given

plaintiff, they can do that.

SPECIAL MASTER RIVERA-SOTO: But what they don't

have access to, I don't think, is the communications that

the Court has already determined are discoverable --

MR. C. PLACITELLA: Yes.

SPECIAL MASTER RIVERA-SOTO: -- and in respect of

the putative class members, at some point or another --

MR. C. PLACITELLA: Well, at some point --

SPECIAL MASTER RIVERA-SOTO: -- well, but the

problem is that in order for the defendants to properly

prepare to oppose the motion for class certification, that

information is going to have to be made available to you --

MR. C. PLACITELLA: Well, I totally --

SPECIAL MASTER RIVERA-SOTO: -- and if that is the

case, then why are we here?

MR. C. PLACITELLA: -- I totally disagree with that

for the -- and I want to give you my analysis --

SPECIAL MASTER RIVERA-SOTO: Okay.

MR. C. PLACITELLA: -- of why.

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That issue only becomes ripe, the reliance issue in

the fraud case, if it is ever even certified, right?

Only becomes ripe at the point in time that that

client or that putative class member decides he is going to

participate.

SPECIAL MASTER RIVERA-SOTO: But forget about

reliance, because the common issue throughout your entire

case, whether it's your fraudulent concealment claim, your

fraud claim, or your civil conspiracy claim is causation,

and you have to tie A to B --

MR. C. PLACITELLA: Yes.

SPECIAL MASTER RIVERA-SOTO: -- and it seems to me

that the Court has already determined, Chief Judge Linares

has said very clearly that in respect to causation, there

will be discovery of plaintiffs' lawyers' files concerning

the communications with their clients as to why they settled

or dismissed or did whatever they did in respect to the

cases.

Now, we know that that is at least the boundaries

of what we need to discuss. We also need to draw into the

notion that at least in respect of defending against your

class certification application, they are going to need to

know whether the elements of Rule 23, as the Third Circuit

has defined in Hydrogen Peroxide, and has more recently

defined in respect to ascertainability, that these are

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actual proper class members because let's take a

hypothetical.

You have six representative plaintiffs, and they

may have commonality of issues and commonality of facts and

all of that other stuff that you need under Rule 23, but

when folks start digging into the class members themselves,

which are reasonably identifiable, and it may turn out that

there is no commonality in respect of them.

Aren't they able to then bring that to the Court's

attention to say, the class as it has been defined by the

plaintiffs is too broad because, look, you have all of these

people who do not satisfy the same criteria as the

representative plaintiffs?

I mean, that is -- I am not speaking sand script.

That is a pretty basic Rule 23-101 type of analysis.

MR. C. PLACITELLA: But the question first is, and

I am happy to answer that question and come back to the

Bevan issue, I am happy to answer your question now.

You don't get to -- so let's just talk about who

these people are because I think it matters, okay, in terms

of the class, the putative class members. They don't know

the case exists. They don't know they were defrauded --

SPECIAL MASTER RIVERA-SOTO: But they are not

asking the putative class members anything --

MR. C. PLACITELLA: They are --

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SPECIAL MASTER RIVERA-SOTO: -- they are asking the

lawyers.

MR. C. PLACITELLA: -- they are asking them for

their files, which are owned by the class members. Those

files belong to the class members, right --

SPECIAL MASTER RIVERA-SOTO: No --

MR. C. PLACITELLA: -- the putative class

members --

SPECIAL MASTER RIVERA-SOTO: -- it seems to me then

you have a choice to make, because if you are seeking to

represent those people at some point or another, you are

going to have to be able to produce that information, and it

is not going to be after the class is certified because all

of that is going to produce is a motion to decertify the

class later on, after the discovery has been had.

So at some point or another, that information is

going to have to be produced, if you insist that they belong

in your class.

If you choose to say no, they don't, then there is

no basis for the discovery.

But to the extent, as I read Chief Judge Linares'

decision, to the extent that these people are included in

your class, and with all due respect, your class definition

is incredibly wrong, so all of these people fall under it,

and again, I don't blame you for that. That is how you have

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to start out, and then you narrow it along the way. But

right now the state of the record is you have a huge

definition in respective class members, and the defendants

are entitled to nitpick.

MR. C. PLACITELLA: They may be entitled to

nitpick, but here is the issue. The people don't know they

are members or putative class members. Part of the relief

that we seek is notice, so those people can make a decision,

right?

That is part of the relief. That is part of the

relief that was addressed and recognized by the Third

Circuit. They said: One of the things we may be entitled

to as class relief is notice to the people who are affected,

so --

SPECIAL MASTER RIVERA-SOTO: Well, there is nothing

about notice, unless I totally missed it, there is nothing

about notice in your opposition to the Bevan application or

for that matter to the Early or Rothenberg matters. There

is nothing about notice, and you have not filed a Rule 23

motion yet, so the whole notion of notice to potential class

members is not before me.

MR. C. PLACITELLA: But, your Honor, the problem

here is that they want access to people's files that are

privileged. They own that privilege.

SPECIAL MASTER RIVERA-SOTO: They want access to

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people's files that you say are part of your class, and if

so, the privilege has been waived. That is what Chief Judge

Linares said.

MR. C. PLACITELLA: They write in their scope

brief: BASF does not understand how plaintiffs could

purport to do so, which itself is another reason why the

class can't be certified.

They say that the people did not waive their

privilege. They say it themselves. The mere fact that we

identify somebody as a putative chance member doesn't mean

that their privilege is waived. There is no law that would

support that. They have a right first, and we did ask, as

part of our class, once we prove the basic elements, the

people have a right to know whether they are in or they're

out and to make a decision.

There is no client consent here. Mr. Rothenberg

can't just turn around and hand over client files. Mr.

Bevan can't just turn around and hand over client files.

SPECIAL MASTER RIVERA-SOTO: Well, they can, if

they are ordered to.

MR. C. PLACITELLA: That would be a violation of

their client's rights --

SPECIAL MASTER RIVERA-SOTO: I don't understand

that, I really don't, and I am trying to get my head around

it, because it seems to me that it may be a Hobson's choice,

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but it is a choice nonetheless. If you want to assert the

claim, then your privilege is waived. But if you don't want

to waive your privilege, you can't assert the claim.

MR. C. PLACITELLA: Well, we waived it, your Honor,

under Judge Linares's ruling for the representative class

members. We can't, I submit, waive it for putative class

members. Even BASF says that that is so.

We can't waive it. Just because we identify

somebody as a putative class member does not mean that we

have the capacity or the authority to do that. That was

not -- that was not the intent.

SPECIAL MASTER RIVERA-SOTO: So if I agree with

you, this is the net result, there will be discovery only in

respect of the six class representatives.

You will file a motion for class certification

saying that those six representative plaintiffs are

representative plaintiffs. They are adequate. You are

adequate as counsel. You have commonality of issues and

facts. All of this other stuff, and there is a defined

class that you are seeking to have certified.

If that class gets certified, doesn't discovery

have to reopen?

MR. C. PLACITELLA: The discovery, if people decide

to come forward -- I am just --

SPECIAL MASTER RIVERA-SOTO: That is not how it

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works. That is not how it works, because the way it works

is once you have a class certification decision, you send

notices out, and it is the obligation of the individual

plaintiff to opt out --

MR. C. PLACITELLA: I agree with you --

SPECIAL MASTER RIVERA-SOTO: -- if they don't opt

out, they are in.

MR. C. PLACITELLA: -- I agree with that. But we

don't get to the putative class members until we have a

certified class that you've ruled upon. We elected to make

these six people the representative plaintiffs.

I do agree, they get to ask Mr. Bevan some broad

questions. His counsel can speak for himself, but we don't

get to discovery of putative class members until we know

there is a class. That is why they are putative class

members.

SPECIAL MASTER RIVERA-SOTO: So your short answer

to my short question is: Under your theory, we don't get to

the discovery of those files until such time as the class

has been certified.

MR. C. PLACITELLA: Under the individual files, I

believe that that is correct.

SPECIAL MASTER RIVERA-SOTO: Other than those of

the representative class members.

MR. C. PLACITELLA: I believe that is correct,

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but --

SPECIAL MASTER RIVERA-SOTO: And at that point, it

would then be the obligation of the defendants, if they find

material in those files that shows that any one or more of

these now class members are not really members of the class,

they then have to file a motion to decertify?

MR. C. PLACITELLA: No.

If those people don't qualify, they don't qualify.

If they don't -- if they can't prove causation in

their case, they can't prove causation in their case, they

don't participate, but -- but --

SPECIAL MASTER RIVERA-SOTO: That is not the way

class actions work, Counsel.

MR. C. PLACITELLA: Well, in cases I have been

involved with, there is a distinction between an issues

class and damages, and you can have a certified issues

class, and then you can deal with individual damages. It's

done all of the time --

SPECIAL MASTER RIVERA-SOTO: I understand that --

MR. C. PLACITELLA: -- there are many cases --

SPECIAL MASTER RIVERA-SOTO: -- but as far as I am

concerned, the only class I have seen here is a class for

both liability and damages. There is no distinction drawn

in your second amended complaint.

MR. C. PLACITELLA: We have not filed our class

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certification motion, where we would flush that out, and we

wouldn't be in the position to do that until such time as we

get the discovery from the defendants, so we can make our

best case on that.

SPECIAL MASTER RIVERA-SOTO: And what discovery

from the defendants is it that you are lacking?

MR. C. PLACITELLA: I am lacking the information --

the representations or the communications that they had with

the various plaintiffs' counsel from around the country. I

only have a handful of it. I am lacking information that

they are holding under seal. I am lacking some limited --

SPECIAL MASTER RIVERA-SOTO: They are holding it

under seal, but not disclosed to you under --

MR. C. PLACITELLA: I know there are things on

privilege logs that I have identified that I think that you

need to deal with.

SPECIAL MASTER RIVERA-SOTO: I misunderstood what

you were saying.

When you say "under seal," that to me means

under --

MR. C. PLACITELLA: Understood.

SPECIAL MASTER RIVERA-SOTO: -- under a discovery

confidentiality order --

MR. C. PLACITELLA: No, no, no --

SPECIAL MASTER RIVERA-SOTO: -- the rest of the

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world doesn't see it, but you do.

MR. C. PLACITELLA: -- no, no, no. I misspoke.

SPECIAL MASTER RIVERA-SOTO: Okay.

MR. C. PLACITELLA: I believe in looking at the

privilege logs, that there is information that you need to

take a look at. I believe I need some limited discovery on

class action -- on class certification of the defendants,

not much, probably five or six depositions, including the

ones, you know, that have been noticed, not a lot, to get

there. Then we are in a much more ripe place.

But, for example, when you talk about burden, and

you talk about what do you have to prove, Mr. Placitella.

If, for example, in the Rothenberg case they had

represented --

SPECIAL MASTER RIVERA-SOTO: I am trying really,

really hard to deal with each one of them individually.

MR. C. PLACITELLA: -- okay.

Well, this is an example, but it could exist for

Mr. Bevan as well. We don't know.

If there is a database, where they admit who is in

and who is out based upon the representations that were made

or the unavailability of evidence, that would dramatically

curtail whatever would be looked for from the defendants.

SPECIAL MASTER RIVERA-SOTO: Has a specific request

for production been made for the database?

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MR. C. PLACITELLA: I believe Michael says yes. I

know we had conversations about it. For example, with

respect to --

SPECIAL MASTER RIVERA-SOTO: Let me interrupt. I'm

sorry to interrupt you.

Mr. Assaf, is that correct?

Mr. Farrell, I'm sorry.

MR. FARRELL: The question of whether it has been

asked for?

SPECIAL MASTER RIVERA-SOTO: Yes. Has it been

requested?

MR. FARRELL: It has been requested, your Honor.

We have met and conferred about it, and in fact it's already

been provided to plaintiffs' counsel.

MR. C. PLACITELLA: I don't have such a database.

SPECIAL MASTER RIVERA-SOTO: See, that is a

problem, because when a lawyer stands in front of me and

says I have X, and another lawyer says, non X, I have a

problem because I start from the proposition that whatever a

lawyer tells me, I can take to the bank.

MR. C. PLACITELLA: I don't know of any database,

your Honor, where the defendants articulate that this case

was dismissed and the reason for it, and if that exists,

then someone should show it to me because I have been asking

for it.

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SPECIAL MASTER RIVERA-SOTO: Mr. Farrell I think is

going to help you.

MR. FARRELL: I would be happy to answer the

question. I have already answered it for Mr. Placitella

probably half a dozen times, but this is the circumstance,

your Honor.

SPECIAL MASTER RIVERA-SOTO: Answer it once for me.

MR. FARRELL: I would be happy to.

To my knowledge, there is no such comprehensive

database of all plaintiffs, that includes the reasons why

their cases were dismissed.

There are, I believe, two databases, both of which

have been produced to plaintiffs' counsel in the context of

the mediation and the settlement discussions that occurred

in this case. Those databases are of marginal utility, I

would submit to your Honor. Mr. Placitella knows that.

They don't indicate why cases were dismissed and why they

were or were not settled.

They just have some information about some cases

from some jurisdictions. It is not comprehensive, and it

doesn't answer the question that he has raised.

SPECIAL MASTER RIVERA-SOTO: Well, whatever you

have, you have turned it over?

MR. FARRELL: It has been produced to him in the

context of the mediation, and we have met and conferred with

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them about producing to them again in this case under

appropriate confidentiality provisions. Yes, your Honor.

SPECIAL MASTER RIVERA-SOTO: Well, there is a

discovery confidentiality order, which doesn't take a great

deal of lift for the lawyers to be able to say, we are

producing this either confidential or attorneys' eyes only,

or whatever it is, the category that you want to put it

under. So I am not getting why we are talking about this

today.

MR. FARRELL: Well, we are talking about it today

because Mr. Placitella has raised it.

The reason that it has not been produced yet

despite there being a discovery confidentiality order is

that frankly, the database contains work product. It was

prepared by outside counsel in the context of the

litigation. We had talked to Mr. Placitella about --

SPECIAL MASTER RIVERA-SOTO: In the context of this

litigation?

MR. FARRELL: No. In the context of the 25 years

of historical litigation that was conducted, and so we have

talked about a process for producing it under appropriate

protections that would preserve work product, so on and so

forth, and that is the issue, something I suspect we will

discuss again later today.

SPECIAL MASTER RIVERA-SOTO: Yes, we will.

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MR. C. PLACITELLA: Yes, your Honor.

So I don't know what I am allowed to talk about

with the mediation. I guess it's been --

SPECIAL MASTER RIVERA-SOTO: Hopefully not a lot.

The local rules are pretty clear --

MR. C. PLACITELLA: That is what I thought.

SPECIAL MASTER RIVERA-SOTO: -- about what you can

or cannot talk about in respect to mediation.

All I know is that it has been produced in a

different context. They have had discussions with you about

producing in this context. That is what I am told. If that

is not correct, then I certainly hope that those discussions

are going to happen fairly soon, and that a resolution is

going to be reached fairly soon, but let me make it clear.

If the documents exist, they are to being produced.

MR. C. PLACITELLA: So, your Honor --

SPECIAL MASTER RIVERA-SOTO: Does that get you

where you need to go, Mr. Placitella?

MR. C. PLACITELLA: Almost.

So they say it is all not in this database --

SPECIAL MASTER RIVERA-SOTO: You are going to get

whatever they have.

MR. C. PLACITELLA: -- but they do have records,

otherwise they could not write that letter that I put before

you, where they kept track by state of why cases were

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dismissed.

SPECIAL MASTER RIVERA-SOTO: Well, a lawyer in Ohio

had a list. That is all that letter tells me.

MR. C. PLACITELLA: Well, I think, your Honor, that

lawyer was local counsel, and as I understand it, all of

that information came directly from defendant Cahill. There

was no way the lawyer in Ohio would have had that

information. That came from a central place.

Example: You say why do you need this information

for Mr. Bevan?

Well, if you look -- if you look, for example, I

know I'm not allowed to say the word Rothenberg, so I'm

going to say it as an example --

SPECIAL MASTER RIVERA-SOTO: The "R" word, the "R"

word.

MR. C. PLACITELLA: Okay.

Mr. R., okay, but they have certified as officers

of the court, on at least six occasions that I could locate

based on their limited production so far, that all of the

Rothenberg cases were dismissed because they accepted BASF's

and Engelhard's representation that there was no asbestos in

the talc.

They accepted it. They as officers of the court

went to other lawyers and said that. There is no reason for

discovery of Mr. Rothenberg's files. As officers of the

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court, they are bound by those representations.

SPECIAL MASTER RIVERA-SOTO: I think you are mixing

apples and oranges --

MR. C. PLACITELLA: Well, we're talking --

SPECIAL MASTER RIVERA-SOTO: -- respectfully,

because you are focusing on the alleged misdeeds by the

defendants when what we really should be talking about is

the plaintiffs' claims of privilege in respect of the lawyer

files held by third parties --

MR. C. PLACITELLA: Yes, your Honor. But what

I'm --

SPECIAL MASTER RIVERA-SOTO: -- and the two are

separate in my head --

MR. C. PLACITELLA: -- but one of issues that you

have to address is relative burden --

SPECIAL MASTER RIVERA-SOTO: Okay.

MR. C. PLACITELLA: -- and the relative burden, you

have to look at what is in their files first. Did they get

to go have Mr. Rothenberg, who is not a party to this case,

who runs an independent law firm, do they get to make him go

through all of that, if they have files in their possession

that say Mr. Jones from the Rothenberg case was dismissed,

they accepted the representation there was no asbestos in

the talc.

SPECIAL MASTER RIVERA-SOTO: That is fine, but that

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doesn't go as far as I think is necessary under the

circumstances, because they may have whatever their files

may have.

What they do not have is then what was communicated

by Mr. Rothenberg to -- I know I shouldn't be using the "R"

word -- but to whomever, to Mr. Bevan staying with him, by

him to his clients, that caused the acceptance of either a

low or no money settlement or dismissal, and isn't that --

MR. C. PLACITELLA: No. Rothenberg is easy,

because Rothenberg's cases were all dismissed and --

SPECIAL MASTER RIVERA-SOTO: But based on what?

MR. C. PLACITELLA: Based upon --

SPECIAL MASTER RIVERA-SOTO: You can't just say --

MR. C. PLACITELLA: -- based upon their --

SPECIAL MASTER RIVERA-SOTO: You can say that.

MR. C. PLACITELLA: -- I don't have to say it, your

Honor. It is in -- and I'll hand you these -- it's in the

letters that they wrote to six different lawyers saying that

every one of Mr. Rothenberg's cases were dismissed because

of the representation that there was no asbestos in the

talc.

Why did they get to even ask Mr. Rothenberg?

They --

SPECIAL MASTER RIVERA-SOTO: Because Mr.

Rothenberg's file may contain --

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MR. C. PLACITELLA: But they didn't --

SPECIAL MASTER RIVERA-SOTO: -- bear with me,

please.

Mr. Rothenberg's files may contain communications

between Mr. Rothenberg and his clients that say something

different than that --

MR. C. PLACITELLA: But they admitted it otherwise,

your Honor. They are bound by their conduct.

They can't as officers of the court go and make

those representations to courts and to other lawyers and

say, oh, we want to test whether that happened.

They already admitted it. Causation, as it relates

to Rothenberg, is proven by admission, so you can prove --

SPECIAL MASTER RIVERA-SOTO: I don't agree with

you, Mr. Placitella.

MR. C. PLACITELLA: -- so what I would like for

your Honor before you make a decision is I'm just going to

hand you up a -- and I have one for everybody -- the group

of letters and representations, and there are probably many

more, and this is just what I could find, you know, during

late night searches.

(Document handed to the Court)

SPECIAL MASTER RIVERA-SOTO: Can I ask that you

produce only those that were the result of searches done

during daylight hours?

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(Laughter)

MR. C. PLACITELLA: Yes, your Honor, but --

SPECIAL MASTER RIVERA-SOTO: And I say that because

I was getting letters last night from people, who like my

wife, think that I have nothing else to do.

MR. C. PLACITELLA: I have been accused of the same

thing of not having a life, so I understand that.

But in addressing the issue of burden, before we

get to Rothenberg, Early, Bevan, we should see what is in

their files, because if their files demonstrate like those

letters do, that they -- and I highlighted it, so it would

be easy to find the representations, they say --

SPECIAL MASTER RIVERA-SOTO: It's lost on the --

MR. C. PLACITELLA: Yes, yes.

Well, I'll have to remember that for the next

time --

SPECIAL MASTER RIVERA-SOTO: -- I can tell shapes.

That is okay.

MR. C. PLACITELLA: -- so if their records admit

that, then when you are weighing the burden under Rule 26,

you have to make that judgment. At least let them come

forward with some other showing to say, you know what, all

of those things that we said, all of the things that we said

to judges about why Rothenberg's cases were dismissed, all

of those things that we said to other lawyers as officers of

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the court, that really wasn't -- we knew that wasn't true,

and we still get to test the proposition and make Mr.

Rothenberg stop his law practice as a non party to this

case, or make Mr. Bevan, because he represented the six

plaintiffs, produced everything else, and when you are

making these decisions --

SPECIAL MASTER RIVERA-SOTO: I thought Mr. Bevan

represented five --

MR. C. PLACITELLA: Five. Five. I'm sorry.

You're correct.

SPECIAL MASTER RIVERA-SOTO: You said five, and you

showed me four fingers, so --

(Laughter)

MR. C. PLACITELLA: Well, you are right.

SPECIAL MASTER RIVERA-SOTO: -- you know, I am

enumerating, so you are making it hard for me.

(Laughter)

MR. C. PLACITELLA: I understand.

So we have core issues here. There are people who

are absent class members or putative class members, they

don't know the case exists. One of the pieces of relief we

ask is to let them know.

So maybe if you really -- and we can talk this

through, and I don't want to be held to this, but maybe the

issue is we look at the issues class for the first four

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elements and see if it is certifiable. And if it is, then

give Rothenberg notice and give Bevan's clients notice and

anybody else who has notice, and then we will get to whether

it is appropriate or not.

I don't want to be bound by that. I'm just having

a conversation, but --

SPECIAL MASTER RIVERA-SOTO: That application is

not before me --

MR. C. PLACITELLA: It's not before you.

SPECIAL MASTER RIVERA-SOTO: -- the only

application that is before me is a motion to enforce a

third-party subpoena.

MR. C. PLACITELLA: Correct.

And the motion to enforce a third-party subpoena is

to have lawyers turn over files of people they represent,

some of whom they have had no contact for many years, some

of whom, many of whom, as Mr. Assaf said or Mr. Farrell

said, may be heirs that own the privilege, and the issue is:

Can those lawyers be made to turn over what would otherwise

be privileged information, just because the people they

represent are putative class members.

And in that context, you have to look at Rule 26

and proportionality. It does not matter that it is just

relevant because arguably it is relevant. It matters under

proportionality, and in deciding proportionality, you first

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off have to figure out what is in the possession of the

defendant.

They say that they gave me this database. I guess

it is out in the open now, but that -- there is more.

There has to be more or they couldn't have written the

scorecard letter. They couldn't have made the

representations about -- they have to have more.

So before we burden these law firms, I will sit

down, because I know I'm trying your patience --

SPECIAL MASTER RIVERA-SOTO: No, you are not.

MR. C. PLACITELLA: -- before we burden these law

firms, we need to know what is in their files, because --

SPECIAL MASTER RIVERA-SOTO: Well, I --

MR. C. PLACITELLA: -- if it's redundant, don't

forget, and I will tell you, for example, I'll tell you what

happened at one of the plaintiffs' depositions.

They had I think it was Mrs. Holley, they asked

questions of Mrs. Holley, and they had all kinds of

documents from Mrs. Holley's file that the plaintiffs'

lawyer didn't have, that Mrs. Holley didn't have, but they

had --

SPECIAL MASTER RIVERA-SOTO: Well, they are better

at record keeping --

MR. C. PLACITELLA: -- because they have -- because

they have an electronic database of every file.

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SPECIAL MASTER RIVERA-SOTO: But an electronic

database by definition will not include the communications

between the then plaintiffs' lawyers and their clients --

MR. C. PLACITELLA: Well, that's true.

SPECIAL MASTER RIVERA-SOTO: -- it's not going to

include that.

MR. C. PLACITELLA: That's true.

SPECIAL MASTER RIVERA-SOTO: So -- then that's what

they are asking for --

MR. C. PLACITELLA: That's true.

SPECIAL MASTER RIVERA-SOTO: -- when the rubber

meets the road here, they are not asking for, let me go

through your entire file. You know, they don't want to look

at the complaint that was filed in Cuyahoga County. They're

not interested ---

MR. C. PLACITELLA: No. They want the medical

records. They want the exposure --

SPECIAL MASTER RIVERA-SOTO: -- they want the

information that they don't already have. That's all

they're asking for.

MR. C. PLACITELLA: The only information they don't

have access to, if it exists, and I would propose that it

probably doesn't exist, it probably does not exist, but, you

know, we are not there, whether there was a written

communication between, for example, Mr. Bevan and Mrs. Jones

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about the reason for that dismissal.

SPECIAL MASTER RIVERA-SOTO: Or handwritten notes

to that effect or an email or whatever.

MR. C. PLACITELLA: I understand.

SPECIAL MASTER RIVERA-SOTO: Mr. Placitella, you

and I have been at this for a long time, and you and I in

every single case, I am sure, have come to the conclusion

when we are going through a production of documents, looked

at it and said, how did this ever survive and find its way

here.

I think that is what they are looking for, and I

think they are entitled to it.

SPECIAL MASTER RIVERA-SOTO: I agree with you on

the representative cases. I don't agree respectfully on the

putative cases.

I believe that they need to put up their

information first, so you can make an evaluation as to

whether the burden on these people is justified, because if

they admit it internally, and those are the representations

that they made, then that should complete element number

five in the fraudulent concealment element.

SPECIAL MASTER RIVERA-SOTO: Only as to those

plaintiffs, not as to the entire class.

MR. C. PLACITELLA: That's correct.

SPECIAL MASTER RIVERA-SOTO: Mr. Little?

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And, again, Mr. Little, we're just talking about

Bevan's motion to enforce --

MR. LITTLE: I understand.

SPECIAL MASTER RIVERA-SOTO: -- so if you can

address that, that would be great.

MR. LITTLE: Of course.

First of all, I would like to correct two matters

BASF has represented about the meet and confer process and

the offer to avoid expense.

The meet and confer process that he is referring to

that we declined to engage in had to do with the scheduling

order in the case. I don't think non parties have a reason

to be there, so we were not present at those conversations.

Regarding the offer to avoid expense, this was an

offer that was made, a proposal, to avoid the expense of

having to brief these motions. Once the motions were filed,

the reason to undertake this effort went away, so those two

things are non issues.

Regarding the burden, I think that counsel can make

representations about facts within their own knowledge, but

I would be happy to supplement the details that have already

been provided about the burden that it places on the Bevan

firm with an affidavit. I would actually make an

application that we be allowed to do that, if that is

something that's --

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SPECIAL MASTER RIVERA-SOTO: Well, wasn't the time

for that back in January and April?

MR. LITTLE: Again, I think that the question is

whether there is a burden, and whether it's substantial, and

I think that counsel can make representations in their

briefing, and that would be considered factual

representations about matters that are within their own

knowledge.

SPECIAL MASTER RIVERA-SOTO: I couldn't disagree

with you more.

Counsel don't get to make factual representations

in briefs that are not supported by affidavits or

certifications, because facts are supposed to be supported

by personal knowledge, and I could not --

MR. LITTLE: Correct.

SPECIAL MASTER RIVERA-SOTO: -- and if it's the

lawyer who has got the personal knowledge, then it is that

lawyer's obligation to submit a supporting certification or

affidavit.

There were none submitted here, so all I have are

naked assertions of burden, that I can't remember in respect

of which one of these it was. It might apply to all of

them. When I looked at them, I thought to myself, this is

crazy. I can't possibly take that much time to go through a

file that you ended up dismissing.

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MR. LITTLE: Right.

And I think that the problem is that the burden

that we are talking about here is really hypothetical, and

so in terms of estimating, you have the amount of time, and

I think that is something that counsel for a party or a non

party can do, and it's my fault, and that should have been

in a declaration as opposed to in the briefing, and I would

be happy to supplement the record, if that would ease the

burden analysis. But the facts are not really --

SPECIAL MASTER RIVERA-SOTO: It is a little late

for that, isn't it?

MR. LITTLE: -- the facts are not really in dispute

and --

SPECIAL MASTER RIVERA-SOTO: I don't agree with

you, because one of the facts that you bear the burden of

showing, you have objected to the motion to enforce by

saying that it would involve an undue burden on your client.

Part of your burden of production and of persuasion is to

submit to the Court factual bases for that allegation.

It is only an allegation that is made in a brief.

It is not supported anywhere, and the reason for that is

really very simple. Courts make decisions on facts. Facts

get proven in a certain way.

When people make representations in respect to

facts, if it's done in a proper way, there is a guarantee

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that it is correct because there are penalties attached to

incorrect statements. If you submit an affidavit, that is

under oath, that is perjury,

If you use the certification process that is

permitted under Title 28 of the United States Code, you are

making a certification under penalties of perjury, even

though it is unsworn, so there are penalties that attach

there. The same is true in respect to the declaration,

because that is the same thing as a certification under our

rules.

So when I looked at this application, I kept asking

myself, I understand they are arguing undue burden, but

where is the proof of it, and that is your burden to show,

and it's not there.

Now, I can assume that asking someone to review

3,000 files is burdensome. I don't think there is anyone in

this courtroom that would disagree on that. That is

burdensome, particularly in a matter in which you don't have

a dog in the fight, which you said you don't, but I am not

so sure that that's correct. But, be that as it may, what

am I going to base the decision on?

I can't make a decision on burden. I really can't,

and the only thing that I can do candidly is say: I am

going to grant the relief that is requested, and I am going

to deny without prejudice the application for cost shifting

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for sometime later on.

After it is all said and done, and you have kept

the records of the time that was in fact expended and the

expenses that were in fact incurred in making this

production, you are coming back and saying this is what it

cost us. It is disproportionate to what it should have

been. It's an undue burden. Someone should pay.

But right now I have nothing on which to decide,

and it is an infirmity that you represent also Mr. Early and

his law firm, and I have the same problem there.

MR. LITTLE: I would be happy to provide additional

information on it.

I think that I have seen case law that says counsel

when they're representing a party can make representations

about things like the amount of time that it takes. I think

there are statements I could give now --

SPECIAL MASTER RIVERA-SOTO: I have been a lawyer

for 40 years. I have never seen that happen, never. And I

don't mean to be harsh about it, but I never seen that

happen. In 40 years, I don't think there are many people in

this courtroom who have been at it longer than me.

MR. LITTLE: Would you be willing to accept a

supplement to the record?

SPECIAL MASTER RIVERA-SOTO: I will make that

determination later.

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MR. LITTLE: Okay.

SPECIAL MASTER RIVERA-SOTO: But I understand. I

will take your application for leave to follow something up.

And take that into consideration.

MR. LITTLE: Thak you.

SPECIAL MASTER RIVERA-SOTO: Anything else you

would like to add?

MR. LITTLE: Yes.

Moving past the issue of burden, the key problem

here is that our client, the Bevan firm, as well as the

Early firm, they're between a rock and a hard place, okay?

The layers of privilege and confidentiality and --

SPECIAL MASTER RIVERA-SOTO: Are not their concern.

They are my concern.

MR. LITTLE: Right.

And physician -- physician-patient privilege --

SPECIAL MASTER RIVERA-SOTO: They're their concern.

Privilege issues are my concern.

MR. LITTLE: I understand.

SPECIAL MASTER RIVERA-SOTO: Your client's concern

is compliance with the subpoena duces tecum.

If there are matters within that compliance that

are privileged, you could mark them as such, create a

privilege log. You have them available, and somebody else

will make the decision whether they are to be disclosed or

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not, and the mechanism for how we are going to do that is

something that we are going to talk about later on, but that

is really not your concern.

Your concern is just producing the information, if

it's privileged, you put it on a privilege log. You

segregate the privileged information, and you have it really

available for disclosure.

MR. LITTLE: If there is one case that I can

present to you on that issue, and this is a unique situation

because we are not just talking about one file or a party

that has received a subpoena that does not have an

independent obligation to that client, and that is the

Sonoma County case that I cited in the brief on Page 9.

And there the Court held that the burden of

producing the privilege log, again, we are going back to

burden, but the amount of time that it would take to create

a privilege log in itself requires the cost shifting to

occur before that can even occur.

So in this case, especially with regard to putative

class members, you know, before that process can even occur,

we would -- our position is there has to be cost shifting

that is awarded, that is ordered, before that process can

occur, and there is another case I cited earlier in the

brief --

SPECIAL MASTER RIVERA-SOTO: Why? I don't

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understand why.

MR. LITTLE: Well, for predictability. Once the

scope of what is ordered is decided, that is really the only

time when you are going to know how much burden it's going

to cost, and you know, they could make the decision whether

they are going to incur that or not.

SPECIAL MASTER RIVERA-SOTO: I find that difficult

to comprehend. Let me tell you why. It would require

making a decision in a vacuum, and I don't think courts like

to make decisions in a vacuum. You make decisions based

upon facts.

MR. LITTLE: Would you like to hear more

information about what is in these files and what exists as

to the responsive documents?

SPECIAL MASTER RIVERA-SOTO: 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. As far as I am

concerned, there is already a determination made by the

record custodian as to what is important and what isn't.

What is left is what's important, and somebody needs to look

at that.

The way that you do that, at least the way that

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I've always done it, is lawyers take a customary review.

They determine what they think might be privileged or might

not be privileged. They segregate out what they think is

privileged, and they create a privilege log, and then they

take all of the other stuff, and they put Bates numbers on

them and they produce it.

You know, we are not doing magic here.

MR. LITTLE: I understand. I think I can provide a

lot information about different categories and different

layers of --

SPECIAL MASTER RIVERA-SOTO: And I would have loved

to have had that, so that I could have reviewed it before I

came here today.

MR. LITTLE: Well, I think that we're able to talk

about it even hypothetically because it is uniform across

the entire universe of documents that we are talking about,

but if you need that information in front of you, I

understand that, and again, we would just ask leave to

supplement the record --

SPECIAL MASTER RIVERA-SOTO: See, my problem, Mr.

Little, is that it is not only unfair to me, but it is

unfair to the parties, because they have not had the

opportunity to look at what it is that you want to present

now and address it in an informed way.

That's not how our system works. We give people

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notice and the opportunity to reply.

You don't come in at the 11th hour and say, oh, by

the way, there is all this stuff, and maybe I should have

given it to you three weeks ago, but here it is now.

I will tell you 99.999 percent of the time, you do

that to a Court, and that judge is going to get really

cranky with you. I hopefully have not been really cranky

with you, but I am concerned.

MR. LITTLE: And we hear your concerns.

I would just say that the cases that we cited in

our brief stand for the proposition that the award of costs

should happen before that process takes place.

And this case is a better example of that than

either of the cases that we cited. I know it's unusual, and

I know that it doesn't fall in line with a lot of the other

production that you may have had in your experience, but

that is what these cases say, and we would ask for the same

thing, your Honor.

SPECIAL MASTER RIVERA-SOTO: Is there anything else

you would like to address?

MR. LITTLE: That is it.

SPECIAL MASTER RIVERA-SOTO: Well, you are going to

get two more chances, though -- one more chance, sorry.

MR. C. PLACITELLA: I did forget one thing,

which --

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SPECIAL MASTER RIVERA-SOTO: We can't have that,

Mr. Placitella. You cannot be forgetting things.

Come on up.

(Laughter)

MR. C. PLACITELLA: So I wrote it down, and I

forgot to address it.

SPECIAL MASTER RIVERA-SOTO: You and I are entitled

to senior minds --

MR. C. PLACITELLA: Thank you. More and more --

SPECIAL MASTER RIVERA-SOTO: -- no one else in this

courtroom, but Mr. Placitella and I are.

(Laughter)

MR. C. PLACITELLA: So obviously you know how we

feel about discovery of putative class members.

In the event that the Court disagrees with me, and

I have some sense that that might be the case --

(Laughter)

-- that the issue still comes down to Rule 26 with

proportionality, and I would suggest, if that's where you

are going, the following:

That a select group of files name a select sub set

be looked at, rather than put, you know, these firms through

this kind of burden, because that will give you a view about

whether more than that will be productive.

So, you know, pick files. If there's 3,000 files,

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pick 30 random files, whatever the Court thinks is required

to satisfy your concerns and deal with the issue of

proportionality. Then give the plaintiffs' counsel the

mission of what to look for, and what I mean by that is if

the issue here is what was communicated to the plaintiffs,

what is the available evidence that was communicated, that

is a much easier burden to determine whether ten files, 20

files or 30 files have it.

You may see after 30 files, that that is just not

the kind of information that's in these files. But if they

have a specific mission directed by your Honor for what they

are looking for versus give me all the medical records --

SPECIAL MASTER RIVERA-SOTO: The specific mission

has been defined by Chief Judge Linares. He says:

Defendants will be entitled to discovery what plaintiffs and

their counsel knew and were told and whether any knowledge

or lack thereof contributed to plaintiffs' decision on

developing the underlying case --

MR. C. PLACITELLA: I agree with exactly that, so

we are on the same page.

SPECIAL MASTER RIVERA-SOTO: I might be able to put

it better, but I am not going to.

MR. C. PLACITELLA: No. I agree with exactly that,

so that does not mean that they are going to produce medical

records or old depositions that have nothing -- what we are

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talking about is what was known about Emtal talc, and if

anything, was communicated about that issue.

SPECIAL MASTER RIVERA-SOTO: Now, you are talking

relevancy.

MR. C. PLACITELLA: Well, correct, I am addressing

directly Justice -- Judge -- not Justice -- Chief Judge

Linares' argument and specific direction on scope.

So if that is the charge, and your Honor picks some

sub set of files, that would be consistent with Rule 26, and

if there is some demonstration at that point, you know, we

can revisit it. But that to me seems like it would make a

lot of sense. That is what I wrote down, should have

argument number one, and I am not saying I lost it yet, but

I am feeling not that comfortable about it.

SPECIAL MASTER RIVERA-SOTO: Neither have I.

MR. C. PLACITELLA: So that is what I wrote down,

and I appreciate the opportunity to talk about it.

Thank you.

MR. FARRELL: May I respond, your Honor?

SPECIAL MASTER RIVERA-SOTO: Mr. Farrell, of

course.

MR. FARRELL: So I will try to keep my response

brief, but there was a lot just said and frankly a lot --

SPECIAL MASTER RIVERA-SOTO: Please don't try.

Please do.

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MR. FARRELL: Let me just say I think the

overarching issue that we just saw from Mr. Placitella's

comments is that what he has in mind would entirely defeat

the purpose of a class action. The supposed deficiencies of

a class action and the way one is supposed to work, it is

something that's 180 degrees from what he seems to be

envisioning.

SPECIAL MASTER RIVERA-SOTO: Why is that?

MR. FARRELL: Because this isn't an MDL. It's not

an individual action.

He is contemplating a scenario, where individual

plaintiffs, one by one in his view, will be given individual

notice of the case. Then come forward, they'll decide

whether they want to waive their the privilege or not. They

will decide whether and how they are going to prove

causation or not.

That isn't the class action, and he has brought a

class action case. He's now offered --

SPECIAL MASTER RIVERA-SOTO: But what he just

proposed was something a little bit different than that, and

maybe you can tell us.

What I understood Mr. Placitella to be saying, and

correct me if I'm wrong, Mr. Placitella, but what I

understood him to be saying is clearly you are entitled to

discovery in respect with the named class representatives,

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so we can take those and put those to the side.

In respect of the putative class members, what he

was saying is, look, the universe of those files can be as

many as 3,000 for one lawyer. Do we really need to look at

all 3,000 files?

How about if we select a number of those files, and

we do the kind of analysis that needs to be done on them and

determine whether there is material that is discoverable,

and among that whether there is material that is privileged

and which ought to be asserted.

The one thing that I did not like as to what Mr.

Placitella said is that -- and maybe I just understood it

wrong -- but I understood it to be that someone on the

plaintiffs' side pick the files to look at. It seems to me

that for anything like that to work, it has to be entirely

random, and how the privilege questions would be handled may

very well also be applied on how the file itself is reviewed

in order to determine relevancy.

So the question then becomes to you: Do you really

need to look at all 1800 Early files -- I'm sorry -- all

3,000 Early files and all 1500 Rothenberg files, and Bevan,

I think it's just five or the other way around.

MR. FARRELL: It is four, one of whom is the class

representative, Chernick --

SPECIAL MASTER RIVERA-SOTO: Whatever it is,

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whoever has got the small number, they are going to have to

produce all of them.

MR. FARRELL: Well, I think, your Honor, that with

all due respect to Mr. Placitella, the selection of

plaintiffs that we do test cases has already occurred in

this case. It already occurred because Mr. Placitella went

to Mr. Bevan and went to Mr. Early and said, I need some

class representatives, and he chose five from Ohio, and he

chose one from New York, and the selection process of Mr.

Bevan's files already occurred. Mr. Placitella already got

a pass at deciding what was relevant, what was reasonable

from those documents --

SPECIAL MASTER RIVERA-SOTO: But that is not --

that is not, I don't think that that meets what I just

described, because what I just described is whoever is a

representative plaintiff, produce it.

As to the putative class members, instead of

looking at all of them, and a number has been bandied about

that could be as many as 10,000. Instead of doing that, in

respect of the three applications that are before me for

three law firms, that instead someone look at randomly

selected sample files.

Then we can talk about that, look at those and

determine whether there is information in there that is both

relevant and to be produced, because you would have to go

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with the privilege issues, and that would determine whether

you go and look at the remainder.

For example, if you have a lawyer who has 3000

files, you say, okay, in order for this to be statistically

significant, we need to look at ten percent of the files.

That is 300 files.

And in those 300 files, you found absolutely

nothing. Do you really need to go look at the other 2700?

MR. FARRELL: I think the issue, your Honor --

SPECIAL MASTER RIVERA-SOTO: I think Mr. Assaf

wants to pull on your coat tail for a second.

(Laughter)

And, Mr. Farrell, I am not saying that is where I

am going. I am trying to explore with you how we can cut

through this --

MR. FARRELL: I think we are happy to discuss, and

frankly, that is why we invited the meet and confer to extra

law firms to try to discuss these sort of issues.

Happy to discuss a rolling sampling production.

Let's start with ten people. Let's start with 30 people.

We will do it randomly and look at the materials. As long

as it's clear we are not losing sight of the fact that there

is still individual reliance on the other elements that we

need to deal with for anyone who is going to participate in

the case. Your Honor put it as a choice to make, and I

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agree.

In our view, the price of admission for this class

action is putting individual reliance at issue and privilege

waivers, so on and so forth.

We are happy to discuss whether and to what extent

there's a way to streamline this, and if there is no

information available from the law firms, we can deal with

that in a way that we do it in a smaller sample than a

larger sample, but we need to not lose sight of the fact

that I think the individual files construct that Mr.

Placitella is advancing may not fully answer the questions

we need to answer in terms of what Mr. Bevan knew about

files and so on and so forth.

SPECIAL MASTER RIVERA-SOTO: What if Mr. Placitella

has an epiphany and decides that for class certification

purposes, he really only wants to certify the class as to

liability?

MR. FARRELL: I think that if he makes that choice,

he still needs to meet the requirements of Rule 23.

SPECIAL MASTER RIVERA-SOTO: I understand that.

But your concern, which really goes to causation,

because I gather, and maybe I am wrong, but I gather that no

one on the defendants' side is saying that the defendants

did not make the representations for that, Emtal talc, that

did in fact make the representations that the Emtal talc did

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not contain asbestos, and that as a result, cases were

either outright dismissed or settled for token amounts of

money.

The question then becomes: What is the causation

between that representation and the plaintiffs' claim to

damages.

Now, if you file a Rule 23 motion that says we only

want to certify the class as to liability, then there are a

zillion ways to skin a cat in respect to damages,

and you can have a separate damages trial, where you have

everybody walk into the courtroom, start saying what they

want to say. And if they don't, then they haven't proven

their damages.

You can have a claims proceeding, which frankly is

a personal favorite of mine, because it is a clean way to

handle differing damages of claims of respective plaintiffs

who may have commonality of issues.

Those are all things that can come later. But for

today's purposes, what is wrong with doing in respect of the

putative class members, doing some statistically significant

discovery that does not mean a hundred percent?

MR. FARRELL: Well, we are happy to discuss the

statistically significant sampling from the law firms, but I

think that is a different issue than what your Honor was

just raising on a liability class versus causation.

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Causation is liability. There is no liability

without causation. There's no liability in this case simply

for saying X. It's saying X and causing something to occur

because of that, and that is frankly the focus of Chief

Judge Linares' opinion and what discovery needs to focus on

is that connection.

That is the reason we need discovery from the

plaintiffs and from the plaintiffs' law firms is the

causation question, because I think just to pick up on what

Mr. Placitella was saying about the supposed admissions of

defense counsel, first of all, the letter that he showed

your Honor with respect to the Rothenberg firm, the Reister

letter you saw this morning, talks about 300 Pennsylvania

cases, when the Rothenberg says there are 1800. The letter

doesn't even get to the numbers that the plaintiffs are

talking about.

So let's assume even that the letter is correct,

that the defense lawyer has said, these cases were dismissed

because of X. That would be akin to me offering to settle

this case with Mr. Placitella --

SPECIAL MASTER RIVERA-SOTO: Let me help you on

that.

The November 12th, 2008 letter is not carrying a

lot of weight for me.

MR. FARRELL: So it leaves then the question, your

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Honor, of how we get to the issue of causation. Whether you

call it reliance, relying on an evidential record that was

incomplete, at the end of the day, I think your Honor's --

one of the first things you said this morning was every tort

has causation as an element, and you will never prove

liability in a case without proving causation.

Everything you have heard from Mr. Placitella this

morning is frankly a very creative way of trying to avoid

that issue, to avoid what Judge Linares has already ruled,

and to avoid the critical issue in this case, which is that

the question of causation can really only be answered from

the plaintiffs' side of these equations because only the

plaintiffs and their lawyers know what they believed about

their cases, whether they were meritorious cases or not

meritorious cases, whether they actually intended to take

them to trial, whether dismissing the case wasn't a big deal

to them, because they didn't really have an injury in the

first place.

And that's an issue we haven't gotten into yet,

your Honor, and something we will need to account for in

this statistically significant sample size if that is the

road we go down, which is to say that plaintiffs' counsel

has selected five cancer patients -- plaintiffs from the

Bavan firm, but 90 percent of this class didn't have cancer

when they filed their cases.

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They were the plaintiffs who simply had a chest

x-ray and claimed they had a -- and were basically just

filing mass actions for a period of 25 years, and this is

why we have asked for things like medical records and so on

and so forth, because even in addition to the question of

causation, I think it's going to be a real issue for the

people who frankly didn't have a legitimate basis for their

injury and for their claim. You have the question of

whether or not this really is one class. Are the people who

had mesothelioma truly representative of the people who did

not.

Are there common questions between the people who

had mesothelioma and who did not?

The people in Ohio versus other states and the

other points that Mr. Assaf was making this morning.

So I think those two things are the things we need

to be focusing on. Whether we're doing this as a rolling

production, a sample production, so on and so forth, I'm

happy to discuss all of that this afternoon when we talk

about the discovery plan, but it needs to be something that

is shooting at the thing that everybody here needs to be

shooting at, which is proving causation and figuring out

whether there is actually a certifiable claim here, which in

our view, there is not.

SPECIAL MASTER RIVERA-SOTO: Do you have anything

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different to argue in respect to Early and Rothenberg?

MR. FARRELL: Only to say that I think that the

burden claims there are even weaker than they are for the

Bevan firm, the number of plaintiffs are smaller.

I do think it is noteworthy that the Early firm

made the identical burden claim, even though they have only

four files, and one of whom is a class representative, who,

of course, has an obligation to produce the documents in her

possession, custody and control, so I think it illustrates

the conclusory nature of the burden objections. But beyond

that, no, your Hoor.

SPECIAL MASTER RIVERA-SOTO: Mr. Little, do you

have something else you want to add?

MR. LITTLE: I don't have anything else to add.

SPECIAL MASTER RIVERA-SOTO: Okay.

Mr. Placitella, anything else?

MR. C. PLACITELLA: I think -- well, I don't know

when you want to hear from Mr. Rothenberg --

SPECIAL MASTER RIVERA-SOTO: We're going to get to

them in a moment.

MR. C. PLACITELLA: So --

SPECIAL MASTER RIVERA-SOTO: I'm sorry, Mr. Sokolove.

MR. C. PLACITELLA: It's the same for all three.

SPECIAL MASTER RIVERA-SOTO: Okay. That is a good

argument. Stop.

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(Laughter)

MR. C. PLACITELLA: They are not asking for in

their subpoenas, give me the communications between Mr.

Rothenberg or Mr. Bevan and the client about this issue.

It's --

SPECIAL MASTER RIVERA-SOTO: Give me the entire

file.

MR. C. PLACITELLA: -- give me the entire file.

Give me everything, even though Judge Linares was extremely

clear that that is not what this case is about, that the

scope is limited to that issue, so -- and that also goes

to --

SPECIAL MASTER RIVERA-SOTO: Well, but normal

discovery would involve discovery as to whether a plaintiff

has damages that are causally related to the breach of the

duty, and here the claim is that the breach of the duty was

the failure to provide information, and in fact, make an

affirmative misrepresentation concerning the information.

You still have to connect those dots.

MR. C. PLACITELLA: Absolutely. I am not fighting

that. What I'm saying is --

SPECIAL MASTER RIVERA-SOTO: That is important

because if the claim is, I lied to you about the content of

asbestos in my talc, but you don't have asbestosis --

MR. C. PLACITELLA: See, now we're going to a

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different place. That is specifically what the Third

Circuit and Judge Linares said we can't do. All right?

There was a well-pled complaint by these people.

It was never dismissed on motion. Whether or not somebody

has asbestosis, that can't be litigated here. They

forfeited that when they had these cases dismissed

fraudulently. Whether or not someone had -- if there is an

allegation --

SPECIAL MASTER RIVERA-SOTO: If your argument is

forfeiture, I have to tell you very candidly, I don't think

that argument is --

MR. C. PLACITELLA: It's not forfeiture, your

Honor. It is that the merits of the underlying claims are

not at issue here. The Third Circuit has said that, and

Judge Linares has said that two different times.

So whether or not somebody actually had -- they

filed a complaint on a good faith basis saying they had

asbestosis, they had whatever their expert -- it is not a

battle of the experts here about whether the person had

asbestosis. That ship has sailed, right?

The issue -- they have -- excuse me -- they have

the information already about what injury was claimed and

what their position was on that.

This is not, and I will get my book, if I need to,

to cite chapter and verse, but according to Judge Linares on

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multiple occasions and the Third Circuit, this is net a redo

of the underlying case. We are not here to litigate whether

the person had asbestosis or not.

They made that allegation, and the case was

dismissed. That is not something that would be tried here,

because Rooker-Feldman told us we can't do that, and if we

can't go in and say, pay this person because they had

mesothelioma, and this is everything that they've gone

through, and this is all the bad things in the underlying

case, we can't litigate that defense now, so there is a

common harm.

SPECIAL MASTER RIVERA-SOTO: I understand that, but

how are you going to prove your damages?

MR. C. PLACITELLA: The common harm here --

SPECIAL MASTER RIVERA-SOTO: I'm not asking you

about common harm.

How are you going to prove your damages?

MR. C. PLACITELLA: Well, there are, I believe,

classwide damages, and I believe there are individual

damages.

SPECIAL MASTER RIVERA-SOTO: Let's start with an

individual. Let's start with one of the named

representative plaintiffs, Ms. Williams.

MR. C. PLACITELLA: Right.

SPECIAL MASTER RIVERA-SOTO: How are you going to

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prove her damages?

MR. C. PLACITELLA: There are a number of elements

of damages that I would be entitled to prove.

SPECIAL MASTER RIVERA-SOTO: Tell me.

MR. C. PLACITELLA: One, I would be entitled to

prove the money, expense and time it took to expose the

fraud and attempt to reconstruct a record that was

destroyed.

That is a damage specifically recognized by the

Third Circuit available in this case. That is a damage to

Ms. Williams to the class. That is a classwide damage.

SPECIAL MASTER RIVERA-SOTO: I asked you, please,

if you could just address the damages of Mrs. Williams.

MR. C. PLACITELLA: Well, Mrs. Williams would have

whatever extra costs and burden it would be to assemble her

claim. That would be one damage. The inability to present

her case is a damage. She was deprived --

SPECIAL MASTER RIVERA-SOTO: How are you going to

quantify that?

MR. C. PLACITELLA: -- she was deprived -- well, a

jury is going to have to answer some of these questions.

She was deprived of the information necessary to

make informed choices in her case. She was not provided the

information that would help her prove her case. That is an

element of her damage.

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She also --

SPECIAL MASTER RIVERA-SOTO: Work with me --

MR. C. PLACITELLA: -- she also --

SPECIAL MASTER RIVERA-SOTO: -- work with me on

this one.

Let us say, and this is just pure hypothetical:

Mrs. Williams' damages in the underlying case were $10,000,

and she settled her underlying case against all other

defendants for $10,000. What are her damages?

MR. C. PLACITELLA: Her damages are focused on the

case against BASF. No one has made --

SPECIAL MASTER RIVERA-SOTO: She's been made whole.

MR. C. PLACITELLA: -- well, there will never be a

determination that she has been made whole by settlements

under our law --

SPECIAL MASTER RIVERA-SOTO: What additional damage

did she incur that was not already compensated for --

MR. C. PLACITELLA: She lost -- first of all --

SPECIAL MASTER RIVERA-SOTO: -- under my

hypothetical?

MR. C. PLACITELLA: -- under your hypothetical, if

she took a hundred dollars from all the other defendants,

she is still, for whatever reasons, she didn't think her

proof was good against them. They were about to go

bankrupt. They -- they -- the product I.D. was poor --

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SPECIAL MASTER RIVERA-SOTO: You are changing my

facts. My facts are very simple.

Her recoverable damages, if all of the gods smiled

on her for $10,000, and she settled for $10,000 from all

defendants except for Engelhard --

MR. C. PLACITELLA: Well, we don't know what her

recoverable damages are because they have never been tried

to a jury, and under our law you can settle with a defendant

and still make a determination to go to trial against

another defendant, okay?

SPECIAL MASTER RIVERA-SOTO: Provided you still

have damages.

MR. C. PLACITELLA: Well, her damages are, if it

was in our underlying case, that she suffered and died from

mesothelioma that was caused by exposure to asbestos from

the products of the defendant at issue. That is her

damages.

SPECIAL MASTER RIVERA-SOTO: But we can't

relitigate that --

MR. C. PLACITELLA: We're not allowed to do that --

SPECIAL MASTER RIVERA-SOTO: Because of

Rooker-Feldman.

MR. C. PLACITELLA: That's exactly right. We can't

do that, right?

The only thing we can say is, and we can't look at

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what somebody else paid here below, because Mrs. Williams

was never given the opportunity to quantify those damages.

So it is irrelevant what she got from another

defendant, because she had the right below, which was taken

from her to decide whether or not she was going to try her

case again Engelhard because --

SPECIAL MASTER RIVERA-SOTO: I am not sure I

understand that.

Let me give you a different sort of a set of facts.

Let us assume that Mrs. Williams had $10,000 worth of

damages, and she settles against all of the other

defendants, other than Engelhard for $15,000.

Does she still have a cause of action against

Engelhard?

MR. C. PLACITELLA: Yes, because under our law, if

I am trying that case below, let's just talk about the case

below, I can still try that case because under New Jersey

law, I get the benefit of the bargain when I am making a

settlement.

If I make a bad settlement, and the defendant is

apportioned a certain percentage, then that's on me.

If I make a good settlement, I get the benefit of

that, and Mrs. Williams has the right --

SPECIAL MASTER RIVERA-SOTO: So you can get double

recovery?

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MR. C. PLACITELLA: It is not a double recovery.

The law says I can settle with everybody, and I can still go

to trial against Engelhard and ask a jury for a

determination on what is the value of loss of services, my

pain and suffering, my economic losses --

SPECIAL MASTER RIVERA-SOTO: See, you're not

changing my hypothetical.

My hypothetical is her provable damages are

$10,000 --

MR. C. PLACITELLA: Her provable damages are only a

function of what a jury would say they are, your Honor.

It is not what somebody else said --

SPECIAL MASTER RIVERA-SOTO: She is going to have

to say at some point or another, okay, at least in New

Jersey, she is going to have to say these are my damages,

because I will tell you right now, even if you plead

unliquidated damages in your complaint, Rule 4:5-2, as a

provision for a written request for the amount of damages

claimed that the plaintiff must respond to within five days.

So at some point or another, a number is going to

have to be attached to her damages.

My hypothetical to you is: Assume that she had

recoverable damages from across the board, $10,0000. She

settles for $15,000 from all other defendants except from

Engelhard. Does she still have a cause of action against

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Engelhard?

MR. C. PLACITELLA: Absolutely. Absolutely.

Because she had the right to bring that case, and she had

the right to go to a jury and say it was --

SPECIAL MASTER RIVERA-SOTO: What are her damages

against Engelhard?

MR. C. PLACITELLA: Her damages against

Engelhard --

SPECIAL MASTER RIVERA-SOTO: She recovered $15,000

from a ten-thousand-dollar case. What are her damages?

MR. C. PLACITELLA: Who made the determination it

was a ten-thousand-dollar case?

SPECIAL MASTER RIVERA-SOTO: That's all she can

prove. She can prove $10,000.

MR. C. PLACITELLA: To who?

SPECIAL MASTER RIVERA-SOTO: To anybody.

MR. C. PLACITELLA: But she was never given that

right. It was taken from her.

SPECIAL MASTER RIVERA-SOTO: Well, let's --

MR. C. PLACITELLA: So let's have her come in this

courtroom --

SPECIAL MASTER RIVERA-SOTO: -- I will make it

easier.

Somebody issued a Rule 4:5-2 written request, and

she puts in there that her damages are $10,000, her

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admission.

She then settles for fifteen.

What damages does she have against a non settling

defendant?

MR. C. PLACITELLA: She has the damages. She has a

right unless there is an enforcement, she has a right to go

to trial against that defendant.

SPECIAL MASTER RIVERA-SOTO: To prove what damages?

MR. C. PLACITELLA: To prove her pain and

suffering, loss of services, all of the things that she

would be entitled to --

SPECIAL MASTER RIVERA-SOTO: We are going around

and around.

MR. C. PLACITELLA: -- under New Jersey -- yeah.

We definitely have a disconnect.

The issue here is that was taken from her, that

choice was taken from her.

She has a right, if I read your Honor's opinions,

if I read Judge Linares' opinions, if I read the Third

Circuit's opinions, she has a right to be made whole.

Part of being made whole is to be able to bring the

case that she was derived of, and she is entitled, and a

jury is entitled to hear what that is, and we will prove

that at the time of trial.

She is not limited upfront. I've never seen a tort

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case that I tried in, I won't go to 40 years yet, but I am

pushing it --

SPECIAL MASTER RIVERA-SOTO: Now you are making me

feel old.

(Laughter)

MR. C. PLACITELLA: -- I've never seen a tort case,

where I walked into the courtroom and been limited by a

piece of paper that was filed early in a case.

That has never happened. It's never happened, and

there has to be, if it was an underlying case apportionment

because if she settled, let's say she settled for $15,000,

the jury determined she was entitled to ten. She settled

with everybody else for $15,0000. There was no

apportionment to liability other than the defendant at trial

for the 10,000. She gets the 10,000 from that defendant at

trial.

The fact that she settled for 15,000 is of no

moment in terms of what she is allowed to take home.

SPECIAL MASTER RIVERA-SOTO: Is there anything else

that you would like to add in respect to the third-party

witnesses and subpoenas duces tecum?

THE REPORTER: Judge, can we take a short break?

SPECIAL MASTER RIVERA-SOTO: Yes. Please let me

know.

We are going to take a short break, because the

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court reporter needs it.

MR. C. PLACITELLA: Thank you.

(Recess taken)

SPECIAL MASTER RIVERA-SOTO: Mr. Assaf, did you

lose your opponents?

MR. ASSAF: They are coming, your Honor.

SPECIAL MASTER RIVERA-SOTO: We are back on the

record.

Before you come up, Mr. Sokolove, is there anything

else that you wanted to say, Mr. Farrell?

MR. FARRELL: Yes, your Honor, very briefly.

SPECIAL MASTER RIVERA-SOTO: You now only have two

cards instead of the three that you had before.

MR. FARRELL: We are making progress, fewer cards.

A few points just in response to what Mr.

Placitella just said.

First, the answer to your Honor's question, the

hypothetical, $10,000 in damages, the answer is zero. The

plaintiff would have zero damages.

Two: We are not trying to prove different facts in

the historical cases, but we are entitled to know what the

relevant facts of those cases are, and there are at least

two reasons we need to know that.

First: What the plaintiffs and the lawyers

believed about their claims is obviously relevant and was

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addressed by Chief Judge Linares. If the plaintiffs

believed they did not actually have an injury, if the

plaintiffs believed they were not in fact exposed to

Emtal talc, if they believed their case was going to be

dismissed for lack of product identification, statute of

limitations, so on and so forth, that is clearly relevant to

whether there is a causal connection between statements by

the defendants and why the case was dismissed or settled.

Beyond that, it is also frankly just relevant

whether these plaintiffs have an actual connection to

Engelhard.

Was there product I.D.?

Did they actually have an injury?

What injury did they have?

Many of these cases, as I am sure your Honor has

seen in our papers, have been determined to have been

fraudulent the first time around. How can that not be

relevant for the reasons why a case was or was not

dismissed, settled and so on and so forth?

The last point I wanted to make is when your Honor

started to push Mr. Placitella about, well, how are you

going to prove your damages here, he kept trying to go this

way and that way, but ultimately ended up exactly where we

all knew he was going to end up, which is that he wants to

stand up in front of a jury and say plaintiff X had

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mesothelioma, and she suffered and died and she is entitled

to substantial damages.

But even though that is what he would say to the

jury, he wants to prevent the defendants from taking any

discovery as to whether she actually had mesothelioma,

whether she was actually exposed to Emtal talc, whether

there was a connection between statements the defendants

made, and why the case was dismissed, so on and so forth.

He can't have it both ways on the issue. If that

is where we are heading with damages, then we are entitled

to take discovery on those issues, on the damages question,

and then independently because of the causation issues we

have already talked about.

Thank you, your HOnor.

SPECIAL MASTER RIVERA-SOTO: Thank you.

Mr. Sokolove, are you speaking in lieu of Ms.

Kizis?

MR. SOKOLOVE: Yes, your Honor.

SPECIAL MASTER RIVERA-SOTO: Did I pronounce that

correctly?

MS. KIZIS: You did, your Honor.

Lynne Kizis, local counsel for Mr. Sokolove.

SPECIAL MASTER RIVERA-SOTO: Thank you, Ms. Kizis.

Have you been admitted pro hac vice?

MR. SOKOLOVE: Yes, your Honor.

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THE REPORTER: Can you just spell your last name?

MR. SOKOLOVE: S-o-k-o-l-o-v-e, and I am not

related to the guy on TV.

SPECIAL MASTER RIVERA-SOTO: Well, now that we have

cleared that up.

(Laughter)

MR. SOKOLOVE: At the risk of bringing this back to

the mundane, I am here just to talk about Mr. Rothenberg and

his firm. I think that's --

SPECIAL MASTER RIVERA-SOTO: I just walked past his

building on Monday.

MR. SOKOLOVE: Oh, the other day?

SPECIAL MASTER RIVERA-SOTO: Yes, and I hear his

advertisements on KYW.

MR. SOKOLOVE: No, that's not him.

SPECIAL MASTER RIVERA-SOTO: Is that a different

Rothenberg?

MR. SOKOLOVE: Yes, it is.

I think you are hearing Mr. Rothman.

SPECIAL MASTER RIVERA-SOTO: No, Rothenberg.

MR. SOKOLOVE: Not his.

In any event, your Honor, he is -- at this point

he's a 78-year-old man. He was in his prime back 25 years

ago when these cases were there. I want to try to bring --

SPECIAL MASTER RIVERA-SOTO: Does that mean that I

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am no longer in my prime?

(Laughter)

MR. SOKOLOVE: I don't think you are that old, your

Honor, and he didn't include me on the list of older guys,

and he should have.

(Laughter)

You know, I want to talk for a minute about some

real people, and I am going to quote three people, twice,

your Honor, and once Mr. Farrell.

I heard the words "decision in a vacuum, normal

discovery consideration and price of admission." I would

like to address them for a minute.

First of all, this is not normal discovery. This

is abnormal discovery. This is discovery of a law firm

about a case that today this law firm is not involved with.

They are the absent whatever we want to call them.

In fact, I would go so far as to say that, you

know, 25 years ago we were probably dealing with mostly

middle-aged men, most of whom are dead by now whether by

asbestosis or natural causes. We have no idea, none of us

in this courtroom, we have no idea whether their heirs,

which heir, some who might not be alive either by the way,

we have no idea which one, if any of them, would choose to

go forward with this case or not. But some of them perhaps

don't want Dad's files to be out there exposed, don't want

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the medical records of Dad or Mom to be exposed, but we just

don't know.

We have no idea about what the view of the heirs

probably of Dad or Mom are.

SPECIAL MASTER RIVERA-SOTO: Well, wouldn't we get

the opportunity to hear that once --

MR. SOKOLOVE: Well, not if one's -- oh, I' sorry.

SPECIAL MASTER RIVERA-SOTO: -- once if a class

does get in fact certified and they get notice?

MR. SOKOLOVE: Well, yes, except the discovery

proceeding, the files that we are asking to open are right

now and --

SPECIAL MASTER RIVERA-SOTO: But how is that not --

MR. SOKOLOVE: -- well, because they have

legitimate privacy rights. They have lawyer-client --

SPECIAL MASTER RIVERA-SOTO: Well, privacy rights

are the decedent's, and the decedent is dead, and so you

don't have privacy rights after you are dead.

MR. SOKOLOVE: I am not sure, your Honor, under any

number of statutes or court cases that an heir would not

have the right to say, "I don't want Mom's or Dad's medical

records to go out there in the public domain."

I don't think --

SPECIAL MASTER RIVERA-SOTO: They are not going

into the public domain.

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They are being handled by reputable lawyers and

reputable law firms pursuant to a discovery

confidentiality --

MR. SOKOLOVE: That may be --

SPECIAL MASTER RIVERA-SOTO: -- that has sanctions

attached to it --

MR. SOKOLOVE: -- that I understand, your Honor,

but nonetheless, they do have -- there are privileges here,

and the point of this, what I want to get to here, but I

think the most important thing here is that it is not normal

discovery, first of all.

So what we are really talking about is in this

particular case, I mean, it has not been a motion to enforce

that I know of with respect to Rothman -- Rothenberg even

though we are here talking about this --

SPECIAL MASTER RIVERA-SOTO: Well, Rothenberg filed

a motion to quash.

MR. SOKOLOVE: He did, and Judge Linares

specifically said: Effectively we are going to hold the

issue in abeyance.

I asked His Honor in open court, I said I want to

understand your ruling. Does this mean we are required to

turn over?

And his specific response on the record here was,

no, no, no. Right now, you know, things are going to stay

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status quo, and I was very happy --

SPECIAL MASTER RIVERA-SOTO: I am changing the

status quo --

MR. SOKOLOVE: -- well, I understand. So now let's

talk about where we are. It is not normal discovery.

When your Honor raised the question or made the

comment about, you know, it is not normal for decisions to

be undertaken in a vacuum, I couldn't agree more.

On the other hand -- not on the other hand --

SPECIAL MASTER RIVERA-SOTO: On the same hand.

MR. SOKOLOVE: -- I was saying that being

consistent with that, you know, your Honor, to put down an

amount of money it would cost, just think about what this

means.

First of all, Mr. Rothenberg has to go find the

files. They are in storage somewhere, not that big a cost.

He is responsible for keeping his files not for 25 years,

but keeping his files, fine.

He gets them. The cost of having to go out to each

and every one of these individual heirs, first, you have to

figure out who the heirs are. You have to probably do a

tremendous amount of search work, and then what happens when

the sister and the brother disagree?

One says: Sure, turn the files over.

The other one says: I am going to get a lawyer. I

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don't want the files turned over.

We don't even know who represents this file at this

point because they are not Rothenberg's clients any more,

but he is in physical possession of somebody else's private

material, so that is bad enough.

But when we get to the question of quantifying how

much it would cost, I can't imagine that one at this point

could put a real number in an affidavit that is an honest

number as to how much it would cost per file to reach the

heirs or the heirs of heirs who maybe are in different

states at this point. How could one quantify that number

except for to say, as we did in our papers, it is going to

be damn expensive?

SPECIAL MASTER RIVERA-SOTO: Well, but why not, why

not take one, and go through the process in respect to that

one file and then say, look, I did one. This is how much it

costs. And if I have 3000 files or 1800 files in the case

of your client, multiply that by 1800, and I am looking at a

motion to quash that was filed in January. It is now

October. There was a lot of time between then and now to at

least try to provide some kind of factual basis on which to

decide.

MR. SOKOLOVE: Your Honor, I don't disagree there

has been a passage of time.

I believe that our client understood. I certainly

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understood that at this juncture, since there wasn't an

outstanding motion with respect to Rothenberg to produce

those files now. I thought we were kind of in this

in-between stage, where when the issues involving the

questions of privilege and the other items came to pass, and

we had a better view of what the potential size and scope

and nature of the type of material.

So, for example, I wouldn't know on behalf of Mr.

Rothenberg today, I wouldn't know for certain and certainly

until this hearing is over today, I wouldn't even know what

information specifically is being requested or required to

be pulled from a file to then go to the heir of Mr. Smith

and say, this is what we are looking to pull out, and now

that we found you, how do you feel about it, are we going to

be able to produce it or not.

There is a cost involved with each and every

individual, and I can't imagine what that would be as a

whole, so we weren't about to go on that kind of a search in

a vacuum.

SPECIAL MASTER RIVERA-SOTO: Mr. Sokolove, help me

out here.

MR. SOKOLOVE: Yes, sir.

SPECIAL MASTER RIVERA-SOTO: Okay. There is a

subpoena duces tecum that was served on your client. Your

client filed a motion to quash.

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I think I have made it abundantly clear that my job

is very simply summarized as getting this case moving.

This case is six years old, and we are talking about

discovery.

It boggles the mind. But be that as it may, that's

where we are, and my charter from Chief Judge Linares and

Magistrate Judge Dickson is get the case trial ready, so

that is my prime directive.

MR. SOKOLOVE: So may I make a suggestion?

SPECIAL MASTER RIVERA-SOTO: How do I address your

motion?

MR. SOKOLOVE: So let me take one other quote and

work around it from there.

Mr. Farrell made reference to the price of

admission. It is an interesting term. It's certainly a

term perhaps with respect to the parties and the attorneys

who were involved in this case.

Mr. Rothenberg and his client are neither, and to

conflate the price of admission with a non party's clients,

it is just simply wrong.

SPECIAL MASTER RIVERA-SOTO: See, I don't agree

with you on that, because I start from a far more mental

process, and that is: I was taught in law school back when

they said these things, that everyone owes his testimony to

the sovereign.

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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You may remember that.

MR. SOKOLOVE: I do.

SPECIAL MASTER RIVERA-SOTO: Isn't this testimony

that is owed to the sovereign?

MR. SOKOLOVE: Perhaps, but the question of price

of admission was not resolved anywhere in any of that

context, because unfortunately sometimes when you have to

come before the sovereign, there is a price of admission,

and very often somebody has to pay it.

But here is the problem, your Honor. My client at

least at this point, Mr. Rothenberg and his firm, let alone

the associate who used to work with him 15 years ago, who

has been the individual subpoenaed to come testify, okay,

they have not asked for admission, and they aren't --

SPECIAL MASTER RIVERA-SOTO: But they owe their

testimony.

MR. SOKOLOVE: Perhaps.

SPECIAL MASTER RIVERA-SOTO: No perhaps. They owe

their testimony.

MR. SOKOLOVE: No. What I mean is, yes, under

certain circumstances. But if there is a price of admission

to help the sovereign, the question is: What is fair and

who should pay for it.

I think in this set of circumstances --

SPECIAL MASTER RIVERA-SOTO: Isn't that something

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we should determine after the fact?

MR. SOKOLOVE: Well, except for if it is going to

bankrupt a law firm before the fact, your Honor, I don't

think that is fair, and we're --

SPECIAL MASTER RIVERA-SOTO: Do you really think

this will bankrupt the law firm?

MR. SOKOLOVE: Well, your Honor, it could cost

perhaps thousands of dollars per file just to find the

heirs, and then what happens if the heirs then go get an

attorney and say, "You are not authorized, Mr. Rothenberg,

to release this" and if some --

SPECIAL MASTER RIVERA-SOTO: Then they may hear

from me saying, then you have a choice.

MR. SOKOLOVE: Yeah. The problem is they may get a

judge in Ohio who makes that ruling --

SPECIAL MASTER RIVERA-SOTO: We don't want judges

in Ohio making rulings, do we?

MR. SOKOLOVE: Right.

But if that is what where they live or perhaps they

live in California or perhaps they live somewhere else

because they are the heirs.

What I am trying to say to your Honor is it is a

quagmire that we don't know the answers to at this point, so

therefore, we can't put a price tag on it right now as much

as we would like to.

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I would love to be able to come to your Honor and

say, here is what it is going to cost. They ought to pay

for it.

I would love that. I think that would move things

quicker and probably get us to the bottom line real quickly

as to how many files they want --

SPECIAL MASTER RIVERA-SOTO: It would be where the

rubber meets the road.

MR. SOKOLOVE: I think so.

So here is a suggestion I have for your Honor,

two-fold.

One: Allow us the opportunity to go back and try

to give you some more of this information now that it

appears to be what your Honor believes is ripe.

Second of all: I do subscribe to the concept of

just taking some basic representatives statistically

significant files. I do not know enough about this case,

nor does Mr. Rothenberg at this point, to know for certain

what will happen relative to your Honor's ruling, to Chief

Justice Linares' ruling as to what has to be provable or not

given the underlying case.

But I think it is pretty clear that at this point,

that at least a representative or a statistically correct

significant, whatever you want to call it, sub set of files

is probably the way to go for everybody. Otherwise, we got

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third parties out here, your Honor, just putting aside the

burden, there are real serious real live people who I think

their lives are going to be further burdened.

They already lost mom or dad once, but now we are

going to put them through the burden of having to give up

their files without having any say whatsoever, and I think

that is unfortunate.

SPECIAL MASTER RIVERA-SOTO: I agree with you. I

think it is unfortunate if they choose not to press the

claim.

MR. SOKOLOVE: Well, we're talking about now --

SPECIAL MASTER RIVERA-SOTO: But right now they

are --

MR. SOKOLOVE: -- no, none of my clients --

SPECIAL MASTER RIVERA-SOTO: -- you have got a

representative claimant who claims that they represent a

class.

MR. SOKOLOVE: The representative, that is their

position.

SPECIAL MASTER RIVERA-SOTO: They claim they

represent a class, which would include the 1800 people that

Mr. Rothenberg would represent. That is what they claim.

If they want to say, no, we do not want to be part

of that class action, then fine.

MR. SOKOLOVE: Your Honor, they are not required to

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make that determination right now --

SPECIAL MASTER RIVERA-SOTO: Not now, but they will

be once we get a motion for certification.

(Laughter)

MR. SOKOLOVE: But until we are there, your Honor,

they are being asked to turn over -- more importantly, Mr.

Rothenberg, who has no dog in this fight yet, except for me

standing here, is being asked to potentially put out huge

amounts of dollars for something that he knows nothing about

in terms of his clients' interest.

For that, your Honor, I am simply appealing. Let's

consider the difference between the named plaintiffs, the

other folks out there who will be the heirs and the heirs of

the other folks and a small law firm that right now does not

have a dog in this fight, except for what is going on right

here.

Thank you very much.

SPECIAL MASTER RIVERA-SOTO: Thank you.

MR. C. PLACITELLA: Am I allowed to talk about

Rothenberg?

I wasn't allowed to say the word before --

SPECIAL MASTER RIVERA-SOTO: You can talk about

Rothenberg, yes. I was wondering whether you were standing

up for a sur-reply.

MR. C. PLACITELLA: No.

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So when Rothenberg says 1800 clients, there is

things we don't know.

We don't know if those 1800 are amongst another

3,000 clients who have nothing to do with this. I am not

sure all 1800 -- I mean, we don't know. There is a first

segregation process here, which is significant --

SPECIAL MASTER RIVERA-SOTO: But isn't that why the

good Lord created discovery?

MR. C. PLACITELLA: Yes, your Honor.

SPECIAL MASTER RIVERA-SOTO: Okay.

And isn't that what the subpoenas seek?

MR. C. PLACITELLA: That is why we are talking

about, if you are going to do this, doing it on a

statistical sampling to see what we are --

SPECIAL MASTER RIVERA-SOTO: That was just a

suggestion that I made. It seems to be gathering some

currency, depending on which way the people think the wind

is blowing.

(Laughter)

MR. C. PLACITELLA: Well, no, I actually, if you

remember, I was the one who -- well, I guess I felt the wind

and brought up my piece of paper, so I guess that's somewhat

accurate.

But in terms of Mr. Rothenberg, his -- the

discovery of him and others like him really should wait

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until the issue of certification is decided. I mean, that

is the logical way to do this. And maybe I have to come

around to the fact that certification will have to be dealt

with sooner rather than later.

Once we get our basic information, and then you can

revisit, you know, what the scope of discovery would be as

to those people.

SPECIAL MASTER RIVERA-SOTO: To be very candid with

you, Mr. Placitella, I would be far more inclined to go that

way if we had a motion on the docket, a motion for a class

cert on the docket, because that would inform everybody as

to what the boundaries of the inquiries are supposed to

be --

MR. C. PLACITELLA: Right, and maybe --

SPECIAL MASTER RIVERA-SOTO: -- but the problem, I

will tell you very candidly is, given the breadth of the

class definition in the complaint, and again, it is the way

you have to do it, so I am not arguing with you about it,

but given its breadth, you are putting everything in the

world at issue.

But I think it might be time or actually we may be

past the time that you should be coming forward and saying,

this is what we are looking for in the way of class cert,

which will define the boundaries of what is relevant

discovery, and within that what is proportional and what is

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not --

MR. C. PLACITELLA: Right, I agree.

SPECIAL MASTER RIVERA-SOTO: -- and that's really

where we are going --

MR. C. PLACITELLA: I understand that perspective.

But keep in mind, although the history has been slow, here

is the history.

Up until Judge Linares ruled on the scope, we had a

different perspective on what we were required to prove even

to get to class certification.

SPECIAL MASTER RIVERA-SOTO: But that was August.

That was two months ago, actually almost three months ago.

MR. C. PLACITELLA: But we have been here, and we

went through the issue of, you know, other issues that got

us here.

So before that, it was an open issue. Whether I

agree with his decision or not, and I have seen some of the

wisdom in it and really focusing here, but whether I agree

with his decision or not --

SPECIAL MASTER RIVERA-SOTO: Focus on it some more

and see all of the wisdom in it.

(Laughter)

MR. C. PLACITELLA: Right.

Whether I agree with it or not, he has more

accurately defined what the class could be, so regardless of

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what --

SPECIAL MASTER RIVERA-SOTO: He helped you out.

MR. C. PLACITELLA: -- right -- so regardless of

what is in the original pleading, he has brought some focus

to this case.

So I think the class discovery can be limited and

limited in time, and I probably will get shot from my

co-counsel, but we are probably at a point, where we have to

sit down and really get to that. It really does not seem

fair to third parties, who are kind of waiting for us to get

there, to open up their files and stop their law firms, if

we can get there.

So what is past is prologue, but I would suggest

that that is a conversation that maybe we will have over

lunch, maybe we need another session on, but before you get

to the issue of this broad third-party discovery, in light

of what Judge Linares' -- only recent in the history of this

case, two months is not long, given everything that

happened, he has focused on what we can prove and not prove.

He has told us what is in the case and what is not in the

case, and you have I think, although not have ruled, have

sent some fairly clear signals about where you think this is

going.

So with that said, I think the parties should have

the opportunity to think about what you said, take a lesson

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from what you said about where you are going and come back

to you with a proposal before we would burden these third

parties. And, you know, it is not going to stop there.

They already put in one of their papers, and when we are

done with them, we are going here. When we are done with

them, we're going there, and maybe that doesn't have to be

ever the case.

So I am listening to you, and I'm trying to absorb

some of your wisdom, and I would say give us the

opportunity --

SPECIAL MASTER RIVERA-SOTO: If you expect wisdom,

you are setting the bar way too high.

(Laughter)

MR. C. PLACITELLA: Well, no.

The Third Circuit said actually that BASF was

setting the bar way too high when they said we have to prove

the elements of our underlying claim.

But I would ask that we look at it through that

lens, figure out what we need for class certification

discovery. If that means they need some very limited focus

on third parties, because they feel like they want to be

heard, I understand that is your perspective, but before

people start opening up all kinds of files, and we start

going to all of these other places, it makes a lot of sense

to drill down and figure out what we are doing and where we

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are going.

Thank you.

SPECIAL MASTER RIVERA-SOTO: Thank you.

Is there anyone here who has a scheduling conflict

that they are concerned about?

MR. TUNIS: I have one at 6:30.

SPECIAL MASTER RIVERA-SOTO: 6:30, where?

MR. TUNIS: In Long Hills -- Long Valley, excuse

me.

SPECIAL MASTER RIVERA-SOTO: Long Valley.

MR. TUNIS: If I have to make phone calls, I will

do what I can.

SPECIAL MASTER RIVERA-SOTO: What I told Mr. Assaf

before we took the break was that we would finish this set

of motions, grab some lunch, which I understand is here, and

then we would go back.

What I want you folks to think about while you are

taking lunch is can we shorten the arguments, please. We

have six more motions to address, some of which really ought

to go very quickly, so I'm going to rule on the Bevan, Early

and Rothenberg motions when you come back from lunch.

Do you have something else you want to say now, Mr.

Farrell?

MR. FARRELL: Just very briefly.

SPECIAL MASTER RIVERA-SOTO: Now you only have one

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card.

MR. FARRELL: More progress, your Honor.

I think this is very brief because it sounds like

Mr. Placitella has come around to some of the points that we

have been making on class motions, so on and so forth.

The two things I wanted to say is my comment about

the price of admission was not referenced to economic or

financial cost. It was: Are you in this class or are you

not in this class.

Are the Rothenberg plaintiffs in or not?

If they are in, their knowledge and their lawyers'

knowledge is clearly discoverable and at issue.

If they are out, maybe we have a different

conversation. That's why we need the class motion.

Point two I wanted to make --

SPECIAL MASTER RIVERA-SOTO: I think everybody got

that.

MR. FARRELL: -- point two I wanted to make is

whether or not there is some discussion as to Mr.

Rothenberg. I think there is no doubt that the Bevan firm

and Early firm clients are in this case, you know, unless

Mr. Placitella tells me I am wrong about that, and so there

is a basis for any delay of their response to the subpoenas

because they are going to be in the class one way or the

other.

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SPECIAL MASTER RIVERA-SOTO: Well, all of the Early

clients are named as class representatives --

MR. FARRELL: One of the four.

SPECIAL MASTER RIVERA-SOTO: -- one of the four and

four of the 3,000 Bevan are class representatives --

MR. FARRELL: Five.

SPECIAL MASTER RIVERA-SOTO: -- five.

I thought there was one New York?

MR. FARRELL: That is the one Early client.

SPECIAL MASTER RIVERA-SOTO: Oh, that's the one

Early client. So the remaining five of the six are all

Bevan clients?

MR. FARRELL: Correct.

SPECIAL MASTER RIVERA-SOTO: Okay. Thank you.

MR. FARRELL: Thank you, your Honor.

SPECIAL MASTER RIVERA-SOTO: Why don't you guys

have some lunch, give some thought about shortening things

up. Your lunch is here.

So can we start at two o'clock?

MR. ASSAF: Yes.

SPECIAL MASTER RIVERA-SOTO: Okay. Two o'clock it

is.

Thank you.

(Whereupon, a 15-minute luncheon recess was taken)

(Afternoon session)

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SPECIAL MASTER RIVERA-SOTO: Is everybody here?

MR. ASSAF: Yes.

SPECIAL MASTER RIVERA-SOTO: As long as they are

within hand grenade distance, we're fine.

A VOICE: Everybody is represented.

SPECIAL MASTER RIVERA-SOTO: Thank you.

Back on the record, please.

For consideration are the motions of BASF to

enforce the third-party duces tecum subpoena on Thomas Bevan

and Bevan & Associates. It has been represented that Mr.

Bevan represents or has represented 3000 or so potential

class members in this case. That is under Docket ECF Number

1 in the action that was filed in the Northern District of

Ohio, and that was later transferred to this Court.

Also under consideration is a motion of BASF to

enforce a third-party subpoena duces tecum served on Mr.

Early and his law firm. That is under ECF Number 259.

The third motion is the motion of the Rothenberg

law firm to quash the subpoena duces tecum served upon them

by BASF -- I'm sorry, I should say Mr. Early has been

represented as having four of the named plaintiffs in this

case. Mr. Rothenberg, it has been represented, has 1800 of

the putative class members in this case.

The subpoenas sought to look at the files that each

of these lawyers had with their clients, the purpose for

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which is for defendants to be able to determine what the

plaintiffs were told by whom, when and what in respect of

the Emtal talc contents of asbestos and whether that had

ultimately a determination in respect of that plaintiffs'

decision to either settle their action against Engelhard for

a small amount of money or to dismiss it outright.

The plaintiff and the three law firms have opposed

that application saying that at the very least, it is beyond

the scope of permissible discovery, and that it would impose

an undue burden on the third-party witnesses to be able to

respond.

There are valid considerations at play on both

sides, and as a result, it is my conclusion that the motions

to enforce, that would be a motion to enforce the subpoena

against the Bevan law firm and the motion to enforce the

subpoena against the Early law firm should be granted in

part. By the same token, the Rothenberg motion to quash

should be denied in part.

It is clear to me that Chief Judge Linares has

defined the scope of discovery, at least for the purposes of

what we are addressing today. In it he said in his August

3rd opinion, he said and I quote: Defendants will be

entitled to discover what plaintiffs and their counsel knew

and were told and whether any knowledge or lack thereof

contributed to plaintiffs' decisions on resolving the

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underlying case.

He further determined that, and I quote: That the

attorney-client privilege is waived when, quote, the client

has made a conscious decision to inject the advice of

counsel as an issue in the litigation, unquote, citing

Glenmede Trust Company versus Thompson.

He said, however, such information should be

tightly confined and controlled pursuant to Federal Rule of

Evidence 502(d), and he committed to me the obligation to

apply all relevant law to the documents and objections

concerning the attorney/client privilege to determine what

discovery plaintiffs shall produce.

It is my ruling that the plaintiffs shall produce

the following: The complete files in respect of each named

representative claimant. Those are to be reviewed by

plaintiffs' counsel. The privilege log is to be made as to

those items that despite the finding of waiver plaintiffs

believe are still otherwise protected, that privilege log

and copies of the documents are to be provided directly to

me, and I will make the determination as to whether the

documents are, in fact, to be privileged and are out or are

not privileged and are to be disposed. So even the

privileged documents should be Bates numbered, so we can

identify them by number.

In respect of the putative class members, there is

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much to be said for delaying discovery in respect to them

until after class certification. The motion has either been

filed or determined. But by the same token, a great deal of

time has elapsed in this case, and we need to move it

forward.

So as a middle ground, it is my conclusion that in

respect of the Bevan files and the Rothenberg files,

plaintiffs shall arbitrarily select 30 of the Bevan files

and 18 of the Rothenberg files totally arbitrarily and

conduct the same kind of analysis. That is to say,

determine what is discoverable, what is privileged, prepare

a privilege log and send the privilege log with the

privileged documents to me for review. If, in fact, that

exercise proves futile, then that will define whether

additional discovery will occur.

If, however, there are some that are there, inside

that discovery, then we are going to have to expand it, but

it is a bridge we will cross when we get to it.

The three law firms have all argued undue burden

and argued the cost. Hopefully by doing a representative

sampling in respect of those issues have been, if not

ameliorated, then totally removed. That said, the

application for costs and expenses is denied, but it is

denied without prejudice.

If at a later date anyone in those law firms feels

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that an undue burden has been placed on them, then they

should submit a motion following our local court rules,

please, supporting their application with appropriate

certifications or affidavits. It is not going to be done

solely on the representation of counsel.

As to the timing, I expect that the files

concerning the named plaintiffs will be produced within a

week's time of today. As to the representative samples from

both the Bevan law firm and the Rothenberg law firm, I

expect those to be produced within two weeks from today.

If that causes unnecessary agida, let me know, but

again, I think that should be more than enough time to get

this on the road.

Is there anything else in respect to those three

applications that I've addressed?

MR. ASSAF: Yes. The clarification on the arbitrary

selections, your Honor, it would seem that Mr. Placitella

and --

SPECIAL MASTER RIVERA-SOTO: That is Mr.

Placitella. You are the one who is going to select the

files.

MR. SOKOLOVE: That was about to be my question,

your Honor. I mean physically, we have files sitting in

storage somewhere. How --

SPECIAL MASTER RIVERA-SOTO: Mr. Placitella is

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going to go to that storage somewhere and arbitrarily pull

out as to Mr. Rothenberg 18 files, totally arbitrary. I

don't want you to look at the files before that.

Arbitrarily stick your hand in the box and pull out a file.

MR. C. PLACITELLA: So is it unbecoming of me to

ask for a couple extra weeks to do that, because I have to

go to Ohio, and there are things -- can I have 30 days to

get that done?

SPECIAL MASTER RIVERA-SOTO: You can have 30 days.

MR. C. PLACITELLA: Thank you.

SPECIAL MASTER RIVERA-SOTO: Mr. Little?

MR. LITTLE: With regard to the Early files, there

is one who is a named plaintiff, and there is four

additional in the class. Are we just are requiring the

production of those --

SPECIAL MASTER RIVERA-SOTO: No, all five.

MR. LITTLE: All five.

SPECIAL MASTER RIVERA-SOTO: All five.

Is that correct, there is one who is a named a

plaintiff and four additional attorneys?

MR. COREN: I am just working off of my head, but I

think there is four.

SPECIAL MASTER RIVERA-SOTO: I thought there were

four altogether.

MR. COREN: Four all told, your Honor --

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SPECIAL MASTER RIVERA-SOTO: That's what I thought.

MR. COREN: Yeah. But if it is five, it will be

five. If it's four, it will be four.

SPECIAL MASTER RIVERA-SOTO: Unless the number goes

from four or five to 400 or 500, all of them.

MR. COREN: Thank you, your Honor.

SPECIAL MASTER RIVERA-SOTO: Anything else.

Counsel?

Okay. That is some progress.

I have been informed that we do have a hard stop at

six o'clock, and our court reporter is going to abandon us

at 4:30, although she is looking for a replacement.

So let us try to get through the remaining motions

with a little more alacrity than we managed up until now.

Everybody is going to get a chance to say something. It is

just let's not say it over and over and over again, right?

Next on the docket is BASF's letter motion for

leave to file, quote: A motion seeking judicial findings on

the documents relating to Emtal talc that BASF has located.

Those are ECF Docket Numbers 231, 241, and 246.

Let me get my notes. Motion ECF 231, what BASF has

filed, it is kind of odd, but they filed a motion for leave

to file a motion for judicial findings on documents relating

to Emtal talc that BASF has in fact located, and I assume

has turned over to the other side.

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They assert that tens of thousands of documents in

fact were preserved, that the issue of spoliation is

reserved in respect of the documents that have not been

produced, but they seek a determination of the fact that a

document is missing does not mean that it is spoliated.

They have asserted that there was no selective

destruction of adverse documents, and they also say that the

absence of an original does not mean spoliation.

In opposition at ECF 241, the plaintiffs state that

the motion asks the Court to decide what is really an

ultimate issue in this case on an incomplete record.

Plaintiffs assert they have no knowledge of the documents

that have been withheld, no knowledge as to the fate of the

originals, and no expert proofs regarding the absence of

originals.

By way of reply in ECF 246, BASF asserts that

plaintiffs' opposition, quote, is replete with inaccuracies

and mischaracterizations.

I guess if you are going to go there, you might as

well be replete.

They assert there was no widespread purge of

documents, that there is some confusion as to what documents

are there, and no additional discovery is needed for the

purposes of this motion. They say they are not asking for

summary judgment, but only a finding that certain documents

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in fact do exist, and they argue that it works for both

sides of the case.

That is what has been presented, and I have a very

simple question: Is this application premature?

And if the answer is no, I want to know why not.

MR. FARRELL: The application is not premature,

your Honor, and let me explain why briefly.

The reason it was presented as a motion for leave

to do this is, of course, because plaintiffs oppose us

filing the motion at all.

The reason that we want to raise the issue now and

believe it is appropriate to raise the motion, I think you

heard earlier today, which was when Mr. Placitella was

pressed by your Honor for what his damages would be, the

only truly concrete example I heard him cite was the costs

of constructing an evidentiary record, the costs of the

missing evidence, so on and so forth.

So we made the proposal, actually we, BASF, have

already reconstructed the evidence. We have already found

dozens and hundreds of documents on testing, on sales

records, laboratory notebooks, all sorts of other materials

that plaintiffs, like the class representatives and others,

would use to prove that there was asbestos in the talc and

product identification, so on and so forth.

So if we can bring it to the Court, and your Honor

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makes findings, yes, Mr. Placitella claimed X was missing,

BASF has in fact found that evidence --

SPECIAL MASTER RIVERA-SOTO: How does he know

what's missing when he doesn't know what is there?

MR. FARRELL: Well, first of all, he has taken

extensive discovery already on this issue, three days of

30(b)(6) PMK deposition testimony from Sampson. But the

point is we are not asking for findings on what is missing.

We are asking for findings on what has been found because

that at least takes those issues off the table.

I am sure that if Mr. Placitella opposes the

motion, he will point out his belief that other documents

are still missing, but all we are asking about is the narrow

question of the complaint alleges that certain documents are

gone, we have them, here they are.

Mr. Placitella claims exhibits to the deposition of

Len Hemstock of 1983 are missing. We have found the

majority of them.

SPECIAL MASTER RIVERA-SOTO: But not all of them.

MR. FARRELL: Not all of them, but we have found

the majority of them, and that is why I am saying it's a

very narrow motion. It's not a question of, well, there's a

whole other category of documents we haven't even looked at

yet. Let's just focus on what we have already done.

We have substantial documents on a variety of

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information related to Emtal talc. They have been found.

They have been produced to plaintiffs' counsel. They negate

a large portion of the damages claim in this case, and we

believe therefore streamlined the case by taking an issue in

the case out, and that is what we were proposing. All we

frankly had asked for was the opportunity to file the

motion, not even to have it granted or for your Honor to

actually issue findings.

So all we are asking for is: Can we file this

motion because we believe it would advance the case to do

so.

Mr. Placitella --

SPECIAL MASTER RIVERA-SOTO: How is this motion any

different than a summary judgment motion?

MR. FARRELL: Well, it is different, your Honor,

because we are asking only about the existence of documents.

To reach summary --

SPECIAL MASTER RIVERA-SOTO: But if you are saying

these documents were not spoliated, because, look, here they

are, isn't that a application for summary judgment?

Isn't that saying, look, we didn't commit a fraud

and, look, we didn't commit a conspiracy, and look, we

didn't engage in fraudulent concealment. Here they are.

How is that not a summary judgment motion, not a

complete summary judgment, but it could be partial in

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respect to those documents, but it sure talks like, acts

like and quacks like a summary judgment motion.

MR. FARRELL: I certainly think that the Court

could grant summary judgment for BASF in saying there was no

spoliation given the number of documents we have.

The question is: Would a summary judgment motion

in the other direction be appropriate, meaning that Mr.

Placitella has now raised summary judgment in support of the

plaintiffs, that summary judgment should be entered for the

plaintiffs on spoliation, and that is the issue that I think

we cannot get reached because to get to the --

SPECIAL MASTER RIVERA-SOTO: Well, but he hasn't

done that.

MR. FARRELL: But he is now proposing it, and your

Honor asked about how this is different than summary

judgment. It is different because we are not getting into

the issues --

SPECIAL MASTER RIVERA-SOTO: Mr. Farrell, we are in

Federal Court --

MR. FARRELL: Yes.

THE COURT: -- and in Federal Court, if you make a

motion for summary judgment, you run the risk of having

judgment entered against you even without a cross motion,

because when you make a representation to the Court, as you

must in a summary judgment application, you are making a

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representation that there are no material issues of fact,

that all that is left is the application of law to the

facts.

That, contrary to New Jersey State Court, permits a

Federal Court to enter summary judgment against you, because

you have now judicially admitted that there are no issues of

fact. If the Court does not agree with your legal analysis,

they can enter summary judgment against you.

I have not heard more nor have I seen in any of the

papers Mr. Placitella saying for one moment that he is going

to file a motion for summary judgment. I think Mr.

Placitella is a good enough lawyer to know that this case is

all about the facts. This is not a summary judgment case.

MR. FARRELL: The reference to summary judgment by

the plaintiffs was in their proposed discovery plan, not in

their opposition to our motion.

The reason that I think what we are proposing is

distinct from summary judgment is that to reach the question

of summary judgment, you would also need to have resolved

the exposition issues that are discussed in Chief Judge

Linares' opinion.

You would need to know: Were these documents that

allegedly were not made available to plaintiffs, was it

actually material to their case?

Did they rely on an evidential record that didn't

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include those documents?

Were they harmed by it, so on and so forth.

SPECIAL MASTER RIVERA-SOTO: But what if they

relied solely on those letters that I have been shown, where

lawyers representing Engelhard said there is no asbestos in

the Emtal talc, and look, all of these other people have

dismissed their claims against Engelhard. Isn't that

enough?

MR. FARRELL: No, your Honor. It is still not

enough. That raises the question of the discovery we need

to get in of what the plaintiffs believed and what they

didn't believe.

SPECIAL MASTER RIVERA-SOTO: We are not into your

discovery. We are into your application for a finding --

well, your application for leave to file a motion, whereby

you want the Court to make a legal finding that in respect

to the documents that you still have, no spoliation claim

can be made. That is how I understand your motion.

If I misunderstand it, please correct me.

MR. FARRELL: I do think it is slightly different

and it's the very last portion of what you say. The only

finding we want is that the documents have now been found.

That is all.

I think spoliation, unless I am misunderstanding,

is somewhat of a loaded word in that it carries with it a

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duty to preserve breach of that duty, so on and so forth,

and that was why we very careful or tried to be very careful

to say we don't want to get to those issues. We want a very

limited and focused opportunity to simply say the

plaintiffs' claim document X is gone. We have it.

That is not a question of spoliation. It's not a

question of fraudulent concealment. It's not a question of

how does the presence or absence of these documents affect

historical cases.

It's just they said the document is gone. In fact,

it's not gone. That's all we're asking for is an

opportunity to brief that issue. We think it is something

that's limited and focused in nature that can be done

concurrently with all of the other matters we're talking

about in discovery we are about to undertake, because

frankly, the documents that have been found have been

produced, and I don't know that there is much more to do on

it, other than submit the brief.

Then the questions of spoliation, meaning duty to

preserve, not producing documents, so on and so forth, would

be taken up later.

So if that -- that is the place where the

disconnect is, I want to emphasize, we are only asking for

findings that documents exist, full stop, not questions on

intent, materiality, so on, so forth.

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SPECIAL MASTER RIVERA-SOTO: Where does that get

you?

MR. FARRELL: It gets us to the point of saying

that the claim for damages that you heard about this morning

from Mr. Placitella is not a viable claim in this case. If

the evidence, the record had already been reconstructed, to

use the plaintiffs' word --

SPECIAL MASTER RIVERA-SOTO: But you missed my

question, and maybe I will try to ask it again.

If none of the documents that you have now secured

were ever communicated to the plaintiffs' lawyers way back

when, but they were in your files, not yours, your clients',

excuse me, and they totally contradicted the representations

that were being made, how does that change the case?

I don't see how it does.

MR. FARRELL: Because of the plaintiffs' claim for

damages of the costs associated with reconstructing the

evidence that your Honor's hypothetical presupposes was in

our files --

SPECIAL MASTER RIVERA-SOTO: But if they didn't

spend a penny in reconstructing it, then they have incurred

no damages.

MR. FARRELL: And that is exactly the point we

would be making.

SPECIAL MASTER RIVERA-SOTO: Okay. But it seems to

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me that we are, number one, making it in a procedurally hard

way and at a procedurally odd time. Those are my two

concerns.

I am not saying you don't have a valid motion in

there somewhere, but when I look at it, it's sure as hell

sounds to me like it's a summary judgment motion, and you

can file a summary judgment motion whenever you want. That

is up to you. I have been known to file them in lieu of

motions to dismiss even before I file an answer because the

rules allow them.

You can file whenever you want. I don't think you

want to file one just yet. I don't think you know enough

about the case just yet. You haven't had complete

discovery, but it is up to you, but I just think it is

little odd.

MR. FARRELL: I appreciate that.

The reason that it was presented the way it was,

your Honor, was that this came up ten months ago now, when

all other discovery in the case had came to a halt because

of plaintiffs' objections about scope -- all of the matters

that you are now hearing, and we were trying to propose a

way to get the case moving forward because we completely

agree with your your Honor that it needs to move forward.

This was a proposal we had to try to move the case

forward. Let's narrow it. Let's take one issue off the

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table. This reconstruction claim of the evidence is not a

viable issue because BASF has done the work, and the

plaintiffs don't need to do it. That is why we filed the

motion that we did.

We still think it makes sense to do it. I hear

your Honor on what you're saying in terms of it feels sort

of like summary judgment, do we need to wait.

All we are asking for is the opportunity to brief

it. Obviously, if your Honor believes this doesn't feel

like the sort of thing I can do right now, that would be

your call to make. But, again, all we are asking for is the

opportunity to submit a brief. The plaintiffs can oppose

it, as I am sure they will, and then your Honor can rule on

it.

Thank you.

SPECIAL MASTER RIVERA-SOTO: Mr. Placitella?

MR. C. PLACITELLA: I'll be very brief, your Honor.

The answer is yes, they are asking for summary

judgment without any discovery --

SPECIAL MASTER RIVERA-SOTO: That is not a bad

thing. It's permissible under the rules.

MR. C. PLACITELLA: They could do it, but I am

guaranteeing you they will lose, okay?

SPECIAL MASTER RIVERA-SOTO: Okay.

MR. C. PLACITELLA: I believe I am entitled to the

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information before we go there. This has got to be two

sides of the coin, right?

I have to be armed with the information --

SPECIAL MASTER RIVERA-SOTO: But Mr. Farrell told

me that he has provided you that information.

MR. C. PLACITELLA: Well, Judge, I took their

corporate rep for three days, and at the end of three days,

you know what he told me?

They have two documents, two that are originals out

of all of the testing documents that ever happened.

What does that mean?

And, you know, to say you have a document, when it

has attachments and they are not there, that is not the

document, so we need information.

I say let's put this up front. We can get this

issue out of the way long before anything else. This is

what I propose. Let me take Cahill on the spoliation issue,

on the destruction issue.

I have already taken BASF, so I don't really think

I need to do that unless they are going to change their

position, and let me identify for you 20 documents or less

that I believe are on their privilege log that go directly

to this issue, and you can make the call about whether they

are material in terms of Mr. Assaf's -- I'm sorry -- Mr.

Farrell's assertion to you that no spoliation took place.

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SPECIAL MASTER RIVERA-SOTO: Well, I think we are

mixing a little bit of apples and oranges, because the fact

that a document is on a privilege log doesn't mean it has

been spoliated.

MR. C. PLACITELLA: No, your Honor.

But let's say there were documents on a privilege

log that would illuminate that issue without going any

further.

SPECIAL MASTER RIVERA-SOTO: But aren't we going to

get the tests and all of that?

MR. C. PLACITELLA: What?

SPECIAL MASTER RIVERA-SOTO: I started out the day

by saying there are privilege questions on both sides --

MR. C. PLACITELLA: Correct.

SPECIAL MASTER RIVERA-SOTO: -- on your side it is

a question of whether you waive the privilege by putting the

matters in issue.

On the defendants' side there's a question of

whether the crime fraud exception eliminates the privilege,

and at some point or another, somebody will have to make

those decisions --

MR. C. PLACITELLA: I agree.

SPECIAL MASTER RIVERA-SOTO: -- and it looks like

that somebody is going to be me.

MR. C. PLACITELLA: Happy to have you do it.

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SPECIAL MASTER RIVERA-SOTO: So if I have to do it,

I will do it. But I will tell tell you, I am not excited

about --

MR. C. PLACITELLA: That is why I want to keep it

to less than 20, but that's my whole point.

How can they make in effect what is a motion for

summary judgment on that issue without you looking at the

critical documents and the critical facts?

It's premature, and I believe that when we get that

discovery, we will meet their motion, and they will have

wished they never made it.

SPECIAL MASTER RIVERA-SOTO: Okay.

MR. C. PLACITELLA: Thank you.

SPECIAL MASTER RIVERA-SOTO: Mr. Farrell?

It's not necessarily an invitation, but --

only one card. Okay. One card left.

(Laughter)

MR. FARRELL: Very two minor points, your Honor.

We don't need to derail the class discovery and

other merits discovery when we're talking about doing this.

There is no basis to put summary judgment or any special

discovery on this question before anything else.

The last thing we want to do because of this motion

is to delay the class and merits discovery that has to

happen here. So if we need to discuss this when we discuss

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the schedule later today, happy to do that, but there is no

cause to change the schedule or put spoliation first, and we

definitely should not do that. The whole point of this is

that we thought it was something narrow that could be done

concurrently with that. There's no basis to look at

documents on a privilege log or to look at this or look at

that. We either have the documents or we don't. That is

the only question that is being presented.

Whether Mr. Placitella thinks there is a document

that refers to something else that is missing and so on, I

am sure we are going to get to that in this case at this

point, but it's not the question --

SPECIAL MASTER RIVERA-SOTO: But do you have the

document or not is an issue of fact.

MR. FARRELL: Correct.

SPECIAL MASTER RIVERA-SOTO: Now, what the effect

of it is is an issue of law, though. Whether you have the

document or not is an issue of fact. You are asking the

Court to allow you to file an application where factual

findings will be made.

MR. FARRELL: Correct, your Honor.

SPECIAL MASTER RIVERA-SOTO: It smells like a

summary judgment motion.

MR. FARRELL: It's solely as to the existence of

documents, not as to the elements of anybody's claims,

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whether it's spoliation, fraudulent concealment or not.

Again, all we are asking for is the opportunity to

submit the brief. If your Honor decides it feels like

summary judgment, if plaintiffs convince you it feels like

summary judgment, so on and so forth, then we can deal with

that issue when it comes up.

All we would like to do is submit a brief on the

matter explaining the documents that we found. Plaintiff

can oppose it, and we can go from there. We can also then

proceed with all of the other discovery we are talking about

at the same time.

SPECIAL MASTER RIVERA-SOTO: Thank you.

MR. FARRELL: Thank you.

SPECIAL MASTER RIVERA-SOTO: Before the Court is

the application of BASF for leave to file a motion to make

judicial findings on the documents related to Emtal talc

that BASF has located.

It is my conclusion that that application as it

stands is premature. If it is the desire of BASF to file a

motion for partial summary judgment, it is free to do so

whenever it thinks it is appropriate. But for immediate

purposes, I do not see the logic or frankly the good common

sense behind filing a motion to seek judicial findings to

documents related to the Emtal talc that have in fact been

located. If they have been located, they've been located.

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They have not been spoliated. It is that simple.

I don't know why we need to go all out on a limb on

that, and I don't think that Mr. Placitella is saying

anything different. If you have them, and you produce them,

they can't make claims for spoliation. They may still have

a fraud count, saying you should have disclosed this, but

you didn't, and in reliance on your false representation, we

acted to our detriment.

That is a different story all together. But with

respect to the fraudulent concealment claim, fraudulent

concealment requires that something not be retrievable, and

these were retrieved, so the application is denied but

without prejudice.

The next item on the agenda is plaintiffs' letter

motion concerning the 30(b)(6) deposition notices to -- oh,

I'm sorry -- one thing I need to say with respect to the

prior application.

Cahill did not join in that application.

MR. BLATT: Correct, your Honor.

SPECIAL MASTER RIVERA-SOTO: I knew I was going to

get one of those right.

MR. BLATT: You got it.

SPECIAL MASTER RIVERA-SOTO: Okay. The next

application is plaintiffs' letter motion for two things,

30(b)(6) deposition notices to BASF and Cahill and

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attorney-client privilege issues.

This one had a lot of paper attached to it. It

started with plaintiffs' letter of March 1, 2017 under ECF

247, BASF's response under ECF 264, plaintiffs' reply under

ECF 302, BASF's sur-reply under ECF 3317.

Then there was a separate letter from BASF under

ECF 330, and plaintiffs' response to that under ECF 333.

And I will note, Mr. Placitella, that you sent me a

copy of ECF 333 late or early this week saying that had not

been included when, in fact, it was included in this

package.

MR. C. PLACITELLA: My error.

SPECIAL MASTER RIVERA-SOTO: That is okay. I just

wanted to make sure that your letter of October 23rd made

that representation, speaking of which, in addition to that,

we have a letter of October 19th from Cahill saying, yes, we

join, and then the letter from Mr. Placitella of October

23rd.

Essentially the applications are as follows: It is

claimed by the plaintiffs that they have been stiff armed in

respect of the 30(b)(6) depositions, that attorney-client

privileges or issues among BASF, Cahill and the individual

attorney, defendants need to be resolved, and they requested

a Federal Rule of Evidence 502(d)(4).

In opposition, BASF at ECF 264 has said as follows:

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With respect to the 30(b)(6) depositions, that plaintiffs

aborted the meet and confer process and that only one

30(b)(6) deposition is allowed without leave of Court, and

finally, that you don't need a 30(b)(6) deposition on

documents that, in fact, have been produced.

In respect of the attorney-client privilege, BASF

says that they object to any potential 502(b) order absent a

motion and hearing, and that plaintiffs must prove that the

crime fraud exception applies before you get to pierce the

privilege.

In respect to that, plaintiffs have filed a reply

under ECF 302, stating that two notices were needed to

address separate issues, the destruction and the hiding of

evidence and the fraudulent misrepresentations in respect of

that evidence. They request leave to take two depositions

or allow leave to return after they take the depositions in

the parallel New Jersey State Court in Sampson.

Finally, in respect to the Rule 502(d) order,

plaintiffs assert it is not a shortcut, but it is a

mechanism by which issues be preserved.

BASF filed a sur-reply, hopefully the last

sur-reply they file in this case, under ECF 317, where they

assert that Sampson does not apply to this case, and that

the Rule 502(d) order is not a vehicle to pierce the

privilege.

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Then at ECF 330, BASF files a letter concerning

mootness. They say that BASF offered a 30(b)(6) deposition,

and plaintiffs refused. They asked that it be cross noticed

for here and in Sampson, and plaintiffs took the position

that only the Sampson court decisions should govern the

deposition. The problem there is, as BASF notes, that only

BASF is a party, and that Sampson and the Cahill defendants

are not.

ECF 333 was plaintiffs' response to ECF 330, they

say that the 30(b)(6) deposition is in Sampson only and, in

fact, the deposition was taken.

In the October 19th, 2017 letter, Cahill takes the

position that there is no quarrel with plaintiffs, at least

no quarrel between the Cahill defendants and plaintiffs

concerning the 30(b)(6) deposition notice, but surprise of

surprises on October 23, 2017, plaintiffs sent a letter

saying that, in fact, there is some quarrel between

plaintiffs and Cahill, and therefore the issue applies to

both BASF and Cahill.

MR. BLATT: We never received a copy of that last

letter.

SPECIAL MASTER RIVERA-SOTO: You did not?

Well, let me see. I may have an extra copy.

Would you hand this to Mr. Blatt?

MR. BLATT: Thank you, your Honor.

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SPECIAL MASTER RIVERA-SOTO: Did you not receive

that?

MR. BLATT: No, it was never received by us.

SPECIAL MASTER RIVERA-SOTO: Okay. Well, you will

get a chance to read it now.

SPECIAL MASTER RIVERA-SOTO: Mr. Placitella, it is

your motion.

MR. C. PLACITELLA: The better looking Mr.

Placitella will argue, your Honor.

SPECIAL MASTER RIVERA-SOTO: Finally, finally.

(Laughter)

MR. J. PLACITELLA: Good afternoon, your Honor.

SPECIAL MASTER RIVERA-SOTO: You have big shoes to

fill.

MR. J. PLACITELLA: I do.

Jared Placitella for the plaintiffs, your Honor.

Your Honor, you just went through a lot of paper

for what I think is a very simple issue.

SPECIAL MASTER RIVERA-SOTO: I agree.

MR. J. PLACITELLA: The 502(d) order, I could

address that, but it sounds like that is an issue that

applies to more than one motion in this case, and that we

are going to get to later. So unless you would like me to

address it, I just want to focus on the two 30(b)(6)

deposition notices.

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SPECIAL MASTER RIVERA-SOTO: Let's do that.

MR. J. PLACITELLA: Okay.

So the two 30(b)(6) deposition notices, we are not

here to discuss, you know, BASF's or Cahill's objections,

specific objections to the notices or production with the

notice. We are simply here about the number of deposition

notices that the plaintiffs can serve and the amount of days

of testimony that BASF's and Cahill's corporate

representatives must provide.

I think it is an open issue in this Court whether

leave of Court is required. I didn't see any authority from

this case, I mean, from this Court or this jurisdiction or

the Third Circuit on the issue, but if leave of Court is

required, I think clearly good cause is met here in our over

300 paragraph complaint --

SPECIAL MASTER RIVERA-SOTO: But you have already

taken a 30(b)(6) deposition. How many more do you think you

can take?

MR. J. PLACITELLA: So the 30(b)(6) deposition that

we were talking about in the Sampson case went specifically

only to BASF, and it was only on the issue of document

destruction.

SPECIAL MASTER RIVERA-SOTO: And it wasn't cross

noticed?

MR. J. PLACITELLA: It was not cross noticed, and I

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didn't see any law supporting from BASF's side that by not

cross noticing it, we somehow waived our ability to take

depositions in this case, so I kind of think that's an

irrelevant issue.

SPECIAL MASTER RIVERA-SOTO: I think the opposite

would be the conclusion --

MR. J. PLACITELLA: I think so, too, your Honor.

So the deposition notice in Sampson related only to

document destruction by BASF. It did not relate to the 30

years of misrepresentations, you know, fraud that there was

made to litigant, courts through motion practice, discovery

materials, affidavits, you know, that there was --

SPECIAL MASTER RIVERA-SOTO: I am aware of the

extent --

MR. J. PLACITELLA: -- right. So you are aware to

the scope that is alleged and that we intend to prove.

But those were both that -- those representations

were both made there is no asbestos in Emtal talc and no

evidence of asbestos in Emtal talc, and that makes a

difference because especially BASF says now they have 10,000

documents that exist. Then what was the basis of the

representation that there is no evidence of asbestos in

Emtal talc?

SPECIAL MASTER RIVERA-SOTO: What I am grappling

with is it is fairly standard that we get one 30(b)(6)

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deposition per case, not two or three, and you can't just

divide it up and say, I want to do 30(b)(6) in respect of X,

and then another 30(b)(6) in respect to Y, and another

30(b)(6) in respect to Z.

You issue your 30(b)(6) notice. You say the

subject matter that you need to address, and it is upon the

responding party to say, well, in respect to the first part,

we need to bring in Mr. Jones. In respect to the second

part we need to bring in Ms. Smith. And you arrange that as

you arrange it.

There is nothing special, at least not that I know

of, on a 30(b)(6) deposition that exempts it from the

one-day seven-hour limitation --

MR. J. PLACITELLA: I think --

SPECIAL MASTER RIVERA-SOTO: -- so my question to

you is: Are we putting the cart before the proverbial

horse?

Have you notice a 30(b)(6) deposition here listing

the subject matters that you want the 30(b)(6) deponent to

testify to?

Have you gotten a response from whomever it is that

you served the 30(b)(6) notice as to who needs to appear in

order to respond to your notice of deposition, and if you

think it's going to take more than a day or more than seven

straight hours in the one day, whether you can agree with

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counsel to make it longer or lack in agreement, or do you

think you need to come to me to get additional time, or am I

misreading this completely?

MR. J. PLACITELLA: No, you are not.

We did receive responses to our 30(b)(6) notices to

both BASF and Cahill, but neither designated a person most

knowledgeable to the issues that were listed. So after a

meet and confer session, when we were told both by BASF and

Cahill essentially that you have to choose which deposition

notice you are going to move forward on, and that we are

only going to produce a witness for one eight-hour day, we

brought this to the Court's attention.

SPECIAL MASTER RIVERA-SOTO: Okay.

Anything else you need to add to this?

MR. J. PLACITELLA: Just to say that there is good

cause to exist to have more than one of a 30(b)(6)

deposition because of the 30-year nature, it is hard to

unwind a 30-year fraud from the only witness that could bind

a company in an eight-hour day, so all we ask is --

SPECIAL MASTER RIVERA-SOTO: Well, eight hours is

longer than what the rules provide.

MR. J. PLACITELLA: I'm sorry, your Honor, whatever

the rule provides --

SPECIAL MASTER RIVERA-SOTO: Seven hours.

MR. J. PLACITELLA: I know, I'm overreaching

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already.

Thank you.

SPECIAL MASTER RIVERA-SOTO: That is okay. If you

don't ask, you don't get.

SPECIAL MASTER RIVERA-SOTO: Okay. On your side,

who is responding?

MR. BRESS: Good afternoon, your Honor.

Daniel Bress for BASF.

SPECIAL MASTER RIVERA-SOTO: Good afternoon, Mr.

Bress. Nice to hear from you.

MR. BRESS: Thank you for holding this hearing,

your Honor.

I guess I am a little confused as to what the issue

is now because we had offered to put up a 30(b)(6) witness.

What we said, we are not required to do under Rule 30 was

put up two 30(b)(6) witnesses, so they will be able to have

their Rule 30(b)(6) witness.

SPECIAL MASTER RIVERA-SOTO: Again, I have been at

this for 40 years. You get a 30(b)(6) notice. It outlines

the areas of inquiry, and if you as the respondent need to

have more than one person respond, you tell them that you

need to have more than one person respond, because one

person cannot answer all of those things. But it is still

one deposition, one day, seven hours.

So do you have anything to say other than that?

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I don't mean to cut you off.

MR. BRESS: No, your Honor.

Well, I do have a few other things to say on the

502(d) part of this just to finish off the 30(b)(6), I would

say two things.

Number one: There is not an application presently

in front of you for more than seven hours, and so what they

are entitled to now is one deposition of BASF for seven

hours. If they need more time, they can raise that with us,

but I don't think they have done so at this point.

The second thing I would say is that I do think

that the time for taking a Rule 30(b)(6) deposition on the

issue of documents has passed, because that deposition we

offered, we offered to have that deposition cross notice in

this case, and as your Honor referenced, the position came

back, well, to do that it should be subject to Judge Viscomi

in Middlesex County under New Jersey Rules, and if there

are any issues at the deposition, she should decide them.

We didn't have at the time an issue with her

deciding the issues that came up in the context of this

case, but we did think this Federal Court had authority over

a deposition taking place in a case that was crossed at

least in Federal Court. I think it was plaintiffs' decision

not to move forward with that, and so I don't think it would

be a proper rule 30(b)(6) deposition at this point after our

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witnesses sat for three full days of deposition testimony on

that issue in the State Court case.

SPECIAL MASTER RIVERA-SOTO: Talk to me about the

proposal for a 502(d) order.

MR. BRESS: Absolutely, your Honor.

We have a few slides on this, and I am going to

click through to get there. You will see we have quite a

few things.

SPECIAL MASTER RIVERA-SOTO: Good --

MR. BRESS: So with respect to 502(d) --

SPECIAL MASTER RIVERA-SOTO: -- I think everybody

in the audience appreciates it, too.

MR. BRESS: -- with respect to 502(d), what the

plaintiffs are proposing is essentially that everyone would

agree to a 502(d) order, which would then allow presumably

under seal testimony and discovery of all BASF's privilege,

and the point we want to make to your Honor is that that is

not an appropriate use of Rule 502(d) when we don't consent

to that, and we do not.

The purpose of 502(d) is to provide, and we can

pull up the text of it here, is to provide protection in the

course of a proceeding.

I see your Honor is looking at me strange, so I'm

going to ask what's on your mind.

SPECIAL MASTER RIVERA-SOTO: I am, because I got to

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my copy of 502(d) before you pulled it up on your screen,

because I heard you say there was an absence of consent, and

I don't recall there's anything in the rule that requires

your consent. If it's ordered, it's ordered.

MR. BRESS: Your Honor, I think this is critical,

and I don't think respectfully that that is correct.

I think that in the case of a 502(d) order, the way

it's typically used is in the context of clawback documents,

the inadvertent disclosure privileged documents. That is

sort of the classical situation, in which the rules

committee envisioned this, that if you are making a mass

production of documents, and you think there may possibly be

privileged documents, you can enter a 502(d) order that

provides protection on the back end from any kind of

privilege waiver.

When it is not, though, your Honor, there's a

method of piercing the privilege, and that's what the

plaintiffs are trying to do here.

SPECIAL MASTER RIVERA-SOTO: Where in the language

of 502(d) does it say that it is limited only to inadvertent

disclosures?

MR. BRESS: It's not limited to inadvertent

disclosures, your Honor, to be clear, but it is limited to

consensual disclosures. That is the key point.

If you look, there it no case incidentally that

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allows plaintiffs to do what they are trying to do with

502(d), but we do have the guidance of the Sedona

conference, which is a pretty well-known conference on these

e-discovery and rules issues, and they make this point in a

2014 publication and clearly, where they say: "Although

Rule 502(d) provides broad power to a federal court, it does

not give the court the power to order parties to produce

privileged information, where there has been no findings of

waiver."

And it goes on to make the same point in a couple

other parts of that report, and so our position, your Honor,

is that if there is going to be discovery of BASF's

privileged information, there is a process that the

plaintiffs have to undertake. They need to file the

appropriate motion seeking our privileged documents. There

are then additional processes under the Supreme Court and

Third Circuit precedent that would allow us to respond to

that and to protect our privilege in the process.

But what 502(d) cannot be used for is to have a

proceeding in which former BASF lawyers or Cahill lawyers

testify under oath to privileged information when that is

not a procedure that we agreed to, and so that is the

distinction on 502(d).

SPECIAL MASTER RIVERA-SOTO: But what if it is a

procedure that you are ordered to follow, if there is a

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finding that the crime fraud exception applies with respect

to BASF and Cahill, wouldn't you want a 502(d) order in that

circumstance that says, well, you have to disclose it, but

your privilege is not waived by the disclosure, which is all

502(d) says?

MR. BRESS: Correct.

But I think your Honor made the key point about

sequence, which is if the crime fraud exception is found to

apply, then a 502(d) order at that point would be something

that we want to protect what we would believe to be our

privilege, or at least at the time, if there was not a

certain scope of the privilege. But at this time there has

been no finding that the crime fraud exception has been met,

and that is not a simple finding to make.

It requires plaintiffs to come forward with

evidence and argument in support of that. It is a

significant intrusion on the privilege to breach it under

the crime fraud exception is a very serious and limited

exception to the attorney-client privilege, and so if

plaintiffs were to go through that process, and the process,

as your Honor no doubt knows from the Sampson case, is

typically not a short one.

If the plaintiffs are to go through that process,

and if at the end of that process, after BASF takes

advantage of whatever procedural rights and avenues it has,

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that at the end of that, if the crime fraud exception were

to be found to apply, then at that point your Honor I think

is correct, that the 502(d) order may well be an appropriate

mechanism. But what is not an appropriate mechanism is to

put in a 502(d) order and then without any finding that the

privilege has been waived or breached, to have lawyers

testify under oath about privileged information or have

privileged documents exchanged. That's the distinction.

SPECIAL MASTER RIVERA-SOTO: Thank you.

MR. BRESS: Thank you, your HOnor.

SPECIAL MASTER RIVERA-SOTO: Do you want to join

this group here, given that you just were reading what was

said about you?

MR. BLATT: Just for 30 seconds.

SPECIAL MASTER RIVERA-SOTO: I liked your letter.

It was very brief.

MR. BLATT: Thank you, your Honor.

David Blatt representing the Cahill Defendants.

In the October 23rd submission that I was just

provided, the last exhibit is Exhibit C, where we wrote to

the plaintiffs in response to their 30(b)(6) notice, where

we said: I wanted to advise you that Cahill objects to

appearing for more than one deposition under Rule 30(b)(6).

Rule 30 subsections requires a party to obtain leave of

court to depose a person or entity more than once in a case,

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and that applies to Rule 30(b)(6).

Therefore, Cahill will appear for a deposition to

testify to non privileged matters concerning the topics in

plaintiffs' two pending notices in a single deposition of up

to seven hours, subject to its objections and responses

absent a court order, this is the only 30(b)(6) witness

Cahill will tender in this case.

If after reviewing our objections and responses,

you still wish to proceed with the deposition, let us know.

So I am not sure -- they didn't file their letter

motion. There was nothing about the Cahill objections or

responses attached to it. Your Honor will observe from the

attachment of my October 19th letter that we emailed them

and said: If you want to go forward, let us know. I mean,

we are happy to talk, and that is where things stand today.

SPECIAL MASTER RIVERA-SOTO: You may keep my copy.

I can reproduce it.

MR. BLATT: Thank you, your Honor.

I could ask them to serve it.

(Laughter)

SPECIAL MASTER RIVERA-SOTO: Mr. Placitella?

MR. J. PLACITELLA: I will keep it brief, your

Honor.

SPECIAL MASTER RIVERA-SOTO: Everybody tells me

they're going to be brief.

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MR. J. PLACITELLA: Mr. Blatt, I don't know how you

did not get a copy. You have one, but we'll get you one.

Sorry for the oversight.

SPECIAL MASTER RIVERA-SOTO: He did, and he has

mine. That is done. Let's go on.

MR. J. PLACITELLA: Quickly about 502(d), I was

going to address it, and it was raised, and I'll make this

brief.

As you said, the discretion of whether to enter a

502(d) order is within the Court's discretion, and under a

502(d) order the privilege is not waived, it's preserved,

and here especially would permit as the rule provides to

conduct and respond to discovery expeditiously. Otherwise,

maybe questions such as, you know, BASF's or Cahill's

representative saying what is your basis for the

representation that there is no asbestos in Emtal talc when

there's no evidence of asbestos in Emtal talc, could that be

objectionable.

And if we are going to run into those kind of road

blocks, a 502(d) order that protects BASF's privilege would

be --

SPECIAL MASTER RIVERA-SOTO: You can be rest

assured you are going to run into those road blocks in the

absence of a determination by the Court that you can ask

those questions, so that brings me to what I think is my

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condition precedent.

We know, because Chief Judge Linares has decided

that plaintiffs' claims of privilege have been waived, so

that is now fair game subject to review as to what can or

cannot be produced. But the overarching issue of does the

privilege apply has been resolved.

We don't have that same kind of closure on the

other side because there has been no judicial determination

that the crime fraud exception applies to vicitiate the

assertions of attorney-client and attorney work product

privilege that are asserted by the defendants.

So don't you first have to move for a finding that

their claims of privilege are viciated by the crime fraud

exception, and then we can get into getting into discovery

in respect to it?

MR. J. PLACITELLA: Well, I think there is some

discovery that we need first, your Honor, and the easiest

way to do that discovery is under a 502(d) order that

protects everybody.

SPECIAL MASTER RIVERA-SOTO: But you're going to --

that may be putting the cart before the proverbial horse,

because if you have a 502(d) order, it means that privileged

information is disclosed, and that is the old how do you

close the barn door after the horse is gone quandary.

So the way to avoid that is to get some kind of

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determination ahead of time that says: Here's the

boundaries of what you can ask. In respect of those

boundaries, you can now go and take a 30(b)(6) deposition or

issue a request for production of documents or issue a

notice of deposition or request for admission that deal with

that. Now, that the determination has been made as to what

is or was not privileged, but we need to get past that

threshold first.

MR. J. PLACITELLA: I think in order to get to that

threshold, though, we need some certain discovery.

SPECIAL MASTER RIVERA-SOTO: What do you mean?

MR. J. PLACITELLA: If we move on a crime fraud

exception for a prima facie case, BASF or Cahill is going to

say we have not met our burden.

I don't know what we need. I need facts and part

of those facts are the 30(b)(6) depositions.

SPECIAL MASTER RIVERA-SOTO: Stay with me for a

minute, okay?

MR. J. PLACITELLA: Sure.

SPECIAL MASTER RIVERA-SOTO: You have alleged in

your complaint that representations were made that were

false representations, and that therefore it logically

follows any of those representations that are trying to be

protected by the attorney-client or work product privilege

are viciated because of the crime fraud exception.

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You have proof because Mr. Placitella, Sr. Gave me

a bunch of letters that were highlighted where those

representations in fact were made.

I am told that you have been provided with the

record that counsel has recreated documents that purportedly

have been spoliated that I assume at some point or another

back up or will back up one of two things, either the

representations in the letters that there was no asbestos in

the Emtal talc or back up the allegations that are in the

complaint that, in fact, there were and everybody was lying

about it. One or the other is going to happen.

Based on that factual record, I will tell you, I

would feel comfortable enough making a determination as to

whether the crime fraud exception applies, and since that

application is going to come to me, I think that gives you a

pretty good idea that I am not going to have a problem with

the record being incomplete.

Now, the legal conclusion are a different story all

together, but I don't think you have to concern yourself

with the --

MR. J. PLACITELLA: Fair enough, your Honor.

Before we discuss the record, and I want to leave

that to the side, and we will take that course of action

under advisement when the time occurs.

SPECIAL MASTER RIVERA-SOTO: So what do you want me

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to do about your motion?

MR. C. PLACITELLA: For our motion for two 30(b)(6)

depositions?

SPECIAL MASTER RIVERA-SOTO: Yes.

MR. J. PLACITELLA: We would like two 30(b)(6)

depositions to go forward at a time after the Court

determines what is appropriate discovery and under the

appropriate protection.

SPECIAL MASTER RIVERA-SOTO: Okay.

Anything else?

MR. J. PLACITELLA: That is it.

SPECIAL MASTER RIVERA-SOTO: At issue is the

application of the plaintiffs under ECF 247 for the ability

to take two 30(b)(6) depositions of a corporate

representative of BASF, and by that I mean two depositions

on two different days concerning different topics.

To the extent that that application is being

presented, that application is denied.

The procedure that should be followed is a 30(b)(6)

notice of deposition should issue that lists the areas of

inquiry that the proponent of the deposition is seeking to

have covered in the deposition. If the receiving party

thinks that more than one person is necessary to

appropriately respond to the deposition, and that is a good

faith evaluation, then they are to notify the plaintiffs and

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say: We don't have one person that can answer all three of

your categories - I am just making the numbers up - but we

have three individuals who can do so.

That said, it is one deposition, and it is one

deposition, one day, seven-hour maximum.

If you find that that is not enough time, then I

would strongly urge you to discuss it with your opponents,

who I am sure will be very reasonable about it and will try

to accommodate you as beset they can.

If that does not provide the amount of time that

you think is needed, let me know, and I will help you.

I will, however, tell you that in 40 years of

practicing law, I have only taken one deposition that lasted

more than four and a half hours. It's a matter of

preparation, Counsel.

Now, that said, there is a separate part of this

application that deals with the attorney-client privilege

issues. That portion of your motion is also denied without

prejudice to the filing of a motion for a determination as

to whether the crime fraud exception applies to any

privileged claim made by the defendants.

Make sure that that application is properly

supported with facts. I know that the defendants will

respond appropriately, and I will address it in due course,

and I think you all learned that my due course tends to be

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pretty quick.

Finally, there was the request for a 502(d) order.

I think that is a little premature, so that is also denied,

but, again, without prejudice.

I think that although I do not agree that a consent

is necessary for a 502(d) order, it is always better if

counsel work that out, just like they work out discovery and

confidentiality orders. The concern in respect of that is

that privilege, once you open that door, it's impossible to

close it, and giving it the breadth that the plaintiffs

would like me to give it, it's I think just a recipe for

mischief, and so I would prefer if you try to work it out

between you.

If you are unable to do so, then, if necessary, I

will address it, and I will address it quickly.

I think that covers all of the matters that are at

issue under that motion.

Did I leave anything out, Counsel?

MR. ASSAF: No.

SPECIAL MASTER RIVERA-SOTO: The next motion is

plaintiffs' letter motion to compel BASF's production of

agreements with co-defendants concerning this litigation and

related matters. That is ECF 248, 265 and 294.

Mr. Blatt, they have you listed as joining in on

this one under 266, but I don't see that in 266, so can you

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help me there?

MR. BLATT: It's not in 266, we have not.

SPECIAL MASTER RIVERA-SOTO: I don't see it in 266,

but I am an old guy, and my eyes may not be working right.

Here is 266 for you.

MR. BLATT: We could join, but I don't know what is

in 266.

SPECIAL MASTER RIVERA-SOTO: Okay.

Is it somewhere else?

MR. BLATT: Because I don't think the motion was

directed to us.

SPECIAL MASTER RIVERA-SOTO: No. It was directed

to BASF.

MR. BLATT: Yes. So we have joined in BASF's

motions --

SPECIAL MASTER RIVERA-SOTO: Right. But this is

not BASF's motion, it's plaintiffs' motion.

MR. BLATT: That's correct, your Honor, and so we

did not file something joining it because it was not a

motion directed to us. We do, however, support BASF's

position in it.

SPECIAL MASTER RIVERA-SOTO: So you are joining

now?

MR. BLATT: Correct.

SPECIAL MASTER RIVERA-SOTO: Okay.

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I say that because on the agenda that Mr. Assaf was

kind enough to prepare for us, he has you listed as a

joinder under ECF 266. I just couldn't find it there.

Maybe I can't find it because it is not there.

All right. So you are in this, too?

MR. BLATT: Yes.

SPECIAL MASTER RIVERA-SOTO: So then we are talking

about ECF 246, 265, 294, and as modified today, 266.

In ECF 248, which is plaintiffs' letter request to

compel BASF to produce agreements with its co-defendants

concerning this litigation and other matters, plaintiffs had

requested an indemnity forbearance standstill settlement

arbitration, joint defendants for like agreements between

BASF and any or all of its co-defendants.

Plaintiffs assert that the agreements are relevant.

They are not privileged. They are within BASF's control,

that the existence of those agreements is demonstrated by

the absence of any cross-claims between the defendants, that

the agreements are proof of potential bias, and therefore,

they are relevant.

The plaintiffs assert that they are not privileged

because they were not prepared in anticipation of

litigation, and either BASF has copies or the ability to

secure copies to those agreements, and therefore no undue

burden in production.

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In opposition at ECF 265, BASF asserts that first

the documents are unavailable, if they are the result of a

mediation that plaintiffs, BASF and Cahill conducted in

2016, and referring to the local rules.

Second: That is not relevant. Those agreements

are not relevant to the claims or defenses in this case.

Third: They assert that the common interest

privilege, or what us old people call the joint defense

privilege, applies in this case. They assert the irony that

plaintiffs refuse to produce documents concerning their

agreements with the Bevan law firm and like, and that the

same should apply here, which by that way that kind of

argument holds no weight with me whatsoever. I don't think

tit for tat works at all.

Third: That the Court must distinguish among

indemnity, standstill or joint defense agreements that joint

defense agreements are not relevant, that settlement

agreements are not relevant, and you need to show a

particularized showing that admissible evidence will result

from disclosure, and that indemnity agreements only show

bias, that is not overwise shown by another readily apparent

source, and BASF asserts that the attorney-client bias

between BASF and Cahill is readily apparent.

It then addresses the common interest privilege and

at the request for joint defense or indemnity agreements are

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interdicted by the common interest privilege that plaintiffs

must show that the parties share a common legal interest or

represented by counsel, and that they have taken steps to

protect their communications, all of which BASF asserts they

have done, and therefore, the common interest privilege

applies.

By way of reply, which is at ECF 294, plaintiffs

refer to Cahill's joinder, which is interesting, because no

one knows where that came from. They claim that portions --

that the protection under the -- that BASF's claim that

protection under the mediation privilege and common interest

privilege or relevance do not apply, that these documents

are relevant as a proof of bias, and particularly in respect

to the civil conspiracy claim, and that the common interest

privilege does not apply as there is no proof of a joint

defense agreement, even though they requested a copy of the

joint defense agreement.

Who is coming up?

MR. COREN: I am your Honor, plaintiff. Michael

Coren for plaintiffs.

Your Honor has put on the record I think a very,

very fine summary that the parties have argued and briefly

we feel that we are entitled to get the indemnity agreement,

and if there is a settlement agreement, we are entitled to

know the lay of the land.

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SPECIAL MASTER RIVERA-SOTO: Why?

MR. COREN: Because, your Honor, these parties

before were at odds with each other, and if they were at

odds with each other --

SPECIAL MASTER RIVERA-SOTO: Well, you claim that

they were in a civil conspiracy, so which one is it?

MR. COREN: Understood. But when things fell

apart, when things fell apart, and they started to become

unraveled, were they at somewhat odds with each other?

Did they have claims against each other that bear

upon that they have resolved because, your Honor, we got the

entire controversy doctrine here, and under the entire

controversy doctrine, if BASF had a malpractice claim

against Cahill hypothetically, and you know, we are entitled

to know if that has been litigated, and if it has been

litigated, resolved in a settlement or if it's a pending

claim, it has to be listed because all of the transactions

have to at least be brought to the Court's attention, so it

could decide whether it will allow them to piecemeal --

SPECIAL MASTER RIVERA-SOTO: I don't understand

that, because if there is a pending claim between BASF and

Cahill, they can decide between them that the entire

controversy doctrine does not apply, and you really don't

have a dog in that fight.

MR. COREN: I'm not so sure about that, your Honor,

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with all due respect.

SPECIAL MASTER RIVERA-SOTO: Because it doesn't

affect you. You know, you are not part of that fight

between them. You have a right with them, but not between

them.

MR. COREN: But if they try to come back to court,

that will be a defense that gets, you know, interjected and

you can't contract the realm. It's a --

SPECIAL MASTER RIVERA-SOTO: You can waive the

entire controversy doctrine. You can.

MR. COREN: I have to tell you, your Honor, that's

news to me. I always, as I read Conjo (phonetic) and its

progeny that you could waive --

SPECIAL MASTER RIVERA-SOTO: The rule has

changed --

MR. COREN: -- that this is where the Court had to

have control.

Be that as it may, your Honor, Courts have -- there

are legends of cases, we cite them to you, that said an

indemnification agreement changes the relationships between

the parties, and it is a fact that they get to take into

account.

If somebody has been absolved of liability, it is a

fact that they get to take it upon -- it bears upon

veracity. It bears upon bias. It bears upon credibility,

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and that is why the Courts gives that. The problem child

case, your Honor, let's cut to the nuts, is the joint

defense agreement. There the Courts says, hum, maybe, maybe

not, let me take a look at it.

First of all, we have to right to know if there is

one. There has not yet been a corporate statement there is

one, we have one in writing, this is the part. And even the

cases that say you don't get it, say you get that

information, and they are stonewalling us on that

information --

SPECIAL MASTER RIVERA-SOTO: Mr. Coren, maybe I am

a little more Pollyanna than you are, but I look at the

defense side, and I see it being led on one side by Kirkland

& Ellis, and on the other side by Williams & Connolly.

You would be able to knock me over with a feather,

and I am a pretty dense guy, if they don't have a joint

defense agreement going between them. You don't have to

admit it. I am just saying, I would be stunned beyond

words.

MR. COREN: Yeah. But we have a right to know that

for a fact because earlier today you said we go on facts.

We don't go on what we as lawyers know should be, just as

you just described, so taking the cue from you, your Honor,

I want the facts.

SPECIAL MASTER RIVERA-SOTO: I hate it when people

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cite my own words back to me. It's terrible.

(Laughter)

MR. COREN: It's got wisdom.

Anyway, your Honor, we are entitled to know if they

exist, who, when, and what the parties are.

SPECIAL MASTER RIVERA-SOTO: How does that advance

the ball for you?

That is the part I am not getting. So they have a

joint defense agreement, how does that advance the ball for

you?

MR. COREN: Because, when -- your Honor, earlier,

last week, we offered you Justice Stein's report if you

would -- and all of a sudden, you said, look, I will only do

it if the parties -- if the parties say I could see it, all

agree, because somebody has some privileged elements

there --

SPECIAL MASTER RIVERA-SOTO: Actually that is not

why I said it.

I said it because I was told that on the emergent

application made to the Appellate Division from Judge

Viscomi's order, which provided that the stay would still

remain pending the application, the Appellate Division had

denied the emergent application, but I was also told that

the very next morning that the defendants had moved for

either reconsideration or were going to file a position for

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certification before the Supreme Court of the state.

It struck me that under those circumstances, we

shouldn't be looking at this tiny little window of

opportunity, but we should honor the spirit of what Judge

Viscomi ordered, and that therefore, I did not want to look

at Justice Stein's report unless, and that is what I said,

well, I put it, provided all parties agree.

Well, all parties did not agree, so I didn't want

to see it.

MR. COREN: I understand that.

And Judge Viscomi last year modified the April 5,

2013 order, that's the sealing order, and to allow at that

time -- either or both Chief Judge Linares and Magistrate

Judge Dickson to see it, if they wanted to. Just like I

would like to see it.

Judge Dickson felt he couldn't see it because there

were two parties here who don't have access to it.

Ironically, both are BASF former lawyers, defendant

Dornbusch and defendant Halket.

The point here is in the joint defense agreement,

they have cooperation clauses or access clauses, don't know,

but it is not unheard of. Then that sort of cuts to the

chase.

What do you mean, they can't see it?

They have a right to see it under the agreement,

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and therefore, you have a right to say under those

circumstances, please give me the Stein recommendations and

opinions. I'm just giving you one hypothetical of where and

how and why it matters.

We have the right to see who is paying the money.

Follow the money we were taught, breaker two.

And, you know, that is one of the ways you follow

the money. That is one of the reasons the Courts find the

indemnification in the settlement agreements, and those

issues bear upon credibility and veracity.

Your Honor, you know, I think you got a grasp, you

know, of the knowledge. If there are any questions I could

answer for you, if not, I am going to resume my chair.

SPECIAL MASTER RIVERA-SOTO: Let me ask you about

what you just said, which was follow the money.

Is there any basis for the assertion that somebody,

other than a specific defendant, is paying for the cost of

that specific defendant's defense?

MR. COREN: Once again, it is that practical

portion of me, that when I look at the way lock step

Dornbusch and lock step so far Halket have been following

BASF's leads, notwithstanding the fact you can see some

intentions in that relationship, I would tend to think that

maybe that their defenses are being paid for, but once

again, I don't have the facts. I only have the intuition,

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and that's not good enough for you, your Honor. We need the

facts. I'm asking you to make them produce the facts.

In the worst case produce it in camera, and you

tell us if it is privileged. If not, then, you know, we

move on.

SPECIAL MASTER RIVERA-SOTO: This may be an unfair

question to you, but the New Jersey Supreme Court issued an

opinion called In Re Grand Jury Proceedings that addressed

the issue of the representation of parties being paid for by

other parties in the case.

Are you familiar with that case?

MR. COREN: I am not, your Honor?

SPECIAL MASTER RIVERA-SOTO: It breaks my heart

because I wrote it.

(Laughter)

MR. COREN: I apologize, but I assure you the next

time I'm here, I will be fluent in it, well versed.

SPECIAL MASTER RIVERA-SOTO: You might want to take

a look at that to determine what, if anything, in respect of

these agreements, because I think you find the scope, or at

least, as I understand it, it is a bit narrower than what

you are asserting, so -- but that is just my suggestion.

MR. COREN: All right.

Thank you, your Honor.

SPECIAL MASTER RIVERA-SOTO: Thank you.

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Who do I have?

Mr. Bress, welcome back.

MR. BRESS: Thank you, your Honor.

I will be brief, your Honor, based on your

comments, but I don't think the plaintiffs have put forward

a proper basis for any agreements among defendants related

to this case.

The basis they put forward are generic allegations,

bias or generic allegations of civil conspiracy. I think

either of those justifications would warrant production of

these kinds of agreements in every single case, and that is

not what happens.

I think that, as your Honor pointed out, perhaps

there is some fact or piece of information within this that

they would be entitled to. They have not made that request,

although, as your Honor pointed out, it is clear that there

are agreements among the defendants in a joint defense

capacity, and I think we made that clear to the plaintiffs.

I think the only thing to add, your Honor, is that

where the record currently is, I think the information they

provided you is not sufficient, and I think there are also

privilege concerns that exist as well.

Thank you.

SPECIAL MASTER RIVERA-SOTO: Thank you.

Mr. Coren, anything else?

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MR. COREN: I think the fields are pretty well

plowed, your Honor.

SPECIAL MASTER RIVERA-SOTO: Thank you.

At issue is plaintiffs' motion to compel BASF's

production of agreements -- oh, I'm sorry, before I go

there.

Mr. Blatt?

MR. BLATT: No, your Honor.

Thank you.

SPECIAL MASTER RIVERA-SOTO: You are being very

quiet over there. I don't blame you.

MR. BLATT: I will fully subscribe to what Mr.

Bress said.

SPECIAL MASTER RIVERA-SOTO: Okay.

At issue is plaintiffs' letter motion to compel

BASF's production of agreements with the co-defendants

concerning this for litigation and related matters. The

original motion was filed on ECF 248. For the reasons that

follow, that application will be denied without prejudice.

As the record stands right now, there has been an

insufficient showing of a particularized need to get any of

these agreements.

I don't know if there are indemnity agreements. I

don't know if there forbearance agreements. I don't know

whether there are standstill agreements. I don't know if

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there are any settlement agreements. I don't know if there

are any arbitration agreements. I don't know, but I am

pretty damn sure that there is at least one joint defense

agreement between BASF and any and all of the other

defendants. The existence of those agreements alone is not

enough to justify their disclosure.

Specifically talking about joint defense

agreements, the whole purpose of a joint defense agreement

is to allow lawyers representing different clients to be

able to speak with each other as if they were within the

same law firm. You know, somebody put it differently, but

that is the way I have always cognitively thought of it, so

that discussions are always privileged among those lawyers.

It is not unusual, and I would dare say it is

commonplace that in litigation like this, that the

defendants will enter into joint defense agreements to

provide that kind of free flow of information that assists

in the preparation of the defense for everyone, so that

lawyers who really have interests that are aligned don't

have to be cautious in what they communicate to avoid

violating any kind of privilege.

I will tell you that it has its salutary effect,

because when you have multiple defendants, and there is a

joint defense privilege, it allows the defendants to speak

with one voice, which means that the Court will then hear

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only one voice in respect to their position instead of

hearing four, five or six voices.

I will tell you from my own personal experience,

that that is incredibly valuable for everybody who is

involved, because you get a moderation of the positions that

are being advanced, and the Court gets to listen to one

consistent line instead of people with variations on a

theme.

So the presumption at least in respect to joint

defense agreements is absolutely against their disclosure,

and the proof needed to be able to overcome that presumption

is very high, and it is just not here. Under Third Circuit

law, settlement agreements are not disclosable unless one of

two things happen.

Number one: Somebody makes a mistake of putting

them as part of the record, which some people mistakenly do,

and once they do that, they are open season, or there is a

showing of particularized need for their disclosure, and

there has been none here.

So to the extent that this application seeks any of

those agreements, it is denied, but it is denied without

prejudice. If there is something more that you have that

tells me that there is a particularized need for you to get

these documents, then bring it to me, and I will give it all

fair and due consideration.

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Which takes us to our next application, and that is

BASF's letter motion, re the discovery of documents and

information concerning plaintiffs' decedents' settlements of

underlying asbestos cases both with Engelhard and other

defendants. That is ECF 250, 266, and Cahill did join in

that one, 267 and 287.

In addition to that, last night I received a letter

on behalf of who I just stated -- I received a letter from

Mr. Weiner. Did I pronounce that correctly?

Mr. Weiner from O'Toole Scrivo representing

Vanderbilt Materials.

I was told Mr. Weiner was going to be here.

MR. C. PLACITELLA: Your Honor, he was here, but he

had to catch a plane. He didn't get to participate in this.

SPECIAL MASTER RIVERA-SOTO: Okay. I wish he had

told me that. I would have taken him out of order.

In any event, in ECF 250, BASF moves for the

disclosure of this information asserting that it is neither

privileged nor confidential, that the settlement that the

plaintiffs' decedents entered into are directly at issue in

this case and therefore relevant, and that any privilege

that might exist has been waived, and the production does

not cause an undue burden.

At ECF 266, Cahill joins in that application.

At ECF 267, plaintiffs oppose the application.

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They generally say that these matters are not relevant.

They are privileged. They are confidential, and producing

them would cause an undue burden. They state that the

information concerning unrelated defendants is not relevant,

that settlement information is prohibited under Federal Rule

of Evidence 408, that in respect of putative class members,

BASF has failed to make a heightened showing of

particularized need, that in respect to disclosure of the

representative plaintiffs, it should be limited to basic

information concerning the proceeding, nature and claims

against BASF, BASF's representations to counsel and the

courts, and the outcome of litigation in respect of BASF.

Plaintiffs also raise the issue of a protective

order, but I do note that on the same day that they filed

ECF 267, the Court entered a discovery confidentiality

order, which I think moots that point.

Plaintiffs assert that the issue here is

defendants' conduct, not plaintiffs, that there has been no

ruling as to whether the privilege must yield, but again, I

note that Chief Judge Linares' August 3rd, 2017 opinion

addresses that point.

Plaintiffs assert there has been no waiver in

respect to the putative class members. They assert that the

information is privileged, it's irrelevant, wholly

inadmissible, and not proportional to the needs of the case,

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and therefore unduly burdensome.

By way of reply at ECF 287, BASF asserts that the

deposition of plaintiff, Marilyn Holley, shows that her

decedent entered into identical aggregate settlement with

co-defendants whose products did contain asbestos.

Therefore, belying the notion that she would have reached a

different settlement, but for misrepresentations.

They also argue that the settlements are not

privileged or confidential. They argue at some points that

New York or Ohio privilege law applies, although I think we

are past that, and we're all talking about New Jersey at

this point.

They say even if New Jevery law applies, there is

no privilege because plaintiffs placed the privileged

communications at issue.

They assert that the settlement information is

relevant to plaintiffs' allegations, that BASF did not

forfeit its right to discovery, and that Rule 408 is not

purported discovery.

Finally, they say the discovery is proportional and

not an undue burden.

Late last night I received a letter that I

mentioned before from Mr. Weiner of O'Toole Scrivo

representing Vanderbilt Minerals. In it they assert that

Vanderbilt has a substantial interest in maintaining the

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confidentiality of settlement information and documents.

The Third Circuit opinions rendered discovery

irrelevant, that Rule 408 prohibits disclosure, and that the

discovery confidentiality order does not cover non parties.

BASF, it is your motion.

One card, good.

MR. ASSAF: Two, your Honor.

MR. ROTH: It's small writing.

MR. ASSAF: Gene Assaf on behalf of BASF.

Your Honor, with respect to the settlement

agreements, I hope that some of that may have been taken up

in your earlier ruling on the Bevan, et al. Issues.

But to try to address the landscape, I think after Judge

Linares' ruling, there is no privilege or scope defense left

as to the settlement issues.

I think the Bevan issues, I would ask for some

clarification on that, as to whether Mr. Placitella I think

is still saying that things in the Bevan files that are

settlement documents with other defendants are going to be

produced. He is not logging them as privileged, but I think

he is just withholding them, so I just would --

SPECIAL MASTER RIVERA-SOTO: Well, that is not an

option. My order is fairly clear.

MR. ASSAF: Correct.

SPECIAL MASTER RIVERA-SOTO: You are going to have

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two sets of documents coming out of those reviews, documents

that you produced and are Bates numbered, and documents that

appear on a privilege log that are also Bates numbered, and

those documents on a privilege log are to be provided to me

to decide whether they are in fact privileged.

Those are the only two categories, and if I need to

make that any further clear, I don't know how.

MR. ASSAF: Well, I am still a little unclear,

though, because I don't think settlement with other

defendants are by any definition privileged, and yet --

SPECIAL MASTER RIVERA-SOTO: Whether Mr. Placitella

says that they are or not, they are either going to be

produced to you as not privileged, or they're going to be

produced to me as privileged, and I will make my judgment,

but everything in those files is to be produced, one way or

the other.

MR. ASSAF: Thank you for the clarification, your

Honor.

So on that issue then, so not privileged, there is

still an argument that they have on custom and practice,

that there's a custom and practice in Ohio and not to -- or

to keep these confidential, and I think the Vanderbilt --

SPECIAL MASTER RIVERA-SOTO: We are litigating this

case in New Jersey.

MR. ASSAF: -- the Vanderbilt argument was that

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there are also confidentiality concerns. I think both of

those issues are addressed, your Honor, by protective order

issues, attorneys' eyes only, however they want to do it,

but I don't think that should be a stop.

The real issue, though, is relevance after the

Judge Linares' scope issue, because your hypothetical today

to Mr. Placitella on the $10,000 that was settled to claims,

that's out of their complaint, right, that they said they

would have settled for more, if they had known X. So how do

we know that?

And one of the things we are going to know is we

will have control cases. As we point out in our brief, we

now know that one named plaintiff settled with talc

companies who admitted there was asbestos in the talc for

roughly $300. At the same time they were settling with us

for $300. I would think that under any definition of

relevance, I get to now test that proposition.

We also know that plaintiffs were settling with

asbestos manufacturers for larger amounts, but incrementally

larger, not hundreds of thousands of dollars, but thousands.

Again, so that tests the proposition. Would plaintiff have

really taken the case to trial against us, if they had known

there were trace amounts of asbestos, and they had worked

with our product for a couple of months versus settling with

other defendants, BF Goodrich, that they worked there with

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asbestos for 30 years and they took $10,000.

Obviously, I think that's relevant, but it is also

I think covered by Chief Judge Linares' order, and this

might be a further clarification on the Bevan issue,

because --

SPECIAL MASTER RIVERA-SOTO: You have to make sure

we are not mixing our apples and oranges.

When you say to me an employee settled his claim

against his employer for X number of dollars based upon an

allegation of environmental exposure, there is a lot that

goes into that determination.

MR. ASSAF: Correct.

SPECIAL MASTER RIVERA-SOTO: I mean, I can tell you

I don't know about Ohio, but one of the issues that would be

raised in New Jersey is whether the claim is entirely barred

by your Worker's Compensation Act, and New Jersey has an

exemption for intentional wrongs, but the case law says that

in order to vault the non litigation bar in the Worker's

Compensation Act, the plaintiff has to show that serious

injury or death will result from the employer's actions, so

it's an awfully high bar, which means that a lot of times

employers settle cases for pennies on the dollar because it

is cheaper than defending them and ending up with a

determination that the Worker's Compensation Act bars.

MR. ASSAF: Fair point, your Honor.

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But in these cases, we know, for example, plaintiff

Holley, sued not just her employer and the seven talc

manufacturers, but 137 defendants. So those numbers as to

what she settled with the 136 who were not her employers,

would clearly be relevant, and the other additional

relevancy, and I know you're going to address this in the

Bevan analysis, but in 228 they talk about aggregate

settlements. We haven't spoken a lot about those today, but

they are in our papers.

I don't think that those settlements should even be

logged at this point. I think that Judge Linares' order

covered those aggregate settlements. He said, you put that

at issue, you reduce them. So I don't think Mr. Placitella

could log those from that --

SPECIAL MASTER RIVERA-SOTO: Well --

MR. ASSAF: -- if he does, you're going -- you will

have it, I get it.

SPECIAL MASTER RIVERA-SOTO: If he does, I will get

it, and I will apportion the costs of my doing so

accordingly.

MR. ASSAF: These were in our briefs, your Honor,

but here is where I want to end up on the substance, and

then I have one procedural point.

On the substance, your Honor, we talked a lot about

class today, and we've had interesting discussions, and I

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appreciate your Honor's raising the questions for both sides

to think about.

We haven't talked about Comcast, and Comcast makes

it pretty clear that the evidence of damages will have to

obviously be part of the expert testimony. We were talking

about Comcast yesterday, and then I was saying at the break

the Judge was in our conversations regarding the

hypotheticals and how you model to this, and what you say to

the jury about this.

So, your Honor, even if it weren't relevant at some

stage for the claims, it's going to be relevant for a

damages analysis under Comcast in the Third Circuit,

and so I want to put out a marker that if they're saying

you're not getting any of this information, it's only what

BASF settled for, I don't think their damages expert is

going to have any reliable model under Daubert and Comcast

to come here and so I don't want to then six months from now

hear, oh, now we're going to go back and dump this

information on you, so I think under Comcast we're going to

get it.

Then finally, your Honor, I'm going back to the

Bevan issue, unless you have any questions. I did have a

procedural question on that. I asked you about whether Mr.

Placitella would pick this randomly, and you indicated he

should. I wonder whether --

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SPECIAL MASTER RIVERA-SOTO: I also said that the

selection should be sticking your hand in a box and pulling

things out --

MR. ASSAF: Correct, your Honor, and again, I'm

doing --

SPECIAL MASTER RIVERA-SOTO: -- not picking the

first five. You just --

MR. ASSAF: -- this is actually just for the

integrity of the process, I have no question about Mr.

Placitella for sure. But I'm wondering whether we should

just say, you know, the first 30 names in the alphabet in

the files we should take, or have, you know, a glamorous

trip for an associate to Ohio with Mr. Placitella, because

this is such -- we know -- we know --

SPECIAL MASTER RIVERA-SOTO: We don't need to do

that. Mr. Placitella knows what to do, and I have every

confidence that he will do that.

MR. ASSAF: Okay.

So on settlement documents, your Honor, I would

argue that all of these settlement documents are covered by

the order. We think they are important for class issues.

We think they're important for admissions and individualized

issues as well.

If you have any questions, your Honor, I am pleased

to respond.

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SPECIAL MASTER RIVERA-SOTO: Thank you very much.

Mr. Placitella, you're back.

MR. C. PLACITELLA: I am back.

I'm sorry that Mr. Weiner left. He would have been

I think shocked to hear that his client admitted there was

asbestos in the talc since they are litigating all over the

United States that there never was and never is. But,

unfortunately, he's not here to address it. They will have

to fight it out at some point I guess.

So I go back to Chief Judge Linares' decision and a

key issue, the essence of his decision. The scope of

discovery will focus on the alleged wrongful conduct and any

alleged harm following that conduct.

He goes on later: To fully explore this issue,

defendants will be entitled to discover what the plaintiffs

and their counsel knew, were told, and whether any knowledge

or lack thereof contributed to their decisions --

SPECIAL MASTER RIVERA-SOTO: In resolving the

underlying --

MR. C. PLACITELLA: -- in resolving the claim with

BASF.

The direction from the Third Circuit has been

clear. As I said this morning, we're not relitigating the

underlying claim, and what somebody else may settle with is

relitigating the underlying claim.

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Why they settled, for example, with Owen Corning

Fiberglass because they might have been going bankrupt, or

because the exposure was tangential is not at issue here.

What's at issue here is the case against BASF. All

of these co-defendants that they say they want settlement

documents about, they had their cross claims dismissed

fraudulently. They can't bring them back in the case

through the back door now. They dismissed their cross

claims against these co-defendants on the same basis these

people lost their rights.

Now, they want to come back in and say, oh, well,

that -- we want to put that back in the case even though we

got rid of them fraudulently.

SPECIAL MASTER RIVERA-SOTO: What is the harm in

requiring a production of these agreements?

MR. C. PLACITELLA: Because the settlements are

confidential when the plaintiffs --

SPECIAL MASTER RIVERA-SOTO: Are they all

confidential?

MR. C. PLACITELLA: The overwhelming majority are

confidential.

I believe actually the settlement -- they can pull

one of their joint releases. I actually believe that the

settlements that BASF has with the other defendants are

confidential, and that's why Mr. Weiner wrote his letter,

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because it was saying, Oh, wait a second. We were part of a

joint settlement with you. You don't -- we don't want that

disclosed. That's confidential. The settlements are

confidential.

Are there one or two that are not?

I can't speak to that right now, but I know

generally, I've been in this a long time, almost every

defendant requests a confidentiality order, and I am not

allowed to disclose that, and they guard that very, very

carefully. And the plaintiffs guard that very, very

carefully because there are a lot of things that go into

those decisions, and you can't equate one with the other.

SPECIAL MASTER RIVERA-SOTO: But that is exactly

the point that BASF is making, that there is a great deal

that goes into the decision of settling a case, and that

they are entitled to know whether part of that thought

process was the information, the representations that were

made by BASF either directly or through their counsel to the

underlying plaintiffs' counsel.

MR. C. PLACITELLA: We have no issue with that.

SPECIAL MASTER RIVERA-SOTO: I hope not --

MR. C. PLACITELLA: No. We have no issue with

that. We have no issue with that --

SPECIAL MASTER RIVERA-SOTO: -- Judge Linares

has --

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MR. C. PLACITELLA: -- we are on the same page with

that.

SPECIAL MASTER RIVERA-SOTO: -- but if it's

reflected in the settlement, don't you think they get to

know that?

MR. C. PLACITELLA: They get the settlement

agreements with BASF. Absolutely, they get turned over or

Engelhard at the time. They get those. I believe that's

what the order is. What they don't get --

SPECIAL MASTER RIVERA-SOTO: I think you are giving

them the sleeves off your vest.

(Laughter)

MR. ASSAF: I think we might, your Honor --

SPECIAL MASTER RIVERA-SOTO: That's my point.

(Laughter)

Given you have this huge electronic database of

documents --

MR. C. PLACITELLA: -- that is kind of my point why

are we doing this. But what they don't get --

SPECIAL MASTER RIVERA-SOTO: Well, they are not

asking -- well, they're asking for settlements with

Engelhard, but also those other defendants.

MR. C. PLACITELLA: -- but what they don't get is

the settlement with Owen Corning Fiberglass. They were a

defendant in the underlying case. We don't get to

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relitigate that. Whatever they got in the underlying case

with Owen Corning Fiberglass, they can't ask Mr. Bevan about

his mental impressions for settling with Owen Corning

Fiberglass, if he could even remember them at this point.

Justice -- I mean, I keep calling him "Justice." I

keep trying to elevate him quickly.

But Chief Judge Linares is very clear. They get to

ask about the claims against BASF and why they were settled

or resolved, not the claims against Owen Corning Fiberglass,

not the claims against Fiberboard or whoever else it is.

He says, and he's very clear, this is the

circumscribed scope of discovery.

He never says, and you get to ask about all of the

other things. In fact, if you look back at the Third

Circuit, Judge Linares, over and over, and it keeps saying,

this is not about the relitigation of the underlying case,

bringing in settlements that are confidential entered into

the underlying case unrelated to BASF violates that exact

tenent. And there is a heightened standard of relevance

here that they must demonstrate, and they have not

demonstrated it.

I believe that they are entitled, and eventually

they're going to take Mr. Bevan's deposition, I assume,

they're entitled to ask him: Tell me everything you knew

about Engelhard talc. What was told to you, you know, what

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did you -- what went into that decision, why did you settle

it for what you did, why did you dismiss it, why did you not

oppose summary judgment.

I think they can ask him those questions.

What they can't ask him is: What about Owen

Corning Fiberglass?

What were your thought processes and what were your

communications with your clients as to why they should

accept that settlement?

One, it's likely going to be a fruitless exercise,

but two, that's exactly what Owen Corning Fiberglass

envisioned would never ever happen when they entered into

that agreement.

When they entered into a settlement agreement with

the plaintiff, they took the plaintiff at its word, and they

relied on the court system to hold those settlements

sacrosanct, and it's really incumbent I submit on the court

system to respect that agreement.

So, yes, they are entitled to the settlements and

the information related to BASF. They are not entitled, and

they're under confidentiality. They're contracts between

people blessed by courts. Lawyers had a right to rely upon

those representations. They had the right to expect that

that confidentiality would be respected, regardless of

whether Engelhard committed a fraud and hurt these

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plaintiffs.

Engelhard cannot get the benefit of their fraud

here. They dismissed these co-defendants by fraud. They

lost -- these people lost their rights by fraud. They can't

come in now and undue agreements that were entered in good

faith, not by fraud, because they say, oh, we get to hear

what happened.

Thank you, your Honor.

SPECIAL MASTER RIVERA-SOTO: You wrote on both

sides of that, though.

MR. ASSAF: I'm only using one, your Honor.

SPECIAL MASTER RIVERA-SOTO: Okay.

MR. ASSAF: To correct the record first, I think I

was correct. I didn't say it was Vanderbilt that settled.

It is Southern Talc. It's in our papers, and so if I was

wrong, I will correct the record. Southern Talc had the

asbestos in it and settled for $300.

And then a couple points, interestingly as a

threshold matter, and we're going to come back to this when

we have Mr. Bevan's deposition, but Mr. Placitella says it

will be a fruitless exercise because he won't remember,

quote, won't remember who settled for what and why, which is

exactly I think the water he's expected to carry in this

case about who settled what for why.

On confidentiality, your Honor --

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SPECIAL MASTER RIVERA-SOTO: That is an issue that

Mr. Placitella is going to have to deal with, because it is

his burden to prove it.

MR. ASSAF: Correct.

On confidentiality, your Honor, an (a) and a (b).

On (a), I'm learning. I may be slow on the uptake, but once

I figure it out, you're a fact record guy, and there is

nothing in this record, if you look at plaintiffs' brief,

Footnote 4, they say that while this information may have

been privileged at some point, it is the custom and practice

to maintain the confidentiality of it.

Mr. Placitella just talked about how there are

scores in confidentiality agreements and court orders, and,

your Honor, there's nothing attached to their brief.

There's nothing in the record, and the reason I remember

this is because we went back and forth because originally

their position was that there were court orders barring it.

And then they said, no, not court orders, it's

really the custom and practice of Ohio.

So in either event, your Honor, even if there were

a confidentiality agreement --

SPECIAL MASTER RIVERA-SOTO: But Footnote 4 cites

to no Ohio cases.

MR. ASSAF: Correct, and nothing in the record,

and so even if there were a confidentiality agreement, as

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your Honor well knows, that's exactly what Rules of Civil

Procedure are designed to address.

We have a protective order in the case. They can

mark it for attorneys' eyes only. And so, again, your

Honor, I come back to where we started, I don't know, around

11:15 to the hypothetical, how I'm ever going to get the

information regarding a plaintiff's damages and how he or

she has been compensated in order to test that both for an

expert class cert damage analysis and for the admissions in

the case.

If there are any questions, your Honor, I would be

happy to answer them.

MR. C. PLACITELLA: Just one short thought.

Mr. Weiner, who is not here, said that there was a

confidentiality agreement, and they were part of it, and

every settlement they entered into today is confidential.

But I guess from this point forward, they won't.

SPECIAL MASTER RIVERA-SOTO: Well, no. I don't --

because we have a discovery confidentiality order here, and

if they argue that it's confidential, their disclosure could

be --

MR. C. PLACITELLA: Your Honor --

SPECIAL MASTER RIVERA-SOTO: -- so I don't think

that one follows necessarily from the other.

But be that as it may, that issue is BASF's letter

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motion seeking discovery and documents, as well as

information from plaintiffs' decedents concerning

settlements in the underlying asbestos cases both with

Engelhard and other defendants. That motion will be granted

in part and denied in part.

To the extent that BASF is seeking settlement

agreements entered into by the representative plaintiffs,

they are to receive copies of all settlement agreements

entered into by the representative plaintiffs.

In respect that they are seeking settlement

agreements entered into by putative plaintiffs, they are to

receive only copies of the settlement agreements entered

into by BASF, no other ones.

If we get to that point and a class is certified

that exceeds the number of representative plaintiffs, then

BASF will be entitled to get the additional discovery from

all other class members.

Are we okay with that?

MR. ASSAF: Yes, your Honor.

MR. SOKOLOVE: Your Honor, could I ask a question

on that?

SPECIAL MASTER RIVERA-SOTO: Certainly.

MR. SOKOLOVE: With respect to the putative

plaintiffs, is that --

SPECIAL MASTER RIVERA-SOTO: To the extent that Mr.

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Placitella is looking at representative samples --

MR. SOKOLOVE: Of those 18?

SPECIAL MASTER RIVERA-SOTO: Right.

MR. SOKOLOVE: Thank you, your Honor.

SPECIAL MASTER RIVERA-SOTO: Your 18, his 30, and

somebody else's four.

MR. SOKOLOVE: I just wanted to make sure that that

wasn't suddenly broader than the smaller sub set.

SPECIAL MASTER RIVERA-SOTO: I wouldn't do that to

you, Mr. Sokolove.

MR. SOKOLOVE: Thank you, your Honor.

SPECIAL MASTER RIVERA-SOTO: The next motion is

plaintiffs' motion to compel documents from Johnson &

Johnson.

Before we go there, is there someone here from

McCarter?

MR. RIESTER: I am here.

SPECIAL MASTER RIVERA-SOTO: Oh, there you go. Now

you're going to have to come up.

Can you make room for counsel?

MR. RIESTER: I am here.

SPECIAL MASTER RIVERA-SOTO: Are you good?

MR. RIESTER: Yes, I'm good. I can go here. I'm

good.

SPECIAL MASTER RIVERA-SOTO: The next matter is

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plaintiffs' motion to compel documents from Johnson &

Johnson. It's ECF 268, 276, 290 and 293.

In ECF 268, plaintiffs seek documents from Johnson

& Johnson asserting that Engelhard purchased the Johnson

line from Johnson & Johnson, and that it's the Johnson line,

which is I think in Johnson, New York, right?

MR. COREN: Johnson, Vermont.

SPECIAL MASTER RIVERA-SOTO: Vermont, I'm sorry.

It's the one from which the Emtal talc came from.

They point out that William Ashton, who executed

the affidavit that was sent to everybody saying that the

Emtal talc did not contain asbestos, was a Johnson & Johnson

employee.

They say that Johnson & Johnson has refused to

respond to a subpoena that was issued by the plaintiffs, and

they request an order for disclosure of all documents

responsive to the January 4th, 2017 subpoena, and that

Johnson & Johnson be directed that only documents falling

within the discovery confidentiality order's boundaries for

confidential or attorneys' eyes only be so marked.

In opposition, Johnson & Johnson at ECF 276,

states that it is willing to comply, but that it needs a

different discovery confidentiality order, that they want

the limit disclosure pursuant to their proposal, that they

want limited disclosure only in this case, and they want a

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provision with respect to clawback with respect to common

interest documents.

At ECF 290, plaintiffs reply by saying that the

current discovery confidentiality order meets Johnson &

Johnson's concerns, and by way of sur-reply, which I hope

this is the last, at ECF 293, Johnson & Johnson states that

the changes they propose are modest and that plaintiffs have

provided no valid reason in opposition.

Mr. Placitella, is this yours or --

MR. C. PLACITELLA: It is the other Placitella.

SPECIAL MASTER RIVERA-SOTO: Mr. Placitella?

MR. J. PLACITELLA: Yes, your Honor.

Phyllis, Jared Placitella for the record.

Your Honor, I mean, I think the last one was a

simple issue and hopefully this one is even more so.

Like you said, there is a discovery confidentiality

order in this case.

SPECIAL MASTER RIVERA-SOTO: Let me ask you a

simple question.

MR. J. PLACITELLA: Sure.

SPECIAL MASTER RIVERA-SOTO: Do you have a problem

with the changes that have been proposed?

MR. J. PLACITELLA: I think they are excessive, and

I think they could put a burden on this litigation, and here

is why.

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Johnson & Johnson I think is maybe one of ten maybe

non parties that have been subpoenaed to this point, and if

each non party is going to require their own custom tailored

discovery confidentiality order, in order for them to

produce documents and make a party wait six months for those

documents until that discovery confidentiality order is

entered, that will really bring this litigation to a halt.

I think Johnson & Johnson's concerns are already

taken care of in the current order. I mean, Paragraph 3

specifically says: The confidential material shall be used

by the receiving party solely for the purposes of the

prosecution for defense of this action, being this case.

Paragraph 11 already has a clawback procedure for

privileged information.

I agree with Johnson & Johnson that the matter of

whether the common interest privilege applies to Johnson &

Johnson or it could seek protection under that doctrine,

it's not at issue. But its concerns about -- I just don't

see a need that the common interest privilege needs to be

specifically carved out when there is already a privilege

clawback provision.

So I don't see any prejudice to Johnson & Johnson

by the current discovery confidentiality order, and I think

it would be expedient to the litigation to have one

confidentiality order that governs both parties and non

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parties.

SPECIAL MASTER RIVERA-SOTO: Thank you.

Mr. Riester?

MR. RIESTER: Mr. Riester.

SPECIAL MASTER RIVERA-SOTO: Riester.

Well, I had two choices, and I picked the wrong

one.

MR. RIESTER: Well, I'm not related to Jennifer

Reister who came up earlier today, so she's an Ohio native.

(Laughter)

I mean, we had two very simple changes to the

protective order. We're a non party, and we are involved in

litigation with Placitella in other forms, so we are

particularly sensitive to those documents being produced to

those other forums. That is one of thee reasons why we

wanted those changes, and to be clear on the language, that

it was for this litigation in this case only in this matter.

SPECIAL MASTER RIVERA-SOTO: Doesn't it say that?

MR. RIESTER: You know, we tried to get that

assurance from plaintiffs' counsel multiple times, and I've

never heard them articulate it like they did today, and so

if they are going to abide by that --

SPECIAL MASTER RIVERA-SOTO: Well, what they did

articulate was the language of the discovery --

MR. RIESTER: Yes, they only --

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SPECIAL MASTER RIVERA-SOTO: -- which even I was

able to pull off of Pacer, so if I could do it, you can do

it.

MR. RIESTER: Yes.

SPECIAL MASTER RIVERA-SOTO: So if the scope of it

is being used only in this litigation, which quite frankly,

it's a fairly common provision, and in fact, I think it

might even be part of the form discovery confidentiality

order that is at Appendix S of our local rules. But even

putting that to the side, if that is taken care of, then

your other concern is of the clawback provision, and my

response to that is I can ask an obnoxious question, which I

will do only rhetorically.

MR. RIESTER: Okay.

SPECIAL MASTER RIVERA-SOTO: You are aware

obviously of RPC 4.4(b), which, of course, you're not.

But RPC 4.4(b) says that if documents are

inadvertently disclosed to somebody else, the recipient has

the obligation to immediately stop reviewing them and to

immediately return them.

And as you know, under the local rules of this

court, the New Jersey RPCs apply to conduct in this case --

in this court.

So aren't you taking -- if your concern is about

clawback of inadvertently disclosed documents, isn't that

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taken care of?

MR. RIESTER: I guess it is, your Honor.

I mean, I think that the small changes we have in

having a separate distinct order for our production, given

our history and other litigation involving the Placitella

firm is warranted, and I would ask that our order be entered

with its modest changes, but that's for your decision.

SPECIAL MASTER RIVERA-SOTO: Thank you.

MR. J. PLACITELLA: Very brief.

SPECIAL MASTER RIVERA-SOTO: Very brief is ten

seconds.

MR. J. PLACITELLA: Yes. I was looking for some

preemptive relief in other litigation that we are involved

in in State Court asbestos cases.

Johnson & Johnson under our protective order

designated all documents that are produced as confidential,

because it claimed that those documents came from its

confidential litigation files.

The only thing I would ask is that Johnson &

Johnson in this matter take a careful review to determine

which documents under Pansy and for what good cause actually

should be designated as confidential.

SPECIAL MASTER RIVERA-SOTO: Mr. Placitella, I

would extend to Mr. Riester the same courtesy I extend to

you, which is an expectation that counsel will act the way

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that counsel ought to act.

MR. J. PLACITELLA: Thank you, your Honor.

SPECIAL MASTER RIVERA-SOTO: At issue is ECF 268,

which is plaintiffs' motion to compel the production of

documents from Johnson & Johnson.

Johnson & Johnson's opposition is more technical

than substantive. It states that it is willing to comply,

but that they need a different discovery confidentiality

order.

The two issues that they raise is that they wanted

disclosure to be limited for use only in this case, and they

wanted a separate clawback provision that applied to

inadvertently disclosed documents.

Through the colloquy with counsel, it has become

clear that the discovery confidentiality order that was

entered in this case on March 20th, 2017 limits disclosure

to this case, and it is also clear from that discussion that

whatever clawback concerns Johnson & Johnson may have are

covered by RPC 4.4(b), and therefore are not at issue. For

that reason, the motion to compel is granted.

The last motion is BASF's motion compelling

additional documents and deposition testimony from

plaintiffs and sanctions for obstructive and inappropriate

conduct during the Wengerd deposition by Mr. Coren. That's

ECF 303 and 304, 312 and 318.

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Mr. Placitella, you are standing.

MR. C. PLACITELLA: Would you consider a

five-minute break?

SPECIAL MASTER RIVERA-SOTO: Yes.

MR. C. PLACITELLA: We had 15 minutes for lunch,

but this will only take five.

SPECIAL MASTER RIVERA-SOTO: Yes. Take your break.

MR. C. PLACITELLA: Thank you.

(Recess taken)

SPECIAL MASTER RIVERA-SOTO: Back on the record.

The next matter and the last motion of the day is

BASF's motion compelling additional documents and deposition

testimony from plaintiffs and for sanctions for obstructive

and inappropriate conduct. These are ECF 303, 304, 312, and

318.

In ECF 303, BASF asserts that the deposition of

plaintiff, Holley, H-o-l-l-e-y, occurred on April the 5th,

2017 without any meaningful objection. But the very next

day during the deposition of plaintiff, Wengerd,

W-e-n-g-e-r-d, that there were nearly 90 instructions not to

answer the very same questions that plaintiff Holley was

allowed to answer the day before. As a result, BASF

requests the following relief:

That they be allowed to reopen the Wengerd

deposition, that the objections that had been made be

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overruled and prohibited any further, and that sanctions

issue, and that plaintiffs collect, review and either

produce or log all relevant documents being held by the

named plaintiffs.

Under ECF 304, the Cahill defendants join, and they

ask for sanctions under Rule 30(d)(2), and that gave a smile

to Mr. Blatt's face.

In ECF 312, plaintiffs oppose the application

saying that the plaintiffs' decedents past asbestos cases

are not relevant, and that the motion for sanctions is

baseless, that BASF had failed to prove a discovery

violation must have sanctions, that retainer agreements do

exist and anyway are irrelevant that a rolling production of

documents does not equal sanctions, that the Holley

deposition does not support sanctions, but the objections

that were interposed were proper, that Wengerd's

understanding of the facts is understandable.

And I did understand that analogy that Wengerd's

understanding of the damages is really not relevant, that

Wengerd's understanding as to the Williams' case is not

relevant, and the time and the form of communication of

counsel needs to be addressed.

By way of reply, BASF says that the objections that

were interposed were frivolous, that the objections based on

Wengerd's own work product and mental impressions also are

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frivolous and more robustly expounds on its original motion.

This is BASF's application.

MR. ASSAF: Gene Assaf for BASF.

Your Honor, I would like to start off with another

one of your questions of Mr. Placitella, your questions

posed on damages. It has been a focus of mine over the last

several months, and it was a focus at the deposition, and I

am not going to spend a lot of time on scope because I

agree, apples and oranges.

Scope has now been decided, okay, but there were

improper instructions regardless of scope. And why I am

here is not to be punitive, but recently we got a letter and

a submission to your Honor in which plaintiffs' lawyer said

that the conduct at this deposition was, in their words, not

mine, wholly proper with one possible exception.

So, your Honor, rather than have this repeat

itself, I would like to just talk about the non scope

issues.

SPECIAL MASTER RIVERA-SOTO: Let me just help

everybody out here.

As I think you have gotten a sense already, I read

everything. I read both depositions, and I will tell you

candidly I am troubled by the conduct in the second

deposition, so maybe it makes a whole lot more sense if we

hear from Mr. Placitella at this point.

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MR. C. PLACITELLA: Thank you, your Honor.

Starting from your perspective that you had

concerns, that deposition was defended in good faith based

upon the law as Mr. Coren understood it at the time and the

facts.

SPECIAL MASTER RIVERA-SOTO: But I don't understand

how Mr. Coren made objections and instructed the witness not

to answer to questions that were for all intents and

purposes identical to questions that had been asked the day

before without objection and without an instruction not to

answer.

MR. C. PLACITELLA: Well, your Honor, frankly the

day before, I think there were a lot of questions asked that

he should have objected to.

SPECIAL MASTER RIVERA-SOTO: But he didn't.

MR. C. PLACITELLA: He didn't, but that doesn't

mean that the next day he can't go back that night and think

about the mistakes that he might have made because once --

if he doesn't make the objections that he thinks are

relevant and appropriate, an argument would be made by BASF

and maybe appropriately, that he had waived the ability to

make those objections especially on privilege.

So just because he went back to the hotel room that

night and frankly spoke to some of us, and the next day he

took a different position does not mean the position that he

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was taking was wrong.

I think Mr. Coren would tell you that if he had to

do the -- and I don't want to speak for him, but I am I

guess --

SPECIAL MASTER RIVERA-SOTO: You better.

MR. C. PLACITELLA: -- that he let a lot of

questions be asked the first day that could only be -- the

information could only be supplied by a lawyer were within

what he thought at the time outside the bounds of discovery.

If you recall, and I actually have the quote, we

didn't want these depositions to go forward, because we knew

the scope issue was still an issue, and we had a view of

what the Third Circuit had decided, and they had a different

view, and it was not on the same page, and we had

conversations about it and --

SPECIAL MASTER RIVERA-SOTO: I understand that --

MR. C. PLACITELLA: -- but this is what --

SPECIAL MASTER RIVERA-SOTO: -- but you still had

the deposition of Ms. Holley on the day before, on the 5th

of April, where questions were asked that resulted in no

objection, and then the same questions asked to a different

plaintiff the very next day, and you get not only

objections, but instructions not to answer.

In context, that I have to tell you, I am a little

confused about, because I don't understand how you have a

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lay person interpose a work product objection. That lay

person does not have a cognizable work product privilege.

MR. C. PLACITELLA: There were some articulations

of objections that if it wasn't under the heat of the moment

might have been articulated differently.

SPECIAL MASTER RIVERA-SOTO: A little less

elegantly?

MR. C. PLACITELLA: A little less elegantly.

Some of this frankly was a reaction, to be honest,

to pretty aggressive questioning of an elderly person over

issues that weren't relevant to this case, like where did

she keep her bank accounts, did her mother -- grandmother

have, you know, take the -- I mean, this was not a friendly

circum --

SPECIAL MASTER RIVERA-SOTO: But you see, the

answer to that is "Objection as to form."

MR. C. PLACITELLA: I understand.

SPECIAL MASTER RIVERA-SOTO: You know, those of us

who have done thousands of depositions --

MR. C. PLACITELLA: I am painting the flavor for

what was going on --

SPECIAL MASTER RIVERA-SOTO: -- but, Mr.

Placitella, you and I have been, not together, but I am sure

that you have been in depositions, where things get a little

heated. Lawyers act in not the manner in which we would

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like them to act.

That doesn't change the rules. The rules are still

objections, except as to privilege, are waived until the

time of trial. So the only objection that you could make --

there are only two objections that you can make. Objection

as to form, to which the witness still must answer, and

objection as to privilege and an instruction not to answer,

and you have to give the basis for it.

You don't have to give the basis for an objection

to form. It could be anything, but you do have to give a

basis for the objection as to privilege, and particularly if

you are going to instruct the witness not to answer.

The difficulty that I have is I am sure that there

were frustrated people in that deposition. I have no doubt

about that, and I think there were frustrated people on both

sides.

One of the things that I always tell people is that

when you read a transcript, and it says "I object," you read

it, and it says "I object," but you weren't in the courtroom

when the person jumped to his feet and at the top of their

lungs, they yelled, "I object." That doesn't come across in

the transcript, but there is enough that is in this

transcript that it came across to me as telling me something

went badly askew here --

MR. C. PLACITELLA: Well, Your Honor, so --

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SPECIAL MASTER RIVERA-SOTO: -- and let me make

myself clear.

I am not blaming Mr. Coren, and I am not putting

any blame on anybody. I have nothing but the utmost respect

for all of the lawyers who are involved in this case. Some

of them I know from before; some of them I don't.

Mr. Coren is in the category of folks that I don't

know from before, but I know of your law firm, and I know

the respect in which your law firm is held, and you are

entitled to all of that from me --

MR. C. PLACITELLA: I appreciate that --

SPECIAL MASTER RIVERA-SOTO: -- until proven wrong,

so, you know --

MR. C. PLACITELLA: -- I appreciate that, your

Honor, and I have to tell you that probably if Mr. Coren

just did the deposition the next day and never spoke to me,

Holley might have gone, the Wengerd might have gone exactly

the same way.

SPECIAL MASTER RIVERA-SOTO: So it is your fault.

MR. C. PLACITELLA: It's my fault. It's my fault,

because when we discussed the parameters of what happened in

the Holley deposition, it was my conclusion that there were

a lot of questions that were not proper, that were way

beyond the relevance as we read the law, and that the only

way many of those questions could ever been answered, many,

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you know, you could say there were 90 questions, but I bet

you I can count 70, where the only way that question could

be answered was through the information obtained through us,

and from our perspective, that is privileged.

There were a lot of questions, frankly, that we

just thought were way out of bounds. Some were way, way out

of bounds, but --

SPECIAL MASTER RIVERA-SOTO: I hope when you say

that you thought were privileged, that is before Chief Judge

Linares' August 3rd opinion.

MR. C. PLACITELLA: Well, yes, because what

happened was, and BASF -- actually Judge Dickson at the

conference that objection -- he expected there was going to

be an objection to a whole host of issues at the

depositions, and what the scope is of any of the discovery

as to relevancy, and we might as well take the deposition

and tee it up, so we can come back here.

Everybody knew there was an issue going into that,

and what Mr. Coren did is he read the decision of the Third

Circuit, and he acted with respect to the Wengerd

deposition, after consulting with me to be openly and honest

about it, and he acted zealously in representing his client

under the Lobiondo case, and then we got direction from

Judge Linares, and frankly, if we had that opinion first, a

lot of those objections would have gone a different way, and

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the deposition may have gone a different way.

But I have to say that when we are doing these

depositions, there is a kind way to do them and a not so

kind way to do them. And putting, you know, older people on

the spot about what they understand of the damages for

fraudulent concealment, when we were still debating them

here, is not a very kind way --

SPECIAL MASTER RIVERA-SOTO: It may have not be

kind, but it is perfectly appropriate.

MR. C. PLACITELLA: Okay.

So we believe that most of the objections, and

there were a couple I went back and looked at them that I

might have done differently, to be honest, but there's

some --

SPECIAL MASTER RIVERA-SOTO: I think we all can do

that in respect to any transcript we look at. "My goodness,

why did I say that."

MR. C. PLACITELLA: -- but frankly, I think Mr.

Coren was reacting to my reaction about what I heard

happened in the Holley deposition based on our reading of

the law, and he was zealous, you know, after that

conversation.

SPECIAL MASTER RIVERA-SOTO: So how do we fix this?

MR. C. PLACITELLA: We fix it by, if they want to

ask Mrs. Wengerd real questions, a list of relevant

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information, they can do that, and they are going to go back

out to Ohio --

SPECIAL MASTER RIVERA-SOTO: I don't know what that

means.

MR. C. PLACITELLA: Well, depositions that

aren't -- I mean, questions that aren't really protected. I

mean, there were some questions about the retainer between

lawyer and client, I think that is privileged, and I guess,

but there are questions based on what Judge Linares said and

reading Rule 26, that they would probably get to answer now.

So when they go back out to take another one of the

class representative's depositions, we will make

arrangements, and if they want to ask questions that they

should legitimately ask, we will make her available on the

very same day, no extra trip for anybody else, and that is

how I see it.

SPECIAL MASTER RIVERA-SOTO: This is what we are

going to do.

Mr. Assaf wants to speak.

MR. ASSAF: Your Honor, I know it is late. I am

sorry, and I know you asked me to sit down, but --

SPECIAL MASTER RIVERA-SOTO: You don't look sorry.

(Laughter)

MR. ASSAF: Well, I am a little upset because, one,

I totally disagree with the characterization of the flavor

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of this deposition. And, your Honor, I will forward to you

the DVD of these depositions, and I ask you to randomly pick

out sections of that them and watch them.

I have been doing for this almost 30 years, and

after my deposition of Mrs. Holley, she thanked me. We

chatted. It was perfectly appropriate. And I have been in

some tough, tough fire fights. This was not one of them.

Then with respect to Ms. Wengerd, I listened in for

the deposition, and by the way, she is not even, and it

won't matter, but Mr. Placitella just said she is an elderly

woman who came into the dep.

She is a 45-year-old woman, a very nice woman. She

is not an elderly woman. She is 45, and she was very

engaged, and so, your Honor --

SPECIAL MASTER RIVERA-SOTO: If you told my wife at

age 45 that she was elderly, you would be in big trouble. I

just want you to know that. She is Irish Catholic, so it is

big trouble.

(Laughter)

MR. ASSAF: -- I would ask that you --

MR. C. PLACITELLA: Do it to his wife and see what

happens.

MR. ASSAF: -- pick any portion --

SPECIAL MASTER RIVERA-SOTO: We will strike that

from the record. He doesn't need to be in any more trouble

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than he is right now.

(Laughter)

MR. ASSAF: I would pick any portion of those

depositions, okay, and I stake my reputation on this, okay?

You watch those, and I did a classic

cross-examination for trial purposes that would be shown to

a jury, because it might be shown to a jury, so I don't

appreciate the notion that I was in there browbeating some

elderly woman. That didn't happen --

SPECIAL MASTER RIVERA-SOTO: I don't think --

well --

MR. ASSAF: -- and neither was Mr. Farrell.

SPECIAL MASTER RIVERA-SOTO: -- well, I read both

of the depositions. I didn't get the sense that any of the

questions by defendants were anything close to browbeating.

But, again, I wasn't there.

But be that as it may, I don't think that watching

the video is going to be all that helpful in light of the

potential resolution I think of this motion.

MR. ASSAF: Well, I also want to clarify, your

Honor, that Mr. Placitella just got up here and said, well,

with all the Linares -- you know, now we have clarity. It

was all about the Linares' scope objection.

That is not it, your Honor. You read our briefs,

okay, but these are very basic Federal Court practitioner

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issues, okay?

Do you have these letters?

Do you have documents?

Instruction not to answer. It has no relevance

whatsoever.

That is not a Linares' issue whether you have

documents in your possession.

SPECIAL MASTER RIVERA-SOTO: You can't make an

instruction not to answer based on relevance.

MR. ASSAF: Correct.

SPECIAL MASTER RIVERA-SOTO: Okay. Let's just get

there, which is one of the things that I found troublesome.

You can instruct not to answer based on privilege,

nothing else --

MR. ASSAF: Correct.

So, your Honor, again --

SPECIAL MASTER RIVERA-SOTO: -- and I know Mr.

Coren knows that. I know that in my heart of hearts, which

tells me that something else was at play here, but I don't

want to -- I can't undo what has been done, okay?

What I want to be able to do is to come up with

something that fixes what has been done.

Let me ask you the question that I asked Mr.

Placitella. What do you want me to do?

MR. ASSAF: Well, I think there are two things that

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you can do, your Honor, and the reason I said I am not doing

this for punitive purposes is this class rep issue. I think

they are down to a couple, okay?

I don't think that this class rep should now,

having sat through a mock deposition, should now come in.

She has been through it all. She's going to come in. She

will re-read it again, and they'll say: Remember when he

asked you that, now here is how you answer that.

That's not fair at all. It's not fair for the jury

at all to hear that, so I think she should be --

SPECIAL MASTER RIVERA-SOTO: I can address that.

MR. ASSAF: -- stricken, or if they want to try to

use her, I think at a minimum, your Honor, I am not asking

for fees, but they need to pay the expenses of the

videographer and the expenses of the travel out there. I

don't want to have to rush in this deposition, okay? I

don't want to tack it on to another deposition.

They should pay the expenses. I am not asking for

fees, but they need to pay for the deposition, because what

you are hearing today, oh, it was all in the heat of the

moment, we are going to continue this way, okay?

I think the message of Clifton Precision in 1993 to

today within this Circuit is that you don't ask. You don't

say move on, objection.

That is not permitted.

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This is class counsel that eventually may come here

to this Court and say we're sophisticated class counsel, we

want millions of dollars for this case, and you should pay

us.

So it's no answer to say, we don't actually know

the rules, and we don't abide by them.

If this were me, your Honor, I think the Court

would come down hard, and there shouldn't be a double

standard, so I think we should just strike this witness or

give us the expenses.

MR. C. PLACITELLA: Your Honor, it would be unfair

to strike the witness who had gone through all of this --

SPECIAL MASTER RIVERA-SOTO: That is not going to

happen.

Next?

MR. C. PLACITELLA: I believe that if they want to

take her deposition and ask her supplemental questions, we

will make her available.

If they really want the cost of the videographer,

that's really what -- fine --

SPECIAL MASTER RIVERA-SOTO: He is asking for the

cost of the videographer as well as the transportation

costs.

MR. C. PLACITELLA: I think that is a little over

the top given the fact that they are going to have to go

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back out there anyhow and take other class representative

depositions, but I understand your concerns. It's frankly

on me.

I will apologize to the Court, if you think that it

was wayward --

SPECIAL MASTER RIVERA-SOTO: No apology is

necessary.

MR. C. PLACITELLA: -- but we did at a point

believe as lawyers it was the right thing to do given the

circumstances and the posture of the case.

Things have changed now. The rules are different.

The law is different. There is a lot of clarity and, you

know, we will do that accordingly.

SPECIAL MASTER RIVERA-SOTO: Thank you.

At issue is a motion under ECF 303, a motion by

BASF to compel additional documents and deposition testimony

from the plaintiffs and for sanctions. That motion will be

granted in part and denied in part.

In respect to the motion being granted, BASF will

be entitled to redepose representative plaintiff Wengerd.

Before that happens, Mr. Placitella, you are to

look through the transcript of the Wengerd deposition and

every single objection and every single instruction not to

answer, and you are going to let Mr. Assaf know which one of

those objections you intend to continue to press.

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If he disagrees with you, you are to bring those to

me, and I will make a decision as to whether the question is

proper or not.

But the burden first falls upon you, Mr.

Placitella. Otherwise, Mr. Assaf or Mr. Farrell, whoever

takes that deposition will be entitled to ask each and every

question to which an objection or an instruction not to

answer was interposed. That is step one.

Step two: Ms. Wengerd will be made available for

an additional deposition at the convenience of counsel for

BASF. I know counsel from BASF are professional. They will

try to make it also convenient to counsel for plaintiff, but

the overriding concern here is the convenience of counsel

for BASF.

To the extent that BASF has asked for the cost of

the videographer, as well as the transportation costs, that

is denied without prejudice.

If the second deposition proves to be difficult,

then you can bring it back up.

With that said, Ms. Wengerd is to be considered as

if she were still at the deposition. That means you may not

talk to her about her testimony. You may not go over her

questions and answers with her. If you have sent her a copy

of the transcript, you are to retrieve it immediately. It

is to be addressed as if there was a short recess during the

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deposition, at which time you would not be allowed to talk

to her about her testimony as you well know.

That is the way this is going to be treated, so no

one is to talk to her about her testimony on the plaintiffs'

side. And if I hear that there is a problem with that, then

I will impose sanctions. But it is to be treated as if this

was just a five-minute break in that original deposition.

It is not an opportunity to get her any more informed or any

better educated about the questions that were asked. You

can talk to her about scheduling. That is it.

MR. C. PLACITELLA: Are we allowed to tell her what

your Honor ruled?

SPECIAL MASTER RIVERA-SOTO: You can tell her that

I instructed you were not to talk to her about her

testimony, which, Mr. Placitella, as you well know, would be

the rule in any deposition anyway. So there should be no

advantage taken over the fact this deposition was taken on

April 5th or April 6th, and we are now at the end of

October.

The request for sanctions is denied, but again

without prejudice.

Mr. Coren, I have nothing but the utmost respect

for you, and there but for the grace of God go all of us. I

understand your reaction. I wish it hadn't happened, and

hopefully it will not happen again, at least not in this

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case.

MR. COREN: Thank you, your Honor.

SPECIAL MASTER RIVERA-SOTO: Thank you.

Is there anything else we need to address in

respect to this motion?

Okay. Our court reporter needs to leave in five

minutes, so what I am going to propose is that we do our

scheduling conference off the record, and I will then reduce

that to a scheduling order.

We also have a hard stop here at six o'clock

because Judge Dickson needs the courtroom for a class that

he teaches.

(Counsel confers)

MR. C. PLACITELLA: Never mind.

SPECIAL MASTER RIVERA-SOTO: Okay, we're good?

MR. C. PLACITELLA: Yes.

SPECIAL MASTER RIVERA-SOTO: Thank you very much.

(The matter concluded at 5:15 p.m. and a discussion

was held off the record)

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