One Newark Center, 19th Floor

Newark, New Jersey 07102

Tel: 973.690.5400 Fax: 973.466.2761 

www.rwmlegal.com

February 21, 2018

VIA ECF

The Honorable Roberto A. Rivera-Soto

Ballard Spahr LLP

210 Lake Drive East, Suite 200

Cherry Hill, New Jersey 08002

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

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

Dear Justice Rivera-Soto:

As the parties have informed the Court, plaintiffs have agreed to withdraw 

most of their motion for reconsideration and will allow BASF to conduct much of 

the questioning to which plaintiffs previously objected and sought reconsideration. 

See 2/20/18 H. Roth Email to SDM. Plaintiffs have now expressly agreed, consistent 

with the Court’s previous Orders, that: (i) “communications regarding facts with 

Bevan are discoverable”; (ii) “[d]eposition questions regarding damages” and 

“knowledge of settlement” offers are appropriate; and (iii) deposition questions on 

plaintiffs’ document retention efforts are also appropriate, including specifically 

“whether [plaintiffs] were told to preserve documents.” Id. 

In light of these acknowledgements by plaintiffs, the only remaining disputes 

at issue here relate to plaintiffs’ objections 9 and 22 (and, depending on how they 

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The Honorable Roberto A. Rivera-Soto

February 21, 2018

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are interpreted, possibly objections 1 and 5), all of which address Ms. Wengerd’s 

communications with her current and former counsel regarding the Williams

litigation.1

 As already conveyed to plaintiffs’ counsel, BASF agrees (and has not 

disputed) that the attorney-client privilege protects Ms. Wengerd’s communications 

with her current counsel of record at Cohen, Placitella & Roth regarding plaintiffs’ 

legal strategy in this case. The key area of disagreement, however, is whether the 

privilege applies with respect to Mr. Bevan and his communications with Ms. 

Wengerd, including communications with Ms. Wengerd in which both Mr. Bevan 

and Cohen, Placitella & Roth were present. 

Before turning to the merits of this issue, it bears emphasis that plaintiffs fail 

to meet the standards governing reconsideration. Plaintiffs identify no new facts or 

any change in the law. On February 9, 2018, and pursuant to the Court’s October 

27, 2017 Order, plaintiffs submitted a list of objections from Ms. Wengerd’s April 

2017 deposition that they believed were proper. Plaintiffs at that time had the benefit 

of full briefing on the waiver and the sanctions issues, as well as Chief Judge 

Linares’s August 3, 2017 Opinion, Your Honor’s October 27, 2017 Order, and Your 

 1 Plaintiffs’ acknowledgment that BASF’s questioning on damages, settlement 

efforts, and document preservation is proper eliminates any dispute regarding 

plaintiffs’ objections 2, 4, 7, 8, 12, 15, 16, 20, 21, 23.

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The Honorable Roberto A. Rivera-Soto

February 21, 2018

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Honor’s colloquies with counsel regarding these issues at several hearings over the 

last four months. 

There was no ambiguity in any of the Court’s past pronouncements regarding 

Mr. Bevan’s role as fact witness. Indeed, plaintiffs themselves have continued to 

emphasize to the Court that Mr. Bevan is the critical fact witness for their case. See, 

e.g., 1/15/18 Hr’g Tr. 132:5-13 (noting that the named plaintiffs have no personal 

knowledge of the underlying claims, but that BASF is “going to have a chance to 

depose Mr. Bevan or other counsel”); see also id. at 153:1-3 (noting that “[t]he 

person to whom Mr. Bevan would have given advice in these cases is dead”); 1/29/18 

K. Williams Suppl. Resp. to BASF Interrog. No. 12, Set 1 (“My attorneys from the 

Underlying Case [i.e., the Bevan Firm] may have more information responsive to 

this request.”).

Plaintiffs’ short 2-page submission on February 9, 2018, which attempted to 

justify plaintiffs’ deposition objections, contained essentially no reasoning. BASF 

responded on February 12, 2018 with a 14-page letter brief and accompanying chart

showing in detail why plaintiffs’ objections could not stand under Chief Judge 

Linares’s August 3, 2017 Opinion and Your Honor’s October 27, 2017 Order. Two 

days later, this Court issued an Order requiring Ms. Wengerd to answer all of the 

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The Honorable Roberto A. Rivera-Soto

February 21, 2018

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disputed questions, warning that “any failure to abide by the terms of this order shall 

be punishable as contempt.” 2/14/18 Order (ECF No. 434). 

Plaintiffs’ motion for reconsideration merely seeks to reargue points that 

plaintiffs have argued unsuccessfully many times before. It should therefore be 

denied. As Your Honor recognized: “Plaintiffs' reconsideration motion is now a 

third bite of this apple; it is time to move on from this point and to address the more 

pressing, substantive issues that beg attention.” 2/18/18 SDM E-mail to H. Roth and 

P. Farrell. Under the circumstances, plaintiffs have no basis to request 

reconsideration of the Court’s order.

The Court can also easily dispose of plaintiffs’ remaining objections on the 

merits. Attached as Appendix A is a list of the four remaining objections at issue, 

along with BASF’s specific responses to each objection. As BASF has previously 

explained, plaintiffs are openly relying on Mr. Bevan as a fact witness to support 

key elements of their case. Indeed, plaintiffs’ counsel has emphasized that the named 

plaintiffs know very little, and what information they have will necessarily come 

from Mr. Bevan. See 1/15/18 Hr’g Tr. 132:5-13 (noting that the named plaintiffs 

have no personal knowledge of the underlying claims, but that BASF is “going to 

have a chance to depose Mr. Bevan or other counsel”). Mr. Bevan is thus the critical 

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February 21, 2018

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fact witness for plaintiffs’ case. The Court has already ruled that there is a waiver of 

the attorney-client privilege between the named plaintiffs and their former counsel

(i.e., Mr. Bevan) in the underlying cases. Indeed, as Your Honor has indicated, if 

Mr. Bevan “has information, that is information that is in the possession, custody, or 

control of the plaintiffs” and must be produced. Id. at 150:2-5. 

Because Mr. Bevan is a critical fact witness, Ms. Wengerd can no longer claim 

privilege over her communications with him, regardless of the subject matter. 2

 

Plaintiffs cannot have it both ways with respect to Mr. Bevan’s testimony. If 

plaintiffs intend to use Mr. Bevan’s testimony to support their case—as plaintiffs 

claim will be necessary—they cannot then block BASF from taking discovery on 

what Mr. Bevan told the plaintiffs. Thus, objection 1—which focuses on what the 

witness and Mr. Bevan spoke about before the deposition—should be overruled 

 

2

 One of the named class representative, Ms. Holley, previously testified—prior to 

this Court’s ruling on waiver—that she had discussed the facts of her case with Mr. 

Bevan. Today at her continued deposition, Ms. Holley testified that she has not 

discussed the case with Mr. Bevan at all over the last 7 years, and thus cannot supply 

any information about what Mr. Bevan told her. Ms. Holley now says that, when 

she earlier testified Mr. Bevan told her certain information, she was mistaken and 

that those communications must have been with Mr. Coren or Mr. Placitella (and are 

thus privileged). Whatever Ms. Holley’s current recollection, it is clear that Mr. 

Bevan has provided factual information to plaintiffs’ current counsel (including, 

perhaps, in the presence of the class representatives).

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February 21, 2018

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because the conversations between the witness and Mr. Bevan regarding the facts 

are clearly discoverable.3

 Objection 5 should also be overruled because the witness 

was being asked about when she first learned about “facts” from Mr. Bevan. 

Objection 9 should also be overruled because the witness was being asked for the 

names of other potential fact witnesses. 

To the extent that there are other issues regarding privilege, there is no reason 

for the Court to rule beyond the questions presented and issue an advisory opinion. 

This Court has already ruled that 18 of plaintiffs’ 24 renewed objections are 

improper. To the extent that plaintiffs are concerned about permutations of BASF’s 

questioning, it is best to address those concerns in the context of the questions that 

arise, based on the rulings and guidance this Court has already provided.

 3 Plaintiffs have also continued to block BASF’s discovery into documents from the 

Bevan Firm. After making repeated inquiries on the issue, BASF received a 

supplemental production of e-mails from the Bevan Firm on February 20, 2018. 

However, many of those e-mails were redacted (purportedly for privilege) either in 

full or in substantial part. Plaintiffs’ redactions seem to ignore Your Honor’s and 

Chief Judge Linares’s rulings on plaintiffs’ privilege waiver with respect to the 

Bevan Firm. Plaintiffs did not provide a privilege log with their production, and 

BASF understands that plaintiffs have not yet produced the redacted and withheld 

documents to Your Honor for review. BASF asks that these documents be produced 

to Your Honor immediately, along with an appropriate privilege log. 

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February 21, 2018

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Finally, Given the Court’s directive that violation of its February 14, 2018 

order will subject plaintiffs to sanctions, plaintiffs have proposed the entry of an 

order under Federal Rule of Evidence 502(d) to permit Ms. Wengerd (and other class 

representatives) to answer deposition questions without waiver of any remaining 

applicable privilege. While BASF disagrees with plaintiffs that any privilege still 

applies, BASF does not object to the entry of a Rule 502(d) order as a temporary 

solution to the situation. Inasmuch as plaintiffs are willing to agree to a consensual 

disclosure of potentially privileged information, Rule 502(d) may provide an 

appropriate mechanism for the temporary protection of this information. Any such 

protection should cease to apply, however, if the Court ultimately determines that 

the information is not privileged or a privilege waiver applies.

For the reasons set forth above, as well as those in BASF’s letter of February 

12, 2018, the Court should deny plaintiffs’ motion for reconsideration with respect 

to the remaining four objections (1, 5, 9 and 22), as well as any other objections that 

the Court deems still at issue.

Respectfully Submitted, 

s/ Justin T. Quinn

 Justin T. Quinn

Counsel for BASF Catalysts LLC

cc: All counsel of record (via ECF)

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