UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KIMBERLEE WILLIAMS, individually, as personal 

representative of the Estate of Charles L. Williams, 

deceased on behalf of said estate, and as representative of 

others similarly situated; NANCY PEASE, individually, as 

personal representative of the Estate of William Clark, 

deceased on behalf of said estate, and as representative of 

others similarly situated; MARILYN L. HOLLEY, as 

personal representative of the Estate of Kathryn Darnell, 

deceased on behalf of said estate, and as representative of 

others similarly situated; DONNA WARE, individually as 

personal representative of the Estate of Ralph Ware, 

deceased on behalf of said estate, and as representative of 

others similarly situated; and DONNETTE WENGERD, 

individually, as personal representative of the Estate of 

Jennifer Graham, deceased on behalf of said estate, and as 

representative of others similarly situated, and ROSANNE 

CHERNICK, individually, as personal representative of 

the Estate of Steven Chernick, deceased on behalf of said 

estate, and as representative of others similarly situated,

Plaintiffs,

v.

BASF CATALYSTS LLC, CAHILL GORDON & 

REINDEL LLP, CAHILL GORDON & REINDEL, a 

partnership including a professional corporation, 

THOMAS D. HALKET, ARTHUR A. DORNBUSCH 

II, GLEN HEMSTOCK, HOWARD G. SLOANE 

(A/K/A “PETER SLOANE”), IRA J. DEMBROW, 

JOHN DOE BUSINESS ENTITIES 1 to 100; JOHN 

DOE BUSINESS ENTITIES 101 to 200; JOHN DOE 

LAWYERS 1 to 500; and, JOHN DOE 1 to 500,

Defendants.

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No. 11-cv-1754 (JLL) (JAD)

CIVIL ACTION

DEFENDANT BASF CATALYSTS LLC’S 

OPPOSITION TO PLAINTIFFS’ 

MOTION TO COMPEL FURTHER 

RESPONSES TO INTERROGATORIES 

[ECF NO. 516]

Eugene F. Assaf, P.C. (pro hac vice)

Michael F. Williams

Daniel A. Bress (pro hac vice)

Peter A. Farrell (pro hac vice)

KIRKLAND & ELLIS LLP

655 15th St., N.W.

Washington, D.C. 20005

Phone: (202) 879-5000

Facsimile: (202) 879-5200

Justin T. Quinn

Robinson Miller LLC

One Newark Center, 19th Floor

Newark, New Jersey 07102

Phone: (973) 690-5400

Facsimile: (973) 466-2760

Counsel for Defendant BASF Catalysts LLC

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TABLE OF CONTENTS

Page

INTRODUCTION .....................................................................................................1

A. Plaintiffs’ First and Second Sets of Interrogatories ..............................2

B. Plaintiffs’ Third Set of Interrogatories..................................................6

C. BASF’s Objections and Meet and Confer Efforts ..............................11

ARGUMENT...........................................................................................................13

I. PLAINTIFFS’ THIRD SET OF INTERROGATORIES

EXCEEDS THE 25-INTERROGATORY LIMIT........................................13

II. INTERROGATORIES NOS. 9, 10, AND 11 CALL FOR 

INFORMATION THAT IS IRRELEVANT OR THAT 

PLAINTIFFS HAD AMPLE OPPORTUNITY TO DEVELOP ..................17

III. INTERROGATORIES 9, 10, AND 11 ARE UNDULY

BURDENSOME............................................................................................23

CONCLUSION........................................................................................................26

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TABLE OF AUTHORITIES

Page(s)

Cases

Avago Techs. U.S., Inc v. IPtronics Inc,

309 F.R.D. 294 (E.D. Pa. 2015)..........................................................................21

Doe v. Methacton Sch. Dist.,

164 F.R.D. 175 (E.D. Pa. 1995)..........................................................................21

Eisai Inc. v. Sanofi-Aventis U.S., LLC,

2012 WL 628320 (D.N.J. Feb. 27, 2012)...........................................................22

Engage Healthcare Commc’ns, LLC v. Intellisphere, LLC,

2017 WL 2371834 (D.N.J. Feb. 10, 2017).........................................................14

Kimberly-Clark Worldwide, Inc. v. First Quality Baby Prod., LLC,

2011 WL 13199148 (M.D. Pa. Dec. 21, 2011) ..................................................20

Kleinman v. Merck & Co.,

8 A.3d 851 (N.J. Law Div. 2009) .......................................................................20

Knit With v. Knitting Fever, Inc.,

2010 WL 11474937 (E.D. Pa. Jan. 22, 2010).....................................................14

Kokesh v. S.E.C.,

137 S. Ct. 1635 (2017)........................................................................................20

Makaeff v. Trump Univ., LLC,

2014 WL 3490356 (S.D. Cal. July 11, 2014).....................................................17

Nat’l Union Fire Ins. Co. of Pittsburgh v. Becton, Dickinson & Co.,

2018 WL 627378 (D.N.J. Jan. 30, 2018)............................................................18

Pulchalski v. Franklin Cty.,

2017 WL 57143 (M.D. Pa. Jan. 5, 2017)......................................................14, 15

Rosenblit v. Zimmerman,

766 A.2d 749 (N.J. 2001) ...................................................................................19

S.E.C. v. Teo,

746 F.3d 90 (3d Cir. 2014) .................................................................................20

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Tartaglia v. UBS PaineWebber Inc.,

961 A.2d 1167 (N.J. 2008) .................................................................................19

Travillion v. Allegheny Cty. Bureau of Corr.,

2009 WL 1457720 (W.D. Pa. May 22, 2009) ....................................................21

Trevino v. ACB American, Inc.,

232 F.R.D. 612 (N.D. Cal. 2006)........................................................................17

Waterbury v. Scribner,

2008 WL 2018432 (E.D. Cal. May 8, 2008)......................................................15

Williams v. BASF Catalysts LLC,

765 F.3d 306 (3d Cir. 2014) ...............................................................................19

Younes v. 7-Eleven, Inc.,

2015 WL 12843883 (D.N.J. Aug. 19, 2015) ......................................................22

Rules

Fed. R. Civ. P. 26...............................................................................................18, 22

Fed. R. Civ. P. 33(a).................................................................................................13

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INTRODUCTION

BASF opposes plaintiffs’ motion to compel further responses to 

Interrogatories 9, 10, and 11 in plaintiffs’ Third Set of Interrogatories. ECF No. 516. 

Those three interrogatories each call for extensive information about past legal fees 

and claims in thousands of cases spanning 1979 to 2017. And they in each case 

require BASF to prepare discrete calculations for massive grids spanning decades. 

The grid in Interrogatory No. 9 alone, for example, calls for 234 independent 

calculations.

It is hard to know where to begin in explaining why these three interrogatories 

are so improper, and why plaintiffs’ motion to compel should thus be denied. 

Plaintiffs have vastly exceeded their 25-interrogatory limit, and plaintiffs’ motion 

can be denied on that basis alone. The interrogatories also call for information that 

is either not relevant to this case, such as itemized calculations of the amounts of 

legal fees Engelhard and BASF paid, including since 2009, when plaintiffs’ counsel 

first raised the fraud allegations at issue here. The interrogatories otherwise call for 

information about past settlements that either does not exist, is not readily accessible, 

or that plaintiffs could attempt to prepare themselves.

Although plaintiffs claim BASF has at the ready the information they are 

requesting, plaintiffs offer no record support for that assertion, and it is untrue. What 

is really going on here is that, years into this case, plaintiffs did nothing to build a 

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record on damages and are now asking BASF to do their work for them, even as 

much of the information requested has no plausible connection to any permissible 

damages theory. It only adds to the prejudice that plaintiffs substantially delayed in 

moving to compel this information and are only doing so now, in the twilight of the 

discovery period. Plaintiffs’ motion is improper, prejudicial, and should be denied.

BACKGROUND

A. Plaintiffs’ First and Second Sets of Interrogatories

Plaintiffs motion to compel responses to their Third Set of Interrogatories 

leaves out important background information, namely, plaintiffs’ First and Second 

Set of Interrogatories. Ex. A (10/23/15 Pls.’ Interrogs., Set 1); Ex. B (1/22/18 Pls.’ 

Interrogs., Set 2). Under this Court’s Scheduling Order, 10/17/16 Order (ECF No. 

221), each party was allowed 25 additional interrogatories following entry of the 

scheduling order. That limitation was imposed against the backdrop of Federal Rule 

of Civil Procedure 33(a), which provides a default limit of 25 interrogatories. 

Plaintiffs had already served a first set of interrogatories prior to entry of the 

scheduling order and served a second set shortly afterward. Collectively, plaintiffs’ 

first two sets of interrogatories—which were all served on behalf of all plaintiffs—

contained 21 interrogatories, although with subparts and other requests, the number 

was vastly higher, as discussed below. Indeed, the Second Set of Interrogatories

itself exceeded the 25-interrogatory limit.

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In both their First and Second Sets of Interrogatories, plaintiffs requested 

information about past Emtal talc settlements, fees, and claims. See, e.g., Ex. A 

(10/23/15 Pls.’ Interrogs., Set 1, Nos. 2, 6, 17). On December 23, 2016, BASF 

served extensive responses to Plaintiffs’ First Set of Interrogatories, Ex. C (12/23/16 

BASF Resps. to Pls.’ Interrogs., Set 1), including by referencing and providing the 

Cahill database, which Cahill had prepared while it was defending Emtal-related 

cases. Plaintiffs had asked BASF to provide the amounts of fees it had paid Cahill, 

but BASF objected to this as irrelevant and unduly burdensome. (12/23/16 BASF 

Resps. to Pls.’ Interrogs., Set 1, Resp. to No. 17). Plaintiffs never moved to compel 

on any of these responses.

On January 18, 2018, plaintiffs served a Second Set of Interrogatories that 

also requested extensive information about past cases and settlements. Ex. B 

(1/22/18 Pls.’ Interrogs., Set 2). For example, plaintiffs’ first interrogatory in their 

Second Set requested the following:

INTERROGATORY NO. 1: 

Please identify all settlements You entered into between January 1, 

1983 and December 31, 2009, inclusive, where the plaintiff or claimant 

(or his/her personal representative) claimed an injury due to alleged 

exposure to EMTAL talc. For each such settlement please include in 

your answer:

a. The asbestos related disease the plaintiff or claimant alleged he or 

she suffered from; 

b. Whether You contested the diagnosis of the asbestos related disease 

alleged by the plaintiff or claimant; 

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c. The nature of the alleged exposure to EMTAL talc, including whether 

exposure allegedly occurred with EMTAL talc itself or as an ingredient 

of another product using EMTAL talc, such as Bondo; 

d. The jurisdiction where the case was filed; 

e. The amount of the settlement; 

f. The name of the plaintiff or claimant’s lawyer; 

g. The amount paid by Your insurance carriers to settle the case; 

h. The amount paid directly by You to settle the case; 

i. The amount paid by or on behalf of You to Your attorneys prior to 

the dismissal of the plaintiff’s claim; 

j. Whether any attorney for You ever represented to the lawyer for the 

plaintiff or claimant that there was no asbestos in EMTAL talc, 

including the Attorney’s name who made the representation; 

k. Whether You ever represented to the lawyer for the plaintiff or 

claimant that there was no evidence of asbestos in EMTAL talc, 

including the name of the person who made the representation and his 

or her authority; 

l. Whether the plaintiff or claimant’s lawyer was given a copy of Mr. 

Ashton’s affidavit and if so by whom and why; 

m. Whether the plaintiff or claimant’s lawyer was given a copy of any 

affidavit signed by Mr. Charles Carter as affiant, and if so by whom and 

why; 

n. Whether You had in Your possession at the time of dismissal any 

evidence indicating EMTAL talc was sold to plaintiff or claimant's 

employer; and 

o. Whether the reason for the amount of the settlement was reported to 

the insurance carrier for You

Id., Interrog. No. 1. 

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BASF objected that plaintiffs’ Second Set of Interrogatories as “exceed[ed] 

the limit on interrogatories set forth in Federal Rule of Civil Procedure 33(a)(1),” 

but nevertheless served a substantial response to Interrogatory No. 1 that also 

referenced various documents, including the Cahill database. Ex. D (3/7/18 BASF 

Resps. to Pls.’ Interrogs., Set 2). BASF also “refer[red] plaintiffs to the documents, 

databases, and other information in the possession, custody, or control of the lawyers 

who represented plaintiffs in past litigation matters,” noting that “lawyers for past 

plaintiffs possess substantial information that is responsive to this interrogatory but 

have asserted objections and refused to produce responsive information, particularly 

as to members of the putative class.” Id. at Resp. to Interrog. No. 1. 

Plaintiffs had also requested various information about the lawyers who had 

worked on the Emtal cases, including fees paid to each. Ex. B (1/22/18 Pls.’ 

Interrogs., Set 2, No. 4). BASF again provided an extensive response, but objected 

to providing information on legal fees, as irrelevant and unduly burdensome. Ex. D 

(3/7/18 BASF Resps. to Pls.’ Interrogs., Set 2, No. 4). Plaintiffs once again did not 

move to compel on any responses.

In addition to these interrogatories, plaintiffs had ample opportunity to gather 

information relating to the past asbestos cases. In addition to the Cahill database, 

BASF has produced thousands of other documents based on plaintiffs’ own search 

terms. Plaintiffs also served subpoenas on various insurance companies and 

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received documents in response. They further had the opportunity to depose 

numerous witnesses, including four witnesses on insurance issues.

B. Plaintiffs’ Third Set of Interrogatories

On March 15, 2018, plaintiffs (again, collectively) served a Third Set of 

Interrogatories on BASF. See Ex. E (3/15/18 Pls.’ Interrogs., Set 3). This Third Set 

included 11 more interrogatories calling for a massive amount of additional 

information about the underlying asbestos claims. Interrogatories Nos. 9, 10, and 

11 are the only ones at issue in the instant motion. Each of those three interrogatories 

contains numerous subparts, and then contains yet further subparts through their 

request that BASF provide information responsive to massive grids. Interrogatory 

No. 9 requires BASF to prepare calculations for a 234-cell matrix concerning past 

legal fees, Interrogatory No. 10 requires BASF to prepare calculations for a 351-cell 

matrix concerning the resolution of past cases, and Interrogatory No. 11 requires 

BASF to prepare calculations for a 144-cell matrix concerning past settlements. Id.

 It is necessary to quote these three interrogatories in full as part of later 

demonstrating why they are excessive and improper1:

INTERROGATORY NO. 9: For each year during the Time Period, and 

excluding expenditures relating solely to the defense of the present Williams case, 

 

1 All text for the remainder of this subsection B are quotes of Interrogatories Nos. 9 

to 11.

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state: (a) the total aggregate amount of Defense Costs You or anyone on Your 

Behalf, including without limitation any insurance company, paid to defend EMTAL 

Claims asserted against You during any portion of the year; (b) the total number of 

EMTAL Claim Claimants with actions pending against You during any portion of 

the year; (c) the highest total amount of Defense Costs paid by You or on Your behalf 

during the year in defending a single EMTAL Claim Claimant’s EMTAL Claim; (d) 

the lowest total amount of Defense Costs paid by You or on Your behalf during the 

year in defending a single EMTAL Claim Claimant’s EMTAL Claim; (e) the 

arithmetic average (mean) total expenditure amount paid by You or on Your behalf 

in defending a single EMTAL Claim Claimant’s EMTAL Claim during the year; 

and (f) the median expenditure paid by You or on Your behalf for defending a single 

EMTAL Claim Claimant’s EMTAL Claims during the year 

Please use the following matrix to supply this data:

Year (a) 

Total Defense 

Expenditures

(b) 

Number of 

EMTAL Claim 

Claimants 

Pending

(c) 

Highest single 

Emtal Claim 

Defense Cost 

expenditure 

during period

(d)

Lowest single 

EMTAL claim 

Defense Cost 

expenditure

(e) 

Arithmetic 

Average 

(mean) 

Defense Cost 

expenditure

(f) 

Median 

Defense Cost 

expenditure

1979 $ $ $ $ $

1980

1981

1982

1983

1984

1985

1986

1987

1988

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1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

INTERROGATORY NO. 10: For each year during the Time Period, and 

excluding the present Williams case, state the number of Emtal Claim Claimants’ 

Emtal Claims that resolved or terminated at or during each of the following claim or 

litigation stages: 

a. Prior to filing of suit or adjudicative claim. 

b. At or upon filing of suit or adjudicative claim 

c. Filing of Motion to dismiss complaint. 

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d. The close of the pleadings if no motion to dismiss filed or if filed was not 

granted in full as to Engelhard or BASF. 

e. During discovery but prior to dispositive motions or pretrial conference. 

f. Motion for Summary Judgment or similar dispositive motions 

g. Pretrial proceedings 

h. Trial 

i. During Appeal 

Please use the following matrix to supply this data:

Year a b c d e f g h i

1979

1980

1981

1982

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

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2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

INTERROGATORY NO. 11: For each year during the Time Period please 

state the total amount of Claim Payments You or anyone on Your Behalf, including 

without limitation any insurance company, paid relating to Emtal Claims; (b) the 

number of EMTAL Claim Claimants whose Emtal Claims were terminated or 

resolved by the Claim Payments made during the year; (c) the highest Claim 

Payment amount paid during the year in relation to a single Emtal Claim Claimant; 

and (d) the lowest Claim Payment amount paid during the year in relation to a single 

Emtal Claim Claimant.

Please use the following matrix to supply this data:

Year (a) 

Total Amount of Claim 

Payments Paid During Year

 (b) 

Number of 

EMTAL Claim 

Claimants 

Claim 

Payments 

resolved

 (c) 

Highest Claim 

Payment to a Single 

EMTAL Claim 

Claimant during 

period

 (d)

Lowest Claim 

Payment to a Single 

EMTAL Claim 

Claimant during 

period

1979 $ $ $

1980

1981

1982

1983

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1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

C. BASF’s Objections and Meet and Confer Efforts

On April 16, 2018, BASF served timely responses and objections to plaintiffs’ 

third set of interrogatories. See Ex. F (4/16/18 BASF Resps. & Objs.). BASF 

objected to all of plaintiffs’ Third Interrogatories because plaintiffs “exceeded their 

number of interrogatories allowable” under the Federal Rules and this Court’s 

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October 17, 2016 Order. Id. at 2. BASF further objected because “responding to 

these interrogatories and their subparts would require an enormous investment of 

resources which is disproportionate to the issues in this case. This is especially true 

where, as here, the plaintiffs have waited until the waning weeks of discovery to 

serve these interrogatories.” Id.

Plaintiffs on April 18, 2018 sent an email to BASF asking to meet and confer 

regarding BASF’s interrogatory responses. See Ex. G (4/18/18 R. Pratter Email to 

P. Farrell). BASF responded the next day, April 19, and attempted to schedule a 

meet-and-confer the following day, April 20. See Ex. H (4/19/18 P. Farrell Email to 

R. Pratter). Plaintiffs took more than a week to respond and eventually offered to 

speak on April 29. See Ex. I (4/27/18 R. Pratter Email to P. Farrell). Because BASF 

was fully engaged preparing its experts for the Science Day hearing then scheduled 

for May 2, BASF offered to meet and confer with plaintiffs in person in Philadelphia 

either before or after the hearing. Ex. J (4/27/18 P. Farrell Email to R. Pratter). 

Plaintiffs declined this request. See Ex. K (4/30/18 P. Farrell Email to H. Roth).

The parties finally met and conferred by telephone on May 8. BASF reiterated 

what it had already produced in response to plaintiffs’ prior document requests and 

interrogatories, including the Cahill database, tens of thousands of pages of 

documents that were identified using search terms plaintiffs themselves crafted, and 

documents produced by Engelhard’s insurers. BASF also explained that 

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Engelhard’s defense costs are not relevant and unduly burdensome to calculate in 

the manner plaintiffs have requested. BASF also noted that plaintiffs exceeded the 

number of interrogatories permitted. On May 15, 2018, plaintiffs filed a motion to 

compel on only 3 of the 11 interrogatories in Set Three. This opposition follows.

ARGUMENT

Plaintiffs’ motion to compel further responses to Interrogatories Nos. 9, 10, 

and 11 is improper and should be denied. Those interrogatories far exceed the 

permissible 25-interrogatory limit; call for information, such as legal fees, that is not 

relevant or proportional to the case; and request other information that would be 

unduly burdensome for BASF to prepare, that plaintiffs could try to prepare on their

own, and that plaintiffs had many opportunities to develop in discovery. All of this 

also comes far too late in the discovery process. It was plaintiffs’ obligation to build 

a record under a permissible damages theory. They cannot now foist that work upon 

BASF at the eleventh hour.

I. PLAINTIFFS’ THIRD SET OF INTERROGATORIES EXCEEDS THE 

25-INTERROGATORY LIMIT

Plaintiffs’ motion to compel should be denied at the outset because plaintiffs 

have vastly exceeded the 25-interrogatory limit. Under Federal Rule of Civil 

Procedure 33(a)(1), “a party may serve on any other party no more than 25 written 

interrogatories, including all discrete subparts.” (Emphasis added). By the same 

token, it is also “well settled that the question whether an interrogatory contains more 

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than one ‘discrete separate subject’ does not turn on whether the interrogatory has 

separately enumerated subparts. The subparts can be explicit or implicit; the number 

of subparts does not turn on the formalism of labeling.” Engage Healthcare 

Commc’ns, LLC v. Intellisphere, LLC, 2017 WL 2371834, at *3 (D.N.J. Feb. 10, 

2017) (quotations omitted). A sub-part or portion of an interrogatory is deemed a 

separate request when it is not “logically or factually subsumed within and 

necessarily related to the primary question.” Id. (quotations omitted); see also 

Pulchalski v. Franklin Cty., 2017 WL 57143, at *4 (M.D. Pa. Jan. 5, 2017) (finding 

party exceeded 25-interrogatory limit under this standard); Knit With v. Knitting 

Fever, Inc., 2010 WL 11474937, at *1 (E.D. Pa. Jan. 22, 2010) (same).

The pretrial scheduling order in this case clarified that each party was 

permitted to serve 25 additional interrogatories from the time that order was entered, 

which occurred after plaintiffs and BASF had each served a first set of 

interrogatories. A review of plaintiffs’ First and Second Set of Interrogatories 

demonstrates that they each easily exceed the 25-interrogatory limit. By BASF’s 

count, and counting conservatively, plaintiffs’ First Set of Interrogatories, although 

styled as 17 interrogatories, is in fact closer to 26 separate questions. And plaintiffs’ 

Second Set of Interrogatories, although styled as 4 interrogatories, is in fact closer 

to 52 separate questions. For example, Interrogatory No. 1 in the Second Set, which 

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BASF quoted in full above, contains 15 unique subparts alone, which would have to 

be answered for every past Emtal talc settlement. 

By any measure, plaintiffs had thus easily exceeded the applicable 25-

interrogatory limit by the time they served their Third Set of Interrogatories. But 

that Third Set, if anything, contains even more true subparts. In fact, the three 

interrogatories at issue in this motion to compel themselves exceed the 25-

interrogatory limit on their own. Interrogatory No. 9 contains six subparts, which 

must each be answered for every year between 1979 and 2017. This is hundreds of 

independent questions alone, and the same is true of Interrogatories Nos. 10 and 11.

Such questions requiring various discrete pieces of information for multiple 

years easily put plaintiffs over the interrogatory limit, as courts have recognized. See 

Pulchalski, 2017 WL 57143, at *4 (“We find that the interrogatories propounded by 

the plaintiff exceed the 25 interrogatory limit set by Rule 33(a)(1). In particular, we 

note that a number of these interrogatories are framed in multiple sub-parts asking a 

series of discrete inquiries about multiple events, spanning several years.”); 

Waterbury v. Scribner, 2008 WL 2018432, at *3 (E.D. Cal. May 8, 2008) 

(“Plaintiff’s requests for the separate years from 2004 through to the present are 

separate and distinct. Interrogatories 2, 3 and 4 will each be treated as five separate 

interrogatories, for a total of fifteen (15) interrogatories.”).

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During the meet-and-confer process, plaintiffs provided no basis for 

exceeding the 25-interrogatory limit. Instead, Mr. Coren for plaintiffs informed 

BASF that plaintiffs were entitled to additional interrogatories because the Court’s 

appointment of a Special Discovery Master signified an expansion of available 

discovery (which is not the case). In their motion to compel, plaintiffs now make a 

completely different argument (and one they never made before) that, in fact, each 

named plaintiff is entitled to serve 25 interrogatories on BASF. Pls.’ Br. 3-4.

That post hoc justification is not correct. When the parties were discussing 

the discovery limits with Judge Dickson, there was no suggestion that each named 

plaintiff would be able to serve 25 additional interrogatories on BASF. Ex. L 

(10/14/16 Hr’g Tr. 15:6-15). Nor would BASF have ever agreed to a world of lopsided discovery in which plaintiffs could serve 150 interrogatories on BASF, in 

addition to those served before entry of the scheduling order. Confirming this is not 

what the parties or Court intended, plaintiffs have never proceeded as though each 

plaintiff had 25 separate interrogatories to serve. Plaintiffs served all three sets of 

interrogatories on behalf of “plaintiffs” collectively, not any one plaintiff 

individually. Ex. A (10/23/15 Pls.’ Interrogs., Set 1); Ex. B (1/22/18 Pls.’ Interrogs., 

Set 2); Ex. E (3/15/18 Pls.’ Interrogs., Set 3). And even if each plaintiff had 25 

interrogatories, each plaintiff has already exceeded that amount by joining in the 

service of the second set interrogatories, to say nothing of the third.

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The sole case plaintiffs’ cite, Trevino v. ACB American, Inc., 232 F.R.D. 612 

(N.D. Cal. 2006), does not support them. There, the Court recognized that plaintiffs, 

like plaintiffs here, had in fact exceeded the interrogatory limit because some of their 

interrogatories contained multiple independent questions. Id. at 614. Counting those 

separate subparts as separate interrogatories, the plaintiffs had exceeded the limits 

by 7 interrogatories as to one defendant, and 12 as to another, which the Court 

permitted them to do. Id. That is a far cry from this case, where plaintiffs are seeking 

to serve dozens if not hundreds more interrogatories, following a multi-year course 

of dealing in which plaintiffs never suggested or acted as though they could serve 

any more than the 25 interrogatories the parties had agreed to before Judge Dickson. 

See also Makaeff v. Trump Univ., LLC, 2014 WL 3490356, at *6 (S.D. Cal. July 11, 

2014) (explaining how given overall context of case, plaintiffs were not each 

allowed 50 interrogatories, contrary to language suggesting that in scheduling order).

II. INTERROGATORIES NOS. 9, 10, AND 11 CALL FOR 

INFORMATION THAT IS IRRELEVANT OR THAT PLAINTIFFS 

HAD AMPLE OPPORTUNITY TO DEVELOP

Even if plaintiffs could exceed the 25-interrogatory limit, Interrogatories Nos. 

9, 10, and 11 would still be impermissible. Under Rule 26, discovery must be 

“relevant” and “proportional to the needs of the case,” considering factors such as 

“the importance of the issues at stake,” “the importance of the discovery in resolving 

the issues,” “the parties’ relative access to relevant information,” and “whether the 

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burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. 

Civ. P. 26(b)(1). The party seeking discovery bears the burden of establishing it is 

subject to production under Rule 26. See, e.g., Nat’l Union Fire Ins. Co. of 

Pittsburgh v. Becton, Dickinson & Co., 2018 WL 627378, at *4 (D.N.J. Jan. 30, 

2018). Plaintiffs cannot meet that burden for Interrogatories 9 to 11. In this section, 

BASF will explain why the information requested is either irrelevant or information 

plaintiffs could have prepared on their own, to the extent it exists. In the following 

section, BASF will explain why these requests are unduly burdensome. 

Interrogatory No. 9: Interrogatory No. 9 asks for extensive information about 

defense costs and fees paid to defend Emtal talc cases, from 1979 to 2017, including 

preparation of a grid requiring 234 independent calculations, such as “the arithmetic 

average (mean) total expenditure amount paid by You or on Your behalf in 

defending a single EMTAL Claim Claimant’s” for each year in a 38-year period. 

Ex. E (3/15/18 Pls.’ Interrogs., Set 3, No. 9). This includes the period 2009 to 2017, 

the more modern litigation that post-dates plaintiffs’ counsel’s raising their fraud 

allegations in New Jersey state court. Plaintiffs in their brief offer only a single line 

justifying the enormous amount of information requested in Interrogatory No. 9: 

“Interrogatory No. 9 would yield information on BASF’s knowledge and motive, as 

well as data that will inform Plaintiffs’ expert on damages.” Pls.’ Br. 9. Neither of 

these justifications passes muster.

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Plaintiffs offer no explanation as to what “knowledge or motive” they are 

referring to, or how extensive information about legal fees would be relevant to this 

unidentified “knowledge and motive.” Nor do plaintiffs explain the basis for any 

request for information post-dating 2009, when plaintiffs’ counsel “uncovered” the 

alleged fraud, 7/16/15 2nd Am. Compl. ¶ 7 (ECF No. 158), after which Kirkland & 

Ellis LLP and other new firms became involved in BASF’s defense. Plaintiffs have 

previously agreed that these later time periods were off limits for discovery 

purposes. That this time period is part of plaintiffs’ Third Set of Interrogatories 

underscores the overbreadth of the requests. Regardless, plaintiffs have had ample 

opportunity through other means—other interrogatories, documents, depositions, 

and so on—to develop evidence going to “knowledge and motive,” however defined. 

Nor do plaintiffs explain how legal fees Engelhard and BASF paid in 

defending talc cases would be relevant to plaintiffs’ own damages. In the meet-andconfer process, plaintiffs claimed that amounts Engelhard and BASF paid to defend 

itself in talc cases would be relevant to a “disgorgement” theory. The argument is 

nonsensical. As the Third Circuit opinion indicates, plaintiffs may attempt to seek 

damages with reference to their underlying cases and how much they incurred to 

litigate them without the alleging missing evidence. Williams v. BASF Catalysts 

LLC, 765 F.3d 306, 321 (3d Cir. 2014) (citing Rosenblit v. Zimmerman, 766 A.2d 

749, 758 (N.J. 2001), and Tartaglia v. UBS PaineWebber Inc., 961 A.2d 1167, 1190 

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(N.J. 2008)). Plaintiffs have either failed to develop this evidence in discovery, have 

refused to produce the information that would allow such calculations, or cannot get 

around the fact that in the underlying cases, other talc defendants whose products 

were known to contain asbestos participated in aggregate settlements and paid the 

same or similar amounts as did Engelhard.

While those difficulties may be the origins of plaintiffs’ new “disgorgement” 

theory, that theory makes no sense in the context of this case. “Generally, 

disgorgement is a form of [r]estitution measured by the defendant’s wrongful gain. 

Disgorgement requires that the defendant give up those gains ... properly attributable 

to the defendant’s interference with the claimant’s legally protected rights.” Kokesh 

v. S.E.C., 137 S. Ct. 1635, 1640 (2017) (quotations omitted); see also S.E.C. v. Teo, 

746 F.3d 90, 110 (3d Cir. 2014) (purpose of disgorgement is for “wrongdoers to 

disgorge their fraudulently obtained profits”) (quotations omitted); Kleinman v. 

Merck & Co., 8 A.3d 851, 863 (N.J. Super. Ct. Law Div. 2009) (“The intent of an 

unjust enrichment cause of action is to receive a ‘disgorgement’ of the profits 

retained by the defendant.”).

Here, a disgorgement remedy has no conceptual relationship to the amounts 

Engelhard or BASF paid to outside counsel to litigate talc cases, and plaintiffs cite 

no authority suggesting one. These legal fees are not “gains” or “profits” for 

Engelhard or BASF; they are, if anything, losses. They likewise were not taken from 

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plaintiffs in any relevant sense, and therefore have no relationship to any damages 

plaintiffs could claim they sustained, making Interrogatory No. 9 irrelevant here. 

See, e.g., Kimberly-Clark Worldwide, Inc. v. First Quality Baby Prod., LLC, 2011 

WL 13199148, at *1 (M.D. Pa. Dec. 21, 2011) (“KC now raises another argument 

concerning damages, but fails to explain (or cite authority explaining) the measure 

of damages to which the requested information is allegedly relevant. KC’s 

assertions of relevance are unsupported, and as such, they are not sufficient to 

convince us that the requested documents are relevant.”).

Interrogatories Nos. 10 and 11: Interrogatories Nos. 10 and 11 request 

extensive information about past asbestos cases, including the stage of the 

proceeding in which every case litigated between 1979 and 2017 concluded 

(Interrogatory 10) and settlement figures and other related data for every year from 

1982 to 2017 (Interrogatory No. 11). Plaintiffs attempt to justify these substantial 

and burdensome requests by arguing that they would “provide valuable information 

to Plaintiffs’ expert in creating a damages model” and would be “pertinent to a 

number of issues such as numerosity and ascertainability.” Pls.’ Br. 9-10. 

These thin justifications are not sufficient, especially given the amount of 

information sought. Vague and generic allegations of relevance do not satisfy 

plaintiffs’ burden under Rule 26. See, e.g., Avago Techs. U.S., Inc v. IPtronics Inc, 

309 F.R.D. 294, 298–99 (E.D. Pa. 2015); Travillion v. Allegheny Cty. Bureau of 

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Corr., 2009 WL 1457720, at *1 (W.D. Pa. May 22, 2009); Doe v. Methacton Sch. 

Dist., 164 F.R.D. 175, 176-77 (E.D. Pa. 1995). The requests again call for 

information from 2009 to 2017, which is improper and problematic for the reasons 

stated above. And for information prior to 2009, plaintiffs neglect to explain how 

such information would be relevant to damages or to ascertainability (neither 

Interrogatory No. 10 nor No. 11 requests the identity of any putative class members). 

At bottom, if this is information plaintiffs wanted, they had ample opportunity 

to gather it during this litigation, both through the documents produced (responsive 

to plaintiffs’ own search terms), the Cahill database, insurers, and so on. Much of 

the information in question is also in possession of counsel for putative class 

members. See Ex. D (3/7/18 BASF Resps. to Pls.’ Interrogs., Set 2 at 3) (noting that 

“lawyers for past plaintiffs possess substantial information that is responsive to this 

interrogatory but have asserted objections and refused to produce responsive 

information, particularly as to members of the putative class”). What plaintiffs 

cannot do is force BASF to do the work of plaintiffs and their experts. See, e.g., 

Younes v. 7-Eleven, Inc., 2015 WL 12843883, at *3 (D.N.J. Aug. 19, 2015) (denying 

discovery because, inter alia, material sought was “unnecessarily cumulative” and 

“resource intensive”).

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III. INTERROGATORIES 9, 10, AND 11 ARE UNDULY BURDENSOME

Discovery requests may also “be denied if, after assessing the needs of the 

case ... there exists a likelihood that the resulting benefits would be outweighed by 

the [consequent] burden or expenses imposed.” Eisai Inc. v. Sanofi-Aventis U.S., 

LLC, 2012 WL 628320, at *3 (D.N.J. Feb. 27, 2012); see also Fed. R. Civ. P. 

26(b)(1). Even assuming plaintiffs could exceed the 25-interrogatory limit and their 

requests were deemed relevant, plaintiffs’ motion to compel should be denied in 

light of the obvious burden that Interrogatories 9 to 11 would impose on BASF.

The breadth of these three interrogatories is remarkable and confirms the 

burden. For a nearly 40-year period involving what plaintiffs allege are thousands 

of past asbestos cases in courts around the country, plaintiffs ask BASF to prepare 

extensive information and calculations about legal fees across decades 

(Interrogatory No. 9), the point in the litigation at which every past case resolved 

(Interrogatory No. 10), and settlement figures, including information relating to 

claims paid by insurers (Interrogatory No. 11). All told, plaintiffs ask BASF to fill 

in 729 individual cells in three grid matrices, each requiring its own calculation. It 

is difficult to imagine a more onerous set of interrogatories.

Plaintiffs argue “[i]t is simply inconceivable that BASF does not have the 

information responsive to Interrogatory Nos. 9, 10 and 11 readily available to it and 

its counsel who filed these objections.” Pls.’ Br. 11. But plaintiffs have no record 

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evidence to support these assertions and took no discovery that would support them. 

It is also not “simply inconceivable” that BASF would not have at the ready 

voluminous information about thousands of past cases, in the form plaintiffs desire, 

going back 40 years for litigation involving the long-discontinued talc operation of 

a company it acquired 12 years ago. Plaintiffs’ contention that Interrogatories 9, 10, 

and 11 are not burdensome is based on speculation and ignores the obvious burdens 

associated with their request.

For avoidance of doubt, however, the information plaintiffs seek is, in fact, 

not readily accessible, to the extent it exists at all. Attached hereto is the declaration 

of Kevin Wood, the Manager of Catalyst Information Management at BASF. Ex M 

(Wood Decl.). Mr. Wood is “generally familiar with BASF’s current and historical 

accounting and accounts payable systems used to record expenses and payments to 

outside vendors, including outside law firms.” Id. ¶ 2. As Mr. Wood explains, with 

respect to legal fee spend and settlement information (Interrogatories 9 and 11), 

I am not aware of any reporting capability that would 

generate the information requested in the form that 

plaintiffs seek in an automated fashion for any portion of 

the time period covered by plaintiffs’ requests. As a result, 

assembling the information that plaintiffs requested in the 

form that they seek it would require a manual review of 

historical documents, such as periodic invoices and 

associated correspondence regarding Emtal litigation and 

settlements from 1979 through 2017 for each law firm that 

BASF and Engelhard retained in each personal injury case 

related to Emtal talc.

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Id. ¶ 4. 

Specifically, legacy Engelhard legal spend and settlement amounts “are not 

maintained in current systems and, if they are maintained at all, they would be 

maintained in applications that are no longer supported commercially and reside on 

an offsite server from which information would need to be extracted and reviewed.” 

Id. ¶ 5; see also id. ¶ 6 (“The versions of the applications provided by McCormack 

& Dodge and J.D. Edwards used by Engelhard are no longer supported commercially 

and would require specialized hardware and software to operate.”). And while 

spending and settlement amounts after 2006 (post-acquisition) are maintained in 

online systems, those systems “do not maintain that information in the form that 

plaintiffs seek,” and so “manual review of periodic invoices and related 

correspondence would still be necessary.” Id. ¶ 7.

The information sought by Interrogatory No. 10—the number of claims 

resolved at nine specified points in litigation over nearly 40 years—is also not 

readily accessible and does not exist in the form plaintiffs request. BASF has already 

produced information responsive to plaintiffs’ requests that could potentially be used 

to generate such information, such as the Cahill database. But this request would 

effectively ask BASF to do plaintiffs’ work for them and laboriously examine 

records of past cases, including court records, to ascertain the point when the cases 

may have resolved. BASF does not believe this undertaking is even possible across 

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all past cases, or even a critical mass of them. But in all events, there is no basis for 

plaintiffs to ask BASF to do work that they could attempt to undertake themselves.

CONCLUSION

For the foregoing reasons, plaintiffs’ motion to compel further responses to 

Interrogatories 9, 10, and 11 in Plaintiffs’ Third Set of Interrogatories should be 

denied.

Date: May 21, 2018 Respectfully submitted,

s/ Justin T. Quinn

Eugene F. Assaf, P.C. (pro hac vice)

Michael F. Williams

Daniel A. Bress (pro hac vice)

Peter A. Farrell (pro hac vice)

KIRKLAND & ELLIS LLP

655 15th St., N.W.

Washington, D.C. 20005

Phone: (202) 879-5000

Facsimile: (202) 879-5200

Justin T. Quinn

Robinson Miller LLC

One Newark Center, 19th Floor

Newark, New Jersey 07102

Phone: (973) 690-5400

Facsimile: (973) 466-2760

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