, 

, 

Plaintiff,

OPINION AND ORDER

V.

BASF CATALYSTS, LLC, et al.,

Defendants.

LINARES, Chief District Judge

This matter comes before the Court by way of Plaintiffs’ objections to this Court’s August

3, 2017 Order appointing Roberto A. Rivera-Soto (former New Jersey Supreme Court Justice) asSpecial Discovery Master (“Special Master Rivera-Soto”) under Federal Rule of Civil Procedure

53 in this matter. (ECF No. 335). The Court heard oral argument regarding this issue onSeptember 5, 2017. For the reasons set forth below, the Court rejects Defendants’ objections and

finds that Special Master Rivera-Soto may serve as Special Master.

I. Factual Background

The Court will rely upon the factual background contained in its decision in Williams v.

BASF Catalysts LLC, 2016 U.S. Dist. LEXIS 46273 (D.N.J. Apr. 5, 2016). In summary, Plaintiffs

allege, inter a/ia, that BASF Catalysts LLC and its attorneys at the finn Cahill Gordon & Reindel

conspired to prevent thousands of litigants that claimed injuries due to asbestos exposure fromattaining fair tort recoveries. Plaintiffs allege that BASF’s predecessor, Engelhard Corp.

(“Engelhard”), with the help of its attorneys from Cahill, destroyed or hid tests and reports that
II. Relevant Procedural History

As the parties are aware, this Court has found that the assistance of a Special Master in this

case is necessary as this action involves very voluminous and complex issues of discovery.

Accordingly, on June 8, 2017, this Court appointed Hon. Garret E. Brown, Jr., U.S.D.J. (forner

Chief Judge of this District) to serve as Special Master. (ECF No. 319). The parties objected to

said appointment, and, ultimately, Judge Brown declined to serve as Special Master.

The fact remains that due to the nature of this action, and the assertion of the parties,

discovery in this action will be extensive and contentious. This is particularly true given thisCourt’s findings regarding the potential waiver of the attorney-client privilege as it pertains to the

underlying asbestos actions and the thousands offiles related thereto, which may require individualanalysis by this Court. (ECF No. 334). Specifically, on August 3, 2017, this Court held, in part,

that

“[i]n order to resolve the issues Plaintiffs identified i.e. ‘[w]hether BASF

and Cahill’s spoliation of evidence had the capcity to and did adverselyaffect and hamper the prosecution of asbestos claims against BASF’ (P1.Br., ECF No 249 at 3-4), the scope of discovery may include inquiry as to

why Plaintiffs settled or dismissed their underlying claims. To fully explore

this issue, Defendants will be entitled to discover what Plaintiffs and their

counsel knew, and were told, and whether any knowledge, or lack thereofcontributed to Plaintiffs’ decisions resolving the underlying cases.”

(Id. at 19). This Court went on to conclude that, given the fact that an inquiry into the reasons forsettlement is necessary, Plaintiffs may have, under some circumstances, waived their attorneyclient privileges, which may require the Court’s analysis of potentially thousands of files in the

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Thus, in that same Opinion and Order dated August 3. 2017, this Court appointed former

New Jersey Supreme Court Justice Roberto A. Rivera-Soto as Special Master for this case. (ECFNos. 334, 335). On August 8, 2017, Defendants Cahill Gordon & Reindel, LLP, BASF Catalysts,

LLC, Hoard G. Sloane, and Ira Dembrow submitted a written objection to the appointment of

Special Master Rivera-Soto. (ECF No. 336). On August 9, 2017, Defendant BASF, through

separate counsel, submitted, inter a/ia, an additional, but identical, objection to the appointment

of Special Master Rivera-Soto. (ECF No. 337). The objections are two-fold. First, Defendants

asserted that Special Master Rivera-Soto may not serve as Special Master in this case because he

was once a partner at Fox Rothschild LLP, which is one of the law firms representing Plaintiffs

herein (“Fox Rothschild Objection”). (ECF No. 336). Additionally, Defendants pointed to the

fact that Special Master Rivera-Soto’s current law firm, Ballard Spahr, LLP, was being represented

by Williams & Connolly, LLP in an unrelated matter in Pennsylvania (“Williams & Connolly

Objection”). (Id.). Accordingly, Defendants believe that Special Master Rivera-Soto’s

involvement in this matter is inappropriate because there is a conflict of interests.

Upon receipt of these letters, Special Master Rivera-Soto submitted a reply to both

objections. (ECF No. 338). Therein, Special Master Rivera-Soto noted that the Fox RothschildObjection carries no weight, since his last involvement with the firm was 13 years ago. (Id.).

Special Master Rivera-Soto indicated that during his tenure with the Supreme Court ofNew Jersey,

Special Master Rivera-Soto recused himself from all Fox Rothschild cases. (Id.). Additionally,

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was unaware that Ballard Spahr had even retained Williams & Connolly to represent it until it was

brought to his attention and that he had no involvement in the Pennsylvania action whatsoever.

(Id.). Therefore, Special Master Rivera-Soto asserts that there is no conflict and his impartiality

would not impacted.

After a review of the aforementioned submissions, the Court converted a pending status

conference, scheduled for September 5, 2017, into oral argument. (ECF No. 340). The parties, as

well as Special Master Rivera-Soto, appeared and asserted their positions. That morning the Courtwas advised, on the record, by Special Master Rivera-Soto, that the Pennsylvania action had been

settled and that Williams & Connolly no longer represented Ballard Spahr. The parties reiterated

their objections. The Court also noted that, given the change in circumstances in the Pennsylvania

action, the analysis regarding the potential conflict of interests changed. Hence, the Court asked

Special Master Rivera-Soto to submit a certification consistent with Rule 53 and 2$ U.S.C. § 455,

which he filed on September 14, 2017. (ECF No. 34$). The Court also asked the parties to submitadditional briefing regarding the issue, which the parties filed on September 15, 2017. (ECF Nos.349, 350).

The Court has reviewed the additional submissions and has also taken into consideration

the parties’ positions espoused at oral argument.

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than sufficient to assure impartiality and negate any appearance of impropriety. In his September

14, 2017 letter, during the September 5, 2017 hearing, and in his Rule 53 certification, Special

Master Rivera-Soto confirmed that his involvement with Fox Rothschild ended when he lefi to

join the Supreme Court of New Jersey 13 years ago. Additionally, Special Master Rivera-Soto

recused himself from hearing any Fox Rothschild related matters pending before the Supreme

Court of New Jersey, and had no interaction nor involvement with said firm whatsoever.

Additionally, Special Master Rivera-Soto explained that, unlike common practice where a

lawyer leaving a law finn receives his or her equity payout over a period of time, he was paid in a

lump sum on August 3 1, 2004. Special Master Rivera-Soto also confirmed that he has not been

involved in any other matters where Fox Rothschild was also engaged since he lefi the bench.

Thus, Special Master Rivera-Soto’s connection to fox Rothschild tnily ended 13 years ago.

Indeed, as Plaintiffs correctly note, New Jersey’s Code of Judicial Conduct requires a judge to

refrain from hearing matters involving his or her former law finn for only seven years. See N.J.

Code of Judicial Conduct § 3.17(B)(2)(d). Given these facts, the Court concludes that Special

Master Rivera-Soto’s prior involvement with fox Rothschild will have no impact on his ability to

serve as an impartial Special Master in this case.

The Court is also unpersuaded by the Williams & Connolly objection, especially since

Williams & Connolly’s representation of Ballard Spahr has since ceased. Because the

representation ceased, Rule 1.9 of the Rules of Professional Conduct controls. Under

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be disqualified if the following three prongs are established: (1) the existence of a past attorney

client relationship involving the attorney sought to be disqualified, (2) that the current

representation involves the same or a matter substantially related to the former representation, and

(3) that the interests of the attorney’s current client are materially adverse to the interests of theformer client. See Delso v. Trs.fbr the Ret. Plan for the Hottrly Emps. ofMerck & Co., 2007 U.s.

Dist. LEXIS 16643, *1$*19 (D.N.J. Mar. 5, 2007)(citing Home Care Indits. v. Murray, 154 F.

Supp. 2d 861, 866 (D.N.J. April 17, 2001); Host Marriott Corp. v. Fast Food Operators, Inc., 891

F. $upp. 1002, 1007 (D.N.J. 1995); Bagdan v. Beck, 140 F.R.D. 660, 668 (D.N.J. 1991); Rohm &

Haas Co. v. Am. Cyanamid Co., 187 F. Supp. 2d 221, 228 (D.N.J. 2001)).

Here, Williams & Connolly’s representation of Ballard Spahr has no impact or relation to

its representation of Defendants in this action. As noted during oral argument, and as this Court

has been informed by the parties as well as Special Master Rivera-Soto, it appears that thePennsylvania action was brought by Ballard Spahr to recover unpaid attorneys’ fees. The matter

sitbjutdice involves alleged fraud by Defendants during numerous toxic tort cases brought against

them in the past. Ballard Spahr had no interactions with any of the parties in this case, nor wouldthe firm’s interest be materially adverse to the parties herein.

Moreover, Special Master Rivera-Soto has explicitly affirmed that he was not aware ofthe

Pennsylvania action, had no involvement in said action, nor did he have any interaction withWilliams & Connolly when it was representing Ballard Spahr in the Pennsylvania action.

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Comolly’s former representation of Ballard Spahr has no impact on Special Master Rivera-Soto’s

ability to serve as an impartial Special Master in this case nor would this prior representation,

under the specific facts previously set forth, lead a reasonable person to perceive any appearance

of impropriety.

As the parties are aware, and as explained in this Court’s prior Opinions, this Court has

broad discretion to appoint a Special Master in a matter pending before it pursuant to Rule 53 ofthe Federal Rules of Civil Procedure. See Fed. R. Civ. P. 53(a); see also Glover v. Welts Fargo

Home Mortg., 629 F. App’x 331 (3d. Cir. 2015), cert. denied, 136 S. Ct. (2016). Giventhisbroad

discretion, the complexity of this particular litigation, the length of time this matter has been

pending in this Court, and the above analysis regarding Defendants’ objections, the Court findsthat Special Master Rivera-Soto has no conflict of interest that would prohibit him from serving

as an impartial and effective Special Master.

IT IS THEREFORE on this 

day of September, 2017,

ORDERED that Special Master Roberto A. Rivera-Soto shall remain Special Discovery

Master in this action; and it is further

ORDERED that the parties shall proceed with discovery in a manner that is consistent

with this Court’s August 3, 2017 Opinion; and it is further

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L. LTNARES

United States District Court

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