Exhibit 2

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KIMBERLEE WILLIAMS, et al.,

 Plaintiffs,

 vs.

BASF CATALYSTS LLC, et al.,

 

 Defendants.

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY

DOCKET NO. 11-cv-1754 (JLL) (JAD)

CIVIL ACTION

NOTICE OF APPEAL OF THE COSTSHIFTING ORDER (CM/ECF # 534) 

ELECTRONICALLY FILED

PLEASE TAKE NOTICE that on July 2, 2018, or as soon thereafter as 

counsel may be heard, the undersigned attorneys for Representative Plaintiffs and 

the Proposed Class (“Plaintiffs”), shall move before the Honorable Jose L. Linares, 

United States District Court, District of New Jersey, Martin Luther King Building & 

U.S. Courthouse, 50 Walnut Street, Newark, New Jersey 07101, for an Order 

vacating CM/ECF # 534 to the extent it mandates cost-shifting.

PLEASE TAKE FURTHER NOTICE that in support of its motion, 

Plaintiffs will rely on its Memorandum of Law. 

PLEASE TAKE FURTHER NOTICE that oral argument is not requested.

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Date: June 8, 2018 Respectfully Submitted,

/s/ Christopher M. Placitella u

Christopher M. Placitella, Esq.

Michael Coren, Esq.

Jared M. Placitella, Esq.

Eric S. Pasternack, Esq.

Cohen, Placitella & Roth, P.C.

127 Maple Ave.

Red Bank, NJ 07701

(Tel.): (732) 747-9003

(Fax): (732) 747-9004

Jeffrey M. Pollock, Esq.

Princeton Pike Corporate Center

997 Lenox Drive, Building 3

Lawrenceville, NJ 08648

(Tel): (609) 896-3600

(Fax): (609) 896-1469

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

KIMBERLEE WILLIAMS, et al.

 

 Plaintiffs,

 vs.

BASF CATALYSTS LLC, et al.

 

 Defendants.

No. 2:11-cv-01754 (JLL) (JAD)

CIVIL ACTION

FOX ROTHSCHILD LLP

Jeffrey M. Pollock, Esq.

Princeton Pike Corporate Center

997 Lenox Drive, Building 3

Lawrenceville, NJ 08648

(Tel): (609) 896-3600

(Fax): (609) 896-1469

Dated: June 8, 2018 

COHEN, PLACITELLA & ROTH, P.C.

Christopher M. Placitella, Esq. 

Michael Coren, Esq. 

Jared M. Placitella, Esq.

Eric S. Pasternack, Esq.

127 Maple Ave

Red Bank, New Jersey 07701

(Tel): (732) 747-9003

(Fax): (732) 747-9004

Attorneys for Plaintiffs and the 

Proposed Class

PLAINTIFFS’ MEMORANDUM OF LAW

IN SUPPORT OF THE APPEAL OF THE ORDER MANDATING COSTSHIFTING (CM/ECF # 534)

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TABLE OF CONTENTS

I. PRELIMINARY STATEMENT .....................................................................1

II. STATEMENT OF THE CASE ........................................................................3

III. STANDARD OF REVIEW..............................................................................7

IV. ARGUMENT....................................................................................................8

A. The Order allowing cost-shifting is contrary to law and clearly erroneous 

because the Special Discovery Master did not find that the data necessary for 

BASF to respond to Interrogatory Nos. 9-11 is “inaccessible” and would 

have had no basis to do so. ..............................................................................8

B. Even if BASF could prove that data sought is “inaccessible,” the 

consideration of the Zubulake factors weighs against cost-shifting..............13

V. CONCLUSION ..............................................................................................21

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iii

TABLE OF AUTHORITIES

Cases

Control Screening, LLC v. Integrated Trade Sys., 

Civil Action No. 10-499,

2011 U.S. Dist. LEXIS 85202 (D.N.J. Aug. 3, 2011)............................................7

Haines v. Liggett Group, Inc., 

974 F.2d 81 (3d Cir. 1992).....................................................................................7

MacNaughton v. Equity Res. Mgmt., 

Civil Action No. 10-4807, 

2011 U.S. Dist. LEXIS 129532 (D.N.J. Nov. 9, 2011)..........................................7

McPeek v. Ashcroft, 

202 F.R.D. 31 (D.D.C. 2001) ...............................................................................14

Williams v. BASF Catalysts LLC, 

Civil Action No. 11-1754, 

2016 U.S. Dist. LEXIS 46273 (D.N.J. Apr. 5, 2016)...........................................19

Williams v. BASF Catalysts, LLC, 

Civil Action No. 11-1754, 

2017 U.S. Dist. LEXIS 122053 (D.N.J. Aug. 3, 2017)........................................15

Young v. Lukens Steel Co., 

Civil Action No. 92-6490, 

1994 U.S. Dist. LEXIS 1462 (E.D. Pa. 1994)......................................................15

Zubulake v. UBS Warburg LLC, 

216 F.R.D. 280 (S.D.N.Y. 2003)......................................................... 8, 14, 16, 20

Zubulake v. UBS Warburg LLC, 

217 F.R.D. 309 (S.D.N.Y. 2003)............................................................................8

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Rules

Fed. R. Evid. 401 .....................................................................................................15

Local Civil Rule 72.1(c)(1)(A) ..................................................................................7

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I. PRELIMINARY STATEMENT

This case seeks remedies, including disgorgement of ill-gotten gains for 

those defrauded from the right to fairly litigate asbestos injury claims because 

Defendants falsely claimed there was no evidence of asbestos in BASF’s talc. To 

fully develop that remedy, Plaintiffs have sought all data from Defendants

identifying the plaintiffs who sued Engelhard and the outcome of those cases. 

Plaintiffs’ first efforts to obtain the data through an electronic database provided by 

BASF were met with frustration because certain keys in the so called “Cahill

database” had been removed in the copy BASF gave Plaintiffs, which are 

necessary to search the database and aggregate information for each plaintiff. See

discussion at pages 17-18 infra. Plaintiffs then sought information, which should 

have been discoverable in the database given to them, in alternative ways, 

including the interrogatories before the Court. Defendants refusal again to respond 

to these requests led to motions to produce. CM/ECF # 516, 525. The Special 

Discovery Master’s Order at issue here granted Plaintiffs’ motion to compel BASF 

to respond to three interrogatories, seeking information on the defense costs BASF 

paid to defend Emtal talc claims, (Interrogatory No. 9), the number of cases settled 

or dismissed, (Interrogatory No. 10), and the total amount of payments BASF 

made to claimants from 1979 to 2017. (Interrogatory No. 11). Exhibit A, CM/ECF 

# 534. In so concluding, the Order found that the information requested is relevant 

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and proportional but also unduly burdensome. Id. The Order did not however find 

that the information sought in Interrogatory Nos. 9-11 is “inaccessible.” And for 

that reason alone, the Order is contrary to law and clearly erroneous because costshifting is appropriate only when “inaccessible” data is sought. In any event, even 

if the requested data is “inaccessible,” cost-shifting remains inappropriate given the 

importance of this information to these proceedings, the stakes here, and the lack 

of functionality of the so-called Cahill database produced by BASF to Plaintiffs, 

which Plaintiffs believe could have provided at large portion of the data necessary 

to respond to these interrogatories.

For these reasons, this Court should reverse the Special Discovery Master’s 

Order to the extent that it mandates cost-shifting.

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II. STATEMENT OF THE CASE

On March 15, 2018, Plaintiffs served the Third Set of Interrogatories and 

Fifth Requests for Production on BASF. Exhibit B. Among other areas of inquiry, 

Plaintiffs’ interrogatories sought information relating to defense costs BASF paid 

to defend EMTAL talc claims from 1979 through 2017, (Interrogatory No. 9), the 

number of Emtal claims that BASF resolved or terminated between 1979-2017, 

(Interrogatory No. 10), and the total amount of claim payments BASF paid relating 

to Emtal claims for those years, (Interrogatory No. 11).

On April 16, 2018, BASF served numerous objections to Plaintiffs’ 

interrogatories. Exhibit C. In response, Plaintiffs moved to compel on May 15, 

2018, Exhibit D, CM/ECF # 516, to which BASF responded on May 21, 2018. 

Exhibit E, CM/ECF # 529. In opposition to the motion to compel, BASF submitted 

a Declaration of Kevin Wood, a manager with BASF. Exhibit F, CM/ECF # 529-

14. Plaintiffs thereafter submitted their reply brief on May 24, 2018. Exhibit G, 

CM/ECF # 533.

Mr. Wood certified that he is “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.” Id. at ¶ 4 (emphasis added). Mr. Wood also explained that “[a]s a result, 

assembling the information that plaintiffs requested in the form they seek would

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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.” Id. Mr. Wood further certified that “[b]ecause 

Emtal talc was a legacy Engelhard business, the annual legal spending and 

settlement amounts prior to 20061for matters related to Emtal talc 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. at ¶ 5.

On May 25, 2018, the Special Discovery Master granted Plaintiffs’ motion 

to compel BASF to respond to Interrogatory Nos. 9-11. Exhibit A, CM/ECF # 534.

However, the Special Discovery Master made no findings relating to whether the 

documents necessary for BASF to respond to the subject interrogatories are 

“inaccessible.” Instead, the Special Discovery Master observed “that any concerns 

in respect of relevance, proportionality to the needs of the case, and undue burden 

may be cured by allowing the requested discovery to go forward but, at the same 

time and as a condition precedent thereto, by shifting from BASF to plaintiffs the 

cost of responding to interrogatories 9, 10 and 11.” Id. The Special Discovery 

 

1 The interrogatories spanned the time-period ending in 2017.

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Master thus ordered that Plaintiffs are “solely responsible for all reasonable costs 

and expenses, including reasonable counsel fees, incurred by BASF in responding 

to interrogatories 9, 10, and 11.” Id.

Following the entry of the Special Discovery Master’s Order, the parties had 

an informal meet-and-confer by telephone, wherein there was a general discussion 

of the costs with the expectation of a more fulsome discussion to follow. A second

meet-and-confer thereafter took place on June 7, 2018. During that discussion, 

BASF—for the first time—indicated, without specifying which interrogatory they 

were referring to, that to respond to the interrogatories, BASF would need to 

restore legacy computer systems and examine paper documents. As to the former, 

BASF estimated that the cost of restoring the electronic information would be in 

the range of $ 65,000 to $ 165,000, with another $ 30,000 added on for attorney 

review, for a total cost of $ 95,000 to $ 195,000.

2 And as to the latter, BASF

indicated that it has approximately 11,000 outside counsel invoices (information 

responsive to Interrogatory No. 9), and 5,000 settlement-related documents

(information relevant to Interrogatory No. 11), in its possession that may be 

responsive, and that it anticipates that it would take approximately 300-400 hours 

to review those documents by either lawyers from Kirkland & Ellis LLP for 

 

2 BASF noted during the meet and confer that this was only an estimate and 

the final cost could not be determined until after the start of the restoration efforts.

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approximately $ 110,00 or contract lawyers for $ 60,000, with additional time 

needed for training the reviewers. So in sum, the total estimated cost for both 

portions of the project would range from approximately $ 155,000 to $ 305,000.

BASF also expressed no opinion on what the computer data or paper documents 

would contain. That left Plaintiffs in the position of having to commit substantial 

resources to obtain the requested discovery with no ability to control the costs 

associated with the production or any assurance of the relevance of the documents 

to be restored.

During the meet-and-confer, Plaintiffs voiced the concern that these costs 

are not reasonable. Plaintiffs as a result inquired about possible alternative methods 

to retrieve more generalized information responsive to the interrogatories, as 

opposed to the information in the stratified grid requested. For example, Plaintiffs

asked about producing the aggregate fees paid to outside defense counsel in Emtal 

talc cases year by year. Plaintiffs also inquired about sampling the information or 

obtaining just the bills or amounts paid to certain firms, such as the ones in Ohio 

and Pennsylvania. BASF rejected all of these suggestions.

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III. STANDARD OF REVIEW

Under Local Civil Rule 72.1(c)(1)(A), the District Court “shall consider the 

appeal . . . and set aside any portion of the [Special Discovery Master’s] order 

found to be clearly erroneous or contrary to law.” MacNaughton v. Equity Res. 

Mgmt., Civil Action No. 10-4807, 2011 U.S. Dist. LEXIS 129532, *6 (D.N.J. Nov. 

9, 2011) (Linares, C.J.); see also (CM/ECF # 335) (appointing Special Discovery 

Master). “A ruling is ‘contrary to law’ if the [Special Discovery Master] has 

misinterpreted or misapplied applicable law.” Id. at *7 (quoting Control Screening, 

LLC v. Integrated Trade Sys., Civil Action No. 10-499 2011 U.S. Dist. LEXIS 

85202, *16 (D.N.J. Aug. 3, 2011)). The Special Discovery Master’s legal 

conclusions on a non-dispositive motion such as the one here are reviewed “de 

novo.” Id. (citing Haines v. Liggett Group, Inc., 974 F.2d 81, 91 (3d Cir. 1992)). 

“A finding is ‘clearly erroneous’ when, ‘although there is no evidence to support it, 

the reviewing court on the entire evidence is left with the definite and firm 

conviction that a mistake has been committed.’” Id.

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IV. ARGUMENT

A. The Order allowing cost-shifting is contrary to law and clearly 

erroneous because the Special Discovery Master did not find that the 

data necessary for BASF to respond to Interrogatory Nos. 9-11 is 

“inaccessible” and would have had no basis to do so.

There is a presumption that “the responding party must bear the expense of 

complying with discovery requests.” Zubulake v. UBS Warburg LLC, 216 F.R.D. 

280, 283 (S.D.N.Y. 2003). The responding party accordingly “has the burden of 

proof on a motion for cost-shifting.” Id. As a result, courts only consider costshifting when discovery imposes an undue burden or expense on the responding 

party, meaning that “[c]ost-shifting is potentially appropriate only when 

inaccessible data is sought.” Id. at 284 (emphasis added).

Even though a court may enter a cost-shifting protective order only upon 

motion of the responding party to a discovery request and “for good cause shown,”

Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 315-16 (S.D.N.Y. 2003), the 

Special Discovery Master sua sponte ordered cost-shifting here.3 CM/ECF # 534. 

The Special Discovery Master’s Order is contrary to the law in that it orders

cost-shifting without first making a finding that the discovery sought is 

 

3 This stands in sharp contrast to the Special Discovery Master’s denial of the 

motions filed by non-parties to this matter for cost-shifting in response to 

burdensome discovery requests by BASF. Exhibit H, CM/ECF # 362; Exhibit I, 

10/26/2017 Hr’g Tr., T151:19-24.

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“inaccessible.” The record moreover supports no finding that the information 

necessary for BASF to respond to Interrogatory Nos. 9-11 is “inaccessible.”

In support of its opposition to Plaintiffs’ Motion to Compel, BASF 

submitted a Declaration of Kevin Wood. Exhibit F, CM/ECF # 529-14. He 

certified that he is “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.” Id. at ¶ 4. Mr. 

Wood continued, explaining that “[a]s a result, assembling the information that 

plaintiffs requested in the form 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.” Id.

While the declaration provides that the information cannot be automated in 

the “form” Plaintiffs seek, it does not state that the information needed to complete 

a good faith response to the interrogatories cannot be automated at all or at the very 

least obtained through manual review. Id. at ¶¶ 4-7. Mr. Wood thus does not claim 

that the information is “inaccessible.” To the contrary, he suggests that the 

information is available.

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Further, Mr. Wood’s statement, which is the only evidence BASF offered in 

opposition to the Motion to Compel, did not address Interrogatory Nos. 10 and 11

with any specificity, which asked, respectively, about the number of claims 

resolved or terminated by year from 1979 -2017 and the claim payments in each of 

those years. BASF offered no evidentiary support that such information is 

unavailable, burdensome or inaccessible. In fact, BASF’s corporate representative 

testified on June 6, 2018, to exactly the opposite—that BASF’s counsel had 

demonstrated to him only a week or so before the deposition that the Cahill 

database in its possession is operable. See Exhibit M, T42:14-18 (“Elizabeth went 

through it . . . and generated some reports from the information and tables that are 

included in that.”); id., T42:21 to T43:1 (testifying that the database generated 

“summary reports regarding litigation that was handled by Cahill for Engelhard 

and it listed [and] included columns showing different pieces of information 

related to . . . each of those lawsuits.”), id., T306:10 to T306:23 (testifying that the 

Cahill database could generate reports linking the client to the injury alleged).

BASF offers no explanation why it cannot use the same database it used to prepare 

Mr. Steinmetz for the BASF30 (b)(6) deposition to answer Interrogatory Nos. 10 

and 11 for sure, and even perhaps Interrogatory No. 9, with a minimum of fuss and

expense. 

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Addressing only in particular Interrogatory Nos. 9 and 11, Mr. Wood states 

that “[b]ecause Emtal talc was a legacy Engelhard business, the annual legal 

spending, (Interrogatory No. 9), and settlement amounts, (Interrogatory No. 11),

prior to 20064for matters related to Emtal talc 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. at ¶ 5. Again 

though, even though some of Engelhard’s accounts payable records are saved in 

applications that “are no longer supported commercially and would require 

specialized hardware and software to operate,” id. at ¶ 6, that does not mean the 

records necessary to respond to Interrogatory No. 9 are “inaccessible.” That is 

because the information necessary to respond to these interrogatories is available 

for the period from 2006 to 2017 or available elsewhere. Mr. Wood made no such 

statement about any difficulties identifying claims and closures in answer to 

Interrogatory No. 10. 

Arthur Dornbusch, former general counsel of Engelhard, testified at his

deposition that Engelhard received separate monthly bills for each legal matter and 

a general memorandum of the work done for each matter that he would review and 

 

4 Mr. Wood did not indicate in his Declaration that information from 2006 to 

2017 is not readily accessible in BASF’s current computer systems.

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approve for payment. See Exhibit J, 5/14/2018 Dornbusch Tr., T107:19-108:11; 

see Exhibit K, 4/24/2018 Hasset Tr., T52:8-18 (“[Engelhard] in general maintained 

records of legal expenses and all expenses. It’s, you know, a big company with 

good financial statements....”). The bill would then go to accounts payable. 

Exhibit J, Dornbush Tr., T108:12-17. The financial department at Engelhard would 

also give Mr. Dornbusch sheets with analysis of legal expenditures broken down 

by matter. Id. at T109:13-110:7. Mr. Dornbusch also testified that if he wanted to 

know how much Cahill Gordon billed Engelhard from 2003 to 2005 he could 

obtain that information. Id. at T111:7-13. Mr. Dornbusch’s testimony thus 

confirms the undeniable fact that corporations the size of, and with the 

sophistication and resources of BASF and its predecessors, including Engelhard,

have many accounting, financial, and budgetary procedures and controls to know 

what they are spending on legal defense costs, and especially the fees charged by 

outside law firms. In the end, BASF has only claimed that one means of retrieving 

the data necessary to respond to Interrogatory No. 9 is inaccessible; it does not 

suggest that it lacks other ways to retrieve the data, just that it would be 

inconvenient for it to do so.

The Special Discovery Master’s Order directing cost-shifting is contrary to 

law and clearly erroneous as the Order does not find that the documents necessary 

to respond to Interrogatory Nos. 9-11 are “inaccessible,” or that the responses to 

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Interrogatory Nos. 10 and 11 are burdensome or unavailable, and would have had 

no basis in the record to do so.

B. Even if BASF could prove that data sought is “inaccessible,” the 

consideration of the Zubulake factors weighs against cost-shifting.

Because the Order did not find that the documents necessary to respond to 

Interrogatory Nos. 9-11 are “inaccessible,” the Order should be reversed to the 

extent that it mandates cost-shifting. All the same, even if the data is

“inaccessible,” cost-shifting would still be inappropriate.

In Zubulake, the seminal decision on cost-shifting, the district court found 

that “to determine whether cost-shifting is appropriate for the discovery of 

inaccessible data, ‘the following factors should be considered, weighted more-orless in the following order’”:

1. The extent to which the request is specifically tailored to discover

relevant information;

2. The availability of such information from other sources;

3. The total cost of production, compared to the amount in 

controversy;

4. The total cost of production, compared to the resources available to 

each party;

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5. The relative ability of each party to control costs and its incentive 

to do so;

6. The importance of the issues at stake in the litigation;

7. The relative benefits to the parties of obtaining the information.

Zubulake, 216 F.R.D. at 284 (quoting Zubulake, 217 F.R.D. at 322); see also

Major Tours, Inc. v. Colorel, 720 F. Supp. 2d 587, 620 (D.N.J. 2010); Juster 

Acquisition Co., LLC v. N. Hudson Sewerage Auth., Civil Action No. 12-3427, 

2013 U.S. Dist. LEXIS 18372, *9 (D.N.J. 2013).

Together, the first two factors compromise what is called the “marginal 

utility test”:

The more likely it is that the [discovery] contains information that is 

relevant to a claim or defense, the fairer it is that the [responding party] 

search at its own expense. The less likely it is, the more unjust it would 

be to make the [responding party] search at its own expense. The 

difference is “at the margin.”

Zubulake, 216 F.R.D. at 284 (quoting McPeek v. Ashcroft, 202 F.R.D. 31, 34 

(D.D.C. 2001)). These two factors are weighted the most heavily, id., and here,

compel a determination that cost-shifting is not appropriate.

There can be no question that the information sought in Interrogatory Nos. 9-

11 is pertinent to the parties’ claims and defenses here. In determining whether 

evidence is relevant, the Court considers whether the evidence has “a tendency to 

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make a fact more or less probable than it would be without the evidence and the fact 

is of consequence in determining the action.” See Williams v. BASF Catalysts, LLC, 

Civil Action No. 11-1754, 2017 U.S. Dist. LEXIS 122053, at *10 (D.N.J. Aug. 3, 

2017) (citing Fed. R. Evid. 401) (internal quotations omitted). Federal Rule of Civil 

Procedure 26 “is to be construed liberally in favor of disclosure, as relevance is a 

broader inquiry at the discovery stage than at trial.” See Williams, 2017 U.S. Dist. 

LEXIS 122053, at *10 (citations omitted); Young v. Lukens Steel Co., Civil Action 

No. 92-6490, 1994 U.S. Dist. LEXIS 1462, *3 (E.D. Pa. 1994) (recognizing that 

because of the Rule 26’s purpose of allowing the parties to obtain the fullest possible 

knowledge of the issues and facts before trial, wide latitude should be afforded to 

the party seeking discovery).

In the Brief in Support of their Motion for Class Certification, Plaintiffs 

explain the remedies they seek, including disgorgement of monies saved by BASF 

in defense costs and liability payments not paid to the Plaintiffs and putative Class 

Members because of the dismissals and settlement of claims based on fraudulent 

concealment, fraud, and conspiracy, as well as why disgorgement is a proper remedy 

here. ECF # 418-1. The information sought by Interrogatories Nos. 9, 10 and 11 

specifically relate to the amount of monies Defendants should disgorge if Plaintiffs

are successful. The information is also relevant as to BASF’s intent and motive in 

employing the fraudulent asbestos defense scheme. 

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Factors three, four and five address cost issues with those focusing on “how 

expensive will the production be?” and “who can handle that expense?” Zubulake, 

216 F.R.D. at 287. “In an ordinary case, a responding party should not be required 

to pay for the restoration of inaccessible data if the cost of that restoration is 

significantly disproportionate to the value of the case.” Id. at 288. So in a “multimillion dollar case, the cost of restoration is surely not ‘significantly 

disproportionate’ to the projected value of [the] case,” which “weighs against costshifting.” Id.

In its opposition below, BASF did not provide an estimate of what it expects 

the total cost of production necessary to respond to Interrogatory No. 9 to be,

which BASF provided for the first time on June 7, 2018, in a meet-and-confer with 

Plaintiffs. Their presentation was focused on information about defense costs in 

financial records and paper copies of legal bills and payments responsive to 

Interrogatory 9; they estimated (1) the costs of restoring the electronic information

for defense costs responsive to Interrogatory 9 would be in the range of $ 65,000 to 

$ 165,000, with another $ 30,000 for attorney review; and (2) that it would take 

approximately 300-400 hours to review the paper records of legal bills and 

payments with additional time to train the reviewers. BASF further estimated that 

it would cost $ 60,000 for contract attorneys and $ 110,00 for attorneys from 

Kirkland & Ellis to review the paper documents. They also cautioned that the costs 

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for the electronic information could range higher depending on what was 

discovered once the restoration process began. That said, given the stakes in this 

litigation with there being approximately 13,000 class members, the cost of 

responding to Interrogatory Nos. 9-11 is not disproportionate to the value of this 

case, which weighs against cost-shifting.

As to factor four, BASF is a multi-national company and the largest 

chemical producer in the world. Under such circumstances, BASF is not without 

sufficient resources to respond to the subject interrogatories.

As for factor five, Defendants alone can control costs of production. 

Although BASF ultimately produced two historical electronic databases originally 

compiled by Cahill (the “Cahill database”), the main and key one which was given 

to the Plaintiffs, which is denominated as “EC_ProductsCases” 

(FRE_408_000000003), does not function as a relational database. This means that 

the database was originally structured to recognize relations among stored items of 

information. However, the copy of the Cahill database given to Plaintiffs can no 

longer be searched to link individual data fields. For example, using the database 

provided, Plaintiffs cannot select a claimant by name, and pull up from separate 

data tables the claimant’s disease, place of employment, date of claim, payments or

other key information as to that plaintiff. On the other hand, BASF’s corporate 

representative testified two days ago that he was shown a database that could do 

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the very thing that Plaintiffs have been asking for months, and asked for again in 

Interrogatory 10. Exhibit M, T42:14 to T43:1; T301:18 to T306:23. BASF cannot 

continue to refuse to produce information which its own witness says he saw two 

days ago.

According to Michael Sullivan, a paralegal with Cahill and the primary 

custodian of the databases, the purpose of the databases was “[t]o track complaints 

that were being brought against Engelhard and various types of litigation[.]” 

Exhibit L, 3/23/2018 Sullivan Tr., T172:7-9. In fact, as Mr. Sullivan testified, the 

databases went well beyond just tracking complaints: 

It would track basically information that we—the complaints 

themselves, plaintiffs and any information that was contained therein 

or any other document received thereafter about plaintiffs, to the 

extent it could be coded. Other pleadings, answers, amended 

complaints, if certain information we received in some jurisdictions 

from plaintiff’s counsel, questionnaires and whatnot, that information 

would go in there, so that would include work history, including years 

of employment, exposures, military history, prior work history, that 

type of information. Also, about counsel representing various 

defendants and plaintiffs.

Id., T172:13 to T173:5. Mr. Sullivan also testified that at around the time this 

litigation began, the then-counsel for Cahill, Williams & Connelly, removed the 

database, id. at T181:18-14, and that afterwards, the databases were no longer 

functional. Id., T190:13:19.

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When Plaintiffs asked BASF why the databases were not operable, BASF’s 

counsel reported that its vendor may have removed the necessary “forms” that 

provided the linking mechanism between the many data tables in the database. As 

a result, even if the information in the Cahill databases is necessary for BASF to 

respond to Interrogatory Nos. 9-11 and contrary to Mr. Steinmetz’s testimony that 

the databases are truly not relational, the fault for that inaccessibility rests with 

Defendants. This is not the typical case when information is lost long before 

litigation is anticipated; but rather, one where information is lost or spoliated by 

Defendants who had a duty to preserve the information. See Williams v. BASF 

Catalysts LLC, Civil Action No. 11-1754, 2016 U.S. Dist. LEXIS 46273, *21-22 

(D.N.J. Apr. 5, 2016) (finding that Defendants had a duty to preserve information 

about asbestos in the talc beginning as late as 1984).

Moreover, as BASF indicated during the meet-and-confer on June 7, 2018, it 

has identified three vendors to restore the electronic documents, and that it would 

be responsible for training the reviewers on the project. So, too, the fifth factor 

weighs in favor of having BASF bear the costs of responding to the subject 

interrogatories as it has the exclusive ability to control costs.

The sixth factor, which concerns the importance of the issues at stake in the 

litigation, also weighs against cost-shifting. The central issue in this class action is 

whether BASF and its national asbestos defense counsel, Cahill Gordon, as well as 

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the individual defendants, conspired to deceive some 13,000 putative Class 

Members who brought asbestos claims against BASF by denying them access to 

the single most important piece of evidence in an asbestos case: evidence of

asbestos. See Williams v. BASF Catalysts LLC, 765 F.3d 306, 322 (3d Cir. 2014) 

(asking “[w]hat could be more important to a claim that talc caused asbestos 

disease than proof that talc contained asbestos?”). Resolving this case would 

accordingly end this fraud on the courts and litigants; and so, the issues involved

here are of sufficient import that cost-shifting should not be allowed with respect to 

BASF’s responses to Interrogatory Nos. 9-11.

By any measure then, all the factors weigh against cost-shifting here, and the 

Special Discovery Master’s Order should be reversed to the extent that it mandates 

cost-shifting. 5

 

5

“As a general rule, where cost-shifting is appropriate, only the costs of 

restoration and searching should be shifted.” Zubulake, 216 F.R.D. at 290. The 

responding party consequently “should always bear the costs of reviewing and 

producing electronic data once it has been converted into an accessible form.” Id.

So for that reason too, the Special Discovery Master’s Order is also contrary to the 

law as it mandates that Plaintiffs are responsible not just for the costs associated 

with restoring the electronic information, but all “costs and expenses, including 

reasonable counsel fees, incurred by BASF in responding to interrogatories 9, 10, 

and 11.” Exhibit A, CM/ECF # 534.

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V. CONCLUSION

For all these reasons, the Special Discovery Master’s Order mandating costshifting is contrary to law and clearly erroneous as it did not find that the 

documents necessary to respond to Interrogatory Nos. 9-11 are “inaccessible,” and 

would have had no basis to do so in any event.

Respectfully Submitted,

 COHEN, PLACITELLA & ROTH, P.C.

 /s/ Christopher M. Placitella

 Christopher M. Placitella, Esq.

 (NJ Atty #: 027781981)

 Michael Coren, Esq.

 (NJ Atty #: 024871979)

 Jared M. Placitella, Esq.

 (NJ Atty #: 068272013)

 Eric S. Pasternack, Esq.

 (NJ Atty #: 015132011)

 127 Maple Avenue

 Red Bank, NJ 07701

 (732) 747-9003

 FOX ROTHSCHILD LLP

 Jeffrey M. Pollock, Esq.

 (NJ Atty #: 015751987)

 Princeton Pike Corp. Center

 997 Lennox Drive,

 Building 3

Lawrenceville, NJ 08648

 (609) 896-7660

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 Attorneys for Plaintiffs and the Putative Class

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