EXHIBIT D 

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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.

 

CIVIL ACTION

No. 11-1754 (JLL/JAD) 

PLAINTIFFS’ PROPOSED FACT DISCOVERY PLAN

(Submitted To Special Discovery Master)

Plaintiffs hereby submit their Proposed Discovery Plan along with discovery dispute 

status in accordance with the Court’s Special Discovery Master’s Request of September 26, 

2017, as well as Judge Linares’ August 3, 2017 Order.

Plaintiffs’ discovery plan proposes a schedule and process for completing discovery 

regarding the elements and defenses that are relevant to Plaintiffs’ spoliation and fraudulent 

concealment claims. Plaintiffs also outline proposals to effectuate the coordination of the cases 

before this Court and the Superior Court of New Jersey as we believe was contemplated by the 

Third Circuit when it remanded the case. Williams v. BASF Catalysts LLC, 765 F.3d 306 (3d Cir. 

2014)

1. Set forth the name of each attorney appearing, the firm name, address and telephone 

number and facsimile number of each, designating party represented.

Attorneys for Plaintiffs

COHEN PLACITELLA & ROTH, P.C.

Stewart L. Cohen,

Christopher M. Placitella

Michael Coren

Jared M. Placitella

127 Maple Avenue

Red Bank, NJ 07701

T: (732) 747-9003

F: (732) 747-9004

scohen@cprlaw.com

cplacitella@cprlaw.com

hroth@cprlaw.com

mcoren@cprlaw.com

jmplacitella@cprlaw.com

FOX ROTHSCHILD LLP

Jeffrey M. Pollock

997 Lenox Drive, Building 3

Princeton Pike Corporate Center

Lawrenceville, NJ 08648-2311

T: (609) 896-3600

F: (609) 896-1469

jmpollock@foxrothschild.com

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Attorneys for Defendants

Attorneys for Defendant BASF Catalysts, 

LLC:

KIRKLAND & ELLIS LLP

Eugene F. Assaf

Michael W. Williams

Peter Farrell

Tia Trout-Perez

Elizabeth Dalmut

655 15th Street N.W.

Washington, D.C. 20005

T: (202) 879-5000

F: (202) 879-5200

eassaf@kirkland.com

mwilliams@kirkland.com

pfarrell@kirkland.com

tia.trout-perez@kirkland.com

elizabeth.dalmut@kirkland.com

ROBINSON MILLER LLC

Justin T. Quinn

1 Newark Center

19th Floor

Newark, NJ 07102

T: (973) 690-5400

F: (973) 466-2761

jquinn@rwmlegal.com

Attorneys for Defendants Cahill, Gordon 

& Reindell, Cahill, Gordon & Reindell, 

LLP, Howard G. Sloane and Ira J. 

Dembrow:

WILLIAMS & CONOLLY LLP

John Villa

Grant Geyerman

David Blatt

725 12th Street N.W.

Washington, D.C. 20005

T: (202) 434-5000

F: (202) 434-5029

jvilla@wc.com

ggeyerman@wc.com

dblatt@wc.com

CONNELL FOLEY LLP

Robert E. Ryan

Craig S. Demareski

85 Livingston Avenue

Roseland, NJ 07068

T: (973) 535-0500

F: (973) 535-9217

rryan@connellfoley.com

cdemareski@connellfoley.com

Attorneys for Defendant Arthur A. 

Dornbusch, II:

MARINO, TORTORELLA & BOYLE P.C.

Kevin H. Marino

John A. Boyle

437 Southern Boulevard

Chatham, NJ 07928

T: (973) 824-9300

F: (973) 824-8425

kmarino@khmarino.com

jboyle@khmarino.com

Attorneys for Defendant Thomas D. 

Halket:

HEROLD LAW

Eric Tunis

25 Independence Boulevard

Warren, NJ 07059

T: (908) 647-1022

F: (908) 647-7721

etunis@heroldlaw.com

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Attorneys for Non Parties with Entered Appearances

Attorneys for Non-Parties Bevan & 

Associates, Thomas Bevan Esq., Early, 

Lucarelli, Sweeney & Meisenkothen, James 

F. Early LLC, Mark Strauss, Esq. and 

James F. Early 

LEVY KONIGSBERG LLP

Moshe Maimon

Brendan E. Little

800 Third Avenue

11th Fl

New York, NY 10022

T: (212) 605-6282

F: (212) 605-6290

blittle@levylaw.com

mmaimon@lpklaw.com

Attorneys for Non-Parties The Rothenberg 

Law Firm, LLP and Jeffrey Schwartz, Esq. 

STIEF, GROSS & SAGOSKIN, P.C. A.

Robert D. Sokolove, Esq.

Arthur R. Sagoskin, Esq.

2080 Cabot Boulevard West, Suite 201

Langhorne, PA 19047

Telephone: (215) 968-3900

rsokolove@sgsglegal.com

asagoskin@sgsglegal.com

WILENTZ, GOLDMAN & SPITZER, P.A.

Lynne M. Kizis

90 Woodbridge Center Drive, Suite 900

Woodbridge, New Jersey 07095

lkizis@wilentz.com

mfried@wilentz.com

Attorneys for Non-Parties non-party 

Johnson & Johnson

McCARTER & ENGLISH, LLP

David Kott

Zane C. Riester

100 Mulberry Street

Four Gateway Center

Newark, NJ 07102

dkott@mccarter.com

zriester@mccarter.com

2. Set forth a brief description of the case including the causes of action and defenses 

asserted:

Plaintiffs allege that their respective family member decedents were all exposed to 

Defendant BASF Catalysts, LLC’s (formerly Engelhard Corporation” and hereinafter referred to 

as “BASF”) EMTAL talc products which contained asbestos, and in connection with asbestos 

injury claims they and/or their respective decedents were among a targeted class of similarly 

situated victims (asbestos claimants with injury claims arising from Emtal exposure) 

systematically defrauded out of their legal rights to fair compensation by BASF and its former 

corporate and national asbestos defense counsel, Defendant Cahill, Gordon & Reindel (“Cahill”) 

and the named individual defendants.

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Plaintiffs seek class treatment of their Second Amended Complaint’s (“SAC”) claims 

under Fed. R. Civ. P. 23 for (1) fraudulent concealment; (2) common law fraud; and (3) 

conspiracy. Each count has withstood Defendants’ motions to dismiss under Rule 12(b)(6).

Williams v. BASF Catalysts LLC, 765 F.3d 306, 311 (3d Cir. 2014); Williams v. BASF Catalysts, 

LLC, No. 11-1754, 2016 U.S. Dist. LEXIS 46273 (D.N.J. Apr. 5, 2016).The Third Circuit has 

ruled New Jersey law applies to these claims. Id. at. 765 F.3d 316-17; Williams v. BASF 

Catalysts, LLC, Civil Action No. 11-1754, 2017 U.S. Dist. LEXIS 122053, at *5 (D.N.J. Aug. 3, 

2017) ( “The Court of Appeals found that New Jersey law applied and that the parties waived 

their right to argue otherwise.”)

Key opinions in this matter defining Plaintiffs’ claims are:

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

B. Williams v. BASF Catalysts, LLC, No. 11-1754, 2016 U.S. Dist. LEXIS 

46273 (D.N.J. Apr. 5, 2016).

C. Williams v. BASF Catalysts, LLC, Civil Action No. 11-1754, 2017 U.S. 

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

3. Have settlement discussions taken place?

Yes.

Counsel for Plaintiffs, BASF and Cahill voluntarily attempted mediation with the Hon. 

Layn Phillips, U.S.D.J. (Retired) pursuant to a confidential mediation agreement. Details of the 

mediation are confidential and privileged. The Court, however, was made aware of the mediation 

effort and the participants’ impasse. Plaintiffs are not opposed to further mediation of their 

claims.

4. The parties have met pursuant to Fed. R. Civ. P. 26(f).

The parties have had numerous meet and confer conferences. Most recently an in-person 

meeting was held in Newark, NJ on October 3, 2017, and a follow up telephone conference call 

was held on October 7, 2017, with the objective of narrowing the issues and understanding the 

parties’ respective positions in anticipation of submitting one or more proposed discovery plans.

Given the stark disagreements concerning the scope and timing of discovery that remains to be 

completed plaintiffs submit their own proposed plan as directed by Special Discovery Master. 

5. The parties have exchanged the information required by Fed. R. Civ. P. 26(a)(1).

6. Explain any problems in connection with completing the disclosures required by Fed. 

R. Civ. P. 26(a)(1):

See ¶ 8 below.

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7. The parties have conducted discovery other than the above disclosures.

(a) Discovery in Williams:

(i) Document Discovery:

Each side has served the other with various interrogatories, document production

requests, requests for admissions and deposition notices. The responses to these have generated 

multiple issues related to claims of privilege and permissible scope of discovery which are before 

the Court. 

In connection with this discovery the Court has entered a discovery confidentiality order 

(“DCO”). ECF No. 260. Documents not subject to objection or other pending dispute have been 

produced. 

Both sides have subpoenaed third parties for production of documents and eventual 

testimonial depositions. Plaintiffs have subpoenaed Johnson and Johnson (“JNJ”) for production 

of documents related to: (1) the Johnson, Vermont mine and Emtal talc. Prior to Engelhard, JNJ 

had owned the Johnson Vermont mine and processing plant from which Emtal talc was 

produced; and (2) documents related to JNJ’s making one of its research scientists, William 

Ashton, available to serve as Engelhard/BASF’s purported expert affiant on Emtal talc in a 

widely disseminated affidavit referred to in the SAC that is central to litigation. Plaintiffs and 

JNJ have a dispute over confidential document designations and the terms of the existing 

Discovery Confidentiality Order, which contains provisions for third party confidential materials. 

The parties’ dispute has been briefed and is pending before the Court. See ECF Nos. 268, 276 

and 290.

(i) Depositions Noticed by the Plaintiffs

Victoria Kormanicki – On January 19, 2017 Plaintiffs subpoenaed and took the 

deposition of Victoria Komarnicki, Esq. In that deposition it was learned for the first time that 

BASF/Engelhard made material misrepresentations to the federal court as part of the strategy to 

obtain dismissals of thousands of pending asbestos cases.1

 

1 During the late 1980s/early 1990’s Kormanicki and her law firm, Dilworth Paxson, represented 

BASF in asbestos cases brought by the Rothenberg law firm pending at the time in Southeastern 

Pennsylvania. These cases included those filed in or removed to the Eastern District of 

Pennsylvania (“EDPA”) where they were assigned with other asbestos cases to the Hon. Charles 

Weiner, USDJ. Until his death, Judge Weiner presided over every asbestos case pending in the 

EDPA under one of the earliest consolidated asbestos cases judicial management programs in the 

country. He eventually was appointed to preside over the Asbestos MDL established by the Joint 

Panel on Multi-District Litigation where all federal asbestos personal injury cases were 

transferred to the EDPA for pre-trial management. Thus, representations shaping his view of 

Emtal talc were important. Ms. Komarnicki’s deposition explored the dismissal of the 

Southeastern Pennsylvania tire-worker cases brought by the Rothenberg firm which, as the SAC 

discusses, was the first of BASF and Cahill’s numerous voluntary dismissals obtained as a result 

of the false representations that Emtal talc did not contain asbestos and that no evidence existed 

that it did. That plaintiffs’ counsel agreed to these dismissals was used around the nation by 

BASF and Cahill to prove the reliability of the misrepresentations contained in their discovery 

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Charles Carter – Retired Engelhard/BASF manager. Over the course of several years 

dating back to, at least, 1989, Carter signed sworn documents on behalf of Engelhard/BASF that 

are central to this litigation.2

Defense Lawyers who interacted with Named Plaintiffs’ counsel – Plaintiffs have 

served subpoenas for documents and testimony on several BASF local defense counsel who 

represented it in pertinent asbestos lawsuits referred to in the SAC in Ohio (Jack S. Kluznik, 

Esq., Jennifer Reister. Esq.) and in New York (Gideon Mark, Esquire). Each attorney has 

counsel representing him or her. While counsel for the witnesses have not objected to producing 

the witnesses for deposition, BASF has asserted objections to the subpoenas’ document requests, 

including attorney-client and work-product privileges.

Non-Party Cahill Lawyers-Plaintiffs also noticed (and where the witnesses are retired 

have subpoenaed) two Cahill attorneys involved in BASF’s asbestos defense, Allen Joslyn, Esq.

and Scott Martin, as well as Cahill paralegal Michael Sullivan. BASF and Cahill have asserted 

objections to the notices/subpoenas’ document requests, including attorney-client and workproduct privileges. (See infra for description of discovery other BASF outside and in-house 

counsel.)

(ii) Depositions Noticed by Defendants

Depositions of Representative Plaintiffs – BASF, who is leading the defense of this 

case,3has noticed the depositions of all six representative plaintiffs. To date, two of the six class 

 

responses, correspondence and Ashton Affidavit to other asbestos claimants and thus, to 

convince them to dismiss their claims outright or settle cheaply.

During her deposition Ms. Komarnicki revealed that the “no asbestos/no evidence of 

any” misrepresentations were made directly to Judge Weiner in a 1989 letter she signed and sent 

at BASF and Cahill’s behest. Her testimony raised a significant discovery issue as, despite 

numerous document requests that would have covered this correspondence, her testimony was 

the first time its existence was made known to the Williams Plaintiffs’ counsel. Indeed, 

production of the letter to Judge Weiner would have been compelled by production requests by 

them and other lawyers in numerous cases since the fraudulent asbestos defense scheme was first 

unearthed in 2009. These facts are discussed in more detail in Plaintiffs’ Memorandum in 

support of the Rothenberg firm’s Motion for Protective Order. ECF No. 243. BASF’s subpoenas 

directed to the Philadelphia Rothenberg law firm and its lawyers are described infra.

2 Mr. Carter is elderly and currently resides in Georgia. He is represented by counsel with offices 

in Augusta. His attorney is cooperative regarding the scheduling of Carter’s deposition, which 

has been adjourned pending development of a comprehensive deposition schedule. Due to his 

wife’s serious illness Mr. Carter is unable to travel out of town. His counsel has offered his 

Augusta offices as location for Mr. Carter’s deposition when rescheduled. BASF has asserted 

objections, including attorney-client and work-product privileges, to the subpoena’s document 

requests which need to be resolved.

3 Plaintiffs believe BASF is controlling the defense of itself as well as Cahill and its former inhouse counsel co-defendants under a joint defense agreement or arrangement that may include 

indemnification and/or contribution elements. One reason for the belief is the absence of any 

cross claims filed among the co-defendants for contribution or indemnity. The existence and 

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representative plaintiffs (Ms. Holley and Ms. Wengerd) have been deposed. These depositions 

went forward before the entry of Judge Linares’ August 3, 2017 Order and generated many 

objections and other disputes over the scope of discovery and privilege issues. Plaintiffs believe 

that since the entry of the August 3, 2017 Order it has complied with the Court’s directives with 

respect to certain issues that arose at these depositions. However, many other objections and 

disputes were not ruled upon by Judge Linares and have been referred to the Special Discovery 

Master. 

Depositions of Representative Plaintiffs’ Attorneys – BASF has subpoenaed the 

representative plaintiffs’ decedents’ former attorneys and law firms who handled the underlying 

dismissed asbestos law suits: Thomas Bevan Esq., Bevan & Associates, Mark Strauss, Esq.,

James F. Early, Early, Lucarelli, Sweeney & Meisenkothen and James F. Early LLC. Each of 

these non-party lawyers and law firms is represented by separate counsel. Both Plaintiffs’ and 

the lawyers/law firms’ respective counsel have filed objections to BASF’s subpoenas, including 

objections based on (a) attorney-client and work-product privileges; (b) requests going to 

confidential information; (c) proportionality concerns; and (d) scope of discovery (including 

improper absent class member discovery). The parties’ and non-parties’ disputes over these 

subpoenas is briefed and before the Court.4 See ECF 227, 269.

 

terms of the joint defense agreement and related arrangements is a subject of Plaintiffs’ 

discovery that is in controversy before the Court. See ECF Nos. 248, 265 and 266.

4 As guidance on attorney-client and work product issues raised by Plaintiffs and these non-party 

former attorneys/law firms, Judge Linares ruled in his August 3, 2017 Opinion:

Defendants raise the issue "[w]hether Plaintiffs have waived the attorney-client 

privilege and work product protection by placing 'at issue' plaintiffs' reliance on 

what their former counsel allegedly told them (or did not tell them) regarding what 

plaintiffs' former counsel allegedly understood regarding Engelhard's defenses and 

the merits of plaintiffs' underlying asbestos cases.'" (ECF No. 242 at 1). It appears 

that Defendants are entitled to the information as Plaintiffs raised these issues in 

their SAC. (SAC, ECF No. 158 at ¶¶ 12, 19, 228, 230, 329).... The waiver here 

may not be a complete waiver, but rather a limited waiver that permits Defendants 

access to previously privileged information that Plaintiffs have put at issue by 

relying on what the underlying counsel was told and the nature of advice given by 

counsel as a result of what counsel was led to believe. Moreover, the Court agrees 

with Plaintiffs that such information should be "tightly define[d] and control[led]" 

pursuant to Federal Rule of Evidence 502(d). (PI. Rep., ECF No. 308 at 21).

The extent of any such [limited at issue] waiver, and the information to be 

produced, will be subject to the Special Master's review as outlined above. 

Accordingly, the Special Master shall ascertain, and apply all relevant law to the 

documents and objections concerning the attorney client privilege and determine 

what discovery (by way of written and testimonial), if any, Plaintiffs shall produce 

pursuant to the Federal Rule of Civil Procedure 26. Furthermore, the Special Master 

will address whether the Court should enter an order defining and controlling or 

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Depositions of Attorneys for Absent Class Members – BASF has also subpoenaed

attorney Jeffery Schwartz, Esq. along with the Philadelphia law firm he once, but no longer, 

practiced with, the Rothenberg Law Firm (collectively “Rothenberg”). In addition to appearing 

for testimonial examination, BASF’s subpoenas commanded Rothenberg to produce in advance 

its asbestos clients’ files for matters dating back to the 1980s that were long closed. Unbeknowst 

to the Rothenberg firm, since 1989 BASF has used the Rothenberg firm’s dismissals of its 

clients’ Emtal claims, to persuade other lawyers to accept as truthful its false representations and 

the Ashton Affidavit and to dismiss their client’s suits against Engelhard/BASF. Rothenberg 

estimates that there are 1,800 closed client files it would have to locate, retrieve from storage, 

and review to determine if the file contained information responsive to the subpoenas, and, if so 

locate and contact the client (or personal representative given the passage of time) to obtain 

instructions on what to do regarding privileged matter. Rothenberg has moved for an order 

quashing the subpoenas (or provide other necessary and appropriate relief, including 

Rothenberg’s expenses). ECF No. 229. Rothenberg’s objections to the subpoena are based upon 

(a) attorney-client and work product privileges claims; (b) scope of discovery (including 

improper absent class member discovery) and (c) proportionality of putting it to the tremendous

and disruptive burdens BASF’s discovery initiative imposes on it. Both the parties and 

Rothenberg’s counsel have fully briefed the issues relating to the Rothenberg’s motion. For 

docket management purposes Magistrate Judge Dickson has entered an order denying 

Rothenberg’s motion without prejudice. ECF No. 275. During a subsequent status conference he 

clarified that the merits of the motion were not decided. Accordingly, Rothenberg’s Motion to 

Quash is a matter for the Special Discovery Master’s determination.

(b) Relevant discovery in the related Superior Court Sampson litigation.

A major issue of dispute between the parties is the District Court’s access to and 

permitted use of discovery already taken and orders entered in in the related and still pending 

New Jersey Superior Court matter, Sampson v. 3M Co., et al. Each of the individual defendants

has been deposed by the same counsel representing the Williams Plaintiffs in a sealed, special 

discovery master’s proceeding presided over by the Hon. Justice Gary S. Stein (Ret.) in 

Sampson. In 2013 Superior Court Law Division Judge Vincent LeBlon, J.S.C, appointed Justice

Stein to serve as special discovery master and tasked him with creating an evidentiary record for 

the court on which the applicability of New Jersey’s crime-fraud exception could be determined 

as to BASF based upon the spoliation and fraudulent concealment charges alleged by Mrs. 

Sampson against BASF. The fraud and spoliation claims made by Mrs. Sampson are essentially 

the same as alleged here. Copies of the Orders establishing the Sampson Special Discovery 

Masters proceeding are annexed as Exhibit “A”. In sealed proceedings taking over two years to 

complete, Justice Stein presided over depositions of BASF’s former in-house lawyers and former 

and current outside defense counsel and reviewed the deposition transcripts of other witnesses. 

He also received and reviewed hundreds of pages of withheld documents and thousands of pages 

of briefing submitted by counsel for BASF and Mrs. Sampson (as well as from Cahill’s present 

attorneys) on spoliation, fraudulent concealment and the crime-fraud exception. After 

 

otherwise protecting such information and how such information is divulged 

pursuant to Federal Rule of Evidence 502(d).

ECF No. 334 at 20-21.(Citations omitted)

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entertaining extensive oral arguments over several days from counsel for plaintiffs, BASF and 

Cahill (who was permitted to participate to a limited degree), Justice Stein in 2015 issued two 

sealed Recommendation and Report opinions concerning application of New Jersey’s crimefraud exception to BASF’s assertion of attorney-client and work-product privileges to Judge Ana 

C. Viscomi, J.S.C., who had replaced Judge LeBlon as the presiding judge over New Jersey’s 

state-wide asbestos litigation program. 

On July 7, 2017, Judge Viscomi adopted Justice Stein’s SDM Recommendations, with 

one exception, and ordered documents withheld by BASF under claim of privilege be produced 

along with all of the transcripts of depositions taken before the Sampson Special Discovery 

Master.

5 A copy of Judge Viscomi’s July 7 Order, which is publicly available, is annexed as 

Exhibit “B”. However, pursuant the July 7, 2017 Order, both Justice Stein’s and Judge Viscomi’s 

respective opinions remain sealed pending determination of BASF’s application to the Superior 

Court Appellate Division for leave to appeal. BASF’s application is pending. 

Prior to her July 7th ruling, and while the appeals of Justice Stein’s Recommendations 

were before her under advisement, Judge Viscomi amended the Superior Court’s sealing order to 

permit Judge Linares and Magistrate Judge Dickson to have access to Justice Stein’s 

Recommendations and the parties briefing in Sampson relating to them if they desired to review 

same in connection with the management of this case. The access was subject to the District 

Court entering an appropriate protective order under F.R.E. Rule 502(d). Judge Dickson, 

however, informed the parties that he believed the Court could not review the Recommendations 

notwithstanding the Superior Court’s protective order amendment because BASF refused to 

allow former in-house counsel Dornbusch and Halket access to copies of Justice Stein’s

Recommendation opinions. BASF’s refusal is inconsistent with its earlier agreement with Judge 

Stein to allow the Cahill defendants (as well as their insurers) to review copies at the time he 

filed same with the Superior Court under seal and has deprived this Court access to highly 

relevant information gleaned from years of work regarding the dispute before it.

On October 10, 2017 Plaintiff’s counsel in Sampson filed a request with Judge Viscomi 

for a “Show Cause” order why both the District Court (including Special Discovery Master) and 

all defendants in the Williams matter should not have access to Justice Stein’s Recommendations 

as well as the Sampson crime-fraud record, subject to entry of an appropriate order under F.R.E. 

Rule 502(d). 

On October 10, 2017, BASF filed a partially sealed motion to recuse Judge Viscomi, 

which plaintiff Sampson will oppose.

BASF Corporate Representative Deposition – During July and August, 2017 

Plaintiffs’ counsel in Sampson took the deposition of Daniel Steinmetz, a former BASF 

employee who was designated to testify on BASF’s behalf concerning subjects relating to 

 

5 The single exception related to what SPD hearing deposition transcripts should be unsealed and 

publicly available. In response to an objection filed by Plaintiff Sampson to the SDM’s 

Recommendations on what from the SDM proceeding should remained sealed, Judge Viscomi’s 

ruling, set forth in a public order dated July 7, 2017, enlarged the scope of the testimony Justice 

Stein recommend be released from seal to encompass all of the proceeding’s transcripts, 

including those of the individual defendants in this matter. See order of July 7, 2017 in Sampson. 

A true copy is annexed to this submission as Exhibit “B”.

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documents about Emtal in BASF’s possession. Among other things Mr. Steinmetz testified 

BASF’s counsel had in its possession an electronically scanned set of BASF’s asbestos litigation

files from 1984 to present that are word searchable. This searchable database has not been 

provided to Plaintiffs.

8. Plaintiff’s proposed discovery plan:

In view of the nature, time frame and complexity of the issues raised by the pleadings in 

this case, which span three decades of operative events dating back to the 1970s and raise a 

considerable number of privilege issues given that prior litigation is involved, Plaintiffs believe 

discovery should be broken down into discrete phases. Moreover, the time frames for completion 

of each stage should be set separately and adjusted as needed by the Special Discovery Master 

based upon progress and issues encountered during a phase. As described above, there are 

already a number of threshold decisions needed from the Special Master which at this point 

realistically prevent any meaningful and realistic proposal for a pre-trial schedule (including 

class certification and dispositive motions) for the entire case.

Plaintiffs believe that the most efficient and expeditious way to complete discovery in 

accordance with directives of the Third Circuit and Judge Linares is as follows:

1. Decision by the Special Discovery Master Concerning Prerequisite 

Gateway Issues 

2. Discovery Concerning Spoliation Issues

3. Discovery Concerning Misrepresentations and Effect of Those 

Representations

4. Expert Reports and Depositions

(a) Prerequisite Gateway Issues to Be Decided by the Special Discovery Master 6

According to both the Third Circuit and Judge Linares, Plaintiffs are required to prove 

the following elements of liability to establish their fraudulent concealment claim, which is the 

predominant claim in this case: 

1. The defendant had a legal obligation to disclose evidence during an 

existing or pending litigation;

2. the evidence was material to the litigation; 

3. the plaintiff could not reasonably have obtained access to the evidence 

from another source; 

4. the defendant intentionally withheld, altered, or destroyed the evidence 

with purpose to disrupt the litigation; and 

5. the plaintiff was damaged in the underlying action by having to rely on an 

evidential record that did not contain the evidence defendant concealed."

 

6 During the meet and confer the parties were in accord that common issues affecting discovery 

going forward should be decided before anything else. There appears to be, however, some 

disagreement as to what those issues were.

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ECF No. 334 at 12 (citing Williams v. BASF Catalysts LLC, 765 F.3d 306, 320-21 (3d Cir. 2014) 

and Rosenblit v. Zimmerman, 166 N.J. 391,406-07 (2001).)

Based upon this governing law Plaintiffs identify the following as the core issues in this 

matter on which discovery is needed:

1. Whether BASF and Cahill destroyed and/or concealed evidence that Emtal 

talc contained asbestos. 

2. Whether BASF and Cahill routinely and systematically made false and 

misleading statements that Emtal talc did not contain asbestos.

3. Whether BASF and Cahill routinely and systematically made false and 

misleading statements that there was no evidence that Emtal talc contained 

any asbestos.

4. Whether BASF and Cahill's spoliation of evidence had the capacity to and 

did adversely affect and hamper the prosecution of asbestos claims against 

BASF.

5. BASF and Cahill's reasons or motives for their fraud and spoliating 

evidence.

6. What BASF and Cahill each sought, achieved and gained from the 

spoliation of evidence and misrepresentation scheme.

7. Did the Representative Plaintiffs have an asbestos injury claim that BASF 

and Cahill targeted and affected in the course and conduct of their 

fraudulent asbestos defense scheme?

8. Whether the plaintiffs were damaged in the underlying action by having to 

rely on an evidential record that did not contain the evidence defendant 

concealed?

As the Third Circuit opinion and the District Court opinions lay out, the focus of 

Plaintiff’s case is on Defendants’ actions, and plaintiffs’ case is not a re-opener of the thousands 

of cases that were dismissed, compromised or never brought because of Defendants’ fraud. 

Judge Linares observed in the Court’s August 3rd opinion, the requisite “exposition” of the 

underlying cases mentioned in Rosenblit does not require re-litigating the representative (or the 

absent class members’) plaintiffs’ underlying suits. Referring for illustration purposes to core 

issue No. 4 above—[w]hether BASF and Cahill's spoliation of evidence had the capacity to and 

did adversely affect and hamper the prosecution of asbestos claims against BASF—he wrote:

Such discovery may include some of the facts arising from the underlying cases; 

however, the purpose of this discovery does not require a complete "redo" of the 

underlying claims and defenses. The court's analyses in Rosenblit and Abtrax do 

not mean that, generally speaking, this Court must re-open the underlying 

proceedings for the purposes of allowing the parties to prove or disprove the 

merits of the underlying cases. Accordingly, the Special Master should examine 

with care Plaintiffs' objections to discovery requests that [they] assert exceed the 

parameters of the scope set forth herein. As is always the case, discovery requests 

must be tailored to the relevant issues in a case, subject to a rigorously applied 

proportionality analysis.

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ECF No. 334 at 19-20. 

It is plaintiffs’ position that the discovery sought by defendants of the representative 

plaintiffs to date—and is the subject of the parties’ numerous discovery disputes and motions—

goes far beyond that allowed by law and contemplated by Judge Linares. Notably only if 

plaintiffs were attempting to—or permitted to—reopen and retry the underlying causes of action, 

would BASF and its co-defendants have a point that discovery into the merits of the underlying 

case is permitted because they would entitled to test each claim on the merits and corresponding 

class action element as well (commonality, typicality, manageability, damages, etc.). However, 

the Third Circuit, has ruled, and the parties are thereby bound, that the Rooker-Feldman doctrine 

does not permit re-litigating the underlying state court claims. Those claims are not at issue here 

because, as Third Circuit held, this action is not about the underlying cases. Rather, in the 

Court’s words:

“As pleaded, this lawsuit concerns years of purported deceit by Engelhard and 

Cahill. This action is not itself an asbestos injury case, but rather an action about 

Engelhard and Cahill’s conduct when they confronted asbestos injury cases in 

state courts around the country.” 

765 F.3d at 311

Nevertheless, defendants have subpoenaed asbestos plaintiffs’ counsel for the files of 

thousands of absent class members and have openly threatened to subpoena others for thousands 

more. Defendants’ discovery requests in this vein are not supported by either the facts or the law. 

From a class action perspective, the discovery sought by defendants about absent class 

members from non-party attorneys is not supported by the law and is way beyond the bounds of 

proportionality contemplated by the Federal Rules. In addition, the subpoenaed counsel and their 

separate attorneys need to be heard before the sought after discovery relating to absent class 

members is decided. These issues have been briefed before but given the significance of any 

decision, plaintiffs would be happy to update those filings for the Special Master in light of facts 

that have come to light since this issue was originally raised with the Court or to address any 

specific issues or concerns the SDM might have.

In addition, factually there is absolutely no need for this extensive discovery into 

plaintiffs’ or absent class members’ underling cases. The defendants already know why every 

one of the absent class members’ cases was dismissed because they kept records on every 

case and the reason for dismissal. That the defendants already have the information they now 

seek is beyond dispute and can be readily demonstrated. In addition, the defendants have, as 

described above, electronically word searchable litigation files for virtually each and every 

asbestos plaintiff that has ever sued Engelhard or BASF since 1984.

Plaintiffs believe as a threshold matter there is additional evidence listed on the 

defendants’ privilege log relevant to the Defendants’ claimed need for discovery of absent class 

members. Before any decision is made by the Court concerning discovery of absent class 

members the Court should apprise itself of the readily identifiable information and facts that 

plaintiffs believe demonstrate that defendants’ request for such extensive absent class member 

discovery is without merit. 

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Plaintiffs therefore believe the following threshold or “gateway” issues must be first 

decided by the Special Master before depositions of the representative Plaintiffs and their 

counsel, as well as the depositions of defendants, can go forward:

1. Whether defendants are entitled to discovery into underlying litigation 

from the representative plaintiffs beyond the reasons why the underlying 

claims against BASF were dismissed.

2. Whether any discovery of absent class members is necessary, permissible 

and proportional to the needs of the case and the limits and conditions on 

same if permitted.

3. Rulings on evidence being withheld by Defendants under claims of 

privilege directly relating to gateway issues 1 and 2, as well as to the core 

issues in general. 

4. How the depositions of attorneys shall be conducted so that the required 

information is disclosed while preserving any claim of privilege.

With the exception of issues of privilege, these gateway issues are fully briefed for the 

Court as outlined at the end of this submission.

(b) Proposed Initial Discovery Phases

(i) 1

st Phase: Spoliation and Destruction of Evidence.

(A) Spoliation was the first issue raised by BASF of items to address when the parties 

appeared before Judge Dixon on October 14, 2016. See ECF Nos. 231, 241 and 246. Plaintiffs 

agree now that this is the easiest part of this case to resolve and should be handled first.

At issue in this case is the intentional destruction of documents by the defendants. 

Plaintiffs intend to prove that pursuant to the BASF March 7, 1984 purge memo critical, material 

evidence about the testing of Emtal talc for asbestos was purposely gathered up and destroyed 

once BASF and Cahill had settled the Westfall mesothelioma case in October, 1983. However, 

BASF maintains that plaintiffs are unable to prove their spoliation claim based upon BASF’s 

contention that it has located some copies of some evidence concerning the testing of its talc for 

asbestos that BASF and Cahill previously represented to the Plaintiffs’ former counsel did not 

exist.

In response to BASF’s request for a judicial finding in this Court that Emtal documents 

exist, plaintiffs argued BASF’s motion was premature because they needed the depositions of 

BASF and Cahill personnel on the subject of spoliation before any such motion is considered. 

Both BASF and Cahill objected to those depositions arguing that plaintiffs are only entitled to 

one eight hour 30(b)(6) deposition on all issues concerning the fraud and spoliation that occurred 

over more than 30 years. 

Unlike here, extensive discovery has been conducted in the Sampson case in the 

Middlesex County Superior Court on the subject of spoliation, some of which is presently sealed. 

In Sampson, the plaintiff deposed BASF representatives pursuant to Court orders and has 

obtained substantial – but not all – discovery needed from BASF on this topic. Plaintiffs here 

still need the deposition of a Cahill representative as well as defendants Dornbusch and Halket 

on the issue of spoliation.

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To be clear, Plaintiffs do not dispute that the copies of some documents believed to have 

been destroyed, as well as some limited original testing documents have been found. 

Nevertheless, they are prepared to prove that key evidence remains missing in its entirety as a 

result of the intentional destruction of the evidence. Plaintiffs further assert that the copies of 

documents found by BASF are no substitute for the originals of test apparatus outputs or 

hardcopies which are required for proper scientific evaluation. Moreover, establishing that copies 

of some documents have been found while the originals remain missing does not negate the 

material, probative fact that defendants destroyed the originals in execution of an effort to 

suppress evidence needed by asbestos claimants to prove their asbestos injury claims. See

Rosenblit, supra, 166 N.J. at 408-11, 766 A.2d at 759-60 (Holding fact of defendant 

chiropractor’s spoliating alteration of plaintiff’s medical records admissible as substantive 

evidence of defendant’s culpability). 

Also at issue are documents BASF and Cahill continue to withhold under the claims of 

privilege. With respect to this issue plaintiffs are prepared to ask the Special Master to examine 

in camera no more than 25 documents on this subject before making any decisions on this issue.

Once the plaintiffs take the deposition of Cahill witnesses and the Court reviews and 

makes its determinations as to defendants’ documents currently withheld concerning spoliation, 

plaintiffs agree with defendants that the issue will be ripe for determination by the Court possibly 

through cross motions filed by the parties. This entire process could be completed within a 

relative short time span (60 to 90 days) once the Court resolves privilege issues, thereby possibly 

putting to rest a significant part of this case. A proposed schedule on this phase is set out in the 

next section. 

(B) Proposed Discovery Plan Related to Spoliation

1. Plaintiff to identify documents related to spoliation withheld by 

defendants under claim of privilege for SDM review by October 30, 2017.

2. Briefing and argument concerning withheld documents to be completed by 

November 30, 2017.

3. All fact discovery depositions concerning spoliation shall be completed by

January 31, 2018. 

4. Cross motions for Summary Judgment on issue of Spoliation should be 

filed by February 28, , 2018

(ii) 2

nd Phase: Crime Fraud and Misrepresentation Discovery.

A. Issues Concerning Attorney Client and Work Product Privilege.

The second discrete phase of discovery phase should be to address the more complex 

misrepresentation claims issues. This issue requires resolution of the applicability of New 

Jersey’s crime-fraud and/or In re Kozlov’s7necessity exceptions. At the heart of this case is the 

concerted effort of BASF’s in-house attorneys (Dornbusch, Halket) and outside counsel (Cahill) 

to destroy and/or hide critical evidence on Emtal’s asbestos content and then for over 27 years 

 

7

In re Kozlov, 79 N.J. 232 (1979).

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systematically lying that no such evidence existed in order to secure dismissals and achieve

miniscule settlements of asbestos cases against Engelhard/BASF. 

The same lawyers representing BASF in the early 1980s Westfall case—where Engelhard 

scientists swore under oath that tests showed trace to abundant asbestos fibers in Emtal talc—

were intimately involved in the gathering up and destruction or other concealment of inculpating 

evidence in Engelhard/BASF’s possession, custody and control once the Westfall matter settled 

in 1983. BASF’s in-house attorneys and Cahill (as outside national coordinating lawyers) then 

systematically wrote letters (or directed or authorized their writing) to asbestos claimants’ 

counsel and asbestos courts falsely representing that Emtal talc was asbestos free. BASF’s 

lawyers further fashioned false and misleading affidavits to corroborate their false 

representations. In furtherance of their coordinated scheme they also falsely answered (or 

directed local counsel to unwittingly falsely answer) interrogatories, documents requests and 

admission requests stating Emtal did not contain any asbestos. They also wrote (or caused local 

counsel to write) threatening Rule 11 letters to plaintiffs’ counsel who did not agree to dismiss 

claims based upon BASF/Cahill’s representations. And when voluntarily dismissals were not 

forthcoming in a matter for whatever reason, BASF’s lawyers filed (or directed the filing of) 

summary judgment motions which falsely represented that Emtal was asbestos free and there 

was not any evidence that Emtal contained asbestos in order to obtain involuntary dismissals. 

In view of this history, the communications between BASF’s outside counsel and 

BASF/Engelhard’s in-house counsel concerning the concerted misrepresentations are squarely at 

issue and the key (and sole) source of the information is BASF’s in-house and outside counsel. 

The complicit fraud before the Court abrogates any claim of privilege pursuant to the New Jersey 

crime-fraud or In re Kozlov necessity exceptions to attorney-client and work product privileges. 

B. Depositions of the Defendants

As set forth above, questions concerning discussion between attorneys and BASF which 

acknowledge that evidence of asbestos in Emtal existed and the concerted efforts to cover that 

evidence up are relevant to the claims asserted here and upheld by the Third Circuit. 

Plaintiff anticipates taking the following depositions of defendants or their former 

employees:

1. Howard (“Peter”) Sloane, Esq.

2. Arthur A. Dornbusch II, Esq.

3. Thomas Halkett, Esq.8

4. Alan Joslyn, Esq.

5. Michael Sullivan (Cahill paralegal) 

6. Scott Martin, Esq.

7. 30(b)(6) representative of Cahill concerning topics of knowledge and 

misrepresentations in letters, pleadings, motions and collateral materials 

 

8 The depositions of Sloane, Dornbusch and Halket will also involve the issue of spoliation and 

should be prioritized.

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related to litigation matters, as well as claim demographics, procedures 

and outcome statistics.

8. 30(b)(6) representative of Cahill concerning topics of spoliation.

9. 30(b)(6) representative of BASF concerning topics of knowledge and 

misrepresentations in letters, pleadings, motions and collateral materials 

related to litigation matters, as well as claim demographics, procedures 

and outcome statistics.

10. 30(b)(6) representative of BASF concerning topics of spoliation. 

11. 30(b)(6) representative of BASF concerning topics of risk management, 

claims management, claims procedures, contingent liability cost 

accounting and financial reporting, and representations and disclosures by 

Engelhard to BASF in connection with BASF’s corporate acquisition and 

merger of Engelhard in 2006.

The depositions of these defendants or defendant witnesses on the eight core issues 

identified above will evoke claims of privilege that will disrupt the orderly flow and completion 

of the depositions. This situation was addressed by the Superior Court in Sampson under a SDM 

procedure BASF agreed to in order for a record to be developed. See Exhibit “A”. 

Based upon the procedures used in Sampson, plaintiffs propose that all depositions of the 

lawyers who worked for the defendants be taken under seal with the protection of a F.R.E. 

502(d) order under which witnesses be required to answer germane questions that otherwise 

would be protected by a claim of attorney-client and/or work product privileges. Plaintiffs further 

propose that after a deposition is concluded, defendants be given 30 days to designate those 

portions of the depositions one or more of them believe should remain under seal because of 

privilege. Plaintiffs will then have the right to challenge those designations with full briefing 

before the Special Discovery Master. Under this procedure, all parties should have access to the 

deposition transcripts and documents in the Sampson crime-fraud proceeding.

C. Depositions of Third Parties.

As set forth above in section 7, plaintiffs intend to take the depositions of non-party 

witnesses relevant to the claims asserted here. These witnesses include BASF’s local attorneys 

involved in the communications of the misrepresentations to the representative plaintiffs as well 

as witnesses involved or knowledgeable about the cover up and destruction of evidence and 

misrepresentations. Plaintiffs also want depositions of a representative of BASF’s insurance 

carrier and brokers and of the Johnson & Johnson Company. The non-party witnesses who have

been subpoenaed so far have not objected to the taking of their depositions and Plaintiffs are in 

the process of attempting to work out mutually convenient dates for their depositions to take 

place. Third parties who have been subpoenaed for depositions include:

1. Charles Carter

2. Jennifer Riester

3. Gideon Mark

4. Jack Kluznik

5. Howard A. Merten, Esq.

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6. 30(b)(6) representative of Johnson & Johnson.

Notices and subpoenas are prepared for service upon Engelhard/BASF’s insurance 

brokers and companies.

D. Discovery of the Representative Plaintiffs.

As detailed above, plaintiffs have responded to defendants’ multiple sets of 

interrogatories and document requests and produced non-privileged responsive documents to the 

extent documents could be reasonably located, including what they understand to be their 

underlying asbestos claim lawyers’ files relating to their particular cases. Plaintiffs have 

provided the defendants with a privilege log concerning those communications that plaintiffs 

believe are privileged and not subject to discovery. After Judge Linares ruled on the scope of

discovery and held that a limited waiver exists, plaintiffs’ privilege log was reviewed by counsel

and they concluded that no further disclosures were warranted. Although defendants expressed 

disagreement with this position they have not pointed plaintiffs to any specific entry on the 

privilege log that requires further examination. Notwithstanding this review, plaintiffs have 

agreed to review the privilege log once again to verify that no further documents should be 

removed from the list of privileged documents and turned over.

Two of the named plaintiffs. Ms. Holley and Ms. Wengerd, have been deposed. During 

their depositions, a number of areas of questioning were opposed by plaintiffs’ counsel based on 

privilege or limitations on the scope of discovery issues that had been raised prior to and were 

being litigated before the court at the time of the depositions. Plaintiffs believe Judge Linares’s 

August 3rd ruling supports their objections and the instructions given them during the deposition 

with perhaps one exception. Based on Judge Linares’ recent ruling, and subject to the Special 

Master’s further directions on privilege matters, defendants may be permitted to ask 

representative plaintiffs certain limited questions concerning the reason for dismissing cases 

against BASF, including any contemporaneous communications with their former counsel about 

the reasons their or their decedent’s cases against Engelhard were dismissed or settled cheaply.

The precise extent of such questioning should be discussed by the parties with the Special 

Master.

Plaintiffs’ counsel is in the process of working with the families of two of the 

representative plaintiffs, Donna Ware and Nancy Pease, regarding changes needed in view of the 

death of one and changed circumstances of the other. Ms. Ware has died. She was survived by 

her nephew Randall Ware, who inherited Ms. Ware’s estate and, through her, Mr. Ralph Ware’s 

(the Emtal victim) estate as well. Raymond Ware unfortunately also died recently. In turn his 

estate, including the Ralph Wares’ subject claims against BASF, are now being administered by 

his son, Ryan Ware. Ryan Ware lives in West Virginia. Plaintiffs’ Counsel is in communication 

with Ryan Ware on his being substituted in place of plaintiff Donna Ware and continuing the 

Estate’s claim. As to Mrs. Pease, unfortunately she has developed severe dementia and is no 

longer able to continue as the personal representative of the Estate of her deceased father, 

William Clarke. Her sister, Gayle Williams, is taking over that role and upon receipt of her 

letters of administration will be substituted for Mrs. Pease.

E. Depositions of Plaintiffs’ Former Counsel

Defendants have noticed the depositions of counsel to the representative plaintiffs in the 

underlying cases, Mr. Thomas Bevan and Mr. James Early. Both witnesses are represented by 

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counsel who need to be heard on the issue concerning the need for and scope of any deposition. 

Each has filed oppositions to BASF’s motions to enforce subpoenas and determine objections. 

Plaintiffs anticipate that under Judge Linares’ August 3rd Order limited questioning may

be allowed concerning the fundamentals of the underlying litigation against BASF, the witness’s

knowledge about Emtal (including representations and information he received from 

Engelhard/BASF and its attorneys) and why the cases of the representative plaintiffs against 

Engelhard were dismissed or settled. The precise extent of such questioning should be discussed 

by the parties and counsel to the witnesses with the Special Master. Plaintiffs believe, as Judge 

Linares’ August 3rd order allows for, that the depositions of the personal representatives’ former 

counsel should be governed by the same F.R.E. 502(d) order governing the depositions of the 

defendant lawyers.

F. Discovery Schedule Concerning Misrepresentations.

In view of the above, plaintiffs propose the following schedule for this 2nd Phase, which 

overlaps partially with the 1st Phase:

1. Plaintiffs shall identify those documents on the defendants’ privilege logs 

plaintiffs believe relate to discovery of absent class members for in 

camera review by October 31, 2017. Defendants will turn over those 

documents to the Court by November 6, 2017.

2. Plaintiffs shall identify those documents on the defendants’ privilege logs 

plaintiffs believe relate to their fraudulent misrepresentation claim for in 

camera review by the Court by November 15, 2017. Defendants will turn 

over those documents to the Court by November 31, 2017.

3. Any additional briefs concerning discovery of absent class members will 

be submitted by November 15, 2017.

4. After review of the documents turned over the Special Discovery Master

will schedule any briefing and argument that he deems appropriate.

5. Discovery of all non-party witnesses noticed by the plaintiffs shall be 

completed by March 31, 2018.

6. Depositions of any party shall be completed by June 31, 2018.

(iii) Subsequent Phases, Expert Discovery, Class Certification and Pre-trial 

Conference items. 

Plaintiffs believe that it is not practical or realistic at this juncture to determine and set a 

definitive plan or time schedule for determining other discovery phases that may needed as well 

as other pre-trial time table items such as the exchange of expert reports, expert depositions 

scheduling, class certification motion and briefing (which are highly dependent upon discovery 

being taken in, at least, the 1st and 2nd Phases set out above), dispositive motions and final pretrial conference and related tasks. The Special Discovery Master should defer entering a schedule 

as to these items. 

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(c) Comprehensive Initial Discovery Schedule

Based upon the above plaintiffs propose the following comprehensive initial discovery 

schedule:

 Resolution of Gateway Issues by SDM

 Plaintiff to identify documents related to spoliation withheld by 

defendants under claim of privilege for SDM review by October 31, 2017.

 Plaintiffs shall identify those documents on the defendants’ privilege logs 

plaintiffs believe relate to discovery of absent class members for in 

camera review by October 31, 2017. Defendants will turn over those 

documents to the Court by November 6, 2017.

 Plaintiffs shall identify those documents on the defendants’ privilege logs 

plaintiffs believe relate to their fraudulent misrepresentation claim for in 

camera review by the Court by November 15, 2017. Defendants will turn 

over those documents to the Court by November 31, 2017.

 After review of the documents turned over the SDM will schedule any 

briefing and argument that he deems appropriate.

 Any additional briefs concerning discovery of absent class members will 

be submitted by November 15, 2017 or as directed by the SDM.

 Briefing and argument concerning withheld spoliation documents to be 

completed by November 30, 2017 or as directed by the SDM.

 All fact discovery depositions concerning spoliation shall be completed by

January 31, 2018. 

 Cross motions for Summary Judgment on issue of Spoliation should be 

filed by February 28, 2018 or as directed by the SDM.

 Discovery of all non-party witnesses noticed by the plaintiffs shall be 

completed by March 31, 2018.

 Depositions of any party shall be completed by June 31, 2018.

 Expert Disclosure and Discovery to be set at future conference based upon 

the progress of fact discovery 

9. Do you anticipate any special discovery needs (i.e., videotape/telephone depositions, 

problems with out-of-state witnesses or documents, etc.)? If so, please explain.

Yes. Some of the Defendants have principal offices located outside of this District, and 

some of the anticipated key factual witnesses also reside outside of this District. As a result, 

depending on the deponent, videotape/telephone depositions may be used and travel to out-ofstate locations for document review and meetings may be necessary. 

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10. Do you anticipate any issues about disclosure or discovery of electronically stored 

information, including the form or forms in which it should be produced?

None at this time other than possible issue of BASF producing a copy of its searchable

database on asbestos claims, 

11. Do you anticipate entry of a Discovery Confidentiality Order?

One already has been agreed to and entered. See ECF. No. 260. 

12. Do you anticipate any discovery problem(s) not listed above? 

Yes. 

This matter is proceeding concurrently to parallel state court litigation in the Superior 

Court of New Jersey’s Asbestos Program presided over by Judge Viscomi, such as the Sampson 

and Ross cases. Judge Viscomi’s management of the cases is assisted by standing special master, 

Agatha N. Dzikiewicz, Esq. These related New Jersey matters, and especially the Sampson case, 

which has taken over and built upon the record developed in the preceding Paduano case, are 

more advanced in discovery. While this matter was clearing pleading issues, the Superior Court

has devoted considerable time and resources to address and determine the overarching crimefraud exception issues embedded in the fraudulent misrepresentation issues involved in these 

spoliation and fraudulent concealment cases (which issues are being treated separately from the 

document destruction/concealment spoliation issues by the Superior Court). The Superior Court, 

as stated in its July 7th Order, is poised to take up and address the spoliation destruction issues. 

Thus, the issue of coordination of discovery to avoid duplicative discovery needs to addressed. 

Efforts to coordinate discovery in the state and federal matters so far has not been 

successful. Mainly such efforts have been hampered by: (1) BASF’s refusal to allow this Court 

and all of the direct parties before it controlled access to the Superior Court’s crime-fraud record 

and findings. This has impeded the Court’s accessing these materials in connection with 

determining discovery issues notwithstanding Judge Viscomi’s modifying the Superior Court’s 

sealing order to enable this Court to access and review materials such as Justice Stein’s 

Recommendations; and (2) defendants’ unwillingness to agree to multiple 30(b)(6) depositions 

along with extended lengths of examination time to conduct such depositions. Both, as the 

Superior Court has recognized and allowed, are necessary to accommodate 27 years of events 

occurring in many different venues. Plaintiffs request the Special Master take up these issues 

with the parties and develop rulings and processes which can enable the two New Jersey courts 

to coordinate the cases’ discovery and avoid duplication or divergent rulings, especially since 

New Jersey state law governs the matters before both Courts.

As outlined above, there will be numerous depositions of parties’ former or current 

attorneys (none of which are trial counsel in this matter). Protocols and procedures regarding 

depositions of attorneys should be established as a gateway matter in accordance with Judge 

Linares’ August 3rd rulings. Similarly, protocols concerning at issue waiver should be established 

should BASF or any other co-defendant assert reliance on counsel as part of its or their defense. 

See No. 8 above.

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13. State whether this case is appropriate for voluntary arbitration (pursuant to Local Civil 

Rule 201.1 or otherwise) or mediation (pursuant to Local Civil Rule 301.1 or otherwise).

If not, explain why and state whether any such procedure may be appropriate at a later 

time (i.e., after exchange of pretrial disclosures, after completion of depositions, after 

disposition or dispositive motions, etc.): 

Plaintiffs are not opposed to mediation of their claims. It may be beneficial for a new 

mediator to become involved.

14. Is this case appropriate for bifurcation?

No.

15. Interim status conferences should be held regularly in view of the nature of the case.

16. Plaintiffs do not consent to the trial being conducted by a Magistrate Judge.

17. Identify any other issues to address at the Rule 16 Scheduling Conference.

Plaintiffs believe the following motions are outstanding or further action by the Special 

Master is required in light of Judge Linares’ August 3rd Order and Opinion:

1. BASF’s Request for Leave to File a Motion for Findings that Documents Exist 

(Dkt. 231, 241, 246)

2. Plaintiffs’ request for a 502(d) Order and 30(b)(6) Witness Requests (Dkt. 247, ).

3. Plaintiffs’ Motion to Compel Indemnification Agreements (Dkt. 248, 266, 267).

4. BASF/Cahill’s Motion for Sanctions (Dkt. 303, 304, 312, 318) .

5. Johnson & Johnson Subpoena issues (Dkt. 268,276, 290).

6. BASF’s Motion to Enforce Bevan (ND Ohio, transferred to DNJ)/Early 

Subpoenas (Dkt. 257, 259).

7. BASF’s Motion on the Discoverability of Plaintiffs’ Underlying Settlements with 

Other Defendants (Dkt. 250, 267).

8. Rothenberg Motion to Quash (Court’s order denied motion without prejudice 

pending resolution of other motions.) (Dkt.229, 237, 239, 243,251, 275)) 

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Respectfully submitted,

/s/ Christopher M. Placitella

Stewart L. Cohen, Esq.

Christopher M. Placitella, Esq.

Michael Coren, Esq.

Jared M. Placitella, Esq.

COHEN PLACITELLA & ROTH, P.C.

127 Maple Avenue

Red Bank, NJ 07701

T: (732) 747-9003

F: (732) 747-9004

scohen@cprlaw.com

cplacitella@cprlaw.com

hroth@cprlaw.com

mcoren@cprlaw.com

jmplacitella@cprlaw.com

/s/ Jeffrey M. Pollock

Jeffrey M. Pollock, Esq.

FOX ROTHSCHILD LLP

997 Lenox Drive, Building 3

Princeton Pike Corporate Center

Lawrenceville, NJ 08648-2311

T: (609) 896-3600

F: (609) 896-1469

jmpollock@foxrothschild.com 

Attorneys for Plaintiffs and the Putative 

Class.

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