One Newark Center, 19th Floor

Newark, New Jersey 07102

Tel: 973.690.5400 Fax: 973.466.2761 

www.rwmlegal.com

March 9, 2018

VIA ECF

The Honorable Roberto A. Rivera-Soto

Ballard Spahr LLP

210 Lake Drive East, Suite 200

Cherry Hill, New Jersey 08002

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

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

Dear Justice Rivera-Soto:

I write on behalf of defendant BASF Catalysts LLC to request an order 

compelling Bevan & Associates, LPA to sit for an additional Rule 30(b)(6) 

deposition on records issues, this time with a witness who is adequately prepared to 

testify.

The Bevan Firm, one of the most successful asbestos plaintiffs’ firms in Ohio, 

has represented (and apparently still represents) five of the named class 

representatives in past and ongoing asbestos litigation. To resolve outstanding 

questions about document retention and production, this Court ordered a short 

deposition of the Bevan Firm’s records custodian. At the February 21, 2018 

deposition, the records custodian—Thomas Bevan himself, an experienced 

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lawyer—was not prepared to answer very basic questions about the firm’s efforts to 

preserve, locate, and produce relevant materials.

Mr. Bevan’s inability to provide necessary testimony runs afoul of court rules 

for corporate representative depositions. With respect to the few questions Mr. 

Bevan was able to answer, his responses strongly suggest that plaintiffs and the 

Bevan Firm have not adequately preserved and produced relevant documents and 

electronically-stored information. For instance, despite years of active litigation 

involving the named plaintiffs, the Bevan Firm has produced only a few dozen 

emails.

BASF expected that a 60-minute deposition would be able to quickly resolve 

outstanding questions about the Bevan Firm’s documents, but that deposition only 

raised further concerns that responsive documents have not been searched, reviewed, 

and produced. Accordingly, BASF requests that the Bevan Firm be ordered to 

provide a competent witness to testify on records issues. Should the Bevan Firm be 

unable or unwilling to do so, the Court may wish to consider the appointment of an 

independent forensic examiner to ascertain the nature of the Bevan Firm’s electronic 

files and the preservation of those materials.

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PROCEDURAL BACKGROUND

A. The Court Orders The Bevan Firm To Sit For A Records 

Deposition

Following Chief Judge Linares’s August 3, 2017 decision on the scope of 

discovery and plaintiffs’ privilege waiver, this Court granted BASF’s motion to 

compel in relevant part and ordered the Bevan Firm to produce certain client files to 

defendants. See 10/27/17 Order (ECF No. 360). After it was later revealed that the 

Bevan Firm maintained its files in electronic form, contrary to plaintiffs’ counsel’s 

previous suggestions, BASF on November 13, 2017 moved for an order requiring 

the Bevan Firm to make available for deposition a records custodian to “allow the 

parties and the Court to understand exactly how Bevan’s files are maintained.” 

11/13/17 BASF Ltr. to SDM (ECF No. 372). Two weeks later, the Bevan Firm 

produced a limited set of court filings and correspondence apparently retrieved from 

its electronic files, but produced no emails.

Your Honor addressed BASF’s motion, as well as the Bevan Firm’s failure to 

produce emails, at a November 30, 2017 discovery hearing and granted BASF’s 

request for a deposition of the Bevan Firm’s “records custodian or corporate 

representative.” 11/30/17 Hr’g. Tr. 90:22 - 91:6. In doing so, Your Honor explained 

that one purpose of the deposition was to clarify the scope of the search the Bevan 

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Firm conducted for responsive material in its emails and electronic files. Id. at 38:18 

- 39:10. The Bevan Firm later produced 79 emails on February 20, 2018, just hours 

before Mr. Bevan’s deposition. Subsequently, after this Court’s privilege review, 

Bevan produced another 43 emails on February 26, 2018.

B. Mr. Bevan’s February 21, 2018 Deposition

On February 21, 2018, and pursuant to the Court’s Order, BASF deposed the 

Bevan Firm’s corporate representative in Cleveland, Ohio. The Bevan Firm chose 

as its representative Thomas Bevan. Unfortunately, Mr. Bevan failed to prepare for 

his deposition, lacked relevant knowledge about his firm’s documents, and was 

unable to provide basic information about which documents had been searched and 

produced. When asked specifically how he prepared for the deposition, Mr. Bevan 

answered that he merely “looked at the deposition notice” and “thought about what 

[he] did in response to the document request.” Ex. A (2/21/18 T. Bevan Dep. Tr. 

37:12-20).1 He did not otherwise prepare by “talk[ing] to anybody about what [he] 

did” or by “review[ing] any of the documents that had been produced.” Id.

 

1 BASF has attached hereto as Exhibit A a full transcript of Mr. Bevan’s February 

21, 2018 deposition, with Mr. Bevan’s most troubling testimony highlighted for the 

Court’s review.

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As a likely result of his failure to prepare, Mr. Bevan could not provide basic 

information about his firm’s records. For example, though one of the key purposes 

of the deposition was to verify the scope of the Bevan Firm’s search for documents 

included in its production, Mr. Bevan was unaware of what documents had been 

produced. Indeed, he was apparently unaware of even the few emails the Bevan 

Firm had disclosed just the night prior. See id. at 10:23 - 11:9 (“Q. You weren’t 

aware that a batch of Bevan Law Firm e-mails were produced to BASF last night in 

the Williams case? A. I don’t know what was produced last night.”).

Mr. Bevan was likewise unaware of where potentially responsive documents 

might be stored. He admitted that he uses an AOL email account “for all aspects of 

[his] law practice,” id. at 19:1-3, but when asked if “anybody else at the Bevan firm 

use[s] an email account that’s outside of the Bevan email system,” he answered only 

that “I think Pat Walsh uses AOL. You know, probably most of the attorneys are 

using something, you know, private email account,” id. at 20:11-15. He did not 

identify what types of “private email accounts” those attorneys were using. He also 

could not confirm what types of email accounts the Bevan Firm’s paralegals use. 

See id. at 21:18-23.

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With respect to how the Bevan Firm searched for responsive documents, Mr. 

Bevan indicated that he searched his own AOL email account, but he did not make 

any record of the search terms he used. Id. at 17:13-24. He did not recall when he 

performed the search, id. at 18:9-11, or whether he found any responsive documents, 

id. at 18:14-16. When asked which other attorneys at the Bevan Firm had also 

searched their emails, Mr. Bevan mentioned four names “[a]s far as I know,” id. at 

21:17, and again did not know which search terms had been used, beyond a 

speculative list of: “clients’ names, you know, BASF, Eastern Magnesia Talc, talc,” 

id. at 23:14-19. Mr. Bevan does not recall if he told plaintiffs’ counsel what searches 

he was going to run, and could not recall if plaintiffs’ counsel had provided any 

search terms to him. Id. at 23:20 - 24:4. With respect to non-email client files, Mr. 

Bevan did not know if they were searchable. Id. at 46:16 - 47:2.

Mr. Bevan was also unaware whether his emails were preserved or purged. 

Specifically, when asked if either his AOL account or the Bevan Firm’s email 

systems automatically delete emails after a given time, Mr. Bevan did not know. Id.

at 16:4-7 (“Q. Is there any auto delete function in your e-mail system, for example? 

A. I’m not sure what an auto delete function is, so I don’t know. I don’t believe. 

Q. Does the e-mail system at the Bevan Law Firm automatically discard e-mails 

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after a certain period of time? A. I don’t know.); see also id. at 30:12-14. Mr. 

Bevan did confirm, however, that he personally deletes emails from his AOL 

account whenever he believes them to be irrelevant, and that he does not keep all 

emails related to his cases. Id. at 31:3-17. He also did not know whether the Bevan 

Firm had suspended any systems that might automatically delete information. Id. at 

27:11-18.

To the extent Mr. Bevan’s testimony made anything clear, it was what his firm 

had not done: implement any document preservation procedures in connection with 

this litigation. See id. at 15:1-7. Surprisingly, Mr. Bevan testified that “I’m not sure 

what a document hold notice is, but nobody from my law firm ever issued any kind 

of a written document saying not to destroy any documents.” Id.; see also id. at 

15:8-11 (“Q. You’re not even sure what a memoranda like that would look like? A. 

I’ve never seen one in my firm. We don’t operate that way.”). Although Mr. Bevan 

had a vague recollection of a conversation with Mr. Placitella about retaining 

documents related to this litigation, Mr. Bevan could not recall when that 

conversation occurred, noting only that “it would have been sometime in the last ten 

years, but I don’t recall.” Id. at 26:10-14. Nevertheless, Mr. Bevan conceded that 

“we do not have a document retention policy” and “I don’t recall ever receiving a 

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memoranda from Plaintiffs’ counsel, and I know I’ve never issued a memoranda 

regarding preservation of any documents.” Id. at 14:21-25.

Mr. Bevan’s testimony makes clear that he did not prepare for his deposition 

as required by the Federal Rules, thereby depriving BASF of meaningful Courtordered testimony about the Bevan Firm’s files. It remains unclear what Bevan files 

exist, how they were searched, and whether documents were properly preserved. 

BASF therefore moves pursuant to Rule 37 to compel a second deposition of the 

Bevan Firm’s corporate representative.

ARGUMENT

Mr. Bevan was plainly unprepared to represent his law firm as a corporate 

representative. As the Third Circuit has explained, “if a Rule 30(b)(6) witness is 

unable to give useful information he is no more present for the deposition than would 

be a deponent who physically appears for the deposition but sleeps through it.” 

Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 304 (3d Cir. 

2000). Mr. Bevan’s inability to describe the Bevan Firm’s document systems, 

document retention practices, and efforts to identify documents responsive to 

BASF’s subpoena requires a second deposition of the Bevan Firm.

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As set forth above, Mr. Bevan did virtually nothing to prepare for his 

deposition beyond “look[ing] at the deposition notice” and “th[inking] about what 

[he] did in response to the document request.” Ex. A (2/21/18 T. Bevan Dep. 37:12-

20). He was unaware of whether the email systems that he and his employees use 

actually preserve email or automatically purge it over time. Id. at 16:8-14. And he 

was unaware of what types of email systems those employees use in the first place. 

Id. at 21:18-23. Moreover, Mr. Bevan could not recall whether his searches of his 

AOL email account (which he uses exclusively) yielded any documents responsive 

to BASF’s subpoena. Id. at 18:14-16 (“Q. Did you find any responsive documents 

in your AOL email account? A. I don’t recall. I don’t recall.”). He also had no 

record of the searches he actually conducted in an effort to identify responsive 

materials. Id. at 17:13-22. The entire point of BASF’s request for a deposition of 

the Bevan Firm’s records custodian was to understand these issues. But in light of 

Mr. Bevan’s deficient testimony, BASF cannot determine whether the Bevan Firm 

has complied with its preservation and production obligations.

When an organization produces a representative to testify, the witness has a 

duty to prepare—to make a “good faith effort . . . to find out the relevant facts—to 

collect information, review documents, and interview employees with personal 

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knowledge just as a corporate party is expected to do in answering interrogatories.” 

Eisai Inc. v. Sanofi-Aventis U.S., LLC, 2011 WL 5416330, at *16 (D.N.J. Nov. 7, 

2011). The witness must also “educate himself as to all matters that are known or 

reasonably available to the corporation.” In re Neurontin Antitrust Litig., 2011 WL 

2357793, at *5 (D.N.J. June 9, 2011).

When an organization fails to produce a witness with knowledge of the topics 

to be covered, courts order that the organization produce another witness and bear 

the costs of the repeat deposition. See, e.g., Black Horse Lane Assoc., 228 F.3d at 

304 (“[W]e hold that when a witness is designated by a corporate party to speak on 

its behalf pursuant to Rule 30(b)(6), producing an unprepared witness is tantamount 

to a failure to appear that is sanctionable under Rule 37(d).”); Harris v New Jersey, 

259 F.R.D. 89, 95 (D.N.J. 2007) (ordering party to produce second Rule 30(b)(6) 

witness and bear costs and attorney’s fees associated with second deposition).

As with any other topic properly noticed for a Rule 30(b)(6) deposition, the 

duty to prepare has long extended to “topics concerning electronic discovery.” See 

QBE Ins. Corp. v. Jorda Enters., Inc., 277 F.R.D. 676, 694-96 (S.D. Fla. 2012) 

(noting deponent’s inability to discuss electronic discovery); Marker v. Union 

Fidelity Life Ins. Co., 125 F.R.D. 121, 127 (M.D.N.C. 1989) (ordering second Rule 

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30(b)(6) deposition after designee “was unable to answer specific questions 

concerning the retrieval of computerized data”).

In this regard, Mr. Bevan’s stated ignorance of his own firm’s records-keeping 

practices and his inability to articulate what actions it took in responding to BASF’s 

subpoena is comparable to the Rule 30(b)(6) deposition testimony at issue in 

Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 1054279 

(D. Kan. Apr. 9, 2007). There, the district court granted the defendants’ request for 

a second Rule 30(b)(6) deposition when the plaintiff’s originally-designated witness 

could not answer straightforward questions regarding his employer’s recordskeeping procedures and its efforts to respond to discovery requests. Id. at *3.

In granting the defendants’ request for a second deposition, the Heartland 

Surgical Court noted that, similar to Mr. Bevan, the witness “did not know the 

storage or retention policies for some identified servers”; “did not know ... whether 

archived e-mails were searched for responsive discovery documents”; “did not know 

exactly how they [plaintiff’s e-discovery vendor] searched the [] servers”; and “did 

not know ... ‘what all was on’ the CD database that was produced to Defendants.” 

Id. at *4; see also id. at *6.

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Here, BASF made clear that it sought the deposition of a “records custodian” 

to “allow the parties and the Court to understand exactly how Bevan’s files are 

maintained,” as well as the Bevan Firm’s document review and production practices. 

11/13/17 BASF Ltr. to SDM (ECF No. 372) at 9. The Court granted this request. 

See 11/30/17 Order (ECF No. 381) ¶ 4. Mr. Bevan’s testimony does not even come 

close to providing BASF and the Court with the information necessary to ascertain 

“how Bevan’s files are maintained” and whether the Bevan Firm is complying with 

its discovery obligations. The Bevan Firm should be responsible for bearing the 

costs of a second deposition as a result.

A second deposition is further warranted because of the serious questions that 

still exist concerning the Bevan Firm’s production. As noted, the Bevan Firm has 

produced only several dozen emails, even though at issue in this case are underlying 

asbestos cases that were litigated for years when email was a common method of 

communication. There also remain open questions, unanswered by Mr. Bevan, as 

to whether the Bevan Firm properly preserved its files. By Mr. Bevan’s own 

admission, no litigation hold was ever instituted. See Ex. A (2/21/18 T. Bevan Dep. 

Tr. 15:1-7) (“I’m not sure what a document hold notice is, but nobody from my law 

firm ever issued any kind of a written document saying not to destroy any 

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documents.”). As Mr. Bevan acknowledged, “we do not have a document retention 

policy” and “I don’t recall ever receiving a memoranda from Plaintiffs’ counsel, and 

I know I’ve never issued a memoranda regarding preservation of any documents.” 

Id. at 14:21-25; see also Ex. B (3/18/16 Ohio Board of Professional Conduct Ethics 

Guide to Client File Retention 3) (recommending retention of client files for seven 

years and noting that, “[a]lthough maintaining client files for [that] retention period 

may be appropriate in many cases, certain client matters may require a longer or 

possibly an indefinite period of retention”). This testimony only underscores the 

need for BASF fully to understand what Bevan files exist and how they were 

searched.

CONCLUSION

BASF tried to resolve this dispute informally. We asked plaintiffs’ counsel, 

who had defended the deposition, if they would produce a document custodian who 

was prepared to answer relevant questions, but plaintiffs’ counsel declined. We also 

reached out to Bevan’s counsel, Mr. Little, who similarly declined. See Ex. C 

(3/8/18 B. Little to E. Assaf).

For the foregoing reasons, BASF asks the Court to require the Bevan Firm to 

produce a witness prepared to discuss its document retention practices and 

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procedures for responding to BASF’s subpoena. The Bevan Firm should be required 

to pay the costs associated with this re-deposition. To the extent the Bevan Firm 

cannot comply with such an Order, the Court may later wish consider appointing a 

neutral forensic examiner to evaluate the Bevan Firm’s document retention efforts.

Respectfully submitted, 

s/ Justin T. Quinn

 Justin T. Quinn

Counsel for BASF Catalysts LLC

cc: All counsel of record (via ECF)

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