Document 2qa1Bjk4kRE1Dpdkb0p0GxNm7

FILE NAME Owens Illinois OWILL DATE 1988 Aug 28 DOC OWILL112 DOCUMENT DESCRIPTION Legal - Testimony of David Kirsten Vol 1 VOLUME I =~ TESTIMONY OF DAVID KIRSTEIN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 In the and as LESLIE matter of JUDY Administratrix BLACKBURN Individually of the Estate of GERALD BLACKBURN Deceased ET AL Plaintiffs -against- A.C. S. INC ET AL Defendants PROCEEDINGS Held in the above entitled matter at the Trudeau Institute in the Village of Saranac on the 28th day of Lake New York August 1998 SARA J. PERKETT COURT REPORTER 18 Old State Road AuSable Chasm New York 12911 518 834-3013 COUNSEL COUNSEL OF RECORD RECORD 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KEVIN J. KENNEDY Esq . Law 301 Offices of N. Charles Shepard Hoffman St. Suite 901 Baltimore MD 21201 410 539-8404 JOSEPH O'HARA JR Esq Schiff Hardin & White 7200 Sears Tower Chicago IL 60606 312 876-1000 MATTHEW DWYER Esq Smith Dwyer & Bliss 33 Saranac Avenue Lake Placid NY 12946 518 523-4200 TODD SUDDLESON Esq DeHay & Elliston Nationsbank Plaza 901 Main St. Suite Dallas TX 75202 3500 STIPULATIONS STIPULATIONS STIPULATIONS STIPULATIONS TAKEN PURSUANT TO THE TEXAS RULES OF CIVIL PROCEDURE AND THOSE RULES APPLY THROUGHOUT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VOLUME VOLUME VOLUME I CONTENTS Testimony of DAVID KIRSTEIN Examination by Mr. Kennedy- Examination by Mr. O'Hara Examination by Mr. Dwyer 10 Examination by Mr. O'Hara 11 Certificate Page 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 30 52 53 54 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR SUDDLESON Todd Suddelson Just want to state on the record before we get started that this deposition is being taken pursuant to the Texas rules of Civil Procedure those rules will apply to this deposition This deposition was noticed in a number of different cases that the appearance by defendants in these cases should not be considered as waiver of service of process in any other case or an appearance in any other case they have not already been sued in and I think it's agreed that an objection voiced by one defendant is good for all MR KENNEDY Okay DAVID KIRSTEIN having been first duly sworn testified on his oath as follows 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXAMINATION BY MR KENNEDY BY MR KENNEDY Q At the outset this is Kevin Kennedy for the Plaintiffs I just have three initial exhibits I would like to go ahead and enter They are Plaintiff's Kirstein A which is the Plaintiff's Notice of Deposition of Mr. Kirstein Plaintiff's Exhibit Kirstein B which is the cross notice by other defendants for Mr. Kirstein's deposition and Plaintiff's Exhibit Kirstein C which was the notice sent to counsel changing the time to noon Could you state your name A David Kirstein Q please And could you state your home address A 01 address PO Box 31 Rainbow Lake New York And could you state your business A Trudeau Institute PO Box 59 Saranac 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lake New York Q And your date of birth A 9-28-48 Q And could you state your social security number please A 151-44-6353 Q Could you just give me an overview of your educational background starting from high school graduation working forward A With dates Q There is no need A Graduated from Morristown New Jersey high school attended Bates College Received a Bachelor of Science Degree in biology and went into Villanueva Universiatnyd received a Master of Science Degree in biology 0 And by whom are you currently employed A Trudeau Institute Incorporated Q And that is located here in Saranac Lake Yes it is Q And for how long have you been employed by the Trudeau Institute A Twenty years 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 Q Could you from your initial employment with the Trudeau Institute could you give me a review of the different jobs you have held within the Trudeau Institute just a brief description A I was hired and hired in 1973 as a research assistant was promoted to senior research assistant sometime a couple of years later In 1980 I assumed administrative duties as administrative assistant to the director and as those duties expanded over the years there were a couple job title changes but it was basically the same job and I am now chief ) administrator officer Q Okay Mr. Kirstein could you just provide me with a brief summary of the Trudeau Institute and of the Saranac laboratories of the Trudeau Institute foundation MR O'HARA Objection lack of personal knowledge O'Hara Joseph A The Trudeau Institute is a not for profit basic biomedical research institute pursuing basic research in immunology and immunity to infectious diseases It was opened 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in 1964. I was employed in 1973 and previous organizations I don't have any direct knowledge of Q As part of your duty and responsibilities as an employee of the Trudeau institute do you serve as the custodian of historical records and files for the Trudeau institute A Can I speak with counsel MR KENNEDY Certainly MR DWYER Let me speak on the record Just the phraseology custodian Identify myself on the record I'm Matthew Dwyer of Smith Dwyer and Bliss local counsel to Trudeau Institute Incorporated and to the extent that counsel has used the word custodian we object We don't accept any duty with respect to anything that might be shown as documentary exhibits today but we understand that Mr. Kirstein is chief administrativ^' officer here does keep the institute's business records and historical records Okay Let me ask this question then To the extent of your knowledge does the Trudeau Institute maintain documents which were 10 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 made or kept and receiveidn the regular and ordinary course of business A Yes Q Mr. Kirstein have I asked you determine whether certain documents which I have previously obtained copies of through a search of the historical documents of the Saranac Laboratory which are found in the historic records of the Trudeau Institute have you had an opportunity review those documents MR O'HARA Wait Mr. Kirstein I'm going to have to ask you to wait until I can --. A I understand MR O'HARA I would like to have the question read please Q Have I asked you Mr. Kirstein to review documents which I have copied from the historical records which are maintained at the Trudeau Institute MR O'HARA I object to the counsel's characterization of the documents If you want to just ask him if you have asked him to review documents I will let you ask that but I'm not going to let you characterize what 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 the documents are objection MR KENNEDY You have your You can answer MR question again O'HARA Let me hear the MR KENNEDY it back to counsel Do you want to read Pending question was read Q And your answer was Mr. A Yes Kirstein and 0 At identify this point I'm going to those documents for the go ahead record MR O'HARA You're going to identify the documents that you asked Mr. Kirstein to look at MR KENNEDY Correct MR O'HARA Okay going to identify the document How are you will Q I'm about to say that | just relax Counsel if you will followed by start by stating the exhibit a date and just a general number description of the document be it correspondence what have you the from and to memorandum 12 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Kirstein 1 February 12 1943 correspondence from Bowes W to Gardner Kirstein 2 Februar2y3 1943 correspondence Gardner to Bowes Kirstein 3 March 1 1943 correspondence Bowes to Gardner Kirstein 4 March 3 1943 correspondence secretary to Dr. Gardner to Bowes Kirstein 5 March 12 1943 correspondence Gardner to Bowes Kirstein 6 excuse me June 25 1943 correspondence Bowes to Gardner Kirstein 7 June 29 1943 correspondence Gardner to Bowes Kirstein 8 June 29 1943 correspondence Gardner to Bowes MR O'HARA Is that the same one I thought you identified two with the same date MR KENNEDY Correct MR O'HARA And from the same person to the same person Q They appear to be the same document Kirstein 9 July 6 1943 correspondence 13 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 Bowes to Gardner Kirstein 10 July 8 1943 correspondence Gardner to Bowes Kirstein 11 correspondence May 24 1944 Bowes to Gardner Kirstein 12 May 31 1944 correspondence Gardner to Bowes Kirstein 13 May 31 1944 excuse me it's signed by Gardner to Owens Illinois Glass | Company Kirstein 14 November 21 1944 correspondence Bowes ~. MR O'HARA What number did you say that was Q Kirstein 14 correspondence November 21 1944 Bowes to Gardner Kirstein 15 correspondence November 27 1944 Gardner to Bowes Kirstein 16 December 8 1944 correspondence Bowes to Gardner Kirstein 17 Decembe1r2 1944 correspondence Gardner to Bowes Kirstein 18 December 28 1944 correspondence Gardner to Innes N Kirstein 19 correspondence March 29 14 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1945 Gardner to Innes Kirstein 20 correspondence April 18 1946 Bowes to Gardner Kirstein 21 memorandum May 5 1946 from Blinn N to Bowditch W Kirstein 22 correspondence May 13 1946 Gardner to Bowes Kirstein 23 May 13 1946 titled summary of animal inhalation experiments on K - Lo Kirstein 24 correspondence December 24 1946 Bowditch to Hazard A Kirstein 25 it's a handwritten message to a Dr. Packard A Kirstein 26 telegram January 3 1947 from Hazard to Bowditch Kirstein 27 correspondence January 4 1947 Bowditch to Hazard Kirstein 28 correspondence January 8 1947 from Hazard to Bowditch Kirstein 29 correspondence January 10 1947 Bowditch to Hazard Kirstein 30 correspondence January 27 1947 Hazard to Bowditch Kirstein 30 January 27th 1947 correspondence Hazard to Bowditch 15 MR O'HARA Which number was 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that Q I may have repeated that I'm sorry Kirstein 31 January 30 1947 correspondence Bowditch to Hazard Kirstein 32 correspondence February 6th 1947 Hazard to Bowditch Kirstein 33 memorandum February 8 1947 Bowditch to Packard Kirstein 34 correspondence February 10 | 1947 Bowditch to Hazard Kirstein 35 correspondence May 5 1947 LB to Vorwald A MR O'HARA Who is that by You said LB. Q Yes And just so the document is clear it says RE Owens Illinois Glass Company experiment 1012 -- K -~ O. Kirstein 36 memorandum May 5 1947 from Blinn to Bowditch Kirstein 37 memorandum August 26 1947 from Dayton to Bowditch Kirstein 38 memorandum August 27th 1947 from Bowditch to Dayton Kirstein 39 memorandum October 10 1947 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 memorandum from Delahant A to | Vorwald Kirstein 40 October 30 1947 institute interim reporotn animal with Kaylo A inhalation experiment Kirstein 41 October 31 1947 correspondence Vorwald to Hazard with an attachment dated October 30 1947 titled interim report on animal inhalation experiments > with Kaylo Kirstein 42 a handwritten document with the heading Kaylo 0 MR O'HARA Does it have a date a I see a 10 slash 2 at the top And just so we are clear . we will identify the document the first line numbered 1 states progress report due MR O'HARIAs there a Bates stamp number on it Q There is a number at the bottom right , ) -- Bates stamp 000266 A Kirstein 43 correspondence November 4 1947 correspondence Hazard to Vorwald Kirstein 44 correspondence November 4 1947 Bowes to Vorwald 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 Kirstein 45 correspondence November 11 1947 from Blinn to Hazard Kirstein 46 correspondence November 11 1947 Blinn to Bowes Kirstein 47 correspondence November 28 1947 Vorwald to Bowes Kirstein 48 correspondence December 1 1947 Bowes to Vorwald Kirstein 49 a handwritten document dated or referencing letters of December 1 1947 titled RE Reply to Mr. Bowes MR O'HARA Can we have the Bates stamp numbers for those if there are Q The bates stamp for those is a three page document 000232 233 234 Kirstein 50 correspondence December 12 1947 Vorwald to Bowes Kirstein 51 memorandum December 24 1947 from Dayton to Vorwald Kirstein 52 correspondence December 25 1947 Shook 0-0 to Bowditch MR O'HARA Actually on Christmas 0 Kirstein 53 correspondence January 9 1948 Hazard to Vorwald 18 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Kirstein 54 correspondence January 19 1948 Vorwald to Hazard Kirstein 55 January 19 1948 Vorwald to Bowes Kirstein 56 correspondence January 28 1948 Hazard to Vorwald . Kirstein 57 it is it appears to be an invoice purchase order number AS170 Bates stamp 000219 Kirstein 58 correspondence February 9 1948 Blinn to Hazard I want to back up to Kirstein 57 and state the date of 2-3-48 February 3rd 1948 And we just entered 58. Thank you Kirstein 59 correspondence February 20 1948 Robert to Hazard I ask counsel for more Kirstein 60 correspondence March 3 1948 Vorwald to Bowes Kirstein 61 correspondence March 31 1948 Bowes to Vorwald Kirstein 62 correspondence April 26 1948 Vorwald to Bowes Kirstein 63 correspondence September 21 1948 Hazard to Vorwald 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 Kirstein 64 September 24th 1948 Blinn to Hazard . Kirstein 65 correspondence October 6th 1948 LRB initials to Vorwald Kirstein 66 memorandum October 22 1948 from Vorwald to Dayton Kirstein 67 report dated October 30 1948 titled interim report regarding the biological activity of Kaylo dust Kirstein 68 memorandum from Blinn to Dayton November 16 1948 Kirstein 69 correspondence November 16 1948 Vorwald to Bowes Kirstein 70 correspondence 1948 Blinn to Innes December 11 Kirstein 71 correspondence December 13 1948 Shuman A to Blinn Kirstein 72 correspondence 1948 Vorwald to Shuman December 28 Kirstein 73 correspondence December 30 1948 Shuman to Vorwald Kirstein 74 memorandum from Dayton to Vorwald January 20 1949 Kirstein 75 memorandum March 11 from administrative office to Vorwald 1949 20 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Kirstein 76 April 30 1949 interim report regarding the biological activity of Kaylo dust Kirstein 77 May 2 1949 it's an invoice attention to Bowes Kirstein 78 correspondence May 3 1949 Vorwald to Bowes Kirstein 79 May 9 1949 correspondence Grice R secretary to Bowes to Vorwald Kirstein 80 June 18 1949 correspondence from Dayton to Vorwald Kirstein 81 correspondence June 29 1949 Vorwald to Bowes Kirstein 82 memorandum June 29 1949 from Vorwald to Dayton Kirstein 83 correspondence July 6th 1949 Hazard to Vorwald Kirstein 84 memorandum July 8 1949 from Wagner to Blinn and Smith Kirstein 85 July 9 1949 invoice attention to Howard Kirstein 86 correspondence July 14 1949 Vorwald to Howard Kirstein 87 correspondence July 21 1949 21 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Howard to Vorwald Kirstein 88 January 1 1950 interim report regarding the biological activity of Kaylo dust Counsel QUESTION What was the last number again Q That was Kirstein 88 Kirstein 89 correspondence January 5 1950 Hazard to Vorwald Kirstein -- if I didn't say the date for Kirstein 89 it's January 5 1950 Kirstein 90 correspondence January 12 1950 Vorwald to Hazard Kirstein 91 memorandum January 21 1950 from Bailey A to Vorwald Kirstein 92 correspondence February 1 1950 Vorwald to Hazard Kirstein 93 Februar1 y 1950 invoice attention to Howard Kirstein 94 correspondence February 14 1950 Hazard to Vorwald Kirstein 95 memorandum February 17 1950 Blinn to Wagner Kirstein 96 correspondence February 24 1950 Blinn to Hazard 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 . Kirstein 97 correspondence March 7 1950 Hazard Blinn Kirstein 98 correspondence March 10 1950 Blinn to Hazard Kirstein 99 April 3 1950 correspondence Hazard to Vorwald Kirstein 100 correspondence May 18 1950 Hazard to Vorwald Kirstein 101 correspondence May 29 1950 Vorwald to Hazard Kirstein 102 correspondence Vorwald to Hazard June 1 1950 Kirstein 103 telegram June 6th 1950 Hazard to Vorwald Kirstein 104 correspondence June 6th 1950 Blinn to Hazard Kirstein 105 memorandum June 7 1950 from Wagner to Vorwald Kirstein 106 correspondence August 2 1950 Hazard to Vorwald Off the record for a moment I'm going to rest my voice . Off the record Q Okay The last exhibit we just entered 23 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Kirstein 107 correspondence October 14 1950 Vorwald to Hazard Kirstein 108 correspondence October 30 1950 Hazard to Vorwald Kirstein 109 LRB handwritten note Bates stamp 000108 Kirstein 110 correspondence December 12 1950 Hazard to Vorwald Kirstein 111 December 18 1950 correspondence Vorwald to Hazard Kirstein 112 correspondence December 19 1950 Vorwald to Hazard Kirstein 113 correspondence December 26th 1950 Hazard to Vorwald Kirstein 114 correspondence January 15 1951 Hazard to Vorwald Kirstein 115 telegram January 19 1951 Hazard to Vorwald and there is an attached handwritten page signed Hazard Kirstein 116 January 22 1951 correspondence Vorwald to Hazard Kirstein 117 correspondence January 22 1951 Maude Ley Y to Vorwald Kirstein 118 memorandum January 23 1951 from Vorwald to Durkan A and Urban 24 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 A | Kirstein 119 correspondence 1951 Blinn to Hazard January 25 Kirstein 120 memorandum January 31 1951 Urban to Vorwald which has an attached illustration by Urban Kirstein 121 January 31 1951 memorandum from Urban to fiscal department Kirstein 122 memorandum February 6 1951 from Urban to Vorwald Kirstein 123 correspondence February 26th 1951 Urban to Hazard Kirstein 124 handwritten letter March 28 1951 initials LRB to Vorwald Kirstein 125 correspondence May 2 1951 Blinn to Hazard Kirstein 126 correspondence April 30 1951 Hazard to Vorwald Kirstein 127 correspondence May 2 1951 Blinn to Hazard Kirstein 128 --. second MR O'HARA Can we go back for a document MR o KENNEDY To the previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 MR is that right O'HARA What was that 127 MR KENNEDY Yes 125 again MR O'HARA Can you go back to You gave the same date and the same author and recipient is that 125 MR KENNEDY The distinction is has a handwritten note at the bottom that starts with the words called Bill Hazard on phone Saturday May 4 told him dust count at finishing line was eight million MR read the contents I O'HARA don't need you to They Q are Well I the same need to make a distinction letter but this one has the distinction of having that handwritten note at the bottom regarding the phone call to Bill Hazard and 127 does not have that handwritten note at the bottom Was the last one I entered 127 Kirstein 128 May 29 1951 report Kaylo division plant Owens Illinois Glass Company Sayreville New Jersey It's also entitled industrial hygiene survey by the Saranac Laboratory Saranac Lake New York 26 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Kirstein 129 correspondence June 6th 1951 Durkan to Hazard Counsel Kirstein 130 correspondence June 8 1951 Hazard to Vorwald Kirstein 131 correspondence July 11 1951 Hazard to Durkan Kirstein 132 correspondence July 13 1951 Hazard to Vorwald Kirstein 133 correspondence August 7 1951 Hazard to Durkan Kirstein 134 correspondence August 7 1951 Durkan to Hazard Kirstein 135 correspondence August 17 1951 Vorwald to Hazard Kirstein 136 correspondence October 26th 1951 Blinn to Hazard This has an attached handwritten two pages The title of the first handwritten page is industrial hygiene survey Kaylo division plant January 1951 Kirstein 137 correspondence October 29 1951 Hazard to the Trudeau Foundation attention Blinn Kirstein 138 correspondence October 31 1951 Blinn to Hazard 27 . Kirstein 139 correspondence January 4 1952 Hazard to Vorwald This document has an attachment titled samples of dust from Sayreville New Jersey plant for analysis Owens Illinois Glass Company Kirstein 140 January 30 1952 final report titled investigation concerning the capacity of inhaled Kaylo dust to injure the lung 10 Kirstein 141 correspondence February 7 11 1952 Vorwald to Hazard 12 Kirstein 142 correspondence March 11 13 1952 Durkan to Hazard 14 Kirstein 143 correspondence April 8 15 1952 Hazard to Durkan 16 Kirstein 144 May 9 1952 titled report of 17 analysis of Amosite from Sayreville New Jersey 18 plant of Owens Illinois Glass Company 19 Kirstein 145 correspondence May 10 1952 20 Durkan to Hazard with an attached May 9 1952 21 report of analysis of Amosite from Sayreville 22 New Jersey plant of Owens Illinois Glass . 23 Company 24 Kirstein 146 correspondence May 12 1952 25 Hazard to Durkan 28 Kirstein 147 correspondence July 17 1956 Howard to Schepers C This has an attachment the first line reading Bryston Lee age seven sex M. Kirstein 148 handwritten dated Wednesday it appears to be July or January 18 1956 2:30 p.m. titled telephone call from Dr. Shook of Owens Illinois Toledo and Bill Hazard Kirstein 149 telegram July 30 1956 10 Shook to Saranac Laboratory 11 Kirstein 150 correspondence August 2 12 1956 Schepers to Shook with an attachment 13 titled OCD68 medico opinion in respect of 14 occupational chest disease by Schepers and that 15 is dated August 1 1956 16 Kirstein 151 it has a handwritten number 17 55903 titled pathological specimen lungs name 18 Bryston Lee . 19 Kirstein 152 September 4 1956 20 correspondence Schepers to Shook with an 21 attachment titled chemical petrographic 22 A and ray diffraction 23 analysis of lungs 24 Kirstein 153 correspondence September 11 25 1956 Hazard to Schepers 29 10 11 12 13 14 15 16. 17 18 19 20 21 22 23 24 25 Kirstein 154 correspondence October 25 1956 Shook to Schepers Kirstein 155 correspondence November 5 1956 Schepers to Shook with the attachment titled OCD68 m^'dicoopinion in respect of occupational chest disease by Schepers dated November 5 1956 And that concludes the exhibits and Mr. Kirstein I just have some questions for you Have you been provided with the documents that have been marked as Kirstein 1 through Kirstein 154 A Yes today MR O'HARA Are you talking about Q Excuse me Kirstein 155. provided with these documents A Yes I was Were you 0 To the best of your knowledge Mr. Kirstein are these true and accurate copies of the documents which are maintained in the normal and ordinary course of business by the Trudeau Institute foundation MR O'HARA Objection 30 10 11 12 13 14 15 16 17 Q You may answer MR O'HARA Objection leading 0 A -- which I are any You can answer to the best of my knowledge Yes And Mr. Kirstein are these documents read into the record have particularly old of those less than forty years MR O'HARA Objection foundation Objection leading A No they are not Mr. Kirstein that's MR KENNEDY all I have for you Thank you Counsel if counsel has any questions of Mr. Kirstein otherwise w^' are done MR O'HARA I have some questions 18 19 20 21 22 23 24 25 EXAMINATION BY MR O'HARA BY MR O'HARA Q Mr. Kirstein the Kennedy asked you to review documents are dated which Mr. from the 1940s and 1950s correct A Correct Q And how old are you 31 A I will be fifty this year have Q been And some authored of at the documents appear a time when you were to not even born correct 10 11 12 13 14 15 16 17 18 A That's correct Q And the last of the documents was authored or apparently authored at a time when you were approximately eight years old correct A That's correct Q You have no personal knowledge regarding the authors of these documents A That's correct Q You have no personal knowledge regarding the contents of these documents A That's correct Q I think you testified earlier today that you are now chief administrative officer of the Trudeau Institute is that right 19 A Correct 20 01 When did you assume that position 21 A That was earlier this year 22 So in 1998 A 23 Correct Q As of today is there a position at the 25 Trudeau Institute called custodian of records 32 A There not -- Has there ever been a position like | that or named that A During my tenure as administrator no Other than that I can't answer Q Your title is not custodian of records is it 10 11 12 13 A It is not Q To the best of your knowledge the documents which Mr. Kennedy has showed you today were not received by the Trudeau Institute in the normal course of it's business A Well I guess I have to speak with my counsel 15 Q Let me withdraw question and ask 16 something different I think you testified that 17 you started working at the Trudeau Institute in 18 1973 is that right 19 A Correct 20 Your first position was as a research 21 assistant 22 23 24 25 A Correct 10 From the years 1973 through 1980 you were a research assistant A That is correct 33 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q While you were a research assistant at Trudeau you did not have any responsibility for the Saranac Lake documents A That's correct Q During that period of time you had no personal knowledge regarding whether they were stored at the Trudeau Institute is that correct A That's correct Q During that period of time you had no personal knowledge regarding the conditions under which they were stored if they were at the Trudeau Institute correct A Correct Q During that period of time you had no personal knowledge regarding whether those documents had been reviewed by anyone A I observed that they were reviewed when I walked down the hallway in the institute but I did not have any personal involvement in | it Q The first time that you knew of the existence of the Saranac Lake documents was approximately late 1979 or early 1980 is that right 34 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A That's right Q And your first knowledge about these documents was a result of what you just described correct A Correct Q You saw that these documents had been collected in a room at the Trudeau Institute A That's correct Q Before that time you had no knowledge that the documents were even at the Trudeau Institute A That's correct Q You presently have no personal knowledge regarding how the documents were received by the Trudeau Institute A That's correct .. ' You do not have any personal knowledge whether the documents that you observed in late 1979 or early 1980 had been kept in the ordinary course of the Trudeau Institute's business correct A That's correct Q In fact to the best of your knowledge those documents were not received or kept in the ordinary course of the Trudeau Institute's 35 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 business A I believe that's correct Q At the time that you first saw the Saranac documents at the Trudeau Institute you had no personal knowledge regarding the history of the custody or control of those documents A That's correct Q You became an administrative assistant to the director in 1980 is that true A That's true Q And at that time the Saranac Lake documents were not physically located at the Trudeau Institute A That's correct Q As of 1980 the Saranac Lake documents were in the custody of the lawyers for the Trudeau Institute Millbank Tweed correct A Correct 10 And at that time the documents were physically located in New York City A Correct Q And that is the best of your | knowledge A To the best of my knowledge that's correct 36 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And when the documents were located in New York City you were working here in Saranac Lake A That's correct Q From 1980 until 1986 you were the administrator administrative assistant to the director of the Trudeau Institute A Correct Q During that period of time you had no knowledge regarding the way in which the Millbank Tweed lawfirm stored these documents did you A I believe I knew that they were stored in a warehouse facility that was arranged by Millbank Tweed Q And that's all you knew about the manner in which they were stored correct A That's correct Q You had no personal knowledge regarding the custodial practices used by Millbank Tweed in connection with the documents did you A That's correct I did not Q You had no personal knowledge regarding whether these documents were always 37 located at that warehouse do you A I do not 01 You don't know all of the people who actually looked at the documents during the period of time they were stored at Millbank Tweed A I do not Q You don't know whether documents may have been added or removed from the Saranac 10 documents during the time they were stored at 11 Millbank Tweed correct 12 A That's correct 13 Q In 1986 Millbank Tweed actually 14 transferred some of the Saranac Lake documents 15 back to the Trudeau Institute 16 A That's correct 17 Q You did not prepare the documents for 18 transfer back to the Trudeau Institute from 19 Millbank Tweed did you 20 A I did not 21 Q You did not physically transport the 22 documents back from New York City to Saranac 23 Lake 24 A I did not 25 Q Millbank Tweed decided what documents 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 to send back to the Trudeau Institute isn't that correct A That's correct Q Millbank Tweed made the transportation arrangements for the documents back from New York City to the Trudeau Institute correct A That's correct Q Originally how many documents were transferred from the Trudeau Institute to Millbank Tweed in 1980 A I do not know Q In 1986 when the documents were transferred back from Millbank Tweed to the Trudeau Institut hoew many boxes were there A I believe there were thirty Q Do you know whether the Millbank Tweed lawyers cartoned or packaged the documents while they were in the possession and custody of | Millbank Tweed A I do not know Q When the documents were received from Millbank Tweed at the Trudeau Institute in 1986 you did not consider those documents to be Trudeau Institute business records did you A I did not , 39 _l 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 When you received the documents back from Millbank Tweed in 1986 they were not maintained by the Trudeau Institute in the normal course of the Trudeau Institute's business isn't that correct A That is correct Q Trudeau did not consider itself in 1986 to have a legal responsibility to preserve these documents did it A No. Q In 1998 the Trudeau Institute does not consider itself to have a legal responsibility to preserve these documents does it A No. When you received the documents from Millbank Tweed you did not prepare an index for the documents correct A That's correct Q When the documents were returned to the Trudeau Institute from Millbank Tweed in 1986 there was no index that was included correct A Correct And to your knowledge even at the present time there is no index for these 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 documents A Correct Q After the Trudeau Institute received the Saranac Lake documents from Millbank Tweed in 1986 you casually thumbed through the contents of the documents right A That's correct Q At that time you determined that there were hundreds of different file folders in those boxes right A Yes Q When the Trudeau Institute took custody of the documents in 1986 these were not the kinds of documents that were used by the people who were doing research at the Trudeau Institute were they " A No. Q To your knowledge none of the scientists who have ever worked at the Trudeau Institute have ever used any of the Saranac Lake documents in connection with their research isn't that right A That's correct The Trudeau Institute merely has custody of the documents and makes them 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 . available to attorneys and parties who 10 in litigation correct A Correct Q Since the Saranac Lake documents have been in the custody of the Trudeau Institute since 1986 they have been reviewed by attorneys and parties in litigation correct A Correct Q right | A That has happened on many occasions Yes Q Over fifty times approximately A That's a reasonable approximation Q Hundreds of people have personally reviewed those documents isn't that correct A That's correct Q When people come to review the Saranac Lake documents at the Trudeau Institute no one from the Trudeau Institute personally supervises the people who look at the documents isn't that right A That's right Q The Trudeau Institute makes the documents available to people who want to review them and assumes they will take any of the 42 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 original documents correct A Yes Q You don't know since 1986 until the present time whether anybody who has reviewed the documents here at the Trudeau Institute has taken any of the original documents correct A Yes Q You don't know that correct A I do not know that Q The copying is done the copying of the Saranac Lake documents is done by the people who review the documents here at the Trudeau Institute right A Yes Q The Trudeau Institute makes a copying machine available to the people who want to review the documents is that right A Yes Q The originals are returned to the file by the A people who Yes copy them . is that correct Q The people from the Trudeau Institute don't personally return the original documents to the file A They do not 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 Q The Trudeau Institute does not keep a record of what copies are made by the people who come to review the Saranac Lake documents do they A No. Q knowing The which Trudeau Institute has documents are removed way no of from the files when they that correct are reviewed for copying isn't A That's correct Q The Trudeau Institute has no way of knowing removed whether documents have been permanently from the Saranac Lake files correct A Correct Q You know from your casual review of are these files that there gaps in the Bate numbers in the documents that are in the files correct A I don't know that Q You do know however that some lawyers who have come to look at the documents have complained on occasion that there are appear to be documents missing correct A Correct Q You yourself have never read the 44 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 individual documents that comprise the Saranac Lake documents have you A No I have not Q You have no more than a very general knowledge relating to the contents of those documents correct A Correct Q The first time you looked at any specific Saranac Lake documents was when Mr. Kennedy asked you to look at them in connection with this deposition is that right A The first time with respect to these documents The first time that you looked at any specific Saranac Lake documents was in connection with Mr. Kennedy's request that you look at them in connection with this deposition is that correct . A Yes Q So in the eighteen years that you were an administrative assistant you did not look at any specific individual Saranac Lake documents did you other than the casual review of the documents that you did in 1986 A That's not strictly accurate 45 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 Okay In what way isn't it accurate A At other depositions similar to this one I have been asked to authenticate documents and in doing that I have looked at a particular document Q Other than in connection with requests by lawyers at depositions to have you look at specific documents you have not reviewed specific documents from Lake boxes have you personally the Saranac A I have I have sent a couple of documents 0 requested to the institute's own attorneys In those occasions have the attorneys that you obtain particular documents and forward those documents to them A NO Q In those circumstances have you personally gone through the documents and picked out selected documents to send to your attorney A That's correct Q Institute You're talking attorneys about the Trudeau A Yes Q And those requests have been in connection with discovery requests filed in 46 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 connection with litigation A Correct Other than in a litigation context you have never personally reviewed any specific Saranac Lake documents A I have not Q You did not look at the documents that Mr. Kennedy gave you as part of any research work that's going on at the Trudeau Institute A That's true Q The review of the documents that you conducted of the documents that Mr. Kennedy gave you was at his request correct A Correct Q You did not spend much time reviewing the documents that Mr. Kennedy asked you to review did you MR KENNEDY Objection Q You can answer A I did not 0 Approximately how much time did you spend looking at the one hundred and fifty documents that Mr. Kennedy asked you to review A Thirty minutes Q You did not read the documents by 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 page did you I did not 0 There are hundreds of pages in the hundred and fifty documents which Mr. Kennedy asked you to review are there not A There are 0 You did not check to see whether the documents that Mr. Kennedy gave you to review actually had a boxes that are corresponding original in the in the custody of the Trudeau Institute did you A I did not 0 Nobody at the Trudeau Institute checked to see whether there were corresponding originals to the copies that Mr. Kennedy showed you and asked you to review A That is correct Q documents You have that Mr. no personal knowledge if the Kennedy showed you for review are copies of documents that are actually in the boxes which are labeled as Saranac Lake documents A That's correct -- showed If the documents that Mr. Kennedy you for review are from those boxes you 10 11 12 13 44 15 16 17 18 19 20 21 22 23 24 25 48 don't know what boxes they are from A Correct correct Q You don't know whether the documents that Mr. Kennedy showed you showed you for review were part of the documents which were collected in 1979 at the Trudeau Institute before they were sent to Millbank Tweed A I do not do you Q You don't know whether the documents Mr. Kennedy showed you for review were documents which were located at period 1980 to 1986 Millbank Tweed during the A I do not Q You don't know whether the documents Mr. Kennedy showed you for review were documents that were returned by Millbank Tweed in 1986 A I do not the You documents have that no personal Mr. Kennedy knowledge where showed you for review originally came from do you . A I do not Q regarding You the have no personal knowledge contents of the documents Mr. Kennedy asked you to review A I do not 49 0 You have no personal knowledge regarding the history of the custody and control of the documents Mr. Kennedy asked you to review A I do not Q You have no personal knowledge regarding the authenticitoyf the documents Mr. Kennedy asked you to review A I do not 10 Q You don't know anything about the 11 original source of the Saranac Lake documents 12 do you 13 A I do not 14 Q After the documents were returned by 15 Millbank Tweed to the Trudeau Institute in 1986 16 Trudeau made an effort to pare down the number 17 of boxes that they received did they not 18 A They did 19 Q You participateidn that paring down 20 process did you not 21 A I did 22 Q You participated in the removal of 23 documents from those files at that time 24 A I did 25 Q And I think that paring down occurred 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50 . in approximately 1987 A I believe that's right At that time documents were removed from the Saranac Lake files that had been received back from Millbank Tweed correct A Correct Q And at that time documents which were removed from the Saranac Lake files were destroyed is that correct A Correct Q You did not keep track of the documents removed from the files did you A No. Q No index was made of the documents that were removed from the files were there A No. Q Or was there To the best of your recollection thousands of pages of documents from the Saranac Lake files were destroyed by the Trudeau Institute at the time of the paring down process correct A Correct Q The number of boxes was reduced from approximately thirty boxes to fifteen boxes correct 51 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Correct Q At that time the labels on the boxes were changed by a purchasing agent at the Trudeau Institute is that correct A Correct Q Can you refresh my memory regarding the name of the purchasing agent who did that A It was Shirley Preston Q She did not personal knowledge regarding the contents of the boxes did she A She did not MR O'HARA May I have a second to review my notes I'm not sure I have anything else MR KENNEDY While counsel is reviewing his notes does any other counsel have any questions No. MR O'HARA I don't think I have anything further MR KENNEDY Mr. Kirstein it appears that we are completed Your counsel has some questions 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 52 EXAMINATION BY MR . BY MR DWYER DWYER Q Mr. Kirstein can you clarify what the process was of paring down and eliminating some documents in 1987 when they came back from Millbank Tweed A Under advice of the institute's counsel for these matters who is Raymond Wisk Mr. Wisk came to the institute we reviewed the approximately thirty agreed that those cartons cartons and together that were filled with reprints or offprints as you may call them of the medical literature were not unique documents in that the information in those could be found in any medical library and we agreed that for matters of economy and storage that those things that could be replaced elsewhere could be destroyed Q Has there been since that time any other paring down process that you have personal knowledge of A There has been none MR DWYER Okay MR KENNEDY Counsel MR O'HARA Hold on one second 53 10 1 12 13 14 15 16 17 18 19. 20 21 22 23 24 25 EXAMINATION BY MR O'HARA BY MR O'HARA Q Mr. Kirstein did you personally make this decision regarding what materials to discard and what materials to keep amongst the documents that were returned from Millbank Tweed to the Trudeau Institute A Yes I did Q And did you make those selections on the advice of the lawyers for the Trudeau Institute A Yes I did MR O'HARA Thank you MR KENNEDY I have no questions MR DWYER I just request that Mr. Kirstein be provided with a copy an extra copy of the deposition want Mr. MR KENNEDY I'm sorry Do you Kirstein to sign or do you waive MR DWYER I'll waive that but I would like a copy of institute's records the deposition for the you MR KENNEDY I'll do that Thank