Document 5b4zK7KR5nnyNLg8QMpR4xD25
NO. 93-03155
CLYDE CURTIS CUPPARD, et al. Plaintiffs,
V. KEENE CORPORATION, et al.,
Defendants.
IN THE DISTRICT COURT TRAVIS COUNTY, TEXAS 331ST JUDICIAL DISTRICT
DEFENDANT WESTINGHOUSE ELECTRIC CORPORATION'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL AND SUPPLEMENTAL RESPONSE AND
OBJECTIONS TO PLAINTIFFS' INTERROGATORIES - ~
TO: Plaintiffs, by and through their attorney of record, Russell W. Budd, Baron & Budd, 3102 Oak Lawn Avenue, Suite 1100, Dallas, Texas 75219.
COMES NOW, Westinghouse Electric Corporation ("Westinghouse") and files this its
response to Plaintiffs' Motion to Compel along with its Supplemental Response and Objections
to Plaintiffs' Interrogatories served on or about November 23, 1993, and would show the Court
the following:
I.
BACKGROUND
Plaintiffs propounded interrogatories to Westinghouse relating to the authenticity and admissibility of four documents on November 23, 1993. These interrogatories were served in
DEFENDANT WESTINGHOUSE ELECTRIC CORPORATION'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL AND SUPPLEMENTAL RESPONSE AND OBJECTIONS TO PLAIftnriFFS'INTERROGATORIES - Page 1
conjunction with similar interrogatories relating to approximately 30 additional documents in three other cases pending before this court.1
Plaintiffs seek responses regarding these documents notwithstanding their past similar
discovery regarding over 100 other documents in other cases pending either in Dallas or Travis
County. Plaintiffs are apparently trying to authenticate all documents, approximately 800 in
number, listed as exhibits against Westinghouse. Many of these exhibits are patently irrelevant
to these cases and are inadmissible. Westinghouse has reasonably attempted to cooperate with
Plaintiffs' counsel, Baron & Budd, while appropriately objecting to the burdensome nature of these requests. Westinghouse again objects to these requests in their entirety_but provides further reasonable responses.
n.
OBJECTIONS TO INTERROGATORIES
Some of the documents in issue in these interrogatories presumably were produced
previously by Westinghouse to Plaintiffs along with literally thousands of other documents. However, many of these documents were not prepared by Westinghouse and Westinghouse
cannot attest to their authenticity. Likewise, the origin of many documents cannot be confirmed
because Plaintiffs have supplied incomplete or illegible copies or copies which contain
extraneous information.
Westinghouse also objects to these interrogatories as burdensome in that they require an
unreasonable amount of investigation and attempt to force Westinghouse to do Plaintiffs
1 Swinson, et al. v. Keene Corporation, et al., Cause No. 9216996, 201st District Court, Travis County, Texas; Burnham, et al. v. Keene Corporation, et al.. Cause No. 93-01206, 250th District Court, Travis County, Texas; Perkins et al. v. Keene Corporation, et al., 353rd District Court, Travis County, Texas. DEFENDANT WESTINGHOUSE ELECTRIC CORPORATION'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL AND SUPPLEMENTAL RESPONSE AND OBJECTIONS TO PLAINTIFFS'INTERROGATORIES - Page 2
investigative work. As noted above, some of the documents were neither generated nor produced by Westinghouse. Others were produced by Westinghouse, but it would require unreasonable efforts to track down the original source of the document and the circumstances of its creation and retention. Westinghouse is a multinational corporation that has been in existence for over 100 years in dozens of locations and has employed hundreds of thousands of employees. Finally, some of the documents have been the subject of extensive deposition questioning of their authors, recipients, or others with knowledge of them. However, instead of requesting information regarding authenticity from the author or source of the document or reviewing these depositions, Plaintiffs instead attempt to shift the burden of investigation to Westinghouse.
Finally, Westinghouse objects to these interrogatories as burdensome based upon the number of documents in issue. Plaintiffs assertion in their Motion to Compel that they are seeking authentication of only four documents is misleading. As noted above, Plaintiffs have already served authentication interrogatories for over 100 other documents and have designated 779 exhibits against Westinghouse in this or other litigation. With 779 documents in issue and without court protection, Westinghouse can look forward to an endless supply of such requests. The purported authentication of these 779 exhibits is no less burdensome merely because Plaintiffs served these interrogatories on a piece-by-piece basis. The interrogatories go beyond the scope of proper discovery and are an abuse of the discovery process. Therefore, Westinghouse objects to Plaintiffs interrogatories in their entirety.
DEFENDANT WESTINGHOUSE ELECTRIC CORPORATION'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL AND SUPPLEMENTAL RESPONSE AND OBJECTIONS TO PLAINTTFFS'INTERROGATORIES - Page 3
m.
RESPONSE
Subject to the foregoing objections Westinghouse has reasonably attempted to provide
further responses. However, these responses are made without in any way waiving: 1) the right
to object, on the grounds of competency, relevancy, materiality, hearsay, or any other proper
grounds, to the use of any such information for any purpose, in whole or in part, in any
subsequent stage or proceeding in this action or any other action; or 2) the right to object on any
and all grounds, at any time, to any other discovery procedure relating to the subject matter of
these interrogatories.
INTERROGATORIES
INTERROGATORY NO. 1.: For each document listed below, please answer whether
such document is a true and correct duplicate of a genuine and authentic document.
EXHIBIT NO.
DESCRIPTION
ee) WH-759
deleted
ff) WH-768
Westinghouse memo dated August 29, 1989 from R. A. Cancilla; re: Asbestos Notification. ANSWER: This document appears to be a true and correct duplicate of a genuine and authentic document.
gg) WH-769
Soil & Material Engineers letter dated May
20,1989
from J. Phillips, B. Lester and Mike Cashio to Mike
Cannon re: Westinghouse Micarta Division, Hampton
South Carolina, Soil & Material Engineers Project #1238-
89-164, with Asbestos Survey.
ANSWER: Although this document appears to be a copy
of material provided by Westinghouse to Plaintiff, this
document is not a Westinghouse generated document but
was merely found in Westinghouse's files. Accordingly
Westinghouse can provide little information regarding its
authenticity.
hh) WH-771
deleted
DEFENDANT WESTINGHOUSE ELECTRIC CORPORATION'S RESPONSE TO PLAINTIFFS'
MOTION TO COMPEL AND SUPPLEMENTAL RESPONSE AND OBJECTIONS TO PLAINHFFS'JNTERROGATORIES - Page 4
ii) WH-772 jj) WH-773
deleted deleted
INTERROGATORY NO. 2.: For each document listed below, please answer whether such document was kept and/or generated in the regular course of a regularly conducted business activity of any Westinghouse Entity by an employee or representative of any Westinghouse Entity with knowledge of the act, event, condition or opinion recorded.
EXHIBIT NO. cc) WH-756
dd) WH-758
ee) WH-759 ff) WH-768 gg) WH-769
DESCRIPTION
Memo dated April 17, 1974 to G. T. Laney 're: Fire Retardant Sales. ANSWER: See general objection. Westinghouse further objects to this interrogatory as vague and ambiguous because the document provided is incomplete. Westinghouse can not adequately respond to this interrogatory without further information.
Asbestos. Measurement Requirements, Compliance, Impact, Medical Requirements, Permissible Concentrations, Record Requirements, Regulated Area. March, 1976. ANSWER: No.. This document was produced bv Westinghouse but its source is unknown.
deleted
Westinghouse memo dated August 29, 1989 from R. A. Cancilla; re: Asbestos Notification. ANSWER: Yes.
Soil & Material Engineers letter dated May 20, 1989 from J. Phillips, B. Lester and Mike Cashio to Mike Cannon re: Westinghouse Micarta Division, Hampton South Carolina, Soil & Material Engineers Project #1238-89-164, with Asbestos Survey. ANSWER: Because this document was not generated by Westinghouse, Westinghouse can provide no information regarding its creation.
DEFENDANT WESTINGHOUSE ELECTRIC CORPORATION'S RESPONSE TO PLAINTIFFS'
MOTION TO COMPEL AND SUPPLEMENTAL RESPONSE AND OBJECTIONS TO PLAINTIFFS'INTERROGATORIES - Page 5
hh) WH-771 ii) WH-772
deleted deleted
jj) WH-773
deleted
INTERROGATORY NO. 3.: For each document listed below, please answer whether
such document was found in your files in such a condition as to create no suspicion concerning
its authenticity.
EXHIBIT NO.
DESCRIPTION
cc) WH-756
Memo dated April 17, 1974 to G. T. Laney re: Fire Retardant Sales. ANSWER: See objection and response to Interrogatory Number 2 above.
dd) WH-758
Asbestos. Measurement Requirements, Compliance, Impact, Medical Requirements, Permissible Concentrations, Record Requirements, Regulated Area. March, 1976. ANSWER: Because the source of this document is unknown, Westinghouse can provide no information regarding its authenticity.
ee) WH-759
deleted
ff) WH-768
Westinghouse memo dated August 29, 1989 from R. A. Cancilla; re: Asbestos Notification. ANSWER: This document contains extraneous information which causes a suspicion concerning its authenticity.
gg) WH-769
Soil & Material Engineers letter dated May 20, 1989 from J. Phillips, B. Lester and Mike Cashio to Mike Cannon re: Westinghouse Micarta Division, Hampton South Carolina, Soil & Material Engineers Project #1238-89-164, with Asbestos Survey. ANSWER: Because this document was not generated bv Westinghouse, Westinghouse can provide no information regarding its authenticity.
hh) WH-771
deleted
ii) WH-772
deleted
DEFENDANT WESTINGHOUSE ELECTRIC CORPORATION'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL AND SUPPLEMENTAL RESPONSE AND OBJECTIONS TO PLAINTIFFS'INTERROGATORIES - Page 6
jj) WH-773
deleted
INTERROGATORY NO. 4.: Has Westinghouse stipulated or agreed to the authenticity
of any of the documents referenced in Interrogatory No. 2 with any person prior to the date of
these Interrogatories,
cc) WH-756
Memo dated April 17, 1974 to G. T. Laney re: Fire Retardant Sales. ANSWER: Westinghouse objects to responding to this interrogatory for this incomplete document. Subject to the foregoing objections, Westinghouse responds that it is not aware of any stipulation to the authenticity of this document in its current state. However, Westinghouse may have stated that portions of this document were provided by Westinghouse via document production in various cases.
dd) WH-758
Asbestos. Measurement Requirements, Compliance, Impact, Medical Requirements, Permissible Concentrations, Record Requirements, Regulated Area. March, 1976. ANSWER: Westinghouse is not aware of any stipulation to the authenticity of this document except to the extent Westinghouse may have stated that the document was provided by Westinghouse via document production in various cases.
ff) WH-768
Westinghouse memo dated August 29, 1989 from R. A. CanriHa; re: Asbestos Notification. ANSWER: Westinghouse is not aware of any stipulation to the authenticity of this document except to the extent Westinghouse may have stated that the document was provided by Westinghouse via document production in various cases.
gg) WH-769
Soil & Material Engineers letter dated May 20, 1989 from J. Phillips, B. Lester and Mike Cashio to Mike Cannon re: Westinghouse Micarta Division, Hampton South Carolina, Soil & Material Engineers Project #1238-89-164, with Asbestos Survey. ANSWER: Westinghouse is not aware of any stipulation to the authenticity of this document except to the extent Westinghouse may have stated that the document was provided by Westinghouse via document production in various cases.
DEFENDANT WESTINGHOUSE ELECTRIC CORPORATION'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL AND SUPPLEMENTAL RESPONSE AND OBJECTIONS TO PLAINTIFFS'INTERROGATORIES - Page 7
WHEREFORE, PREMISES CONSIDERED, Westinghouse prays that after notice and
hearing this Court sustain these objections and issue and order protecting Westinghouse from
answering these or any further interrogatories regarding authentication of Plaintiffs' exhibits
designated against Westinghouse, and for such other and further relief to which Westinghouse
may be entitled.
Respectfully submitted, VIAL, HAMILTON, KOCH & KNOX 1717 Main Street, Suite 4400 Dallas, Texas 75201-4605 (214) 712-4400 FAX (214) 712-4402
By: : MARK A. HENDRIX State Bar No. 09460500
ROBERT E. THACKSTON State Bar No. 00785487
ATTORNEYS FOR WESTINGHOUSE CORPORATION
DEFENDANT ELECTRIC
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the above and foregoing instrument has been served
on counsel for Plaintiffs via hand delivery and to all other counsel of record via regular mail on
this theday of January, 1994.
ROBERT E. THACKSTON
J:\LJT\CJH\D1SC\2292W.1
DEFENDANT WESTINGHOUSE ELECTRIC CORPORATION'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL AND SUPPLEMENTAL RESPONSE AND OBJECTIONS TO PLAINTIFFS'INTERROGATORIES - Page 8