Document 6NXyyJazgedMD1yqKdXXdRgo

IN THE MATTER OF: Schlumberger Industries, Inc, . vs, American Insurance Company, et al Cause No. 95-CP-23-3135 (HFF) Deposition of Thomas M. Bistline June 16, 1998 INTERIM COURT REPORTING 811 Dallas, Suite 1150 Houston, Texas 77002-5912 (713) 650-3500 WATER PCB-00039552 2 1 IN THE COURT OF COMMON PLEAS 2 STATE OF SOUTH CAROLINA 3 COUNTY OF GREENVILLE 4 5 SCHLUMBERGER INDUSTRIES, INC., 6 7 Plaint iff, 8 9 vs. C.A. NO. 95-CP-23-3135 (HFF) 10 11 AMERICAN INSURANCE COMPANY, 12 ET AL. , 13 14 De fendant s. 15 16 Deposition of THOMAS M. BISTLINE, taken on 17 be half of the Defendan.t London Market Insurers, at 18 t h e office2s of Husch & Eppenberger, 100 North 1 9 Br oadway, in the City of St. Louis, State of 2 0 Mi s souri, on the 161h day of June, 1998, before Dawn 2 1 L . McTeer,i Registered Professional Reporter and 2 2 No tary Publie. 23 24 25 INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039553 3 1 APPEARANCES OF COUNSEL : 2 3 FOR THE PLAINTIFF: 4 Mr. L. Gray Geddie , Jr. 5 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 6 The Ogletree Building 7 300 North Main Street 8 Post Office Box 2757 9 Greenville, SC 29602 10 (864)271-1300 11 12 FOR THE DEFENDANT LONDON MARKET INSURERS: 13 Mr. Jay Russe11 Sever 14 Phelps Dunbar, L.L.P. 15 Texaco Center 1 6 400 Poydras Street 17 New Orleans, LA 70130-3245 18 (504)566-1311 19 20 21 22 23 24 25 INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039554 1 FOR THE DEFENDANT U.S. FIRE AND INTERNATIONAL 2 INSURANCE COMPANIES: 3 Ms. Pamela J. Roberts 4 Nexsen, Pruet, Jacobs & Pollard, L.L.P. 5 1441 Main Street, Ste. 1500 6 Post Office Drawer 2426 7 Columbia, SC 29202 8 (803)253-8234 9 10 FOR THE WITNESS: 11 Ms. Carol A. Rutter 12 Husch & Eppenberger, L.L.C. 13 100 North Broadway 14 St. Louis, MO 63102 15 (314)421-4800 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING Houston 713-650-3500 4 WATER PCB-00039555 1 INDEX 2 3 Examination by Mr. Sever 4 Examination by Mr. Geddie 5 6 EXHIBITS 7 8 Bis tline Deposit ion Exhibit 1 9 Bistline Deposit ion Exhibit 2 10 Bistline Deposition Exhibit 3 11 Bistline Deposition Exhibit 4 12 Bistline Deposition Exhibit 5 13 Bistline Deposition Exhibit 6 14 Bistline Deposition Exhibit 7 15 Bistline Deposition Exhibit 8 16 Bistline Deposition Exhibit 9 17 Bistline Deposition Exhibit 10 18 Bistline Deposition Exhibit 11 19 Bis tline Deposition Exhibit 12 20 Bistline Deposition Exhibit 13 21 Bistline Deposition Exhibit 14 22 Bistline Deposition Exhibit 15 23 Bistline Deposition Exhibit 16 24 Bis 11ine Deposition Exhibit 17 25 Bistline Deposition Exhibit 1 8 PAGE 7 56 23 24 26 30 30 30 30 32 32 32 32 32 32 32 32 32 34 34 INTERIM COURT REPORTING Houston 713-650-3500 5 WATER PCB-00039556 1 Plaintif f's Deposition Exhibit 1 2 Plaint if f1s Deposition Exhibit 2 3 Plaintiff 1s Deposition Exhibit 3 4 Plaintif f's Deposition Exhibit 4 5 Plaintiff's Deposition Exhibit 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING Houston 713-650-3500 6 56 56 56 56 56 WATER PCB-00039557 7 1 THOMAS M. BISTLINE, 2 of lawful age, having been first duly sworn to 3 testify the truth, the whole truth, and nothing but 4 the truth in the case aforesaid, deposes and says in 5 reply to oral interrogatories propounded as follows, 6 to-wit : 7 EXAMINATION 8 QUESTIONS BY MR. SEVER: 9 Q: Could you, please, state your name for the 10 record, sir? 11 A: My name is Thomas M. Bistline . 12 Q: Would you spell your last name, please ? 13 A : B-I-S-T-L-I-N-E. 14 Q : Good morning , Mr . Bis 11 ine . My name is Jay 15 Sever. I represent London Market Insurers also 16 sometimes referred to as Lloyds of London or 17 Lloyds. We are defendants in an insurance coverage 18 suit that is entitled Schlumberger versus American 19 Insurance, et a 1. We 1 re here today to talk to you 2 0 about some documents and about your role as records 2 1 custodian. If you have any questions at all or you 2 2 need further explanation of anything that I'm trying 23 to put to you, please don't hesitate to ask me to 24 clarify. I see that you are a lawyer, so I don't 25 have to give you the rest of the speech I usually INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039558 ______________________ ___________ _____________________________________ 8 1 give deponents, most of whom in this case have been 2 over the age of 60. Could I ask you to give your 3 home address, please? 4 A: My home address is 1518 2 Isleview, one word, 5 I-S-L-E-V-I-E-W, Drive in Chesterfield, Missouri . 6 Q: Your bu siness addres s, please ? 7 A: 10 3 0 0 Olive Boulevard, Creve Coeur, 63131 . 8 I have to look at my business cord. 6 3 16 6 will 9 work. 10 Q: I see you work for Solutia, Inc.? 11 A : Correct . 12 Q : Who is that? 13 A: Solutia, Inc. is a company that was created 14 on September 1st, 1997, as a spin-off from Monsanto 15 Company. We are the chemical businesses formerly 16 operated by Monsanto . 17 Q: Does Monsanto still have a headquarters here 18 in the St. Louis area? 19 A : Yes . 2 0 Q: I take it Solutia also has its headquarters 21 in the St. Louis area? 2 2 A : That's correct . 2 3 Q: Solutia' s headquarters are near this address 24 10 3 0 0 01ive Boulevard? 25 A: That's our corporate headquarters . INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039559 9 1 Q: You work for the general counse1's office 2 for Solutia? 3 A: Yes. 4 Q: You are an a11 orney ? 5 A; Correct . 6 Q: Your boss is whom? 7 A : Carl Barnickol, B-A-R-N-I-C-K-O-L. 8 Q : His position is general counse1? 9 A : General counsel . 1 0 Q: How long have you held this position, I 11 gue s s, since you were created in September 1 of 12 '97? That's the beginning of your posit ion for 13 Solutia . My que s t ion goes to how long have you been 14 assistant general counsel? 15 A: I've been assistant general counsel first at 16 Monsanto since September 1, 1986. 17 Q: You were an assistant general counsel for 18 Monsanto Company at that time? 19 A : That's correc t . 20 Q: You were based here in St. Lou is? 2 1 A: Correct . 2 2 Q: Where, by the way, was Monsanto' s 23 headquarters? 24 A: 800 North Lindbergh Boulevard in St. Louis. 25 Q: If I may, how far away from that are you INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039560 10 1 now, Solutia? 2 As Right acros s Lindbergh Boulevard. S olutia, 3 in fact, occupies what was the west campus of 4 Monsanto. 5 Q: Were you with Monsanto prior to 19 8 6 when 6 you went to the general counsel 1s office? 7 A: Yes. 8 Q: What did you do then? 9 A: I started with Monsanto in February of 10 19 8 2. I came on as a litigation attorney, and was 11 eventually promoted to assistant general counse1 . 12 Q: As a litigation attorney, I take it that you 13 were an adj unc t s omehow to the general couns e 1 ' s 14 office? 15 A: We call it the 1 aw department, and I've been 16 a member of Monsanto 1 s and now Solutia's 1 aw 17 department since February 1982. 18 Q: Between ' 8 2 and '86, I take it, that you 19 were actively dealing with cases? 20 A : That 1s correct . 2 1 Q: Litigating? 2 2 A : Correct . 23 Q : After you trans ferred into the At t o rney 24 General, I'm sorry, general counsel's office in 25 1 9 8 6, what did you do? What was the general nature? INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039561 _______ ________ __________________________________________________ _____________ 11 1 A: Let me correct the first part of that 2 question . I've always been, as you phrased it, part 3 of the general counsel 1s office. As I said earlier, 4 we call that the law department . I've been a member 5 of the Monsanto and now Solutia law department since . 6 February 1, 1982. That affiliation does not change. 7 Q: I take it the nature of your duties changed 8 in 1986? 9 A: To an extent . 10 Q : How SO? 11 A: When I became assistant general counsel , I 12 inherited s ome admin is trative duties that I did not 13 previously have. 14 Q : Were part was one of those admini s t rat ive 15 duties dealing in some manner with production of 16 Monsanto records ? 17 A: No, I had that assignment prior to bee oming 1 8 assistant general counsel . 19 Q: You did. When did you take on that 2 0 assignment? 2 1 A: Well, to some extent, I've had it since I 2 2 began with Monsanto. Specifically with respect to 2 3 documents re 1ating to PCBs, if that's where we' re 24 headed, I inherited that responsibility in January 2 5 of 19 8 2. I think I mi sspoke on the date I became INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039562 12 1 assistant general counsel . 11 was '88, not '86. 2 Q: Just so I'm clear, you j oined Monsanto a s a 3 lawyer? 4 A: That's correct . 5 Q: That was in 19 8 2 ? 6 A: That' s correct . 7 Q: You held a position in the law department, 8 but as a litigation attorney, between 182 and '88? 9 A: First as a litigation attorney f rom '8 2 10 until about '83, and then as assistant litigation 11 counsel for a year, and then as 1itigation counsel 12 for a couple of years before I became assistant 13 general counsel . 14 Q: Now, let's go ahead and get to what happened 15 in 1985 when you were given the job to oversee the 16 production of PCB records . What was the nature of 17 that job change ? 18 A : We have had PCB 1itiga tion pending. 1 9 Monsanto has had PCB litigation pending for a number 20 of years . The attorney who had previously been 2 1 responsible for those cases , Mr . Joseph Nassif, was 2 2 invo1ved in a large trial , and our supervisor at the 2 3 time asked me if I would take on responsibility for 24 the PCB cases that were then pending in January '85. 2 5 Q: Mr . Nassif ' s last name was spe1led how ? INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039563 13 1 A: N-A-S-S-I-F. 2 Q: Your supervisor at the time was ? 3 A : Robert Barends. 4 Q : He was general counse1? 5 A : No , he was associate general couns e1 a t 6 Monsanto Company. 7 Q: Let me ask you, when you took on that role, 8. what did you do? 9 A : After I said yes ? 10 Q : After you said yes. 11 A : I went abou t f ami1iarizing my self with what 12 cases were pending, what information Monsanto had by 13 way of documents and other personal type sources of 14 information . I spent an ext ensive amount of time 15 with counse1 representing Monsanto around the 1 6 country to 1 earn the status of the various cases 17 that were then pending and what s t ra t egy had been 18 put in place . In general , took over the day-to-day 19 management and responsibilities for the litigation 2 0 as it existed then. 2 1 Q : I'm t a Iking now specifically about your role 2 2 in dealing with document productions. I take it it 2 3 was a larger role dealing with the ongoing cases? 2 4 A: Right . When I s ay I took responsibility for 2 5 the PCB cases, that entailed, as part of the duty, INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039564 ___________________________________________________ ___________ _________ 14 1 becoming custodian of Monsanto's documents re1 ating 2 to PCBs. 3 Q: I see. There was a 1a rge r role in actually 4 dealing with PCB litigation? 5 As That's correct . 6 Q: I take it that Monsanto was a party in some 7 of this litigation? 8 A : Yes, that's correct. 9 Q: Were you involved in any way in litigation 10 in which Monsanto was not a party? 11 MS. RUTTER: At what time, counsel? 12 MR . S EVER: During the period we're t alking 13 here after 1985. 14 A: Only to the extent that Monsanto would 15 receive subpoenas seeking production of documents or 16 other information to which we would re spond a s a 17 third party. 18 Q : (By Mr . Sever) Were you actively 19 representing Monsanto when Monsanto was a party? 2 0 A: Again, we're talking about PCB cases? 2 1 Q : Yes, I'm s o rry. 2 2 A : I was in-house counsel for Monsanto . I had 2 3 responsibility for the management of the cases . 2 4 Q: You held this position and fulfilled these 2 5 duties for how long? INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039565 15 1 A: By these duties you mean with respect to 2 PCB? 3 Q : PCBs cases. 4 A: Since January 1, 19 8 5. 5 Q: Continuing through today? 6 A : That's correct. 7 Q: So does Solutia have some relationship with 8 the PCB cases? 9 A: By agreement with Monsanto, at the time that 10 Solutia was created, a spin-off, we have under taken 11 to manage and direct the litigation. Monsanto has 12 given us the authority to do that in our name just 13 as I was doing it when I was a Monsanto employee . 14 Q: Now, we've given you some document s here to 15 look at , which we thank you for t aking the t ime to 16 do today this morning. Let me ask you did you bring 17 anything with you to the deposition? 18 A : No . 19 Q: Do you have indexes of the records that you 2 0 are cus todian over, PCB records ? 2 1 A: 11 depends on how you want to define index. 2 2 I don' t have a list of document s written down, no . 23 Q: You have adata base? 24 A: Yes. 25 Q: When you were going to look for a group of INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039566 _____________________________________________________________ ____________________________ 16 1 documents, say, in this collection of PCB oriented 2 records, you refer to your data base? 3 A: That's the source of the documents . That's 4 correct. 5 Q: Are the PCB related documents kept by 6 Solutia, or are they still in the Monsanto bui1ding? 7 A: The originals of the documents are stored at 8 an off-site facility. We call it the records 9 center, which is, I guess , a couple of miles within 10 the Monsanto campus . They're in boxes in that 11 f a ci1ity. 12 Q : I'm sorry . 11 was the records center? 13 A : Records center, yes. 14 Q: Do you have access to information which 15 would inform you as to how many times these records 16 or subsets of these records have been produced to 17 other parties? 1 8 MS. RUTTER : I'm going to ob j ect to that 19 que s tion, counsel . I think you're ge 11ing into an 2 0 area that involves privilege and work product. 2 1 MR. SEVER : Well, let me tell you what I'm 2 2 after here . What I'm t rying to es tab1ish is that, 23 when we're dealing with the s e productions, these 24 earlier produ c tions in the Whitfield act ion and 25 productions that may have predated his fulfilling INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039567 17 1 his role as custodian of PCB records, in general, 2 that he has s ome way, if ne ce s s ary, to go back and 3 see what was produced and to who. That's all I'm 4 trying to get a t . I don't see anything privileged 5 there . 11 is merely a custodian type of question. 6 MS. RUTTER: Since this gets into or at 7 least very close to an area of privilege, I think I 8 better consult briefly with my client in re lation to 9 this issue. 10 (Discussion off the record.) 11 MS. RUTTER : I think Mr. Bis 11ine c an answer 12 the question that you have posed . May the court 13 reporter read it back. 14 (The requested port ion of the record read 15 by the reporter.) 16 A: The answer to that que s tion is ye s. 17 Q: (By Mr. Sever) Let me ask you now, because 1 8 I think we'll get to it later, are you aware there 19 has been s ome litigation invo1ving S chlumbe rge r that 2 0 is previous to this insurance coverage 1itigation 2 1 that you're currently here for? 2 2 A: Specifically with regard to? 2 3 Q : PCBs . 24 A : Yes, I'm aware of that. 25 Q: I'11 represent to you that there is an INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039568 18 1 action that was filed in 1976 that we refer to as, 2 among ourse1ves, the Whitfield action. Are you, 3 generally, familiar with the litigation I'm talking 4 about ? 5 A : I'm f ami1iar with the Whitfield litigation, 6 a 1 though I don't think it was filed in 19 76. 11 was 7 19 85. 8 MR. GEDDIE: Actually it was December of 9 ' 84 . 10 A: Yes, I'm familiar with the Whitfield action. 11 Q: (By Mr. Sever) I appreciate it. Are you 12 also aware that Monsanto made a production of sorts 13 in that act ion? 14 A: Yes. 15 MS . RUTTER : Ob j ect ion to the form of the 16 que stion. 17 Q: (By Mr . Sever) Are you privy to - - are you 18 ab1e to by looking at your records determine what 19 document s were produced in the Whit fie1d act ion by 2 0 Monsanto? 2 1 A: Yes. 22 Q: Did you, by the way, have active management 23 of Monsanto's role in that case? 24 A: Yes . 25 Q: So that, even though the filing of the suit INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039569 _____________________________________________________________ __________ ___________________19 1 predated your taking over for Mr. Nassif, you 2 actually took over management of the case after he 3 left, correct? 4 As That 1s correct. 5 Q: Did Mr. Nassif have a role with respect to 6 the Whit field case? 7 A: He may have. I don't recall precisely what 8 status the case was at the time . 9 Q : I can probably short - circuit that. Who was 10 it that was responsible for the document production, 11 the documents that were eventually produced in the 12 Whitfield action at Monsanto headquarters ? 13 A: I was the attorney in charge of the defense 14 of Monsanto at Monsanto in the Whitfield case on and 15 af ter J anuary of 19 8 5. 16 Q: I don't know when the actual production was 17 made . Do you recall whether you were the person 18 that was overseeing product ion of documents in that 19 case? 2 0 A: Yes, I was . 2 1 Q: That's all I wanted to know . Let's get to 2 2 the records that you looked at this morning . I take 23 it you were given two boxes of records and a few 24 other stacks of documents and that you looked 25 through everything that you were given this morning? INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039570 __ ________________________________________________________________________________________2 0 1 A: I didn't look at every page. I, generally, 2 looked through the collections of documents. 3 Q: Now, I gave you two boxes of documents . I 4 see from looking at the documents that you have 5 brought back into the deposition that you were nice 6 enough or someone was nice enough to put the 7 documents into different files . Were you 8 responsib1e for that? 9 A: 11 was done a t my request . I didn't do it 1 0 persona1ly. 11 Q: What I ' m going to do is, in the process of 12 asking you to identify whether these records are 13 Monsanto business records or kept in the ordinary 14 course of Monsanto's busine s s, go through these 15 files individually so that we can determine, I 16 guess, whether you can authenticate them. 17 A: Fine. 18 Q: Let me ask you one more general question 19 before we start going through these . I take it that 2 0 the labeling of the files that I'm about to go 2 1 through was done based on the subj ect matter of the 2 2 contents that are now in the files? 2 3 A : I'm no t sure what you mean by sub j e c t 24 matter. Essentially what we did was go through the 25 two boxes of files. Based upon a fairly quick INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039571 21 1 review, tried to separate them in to documents that 2 we produced in response to the subpoena in this 3 action, documents, which we may not have produced 4 them, we believe are Monsanto documents ..and either 5 those we can1t identify or are not Monsanto 6 documents. 7 0s Were you re sponsible for responding to a 8 subpoena that was served in connection with this 9 act ion to Mon s ant o last year s ome time ? 10 A: I believe in April of '97, yes. 11 Q: Monsanto bate stamped and produced a group 12 of documents ? 13 As Yes. 14 Q s Do you recollect approximately how many 15 boxes of document s that was? 16 A s We produ c e d , I think, around 4 0 boxes of 17 documents, 110,000 pages or something in that 18 vicinity. 19 Q s I think that's close to accurate. I'll 20 repre sent to you what we've tried to do is cull 2 1 through those for those that we're interested in in 2 2 this case. That ' s what we have here today . Let me 2 3 ask you, there's a bates number on some of these 24 documents that starts letters MONS . Is that 2 5 Monsanto's bates number? INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039572 ______________________________________________________________________ __ _______________ 22 1 A: Yes, that is Monsanto . 2 Q: Are these documents bate stamped with any 3 other type of bates number, or is this the only one, 4 MONS? 5 A: You mean a Monsanto number, one that 6 originated at Monsanto? 7 Q : Yes. 8 A: I believe some of the documents may bear one 9 that was applied to them by Monsanto for the 10 Whitfield case. 11 Q: Does that begin with the letter designation 12 SHL? 13 A : NO . 14 Q: The documents that - - all of the documents 15 that you produced in response to this 1997 subpoena 16 bore the MONS designation prior to the bates number? 17 A: That's correct . Not all of them. Let's see 18 if I can separate this out. Maybe I misspoke in my 19 last answer. The documents - - most of the 2 0 documents, I would s ay 3 4 , 3 5 boxes of the documents 2 1 we produced last year, bore the MONS number. There 2 2 were five or six boxes of documents which were 23 produced somewhat later than the first 34 or 35 24 that, I think, bore the SHL prefix . 25 Q : I think that's accurate . INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039573 ______________ ______________ __________________________ ________ ____________________________ 23 1 A: The documents we produced in response had 2 the MONS or SHL prefix on them. Sorry for the 3 confusion. 4 Q; I'm going to deal with thos e, that 5 production and those series of documents first. 6 Then we'll go on to the other documents . 7 A: Fine. 8 Q: All right. The first file I have here, 9 which we ' re going to go ahead and mark as Exhibit A 10 to the deposition, is labeled, "Manufacturing Specs 11 Monsanto Docs. " If you could look at these 12 document s for me and ascertain whether these are 13 document s kept in the ordinary course of Monsanto's 14 busines s, I would app re ciat e it. 15 (Bistline Deposition Exhibit No. 1 marked for 16 identification.) 17 Q: (By Mr . Sever) Have you had a chance to 18 look at Exhibit 1? 19 A: Yes, I have. 2 0 Q: Are those records that are kept in the 2 1 ordinary course of Monsanto' s business ? 2 2 A : Yes. 2 3 Q: Those are records that are currently kept 2 4 under your custodianship? 2 5 A : That's correct. INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039574 24 1 Q: They were records that were produced in 2 response to the 1997 subpoena? 3 A: Yes. 4 Q: Exhib i t 2 here is a f older labeled, 5 "Labels . " There appears to be two types of bates 6 number ranges contained in this exhibit, one being 7 the MONS number that we referred to earlier and the 8 other being the SHL number. I will ask you, though, 9 to do the same review as you did for Exhibit 1, 10 please. 11 (Bistline Deposition Exhibit No. 2 marked for 12 identification.) 13 Q: (By Mr. Sever) Have you had a chance to 14 review that stack? 15 A: Yes, I have. 16 Q: Are those documents kept in the ordinary 17 course of Monsanto's business? 18 A: Yes. 19 Q: They were produced, also, in response to the 2 0 19 9 7 subpoena? 2 1 A : Yes . 22 Q: The Exhibit 2 appears to contain a group of 23 Monsanto labels, correct? 24 A : That' s correct. 2 5 Q: Most of those label s are for the product INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039575 25 1 Arochlor? 2 A: I believe they all relate in one form or 3 another, at least as far as I could tell, to 4 Arochlor products . i. 5 Q: I s there a way for us to gauge a date by 6 referencing to or looking at the document itself? 7 A: There may be some indications on s ome of 8 these labels . The others on the date which the 9 label was current is not obvious just by looking at 10 it. . 11 Q : As records cus t odian, are you someone who is 12 in a position to know the particular date of lab els 13 of Arochlor? 14 A: I couldn't look at the label and tell you 15 with any degree of confidence when it was used. 16 That would be s ome thing that would require a great 17 deal of research. 18 Q: Is there a person at Monsanto that you would 19 deem mos t knowledgeable about that subj e c t mat ter? 2 0 A : No . 2 1 Q : Not at Monsanto ? 22 A : No . 23 Q: What about at Solutia? 24 A: Not even at Solutia. 2 5 Q: 11 would be someone who is retired, I INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039576 _________________________________________________________________________________________ 26 1 suppose ? 2 A: Perhaps some retired person could look a t 3 it . 4 Q: Do you know who I'm referring to when I s ay 5 Mr. Pappageorge ? 6 A: Yes I do . 7 Q: Would he be someone that would be most 8 knowledgeable? 9 A: Mr. Pappageorge would be for the types of 10 warnings and the dates in which those warnings were 11 current. I don't think even Mr. Pappageorge will be 12 able to look at a particular label and say I know 13 this label was used on this type of container during 14 these dates . I'm not sure there' s anybody that 15 could give you that kind of encyclopedic 16 information. 17 Q: You're not fami1iar with the document that 18 places the labels with dates somehow? 19 A : Not that I'm aware . 2 0 (Bistline Deposition Exhibit No. 3 marked for 21 identification.) 2 2 Q: (By Mr . Sever) Exhibit 3 i s a folder 23 labeled, "Monsanto Labels, " but with " (Re: PCBs) . " 24 I'll hand you this and ask you to do the same thing, 2 5 if you would, and not e that I will ask you whether __________________ ___________________________________________ ______ INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039577 _______________________________________________ __________________________________________27 1 any of them are related to PCBs . Have you had a 2 chance to look at Exhibit 3 ? 3 A: Yes, I have. 4 Q: Now, are those records that are kept in 5 Monsanto's ordinary course of business? , 6 A: Yes, they appear to be. 7 Q: Again, those are labels of various chemicals 8 manufactured by Monsanto? 9 A: They are labels . Not all of them refer to 10 chemicals . Presumably, all were used on Monsanto 11 products. 12 Q : Some of those, I saw at least one, I think, 13 are Arochlor labels, correct ? 14 A: Yes, there is one in here that specifically 15 refers to Arochlor. 16 Q: The label brings me to a point I was going 17 to ask you bef ore . Do you organi z e your files in a 18 way that you're able to tell which files contain 19 labels, for example? Would you be able to go 2 0 directly to a 1abe1 file? 2 1 A: That wouldn't be how I wou1d do it. 2 2 Q: Are they in a particular form of 2 3 organiz a tion that you can describe generally? 24 A: The originals of the documents are, as I 2 5 said before, stored in the records center, boxes INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039578 _____________________________________________________________________________________ 2 8 1 which they were sent to the records center. 2 Q: We talked briefly about the MONS number and 3 the SHL designation bates number . Were these 4 documents bate stamped with the MONS and SHL bates 5 numbers specifically for this production, the one 6 that was made in 1997? 7 A: The SHL numbers were specific to this 8 subpoena or Monsanto1s response to this subpoena. 9 Q : The MONS, those documents had been bate 10 stamped previous to the issuance of the subpoena? 11 A: That 1 s correct . 12 Q: Did you know when those documents were first 13 bate stamped and put together? 14 A: First stamped with the MON S number ? 15 Q : Yes. 16 A: I think about in the ' 9 4 to 1 9 5 t ime period. 17 Q: Was it in connection with another 18 19 A : Yes. 2 0 Q: Are you at liberty to tell us which 2 1 1itigation that was? 2 2 A : I don 1t recall of fhand which 1itigation the 2 3 MONS number first was used in. I just can't recall 24 at this point. 2 5 Q : That was, though, a production that was made INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039579 29 1 as part of another litigation? 2 A : That's correct . 3 Q: When this product ion, the production in 4 response to the 1997 subpoena was made, did Monsanto 5 tender the entirety of that product ion? 6 A: Of ? 7 Q: 0f the previous production with the MONS 8 numbers . 9 A : I unders tand what you're saying. I be 1ieve 1 0 the answer to that is yes. That ' s correct . 11 . Q: All right . Exhib i t 4 i s a file folder that 12 is marked, "Brochures (Monsanto Documents) . " Again, 13 there are both MONS bates document s and SHL bate 14 stamped documents . I' 11 have you do the same thing 15 with these. 16 A : Just for your inf orma tion, I'm putting these 17 yellow tabs here. The pages are just illegible . 18 MS. RUTTER: Which page ranges are those? 19 THE WITNESS : Page MONS- 076 74 6 and 747 . 2 0 Q: (By Mr . Sever) Have you had a chance to 2 1 review Exhibit 4 ? 2 2 A: I have flipped through the pages . As you 23 c an see, there are lots of pages in this exhibit . 24 Q: Are you able to tell f rom your review of the 2 5 documents contained in the file folder Exhibit 4 INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039580 _________________________________________________________________________________________ 3 0 1 whether those a re documents maintained in the 2 ordinary course of Monsanto's busines s ? 3 A: Yes, they appear to be. 4 Q: You were nice enough to indicate a couple of 5 documents, I be 1ieve, bates range MONS- 076746 6 through 7 4 7 that were for s ome reason illegible ? 7 A: That's correct. 8 Q: Did you not ice whether thos e documents also 9 bore a bates range number at the bottom? 1 0 A: The only number on either of those two pages 11 is the number that I called back to you, just a MONS 12 number. 13 Q: Would that indicate to you, while they were 14 illegible, that those are documents, nevertheless, 15 kept in the ordinary course of Monsanto 1 s business? 16 A : Yes, that's correct. 17 (Bistline Deposition Exhibit No. 4 marked for 18 identification.) 19 Q: (By Mr . Sever) We're going to make a s 2 0 Exhibit 5 a folder containing document s that is 2 1 labeled, "Safe Handling (In Monsanto's file) . " I 2 2 would ask you, please, again to do the same review. 2 3 (Bis 11ine Deposit ion Exhibit Nos. 5 , 6, 7 2 4 marked for identification . ) 25 Q: (By Mr . Sever) Have you had a chance to INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039581 __________ _______________________________________ ________________________________________ 31 1 look at Exhibit 5 ? 2 A: Yes, I have. 3 Q: Are those all records that are kept in the 4 ordinary course of Monsanto 1s business ? 5 A: They appear to be documents that were taken 6 from Monsanto 1s files, yes. 7 Q: Some of those that were produced in response 8 to the 1997 subpoena, correct? 9 A : Yes, I be1ieve they were all produced in 10 response to the 1997. 11 Q : I think we've established all MONS and SHL 12 documents were produced in response to the 1997 13 subpoena? 14 A : That's correct . 15 Q: I ' ve got to separately ask you about these 16 files, because we're going to maintain them in 17 s epara t e exhibits . I apologiz e for the repetition. 18 Let me show you Exhibit 6. Before I do that, let me 19 ask you about the SHL documents briefly . I take it 2 0 SHL designates Schlumberger? 2 1 A: Right . That was the intent . 2 2 Q: The reason that these documents were 2 3 designated Schlumberger was what, the SHL 24 designation? 2 5 A: They were documents which, a s a result of INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039582 __________________________________________________________________________________ 32 1 conversations among counse1, that were agreed to be 2 produced in addition to documents MONS . 3 Q: Does Monsanto in its records kept at the 4 records center have a file or group of files that is 5 designated Schlumberger? 6 A: Not that I know of, no. 7 Q: Let me show you Exhibit 6. It's a file 8 labeled, "MSDS Product Questionnaire Shipping 9 (Monsanto Docs) . " If you could take a look at that, 10 please. 11 A: Yes. 12 Q: Are those document s kept by Monsanto in the 13 ordinary course of business? 14 A: Yes, they appear to be. 15 Q: Exhibit 7 is another file folder that 16 contained a stack of documents . The file folder is 17 1abe1ed, "Reports (Including Drafts) Monsanto 18 Docs) . " I'd ask you to take a look at these 19 documents, please . 2 0 (Bistline Deposit ion Exhibit Nos. 8 through 16 2 1 marked for identification.) 2 2 Q: (By Mr . S ever) Have you had a chance to 2 3 review Exhibit 7 ? 2 4 A : Yes, I have. 2 5 Q: Are those all documents that are kept in the INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039583 ______________ _________________________________ ___________________________________________ 3 3 1 ordinary course of business by Monsanto? 2 A: Yes, they appear to be. 3 Q: The SHL documents that we were talking about 4 a second ago, was it you that went in and found 5 those documents for their production? 6 A: I didn't do it personally, no. 7 Q: Someone at your office did? 8 A: 11 was done - - .there was a clerical person 9 at Monsanto. The documents are reviewed for 10 product ion by outside couns e1. 11 Q: The clerical person at Monsanto is the 12 person who went and looked for the documents ? 13 A: She conducted the search. 14 Q: She did pursuant to some ins truetions that 15 came from outside counse1? 16 A: I don't recall whether I gave the 17 instruct ions or whether counsel . From either me or 18 counsel. 19 Q : I take it from your previous te s timony that 2 0 the instructions that came that led to the searching 2 1 for tho s e documents came as a result of discus sions 2 2 between counsel involved in this litigation and 23 Monsanto's outside counsel? 24 A: That's correct. 25 Q: Were you given written instructions a s to INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039584 ___________________________________________________________________ _________ 34 1 what you should look for in connection with that 2 product ion? 3 A: I wasn't given any instructions. I don't 4 believe that the inst ructions to my clerical person 5 were in writ ing . I believe it was a conver s a t ion. 6 Q: So there's nothing that you could give me 7 that would show me what you were looking for? 8 A: With response to the subpoena indicates what 9 we looked for and what we produced. 10 Q: Fair enough. Exhibit 8, again, is a 11 grouping of document s , including some that fall into 12 this SHL category. 11 is the file that is labe led, 13 "Correspondence, C-O-R-R-E-S, Memos, Call Reports, 14 Et Cetera, (Monsanto Docs) . " There 1s a post-it on 15 the first document which bears bates number 16 MONS- 0964 01 . That says, "Customer Notification 17 Index. " I'll ask you, after you have a chance to 18 look at these and determine whether they are kept in 19 the ordinary course of business, the import, if any, 2 0 of that post-it . 2 1 (Bistline Deposition Exhibit Nos. 17, 18 marked 22 23 Q: (By Mr. Sever) Have you had a chance to 24 review Exhibit 8 ? 2 5 A: Yes, I have. INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039585 ____________________ _________________________________________________ __ _________ ________ 3 5 1 Q: Are all of those documents documents 2 maintained by Monsanto in the ordinary course of 3 Monsanto's busine ss ? 4 A: Yes, they appear to be. 5 Q: You are records custodian of all those 6 documents? 7 A : That's correct . 8 Q : Exhibit 9 is ano t he r file folder labeled, 9 "Correspondence, Memos, Et Cetera (In Monsanto' s 10 files) . " We have both MONS series numbers contained 11 in this file and SHL series documents in this file. 12 If you could look at that, please . Have you had a 13 chance to review the documents contained in the file 14 folder marked Exhibit 9? 15 A : Yes, I have. 16 Q: Are those all documents kept in Monsanto 1 s 17 ordinary course of busines s ? 18 A : They appear to be . 19 Q: You1 re the records custodian of those 20 documents? 2 1 A : Yes . 22 Q: I'll show you Exhibit 10, another file 23 folder containing document s, both document s with the 24 MONS bate stamp on them and SHL . This folder is 2 5 1abe1ed, "Toxicological Studies, abbreviated T- 0 - X, INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039586 ____________________________ _______________________________________________________ 36 1 for Monsanto (Monsanto Docs) . " If you could, 2 please, take a look at this file. Have you had a 3 chance to review Exhibit 10? 4 As Yes, I have. 5 Q: Again, those are all documents that are 6 maintained in the ordinary course of Monsanto's 7 business? 8 A: That's correct . 9 Q: You're the records custodian of those 1 0 documents? 11 A : Yes, I am . 12 Q: Exhibit 11 is another file folder labeled, 13 "Toxicity (In Monsanto File)," and contains both 14 MONS series documents and SHL series documents. 15 Again, I'll ask you to look at this file, please . 16 Have you had a chance to look at Exhibit 11? 17 A: Yes, I have. 18 Q: Those are all documents that are kept in 19 Monsanto' s ordinary cours e of busine s s ? 2 0 A : Yes, they are. 2 1 Q: You're the records custodian of those 2 2 document s ? 23 A : I am. 24 Q: I neglected to ask you going back to Exhibit 25 9, there was a post-it on the first document that INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039587 _______________ _________________________________ ___________ ___________________ __________ 37 1 said something about product list. I apo1ogize . 2 Does the designation of this document as a customer 3 notification index affect your testimony at all? 4 A: No . 5 Q: What is this document, if you know? 6 A: I could just tell you what it appears to 7 be . 11 appears to be a list of customer information 8 letters that Monsanto has sent to its PCB customers . 9 Q: With your permission, I'm going to take this 1 0 post-it off. I don't think it's pertinent to your 11 testimony. Do you agree? .12 A: That 1s right . 13 MS. RUTTER: Counsel, as a way of 14 background, you 1 re aware we didn't receive these 15 document s until ye s t e rday . We went through them 16 very hastily. 17 MR. SEVER: I didn't want to confuse the 18 record. 19 Q : ( By Mr . Sever) Exhib i t 12 is a file folder 2 0 labeled, "Marketing/Sales Strategies" containing a 2 1 few document s that all appe a r to be the MONS 2 2 series . Have you had a chance to look at Exhibit 2 3 12 ? 24 A : Yes, I have. 25 Q: Those are all document s kept by Monsanto in INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039588 38 1 the ordinary course of business? 2 A: Yes. 3 Q : You are the cus todian of those records ? 4 A : That's correct . 5 Q: Exhibit 13, which I'll hand you, is another 6 file folder containing SHL series documents . The 7 file folder is labeled, "Sales to Sangamo, " 8 S-A-N-G-A-M-0. You've had a chance to review those 9 documents ? 10 A : Yes, I have. 11 Q: Those are kept in the ordinary course of 12 Monsanto' s busines s ? 13 A : That's correct . 14 Q: Do you have any idea where those document s 15 were obtained? Do you have special sales files that 16 might designate Sangamo? 17 A: Not that I'm aware of. 18 Q: How does Monsanto keep its historic records 19 re 1 ating to sales of Arochlor, if you know? 20 A: They ' re kept in a number of ways . These 2 1 documents, some of the documents in Exhibit 13, are 2 2 actual invoices that would reflect sales . Other 23 records that pertain to sales would be more of a 24 summary year end or month end summary that wou Id 25 compi1e sales by customer, by product. Those would INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039589 ______________________________________________ ________________ ____________________________ 39 1 also be records that we would refer to when looking 2 for sales to a particular customer. 3 Q: Are those sales records, any of those that 4 you referred to, kept as part of this PCB collection 5 of documents that we've referred? 6 A: Those records that pertain to PCBs , yes, 7 they're part of the PCB archives . 8 Q: I notice documents you looked at bear the 9 SHL as opposed to MONS bates designation? 10 A: That' s correct . 11 Q: The s e were documents that were not made a s 12 part of the original production of the MONS series? 13 A : That's correct . 14 Q : Are the s e document s that are cont ained 15 within the documents that Monsanto has designated as 16 PCB related? 17 A : Yes . 18 Q: At what point in time did Monsanto organize 19 its document s into the PCB related document s that 2 0 we're referring to? 2 1 A : That' s been an ongoing process, Mr. Sever. 2 2 Originally document s were collected in the early 23 1970s in response to litigation that was then 24 pending. Over the years, a s other cases were filed, 2 5 additional collect ions of d o cument s that had been INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039590 ____________ _____________________________________________________________________________ 4 0 1 created sub sequent to the earlier litigation were 2 collected. As you may know, Monsanto exited the PCB 3 business in 1977, and thereafter the law department 4 undertook the task of consolidating in one place all 5 of the documents that we could then find that were 6 relative to our manuf acture and sale of PCBs. 7 Q: Would that effort have included within it 8 get ting documents relating to Monsanto's marketing, 9 actual marketing visits, they paid on customers 10 re 1 ating to the sale of PCBs? 11 A: If those documents were still in existence 12 in files relating to PCB products, they would have 13 been collected, yes. 14 Q: Is it the case that, therefore, any document 15 that wouId have been in exis tence a t the time that 16 we're talking about, I take it, after 1977? 17 As As I said before, the document collection 18 occurred at various points in time during the 19 7 0s . 19 Q: Let me see if I can understand this. Do you 2 0 know when the effort was made to gather the Sangamo 2 1 related documents ? 2 2 A : I don't be 1ieve an effort was ever made 2 3 specifically to gather S angamo do cument s . The 24 documents relating to Sangamo would have been 2 5 collected along with document s re 1 ating to other INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039591 ________________________________________________ ______________________________________ 4 1 1 Monsanto PCB customers whenever search and 2 collection effort was made. 3 Q: You don't know precisely when that is? 4 A: 11 could have been a t any time subsequent 5 to, I guess, about 1971 when the first sweep, if you 6 want to use that term, was made . 7 Q: Exhibit 14 is another file folder labeled, 8 " Salesman 1s Manual" with a collect ion of document s 9 bearing a MONS series bates number . I'll ask you to 10 look at this, please. Are those documents all kept 11 in the ordinary course of Monsanto 1 s business? 12 A: Yes, this document is kept in the ordinary 13 course of Mon s ant o's busine s s. 14 Q: Those are documents over which you are the 15 records custodian? 16 A : That's correct. 17 Q: Exhibit 15 is another file folder labeled, 18 " PCB Losses/Environmental Assessments" contains 19 s ome more document s bearing the MONS de signation. 2 0 If you could take a 1ook at this exhibit, please. 2 1 Have you had a chance to review Exhibit 15? 2 2 A: Yes. 2 3 Q: All those documents, are they maintained by 2 4 Monsanto in the ordinary cour s e of busine s s ? 2 5 A : Yes . INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039592 42 1 Q: You are the records custodian of those 2 records? 3 A: That's correct. 4 Q: Exhibit 16 is another file folder labeled 5 with, " ? (Probably Monsanto) . " By the way, I take 6 it your counse1 was nice enough to 1abe1 the file 7 folders. Who labeled these just for the record? 8 MS. RUTTER: Someone who works for me. 9 MR . SEVER: At counsel's direction, 10 none the less? 11 MS. RUTTER: Yes. 12 Q: (By Mr. Sever) Because there may be some 13 question here, I see it's been labeled, "Probably 14 Monsanto . " I'll ask you if you c an tell me whi ch, 15 if any, of these document s are not kept by Monsanto 16 in the ordinary course of business that might 17 short-circuit this? 18 A: Mr. Sever, all of these documents were 19 document s that were f ound within Monsanto's files 2 0 relating to PCBs . I think the question mark was 2 1 whether the s e were document s created by Mon s ant o ' s 2 2 employees or document s outside of Monsanto that 23 found their way into the files. 24 Q: You were at least, with re spe c t to document s 2 5 in Exhibit 16, unab1e to tell whether Monsanto INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039593 ____________________________ _______________ _____________________________________________ 43 1 created those documents? 2 A: That 1s correct . 3 Q: However, those documents are kept in the 4 ordinary course of business at Monsanto? 5 A : Yes, they are. 6 Q : They are, nevertheles s, Monsanto's business 7 records ? 8 A: They were found within Monsanto's files kept 9 within the ordinary course of business. 10 Q : Is there some reason they wouldn't be 11 Monsanto's business records ? 12 A : Monsanto didn't create them. 13 Q: That's the distinction. 14 A: Or may not have created them more precisely. 15 Q: You are records cus todian of those files? 16 A : That's correct . 17 Q: We have f ini shed with the MONS or SHL 18 designated stamped documents . We're going to move 19 into some additional documents that, I believe, were 2 0 part of previous Monsanto productions bearing 2 1 different bates numbers . The first series I'm going 2 2 to give you bears the designation bates number SMO 2 3 be fore each of t he numbers . When you were reviewing 24 them, s ome one was kind enough to note those 2 5 document s which do not have - - which are not INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039594 __________________ ___________________________________ ___________________________________ 44 1 Monsanto document s specifically, but are 2 non-Monsanto at tachment s. I think t he mo s t prudent 3 way for us to go about this is for me to give you 4 the bates numbers of t ho s e non -Mons anto attachment s 5 and ask you whether, as to all of the remainder of 6 the documents, they are, in fact, Monsanto 7 documents? 8 A: Okay. 9 Q: For the record, the bates numbers of those 1 0 marked non-Monsanto attachment s is SMO- 0 2 16 0 9, 11 SMO-021610. 12 A: I think it's 618, counsel . 13 Q: 610 I have before 618. Did I miss one? 14 A : No, you' re correct . 15 Q: The next one is 021618. The next one is 16 SMO - 0 2 1 6 3 4 . The next one is SMO - 0216979 . The final 17 one is SMO-021485. 1 8 A : The s e c ond to the last IS 02167 9 . 1 9 Q: 0 2 16 7 9, rather than 6 9 7 9, is the second to 2 0 the last one . Have you had a chance to review the 2 1 document s we were just calling out ? 22 A: I looked at them, the specific ones that you 2 3 called out. 24 Q: Sure. My que s tion for you is, save for 2 5 those document s bearing the bates numbers that we INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039595 _______________________________________________ ___ _______________________________________45 1 just read, are the remainder of the documents 2 contained in the file folder marked as Exhibit 17 3 document s which are kept in the ordinary course of 4 Monsanto 1 s busine s s ? 5 A: They appear to be, yes. 6 Q : Those wou1d be records that you are the 7 cus todian over ? 8 A: That 1s correct . 9 Q: The only exception to those being, again, 10 those with bates numbers that we just read, correct? 11 A: The documents with bates numbers that we 12 read typica 1ly are attachments to other documents 13 that appear in the file. Everything that - 14 Q : Just to be clear, you wouldn1t be keeping 15 attachments in your file. Tho s e would not be in the 16 Monsanto files? 17 A : If they were attached to Mons anto documents 18 that were not in Monsanto 1 s files, yes, they would 19 be in Monsanto 1 s files . 2 0 Q : 11 may be Monsanto keeps the attachments in 2 1 their files as well. It's just they're not Monsanto 2 2 document s ? 2 3 A: These were documents that were not created 24 by Monsanto. 2 5 Q : Neve rthe less, a s to the s e non-Monsanto INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039596 _____________________ _________________________________________________________________ 4 6 1 attachments, the document s may be kept in Monsanto1s 2 record collection? 3 A : That's correct. 4 Q: In fact, all of the document s in Exhibit 17 5 are, in fact, kept in the ordinary c ours e of 6 business by Monsanto? 7 A: I'm looking at them right now. 8 Q : I'll try to repeat my que s ti on . Is it the 9 case all of the document s in Exhibit 17 are those 10 that are kept in the ordinary course of Monsanto ' s 11 busine s s ? 12 A: For the most part, that' s correct . However, 13 there are several documents, and I'll read out the 14 bates numbers if you want. 15 Q: Certainly . We may want to remove them from 16 the exhibit, so that perhaps what we should do is go 17 through them individually, if you wou1dn' t mind . 1 8 A: The first document that I see that I have no 19 indication from the face of the document that it was 2 0 taken from Monsanto' s files is SMO- 0 2 7 8 7 5 through 2 1 0 2 7 8 7 9 . I s ay that I can't determine whether this 2 2 was taken from Monsanto's files, this particular 23 document, because it doe s n't have on the document 24 itself a number that' s as sociated with a Mons anto 2 5 document produc tion. 11 may be that the Mons anto INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039597 _____________________________________________________________________________________ 4 7 1 number has been covered over. I just can't tell 2 you . What I can tell you is this doesn' t have a 3 Monsanto number on it. 4 Q : Do you recogniz e the subj ect matter 5 addressed in the document itself? 6 A: 11 appears to be a draft of a letter that 7 was sent by Monsanto with a signature of Elmer P. 8 Wheeler to a list of customers in March of 19 6 9. 9 Q: Elmer P. Wheeler is a previous Monsanto 10 emp1oye e ? 11 A: He was a Monsanto emp1oyee. That ' s correct. 12 Q: Do you have any reason to doubt the 13 authenticity of the copy of the letter you have 14 here? 15 A: Just by looking at it, I don1 t . I couldn't 1 6 affirmatively tell you it is. 11 appears to be. 17 Q: Let's go ahead and move on to the next one 18 you have a que s tion about . 19 A: The next one that I can't tell is number 20 SMO-0006129. 2 1 Q : Are you able to de t e rmine from the subj ect 22 matter of that document whether it appears to be a 2 3 Monsant o created do cume nt ? 24 A: This one I can't tell you . The next 2 5 document is numbered SMO- 0 2 6 1 5 4 through 0 2 6 16 1 . INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039598 ______________________________ ____________________________________________________________ 4 8 1 Again - 2 Q: This document appears to be a series of 3 Monsanto invoices, perhaps ? 4 A: Yes, they appear to be Monsanto invoices . 5 One is a customer problem report . These documents 6 all have Monsanto logos. They appear to be 7 documents from Monsanto. They simply don't have a 8 data base number or production number that would 9 indicate to me that these documents, in fact, came 1 0 from Monsanto' s files . 11 Q: I guess, hence, you're unable to determine 12 whether those are currently kept as Monsanto 13 busine ss records ? 14 A: As I sit here, I could not do that. 15 Q: All right. Let's go ahead and leave them in 16 order. We'll just note for the record that these 17 are a problem. 1 8 A; The next document is a document numbered 19 SMO- 0 2 7 0 4 3 . It's a one-page document. It appears 20 to be a document, a copy of a memorandum by David 2 1 Wood, who is a former Monsanto employee, again, 22 lacking a Monsanto number on it. I can't 2 3 af firmatively repre sent to you this came from 24 documents that we have in our files currently. The 25 next one is document numbered SMO-026128 through INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039599 ________________ __________________ ________________ _______________________________________9 1 026130. Again, it appears to be a document authored 2 by a David Wood, but lacking a Monsanto 3 identification number. 4 Q: David Wood, again, was a previous Monsanto 5 emp1oye e? 6 A : He's a retired Monsanto emp1oyee . The next 7 document is a document numbered SMO- 0 2 7 0 4 7 and 0 4 8. 8 Q : Could you repeat that ? 9 A: 0 2 7 0 4 7 and 4 8 . Which appears to be a 10 memorandum authored by Mr. Jim Ali, a former 11 Monsanto employee. 1 2 Q : That' s on Monsanto 1e 11 e rhe ad? 13 A : That' s on Monsanto interoffice memorandum 14 1e 11 erhe ad. 15 Q: Your testimony is you don't know whether 1 6 that is kept in the ordinary course of Monsanto ' s 1 7 busine s s ? 1 8 A: I don't know whether this memorandum came 1 9 from Monsanto's files. 2 0 Q: Does that appear to be a copy of a Monsanto 2 1 document, however? 2 2 A : 11 does . 2 3 Q : Any others? 2 4 A: That was all in that exhibit . 2 5 Q : So except for tho s e that we've just INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039600 ____________________________________________________________ ______________________________ 5 0 1 identified, and I won't go back through them, it 2 appears that there were one, two, three, four, five, 3 six of them. Except for those six documents , the 4 remainder of those that are contained in Exhibit 17 5 are document s kept in the ordinary course of 6 Monsanto 1 s business? 7 A: That 1 s correct. 8 Q : You're the cus todian over those records? 9 A: That ' s correct'. 1 0 Q: The final exhibit that I have for you, Mr. 11 Bis 11ine, is Exhibit 18 that is labeled, 1 2 "Unidentif ied-Monsanto Docs From Box # Group 13 (Sangamo History, Whitfield, et cetera)." I 1m going 14 to ask you, if you would, to do the same thing you 15 did with Exhibit 17 . I ' 11 point out to you that a 1 6 number of document s contained in Exhibit 18 have on 17 them stickers or indicat ions that they've been 18 exhibits in other actions . For purpose s of what 1 9 we're doing today, I'd ask you to ignore that 2 0 sticker. 11 is not pertinent , I don't think, to 2 1 what I'm going to ask you. Have you had a chance to 2 2 1ook at Exhibit 18? 2 3 A: Yes, I have. 2 4 Q : Are those records that are kept by Monsanto 2 5 in the ordinary course of bu sine s s ? INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039601 51 1 A: With the exception of the document numbered 2 Box 65-131529 through 131530, I can't tell you 3 whether these are copies from Monsanto's files . 4 Q: The first document in Exhibit 18, can you 5 testify this is kept in the ordinary course of 6 Monsanto's business? 7 A: This has a number that it was provided in 8 the cours e of Whit fie1d. 9 Q: You can't testify it's in the ordinary 1 0 course of Monsanto's business if they do not bear a 11 bates number designating them as such? 12 A : That' s correct . 13 Q: Is it the case that all documents which you 14 are custodian of records, I'm sorry, records 15 custodian bear a particular bates designation? 1 6 A: Yes, in one form or another, they all have 17 an identifying number. 1 8 Q: Now, I take it, though, that Exhibit 18 does 19 contain a number of documents that indicate they 2 0 were generated by Monsanto? 2 1 A: Right. All of those documents appear to be 2 2 on Mons ant o letterhead or to be addressed to or 2 3 authored by, both addressed to or authored by 2 4 Mons ant o emp1oyee s . 2 5 Q: You don't have any particular basis to doubt INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039602 ________________________________________________________________________________ ________ 5 2 1 the authenticity of those documents, do you? 2 A: No , I don' t. 3 MR. SEVER: If we could have a break, I have 4 about four or five minutes of questions. 5 (Recess . ) 6 Q: (By Mr. Sever) If I could ask you again 7 about the relationship between Solutia and Monsanto, 8 and I know you're a lawyer. I don't want to get too 9 technical here, because this may go to a jury. 10 Basically what is the nature -- you used the word 11 "spin-off." What is the nature of the relationship 12 between the two companies? 13 A: Solutia now is a completely independent 14 freestanding company. We have no legal relationship 15 with Monsanto. When I say "spin-off," actually the 16 mechanics was that back on September 1st, 1997, 17 every share owner of Monsanto received one share of 18 the stock in Solutia for every five years of 19 Monsanto stock that that individual owned. 2 0 Q: Specifically, too, the nature of that 2 1 agreement that you referred to earlier under which 2 2 you took over dealing with the Monsanto PCB issues 2 3 in your capacity as the general counsel at Solutia, 2 4 is it the case that Solutia is now answering for 2 5 Monsanto's liability with respect to PCB? INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039603 ________________________________ _______________________ __________________________________ 53 1 MS. RUTTER: Obj ection to the form of the 2 question. 3 A: I suppose it could be characterized in that 4 fashion. 5 Q : (By Mr. S ever) Was there a specific written 6 agreement by which Solutia took over the PCB 7 responsibilities? 8 A: There 1s no agreement that deals .only with 9 PCBs . That was part of a larger agreement that had 10 to do with allocation of responsibilities within the 11 c ompanie s. 12 Q: Did that address the types of industrial 13 chemicals that Solutia - - strike that. Did that 14 agreement relate to the fact that Solutia was taking 15 over all the industrial chemical business from 16 Monsanto? 17 A : In part, yes. 18 Q: I s it fair for me to assume that, since 1 9 Arochlor, the PCB product , was an industrial 2 0 chemical, that, therefore, Solutia took over the 2 1 management function of all the Arochlor issues ? 22 A: That' s kind of the philosophy of how the 23 responsibilities were separated between the two 24 companies. 2 5 Q: There' s nobody now at Monsanto who deals at INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039604 54 1 all with the PCB issues? 2 A : That' s correct. 3 Q: Are you actively monitoring in any ongoing 4 way this particular insurance case? 5 A: Other than coming here and having produced 6 documents, no. 7 Q: Do you have a function that is to address 8 the indemnification agreement s between Monsanto and 9 their previous PCB customers? 10 A : I'm not sure I under s t and the que s tion. 11 Q: Where there is an issue created by the 12 indemnity agreement s between the Monsanto Arochlor 13 cu s t ome r s and Monsanto, is it you who would deal 14 with the question? 15 A: If it come s up in the context of PCB 1 6 1itiga tion, yes. 1 7 Q: Do you keep the indemnification agreement s 18 that I'm talking about in separate files? 1 9 A: If you mean is there a file marked 2 0 indemnification agreement, no . 2 1 Q: How are the files marked? Are they marked 2 2 by subj ect mat ter? 2 3 A: The files are marked however the people who 24 created the files marked them. 25 Q : So that meaning that there was no INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039605 ______________________________________________ ____________________________________________5 5 1 reorganization of the files when the segregation of 2 the PCB files was done ? 3 A: The original PCB files that we're talking 4 about right now are housed in our records center. 5 They are specifically identified, but they have not 6 been removed, for example, from - - strike that . Let 7 me start again. Our normal records retention policy 8 s ays that document s are to be kept for a certain 9 amount of time. Document s that are no longer in 10 current use, but which still are required to be 11 retained for one reason or another, are sent to the 12 records center. Typica1ly those documents are 13 collected by an individual who is going through his 14 or her files , and they are - - a list of the files is 15 made, and thos e files are sent directly to the 16 records center. When we collected document s for the 1 7 PCB 1itigation over the years, we have not removed 18 those original documents from the files of which 1 9 they were a part when they were sent to the records 2 0 center. We have noted where they are. Those 2 1 records are maintained in those boxes as they were 2 2 transmit ted to the records center. 2 3 Q: In connection with the 19 9 7 subpoena and any 24 further dis cu s sions that the parties in this case 2 5 have had with your outside counse1 , has Monsanto INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039606 56 1 and/or Solutia made an attempt to obtain all of the 2 documents kept by Monsanto or Solutia that relate to 3 Schlumberger or Sangamo and their purchase and use 4 of PCBs? 5 A: Yes, I be 1 ieve that we made a good faith 6 attempt to review the files to the extent we could 7 ascertain and ascertain all of those documents and 8 produce them. 9 MR. SEVER: I have no fur the r quest ions , and 10 thank you very much for your t ime t oday . 11 EXAMINATION 12 QUESTIONS BY MR. GEDDIE: 13 (Plaintiff 1 s Deposition Exhibit Nos. 1, 2, 3, 14 4, 5 marked for identification.) 15 Q: Mr. Bistline, I just have a few. Let me 1 6 pass over to you a folder that I have marked as 17 Plaintiff 1 s Exhibit No. 1 . Those are document s that 1 8 you were kind enough to go through today or this 19 morning? 2 0 A: That 1 s correct. 2 1 Q: There are a number of notations on there 22 indicating t hat there are attachment s to documents 23 that may not have been authored by Monsanto, but are 24 attached to Monsanto related documents ? 2 5 A : Tha t1 s correc t . INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039607 __________________________________ __ _________________ __________________ ___ ____________ 57 1 Q: I guess my question is, having reviewed 2 those documents, do you have any reason to que s ti on 3 the authenticity of any of those document s in file 4 folder number one ? 5 A : No . 6 Q: Let me pass, if I will, if I may, Exhibit 7 No. 2, Plaintiff 1 s Exhibit No. 2, which is simply a 8 separate stack of document s . As the custodian of 9 records of Monsanto's Arochlor documents, do you 10 have any reason to question the authenticity of any 11 of the documents in that file folder number two? 12 A: Give me one minute , Mr. Geddie. 13 Q : Sure . 14 A: The only document as to which I couldn1 t 15 give you an opinion at this point is a document 1 6 that's marked Box 16-032970 through 032981. This 17 document appears to be, in part, a document created 18 by Monsanto and, in part, not. I have - - as to the 19 non - Mons ant o part of that , I have no indi cation - - I 2 0 couldn't express an op ini on on its authenticity . 2 1 Q: With your agreement and agreement from 2 2 counsel, I'll just remove that from the file. 2 3 MR. SEVER: That's fine. 24 Q: (By Mr . Geddie) Let me show you what I ' ve 2 5 marked a s Exh i bit No. 3 . It is from the stack of INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039608 _________________________________________________________________________________________5 8 1 documents that you reviewed this morning. It's 2 entitled, "Generator the Travelers Engineering 3 Division. " Is that a division of the Monsanto 4 Company? 5 A: Not that I'm aware of, no. 6 Q: Does that document appear to be prepared by 7 the Travelers Insurance Company or some subsidiary 8 of it? 9 A: That would be my surmise. 10 Q: Down in the lower right- hand corner, there 11 is a bate stamp number WM. 12 A : That' s correct . 13 Q: Is that the nomenclature for the documents 14 produced in the Whit fie1d case? 15 A : 11 is. 1 6 Q: The second one is an SMO document. 17 A : Yes. 1 8 Q: Do those two bate stamps indicate to you 1 9 that Plaintiff 1s Exhibit No . 3 c ame from the 20 Monsanto files? 2 1 A : The WM number does. I don't be 1ieve SMO was 22 a Monsanto number. 2 3 Q: The WM document indicates to you that the 24 generator document was produced in connection with 2 5 the WhitfieId case and it c ame f rom the Monsant o INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039609 _______ ____________________________ __ __________________________________________________ 5 9 1 files? 2 A : That 1 s correct. 3 Q: It's an authentic document in that it was 4 maintained by Monsanto in the normal course of 5 bu sine s s ? 6 A : Correct. 7 Q : Let me show you what I've marked as 8 Plaintiff 1 s Exhibit No. 4. In all fairnes s to you, 9 you marked with a yellow sticker just a question 10 mark on it. I would refer you to the s e c ond page, 11 and ask you if you can identify the source of the 12 information contained on that document ? 13 A: Are you referring to the smal1 type ? 14 Q : No, to Mr. Wheeler's name . 15 A : This indicates that the inf ormation 1 6 contained on the document was furnished by Mr. 1 7 Wheeler, who at the time was a Monsanto employee . 18 Q: Below that, I believe, the questionnaire was 19 originally authored by the S. C. Johnson Company? 2 0 A : That' s what it appears, yes . 2 1 Q: Based on the bate stamp number, again, on 2 2 Plaintiff ' s Exhibit No. 4, the WM de signa tion, does 2 3 that indicate to you that Plaintif f ' s Exhibit No. 4 24 was maintained by Monsanto in the normal course of 2 5 busines s ? INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039610 60 1 A: 11 indicates it was produced in the 2 Whitfield case, which indicates it came from 3 Monsanto's files, yes. 4 Q: The last exhibit is Plaint if f ' s Exhibit No. 5 5. Do you have any reason to question the 6 authenticity of that document ? 7 A: I have no reason. No, I have no reason to 8 question the authenticity. 9 Q: That's based on the bate stamp nomenclature 1 0 at the bottom? 11 A : That' s correct. SHL numbers which indicate, 12 again, it was produced by Monsanto, a document found 13 in its files . 14 Q: Let me get four people's names. Who was 15 Bill Pappageorge, and what were his job 16 1 7 A: Bill Pappageorge was a long-time Monsanto 1 8 employee, who, as is relevant here, in 1970 became 19 the person at Monsanto who was the focal point for 2 0 our efforts to deal with the PCB issues and the 2 1 growing awareness of PCBs in the environment and the 2 2 appropriate Monsanto response. 2 3 Q: Just so the jury could understand, would one 24 appropriately characterize Mr. Pappageorge as 2 5 Monsanto's in-house expert on PCBs? INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039611 ________________________________________________________________________ ________ 61 1 A: That would be fair. 2 Q: Who is Paul Benignus ? 3 A: A long -time Monsanto employee . His title 4 would have been manager for PCBs . He had a long 5 relationship with PCBs as Monsanto product manager. 6 Q: Who was Randy Graham? 7 A: Randy Graham was a person in the sales area 8 of Monsanto who for a t ime with Monsanto was 9 associated with PCB products. 10 Q: Who was Elmer Wheeler? 11 A: Mr. Wheeler was Monsanto 1s chief industrial 12 hygienist/toxicologist for a number of years. 13 Q: On Exhibit No. 4, Plaintiff's Exhibit 4, 14 he's referred to as the manager of environmental 1 5 health? 16 A : That' s correct. 1 7 Q: That job would involve what? 18 A: As I recall , at that time Mr. Wheeler was in 19 charge of industrial hygiene and toxicology at 2 0 Monsanto. 2 1 MR . GEDDIE : That ' s all I have , sir. Thank 2 2 you . 2 3 MR . SEVER : Thank you for your t ime . We do 24 s ome weird things here . Y ou're going to send t he 2 5 or igina 1 to him. He ' s going to sign and send it INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039612 62 1 back, to you. You are go ing to seal the original and 2 put a stamp over the seal, then send that to an 3 address that I'm going to give you along with 4 another copy. Then you can also send a copy to me . 5 I think you need to send a copy to plaintiff's 6 counsel. For the record, counsel have agreed to 7 separate the exhibits from the transcript for 8 efficiency purposes and because the exhibits are so 9 voluminous . I think we have an agreement among 10 ourselve s to keep the exhibits in the order in which 11 they have been presented, and that we will each get 1 2 a copy of the exhibit s in due course with the 13 transcript . 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039613 _________________________________ __________________ _________________________________ ____63 1 COMES NOW THE WITNESS , THOMAS M. BISTLINE, and 2 having read the foregoing transcript of the 3 deposition taken on the 16th day of June, 1998, 4 acknowledge s by signature hereto that it is a true 5 and accurate transcript of the testimony given on 5 6 the date hereinabove mentioned. 7 8 9 10 THOMAS M. BISTLINE 11 1 2 Subscribed and sworn to me before this 13 _ _ _ _ day of __________ , 1998. 14 My Commission expires: _________ 15 16 17 1 8 Notary Pub lie 19 20 21 22 23 24 25 INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039614 64 1 State of Missouri 2 SS . 3 City of St. Louis 4 I, Dawn L. McTeer, Registered Professional 5 Reporter and Notary Public in and for the State of 6 Missouri, duly commissioned, qualified and 7 authorized to administer oaths and to certify to 8 depositions, do hereby certify that pursuant to 9 Notice in the civil cause now pending and 1 0 undetermined in the Court of Common Pleas, State of 11 South Carolina, County of Greenville, to be used in 1 2 the trial of said cause in said court, I was 13 attended at the offices of Husch & Eppenberger, 100 14 North Broadway, in the City of St. Louis, State of 15 Missouri, by the aforesaid witness; and by the 1 6 aforesaid attorneys,- on the 16th day of June, 1998. 1 7 The said witness, being of sound mind and being 1 8 by me first carefully examined and duly cautioned 19 and sworn to testify the truth, the whole truth, and 2 0 nothing but the truth in the case aforesaid, 2 1 thereupon testified as is shown in the foregoing 2 2 transcript, said testimony being by me reported in 2 3 shorthand and caused to be transcribed into 2 4 typewriting, and that the foregoing pages correctly 2 5 set forth the testimony of the aforementioned INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039615 65 1 witness , together with the questions propounded by 2 counsel and remarks and obj ections of counsel 3 thereto, and is in all respects a full, true, 4 correct and complete transcript of the que s tions 5 propounded to and the answers given by said witness; 6 that s ignature of the deponent was not waived by 7 agreement of counse1. 8 I further certify that I am not of counsel or 9 attorney for either of the parties to said suit, not 1 0 related to nor interested in any of the parties or 11 their attorneys. 12 Witness my hand and notarial seal a t St. Lou i s , 13 Mis sour i , this 2 4th day of June , 19 9 8. 14 My C ommis sion expires S e p t e mb e r 2 1, 19 9 9. 15 16 Notary Publie in and for the 17 State of Mis souri 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING Houston 713-650-3500 WATER PCB-00039616 1 INDEX 2 3 Examination by Mr. Sever 4 Examination by Mr. Geddie 5 6 EXHIBITS 7 8 Bis 11ine Deposition Exhibit 1 9 Bistline Deposition Exhibit 2 1 0 Bistline D epo sition Exhibit 3 11 Bistline Deposition Exhibit 4 1 2 Bistline Deposition Exhibit 5 1 3 Bistline Deposition Exhibit 6 14 Bistline Deposit ion Exhibit 7 15 Bistline Deposition Exhibit 8 1 6 Bistline Deposition Exhibit 9 17 Bistline Deposition Exhibit 1 0 1 8 Bistline Deposition Exhibit 1 1 1 9 Bistline Deposition Exhibit 1 2 2 0 Bistline Deposition Exhibit 1 3 2 1 Bistline Deposition Exhibit 1 4 2 2 Bistline Deposition Exhibit 1 5 2 3 Bistline Deposition Exhibit 1 6 2 4 Bistline Deposition Exhibit 1 7 2 5 Bistline Deposit ion Exhibit 1 8 INTERIM COURT REPORTING Houston 713-650-3500 PAGE 7 56 23 24 26 30 30 30 30 32 32 32 32 32 32 32 32 32 34 34 WATER PCB-00039617 1 Plaintif f1 s Deposition Exhibit l 2 Plaint iff1 s Deposition Exhibit 2 3 Plaintif f1 s Deposition Exhibit 3 4 Plaintiff 1 s Deposition Exhibit 4 5 Plaintiff1 s Deposition Exhibit 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as** INTERIM COURT REPORTING Houston 713-650-3500 56 56 56 56 56 WATER PCB-00039618