Document 6wzeRMmgqdyR1kkpazjk78JOm

Bean & Manning, L.L.P. ATTORNEYS AT LAW FRANK M. BEAN JACK B. MANNING OOUGLAS T, GOSOA ANN MOORE PAUL A. HIGDON RICK W, THAMM WILLIAM J. COZORT. JR. GREGORY A. SCHLAK S8A7 SAN FELIPE, SUITE ISOO HOUSTON, TEXAS 77037 May 6, 1993 VIA AIRBORNE DELIVERY #2982963211 Mr. Bill Long District Clerk Dallas County Courthouse 600 Commerce Street Dallas, TX 75202 TELEPHONE (713) 783-7070 TELECOPIER (713) 783-71S7 'ALSO LICCNSCO IN COLORADO as. B**0** bUOD w > aX 3= X -< iTr z: O m 03 U CO CO c CO RE: In Re: All Asbestos-Related Personal Injury or Death Cases Filed By Baron & Budd, P.C. or to Be Filed By Baron & Budd, P.C. in Dallas County, Texas in the 160th Judicial District of Dallas Countv. Texas Dear Mr. Long: Enclosed herewith please find Owens-Corning Fiberglas Corporation's Responses to InterrogatorlfesT Please file this , pleading among the papers of the above referenced matter and, by appropriate notation on the margin of this letter, notify me of such filing. A copy of this pleading has been forwarded to the opposing attorney of record, as shown below. Also, a copy of this transmittal letter has been forwarded to the various counsel of record as indicated below. Should you have any questions or comments concerning this matter, please do not hesitate to contact me. Kindest personal regards. Very truly yours, BEAN & MANNING, L.L.P. RWT/amh Enclosure cc: Mr. Russell W. Budd w/o Enclosures All Other Counsel of Record Rick W. Thamm VIA AIRBORNE #2982963314 VIA REGULAR MAIL IN RE: ALL ASBESTOS-RELATED PERSONAL IN THE DISTRICT COURTS OF INJURY OR DEATH CASES FILED BY BARON & BUDD, P.C. OR TO DALLAS COUNTY, TEXAS BY FILED BY BARON & BUDD, P.C. IN DALLAS COUNTY, TEXAS 160TH JUDICIAL DISTRICT S DEFENDANT OWENS-CORNING FIBERGLAS CORPORATION'S RESPONSES TO INTERROGATORIES Defendant Owens-Corning Fiberglas Corporation ("OCF"), by counsel, responds to Plaintiffs' Interrogatories, dated April 7, 1993, as follows: INTRODUCTORY STATEMENT AND OBJECTIONS Plaintiffs seek information which in many instances is contained in numerous files and records. Further, certain of these interrogatories may call for the collection of information from OCF offices located in various parts of the United States. Therefore, OCF has responded on the basis of the best information now available to it. Subsequent investigation may reveal addi tional information relevant to these interrogatories and lead to a supplemental response. It is also noted that persons who are not now officers, directors or managing agents of OCF may have information relevant to the subject matter of these interroga tories, and OCF does not purport, in the following responses, to give the response of any such persons. OCF's 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 ground, 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. Furthermore, to the extent that these interrogatories seek information concerning injury or disease other than those alleg edly experienced by plaintiffs herein or concerning asbestoscontaining products other than those to which plaintiffs alleg edly were exposed, OCF objects on the grounds that such informa tion is beyond the proper scope of discovery and is not reason ably calculated to lead to the discovery of admissible evidence. To the extent these interrogatories are not limited in time to the years that OCF manufactured and/or sold asbestos-containing products, OCF objects on the grounds that these interrogatories are overly broad, unduly burdensome, and not reasonably calcu lated to lead to the discovery of admissible evidence. OCF also objects to these interrogatories to the extent that they seek: (1) information which is protected from discovery as attorney work-product and/or attorney-client communications, protected by the right to privacy, or protected by any other applicable privilege; or (2) material which is considered to be proprietary and trade secret. Incorporating the above objections into each response, OCF responds as follows: -2- RESPONSES INTERROGATORY NO. 1: For each document listed below, please answer whether such document is a true and correct duplicate of a genuine and authen tic document: EXHIBIT NO. _________DESCRIPTION a) K-625 Owens-Corning Fiberglas Intra-company corre spondence dated April 12, 1979, from J.L. Konzen to L.W. Saxby; re: Asbestos Related Disease. RESPONSE NO. 1: OCF objects to this interrogatory on the grounds that the document in question is protected from discovery as attorney- client communications, party communications and attorney work product. (See Affidavit of Robert A. McOmber attached hereto which pertains to this document.) The document in question, which is dated April 12, 1979 and has the Bates No. 02 419 0933 0946, is a Medical Department memo to Management with a copy to the Law Department responding to a request for information regarding asbestos-related disease with an attached questions and answers outline prepared by the Medical Department for a Berlin plant presentation. This document constitutes an attorney-client communication and attorney work product. Without waiving its objections, OCF states that plaintiffs1 Exhibit K-625 described above is a true and accurate copy of an authentic document found in the files of OCF relating to asbestos except insofar as it contains marginalia, exhibit stickers, handwriting and other marks which do not appear on the original of this document. -3- 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 OCF Entity by an employee or representative of any OCF Entity with knowledge of the act, event, condition or opinion recorded. EXHIBIT NO. _________DESCRIPTION a) K--625 Owens-Corning Fiberglas Intra-company corre spondence dated April 12, 1979, from J.L. Konzen to L.W. Saxby; re: Asbestos Related Disease. RESPONSE NO. 2: OCF objects to this interrogatory on the grounds that the document in question is protected from discovery as attorney- client communications, party communications and attorney work product. (See Affidavit of Robert A. McOmber attached hereto which pertains to this document.) The document in question, which is dated April 12, 1979 and has the Bates No. 02 419 0933 0946, is a Medical Department memo to Management with a copy to the Law Department responding to a request for information regarding asbestos-related disease with an attached questions and answers outline prepared by the Medical Department for a Berlin plant presentation. This document constitutes an attorney-client communication and attorney work product. OCF objects to plaintiffs' use of the term "business activi ty" on the grounds that it is vague and ambiguous. Without waiving its objections, OCF states that the original of plaintiffs' Exhibit K-625 described above was prepared by an OCF employee during the course of his or her employment for the -4- purpose of assisting OCF counsel in its defense of OCF in the asbestos litigation. 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 a) K-625 RESPONSE NO. 3: Owens-Corning Fiberglas Intra-company corre spondence dated April 12, 1979, from J.L. Konzen to L.W. Saxby; re: Asbestos Related Disease. OCF objects to this interrogatory on the grounds that the document in question is protected from discovery as attorney- client communications, party communications and attorney work product. (See Affidavit of Robert A. McOmber attached hereto which pertains to this document.) The document in question, which is dated April 12, 1979 and has the Bates No. 02 419 0933 0946, is a Medical Department memo to Management with a copy to the Law Department responding to a request for information regarding asbestos-related disease with an attached questions and answers outline prepared by the Medical Department for a Berlin plant presentation. This document constitutes an attorney-client communication and attorney work product. Without waiving its objections, OCF states that the original of plaintiffs' Exhibit K-625 described above has been kept in OCF's files since its creation. -5- INTERROGATORY NO. 4: Has OCF stipulated or agreed to the authenticity of any of the documents referenced in Interrogatory No. 1 with any person prior to the date of these Interrogatories? RESPONSE NO. 4: OCF objects to this interrogatory as overly broad and burdensome. OCF further objects to this interrogatory on the grounds that it seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. OCF also objects to this interrogatory on the grounds that the document in question is protected from discovery as attorneyclient communications, party communications and attorney work product. (See Affidavit of Robert A. McOmber attached hereto which pertains to this document.) The document in question, which is dated April 12, 1979 and has the Bates No. 02 419 0933 0946, is a Medical Department memo to Management with a copy to the Law Department responding to a request for information regarding asbestos-related disease with an attached questions and answers outline prepared by the Medical Department for a Berlin plant presentation. This document constitutes an attorney-client communication and attorney work product. Without waiving its objections, OCF states that it does not have a compilation of the information requested herein. -6- Respectfully submitted, BEAN & HANNING, L.L.P. /Ubi.-tf--- Rick W. Thamm Texas State Bar No. 19820020 5847 San Felipe, Suite 1500 Houston, Texas 77057 (713) 783-7070 (713) 974-8173 Fax Number ATTORNEYS FOR DEFENDANT, OWENS-CORNING FIBERGLAS CORP. CERTIFICATE-OF SERVICE I hereby certify that Owens-Corning Fiberglas Corporation's Responses to Plaintiffs' Interrogatories has been served upon Mr. Russell Budd, Baron & Budd, The Centrum, 3102 Oak Lawn Avenue, Suite 1100, Dallas Texas 75219, plaintiff's counsel of record, by overnight delivery and to all other counsel of record by regular mail this &4L. day of May, 1993. Rick W. Thamm -7- IN RE: ALL ASBESTOS-RELATED PERSONAL IN THE DISTRICT COURTS OF INJURY OR DEATH CASES FILED BY BARON & BUDD, P.C. OR TO DALLAS COUNTY, TEXAS BY FILED BY BARON & BUDD, P.C. IN DALLAS COUNTY, TEXAS 160TH JUDICIAL DISTRICT STATE OF OHIO COUNTY OF WOOD ) ) ) AFFIDAVIT ROBERT A. McOMBER, being duly sworn, deposes and says that he is Authorized Agent for OWENS-CORNING FIBERGLAS CORPORATION and that he verifies the foregoing Responses to Plaintiffs* Interrogatories for and on behalf of OWENS-CORNING FIBERGLAS CORPORATION and is duly authorized so to do; that the matters stated therein are not within the personal knowledge of deponent; that the facts stated therein have been assembled by authorized employees and counsel of OWENS-CORNING FIBERGLAS CORPORATION and deponent is informed that the facts stated therein are true. Robert A. McOmber Sworn to and subscribed before me on this r 1993. AM Or day of My Commission expires: Notary Public r/;y o , A. Ttfgaow -Arr/of Ohio ... .-3? Nov. 25,1994 IN RE: ALL ASBESTOS-RELATED PERSONAL INJURY OR DEATH CASES FILED BY BARON & BUDD, P.C. OR TO BY FILED BY BARON & BUDD, P.C. IN DALLAS COUNTY, TEXAS IN THE DISTRICT COURTS OF DALLAS COUNTY, TEXAS 160TH JUDICIAL DISTRICT AFFIDAVIT OF ROBERT A. McOMBER REGARDING OCF DOCUMENT 02 419 0933-0946 THE STATE OF OHIO COUNTY OF BEFORE ME, the undersigned authority, on this day personally appeared Robert A. McOmber who, after being duly sworn upon his oath, stated as follows: 1. My name is Robert A. McOmber. I am over eighteen, of sound mind, and in all ways competent to make this affidavit. I am an attorney licensed in the State of Ohio and am authorized to make this affidavit on behalf of Owens-Corning Fiberglas Corporation ("OCF"). I began employment with OCF in 1979, was named Attorney in OCF's Equal Employment Opportunity Department in 1981 and joined OCF's Law Department in 1986. Beginning in September of 1988 and continuing through 1992, I was primarily involved in advising OCF in asbestos-related claims and lawsuits. Since 1992 I have continued to advise OCF in connection with such matters. The facts contained herein are based upon information obtained from other OCF employees, counsel for OCF, as well as my own personal knowledge and belief, and include information obtained and gathered during the course of this asbestos-related litigation. I am familiar with the facts cited in this affidavit and they are true and correct. 2. I have reviewed Plaintiffs' Interrogatories dated April 7, 1993, filed in All Asbestos Related Personal or Death Cases Filed by Baron & Budd, P.C. or to be filed bv Baron & Budd, P.C. in Dallas County, Texas in the District Court of Dallas County, Texas, 160th Judicial District. I am familiar with the OCF document Bates Numbered 02 419 0933-0946, which is the subject of plaintiffs' Interrogatories. This document is a communication dated 4/12/79 between J. L. Konzen, M.D., OCF's Medical Director, and Lewis W. Saxby, then a Senior Vice President for OCF. This memo reflects Dr. Konzen's response to Mr. Saxby's request for background information on various asbestos-related medical conditions. The memo was copied to D. M. Phillips, an attorney employed directly by OCF, R. A. Yudkin, Vice President of Corporate Affairs for OCF at the time, and J. F. Vyverberg, then Vice President of Industry Relations. Dr. Konzen was gathering information at Mr. Saxby's and OCF Law Department's request to assist Mr. Saxby in his preparation as a corporate witness for OCF in the asbestos litigation. During the 1980's, Mr. Saxby was assisting OCF counsel in preparing for the asbestos litigation by preparing to appear as a witness for OCF at asbestos-related trials. In connection with this effort, Dr. Konzen was providing information for Mr. Saxby's use and education as a witness. 3. Mr. Saxby, as a representative of OCF, had the authority to obtain professional legal services, to act on such advice on behalf of OCF, and to assist' OCF attorneys in the defense of its asbestos-related litigation. Mr. Phillips, an attorney employed in OCF's Law Department, had the authority from OCF to obtain assistance from various corporate representatives, including Mr. Saxby and Dr. Konzen, in the defense of OCF's asbestos-related litigation and to advise OCF, himself, on issues raised in the asbestos litigation. 4. It has been OCF's custom and practice that documents such as this document between OCF's corporate representatives and attorney were a confidential communications in that they were not intended to be disclosed to third persons other than those third persons to whom disclosure may have been made in furtherance of the rendition of professional legal services to OCF where those third persons may have been reasonably necessary for the transmission of those confidential communications. Further, those third persons to whom the communications were disclosed were, in each instance, also representatives of OCF. who have the authority from OCF to obtain professional legal services from a lawyer on behalf of OCF or to act on behalf of OCF on advice rendered pursuant to professional legal services rendered to OCF by a lawyer. The documents were and are confidential communications made specifically for the purposes of facilitating the rendition of professional legal services to OCF. It is OCF's intent that each of these documents remained confidential and to OCF's knowledge,- such documents have not been disclosed to anyone outside the above-identified group. 5. This communication reflects Dr. Konzen's efforts to assist OCF counsel and Mr. Saxby in their defense of OCF in the asbestos litigation and was prepared in anticipation of actual litigation. This document was prepared in the context of the asbestos personal injury litigation in which OCF has been involved as a repeat litigant since the 1970's. It was prepared as part of an overall legal strategy for all such cases in which OCF was and is a defendant. 6. Based on the facts set forth herein, OCF claims that this document constitutes an attorney-client communication, as set forth in Texas Rule of Evidence 503(b), and attorney work product as set forth in Texas Rule of Civil Procedure 166(b)(3). -2- Further, this affiant saith not. Robert A. McOmber SUBSCRIBED AND SWORN TO BEFORE ME the undersigned authority Thcrr-ss A. Siricgow Notary Pu:.,io. S'.r.ic- o: Ohio My Comr,--'G?4 Printed Name of Notary and Expiration of Commission -3-