Document DDzDeOrZ2ZJn50o9pxqk7zR4B

1 i IN jTHF, COURT OF COMMON PLEAS 2 ; PHILADELPHIA COUNTY, PENNSYLVANIA 3 ?t 4 SAMUEL, ALSTON : JANUARY TERM, 19 0 0 5 VS . : 6 SEPTA, el al. : NO. 5475 7 8 Januaxy 4, 1990 9 1 0 Oral deposilion o THOMAS M. HI STLINE, 1 1 held 1 n Die OLlicux o KcDin, Saveli, Klein K CraE, 1 2 P.C., 2400 One Reading Cenlei', 1101 Max ku L 31 .reel, 1 3 Philadelphia, Pennsylvania 19107 commencing al 10:15 1 4 a . m . , on llic above dale, b e o x e Hcirvcy K x a u s s , a 1 5 Regis lex ed P x-o e s s i u n a 1 Rcpux lux and a Nolaxy Public 1 6 o Die Commonweal Di u Pennsylvania. 17 18 19 20 21 22 KRAUSS, KATZ & ACKERMAN, INC. Legal Sappor l Sex'vices 23 4lh Floox, Robinson Euildiny 4 2 Sou Ih 15 L h Six-eel 24 Philadelphia, Pennsylvania 19102-2242 (215) 983-9191 KRAUSS, KATZ & ACKERMAN. INC. WATER PCB-SD0000026978 o 1 APPEARANCES : 2 K 0 H N , SAVETT, KLEIN & CRAP, P.C. BY: JOSEPH C. K 0 H N , ESQUIRE 3 2 4 0 0 One Reading Ceil Icr 110 1 Market S 1.1 e e L 4 Philadelphia, Pennsylvania 19107 Counsel for L h u PlainliCI 5 MARCOLIS, EDELSTEIN, SCHERLIS, SAROWITZ t* 6 KRAEMER BY: JAMIE L. S H E L L E R, ESQUIRE 7 Third Flour, 1315 Walnut Street Philadelphia, Pennsylvania 19107 3 Counsel Cor A m Irak 9 CILDA L. KRAMER, ESQUIRE S u i L e 10 15 1 0 14 11 Walnut Slice L Philadelphia, Pennsylvania 19102 1 1 Counsel for PlaintiCC 1 2 WHITE AND WILLIAMS BY: MICHAEL H. MALIN, ESQUIRE 1 3 and THOMAS GOUTMAN, ESQUIRE 1 4 1234 Market Street Philadelphia, Pennsylvania 19107 1 5 Counsel Cor Monsanto 1 6 PEPPER, HAMILTON & SCHEETZ BY: COLLEEN F. COONELLY, ESQUIRE 1 7 3000 Two Logan Square 18 th and A roll S tree Lu 1 8 Ph i 1 ade 1 phia, Pennsylvania 19103 Counsel Cor' Conrail 19 20 21 22 23 24 WATER PCB-SD0000026979 3 1 APPEARANCES (CONT.) : 2 BLANK, ROME, COMISKY & McCAOLEY BY: JEFFREY A. COHEN, ESQUIRE 3 Four Penn Center Philadelphia, Pennsylvania 19103 4 Counsel for Penn Central and Sept 5 LIEBERT, SHORT & HIRSHLAND BY: STEPHEN M. Me MANUS, ESQUIRE 6 1200, One Franklin Plaza Philadelphia, Pennsylvania 19103 7 Counsel Cot' Additional DeCeudanL General Elec. Lei c Company 8 ALSO PRESENT: 9 MESIROV, CELMAN, JAFFE, CRAMER & JAMIESON BY: ALAN C. MILSTEIN, ESQUIRE 1 0 and LEON H. ROSE, ESQUIRE 1 1 The Fidelity Buildiny Philadelphia, Pennsylvania 19109 12 13 14 15 16 17 18 19 20 21 22 23 24 WATER PCB-SD0000026980 1 INDEX 3 WITNESS PAGE NO. 4 TiionidS M . Biu Lli ne 5 By Mr. Kolm 5 6 7 8 9 1 0 EXHIBITS 1 1 NO . DESCRIPTION PAGE NO. 12 1 3 E x h i b .i t 1 Documun L 70 1 4 E x 11 i b i l 2 Ducumeii l 91 1 5 Exhibit 3 Du c um uni 100 16 17 18 19 20 21 22 23 24 4 WATER PCB-SD0000026981 5 1 2 (I L i hereby r Lipula Led and agr eed 3 by and among counsel L11 a L sealing, 4 Ci liny and certification axe waived; and that 5 all objee Lions, except as to the f o r m of 6 ques Lions , b a res erved until the Lime o C 7 trial . ) 8 9 THOMAS M. BISTLINE, after' having 1 0 been f i rs L duly sworn, was examined and 1 1 testified as follows: i2 1 3 MR. MALIN: We want the deposition L o 1 4 be read and signed by the witness, and we will 1 5 assert all objections. No ubjecli on is waived. 1 6 BY MR. KOHN: 1 7 Q Where do you live? 1 8 A . In St. L ouis, Miasuur 1 9 Q Wild L is your address? 2 0 A . 15182 Is 1 e vie w Drive. 2 1 Q Where do you work? 2 2 A . M o n s a nto Company. 23 Q What po s i Lion? 24 A . Li LiyaLi on counsel. K R A n d c. fr T1 7 c. a r v it d m a m r mn WATER PCB-SD0000026982 Bis llin e 1 Q How long have you li 2 A . Fox' dpproxiiiu Lely L 3 Q WliaL position did y 4 Lime? 5 A . Assistant litigatio 6 Q How long have you b 7 n to? 8 A . Almost eight years. 9 Q You graduated from 1 0 A . 197 0 . 1 1 Q What college did yo 1 2 A . Columbia College. 1 3 Q And when did you yr 1 4 A . 1 9 74 . 1 5 Q From w ha L instiLuti 1 6 A . Columbia University 1 7 Q. Wlu l was you i' course of sludy ur degree 1 8 from Columbia undergraduate? 1 9 A. A general liberal ai'Ls degree, I yol. 2 0 Q. What did you do after' you left law 2 1 school? 22 A. I worked for' a year'. Do you want me Lo 23 tell you wliaL I did after I left law school? 24 Q . Right. WATER PCB-SD0000026983 B i a 11 i n e 7 1 A. I became an associate al the law firm of 2 Simplon, Thatcher' and Bar lie l in New York Cily. 3 Q D i d you do any repr 4 Monsan lo duriny l h n l Li m e purio 5 A . N o , sir1 6 Q. What did you do abler you leil Ihe 7 Simpson firm ? 8 A. I wen l lo Monsanto Company. 9 Q. In Ihe posilion ol assistant liliyalion 1 0 counsel? 1 1 A. I believe my Lille al Ihe lime I firsl 1 2 joined Monsanlo in 19 8 2, was liliyalion a l lor noy. 1 3 Q. When did you oblain Ihe lille of 1 4 assistant liliyalion counsel? 1 5 Appi' o x i ma l e 1 y , one yea. after I joined 1 6 Monsanto. 1 7 Q . Did that represent a promotion or was 1 8 that simply a chanye of name? 19 A. It was a promotion. 20 Q. All right. Did you have any titles in 2 1 between assistant litigation counsel and litigation 22 counsel? 2 3 A . No . 2 4 Q. Does Monsanto have any insurance with WATER PCB-SD0000026984 Bis LI i nc 8 1 respect to the claims that axe initiated in the 2 Paoli PCB litiyalion? 3 MR. MALIN: Objection. This 4 deposition is being taken solely in connection with 5 youi' motion, and as you stated before, Judye 6 Avellino, in order to ascertain whether' or' not the 7 production oC documents that you asked for- is 8 burdensome. 9 Accordingly, this question is 1 0 o b j e c L i unable. I L's not with rospec L to the a in b i L 1 1 o this d e p o s i t i o n , which is under' R u 1 e 4 0 0 1 (c) . 1 2 And, L he re o r c , I direct the wit no s s not to a n s w e r . 1 3 MR . KOHN: I know o no such 1 4 1 i m i tat ion placed on either' the No t i c e o DuposiLion 1 5 or' any ruling O X' order' o the cour L . The 1 6 i nform a Lion is cl early discover'y a ini the ques Lion 1 7 s bands . Do y o u h ave any -- 18 MR . MALIN: I instr u c t the wit ness 1 9 not to answer Lh e ques Lion. 20 MR . KOHN: On what y r- ound was that 2 1 instruc Lion ml de? 22 MR . MALIN: I've se L for Lli Lli e 23 grounds. 2 4 BY MR. KOHN: WATER PCB-SD0000026985 Bia llinc 9 1 Q . What did you d u lu prepare [or your 2 deposi lion today? 3 A . Well, I came h ere lo Philadelphia and 4 reviewed the deposition no lice. 5 Q You didn't not ice any restriction in lhe 6 notice about Ihe scope of the deposition, did you? 7 A . I reviewed the depoai lion no lice, 8 Q Did you notice any ruti Ir ic lion about l he 9 scope o Ihe deposition? 1 0 A . I believe the nolice will a Laic whal il 1 1 stales . 1 2 MR. M A LIN : Objcclion, Ihe nolice 1 3 speaks or' ilsel. 1 4 MR. KOHN: I'm a u k i n y the wi Incus lii u 1 5 recollec Lion. 1 6 A . I defer' Lo Lhe no lice for ila eon lenla. 1 7 Q You have no in dependen l recoileclion of 1 8 t ii e coni entu? 1 9 A . I couldn't rec ile il lo you, aa I ail 2 0 liere, sir. 2 1 Q You looked al this nolice when? 22 A . Yesterday ale moon . 2 3 Q All right. Wli a l else did you do lo 24 prepare for' lhe deposition loddy ? WATER PCB-SD0000026986 B i s 11 i n e 10 1 A . I reviewed cer Lai .ve 2 been filed by Mo n s a n L o and by 3 cunnecLion w i Lli this C d S tl 4 Q All riy h L . Which 5 A . I believe, sir', L. 6 re la tiny Lo this present deposition. 7 Q. All riylil. Any other papers that you Q reviewed, o the r Lhd n Lhe mo Lion pay e r s ? 9 A . Not Lha L I can r e c a 11, offhand. 1 0 Q When did you ar rive i n Philadelph 1 1 c o nn e c Lion with L h e p r e p a r a Lion fox' Lhe d e p o s 1 2 A Yes tenldy . 1 3 Q Prior Lo arriving in Phi1 ade1phia, did 1 4 you do anyth iny Lo prepare Cor Lhe deposition today? 1 5 A. I may have reviewed some Tiles in my 1 6 office. I can't recall specifically. 1 7 Q. Did you have any conver sations wi Lli 1 8 anyone in connection with preparation fox' Lhe 1 9 deposition? 2 0 A. I spoke to members of my staff before I 2 1 left my office, yes. 22 Q. Which .members of your' staff? 23 A. Paraleyals who work with me on PCB 24 cases. V D 7\ r T C C C/r TV WATER PCB-SD0000026987 Bit; LI i nu 11 1 Q. And whal die Lhe name; a of l he 2 individuals LhaL you spoke with prior' Lo cominy L o 3 Philddelphid in connection wilh prepara l ion [ur L h i s 4 d e p o si Lion? 5 A. Miss Josephine Niblock and Miss Max y a x e L 6 Huxley. 7 Q Any o L h e x paxalcyals a L youx' oTCicc Lha L 8 you spoke w i L h p x i o x' Lo Lhe deposi Lion wiLh x'es pec L 9 L o p I'epdX'd Lion [ox L h e deposiLion? 1 0 A . N o L L h a L I recall. 1 1 Q When did you have Lhe convex sa Lion wi Lh 1 2 M i s s Nib lock? 1 3 A . Ye s L erday 1 4 Q And when did you have Lhe convexsaL ion 1 5 w i Lli Miss Huxley 9 1 6 A . Priu i' L o Lire holidays. 1 7 Q How 1 o n y was y o u r cone'cx'saLion wiLh Miss 1 8 Niblock? 1 9 A . 1 5 L o 2 0 min u L e s . 2 0 Q Was a nybody els e presen L? 2 1 A . No . 22 Q Wild L did you sa y and w h a L did she s ay? 23 MR . M A L I N : Objec Lion. I L 1 .O, 2 4 px'ivileyed, a n d I direc L L h e wiLness no L L o a n s w c X' . WATER PCB-SD0000026988 Bi s L1 i ne 12 1 MR . KOHN : Wild L particular privilege 2 are you purporLiny L o ass c r L ? 3 MR . MALIN: Tii i s is work p r uducL. 4 At lomey-cl ieu L pi iviluyc 5 BY MR. KOHN: 6 Q I s Miss N iblock yo ur client? 7 A Mis s N i b 1 o c k is a paruleyrl who works 8 Cur m e i n M o 11 s a n L o ' s law d e pa r L m e n L . 9 Q 1 0 Hurley 9 How long was your' conversation wi tii Miss 1 1 A App ruxi in a Lely the same duration. 1 2 Q Was anyoii e else p r' esent when you spoke 1 3 with h er? 14 A 15 Q 1 6 say? No . And what did you s ay and what did s li e 1 7 MR. MALIN: Obj ecLion. Direct the 1 8 w i t n e s S 11 o L to answer on L he s a m e yruunda . 1 9 Q. Did you r e vie w any documents when you 20 had 111 e c o n v c r s a Lion wiL 11 Miss Niblock? 2 1 A No . 2 2 Q Did you r e vie w any documents w li e n you 23 had the cunvorsd Liun with Miss Hurley? 2 4 A . Yes. WATER PCB-SD0000026989 Bis Lline 13 1 Q. Which documents did you review duriny 2 that conversation? 3 A. A memorandum LhaL was prepared byMiss 4 Niblock and Miss Hur ley rein Liny to tile 5 b u rd e n s o in e n e s s of responding) to Lhe document 6 production requests served by plain Lilia in this 7 ma tier . S Q. Do you recall Lite date o LhaL 9 m e m ora n d um? 1 0 A. No, sir', I don't. 1 1 Q. How lengthy a document is it? 1 2 A. Approximately, Lwo payee. I believe 1 3 exactly Lwo payes, in fact. 1 4 Q Did you rely o n the i n f o X'm a Lion 1 5 con Lai ned in t li a L memura nd urn i n connection with the 1 6 f i 1 i n y of the affidavit L h a L you filed in this case 1 7 with respect to Lhe issue of bur'den? 1 8 A. I reviewed that information and 1 9 discussed it with Miss Niblock earlier' and with Miss 2 0 Hurley, before Lhe holidays. 2 1 And independently, I verified Lhe 22 contents of Lhe memorandum to satisfy myself LhaL 23 the information was accurate. 2 4 Q. And did you then, in turn, rely on LhaL I/D 71 T7CC V 7i T 7 C 71 P T D M A W T M r* WATER PCB-SD0000026990 Bis L 1 i n o 14 1 information in connection witli the filiny of the 2 affidavit in this case? 3 A. The information, yes. I relied on that 4 information, yes. 5 MH . KOHN: I would request a copy of 6 that memorandum be provided to us at your' earliest 7 convenience. 8 MR. MALIN: If you want the 9 memorandum, you'll have to file the approp 1 0 document requests. 1 i BY MR. KOHN: 1 2 Q. All right. OLher than Lite con ver sa Lions 1 3 with Miss Niblock, Miss Hurley, and Live re view of 1 4 documents yesterday, did you do any Lhiny e 1 s e to 1 5 prepare for your deposition today? 1 6 A. Not specifically, no. 1 7 Q. How about generally? 1 8 A. Only in the sense, six', that my work at i 9 MonsanLo relatiny to PCB litigation would prepare me 2 0 fox' tliis deposition. 2 1 Q. How long have you been working witli PCB 22 litigation at Monsanto? 23 A, Five years. 24 Q. Can you describe the eir cum stances under' WATER PCB-SD0000026991 Bis LI i iui 15 1 which you first became involved with PCB liliyaLion? 2 A. I was asked by my supervisor Lo assume 3 responsibility fur PCB liliyaLion, Die manayemenL o 4 PCB litiyation in January of 1985. 5 Q. Who was you i' supervisor', at thal Lime? 6 A . Mr. Robert Berend L. 7 Q. And prior' Lo that Lime, whuL were your 8 responsibiliLies? 9 A. I had responsibility for' super'visiny 1 0 other liliyuLed matters in which Monsanto was 1 1 involved, but not PCB litiyation. 1 2 Q. Did you receive any instruction from Mr. 1 3 Berend t with respect to what you were to do in 1 4 connection with this new responsibility? 1 5 MR. MALIN: I'll object Lo LhuL 1 6 question. That's privileyed. Direct the witness 1 7 not to answer. 1 8 MR. KOHN: That calls for a yes or 1 9 no. Did Ire receive any instruction. I have yet 2 0 asked for the content communication, if any. 2 1 MR. MALIN: Tile objection stands. 22 Internal woikinys of the loyal department is 2 3 objectionable. 2 4 BY MR. KOHN: WATER PCB-SD0000026992 Bis LIino 16 1 Q. Can you define more precisely the 2 respo n sibility lhal. you have as Lite super'visor1 of 3 Lite PCB litigation? 4 A. It is my responsibility to supervise Lite 5 activities of outside counsel representing Monsanto 6 in the PCB litigation. To assure LhaL their 7 activities are appropriately direeLed to defend the 8 company's interests, that they are carried out in a 9 cost effective manner'. 1 0 And that other activities relating to 1 1 PCB litigation are appropriately focused. 1 2 Q. What do you mean by other' activities 1 3 related tu PCB litigation are appropriately focused? 1 4 A. I have paralegals, as I have already 1 5 mentioned, and clerical individuals who work for' me, 1 6 in connection with PCB litigation, and I consult 1 7 with scientists, both inside and outside of 1 8 Monsanto, in connection with PCB litigation. 1 9 Q. Do you have any responsibility with 2 0 respect to the production of documents in PCB 2 1 litigation? - 2 2 A . Yes, sir. 23 Q Wha L area or what responsibilities do 2 4 you have on 11 i a t subject? Ff R A TI S S . FCAT7, ACKERMAN T N C . WATER PCB-SD0000026993 Bis lline 17 1 A. I would describe that respousibiliLy as 2 general supervisory responsibility Lo assure LhaL 3 the documents that are pr od uc e d are thus e LhaL are 4 called for by d oc um out reques La and LhaL the 5 responses are provided to the d ema nd i ng party in an 6 appropriate a nd timely f a a h i o n . 7 Q. And have you done LhaL in this case? 8 A. I believe so, yes. 9 Q. How many documents have you given us in 1 0 Lliis ease? 1 1 MR. MALIN: The record speaks for 1 2 itself. 13 MR . KOHN: I'm asking the witnesses 1 4 for his esti mate. 1 5 MR . MALIN: WhaL case arc you talking 1 6 about, AlsLo n? 1 7 MR . KOHN: Alston, ye s 1 8 A . That, Mr. K o h n, I don't have that iiumbc r 1 9 in precisely . I ' d have Lo defer' Lo Mr. Mdlin Lor 2 0 the precise count. The response was , in my opinion. 2 1 appropridLe to the demand. 22 Q Would it surprise you if I told you we 23 have received approximately three documents in the 24 Alston case? WATER PCB-SD0000026994 Bis lline 18 1 MR. MALIN: I dime L you nul Lo 2 answer that question. Objection. I diree L you not 3 to answer1. 4 MR. KOHN: On wild L y rounds? 5 MR. MALIN: It's not an appropriate 6 question. 7 MR . KOHN : Why don' L you jus L h a v e 8 your1 partner1 h a n d 1 e Lhe o b j c c Lions , since h u u e e m s 9 to be making all of them i ui L i a 1 1 y anyway. We ' 11 1 0 move a little fas ter. 1 1 BY MR. KOHN: 1 2 Q. When you say you yenei'ally supervised 1 3 tile production of products, whom do you supervise? 1 4 A. Both outside counsel and members of my 1 5 staff who are involved in Lire effort to produce the 1 6 documents. 1 7 Q. During the period since you have assumed 1 8 responsibility for1 the PCB litigation, can you 1 9 identify Lhe individuals on your1 staff who have been 2 0 involved in the production of documents? 2 1 A . In all cases. Mr. Kotin? 22 Q As best you ca n recall. 23 MR . MALIN: All PCB litigu Lion? 24 MR. KOHN: Yes . WATER PCB-SD0000026995 Bis Lline 19 1 MR. KOHN: I would request Ilia L you 2 not confer with counsel while a question is 3 pending. 4 MR. MALIN: Well - 5 MR. KOHN: Note [or the record the 6 conference between the witness and counsel. 7 (Whereupon, a discussion was held off 8 the record.) 9 MR. MALIN: I'm objecting, and I'm 1 0 directing the, witness not to answer because of the 1 1 inner' workings, again, of the law department. It's 1 2 not relevant to the issue before us in this 1 3 particular' case and on this particular- motion. 1 4 BY MR. KOHN: 1 5 Q. How many people wort for' you? 1 6 A. In overall or just with respect to PCB 1 7 ma tiers? 1 8 Q. Let's starL with overall and then we'll 1 9 get to PCB matters. 2 0 A. Approximately, 20. 2 1 Q. Some of those people are lawyer's and 22 some are non-ldwyers? 23 A. No lawyers work directly for- me, in Lite 24 sense of being a Monsanto employee who reports to WATER PCB-SD0000026996 Bis lline 20 1 in e . 2 Q So, the 20 people that you wore referrin y to, none of them are lawyers? 4 A . That's correct. 5 Q And, can you describe the job Lille or 6 pusitiuns that those 20 people hold? 7 MR. MALIN: I'm going Lo objecL to 8 that . 9 Thai, agdii), goes Lo the inner' 1 0 workings of Lire law deparlmenl and i L is nol 1 1 relevant, and can't lead to anything relevant. IL 1 2 is not relevant L o this motion. I direct tire 1 3 witness not to answer that question. 1 4 BY MR. KOHN: 1 5 Q. Well, do any of these 20 people gel 1 6 involved w i l h production of documents? 1 7 A . Yes . 1 8 Q Do some of them do no thi ng but work o n 1 9 produc Lion of documents? 20 MR . MALIN: I'm g o i n g L o object L o 2 1 that ques L i o n . The same objection as the last 22 objection I direct you not to answer 23 MR. KOHN: It's very limited. 24 MS. KRAMER : Excuse me, Mr- . Kohn , why WATER PCB-SD0000026997 Bis Lline 21 1 don't you direct yourself to them so LhaL wo cun got 2 out of here, 3 BY MR. KOHN: 4 Q. How many of those 20 people are 5 paralegals who work on producing documents in PCB 6 litigation? 7 A . Five. 8 Q. And how many of them axe clerical or 9 staff people who work on production of documents i n 1 0 PCB cases? 1 1 A. Thirteen. 1 2 Q. All right. 1 3 MR. GOUTMAN: Excuse me. 1 4 MR. KOHN: You can note another' 1 5 conference. 1 6 (Whereupon, a discussion was held off 1 7 the re c o rd. ) 1 8 BY MR. KOHN: 1 9 Q. And do you directlysupervise the five 2 0 paralegals who work on production of documents in 2 1 PCB cases, or is there an intermediate reporting 2 2 level between them and you? 23 A. No, they -- 24 MR. MALIN: Wait. I think that goes VDATTCC IX" A <"P *7 C S f 7 IT U HT TMf WATER PCB-SD0000026998 Bis Llinc 22 1 to the i n n e r work i n y s of L h e law drpurtmen L. And I 2 don' t t h i n k that' s a n a p p i' o pi- late question. I 3 direct you not t o answer. 4 MR . KOHN: I s that the inner workings 5 privilege? 6 MR. MALIN: This is work product. 7 At lorney-clien L 8 BY MR. K0HN : 9 Q And do the 1 3 staff 1 0 directly to you o r do they repo: 1 1 ox' some other individuals? - 1 2 MR. MALIN: Give me a minute. 1 3 Objection. I direct you not to 1 4 answer that question. 1 5 MR. KOHN: And the yround lor that 1 6 objection? 1 7 MR. MALIN: Same objec Lion. 1 8 MR. KOHN: And ins true Lion? 1 9 MR. MALIN: Same objec Lion . 20 MR . KOHN : 2 1 Q , To whom do you currenL1y reporL ? 22 A ,, Mr ,. Berend L. 23 Q And do you know to whom he reports? 2 4 A . Monsanto's yancral counsel. KRAUTS . R-AT7 ArJTKPMAM TMP WATER PCB-SD0000026999 Bis L1in u 23 1 Q <L, counsel? And, what is tli e name o the yeneral 3 A . Mr. R icliard W . Duesenbexy . 4 Q Mr . D uesenberg is a m e m b e x' or the board 5 of director s also 9 6 A . No, s i i', I don' L believe he i s . 7 Q I s 11 e considexe d a member o seiii o V 8 ma nayemen l? 9 A . Yes . 1 0 MR . MALIN: Excuse me. At Llii s poin 1 1 I would not e for the record , if there axe any p e o p 1 1 2 here who a r e not representi n y p a rLie s in this 1 3 litigdlion. IE s o, i they would say so or the 1 4 record, and let u s know wha L L h eiv in tore s L i n L11 i s 1 5 litigation is o i' tlx is depos iLion. 1 6 I note the p xesence o Ala n 1 7 Milstein. 1 8 MR . MILSTEIN : I do not r e p r c s out 1 9 anybody in this 1 itiya Lions 2 0 MR . MALIN: Y o ur interest is? 2 1 MR . MILSTEIN : My interest i s i n 22 hearing what the witness ha s to say. 23 MR. MALIN: Anyone else? 24 MR. ROSE: Leon Rose. I'm here with WATER PCB-SD0000027000 Bis Lline 24 1 A1 Mils Lein 2 MR . MALIN: A ill e m b e r of hi 3 MR. ROSE: Yes . 4 MR . MALIN : Sorry for tli e 5 interruption , but I though t it was n o cl (j u 6 MR. KOHN: No need to apol 7 BY MR. KOHN: 8 Q Have you repor Led to any one. 9 Mr. Berendt, since you hov e assumed res p o 1 0 over the P C B litigation? 1 1 A . No . 1 2 Q. Are there oilier individuals in Ihc law 1 3 department that hold a position of the same level as 1 4 you? 1 5 MR. MALIN: Wait. Mi'. Kohn, you're 1 6 not dealing with the burden some ness issue at all. 1 7 It seems to me that's a very narrow issue. 1 8 Getting into the question of the 1 9 workings of the law department appears to be 2 0 irrelevant, and very far- afield, and I'm going to 2 1 direct the witness not to answer', and I request 111 at 22 you concentrate on the issues that are relevant, and 23 Cor which this deposition was permitted by Judge 24 Avellino. WATER PCB-SD0000027001 Bis LI i lie 25 1 MR. KOHN: Well, I Lhink the 2 staffing, the sie e, the quality of the people who 3 are involved in gathering and producing Die 4 documents goes to the question of whether or not it 5 is bimlensome . 6 Tli is witness has made certain factual 7 allegations with respect to burden, and I Lhink 8 we're allowed to probe whether or not this is a one- 9 man operation or whether' it's a 10 0-man or 100 1 0 person operation. And whether they could borrow on 1 1 their resources and talents and efforts of other' 1 2 people in Die company. Now, that's how it's 1 3 relevant to burden. You chose to interject an 1 4 affidavit from the law department, I didn't. 1 5 MR. MALIN: The degree of 1 6 burden so men css, I suggest is, and the number- of 1 7 people that are able to work on it only shows h o w 1 8 burdensome it can be. It's a ques Lion of how m a n y 1 9 people have to work on it. That's relevant, and, 2 0 therefore, I suygest Diat degree of relevance is 2 1 such and so tenanted, that Die question is 2 2 objectionable. I direct the witness not to answer 23 i t . 2 4 MR. KOHN: On Die grounds of vv a nca i,h'7 r. a r v p p m a m t mn WATER PCB-SD0000027002 Bis lline 26 1 relevance? 2 MR. MALIN: And, o course, Ihe inner 3 workings, work produce, and dltoniey-clienl. 4 BY MR. K 0 H N : 5 Q . In cornice lion with your work as Lhc 6 supervisor- of Lite PCB 1iLi yd Lion, have you e v e r It a d 7 occasion to re Lain outside consultants or- fir- m s Lha L 8 specialize or work on 1iLi yution s u p p o r L? 9 MR . MALIN: I object to tha t 1 0 question. T h a t ' s u t e r 1 y i rrelevdn L Lo any is s u e 1 1 that's before u s . IL cert a inly lias nothiny to do 1 2 with anything Lha L ' s in Lit a L affidavit. I direct 1 3 the witness no t to answer- 1 iL . 1 4 BY MR. KOHN: 1 5 Q. Have you ever- used the firms or any of 1 6 the services of any outside computer fir-ms in 1 7 connection with producing documents in RGB 1 8 1 itigation? 1 9 MR. MALIN: Well, don't answer- the 2 0 question. 2 1 MR. KOHN: And the reason for- that 22 instruction? Or are you thinking of one? 23 (Whereupon, a discussion was held off 24 the record.) Tjr D ft TJ n r> T.' rr, r- * rr t . r~ s a * WATER PCB-SD0000027003 B i a 11ine 27 1 MR . K0 HN: I reque s L Ilia L you not 2 confer w i L h t h e w i L n e a a duriny hi a exuiuinu lion, 3 specif i c a 1 1 y wli i 1 e d question is pending. 4 P 1 ease no Lc the co nforonco over our 5 objection. 6 MR. GOUTMAN: Pleuse do not stale 7 c o m m e n t s o n t h e rue o r d w li i 1 e w e 1 re conicr rin y, 3 because we ca n ' L 1 i ate n to bo Lli a t L h e same Lime 9 It's a courtesy L o u a . Thank Y o u . 1 0 MR. KOHN: IE you continue to confer 1 1 with lh e witness while the q u e s Lion is p e n din y, we 1 2 will make whatever- comments o n L h e record we deem 1 3 dppropria L e . 1 4 (Whereupon, d discussion was held o 1 5 the record.) 1 6 MR . KOHN : Could you rcu d LhaL b a c k 1 7 MR . MALIN: The pendi ny ques Lion 18 (Whereupon, L h e pr'evi uus portion o 1 9 the notes o testimony was read by the court 2 0 reporter.) 2 1 MR, MALIN: I objecl to the question 2 2 on the grounds that it's privileged. It's work 23 product, attorney-client privilege. I direct Hie 24 witness not to answer' that question. WATER PCB-SD0000027004 Bis Lline 20 1 BY MR. KOHN 2 Q. Have you ever utilised the services o 3 employees of MunsdiiLo, whether' or' not employed 4 within the law department, in connection with the 5 production of documents in any PCB litigation? 6 MR. MALIN: Objection. Same 7 objection. 8 BY MR. KOHN: 9 Q. When did you first become aware of any 1 0 litigation involving Monsanto with respect to the 1 1 Paoli, Pennsylvania Railroad Yard? 1 2 A. I don't recall the precise date, Mr. 1 3 Kuhn , but iL was at or a b o u L Lh e Lime that Monsanto 1 4 was sei'ved in the firs L of Lh e Paoli C d y c u 1 5 My best recollection at this point is 1 6 that was some time in 1986, but I'm not positive. 1 7 Q Did y o u as sums th e supervisory role with 1 8 re s pec t to that 1 i t i g a L i o n , l1 3 you had with other- 1 9 PCB litigation? 2 0 A . Yes. 2 1 Q. And can you describe the various 22 activities that you have undertaken with respect to 23 your- supervise r y role of the Paoli PCB litigation? 24 MR. MALIN: I'm going to object to WATER PCB-SD0000027005 Bis L1in e 29 I Lhat question. That calls [or disclosure of his 2 mental impressions, strategies, et cetera, and 3 that's attorney work product. I direct you not to 4 answer- . 5 MR. KOHN: You musL have 6 misunderstand the question. I wasn't asking tor- any 7 mental impressions or- strategy. It was simply 8 asking for the functions that you have generally 9 performed with respect to your supervision of the 1 0 Paoli PCB litigation. 1 1 MR. MALIN: Well, that calls tor 1 2 disclosure of strategy and Lire methods of operation 1 3 that have been selected for defense of our 1 4 litigation, and it's privileged, and I direct Lire 1 5 witness not to answer-. 1 6 BY MR. KOHN: 1 7 Q Ar e you able to answer' that ques L i o n i n 1 8 any manner. w i tlrout disc 1 o s i ir g men t a 1 imprus s i o n s / 1 9 and legal s L r a t e g i e s ? 20 MR. MALIN : The witness doesn ' L ha v c 2 1 t o answer' t h ei. t q u e s Lion. 22 MR. KOHN: Well, I think Lhat will b u 23 for another' a a t horiLy to d e ter- m i n e whether' he lldS L o 2 4 or- has not, if you are instructing him not to WATER PCB-SD0000027006 Bis Lline 30 1 answer. 2 MR. MALIN: I am ins true Liny him not 3 to answer that question. 4 BY MR. K0 H N : 5 Q. Have you done any work with respect to 6 production of documents in connection with the Paoli 7 PCB litigation? 8 MR. MALIN: The witness may answer 9 that question. 1 0 A. Yes, I have. 1 1 Q. And do you recall when you first bey an 1 2 your w or k with r e s p e c L to pr oducL ion of documents in 1 3 the Paoli PCB 1 i L i y a L ion? 1 4 A . A t a bout the Lime Lha L we nreeived tire 1 5 demand for' production of documents from the 1 6 plaintiffs. I assume, Mr. Kuhn, LhaL you arc 1 7 talkiny about the Alston case here, when you say the 1 8 Paoli litigation. 19 Q. I meant to refer' more generally, 2 0 including the cases that were initially commenced in 2 1 the federal courts. 22 A. Oh, okay. Well, then, if you would 23 permit to amend tire answer' to this. 24 Q . Certainly. If D A FT C C V A rn *7 C X P 1/ P n U M T M /"* WATER PCB-SD0000027007 Bis lline 31 1 A. The work Ihdl was done to produce 2 documents for the. federal cases, ayain, would have 3 commenced at or about the time Lhd L we r eceived the 4 documents demanded there, and as modified by 5 Avellino's order. 6 Q When you received t h e document demands 7 i n t h e federal cases. did you o r did someone at your 8 behest, attempt to identify the t otal quantity of 9 documents responsive to those req u e s L s ? 1 0 MR. MALIN: My obj cc Lion Lo that 1 1 question as it's phrased is, havi ny been involved in 1 2 those cases myself, I'm not sure I know wild L you 1 3 mean by request. There was more than a request. 1 4 There were several cases. 1 5 Therefore, I'm not sure how the 1 6 witness can or even be capable of answering that 1 7 question. 1 8 I f the witness li a s a memory that's 1 9 far better" tlr a n m i no, I would assume he can attempt 2 0 to do so. but I do n ' L understand the q u e s Lion . 2 1 And, I would direct that the witness, 2 2 if you understand the question and understand what 2 3 t h e requests arc at issue, at one po i n L in Lime, you 2 4 can answer the ques Lion, but I am n o t aware of - - I WATER PCB-SD0000027008 Bis L1in u 32 1 mean , I can't y i ve you any guidance. because counsel 2 has n o t given u s any guidance as to wild L requests 3 are at. i s s u e . 4 A. Quite frankly, that was going to be my 5 q u e s t i o n bd ck to you. Mr- . Koh n , b e c a u s e there w.a 6 more t h a n o n e . T here was m ore than one demand. 7 Q. Did you attempt to identify the total 8 number' of documents responsive to any of the demands 9 in the federal litigation? 1 0 A . Yes . 1 1 Q And, did you idenLif y t li e total number 1 2 of document;> responsive to all of the demands in the 1 3 federal litigation? 1 4 A , I don't recall w h e L h e r we attempted to 1 5 scoop out the entire document demand. 1 6 Q. And can you recall how many documents 1 7 you determined were responsive to the document 1 8 request in the federal litiyation? 1 9 A. No, sir. 20 MR. MALIN: Just a minute. I direct 2 1 the witness not to answer, 22 Q. When you received -- 23 MR. MALIN: Excuse us, please. 2 4 MR. KOHN: Excuse me. WATER PCB-SD0000027009 Bis Iliac 33 1 (Whereupon, d discussion was held ollf 2 the record,) 3 MR. KOHN: I'm not sure if l he re was 4 a question pendiny or not. If you could road it 5 back . 6 MR. M A LIN : Would you read the 7 question back, please. 8 (Whereupon, the previous portion of 9 the notes of testimony was read by the court 1 0 reporter.) 1 1 MR. MALIN : I'd like to place o n the 1 2 reco r d the fact that, Mr' . Kohn, you have all a f the 1 3 docume n L s that were prod u c c d in L li e federal 1 4 1itiga t i o n . Those, obvi o u s 1 y , would be Lh o s c that 15 are responsive and 111 e witness determined were 1 6 responsive, and any questions beyond that, are both 1 7 privileged and not within the scope of Lhis 1 8 deposition. You have those. Those documents are 1 9 relevant only to the point that you have them, and 2 0 you have what we say are the documents that are 2 1 relevant and that needed to be produced in response 22 to your current requests, and that's it, you have 23 them . 24 And, accordingly, I would suggest WATER PCB-SD0000027010 Bis LI i lie 34 1 that you move onto other areas. 2 MR. KOHN: Well, I agree with you 3 that we have the documents you have produced. Where 4 we part company is that t.'nose documents are all the 5 d o c u m e n Ls th at are responsive to the r e q u e s L . 6 And that is what we are endeav o r i n y 7 to find out. 8 MR . MALIN: You are y oi n y into the 9 Eederd 1 1 i t i y a t i o n , whether- or not all t h e d o c u m e n t s 1 0 a r e i' e sponsi v e in the federal 1 i L i y a t i on . I ' m y o i n y 1 1 to ins t r u c t the w i t ne s s not to answer all of those 1 2 quest! o n s . 1 3 BY MR . KOHN : 1 4 Q Do you recall recei ving a copy of a 1 5 reques t for pi- o d u c Lion of docum cuts in tile A1 s Lon 16 case. that i s , t 1a e Paoli litiya Lion pe n d i n y i n the 1 7 Court of Common Pleas of Philadelphia County? 1 8 A . Yes, sir. 19 Q. And, did you do any thing in response to 2 0 receiving that request fox- production of documents? 2 1 A . Yes . 2 2 Q . And what did you do? 23 A. I reviewed the request for production of 24 documents, both with Mr. Maiin and with members of I'D 1 nee VIS T1 7 r. ArVUDMAM TATf WATER PCB-SD0000027011 Bis L1in e 35 1 my staff at Monsanto. 2 Q. And, which members of your- staff did you 3 review it with? 4 A. If would have been Miss Niblock, 5 initially. 6 Q. Did you do anything else in response to 7 receipt of the request? 8 A. I directed Miss Niblock to determine how 9 many documents or' to estimate how many doc um e n L s wo 1 0 m i g h t have to jreview in order to comply w i Lh a broad 1 1 interpretation of the requests for production, and 1 2 to estimate for me how much Lime and expense would 1 3 be incurred by Monsanto in that effort. 1 4 Q. And did you give that instruction to 1 5 Miss Niblock orally or' in writing? 1 6 MR. MALIN: I object to tliat. That's 1 7 -- hold on just a moment. 1 8 (Whereupon, a discussion was held off 1 9 the record.) 2 0 MR. MALIN: You can answer that 2 1 question. 22 A. The direction was an oral direction. 23 Q . And did she follow through with that 2 4 direction? WATER PCB-SD0000027012 Bib L 1 i n e 36 1 A . Yes. 2 Q Do you recall how much Lime she spent 3 certaini n g L li e intorma t ion you reques Led iicr to 4 certain? 5 A . I could only estimate that. Mr . K o 11 n . 6 And my estimate would bo, perhaps, a day's worth of 7 investigatory effort. 3 Q. Do you know how she went about 9 investigating that? 1 0 MR. MALIN: Objection. Don't answer' 1 1 that question. That has to do with the method of 1 2 document selection, and t loaf's work product and 1 3 privilege. 1 4 BY MR. KOHN: 1 5 Q. What leads you to believe or what 1 6 information do you rely on to support your1 estimate 1 7 that she spent approximately one day gat lie ring that 1 8 information? 1 9 A. Tli at is based on my discussions with 2 0 Miss Niblock and also with Miss Hurley. 2 1 Q Do you know whether she utilized a 2 2 written indexes in gathering that in forma Lion? 23 MR . MALIN: Objection . Same 24 objection as before. WATER PCB-SD0000027013 Bis L 1 i n e 37 1 Work product, dttorncy-clicnL Inner 2 workings of the law depdrlment, 3 BY MR, K 0 H N : 4 Q Do you know whe l h e r s h e u L i 1 i z e d a 5 computer', i n a ny way, shape o r for- m , i n commc Lion 6 with gather' i ng that info rma Lion 7 MR . MALIN : Same o b j e c L i o n . 8 BY MR. KOHN: 9 Q Hhd L was h e i' e is Lima L e as to the n u m b e r 1 0 of doc uments respo n s i v c t o the d o c u m c n L rogues L i n 1 1 the A1 s ton case? 1 2 A Miss Niblock f s e s L i ma Le was that w e 1 3 would have to review approx i m a L e1y , 5 0 0 ,000 page of 1 4 d o c u m e n L s in order to deter mi ne which were r clcVdll L 1 5 and pr o d u c able, purs Udllt L o the demand. 1 6 Q And, did s h e tell y ou which 5 0 0 page o of 1 7 d o c u m e n t s would have t u b e r e v i owed in order- l o 1 8 d e t e r m i n e that? 1 9 MR. MALIN: I assume you mean 500,000 2 0 pages . 2 1 MR. KOHN: Right. 2 2 A. By broad Cdtegory only, yes. 23 Q. And which category of documents would 2 4 have to be reviewed, according to Miss Niblock? WATER PCB-SD0000027014 Bis Hi nc 30 1 (Whereupon, a discussion was held off 2 the record.) 3 MR. MALIN: All right. I'm yoiny t o 4 object to the question as it's sLatcd, because i L 5 doesn't define with respect to Lite categories o 6 documents those that are in Lite request. 7 l you will rephrase the question 8 I'll per" in it the witness to answer' it. 9 BY MR. KOHN: 1 0 Q . Yes. Which categories o documents were 1 1 included in the 500,000 pages o documents LhaL Miss 1 2 Ni block indicated had to be reviewed? 1 3 A. Those would be categories of documents 1 4 that are reflected in the demands that are made in 1 5 the requests, Mr-. K o h n . 1 6 Q. So that she was able to determine Lha L 1 7 there are 500,000 pages, approximately, o documents 1 8 responsive to the categories of documents in the 1 9 Alston document request? 2 0 A. I would not say responsive. I would say 2 1 potentially responsive. Those documents would 22 require further review in order to determine whether 23 or not they did meet the criteria set out in the 24 demands. KR ATT SR K A T 7 C SrS'CBMIH T M r WATER PCB-SD0000027015 Bis Lline 39 1 Q. And do you hove any under standing as Lo 2 how she defined this universe of 500,000 documents 3 to ascertain that they were potentially responsive? 4 MR. MALIN: The witness may answer 5 the question. 6 A . Yes , I know how she went about iL. 7 Q How did she y o about it? 8 A . She consulL ed -- well, 1 e L m e s trike 9 that. 1 0 She did two basic Lhinys. first, 1 1 with respect to documents, which I would define as 1 2 litigation related, pleading related documents, 1 3 because of the demands, that we produce, 1 4 essentially, our entire litigation files fur other- 1 5 unrelated PCB cases, she consulted inventory sheets 1 6 and other information we have with respect to other- 1 7 unrelated cases in which we have been involved over 1 8 the years; looked at several of those files to 1 9 determine how many documents would be required Lo be 20 pulled, copied and reviewed to satisfy that per-Lion 2 1 of the demand, which included, as I recall, all 2 2 pleadings, all motions, all discover-y, all 23 depositions and all expert reports. 2 4 With respect to Line other- broad WATER PCB-SD0000027016 Bis Lline 40 1 category o discovery, which was sought, which I 2 would define, generally, as those relating to tire 3 business conduct of Monsanto in Lire manufacture, 4 production and sale of PCB's, and the area of health 5 effects of PCB's, Miss Niblock consulted information 6 we have developed. When I say "we," I mean counsel 7 representing Monsanto, both inside and outside 8 Monsanto, that provides us with information relating 9 to the contents of those business related and health 1 0 related documents. 1 1 Q . And does that second category of 1 2 document provide information with respect to the 1 3 total quantity or total number of documents relating 1 4 to those various subjects? 1 5 A . Yes . 1 6 Q. And is that also an inventory of some 1 7 kind of index? 1 8 MR. MALIN: I'm sorry. I don't 1 9 really understand the question. 2 0 BY MR. KOHN: 2 1 Q. The informationthat Miss Niblock 2 2 consulted with respect to the second category, the 23 manufacture of products, et cetera, was the 24 documents she consulted an inventory or' an index of WATER PCB-SD0000027017 Bis L 1 i n c 41 1 s o m e kind? 2 MR. MALIN: The witness may answer 3 tl'id t quest! on. If he knows Lhe answer. 4 A . I would not -- I would not call il. an 5 i n v e n 1. ory , no, sir. 6 Q What would you call it? 7 A , There a r e several sources o iiiLor malioii 8 that Miss N iblock would have consulted. One would 9 have, be e n a description of the categories of 1 0 informatio n into which those documents are 1 1 organized, and the other would have been a reporL 1 2 that w o u1d have been generated as a result of her 1 3 requests to estimate the number' of documents in Lite 1 4 various categories. 1 5 Q. And who generated that report pursuant 1 6 to her request? Who or' what? 1 7 A. That would have been a report generated 1 8 by a computer. 1 9 Q. And where is that computer located? 2 0 A. At Monsanto Company. 2 1 Q. At the corporate headquarters in St. 22 Louis? 23 A. That's correct. 2 4 Q. In your department or some other WATER PCB-SD0000027018 Bis 11in e 42 1 departmen L? 2 A . It's in the law department. 3 Q And, there's a hard copy, I take it, of 4 the report that was generated at her request? 5 A . There was a hard copy. I don't know 6 whether that hard copy still exists. 7 Q. Do you have a practice with respect to 8 retention of hard copies of those types of reports? 9 A . I'm not aware, of any. 1 0 Q Is it your practice to throw them away? 1 1 A . As I said, I'm not aware of any practice 1 2 we have with respect to reports of this particular 1 3 type . 1 4 G Am I correct, that Miss Niblock or' 1 5 someone working with her, made a royuos L, in some 1 6 manner, of a computer' by the description of 1 7 categories of documents she was looking for, and the 1 8 computer then gave her a report as to the quantity 1 9 of those documents in each category? 20 A . I think that accurately describes h e r 2 1 procedure. yes. 22 Q Did the report provide any information 23 other than Lire quantity? 2 4 A . I can't recall at the moment, Mr'. Kohn, WATER PCB-SD0000027019 Bis 11in e 43 1 whether it had other- information on it or not. I 2 just d on' t r e c a 1 1 . 3 Q Do you k n ow when Lh e data was input in 4 the compu ter- that was utilized in that report or 5 over what period of L im e it was input? 6 A . Well, it' s -- yes. I do know, general 1 7 when it was done . 8 G When was it dune? 9 A . 1983, and periodica 11y upda Led. 1 0 G Who was i nvolvud in periodically 1 1 u pda tiny it. if you k now? 1 2 A . Myself an d m e m b e r s of m y staff. 1 3 Q Have you personally input data in that 1 4 computer? 1 5 A. Not directly into the commuter, no. 1 6 Q. Have you given information to someone 1 7 else to input into the computer? 1 8 A. Yes . 1 9 Q. What information, other' than these 20 categories and the number' of documents that fall 2 1 into these categories, can one obtain from that 2 2 computer with respect to those documents? 23 MR. MALIN: Objection. That's 24 attorney work product. The selection of the WATER PCB-SD0000027020 Bis LIine 44 1 docume n t s Lh at y o i n to that c omp u Ler i s priv i 1 e y e d 2 inf o r m a Li o n , and the witness is diron. L e d not L o o1 >i 3 a n s wer a n u e s t i oils which r elate to L h at s u b j e c L . 4 BY MR . KOHN: 5 Q Does the eompu ter' have the capability L o 6 i d e n ti fy t h e documents by the name of Lhe author o r 7 the n a m e of l h e r ecipient o f t h e documents? 8 MR . MALIN: Sa me objection. 9 MR . MALIN : Sd me objection. 1 0 BY MR. KOHN: 1 1 Q. Dues the computer have the capability to 1 2 identify documents by the date of the document? 1 3 MR. MALIN: Same objection 1 4 BY MR. KOHN: 1 5 Q. Does it have the capability to identify 1 6 the document by the subject matte x' of the document? 1 7 MR. MALIN: Same objection. 1 8 Q. Now, the existence of this computer 1 9 system has been disclosed in other litigation, 2 0 hasn't it? 2 1 A. The existence of it has, yes, that's 2 2 correct, 23 Q. And the information that is contained in 2 4 the compute i' has also been disclosed in other' WATER PCB-SD0000027021 Bis Lline 45 1 litigation? 2 A. No, six-, I would not say that l ho 3 information contained in the computer has been 4 disclosed in other litigation. 5 Q. What is the. total numb ex' of documents 6 that have been referenced, in some way, in Lite data 7 bank of that computer system? 8 MR. MALIN: Objection. I instruct 9 you not to answer' on the same basis. 1 0 Q. Are there documents which pertain to 1 1 polychlorinated biphenyls in Monsanto's possession 1 2 which have not been indicated or recorded in some 1 3 way in that computer system? 1 4 MR. MALIN: I direct the witness not 1 5 to answer. That's a t Lorney work produc t and the 1 6 selection process of what goes into the litigation 1 7 support system. 18 MR. KOHN: Hell , I think we have a 1 9 right do probe whether -- excuse me . I apologise . I 2 0 don't want to speak while you're confer ling with the 2 1 w i t n e s CJ 22 (Wliereupon , a d i s cuusion was held off 23 the record.) 2 4 MR. MALIN: I'm going Lo permit Die KRAI1SS . KATZ fi ACKERMAN. TNC. WATER PCB-SD0000027022 Bis L1 i ne 46 1 witness to answer that ques Lion. 2 A. Could I get that read buck so I have it 3 clear in mind, please? 4 (Whereupon, the pr evious .pur Lion uf 5 the notes of testimony was read by the court 6 reporter.) 7 Yes, there arc 8 Q . How m any s uch documents are there? 9 A . I do n ' L know the number', Mr. Kuhn . 1 0 Q . Hlio does know the number? 1 1 A . I ' m not. s u i' e anybody knows precisely the 1 2 numb er . My pred fc!C0S SOI', as supervising attorney for 1 3 PCB 1 i tigation, may have an idea. But I'm not 1 4 sure . 1 5 Q Do you know wheLher those documents 1 6 which were not input into tire computer', arc still in 1 7 existence? 1 8 A . Yes, they are. 1 9 Q And where physically are those 2 0 uments? 2 1 A . They are at Monsanto Company. 2 2 Q In St. Louis? 23 A . Yes . 24 Q In the corporate headquarters WATER PCB-SD0000027023 Bis LIinc 47 1 storage facility? 2 A, I think they're probably in the storage 3 facility. 4 Q Do you have an estimate as to 5 roorn i n the storage f a c i 1i Ly they L ake up? 6 A . No, sir1, I don ' L . 7 Q Have you ever- seen Lho s e d o c u m 8 spec i f i c a lly 9 9 A I have seen some of them . I have not 1 0 seen a 1 1 of Lh eiii . 1 1 Q How m a ny have you s e e n ? 1 2 A Severn 1 boxes. P or h ei p Sb f a S in any a s 2 0. 1 3 Q Do you know w li e L h e r anyone reviewed 1 4 thos e doc urn e n t s as to asoerta i n whether any of Lh C Jit c 1-4 *c k-< c c. 1 5 were X' e s p o n s i v e to the reques t f u c Lion i n Lh c 16 Alston case? 1 7 MR. MALIN: Don't answer the question 1 8 yet. I want to think about it. 1 9 (Whereupon, a discussion was held off 20 the record.) . 2 1 MR. KOHN : I would request that you 22 not confer with the witness during Iris examination. 23 MR. MALIN: The witness may answer 24 the question. WATER PCB-SD0000027024 Bis lline 48 1 A. Can I have the question back, please? 2 (Whereupon, the above portion of the 3 notes o E testimony was read by the court repo rL cr . ) 4 A . Those documents w e r c not rcviewed 5 specifica 1 1 y in connection with the Alston case 6 Q Do you know whe L h e r those d o c u m e n t s w ere 7 reviewed in connection with any o E the P a o1i 8 Raili'oad Yard PCB cases? 9 MR . M A LIN: I'm going to object. 1 0 Those other cases are irrelevant for the reasons 1 1 that were s L a L ed previously. I direc L the witness 1 2 not to answer. Til e documents in those cases were 1 3 produced and you have them. 1 4 MR. KOHN: I'm trying to yet at 1 5 whether anybody looked at the 20 boxes or anything 1 6 else that was in storage to determine whether' there 1 7 might be something else inside those boxes that was 1 8 responsive to the request. 1 9 Do you know whether' anybody looked at 20 them? 2 1 MR. MALIN: That'' s not the reus o n 22 we're here for- this deposition. I direct the 23 witness not to answer- the question with respcc L t o 2 4 whether or' not they were looked a t for pur'pose 'J of WATER PCB-SD0000027025 Bis Lline 49 1 the federal litigation. 2 BY MR. KOHN 3 Q. Were they looked at in connection with 4 live slate court litigation? 5 MR. MALIN: The witness lias answered 6 that question. The question has been asked and 7 answered. 8 BY MR. KOHN 9 Q Whd L ar e the var ious ca tegor ies of 1 0 documents that are recorded on the computer- system? 1 1 MR. MALIN: I have already objected 1 2 to that, question. And I direct the witness not to 1 3 answer it. You've asked it a few times, and you're 1 4 starting to repeat yourself. Maybe this deposition 1 5 is over. 1 6 BY MR. KOHN 1 7 Q You can answer. What other' categories? 1 8 MR. MALIN: Object. I instruct the 1 9 witness not to answer- that. And I object to the 2 0 question. Attorney work product. Attorney-client 2 1 privilege. 2 2 BY MR. KOHN 23 Q Where are the hard copy of the documents 24 which are indexed on the computer system? WATER PCB-SD0000027026 Bis llinc 50 1 MR. M A LIN: You want to know 2 physically where they're located? 3 MR . KOHN: Right. 4 MR. MALIN: I think the witness can 5 answer t h a L question. 6 A. At Monsanto's corporate headquarters in 7 St. Louis. 8 Q. All o them are available in that one 9 location? 1 0 A, Yes. 1 1 Q. And - 1 2 A. Well, letme understand whaL you are 1 3 referring to. Is this question dir-acted 1 4 specifically at the documents that axe comprehended 1 5 within the computerized litigation support system? 1 6 Is that the question? 1 7 Q That's the q u e s Lion . 18 A . Tli e answer- i s , yes. 19 Q And do you know physically, how much 2 0 room the hard copy of those documents take up? I'm 2 1 talking about the ones that are just input into 11 i o 22 commuter system. 23 A . Precisely, n o . 24 Q Do you hav C cl I' easo liable estimate? WATER PCB-SD0000027027 Bis L 1 i n e 51 1 A . Many shelves full of boxes, I can't 2 give you an exact number. Perhaps, as many as 20. 3 Q. Twenty shelves? 4 A. Yes. 5 Q. Does every document that lias been input 6 into the computer, have an identifyiny number? -T/ MR. MALIN: I'll object to that. 8 That yoes to the workings of the 9 sy stem. a n d ca Legor ixation. I dire c L the w i t n 1 0 n o L to answer'. 1 1 MR . KOHN: Well, our- posit ion i U L 1 \ rJ. L 1 2 i t also yoes to the ease or bur' densomenes s o f 1 3 pr od u c t ion. A nd we would reque s L an answer- L o Iha L 1 4 s i m p 1 e gues t ion, wh ether1 there is a n urn or' i c a 1 syyLem 1 5 of a n y kind to iden Lify the doc u m e n L s i n the 1 6 computer 1 7 MR. MALIN: Objection stands. There 1 8 are ways of getting at the questions. You haven'L 1 9 asked any of the real questions about why it's 2 0 burdensome. You're a skiny questions which arc 2 1 intended to find out what is on the system r 2 2 basically, a n d that's all privileged. The q u e s Lion 23 w i t li respect to burde n s o in e n e s s , you h a v e n ' t eve n 2 4 begun to ask WATER PCB-SD0000027028 Bis lline 52 1 MR. K 0 H N : Maybe you and I speak a 2 different 1 a n g u a g e. 3 MR. MALIN: I think we did. 4 Q. Are the full text of the documents in 5 the computer? 6 MR. MALIN: You can answer' that. 7 A , No , 8 Q. Are there portions of the text of 9 documents in the computer'? 1 0 A . No . 1 1 Q. Arethere summaries of the contents of 1 2 the documents in the computer? 1 3 MR. MALIN: You can answer' that. 1 4 A . No . 1 5 Q. What is your understanding of how the 1 6 computer can identify documents by the the category 1 7 of tire document? 1 8 MR. MALIN: I'm going to object to 1 9 that on the same basis s the others. 20 Q 0 ther than the reports that Miss N i b 1 o c k 2 1 provided L o you a f t e i' tire, approximately one day 22 that she spent, did she give you any other- 23 information with respect to how many documents are 24 responsive to the request in the Alston case? WATER PCB-SD0000027029 Bistline 53 1 A. I'm nut sure I follow your question, Mr . 2 K o h ii . 3 Q. You previously stated that Miss Nib lock 4 provided you with certain information in response to 5 your request that she identify the number- of 6 documents responsive to Alston. My question is, did 7 she provide you any other information, other Lhan 8 that to which you've already testified? 9 A. ' She answered questions that I asked h cr 1 0 ab out the information that she provided me. 1 1 Q All right., How do you go about 1 2 ob ta i n iny a hard copy of a particul a r document that 1 3 has been input into the computer? 1 4 A . I usually ask Miss Nibl ock for- it. 1 5 Q. Do you know how she goes about yet Liny 1 6 it? 1 7 A . She would -- if sire does not have the 1 8 documen t in her office, she would ei L h e r a c c e s s the 1 9 computer s y s te m to determine where i t is in Lite 20 file, locate it in that fashion, or- she would d i r e c t 2 1 one of our clerical staff to do that. 22 Q. What information docs the computer yivc 23 her with respect to where it is in the file? 24 A. I'd like to confer with my counsel fox- a WATER PCB-SD0000027030 Bis Lline 54 1 moment, please. 2 (Whereupon, a discussion was held off 3 the record.) 4 MR. KGHN: I know you'd like to, but 5 we do object to that procedure, 6 THE WITNESS: Could I have the 7 question back, again, please. 8 (Whereupon, Lhe previous portion o C 9 the notes oE testimony was read by Lhe court 1 0 reporter.) 1 1 A. It yives her a document number'. 1 2 Q. And then the documents, the hard copy of 1 3 the documents are organized by consecutive document 1 4 n umber? 1 5 A . Yes . 1 6 Q And I take it, if they're stored in file 1 7 jackets or boxes the number- of documents contained 1 8 in that file or- boxes is noted on the outside of the 1 9 file or box? 2 0 A . You mean, tire document number'? 21 Q Right. Tire box number- o n e containing 22 documents through 1,000, that's noted on the 23 outside of the box so you can readily see that? 24 A . That's correct. WATER PCB-SD0000027031 Bis tl i tie 55 1 Q. Wild t is the numbering used? Is the 2 first document number one? 5 A . No. 4 Q. Do you know what it is? 5 A. It's a six digit number. The first 6 document number' is five zeros and then one. 7 Q. Is there aletter prefix Monsanto's 8 0001, some such number? 9 MR. MALIN: I object to that. That 1 0 gets into the categorization and that's privileged. 1 1 BY MR. KOHN: 1 2 Q Is there a prefix 111 e n , f or each of the 1 3 various categories and t hen a n umbo r i ng s y s Lem one 1 4 through -- 1 5 MR . MALIN: Objection. Direct the 1 6 witness not to answer'. 1 7 MR. KOHN: We've been here about an 18 hour. This may be a good time to tak e a short 19 break, and then we'll go through uriti 1 lunchtime. 20 (Short recess was then taken.) 2 1 BY MR . KOHN : 22 Q Back on the record. Was this computer' 23 system that we've been discussing , u t ilized with 24 respect to the production of the documents that have #ncc C7\rP'7 r t m r1 WATER PCB-SD0000027032 B i s 1.1 i n e 56 1 been produced in the Alston case? 2 MR. MALI [4: I'm yuiny to object to 3 that question on the grounds that I don't understand 4 precisely what you are askiny. 5 Therefore, the question is Loo 6 vague. I d i r e c t the witneu s not to an swer u n 1 7 it's cldrif i ed . 8 BY MR. K 0 H N : 9 Q Do y ou understa nd the ques Lion 1 0 A . No . 1 1 Q Mens ante has p r oduced some doc u m e n Lu i n 1 2 tire Alston case; correct? 1 3 A . Yes . 1 4 Q And do you know whether or n o t the 1 5 commuter sy stem that we 1 ve been discus siny was u s e d , 1 6 in any way. w i tli respect to the pr od uc Lion of L li o s e 1 7 documents? 1 8 MR . M A L I N : Are you talking about all 1 9 o f the documents and not those which are the subj e c L 20 of this motion? 2 1 MR . KOHN: Well a n y . 22 MR . M A L I N : Any and all documents? 2 3 MR . KOHN: The documents L 11 a t we've 2 4 a c tually received is L h r ee pieces of paper1. Was L h e WATER PCB-SD0000027033 Bis Lline 57 1 compute i' used in connection with that process? 2 MR. MALIN: Hold on just a moment. 3 So, you die talking about each and 4 every request and not just, the foul' that are at 5 issue here? 6 MR. K 0 H N: No. I want to know 7 whether anybody used that computer in or'dor- to 8 select, find, ascertain or, in any other fashion, Lo 9 provide us those few documents which we have already 1 0 received from Monsanto. 1 1 MR. MALIN: The witness may ans wor 1 2 th e question, if he understands it. 1 3 A. I believe so, yes. 1 4 Q. And could you describe the process that 1 5 was utilized to produce those documents Lo us? 1 6 MR. MALIN: I'll object to that on 1 7 the grounds that that yets into categorization of 1 8 documents, and that is work product and work product 1 9 privilege. I direct tire witness not to answer- the 2 0 question. 2 1 BY MR. KOHN: 22 Q. Do you know whether that computerized 2 3 system has been utilized in connection with the 24 production of documents in other PCB cases? WATER PCB-SD0000027034 B i s 11 i n e 50 1 MR . MALIN: It's i it e 1 e v a n t . I n 2 a d d i t i o n to the las L objection L h a t. I made. and I 3 d i r e c t th e witness not to answer it 4 MR . KOHN : Well, we ' v e asked for- 1 h e 5 docume n t s produced in the o Lher lit i g a t i o n s ., T h a L ' 6 one of the issues before tire judge. 7 I want to know if the computer' system 8 was utilized in connection with producing the 9 documents in those other cases. 1 0 MR. MALIN: Not all other PCB cases. 1 1 The issue is narrow, at this point, as 1 2 burdensomeness, and the issue of what documents were 1 3 produced in other cases is marginly relevant, if at 1 4 all. I direct the witness not to answer-. 1 5 MR. KOHN: Are you withdrawingyour 1 6 objection to production of the documents produced in 1 7 other cases? 1 8 MR. MALIN: Of course not. 1 9 MR. KOHN: Well, then, I'd like to 2 0 know whether the computer- system was utilized, 2 1 whether or not you determined tire quantity of 22 documents to be produced in other PCB cases. 23 MR. MALIN: Hold on. 24 (Whereupon, a discussion was held off WATER PCB-SD0000027035 Bistline 59 1 the record.) 2 MR. KOHN: Please note the huddle 3 between counsel and the witness. 4 (Whereupon, a discussion was held off 5 the record.) 6 MR. MALIN: The objection stands. I 7 instruct the witness not to answer'. 8 BY MR. KOHN: 9 Q. Was t he computer system utilized with 1 0 respect to the production of documents in the case 1 1 of Scott, et a 1. v. Monsanto? 1 2 MR. MALIN: Same objection. 1 3 BY MR. KOHN: 1 4 Q . Do you have any policy or' practice with 1 5 respect to affixing consecutive document numbers on 1 6 documents that are produced by Monsanto to 1 7 plaintiffs in PCB litigation? 1 8 MR. MALIN: Objection. Objection. 1 9 That's not relevant to the issue that's before us 20 now, and i s also work pr od uc t . 2 1 MR . KOHN: Well, how can it be work 22 product when the fact of placing a number' on Die 23 document i s disci o s e d t o everyone who receive s the 24 document? WATER PCB-SD0000027036 Bistline 60 1 MR . MALIN : I don't have t o explain 2 i t ., The objec tion s Lands, O MR . KOHN : You mean, you do n L 'nave 4 t o explain it now . 5 BY MR. KOHN: 6 Q. I've placed before you a document which 7 was marked at a deposition in the case of Catherine 8 Bxewer versus Monsanto Corporation, in the United 9 States District Court for the Middle District of 1 0 Tennessee. A letter from Papageorge, Deposition 1 1 Exhibit 6. 1 2 I don't have any extra copies of this 1 3 document right now, but we'll get them Cor' counsel 1 4 at the break. 1 5 I place before you the referenced 1 6 exhibit. I direct your attention to the lower- 1 7 right-hand corner of the document, which contains 1 8 the letters BRW and the numeral 001874. 1 9 Do you recognize those numerals and 2 0 the prefix as having been placed on the document by 2 1 Monsanto prior to its production in that case? 22 MR. MALIN: You can answer that 23 question. 24 A. Yes. KR A US8 K A T 7 Z irZEBMiH TMC WATER PCB-SD0000027037 Bis lline 61 1 Q . And is it Lh e practice or- policy of 2 Monsanto to place simila r numbers and letters o n 3 documents produced t. o pi a i n l if s in PCB litiyut ion? 4 MR. MALIN : Same objection, 5 Q. Do the lette rs BRW affixed to this 6 Deposition Exhibit 6, in the Brewer' case stand for' 7 Brewer, to yuur knowledy e? 8 A I believe that's correct, yes. 9 Q. Are there different letter prefixes 1 0 attached to documents produced by Monsanto in other- 1 1 litigation? Fox example, Paoli. 1 2 A. Tire answer is, yes. Do the documents 13 produced in each such litigation receive an 1 4 individual letter- prefix? 1 5 A. That's correct, yes. 1 6 Q. And are the documents produced in those 1 7 litigations then numbered beginning with the numbers 1 8 five zeros and one? 1 9 A. I believe that's correct, yes. 2 0 Q. And, do you -- by you, I mean Monsanto, 2 1 does Monsanto retain a list or- s chedule by L h e 22 p r e f i x and document number provi d e d in any 23 part icular case, of the document s provided to the 2 4 p 1 a i n t i f f s in those cases? WATER PCB-SD0000027038 Bis Lline 62 1 MR. MALIN: Don't ciiiswer yet. 2 (Whereupon, a discussion was held off 3 the record,) 4 MR. MALIN: I'm directing the witness 5 not t. o answer t h a t question on t h e yruundu oC 6 attorney work product. It goes directly into the 7 thought process selection. 8 MR. KOHN: No, I'm not askiny how the 9 documents were collected. I'm simply askiny him 1 0 whether he keeps a record of the number of documents 1 1 produced in any given case. 1 2 MR. MALIN: Same objection. 1 3 BY MR. KOHN: 1 4 Q. Do you know of any data beiny input into 1 5' the commuter with respect to whether- or- not any i 6 particular document has or- has not been produced in 1 7 any particular litigation? 1 8 MR. MALIN: Objection. Same 1 9 objection. 20 BY MR. KOHN: 21 , Q. In other words, could somebody yo to 22 that computer and, say, for document number' one in 23 the universe of documents, determine in which cases 24 that document had been turned over to the WATER PCB-SD0000027039 Bis Lline 63 1 plaintiff's counsel? 2 MR. MALIN: Objection. Same 3 ubjectiun. 4 Don't answer' the question. 5 BY MR. KOHN: 6 Q. Is there any sort of computerised record 7 o documents generated in litigation, Lliat is, the 8 pleadings , motions and briefs t hat are generated i n 9 PCB 1 i t iga t ion? 1 0 A . The answer' is, no. 1 1 Q There arc, though, certain schedules or 1 2 inventories of such documents; is Lliat correcL . 1 3 (Whereupon, a discussion was held oIE 1 4 the record.) 1 5 MR . KOHN: I continue to object 1 6 this practice of the witnes s confcrring w i L11 h 1 7 counsel while the ques tion is pending. 1 8 MR. GOUTMAN: We understand your' 1 9 position on that. 2 0 MR. KOHN: It's patently improper. 2 1 If you would stop doing it, we won't have to note it 22 every time it occurs. 2 3 THE WITNESS: Could I get that 24 question back please. WATER PCB-SD0000027040 B i s 11 i n e 64 1 (Whereupon, the above portion ol the 2 notes of testimony was read by Lhe court reporter . ) 3 A. _ I believe, Mr. Kohn, you're referring to 4 the testimony that I previously yave about documents 5 or information tit at Miss Nib lock consulted, and Lite 6 inventories and schedules that. I refer'red to, arc 7 not specific to the document. They are lists of 8 files, in the sense of case files that have been 9 removed from the active cases in litigation to 1 0 s torag e . 1 1 Those inventories don't enumerate Lite 1 2 contents of each file beyond noting that case X is 1 3 contained in a particular location in Lite 1 4 warehouse. 1 5 Q. All right. The materials that are in 1 6 the warehous e, a r e there any kind of 1 i s t i n y s o r 1 7 inventories that are kept, a docket sheet, if you 1 8 will, of the pleadings and motions and briefs in a 1 9 particular case? 2 0 A. Only those contained internal to the 2 1 file. There's no external master control list of 22 the type that I believe you are inquiring about. 2 3 Q, Does your office utilise word processing 24 equipment of any kind with respect to the WATER PCB-SD0000027041 Bistline 65 1 preparation of those docket sheets in Lite individual 2 files? 3 MR. MALIN: Object. He hasn't 4 testified there die any document sheets in 5 individual files that are prepared. So, I object to 6 the question. 7 MR. KOHN: Could you read back two 8 questions ago and Lite answer'. 9 (Whereupon, Lite above portion of the 1 0 notes of testimony was read by l he court reporter . ) 1 1 BY MR. KOHN: 1 2 Q. My question is as to those documents 1 3 whic h you stated were internal to 111 e file. Were 1 4 those document s t y p e w i' itten documents? 1 5 A. Yes . 1 6 Q . And were they typed on a word pr ocessing 1 7 machine of some kind? 1 8 A. That would depend, Mr. Kohn, on when the 1 9 index was created. 20 Q When is L h e tip p oi nt when they were on 2 1 word processsing and who n would they ever' not have 22 been on word proces sing? 23 A . I ' m n o L s u i' e I know the answer- to that. 24 Q Do you know if M o n s a n t o had word WATER PCB-SD0000027042 Bis Lline 66 1 processing e q u i p m e n L throughout the 1980 S 2 2 A . I can only speak to L11 e Lime Ilia l I was 3 e m p 1 o y e d . And as of 1982, word procossi n y e q u i p in e n L 4 was used. yes. 5 Q And do you know whe ther the disks which 6 contained these internal inventory sheet s ai'c still 7 in existence? 8 MR. MALIN: He hasn't testified there 9 axe such disks. I object to the question as such. 1 0 I direct him not to answer. . 1 1 BY MR. KOHN: 1 2 Q. Do you know whether there are any disks 1 3 on your word processing equipment? 1 4 A. Unfortunately, I'm not that 1 5 sophisticated in the wo rkings of elect runic word 1 6 processing. 17 Q 1 8 you? You do know wh at a floppy disk is. d o 1 9 A . I do know what a floppy disk is. T o the 2 0 best of my information and understanding -- I' m out 2 1 of my area here -- is that there are no disks that 2 2 contain that .information that yoes back any lenyth, 23 his torically. 2 4 Q. What historical length are the disks in WATER PCB-SD0000027043 Bis Lline 67 1 existence for? 2 A . Only Eor very recent yccirs , 3 Q Which years? Can you be any inor 4 specific? 5 A . Since, probably, early 1987 . 6 Q And do you have in your possession 7 hard copies of the inventories with respect to 8 1 i t i y a t i on since 1987? 9 A . I ' m n ot quite sure I understand what you 1 0 mean by inventories with respect to litiyaLion. 1 1 Q. I mean, the inventories of the 1 2 particular pleadings, motions, briefs in the cases. 1 3 A. I assume wliat you are tulkiny about is a 1 4 docket sheet, and those are contained in litiyaLion 1 5 files, yes. 1 6 Q. Okay. In addition to beiny contained in 1 7 the individual litiyation file, do you have 1 8 collected for your own reference, the docket sheets 1 9 from some gro j of litiyaLion? 2 0 A . No . 2 1 Q . Do you know whether anyone else at 22 Monsanto has such a collection? 23 A. I'm not aware of any. 24 Q. Have you ever been asked to provide WATER PCB-SD0000027044 Bistline 68 1 copies of all of the document sheets in the cases 2 where docket shee ts arc available in con noeticn with 3 the Alston case? 4 A . Y o u ' r e going to have to repeat that one 5 because you lost m c . 6 MR . MALIN : Yes, I'm lost, 7 Q. Ha s a nyone ever requested that you 8 provide copies of the document sheets from the 9 various litigatio ns In connection with the Alston 1 0 litigation in Phi ladclphia? 1 1 A . Ar e y ou asking me, sir, whether your- 1 2 document demand c untains a request for litiyution 1 3 document sheets; is that the question? 1 4 Q . Well , you can start, with that , Does our 1 5 request for documents contain such a request? 1 6 MR. MALIN: I object to that. You 1 7 know what it contains. It speaks for itself. Don't 1 8 answer that question. 1 9 BY MR. KOHN: 2 0 Q H vc you made any effort to obtain tiros c 2 1 docket sheets in response to the ceq ues L for' 22 production of documents? 23 MR . MALIN : Hold o n . 24 (Whereupon, a discussion was held off WATER PCB-SD0000027045 Bis Lline 69 1 the record.) 2 A. My understanding. Mi'. Kuhn, is that we 3 have objected to that request. 4 Q. Riyht. So, you have made no efToit to 5 obtain those documents? 6 A. I don't understand what you mean by no 7 effort. We are declining to provide them to the 8 plaintiffs in this case, if that's the intent of 9 you i' question. 1 0 Q. Do you have any idea how long it would 1 1 take you to obtain copies of those documents and 1 2 drop them in the mail to us? 1 3 A. That would take a -- 1 4 MR. MALIN: Hold on. 1 5 I'm going to object to that question 1 6 on the grounds it's vague. I'd like you Lo specify 1 7 precisely what documents you're Lalkiny about that 1 8 you want copied and dropped in the mail. 1 9 MR. KOHN : The docket sheets lor the 2 0 cases that are still on the disks of the word 2 1 processing equipment, which I understand is the 22 docket sheets since 1987. 23 MR. MALIN: I object to the question, 2 4 insofar as it says that we are willing to produce WATER PCB-SD0000027046 Bis 11 i n e 70 1 them and drop them in the mail . W e 1 v e objected L o 2 them oil the grounds they are not rule v a n L . 3 M R . KOHN: There is no t a burdens o Hi e 4 objection to that. or- are you w i t h d r a winy it? Ku MR . MALIN: Also work pi'odue L 6 objection. 7 MR . KOHN : The question is -- 8 MR . MALIN: I object. 9 MR . KOHN : -- how lony it's yoiny to 1 0 for- somebody to make copies of that. 1 1 MR . MALIN: Hell -- 1 2 A. I could only y u e s s . 1 3 MR . MALIN: You can answer that . 1 4 MR . KOHN : He's indicated. lie can 1 5 yuess . 1 6 MR . KOHN : Just for the record, we'd 1 7 like to mark this as Bistline Exhibit Number 1, the 18 document we previously referred to from the Brewer 1 9 litigation, which had been Pepuycorge Exhibit 6 in 20 that case. 2 1 (Marked as Exhibit Number- 1 tor- 22 identification . ) 23 BY MR. KOHN: 2 4 Q . In addition to the maintenance of the WATER PCB-SD0000027047 Bis L 1 i n e 71 1 docket sheets and the disks since ' 87, do you know 2 whether or not any of thos e docket sheets are 3 main t ai ned on the har'd d x'i v e of the computer? 4 MR . MALIN: Objection. That Iras L o 5 do with the select ion process, work product and the 6 witness is directed not to answer the question. 7 MR. KOHN: These die documents which 8 have already been identified. I'm just asking where 9 they die stored on the computer. 1 0 MR. MALIN: My objection stands. The 1 1 objection stands, that's all. 1 2 BY MR. KOHN: 1 3 Q. Do you know whether any of the 1 4 inventories generated prior to 1987, are retained or 1 5 maintained on the hard drive of any computers at 1 6 Monsanto? 1 7 MR. MALIN: Same objection. 1 8 Work product, attorney-client 1 9 privilege. I direct the witness not to answer' the 20 question. 2 1 BY MR. KOHN: 2 2 Q. Can you fix any more precisely Die date 2 3 that the inputting of the information with respect 2 4 to the documents in this computer system began? WATER PCB-SD0000027048 B i s 11 i n e 72 1 MR . MALIN: Well, you've already 2 asked that ques> 11 on. That question has b een as k e <1 3 and an swered. He 's given you his best 4 recollection. 5 I ' m going L o purii L Lite w i l n e s s to 6 attempt to try. However, I think that ' a as Ear U b` 7 we're going to go with this. 8 BY MR. K0 H N : 9 Q Do you ever' the a b i 1 i L y t o fix more 1 0 precise iy t h e date, Mr'. Bis LIine? 1 1 A . My recollection is 111a L i L was some t i m c 1 2 in 1983 And, I believe, i t was in the beyinni ny o C 1 3 March, i n a n d around March 1st, 111 a L tli e proces L> 1 4 began . 1 5 MR. GOUTMAN: May I have the las L. 1 6 ques tio n read back. 1 7 (Whereupon, the prev i o u s portion o 1 8 the notes of t estimony was read by the court 1 9 reporter.) 20 MR. MALIN: Is that answer' right 2 1 THE WITNESS: No. I guess I wou Id 22 have to ask you, then, for a clarification, Mr. 23 Kohn, which computer system you're talking a b o u L . 2 4 Q. I was talking about the computer' sy ste m WATER PCB-SD0000027049 Bis L1ine 73 1 we were t a 1 k i n y about earlier today that Miss 2 Niblock consulted in connection with the direction 3 you gave her in this litigation. 4 A. I assume you mean the compute!' system 5 which I described, generally, as containing 6 Monsanto's business documents, business-!'elated 7 documents. 8 Q Right. 9 A . And the answer t hat I gave you was 1 0 accurate as to those docume n l s . 1 1 Q March 1, 1983, approximuLely? 1 2 A . Approximately, y e s . 1 3 Q Other than thos e disks in connection 1 4 with t h e word processing we were talking about, is 1 5 there any other computer sys Lem that records or 1 6 reflects or maintains any documents relating to FCBs 1 7 at Monsanto? 1 8 MR. MALIN: Hold on. 1 9 (Whereupon, a discussion was held off 20 the record.) 2 1 MR. MALIN: I'm going to object to 2 2 the question on the grounds that it is vague, and 23 irrelevant to any issue that's before Die Court 2 4 here . WATER PCB-SD0000027050 Bis Lline 74 1 Nut having to do with the documents 2 that were requested to be produced. 3 i a i root the witness not to answer 4 the question. 5 BY MR. KOHN: 6 Q I s i t y our understanding that all of the 7 documents which axe within the scope, of the document 8 requests in the A 1 s ton case, are recorded in some 9 manner, in the e o m p u ter that Miss Niblock. consulted? 10 MR . MALIN: I'm going to object on 1 1 the grounds that t. h is deposition is limited to those 1 2 documents which are the subject of your motion to 1 3 eompel. 1 4 MR . KOHN: Do you want him to come 1 5 back? 1 6 MR . MALIN: I direct him not not to 1 7 answer. 1 8 MR . KOHN: Do you want him to come 1 9 back when we raise the other objection that you have 2 0 filed, or would you rattier cover' it all now? 2 1 MR . MALIN: If you do. You may not. 22 APP<* rently, Mr'. Kuhn, you've 23 exhausted all of t h e questions on your questioning 24 on this i sue, and unless you intend to go ahead WATER PCB-SD0000027051 Bis tline 75 1 with questions on the burdens omenes s issue, which is 2 before the court, and which is now being briefed, I 3 think we should conclude this deposition. 4 Unless, of course, Mr. Mils tein lias 5 any more questions. 6 MR. KOHN: He'll proce e d the w a y e 7 deem fit, and I assume you'll take w 1 i a Lever a c L i n 8 you d e e m fit.. One of t hi e m a tiers dis c u s s e d w i Lit 9 J u d g e. Avellino the last L i m e we were b e f o r e h i m lien 1 0 he d e n i e d y o u r motion f o r a pro tec tiv e urdc r / w a 1 1 whelhe I- or not this type of deposiLio n could 1 2 f a c i 1 i Late the n arrowing of the r e m a i ning objecti o n s 1 3 to the discovery which were then not the subject of 1 4 the motion. 1 5 So, I'm trying to ascertain whether 1 6 all of the documents we requested have been recorded 1 7 in that computer' system or whether there is some 1 8 other computer systc m or- some o t h e r method of 19 identifying and locating those documents. 2 0 MR. MALIN: Now, arc you limiting 2 1 your questions to whether or not there are other 2 2 methods of identification and locating the documents 23 that are the subject of the current motion? If that 24 is your question, I will permit the witness to WATER PCB-SD0000027052 B i s 11 i n e 76 1 answer it. 2 MR . KOHN : My q ue s t i o n i Li as I s Lr Led 3 it. Would like an answer to it? 4 MR . MALIN : Then there i i; L1 i c same 5 objection. I'm di i' e c tiny the w i tness n o t to answer 6 the question. 7 BY MR. KOHN: 8 Q. Do you know when Die process Dial began 9 approximately March 1 1983, was initially completed? 1 0 MR. MALIN: I'll object to that as a 1 1 question asked and answered., because, the witness has 1 2 stated there are periodic updates of everything 1 3 that's done. You've already asked that question and 1 4 it's been answered. 1 5 MR. KOHN: When the first update - 1 6 MR. MALIN: Excuse me. 1 7 (Whereupon, a discussion was held off 1 8 the re c o r d. ) 1 9 MR. MALIN: I am directing the 2 0 witness not to answer Die question. 2 1 BY MR. KOHN: 22 Q. When was the most recent update? 23 MR. MALIN: I'm going to object. 24 These questions are irrelevant to the issue before |/D TTCC V 7\ T 7 r TM WATER PCB-SD0000027053 Bis Lline 77 1 the court. And I think, you're now harassing the 2 witness, and I'm going to direct him not to answer 3 the question. 4 BY MR. K 0 H N : 5 Q You a y r e e that Lh e r 6 w i tli r e spec t to M o n sail Lo ' s a c L i 7 i n t h e P a o 1 i R a ill' o a d Y a r d , a s 8 A . I c a n ' f a n s w e r Lh a L 9 wasn't in v o 1 ved with PCB cases in 1983. 1 0 Q Do you know. and I realize as you 1 1 e d earlier. that this is not your area of 1 2 se, and it's not mi lie either, what the 1 3 e system is tha t this computer- that Miss 1 4 Niblock consulted, utilizes? 1 5 (Whereupon, a discussion was lie Id off 1 6 the record.) 1 7 MR. MALIN: The selection of the 1 8 software system is work product and clear 1y 19 privileged, because that discloses categories of 2 0 documents et cetera and the selection process. For 2 1 those documents, therefore, it's privileged 22 information and work product, and I direct the 23 witness not to answer the question. 2 4 MR. KOHN: Isn't it waived, if there WATER PCB-SD0000027054 Bis Lline 70 1 ever was a privilege, when you tell l lie outsider's at 2 the computer company what software you want? 3 MR. MALIN: Well, you can a r y u e that, 4 i y o u wish,. It's your' pr i v i 1 e y e . 5 BY MR . KOHN : 6 Q Do you know w h a t the hardware is on L his 7 computer' that. Miss N i b 1 o c k consulted? 8 MR. MALIN: Go ahead answer- that. 9 A . Do I k n o w ? 1 0 Q What the machine is. 1 1 A . Yes . 1 2 Q Wli a L kind of a machine is it? 1 3 A . It's an IBM computer. 1 4 Q Do y o u know what the memory capacity 1 5 tl\at computer' is? 1 6 A . No . 1 7 Q. Does Monsanto have computers or 1 8 machinery with the capability to scan documents? 1 9 MR. MALIN: I object to that, on the 2 0 grounds that it's neither relevant and it's too 2 1 vague, and too broad. 22 I see no connection with the current 2 3 matter before the Court. 24 Unless you can clarify that question WATER PCB-SD0000027055 B i s 11 i n e 79 1 and make it relevant, I'm going to direct the 2 witness not. to answer it. 3 Q. Do you have "tli e ability with machinery 4 to scan into a computer, the entire content of a 5 document. 6 (Whereupon, a discussion was held off 7 the record.) 8 MR. MALIN: The witness may answer' 9 that question. 1 0 A. The answer is, I don't know. 1 1 MR. MALIN: Let the record show that 1 2 presently Alan Milstein, who is not a party to this 1 3 litigation, doesn't represent any party, is passing 1 4 notes for questions to Mr'. Kohn. 1 5 BY MR. KOHN: 1 6 Q. That question is, what kind of IBM 1 7 machine is the machine that we have been talking 1 8 about, if you know? 1 9 MR. MALIN: Call this the Milstein 2 0 question. 2 1 You may answer- the Milstein question. 22 MS. KRAMER: Frankly, it was my 23 question also. 2 4 MR. MALIN: Let's call it the t/ti n n nr* rr * rn WATER PCB-SD0000027056 Bis lline 80 1 Mils tein-Thomas q u e s Lion . 2 MS . KRAMER: My name is not Thomas. 3 MR . M A L I N : What is your name? 4 MS . KRAMER: The court reporter has 5 iL. 6 BY MR. KOHN: 7 Q . D o y o u know wh at kind of machine if is? 8 MS . KRAMER: I'll be ylad to 9 introduce myself to you. 1 0 A. How about somebody Lolling me LhaL 1 1 question again. 1 2 Q. All right. What kind of IBM machine is 1 3 it? 1 4 A. IL is an IBM main frame eompuLcr. 1 5 Beyond that I don't know what model or any of Lire 1 6 other technical specifications. 1 7 MR . M A LIN : And that it wo i'k s . 1 8 Q It does w o r k ? 1 9 A . It does work . 2 0 Q Gcttiny back to the record s that Miss 2 1 N i b 1 o c k consulted with respect to the list of cases 2 2 that are in storage . I s that list of cases in your' 23 office? 24 A . I'm not sure. Do you mean , are those WATER PCB-SD0000027057 Bis Lline 81 1 documents that cons t i t u L e the list, is that what you 2 mean 3 Q 4 oEEi ce? Yes. I s the 1 ist available in your 5 A . It's no t in my pcraoiidl o' C ice, no. 6 Q Is it i n the 1 eg a 1 depar line n t somewhere? 7 A . S o in e w h e r- e , yes 8 Q As I an dors tan d it, that is a list o 9 c use s which have be e n c 1 o s e d, and axe i n storage; is 1 0 that correc t? 1 1 A . Well, i f is a list, six-, oC ilea that 1 2 have been s ent from the la w department to dead 1 3 s t o r aye, w h ich coni ain, among o Lhcx1 L h i nys, closed 1 4 PCB cases. 1 5 Q Okay. And it may also, or does it also 1 6 c ont ain portions of files in cases whic li arc still 1 7 ongo i ng ? 1 8 A . No . No 1 9 <2 Wild L til ings, o Lher than the closed PCB 2 0 case s , ax e containe d on til is inventory list L h a L 2 1 Miss Nibloc k consul Led? 22 MR . MALIN: Don't answer that yet. 23 (Whereupon, a discussion was held o 2 4 the record.) WATER PCB-SD0000027058 Eia lline 82 1 MR. K 0 H N : Please note, a y a i n , that 2 the witness and counsel are c oa L e i i' i uy while the 3 question is pend i ny 4 MR. MALIN : The w i t n e s s may anawer 5 the question. 6 A These invent o i-y shoe L s r Mr , Kohn 7 c o n t a i n 1 i s t s, not o n 1 y of PCB cas , u L of cases 8 r e 1 a t i ny to o tlier s u b j e c t matters wll ich have been 9 c 1os ed . 1 0 And also files fr o m uLli e r 1 1 n o n - 1 i tiyation sections of t. lie 1 aw deparLm c n L , which 1 2 don'' t relate to litiyaLed matter s at all, but which 1 3 are n o 1 o n y e r active, and which 'nave been 1 4 transmitted to dead sLoraye. 1 5 Q. Are there any other d o c u m e n L a or 16 materials that are reflected o n that inven L o i' y that 1 7 relate, in any way, to P C B s o the r than the s e o Id PCE 1 8 cases? 1 9 A. To my knowlodye, no. 2 0 Q. Was there any other information that 2 1 Miss Niblock consulted when she responded to your 2 2 request, to determine, the number' of documents 23 responsive to the Alston document request? 24 MR. MALIN: Mi'. Kuhn, you've asked "" WATER PCB-SD0000027059 Bis Lline 83 1 this q u e s tion about five di fferent ways, a nd I th ink 2 that this is becoming an e x ercise in fuLil i Ly I L ' s 3 been a s k e d and answered. I 'll p c r mit L1 i e wit n e ss L o 4 answer- it one m ore time, b u L that's going l o be i L . 5 A . I believe th a t I have given yo u , cl b c s l 6 I can .recall al the present time, a Cull list of Lite 7 sources of information that were consulted. 8 Q D o you recall. appr o x i m a L e 1 y , h o w ni a n y 9 documenL s were produced by Mona a n L o in the c a s e of 1 0 Scott v. Monsa nto? 1 1 MR . MALIN: Hold o n . 1 2 (Whereupon, a d i scus sion was h e Id o 1 3 the recur d. ) 1 4 A . C o u1d I have t h at q u e s t ion back ay din, 1 5 so that I have it in mind. 1 6 (Whereupon, th e prev io us per L i o n o f 1 7 the notes of t estimony was read by the cour L 1 8 reporter. ) 1 9 A . By that, Mr'. K o h n , you don't mean t li e 20 medical records of the plaintiffs t. h at tine court 2 1 forced us to collect and then provide free of cha rye 2 2 to the plaintiffs. You're talking about documents 23 from Monsanto's files? 24 Q . You can start with those, yes. WATER PCB-SD0000027060 Bistline 84 1 A . My best recollect ion is that there were 2 between 60 and 70,000 pages o f documents that were 3 produced in that cose. 4 Q. And were those documents that pertained 5 to PCBs in one way or' another'? 6 MR. MALIN: I'll object to that 7 question as vayue and not related to any issue in 8 this case. I direct the witness not to answer' it. 9 It's simply an unanswerable question 1 0 BY MR. KOHN: 1 1 Q. Here the 60 to 70,000 documents produced 1 2 i n the -- 1 3 A . Pages o documents. 1 4 Q. Pages of documents produced in Scott, 1 5 did any of those documents pertain to the chemical 1 6 composition of the PCBs manufactured by Monsanto? 1 7 (Whereupon, a discussion was held off 1 8 the record.) 1 9 MR. KOHN: Mr. Reporter', is it 2 0 possible just to have a standing request that you 2 1 note every time there is a conference. 2 2 MR. MALIN: That's objected to on the 23 grounds that the actual documents and the substance 24 of them are the subject to a protective order1 issued WATER PCB-SD0000027061 Bis tline 85 1 in the Scott case by a U.S. District. Court judge, o and accordingly, the witness is barred from 3 tes L ify ing . 4 MR. KOHN: With respect to these 5 questions, about tires e particular' documents, I'm 6 agreeing, and I assume all my co-counsel are 7 agreeing, to be bound by the terms of that or'del'. 8 So we request that you answer' that 9 simple question, whether any of those documents 1 0 pertain to the chemical makeup of PCBs. ` 1 1 MR. MALIN: I direct the wiLness not 1 2 to answer' the que s t i o n . He will not be bound by 1 3 that order', unles s you are party to that order- and 1 4 it's signed by L h fcj same judge and the same court. 1 5 which is not the c a s e . I diree t the wiLness not to 1 6 answer. 1 7 MR. KOHN: We request that you 1 8 provide us with a copy of that order. I assume the 19 order itself is not confidential. 2 0 MR. MALIN: Well, you can file your 2 1 document request in Lire normal course. 22 MR . KOHN : We have. 23 MR . MALIN: Or-, you can get it from 2 4 the Court yourself It's. a public document. You WATER PCB-SD0000027062 Bistline 86 1 know the case. You know the caption, you know Die 2 number, you know where it is. You can obtain it. 3 BY MR. KOHN: 4 Q. How many other documents were produced 5 to the plaintiffs in the Scott case, other' than the 6 60 to 70,000 pages that you previously identified? 7 MR. MALIN: You're talking about 8 Monsanto documents that were provided by court 9 order? 1 0 MR. KOHN: Right, and any oilier'. 1 1 A. I believe, as I mentioned before, Mr. 1 2 Kohn, Miss Hurley records that we collected -- the 1 3 Court required us to provide those to the 1 4 plaintiffs, and as I recall, there were 20 to 25,000 1 5 pages of records. i 6 Q. To the best of your- recollection, that 1 7 is the sum total of documents produced by Monsanto 1 8 in that litigation? 1 9 A. The best I can recall, yes. 20 Q. Have those documents been segregated in 2 1 some manner by the Monsanto lawyer's so that you 2 2 could identify or' locate the documents produced by 2 3 Monsanto in the Scott case? 2 4 MR. MALIN: I'm going to object on WATER PCB-SD0000027063 B i s 11 i n e 87 1 the grounds of work produc t. Direct the wi Incus not 2 to answer. 3 BY MR. KOHN: 4 Q. Is the Scott case still ongoing? 5 A . Yes. 6 Q. Is it par L of your normal prac Lice when 7 litigation is ongoing to have a system to identify 8 those documents which you have produced to the other' 9 side in the litigation? 1 0 MR . MALIN : The question lias been 1 1 asked and answered,, D i r e c t the witness nuL t o 1 2 answer it again. 1 3 BY MR. KOHN: 1 4 Q. Have any of the documents which Monsanto 15 produced in the Scott case been produced in any 1 6 other litigation? 1 7 MR. MALIN : I object a nd direct the 1 8 witness not to answer. It's ix-roleva n t . It's 1 9 irrelevan t to any issue h ere. How is i L relevant 20 that Scott may have been prod uced in o t h c r 2 1 litigation? 22 MR. KOHN: Excuse me. 23 (Whereupon, a discussion was held off 24 the record.) WATER PCB-SD0000027064 B i s 11 i n e 80 1 BY MR. KOHN: 2 Q. Now, in Scott, Monsanto did not produce 3 all of the documents that the plaintiffs asked Cor, 4 did you? 5 MR. MALIN: Wait a minute. 6 I don't undersLand that quest ion. 7 First of all. that has to do with whatever r u 1 e s 8 Court may have made with respect to what doc u m e n 9 were relevant and could have been produced. 1 0 So, I don't know what your- question 1 1 is. If you're trying to ask the witness wh ether- or 1 2 not they didn't produce all the documents that 1 3 should have been produced in accordance with the 1 4 relevant court orders, then Lhut question is not 1 5 germane or- not even understandable. So I don't 1 6 really understand where you're going. I don't 1 7 understand the question. So, unless you can clarify 1 8 that question, I'm going to direct the witness not 1 9 answer it. 2 0 BY MR. KOHN: 2 1 Q. The universe of documents that the 2 2 plaintiffs requested in Scott was greater- than the 23 documents which were ultimately produced, greater in 2 4 number than the number of documents that were . r/ n n rt n n tt WATER PCB-SD0000027065 Bis Lline 89 1 ultimately produced by Monsanto in this case, 2 correct? 3 MR. MALIN: The witness may answer' 4 that question. 5 A. My recollection is that that is 6 correct. 7 Q And, ha v e you. a t any time. d e L e rmined 8 t h e total number o f documu n L s i n Monsjii to ' 3 9 postsession which I' e late to PCB ,. 9 1 0 MR. MALIN: I object to that question 1 1 as vague as if relatess to be PCBs. I d 1 r e c L the 1 2 witness not to answer that question unless i t can be 1 3 clarified. 1 4 BY MR. KOHN: 1 5 Q. Do you unde i'stand what I mean by that? 1 6 A. I would prefer that you clarity that 1 7 question. Mi-. Kuhn , 1 8 Q. Well, have you ever' undertaken to 1 9 determine the total number- of documents in the 20 possession, custody or control of Monsanto, with any 2 1 possible relation to polychlorinated biphenyls? 22 MR. MALIN: I take it that means, the 23 entire Monsanto Company, not just the law department 24 which he is an employee? WATER PCB-SD0000027066 Bistline 90 1 MR. KOHN: Yes. 2 MR. MALIN: Answer that question. 3 A. I believe what you arc referring Lo is 4 an affidavit that I submitted in the Cecil Scott 5 case, in response to a request that the plaintiffs 6 made, and we did undertake Lo estimate, within the 7 context of that litigation, the burden that we would 8 be foi'ced to, ox- that we would have b e e /i p u L to, had 9 the Court compelled us to c oiup 1 y , 1 iterally r with 1 0 plaintiff ' s document do m a n d . 1 1 In that connection I believe i did 1 2 make such an estimate. although, I do n ' L ha v e L h a t 1 3 i n m i n d . I don't have the precise numbers i n m i n d 1 4 as I sit here, I see you have the affidavit r though, 1 5 I assume you do know that. 16 Q. Do you remember that you stated to the 1 7 court in that affidavit, that there wei'u 1 8 approximately two million such documents? 1 9 A. Mr . Kohn, if that's what tine affidavit 20 states, that's what it states. As I said, I don't 2 1 recall precisely what I said in that affidavit. 22 Q . When was the last time that you saw that 23 affidavit? 24 A. I don't remember. It's been so me Lime WATER PCB-SD0000027067 B i s 11 i n e 91 1 2 MR . MALIN:: Would you pc I'm it the 3 witness to see you i' copy of the af f i davit while 4 getting m ine? 5 MR. PCOHN: I don't hove any questions 6 about the document itself. 7 BY MR. K0HN : 8 Q. Are all of the two million documents 9 that you referred to in your affidavit in the Scott 1 0 case, recorded in some way on that computer thaL 1 1 Miss Niblock consulted? 1 2 MR. MALIN: Hold on. 1 3 Go a h e a d. 1 4 (Whereupon, a discussion was held off 1 5 the record. ) 1 6 MR . MALIN : Will you pc i'm it th e 1 7 witness to see the a f f i d a v it that you have? 1 8 MR . KOHN : If it will make you happy 1 9 we'll mark i t B i s 11 ine E x h ibit 2. A two-page 20 document wh ich a p p o a r s to be an affidavit of Mr . 2 1 Bistline in the case of Scott versus Monsanto. 22 (Marked as Exhibit 2 for 2 3 identification.) 24 MR. MALIN: Will the court reporter WATER PCB-SD0000027068 Bistline 1 repeat the question, please. 2 (Whereupon, Die above portion of the 3 notes of testimony was read by the court reporter.) 4 MR. M A LIN: I'm objecting to the 5 ques tion. 6 I direct the witness not to answer 7 it. First, it misrepresents what the affidavit 8 says. 9 The affidavit says, and I quote, 1 0 "This two million pages estimate r elates to 1 1 documents found in Monsanto files. It excludes 1 2 documents attained from other entities in 1 3 litigation. Whether' such documents (which amount to 1 4 sever a 1 million payes) are properly the subject of 1 5 production demand is seriously questionable, 1 6 particularly since in many cases those documents arc 1 7 subject of protective orders." So, obviously - 1 8 MR. KOHN: That's right. You have 1 9 even more than two million documents. 2 0 MR. MALIN: A good deal more Lhan two 2 1 million documents. 22 MR . KOHN : I'll say . 23 BY MR. KOHN: 24 Q. Are the two million documents refer'red WATER PCB-SD0000027069 Bistline 93 1 to in your affidavit, recurdcd on the computer? 2 MR . MALIN: I d i reel the wiLn ess not 3 t o answer that question. 4 BY MR. KOHN : 5 Q How lony did i L Lak e you to y a th or the 6 information that i s contai ned i n the a f f i d a v it Lhal 7 h a s been ma rked a s Bis L 1 in e E x h i b i L 2? 3 MR . MALIN : Hold o n . 9 (Wh ereupon. a d i s c u s s ion was held off 1 0 t h e record. ) 1 1 MR . MALIN : Mr . Kohn, would y o u y i v e 1 2 u s some in d ica Lion of why you b elieve this q u c s Lion 1 3 i s relevant t o the mat ter' Lha t ' s cur r cntly b ef ore 1 4 t h e Court? 1 5 MR . KOHN : Yes . This would a p p o a i' to 1 6 b e , at leas t, one person's a s t i mute. a f te r , I 1 7 assume, a reasonable review. Otherwise, lie wouldn't 1 8 have so verified to a federal court, of the number 1 9 of documents that relate to polychlorinated 20 biphenyls in Monsanto's motion. I'd like to know 2 1 how lony it took him to gather this information, 22 where the documents are located, et cetera. 23 MR. MALIN: Paragraph 3 of that 24 affidavit, I would like to read to you, Mr. Kohn. WATER PCB-SD0000027070 Bistline 94 1 "By its terms, the requests would 2 oblige Monsanto to search for every conceivable kind 3 and category of document in its possession, cusLody 4 or control with any possible relation to three 5 broadly defined categories of chemical substances: 6 Polychlorinated biphenyls ("PCBs"), polychlorinated 7 dibenzofurans ("furans") and polchlorinated 8 dibenzodioxins." 9 We ' rc not talking about just PCBs. 1 0 Q . What percentage -- 1 1 MR. MALIN: I direct him not to 1 2 answer the question. 1 3 Q Wha t percentage o f the two million 1 4 relate to PCBs as opposed to those related 1 5 chemicals? 1 6 MR. MALIN: I direct him not to 1 7 answer the question. First of all, I think this is 1 8 irrelevant. It's far afield, and if Lhis is where 1 9 you are going with this, I'm going to direct him not 20 to answer any further questions. I think this 2 1 deposition is terminated. Unless you're going to 22 ask some relevant questions that apply, this 23 deposition will be over'. 24 MR. KOHN: Well, as I say, you know WATER PCB-SD0000027071 Bistline 95 1 where the door is. Any time you think it's 2 appropriate to leave, you'll leave. We'll take 3 whatever action we think is appropriate in 4 response. 5 BY MR. K0HN : 6 Q. The affidavit states on page 2, "Based 7 upon my experience in other' litigation, I estimate 8 that review for production of these documents would 9 require an excess of 1,000 paralegal days and 500 1 0 lawyer days of effort." 1 1 What other litigation were you 1 2 referring to. 1 3 MR. MALIN: I think you can answer 1 4 tha l . 1 5 A. I have been involved in litigation fox- 1 6 15 years, now. And, for most of that time, Mr. 1 7 Kohn, I've been involved with corporate litigation, 1 8 which normally requires the review and production of 1 9 large numbers of documon t s . 2 0 Q . I agree with you on that. 2 1 A . I have been doing this, as I said, for 2 2 15 yea r s, and it is the totality of the case 23 experi ence that I have i n tha L capacity, that I was 24 referr ing to. WATER PCB-SD0000027072 Bistline 96 1 Q . How did you go about deriving the figure 2 1,000 paralegal days? 3 MR. MALIN : I object. I direct him 4 not to answer. T his is a n affidavit. It'a in issue 5 in a no ther case , n o t tlii s one. 6 MR. KOHN: Well, this is the same 7 form of affidavit which has been submitted to the 8 court in this case. And I'd like to understand what 9 11 i e formula or procedure is for coming up with this 1 0 nu m ber, 1,000 paralegal days. 1 1 How do you go about estimating? 1 2 MR. MALIN: You're talking about a 1 3 different case, different document xequesLs. 1 4 Different number' of plaintiffs, different issues, 1 5 that has nothing to do with this case. It's so far 1 6 afield that it is objectionable. I direct the 1 7 witness not to answer' it. 1 8 MR . KOHN : Just so our posi t i o n i s 1 9 clear. in request n umber 11, in the Alston c a sc, w c 20 asked quote all do c umeii Is produced by you i n S c o L L 2 1 v. Monsanto, Civil N u m b e r B 84-1103. 22 Th i s is an affidavit filed i n that 2 3 case, with respect to Lire production of documents in 24 thatcase. WATER PCB-SD0000027073 Bis Lline 97 1 MR. MALIN: You've made your 2 statement. I want to take a five minute recess, and 3 we're going off the record. 4 MR .. KOHN: It's 1 2:25, do 5 ha v e lunch? I'll recess now, if you want 6 MR. MALIN: All right. 7 (Short recess was then taken.) 8 BY MR. K0 H N : --l 'Ji CQ 9 G In ine Exhibit 2, paye 2, there's 1 0 also this s31 a t eaient. "The cost L o Monsanto for1 1 1 prod uc tion o f those documents a 1 o n te would 1 2 approximate $1,000,000." How did you yo about 1 3 ascertaining the $1,000,000 figure? 1 4 MR. MALIN: I object to that. Fur' 1 5 the S cL fll C reason that the last q u e s tion was o b j e c L e d 1 6 t o . This is irrelevant. i t h as no thing to do with 1 7 the issue before the COUI t in tli i s particular . cr o Cl j 1 8 for the s ame reasons. 1 9 Mi. Kohn, if you have any questions. 2 0 which relate to the issue before the Court, 2 1 burd ensoineness of t h e production in the Alston case. 2 2 the matter that's now being briefed. I ask that you 23 ask those questions. I realize I can't tell you how 2 4 to conduct your deposition, but if you have no other WATER PCB-SD0000027074 Bia Lline 98 1 questions, I request that you terminate the 2 deposition. 3 MR . KOHN: 0 h , no, i n <x ddilion to 4 th o s e qu estion s, which we luve a 1 r e a Jy asked , w h ich 5 pe rtai n to t h i s litigation , w e have a 1 a r y e numb e r 6 of o th e i' ones , which we'll t r y t. o g e t to as p I' O 111 piiy 7 a s p o s s i ble . 8 The affidavit continues. 9 MR. MALIN: Do I understand that you 1 0 have questions that pertain to litigation, other 1 1 than the matter that's currently before the court. 1 2 MR. KOHN: I have questions that 1 3 pertain to this case. Other than Lha L, I don't know 1 4 what you are talking about. 1 5 MR. MALIN: Let's proceed. 1 6 BY MR. KOHN: 1 7 Q . . The affidavit states, "It excludes 1 8 documents obtained from other entities in 1 9 litigation. Whether such documents (which amount to 20 several million pages) are properly the subject of a 2 1 production demand is seriously questionable.". 22 What, documents are included within 23 that sever'al million pages? By that I mean, what 24 general groups or categories of documents? WATER PCB-SD0000027075 B i s 11 i n < 99 1 MR. MALIN: Objection. I dix'cct the 2 witness not to answer, for the same reason as I had 3 previously given. Including work product, as well. 4 BY MR. KOHN: 5 Q. As part of your supervisory 6 responsibility in PCB litigations, particularly the 7 Alston case, is it your practice to review documents 8 to be filed wit h the court prior to their' being 9 filed? 10 MR MALIN I think you can answer 1 1 that . 1 2 A. Yes. 1 3 Q. Is it your' practice to review response 1 4 to discovery requests prior' to the Lime those 1 5 responses are served on counsel? 1 6 A. Yes . 1 7 Q. And do you review those documents for 1 8 their accuracy, and truthfulness and thoroughness ? 1 9 A. Yes . 2 0 Q. And, do you endeavor', as part ol your' 2 1 job responsibility, to make sure that the contents 22 of any documents, either served in discovery, in 23 response to discovery or filed with the court are 24 truthful and accurate? WATER PCB-SD0000027076 Bistline 100 1 A . That's correct. 2 MR. KOHN: I ask the reporter to mark 3 as t h e next numbered exhibit the response o f 4 Monsan to to plaintiff 's request for produe Lion of 5 documeats . 6 (Marked as Exhibit Number' 3 for 7 identification.) 8 MR. KOHN: In the case of Alston 9 versus Septa, et a 1 . , and other litigation, as 1 0 B i s 11 i ne Exhibit 3 . 1 1 I have placed before you what the 1 2 report e r has m ar ked as Bistline Exhibit 3 . 1 3 Have you ever- seen that document 1 4 b e f o i' e today ? 1 5 A . Le t me just review this . 1 6 Q . All i" i y h t . 1 7 A . Yes , I've seen this d o c u m e a t . 1 8 Q . Did you participate in tiro preparation 1 9 of t h i s exhibit? 2 0 A . Yes . 2 1 Q . Did you review this document for its 22 truthf ulness and accuracy befor e it was served in 23 this 1 awsuit? 2 4 A . Yes . WATER PCB-SD0000027077 Bia 11ine 101 1 MR. KOHN: OCf the record tor a 2 minute 3 (Whereupon, a discussion was held olC 4 the record.) 5 (Luncheon recess was taken.) 6 BY MR. KOHN: 7 Q. Do we have Exhibit 3 available? 8 If you could Luiii to the first page 9 after all the captions. The headiny, Responses of 1 0 Defendant Monsanto Company, e t cetera. 1 1 Referring to paragraph number' one of 1 2 that document, it states, "Many of tire documents 1 3 requested by plaintiffs in this first request for 1 4 production of documents were previously supplied by 1 5 Monsanto Company in response to plaintiff's first 1 6 and second request for production of documents in I 7 Williams v. Monsanto Company, et al., or in response 1 8 to other discovery directed to Monsanto Company in 1 9 related litigation under the caption In Re: Paoli 2 0 Railroad Yard PCB Litigation, Eastern District of 2 1 Pennsylvania." 2 2 To which request in this document 2 3 request were documents previously provided? 24 MR . MALIN : Hold on. WATER PCB-SD0000027078 Bis Lline 102 1 Mi' . Kohn , can you be m ore sped Hie 2 with your question? Firs L of all, I'd like Lo point 3 out that you actually have the documents that were 4 provided. And, it's not necessary for this witness K t o y o d o w n a d ser i a t i m through all of t h ese requests 6 t o d e t. e i" m i n e w h i c l-i w e r e provided and/or c o m pare the m 7 w i th the 1 is l of th at which was provided at this 8 point. 9 I think that's an improper' question. 1 0 MR. KOHN: Does that - 1 1 MR. MALIN; If the witness lias any 1 2 recollection, I'll permit him to attempt L o answer' 1 3 it, alt h ougli , I have also my own objection which I 1 4 would suggest, I don't, see tire relevance of any of 1 5 tliis to the is sue that's currently before the court 1 6 o n the burden s omeness with respect to the four 1 7 requests, whic h t h e r e is a motion to compel before 1 3 the Court. 1 9 Mr. Bistline, if you have any idea at 2 0 this point what was produced and how it can relate, 2 1 you may answer- the question. 2 2 A. Well, I'm not sure I understand what the 23 question is. 2 4 Are you asking which of your- request WATER PCB-SD0000027079 Bistline 103 1. documents produced in these two federal cases arc 2 responsive to? Is that the request. 3 Q. Yes . 4 A . I believe, sir, that's reflee Led in the 5 text of each of Monsanto's response to each of your 6 responses . I defer- to this document for recita Lion 7 of that. 8 Q You have nothing to add. other- than wha t 9 is set forth in the specific respons e. s to L h e i 0 specific requests? 1 1 A . Correct. 1 2 Q And do y o u know how many ducumcn l s w e r e 1 3 produced in the Will i a m s c a s e and In Re: P a o1i 1 4 Railroad Yard PCB li tigation in the federal court by 1 5 Monsanto? 16 A . My best recollec tion, Mr . Kohn, is a 1 7 total in both cases combined, of some 44, 4500 pages 1 8 of documents. 1 9 MR. MALIN: Mr. Kohn, I think you're 20 well aware, there were approximately 44017 documents 2 1 produced. Now, an indication of the documents that 22 were produced is attached to our motion in support 23 of our objections to these Interrogatories. It is 2 4 exhibit, it appears to be Exhibit E. WATER PCB-SD0000027080 Bistline 104 1 BY MR. K0HN : 2 Q. Mr. BisLline, could you place before 3 yourself the exhibit that Mr. Maliu is referring to 4 Exhibit E to the brief which lias been filed by 5 Monsanto in this case. Did you participate, in any 6 way, in the preparation of that exhibit? 7 A . No. 8 Q. Do you know whether any employees of 9 Monsanto participated, in any way, in the 1 0 preparation of that exhibit? 1 1 A . I don't, know t h e answer' t o Lh a t . 1 2 Q Do you know wheth e r , in a c a t h e 1 3 documents set forth on that e x h i b i L axe a 11 of 1 4 documents in Monsanto's possession which are 1 5 responsive to the request for production in the 1 6 Alston case? 1 7 MR. MALIN: Don't answer yet. 1 8 I'm going to object to the question. 1 9 I direct the witness not to answer. The response 2 0 speaks for itself. 2 1 BY MR. KOHN: 22 Q Paragraph Number- 2 of th t2 heading. 23 general objections on Exhibit 3, s tates, "Monsanto 24 objects to each and e very request on the grounds WATER PCB-SD0000027081 B i s 11 i n e 105 1 that they are overly broad, irrelevant, they seek 2 information not reasonably calculated to lead to the 3 discovery of admissible evidence, and they impose an 4 undue burden and expense relative to the value of 5 the information requested," 6 It is your position that each and 7 every request in this document request imposes an 8 undue burden and expense relative to the value of 9 the information requested upon Monsanto. 1 0 MR. MALIN: Objection. I direct the 1 1 witness not to answer that question. 1 2 MR. KOHN: On what grounds? 1 3 MR. MALIN: This was compiled by 1 4 counsel, it's a legal conclusion. It's that which 1 5 is being litigated by the Court, now, at least with 1 6 respect to four of them, and I direct the witness 1 7 not to answer the question. If this is going to be 18 the tender of the remainder' of your questions, if 1 9 this is where we are going, I believe this 20 deposition is terminated. 2 1 MR. KOHN: Well, I'm trying to 22 ascertain whether this witness has any information 23 with respect to your contention that it would impose 24 a quote, "undue burden," close quote, on Monsanto, WATER PCB-SD0000027082 Bis Lline 1 06 1 t o reply to each request. 2 MR . MALIN: You have his affidavi t. 3 He has given you the information in a n affidavi l 4 MR . KOHN: He hasn't g i v c n mo ci u L o 5 each, a n d I have made a request. It's up to y o u 6 If you want him to y o home to St . Louis f o r Lh e 7 weekend and come back next week. that i s your 8 bosines s . We w i 11 be h e r e ., You 're not going L o 9 wear us out o r L i i"e us out., We will be happy Lo 1 0 reconvene this little session next week. But now 1 1 we'd like to y o through this and, please, if you 1 2 have an objection to make, make an objection. If 1 3 you have an instruction. make it . But k e e p the 1 4 speeches to a minimum. 1 5 Now, is i t y o u i' - - 1 6 MR. MALIN : I'll conduct my portion 1 7 of this depo sition as I see fit. obvious iy, Mr . 1 8 Kohn . 1 9 Yes, it's our position that you have 2 0 the affidavit. You are not inquiring with respect 2 1 to the issues that are relevant in the motion. 2 2 And I'll permit, perhaps, a few more 23 of these questions, before this deposition is 2 4 terminated, and if they are of tire same kind that WATER PCB-SD0000027083 Bistline 10 7 1 you are asking now, this deposition is over. 2 BY MR. KOHN: 3 Q. Mr. Bistline, is it your belie that 4 response, to each o the document requests, . 5 separately viewed, each viewed separately, imposes 6 an undue burden upon Monsanto? 7 MR. MALIN: I object and direct the 8 witness not. to answer' that question. 9 BY MR. KOHN: 1 0 Q. Paragraph number 8 o this document on 1 1 page 3 states, in part, "In providing the following 1 2 responses to plaintiff's first request, Monsanto lias 1 3 undertaken a reasonable effort to locate records and 1 4 to provide the information requested." 1 5 What efforts has Monsanto undertaken 1 6 to locate records and provide the information 1 7 reques ted. 1 8 MR. MALIN: You may answer' that 1 9 question. 20 A. The efforts that were under-taken to 2 1 provide the information that wo have provided, are, 22 in general, as I described earlier. We evaluated 23 the document demand. We made a determination wiL h 2 4 counsel as to that, which we felt iL was appropriate WATER PCB-SD0000027084 Biy 11ine 108 1 for us to respond to. 2 Those documents were gathered and 3 provided to you. 4 Q. That's the three documents that were 5 provided to us in connection with the Alston case. 6 Are those the documents you're referring to? 7 A. I believe, Mr. Kohn, that you'll find 8 that we also incorporate in this response the 9 documents we have produced in the federal 1 0 litigation. I consider this also part of this 1 1 response. 1 2 Q. How much time was spent with respect to 1 3 just the documents that were produced, the 1 4 additional documents produced in connection with 1 5 this case, not the ones that were produced 1 6 previously? 1 7 MR. M A L IN : I object. That question 18 has been asked and answered over and over and over' 1 9 again. 2 0 I'm going to direct the witness not 2 1 to answer it again. 22 BY MR. KOHN: 23 Q The next sentence of this same paragraph 24 states, "However, various records of Monsanto have. WATER PCB-SD0000027085 B i s 11 i n e 1 09 1 from time Lo time, been discarded in the ordinary 2 course of business." 3 Wore you aware of any documents which 4 pertain to P C B s which have been discarded, from Lime 5 to time, 6 MR. MALIN: You may answer that 7 question. 8 A . Monsanto has a record retention policy, 9 and pursuant to that policy, certain types of 1 0 documents are kept for varying lengths of time, and 1 1 the answer is yes, some documents relating L o P C B s 1 2 h a v e , over- the regular' rcourse of business. lias been 1 3 discarded. 1 4 Q. Do you know how many such documents have 1 5 been discarded? 1 6 A . No . 1 7 Q. The record retention policy, I take i L, 1 8 is set forth in writing? 1 9 A. Yes, it is, sir'. 2 0 MR. K 0 H N: Request that copies of 2 1 that policy be provided to us. 22 MR. MALIN: We will honor a request 23 made through the normal form of request for 24 production of documents. If it is appropriate to WATER PCB-SD0000027086 B i s 11 i n e 110 1 honor any such request. 2 BY MR. KOHN: 3 Q . To y o u r knowledge, has there ever' been 4 any directive or instruction issued to the employees 5 of Monsanto Company, to cease discarding, in the 6 ordinary course of business, documents which pertain 7 to P C B s ? 8 MR. M A L I N : You may answer that 9 question. 1 0 A . Yes. 1 1 Q. When was sucli instruction given? 1 2 A. There have been, to my knowledge, 1 3 several such instructions. 1 4 Q . And do you know when they wer e given? 1 5 A. During the period, essentially, 1970 to 16 'll. 1 7 Q Have there been any since 1977 1 8 A . Ther e may have been . I don't k n o w . 1 9 Q Ha ve any doc u m e nt s pertaining to PCBs 2 0 been discarded in the ordinary course of business, 2 1 after 1977? 22 MR. MALIN: You may answer that 23 question. 2 4 A. To the best of my knowledge, no. WATER PCB-SD0000027087 Bistline 111 1 Q . Continuing on Page 4 of this exhibit. 2 Request number one. "All d o c u m e n t s 3 which refer or relate 1 a L h e e ffccts of PCBs on 4 humans or animals," 5 And the objection, or the res po fisc, 6 rather, to request number one. states, "Defendant 7 objects to request number one on the grounds that 8 the term 'effects' is unduly vague and undefined and 9 that the request is unduly bur'den so me and 1 0 overbroad," e t cetera. 1 1 Do you know what the word "effects" 1 2 means? 1 3 MR. M A LIN: I'm going to object. 1 4 These words are used by counsel. If you are asking 1 5 him how he determines the use of the word effects 1 6 means to him. I'll permit him to answer that 1 7 question. 1 8 But, with respect to what it means in 1 9 this particular document, I think it would -- as I 20 said, it's unduly vague and undefined, and those arc 21 the words of counsel. 22 BY MR. KOHN: 23 Q . Do you know what "effects" means? 24 A . I have a personal or my own WATER PCB-SD0000027088 Bis Lline 112 1 understanding of whaL the word "effects" means to 2 in c . 3 Q. What is that personal understanding? 4 A . I would understand the word "effects" as 5 you were using it, to mean an observable impact upon 6 here, humans or animals. To me, it's very, very 7 broad, and and nebulous word that could mean a great 8 m any things. 9 Q. Did you look it up in the dictionary 1 0 before you signed off on this response? 1 1 MR. MALIN: Objection. Don't answer 1 2 that question. 1 3 Q . Continuing with this response to request 1 4 number" one, the fourth line from the bottom states, 1 5 "Furthermore, the information requested is in the 1 6 public domain and equally available to plaintiffs." 1 7 Is there any information in the 1 3 possession of Monsanto, that. is. within the scope of 1 9 request number- one, that is not in the public 2 0 domain? 2 1 MR. MALIN: I object to your 22 question. Information available to Monsanto is what 2 3 you were saying on health effects which, of course, 24 he has said is vague, and undefined, in this WATER PCB-SD0000027089 Bistline 113 1 particular document. Now, you're gettiny into Die 2 substance of this Litigation, not really with 3 respect to the burdensoniencss issue. 4 And, accordingly, I think that the 5 question is objectionable. The answer speaks [or 6 itself. 7 And, I direct Die witness not to 8 answer it. 9 MR. KOHN: We are endeavoriny to try 1 0 to narrow some of the issues in dispute hero. If it 1 1 is, in fact, true that all of the information within 1 2 the scope of request number one is in 111 e public 1 3 domain, then that is one thing. If, some 1 4 information responsive to request number one is not 1 5 in the public domain, but it is in the possession of 1 6 Monsanto, then that's another issue entirely. I'm 1 7 tryiny to get their understanding whether or not 1 8 Monsanto is in p o s s ess ion of any of t h o s c respons i v e 1 9 t o request one that 1 o not i n the public domain. 2 0 MR . MAL IN : The i' e s po n s e i 3 that it's 2 1 i n the public domai n , that ' s the i" e s p o n s e of 22 counsel. I dir' e c t him not t o answer the question 23 MR ., KOHN: S o , you a i- e t c 11 i n y m e 2 4 an officer of the court. that all s u c h informa Li WATER PCB-SD0000027090 Bistline 114 1 is in the public domain? 2 MR. MALIN: I beg your pardon? 3 MR. KOHN: Read it back to him. 4 (Whereupon, the previous portion of 5 the notes of testimony was read by tire court 6 reporter.) 7 MR. MALIN: Yes. All such 8 information is in the public domain. 9 MR . KOHN : I'm sorry. All such 1 0 infor mat ion? 1 1 MR . MALIN: All such i rif ormation is 1 2 in the public doma i n . 13 MR . KOHN : Thank you. 1 4 MR . MALIN: We have no undersLanding 1 5 otherwise. 1 6 BY MR. KOHN: 1 7 Q. Continuing on page 6 of this exhibit, 1 8 request number 3 seeks, "All documents which refer 1 9 or relate to the 'background' levels of PCBs in the 2 0 United States." 2 1 The response states, in part, 22 "Moreover, the term 'background levels' standing 23 alone is vague and undefined." 24 Do you have any understanding of what vn S nnr rr * m r- -R/-Tr?-iTi***r -r ^ WATER PCB-SD0000027091 Bistline 1 15 1 the term "background levels" with respect to PCBs 2 means? 3 MR. M A L I N : I'm going to object to 4 this question. 5 These responses stand on their own 6 merit or fall on their own merit. 7 Mr . Bistline is hertj for- a very 8 1imite d p u r p o s e., with r e. s p e c t to question of 9 burden someness , and if this is the t e n o r , this 1 0 deposition is concluded. 1 1 You are not dealing with any of the 1 2 issues that this deposition was noticed for and was 1 3 permitted for. 1 4 And if you have any more questions, I 1 5 would request that you tender those questions now, 1 6 because otherwise this deposition is concluded. 1 7 BY MR. KOHN: 1 8 Q . Continuing on page 6, request number 4. 1 9 Do you have that before you? The r esponso to 20 request 4 states. "Monsanto o b j e c t s to our request 2 1 number 4, on the grounds that it's unduly 22 burdensome. " 23 And it continues, close quote. 24 How many documents are responsive to WATER PCB-SD0000027092 Bistline 116 1 request number 4. 2 MR. MALIN; Objection. Don't answer 3 the question. This deposition is concluded. 4 Q. Why is responding to request number 4 5 unduly burdensome? 6 MR, MALIN: Wait a minute. Hold on. 7 Let me see. 8 Q. As alleycd in the response which you 9 signed off on. 1 0 MR. MALIN: The request speaks for 1 1 itself . 1 2 I stand, then, on my statement, and 1 3 this deposition is concluded. Mr-. Bistline. 1 4 MR. KOHN: Mr. Bistline, it was nice 1 5 to meet you, and hope I do not have to inconvenience 1 6 you unduly to call you back to conclude this 1 7 deposition. Thank you for your time. 18 1 9 (Deposition ended at 2:05 p.m.) 20 21 22 23 24 IfBincc V & rp r? c. tm/-< WATER PCB-SD0000027093 117 1 CERTIFICATE 2 I hereby certify that the proceedings and 3 evidence noted are contained fully and accurately in 4 the notes taken by me on the deposition of the above 5 matter, and that this is a correct transcript of the 6 same . 7 8 9 10 11 12 13 14 15 1 6 (The foregoing certification of this 1 7 transcript does not apply to any reproduction of the 1 8 same by any means, unless under the direct control 1 9 and/or super'vision of the certifying reporter.) 20 21 22 23 24 J/R a fTC Q V A T* 7 C Ar'V'UDMAM TVTr WATER PCB-SD0000027094 118 1 ACKNOWLEDGEMENT OF DEPONENT 2 I, :, do hereby certify 3 that I have read the foregoing payea, 4 and that the same is a correct transcriplion of the 5 answers given by me to Lire questions therein 6 propounded, except for the corrections or changes in 7 form or substance, if any, noted in the attached 8 Errata Sheet. 9 1 0 DATE 11 12 1 3 ERRATA 14 15 1 6 PAGE LINE CHANGE 17 18 19 20 2 1 Subscribed and sworn to before me this day 22 of , 198 _____ . 23 My commission expires: ____________________________________ 2 4 Notary Public l^Rincc R'a'T'v r. sr'fE'OMnia tmc WATER PCB-SD0000027095 Page Line LAWYER'S NOTES WATER PCB-SD0000027096 BCCi P. 0. BENIGNUS D. A. OLSON ftr. Hen Lewis f. He Mallory Company Ubynesboro, Trnmoagm . Otl? ftS! . X apaleglg* for the delay, but after further trmv@l and & long holiday weekend X aa finally sending you W comment regarding the control and disposal of Aroclors. X apprsol&ted the tlm you and your colleagues were able to spend with Handy Grabs* and mm and X was pleased X had the opportunity to tour your plant, ilnee this gave me a better understanding of your overall problem. - dene, of all the plant X personally toured, yours had the biggest challenge to reach the objective we are striving for. X tell you this not to embarass you but, hopefully, to give you some feel for the magnitude of the problem. first, let us consider the welfare of your employees. Aroclors, being chlorinated hydrocarbons, should net be permitted to emceed 0.5 to 1.0 milligram per cubic foot of air in the work area. In your operation. In spite of an perting ventilation system, the presence of Aroolor was noticeable by the blue haze present and insensitive as X have become, the amount was high to mm eye Irritation nMch persisted for several hours aftis? the e^osure. Another area of employee exposure Is dlreot sSdLn contact with the liquid Arcelor. Contact should b# eliminated by operating changes or by providing protcotiv glove and olotMsg . BRta Q0187<* WATER PCB-SD0000027097 99 prtwnfc tte esespe f FCB* to %im sails for !*! of Mtwl md housekeeping sy of have - never been mkm4 to aehAev in fen past,* ivery effort gust b# sad to prevent leakage md soiUag* Kalnfe*- unec ust b kept at a very high stands*# for the artaa ibier leakage ami spin iil ooeaalomlly eeeur. ssfeeh pan oust b@ provided# aes pens mst drain to a lleoting basin or b espUed by responsible espieyeea on a sdbduld basis gUdag of Aroolor tdtti mat witagp bImm should be ifM4 slno separation of FCB** from ester ean bo safely# If sixlnf sanest b avoided* a ateh basin and settling pond should bo prwl4@4 to separate the boafj Aroelor fro the mter# Steiibli oontamaated Arooler should b disposed fey ineJjaerafelon enleh assures essapl#fe@ destruction to COge I^Oj sad HGI# Any lneinerafeioit feclots 600JS vlll result in vaporisation tench will oataaimt# feb atniespher or in partial cxld&feioa yueb nay yield aafeerlals tiiish r r Mglily teal# ft help w mtoar@ tdth their liquid disposal pro fele-j# we lavs offered to accept for future inulasrsfeloa iemp liquid Aroelors shipped to Hoasanto Ca.pany Me @ Knaarteh Plant* Saiujtt, Illinois# Attentions Supervisor# Departent 246# ft dmrf.e for this dis posal Is 3# Pr pound of saterfal. Ibis char: is tentative pending a couplet evaluation of lrulnera felon eosta and does not include frti^fe or container posts# fosstamlraifelosi of its ataespber gust also b eliainafeed# All handling system, amt fee closed tSisrever peaaii-le* fuses exhausted tm& m tank# vessel* or working area mat b trapped and colltoted using <9@adi<sw aid tafenlfist separator# ~ . tolld tonta^ismted with poa# a greater* ehalleng,# Vhtll a proper Isomermtor is toljsM, o ar suggesting that disposal bs sad In an authorised# properly op^rr.tod Sand fill stay fro ar mfer systess# Ths@ seUss laslud* treataaat slays# absorbing eaterials used to tsatala apUXs# rag* mudings aid la mmmrjs mw&ml of rafs ai be astteved tdtfc fulpttb dglneered bo prevent losses and taslntalned soiled good otntfaotu^ng j>neUe ^U.oli result M a M#k standard of teuseke^H^* i*4 brw 001875 I WATER PCB-SD0000027098 > wp* tft inlmmt md @e@ra Bhich fon har txprsssed, 2 ej3 aa#te4@ that you will da ill fan eaa to Ptduc IH# #Mip# of PCS1 fp@t four @poraU.@n yses. all op n fuooooa m tills fcjactive, 1 s eeafiamt that r.o x^ulatorj agency will b mcpalled to tak proeialcsus a#gao* r*ardiag 1M@ us# P PQ1* 4b Ht&l applications, Iincr#lj, . v B. Fapagtore BrnrlroiuMiAal Coatrel #@g Mre H B. Vaught P. Re Kallory coapaiqr Hre C@41 Marr4 F# Re KiXXery f R. Orohsa ......................... '* . BRM 001876 WATER PCB-SD0000027099 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION Cecil Scott, et al Plaintiffs vs. Monsanto Company, et al Defendants ) ) ) ) ) ) ) ) ) STATE OF MISSOURI ) ) : COUNTY OF ST. LOUIS ) No. B-84-1103-CA ' THOMAS M. BISTLINE, being duly svorn, deposes and says: * 1. I as Assistant Litigation Counsel for defendant Monsanto Company ("Monsanto") and I am familiar from personal knowledge with matters set forth herein. I submit this affidavit in support of Monsanto's Motion for a Protect tive Order relating to a Request for Production of Documents served by plain tiffs in this action on February 17, 1985 (hereafter "the Request") and plaintiffs' Notice of Intent To Take Oral Depositions served by plaintiffs on or about March 6, 1986. 2. As Assistant Litigation Counsel for Monsanto, it is my responsi bility , inter alia, to supervise the gathering of documents and information for a variety of litigated matters, including the present action. I am familiar with the manner in which records and information are kept at _ Monsanto, and with the scope and nature of the effort which would be required to conduct a good faith search, consistent with Monsanto's obligations under the rules of this Court, in response to the Request. 3. By its terms, the request would oblige Monsanto to search for every conceivable kind and category of document in its possession, custody or control with any possible relation to three broadly defined categories of chemical substances: polychlorinated biphenyls ("FCBs"), polychlorinated RFYUfRIT " " WATER PCB-SD0000027100 dibenzofurans ("furans") and polychlorinated dibenzodioxins. Such a search would require a review for possible production of literally millions of pages of documents. Material which has been gathered from Monsanto's files for other cases and which generally relates to these three broad categories of chemical substances constitutes nearly 2 million pages of documents. Based upon my experience in other litigation, I estimate that review for production of these documents would require in excess of 1,000 paralegal days and 500 lawyer days of effort. The cost to Monsanto for production of those documents alone, would approximate $1,000,000. This 2,000,000 page estimate relates to documents found in Monsanto files. It excludes documents obtained from other entitles in litigation. Whether such documents (which amount to several million pages) are properly the subject of a production demand is seriously . questionable, particularly since in many cases those documents are the' subject of protective orders. 4. A full and complete response to Mr. Musselvhite's demand may require the collection of documents not already available as the result of previous searches. The files of many employees in various divisions of the company would have to be reviewed, and the documents so collected screened for produce tion. The cost of this additional effort is difficult to predict, but would certainly amount to several hundred thousand dollars. Further affiant sayeth not. Sworn to before me this 11th day of March, 1986 Notary Public My commission expires: Thomas M. Bistline 3464 WATER PCB-SD0000027101 WHITE AND WILLIAMS Bys James D. Shomper/Michael H. I.D. Nos. 33305/04753 1234 Market Street, 16th Floor Philadelphia, PA 19107 (215) 854-7034 & 8636 Malin _ Attorneys for Defendant, Monsanto Company ' ' J SAMUEL ALSTON ' v. SEPTA, et al. .. i PHILADELPHIA COUNTY i COURT OF COMMON PLEAS t JANUARY TERM, 1988 : NO. 5475 , > HARRY ALDINGER v. SEPTA, et al. : : PHILADELPHIA COUNTY s COURT OF COMMON PLEAS i s JANUARY TERM, 1988 : NO. 5350 t K. LOUIS JONES v. SEPTA, et al PHILADELPHIA COUNTY COURT OF COMMON PLEAS JANUARY TERM, 1988 NO. 5318 LOUIS BORQUIN v. SEPTA, et al. : : PHILADELPHIA COUNTY : COURT OF COMMON PLEAS : JANUARY TERM, 1989 : NO. 5347 WATER PCB-SD0000027102 MICHAEL J. O'HARA v. SEPTA, et al. MARGARET E. WALTMAN v. SEPTA, et al. ! PHILADELPHIA COUNTY COURT OF COMMON PLEAS JANUARY TERM, 1989 NO. 5344 t ; PHILADELPHIA COUNTY : COURT OF COMMON PLEAS JANUARY TERM, 1989 NO. 5535 RALPH A. POWERS v. SEPTA, et al CHRISTOPHER DIEMER v. SEPTA, et al. PHILADELPHIA COUNTY COURT OF COMMON PLEAS JANUARY TERM, 1989 NO. 5328 : s PHILADELPHIA COUNTY COURT OF COMMON PLEAS : JANUARY TERM, 1989 NO. 5329 WATER PCB-SD0000027103 WILLIAM COOK v. SEPTA, et al. KARL RUCKER v. SEPTA, et al. NICHOLAS DELLO v. SEPTA, et al. EDWARD V. BARRY v. SEPTA, et al. PHILADELPHIA COUNTY COURT OF COMMON PLEAS JANUARY TERM, 1989 NO. 5334 PHILADELPHIA COUNTY COURT OF COMMON PLEAS JANUARY TERM, 1989 NO. 5327 s PHILADELPHIA COUNTY : COURT OF COMMON PLEAS : i JANUARY TERM, 1989 I NO. 53TCT ... s PHILADELPHIA COUNTY COURT OF COMMON PLEAS JANUARY TERM, 1989 NO. 5492 WATER PCB-SD0000027104 BILLY B. WALLACE v. SEPTA, et al. DAVID GASPARRO v. .. SEPTA, et al. DANIEL F. SCIOLE v. SEPTA, at al. CONSTANTINO IANNONE v. SEPTA, et al. -8 PHILADELPHIA COUNTY 8 COURT OF COMMON PLEAS 8 JANUARY TERM, 1989 8 NO. 5338 8 : PHILADELPHIA COUNTY COURT OF COMMON PLEAS : : JANUARY TERM, 1989 : NO. 5342 i s PHILADELPHIA COUNTY s COURT OF COMMON PLEAS e 8 JANUARY TERM, 1989 s NO. 5345 PHILADELPHIA COUNTY COURT OF COMMON PLEAS JANUARY TERM, 1989 NO. 5350 WATER PCB-SD0000027105 JOSEPH McGILLIGAN, JR. v. SEPTA, et al. JAMES E. O'DELL v. SEPTA, et al. DAVIS E. RAMBO v. SEPTA, et al. RICHARD F. DeHAVEN v. SEPTA, et al. PHILADELPHIA COUNTY i COURT OF COMMON PLEAS i : JANUARY TERM, 1989 NO. 5349 PHILADELPHIA COUNTY COURT OF COMMON PLEAS JANUARY TERM, 1989 NO. 5348 PHILADELPHIA COUNTY COURT OF COMMON PLEAS JANUARY TERM, 1989 NO. 5351 PHILADELPHIA COUNTY COURT OF COMMON PLEAS JANUARY TERM, 1989 NO. 5346 WATER PCB-SD0000027106 LEONARD GULDNER v. SEPTA, et al. DONALD N. BURNETT v. SEPTA, et al. : PHILADELPHIA COUNTY s COURT OF COMMON PLEAS e ? JANUARY TERM, 1989 s NO. 5341 ! PHILADELPHIA COUNTY COURT OF COMMON PLEAS JANUARY TERM, 1989 NO. 5336 WATER PCB-SD0000027107 RESPONSES OF DEFENDANT MONSANTO COMPANY TO PLAINTIFFS' FIRST REQUEST FOR PRODUCTION QE_DflCIMMTS ADDRESSED TCLDREENDANTS Defendant Monsanto Company hereby responds to Plaintiffs' First Request for Production of Documents Addressed to Defendants as follows: 1. Many of the documents requested by plaintiffs in this First Request for Production of Documents were previously supplied by Monsanto Company in response to Plaintiffs' First and Second Requests for Production of Documents in Williams v. Mons^nt, E.D. Pa., C.A. No. 87-1258, or in response to other discovery directed to Monsanto Company in related litigation under the caption In, Re: Paoli Railroad_JEard RCEL.Litigation. E.D. Pa., Master File No. 86-2229. Monsanto Company objects to these document requests to the extent they seek documents already provided by Monsanto Company to plaintiffs in such related litigation. 2. Monsanto objects to each and every request on the grounds that they are overly broad, irrelevant, they seek information not reasonably calculated to lead to the , discovery of admissible evidence, and they impose an undue burden and expense relative to the value of the information requested. 3. Monsanto objects to any and all requests to the extent that they seek privileged communications or attorney work product protected from disclosure under Pennsylvania Rules of Civil Procedure 4003.1 through 4003.5. WATER PCB-SD0000027108 4. Monsanto objects to any and all requests to the extent that they seek confidential, financial or business information without the protection of an acceptable form of stipulation and protective order adequate to preserve the confidentiality of such information. 5. Monsanto objects to any and all requests to the extent that they relate to or require the production or identification of documents, writings, records or publications in the public domain since such information is equally available to the -> plaintiffs. . 6. Monsanto objects to any and all requests to the extent that they seek information concerning activities, policies, practices, information or procedures of any other party to this action because those parties are best able to provide answers concerning their operations. Responses will be provided by Monsanto only and will be based upon information known and available to its officers and supervisory employees. 7. Monsanto objects to any and all requests on the grounds that they are vague, ambiguous and lacking in specificity. Plaintiffs have failed to specifically identify the transformed sj which is/are the subject of the incident alleged in the Complaint. As a result, Monsanto is unable to respond to many of plaintiffs' requests. Notwithstanding this objection, without waiver thereof and in the spirit of discovery, Monsanto has responded to most of plaintiffs' requests on the basis that they seek information pertaining to polychlorinated biphenyls -2- WATER PCB-SD0000027109 manufactured by Monsanto for use in the electrical industry as dielectric fluids. Monsanto further objects to any and all requests to the extent that they request information pertaining to products of Monsanto other than those products containing polychlorinated biphenyls which were manufactured for use in the electrical industry as dielectric fluids on the grounds that such requests are overbroad, vexing, annoying and harrassing; they are irrelevant to the claims stated in the Complaint; and they are not reasonably calculated to lead to the discovery of admissible, relevant or discoverable evidence. Monsanto points out that the f' claims in the plaintiffs' Complaint are based on their alleged exposure to transformer fluid at the Paoli railyard. 3. In providing the following responses to plaintiffs' first requests, Monsanto has undertaken a reasonable effort to locate records and to provide the information requested. However, various records of Monsanto have from time to time been discarded in the ordinary course of business. The following responses are based upon such information as is reasonably available to Monsanto and susceptible to retrieval through reasonable efforts. 9. To the extent that there are responsive documents, Monsanto Company will make each responsive document available for inspection at a mutually convenient time at the offices of White and Williams, 1234 Market Street, Philadelphia, PA 19107. At such time arrangements for photocopying may be made and all costs -3- WATER PCB-SD0000027110 for such copying will be borne by plaintiffs. Monsanto Company will produce only those documents which -e requested and not otherwise objected to because of privilege or subject to other objection. 10. Monsanto objects to plaintiffs' "Definitions" and "Instructions" to the extent they seek to impose obligations or define terms beyond those set forth in Pennsylvania Rules of Civil Procedure 4001 at seq. RESPONSES TO DQCUMENT__SQUESTS All documents which refer or relate to the effects of PCBs on humans or animals. . REQUEST MQ,. 1 1. Defendant objects to Request No. 1 on the grounds that the term "effects" is unduly vague and undefined and that the request is unduly burdensome and overbroad because it is without limitation as to time or specific product and is not limited in any meaningful way to the issues or injuries alleged in this litigation. As such, it is not a request for designated ' documents as required by Pa. R.C.P. 4009 and it exceeds the scope of Pa. R.C.P. 4003.1. Furthermore, the information requested is in the public domain and equally available to plaintiffs. Monsanto further objects to producing documents which "refer or relate to the effects of PCBs on ... animals" as such documents -4WATER PCB-SD0000027 111 are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving its objections, Monsanto refers to its responses to discovery in related litigation and, in particular, the extensive expert affidavits submitted in connection with Defendants' Joint Motion for Summary Judgment on Causation filed in Xn__Rej--PaolJ^J&aiJLrqad Yard_ECB_IJ^^ E.D. Pa., Master File No. 86-2229, and related written briefs which discuss and address in detail the published literature on the health effects of PCBs. All documents which refer or relate to the chemical composition of PCBs. RESQMSE_IQ-^EQIlE5I--HflJ-2 Defendant objects to Request No. 2 on the grounds that the request is overbroad and not limited as to the products allegedly at issue in this litigation. Without waiving its objections, Monsanto refers to its responses to prior discovery in related litigation, and in particular, its responses to a similar request in i , E.D. Pa., No 87-1258 , along with the identification of four published articles containing analyses of the various PCB congeners which were listed and made available to plaintiffs' counsel in a letter from M.H. Malin, Esquire to A.E. Cohen, Esquire dated January 4, 1988. REQUEST_ffiLu-3. 5. - - WATER PCB-SD0000027112 All documents which refer or relate to the "background" levels of PCBs in the United States. RQNS_TTL_REQU^ST_NQ , 3 Monsanto objects to this request on the grounds that it is overbroad and not limited as to geographic scope. Moreover, the term "background levels" standing alone is vague and undefined. Without waiving its objections, Monsanto refers to the scientific literature in the public domain, including the ATSDR report > regarding the Paoli Railyard and surrounding areas, and to the extensive expert affidavits submitted in connection with Defendants' Joint Motion for Summary Judgment on Causation in In Re.i EaQli-Railyai^LJEajaiJgi^^ E.D. Pa., Master Pile No. 86-2229 . REQIIEST-ffiL-A All documents sent or received by you to or from any purchaser or consumer of your PCB products relating to the effects or uses of PCBs. RESQMSE-jg-RQIIESI_MQJ_A ' Monsanto objects to Request No. 4 on the grounds that it is unduly burdensome, overly broad, without limitation as to specific products, geographical scope or time period and because the terms "effects" and "uses" are undefined and vague. Accordingly, the request is not a request for designated documents and exceeds the scope of Pa.R.C.P. 4009. -6WATER PCB-SD0000027113 REQUEST N.Q. -5. All copies of scientific or medical ' literature, journals, articles or treatises which refer or relate to PCBs. RSSQNSE--IQ-REQIIESI-MQ^--5l Monsanto objects to Request No. 5 on the grounds that the phrase "refer or relate" is vague and undefined and because the request is overbroad, unduly burdensome and oppressive in that it is not limited to the products allegedly at issue in this litigation nor is it limited to documents pertaining to humans. Moreover, this information is in the public domain and equally available to plaintiffs. Without waiving its objections, Monsanto refers to the wealth of scientific and medical literature in the public domain and to its prior responses to discovery in related litigation. In particular, Monsanto refers to the extensive expert affidavits submitted in connection with Defendants' Joint Motion for Summary Judgment in In_rft EaoIL-Railroad.JEard_JgCB_J^^ , E.D.Pa. Master File No. 86-2229 and related written briefs which discuss and address in detail the-published literature on PCBs. REQUEST NQ. 6 All; summaries, lists, compilations or schedules of litigation in which you have been a party and the use or effects of PCBs were an issue. REjLKII^^-- Monsanto objects to Request No. 6 on the ground that "use" and "effects" are undefined and ambiguous and because the request is unduly burdensome, harassing and overbroad. Further, any such -7- WATER PCB-SD0000027114 documents were prepared by or under the direction of counsel for Monsanto Company for-purposes of litigation and are, accordingly, protected from disclosure by the attorney-client privilege and attorney work-product rule. ... Without waiving its objections, Monsanto refers plaintiffs to the list of all lawsuits regarding PCBs as a component of dielectric fluids to which Monsanto has been or is a party which it previously produced in response to Plaintiffs' First Request for Production of Documents, Request No. 10 in Williams v. Sept* et al. . E.D. Pa.C.A. 87-1258, Master File No. 86-2229. With respect to all litigations identified in ` your response to request number 6; (a) all docket sheets or compilations of all pleadings, motions, depositions and discovery requests filed in those cases; (b) all pleadings and motions filed in those cases; (c) all transcripts of depositions taken in those cases; (d) all trial transcripts in those cases; (@) all discovery requests filed or. served in those cases; (f) all documents produced by you in those cases which refer or relate to the use or. effects of PCBs; and (g) all expert reports and deposition transcripts. , RESPONSE. TO REQUEST NO. 7 -8WATER PCB-SD0000027115 Monsanto incorporates by reference its objections set forth in response to Request No. 6 and further objects to this request on the grounds that much of the requested information is available in the public domain. Moreover, discovery served in other litigation is neither relevant to the instant litigation nor reasonably calculated to lead to the discovery of admissible evidence and, as such, is beyond the scope of discovery permitted under Pa. R.C.P. 4003.1. In addition, in. many if not most instances the documents requested in sub-parts e, f and g, are subject to protective orders issued by the relevant court which restrict the use and disclosure of such documents. REQUEST. HQ...8 All reports of experts, scientists or physicians rendered on behalf of any plaintiff or any defendant in any litigation concerning the use or effects of PCBs. RESPONSE TQ^REQUESTJaQ^--8. Defendant objects to Request No. 8 on the grounds that the terms "use" and "effect" are undefined and ambiguous, and because the request is not limited to products allegedly at issue in this litigation and is unduly burdensome, harrasing and overbroad. Expert opinions in other cases are not relevant nor capable of leading to relevant evidence in the cases before the court. Moreover, such reports, if available to Monsanto, are also available in public domain or are confidential and privileged communications or work product protected from disclosure under -} - WATER PCB-SD0000027116 Pd. R.C.P. 4003.1 -- 4003.5. In addition, in many if not most cases this information is subject to a protective order issued by the relevant court. Transcripts of all depositions given by William B. Papageorge, including but not limited to depositions in the following actionss 1. The City of Bloomington v. Westinghouse and Monsanto, Civ. No. IP 83-9-C. 2. U.S. v. AUX Corp. 3. U.S. v. Outboard Marine Corp. and Monsanto Co., No. 78 C 1004, N.D. Illinois. 4. Mid-State Farms Cooperative Co. v. International Proteins Corp. - 5. Gary Howell and James Parsons v. Monsanto Corp. 76 601 868 NP, State of Michigan, In the Circuit Court for the County of Wayne. 6. Scott v. Monsanto, No. B-84-1103-CA E.D. of Texas 7. Whitfield et al. v. Sangamo Weston, Inc. C.A. No. 8-84-3184-14 (D.S.C.) 8. Howard Henderson and Mattie Henderson et al. v. Monsanto'Co. et al.. Nos. 83-330644, NP84-424230 NP (D.S.C.) 9. ESCO Mfg. Co. v. Monsanto, CA No. 3--85-- 215'3-R (N.D. Tex.) ' 10. Bethlehem Mink Farm, et al. v. Jurgielewicz Duck Trucking, et al., Civil Nos. 2456, 72-148,72-273 (D.N.H.) 11. Inter-County Farms cooperative Assn. v. Rozansky Feed Co. Inc.; Rozansky Feed Co. Inc. v. Monsanto Co. and General Host Corp.; Monsanto Co. v. Denk Baking Corp., et al., Supreme Court of the State of New York, County of Sullivan, -10- WATER PCB-SD0000027117 12. Unigard Mutual Insurance Co. v. Darrell Abbott, et al. (D. Mont.) 13. Birmingham Fire Insurance Co. v. Pacific Gas & Electric, No. 840161, Superior Court of California, City and County of San Francisco. 14. Galyon and Hickey v. General Electric Co., Moss Trucking Co., Inc. Monsanto Co. and Larry Pressley, Nos. 3-75-198, 3-75-199 (E.D. Tenn.) 15. Charles B. Wright, ax ux v. Monsanto Co., No. B-85-322 CA (E.D. Tex.) 16. Haley v. Michigan Silo Co., C & B Silo Co., Monsanto Co. and Concrete Silo, No. 77 002593 NP, State of Michigan, in the Circuit Court for the County of Huron. , ' RESPONSE TQ REQUEST NO. 9 Monsanto objects to Request No. 9 on the grounds that it is overly broad and not limited in any reasonable manner to the issues involved in this litigation. Accordingly, the request exceeds the scope of Pa. R.C.5. 4003.1. Further, many of the documents requested are a matter of public record and are equally available to plaintiffs. Moreover, in many of the listed cases, this information is subject to a protective order issued by the relevant court. . RECIIEST-ML__IQ. ' All warnings provided by you to any other defendant in this litigation or to the public concerning the use or effects of PCBs. RESPONSE TO REQUEST NO. LQ Monsanto objects to Request No. 10 on the grounds that "warnings", "use" and "effects" are undefined and, accordingly, the Request is unduly vague and incapable of any meaningful -11- WATER PCB-SD0000027118 response. Further, the request is overbroad in that it is not limited in any reasonable manner to any specific products, geographic scope or time period. Without waiving its objections, Monsanto refers to its responses to prior discovery in related litigation. RQ11E^^--LI All documents produced by you in Scott v. Monsanto. No. Civ.-B 84-1103 (E.D. Tex.) Monsanto objects to Request No. 11 on the grounds that~is it improper, overbroad, unduly burdensome, oppressive and not 1 xmited in any reasonable manner to the issues involved in this litigation. Accordingly, the request exceeds the scope of Pa. R.C.P. 4003.1. Moreover, the requested documents are subject to a protective order issued by the court in that case. All studies, tests or analysis performed by you or at your request or direction concerning the use or effects of PCBs. BJELS^IQMSE;--TQ--REQ1IELST--MQ_--12 ' Monsanto objects to Request No. 12 on the grounds that the phrase "studies, tests or analysis" and the terms "use" and "effects" are* undefined and vague and because the request is overbroad and unduly burdensome in that it is not limited as to time or product. Accordingly, the request is beyond the scope of Pa. R.C.P. 4003.1 Furthermore, Monsanto objects to the extent that this request seeks information relating to animal studies -12- WATER PCB-SD0000027119 because such information would neither be relevant nor reasonably calculated to lead to the discovery of admissible evidence. SEQUESULil All affidavits, reports and prior testimony of all of the affiants who submitted affidavits in support of your motion for summary judgment in Brosu_e^aL^ v. Septa, Master File No. 86-2229 (E.O. Pa). RESPONSE TO REQUEST NO. 13 Monsanto objects to Request No. 13 on the grounds that it is overbroad, unduly' burdensome, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. In addition, many of the requested documents are available in the public domain and equally accessible to plaintiffs or are confidential and privileged attorney-client communication or work product protected from disclosure under Pa. R.C.P. 4003.1 4003.5. REQ1IEST^EQR^.DQCTMEMS.^NQ.J--Li All documents which support your contention that PCBs do not harm humans. Monsanto objects to this request on the grounds that it is overbroad and not limited as to time or as to products allegedly at issue in this litigation. Further, plaintiffs have not yet detailed their alleged injuries so as to enable Monsanto to determine what documents would be responsive to this request. Without waiving these objections, Monsanto refers to the wealth of medical and scientific literature in the public domain and to -13- WATER PCB-SD0000027120 the Joint Affidavit and other expert affidavits and supporting documentation filed in support of Defendants' Motion for Summary Judgment in In re; , E.D.Pa. Master File No. 86-2229. REQIIE5I__HQ^_L5 The "world's best reference file on the PCB situation" referred to in the memorandum from Elmer Wheeler dated 8/16/71. RSQiiSfL^!Q_R^ Monsanto objects to Request No. 15 on the grounds that the *. > file referenced in the 1971 memorandum no longer exists and Monsanto cannot now determine what comprised the file. f' REQUEST NO. 16 All documents which refer or relate to the IBT investigation and trial. BfLSLBQNSiL Monsanto objects to this request on the grounds that the phrase "refer or relate" is vague and ambiguous and because the request is overbroad, unduly burdensome and not a request for designated documents in accordance with Pa. R.C.P. 4009. Further, much of the requested information is available in the public domain and is equally accessible to plaintiffs. Inasmuch as this investigation had nothing to do with PCBs it is irrelevant and cannot lead to the discovery of admissible evidence. Moreover, Monsanto incorporates General Objection No. 3. -14- WATER PCB-SD0000027121 REQUEST NO. 17 - All documents relating to clinical or physical examinations of any of your employees exposed to PCBs. NQ. 17 Monsanto objects to Request No. 17 on the grounds that the phrase "clinical or physical examinations" and the term "exposed" are vague and ambiguous. In addition, this request seeks private health information of Monsanto employees and would invade the personal and privacy rights of those employees. For documents relating to blood samples taken from employees at the Krummrich plant possibly exposed to PCB's, Monsanto refers plaintiffs to documents previously produced in related litigation regarding blood studies of Monsanto employees by Dr. R. Emmet Kelly in the early 1970's. Monsanto will also produce documents pertaining to blood samples on six employees in 1974. Copies of any joint defense or sharing agreement in this or related litigation. ........ RESPONSE TQ REQUEST NO. 18 Monsanto objects to Request Number 18 on the ground that "related* litigation is undefined and, accordingly, the Request is unduly vague. Additionally, Monsanto objects to this Request as such information is neither relevant to any issue conceivably involved in this litigation nor reasonably calculated to lead to the discovery of admissible evidence. Accordingly, it exceeds the scope of Pa.R.C.P. 4003.1. . -15- WATER PCB-SD0000027122 REQUEST NO. 19 The standard operating procedures manual and standard manufacturing procedure manual for aroclors and pyranols. RESPONSE TO REQUEST NO. 19 Monsanto objects to this Request because such information is neither relevant to any issue conceivably involved in this litigation nor reasonably calculated to lead to the discovery of admissible evidence and therefore, exceeds the scope of F.R.C.P. 4003.1. Monsanto further objects to this Request in that it seeks production of documents which contain confidential business and proprietary information. REQUEST NO. 20 All documents identified in any answers to interrogatories filed in this litigation. RESPONSE TO REQUEST NO. 20 Monsanto objects to Request No. 20 in that it is overbroad and fails to request designated documents in accordance with Pa. R.C.P. 4009. . REVEST NQ._.21 All documents which refer or relate to the sale, purchase, use, discharge or clean-up of PGBs or substances containing PCBs at the Paoli Railroad Yard or in its vicinity. -16- WATER PCB-SD0000027123 RESPONSE T.Q_RQIIEST_.NQ.., 21 Monsanto objects to Request No. 21 on the grounds that it is overbroad and unduly burdensome in that it is not limited as to time or as to specific products allegedly at issue in this litigation. Moreover, much of the requested information is available in the public domain and is equally accessible to plaintiffs. Monsanto has not been a party to any cleanup suit at Paoli, and any such documents that Monsanto possesses either,have been produced by other parties in discovery in In Re: Paoli Railyard PCS Litigation. E.D. Pa., Master File No. 86-2.229, or have been obtained by Monsanto's counsel and, as such, are protected from disclosure as attorney work-product. Without waiving its objections, Monsanto refers plaintiffs to the sale summary for dielectric fluid products sold by Monsanto to the named defendants in this litigation previously produced by Monsanto in its response to Plaintiffs' First Request for Production of Documents Addressed to Defendant Monsanto Company in Williams v. Septa. et^aL,., E.D. Pa., C.A. No. 87-1258. All*documents you intend to introduce in evidence or rely upon at the trial of this action. RESEQaSELXO REQUEST. NQ. 21 Monsanto objects to this Request as it exceeds the scope of discovery under Pa. R.C.P. 4003.1 and 4009. Without waiving its objections, Monsanto states such documents will be disclosed in -17- . WATER PCB-SD0000027124 its pretrial memorandum or as otherwise required by the Court in any subsequent orders. WHITE AND WILLIAMS Attorneys for Defendant Monsanto Company Dated: James D. Shomper Jeanne Proko-Elkins 14885.FMG -18- WATER PCB-SD0000027125 CmTXFICATB QP _SERVXCB It is hereby certified that a true and correct copy of defendant Monsanto Company's Response to Plaintiffs' First Request for Production of Documents Addressed to all Defendants was served on the following on November 3d t 1989 by hand delivery: ^ , Arnold E. Cohen, Esquire Klehr, Harrison, Harvey, Branzburg and Ellers 1401 Walnut Street Philadelphia, Pa. 19102 and Harold E. Kohn, Esquire Joseph C. Kohn, Esquire Kohn, Savett, Klein & Graf 24th Floor 1101 Market Street Philadelphia, Pa. 19107 and on the following counsel by First Class Mails Richard A. Kraemer, Esquire Margolis,Edelstein, Scherlis, Sarowitz and Kraemer 1315 Walnut Street Philadelphia, Pa. 19107 David Richman, Esquire Pepper, Hamilton > Scheetz 3000 Two Logan Square 18th and Arch Streets Philadelphia, Pa. 19103 Roger F. Cox, Esquire Blank, Rome, Comisky & McCauley Four Penn Center Plaza Suite 1200 Philadelphia, Pa. 19103 WATER PCB-SD0000027126 Robert A. Sutton, Esquire Assistant City Solicitor City of Philadelphia 1540 Municipal Services Building Philadelphia, Pa. 19102 Stephen M. McManus, Esquire Liebert, Short, Fitzpatrick & Hirshland 1200 One Franklin Plaza Philadelphia, Pa. 19103 R. Thomas McLaughlin, Esquire Kelly, Harrington, McLaughlin and Foster 1700 Atlantic Building 260 South Broad Street Philadelphia, Pa. 19102 . G. Daniel Bruch, Jr., Esquire. Swartz, Campbell and Detweiler 17th Floor, Land Title Building Philadelphia, Pa. 19110 John W. Vardaman, Jr., Esquire Williams & Connolly Hill Building 839 Seventeenth Street, N.W. Washington, D.C. 20006 Attorney for Monsanto Company 14222.FMG WATER PCB-SD0000027127 STATE OF MISSOURI ) ) COUNTY OF ST. LOUIS ) SS: ' J. R. Bley being duly sworn, deposes and says that he is an assistant secretary of defendant Monsanto Company, a corporation, and is authorized to sign this Response on its behalf; that he has read the foregoing Response of Monsanto Company to Plain tiffs' First Request for Production of Documents Addressed to All Defendants and is familiar with the contents thereof; that ^deponent is without personal knowledge of the matters stated in the foregoing Response; that the foregoing Response has been assembled by authorized employees and counsel of Monsanto Company, who have informed deponent that the foregoing Response is true; and that to the best of the deponent's knowledge, this Response is true. MONSANTO COMPANY Assistant Secretary Subscribed and sworn to before me this 1989. Notary Public KATHY A EHRHARQ NOTARY PUBLIC 'STATE OF MISSOURI WATER PCB-SD0000027128