Document J3ddk02NmzmvnOkn1DaLrYLRK

1 2 THE HONORABLE SHARON ARMSTRONG 3 1T\ Tp -f -% r li iH r,`i 5 v 4 ') inf; I, 5 J i fUU!'i 6 BERGA i'KUL/u 7 8 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 9 10 IN RE ALL ACR 27 KING COUNTY NO. 03-2-48455-5 SEA ASBESTOS CASES OF BERGMAN & 11 FROCICT CARRIER CORPORATION'S MOTION TO MODIFY ORDER 12 ON PLAINTIFFS' MOTION TO 13 COMPEL DISCOVERY 14 Oral Argument Requested 15 16 RELIEF REQUESTED 17 18 On November 24, 2004, the court granted Plaintiffs' motion to compel 19 production from Carrier of records relating to 132 navy ships dating back to 20 World War II. Reviewing its responsive pleadings to plaintiffs' motion, Carrier 21 recognizes that it may not have adequately described the burden to locate and 22 23 identify documents sought by plaintiffs relating to specific navy vessels. For the 24 reasons set forth below, Carrier asks the Court to modify its order as follows: (1) 25 require a rolling production of those records related to the 28 ships on which these 26 CARRIER, INC.'S MOTION TO MODIFY ORDER ON PLAINTIFFS' MOT COMPEL DISCOVERY- 1 RGG3772/DS/ on Smith Cochran Dickerson PROFESSIONAL SERVICE CORPORATION 1700 Financial Center, 1215 4th Avenue Seattle, Washington 98161-1007 Telephone: (206) 623-4100 Fax: (206) 623-9273 1 plaintiffs served and where plaintiffs have produced some evidence that Carrier 2 products were onboard; (2) records of the 28 ships shall be produced by no later 3 than Monday, December 20th; (3) defer that portion of its order relating to the 4 5 remaining ships; provided that in the event that any plaintiff provides evidence of 6 the presence of a Carrier product on any of the remaining ships, Carrier shall 7 produce records relating to such ships within ten days thereafter; and (4) waive the 8 discovery deadline solely for plaintiffs against Carrier to allow discovery plaintiffs 9 10 deem necessary with respect to the claims against Carrier. 11 However the Court rules on this motion to modify, Carrier requests that it 12 be granted additional time to comply with the Court's order. 13 EVIDENCE RELIED UPON 14 Declaration of Allen Hopkins 15 16 Declaration of Michael Jaeger 17 PROCEDURAL HISTORY 18 In their February 2004 document request, plaintiffs sought records relating 19 to Carrier manufactured products that were supplied, used, or installed on any of 20 21 more than 900 navy ships. (Plaintiffs also sought records about, among other 22 things, corporate decisions to warn users of Carrier products about warnings and 23 safety information, measures employed by Carrier to protect its employees from 24 asbestos related disease, and technical manuals regarding Carrier products that 25 26 may have included components that contained asbestos.) After counsel conferred, CARRIER, INC.'S MOTION TO MODIFY ORDER ON PLAINTIFFS' MOTION TO COMPEL DISCOVERY- 2 RGG3772/DS/ Wilson Smith Cochran Dickerson A PROFESSIONAL SERVICE CORPORATION 1700 Financial Center, 12154thAvenue Seattle, Washington 98161-1007 Telephone: (206) 623-4100 Fax: (206) 623-9273 1 plaintiff agreed to provide a more limited list of ships that may relate to plaintiffs' 2 claims. The information was provided on June 18, 2004 after two written requests 3 by Carrier's counsel. In accordance with an agreement of counsel, on August 31, 4 5 2004 plaintiffs furnished naval archive records that reflect the presence of Carrier 6 products on 28 ships on which some of the plaintiffs served. (Exhibits supporting 7 the foregoing summary are attached to the Declaration of Carrier's counsel filed 8 with Carrier's Response to Plaintiffs' Motion to Compel.) Carrier agreed to 9 10 produce records as to the 28 ships where plaintiffs produced some evidence of 11 Carrier product on the vessels. Plaintiffs have indicated that there is evidence in 12 some of the other vessels of Carrier products but no such evidence has been 13 disclosed. 14 Carrier has now produced more than 1,000 pages of documents responsive 15 16 to plaintiffs' discovery and continues its efforts to identify and produce the ship 17 specific documents plaintiffs seek.1 See Declaration of Michael Jaeger. 18 ARGUMENT 19 A. The Task Of Identifying and Locating Documents Relating To A Single 20 Navy Ship Is Complex And Extremely Time Consuming, Often Requiring 21 Research Of Internet Sites And Other Publicly Available Sources. 22 Carrier has only recently been added as a defendant in substantial asbestos 23 litigation in Washington and around the country. The plaintiffs herein first 24 named and served Carrier as a defendant in February of this year as part of the 25 26 CARRIER, INC.'S MOTION TO MODIFY ORDER ON PLAINTIFFS' MOTION TO COMPEL DISCOVERY- 3 RGG3772/DS/ Wilson Smith Cochran Dickerson A PROFESSIONAL SERVICE CORPORATION 1700 Financial Center, 1215 4th Avenue Seattle, Washington 98161-1007 Telephone: (206) 623-4100 Fax: (206) 623-9273 1 ACR XXVI trial group. Carrier has not been required to respond to a document 2 request as broad as that posed by plaintiffs here, relating to 161 ships dating back 3 more than sixty years, in asbestos litigation in any other jurisdiction12. 4 5 Consequently, Carrier has never compiled the documents requested here for any 6 other case. The organizational and logistical difficulties associated with producing 7 records on such a scale is only now fully appreciated. 8 Attached is a declaration of Allen Hopkins, Carrier's Contract Manager9 10 Marine Systems Group, whose duties include research regarding products 11 manufactured and sold by Carrier and its affiliated brands. In addition to his 12 normal duties, Mr. Hopkins is responsible for collecting historical documents 13 relating to the asbestos litigation. His declaration illustrates that the collection of 14 records of Carrier products on navy ships, even those relating to a single ship, is no 15 16 simple task. More importantly, the bulk of the effort relates not to Carrier 17 records that are maintained by job number in chronological order but from 18 public sources neither owned nor controlled by Carrier and equally available 19 to plaintiffs. 20 21 Carrier maintains an archive that includes records related to some, but not 22 all, naval contracts dating back to World War II. The records consist of technical 23 24 1 It is Carrier's understanding that it now has substantially complied with all discovery that is the subject of the court's Order except for the production of ship-specific documents described herein. 25 2 There is some confusion in the record on the number of ships involved. The total number subject to the Court's order is 161. This includes the 28 vessels with some demonstration that Carrier 26 product(s) were onboard. CARRIER, INC.'S MOTION TO MODIFY ORDER ON PLAINTIFFS' MOTION TO COMPEL DISCOVERY- 4 RGG3772/DS/ Wilson Smith Cochran Dickerson A PROFESSIONAL SERVICE CORPORATION 1700 Financial Center, 1215 4th Avenue Seattle, Washington 98161-1007 Telephone: (206) 623-4100 Fax: (206) 623-9273 1 manuals for equipment designed and manufactured in accordance with naval 2 specifications. The archive includes more than 1,000 binders of records organized 3 chronologically and, within each year, by contract number. 4 5 Production of documents relating to a specific snip requires more than a 6 simple reference to records organized according to the vessel's name. When only a 7 vessel name is provided (as is the case here), Mr. Hopkins is first required to 8 research the appropriate hull number associated with a particular ship. Over time, 9 10 a particular name may be used by the Navy for more than one vessel and, 11 therefore, each bears a separate hull number. Information required to identify a 12 hull number for a specific vessel is available at various internet sites. When a hull 13 number is identified, further research is required to determine when and where the 14 vessel was built and when and where any refits of the vessel took place. Again, 15 16 such information is available at various naval history websites on the internet as 17 well as hard copy sources. These sources are equally available to plaintiffs as well 18 as Carrier. See generally Declaration of Allen Hopkins. The foregoing steps, while 19 extremely time consuming, are necessary before Carrier can even begin to access its 20 21 own records. Those measures, however, represent the bulk of the work required of 22 Carrier to identify and produce records of the type requested by plaintiffs. 23 Only when the preliminary research is completed is Mr. Hopkins then able 24 to undertake the review of Carrier's archives, manually processing each binder and 25 26 cross-checking the information therein against each hull number, to determine CARRIER, INC.'S MOTION TO MODIFY ORDER ON PLAINTIFFS' MOTION TO COMPEL DISCOVERY- 5 RGG3772/DS/ Wilson Smith Cochran Dickerson A PROFESSIONAL SERVICE CORPORATION 1700 Financial Center, 12154thAvenue Seattle, Washington 98161-1007 Telephone: (206)623-4100 Fax:(206)623-9273 1 what records, if any. Carrier may possess with respect to a given vessel. Available 2 records with respect to a given vessel may consist of hundreds of pages in multiple 3 volumes. 4 5 As reported in his Declaration, Mr. Hopkins estimates that the research 6 required to respond to plaintiffs' document request would require more than 1,000 7 man hours, likely encompassing more than 30,000 pages of documents. Using the 8 approximately hourly compensation of Mr. Hopkins ($50 per hour) the cost of 9 10 producing the requested records, not including reproduction charges, will approach 11 $50,000. 12 B. Carrier's Efforts To Produce Records Responsive To Plaintiffs' Request. 13 The Court's November 24, 2004 Order requires production of the 14 referenced documents by December 10th. This order was not received by Carrier's 15 16 counsel until Monday, November 29. After receipt of the order, representatives 17 from Carrier's national counsel have been dispatched to Carrier's archive in 18 Syracuse, New York to assist in the search for responsive documents. It is 19 expected that local counsel will begin to receive records in the next several days. 20 21 These records will be produced as received. Carrier expects that responsive 22 documents with respect to the 28 ships on which Carrier products are alleged to 23 have been present will be produced by December 20th. 24 25 26 CARRIER, INC.'S MOTION TO MODIFY ORDER ON PLAINTIFFS' MOTION TO COMPEL DISCOVERY- 6 RGG3772/DS/ Wilson Smith Cochran Dickerson A PROFESSIONAL SERVICE CORPORATION 1700 Financial Center, 1215 4th Avenue Seattle, Washington 98161-1007 Telephone: (206) 623-4100 Fax: (206)623-9273 1 Carrier is not able to provide the Court with an accurate estimate of the 2 time required to produce available records for all 161 ships. Such an estimate may 3 be possible by the week of December 13th. 4 5 IV. CONCLUSION 6 Carrier acknowledges that the record could have been more fully developed 7 identifying the logistical hurdles in collecting the requested records and that this 8 would have been helpful to the Court in fashioning an appropriate discovery order. g 10 As the foregoing summary and the attached Declarations of Allen Hopkins and ii Michael Jaeger reflect, amassing those records is a task requiring the mobilization 12 of considerable effort at a significant expense. Ironically, it is now clear that the 13 most time consuming and burdensome task is collecting information from public 14 sources equally available to plaintiffs. Accordingly, Carrier respectfully requests 15 16 that the Court modify its Order to allow a rolling production of records relating to 17 the foregoing 28 ships, with the same to begin immediately and to be completed 18 no later than December 20, 2004. Carrier also asks that the Court defer that 19 portion of the order with respect to the remaining ships identified in plaintiffs' 20 21 request until evidence of the presence or a Carrier product on such ship is 22 produced. In the event that such evidence is forthcoming, Carrier is required to 23 produce responsive documents within 10 days thereafter with the discovery 24 deadline extended to allow plaintiffs to conduct any necessary discovery deferred 25 26 by delays in production of Carrier records. CARRIER, INC.'S MOTION TO MODIFY ORDER ON PLAINTIFFS' MOTION TO COMPEL DISCOVERY- 7 RGG3772/DS/ Wilson Smith Cochran Dickerson A PROFESSIONAL SERVICE CORPORATION 1700 Financial Center, 1215 4th Avenue Seattle, Washington 98161-1007 Telephone: (206) 6234100 Fax: (206) 623-9273 1 Alternatively, Carrier requests that the court transfer these cases to the 2 ACR XXVIII trial group so that full discovery as ordered by the court can be 3 completed in time for plaintiffs to conduct related follow-up discovery in advance 4 5 of the September 25, 2005 trial date. With the exception of plaintiff Joseph 6 Simonetta (Simonetta v. Saberhagen Holdings, Inc., et al., Cause No. 04-2-02874-4 7 SEA), all of the subject plaintiffs in these cases are deceased. As the court is aware, 8 transfer of cases to subsequent ACR trial groups has been done in the past where 9 10 the interests of the parties and substantial justice so require. In that regard, the 11 cases at issue here were transferred from ACR XXVI to ACR XXVII at plaintiffs' 12 request, which was not opposed by Carrier. 13 DATED this 7th day of December, 2004. 14 WILSON SMITH COCHRAN DICKERSON 15 16 17 18 19 of Attorneys for Defendant Carrier Corporation 20 21 22 23 24 25 26 CARRIER, INC.'S MOTION TO MODIFY ORDER ON PLAINTIFFS' MOTION TO COMPEL DISCOVERY- 8 RGG3772/DS/ Wilson Smith Cochran Dickerson A PROFESSIONAL SERVICE CORPORATION 1700 Financial Center, 12154thAvenue Seattle, Washington 98161-1007 Telephone: (206) 6234100 Fax: (206) 623-9273