Document OxzR8ZzR154Xwj20gaKk072X

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA 2I 3 NEVADA POWER COMPANY, a Nevada )| 4 Corporation, )! >i 5> Plaintiff, ) 6) -vs- )! 7) MONSANTO COMPANY, a foreign ) 8 corporation; GENERAL ELECTRIC )j COMPANY, a foreign corporation, ) 9 WESTINGHOUSE ELECTRIC )\ CORPORATION, a foreign )j 10 corpoxation; and DOES 1 through )( XXV; inclusive, ) 11 !12 I 13 Case No. GV-S-89-555-LDG-LRL 14 DEPOSITION OF: CLARENCE W. BICKERSTAFF 15 VOLUME l 16 17 DATE: July 22, 1993 18 Thursday, 9 :35 a.m. 19 PLACE : Westin William Penn Hotel 2 0 530 William Penn Place Pittsburgh, PA 15222 21 22 TAKEN BY: Plaintiff 23 REPORTED BY: 24 Jan Notary- Public* CAT-LINKS TM CERTIFIED COPY Pittsburgh, PA 152r (4191 71 1 HR. MASKIN: Objection to form and 2 foundation to the extent this witness knows. 3 A. 4 5 I know one for sure. And I can't -- I was not the i one who went out dbing the testing, so X just can't II J remember exactly .which facilities still had some 6 inventory left. 7 Q. Do you know who went out and did the testing? 8 A. I believe one of the industrial hygienists from our 9 department. 10 Q. Did that industrial hygienist take samples and then 11 send those to an outside laboratory? 12 A. X believe at that time we were using Clayton 13 14 Q. 15 Laboratories to do our analysis. i Over what period of time didii you use Clayton Laboratories? 16 A. X think as it indicates in here, we started using 17 Clayton, X believe, either late -- sometime in '79 18 or '80 we started using Clayton. 19 20 (Whereupon, the phone rang.) 21 BY MR. SCHALK; 22 Q. 23 Who did the testing before (then? We have to go off | the record. The phone's ringing. 24 CAT-LINKS TM Pittsburgh, PA 1521 9fi 1-9.32:1 72 1 (Whereupon, the following proceedings were I 2 stenographically reported with At torneys Paul 3 Merrell and Konrad Caiteux via speaker phone.) j i 4 '> HR. MERRELL: If we could go on the I I 5 record, this is Paul Merrellj for Nevada Power 6 Company. I'm on the telephone from Nevada. On site 7 at the deposition we have David Schalk for Nevada 8 Power Company, Arvin Haskin for Westinghouse 9 Electric Corporation, and Konrad Caiteux is on the i i 10 : line from New York also for Westinghouse. i I 11 Is there anyone else in the room? 12 HR. MASKIN: YeahJ there are various j 13 people in the room. i 14 HR. MERRELL: Coulid we get on the record I 15 who they are, please? | i 16 HR. HASKIN: Weill I guess at the moment, [ 17 we have David Gartenstein, a colleague from my 18 office, and Meghan Wise from Westinghouse. We have i i 19 a videographer and the court reporter. That 20 basically covers it. j 21 HR. HERRELL: The) deponent is not in the 22 room at this point? 23 HR. HASKIN: He's'inot. I somehow forgot I 24 Hr. McCrea. I* ** AmTTXTVO Tftfl Pitts.b. -u-r.igh/,IPnAnn1n522? 73 1 MR. MERRELL:DavidMcCrea's there? * i| 2 M R . McCREA: Yes, Ir'm here, Paul. 3 MR. MERRELL: What I'm calling about is 4 that I started speaking about this with Konrad i i 5 yesterday and h a d .to interrupt, and we played II , 6 telephone tag forthe rest of the day. 7 In the magistrate's July 16th order, 8 Section 4, he had ordered that Westinghouse -- or 3 no, it isn't Section 4, excuse me , Section 5 to 10 submit some indexes to him for in-camera review i 11 forthwith. And the judge hajd indicated that he 12 expected to be looking at thjose last Monday .and i 13 would make a ruling. 1 i I 14 When we didn't obtain a ruling, we called 15 over to the courthouse to se,e if we could find out 16 what was going on and learne|d that Westinghouse had r 17 not complied with the Court'Js order and had not i 18 submitted the documents in cjamera. i 19 When I spoke with ;Konrad yesterday, he i| 20 indicated that Westinghouse jhad no intent do so 21 until Friday. As I understood it, it would be in 22 the afternoon. II 1 I i ! 23 The Judge has informed all parties that i i 24 he's going to be out of town next week. We need CAT-LINKS TM Pittsburgnhc, iPOAQO1O5222 74 1 those documents if the Court is goJing to release i 2 them, we should have had them* already, but we very i 3 definitely need them before wje do the portion of the 4 30(b) (6) that has to do with -whether the documents 5 in the industrial hygiene collection still exist. i 6 Now, X asked Konrad whether he would be i 7 willing to lay over that portion of the deposition 8 into the week of the 2nd so that we could get a 9 ruling from the Court on those indexes before we i i10 hold the relevant depositionJ And Konrad, I 11 believe, was pretty clear that Westinghouse was not 12 willing to do that. 13 So at this point, I see two issues, one is i 14 Westinghouse's disobedience with the Court order. 15 And the second is their refusial t1o accommodate the [: 16 deposition -- revise the deposition schedule to i 17 accommodate the problems caused by their * 18 disobedience. ( I19 Now, do you have any change in position? 20 HR. CAITEUX: This is Konrad Caiteux. I 21 Paul, X just want to. address a couple of things. 22 Number one, the conference with the Court was 23 recorded. We don't have the tran1script yet, but the 24 transcript will be clear as Ito what the Court said CAT-LINKS TM Pittsburgh, PA 15222 (412) 261-2323 75 1 and didn't say. It is xny recollection that the 2 Court never made any indication that he wanted the 3 documents in chambers on last Monday. What the 4 Court order says is forthwith. We have checked with 5 our local counsel, and we have been assured that if 6 we give our in-camera submisLion to the Court by 7 this Friday, that we would be in compliance with the 8 Court's order. ! 9 Number two, I made no representations as i 10 to when we were going to get it in on Friday. I il 11 never said that it would be (Friday afternoon. And 12 what I think what I told you was that we're doing 13 our best to get it in as quickly as possible. 14 And number three, I don't believe that I 15 indicated to you that Westinghouse was unwilling to i I 16 put the depositions over. I think that where we i 17 were when we broke off and then we were playing, 18 telephone tag for the- rest of the day was that I was 19 explaining to you that, in our view, that there are 20 two separate issues here, One is the Bair 21 memorandum and how that relates to documents in 22 industrial hygiene. And number two, the PCB 23 document collection which was made over a year 24 before the PCB -- or before the Bair memorandum was CAT-LINKS TM Pittsburgh, PA 1522' Ml 2 261-2323 76 1 written. 2 And as I said that in our view, those were 3 two separate issues, and I believe we were beginning \ 4 to discuss your position as to why you thought you 5 needed to have those two thilgs simultaneously. And 6 that's where we left off. 7 MR. MASKIN: In terms of going forward, it 8 seems to me that on behalf o!f Westinghouse, I've 9 never ever heard anything in terms of a refusal on I 10 ' the part of Westinghouse to attempt to accommodate 11 schedule of the Plaintiffs. 12 MR. MERRELL: You weren't on the telephone 13 call. 14 MR. MASKIN: And I'm not hearing it from 15 Konrad, but the long and short of it is, is that in 16 order to accommodate and jus t to move this along, we 17 will produce the 30(b)(6) witness on that issue 18 We'll delay it until August 2nd or whatever, at a 19 time that's convenient, and [that way, this other 20 process will have taken place in advance of that. 21 So that's not a problem. 22 MR. MERRELL: Now, which issue are you l (I 23 discussing? You say on thisi issIue, are you talking I| 24 about the portion of the 30(b)(6) that deals with CAT-LINKS TM Pittsburgh, PA 15222 *>A h n i l n r j f t Q 77 1 whether the documents still exist in the industrial -i I 2 hygiene collection? \ 3 MR. MASKN: Yes, sIi.r. So as to that 4 portion of that deposition, if you want to resume 5 that for your timing reasons by August 2nd, we'll 6 p*ick the exact date, we'll woIrk wi]th you. 7 M R . MERRELL: Okay 1 With the stipulated 8 order that we've been putting together for the Court 9 on depositions that would go forward after the close 10 of the discovery schedule on July 23rd. 11 MR. MASKIN: Yes, sir. |12 MR. MERRELL: The portion of the 30(b) (6) 13 that has to do with whether those industrial hygiene 14 documents still exist can be entered under Section 15 A, which is that the depositions should go forward 16 after the discovery schedule with no reservation of 17 motions for protective orders to borrow the 18 depositions. 19 MR. MASKIN: I'm not sure X understand 20 what you're talking about. All I'm saying is to the 21 extent that we have a 30(b)(6) witness will speak to i22 the existence of documents from the industrial 23 hygiene department. That witness can go forward 24 after the close of discovery, official close of Oittchnrcrh PA 15222 78 X discovery this Friday. And we'll work out a 2 schedule that works for you. 3 MR. MERRELL: Where I'm coming from is 4 that we have a Court scheduling order that says that 5 all fact depositions are to be completed by 6 tomorrow. 7 MR. MASKN: Yeah. As >1 recall/ the Court 8 is more than happy, and I think said so by 9 stipulation, we can work something out. The Court, 10 believe me, will be more than happy for us to agree 11 to something. And let's jus t do it. 12 MR. MERRELL: I'm telling you that we have 13 to get Court approval for any -- beforehand for any 14 depositions that need to go forward after that date. 15 MR. MASKIN: If you want to get up a 16 stipulation, Konrad and you could work that out. 17 really don't want to slow down this deposition. 18 M R . MERRELL: You don't want to meet and 19 confer, counsel? 20 MR. MASKIN: We're in agreement, on this 21 point. Work out a stipulation with Konrad, and 22 i let's get on to something else. 23 MR. MERRELL: Okay. Now, I have one other 24 question that relates to this. To me, forthwith /"' ArpTTXTXrO TV Pittsburgh. PA 15222 79 X means just what it says in the dictionary. 2 immediately. And Konrad tells me that the reason [ 3 they're taking so long is that they're preparing an <* 4 in-camera submission. 5 Does Westinghouse |ave any intent to 6 submit affidavits or explanatory materials that we 7 are not going to see? 8 HR. MASKIN: Well, anything that's in 9 camera you're not going to see. So there's going to 10 be a submission, and we're not foot dragging here. 11 This is a real task, Paul. 12 HR. HERRELL: I'm asking a direct 13 question. I would like a direct answer. 14 HR. HASKIN: I think I' ve just given it. 15 1 think the answer is I don't know, but the 16 materials we're sending, and the exact form of the 17 submission in camera, I can' t tell you today. 18 HR. HERRELL: Will Westinghouse agree to 19 me participating in the in-camera review under a 2 0 protective order? 21 HR. HASKIN: Of colurse not. That's why 22 it's in camera. [ i 23 HR. HERRELL: I would like to know whether I 24 you are submitting explanatory materials that are i -1----- L T>A 1ROO 80 1 anything other than the documents that the Judge 2 ordered you to submit in camera. 3 MR. MASKIN: I don' t know at this time, 4 MR. CAITEX: This is Konrad Caiteux 5 again. Let me answer that. If you look at the 6 Court's order, what the Court told us to submit in 7 camera was the index and an explanatory memorandum 8 to the Court. That's what we intend to do. 9 MR. MERRELL: Gxay. Then I'm probably 10 going to file a motion with he Court today to 11 participate in that in-camera review under the 12 protection of a protective order. 13 MR. MASKIN: File whatever you want, Paul. 14 MR. MERRELL: Okay: You feel like we've 15 met and conferred on that? 16 MR. MASKIN: Yeah, I think we've covered 17. this issue enough. Can we get on with our 18 deposition, Paul? Is there anything else we need to 19 talk about? 20 MR. MERRELL: Are there any other portions 21 of the 30(b)(6) that are going to need to be set 22 over until after July 23rd? 23 MR. MASKIN: I'll ilet Konrad speak to I 24 this. There's going to be depositions next week, /"'ATT TM1TC Til Pittsburgh, PA 15225 H 81 1 not on the point we just discussed. But we have 2 Mr. Lawrence next week, we have Mr. Paschke, I 3 believe. There are a series of depositions relating 4 to this which we've discussed with you which we'll 5 go over and we can do it by stipulation. 6 And I believe, I think we're all 7 proceeding in good faith. I think if you're 8 concerned, once again, that somehow you're being 9 foreclosed because of the deadline, I believe the 10 magistrate understood that things were going forward 11 next week. And once again, you can work out a 12 stipulation with Konrad, and I'm sure we can work 13 that out. If you want to submit it to the i 14 magistrate to protect yourself, i you think that's 15 necessary, go ahead. 16 MR. MERRELL: Arvih, you've been 17 particularly difficult to dejal with in this 18 deposition. I'm asking you whether there are any 19 portions of the 30(b)(6) that we haven't discussed. 20 anything other than the portion relating to whether 21 those documents still exist that are going to be 22 continued past -- need to be continued past the 23 23rd. 24 MR. MASKIN: I think the answer to that is HAT-LINKS TM 7T7 Pittsburgh, PA 15222 82 i J1 yes, not that I've been difficult to work with. But 2 I think the fact that gentlemen like Hr. Lawrence,^ 3 for example, will be produced in part in a 30(b)(6) 4 type capacity, so to that extent, yeah. He will go 5 forward next week. Not on the iss^ue of the I 6 continued existence, but inasmuch as he does have 7 information to relate, as the person most 8 knowledgeable, at least in part, on the formulation 9 and decision not to implement the draft retention 10 proposal, he'll be going on next week. 11 M R . HERRELL: Then I propose that we word 12 the thing that the 30(b)(6) deposition itself will 13 be continued into the week of the 2nd. 14 MR. MASKINs Well, I'm hot sure I 15 understand what that means entirely. If to the I16 extent you're saying -- there are certain 17 individuals who we are putting up, because who we 18 designated as a 30(b)(6) deposition, of course, is 19 our decision. 20 We're not opening this up wholesale, but 21 to the extent that there are 30(b)(6) witnesses that 22 we intend to put up, I think I have to find them. 23 Those I'm happy to continue after the 23rd. I think 24 there may even be another witness as well who I Pittsburgh, PA 15222 83 1 think we haven' t found yet wh!ich is not a 30(b) (6) 2 witness who may go over. And I think we've had 3 agreements on that kind of stuff. Again, that's the i 4 kind of stuff X think you can work out with Konrad. 5 MR. MERKELL: As I understand it, you're 6 willing to stipulate that th -- we enter an order 7 stating that the 30(b)(6) would be continued after 8 the 23rd to the extent it isn't completed by the 9 23rd? 10 MR. MASKIN: With the one proviso, let me 11 think about how to word this, Paul, but with the one 12 proviso is that discovery -- we've got certain 13 individuals who we are going to be producing as 14 30(b)(6) depositions. Anything we do, I do not want 15 construed to mean that we're agreeing to, consenting 16 to an ongoing process that involves more discovery 17 than we're essentially agree ing to now on this 18 subject. We won't agree bas ically to have more 19 discovery on this subject and go on indefinitely, 20 Therefore, I'd like it as narrow and focused as we 21 can make it. ii 22 By that X mean that we ve got a very 23 limited number of 30(b) (6) deposx tions we intend to i 24 produce. X'11 tell you what they are, and those can n *rr t txti/'c? m Pittsburgh, PA 15222 84 1 go over past the 23rd. And I will stipulate to 2 that. you can continue the 30(b) (6) overall 3 outstanding deposition notice, beyond the 23rd, and 4 we will designate those people who we think are 5 responsive. So I think we really do have a deal. 6 H R . HERRELL: One of tile procedures that 7 happens in a 30(b)(6) is that you get in there, 8 inevitably you'll find out that the witness you're 9 dealing with does not have all the answers to all 10 the questions, creating an obligation of 11 Westinghouse to go out and find other people, so I'm 12 not willing to enter into an agreement that says 13 that your list of witnesses is it. 14 MR. MASKIN: No, no. I think you can -- I 15 think we're likely to oppose and anticipate opposing 16 discovery of any beyond the 30(b)(6) and the 17 witnesses that you've noticed already. People that 18 you've noticed or we're in :he process of finding. 19 we'll put up past the 23rd, but to the extent that 20 we are opening this up to new discovery, I think we 21 would oppose that. 22 And as I sit herej, I c.on't have the i1 23 notices in front of me, Paul, but I think Ray 1 24 Paschke may well also be appear: .ng somewhat in a r iiii */n t TfcTtrri m i j Pittsburgh, PA 1522r 85 1 30(b)(6) capacity to the extent he's talking about 2 documents -- the process of obtaining and collecting 3 PCB documents for preservation. 4 MR. MERRELL: Do you have any problem with 5 entering into an order that still simply states that 6 the 30(b) (6) deposition will.be continued past the 7 23rd? 8 M R . MASKIN: Well, except to the extent, 9 and again, I'm not trying to be difficult, I'm 10 thinking allowed with you, Paul, but to the extent 11 of reopening depositions that have already been 12 taken, again, you can work out this language with 13 Konrad, but to the extent it speaks to keeping i 14 depositions open that we feel ought to be over, we 15 wouldn't agree to that. But I'm sure you can come 16 up with some language we can all agree to. 17 MR. CAITEUX: This is Konrad Caiteux 1I 18 again. Paul, you need to identify us also. I mean, 19 we talked a lot about a 30(b) (6), but the 30(b) (6) 20 has been noticed and renoticed so many times, I want 21 to get a definition, and I want the exact 30(b) (6) 22 notice that we're talking about, and then we can 23 negotiate from there. 24 1 ,_1------U DA 1KOOO 86 1 (Whereupon/ there was a brief pause in the 2 proceedings.) 3 * 4 MR. MERRELL: This notice dated March 5 6 MR. CAITEUX: March 12th, 1993? 7 MR. MERRELL: Yes. 8 MR. CAITEUX: Okay. 9 MR. MASKIN: Can I interrupt a second? I 10 am confident because 1 know the both of you get 11 along so well, that the two of you can work this 12 out. I believe, Paul, we're going to be able to 13 come up with a stipulation we can, all live with so 14 we can get on with the deposition^. It sounds like 15 we're on the right path. 16 MR. MERRELL: Arvin, you and I do not get 17 along. And I want final language for a stipulation 18 before we end this meet and confer. 19 MR. MASKIN: Maybe the two of you should 20 be talking and then you just let us know what you 21 finally agree upon and I'm sure we can work it out. 22 MR. CAITEUX: This is Konrad Caiteux 23 again. Paul, I don't see why we can't work it out. 24 We've been able to work out cjuite a bit of stuff Pittsburgh. PA 15222 87 1 over the last week or so. And whi^le there's a court 2 reporter there and we're on the record, I really 3 resent the implication that y'ou'rei making that 4 Westinghouse is not trying to be cooperative in this 5 matter, because we are. It's not just a one-sided process. I mean, all the Defendants noticed quite a i| 7 few 30(b)(6) depositions of Nevada Power this week, :| 8 but yet your request, we've elected to put those 9 over. So I mean, there's a lot gjoing on here, and 10 you're focusing in on one thing and you're saying 11 we're being uncooperative, and I kind of resent 12 that, because we are trying to be cooperative. 13 HR. HERRELL: Where I'm coming from, 14 Konrad, is that I made a deal with Arvin yesterday i 15 morning and he entered into thatjdeal expressly to 15 avoid getting a ruling by the Judge. Well, then he I f17 broke the deal later in the day and we had to go i 18 back to the Judge again. [ I 19 HR. HASKIN: Boy, I must be confused. You 20 and I didn't even speak yesterday. 21 HR. HERRELL: Excuse xJe, the day before 22 yesterday. But if we have this spirit of 23 cooperation, let's get some language written right 24 now. Pittsburgh, PA 15222 88 1 MR. MASKIN: Why don't you work it out 2 with Konrad? 3 MR. MERRELL: No, I'm going to work it out 4 with you present, because you're the one saying you 5 have problems with the language I keep suggesting. 6 And I keep coming up with new ways of wording it, 7 and you keep coming up with something being wrong 8 with it. Why don't you propose some language, 9 Arvin? 10 MR. CAITEUX: Paul, I think that's 11 tremendously unfair. They're in the middle of a 12 deposition. If anything, this is delaying 13 discovery. 14 MR. MASKIN: Absolutely. 15 MR. MERRELL: Will you quit talking about 16 delaying discovery and let's write some language? 17 MR. CAITEUX: Well, why don't you let them 18 get on with the deposition. Paul and I will talk on 19 the phone and we'll negotiate some language. 20 MR. MERRELL: Arvin, are you going to live 21 with what Konrad and I work out? 22 MR. MASKIN: Konrad will confer with me as 23 necessary -24 MR. MERRELL: Then let's deal with it now. Pittsburgh. PA 1522i 89 1 I want language. 2 MR. MASKIN: You've tied up this 3 deposition and this witness enough already. We've 4 got to leave. We have a deposition to take. My 5 designee, Konrad/ I have the utmost confidence in. 6 We'll work this out together. 7 MR. MERRELL: He doesnft have your 8 authority to enter into the stipulation without 9 going back to you. 10 MR. MASKIN: Konrad knows what his 11 authority is, and I'll look forward to hearing from 12 him as necessary. 13 M R . MERRELL: Okay. The Judge has time 14 available in the West Coast time 15 MR. MASKIN: Thatfs fine, but -i 16 MR. MERRELL: Okay. And I'm not going 17 into a process where Konrad has to go back to you to 18 get approval. t II 19 MR. CAITEUX: Paul, wait a minute. I 20 resent that. Paul, we nego tiated all last week, and 21 everything that I agreed on , you got. 22 MR. MASKIN: If 1} want to go to the 23 magistrate with this record again, go right ahead, 24 Paul. A A m T f l T t / A Tftl Pittsburgh. PA 152 90 1 MR. M E R R E L L : Okay.j Y o u s a i d t h a t X can 2 work it out with Konrad, and then Konrad can check 3 it out with you, and then we can get it approved, 4 okay? I'm telling you, if you have to approve it i 5 and Konrad has to approve itjboth, let's work it out ii 6 now. | j 7 MR. MASKIN: I understand that, and we iii 8 respectfully disagree. We've got a deposition to 9 take, Paul. We've got business to do. Then the 10 Court said, how many lawyers; do you have, i 11 Mr. Maskin, and you have multiple lawyers here at I I 12 the deposition, we all have ithings to do, Paul. Go i 13 ahead and talk to Konrad. ^ 14 MR. MERRELL: It's our deposition. 15 MR. MASKIN: _ Yes, II understand that, but I 16 it's my witness that you're tying up. i| 17 MR. MERRELL: Are you refusing to meet and i 18 confer with me on specific language for a 19 stipulation? ; i i 20 MR. MASKIN: No. 'Konrad, I think you're i 21 going to have to address this. The answer is no, i i 22 we're not disagreeing to meet and confer, but when 23 you say me, that includes the Westinghouse lawyers 24 which include, I'm happy to|say, Konrad. Ptshiirerh. PA 1522/ 91 1 MR. MERRELL: I want everyone who has to 2 approve this language to agree to a language right 3 now. 4 MR. MASKIN: I understand you'd like that, 5 but the answer's no. We will proceed the way I 6 described it. And 1 know what you'd like, but we 7 can't always have it the way we like, Paul, and 8 we've got a deposition to begin. 9 MR. MERRELL: When this deposition begins 10 is up to us, not to you. Okay? 11 MR. MASKIN: Paul, are you holding up this 12 deposition because -- Paul, we have nothing more to 13 discuss, I think. Why don't you get with Konrad. 14 We're ready to go with this deposition. You're 15 keeping my witness up for no reason. 16 MR. MERRELL: Are you going to relinquish 17 your request that Konrad consult with you before he 18 enters into a stipulation? 19 MR. MASKIN: No, and I m not going to 20 discuss this. This subject; I think, we've talked E 21 to death already. If you want 9 to the 22 magistrate, please, go ahead, but -- well, that's 23 your decision. 24 MR. MERRELL: You?re saying that you have r>ATVT t w v c ni Pittsburgh, PA 15222 92 1 to approve it, but you will not deal with me; is 2 that what you're saying? 3 MR. MASKIN: No. This is one of those I i 4 times when it is important that we do have a record. 5 And we'll discuss this with tihe magistrate. i 6 MR. MERRELL: If you aren't refusing to i 7 deal with me on specific language, then let's work 8 it out. ! I I 9 MR. MASKIN: I think we've had enough of 10 this. We're happy to work with you with specific 11 language. Konrad stands readiy to work it out with i 12 you. Go ahead and do it. i 13 MR. MERRELL: Okay 1 I am hearing that you 14 are refusing to deal with mejon specific language, | 15 yet retaining the right to veto what Konrad and I 16 work out. 17 MR. MASKIN: I'm not going to characterize 18 it. This conversation on this point, I think we've 19 reached a conclusion. I don't know what you're 20 hearing anymore, Paul. 21 MR. MERRELL: But you're not responding, 22 Arvin. i ( 23 MR. MASKIN: I have responded. We've got i 24 work to do and you're tying [us up. DiH-nViurwli PA 93 1 MR. MERRELL: Why don't we do the work, 2 Arvin, and then you can get on with your deposition, 3 We've spent longer than it would take to write 4 language with you arguing aljout Whether you should 5 have to deal with me. 6 MR. MASKIN: I have nothing else to say, 7 Paul, on this. I mean, go ahead , work out your 8 stipulation. I'm finished, I'm not going to 9 proceed this way. 10 MR. MERRELL: Konrad, are you going to 11 stipulate with me without having to go back to 12 Arvin? 13 MR. CAITEUX: Paul, I think the record is ! j14 clear as to what Arvin has proposed. We're trying 15 to work with you. And quite frankly, if you really 16 seriously want to bother the magistrate with an 17 issue of such minor importance, then I guess you 18 have to do that. 19 MR. MERRELL: Arvin, can I call you and 20 get a final deal without any more interruptions? i 21 MR. MASKIN: This requires a judgment call I 22 on the part of Konrad. He|'ll call me if he thinks [ 23 it's appropriate. Paul, think about what you're j i 24 saying. Step back, take al breath and think about Pittsburgh, PA 152r 94 1 what you're saying. We're tying this up over -- how 2 I dictate and how X practice law is xny own business, 3 and I should say, X think we 're conducting it in 4 good faith. I know your counsels may think -- well, 5 I won't involve them in this, but suffice it to say 6 that we're ready to go with the deposition. X can't 7 believe we're having this conversation, Paul. 8 X think we're finished. At this point, if 9 you don't like anything I'm saying, we're signing 10 off. Go ahead and talk to Konrad. 11 MR. MERRELL: Do you have problems, if X 12 can't get language out of Konrad by 1 o'clock that 13 this goes to the Judge? 14 MR. MASKIN: Let's see what your progress 15 is. If we really can't agree well, let's see, 16 I'm really confident that we're going to come up 17 with language we can agree with. I don't want to 18 speculate. We don't have a disagreement at this 19 point. We just need to work out language. 20 MR. MERRELL: That's what I agree we need 21 to do, and we could have done it in half the time 22 trying to duck working on it . 23 MR. CAXTEUX: Arvin is not trying to duck 24 on it. What he's trying to do is propose a Pittsburgh, PA 1522' 95 1 procedure that seemed to work: last week because we 2 got quite a lot done, and let|fs you and I negotiate. 3 And Westinghouse will employ the same process they 4 used last week when decision making was done while 5 they go on with their deposition, It won't in any 6 way, shape or form interfere with your rights to i 7 take the depositions. j 8 HR. MERRELL: I wanIt to deal directly with 9 the person who has the authority to enter into a 10 language. That is not an unreasonable request. 11 MR. MASKIN: Konrad has authority to enter 12 into language. However, to jthe extent that he feels 13 it's appropriate to contact me, he will. 14 HR. MERRELL: Let' s deal with it. 15 MR. MASKIN: That' s all there is to it. 16 Now, let's get going, Paul, j I'i;. talk to you later. 17 MR. MERRELL: Okay. Let the record 18 reflect that Mr. Maskin has refused to deal with me 19 on language. Now, if I don't have language by 1 20 o'clock, I am going to the Judge Is that clear? i21 i 22 MR. MASKIN: Paul; I'm sorry, I was 23 talking to one of your colleagues. I take it you're 24 announcing that I'm refusing to do something? Pittsburgh, PA 1522f 96 1 MR. MERRELL: Yeahi You've refused to 2 negotiate language with me, and you're running away 3 from me. And I am saying that the record is pretty 4 clear that you are refusing to deal with me on 5 language, and you're refusing to identify anyone for 6 me who has authority to enter intio language without 7 going through any more running around the bush. 8 MR. MASKIN: Konrad has authority. If he 9 feels it's appropriate to call me, that's it. 10 MR. MERRELL: Arvin, if Konrad and I do 11 not have language by 1 o'clock, this is going to the 12 Judge. Is that the way you want it? 13 MR. MASKIN: Thatis not the way I want it, 14 but enough said on the subject. But at least this 15 is another one of those occasions I'm glad we have a 16 transcript. Good luck, gentlemen. 17 MR. MERRELL: David, could you go out and 18 call me, please? 19 20 (Whereupon, there was a discussion off the 21 record.) 22 23 MR. MASKIN: Again, let the record 24 reflect -- Pittsburgh, PA 15225 97 1 MR. CAITEUX: Paul, this is Konrad from 2 New York. 3 MR. MERRELL: Okay.' Thank you, Konrad. 4 I'll be back with you in a few minutes, Konrad. 5 MR. MASKIN: One second. I'm still I 6 talking. Let the record, reflect that we've got a 7 witness who has been waiting to go forward with the 8 deposition -9 MR. McCREA: Don't take more time. 10 MR. MASKIN: It's now been a half-hour of 11 a witness waiting to complet e his deposition. We'd 12 like to proceed with the deposition. We've been 13 interrupted either by having reporters show up late 14 because of scheduling, new r^eporers for no reason. 15 And at one point yesterday, we had to wait until we 16 got a new camera crew. I mean, We've got witnesses 17 here already on time to take depositions. Let's get 18 on with it. 19 MR. MERRELL: I'm trying to work in 2 0 accommodation with you from a situation where you 21 have disobeyed a Court order. And I want language 22 that's going to accommodate the mess you have made 23 by your disobedience of the Court's order. 24 MR. MASKIN: Let's go now. We've never r'A'T'.TTMTfS TM Pittsburgh, PA 1522? - -- < a m 98 1 disobeyed an order -- well, I think we've taken this 2 as far as we can. Good luck, gentlemen. Work out 3 the language. I'm sure it will come out find. 4 Thank you. 5 6 (Whereupon, there was a lunch break in the 7 proceedings.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Pittsburgh, PA 1522r 99 1 COMMONWEALTH OF PENNSYLVANIA ) CERTIFICATE 2 COUNTY OF ALLEGHENY SS : 3 I, Janice L. Graham, a Notary Public in and for the 4 Commonwealth of Pennsylvania, do hereby certify that the 5 witness, CLARENCE W. BICKERSTAFF, was by me first duly 6 sworn to testify to the truth, the whole truth, and 7 nothing but the truth; that the foregoing deposition was 8 taken at the time and place stated herein; and that the 9 said deposition was recorded stenographically by me and 10 then reduced to printing under my direction, and 11 constitutes a true record of the testimony given by said 12 witness. 13 I further certify that I am not a relative, employee 1 4 or attorney of any of the parties, or a relative or 1 5 employee of either counsel, and that I am in no way 1 6 interested directly or indirectly in this action. 17 IN WITNESS WHEREOF, I ha to set my hand and 1 8 affixed my seal of office this day of July, 19 1993 . 20 21 22 23 24 P ATI TXTirC T* Pittsburgh. PA 15222 10 0 1 COMMONWEALTH OF PENNSYLVANIA ) ERRATA COUNTY OF ALLEGHENY :) SHEET 2 I, CLARENCE W. BICKERSTAFF, have read the foregoing 3 pages of my deposition given on July 221 1993, and wish to make the following, if any, amendments, additions, 4 deletions or corrections: 5 Pg. No. Line No. 6 Change and reason for change: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 In all other respects the transcript is true and correct. 21 CLARENCE W,, BICKERSTAFF 22 Subscribed and sworn to before me thi s _________ day o f _______________, 1993 23 24 Notary Public (JG) PAT-TJNKS TM Pittsburgh, PA 15222 <^im OC1.999Q 112 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA 2 3 NEVADA POWER COMPANY, a Nevada ) 4 Corporation, ) ) 5) 6 Plaintiff, ) ) -vs- ) 7) MONSANTO COMPANY, a foreign ) 8 corporation; GENERAL ELECTRIC ) COMPANY, a foreign corporation, ) 9 WESTINGHOUSE ELECTRIC ) CORPORATION, a foreign ) 10 corporation; and DOES 1 through } XXV, inclusive, ) 11 ) ) 12 Defendants. ) Case No. CV-S-89-555-LDG-LRL 13 14 DEPOSITION OF: JEFFREY J. BAIR 15 VOLUME II 16 17 DATE : July 20, 1993 18 Tuesday, 3:30 p .m, 19 PLACE : Westin William Penn Hotel 20 530 William Penn Place Pittsburgh, P^ 15222 21 22 TAKEN BY: Plaintiff 23 REPORTED BY: 24 Janice L. Graham Notary Public CAT-LINKS TM DISCOVERY TM F Pittsburgh, PA 15222 (412) 261-2323 171 1 hygiene. 2 Q. What was being audited in these reports? 3 MR. MASKIN: Just objection to foundation. 4 THE WITNESS: Industrial hygiene would go 5 out and audit Westinghouse sites. 6 BY MR. SCHALK: 7 Q. Would that be manufacturing facilities? 8 A. I believe that would include manufacturing 9 facilities. 10 Q. {. Would it include dump sites? 11 MR. MASKIN: Again, objection to 12 foundation. 13 THE WITNESS: I have no idea. 14 15 (Whereupon, there was a recess in the 16 proceedings.) 17 18 MR. MERRELL: This is Paul Merrell for 19 Nevada Power. My understanding is that Westinghouse 2 0 has agreed that we will continue the present 21 30(b) (6) deposition with Mr. Bair testifying and 2 2 complete the 30(b) (6) deposition portion of 23 Mr. Bair's testimony at a later time. And that we 24 will also be taking Mr. Bair in his personal CAT-LINKS TM nTQrnvrpv tm /T S 7 7 Pittsburgh. PA 15222 172 1 capacity at a later time. Is that correct with 2 Westinghouse? 3 MR. MASKIN: Well, no, it's not exactly 4 right. 5 MR. MERRELL: Okay. 6 Judge on the phone 7 MR. MASKIN: Well, no, 1et me finish my 8 .thought. 9 MR. MERRELL: You have one minute before 10 \ I'm calling the Judge, counselor. Make it fast. 11 MR. MASKIN: Go call the Judge. Let's 12 call the Judge. 13 MR. MERRELL: I'll put you on hold. I'm 14 dialing the Judge right now. 15 16 (Whereupon, there was a orief pause in the 17 proceedings.) 18 19 MR. SCHALK: (Speaking to Judge Leavitt's 20 clerk). My name is Paul Merrell. I have the 21 participants in the Westinghouse deposition in 2 2 Pittsburgh on the line with me. And I guess we need 23 to have the Judge resolve another dispute. 24 MR. MASKIN: We cani t hear him again. CAT-LINKS TM DISCOVERY TM Pittsburgh, PA 15222 (412) 261-2323 199 1 memos as I recall them which would suggest that the 2 document production program might have been under 3 way 4 In light of the numerous affidavits and 5 representation made by Westinghouse in its own 6 defense since that; clearly this Court is certainly 7 not prepared to make the kind of pronouncement that 8 the Texas Judge made. I haven't made up my mind at 9 all yet. Where we find ourselves {right now is 10 trying to find some way for you to get to the bottom |11 of this as efficiently as possible and put this 12 inquiry to rest one way or another. 13 I'm certainly appreciative of the gravity 14 of the allegations and the importance of this 15 inquiry/ but what I'm telling you is that hopefully 16 you'll find an answer one way or another here very 17 soon, because we can't let you just go on, you know, 18 without end. 19 HR. MERRELL: I hear. Your Honor, and I 20 don't want to argue with you, but I want to point 21 out that we are now in the first day of our I 22 depositions on this subject.| 23 JUDGE LEAVITT: Right. I 24 MR. HERRELL: There is one thing 1 would CAT-LINKS TM DISCOVERY T** F Pittsburgh, PA 15222 (412) 261-2323 200 1 ask for a little guidance on before we leave today [2 which is the process you'd like us to go through 3 before we involve you. Fart of my problem is that 4 your time is, of course, limited and the times you 5 are available are limited. And so I feel some 6 pressure to alert you that there is a problem coming 7 and to set a time so that- counsel have some impetus [8 to. try tee reach their agreements before that time. 9 JUDGE LEAVITT: I apprec iate that, but at 10 ; the same time, it does put evLrybody in a bit of an 11 awkward position. You know, obviously before you 12 alert me and we set a time certain , I certainly 13 expect that counsel will have made every effort to 14 resolve the differences, if not narrow them 15 considerably. I know you're somewhat at a II 16 disadvantage because Hr. Schalk is there in 17 Pittsburgh dealing face to face wl th Mr. Maskin, and 18 you're not, you're here. And that makes it a little 19 bit difficult for you, but I don't want you to call 20 me unless it is clear that the principals involved, 21 Mr. Maskin and Hr. Schalk and Hr. Cailteux, have 22 given this a thorough bona fide meet and confer 23 before you get a hold of me and we set a time 24 certain. CAT-LINKS TM DISCOVERY TM ME Pittsburgh, PA 15222 (412) 261-2323 201 i This is the second consecutive call now in 2 which Mr. Maskin has asked why are we on the phone, 3 I thought we were trying to work this out. That may 4 be partially true, but 5 M R . MASKIN: Tour Honor, may I be heard 6 for a second? 7 JUDGE LEAVITT: Although X only have until 8 the end of this week, I don't have that schedule 9 right in front of me. I believe I do have a couple 10 of hours tomorrow, not that I'm inviting you to use 11 all of those. And on Thursday, I will be free for 12 two and a half hours in the afterrioon, and then 13 Friday, I'll be free for two and a half hours in the 14 morning. 15 MR. MASKIN: Your Honor, before you hang 16 up, can I be hee^rd for two seconds? 17 JUDGE LEAVITT: Yes , certainly. 18 MR. MASKIN: Thank you. First, to the 19 extent that we are having a 30 (b) 6) opportunity and 20 another opportunity for the witness to testify in 21 his so-called individual capacity; is there any 22 reason, as we're all gathered here, why the witness 23 can't immediately, upon the conclusion of the 24 30(b)(6) deposition, and presumably will have an CAT-LINKS TM DISCOVERY TM F Pittsburgh, PA 15222 (412) 261-2323