Document R2L8Q2ga2v2OJY2dkDN5VKg0V

MEMORANDUM TO: John Kim FROM: Paul Merrell RE: Nevada Power v. Monsanto, et al. DATE: August 4, 1993 Regarding the Jeff Bair deposition, here is the suggested deposition strategy you requested: Begin by getting down the official line. This can be done by using the newspaper clippings, prior affidavits, and Westinghouse briefs to get the official version. This sets you up to impeach the official version through your subsequent questioning. After obtaining the official version, go back to day one and question Bair based on his own notes from the relevant time periods to learn when he first heard of the risk notification legislation pending in Congress and then work forward obtaining a history of all of his relevant actions. In this way, all of your questions should have a foundation for the later questions, and make it more difficult to deny key questions toward the end of the deposition. Particularly important admissions to obtain are: (1) Bair has no personal knowledge of whether the documents were in fact destroyed; (2) there was a nine-day period between the issuance of the order to destroy the records and the countermanding instruction to halt the destruction of the records because of the insurance litigation; (3) Bair was never disciplined and in fact was promoted despite what he had done; (4) if you think you can get i t , an admission that the documents would have been destroyed but for the Memorandum August 5, 1993 Page 2 countermanding order involving the insurance litigation; (5) to Bair's knowledge no written order countermanding the order to begin the destroying evidence was ever issued; (6) developing document retention policies is not the normal function of the tort litigation unit of the Westinghouse legal department. It is critically important to authenticate Exhibit 1212. David Schalk allowed himself to be deflected and never did obtain authentication. To accomplish this, I suggest that you make the Rule 30(b)(6) notice an exhibit to the deposition, obtain an admission that Bair is the person designated to testify regarding section 1 of the notice which is the origin of the program of document retention described in Exhibit 1212, and then press him on whether he was prepared to testify regarding the authenticity of Exhibit 1212. If he says that he is not, insist that Arvin Maskin provide a witness who is prepared to testify regarding the authenticity of Exhibit 1212. Included among the documents you have been provided with should be typewritten versions of Bair's notes and his inventory of the industrial hygiene files. Mr. Bair has been ordered by the Court to be prepared at the beginning of his next deposition to provide a copy of the typewritten version with his corrections on it. The Court has reserved a ruling on whether the typewritten version will be admissible, but has ruled that we are entitled to a corrected version so that we know what Mr. Bair's notes say (they are very hard to read). Defendant Westinghouse has already defied this order once, resulting in a new order from the Court making it Memorandum August 5, 1993 . Page 3 emphatic that we are entitled to that corrected version before Mr. Bair's deposition is taken again. Also, included in the documents appended to the affidavit of Francis Gary is a clean copy of the document we have designated as Exhibit 1212. This is a copy from Westinghouse's own files, and attaches apparently what is the original tabbed appendices. Conspicuously absent from the official Westinghouse copy is what is referred to in Exhibit 1212 as dioxin/furan worker health guidelines. The absence of this document from the official copy, to me, is our best shot at creating an appearance that Westinghouse actually destroyed evidence. On all other PCB or dioxin/furan documents referred to in Exhibit 1212 or in B a i r 1s notes, defendants have been able to produce copies. On the dioxin/furan worker health guidelines, they managed to find at another location a copy or what they claim to be a copy. Bair needs to be shown the document Westinghouse is now claiming to be that guideline, and to be asked questions along the line of why it wasn't still a part of the file copy. I would suggest leading into that by having Bair describe the dioxin/furan worker health guideline document as closely as possible before showing him the document Westinghouse now claims is it. That way he may give you the information that would allow you to demonstrate that the document that was produced is not the original one. Overall, I think you also need to keep a running tally of what other witnesses say about Jeff Bair, and stick to the idea of Memorandum August 5, 1993 Page 4 taking him last. That way, he may be inclined to disagree with what other people have said about him. I will be following this memo up with another that is referenced to specific documents. I hope that this preliminary assay will allow you to begin preparing for the Bair depo. j:\nev\transit\kiml .mem BRADLEY & MERRELL JONES, JONES, CLOSE & BROWN, CHARTERED Seventh Floor -- Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101-6026 (702) 385-4202 M E S S A G E FRO M X E R O X 7024: (7021 385-1655 DATE: At {q ^ W& TO: John H. Kim, Esq. FAX #: (713) 654-5070 PH O N E #: (713) 654-4433 FROM: Paul E. Merrell CLIENT/MATTER: Nevada Power v. Monsanto C LIEN T/M ATTER NO.: 11927.2 DOCUMENT(S) DESCRIPTION: N U M B ER OF PA G ES (including cover page): MESSAGE: THIS TELECOPY IS IINTENDED ONLY FOR THE AD D RESSEE NAMED ABO VE if MAY CONTAIN INFORMATION THAT IS PRIVILEGED AND CONFIDENTIAL IF YOU HAVE RECEIVED THE TELECOPY IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE, DESTROY ALL COPIES, AND DO NOT DISSEMINATE THE INFORMATION TO AN YO N E THANK YOU FOR YOUR ASSISTANCE. IF YOU EXPERIENCE PROBLEMS WITH THIS TRANSMISSION, please call (702) 385-4202 and ask for: Randy Andreini, Ext. 615 M E S S A G E F R O M X E R O X 7 0 2 4 : i7Qg 3B5-1B55 DATE: - ^ 5 )__) S 3 ^ TO: John H. Kim, E s q . F A X sii: PHONE #: FRO M : Paul E. N/lorrell C L IE N T / M A T T E R : Nevada Power v. M onsanto C L IE N T / M A T T E n NO.: 11827.2 D O C U M E M T (S) D E S C R IP T IO N : . ^ ,, (713) 654-5070 (713) 6S4-4433 N U M B E R O R P A G E S (Includ ing co ve r p o ga); M ESSAG E: TXO Tra PCOPV 1 3 lUfTEMOEDOW.Y TOWTHAOPREBSPitlMn; ABOVE, rr MAYCONTMN *#OFUMT1 0 N TFVVTP p w i i F W Fna m p c o ii o e w t im . irvouMAvtH e o tJ V E n rM CTn r o o p y w p i f ^b f wmw v u a iw m em atbly WVr e j P HOU C .O e g in O V A U .C O P lE S .W O D O W O T D I treEMl W TE T M e WPQIW A 10W TQANY0W E. THANK VOLT ran voun sGtamkNce- IF Y O U E X P E R IE N C E P R O B L E M S WITH T H IS T R A N S M IS S IO N , please call (702) 385-4202 and a sk for: Randy Andreini, Ext. 615 TRANSMISSION REPORT THIS DOCUMENT WAS CONFIRMED (REDUCED SAMPLE ABOVE - SEE DETAILS BELOW) COUNT ** TOTAL PAGES SCANNED : 5 TOTAL PAGES CONFIRMED : 5 * * # SEND *** No. REMOTE STATION START TIME DURATION #PAGES MODE RESULTS I KIM 8- 5-93 2:28PM 2 103" 5/ 5 COMPLETED 9600 TOTAL 0:02'03" 5 NOTE : No. OPERATION NUMBER 48 4800BPS SELECTED EC ERROR CORRECT' G2 G2 COMMUNICATION PD POLLED BY REMOTE SF STORE & FORWARD Rl RELAY INITIATE RS RELAY STATION MB SEND TO MAILBOX PG POLLING A REMOTE MP MULTI -POLLING RM RECEIVE TO MEMORY