Document RJD17YDD0eVMwbyK4gEJorVg8

Telephone: (702) 385-4202 BRADLEY & MERRELL c/o Jones, Jones, Close & Brown, Chartered 700 Bank o f America Plaza 300 South Fourth Street, Seventh Floor Las Vegas, Nevada 89101-6026 July 14, 1993 Fax: (702) 385-1655 VIA FAX Konrad L. Cailteaux Weil, Gotshal & Manges 767 Fifth Avenue New York, New York 10153 David Kiernan Williams & Connolly 725 12th Street, N.W. Washington, D. C. 20005 Re: Nevada Power Company v. Monsanto Company, et al. USDC, District of Nevada, Case CV-S-89-555-LDG-LRL Dear Messrs. Caiteaux and Kiernan: Attached please find the Table of Contents and certain documents corresponding to the Table which are not in your possession but which will be discussed during today's telephonic conference with Judge Leavitt at 4:00 p.m. (Las Vegas time.) Sincerely, BRADLEY & MERRELL LSG:bms Attachments LYNDA S. GARFINKLE Office Manager P:\USERS\LSG\NVP0UER\C0UNSEL.L26 TABLE OF CONTENTS Documents for July 14, 1993 Hearing on Plaintiff Nevada Power Company's July 8, 1993 Motion to Compel Entry upon Westinghouse's Headquarters for Purposes of Inspection, Copying, and Depositions Telephonic Conference 4:00 p.m. 1. Outline of Issues 2. Magistrate Lawrence R. Leavitt's April 5, 1993 denial of Westinghouse's Motion for Protective Order 3. Plaintiff Nevada Power Company's March 12, 1993 Notice of Taking Depositions (of C.W . Bickerstaff, Jeffrey Bair and person identified as "you" in Exhibit 1212) 4. Plaintiff Nevada Power Company's April 1 3 ,1 9 9 3 Re-Notice of Depositions and Request for Permission to Enter Upon Land for Purposes of Inspection, Copying and Depositions (of C.W . Bickerstaff, Jeffrey Bair and person identified as "you" in Exhibit 1212) 5. Plaintiff Nevada Power Company's May 14, 1993 Request for Permission to Enter Upon Land for Purposes of Inspection and Copying 6. Plaintiff Nevada Power's Second May 1 4 ,1 9 9 3 Request for Permission to Enter Upon Land for Purposes of Inspection and Copying to Defendant Westinghouse 7. Excerpt from Westinghouse Electric Corporation's Response to Nevada Power's Motion for Entry of Default (Westinghouse Industrial Hygiene had PCB-related documents in 1986 and waiver of privilege) 8. Waivers sa** 9. Plaintiff Nevada Power Company's July 8, 1993 Motion to Compel Entry upon Westinghouse's Headquarters for Purposes of Inspection, Copying, and Depositions a. April 13, 1993 letter of Paul E. Merrell, attorney for Nevada Power Company, accompanying their request to inspect property 10. Motion to Compel Discovery Relevant to Alleged Destruction of Documents by Westinghouse 11. Motion for Hearing on Plaintiff's Planned Depositions of Certain Westinghouse Employees 12. Subpoena Duces Tecum and Plaintiff Nevada Power Company's March 12, 1993 Notice of Taking Deposition of Defendant Westinghouse Electric Corporation Pursuant to FRCP 30(b)(6) . IK A .k HEARING OUTLINE I. PENDING MOTIONS AND SUGGESTED DISPOSITION: A. NPC motion to compel discovery: 1. Contention is that subject of WEC retention/destruction of documents from Indstrial Hygiene Dept, is not privileged. a. Need stipulations/judicial determination on: (1) Proper scope of privilege objections during depositions. RECOMMENDED DISPOSITION: Parties instructed to continue conferring, set hearing date to reduce issues prior to depositions. (a) issues primarily involve application of principles of work product and attorney client privileges, waiver thereof, and crime/fraud exception thereto. (2) Production of purportedly privileged documents appended to Bair 22-page memorandum, approximately 10 documents. RECOMMENDED DISPOSITION: Expedited ruling of waiver by incorporation into no-longer privileged document or by waiver of subject matter. Alternative, expedited submission for in camera review. (a) Parties have conferred. If in camerF^LhfSSetion, parties should discuss before Court reviews, to determine possible further compromise. B. NPC motion to compel inspection of property 1. Contention is that NPC should be allowed to depose witnesses in presence of records at issue. RECOMMENDED DISPOSITION: expedited ruling. Briefing should not be necessary. C. NPC motion for discovery hearing. RECOMMENDED DISPOSITION: no separate action needed; subsumed in above suggestions for hearing. 1 iA II. ISSUES TO BE SCHEDULED A. Request to inspect records gathered in 1986 company wide sweep for PCB records. RECOMMENDED DISPOSITION: Establish briefing schedule; consider potential need to take relevant portion of Rule 30(b)(6) related deposition after fact deposition cut-off date. B. Redefinition of subpoena duces tecum to redefine request and privilege claims. RECOMMENDED DISPOSITION: Set expedited hearing date; WEC to provide privilege log if contested; decision and production to occur prior to relevant Rule 30(b)(6) deposition. 1. Intimately related to Rule 30(b)(6) deposition -- needs expedited decision 2. Contains privilege claims for which there has been no privilege log. Parties have conferred, but need at least one further conference since Courts opinion received. 2 A _k 14 1 IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSISSIPPI 2 3 4 5 IN RE: ASBESTOS PERSONAL INJURY CASES, CONSOLIDATED 6 7 B 9 TRANSCRIPT OF THE PROCEEDINGS HAD UPON MOTIONS IN THE ABOV 10 REFERENCED CAUSE BEFORE THE HONORABLE KATHY KING JACKSON, 11 CIRCUIT JUDGE, ON THE 18TH AND 19TH DAY OF FEBRUARY, 1993. 12 13 14 15 MARY ABRAMS, ET AL PLAINTIF 16 VERSUS NO. 88-5422( 17 GAF CORPORATION, ET AL DEPENDAN 18 19 LOUIS BELL, ET AL PLAINTIF 20 VERSUS ^ - -,_ NO. 89-5121t 21 ARMSTRONG WORLD INDUSTRIES, INC. , ET AL DEFENDAi 22 23 H. KLEAMON BILBO, ET AL PLAINTII 24 VERSUS NO. 89-5088 25 ARMSTRONG WORLD INDUSTRIES, INC. , ET AL DEFENDA1 26 27 WILLIE E. BARNES, ET AL 28 VERSUS PLAINTi: NO. 90-5247 29 EAGLE-PICHER INDUSTRIES, ET AL DEFENDA1 ccr A -k Court: Reporter's Certificate 1 COURT REPORTER'S CERTIFICATE 2 STATE OF MISSISSIPPI 2 COUNTY OF JACKSON 4 I, Joy T. Young, official Court Reporter for the 5 Nineteenth Judicial Circuit Court District of the State of 6 Mississippi, do hereby certify that to the best of my skil. 7 and ability I have reported the proceedings had and done oi 8 motions in the Abrams group of consolidated asbestos cases ,9 on the 18th and 19th day of February, 1993, before Honorab 10 Kathy King Jackson, Circuit Judge for the Nineteenth 11 Judicial Circuit court District of the state of Mississipp 12 and that the above and foregoing pages contain a true, ful 13 and correct transcript of my stenographic notes and tape 14 taken in said proceedings. 15 I do further certify that my certificate annexed here 16 applies only to the original and certified transcript. Th 17 undersigned assumes no responsibility for the accuracy of 18 any reproduced copies not made under my control or 19 direction. 20 This the 22nd day of February, 1993. 21 j o y t /I Y o m , c s r fj n 22 Official Court Reporter^ Post Office Box 998 23 * Pascagoula, MS 39568-0998 24 25 26 27 28 29 301 am A -k Motions 2/19/93 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 IS 19 20 21 22 23 24 25 26 27 28 29 Your Honor. BY THE COURT: We met earlier. Hello. BY MR. WILLIAMS: Bud Shill. And Mr. Johr Stump is here behind us. BY THE COURT: Good morning. Welcome. BY MR. WILLIAMS: And, with that, I would ask for Mr. King to address the Court. BY MR. KING*. Thank you, Your Honor. Youz Honor, is certainly aware that on January the 12th before this court a motion was filed by Westinghouse asking the Court for temporary relieve for certain production of -- inadverter production of documents. And that is the subje of the matter that I'd like to take up with the court now. Your Honor, Westinghouse hereby withdraws its claim of privilege with respect t this draft twenty-two page memorandum, which I will call the draft memorandum for the purposes of our discussion today. And that is the one that was the subject of this motion that we fil on January the 12th, this was written by Westinghouse's in house counsel, Jeffrey J. Bayer. Westinghouse does -- and takes this action on the ground that the document is now i the public domain. Westinghouse also wishes tc inform the Court that there are additional privileged documents that concern the subject matter of the draft memo, which was the proposa of a document retention policy for Westinghouse 301783  . a. Motions 2/19/93 industrial hygiene department, which I '11 call the industrial hygiene, Westinghouse believes 3 that any waiver of privilege with respect to tj 4 draft .memorandum does not waive the privilege 5 with respect to these other privileged document 6 However, in the interest of making all 7 information relating to the document retention 8 program for the industrial hygiene department 9 fully available to the Court and to the 10 plaintiffs, Westinghouse hereby agrees to waive 11 its claim of privilege with respect to all 12 documents related to the formulation of this 13 proposal. Those documents are being located ai 14 will currently -- excuse me -- and will shortly 15 be available to plaintiffs' counsel. You shoul 16 be aware, Your Honor, and the record should be 17 clear that Westinghouse's waiver of privilege : 18 expressly limited to these other privileged 19 documents only and is hot a waiver with respect 2 0 to other privileged documents whether such 21 documents are related to the industrial hygiene 22 matters, document retention in general, or any 23 other matters. 'In waiving its privilege with 24 respect to these documents, Your Honor, 25 Westinghouse in no way concedes the relevance c 26 these documents to any proceeding, including 27 these actions in which Westinghouse is a party. 28 To the contrary, Westinghouse believes that the 29 industrial hygiene document retention proposal 301784 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 in fact irrelevant for several reasons, includj that, so far as Westinghouse has been able to determine, the proposal itself was never implemented. At the appropriate time, Westinghouse will fully brief and present evidence demonstrating the lack of relevance ol the industrial hygiene document retention progr proposal and the documents related to it. Consequently, Your Honor, we have then, therefore, withdrawn the motion that was filed before you on January 12th and I believe that that issue is now moot before the Court. We wi comply with the statement that I've just made t the Court in due course and will discuss that with the plaintiffs' counsel to make sure that that's done on an appropriate basis. I am here to make that representation to the Court. In addition to that, one of the issues that has be before the court this morning is the issue as i relates to, or matters as they relate to the privilege law. Hr. Shill, whom was just introduced to Your Honor will speak to that in more detail. But our position on that, Your Honor, was outlined in a letter which was delivered to plaintiffs' counsel yesterday, yesterday evening I believe, in which we outlin a number of matters regarding the privilege log and this morning delivered, both to Your Honor and to plaintiffs' counsel, a new privilege log 301785 Ek -s Motions 2/19/93 that was redrafted based on the old. And that 2 document itself we believe more fully clarifies 3 the nature of the privilege discussions within 4 each of those documents listed on those sheets. 5 And because of its voluminous nature, we would 6 suggest as a method for handling this that the 7 plaintiffs undertake a review of that, given tf 8 broadened nature of the description of those 9 documents, let us know exactly what they do war 10 to have the Court take a look at, if that's wtu 11 is involved, because we believe that a 12 significant portion of those documents really 13 have absolutely no relevance to these issues at 14 all. And that if there are issues that we are 15 not able to work out with plaintiffs' counsel 16 with regard to matters on those privilege logs, 17 then we would be glad to sit down, not only anc 18 work with them, but if they have to come before 19 the court, we will make ourselves available, h 20 Shill will come back down if that's what's 21 necessary. Whatever we have to do to reach a 22 resolution on that, we are prepared to work wit 23 Now, having made those statements to the Court, 24 we would believe that the matters of substance 25 that are before the court this morning with 26 regard to those two motions can be adequately 27 addressed and have been before you, and issues 28 that relate to them we should be able to work c 29 with Mr. Mot'ley and his compatriots on the BRADLEY & MERRELL c/o JONES, JONES, CLOSE & BROWN, CHARTERED Seventh Floor -- Bank of Amrica Plaza 3 0 0 South Fourth Street Las Vegas, Nevada 8 9 1 0 1 -6 0 2 6 (702) 385-4202 MESSAGE FROM XEROX 7 0 2 4 : (702) 385-1655 DATE: July 14, 1993 TO: Konrad L. Cailteaux, Esq. FAX#: (212) 3 1 0 -8 0 0 7 OR (212) 735-4657 PHONE #: (212) 31 0-8 000 FROM: Bradley & Merrell CLIENT/MATTER: Nevada Power v. Monsanto, et al. CLIENT/MATTER NO.: 11927.2 DOCUMENT(S) DESCRIPTION: Letter, Table of Contents, documents re: today's conference call NUMBER OF PAGES (including cover page): Eleven (11) MESSAGE: THIS TELECOPY IS INTENDED ONLY FORTHE ADDRESSEE NAMED ABOVE. IT 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 ANYONE. THANK YOU FOR YOUR ASSISTANCE. IF YOU EXPERIENCE PROBLEMS W ITH THIS TRANSMISSION, please call (702) 3 8 5 -4 2 0 2 and ask for: Randy Andreini, Ext. 615 -t.^ r BRADLEY & MERRELL C/O JO N E S , JO N E S , CLOSE & BR O W N , CHARTERED S e ve n th Floor -- B ank o f A m e ric a Plaza 3 0 0 South Fourth S tree t Lua VaQas, N e v e tle 8 9 1 0 1 --8 0 3 6 <702 3 8 8 -4 -2 0 2 MESSAQE FHOMI ZK R O Z 7034-= (70a> 3BB-1BBB DATE: J u ly 1-4-, 1 9 9 3 TO: K onrad L. C a llte a u x , Esq. FAX # : (2121 3 1 0 - 8 0 0 7 QR (2 1 2 ) 7 3 6 -4 B5 7 PHONE: (212) 3 1 0 -8 0 0 0 FROM : B ra d le y -St h i or re II CLIENT/M ATTER: N evada P o w e r v. M o n s a n to , a t al. CUEIMT/MATTER N O .: 1 1927.2 DOCUMENT(S) DESCRIPTION: c on fere nce call Le tte r, Table o f C o n te n ts , d o c u m e n ts re: to d a y 's NUM BER OF PAGES (In c lu d in g c o v e r p a ge) : E leven (1 1 ) MESSAGE: TDAWMUIDYNTCIOOLNYITcMIoDLrtrNDltOoIPAmE1tS.i.IxTAcYNkODpUDoHOw laNVyOIrToMDwCITOBHaViECMdSInNTAiMTm>E mTTUIMLIKmICMaOrFmOYsniMJntAUmTaanUirMOm.HT,IOTPmAUNaYMyOBcNoENn.tTTaVHiYnAiNUNKSFYO1DHMUMMLAPDtOItMAoTNTIOTLOHYATAYMTIwt6wlTitATiNUCrBInW.mg, IF Y O U EXPERIENCE PROBLEMS W IT H T H IS T R A N S M IS S IO N , please call (7 0 2 ) 3 8 5 -4 2 0 2 and s s k fo r: Randy A n d re ln l, Ext. 9 1 5 TRANSMISSION REPORT THIS DOCUMENT WAS CONFIRMED (REDUCED SAMPLE ABOVE - SEE DETAILS BELOW) ** COUNT ** TOTAL PAGES SCANNED : 11 TOTAL PAGES CONFIRMED : 11 *** SEND *** No. REMOTE STATION START TIME DURATION tfPAGES MODE RESULTS 1 ARVIN MASKIN 7-14-83 9:55AM 4*01" 11/ 11 EC COMPLETED 9600 TOTAL 0 :04-101 " 11 NOTE: No. OPERAT1ON NUMBER 48 4800BPS SELECTED EC ERROR CORRECT C2 G2 COMMUNICATION PD POLLED BY REMOTE SF STORE & FORWARD R] RELAY INITIATE RS RELAY STATION MB SEND TO MAILBOX PG POLLING A REMOTE MP MULTI-POLLING RM RECEIVE TO MEMORY BRADLEY & MERRELL JONES, JONES, CLOSE & BROWN, CHARTERED Seventh Floor -- Bank of America Plaza 3 0 0 South Fourth Street Las Vegas, Nevada 8 9 1 0 1 -6 0 2 6 (702) 385-4202 MESSAGE FROM XEROX 7 0 2 4 : (702) 385-1655 DATE: July 14, 1993. TO: David C. Kiernan, Esq. c/o Sharon Price FAX #: (202) 434-5029 PHONE #: (202) 434-5 843 FROM: Pau) E. Merrell, Esq. CLIENT/MATTER: Nevada Power v. Monsanto CLIENT/MATTER NO.: 11927.2 DOCUMENT(S) DESCRIPTION: Letter, Table of Contents, documents re: today's conference call NUMBER OF PAGES (including cover page): Eleven (11) MESSAGE: THIS TELECOPY IS INTENDED ONLY FORTHE ADDRESSEE NAMED ABOVE. IT 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 ANYONE. THANK YOU FOR YOUR ASSISTANCE. IF YOU EXPERIENCE PROBLEMS WITH THIS TRANSMISSION, please call (702) 3 8 5 -4 2 0 2 and ask for: Randy Andreini, Ext. 615 BRADLEY & MERRELL c/o JONES, JONES, CLOSE & BROWN, CHARTERED Seventh Floor -- Bank of America Plaza 30 0 South Fourth Street Las Vegas, Nevada 8 9 1 0 1 -6 0 2 6 (702) 385-4202 MESSAGE FROM XEROX 7 0 2 4 : (702) 385-1 655 DATE: 0 ^ / f , / ? ? j TO: Konrad L. Cailteaux, Esq. FAX #: (212) 310-8516 PHONE #: (212) 3 1 0 -8 9 0 4 FROM: fhuA CLIENT/MATTER: Nevada Power v. Monsanto, et al. CLIENT/MATTER NO.: 11927.2 DOCUMENT(S) DESCRIPTION: Jj NUMBER OF PAGES (including cover page): MESSAGE: THIS TELECOPY IS INTENDED ONLY FOR THE ADDRESSEE NAMED ABOVE. IT 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 ANYONE. THANK YOU FOR YOUR ASSISTANCE. IF YOU EXPERIENCE PROBLEMS WITH THIS TRANSMISSION, please call (702) 385-4202 and ask for: Randy Andreini, Ext. 615