Document YD85yGx3dDvwwgNBmoNJK01Oy

119 1 IN THE COURT OF COMMON PLEAS 2 PHILADELPHIA COUNTY, PENNSYLVANIA 3 4 SAMUEL ALSTON JANUARY TERM, 1988 5 VS . 6 SEPTA, et al. 7 NO. 5475 8 January 30, 1990 9 1 0 Continued oral deposition of THOMAS M. 1 1 BISTLINE, held in the offices of Kohn, Savett, Klein 1 2 Si Graf, P.C., 24 0 0 One Reading Centex', 1101 Market 13 Street, Philadelphia, Pennsylvania 19107 commencing 1 4 at 11:00 a.m., on the above date, before Harvey 1 5 Krauss, a Registered Professional Reporter and a 16 Notary Public of the Commonwealth of Pennsylvania. 17 18 19 20 21 22 KRAUSS, KATZ & ACKERMAN, INC. Legal Support Services 23 4th Floor, Robinson Building 42 South 15th Street 24 Philadelphia, Pennsylvania 19102-2242 (215) 988-9191 i i i I i J j t ! i ; i ! KRAUSS, KATZ Si ACKERMAN, INC. WATER PCB-00047898 120 1 2 KOHN, SAVETT, KLEIN & GRAF, P.C. BY : JOSEPH C. KOHN, ESQUIRE 3 2400 One Reading Center 1101 Market Street 4 Philadelphia, Pennsylvania 19107 Counsel for the Plaintiff 5 GILDA L. KRAMER, ESQUIRE 6 Suite 1015 1411 Walnut Street 7 Philadelphia, Pennsylvania 19102 Couns el for Plaintiff 8 MARGOLIS, EDELSTEIN, SCHERLIS, SAROWITZ & 9 KRAEMER BY: JAMIE L. SHELLER, ESQUIRE 1 0 Third Floor, 1315 Walnut Street Philadelphia, Pennsylvania 19107 1 1 Counsel for Amtrak 1 2 WHITE AND WILLIAMS BY : MICHAEL H. MALIN, ESQUIRE 13 and JAMES D. SHOMPER, JR., ESQUIRE 1 4 1234 Market Street Philadelphia, Pennsylvania 19107 1 5 Counsel for Monsanto 16 PEPPER, HAMILTON & SCHEETZ BY : COLLEEN F. COONELLY, ESQUIRE 17 3000 Two Logan Square 18th and Arch Streets 18 Philadelphia, Pennsylvania 19103 Counsel for Conrail 19 20 21 22 23 24 fcro&ncc *7 c. t mn WATER PCB-00047899 12 1 1 APPEARANCES (CONT.) : 2 BLANK, ROME, COMISKY & McCAULEY BY: ROGER F. COX, ESQUIRE 3 Four Penn Center Philadelphia, Pennsylvania 19103 4 Counsel for Penn Central and Septa 5 LIEBERT, SHORT & HIRSHLAND BY : STEPHEN M . McMANUS, ESQUIRE 6 1200, One Franklin Plaza Philadelphia, Pennsylvania 19103 7 Counsel for Additional Defendant General Electric Company 8 CITY OF PHILADELPHIA 9 BY : ROBERT A. SUTTON, ESQUIRE 15th Floor, Municipal Services Building 10 Philadelphia, Pennsylvania 19102 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I/DHTCC v* * m *7 e* n pi/pdu ji m run WATER PCB-00047900 1 2 INDEX 3 WITNESS PAGE NO. 4 Thomas M. Bistline 5 By Mr. Kohn 123, 224 6 By Mr. Maiin 223 7 8 9 10 1 1 EXHIBITS 12 NO . DESCRIPTION PAGE NO. 13 14 Exhibit 4 Document 224 15 Exhibit 5 Document 223 16 17 18 19 20 21 22 23 24 122 KRAUSS. KATZ ACKERMAN . TMT . WATER PCB-00047901 123 1 THOMAS M. BISTLINE, after having 2 been previously sworn, was examined and 3 testified as follows: 4 5 EXAMINATION 6 7 BY MR. KOHN: 8 Q. This deposition is being continued 9 pursuant to the order of the court after the last 1 0 session . 11 Mr. Bistline, have you undertaken any 1 2 preparation since this deposition began on January 13 4th, with respect to the subject matter of the 14 deposition? 15 MR. MALIN : I object. I'd like you 16 to define what you believe the subject matter of the 17 deposition is. 18 BY MR. KOHN: 1 9 Q. Have you done anything since January 4th 20 to prepare for your deposition today? 21 A. Yes, I did, Mr. Kohn . I reviewed a copy 22 of Monsanto's response to plaintiff's first set of 23 document requests. 24 Q. Anything else? (M? jIK? c. irruDHin tmiWATER PCB-00047902 124 1 A . Other than conferring with counsel, no. 2 Q. When did you review the response to the 3 document request? 4 A . Yes. 5 Q 6 counsel? All right. And when did you confer with 7 A . Yes . 8 Q . How much time did you spend reviewing 9 the document request? 10 A . Half an hour. 1 1 Q How much time did you spend conferring 1 2 with counsel? 1 3 A . Possibly an hour. 14 Q Which counsel did you confer with? 15 A . Mr . Ma1in. 16 Q. Anyone else? 1 7 A . No . 18 Q Did you speak to anyone else in your 19 office, on your staff in connection with preparing 20 for the deposition today? 2 1 A . No . 22 Q All right. I have placed before you 23 what was marked at the last deposition as Exhibit 3, 24 and ask you if you could turn to Page 6 of that WATER PCB-00047903 Bistline 125 1 exhibit. 2 A. Yes. 3 Q. Document request number 4, which appears 4 on the page requests, "All documents sent or 5 received by you, to or from any purchaser or 6 consumer of your PCB products relating to the 7 effects or uses of PCBs." 8 And the response to that request 9 states, among other things that Monsanto objects on 1 0 the grounds that it is quote, "unduly burdensome," 1 1 close quote . 1 2 Why, is responding to that document 1 3 request unduly burdensome? 1 4 MR. MALIN : I'm objecting to that 1 5 question. I am directing the witness not to answer 16 i t . 17 Request number 4 is not one of the 18 requests that is in issue in this case, with respect 19 to burdensomeness. Those are limited to those which 20 are subject to your motion to compel. Accordingly, 21 the question is irrelevant to the issues that are 22 before us at this time, and I direct the witness not 23 to answer 24 BY MR. KOHN : KRAnsq ff A T 7 C IflfPIBM AM TMP WATER PCB-00047904 Bistline 126 1 Q. I take it, just so the record is clear, 2 that you are going to follow the instructions of 3 your counsel each time instructing you not to 4 answer, so I don't have to ask you if you're going 5 to follow the instruction. 6 A . That's correct. Yes. 7 Q. Turn to the next page of Exhibit 3. 8 A . All right. 9 Q. Request 5 refers to quote, "All copies 1 0 of scientific or medical literature, journals, 1 1 articles or treatises which refer or relate to 1 2 PCBs," close quote. 13 To your knowledge, does Monsanto 1 4 maintain a file of scientific or medical literature 15 or journals relating to PCBs? 1 6 MR. MALIN : D-0lnT"t answer that 17 ques tion. 18 A . Yes. 19 Q. And do you know where that file is 20 maintained? 21 A . At our world headquarters in St. Louis. 22 Q. Is it maintained in a particular 23 department or unit in Monsanto's world headquarters? 24 A. Yes . WATER PCB-00047905 Bis tline 127 1 Q. Which department or unit? 2 A. I believe the name of the department is 3 the environmental policy staff. 4 Q. That's a department separate from the 5 legal department? 6 A. Yes. 7 Q. Who is currently in charge of that 8 department? 9 A. Well, let me ask you to clarify that, at 1 0 which level, because it's a fairly extensive 1 1 department. 12 Q. I'm not quite sure what you mean by 13 which level. Who has ultimate responsibility? 1 4 A. Ultimate responsibility for that 15 department is vested in the vice president, whose 16 name is Harold Corbett. 17 Q. What is his job title? 18 A. Senior vice president for environmental 19 policy, I believe. 20 Q. Is there an individual or group of 21 individuals that are responsible for retaining the 22 literature file within that department? 23 A. Specifically regarding PCBs? 24 Q. Yes, correct. epincc V Ti W7 C. J P 1/ P D U R M tmh WATER PCB-00047906 Bis tline 128 1 A . Yes . 2 Q. And do you know who that individual or 3 individuals are? 4 A . Yes. I know who has custody of that. 5 Q. 6 please? And can you identify that person for us. 7 A. The person's name is Dr. Robert Kaley. 8 Q. And do you know how long he's been 9 employed by Monsanto? 1 0 A. Oh, I believe since 1973. 1 1 Q. All right. Do you know for what period 1 2 of time he has had responsibility for maintaining 13 the scientific literature file with respect to PCBs? 1 4 A. It would be since, I would guess, 1985. 15 It may be 1986, but I'm not sure. '85 or '86, 16 sometime in that time frame. 17 Q. All right. Do you know whether the 18 scientific literature file under his authority is 19 indexed or computerized, in any way? 20 A. There is a computer index for that file. 21 yes . 22 Q. And can you describe what information is 23 contained on that computer index? 24 A. I'd like to confer with my counsel for a KRAUSS. KATZ & ACKERMAN. INC. WATER PCB-00047907 Bistline 129 1 moment. 2 MR. KOHN: We have a continuing 3 objection to any conferences while questions are 4 pending. 5 (Whereupon, a discussion was held off 6 the record.) 7 MR. MALIN : Objection and I'm 8 directing the witness not to answer, inasmuch as . 9 that is subject to the work product of counsel 10 rather than having been developed in conjunction 1 1 with counsel. I direct the witness not to answer 1 2 that ques tion. 13 BY MR. KOHN: 14 Q. Do you know when the computer index of 15 the scientific literature was developed? 16 A. Initially, in '85 or '86, when Dr. Kaley 17 took charge of that. 18 Q. And who worked on developing the 19 computer index? 20 A. A number of people, Mr. Kohn. 21 Dr. Kaley, of course, being one of 22 them . 23 And several attorneys from Monsanto 24 Company . HTC C* V T\ W7 c H/T/CDMUT T AT r> WATER PCB-00047908 Bistline 130 1 Q. Can you identify the attorneys ? 2 A. Well, I was one of them. And, I'm not 3 sure I can identify all of them. 4 Mr . David Moore. Mr. Joseph Nassif. 5 Mr. Gerard Davidson. 6 There may have been others, but those 7 are the ones I can recall right now. 8 Q. What litigation was that computer index 9 developed in connection with? 10 A. PCB litigation. 11 Q . Which PCB litigation? 1 2 A. Well, there were many cases pending, at 13 that time. It was designed -- that data base was 1 4 designed to provide support to counsel litigating 15 PCB cases for Monsanto. Access restricted to 16 counsel and those directed by counsel. 17 Q. Dr. Kaley does not have access to that 18 index? 19 A . At my request he accesses , yes . 20 Q He only accesses it if you request that 21 can access? 22 A . I or counsel. 23 Q Dr. Kaley is not a lawyer. is he ? 24 A . No, he's not. I7DH1CC \ rt\r? c A p t/ r n m s m T HT /-* WATER PCB-00047909 Bis tline 13 1 1 Q. What specific role did you play in 2 connection with the development of the computer 3 index of the scientific 1iterature file? 4 A. I reviewed a suggested protocol for 5 development of the data base, and made suggestions 6 as to how I felt it should be designed. 7 Q. Who prepared the suggested protocol that 8 you reviewed? 9 A. It was a cooperative effort among 1 0 several people. 1 1 Specifically, Mr. Moore, Mr. Davidson 1 2 and Dr. Kaley. 1 3 Q. All right. Can one access the 1 4 information in the computer file by the author of 1 5 the literature? 16 MR. MALIN: Hold on. 17 Excuse me. 1 8 (Whereupon, a discussion was held off 19 the record.) 20 MR. MALIN: I'm objecting and direct 21 the witness not to answer, inasmuch as the 22 information with respect to how the information is 23 accessed in a data base, which is the subject of the 24 lawyer work product is privileged and the witness rrn n pj * rJ* v* v* % a WATER PCB-00047910 Bistline 132 1 need not answer that question. So, I, therefore, 2 direct him not to answer. 3 BY MR. KOHN: 4 Q. The hard copies of the scientific 5 literature, is that actually within this 6 environmental policy staff department? 7 A. Yes . 8 Q. Are the articles also under full text 9 input or have they been input into a computer? 10 A. The articles are not in full text, no. 11 Q. All right. Do you have any 12 unders tanding as to how this universe of articles 13 was initially gathered or collected? 14 A. Yes. 15 Q. And, can you describe how they were 16 gathered? 17 A. In very general terms, the articles were 18 gathered with an eye toward what we believed, as 19 counsel repres enting Monsanto, as advised by 20 scientific consultants, would be the articles which 21 are most relevant to the issues we face in PCB 22 litigation. Those were the articles that then were 23 captured from the scientific literature and which 24 comprise that data base. KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047911 Bistline 133 1 Q. Does Monsanto maintain some other 2 collection of scientific literature, greater than 3 the information which is in that particular data 4 base? 5 A. I'm a little confused by what you mean 6 greater than, Mr. Kohn. 7 Q. Articles that are not included in this 8 data base. 9 A. Yes. Certainly. 1 0 Q. Where is that literature kept 1 1 physically? 12 A. We have many collections of scientific 13 literature, Mr. Kohn, that have nothing to do with 1 4 PCBs that are housed at various sites within the 1 5 company. 16 Q. Do you have any scientific literature 1 7 which does relate to PCBs which is not included in 10 that data base? 19 A. There are undoubtedly articles relating 20 to PCBs, in various libraries, scientific libraries 21 in the company . 22 However, none of those libraries 23 specifically is designed to acquire and keep that 24 literature. Their inclusion would be more KRATISS . KAT7. R infEBMlM t wr WATER PCB-00047912 Bis 11ine 134 1 incidental than anything else. 2 Q. Getting back, then, to the data base 3 under the control of the environmental policy 4 staff. 5 A. Well I object to that characterization, 6 because it's not under the control of the 7 environmental policy staff. 8 Q . Okay. The data base which is physically 9 housed within the environmental policy staff 1 0 department, does that data base contain unpublished 11 articles and studies as well as published ones ? 12 MR. MALIN : Hold on. 1 3 (Whereupon, a discussion was held off 14 the record.) 1 5 A. Can I just ask for a clarification on 16 that? 1 7 Q. Certainly . 18 A. The term published or unpub 1is hed 19 statements is used in different contexts, and I'm 20 not quite sure what context you mean that in. 21 Q. How many different contexts do you use 22 those terms? 23 A. Well, I would unders tand it in at least 24 two dif ferent ones; first, being whether the article WATER PCB-00047913 Bistline 135 1 has appeared in peer reviewed scientific 2 literature. That's one instance in which I've heard 3 the term published use. Another sense in which I 4 have heard the term published used is in reference 5 to something which is available to the public. 6 Although, perhaps, not published by major scientific 7 publication or something like that. An example of 8 that would be government documents. 9 Q. Those are two. Excuse me. 1 0 A. Right. If you could clarify it for me, 1 1 or perhaps you have another meaning for the term 12 "published" that I am not aware of, but I need to 13 understand what you mean before I could answer that 14 question. 15 Q. I understand that. So the two examples 16 you gave me are examples of terms that are 17 publis hed? 18 A. Publicly available, yes. And published 19 in that sense, yes. 20 Q. Does the data base of scientific 21 articles contain some articles which have not been 22 peer reviewed in scientific literature? 23 MR. MALIN : Hold on . 24 (Whereupon, a discussion was held off WATER PCB-00047914 Bistline 136 1 the record.) 2 MR. MALIN : The witness may answer 3 that ques tion. 4 A. Does the data base contain articles that 5 have not been peer reviewed in scientific 6 1iterature? 7 Q. Yes. 8 A. The answer is, yes. 9 Q. And does the data base contain materials 1 0 which are not otherwise available to the public, 1 1 such as the governmental documents that you 12 mentioned? 13 A. To my knowledge, no. 1 4 MR. MALIN: Object to the form of 1 5 that question. Otherwise available to the public. 16 Government documents are otherwise available to the 17 public . 18 Q. That's right. I was using that as an 19 example of documents which are available to the 20 public . 21 To your knowledge, does that data 22 base contain documents which are not available to 23 the public? 24 A. To my knowledge, no. 7DH1CC V * rp *7 C H ri/PDU * M T M /"* WATER PCB-00047915 Bis 11ine 137 1 Q. All right. Does the computer index give 2 one the ability to access the list by the subject 3 matter of the article? 4 MR. MALIN: I object to that question 5 for the same reasons I referred to earlier. 6 That's subject to the work product 7 privilege. 8 Q. Can you access the file by the date of 9 the article? 1 0 MR. MALIN : Same objection . 1 1 Q. Can you describe the type of software 12 that this index is recorded on? 13 MR. MALIN : Hold on. 14 (Whereupon, a discussion was held off 15 the record.) 16 MR. MALIN: The witness may answer 17 that, if he knows. 18 A. I believe the name of the software is 19 Basis, Mr. Kohn. 20 Q. Do you know the type of computer that is 21 used in that department? 22 A. It's an IBM computer. 23 Q . A mainframe or smaller computer? 24 A. I believe the data for this data base is 7DH1CC V 71 rp *7 c SP7POUSM -rut/-* WATER PCB-00047916 Bistline 138 1 recorded on the mainframe. 2 Q. All right. Has the identity or the fact 3 that that computer index exists ever been disclosed 4 in any other litigation involving PCBs, that you're 5 aware of? 6 A . I don't know the answer to that. 7 Q You don't know whether or not the index 8 itself has been produced in any other litigation? 9 A . I'm quite certain the index has not been 1 0 produced. 11 Q. Has anyone, other than an employee of 1 2 Monsanto, ever seen a copy of that index? 13 A. Well, counsel for Monsanto have seen 14 it. Other than that, other than those involved with 15 defense of PCB litigation for Monsanto, no. 16 Q. Have any scientific experts or 17 consultants ever seen that index? 18 A. I'm not sure, but if any had seen it, 19 they would have been retained in connection with the 20 defense of PCB litigation for Monsanto. 21 Q. Does Monsanto maintain similar indexes 22 for chemicals other than PCBs? 23 MR. MALIN : Hold on. 24 (Whereupon, a discussion was held off tro n nee w s m n1 c t vr r* WATER PCB-00047917 Bistline 139 1 the record.) 2 MR. MALIN: I object and direct the 3 witness not to answer. That's not relevant here or 4 to any issue that's currently before the court on 5 this motion. 6 MR. KOHN: Well, what we're trying to 7 get at is if the index is prepared in a similar way 8 or using the same type of software for other 9 instances that have been produced, then it may be 1 0 that this one must be produced as well. 1 1 MR. MALIN: That's very attenuated, 12 so attenuated I'm going to stick with the objection 13 and direct the witness not to answer. 14 Q. Is there a partial text of the 15 scientific literature or a synopsis of the 16 scientific literature maintained in the computer 17 bank? 18 MR . MALIN: Hold on. 19 (Whereupon, a discussion was held off 20 the record.) 21 MR . MALIN : The witness may ans wer 22 the gues tion. 23 A. 'm sorry. Could I have that question 24 back again, please. tr D n n e e t/ s m ? r n t/ n nw * m tm/^ WATER PCB-00047918 Bis tline 140 1 (Whereupon, the above portion of the 2 notes of testimony was read by the court reporter.) 3 A. By that I assume you mean, is there a 4 summary of the article? 5 Q . Right. 6 A. I can't recall whether there is or not. 7 There may be, but I'm not sure. 8 Q. All right. Do you know physically how 9 big an area this collection of scientific articles 10 encompas s es ? 1 1 A. I'm not sure I could answer that. There 1 2 are several large file cabinets. That's about as 13 good as I can do right now. 1 4 Q. Do you have any objection if someone 15 from our office came and looked at those several 16 file cabinets of articles? 17 A. I certainly would. 18 Q. If you continue through Exhibit Number 3 19 on Page 7, request number 6 quote, "All summaries, 20 lists, compilations or schedules of litigation in 21 which you have been a party in the use or effects of 22 PCBs were an issue." 23 Monsanto's response states, "Monsanto ' 24 objects on the ground that the request is, quote, i j 7D1HCC If A fp 7 C TMn WATER PCB-00047919 Bistline 14 1 1 'unduly burdensome,' close quote. 2 Can you tell me why it is burdensome 3 to comply with Request Number 6? 4 MR. MALIN: First, I object and I 5 direct the witness not to answer. Request Number 6 6 is not one of the requests that are in issue in this 7 litigation, and the question is not proper with 8 respect to any of the other requests which are at 9 issue. 1 0 And, accordingly, I direct the 1 1 witness not to answer the question. 7, 8, 9, 11 and 12 14, this is not the case. 13 MR, KOHN: Request Number 7 refers 14 back to Request Number 6, with respect to all 15 litigations identified therein. That's why, I 16 think, we're entitled to an answer to that. 17 MR. MALIN: We have produced for you 18 all of the PCB litigation to which Monsanto is now a 19 party or ever was a party. 20 MR. KOHN: That's right. I wanted to 21 get to how burdonsome it was. 22 MR. MALIN: Limited to dielectric 23 fluids, which are an issue in this case. 24 MR . KOHN: What I want to get a t is H'D HT CC ir a it* n c 7* n v T? n M A M T M /I WATER PCB-00047920 Bistline 142 1 how tough it was to pull that list together. 2 MR. MALIN : The list we already had 3 given you. 4 MR. KOHN : Yes. 5 MR . MALIN: How tough it was to pull 6 that list together? 7 MR. KOHN: Right. 8 MR. MALIN : Since we've already 9 produced that list, it's not relevant to any issue 1 0 that's currently before the court on any of these 1 1 motions. We've already given you the list. 12 MR. KOHN: It's relevant to the good 13 faith of the burdensomeness objection. 1 4 MR. MALIN : Well -- 15 MR. KOHN: Which was asserted to this 16 request . 17 MR. MALIN: The objection stands. 18 The direction stands. 19 MR. KOHN: I ask the court reporter 20 to mark as the next numbered Bistline exhibit, a 21 document that has the heading, "Lawsuits Served on 22 Monsanto Involving Polychlorinated Biphenyls 23 Manufactured for use in Dielectric Fluids. 24 (Marked as Exhibit Number 4 for KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047921 Bistline 143 1 identification) 2 BY MR. KOHN: 3 Q. I place before you Bistline Exhibit 4. 4 Have you ever seen that document before today? 5 A . I have seen this list before, yes. 6 Q Do you know where this list was typed? 7 A . Where it was typed? 8 Q Yes, or printed. 9 MR. MALIN: I object to the form of 1 0 that question as vague. Where, what building it was 11 typed in, what building of Monsanto? 12 MR. KOHN: Yes. Let's start with 13 that . 14 A. I am uncertain, Mr. Kohn, this was typed 15 by a secretary in the law department or, perhaps, 16 one of Mr. Malin's clerical employees. 17 Q. Do you know from what source this list 18 was compiled? 19 A. Several sources. 20 Q. What were those sources? 21 A. Chiefly, files maintained, case files 22 maintained by the Monsanto law department on 23 litigation, PCB related litigation. I believe, some 24 of the cases were identified through a review of KRAUSS. KATZ & ACKERMAN. INC. WATER PCB-00047922 Bis tline 144 1 documents which were on the business document data 2 base. 3 Q. What -- 4 A . I'm sorry. 5 Q. Excuse me. Go ahead. 6 A. No . Go ahead. 7 Q. What do you mean by the business 8 document data base? 9 A. The document data base about which I 1 0 testified at the last session of my deposition. 1 1 Q. Were there lists in existence prior to 12 this list which were used in preparation of Exhibit 13 Number 4? 14 MR. MALIN: I'll object to that 15 question as vague. I don't understand. If you 16 think you understand the question, you may answer 17 it. I don't think I understand it. 18 A, Well, I understand you to ask whether 19 there was another list of cases from which this was 20 drawn . 21 Q. Or that was used in any way in 22 connection with the preparation of this list. 23 A. The answer is, yes. This is an 24 evergreen list, and we attempt to keep it current. KRAUSS. KATZ ACKERM&N _ TNC . WATER PCB-00047923 Bistline 145 1 Q. And who has responsibility for 2 maintaining the list from which this list was 3 prepared? 4 A. Ultimately I guess I do. 5 Q. Is there anyone who has more hands-on 6 responsibility for keeping that list up-to-date? 7 A. David Moore. Who is a lawyer for 8 Monsanto. 9 Q. Now, this document bears the title, 10 lawsuits filed, et cetera, with respect to 1 1 polychlorinated biphenyls manufactured for use in 12 dielectric fluids. Is there a list of litigation 13 involving PCBs and Monsanto for use in something 14 other than dielectric fluids? 15 MR. MALIN: Hold on . 16 (Whereupon, a discussion was held off 1 7 the record.) 18 MR. MALIN: The witness may answer 19 that ques tion. 20 A. Yes, there is. 21 Q. What other uses of PCBs are there which 22 have resulted in litigation? 23 MR. MALIN: Well, I'll object to that 24 question as phrased. KRAUSS, KATZ & ACKERMAN. INC. WATER PCB-00047924 Bis tline 146 1 If the witness thinks he understands 2 that, he may answer it. 3 A. I'm not sure I can catalogue f or you all 4 of the various uses which may have resulted in 5 litigation. We do have PCB-related litigation 6 pending against Monsanto that does not relate to 7 dielectric fluid. 8 As best I can recall, at present, the 9 other uses that may involve litigation would be uses 10 of hydraulic fluid or heat transfer fluid. 1 1 There have been some cases involving 12 use of PCBs in recycled oil. Other than that, 13 nothing suggests itself to me at the moment. 14 Q. Do you know approximately how many cases 1 5 there are involving the use of PCBs that was 16 originally manufactured for use in hydraulic fluid? 17 A . Offhand, I don ' t, Mr. Kohn. 18 Q. Do you know how many cases there are 19 involving the heat transfer fluid? 20 A. Again, offhand, I don't know. 21 Q. How about for the recycled oil? 22 A. Again, I don't know that number. 23 Q. Do you know, approximately, whether the 24 number is greater than or less than the number of vd a mec r/urni? r/1 BA WATER PCB-00047925 Bistline 147 1 cases 1is ted in Exhibit Number 4 ? 2 A. It would be less. 3 Q. Less for all three of those categories? 4 A . That's correct. 5 Q. All right. Do you know how many hours 6 it took to compile Bistline Exhibit Number 4? 7 A. This list, Mr. Kohn, is the result of a 8 large amount of work that has gone on for an 9 extensive period of time. 1 0 I couldn't quantify it for you 1 1 precisely in hours, how long it took originally to 12 cons titute the first list. But, it took a t least 13 two -- at least three people, excuse me, about a 14 month of checking through old files, to constitute 15 the first list. 16 Q. All right. When was the first list 17 constituted? 18 A. My best recollection is 1985. 19 Q. After that work was done back in 1985, 20 leaving that work aside, do you know how long it 2 1 took to put together Bistline Exhibit Number 4, from 22 the work that had already been done before this case 23 was ever started? 24 MR. MALIN : I object to that KRAUSS , KATZ S. ACKERMAN . INC . WATER PCB-00047926 Bistline 148 1 question. I think it's almost unanswerable. 2 You had asked for an amalgamation of 3 apparently, of time both before and after this case 4 was started, despite the fact that it appears to 5 attempt to create a dichotomy. I don't know if 6 that's possible. If the witness thinks that's 7 possible, I suppose he can attempt to answer it. 8 A . I can't answer the quest ion . I don't 9 know . 1 0 Q . Was Bistline Exhibit 4 prepared 1 1 especially for this litigation? 12 A . This particular litigation? 13 Q Right, this particular list. 14 A . Yes . 1 5 Q. And, from the first time that someone 16 was given the responsibility to prepare this list 17 for the Paoli case, do you know how much time was 18 spent preparing this list? 19 A . No, I don't. 20 Q Continuing over to Page 8 of Exhibit 21 Number 3 . Before the Request Number 7 is the 22 statement. quote "Without waving its objections. 23 Monsanto refers plaintiffs to the list of all 24 lawsuits regarding PCBs as a component of dielectric srp&ncc Tf C P r/ r n w n M -r *t /** WATER PCB-00047927 Bistline 149 1 fluids to which Monsanto has been or is a party 2 which it previously produced in response to 3 plaintiffs' first request for production of 4 documents. Request Number 10 in Williams v. Septa, 5 et al, "and the case numbers." That document was 6 not produced in the Williams case; am I correct? 7 MR. MALIN: We've already made that 8 clear to you, Mr. Kohn, that's an error. We thought 9 we had produced it because, there was a request, but 1 0 apparently because of an order issued by Judge 11 Kelly, it wasn't necessary to develop it and to 12 produce it. So, that's an error of counsel, and not 13 the witness. 1 4 BY MR. KOHN: 15 Q. Is there any procedure in place to 16 update Bistline Exhibit Number 4 to make sure that 17 it continues to contain all lawsuits involving 18 Monsanto and dielectric fluids and PCBs? 19 A. I'm not sure I would describe it with 20 the term so official as a procedure, Mr. Kohn. But, 21 it is a responsibility of mine and Mr. Moore's, to 22 make certain that we have an accurate count of -- an 23 accurate hold on litigation currently pending, and 24 as new cases come in they are added to the list. jounce V S IT* 7 r* r/ t? r ii kt *t* f** WATER PCB-00047928 Bis 11ine 150 1 Q. Request Number 7 seeks with respect to 2 all the litigation also identified in response to 3 Request Number 6 certain information. 4 Do you believe it is burdensome to 5 comply with producing the documents requested in 6 Request Number 7? 7 MR. MALIN : Mr. Kohn, the witness has 8 testified extensively with respect to what is 9 involved in the production of those particular 10 documents, what is involved what will be necessary 1 1 to do. The question has been asked and answered. 12 MR. KOHN: I thought we didn't cover 13 any information about the request at issue the last 14 time. I must be mistaken. 15 MR . MALIN : I'll permit the witness 16 to ans wer it. 17 A. Your question was, do I believe it's 18 burdensome for us to comply with this request? 19 Q Yes . 20 A. I do believe it is, sir. 21 Q. And can you tell me why it is burdensome 22 to comply with that request? 23 A. The request as phrased, sir, requires 24 Monsanto to dig back through all of its case files, | J : i ; IfUHTCC XT KW *7 C. nr* 7UOMUT T Kin WATER PCB-00047929 Bistline 151 1 to obtain at least seven different categories of 2 documents or information. There are a large number 3 of cases, as you can see from the list that we've 4 provided you with. The case files are extensive. 5 It would require a great deal of time and effort by 6 paralegal and clerical employees of Monsanto simply 7 to locate all of the various categories of 8 information you've asked for. 9 Further, to the extent that we don't 1 0 have in a Monsanto case file the information you 1 1 request, it may be, although I'm not conceding that 1 2 I do, but it may be that I have an obligation to go 13 further and check back with outside counsel who 1 4 represented us in those cases to determine whether 1 5 that information is available in counsel's file. 16 Again, that is a burdon, cost and expense to the 17 company . 18 Q. Have you made any attempt to calculate 19 how much time is involved in complying with Request 20 Number 7 ? 21 A. Only in a general sense. In that it was 22 part of the total number of hours that I submitted 23 in my affidavit to the court. 24 Q. But, you don't know what part of that ! { KRAOSS. ff IT? arVRPMlM t wr WATER PCB-00047930 Bis tline 152 1 total this request makes up? 2 A. Specifically, no. It would be many, 3 many hours of effort. 4 Q. Where are the case files in Monsanto's 5 possession housed? 6 MR. MALIN: Mr. Kohn, I believe you 7 asked that question previously. 8 However, I'll permit the witness to 9 answer it again. 1 0 A. Well, in at least two locations at 11 Monsanto, that I am aware of, Mr. Kohn. There is 12 both the law department's active case file, which is 13 physically housed in the same building that I work 1 4 in at Monsanto. And then there is our file storage 15 facility, which is not on the campus. It's at an 16 off-site warehouse. 17 Q. Physically, how much area do the active 18 case files take up? 1 9 A. An area of at least -- let me see if my 20 math is any good. Approximately, 2500 square feet, 21 just for the physical files. 22 Q. They're located in one room? 23 A. The active case files, yes. 24 Q. One file storage room? kr a riss ST a m 7 Z inrCDMlH t Mr* WATER PCB-00047931 Bistline 153 1 A. Yes. 2 Q. Is there a file clerk or c1erks who are 3 assigned responsibility for that room? 4 A. Yes. 5 Q . And ifsomebodywants a file they can 6 ask the clerk and the clerk gets the file for them? 7 A. Yes. 8 Q. How many fileclerks are as signed to 9 that room? 10 A . Two. 11 Q. That's their whole job a t Monsanto to 1 2 work in that room and get files for people? 13 A . No . 14 Q. What other jobs do they have? 15 A. They are what I would describe as 16 general purpose clerical employees who have a number 17 of other functions besides tracing down files. 18 Q. What other functions do they have that 19 you're aware of? 20 A. General clerical work, sir. 21 Q. Request subpart C ofRequest Number 7 22 asks for all transcripts of depositions taken in any 23 of those cases. 24 Does Monsanto maintain any separate f/OHTCC TS * m *7 c t \t /* WATER PCB-00047932 Bis tline 154 1 filing system with respect to deposition 2 transcripts? In other words, are depositions cross- 3 filed somewhere other than in their individual case 4 file? 5 A. Well, the answer is yes and no. 6 We have no master deposition file. 7 Q. What is the yes part? 8 A. For certain individuals, an ef fort has 9 been made to collect their deposition transcripts. 1 0 Q. Do you know how many such individuals 11 that effort has been made? 12 A . No . 1 3 MR. MALIN: Just a moment. 14 (Whereupon, a discussion was held off 1 5 the record.) 16 MR. MALIN: Go ahead. 17 BY MR. KOHN: 18 Q. And the names of any such individuals? 1 9 MR. MALIN: Object, and direct the 20 witness not to answer, unless it's limited to the 21 Papageorge deposition, which is an issue in this 22 case or the Papageorge depositions. 23 Q. Do you know whether such a file has been 24 maintained for Mr. Papageorge? KRAUSS. KATZ fi ACKERMAM . TMf. WATER PCB-00047933 Bistline 155 1 A. I believe we have most of the 2 depositions that Mr. Papageorge has given in 3 connection with PCBs. 4 Q. Where physically are those deposition 5 transcripts kept? 6 A. In the building which houses the 7 document archive. 8 Q. Do you know how many separate 9 litigations Mr. Papageorge has given testimony, 1 0 deposition testimony? 11 A . PCB cases? 12 Q PC B cases, yes 13 A . Between 15 and 20 . 1 4 Q All right. Is there an index or listing 15 the cases in which Mr . Papageorge has given 16 deposition testimony involving PCBs which is 17 maintained in any computer of any kind? 18 MR. MALIN: Don't answer that 19 question yet. 20 (Whereupon, a discussion was held off 21 the record.) 22 MR. MALIN: The witness may answer 23 that question. 24 A. I don ' t know. KRAUSS . KATZ ACKERMAN. TNC . WATER PCB-00047934 Bis tline 156 1 Q. All right. Are the individuals for whom 2 a separate deposition file has been created only 3 employees of Monsanto or are there other people not 4 employed by Monsanto who have given depositions in 5 PCB cases and a separate file has been created for 6 them? 7 MR. MALIN: You may answer that 8 question. 9 A. The deposition file is not restricted to 10 Monsanto employees. 11 Q. To your knowledge, are there any 1 2 independent or so-called independent inspections or 13 expert's depositions maintained in these separate 14 files? 15 A. There are some. 16 Q. Do you know the identity of those 17 scientists or experts? 18 MR. MALIN: Hold on. Don't answer 19 that yet. 20 I object and I direct the witness not 21 to answer. It's not relevant here. It doesn't have 22 anything to do with the Papageorge transcript, and 23 it indicates the work product and thinking of 24 counsel with respect to its strategy there. l/OUTCC tmn WATER PCB-00047935 Bis 11ine 157 1 MR . KOHN : I think -- 2 MR . MALIN : And it's an 3 identification of those people. 4 MR . KOHN : I think as your co-counsel 5 has pointed out to you. we have requested not only 6 in C but request all transcripts of depositions 7 taken in these cases, but subpart G specifically 8 requests expert deposition transcripts. So, in 9 light of that, we would request that you reconsider 10 your objection . 1 1 (Whereupon, a discussion was held off 12 the record.) 13 MR. MALIN: Answer the ques tion with 14 respect to whether or not such an index actually 15 exists, and no further. 16 A. I have to ask you the question again, 17 because I thought you already asked that question. 18 Q. My question is, do you know the names of 19 any of these experts or scientists for whom a 20 separate deposition file has been created? 21 MR. MALIN : Well, I object . I direct 22 the witness not to answer that. 23 Q. Could you then answer Mr. Malin's 24 question with respect as to whether an index exists tf'DATTCC & fT* *7 C. HpyPDMlM T M /* WATER PCB-00047936 Bistline 158 1 of the names of people who have a separate 2 deposition file? 3 A. Yes, there is such an index, yes. 4 Q. And, who created that index? 5 A. I believe Miss Hurley did. 6 Q. Miss Hurley is someone on your staff? 7 A. Yes. Miss Hurley is a legal assistant 8 who works for me. 9 Q. She is not an attorney? 1 0 A. No, she is not. She is a legal 1 1 assistant . 12 Q. When was the last time you saw a copy of 13 that list? 14 A. Oh, I can't recall specifically. Within 15 the last several months. 16 Q. All right. And you can't recall any 17 names on it other than Mr. Papageorge? 18 MR. MALIN : I object and direct him 19 not to answer with respect to any other names on the 20 list. He's said such a list exists. 21 BY MR. KOHN: 22 Q. Subpart D of Request Number 7 asks for 23 all trial transcripts in the cases involving PCBs . 24 Does Monsanto maintain any sort of i KR A nss FT A T 7 Z irifUBMlM T Mr WATER PCB-00047937 Bis tline 159 1 separate file similar to the deposition files of 2 trial transcripts? 3 A. I don't think so. I'm not positive, but 4 I don't believe we do. 5 Q. All right. Do you know approximately 6 how many of the cases on Bistline Exhibit Number 4 7 have gone to trial? 8 A. Let me look. 9 MR. MALIN: Could we have a more 1 0 concrete definition of what you mean by "trial"? Do 11 you mean, did they go to a summary judgment or did 1 2 they go to a verdict or directed verdict? Did the 13 trial actually start? 1 4 MR. KOHN: Trial actually started. 15 A. Okay. Hell, let me just check the list 16 here. 17 Q. All right. 18 A. I'm not sure. I don't recall. 19 On page 5. 20 Q. Right. 21 A. The last entry on the page, David J. 22 Cito, et al versus Monsanto Company. 23 Q. Yes. That was a case that did go trial? 24 A. That case did go totrial. KRAUSS, KATZ & ACKERMAN . INC. WATER PCB-00047938 Bistline 160 1 Q. Do you know what the outcome of that 2 trial was ? 3 A. The trial court directed a verdict in 4 Monsanto's favor during the first week of 5 plaintif f ' s evidence. 6 Q Ha s that directed verdict tes ted on 7 appeal, do you know? 8 A . Yes , it was. 9 Q. And do you know what the result of the 1 0 appeal was? 11 A . The directed verdict was uphe1d. 12 Q. 13 now? All right. Has that case been concluded 14 A . Yes . 15 Q. All right. 16 A . Over on top of page 6, the first entry. 17 City of Bloomington versus Westinghouse, et al . 18 Q Yes. 19 A . I believe, on page 9 , approximately 20 halfway down the page, Barry Friedman , et al . , 21 versus F . E . Myers Company. That case was tried. 22 Q. All right. Do you know the result of 23 that case? 24 A. I believe a verdict was returned against zr n a m r> r* r/n mrj t, /-* rr m t"j ft a n T XT /-- WATER PCB-00047939 Bistline 161 1 F.E. Myers and Company, but not against Monsanto or 2 General Electric. 3 MR. MALIN: There was a directed 4 verdict in favor of Monsanto Company and General 5 Electric at the close of the plaintiff's evidence. 6 THE WITNESS: You're correct, Mr. 7 Malin. Thank you . 8 MR. MALIN: I as sume the witness does 9 not have to answer with respect to those cases in 1 0 the Federal Court in which Monsanto and other 11 defendants obtained a summary judgment in which 12 you're now going to appeal to the Third District, 13 which you are counsel, and, therefore, of which you 1 4 are aware. 15 MR . KOHN : That ' s right. I'm just 16 asking for cases in which there was a trial. My 17 understanding is a summary judgment is not a trial 18 MR . MALIN : All right. 19 MR . KOHN : All right. 20 MR . KOHN : Or rather, should not be 21 trial. 22 A. On page 18. 23 Q. All right. 24 A. Cecil Scott, et a 1. , versus Monsanto vr n r*r r r rr * m n WATER PCB-00047940 Bistline 162 1 Company. 2 Eight of the plaintiffs in that case 3 had their cases tried. 4 And the juries returned a verdict in 5 Monsanto's favor, which was upheld by the Fifth 6 Circuit. 7 Q. Any other cases on the list that have 8 gone to trial? 9 A. Just let me finish it here. 10 Over on page 19, the case entitled 11 Tanaka Brothers Farms versus Monsanto was, I 1 2 believe, Mr. Kohn, tried jointly with the Cito case. 13 They were related actions. 14 Q. All right. 15 A. And my bestrecollection is, they were 16 tried together. Either they were tried together or, 17 Tanaka had previously been dismissed. I just don't 18 recall which, as I sit here. 19 Q. Your recollection is, the results of the 20 Tanaka was the same as the result in the Cito case? 21 A. Yes. 22 Q. All right. 23 A. My best recollectionis that those were 24 the cases that were taken to trial. l K'a'T'7 c. a rifmM a m tmc WATER PCB-00047941 Bistline 163 1 Q. Do you know if the cases that involved 2 PCBs and the other types of fluids, the hydraulic 3 fluids, recycled oil, do you know whether any of 4 those cases have gone to trial? 5 MR. MALIN : Hold on. 6 (Whereupon, a discussion was held off 7 the record.) 8 MR . MALIN: The witness may answer 9 thequestion. 1 0 A. Yes. 11 Q. Do you know approximately how many of 12 those cases have gone to trial? 13 A. My best recollection is that there have 14 been two other cases which have gone to trial. 15 Q. And do you know the name and the court 16 ofthosecases? 17 A. I don't recall the name of the case. 18 But, there was a case tried in New Hampshire. 19 Q. In the local court or in the Federal 20 court? 21 A. I'm not even sure of that. It was back 22 in the late 1970s. 23 And, all I know is the case was 24 tried, and I'm not sure what court it was in. i j | ! J I i J zr ri * h r* r* r/ m n r> t i- n * t WATER PCB-00047942 Bis tline 164 1 Q. All right. 2 A. Then, in addition, there was a case that 3 involved the use of PCBs as an ingredient in silo 4 coating, which is a category that I had forgot when 5 I was talking earlier. That went to trial in state 6 court in Michigan, although what county, I can't 7 recall. The name of the case was Haley versus 8 Monsanto. 9 Q. As you sit here today, do you recall the 1 0 outcome of either of those cases? 1 1 A. In the New Hampshire case, my 12 recollection is that a verdict was returned against 13 Monsanto, although I don't know the amount. 1 4 And in Haley, I believe a verdict was 1 5 also returned against Monsanto. But, again, I can't 16 recall the amount. 1 7 Q, Well, this Bistline-4, without asking 18 you the current status of every case on this list, 19 is there some summary or index or list that you have 20 available to you, that would give you the current 21 status of all of these cases? 22 A. Yes. 23 Q. Does that list have a name of any kind? 24 A. I call it the case status list. KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047943 Bis 11ine 165 1 Q. And is that a list for all PCB cases not 2 just the dielectric fluid cases? 3 A. That's correct. 4 Q. Is that list generated by a computer? 5 , MR. MALIN: I object to that. 6 The list generated by a computer, the 7 computer has to have input. The question really 8 doesn't have much meaning. If you think you 9 understand that question, Mr. Bistline, you can 1 0 answer. 1 1 A. I'm not sure, because it's a list that's 12 prepared by outside counsel. I'm not sure whether 13 it's on computer or not. 14 Q . I s ee. 15 And you receive some sort of hard 16 copy of that list periodically? 17 A. Yes. Can we take a two-minute break? 18 Q . Yes. 19 (Whereupon, a short recess was then 20 taken . ) 2 1 BY MR. KOHN: 22 Q. Is that the list youreceived from 23 outside counsel? 24 A. That's correct. if p i n q q tr & t ? c irifPPMiM nir WATER PCB-00047944 Bistline 166 1 Q. Which outside counsel? 2 A. Mr. David Moore. 3 Q. And what office is he with? 4 A. His law firm is the Smith, Helms, Mul1is 5 and Moore, a firm in Greensboro, North Carolina. 6 Q. All right. And does that firm have a 7 general supervisory role in connection with all PCB 8 litigation? 9 MR. MALIN : Hold on. 10 (Whereupon, a discussion was held off 1 1 the record.) 1 2 MR. MALIN: I'm going to object to 13 that as irrelevant. And I direct the witness not to 1 4 answer. 15 BY MR, KOHN: 16 Q. Are any personnel of that firm used in 1 7 connection with production of documents in PCB 18 cases? 19 MR. MALIN: Hold on. 20 (Whereupon, a discussion was held off 21 the record.) 22 MR. MALIN: I'm objecting and direct 23 the witness not to answer on the same basis. 24 BY MR. KOHN: KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047945 Bistline 167 1 Q. Subpart F of Request Number 7 seeks all 2 documents produced by you in those cases which refer 3 or relate to the use or effects of PCB. 4 Monsanto maintains a list or index or 5 schedule of the documents it has produced in other 6 cases; is that correct? 7 A. I'm not certain that such a list exists 8 for all documents that have been produced in such 9 other cases. 10 Q. Does such a list exist for some cases? 1 1 A. Yes . 12 Q. Do you know how much cases exists? 13 A. Do I know how many cases are on the 14 list? 15 Q. Yes. 16 A. The answer is no, I don't. 17 Q. Does Monsanto also have a practice of 1 8 physically segregating in a separate file the 19 document it has produced in any PCB litigation? 20 A. Such a file is created, but it's not 2 1 necessarily maintained. 22 Q. All right. What is your practice or 23 procedure with respect to when the file is no longer 24 maintained? i | j j KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047946 Bistline 168 1 MR. MALIN: Hold on. 2 (Whereupon, a discussion was held off 3 the record.) 4 MR. MALINs I'm going to object and 5 direct the witness not to answer on the basis that I 6 don't understand what the question means with 7 respect to when it is maintained, or if the witness 8 understands, and the question is, understanding with 9 respect to what the word "maintained" means. So, I 10 would request that, Mr. Kohn, you clarify what you 11 mean by "maintained." 12 BY MR. KOHN; 13 Q. Let me ask you this. Is it Monsanto's 14 practice to maintain a separate file the documents 15 it has produced in a case during the pendency of 16 that case? 17 A. Sometimes, yes, and sometimes, no. 18 Q. And can you tell us on what basis the 19 list or the segregation of the documents is 20 sometimes accomplished and sometimes not 21 accomplished? 22 MR. MALIN: Hold on. 23 (Whereupon, a discussion was held off 24 the record.) tr n a rt r? r rr m nr a ^ n nn WATER PCB-00047947 Bis 11ine 169 1 MR . KOHN : Wait f or your reply. 2 MR . MALIN : You may answer the 3 question. 4 A. Thank you. 5 The baseline is a judgment that I 6 make about the individual case. 7 Q. As you sit here today, do you have any 8 way to tell me of the cases listed on Bistline 9 Exhibit 4, whether you have a separate file of the 1 0 documents Monsanto has produced in those cases? 1 1 A. Without making an inquiry of my staff, I 1 2 don't have any basis, no. 13 Q. In those instances in which a separate 14 file of the documents produced is maintained, 5 physically where is that file kept? 16 A. It would be kept in the same location 17 where the other documents are kept. 18 Q. That is in the 2500 square foot file 19 room? 20 A. No. That was the active case file. 2 1 The documents are housed in another 22 building, and it's in that other building where 23 these files of documents may be kept. 24 Q. Is that the same on-site storage WATER PCB-00047948 Bistline 170 1 facility we talked about, or is this now a third 2 building? 3 A. This is not the off-site storage 4 facility. It is another building on the Monsanto 5 campus in St. Louis, that houses the document 6 archive. 7 Q. Does that building have a name? 8 A. I believe we call it "N" as in Nancy 9 building. 1 0 Q. And is that building simply a document 1 1 archive? 12 A . No . 13 Q. Now, subpart G of Request Number 7 asks 14 in addition to the deposition transcripts of experts 15 the, quote, "reports," close quote, of experts. 16 Does Monsanto maintain a separate segregated file of 17 expert reports rendered either on behalf of 18 plaintiffs or on behalf of Monsanto or other 19 defendants in PCB cases? 20 MR. MALIN: Hold on. 21 (Whereupon, a discussion was held off 22 the record.) 23 MR . MALIN The witness may answer 24 the ques tion. fi TT(?C? rr * m * n n s ts WATER PCB-00047949 Bis 11ine 171 1 A . No . 2 Q. Do you maintain any sort of file with 3 respect to experts or potential experts in the field 4 of PCBs? 5 MR. MALIN: Wait. Don't answer that. 6 With respect to potential experts, I direct the 7 witness not to answer that, because that's not 8 within the ambit of Request Number 7. And it's not 9 relevant here. 1 0 The witness may answer any other 11 remainder of that question. 12 THE WITNESS: Could I have it back, 13 please . 1 4 (Whereupon, the above portion of the 15 notes of testimony was read by the court reporter.) 16 A. Yes . 17 Q. And, what information or types of 18 information are contained in that file? 19 MR. MALIN : Well, hold it. 20 (Whereupon, a discussion was held off 21 the record.) 22 MR. MALIN: I direct the witness not 23 to answer that question on the grounds of utter 24 irrelevancy on the issue here. Also, a work-product if u i n c c 1^ A ^7 C APT/rDMAM t mn WATER PCB-00047950 Bistline 172 1 privilege which attaches to the selection of what is 2 in those files and who is in those files. 3 BY MR. KOHNs 4 Q. 5 files? What documents are kept in these expert 6 MR. MALIN: Well, that's objected to. 7 and I direct the witness not to answer, work-product 8 privilege. 9 Q. Where are these files - 10 MR. MALIN: As well a s irrelevancy. 11 Q. Where are these files physically kept? 12 A . In the "N " building. 13 Q. And, who is involved in determining what 14 documents are placed in those files? 15 A . Well, I am. And, other counsel 16 representing Monsanto. 17 Q. Anyone else? 18 A . Anyone other than -- 19 Q. Other than the people you had already 20 mentioned 21 A . No . 22 Q. Do you make a practice of keeping 23 affidavits or opinions rendered in other cases in 24 thosefiles? FC R A H S S v a T 7 C. arVFDMSM T Mr* WATER PCB-00047951 Bistline 173 1 MR. MALIN: Hold on. 2 (Whereupon, a discussion was held off 3 the record.) 4 MR. MALIN: I object on the grounds 5 that these files constitute work-product. Selection 6 of information going into them constitutes work- 7 product, and the witness is not required to answer. 8 I direct him not to do so. 9 BY MR. KOHN: 1 0 Q. Do you know physically how much room 1 1 these expert files occupy in the "N" building? 12 A. No, I don't have an estimate on that. 13 Q Do any of your outside experts or 14 consultants have access to those files? 15 A . No . 16 Q. What are the files used for? 17 A . The defense of litigation. 18 Q . How are they used in defense of 19 litigation? 20 MR. MALIN: Hold on. I object. 21 Directthewitnessnottoanswer. 22 BY MR. KOHN: 23 Q. Continuing on top of page 9 of Bistline 24 Exhibit Number 3 - 7 i 7 0 JHCC yuniT r t vr /- WATER PCB-00047952 Bistline 174 1 A. Yes. 2 Q. -- is the statement quote, "In addition, 3 in many if not most instances the documents 4 requested in sub-parts e, f and g, are subject to 5 protective orders issued by the relevant court which 6 restrict the use and disclosure of such documents," 7 close quote. 8 Do you know how many of the cases 9 listed on Bistline-4, are subject to protective 1 0 orders ? 1 1 A. Offhand, Mr. Kohn, I don't know. 12 Q. Do you maintain a separate index or 13 listing of cases in which protective orders have 14 been is s ued? 15 A. I believe we have such a list. 16 Q. What leads you to believe you have such 1 7 a list? 18 A. Well, the fact that I have asked for it 19 to be created. 20 Q. Do you recall when you asked for it to 21 be created? 22 A. Oh, approximately, 18 months ago, I 23 believe. 24 Q. Do you maintain physically a separate vp a ncc if it1? c ar'viroM&M t Mr> WATER PCB-00047953 Bis 11ine 175 1 file of all the protective orders segregated from 2 the other files? ' 3 A . That I don't know. 4 Q. Did you provide any information with 5 respect to the last four lines of the response to 6 Request Number 7 that make reference to these 7 protective orders? 8 (Whereupon, a discussion was held off 9 the record.) 10 MR. MALIN : The witness may answer 1 1 the question. 12 A. Did I provide Mr. Malin any information 13 with respect to, what was it, the last four lines in 14 our response to Number 7? 1 5 Q. Correct. 16 A. Yes, I did. 17 Q. And do you recall what information you 18 provided him? 19 A. I advised himthat theprotective orders 20 were outstanding in several cases that I had 21 specific recollection of and asked him to consult 22 further with Mr. Moore. 23 Q. Do you knowwhether those protective 24 orders are, in fact, stipulations of the parties or KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047954 Bistline 176 1 whether they were orders rendered as a result of 2 litigation? 3 MR. MALIN : I object to that. I 4 don't understand it. If you think you can 5 understand it in the context of what you know about 6 it, you may answer it, Mr. Bistline. 7 A. My recollection, Mr. Kohn, is that the 8 protective orders that I recall, are court orders. 9 Q. And were those orders rendered as a 10 result of a contested motion with respect to the 1 1 issuance of the protective orders or whether they 1 2 were rendered as a result of an agreement or 13 stipulation of the parties, if you know? 14 A. I would say both, depending upon the 15 case. 16 Q. Are you aware of any order that 17 restricts Monsanto's right to produce its own 18 documents ? 19 A. I am aware that by its terms or by 20 reading of their terms, some, at least, of those 21 orders, would restrict Monsanto from producing 22 documents in response to a demand; for example, that 23 we produce all the documents we produced in the 24 Cecil Scott case. That, I believe, would run afoul ii I I KRAUSS. KATZ & ACKERMAN. TNC. WATER PCB-00047955 Bistline 177 1 of that protective order. 2 Q. With respect - 3 A. However, I would -- if I could just 4 complete the answer. 5 Q. Sure, please. A. Those orders would not prevent us from 6 7 producing documents properly discoverable in 8 response to an appropriate discovery demand simply 9 because they were produced in the Scott or other . 1 0 case. 1 1 Q. Is the provision of the Scott order that 1 2 restricts Monsanto's ability to produce all 1 3 documents produced in the Scott case apply to the 1 4 records of theindividual plaintiffs in that case 15 whichMonsanto had in its possession? 16 MR. MALIN: Hold on. 1 7 (Whereupon, a discussion was held off 18 the record . ) 19 MR. KOHN: With respect to those 20 conferences, I only object to the extent the witness 2 1 is consulting with counsel during a question. I 22 have no objection to the lawyers talking to each 23 other. Just note that. 24 MR. MALIN: Mr. Kohn, the protective j ! | i! ! | i i j ! j ! i j j 1 I i i ! i : ; , ; : ! KRAUSS. KATZ & ACKERMAN . TNC. WATER PCB-00047956 Bistline 178 1 order in the Scott case, I believe, should speak for 2 itself. I think you have a copy of it. 3 And, therefore, I see no need for you 4 to question the witness about it, unless you're 5 going to ask the witness what his understanding of 6 it is . 7 If you don't have a copy of it, I 8 presume a copy could be produced for you. But I 9 thought you had a copy of it at the last session. 1 0 MR. KOHN : I think we do. We had 1 1 some other documents from the Scott case. We didn't 1 2 have a copy of that order right here. I think we 13 did, as Miss Kramer reminded me, we did ask for it 1 4 at that session. So, if there wouldn't be any 15 trouble, if you could send us a copy, we would 16 appreciate it. 17 MR. MALIN: We'll consider that. 1 8 BY MR. KOHN: 19 Q. Have any of the documents, Mr. Bistline, 20 to your knowledge, which was subject to a protective 21 order in one case, produced in other litigation? 22 MR. MALIN: Well, I object to the 23 question as unduly broad, unduly vague. Unless Mr. 24 Bistline has some specific recollections, I'm going j II i ! j Ii j KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047957 Bistline 179 1 to direct him not to answer that question. ,l 2 I think it's also very far afield and 3 very attenuated from the issues that are before us 4 at the moment. 5 BY MR. KOHN: 6 Q. Are the confidentiality orders, that 7 you're aware of, or the protective orders limited to 8 exposure of bona fide trade secrets of Monsanto? 9 A. They are in some instances. 1 0 Q. And some instances they are broader than 1 1 simply limited totrade secrets? 1 2 A. That's correct. 13 Q. What other areas or subjects or purposes 1 4 are the orders in place, otherthan protection of 1 5 trade secrets? 1 6 A. We have in some cases, what I would term 17 blanket protective orders, which cover all discovery 18 responses. 19 Q. What is the purpose of that order of a 20 blanket protective order? 21 MR. MALIN: I object to that. That 22 is very attenuated and very far afield, and has 23 nothing to do with any of the issues that are before 24 us here. ' i | i ] 5 j 1 j j ! i i j j I i : K R a n c; q K'hrP7 z a rvucM a m t Mr WATER PCB-00047958 Bistline 180 1 Blanket protective order in other 2 cases, what their purpose and how many cases there 3 are, I direct the witness not to answer. 4 Hold on . 5 (Whereupon, a discussion was held off 6 the record . ) 7 MR. KOHN: To the extent there has 8 been an objection to producing documents in our 9 cases because there are protective orders in other 1 0 cases, I'm trying to probe whether there is any 1 1 legitimate interest that the company has in 12 protecting the confidentiality of those documents, 13 if there's a blanket protective order. I'm trying 14 to get at what interest the company has in 15 protecting the information which is the subject of 16 that order. 17 (Witness conferring withcounsel.) 18 MR. MALIN: Well, the interest is not 1 9 to violate the court order, amongst other things. 20 MR. KOHN: In the cases? 21 MR. MALIN: The objection stands. 22 BY MR. KOHN: 23 Q. In the cases where there is a blanket 24 protective order, did the plaintiffs request a j i , j j ; ! ! j j ! j j ! i ! l I j , j 1 : ' pr p ancc 7 a fp 7 r. AfiruoMHi t Mr* WATER PCB-00047959 Bistline 181 1 blanket protective order or did Monsanto? 2 MR. MALIN : I object to that. I 3 direct you not to answer. The same direction. 4 BY MR. KOHN: 5 Q. Have you participated in any groups or 6 seminars or symposium of people involved in the 7 industry with respect to the subject of 8 confidentiality orders or protective orders? 9 MR. MALIN: I object, direct the 1 0 witness not to answer. 1 1 Very attenuated, very far afield and 12 nothing to do with any of the issues that are before 13 us with respect to this motion to compel. 1 4 BY MR. KOHN: 1 5 Q. Your Request Number 8 refers, again, to 1 6 reports of experts or scientists or physicians. And 1 7 part of Monsanto's response to that request states, 1 8 quote, "Expert opinions from other cases are not 19 relevant nor capable of leading to relevant evidence 20 in the cases before the Court," close quote. 2 1 Do you believe that expert opinions 22 in other cases are not relevant nor capable of 23 leading to relevant evidence in the case before this 24 court? | Iij ! i ! > j ' ! KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047960 Bistline 182 1 MR. MALIN : Objection. Direct the 2 witness not to answer. 3 Q. Do you intend to seek prior opinions of 4 the experts that the plaintiffs will offer in this 5 case? 6 MR. MALIN: Objection. I direct you 7 not to answer that question. 8 I think it should be pointed out for 9 the record, that in this particular case Alston, we 1 0 have no idea what Mr. aLs ton's injuries are at this 1 1 point. What is relevant, medically what is 12 relevant, medically or any other way, for that 1 3 matter. Exposure or any other possible aspect of 1 4 this litigation. 1 5 BY MR. KOHN: 1 6 Q. Do you believe the qualification also of 1 7 an expert are relevant in the litigation? 18 MR. MALIN: Objection. Don't answer 19 that. That's irrelevant. Attenuated. 20 BY MR. KOHN: 2 1 Q. Request number 9 asks for "Transcripts 22 of depositions given by William B. Papageorge, 23 including but not limited to depositions in the 24 following actions," and then it lists a series of KRAUSS. KATZ & ACKERMAN, INC. WATER PCB-00047961 Bistline 183 1 cases . 2 Do you know whether or not the 3 depositions given by Mr. Papageorge in these listed 4 cases are maintained in the separate Papageorge 5 deposition file at Monsanto? 6 A. My best information, Mr. Kohn, is that 7 they would be, yes. 8 Q. Is it your position that it's burdensome 9 to respond to Request Number 9? 1 0 MR. MALIN : Object to that. The 1 1 objection has been made. Direct the witness not to 1 2 answer. 13 Q. How long would it take for Monsanto to 14 produce the deposition transcripts requested in 1 5 request number 9? 16 MR. MALIN: You may answer that 17 ques tion. 18 A. There would be several hours worth of 19 reviewing and copy work to be done. 20 Q. Request Number 11 on page 12 of Exhibit 21 3 asks for all documents produced by you in Scott v. 22 Monsanto and the civil number, and Monsanto objected 23 to this request, objection, amongst others that it's 24 quote, "unduly burdensome," close quote. I j I KRAUSS, KATZ S ACKERMAN . TNC . WATER PCB-00047962 Bistline 184 1 Are the documents, which were 2 produced by Monsanto in Scott v. Monsanto maintained 3 in a separate file, to your knowledge? 4 A. I don't believe we have those separately 5 maintained, Mr. Kohn. 6 Q. Is that litigation still ongoing in any 7 way, shape or form? 8 A. The claims of plaintiffs, other than the 9 eight whose caseswere tried, are still pending, 1 0 yes. 1 1 Q. All right. And you don't believe you 12 have a separate file of the document you produced in 1 3 thatlitigation? 1 4 A. I don't believe I have it in St. Louis, 15 sir. 16 Q. Where is it? 17 A. If it exists, it may be in the office of 18 outside counsel. I'mnot certain whetherhe still . 19 hasthatornot. . 20 Q. Have you asked or inquired about outside 21 counsel, the Scott counsel withrespect to 22 production of documents in their cases of those 23 documents? 24 MR. MALIN : The witness may answer ! t ! ! ' ; i j j j I j j I , iI I i i! ; i ; 1 KRAUSS. KATZ ACKERMAN. INC. WATER PCB-00047963 Bis tline 185 1 that question. 2 A . No . 3 Q. Do you have any idea how long it would 4 take outside counsel, if he had such documents 5 segregated, to make them available to the plaintiffs 6 in thiscas e? 7 A. I really don't, Mr. Kohn. 8 Q. Does Monsanto maintain an index or 9 schedule or lists of the documents produced to the 1 0 plaintiffs in the Scott case? j I j i J i I ! 1 | j i i 1 1 A. I believe we have such a list, yes. j 1 2 Q. And does that list correspond to, in 1 13 some way, to the computer data base of documents the ' 1 4 so-called business document data base? 1 5 MR. MALIN: Object. Direct the 16 witness not to answer. Work product. 1 i j ! 17 Q. The response to Request Number 7 18 continues with the statement, "Moreover the j S i 19 requested documents are subject to a protective 20 order." 2 1 MR. MALIN: 7 or 11? 22 MR. KOHN: 11, I'm sorry. I 23 Q. The requested documents are subject to a 24 protective order issued by the court in that case. | KRAUSS. KATZ.& ACKERMAN. INC. WATER PCB-00047964 Bistline 186 1 Are all documents which were produced 2 in the Scott case subject to a protective order in 3 that case? 4 A. I believe they are. 5 Q. Is this what you are refer to as a 6 blanket protective order? 7 A. Yes, 8 Q. Request Number 12, refers to all 9 studies, tests or analysis performed by you or at 1 0 your request or direction concerning the use or 11 effects of PCB s. 1 2 A. Yes . 1 3 Q. Does Monsanto conduct or has Monsanto 1 4 ever conducted any regular tests or surveys of its 15 own employees, with respect to the use or effects of 1 6 PCBs ? 17 MR. MALIN : Object. I direct the 1 8 witness not to answer the question with respect to 1 9 Request Number 12, inasmuch as it is not one of the 20 requests which are subject to a motion to compel for 2 1 this deposition. 2 2 You are aware, Mr. Kohn, that we 23 produced in the Federal cases for you, at the order 24 of Judge Kelly in this case, all of the studies j ] j j . j I ; j l 1 ; . , i ; j l 1 i ! 1 ! KRAUSS. KATZ & ACKERMAN. INC. WATER PCB-00047965 Bistline 187 1 which we had with respect to the effects, the human 2 health effects on employees of Monsanto. And, 3 therefore, I think it's not only irrelevant to this 4 deposition but, you have that answer. 5 BY MR. KOHN: 6 Q. Does Monsanto conduct an annual medical 7 survey on its employees? 8 MR. MALIN: I direct the witness not 9 to answer. 1 0 MR. KOHN: I request all the annual 1 1 medical surveys be produced to us. 12 MR. MALIN: Well, if you put it in 1 3 the form of proper document request, we will respond 1 4 to it. 15 16 1 2 . MR. KOHN: It is in Request Number 1 7 MR. MALIN: We have responded. 1 8 BY MR. KOHN: 19 Q. Request Number 14 on page 13 of this 20 document, asks for, quote, "All documents which 21 support your contention that PCBs do not harm 22 humans," close quote. 23 Are you aware that Monsanto has made 24 that contention in this litigation. i i KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047966 Bistline 188 1 MR. MALIN : Objection. I'll object 2 and direct the witness not to answer. Monsanto in 3 this litigation, has made the contention that there 4 is no scientific evidence to support the proposition 5 that PCBs have serious adverse human health 6 effects. And that has been, of course, set forth in 7 Federal cases at length in the affidavits which were 8 filed, as well as in the scientific literature. 9 Monsanto's position is set forth in this request, 1 0 and it's set forth as it does, the fact that this 1 1 information is available in the public domain, 1 2 wherein it was produced. 1 3 BY MR. KOHN: 1 4 Q. Can you define for me, Mr. Bistline, 1 5 what is meant by the term "public domain"? 16 A. I would refer back to our discussion of 17 public literature, Mr. Kohn, and say that I 1 8 understand something to be in the public domain if 19 it's available, generally. Either published 20 scientific literature or published documents. 2 1 Q. These might be documents published from 22 any number of sources or literally around the world? 23 A. Well, the scientific literature 24 certainly is published around the world. Whether KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047967 Bistline 189 1 other documents are, possibly. 2 Q. Such as governmental bodies from other 3 countries? 4 A . Yes. 5 Q. You would include those within the 6 public domain? 7 A. I would, yes. 8 Q. DoesMonsanto make any effort or attempt 9 to monitor information as it comes into the public 1 0 domain to attempt to obtain copies of that 1 1 information with respect to PCBs? 1 2 A. Yes. 1 3 Q. And can you describe for me how you go 1 4 about monitoring that? 1 5 A. Well, we review, on a periodic basis, I 1 6 believe it's monthly, lists of newly published 17 scientific information. That is a computer service, 18 I believe, Mr. Kohn, although, I can't identify for 19 you more specifically than that at this point. It's 20 a publicly available service that I know catalogues 2 1 newly published scientific litigation, or -- excuse 22 me, 1iterature. 23 In addition, to that, we do attempt, 24 through various means, including participation in KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047968 Bistline 190 1 the group that has worked with the Environmental 2 Protection Agency, to help establish cleanup 3 standards. I believe it's called the consensus 4 group, to monitor developments in governmental 5 regulation, and the process by which governmental 6 regulations are set, both in this country and 7 elsewhere. 8 Q . Any other things that you do in an 9 attempt to monitor the state of the information in 1 0 the public domain? 1 1 A. Those are the main things. 1 2 I believe, thatjust about says it 1 3 all . 14 Q. And that's been an ongoing process for 1 5 some period of time atMonsanto? 16 A. That's correct. 1 7 Q. Do you know approximately when that 1 8 proces s began? 1 9 A. We have always felt that as a 20 manufacturer of a product, that we should be 21 familiar with developments as they occur, and I 22 would say to you, that we have made the attempt to 23 be current on developments in the medical and - 24 scientific spheres with respect to PCBs, since -- . \ ; i ! Ii | i i I J j < } j i ! j I J i | ! | t ! ] j KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047969 Bistline 19 1 1 well, since the 1930s. 2 Q. Does Monsanto get involved in any way 3 shape or form, with scientific research with respect 4 to PCBs ? 5 MR. MALIN: Hold on. 6 (Whereupon, a discussion was held off 7 the record,) 8 MR. MALIN: I object and I direct the 9 witness not to answer the question. It's irrelevant 1 0 to the issues that are before us here. 1 1 MR. KOHN : It gets back to one of the 1 2 prior requests about scientific medical literature, 13 articles, et cetera. If they are involved in some, 1 4 perhaps, ongoing research where there would be 1 5 articles that have not yet been published. Also, as 16 to whether Monsanto is privy to information in some 1 7 research that's not yet in the public domain. 18 BY MR. KOHN: 19 Q. What is the consensus group? 20 A. Well, I believe I described it for you 21 earlier. 22 It is a group of scientists, I 23 assume, they're all scientists, although. I'm not 24 sure, that have been meeting with representatives of l i I i I i j PTP PTAT7 C. TMr* WATER PCB-00047970 Bis tline 192 1 the Environmental Protection Agency, to arrive at an 2 agreement in that group which is why they call it 3 the consensus group. It's the name of hope, to 4 es tablish levels for cleanups of PCB containing 5 sites. 6 Q Does the concensus group include within 7 it the people from EPA or is the concensus group a 8 separate group that then goes and meets and confers 9 with EPA? 1 0 A . I believe EPA representatives are in the 1 1 concensus group. 12 Q. Does Monsanto have a representative or 13 representatives in that group? 1 4 A . Yes . ; j i 15 Q Who has been Monsanto's representative ; 16 or represintatives in that group? j 1 7 MR. MALIN: Hold on. j 18 I object. I direct the witness not 19 to answer it. It's irrelevant on the issues before 20 the court. 2 1 MR. KOHN: Its identity of a witness, 22 potential witness in the case. : i j 23 MR. MALIN: Well, on any of the : 24 issues here? ' KRAUSS. KATZ & ACKERMAN. TMf. WATER PCB-00047971 Bistline 193 1 MR. KOHN: Yes, on the issues of, 2 this is a deposition in the case. If you want to 3 come back every time we have a new deposition or a 4 new issue to cover, we'll do it that way. 5 I thought we ought to do it once 6 while he's here. 7 MR. MALIN: I'll let him answer that 8 ques tion. 9 A. Dr. John Craddock. 1 0 Q. What is his title or position? 1 1 A. Mr. Kohn, I don't know what his title 12 1s . 1 3 Q. Does he work in the world headquarters 14 in St. Louis? 1 5 A. Yes, he does. 16 Q. Are other representatives of industry 1 7 members of the consensus group? 1 8 A. I don't know who all is on the consensus 1 9 group, other than. Dr. -K-apa-d-o c k . Representatives of 20 EPA. And I believe, representatives of the 2 1 environmental defense fund, perhaps others, I don't 22 know. 23 Q. Who, at Monsanto, reviews the monthly 24 lists of periodicals from the computer service that iI i i i K RAUSS. KA T7 APPf'RPMlM T MT WATER PCB-00047972 Bistline 194 1 you mentioned? 2 A. I don't know who all would do that. I 3 know I do. 4 And Dr. Kaley does, for purposes of 5 our data base. 6 MR. KOHN; It's about 1:00. Why 7 don't we take a shorter lunch break. 8 (Luncheon recess was then taken.) 9 1 0 AFTERNOON SESSION. 11 1 2 BY MR. KOHN: 13 Q. Mr. Bistline, do you recall taking an 1 4 affidavit in connection with this litigation? 15 A. Yes . 16 Q. And, what role did you play in 1 7 connection with the drafting of that affidavit? 18 A. Let me see this. 19 MR. MALIN : I don't quite understand 20 that question, Mr. Kohn. 2 1 A . I'm having trouble with it, too. 22 MR. MALIN: He took? 23 A . It's my affidavit. 24 Q. Did you write the affidavit? i i i KP A TTSS K-AT7 Z APK-RRM AM TMT . WATER PCB-00047973 Bistline 195 1 A. Do you mean, did I produce the first 2 draft of the affidavit? 3 Q. Let's start with that. Did you produce 4 the first draft of the affidavit? 5 A. Frankly, I don't recall whether I did or 6 whether I requested counsel to do that for me, in 7 the first instance. 8 Q. All right. Do you recall at some time 9 reviewing a draft? 1 0 A. Yes. 1 1 Q. And that first draft that you reviewed 1 2 you don't know whether or not you drafted that or 13 whether someone at the White and Williams firm 1 4 drafted it? 1 5 A . It was drafted at White and Williams. 16 It was drafted, after consultation and discussion 1 7 More as an rs"tTcT,LTi"iil act than a creative 18 act. 19 Q. How many drafts of the affidavit did you 20 review before you signed it? 21 A. I don't recall. I believe only one. 22 But there may have been one other. 23 Q. Was the affidavit physically typed in 24 your office or was it typed at some other location? I ! i I I ancc vArn? c ApypoMUT r m /- WATER PCB-00047974 Bistline 196 1 A. I believe this was typed in my office. 2 Q. Now, do you have the affidavit in front 3 of you? 4 A. Yes, I could. 5 Q. Paragraph 4 of the affidavit states that 6 the, quote, "Personal injury/property damage cases 7 in which Monsanto was ever been a party alone would 8 encompass excess of 400 cases." 9 What other types of PCB cases has 1 0 Monsanto been involved in other than personal injury 1 1 and property damage cases? 1 2 MR. MALIN: Well, I'm going to object 1 3 on the grounds that you already asked him that 1 4 question. He's answered it. He said that those 1 5 include cleanup cases. 1 6 Those include hydraulic fluid cases. 1 7 Those include heat transfer fluid cases and silo, 18 whatever it is, silo protective coating. 1 9 A. Silo coating cases. 20 MR. MALIN: Silo coating process. I 21 believe that's been asked and answered but, you may 22 answer it again. If there is anything you have to 23 add to that answer. 24 A. No, nothing to add to what I've said i i i i ! i i ii i t KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047975 Bistline 197 1 previously. 2 Q. All right. In paragraph 4 then, you 3 meant to limit that to the dielectric fluid PCB 4 cases as opposed to the entire universe of PCB 5 cases? 6 A. No, Mr. Kohn, that wasn't the intent. 7 The intent was to describe to the court the total 8 number of cases in which allegations are made of 9 personal injury or property damage, whether or not 1 0 that, in fact, involved a PCB use as a dielectric 1 1 fluid. 12 Q. So that some of the cases you had in 13 mind in connection with this paragraph 4, would be 1 4 cases that are not contained on the list of 1 5 litigation. Exhibit 4? 16 A . Oh, yes. Oh, yes . 17 Q. How did you determine that there were 1 8 over 4500 individual plaintiffs involved in those 1 9 cases as set forth in paragraph 4 of your affidavit? 20 A. That's from data that we have compiled 2 1 with respect to cases in which we've been involved. 22 Q. You didn't, at the time you made this 23 affidavit, go back and research that information 24 originally for the first time? KRAUSS. KATZ & ACKERMAN. INC. WATER PCB-00047976 Bistline 198 1 A. I believe the number was one that was a 2 current number. 3 But, it's based on data that's been 4 compiled for some period of time. 5 Q. All right. Paragraph 5 of your 6 affidavit states, quote, "Compliance with 7 plaintiffs' request for production of documents in 8 unrelated PCB litigation," et cetera, and picks up 9 again, "would require an inordinate amount of time 1 0 and expenditure of resources on the part of Monsanto 1 1 Company as indicated below." And there's a 1 2 paragraph which continues on page 2 of the 13 affidavit. 1 4 My question is, is the information on 15 page 2 of the affidavit, related solely, to quote, 16 "compliance with plaintiffs' request for production 17 of documents in unrelated PCB litigation," close 18 quote? 19 A. Yes. 20 Q. On page 2 of the affidavit, you state 2 1 quote, "The number of pages required to comply with 22 plaintiffs' request for production of documents 23 would be in excess of 500,000 pages," close quote. 24 Am I correct, that that number i I ! !I I J ! i I KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047977 Bistline 199 1 500,000 pages was calculated by one of your legal 2 assistants through the use of the computer and other 3 indexes that she had available to her? 4 A. In the first instance, that's correct, 5 yes. 6 Q. All right. Was there some other 7 checking in the second or third instance? 8 A. Well, I believe, as I said, on the last 9 session of my deposition I did look at those and 1 0 consulted various sources to determine that that 1 1 number was accurate. 12 Q. Your affidavit then continues quote, 13 "and would require eight staff personnel to work 1 4 eight hours per day, five days per week, for at 1 5 least 120 days, or six months." 16 Could you explain how you went about 1 7 calculating that information? 18 A. That is an estimate, Mr. Kohn, based 19 upon our past experience with production of large 20 numbers of documents in PCB cases, as to what it 2 1 takes to obtain those documents, from the various 22 sources that we had to go to to obtain them, to 23 prepare them, that is, to copy them and to prepare 24 them for counsel's review in order that they might * j j 5 i j j i> 1 j ! i ; i , i i ; i| j i S 1 ; i KRAUSS , KATZ & ACKERMAN , INC. WATER PCB-00047978 Bistline 20 0 1 be put in shape to produce. 2 Q. Well, was this based on past experience 3 with respect to producing documents in unrelated PCB 4 litigation? 5 A. That was part of it, yes. . 6 Q. What other cases have you produced 7 documents from unrelated PCB litigation? 8 A. I'm not sure I understand your question, 9 sir. 1 0 Q. Well, the estimate of eight staff 1 1 personnel working eight hours a day, five days a 1 2 week for six months, you testified was based on your 13 experience over the past, past experiences. 1 4 A. That's correct. 15 Q. And in those other cases, have you 16 produced the same category or categories of 1 7 documents that plaintiffs are requesting be produced 18 inthiscase? . 19 MR. MALIN: I'm afraid I still don't 20 understand the question. 21 If the witness understands it, he may 22 answerit. 23 A. I don't believe we had ever been called 24 upon to produce physically, in fact, produce all of l ! j j | j > i 1 i ! ! J i , j i j j I j ; KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047979 Bistline 20 1 1 the various categories of documents which would be 2 required if we were to comply literally with the 3 terms of the document demand that plaintiffs served 4 upon Monsanto in this case. 5 Q. That's the document with respect to the 6 so-called unrelated PCB litigation? 7 A. Again, I'm not sure how you're using 8 that term, Mr. Kohn. 9 Q. Okay. I'm just using it as you have 1 0 used it in paragraph five of your affidavit which 1 1 states, beginning with "Compliance with plaintiffs' 1 2 request for production of documents and unrelated 13 PCB litigation," et cetera, "would require an 1 4 inordinate amount of time as set forth below." 1 5 A. That's correct. 16 Q. And then we come to the calculations of 1 7 the staff and the time. 1 8 So, it's clear, my question is 19 simply, have you ever, in your past experience, 20 produced the documents called for in plaintiffs' 2 1 request for production of documents with respect to 22 unrelated PCB litigation? 23 A. In the other cases, some of the 24 categories of documents requested here, may have KRACJSS . KATZ & ACKERMAN. INC. WATER PCB-00047980 Bistline 202 1 been produced. 2 Q. Do you know whether they have or have 3 not been? 4 A. Some documents from some of the 5 categories have been produced. 6 Whether all documents -- some 7 documents from some categories have not been 8 produced. All documents from all categories clearly 9 have not be produced. 1 0 Q. Do you know which categories of 1 1 documents have been produced in other cases? 12 A . I could only guess at this time . 13 Q Did you make any ef fort to ascertain 14 that information in connection with the preparation 15 of the affidavit in this case, that is, which of 1 6 those documents have been produced in other cases? 1 7 A. To the extent that we are talking, Mr. 18 Kohn, about documents from the business documents 19 archive that I have referred to earlier -- 20 Q. Right. 2 1 A. -- the particular category of documents 22 isn't all that relevant. The difficulty is simply 23 with the physical volume of documents that we're 24 dealing with. KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047981 Bistline 203 1 The category of documents becomes 2 important when we speak of having to go back to dead 3 files, even active case files, and take from those 4 files documents that are resident there and not 5 elsewhere. Control those and make them available 6 for production. 7 Q. In those instance where the documents 8 have been produced in other cases, I take it they 9 were reviewed before they were produced in those 1 0 cases by someone at Monsanto. 1 1 A . Yes . 1 2 Q. And the documents would have been 13 reviewed to determine whether they disclosed any 1 4 attorney-c1ient privilege or work-product privilege 1 5 before being produced in those other cases. 16 A. Certainly. 1 7 Q. All right. And they were numbered in 1 8 those cases before production? 1 9 A. They would have been, yes. That's 20 correct. 2 1 Q. When you calculated the eight people 22 working eight hours a day, five days a week for six 23 months, did you consider the fact that at least some 2 4 portions of the documents had already been reviewed | i i i i i KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047982 Bistline 204 1 by Monsanto prior to their production in other 2 cases? 3 A. Yes. 4 Q. What would the people be doing for eight 5 hours a day, five days a week for six months? 6 A. Among other things they would be 7 consulting the list of documents that were 8 identified according to our computer research as 9 potentially relevant to the obtaining of those 1 0 documents from the working archive. 1 1 Copying them, and reviewing them on a 1 2 first cut basis for counsel to review, prior to 13 final production. They would in addition, be as I 14 said before, going to dead case files and, perhaps, 15 other locations that would be required in order to 16 obtain and control those documents, which are not 1 7 covered in the document archive. That's a general 18 description. But, I think that covers most of the 1 9 activity. 20 Q. Are the documents that have been placed 2 1 on the computer base, those documentsthat have 22 previously been reviewedfor privilegematerial or 23 work-product material? 24 (Whereupon, a discussion was held off I t 1 t i j ' j I l j | 1 j t j j i j i j j ' KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047983 Bistline 205 1 the record.. ) 2 MR. MALIN: The witness has testified 3 that the computer system does not have documents on 4 it, it merely gives you categories of documents. 5 Accordingly, your question mischaracterizes his 6 prior testimony, and I direct the witness not to 7 answer any further. 8 BY MR. KOHN: 9 Q. Before a document is indexed on the 10 computer system, is that document, even though it is 1 1 not itself on the computer in its entirety, reviewed 1 2 for privilege? 1 3 A. The documents were not reviewed 1 4 individually for privilege. Certain categories of 1 5 documents were excluded from being placed on the 16 computer, because of privilege concerns. And those iw 1 7 I can generally describe as correspondence files a?nd 18 pending litigation. Other than that, my 1 9 recollection is that there was no other screening 20 doneforprivilege. 2 1 Q. Do you have some estimate as to how many 22 pages of documents your staff personnel are capable 23 of reviewing in one day? 24 A. Individually? It would depend upon the i j j j ; > : ' ; j KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047984 Bis tline 206 1 individual. 2 Again, it would depend upon 3 specifically, the review, the task being 4 accomplished. 5 If we're talking about 6 polychlorinated biphenyls going through a first cut, 7 to get things ready for outside counsel to review, 8 probably, 10 to 15,000 pages a day, on a first cut 9 basis. 1 0 Q. The affidavit goes on to state, quote, 1 1 "The cost to Monsanto would be over $100,000." 1 2 Can you explain how you calculated 13 that cost? 1 4 A. That is a rough estimate of what we 15 would have to pay the clerical and paralegal 16 personnel at Monsanto in order to, as indicated 1 7 above, get the documents ready for review by outside 18 counsel. That also includes the copying cost of the 19 documents . 20 Q. But, wouldn't the copying cost be borne 2 1 by the plaintiffs if they are obtaining a copy of 22 the document? 23 A. For that it would, yes. But, we don't 24 -- let me back up. i i KRAUSS. ff A T 7 K, IflfRPMlM T Mr WATER PCB-00047985 Bistline 207 1 The copying costs that I am referring 2 to is the cost of producing the copies of the 3 documents that my staff and outside counsel then 4 review. 5 Q. They don't review the documents that are 6 already in the files? ; i < I 7 A. No, sir. 8 Q. How much of this $100,000 figure is ! j 9 duplicating costs and how much is salaries? 10 A. I don't have any number in my head right 1 1 1 now. But, 90 percent of it, roughly, is salaries. 12 Q. The individuals you had in mind when you; 13 prepared thisaffidavit, are they alreadyemployees . 1 4 of Monsanto, or would you be hiring new additional ; \ 15 people? ` 16 A. No. These would be people who already( 1 7 work forme. 18 Q. Have there ever been cases, that you'reii 19 aware of, in which Monsanto was involved in which , 20 Monsanto produced inexcess of500,000 pages of 2 1 documents? 22 A. There's no case in which I ! i 1 i have; 23 personally been involved in which that occurred. 24 And I'm afraid I just can't speak to the others. , KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047986 Bistline 208 1 Q. What is the greatest number of pages of 2 documents, that you're aware of, that Monsanto has 3 produced in any litigation that you have been 4 involved in? 5 A . In a PCB case? 6 Q . Yes, PCBcase. 7 A. All right. Probably, on the order of 8 120 to 125,000 pages. 9 Q. And do you know how much it costs 1 0 Monsanto to produce the documents in that 1 1 litigation? 1 2 A. Not as I sit here, no. 1 3 Q. Do you know when that production was 1 4 made ? 15 A . 1985 and 1986. 16 Q Is that the Scott case? 17 A . No, sir. 1 8 Q Which case was that? 19 A . I believe, it's the Carole Whitfield 20 case. I think it's on your list. 21 Q. Maybe if you would just place Exhibit 4 22 in front of you and refer me to the case that you 23 have in mind. 24 A. All right. Ii I i j t\ | I KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047987 Bistline 209 1 MR. MALIN: Page 21. 2 A . Yes, page 21, the fifth case down from 3 the top of the page. 4 Q Carole M. Whitfield, et al. versus 5 Sangamo Wes ton , Inc. 6 A . Carole M. Whitfield, et al. versus 7 Sangamo Weston, Inc . , yes . 8 Q Is that case still pending? 9 A . No, sir. it's not. 1 0 Q Do you know what the outcome of that 1 1 cases was? 1 2 A . Yes, I do . I'm not at liberty to 1 3 disclose it, but I do know the outcome. 1 4 Q Was there a settlement in that case? 1 5 A . Yes. 16 Q 1 7 take it? And the settlement is confidential , I 1 8 A . That's correct. 19 Q All right . Turning to Exhibit Bis 11 i n e 20 3, the responses to the request for production of 2 1 documents . 22 A. Yes . 23 Q. If I can ask you to turn to page 8, 24 Request Number 7? fCRAUSS . K A T 7 ft ACKERMAN TNC. WATER PCB-00047988 Bis tline 210 1 A. Yes. 2 Q. With respect to Request Number 7A, 3 "Docket sheets." Do you know how many separate 4 documents there are that respond to that particular 5 request? 6 A. Well, taking a docket sheet as a 7 singular entity, there would be at least one, for 8 example, for each of the cases on Exhibit 4. And if 9 that were, you could assume that there is at least 1 0 one for every one of these cases that we've been 1 1 involved in, perhaps, more. Depending upon whether 1 2 the case was refiled in a different court. 1 3 Q. That would be one docket sheet for the 1 4 approximately 400 cases that are listed? 15 A. That would be one each for each of the 1 6 cases, that's correct. 1 7 Q. And that list also contains all of the 1 8 Paoli cases; am I correct? 19 A. That's correct. 20 Q. How many hours would it take to locate 2 1 or review and produce those documents? 22 A. I couldn't break it down that fine, 23 sir. 24 Q. Did you attempt to break it down that i i i i I KRAUSS. KATZ & ACKERMAN. INC. WATER PCB-00047989 Bistline 211 1 fine in preparation of your affidavit in this case? 2 A. No, sir, I didn't. 3 Q. Did you attempt to break down that file 4 with respect to any of the other subparts ofRequest 5 Number 7? 6 A. No. Not with respect to any individual 7 subpart, no. 8 Q. With respect to Request Number 9 on page 9 10, I believe we asked you about, did you attempt to 1 0 break down how long it would take to comply with 1 1 Request Number 9 in connection with the preparation 1 2 of your affidavit? 1 3 A. Not specifically Number 9. 1 4 My recollection is that I asked my 1 5 staff to estimate how long it would take to copy 1 6 deposition and trial transcripts also, that we had 1 7 readily available. I don't recall, offhand, 18 specifically how, you know, what the number was for 1 9 that particular item, now. 20 Q. What was their answer when you asked 21 them how long it would take to copy the deposition 22 and trial transcripts that you had readily 23 available? 24 A. Again, I don't know the numbers. I 5 I KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047990 Bis tline 212 1 Q. I take it it was something less than 2 this eight people, eight hours a day for six months? 3 A. You can safely say it was less than the 4 total number cited in my affidavit. 5 Q. In connection with request number 11. 6 A. Yes. 7 Q . Did you attempt to break down how long 8 it would take to comply with Request Number 7 in 9 connection with the preparation of your affidavit? 10 A. I don't think we did that separately. 1 1 In fact, I'm not sure that we even considered number 1 2 11, in the number that we have here. 13 Q. You mean, you didn't even consider 1 4 number 11 in connection with, when you say the 15 number we have here, you mean the affidavit number? 1 6 A. My best recollection is that the figures 17 cited in my affidavit did not take into account the 1 8 additional time that would be required, if we had to 1 9 go back and get all the documents from the Scott 20 case and produce those. 21 Q. Well, which of the document requests 22 that are the subject of the motion does this 23 affidavit take account of? Is it just Number 7, 24 the, all litigations identified? KRAUSS. KATZ & ACKERMAN. TNC. WATER PCB-00047991 Bistline 213 1 A. It does take into account Number 7, 2 yes. I believe Number 9 was the only one we didn't 3 really look at as to, you know, make a separate 4 es timate on. 5 My recollection is that we just, more 6 or less, assumed that it would fall in there, that 7 whatever estimate we were making for the other 8 requests, would simply be less than what the actual 9 time we would spend would be. So that I didn't feel ! J 1 0 it was necessary for us to make a separate estimate 1 1 for the Scott documents. 1 2 Q. You didn't make a separate estimate for , j i i 1 3 11, the Scott documents? 1 4 A. Ye s . 1 5 Q. You didn't make a separate estimate for 16 9, the Papageorge deposition transcript also? 1 7 A. Not specifically for the Papageorge ' j j J i| i 18 deposition transcripts, no. There were other 19 categories of documents that we were asked to 20 produce that fell within the general description of 2 1 deposition transcripts, and trial transcripts and ; 22 other materials of that sort that we had available, 23 so we didn't pull Papageorge out separately. We 24 just considered that category in general. ! i i --j pro an c c tr a 7 e. * n vcduih t M r WATER PCB-00047992 Bis tline 214 1 Q. And, you did not consider request 14, 2 the documents which support the contention that PCBs 3 do not cause harm to humans, in preparation of the 4 affidavit? 5 A. I had asked for -- excuse me. An 6 estimate for -- okay, now I recall what it was more 7 precisely . 8 In several cases, we have been asked 9 to produce, in response to discovery, a list of 1 0 scientific authorities that our experts rely on in 1 1 arriving at opinions that generally conclude that 1 2 PCBs have not been shown to cause severe adverse 1 3 human health effects, and I asked for an estimate of 1 4 the time that would be required to pull those 1 5 scientific articles and have them reproduced and 16 added in here. 1 7 Q. What was the answer to that? How long 18 would it take to produce those scientific articles? 19 A. It's about several days worth of work 2 0 for a couple of people to Xerox them up and get them 21 for produc tion. 22 Q Less than two weeks? 23 A . Probably, yes. ' 24 Q Less than one week? i KRAUSS. KATZ ACKERMAN TNT WATER PCB-00047993 Bistline 215 1 A. I don't recall. I believe it was a 2 little more. 3 Q. You recall it being that it was more 4 than a week? 5 A. I believe it was more than five days of 6 work, yes. 7 Q. Right. How long would it take to give 8 us a copy of the list of those articles that were 9 provided or prepared in the other litigation? 1 0 If if we were willing to find the 1 1 articles and all we wanted was the list, how long 1 2 would that take? 1 3 MR. MALIN: Would you restate the 1 4 question, please. 15 (Whereupon, the above portion of the 1 6 notes of testimony was read by the court reporter.) 1 7 MR. MALIN: I think the witness has 18 testified there are lists of articles that were 1 9 necessarily produced in litigation, unless I missed 20 something. 21 THE WITNESS: I did. 22 MR. MALIN: You did so testify? 23 THE WITNESS: Yes. 24 MR, MALIN: The witness may answer KRAUSS, KATZ & ACKERMAN. INC. WATER PCB-00047994 Bistline 216 1 that question. 2 A. It wouldn't take any significant amount 3 of time at all, Mr. Kohn. 4 Q. Request number B, in Bistline Exhibit 3, 5 the reports of experts, et cetera, rendered in any 6 litigation. 7 Did you - a A. Request 8, yes. 9 Q. -- estimate how long would it take to 1 0 find those reports as part of your affidavit in this 11 case? 1 2 A. Okay . 13 MR. MALIN: Just a moment. 1 4 (Whereupon, a discussion was held off 15 the record.) 16 MR. MALIN: You can answer that 1 7 question. 1 8 A. These reports all fall into two 1 9 categories the ones that we keep, generally, 20 available in the witness files. And then others 2 1 that we would have to go back through the case files 22 to find. So, I didn't have an estimate specifically 23 geared to number 8, no. 24 Q, How long would it take for the ones in i ; 1t i I i i i i ! i KRAUSS. KATZ & ACKERMAN TNfV WATER PCB-00047995 Bistline 217 1 the separate witness files? 2 A. I couldn't estimate that as a separate 3 item, Mr. Kohn. Separate from, you know, 4 reproducing and reviewing the entire witness files. 5 Q. Well, is it your testimony you do not 6 know how long or you could not estimate how long it 7 would take to pull the prior reports from the 8 pre-existing witness files, not all the other stuff 9 in the witness files, just the reports? 1 0 A . Just the reports? 1 1 Q. Just the reports. 1 2 A . I don't know how long that would take. 1 3 no, sir. I don't. 1 4 Q- And how many witness files would you 1 5 have to search to gather all this? 16 A . Several dozen 1 7 Q You think less than 50? 18 A . I'm sorry. I really don ' t know, but it 19 would be quite a few. 2 0 MR. KOHN: Let me just mark, so the 2 1 record is a little clearer, the affidavit we have 22 been referring to, which was rendered in the Alston 23 versus SEPTA case. 24 (Marked as Exhibit Number 5 for KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00047996 Bistline 218 1 identification.) 2 BY MR. KOHN: 3 Q. Well, how much stuff would you have to 4 wade through in these witness files to get to the 5 report or reports? 6 A.- I'm unwilling, on the basis of 7 objections previously articulated, to specify for 8 you all the kinds of material that are in these 9 files. So, I'm going to respectfully decline to 1 0 answer that. 1 1 Q. Physically how big is any given witness 1 2 file? 13 A. Well, it depends on the witness. 14 Q. How about Dr. Harbison? 15 (Whereupon, a discussion was held off 16 the record.) 17 MR. MALIN: I object and direct the 18 witness not to answer, essentially, because, use or 1 9 non-use of those witnesses is purely a work-product 20 decision of counsel and reviews counsel's work 21 product and, accordingly, the witness is not 22 required to answer that. 23 BY MR. KOHN: 24 Q. What is the range or size of the witness &TPATTQQ ft T 7 C. ftr'V'TTDMAM T M r* WATER PCB-00047997 Bistline 219 1 files from the smallest to the biggest? 2 A. A few inches to probably several feet. 3 Q. Have any representatives of the General 4 Electric Company ever had any access to the expert 5 files, the witness files? 6 (Whereupon, a discussion was held off 7 the record.) 8 MR. MALIN : The witness may answer 9 that ques tion. 1 0 A. No, Mr. Kohn, no one other than Monsanto 1 1 counsel or members of my staff have access to those 1 2 files. 13 Q. Has anyone from, or any representative 1 4 of General Electric Company ever had any access to 1 5 the business data bank file? 1 6 A. No, sir. 17 Q. Has any outside expert or consultant 18 ever had access to the business data bank file? 19 A. No. But let me qualify that by saying, 20 that the people that we had help us build the 21 archive, the outside vendor that we used, had access 22 to it, in that limited sense only. But other than 23 that, no. 24 Q. Who or what was the outside entity or Ii iii} jS i l KRAUSS . KATZ ACKERMAN- TNC. WATER PCB-00047998 Bistline 220 1 group that helped build that file? 2 MR. MALIN: I object. I direct the 3 witness not to answer. The outside vendor who may 4 have helped is irrelevant to any issue in this 5 case. 6 MR. KOHN: I'm not asking what they 7 did, just their identity. 8 MR. MALIN: Even that's irrelevant. 9 MR. KOHN: I think it's relevant to 1 0 your continuing claim of work product with respect 1 1 to that file. The question of work product, if you 1 2 brought in some outside vendor. 13 I ask that you just give us the name 14 and identity of this group or groups or vendor or 1 5 vendors that worked with you on putting this file 16 together. 17 MR. MALIN: The objection stands. 18 BY MR. KOHN: 19 Q. The outside group were not lawyers, were 20 they ? 21 MR. MALIN: Object. I direct the 22 witness not to answer the question. Irrelevant. 23 BY MR. KOHN: 24 Q. Have any outside experts or consultants iI I I i J ! i KRAUSS. K AT7 t Mr WATER PCB-00047999 Bistline 221 1 ever had access to the file of scientific literature 2 that we were speaking about before lunch today? 3 A . No . 4 Q. No expert retained or consulted by 5 Monsanto has ever looked at the Monsanto files of 6 scientific literature? 7 A. We provided, from time to time, experts 8 with articles from that data base, but no expert has 9 been given the index in order to peruse and 1 0 determine what he or she might want to see from that 1 1 data base. 12 Q. In other words,Monsanto selects from 13 this data base what you want the expert to see and 1 4 you give that to them? 1 5 A. I would say that's anincomplete 16 characterization of the process. 1 7 Q. In addition, the expert may ask you for 1 8 certain things and then you get them for him? 19 A. That's correct. 20 MR. KOHN: Let me take a short 2 1 break. I think we're done. I just want to check my 22 notes. 23 (Whereupon a short recess was then 24 taken . ) KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00048000 Bistline 222 1 BY MR. KOHN: 2 Q. On this first day of deposition on 3 January the 4th, you indicated that as part of your 4 duties you have consulted with scientists both 5 inside and outside of the company. 6 Can you identify for me the 7 scientists inside and outside of the company that 8 you have consulted with any connection with PCB 9 litigation? 1 0 MR. MALIN: Hold on. 1 1 (Whereupon, a discussion was held off 1 2 the record.) 1 3 MR. MALIN: I object to the question. 14 I direct the witness not to answer. It's irrelevant 15 to any issue that is now before the court with 16 respect to this litigation. 17 MR. KOHN: Well -- 1 8 MR. MALIN: As well as presenting 19 attorney work product and the mental impressions and 20 strategy ofthe case. 2 1 MR. KOHN: He was discussing his 22 strategy withoutside consultants. Idon't know 23 that there is much of a privilege left. This is the 24 first deposition of the Monsanto witness in these ! | | j ! | : j ' ! j i , ' j ! I i : j KRAUSS. KATZ & ACKERMAN. INC. WATER PCB-00048001 Bistline 223 1 cases. We're trying to identify some people that 2 might be witnesses, with respect to the scientists 3 inside the company that he spoke with about PCB 4 litigation. We are simply asking for the names of 5 those individuals. 6 MR. MALIN: Scientists inside the 7 company? 8 MR. KOHN: Yes. Start with the ones 9 inside the company. 1 0 Potential witnesses in the case. 11 MR. MALIN: The objection stands. 12 MR. KOHN: All right. I have no 1 3 further questions at this time, subject to our right 1 4 to seek whatever relief we may deem appropriate as 15 to the instructions not to answer. 16 I have no other questions, now. 1 7 MR. MALIN: I have a question or 18 two . 19 20 EXAMINATION 21 22 BY MR. MALIN: 23 Q. Mr. Bistline, does Monsanto have any 24 documents which reflect any research which Monsanto \ ! ! ii i KRAUSS, KATZ & ACKERMAN. INC. WATER PCB-00048002 Bistline 224 1 has done on the human health effects of PCBs, which 2 were not produced in the Federal litigation under 3 the general caption of Brown versus Septa, et al., 4 and those particular cases which are now on appeal 5 in the Third Circuit? 6 A. No. Mr. Malin, to the best of memory, 7 we have produced all of the documents of that type 8 that we had. 9 Q. To the best of your knowledge, and 1 0 belief, Mr. Bistline, is it true that all of the 1 1 documents on the human health effects of PCBs art 1 2 epidemiological studies are available in the public 1 3 domain ? 1 4 MR. KOHN: Objection, leading. I 1 5 object to the form. 16 A. That's true, to the best of my 1 7 knowledge. 18 MR. MALIN: No further questions. 19 20 FURTHER EXAMINATION 21 22 BY MR. KOHN: 23 Q. How many documents did you produce in 24 the Federal litigation pertinent to the subject that ii i i 1/ o s rr r f? im mr r /- rr WATER PCB-00048003 Bistline 225 1 Mr. Malin just questioned you on? 2 A. I think I have to defer to Mr. Malin for 3 the exact count on that. 4 Q. You don't know, do you? 5 A. Between 4,000 and 4500 pages of 6 documents were produced. 7 Q. And do they relate specifically to what 8 that Mr. Malin just questioned you about in your 9 redirect? 1 0 A. Whether they all do or not, I don't know 1 1 at this point, Mr. Kohn. 1 2 Q. You don't know one way or the other how 1 3 many documents covered the subject you just 14 testified. You're sure all of the documents were 15 given? 16 A. They are what they are. 1 7 MR. MALIN: They were produced, you 18 have them. If you want to count them, you may do 19 so. If you want us to enumerate them for you again, 20 we would be willing to do that. There were several 21 epidemiological studies. I don't know if 1&71 22 epidemiological studies,"human health effect studies t2 3 of Monsanto employees^ were produced 24 BY MR. KOHN: j KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00048004 Bistline 226 1 Q. Mr. Bistline, how many separate human 2 health effect studies did Monsanto produce? 3 A. Did we produce? 4 Q. Did you produce in the Federal 5 litigation of Brown versus SEPTA, et a 1 . ? 6 A. We produced, I believe, several looking 7 at the same group of people who worked at the 8 Krummrich plant. We produced -- as I said, we 9 produced several looks at that same group of 1 0 Krummrich workers, I wouldn't say they were all 1 1 separate studies. I think they were probably all 1 2 different versions of looking at the same group. 13 Q. All right. And that's the only studies 14 of human health effects that Monsanto had performed 15 that you produced in the Brown case? 16 A. That's correct. 1 7 Q. Has Monsanto performed any studies of 18 health effects on animals of PCBs? 19 MR. MALIN: Objection. I direct the 20 witness not to answer. 21 MR. KOHN : I have no further 22 ques tions . 23 MR. MALIN; Nothing further. 24 ii I i |! i ! i i i i KRAUSS, KATZ & ACKERMAN, INC. WATER PCB-00048005 Bis tline 227 1 (Deposition concluded.) 2 3 4 5 6 7 8 9 10 11 i 12 13 14 j 15 I 16 i 17 18 ! 19 20 21 22 23 24 KRAUSS. KATZ & ACKERMAN. INC. WATER PCB-00048006 Bistline 228 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 16 (The foregoing certification of this 17 transcript does not apply to any reproduction of the 1 8 same by any means, unless under the direct control 19 and/or supervision of the certifying reporter.) 20 21 22 23 24 1I ] i I ! t^D&MCC V ft rf* 7 C SPVDDWAM TMr* WATER PCB-00048007 Bistline 229 1 ACKNOWLEDGEMENT OF DEPONENT 2 I, , do hereby certify 3 that I have read the foregoing pages, 4 and that the same is a correct transcription of the 5 answers given by me to the questions therein 6 propounded, except for the corrections or changes in 7 form or substance, if any, noted in the attached 3 Errata Sheet. 9 1 0 DATE 11 12 13 ERRATA 14 15 16 PAGE LINE CHANGE 17 18 19 20 21 Subscribed and sworn to before me this day 22 of , 198 ____ . 23 My commission expires: __________________________________ 24 Notary Public i ; KRAUSS. KATZ ACKERMAN TNT. WATER PCB-00048008 Page Line LAWYER'S NOTES WATER PCB-00048009