Document evwn14Z9bJXgKy5J591dY2oDE
FILE NAME: Eagle-Picher (EP) DATE: 1988 Mar 25 DOC#: EP044 DOCUMENT DESCRIPTION: Legal - Affidavit of James A. Ralston
IN THE DISTRICT COURT OF BRAZORIA COUNTY, TEXAS 23RD JUDICIAL DISTRICT
TOMMY L. HEATHMAN and wife
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DIXIE A. HEATHMAN,
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Plaintiffs, )
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OWENS-CORNING FIBERGLAS
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CORPORATION, ET. AL.,
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Defendants. )
) CASE NO.87-C-1934
STATE OF OHIO COUNTY OF HAMILTON
AFFIDAVIT
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I, follows:
JAMES A. RALSTON, being first duly sworn, do depose and say as
1. I am an attorney licensed to practice 1n the State of Ohio.
2. I am a Vice President of Eagle-Picher Industries, Inc., ("Eagle-Picher") and its General Counsel.
3. I have been continuously employed by Eagle-Picher since July 9, 1979.
4 . During my employment with Eag1e-P1cher, I personally examined Eagle-P1cher's files and records relating to a civil action filed on August 15, 1963 in the Circuit Court of Jasper Conty, Missouri, bearing the caption Russell L. Pickard v. The Eagle-Picher Company, Case No. 56126 (the "Pickard case").
5. A. E. Spencer, Jr. of the law firm of Spencer, Scott & Dwyer, Joplin, Missouri, was counsel of record for Eagle-Picher in the Pickard litigation. Eagle-Picher received information and the documents 1n its files on the Pickard case from Spencer, Scott and Dwyer.
6. One of the documents in Eagle-Picher's files on the Pickard case is a document entitled "Conference February 19, 1964, Eagle-Picher Insulation Plant, Joplin, Missouri" (the "Attorney Memorandum"), a legally privileged communication from A. E. Spencer, Jr. to Eagle-Picher's Assistant General Counsel, Mr. Charles S. Dautel. Mr. Spencer prepared the Attorney Memorandum to provide legal advice to Eagle-Picher 1n connection with the
Pickard case.
7.
Eagle-Picher has at all times protected the Attorney Memorandum
from disclosure by segregating 1t from other corporate documents. Eagle-Picher has never been compelled to produce this privileged document
and has objected to and opposed its production whenever 1t has been requested or made the subject of a motion to compel 1n the underlying
asbestos-related litigation.
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8.
Access to the Attorney Memorandum has been strictly limited to
avoid knowing disclosure to parties or counsel not Involved In the
representation of Eagle-P1cher 1n litigation. Access to a claim file in
which the Attorney Memorandum 1s maintained has been provided, 1n complete
confidence, only to corporate counsel for Eagle-P1cher, outside counsel retained by an Eagle-Picher insurer involved in the handling and defense
of Eagle-Picher1s asbestos-related litigation, and outside counsel retained directly by Eagle-Picher to represent it in asbestos-related
1 itlgation.
9.
In November, 1985, Eagle-Picher produced for the U. S. Governments'
review in a case in the United States Claims Court captioned Eaqle-P1cher
Industries. Inc, v. United States of America, Case No. 170-83C (the
"Claims Court litigation"), nearly one million documents comprising all
non-pr1vileged asbestos-related docwents 1n the possession of
Eagle-Picher or Its counsel 1n asbestos-related Insurance litigation.
10. The Attorney Memorandum was accidentally and Inadvertently included among the documents produced to the U. S. Government In the Claims Court litigation.
11. Upon discovery of this Inadvertent production, I Immediately wrote to the trial counsel for the U. S. Government, advising that the Attorney Memorandum was protected by the attorney-client privilege, and requesting that the U. S. Government destroy all copies of the Attorney Memorandum In the possession of any U. S. Government agency and that the Government
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expunge any copy thereof from any microfilm reels of documents In the Claims Court litigation. Eagle-Picher also immediately filed a Motion f o r a Protective Order regarding this inadvertent production.
12. On February 9, 1987, prior to a ruling by the court on Eagle-Picher's Motion for a Protective Order, trial counsel for the U. S. Government in the Claims Court litigation agreed that Eagle-Picher had properly asserted the attorney-client privilege and the attorney work, product doctrine in connection with the Attorney Memorandum, and agreed further to return to trial counsel for Eagle-Picher all copies thereof and to expunge all copies thereof from the microfilm reels of documents 1n the Claims Court litigation.
13. The foregoing facts are true and based upon my personal knowledge.
Sworn to before me and subscribed 1n my presence this / /V' \ ' C . a - t 1988.
day of
My Commission expires:
Notary Public - State of Ohio
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