Document j5xND148EXVaZEK4MXZJjVeR
ORJC: Dtp, FILE CC: RM/Kc
IN THE CIRCUIT COURT THIRD JUDICIAL CIRCUIT MADISON COUNTY, ILLINOIS
IN RE: ALL ASBESTOS LITIGATION FILED BY SIMMONSCOOPER LLC,
Plaintiffs
vs. A.P. GREEN REFRACTORIES, ET AL,
Defendants.
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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of Defendant Pneumo Abex LLC, Successor
in Interest to Abex Corporation's Second Amended Answers to Plaintiffs' Interrogatories
and First Amended Response to Plaintiffs' Request for Production of Documents was
sent via U S. Mail, first-class postage prepaid, this I s' day of November, 2007, to: Ted N.
Gianaris, Esq., SimmonsCooper, LLC, 707 Berkshire Boulevard, East Alton, IL 62024.
Any Co-Defendant desiring a copy should contact the undersigned.
Nov 1 2007 3:06PM
314-345-5000 314-345-5055 Fax
ATTORNEYS FOR DEFENDANTS
Page 1 of 2
SCF-EC-6080
CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing was served upon all counsel of record via LexisNexis File and Serve this 1st day of November, 2007.
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IN THE CIRCUIT COURT THIRD JUDICIAL CIRCUIT MADISON COUNTY, ILLINOIS
IN RE: ALL ASBESTOS LITIGATION FILED BY SIMMONSCOOPER LLC,
Plaintiffs
vs.
A.P. GREEN REFRACTORIES, ETAL.,
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Defendants. ) i________________ **
CERTIFICATE OF SERVICE
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The undersigned certifies that a copy of Defendant Pneumo Abex LLC, Successor
in Interest to Abex Corporation's Second Amended Answers to Plaintiffs' Interrogatories
and First Amended Response to Plaintiffs' Request for Production of Documents was
sent via U.S. Mail, first-class postage prepaid, this 1st day of November, 2007, to: Ted N.
Gianaris, Esq., SimmonsCooper, LLC, 707 Berkshire Boulevard, East Alton, IL 62024.
Any Co-Defendant desiring a copy should contact the undersigned.
314-345-5000 314-345-5055 Fax ATTORNEYS FOR DEFENDANTS
Page 1 of 2
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CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing was served upon all counsel of record via LexisNexis File and Serve this Is* day of November, 2007.
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IN THE CIRCUIT COURT THIRD JUDICIAL CIRCUIT MADISON COUNTY, ILLINOIS
IN RE: ALL ASBESTOS LITIGATION ' FILED BY SIMMONSCOOPER LLC,
Plaintiffs, vs. A.P. GREEN REFRACTORIES, eL al.,
Defendants.
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SECOND AMENDED ANSWERS OF PNEUMO ABEX LLC* SUCCESSOR IN INTEREST TO ABEX CORPORATION. TO PLAINTIFFS* INTERROGATORIES
PRELIMINARY STATEMENT AND GENERAL OBJECTIONS
Pursuant to the Illinois Rules of Civil Procedure and the Illinois Supreme Court Rules,
defendant Pneumo Abex LLC, successor in interest to Abex Corporation (hereinafter "Abex"),
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hereby responds to Plaintiffs' Interrogatories, as follows:
Abex objects to these interrogatories on the grounds that they are premature and purport
to shift the burden of establishing product identification from plaintiffs to Abex.
Abex also objects to these interrogatories on the grounds that they are compound, contain
numerous terms that are vague and ambiguous and call for speculation.
Abex further objects to these interrogatories to the extent they purport to seek information
or materials unrelated to Abex's alleged liability in these actions and are not reasonably
calculated to lead to the discovery of admissible evidence.
Abex objects to these interrogatories on the ground that they assume the truth of matters
not established or matters not in evidence. Abex also objects to these interrogatories on the ground that they are speculative
inasmuch as they fail to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types of asbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive and/or railroad friction products was chrysotile, the only type of asbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects.
Abex further objects to these interrogatories on the grounds that they are overly broad, oppressive, harassing and otherwise unduly burdensome and call for speculation to the extent to which they request information or materials which are not within the personal knowledge, possession or control of Abex, its employees or agents, or which may be ascertained or derived, if at all, only from a page-by-page review of the existing voluminous business records and documents of Abex. Therefore, the burden of deriving or ascertaining the answers to these interrogatories, if at all, is substantially the same for plaintiffsas Abex.
Abex objects to these interrogatories to the extent to which they purport to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
The answers of Abex hereinafter set forth are limited to providing information concerning
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domestic automotive and/or railroad friction products manufactured by Abex for the allegedly relevant time period only.
Abex never mined or commercially sold raw asbestos or asbestos products. To the best of current and reasonably available information and belief, Abex did not manufacture or sell asbestos-containing automotive brakes, brake assemblies or brake shoes. Nor did Abex ever manufacture, process, distribute, market or sell any asbestos-containing building insulation products. Abex was never involved in the installation or removal of any product. Neither did Abex ever own or operate a contract unit. Rather, Abex manufactured and sold automotive and railroad friction products, some of which contained chrysotile asbestos only.
These answers are based upon such information as is currently and reasonably available to Abex and Abex reserves the right to supplement or amend these answers when and if additional relevant information or documentation becomes available, including any provided by plaintiffs, at the appropriate time. Discovery and investigation are continuing.
Abex does not concede that any of its answers to these interrogatories are or will be admissible evidence at a trial of these actions. Abex does not waive any objection, on any ground, whether or not asserted herein, to the use of any such answer at trial.
To the extent to which the information contained herein differs in any respect from any prior answer or response to discovery, these answers shall be deemed to update and supersede any prior answers or responses in any and all actions.
This Preliminary Statement and General Objections are explicitly incorporated into each of the answers set forth herein, as appropriate.
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SECOND AMENDED ANSWERS INTERROGATORY NO. 1: Identify the person answering these interrogatories on behalf of Defendant.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 1: Information used to respond to these interrogatories has been gathered over the course of many years and by different persons, so that it is impossible to attribute the information to any specific individual(s) or source(s). Abex sought and received the assistance of its legal counsel in the preparation of these answers. Information has also been gathered from documents that are maintained in the normal course of business at Abex's Brooklyn, New York document repository, where non-privileged documents, to which objection is not made, will be made available for inspection and copying through Abex's counsel at a mutually convenient time, upon receipt of an appropriately worded document request. Dexter L. Kenfield, a vice president of Pneumo Abex LLC, 35 East 62nd Street, New York, New York, has signed the verification to these answers. Mr. Kenfield was employed by Abex as Corporate Counsel from 1986 to 1995 and has been a vice president of Pneumo Abex LLC since November 2004. INTERROGATORY NO. 2: Has the person answering these interrogatories made reasonable inquiry of all available sources of information such that Plaintiff may rely upon these answers as the truthful and complete answers made on behalf of Defendant? List any and all such sources of information relied upon. SECOND AMENDED ANSWER TO INTERROGATORY NO. 2 To the best of current and reasonably available information and belief, Dexter L. Kenfield, a vice president of Pneumo Abex LLC, 35 East 62nd Street, New York, New York, has signed the certification to these answers to interrogatories, after being advised that they reflect all information reasonably available to Pneumo Abex LLC. See Certification (attached).
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INTERROGATORY WO. 3: State the following concerning this Defendant
(a) Full and correct name;
(b) The form in which Defendant presently conducts business (i.e. corporation,
partnership, proprietorship, etc.);
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(c) Identify any and all predecessors and related companies as defined above;
(d) Any and all other forms in which defendant has conducted business at any time, and the date(s) when business was conducted in each form;
(e) Any and aJ] names by which Defendant has been known or has conducted business, at any time, and the date(s) during which Defendant has been known by and/or conducted business, under each such name;
(f) Defendant's principal place of business;
(g) Defendant's present state of incorporation or state in which Defendant is registered as a partnership, association, etc., whichever is applicable; if Defendant has, at any time, been incorporated or registered in a different state, identify which state and when;
(h) Most recent date of incorporation or reincorporation, and any and all prior date(s) of incorporation or reincorporation;
(i) Whether this Defendant is authorized to transact business in the State of Illinois and, if so, the date such authority was first issued and last renewed;
(j) If this Defendant has an agent, representative or place of business in Illinois, identify such agent, representative, or place of business; and
(k) If this Defendant has an agent for service in the State of Illinois, identify the registered agent.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 3:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory to the extent it purports to seek information or
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materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney work-product doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, Abex Corporation, Pneumo Abex LLC's predecessor, as defined herein, was incorporated as the American Brake Shoe and Foundry Company in New Jersey in 1902, and was reincorporated as that company in 1916 in Delaware. In 1926, the American Brake Shoe and Foundry Company caused to be incorporated a New York corporation named American Brake Materials Corporation. In 1933, American Brake Materials Corporation changed its name to American Brakeblok Corporation. In 1937, American Brakeblok Corporation merged with the American Brake Shoe and Foundry Company, and was thereafter operated as the American Brakeblok Division of that company. In 1943, the American Brake Shoe and Foundry Company changed its name to the American Brake Shoe Company. In 1966, the American Brake Shoe Company changed its name to Abex Corporation.
In 1968, Abex Corporation became a wholly owned subsidiary of Illinois Central Industries, Inc. Illinois Central Industries, Inc. later changed its name to IC Industries, Inc. Abex
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later became a wholly owned subsidiary of IC Products Company, itself a wholly owned subsidiary of 1C Industries, Inc. (IC Industries, Inc. changed its name to Whitman Corporation in 1988).
In 1988, Abex Corporation was sold to PA Holdings Corporation. In 1990, Abex Corporation was absorbed into PA Holdings Corporation, which later changed its name to Pneumo Abex Corporation. In 2004, Pneumo Abex Corporation was merged into Pneumo Abex LLC.
Pneumo Abex LLC is a Delaware limited liability company and was organized in the State ofDelaware in 2004. Pneumo Abex LLC's principal place of business is located at 35 East 62nd Street, New York, New York. The former Abex Corporation was qualified to do business in the State of Illinois on November 16,1916 and was withdrawn on April 2,1992. INTERROGATORY NO. 4: Has Defendant been sued under its correct legal name? If not, state the correct legal name of Defendant and provide the information requested in No. 3 above concerning the defendant as correctly named.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 4: Not applicable. INTERROGATORY NO. 5: Identify any and all persons or entities which own, or at any time have owned, more than a ten percent (10%) interest in this Defendant, and for each such person or entity identified, state the date(s) during which said person or entity owned more than a ten percent (10%) interest in Defendant and the specific type and amount of interest owned. SECOND AMENDED ANSWER TO INTERROGATORY NO. 5: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is
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limited to the years between 1930 and 1980. Abex also objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery ofadmissible evidence.
Abex objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney work-product doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and insofar as it understands this interrogatory, Abex Corporation, Pneumo Abex LLC's predecessor, as defined herein, was incorporated as the American Brake Shoe and Foundry Company in New Jersey in 1902, and was reincorporated as that company in 1916 in Delaware. In 1926, the American Brake Shoe and Foundry Company caused to be incorporated a New York corporation named American Brake Materials Corporation. In 1933, American Brake Materials Corporation changed its name to American Brakeblok Corporation. In 1937, American Brakebiok Corporation merged with the American Brake Shoe and Foundry Company, and was thereafter operated as the American Brakeblok Division of that company. In 1943, the American Brake Shoe and Foundry Company changed its name to the American Brake Shoe Company. In 1966, the American Brake Shoe
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Company changed its name to Abex Corporation. In 1968, Abex Corporation became a wholly owned subsidiary of Illinois Central
Industries, Inc. Illinois Central Industries, Inc. later changed its name to 1C Industries, Inc. Abex later became a wholly owned subsidiary of IC Products Company, itselfa wholly owned subsidiary of 1C Industries, Inc. (IC Industries, Inc. changed its name to Whitman Corporation in 1988).
In 1988, Abex Corporation was sold to PA Holdings Corporation. In 1990, Abex Corporation was absorbed into PA Holdings Corporation, which later changed its name to Pneumo Abex Corporation. In 2004, Pneumo Abex Corporation was merged into Pneumo Abex LLC. INTERROGATORY NO, 6: Identify any and all companies, businesses, corporations, and/or ventures in which this Defendant owns, or at any time has owned, more than a ten percent (10%) interest and which engaged in the design, manufacturing, selling, distributing, applying, installing, or relabeling ofproducts containing asbestos.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 6: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is limited to the years between 1930 and 1980. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that
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the information or materials it purports to seek iack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex objects to this interrogatory on the ground that it is speculative inasmuch as it fails to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types of asbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive and/or railroad friction products was chrysotile, the only type of asbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects.
Abex also objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation ofand/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and insofar as Abex understands this interrogatoiy, Abex Corporation, Pneumo Abex LLC's predecessor, as defined herein, was incorporated as the American Brake Shoe and Foundry Company in New Jersey in 1902, and was reincorporated as that company in 1916 in Delaware. In 1926, the American Brake Shoe and Foundry Company caused to be incorporated a New York corporation named American Brake Materials Corporation. In 1933, American Brake Materials Corporation changed its name to American Brakeblok Corporation. In 1937, American Brakeblok Corporation merged with the American Brake Shoe and Foundry Company, and was thereafter operated as the American
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Brakeblok Division of that company. In 1943, the American Brake Shoe and Foundry Company changed its name to the American Brake Shoe Company. In 1966, the American Brake Shoe Company changed its name to Abex Corporation.
In 1968, Abex Corporation became a wholly owned subsidiary of Illinois Central Industries, Inc. Illinois Central Industries, Inc. later changed its name to IC Industries, Inc. Abex later became a wholly owned subsidiary of IC Products Company, itself a wholly owned subsidiary of IC Industries, Inc. (1C Industries, Inc. changed its name to Whitman Corporation in 1988).
In 1988, Abex Corporation was sold to PA Holdings Corporation. In 1990, Abex Corporation was absorbed into PA Holdings Corporation, which later changed its name to Pneumo Abex Corporation. In 2004, Pneumo Abex Corporation was merged into Pneumo Abex LLC.
Abex purchased The S.K. Wellman Company in 1963. To the best of current and reasonably available information and belief. The S.K. Wellman Company did not manufacture or distribute asbestos-containing products prior to Abex's purchase of The S.K. Wellman Company. Further, to the best of current and reasonably available information and belief, following its purchase by Abex, The S.K. Wellman Company business may have sold asbestos-containing automotive friction products. Abex sold The S.K. Wellman Company in 1971.
In addition, there may be additional corporate acquisitions involving Abex which are potentially responsive to this interrogatory but due to the passage of time, the change of the nature of its business, and the change in personnel, Abex lacks current knowledge of any such acquisitions. Abex discontinued the manufacture and sale of asbestos-containing railroad friction
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products in 1977 and asbestos-containing automotive friction products in 1987 and no longer
operates any friction product manufacturing facilities. There are no current Abex employees,
officers who worked for Abex, or directors who sat on its Board during the period Abex
manufactured and sold friction products with personal knowledge of the information contained in
all the records and documents that might be responsive to this interrogatory.
INTERROGATORY NO. 7: With respect to each corporation, company, business or joint venture identified in response to Interrogatory No. 6 state:
(a) The type of business, conducted by such related company;
(b) The past and present business relationship's) between said related company and Defendant;
(c) The nature ofthe products or services which Defendant has sold to, or purchased from, said related company;
(d) Whether or not said related company advertises or has advertised products or services supplied by Defendant;
(e) Whether or not said related company sells or has sold Defendant's products or
services within the State of Illinois and, if so, the approximate value of those sales
from 1930 to date;
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(f) Whether or not said related company pays taxes of any type to the State of Illinois or to any political subdivision thereof and, if so, the type of taxes paid;
(g) Whether or not Defendant controls or has controlled, directly or indirectly, in whole or in part, said related company's advertising; and,
(h) The identity ofany past or present officer or director of Defendant who, at any time, served as an officer or director of said related company.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 7t
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
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Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is limited to the years between 1930 and 19E0.
Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney work-product doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and insofar as Abex understands this interrogatory:
SECOND AMENDED ANSWER TO INTERROGAOTRY NO. 7 fate Abex manufactured and sold automotive and railroad friction products, some of which contained chrysotile asbestos only. SECOND AMENDED ANSWER TO INTERROGAOTRY NO. 7 (b): See Objections and Answer to Interrogatory No. 6, which are incorporated by reference as though set forth herein in full.
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SECOND AMENDED ANSWER TO 1NTERROGAOTRY NO. 7 to: To the best ofcurrent and reasonably available information and belief, Abex manufactured and sold automotive friction products. Abex states it manufactured and sold brake blocks, brake linings and brake pads. In addition, Abex sold clutch facings. Abex states it manufactured and sold railroad brake shoes. SECOND AMENDED ANSWER TO 1NTERROGAOTRY NO. 7 (d) and tel: Abex does not know with certainty when each material was used to promote or advertise its asbestos-containing automotive friction products. Furthermore, Abex does not have specific information or materials concerning which advertising agents may have been employed to promote its products. However, documents generally meeting the description of promotional and advertising materials, as well as sales brochures and pamphlets are maintained in the normal course of business at Abex's document repository, where non-privileged documents will be made available for inspection and copying upon request at a mutually convenient time. SECOND AMENDED ANSWER TO INTERROGAOTRV NO. 7 fe): To the best of current and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations. Abex's lack ofpersonal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product
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manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in alt the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of ten (10) million and include an estimated three (3) million sales records, are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best ofAbex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention ofaffording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
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There are approximately 610 boxes, many of which are comprised of approximately 2,000 - 3,000 pages, that contain the documents from which the answer to this interrogatory may be ascertained or derived, the subject matter of which includes but is not limited to the following:
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1. Sales invoices. 2. General sales correspondence. 3. Shipping sheets. 4. Warehouse shipments. 5. Purchase orders and shipping orders. 6. Sales transmittals. 7. Sales and distributor files. 8. Catalogs. 9. Brochures. 10. Promotional materials. 11. Product brochures. Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them. Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best
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specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court.
SECOND AMENDED ANSWER TO INTERROGAOTRY NO. 7 If): Abex objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex also objects to this interrogatory to the extent to which it purports to seek
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information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
SECOND AMENDED ANSWER TO 1NTERROGAOTRY NO. 7 (h): See Objections and Answer to Interrogatory No. 8, which are incorporated by reference as though set forth herein in full. INTkRROGATORY NO. 8: List all directors and officers of Defendant from 1940 to date, and for each state all positions held and the date(s) during which each position was held. SECOND AMENDED ANSWER TO INTERROGATORY NO. 8; Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound and calls for speculation. Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is limited to the years between 1930 and 1980. Abex also objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege. Subject to and without waiving these objections, and to the best of current and reasonably available information and belief, there are no present employees of Pneumo Abex. Further, to the best of current and reasonably available information and belief, the name
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and last known available address of persons who have been a director ofAbex are attached hereto as Exhibit "A." Discovery and inspection are continuing. Abex expressly reserves the
right to supplement or amend this answer to this interrogatory should additional relevant
information become available. To the best of current and reasonably available information and belief, the name and last
known available address ofpersons who have been an officer of Abex are attached hereto as Exhibit "B " Discovery and inspection are continuing. Abex expressly reserves the right to supplement or amend this answer to this interrogatory should additional relevant information
become available. INTERROGATORY NO, 9: State whether any of Defendants' present or former officers or directors ever served (whether before, during or after becoming Defendants' officer or director) as an officer or director of any other company, corporation or business which manufactured, sold or distributed asbestos or asbestos-containing products and, if so, please:
(a) Identify each officer and director of Defendant, who served as such other company's officer or director; and
(b) Identify each company, corporation or business for which each such officer or director served, each position held by such officer or director for such other company, corporation or business, and the time periods each position was held.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 9: Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is
limited to the years between 1930 and 1980. Abex also objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods, products and entities that are not at issue in these cases, on the
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grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex objects to this interrogatory to the extent to which it purports to seek information or materials regarding entities other than Abex.
Abex also objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and to the best of current and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack ofpersonal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products
20
with personal knowledge ofthe information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume ofrecords generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best ofAbex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these
21
boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"); and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of,,or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or . management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be
22
resolved by the Court. INTERROGATORY NO. 10: Has Defendant ever acquired, through purchase, reorganization or merger, another company, corporation or business which manufactured, sold, processed, distributed or contracted to apply, asbestos and/or asbestos-containing products?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 10: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is limited to the years between 1930 and 1980. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the ground that it is speculative inasmuch as it fails to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types of asbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive and/or railroad friction products was chrysotile, the only type of asbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects. Abex also objects to this interrogatory to the extent to which it purports to seek
23
information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, Abex Corporation, Pneumo Abex LLC's predecessor, as defined herein, was incorporated as the American Brake Shoe and Foundry Company in New Jersey in 1902, and was reincorporated as that company in 1916 in Delaware. In 1926, the American Brake Shoe and Foundry Company caused to be incorporated a New York corporation named American Brake Materials Corporation. In 1933, American Brake Materials Corporation changed its name to American Brakeblok Corporation. In 1937, American Brakeblok Corporation merged with the American Brake Shoe and Foundry Company, and was thereafter operated as the American Brakeblok Division of that company. In 1943, the American Brake Shoe and Foundry Company changed its name to the American Brake Shoe Company. In 1966, the American Brake Shoe Company changed its name to Abex Corporation.
In 1968, Abex Corporation became a wholly owned subsidiary of Illinois Central Industries, Inc. Illinois Centra) Industries, Inc. later changed its name to 1C Industries, Inc. Abex later became a wholly owned subsidiary of 1C Products Company, itself a wholly owned subsidiary of IC Industries, Inc. (1C Industries, Inc. changed its name to Whitman Corporation in 1988).
In 1988, Abex Corporation was sold to PA Holdings Corporation. In 1990, Abex Corporation was absorbed into PA Holdings Corporation, which later changed its name to Pneumo Abex Corporation. In 2004, Pneumo Abex Corporation was merged into Pneumo Abex
24
LLC. Abex purchased The S.K. Wellman Company in 1963. To the best of current and
reasonably available information and belief, The S.K. Wellman Company did not manufacture or distribute asbestos-containing products prior to Abex's purchase of The S.K. Wellman Company. Further, to the best of current and reasonably available information and belief, following its purchase by Abex, The S.K. Wellman Company business may have sold asbestos-containing automotive friction products. Abex sold The S.K. Wellman Company in 1971.
In addition, there may be additional corporate acquisitions involving Abex which are potentially responsive to this interrogatory but due to the passage of time, the change of the nature of its business, and the change in personnel, Abex lacks current knowledge of any such acquisitions. Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestos-containing automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory. INTERROGATORY NO. 11: If the answer to Interrogatory No. 10 is "Yes", with respect to each such predecessor:
(a) State its full and correct name; (b) State its principal place of business; (c) State its State of Incorporation; (d) State its date and manner of acquisition by Defendant; (e) Whether this predecessor was, at any time, authorized to transact business in the
25
State of Illinois; and (f) Identify any and all documents referring to, relating to or reflecting the
acquisition. SECOND AMENDED ANSWER TO INTERROGATORY NO. II: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is limited to the years between 1930 and 1980. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory to the extent it purports to seek information that is a matter of public record, and thus, equally available to plaintiffs as Abex. Subject to and without waiving these objections: SECOND AMENDED ANSWER TO INTERROGATORY NO. lOfal; Pneumo Abex LLC, successor in interest to Abex Corporation. SECOND AMENDED ANSWER TO INTERROGATORY NO. lOftri: Pneumo Abex LLC's principal place of business is located at 35 East 62nd Street, New York, New York.
26
SECOND AMENDED ANSWER TO INTERROGATORY NO. lOfri: Pneumo Abex LLC was organized in the State of Delaware. SECOND AMENDED ANSWER TO INTERROGATORY NO. IQfdlt Pneumo Abex LLC was organized in the State of Delaware in 2004. SECOND AMENDED ANSWER TO INTERROGATORY NO. lOfel: The former Abex Corporation was qualified to do business in the State of Illinois on November 16,1916 and was withdrawn on April 2,1992. SECOND AMENDED ANSWER TO INTERROGATORY NO. IQffl: To die best of current and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that . it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations. Abex's lack of personal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory. Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters
27
and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents ofAbex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes ofdocuments and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity, to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims
28
privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court. INTERROGATORY NO. 12: Has Defendant ever acquired from another corporation, company, or business, by any means other than those specified in Interrogatory No. 10, assets or rights to manufacture, sell, distribute or apply asbestos or asbestos-containing products?
29
SECOND AMENDED ANSWER TO INTERROGATORY NO. 12: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the ground that it is speculative inasmuch as it fails to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types of asbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive and/or railroad friction products was chrysotile, the only type of asbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects. Abex also objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege. Subject to and without waiving these objections, and to the best of current knowledge and
30
belief, Abex is unaware of any agreements for the rebranding of asbestos-containing friction products manufactured by others for resale by Abex. Abex has found no documents or information indicating an agreement for Abex to rebrand and sell under its own name asbestoscontaining friction products manufactured by someone else. Abex is aware of information indicating that it may have purchased automotive friction products from Raybestos and Bendix Corporation. It is not known whether the product(s) purchased contained asbestos. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of location where documents containing this information, if it exists, should Ire found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might Ire responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all
31
such records and documents. The existing business records and documents ofAbex, which number in excess of seven
(7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes ofdocuments and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
There are approximately 610 boxes, many of which are comprised of approximately 2,000 - 3,000 pages, that contain the documents from which the answer to this interrogatory may be ascertained or derived, the subject matter of which includes but is not limited to the following:
1. Sales invoices. 2. General sales correspondence. 3. Shipping sheets. 4. Warehouse shipments. 5. Purchase orders and shipping orders. 6. Sales transmittals.
32
7. Sales and distributor files. S. Catalogs. 9. Brochures. 10. Promotional materials. 11. Product brochures. Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them. Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and
33
litigation; reat estate and business transactions; labor and employment issues, claims and
litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or
management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will
remove any documents with respect to which it claims privilege, on a box-by-box basis, and will
prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
the documents were inspected. Any dispute as to the propriety of any objection can thereafter be
resolved by the Court.
INTERROGATORY NO. 13: If the answer to Interrogatory No. 12 is "Yes" with respect to each such acquisition:
(a) State the full and correct name of the company from which such assets or rights were acquired;
(b) State the principal place of business of the company from which said assets or rights were acquired;
(c) Describe the assets or rights acquired, including the specific asbestos-containing products to which said assets or rights related; and
(d) Identify any and all documents referring to, relating to or reflecting the transaction.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 13:
See Objections and Answer to Interrogatory No. 12, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 14: Other than any transaction identified in response to Interrogatories Nos. 10-13, has this Defendant ever been involved, in any capacity, including but not limited to, seller, transferor, grantor, franchiser, licensor, buyer, transferee, grantee, franchisee or subject of the transaction, in any transaction, of any kind, concerning any of the following:
(a) the purchase/sale or transfer of ownership of a company, corporation or business 34
which manufactured, sold, processed, distributed or contracted to apply asbestos and/or asbestos-containing products; or (b) the purchase/sale or transfer of ownership of the assets or rights to manufacture, sell, distribute or apply asbestos or asbestos-containing products; or (c) the purchase/sale or transfer of liabilities arising out of the manufacture, sale, processing, distribution or application of asbestos or asbestos-containing products. SECOND AMENDED ANSWER TO INTERROGATORY NO, 14; Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the ground that it is speculative inasmuch as it fails to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types of asbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive and/or railroad friction products was chrysotile, the only type of asbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects. Abex also objects to this interrogatory to the extent to which it purports to seek
35
information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestos-containing automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Subject to and without waiving these objections, Abex is generally aware of the following transactions that may be responsive to this interrogatory, but has incomplete knowledge of them, including the extent, if any, to which the referenced businesses were associated with asbestoscontaining products before, during or after their affiliation with Abex. In addition, there could have been other transactions potentially responsive to this interrogatory as to which Abex lacks current knowledge:
1971 sale of S.K. Wellman business to Brush-Wellman Corporation 1985 sale of AMSCO Welding Products business to Stoody Company 1986 sale of Signal-Stat Division to Federal-Mogul Corporation 1986 sale of Denison Division to ASEA Inc. 1987 sale of Railroad Products Division to ABC Rail Corporation 1987 sale of Waukesha Pump Division to AMCA International Corporation
36
1988 sale of AMSCO Division to. Amalloy Corporation
1988 sale of Remco Hydraulics Division to Remco Hydraulics Inc.
1989 sale of French friction products business to T & N pic
1989 sale of Italian friction products business to Rutgerswerke A.G.
1989 sale of Mexican friction products business to Echlin Corporation
1989 sale of Waukesha Foundry business to Waukesha Foundry Inc.
1994 sale of Jetway Division to FMC Corporation
.
1994 sale of Abex Friction Products Division and Canadian affiliate to Wagner Electric
Corporation
.
1994 sale ofjoint venture interest in Sundaram-Abex Limited (India) to co-venturer
1996 sale of Abex-NWL Aerospace Division to Parker-Hannifin Corporation
INTERROGATORY NO. 15; If the answer to any sub-part of Interrogatory No. 14 is "Yes", with respect to each such transaction:
(a) Identify all parties to the transaction;
(b) Identify the subject matter of the transaction;
(c) State the date of the transaction; and,
(d) Identify any and all documents, referring to, relating to or reflecting the transaction.
SECOND AMENDED ANSWER TO INTERROGATORY NO. IS:
See Objections and Answer to Interrogatory No. 14, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 16; State the first and last dates on which any asbestos-containing product was manufactured by:
(a) Defendant;
37
(b) each and every predecessor; and (c) each and every related company. SECOND AMENDED ANSWER TO INTERROGATORY NO. 16: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of establishing product identification from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, and to the best of current and reasonably available information and belief, Abex ceased selling clutch facings in approximately 1971. Abex ceased manufacturing and selling its asbestos-containing railroad friction products in 1977. Abex ceased manufacturing and selling its asbestos-containing automotive friction products in 1987. INTERROGATORY NO. 17: State the first and last dates on which any asbestos-containing product was specified, sold, distributed, applied and/or installed within the United States by: (a) Defendant; (b) each and every predecessor; and (c) each and every related company.
38
SECOND AMENDED ANSWER TO INTERROGATORY NO. 17: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of establishing product identification from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery ofadmissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, Abex manufactured and sold various asbestos-containing automotive friction products during various periods from approximately 1927 to 1987. To the best of current and reasonably available information and belief, Abex states it sold clutch facings from an unknown time period until approximately 1971. Abex manufactured and sold asbestos-containing railroad friction products from approximately 1957 to 1977. INTERROGATORY NO. 18: State the last date on which Defendant or any related company specified, sold, distributed, applied and/or installed any asbestos-containing product outside the United States and identify by brand or trade name the products so specified, sold, distributed, applied and/or installed. SECOND AMENDED ANSWER TO INTERROGATORY NO. 18; Abex objects to this interrogatory on the grounds that it is overly broad, unduly
39
burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing product identification from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex also objects to this interrogatory on the ground that it is speculative inasmuch as it fails to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types of asbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive and/or railroad friction products was chrysotile, the only type of asbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects.
Subject to and without waiving these objections, and to the best of current and reasonably available information and belief, Abex ceased selling clutch facings in approximately 1971. Abex ceased manufacturing and selling its asbestos-containing automotive friction products in 1987. Abex ceased manufacturing and selling its asbestos-containing railroad friction products ini 977.
To the best of current and reasonably available information and belief, Abex
40
manufactured and sold its asbestos-containing automotive friction products under one or more of
the following trade names at various times:
,
Trade Name
Yearof Registration or First Use
American Brake Materials Brakeblok........................... American Brakeblok....... Abex ................................ Brake Shoe..................... ... Esline ............................... Stopper........................ ...... American Eagle....... ......... Crossing Guard ................ Protector............................ 121 Super Brakes............. Velvetouch Organik.........
1930 1936 1938 1941 1943 1965 1966 1974 1975 1975 1975 Unknown
INTERROGATORY NO. 19; Identify by full and complete trade name, any and all asbestoscontaining products as defined above, which this Defendant, any related company, or any predecessors) has, at any time:
(a) Designed; (b) Manufactured;
(c) Processed; (d) Sold; (e) Distributed; (0 Applied; (g) Installed;
00 Patented;
(*) Specified; or
(i) Re-labeled.
41
SECOND AMENDED ANSWER TO INTERROGATORY NO. 19: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, duplicative, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of establishing product identification from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, and to the best ofcurrent and reasonably available information and belief, Abex manufactured and sold its asbestos-containing automotive friction products under one or more of the following trade names at various times:
Trade Name
Year of Registration or First Use
American Brake Materials........................... 1930
Brakeblok...................................................... 1936
American Brakeblok................................... 1938
Abex ................
1941
Brake Shoe.................................................... 1943
Esline ..............
1965
Stopper.......................................................... 1966
American Eagle............................................. 1974
Crossing Guard .................................................. 1975
Protector........................................................ 1975
42
121 Super Brakes ................................. ....... 1975 Velvetouch Organik..................................... Unknown
Abex manufactured and sold asbestos-containing railroad friction products under the
trade name "Comet."
INTERROGATORY NO. 20: With respect to each asbestos-containing product listed for each subpart of Interrogatory No. 19:
(a) Identify the specific company (Defendant, predecessor, related company) which designed, manufactured, processed, specified, sold, distributed, applied, installed, patented or re-labeled such product;
(b) State the year in which Defendant, its related company or its predecessor first designed, manufactured, processed, specified, sold, distributed, applied, installed, patented or re-labeled such product; and, -
(c) State the year in which the Defendant, its related company or predecessor last designed, manufactured, processed, specified, sold, distributed, applied, installed, patented or re-labeled such product
SECOND AMENDED ANSWER TO INTERROGATORY NO. 20:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing product identification from plaintiffs to Abex.
Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the grounds
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the
information or materials it purports to seek otherwise lack relevance to the issues arising in these
cases and are not reasonably calculated to lead to the discovery of admissible evidence.
43
Subject to and without waiving these objections: SECOND AMENDED ANSWER TO INTERROGATORY NO. 20 fat: American Brake Shoe and Foundry Company, American Brake Materials Corporation, American Brakebiok Corporation, American Brake Shoe Company. SECOND AMENDED ANSWER TO INTERROGATORY NO. 20 fbl: Abex first manufactured and sold asbestos-containing automotive friction products in approximately 1927. To the best of current and reasonably available information and belief, Abex states it is unaware of the date that it first started selling clutch facings. Abex first manufactured and sold asbestos-containing railroad friction products in approximately 1957. SECOND AMENDED ANSWER TO INTERROGATORY NO, 20 fate Abex ceased manufacturing and selling its asbestos-containing automotive friction products in 1987. To the best of current and reasonably available information and belief, Abex ceased selling clutch facings in approximately 1971. Abex ceased manufacturing and selling its asbestos-containing railroad friction products in 1977. INTERROGATORY NO. 21: Were any of the products, which were listed in response to Interrogatory No. 19 as having been specified, sold, distributed, applied or installed by Defendant, its predecessor or related company(ies), purchased from another company and relabeled for sale or distribution by Defendant, its predecessors or related companies? If so, identify those products, and with respect to each: (a) Identify the company from which Defendant, its predecessor or related company
purchased the product; and (b) Identify the company which manufactured the product; and, (c) State the date(s) during which said re-labeled product was sold, distributed or
applied.
44
SECOND AMENDED ANSWER TO INTERROGATORY NO. 21: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, and to the best ofcurrent knowledge and belief, Abex is unaware of any agreements for the rebranding of asbestos-containing friction products manufactured by others for resale by Abex. Abex has found no documents or information indicating an agreement for Abex to rebrand and sell under its own name asbestoscontaining friction products manufactured by someone else. Abex is aware of information indicating that it may have purchased automotive friction products from Raybestos and Bendix Corporation. It is not known whether the product(s) purchased contained asbestos. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations. Abex's lack of personal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestos-
45
containing automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best ofAbex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is
46
substantially the same for plaintiffs as Abex.
There are approximately 610 boxes, many of which are comprised ofapproximately
2,000 - 3,000 pages, that contain the documents from which the answer to this interrogatory may
be ascertained or derived, the subject matter of which includes but is not limited to the following:
1. Sales invoices.
2. General sales correspondence.
3. Shipping sheets.
4. Warehouse shipments.
5. Purchase orders and shipping orders.
6. Sales transmittals.
7. Sales and distributor flies.
8. Catalogs.
9. Brochures.
"
10. Promotional materials.
11. Product brochures.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity
to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these
boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New
York, where they are maintained in the normal course of business, should plaintiffs decide to
inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims
privilege. In the past, when Abex has had cause to review some boxes of documents, it has
47
segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court. INTERROGATORY NO. 22: Has this Defendant, at any time, applied, contracted to apply, installed or engaged in the business of applying or installing, asbestos-containing products? If so:
(a) State the date(s) on which or during which Defendant applied, contracted to apply, installed or engaged in the business of applying or installing asbestos-containing products;
(b) Identify any and all sites within the State of Illinois at which Defendant applied, 48
installed or contracted to apply or install asbestos-containing products, and for each such site: (i) State whether the products you applied, installed or contracted to apply or install were included as part of the project's contract price or whether you applied the products that were provided at the worksite; (ii) Identify by manufacturer and trade name each and every asbestos-containing product applied or installed; (iii) State the date(s) during which said application or installation took place; (iv) , Identify the employee(s) of Defendant who was (were) in charge of the job; (v) Identify the person or entity for which products were applied or installed; and (vi) Identify all documents relating to such contract, application or installation. SECOND AMENDED ANSWER TO INTERROGATORY NO. 22; Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods, products and work sites that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Subject to and without waiving these objections, Abex states that it did not apply,
contract to apply, install or engage in the business of applying or installing asbestos-containing
products.
INTERROGATORY NO. 23: Has this Defendant, any predecessor or any related company, ever engaged in the business of mining asbestos? If so:
49
(a) Identify which company(ies) whether (Defendant, predecessor or related company) engaged in said business;
(b) State the date(s) during which each said company engaged in such business; (c) State each and every location at which such mining was done; (d) Identify each and every officer, employee and/or agent ofsaid company who, at
any time, was in charge of each mining operation; and, (e) Identify each and every entity, if any, to which said company sold the asbestos
which was mined. SECOND AMENDED ANSWER TO INTERROGATORY NO. 23: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, vague and ambiguous and calls for speculation. Subject to and without waiving these objections, and to the test ofcurrent and reasonably available information and belief, Abex did not engage in the business of mining "asbestos." INTERROGATORY NO. 24: Has this Defendant, any predecessor or any related company ever purchased and resold raw asbestos? If so, with respect to each such purchase and resale: (a) State the date(s) of the transaction; (b) Identify any and all parties from which the raw asbestos was purchased; and (c) Identify any and all parties to which the raw asbestos was sold. SECOND AMENDED ANSWER TO INTERROGATORY NO. 24: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Subject to and without waiving these objections, and to the best of current and reasonably available information and belief, Abex is not aware that it ever purchased and then resold "raw
50
asbestos" INTERROGATORY NO, 2S: Identify each and every source from which Defendant, any predecessor or related company, obtained raw asbestos and/or asbestos-containing material used by Defendant, any predecessor or related company, to manufacture or process any product listed in response to Interrogatory No. 19.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 25: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of establishing product identification from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, Abex does not possess complete knowledge concerning the identity of all its suppliers or the specific time periods of its purchase from specific suppliers ofraw chrysotile asbestos fiber, which were the only asbestos fibers ever utilized by Abex in the manufacture of its asbestos-containing friction products. The extent of its knowledge is reflected below. To the best of current and reasonably available information and belief, Abex is generally aware that, during various periods since 1948 and no later than 1987, when Abex ceased the
51
manufacture of asbestos-containing automotive friction products, raw chrysotile asbestos fibers
were purchased from the following suppliers for use in manufacturing friction products:
Asbestos Corporation, Ltd. Thetford Mines Quebec, Canada
Bell Asbestos Mines, Ltd. Thetford Mines Quebec, Canada
GAF Cotp. Hyde Park, Vermont
Lake Asbestos Black Lake Quebec, Canada
Johns-Manville Corporation Canadian Johns-Manville Corp. Asbestos,. Canada
Vermont Asbestos Group, Inc. Hyde Park, Vermont
Abex may have purchased various types of raw asbestos fibers from North American
Asbestos Corporation and perhaps other suppliers for research purposes only.
INTERROGATORY NO. 26: Is Defendant or any related company, as of the date of answering these interrogatories, still manufacturing, specifying, selling, distributing, applying or installing any asbestos-containing product? If so, give the brand/trade names of such products, type and percentage of asbestos in such product, and the date on which Defendant or any related company first manufactured, specified, sold, distributed, applied or installed said products.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 26:
No.
INTERROGATORY NO, 27: With respect to each and every product listed in answer to Interrogatory No. 19, provide a full and complete description of the package in which the product was sold, including, but not limited to, type of package, size, color and writings thereon.
52
SECOND AMENDED ANSWER TO INTERROGATORY NO. 27:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
>
Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing product identification from plaintiffs to Abex.
Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the grounds
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the
information or materials it purports to seek otherwise lack relevance to the issues arising in these
cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Subject to and without waiving these objections, and to the best of current and reasonably
available information and belief, some ofAbex's asbestos-containing automotive friction
products were generally packaged in plain, brown, or tan cardboard boxes according to size, with
the end label being imprinted with colors. Abex packaging varied from product to product over
the many decades of its corporate existence. Abex's asbestos-containing railroad friction
products were generally shipped on pallets according to size.
INTERROGATORY NO. 28; For each subpart below, state whether or not, to Defendant's knowledge any items as described therein presently exist and, if so, identify any and all such existing items and state the present location of each:
(a) any product listed in response to Interrogatory No. 19, including, but not limited to, any sample, part or piece thereof;
(b) any package of the type in which any or all of the products listed in response to
Interrogatory No. 19 were or would have been sold, including, but not limited to,
any partial package;
.
53
(c) any catalogue, brochure, sales literature or like item referring to, relating to or reflecting any or all of the products listed in response to Interrogatory No. 19;
(d) any picture, drawing, photograph or like representation of the items described. SECOND AMENDED ANSWER TO INTERROGATORY NO. 28: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of establishing product identification from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections: SECOND AMENDED ANSWER TO INTERROGATORY NO. 28 (a) A "Comet" brake shoe is in possession of Abex's counsel. SECOND AMENDED ANSWER TO INTERROGATORY NO. 28 fbl Two types of sample packages for "Abex" automotive friction products are in the possession of Abex's counsel. SECOND AMENDED ANSWER TO INTERROGATORY NO. 28 fc): Abex does not know with certainty when each material was used to promote or advertise
54
its asbestos-containing automotive friction products. Furthermore, Abex does not have specific information or materials concerning which advertising agents may have been employed to promote its products. However, documents generally meeting the description of promotional and advertising materials, as well as sales brochures and pamphlets are maintained in the normal course of business at Abex's document repository, where non-privileged documents will be made available for inspection and copying upon request at a mutually convenient time.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 28 (dt: Abex can make available for inspection photographs of two types of sample packages for "Abex" automotive friction products, \yhich are in the possession ofAbac's counsel at a mutually convenient time. INTERROGATORY NO. 29: Did Defendant, any related company or any predecessor ever stamp or otherwise place (including affixing tags or labels) a company name, initials, or any identifying logo on any of the products listed in response to Interrogatory No. 19? SECOND AMENDED ANSWER TO INTERROGATORY NO, 29: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of establishing product identification from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these
55
cases and are not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, and to the best of current and reasonably
available information and belief, at least some of Abex's friction products carried edge codes but the period of time is unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, and where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestos-containing automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might Be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved
56
in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best ofAbex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
There are approximately 150 boxes, many of which are comprised of approximately 2,000 - 3,000 pages, that contain the documents from which the answer to this interrogatory may be ascertained or derived, the subject matter of which includes but is not limited to the following:
1. Winchester quality control. 2. Production plans. 3. Subject files. Friction products division. 4. Blueprints, Friction products division. 5. General correspondence. Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to
57
inspect them. Abex has no comprehensive list or log of the documents with respect to which it claims
privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and in house counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; tabor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court. INTERROGATORY NO. 30; If your answer to Interrogatory No. 19 is "Yes," identify each and every such product upon which such name, initials or identifying logo appeared and for each
58
such product identified:
(a) Describe each and every name, initials or identifying logo appearing on said product, at any time, by stating the wording, lettering, symbols, size, color and manner in which it was stamped, placed or axed to said product;
(b) State the date(s) during which each such name, initials, or identifying logo
appeared on said product; and
/
(c) Identify any and all documents referring to, relating to or reflecting the stamping, placing or affixing of names, initials or logos to said product, including, but not limited to, any pictures, photographs or like representations of such names, initials or logos.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 30;
See Objections and Answer to Interrogatory No. 29, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 31: Was each of the asbestos-containing products listed in response to Interrogatory No. 19 generally expected to reach, or was each packaged to reach, the consumer or user, without substantial change in the condition in which it was sold?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 31:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the grounds
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that
the information or materials it purports to seek otherwise lack relevance to the issues arising in
these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Subject to and without waiving these objections, Abex's asbestos-containing automotive
59
products were not manufactured pursuant to any single formula. Variations in the formulas of Abex's asbestos-containing automotive products were to meet the customer's specifications for a specific application. Abex's asbestos-containing automotive friction products were generally sold in ready-to-use form. To the best of current and reasonably available information and belief, some Abex friction products were generally intended to reach the ultimate end-user in substantially the same condition as sold by Abex, while other Abex friction products were not. Abex's railroad friction products were intended to reach the ultimate end-user in substantially the same condition as sold by Abex. INTERROGATORY NO. 32: If your answer to Interrogatory No. 31 is "No" with respect to any product(s), explain in what manner Defendant claims said produces) were altered or substantially changed after sale or distribution and before reaching the consumer or user.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 32: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of establishing product identification from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, and to the best of current and reasonably
60
available information and belief, some Abex automotive friction products may have undergone changes after sale by Abex and prior to reaching the ultimate end-user. Such changes may have
included, for example, changes in size, shape, configuration, attachment to other brake system
components, and incorporation into larger automotive products.
INTERROGATORY NO. 33: With respect to each product listed in response to Interrogatory No. 19, state whether, based upon the material contents, the method of manufacturing, and the method of application, such product could generally be applied or installed without liberating asbestos fibers?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 33; Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Subject to and without waiving these objections, and to the best of current and reasonably available information and belief, Abex's asbestos-containing friction products could generally be
applied or installed without liberating asbestos fibers.
INTERROGATORY NO. 34: This interrogatory has been withdrawn by plaintiff or stricken by the Court.
INTERROGATORY NO. 35: Identify each person who participated in the design and/or preparation of manufacturing specifications for each product listed in response to Interrogatory No. 19.
61
SECOND AMENDED ANSWER TO INTERROGATORY NO. 35:
Abex objects to this interrogatoiy on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the grounds
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that
the information or materials it purports to seek otherwise lack relevance to the issues arising in
these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Subject to and without waiving these objections, and to the best of current and reasonably
available information and belief, the following individuals may have or may have had
information responsive to this interrogatory:
Blume, William Kwolek, John Merkel, Timothy Nelson, Robert E. Pearce, Richard Spokes, Raymond
.
None of the above-referenced individuals is currently an officer, director or employee of
Abex. This answer is based upon such information as is currently and reasonably available to
Abex and Abex reserves the right to supplement or amend this answer when and if additional
relevant information or documentation becomes available, including any provided by plaintiffs,
at the appropriate time. Discovery and investigation are continuing.
INTERROGATORY NO. 36: Identify any and all documents, including, but not limited to, written memoranda, specifications, blueprints, formulas, patterns and designs, referring to, relating to or reflecting the design, preparation, application and/or installation of each product
62
listed in response to Interrogatory No. 19. SECOND AMENDED ANSWER TO INTERROGATORY NO. 36: Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory oh the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery ofadmissible evidence.
Abex objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney work-product doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Abex also objects to this interrogatory to the extent it purports to seek confidential, trade secret or other proprietary information or materials.
Subject to and without waiving these objections, and to the best of current and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
63
Abex's lack of personal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestos-containing automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume ofrecords generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best ofAbex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or
64
summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
There are approximately 150 boxes, many of which are comprised ofapproximately 2,000 - 3,000 pages, that contain the documents from which the answer to this interrogatory may be ascertained or derived, the subject matter of which includes but is not limited to the following:
1. Winchester quality control. 2. Production plans. 3. Subject files, Friction products division. 4. Blueprints, Friction products division. 5. General correspondence. Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect than. Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and in house counsel, on
65
the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and . litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court. INTERROGATORY NO. 37: With respect to each product listed in response to Interrogatory No. 19, state:
(a) The type of asbestos contained in the product as it was first manufactured; (b) The percentage of asbestos contained in the product as it was first manufactured; (c) Any modification to the product which altered the percentage or type of asbestos
in the product and the dates of such modification; (d) The source of asbestos in each product; (e) The color, physical characteristics, and appearance of each products; . (f) Any and all other names under which the product was sold, at any time;
66
(g) The number and date of each patent or patent application for each product;
(h) If the product continued to be produced after the deletion of asbestos, ail reasons why the asbestos was deleted, the identity of the person(s) who made the decision to delete the asbestos, and the date the product was first produced without the asbestos;
(i) If the product is no longer produced, all reasons it was discontinued, the identity
of the person(s) who made the decision to discontinue the product, the brand name
of the replacement product, and the date the replacement product first went into
production; and
.
(j) The reasons why asbestos was used as an ingredient in each such product.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 37:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing product identification from plaintiffs to Abex.
Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the grounds
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the
information or materials it purports to seek otherwise lack relevance to the issues arising in these
cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex also objects to this interrogatory to the extent to which it purports to seek
information or materials that have been gathered, received, or prepared in the course of litigation,
or which are otherwise subject to the attorney-client privilege, protected by the attorney work-
product doctrine, the rule protecting materials prepared in anticipation of and/or in connection
67
with litigation, or any other applicable privilege.
Abex further objects to this interrogatory to the extent it purports to seek information that
is a matter ofpublic record, and thus, equally available to plaintiffs as Abex.
Subject to and without waiving these objections:
SECOND AMENDED ANSWER TO INTERROGATORY NO. 37 faV.
Chrysotile asbestos only.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 37 (b) and (c):
Abex's asbestos-containing automotive friction products contained approximately 25 to
70 percent chrysotile asbestos only. Abex's "Comet" railroad brake shoe contained
approximately 5 percent chrysotile asbestos only.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 37 (d):
Abex does not possess complete knowledge concerning the identity of all its suppliers or
the specific time periods of its purchase from specific suppliers of raw chrysotile asbestos fiber,
which were the only asbestos fibers ever utilized by Abex in the manufacture of its asbestos-
containing friction products. The extent of its knowledge is reflected below.
To the best ofcurrent and reasonably available information and belief, Abex is generally
aware that, during various periods since 1948 and no later than 1987, when Abex ceased the
manufacture of asbestos-containing automotive friction products, raw chrysotile asbestos fibers
were purchased from the following suppliers for use in manufacturing friction products:
Asbestos Corporation, Ltd. Thetford Mines Quebec, Canada
.
*
'
Bell Asbestos Mines, Ltd. Thetford Mines
68
Quebec, Canada GAF Corp. Hyde Park, Vermont
Lake Asbestos Black Lake Quebec, Canada Johns-Manville Corporation Canadian Johns-Manville Corp. Asbestos, Canada Vermont Asbestos Group, Inc. Hyde Park, Vermont SECOND AMENDED ANSWER TO INTERROGATORY NO. 37 SUBPART feV:
Abex's asbestos-containing brake linings were flat black, charcoal and gray in color, and were shaped into curved, linear segments and pad shapes. Abex's asbestos-containing railroad brake shoes were flat black, charcoal and gray in color, and had curved, linear segments of friction material integrally attached to steel backings.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 37 SUBPART ffl: See Objections and Answer to Interrogatory No. 19, which are incorporated by reference
as though set forth herein in full.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 37 SUBPART (e): To the best of current and reasonably available information and belief unknown. Abex
has made a reasonable and good faith effort to obtain the requested information, to the extent that
it is not equally available to plaintiffs, by making a good faith search of locations where
documents containing this information, if it exists, should be found, where appropriate, by
inquiry to other natural persons or organizations.
69
Abex's lack ofpersonal knowledge is due to the following: Abex discontinued the
manufacture and sale of asbestos-containing railroad friction products in 1977 and
asbestos-containing automotive friction products in 1987 and no longer operates any friction
product manufacturing facilities. There are no current Abex employees, officers who worked for
Abex, or directors who sat on its Board during the period Abex manufactured and sold friction
products with personal knowledge of the information contained in all the records and documents
that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during
which time it underwent numerous changes in its corporate structure, management, headquarters
and name. The volume of records generated, and documents accumulated, during that time was
enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such
records and documents, or that it otherwise has knowledge of the information contained in all
such records and documents.
The existing business records and documents of Abex, which number in excess of seven
(7) million (excluding am estimated three (3) million non-railroad sales invoices), are preserved
in the order in which they were found. No summary, abstract, or compilation of the contents of
the Abex document repository has been prepared and to the best of Abex's knowledge, no such
.'
document exists. In the past, Abex has provided parties with a document entitled "Finding Aid."
The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge,
it reflects the general nature of the contents of boxes of documents and provided with the
intention of affording parties a reasonable opportunity to examine, audit, and inspect the records
contained in the repository for purposes of copying or preparing their own abstracts or
70
summaries. There was never a central corporate filing system of Abex records and documents, Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
There are approximately 150 boxes, many of which are comprised of approximately 2,000 - 3,000 pages, that contain the documents from which the answer to this interrogatory may be ascertained or derived, the subject matter of which includes but is not limited to the following:
1. Winchester quality control. 2. Production plans. 3. Subject files. Friction products division. 4. Blueprints, Friction products division. 5. General correspondence. Pursuant to Illinois Rules of. Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them. Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and in house counsel, on
71
the other hand, as well as documents prepared at the request of, or for the benefit of such counsel of setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 37 fh) and ffl: Abex ceased manufacturing and selling its asbestos-containing automotive friction products in 1987 due to a shift in the demand for friction products. SECOND AMENDED ANSWER TO INTERROGATORY NO. 37 SUBPART fft Chrysotile asbestos, the only type of asbestos fibers ever used by Abex in the manufacture of its friction products were utilized in Abex's asbestos-containing friction products because it represented a uniquely favorable combination of properties, including thermal stability, friction level, reinforcing properties, cost, availability, compatibility with production processes and
72
manufacturing equipment, acceptability and familiarity to customers, and safety with regard to its
use in friction products.
INTERROGATORY NO. 38: Identify any and all facilities at which Defendant, any predecessor or any related company, at any time, manufactured or processed asbestos-containing products, or processed raw asbestos. For each such facility identified:
.x
(a) State the date(s) which said facility was owned and/or operated by Defendant, any predecessor or any related company;
(b) State the date(s) during which asbestos-containing products and/or raw asbestos were manufactured or processed, at said facility; and,
(c) Identify each person serving as the manager or supervisor of said facility during any time which the facility has been owned and/or operated by Defendant, any . predecessor or any related company, and state the date(s) of the tenure as manager or supervisor for each.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 38:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing product identification from plaintiffs to Abex.
Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods, products and work sites that are not at issue in these cases, on
the grounds that such information or materials lack relevance and are not reasonably calculated to
lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds
that the information or materials it purports to seek lack relevance to the issues arising in these
cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Subject to and without waiving these objections, Abex never mined, marketed or
73
commercially sold raw asbestos. Abex's asbestos-containing automotive friction products were manufactured in Detroit, Michigan starting in approximately 1927 and ceased in the mid-1950's; in Salisbuiy, North Carolina starting in 1974 and ceased in 1987; and in Winchester, Virginia starting in 1947 and ceased in 1987. To the best of current and reasonably available information and belief, E.H. Feierabend (Winchester), Albert Indelicato (Salisbury), and Charles Mallory (Winchester) may have had some operational responsibilities over these plants. Abex does not have any specific knowledge or information as to whether any.automotive friction products were manufactured at its former facility in Lancaster, New York. Said facility was destroyed in 1927. Abex is unaware of any documents that could indicate that asbestoscontaining automotive friction products were manufactured at the Lancaster, New York facility prior to 1927. Abex's asbestos-containing railroad friction products were manufactured in Chicago, Illinois. INTERROGATORY NO. 39; Withdrawn by plaintiff or stricken by the Court INTERROGATORY NO. 40: Identify any and all persons known by you to have any knowledge concerning the manufacture, sale, distribution, possession, application, installation or use of the products listed in response to Interrogatory No. 19.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 40: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that
74
the information or materials it purports to seek lack relevance to the issues arising in these cases
and are not reasonably calculated to lead to the discovery of admissible evidence.
Subject to and without waiving these objections, and to the best of current and reasonably
available information and belief, the following individuals may have or may have had
information responsive to this interrogatory:
Indelicato, Albert Bretz, Earl L., Jr. Cvitkovich, Steven Feierabend, Eric H. Francis, W. H. Kleeschulte, David G. Mallory, Charles B. Nelson, Robert Parker, F. R. Blume, William Merkle, Timothy Spokes, Raymond Pearce, Richard Kwolek, John Griffith, Arvon Nelson, Robert
.
None of the above-referenced individuals is currently an officer, director or employee of
Abex. This answer is based upon such information as is currently and reasonably available to
Abex and Abex reserves the right to supplement or amend this answer when and if additional
relevant information or documentation becomes available, including any provided by plaintiffs,
at the appropriate time. Discovery and investigation are continuing.
INTERROGATORY NO. 41: Has Defendant, any predecessor or any related company, at any time, designed, manufactured, processed, sold, distributed, supplied, applied, installed or contracted to apply or install any product which contained vermiculile?
75
SECOND AMENDED ANSWER TO INTERROGATORY NO. 41:
Not applicable.
INTERROGATORY NO. 42: Ifyou answer to Interrogatory No. 41 is "Yes," identify by brand/trade name any and all such products which contained vermiculite and for each:
(a) State the date(s) during which said product contained vermiculite;
(b) State, in percentage terms, the amount of vermiculite contained in the product;
(c) Identify the source ofthe vermiculite used in the product;
(d) Identify the specific company (Defendant, predecessor, related company) which
designed, manufactured, processed, sold, distributed, applied, installed or patented
such product;
.
(e) State the year in which Defendant, its related company or its predecessor first designed, manufactured, processed, sold, distributed, applied, installed or patented such product;
(f) State the year in which the Defendant, its related company or predecessor last designed, manufactured, processed, sold, distributed, applied, installed or patented such product;
(g) State whether any sample, part or piece of such product is still in existence; and
(h) Identify all documents relating to such product, including but not limited to any package, brochure, catalog, picture, photograph or like representation ofthe product or packaging.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 42:
Not applicable.
INTERROGATORY NO. 43: With respect to the products listed in response to Interrogatories Nos. 19 and 42, did Defendant, any predecessor or related company or the manufacturer of the products ever conduct test [sic] of any kind on any or all of said products concerning possible or potential health hazards involved in its use or in the use of material contained therein.
76
SECOND AMENDED ANSWER TO INTERROGATORY NO. 43: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney work-product doctrine, the rule protecting materials prepared in anticipation of and/or in connection with 1itigation, or any other applicable privilege. Subject to and without waiving these objections, and insofar as Abex understands this interrogatory, any tests conducted by Abex on its asbestos-containing automotive friction products would have been quality control tests to ensure that Abex's asbestos-containing automotive friction products performed their intended task of slowing or stopping a moving vehicle. Any further information or materials related to performance tests lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex has made a reasonable and good faith effort to obtain the requested information, to
77
the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, . or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of ten (10) million and include an estimated three (3) million sales records, are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it
78
reflects the general nature of the contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
There are approximately 125 boxes, many of which are comprised of approximately 2,000 - 3,000 pages, that contain the documents from which the answer to this interrogatory may be ascertained or derived, the subject matter of which includes but is not limited to the following:
1. Research and development, Raw materials. 2. Lab notebooks. Product development. 3. Subject files. 4. Engineering test results. 5. Formula, testing, and development. 6. Production/testing research. Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them. Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has
79
segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit ofsuch counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiffavails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court INTERROGATORY NO. 44: If your answer Interrogatory No. 43 is "Yes," with respect to each product test:
(a) State the location where the test was performed; (b) Identify each and every individual who conducted or participated in said test; (c) Describe the results of said test;
80
(d) State the date or dates upon which said test was conducted; (e) Identify any and all documents referring to, relating to or reflecting said test or the
results thereof; and (f) Identify each and every individual who received a copy of any document referring
to, relating to or reflecting the results of said test. SECOND AMENDED ANSWER TO INTERROGATORY NO. 44: See Objections and Answer to Interrogatory No. 43, which are incorporated by reference as though set forth herein in full. INTERROGATORY NO. 45: Did any person, including but not limited to, an officer, agent or employee of Defendant, any predecessor or related company recommend any design changes as a result of any test referenced in your response to the preceding interrogatory? SECOND AMENDED ANSWER TO INTERROGATORY NO. 45; See Objections and Answer to Interrogatory No. 43, which are incorporated by reference as though set forth herein in full. INTERROGATORY NO. 46: If your answer to Interrogatory No. 45 is "Yes," with respect to each such recommended design change: (a) State the product or products involved; (b) State the test or tests involved; (c) State the nature of the change recommended; (d) Identify the person(s) making the recommendation; (e) State the nature and effective date of any change made; and (f) Identify each and every person who participated in the decision to make or not
make the recommended design change.
81
SECOND AMENDED ANSWER TO INTERROGATORY NO. 46: See Objections and Answer to Interrogatory No. 43, which are incorporated by reference as though set forth herein in full. INTERROGATORY NO. 47: Identify any and all persons employed by Defendant, its predecessor or related company at any time from 1940 to date as an industrial hygienist or similar position. SECOND AMENDED ANSWER TO INTERROGATORY NO. 47: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, Abex employed industrial hygienists and medical directors whose job duties included ensuring a safe working environment for all Abex employees. Because these personnel dealt with the working conditions of Abex employees, further information or materials regarding them lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving this additional objection, the following persons served as medical director of Abex Corporation:
82
Name Lloyd E. Hamlin
Charles C. Blackwell
Last Known Place of Employment .
2501 Blue Island Avenue Chicago, Illinois
2501 Blue Island Avenue Chicago, Illinois
Frederick W. Knoch William F. Redman
4550 W. 26th Street Chicago, Illinois 60623
485 Frontage Read Burr Ridge, Illinois 60521
Dennis G. Egnatz
485 Frontage Road Burr Ridge, Illinois 60521
Last Known Address Deceased
4911 East Doubletree Ranch Road Paradise Valley, Arizona 75253
Deceased
396 Belden Street, Glendale Heights Illinois 60137
'
121 Lakewood Circle Buit Ridge, Illinois 60521
Years of Employment
1941-1961 1961-1976
1976-1981 1982
1982-1987
The following persons served as industrial hygienists of Abex Corporation:
1941-1945 1943-1954 1945-1946 1946-1966 1948-1948 1949-1954 1951-1951 1952-1955 1955-1966 1955-1960
J. B. Littlefield H.J. Weber R. H. Anderson H. J. Gotmer W. A. Hamlin A. Edwards R. A. Myles D. Carlson J. S. Holtaway J. T. Siedlecki
Last Known Address for above group:
2501 S. Blue Island Ave., Chicago, Illinois, from 1941,to 1956. Telephone number unknown.
1961-1966 1967-1974 1967-1970 1969-1970 1970-1971 1972-1975 1972-1976 1974-1977 1975-1976 1976-1977
J. B. Mahoney - C. H. Borcherding
N. J. Merczak S. Gotceitas F. L. Stanley F. T. Szum M. D. Gidley K. J. Krotz W. P. Osen T. Antonson
83
1976- 1987 1977- 1988 1977- 1978 1978- 1980 1979- Unknown
L. G. Wessa J. B. Mahoney R. H. Carpenter-Vance E. L. Miller
Last Known Addresses for above group:
C. H. Borcherding;
4550 W. 26th Street, Chicago, Illinois, from 1956 to November 1983. Telephone number unknown. 485 Frontage Road, Burr Ridge, Illinois 60521, from November 11,1983 to late 1980s. Telephone number unknown.
Abex does not know whether the above-referenced individuals are currently living or
deceased.
INTERROGATORY NO. 48: Identify any and all persons or entities, other than the employees listed above, which provided industrial hygienic or similar services or information to, or for the benefit of, this Defendant, at any time from 1940 to date, including, but not limited to, employees of, or anyone retained by, any predecessor or related company.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 48:
See Objections and Answer to Interrogatory No. 47, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 49; Does Defendant have, or has Defendant, any predecessor or any related company ever had, a Research Department? If so:
(a) State when such department was established, and whether or not such department has operated continuously since being established;
(b) State how much defendant, its predecessors and/or related company expended each year on research; and
(c) State the percentage of said expenditure which was for research concerning the health affects or asbestos;
(d) Identify the person(s) in charge of such department throughout its existence; and
(e) Identify the person(s) in charge of any asbestos-related rerearch conducted by 84
such department throughout the years. SECOND AMENDED ANSWER TO INTERROGATORY NO. 49: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery ofadmissible evidence. Abex objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney work-product doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege. Subject to and without waiving these objections, Abex maintained a corporate-wide research and development department. The purpose of this department included designing and developing new products for Abex. The duties and responsibilities of Abex's product research department were to ensure that Abex's friction products optimally performed the purpose for which they were designed, that is, to assist in the stopping or control of a moving object. Further information or materials related to this department lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
85
INTERROGATORY NO. SO: Did Defendant, any predecessor or any related company, or any medical department or industrial hygiene division thereof, maintain a medical and/or scientific library at any time from 1940 to the present? If so:
(a) State the dates such library existed;
(b) State the number of volumes maintained therein;
(c) State die number of employees, part-time or full-time, assigned to the
maintenance of said library; and
.
(d) - Identify the person(s) within the corporate structure to whom said library employees reported throughout the existence ofthe library.
SECOND AMENDED ANSWER TO INTERROGATORY NO. SO:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous.
Abex also objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the ground
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. To the extent to which it purports to seek information or
materials regarding the working conditions of Abex employees, this interrogatory is further
objected to on the grounds that such information or materials lack relevance to the issues arising
in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex objects to this interrogatory on the grounds that the information or materials it purports to
seek otherwise lack relevance to the issues arising in these cases and are not reasonably
calculated to lead to the discovery of admissible evidence.
Subject to and without waiving these objections, Abex did not maintain an official
medical library, although its medical department did have various books and publications
86
relevant to industrial medicine. Abex is aware that it received the American Industrial Hygiene
Association Journal and the Journal of Occupational Medicine. Occupational Health and Safety.
Any such books, articles, and journals, if they exist, are currently maintained at Abex's facility in
Brooklyn, New York.
INTERROGATORY NO. 51: Identify any and all scientific or medical periodicals to which defendant, any predecessor or any related company, or any medical department or industrial hygiene division thereof, subscribed from 1940 to the present, and for each periodical state the dates of such subscriptions.
SECOND AMENDED ANSWER TO INTERROGATORY NO. SI:
See Objections and Answer to Interrogatory No. 50, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 52: Has Defendant^ any predecessor or any related company, at any time since 1940:
(a) been a member of a medical and/or scientific library or library association?
(b) been a member of any organization or association which maintained a medical and/or scientific library?
(c) been a member of any organization or association through which members obtained the use of, or access to, a medical and/or scientific library?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 52t
See Objections and Answer to Interrogatory No. 50, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 53: Ifyour answer to any subpart of Interrogatory No. 52 is "Yes,":
(a) Identify the library(ies) involved and state the years during which Defendant, its predecessor or related company was a member of, or otherwise had use of or access to said library; and
(b) If applicable, identify the organization or association through which Defendant, its predecessor or related company, obtained the use of or access to, such library(ies). 87
SECOND AMENDED ANSWER TO INTERROGATORY NO. 53: See Objections and Answer to Interrogatory No. 50, which are incorporated by reference as though set forth herein in full. INTERROGATORY NO. 54: Has Defendant, any predecessor or any related company, or any person or entity acting on behalf thereof, including but not limited to, any insurance company, at any time, conducted any industrial hygiene surveys concerning any product identified in response to Interrogatory No. 19, including, but not limited to, surveys concerning the manufacture, processing, application, installation, use and/or removal of said products? SECOND AMENDED ANSWER TO INTERROGATORY NO. S4: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is limited to the years between 1930 and 1980. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods, products and work sites that are not at issue in these cases, on
* - \
the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney work-product doctrine, the rule protecting materials prepared in anticipation of and/or in connection with
88
litigation, or any other applicable privilege. Subject to and without waiving these objections, and insofar as Abex understands this
interrogatory, yes. INTERROGATORY NO. SS: Ifyour answer to Interrogatory No. 54 "Yes," with respect to each such survey:
(a) Identify the produces) which was used in the survey; (b) Identify any and all person(s), firm(s) or entity(ies) conducting or participating in
the conducting of said survey; (c) State the date(s) of said survey; (d) Describe the methodology, results and conclusions of said survey; (e) Identify any and all documents referring to, relating to, or reflecting said survey or
the results and conclusions thereof; and, (f) Identify any and all persons to whom such document may have been sent. SECOND AMENDED ANSWER TO INTERROGATORY NO. SS; Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory oh the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory to the extent to which it purports to seek information or
89
materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney work-product doctrine, the rule protecting materials prepared in anticipation ofand/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections: SECOND AMENDED ANSWER TO INTERROGATORY NO. 55 SUBPART frt; To the best of current and reasonably available information and belief, industrial hygiene surveys were conducted at Abex facilities. SECOND AMENDED ANSWER TO INTERROGATORY NO. 55 SUBPART (bh To the best of current and reasonably available information and belief, industrial hygiene surveys were conducted at Abex facilities by Abex's industrial hygienists and their staff, and in at least one instance by an insurance carrier, in conjunction with Abex employees. SECOND AMENDED ANSWER TO INTERROGATORY NO. 55 (e) to ffl To the best of current and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations. Abex's lack ofpersonal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestos-containing automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for
90
Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity
91
to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, . on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on . the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions ofthe attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
92
the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court. INTERROGATORY NO. S6; Has Defendant, any predecessor or any related company, or any person or entity acting on behalf thereof, including but not limited to any insurance company, at any time, gone into any area where any product identified in response to Interrogatory Nos. 19 and 42 was being manufactured, used, applied or installed to perform a dust level count or similar test?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 56: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods, products and work sites that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney work-product doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege. Subject to and without waiving these objections, with respect to the manufacture of those products identified in Answer to Interrogatory No. 19, see Answer to Interrogatory No. 54; and with respect to the use, application, and installation of those products identified in Answer to
93
Interrogatory No. 19, to the best of current and reasonably available information and belief, no.
INTERROGATORY NO. 57: If your answer to Interrogatory No. 56 is "Yes," identify each such count or test performed, by stating when and where it was conducted, and with respect to each count or test so identified:
(a) Identify the product being manufactured, used, applied or installed;
(b) Identify each and every person who conducted, participated in conducting, or analyzed the results of, said count or test;
(c) State the purpose of said count or test;
(d) State what, if any, actions were taken in response to the results of said count or test; and
(e) Identify any and all documents referring to, relating to or reflecting said count or test, including, but not limited to, any actions take; in response to the results of such count or test.
SECOND AMENDED ANSWER TO INTERROGATORY NO, 57:
See Objections and Answer to Interrogatory No. 56, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 58: Has Defendant, any predecessor or any related company, or any person or entity acting on behalf thereof, at any time, conducted any study(ies), of any kind, concerning the effects ofthe inhalation of asbestos dust or asbestos fibers on one using or being exposed to asbestos or any asbestos-containing product, including, but not limited to, those identified in response to Interrogatory Nos. 19 and 42?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 58;
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing causation from plaintiffs to Abex.
Abex further objects to this interrogatory to the extent it purports to seek information or
94
materials regarding time periods and products that are not at issue in these cases, on the ground that such information or materials lack relevance and are not reasonably calculated to lead to the discovery ofadmissible evidence. To the extent to which it purports to seek information or materials regarding the working conditions of Abex employees, this interrogatory is objected to on the grounds that such information or materials lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex also objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex further objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation ofand/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and insofar as it understands this interrogatory, Abex is generally aware that it contributed monies for certain studies at the Saranac Laboratory, Saranac, New York. Abex's documents reflect that any such studies performed by the Saranac Laboratory on behalf of Abex specifically pertained to siderosis and silicosis studies. Plaintiffs' counsel in a different case have produced in discovery unauthenticated photocopies of documents purporting to show that Abex agreed in the I930's to pay $250 per year for three years with respect to a single asbestos-related animal study at the Saranac Laboratory. Abex's records do not confirm any such agreement, nor do Abex's records
95
reflect any such payment. To the best of current knowledge and belief, Abex has found no such documents or any record of having received such documents. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestos-containing automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of
96
)
the Abex document repository has been prepared and to the best of Abex's knowledge, no such
document exists. In the past, Abex has provided parties with a document entitled "Finding Aid."
The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge,
it reflects the general nature of the contents of boxes of documents and provided with the
intention of affording parties a reasonable opportunity to examine, audit, and inspect the records
contained in the repository for purposes of copying or preparing their own abstracts or
summaries. There was never a central corporate filing system of Abex records and documents.
Therefore,, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is
substantially the same for plaintiffs as Abex.
;:
..
Pursuant to Illinois Rules of Civil Procedures, plaintiffs will have a reasonable
opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries
of these boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn,
New York, where they are maintained in the normal course ofbusiness, should plaintiffs decide
to inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims
privilege. In the past, when Abex has had cause to review some boxes of documents, it has
segregated and/or tagged certain documents with respect to which it claims privilege. The best
specificity that Abex can presently provide as to the documents with respect to which it claims
privilege is as follows: Documents passing between Abex and/or its predecessors or divisions,
on the one hand (collectively "Abex"), and their attorneys, both outside and in-house counsel, on
the other hand, as well as documents prepared at the request of, or for the benefit of such counsel
or setting forth mental impressions of the attorneys on matters concerning Abex. These
97
documents, include, but are not limited to, correspondence, memoranda, notes of telephone
conversations and other records relating to workers' compensation and personal injury issues,
claims and litigation (asbestos and non-asbestos related); environmental issues, claims and
litigation; insurance coverage issues, claims and litigation; real estate issues, claims and
litigation; real estate and business transactions; labor and employment issues, claims and
litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or
management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herselfof the offer to inspect the documents, Abex will
remove any documents with respect to which it claims privilege, on a box-by-box basis, and will
prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
the documents were inspected. Any dispute as to the propriety of any objection can thereafter be
resolved by the Court.
INTERROGATORY NO. 59: If your answer to interrogatory No. 58 is "Yes," with respect to each such study:
(a) Describe the nature of said study, including, but not limited to, the purpose and objectives of the study, the product(s) involved, the date(s) conducted, the methodology employed and the results reached, both raw data and conclusions;
(b) Identity any and all entities and/or persons conducting said study or participating in the conducting of said study;
(c) Identify any and all documents referring to, relating to or reflecting said study, including but not limited to reports (both interim and final), notes, memoranda, work paper, data compilations and surveys;
(d) Identify any an all directors, officers, agents or employees of Defendant who participated in the decision to have the study conducted; and,
(e) Identify any and all entities and/or persons who received a copy of any document referring to, relating to or reflecting the results or conclusions reached.
98
SECOND AMENDED ANSWER TO INTERROGATORY NO. S9:
See Objections and Answer to Interrogatory No. 58, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 60: Did Defendant, its predecessor or related company, take any action as a result of any study or studies set forth in response to Interrogatory Nos. 56 and 58? If so, identify each and every study which resulted in some action being taken, and:
(a) Describe the actions taken, including the effective date of said actions:
(b) Identify any and all persons, including, but not limited to, directors, officers, agents and employees of Defendant who participated in the decision to undertake said actions; and
(c) Identify any and all documents referring to, relating to or reflecting said actions, or any subsequent modification or discussion of the same.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 60:
See Objections and Answer to Interrogatory Nos. 56 and 58, which are incorporated by
reference as though set forth herein in full.
INTERROGATORY NO. 61: Has Defendant, any predecessor, or any related company, or any person or entity acting on behalf thereof, at any time, conducted any study(ies) designed to minimize or eliminate the inhalation of asbestos dust and fibers by those using, handling or exposed to any product listed in response to Interrogatory Nos. 19 and 42?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 61;
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing causation from plaintiffs to Abex.
Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the grounds
99
that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex also objects to this interrogatory on the ground that it is speculative inasmuch as it fails to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types of asbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive and/or railroad friction products was chrysotile, the only type of asbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects.
Abex further objects to this interrogatory on the ground that it seeks to impose upon Abex a legal duty or obligation to which it was not subject.
Abex objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney work-product doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, insofar as Abex understands this interrogatory, and to the best of current and reasonably available information and belief, no. INTERROGATORY NO. 62: If your answer to Interrogatory No. 61 is "Yes," with respect to each such study:
(a) Identify the product involved; 100
(b) Identify the person(s) and/or entity(ies) conducting said study;
(c) State the date said study began and the date on which it was completed;
(d) Identify any and ail persons, including, but not limited to, directors, officers, agents or employees of Defendant, who participated in the. decision to have said study conducted;
(e) Describe the nature of said study;
(f) Describe the nature of any action to eliminate or minimize inhalation of asbestos dust or asbestos fibers undertaken as a result of said study;
(g). Identify any and all documents referring to, relating to or reflecting said study or the results thereof; and,
(h). Identify any and all persons receiving a copy of any document referring to, relating to or reflecting the results or conclusions of said study.
SECOND AMENDED ANSWER TO INTERROGATORY NO, 62t
See Objections and Answer to Interrogatory No. 61, which are incorporated by reference
as though set forth herein in lull.
INTERROGATORY NO. 63: Did Defendant, any related company, or any predecessor at any time, give to persons, who would be applying and/or removing any ofthe products listed in response to Interrogatory Nos. 19 and 42, any instructions or guidelines concerning precautions, warnings, procedures, and/or methods to use, in order to safely apply or remove such products? If so, describe such instructions, state to whom they were given, state the dates they were given, and describe the manner in which they were given.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 63:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing causation from plaintiffs to Abex.
101
Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the ground
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the
information or materials it purports to seek otherwise lack relevance to the issues arising in these
cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex also objects to this interrogatory on the ground that it seeks to impose upon Abex a
legal duty or obligation to which it was not subject.
Subject to and without waiving these objections, in the mid-1970s, and perhaps earlier,
Abex commenced the placement of warning labels on its asbestos-containing automotive friction
products. This label read as follows:
CAUTION: CONTAINS ASBESTOS FIBERS. AVOID CREATING DUST. BREATHING ASBESTOS DUST MAY CAUSE SERIOUS BODILY HARM.
'
Abex does not believe the wording of this warning was ever changed. To the best of current and
reasonably available information and belief, the warning labels were affixed to automotive
friction product packages.
In 1979 and 1982, Abex participated in the preparation and distribution of a pamphlet
published by the Friction Materials Standards Institute, Inc. entitled "Recommended Procedures
for Reducing Asbestos Dust During Brake Servicing." An excerpt of this pamphlet s reprinted
below:
RECOMMENDED PROCEDURES FOR REDUCING ASBESTOS DUST DURING BRAKE SERVICING
Because studies have indicated that exposure to excessive amounts of asbestos dust may be a potential health hazard, OSHA has set maximum levels to which workers
102
may be exposed. Since most automotive friction materials normally contain a sizable amount of asbestos, it is important that people who handle brake linings and clutch facings understand the nature of the problem and know the precautions to be taken.
1) Areas where brake work is done should be set aside if possible, and entrances should be posted with an asbestos exposure sign as follows:
ASBESTOS DUST HAZARD AVOID BREATHING DUST WEAR ASSIGNED PROTECTIVE EQUIPMENT DO NOT REMAIN IN AREA UNLESS YOUR WORK REQUIRES IT BREATHING ASBESTOS DUST MAY BE HAZARDOUS
TO YOUR HEALTH
The amount of asbestos in the dust brake lining wear is normally at an extremely low level because ofchemical breakdown during use, and if machining of friction material does not take place, simple procedures will minimize exposure.
2) During brake servicing, the mechanic should wear a respirator approved by NIOSH for asbestos dust. It should be worn during all procedures starting with the removal of wheels and including reassembly.
3) When removing worn friction materials, remove the accumulated dust in the assemblies with an industrial vacuum cleaner equipped with a high efficiency filter system. Ifsuch equipment is not available, dust can be removed with a damp cloth. Do not use compressed air or dry brushing for cleaning unless the assembly is enclosed and properly exhausted.
4) Whenever possible, purchase friction materials pre-ground and ready for installation. If matching is necessary, the precautions which must be taken are of extreme importance. This is the operation in brake service when exposure to asbestos dust may be at its highest. This increases the difficulty in complying with the OSHA standards. In addition to the approved respirator, there must be local exhaust ventilation such that worker exposures are maintained below the OSHA asbestos standards. If there is any question as to the efficiency of asbestos dust removal by the machine, the manufacturer should be contacted.
5) Industrial vacuum cleaner bags containing asbestos dust and cloths used for wiping brake assemblies should be sealed in plastic bags and labeled with the following warning label printed in letters of sufficient size and contract to be readily visible and legible:
CAUTION CONTAINS ASBESTOS FIBERS
AVOID CREATING DUST BREATHING ASBESTOS DUST MAY
CAUSE SERIOUS BODILY HARM
103
AH asbestos waste should be disposed of in accordance with OSHA and EPA asbestos regulations. During removal ofvacuum bags, an approved respirator, as described in (2) above, should be worn.
6) Good housekeeping is essentia) in a workplace where asbestos-containing . materials are handled. Industrial vacuum cleaners equipped with multiple stage, high efficiency filters should be used for removing accumulations of asbestos dust and waste. Never use compressed air or dry sweeping for cleaning. Water or other dust suppressants should be applied ifbrooms are used.
7) Good personal hygiene practices are important in minimizing asbestos dust exposure. Do not smoke. Wash before eating. Shower after work. Change to work clothes upon arrival at work and change from work clothes at conclusion of work. Work clothing should not be taken home. Laundering asbestos contaminated clothing shall be done so as to prevent release of airborne asbestos fibers in excess of the exposure limits.
CAUTION: DO NOT BREATH ASBESTOS
INTERROGATORY NO, 64: Did Defendant, any predecessor or any related company, at any time, place any warning signs or labels on the containers in which any or the products listed in response to Interrogatory Nos. 19 and 42 were packaged?
SECOND AMENDED ANSWER TO INTERROGATORY NO, 64:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing causation from plaintiffs to Abex.
Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the ground
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the
information or materials it purports to seek otherwise lack relevance to the issues arising in these
cases and are not reasonably calculated to lead to the discovery of admissible evidence.
104
Abex also objects to this interrogatory on the ground that it seeks to impose upon Abex a
legal duty or obligation to which it was not subject.
Subject to and without waiving these objections, in the mid-1970s, and perhaps earlier.
Abex commenced the placement of warning labels on its asbestos-containing automotive friction
products. This label read as follows:
CAUTION: CONTAINS ASBESTOS FIBERS. AVOID CREATING DUST. BREATHING ASBESTOS DUST MAY CAUSE SERIOUS BODILY HARM.
Abex does not believe the wording of this warning was ever changed.
INTERROGATORY NO. 65: Ifyour answer to Interrogatory No. 64 is "Yes," identify each and every product upon which such a warning was placed, and with respect to each such product identified:
(a) State the date on which any order directing that a warning be placed on said product first issued;
(b) Identify any and all persons participating in the decision to issue that order,
(c) State the first date on which such warning was actually placed on said product;
(d) State the first date on which such product accompanied by such warning was first sold, distributed or installed;
(e) State the exact wording of this first warning;
(0 State the exact location and size of this first warning as it appeared on said product;
(g) Identify any and all persons who participated in any phase of the drafting or design of said first warning, including, but not limited to, those who performed the actual drafting and design work, those who reviewed the work, those who edited the work and those who approved the warning;
(h) State why you placed such warning on said product, including, but not limited to, whether you placed such warning on said product because you received a directive, command, suggestion, legal opinion, or any type of communication (written or otherwise) from any person, firm, corporation, governmental agency, committee, association, attorney or institute; and 105
(i) Identify any and all documents referring to, relating to or reflecting, said warning, its drafting, and/or the decision to place the warning on said product, including, but not limited to, any communication as described in subpart (h) of this interrogatory.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 65:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing causation from plaintiffs to Abex.
.
Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the ground
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the
information or materials it purports to seek otherwise lack relevance to the issues arising in these
cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex also objects to this interrogatory on the ground that it seeks to impose upon Abex a
legal duty or obligation to which it was not subject.
Subject to and without waiving these objections, and to the best of current and reasonably
available information and belief, the warning labels were affixed to automotive friction product
cardboard packaging. Abex can make available for inspection photographs of the warning labels
that were affixed to Abex's automotive friction product sample cardboard box packaging, which
are in the possession of Abex's counsel at a mutually convenient time, upon receipt of an
appropriate worded document request.
106
INTERROGATORY NO. 66: With respect to each product identified in response to Interrogatory No. 65 as having been accompanied by a warning, state whether, subsequent to the first warning described, above, any different warning was ever placed upon said product. Any alteration, change or modification in the language, working, capitalization, punctuation, style of type or printing, size, color, or location on the package or container, of the warning constitutes a different warning.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 66:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing causation from plaintiffs to Abex.
Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the ground
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the
information or materials it purports to seek otherwise lack relevance to the issues arising in these
cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex also objects to this interrogatory on the ground that it seeks to impose upon Abex a
legal duty or obligation to which it was not subject.
Subject to and without waiving these objections, and to the best of current and reasonably
available information and belief, no.
INTERROGATORY NO. 67; With respect to each different warning which accompanied each product listed in response to Interrogatory No. 65:
(a) State the date on which any order directing that such different warning be placed on said product first issued;
(b) Identify any and all persons participating in the decision to issue that order. 107
(c) State the first date on which such different warning was actually placed on said product;
(d) State the first date on which such product accompanied by such different warning was sold, distributed or installed;
(e) Describe, with specificity, any and all changes, modifications or differences between the different warning and the prior wamings(s);
(f) Identify any and all persons who participated in any phase of the drafting or design of such different warning, including, but not limited to, those who performed the actual drafting and design work, those who reviewed the work, those who edited the work and those who approved the different warning;
(g) State why you placed such different warning on said product, including, but not limited to, whether you placed such different warning on said product because you received a directive, command, suggestion, legal opinion, or any type of communication (written or otherwise) from any person, firm corporation, governmental agency, committee, association, attorney or institute; and
(h) Identify any and all documents referring to, relating to or reflecting, said different warning, its drafting, and/or the decision to place the different warning on said product.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 67:
Not applicable.
INTERROGATORY NO, 68; Prior to the date on which Defendant first directed that a warning accompany any product identified in response to Interrogatory Nos. 19 and 42, did any person, firm, organization or other entity, within or without your employ, suggest, recommend, counsel, advise, or otherwise indicate in any manner, that a warning should accompany any or all of such products or asbestos-containing products generally?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 68:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this inten-ogatory on the ground that it purports to shift the burden of
108
establishing causation from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the ground that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex also objects to this interrogatory on the ground that it seeks to impose upon Abex a legal duty or obligation to which it was not subject.
Subject to and without waiving these objections, and to the best of current and reasonably available information and belief, in the mid-1970s, and perhaps earlier, Abex commenced the placement of warning labels on its asbestos-containing automotive friction products. Any discussion of warning labels for friction materials at a Friction Materials Standard Institute, Inc. meeting may have taken place after Abex commenced placement of warning labels on its asbestos-containing products. INTERROGATORY NO. 69: If you answer to Interrogatory No. 68 is "Yes," with respect to each such suggestion, recommendation, counseling, advice or other indication:
(a) Identify the person(s) and/or entity(ies) giving the same; (b) State the date(s) on which the same was given; (c) Identify any and all persons receiving notice of the same; (d) Describe what, if any, action Defendant took in response to or upon the same; and, (e) Identify any and all documents referring to, relating to or reflecting the same, or
any action taken thereon or in response thereto.
109
SECOND AMENDED ANSWER TO INTERROGATORY NO. 69;
See Objections and Answer to Interrogatory No. 68, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO, 70: Did Defendant, any predecessor, or any related company ever place any warning directly upon any of the products listed in response to Interrogatory Nos. 19 and 42?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 70:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing causation from plaintiffs to Abex.
:
Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the ground
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the
information or materials it purports to seek otherwise lack relevance to the issues arising in these
cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex also objects to this interrogatory on the ground that it seeks to impose upon Abex a
legal duty or obligation to which it was not subject. .
Abex further objects to this interrogatory to the extent to which it purports to seek
information or materials that have been gathered, received, or prepared in the course of litigation,
or which are otherwise subject to the attorney-client privilege, protected by the attorney work-
product doctrine, the rule protecting materials prepared in anticipation of and/or in connection
110
with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and to the best of current and reasonably
available information and belief, unknown. Abex has made a reasonable and good faith effort to
obtain the requested information, to the extent that it is not equally available to plaintiffs, by
making a good faith search oflocations where documents containing this information, if it exists,
should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the
manufacture and sale of asbestos-containing railroad friction products in 1977 and
asbestos-containing automotive friction products in 1987 and no longer operates any friction
product manufacturing facilities. There are no current Abex employees, officers who worked for
Abex, or directors who sat on its Board during the period Abex manufactured and sold friction
products with personal knowledge of the information contained in all the records and documents
that might be responsive to this interrogatory.
. Abex's corporate existence spans a period of more than one hundred (100) years, during
which time it underwent numerous changes in its corporate structure, management, headquarters
and name. The volume of records generated, and documents accumulated, during that time was
enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such
records and documents, or that it otherwise has knowledge of the information contained in all
such records and documents.
.
The existing business records and documents of Abex, which number in excess of seven
(7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved
in the order in which they were found. No summary, abstract, or compilation of the contents of
111
the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedures, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and in-house counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These
112
documents, include, but are not limited to, correspondence, memoranda, notes of telephone
conversations and other records relating to workers' compensation and personal injury issues,
claims and litigation (asbestos and non-asbestos related); environmental issues, claims and
litigation; insurance coverage issues, claims and litigation; real estate issues, claims and
litigation; real estate and business transactions; labor and employment issues, claims and
litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or
management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will
remove any documents with respect to which it claims privilege, on a box-by-box basis, and will
prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
the documents were inspected. Any dispute as to the propriety of any objection can thereafter be
resolved by the Court.
.
'
INTERROGATORY NO. 71: If your answer to interrogatory No. 70 is "Yes," identify each and every product upon which such a warning was placed and for each such product identified:
(a) State, verbatim, each and every warning which ever appeared on said product;
(b) State the size, color and location of each such warning and describe the manner in which it was placed upon the product;
(e) State the dates on which each such warning first and last appeared in said product; and,
(0 Identify any and all documents referring to, relating to or reflecting the placing of any warning directly upon said products, including, but not limited to, decisions not to place such a warning.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 71:
See Objections and Answer to Interrogatory No. 70, which are incorporated by reference
113
as though set forth herein in full. INTERROGATORY NO. 72; Did any warning of any type concerning the products listed in response to Interrogatory Nos. 19 and 43 ever appear in any sales literature or other materials distributed or provided by Defendant, any predecessor or any related company, to the purchasers, consumers and/or users of such products?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 72; Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack, relevance to the issues arising in
i
these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the ground that it seeks to impose upon Abex a legal
duty or obligation to which it was not subject. Subject to and without waiving these objections, documents generally meeting the
description of promotional and advertising materials, as well as sales brochures and pamphlets are maintained in the normal course of business at Abex's document repository, where nonprivileged documents will be made available for inspection and copying upon request at a mutually convenient time.
Further, in 1979 and 1982, Abex participated in the preparation and distribution of a pamphlet published by the Friction Materials Standards Institute, Inc. entitled "Recommended
114
Procedures for Reducing Asbestos Dust During Brake Servicing." An excerpt of this pamphlet is
reprinted below:
RECOMMENDED PROCEDURES FOR REDUCING ASBESTOS DUST DURING BRAKE SERVICING
Because studies have indicated that exposure to excessive amounts of asbestos dust may be a potential health hazard, OSHA has set maximum levels to which workers may be exposed. Since most automotive friction materials normally contain a sizable amount of asbestos, it is important that people who handle brake linings and clutch facings understand the nature of the problem and know the precautions to be taken.
1) Areas where brake work is done should be set aside if possible, and entrances should be posted with an asbestos exposure sign as follows:
ASBESTOS DUST HAZARD AVOID BREATHING DUST WEAR ASSIGNED PROTECTIVE EQUIPMENT DO NOT REMAIN IN AREA UNLESS YOUR WORK REQUIRES IT BREATHING ASBESTOS DUST MAY BE HAZARDOUS
TO YOUR HEALTH
The amount of asbestos in the dust brake lining wear is normally at an extremely low level because ofchemical breakdown during use, and if machining of friction material does not take place, simple procedures will minimize exposure.
2) During brake servicing, the mechanic should wear a respirator approved by NIOSH for asbestos dust. It should be worn during ail procedures starting with the removal of wheels and including reassembly.
3) When removing worn friction materials, remove the accumulated dust in the assemblies with an industrial vacuum cleaner equipped with a high efficiency , filter system. Ifsuch equipment is not available, dust can be removed with a damp cloth. Do not use compressed air or dry brushing for cleaning unless the assembly is enclosed and properly-exhausted.
4) Whenever possible, purchase friction materials pre-ground and ready for installation. If matching is necessary, the precautions which must be taken are ofextreme importance. This is the operation in brake service when exposure to asbestos dust may be at its highest. This increases the difficulty in complying with the OSHA standards. In addition to the approved respirator, there must be local exhaust ventilation such that worker exposures are maintained below the OSHA asbestos standards. If there is any question as to the efficiency ofasbestos dust removal by the machine, the manufacturer should be contacted.
5) industrial vacuum cleaner bags containing asbestos dust and cloths used for
115
wiping brake assemblies should be sealed in plastic bags and labeled with the following warning label printed in letters ofsufficient size and contract to be readily visible and legible:
CAUTION CONTAINS ASBESTOS FIBERS
AVOID CREATING DUST ` BREATHING ASBESTOS DUST MAY
CAUSE SERIOUS BODILY HARM
All asbestos waste should be disposed of in accordance with OSHA and EPA asbestos regulations. During removal of vacuum bags, an approved respirator, as described in (2) above, should be worn.
6)
' . 7)
Good housekeeping is essential in a workplace where asbestos-containing materials are handled. Industrial vacuum cleaners equipped with multiple stage, high efficiency filters should be used for removing accumulations of asbestos dust and waste. Never use compressed air or dry sweeping for cleaning. Water or other dust suppressants should be applied if brooms are used.
Good personal hygiene practices are important in minimizing asbestos dust exposure. Do not smoke. Wash before eating. Shower after work. Change to work clothes upon arrivat at work and change from work clothes at conclusion of work. Work clothing should not be taken home. Laundering asbestos contaminated clothing shall be done so as to prevent release of airborne asbestos fibers in excess ofthe exposure limits.
CAUTION: DO NOT BREATH ASBESTOS
INTERROGATORY NO. 73: If your answer to Interrogatory No. 72 is "Yes," identify each and every item of sales literature or other materials in which such a warning appeared, and for each item so identified:
(a) State the date on which said item was first provided to distributors, sellers, purchasers, consumers or users;
. (b) List the products discussed in the literature;
(c) Identify any and all other sales literature concerning the products listed in
response to Interrogatory Nos. 19 and 42 which was provided to distributors,
sellers, purchasers, consumers or users after the above date and which contained
no warning.
,
116
SECOND AMENDED ANSWER TO INTERROGATORY NO. 73:
See Objections and Answer to Interrogatory No. 72, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 74: Does Defendant or any related company have any of the following in its possession, custody or control:
(a) any package, container, label or item of sales literature which Defendant ctaims constitutes or contains any warning which ever accompanies any product listed in response to Interrogatory Nos. 19 and 42?
(b) any picture, photograph or like reproductive representation ofany item described in subpart (a)?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 74:
See Objections and Answer to Interrogatory No. 72, which are incorporated by reference
as though set forth herein in lull.
INTERROGATORY NO. 75: State the year the Defendant or any predecessor(s) was first advised of either threshold limit values or maximum allowable concentrations of both asbestos dust and total dust, promulgated by the American Conference of Governmental Industrial Hygienists, and identify the specific persons) receiving such advise [sic], and any and all documents communicating such advise.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 75:
Abex objects to this interrogatory on the grounds that it is over broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the grounds that the information or materials it
purports to seek lack relevance to the issues arising in these cases and are not calculated to lead
to the discovery of admissible evidence. To the extent it purports to seek information or
materials regarding the working conditions of Abex employees, this interrogatory is further
objected to on the grounds that such information or materials lack relevance to the issues arising
117
in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the ground that it is speculative inasmuch as it fails
to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types ofasbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive and/or railroad friction products was chrysotile, the only type of asbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects.
Subject to and without waiving these objections, Abex is unaware of when it was first advised ofeither threshold limit values or maximum allowable concentrations of both asbestos dust and total dust. Lloyd Hamlin served as Abex's Medical Director from 1941 to 1961. Dr. Hamlin published an article in 1955, referring therein to maximum allowable concentrations for Various substances. Dr. Hamlin is deceased and Abex has no way to determine when, if ever, he or any other Abex official first received information responsive to this interrogatory. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex,
118
or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
. Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in ail such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
There are approximately 15 to 25 boxes, many of which are comprised of approximately
119
2,000 to 3,000 pages, that contain the documents from which the answer to this interrogatory may be ascertained or derived, the subject matter of which includes but is not limited to the following:
1. Medical Department Records. Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them. Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and
120
litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or
management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will
remove any documents with respect to which it claims privilege, on a box-by-box basis, and will
prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
the documents were inspected. Any dispute as to the propriety of any objection can thereafter be
resolved by the Court.
INTERROGATORY NO. 76; State whether such threshold limit values or maximum
allowable concentrations referred to in Interrogatory No. 75 involved TOTAL dust or just
asbestos dust?
'
SECOND AMENDED ANSWER TO INTERROGATORY NO. 76;
See Objections and Answer to Interrogatory No. 75, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 77: Describe, in detail, any and all tests, if any, conducted by Defendant, any predecessor or any related company, or anyone acting on behalf thereof, concerning the quantity, quality or threshold limit values of asbestos dust or particles to which applicators or consumers of asbestos-containing products were exposed while using any product identified in response to Interrogatory Nos. 19 and 42, including:
(a) The product being used;
(b) Identify any and all person(s), firms) or entity(ies) conducting or participating in the conducting ofsaid test;
(c) State the dates) of said test:
(d) Describe the methodology, results and conclusions of said test;
(e) Identify any and all documents referring to, relating or reflecting said test or the results and conclusions thereof; and,
(f) Identify any and all persons to whom any document referring to, relating to or reflecting the results or conclusions of said test was sent.
121
SE' C..O...N.' D AM..E.FN'D..E..D....A..N.. SWER..T. .O INTERROGAT.O...R...Y...N...O.. .- 7..7. : Abex objects to this interrogatory on the grounds that it is over broad, unduly
.
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the grounds
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that
the information or materials it purports to seek lack relevance to the issues arising in these cases
and are not calculated to lead to the discovery ofadmissible evidence.
Abex objects to this interrogatory on the ground that it purports to seek information
regarding entities other than Abex.
Abex also objects to this interrogatory to the extent to which it purports to seek
information or materials that have been gathered, received, or prepared in the course of litigation,
or which are otherwise subject to the attorney-client privilege, protected by the attorney work-
product doctrine, the rule protecting materials prepared in anticipation of and/or in connection
with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and to the best of current and reasonably
available information and belief, unknown. Abex has made a reasonable and good faith effort to
obtain the requested information, to the extent that it is not equally available to plaintiffs, by
making a good faith search of locations where documents containing this information, if it exists,
should be found, where appropriate, by inquiry to other natural persons or organizations.
122
Abex's lack of personal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation ofthe contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists, in the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best ofAbex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or
123
summaries. There was never a centra] corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive fist or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or
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management; as well as other legal issues, transactions and claims. When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will
remove any documents with respect to which it claims privilege, on a box-by-box basis, and will
prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
the documents were inspected. Any dispute as to the propriety of any objection can thereafter be
resolved by the Court. INTERROGATORY NO. 78: Did Defendant, any predecessor or any related company, at any time, directly advise the owners or management employees ofany worksite in which it sold or applied any product listed in response to interrogatory Nos. 19 and 43, of threshold limit values for exposure to asbestos dust recommended by the American Conference of Governmental Industrial Hygienist? If so, state the date or dates that you so advised each such owner or employees, the manner in which you advised such owner or employee and the name of each such owner or employee.
SECOND AMENDED ANSWER TO INTERROGATORY NO, 78: Abex objects to this interrogatory on the grounds that it is over broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery ofadmissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases
and are not calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the ground that it purports to seek information
regarding entities other than Abex.
Abex also objects to this interrogatory to the extent to which it purports to seek
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information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and to the best of current and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the .manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such ' records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
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The existing business records and documents ofAbex, which number in excess ofseven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best ofAbex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid " The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention ofaffording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes ofcopying or preparing their own abstracts or summaries. There was never a central corporate filing system ofAbex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions.
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on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes oftelephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himselfor herself ofthe offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiffwithin sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court. INTERROGATORY NO. 79: State the date on which any official of Defendant or its predecessors) first had knowledge, notice, information or understanding that exposure to asbestos would, could or might cause each of the following diseases:
(a) Pleural disease; (b) Asbestosis; (c) Mesothelioma; (d) Lung cancer; (e) Any other forms of cancer.
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SECOND AMENDED ANSWER TO INTERROGATORY NO. 79; Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of establishing causation from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. To the extent it purports to seek information or materials regarding the working conditions of Abex employees, this interrogatory is objected to on the grounds that such information or materials lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex also objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the ground that it is speculative inasmuch as it fails to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types of asbestos fibers. Because the asbestos fiber contained in Abex's asbestoscontaining automotive and/or railroad friction products was chrysotile, the only type ofasbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects.
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Abex also objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, Lloyd Hamlin served as Abex's Medical Director between 1941 and 1961. Dr. Hamlin published an article in 1946 in which he referenced asbestosis. Dr. Hamlin is deceased and Abex has no way to determine when, ifever, he or any other Abex official first received information responsive to this interrogatory. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search oflocations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the manufacture and sale ofasbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge ofthe information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters
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and name. The volume ofrecords generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge ofthe information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes ofdocuments and provided with the intention ofaffording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
There are approximately 15 to 25 boxes, many ofwhich are comprised ofapproximately 2,000 to 3,000 pages, that contain the documents from which the answer to this interrogatory may be ascertained or derived, the subject matter of which includes but is not limited to the following:
1. Medical Department Records. Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity
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to examine, audit, inspect and to make copies, compilations, abstracts, or summaries ofthese boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log ofthe documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on die one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real-estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himselfor herselfofthe offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
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the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court. INTERROGATORY NO. 80: With respect to each disease set forth in Interrogatory No. 79:
(a) Identity the official who first obtained the knowledge, notice, information or understanding to which the interrogatory refers;
(b) Identify any and all documents referring to, relating to or reflecting such knowledge, notice, information or understanding; and
(c) Describe what, if any, action said official, Defendant, any predecessor or any related company took in response to such knowledge, notice, information or understanding.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 80: See Objections and Answer to Interrogatory No. 79, which, are incorporated by reference as though set forth herein in full. INTERROGATORY NO. 81: Does Defendant possess knowledge or information concerning, a causal connection between exposure to asbestos or asbestos-containing products and: (a) Pleural disease? (b) Asbestosis? (c) Mesothelioma? (d) Lung cancer? (e) other cancer? SECOND AMENDED ANSWER TO INTERROGATORY NO. 81: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to call for an expert
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opinion or conclusion which Abex is unqualified to render. Abex further objects to this interrogatory on the ground that it purports to call for a
medical or scientific opinion or conclusion which Abex is unqualified to render. Abex objects to this interrogatory on the ground that it is speculative inasmuch as it fails
to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types ofasbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive and/or railroad friction products was chrysotile, the only type of asbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects.
Abex also objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, Lloyd Hamlin served as Abex's Medical Director between 1941 and 1961. Dr. Hamlin published an article in 1946 in which he referenced asbestosis. Dr. Hamlin is deceased and Abex has no way to determine when, if ever, he or any other Abex official first received information responsive to this interrogatory. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by
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inquiry to other natura] persons or organizations. Abex's lack of personal knowledge is due to the following: Abex discontinued the
manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume ofrecords generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents ofAbex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best ofAbex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature ofthe contents of boxes ofdocuments and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records
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contained in the repository for purposes of copying or preparing their own abstracts or
summaries. There was never a central corporate filing system of Abex records and documents.
Therefore, the burden ofderiving or ascertaining the answer to this interrogatory, if at all, is
substantially the same for plaintiffs as Abex.
There are approximately 15 to 25 boxes, many ofwhich are comprised of approximately
2,000 to 3,000 pages, that contain the documents from which the answer to this interrogatory
may be ascertained or derived, the subject matter ofwhich includes but is not limited to the
following:
1. Medical Department Records.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity
to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these
boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New .
York, where they are maintained in the normal course of business, should plaintiffs decide to
inspect them.
.
Abex has no comprehensive list or log ofthe documents with respect to which it claims
privilege. In the past, when Abex has had cause to review some boxes ofdocuments, it has
segregated and/or tagged certain documents with respect to which it claims privilege. The best
specificity that Abex can presently provide as to the documents with respect to which it claims
privilege is as follows: Documents passing between Abex and/or its predecessors or divisions,
on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on
the other hand, as well as documents prepared at the request of, or for the benefit of such counsel
or setting forth mental impressions of the attorneys on matters concerning Abex. These
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documents, include, but are not limited to, correspondence, memoranda, notes of telephone
conversations and other records relating to workers' compensation and personal injury issues,
claims and litigation (asbestos and non-asbestos related); environmental issues, claims and
litigation; insurance coverage issues, claims and litigation; real estate issues, claims and
litigation; real estate and business transactions; labor and employment issues, claims and
litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or
management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will
remove any documents with respect to which it claims privilege, on a box-by-box basis, and will
prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
the documents were inspected. Any dispute as to the propriety ofany objection can thereafter be
resolved by the Court.
INTERROGATORY NO, 82: For each subpart of Interrogatory No. 81 to which you answered "Yes":
(a) Describe when and how Defendant first obtained knowledge, or information concerning such connection;
(b) If such knowledge or information was obtained by attendance at any conference,
lecture, convention, symposium or meeting, identify such meeting, any and all
person attending, and any and all documents referring to, relating to or reflecting
the meeting;
.
(c) If knowledge was obtained from medical or scientific studies, or work, published or unpublished, identify the same.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 82;
See Objections and Answer to Interrogatory No.81, which are incorporated by reference
as though set forth herein in full.
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INTERROGATORY NO. 83: With regard to any knowledge or information obtained subsequent to that identified in your answer to Interrogatory No. 82 (a), identify any and all documents or communications (oral and/or written) concerning the causal connection between exposure to asbestos-containing or asbestos products and any disease, which were sent to, or received by. Defendant, and identify any and all persons conveying and/or receiving such communications.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 83:
See Objections and Answer to Interrogatory No. 81, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 84: As to any knowledge or information referred to in Interrogatories 79-83, did Defendant, at any time, educate or inform its employees, distributors, purchasers or any persons working in the vicinity where any asbestos-containing product was being applied or installed as to the hazards known to Defendant or about which Defendant had information, and as to the safety precautions necessary to guard against cancer and other diseases arising from the use and handling of the products identified in response to Interrogatory No. 19?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 84:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing causation from plaintiffs to Abex.
Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the ground
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. To the extent it purports to seek information or materials
regarding the working conditions of Abex employees, this interrogatory is objected to on the
grounds that such information or materials lack relevance to the issues arising in these cases and
are not reasonably calculated to lead to the discovery of admissible evidence. Abex also objects
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to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex further objects to this interrogatory on the grounds that it assumes the truth of matters not established or matters not in evidence.
Abex objects to this interrogatory on the ground that it seeks to impose upon Abex a legal duty or obligation to which it was not subject.
Abex also objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, in the mid-1970s, and perhaps earlier, Abex commenced the placement of warning labels on its asbestos-containing automotive friction products. This label read as follows:
CAUTION: CONTAINS ASBESTOS FIBERS. AVOID CREATING DUST. BREATHING ASBESTOS DUST MAY CAUSE SERIOUS BODILY HARM.
Abex does not believe the wording of this warning was ever changed. To the best ofcurrent and reasonably available information and belief, the warning labels were affixed to automotive friction product packages.
In 1979 and 1982, Abex participated in the preparation and distribution of a pamphlet published by the Friction Materials Standards Institute, Inc. entitled "Recommended Procedures
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for Reducing Asbestos Dust During Brake Servicing." An excerpt of this pamphlet is reprinted
below:
RECOMMENDED PROCEDURES FOR REDUCING ASBESTOS DUST DURING BRAKE SERVICING
Because studies have indicated that exposure to excessive amounts of asbestos dust may be a potential health hazard, OSHA has set maximum levels to which workers may be exposed. Since most automotive friction materials normally contain a sizable amount of asbestos, it is important that people who handle brake linings and clutch facings understand the nature of the problem and know the precautions to be taken.
1) Areas where brake work is done should be set aside ifpossible, and entrances should be posted with an asbestos exposure, sign as follows: v
ASBESTOS DUST HAZARD / , j AVOID. BREATHING DUST . WEAR ASSIGNED ErOTEGTTYE EQUIPMENT
DO NOT REMAIN IN AREA UNLESS YOUR WORK REQUIRES IT
BREATHING ASBESTOS DUST MAY BE HAZARDOUS TO YOUR HEALTH
The amount ofasbestos in the dust brake lining wear is normally at an extremely low level because ofchemical breakdown during use, and if machining of friction material does not take place, simple procedures will minimize exposure.
2) During brake servicing; the mechanic should wear a respirator approved by NIOSH for asbestos dust. It should be worn during all procedures starting with the removal of wheels and including reassembly.
3) When removing wom friction materials, remove the accumulated dust in the . assemblies with an industrial vacuum cleaner equipped with a high efficiency
filter system. Ifsuch equipment is not available, dust can be removed with a damp cloth. Do not use compressed air or dry brushing for cleaning unless the assembly is enclosed and properly exhausted.
4) Whenever possible, purchase friction materials pre-ground and ready for installation. If matching is necessary, the precautions which must be taken are of extreme importance. This is the operation in brake service when exposure to asbestos dust may be at its highest. This increases the difficulty in complying with the OSHA standards. In addition to the approved respirator, there must be local exhaust ventilation such that worker exposures are maintained below the OSHA asbestos standards. If there is any question as to the efficiency ofasbestos dust removal by the machine, the manufacturer should be contacted.
5) Industrial vacuum cleaner bags containing asbestos dust and cloths used for
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wiping brake assemblies should be sealed in plastic bags and labeled with the following warning label printed in letters of sufficient size and contract to be readily visible and legible:
CAUTION CONTAINS ASBESTOS FIBERS
AVOID CREATING DUST BREATHING ASBESTOS DUST MAY - CAUSE SERIOUS BODILY HARM
All asbestos waste should be disposed of in accordance with OSHA and EPA asbestos regulations. During removal ofvacuum bags, an approved respirator, as described in (2) above, should be worn.
6) Good housekeeping is essential in a workplace where asbestos-containing materials are handled. Industrial vacuum cleaners equipped with multiple stage, high efficiency filters should be used for removing accumulations of asbestos dust and waste. Never use compressed air or dry sweeping for cleaning. Water or other dust suppressants should be applied if brooms are used.
7) Good personal hygiene practices are important in minimizing asbestos dust exposure. Do not smoke. Wash before eating. Shower after work. Change to work clothes upon arrival at work and change from work clothes at conclusion ofwork. Work clothing should not be taken home. Launderingasbestos contaminated clothing shall be done so as to prevent release of airborne asbestos fibers in excess of the exposure limits.
CAUTION: DO NOT BREATH ASBESTOS
To the best ofcurrent and reasonably available information and belief, unknown. Abex
has made a reasonable and good faith effort to obtain the requested information, to the extent that
it is not equally available to plaintiffs, by making a good faith search of locations where
documents containing this information, if it exists, should be found, where appropriate, by
inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the
manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestos-
containing automotive friction products in 1987 and no longer operates any friction product
141
manufacturing facilities. There arc no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge ofthe information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume ofrecords generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation ofthe contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature ofthe contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
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Pursuant to Illinois Rules ofCivil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries ofthese boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions ofthe attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes oftelephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will
143
prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
the documents were inspected. Any dispute as to the propriety ofany objection can thereafter be
resolved by the Court.
INTERROGATORY NO. 85; If your answer to Interrogatory No. 84 is "Yes," identify each such occasion on which Defendant so educated or informed its employees, distributors or purchasers, as follows:
(a) Identify the persons or parties which you educated or informed;
(b) State when, where and in what manner they were educated or informed;
(c) Identify any and all documents referring to, relating to or reflecting the communication or other dissemination of such information; and
(d) Identify any and all persons who so educated or informed said employees, distributors, purchasers or persons working in the vicinity of application or who participated in the same in any way including, but not limited to, assembling, drafting, writing, rewriting, preparing or conveying such information in any format
SECOND AMENDED ANSWER TO INTERROGATORY NO. 85;
See Objections and Answer to Interrogatory No. 84, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 86: Did Defendant or any predecessor entity perform, direct to be performed, finance in whole or in part, sponsor in whole or in part or receive the results of, any studies or tests concerning the relationship between asbestos exposure and asbestosis, cancer and/or mesothelioma?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 86;
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing causation from plaintiffs to Abex.
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Abex further objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the ground that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. To the extent to which it purports to seek information or materials regarding the working conditions of Abex employees, this interrogatory is objected to on the grounds that such information or materials lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex also objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex further objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and insofar as it understands this interrogatory, Abex is generally aware that it contributed monies for certain studies at the Saranac Laboratory, Saranac, New York. Abex's documents reflect that any such studies performed by the Saranac Laboratoiy on behalf of Abex specifically pertained to siderosis and silicosis studies. Plaintiffs' counsel in a different case have produced in discovery unauthenticated photocopies of documents purporting to show that Abex agreed in the 1930's to pay $250 per year for three years with respect to a single asbestos-related animal study at the
145
Saranac Laboratory. Abex's records do not confirm any such agreement, nor do Abex's records
reflect any such payment. To the best ofcurrent knowledge and belief, Abex has found no such
documents or any record ofhaving received such documents. Abex has made a reasonable and
good faith effort to obtain the requested information, to the extent that it is not equally available
to plaintiffs, by making a good faith search of locations where documents containing this
information, if it exists, should be found, where appropriate, by inquiry to other natural persons
or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the
manufacture and sale of asbestos-containing railroad friction products in 1977 and
asbestos-containing automotive friction products in 1987 and no longer operates any friction
product manufacturing facilities. There are no current Abex employees, officers who worked for
Abex, or directors who sat on its Board during the period Abex manufactured and sold friction
products with personal knowledge ofthe information contained in alf the records and documents
that might be responsive to this interrogatory.
.
Abex's corporate existence spans a period ofmore than one hundred (100) years, during
which time it underwent numerous changes in its corporate structure, management, headquarters
and name. The volume of records generated, and documents accumulated, during that time was
enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such
records and documents, or that it otherwise has knowledge of the information contained in all
such records and documents.
The existing business records and documents of Abex, which number in excess of seven
(7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved
146
in the order in which they were found. No summary, abstract, or compilation ofthe contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best ofAbex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system ofAbex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, ifat all, is substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedures, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries ofthese boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log ofthe documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and in-house counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel
147
\
or setting forth mental impressions ofthe attorneys on matters concerning Abex. These
documents, include, but are not limited to, correspondence, memoranda, notes of telephone
conversations and other records relating to workers' compensation and personal injury issues,
claims and litigation (asbestos and non-asbestos related); environmental issues, claims and
litigation; insurance coverage issues, claims and litigation; real estate issues, claims and
litigation; real estate and business transactions; labor and employment issues, claims and
litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or
management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will
remove any documents with respect to which it claims privilege, on a box-by-box basis, and will
prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
the documents were inspected. Any dispute as to the propriety of any objection can thereafter be
resolved by the Court.
INTERROGATORY NO, 87: Ifyour answer to Interrogatory No. 86 is "Yes," with respect to each such study or test:
(a) State the nature ofthe involvement (performed, directed it to be performed, financed, sponsored, received results, etc.);
(b) State when, where and at what intervals said study was performed;
(c) Identify any and all persons, firms or entities which performed said study;
(d) Identify any all documents referring to, relating or reflecting or reflecting said
study or the results thereof; and
,
(e) State all means by which the results ofsaid study were disseminated including, if applicable, publication; and identify any and all persons who received said results and any and all publications in which said results appeared.
148
SECOND AMENDED ANSWER TO INTERROGATORY NO. 87: See Objections and Answer to Interrogatory No. 86, which are incorporated by reference as though set forth herein in full. INTERROGATORY NO 88: Did Defendant at any time during the period that the products listed in response to Interrogatory Nos. 19 and 42 were manufactured, sold, applied or installed, inform any purchaser or user of said products that such products could cause cancer, asbestosis, and/or other serious diseases? SECOND AMENDED ANSWER TO INTERROGATORY NO. 88: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of establishing causation from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the ground that such information or materials lack relevance and are not reasonably calculated to lead to the discovery ofadmissible evidence. To the extent it purports to seek information or materials regarding the working conditions of Abex employees, this interrogatory is objected to on the grounds that such information or materials lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex also objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery ofadmissible evidence. Abex further objects to this interrogatory on the grounds that it assumes the truth of
149
matters not established or matters not in evidence. Abex objects to this interrogatory on the ground that it seeks to impose upon Abex a legal
duty or obligation to which it was not subject. Abex also objects to this interrogatory to the extent to which it purports to seek
information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation ofand/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, in the mid-1970s, and perhaps earlier, Abex commenced the placement ofwarning labels on its asbestos-containing automotive friction products. This label read as follows:
CAUTION: CONTAINS ASBESTOS FIBERS. AVOID CREATING DUST. BREATHING ASBESTOS DUST MAY CAUSE SERIOUS BODILY HARM.
Abex does not believe the wording of this warning was ever changed. To the best of current and reasonably available information and belief, the warning labels were affixed to automotive
friction product packages. In 1979 and 1982, Abex participated in the preparation and distribution ofa pamphlet
published by the Friction Materials Standards Institute, Inc. entitled "Recommended Procedures for Reducing Asbestos Dust During Brake Servicing." An excerpt of this pamphlet is reprinted below:
RECOMMENDED PROCEDURES FOR REDUCING ASBESTOS DUST DURING BRAKE SERVICING
Because studies have indicated that exposure to excessive amounts of asbestos dust may be a potential health hazard, OSHA has set maximum levels to which workers
150
may be exposed. Since most automotive friction materials normally contain a sizable amount of asbestos, it is important that people who handle brake linings and clutch facings understand the nature of the problem and know the precautions to be taken.
1) Areas where brake work is done should be set aside if possible, and entrances should be posted with an asbestos exposure sign as follows:
ASBESTOS DUST HAZARD AVOID BREATHING DUST WEAR ASSIGNED PROTECTIVE EQUIPMENT DO NOT REMAIN IN AREA UNLESS YOUR WORK REQUIRES IT BREATHING ASBESTOS DUST MAY BE HAZARDOUS
TO YOUR HEALTH
The amount of asbestos in the dust brake lining wear is normally at an extremely low level because ofchemical breakdown during use, and if machining of friction material does not take place, simple procedures will minimize exposure.
2) During brake servicing, the mechanic should wear a respirator approved by NIOSH for asbestos dust. It should be worn during all procedures starting with the removal ofwheels and including reassembly.
3) When removing worn friction materials, remove die accumulated dust in the . assemblies with an industrial vacuum cleaner equipped with a high efficiency filter system. Ifsuch equipment is not available, dust can be removed with a damp cloth. Do not use compressed air or dry brushing for cleaning unless, the assembly is enclosed and properly exhausted.
4) Whenever possible, purchase friction materials pre-ground and ready for installation. Ifmatching is necessary, the precautions which must be taken are of extreme importance. This is the operation in brake service when exposure to asbestos dust may be at its highest. This increases the difficulty in complying with the OSHA standards. In addition to the approved respirator, there must be local exhaust ventilation such that worker exposures are maintained below the OSHA asbestos standards. Ifthere is any question as to the efficiency ofasbestos dust removal by the machine, the manufacturer should be contacted.
5) Industrial vacuum cleaner bags containing asbestos dust and cloths used for wiping brake assemblies should be sealed in plastic bags and labeled with the following warning label printed in letters ofsufficient size and contract to be readily visible and legible:
CAUTION CONTAINS ASBESTOS FIBERS
AVOID CREATING DUST BREATHING ASBESTOS DUST MAY
CAUSE SERIOUS BODILY HARM
151
All asbestos waste should be disposed of in accordance with OSHA and EPA asbestos regulations. During removal of vacuum bags, an approved respirator, as described in (2) above, should be worn.
6) Good housekeeping is essential in a workplace where asbestos-containing - , materials are handled. Industrial vacuum cleaners equipped with multiple stage, high efficiency filters should be used for removing accumulations of asbestos dust and waste. Never use compressed air or dry sweeping for cleaning. Water or other dust suppressants should be applied if brooms are used.
7) Good personal hygiene practices are important in minimizing asbestos dust exposure. Do not smoke. Wash before eating. Shower after work. Change to work clothes upon arrival at work and change from work clothes at conclusion of work. Work clothing should not be taken home. Laundering asbestos contaminated clothing shall be done so as to prevent release of airborne asbestos fibers in excess of the exposure limits.
CAUTION: DO NOT BREATH ASBESTOS
To the best ofcurrent and reasonably available information and belief, unknown. Abex
has made a reasonable and good faith effort to obtain the requested information, to the extent that
it is not equally available to plaintiffs, by making a good faith search of locations where
documents containing this information, if it exists, should be found, where appropriate, by
inquiry to other natural persons or organizations.
Abex's lack ofpersonal knowledge is due to the following: Abex discontinued the
manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestos-
containing automotive friction products in 1987 and no longer operates any friction product
manufacturing facilities. There are no current Abex employees, officers who worked for Abex,
of directors who sat on its Board during the period Abex manufactured and sold friction products
with personal knowledge of the information contained in all the records and documents that
might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during
152
which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation ofthe contents of the Abex document repository has been prepared and to the best ofAbex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature ofthe contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes ofcopying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries ofthese boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
153
Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions ofthe attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege tog on plaintiffwithin sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court. INTERROGATORY NO, 89: Did Defendant, any predecessor or any related company, or any workers' compensation insurance carrier thereof, ever have any claims for lung diseases or death from lung disease, whether directly or indirectly attributed to asbestosis, mesothelioma, lung cancer, or exposure to asbestos-containing products?
154
SECOND AMENDED ANSWER TO INTERROGATORY NO. 89: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the grounds that it is premature, overly broad, oppressive, harassing and unduly burdensome in that, to date, plaintiffs have failed to proffer any evidence showing the requisite nexus between plaintiffs and/or plaintiffs' decedents and any Abex product. Abex further objects to this interrogatory to the extent it purports to seek information or materials regarding time periods, products and medical conditions that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. To the extent it purports to seek information or materials regarding the working conditions of Abex employees, this interrogatory is objected to on the grounds that such information or materials lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery ofadmissible evidence. Abex also objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not calculated to lead to the discovery of admissible evidence. , Abex further objects to this interrogatory on the ground that plaintiffs do not allege plaintiffs and/or plaintiffs' decedents were employees of Abex or ever present at any Abex facility. Abex objects to this interrogatory on the ground that it is speculative inasmuch as it fails
155
to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types of asbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive and/or railroad friction products was chrysotile, the only type of asbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects.
Abex also objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Abex further objects to this interrogatory to the extent to which it purports to seek medical records or privileged personnel information, which Abex will not provide absent an appropriate waiver of the applicable privilege.
Asbestos-related worker's compensation claims filed by Abex employees may allegedly arise out of working conditions and involve materials not at all related to those at issue in the present cases. Moreover, a claim may be brought even where the alleged medical condition complained of relates to an employer other than Abex, but the claim is brought against Abex merely because it employed the claimant during the period the alleged condition was diagnosed or because Abex was the claimant's last employer. Furthermore, such claims are governed by standards of proof and theories of liability significantly different from those applicable to plaintiffs' claims in the present action.
156
Subject to and without waiving these objections, and based upon reasonably available . information and belief, the first two asbestos-related workers' compensation claims made against Abex are as follows:
Notice Received Approx: 1979 Approx. 1980
Alleged Injury Asbestosis Asbestosis
Claimant Riley, Joseph Lane, Jennings L.
Although some later additional asbestos-related workers' compensation claims were filed
against Abex, the defendant lacks sufficient reasonably available information to provide details
regarding the nature or the time frame of these claims. The following is a list ofthe first ten asbestos-related lawsuits filed against Abex. Data
reasonably available to Abex at this time does not include claimant's alleged disease.
No. Name
Year Received State
1. Haney v. Abex
1977
MI
2. Clutter v. Abex
1978
OH
3. Zitis, M. v. Abex
1979
NJ
4. Friedman, I. v. Abex
1979
NJ
5. Derrick v. Abex
1980
PA
6. Kean v. Abex
1980
PA
7. Kelly v. Abex
1980
PA
8. Rees v. Abex
1980
PA
9. Rice v. Abex
1980
PA
10. Sweigart v. Abex
1980
PA
INTERROGATORY NO. 90: To be redrafted and resubmitted to defendants pursuant to order 157
of the Court.
INTERROGATORY NO. 91: How many past or present employees of Defendant, its predecessors or related companies are known by you who claim to be suffering from, to have suffered from, or have suffered deaths caused by:
(a) asbestosis?
.
(b) lung cancer?
(c) mesothelioma?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 91:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods, products and medical conditions that are not at issue in these
cases, on the grounds that such information or materials lack relevance and are not reasonably
calculated to lead to the discovery of admissible evidence. To the extent it purports to seek
information or materials regarding the working conditions ofAbex employees, this interrogatory
is further objected to on the grounds that such information or materials lack relevance to the
issues arising in these cases and are not reasonably calculated to lead to the discovery of
admissible evidence. Abex objects to this interrogatory on the grounds that the information or
materials it purports to seek lack relevance to the issues arising in these cases and are not
reasonably calculated to lead to the discovery of admissible evidence.
Abex also objects to this interrogatory to the extent to which it purports to seek
information or materials that have been gathered, received, or prepared in the course of litigation,
or which are otherwise subject to the attorney-client privilege, protected by the attorney work-
158
product doctrine, the rule protecting materials prepared in anticipation ofand/or in connection with litigation, or any other applicable privilege.
Abex further objects to this interrogatory to the extent to which it purports to seek medical records or privileged personnel information, which Abex will not provide absent an appropriate waiver of the applicable privilege.
Subject to and without waiving these objections, and to the best of current and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of persona! knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge ofthe information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all
159
such records and documents.
The existing business records and documents of Abex, which number in excess ofseven
(7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved
in the order in which they were found. No summary, abstract, or compilation of the contents of
the Abex document repository has been prepared and to the tea ofAbex's knowledge, no such
document exists. In the past, Abex has provided parties with a document entitled "Finding Aid."
The Finding Aid is not a summary, abstract, or compilation. To the best ofAbex's knowledge,
it reflects the general nature of the contents of boxes of documents and provided with the
intention of affording parties a reasonable opportunity to examine, audit, and inspect the records
contained in the repository for purposes ofcopying or preparing their own abstracts or
summaries. There was never a central corporate filing system of Abex records and documents.
Therefore, the burden ofderiving or ascertaining the answer to this interrogatory, if at all, is
substantially the same for plaintiffs as Abex.
There are approximately 15 to 25 boxes, many of which are comprised of approximately
2,000 to 3,000 pages, that contain the documents from which the answer to this interrogatory
may be ascertained or derived, the subject matter of which includes but is not limited to the
following:
.
1. Medical Department Records.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity
to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these
boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New
York, where they are maintained in the normal course of business, should plaintiffs decide to
160
inspect them. Abex has no comprehensive list or log of the documents with respect to which it claims
privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court. INTERROGATORY NO. 92: For each employee referenced in your answer to Interrogatory No. 91, state the date that Defendant first knew, or had notice or information, that such past or
161
present employee who claims he/she was suffering, or had suffered from: (a) asbestos!s; (b) lung cancer; (c) mesothelioma; SECOND AMENDED ANSWER TO INTERROGATORY NO. 92: See Objections and Answer to Interrogatory No. 91, which are incorporated by reference
as though set forth herein in full. INTERROGATORY NO. 93; Identify any and all material safety data sheets concerning the products listed in response to Interrogatory Nos. 19 and 42 prepared, at any time, by, or on behalf of. Defendant, and predecessor or any related company.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 93: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of establishing product identification from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information ot materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex also objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation.
162
or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and to the best of current and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period ofmore than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge ofthe information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven
163
(7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved
in the order in which they were found. No summary, abstract, or compilation ofthe contents of
the Abex document repository has been prepared and to the best ofAbex's knowledge, no such
document exists. In the past, Abex has provided parties with a document entitled "Finding Aid."
The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, .
it reflects the general nature of the contents of boxes of documents and provided with the
intention ofaffording parties a reasonable opportunity to examine, audit, and inspect the records
contained in the repository for purposes ofcopying or preparing their own abstracts or
summaries. There was never a central corporate filing system ofAbex records and documents.
Therefore, the burden of deriving or ascertaining the answer to this interrogatory, ifat all, is
substantially the same for plaintiffs as Abex.
..
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity
to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these
boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New
York, where they are maintained in the normal course ofbusiness, should plaintiffs decide to
inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims
privilege. In the past, when Abex has had cause to review some boxes ofdocuments, it has
segregated and/or tagged certain documents with respect to which it claims privilege. The best
specificity that Abex can presently provide as to the documents with respect to which it claims
privilege is as follows: Documents passing between Abex and/or its predecessors or divisions,
on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on
164
the other hand, as well as documents prepared at the request of, or for the benefit of such counsel
or setting forth mental impressions of the attorneys on matters concerning Abex. These
documents, include, but are not limited to, correspondence, memoranda, notes oftelephone
conversations and other records relating to workers' compensation and personal injury issues,
claims and litigation (asbestos and non-asbestos related); environmental issues, claims and
litigation; insurance coverage issues, claims and litigation; real estate issues, claims and
litigation; real estate and business transactions; labor and employment issues, claims and
litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or
management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will
remove any documents with respect to which it claims privilege, on a box-by-box basis, and will
prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
the documents were inspected. Any dispute as to the propriety ofany objection can thereafter be
resolved by the Court.
INTERROGATORY NO. 94: Identify any and all trade organizations, associations, or other entities, including but not limited to American Textile Institute (ATI), Asbestos Information Association (AIA), Industrial Health Foundation or Industrial Hygiene Foundation (IHF), National Insulation Manufacturers Assn. (NIMA), National Insulation Contractors Assn. (N1CA), National Safety Council (NSC), American Ceramics Society (ACS), National Building Materials Distributors Assn. (NIA), Sprayed Mineral Fiber Manufacturers Assn. (SMFMA), Thermal Insulation Manufacturers Assn. (TIMA), Quebec Asbestos Mining Assn. (QAMA), to which Defendant, any predecessor or any related company has belonged or in which any or all of the same have participated since 1925, and state the applicable dates of such membership or participation.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 94;
Abex objects to this interrogatory on the grounds that it is over broad, unduly
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burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the grounds that the information or materials it
purports to seek lack relevance to the issues arising in these cases and are not calculated to lead to the discovery ofadmissible evidence.
Subject to and without waiving these objections, Abex was a member ofthe following trade associations: Asbestos Information Association ofNorth America (1975 to 1980); the Brake Lining Manufacturing Association (from an unknown period to 1949); the Air Pollution Control Association; the Manufacturers Alliance for Productivity and Innovation (formerly, the Machine and Allied Products Institute); and the Friction Materials Standards Institute, Inc. (1949 to 1994). Furthermore, based upon information and belief, Abex was a member of the Air Hygiene Foundation of America, Inc. (which later became the Industrial Hygiene Foundation) (1937 to 1961) and the American Industrial Hygiene Association, although such membership is neither confirmed nor corroborated by the records maintained by or in the possession ofAbex.
Within the past few years, Abex has been provided with historical documents from other parties that list American Brake Shoe & Foundry Co., and/or certain of its employees as members of the National Safety Counsel ("NSC"). It is not known if all of the employees of American Brake Shoe & Foundry who are listed as members or attendees at NSC functions were employed by Abex with respect to the manufacture or sale of friction materials that contained asbestos. These historical documents also reflect that some employees of American Brake Shoe & Foundry may have been trustees/members of the NSC. Abex has not found any information in its files evidencing a corporate membership in the NSC. Abex's investigation continues and it reserves the right to supplement this answer if additional, relevant material becomes available.
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INTERROGATORY NO. 95: Identify any and all persons attending, on behalf of Defendant, any predecessor or any related company, any meetings, seminars or symposiums held by the trade organizations, associations, or other entities identified in response to Interrogatory No. 94.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 95: Abex objects to this interrogatory on the grounds that it is over broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is limited to the years between 1930 and 1980. Abex also objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not calculated to lead to the discovery of admissible evidence. To the extent it purports to seek information or materials regarding the working conditions of Abex employees, this interrogatory is further objected to on the grounds that such information or materials lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, and to the best of current and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations. Abex's lack ofpersona] knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex,
167
or directors who sat on its Board during the period Abex manufactured and sold friction products with persona] knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes ofdocuments and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes ofcopying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
There are approximately 200 boxes, many of which comprise of approximately 2,000 -
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3,000 pages, that contain the documents from which the answer to this interrogatory may be ascertained or derived, the subject matter of which includes but is not limited to the following:
1. Club Membership, 1980-1981. 2. Asbestos Information Association, 1977. 3. Expense Reports, 19E0-1982. 4. Abex News and other miscellaneous publications, 1967-1978. 5. 1970s 1980s, Friction Materials Standard Institute ("FMSI"). Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to . inspect them. Abex has no comprehensive list or log ofthe documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes ofdocuments, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and persona] injury issues,
169
claims and litigation (asbestos and non-asbestos related); environmental issues, claims and
litigation; insurance coverage issues, claims and litigation; real estate issues, claims and
litigation; real estate and business transactions; labor and employment issues, claims and
litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or
management; as well as other legal issues, transactions and claims.
When a plaintiffavails himself or herself of the offer to inspect the documents, Abex will
remove any documents with respect to which it claims privilege, on a box-by-box basis, and will
prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
the documents were inspected. Any dispute as to the propriety of any objection can thereafter be
resolved by the Court.
INTERROGATORY NO. 96: Did any officer, employee, agent or representative of Defendant, of any predecessor, or of any related company, serve, at any time, as:
(a) an officer, director or official of any trade organization, association or entity identified in response to Interrogatory No. 94?
(b) a member of any committee or subcommittee of any trade organization, association or entity identified in response to Interrogatory No. 94?
(c) the chair ofany committee or subcommittee ofany trade organization, association or entity identified in response to Interrogatory No. 94?
(d) the representative or liaison for any trade organization, association or entity identified in response to Interrogatory No. 94 to any other trade organization, association or entity, including, but not limited to, A.T.I, I.H.F., N.LM.A, AIA, N.I.C.A, T.I.M.A, Q.A.MA., N.A.C. N.S.C, A.C.S., N.B.M.D.A., N.IA., S.M.F.M.A.?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 96;
Abex objects to this interrogatory on the grounds that it is over broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
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Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is limited to the years between 1930 and 1980.
Abex also objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not calculated to lead to the discovery of admissible evidence. To the extent it purports to seek information or materials regarding the working conditions of Abex employees, this interrogatory is further objected to on the grounds that such information or materials lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Subject to and without waiving these objections, and to the best of current and reasonably available information and belief, Abex was represented on the AIA/NA's International Friction Materials Advisory Panel from 1979 to 1980. To the best of current and reasonably available information and belief, Abex was a member ofthe Friction Materials Standard Institute, Inc.'s subcommittee named "Asbestos Study Committee" from 1971 to at least 1975. To the best of current and reasonably available information and belief, E. H. Feierabend served on the Asbestos Study Committee ofthe Friction Materials Standards Institute, Inc. from 1972 to at least 1975. INTERROGATORY NO. 97: For each subpart of Interrogatory No. 96 to which your answer is "Yes," identify each and every person serving in such capacity and:
(a) state the trade organization, association or entity for which such service was rendered;
(b) specify the capacity of service, including identifying any specific committee, subcommittee or other trade organizations, associations or entities involved; and,
(c) state the applicable dates of service.
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SECOND AMENDED ANSWER TO INTERROGATORY NO. 97: See Objections and Answer to Interrogatory No. 96, which are incorporated by reference as though set forth herein in full. INTERROGATORY NO. 98; Identify any and all documents which Defendant, its predecessors) or any related company submitted to, or received from, the organizations listed in response to Interrogatory Nos. 94 and/or 97: (a) which refer to, relate to or reflect the subject of asbestos; (b) which refer to, relate to or reflect a relationship between asbestos exposure and
any disease; and/or (c) which refer to, relate to or reflect the placement or providing of warnings with
respect to hazardous products. SECOND AMENDED ANSWER TO INTERROGATORY NO. 98: Abex objects to this interrogatory on the grounds that it is over broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is limited to the years between 1930 and 1980. Abex also objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not calculated to lead to the discovery of admissible evidence. To the extent it purports to seek information or materials regarding the working conditions ofAbex employees, this interrogatory is further objected to on the grounds that such information or materials lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery ofadmissible evidence. Abex objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are
172
otherwise subject to the attorney-client privilege, protected by the attorney work-product
doctrine, the rule protecting materials prepared in anticipation of and/or in connection with
litigation, or any other applicable privilege.
.
Subject to and without waiving these objections, Abex received various copies of The
Industrial Hygiene Digest on unknown dates. Abex has made a reasonable and good faith effort
to obtain the requested information, to the extent that it is not equally available to plaintiffs, by
making a good faith search of locations where documents containing this information, ifit exists,
should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack ofpersonal knowledge is due to the following: Abex discontinued the
manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestos-
containing automotive friction products in 1987 and no longer operates any friction product
manufacturing facilities. There are no current Abex employees, officers who worked for Abex,
or directors who sat on its Board during the period Abex manufactured and sold friction products
with personal knowledge ofthe information contained in all the records and documents that
might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during
which time it underwent numerous changes in its corporate structure, management, headquarters
and name. The volume of records generated, and documents accumulated, during that time was
enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such
records and documents, or that it otherwise has knowledge ofthe information contained in all
such records and documents.
The existing business records and documents of Abex, which number in excess ofseven
173
(7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best ofAbex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention ofaffording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records aihd documents. Therefore, the burden ofderiving or ascertaining the answer to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
There are approximately 200 boxes, many of which comprise of approximately 2,000 3,000 pages, that contain the documents from which the answer to this interrogatory may be ascertained or derived, the subject.matter ofwhich includes but is not limited to the following:
1. Club Membership, 1980-1981. 2. Asbestos Information Association, 1977. 3. Expense Reports, 1980-1982. 4. Abex News and other miscellaneous publications, 1967-1978. 5. 1970s 1980s, Friction MaterialsStandard Institute ("FMSI"). Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes ofdocuments, which will be produced to plaintiffs at Abex 's facility in Brooklyn, New
174
York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log ofthe documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes ofdocuments, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions ofthe attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes oftelephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himselfor herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court.
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INTERROGATORY NO. 99? Identify any and all documents including, but not limited to, minutes, bulletins or reports, created by, or on behalf of, any trade organization, association or entity listed in response to Interrogatory No. 94 and/or 97 or any committee, subcommittee or subgroup thereof;
(a) which refer to, relate to or reflect the subject of asbestos;
(b) which refer to, relate to or reflect a relationship between asbestos exposure and any disease; or
(c) which refer to, relate to or reflect the placement or providing of warnings with respect to hazardous products.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 99:
See Objections and Answer to Interrogatory No. 98, which are incorporated by reference
as though set forth herein in lull.
INTERROGATORY NO. 100: Identify any and all documents including, but not limited to, minutes, bulletins or reports, received by, or on behalf of, any trade organization, association or entity listed in response to Interrogatory No. 94 and/or 97, or any committee, subcommittee or subgroup thereof;
(a) which refer to, relate to or reflect the subject of asbestos;
(b) which refer to, relate to or reflect a relationship between asbestos exposure and any disease; or
(c) which refer to, relate to or reflect the placement or providing of warnings with respect to hazardous products.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 100;
See Objections and Answer to Interrogatory No. 98, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 101: Identify any and all agreements, oral or written, between or among Defendant, any of the other defendants in this lawsuit, any organization, association or other entity including, but not limited to, those identified in your answer to Interrogatory No. 94 and/or any medical or scientific foundations, relating to the standardization of:
(a) Specifications for asbestos cloth products; 176
ff
(b) Specifications for paper or burlap bags, or other packaging to be used for the ' transport and/or storage of asbestos cement; (c) Warning or caution labels to be applied to asbestos products and/or their
packaging, cartons, containers, or boxes; (d) Methods of dissemination of public relations information to defendant's
purchasers, advertisers, distributors, factory workers, contractors, insulators, users, consumers of asbestos products and/or the general public; (e) Safety equipment and/or protective clothing to be utilized while handling defendant's asbestos products; (0 Medical programs to be offered or sponsored by defendant. SECOND AMENDED ANSWER TO INTERROGATORY NO. 101: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is limited to the years between 1930 and 1980. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. To the extent it purports to seek information or materials regarding the working conditions of Abex employees, this interrogatory is further objected to on the grounds that such information or materials lack relevance to the issues arising in these cases
and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects
to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the
177
discovery of admissible evidence. Abex also objects to this interrogatory on the ground that it is speculative inasmuch as it
fails to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types of asbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive and/or railroad friction products was chrysotile, the only type ofasbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects.
Abex further objects to this interrogatory to the extent to which it purports to seek information or materials regarding entities other than Abex.
. Abex objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney work-product doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and to the best ofcurrent and reasonably available information and belief, Abex is unaware of any documents responsive to this interrogatory. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the
178
manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with persona] knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume ofrecords generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best ofAbex's knowledge, it reflects the general nature ofthe contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents.
179
Therefore, the burden ofderiving or ascertaining the answer to this interrogatory, if at all, is
substantially the same for plaintiffs as Abex.
.
There are approximately 200 boxes, many of which comprise of approximately 2,000 -
3,000 pages, that contain the documents from which the answer to this interrogatory may be
ascertained or derived, the subject matter of which includes but is not limited to the following:
1. Club Membership, 1980-1981.
2. Asbestos Information Association, 1977.
3. Expense Reports, 1980-1982.
4. Abex News and other miscellaneous publications, 1967-1978.
. 5. 1970s 1980s, Friction Materials Standard Institute ("FMSI").
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity
to examine, audit, inspect and to make copies, compilations, abstracts, or summaries ofthese
boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New
York, where they are maintained in the normal course of business, should plaintiffs decide to
inspect them.
Abex has no comprehensive list or log ofthe documents with respect to which it claims
privilege. In the past, when Abex has had cause to review some boxes ofdocuments, it has
segregated and/or tagged certain documents with respect to which it claims privilege. The best
specificity that Abex can presently provide as to the documents with respect to which it claims
privilege is as follows: Documents passing between Abex and/or its predecessors or divisions,
on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on
the other hand, as well as documents prepared at the request of, or for the benefit of such counsel
180
or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, . claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himselfor herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log bn plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court INTERROGATORY NO. 102; Did Defendant, any predecessor or related company, direct to be performed, sponsor in whole or in part, finance in whole or in part, receive the results of, or become aware of, any studies or tests performed by the Saranac Lake Laboratory of the Trudeau Foundation relating to asbestos exposure and its effects upon human health?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 102: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of establishing causation from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or
181
materials regarding time periods and products that are not at issue in these cases, on the ground that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery ofadmissible evidence.
Abex also objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and insofar as it understands this interrogatory, Abex is generally aware that it contributed monies for certain studies at the Saranac Laboratory, Saranac, New York. Abex's documents reflect that any such studies performed by the Saranac Laboratory on behalf ofAbex specifically pertained to siderosis and silicosis studies. Plaintiffs' counsel in a different case have produced in discovery unauthenticated photocopies of documents purporting to show that Abex agreed in the 1930's to pay $250 per year for three years with respect to a single asbestos-related animal study at the Saranac Laboratory. Abex's records do not confirm any such agreement, nor do Abex's records reflect any such payment. To the best of current knowledge and belief, Abex has found no such documents or any record of having received such documents. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this
182
information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack ofpersonal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestos-containing automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time.it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents ofAbex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best ofAbex's knowledge, it reflects the general nature ofthe contents of boxes ofdocuments and provided with the
183
intention ofaffording parties a reasonable opportunity to examine, audit, and inspect the records
contained in the repository for purposes ofcopying or preparing their own abstracts or
summaries. There was never a central corporate filing system of Abex records and documents.
Therefore, the burden ofderiving or ascertaining the response to this interrogatory, ifat all, is
substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedures, plaintiffs will have a reasonable
opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries
of these boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn,
New York, where they are maintained in the normal course of business, should plaintiffs decide
to inspect them.
'
Abex has no comprehensive list or log of the documents with respect to which it claims
privilege. In the past, when Abex has had cause to review some boxes ofdocuments, it has
segregated and/or tagged certain documents with respect to which it claims privilege. The best
specificity that Abex can presently provide as to the documents with respect to which it claims
privilege is as follows: Documents passing between Abex and/or its predecessors or divisions,
on the one hand (collectively "Abex"), and their attorneys, both outside and in-house counsel, on
the other hand, as well as documents prepared at the request of, or for the benefit ofsuch counsel
or setting forth mental impressions of the attorneys on matters concerning Abex. These
documents, include, but are not limited to, correspondence, memoranda, notes oftelephone
conversations and other records relating to workers' compensation and personal injury issues,
claims and litigation (asbestos and non-asbestos related); environmental issues, claims and
litigation; insurance coverage issues, claims and litigation; real estate issues, claims and
184
litigation; real estate and business transactions; labor and employment issues, claims and
litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or
management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will
remove any documents with respect to which it claims privilege, on a box-by-box basis, and will
prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
the documents were inspected. Any dispute as to the propriety ofany objection can thereafter be
resolved by the Court.
INTERROGATORY NO. 1(0: If your answer to Interrogatory No. 102 is "Yes":
(a) Identify any and all documents received by Defendant, its predecessors), or a related company referring to, relating to or reflecting any findings or results of those studies or tests, and state the date upon which each was first received;
(b) Identify any and all communications (oral or written), between Defendant, its predecessors) or a related company and Saranac personnel, including but not limited to Gerrit W.H. Schepers, M.D.;
(c) Identify any and all documents referring to, relating to or reflecting the Saranac studies received or submitted by Defendant, its predecessors) or a related company either directly, through related or predecessor companies, through other companies, or through any trade associations, organizations or other entities; and
(d) Identify any and all documents referring to, relating to or reflecting recommendations or findings of such studies relating to:
(i) Adequacy or inadequacy of threshold limit values;
(ii) Substitution ofmaterials other than asbestos to be used in the insulation process.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 103:
See Objections and Answer to Interrogatory No. 102, which are incorporated by reference
as though set forth herein in full.
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INTERROGATORY NO. 104: With respect to each subject listed below, state whether said subject was, at any time, discussed at a meeting of the board of directors ofDefendant, any predecessor or any related company:
(a) The sale and/or marketing of any asbestos-containing product, including, but not limited to, the products listed in response to Interrogatory Nos. 19 and 42;
(b) The health hazards resulting from exposure to asbestos, including, but not limited
to, exposure resulting from the use, application or removal of asbestos-containing
products;
(c) The placement or possible placement of warning labels on asbestos-containing products or their packages, or in sales literature, therefore including, but not limited to, the products listed in response to Interrogatory Nos. 19 anti 42; and
(d) Any test, survey, study or similar matter concerning asbestos or asbestoscontaining products, including, but not limited to, the products listed in response to Interrogatory Nos. 19 and 42.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 104:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the grounds
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery ofadmissible evidence. To the extent it purports to seek information or materials
regarding the working conditions of Abex employees, this interrogatory is further objected to on
the grounds that such information or materials lack relevance to the issues arising in these cases
and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects
to this interrogatory on the grounds that the information or materials it purports to seek lack
relevance to the issues arising in these cases and are not reasonably calculated to lead to the
186
discovery of admissibie evidence. Abex objects to this interrogatory on the ground that it is speculative inasmuch as it fails
to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types of asbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive and/or railroad friction products was chrysotile, the only type ofasbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects.
,, Abex also objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation ofand/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and to the best ofcurrent and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack ofpersonal knowledge is due to the following: Abex discontinued the . manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex,
187
or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume ofrecords generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated.three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best ofAbex's knowledge, it reflects the general nature ofthe contents ofboxes ofdocuments and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the response to this interrogatory, ifat all, is substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity
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to examine, audit, inspect and to make copies, compilations, abstracts, or summaries ofthese boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex''), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit ofsuch counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
189
the documents were inspected. Any dispute as to the propriety of any objection can thereafter be
resolved by the Court. INTERROGATORY NO. IPS: If you answer to any one or more of the subparts of Interrogatory No. 104 is "Yes," then with respect to each subpart for which you answered "Yes":
(a) Identify each and every board meeting at which said subject was discussed by stating the dates) on which, and the locations) at which, each meeting was held;
(b) Identify any and ail persons present at each such meeting; and,
(c) Identify any and all documents, including, but not limited to, minutes, referring to, relating to, or reflecting each such meeting.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 105:
See Objections and Answer to Interrogatory No. 104, which are incorporated by reference as though set forth herein in full. INTERROGATORY NO, 106: Identify any and all seminars, symposiums, conferences or like gatherings attended by any officer, agent or representative of Defendant, any predecessor or any related company, at which the subject of asbestos, the health hazards of asbestos exposure, or the placement or providing ofwarnings was discussed.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 106:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds
that such information or materials lack relevance and are not reasonably calculated to lead to the
discovery of admissible evidence. To the extent it purports to seek information or materials
regarding the working conditions of Abex employees, this interrogatory is further objected to on
the grounds that such information or materials lack relevance to the issues arising in these cases
190
and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery ofadmissible evidence.
Abex also objects to this interrogatory on the ground that it is speculative inasmuch as it fails to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive and/or railroad friction products, and/or among the different types of asbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive and/or railroad friction products was chrysotile, the only type of asbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects.
Abex further objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, Abex is in possession of a typewritten note stating that a former Abex Medical Department Director, Lloyd E. Hamlin, presented a paper at a symposium held in 1952 at Saranac Lake. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons
191
or organizations. Abex's lack of personal knowledge is due to the following: Abex discontinued the
manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume ofrecords generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge ofthe information contained in all such records and documents.
The existing business records and documents ofAbex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes ofdocuments and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records
192
contained in the repository for purposes ofcopying or preparing their own abstracts or summaries. There was never a central corporate filing system ofAbex records and documents. Therefore, the burden of deriving or ascertaining the response to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
There are approximately 200 boxes, many of which comprise of approximately 2,000 3,000 pages, that contain the documents from which the response to this interrogatory may be ascertained or derived, the subject matter of which includes but is not limited to the following:
1. Club Membership, 1980-1981. 2. Asbestos Information Association, 1977. 3. Expense Reports, 1980-1982. 4. Abex News and other miscellaneous publications, 1967-1978. 5. 1970s 1980s, Friction Materials Standard Institute ("FMSI"). Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries ofthese boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them. Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes ofdocuments, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions,
193
on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on
the other hand, as well as documents prepared at the request of, or for the benefit ofsuch counsel
or setting forth mental impressions of the attorneys on matters concerning Abex. These
documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues,
claims and litigation (asbestos and non-asbestos related); environmental issues, claims and
litigation; insurance coverage issues, claims and litigation; real estate issues, claims and
litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himselfor herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after die last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court.
INTERROGATORY NO. 107: Identify any and all documents, including, but not limited to, notes, reports, minutes or bulletins, which refer to, relate to or reflect any meeting identified in response to Interrogatory No. 106.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 107:
See Objections and Answer to Interrogatory No. 6, which are incorporated by reference as
though set forth herein in full.
INTERROGATORY NO. 108: With respect to each job site set forth in the attached Exhibit A: (i) identify any and all documents referring to, relating to or reflecting the purchase, sale, delivery, use, application or ordering, ofany of the products listed in response to Interrogatory Nos. 19 and 42 by, for, to or at said site; and, (ii) identify any and all persons known by
194
Defendant to have knowledge concerning the same. SECOND AMENDED ANSWER TO INTERROGATORY NO, 108:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory on the ground that it purports to shift the burden of establishing product identification from plaintiffs to Abex.
Abex further objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex also objects to this interrogatory to the extent to which it purports to seek information or materials regarding entities other than Abex.
Abex further objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and to the best ofcurrent and reasonably available information and belief, Abex states that not later than 1987 it manufactured some asbestos-containing automotive friction products that were sold to agencies of the United States
195
Government, Chrysler Corporation and General Motors Corporation. Abex states it never manufactured or sold asbestos-containing automotive brakes, brake assemblies or brake shoes. Abex lacks personal knowledge and information sufficient to state the exact nature of the friction material sold to agencies of the United States Government, Chrysler Corporation and General Motors Corporation, such as whether it was strip lining material, brake block, disc brake caliper pads, or some other form of friction materia). To attempt to ascertain this information, Abex has made a reasonable inquiry and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations. However, additional information may be available in documents maintained in the normal course of business at Abex's Brooklyn, New York document repository, where pursuant to Illinois Rules ofCivil Procedure, non-privileged documents will be made available upon request at a mutually convenient time.
Abex's lack ofpersonal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestos-containing automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in alt the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters
196
and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge ofthe information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of seven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best ofAbex's knowledge, no such document exists, in the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system ofAbex records and documents. Therefore, the burden of deriving or ascertaining the response to this interrogatory, ifat all, is substantially the same for plaintiffs as Abex.
There are approximately 610 boxes, many of which are comprised ofapproximately 2,000 - 3,000 pages, that contain the documents from which the response to this interrogatory may be ascertained or derived, the subject matter of which includes but is not limited to the following:
1. Sales invoices. 2. General sales correspondence.
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3. Shipping sheets.
4. Warehouse shipments.
5. Purchase orders and shipping orders. 6. Sales transmittals.
t
7. Sales and distributor files.
8. Catalogs.
9. Brochures.
10. Promotional materials.
11. Product brochures.
.. Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity
to examine, audit, inspect and to make copies, compilations, abstracts, or summaries ofthese
boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New
York, where they are maintained in the normal course of business, should plaintiffs decide to
inspect them.
Abex has no comprehensive list or log ofthe documents with respect to which it claims
privilege. In the past, when Abex has had cause to review some boxes of documents, it has
segregated and/or tagged certain documents with respect to which it claims privilege. The best
specificity that Abex can presently provide as to the documents with respect to which it claims
privilege is as follows: Documents passing between Abex and/or its predecessors or divisions,
on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on
the other hand, as well as documents prepared at the request of, or for the benefit of such counsel
or setting forth mental impressions of the attorneys on matters concerning Abex. These
198
documents, include, but are not limited to, correspondence, memoranda, notes oftelephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as welt as other legal issues, transactions and claims.
When a plaintiffavails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court. INTERROGATORY NO. 109: Identify any and all parties, located within a 200 mile radius of Madison County, Illinois, including, but not limited to, distributors, suppliers or contractors, known by you to have purchased, received, sold, distributed, applied or otherwise used, at any time, any or all of the products listed in response to Interrogatory Nos. 19 and 42.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 109: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of establishing product identification from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds
199
that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex also objects to this interrogatory to the extent to which it purports to seek information or materials regarding entities other than Abex.
Abex further objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation ofand/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and to the best ofcurrent and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that
200
might be responsive to this interrogatory. Abex's corporate existence spans a period of more than one hundred (100) years, during
which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents ofAbex, which number in excess of ten (10) million and include an estimated three (3) million sales records, are preserved in the order in which they were found. No summary, abstract, or compilation ofthe contents of the Abex document repository has been prepared and to the best ofAbex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes ofdocuments and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes ofcopying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the response to this interrogatory, ifat all, is substantially the same for plaintiffs as Abex.
There are approximately 610 boxes, many of which are comprised of approximately 2,000 - 3,000 pages, that contain the documents from which the response to this interrogatory may be ascertained or derived, the subject matter of which includes but is not limited to the
201
following:
1. Sales invoices.
2. General sales correspondence.
3. Shipping sheets.
.
4. Warehouse shipments.
5. Purchase orders and shipping orders.
6. Sales transmittals.
7. Sales and distributor files.
8. Catalogs.
9. Brochures.
10. Promotional materials.
11. Product brochures.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity
to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these
boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New
York, where they are maintained in the normal course of business, should plaintiffs decide to
inspect them.
Abex has no comprehensive list or log ofthe documents with respect to which it claims
privilege. In the past, when Abex has had cause to review some boxes ofdocuments, it has
segregated and/or tagged certain documents with respect to which it claims privilege. The best
specificity that Abex can presently provide as to the documents with respect to which it claims
privilege is as follows: Documents passing between Abex and/or its predecessors or divisions,
202
on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes oftelephone conversations and other records relating to workers' compensation and personal injury issues, . claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as welt as other legal issues, transactions and claims.
When a plaintiff avails himself or herselfof the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be resolved by the Court. INTERROGATORY NO. 110; To be redrafted and resubmitted to defendants pursuant to order ofthe Court. INTERROGATORY NO, III: To be redrafted and resubmitted to defendants pursuant to order of the Court. INTERROGATORY NO. 112: In any lawsuit, as described in Interrogatory No. 111, has Defendant been subject to sanctions, a contempt citation or similar action for failing, or refusing to comply with, any court order, for discovery fraud, or for the failure to provide complete, accurate and truthful responses to discovery?
203
SECOND AMENDED ANSWER TO INTERROGATORY NO. 112:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, vague and ambiguous and calls for speculation.
Abex also objects to this interrogatory to the extent to which it purports to seek
information or materials that have been gathered, received, or prepared in the course of litigation,
or which are otherwise subject to the attorney-client privilege, protected by the attorney work-
product doctrine, the rule protecting materials prepared in anticipation ofand/or in connection
with litigation, or any other applicable privilege.
Abex further objects to this interrogatory to the extent it purports to seek information that
is a matter of public record, and thus, equally available to plaintiffs as Abex.
Subject to and without waiving these objections, since this interrogatory refers to
Interrogatory No. Ill, this interrogatory cannot be answered unless and until Interrogatory
No. 111 has been redrafted and resubmitted to defendants.
.
INTERROGATORY NO. 113: Ifyour answer to Interrogatory No. 112 is "Yes," with respect to each such occasion described:
(a) Identify the lawsuit involved, the court which imposed the sanctions or issued the contempt citation, and any other court which reviewed the same;
(b) Describe the violation for which sanctions or contempt was imposed;
(c) If the violation involved the failure or refusat to produce any documents), identify any and all such documents;
(d) If the violation involved any failure to truthfully answer or to respond to Interrogatories, identify any and all such Interrogatories and your response thereto, including the person answering on your behalf;
(e) State the present status or final disposition of the matter, whichever is applicable; and;
204
(f) Identify any and all documents referring to, relating to or reflecting said matter, including, but not limited to, pleadings, exhibits and court orders.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 113: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not calculated to lead to the discovery ofadmissible evidence. Abex further objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation ofand/or in connection with litigation, or any other applicable privilege. Abex objects to this interrogatory to the extent it purports to seek information that is a matter ofpublic record, and thus, equally available to plaintiffs as Abex. Subject to and without waiving these objections, see Answer to Interrogatory No. 112. INTERROGATORY NO. 114: To be redrafted and resubmitted to defendants pursuant to order of the Court. INTERROGATORY NO. IIS: To be redrafted and resubmitted to defendants pursuant to order of the Court INTERROGATORY NO. 116: Withdrawn by plaintiff or stricken by the Court. INTERROGATORY NO. 117: Withdrawn by plaintiff or stricken by the Court. INTERROGATORY NO. 118: Withdrawn by plaintiffor stricken by the Court. INTERROGATORY NO. 119: Withdrawn by plaintiff or stricken by the Court.
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INTERROGATORY NO. 120: Has Defendant, any predecessor or any related company, ever been cited, warned, fined or sanctioned for, any violation ofa federal or state statute, law, rule, ordinance, code, administrative order, executive order, or the like, by any federal or state governmental entity, which violation concerned asbestos in any way?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 120: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is limited to the years between 1930 and 1980. Abex also objects to this interrogatory to the extent it purports to seek information or materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the ground that it is speculative inasmuch as it fails to distinguish among raw asbestos, asbestos contained in building insulation products and/or asbestos-containing automotive friction products, and/or among the different types of asbestos fibers. Because the asbestos fiber contained in Abex's asbestos-containing automotive friction products was chrysotile, the only type of asbestos Abex ever used for product production, which was resin-bonded and encapsulated, proper use of such products did not create or contribute to any adverse health effects. Abex also objects to this interrogatory to the extent to which it purports to seek
206
information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Abex further objects to this interrogatory to the extent it purports to seek information that is a matter of public record, and thus, equally available to plaintiffs as Abex.
Subject to and without waiving these objections, and to the test of current and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate; by inquiry to other natural persons or organizations.
- Abex's lack ofpersonal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such
207
records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of ten (10) million and include an estimated three (3) million sales records, are preserved in the order in which they were found. No summary, abstract, or compilation of the contents ofthe Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature ofthe contents of boxes ofdocuments and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes ofcopying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden ofderiving or ascertaining the response to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best
208
specificity that Abex can presently provide as to the documents with respect to which it claims
tr
privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit ofsuch counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiffwithin sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety ofany objection can thereafter be resolved by the Court. INTERROGATORY NO. 121: Ifyour answer to Interrogatory No. 120, is "Yes," with respect to each such violation:
(a) Withdrawn by plaintiff or stricken by the Court. (b) State the date of the citation, warning, fine, sanction or write-up; (c) Describe the violation and state the date(s) during which it occurred; (d) Identify the statute, law, rule, ordinance, code or order to which it occurred;
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(e) State what, ifany, specific fine, penalty, or sanction was imposed; (f) State the date in which and the manner in which said violation was corrected; (g) Identify any and all officials of Defendant, its predecessor or its related company
having knowledge or notice ofsaid violation and state the date on which said knowledge or notice was received; and (h) Identify any and all documents referring to, relating to or reflecting said violation. SECOND AMENDED ANSWER TO INTERROGATORY NO. 121; See Objections and Answer to Interrogatory No. 120, which are incorporated by reference as though set forth herein in full. INTERROGATORY NO. 122: Has any federal or state government entity, at any time, conducted an inspection, test or survey concerning asbestos or asbestos exposure at any facility where the products listed in response to Interrogatory Nos. 19 and 42 were manufactured, processed, applied, used or removed? SECOND AMENDED ANSWER TO INTERROGATORY NO. 122: Abex objects to this interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous and calls for speculation. Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is limited to the years between 1930 and 1980. Abex also objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods, products and work sites that are not at issue in these cases, on the ground that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. To the extent it purports to seek information or materials regarding the working conditions of Abex employees, this interrogatory is further objected to on the grounds that such information or materials lack relevance to the issues arising
210
in these cases and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek otherwise lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex also objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation ofand/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and insofar as Abex understands this interrogatory, Gordon S. Siegel, M.D., Chief of the Occupational Medicine Section, Division of Occupational Health, Department of Health, Education and Welfare of the U.S. Public Health Service in Washington, D.C., in 1965, prepared to embark on a 20-year study entitled, "Occupational Health Study of the Asbestos Products Industry in the United States." As part of the study, all employees of Abex who worked or would be hired at the Winchester, Virginia facility were to be surveyed. Information currently available to Abex indicates that this study was terminated by the Government before it was concluded. To the best ofcurrent knowledge and belief, Abex has found no such documents or any record of having received such documents. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
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Abex's lack ofpersonal knowledge is due to the following: Abex discontinued the manufacture and sale ofasbestos-containing railroad friction products in 1977 and asbestos-containing automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume ofrecords generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess ofseven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order, in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has teen prepared and to the test ofAbex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the test of Abex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or
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summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden of deriving or ascertaining the response to this interrogatory, ifat all, is substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedures, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes ofdocuments, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and in-house counsel, on the other hand, as well as documents prepared at the request of, or for the benefit ofsuch counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of.telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or
213
management; as well as other legal issues, transactions and claims. When a plaintiffavails himself or herself of the offer to inspect the documents, Abex will
remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety ofany objection can thereafter be resolved by the Court. INTERROGATORY NO. 123: Ifyour answer to Interrogatory No. 122 is "Yes," then with respect to each such inspection, test or survey:
(a) Identify the governmental entity conducting the same; (b) State the dates(s) on which the same was conducted; (c) Describe the nature of the inspection, test or survey including, but not limited to,
the results or conclusions thereof; and (d) Identify any and all documents referring to, relating to or reflecting the same. SECOND AMENDED ANSWER TO INTERROGATORY NO. 123: See Objections and Answer to Interrogatory No. 122, which are incorporated by reference as though set forth herein in full. INTERROGATORY NO. 124: Identify: (a) Any expert whom you intend to call as a witness; (b) The subject matter on which the expert is expected to testify; (c) The substance ofthe facts and opinions to which the expert is expected to testify; (d) A summary of the grounds for each opinion; (e) The address of such person and field of expertise; (f) Identify and produce each treatise, article or text upon which the expect will rely
in testifying. 214
SECOND AMENDED ANSWER TO INTERROGATORY NO. 124: Abex objects to this interrogatory on the grounds that it is privileged and premature. Discovery and investigation are continuing. Subject to and without waiving these objections, see Pneumo Abex LLC's Disclosure of Fact and Expert Witnesses. Abex has not yet determined which expert witnesses it intends to call at a trial of these matters and reserves the right to supplement or amend this answer as appropriate once a determination has been made. INTERROGATORY NO. 125: Are there any policies of insurance which provide, or might provide, coverage on behalf of Defendant, any predecessor or any related company for the injuries alleged in Plaintiffs' complaints? SECOND AMENDED ANSWER TO INTERROGATORY NO. 125; Abex objects to this interrogatory on the grounds that it is overly broad and unduly burdensome. Abex also objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege. Subject to and without waiving these objections, and insofar as it understands this
215
interrogatory, Abex is currently involved in litigation with various insurance companies
concerning the coverage available to Abex in asbestos personal injury actions. Various
confidentiality agreements and protective orders are in effect in that litigation. To the extent to
which information subject to this interrogatory exists and is covered by such agreements or
orders, Abex objects to the production of such information.
The primary coverage was provided by:
From 1943 to 1957: Maryland Casualty Company.
From 1957 to 1971: Liberty Mutual Insurance Company.
From 1971 to 1974: The Travelers Insurance Companies.
From 1974 to 1975: Argonaut Insurance Company.
From 1975 to 1978: Continental Insurance Company.
From 1978 to 1979: Northwestern National Insurance Company.
,
From 1979 to 1980: Continental Insurance Company.
From 1980 to 1985: National Union Fire Insurance.
To the best of current and reasonably available information and belief, excess coverage
was provided by the following insurance companies at various times and levels covering the
period between approximately 1950 and 1985:
ALBA General Insurance Company LTD.
AIG
AIU
Allianz Underwriters, Inc.
Allstate insurance Company, as successor in interest to Northbrook Excess Surplus Insurance Company (formerly known as Northbrook Insurance Company)
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American Home
American Re
Anglo French Insurance Company LTD.
Anglo Saxon Insurance Association LTD.
Argonaut Insurance Company
Associated Internationa!
Bishopsgate Insurance Company LTD.
British Aviation Insurance Company LTD.
British Merchants Insurance Company LTD. Brittany Insurance Company LTD.
California Union
Century Indemnity Company
Chubb (Federal)
City General Insurance Company
Columbia Casualty
Compagnie D'Assurance Maritimes Aeriennes & Terrestres, S.A.
Compagnie Europeenne D'Assurances Industrielles, S.A.
Continental Casualty
.
Comhill Insurance PLC
Dominion Insurance Company LTD.
Economic Insurance Company LTD.
Employers Mutual
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Evanston Insurance Company
Excess Insurance Company LTD.
Falcon
Federal Insurance Company
Fidelidade Insurance Company
Fireman's Fund
First State
Folksam International Insurance Company LTD. Gibraltar
Granite State
Great American Surplus
Harbor Specialty Insurance Group
Heddington Insurance (UK) LTD.
Helvetia-Accident Swiss Insurance Company LTD.
Highlands
,
The Home
Hudson
Insurance Co. of the State of PA
Insurance Company ofNorth America
International Ins. Co.
ISOP
Lexington Insurance Company (UK) LTD.
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Lloyd's & London Market Companies
London & Edinburgh Insurance Company LTD.
Ludgate Insurance Company LTD.
Minster Insurance Company LTD.
Mitsui Marine & Fire Insurance Company (Europe) LTD
Mt. McKinley Insurance Company (formerly known as Gibraltar Casualty Company)
National Surety Group.
National Union Fire Insurance Company of Pittsburgh, PA.
New Hampshire OSLO Reinsurance Company (UK) LTD.
River Thames Insurance Company LTD.
Royal Scottish Insurance Company LTD.
Sphere/Drake Insurance Company LTD.
St. Paul International Insurance Company LTD.
Stonewall
Stronghold Insurance Company LTD.
Swiss National Insurance Company LTD.
Switzerland General Insurance Company
Threadneedle Insurance Company LTD
Tokio Marine & Fire Insurance (UK) LTD.
Travelers Casualty and Surety Company
Trent Insurance Company LTD.
Vanguard Insurance Company LTD.
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Winterthur Swiss Insurance Company
World Auxiliary Insurance Corporation LTD.
World Marine & General Insurance Company LTD.
.
INTERROGATORY NO. 126; Ifyour answer to Interrogatory No. 125 is "Yes" identify each such policy ofinsurance as follows:
(a) Identify the insurer(s)
(b) Identify the insured(s)
(c) State the date on which the policy was first purchased and the date on which the policy expired or was terminated;
(d) Describe the coverage provided, including, but not limited to, the time period over which the policy applied, the nature ofthe acts, omissions and injuries covered, and whether the policy provides primary or excess coverage; and
(e) State the dollar limits of the coverage provided, including, if applicable, the "per person" limitations and "per occurrence" limitation.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 126:
See Objections and Answer to Interrogatory No. 125, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 127: With respect to each policy described in response to Interrogatory No. 126, state:
(a) the dollar amount ofcoverage which remains unexpended; and
(b) whether any dispute exists between insurer and insured with respect to coverage.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 127;
See Objections and Answer to Interrogatory No. 125, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 128: Other than the polices of insurance described in response to 220
Interrogatory No. 126, do there exist any agreements providing for the benefit of Defendant, any predecessor or any related company, complete or partial indemnification for any or all expenses incurred with respect to any or all of these cases, including, but not limited to, judgments, settlements, costs, experts' fees and/or attorneys' fees?
SECOND AMENDED ANSWER TO INTERROGATORY NO. 128: Abex objects to this interrogatory on the grounds that it is overly broad and unduly burdensome. Abex also objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not calculated to lead to the discovery of admissible evidence. Abex further objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege. Subject to and without waiving these objections, Abex is currently involved in litigation with various insurance companies concerning the coverage available to Abex in asbestos personal injury actions. Various confidentiality agreements and.protective orders are in effect in that litigation. To the extent to which information subject to this interrogatory exists and is covered by such agreements or orders, Abex objects to the production ofsuch information. Subject to and without waiving these objections: November 24,1994 Asset Purchase Agreement between Pneumo Abex Corporation and Wagner Electric Corporation, and associated Mutual Guaranty Agreement.
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April 28, 1988 Stock Purchase Agreement between PA Holdings Corporation and IC
Industries, Inc,
INTERROGATORY NO. 129: If your answer to interrogatory No. 128 is "Yes," for each such agreement:
(a) Identify all parties to the agreement and state the capacity of each such party (i.e. indemnitor, indemnitee, etc.);
(b) State the terms of the agreement, including the nature of the expenses covered and, if applicable, any limitations on payment, reimbursement or indemnification; and
(c) Identify any and all documents referring to, relating to or reflecting said agreement.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 129:
See Objections and Answer to Interrogatory No. 128, which are incorporated by reference
as though set forth herein in full.
INTERROGATORY NO. 130: Was this Defendant ever allowed to use the trademark or logo of any other company, including but not limited to, its predecessor or related company, on any products Defendant sold, distributed or installed, and if so please state:
(a) The trademark or logo used by you;
(b) The company allowing such use of its trademark or logo;
(c) The time period such use was allowed:
(d) Whether such use was by written, verbal or implied agreement:
(e) Each and every product such trademark or logo was placed upon;
(0 Identify all documents which refer to, relate to or reflect the use of such trademark or logo.
SECOND AMENDED ANSWER TO INTERROGATORY NO. 130:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
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burdensome, compound, vague and ambiguous and calls for speculation. Abex also objects to this interrogatory on the ground that it purports to shift the burden of
establishing product identification from plaintiffs to Abex. Abex further objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the grounds that such information or materials lack relevance and are not reasonably calculated to lead to the discovery of admissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery of admissible evidence.
Abex also objects to this interrogatory to the extent to which it purports to seek information or materials regarding entities other than Abex.
Abex further objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Subject to and without waiving these objections, and to the best ofcurrent and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the
223
manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestoscontaining automotive friction products in 1987 and no longer operates any friction product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with persona] knowledge ofthe information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (1(H)) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, and documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents of Abex, which number in excess of ten (10) million and include an estimated three (3) million sales records, are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge, it reflects the general nature of the contents of boxes of documents and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes ofcopying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the
224
burden ofderiving or ascertaining the response to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes ofdocuments, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes of telephone conversations and other records relating to workers' compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and litigation; insurance coverage issues, claims and litigation; real estate issues, claims and litigation; real estate and business transactions; labor and employment issues, claims and litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or management; as well as other legal issues, transactions and claims.
225
When a plaintiff avails himself or herself of the offer to inspect the documents, Abex will remove any documents with respect to which it claims privilege, on a box-by-box basis, and will prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which the documents were inspected. Any dispute as to the propriety of any objection can thereafter be
resolved by the Court. INTERROGATORY NO. 131: From 1940 to present, state whether Defendant and/or predecessor or related company ever provided workers' compensation health, accident and disability and/or life insurance coverage for its employees, and if so:
(a) Withdrawn by plaintiffor stricken by the Court; (b) State whether such insurance carriers) ever conducted any dust counts or studies,
industrial hygiene surveys or other tests relating to any asbestos-containing products that Defendant's employees may have been working with or around; and, (c) If you response to subpart (b) hereof is in the affirmative, please indicate the date ofeach such count, study, survey or other test and identify all documents relating thereto. SECOND AMENDED ANSWER TO INTERROGATORY NO. 131:
Abex objects to this interrogatory on the grounds that it is overly broad, unduly
burdensome, compound, vague and ambiguous and calls for speculation.
Pursuant to the Court's April 13,2000 Order, Abex's answer to this interrogatory is
limited to the years between 1930 and 1980. Abex also objects to this interrogatory to the extent it purports to seek information or
materials regarding time periods and products that are not at issue in these cases, on the grounds
that such information or materials lack relevance and are not reasonably calculated to lead to the
discover of admissible evidence. To the extent it purports to seek information or materials
regarding the working conditions ofAbex employees, this interrogatory is further objected to on
226
the grounds that such information or materials lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery ofadmissible evidence. Abex objects to this interrogatory on the grounds that the information or materials it purports to seek lack relevance to the issues arising in these cases and are not reasonably calculated to lead to the discovery ofadmissible evidence.
Abex also objects to this interrogatory to the extent to which it purports to seek information or materials that have been gathered, received, or prepared in the course of litigation, or which are otherwise subject to the attorney-client privilege, protected by the attorney workproduct doctrine, the rule protecting materials prepared in anticipation of and/or in connection with litigation, or any other applicable privilege.
Abex further objects to this interrogatory to the extent to which it purports to seek medical records or privileged personnel information, which Abex will not provide absent an appropriate waiver of the applicable privilege.
Subject to and without waiving these objections, and insofar as Abex understands this interrogatory:
SECOND AMENDED ANSWER TO INTERROGATORY NO. 131 fbh To the best of current and reasonably available information and belief, industrial hygiene surveys were conducted at Abex facilities by Abex's industrial hygienists and their staff, and in at least one instance by an insurance carrier, in conjunction with Abex employees. SECOND AMENDED ANSWER TO INTERROGATORY NO, 131 fc): . To the best of current and reasonably available information and belief, unknown. Abex has made a reasonable and good faith effort to obtain the requested information, to the extent that
227
it is not equally available to plaintiffs, by making a good faith search of locations where documents containing this information, if it exists, should be found, where appropriate, by inquiry to other natural persons or organizations.
Abex's lack of personal knowledge is due to the following: Abex discontinued the manufacture and sale of asbestos-containing railroad friction products in 1977 and asbestos-containing automotive friction products in 1987 and no longer operates any friction . product manufacturing facilities. There are no current Abex employees, officers who worked for Abex, or directors who sat on its Board during the period Abex manufactured and sold friction products with personal knowledge of the information contained in all the records and documents that might be responsive to this interrogatory.
Abex's corporate existence spans a period of more than one hundred (100) years, during which time it underwent numerous changes in its corporate structure, management, headquarters and name. The volume of records generated, arid documents accumulated, during that time was enormous. Therefore, no reasonable possibility can exist that Abex has in its possession all such records and documents, or that it otherwise has knowledge of the information contained in all such records and documents.
The existing business records and documents ofAbex, which number in excess ofseven (7) million (excluding an estimated three (3) million non-railroad sales invoices), are preserved in the order in which they were found. No summary, abstract, or compilation of the contents of the Abex document repository has been prepared and to the best of Abex's knowledge, no such document exists. In the past, Abex has provided parties with a document entitled "Finding Aid." The Finding Aid is not a summary, abstract, or compilation. To the best of Abex's knowledge.
228
it reflects the general nature of the contents of boxes ofdocuments and provided with the intention of affording parties a reasonable opportunity to examine, audit, and inspect the records contained in the repository for purposes of copying or preparing their own abstracts or summaries. There was never a central corporate filing system of Abex records and documents. Therefore, the burden ofderiving or ascertaining the response to this interrogatory, if at all, is substantially the same for plaintiffs as Abex.
Pursuant to Illinois Rules of Civil Procedure, plaintiffs will have a reasonable opportunity to examine, audit, inspect and to make copies, compilations, abstracts, or summaries of these boxes of documents, which will be produced to plaintiffs at Abex's facility in Brooklyn, New York, where they are maintained in the normal course of business, should plaintiffs decide to inspect them.
Abex has no comprehensive list or log of the documents with respect to which it claims privilege. In the past, when Abex has had cause to review some.boxes of documents, it has segregated and/or tagged certain documents with respect to which it claims privilege. The best specificity that Abex can presently provide as to the documents with respect to which it claims privilege is as follows: Documents passing between Abex and/or its predecessors or divisions, on the one hand (collectively "Abex"), and their attorneys, both outside and inhouse counsel, on the other hand, as well as documents prepared at the request of, or for the benefit of such counsel or setting forth mental impressions of the attorneys on matters concerning Abex. These documents, include, but are not limited to, correspondence, memoranda, notes oftelephone conversations and other records relating to workers* compensation and personal injury issues, claims and litigation (asbestos and non-asbestos related); environmental issues, claims and
229
litigation; insurance coverage issues, claims and litigation; real estate issues, claims and
litigation; real estate and business transactions; labor and employment issues, claims and
litigation; anti-trust issues, claims and litigation; legal issues related to corporate governance or
management; as well as other legal issues, transactions and claims.
When a plaintiff avails himselfor herself of the offer to inspect the documents, Abex will
remove any documents with respect to which it claims privilege, on a box-by-box basis, and will
prepare and serve a privilege log on plaintiff within sixty (60) days after the last date upon which
the documents were inspected. Any dispute as to the propriety ofany objection can thereafter be
resolved by the Court.
Dated: October__, 2007
By: Thomas L. Orris, Illinois Bar #6200619 Williams Venker & Sanders LLC Bank of America Tower 100 North Broadway 21st Floor St. Louis, Missouri 63102 (314) 345-5000 (314 345-5055 FAX
Attorneys for Defendant Pneumo Abex LLC, successor in interest to Abex Corporation
230
In Re: Asbestos Litigation Filed bv the SimmonsCooper. LLC
CERTIFICATION
Under penalties as provided by law pursuant to Section 1-109 of the Code ofCivil Procedure,
the undersigned certifies that the statements set forth in SECOND AMENDED ANSWERS OF
PNEUMO ABEX LLC, SUCCESSOR IN INTEREST TO ABEX CORPORATION, TO
PLAINTIFFS* INTERROGATORIES are true and correct, except as to matters therein stated to
be on information and beliefand as to such matters the undersigned certifies as aforesaid that he
verily believes the same to be true.
/
EXHIBIT A
DIRECTORS OF ABEX CORPORATION BETWEEN 1930 AND 1980
NAME
Allen, Samuel G.
Anderson, K.
Armitage, C.
Bailey, Ralph E.
Baldwin, Ernest E.
Belury, G.
Berg, Eugene P.
,
Biggs, R.W.
Blume, W.A.
Bourke, W.O.
Brush, C.E.
Buschman, Howard C. Sr.
Clapp, P.H. Jr.
Coffin, Joel S.
Coleman, W.W.
Conway, S.S. Jr.
Crane, Winthrop M. Jr.
Cummings, Tilden
Curtis, James B.
Cutler, Otis H.
Cutler, William F.
Davidson, Robert J.
Davis, Arthur V.
DATES 1935-1946 1971 1931-1933 1976-1982 1923-1933 1969-1980 1972-1981 1964-1981 1946 1980-1988 1956-1964 1964-1968 1970-1980 1916-1934 1939-1956 1968-1983 1931-1944 1961-1980 1916-1924 1916-1923 1916-1959 1916-1931 1929-1962
NAME Davison, H.F. Decker, G. Denison, William Dickey, C.D. Drury, S.S. Dunn, KemptonFinigan, Thomas Fitzpatrick, Frederick F. Floe, Carl F. Foote, Alfred S. Frick, Raymond A. Frost, F.W. Gagnebin, Albert P. Gallagher, Joseph Gilbert, LJ. Given, William B. Jr. Glore, Charles P. Gott, Rodney C. Hannan, Kenneth M. Hansen, J.A. Harrah, Robert E. Herlihy, F.B. Hillman, Stanley E.G. Hof, E.C. Hord, S Y.
,
DATES 1940-1961 1970 1955-1963 1943-1945 1941-1944 1952-1969 1929-1934 1922-1925 1968-1980 1961-1974 1969-1983 1971 1966-1983 1916-1919 1931-1932 1929-1966 1929-1934 1963-1969 1956-1970 1974 1976-1986 1964-1983 1968-1972 1942-1944 1968-1972
NAME Home, B.R. Humphrey, Arthur L. Hutchins, John S. Huttig, A.B. Johns, W.T. Johnson, William B. Josephs, Devereux C. Judd, George M. Kelly, W.T. Jr. Kessler, W.D. Knox, James B. Knox, Henry C. Konker, G.E. MacDonald, A.C. Marshall, Waldo H. McCall, S.T. McCulloch, P.L. Jr. McGarrah, Gates W. Monda, C.N. Munkenbeck, H.H. Jr. Murray, Lawrence N. Naumann, William L. Newbert, F.B. Ortman, Randolph Pearce, William G. .
DATES 1964-1974 1925-1934 1956-1968 1968 1964 1968-1987 1953-1967 1928-1934 1956-1970 1964 1921 1916-1924 1972-1973 1970 1916-1925 1941-1945 1964 1916-1931 1974 1964 1943-1966 1979-1984 1964 1919-1932 1916-1961
NAME
Persbacker, Victor L.
Pomeroy, Daniel E.
Pryor, Samuel F.
Prytherch, R.M.
Raddatz, W.D.
Rennie, D.K.
Romine, George L.
Russell, T.W. Jr.
Ryerson, E.L.
Sargent, William D.
Schaefer, N.H.
Scherler, E.A.
Schnoes, R.F.
Schurman, G.M.
Scribner, Gilbert H. Jr.
Sheffidd, JJ.
Sibbald, E.B.
Snow, Elmer J.
Snow, Fred W.
.
Stevens, John P. Jr.
Tayp, M.
Terbell, Joseph B.
Terry, M.B.
Thompson, James S.
Trainer, Maurice N.
DATES 1964?1980 1916-1964 1916-1933 1941-1944 1970-1974 1974 1969-1976 1967-1972 1941-1961 1902-1937 1964 1974 1977-1984 1947-1967 1960-1969 1964 Unknown 1916-1947 1916-1930 1947-1969 1964 1916-1958 1970 1929-1932 1944-1969
NAME Van Gordon, Jerome W. Watson, A.K.
DATES 1968-1974 1957-1966
EXHIBIT B OFFICERS OF ABEX CORPORATION BETWEEN 1930 AND 1980
NAME Aigeltinger, A. Altmeyer, C.E. Ames, George C. Anderson, Edward R. Anderson, Kenneth Belury, George
Biggs, F.B. Biggs, Robert W. Black, William A. Blume, William Bradley, George R. Bridgewater, Boyd E. Brush, Cyrus Buschman, H.
Clapp, Phillip H. Jr. Conway, Stephen
Cottle, 0. Crocombe, William E. Cutler, 0: Cutler, William
TITLE Vice President Vice President Treasurer Vice President Vice President Vice President President Vice President Vice President Vice President Vice President Vice President Vice President Vice President & Secretary Vice President Secretary Vice President Vice President President Treasurer Vice President President Vice President
DATES 1934-1941 1979 1921-1931 1957 1966-1970 1957-1970 1970-1980 1952-1954 1964-1965 1943-1955 1944-1949 1968 1964 1948-1967 1968-1983
1973-1978 1957-1960 1980-1985 1968-1983 1940-1952 1903-1916 1921-1953
NAME Davidson, R.J. Davis* A.V. Denison, William Dunn, Kempton
Finigan, Thomas Forquer, Rush M. Fraula, Scott W. Frick, Raymond A. Gallegher, Joseph Gilbert, H.JC. Gillies, H.A. Given, W.B. Jr. Herlihy, Francis B. Hillman, Stanley E.G. Hutchins, John S.
Huttig, A.B. Iwarsson, B. Janke, F. Jordan, William B. Judd, George M. Kelly, William T. Jr.
Knox, Henry C. Konker, G.E,
TITLE Secretary Vice President Vice President Treasurer President Vice President Vice President Vice President Vice President Vice President Treasurer Vice President President Vice President Vice President Vice President President Secretary & Treasurer Vice President Treasurer Treasurer Secretary Vice President President Treasurer
Vice President
DATES 1902 1952 1958-1961 1943-1953 1954-1963 1919-1931 1961-1983 1953-1963 1961-1964 1916 1902 1940 1929-1950 1966-1978 1968 1946-1963 1963-1966 1968 1979-1980 1935 1953-1959 1916-1929 1946 1966-1968 1917-1920 1971-1974
NAME MacGowan, W. Mandy, D.G. McCall, Sumner T.
McCulloch, Paul L, Jr. McGowan, William Mitten, Robert Parsons, Joseph
Pearce, William G. Persbacker, Victor L.
Pettis, Clifton D. Petrus, Thomas W. Raddatz, M.D. Rennie, D.K. Romine, George L. Russell, Thomas W. Jr.
Sargent, William D. Schaefer, Raymond Shepard, J.R. Spencer, J. Brooks Stone, Charles B. Ill Terbell, Joseph B.
TITLE
DATES
Vice President
1930
Vice President
1979-1980
Vice President & Treasurer Secretary
1931-1932 1943-1946
Vice President
1960-1965
Vice President
. 1917-1931
Vice President
1968
Secretary Vice President
1930-1943
President
1916-1919
Senior Vice President Vice President Administration
1960-1967 1967-1982
1917-1921
Vice President
1919-1955
Vice President
1977-1978
Vice President
1972-1980
Vice President
1972-1977
Vice President & Treasurer First Vice President President
1959-1967 1967-1968 1968-1970
President and First Vice President 1902-1903
Vice President
1951-1968
Vice President
1971
Vice President
1943-1953
Vice President
1960-1962
Vice President President Vice President
1917-1918 1919-1929 1931-1959
NAME Terry, Maynord B. Thompson, James S. Trainer, Maurice N.
Ward, Gilfry
.
Weigel, George K.
Weiger.RJ.
Wright, Charles P.
TITLE Vice President Vice President First Vice President President Vice President Vice President Vice President Vice President
DATES 1964-1971 1917-1928 1943 1950-1954 1957-1969 1968 1971-1974 1925-1932
FEB-14-2803 09:33
SUfUN HRRTSHORN SCOTT
Jobsite
3M Corp. AO. Smith
A.P. Green
ADM Acme Steel
Air Products Alcan Piant Alton Box Board
Alton Box Board Alton Box Board Alton Powerhouse Mon Square Shopping Center
Alton State Hospital AmaxCorp. American Can , American Car American Colloid American Steel American Water
American Zinc
Amoco Anderson Hospital Anheuser-Busch Brewery
Baldwin Powerhouse
Bernes Hospital Barry WehmiBer
Bell Telephone Bethaito lumber Company Bethaito School District
Bethlehem Steel Beverly Farms
Blebel Brothers Roofing Company Birmingham & Prosser
Blue Island School DtsL
Boeing
Brooks Food Bungee Corp.
-
Bungee Corp.
Bungee Corp. Bungee Corp.
Bungee Corp.
Bungee Corp. Bungee Corp.
Bungee Corp.
Bungee Corp.
Bungee Corp.
Bungee Corp. Bungee Corp.
Bungee Corp. Bungee Corp. Bungee Corp.
Ci& Bedford Park Granite City Mexico
Decaiur RJverdale Alton Alton Alton Godfrey Highland Alton Alton Alton Sauget Si Louis Si Louis Granite City Granite City Belleville East St Louis Wood River Maryville SL Louis Baldwin St Louis St Louis SL Louis Bethaito Bethaito Bums Harbor Godfrey
SL Louis SL Louis Blue Island SL Louis Colllnsvaie Avert Cairo Carml Dale East Prairie Fountain Bluff Glenn Harrisburg Linda McMutiln Metropolis Miller City Morehouse Prices Landing Pulaski
.
309 637 1708 P.02
EXHIBIT A
Paget
State
IL IL MO IL IL U. IL IL IL IL IL IL IL IL MO MO IL IL IL IL IL IL MO IL MO MO MO IL fL IN IL MO MO IL MO IL MO IL IL IL MO IL a. IL MO MO IL IL MO MO IL
FEB-14-2033 09:33
aifUN WRT9CRN SCOTT
Jobsite
Bungee Corp.
Bungee Corp.
Bungee Corp. Bungee Corp. Bungee Corp. Busch & Latta Busch Stadium
CP. Hall Co. CP.C International Com Products
Campbell Soup Caterpillar
Celotex Corporation Cerro Copper CertalnTeed
Chicago CivicCenter
Christ HospHa! Chrysler Corporation
City of Chicago Clark Oil Clinton Powerhouse Coffeen Powerhouse Coltlnsvflle Lumber Company Combustion Engineering Commonwealth Steel Consolidated Aluminum
Continental Can Continental Can Crescent Electric Cumberland Powerhouse ' Cupplea Mfg. Darlings Diamond Construction
Dow Chemical
'
Dresden Nuclear Poerhouse
Duck Creak Powerhouse Durapfex East SL Louis Housing Authority
Eastgate Shopping Center
Federal Steel
Fischer Building Supply Ford Motor Company
Forest Park Highlands G.D. Searie & Co. Gardner Denver
Gary Sheet & Tin
General Chemical
General Motors General Motors
General Radiator General Steel Grace Chemical
Ridgway
Shawneetown
SL Louis
Tamms
New York
SL Louis
SL Louis
Bedford Park Summit
Chicago
Peoria Fort Dodge
Sauget East SL Louis
Chicago Oak Lawn
SL Louis
-
Chicago Hartford Clinton Coffeen Coiltnsvfile SL Louis
Madison Madison
Chicago
SL Louis Chicago
Cumberland City SL Louis Chicago Quincy
JoGet Morris .
Peoria Herrin East SL Louis
East Alton
East Alton
East Alton
SL Louis
SL Louis Skokie Quincy
Gary
Washington Park
SL Louis WentzvDte Mount Vernon Granite City Memphis
309 637 1708 P.03
State IL
IL MO (L NY MO MO IL IL IL U. IA IL IL IL H. MO IL 8. MO a. IL MO IL IL IL MO n. TN MO IL IL IL IL IL
tt.
IL IL IL IL MO MO IL IL IN IL MO MO IL IL TN
Page 2
FEB-14-2003 09533
S&UN HARTSHORN SCOTT
Jobsite
Granite City Steel Granite Sheehmeta! Great Lakes Naval Training Center
Harblson Walker
Hartford Lumber Company
Heldtmsn Steel HSsboro Glass
Matter Packing Company
Illinois American Water
Illinois Brick
Illinois Centred Railroad
Inland steel
Inland Steel
Inland Steel Powerhouse
Inter-Lake Steel Jefferson Smurfit
Jewish Hospital . Johnson & Johnson
Joppa Powerhouse Kaiser Aluminum
Kaiser Refractories
Ken's Texaco Kincaid Powerhouse
Labadie Powerhouse Laclede Steel
Ladede Steel
Lever Brothers
Litchfield High School
Malfinckrodt Chemical Mallinckrodt Chemical
Marathon OB
McDonnell Douglas
McCormick Place
.
Mead Packaging
Meramec Mining
Meramec Powerhouse
Mercy Hospital
MeredosJa Powerhouse
Metro Sanitary
Midwest Rubber
Mlkco Grain Company
Mishawaka Pipe & Valve Corporation
Missouri Pacific Railroad
Missouri Power & Light
Mobil 08 Refinery
Monsanto Queeney
Monsanto Sauget
National Lead
National Marine
National Refractories
National Steel
Granite City Granite City N. Chicago Vandalia Hartford Granite City Hillsboro
St Louis ' East St Louis
Blue Island E.St. Louts
East Chicago Hammond East Chicago Chicago Alton St Louis Bedford Park Joppa Mexico Mexico Wood River Kincaid Labadie Alton
Venice SL Louis Litchfield SL Louis Weldon Springs Robinson SL Louis Chicago Godfrey Sutfivan St Louis Chicago Meredosla Cicero E. SL Louis Cairo Mishawaka
Bonne Terre Herman Sauget
SL Louis Sauget Granite City Hartford Mexico Granite City
309 637 1708 P.04
State
1L 1L IL MO
IL IL U. MO L IL IL IL IN IN IL It MO IL IL MO MO IL IL MO IL IL MO IL MO MO IL MO IL IL MO MO IL IL IL IL H. (N MO MO IL MO H. IL IL MO MO
Page 3
FEB-14-2003 09:34
SUSRIN HARTSHORN SCOTT
Jobstte
Newton Powerhouse Northwestern University O'Hara Airport Obamaster Glass Olin Corp. Owens Illinois Glass Owens Illinois Glass
PET Inc.
Pfizer
.
Phillips 66
PiasaTool & Die
Pilot Knob Pellet Rant
Pittsburgh Plate & Glass
Portage Des Sioux Powerhouse
Post Office Pro Gas
Pure 08 Refinery Quantem Chemical Ralston Purina Republic Steel Republic Steel Revere Electric Rexall Drug Warehouse Reynolds Aluminum Reynolds Metals Roxana School Rush-Presbyterian Hospital S.LUSJ.U. Sangamo Electric Santa Fe Railroad Yards Sara Lee Bakeries Scott Air Force Base Shell Oil Sherwin-Williams Sinclair Refinery Powerhouse Small Arms Plant
Southern Equipment Springfield Powerhouse St Antony's Hospital St Clair Roofing Company St Clair Square St Elizabeth's Hospital SI Francis Hospital St Joseph Lead Mine St Louis Paint Co. St Lukes
SI Mary's Hospital Staleys
Standard Heating Company Standard 08
City
Newton Evanston Chicago East St Louis East Alton Alton Chicago Heights
St Louis East St Louis East St Louis Alton Pilot Knob
Crystal City Portage Des Sioux Cincinnati
Granite City Lockport Morris
St Louis Chicago Yankeetown Chicago St Louis Chicago McCook Roxana Chicago Carbondale Edwardsvllle Marion Chicago Deerfield BefteviHe Wood River Chicago
East Chicago SL Louis
St Louis
Springfield
Alton
.
University City Fairview Heights
BellevtUe Litchfield SL Joseph St Louis Chicago East St Louis Decatur St Louis Wood River
309 S37 1708 P.05
State
n. IL a. MO IL IL IL MO IL IL IL MO MO MO OH n. IL IL MO IL IN IL
MO IL IL IL 0. IL IL IL IL
ft.
IL IL IL
IL MO
MO
ft.
IL MO IL IL IL MO MO IL IL IL MO IL
Page 4
FEB-14-2003 09:34
SUAIN HARTSHORN SCOTT
Jobsite
Stepan Chemical Sterling Steel StudebaHar Corporation Texaco 03 Tucktepa U.S. DepL of Labor U.S. Steel
U.S. Steel Unton 03
Union Starch Union Taik Car Universal Match University of Illinois Medical Center Venice Powerhouse Washington School1 Waukegan Powerhouse WedgeBank Western Electric Westlngfiouse Wisconsin Steel Wood River School Wood River Township Hospital Zion Nuctear Plant
mu
Swood Sauget South Band Lawrencevffla Carbondate
Roto Chicago
Gary LaMont Qranito City
East Alton Marlon Chicago
Venice Danville Waukegan Alton ' East Alton ' St Louis Chicago Wood River Wood River Zion
309 637 1709 P.0S
State
IL 8. IN IL H. MO
H. IN IL IL IL IL IL IL IL IL IL IL MO IL IL IL IL
Page 5
TOTAL P.06