Document mqx40Y9xMdpRyEJ2d6BOR1VO0

DISTRICT COURT, BOULDER COUNTY, COLORADO Boulder County Justice Center 1777 6th Street P.O. Box 4249 Boulder, CO 80306 IN RE: ASBESTOS CASES Attomey/Party Without Attorney: Name(s): Mary Price Birk, #10415 Susan R. Hahn, #27344 Address: Baker & Hostetler LLP 303 E. 17th Ave., #1100 Denver, Colorado 80203 Phone Number: 303-861-0600 Fax Number: 303-861-7805 COURT USE ONLY A Case No. 89 CV 2000 Div: Ctrm: UNION CARBIDE'S RESPONSE IN OPPOSITION TO: 1. PLAINTIFFS' FILING OF THE PREVIOUSLY PROVIDED KANAWHA COUNTY, WEST VIRGINIA ORDER OF 10/2/02 WITH DOCUMENTATION IN SUPPORT OF THEIR MOTION; AND 2. PLAINTIFFS' SUPPLEMENTAL FILING RE: WAIVER OF PRIVILEGE BY UNION CARBIDE AS TO DISCLOSED DOCUMENTS Union Carbide Corporation, by and through its counsel, Baker & Hostetler LLP, submits the following Response to the above-entitled filings of the plaintiffs, stating as follows: 1. Plaintiffs cannot change the law of Colorado through the use of emotionally-charged language, false accusations against undersigned counsel, and unsupported argument. Colorado expressly rejects the "cow out of the bam" approach to the inadvertent disclosure of privileged documents. Floyd v. Coors Brewing Co., 952 P.2d 797, 808-809 (Colo. App. 1997), rov'd on other grounds, 978 P.2d 663 (Colo. 1999). Once again, plaintiffs fail to cite any legal authority for the proposition implied by their "supplemental filing," i.e., that if privileged documents are inadvertently disclosed and used in litigation in some other state's jurisdiction, the privilege has been destroyed here. Once again, this is simply not the law in Colorado. 2. After the hearing on June 13, 2003, Plaintiffs' counsel handed Union Carbide's counsel, Mary Price Birk, a small stack of privileged Union 1 Carbide documents. These documents were not attached to any disclosure certificate or any motion. Whether plaintiffs intended to use these documents for some actual purpose in this litigation is unknown. The privileged Union Carbide documents filed with the Court on June 23, 2003 include most of the documents handed to Ms. Birk on June 13, 2003 plus some additional privileged documents. 3. The motive of plaintiffs' counsel in filing these privileged documents with the Court is highly suspect since there is no current need for them in Colorado. If the intent was to show the Court why the West Virginia court did not deem the documents privileged, then the documents could have been filed under seal for an in camera review. Instead, plaintiffs simply attached the documents to a copy of the West Virginia court's order. The third prong of the test for waiver by inadvertent disclosure under Floyd is whether "meaningful confidentiality" may be restored. The Court should reject plaintiffs' blatant attempt to manipulate the outcome of this test through unnecessary, contrived and arguably unethical dissemination of privileged documents for no known purpose other than to destroy the privilege.1 See also Union Carbide's Response to Affidavits Filed by Plaintiffs on 6/2/03 Concerning Plaintiffs' "Motion for Summary Judgmenf Regarding Privileged Documents at 3, H 7 (outlining plaintiffs' counsel's failure and refusal to produce Union Carbide-related documents when requested by Union Carbide's counsel beginning in October 2001; plaintiffs' counsel's failure to notify Union Carbide that they were in possession of facially privileged documents in violation of Colorado's ethical rules; and plaintiffs' counsel's exploitation of Dr. Egilman and his website to disseminate privileged documents for the purpose of destroying privilege). 4. The Kanawha County, West Virginia court's order is not determinative nor particularly persuasive with respect to Union Carbide's assertion of privilege in Colorado. West Virginia statutes, West Virginia procedural rules and West Virginia case law are not identical to Colorado law. In addition, Union Carbide Is appealing the West Virginia court's ruling with respect to the privileged documents. 5. Union Carbide's counsel has never misrepresented the outcome of the West Virginia proceedings or any other facts to this Court. At the June 13, 2003 hearing in this Court, Union Carbide's counsel frankly stated to this Court that the West Virginia and Texas courts' rulings were unfavorable to Union Carbide, while the California court ruled in Union Carbide's favor, upholding the privileges and ordering the return of the privileged documents. In its briefs, Union Carbide described the letters written to plaintiffs' counsel (including Goldberg Persky) and the motion for protective order filed in the West Virginia litigation to rebut plaintiffs' unsupported assertions that Union Carbide had "never told" Goldberg Persky that privileged documents were inadvertently produced. 1 Once again, this flies in the face of plaintiffs' counsel's ethical duties with respect to his possession of privileged documents. Colorado Bar Association Ethics Committee Formal Opinion 108, adopted May 20, 2000,29 Colo. Law. 55 (Sept. 2000). 2 For the reasons stated above, in Union Carbide's Motion to Strike, in Union Carbide's Response in Opposition to Plaintiffs' "Motion for Summary Judgment," in its Response to Affidavits Filed by Plaintiffs on 6/2/03 and in its Motion for Protective Order, Union Carbide respectfully requests that the Court enter an order striking or denying Plaintiffs' Motion for Summary Judgment Re: Waiver of Privilege by Union Carbide in its entirety. Union Carbide Corporation also requests that the Court enter a protective order requiring Plaintiffs to return to Union Carbide the six privileged documents described in Union Carbide's original Motion for Protective Order, and all copies of all documents attached to "Plaintiffs' Filing of the Previously Provided Kanawha County, West Virginia Order of 10/2/02 with Documentation in Support of Their Motion for Summary Judgment Re: Union Carbide Corporation's Privilege Claims," and prohibiting any further use of any of these documents in this litigation; and such further relief as the Court deems appropriate. Denver, Colorado 80203 (303)861-0600 ATTORNEYS FOR DEFENDANT UNION CARBIDE CORPORATION 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 8th day of July 2003, a true and correct copy of the above and foregoing UNION CARBIDE'S RESPONSE IN OPPOSITION TO: 1. PLAINTIFFS'FILING OF THE PREVIOUSLY PROVIDED KANAWHA COUNTY, WEST VIRGINIA ORDER OF 10/2/02 WITH DOCUMENTATION IN SUPPORT OF THEIR MOTION; AND 2. PLAINTIFFS' SUPPLEMENTAL FILING RE: WAIVER OF PRIVILEGE BY UNION CARBIDE AS TO DISCLOSED DOCUMENTS was served via JusticeLink or by U.S. mail, postage prepaid, as indicated to: J. Conard Metcalf, Esq. Trine & Metcalf, P.C. 1435 Arapahoe Ave. Boulder, CO 80302-6390 Attorneys for Plaintiffs VIA JUSTICEUNK F. James Gallo, Esq. F. James Gallo Law Office 370 Birch Street Denver, CO 80220-4948 Attorneys for Empire Ace, Standard VIA U.S. MAIL Mary Wells, Esq. Wells, Anderson & Race LLC 1700 Broadway, Suit 1020 Denver, CO 80290 Attorneys for 3M a/k/a Minnesota Mining & Manuracturing VIA JUSTICEUNK Dennis H. Markusson, Esq. William B. Stanton, Esq. Markusson Green & Jarvis 999 18th Street, Suite 3300 Denver, CO 80202-2433 Attorneys hr Plateau, M.H. Dietrick and Flintkote VIA JUSTICELINK William F. Campbell, Esq. White & Steele, P.C. 950 17th Street, 218t Floor Denver, CO 80202-2804 Attorneys for Anchor Packing and Gariock VIA JUSTICELINK William V. Cox, Esq. 1625 Larimer Street, #2707 Denver, CO 80202 Attorneys forAtlas Turner VIA U.S. MAIL J. Scott Lasater, Esq. Lasater & Martin 8122 S. Park Lane, Suite 205 Littleton, CO 80120 Attorneys forAzrock VIA U.S. MAIL Arthur K. Kutzer, Esq. Senter Goldfarb & Rice LLC 400 South Colorado Blvd., #700 Denver, CO 80222 Attorneys for United Technologies VIA U.S. MAIL 4 Bradley A. Levin, Esq. Christopher M.. Rose, Esq. Roberts Levin & Patterson, P.C. 1660 Wynkoop Street, Suite 800 Denver, CO 80202 (303) 575-9390 Attorneys for Georgia Pacific VIA JUSTICEUNK David P. Hersh, Esq. Diane Vaksdal Smith, Esq. Burg & Eldredge, P.C. 40 Inverness Drive East Englewood, CO 80112 Attorneys for Highland Stucco VIA JUSTICEUNK Timothy B. Barnard, Esq. Barnard, Mezzanotte and Pinnie 218 West Front Street P.O. Box 289 Media, PA 19063-0289 Attorneys for Borg Warner VIA U.S. MAIL H. Keith Jarvis, Esq. William T. Webb, Esq. MARKUSSON, GREEN & JARVIS 999 18th Street, Suite 3300 Denver, CO 80202-2433 Attorneys for General Electric VIA JUSTICEUNK Gary M. Clexton, Esq. Charles E. Weaver, Esq. Miller ASteiert, PC Wood Ris & Hames P.C. 1901 W. Littleton Blvd. 1775 Sherman St.. #1600 Littleton, CO 80120 Denver, CO 80203-4313 Attorneys for John Crane, Inc. and TDY Attorneys for Riley Stoker and Industries, Inc. Congoleum Corporation VIA JUSTICEUNK VIA JUSTICEUNK Lee Mickus, Esq. Wheeler Trigg & Kennedy PC 1801 California Street, #3600 Denver, CO 80202-2636 Attorneys for Mine Safety Appliances VIA U.S. MAIL Tracy H. Fowler, Esq. David N. Wolf, Esq. Snell & Wilmer 15 West South Temple, #1200 Gateway Tower West Salt Lake City, UT 84101 Attorneys for CBS (Westinghouse) VIA U.S. MAIL James M. Miletich, Esq. McConnell, Siderius, Fleischner, Houghtaling & Craigmile, LLC 2401 15th Street, Suite 300 Denver, CO 80202 Attorneys for Rio Grande and Rapid American VIA JUSTICEUNK John F. Hensley, Esq. 1877 Broadway, Suite 702 Boulder, CO 80302 Attorney for Crown Cork & Seal VIA JUSTICEUNK 5 Alice Woodall, Esq. Steven Kaufmann, Esq. Morrison & Foerster 370 17th Street, #5200 Denver, CO 80202 Attorneys for Grefco and General Refractories VIA JUSTICEUNK William David Byassee, Esq. Lisa C. Forbes, Esq. Jackson Kelly PLLC 1099 18th Street, Suite 2150 Denver, CO 80202 Attorneys for Crane Co. VIA U.S. MAIL Karen Wheeler, Esq. Levy, Morse & Wheeler, P.C. 6400 S. Fiddlers Green Circle, Ste. 900 Englewood, Colorado 80111-4923 Attorneys for Kaiser Gypsum VIA JUSTICEUNK Blair J. Trautwein, Esq. Wick, Campbell, Bramer, et al. P.O. Box 2166 Fort Collins, Colorado 80522 Attorneys for Jones-Heartz Ume VIA JUSTICEUNK Michael D. Plachy, Esq. Michelle A. Pinkowski, Esq. Rothgerber Johnson & Lyons LLP One Tabor Center, Suite 3000 1200 Seventeenth Street Denver, Colorado 80202 Attorneys for Honeywell Techonology Solutions f/k/a Allied Signal Technical Services Corp. VIA JUSTICEUNK Susan G. Pray, Esq. The Kobayashi Law Firm P.C. 1633 Fillmore Street, #2100 Denver, CO 80206 Attorneys for Metropolitan Life VIA JUSTICEUNK Michael O'Donnell, Esq. Wheeler, Trigg & Kennedy 1801 California Street Denver, CO 80202 Attorneys for Ford Motor Company VIA JUSTICEUNK John D. Hayes, Esq. Senter Goldfarb & Rice, LLC 400 South Colorado Blvd., #700 Denver, CO 80222 Attorneys forPecora Corp. VIA JUSTICEUNK Michael Goodman, Esq. COOPER & CLOUGH, P.C. 1512 Larimer Street, Suite 600 Denver, CO 80202-1621 Attorneys for Washington Group International, Inc. VIA U.S. MAIL Peter J. Komeffel, Jr., Esq. Richard B. Benenson, Esq. Brownstein Hyatt & Farber P.C. 410 17th Street, 22nd Floor Denver, CO 80202-4437 Attorneys for Standard Motor Products VIA U.S. MAIL 6 Charles Casteel, Esq. Davis Graham & Stubbs LLP 1550-17th Street, Suite 500 Denver, CO 80202 Attorneys for General Motors VIA JUSTICEUNK Thomas L. Beam, Esq. Hall and Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202 Attorneys for Boise Cascade VIA U.S. MAIL Duly executed signeture on file at the office of Baker & Hostetler LLP 7 Page 1 of 1 Nancy Adler From: To: Sent: Subject: "LexisNexis File and Serve" <efile@fileandserve.lexisnexis.com> "'NAdler@Trine-Metcalf.com'" <NAdler@trine-metcalf.com> Tuesday, July 08, 2003 12:40 PM Case: 1989CV2000; Filing: 2120996 - Notification of Service John Conard Metcalf requested that you, Nancy Dene Adler, receive a copy of this notification for Filing ID 2120996. The details for this filing are listed below. To: John Conard Metcalf From: LexisNexis File & Serve Subject: Service of Documents in IN RE ASBESTOS vs. AP GREEN INDUSTRIES INC et al You are being served documents that have been electronically filed in IN RE ASBESTOS vs. AP GREEN INDUSTRIES INC et al through LexisNexis File & Serve. The details of this filing are listed below. You can view the documents by accessing them online at http://fi1eandserve.lexisnexis.com/logon/blank menu.asp . Court: CO Boulder County District Court 20th JD Case Name: IN RE ASBESTOS vs. AP GREEN INDUSTRIES INC et al Case Number: 1989CV2000 Filing ID: 2120996 Document Title(s): Union Carbide Response in Opposition to 1 Plaintiffs Filing of the Previously Provided Kanawha County West Virginia Order of Oct 2 2002 with Documentation in Support of Their Motion and 2 Plaintiffs Supplemental Filing re Waiver of Privilege by Union Carbide as to Disclosed Documents Authorized Date/Time: Jul 8 2003 2:39PM ET Authorizing Attorney: Mary Price Birk Authorizing Attorney Firm: Baker & Hostetler LLP-Denver Served Parties: IN RE ASBESTOS Filing Party: UNION CARBIDE Thank you for using LexisNexis File & Serve! LexisNexis offers LexisNexis File & Serve training for both new and advanced users. To learn more about LexisNexis File & Serve training options, please visit http://www.lexisnexis.com/FileAndServe/support.asp and click on Training. 7/8/03