Document p6ZXynavNrNYdoQBRO9BjEek

)No. P1A1NT1FFS ^exhibit:- Plaintiffs, vs. W. R. GRACE Sc CO. ) ) IN THE DISTRICT COURT OF ) ) COUNTY, ) ) TEXAS ) ) JUDICIAL DISTRICT ) AFFIDAVIT OF HOLLY J W. HUART, ESQ, THE STATE OF TEXAS ~ THE COUNTY OF HARRIS BEFORE ME, the undersigned authority, on this day personally appeared HOLLY J. W. HUART, known to me to be the person whose name is subscribed below, and after being duly sworn upon her oath, did depose and state as follows: 1. My name is Holly J. W. Huaxt. I am a resident of Harris County, Texas, am over the age of 18, and am otherwise competent to make and give this Affidavit. The facts set forth herein are based upon my personal knowledge and are true and correct. 2. I am an attorney licensed in the State of Texas and currently am Of Counsel to The Maierson Law Firm, P.C. 3. Prior to joining this firm, from 1993 through 1995, I acted as a consultant to the law firm of Susman Godfrey, L.L.P., who represented the plaintiffs in Block 14S Ltd, et al. v. W.R. Grace & Co.- Conn. et al.. No. 93-61850, 164th Judicial District, Harris County, Texas (herein "Block 14S"). 4. As counsel for plaintiffs in Block 145. and because of my many years of experience in discovering documents and information from W.R. Grace (herein "Grace") during the course of other litigation while employed by Bracewell Sc Patterson, Branch Pike Ganz St O'Callaghan, and through various consulting arrangements with other law firms involved in litigation against Grace during the years 1988 through 1994, I had responsibility for various discovery matters involving Grace. In this connection, I personally prepared a Notice of Deposition and Subpoena Duces Tecum of Corporate Representative(s), including both attachmentsthereto, all of which are appended to this affidavit as Exhibit "A". 5. Among the matters specifically set forth in Exhibit "A" is the following documentation as described in Section B (ix) of the Subpoena Duces Tecum: (ix) The existence, extent, and current location of the "stats sheets" and "employee exposure calculations" referred to on bates nos. 40061148, 04211770, and 4208093, and of the database from which the "Employee Exposure Calculations]" at Bates nos. 04206844-04206859 were printed out. See Appendix G. Subpoena at para. B (ix). 6. The documents referred to as Exhibit "A" were served on Grace's local counsel, Mayor Day Caldwell & Keaton (herein "Mayor Day"). 1 had numerous discussions with various individuals from Mayor Day concerning the discovery plaintiffs sought in that case. 7. Although Grace did file an Objection to certain paragraphs of the Subpoena, Grace did not object to paragraph B (ix) of the Subpoena, fise Exhibit "B". 8. In response to the Notice & Subpoena I prepared, Mayor Day, acting as counsel for Grace, prepared a written response in the form of a letter to counsel for die Block 145 plaintiffs, dated September 23, 1994. I am in possession of a copy of that letter. 9. In that response, counsel for Grace stated as follows specifically with reference to the items requested in paragraph B (ix) of file Subpoena: We are unable to locate a database. We have confirmed that there was a computer but it became obsolete and when it was shut down, its contents were eliminated or discarded. p. 4 (emphasis supplied). 10. This letter was signed by Dillon Ferguson, counsel for Grace. The list of individuals who were on the "cc" list of this letter includes names of individuals I recognize as either in-house counsel for Grace, and/or national coordinating counsel for Grace, namely Messrs. Robert Beber, Richard Senftleben, Matthew Murphy, Robert Murphy, and possibly others. 2 11. I am not aware of any confidentiality agreement or protective order that would prohibit the disclosure of the contents of the Subpoena or the Objections or the letter from Grace's counsel. 12. To my knowledge, nothing in the referenced letter was ever retracted by any counsel for Grace. 13. To my knowledge, the database was never located and/or produced to the Block 145 plaintiffs. Further, the Affiant sayeth not. SUBSCRIBED AND SWORN TO before me day of November, 1997. DANA MEEKS S MV COMMSSUN EXPVIRES April 28,1996 NOTARY PUBLIC in and for the State of Texas My commission expires m 3 NO. 93-61850 BLOCK 145, LTD, a Texas Limited Partnership, AV AMERICA GRUNDBESITZVERWALTUNGSGESELLSCHAFT MBH, a German entity, LOUISIANA WALKER, LTD., a Texas Partnership TOWER LTD., a Texas Limited Partnership, POST OAK TOWER, LTD., a Texas Limited Partnership, and HINES RANGER ASSOCIATES LIMITED, a Texas Limited Partnership, Plaintiffs, v. W.R. GRACE & CO.-CONN, and VBRMICUIiTE PRODUCTS, INC., Defendants. 9 9 9 8 8 9 9 9 9 IN THE DISTRICT COURT OF =e 164TH JUDICIAL DISTRICT JURY TRIAL REQUESTED NOTICE OF oltAL DEPOSITION AND SUBPOENA DUCES TECUM OF CORPORATE REPRESENTATIVES) TO: W. R. Grace & Co.-Conn, and Vermiculite Products, Inc., by and through their attorney of record, Dillon J. Ferguson, Mayor, Day, Caldwell &, Keeton, 1900 Nations Bank, 700 Louisiana, Houston, TX 77002 PLEASE TAKE NOTICE that, pursuant to Rules 166b,. 200, 201, 201(4), and 202 of the Texas Rules of Civil Procedure on October 7, 1994, 10:00 a.m. at the offices of Casner & Edwards, One Federal Street, Boston, Massachusetts, counsel for Plaintiffs will take ? TKO-101Q98-BLD the deposition(s) of the designated representative(s) of W.R. Grace Sc Co.-Conn, best able to testify as to the following-matters: See Exhibit A, attached. You are under a duty to designate one or more officers, directors, managing agents, or other persons with sufficient knowledge to testify for W.R. Grace Sc Co.-Conn. on information known to or reasonably available to it on these matters. A subpoena duces tecum will be issued to the witness(es) requesting the production of the documents identified on Exhibit B, attached. The deposition will be taken before a Notary Public or some other officer authorized by law to administer oaths for use at the trial herein. Such deposition(s) will continue from day to day until completed. Respectfully submitted. SUSMAN GODFRBY L.L.P. TKC-101096-BLD P. Eric Fryar, State Bar No. 07493770 Tracy K. Christopher, State Bar No. 11130300 Michael A. Lee, State Bar No. 12074620 3100 First Interstate Bank Plaza Houston, Texas 77002 Telephone: (713)651-9366 Telecopy: (713) 653-7897 Attorneys for Plaintiffs BLOCK 145, LTD, a Texas Limited Partnership; AV AMERICA GRUNDBESITZVERWALTUNGSGESBLLSCHAJPT MBH, a German entity; LOUISIANA/WAJLKER, LTD., a Texas Limited Partnership; TOWER, LTD., a Texas -2- Limited Partnership; POST OAK TOWER, LTD., a Texas Limited Partnership; and HINES RANGER ASSOCIATES LIMITED, A TEXAS LIMITED PARTNERSHIP CERmiCATE-QE_SEgYj.CE This is to certify that on this the 3*^ day of __________ , 1994, a true and correct copy of the above and foregoing instrument was served on all counsel of record in by First Class, Certified Return Receipt Requested, mail in accordance with Rules 21 <fe 21a, Tex, R. Civ. P., addressed as follows: ^ (,n f^ Dillon I. Ferguson Mayor, Day, Caldwell & Keeton 1900 Nations Bank 700 Louisiana Houston, TX 77002 TKC-101098-BLD -3- EXHIBIT A TO NOTICE OF DEPOSITION SJUB1 SA A. ABATEMENT DOCUMENTS AND DATABASES (i) Based on Matt Murphy's representations that the abatement binders in the Winthrop Square repository are current only through December 31, 1992, the existence, extent, and location of all abatement documents dated after December 31, 1992. (ii) The existence, extent, and location of all abatement documents pertaining to the abatement of a<bestovcontaining materials for any facility currently or previously owned or leased by Grace or any subsidiary located within or outside the continental United States, including but not limited to all facilities listed in Appendices A, and B-l, B-2, and B-3. (iii) The existence, extent, and location of the "asbestos removal database" referred to in Bates no. R004649, and the extent to which and manner in which data may be retrieved from such "asbestos removal database." Sfis Appendix C. (iv) The existence, extent, and location of the database from which the "database report" referred to in Bates no. R005464 was produced, and the extent to which and manner in which data may be retrieved from such "database". Sfifi Appendix D. B. MEDICAL RECORDS AND DATABASES (v) Based on Matt Murphy's representation that the Worker's Compensation collection at the Winthrop Square repository has not been added to since September of 1991, and based on our understanding that it does not contain any documents dated after 1988, the existence, extent, and location of all post-1988 worker's compensation documents. (vi) The existence, extent and current location of X-rays and X-ray reports of employees, kept at Cambridge and in various hospitals. SfiS Bates nos. 755261, IS 133867, and Appendix B. (vii) The existence, extent and current location of medical records that were microfilmed for the NIOSH study. Sfifi Bates no. 15083152. (viii) The existence, contents and current location of the "vault" referred to on one of the Worker's Compensation file folders as containing "obsoleted litigation," vault no. 4 referred to another file folder, and any other such vaults numbered one through three and five, and/or the existence, extent, and current location ofall documents previously kept in such vaults. See Appendix F. (ix) The existence, extent, and current location of the "stats sheets* and "employee exposure calculations" referred to on Bates nos. 40061148,04211770, and 4208093, and of the database FEF-94991 Exhibit A -- P*a *1* from which the "Employee Exposure Calculations]" at Bates nos. 04206844-04206859 were printed out, and the significance of the various columns on those pages provided in Appendix <3. (x) The existenCBTCxtem, and location of the "McGill study computerized employee history file" referred to in Bates no. 0620980, the extent to which and manner in which data may be retrieved from such "computerized . . . file," as evident from Bates no. 0620982, and the significance of each column of data provided in Bates nos. 0620982-83. SfiS Appendix H. (xi) The existence, extent and location of the database from which the "priot-out" of "prior worker's compensation claims ..." referred to on Bates No. 04212768 was to be made. See Appendix M. (xii) "Studies" referred to as having been conducted by Grace on Bates Nos. 04206859.10 that purported to uncover 55 cases of "pulmonary disorder!" that were not reported to Grace's insurers, and the results of all such studies. Sfifi Appendix N. (xiii) The "exposure index" refereed to on the October 1, 1982 memorandum from Earl Loviclc to Jack Wolter, and the extent to which such "index" data appears to differ from the "employee exposure calculations" referred to in paragraph (ix), supra. fi Appendix O. (xiv) The" recently completed work history/fiber exposure estimate study" referred to on Bates No. 760073 and the extent to which such "estimate study" data appears to differ from the "employee exposure calculations" referred to in paragraph (ix), supra. See Appendix P. C. MISCELLANEOUS ASBESTOS-RELATED DOCUMENTS AND DATABASES (xv) The existence, extent, and location of J. Peter Grace Asbestos Piles not currently being produced at the repository, and whether such files/documents are being withheld on grounds of privilege, and if so, the identification of those entries on Grace's privilege document index that pertain to such files/documents. (xvi) The existence, extent, and location of the "databank" cm the "asbestos problem" that was created to "improve the availability of information" as set forth in Bates no. 0626597, and the extent to which and manner in which data may be retrieved from such "databank." See Appendix I. 6cvu> The existence, flfld lOCOtiOD Of lltt "EmcrgOlC) and EflYiTO!U&ttti Response Logs" referred to in Bates no. 10009653. Sfifi Appendix J. (xviii) The existence, extent, and location of minutes ofthe meetings of the "Audit Committee," "Committee on Corporate Responsibility," and "the Board" where the "asbestos problem" was discussed, as set forth in Bates no. 15140452. Sfifi Appendix K. (xix) The current and former contents of Grace's libraries or documents or databases reflecting PEP-94991 Exhibit A -- Pf* *2- the current and former holdings of any of Grace's libraries, to the extent such holdings pertain to asbestos and/or asbestos-related matters. & Appendix L. (xx) The existence, extent and current location of TEVCO documents from the "archives'* or "perlite pit," as set forth in Bates no. 15109344. (xxi) The existence, extent and current location of any documents pertaining to the Safe Buildings Alliance ("SBA"), and date on which the last SBA-rdated documents were added to the Winthrop Square Repository. (xxii) The extent to which documents to which Grace has claimed privilege have been reviewed by any court and determined to be n^n-privileged in any asbestos-related case other than Culleq Center. D. MICROFILMED DOCUMENTS (xxiii) The existence, extent and current location of microfilmed set of Grace documents that has been produced in its entirety in other cases, including the Baltimore County and State of Maryland litigation, and any additions thereto. (xxiv) The existence, extent and current location of the microfilmed set of medical records created for the NIOSH study. $SC Bates no. 15083152. E. OTHER (xxv) The existence, extent, and location of any and all other asbestos-related documents, databases, or other record collections that were not produced to plaintiff at Winthrop Square. FEF-94991 Exhibit A -- Page -3- EXHIBIT B TO NOTICE OF DEPOSITION SUBPOENA DUCES TECUM A. ABATEMENT DOCUMENTS AND DATABASES (i) All abatement documents pertaining to the abatement of asbestos-containing materials for any facility currently or previously owned or leased by Grace or any subsidiary located within or outside the continental United States dated after December 31, 1992. (Li) All abatement documents pertaining to the abatement of asbestos-containing materials for any facility currently or previously owned or leased by Grace or any subsidiary located within or outside the continental United States, other than those already produced within the 23 abatement binders at Winthrop Square, including but not limited to all facilities listed in Appendices A and B-l.B-2, and B-3. (iii) All documents pertaining to the "asbestos removal database" referred to in Bates no. R004649. SfiB Appendix C. (iv) All documents pertaining to the "database report" referred to in Bates no. R005464. See Appendix D. B. MEDICAL RECORDS AND DATABASES (v) All post-1988 worker's compensation documents. (vi) All X-rays and X-ray reports of employees, kept at Cambridge and in various hospitals. See Bates nos. 755261, 15133867, and Appendix E. (vii) All medical records that were microfilmed for the NIOSH study, Sflfi Bates no. 15083152. (viii) All asbestos-related documents that were previously maintained or are maintained any "vaults* referred to on any of the Worker's Compensation file folders and any inventories or indices of any such documents kept or previously kept in such vaults. SfiC Appendix P. (ix) All "stats sheets" and "employee exposure calculations" referred to on Bates nos. 40061148, 04211770, and 4208093, and the database from which the "Employee Exposure Calculations]" at Bates nos. 04206844-04206859 were printed out. Sfifi Appendix G. (x) The "McGill study computerized employee history file" referred to in Bates no. 0620980. gge Appendix H. FEF-94991-EDH Exhibit B -- P*|* -1- (xi) Ml "print-outs' of prior worker's compensation claims ..." including those referred to on Bates no. 04212768. See Appendix M. (xii) All documents pertaining to Utc "studies" referred to as having been conducted by Grace on Bates No. 04206859.10 that purported to uncover 55 cases of "pulmonary disorders- that were not reported to Grace's insurers. SfiS Appendix N. (xiii) All "exposure indices," including the "exposure" index referred to on the October l, 1982 memorandum from Earl Lovicle to lack Wolter. $ Appendix O. (xiv) All documents pertaining to the "recently completed work history/fiber exposure estimate study" referred to on Bates no. 760073. Appendix V. C. MISCELLANEOUS ASBESTOS-RELATED DOCUMENTS AND DATABASES (xv) All J. Peter Grace Asbestos Files not currently being produced at the repository. (xvi) The "databank" on the "asbestos problem* that was created to "improve the availability of information" as set forth in Bates no. 0626597. SfiC Appendix I. (xvii) The "Emergency and Environmental Response Logs" referred to in Bates no. 10009653. See Appendix I. (xviii) All minutes of the meetings of the "Audit Committee," "Committee on Corporate Responsibility," and "the Board" where the 'asbestos problem* was discussed, as set forth in Bates no. 15140452. Sfifi Appendix K. (xix) All documents or databases reflecting the current and former holdings of any of Grace's libraries, to the extent such holdings pertain to asbestos and/or asbestos-related matters. SflC Appendix L. (xx) All TEVCO documents previously or currently maintained in the "archives" or "perlite pit," as set forth in Bates no. 15109344. (xxi) All documents pertaining to the Safe Buildings Alliance (*$BA") that were not produced at Winthrop Square. (xxii) All documents to which Grace has claimed privilege that have been reviewed by any court and determined to be non-privileged in any asbestos-related case other than Cullen Center. FEF-04991 -BDH Exhibit B -- Pago -2- D. MICROFILMED DOCUMENTS (xxiii) The microfilmed set of Grace documents that has been produced in its entirety in other cases, including the Baltimore County and State of Maryland litigation, and any additions thereto. (xx) The microfilmed set of medical records created for the N10SH Study. 15083152. BitfiS IK). E. OTHER (xxiv) All other asbestos-related documents, databases, or other record collections that were not produced to plaintiff at Winthrop Square. V i FEP-94991-EDH Exhibit B - Paga -3- NT 8Y: MAYCHDAYCALOWELLKtS ION I 1 0- 6-94 ; 22:47 : HAY OAY CALD KEET omzaa&iu;* i FACSIMILE COVER SHEET Mayor, Day, Caldwell & Keeton, l.l.p. ~~~ 700 LOUISIANA. SUITE 1900 HOUSTON. TEXAS 77002-2778 (713) 225-7000 TVLSCOrY (7U) 2JJ-7M7 TTLXX 3UII3 CONFIDENTIALITY NOTICE THIS MESSAGE AND ALL DOCUMENTS TRANSMITTED HEREWITH ASX STRICTLY CONFIDENTIAL AND ARE INTENDED ONLY TOR THE USE OF THE SPECIFIC INDIVIDUAL OR ENTITY LISTED BELOW. THEY MAY CONTAIN INFORMATION THAT IS ATTORNEY-WORK PRODUCT. THAT IS SUBJECT TO THE ATTORNEY-CLIENT PRIVILEGE, OR THAT CONSTITUTES TRADE SECRETS OR IS OTHERWISE PROPRIETARY. Dimcrainarion, distribution or copying of this communication to anyone other than the specific individual or entity listed below (or the peraon responsible for delivering this communication to the specific individual or entity listed below) is STRICTLY PROHIBITED. If you have received this communication in error, please notify the sender immediately by telephone (collect), and return the original communication to us ar the above address via (he U.S. Postal Service. TbaolC you. 1Q/Q6/94 Gary C. Miller Total number of paces, including cover letter: 12 Item I 2 93 4 5 Tot H.Loe Godfrey,Tracy Christopher, Michael Lee Matthew T. Murphy Richard A. Senftlebec fJoRSSRl 1 V Tima a. m. p.a. p*tn. ta p.m. a. a. p.m. a.m. p.a. a-m. 1 On0196.01/IOV406/72l F cNT BY:MAY0RDAYCALDWELLKEETCN;10- 6-94 : 22:40 MAT HAT UHUU rvcci- CGamy Milu-k. MATXEH Mayor. Day. Caldwell S Keeton, llp. 700 LOUISIANA. SUITE 1900 HOUSTON. TEXAS 77002-2778 (7133 225-7000 TELECOPT (713) 225-7047 TELEX 342SU October 6, 1994 By Messenger Ms. Katherine Tyra Harris County District Cleric 301 Fannin Houston, TX 77002 Re: No. 93-61850; Block 145, Ltd., a Texas Limited Partnership, AV America Grundbesltzver-wahungsgelsellschqft MBS, a German entity, Louisiana Walker, Ltd., a Texas Partnership, Tower Ltd., a Texas Limited Partnership, Post Oak Tower, Ltd., a Texas Limited Partnrship, and Hines Ranger Associates Limited, a Texas Limited Partnership v. W. R. Grace A Co.-Conn, and Vermlculite Products, lnc. \ in the 164th Judicial District Court of Harris County, Texas Dear Ms. Tyra: Enclosed for filing among the papers of the above-referenced case is W. R. Grace & Co.Conn.'s Objections to Plaintiffs' Notice of Oral Deposition and Subpoena Duces Tecum of Corporate Representadve(s). By copy of this letter, Plaintiffs' counsel are being provided a copy of the enclosed. Please file-stamp the enclosed copy and return to the messenger filing same. Thank you for your assistance in this matter. Very truly you; Enclosure cc: H. Lee Godfrey, Tracy K. Christopher Michael A. Lee Susman Godfrey, L.L.P. 5100 First Interstate Bank Plaza Houston, Texas 77002 0110*75.01 100406/1135 iENT BY:MAYOHOAYCALQWELLKEETON:1Q- 6-94 i 22-40 MAY OAY CALD KEEP NO. 93-61850 BLOCK 145, LTD. a Texas Limited Partnership, AV AMERICA GRUNDBESITZVERWALTUNGSGESELLSCHAFT MBH. A German entity, LOUISIANA WALKER, LTD. a Texas Partnership, TOWER LTD., a Texas Limited Partnership, POST OAK TOWER, LTD., a Texas Limited Partnership, and HINES RANGER ASSOCIATES LIMITED, a Texas Limited Partnership, Plaintiffs, v. W.R. GRACE & CO.-CONN., and VERMICULITE PRODUCTS, INC., Defendants. 9 9 9 9 9 9 9 $ 9 9 9 9 9 9 9 9 9 9 IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS 164th JUDICIAL DISTRICT W. R. GRACE & CCLrCONN.'S OBJECTIONS TO PLAIN] NOTICE OF ORAL DEPOSITION AND SUBPOENA DUCES CORPORATE REPRESENTATIVES OF TO: Plaintiffs Block 145,. Ltd., AV America Grundbesitzverwaltungsgesellschaft Mbh, Louisiana Walker, lid., Tower, Ltd., Post Oak Tower, Ltd., and Hines Ranger Associates Limited, by and through their attorneys of record, H. Lee Godfrey, Tracy K. Christopher, Michael A. Lee, SUSMAN GODFREY, L.L.P., 5100 First Interstate Bank Plaza, Houston, Texas 77002. On October 3, 1994, Plaintiffs filed in this case a Notice of Oral Deposition and Subpoena Duces Tecum of Corporate Representative^) directed to W. R. Grace St Co.-Conn. SENT BY MAY0RDAYCALDW6LLKEET0N; 1 0- 5-94 22 49 : MAY DAY CALD KEE! 0 I 74^888IU'8 4 ("Grace"). The Subpoena Duces Tecum, Exhibit B to the Notice, requests production of twenty- five (25) categories of documents. 2. GENERAL OBJECTIONS (a) Grace objocts to each of the categories of documents requested by Plaintiffs to the extent they request privileged information, including, without limitation, documents protected by the attorney-client, work product, trade secret, or party communication privileges, and to the extent they invade Grace's state and federal constitutional rights, including, without limitation, Grace's rights under the First and Fourteenth Amendments to the United States Constitution. Grace's failure to reiterate these objections separately with respect to each individual category of the request is not a waiver of these objections with respect to any document or category of documents. (b) Grace objects to each of the categories of documents requested by Plaintiffs to the extent they request documents that have previously been produced to Plaintiffs at Grace's Winthrop Square document repository or otherwise. (c) Grace objects to each of the categories of documents requested by Plaintiffs to the extent they are inconsistent with the negotiations and agreements between counsel for Grace and for Plaintiffs with respect to Plaintiffs' Subpoena Duces Tecum. 3. SPECIFIC OBrecnoHS By category, Grace objects to the document subpoena on the following specific grounds. 2 SENT 8Y:MAYORDAYCALDWELLKEET0N''0- S-94 : 22:49 MAY DAY CALU Kbtl '^ o i riioaoiu. o A. ABATEMENT DOCUMENTS AND DATABASES (i) All abatement documents pertaining to the abatement of asbestos-containing materials for any facility currently or previously owned or leased by Grace or any subsidiary located within or outside the continental United States dated after December 31, 1992. (ii) All abatement documents pertaining to the abatement of asbestos-containing materials for any facility currently or previously owned or leased by Grace or any subsidiary located within or outside the continental United States, other than those already produced within the 23 abatement binders at Winthrop Square, including but not limited to all facilities listed in Appendices A and B-l, B-2, and B-3. Objection: Grace objects to categories (i) and (ii) because they are unreasonably broad in that they request abatement documents for facilities outside the United States, where customs, practices, laws and regulations do not correspond to those in the United States. Such a request is not reasonably calculated to lead to the discovery of admissible evidence and compliance would result in undue burden, unnecessary expense, harassment and annoyance. With respect to categories (i) and (ii), Grace has produced to Plaintiffs all responsive documents relating to asbestos abatement completed by December 31, 1993 for facilities in the United States and Puerto Rico, with the exception of documents protected from discovery by the attorney-client privilege, work product privilege or other applicable privilege. As a standard practice, Grace, on an annual basis, gathers from its involved facilities throughout the country documents created during the prior year and deposits them in Winthrop Square. To require Grace to produce post-1993 documents at this time would result in undue burden, unnecessary expense, harassment and annoyance. Nevertheless, and without waiving its objection, Grace has offered to search for post-1993 documents, but believes that there are no post-1993 documents 3 SENT BY: MAYQRDAYCALUWfcLLKfct l UIN. i u- w-M MAY UAY LALU l^tt I Oi/4^uugju*# u relating to abatement of fireproofing materials. Grace has asked Plaintiffs whether it should undertake the document search. Grace is awaiting Plaintiffs' instructions. B. MEDICAL RECORDS AND DATABASES (v) AU post-1988 worker's compensation documents. Qblecuso: Grace objects to category (v) to the extent it seeks material protected from discovery by the attorney-client privilege, work product privilege, and party communications privilege and to the extent it seeks medical records protected from discovery by Texas Rule of Civil Procedure 166b(h), Texas Rule of Evidence 509, and the Americans With Disabilities Act, 42 U.S.C. 12112 (1994). Grace has produced all other material responsive to category (v) in Winthrop Square and in the offices of its counsel. (vi) All X-rays and X-ray reports of employees, kept at Cambridge and in various hospitals. See Bates nos. 755261, 15133867, and Appendix E. Objection: Grace objects to category (vi) because it seeks material protected from discovery by Texas Rule of Civil Procedure 166b(h), Texas Rule of Evidence 509, and the Americans With Disabilities Act, 42 U.S.C. $ 12112 (1994). (vil) All medical records that were microfilmed for the NIOSH study. Sss Bates no. 15083152. Obifioion: Grace does not know and has no way of telling what records were microfilmed for the NIOSH study. In addition, Grace objects to category (vii) because it seeks material protected 4 Otrtl OT WMI UrtUXl ^MLUWCLI_f\CC I vn 1 u_ v~3~ from discovery by Texas Rule of Civil Procedure 166b(h), Texas Rule of Evidence 509, and the Americans With Disabilities Act, 42 TJ.S.C. 12112 (1994). (viii) All asbestos-related documents that were previously maintained or are maintained any "vaults" referred to on any of the Worker's Compensation file folders and any inventories or indices of any such documents kept or previously kept in such vaults. S& Appendix F. Objection: Grace previously reviewed the documents maintained in the "vaults" referenced in category (viii) and delivered all non-privileged, relevant documents to Winchrop Square. Grace objects to any requirement that it review these materials again because such a requirement would result in undue burden and unnecessary expense. Nevertheless, in an effort to accommodate Plaintiffs' counsel, Grace is in the process of rereviewing the documents currently in the vault and upon completion of that review will provide to Plaintiffs any additional non-privileged documents responsive to this request. (xi) All 'print-outs* of prior worker's compensation claims ..." including those referred to on Bates no. 04212768. See Appendix M. Objection: Grace objects to category (xi) because it is vague, ambiguous and indefinite. The reference in Appendix M to "print-outs" is to a cryptic, handwritten, marginal note by an unknown author. Nonetheless, computer generated materials have been produced to Plaintiffs in response to category A(v) of this subpoena. Grace further objects because category (xi) is not limited to a relevant time period and is not limited to claims relating to asbestos, and therefore is not reasonably calculated to lead to the discovery of admissible evidence. Grace also objects to category (xi) to the extent it seeks material that is protected from discovery by the attorney-client privilege, work product privilege or party communications privilege. 5 SENT UY;MAYOKUAYCALUWfcLLKbtlUN;10- b-yA : Oi MAT UAT V/MLU fVCC l VI IUVI/VIV* V C. MISCELLANEOUS ASBESTOS-RELATED DOCUMENTS AND DATABASES (xv) All J. Peter Grice Asbestos Files not currently being produced at the repository. Objection: Grace objects to category (xv) to the extent it seeks material protected by the attomeydient privilege, work product privilege, and party communications privilege, and to the extent it invades Grace's state and federal constitutional rights, including its rights under the First and Fourteenth Amendments to the United States Constitution. Grace has produced all nonprivileged documents responsive to category (xv) at the offices of its counsel. (xvi) The "databank" on the "asbestos problem" that was created to "improve the availability of information" as set forth in Bates no. 0626597. &fifi Appendix I. Qtaj-wtion: Grace objects to category (xvi) because it seeks material protected from discovery by the work product privilege and party communications privilege. (xvii) The "Emergency and Environmental Response Logs" referred to in Bates no. 10009653. Seg Appendix J. Objection: Grace objects to category (xvii) to the extent it seeks documents containing non-asbestos related information because such information is not reasonably calculated to lead to the discovery of admissible evidence. In accordance with this objection and its agreement with Plaintiffs, Grace has produced "Emergency and Environmental Response Logs" from which non-asbestos related information was redacted. 6 SENT BY:MAVOROAYCALDWELLKthlUN: 10- tt-a* : 3 1 mr UH1 V'*LU 1 (xviii) All minutes of the meetings of the "Audit Committee," "Committee on Corporate Responsibility," and "the Board" where the "asbestos problem" was discussed, as set forth in Bates no. 15140452. Appendix K. Objection: Grace objects to category (xviii) because it seeks materials protected from discovery by the attorney-client privilege, work product privilege, party communications privilege, and accountant-client privilege. (xix) All documents or databases reflecting the current and former holdings of any of Grace's libraries, to the extent such holdings pertain to asbestos and/or asbestos-related matters. SfiS Appendix L. Objection: Grace objects to category (xix) because the request is burdensome and is not reasonably calculated to lead to the discovery of admissible evidence. Nonetheless, without waiving its objection, Grace will undertake to produce the requested information to the extent it is not privileged. (xxi) All documents pertaining to the Safe Buildings Alliance ("SBA") that were not produced at Winthrop Square. Objection: Grace objects to category (xxi) to the extent it seeks material protected from discovery by the attorney-client privilege and Invades Grace's state and federal constitutional rights, including its rights under the First and Fourteenth Amendments to the United States Constitution. Grace has produced all non-privileged documents responsive to category (xxi) to Plaintiffs in the offices of its counsel. 7 SENT BY' MAYOHUAYCAlUWtLLKfct I UN l IU_ 0~34 um 'jmuw v_l. 1 (xxii) All documents to which Grace has claimed privilege that have been reviewed by any court and determined to be non-privileged in any asbestos-related case other than Cullen Center. Objection: Grace objects to category (xxii) because it seeks material protected from discovery by applicable privileges as claimed by Defendants, including the attorney-client privilege, work product privilege, and party communications privilege. However, Grace is in the process of reviewing those documents and will provide Plaintiffs' counsel with any of those documents with respect to which Grace determines to no longer assert a privilege. D. MICROFILMED DOCUMENTS (xxiii) The microfilmed set of Grace documents that has been produced in its entirety in other cases, including the Baltimore Countv and State of Maryland litigation, and any additions thereto. Objection; Grace has offered to produce the microfilm responsive to this category, subject to Grace's review for inadvertently produced privileged information, providing that Plaintiffs agree to pay the cost of duplicating the microfilm (estimated to be approximately $430.00). Grace is awaiting a response from Plaintiffs to that offer. E. OTHER (xxiv)[sic](xxv) All other asbestos-related documents, databases, or other record collections that were not produced to plaintiff at Winthrop Square. Objection: Grace objects to category (xxv) because it is vague, ambiguous, overly broad, not reasonably calculated to lead to the discovery of admissible evidence, and because compliance would result in undue burden, unnecessary expense, harassment and annoyance. From time to 8 SEN I dYMAYUHUAYUALUWtLLfttCI UN 1 u"" 0_3* ' a - Ji m/m vn i *'w time, additional documents come to the attention of Grace's counsel that may be responsive to various documents requests. Grace is currently in the process of reviewing documents, some of which may be responsive to this subpoena, for ultimate placement in Winthrop Square. To the extent that additional documents not previously furnished to Plaintiffs are identified as responsive and not protected from discovery, they will be placed in the Winthrop Square repository within a reasonable time, and Plaintiffs' counsel will be notified when and if that occurs. Grace further objects to category (xxv) because it seeks materials protected from discovery by the attorney-client privilege, work product privilege, party communications privilege, accountant-client privilege, and physician-patient privilege, and trade secret privilege, and because it would invade Grace's state and federal constitutional rights, including its rights under the First and Fourteenth Amendments to the United States Constitution. 9 OtN' UKUA T V, ALU*CLLftCC ' ur* ' l L L J J r*/"' Respectfully submitted, Mayor, Day, Caldwell & Keeton, l.lp. .J2,... a CjrhM*________ Dillon S. Ferguson State BarNd 06911700 Richard ^Caldwell State Bar No. 03631000 Gary C. Miller State Bar No. 14071900 700 Louisiana, Suite 1900 Houston, Texas 77002 713-225-7000 713-225-7047 (FAX) ATTORNEYS FOR DEFENDANTS W.R. GRACE A CO.-CONN and VERMICULITE PRODUCTS, INC. #*=4vVf9 CATS. QIL5EBVICJS This is to certify that a true and correct copy of the foregoing Defendant W. R. Grace A Co.-Conn.'s Objections to Plaintiffs' Notice of Oral Deposition and Subpoena Duces Tecum to Corporate Representative^) has been served upon H. Lee Godfrey, Tracy K. Christopher, and Michael A. Lee, Susman Godfrey L.L.P., 5100 First Interstate Bank Plaza, Houston, Texas 77002, counsel of record for Plaintiffs, by telecopy and United States Certified Mail, postage prepaid, return receipt requested, on this the 6th day of October, 1994. a 9dm Gary C. laller OISO3U.01 109406/2204 10 Robert A. Murphy VoL 2, December 7, 1994 Block 145, Ltd v. W.R. Grace 4 Co.-Conn |in MR. CASTEL: Of course, it's a (121 I 1151 A: I have no knowledge, ' vident proposition that Mr. Strand | (|g| Mg HUAHT: Well, that's what it ti7] h~. not iiji been authoring additional appeared to me; and obviously, I don't documents since h.s imi departure fniffl_^e any [l8) insidc knowledge of what the company. At least not 1151 Grace-re lated documents. (i6l BY MS. HU ART: (i7i Q: I thought that 1 had requested, in paging nsi through through Exhibits 19 and 18,1 intended to (19| request a copy the original was that that 1191 copy was made from. 1201 If it is a film, then we're making a 1211 request for it; and our request would be (22i encompassed by our previous re quest to see slides [231 and films and of what appeared to be a Xerox copy (201 videotapes that pertain to the 1241 asbes- of a film canister. I don't see it in this list, tos-containiong products. PH but it's a film canister called Ceilings and (22| Sounds, C-c-i-l-i-n-g-s? Pag* 229 [231 MR. CASTEL: Ceilings and -- 111 BY MS. HUART: (24| MS. HUART: -- and Sounds. Okay. Pag** 227 (2| Q: Turning again back to Exhibit No. 18. if 01 you could, within the slide presentation document Mt that we Hi MR. CASTEL: Okay. looked at before, on Bates numbered 12) MS. HUART: It appeared to be 01 16- page (5| 25202718, under the heading at millimeter old-fashioned type film the top of the page, Ml Slide 18 -- canister; and hj just for the record, al [7| A: Yes. though I don't see it in isi these par ticular exhibits that I had copied for the (61 deposition, for the record, I saw this in box three m of four in the supplemen tal production, and the (] pages where the film canister was copied on were ui Bates numbered 25203041 to 25203043. isi Q: -- there is a statement that is made by (9i whoever is giving the slide presen tation. quote, (ioi Zonolke makes avail able a complete job inspection 1111 report file. It details everything to look for in (i2i conducting an inspection on a given project. It ii provides a repository for all data and records on iuj 1Y MS. HUART: any fireproofing job, dose quotes. lit) Q: Mr. Murphy, docs that sound like one of (121 the films that was included in the boxes of tapes 1131 and photographs and slides were that produced back (U) in October? usi A: I have no idea. [i6| MS. HUART: My recollection is that [i7i that particular one may be different than what was itai converted to videotape. usi I don't have those notes available to (20) me at this moment, so let me just make a request on (211 the record that we have an opportunity to view that 1221 film, or if it is ultimately convened, that it may uni be relevant to the asbestos. (Ml MR. MILLER: Are you saying that Pags22S u$) Do you have any knowledge about these [161 job inspection report files? Ii7] A: No, as I said to you in response to one usi of your earlier questions, I've seen documents (19) which refer to densides and, you know, volumes or taoi weights. (ail I've certainly seen memoranda that 1221 report inspections conducted at job sites. I don't mi recall the forms that we discussed,and I don't -- mi so, that's my _answer. Pag* 230 (i) MS. HUART: I'm afraid that some of 12] youranswerwas blockedoutbysome movingpapers. 01 Could I please ask the court reporter just to read mi bade that response, HI there is a film as opposed to a Xerox page that (21 shows a copy of a film canister? 131 MS. HUART: Well, there's a copy of a Ml canister. Obviously, I don't have the originals |5] that the copy was made from, so Tm afraid (<) Mr. Murphy is the only person that can answer (7j whether there really is film inside that canister. Ml MR. MILLER: Or whether there's a 19) ister. From what we've heard, there's .ece (ioi of paper. Maybe we should ask him. dll BY MS. HUART: tsi (Answer read.) Ml MS. HUART: Thank you. m BY MS. HUART: tsi Q: Before I move on to -- strike that. (91 Mr. Murphy, could you, would you [ioi describe the documents that came out of the vault (in as the documents that were maintained by the Legal (121 Department exclusively, or is there some other [131 reason why documents would be in the vault? [141 A: I don't think I can answer the question (isi when you say `exclusively.* (121Q: Well, Mr. Murphy, do you have any (isi knowledge of whether there is a canister that has (ui been photocopied? 1161 They were certainly largely docu ments (i7i maintained by the Legal T T>m capable of commenting on every piece of paper (191 that was in there. 1201 MS. HUART: Before we move on to the (2ii matters outstanding from the subpoena, I think I 1221 need to clarify, this may be, this may be 1231 redundant. I'm not sure I made this request; but if 124] I hadn't, I had asked you when the last time was Pag* 231 (U that Giace searched the files of Gail Ericson for (21 asbestos-related docu ments; and I believe I had (31 made a request on the record that that search be mi done for; and that wc receive the nonprivileged 151 documents. [6i I know that she did represent Grace. (7) But I'm not sure I made that request on the record iaj or aot. If I neglected to do so, as 1 had with the [9| other in dividuals,! do want to make sure that (ioi request is included as well. Ill] BY MS. HUART: (121Q: Mr. Murphy, would you turn, please, to (131 the notice of deposition, which is Exhibit No. 1. (U) MR. CASTEL: It's now in front of the (isi witness. (16) Q: Okay. And I think I probably need to ask (17) you also to have in front of you the Letter dated (is) September 23rd, from local counsel; and if you'll 119) bear with me a minute, I'll give you an exhibit 1201 number for that. It's Exhibit No. 14, I'm sorry, (21] Exhibit No. 15. (Si MR. CASTEL: Wc now have it in front isi of the witness as well. (24) MS. HUART: Okay Pag* 232 HI MR. CASTEL: Okay. (2) Q: With respect to Paragraph A 3 and 4, that (3) particular paragraph in the subpoena pertains to mi the asbestos removal database for the Organic I5i Chemicals Division. (61 Do you have any knowledge about that [7] particular database as it pertains to our request m for abatement docu ments? Ml MR. CASTEL: Well, I would just note (ioi for the record that Mr. Murphy has not been (ui designated and is not being produced with regard to tiz] those sub divisions of Paragraph A. (i3| Q: WeU, to the extent that you are the (14) custodian of records, ifyou have any knowledge usi about the -- do you hare any knowledge about the (Mi asbes tos removal, the asbestos removal database (i7) itself, to the extent that you are presumably the [isi person who gathers asbestos abatement documents or U9| is responsible for producing them to plaintiffs? _____ IHfM Da/> Tl') Block 145, Ltd v. W.R. Grace & Co.-Conn Robert A. Murphy VoL 2, December 7,1994 li A: I don't know of the existence of an mi asbestos removal database. I was involved in (221 discussions about whether it existed or not;and UlM-think Mr. Eschenbach is the better person to ask [i the question of. __________ Pag* 233 HI But the answer to your question to me 121 is, I have no knowledge of the exist ence of an 131 asbestos removal database. W Q: As within your duties as the cus todian of isi record and maintaining records for production to [6] plaintiffs, do you have input over records that are m destroyed? ll A: That's awfully broad. What -- isi Q: I'm sorry, let me ask this another way. Itoi In the September 23rd letter, at tin Paragraph B 7, plaintiffs were told that Grace has im no knowledge of the ex istence or whereabouts or H3| disposi tion of a computer tape or the docu ments [Ui that were microfilmed for the NIOSH inspection. tisi Can you confirm whether these (id documents, and I think that the appen dix that we ini attached to this sub poena clearly indicated that at nsi one time they existed, can you confirm that these U91 items were destroyed in your capacicy as custodian 1201 of records? (zi 1 MR. CASTEL: Object to the form of (2ai the question. 1231 A: I cannot confirm that such docu ments, if (24| they existed, were destroyed, no. Pag* 234 ID Q: Does Grace have a document destruction 121 policy? 13) A: With reference to asbestos litiga tion, 1 ) am aware of a letter that was sent out, 1 think (3) over the signature of Mr. Walsh, I'm not a hundred id percent sure of that, advising people not to m destroy any documents that had any thing to do with m the subject of asbes tos. 19) Q: How long has that policy been In effect? (101 A: That letter went out in the early 1980s. (in Q: This has been before your invol vement In ii2) litigation? (i3i A: I think so. Not by much, but I think (i4| so. [isi And in addition, there was a policy tisi in place in those days whereby, after a certain ii7i number of years, the records custodian at the (isi Construc tion Products Division would notify the U9i generator or originator of the docu ments that they (201 had been in storage for a certain number of years 1211 and sought guidance on what to do about them. (22) So there was a policy in place in mi general for documents, which was then, if you will, 1241 made more specific with respect to asbestos-related Pag* 235 (1) documents. (21Q: Once you were heading up Grace's asbestos ui litigation effort,were you ever consulted by (4i somebody from within the organization regarding 1$) destroying records? 161 MR. MILLER: Object to the form of (?) che question and also that it seems to seek ii attorney-client -- (91 A: Your premise is Ctuity. You at tribute (101 something to me that's not true. (ill Q: Which is? (121 A: In charge of Grace's asbestos litigation (131 effort. [ui Q: Well, to the extent that Casncr & Edwards tisi has responsibility for the custody and maintenance, (ii organiza tion and production of documents to 1171 plaintiffs in asbestos litigation, and you're the mi individual with overall charge of that effort, have 1191 you ever been consulted regarding the destruc tion 1201 of asbestos, the destruction of records pertaining uu to asbestos-re lated matters? (22) A: Yes. U3i Q: Have you authorized the destruc tion of (24i records pertaining to asbes tos-related matters? Pag* 236 111 A: I don't think I have the authority to ui authorize the destruction of any of Grace's oi records. Ml To the extent that there may have pi been records at this firmthat might have pertained M) to litigation or something like that, a particular m case or cases, you know, perhaps I possess such m authority. I'm not really sure. 191 But,you know, Iwant to be, I don't 1101 want to overstate my authority or responsibility (in here. (12) Q: If you can't confirm whether the computer (isi tape or documents per tabling to the NIOSH study imi were destroyed, do you knowwho could con firm nsi whether or not that occurred? (i<) A: Isn't someone else designated on that (i7i subject? nsi Q: Not on the subject of destruction. (i9i Somebody Is designated on the sub ject of (2oi existence, uu But in your capacity as records 1221 custodian, I thought it would be ap propriate to ask (231 you regarding the destruction issue. (24) MR. CASTEL: Well, I mean, don't Pag* 237 111 have to establish first whether the documents (21 exist? 1311 mean, there seem to me to be a (i number of possibilities: the documents never ui existed; the documents exist and exist today; or isi your suggestion that they, they may have been [7j destroyed, and which 1 haven't seen any basis for iei such a suggestion. (91A witness has been designated on the 1101 category which you have requested. Is that not the mi case? (121 MS. HUART: Well, I think the mi foundation for my question is in the document Bates imi numbered 15083152, which is one document at tached [isi to, attached to, 1 believe, it's the August 17 ui letter, if I'm not mis taken. 117] MR. CASTEL: Yes, but am I not mi correct that a witness has been desig nated on this ti9i subject? (201 MS. HUART: A witness has been (zt) designated on the existence, extent and current (221 location. 1231 And the response that we received 124] indicated chat Grace has no knowledge of the Pago 238 [ij existence, whereabouts or disposi tion of the [21 computer tape or docu ments. I3i MR. CASTEL: Well, I don't think the Ml deposition is the place for you and I to be (si arguing; but I have Exhibit A to your notice of mi deposition; and there is a category 7, the m existence, extent and current location of medical i*j records that were microfilmed for the NIOSH study, p) And I also have here a letter from the Mayor Day (to) firm to TYacy Christopher dated September 23; and (ii) it has Mr.Eschenbach designated for all of (121 subdivision B of the sub poena except subcategory 8,113] if I'm not mistaken. [Ml MS. HUART: That's correct. IMI MR. CASTEL: Yes. So I think you it6i have a witness who has been desig nated. and (i7i presumably you will be able to probe with the mi witness. (191 MS. HUART: Sol -- you're right, and (2oi I don't want to take up time with colloquy and 1211 argument between us. (2zi I do think the Issue of document mi destruction is an appropriate one to pur sue with no the records, with someone who is being produced as_________ _ Pag* 239 til the records custodian; and 1 under stand, if he (2j doesn't have any knowledge, then I can just move 01 on. (i MR. CASTEL: Yes. Well, I think (51 you've already established and I don't Robert A. Murphy oL 2, December 7,1994 Block 145, Ltd v. W.R. Grace & Co.-Conn taw any id problem with your csub (si A: I recall hearing what you describe (121 now are solely related to Paragraph .is chat, you know, m whether Mr. as |9| being told, and my knowledge is 9. Mu.,,rty is aware of the existence or iai just about that. Ii3i MR. MILLER: The objection is iui destruction of such documents. (ioi Q: Okay. And just so the record is directed to production of documents in [9| Let's establish that; and if he (l(jp4-eiear, mi Paragraph B 9 relates to the sut knows, he knows. If he doesn't know, sheets and 1121 employees'exposure cal- let's move on mi and ask the witness culations; and these U3I documents are who has been designated on 1121 this. reflected in Appendix G to the u<i sub poena. (i3l Do you know of the existence, ex tent (mi and current location of the. of such documents, 1151 Mr. Murphy? 1151 MR. CASTEL: And for further ud clarification of the records, W. R. Grace has (17) designated a witness on this sub- ud THE WITNESS: No, and I answered category; and that (iai witness is not (|7| Miss Huart earlier that 1 have no Robert A Murphy, the deponent. knowledge with <isi respect to the destruction of any such documents if [i9i they existed. 1201 MR. CASTEL: Okay. (19) MR. FERGUSON: Let me make a point (20| here, if I may. I2ii 1 want the record to reflect that the [23i first paragraph of the September 1211 MS. HUART: I understand that. 1122) 23rd tetter (Z3i indicates clearly the don't want to get into a semantic argu responses in the (24| September 23rd ment; but (Z3i there is a difference be letter are not exclusively and tween existence, extent and 1241 location and destruction. 1 mean, I see a big -- Page 242 response to <151 the subpoena. (isi The particular documents under B 9. ini we're not aware of any. So there wasn't any reason usi to object. There was nothing for us to produce. [191 It is explained, as Dillon told you, in the en tire 120) series of the correspondence between the parties. [2i| I don't know if there's anything [221 subsequent.There are certainly prior let ters, and (23) there are prior requests which don't track exactly (24] the sub poena; and I think his only point: You've Page 244 til got to read this all together and in context in (21 order to underthe position. And that's the point 13] he wanted to make clear on the record. in all-encompassing Grace's position. It's Ml This witness, I think, you've is) ex Pago 240 merely one (2i of a series ofresponses in hausted your questions on the subject 111 difference in those two issues. But, if he doesn't 121 have any knowledge, so there's really no point to [31 belabor it. 14) MR. CASTEL: I think it is semantics, l?'' *tuly do; and I think the witness just : :o i the extent that you even can breath a semantic (7| question in that he has no knowledge of tsi destruction; but the continuum of (3) discovery and the discovery process here, and the mi response of Grace is not contained sole ly within tsi the September 23rd letter. (6) MS. HUART: Weil, Mr. Ferguson, is (7i there a subsequent letter that elaborates on, on tsi what happened to the database that's referred to in [91B 9? of this (61 witness anyway, so maybe we ought to move on. (7) MS. HUART: As I said before, 1 think [8| it's appropriate to ask to study the records (91 regarding his knowledge of destruction. (10) MR. MILLER; You have.We're not ini arguing about chat, I don't believe. 1 don't want somebody saying, *1 (9) don't know of the documents being destroyed" as (ioi somehow being a confirmation that the documents iui ever existed. (121 Die witness just simply does not have (13) knowledge on that subject, SO he has testified. [ioi MR. FERGUSON: The database was not (u) even the subject of the original request. That was [) provided in your or Susroan Godfrey's August 17th 1131 letter to me, which was ftirther to my August 16th (Mi letter to you; and the truth of the matter is, as usi dearly indi cated, this is merely a ftirther no response to what was initially provided, Ii2) We pointed out there is a witness 1131 designated, but we've allowed you to ask those (Mi questions, and you've received the answers, usi MR. CASTEL: One second. [id THE WITNESS: The court reporter U7i wants to stop for one moment, please. (Mi BY MS. HUART: (i7i reprocessed and refinedthrough our (u) MS. HUART: Sure. Can we take a [i9i (i5l Q: With respect to Paragraph B 9 of l>n communications. five-minute break at this point. the ud subpoena duces tecum, we lave U91 So to look at the September 23rd m 120) THE WITNESS: Off the record for a been told, and within ini the contact of letter and say that dot is Grace's [2ii second. the September 23rd letter; that the ns) database cannot be located, and that there was a (191 computer, and it became response is [in inaccurate. Grace's response is contained in its (221 full response to the subpoena and its objec (22) (Discussion off the record.) [23] MS. HUART: Let's go on the record. obsolete; and, quote, when poi it was tions. 12311 just want the recordto reflect (241 by MS. HUART: shut down, its contents were eliminated or (2U discarded, close quote. (22] Were you involved in, in your (231 capacityas custodian of records, did you authorize (241 the destruction ofthe con tents of the computer. that [341 MS. HUART: Well, with respect to Page 243 (il Paragraph B 9 -- (21 MR. FERGUSON: We can -- Pag* 245 di Q: Mr. Murphy, let me just make sure the tsi record is clear, that, regarding these items that I 131 understand you have not been designated as the mi per son who is most knowledgeable, I have Page 241 Mi MS. HUART: Wait a second. Let me Ml asked you rsi questions just trying to Ul MR. CASTEL: I'm going to object to pi the form of the question, but go 'ad. . A: Subject to the objection, the answer is mi no. finish, finish what I'm going to say. (5i I don't see die objection,I don't 10 see that portion of the objection that per tains to [7i Paragraph B 9 of the sub poena. It's not correct m me if I'm wrong, but I don't think I see -- I see t9l probe your knowledge to regarding the, whether certain documents have been (7i destroyed; and I have limited those questions to ttj Paragraphs A 3,4, B 7, B 9 of of the subpoena m duces tecum, (ioi Can you just tell me that, with ill] 151Q: Do you have any knowledge paragraph B 5, B 6, B 7. B 8 and B 11 respect to those, with respect to those regarding the i<i destruction of the con referred to 1101 in the objection; but 1 items, have ti2j you taken any steps at all tents of the computer that |7i was shut don't believe the objection mi refers to to respond, you 1131 yourself, I mean, down? ParaaraDh B 9. And my questions right have you taken any steps to [Mi respond Paor 94(1 . P(w 74< SHEEHAN- ASSOC Vi 42S-0S00 Block 145, Ltd v. W.R. Grace & Co.-Conn Robert A. Murphy VoL 2, December 7,1994 to the subpoena duces tecum regarding ini Q: With respect to the subpoena those ii5l items? item B 9, iui excuse me, B 10, which is (is! A: Yes. (i7i Q: What have you done? ----- the McGill study [191 computerized employee history file, it's referred (201 to in Appendix H to the subpoena, to your del A: I've participated in conversations 1211 knowledge, has Grace produced all with U9i counsel and with, I believe, two the documents 1221 pertaining to this par former Grace 1201 employees, and one ticular database? current Grace employee, with tzn (231 A: 1 don't know. respect to some of these items. [22} Q: Who did you speak with regarding the (23) database for the Organic (241 MR. MILLER: What database? As Pag 248 Chemicals Division? That (24) would be | in you've used that term. itemsA3and4. (2) MS. HUART: Well, it's referred to in 131 Page 246 the Grace documents and specifically in m A: Yes, my recollection is, and I'm not (21 crystal clear on this, that that subject came up in 13) conversations with coun sel, and counsel being Texas mi counsel Bates No. 14) 0620980 as a computerized employee history file. (51 If you look at that Appendix H. you'll see that it ($1 actually is a printout of a computer run. and perhaps Mact Murphy. And I may m MR. MILLER: Okay. I'm sorry. have isi had a conversation with Mr. Bschenbach about it. I [61 am not a hundred percent sure of that. I think 1 (7) did. isi Q: Okay. Have you or anyone else checked (91 with the location in Nashua where it used to be hoi located? mi A: I did not. I believe others have made [U| such inquiries, mi Q: Okay. With respect to B 7, which is the (Mi NIOSH study, have you per sonally taken any steps to (isi respond to (81 BY MS. HUART: (91Q: The response that we received bom local (to) counsel is that Grace did not have control over the mi database. Do you know who does have control over (121 it? U3) A: No. (Mi Q: Do you know how Mr.Lovick was able to (i$i access this database as it's reflected inAppendix (to H to Exhibit 3? (17) MR. CASTEL: I'm going to object to the subpoena on that item? (isi the form ofthe question in its use of list A: I don't think so. the word iwi 'access.* (i7) Q: With respect to item B 9, which is the (isi computer, have you personally undertaken any steps ii9i to respond to the subpoena on this item? (2oi A: Yes. (2 Q: What did you do? (201 There is a document It doesn't (21) necessarily mean that he accessed something. (221 A: I can't followyour question.What (23) should I be looking at? (241Q: If you'll turn to Exhibit H for a moment. 1221 A: Again, I had conversations with counsel; (23) and in this instance, in addi Page 249 tion to perhaps (M| talking with local in and I'm going to do the same, as soon Texas counsel, 1 may also have as I find a it Okay. Pag* 247 (it talked with at leastone in-house coun sel; and I (2) spoke with Mr. Lovidc and Mr. Walter about whether t3j or not scat sheets and employee exposure mi cal culations existed. pi I don't recall talking with them, I t) don't recall talking with Mr. Walter, at least, [7] about any database, m Q: Do you know who the source is for the (91 information that we received from local counsel (101 regarding the concents of that computer being (in eliminated or discarded? (12) A: Do I? No. (131 Q: Do you know the source of that [14| information? (isi A: No, I don't know who local counsel's [isi source is of that informa tion, no. _________ (31 In the first paragraph ofdocument hi Bates numbered 0620980, dated Sep tember 17th, 1985, (ft Mr. McKaig, M-c, capital K-a-i-g.wrote to to MrWalsh that and this is to the fineparagraph, m "Bari Lovick returned from his trip, and I had him isi research this statement using the McGillstudy (91 computerized employee history file.' (ioi The foundation formyquestion is (lit that particular statement that Mr. Lovick was able (in to access the database even though -- well. 113] MR. CASTEL: Well, 1 don't want to (Mi argue with you,but I don't get to that question us) from that statement in the letter. [id He is looking at a file. File (i7)implies, particularly In 1985, batd copy of a (isi document, h doesn't mean going on line and. ni nnnrr. arcessine a database. rtrvr1 v a* a 1201 Ifyou have some information that 1211 that's the case, that's a different story; but I (22) don't get that from the docu ment you just quoted. (231 But why don't we get to questioning (24| of the witness and just put a question to him and______ ___ ______ Pag* 250 in see what he says. (2) Q: Well,Iaskcdmyqucstion:Whohas (3) control over it? And the response to that question (4) was that Mr. Murphy doesn't know. (5i And then I asked how it could be ($1 accessed by Earl Lovick who is a Grace employee; pi and that's when, that was, I believe, the question i] that is pending. 19) MR. CASTEL: Well, okay. I stand on (to) my objection to the form of the question; and it mi assumes all sorts of facts for which I don't think (121 there's any basis to assume; but if the witness has [iji anything to say on the subject,I'd be delighted to (Mi have him respond. U5l A: What I can say, because 1 know it, is (14) that Mr. Lovick worked with Dr. McDonald and others ii7) from Dr. McDonald's team and with Mr. Amandus and (isi people fromNIOSH in collecting and providing 119) information that they utilized in their work at [201 Libby. [2ij Q: With respect to Paragraph B 12, which is (22) a telegram from one of the insurance companies, and |Z3) B 14 -- Well, let me just take them one ata time. 124) With respectto Paragraph B 12ofthe Pag* 255 HI subpoena, did you participate in un dertaking to do (2) anything to respond to that particular paragraph of ui the subpoena? The telegramitself is listed in (4i appendix N to Exhibit 3. isi A: Yes, I'm looking at that now. to MR. CASTEL: And you're repre senting pi that this was a telegram? (a) MS. HUART: It was produced from w Grace's files, I believe -- iioi MR. CASTEL: No, no, I see the [in document, and I don't hare any quarrel with that. 112) I'm just asking if you're representing that It was iui a telegram, that's aO. (14) MS. HUART: Weil, H looks like a nst telegram. dO MR. CASTEL: Olay. (i7i MS. HUART: That's conjecture on my [isi part. 1191 THE WITNESS: What is the question (20)now, please? (211Q: Well, my question is. Did you do anything [221 to respond to this particular paragraph of the 123) subpoena? (24)Did you undertake to do any kind of 74.fi - Paw 7M lobert A. Murphy /oL 2, December 7,1994 Block 145, Ltd v. W.R. Grace & Co.-Conn Page 252 I3l What, if anything, did you do to (4| cause all of these (i visits were done i] . .ch or attempt to respond to this paragraph? ui I'm specifically just trying co find out if you ui talked to the peopl at the insurer's office or m undertook to do some kind of a search. 151 A: I don't recall doing anything igi specifically with respect to this para graph unless, (7i and I don't have all the information in front of tei me, unless it's encompassed by the, you know, the (91 reference to exposure index or indices; and in that ttoi regard, 1 did speak, as I said to you already, to tin Mr. Lovick and to Mr. Walter but I don't recall 1121 doing anything specifically with respect to (isi Paragraph 12. or B 12. U4| Q: With respect to Paragraph D 14, is that iui the one you were referring to. that you did speak ui to Mr. Lovick and respond to Paragraph C 20 regarding the TEVCO (5i documents. MR. CASTEL: T-E-V-CO, solid caps. I7i A: I participated in discussions about it tei with counsel. I don't recall doing anything else. (91Q: Was there a perlite pit at that (101 particular location? 1111 A: I'm recalling. I'm recalling. I did (i2) something else or caused to have it done. 113] I talked with one person who visited (14| that facility, and I had, either 1 or, at my (isi direction, one of my associates spoke with at least (iq one other person who made a visit to that site as tt7 pan of the sweep to see what, if anything, they (is) knew about any place called a perlite pit or the 119) archives. over several months in, as I (7) recall, the late spring, summer, early fall of ibi 1984. (9i Q: Well, to the extent that there might be 1101 additional later generated documents or even newly mi dis covered documents pertaining to the asbestos [121 litigation, does Grace have the authority to obtain 1131 further docu ments from TEVCO or Vermiculite |i4) Products, Inc.? U5i A: I don't know. (1 MS. HUART: Well, 1 guess, to the 1171 extent that it's possible, we would like to make a (is) request on the record that whatever additional ii9i asbestos-related documents that pertain to TEVCO ot (201 Vermiculite Products, Inc. be produced to us. (2il BY MS. HUART: Mr, Walter, with respect to the ini work history, fiber exposure estimate study? lit) A: No, I think I had reference to the M9i exposure index that's referred to in Paragraph B ti 13- im Q: Oh, okay. (22i Have you already told me what you did mi in response to Paragraph B 13? r A: I think so. 1 said I talked to Pago 253 UI Mr. Walter and Mr. Lovick as to their recollections in about such lists or in dices, or studies, whatever ui word one wants to use. 14| Q: Okay.And with respect to B14, did you is) undertake to do anything? [Sl A: You know, I think that it was probably a t?l more general conversa tion; and my, I can't recount is) it for you exactly -- not that I would anyway, pi because it's probably work product -- but I think no) my conversation with them was more general: You mi know, What do you remember about lists, in dices, (in with respect to exposures or wodc with mi Dr. McDonald? 120) Q: Mm-hnun. [211 A: And it was the proverbial dry hole. (221Q: When, do you have an ap proximate time 1231 frame for when the documents would have been taken 1241 from TEVCO during the sweep? Paga2SS Hi A: Best I can give you now is that was in [zi the summer of the sweep; and wasn't that 1984, as 113) recall? Sometime around then. (41 MR. CASTEL: For the reporter, ui perlite is p-e-r-l-it-e. (l Q: Have there been any subsequent return m visits to TEVCO to determine whether there are any m other docu ments? pi A: I don't, I don't know. (to) Q: So to your knowledge, was the sweep in iui 1984 the last time some body reviewed the Dallas tw location for asbestos-related documents? (isi A: That's my memory as I sit here. dl Q: Does Grace maintain documents -- strike tisi dial. . (22) Q; Do you know who would know whether Grace [231 has the authority to obtain such documents from (241 com panies who formerly manufactured Grace products? Paga 257 [il A: Presumably someone in house would know pi the answer to that. (3)Q: With respect to Paragraph B 11 of the (4) subpoena, did you participate in doing anything to (51 respond to that particular paragraph? And that, [<) for the record, is the one pertaining to printouts (7) of prior Workers Compensation claims that were (9) referred to in Appen dix M of Exhibit 3. 191 A: My recollection is that 1 par ticipated In no] conversations with coun sel about it. I don't (it] believe I did anything else. (121 And there was a dispute, I guess, as (131 to whether that meant there was a printout ot what ni in fact it did mean. US] MR CASTEL: I believe an objection (i6l has been asserted as to this item in the subpoena. U7) MR MILLER: Yes, that's correct. U41 It was that type of a conversation, (i6l DidGrace obtainasbestos-related [i7i (isi Q: The same question with respect tisi Q: Okay. Well, these, the insurance documents from the Houston office of to C18, U9) which I understand has also (il telegram paragraph and the one Venniculite pa) Products, Inc.7 been objected to. relating to work uti history, fiber ex [191 A: My recollection Is that that was (201 MR CASTEL: Bingo. posure, these are all, these were (is) all visited; 1201 and certainly if there were (2t) Q: And that particular paragraph of requests that were deemed too general any documents thatwere unresponsive, the (22) subpoena refers to the minutes to (i9) respond to; and I was just attempt they would have been collected and m of the meetings of 1231 various -- I'm ing to determine 1201 what was done in reviewed. sorry. order to try to respond to those. (23) But you know, I don't have an 4i (M) A: Again, I believe I participated in [2ii A: Well, I've told you as best I can recall <m what 1 did. '3| Q: Yes. Beyond providing the docit ems that (24i form the basis for the request, I don't know what Pag* 254 Independent memory now as to what, if anything, was Pag* 250 (1) obtained as a result of the visit [2] Q: Would the Venniculite Products search be pi done at approximately the Pag* 255 Ui conversations with counsel about it, and I do not tzi believe I did anything else. (31Q: Have you reviewed those minutes that are [4] referred to in that paragraph ui else we could do to try to be more same time frame as TEVCO? and Appendix K? specific, try to 121 determine what is (4| A: If itwas visited, it would have been 131 MR. CASTEL: Let me just note for the available. isi approximately the same time, be I (Si record a couple of points.__________ Dam 77 . Past- 2SX & SHEEHAN ASSOC (617) 423-0500 Block 145, Ltd v. W.R. Grace & Co.-Conn Robert A. Murphy VoL 2, December 7,1994 m Number one, this witness has not been t*i designated with regard to this subject area; number 19) two, this is a subject as to which Grace has^um as- nil is numbered 23, the second one is misnumbered 20. (isi But that's the the number I'm going by. I guess im whatever number we want to call it, the documents being produced to us, not and I include the six-box collection chat was (i9) previously produced, and then later the additional 1201 two boxes we serted an objection in its objections. 111| That having been noted, I don't know H2l why tins witness is now being asked about it; but 113] if you have any knowledge, go right ahead, i in A: I don't recall reading any minutes of any nsi audit committee or any com microfilm (i5i set of medical records created for the NIOSH [ici study. 117) MR. CASTEL: And what is the us] question? U9IQ: Okay, if you will look at the Ex hibit 11 1201 and turn to page 9 of the attachment to that 1211 letter? received in Houston, are we receiving (2ij only cases that are closed; or are we also (22) receiving documents pertaining to ongoing claims 1231 and claims that have been filed but not resolved? (24) A: fas I believe I told you on day one Of mittee on corporate u) responsibility. I 122] MR. CASTEL The ninth attachment Pag* 263 have a recollection of seeing [I7| board minutes. 1 don't recall reading any where (isi the, quote, asbestos problem, close quotes, was U9i discussed. (23i or -- 1241 MS. HUART: This Is page 9 of the Pag* 261 (11 this, I don't know what you were provided because [21 the documents that were sent to you in Texas did 3) not pass through this office. They went from (4> I2oi Q; With respect to Paragraph D 20, [11 attachment. The Bates number is Lexington to Boca Raton, to Houston. So you may uu want to refer to Exhibit 11, 15083161. I can't 31 answer the question. which is the 1221 August 17th letter from local counsel; and the (231 attachment to that letter might help you. (24| MR. FERGUSON: I'm sorry, where arc________________________ (2) MR. CASTEL: Got it. 13) Q: Okay. There was no objection lodged to [4i this particular paragraph, as far as I know,ofthe ($1 subpoena: and I'm trying to determine what, if (i anything, HI Q: With respect, can you answer the question (71 with respect to the six boxes ofWorkers m Compensation documents traditionally maintained at [9) the Wimhrop Square repository? Pag* 258 HI you? (2) MS. HUART: I'm asking, I'm moving on 131 to Paragraph D 20. you participated In to respond to that (7| particular paragraph. l] A: Are you finished? 191 Q: Yes. I4i MR. FERGUSON: D as in dog? I 151 MS. HUART: Correct. tsi MR. FERGUSON: Well, subpoena doesn't (7) have a category D 20. il MS. HUART: Excuse me, l`m sorry. (9) I'm sorry. It's a typo. (ioi A: I don't recall any participation by me (in with respect to that paragraph. [121Q: I take it then you don't have any [131 knowledge about what company records were (Hi microfilmed or subject ofcomputertransfer inyour (isi capacity as records custodian? (ioi Yes, it does. Yes, it does. The tui subpoena has a paragraph, or at least it does on my 1121 copy. HO A: For this morbidity and mortality study, (t7i that's correct, tiaj Q: Okay. And is it also true that, in uo) A: The question being. Arc those closed (U) claims or open claims? (iz) Q: Correct. Are they limited to closed |U) cases,or do they include open and ongoing claims? tui A: I believe those would be closed claims iijj because they were -- well, let me stop and say, you (i<) know, I don't kaow what necessarily open and closed U7| means. If It means, Is Grace paying on a claim, or [isi is the insurer paying on a claim at present? then 11191 can't answer the question as to whether it's open taoi or closed because I don't know the status of the tan payments, if any, with U3l MR. FERGUSON: Exhibit 1 has got a your (i9l capacity as records custodian, respect to each of those (221 cases. C [hi 20. The first enumeration under D is little Roman 115) numeral XXXII. (HI MR. CASTEL That's the way it is on you don't have any pot knowledge about the final computer tape that's an referred to on page 12? (23i But the latest document, as I recall. (24) that was at Wimhrop Square was 1988. So in, from 117) my copy. ns) MS. HUART: Yes, and then the next 119] one right after that Is 20. [201 MR. CASTEL: No, 1 have 24. Under D. (221 A: rmsorry.you'llhave to repeatthe (231 question because the court reporter didn't foliOW (34| it- ____________ _ Pag* 262 in Q: Okay. In your capacity as cus-' Pag* 264 m that, one might say that it's a closed claim as [21 opposed to a current claim. But I make the 31 qualification, and I have no idea what the status, m If any, is 121] MS. HUART: I'm sorry. I must be 1221 todian of in records, do you have any of payments on those claims. looking at an older version, (23i MR. FERGUSON: There's a typo in that |2<] O 20 on Exhibit B. Pag* 260 III MS. HUART: Yes. I2| MR. FERGUSON: That has reference to [3i microfilm set up, medical records for NIOSH. Hi MR. CASTEL: That's Exhibit B, 01 though. Id MR. FERGUSON: Yes. that's B. [7i MR. CASTEL: Right. knowledge about the final oi computer tape that was to be supplied to Grace ia (4i accordance with page 12 of that document? Wl A: No, I don't. Id Q: Okay. So in your capacity as cus todian (7i of records, you -- A: In any capacity, I don't know any thing pi about it. do) Q: Okay.You didn't participate in tin determining the existence of this com puter tape for uai the purposes of responding to the subpoena? (5) Q: Okay. (l MS. HUART: Well, to the extent that [7) those records might be limited to those cases and pi claims that are closed and resolved and not include (9) cases that have been filed or are ongoing, I want (ioi to make sure that our record request is broad tui enough to encom pass open, nonresotved claims as (12; well. (13) BY MS. HUART: [Hi Q: Do Grace lawyers keep the ex hibit (is) notebooks that are exchanged isi MS. HUART: Yes, I'm looking at [91 Ex hibit -- yes, I'm sorry, I'm looking at Exhibit (ioi B, Paragraph O, entitled (i3i A: As I said earlier, I have no recol lection (14) of any participation with respect to this [isi paragraph. when Grace goes to no trial in asbestos cases? U7i MR. CASTEL: Object to the form of Microfilm documents, page (ill 3 of the ul Q: With respect to the Workers (it) the question. I don't know what exhibit; and it's Paragraph, the first.crc rAltiAAflMttnA >i( ATC tfat you're talking (191 about._________ _____ Robert A. Murphy VoL 2, December 7, 1994 Block 145, Ltd v. W.R. Grace & Co.-Conn hoi o; Well, when Grace goes to trial in ar asbestos-related case and the plau.j/fs give Grace 1221 a copy of their exhibit, trial exhibits, which arc 123] generally kept in binders -- l don** know how most u<i people do it; that's how we do it -- my question Page 265 ill is; At the conclusion of that trial, does Grace tai maintain those plaintiff exhibit binders or (31 collections of plaintiffs exhibits used at trial [4i against Grace? (31 A: I can't answer what other law firms do | with the exhibits that are used against Grace in |7j cases that they are defending. So I guess I can't [] answer your question. isi Q: So Grace itself does not remain a Hoi repository of documents used against it at trial, un is that correct? I ui A: I'm not sure. (131Q; Well, is this one of these situations do that's similar to documents, docu ments reviewed in [i$i camera and deemed nonprivileged. where you'd have [isi to go around and talk to every single local counsel (i7i in order to answer the question? lii Would exhibit notebooks be treated he same way? Uui MR. MILLER: I'm not following you, (til Holly. (231 MS. HUART: Okay. outside counsel in litigation that might involve tl work product. Paga 267 Til I think he's already answered that he (2{ doesn't know, 131 If he has anything to add in his [4| capacity as records custodian, that's fine. 131Q: Have you answered the question, (S( Mr. Murphy? (7| A: Why don't you ask me the ques tion again, isi so 1 can be sure I've answered whatever question it i is you're putting in front of me. [ioi Q: All I'm trying to find out is whether, in mi your capacity as records custodian, there is a (12| stash of exhibits that plaintiffs have used, [i3i plaintiffs' exhibits, used in trial against Grace itq in previous cases. [isi A: That's very difficult to answer. dl You say in my capacity as records (17| custodian. I mean, you know, I have, and I'll try (i*l to answer the question as you phrase it, in my |i9) capacity, whatever it be, records custodian or (201 denoted to be responsible for the records, such (2i| exhibits don't come into ourpossession; and in 1221 that capacity, I don't believe I have any (231 knowledge, that I've ac quired any knowledge with (241 respect to plaintiffs' exhibits used against Grace Pago 269 IK answer a question phrased in that fashion. Maybe (21 Mr. Murphy will be different. [31 A: I could not answer as to any par ticular (4) document. If you were to say to me: I saw such isi and such a docu ment two years ago; and I went back () last month, and it's not there now. why not? I (71 don't believe I could answer that question. mi The general answer would be it got (9) misfiled, it came back to us from the copy service 1101 in a place different from where it was sent to the [Uicopyscrvice, a plaintiffattorney stole it, tui somebody dropped it on the floor when they were H3) making a copy of it and didn't pick it up -- human tui error, usi Q: With respect to Grace's com puterized [16] search capability, without telling me what it is, [i7i what it involves, can you tell me whether it allows (is) for full text retrieval or -- let me just leave the [i9i question there -- can you tell me whether it allows [201 for full text retrieval? (21) MR. CASTEL: Well, I'm going to [221 object and advise the witness that he need not and (231 should not disclose any information concerning (24) workproduct means which Grace either has or, to Paga 270 [231 MR. MILLER: I'm not sure which (24| question you're asking him he would have to go to Pag* 266 dl local counsel to find out about, but 1 don't think (2j it's the same as privileged documents. 131 I think we are getting out of die [41 area that Mr. Murphy is designated for and into 01 what may be work product, if you're talking about iq anything other than the documents in his custody at m Winthrop Square, M MS. HUART: Well, as the records p) custodian for Grace, I'm trying to deter mine -- (10) MR. MILLER: Record custodian for nil Grace, that's not what he is. He's designated in cut specific categories; and that's not one of them, I iui don't think iui MS. HUART: Well, as the records [tsi custodian for Grace In producing docu ments to (isi plaintiffs in asbestos litiga tion,I'm trying to [i7| determine ifhe has \y knowledge regarding (iaj plaintiffs' jehibits used against Grace in trial. H9| MR. MILLER: Ail I'm saying is I rzoi think he should answer in his capacity as custodian [21] for whichever portions of the records he is the (221 custodian for and not in his capacity as sometimes (231 Pag* 266 (1) in litigation. (2) I do have knowledge in my capacity as (31 national counsel forpersonal injury cases or as a hi lawyer who's repre sented W. R. Grace in both ts personal injury and property cases. tl Q: Would your response be the same if I pi asked you the question as to ex hibit lists and not m the specific docu ments themselves? PI A: Yes. ID the contrary, does not have in defend ing In this (2) litigation. 131 Whether Grace has or docs not have [4] capabilities of the sort that you described is work (5) product and, as I understand it, not a valid (6) subject of inquiry; and I would ask for guidance m from Mr. Miller as well on that subject. M MR. MILLEH: I agree completely; and (91 I'd just like to point out also, whether it's an (ioi objection to the form or not, that your question is tm inherently con tradictory. (ioi Q: With respect to, and 1 know you (12) You started off by saying you didn't coukl un answer this particular ques (13) want to ask about the work-product tion, because this un pertains exclusive capability, and (i4j that's exactly what ly to the documents at Winthrop tui you do; so I join In (isi Mr. Castel's objec Square -- let me just restate it. tion and instruct the witness ui that he [141 If l go to die Winthrop Square usi repository and look through a box, find a document, (iq tag it for copying, and ultimately obtain that (i7( document, and a year lateror two years latergo (tq back to the repository and look in that same box, (i9) and that document isn't there, should not answer in a way that will reveal (itj work product. (tq MS. HUART: Well, I didn't say, I U9) didn't say it quite that way. What I said was he 120] can answer the question without telling me about (2ij your com puterized search capability. can you account for 1201 how that hap [22) All I was trying to determine was (231 pens in your capacity as record (2i) cus whether it was, whether it was or- todian for the Winthrop Square collec ganized by search B4| field or full text. tion? Pag* 271 (22) MR. CASTEL: I'm going to object to (231 the form of that question. [i) MR. MILLER: Well, I think, I [21 con tinue to think that's inherently con (2) I don't see how any witness could I tradictory_____________________ _____ Pave 26a - Pave 271 \z & SHEEHAN ASSOC. (617) 423-0500 1 Block 145, Ltd v. W.R. Grace & Co.-Conn Robert A. Murphy VoL 2, December 7, 1994 131 It seems to me you're doing exactly reviewed sequentially, consecutively, historical contents of 191 the Grace (<l what you suggested you didn't want one day after |7| the other; and they may library? to do, or what (51 you're telling him he not, therefore, have been (8| placed in Iioi A: I guess I don't understand your doesn't need to do. So I (6| don't think boxes that are near each other. im question. it's a proper question, * [9|So I.youknow.Ican'tansweryouruoi I 1121 Q: Okay. As records custodian, what (7| MR. CASTEL: And whether Grace question. Or another way of answering [Ui documents are there that are avail has no (si computers or a lot of com It, as I ini recall it, is not necessarily able that (Mi enumerate what was in the puters or a computer [91 database or has would they be found [121 together. Grace library over the usi course of the refrained from expending the money noi [13) Q: Did you participate in responding time that asbestos-containing (i6| to have a computer database or has ex to our [ui request for these Eschenbach materials were made? pended the mi money to have a com documents as embodied usi in this (i7) A: I don't recall seeing anything in puter database but limited the 1121 redacted memorandum? capabilities of that database or any of that (i)i strikes me as attorney work product, which is not (ui fair game for inquiry in this proceeding. [i5l BY MS. HUART: (i6| Q: Mr. Murphy, could you turo, please, to in) Exhibit 7. [161 MR. CASTEL: We're at Exhibit 7- [191 MS. HUART: Okay. (20i Q: I will represent to you that this is the (2ii memorandum that 1 handed to Mr. Matt Murphy of your 1221 office during the course of our October '93 im production. And it was also later provided to [24| Mr. Ferguson, to local counsel.__________________ __________ [16) MR. MILLER: What request' You're ini referring to the, an exhibit that you handed usi someone as opposed to a formal discovery request' 119] MS. HUART: Well, this was a [201 fol low-up to -- we were at the repository in 121) conjunction with the formal dis covery request. (22) I was given access to the inventory (2}| index. 1 attempted to use it to locate documents [241 of interest to us. I was unable to do so and Pag* 274 (ij prepared a memorandum which in redacted format I (21 handed to Matt Murphy. US] Q: Did -- (19) A: Excuse me. (Continuing) -- seeing (20| anything at Winthrop Square which, by way of a list (211 or an index that indicates what would have been in 1221 any library at any particular time. [231 Q: Did you participate in any way in (24) responding to Paragraph C 19 of the subpoena? Pag* 276 ill A: I believe I was involved in discus sions (2) with counsel about that subject. (31 Q: Wei1, we have been offered some 14) additional lists. I'm just trying to deter mine (51 what those lists contain. It sounds like you don't |6| know what Page 272 13) All I'm trying to find out is, did |4> Mr. those lists would contain. HI In this memorandum, I have listed [21 files from reviewing the 25,000-page in ventory that 13) I was unable to locate or at least could not track to into the boxes in the repository; and I provided [51 this memorandum to Mr. Matt Murphy, as king him. If (6) I identified the Eschenbach files that I'm pi interested inseeing, can you puil them from your (s) end? 01 And he said: Well, I'll have to get tio] back to you on that; and he never -- well, we uu ultimately did get a response. ini My question is: Aren't these (ui * chenbach documents maintained by Grace in a way uo that's analogous to the way they're listed in the tis) 25,000page Inventory? no MR. CASTEL: I would just sayto the Ii7) witness. If he can answer that ques tion without 1is) revealing attorneywork Robert Murphy play any role in respond ing to my [si request of, Can we gee possession of the documents <6i the way that they are listed here from some other [7) source, other than what, the way that they are (si maintained in the repository? (91 MR. CASTEL: I'll object to the form tio) ofthe question;but ifyou can answer it, go mi ahead. (i2) A: I'm pausing not because I don't know the (131 answer, but because I'm turning around in my head (i4| whether, if I had participated in it, whether that (isi wouldn't have been a privileged communication til between me and Mr. Murphy. U7) However, the answer is I don't recall Uai and don't believe that I participated in responding 1191 to your request, tao) MS. HUART: Off the record, (7i MS. HUART: To the extent that [i they're responsive to our subpoena and they further (9) elucidate what's in the library of Grace and what [101 has been there, I'd like to make a request on the mi record that we receive those lists. 112) THE WITNESS: Ido -- (13) MR. MILLER: The list. [i4i MS. HUART: This is the list referred usi to in Paragraph 1 of the letter dated October 31,116) 1994. U7] MR. MILLER: Okay. Thank you. It's usi notamongthe exhibits to the deposi tion. I just U9l wanted to have a refer ence. That's fine. [20| MS. HUART; Since we were going pi] through the subpoena, I just wanted to make sure it (221 was included in what we discussed. (231 BY MS. HUART: product, he may do so. tail (Discussion off the record.) (24) Q: Mr. Murphy, does Grace have any (19) If answering that question would m (22) MS. HUART: Back on the record. logs of disclose trial preparation materials, at torney work (211 product, material prepared In contemplation of (22) litiga tion, that, as I have been instructed by (23) Tens counsel, he would not need to respond to that 125) question. Pag* 273 (11 A: I think I can say this without refer ence (2) to work product: That I don't know the answer to rai your question, because it would depend on when the (1 documents denoted as they are here were reviewed by [$i the paralegals. (23) BY MS. HUART: (24) Q: Mr.Murphy, we requested in Para graph^ Pag* 275 HI 19 of the subpoena lists of library holdings of (21 Grace, and we did receive a copy of some, what's 01 referred to as a compilation of Grace library (4i hold ings. Tncrc is an offer by local counsel for a [si copy of the lists themselves. 16) What is there beyond the library m holdings that would disclose to us the Pag* 277 ID documents that were destroyed in accordance with (21 its document destruction policy? 13) A: I don't know of any logs. (4) Q: Are there any -- I'm sorry, did you ($1 finish your response? 16) A: Yes, (7) Q: Are there any records that Grace has (i maintained that in any way per tain to the (9) destruction of Grace records? They may or may not have brn ,a I rnntrnt* of mi the library or at least the Iioi A: I believe Mr. -- ..................../ AM~----------------------- Pane 272 - Pace 277 Robert A. Murphy 'oL 2, December 7, 1994 til Q: In accordance with its document 121 ruction policy or otherwise? i3i i'm aware that Mr. Derico. whose tame I (Mi mentioned earlier as the cu$odian, if that's the usi right term, of the" ecords in, that were in our, at ii6i the lonstruction Products Division in Cambridge, ii7| mainuined at one time, ind perhaps still does, usi index cards which reflect what's there and, at one ;i9i time, and I assume he still does, made some son of im record if a document or documents were destroyed on 1211 those cards. (221 MS. HUART: I'd like to make a 123) request on the record for any docu ments pertaining 124) to the destruction of records; and I include in my employed by, any of tha pantos to tho action in which thl* depositiontotaken, and lurthar that I am not ralativ* or employee of any attorney 0* counsel employed by tha panlat hereto or financially intaraatad in the action. (n Wines* whereof, I have hereunto eat my hand end tool this day o( Odcombor, IBM. Saron Zahar, Notary Public My Commission expiree: February 2. 2001 FRITZ A SHEEHAN ASSOCIATES INC Page 278 ill definition of records any other form of data (2i storage, computerized or otherwise, to the extent |3| that those records might pertain to hi asbestos-re lated matters. isi THE WITNESS: And I don't know of any ) such records, because 1 don't know of any such m documents that were destroyed since my involvement (] in the -- in representing W. R. Grace. (91 MS. HUART: I think that concludes n 1 questions of the witness. HU MR. CASTEL: The witness will read 1121 and sign. <131 Thank you very much, everybody. d*l MS. HUART: Off the record. (isi (Discussion off the record.) tifl (The deposition was concluded at (171 6:25 p.m.) Pag* 279 OeHONENrS EIWATA SHEET 1 SIGNATURE The original of IN* Errata SN**t Ka* bean dalteerad lo P. Kvtn Cartel, E#0. Whan 1h* Enafl* 8hart has baon completed by tha deponent and rtgnad, * copy thereof should b* deltosrod lo eeoh party of record a*dMartgMter*of daHuaradto HodyJ. W. Huirt, Sag,, la whom (ha original dapeatton Iraneoript we* dethroned. INSTRUCTIONS TO DEPONENT Aiiw madlng Ma volume of your dspoadfon, birthrate any correction* or ehangea to your tortlmony and Iha reaeone thereto on the Efiato Sheet euppftedte you, and algn R. DO NOT mafia marie* or noradono on to* trenaoript volume Used. PLEASE REPLACE THIS PAGE OF THE TRANSCRIPT WITH THE COMPLETED AND SIGNED ERRATA 8HEET WhN YOU RECEIVE IT, Pag* 280 COMMONWEALTH OV MASSACHUSETTS ) I, Sarah Zahar, Registered Prole*alonrt Reporter and Notary Pubfte M and for the Commonwealth of Masaachueatt*. do hereby aerify ttot there oame bafora ma on lha 7th day of December, IBM, at approximately i:20 p.m., tha *- -*on hereinbefore nomad, who had baan previously worn to toetty 10 the truth and nothing but Ah of Nla knowledge touching and conearning tha mtotora In controversy in thla eauca; that ha was tharaupon asaftinad upon hla oath, and hit aitmlnaiton reduced to tyewriltng under my direction; jfid that tha deposition la a true record of tha testimony given by tha aHtnaaa. I further oenfy that l am nalthar attorney rror counsel for. nor related to or PdrtO 'yjQ . Pone 9fiO Block 145, Ltd v. W.R. Grace & Co.-Conn J. & SHEEHAN ASSOC (617) 423-0500 (continuation) raSCS IS (St EGBERT A. HBSHT, ESQ. (TOOS H) OSEs Blrck 145, Ltd., et al., vs. W. S. QffiCZ & 03.-Ccm, at al. HEmUeL^rMgg Twerting t-i -m" ipt- /^rr yrr rtorrwi-H^ any change eg cxicLartim to yaur testdaraqr and tin rwascn tfaemfar co DO BCT sake asrf oaries ac octaticn* ca tbe tEusespt volume ianlf sign. and. data this errata sheer (before & notary Public, if i). Refer to page 279 of the t..inar.. iph far // jSBBGS cr 3T SHD -essm / 168 1 L85 ^ 20 / hear 7 ~ logs / 208 13 1 Delete " the" 213 ^ 15 ^ Delete " for 7/ 247______2*6 _____Wolter... 77 252"____11.16 Wo Iter _ 253 ^ l 7 Bolter vice vice vice vice here Laws Walter Belter Stenographic Error SCenoeranhic Error Clarification Clarification Stenographic Error ^^5^4ri9^24i^^jiac- eaCLrir answer. Insertr - - - - . 25b y L /rno. war orrxce was not visited. during 7the sweep."' 263 ^ 24 264. ^ 3 ^ Delete " In." / ` chat vice and Correction Clarification 277 13 7 D*Errteo vice - r i D*t^c:j .Stenoaraohie Error Ibm aai tbe fhtsqning at at^nd^taMfSaaqjMtt. cn 1996; sod. aoo^pt fear aaj c adfefc to the nrawuript m shobstojhi /V BEECBB IS # / -- Iff 10CliC&&B sxBTRs: _ (Siga ofjfrfcne^c) - , Dillon J Fercuson PARTNER 225-7001 Mayor. Day. Caldwell 8 Keeton, l.l.p. 700 LOUISIANA, SUITE 1900 HOUSTON, TEXAS 77002-2778 (713) 225-7000 September 23, 1994 TELEC0PT (713) 2257047 TELEX 382613 Ms. Tracy K. Christopher Susman & Godfrey, L.L.P. 1000 Louisiana, Suite 5100 Houston, Texas 77002-5096 VIA COURIER Re: Block 145, Ltd., AVAmerica Grundbestiverwaltungsgessellschaft MBH, Louisiana Walker, Ltd., Tower Ltd., Post Oak Tower, ltd., and Hines Ranger Associates Limited v. W.R. Grace & Co.-Conn, and Vermiculite Products, Inc. ; Cause No. 93-61850. In the 164th Judicial District Court. Harris Countv. Texas Dear Tracy: Reference is made to your letter dated August 23, 1994, concerning the draft deposition notice furnished to us on August 18, 1994, and Grace's response to the items included in the draft Exhibit B to such notice which was previously furnished to us. This is to (i) furnish you with the names of persons within the W.R. Grace organization most knowledgeable about the subject matter items listed in the draft Exhibit A to deposition notice which was previously furnished to us and (ii) provide further response to the draft Exhibit B subpoena duces tecum and your follow-up questions concerning the same. IDENTIFICATION OF PERSONS MOST KNOWLEDGEABLE: Persons most knowledgeable about subject matter items in Exhibit A are the following, listed by letters and numbers corresponding to Exhibit A: A (i) and (ii); B (viii); C (xxii); D (xxiii); and E (xxv) Robert A. Murphy A (iii) and (iv); all of B except (viii); C (xvii); and D (xxiv) Harry Eschenbach C(xv) Richard A. Senftleben Ms. Tracy K. Christopher September 23, 1994 ^ Page 2 C (xvi) C (xviii) Grace will seek protection. Robert B. Lamm C (xix) C (xx) Marjorie Metcalf and Jeanette Hamilton C (xxi) There is no Grace employee knowledgeable about such matters. Since SBA documents are being separately produced to plaintiffs (SEE SUBPOENA DUCES TECUM ITEMS - C (xxi)), the inquiry in this area seems to be moot. If plaintiffs require a response, then (i) as to the portion of the inquiry dealing with the existence, extent and current location of any SBA documents, there is no Grace employee most knowledgeable and (ii) as to the portion of the inquiry dealing with the date on which the last SBA related documents were added to the Winthrop Square Repository, Robert A. Murphy is the party most knowledgeable. SUBPOENA DUCES TECUM ITEMS: Further responses to the items contained in draft Exhibit B and to your follow-up questions are presented below. The responses are listed by letters and numbers corresponding to Exhibit B. A. Abatement Documents and Databases: 0)(ii) Copies of the abatement documents which have been added to the Winthrop Square repository since October 1993 are being furnished to you contemporaneously under separate cover. Ms. Tracy K. Christopher September 23, 1994 * 1 Page 3 The additions to the abatement binders are not limited to abatements that were completed by December 31, 1993. In addition, some documents from abatements for which notice was received before December 31,1993 but which were completed in 1994 are included in the documents to be produced contemporaneously with this letter. Your August 23 letter misstates the manner in which abatement documents are maintained. Documents pertaining to current abatement are not maintained in a centralized location within Grace's legal department. Documents such as those contained in the asbestos abatement binders in the Winthrop Square repository are gathered annually and generally pertain to completed abatements. Grace has undertaken a review of its asbestos abatement activities in the United States and Puerto Rico for which documents have not yet been assembled and placed in Winthrop Square. None of the abatement efforts described in those documents involve removal of fireproofing materials. Though Grace maintains that it is not required to do so under applicable rules of discovery, because of your strong insistence and in order to avoid acrimony, Grace offers to accommodate your demands by obtaining and producing documents from Grace facilities where abatements have been completed or are ongoing and for which documents have not yet been assembled and placed in Winthrop Square. Please let us know if you continue to insist upon Grace's production of these documents. If abatement occurred during Grace's ownership of a subsidiary, documentation was collected and is in Winthrop Square. A listing of Grace's subsidiaries is attached to this letter. Grace will seek protection for documents regarding abatements outside the U.S. and Puerto Rico. (iii)(iv) As indicated in our letter to you dated August 17, the Organic Chemicals Division of Grace was sold to Hampshire Chemical Corp. in December 1992. The asbestos removal database for the Organic Chemicals Division's Nashua facility was never part of the repository. If such a database exists, it is still in Nashua. Documents regarding abatements of the Organic Chemicals Division were added to the abatement documents Ms. Tracy K. Christopher September 23, 1994 Page 4 in the repository in January 1987, February 1989, June 1992 and October 1993. B. Medical Records and Databases: (v)(vi) Grace will produce post 1988 workers' compensation documents including both open and closed files. Those files are currently available for inspection and copying in Mayor, Day, Caldwell and Keeton's offices in Houston. Grace will continue to refuse to produce medical records because to do so violates applicable laws, including without limitation, die Americans with Disabilities Act. (vii) * Grace has no knowledge of the existence, whereabouts or disposition of the computer tape or the documents which were microfilmed. (viii) The 1985 sweep of the company documents included all relevant, nonprivileged documents from the vault. Copies of any relevant documents which came to the attention of Grace or its counsel, including from the vault, are included in Winthrop Square. Due to your assertion that Grace has left open the possibility that other relevant documents have been added to the vault, Grace is currently searching the contents of the vault for potentially responsive documents. () We are unable to locate a database. We have confirmed that there was a computer but it became obsolete and when it was shut down, its contents were eliminated or discarded. (x) * Grace never had control of the McGill study database. All Grace had were the employee files on which die study was based. Will you please inform us when and in what context Mr. Walsh attributed such control of this database to Grace. Ms. Tracy K. Christopher September 23, 1994 ^ Page 5 (xii), (xiv) These descriptions are too general to effectively search Winthrop Square for them using all reasonably available means. We have made inquiry of persons who might have knowledge of such documents and they have no information that will enable us to locate the documents. (xiii) Grace is still searching for these items. C. Miscellaneous Asbestos-Related Documents and Databases: (xv) We have reconsidered your request for documents in J. Peter Grace Asbestos files. We are in the process of reviewing the contents of such files and responsive, non-privileged documents will be produced for inspection and copying at Mayor, Day, Caldwell & Keeton's offices in Houston within the next few days. (xvii) Emergency and Environmental Response logs, redacted as previously described, are available for inspection and copying at Mayor, Day, Caldwell & Keeton's offices in Houston. (xix) Grace does not intend to withhold pre-1974 documents - it intends to produce them. (xx) We have now examined Bates numbers 15109344 & sefl. and have located the reference to documents "buried" in the "archives"..."a section of our perlite pit." TEVCO documents were searched by lawyers in the course of preparation for litigation after the date of this document. Grace has no knowledge of any records which continue to be stored or archived in a perlite pit. Ms. Tracy K. Christopher September 23, 1994 ^ Page 6 "*Lr " (xxi) * Safe Building Alliance documents through mid-1992 are available for inspection and copying in Mayor, Day, Caldwell and Keeton's offices in Houston. Grace is currently searching materials from mid-1992 through a current date and will provide non-privileged, responsive documents for inspection and copying within the next few days. (xxii) Our prior representation to you was never intended to include personal injury litigation in the statement that Grace was only ordered to produce documents for which it had claimed privilege in Cullen Center. On closer examination of property damage cases, we have located additional _ litigation in which a court undertook an in camera inspection of documents and determined some documents to be non-privileged. We are in the process of searching for additional documents and any documents determined to be non-privileged in property damage or personal injury cases and for which Grace does not intend to continue to assert privilege, will be produced for inspection and copying. D. Microfilmed Documents: (xxiii) Materials potentially responsive to this item have recently been discovered. Twenty-four spools of microfilm of the materials produced in the state, city and county cases in Maryland in 1985 were found. There is no index to this microfilm which consists of thousands and thousands of images. As we have discussed, this film was apparently Grace's copy of documents selected for copying by plaintiffs in the Baltimore Countv and State of Maryland litigation from documents produced by Grace to those plaintiffs. We understand that you are considering whether you desire copies of this film (or copies of the documents presented on the film) and that you will let us know your decision. If you determine that you require the film (or copies of the documents presented on the film), Grace will review the film and produce the non-privileged portions of the film. Review of the film will be a lengthy process which will be impossible to complete before Bob Murphy's deposition on October 7, 1994. Please let us know your decision as to whether you require anything further in this regard. Ms. Tracy K. Christopher September 23, 1994 Page 7 E. Other: (xxiv [sic] xxv) Grace will continue to object to this request. The above described documents that are in our possession are available to you currently and we will let you know when others are received. Please tell us when you wish to examine those documents and let us know any questions or comments you may have. cc: Mr. Robert H. Beber (w/encls.). Mr. Richard A. Senftleben (w/encl.). Mr. P. Kevin Castel (w/encl.). Mr. Daniel A. Hershman (w/encl.). Mr. Matthew T. Murphy (w/encl.). Mr. Robert A. Murphy (w/encl.). Mr. Richard H. Caldwell (w/encl.) Mr. Gary C. Miller (w/encl.) Ms. Gail A. Bartlett (w/encl.) 0174729.03 099423/1609