Document qk0G8b5bGREbmydMxNjoNmrbE

' L'C > O E M C 1 L C C y ""N Y r.JA L IT Y A3SUF. ANC production specif icattcn P R O D U C T C O T E : 2 o 7 f l r.-AC: 292 E F F E C T I V E : 2 A ?? 2S751 PAGE: 1 .'JAKE: ESTERD-l (R> 2Aj 5E H E F S I C I G E D E S C : A b E R O I L Y * E M U L S IF I ABLE L I C 'JlO. PPL B C V T / I N C S T E S : EFA RES. .NO. 2 6 4--H9-464 ? A EST. N O . ASA-MI-1 ?ROD*N PTS U-S. :v m ro \Al VjSl PO d e p t : 3i TEST ITEM : UNIT : LIMITS : TEST METHODS 2<y5-TR iCHLOROPHE.NDXY ACETIC <24,o-T> hutcxyethyl acid, esters MIN. 2 A E- T >,Cn ECUIV. MIN. 2A *5-T -CID CONTENT INERT INGREDIENTS 227.8-TETRACHL0FC0IFEN7C- P-Cl'OXI'i 0/9 Y: LPS/CAL V PPM SPECIFIC GRAVITY 3 20 EK-jLSljv CREAM RATE 5 `i~ . * IOC PPM HAFD WATER * 5 C'U P P M H A R D W A T E R I ML ML 6C *9 <*3.H 3.97-A.l 29.1 28751 28731 .. 2 8 7 5 1 28 751 <0.038 BASED ON 2R5-T ACID 1 . 0 8 9 (APPRO:K.l ASTM D891 1.0 MAX. G8 AG 155 2 ------- CC M P S 1T I C \ (NOMINAL)- *2A.5-T.BUTGXYETHYL ESTERS A S S O C I A T E D C O M P O N E N T S FROM. 29.5-T hUTG XYETHYLESTEP t o t a l MAX. GAF AC RE 610 *GAF AC PE 5 1 C A R O N A T I C OR r o m a t i c /a l i p h a t i c b l e n d e d OIL (PETROLEUM SOLVENTS) % X X *S0 % 60.9 2.0 2.2 3.5 31.2 027613 -72-5 NO TNC TNO --, O fs> CO CO CO ------- R A W M A T E R I A L S ------2 R 5 -T A C I D B U T O X Y E T H Y L E S T E R *GAFAC RE 610 CAFAC PE 510 SURFACTANT KEROSENE NAPHTHA* HEAVY AROMATIC SOLVENT -RM SPEC# S7619-R1 48698-R2 48b3R-R2 2 731 -F 1 5S20R-P1 CAS# -- CC25R5-59-7 TNO TNC P08008-20-6 06S333-83-0 ?:: riibc72 ri: 2S183bG PI-: 2 6 1 8 ri9e MISC SAMPLE #X1 CAL CAN 55 jAL JS ?A0D*N n o t e : (1) ( T H I S NOTE R E S E R V E D FCR F U R T H E R C H A N G E N GT I F I C A T U N . ) ... L'-cJ i 7 (2) L I M I T IE H I G H E R THAN L A r E L C L A I V ( 5 9 . IX E S T E R A N D A2.5ti AE) TC E ..SUP r P " E E LIC T V T S pru:.:-i. c ER GAL L O \ C i_A I v 1 T H F O R M U L A T I O N U S I N G L I G h TEA S O L V E N T S Y S T E M . - i - R E G l S T R A T I 0 *' \,PT D E S I R A L'LE ( > INCISAT ..DOC t a :;E'-a r o f t h e :,c '. c k e x i c ^ l c o m p a n y 0008421 r CN F I D E N T I A L * * A N O T H E R PV.-l F O L L O W S DOH 2 133680 T- c . > = - \ y ^ l- l i f y a s s u -avC PRODUCTIC'. SPECIFICATION PRODUCT CD DE: 28751 FRCC*V \uT: CONTINUEDi 28751 page: 2 AS RO UCT LIFE IS ONLY TO DE PL-T TE CUF.RE-m STOCK CF TECH E S T E R . (3 > SPECIFICATION IS FOR PRODUCT TO LZ MANUFACTURED FROH EXISTING INVENTORIES OF 2**5-TRI-CHL:.R0PMENCJ'YACEriC ACID 3 U T 0 X Y E T H Y L * ESTERS; NO NEVI ESTER PRODUCTION IS ANTICIPATED. q (4) FORMULATION IS X RM 464. _ PRODUC TICN SPEC a p p r o v e r s : d.L. GOLD QAC 23 APR 82 5. ISE*:*.-ARGER METHODS 2 7 APR J Tt* TTCHj :-: PRCO ?3 MAP. 8? 82 ro V*J Vrt ro M aJ a SKURSK I PROD 23 SAP 82 J>R> GLEOHILL ACPC 23 MA R 82 J*S* UliGDS CAC/QAA 23 MA R 82 R L C-ANTZ PROP 31 HAR 52 J.A. SCMULT7 RED T9 MAR 82 JJ,aU<o*. A aEa w CRE.NCKPOHL QA DEPT C 0\TI\C PSC 13 APR SCHOBER AG REG- lo DPENCKFCHL 3A DEPT 16 AFP 82 APR 82 24 MAY 82 82 APPROVALS :CIV-CEPT DATE :APPROVALS :d i v -p e p t . DATE * : : m * PRODUCTS NOT MEETING THIS SPECIFICATICN MUST NT BE SHIPPED UNLESS AUTHORIZED FY SALES AND PRODUCTION MANAGEMENT (R ) INDICATES a TRADEMARK OF THE DOW CHEMICAL COMPANY * *D CW CONFIDENTIAL*** LAST PAGE Q ft* m 0008422 P C^ agent orange trial MOYER V DOW UNITED STATES DISTRICT COURT EASTERN DISTRICT of NEW YORK x in re Product "AGENT ORANGE" Lability Litigation x 1 _ k_ MDL N o . 381 IN CLERK'S OFFICE (All Ca se sty-S.DISTRICTCOURT E.D.N.Y * JAN231.930 ' PLAINTIFFS' FIRST WAVE INTERROGATORIES TO DEFENDANTS TIME A.M. P.M.. This Master Document submitted 8520 30-01-15 -page 1Plaintiffs' First Wave Interrogatories to Defendants PLAINTIFFS' FIRST WAVE INTERROGATORIES TO DEFENDANTS INSTRUCTIONS All documents produced shall be identified by each numbered request to which they are responsive, preceded by the designation "Defendant's name (e.g. "DOW") Document 80-01-14-", and each such document can be identified thereafter by document number followed by the page of the document and any internal page subdivisions contained in such document, and the copy provided shall be of sufficient contrast and quality as to be suitable for reproduction by xerography or microohotography. If any privilege is claimed as to any document called for by this request, your response hereto shall state the date of such document, the name and address of each such person who participated in preparing it, the name and address of each person, if any, who signed it, the name and address of each person to whom it was directed, circulated or distributed, and, the name and address of each person now in custody, control, or possession of such document. DEFINITIONS 8521 80-01-15 -page 2Plaintiffs' First Wave Interrogatories to Defendants For purposes of this Notice, the following definitions are applicable, unless otherwise indicated herein: 1. "Document" is used herein in tie broadest possible sense and means any written or graphic matter of whatever kind or nature, however produced or reproduced, or to other tangible record, and, without limitation, shall include, among other things: letters, correspondence, memoranda, notes, reports, papers, files, books, records, studies, appraisals, analyses, lists, surveys, budgets, financial statements, financial projections, financial calculations, contracts, agreements, recommendations, summaries, periodicals, charts, graphs, tables and tabulations, interviews, speechs, affidavits, transcripts, depositions, brochures, books of account, bills, invoices and other records of obligations or expenditures, cancelled checks, vouchers, receipts and other records of payment, press releases, photographs, calendars, diary entries, telegrams and other communications sent or received, minutes or notes of meetings including those of the Boards of Directors of the several corpo rate defendants, visits or telephone conversations, inter-office communications, results of investigations, working papers, maps or papers similar to any of the foregoing, including all drafts, outlines, and proposals of any such documents (whether or not actually used); or any other means of preserving thoughts of expression, (including, without limitation, tape recordings and/or transcriptions thereof), and all tangible things from which information can be processed, or transcribed, whether 8522 80-01-15 -page 3Plaintiffs' First Wave Interrogatories to Defendants originals, copies or drafts, (including, without limitation, non-Identical copies), however produced or reproduced. Note that a document with handwritten or typewritten notes, editing marks, etc. Is not and shall not be deemed Identical to one without such qualifications, additions, or deletions. 2. For purposes of this request, "Document" shall also mean all graphic, mechanical, or electronic reproductions, represen tations, recordings, or compilations of data of any kind, Includ ing, but not limited to drawings, charts, graphs, motion picture films, microfilms, microfiles, photograph and tape recordings, video tapes, any transcripts or printouts produced therefrom, or other data compilations from which Information can be obtained, and all drafts of any of the foregoing. 3. For purposes of this request, "Document" shall also Include results of scientific studies, experiments, analyses, and investigations In whatever form such results may be recorded. 4. For the purposes of this request, the term "draft" means any earlier preliminary, preparatory, or tentative version of all or part of a document, whether or not such draft was superseded by a later draft, and whether or not the terms of the draft are the same as, or different from the terms of the final document. 5. "Company" or "Corporate defendant(s )" shall mean the corporation itself, Its predecessors and successors, its 8523 30-01-15 -page 4Plalntlffs' First Wave Interrogatories to Defendants subsidiaries, divisions, affiliates, and other organizational or operating units and all of their several predecessors and successors, and any employees, agents, representatives, or other person(s) acting or purporting to act on its behalf for any purpose whatsoever. 6. "Person" shall mean any individual, partnership, firm, association, corporation, joint venturer, or other business or any other public or private legal entity. 7. "USA" means third-party defendant THE UNITED STATES OF AMERICA and its offices, departments, bureaus, agencies, representatives, department heads, agency heads, bureau chiefs, agents, attorneys, employees, or any other person, or persons, acting for, or on behalf of THE UNITED STATES OP AMERICA, under the authority or control of THE UNITED STATES OF AMERICA, or any one, or group of the foregoing. 8. "Government" shall mean the government of the United States including its executive, legislative, and judicial branches and shall also include the Department of Defense, Department of Army, Department of Air Force, Department of Navy, Veterans Administration, and any other organization within the Government of the United States of America charged with the prosecution of the war in Vietnam from 1961 through 1972. 9. For purposes of this request, the term phenoxy 8524 30-01-15 -page 5Plaintiffs' First Wave Interrogatories to Defendants herbicides Includes all those conger Le chemicals commonly referred to as "2,4,5-T" and "2,4-D." 10. For purposes of this request, the term "polychlorinated dibenzo-P-dLoxins (PCDDs)" Includes 2,3,7,8-tetrachloro dLbenzo -dioxln (TCDD or "Dioxin"). 11. For purposes of this request, the term "polychlorinated dibenzo furans (PCDFs)" includes 2,3,7,8-tetrachloro dibenzo furan (T C D F ). I. Plaintiffs' Interrogatories Directed to Each of the Corporate Defendants To Elicit the Names of Possible Deponents. 1. If your company is or was organized by divisions, departments or other units other than subsidiaries, state for each year from 1948 to date the name of each such division, department or unit engaged in each of the following activities with respect to phenoxy herbicides, identifying the time periods it was engaged in such activity: 1.1 formulation; 1.2 manufacture; 1.3 advertising; 8525 30-01-15 -page 6Plaintiffs' First Wave .Interrogatories to Defendants 1.4 marketing; 1.5 promotion; 1.6 sales; 1.7 customer service; 1.8 Extension services. and provide an organization chart of each such dlvison, department or other subdivision identified in response to Interrogatory 1. 2. As to each division or other unit identified in the answer to Interrogatory 1, identify each person in charge of the activities enumerated in subparagraphs 1.1 through 1.8 of such division or unit. If different persons were in charge at different times, identify each such person and the time period during which said person was in charge. 3. Identify by name and place of incorporation any company engaged in the manufacture and marketing of phenoxy herbicides which was acquired or transferred by your company during the period 1948 to date, giving in each case the date of such acquisition or transfer and the disposition of such business. 4. Identify by geographic location and post office address the facilities utilized in whole or in part for the manufacture of phenoxy herbicides, and for each of such facilities: 8526 30-01-15 -page 7Plaintiffs' First Wave Interrogatories to Defendants 4.1 State the number of employees including executive personnel. 4.2 State the names, last known home addresses, telephone numbers, job descriptions, and employment history of each management employee involved in the formulation, manufacture, and/or production of phenoxy herbicides, together with their job titles and the job description associated with such titles maintained by the company. 5. Identify all health and safety personnel who examined, treated, or otherwise were involved with employee health at each of the facilities identified in response to Interrogatory 5. 6. State the names, last known home addresses, telephone numbers, job descriptions, and employment history of each employee of the company who worked at each of the facilities identified in response to Interrogatory 5 who is now deceased and the causes of death listed on the death certificates. 7. State the names, last known home addresses, telephone numbers, job descriptions, and employment history of each employee of the company who worked at each of the facilities identified in response to Interrogatory 5 who is now disabled and the stated cause of such disability as is known to the company. 8. State the names, last known home addresses, telephone numbers, job descriptions, and employment history of all company Qr 0 7 O / ( 30-01-15 -page 8Plaintiffs1 First Wave Interrogatories to Defendants personnel with any management or supervisory responsibility for the formulation, manufacture, product ion,advert ising, promotion, marketing and sale of phenoxy herbicides who have left the company's employ for any reason whatsoever (including death or retirement) since 1948. 9. State the names, last known home addresses, telephone numbers, job descriptions, and employment history of each and every individual acting by or on behalf of the company and/or known to be acting by or on behalf of the other defendants in connection with the manufacture, production, sale, distribution, marketing and advertising of phenoxy herbicides. 10. Identify the persons, if any, that submitted bids for the formulation, manufacture, and/or production, advertising, promotion, marketing and sale of phenoxy herbicides, and state the substance of any bids actually submitted. 11. State the names, last known home addresses, telephone numbers, job descriptions, and employment history of the individual(s ) best qualified to describe the process whereby phenoxy herbicides were manufactured, formulated, advertised, marketed, promoted and sold . 12. Identify each person employed by or who acted on behalf of or who represented the company before any agent, agency or committee of the Government or who submitted any written document 8528 80-01-15 -page 9Plaintiffs' First Wave Interrogatories to Defendants or statement, data or report to any such agent, agency or committee of Government concerning phenoxy herbicides; and as to each such person so identified: 12.1 State the date and place such information or testimony was given; 12.2 Identify the person, agency or committee receiving such information or testimony; and 12.3 Relate the substance of such statement, data or report, or provide a copy thereof. 13. The names, last known home addresses, telephone numbers, job descriptions, and employment history of each and every employee including executives and management who have claimed disability arising out of their employment at each facility Identified In response to Interrogatory 5. 14. If you or your attorneys have Interviewed any present or past employee of any other corporate defendants concerning phenoxy herbicides, with respect to each such Interview: 14.1 Identify the person so Interviewed, the person or persons conducting the Interview, the persons present when the interview was taken, the persons having knowledge of the substance thereof, and the persons having custody or control of any recording of the Interview or any summary or evaluation thereof; 14.2 state the date and place of any such interview. 8529 80-01-15 -page 10Plaintiffs' First Wave Interrogatories to Defendants 15. State whether any person acting on behalf of your Company communicated during the period from 1948 to date with any officer, agent, employee or other person acting or purporting to act on behalf of other corporate defendants named in the compliant or any other corporation engaged in the manufacture and sale of phenoxy herbicides, or with any Intermediary concerning phenoxy herbicides. 330 30-01-15 -page 11Plalntlffs' First Wave Interrogatories to Defendants II. Plaintiffs' Interrogatories Directed to Each of the Corporated Defendants To Disclose the Existence, Location and Custodian of Documents 16. Identify each study, report or other memorandum prepared or used by you during the period 1948 to date relating or referring to any of the following: 1.1 the invention and development of phenoxy he rb ic ides ; 1.2 the manufacturer of phenoxy herbicides; 1.3 the formulation of phenoxy herbicides; 1.4 the advertising of phenoxy herbicides; 1.5 the marketing of phenoxy herbicides; 1.6 the promotion of phenoxy herbicides; 1.7 the sale of phenoxy herbicides; 1.8 customer service relating to phenoxy herbicides; 1.9 Extension services relating to phenoxy herbicides. 17. Identify each report, statistical bulletin or memorandum submitted by your company to any Government from 1945 to date with respect to phenoxy herbicides. 18. Identify by number or date and effective period each 8531 price list or catalog description of phenoxy herbicides manufactured, formulated, advertised, marketed, promoted and sold by your Company including additions, Insertions, supplements and changes therein, together with any advertising and promotional literature relating to such phenoxy herbicides for the period 1945 to date. 19. List each study or report concerning the productivity of labor engaged in the production of phenoxy herbicides prepared or used by you during the period 1945 to date, including, but not being limited to, those used in any labor, wage or salary negotiation affecting such employees. 20. Identify each document referring or relating in any way to phenoxy nerbicides passing between your company and any officer, agent, employee or other person acting or purporting to act on behalf of any other corporate defendants or any other non-defendant company engaged in the manufacture and sale of phenoxy herbicides during the period from 1945 to date. 21. Identify each document, if any, which sets forth how conflicting recommendations as to the manufacture, marketing and use of phenoxy herbicides from your advertising, promotion, mar keting and sales employees, your engineering or technical employees, and your consultants were resolved. 85.32 22. Describe and explain how conflicting recommendations as to the manufacture, marketing and use of phenoxy herbicides from your advertising, promotion, marketing and sales employees, your engineering or technical employees, and your consultants were resolved. 23. Identify each document, if any, which sets forth the powers, duties and responsibilities assigned to your engineering or technical employees involved with phenoxy herbicides. 24. Describe the powers, duties and responsibilities associated with the job titles of each of your engineering or technical employees concerned with the formulation, manufacture, and/or production phenoxy herbicides. 25. Identify each document stating the policy of your Company with reference to the formulation, manufacture, and/or production, advertising, promotion, marketing and sale of phenoxy herbicides, as well as such documents embodying intermediate recommendations prior to final approval of such policy or policies, for the period from 1945 to the present. 26. For the period 1945 to date, identify each person who had authority to or was permitted to make or approve policy decisions with respect to the manufacture, marketing and use of phenoxy herbicides, the job title, and the extent of the authority of each such person with respect to phenoxy herbicides. 8533 27. State whether or not your company had any policy with respect to compliance with the laws of the United States and the several states dealing with pesticides, and, if so, describe the policy and Identify any directive or other writing which sets forth such policy. 23. If you answered Interrogatory 12 affirmatively, identify any person who, in connection with phenoxy herbicides, was discharged, reprimanded or otherwise disciplined for what was believed to be or found by you to be a violation of such policy. 29. Identify any documents relating to the analysis, examination, testing, and results of any medical complaints by employees including executive employees at the various facilities which manufactured and produced phenoxy herbicides. 30. Identify any documents concerning the dates, times, places, and effects attributable to exposure of human beings to phenoxy herbicides, polychlorinated d Ibenzo-p-dioxIns (PCDDs), or polychlorinated dibenzo furans (PCDFs). 31. Identify any documents concerning the dates, times, places, and results of animal tests Involving exposure to phenoxy herbicides, polychlorinated dibenzo--dioxins (PCDDs), or poly chlorinated dibenzo furans (PCDFs). 32. Identify any documents concerning warranties, 8534 representations, assurances, and/or promises made by this defendant or known to this defendant to have been made by other defendants concerning phenoxy herbicides, polychlorinated d ibenzo--dioxins {PCDDs) and/or polychlorinated dibenzo furans (P C D F s ). 33. Identify any documents concerning any communications between or among this corporate defendants and the other corpo rate defendants and/or purchasers or prospective purchasers of phenoxy herbicides concerning polychlorinated d ibenzo-D-dioxins (PCDDs) or polychlorinated dibenzo furans (PCD^s). 34. Identify any documents concerning the formulation, manufacture, and/or production of phenoxy herbicides. 35. Identify any documents concerning phenoxy herbicides and/or polychlorinated dibenzo--dioxins (PCDDs) and/or poly chlorinated dibenzo furans (PCDFs) supplied to the government. 35. Identify any documents concerning any quality control or quality assurance programs of the company with respect to phenoxy herb ic ides . 8535 Leonard L. Rivkin, Esq. RIVKIN, LEFF & SHERMAN Attorneys for Defendant THE DOW CHEMICAL COMPANY 100 Garden City Plaza Garden City, New York 11530 Wendell B. Alcorn, Jr., Esq. CADWALADER, WICKERSHAM & TAFT Attorneys for Defendant DIAMOND SHAMROCK CORPORATION One Wall Street New York, Nev; York 10005 William Krohley, Esq. Bud Holman, Esq. Kelly, Drye & Warren Attorneys for Defendant HERCULES, INCORPORATED 350 Park Avenue New York, New York 10022 Morton B. Silverman, Esq. CLARK, GAGLIARDI & MILLER Attorneys for Defendant NORTH AMERICAN PHILIPS CORP. The Inns of Court 99 Court Street White Plains, New York 10601 Ronald S. Daniels, Esq. TOWNLEY & UPDIKE Attorneys for Defenants MONSANTO Co. Chrysler Building 405 Lexington Avenue New York, Nev/ York 10017 UNITED STATES DISTRICT COURT EASTERN DISTRICT of NEW YORK in re ".AGENT ORANGE" Product Lability Litigation x MDL N o . 381 r' I L i-- u/ ( A l l C a s e s ) IN CLERK'S OFFICE U. S. DISTRICT COURT E.D.N.Y. JAN23'Pen -fo PLAINTIFFS' FIRST NOTICE TO TAKE DEPOSITIONS OF CORPORATE DEFENDANTS TIME A.M P.M This Master Document submitted % 30-01-15 -page 1- Notlce To Take Deposition 8537 ,NITED STATES DISTRICT COURT EASTERN DISTRICT of NEW YORK - - - - - - - - - - - - - - - -x in re "AGENT ORANGE" Product Liability Litigation x MDL No. 381 (All Cases) PLAINTIFFS' FIRST NOTICE TO TAKE DEPOSITIONS OF CORPORATE DEFENDANTS PLEASE TAKE NOTICE, that pursuant to Rules 30 and 34 of the Federal Rules of Civil Procedure, plaintiffs will take the depositions of the appropriate representatives, officers or employees of the corporate defendants on 21 February 1980 at the United States Courthouse for the Eastern District of New York, Westbury Annex, 900 Ellison Avenue, Westbury, Long Island, New York, or such other site as the court shall designate. Each such Examination shall take place before a Notary Public, duly authorized to administer oaths and take testimony, commencing at 1000 hours on the morning of the day designated, and continuing from day to day until completed. PLEASE TAKE FURTHER NOTICE that all witnesses are instructed to produce at their respective examinations any and all documents and records within their possession, custody or control relating to the existence, identity, date generated, date received, and 30-01-15 -page 2- Notice To Take Deposition 8538 present location of the documents described in this Notice. This notice is directed to each of the corporate defendants and is a notice to take the deposition of each such corporate defendant as follows: 1. Defendant THE DOW CHEMICAL COMPANY by a person or persons with knowledge of the existence and identity of any and all documents in the possession, custody or control of said corporate defendant relating in any way to: (a) the development, testing, use and purchase of phenoxy herbicides. (b) a herbicide known as "Agent Orange" or "Herbicide Orange"; (c) phenoxy aliphatic herbicides; (d) polychlorinated dibenzo-p-dioxins (PCDDs) and poly chlorinated dibenzo furans (PCDFs). Such person or person produced by said defendant for examination shall have knowledge of the date each such document was generated and the time, manner and circumstances by which each such document came into possession, custody or control of said corporate defendant. 2. Defendant MONSANTO CO. by a person or persons with knowledge of the existence and identity of any and all documents in the possession, custody or control of said corporate defendant relating in any way to: 80-01-15 -page 3- Notice To Take Deposition (a) the development, testing, use and purchase of phenoxy herbicides. (b) a herbicide known as "Agent Orange" or "Herbicide O r a n g e "; (c) phenoxy aliphatic herbicides; (d) polychlorinated dibenzo-o-dioxins (PCDDs) and poly chlorinated dibenzo furans (PCOFs). Such person or person produced by said defendant for examination shall have knowledge of the date each such document was generated and the time, manner and circumstances by which each such document came into possession, custody or control of said corporate defendant. 3. Defendant HERCULES, INCORPORATED by a person or persons with knowledge of the existence and identity of any and all documents in the possession, custody or control of said corporate defendant relating in any way to: (a) the development, testing, use and purchase of phenoxy herbicides. (b) a herbicide known as "Agent Orange" or "Herbicide Orange"; (c) phenoxy aliphatic herbicides; (d) polychlorinated dibenzo--dioxins (PCDDs) and poly chlorinated dibenzo furans (PCDFs). Such person or person produced by said defendant for examination shall have knowledge of the date each such document was generated and the time, manner and circumstances 80-01-15 -page 4- Motice To Take Deposition 8540 ay which each such document came into possession, custody or control of said corporate defendant. 4. Defendant DIAMOND SHAMROCK CORPORATION by a person or persons with knowledge of the existence and identity of any and all documents in the possession, custody or control of said corporate defendant relating in any way to: (a) ' the development, testing, use and purchase of phenoxy herbicides. (b) a herbicide known as "Agent Orange" or "Herbicide Orange"; (c) phenoxy aliphatic herbicides; (d) polychlorinated dibenzo--dioxins (PCDDs) and poly chlorinated dibenzo furans (PCDPs). Such person or person produced by said defendant for examination shall have knowledge of the date each such document was generated and the time, manner and circumstances by which each such document came into possession, custody or control of said corporate defendant. 5. Defendant THOMPSON-HAYWARD CHEMICAL COMPANY by a person or persons with knowledge of the existence and identity of any and all documents in the possession, custody or control of said corporate defendant relating in any way to: (a) the development, testing, use and purchase of phenoxy herbicides. (b) a herbicide known as "Agent Orange" or "Herbicide 80-01-15 -page 5- Notice To Take Deposition 8541 Orange" ; (c) phenoxy aliphatic herbicides; (d) polychlorinated dibenzo-ja-dloxIns (PCDDs) and poly chlorinated dibenzo furans (PCDFs). Such person or person produced by said defendant for examination shall have knowledge of the date each such document was generated and the time, manner and circumstances by which each such document came into possession, custody or control of said corporate defendant. Counsel for all parties are invited to attend and cross exam ine . Dated: Patchogue, Mew York 15 January 1990 Victor John Yannacone, jr. YANNACONE & ASSOCIATES Plaintiffs Attorneys P .0. Address Post Office Drawer #109 Patchogue, Mew York 11772 (area code 516) 654-2299 TO: ALL PARTIES (Service List Annexed) 30-01-15 -page 6- Motice To Take Deposition 2 Leonard L. Rivkin, Esq. RIVKIN, LEFF & SHERMAN Attorneys for Defendant THE DOW CHEMICAL COMPANY 100 Garden City Plaza Garden City, New York 11530 Wendell B. Alcorn, Jr., Esq. CADWALADER, WICKERSHAM & TAFT Attorneys for Defendant DIAMOND SHAMROCK CORPORATION One Wall Street New York, New York 10005 William Krohley, Esq. Bud Holman, Esq. Kelly, Drye & Warren Attorneys for Defendant HERCULES, INCORPORATED 350 Park Avenue New York, New York 10022 Morton B. Silverman, Esq. CLARK, GAGLIARDI & MILLER Attorneys for Defendant NORTH AMERICAN PHILIPS CORP. The Inns of Court 99 Court Street White Plains, New York 10601 Ronald S. Daniels, Esq. TOWNLEY & UPDIKE Attorneys for Defenants MONSANTO Co. Chrysler Building 405 Lexington Avenue New York, New York 10017 \ AFFIDAVIT OF SERVICE BY FAIL STATE OF NEW YOLK COUNTY OF SUFFOLK C.c . i I JOAN CACACF, being duly sworn, deposes and says that deponent is not a party to the action, is over 18 years of age and resides at Coram, New York. That on the 16th day of January, 1980 deponent served the within PLAINTIFF'S FIRST NOTICE TO TAKE OPPOSITION OF CORPORATE DEFENDANTS upon the following attorneys in this action at the addresses designated by said, attorneys for that purpose by depositinc a true copy of same enclosed in a postpaid properly addressed wrapper in an official depository under the exclusive care and custodv of the United States Post Office Department within State of New York: BUD HOLMAN, FRO. WILLI Ail KROHLEY, FRO. Kelly, Drve & Barren 350 Park Avenue New York, New York 10022 RONALD R. DANIELS, NRO. TOWILEY & UPDITE 405 Lexincton Avenue :Iew York. New York 10017 WENDELL B. ALCORN, JR., FRO. Cadwalader, Wickersham & Taft One Wall Street New York, New York 10005 MORTON B. SILVERMAN, FSO. Clark, Gagliardi & .Miller The Inns of Court 99 Court Street White Plains, New York 10601 LEONARD L. RIVXIN, ESQ. Rivkin, I.eff & Sherman 100 Garden City Plaza Garden City, New York 11530 WILLIAM H. SAUNDERS, ESQ. WILLIAM A. LYNCH, ESQ. PAUL G. LANF, ESQ. BLACKWELL, SANDERS, MATURITY, WEAR & LOMBARDI Five Crown Mentor 2480 Pershing Road Kansas , Missouri 64108 BALER & MC KENZIF Suite 2800 Prudential Plaza Chicago, Illinois 60603 MARSHALL A. BERNSTEIN, FRO. Bernstein, Bernstein & Harrison 1521 Locust Street Philadelphia, Pa. 19102 8544 MLLVIN b l o c k , f s o . 16 Court Street Brooklyn , Lev York 11241 PAVTD JAROSLALTICZ , LSO. 2 Lafayette Street New York, New York 1000 7 Sworn to before me this 16th day of January, 1980 NOTARYLOPRURBALIINCE, SCtILfeENofTOMew York CorwmQiusasiloifNnieodE. xi5on2ir-So4us6fMf6o0lak2rc0Ch6o3un0t,y19fQlU* 8545 UNITED STATES DISTRICT COURT EASTERN DISTRICT of NEW YORK Ln r e "AGENT ORANGE" Product Liability Litigation x x r I a-- __ __, IN CLERK'S OFFICE U. S. DISTRICT COURT E.D.N.Y. ic JAN231860 MDL No. 381 (All Cases) TIME A.M P.M PLAINTIFFS' NOTICE TO CORPORATE DEFENDANTS TO PRODUCE DOCUMENTS This iMaster Document submitted 8 ET J ~ 80-01-1 5 -page 1- Plaintlffs Notice To Defendants to Produce Documents ( UNITED STATES DISTRICT COURT EASTERN OISTRICT of NEW YORK in re "AGENT ORANGE" Product Liability Litigation x x MDL No. 381 ( M l Cases) PLAINTIFFS' NOTICE TO CORPORATE DEFENDANTS TO PRODUCE DOCUMENTS Pursuant to Rule 34 of the Federal Rules of Civil Procedure, plaintiffs request that each of the corporate defendants produce and permit the plaintiffs or their representative(s) to inspect and copy the documents described in the schedule annexed hereto in accordance with the definitions and instructions contained herein, at 1000 hours on the morning of 19 February 1980 at the United States Courthouse for the Eastern District of New York, Westbury Annex, 900 Ellison Avenue, Westbury, New York. This Request is a continuing request. If at any time after production of documents in response hereto, and prior to the trial of this action, any of the corporate defendants comes into possession, custody, and/or control of additional documents responsive to any item herein, then such corporate defendants shall, within 30 days before trial, produce such documents at th offices of YANNACONE & ASSOCIATES, lead counsel for plaintiffs, or at such other place in Suffolk County, New York, as counsel 8547 30-01-15 -page 2- Plaintiffs Notice To Defendants to Produce Documents for plaintiffs and the corporate defendants may agree, and permit the plaintiffs or their representative(s) to inspect and/or copy said documents. Additionally, if any of the corporate defendants assert a privilege with respect to one or more documents, such document or documents should be produced under seal and deposited with the Court, and that an inventory be provided to plaintiffs describing each such document, its content and the privilege(s) asserted. DATED: Patchogue, New York 15 January .1930 Victor John Yannacone, jr. YANNACONE & ASSOCIATES Plaintiffs Attorneys P.O. Address Post Office Drawer #109 Patchogue, New York 11772 (area code 516) 654-2299 TO: ALL PARTIES 8o r 80-01-15 -page 3- Plaintiffs Notice To Defendants to Produce Documents DEFINITIONS For purposes of this Notice, the following definitions are applicable, unless otherwise indicated herein: 1. "Document" is used herein In the broadest possible sense and means any written or graphic matter of whatever kind or nature, however produced or reproduced, or to other tangible record, and, without limitation, shall Include, among other things: letters, correspondence, memoranda, notes, reports, papers, flies, books, records, studies, appraisals, analyses, lists, surveys, budgets, financial statements, financial projections, financial calculations, contracts, agreements, recommendations, summaries, periodicals, charts, graphs, tables and tabulations, interviews, speechs, affidavits, transcripts, depositions, brochures, books of account, bills, Invoices and other records of obligations or expenditures, cancelled checks, vouchers, receipts and other records of payment, press releases, photographs, calendars, diary entries, telegrams and other communications sent or received, minutes or notes of meetings Including those of the Boards of Directors of the several corpo rate defendants, visits or telephone conversations, inter-office communications, results of Investigations, working papers, maps or papers similar to any of the foregoing, Including all drafts, outlines, and proposals of any such documents (whether or not actually us.ed); or any other means of preserving thoughts of 8549 80-01-15 -page 4- Pla Intiffs Notice To Defendants to Produce Documents expression, (including, without limitation, tape recordings and/or transcriptions thereof), and all tangible things from which information can be processed, or transcribed, whether originals, copies or drafts, (including, without limitation, non-identical copies), however produced or reproduced. Note that a document with handwritten or typewritten notes, editing marks, etc. is not and shall not be deemed identical to one without such qual if icat.ions, additions, or deletions. 2. For purposes of this request, "Document" shall also mean all graphic, mechanical, or electronic reproductions, represen tations, recordings, or compilations of data of any kind, includ ing, but not limited to drawings, charts, graphs, motion picture films, microfilms, microfiles, photograph and tape recordings, video tapes, any transcripts or printouts produced therefrom, or other data compilations from which information can be obtained, and all drafts of any of the foregoing. 3. For purposes of this request, "Document" shall also include results of scientific studies, experiments, analyses, and investigations in whatever form such results may be recorded. 4. For the purposes of this request, the term "draft" means any earlier preliminary, preparatory, or tentative version of all or part of a document, whether or not such draft was superseded by a later draft, and whether or not the terms of the draft are the same as, or different from the terms of the final document. 8550 80-01-15 -page 5- Plaintiffs Notice To Defendants to Produce Documents 5. "Company" or "Corporate defendant(s )" shall mean the corporation Itself, Its predecessors and successors, Its subsidiaries, divisions, affiliates, and other organizational or operating units and all of their several predecessors and successors, and any employees, agents, representatives, or other person(s) acting or purporting to act on its behalf for any purpose whatsoever. 6. "Person" shall mean any individual, partnership, firm, association, corporation, joint venturer, or other business or any other public or private legal entity. 7. "USA" means third-party defendant THE UNITED STATES OF AMERICA and its offices, departments, bureaus, aqencies, representatives, department heads, agency heads, bureau chiefs, agents, attorneys, employees, or any other person, or persons, acting for, or on behalf of THE UNITED STATES OF AMERICA, under the authority or control of THE UNITED STATES OF AMERICA, or any one, or group of the foregoing. 8. "Government" shall mean the government of the United States including its executive, legislative, and judicial branches and shall also include the Department of Defense, Department of Army-, Department of Air Force, Department of Navy, Veterans Administration, and any other organization within the Government of the United States of America charged with the prosecution of the war in Vietnam from 1951 through 1972. 8551 80-01-15 -page 6- Plaintiffs Notice To Defendants to Produce Documents 9. For purposes of this request, the term phenoxy herbicides Includes all those conger Ic chemicals commonly referred to as "2,4,5-T" and "2,4-D." 10. For purposes of this request, the term "polychlorinated dlbenzo--dioxIns (PCDDs)" Includes 2,3,7,8-tetrachloro d Ibenzo p-dioxin (TCDD or "Dioxin"). 11. For purposes of this request, the term "polychlorinated dibenzo furans (PCDFs)" includes 2,3,7,8-tetrachloro dibenzo furan (TCDF). P r tro 80-01-15 -page 7- Plaintiffs Notice To Defendants to Produce Documents GEN RM. REQUESTS FOR DOCUMENTS TO GE PRODUCED 3Y EACH CORPORATE DEFENDANT 12. Such documents as will show the organizational structure, responsibility, and inter-relationship of each division or unit of this defendant with respect to the formulation, design, manufacture, production, marketing, promotion, advertisement, and sale of phenoxy herbicides. 13. An organization chart of each such dlvlson, department or other subdivision Identified In response to Interrogatory 12. 14. All documents directly or indirectly referring, or otherwise relating, directly and Indirectly, to the discovery, Invention, development, patenting, manufacture, formulation, advertising, promotion, distribution, sale and effects of phenoxy herbicides. Such documents shall be organized for the purpose of response to this Interrogatory as follows: 14.1 Any and all contracts between the company and any other person Including but not limited to the Government; 14.2 Any and all documents relating to the 8553 30-01-15 -page 3- Plalntiffs Notice To Defendants to Produce Documents discovery of phenoxy herbicides. 14.3 Any and all documents relating to the invention of phenoxy herbicides. 14.4 Any and all documents relating to the development of phenoxy herbicides. 14.5 Any and all documents relating to the patenting of phenoxy herbicides. 14.5 Any and all documents relating to the manufacture of phenoxy herbicides. 14.7 Any and all documents relating to the formulation of phenoxy herbicides. 14.8 Any and all documents relating to the advertising of phenoxy herbicides. 14.9 Any and all documents relating to the promotion of phenoxy herbicides. 14.10 Any and all documents relating to the marketing of phenoxy herbicides. 14.11 Any and all documents relating to the 8554 80-01-15 -page 9- Plaintiffs Notice To Defendants to Produce Documents distribution of phenoxy herbicides. 14.12 Any and all documents relating to the sale of phenoxy herbicides. 14.13 Any and all documents relating to the use of phenoxy herbicides. 14.14 Any and all documents relating to the effects of phenoxy herbicides. 14.15 Any and all documents relating to the effects of polychlorinated d Ibenzo-o-d loxlns (PCDOs). 14.16 Any and all documents relating to the effects of polychlorinated dibenzo furans (PCDFs). pGc;J etc %J iJ 80-01-15 -page 10- Plaintiffs Notice To Defendants to Produce Documents PRELIMINARY REQESTS FOR 3PECIFIC DOCUMENTS TO RE PRODUCED OY EACH CORPORATE DEPENDANT For the purpose of response to each of the following interrogatories, and any subsequent Interrogatories unless some other designating system is specifically indicated, any documents produced by the corporate defendants shall be organized according to the following decimal subdivisions of each Interrogatory paragraph number. .1 Contracts between the company and any other person including but not limited to the Government; . 2 Documents relating to the discovery of phenoxy herb ic ides . .3 Documents relating to the invention of phenoxy herbic ides . .4 Documents relating to the development of phenoxy herbicides. .5 Documents relating to the patenting of phenoxy herbicides . .6 Documents relating to the manufacture of phenoxy herbicides. .7 Documents relating to the formulation of phenoxy herbicides. .3 Documents relating to the advertising of PO rJ 0^ O 30-01-15 -page 11- Plaintiffs Notice To Defendants to Produce Documents phenoxy herbicides. .9 Documents relating to the promotion of phenoxy nerb icides . .10 Documents relating to the marketing of phenoxy herbicides. .11 Documents relating to the distribution of phenoxy herbicides. .12 Documents relating to the sale of phenoxy herb icides. .13 Documents relating to the use of phenoxy herbicides. .14 Documents relating to the effects of phenoxy herbicides. .15 Documents relating to the effects of poly chlorinated dibenzo--dioxins (PCDDs). .16 Documents relating to the effects of poly chlorinated dibenzo furans (PCDFs). 8557 30-01-15 -psg; 12- Plaintiffs Notice To Defendants to Produce Documents General Corporate Matters 15. Minutes of the Board of Directors or any Committee or Sub-Committee thereof concern ing phenoxy herbicides. 16. Any and all documents concerning phenoxy herbicides prepared by or submitted to or received by the Board of Directors or any committee or sub-committee or any individual director. 17. Any and all documents concerning public positions taken by the corporate defendants with reference to phenoxy herbicides or polychlorinated dibenzo--dioxins (PCDDs) and polychlorinated dibenzo furans (PCDFs). 18. Any and all documents concerning Symposia, Colloquia or other meetings at which phenoxy herbicides were discussed or considered and in which the company participated, directly or indirectly. 19. Financial documents concerning phenoxy herbicides including, but not limited to, cost analysis and cost-effect iveness stud ies. General Corporate Operations; government, generally uUU 80-01-15 -page 13- Plaintiffs Notice To Defendants to Produce Documents 20. Any and all documents which directly or Indirectly refer or relate to any documents that this defendant Is or has been required to maintain or file with any local, state, or federal government authority with respect to phenoxy herbicides. 21. Any and all documents relating to United States Food and Drug Administration (FDA) action concerning phenoxy herbicides, polychlorinated dibenzo-p-dioxins (PCDDs), and/or polychlorinated dibenzo furans (PCDFs). 22. Any and all documents relating to United States Department of Agriculture (USDA) action concerning phenoxy herbicides, polychlorinated dibenzo-p-dioxins (PCDDs), and/or polychlorinated dibenzo furans (PCDFs). 2.3. Any and all documents relating to United States Environmental Protection Agency (EPA) action concerning phenoxy herbicides, polychlorinated dibenzo-p-dioxins (PCDDs), and/or polychlorinated dibenzo furans (PCDFs). 24. Any and all documents relating to United States Department of the Interior (USDI) action concerning phenoxy herbicides, polychlorinated dibenzo--dioxins (PCDDs), and/or polychlorinated dibenzo furans (PCDFs). 25. Any and all documents relating to United States Department of Commerce action concerning phenoxy herbicides, 8559 30-01-15 -page 14- Plaintiffs Notice To Defendants to Produce Documents polychlorinated dibenzo--dioxins (PCDDs), and/or polychlorinated dibenzo furans (PCDFs). 26. Any and all documents relating to United States Department of Defense action concerning phenoxy herbicides, poly chlorinated dibenzo--dioxins (PCDDs), and/or polychlorinated di benzo furans (PCDFs). 27. Any and all documents relating to United States Department of State action concerning phenoxy herbicides, poly chlorinated dibenzo--dioxins (PCDDs), and/or polychlorinated di benzo furans (PCDFs). 20. Any and all documents relating to United States Congressional action concerning phenoxy herbicides, polychlori nated dibenzo--dioxins (PCDDs), and/or polychlorinated dibenzo furans (PCDFs). General Corporate Operations; government, Southeast Asia 29. Any and all documents received by the corporate defen dants from the USA concerning or referring to phenoxy herbicides, "Agent Orange", polychlorinated dibenzo--dioxins (PCDDs), or polychlorinated dibenzo furans (PCDFs). 30. Any and all documents containing specifications of 8560 30-01-15 . -page 15- Plaintiffs Notice To Defendants to Produce Documents phenoxy herbicides for use by the government. 31. Any and all documents concerning the purchase of phenoxy herbicides by the government. 32. Any and all documents concerning "Agent Orange," "Agent White," "Agent Purple," or any other mixture of phenoxy herbicides used In Southeast Asia. 33. Any and all documents Indicating teh dates phenoxy herbicides were manufactured, formulated, advertised, marketed, promoted and sold for use In Southeast Asia, together with the amounts produced and distributed for such use. General Corporate Operations; phenoxy herbicides 34. Any and all documents concerning phenoxy herbicides Indicating the differences, If any, In the formulation, manufacture, production, advertising, promotion, marketing, sale, and use of the several phenoxy herbicides manufactured and marketed by each individual corporate defendant and those manu factured, formulated, advertised, marketed, promoted and sold by the other corporate defendants. '561 80-01-15 -page 16- Plaintiffs Notice To Defendants to Produce Documents .35. Any and all documents relating to the sale or purchase of any Ingredients, compounds or other materials utilized in the manufacture, formulation, production, advertising, promotion, marketing and sale of phenoxy herbicides. 36. Any and all documents concerning programs for training employees, Including management personnel, In the manufacture, formulation, production, advertising, promotion, marketing, distribution and sale of phenoxy herbicides. 37. Any and all documents describing emergency plans and procedures in effect at each and every plant manufacturing phenoxy herbicides or any of the materials, ingredients or compounds involved in such manufacture. 33. Any and all documents concerning safety at each and every plant manufacturing phenoxy herbicides or any of the materials, ingredients or compounds involved in such manufacture. 39. Any and all documents concerning inspections of any of the processes or procedures involved in the manufacture, production, and distribution of phenoxy herbicides. 40. Any and all documents concerning the presence of poly chlorinated dibenzo--dioxins (PCDDs) or polychlorinated dibenzo furans (PCDFs) in any of the products manufactured, formulated, advertised, marketed, promoted and sold by the company. 80-01-15 -page 17- Plaintiffs Notice To Defendants to Produce Documents 41. Any and all documents describing the practices and procedures of the company for dealing with the presence of poly chlorinated dibenzo-p-dioxins (PCDDs) or polychlorinated dibenzo furans (PCDFs) in any of the products manufactured, formulated, advertised, marketed, promoted and sold by the company or in any of the products obtained by the company for the purpose of manufacture, formulation or production of phenoxy herbicides. 42. Any and all documents containing instructions, directions, suggestions, indications, and/or contra-indications relative to the use of phenoxy herbicides. Effects of Phenoxy Herbicides 43. Any and all documents in possession of the corporate defendants, concerning or referring to phenoxy herbicides, poly chlorinated dibenzo-o-dioxins (PCDDs), or polychlorinated dibenzo furans (PCDFs) in food or in the environment. 44. Any and all documents relating to research, analyses, tests, studies and/or experiments, together with any recommendations based or. the results of such research, analyses, tests, studies and/or experiments, concerning phenoxy herbicides, polychlorinated dibenzo--dioxins (PCDDs), and/or polychlorinated dibenzo furans (PCDFs). 8563 80-01-15 -page 18- P.laintiffs Notice To Defendants to Produce Documents 45. Any and all documents relating to any private organizations, foundations, or other persons which have conducted any studies, experiments, evaluations, or analyses either independently or by and on behalf of this defendant or known to this defendant to have been conducted by or on behalf of any of the other corporate defendants, and concerning the effects, if any, of phenoxy herbicides, polychlorinated d ibenzo-jo-d iox ins (PCDDs) and/or polychlorinated dibenzo furans (PCDFs). 45. Any and all documents based on such studies, experiments, evaluations, or analyses, identifying actions, if any, taken in respect thereto by this defendant or known by this defendant to have been taken by other defendants. 47. Any and all documents concerning exposure of employees of the corporate defendants to phenoxy herbicides, or any of the other chemicals involved in the manufacture of phenoxy herbicides. 43. Any and all medical records of employees, including executive and supervisory personnel exposed to phenoxy herbicides or any chemical compound involved in the manufacture, formulation, and production of phenoxy herbicides, that corporate defendants maintain in connection with their employment. 49. Any studies conducted by this defendant or known by this defendant to have been conducted by any of the other defendants 8564 30-01-15 -page 19- Plaintiffs Notice To Defendants to Produce Documents or by anyone or by any independent organization retained by this defendant or known by this defendant to have been retained by other defendants with respect to the effects, if any, upon the employees of this defendant or the employees of other defendants known to this defendant or their spouses and children who were in any manner, shape, or form associated with or exposed to the manufacture, production, and shipment of phenoxy herbicides. 50. Any and all documents concerning medical examinations conducted by the corporate defendants of each and every one of their employees concerning any claimed symptoms allegedly due to possible exposure to phenoxy herbicides or any of the other chemicals involved in the manufacture of phenoxy herbicides. 51. A n y and all documents concerning "Ranch Hand" veterans, inhabitants of Nitro, West Virginia, or inhabitants of Seveso, Italy. Incidents 52. Any and all documents which directly or indirectly refer or relate to all known or reported, verified or non-verified, corrected or non-corrected, malfunctions, failures, incidents, and/or non-conformances to specifications of any and all devices, systems, sub-systems, components, or ingredients, involved in the formulation, manufacture, or production of phenoxy herbicides. 8565 30-01-15 -page 20- Plaintiffs Notice To Defendants to Produce Documents 53. Any and all documents which relate or refer, directly or indirectly, to transients, incidents, accidents, or other abnormalities in operation that occurred at any plants owned directly or indirectly by the company or any of its subsidiaries involed in the formulation, manufacture, and production of phenoxy herbicides or any of the intermediate chemicals involved in the manufacture of phenoxy herbicides from 1945 to date. 54. Any and all documents relating to accidents in the manufacturing, formulation, production and distribution of phenoxy herbicides including, but not limited to, documents concerning the results of any inquiry made by teh company or known to have been made by any of the other corporate defendants or any inquiry by any public or private agency relative to such accident or accidents. Claims 55. Any and all documents relating to complaints concerning phenoxy herbicides made by employees of the corporate defendant including management and executive personnel. 56. Any and all documents from any foreign subsidiary of this defendant including but not limited to licensees, franchisees, and distributors concerning complaints of those engaged in the manufacture, formulation, advertising, promotion, 80-01-15 -page 21- Plaintiffs Notice To Defendants to Produce Documents marketing, sale and use of phenoxy herbicides. 57. Any and all documents which refer or relate, directly or indirectly, to possible or actual claims regarding phenoxy herbicides filed against this defendant in or before any local, state, or federal court, agency, board, or any other entity established to hear such claim exclusive of the claims involved in th is lawsu it. 53. Any and all documents concerning the investigation of claims of damage associated with the use of phenoxy herbicides near Globe, Arizona. DATED: Patchogue, New York, 15 January 1930 Victor John Yannacone, jr. YANNACONE & ASSOCIATES Plaintiffs Attorneys P.O. Address Post Office Drawer #109 Patchogue, New York 11772 (area code 516) 654-2299 TO: All Counsel on Service List 8567 80-01-15 -oage 22- Plaintiff s Notice To Defendants to Produce Documents c Leonard L. Rivkin, Esq. RIVKIN, LEFF & SHERMAN Attorneys for Defendant THE DOW CHEMICAL COMPANY 100 Garden City Plaza Garden City, New York 11530 Wendell B. Alcorn, Jr., Esq. CADWALADER, WICKERSHAM & TAFT Attorneys for Defendant DIAMOND SHAMROCK CORPORATION One Wall Street New York, New York 10005 William Krohley, Esq. Bud Holman, Esq. Kelly, Drye & Warren Attorneys for Defendant HERCULES, INCORPORATED 350 Park Avenue New York, New York 10022 Morton B. Silverman, Esq. CLARK, GAGLIARDI & MILLER Attorneys for Defendant NORTH AMERICAN PHILIPS CORP. The Inns of Court 99 Court Street White Plains, New York 10601 Ronald S. Daniels, Esq. TOWNLEY & UPDIKE Attorneys for Defenants MONSANTO Co. Chrysler Building 405 Lexington Avenue New York, New York 10017 c 8568 Leonard L. Rivkin, Esq. RIVKIN, LEFF & SHERMAN Attorneys for Defendant THE DOW CHEMICAL COMPANY 100 Garden City Plaza Garden City, New York 11530 Wendell B. Alcorn, Jr., Esq. CADWALADER, WICKERSHAM & TAFT Attorneys for Defendant DIAMOND SHAMROCK CORPORATION One Wall Street New York, New York 10005 William Krohley, Esq. Bud Holman, Esq. Kelly, Drye & Warren Attorneys for Defendant HERCULES, INCORPORATED 350 Park Avenue New York, New York 10022 Morton B. Silverman, Esq. CLARK, GAGLIARDI & MILLER Attorneys for Defendant NORTH AMERICAN PHILIPS CORP. The Inns of Court 99 Court Street White Plains, New York 10601 Ronald S. Daniels, Esq. TOWNLEY & UPDIKE Attorneys for Defenants MONSANTO Co. Chrysler Building 405 Lexington Avenue New York, New York 10017 c 8569 AFFIDA VT'!' PF ,cFPT-rICi" BY 'ijJt. xti STATE OF NEW YORK COUNTY OF SUFFOLK SB: JOAN CACACE, being duly sworn, deposes and says that deponent is not a party to the action, is over 18 years of ace and resides at Coram, New York. That on the 16th day of January, 1980 deponent served the within PLAINTIFF'S NOTICF TO CORPORATE DEFENDANTS TO PRODUCE DOCUMENTS upon the following attorneys in this action at the addresses desicnatcd by said attorneys for that purpose by depositing a true cony of same enclosed in a postpaid properly addressed wrapper in an official depository under the exclusive care and custody of the United States Post Office Department within the State of Mew York: BUD HOLMAN, ESQ. WILLIAM KROHLEY, ESQ. Kelly, Drye & Warren 350 Park Avenue New York, New York 10022 RONALD S. DANIELS, ESQ. TOWNLEY & UPDIKE 405 Lexington Avenue New York, New York 10017 WENDELL B. ALCORN, JR., ESQ. Cadwalader, Wickersham & Taft One Wall Street New York, New York 10005 MORTON B. SILVERMAN, ESQ. Clark, Gagliardi & Miller The Inns of Court 99 Court Street White Plains, New York 10601 LEONARD L. RIVRIN, ESQ. Rivkin, Leff & Sherman 100 Garden City Plaza Garden City, New York 11530 WILLIAM H. SANDF.PS, ESQ. WILLIAM A. LYNCH, ESQ. PAUL G. LANE, ESQ. BLACKWELL, SANDERS, MATKENY, 6 LOMBARDI Five Crown Center 2480 Pershing Road Kansas, Missouri 64108 WEA BAKER & MC KENZIE Suite 2800 Prudential Plaza Chicago, Illinois 60603 MARSHALL A. BERNSTEIN, ESQ. Bernstein, Bernstein & Harrison 1521 Locust Street Philadelphia, Pa. 19102 8570 MELVIN BLOCK, ESQ. 16 Court Street Brooklyn, New York 11241 DAVID JAROSLAWICZ, ESQ . 2 Lafayette Street New York, New York 10007 Sworn to before me this 16th day of January, 1980 CNKoO,rTMTnmAQ-iR.us,,YcaLiloiUNfPniKUeodE.KBxLAi5pnI2,iCNr-S.m4fuS6fCMf6tol.0lafLk2,rE0zoCNh6foT3NuOn0ef,wv York 19AOJ' 8571 {* i f UNITED STATES DISTRICT COURT EASTERN DISTRICT of NEW YORK -------------- - -X x n re "AGENT ORANGE" Product Liability Litigation MDL No. 381 (All Cases) x PLAINTIFFS' NOTICE TO CORPORATE DEFENDANTS TO ADMIT OR DENY CERTAIN FACTS k" I a-- IN CLERK'S OFFICE U.S.DISTRICTCOURT E.D.N.Y. * mzi.w TIME A.M.. pM Patchogue, New York 11772 (area code 516) 654-2299 8572 80-01-31 -page 1- PLAINTIFFS ' Notice to Admit v. Corporate Defendants PLAINTIFFS' NOTICE TO CORPORATE DEFENDANTS TO ADMIT OR DENY CERTAIN FACTS PLEASE TAKE NOTICE that the plaintiff veterans and their families demand that CORPORATE DEFENDANTS , by their attorneys, or the appropriate officer, director or other employee of said corporate defendant admit the following facts, or absolutely deny them, or in the alternative, provide such explanation as is necessary to clearly convey the accurate substance of each such allegation in a fashion that said defendants can admit as true. 1. Upon information and belief, the phenoxy herbicides such as 2,4-dichloro phenoxyacetic acid (2,4-D) and 2,4,5-trichloro phenoxyacetic acid (2,4,5-T), in particular their salts and esters were manufactured, formulated, advertised, promoted, marketed and sold by the corporate defendants individually and/or collectively, jointly and/or at certain times severally, alone or in concert with others, since the mid-1940s shortly after the end of World War I I . 2. That in the course of manufacturing phenoxy herbicides such as the 2,4,5-trichlorophenoxy aliphatics, pentachlorophenol (PCP) and its salts, several chlorinated dioxins can be formed as intermediates or by-products of the reactions. 3. That the extent of chlorination of the dioxins produced during the manufacture of phenoxy herbicides depends on the particular chlorophenols involved in the reaction. 8573 4. That under particular conditions of temperature and 80-01-31 -page 2- PLAINTIFFS' Notice to Admit v. Corporate Defendants pressure during the synthesis and commercial manufacture of phenoxy herbicides such as the 2,4,5-trichlorophenoxy aliphatics, pentachlorophenol (PCP) and its salts, polychlorinated dibenzo-dioxins (PCDDs) and polychlorinated dibenzo furans (PCDFs) can be produced and, unless destroyed or otherwise removed from the commercial product, can contaminate commercial products such as the 2,4,5-trichlorophenoxy aliphatics, pentachlorophenol (PCP) and its salts. 5. That during 1970, the Surgeon General of the United States reported that the use of 2,4,5-T might be hazardous to human health. 6. That during 1970, the United States Secretary of Health, Education and Welfare and the United States Secretary of Agriculture issued a joint order calling for an immediate cessation of all uses of 2,4,5-T on or around lakes, ponds, and ditch banks and of all uses of liquid formulations around homes and recreation areas. 7. That another order was issued by these two departments on 1 May 1970 which cancelled all uses of granular formulations of 2.4.5- T around homes, recreation areas, etc. and all uses of 2.4.5- T on crops intended for human consumption. 8. That use of 2,4,5-T was banned in Italy in 1970. 8574 80-01-31 -page 3- PLAINTIFFS' Notice to Admit v. Corporate Defendants 9. That the use of 2,4,5-T was banned in the Netherlands and in Sweden since 1970. 10. That through the efforts of the corporate defendants individually and/or collectively, jointly and/or severally, independently and/or in concert with each other and others, registration of phenoxy herbicides such as the 2,4,5-trichlorophenoxy aliphatics was not suspended for use on range and pasture lands, non-agricultural lands, or in weed and brush control programs on communications and highway rights-of-way. 11. That phenoxy herbicides were introduced into the armed conflict in Vietnam in 1962. 12. That phenoxy herbicides including 2,4,5-T, manufactured, formulated, advertised, marketed, promoted and sold by the corporate defendants and known to said corporate defendants to be contaminated with polychlorinated dibenzo-p-d.ioxins (PCDDs) and/or or polychlorinated dibenzo furans (PCDFs) were aerially disseminated over South Vietnam from January 1962 through February 1971. 13. That American personnel were exposed to phenoxy herbi cides such as the 2,4,5-trichlorophenoxy aliphatics, manufac tured, formulated, advertised, marketed, promoted and sold by the corporate defendants and known by said corporate defendants to be contaminated with polychlorinated dibenzo-p-dioxins (PCDDs) 8575 80-01-31 -page 4- PLAINTIFFS' Notice to Admit v. Corporate Defendants and/or polychlorinated dibenzo furans (PCDFs). 14. That more than 90% of all the 2,4,5-T used in Vietnam was contained in a formulation designated "Herbicide Orange." 15. That the remaining 2,4,5-T used in Vietnam was contained in formulations designated "Herbicide Green," "Herbicide Pink," and "Herbicide Purple." 16. That the Department of Defense suspended the use of "Herbicide Orange" after the civilian agencies of government announced the effort to suspend certain uses of the phenoxy herbicide 2,4,5-T. 17. That in 1971, the Department of Defense directed that the "Herbicide Orange" in South Vietnam be returned to the United States and that the entire stock be disposed of in an environmentally safe and efficient manner. 18. That phenoxy herbicides such as the 2,4,5-trichlorophenoxy aliphatics, contaminated with polychlorinated dibenzo-_gdioxins (PCDDs) and/or polychlorinated dibenzo furans (PCDFs) have been and still are manufactured, formulated, advertised, promoted, marketed and sold by the corporate defendants for general consumer use throughout the United States and in foreign countr ies . 8576 80-01-31 -page 5- PLAINTIFFS' Notice to Admit v. Corporate Defendants 19. Chlorodioxins can be formed in a two-step condensation reaction from ortho-substitued chlorophenoxy radicals or anions. 20. One route of formation of chlorodioxins involves strong oxidizing conditions such as the reaction of chlorine with pentachlorophenol (PCP) at elevated temperature. 21. Another route involves the condensation of alkali metal salts of chlorinated phenols which occurs spontaneously when these metal salts are heated to temperatures above 300 degrees C., a strongly exothermic reaction which procedes to completion in a very narrow temperture range once initiated. 22. That polychlorinated dibenzo-p-dioxins (PCDDs)and or polychlorinated dibenzo furans (PCDFs) can be formed on pyrolysis of such compounds as 2,4,5-trichlorophenoxy acetic acid (2,4,5-T). 8577 80-01-31 -page 6- PLAINTIFFS' Notice to Admit v. Corporate Defendants 23. That human exposure to 2,3,7,8-tetr achloro dibenzo pdioxin (TCDD or "Dioxin") has occurred when polychlorinated dibenzo-p-dioxins (PCDDs) were formed during the production of certain compounds such as the herbicide 2,4,5-trichlorophenoxacetic acid (2,4,5-T), the fungicide pentachlorophenol, and the germicide hexachlorophene. 24. That polychlorinated dibenzo-p-dioxins (PCDDs) which occur as impurities and/or contaminants associated with these commercial products result most often from treatment of chlori nated benzenes at elevated temperature and pressure under alka line conditions. 25. That some of the 2,4,5-T produced prior to 1965 was contaminated with 30 mg/kg or more of 2,3,7,8-tetrachloro dibenzo p-dioxin (TCDD or "Dioxin"). 26. That techniques are available for producing 2,4,5-T with a TCDD or "Dioxin" content below 0.02 mg/kg. 27. That 2,3,7,8-tetrachloro dibenzo p-dioxin (TCDD or "Dioxin") is capable of bioaccumulation (being taken up by a living organism and retained), and can enter the human body from several contaminated elements of a food chain, including water. 28. That 2,3,7,8-tetrachloro dibenzo p-dioxin (TCDD or "Dioxin") is one of the most physiologically active low molecular 80-01-31 -page 7- PLAINTIFFS' Notice to Admit v. Corporate Defendants 8578 weight toxins and teratogens known. 29. That 2,3,7,8-tetrachloro dibenzo -diox.in (TCDD or "Dioxin") is a "cellular poison". 30. That the pathologic effects produced by the toxic isomers of polychlorinated dibenzo--dioxins (PCDDs) and poly chlorinated dibenzo furans (PCDFs) vary quantitatively and qualitatively among different species. 31. That 2,3,7,8-tetrachloro dibenzo p-diox.in (TCDD .ir "Dioxin") and trichlorodibenzofuran were isolated from the contaminants formed in 2.4.5-trichlorophenol production and were demonstrated to be strongly acnegenic when applied to rabbit ears . 32. That within a single species the toxic effects of poly chlorinated dibenzo--dioxins (PCDDs) and/or polychlorinated dibenzo furans (PCDFs) are similar for a given species, differing only in the intensity of the toxic effect produced by a given isomer. 33. That chloracne or acneform dermatitis characterized by comedones, keratic cysts, pustules, papules, and abscesses, is a condition often associated with and characteristic of human exposure to polychlorinated dibenzo--dioxins (PCDDs) and squamous metaplasia and keratinization of the sebaceous glands and hair follicles have been observed in the skin of a number of 80-01-31 -page 8- PLAINTIFFS' Notice to Admit v. Corporate Defendants 8579 animal species following exposure to 2,3,7,8-tetrachloro dibenzo -dioxin (TCDD or "Dioxin"). 34. That clinical symptoms of chloracne may appear weeks or months after the initial exposure to polychlorinated dibenzo-dioxins (PCDDs) or polychlorinated dibenzo furans (PCDFs). 35. That by means of the "rabbit ear" test, the acnegenic potency of 2,3,7.8-tetrachloro dibenzo p-dioxin (TCDD or "Dioxin") was confirmed in 1962. 36. That in 1957, 2,3,7,8-tetrachloro dibenzo -dioxin (TCDD or "Dioxin") was identified as the agent responsible for causing occupational cloracne in employees at factories producing chlorophenol. 37. That in 1971 polychlorinated dibenzo--dioxins (PCDDs) were implicated as the cause of chloracne in a plant producing 2,4,5-T. 38. That a condition characterized by hydropericardium, ascites, subcutaneous edema, liver necrosis and death was described following accidental administration of toxic fats in the feed of broiler chickens. 39. That the toxic material in the toxic fats in the feed of broiler chickens occurred as a contaminant of commercial oleic 80-01-31 -page 9- PLAINTIFFS' Notice to Admit v. Corporate Defendants 8580 J 9 and stearic acids produced from inedible tallow recovered from animal hides upon which trichlorophenols and pentachlorophenols had been used in the curing process. 40. That the chicken edema causative was named "toxic fat" and more specificially "chick edema factor" until it was finally identified by X-ray crystallography as 1,2,3,7,8,9-hexachloro dibenzo p-dioxin. 2,3,7,8-tetrachloro dibenzo -dioxin (TCDD or "Dioxin"), 2,3,7,8-hexachloro dibenzo -dioxin, and 2,3,7,8-octachloro dibenzo -dioxin also have been identified in several com mercial fatty acids. 41. That 2,3,7,8-tetrachloro dibenzo -dioxin (TCDD or "Dioxin") is metabolically stable for a time in mammalian systems, and acts upon the endoplasmic reticulum. 42. That among the effects associated with exposure to 2.3.7.8- tetrachloro dibenzo -dioxin (TCDD or "Dioxin") is an increase in the cellular smooth endoplasmic reticulum contents of hepatic and renal cells. 43. That 2,3,7,8-tetrachloro dibenzo -dioxin (TCDD or "Dioxin") and other halogenated dibenzo-p-dioxins and dibenzo furans stimulate a number of enzyme systems. 44. That among the other toxic effects attributable to 2.3.7.8- tetrachloro dibenzo -dioxin (TCDD or "Dioxin") 80-01-31 -page 10 PLAINTIFFS' Notice to Admit v. Corporate Defendants identified in a number of different animal species are to be found : 44.1 44.2 44.3 44.4 44.5 44.6 44.7 44.8 44.9 44.10 alopecia; hepatic cell necrosis, cirrhosis; hepatic porphyrin accumulation; hypoplasia of lymphoid tissues (with particular involvment of the cortical cells of the thymus resulting in suppression of cell-mediated immunity and reduction of host defenses); hyperplasia of the lymph tissue and bone marrow; hematological changes including lymphopenia, thrombocytopenia, anemia, pancytopenia, leukopenia, hypoproteinemia, and increased suscep tibility to infection concomitant with the sup pression of cell-mediated immunity; intestinal hemorrhage; adrenal hemorrhage; hypoplasia of bone marrow and lymph nodes; cellular effects including hypertrophy, hyper plasia and metaplasia in the bronchial tree, bile ducts, pancreatic ducts, salivary-gland ducts and palpebral conjunctivae; gastric hyperplasia and rulceration, hypertrophic gastritis; renal pelvis hyperplasia; ureter and urinary bladder hyperplasia ; testicular atrophy, necrosis and abnormal spermatocyte development. 45. That general debilitation and wasting is associated with exposure to a lethal dose of polychlorinated dibenzo- -dioxins (PCDDS) or polychlorinated dibenzo furans (PCDFS) in a number of animal species which exhibit a chronic and progressive weight loss with parallel mobilization of peripheral fat, increased serum triglyceride levels, and development of a fatty liver; atrophy, necrosis and abnormal spermatocyte development. 46. That the embryotoxic, fetotoxic and teratogenic effects of the toxic synthetic organic chemical 2,3,7,8-tetrachloro d i benzo jD-dioxin (TCDD or "Dioxin") observed in certain animal 80-01-31 -page 11- PLAINTIFFS' Notice to Admit v. Corporate Defendants 8582 species include: 46.1 cleft palate; 46.2 hemorrhages; 46.3 edema; 46.4 fetal kidney abnormalities which may progress into hydronephrosis during the postnatal period 46.5 hydrocephalus; 46.6 lack of eyelid formation (open eye); 46.7 clubfoot; 46.8 increased prenatal mortality; 46.9 interference with lymphatic system development; 46.10 skeletal abnormalies; 46.11 increased fetal enzyme activity. 47. That the mutagenic and cytogenic effects of the toxic synthetic organic chemical 2,3,7,8-tetrachloro dibenzo -dioxin (TCDD or "Dioxin") include: 47.1 47.2 47.3 47.4 increased incidence of reverse mutuations in Escherichia coli and Salmonella typh.imurlum; increased reversion frequency to streptomycin independence in Escherichia coli Sd-4; induction of frameshift mutations in Salmonella typh.imur lum, strain TA153 2, but not base substitutions in strain TA1530; inhibition of mitosis and chromosomal abnormalities (dicentric bridges and chromatin fusion with formation of multimuclei or a single large nucleus) were observed in endosperm cells of the African blood lily (Haemanthus Kather .inae Baker). 48. That exposure to 2,3,7,8-tetrachloro dibenzo -dioxin (TCDD or "Dioxin") causes an increased incidence of neoplasms in certain animal species. 49. That the carcinogenic and tumorigenic effects of 2,3,7,8-tetrachloro dibenzo -dioxin (TCDD or "Dioxin") include: 49.1 49.2 49.3 49.4 49.5 neoplastic nodules of the liver, cholangiocarcinomas, hepatocellular carcinoma; carcinoma of the ear duct; carcinoma of the kidney; adenoma of the adrenal cortex; metasticizing retroperitoneal histiocytomas; 80-01-31 -page 12- PLAINTIFFS' Notice to Admit v. Corporate Defendants 8583 49.6 hyperplasia of the epithelium of the lung, squamous cell carcinoma of the lung; 49.7 squamous cell carcinoma of the hard palate/nasal turbinates; 49.8 squamous cell carcinoma of the tongue; 49.9 altered lymphopoiesis; 49.10 epithelial changes including hypertrophy, hyperplasia, and mataplasia. Dated: Post Office Drawer #109 Patchogue, New York 11772 (area code 516) 654-2299 80-01-31 -page 13- PLAINTIFFS' Notice to Admit v Corporate Defendants AFFIDAVIT of SERVICE by MAIL STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS* Linda C. Harrison being duly sworn deposes and says: that deponent is over 21 years of age and a m em ber of the office staff of YANNACONE & YANNA.CONE; that as a m em ber of such office staff, on the 3Lst; . day of . .J^mjaj-y, JL9.80................................................................. she served the within uPploanintiffs' Notice to Corporate Defendants to Admit or Deny Certair Facts See Attached Sheet by depositing a true copy of the sam e, properly enclosed in a post paid wrapper in the P ost Office maintained and exclusively controlled by to the United States said attorneys at Government the address sattatPedat,chtohgaut eb, eiNngewthYeorakd,drdeisrsecwteitdhin the state designated by them for service upon the preceding papers in this action. Sworn to before me this 31st day of January, 1980. 8585 Leonard L. Rivkin, Esq. RIVKIN, LEFF & SHERMAN Attorneys for Defendant THE DOW CHEMICAL COMPANY 100 Garden City Plaza Garden City, New York 11530 Wendell B. Alcorn, Jr., Esq. CADWALADER, WICKERSHAM & TAFT Attorneys for Defendant DIAMOND SHAMROCK CORPORATION One Wall STreet New York, New York 10005 William Krohley, Esq. Bud Holman, Esq. KELLY, DRYE & WARREN Attorneys for Defendant HERCULES, INCORPORATED 350 Park Avenue New York, New York 10022 Morton B. Silverman, Esq. CLARK, GAGLIARDI & MILLER Attorneys for Defendant THOMPSONHAYWARD CHEMICAL COMPANY The Inns of Court 99 Court STreet White Plains, New York 10601 Ronald S. Daniels, Esq. TOWNLEY & UPDIKE Attorneys for Defendant MONSANTO CO. Chrysler Building 405 Lexington Avenue New York, New York 10017 8586 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK m bc 3<fv x In Re : 79 C 1195 "AGENT ORANGE" PRODUCT LIABILITY LITIGATION X THE DOW CHEMICAL COMPANY, Third-Party Plaintiff, DOW'S FIRST RULE 34 REQUEST FOR THE PRODUCTION OF DOCUMENTS TO THIRDPARTY DEFENDANT, UNITED STATES OF AMERICA -against- THE UNITED STATES OF AMERICA and CERTAIN PAST AND PRESENT OFFICERS AMD OFFICIALS OF THE UNITED STATES DEPARTMENT OF DEFENSE, THE DEPART MENT OF THE ARMY, THE DEPARTMENT h H Lb* IN CLERK'S OFFICE L .S. DISTRICT COURT E.D.N.Y. OF THE AIR FORCE, THE UNITED STATES ARMY, THE UNITED STATES AIR FORCE, k FEB 4 SED ' THE DEPARTMENT OF COMMERCE, THE DEPART MENT OF HEALTH, EDUCATION AND WEL FARE, THE DEPARTMENT OF THE INTERIOR, AND THE VETERANS' ADMINISTRATION, TIME A.M.... P .M ... whose names will be inserted when ascertained, each individually and in his official capacity, Third-Party Defendants. x S 1RS: Pursuant to Rule 34, Federal Rules of Civil Procedure, defendant-third-party plaintiff THE DOW CHEMICAL COMPANY (hereinafter "DOW") requests that third-party defendant THE UNITED STATES OF AMERICA (hereinafter "USA") produce and permit DOW or its representative(s) to inspect and copy the documents described in the schedule annexed hereto in accordance with the definitions and instructions contained therein, at 10 o'clock A.M., at the United States Courthouse for the Eastern District of New York, ass'? -l- j1 Westbury Annex, 90 Ellison Avenue, Westbury, New York, on the 26th day of February, 1980. This Request is a continuing request. If at any time after production of documents in response hereto, and prior to the trial of this action, the USA comes into possession, custody, and/or control of additional documents responsive to any item herein, then the USA shall, within 30 days thereof, and in no event later than 5 days before trial, produce such documents at the offices of RIVKIN, LEFF & SHERMAN, ESQS., attorneys for defendant-third-party plaintiff DOW, or at such other place in Nassau County, New York, as counsel for DOW and the USA may agree, and permit DOW or its representative(s) to inspect and/or copy said documents. Additionally, DOW requests that any document or documents as to which the USA asserts a privilege be produced ,under seal and deposited with the Court, and that an inventory be produced to DOW describing each such document, its content and the privilege(s) asserted. DATED: January 16, 1980 ! Garden City, New York Yours, etc. I| 1 ii TO : ALL PARTIES A Member of the Firm Attorneys for Defendant Third-Partv Plaintiff THE DOW CHEMICAL COMPANY 100 Garden City Plaza Garden City, New York 11530 (516) 746-7500 SCHEDULE DEFINITIONS AND. INSTRUCTIONS (a) "Document" is used herein in the broadest possible sense and means any written or graphic matter of whatever kind or nature, or any other means of preserving thoughts or expression, (including, without limitation, tape recordings and/or transcriptions thereof), and all tangible things from which information can be processed, or transcribed, whether originals, copies or drafts, (including, without limitation, non-identical copies), however produced or reproduced. Note that a document with handwritten or typewritten notes, editing marks, etc. is not and shall not be deemed identical to one without such qualifications additions, or deletions. (b) "USA" means third-party defendant THE UNITED STATES OF AMERICA and its offices, departments, bureaus, agencies, representatives, department heads, agency heads, bureau chiefs, agents, attorneys, employees, or any other person, or persons, acting for, or on behalf of THE UNITED STATES OF AMERICA, under the authority or control of THE UNITED STATES OF AMERICA, or any one, or group of the foregoing. (c) If the attorney-client, or any other privilege is claimed as to any document called for by this request, your response hereto shall state the date of such document, the name and address of each such person who participated in preparing it, the name and address of each person, if -1 - 5 any, who signed it, the name and address of each, person to whom it was directed, circulated or distributed, and, the name and address of each person now in custody, control, or possession of same. (d) For purposes of this Request, "Document" shall also mean all graphic, mechanical, or electronic reproductions, representations, recordings, or compilations of data of any kind, including, but not limited to drawings, charts, graphs, motion picture films, microfilms, microfiles, photograph and tape recordings, video tapes, any transcripts ! or printouts produced therefrom, and all drafts of any of the foregoing. (e) For purposes of this Request, the term "draft" means any earlier, preliminary, preparatory, or tentative version of all, or part of the document, whether or not such draft was superseded by a later draft, and whether or not the terms of the draft are the same as, or different I ! ! j from the terms of the final document. : (f) For purposes of this Request, the term "2,4,5-T" means 2,4,5 - trichlorophenoxyacetic acid. (g) For purposes of this Request, the term "2,4-D" means \ \ 2,4-dichlorophenoxyacetic acid. ! -2 - 8590 DOCUMENTS TO BE; PRODUCED ; GENERAL REQUESTS 1. Any and all documents setting forth, the. amounts supplied and names of manufacturers of phenoxy herbicides intended for use in Vietnam. i 2. Any and all documents concerning or referring to the purchase by the USA of phenoxy herbicides intended for use in Vietnam. 3. Any and all documents received by the USA from any named defendant herein, concerning or referring to phenoxy herbicides, "Agent Orange", 2,4,5-T, 2,4-D or dioxin. j j 4. Any and all documents concerning or referring to testing of phenoxy herbicides done by or on behalf of the USA with i reference to defoliants used in Vietnam. 5. Any and all computer printouts, maps, and map overlays, grids and other documents showing areas wherein defoliants were used in Vietnam, with dates thereof. ! 6. Any and all documents showing location and/or movement of troops, units and/or other bodies of servicemen in Vietnam. 7. Any and all documents consisting of or relating to testing and test results of phenoxy herbicides done by or on behalf of the USA with reference to defoliants used within the I territorial units of THE UNITED STATES OF AMERICA. i ! j!i 8. Any and all documents concerning or relating to the use, development, manufacture and supply of 2,4,5-T used within 1 the territorial units of THE UNITED STATES OF AMERICA. j | Iij 9 . Any and all documents concerning or relating to the creation, duration, purposes, activities and results of project "Ranch Hand". ijlO. Any and all documents located within the U.S. Department j of Agriculture, relating to or concerning the investigation j of the "spray project" near Globe, Arizona. j11. Any and all documents relating to, concerning or referring to the "Symposium On Use of Herbicides in Forestry", held j in 1978, in Washington, D. C. ! i j j J 12. Any and all documents in the possession of the Office of j| the Comptroller General of the USA and/or the General h Accounting Office referring to 2,4,5-T, "Agent Orange or j! dioxin. ! 1 per 91-3- O KJ yi <vr i w y . v w / y h W j i f f K r C f . 13. Any and all documents referring to or concerning the development, use, testing or disposition of "Agent Orange" or phenoxv herbicides at Fort Detrick, Frederick, Maryland. 14. Any and all copies of publication "Army" referring to or concerning defoliants and their use in Vietnam. 15. Any and all documents in the possession of the Surgeon General of the United States Air Force referring to or concerning the use or effects of phenoxy herbicides in Vietnam. 16. Any and all documents in the possession of the Occupational and Environmental Health Laboratories of the United States Air Force (Brooks AFB, Texas), referring to or concerning the use or effects of phenoxy herbicides in Vietnam. 17. Any and all documents referring to or concerning exposure of servicemen to phenoxy herbicides in Vietnam. 18. Any and all documents referring to, consisting of or concerning medical examinations conducted by the USA of each serviceman who contacted the Veterans Administration concern ing any claimed symptom allegedly due to possible exposure to phenoxy herbicides or Agent Orange. 19. Any and all documents received by the USA from servicemen referring to or concerning exposure to phenoxy herbicides or Agent Orange. 20. Any and all documents contained in the "Central Registry," which was incorporated by order of the Administrator of the Veterans Administration, referring to or concerning phenoxy herbicides, 2,4,5-T or Agent Orange. 21. Any and all documents concerning or referring to "ranch hand" veterans, community inhabitants of Nitro, West Virginia or Seveso, Italy. 22. Any and all documents prepared by or received by the "ad hoc Advisory Committee on Agent Orange " (in possession of the Veterans Administration.) 23. Any and all documents prepared by or received by the "Formal Top Level Advisory Committee on Agent Orange." 24. Any and all documents concerning or referring to the preparation or dissemination of FDA (U.S. Food and Drug Administration) by-lines report, "Cytogenetics Effect of 2,3,7,8 tetraclorodibenzp-p-dioxin on Rat Bone Marrow Cells" 25. Any and all documents in possession of the U.S. Food and Drug Administration, Division of Chemistry and Physics, concerning or referring to location of dioxins in the environment. 8592 -4- 26. Any and all documents received by or prepared by the National Institute of Environmental Health Services, or its "sample collection committee," concerning or referring to 2,4,5-T or dioxin. j ! 27. Any and all documents concerning or referring to the location of dioxin in food and the environment authored by Dr. Jean i Pierre Marliac. 28. Any and all documents concerning or referring to grant(s) in aide given to Dr. Mathew Meselson of Harvard University, in the possession of the Environmental Protection Agency. 29. Any and all documents concerning positions taken with reference to dioxin or 2,4,5-T received by or prepared by the "dioxin working group" of the Environmental Protection Agency. ; 30. Any and all documents referring to or concerning the "analytical collaborators meeting" held June 15, 1976 in the possession of the Environmental Protection Agency.) 31. Any and all documents referring to or concerning the storage, dumping, incinceration or disposal of "herbicide orange" or "Agent Orange." -5- 8593 SPECIFIC REQUESTS 32. Document entitled, "Report on 2,4,5-T", prepared by the Panel on Herbicides of the Presidents Science Advisory Committee, C.M. MacLeon, Chairman. i ! ! 33. Document entitled, "The Present Status of Chemical Control of Vegetation in Relation to Military Needs", prepared by , the Institute for Defense Analyses, Department of Defense. i 34. Document entitled "Vegetational Spray Tests in South Vietnam", having identifying DDC #Ad476961. | , 35. Document entitled "Information Manual for Vegetation Control in Southeast Asia", Miscellaneous publication #33, emanating from Ft. Detrick, Frederick, Maryland. ' 36. Final report of the TECOM project #5-CO-213-00-015, U.S. Army Dugway Proving Ground, Dugway, Utah. 37. Document entitled "Vegetational Spray Tests in South Vietnam" by U.S. Army Chemical Corps Biological Laboratories, Ft. Detrick, Frederick, Maryland, 1962. (DDC #AD 476961) 38. Document entitled "Oconus Defoliation Test Program", technics report 1979, Props Department, Biological Sciences Laboratory U.S. Army Biological Center, Ft. Detrick, Frederick, Maryland (1966). ; 39. Document entitled "Defoliation Tests in 1966 at Base Gagetown New Brunswick, Canada. Technical Memorandum 141." Departmen of the Army, Ft. Detrick, Frederick, Maryland, 1968. ; 1 40. Document entitled "OEHL-TR-78-92 (The Toxicology, Environ mental Fate and Human Risk of Herbicide Orange and its j Associated Dioxin)". 41. Document entitled "Use of Herbicides in Southeast Asia, Historical Report", from San Antonio Air Logistics Center, Directorate of Energy Management, Kelly AFB, Texas. j ] 42. .1976 report "Annual Research Progress Report #11" of United States Air Force Academy. 43. Technical report AFTL-TR-75-49, entitled "Field Studies of Wild Life Exposed to TCDD Contaminated Soils", Air Force Laboratories, Eglin AFB, Florida. j j 44. Technical report "ADTC-TR-70-36" from Armament Development and Test Center, Eglin AFB, Florida. 45. Document entitled "Comparison Test of Defoliants" ADTC-TR69-30, Volume 1, Eglin AFB, Florida. 8534 -6- 46. Technical reports "AFATL TR-74-12," United States Air Force Armament Development and Test Center, Eglin AFB, Florida (years 1974 and 1975) . 47. Technical report "USAFA TR-76-18", known as report of the Department of Chemistry and Biological Sciences, USAF Academy, Colorado. 48. "Memorandum", prepared for Assistant Secretary of Defense entitled "Summary of Current Status Project 'ranch hand'", dated 1961, Office of the Secretary of the Department of the Air Force. 49. Document entitled "Defoliants History of Test Area C-52A" emanating from Armament Development and Test Center, Eglin AFB, Florida, December, 1969. 50. Document entitled "The Location of Herbicide Missions and Hickey's Informants in South Vietnam, The Effects of Herbicides in South Vietnam." National Academy of Science, Washington, D. C. 51. Document entitled "Herbicides Used in Southeast Asia." Technical report SAOQ-TR-69-11078. Directorate of Air Force Aerospace Fuels, Kelly AFB, Texas, 1969. 52. Document entitled "Analytical Methodology for Herbicide Orange. Vol. II. Determination of Origin of USAF Stocks." Technical report ARL-75-0110, Aerospace Research Laboratori Wright-Patterson AFB, Ohio, 1975. 53. Document entitled "Response of Tropical and Subtropical Woody Plants to Chemical Treatments", Research Report CR-13-67, Agricultural Research Services, U.S. Department of Agriculture, Washington, D. C., 1968. 54. The final report on "2,4,5-T Scientific Workshop" conducted on March 8-9, 1974. 55. Final report, "EPA-1AG-D6-0054.", prepared by the Environmental Protection Agency. 56. Research report entitled "CR-13-67", of Agricultural Research Services, U.S. Department of Agriculture, 1968. 57. Document entitled "Health Effects of Exposure of Herbicide Orange in South Vietnam Should be Resolved." Prepared by Office of the Comptroller General of the United States, General Accounting Office. 58. Document entitled "Analytical Methodology for Herbicide Orange. Vol. I. Determination of Chemical Composition", technical report ARL-75-0110, Aerospace Research Laboratorie Wright-Patterson AFB, Ohio, 1975. 95UQ K -7- 59. Document entitled "Biological Effectiveness of Stull Bifluid and Orange", technical report AFATL-TR-68-122, Air Force Armament Laborato^, Eglin AFB, Florida, 1968. 60. Document entitled "Comparison Test of Defoliants", technical report ADTC-TR-69-3Q, Vol. I, Armament Development and Test Center, Eglin AFB, Florida, 1969. 61. Document entitled "Fate of 2,3,7,8-tetrachlorodibenzo-p-diox (TCDD) in the Environment: Summary and Decontamination Recommendations", technical report USAFA-TR-76-18, Departmen of Chemistry and Biological Sciences, USAF Academy, Colorado 1976. 62. Document entitled "Studies of the Ecological Impact of Repetitive Aerial Applications of Herbicides on the Ecosysteof Test Area C-52A, Eglin AFB, Florida," technical report AFATL-TR-75142, Air Force Armament Laboratory, Eglin AFB, Florida, 1975. 63. Document entitled "Environmental Protection Technology Serie EPA-600/2-78-086,," 64. Report of the "Advisory Committee on 2,4,5-T" to the Administrator of the Environmental Protection Agency, 1971. 65. Document entitled "CDC#EPI 72-13-2", prepared by the United States Public Health Service, Center for Disease Control, Atlanta, Georgia. 66. Any and all documents utilized in,referring to or concerning the preparation or dissemination of each of the above documents. 8536 8- STATE OF NEW YORK COUNTY OF NASSAU ) ) SS: ) Carol M. Samide, being duly sworn, deposes and says: That deponent is not a party to the action , is o ver 18 y ea r s of age and r e s id e s at 4 2 5 Roundhill Road, East Hills, New York. That on the 11th day of January, 1980 , deponent served the within dow' s First Rule 34 Request for the Production of Documents ItuoponThtihre da-tptoarrnteyys Dbeefleowndasentt,forUthnirteepdr e sSetnattinesg tohfe pAamretriie sc,a.as indicated, at the | addresses shown, said addresses being designated by said attorneys for that j purpose. i ATTORN EY: All Counsel. (See attached list) ;1 I` by depositing a true copy of sam e en closed in a postpaid p roperly ad d ressed wrapper in an officia l d ep ository under the e x clu siv e/ca n e and cy^tody of/i?ie United States Post O ffice Departm ent within the Stare of/N ew Yo| I Sworn to before me this // / < f t 0 T ELEANOR 08THUCS <H^SwS,K^S*l&S5PffSl&SsSa~Xr!*\*^i/ 8597 In Re: "Agent Orange" MDL #381 Listing of Attorneys FOR DEFENDANTS: Schlegel & Trafelet, Ltd. Suite 1313 One North LaSalle Street Chicago, Illinois 60602 Morton B. Silverman, Esq. Clark, Gagliardi & Miller The Inns f Court 99 Court Street White Plains, New York 10601 Wendell B. Alcorn, J r . , Esq. Cadwalader, Wickersham & Taft One Wall Street New York, New York 10005 Ronald S. Daniels, Esq. Townley & Updike 405 Lexington Avenue New York, New York 10017 Bud Holman, Esq. William Krohley, Esq. Kelley, Drye & Warren 350 Park Avenue New York, New York 10022 William H. Sanders, Esq. William A. Lynch, Esq. Paul G. Lane, Esq. Blackwell, Sanders, Matheny, Weary & Lombardi Five Crown Center 2480 Pershing Road Kansas City, Missouri 64108 Baker & McKenzie Suite 2800 Prudential Plaza Chicago, Illinois 60603 John M. Fitzpatrick Dilworth, Paxson, Kalish, Levy & Kauffman 2600 The Fidelity Building Philadelphia, Pennsylvania 1 Joan Bernott, Esq. Department of Justice Safeway Building Room 904D Washington, D. C. 20530 FOR PLAINTIFFS: Victor J. Yannacone, Jr., Esq. Yannacone & Yannacone Post Office Drawer #109 Patchogue, New York 11772 L. Steven Platt, Esq. Sullivan & Associates, Ltd. 10 South LaSalle, Suite 1600 Chicago, Illinois 60603 Hy Mayerson, Esq. Mennonite Church Road and Schuylkill Road (Route 724) Spring City, Pennsylvania 194 David Jaroslawicz, Esq. Two Lafayette Street New York, New York 10007 Jones, Jones & Baldwin Post Office Drawer 1249 Marshall, Texas 75670 Benton Musselwhite, Inc. 3506 Travis Houston, Texas 77002 Melvin Block, Esq. 16 Court Street Brooklyn, New York 11241 Marshall A. Bernstein, Esq. Bernstein, Bernstein & Harrison 1521 Locust Street Philadelphia, Pennsylvania 19 Counsel for Amicus Curiae, The Counsel of Vietnam V e t s : Vietnam Veterans of America 329 Eighth Street, N. E. Washington, D. C. 20002 Copies of all Documents Must Be Sent To: Clerk of th Panel Judicial Panel on Multidistrict Litigation 320 Executive Building 1030 15th Street, N. W. Washington, D. C. 20005 8598 Listing of Attorneys - Page 2 Cyril Hyman, Esq. Assistant United States Attorney Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 8599 In Re: "Agent Orange" MDL #381 Listing of At torneys FOR DEFENDANTS: Schlegel & Trafelet, Ltd. Suite 1313 One North LaSalle Street Chicago, Illinois 60602 Morton B. Silverman, Esq. Clark, Gagliardi & Miller The Inns of Court 99 Court Street White Plains, New York 10601 Wendell B. Alcorn, Jr. , Esq. Cadwalader, Wickersham & Taft One Wall Street New York, New York 10005 Ronald S. Daniels, Esq. Townley & Updike 405 Lexington Avenue New York, New York 10017 Bud Holman, Esq. William Krohley, Esq. Kelley, Drye & Warren 350 Park Avenue New York, New York 10022 William H. Sanders, Esq. William A. Lynch, Esq. Paul G. Lane, Esq. Blackwell, Sanders, Matheny, Weary & Lombardi Five Crown Center 2480 Pershing Road Kansas City, Missouri 64108 Baker & McKenzie Suite 2800 Prudential Plaza Chicago, Illinois 60603 John M. Fitzpatrick Dilworth, Paxson, Kalish, Levy & Kauffman 2600 The Fidelity Building Philadelphia, Pennsylvania 19109 Joan Bernott, Esq. Department of Justice Safeway Building Room 904D Washington, D. C. 20530 FOR PLAINTIFFS: Victor J. Yannacone, Jr., Esq. Yannacone & Yannacone Post Office Drawer #109 Patchogue, New York 11772 L. Steven Platt, Esq. Sullivan & Associates, Ltd. 10 South LaSalle, Suite 1600 Chicago, Illinois 60603 Hy Mayerson, Esq. Mennonite Church Road and Schuylkill Road (Route 724) Spring City, Pennsylvania 194 David Jaroslawicz, Esq. Two Lafayette Street New York, New York 10007 Jones, Jones & Baldwin Post Office Drawer 1249 Marshall, Texas 75670 Benton Musselwhite, Inc. 3506 Travis Houston, Texas 77002 Melvin Block, Esq. 16 Court Street Brooklyn, New York 11241 Marshall A. Bernstein, Esq. Bernstein, Bernstein & Harrison 1521 Locust Street Philadelphia, Pennsylvania 191 Counsel for Amicus Curiae, The Counsel of Vietnam Vets: Vietnam Veterans of America 329 Eighth Street, N. E. Washington, D. C. 20002 Copies of all Documents Must Be Sent To: Clerk of th Panel Judicial Panel on Multidistrict Litigation 320 Executive Building 1030 15th Street, N. W. Washington, D. C. 20005 Listing of Attorneys - Page 2 Cyril Hyman, Esq. Assistant United States Attorney Eastern District of N e w York 225 Cadman Plaza East Brooklyn, New York 11201 8601 TI . > UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------- .------------------------- X In Re MDL No. 381 (All Cases) "AGENT ORANGE" ' S. DINisMtCrLiLcERtKc'ESouOrFDtFICfEn m ^ O T IC E O F M O TIO N Product Liability Litiga SIRS: APR 81980 ^ time a.m7,,x............................ P.M...................... PLEASE TAKE NOTICE, that upon the annexed affidavit of LEONARD L. RIVKIN, sworn to on April 8, 1980, upon the ac companying memorandum of law, and upon all prior proceedings herein, the undersigned will move this Court before the Honor able George C. Pratt, United States Court House, 900 Ellison Avenue, Westbury, New York, on the twenty-fourth day of Ap ril, 1980, at 9:00 a.m., or as soon thereafter as counsel can be heard, for an order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure granting a protective order exempting Dow's proposed Computer Document Retrieval and Litigation Sup port System from discovery. Dated: Garden City, New York April 8, 1980 To : All Counsel Yours, etc., - /) By A Member of the Firm RIVKIN, LEFF & SHERMAN Attorneys for Defendant The Dow Chemical Company 100 Garden City Plaza Garden City, New York 11530 (516) 746-7500 8602 ( 09) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------- X In Re "AGENT ORANGE" Product Liability Litigation X STATE OF NEW YORK COUNTY OF NASSAU ) ) s .s . : ) MDL No. 381 (All Cases) AFFIDAVIT says : LEONARD L. RIVKIN, being duly sworn, deposes and 1. Your deponent is a member of the firm of RIVKIN, LEFF & SHERMAN, attorneys for the defendant and third-party plaintiff THE DOW CHEMICAL COMPANY ("Dow"), and, as such, is familiar with the facts and proceedings had herein. This affidavit is submitted in support of Dow's mo tion which seeks a protective order exempting Dow's proposed Computer Document Retrieval and Litigation Support System ("Litigation Support System") from discovery. 2. The plaintiffs, defendants, and third-party defendants have met on a number of occasions with a view towards effectuating an initial phase of voluntary discovery and production of documents. These meetings have proved fruitful, and Dow has already made some documents available for inspection pursuant to such voluntary agreements. 3. Your deponent has met with his client on a number of occasions and has visited at the offices of his client in Michigan with a view towards establishing some general impressions and knowledge on the number of documents which we will be obligated to review for production in ac cordance with both the Notice of Production heretofore served and agreements previously referred to. Your deponent repre sents to this Court that he has been informed by his client and upon information and belief submits that Dow will be ob ligated to review a minimum of 300,000 documents to an approxi mate maximum of 500,000 documents in an effort to comply with both the agreements and production notices herein before re ferred to. It is further your deponent's belief that the greatest majority of these documents will be produced in ac cordance with said agreements and notice. 4. In order to adequately review, control, and make available for production the aforementioned numbers of documents, your deponent submits that it will be an absolute necessity to have mechanical assistance. As a consequence thereof, your deponent has worked with some Dow associates and has developed a Litigation Support System which will effec tuate, among other things, controls and retrieval capabilities to permit the expeditious production of documents. 2 8604 5. This Litigation Support System was prepared and will be maintained for the exclusive use in the instant action. 6. This Litigation Support System has not as yet been put into effect. 7. No prior request for the relief referred to herein has been made. WHEREFORE, it is respectfully requested that this Court grant Dow's motion for an order protecting from dis covery their Litigation Support System and for such other | and further relief as to this Court seems just and proper. Sworn to before me this LEONARD L. RIVKIN 8605 3 STATE OF NEW YORK COUNTY OF NASSAU ) ) SS: ) Carol M. Samide being duly sworn, deposes and says: That deponent is not a party to the action, is over 18 years of age and resides at East Hills, New York. That on the 8th day of April, 1980 , deponent served the within Notice of Motion, Supporting Affidavit, and Accompanying Memorandum of Law. upon the attorneys below set forth representing the parties, as indicated, at the addresses shown, said addresses being designated by said attorneys for that purpose. ATTORNEY: To all counsel See attached list. by depositing a true copy of same enclp-sed in a postpaid p. addressed wrapper in an official depo-sitbry undey''/the ex care and custody of the United States P6st Office epar within the State of New York. Sworn to before me this Sth^day of April^ 1.98, THERESA M. RANFONE PUBLIC, State of New Yor-. No. 30-4500076 - Nes' au^Ciounttu Commission. Expires Warr.h 0. / OO OtD In Re : "Agent Orange" MDL #381 Listing of Attorneys FOR DEFENDANTS: FOR PLAINTIFFS: Morton B. Silberman, Esq. Clark, Gagliardi & Miller The Inns of Court 99 Court Street White Plains, New York 10601 Wendell B. Alcorn, Jr. , Esq. Cadwalader, Wickersham & Taft One Wall Street New York, New York 10005 John Sabetta, Esq. Townley & Updike 405 Lexington Avenue New York, New York 10017 Bud Holman, Esq. William Krohley, Esq. Kelley, Drye & Warren 350 Park Avenue New York, New York 10022 Victor J. Yannacone, Jr., Esq. Yannacone & Yannacone Post Office Drawer No. 109 Patchogue, New York 11772 Schlegel & Trafelet, Ltd. One North LaSalle Street Suite 1313 Chicago, Illinois 60602 L. Steven Platt, Esq. Daniel C. Sullivan, Esq. Sullivan & Associates, Ltd. Ten South LaSalle Street Suite 1600 Chicago, Illinois 60603 Hy Mayerson, Esq. Mennonite Church Road and Schuylkill Road (Route 724) Spring City, Pennsylvania 19475 William H. Sanders, Esq. William A. Lynch, Esq. Paul G. Lane, Esq. Blackwell, Sanders, Matheny, Weary & Lombardi Five Crown Center 2480 Pershing Road Kansas City, Missouri 64108 Baker & McKenzie Prudential Plaza, Suite 2800 Chicago, Illinois 60603 John M. Fitzpatrick, Esq. Dilworth, Paxson, Kalish, Levy & Kauffman 2600 The Fidelity Building Philadelphia, Pennsylvania 19109 Joan Bernott, Esq. U. S. Department of Justice Safeway Building - Room 904D Washington, D. C. 20530 Cyril Hyman, Esq. Assistant U. S. Attorney Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 David Jaroslawicz, Esq. Two Lafayette Street New York, New York 10007 Newton B. Schwartz, P. C. 609 Fannin Building, Suite 700 Houston, Texas 77002 Benton Musselwhite, Inc. 3506 Travis Houston, Texas 77002 Melvin Block, Esq. 16 Court Street Brooklyn, New York 11241 Marshall A. Bernstein, Esq. Bernstein, Bernstein & Harrison 1521 Locust Street Philadelphia, Pennsylvania 19102 Louis B. Merhige, Esq. 317 Magazine Street New Orleans, Louisiana 70130 Counsel for Amicus Curiae, The Counsel of Vietnam Veterans: Vietnam Veterans of America 329 Eighth Street, N. E. Washington, D. C. 20002 Listing of Attorneys Page 2 Copies of All Documents to: Clerk of the Panel Judicial Panel on Multidistrict Litigation 320 Executive Building 1030 15th Street, N. W. Washington, D. C. 20005 esos Additional Attorneys in Coffey v. Dow, W. D. K y ., C. A. No. 79-495-L(B) Spence, Moriarty & Schuster, Esqs. Attorneys for Plaintiff Post Office Box 554 Jackson, Wyoming 83001 Richard D. Heideman, Esq. Attorney for Plaintiff 835 West Jefferson Street Louisville, Kentucky 40202 Lester, Schwab, Katz & Dwyer, Esqs. Attorneys for Defendant Hoffman-Taft, Inc. 77 Water Street New York, New York Freedman & Koven, Esqs. Attorneys for Defendant Private Brands, Inc. 208 South LaSalle Street Chicago, Illinois 60004 Lewis, Overbeck & Furman, Esqs. Attorneys for Defendant Private Brands, 135 South LaSalle Street Chicago, Illinois 60603 Inc. William T. Thompson Company Thompson Chemical Division 3028 Locust Street St. Louis, Missouri Woodward, Hobson & Fulton, Esqs. Attorneys for Defendant GAF Corporation 101 South Fifth Street Louisville, Kentucky William Guethliun, Esq. Attorney for Defendant Hooker Chemical Company One River Front Plaza Louisville, Kentucky 40202 Coffey v Dow Attorneys List Page 2 O'Connor & Hayes, Esqs. Attorneys for Defendant Ansul Company a/k/a/ Wormald American, Inc. 337 Merrick Road Lynbrook, New York 11563 Arthur, Drye & Kalish, Esqs. Attorneys for Defendant Uniroyal, 1230 Avenue of the Americas New York, New York 10020 Inc. Albert Jones, Esq. United States Attorney Attorney for Colonel James R. Dew 211 U. S. Post Office and Courthouse Building Louisville, Kentucky 40202 Robert R. Miller Stiles and Miller Attorney for Private Brands 550 Stark Building Louisville, Kentucky 40202 8610 FILED UNITED STATES DISTRICT COURT IN CLERK'S OFFICE EASTERN DISTRICT OF NEW YORK . S. DISTRICT COURT E.D. N.Y, In Re "AGENT ORANGE" TIME A.M. P.M. YIDL NO. 381 (All Cases) ORDER Product Liability Litigation x A motion having been made by the defendant, THE DOW CHEMICAL COMPANY, for a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure exempting THE DOW CHEMICAL COMPANY'S proposed Computer Document Retrieval and Litigation Support System from discovery, and said motion having duly come on to be heard before this Court on the 24th day of April 1980, I NOW, upon reading and filing the notice of motion dated j the 8th day of April 1980, the affidavit of LEONARD L. RIVKIN, sworn to the 8th day of April 1980, and after having heard LEONARD L. RIVKIN in support of the motion, and having heard VICTOR J. YANNACONE, JR. on the motion without opposition there to, and no other party having opposed said motion, and upon read ing and filing the letter of consent between the parties dated May 2, 1980, and due deliberation having been had herein, and j iI j upon all the proceedings had herein, it is NOW, on motion of RIVKIN, LEFF & SHERMAN, attorneys for THE DOW CHEMICAL COMPANY, ORDERED, that said motion be and the same is hereby granted and that THE DOW CHEMICAL COMPANY'S Computer Document Retrieval and Litigation Support System is herein and hereby exempt from discovery. 8632 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK In Re X MDL No. 381 (All Cases) "AGENT ORANGE" Product Liability Litigation f il e d .1 nCClP.P X ^ APR 81980 - k IlME A.Mi. P.M. MEMORANDUM OF LAW OF THE DOW CHEMICAL COMPANY IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER R ivkin, L e f f & S h e r m a n At t o r n e y s a n d C o u n s e l l o r s at Law IOO Ga r d e n C ity P laza, Ga r d e n C ity, N;Y.:11530 8611 We s u b m it t h i s m em orandum o n b e h a l f o f d e f e n d a n t T h e Dow Chemical Company ("Dow") in support of Dow's motion for a protective order. Preliminary Statement By the instant motion, Dow respectfully moves this Court, pursuant to Rule 26(c), F ed.R.Civ.P ., for a protec tive order immunizing from discovery Dow's attorneys' proposed Computer Document Retrieval and Litigation Support System (hereinafter "Litigation Support System"). The Litigation Support System is intended to be a valuable legal aid which will permit Dow's attorneys to review all docu ments relating to the present controvery in order to orga nize, collate, index, and, ultimately, determine which documents are required to be produced pursuant to discovery requests made of Dow. Hence, the Litigation Support System will enable Dow's attorneys to review the many thousands of documents involved with greater dispatch, thereby facilitat ing discovery. As a result, all parties to this action, as well as the Court, will benefit from a more expeditious and efficient discovery process. However, for reasons explained below, we will severely prejudice our defense by compiling such a system which might itself be subject to discovery without the safeguard that the requested protective order would provide. For that reason, Dow has approached this Court with a somewhat 8612 1 novel request for relief: a prospective protective order. Such a protective order would be prospective in nature, since Dow'has not yet been ashed to produce any such Litiga tion Support System as part of a discovery request. Indeed, Dow's attorneys have not yet compiled such a system, al though, as discussed below, the preliminary stages of such a compilation have already begun. Nevertheless, by its motion, Dow asks the Court to recognize the important function of the computer within the discovery process, when used to enable a party's attorneys to review and organize documents and otherwise prepare that party's defense. This function takes on an even greater importance in situations such as the present litigation, wherein a party's attorneys will have to review hundreds of thousands of pages of documents. Thus, the protective order requested herein would enable Dow's attorneys to proceed with its plan to construct the Litigation Support System without the threat of severe prejudice to us. Status of Discovery This court is already painfully familiar with the facts of the instant action, and we will therefore refrain from imposing upon the Court with a full statement of those facts.* Instead, we will simply outline the present state *See, e .g ., Dow's Memorandum of Law in Opposition to the Government's Motion to Dismiss. 2 p c 13 o f d is c o v e r y , w h ic h i s p e r t in e n t to th e m o tio n made h e r e in . By its Practice and Procedure Order of May 18, 1979, this Court stayed all discovery, and that stay is presently in effect.* However, the parties to this action have routinely met in order to work out among themselves voluntary document production agreements which hopefully will obviate the need to burden the Court with numerous document production motions, and Dow has in fact already made some documents available for inspection pursuant to such an agreement. See the accompanying affidavit of Leonard L. Rivkin (the "Rivkin Affidavit"), attorney for The Dow Chemical Company, para. 2 As the result of discussions between Dow and its counsel, we estimate that we ultimately will have to review for discovery and inspection from 300,000 to 500,000 documents, and will ultimately produce close to that amount. (These numbers pertain to actual documents and not merely to pages.) Rivkin Affidavit, para. 3 . We have begun the formidable task of screening these documents in order to enter them in the envisioned computer scheme. Thus, Dow's attorneys have already initiated the preliminary steps required to construct the Litigation Support System. Rivkin Affidavit, para. 4 . *See Practice and Procedure Order, para. 7. 3 All parties to this action and the Court will benefit from the Litigation Support System visualized herein. As a result of these benefits, the entire case will proceed in a more efficient and orderly manner, and the Court's time can be put to best advantage by eliminating the need for many discovery requests and rulings. Therefore, we respectfully ask this Court to issue an order protecting our proposed Litigation Support System from discovery by any of the parties to the instant action. 0,0 -3 'rs i a .2 4 POINT I DOW'S PROPOSED LITIGATION SUPPORT SYSTEM IS PROTECTED BY RULE 26(b)(3), FED.R.CIV.P., AS MATERIAL PREPARED FOR LITIGATION Rule 26(b)(3) protects from discovery material pre pared in anticipation of litigation or for trial, and makes such material subject to discovery only upon a showing that the party seeking discovery has substantial need for the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other m e a n s .* We respectfully submit that the proposed Litigation Support System is fully protected by the Rule stated above, as that system would not under any circumstances qualify as an exception to the general non-discoverability status of trial preparation material. The preliminary work that has already begun with respect to the material in question is part of the preparation by Dow's attorneys for the trial of this action. The Litigation Support System itself will be compiled as part of the efforts of Dow's attorneys to prepare Dow's defense and third-party action. Such prepara tion is being carried out by the direction and participation of Dow's defense counsel. *See Burlington Indus, v. Exxon Cor p ., 65 F.R.D. 26, 43 (D.C. M d . 1974). See also Advisory Committee Notes to the 1970 amendment to the discovery Rules, 48 F.R.D. 487, at 501 (1970). 5 8 616 In o rd e r to c irc u m v e n t w hat has been o fte n re fe rre d to as th "qualified" privilege afforded documents prepared in anticipation of trial, one seeking discovery must demon strate that he has substantial need for such material and that he would suffer undue hardship if compelled to obtain the material through other means. Plaintiffs would be hard-pressed to make either showing with respect to the Litigation Support System proposed by Dow's attorneys. It cannot be conceived how the plaintiffs would have a substantial need for such material in order to prepare their case. The system that Dow's attorneys will prepare will, among other things, constitute a listing of all documents in Dow's possession relating to the present controversy. Each entry will contain information that we feel will aid us in identifying documents so that it can be determined if a particular document should be made available pursuant to a discovery request. Thus, the listing described herein will not contain any new or original information, but rather will embody a kind of "shorthand" version of each document. The actual documents themselves in their entirety will be available for discovery and inspection, subject to any privilege involved, pursuant to appropriate production requests made by the plaintiffs. Thus, a showing of sub stantial need cannot be made. Similarly, plaintiffs cannot demonstrate their in ability to obtain the "substantial equivalent" of the system 6 by other means without undue hardship. Plaintiffs can in fact do far better than obtain a mere document listing; they can obtain the actual documents themselves either through voluntary discovery agreements with Dow or through requests for documents made pursuant to Rule 34, Fed.R.Civ.P ., once the Court has lifted the discovery stay. Without such a showing, in addition to demonstrating substantial need, the proposed Litigation Support System would remain exempt from discovery under Rule 26 (b) (3).* We are cognizant, however, of the "undue hardship" ex ception to the protection afforded trial preparation mate rial by Rule 26 (b) (3), and for that reason we come before this Court. We respectfully submit that this exception does not apply to the material in question, and we therefore ask the Court to issue the order requested herein, which will fully and completely protect our trial preparation material, so that we may proceed in the manner we have described. *S e e , e . g ., Home Ins. Co. v. Ballenger Corp., 74 F.R.D. 93 (N.D. Ga. 1977); Arney v. Geo. A. Hormel & C o ., 53 F.R.D. 179 (D.C. Minn. 1971). 7 op 1 v- L. Jl C POINT II DOW'S PROPOSED LITIGATION SUPPORT SYSTEM IS PROTECTED FROM DISCOVERY BY RULE 26(b)(3) BECAUSE IT REFLECTS THE THOUGHT PROCESSES AND OPINIONS OF DOW'S LEGAL COUNSEL In addition to the privilege status afforded materials prepared in preparation for trial by Rule 26(b)(3), the Rule also provides that the court shall protect against disclo sure of the mental impressions, conclu sions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. [Emphasis added.] Such material has become known as "opinion work prod uct," as distinguished from mere work product, or mate rials prepared in anticipation of litigation, discussed above. While work product is afforded protection subject to certain qualifications, the plain words of Rule 26(b)(3), cited in part above, direct the courts to reject any attempt to discover material constituting the attorney's thought processes. The leading authority embodying the rationale behind the Rule that protects such material is Hickman v. Taylor, 329 U.S. 495 (1947). There, the Supreme Court said, in pertinent part: In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the 8519 8 relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. Hickman, supra at 510-511. Thus, while material prepared in anticipation of liti gation or for trial enjoys a qualified privilege, many courts have held that opinion work product is protected by an absolute privilege, and is not subject to discovery under any circumstances. Within the Second Circuit, the Southern District has noted that [t]he only mandatory protection afforded by the Rule [26(b)(3)] appears in its last sentence, which directs the trial court to "protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." 9 H e r b e r t v . L a n d o , 73 F . R . D . 387 ( S . D . N . Y . 1 9 7 7 ) . * The participation of Dow's attorneys in the planning of the Litigation Support System, and, ultimately, in its actual preparation, would qualify such material as opinion work product. Therefore, this Court should afford the material the strict protection of Rule 26(b)(3). Dow's defense counsel has participated in the formulation of the plan for the system, including, among many other things, the *See also Berkey Photo, Inc, v. Eastman Kodak C o . , 74 F.R.D. 613, at 616 (S.D.N.Y. 1977). The notion that such material enjoys total immunity from discovery is not universally held, but, in any event, only extremely unusual circumstances would warrant the disclosure of opinion work product. Se e , e . g ., In re Murphy, 560 F .2d 326 (8th Cir. 1977), where the court said, at 336: It is clear that opinion work product is entitled to substantially greater protection than ordinary work product. Therefore, unlike ordinary work product, opinion work product can not be discov ered upon a showing of substantial need and an inability to secure the substan tial equivalent of the materials by alternate means without undue hardship. See Fed.R.Civ.P. 26(b)(3). In our view, opinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances. See Hickman v. Taylor, supra. Our unwillingness to recognize an absolute immunity for opinion work product stems from the concern that there may be rare situations, yet unencountered by this court, where weighty considerations of public policy and a proper administration of justice would militate against the nondiscovery of an attorney's mental impressions. Absent such a compelling showing, the attorney's opinion work product should remain immune from discovery. 10 8621 selection of subject matter areas and the selection of information to be recorded under each document entry. As such, the Litigation Support System will reflect our "mental impressions, conclusions, opinion, or legal theories" in that the material will indicate the determination by Dow's counsel of which material is pertinent to the action. The assemblage of material will surely reflect the attorneys' perception of "the relevant from the irrelevant facts." Hickman v. Taylor, supra at 511. Such computerized compilations have been held to constitute attorney opinion work product. In In re IBM Peripheral EDP Devices Antitrust Litigation, MDL 163-RM, slip op. (N.D. Cal. Feb. 10, 1975), IBM's counsel had developed "a computerized trial support system which in cludes summaries and analyses of certain of the IBM docu ments requested by plaintiffs in these actions." I d . The plaintiffs moved for an order compelling IBM to describe its computerized trial support system with particularity. The plaintiffs' ultimate intention was to seek an order enti tling them to use the computerized trial support system to identify documents. 8522 ii The court denied the plaintiffs' motion to compel IBM to answer interrogatories with respect to the computer material, and said that neither IBM nor its attorneys would be required in further discovery proceedings to divulge information concerning that material. The findings of the court, enumerated below, are particularly germane with respect to the matter at hand: 1. The computer trial support system developed by IBM's counsel and the material contained therein was prepared solely for the litigation, and it was put in the computerized form so that it could be used in connection with litigation. 2. All documents and other materials referenced by the trial support system of IBM's counsel are available through normal discovery to the plaintiffs. The trial support system in no way hides, destroys or deprives the plaintiffs of access to any evidence whatsoever. 3. The trial support system created by IBM's counsel reflects their mental impressions, theories and thought processes, and the Court is not satis fied that information contained in that system can be segregated from such lawyers' mental impressions and theories. 4. To allow plaintiffs a more detailed description of the trial support system, or to allow plaintiffs to make use thereof, would impinge on the right of IBM's counsel to organize material in the perspective they want to put it in, and to utilize such information in their trial preparation. Plaintiffs have failed to make a sufficient showing of need or urgency to justify such a result. 5. Plaintiffs have failed to show that there are no alternate means available 12 d d n, L- U /C to them to obtain the equivalent informa tion without undue hardship. 6. The Court will not exercise its discre tion to compel disclosure of information from or about the trial support system simply because it would be somewhat more convenient for plaintiffs if the Court did so. In re IBM Peripheral EDP Devices Antitrust Litigation supra. All of the court's findings in the foregoing case are applicable to the Litigation Support System now under development by Dow. As previously stated, the material is being prepared with the participation of Dow's legal counsel. It is being prepared solely for use in the instant action, and will be compiled only so that it can be used in connec tion with the pending suit. Rivkin Affidavit, para. 5 . The documents that will be entered in the Litigation Support System are available to the plaintiffs pursuant to appropriate production demands. As in the case mentioned above, Dow's system "in no way hides, destroys or deprives the plaintiffs of access to any evidence whatsoever." Rather, it would actually decrease the time in which docu ments could be made available to plaintiffs pursuant to either their requests or to voluntary agreements reached between the parties. As previously discussed, the thought processes and mental impressions of Dow's legal counsel will be reflected in the very order and construction of the material itself. Because Dow's attorneys have participated in the design of 8624 13 the Litigation Support System, their mental impressions and theories cannot be segregated from the material. Instead, the system will itself incorporate those theories and impressions. As in the IBM case, discovery of the Litigation Support System would impinge on the right of Dow's counsel "to organize material in the perspective they want to put it in, and to utilize such information in their trial preparation." Such a result would clearly violate the rationale of Rule 26(b)(3), and the holdings of Hickman v. Taylor, supra, and its progeny. Given the foregoing, Dow's proposed Litigation Support System should be afforded the full protection of Rule 26(b)(3), thereby immunizing it from discovery, since it constitutes opinion work product. 8S2 14 POINT III THE COURT SHOULD ISSUE A PROTECTIVE ORDER, PURSUANT TO RULE 26(c), FED.R.CIV.P., TO PREVENT THE UNDUE BURDEN TO DOW THAT WOULD RESULT FROM DISCOVERY OF ITS LITIGATION SUPPORT ______________ SYSTEM__________________ Rule 26(c) authorizes the courts to issue orders limiting discovery "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . ." Dow respectfully submits that such an order is warranted under the instant facts. By compiling its Litigation Support System, Dow's at torneys are putting forth their best efforts to expedite the discovery phase of the instant litigation. The proposed system represents Dow's good faith effort to furnish the plaintiffs with as much relevant material as quickly and efficiently as possible, as well as being an integral part of the defense strategy of Dow's attorneys. Nevertheless, Dow could conceivably severely prejudice itself as a result of its effort to expedite discovery. By permitting the plaintiffs to obtain access to the Litigation Support System, which will in substantial part consist of a coded compilation of documents in Dow's posses sion relevant to the present lawsuit, the Court would in effect permit the plaintiffs to obtain information grossly in excess of that actually requested. Thus, the plaintiffs would receive answers to questions that were not asked in 15 the first instance. Plaintiffs must make out their own cases against the defendants, if they are so able, partially through the process of discovery. The release of Dow's Litigation Support System would cause Dow to participate in the construction of the case against it. While Dow recog nizes that the Federal Rules of Civil Procedure permit and encourage liberal and broad discovery, there has never been any suggestion by any court that a party should be compelled to affirmatively participate in the verification of the claims lodged against it. The Rules already provide that the plaintiffs are entitled to any documents in Dow's possession that relate to the present controversy, when proper requests for such documents are made, unless a specifically enumerated privilege bars discovery. It cannot be argued that those same Rules envision the involuntary surrender of a document by one party containing that party's own counsel's perception of which documents relate to the litigation, arranged according to the attorney's understand ing of the issues in the case, and containing entries made in accordance with counsel's view of materiality and rele vance . Dow submits that subjection of its Litigation Support System to discovery by the plaintiffs, causing severe prejudice to Dow, would constitute an undue burden under Rule 26(c). For that reason alone, Dow should be permitted to proceed with the compilation of its Litigation Support 3 System free from the threat of its subsequent discovery by the plaintiffs. In addition, as discussed in Point II above, the system itself will constitute opinion work product, reflecting the mental impressions, thought processes, and legal theories of Dow's defense counsel. Such material is explicitly protect ed from discovery by Rule 26(b)(3), and its release would place Dow at a severe disadvantage in the litigation. Therefore, the use of the material in question by the plaintiffs, should they be permitted to obtain it, would be unduly burdensome and even oppressive to Dow. It is clear that material such as Dow's proposed Litigation Support System is appropriate subject matter for a protective order. In United States v. International Business Machines Corp., 58 F.R.D. 556 (S.D.N.Y. 1973), IBM was accused of procuring the destruction of material falling within the protection of the court's preservation order. One such item was a computerized data base constituting "an annotated document retrieval system, designed to assist counsel in the organization of the numerous documents involved in the case," i d . at 558, similar in many respects to Dow's proposed system. IBM argued unsuccessfully that it was justified in authorizing the destruction of the data bank because the material constituted work product. The court observed that "work product is generally exempt from production under the Federal Rules," but rejected IBM's 17 contention because "the order in question was not an order to produce; rather, it was a preservation order." However, the court noted that "[i]f the documents had been retained, then, in response to a notice to produce, IBM could have moved for a protective order on the grounds of privilege." Id. Accordingly, the hardship that Dow would suffer as a result of the production of its proposed Litigation Support System constitutes "good cause" under Rule 26(c), and this Court should therefore issue an order exempting Dow's Litigation Support System from discovery. 8 on a -,3 18 CONCLUSION Given the foregoing, we respectfully ask this court to accord the relief requested herein and grant Dow's motion for a protective order prohibiting the discovery of its Litigation Support System. Respectfully submitted, Rivkin, Leff & Sherman Attorneys for Defendant The Dow Chemical Company 100 Garden City Plaza Garden City, New York 11530 (516) 746-7500 April 8, 1980 On the Brief: Leonard L. Rivkin Bruce Smith Jeffrey Silberfeld Steven M. Cohen Peter Alpert (not yet admitted) David H. Ledgin (not yet admitted) 8830 19 Le o n a r d L. R i v k i n ,P. C. LAW O m C E S R i v k i n , L e f f 8c S h e r m a n lOO GARDEN CITY PLAZA GARDEN CITY, NEW YORK 1153 J . S. rv TELEPHO NE TELEX CABLE ADDRESS TELEC O PIER (5 1 6 )7 4 6 -7 5 0 0 64S -074 A T LAW O R C Y (516) 7 4 7 -2 8 43 * MAY i 9 ISSO TIME A.M. P.M. May 13, 1980 Victor J. Yannacone, Jr., Esq. Yannacone & Yannacone, Esqs. Post Office Drawer No. 109 Patchogue, New York 11772 Dear Mr. Yannacone: Re: "Agent Orange" Product Liability Litigation MDL No. 381 This is to confirm our various telephone conversations culminating in our understanding of yesterday wherein our docu ment production is to be limited at this time, as follows: First, it is understood that the limitations mentioned herein are without prejudice to any request that you might make to expand the production, subject, of course, both to our rights to object and agreement on a confidentiality order. Secondly, with regard to those documents that are not being produced but are subject to the production Notice, Dow will hold same pursuant to a non-destruct understanding until the culmination of the existing lawsuits. It is further understood that the cutoff date for the production of documents will be the date of the service of the first summons and complaint, i.e., July 25, 1978. Notwithstand ing the foregoing, Dow will produce all documents, subject to the Notice in the instant case, that have been heretofore produced to the EPA. Dow is in possession of many bound books, pamphlets and the like which we will not produce in accordance with the Notice. We will, however, index these items and produce copies of the in dex which will list the author, title and edition. Dow also has a repository of its papers and published documents which we will treat similarly to the bound book and pamphlet items. In addition to the foregoing, there are literally miles of chromatograph sheets and computer printouts. It is understood 8633 THE PA RTN ER SH IP INCLUDES O NE OR M ORE PR O FE S S IO N A L CO RPO RATIO NS Rivkin. Left & S hehman Victor J. Yannacone, Jr., Esq. Page 2 May 13, 1980 that these items will not now be produced but, as aforementioned, will be retained under a non-destruct understanding. There are also innumerable laboratory notebooks and data books of the indi vidual scientists which will not be produced, but will also be maintained under the non-destruct agreement. These laboratory notebooks and data books of the individual scientists will be pro duced with them, when and if they are deposed. Since Tordon is not a phenoxy herbicide and does not contain 2,4,5-T, the documents pertaining to it will not be pro duced, although a non-destruct agreement will be effective for those documents as well. We will, however, produce all documents in accordance with the Notice pertaining to "Agent White." There are literally thousands of other documents which might, in a technical sense only, be classified as phenoxy herbi cides, but are in no way involved with or contain 2,4,5-T and it is understood that these documents will not be produced at this time -- again, they will be held pursuant to the non-destruct agreement. It is further understood that Dow's search will be limited to those documents located within the territorial limits of the United States. I believe the foregoing reflects our mutual efforts in attempting to avoid confrontations which can only be determined with judicial assistance and I thank you for such efforts. LLRrmp cc: Hon. George C. Pratt All Counsel &634 UNITED STATES DISTRICT COURT EASTERN DISTRICT of NEW YORK X in re "AGENT ORANGE" Product Liability Litigation KILE u IN CLERK'S OFFICE ... S. DISTRICT COURT E.D. ME A.M. p M. MDL No. 381 (All Cases) X NOTICE TO DEFENDANT OCCIDENTAL PETROLEUM CORPORATION TO ADMIT OR DENY CERTAIN ALLEGATIONS OF FACT PLEASE TAKE NOTICE that the plaintiff veterans and their families demand that defendant OCCIDENTAL PETROLEUM CORPORATION, by their attorneys, or the appropriate officer, director or other employee of said corporate defendant admit the following facts, or absolutely deny them, or in the alternative, provide such explanation as is necessary to clearly convey the accurate substance of each such allegation in a fashion that said defendants can admit as true, and demand is further made that said defendant file and serve such admissions, denials or statements on or before 27 June 1980. 8635 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 1- Defendant OCCIDENTAL PETROLEUM CORPORATION Corporate History 1. That defendant OCCIDENTAL PETROLEUM CORPORATION was incorporated in California on or about May 21, 1920. 2. That in 1961, for 213,302 shares and $1,047,000 cash, defendant OCCIDENTAL PETROLEUM CORPORATION acquired Signet Oil & Gas C o . 3. That on or about July 1, 1963, for 421,053 shares defendant OCCIDENTAL PETROLEUM CORPORATION acquired Best Fertilizers Co. and Best Fertilizers Co. of Texas. 4. That on or about December 11, 1963, for 103,579 shares, defendant OCCIDENTAL PETROLEUM CORPORATION acquired International Ore & Fertilizer Corp. 5. That on or about March 2, 1964, for 544,511 shares, defendant OCCIDENTAL PETROLEUM CORPORATION acquired Jefferson Lake Sulphur Co. 6. That in 1965, defendant OCCIDENTAL PETROLEUM CORPORATION acquired Green Belt Chemical Corp., Summers Fertilizer Co., and Best Fertilizers of Arizona. 7. That on or about November 1, 1966, for 1,742,759 of its &636 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 2- common shares, defendant OCCIDENTAL PETROLEUM CORPORATION acquired the Permian Corporation. 8. That in 1966, defendant OCCIDENTPAETLROLEUM CORPORATION acquired Garrett Research & Development Co. now Occidental Research Corporation. 9. That on or about March 1, 1967, for 732,573 of its common shares, defendant OCCIDENTAL PETROLEUM CORPORATION acquired McWood Corp. 10. That on or about January 29, 1968 for 1,494,706 shares of its $4 cumulative convertible preferred stock, defendant OCCIDENTAL PETROLEUM CORPORATION acquired Island Creek Coal Company. 11. That on or about Feb. 1, 1968, for 500,000 shares of its $4 convertible preferred stock, $40,000,000 in promissory notes, and $27,447,000 cash, defendant OCCIDENTAL PETROLEUM CORPORATION exercised an option to purchase all the European refining and marketing operations of Signal Companies, Inc. 12. That on or about July 24, 1968 defendant OCCIDENTAL PETROLEUM CORPORATION acquired defendant HOOKER CHEMICAL CORPORATION and on or about the same date HOOKER acquired the assets and assumed the liabilities of Sel Rex Corp. That in connection with these acquisitions, defendant OCCIDENTAL 8637 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 3 PETROLEUM CORPORATION issued 5,414,921 shares of its $3.60 convertible preferred and 574,066 shares of its $2.16 convertible preferred. 13. That on or about August 8, 1969, for $29,166,000 cash and assumption by Island Creek of certain 4-3/8% convertible subordinated debentures due June 1, 1983 and 5-1/4% sinking fund debentures due Oct. 1, 1977, Island Creek Coal Company, a subsidiary of defendant OCCIDENTAL PETROLEUM CORPORATION, acquired the operating assets and a*ssumed some of the liabilities of Maust Coal & Coke Corp. Island Creek did not purchase the company itself, however. 14. That in March 1970, defendant OCCIDENTAL PETROLEUM CORPORATION acquired Leather's Chemical Co., Bradford, England. 15. That in July 1970, for approximately $3,500,000 in cash and 175,000 shares of its $8 preferred stock valued at approximately $17,500,000, defendant OCCIDENTAL PETROLEUM CORPORATION acquired the Latin American vinyl plastic operations of W.R. Grace & Co. 16. That in July 1971 Jefferson Lake Petrochemicals of Canada, Ltd. was combined with the Canadian oil, gas and chemical operations of defendant OCCIDENTAL PETROLEUM CORPORATION into a new company called Canadian Occidental. Petroleum Ltd. which is now 82% owned by defendant OCCIDENTAL' PETROLEUM CORPORATION. 8638 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 4- 17. That in 1971 defendant OCCIDENTAL PETROLEUM CORPORATION acquired Effluent Control International Ltd., Almex, S.A., and Aramis S.A. all of which were consolidated with Udylite Mexicana into a new company called Oxymex S.A. de C.V. 18. That in August 1977, for approximately $49,000,000 cash, defendant Hooker Chemical Corp., a subsidiary of defendant OCCIDENTAL PETROLEUM CORPORATION acquired Zoecon Corp. 19. That in August 1978, defendant OCCIDENTAL PETROLEUM CORPORATION acquired Ring Around Products, Inc. 8639 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 5 Defendant OCCIDENTAL PETROLEUM CORPORATION Subsidiaries and Affiliates 20. That defendant OCCIDENTAL PETROLEUM CORPORATION is an operating and holding company owning, as of December 31, 1978, 100% voting control, unless otherwise indicated, of the following subsidiaries. The name of the state of incorporation or location of the principal office of each company is also indicated in parentheses (); and the percentages indicated in parentheses () indicate the percentage of the company owned by defendant OCCIDENTAL PETROLEUM CORPORATION in those companies which are not wholly owned subsidiaries. Occidental Petroleum Investment Co. (California) Hooker Chemical Corp. (California) Hooker Chemical Holdings, Ltd. (United Kingdom) Leathers Chemical Co., Ltd. (United Kingdom) Oxy Metal Industries (G.B.) Ltd. (United Kingdom) Hooker Chemical Investment Co. (California) Hooker Chemical Properties Corp. (California) Occidental Engineering Co. (Delaware) Occidental International Engineering Co. (California) Oxy Chemical Corp. (California) B.D.M. Chemical Corp. (Colorado) Suwanee River Chemical Co. (Florida) Hooker Chemicals & Plastics Corp. (New York) Hooker Chemicals Ltd. (Canada) (Includes 31.09% owned by Hooker Chemical Corp and 11.40% owned by Oxy Chemical Corp. and its subsidiaries) Canadian Occidental Petroleum Ltd. (Canada) (82.22%) Canadian Occidental of California, Inc. (California) Hooker Taft Corp. (La.) International Ore & Fertilizer Corp. (Delaware) ob40 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 6- J Occidental Chemical C o . (California) OMF California, Inc. (California) Oxy Metal Industries Corp. (California) Wilshire International Corp. (California) Interore Corp, Inc. (California) Puerto Rico Chemical Co., Inc. (Delaware) Jacksonville Bulk Terminals, Inc. (Florida) Occidental Chemical & Phosphate Corp. (California) Oxychem Investments Corp. (California) Oxy Metal Industries (Suisse) S.A. (Switzerland) Oxychem Properties Corp. (California) (Includes 25% owned by Hooker Chemical Investment Co.) Sintticos S.A. (Colombia) Sodaplast-Sociedad para Desenvolvimento de Plsticos Limitada (Brazil) (Includes 31,74% owned directly by Hooker Chemical Corp.) Vulcan Material Plstico S.A. (Brazil) Zoecon Corp. (Delaware) Island Creek Coal, Inc. (California) Island Creek Coal Co. (Delaware) Coal Properties Co. (Delaware) Coal Venture Co. (Delaware) Garden Creek Pocahontas Co. (Delaware) Hammer Coal Co. (Delaware) Birch Coal Co. (West Virginia) Bird Coal Co. (West Virginia) Cherry River Coal & Coke Co. (West Virginia) Gauley Coal & Coke Co. (West Virginia) Potomac Coal Co. (Pennsylvania) Island Creek Pocahontas Co. (Delaware) Occidental International Finance N.V. (Netherlands Antilles) Occidental Oil & Gas Corp. (California) Occidental Construction or about & Management Co. Ltd. (United Kingdom) Occidental Crude Sales, Inc. (Delaware) 8641 80-06-02 Notice to Adm it/OCCIDENTAL PETROLEUM CORPORATION -page 7- Occidental Exploration or about & Production or about Co. (California) Occidental Boliviana, (Chaco), Inc. (California) Occidental Boliviana (Charague), Inc. (California) Occidental Boliviana, Inc. (California) Occidental Oil Shale, Inc. (California) Occidental Overseas Ltd. (Delaware) Occidental Petroleum (Great Britain), Inc. (California) Occidental of Britain, Inc. (California) Occidental Petroleum (Caledonia) Ltd. (United Kingdom) Occidental Petroleum (Scapa) Ltd. (United Kingdom) Occidental Petroleum (United Kingdom) Ltd. Occidental Petroleum Corp. of Peru (California) Occidental International Oil, Inc. (California) Occidental of Libya, Inc. (Delaware) Occidental of Libya (EPSA), Inc. (Liberia) Occidental Oil & Gas (USA), Inc. (California) Oxy Petroleum, Inc. (California) The Permian Corp. (Delaware) Western Oil Transportation or about Co., Inc. (Texas) Occidental Overseas Finance N.V. (Netherlands Antilles) Occidental Refineries Ltd. (United Kingdom) Occidental Worldwide Investment Corp. (Liberia) Concord Petroleum Corp. (Liberia) Permian Trading Corp. (Liberia) (0.8% owned by public) Raffinerie Belge de Ptroles S.A. (Belgium) (99.2%) Occidental Overseas Capital Corp. (Delaware) Occidental Land, Inc. (California) Occidental Research Corp. (California) Sheridan Enterprises, Inc. (California) Ring Around Products, Inc. (California) 21. All the foregoing subsidiaries are consolidated in the Consolidated Financial Statements of defendant OCCIDENTAL PETROLEUM CORPORATION except Occidental Land, Inc. which is 8642 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 8- carried at an amount equivalent to the equity in its net assets. Defendant OCCIDENTAL PETROLEUM CORPORATION Business 22. Defendant OCCIDENTAL PETROLEUM CORPORATION is engaged in exploring for and developing and extracting natural resources, principally oil and gas outside the United States and coal within the United States; marketing and transporting petroleum and petroleum products; and manufacturing and distributing industrial chemicals, plastics, metal finishing chemicals and equipment, and agricultural chemicals and fertilizers. As used throughout this Notice, defendant OCCIDENTAL PETROLEUM CORPORATION refers to Occidental Petroleum Corporation or Occidental Petroleum Corporation together with one or more of its subsidiaries or joint venturers. 8643 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 9- Defendant OCCIDENTAL PETROLEUM CORPORATION Agreements with U.S.S.R. and Poland 23. Commencing in 1973, defendant OCCIDENTAL PETROLEUM CORPORATION has entered into agreements with U.S.S.R. which provide for defendant OCCIDENTAL PETROLEUM CORPORATION to furnish technology, design, and construction supervision services and equipment for port storage and pipeline facilities to U.S.S.R. and for sale of superphosphoric acid ("SPA") to the U.S.S.R. and purchase of fertili zer by defendant OCCIDENTAL PETROLEUM CORPORATION from the U .S.S.R. during the period 1978 through 1997. The fertilizer ag reements require that the sale price for each of the fertilizer commodities be set periodically by agreement between the parties based market prices, with provision for resolution of any differences. Defendant OCCIDENTAL PETROLEUM CORPORATION is to receive a 2.5% discount from the prices for ammonia; a 3 .0% discount from the prices for urea, and a 3% discount from the prices for potash. 24. That in August 1978, aganreement was announced for the sale of 1,000,000 metric tons of phosphate rock from defendant OCCIDENTAL PETROLEUM CORPORATION to Poland annually and the purchase, at world prices to be agreed upon periodically, of 500,000 metric tons of molten sulphur annually by defendant OCCIDENTAL PETROLEUM CORPORATION from Poland over a 20-year period. Final implementation of the agreement is subject to resolution of certain details. 8644 80-06-02 Notice to Adm it/OCCIDENTAL PETROLEUM CORPORATION -page 10 Defendant OCCIDENTAL PETROLEUM CORPORATION Principal Operations and Properties OIL & GAS OPERATIONS International Production and Exploration 25. Although all its international production through 1976 was from Libya, defendant OCCIDENTAL PETROLEUM CORPORATION is now producing oil in the United Kingdom sector of the North Sea as well as in Peru and Bolivia. Libyan Operations 26. That in 1966, the Libyan Government awarded concessions 102 and 103 for the exploration and production of crude oil, gas liquids and natural gas in certain areas of the Sirte Basin of Libya to defendant OCCIDENTAL PETROLEUM CORPORATION. Both concessions were awarded for 44-year periods, with certain provisions providing renewal for up to an additional 16 years with approval of the Libyan Government. 27. That in August 1973, Libyan Government unilaterally nationalized 51% of assets of Oxylibya, including 51% of Oxylibya's interest in its concessions, a gas liquids plant, pipelines and marine terminal facilities. Oxylibra's 49% 8645 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 11- U iAtili.I.... interest in the production of oil, including gas liquids from concessions 102 and 103 averaged approximately 167,000 barrels per day in 1978. 28. That in December 1975, in settlement of a dispute, Oxylibya entered into an agreement with Libya which, among other things, set forth specific minimum production levels and the intention to assure a "fair remuneration" to Oxylibya and further provided that the amount of payments owing by Oxylibya to Libya and NOC at any one time would not be less than approximately $272,000,000. 29. That in January 1979, Oxylibya and the Libyan Secretariat of Petroleum and NQC entered into a new agreement which is to supersede the 1975 Agreement. The 1979 Agreement provides for settlement of Oxylibya's claim for supplemental "fair remuneration" under the 1975 Agreement. The 1975 i Agreement's provision for "fair remuneration" is replaced in the 1979 Agreement by a provision stating that defendant OCCIDENTAL PETROLEUM CORPORATION shall receive a "reasonable return" in 1979 and 1980 from its equity productions from the concessions. 30. The 1979 Agreement also provides that NOC will pay Oxylibya to make up to prior periods during which Oxylibya took less than its full 49% share of production. That in addition, Oxylibya is to transfer to NOC its minority interest in a 4 methanol plant. Finally, Oxylibya continues to have the option, 8646 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 12 S ito ;. 1 but no obligation, to purchase crude oil from NOC in quantities equal to N O C 's 51% share of production from the concessions. The 1979 Agreemment terminates the provision of the 1975 Agreement under which payments owing to the Libyans would not be less than approximately $272,000,000. 31. That in 1974 Oxylibya and the Libyan Government signed an agreement for oil exploration which at December 31, 1977 covered approximately 12,700,000 acres. The term of this agreement is 35 years for each block on which a commercial discovery is made prior to July 1, 1979. The agreement also provides that any future oil production will be divided 81% for NOC and 19% for Oxylibya, free from Libyan taxes and royalties. 32. Seven oil discoveries on this acreage have been established as commercial. Oxylibya is producing from six of these fields. United Kingdom Operations 33. Defendant OCCIDENTAL PETROLEUM CORPORATION acts as operator for, and holds a 36.5% interest in, a group which holds production licenses to explore and develop two whole and two partial blocks covering approximately 159,000 acres in the United Kingdom sector of the North Sea. The Group also holds a 49% interest in an additional block covering approximately 54,000 8G47 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 13- acres, in which the British National Oil Corp. holds 51%, awarded in the United Kingdom's fifth round of licensing. That in March 1979, the Group was awarded a new block in the sixth round of licensing, subject to satisfactory negotiation of a work commitment and joint operating agreement. 34. That in 1972 the Group discovered Piper field, located approximately 130 miles southeast of the Orkney Islands. Production commenced in December 1976. The defendant OCCIDENTAL PETROLEUM CORPORATION'S share of production, net after a 12-1/2% royalty, averaged approximately 80,000 barrels per day in 1978. It is expected that a peak rate approximating .300,000 gross barrels per day, or approximately 96,000 barrels per day net to defendant OCCIDENTAL PETROLEUM CORPORATION after royalty, will be achieved in 1979. 35. That in 1974 the Group discovered Claymore field, located approximately 20 miles west of Piper field. Production commenced in November 1977. The defendant OCCIDENTAL PETROLEUM CORPORATION'S share of production, net after royalty, averaged approximately 19,000 barrels per day in 1978. Peak production of approximately 115,000 gross barrels per day or approximately 37,000 barrels per day net to defendant OCCIDENTAL PETROLEUM CORPORATION after royalty, is expected to be reached in 1980. 36. At December 31, 1978, Co. had a net investment of approximately $561,000,000 for exploration and development in the 8648 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 14- licensed areas. 37. That in August 1977, defendant OCCIDENTAL PETROLEUM CORPORATION and the group reached an agreement with the United Kingdom government and the British National Oil Corp. ("BNOC") providing for participation by BNOC with members of group in their interests in the licenses covering the Piper and Claymore fields. Pursuant to this agreement BNOC has become a party to Piper and Claymore licenses and the operating agreements relating to the fields, the pipeline and the Flotta terminal. BNOC has a 10% vote thereunder. That in accordance with agreement, BNOC has no interest in the property or facilities covered by the operating agreements, but has an option to purchase, at prices in line with those prevailing in the international market, up to 51% of the crude oil and natural gas liquids production available from the Piper and Claymore fields. 38. Since April 1978, defendant OCCIDENTAL PETROLEUM CORPORATION has been selling 25% of its share of North Sea production to BNOC. This level will increase to 37.5% on or about Apr. 1, 1979, and to 51% on or about Apr. 1, 1980. Peruvian Operations 39. The defendant OCCIDENTAL PETROLEUM CORPORATION has made nine oil discoveries on a block covered by a 35-year production- 8S49 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 15 -sharing agreement signed in 1971 with the Peruvian state oil company ("Petroperu"). The defendant OCCIDENTAL PETROLEUM CORPORATION'S net share of proved reserves attributable to these discoveries was approximately 66,636,000 barrels of crude oil as of December 31, 1977. Defendant OCCIDENTAL PETROLEUM CORPORATION is delivering approximately 80,000 gross barrels of crude oil per day to Petroperu's Trans-Andean pipeline. That in April 1978 defendant OCCIDENTAL PETROLEUM CORPORATION entered into a second production sharing agreement with Petroperu on an adjacent block, as well as a contract for secondary recovery operations in northwest Peru. At December 31, 1978, defendant OCCIDENTAL PETROLEUM CORPORATION'S net investment in Peru was approximately $219,000,000. B o l ivia 40. That in August 1973, defendant OCCIDENTAL PETROLEUM CORPORATION signed a production-sharing contract with YPFB, the Bolivian national oil company, which currently covers approximately 1,200,000 acres in the Robore area of the Chaco Basin of Eastern Bolivia. Defendant OCCIDENTAL PETROLEUM CORPORATION C o . is entitled to 50% of the oil produced from the contract area and from 50% to 47% of the gas produced, depending on the rate of production, in both cases net of taxes. Production commenced in January 1978. 8650 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 16- 41. Defendant OCCIDENTAL PETROLEUM CORPORATION had a net investment in Bolivia of approximately $44,000,000 at December 31, 1978. Other International Operations 42. Defendant OCCIDENTAL PETROLEUM CORPORATION has exploratory rights in Colombia, Pakistan and Trinidad. Defendant OCCIDENTAL PETROLEUM CORPORATION had investments of approximately $6,300,000 in these areas and other areas at December 31, 1978. International Marketing and Refining Marine Transportation 43. Defendant OCCIDENTAL PETROLEUM CORPORATION engages in trading of crude oil and gas liquids purchased from third parties. 44. Defendant OCCIDENTAL PETROLEUM CORPORATION engages in marine transportation through ownership or charter of vessels primarily used to transport oil. At December 31, 1978, defendant OCCIDENTAL PETROLEUM CORPORATION'S tanker fleet included three tankers having an aggregate capacity (deadweight tonnage) of approximately 200,000 long tons which it owns, and 9 tankers having an aggregate capacity of approximately 1,290,000 long tons, including two very large crude carriers ("VLCCs") each having a deadweight tonnage of approximately 260,000 long tons, owned by others, which defendant OCCIDENTAL PETROLEUM CORPORATION 8651 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 17- has contracted to use for specified periods of time. North American Crude Oil Marketing and Transportation 45. The Permian Corporation is engaged in North America in the business of purchasing, transporting and marketing crude oil, principally in southern, southwestern, and northwestern areas of United States. 46. At December 31, 1978, Permian Corporation's crude oil gathering and delivery system included approximately 5,300 miles of pipelines with a daily throughput capacity of approximately 580,000 barrels; 493 tractors, 501 tank trailers, aand 26 truck terminals and storage facilities having a total capacity of approximately 4,200,000 barrels. That Permian Corporation operates 14 barge terminals also. United States Production and Exploration 47. At December 31, 1978, defendant OCCIDENTAL PETROLEUM CORPORATION owned oil and gas interests in 13 states. 48. During 1975 through 1978 defendant OCCIDENTAL PETROLEUM CORPORATION expended approximately $57,000,000 to acquire offshore leasehold interests. Defendant OCCIDENTAL PETROLEUM 8G52 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page CORPORATION now holds various interests (including those of Canadian Occidental) in a total of 72 federal and state tracts offshore Texas and Louisiana, five tracts offshore Southern California, two in the Gulf of Alaska and four in Cook Inlet, Alaska. * 49. Defendant OCCIDENTAL PETROLEUM CORPORATION has developed and is testing a modified _in situ shale oil process on oil shale lands it owns in the Piceance Creek basin of Colorado. The process, recovers shale oil be heating fragmented oil shale completely underground in partially-mined and rubbled columns, or retorts. 50. At December 31, 1978, the net investment of defendant OCCIDENTAL PETROLEUM CORPORATION in its shale oil process was approximately $38,000,000, exclusive of research and development charged to income. 51. At December 31, 1978, defendant OCCIDENTAL PETROLEUM CORPORATION had approximately 660,000 gross and 594,000 net acres of prospective undeveloped geothermal properties in four western states. 8653 I 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 19- Defendant OCCIDENTAL PETROLEUM CORPORATION Chemical Operations 52. Defendant HOOKER CHEMICAL COMPANY and its subsidiaries are engaged in production and marketing industrial chemicals and plastics; metal finishing chemicals, equipment and processes; and agricultural chemicals, fertilizers and related products. Canadian Occidental Petroleum Ltd., an 82% owned subsidiary of defendant HOOKER CHEMICAL COMPANY, conducts oil and gas operations and exploratory activities in Canada and offshore United States Gulf Coast as well as certain chemical operations. Industrial Chemicals and Plastics 4 53. The principal industrial chemicals and plastics products of defendant HOOKER CHEMICAL COMPANY include chlor-alkali chemicals phosphates and phosphoric acids, specialty chemicals, plastic additives and chlorinated solvents. HOOKER'S principal plastic products include polyvinyl chloride film, phenolic resins and molding compounds, polyvinyl chloride resins and polyurethanes. 8654 45 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 20- Metal Finishing Chemicals, Equipment and Processes 54. The metal finishing operations of defendant HOOKER CHEMICAL COMPANY include the sale of chemicals, equipment and processes used by others in the electroplating and surface treatment of metals and other materials and the sale of conversion coating processes and chemicals for modifying metal surfaces. Agricultural Chemicals, Fertilizers and Related Products 55. The principal agricultural chemicals, fertilizers and related products of defendant HOOKER CHEMICAL COMPANY are mixed and blended fertilizers, diammonium phosphate, phosphate rock, ammonium sulphate, anhydrous ammonia, triple superphosphate, other ammoniated phosphate complex fertilizers and superphosphoric acid. Canadian Occidental Petroleum Ltd. Oil and Gas'Operations 56. That in addition to conducting various chemical operations in Canada , Canadian Occidental Petroleum Ltd. owns oil and gas interests in Canada, offshore United States Gulf Coast, and Peru. 8655 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 21- i. Defendant OCCIDENTAL PETROLEUM CORPORATION Coal Operations 57. Island Creek Coal Co. is engaged in production and marketing of bituminous coal, from underground surface mines. Coal produced consists of steam coal and low, medium and high volatile metallurgical coal. Is is one of the largest domestic coal producers. 58. Island Creek Coal Co. produces coal from 32 owned mines located in Kentucky, Pennsylvania, West Virginia, and Virginia. Of these mines, 13 produce steam coal, 13 produce metallurgical coa, and six produce both steam and metallurgical coal. Included in this number are several mines in Kentucky and West Virginia where mining is done by independent contractors and preparation and distribution are done by Island Creek Coal Co. Island Creek Coal Co. also supervises production at three metallurgical coal mines which are owned by joint ventures in which Island Creek Coal Co. and major steel companies are the participants. 59. Island Creek Coal Co. has under construction four underground mines, two in Kentucky, one in West Virginia, and one in Virginia. These new mines are expected to increase Island Creek Coal Co.'s productive capacity by an estimated 6,700,000 tons of coal per year by 1982. 8656 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 22- 60. At December 31, 1978, Island Creek Coal Co. owned or leased bituminous coal reserves estimated at approximately 3,415,000,000 recoverable tons. Of these reserves, approximately 146.733.000 tons of assigned reserves were leased to jointly-owned companies. Island Creek Coal Co. estimates that approximately 1,535,678,000 tons of its estimated recoverable reserves have a sulphur content of 1% or less. Approximately 618.469.000 tons represent low and medium volatile coal used principally for metallurgical purposes, and approximately 549.101.000 tons represent high volatile coal of a quality which also may be used for metallurgical purposes. 61. Defendant OCCIDENTAL PETROLEUM CORPORATION is proceeding with plans for the acquisition and development of coal deposits in the western states. Defendant OCCIDENTAL PETROLEUM CORPORATION owns or leases coal rights in Colorado and Wyoming estimated by its geologists to contain approximately 457,000,000 recoverable tons. Defendant OCCIDENTAL PETROLEUM CORPORATION Other Operations Real Estate 62. Occidental Land, Inc. a wholly-owned subsidiary of defendant OCCIDENTAL PETROLEUM CORPORATION has been engaged in 8657 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 23- the development and marketing of real estate located principally in California. 63. Defendant OCCIDENTAL PETROLEUM CORPORATION intends to achieve an orderly disposition of its real estate. Research and Development 64. The combined professional research and development staff of defendant OCCIDENTAL PETROLEUM CORPORATION totals approximately 400 persons. 65. Expenses for research and development by defendant OCCIDENTAL PETROLEUM CORPORATION in 1978 were approximately $35,000,000. DATED at Patchogue, New York, 2 June 1980 Victor John Yannacone, jr. YANNACONE & ASSOCIATES Plaintiffs Attorneys Postal Address Post Office Drawer #109 Patchogue, New York 11772 (area code 516) 654-2299 SERVICE by mail upon USDC/EDNY 28 May 1980 Service List 8658 80-06-02 Notice to Admit/OCCIDENTAL PETROLEUM CORPORATION -page 24-