Document r6x8OKN8O3OVnojbMXekBwnzq

1 I* ' Smith Helms Muluss & Moore, L.L.R Attorneys At Law Greensboro, North Carolina suit* moo sen wmosctrmrwi onei5seara?x*e*;r?*<as mtonc. ms ww Teiewowe u*m*-uoe facsimnnilwe^wanmnuaaim****** WWfiW MIBN. 3Sj?a.5a3i January 12,2001 fid AoTtUhAkMk *o* men CH4HLOTT* RALliEJW mkMmsr&m mows mtiLAmess VI4 PA^gmCTT.R Donald W. Stewart Donald W, Stewart, P.C. 1131 Leighton Avenue Anniston, Alabama 36207 Re; Billy R. Nelson, et al. v. Monsanto Company, et at Dear Donald: TMs letter will briefly summarize the discussions of counsel for the parties on Wednesday, January 10,2001, in connection with plaintiffs* discovery requests and motion to compel. My notes reflect the following regarding our discussions: L Interrogatory Nos. 7 and 8: As discussed, we have not located documents that show the amount of solid PCBs that were disposed of in either the West End Landfill or the South Landfill from 1930 until the present. We understand that liquid PCBs were not disposed of in the landfills. The West End Landfill was closed in or about the late 1950s and, as you know, this property was transferred to Alabama Power Company in about 1960. Records reflecting the solid wastes disposed of in the South Landfill were kept beginning in the early 1980s, and such disposal records that have been located have been included in the DSW production. As reflected in earlier discovery responses, the PCB manufacturing process ceased Lr and the Arocior Department was demolished in 1972. ,, Both parties are aware of a couple of documents in the DSW production set that contain estimates of the amount of solid PCBs disposed of in the South Landfill, with one of those documents containing an estimate only for the period from 1971 through 1975. In addition, you indicated that both Jerry Brown and Gene lessee testified during their depositions that one could do a calculation regarding the amount of solid wastes generated m the PCB manufacturing process, if one knew the volume of PCBs produced in the manufacturing process. As discussed, we have searched for, but have not located, documents showing such calculations. We have provided to you in our responses to interrogatories in other cases the information, we have located EXHIBIT TOWOLDMONOQ49097 Donald. W. Stewart January 12,2001 Page 2 regarding the volume ofPCBs produced at the Anniston Plant on an annual basis, but that information is not complete. Those interrogatory responses referred to the D5W documents from which we collected that production information. We agreed to review the depositions of Mr. Brown and Mr. lessee and to talk further with them regarding the process of calculating the amount of solid wastes that would be generated during the PCB manufacturing process and-to provide to you any further information we can locate or determine regarding this subject. 2. Interrogatory No. 14: We have searched for, but not located, documents that show the total annual revenue generated from the manufacture ofPCBs at the Anniston Plant .for each year from 1935 (the interrogatory says 1930, but Monsanto acquired the site and the manufacturing process in 1935), until Monsanto stopped the PCB manufacturing process in Anniston. You referred to a document counsel have seen in the DSW production which contains information regarding revenues from PCB production at t-- piston Plant at the time Monsanto was considering terminating production ofPCBs at Anniston. We agreed that we would search . again for documents or records that contain information regarding the annual revenue from PCBs manufactured at Anniston by Monsanto for each year that Monsanto manufactured PCBs in Anniston. 3. Interrogatory Nos. 15,16 and 17: We agreed to provide additional information and references to documents in the DSW production to supplement our responses to these interrogatories. In so doing, we will attempt to segregate specific remediation projects and the costs associated with those specific projects. 4. Interrogatory No. 23: We agreed feat, assuming there is no privilege protecting the information from disclosure, we will supplement our answer to this interrogatory regarding the dollar amount of reserves established for PCB litigation at Anniston and PCB remediation at Anniston. 5. Interrogatory No. 24: The parties agreed that Momsanto/SoSutia would first respond further to this interrogatory by identifying particular PCB remediation projects (excluding small or spot remediations such as clean-up of a transformer leak), and we would provide a description of that project by narrative or a descriptive project document Plaintiffs* counsel will review this information and identify those projects with respect to which plaintiffs' counsel request further information responsive to this interrogatory. 6. Interrogatory No. 27: Counsel agreed to hold Interrogatory No. 27 in abeyance pending the supplemental responses to Interrogatory Nos. 15, 16 and 17. 7. Interrogatory No. 28: We agreed that we would provide any specific information that Monsanto/Solutia has regarding other potential sources ofPCBs in and around Anniston or TOWOLDMONOQ49098 Donald W, Stewart January 12.2001 Pages would state that Monsanto/Soiutia did not have such information. Plaintiffs' counsel acknowledged that they have the specific information regarding Tull Chemical Company. 8. Document Repository: Counsel discussed Monsanto/Solutia's position that the PCB document repository in Greensboro, North Carolina is protected from review by plaintiffs' counsel by the work-product privilege/doctrine. We agreed to send to plaintiffs' counsel sample copies of affidavits filed by Monsamo/Solutia in other courts in support of the work-product claim. I am faxing those affidavits with this letter. 9. Document Requests: We did not discuss specific document requests further, since the document requests correspond with fee interrogatories we discussed. I believe E have summarized our discussions regarding the discovery requests discussed at our January 10 meeting. Please let me know if I have omitted any of those requests. Based on our discussions, we do not believe that it is necessary for the parties to file further papers with the Special Master at this time regarding the motion to compel and these discovery issues but, again, please let us know if you disagree. Very truly yours, SMITH HELM MEKJhm Enclosures cc: Charles L. Cunningham, Jr., Esq. (w/encls.) Jack Atkin, Esq. (w/encls.) Adam K. Peck (w/o ends.) William S, Cox, IE (w/o ends.) TOWOLDMONOQ49099 fl Pitney, Hardin. Kte & Szucw |MAltT}f,Q. box ISMS. MOHWSTOWM. N^. OT9SS-I945 COCUVEIW TO} ZOO CAMPUS 0VE. FU5RMAM PARK. KJ. 0W32-OSSO tZOi) 6-3O0 Ammim for Third-Party Defendant Monsanto Company CITY OP JUffiOf, a Municipal Corporation, Plaintiff/Counter claim Defendant, : . : SUPHQOii COURT OF NEW JERSEY LAW DIVISION: MIDDLESEX COUNTY DOCKET NO. L--073370-87 v. s Civil Action " WITCO CORPORATION, s Defendant/Coantar- : ci&imant/Third-Party Plaintiff, ,, AFFIDAVIT OF JOSEPH G. NASSIF v. : MONSANTO COMPANY, &t &1 Third-Party Defendants. : ; STATE OF MISSOURI } ) SS. : COUNTY OF ST. LOUIS ) JOSEPH 6. NASSIF, being duly sworn according to law, upon his oath, deposes and says; TOWOLDMONOQ49100 ft- 4 r:- , 1,1 have been licensed to practice lav in the state of Missouri since 1974. From 1974 until May 1986 I was employed by the defendant Monsanto as an attorney in' their law department, - Beginning in November 15S1 until ay departure, I was a litigation ; attorney in Monsanto' s law department. I am currently representing, ;l Monsanto in a number of matters, as a partner in the law firm of i! i ' Cobum, Croft, fi Putzell in St. Louis, Missouri. The statements in :{ this affidavit are based on my personal knowledge, unless otherwise :8 ` ! nc..... 2. During the period from November 1981 until January 1985, I was responsible for the management of lawsuits related to the manufacture and sale of polychlorinated biphenyls ("PCBs") by: Monsanto, During that time 1 developed, with Monsanto's outside* counsel, Monsanto1s PCB litigation defense strategies in pending and anticipated cases. 3, Shortly after assuming the management of Monsanto's. PCB litigation defense I organized the identification and collection of all documents in the possession of the company that related in any way to the sale and manufacture of PCBs. Upon completion of this work the documents were maintained under the control of the law department. This collection of documents contained both discoverable and nondiscoverable' (privileged) documents. 4. Following the collection, review, and consolidation i of the documents, I decided that they required substantial! -2- TOWOLDMONOQ49101 Ck)*! I organization in order to marshal tie documents and facts which in I. J my judgment were relevant and significant from those which were {! not. Also# it was necessary "to organize the documents and facts in ? f !; a manner which, in ay opinion, would be most useful in the defense I of pending and anticipated litigation. At my request David K. I" Si Moore assisted me in these taste. i) l| if 5. Before commencing the review of the documents, Mr. | Moore and I had extensive discussions regarding those documents: I which we felt would be particularly important in the defense of= I` | current and anticipated PCB litigation. During the course of our- j review of -the documents, we decided whether or not particular ij I documents were in fact significant enough to be included within the; | collection of documents selectedfor organization andj categorization `for use in ongoing and future litigation. Those; documents which we determined to be relevant and significant were- i included in the litigation resource library. Documents not.; i selected for this library were retained by Monsanto and remained! . available for appropriate litigation discovery. , ' !; j .| 6 Beginning in late 1382 I assessed the available' computerized retrieval systems for litigation support. I then; selected a retrieval software, system which, based on my judgment, s most closely mar our needs in the approximately 34 PC3 lawsuitsj then pending. wall as our anticipated .litigation support needs; in future cases. , i -3- i s ! TOWOLDMONOQ49102 7. Jus part of the PCS document data base system : Sdesign, Mr. Moore and I prepared a classification system to be used i for creating and organizing coded summaries of doctaants considered in our judgment to be of importance in. the litigation defense of f Monsanto's PCS products- This data base contains my legal opinions ' and theories concerning the defense of Monsanto in then -existing j and anticipated litigation relating to PCBs, opinions and theories of Hr. Moore, . well as the legal : s = 8. following the preparation of the classification , ]system `for the data base, Mr. Moore and X personally trained a j '* \ small number of document reviewers employed by Monsanto for the j purpose of classifying and summarizing the documents pursuant to ! "| oar instructions. Those instructions were designed to allow prompt i retrieval of the information Mr. Moore and 1 considered to be j significant within the context of Monsanto' s overall litigation, = strategy. Mr. Moore and I ,supervised and spot-cheeked this classification and summarization work to assure ourselves that the : completed, data base would meet our litigation objectives. 9. Following completion of the' FCB litigation data base, and until my responsibilities were assumed by Mr. Bistline in JJanuary 1985, the data base. was used exclusively in support of Is jiMonsanto's law department and outside counsel in their'defense of S , i PCS lawsuits brought agaxnst the company. All aspects of the 1 I!development and use of counsel for Monsanto. the At system were controlled and conducted by all times all counsel for Monsanto and ' . ! j - 4. - TOWOLDMONOQ49103 TOWOLDMONOQ49104 Pitney. Hardin, Kipp & Szuch (MAtl TO! PJD. BOX I&4S. MGHHfSTCWH. HJ. 09BB2-SM3 lOELWEW TOfSOO CAMPUS OWE. AMW. 0?S32-05O OI| BBB-B30O attorhcys fo Third-Party Defendant 'Monsanto Company SUPERIOR COURT OF MEW JmSEf LAW DIVISION: MIDDLESEX COUNTY DOCKET HO. L--073370--87 CITY OF PERTH AMBOY, a Municipal Corporation - tiff/Counter claim Defendant, v. WITCO CORPORATION, Civil Action AFFIDAVIT OF moms M. BI8TLXNE Defendant/Counter . claiaant/Third-Party * Plaintiff, it _ V. ;:iMONSANTO COMPANY, '' Ttird-^arry Defendants. i STATE OF MISSOURI ) J COUNTY OF ST. LOUIS ) SS. : t THOMAS M. BlSTliINE, being duly sworn according to law, ; f upon his oath, deposes and says: ! TOWOLDMONOQ49105 1?! 1. I am licensed to practice law in the State of law :fyor3c. 1 as aa attorney in Monsanto * s litigation department with ,'iresoonsifcllity, among other things, for the management of lawsuits I' ^pertaining to the manufacture of sale of polychi orinated biphenyls >4 l|{"PCBs11) hv Monsanto. 1 am the successor to 'Hr.. Josenh G. Massif ;t " ` "in this position. I have personal )aiowladge of the statements made il "in this affidavit. | 2. In performing my law department responsibilities, j |Jl have become familiar with the computerized PCB document data base ! 1 -!iassembled by Messrs. Massif and Moore, ;( tinder my direct supervi' Jjsion, this system has been used solely in connection with, the ;i I defense of pending and anticipated. PCB litigation. * : ' : | 3. The computerized document data base system, , 1; jiincluding the document classification system originally prepared by : inessrs. Massif and Moore, has been maintained in strict confidence ! Ibv counsel for Monsanto. The system has never been reduced it any I" j.; litigation or to any person other than counsel for Monsanto or their direct representatives. The system reflects, in Its original ' jdasign and in its current configuration, the legal opinions of I |Monsantofs attorneys concerning the identity of factual subject !|matters important to the defense of Monsanto11 s PCB cases, the 1a ,jinterrelationships between those matters, and summaries of the ( f ;!significant documents relating to those subjects. i i! # 4- Access to Monsantofs computerized data base system in no vv i accessary for' the Witco Corporation (,,Witco,T) to - 2~ - TOWOLDMONOQ49106 A C'~ obtain full discovery in this case. Monsanto has produced and will i centlime to produce all documents in its possession, including j documents inside and outside of 1be. data base, that are responsive j to Witco's requests, subject only to objections made pursuant to i j the New Jersey Rules of Civil Procedure. . I know of no reason why l- c i counsel for ffiteo cannot formulate their discovery requests without | relying on the work product of Monsanto's lawyers. . j SWORN TO AND 5CSCR2BED AHD before me this jA* day of July, 1992. \T/ 'Notary" Public !. |My commission expires: 1 JOSEPHUS S.IBBUWC j NOTARY P08UC STATI OF JHS5Q0E3 1 . ST.LOUlSCOtKTY * m cawssai s. ml t&ins I 3 BISTLINE | 1 I[ ! ! i I t i J ! i f f I TOWOLDMONOQ49107 Pitney, Hardin. Kipp Szuch jMAiL roi p.o. box isms. wownsrewK, wj, dtsii-imj jBgUVEH'f TO! 200 CAMPUS mWZ* XLOSIHAM MR*. HJ. 0TS32-08SS EBlI fi-B30Q attorn*** fom Third-Party Defendant < Monsanto Company I SUPERIOR 1W OF SBf 3mSf ' LAW DIVISION: MIDDLESEX COUNTY DOCKET NO. L-073370--87 CITY OF PERTH AMBOY, a Municipal corporation Plaintiff/Counter claim Defendant, v. Civil Action 'AFFIDAVIT OF DAVID M. MOORE, II WXICO CORPORATION, Defendant/Counterc3 aimant/Third-Parhy Plaintiff, v. MONSANTO COMPANY , t al. , Third-Party Defendant*-., STATE OF NORTE CAROLINA. ) ) COUNTY OF GUILFORD } SS. : DAVID M. MOORE, II, being duly sworn according to law, ! upon his oath, deposes and sv : >k TQWOLDMON0049108 one another, which clocuaauts should be classified in each subject,. 4. After tbs classification system had bean substantially completed, representatives trained by Hr. Massif and me, and! i working under our instructions and supervision, classified and5 summarized each of the documents which we had selected for inclusion in the computerized data base. 5. Hi documents Hr. lass if and I decided not to include in the computerized data base were retained by Monsanto, and based on my information and belief have been produced when responsive to discovery requests served on Monsanto. , 6. Any disclosure of the contents of the PCB data base or - of the classification system used in its organization wouldj necessarily disclose Mr. Massif's and my own legal opinions andj litigation strategy. SWG3M TO AND SUBSCRIBED before me this day of July, 1992. " TOWOLDMONOQ49109 J? I 1. I as licensed to practice law in Horth Carolina, and am a partner in the law fir of Snath. Helms Maliiss & Moore, in Greensboro, Uortb Carolina. Sin.ce 1571 I have, represented Monsanto as an attorney in litigation involving the manufacture and sale by Monsanto of polychlorinated, biphenyls (B?CBs,!). I have personal knowledge of the statements made in this affidavit, unless otherwise noted. 2, Because of my prior experience in representing Monsanto in PCB litigation, I was asked by Joseph G. lassif, then a litigation attorney in Monsanto's law department, to assist him during 1982 and 19S3 in collecting and organising the company's PCB-reXated documents in connection with pending and anticipated PCS litigation. 3. After selecting what we considered to be the significant documents for pendonq and anticipated PCB-related litigation, Mr. Massif and I drafted a subject matter classification system to be used in the organization and retrieval of the selected documents. That system was based upon our professional assessment of factual and legal issues we considered to be important for pending cases and that we projected would arise in future PCB litigation. A major purpose of the classification system was to enable Monsanto's attorneys to assemble the significant documentary evidence in our possession in support of our defense strategies ( and as a result the system does contain and would disclose our legal opinions as to which subject: areas are important, how the subject areas relate to -2- s TOWOLDMONOQ491