Document wL8wg31XBy5E3y1YBgBr79eB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION 1 BARBARA S. CARTER, ET AL C.A. No. 88-0172-R VS. C.A. No. 88-0505-R SHELL OIL COMPANY, ET AL C.A. No. 88-0124-R DEPOSITION OF RICHARD O. FAULK Between the hours May 16, One Shell Houston, of 9 1991 Plaza Texas AM and 4 PM Jerry Kelley, Texas CSR No. 2004 Nell McCallum & Associates Inc. 2900 Smith, Suite 104 Houston, Texas 77006 (713) 523-3767 2 For the Plaintiffs: Ronald Simon Attorney at Law Connerton,* Ray & Simon 1920 L Street, NW Fourth Floor Washington DC 20036-5004 Herschel L. Hobson Attorney at Law Law Offices of Herschel L. Hobson 2190 Harrison Beaumont TX 77701 JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 3 For the Defendant Shell Oil Company: S. D. Roberts Moore Attorney at Law Gentry Locke Rakes & Moore Colonial Plaza Post Office Box 1018 Roanoke VA 24005 G. Edward Pickle, Sr. Litigation Attorney Raymond T. Collins, Attorney H. H. Saum III, Attorney Legal Department Shell Oil Company One Shell Plaza Post Office Box 2463 Houston TX 77002 JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 4 1 RICHARD O. FAULK, 2 being first duly sworn or affirmed, testified as 3 follows: 4 5 EXAMINATION BY 6 MR. SIMON: 7 Q Would you state your name, please? 8 A Richard Oran, O r a n, Faulk, F a u 1 k. 9 Q I'm going to hand you a document marked 10 Deposition Exhibit 1. 11 [Exhibit 1 marked]. 12 MR. MOORE: Is this the 30(b)(6) notice? 13 MR. SIMON: Yes. 14 Q Would you identify that, please? 15 A It appears to be a notice of deposition, 16 issued under Rule 30(b)(6), to Shell Oil Company 17 corporate representative. 18 Q When is the first time you saw that? 19 A Yesterday. 20 Q Who showed it to you? 21 A Counsel for Shell. 22 Q Could you -23 A Mr. Moore. 24 Q Mr. Moore? 25 And where are you currently employed? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 5 1 A I'm with Akin, Gump, Strauss, Hauer & Feld 2 in Houston. 3 Q Are you an employee, a partner? What's 4 your status? 5 A I'm of counsel, an employee. 6 Q And you have you made an appearance in this 7 Carter case at all? 8 A No. 9 Q Spoken to any of the lawyers in the Carter 10 case? 11 A Only regarding this episode here. 12 Q When is the first time you spoke to any of 13 the lawyers in the Carter case? 14 A Do you mean about the Carter case? 15 Q No. Anytime. The first time you ever 16 spoke to any of the lawyers in the Carter case. 17 A I suppose -18 MR. MOORE: Well, why don't you identify 19 the lawyers in the Carter case? 20 MR. SIMON: Okay. 21 Q When is the first time you spoke to Jeff 22 Sherwood? 23 MR. MOORE: About anything? 24 MR. SIMON: That's correct. 25 MR. MOORE: Okay. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 6 1 A Sometime last year, I believe. 2 MR. SIMON: 3 Q What did you speak to him about? 4 A Employment. 5 Q Employment where? 6 A At Akin Gump. 7 Q Were you seeking a job? 8 A At the time, yeah. 9 Q And was he interviewing you? 10 A Yeah. 11 Q At the time of that interview, did he 12 mention to you that he was representing Shell in 13 these cases? 14 A I don't recall. 15 Q Did he mention to you that he was 16 representing Shell in cases in.which benzene 17 was alleged to have caused leukemia? 18 A I don't recall that these set of cases were 19 discussed during my interviews there with specific 20 attorneys. I didn't know which specific attorneys 21 were working on the file. 22 Q I'm going to ask you the question again. 23 Did he discuss with you -- did Mr. Sherwood discuss 24 with you the fact that he was representing Shell in 25 cases in which benzene was alleged to have caused JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 7 1 leukemia? 2 A I don't recall specifically discussing that 3 with Mr. Sherwood during my interview, no. 4 Q Did you discuss it with him any other time 5 prior to the past week? 6 A Yeah. 7 Q When was that? 8 A I can't give you specifics. On a couple of 9 occasions talking about the fact that there was some 10 discovery dispute in the case. 11 Q When is the first time you remember 12 discussing with Mr. Sherwood anything about these 13 cases? 14 A With -- specifically with Mr. Sherwood, the 15 fact that he was working on cases for Shell which 16 involved benzene leukemia, probably sometime before 17 I came to work at Akin Gump. But I don't know 18 exactly when. 19 Q Was it in the course of your interview that 20 you discussed it with Mr. Sherwood? 21 A I don't know if it was in interview. 22 We had numerous conversations prior to the time 23 I started to work there. 24 Q How many conversations did you have with 25 Mr. Sherwood before you went to work there, sir? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 8 1 A Four or five. 2 Q Where did those take place? 3 A Houston, Washington and telephone. 4 Q And what did you discuss with him about 5 the benzene leukemia cases during those four or 6 five conversations? 7 A Just the fact that they were representing 8 Shell in benzene cases. 9 Q What else was discussed? 10 A Nothing. 11 Q No more than the fact? 12 A No, no more. 13 Q You didn't ask where the cases were filed? 14 A I knew where the cases were filed already. 15 Q How did you -16 A From Mr. Hobson. 17 Q You knew from Mr. Hobson? How did you know 18 from Mr. Hobson? 19 A I had had conversations with Mr. Hobson, 20 when I was in Beaumont, regarding these cases. 21 Q In what context? What were you doing in 22 Beaumont? 23 A I was practicing law there. 24 Q Where were you practicing law there? 25 A With Strong, Pipkin, Nelson & Bissell. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 9 1 Q Did they represent-the defendants in these 2 cases? 3 A Not in these cases. 4 Q In what context did Mr. Hobson -- what did 5 Mr. Hobson tell you about these cases when you were 6 at Strong? Excuse me for not getting the rest of 7 the names right, sir. 8 A That the cases probably could be settled 9 for a lot less than what you were asking for them. 10 Q How did this conversation come about? it A I knew about these cases from basically 12 being back over at Shell and doing some other work, 13 and it just happened to come up. I heard that he 14 was involved in some of these cases, I heard that 15 there were some motions for summary judgment pending 16 in the cases, and we talked about that at the 17 courthouse one day after a hearing. 18 Q I believe you said you knew about them from 19 being over here at Shell. Could you elaborate on 20 that for me? 21 A I did some legal work for Shell while I was 22 at Strong Pipkin, and occasionally that required me 23 to be here, and I saw people that I had worked with 24 in the past, found out a little bit about what cases 25 might be pending against the company in general JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES PNC. 10 1 conversation. 2 Q Tell me more about that. What did you 3 find -4 MR. MOORE: Well, now, tell me -- I've 5 allowed you to proceed with what conversations he 6 had with Sherwood because I assumed you wanted to 7 try to show some bias or some prejudice, but on this 8 line of questioning that you are going into right 9 now, what has that got to do with anything? 10 MR. SIMON: The subject matter, as we all 11 know, is misconduct. 12 MR. MOORE: I understand. But you are now 13 talking about things that involve his duties as a 14 lawyer while with Shell that have nothing to do with 15 this case that I know of. That's why I'm just 16 asking you. If you show me some -- some relevancy 17 to anything, then we can deal with it. 18 MR. SIMON: Let me explain where we're 19 going. 20 MR. MOORE: Okay. 21 MR. SIMON: One of the questions is Shell's 22 misconduct as a defendant in this case. The other 23 questions that are both different and included in 24 that are the misconduct of Mr. Faulk both as a Shell 25 employee, as an Akin Gump employee and as an JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 11 1 2 MR. MOORE: Excuse me. There's no 3 suggestion of misconduct by him as an Akin Gump 4 employee. 5 MR. SIMON: I certainly just said it. I 6 more than suggested that. 7 MR. MOORE: That's not one of the areas of 8 inquiry that the judge has allowed you to go into. 9 The judge has allowed you, as I understand it, to go 10 into these -- these boxes or these documents that 11 Mr. Faulk supposedly segregated, the reasons for it, 12 what they are, how they happened to be put there, as 13 well as the public statements made by Mr. Faulk at a 14 meeting when some materials were distributed that 15 you showed to Judge Kiser when we were in Danville. 16 Now, other than those issues, I don't know that 17 there's anything else that's open to discovery. 18 MR. SIMON: Well, the thing that is open to 19 discovery, sir, is in the judge's order. 20 Let's mark it No. 2, please. 21 [Exhibit 2 marked] 22 MR. SIMON: 23 Q Exhibit 2 I will read to you, Judge Kiser's 24 order, dated the 25th of April, 1991, Page 2: "I 25 find the plaintiffs have a right to discover the JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 12 1 extent and purpose of the document segregation." 2 And as we discussed with Judge Kiser in the -3 MR. MOORE: All right. Now you tell me 4 where anything says Mr. Faulk's conduct -- that 5 anything suggests that he has done anything wrong. 6 MR. SIMON: This is what we're here to find 7 out, sir. 8 MR. MOORE: Show me one word in there that 9 says that Mr. Faulk-'s conduct is subject to any 10 question. 11 MR. SIMON: Sir, that's exactly wnat we re 12 here to find out. 13 MR. MOORE: There's nothing in that order 14 that says that it's subject to question or that you 15 may inquire into it. 16 MR. SIMON: If there wasn't something 17 questionable, we wouldn't be here. Discovery has 18 been closed for many months. 19 MR. MOORE: That's a matter open to serious 20 debate, as to what we're here for and why we're 21 here. If you will ask questions that deal with the 22 subject matter, then that's -- I'm not going to -23 you're not going to hear any objection from me. 24 But if we're just going to go into issues of what 25 he does at Akin Gump, that has nothing to do with JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 13 1 any of this, and I'm going to object. 2 And to the extent -- I mean, he's here as a 3 30(b)(6) witness, meaning he is going to speak for 4 Shell about -- and the reason he has been put up here 5 is because he's the person who put these documents 6 away. He's the only person who can answer. There's 7 nobody at Shell who can answer with respect to 8 that. Now, why don't you inquire into those 9 things? That's what we're here for. 10 MR. SIMON: We'll also inquire into those 11 when the time gets appropriate. But at this point 12 we need to know who else knew about it because the 13 inquiry is going to be -14 MR. MOORE: You haven't even asked him 15 about those documents yet. 16 MR. SIMON: I'm going to be here for a few 17 days, sir. I'll get a chance to ask him about those 18 documents, believe me. They're on the list. 19 MR. MOORE: And you may ask him who else 20 knew about them. But that's not what you're asking 21 him right now, Mr. Simon. 22 MR. SIMON: I'm certainly asking the 23 predicate. I asked him about all his conversations 24 with Mr. Sherwood -25 MR. MOORE: And I didn't object to that. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 14 1 MR. SIMON: Mr. Moore -2 MR. MOORE: Now you are asking him what he 3 did as a lawyer in Beaumont, Texas. 4 MR. SIMON: Well, let me be clear about 5 this. The misconduct of Mr. Faulk is not the only 6 reason I'm here. The misconduct of Mr. Sherwood, 7 everybody in Akin Gump, Mr. Collins, we're going to 8 find out who knew about these documents -9 MR. MOORE: Please go forward and ask your 10 questions, but be advised that if you ask questions it that are outside the scope I will make an 12 appropriate objection and, where proper, direct the 13 witness not to answer. That's the only way we can 14 do it. 15 MR. SIMON: Since we're dealing with issues 16 of credibility and Mr. Faulk has been proffered as 17 the 30(b)(6) witness, and since we noticed -18 MR. MOORE: Who said we're dealing with 19 issues of credibility? 20 MR. SIMON: I just did. Those were my very 21 words. Do you want the court reporter to read it 22 back? 23 Why don't you read back what my words were, 24 sir. 25 MR. MOORE: No. Just because you said you JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 15 1 were going to deal with it doesn't mean that's a 2 proper subject matter for this deposition. You 3 would like to deal with a lot of things. You wanted 4 the judge to reopen discovery, and he wouldn't do 5 that either. 6 MR. SIMON: Okay. Let's mark No. 3. 7 Protective order motion was filed by the 8 defendants. Mark that No. 3. I'll get it here in 9 just a second. Shell's motion for protective 10 order. 11 [Exhibit 3 marked] 12 MR. SIMON: Let the record reflect that 13 there was an oral argument on this motion Tuesday 14 of this week, and the judge granted, after lengthy 15 discussion, protective order with regard to the 16 following three subjects: 17 He said that we could not inquire into 18 subjects other than benzene. 19 He said that we could not inquire as to 20 Mr. Faulk's document in terms of who at Shell had 21 authority and gave authority to publish that 22 document. 23 And he finally gave a protective order with 24 regard to at the meeting that Mr. Faulk attended on 25 some date at which this paper was presented, JERRY KELLEY, C5K NELL MCCALLUM & ASSOCIATES INC. 16 1 conversations at that time, and at that time only, 2 between lawyers but not in front of other people. 3 That protective order raised any number 4 of points which you are now raising which were 5 specifically denied by Judge Kiser only this week. 6 MR. MOORE: Mr. Simon, I don't think that 7 anything that I raise has anything to do with 8 anything in the matters set forth in the protective 9 order. Obviously we disagree. We can argue all day 10 long, but go ahead and ask whatever questions you 11 wish to ask and we'll proceed as orderly as we can. 12 MR. SIMON: Why don't we just, before we 13 proceed, since we haven't yet got to whether he is 14 here as a 30(b)(6) witness, if he is going to be 15 one, I'd make the request that Mr. Collins leave, 16 since he's going to be deposed this afternoon on 17 factual matters that may involve a conflict in 18 factual testimony and he'll be a factual witness 19 in this case, as will Mr. Faulk. I think it's 20 appropriate at this point that Mr. Collins leave, 21 not listen to the testimony of the other fact 22 witness. And I'm going to leave for a second so 23 you can consider that. 24 MR. COLLINS: We already have. I'm here 25 as the designated company representative for these JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 17 1 depositions this week. As you well know, I am the -2 MR. MOORE: Okay. 3 He's here as a company-designated 4 representative, and the company is entitled 5 to have a representative here. 6 MR. SIMON: I'm going to state for the 7 record that I am formally requesting, despite 8 whatever considerations you've made, that because 9 you are going to bea fact witness in this case, 10 as Mr. Faulk is, that you leave the deposition, 11 allow us to have separate inquiries. Mr. Hobson 12 and I will leave the room for a minute and allow 13 you to reconsider that. 14 MR. MOORE: There's no need for you to 15 leave the room, because he is not going to leave. 16 He is here as the company's designated 17 representative. If you are saying we can't have 18 but one representative, then Mr. Collins is going 19 to be that representative. 20 MR. SIMON: No, we're asking that 21 Mr. Collins leave, since he's a fact witness. 22 MR. MOORE: And we're denying your request. 23 MR. SIMON: We'll leave and give you a 24 chance to -- 25 MR. MOORE: You don't need to leave. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 18 1 MR. SIMON: We'll do it anyway. 2 [Recess] 3 MR. SIMON: Back on the record. 4 Q Now, would you tell me about your 5 conversations with Mr. Sherwood regarding this case? 6 A I think I've described -- I mean, what do 7 you want to know about it? 8 Q I want to know the date of the first 9 conversation. 10 MR. MOORE: I object. It's been asked and 11 answered. But if -12 A I don't remember the date. 13 MR. SIMON: 14 Q Well, what do you remember about the first 15 conversation? 16 MR. MOORE: Didn't he say it was related to 17 employment? Hasn't he already said that, Ron? 18 MR. SIMON: I think he did, Rob. But then 19 I think he remembered a little more -20 MR. MOORE: Okay. 21 MR. SIMON: I just want to get his complete 22 memory. I'm really not trying to badger him. 23 A As I recall, the conversation addressed the 24 existence of the case. 25 MR. SIMON: Okay. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 19 1 Q What else did you ever come to learn about 2 it? 3 A Nothing. I mean, not -- I don't know 4 exactly what you mean. I've come to learn a lot 5 up till today, you know, with all this stuff that's 6 going on here. 7 Q Could we, for the purposes of just 8 understanding each other and clarifying our 9 communication, when we talk about "this stuff" we're 10 talking about the discovery dispute. Is that fair? 11 A No . . 12 Q No? 13 A No. Let's just talk. 14 Q Okay. Fair enough. 15 Then, other than in your seeking employment 16 and learning the case existed, what's the next thing 17 you learned from Mr. Sherwood about it? 18 MR. MOORE: "About it" meaning the case? 19 MR. SIMON: The case, yes. 20 A As I recall, that there was some dispute 21 regarding discovery. 22 MR. SIMON: 23 Q When did you learn that? 24 A I don't know. In the last month or so, I 25 guess. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 20 1 Q And prior to the last month you didn't know 2 anything about the case? 3 A Not from Mr. Sherwood. 4 Q Well, tell me everything that you knew 5 about the case prior to your conversation with 6 Mr. Sherwood last month. 7 MR. MOORE: Excluding what he has already 8 told you about Mr. Hobson and all of that? 9 MR. SIMON: Right. 10 Q Don't repeat what you said -- did Mr. Hobson 11 tell you anything else about it at that time other 12 than what you mentioned? 13 A I believe he told me it wasn't a pure 14 benzene case, that it was a rubber solvent case. 15 Q Anything else Mr. Hobson told you? 16 A Not specifically. I remember a discussion 17 at the courthouse regarding the motions for summary 18 judgment and perhaps some settlement parameters that 19 might be appropriate. 20 Q What do you remember about those? 21 A I've already told you. 22 Q Now tell me, other than during your job 23 interviews with Mr. Sherwood, your learning of the 24 existence of the case and your conversations at 25 the courthouse with Mr. Hobson that you have just JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 21 1 described to me, what else did you know about this 2 case prior to your discussions with Sherwood 3 approximately a month ago? 4 A I knew that Akin Gump was representing 5 Shell and others in this case. 6 Q How did you know that? 7 A Just from some conversations when I was at 8 Shell working on other cases. 9 Q So when you mention these conversations, 10 let me see if I've got the time frame right. This 11 is when you were -- after you had left Shell's 12 employment -13 A That's right. 14 Q -- but before you had entered Akin Gump's 15 employment? 16 A That's right. 17 Q You were over here at this One Shell Plaza 18 and in your conversations you learned that Akin Gump 19 had these cases? 20 A Yeah. 21 Q What did you learn about it? 22 A That's about all I learned. 23 Q When did you leave Shell's employment? 24 A February 28th was my last day in the 25 office. That's 1990. I remained on the payroll -- JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 22 day, after 3 that. Pipkin? 5 6 A Q 7A 8Q ving was, 10 the starting at discovery did with 15 may you anybody have Cliff Zatz. atz? the 20 case during the in 24 A 25 Q March When Mid-November When 12th, did did I you you Monday before think, leave 1990. start Thanksgiving, 1990. there? at a t Akin Gump? and that they were representi Once, Where NELL twice did you JERRY MCCALLUM maybe. see KELLEY, & him? CS AS 23 1 A Once in Washington and once here. 2 Q Did you discuss anything about these cases 3 during that time? 4 A No. 5 Q Did Zatz ask you how to get more Shell 6 business for Akin Gump? 7 A I don't recall whether Cliff asked me 8 that. It was certainly something that Akin Gump 9 wanted to do. 10 Q Who do you remember at Akin Gump asking you 11 that? 12 A Asking me what? 13 Q How to get more Shell business for Akin 14 Gump. 15 A I don't think anybody ever asked me that 16 specific question. 17 Q Well, you sort of smiled. I don't want to 18 characterize your facial expressions, but, I mean, 19 how did you know this was something that Akin Gump 20 was interested in? 21 MR. MOORE: Because -22 MR. COLLINS: Is this relevant? 23 MR. MOORE: No, it's not relevant. 24 A Every law firm is interested in expanding 25 its client base, including you, I presume. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES TNC. 24 1 MR. SIMON: 2 Q What did you know about Akin Gump's desire 3 to represent Shell in toxic tort cases? 4 MR. MOORE: Mr. Simon, you know, you are 5 getting into areas that I don't understand the 6 purpose for, unless you are trying to embarrass the 7 witness or just discuss things that are of personal 8 interest to you. We know Akin Gump is counsel to 9 Shell in these cases. I mean, we know that any law 10 firm is interested in representing Shell. 11 MR. SIMON: Go ahead. You can answer the 12 question. 13 A What was the question? 14 MR. SIMON: 15 Q The question was: How did you know that 16 Akin Gump wanted to represent Shell? 17 MR. MOORE: He's already answered that 18 question. 19 MR. SIMON: 20 Q Did you know anything specific about Akin 21 Gump's desire to represent Shell in toxic tort cases 22 other than the general desire of every lawyer to 23 have more clients? 24 A No. 25 Q During your interviews with Akin Gump, JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 25 1 did they ask you about your ability to get Shell 2 business for Akin Gump? 3 A It was discussed. 4 Q What did you tell them? 5 A I told them I didn't think I could help 6 them. 7 Q Did you tell them that you had expertise in 8 the defense of benzene leukemia cases? 9 A I think they knew that. I don't think I 10 told them that specifically. 11 Q How did they know that? 12 A I don't know. 13 Q What comments did anyone at Akin Gump 14 make to lead you to believe that they knew you 15 had expertise in benzene leukemia cases? 16 A I suppose in the overall employment process 17 that my particular experience was discussed. I 18 can't give you any specific conversations or events 19 where that was discussed. 20 Q What experience did you tell them about in 21 benzene leukemia cases? 22 MR. MOORE: Excuse me, Mr. Faulk. I 23 suggest to you that what you told them was your 24 experience in benzene cases has nothing to do with 25 any issue in this case. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES rNC. 26 1 You may ask him what his experience was, 2 but what he said to Akin Gump on that score isn't 3 relevant to -- isn't even conceivably relevant to 4 any issue. 5 MR. SIMON: It's just so relevant -6 MR. MOORE: I mean, there's no claim that 7 Akin Gump is guilty of any misconduct in this case. 8 MR. SIMON: The fact is, sir, that the 9 materials that were known to exist weren't 10 produced. We're here to find out why they weren't 11 produced and -12 MR. MOORE: And you will find that out 13 as soon as you ask Mr. Collins and the people who 14 know. This man doesn't know why they weren't 15 produced. He wasn't even here. 16 MR. SIMON: We'll find out whether he 17 knows. 18 MR. MOORE: Then ask him those questions. 19 We'll answer every question you ask on that score. 20 MR. SIMON: 21 Q What experience did you tell Akin Gump you 22 had in benzene leukemia cases? 23 MR. MOORE: I suggest again, Mr. Faulk, 24 what you said to Akin Gump was your experience has 25 nothing to do with any issue in this case. If he JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 27 1 wants to ask you whether you talked to him about any 2 documents, any suggestion that documents be hidden 3 or destroyed or something of that sort, I 'guess 4 that's fair inquiry. But what you said to them 5 trying to get employment is not in issue in this 6 case at all, and as an individual person you decide 7 yourself whether or not you want to answer it. It's 8 not germane or relevant. 9 A I don't recall any specific conversations. 10 MR. SIMON: it Q What was your experience with benzene 12 leukemia cases? All the experience. Why don't 13 you start from the beginning and tell us all the 14 experience you have had with benzene leukemia 15 cases. 16 A Okay. 17 MR. MOORE: You can summarize. 18 A I'll do my best. 19 I was a member of the Shell Litigation 20 Division and was charged with defending cases on 21 a lead counsel basis that were assigned to me. 22 And from time to time I was assigned the task 23 of defending allegations against the company of 24 injuries or deaths associated with benzene exposure. 25 MR. SIMON: JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -I-NC. 28 1 Q Tell me about the cases that you worked on. 2 Rob, do you want me to stop while -3 MR. MOORE: I'm sorry. I thought maybe you 4 wanted some coffee. We've got some in here now. 5 THE WITNESS: Yeah. I'd like some. 6 [Discussion off the record] 7 A Let me finish my last answer before I 8 answer your other question. Also from time to time 9 I was assigned the responsibility of organizing 10 joint defenses to cases in which Shell was named as 11 a party, multiple-defendant cases. And once those 12 cases were organized, they would be transferred to 13 another attorney to manage. 14 MR. SIMON: 15 Q Why don't you tell me about the cases that 16 you worked on, benzene leukemia cases, while you 17 were here. 18 A I can't recall all the specific names 19 associated with them. I can give you some examples 20 if you like. I can't tell you everything. 21 Q I don't want you to give me examples. What 22 I want you to do is tell me what you do remember. 23 I'll break it down case by case. What's the first 24 case you remember, where was it, who was the 25 plaintiff -- JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 29 1 MR. MOORE: Let me suggest this. I think 2 you may ask him about any cases that were filed as 3 a matter of public record and those kinds of things, 4 but references to cases that weren't filed or with 5 reference to particular advice that the witness may 6 have given to Shell, we will assert an attorney7 client privilege with respect to those matters. But 8 go ahead and ask specific questions, and if we have 9 a specific objection or want to assert a specific 10 privilege, that will be done in response 11 to your question. 12 MR. SIMON: I think that's appropriate. 13 Certainly one thing I do not want to ask you about 14 is if there was a case that was never filed and you 15 gave legal advice about that case. I don't want to 16 know about it. I'm not trying to impinge upon that 17 area. 18 Q Which cases do you remember? 19 A The first case I remember is a case called 20 21 Q Could you spell it for me, sir? 22 A P o s t o n, I believe. I believe the 23 plaintiff's first name was Sidney. 24 Q What was the nature of the exposure there? 25 A The allegation was that he was a dockworker JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 30 1 for -- on -- a pumper gauger, as I recall, for 2 Monsanto who was exposed to benzene in the course 3 of loading and unloading barges. And allegedly as 4 a result of that he developed multiple myeloma. 5 Q Do you know where that case was filed? 6 A It was in Harris County. 7 Q What was your role in that case? 8 A I was for -- I can't recall whether it was 9 a year, it may have been less than a year, lead 10 counsel for Shell on the case. 11 Q Was there outhouse counsel? I'm sorry. 12 What should I call it? What do you call counsel 13 like Mr. Moore, who is not -14 MR. COLLINS: Outside counsel. 15 MR. SIMON: Outside counsel? Thank you, 16 Ray. 17 A Not at that time. There were codefendants, 18 of course, in the case. The case ultimately became 19 a joint defense sometime a year or so into the 20 case. And at that time it was transferred away, 21 outside counsel was retained and I had nothing 22 further to do with the case. 23 MR. SIMON: 24 Q The phrase you used earlier and now again 25 the phrase "lead counsel," do you use the phrase JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 31 1 "lead counsel" only in instances where there is no 2 outside counsel? 3 A No. No. I mean it's the question of who 4 is, for lack of a better word, first-chair counsel 5 in the case, or the person responsible for appearing 6 in court primarily for the company. 7 Q So let's just take for a hypothetical, so I 8 understand your use of the word, let's take the case 9 in front of us, the Carter case, in which there's 10 Akin Gump and Mr. Moore's firm, both outside11 counsel. Does Shell have lead counsel in that case? 12 A I have no idea. I'd have to ask them. I 13 don't know what his role is. I haven't discussed it 14 with him. I don't know what -- how he relates to the 15 Akin Gump people. Maybe we could use a better 16 example. 17 Q Let's take this case, if you'll allow me to 18 just change it to a hypothetical. If there were a 19 case where there were outside counsel, would Shell -20 and I don't know how to -- let me give you a set of 21 questions. Would there necessarily be a lead 22 counsel, would there never be a lead counsel 23 in-house, or might there or might there not be 24 lead counsel in-house? 25 MR. MOORE: Mr. Simon, why don't you ask JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 32 1 him about the relationship with Mr. Tyler? That may 2 give you an example of what lead counsel is and how 3 he worked with outside counsel. Because you are 4 going to talk with Mr. Tyler tomorrow. You can ask 5 him about all that. 6 MR. SIMON: 7 Q Within the meaning of that, maybe 8 Mr. Moore's hypotheticals, but I'm trying to 9 understand whether "lead counsel" applies to 10 cases where you have outside counsel. And 11 maybe you can give me -12 A It does at times. 13 Q It does at times? 14 A Sure. 15 Q Is there a case where there isn't a lead 16 counsel even in-house? 17 A Sure. When outside counsel is lead 18 counsel. 19 Q So -- so there's only one lead counsel in a 20 case? Is that what you are saying? 21 A As I use that term, that's true. 22 Q And "lead counsel" means the attorney who 23 makes the majority of the appearances in court? 24 A I think that's the way I'm using it. 25 Q That's what I want to know, how you are JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 33 1 using it. That's all I wanted to know. And what 2 was the result of the Poston case? Do you know? 3 A I understand it was settled. 4 Q Do you know what work you did in it? 5 A [Moving head up and down] 6 Q What kind of work did you do? 7 A I took the plaintiff's deposition, filed 8 some motions, written discovery, and responded to 9 a document production. 10 Q What was the process by which you responded 11 to the document production? By that I mean you got 12 it from the plaintiff. How did you conduct it? 13 A It was rather typical. We had certain 14 objections, as I recall, that we resolved with the 15 plaintiff's counsel by agreement. I think, but I'm 16 not sure, that one of the objections may have been 17 judicially resolved. 18 Once the parameters of the document 19 production were decided by agreement and by court 20 ruling, the documents were produced. Searched for, 21 identified and produced. 22 Q Is it your testimony, then -- let me see if 23 I've got the order right -- that first you do the 24 objections and resolve the parameters before you 25 conduct the search? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 34 1. A That's certainly, I think, the most 2 appropriate way if you.have objections. 3 Q Maybe you can explain to me how you make 4 objections before you look for the documents. 5 A I can't explain that to you. 6 Q But you are saying it's your practice to 7 make the objections first, before you conduct the 8 search? 9 MR. MOORE: He said if he has objections. 10 MR. SIMON: I think he said it was the 11 standard practice to make the objections, but -12 MR. MOORE: I think his answer -- the court 13 reporter can always read it back. I think he said 14 if he had objections he made them. But go ahead. 15 A Well -16 MR. SIMON: 17 Q Is it your practice to make the objections 18 before you do the search? 19 A If there are objections that I'm aware of 20 that can be made at that time, sure. 21 Q And you make them before you make the 22 search? 23 A Before you actually go and search the 24 files, yes. 25 Q Right. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 35 1 And in the Poston case, which you've 2 identified as the first benzene case you handled -3 A That I remember. 4 Q That you remember handling, thank you. 5 Did you have any prior knowledge at that point as to 6 what might be in the -- what was in the Shell files 7 about the dangers of leukemia? 8 A To some extent. 9 Q What extent? 10 A I had seen some of the company's safety 11 materials as the case was commenced, I had seen some 12 information, had some conversations, I'm sure, with 13 people in-house and out. So I had some idea, I'm 14 sure. 15 Q Well, prior to the case, what I had asked 16 you -- and I appreciate your answer -- was that prior 17 to this case being commenced at all, did you have 18 any knowledge of what was in the Shell files about 19 the dangers of benzene? 20 A As a general matter, sure, I had some idea, 21 but -22 Q What I want to know is how you got it prior 23 to being involved in this case. 24 A I don't really recall specifically. I had 25 an interest in toxic tort litigation prior to that. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 36 1 Q Are there any materials that you were given 2 in-terms of a booklet or a training session? 3 A No, I don't remember anything like that. 4 Q But you knew you had some general knowledge 5 of what was in Shell's files prior to that case 6 being begun, but you don't know what it was? 7 A I had some idea of -- I guess the best 8 way to put it is the location and the types and the 9 potential volume of documents that might be involved 10 in -- in responding to any sort of toxic tort case. 11 Document production. 12 Q Now, you said you talked to some people 13 about documents. Who did you talk to? 14 A I don't remember who with respect to that 15 case. 16 Q Did you ever talk to anybody in the legal 17 department about how you would find documents about 18 Shell's knowledge about the hazards of benzene? 19 MR. MOORE: Wait. Excuse me. 20 A Sure I did. 21 MR. MOORE: Did he ever talk to anybody in 22 the legal department? 23 MR. SIMON: Right. 24 MR. MOORE: Well, you know, you are getting 25 into work product of a lawyer in the conduct of JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -I-NC. 37 l litigation. And you're not entitled to get into 2 that. I mean, if you are -3 MR. SIMON: I believe that specifically 4 that's exactly what Judge Kiser ruled, that the 5 work product does not -6 MR. MOORE: Well, I don't think -7 MR. SIMON: -- does not pertain. 8 MR. MOORE: -- the question of the Poston 9 case or any other case that this gentleman worked on 10 was ever discussed with Judge Kiser. Now, I suggest 11 that there should be no disagreement among us as to 12 whether or not what he discussed with other lawyers 13 at Shell in anticipation or in preparation for 14 litigation is work product. 15 MR. SIMON: Work product, privilege -- 16 MR. MOORE: That's protected from 17 discovery. 18 MR. SIMON: -- is protected from discovery, 19 and there's an explicit exception when the subject 20 is the conduct or misconduct of the attorneys. And 21 that is what we are inquiring about. 22 MR. MOORE: All right. Well, I thought we 23 had resolved that, but perhaps we didn't. I didn't 24 know that this gentleman's conduct was ever at 25 issue. The only question at issue in terms of JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES TNC. 38 1 conduct is whether or not Shell should have told 2 you about the documents at issue having been 3 segregated. That's the only question. And this 4 gentleman wasn't even employed by Shell when those 5 events occurred. Now, you know, again, that's -6 MR. SIMON: I'm not going to mince words. 7 We've both stated our positions a few times. I 8 appreciate yours, and I think you've heard mine. 9 Q Let's go back to what it is that you knew 10 at the time of the Poston case about what was in it Shell's files about their knowledge of the hazards 12 13 A All I can recall is having seen some of 1.4 the MSDSs and that sort of stuff, and having had 15 various conversations regarding where documents were 16 and where they might be located, things like that. 17 Q When did Poston begin? Do you know? 18 A I can't give you a specific. I would say 19 it was approximately 1983. 20 Q Who did you have conversations with to find 21 out where the documents might be? 22 A I don't recall specifically who I talked 23 to. 24 Q Well, what departments were they? Did 25 you go to the legal department? Did you go to a JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES .INC. 39 l librarian? I'm trying to find out how you find 2 these things out when you have the job. 3 A Generally the conversations would be with 4 employees of the Health, Safety & Environmental 5 Department. 6 Q Is that where all the records regarding 7 Shell's knowledge of the hazards of benzene are, 8 to your knowledge? 9 A No. 10 Q Well, where else would you look besides the 11 Health, Safety & Environmental Department? 12 A Well, I mean, it could be -- documents could 13 be anywhere. I mean, I can't speculate for you. 14 There's -- 15 Q Where else did you look? 16 A In Poston, I think the parameters of the 17 agreement did not require me to look any further 18 than the Health, Safety & Environmental Department. 19 Q And you reached that agreement before you 20 looked anyplace else? 21 A And perhaps -- 22 Q Wait. Do you want to answer that for me? 23 A Do you want to let me finish my answer to 24 your first question? 25 Q Please. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 40 1 A And perhaps the Marine Transportation 2 Department as well. 3 Q Now would you answer my next question? Did 4 you reach the parameters limiting your search before 5 you looked any other places? 6 A I don't remember. 7 Q You don't remember determining whether 8 there was anything any other place before you 9 reached the agreement, do you? 10 A I don't really understand your question. it Q Well, you could have looked and found out 12 where the information generally was and then made 13 objections and tried to reach an agreement or you 14 could have tried to draw the line before you looked 15 and saw what was there. I'm trying to understand 16 what you did. 17 A I don't recall which came first. 18 Q When you went to HS & E to look at the 19 documents, where is that specifically? 20 A In this building. 21 Q What floor? 22 A It varies. I mean, when I was doing this, 23 it was somewhere -- somewhere in the teens. 24 Q Okay. And the documents, could you 25 describe for me, were they in 10 rooms, one room, JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -I-NC. 1 one file cabinet, one drawer? 2 A various locations. 41 3 Q They were in various locations. Now, what 4 about -5 A And also -- there's also a central filing 6 area. 7 Q Now, is the central filing area -8 A At least,-there was. 9 Q There was a central filing area at that 10 time. Does that include everything that was in the 11 separate locations? Or is it in addition to the 12 separate locations? 13 A I presume -- I don't know. We certainly 14 didn't rely upon the central room completely. 15 Q So you went to the central room and you 16 went to other areas? 17 A Sure. 18 Q Give me some sense. What was the extent of 19 the files in the central room you looked at? 20 A Thousands and thousands of files. 21 Q In terms of -- could you give me an estimate 22 of linear feet or some way -- thousands and thousands 23 of files could be 2,000 pages, sir, or it could be 24 10 million pages. 25 A It's closer to 10 million than 2,000. JERRY KELLEY, CSR NELL MCCALLUM &.ASSOCIATES INC. 42 1 Q Closer to 10 million than 2,000. And it's 2 in one floor of this building? 3 A I have no idea whether it's on one floor or 4 whether it was on two floors. I just don't 5 remember. 6 Q Did you look at each of these documents, 7 these closer to 10 million documents? 8 A Me personally? No. 9 Q Well, did-anyone under your supervision 10 look at each of them at that point? 11 A As I recall, we relied upon the persons 12 in charge of that filing system, after having been 13 briefed by us, to locate and pull responsive -14 potentially responsive files for our review. 15 Q And what you are saying is there was a 16 person in charge of various filing systems at 17 HS & E? 18 A There was at that time. I presume there 19 still is. I don't know. 20 Q Do you know who it was at that time? 21 A At that time, I believe it was a lady by 22 the name of Suzanne Funk. 23 Q Do you know if Ms. Funk is still in that 24 position? 25 A No. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES ZNC. 43 1 Q Do you know anybody else that's ever held 2 that position? 3 A No. 4 Q Do you know who holds the position today? 5 A No. 6 Q Did'you go down and review the HS & E files 7 in preparation for this deposition? 8 A No. 9 Q Did you go down and review them in the past 10 month in considering the discovery questions that 11 are at issue in this case? 12 A No. 13 Q Do I understand, then, that you would -14 you would, if you wanted to find out, go to Ms. Funk 15 or the person in her position and that person would 16 direct the search towards other people? 17 A They would assemble a team that would, 18 after having been briefed by the attorney, by me, 19 go and pull the potentially responsive files. 20 Q Are they ever shown an index of the files 21 so they would have some sense of what was there? 22 A No, not with respect to this, no. 23 Q Were you ever shown an index at any point 24 with regard to what was in the HS & E files? 25 A There may be an index. I don't recall ever JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 44 1 seeing one. 2 Q Have you ever heard one discussed? 3 A Yeah. 4 Q What do you recall about that discussion? 5 A Just that there was an index at one point 6 that existed. And that's all I recall. 7 Q But you don't remember ever seeing that 8 index? 9 A I don't remember ever seeing it, no. 10 Q Who was the person who had the index? 11 Ms. Funk? 12 A Yeah, I believe that's correct. 13 Q And your understanding was that that index 14 included the materials in the central file as well 15 as the on es that were not in the central file at 16 HS & E? 17 A I think it was only a central file index, 18 as I recall. 19 Q And your understanding is that there were 20 things in, quote, HS & E files that were not in that 21 central file index? 22 A That's my understanding. 23 Q Do you know if the central file index 24 included the files in corporate medical? 25 A I don't know. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 45 1 Q Do you know if the central file index 2 included the materials from the toxicology 3 department? 4 A I don't know. 5 Q Do you know whether the central file index 6 included the materials that later appeared in the 7 blue vinyl notebook that's discussed in this case? 8 A Index? No, I don't know. They may have, 9 I don't know. I don't know that much about it. I 10 don't know anything about the index. 11 Q Do you know where the Soley documents of 12 1943 are in the HS & E files? 13 A No. 14 Q Did you ever know where they were kept in 15 any HS & E files? 16 A I don't remember where they were kept, no. 17 Q Do you ever know where they were kept? 18 A No. 19 Q Do you remember who found the Soley 20 documents? 21 A No. 22 Q When is the first time you ever saw them? 23 A Mid-1980s sometime they came to my 24 attention. 25 Q Do you remember how they came to your JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 46 1 attention? 2 A No. 3 Q Well, were you browsing through the files 4 to look for yourself? Or how did they come to your 5 attention? 6 A I'd like to be able to tell you that I 7 remember the precise circumstances. I just don't. 8 Q When is the first time you remember seeing 9 them? 10 A Mid-1980s sometime. 11 Q What was the context in which you remember 12 seeing them? 13 A I guess I remember seeing them in the 14 context of -- I don't really remember the exact 15 context, to tell you the truth. 16 Q What do you remember? 17 A I remember looking -- I remember seeing 18 the document. That's what I remember. And I don't 19 really recall -- I think perhaps -- well, I don't 20 want to speculate. I really don't know. 21 Q Did you see it in your office? 22 A It was in the legal department at the time. 23 Q Did you see it pursuant to a search that 24 you had directed? 25 A That's possible, but I don't know. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 47 1 Q Did you ever see it in the HS & E files? 2 A No. 3 Q Do you know, as you sit here today, whether 4 it's in the HS & E files? 5 A Do I know for sure? Yeah. 6 Q How do you know that? 7 A I understand that it's in the study files 8 of HS & E. 9 Q What does-that mean, "the study files"? 10 A It's a separate from the overall documents it that I just described to you. It's a separate file. 12 Q Could you just tell -- what do you mean by 13 the word "study" in this regard? How does it fit 14 into a category called study? 15 A There's a separate filing system that -16 where studies that have been done, proprietary 17 studies and things like that that have been done 18 for the company are kept. 19 Q And that's where the -- at least one copy 20 of the Soley file is? Or to your best knowledge? 21 A Yeah. 22 Q Did you see it there? 23 A No. I've just been told that it's there. 24 Q Who told you that? 25 A I think one of my legal assistants. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 48 1 Q Do you remember which legal assistant? 2 A No. I've had -- there were several that 3 worked on the process. 4 Q In these study files, are the Kettering 5 studies that were begun for API in the late 180s 6 in those files? 7 A I don't know. 8 Q Do you know where references to those would 9 be in Shell's files? 10 A No. it Q Are you familiar with those studies? 12 A Not by name. 13 Q What are you familiar with? 14 A I'm not familiar with them. 15 MR. MOORE: Do you mean what is the 16 universe of knowledge he has or -17 MR. SIMON: 18 Q I'm referring to API retained Kettering 19 to do cancer studies of petroleum workers in the 20 late 170s. And that study, I believe, was never 21 terminated or never completed and brought to 22 fruition with a written report. Are you familiar 23 with that? 24 A Not enough to discuss it with you. I don't 25 even think I know of its existence. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES ANC. 49 1 Q You don't know of its existence? 2 A I don't think so. If you have it, I'll 3 look at it, maybe it will refresh my recollection. 4 Q What other proprietary studies are you 5 aware of in the study files in HS & E? 6 A No specific studies that I can quote to 7 you. 8 Q How large are the proprietary study files 9 in HS & E? 10 A Fairly large, as I understand. it Q Well, could you -- I mean, two feet, 10 12 feet, a thousand? 13 A Thousands of studies. 14 Q Thousands of studies? 15 A Now, they don't all deal with benzene, I'm 16 sure. 17 Q How many proprietary studies have to do 18 with benzene that you are aware of? 19 A I have no idea. 20 Q Do you know how large the proprietary 21 studies section of the HS & E documents are that 22 deal with benzene? 23 A Other than what I've just told you, no. 24 Q Do you know whether all of the proprietary 25 studies that deal with benzene in the HS & E files JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 50 1 have been produced in this case? 2 A I have no idea. 3 Q Have you ever seen a list of the 4 proprietary studies in the HS & E files? 5 A I don't recall ever seeing one, no. 6 Q Are you aware of a list that lists the 7 proprietary -8 A No. 9 Q Are you aware of any list anywhere of 10 the proprietary studies that deal with benzene 11 in Shell's files? 12 A No. 13 Q You've never seen that list? 14 A No. 15 Q Never heard of that list? 16 A No. 17 Q As a person who defended Shell in numerous 18 products-liability cases, you never asked? Did you 19 ever ask whether there was a list of Shell's 20 proprietary studies dealing with benzene? 21 A A list? No. 22 Q Did you ever ask for information about all 23 Shell's proprietary studies dealing with benzene? 24 A For all? No. 25 Q Did you ever ask for information about JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 51 1 Shell's proprietary studies dealing with benzene? 2 A Yes. 3 Q What did you ask? 4 A There was a person that was in charge of 5 that similar to the position that Suzanne Funk had. 6 Procedurewise, when we had a request for that sort 7 of information, we would call that person and that 8 person would generate the studies for us that would 9 be responsive to the request, and they would be sent 10 to us. 11 Q Who was that person? 12 A First name was Barbara. I can't remember 13 her last name. 14 Q But you never saw a list of what was in 15 those studies? 16 A No. 17 Q And as a person who represented Shell on 18 numerous benzene leukemia cases, you never made an 19 inquiry to determine what was in those studies? 20 A That's not true. 21 Q What inquiry did you make? 22 A With respect to on an as-needed basis, on 23 a case-by-case basis, we made requests and we had 24 studies furnished to us. 25 Q But you never made an attempt to find out JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 52 1 generally all the studies that Shell had done on a 2 proprietary basis concerning benzene leukemia?. 3 A The issue never arose. 4 Q And you never made the inquiry? 5 A I did make an inquiry with respect to 6 studies that were responsive and that had to be 7 produced. And they were furnished to me and, as 8 appropriate, they were released. 9 Q And those-were after you had reached 10 an agreement with counsel about limiting their 11 discovery requests, isn't that true? 12 A Sometimes yes, sometimes no. 13 Q Can you cite me a single occasion where 14 you produced studies without posing any objections 15 and reached an agreement with counsel? 16 A I can't cite you an example specifically 17 either way. 18 Q You can't cite any example where you did 19 negotiate and limit the amount of discovery you 20 were going to produce? You can't cite an example 21 of that? 22 A If you are talking about timing, no, not 23 without having the actual files in front of me to 24 review. And I won't testify about things I have 25 to speculate about on cases that are long closed. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 53 1 Q Did you ever undertake in any way an effort 2 to determine what was in shell's files concerning 3 what Shell knew about the leukemia risk of benzene? 4 A In the context of cases, yes. 5 Q What did you do? 6 A Well, we would evaluate it on an as-needed 7 basis, on a case-by-case basis to determine what the 8 extent of potential production needed to be. 9 Q But you never, as I understand -- and I 10 don't want to misstate your testimony. Let me see 11 if I understand you. On a case-by-case basis when 12 you had a discovery request that you agreed to, you 13 went out and found out, responded to it. Is that 14 correct? 15 A That's true, we did that. 16 Q But you never, as I understand it, went 17 out and made a general inquiry as to what was in 18 the files without regard to specific case request? 19 A Never made a companywide search on that at 20 all. We had, of course, when we went through the 21 Poston case, collected and reviewed a number of 22 documents. And with respect to the HS & E files, 23 I had a general idea of what was there. 24 Q Did you find out things that were there 25 that you did.not produce in the Poston case? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 54 1 A Oh, sure. 2 Q Then how is it -- because I'm confused now 3 about what you did. I thought you only produced 4 things -- you only searched for things that you 5 had to produce. How is it that you found things 6 in Poston that you didn't produce? 7 A Because you search before you produce. 8 And you produce that which is responsive. 9 Q Did you ever produce the Soley document 10 in any cases when you represented Shell? 11 A No. 12 Q Did you ever disclose the existence of 13 the Soley document in any case when you represented 14 Shell? 15 A No. 16 Q Do you know of any case in which you 17 represented Shell in which the Soley document was 18 produced? 19 A No. 20 Q Do you know of any case in which the 21 existence of the Soley document was disclosed to 22 anyone outside of Shell? 23 A Do you mean other than Shell employees? 24 Q Right. 25 A Other than counsel representing Shell? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 55 1 Q Right. 2 A No. 3 Q Do you know of anyone to whom the existence 4 of the Soley document was disclosed other than 5 yourself? Now I am considering Shell employees. 6 To whom was its existence disclosed? 7 MR. MOORE: I'm not sure -- when you say to 8 whom it was disclosed, of course, you are asking for 9 this witness's knowledge. It could have been 10 disclosed by any number of people at any number 11 of times. 12 MR. SIMON: That's exactly what I want to 13 know. To whom does he know it was disclosed? 14 A Well, I can't object to your question, but 15 I think "disclosure" was the wrong word, because it 16 was never hidden from anyone. It was accessible to 17 anyone who wanted to see it. 18 MR. SIMON: 19 Q Who knew of its existence that you knew of? 20 A That I knew of? 21 Q That's right. 22 A Presumably anyone who dealt with the place 23 where it was originally stored or kept in the HS & E 24 files and wherever else in the company it might have 25 been found. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES Z-NC. 56 1 Q Do you know where else it might have been 2 found? 3 A There are other places that I suspected it 4 existed. 5 Q Where is that? 6 A Perhaps in the toxicology laboratories at 7 the West Hollow Research Center. That's, I think, 8 the most logical spot where I would have thought it 9 existed. I never did confirm that it did. 10 Q And as far as you know, it always existed 11 and continues to exist in HS & E files? 12 A That's my understanding. 13 Q And is it your understanding that anybody 14 that had the authority and went down and looked for 15 it would have found it? 16 A Sure. 17 Q And if a person wanted to know what Shell -18 let's assume that the person had I want to say free 19 run of the building. That's not very appropriate. 20 Had the authority to get at these files and they 21 wanted -- they sat here and they said, "Gee, I want 22 to know what Shell knew about -- had been told about 23 the risk of leukemia from benzene in 1943." Take me 24 through the process of how, sitting up here in the 25 legal department, they would have gotten to the JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 1 documents. 57 2 A Make a telephone call to Health, Safety & 3 Environment and tell them what you want. 4 Q And if you called Health, Safety & 5 Environment, you would talk to the general librarian 6 first? Is that how you would do it? 7 A There are any number of sources, Barbara or 8 Suzanne or perhaps the librarian. 9 Q And they could have directed you to the 10 Soley document? it A I'm sure they could have. 12 Q They knew of its existence? 13 A I'm sure. 14 Q And they knew of it since the mid-180s, is 15 your belief? 16 A It was in the files. 17 Q Was it ever listed on any index or 18 reference to it? 19 A I don't know. 20 Q Could you tell me, in terms of the files, 21 how are the files maintained? Are they maintained 22 by chemical, by year? 23 A I don't really have enough knowledge about 24 how they're maintained to tell you that. I'm not 25 responsible for them. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES TNC. 58 1 Q What you are saying is, when you say they 2 weren't concealed, they would have been easy to 3 find? 4 A Shouldn't have been terribly difficult to 5 f ind. 6 Q Assuming I weren't in this case but I was 7 interested in the subject and I didn't know what I 8 knew from the case and I had full authority and I 9 came in the building and I called Barbara and I said 10 I wanted to know what Shell knew about, had been 11 told about the leukemia risks of benzene in 1943. 12 Assuming, just putting aside for a minute that 13 she didn't know anything about this case and the 14 dispute that we are having, how long do you think 15 it would have taken her to find that document? 16 A I don't have any idea. 17 Q I mean, two days, a month, an hour? 18 A I can't tell you. They generally responded 19 reasonably promptly to me when I needed information. 20 Q And as far as you know, this document was 21 readily accessible and could have been accessed? 22 MR. MOORE: That's been asked and answered 23 several times. 24 A As far as I know. t: 25 MR. SIMON: JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 59 1 Q Who else besides Barbara and Ms. Funk knew 2 about the existence of the document? 3 A Well, I don't know that they specifically 4 knew. Okay? I'm not telling you that they 5 specifically knew. I'm telling you that they had 6 files that it might have been found in. I'm not 7 telling you that they specifically knew, because I 8 don't know, because I've not discussed with either 9 one of them the existence of the document. You are 10 talking about people now that I am aware of that 11 know or knew? 12 Q Right. 13 A It was -- let's see. I guess we could 14 start -- that know now or knew when? I don't know 15 when you want to start. 16 Q Let's take people that knew prior to the -17 prior to the first day of January of 1991. 18 MR. MOORE: Why don't we take it as of the 19 date he separated from Shell? Wouldn't that be a 20 more realistic date? 21 MR. SIMON: Well, I don't know what 22 distinction is made. I just took 1991 because 23 I thought it was the date this brouhaha started. 24 MR. MOORE: I'm just suggesting -- why don't 25 you, if you will, ask him who may have known as of JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 60 1 the date he separated from Shell. Then maybe he has 2 some other information after that. 3 MR. SIMON: 4 Q Tell me what day you separated from Shell 5 again. 6 A February 28, 1991. 1990, Ism sorry. 7 Q Okay. Now, on February 28th, 1990, tell 8 me the people that you know knew of the existence 9 of the Soley document. 10 A Okay. 11 MR. MOORE: The question is that you know, 12 not who you suspicioned or thought might have known 13 or whatever. 14 A The general counsel of Shell Oil Company, 15 Allen Lackey. 16 Q Spell his name, please. 17 A L a c k e y. 18 Q How do you know he knew? 19 A [No reply] 20 MR. MOORE: Is that something we need to 21 discuss? 22 MR. COLLINS: Yes. 23 MR. MOORE: Okay. 24 MR. SIMON: Do you want me to go out for a 25 second? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES 'INC. 61 1 MR. MOORE: Well, why don't you go ahead -2 THE WITNESS: Let's take a break. Let's 3 talk about that. I'd like to take a break. 4 MR. SIMON: Okay. 5 [Recess] 6 MR. MOORE: Shell objects to the last 7 question posed, on the grounds that the inquiry 8 directed to the witness relates to a specific 9 document and conversations between members of the 10 legal department of Shell relating to a specific 11 document. Those conversations related to a specific 12 document in the context of ongoing litigation that 13 took place or was taking place at the time of the 14 meeting and therefore we believe is a privileged 15 communication. Moreover, because the question 16 relates to a single document, it is not within the 17 scope of the discovery. 18 And let me say this. As I understand it, 19 to the extent that the document is segregated or 20 can be included in a practice of segregation, you 21 are entitled to go into that. But I respectfully 22 suggest that communications of the existence of 23 that document between Mr. Faulk and those who 24 are his superiors or contemporaries in the legal 25 department as it relates to litigation matters is a JERKY KELLEY, UbA NELL MCCALLUM & ASSOCIATES INC. 62 1 privileged communication. Accordingly, we object to 2 the question and assert the privilege that has just 3 been identified. 4 MR. SIMON: Okay. Let me see, I think we 5 can maybe respect the privilege and maneuver around 6 it by asking limited questions. I'm going to try 7 and see_ how we do. 8 MR. MOORE: That's fair enough. And, 9 again, you are entitled to deal with segregation, 10 but I think you are not on that course right now. it MR. SIMON: Okay. I want to avoid any 12 questions you've had with any lawyers so that I 13 find out about cases that are not -- that may be 14 privileged in your legal thinking. 15 MR. MOORE: But not only are you not 16 entitled to find out about cases that are not in the 17 public domain, but you are not entitled to discover 18 the conversations between or among Shell lawyers 19 that resulted in defense strategy or posture or 20 however they thought Shell should best be defended 21 in any particular case. And that is the area into 22 you were beginning to go. 23 MR. HOBSON: I thought that the question 24 had to do with who knew. And he gave an answer. 25 MR. MOORE: Well, he did. And the way that JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES TNC. 63 1 the guy knew is because of conversations -2 MR. HOBSON: Okay. We don't want the 3 conversations. I mean, he knew, and when he knew 4 had nothing to do with conversations. 5 MR. MOORE: Well -6 THE WITNESS: That is the conversation. 7 MR. MOORE:. It did have something to do 8 with the conversation. There's no way he knew 9 except that he discussed it with him in the context 10 of litigation. But go ahead and let's see where we 11 go. 12 MR. SIMON: Let's see if we can artfully 13 get around getting anything that would be 14 privileged. 15 MR. MOORE: But let's don't waste time 16 by trying to artfully deal with-matters that are 17 objectionable. 18 THE WITNESS: For my purposes on the 19 record, as former counsel for Shell, I am, of 20 course, obliged to respect any privilege they 21 assert, and am relying upon Shell's counsel at these 22 depositions to assert such privileges as they see 23 fit. 24 MR. SIMON: 25 Q So what you are saying is that Mr. Moore JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 64 l represents Shell today and you are appearing today 2 on behalf of Shell, is that correct? 3 A I'm appearing, I suppose, here as -4 MR. MOORE: I think that what he said is 5 he is respecting the assertion of privilege made 6 by Shell. As a lawyer, he can't do anything but 7 that. I think we would all agree to that. 8 MR. SIMON: Let's go back now. 9 Q Mr. A. L. Lackey. What was the time frame 10 in which -it MR. COLLINS: Excuse me. That's an 12 improper name. 13 MR. SIMON: Would you correct me? 14 MR. COLLINS: His name is S. Allen Lackey. 15 MR. SIMON: Let the record reflect that 16 last year when we were here with Mr. Zatz I called 17 him Charlie and his name is Cliff. I'm just bad 18 with names. There's no insult intended. We've 19 shown proper respect by calling him Mr. Lackey. 20 It has its own problems, but there's no inference 21 in my tone of voice there, either. 22 MR. MOORE: No, no, no. Let's go ahead. 23 MR. SIMON: Okay. 24 Q What was the time frame, to your knowledge, 25 in which Mr. Lackey was aware of the Soley document? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -INC. 65 1 A I'm assuming we're not asserting a 2 privilege as to the time of the conversation. 3 Q Right. 4 A Approximately 1986. 5 Q In that 1986 time frame, who else knew of 6 the existence of the Soley document? 7 MR. MOORE: Well, you may not -- we 8 object to the question as it may relate to any 9 conversations, information you may have given to 10 others in the legal department relating to your-work it product as an attorney for Shell in preparation for 12 litigation or in anticipation of litigation. And if 13 your -- to the extent your answer includes that, we 14 object and ask you not to give that information. 15 A The existence of the document was never 16 disclosed outside the context of giving legal advice 17 on pending cases and overall liability evaluation to 18 my superiors at Shell. So I can't give you any 19 further information. 20 MR. SIMON: Well, I think we can get names 21 and time frames without getting into what advice you 22 gave them or what your strategy was or what cases 23 were involved. 24 MR. MOORE: Well, the document -- and, 25 again, Ron, I mean, we're trying to deal with the JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 66 1 question of segregation of documents. 2 MR. SIMON: I understand. 3 MR. MOORE: And your questions aren't 4 relating to that at all. 5 MR. SIMON: Well, I believe they are, 6 because this is one of the segregated documents 7 that wasn't produced. And that's essentially -8 MR. MOORE: Well, you have asked him 9 about -- if that's true, then you've already asked 10 him all that you are entitled to ask him about this 11 document. Because he testified to where it was. 12 MR. SIMON: I hear what you are saying. 13 MR. MOORE: And he testified how it got 14 there. Now, if you want to -- the legal significance 15 of all that is up to someone else to decide, not up 16 to.this witness. 17 MR. SIMON: I'm not asking its legal 18 significance. I'm asking him who else -- we're 19 trying to determine -- and I understand there's going 20 to be -- you know as well as I do there's going to be 21 endless motions and disputes filed about whether 22 this was proper or not. All I'm asking is who else 23 during that 1986 time frame knew about the existence 24 of the document. 25 MR. MOORE: Forget about the existence. I JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 67 1 know you think the document has certain significance 2 in terms of your case, and we may debate that for a 3 long, long time. But whether or not the document is 4 segregated or was segregated and should have been 5 produced when your discovery requests were made, 6 that's what we're talking about. 7 MR. SIMON: That's exactly what we're 8 talking about. 9 MR. MOORE: Exactly. And so who knew about 10 it other than this gentleman, I respectfully suggest 11 that if their knowledge came about in work product. 12 terms that you are not entitled to discovery. 13 MR. SIMON: Well, that's exactly what we're 14 here to decide, which is this very issue. Who knew 15 about it is the question. 16 MR. COLLINS: No. 17 MR. MOORE: Well, I disagree with you. But 18 you've already established that this gentleman, who 19 was an employee of Shell, knew about it. 20 MR. SIMON: We've also established that it 21 was in the files, according to his testimony, at 22 23 MR. MOORE: That's right. 24 MR. SIMON: And that librarians could get 25 it and that the general counsel knew about it. I JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 68 1 want to know who else knew about it. 2 MR. MOORE: Well, and to the extent that 3 you are divulging information that came about 4 because of legal advice that you gave either in 5 preparation of litigation or in anticipation of 6 litigation, the privilege is asserted. 7 MR. HOBSON: Are you asserting the 8 privilege as to the name of the person who he 9 knows knew? Just the name of the person? 10 MR. MOORE: Well, if he knows that he it knew because of what he told him in conveying 12 legal advice, yes, I am asserting the privilege. 13 MR. PICKLE: Herschel, at least as I've 14 seen, we have the cart before the horse here. You 15 are saying: "Here's a conversation. Now, who did 16 you have the conversation with?" Clearly that seems 17 to me to be getting into privileged areas of what 18 was discussed with whom. 19 MR. HOBSON: No. The questions that 20 have been posed have not even mentioned the word 21 "conversation." All they've said is: Who do you 22 know, through any mechanism, had knowledge of the 23 existence of this document? 24 MR. MOORE: You are right. And the witness 25 began to tell you, but realized that he knew that JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES TNC. 69 1 because of conversations which, as explained to me, 2 are work product that are privileged. 3 MR. HOBSON: The conversations may be 4 and probably are. But we're not asking about the 5 conversations, just the identity of the person that 6 he has personal knowledge of who knew. 7 MR. MOORE: I understand that. 8 MR. PICKLE: You are, in essence, asking, 9 Herschel, which clients he discussed this subject 10 with. And I think clearly that is privileged, - 11 because you are asking the subject matter of the 12 discussion beforehand. 13 MR. SIMON: No, Hugh, we're not even asking 14 clients. He was a Shell employee in 1986. We're 15 trying to find out -- 16 MR. MOORE: Ron, may I suggest that for the 17 rest of this deposition you just refer to people as 18 Mister? Because you haven't got anyone's name right 19 yet. 20 MR. SIMON: I certainly will. But it won't 21 help. But I'll call you all Mister. 22 MR. PICKLE: Just refer to gentlemen. 23 MR. MOORE: Or boy or whatever. Because 24 you don't know anybo dy's name here and you haven't 25 got it right yet. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES 'INC. 70 1 MR. SIMON: Haven't I gotten yours right? 2 MR. MOORE: No. And that's not Hugh. But 3 that's all right. We're going to do better as we go 4 along. 5 MR. SIMON: I stand chastised and I plead 6 guilty. But I can only tell you that I do not have 7 malice aforethought. I'm performing to my complete 8 confidence. 9 MR. MOORE: I know that. 10 MR. PICKLE: In the interest of time, 11 though, it seems to me the privilege has been 12 asserted. And if you want to take that up with the 13 judge, we can take that up with the judge. But at 14 least from the assertion of privilege on behalf of 15 Shell, that's where it stands. 16 MR. SIMON: I just want to ask a very 17 specific question and then we'll mark the transcript 18 and then we'll go from there. 19 Q In the 1986 time frame, tell me who within 20 Shell you know knew of the existence of the Soley 21 document. 22 MR. MOORE: Do you understand the privilege 23 that's been asserted, Mr. Faulk? 24 THE WITNESS: Right. 25 MR. MOORE: All right. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 71 1 A And I understand that with respect to 2 communications and persons who would have learned 3 about the existence of the document through 4 communications from me in an attorney-client 5 relationship, I'm being instructed not to answer 6 that question. 7 I have disclosed to you the persons that 8 I'm aware of at HS & E who may have been aware of 9 it. The rest of the people, including Mr. Lackey, 10 only became aware of that through privileged 11 attorney-client communications. So I must refuse, 12 on advice of counsel. 13 [THE TRANSCRIPT WAS MARKED] 14 MR. SIMON: 15 Q I believe you said that -- you referred to 16 the fact that people found out about the existence 17 of the document from you. Do you have any knowledge 18 of anyone within Shell that had any information 19 about the existence of the document in that time 20 frame that did not get it from you as part of your 21 work on behalf of Shell as an attorney? 22 MR. MOORE: Other than those already 23 identified as the librarian types? 24 MR. SIMON: Yes, sir. 25 A No. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 72 1 MR. SIMON: 2 Q So then the privilege is asserted, as I 3 understand it, because everyone other than the 4 librarian types who found out about the existence 5 of the Soley document in 1986 found out about it 6 because you told them about it because -- in some 7 way because of your representation of Shell? 8 MR. MOORE: That he is aware of. 9 A Yeah. Let me qualify the answer. When you 10 say "everyone," there may have been a lot of people 11 that knew about the document. Of the people that 12 I'm aware of, other than the people in the HS & E 13 department that I have identified, they would have 14 learned about it through privileged attorney-client 15 communications from me. 16 MR. SIMON: 17 Q From you? 18 A Yes. 19 Q No one came to you and told you about the 20 existence of it? 21 MR. MOORE: Keep in mind he has already 22 told you he doesn't recall how he came into the 23 knowledge that this document existed. 24 A I -- yes, I've answered that question. 25 MR. SIMON: All right. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES I-NC. 73 1 Q So your full knowledge and memory at this 2 point is there were people you told about it and you 3 regard that as privileged? 4 A On advice of counsel. 5 Q Who was the outside counsel in the Poston 6 case? 7 A [No reply] 8 Q If you remember. 9 A While I was working on the case for Shell? 10 Q Right. 11 A There was none. 12 Q And after you went to a joint counsel 13 situation, do you remember who it was? 14 A No. 15 Q Was the outside counsel informed of the 16 existence of the document? 17 A I have no idea. 18 Q After the outside counsel was hired, was 19 there someone in Shell's legal department that 20 continued to be in charge from Shell's point of 21 view? 22 A Yes. 23 Q Who? 24 A His name was Brynn Aurelius, A u r e 1 i u s. 25 Q Now-I'm going to ask you a question and I JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 74 1 need you to explain something to me. When it was 2 transferred to outside counsel, was that -- and 3 then the responsibility, as I understand it, was 4 changed to Aurelius simply because you had different 5 responsibilities, when the case was actually 6 litigated by Shell, you did it, and Aurelius was 7 only involved when there was an outside counsel? 8 Is that correct? 9 A Mr. Aurelius became responsible for 10 managing the outside counsel. And I was not 11 typically responsible for such duties. 12 Q You were typically responsible for actually 13 doing litigation? 14 A Yes. 15 Q And once it became purely a management 16 of outside counsel, you didn't have that 17 responsibility? 18 A That's correct. As a general rule. 19 Q Okay. 20 What was the next benzene leukemia case you 21 remember working on for Shell? 22 A It was a case called Keith Peterson. 23 Q Tell me about what the exposure was, where 24 the case was filed -25 A The allegations of the case -- the case JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 75 1 was filed here in Harris County against a number of 2 defendants, one of whom was Shell. The case, for 3 whatever reason, was not a joint defense insofar as 4 Shell was concerned. Shell did not join the joint 5 defense. The allegations were that Mr. Peterson 6 developed a myeloproliferative disorder from 7 exposure to various solvents at his place of 8 employment, which I believe was some -- was 9 I think Fuller O'Brien Paint Company. 10 Q What was the Shell product that was alleged it to be implicated? 12 A As I recall, the only Shell product that I 13 remember was methyl ethyl ketone. 14 Q What was your responsibility in the case? 15 A I was lead counsel for Shell. 16 Q Did the case go to trial? 17 A It did not. 18 Q Was it dismissed or settled, or both? 19 A It was settled. 20 Q Was the existence of the Soley document 21 disclosed in that case? 22 A No. 23 Q I had asked you, I thought, what the next 24 benzene leukemia case was. And then you responded 25 with this case, which I understood to be a methyl JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 76 1 ethyl ketone case. Explain to me why -2 A The allegation was that Shell's methyl 3 ethyl ketone contained a certain contaminant 4 percentage of benzene. 5 Q Okay. 6 What's the next benzene leukemia case you 7 worked on? 8 A I think it was a case called Zeigler. 9 Z e i g 1 e r. 10 Q Where was it filed? 11 A It was in Beaumont, in Jefferson County. 12 Q What were the allegations in that case? 13 A The allegations were that the decedent -14 MR. MOORE: I'm sorry. 15 MR. SIMON: He wanted to stop because you 16 were talking. Do you want him to wait or not? 17 MR. MOORE: I'm sorry. 18 A The allegations were that the decedent died 19 of I think acute myelogenous leukemia allegedly as a 20 result of exposure to benzene during his work for 21 Gulf States Utilities as a draftsman. 22 Q Do you remember the time frame of his 23 exposure? 24 A 1960s, I think. As I recall. 25 Q What was the Shell product that he was JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 1 allegedly exposed to? 2 A Benzene. 77 3 Q What was the result of the case? 4 A It was settled. 5 Q Was the existence of the Soley document 6 disclosed in that case? 7 A No. 8 Q Who was the outside counsel in that case? 9 A Mr. Hobson. 10 MR. HOBSON: I was for the plaintiff. You 11 meant for Shell, I think, though. I don't think 12 Shell had an outside counsel. 13 THE WITNESS: No, we did not have an 14 outside counsel. 15 MR. SIMON: 16 Q What's the next benzene leukemia case you 17 worked on? 18 A There were a series of cases in Monterrey, 19 California, which were coordinated for trial in 20 San Francisco Superior Court, called the benzene 21 exposure cases, the lead plaintiff being a 22 Mr. Santiago. 23 Q What was your role in those cases? 24 A I was lead counsel for Shell. 25 ,Q Those cases were settled, weren't they? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES 7NC. 78 1 A They.were. 2 Q Did you disclose the existence of the Soley 3 document in those cases? 4 A No. 5 Q Who was Shell's outside counsel in that 6 case? 7 A We had local counsel. I believe the 8 Sheppard, Mullin, Richter & Hampton firm, 9 San Francisco office. 10 Q Was the existence of the Soley document 11 disclosed to them in that litigation? 12 MR. MOORE: I object as to -- that's a 13 communication between lawyers respecting conduct of 14 litigation, it is a privileged communication, and we 15 assert the privilege. 16 A On advice of counsel, I must not answer 17 you. 18 MR. SIMON: I believe that under Texas 19 law, the last time I looked, the lawyer work-product 20 privilege does not continue when the case is over. 21 MR. MOORE: Well, that may be true under 22 Texas law, but we're not dealing with Texas law. 23 I don't know what the Texas law is. 24 MR. SIMON: It is the Texas law, I 25 believe. We're here in Texas, Mr. Faulk is a JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES Z-NC. 79 1 Texas lawyer, Shell is here in Texas. 2 MR. MOORE: But the law that governs 3 whether or not that's a privileged communication 4 is the law that applies to the cases of Carter and 5 Riddle and et cetera versus Shell and others. And 6 I believe it's going to be the federal law, the 7 Federal Rules of Evidence. 8 MR. SIMON: That's right. But the question 9 of what the privilege is is a question of state 10 law. And I believe under Erie the court would apply 11 the law of Texas with regard to these questions. 12 MR. COLLINS: We'll litigate that. We are 13 not willing to waive privilege in this deposition, 14 in this case. 15 MR. SIMON: Are you aware that Texas law 16 doesn't give you privilege in this situation? 17 MR. MOORE: Well, the privilege -- I have, 18 on behalf of my client, asserted the privilege. And 19 then maybe -- maybe when this deposition is concluded 20 we will sit down and compare notes and see where we 21 go. If we can't resolve them, we'll have to present 22 them to the judge for decision. 23 MR. SIMON: I'm only concerned that we're 24 here, and having researched Texas law on this point, 25 it's clear that it doesn't apply, and I'm concerned JERRY KELLEY, CSR NELL MCCALLUM &,ASSOCIATES INC. 80 1 that it's being raised and the Texas lawyers sitting 2 here know that and they are asserting the privilege 3 anyway. 4 MR. PICKLE: You are asking specifically 5 for communications between counsel on a case. That 6 is not work product. That is communication as part 7 of the case and part of the defense. The privilege 8 has been asserted again. I don't see any reason in 9 debating it today. We'll just take it up with the 10 judge. 11 MR. SIMON: Well, what is the privilege 12 if it's not work product communication between 13 counsel? Tell me what legal privilege that is 14 if it's not the work product. 15 MR. MOORE: We've already asserted a 16 privilege. 17 THE WITNESS: And on their instructions, 18 I must respect it. 19, MR. SIMON: Let's mark this part of the 20 transcript, please. 21 [THE TRANSCRIPT WAS MARKED] 22 MR. SIMON: 23 Q What was the next benzene leukemia case you 2 4' worked on? 25 A I guess my recollection is that there were JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 81 1 a series of cases from Shell's Deer Park refinery. 2 I can't recall exactly how many. And I can't recall 3 which -- certainly at least one or two alleged 4 benzene exposures to Shell employees which resulted 5 in leukemia, but I can't recall how many or which 6 did. We referred to those as the Deer Park punitive 7 damage litigation. They were here in Harris 8 County. Well, actually, they were originally mostly 9 filed in Jefferson County and were transferred back 10 to Harris County venue by rulings. 11 MR. SIMON: Let's mark this No. 4, please. 12 [Exhibit 4 marked] 13 THE WITNESS: I presume you want me to 14 review it. 15 MR. SIMON: 16 Q I want you to review it for a second and 17 tell me if you know what it is. 18 A Part of the document I am familiar with, 19 other parts I'm not. 20 Q Which parts are you familiar with? 21 A Beginning on the third page of the 22 document, a report. 23 Q You are saying you are familiar with that 24 part or not familiar with it? 25 A I have seen this, yes, I'm familiar with JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES !NC. 82 1 this part. 2 Q Would you tell me what it is? 3 A It appears to be a report on the Skeen v. 4 Monsanto case that was prepared sometime in February 5 1989. 6 Q Who was it that prepared that report? 7 A Mr. Tyler and myself. 8 Q You joint authored it? 9 A I think that's fair. 10 Q Was it typed in his office or this office? 11 A I think the final draft was done in his 12 of f ice. 13 Q But you worked on it together? 14 A Yes. 15 Q I'm going to refer you, with regard to that 16 article -- forgive me for reaching across -- to Page 17 23, which has biographical information on it. I ask 18 you to look at that for a second first, then I'll 19 ask you some questions about it. 20 A Okay. 21 Q First of all, why weren't you disclosed to 22 be one of the authors of it? 23 A I don't know. 24 Q Was there another -- I notice you just 25 flipped the page. Was there an earlier edition of JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -INC. 83 1 it that had you disclosed as one of the authors? 2 A There is a -- I don't know if it's earlier. 3 Q Is there another draft that had you -- with 4 another page with your biographical information on 5 it? 6 A I seem to recall seeing something like 7 that. 8 Q So this is just -- now, going back to 9 Mr. Tyler, I'm going to the last paragraph -10 next-to-the-last paragraph, sir, it says, I believe, 11 Mr. Tyler currently represents Shell Oil Company in 12 six Skeen-type cases, five of which are against 13 O'Quinn. And I'm trying to pin down now, are those 14 six Skeen-type cases all Deer Park cases? 15 A I believe that's true, yes. 16 Q And I recall in Mr. Tyler's deposition in 17 another case he referred to nine cases. I guess 18 I'm trying to get a sense. Is there a failure of 19 memory? Did the number change in time? How many 20 Skeen-type cases were there up at Deer Park? 21 A I think I've just told you I don't recall 22 exactly how many there were. There were some 23 primary cases under the Texas Constitution punitive 24 damage remedy, and there were some workers comp 25 cases, and I don't know which were which and how JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 84 1 many. Less than 10.' I can't tell you any more 2 than that. 3 Q And what was your role in those cases? 4 A I was lead counsel for Shell. 5 Q Was there an outside counsel at all in 6 those cases? 7 A Yes. 8 Q Who was that? 9 A Mr. John Tyler. 10 Q You are going to have to help me again, 11 because I don't pose my questions as well as I'd 12 like to. I believe I understood before that when 13 there was an outside counsel Shell didn't have a 14 lead counsel. Now, maybe you can explain to me 15 what -- clarify my misunderstanding for me, how it 16 was that Mr. Tyler was outside but you were still 17 the lead counsel. 18 A From time to time we hired outside counsel 19 to supplement our in-house resources on cases where 20 Shell lawyers would be lead counsel. And this was 21 an example of that. 22 Q Now, when was this document -- we're on Page 23 23 -- that you jointly authored with Mr. Tyler, when 24 was it written? It has a date on it. 25 A The date of the document is February 13th, JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 85 1 1989. 2 Q Now, had -- this is a review ---as I 3 understand it, it's a review of the Skeen trial, 4 two Skeen trials, isn't it? 5 A That's correct. 6 Q Did you actually go down and watch the 7 Skeen trials? 8 A Yes. 9 Q And did Mr. Tyler go down and watch the 10 Skeen trials? 11 A Yes. 12 Q And was he paid by Shell to go watch those 13 trials? 14 A He was. Not both trials. There were two 15 trials. The second trial was the one that was 16 observed. 17 Q Now, at the time he was paid to watch a 18 trial for Shell, was Shell a party in that Skeen 19 litigation? 20 A We were not. 21 Q To whom was this report, which is beginning 22 on the third page of Exhibit 4, distributed? 23 A To a large group of numerous people through 24 the Chemical Manufacturing Association. 25 Q Could you tell me -- go through the JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 86 1 process? How did it come to be written? 2 MR. MOORE: May we have a break? 3 [Recess] 4 MR. SIMON: Read back the question. 5 [The record was read as requested] 6 A The report was a result of some -- our study 7 of what had happened in the Skeen case. And I had 8 discussed with a number of people associated with 9 the CMA our work we had been doing, and they 10 expressed an interest in what had happened, 11 and we elected to offer them a report. 12 MR. SIMON: 13 Q And was the report something you did on 14 your own or was it something paid for --you did 15 . with your time that you were paid for by Shell? 16 A To the extent that I did anything on this, 17 I was doing this on my own time. 18 Q You didn't do this on behalf of Shell? 19 A Well, I guess to the extent the opinions 20 and information I got. But the actual writing of 21 the report was not something I did on Shell's time. 22 Q You didn't do it here in your office? 23 A [Moving head side to side] 24 Q You didn't use your secretary here to do 25 it? JERRY KELLEY, NELL MCCALLUM & CSR ASSOCIATES INC. 87 l 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Huh-uh. Q What about Mr. Tyler? Was that part of his assignment for Shell, to do this paper? A No. Q So Shell wasn't billed for the time? A Not that I'm aw are of. Q Did you review his bills? A Yeah, usually. Q Were they detai led? A I think so. Q Who at CMA did you discuss this paper with? A Well, when? Q Tell me -- how long did it take to get the 88 1 had -- it was handed out through the CMA toxic tort 2 committee to company subscriber members. I don't 3 know specifically all the distribution, but that's 4 how it was done. It was handed out at seminars. 5 Q What seminars was it handed out at? 6 A It was handed out at a -- well, I don't 7 know if it's a seminar. Yeah, it was handed out at 8 a seminar in San Francisco, toxic tort litigation. 9 It was handed out at the regular quarterly meeting 10 of the CMA toxic tort group. I don't remember it exactly when or where that was at the time. 12 Q Did people write to you to get copies of 13 it? 14 A A couple of people may have. 15 Q And did just you send it out? 16 A Sure. 17 Q Did you send it out from here? 18 A Yeah. 19 Q You didn't send it out from your home? 20 A Oh, no. 21 Q And the Xerox copying was paid for by 22 Shell? Or did you pay for it personally? 23 A Could have been done through Mr. Tyler's 24 office, I'm not really sure. Shell was aware that 25 this offer had been made and agreed with it being JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 89 1 sent out, shared. 2 Q And your secretary sent it out if people 3 called here and wanted it? 4 A Sure, if we had copies there and somebody 5 wanted one. 6 Q Now, who was the plaintiff's counsel in the 7 Deer Park cases? 8 A The counsel who I worked with was John 9 Leach. And there was another fellow by the name of 10 Dennis Reich. 11 Q What ultimately happened with those cases? 12 A They were, to my knowledge, settled, and we 13 got summary judgment in one or two of them. 14 Q Were the Soley documents produced in the 15 Deer Park cases? 16 A No. 17 Q Was their existence acknowledged or 18 indicated in any way in the Deer Park cases? 19 A No. 20 Q Did you coordinate the response of the 21 discovery requests by the plaintiffs -- the request 22 by the plaintiffs to Shell in the Deer Park cases? 23 A What do you mean by coordinate? 24 Q Were you the person to whom they came? 25 A I was the person who received their JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES fkC. 90 1 requests, yes. 2 Q And how did you set out -- what did you do 3 when you got their requests? 4 MR. MOORE: Excuse me. Are you asking him 5 the process through which he went as a lawyer to -6 MR.SIMON: Not his mental process, just 7 how he gathered them -- 8 MR. MOORE: That's what you just asked him, 9 what his mental process was. That's what I 10 understood you to say. 11 MR. SIMON: I want to know his action 12 process, how he winds up getting the documents, 13 what he does. 14 MR. MOORE: Hasn't he already told you how 15 he went about doing that? 16 MR. SIMON: In other cases. 17 MR. MOORE: Hasn't that been asked and 18 answered? 19 MR. SIMON: In another case, not in 20 Deer Park. 21 MR. MOORE: I thought you asked him 22 generally how did he do it, and he told you, and 23 then you started asking him about Poston, and then 24 you went on up to where you are now. 25 MR. SIMON: You're right. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES.INC. 91 1 Q I just want to.know how it was produced in 2 this case. 3 A No documents were produced in any of those 4 cases, as I recall. 5 Q Did the plaintiffs request documents? 6 A They did. 7 Q Then how is it that no documents were 8 produced? 9 A Motions were filed, referred to as Lone 10 Pine motions, based on the name of that case, 11 which required the plaintiffs to come forward with 12 scientific evidence of causation prior to Shell 13 undertaking the burden of responding. 14 And to my knowledge, all of those motions 15 were granted. And plaintiffs never did come 16 forward. No documents -- no responses were made. 17 Q After the evidence of causation and the 18 summary judgment was heard on those issues, the 19 cases were either dismissed or settled? 20 A There was never a summary judgment heard. 21 There was never a proof of causation tendered. 22 Q How were the cases resolved? 23 A They were settled. 24 Q Were any discovery requests made by the 25 plaintiffs in the Deer Park case? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -INC. 92 1 A Yes. 2 Q And they were -- as I understand it, they 3 were just superseded by the Lone Pine motion that 4 was granted? 5 A Not all of them. Insofar as documents were 6 concerned, they certainly were. 7 Q And you, at the time that you filed the 8 Lone Pine motion, were aware of the existence of 9 the Soley document? 10 A I was. 11 Q You were aware that it was damaging to 12 Shell's position in the case? 13 MR. MOORE: Objection. 14 MR. COLLINS: Objection. 15 MR. MOORE: Wait a minute. That 16 necessarily is something that would go to work 17 product considerations and his thought processes 18 in conducting litigation. 19 MR. SIMON: 20 Q Did Shell file in the Lone Pine case any -21 MR. MOORE: Lone Pine? 22 MR. SIMON: I'm sorry. Thank you. 23 Q In the Deer Park cases, did Shell file any 24 affidavits from experts dealing with the subject of 25 whether benzene caused leukemia? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES ZNC. 93 1 A I don't believe so. Not to my 2 recollection. 3 Q Did they file any affidavits with regard to 4 the subject of whether the plaintiff's evidence that 5 benzene caused leukemia was inadequate? 6 A Not that I recall. 7 Q Did Shell ever list any experts in the 8 case? 9 A I don't believe so. 10 Q Why don't you just help me a bit? What 11 happened after the Lone Pine motion was granted 12 till the resolution of the case? 13 A Nothing that I recall. 14 Q In other words, the Lone Pine motion was 15 granted and then there was a settlement offer that 16 was accepted? 17 A As a general rule. Now, we did have 18 summary judgment questions on statutes of 19 limitations and things like that that were litigated 20 in a couple of the cases. But to my knowledge, no 21 further discovery was attempted by the plaintiffs 22 whatsoever. 23 Q What about by the defendants? 24 A Other than inquiries into medical records 25 and perhaps taking one deposition, I don't believe JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -INC. 94 1 that any other discovery was attempted by the 2 defendants. We did send out some routine 3 interrogatories at the beginning of the case for 4 purposes of gathering basic facts. But after the 5 Lone Pine motions, I don't remember initiating any 6 form of discovery except perhaps medical records. 7 Now, of course, the files may reflect otherwise. 8 I haven't reviewed them in two or three years. 9 Q Did Shell-retain any experts in the 10 Deer Park case? 11 MR. MOORE: I object. Whether they 12 retained experts, you're not entitled to know that. 13 You've already asked him if they identified any 14 experts, presented any affidavits from experts, and 15 he told you he didn't recall, he didn't think so. 16 MR. SIMON: 17 Q Let's go back to the Monterrey, California, 18 case. Did Shell identify any experts in that case? 19 A I don't believe so. 20 Q In the Zeigler case, did Shell identify any 21 experts? 22 A I don't recall that we did. The case was 23 settled before that happened. 24 Q How about in the Peterson case? 25 A We may have. I don't remember. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES SNC. 95 1 Q What experts have you worked with in terms 2 of reaching opinion as to whether benzene caused 3 certain leukemia on behalf of Shell? 4 MR. MOORE: I object. You're not entitled 5 to that information. 6 MR.'SIMON: I believe the reason I'm 7 entitled to it is because on the question of 8 segregation again the issue comes up whether the 9 Soley and other documents were given to the experts 10 for Shell. 11 MR. MOORE: Well, excuse me. That has 12 nothing to do with segregation. You're not entitled 13 to know any expert witness that any Shell attorney 14 has consulted or discussed anything with as it 15 relates to any litigated matter. 16 MR. SIMON: Let's mark the transcript. 17 [THE TRANSCRIPT WAS MARKED] 18 MR. SIMON: 19 Q Did you ever give the Soley document to 20 Dr. Wong? 21 MR. MOORE: I object to any communications 22 with any expert witness. 23 MR. SIMON: What's the grounds? 24 MR. MOORE: You're not entitled to 25 them. He can talk to any expert he wants to in JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 96 1 anticipation of litigation and preparation for 2 litigation. You're not entitled to go into reasons 3 for that or what his dialogue with an expert witness 4 may have been. 5 MR. SIMON: Subject matter of these 6 litigations is the fact and the purpose of the 7 segregation. Now we have clearly established on 8 the record that the documents existed, people knew 9 of their existence, they weren't produced. And in 10 terms of determining the purpose which the judge 11 spoke to very greatly on Tuesday, the purpose of 12 the segregation, one of the ways that we can infer 13 conclusions about the purpose is to determine to 14 whom else it was distributed. 15 MR. MOORE: Well, I just disagree with 16 you. And the witness shall not answer any questions 17 relating to communications between the witness and 18 the experts or potential expert witnesses as it may 19 relate to any matter in litigation or any matter in 20 anticipation of litigation. 21 MR. SIMON: Let me be clear again what I'm 22 asking for as I mark the transcript. 23 MR. MOORE: 24 25 JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 1 those kinds of questions. 97 2 [THE TRANSCRIPT WAS MARKED] 3 MR. SIMON: 4 Q You conducted -- participated in a meeting 5 here at One Shell Plaza that discussed benzene 6 litigation at some point, didn't you? 7 MR. MOORE: What are you speaking of? 8 Are you talking about the meeting in Mr. Tyler's 9 office? 10 MR. SIMON: I believe there was a meeting 11 either on the 48th or 49th floor -- 12 MR. MOORE: Mr. Tyler's office was on the 13 49th floor. Is that the meeting you are speaking 14 of? 15 MR. SIMON: There may have been many 16 meetings, I don't know, that's why -17 MR. MOORE: That's what I'm suggesting. I 18 had no objection, and you are entitled to inquire 19 into the meeting in Mr. Tyler's office at which time 20 that paper was presented. The judge has said you 21 could do that. But meetings between the witness and 22 other lawyers at Shell in which matters relating to 23 litigation or in anticipation of litigation were 24 discussed, I respectfully suggest, the witness may 25 not respond to that. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 98 1 MR. SIMON: I'm trying to ask about that 2 meeting. I just couldn't be specific because I 3 didn't know the date of it or any way to describe 4 it. 5 MR. MOORE: But you are talking about the 6 one in Tyler's office? 7 MR. COLLINS: Can we stipulate the meeting 8 we're talking about was the April 6, 1989, meeting 9 in Mr. Tyler's conference room? 10 MR. MOORE: Is that the day? 11 MR. SIMON: If you know that's the day, 12 I'd appreciate it. I don't know the day. I'm not 13 trying to be obstreperous. 14 MR. COLLINS: That is referenced in the 15 notices of deposition concerning in which case the 16 document concerning benzene defense and strategy of 17 Mr. Faulk is the subject matter? 18 MR. SIMON: Right. That's the meeting that 19 I'm talking about. I don't know whether it occurred 20 that day or not. 21 MR. MOORE: Okay. There's no objection to 22 that time. 23 THE WITNESS: You are asking if I 24 participated in that meeting? 25 MR. SIMON: Yes. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 99 1 A Yes, I did. 2 MR. SIMON: 3 Q And you invited people to the meeting, 4 didn't you? 5 A I wasn't the only one who invited people, 6 but yes. 7 Q Who did you invite to the meeting? 8 A Ed Lowenberg of Exxon and any health 9 professional he chose to bring from that company; 10 Paul Trubenbach of Chevron and any health 11 professionals he chose to bring; Leslie MacDonnel 12 from Lyondell and any company health professional 13 within her discretion, whoever she selected. I 14 don't recall talking to anyone who was employed by 15 Texaco, but Texaco was invited. There may have been 16 other attendees. Those are the ones that spring to 17 mind right now. 18 Q Was Dr. Wong there? 19 A Oh, yeah, Dr. Wong was invited. 20 Q Did you invite Dr. Wong? 21 A I don't know whether I did or whether 22 Mr. Tyler.did. 23 Q Was Dr. Irons at that meeting? 24 A Dr. Irons was there. I guess when we're 25 talking about participants I was thinking about JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 100 1 attendees and making a distinction. Dr. Irons was 2 there, yes, and was invited. 3 Q Was Dr. Stan Peer there? 4 A No. 5 Q Dr. Enterline? 6 A No. 7 Q Did you help plan that program? 8 A Yes. 9 Q With whom did y'all plan it? 10 A Well, there were a group of us that had an 11 interest in doing something like this, kind of based 12 on the research and information that we had in the 13 Skeen case and benzene information in general. 14 An interest was developed to have an 15 informational sharing meeting. I believe some of 16 the people I've just talked to you about talked to 17 me about what they wanted to hear, what they were 18 interested in. 19 And then I sat down with Mr. Tyler and we 20 kind of put together an agenda. 21 Q You and Tyler put together the agenda? 22 A Yeah. Yeah, we did. 23 Q And what was the purpose of the meeting? 24 A To share information that John and I had 25 developed as a result of observing the Skeen trial JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -INC. 101 1 and what -- and also information from my general 2 experience. 3 Q Do you remember, was this meeting conducted 4 on a weekday or weekend? 5 A It was a weekday. 6 Q Did yola take a vacation day? Or did you 7 just -- 8 A Oh, no. 9 Q Workday? 10 A Workday. it Q So your appearance there was part of your 12 work for Shell? 13 A No. 14 Q But you didn't take a vacation day? 15 A No. 16 Q Why isn't it part of your work for Shell, 17 the work at the meeting, then? 18 A I was not appearing there as a 19 representative or on Shell's behalf. 20 Q Why didn't you take a vacation day? 21 MR. MOORE: Asked and answered. 22 MR. SIMON: 23 Q Did you take annual leave? 24 A No. 25 Q Do you know who paid for Dr. Wong to come JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES.INC. 102 1 to the meeting? 2 A I don't remember who paid for those things. 3 Q Did he pay for himself? Do you know? 4 A I don't know. 5 Q Do you know about Dr. Irons, who paid 6 Dr. Irons? 7 A I have no idea. 8 Q Do you know whether they were paid a fee? 9 A I don't know. I don't remember. 10 Q Did you ever know? 11 A I don't remember whether I ever knew. 12 Q Well, who was the principal planner of the 13 meeting, you or Mr. Tyler? 14 A I guess insofar as getting it to come off, 15 it would probably have been me, I suppose. But as 16 I say, I don't remember who invited Dr. Irons or 17 Dr. Wong. So I don't know what the arrangements 18 were. I don't recall what the arrangements were. 19 Q Did your secretary handle getting out the 20 invitations? 21 A I don't remember whether there were written 22 invitations extended or not. 23 Q Were there agendas sent prior to the 24 meeting? 25 A I don't remember. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES.INC. 103 1 Q Were there xeroxed materials handed out? 2 A There were. 3 Q Who prepared the materials? 4 A Do you mean who did the xeroxing? 5 Q Right. 6 A I believe Mr. Tyler's office. 7 Q Was the existence of the Soley document 8 disclosed at that meeting? 9 A It was not. 10 Q After the Deer Park cases, what were the 11 next benzene leukemia cases you worked on? 12 A I don't recall during my employment at 13 Shell that I worked on any others at this point. 14 Wait. I take that back. There was a case called 15 Guillot, G u i 1 1 o t, I think. Cocounsel probably 16 can spell it better than I. 17 Q Was that Mr. Hobson's case? 18 A It was. 19 Q Just tell me what the allegations were in 20 that case. 21 A The allegations were that this person who 22 was a Shell employee developed some -- I'm not sure 23 it was a leukemia case, but developed some blood 24 disorder from which she died after being exposed 25 to -- I'm not sure whether it was pure benzenes JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 104 l or solvents, while working as a painter for Shell. 2 Q What was the resolution of that case? 3 A I don't have any personal knowledge of 4 what the resolution was. Okay? Because it was not 5 resolved while I was at Shell. I left before it was 6 resolved. 7 Q Now, going back to the -- I believe 8 you testified that you became aware of the Soley 9 documents sometime-in the mid-180s, is that correct? 10 A That's the best estimate that I can give 11 you. 12 Q Now, in the cases you were involved in, 13 did you review specifically the discovery requests 14 from the plaintiffs that were propounded to 15 determine whether the Soley document was within the 16 request? 17 MR. MOORE: I object to. To the extent -- 18 I mean, you are asking him for his mental 19 impressions as a lawyer and how as a lawyer he ought 20 to respond to any particular request. I haven't 21 objected to what you have asked up to this point, 22 but what he produced, what he didn't produce, the 23 decisions with respect to why anything was or was 24 not done, I respectfully suggest, are matters of 25 privilege. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES 105 1 MR. SIMON: I think that that's exactly why 2 we're here. Again, the question is: What was the 3 purpose of the segregation? 4 MR. MOORE: Then let's deal with -- you 5 haven't asked him about segregation of documents 6 yet. 7 MR. SIMON: I've been asking him -8 MR. MOORE: Well, and -9 MR. SIMON: -- pertinent questions to that 10 subject. 11 MR. MOORE: All right. Okay. All right. 12 But the question you just asked, I respectfully 13 suggest, is out-of-bounds, and we do assert the 14 privilege on his mental impressions and the 15 considerations he gave to whether or not certain 16 information should or should not be produced. 17 MR. SIMON: Let's mark the transcript. 18 [THE TRANSCRIPT WAS MARKED] 19 MR. SIMON: Let's go back to the deposition 20 notice. Do you have a copy of that? 21 MR. MOORE: Yeah. 22 MR. SIMON: I just want to read it and make 23 sure he's responsive to it. 24 THE WITNESS: Good exercise. 25 MR. PICKLE: I'm sorry, Ron. For my own JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 106 1 information, what case was your last question 2 directed to? Was it to the Guillot case or -3 MR. SIMON: General. All cases. 4 Q I'm just going to read it out. If we both 5 see it, that doesn't offend you, Mr. Faulk? 6 A Is there an extra one? Not that I'm 7 offended at all. 8 MR. SIMON: Could you read over it with 9 Rob? Sir? 10 MR. MOORE: "That person." 11 MR. SIMON: 12 Q I'm now reading from Page 2 of Exhibit 1, 13 which is the 30(b)(6) deposition notice. And I want 14 to ask you -- you've earlier testified, I believe, 15 that you are the designated representative of Shell 16 Oil Company on a number of these subjects, is that 17 correct? 18 A That is correct. 19 MR. MOORE: Well, I'll state on behalf of 20 Shell that that's correct. 21 MR. SIMON: Okay. 22 Now, just for the record, I'm going to Page 23 2. I have before me another document that I want to 24 mark. 25 (Exhibit 5 marked] JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES`INC. 107 1 MR. SIMON: 2 Q Could either my distinguished colleague 3 from Roanoke or Mr. Faulk identify for me what 4 Exhibit 5 is and -5 A For the record, I cannot. 6 MR. MOORE: No. 5 is a listing by number 7 of the boxes that we understood -- "we" being Shell 8 understood to be the primary scope of this 9 examination and the reason for the request that 10 Shell designate someone as a 30(b)(6) witness. it Mr. Faulk, while an employee of Shell, had 12 a practice, as you'll find out, of taking certain 13 documents from completed cases and putting them away 14 in a separate place. And this, what you have marked 15 as Exhibit 5, is a listing of those boxes as well as 16 a very brief description of the contents of those 17 boxes. 18 MR. SIMON: Could you tell me who prepared 19 this exhibit? 20 MR. COLLINS: It was prepared, under my 21 direction, by my paralegal. 22 MR. SIMON: Would you identify that person 23 by name? 24 MR. COLLINS: Her name is Susan Sherman. 25 MR. HOBSON: Do you know when it was JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 108 1 prepared, Mr. Collins? 2 MR. COLLINS: In the past week. 3 MR. SIMON: Do I understand that it's 4 Shell's view that this is ---this list of documents 5 is responsive to the documents requested on Page 2, 6 and that you'll make these available to us? 7 MR. MOORE: They are here, they are the 8 documents that were stored in Mr. Tyler's offices 9 to which he referred when his deposition was taken. 10 And I think as you question the witness he will 11 identify how all that came to be. 12 MR. SIMON: And you don't have any -- and 13 these are the documents that you'll make available 14 to us? 15 MR. MOORE: Well, they are the documents. 16 We assert a privilege with respect to some of them. 17 And some of them are not responsive to any issue in 18 this litigation. But they are the documents, many 19 of -- most of which or many of which will be made 20 available for your inspection. 21 MR. SIMON: Well, can you indicate for us 22 which -- since you've given us a list now, which you 23 are going to assert a privilege on so we can know 24 which aren't available? 25 THE WITNESS: I can't. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 109 1 MR. SIMON: I know. I'm sorry, Mr. Faulk. 2. I understood that you couldn't. 3 MR. MOORE: Well, why don't we wait till we 4 get to the documents? The documents we're asserting 5 a privilege on are documents -- for example, and you 6 haven't had a chance to review that, I don't guess, 7 but a lot of them are his case files. As a matter 8 of fact, the majority of that material represents 9 case files, matters about which Mr. Faulk appeared 10 as counsel for Shell and documents accumulated 11 during the course of that representation. But I 12 really don't believe we're going to have a big 13 argument about any of this. So why don't you go 14 ahead and examine him and we'll see where we go. 15 MR. SIMON: Go over the documents later? 16 Okay. That's fine. 17 Q I'm just going down here. We've asked 18 Shell to produce, as well as documents, a witness. 19 Now, are you a witness for purposes of determining, 20 No. 1, the extent and purpose of segregation of any 21 documents relating to health hazards of benzene? 22 A To some extent. 23 MR. MOORE: The only point that I wish to 24 make, again, is that it's our understanding -25 meaning Shell's understanding -- that the reason- JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 110 1 that we're having this session is primarily the 2 so-called discovery of the 48 boxes in Mr. Tyler's 3 office that came about because somebody tried to 4 sell documents to Mr. Hobson and then Mr. Tyler's 5 deposition was taken and it was found that these 6 various boxes were there. These boxes are the 7 result of the effort of Mr. Faulk -8 MR. COLLINS: Primarily. 9 MR. MOORE: Yeah, primarily the efforts of 10 Mr. Faulk. He is the only person in the -- who has 11 ever worked for Shell who can tell you or Mr. Hobson 12 or anyone else how these came into being. So that's 13 the reason -- that's why he's been designated. 14 MR. SIMON: I'm just -15 MR. MOORE: So when you say segregation of 16 any documents, the only documents that he can talk 17 about in terms of -- as I understand what you mean by 18 segregation -- are those that were placed in these 48 19 boxes. 20 MR. SIMON: And in the blue vinyl binders. 21 MR. COLLINS: Which is part -22 MR. MOORE: Well, that's all part of the 48 23 boxes. 24 MR. COLLINS: And let me make one other 25 thing. You keep referring to it as a blue vinyl JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES 'INC. 111 1 binder. There are multiple binders of multiple 2 colors. 3 MR. SIMON: One of the things, just so you 4 understand, that we will obviously request to do 5 before we go is not only look at these documents but 6 look at the place where they are kept and actually 7 see this binder. That's one of the things we want 8 to do. We don't want to see a copy. 9 MR. MOORE: See "this binder"? 10 MR. COLLINS: You'll have to describe what 11 "this binder" is. We will show you the documents -12 MR. MOORE: Let's wait till we get there. 13 MR. COLLINS: -- in those 48 boxes. 14 MR. MOORE: We'll take the court reporter 15 back in the room with us. 16 MR. COLLINS: Can we go off the record just 17 a minute? 18 MR. SIMON: Sure. 19 [Discussion off the record] 20 MR. SIMON: Back on the record. 21 MR. MOORE: We don't think they've been 22 segregated, but you say -23 MR. SIMON: I understand. 24 MR. MOORE: -- that may be another 25 subject. We're frankly not prepared to deal JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES 112 1 with that right now. 2 MR. SIMON: Okay. 3 Q The extent and purpose of segregation of 4 any documents relating to the health hazards of 5 benzene. You are the 30(b)(6) witness on this 6 subject, subject to you don't know of any, you only 7 know of the ones you've been involved in, is that 8 correct? 9 A To the extent that -- I have a lot of 10 problems -- as a witness, I have a lot of problems 11 with the word "segregation." Okay? But to the 12 extent that you are meaning this storage of 13 documents at Tyler's office as being a segregation, 14 I can talk about that. And, you know, I can talk to 15 you about what I know, and that's all I can talk to 16 you about. And so the best way to deal with it is 17 to ask questions about it rather than to have me 18 object and try to explain it to you. 19 Q You are the witness on the identity of all 20 documents from Shell pertaining to health hazards 21 from benzene which have been segregated, subject to 22 your comments last time? 23 A To my -24 MR. MOORE: He didn't make the decision 25 that he was going to be Shell's representative. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 113 1 Shell made that decision. Now, I can tell you that 2 Shell made the decision because he's the person who 3 has the knowledge about these so-called 48 boxes. 4 I can also tell you that Shell's view of all of this 5 is that the only segregation which ever occurred as 6 we believe to be defined by Judge Kiser -- and 7 although I didn't participate in the telephone 8 conference day before yesterday, or whenever it was, 9 as modified by whatever he said in that conference, 10 the only segregated documents are those in these 11 boxes. And that's why this gentleman is -- has been 12 presented to you as a 30(b)(6) witness. 13 Now, if we are going to get into an 14 argument about there may be some other segregation, 15 we need to talk about that. 16 MR. SIMON: No, we're not going to have an 17 argument about that. 18 MR. MOORE: Okay. 19 THE WITNESS: I'm amazed. 20 MR. SIMON: 21 Q With what, sir? 22 MR. MOORE: That there's no argument. 23 A That there's no argument. 24 MR. MOORE: Let's don't promote another 25 argument. Come on with the questions. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES 114 1 MR. SIMON: 2 Q You were aware of.-- just to be clear so we 3 cannot argue if we don't have to, are you aware of 4 any segregation of any documents regarding the 5 health hazards of benzene other than the one that 6 Mr. -- my friend from Roanoke just described? 7 A Not within the way that term has been 8 explained to me. 9 Q Okay. 10 Are you aware of how the documents -- any 11 documents regarding Shell's knowledge of health 12 hazards of benzene are arranged at Shell? 13 A I think I've already testified about that -14 Q Where are they? 15 A -- earlier with respect to the HS & E 16 files. 17 Q Well, you told me that some of them are in 18 the proprietary study files. Where else are they in 19 HS & E? 20 A As I said, in the information services 21 files. They could be in any other number of 22 locations as well. 23 Q Tell me what the information services files 24 are. 25 A I've already described that. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES 115 1 Q I haven't heard that word before. That's 2 why I think you described them without using that 3 term. 4 A Can you define "them" for me again, let me 5 make sure I understand what you are asking me? 6 Q The'"them" are any information that Shell .7 has regarding allegations of the health hazards of 8 benzene. The "them" regards allegations regarding 9 the health hazards of benzene. 10 A Allegations? 11 Q Right. 12 A Now you are getting into -- are you talking 13 about lawsuits, too? 14 Q No. No. Studies, case reports, reports 15 made to Shell by doctors recommending -- 16 A Those are the principal places I'm aware 17 of. There may be others. 18 Q In the study files and the information 19 services files? 20 A There may be and probably are hundreds of 21 other places, but I can't tell you what they are. 22 Q How are the information services files 23 arranged? 24 MR. MOORE: Do you know? 25 A Well, yeah. I've already answered that. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES 116 1 MR. SIMON: 2 Q Well, I haven't heard you use that phrase 3 before except about 10 seconds ago. So I need you 4 to tell me again. 5 A It's the same thing when I was talking 6 about the central files in HS & E that are 7 administered by Suzanne Funk. 8 Q And she has an index, but you haven't seen 9 it? 10 MR. MOORE: No, he didn't say that. He 11 didn't s ay she has an in dex that he hasn't seen. 12 AI don't recall ever seeing an index. 13 MR. SIMON: 14 Q You haven't see n an index? 15 AI don't recall an index. 16 Q Is it your view that she h as an index? 17 MR. MOORE: If you want to -- he's answer 18 all the questions he can about what he knows on th 19 subject. 20 MR. SIMON: I believe we'll have to depose 21 Ms. Funk this afternoon. 22 Q The next one, No. 4, the identity of all 23 documents contained at any time in the recently 24 uncovered benzene binder referenced in the 25 deposition of John O. Tyler, are you the NELL JERRY KELLEY, MCCALLUM CSR & ASSOCIATES-INC. 117 1 witness that can speak to that? 2 A I can talk to you about the binder as of 3 and up to the time I left Shell. 4 Q Would you be able to look at the binder and 5 determine from looking at it whether its contents 6 now are the same as they were at the time you left 7 Shell? 8 A With respect to some documents. 9 Q So you have some idea what the documents 10 were that were in there? 11 A Sure. 12 Q The identity of all binders or sets of 13 binders in which all documents pertaining to health 14 hazards of benzene were maintained or stored at any 15 time by Shell. Are you the witness? 16 A With respect to the documents that were 17 stored in John Tyler's law office, yeah. 18 Q What floor are we on now? 19 A 48. 20 Q And that's where your office was when you 21 worked for Shell? 22 A That's correct. 23 Q And where's Tyler's office? 24 A It was on 49. 25 Q Not there anymore? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 118 l A No. 2 Q Where is it now? 3 A I don't know. 4 MR. COLLINS: He's moved buildings. 5 THE WITNESS: Couple of blocks away from 6 here, I think', but I don't know which building. 7 MR. SIMON: 8 Q And when you worked for Shell and Tyler had 9 an office on the 49th floor, you had a key to his 10 office, didn't you? 11 A I did. 12 Q And No. 6, the locations of all documents 13 segregated at any time by Shell from its files 14 pertaining to the health hazards of benzene were 15 stored, maintained or kept, are you the witness to 16 talk about that? 17 A With respect to the documents that were in 18 Mr. Tyler's office, yes. 19 Q What about the reason the segregated 20 documents were not revealed to the plaintiffs during 21 discovery? Are you the witness to talk about that? 22 A With respect to this case, I have no idea. 23 Q Do you know who the witness is going to be 24 on that subject? 25 MR. MOORE: Well, Mr. Collins -- you are JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 119 1 going to take Mr. Collins' deposition. Mr. Collins 2 is the lawyer who is familiar with that subject. 3 MR. SIMON: Okay. 4 Q The manner or method by which the documents 5 were gathered and segregated from Shell's files. 6 Are you the witness on that subject? 7 A With respect to the materials at Tyler's 8 office that were actually obtained from Shell's 9 files, the answer would be me. 10 Q The identity of all documents, including 11 indices, memoranda or lists which describe the 12 location and identity of all documents pertaining 13 to the health effects of benzene in Shell's files 14 at any time? 15 A Again, with respect to information I'm 16 aware of and with respect to the materials in 17 Tyler's files, yes. Or Tyler's offices. 18 MR. SIMON: Just let the record reflect 19 that both with regard to No. 7 and No. 9 that if 20 Mr. Collins is not prepared to talk about the way 21 the documents are organized downstairs and on what 22 indices they're available so as to make them 23 accessible, we're going to insist under our 30(b)(6) 24 motion -- notice that we depose the appropriate 25 witness, who may be this Funk person. But I think JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 120 1 that those need to be addressed before we go home. 2 Q No. 10. Where the segregated documents are 3 currently being stored. 4 A Not me. 5 MR. SIMON: Not you. Okay. 6 Mr. Collins, are you going to be the one on 7 No. 10, where they are currently being stored? 8 MR. MOORE: Where what is currently being 9 stored? 10 MR. SIMON: The segregated documents which 11 I understand -12 MR. MOORE: Do you mean these 48 boxes? 13 MR. COLLINS: They will be shown to you. 14 MR. MOORE: Yeah. 15 MR. SIMON: 16 Q The identity of any and all additional 17 documents concerning the health hazards posed 18 by exposure to benzene-containing products beyond 19 those contained in the recently-uncovered benzene 20 binder. 21 A To my knowledge -22 MR. MOORE: What is that one? Did you just 23 read No. 11? 24 MR. SIMON: I'm just going down the list. 25 MR. MOORE: But I'm just trying to figure JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 121 1 out where you are. 2 MR. SIMON: 11. 3 MR. MOORE: No. 11. Well, what do you mean 4 by additional documents? 5 MR. SIMON: Well, what we've been engaged 6 in here is about three years of a guessing game in 7 which nothing is produced and then we're told to 8 specify the documents and only under the most 9 untoward circumstances when some party other than 10 Shell gives me one of them -11 MR. MOORE: But the only question I'm 12 asking you, Ron, is when you say any additional 13 documents, we have to deal with a particular 14 person. Do you mean documents in addition to those 15 48 -- those that are in those 48 boxes? 16 MR. SIMON: Yes. 17 MR. MOORE: That this witness may have 18 knowledge of as being segregated? Is that what you 19 are -- is that the question that you just asked? 20 MR. SIMON: No. The question is documents 21 in addition to the 48 which describe the health 22 hazards posed by benzene that are in Shell's file 23 that this witness is aware of. 24 MR. MOORE: Well, let me suggest to you 25 that the answer that you got to the interrogatories JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 122 1 initially propounded in this case and request for 2 production of documents initially propounded in this 3 case are still applicable. That is, we have 4 documents in the HS & E library department that you 5 were invited to go look at once before, are still 6 there. And that is the repository of documents of 7 this company relating to the hazards of benzene. 8 MR. SIMON: I appreciate that they are 9 still there and I appreciate that they were offered 10 earlier in the case. They weren't offered to me 11 last year. And I promise you that I will not 12 voluntarily leave this building without seeing 13 those documents today. 14 MR. MOORE: Okay. But I just want to 15 say, you know, that if you want to see them we 16 need to make some arrangements. 17 MR. COLLINS: No, we're gonna do more than 18 that. Can we have an adjournment? 19 MR. SIMON: Sure. 20 [Recess] 21 MR. SIMON: When we left off, we were 22 discussing making arrangements to see the documents 23 that are kept at HS & E. Do you want to address 24 that now? 25 MR. MOORE: Well, there's no way he can JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 123 1 address it. Let me just tell you what our position 2 is. Discovery, in essence, has been completed. 3 You've been allowed to reopen discovery for a 4 limited purpose as identified by the judge. One 5 of those purposes was not to take advantage of the 6 opportunity presented to you when discovery was 7 first filed, or when you were here before. So 8 what I want to -- that's all I can tell you. 9 MR. SIMON: What our view is, just so 10 you'll understand there's a record of it, because 11 we are going to insist on it -12 MR. MOORE: I'm sorry. There's a record 13 14 MR. SIMON: So that there is a record, I 15 want to speak on the record that for the purposes 16 of the 46 or 48 boxes, those are the ones that are 17 the subject matter of the dispute. And I understand 18 you are going to allow us to look at those, with 19 certain limitations that you'll discuss. 20 MR. MOORE: Yes. 21 MR. SIMON: With regard to going to 22 HS & E, where the 30(b)(6) witness has testified the 23 documents are, I understand it's going to be your 24 view and is your view that there hasn't been any 25 segregation or any improper segregation. And since JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 124 1 no indices of those have been brought forward nor 2 any witness who is familiar with the structure of 3 the files in HS & E, we want to depose the woman who 4 runs the files down there, as well as look, not for 5 the purposes of.looking for other documents, but to 6 test that theory whether in fact they are down there 7 and what the index -- what their availability was. 8 I mean, that's the dispute. I don't want to fish 9 through your files. I want to see how readily they 10 are available if someone -11 MR. MOORE: I understand. I understand. 12 Let's go ahead. This witness can't help us with 13 that. Let's go ahead. 14 MR. SIMON: Okay. 15 Q Now No. 11. 16 A Where did my -17 Q I'm sorry. I don't believe I snatched it. 18 MR. MOORE: Here it is. 19 A Thank you. 20 MR. SIMON: 21 Q No. 11 says the identity of any and all 22 additional documents concerning the health hazards 23 posed by exposure to benzene-containing products 24 beyond those contained in the recently-uncovered 25 benzene binder. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES 'INC. 125 1 MR. MOORE: I think we -2 MR. SIMON: Let me just finish -3 MR. MOORE: I think we discussed that and 4 then got into the conversation that you just went on 5 the record about. 6 MR. SIMON: Okay. Let me then pose 7 some questions about that just for purposes of 8 clarification. 9 Q Mr. Faulk, have you reviewed what we've so 10 far called the blue binder? And we're going to see 11 a copy. Have you reviewed the contents of that at 12 any time? 13 A Not since I left Shell. 14 Q Okay. Have you reviewed the contents of 15 the 46 or 48 boxes at any time? 16 A Yes. 17 Q Since you left Shell, you reviewed them? 18 A Yeah. 19 Q When did you review them? 20 A Monday. Let's go back. Review. I have 21 seen the binder itself, what you are talking about. 22 This binder. And I have flipped through it. 23 Insofar as studying it or making a special effort 24 to determine exactly what's in it, all that stuff, 25 I have not. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 126 1 Q Did you make any effort to determine 2 whether anything was missing from it that was 3 there when you left Shell? 4 A I didn't observe if there was anything. 5 Q Did you make any effort to determine if 6 there was anything missing? 7 A Yes. 8 Q And what did you find out? 9 A There was nothing. 10 Q What about with regard to the 46 or 48 11 boxes? 12 A To my knowledge, they're exactly the same 13 as I left them. 14 Q How much time did you spend looking at 15 them? 16 A Several hours. 17 Q When did you do that? 18 A Monday. 19 Q Were you paid by Shell to do that? 20 A No. 21 Q Where did you review those boxes? 22 A In a room where they were stored. 23 Q In this building? 24 A No, it was in Two Shell Plaza. 25 Q Is that where they are now? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -I-NC. 127 1 A I have no idea. 2 MR. COLLINS: No. 3 MR. SIMON: Did you say "no," Ray? 4 MR. COLLINS: No. 5 MR. SIMON: Mr. Collins. 6 Q Are you aware of any documents that were 7 in the Shell files, at the time of your employment, 8 that concerned the health hazards posed by exposure 9 to benzene products beyond those that are in the 46 10 to 48 boxes that were in Two Shell Plaza when you it saw them earlier this week? 12 A Certainly. 13 Q Which are those? 14 A There are thousands of them in the 15 Health, Safety & Environment files and presumably 16 in hundreds of other locations around the company. 17 Q Are you aware of any documents prior -- that 18 are dated prior to 1950 that indicate health hazards 19 posed by exposure to benzene-containing products 20 other than those in the 48 boxes that were in Shell 21 files at the time you left? 22 A No. I don't believe so, no. 23 Q Are you aware of any prior to 1960 that 24 are not in those boxes that deal with the benzene25 containing products? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES ZXC. 128 1 A I don't know. I really can't answer that. 2 Q Why can't you answer that? 3 A I don't know. 4 Q I asked you if you were aware of them. 5 A I don't recall being aware of any. 6 Q I trust that you are the witness who will 7 testify about the identity of the document entitled 8 Benzene Litigation: Duties, Defenses and Strategies, 9 by Richard O. Faulk. 10 A That's correct. 11 Q Are you the witness who is going to.testify 12 about the identity of the individuals who attended 13 the meeting that I believe you said it was April 6, 14 is that the right date, of 189? 15 A Yes. 16 Q Who was there from Shell? 17 A Mr. Ted Long, I believe some people from 18 toxicology, Gary Vangelder. I can't recall whether 19 there was one or two other people with him. 20 Q What's Ted Long? What was Ted Long's 21 position? 22 A He's an attorney for Shell Oil Company. 23 Q What division? 24 A At that time, he was in the chemical 25 section of the legal department. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES, 129 1 Q Is that in the litigation division that you 2 described? 3 A No. That's a longer story. 4 Q Why don't you tell me about it? 5 A I knew I shouldn't have said that. At the 6 time that this was taken, there was no litigation 7 division for Shell. Originally there was, but at 8 the time this was going on, the litigation division 9 was dissolved pursuant to a reorganization and 10 certain litigators had been assigned to the business 11 chemical department as well as other departments in 12 the legal department. 13 Q So was Mr. Long at that time involved in 14 the defense of benzene leukemia cases? 15 A I presume. I believe he was managing some. 16 Q Do you know which cases he was managing? 17 A No. 18 Q Was Mr. Collins at that meeting? 19 A No. 20 Q Was he invited to the meeting? 21 A Not by me. 22 Q Was he invited by anybody else? 23 A I don't know. 24 Q Did you, on April 6, 1989, know which 25 attorneys in the Shell -- Shell Oil Company's legal JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 130 1 department were involved in the defense of benzene 2 litigation, benzene leukemia cases? 3 A By rumor, some, not all. 4 Q Who did you know who was involved in 5 benzene litigation? 6 A I had mentioned, I think, Mr. Aurelius was 7 managing some. He was in a different department. 8 Mr. Long. And I think that's -- that may be all 9 that I was aware of. 10 Q Did you coordinate your efforts with the it other attorneys in any way who were defending 12 benzene leukemia cases? 13 A No. 14 Q Did you know Mr. Collins on April 6, 1989? 15 A Yes. 16 Q Did you know whether he was involved in any 17 benzene leukemia cases at that time? 18 A No. 19 Q Did you ever come to learn he was involved 20 in benzene litigation cases? 21 A Only by virtue of this exercise we're going 22 through. 23 Q When did you first find out that he was 24 involved in this case? 25 A Sometime last year. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES XkC. 131 1 Q When last year? 2 A I don't know. Sometime before I went to 3 work for Akin Gump. 4 Q How is it that you came to find out in that 5 time you were working for Strong Pipkin, which was 6 in the early to mid part of last year, that 7 Mr. Collins was working on this case? 8 A I don't remember how I learned it. 9 Q Do I understand you to say that you found 10 out about Collins working on the case not while you 11 were at Shell but while you were at Strong Pipkin? 12 A Uh-huh, that's correct. 13 Q Did you ever discuss the case with Collins? 14 A No. Well, I mean, other than the exercise 15 we're going through here. 16 Q When did this exercise we're going through 17 here start? 18 A As far as I was concerned? 19 Q Yes. 20 A When I learned there was a discovery 21 dispute. 22 Q When did you learn that? 23 A I think I testified within the last month 24 or so. 25 Q Do you know who it was that told you that JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 132 1 Collins was involved in this case? 2 A No, I don't remember. 3 Q Do you know if any other attorney was 4 responsible for this case at the time of the April 5 6, 1989, meeting? 6 A No. 7 Q How is it -- I just need to understand. 8 How is it that you conducted a meeting to discuss 9 the defense of benzene leukemia cases in 1989, while 10 you were a full-time employee of Shell in the legal 11 department, and you didn't make any determination to 12 find what other attorneys here were doing that so as 13 to invite them to the seminar? 14 A How is it? 15 Q Yeah. I don't understand. It seems to me 16 that you -- it would be an obvious thing to do.. Your 17 associates that work on the same floor have the same 18 task and you invite lawyers from other companies but 19 don't invite people from your own company. Why is 20 it that you did that? 21 A There were a limited number of seats. And 22 I invited Ted because he had expressed interest in 23 it. 24 Q You didn't make any determination as to who 25 else was doing this kind of work? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 133 1 A I told you I surmised other people were, 2 but I wasn't sure. 3 Q But you didn't make any effort to determine 4 who they were at that time? 5 A I didn't make a special effort, no. 6 Q Did you make any effort, in the process 7 of preparing the materials for the seminar and the 8 seminar, to make sure that the other attorneys in 9 Shell's legal department who were working on benzene 10 leukemia cases would get the benefit of the seminar it in terms of its materials or teaching? 12 A I'm not sure I understand your question. 13 Q Well, you taught a -- you participated 14 in teaching a seminar about how to defend benzene 15 leukemia cases. And I believe you've testified that 16 you didn't go out of your way or make any effort to 17 find out who else working at Shell with you were 18 defending these cases so as to invite them. 19 Now I'm asking you the next step. Did you 20 go, either at or during the seminar, and contact one 21 of your superiors and say, "I think you ought to 22 distribute the materials to everybody who is in 23 the Shell legal department doing this kind of legal 24 work"? 25 MR. MOORE: I'm sorry. The question is JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 134 1 what, Ron? 2 MR. SIMON: I'm trying to figure out how 3 it would be that Mr. Faulk taught a seminar about 4 benzene leukemia cases that he was working on on 5 behalf of Shell, there's other attorneys that work 6 on the same floor where we sit now, working on the 7 same kind of cases, and he never thought to invite 8 them to the seminar or to even get them the 9 information. 10 MR. MOORE: Well, can you tell me what the 11 question is? 12 MR. SIMON: The question is: 13 Q Did you make any effort to get them the 14 information outside of inviting them to the seminar? 15 A Not that I recall. 16 Q Did you ever offer to hold a seminar for 17 the Shell lawyers who were defending benzene 18 leukemia cases? 19 MR. MOORE: The reason for -- this is the 20 same issue that we discussed before. Many of the 21 same issues that were discussed here at this seminar 22 had been -- he -- just in the course of handling 23 these matters, he was in conversation with other 24 Shell lawyers who were interested in and 25 participating in the defense of these cases. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES.INC. 135 1 And that's privileged material.. 2 A Not outside the context of privileged 3 attorney-client communications. 4 MR. SIMON: 5 Q But you've already, I think, testified 6 that -- I asked you whether you knew Mr. Collins 7 was working on these cases, and you said no. Is 8 that right? 9 A That's true. 10 Q And I asked you whether you knew of any 11 other attorney that was working on them before 12 Collins, and you said no. Isn't that right? 13 A That's true. 14 Q I want to know if you made any other 15 effort -- I'm trying to understand how it could be 16 that Mr. Collins is a lawyer on the same floor that 17 you are on with an almost identical task of 18 defending benzene leukemia cases that you are 19 holding seminars about and you didn't make any 20 effort to -21 MR. MOORE: Ron, Ron, I think one of -- one 22 of the premises that you are basing your question on 23 was not correct. 24 MR. SIMON: What's that? 25 MR. MOORE: They didn't have identical JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 136 1 tasks. And that goes to the distinction of lead 2 lawyer and managing lawyer. And that may be a 3 source of some confusion. 4 MR. SIMON: Well, I stand corrected on 5 that. 6 Q You had other lawyers on this floor who 7 were involved in the defense of benzene leukemia 8 cases.- How did it come that you didn't make any 9 effort to inform them of the materials that you 10 were producing in your seminar? 11 MR. MOORE: Are you asking him why didn't 12 he inform every lawyer working for Shell? Or why 13 didn't he make an inquiry as to who were the group 14 that were handling benzene cases? 15 MR. SIMON: The latter. 16 MR. MOORE: I mean, because -- okay. 17 MR. SIMON: 18 Q Why didn't you make that inquiry? 19 A I was a trial lawyer for the company. Ted 20 was a managing litigation lawyer, as well as doing 21 other legal tasks for the company. I don't recall 22 that I had a thought process other than I thought 23 inviting Ted was enough to have him -- if he needed 24 to tell anybody, he could tell the people that did 25 the job like he did. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATESINC. 137 1 Q Did you suggest to Ted that this material 2 ought to be given to the other lawyers? 3 A Never made any such suggestion. 4 Let's take a break for a minute. 5 MR. SIMON: Sure. 6 [Recess] 7 MR. SIMON: Let's mark this one. 8 [Exhibit 6 marked] 9 MR. SIMON:. 10 Q Do you want to identify this one for me? it A Okay. 12 Q Identify it, please. 13 A That's a copy of the presentation outline, 14 actually, viewgraphs, copies of the viewgraphs that 15 were give n at the presentation at Tyler's office. 16 Q And where are the viewgraphs now? 17 A I have no idea. is Q Were those prepared here at Shell? 19 A Yeah, I think so. 20 Q So Shell paid for the materials in the 21 viewgraph s? 22 A I don't know. 23 Q You didn't pay for them personally, did 24 you? 25 A I didn't pay for them, no. NELL JERRY KELLEY, MCCALLUM & CSR ASSOCIATES INC. 138 1 Q All right. 2 With regard to this document we've marked 3 as Deposition Exhibit 6, are you aware -- putting 4 aside this litigation, meaning the activities that 5 occurred in this litigation since January 1 of 1991, 6 which I'll jdst mark as sort of the discovery 7 disputes from my standpoint, are you aware of any 8 employees at Shell who got copies of Exhibit 6? 9 A Other than Ted, who may have attended the 10 meeting. He's the only one I can think of who would it have. 12 Q To your knowledge, it wasn't distributed to 13 Shell's legal staff? 14 A No. 15 Q Was it distributed to everybody at the 16 seminar? 17 A It was available. 18 Q Could you make -- explain to me the 19 distinction between available and -20 A Stack of copies. People could pick them up 21 if they wanted. 22 Q Are you the witness to testify to No. 14, 23 the identity of all correspondence, memoranda, 24 reports by or to Mr. Faulk pertaining to the 25 segregation of the documents, why they were JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 139 1 segregated and/or where they were stored? 2 A Yeah. 3 Q Why don't you tell me about your 4 relationship with Mr. Tyler? Did you hire 5 Mr. Tyler? 6 A No. 7 Q Who hired Mr. Tyler to do the work in the 8 Skeen -- reviewing the Skeen case? 9 A Shell Oil Company did. 10 Q Who chose him? 11 A I presume the decision was made by 12 James Evans, the assistant general counsel. 13 Q Did you have any input in that decision? 14 A I attended Mr. Tyler's presentation. 15 Q Which presentation was that? 16 A A presentation he gave to demonstrate the 17 abilities of his firm to assist us. 18 Q And when did he make that presentation? 19 A Sometime in 1987. 20 Q What do you remember about the 21 presentation? 22 A It was a luncheon presentation, John 23 distributed some sample materials, played an example 24 of a videotape that he had done in an injury case to 25 give us an idea of what they had done. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -INC. 140 1 Q Did you make any statements to Mr. Evans 2 or anyone either recommending or not recommending 3 Mr. Tyler? 4 A I told him I thought John would do a good 5 job for the role we were looking for. 6 Q What role was it that you were looking for? 7 A A supporting role for me. 8 Q When you say supporting, what did you need 9 done? 10 A Well, I -- given the what we expected to be 11 a large volume of work in the numerous cases at Deer 12 Park, we felt like our in-house resources insofar as 13 just bodies that we could devote to it to defend the 14 cases were inadequate. 15 And so John's firm was hired on, after 16 interviewing other firms as well, and -- to help, 17 to provide resources when we needed them. 18 Q But you were going to be the lead lawyer in 19 the cases? 20 A That is true. 21 Q You were going to try the cases? 22 A Yes. 23 Q Was there anything particular about his 24 presentation or his qualifications that led you to 25 recommend him? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES ZNC. 141 1 A I just felt like he could do a good job in 2 a supporting role. 3 Q What were his particular traits that you 4 thought would make him do a good job in a supporting 5 role? 6 A Well -7 MR. MOORE: What's that got to do with 8 anything? 9 THE WITNESS: Traits he had? 10 MR. SIMON: 11 Q Yeah. 12 A I suppose the experience that he expressed 13 to me, the -- his enthusiasm for the work. I think 14 his enthusiasm for the work was the most important 15 thing to me. 16 Q Did, to your knowledge, Mr. Tyler ever come 17 to know about the Soley document? 18 A I believe so. 19 Q When did he come to know about it? 20 A At some point we discussed it. I can't 21 remember exactly when. 22 Q Well, what do you remember about it? 23 How did it come up? 24 A We were talking -25 MR. MOORE: Excuse me. You say: How JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES .ANC. 142 1 did it come up? If it came up in the context of 2 preparation for litigation or in anticipation of 3 litigation, then it's not a permissible area of 4 inquiry. 5 THE WITNESS: That's exactly how it came 6 up. 7 MR. SIMON: I'm going to state again, and 8 we're going to mark the transcript, because I 9 reviewed my files,-that the attorney work product 10 is an explicit exception to the -- let's state it 11 properly. Inquiries into improper conduct is an 12 explicit exception to the attorney work product. 13 And that's precisely what we're here for. Whether 14 this segregation was proper or not. And the fact 15 that the judge has specifically -16 [THE TRANSCRIPT WAS MARKED] 17 MR. MOORE: Well -18 MR. SIMON: Let me just finish my 19 statement, then I'll let you -- I won't interrupt 20 you, or I'll try not to. 21 And the fact the judge has specifically 22 authorized us to depose Mr. Faulk and Mr. Collins 23 with regard to the issue of the segregation suggests 24 very strongly to me, and I heed you that these are 25 appropriate questions and we're just going to be JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 143 1 back down here if we don't get some answers. This 2 is what we're here to find out about, how these 3 documents came to be never disclosed to the 4 plaintiffs. That's what we're here for. 5 MR. MOORE: Well -- 6 THE WITNESS: Let me say this. The 7 existence of the document was disclosed to Mr. Tyler 8 in the context of privileged attorney-client 9 communication between he and I. 10 MR. SIMON: 11 Q With regard to what case was that? 12 A With regard to all the cases he was working 13 on. 14 Q Were there any cases besides the Deer Park 15 cases? 16 A No. 17 Q And it was never disclosed to the plaintiff 18 in the Deer Park cases, was it? 19 A I think I've already answered that. 20 Q And the answer was no? 21 A I believe that's what I said. 22 Q Okay. 23 Now, what's your best recollection of when 24 Tyler made his presentation trying to get the work? 25 I wrote down 1987. Do you have any better JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 144 1 recollection than that? 2 A Not really. It was shortly after the cases 3 had been filed. 4 Q After the Deer Park cases had been filed? 5 A Whenever that was. 6 Q Now, how did the -- help me understand how 7 the -- it seems that I know of two tasks that Tyler 8 did for Shell: 9 One was defend the Deer Park cases or 10 support you in the defense of the Deer Park cases 11 And 2 was his review of the Skeen trial, 12 second Skeen trial. 13 How did those two tasks relate? 14 A They were actually part of the same 15 task. The same attorney, plaintiff's attorney, was 16 involved in the Skeen trial, and the same issues 17 were involved in the Skeen trial. It was the same 18 type of case. And so a decision was made that we 19 should study it and observe it and learn as much as 20 we can about it, because we would probably or at 21 least expected to face the same issues and 22 situations. 23 Q Now I'm confused. I thought that my 24 reading of your memo said that O'Quinn was the 25 plaintiff's lawyer in the Skeen cases. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 145 1 A That's correct. 2 Q You didn't identify O'Quinn as 3 the plaintiff's lawyer -4 A Mr. Leach was associated with his office. 5 But Mr. O'Quinn did not work on the cases. 6 Q On the Deer Park cases? 7 A That's correct. 8 Q And so that your best recollection -- I'm 9 just repeating myself, forgive me -- is that he made 10 the presentation in 187 and at that time you were 11 looking for an attorney to work with you on the 12 Dear Park cases which had been filed. 13 A That's correct. 14 Q And when was it that you came to make him 15 aware of the Soley document? 16 MR. MOORE: Excuse me. We've objected to 17 that. If you want to get into the reasons for the 18 "segregation," you're entitled to do that, but 19 you're not doing that right now, Ron. 20 MR. SIMON: I believe it's the same 21 question. I think we're fighting about semantics. 22 MR. MOORE: Okay. Well, if we are, I 23 apologize. But when I hear you asking him about 24 segregation, then I know we're on the right track. 25 Or at least I'm on the right track. JERRY KELLEY, CSH NELL MCCALLUM & ASSOCIATES ZNC. 146 1 MR. SIMON: Well, when I asked him 2 segregation, he told.me it was not the right word, 3 as I remember, this morning. So I'm trying to ask 4 him about the documents. I'm avoiding "segregation" 5 because I thought you didn't like it. 6 MR. MOORE: All right. I'm just trying to 7 understand. Continue. 8 MR. SIMON: 9 Q Tell me when you told him about the Soley' 10 document. 11 A I don't remember. 12 MR. MOORE: I object to that, because 13 that's -- that goes into what he told him, when 14 he told him and the context. 15 MR. SIMON: No, I -16 MR. MOORE: The fact that he told him 17 about it in the context of litigation, we say, or in 18 anticipation of it, it's part of his work product in 19 preparation for the trial of that case or those 20 cases. 21 MR. SIMON: Maybe you could conduct the 22 examination for me. He only worked for him with 23 regard to one project. That was the project in 24 which he found out about all these documents you 25 tell me I can't ask about. Maybe you could tell me JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 147 1 how you want me to ask these questions. 2 MR. MOORE: I didn't understand it that 3 way. But ask the questions the best you can, and I 4 will object if I think that that needs to be done. 5 MR. SIMON: 6 Q When did you become aware of the Soley -7 MR. MOORE: I've already objected to that, 8 because I think that his answer by necessity 9 includes discussions between lawyers involved in the 10 project of defending a lawsuit that, as I understand 11 it, is still pending. 12 MR. MOORE: I didn't ask him anything about 13 his discussions, I asked him when -14 MR. MOORE: You said when. 15 MR. SIMON: He's already told us that he 16 told him. I'm just asking for the date. That's not 17 going to give his thought processes. 18 MR. MOORE: Well, why don't you go ahead. 19 A I'm obliged not to answer on the advice of 20 counsel. I'm sorry. 21 MR. MOORE: Why don't you go ahead and ask 22 him about the issue of segregation as you understand 23 it and let's go from there? 24 MR. SIMON: 25 Q I understand that you are saying that JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 148 1 counsel from Roanoke is your counsel even though 2 you're no longer a Shell employee? 3 MR. MOORE: No, no, no. We established 4 earlier that he doesn't have counsel, and that when 5 Shell asserts a privilege that the witness has no 6 discretion about the matter at all. When his client 7 asserts a privilege, he has to go along with it. 8 MR. SIMON: 9 Q Mr. Faulk, as you sit here today, have you 10 reviewed the law concerning the attorney work 11 product? 12 A In what context? 13 Q In the context of your being here today. 14 Have you reviewed it in preparation for your being 15 here? 16 A I have not. 17 Q Have you consulted counsel with regard to 18 that subject? 19 A I have not. 20 Q Have you reviewed the law with regard to 21 the attorney-client privilege in preparation for 22 your coming here today? 23 A I have not. Not outside my normal training 24 and experience over my 15 years of practice. 25 Q Have you consulted counsel with regard to JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 149 1 that subject? 2 A What subject? 3 Q The subject of the attorney-client 4 privilege. 5 A I think I answered that. 6 Q Okay. 7 Have you reviewed the Code of Professional 8 Responsibility as it applies to whether an attorney 9 in a firm which represents a client can also be a 10 witness in a case, in preparation for this 11 deposition today? 12 A I have not. 13 Q Have you ever looked at those provisions? 14 A I have occasionally. 15 Q What provisions are they? Can you tell 16 me? 17 MR. MOORE: Well, what's the point of 18 this? Are you saying that he is acting unethically 19 because he is appearing as a witness? 20 MR. SIMON: I'm saying there's a potential 21 conflict of interest that bars the representation of 22 his firm -23 MR. MOORE: Well, if you think that there 24 is, then you should file a motion to disqualify Akin 25 Gump. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -INC. 150 1 MR. SIMON: I intend to. I'm setting a 2 predicate for that right now. 3 MR. MOORE: No predicate involved. He's 4 employed by Akin Gump, it's on the record. Akin 5 Gump is counsel for Shell among others in this 6 case. If you think his testimony today is grounds 7 for disqualification, then file the motion. 8 MR. SIMON: It may be. 9 MR. MOORE: But don't argue with this 10 witness about it. 11 MR. SIMON: I'm not arguing with him. 12 MR. MOORE: He can't argue with that. 13 MR. SIMON: The man has said he has come 14 here without counsel, he is an attorney, he has not 15 reviewed those -16 MR. MOORE: All right. 17 MR. SIMON: Wait. Just let me finish, 18 please, and I'll allow you. He has not reviewed 19 those sections of the Code of Professional 20 Responsibility that concern attorney work product 21 nor the law that pertains to it nor attorney-client 22 privilege. The law is extraordinarily clear that 23 those privileges do not apply when the concern is 24 whether there has been misconduct. He's an 25 attorney. And you are objecting. You are not his JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES .ZNC. 151 1 attorney. He doesn't have an attorney and he has 2 told me he has not looked at the law. And I need 3 to establish that. 4 MR. MOORE: All right. You've established 5 it. 6 A You haven't established that he's not my 7 counsel for purposes of being a 30(b)(6) 8 representative, which he is. 9 MR. SIMON: 10 Q So you are a 30(b)(6) representative of 11 Shell today? 12 MR. MOORE: Yes. We established that at 13 9:00 this morning. 14 MR. SIMON: 15 Q And you are also a member of the firm that 16 defends Shell, is that correct? 17 A No. 18 Q In this case? You're an employee of that 19 firm? 20 A I am. 21 Q And you're an attorney employee of that 22 firm? 23 A I am. In the Houston office. 24 Q Was there anybody from Akin Gump at the 25 meeting on April 6th? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 152 1 A No. 2 Q Did you make anyone from Akin Gump aware of 3 the Soley document at any time? 4 A No. 5 Q Never? 6 A No. 7 MR. HOBSON: That's a double negative. 8 MR. SIMON: 9 Q Am I correct in my understanding that 10 you never made anybody at Akin Gump aware of the 11 existence of the Soley document? 12 A Well, not before the emergence of the 13 document in the context of this discovery dispute. 14 Q Did you make anybody at Akin Gump aware of 15 the fact that you had collected these 46 to 48 boxes 16 that we're going to inquire into? 17 A No. 18 Q Did you make anybody at Akin Gump aware 19 that you had put certain documents into plastic 20 binders that concerned benzene leukemia? 21 A No. Again, not before the emergence of 22 this discovery dispute. 23 Q When you left Shell, did you take copies 24 of any of the documents in those 46 to 48 boxes with 25 you? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 153 1 A No. 2 Q Did you take any copies of -3 A Well, let's strike that. Certain forms 4 I may have taken, such as interrogatory forms and 5 things like that. 6 Q Did'you take copies of the Soley document? 7 A No. 8 Q Did you take with you any of your 9 correspondence files that you generated while 10 you were with Shell? 11 A No. 12 Q Going to what we've labeled now as 13 Deposition Exhibit 6, could you tell me when 14 you wrote that? 15 A Sometime probably in late March, early 16 April of -- was it 1988? 17 MR. MOORE: 1189. 18 A 1189. I'm sorry. 19 MR. MOORE: Is when the seminar was given. 20 A Sometime prior to the seminar. 21 MR. SIMON: 22 Q Did you write it on your own time or here 23 in the office? 24 A On my own time. 25 Q Did you write it at home or in the office? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 1 A At home. 154 2 Q You typed it? 3 A I think I brought it up on a disk from my 4 home, my computer at home, and my secretary ran it 5 off. 6 Q And were there Xerox copies of it made? 7 Were there Xerox copies of it made? 8 A Ultimately, yes. 9 Q And did you make those or did Shell make 10 them? it A I think Mr. Tyler's office made them. 12 Q Now, how is it -- why don't you tell me 13 how it is that you came -- what was the purpose of 14 writing this document? 15 A A number of people that we had talked to 16 and that I had talked to specifically had expressed 17 an interest in what I had learned through my 18 experience in working on benzene cases. And 19 this was an effort to share what information 20 and experience and ideas I had. 21 Q Who were the people that were interested 22 in your information? 23 A I've named them. They were the invitees. 24 Q But you didn't feel any need to share them 25 with the lawyers on Shell's legal staff other than JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 155 1 Mr. Long? 2 A No. 3 Q How many copies of it were made and handed 4 out at that meeting? 5 A I don't have any idea. 6 Q How many people were at the meeting? 7 A I'm not really sure. 15, maybe 20. Maybe 8 less than that. I don't know. 9 Q Can you name any of the others that were 10 there besides -- you named the ones that you invited it from a number of oil companies. We named Wong and 12 Irons. Anybody else that you can remember that was 13 there? 14 A There may have been some representatives 15 from Eastman Kodak. And I can't recall whether 16 there was anyone there from Upjohn or not. There 17 was some question about whether someone would 18 attend. I don't recall whether they came or not. 19 Q Eastman Kodak was a client of Mr. Tyler's? 20 A That was my understanding. 21 Q So from Mr. Tyler's standpoint, as you 22 understood it, this was kind of a marketing meeting 23 for him to get some more clients? 24 A He may have viewed it that way. I 25 certainly didn't view it that way. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 156 1 Q Did you notice any documents that suggested 2 it that way? 3 A No. 4 Q Was Conoco there? 5 A No. 6 Q Phillips? 7 A No. 8 Q Anyone from Occidental there? 9 A No. 10 Q Are you familiar with this -- was this 11 Page 23 handed out with Tyler's bio? 12 A I don't remember. 13 Q You don't remember? 14 A No. 15 Q Is this sentence that we read here, 16 "Mr. Tyler seeks to expand his client list in toxic 17 tort and exposure cases," any reason to think that 18 wasn't in the handout? 19 A I don't know. 20 Q Doesn't seem inconsistent with what 21 Mr. Tyler was doing at the meeting? 22 A Mr. Tyler was sharing information. If he 23 got business as a result of that, there's nothing 24 illegitimate about that. 25 Q Now tell me why it was that you wrote this JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 157 1 document. 2 MR. MOORE: Asked and answered. 3 A I'm not going to repeat myself. 4 MR. SIMON: 5 Q To share information? 6 A That's what I said. 7 Q Now, I think it says here in Exhibit 6, on 8 Page 23, I'll just show it to you to make sure I'm 9 not misleading you,. "Mr. Tyler is currently 10 preparing a leading article on this subject with" --11 MR. MOORE: Excuse me. That's Exhibit 4. 12 MR. SIMON: Thank you. Now we'll have a 13 clear record. 14 Q "Mr. Tyler is currently preparing a leading 15 article on this subject with Mr. Richard O. Faulk." 16 Is that true? 17 A Yeah. 18 Q Did you do that? 19 A No. 20 Q Why not? 21 A It was just never finished. 22 Q Is there a draft of it? 23 A I don't know. I don't have it. 24 Q Did you work on it? 25 A Yeah, a little bit. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 158 1 Q Did you work on it at home or here at 2 Shell? 3 A At home. 4 Q Your testimony with regard to No. 4 -- 6, as 5 I understand it, is that you wrote this at home. Is 6 that right? 7 A Yes. 8 Q What kind of computer do you have at home? 9 A An IBM clone. 10 Q Is that the kind of computers they have 11 here? 12 A Yes. 13 Q Did you print it at home or just bring your 14 disk in? 15 A I think I brought the disk in. 16 Q Do you have a printer at home? 17 A Yeah. 18 Q But you never printed it out at home? 19 A No, it was a dot matrix. 20 Q Now, let's go down No. 6. And forgive me, 21 I don't have another copy with me. Says, "Benzene 22 Litigation: Duties." What do you mean by that? 23 Whose duties? 24 A I believe the paper is pretty self25 explanatory. Duties of the manufacturers of JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 159 1 products suppliers. 2 Q And that's your -- your review was to 3 the legal duties of the suppliers of the product? 4 That's what you mean by that? 5 A Yeah. 6 Q What about strategies? What do you mean by 7 that? 8 A Strategies used or contemplated or -9 in the defense of cases against suppliers or 10 manufacturers. 11 Q Let's go to the bottom here. You stated: 12 "The opinions expressed herein are soley those of 13 the author and do not necessarily represent the 14 views of Shell Oil Company." 15 A That's right. 16 Q Were those your words? 17 A Yes. 18 Q Did you run this by anybody at Shell who 19 asked you to write that on there? 20 MR. MOORE: I thought that was the -- the 21 judge said that was prohibited. 22 MR. SIMON: I think it was prohibited as 23 to who he ran it by. And I'm only asking him a very 24 limited question now. The limited question was 25 whether this suggestion of this "not necessarily" JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES XNC. 160 1 language came from someone here at Shell. 2 MR. MOORE: Well, he said that it was his 3 language. And the judge said you may not inquire of 4 what the witness -- what discussion the witness had 5 with people at Shell about the preparation of the 6 document or the dissemination of it or anything 7 else. So I don't see how you can ask the question 8 you just asked. 9 MR. SIMON: I don't think the judge -10 MR. MOORE: Well, I object to it. And 11 maybe -- my objection is based on what I understand 12 the judge ruled. 13 MR. SIMON: The judge ruled that in terms 14 of the approval process that he went through, who he 15 got approval from, what kind of approval, thatts 16 what he ruled. He did not rule -17 MR. MOORE: The information I have is that 18 the judge ruled that the witness may not be deposed 19 about any private conversations with Shell Oil 20 Company, such as discussions about approval of the 21 document-production strategy with Shell colleagues 22 or superiors. 23 Now, I understand the question you just 24 asked to be exactly in the prohibited area. I 25 therefore object. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 161 1 MR. SIMON: Let's go off the record for a 2 second. 3 [Discussion off the record] 4 [Recess] 5 MR. SIMON: Back on the record. 6 Q Let me see if I then understand what it 7 is that your words mean. Your words mean here, the 8 opinions herein are soley those of the author, that 9 this entire product does not represent the opinions 10 of Shell? 11 A That's entirely correct. 12 Q And this is not Shell's view of its duties? 13 A I have no idea what Shell's view of its 14 duties are. 15 Q It's not Shell's idea of its defenses? 16 A It may o r may not be. I don't know. 17 Q This is not Shell's idea of its strategies? 18 A No. 19 Q This is purely your pers onal view of what 20 the dut ies of the companies are, and the strategies -- 21 A That is correct. 22 Q -- could or should be? 23 A That is correct. 24 Q Did you in any way rely on this document in 25 the per formance o f your duties at Shell? JERRY KELLEY, NELL MCCALLUM & CSR ASSOCIATES "INC. 162 1 A No. 2 MR. MOORE: I object. And I object because 3 it deals with his impressions and thought processes 4 while acting as a lawyer for Shell in the conduct of 5 litigation. And that is privileged. 6 MR. SIMON: Would you read back his 7 comments? 8 [The record was read as requested] 9 MR. SIMON: 10 Q Does this document, sir, represent your 11 impressions or thought processes while acting as 12 a lawyer for Shell in benzene cases? 13 MR. MOORE: I object to that. You can't 14 ask him what his thought processes were while acting 15 as an attorney for Shell. 16 MR. HOBSON: That wasn't the question. 17 MR. MOORE: He said: Does the document 18 represent that? Isn't that the same thing? 19 MR. HOBSON: No. 20 MR. MOORE: Well, I think it's the same 21 thing. 22 MR. SIMON: We're having a terrible problem 23 here because you sit here all morning and say 24 there's a privilege, then he writes something and 25 says it's his own personal point of view, and then JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES`INC. 163 1 when I ask him about it, no, it's Shell's 2 activities. Which is it? 3 MR. MOORE: He's never said it was Shell's 4 activities. 5 MR. PICKLE: We're not getting anywhere 6 arguing all this stuff on the record. The decision 7 isn't going to be made in this room. You've made 8 your objection. If you want to mark it and take it 9 up with the judge, let's take it up and go on. 10 MR. SIMON: We'll mark it. That's a good 11 idea. 12 [THE TRANSCRIPT WAS MARKED] 13 MR. SIMON: 14 Q Does this document marked as Exhibit 6 15 reflect your impressions or thought processes while 16 acting as an attorney for Shell Oil Company? 17 MR. MOORE: And I object and assert the 18 privilege, because you are asking him to identify 19 material to which you are not entitled to an 20 answer. 21 MR. HOBSON: We need the witness's 22 response. 23 MR. MOORE: You may not get the witness's 24 response. 25 MR. HOBSON: Well, I mean that he's not JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 164 1 going to answer. 2 MR. MOORE: Well, I object and ask him not 3 to answer. 4 A I accede to counsel's request. 5 MR. SIMON: 6 Q Let's go to Page 18. 7 A 18? 8 Q Yes, sir. 9 MR. PICKLE: This is still Exhibit 6, Ron? 10 MR. SIMON: Yes. 11 A Okay. 12 MR. SIMON: 13 Q The top line says "Industry Response: A 14 Comprehensive Strategy." Could you tell me what 15 that means? 16 A As I expressed, it was a response that was 17 suggested or that I suggested that could be used, if 18 followed comprehensively, to defend benzene cases. 19 Q So this is your personal suggestion to the 20 industry about a strategy? 21 A This is some ideas that I had. 22 Q This doesn't reflect the point of view of 23 Shell Oil Company? 24 A No. 25 Q Now -- JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES %'NC. 165 1 A Not that I'm aware of. It certainly does 2 not with respect to many of these. 3 Q Which ones do you know that it doesn't? 4 MR. MOORE: I object. You are asking him 5 now to tell what the defense strategy is for Shell 6 Oil Company about matters that are in litigation. 7 And if that isn't -- I mean, I object. 8 MR. SIMON: 9 Q When.you say a "comprehensive strategy," 10 what do you mean by comprehensive? 11 A A strategy that could be employed as a 12 skeletal guideline, perhaps uniformly looked at 13 on a case-by-case basis. 14 Q One of the things that I'm not -- I'm going 15 to try to do is -- did you mean comprehensive 16 meaning strategy: 17 A sort of soup-to-nuts strategy for a 18 single case? Or did you mean comprehensive that it 19 would be handled -= that's Option 1, soup-to-nuts on 20 a single case. 21 Or Option 2, used by a single defendant in 22 a number of cases? 23 Or option 3, used by a number of 24 defendants? 25 Or Option 4, necessarily -- and that's JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 166 1 what -- used by all the defendants in a case? 2 A I think Options 1 and 2, correct. 3 Q Okay. You don't mean by comprehensive that 4 it's sort of exclusive that all the defendants have 5 to pursue it together? That wasn't your suggestion? 6 A No . ' 7 Q You say coordinate all discovery requests. 8 What do you mean by that? 9 A Make sure you have a handle on the 10 discovery requests that come in against your 11 company. 12 Q Well, if you are saying that it's a 13 strategy for how you defend a single case, who 14 are you coordinating with? 15 A Presumably you are going to coordinate with 16 people in the company that are handling the cases. 17 Q So your suggestion was that all the people 18 who are handling, say, cases about fish all 19 coordinate together in their discovery? 20 A I think that's a fair estimate of what I 21 was saying. 22 Q Now let me go back to my earlier question. 23 If this on Page 18 was the recommendation that you 24 made, is this what you believed? 25 A I thought it was a good idea. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES dNC. 167 1 Q Did you recommend that to your superiors? 2 MR. MOORE: I object. 3 MR. SIMON: 4 Q I'd like to find out why it is if you 5 recommended.coordination on Page 18 and wrote it up 6 and put it on a slide overhead projector that you 7 didn't make any efforts to make sure that the other 8 attorneys working with you knew that that was your 9 suggestion. 10 MR. MOORE: Well, excuse me. You say it "other attorneys working with you." That implies 12 that he knew what they were working on. 13 MR. SIMON: I stand corrected. 14 Q That you didn't make an effort to find out 15 who else for Shell was working on benzene leukemias 16 and coordinate. 17 MR. MOORE: That's been asked and answered 18 several times. 19 MR. SIMON: Now I'm moving again. 20 MR. MOORE: I understand. But I don't see 21 how it's any different -22 MR. SIMON: Before, I asked him based on 23 my view of common sense that maybe it would be a 24 reasonable thing to do. Now I'm reading on Page 18 25 that he thought it was a reasonable thing to do, so JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES TNC. 168 1 I'm asking him again: Since you in your own words 2 thought it was a reasonable thing to do, why it was 3 that you didn't recommend -- try to go ahead and do 4 it or even recommend it. 5 MR. MOORE: Even though you prefaced each 6 question differently, it's still the same question, 7 and I object because it's been asked and answered. 8 MR. SIMON: 9 Q What did you want to answer? It's not 10 privileged. You can answer that. it MR. MOORE: You can answer. It's been 12 asked and answered -13 A I never testified that I didn't recommend 14 it. 15 MR. SIMON: Okay. 16 Q Did you recommend it? 17 MR. COLLINS: Objection. 18 MR. MOORE: Well, now -19 MR. COLLINS: Objection. 20 MR. MOORE: Objection in terms of who he 21 talked to at Shell or what he was doing with fellow 22 attorneys here with reference to defense effort. 23 MR. SIMON: I believe that we have a 24 problem here, because he has already testified -- 25 though occasionally you object and occasionally you JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 169 1 don't, he has already testified that he didn't make 2 any effort to find out who had benzene leukemia 3 cases and he didn't give them these documents. Now 4 I say: Did you recommend it? Why did you recommend 5 it? And he says: I didn't testify I didn't 6 recommend it. Now, which is it? We're having a 7 conflict in testimony, and I think it's interesting 8 the way the -- I'm going to go outside. 9 MR. MOORE: The question you asked before, 10 which was not objected to, was: Who was invited? it And then you asked: Why weren't more attorneys 12 invited from Shell? 13 And he said he just didn't invite more 14 attorneys from Shell. 15 And that was -- that's my recollection of 16 it. Now, you don't like that answer, so you keep -17 you keep badgering him and fussing with him about 18 it. But his answer is not any different or better 19 now than it was before. 20 MR. SIMON: 21 Q Did you recommend that the attorneys at 22 Shell working on benzene leukemia cases coordinate 23 all their discovery? 24 MR. MOORE: I object. 25 MR. SIMON: Why is that? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 170 1 MR. MOORE: Because it deals with the work 2 product of the lawyers at Shell in defending ongoing 3 litigation. 4 MR. SIMON: No, it was a recommendation 5 that he made. They don't have to follow his 6 recommendations. 7 MR. MOORE: Objection to the question. 8 It's outside the scope of -- well, we object as to 9 what Mr. Faulk recommended to lawyers at Shell that 10 Shell should do in the defense of benzene cases. it MR. SIMON: Are you going to instruct him 12 not to answer that? 13 MR. MOORE: Well, you are entitled to ask 14 the witness anything that there is that's relevant 15 to the segregation of documents. Some of that is 16 frankly what we view to be privileged, but you are 17 entitled to ask him that because the judge says that 18 you can. 19 MR. SIMON: Let's mark this spot. 20 [THE TRANSCRIPT WAS MARKED] 21 MR. MOORE: But in terms of discussions 22 among the lawyers and Shell about how the cases are 23 going to be defended in a general sense, no, you may 24 not inquire into that. 25 MR. SIMON: I'm engaging in here inquiry to JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 171 1 determine whether there's been proper activity in 2 segregating and filing documents, and this man here 3 recommended coordination, which is what we've seen a 4 pattern of, I believe, and I think I'm entitled to 5 an answer whether he recommended it be coordinated. 6 MR.'MOORE: No one has suggested there was 7 any improper activity in segregating documents. The 8 only one is made by you whether there was improper 9 activity on the part of Shell in responding to your 10 discovery request. That's the only question 11 involved in this matter. 12 MR. SIMON: I think the judge has said that 13 we were inquiring into the impropriety and the way 14 to get at it was through the segregation. But let's 15 not argue anymore. 16 Q What do you mean by "sensitive documents"? 17 A Documents which could prove damaging 18 through misinterpretation or in fact damaging 19 evidentiarywise. 20 Q Did you have any particular documents in 21 mind? 22 A No. 23 Q Now, you made a presentation this day, 24 didn't you? 25 A Uh-huh. Yes, I did. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES 'INC. 172 1 Q And you didn't make the presentation on 2 behalf of Shell Oil Company, did you? 3 A I did not. 4 Q You were speaking only on behalf of 5 yourself, weren't you? 6 A Yes. 7 Q Now, did you recommend that the other 8 companies coordinate, that all their lawyers 9 defending benzene leukemia cases coordinate with 10 each other? 11 A No. 12 MR. MOORE: Excuse me. 13 MR. SIMON: 14 Q You didn't? 15 A No. 16 MR. MOORE: I object to what he told 17 lawyers at Shell about -18 MR. SIMON: I just asked him about lawyers 19 at other companies. 20 MR. MOORE: Then I misunderstood the 21 question. Excuse me. 22 MR. SIMON: Let's read him back the 23 question. 24 MR. MOORE: No, you've clarified it for 25 JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES TNC. 173 1 MR. SIMON: 2 Q Do you remember the question? 3 MR. MOORE: He answered. He said no. 4 A I think the answer was no. 5 MR. SIMON: 6 Q Well, then, I don't understand what this 7 paper is. You said industry response. You said 8 coordinate, which is a verb, infinitive. Who are 9 you recommending coordinate? 10 . A As I answered your previous question when 11 I referred to examples one and two in the rather 12 lengthy dialogue that you had, I never talked about 13 intercompany coordination. This has nothing to do 14 with that at all. It was designed to make 15 suggestions to people as to what they could 16 do within their own individual company. 17 Q So your suggestion was that each company 18 within itself coordinate all the attorneys and 19 people that were responding to discovery in 20 benzene leukemia cases? 21 A I thought it was a good idea that they 22 get their act together within their own companies 23 regarding benzene. 24 Q And as I understand the sense of this, 25 the reason to get together under A was to avoid JERRY KELLEY, CSX NELL MCCALLUM & ASSOCIATES INC. 174 1 unnecessary disclosure of sensitive documents. 2 Is that correct? 3 A Unnecessary or inadvertent disclosure. 4 Q What do you mean by unnecessary? 5 A Producing a document that's not 6 responsive. Producing a document that's subject to 7 an objection and not being aware that the objection 8 is possible or relevant. 9 Q Did you discuss -- now, as I understood the 10 way you conducted this presentation, you put these 11 visuals on the overhead and did some talking, didn't 12 you? 13 A That's correct. 14 Q Now, did you talk about how -- what kind of 15 documents were sensitive? 16 A No. 17 Q You didn't mention them? 18 A No. 19 Q You didn't give any examples? 20 A No. 21 Q Did you explain what you meant? 22 A No. 23 Q How were people to know what you meant? 24 A I have no idea. Other than what my words 25 said. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 175 1 Q Are you aware of any examples from other 2 companies where the failure to coordinate led to 3 the unnecessary, inadvertent disclosure of sensitive 4 documents or information? 5 A No. 6 Q What was the nature of your concern that 7 led you to make this recommendation if you didn't 8 know that this thing had occurred? 9 A It is a typical concern and fear of anyone 10 managing complex litigation, working on complex 11 litigation, that in a large, repetitive, complex set 12 of litigation that inadequate control of objections 13 or documents will lead to unnecessary and 14 inadvertent disclosures. That's what that's all 15 about. 16 Q Now, I notice here that in terms of an 17 industry response of comprehensive strategy that 18 preventing disclosure of these documents was your 19 first suggestion. Is that right? 20 A It is the first thing that I addressed. 21 Q Am I to infer from that it's the one you 22 considered the most important? 23 A No. 24 Q How many others did you list in terms of 25 your suggestions? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 176 1 A Depends on whether you talk about the 2 subsets. There are several other pages following. 3 Q Did you have any sensitive documents in 4 mind when you prepared this suggestion? 5 A No specific ones, no. 6 Q Any particular types of documents in mind? 7 A The examples that I thought of immediately 8 were the documents which were revealed in the 9 asbestos litigation that I had seen Fred Baron of 10 Dallas make a presentation on at an ATLA conference 11 in San Diego. 12 Q And which were those? 13 A I don't know what they were but they were a 14 number of Manville documents. 15 Q What kinds of things did they say that made 16 them sensitive? 17 A Basically they revealed information that 18 suggested an earlier knowledge of the hazards of 19 asbestos than what the company was actually saying. 20 Q And you regarded that those were very 21 sensitive because they indicated the company had 22 knowledge prior to the public record? 23 A With respect to those documents, yes. 24 Q And those would be the particularly 25 sensitive documents that you wouldn't want to JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -I-NC. 177 1 unnecessarily disclose? 2 A And another thing is because those 3 documents were well in advance of the literature 4 on the subject as well. 5 Q Now, as I understand it, this is A and 6 it's one -- the way I read this Page 18, is 1 a 7 subset of A? 8 A Yeah, I guess you could say that. 9 Q By subset, I guess I mean that 1, 2, 3 and 10 4 are ways in which to accomplish A? 11 A That's a fair statement. 12 Q Okay. 13 What does suggestion 1 mean? Create 14 benzene data bases for documents. 15 A Basically it means organize your documents, 16 if you can, into some manner of computer control so 17 that you can trace and follow the production of 18 documents in a number of different cases so that you 19 know what's been produced in one case as well as in 20 another case, so that you don't have conflicting 21 responses. 22 Q Is that a technique you employed here at 23 Shell? 24 A There was an attempt made to do that. 25 Q Did you direct that attempt? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 178 1 A Yeah, I -- yes, I did. 2 Q And when you say an attempt, do you imply 3 that there was some problem in accomplishing the 4 goal? 5 A It was never completed. 6 Q Do you know why not? 7 A No, I don't. 8 Q Now, with regard to No. 8, the effort to 9 avoid the disclosure of sensitive documents, did 10 you ever make an effort, yourself, to find out 11 whether Shell had any sensitive documents? 12 A A specific effort to do so? 13 Q Yes. 14 A I suppose that to the extent that we had 15 an incomplete effort on the idea of the data base, 16 yes, I did. 17 Q What did you do? 18 A We made an attempt to survey a portion of 19 files in HS & E to determine what sort of documents 20 existed and that the company had maintained. And 21 we looked at them and tried to organize them into 22 something that we could evaluate for future 23 liability estimates. 24 Q You used the -- the subject of the sentence 25 was "we." Who is the "we" that did this with you? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES TNC. 179 1 A I'm talking about Shell. I was the one in 2 charge of the project. 3 Q Okay. 4 A Paralegals assisted me and we had a 5 consulting company involved who was the -- 6 Q Who was the consultant? 7 .. A -- computer people, American Legal Systems. 8 Q Where are they from? 9 A New York. 10 Q Excuse me. 11 A New York. 12 Q Now, if you could, walk me through the 13 process. You determined at some point to make 14 a survey of whether there was any sensitive 15 documents. What was the first step you did in doing 16 that? 17 A Well, we -- it's kind of hard to say exactly 18 how I got started. The exercise, I believe, sprang 19 out of one of the cases. And the idea was that 20 there was an understanding that we didn't have any 21 real idea what the company's situation was with 22 respect to that. 23 And I made a recommendation that they 24 survey certain selected portion -- representative 25 portion of documents just to make a pass to see what JERRY KELLEY, NELL MCCALLUM & CSR ASSOCIATES MC. 180 1 it looked like and to computerize that through a -2 a retrieval system that would allow us to coordinate 3 with respect to those documents which perhaps had 4 been produced, which had not. 5 And the idea was that we would also plan 6 to put interrogatories and depositions on it, too, 7 although that, to my knowledge, never came to pass. 8 Q Now, how did you conduct this survey? Give 9 me the details of it. 10 A It was done precisely the same way as I it suggested to you previously that we did document 12 productions. We made a call to the appropriate 13 people in Health, Safety & Environment and told them 14 that we would like to -- what we were interested in 15 doing. And they then provided us with the files 16 that they felt were appropriate. And we made a 17 pass through them and looked at them and ultimately 18 microfilmed them and assigned numbers to them. 19 Q Let me -- when you said -- who were the 20 appropriate people in HS & E that you talked to? 21 A I guess Suzanne would be the one. 22 Q How was it that you described to her what 23 you were interested in doing? 24 A Well, we had -- I don't really recall. And 25 the thing -- I don't really recall exactly what I JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 181 1 told her, but we were trying to get a representative 2 sample of benzene-related documents. And the 3 decision, as I recall, that was made was that some -4 I don't think all -- of those central information 5 services files would be pulled and surveyed and 6 microfilmed and this data base would.then be 7 constructed to access them. 8 Q The central info files, the files at HS & E 9 that we call the central files? 10 A Yes. 11 Q Okay. And what did you tell her we were 12 looking for? I remember earlier you talked about 13 hearing Fred Baron and finding these potentially -14 A Oh, no, she was not involved in determining 15 whether or not a document was, quote, sensitive or 16 not. She was told, as I understand it, to isolate 17 benzene, files that related to benzene. 18 Q And then her job was to find files related 19 to benzene and pull them, is that right? 20 A That's my recollection. 21 Q The next verb you used was "surveyed." 22 Does that mean someone looked at them to determine 23 which ones were sensitive? 24 A I don't think we -- we didn't look at 25 them for that purpose. We looked at the files to JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 182 1 determine whether they were files that really dealt 2 with the -- with benzene. A kind of a quality 3 checking sort of thing. There wasn't anybody who 4 made a pass through those, I don't think, ever, 5 to determine whether or not those had sensitive 6 documents in them or not. 7 . Q How could you conduct, as I understand it, 8 this effort to create a data base if creating a data 9 base for documents is important for purposes of -10 for purposes of preventing the inadvertent 11 disclosure of sensitive documents, how do you do 12 that unless someone is going through and determining 13 what a sensitive document is? 14 A I never testified that we did it. 15 Q Never did what? 16 A We simply did not create a functioning, 17 reliable, effective data base. It never was 18 created. 19 Q So what you are saying is -- but I'm just 20 talking systematically. Now you've changed from 21 what you did into your plan. Your plan was to 22 create a data base for purposes of avoiding 23 unnecessary disclosure of sensitive documents. 24 Wouldn't it be true that you would have to go back 25 through and determine which ones were sensitive in JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES`YNC. 183 1 order to make it work? 2 MR. PICKLE: I object to form. I think 3 that's a mischaracterization of the testimony. 4 MR. SIMON: Go ahead. 5 A If you -- to get to that point, ultimately 6 you do. But you have to have a functioning, 7 reliable, accurate data base in order to get to that 8 point. 9 MR. SIMON: 10 Q So you first have to have a data base of 11 what's there and then someone has to go and look 12 at each document and determine whether they're 13 sensitive? 14 A And that wasn't, obviously, the only 15 purpose. 16 Q What kind of data base was there? 17 A A data base that had some documents that 18 were indexed by microfilm number, by author, date, 19 title. To my understanding, it didn't have all of 20 the documents. The documents were never reviewed 21 for, in fact, whether they all really even related 22 to benzene. Basically, a mass of documents was 23 thrown on and no quality control or review was ever 24 really done to them. 25 Q So, as I understand it, you did have an JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES .ANC. 184 1 index that had the author, date and title, but it 2 had never been quality controlled as to whether that 3 list of author, date and title properly reflected 4 what was in the files? 5 A And to my understanding, the times that 6 it was run proved that it indeed did not accurately 7 reflect the information we wanted to get out. 8 Q And what effort was made to make it better? 9 A None. 10 Q None? So, as I understand it, then, this 11 was sort of an aborted effort that you -- the plan 12 would have been to coordinate by getting a data 13 base, you found out the data base wasn't much good, 14 you never got any further? 15 A That's right. 16 Q Why is that? 17 A When you come up with a non -- unreliable 18 system, it's sometimes difficult to obtain further 19 funding. 20 Q You gave me the name of a company in 21 New York, and I can't seem to read my own writing 22 here. What is it? 23 MR. MOORE: American Legal System. 24 MR. SIMON: Thank you. 25 Q What did they do? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 185 1 MR. MOORE: American Legal Service. Excuse 2 me. 3 A For lack of a better term, they were the 4 computer people. They were the people that assisted 5 in creating the design of the data base with me and 6 actually collected the tapes, sent the tapes back 7 and got the thing up and running. I'm not a 8 technician, so I can't tell you any more than that. 9 MR. SIMON: 10 Q Well, let me see -- and I'm a little lost. it It was -- prior to making this effort, there was 12 the ability to go down and look at an index on 13 microfilm? Is that what it was? And then you 14 did something else? 15 A Prior to this? 16 Q Or there was nothing prior to this? 17 A I have no idea whether there was an index 18 prior to this or not. 19 Q So the index that you are talking about 20 that may or may not have been perfect was created 21 by this American Legal Service? 22 A That's correct, in conjunction with -- in a 23 design meeting with me. 24 Q What? 25 A In a meeting with me to figure out exactly JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 186 1 what I thought would be helpful. 2 Q And they put together this index, and then 3 you didn't think it was good enough to recommend the 4 funding for the rest of the project? 5 A It proved sufficiently unreliable that I 6 would never rely on it completely in anything. 7 Q Does that index still-exist? 8 A To my knowledge, yes. 9 Q I mean, is it available if we went down to 10 the proper agency to get it? it A It wouldn't be in HSE. The microfilm 12 documents are available. The microfilm is 13 available, presumably. I haven't seen it in over 14 two years, but presumably it is. Accessing the 15 data base would take you a lot of time and effort in 16 learning a computer language and getting appropriate 17 security passwords and things like that. 18 Q But that's -- I mean, it's here, they didn't 19 take it back? I mean, you just didn't finish the 20 project; whatever you paid for is here? 21 A That's right. 22 Q So the computer capability to access 23 documents exists? It's not in HS & E? 24 A Well, all the original documents are still 25 in HS & E, where they were to begin with. All JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 187 1 that's -- the data base is not useful to retrieve 2 those particular original documents, because those 3 original documents are not microfilm numbered. So 4 the data base is only useful to retrieve microfilm5 6 accurately. 7 Q Did you ever make an effort to -- outside 8 of this -- to look at any Shell files to determine 9 whether there were any sensitive documents that had 10 11 A Only on a case-by-case basis. 12 Q I'm not sure I understand your answer. 13 A Well, as appropriate -- as requests for 14 production, for example, would come in, we would 15 meet with appropriate people and determine what may 16 or may not be responsive, the burden in producing 17 it, and then appropriately we may go through and 18 actually look at some documents. And occasionally 19 documents did come to my attention during the 20 ordinary course of discovery and document 21 production. 22 Q What documents came to your attention, 23 other than the Soley document, that you classified 24 as sensitive documents under your definition? 25 A The only documents -- JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -INC. 188 1 MR.-PICKLE: I object to form. 2 A The only ones of any significance that I 3 can recall were those that would have been in the 4 documents that were in Mr. Tyler's office. 5 MR. SIMON: 6 Q When did this effort to create the data 7 base with American Legal Services take place? 8 A 1985 to 186, something like that. 9 Q Now, that was around about the time you 10 told me that you discovered the Soley document, is 11 that right? 12 A That's right. 13 Q Did you find it in conjunction with your 14 work with American Legal Services to put together 15 the data base? 16 A I don't recall. I could have, but I don't 17 recall. 18 Q Would the Soley document, in your mind, be 19 the kind of sensitive document you referred to in 20 No. 8? 21 A Not necessarily. 22 Q Why not? 23 A It reflects nothing that was not already 24 established in the literature. 25 Q What does it reflect, in your mind? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES 'INC. 189 1 A I'd like to see the document, if I'm going 2 to be asked questions about it. 3 Q Okay. 4 You studied the literature concerning 5 benzene leukemia? 6 A I did do some study of it, yes. Q Okay. 8 Your second recommendation under A is: 9 Centralize responsibility for first-chair defense. 10 What does that recommendation mean? 11 A The idea is that you -- I guess centralizing 12 means put it in a single unit or a single individual 13 or a single department, however you want to do it. 14 The idea is that you don't have it spread out all 15 over the world, you have a centralized 16 responsibility with a discrete group of people, 17 so that you know exactly what they're doing. 18 Q Would this recommendation describe the way 19 it was conducted here at Shell at that time? 20 A No. 21 Q Closely monitor outside counsel and joint 22 defend cases. What does that mean? 23 A It means the managing attorney, who is 24 looking over the shoulder of outside counsel and 25 managing a case, should have a good idea of what -- JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES YNC. 190 1 of how that attorney is handling the responses to 2 discovery and other matters. 3 Q No. 4. Disclose sensitive benzene 4 documents only on court order. What do you 5 mean there? 6 A Don't surrender or disclose or reveal 7 sensitive documents to which you have an objection 8 until all of the objections have been overruled. 9 Q Do you know of any document that you have 10 seen, that you can identify, that you found that 11 would fit your definition of sensitive? 12 A My definition of sensitive? 13 Q The one used here, sensitive meaning that 14 it would be -- you know, you described it earlier 15 in terms of the presentation Mr. Baron made. 16 A No. 17 Q No? But the ones that you did find that 18 conceivably were in that category are in the 46 19 boxes in Tyler's office? 20 MR. PICKLE: Object to the form. Asked and 21 answered. 22 A Things that I was concerned about would 23 have been, yeah. 24 MR. SIMON: 25 Q Are you the one that gathered those JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 191 1 documents that were sent to Tyler's office? 2 A Over my years at Shell, I 'gathered the 3 majority of them, yes. 4 Q Who gathered the ones that you didn't? 5 A With respect to benzene, no one. 6 MR. SIMON:,, Let's stretch a minute. 7 [Recess] 8 MR. SIMON: 9 Q On Page 21 -- 10 MR. MOORE: Page 21 of what? 11 MR. SIMON: Same document. I'm sorry. I 12 haven't c hanged yet. 13 A I guess this is what he's referring to. 14 MR. SIMON: 15 Q I'm referring on the bottom of this. 16 document there's a computer-generated number in 17 the last, there's a dash and then there's a digit. 18 That's th e pagination I'm referring to. 19 A Okay. 20 Q No. 5 is: The trial may present a high 21 risk if f ew defendants are involved. What do you 22 mean by t hat? 23 A That means that if you have less people in 24 the case to spread the resulting judgment, you have 25 a risk of paying more money. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES'INC. 192 I 1 Q Now, as I understand, let me just get the 2 number right, is this still 6? Okay. I.just can't 3 do numbers. No. 6. As I understand it, it's your 4 testimony that this is purely your own work and your 5 own ideas. 6 A It is. 7 MR. MOORE: Asked and answered. 8 MR. SIMON: 9 Q And going back now to Page 18 -10 A Okay. 11 Q You recommended to this group that they -- 12 "Industry Response: A Comprehensive Strategy," this 3 was your recommendation what each company should do, 14 isn't it? 15 A It was my recommendation as to what a good 16 idea was. I didn't recommend that any particular 17 company there do anything. 18 Q You just thought it was a good idea? 19 A I said: These are some ideas I have that 20 might increase your efficiency. 21 Q Right. Now, as you sit here today, do you 22 still think they're a good idea in terms of the way 23 to defend? 24 A Sure. 25 Q All of them? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 1 A Every one of them. 193 2 Q Did you make -- who was there from Shell? 3 Mr. Long? 4 A Uh-huh. Yes. 5 Q Was he your supervisor? 6 A No. 7 Q What was his -8 A He was just another staff lawyer like I 9 was. 10 Q Did you ever make any of these 11 recommendations to your supervisors at Shell? 12 MR. MOORE: I object for the reasons 13 previously stated. 14 MR. SIMON: You're not going to let him 15 answer? 16 MR. MOORE: No. We've been through the 17 exact same question and objection before. 18 MR. SIMON: 19 Q I believe your testimony was that Shell did 20 not centralize the responsibility for first-chair 21 defense and in-house management of benzene 22 litigation. Is that right? 23 MR. MOORE: I object. 24 MR. SIMON: He hasn't answered that one. 25 A If I did, we don't need to go any further. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 194 1 MR. MOORE: Exactly. But if he did, he 2 shouldn't have been allowed to answer it, because 3 that deals with the matters involving the defense 4 strategy of Shell that Richard does not need to 5 respond with information to you in this case. 6 MR. SIMON: Let me ask you another 7 question. 8 Q How did you feel about your own employers 9 not following some of these suggestions? 10 MR. MOORE: I object. it MR. SIMON: Go ahead. 12 MR. MOORE: It assumes that they didn't 13 follow the suggestions and it deals with the defense 14 strategies utilized by Shell. 15 MR. SIMON: But he already testified that 16 they didn't. 17 MR. MOORE: It doesn't make any difference 18 to me what he already testified to. I object to the 19 question. 20 MR. SIMON: How he felt about it? That's 21 not a company strategy, how he felt about it. 22 That's a man's emotional -23 MR. MOORE: Well, you are getting into 24 the areas of whether they did or did not follow 25 his recommendations and, if they didn't, why they JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES YNC. 195 1 didn't. 2 MR. SIMON: No, I didn't ask why they 3 didn't. 4 MR. MOORE: Well 5 MR. SIMON: I can't agree. 6 MR. MOORE: I'm just suggesting, Mr. Simon, 7 that you are not allowed to go into this area. 8 And the witness is requested not to give 9 any information about any decisions made by Shell's 10 lawyers as to how the company was going to be 11 defending these lawsuits. 12 MR. SIMON: But, now, I asked the question 13 about this man's subjective state of mind, not about 14 the defense of any case, but about the fact that he 15 in his own time produced recommendations and 16 testified that his company was not pursuing 17 these. And I want to know how he felt about 18 it. Your objection has nothing to do with his 19 perception -- feelings about it. 20 MR. PICKLE: The objection has already been 21 made. Let's move on. 22 MR. SIMON: 23 Q Are you going to follow their instruction 24 and not answer that? 25 A As a lawyer sitting here with a client JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 196 1 telling me it's asserting the privilege, I have 2 no choice. 3 Q I have to tell you again you have a big 4 choice. I've told you many, many times that the 5 law -- and you should have studied it before you 6 came -- that these privileges do not pertain when 7 there's an allegation of,misconduct. And I wish 8 you had studied the law before you came. You are 9 causing yourself a lot of unnecessary aggravation. 10 A You may continue. 11 Q Thank you. 12 Now, as I understand it, there were some 46 13 to 48 boxes which I'm going to get to see that were 14 in Two Shell Plaza, before that were in Mr. Tyler's 15 office on the 49th floor. How did those come 16 about? How did the boxes get assembled and how 17 did they get there? 18 A Okay. I suppose the beginning is the 19 best place to start. I can't really isolate a 20 beginning. But from time to time as I handled not 21 only cases involving benzene but any number of other 22 types of cases for Shell, I came across and 23 recognized things that I thought were interesting 24 and things that for no reason, really, other than 25 perhaps future reference, perhaps merely being a JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 197 1 pack rat kept. 2 There was a room on the 47th floor, when my 3 office was there, that was an empty room, and it was 4 an empty paralegal office on the interior where a 5 number of the trial lawyers at that time dumped 6 things, basically, kept things, just like I did. 7 And that room ultimately had some shelves installed 8 in it and things were put on the shelves, and 9 finally a box here, somebody would keep an entire 10 closed file, occasionally I kept an entirely closed 11 file, occasionally I kept portions of files that I 12 thought were interesting, forms, things like that. 13 And the room rapidly filled up to the point that you 14 almost couldn't get into it because there were 15 chairs and other things stacked on top of it in 16 there. That room was -- occasionally I would go 17 in and pull something out of it that I needed as a 18 reference, an article, for example, something like 19 that. And the rest of the time it was shut and 20 lights out. 21 When the litigation section reorganized in 22 I think it was 1987 or 188, I can't remember when, I 23 was told I was moving to the 48th floor. I was also 24 told that that office was going to be reassigned for 25 someone to use, the storeroom. And I was also told JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES'INC. 198 l that there would be no space allowed to me on the 2 48th floor, or any other lawyer, to put all the 3 things that were in that storeroom. 4 It obviously concerned me, because I, 5 probably like you or like any other trial lawyer 6 sitting here, you like to have the stuff that you've 7 worked on and accumulated over the years near you as 8 a reference. I was given a choice of a room in Two 9 Shell Plaza or a room that was many, many, many 10 floors distant from me to dump all that stuff. 11 Mr. Tyler and I visited and we were talking 12 about the problem over lunch and he says: Well, 13 I've got empty office space, I've got an empty 14 office. Why don't you just move it up there? 15 And that's what we did. And that's where 16 it remained until such time as it was sent back 17 here. 18 Q How is it that it came to pass that you 19 found the Soley document? Do you remember how you 20 came upon that? 21 A I think I've already told you that. I 22 don't remember the specific circumstances of how it 23 came up. Ultimately it was brought to my attention 24 and it was put into a binder in that room as 25 something I thought was interesting and would JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -INC. 199 1 be something I'd keep for future reference. 2 Q Now, what was -- there's the one binder that 3 you probably realize was produced to me. I wasn't 4 given the 46 to 48 boxes, I was given one binder. 5 A Sure. 6 Q Could you tell me how that binder -- what 7 was in that binder, what was the significance of it? 8 A Well, I think that my original intent was 9 to keep things that I recognized would be matters 10 that would attract attention and merit explanation it if they were produced or discussed in a case. And I 12 collected a number of documents. Some of them are I 13 guess now innocuous, some of them are the ones you 14 are concerned about here. 15 MR. SIMON: Read that back. 16 [The record was read as requested] 17 MR. SIMON: 18 Q Let me see if I understand you correctly. 19 If they would have attracted attention or merited 20 explanation if produced in a case, am I to infer 21 from that that as of the time you assembled that one 22 binder that they had not been produced in any cases? 23 A To my knowledge, the matters in those 24 binders -- certainly the Soley document. There's 25 another document in the binder that I recall, which JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -I-NC. 200 1 is the 1948 benzene API toxicology advisory, which 2 to my knowledge had been produced everywhere, in 3 lots of cases. So your question is incorrect. 4 There were materials that had been produced. 5 Q With the exception of the API document, had 6 those other materials been produced in other cases? 7 A I don't know. 8 Q Do you know that any of them had been? 9 A I don't know. 10 Q Do you know that the Soley document had 11 been produced in any case? 12 A I don't know. 13 Q But your concern was that they would 14 attract attention. What do you mean by they would 15 attract attention? 16 A I thought the Soley document was 17 interesting. 18 Q How was it interesting to you? 19 A It was an early document that reflected 20 pretty much the state of benzene knowledge as 21 reflected in another article that was published by 22 either Hunter or Mallory in 1939. I thought that 23 was rather interesting, so I kept it. 24 Q Why would it merit explanation if it came 25 -out, then, if it was just a state -- JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -I-NC. 201 1 A I didn't say that this particular document 2 merited explanation. 3 Q Why would it merit explanation? 4 MR. MOORE: I thought he just said -5 A I just said it didn't. 6 MR. MOORE: I thought he just said he 7 didn't say that it did. 8 MR. SIMON: I know he didn't say that it 9 did or didn't. So,I'm asking him if he is saying 10 either way. it A I don't know. Depends on the questions 12 that were asked. 13 MR. SIMON: 14 Q Do you regard it now as a document that 15 would attract attention? 16 A Believe me, not near the attention that 17 it's attracted here. 18 Q What about meriting explanation? Did you 19 regard its nonproduction as meriting explanation? 20 A Absolutely not. 21 Q Other than this one binder which had 22 original matters that would attract attention or 23 merit explanation if they were produced in a case, 24 what other organization did you have in these? 25 Did you have any other binders that were defined JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES YNC. 202 1 in that way? Forgive me. Any other binders that 2 were defined that way, as things that would attract 3 attention or merit explanation? 4 A I think my testimony was "might." I can't 5 tell you whether any of these things necessarily 6 would attract anybody's attention. They certainly 7 were things that I looked at and said, "Oh, this is 8 interesting," and I kept. 9 Q For that purpose? Because they could or 10 might? it A Well, if I was interested in them, I 12 thought that -- I was interested in them. That's 13 why I kept them. 14 Q Any other binders that were organized in 15 the same way as things that would attract attention 16 or merit explanation? 17 A No. 18 Q Any other documents that you are aware 19 of that would fit into that category of attracting 20 attention or meriting explanation that were not in 21 that binder? 22 A Benzene documents produced by Shell Oil 23 Company, you are talking about? 24 Q Benzene documents in Shell's files. I want 25 to exclude nonbenzene stuff, but I don't want to JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 203 1 limit myself to written by Shell. The Soley 2 document wasn't written by Shell. 3 A Not that I'm aware of right now as I sit 4 here. 5 Q Now, you discussed assembling the binder 6 and its purposes to attract -- to deal with those 7 things, to attract attention or merit explanation. 8 Is that -- is that match -- does that phrase describe 9 what we call -- what you call on Page 18 potentially 10 sensitive? 11 A It could. 12 Q Well, does it, in your mind? 13 A No, not necessarily. 14 Q Those aren't the potentially sensitive 15 documents, in your mind? 16 A I did not view the Soley document as a 17 potentially sensitive document, no. 18 Q And you didn't tell Mr. Tyler that? 19 A I told him it was a document that I thought 20 was interesting and something that I thought he 21 should review. 22 Q Did you tell him it had never been 23 disclosed by Shell? 24 A Probably. 25 Q Did you tell him you were concerned.about JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES T'NC. 204 1 its -2 MR. MOORE: I object. We've already 3 objected to what you -- what he said to Mr. Tyler, 4 and I frankly thought that you understood that and 5 that perhaps you were going to ask him something 6 different. But you are asking him the exact same 7 thing we objected to before. 8 MR. SIMON: 9 Q Did you read Tyler's deposition? 10 A Yes, I did. it Q You did? When did you read that? 12 A Yesterday. 13 Q Who gave it to you? 14 A Mr. Collins. 15 Q How much time did you spend reading.it? 16 A Half hour. 17 Q Did you talk to Mr. Tyler prior to giving 18 that deposition? 19 A No. 20 Q Have you talked to him since? 21 A I exchanged pleasantries with him 22 yesterday. 23 Q Did you talk to him about your being 24 deposed today? 25 A Not specifically. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES TNC. 205 1 Q Did you mention it to him, being deposed 2 today? 3 A I think he knew. 4 Q Did you mention it to him? 5 A No. 6 Q Did he discuss it with you? 7 A No. 8 Q Did you discuss any of the subject matters 9 we're talking about today with him? 10 A No. 11 Q Did you discuss the blue binder with him? 12 A No. When? 13 Q Yesterday. 14 A No. 15 Q Did you discuss the 48 boxes with him 16 yesterday? 17 A No. 18 Q Now, as I understand your testimony, these 19 are just sort of a bunch of things that you've 20 gathered over time. Did they involve any 21 instructions to anybody else to get documents? 22 In other words, at any time did you send somebody 23 to get documents? 24 MR. MOORE: I'm sorry. The question is do 25 they involve what? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 206 1 MR. SIMON: I'm trying to understand the 2 46 boxes. The general tenor of his testimony, as 3 I understand it, was that it was his personal files 4 that just developed over time, sort of an accretion 5 system. It evolved over time. 6 MR. MOORE: You mean 48. 7 MR. SIMON: Did I call it 48? 8 MR. MOORE: That's what the number is. 9 MR. SIMON: Okay. I'll call it 48. 10 MR. MOORE: Then the question is did he do 11 what? 12 MR. SIMON: Did he give anybody 13 instructions in terms of gathering documents that 14 led to this collection of the contents of the 48 15 documents -- boxes? 16 MR. COLLINS: The whole collection? 17 MR. MOORE: Did he leave instructions for 18 any particular person to take any given document and 19 put it in those files? 20 MR. SIMON: Right. 21 A I don't know. With respect to particular 22 things, I may have asked my paralegal to put this 23 in a binder or something like that at times, but I 24 don't -- there weren't any instructions to go out and 25 gather up things and put them in binders. That just JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 207 1 wasn't done. 2 MR. SIMON: 3 Q Were the documents relating to benzene 4 gathered in the process of doing general research 5 or in the process of preparing a defense for a 6 particular case? 7 A Everything was done in the context of 8 preparing defense for a particular case. 9 Q So that would -- would it be improper to 10 infer, then, that the Soley document came into those it boxes because you found it in the preparation for a 12 particular case? 13 A I have no idea, because I told you I don't 14 really recall the circumstances of how it came up. 15 But I presume -- I'm not going to presume. I've 16 answered that. 17 Q Well, in terms of making inquiries as to 18 what documents exist, I've heard of two different 19 kinds: 20 One is -- and I want to see if I've got the 21 total universe. One is your inquiries into the 22 cases which led to things in the 48 boxes. 23 And, two, this effort with American Legal 24 Services when there was at least some effort to 25 maybe gather documents, maybe to list them. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 208. 1 Any other efforts to gather documents that 2 you made on benzene? 3 A None I made. 4 Q Did you actually gather documents in this 5 American Legal Services search? Or was it just 6 labeling documents? 7 A Well, I mean, gathering is probably the 8 most apt word. They were collected and microfilmed 9 and not looked at.10 Q If you had to give me your best informed 11 opinion now, would it be your best informed opinion 12 that you came upon the Soley document in preparing 13 for other cases or in the American Legal Services -14 MR. MOORE: Excuse me. I object. 15 Mr. Simon, I haven't counted, but my estimate is 16 that's the ninth time that you have asked that 17 question. And it really doesn't serve any useful 18 purpose to continue to go over it. 19 A I don't remember how the Soley document 20 came into my possession. 21 MR. SIMON: 22 Q What did you tell Mr. Tyler about the 23 contents of those boxes? 24 MR. MOORE: I object. Oh, about the 25 contents of the boxes? Excuse me. I do not JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 209 1 ob j act . 2 A Nothing. Other than that the boxes were 3 coming from the storeroom and were to -- and he -- 4 and he offered to put them into his office. 5 MR. SIMON: 6 Q So die was just a storehouse for your boxes? 7 A That is it. 8 Q Originally, he was a storehouse. Did 9 anything else ever occur with the boxes? In other 10 words, up to the point you are describing now, he it was just a storehouse, you never told him about 12 them, he didn't know about them, presumably he 13 didn't look at them. Did it ever come to some point 14 when you said, "Hey, this is here," and he could 15 begin to look at it, work with it, describe it? 16 A There was nothing there that he should have 17 had a specific reason to look at at any time. 18 Q So basically, in terms of Tyler's mind, 19 your understanding was that, "Hey, those are 48 20 boxes I got from Faulk and I don't know what's in 21 them and I'm not all that interested"? 22 A Well, he knew generally what they were, 23 because they were put up on shelves and not kept 24 in boxes. 25 Q But did you ever walk through any of the JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES-INC. 210 1 boxes with him? 2 A No. 3 Q Did you ever show him what was in the blue 4 binder? 5 A Anything that I would have shown him with 6 respect to that binder would have been a privileged 7 attorney-client communication, if in fact I did so. 8 Q Did you ever tell him that it was you 9 wanted to avoid disclosure of the Soley document? 10 A It would have been a privileged 11 attorney-client communication. 12 Q Are you refusing to answer that? 13 MR. COLLINS: We need to assert the 14 privilege. 15 A Someone has to assert the privilege before 16 I refuse to answer. 17 MR. MOORE: Yes. Yes, we assert the 18 privilege. 19 MR. SIMON: Read back the question. 20 MR. MOORE: We assert a privilege relating 21 to any communication between the witness and 22 Mr. Tyler as it results to -- as it pertains 23 to litigation or anything in anticipation of 24 litigation. 25 MR. SIMON: Read it back. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 211 1 [The record was read as requested]. 2 MR. MOORE: I object. 3 A On instruction of counsel, I refuse to 4 answer. 5 MR. SIMON: Let's mark that part of the 6 transcript, please. 7 [THE TRANSCRIPT WAS MARKED] 8 MR. SIMON: 9 Q Any purpose in the moving of the documents 10 from where you had them to Tyler's office have to do 11 with concerns about security? 12 A That may have been -- John voiced that 13 concern at one point. 14 Q What concern was that? 15 A He just felt like they would be secure up 16 in his offices, and he assured me that they would be 17 secure. 18 Q Well, why would he have concern -- explain 19 to me why he would have concerns about the security 20 of documents if he didn't even know what they were? 21 A Anytime you take possession of a client's 22 files, you want assurances that the matters are 23 going to be secure. That's the sum of it. 24 Q I wasn't clear in my question, sir. 25 What I wanted to ask you was: Did Tyler express any JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 212 1 concern with the security of the documents while 2 they were in one of your offices or in this room you 3 had? 4 A He did. 5 Q What concern was that? 6 A He was concerned that the documents or the 7 materials in the room such as they were might be 8 accessible to -- to people and not be secure. 9 Q What did he know about the documents at 10 that point, before they were given to him? it A Anything he knew about the documents 12 at that time would have been a privileged 13 attorney-client communication. 14 MR. SIMON: Let's mark that part. 15 [THE TRANSCRIPT WAS MARKED] 16 [Recess] 17 MR. SIMON: 18 Q Now, Mr. Tyler's office, where your files 19 were taken, are there any other Shell employees that 20 have access to that? 21 A I presume any Shell employee would have had 22 access to it. I was the only Shell employee that 23 had a key to Mr. Tyler's office. 24 Q Well, when you say they would have had 25 access, these were your personal files, weren't JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 213 1 they? 2 A Well, they weren't all mine. I mean, they 3 were files that had been put together by other Shell 4 attorneys, too. Not relating to benzene, but they 5 weren't all mine. 6 Q Were there other files about benzene from 7 other attorneys? Or were all the benzene files 8 yours? 9 A I believe-all the benzene files were things 10 that I had collected. 11 Q Who were the other attorneys that had 12 access to Tyler's office that you know of? 13 MR. COLLINS: Do you mean other than the 14 normal course of business of Tyler's office? 15 MR. SIMON: Do you mean other than Tyler's 16 attorneys? 17 MR. COLLINS: No. I want to clarify 18 your question. In other words, are you asking did 19 someone have special access or if an attorney went 20 up there because he wanted to see John Tyler about 21 the possibility of representing a case, he would 22 have had access as any individual might have had 23 access to the office. 24 MR. SIMON: 25 Q I mean, who had access to this room with JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES -INC. 214 1 the materials in it? 2 A I never heard that there were any criteria 3 to deny access to any Shell attorney. 4 Q Well, how did you get in there? You had 5 your own key. 6 A Well, I had a key, yeah. And, of course, 7 whoever went into the office -- John's door -- see, 8 John's firm was on 50 and 49. And the main entrance 9 was on 50. And there was an entrance to the 10 litigation group on 49 that was locked. You had 11 to go in through that door. And I had a key to go 12 in through that door, and the same key opened the 13 room. 14 Q If an attorney other than you who didn't 15 have a key wanted access because he wanted to. see 16 your benzene books, what would he do, go to the 17 50th floor and down? 18 A He couldn't get in the 49th floor, so he 19 would have to go to the 50th. He might call John. 20 I don't know. Because I don't know if anybody ever 21 did. 22 Q Did you make it known to people that your 23 benzene books were there and were available to 24 people? 25 A Well, to who? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 215 1 Q To Shell, other Shell employees. 2 MR. MOORE: Let me ask you -- I have no 3 idea. We would like a short recess. 4 [Recess] 5 THE WITNESS: I think we had a question 6 outstanding. Would you read it back? 7 [The record was read as requested] 8 A No. 9 MR. SIMON: 10 Q When you were with the Shell legal 11 department, to whom did you report? 12 A Throughout my career? Several people. 13 Q Go ahead. 14 A Initially my boss -15 Q When did you start? Just so I can get 16 that. 17 A 1982. My general attorney, who was any 18 immediate supervisor, was James Evans. 19 My next general attorney was -- I think it 20 was Dave Kinnan. 21 My next general attorney was Steve Long. 22 He was followed by Dan Farr. 23 And then followed by Mr. Saum. 24 Q And during the time you were doing benzene 25 litigation, who were your supervisors? All of JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 216 1 those? 2 A All of those people, probably, to some 3 extent or another. It was seldom that I did not 4 have some benzene litigation going in my career. 5 Q Give me a sense -- I'm just trying to get 6 a sense of the.chain of command between you and the 7 general counsel. How many steps when you were under 8 Evans? 9 A It varied. At least three. 10 Q And when you were under Mr. Saum? 11 A Two, I believe. 12 Q The entire time you were at Shell, how many 13 times did you meet with the general counsel? 14 A Numerous occasions. I can't tell you. 15 Q Hundreds, tens -16 A Oh, no, not hundreds. But a significant 17 number of times. 18 Q More than 20? 19 A Certainly. 20 Q More than 20 times a year? 21 A No. 22 Q More than 10 times a year? 23 A I -- I've given you about as specific as I 24 can get. 25 Q You were at Shell for what, almost eight JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 217 1 years? Did you meet with the general counsel more 2 than 50 times? 3 A I would doubt it. 4 Q More than 25? 5 MR. MOORE: He has done the best he can 6 do. 7 MR. SIMON: Well, let me ask more than 25. 8 I'll stop. 9 A 25 sounds-about right. 10 MR. SIMON: Okay. 11 Q Do you want to give me the dates when 12 Mr. Saum was your supervisor? 13 A I would say it was from early 1989 until I 14 left in 1990. 15 Q What about Farr? 16 A From late 1988 until early 1989. 17 Q Long? 18 A 1986 to 1988. 19 Q The next guy's name I can't pronounce, Dave 20 Kinnan? 21 A Kinnan. 22 Q I'm sorry. 23 A About six months in 1986. 24 Q Evans? 25 A 1985. I'm sorry. From 1982 until such JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 218 1 time as Kinnan took over. 2 Q Who was your supervisor at the time that 3 you had that project with the American Legal 4 Services? 5 A Part of the time it was Evans and part of 6 the time -- it may have been finished up under Long, 7 I can't remember. 8 Q Did Long know about the existence of the 9 Soley document? 10 A If he did, it would have been the result of 11 a privileged attorney-client communication. 12 Q Farr? 13 A Same answer. 14 Q Kinnan? 15 A Same answer. 16 Q Evans? 17 A Same answer. 18 Q Saum? 19 A Same answer. 20 Q So is it your testimony that if any of them 21 knew about it it's because you told them about it in 22 the process of -23 A So far as I know. If they knew about it 24 from another source, I would have no idea. 25 Q And you are not willing to testify as to JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 219 1 which of them you told about it? 2 A I think I'm under instructions from counsel 3 for Shell to obey the privilege with respect to 4 that, and I'm constrained to do so. 5 MR. SIMON: Okay. Let's mark that part of 6 the transcript. 7 [THE TRANSCRIPT WAS MARKED] 8 MR. SIMON: And then let's mark this as the 9 last exhibit. 10 [Exhibit 7 marked] 11 MR. SIMON: 12 Q Do you want to identify this, please? 13 MR. MOORE: Is that the Soley document? 14 MR. COLLINS: I'm curious. 15 A It's not complete. 16 MR. HOBSON: There's a cover sheet to it. 17 MR. SIMON: 18 Q Now is this a complete copy? 19 A I don't know. 20 Q Would you look at it, please? I'm not 21 trying to mislead you and give you incomplete ones. 22 MR. MOORE: Where did this copy come from? 23 MR. HOBSON: Shell. 24 MR. MOORE: Did we produce it to you? 25 MR.. HOBSON: Yes. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 220 1 MR. SIMON: He wants to see if it's 2 complete. 3 THE WITNESS: Do you want to see it? 4 MR. SAUM: I was just curious. 5 MR. SIMON: 6 Q Is that one complete, Mr. Faulk? 7 A To the best of my recollection., 8 [Exhibit 7 remarked] 9 [Discussion off the record] 10 MR. SIMON: Let the record reflect that due 11 to my error I marked another document as No. 7. I'm 12 withdrawing it and giving him another No. 7 because 13 he testified the one I gave him was incomplete and 14 he has now testified this, I believe, is complete to 15 the best of his knowledge. 16 Q Is that correct? 17 A Well, Mr. Hobson raised something a minute 18 ago that somewhat concerns me, in that he says there 19 are different versions of this. This appears to be 20 the document that I'm familiar with, but without 21 comparing it to all the other versions, I'm not sure 22 I could tell you which is which. But it does appear 23 to be a document I'm familiar with. 24 Q Are you familiar with any different 25 version? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 221 1 A No. 2 Q All right. And this is -3 A And I don't know if that's the version I'm 4 familiar with either, if there are other versions 5 elsewhere. 6 MR. HOBSON: This Exhibit No. 7 to this 7 deposition was also marked as Exhibit No. 1 to John 8 Tyler's deposition. He identified this as the copy 9 he remembered seeing of the Soley document. This is 10 the copy that was given to me by Shell's attorneys 11 as being a duplicate of all the documents in the 12 blue binder, benzene binder. 13 THE WITNESS: Based on that representation, 14 if that's correct, I have no reason to believe that 15 this is not the document I'm familiar with. 16 MR. SAUM: Off the record. 17 [Discussion off the record] 18 MR. SIMON: 19 Q Just for purposes of clarification, 20 we've been referring most of the day to the Soley 21 document. Is this the one you've been referring 22 to? 23 A It appears to be, yes. 24 Q Okay. And this is the same document that 25 was in the blue binder that you had in Mr. Tyler's JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 222 1 of f ice? 2 A Yeah. 3 Q And you don't remember when you first saw 4 it, except it was sometime in 185 or 186? 5 A That's my best recollection. 6 Q Nor do you remember the circumstances in 7 which you saw it? 8 A No. 9 Q You are not willing to testify as to who 10 else in the Shell legal department you gave it to? it A On instructions of Shell's counsel, I'm 12 constrained to observe the privilege that they've 13 asserted. 14 Q I'll hand it to you. 15 A Okay. 16 Q I'm going to ask you to read under Chronic 17 Poisoning. 18 A Okay. 19 Q This is a accompanied by the symptoms 20 associated with variable blood changes that may 21 occur. These changes may be listed as follows: 22 Leukemia, leukemoid blood pictures. Is it your 23 understanding that in 1943 that this is what was 24 commonly believed the possible harms from leukemia 25 [sic] were? JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 223 1 MR. PICKLE: I object to form. I think the 2 article speaks for itself. It's exactly what it 3 says in the prolog. 4 MR. SIMON: I didn't ask -- very 5 interesting, but a completely irrelevant comment. 6 I didn't ask him what the article said, I asked him 7 his view of what the common beliefs were at that 8 time. 9 A I have no opinion one way or the other as 10 to what the common beliefs were at that time. 11 MR. SIMON: 12 Q Have you made a study about the literature 13 and what it said about the risks of benzene at 14 various points in time? 15 A I have read some literature. I'm not a 16 toxicologist or epidemiologist or industrial 17 hygienist. 18 Q Did you make any study on your own on what 19 the state-of-the-art was in terms of what various 20 reports -- 21 MR. MOORE: May I ask where you are leading 22 with this line of inquiry? Are you trying to 23 determine what knowledge he had about. the effects 24 of benzene? 25 MR. SIMON: No. Ism using that as a JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES `INC. 224 1 predicate. 2 MR. MOORE: Well, what's the point of it? 3 MR. SIMON: As a predicate, we're trying to 4 get at the significance of this document that he -5 MR. MOORE: The document, as has already 6 been stated, is self-explanatory. You've referred 7 to it a number of times. This witness certainly 8 doesn't -- he didn't write it, he's only seen it. 9 MR. SIMON: 10 Q Have you ever seen a document from Shell 11 in the 1940s that says benzene may cause leukemia? 12 MR. MOORE: Excuse me. What has that got 13 to do with the purposes for which this deposition is 14 being taken? 15 MR. SIMON: I don't feel like I need to 16 testify. 17 Q Have you ever seen such a document? 18 MR. MOORE: No. If you explain the purpose 19 and tell me why this is legitimate, we may not have 20 any issue about it. 21 MR. SIMON: Well, the purpose is that 22 this man put these in a special binder due to some 23 significance he saw. I'm trying to get at the 24 significance. And I believe these go to the 25 significance of the document. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 225 1 MR. MOORE: As to whether or not there 2 was any other article in 148 about the hazards of 3 benzene? 4 MR. SIMON: Not any other articles. What 5 Shell was saying in 1948. 6 MR. HOBSON: 143. 7 MR. SIMON: 143. The significance of 8 this article, as is well known in the history 9 of this case, is that this document is totally 10 inconsistent with all the other documents Shell 11 ever produced at that time. 12 MR. MOORE: Well, I guess that's a matter 13 of interpretation of the documents. 14 MR. SIMON: 15 Q Have you ever seen a Shell document 16 indicated from the 1940s that was released to the 17 public that indicated there was leukemia risk from 18 exposure to benzene? 19 A Not that I recall. 20 Q Have you seen any Shell document from the 21 1950s that that was released to the public that 22 indicated there was leukemia risk? 23 MR. MOORE: You've asked him that, I 24 believe. 25 A Yes. JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES 'INC. 226 1 MR. SIMON: 2 Q What documents? 3 A Do you want to go into those? 4 MR. MOORE: That's why I'm asking you the 5 purpose of this, Mr. Simon. Because you are now, as 6 I interpret what you are asking this witness, you 7 are asking him to identify what information -- I 8 guess you are driving at: What did Shell know about 9 benzene? You are trying to get at it through this 10 witness, which in essence is reopening discovery on 11 matters totally different than the purpose for which 12 discovery was reopened. 13 MR. SIMON: No, I believe we have a lot 14 of documents from Shell. I'm really not trying to 15 reopen discovery. What I'm trying to do is get at 16 what the purpose for putting this in this notebook 17 was. 18 MR. MOORE: Why don't you ask him that 19 question? 20 MR. COLLINS: That was asked and answered. 21 MR. SIMON: One person at a time. 22 MR. MOORE: If that's what you're trying to 23 get at, why don't you ask him that question? 24 MR. SIMON: 25 Q What was the purpose of putting this in the JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 227 1 blue binder? 2 A It was an old document and I thought it was 3 interesting. 4 Q What was interesting about it? 5 A Talked about -- it was.a report that Shell 6 had gotten some 40 or so years before I came with 7 the company. It's not often you find things like 8 that. 9 Q What makes that interesting? 10 A Just an old document. It talked about a 11 subject that I was working with. I thought that was 12 interesting. 13 Q How is it different? How is this document 14 different from the old documents that you heard 15 Mr. Baron talk about in his talk about asbestos? 16 A My understanding is that the scientific 17 literature reflecting asbestos risks did not even 18 mention the risks associated with asbestos that 19 Johns Manville knew all about. 20 Q Do I infer from that you regard this 21 document as different because the scientific 22 literature did mention the risk of benzene? 23 A It did in fact, and the article so says. 24 MR. SIMON: Lets just take one more break. 25 [Recess] JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC. 228 1 [The deposition was adjourned without 2 further discussion on the record] 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JERRY KELLEY, CSR NELL MCCALLUM & ASSOCIATES INC.