Document wgKQK8aqNLej1BE6eZ11Yay73

STATE OF WISCONSIN CIRCUIT COURT STROH DIE CASTING CO., INC., Plaintiff, vs. MONSANTO COMPANY, Defendant. MILWAUKEE COUNTY Case No. 639-887 ^ MEMORANDUM IN OPPOSITION TO STROH'S DEMAND FOR MONSANTO'S PCB LITIGATION DATA BASE In pressing its demand for complete access to the confidential document classifications and summaries prepared by Monsanto's lawyers for the defense of PCB litigation, Stroh disregards settled case law holding such materials to be opinion work product entitled to the highest degree of protection. Nor does Stroh offer any reasoned, much less compelling, basis on the facts of this case to warrant the extreme intrusion being sought into the work product of Monsanto's lawyers. Stroh's asserted justification for this motion amounts to nothing more than a vague expression of frustration over its failure, after extensive document discovery but only two days of depositions, to find any evidence to support its meritless claims. Stroh is apparently convinced that it could find evidence for its theories if only it had the benefit of the document selection, summarization, and classification work Monsanto lawyers have done in anticipation of HARTOLDMON0029405 defending product liability claims such as this one. But there is no reason why Stroh's counsel cannot successfully devote their own energies to identifying the subj ect matters relevant to their case, submitting proper discovery requests, and organizing the fruits of those labors. As the Wisconsin Supreme Court has emphasized: "Without a showing of good cause, the courts should shield from discovery all materials that would simply reward the indolence of the lawyer seeking discovery." State ex. rel. Dudek v. Circuit Court. 34 Wis.2d 559, 150 N.W.2d 387, 404 (1967). Under these circumstances, Stroh cannot demonstrate any need to overcome the work product privilege. Because the Monsanto document classification system was created through confidential communications between an in-house and outside lawyer, that were "made for the purpose of facilita ting the rendition of professional legal services to the client," it is independently and absolutely protected under the lawyerclient privilege codified in Section 905.03 of the Wisconsin Statutes. I. The Opinion Work Product Privilege Protects the Confidentiality of the PCB Data Base Contents and Classification System. A. The PCB data base and classification system were prepared by Monsanto lawyers in anticipation of litigation and reflect their legal opinions and strategies. During 1981 and 1982 Joseph Nassif (formerly an in house Monsanto lawyer supervising the company's PCB litigation) -2- HARTOLDMON0029406 and David Moore (an outside lawyer representing Monsanto in PCB litigation) collected the PCB-related documents they considered to be significant to the defense of the 34 cases then pending against Monsanto, as well as to other litigation claims anticipated to be brought in the future. (See their attached affidavits, Exs. A & B.) After completing this document selection, they created a subject matter classification system to organize the documents and also established instructions to be followed in the summarization and entry of the documents into a computerized data base. Documents not selected for inclusion in the data base remain available for discovery by plaintiffs such as Stroh, just as the original documents that are summarized in the data base. The data base system was thus created by Monsanto lawyers who were relying on their legal judgment and experience to identify significant documents, define important subject areas, conceptualize relationships between those subj ect areas, and finally to establish the methods for summarizing those documents. As further confirmed by the attached affidavit of Thomas Bistline (the in-house Monsanto lawyer presently managing the company's PCB litigation), Monsanto's law department and outside law firms have maintained the PCB data base in strict confidence since its creation by Messrs. Nassif and Moore. (See his attached affidavit, Ex. C.) -3- HARTOLDMON0029407 B. Selection and compilation of documents by lawyers in anticipation of litigation is opinion work product. Following Rule 26(b)(3) of the Federal Rules of Civil Procedure, Section 804.01(2)(c) of the Wisconsin Civi1 Procedure Rules extends protection under the work product rule to all "documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative . . . ." The Monsanto PCB data base and classification system clearly fall within that definition, as courts have repeatedly recognized under similar circumstances. Last year the Texas Supreme Court ruled that document ' indexes prepared by an attorney were privileged: "The indexes, notes, and memoranda referred to are an attorney's work product in every sense of the term." Garcia v. Peeples, 734 S.W.2d 343, 348 (1987). See also Lone Star Dodge, Inc. v. Marshall, 736 S.W.2d 184, 189 (Texas App., 1987) ("With respect to the defense files of . . . [defendant's lawyers], we note that any indexes of documents, notes, or memoranda of the defense attorneys would be privileged as an attorney's work product.") The Third Circuit has similarly construed Rule 26(b)(3) of the Federal Rules of Civi1 Procedure to accord the higher degree of opinion work product protection to counsel's selection and compilation of documents: Opinion work product includes such items as an attorney's legal strategy, his intended lines of proof, his evaluation of the strengths and weaknesses of his case, and the inferences he draws from interviews of -4- HARTOLDMON0029408 witnesses. Such material is accorded an almost absolute protection from discovery because any slight factual content that such items may have is generally outweighed by the adversary system's interest in maintaining the privacy of an attorney's thought processes and in ensuring that each side relies on its own wit in preparing their respective cases. We believe that the selection and compilation of documents by counsel in this case in preparation for pretrial discovery falls within the highly-protected category of opinion work product. Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.), cert. denied, 474 U.S. 903 (1985) (citations omitted). The Sporck opinion relied in part upon the rationale for this rule given in James Julian, Inc, v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982), where an attorney's selection and organization of key documents for use in preparing witnesses for discovery and trial was held to be opinion work product: In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case. Indeed, in a case such as this, involving extensive document discovery, the process of selection and distillation is often more critical than pure legal research. Accord, In Re LTV Securities Litigation, 89 F.R.D. 595, 612 (N.D. Texas 1981) ("To the extent documents are. ' assembled' by or for a party or his representative into a meaningful product, the contents of that assemblage is work product sheltered from disclosure.") Monsanto's use of a computerized data base to operate the classification system and retrieve the documents selected and -5- HARTOLDMON0029409 summarized by its lawyers does not alter this privilege in any way. As the court in In Re IBM Peripherals ruled in denying a motion to compel access to IBM's computerized litigation data base: "The trial support system created by IBM's counsel reflects their mental impressions, theories and thought processes, and the Court is not satisfied that information contained in that system can be segregated from such lawyers' mental impressions and theories." 5 Computer Law Service Reporter 878 (N.D. Cal. 1975) (Lexis printout of the opinion attached hereto as Ex. D). Accord, U.S. v. AT&T. 642 F.2d 1285, 1298 (D.C. Cir. 1980) (finding in related case that MCI's computerized document data base was "prepared by or for MCI's attorneys specifically in anticipation of litigation" sufficient for invocation of work product protection). Stroh's brief ignores all of these authorities, relying instead on two cases that supposedly deny application of the work product privilege to Monsanto's data base system. The first case, Bloss v. Ford Motor Co., 510 N.Y.S.2d 304 (N.Y.3d App.Div. 1987) is distinguishable on its facts. The disputed index in the Bloss case was apparently only a clerical listing of documents responsive to the plaintiff's discovery requests, made after the documents had been assembled for production but before they had been screened for privilege. The court decided on those facts that the work one attorney and "two or three paralegals" did in preparing the index was not "accomplished by using any particular legal skills." 510 N.Y.S.2d at 305. Monsanto's document -6- HARTOLDMON0029410 classification system was created exclusively by Monsanto lawyers, is not limited to the documents produced to Stroh or any other plaintiff, and does contain and reflect the legal opinions and strategies of Monsanto's lawyers. Even if the Bloss case were considered to be reconcilable with the numerous cases previously cited, it has no bearing on the facts of this case. Stroh's only other case is State ex. rel. Youmans v. Owens, 28 Wis.2d 672, 137 N.W.2d 470 (1965), which Stroh relies on to support its argument that any work product privilege associated with the PCB data base system is inapplicable because it was "not prepared for the instant litigation, but rather, for some other lawsuit." The Youmans case involved a city attorney's report prepared for a police chief (who was also the city's mayor) in connection with, an investigation of police misconduct. In concluding the report was not protected by the attorney work product privilege, the court found "the investigative report in the instant case was not gathered for any particular litigation, and obviously not for the instant litigation ..." 137 N.W.2d at 475. The last clause quoted is clearly dicta, because it was unnecessary for the court to decide whether the work product privilege was restricted to the specific litigation for which the materials were prepared in a case in which the report being sought was not prepared for any litigation purpose. At most, the Youmans opinion reflects the extent to which the work product doctrine had "evolved" (id.) as of 1965, when the case was decided. While the Wisconsin Supreme Court has -7- HARTOLDMON0029411 not subsequently addressed this specific issue, "the modern view that the work product privilege extends to documents prepared in anticipation of any litigation, not just the instant litigation," has been accepted in almost every published opinion handed down in the last 15 years. U.S. v. Capitol Service, Inc., 89 F.R.D. 578, 585-86 (E.D. Wis. 1981) (emphasis in original). The U.S. Supreme Court recently observed, in a Freedom of Information Act case hinging on whether the work product privilege was restricted to "related litigation," that every federal appellate opinion and "an overwhelming majority" of the reported federal district court opinions have extended the work product privilege to any litigation, regardless whether it was related to the specific litigation for which the materials were prepared. F.T.C v. Grolier, Inc., 462 U.S. 19, 26, 103 S.Ct. 2209, 2214 (1983). See also, e.g., In Re Murphy. 560 F.2d 326, 333-335 (8th Cir. 1977); U.S, v. Leggett & Platt, Inc.. 542 F.2d 655, 659-660 (6th Cir. 1976), cert. denied. 430 U.S. 945 (1977); Puplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480, 484 (4th Cir. 1973). In addition to relying on outdated dicta, Stroh's argument that the Monsanto data base system "was not prepared for the instant litigation" is true only in the trivial sense that the system was prepared before Stroh's lawsuit was filed. As explained in Mr. Nassif's affidavit, at the time the decision was made in the early 1980s to create the system Monsanto had 34 pending PCB lawsuits. One of those lawsuits, the Outboard Marine -8- HARTOLDMON0029412 case, involved product liability claims nearly identical to those being asserted by Stroh in this case. There can therefore be no question that Monsanto anticipated lawsuits such as the Stroh case at the time the system was created. C. Pisclosure of opinion work product such as the data base system may only be allowed upon proof of a "diligent search" through nonprivileged sources and of "great prejudice." Section 804.01(c) provides for discovery of work product: . . . only upon a showing that the party seeking discovery has substantial need of the materials in preparation of the case and that the party seeking discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means. The rule further cautions that "the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." The Dudek opinion sets forth the high standard required for any motion to compel the disclosure of opinion work product: What showing of unavailability or prejudice the court will require depends upon the particular facts and issues of the case, as well as what is deemed to be [the] basis for classifying the particular item as work product. For example, if a matter or writing is classified work product because it reflects the mental impressions of the investigating attorney, only a showing of non-availability after diligent search and of great prejudice to preparation could justify an order for production. 150 N.W.2d at 405. Cf. Meunier v. Ogurek, 140 Wis.2d 782, 412 N-.W.2d 155, 158 (Wis . App. 1987 ) ( "Dudek is unaffected by [ the ] -9- HARTOLDMON0029413 subsequent enactment of sec. 804.01, Stats."). Stroh's brief misreads the Dudek opinion by focusing only on the lower burden of proof for non-opinion work product. D. Stroh's desire to capitalize on the work of Monsanto's lawyers does not satisfy any standard of need. Without any supporting evidence, Stroh makes the following assertions in its brief to justify its demand for Monsanto's work product: (1) Monsanto has "thousands and thousands of documents related to [PCBs]"; (2) Monsanto was "the only U.S. manufacturer of PCB's"; (3) "Only Monsanto knows what transpired throughout the years"; (4) "Much of this information goes back to the 1930's"; (5) Stroh's "discovery has failed to identify anyone who was with the company when it began manufacturing products containing PCB's"; (6) The three former employees Stroh has deposed "find their memories dimmed by the passage of time"; (7) "There have been depositions where the deponents cannot even identify memos on which they were copied in [sic] because of the passage of time"; and, (8) Stroh is somehow "unable to identify and obtain documents through normal courses of discovery." (Stroh's brief, pp. 8-9). Stroh's first assertion is true but irrelevant. Nothing prevents Stroh from identifying the specific subj ect areas relevant to its case, formulating proper discovery -10- HARTOLDMON0029414 requests, and assimilating the responsive documents produced by Monsanto. Indeed, Stroh has already had the benefits of extensive document discovery. Stroh's second assertion is equally irrelevant. The fact that Monsanto was Stroh's only PCB hydraulic fluid supplier simplifies its discovery needs. The meaning of Stroh's third assertion is unclear, but Stroh is clearly wrong if it is claiming that Monsanto has exclusive knowledge of the development, manufacturing or marketing of PCB products. The governmental testimony and reports made available to Stroh in this litigation, as well as the extensive literature publicly available, refute any such claim. The relevance of Stroh's fourth assertion, concerning information going "back to the 1930's," is also unclear, since product liability claims are evaluated as of the time of product sale and Stroh did not begin its purchases of PCB hydraulic fluids until the 1950s or 1960s. However, nothing prevents Stroh from obtaining discovery of documents in Monsanto's possession going back to the 1930s, and in fact Stroh has already done so. Monsanto has not investigated whether Stroh's fifth assertion is true, but if that issue can be shown to be relevant to this case nothing prevents Stroh from submitting appropriate interrogatories or document requests to obtain what it needs. Regarding the sixth assertion, Stroh does not identify whose "memories [were] dimmed by the passage of time" or what -11- HARTOLDMON0029415 questions have been left unanswered. If relevant questions have been left unanswered, that is either an inevitable consequence of the delay in Stroh's filing of this lawsuit or of Stroh's having only spent two days taking Monsanto depositions. Stroh's seventh assertion is irrelevant for the same reasons. If Stroh is concerned about the authentication of documents produced by Monsanto, it should file appropriate requests to admit or take additional depositions. Stroh's final assertion, that it is "unable to identify and obtain documents through normal courses of discovery," is simply untrue, as the large number of documents already made available to it by Monsanto demonstrates. If Stroh's complaint is that it has been unable to discover documentary support for its contentions in this case, that is either a result of its failure to file appropriate discovery requests or, more probably, of the fact its contentions lack merit. When faced with similar demands, the courts have consistently ruled that the availability of the information being sought through normal discovery methods precludes any intrusion into work product materials. For example, under the closely similar facts presented by the IBM Peripherals case, the court held that: 2. All documents and other materials referenced by the trial support system of IBM's counsel are available through normal discovery to the plaintiffs. The trial support system in no way hides, destroys or deprives the plaintiffs of access to any evidence whatsoever. -12- HARTOLDMON0029416 *** 4. To allow plaintiffs a more detailed description of the trial support system, or to allow plaintiffs to make use thereof, would impinge on the right of IBM's counsel to organize material in the perspective they want to put it in, and to utilize such information in their trial preparation. Plaintiffs have failed to make a sufficient showing of need or urgency to justify such a result. See Ex. D, pp. 1-2. A federal district court ruling on a motion to compel brought by a class action plaintiff in a securities action against LTV Corp. upheld the work product privilege on similar grounds: Appraised frankly, the class is attempting to capitalize on LTV's self-evaluation of its past financial practices rather than to evaluate those practices' itself. Returning to an earlier metaphor, LTV has already furnished the pieces of the jigsaw puzzle and the class must find the alleged solution, if one exists, on its own. Nothing has been withheld which LTV has not already produced, or is willing to produce, in another form. At most, the record suggests the items sought would be helpful to the class, but contain nothing of substance which cannot be or has not been discovered by other means. In Re LTV Securities Litigation, supra, 89 F.R.D. at 613. Perhaps the best analogy to Stroh's demand for Monsanto's data base system was provided by the Sixth Circuit in a dispute over a grand jury subpoena directed at work product materials prepared by the law firm of Williams &. Connolly: In the present posture of the case, it appears to us that the United States has attempted to embark on a general fishing -13- HARTOLDMON0029417 expedition into the files of Williams & Connolly mainly to satisfy itself that nothing has been overlooked. The work product privilege forbids such excursions. In re Grand Jury Subpoena Dated November 8, 1979, 622 F.2d 933, 936 (6th Cir. 1980). II. Monsanto's PCB Document Classification System is Absolutely Protected by the Lawyer-Client Privilege. As detailed in the affidavits of Messrs. Nassif and Moore, Monsanto's PCB document classification system was created through their confidential communications, which were made for the purpose of facilitating the rendition of professional legal services to Monsanto. Any disclosure of the classification system would necessarily reveal the substance of those confidential lawyer-client communications. For those reasons, the classification system is protected by the absolute lawyerclient privilege codified in Section 905.03(2) of the Wisconsin Statutes. CONCLUSION Stroh's motion disregards settled law defining the scope and degree of protection established by the opinion work product privilege and similarly fails to offer any basis to justify on the facts of this case the extraordinary intrusion into Monsanto's work product being sought. Stroh's motion should accordingly be denied. -14- HARTOLDMON0029418 DATED: June 24, 1988 Respectfully submitted, Joseph D. McDevitt James M. Fredericks BORGELT, POWELL, PETERSON & FRAUEN, S.C. 735 North Water Street 15th Floor Milwaukee, Wisconsin 53202 (414) 276-3600 James H. Schink Andrew R. Running KIRKLAND & ELLIS 200 East Randolph Drive 61st Floor Chicago, Illinois 60601 (312 ) 861-2000 -15- HARTOLDMON0029419 STATE OF WISCONSIN CIRCUIT COURT STROH DIE CASTING CO., INC., Plaintiff, vs. MONSANTO COMPANY, Defendant. MILWAUKEE COUNTY Case No. 639-887 AFFIDAVIT OF JOSEPH G. NASSIF JOSEPH G. NASSIF, having first been duly sworn, states the following under oath: 1. I have been licensed to practice law in the State of Missouri since 1974. From 1974 unti1 May 1986 I was employed by the defendant Monsanto as an attorney in their law department. Beginning in November 1981 unti1 my departure, I was a litigation attorney in Monsanto's law department. I am currently representing Monsanto in a number of matters, as a partner in the law firm of Coburn, Croft, & Putzell in St. Louis, Missouri. The statements in this affidavit are based on my personal knowledge, unless otherwise noted. 2. During the period from November 1981 until January 1985, I was responsible for the management of lawsuits related to the manufacture and sale of polychlorinated biphenyls 2 DEFENDANT'S I EXHIBIT HARTOLDMON0029420 ("PCBs") by Monsanto. During that time I developed, with Monsanto's outside counsel, Monsanto's PCB litigation defense strategies in pending and anticipated cases. 3. Shortly after assuming the management of Monsanto's PCB litigation defense I organized the identification and collection of all documents in the possession of the company that related in any way to the sale and manufacture of PCBs. Upon completion of this work the documents were maintained under the control of the law department. This collection of documents contained both discoverable and nondiscoverable (privileged) documents. 4. Following the collection, review, and consolidation of the documents, I decided that they required substantial organization in order to marshal the documents and facts which in my judgment were relevant and significant from those which were not. Also, it was necessary to organize the documents and facts in a manner which, in my opinion, would be most useful in the defense of pending and anticipated litigation. At my request, David M. Moore assisted me in these tasks. 5. Before commencing the review of the documents, Mr. Moore and I had extensive discussions regarding those documents which we felt would be particularly important in the defense of current and anticipated PCB litigation. During the course of our review of the documents, we decided whether or not particular 2- HARTOLDMONOQ29421 documents were in fact significant enough to be included within the collection of documents selected for organization and categorization for use in ongoing and future litigation. Those documents which we determined to be relevant and significant were included in the litigation resource library. Documents not selected for this library were retained by Monsanto and remained available for appropriate litigation discovery. 6. Beginning in late 1982 I assessed the available computerized retrieval systems for litigation support. I then selected a retrieval software system which, based on my judgment, most closely met our needs in the approximately 34 PCB lawsuits then pending, as well as our anticipated litigation support needs in future cases. 7. As part of the PCB document data base system design, Mr. Moore and I prepared a classification system to be used for creating and organizing coded summaries of documents considered in our judgment to be of importance in the litigation defense of Monsanto's PCB products. This data base contains my legal opinions and theories concerning the defense of Monsanto in then existing and anticipated litigation relating to PCBs, as well as the legal opinions and theories of Mr. Moore. 8. Following the preparation of the classification system for the data base, Mr. Moore and I personally trained a small number of document reviewers employed by Monsanto for the -3- HARTOLDMON0029422 purpose of classifying and summarizing the documents pursuant to our instructions. Those instructions were designed to allow prompt retrieval of the information Mr. Moore and I considered to be significant within the context of Monsanto's overall litigation strategy. Mr. Moore and I supervised and spot-checked this classification and summarization work to assure ourselves that the completed data base would meet our litigation obj ectives. 9. Following completion of the PCB litigation data base, and unti1 my responsibilities were assumed by Mr. Bistline in January 1985, the data base was used exclusively in support of Monsanto's law department and outside counsel in their defense of PCB lawsuits brought 'against the company. All aspects of the development and use of the system were controlled and conducted by counsel for Monsanto. At all times all counsel for Monsanto and their representatives were required to maintain and have, based on my information and belief, maintained strict confidentiality with regards to all aspects of the system. 10. The identity of the documents selected for inclusion in the data base and the classification system used to organize it are in my opinion attorney work product. Their disclosure would certainly reveal my legal opinions and theories as an attorney representing Monsanto in litigation relating to the manufacture and sale of PCBs by Monsanto. Neither documentation relating to the system nor any aspect of the system -4- HARTOLDMON0029423 itself, including the classification system, can be made available to counsel for Stroh Die Casting without revealing my legal opinions and litigation strategy. FURTHER AFFIANT SAYETH NOT. STATE OF COLORADO ) ) COUNTY OF BOULDER ) ss. SUBSCRIBED AND SWORN TO before me this ^2? day of June, 1988 . Notary Public My commission expires: -5- HARTOLDMON0029424 STATE OF WISCONSIN CIRCUIT COURT STROH DIE CASTING CO., INC., Plaintiff, vs. MONSANTO COMPANY, Defendant. MILWAUKEE COUNTY Case No. 639-887 AFFIDAVIT OF DAVID M. MOORE, II DAVID M. MOORE, 11, having first been duly sworn, states the following under oath: 1. I am licensed to practice law in North Carolina, and am a partner in the law firm of Smith Helms Mulliss & Moore, in Greensboro, North Carolina. Since 1971 I have represented Monsanto as an attorney in litigation involving the manufacture and sale by Monsanto of polychlorinated biphenyls ("PCBs"). I have personal knowledge of the statements made in this affidavit, unless otherwise noted. 2. Because of my prior experience in representing Monsanto in PCB litigation, I was asked by Joseph G. Nassif, then a litigation attorney in Monsanto's law department, to assist him during 1982 and 1983 in collecting and organizing the company's PCB-related documents in connection with pending and anticipated PCB litigation. ' DEFENDANT'S EXHIBIT B HARTOLDMON0029425 " 3. After selecting what we considered to be the significant documents for pending and anticipated PCB-related litigation, Mr. Nassif and I drafted a subject matter classification system to be used in the organization and retrieval of the selected documents. That system was based upon our professional assessment of factual and legal issues we considered to be important for pending cases and that we projected would arise in future PCB litigation. A major purpose of the classification system was to enable Monsanto's attorneys to assemble the significant documentary evidence in our possession in support of our defense strategies, and as a result the system does contain and would disclose our legal opinions as to which subj ect areas are important, how the subj ect areas relate to one another, which documents should be classified in each subj ect, and which documents are appropriate to be included in the computerized data base. 4. After the classification system had been substantially completed, representatives trained by Mr. Nassif and me, and working under our instructions and supervision, classified and summarized each of the documents which we had selected for inclusion in the computerized data base. 5. The documents Mr. Nassif and I decided not to include in the computerized data base were retained by Monsanto, and based on my information and belief have been produced when responsive to discovery requests served on Monsanto. 2- - HARTOLDMON0029426 6. Any disclosure of the contents of the PCB data base or of the classification system used in its organization would necessarily disclose Mr. Nassif's and my own legal opinions and litigation strategy. FURTHER AFFIANT SAYETH NOT. SUBSCRIBED AND SWORN TO before me this ______ day of June, 1988. David M. Moore, 11 Notary Public My commission expires: -3- HARTOLDMON0029427 STATE OF WISCONSIN CIRCUIT COURT STROH DIE CASTING CO. , INC. , Plaintiff, vs. MONSANTO COMPANY, Defendant. MILWAUKEE COUNTY Case No. 639-887 AFFIDAVIT OF THOMAS M. BISTLINE THOMAS M. BISTLINE, having first been duly sworn, states the following under oath: 1. I am licensed to practice law in the State of New York. I am an attorney in Monsanto's litigation department with responsibility, among other things, for the management of lawsuits pertaining to the manufacture or sale of polychlorinated biphenyls ("PCBs") by Monsanto. I am the successor to Mr. Joseph G. Nassif in this position. I have personal knowledge of the statements made in this affidavit. 2. In performing my law department responsibilities, I have become familiar with the computerized PCB document data base assembled by Messrs. Nassif and Moore. Under my direct HARTOLDMON0029428 supervision, this system has been used solely in connection with the defense of pending and anticipated PCB litigation. 3. The computerized document data base system, including the document classification system originally prepared by Messrs. Nassif and Moore, has been maintained in strict confidence by counsel for Monsanto. The system has never been produced in any litigation or to any person other than counsel for Monsanto or their direct representatives. The system reflects, in its original design and in its current configuration, the legal opinions of Monsanto's attorneys concerning the identity of factual subject matters important to the defense of Monsanto's PCB cases, the interrelationships between those matters, and summaries of the significant documents relating to those subjects. 4. Access to Monsanto's computerized data base system is in no way necessary for Stroh Die Casting to obtain full discovery in this case. Monsanto has produced and will continue to produce all documents in its possession, including documents inside and outside of the data base, that are responsive to Stroh's requests, subject only to objections made pursuant to the Wisconsin Rules of Civi1 Procedure. I know of no reason why counsel for Stroh cannot formulate their discovery requests without relying on the work product of Monsanto's lawyers. 2- - HARTOLDMON0029429 SUBSCRIBED AND SWORJJ TO before me this y'.-j' day of June, 1988. Notary Public My commission expires: nf'-P - :s 4T`T^ rv. .V '-IjSSfXJR* `4V T'Jf'tfiSSiO l:<y ijjS A -3- HARTOLDMON0029430 services or ivieaa uata uemrai LEVEL 2 - 1 OF 1 CASE PAGE 1 In Re IBM PERIPHERAL EDP DEVICES ANTITRUST LITIGATION, ILO PERIPHERALS LEASING CORPORATION, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant, MEMOREX CORPORATION, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant. MDL No. 163-RM United States District Court, Northern District California Slip Opinion February 10, 1975 [2 DEFENDANT'S EXHIBIT . D OPINIQNBY: McNICHOLS OPINION: Order Denying Motion To Compel Further Answers to Interrogatories Concerning the Trial Support System Used by IBM's Attorneys McNICHOLS, J. On December 2, 1974, plaintiffs filed certain interrogatories inquiring, inter alia, as to whether IBM had recorded documents demanded by them in any computerized system; ~ On December 27, 1974, IBM supplied plaintiffs with a draft of its answers to said December 2, 1974 interrogatories. These draft answers were thereafter revised, and as revised were filed on January 21, 1975. Both the draft and the answers as filed stated, inter alia, that IBM had created no computerized system of the character described in plaintiffs' December 2, 1974 interrogatories, but that IBM's counsel have developed a computerized trial support system which includes summaries and analyses of certain of the IBM documents requested by plaintiffs in these actions; ' Pursuant to a schedule agreed to by the parties, plaintiffs moved on January 10, 1975, for an order compelling IBM to describe its attorneys' computerized trial support system with particularity. In said motion, plaintiffs stated that their ultimate intention was to seek an order entitling them to use said computerized trial support system to identify documents pursuant to search criteria designated by plaintiffs; On January 20, 1975, IBM filed a memorandum and affidavits of Charles M. Waygood and Nicholas deB. Katzenbach in opposition to plaintiffs' motion with respect to the computerized trial support system; Plaintiffs' motion to compel further answers regularly came on for hearing on January 24, 1975, and argument was heard from both sides. Now, therefore, the Court finds as follows: 1. The computerized trial support system developed by IBM's counsel and the material contained therein was prepared solely for litigation, and it was put in the computerized form so that it could be used in connection with litigation. 2. All documents and other materials referenced by the trial support system of IBM's counsel are available through normal discovery to the plaintiffs. lexis nexis lexis ivimm HARTOLDMONOQ29431 Services of Mead Data Central Slip Opinion PAGE 2 The trial support system in no way hides, destroys or deprives the plaintiffs of access to any evidence whatsoever. 3. The trial support ststem created by IBM's counsel reflects their mental impressions, theories and thought processes, and the Court is not satisfied that information contained in that system can be segregated from such lawyers' mental impressions and theories. 4. To allow plaintiffs a more detailed description of the trial support system, or to allow plaintiffs to make use thereof, would impinge on the right of IBM's counsel to organize material in the perspective they want to put it in, and to utilize such information in their trial preparation. Plaintiffs have failed to make a sufficient showing of need or urgency to justify such a result. 5. Plaintiffs have failed to show that there are no alternate means available to them to obtain the equivalent information without undue hardship. 6. The Court will not exercise its discretion to compel disclosure of information from or about the trial support system simply because it would be somewhat more convenient for plaintiffs if the Court did so. Based on the foregoing, it is hereby ordered that: IBM will not be required to make any further answer to plaintiffs' Interrogatory No. 5 of December 2, 1974; and _ Neither IBM nor its attorneys will be required in further discovery proceedings in this litigation to divulge trial support proceedings sought to be reached in that form. LEXIS NEXIE LEXIS Mimm HARTOLDMON0029432