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UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION In Re: GARLOCK SEALING TECHNOLOGIES LLC, et al., Debtors. ) ) ) ) ) ) ) ) Chapter 11 Case No. 10-31607 Jointly Administered

CERTAIN LAW FIRMS’ OBJECTION TO DEBTORS’ MOTION TO REMOVE CONFIDENTIALITY DESIGNATIONS FROM CERTAIN EVIDENCE FOR PURPOSES OF TRIAL The law firms of Belluck & Fox, LLP; Shein Law Center, Ltd.; Simon Greenstone Panatier Bartlett, PC; and Waters & Kraus, LLP, along with Mark Iola of Stanley Iola, LLP (collectively, the “Law Firms”) file their Objection to the Motion of Debtors to Remove Confidentiality Designations from Certain Evidence for Purposes of Trial (the “Motion,” Dkt. No. 2979) and respectfully state as follows: BACKGROUND 1. On March 22, 2011, this Court entered the Stipulated Protective Order at the

joint request of the parties to the Estimation Trial, including Debtors. See Docket No. 1225 (the “Stipulated Order”). This order guarantees the protection of designated “Confidential Information” Stipulated Order at § 1(g).1 The Stipulated Order allows a recipient of discovery thought to have been wrongly designated as confidential to raise its dispute
1

On December 20, 2012, the Stipulated Order was amended by the Amendment to Stipulated Protective Order (Docket No. 2704) which makes it clear that third party targets of discovery such as the Law Firms can avail themselves of the Stipulated Order.

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“promptly;” requires “negotiat[ions] in good faith” before a resolution is sought from the Court; and mandates written notification of an “impasse” upon the unsuccessful conclusion of negotiations. Stipulated Order at § 5. 2. On November 6, 2012—as part of discovery in their estimation trial—

Debtors served subpoenas duces tecum2 on the Law Firms (the “Subpoenas”).3 Although willing to be deposed subject to the protection of the Stipulated Order, the Law Firms considered the document requests overbroad, irrelevant to estimation, and unreasonably burdensome. Further, many of the documents sought (especially trust claim forms, Rule 2019 statements, and ballots) were of a highly confidential nature. 3. The Law Firms joined in the Asbestos Claimants Committee’s (“ACC”)

motion for a protective order.4 This Court—receptive to the Law Firms’ and ACC’s arguments but swayed by Debtors’ insistence that they needed the discovery for estimation—granted some of the production sought, with significant restrictions.5

2

Mark Iola was served a subpoena seeking his deposition only.

3

The Subpoenas sought a deposition from each firm on a range of topics surrounding the Law Firms’ representation of clients with mesothelioma (including settlement practices and trust claims filing practices) and a large amount of documents (including trust claim forms, ballots, 2019 statements and exposure evidence). See Motion of the Official Committee of Asbestos Personal Injury Claimants for a Protective Order with Respect to Document Demands Included in Garlock’s Subpoenas Duces Tecum to Five Law Firms (Docket No. 2623) and the Joinder in, and Additional Argument With Respect to the Motion filed by Certain Law Firms (Docket No. 2627) (“ACC Protective Order Motion”). Mark Iola was not subject to a subpoena duces tecum and therefore did not join in this litigation.
5 4

See Order Denying in Part and Granting in Part Motion by Official Committee of Asbestos Personal Injury Claimants for Protective Order with Respect to Document Demands Included in Garlock's Subpoenas Duces Tecum to Five Law Firms, Certain Firms' Joinders in Committee's Motion, and Motion to Quash and for Protective Order of Troy D. Chandler and Williams Kherkher Hart Boundas LLP (Docket No. 2686).

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4.

Over the next month and a half, the Law Firms produced documents sought

by the Subpoenas and gave depositions.6 At all times, the Law Firms believed that the documents produced, the deposition testimony and various exhibits were subject to the Stipulated Order and would be maintained as confidentially designated material (the “Confidential Information”). Debtors’ counsel unequivocally announced the parties’ agreement to designate the deposition and exhibits confidential at the start of the Belluck deposition on December 14, 2012 (thus waiving any later argument that the deposition was not confidential). At each subsequent deposition, the Law Firms’ counsel designated the depositions as confidential consistent with prior practice,7 receiving Debtors’ counsel’s assent to such designation.8 5. On March 1, 2013, some eleven weeks after the first deposition and six

weeks after the last, Debtors sent a letter purporting to dispute the confidentiality of the Confidential Information and announced their intention to seek to use the depositions and the documents produced in discovery publicly. In such regard, Debtors’ invited the Law

6

The deposition of Joseph Belluck of Belluck & Fox took place on December 14, 2102, the deposition of Jeffrey Simon of Simon Greenstone Panatier & Bartlett took place on January 4, 2013 (and was continued on March 26, 2013), the deposition of Peter Kraus of Waters & Kraus took place on January 14, 2013, the deposition of Mark Iola took place on January 15, 2013 and the deposition of Benjamin Shein of the Shein Law Center took place on January 16, 2013. In each case, the documents sought by the subpoena were produced in advance of the depositions.

7

As the documents requested by the subpoena were produced for the depositions and immediately before the depositions, the Law Firms believe that the documents are covered under the confidentiality designation made at each deposition. As the depositions are Confidential Information protected by the Stipulated Order, the Law Firms do not wish to put such protected status in jeopardy by quoting verbatim from the deposition transcripts. If the Court would find it helpful to see the specific language used by counsel, the Law Firms would be more than willing to provide a copy of the transcripts for in camera review.

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Firms to suggest portions of the Confidential Information they might wish to remain confidential. Counsel for the Law Firms responded promptly and initiated a review of the depositions and materials to see if any of the Confidential Information were suitable for public dissemination. 6. As the Law Firms completed their reviews, they responded to Debtors’

dispute, noting their belief that their depositions and documents would be treated as confidential. In Joe Belluck’s case, Debtors’ counsel had actually announced that the parties had agreed to such a confidential designation.9 The Law Firms, however, offered to withdraw the designation of confidentiality for any materials they had been able to establish were suitable for public use while maintaining that continued confidentiality as to the rest was essential.10 7. On June 5, without a meet-and-confer having taken place, Debtors’ counsel

sent out an email purporting to be a written notice of “impasse” and announcing Debtors’ intent to file a motion with the Court. Counsel for the Law Firms responded that such a notice was premature prior to a meet-and-confer, which was arranged for June 12. At that conference, the Law Firms’ counsel made clear that the Law Firms were willing to consider a reasonable compromise proposal. Debtors’ counsel ended the call by withdrawing the notice of impasse and suggesting that Debtors would contact counsel about such a proposal.

Accordingly, Belluck & Fox has declined to consider lifting confidentiality with respect to any of the deposition, given Debtors Counsel’s unequivocal announcement of the parties’ agreement that the deposition was designated as confidential.
10

9

The Law Firms made an initial response on March 11, 2013. On March 20, 2013, Belluck & Fox responded in full. On April 25, 2013 Waters & Kraus and Mark Iola responded in full. On May 2, 2013, the Shein Law Center responded in full. On May 9, 2013, Simon Greenstone responded in full.

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8.

On July 3, without further communication and without a further notice of

impasse, Debtors filed the Motion.11 On Sunday, July 14, over a month after the conference call, only a week before the hearing and a few days before the Law Firms had to respond to the Motion, Debtor’s counsel belatedly sent an email stating that it intended to use over 1500 extracts from the depositions at the trial and inviting the Law Firms to comment on whether each extract should remain confidential and the basis for confidentiality.12 A further meet and confer on July 16, 2013 did not result in any further clarity from Debtors or a consensual resolution. ARGUMENT 1 Debtors collaterally attack the Stipulated Order and ignore procedural protections therein and in orders of two United States District Courts and this Court specifically protecting Rule 2019 information from public disclosure. 9. The Motion purportedly seeks “to remove confidentiality designations from

certain evidence that law firms have designated as confidential” under the Stipulated Order.13 According to the Motion, the Debtors wish to remove the designation of confidentiality from the following evidence: a. Documents produced by law firms pursuant to subpoena relating to seventeen “Designated Plaintiffs,” consisting of documents pertaining to the plaintiffs’ asbestos exposures produced during tort cases and Trust claims, ballots, and Rule 2019 statements filed for these plaintiffs;

11

Although the Motion is not specific about which law firms it wishes this Court to remove confidentiality designations in respect of, it mentions the Law Firms by name in the “Relief Requested” section at pages 7-8.

Debtors’ counsel also incorrectly stated that the Debtor did not believe that any of the documents had been designated confidential, despite the prior letters and the Debtors’ own acknowledgement in the Motion that the documents were at issue.
13

12

Motion at p. 1.

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b. Testimony from six law firms provided under subpoena about the exposures identified to Garlock during the tort case; Trust claims, ballots, and 2019 statements filed for these plaintiffs; exposures underlying those Trust claims, ballots, and 2019 statements; and law firms’ practices with respect to exposure evidence, Trust claims, ballots, and 2019 statements; c. The report of Professor Lester Brickman, which Debtors have designated confidential solely because it references in part the above evidence that has been designated confidential. Motion at 2. Debtors are careful not to say the Law Firms’ designations of that “certain evidence” were improper under the Stipulated Order to which Debtors assented more than two years ago. At best, Debtors have changed their minds since signing off on the Stipulated Order and now “wish to present publicly” matters that the Law Firms have designated as confidential.14 Perhaps more plausibly, however, Debtors’ agreement to the Stipulated Order may have been a cynical means to a dubious end: gain access to Confidential Information first, then press to make it public. 10. As noted, the Stipulated Order defines what is meant by “Confidential

Information.” It mean “Discovery Material” (i) produced by a Producing Party—such as the Law Firms—or previously been produced pursuant to an existing confidentiality agreement; designated as Confidential Information by the Producing Party, and (iii) … believed in good faith by the Producing Party to contain information that has not been made public and which the Producing Party would not make public in the ordinary course of its activities, including, without limitation … information regarding individual asbestos claimants….15 Nowhere in the Motion do Debtors allege that the Law Firms’ confidentiality designations were improper or inconsistent with the terms of the Stipulated Order. Indeed, it is hardly uncommon for any law firm to maintain as confidential matters bearing on the
14

Id. at ¶ 2. Stipulated Order, § 3(g).

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settlements of its clients’ claims—matters that have neither been made public nor would be made public in the ordinary course of the Law Firms’ practices.16 But these Debtors are no longer content with the parameters to which they stipulated in March 2011 and want to strip away the confidentiality to which they previously agreed and which played a pivotal role in motivating the Law Firms to make the Confidential Information available to Debtors for the limited purpose of the forthcoming estimation trial.17 11. Baiting-and-switching implicates black-letter principles of estoppel. The

central notion underlying estoppel is an intention that one’s conduct will be acted upon by another to his detriment.18 Debtors, by way of their stipulated confidentiality undertakings, assuredly intended to coax the Law Firms into producing documents and testifying at depositions, which the Law Firms subsequently did. Debtors are consequently estopped from contesting those undertakings to which they long ago agreed.

The same reasoning applies to the internal processes by which law firms might evaluate claims for filing with asbestos trusts, participate in bankruptcy cases on behalf of clients, and other matters covered by the Confidential Information. Debtors raise a whole host of potential authority that might bolster their ability to do with the information as they wish, from Section 107 of the Bankruptcy Code to the First Amendment. None of this is relevant to the questions before this Court, which is whether the Law Firms correctly invoked the terms of the Stipulated Order and whether Garlock has raised a valid dispute thereto. Debtors voluntarily entered into the Stipulated Order and limited their rights to use designated information publicly. It has also sought the protection of the Stipulated Order many times for its own confidential information. That having been said, the substance of Debtors’ arguments is also suspect. For example, Section 107(b) of the Bankruptcy Code provides the ability for a court to protect from public disclosure “a trade secret or confidential research, development or commercial information.” 11 U.S.C. § 107(b). The internal procedures and practices of counsel for personal injury claimants in the preparation and prosecution of tort actions fall squarely within the realm of a trade secrets and/or confidential commercial information.
18 17

16

See, e.g., Gladden v. Pargas, Inc., 575 F.2d 1091, 1094 (4th Cir. 1977).

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12.

Indeed, it is unseemly for a litigant to collaterally attack a stipulated order to

which it has already agreed: French's arguments constitute an impermissible collateral attack on the Court's valid and binding order. French surrendered his right to argue over the initial validity of Santa Fe Properties' registered trademarks and service marks in this case when they agreed to the terms of the Stipulated Order. French does not get a second bite at the apple.19 13. Debtors’ indifference to the Stipulated Order even extends to its provision

addressing disputes over confidentiality. Section 5 sets forth what the Debtors needed to do if they really disputed the Law Firms’ designations of Discovery Material as Confidential Information (as opposed to just getting a case of buyer’s remorse over what they stipulated to in 2011). First and foremost, Debtors needed to act promptly, which they have not. Instead of giving the Law Firms “prompt written notice of the dispute”20 as required, they dawdled silently for weeks—even months. Some of the confidentiality designations Debtors are challenging by the Motion were made in December 2012; most were made in January 2013. Yet Debtors’ did not reveal any disputes over the Law Firms’ designations until March 1. The shortest period of time taken by Debtors to dispute the designation of the Confidential Information is 6 weeks, and the longest almost 3 months.

See, e.g., Santa Fe Properties, Inc. v. French & Fine Properties, Inc., No. CIV 04-0518JB/DJA, 2005 WL 2313680 (D.N.M. Aug. 5, 2005); In re Wharry, 91 B.R. 31, 34 (Bankr. N.D. Ohio 1988) (Because the necessary facts are undisputed, an evidentiary hearing is not necessary and the court finds that Toledo Trust is bound by its stipulation and may not collaterally attack these stipulated facts.”); cf. In re Met-L-Wood Corp., 861 F.2d 1012, 1018 (7th Cir. 1988) (“Gekas's suit does not seek to rescind the sale [pursuant to 11 U.S.C. § 363(f)]. But by seeking heavy damages from the seller, the purchaser, the purchaser's purchaser (Pipin), a law firm involved in the transaction, and the secured creditors that benefited from the sale, the suit is a thinly disguised collateral attack on the judgment confirming the sale.”).
20

19

Stipulated Order, § 5.

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14.

Additionally, Debtors have been notably lax about negotiating with the Law

Firms in good faith in an attempt to resolve their belatedly revealed dispute. Instead of making an effort to identify specific materials as to which they wanted confidentiality to be lifted—where the matter was left when Debtors last conferred with the Law Firms— Debtors’ just went ahead and filed their Motion. And they did not, it should be noted, send the Law Firms a written notice of the impasse as required under § 5 of the Stipulated Order.21 15. Debtors’ “impasse,” it must be remembered, is their change of mind and

dissatisfaction with the confidentiality undertakings to which they long ago agreed. Disposition of the Motion will not impact in any way Debtors’ ability to present their estimation case at trial. The Motion has everything to do with Debtors’ zeal for the limelight, for press conferences, and for relentlessly petitioning Congress unfettered by the confidentiality restrictions to which they freely submitted. 16. That Debtors want confidentiality lifted from the Rule 2019 Statements of

certain “Designated Plaintiffs” speaks eloquently to the Motion’s lack of merit. The confidentiality of that “certain evidence” has been thoroughly adjudicated in numerous forums and conclusively resolved in a manner not entirely to Debtors’ liking. The Court will recall that two United States Districts Courts issued orders concerning Debtors’ access to
21

As noted, Debtors did send an email on June 5, purporting to be a notice of impasse under the Stipulated Order (having not—at that point—met and conferred with counsel for the Law Firms at all). Debtors withdrew that notice on a conference call on June 12. Thus, the Debtors did not send the notice of impasse required under the Stipulated Order. Should the Debtors attempt to contend that the June 5 notice was not withdrawn, then they are still in breach of the Stipulated Order, which states that a party seeking to dispute the confidential status of Confidential Information shall have 5 business days from the delivery of such a notice to file a motion seeking an order from the Court resolving the dispute. Almost a month passed between the purported notice and the filing of the Motion.

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and use of 2019 Statements embodying confidential information submitted in 12 bankruptcy cases, most now closed, before bankruptcy courts in Delaware and Pittsburgh. Specifically, both orders provided: This Order authorizes Garlock to use such 2019 Exhibits solely in connection with the estimation proceedings in Garlock’s chapter 11 cases pending in the North Carolina Bankruptcy Court, and neither the 2019 Exhibits nor the information contained therein may be used for any other purpose.22 17. If that were not enough, this Court subsequently entered its Order

Governing Use and Confidentiality of Certain Exhibits from Other Bankruptcy Cases on March 26, 2013. It provided: 2019 Exhibits are confidential and shall be treated as such without need of any special designation. Any entity granted access to 2019 Exhibits as provided in this order must maintain the confidentiality of the same in a manner consistent with the obligations and restrictions imposed herein.23 Further, consistent with the district courts’ directives, it provides: “Neither 2019 Exhibits, nor any analyses, conclusions, summaries, excerpts, redacted copies derived therefrom, nor any knowledge obtained therefrom, shall be used for any purpose other than the Estimation Proceeding.”24

22

In re Motions for Access of Garlock Sealing Technologies LLC, Civ. No. 11-1130-LPS, Dkt. No. 67 at ¶ 2 (D. Del., Mar. 14, 2013) and Garlock Sealing Technologies LLC v. Pittsburgh Corning Corp., etc., Civ. No. 2:11-cv-01046-NBF, Dkt. No. 33 at ¶ 3 (W.D. Pa., Mar. 19, 2013). Dkt. No. 2807 at ¶ 9.

23

24

Id. at ¶ 13. In addition to this Court’s order on the heels of the district courts’ rulings, the bankruptcy judge who had provided over the dozen reorganizations underlying the district court proceedings also issued its Order Establishing the Protocol for Production of 2019 Exhibits to further ensure that the 2019 Exhibits Debtors are handled and subjected to appropriately limited dissemination in light of the district court’s rulings and in a manner consistent with their confidential content. See In re W.R. Grace & Co., et al., etc., Case No. 0101139-KJC, Dkt. No. 30490 (Bankr. D. Del. & W.D. Pa., Apr. 9, 2013).

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18.

That Debtors, in the face of all this, now casually move to abrogate

confidentiality as to these materials is breathtaking. The Motion is singularly indifferent to the rulings of the various courts on the Rule 2019 issues, collaterally attacking them as well as to Stipulated Order in a stunning display of hubris. 2 Debtors do not need to remove confidentiality designations to litigate the estimation trial. 19. Debtors served the Subpoenas in furtherance of their preparations for the

estimation trial. In explaining to this Court why they opposed the ACC Protective Order Motion, Debtors noted that: Debtors served subpoenas for 30(b)(6) depositions on these five law firms to obtain evidence necessary to support their defense to the Committee’s settlements approach to aggregate estimation Debtor’s Response to ACC Protective Order Motion at 5. See also, id. at 9 (“the stakes of the estimation trial easily warrant the modest burden production of the documents places on the Law Firms”). 20. Then, at the hearing on the ACC Protective Order Motion, Debtors argued

explicitly that they needed the documents to effectively take the depositions and to develop the evidentiary record for estimation, stating that the documents: are necessary for us to ensure that we can effectively examine these law firms on, as Mr. Swett put it, the meaning of the claim form, the meaning of 2019 statements, the meaning of ballots … they are necessary to ensure the full development of an evidentiary record for estimation, so that you are permitted to see our case Transcript of hearing on December 6, 2013 at pages 91-92. 21. So, when this Court permitted Debtors to proceed with the document

discovery, it did so based upon Debtors’ representation that they needed the information for its estimation case. The Court noted that it was only permitting the depositions and document discovery because “it appears to a relatively small number of people and I think -11-

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the burden of retrieval … should be not too much.: Id. at 101. The Court did, however, caution that “[i]f this is just a toe in the door, we will stop it later, but, for now, we will that [sic] this go forward.” Id. 22. With the filing of the Motion, Debtors cast aside any pretense that the

discovery was just about the estimation trial. They brazenly cite myriad purposes for which they wish to use the Confidential Information:   champion the public’s right to review evidence that supports Debtors’ position that law firms have concealed exposure evidence from Debtors (See Motion at 11-12); further its legislative agenda and provide the information obtained through its discovery efforts to Congress and state legislatures for use when considering legislation sponsored by Debtors and their cohorts (Id.); assist litigants in other asbestos cases, and courts hearing those cases (Id.); provide materials to The Wall Street Journal, Forbes and other publications with a favorable ear for Debtors’ tales of woe (Id.); provide information for financial stakeholders such as the shareholders of Debtors’ ultimate corporate parent, the market for public securities, and non-asbestos creditors in this case. (Id. at 13); and rebut in public forums statements purportedly made by ACC counsel and a lawyer for one of the Law Firms (Id. at 6 & 13).25 23. Debtors end the Motion with a plaintive plea for this Court to be fair to a

  

host of putatively interested parties unconnected with this estimation trial, stating that

25

Perhaps the Law Firms should be relieved that Debtors stop there rather than suggesting, as Debtors’ parent did in litigation over Debtors’ quest for ballots, that the Confidential Information would make good wallpaper or a cheap replacement for packing peanuts. See Response by Coltec, Inc. to Motion by Committee of Asbestos Personal Injury Claimants to Deny the Debtors Access to Court Records (Docket No. 1950) at 5 (“Even if the Debtors had no purpose for the ballots other than to use them as wallpaper for their company dining room or as packing material for shipping their products, they would still be entitled to ask for them and to get them.”).

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It would be fundamentally unfair for Congress, the public, state legislators, state & federal courts, other asbestos defendants, stakeholders in Debtors’ parent, and Debtors’ other creditors to have to rely on an inaccurate or one sided public account of this important issue. Id. at 15. To be able to achieve these ends, Debtors must have the Confidential Information available for public dissemination—something they already bargained away in the Stipulated Order. 24. What Debtors may do with the Confidential Information is attempt to use it

for the purpose for which they claimed to need it: evidence at its estimation trial to assist this Court with determining the aggregate amount of Debtors’ liability for mesothelioma claims (although the ACC may object to some or all of this putative evidence). Debtors need no ability to disseminate the documents publicly to attempt to present their estimation case effectively. This Court will still have access to all the evidence Debtors wish to offer and the Court considers germane if the Confidential Information is presented under the coverage of the Stipulated Order. For Debtors to claim their ability to have a fair hearing is undercut by the confidentiality protections to which they long ago agreed is insupportable. 25. Further, a lot of other evidence at the forthcoming estimation trial—

including much evidence provided by the Debtors—will be presented subject to confidentiality directives. In the lead up to the estimation trial, nary has a week gone by without one party or another filing something under seal in this case (for example, on July 9 alone this Court entered five orders granting motions to file pleadings under seal), and if this pattern is followed at the trial, a large portion of it will be closed to the public. 26. In any event, Debtors may not be able to use the Confidential Information

at the estimation trial pending this Court’s disposition of the Motion and any subsequent appeal due to additional protections provided by the Stipulated Order. The estimation trial is due to commence on July 22, the day this Motion is set for hearing, and has a limited -13-

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allocation of court time. The Stipulated Order provides that any information designated as confidential and subject to a validly raised dispute “shall be treated as Confidential Information pending the Court’s decision and any appeal therefrom.”26 Even if the Court were to find that the Debtors had raised a valid dispute, the Law Firms would appeal to protect the sensitive information and the confidentiality would be maintained during the pendency of this appeal. That the Debtors are pressing the Motion despite there being zero chance of a resolution of any appeals prior to the conclusion of the estimation trial starkly illustrates their ulterior purpose of publicizing Confidential Information that has nothing to do with the estimation of their mesothelioma liability. 27. Whatever Debtors’ hopes for the Confidential Information might be, they

cannot escape this simple fact: they sought the materials for use in their estimation trial and can use those materials, for that purpose—without the slightest hindrance—under the auspices of the Stipulated Order. This Court should not countenance stripping hugely sensitive materials of such protection—protection to which Debtors’ freely agreed—at the behest of parties who wish to use the materials for purposes outside the confines of this trial. 3 The Law Firms relied on the confidentiality provided by the Stipulated Order when being deposed and were candid in a manner they would not have been had they understood the depositions and documents to be in danger of being released publicly. 28. Information that is not made public by the law firms in the ordinary course

of business—in the form of documents and deposition testimony—was provided to the Debtors by the Law Firms in reliance that such information would be and would remain designated as “Confidential Information.” Indeed, deposition testimony likely would not have been provided without the Stipulated Order. Debtors’ counsel announced, at the start
26

Stipulated Order § 5.

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of the Belluck deposition, that the parties had agreed to the confidentiality designation. At all subsequent depositions by the Law Firms, counsel for the deponent referred to prior practice and, again, invoke the Stipulated Order, with Debtors’ counsel acknowledging that invocation. 29. It bears noting that federal courts are loathe to allow taking the deposition of

a party’s attorney except in very limited circumstances in which no other means exist to obtain the information and it is both relevant and crucial.27 Courts in other jurisdictions, including courts in the Fourth Circuit have applied that Shelton analysis and determined that depositions of counsel were barred.28 30. Because the Confidential Information was provided by the Law Firms to the

Debtors pursuant to a Stipulated Order, under which the Debtors agreed to maintain the confidentiality of the information provided, the Debtors were not required to show that the limited circumstances required by most federal courts were present in this case. 31. Additionally, some information was disclosed by the Law Firms pursuant to

the Stipulated Order that would otherwise have been protected from discovery. For
27

See Shelton v. Amer. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1987), the Eighth Circuit found that depositions of opposing counsel “should be limited to where the party seeking to take the depositions shows that (1) no other means exist to obtain the information that to depose opposing counsel, . . . ; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” See, e.g., Asbury v. Litton Loan Servicing, LP, No. 3:07-500, 2009 WL 973095, *3 (S.D. W. Va. April 9, 2009) (applying Shelton and barring deposition of Plaintiff’s counsel because information was available from other sources); In re Fotso, No. 05-29843, 2006 WL 4482001, *2 (Bankr. D. Md. Nov. 27, 2006) (barring deposition of debtor’s attorney under the Shelton analysis). At least one federal court has applied Shelton to depositions of a law firm’s employees. In a recent decision, the District Court of Kansas concluded that “the Shelton criteria would still be applicable as depositions involving the law firm’s employees also has the potential for abuse.” Buth v. Allied Group, Inc., Civil Action No. 12-CV-1223-JWL-DJW, 2013 WL 1308543, *2-4 (March 28, 2013) (applying Shelton and granting motion to quash deposition of counsel’s representative).
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example, the Debtors discussed the Law Firms’ settlement methodology in the depositions taken subject to the Stipulated Order. A firm’s settlement procedures are normally protected by the attorney work product doctrine. As a court in Massachusetts has noted: This Court agrees . . . that allowing [defendant] access to all of these documents, which are subject to the attorney-client privilege and work product immunity, will unfairly give it an opportunity to exploit any internal discussions engaged in between [a non-party witness] and its counsel and give it advantages in future litigation.29 32. In the settlement negotiations context, courts have recognized the

importance of guarantees of confidentiality in fostering the necessary spirit of openness and candor. As one court noted: If participants cannot rely on the confidential treatment of everything that transpires during these sessions then counsel of necessity will feel constrained to conduct themselves in a cautious, tight-lipped, non-committal manner more suitable to poker players in a high-stakes game than to adversaries attempting to arrive at a just resolution of a civil dispute.30 In reliance on the protections of the Stipulated Order, the Law Firms were as candid as possible when giving deposition testimony. Without its assurances of confidentiality, the Law Firms would certainly have stood on their rights and resisted divulging such sensitive and confidential material. The subjects of the depositions and discovery—internal procedures for settlements, trust claims, case handling and other matters integral to the practice of personal injury law—cut to the heart of material worthy of protection from public disclosure.

Dedham-Westwood Water Dist. v. National Union Fire Ins. Co., CIV.A. 96-00044, 2000 WL 33593142, *5 (Mass. Sup. Ct. Feb. 2, 2000).While the court referred to advantages in future litigation, disclosure of a firm’s work product regarding its settlement procedures can be used against that firm in future negotiations as well.
30

29

Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d 928, 930 (1979).

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33.

Parties to an agreed protective order—here, the Stipulated Order—have

provided information in reliance on such an order. For that reason, good cause must be shown to modify such a protective order. That is precisely what the Debtors ask the Court to do in requesting that the Court “remove confidentiality designations.” As the District Court of the Northern District of Indiana has observed: “The party seeking to modify the protective order has the burden of demonstrating that good cause exists.” “This burden is especially high where a protective order is agreed to by the parties before its presentation to the court.”31 Debtors cannot meet their burden. The Motion reveals that no cause at all exists to modify the remove confidentiality designations that is germane to the Estimation Proceedings. 34. In similar circumstances, a United States Magistrate Judge recommended that

a party’s motion to vacate a protective order to which it had agreed be denied. In making that recommendation, the court wisely observed: It is important to recall that the defendant agreed to the entry of the order. They need not have done so, but having done so, their agreement ought not be blithely cast aside. *** After all, the defendant did not have to agree on the order . . . . It would then have been left to the court to determine whether the documents were confidential and to have imposed her own protective order. The defendant chose a different course. It negotiated and agreed to an order that it now seeks to repudiate. Parties to litigation like parties to commercial transactions ought to be bound by their agreements absent good reason to excuse them.32

Romary Assocs., Inc. v. Kibbi, LLC, No. 1:10-cv-376, 2012 WL 43969, *1 (N.D. Ind. Jan. 6, 2012) (citations omitted; emphasis added).
32

31

Kyles v. J.K. Guardian Sec. Servs., No. 97 C 8311, 2006 WL 2349238, *8 (N.D. Ill. Aug. 15, 2006).

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35.

The Debtors did not have to agree to the Stipulated Order. They could have

left if to the Court to determine what information should be protected and what information did not have to be disclosed to the Debtors at all. Debtors’ bait-and-switch tactics should not be countenanced by the Court. Debtors’ Motion should be denied in its entirety. JOINDER 36. The Law Firms hereby join in and adopt, as if fully set forth herein, any

arguments made by other parties in response to the Motion, to the extent applicable to and consistent with this objection. CONCLUSION AND PRAYER FOR RELIEF Wherefore, for the foregoing reasons, the Law Firms respectfully urge this Court to deny the Motion as it pertains to the Law Firms, maintain the confidentiality of the Depositions and the Discovery Documents, and grant such other and further relief to which the Law Firms may be justly entitled.

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Dated: July 17, 2013

/s/ G. Martin Hunter G. MARTIN HUNTER, ATTORNEY AT LAW 301 S. McDowell St., Suite 1014 Charlotte, North Carolina 28204 (704) 377-8764 (704) 377-0590 (facsimile) -andSander L. Esserman David A. Klingler David J. Parsons Jo E. Hartwick STUTZMAN, BROMBERG, ESSERMAN & PLIFKA, A Professional Corporation 2323 Bryan Street, Suite 2200 Dallas, Texas 75201 Telephone: (214) 969-4900 Facsimile: (214) 969-4999 COUNSEL FOR BELLUCK & FOX, LLP; SHEIN LAW CENTER, LTD.; SIMON GREENSTONE PANATIER BARTLETT, PC; WATERS & KRAUS, LLP; and MARK IOLA of STANLEY IOLA, LLP

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