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IN THE UNITED STATES BANKRUPTCY COURT


FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Charlotte Division
IN RE:
Case No. 10-BK-31607
GARLOCK SEALING TECHNOLOGIES
LLC, et al.,

Chapter 11

Debtors.1

Jointly Administered

DEBTORS REPLY IN SUPPORT OF MOTION FOR LEAVE


TO SERVE SUBPOENA ON MANVILLE TRUST
Debtors hereby submit this Reply in support of their Motion for Leave to Serve Subpoena
on Manville Trust (Docket No. 4599) (the Motion) and in opposition to the Objection of NonParty Manville Personal Injury Settlement Trust to the Debtors Motion for Leave to Serve
Subpoena (Docket No. 4638) (Manville Objection) and the Response and Limited Objection of
the Official Committee of Asbestos Personal Injury Claimants to Debtors Motion for Leave to
Serve Subpoena on Manville Trust (Committee Objection).
The Committee and Manville Trust do not deny Debtors right to issue a subpoena to the
Manville Trust seeking data regarding non-mesothelioma claimants, but challenge the scope of
the proposed subpoena (the Subpoena) and the confidentiality restrictions that will apply to the
information produced.2
I. The Data Requested Are Indisputably Relevant to Estimation of Non-Mesothelioma
Claims and Plan Feasibility

The debtors in these jointly administered cases are Garlock Sealing Technologies LLC; Garrison
Litigation Management Group, Ltd.; and The Anchor Packing Company (hereinafter Garlock or
Debtors).
2
The Manville Personal Injury Settlement Trust (Manville Trust) has agreed to submit all its objections
to Debtors Subpoena to this Court for final resolution. Counsel for the Committee in a conference before
Debtors filed their Motion stated that the Committee did not anticipate objecting to the Motion, but
subsequently filed an objection anyway.

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The Manville Trust first argues that the requested data are not relevant to estimation of
non-mesothelioma claims or Plan feasibility, questioning why Debtors require data pertaining to
individual claimants instead of aggregate or anonymized data, and also questioning Debtors
need for certain kinds of data. Manville Objection 40-46.
A. The Court Has Long Recognized That Discovery Pertaining to Individual Asbestos
Claimants Is Legitimate and Necessary
As Debtors explained in their Motion, the Subpoena seeks information relevant to nonmesothelioma claim estimation and Plan feasibility. For mesothelioma claims, this information
was largely collected through the personal injury questionnaire (PIQ). The Manville Trust
admits that it routinely provides the requested information to asbestos defendants who subpoena
it. See Manville Objection 17.
The Manville Trusts argument that data regarding individual claimants is irrelevant to
aggregate analysis is incorrect. As he explains in the declaration attached as Exhibit A (Bates
Declaration), Dr. Batess method relies on individual-level data from claimants that is
analyzed by using established econometric statistical methods to reach conclusions about
aggregate estimates. Id. 5. The Courts Estimation Opinion demonstrates Dr. Batess reliance
on individual claimant data. See In re Garlock Sealing Technologies LLC, 504 B.R. 71, 95
(Bankr. W.D.N.C. 2014) (describing how Dr. Batess estimate was based on information about
pending claimants collected through questionnaires, and criticizing Committee expert for not
relying on individual claimant data). The Manville Trusts statement that Debtors have no
intention of individually assessing the merits of each and every claim asserted against them,
Manville Objection 48, is falseDr. Bates did exactly that in rendering his reasonable and
reliable aggregate estimate of mesothelioma claims. See id. at 96 (noting that Dr. Bates assessed
numbers of claimants who identified exposure to a Garlock asbestos-containing product);
2

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Estimation Trial Tr. 8/2/13 at 2815:6-14 (testimony of Dr. Bates) (discussing pending
mesothelioma claims, We estimated the aggregate compensatory amount we expect each one of
them could get. We estimated the recoveries for each one of them. . . . We applied to each one of
them the likelihoodliability likelihood that we got, and essentially that gave us a valuation of
the pending claims.).
As Dr. Bates explains in his declaration, the Manville Trusts request for an anonymous
production would render it useless, because Dr. Bates needs identifying information in order to
match the produced data to claimants in the Garlock Analytical Database that he uses for his
expert work. Id. 6(1); see also Declaration of Garland S. Cassada (attached as Ex. B) 8
(Cassada Declaration) (stating that this concern was conveyed to Trust counsel). This Court
previously rejected a request by ten Trusts to anonymize data they produced to Debtors in
connection with the mesothelioma estimation trial, and no different rule should apply to this
request. See Order Granting in Part and Overruling in Part Objections to Subpoena By Delaware
Claims Processing Facility, LLC and Associated Trusts, etc. (Docket No. 2430) 7 (The
request by DCPF, the Trusts, and the Committee for the Trust Data to be anonymized prior to
production to Debtors is denied.).
B. The Manville Trust Routinely Produces the Requested Data to Asbestos Defendants,
Which Is All Relevant to Estimation of Non-Mesothelioma Claims and Plan Feasibility
The Manville Trust claims that Debtors did not explain in their Motion how the requested
information is relevant to estimation of non-mesothelioma claims and Plan feasibility. Manville
Objection 40. To the contrary, Debtors explained that most of the information was requested in
the Court-approved PIQ, upon which Dr. Bates relied in rendering the mesothelioma estimate
that the Court adopted. See Bates Decl. 6. The data are equally relevant to non-mesothelioma
claims estimation. Indeed, the fact that the Manville Trust generally releases all the data
3

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Debtors have requested to asbestos defendants who subpoena it, Manville Objection 17, tacitly
admits that the evidence is all relevant to the merit of claims and not objectionable.3
To remove any doubt about the relevance of the requested information, Dr. Bates in his
declaration explains in detail how all the data requested in the Subpoena are relevant to
estimation of non-mesothelioma claims and Plan feasibility. The data fall into five categories:

Claimant identifying information. Dr. Bates will use fields identifying the claimant to
match the Manville Trust data to claimants in the Garlock Analytical Database, an
essential step in his analysis. Bates Decl. 7(1).

Disease and other information pertaining to alleged injury. The Garlock Analytical
Database currently includes only the most basic information on alleged injury (i.e., lung
cancer, other cancer, non-malignant, unknown). Id. 7(2). That information is
insufficient to determine whether non-mesothelioma claimants qualify for payment under
the Plans Claims Resolution Procedures (CRP), which include criteria regarding
diagnosis, smoking history, and diagnostic tests and exams. Id.; see also CRP at I-4 to I7, I-10 to I-14, II-3 to II-6 (stating medical criteria for non-malignant conditions). The
Manville Trust request will provide valuable information on these topics, Bates Decl.
7(2), and is also relevant to estimation of the allowed amount of non-mesothelioma
claims, id.

Exposure information. The Garlock Analytical Database currently contains very little
data on non-mesothelioma claimants occupations, industries, and exposure histories,
which are relevant both to non-mesothelioma estimation and to the payments nonmesothelioma claimants can receive under the CRP. Id. 7(3); Estimation Opinion at 96.

The Trust mentions other information that it does not routinely provide to co-defendants (such as
correspondence between the claimant and the Trust, id. 18), but Debtors have not requested that and it
should not weigh in the Courts decision on this Motion.

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The Manville Trust data and documents will provide valuable information regarding
these facts. Bates Decl. 7(3).

Tort claimant information. Bates White will use information regarding claimants tort
suits both to match claimants to the Garlock Analytical Database and to eliminate socalled false positives returned by the Manville Trust request (see below for complete
discussion of this issue). Id. 7(4).

Manville Trust claim information. Dr. Bates will use data regarding the Manville Trust
claim in analyzing the timing of Trust claims by Garlock non-mesothelioma claimants,
and in estimating the offsets that would apply to a potential plaintiff verdict. Id. 7(5).
He testified about both of these topics at the mesothelioma estimation trial.
The Manville Trust particularly objects to only a few of the items Debtors have

requested. First, it objects to producing information about the settlements claimants who sued
Garlock received from the Manville Trust. Manville Objection 32, 41. But this Court has
already recognized that claimants other settlements are relevant to Garlocks liability, because
they are potential offsets to any verdict. See Estimation Opinion at 96; see also Bates Declaration
7(5). The Manville Trust relies on a different part of the Courts ruling, where it held that
Garlocks past settlements do not reflect its liability. But this does not show the irrelevance of
third parties settlements. Third party settlements are not relevant because they show those
parties liability, but because they are potential offsets to any obligation of Garlock. That is why
the Court squarely held that those settlements are relevant to estimation of the allowed amount
of asbestos claims against Garlock.
The Manville Trust also cites this Courts discovery ruling very early in the case that
initially denied Garlock settlement-related discovery. See Manville Objection 43. It omits to

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explain, however, that subsequent to the ruling, the Court reversed course. It permitted Debtors
to obtain discovery regarding mesothelioma claimants settlements, and later relied on data from
the discovery it ultimately permitted in rendering its estimation opinion. See Estimation Opinion
at 96.4
The Manville Trust next objects to the relevance of information concerning claimants
non-asbestos-related conditions, to the extent they are contained in medical records submitted to
the Trust, and seeks to redact the information from records produced to Debtors, at Debtors
expense. Manville Objection 44-45, 57(d). The Trust does not insist on this step before
producing full medical records without redaction to co-defendants in asbestos litigation, see id.
17, and does not explain why it seeks to treat Debtors differently. Indeed, because these are
medical records that claimants submitted to substantiate their claims with the Manville Trust,
they are unlikely to contain information irrelevant to the conditions claimants put at issue by
making a claim against Manville and suing Garlock. Moreover, non-asbestos-conditions are
relevant because they can bear on the reliability of the diagnosis of asbestos-related disease. See,
e.g., In re Silica Products Liability Litig., 398 F. Supp. 2d 563, 628 (S.D. Tex. 2005) (finding
that reliability of silicosis diagnoses was undermined by fact that claimants had been diagnosed
with both silicosis and asbestosis, when a golfer is more likely to hit a hole-in-one than an
occupational medicine specialist is to find a single case of both silicosis and asbestosis). The

The Manville Trusts reliance on decisions in other cases denying discovery of settlement amounts is
misplaced. One of the cited decisions expressly recognized the relevance of settlements to offsets, but
deferred production until after the liability phasea procedure that has no application here, where
Debtors expert assesses aggregate liability and damages all at once. See Anderson v. Ford Motor Co.,
2010 WL 4156256, at *1 (E.D. Pa. 2010). In another case, settlement amounts were not requested. See
Shepherd v. Pneumo-Abex, LLC, 2010 WL 3431633, at *1-2 (E.D. Pa. 2010). In a third, the defendant
impermissibly sought settlement amounts to prove liability of those parties in violation of Rule 408not
to prove offsets. See Dent v. Westinghouse, 2010 WL 56054, at *1-3 (E.D. Pa. 2010). The other cases
cited are clearly in conflict with discovery rulings made by this Court, recognizing the discoverability of
Trust claim and settlement information.

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Manville Trust cites no authority showing this information is irrelevant, and appears to recognize
the relevance of the information because it produces the information to tort defendants. In
addition, it would be costly and wasteful to perform those redactions here because Debtors have
committed to keeping all medical information confidential pursuant to protective order. See
Motion 18.
Finally, the Committee and Manville Trust also complain that a first name, last name
matching procedure will result in production of irrelevant data for individuals who did not assert
claims against Garlock. Manville Objection 46. The possibility of so-called false positives
arises because Debtors currently have limited information in the Garlock Analytical Database
with which to perform a matchfor most pending non-mesothelioma claimants, first name and
last name. But Debtors offered the Manville Trust several ways to address this issue. First, once
Bates White receives the data, it will apply advanced algorithms using the information available
to Garlock in the database to identify and remove potential false positives. Bates Declaration
16-18. However, to ensure that Debtors obtain information for the claimants who have sued
Garlock, the discovery must initially include the broader data set, to avoid a false negative
problem where relevant data pertaining to Garlock claimants is mistakenly omitted from the
production because of an overly stringent matching procedure. Id.
Second, Debtors Motion proposed an opportunity for affected claimants (who will
receive notice through the Trusts procedures) to object before any information is produced. This
affords persons who have never asserted a claim against Garlock the opportunity to object to the
production and use of their data in this proceeding. See Motion 17. Finally, Debtors will keep
information for non-unique claimants confidential until the bar date, after which newly gathered
information (such as SSNs) will allow further identification of false positives and deletion of

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those claimants records. These measures represent a reasonable approach to an unavoidable


problem.5
II. Limiting Discovery Of Relevant Evidence By Requiring a Sample Would Be
Inappropriate Where The Manville Trust Has Not Even AllegedMuch Less Proved
Undue Burden
Next, the Manville Trust and Committee seek to limit Debtors subpoena to 10% of the
approximately 91,000 pending non-mesothelioma claimants in their database. As the basis for
this restriction, they cite vague concerns about overbreadth, largely without citing any legal
authority. See, e.g., Manville Objection 4, 47-51.
A. The Manville Trust Does Not Allege Undue Burden, and Therefore Cannot Justify the
Limitation It Proposes
Neither Objection, however, contains any allegation whatsoever that Debtors request for
data pertaining to all pending non-mesothelioma claimants will cause undue burden to the
Manville Trust (or any other allegation supporting a valid discovery objection). Discovery into
relevant evidence is generally proper, Fed. R. Civ. P. 26(b)(1), and may be limited only if the
producing party can demonstrate an undue burden or other concrete and particularized harm. See
Fed. R. Civ. P. 26(b)(2)(C) (proper to limit discovery of relevant evidence when the burden or
expense of the proposed discovery outweighs its likely benefit); Bank of Mongolia v. M & P
Global Fin. Servs., Inc., 258 F.R.D. 514, 518 (S.D. Fla. 2009) (The courts have long recognized
the wide scope of discovery allowed under the Federal Rules of Civil Procedure. . . . The United
States Supreme Court has said that they are to be broadly and liberally construed.) (punctuation
and citation omitted).

The only alternative to this procedure would be to seek these data from claimants themselves, but noone denies that would be far more expensive than the Subpoena.

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Accordingly, [t]he party claiming that a discovery request is unduly burdensome must
allege specific facts that indicate the nature and extent of the burden, usually by affidavits or
other reliable evidence. Tucker v. Ohtsu Tire & Rubber Co., 191 F.R.D. 495, 498 (D. Md. 2000)
(rejecting claim of undue burden where defendants assertions of harassment, burden, prejudice,
and expense are generalized, non-specific objections); see also Convertino v. U.S. Dept of
Justice, 565 F. Supp. 2d 10, 14 (D.D.C. 2008) (This Court only entertains an unduly
burdensome objection when the responding party demonstrates how discovery of the document
is overly broad, burdensome, or oppressive, by submitting affidavits or offering evidence which
reveals the nature of the burden) (punctuation and citation omitted); Bank of Mongolia, 258
F.R.D. at 519 (objecting party must explain the specific and particular way in which a request is
vague, overly broad, or unduly burdensome. In addition, claims of undue burden should be
supported by a statement (generally an affidavit) with specific information demonstrating how
the request is overly burdensome). A party opposing discovery into relevant information has
an obligation to provide sufficient detail in terms of time, money and procedure required to
produce the requested documents. Cory v. Aztec Steel Bldg., Inc., 225 F.R.D. 667, 672 (D. Kan.
2005).6
The Court will search the Manville Objection in vain for an allegation that producing
information for 91,000 claimants is significantly more burdensome than producing information
for 9,100 claimants. The Trusts overbreadth argument contains no such allegation, see Manville
Objection 47-51, much less an explanation by affidavit of how the time, money, and
procedure required to produce the requested documents will be overly burdensome. Cory, 225
F.R.D. at 672.
6

In addition, the scope of discovery from a nonparty by means of a subpoena duces tecum under Rule 45
is coextensive with that of a motion for production from a party under Rule 34. Castle v. Jallah, 142
F.R.D. 618, 620 (E.D. Va. 1992).

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The Manville Trust could not make this claim because it is not true. Debtors crafted their
request specifically to avoid incremental burden, by limiting the request to information that is
stored electronically and linked to claimant names, and which the Manville Trust provides as a
matter of policy when it is subpoenaed by asbestos defendants. See Motion Ex. B. In conferences
with the Manville Trusts counsel, Debtors expressed their understanding that the Trusts
database is highly sophisticated, such that providing data for 91,000 claimants is not materially
different in terms of burden or costs than providing data and records for 9,100 claims. Cassada
Decl. 16. The Trusts counsel stated that he could not deny that Debtors understanding was
correct. Id.
B. The Overbreadth Objection Is an Attempt to Dictate Debtors Discovery and
Undermine Their Case
Absent the ability even to allege undue burden, the objections by the Manville Trust and
Committee are nothing more than an attempt to dictate the terms of Debtors discovery and their
experts analyses, and to impose their views about disputed matters before the Court. The
Manville Trust and Committee admit as much throughout their objections. See, e.g., Manville
Objection 20 ([H]ere, only a random, anonymized sampling of such data is likely to be
necessary to the adjudication); 19 (claiming without citation that mass adjudications entail
fact-finding as to representative claimants, and the extensive use of sampling and other statistical
techniques); Committee Objection at 4 (If, for the limited purposes of plan confirmation
proceedings in this mass-tort bankruptcy, the Debtors expert wishes to posit average values for
groups or types of non-mesothelioma claims using data from sources like the Manville Trust,
there is no reason why he could not do so on the basis of a statistically valid sample.). The
Committee seems to believe that Debtors are constrained to adopt the Committee experts
estimation methodology, which does not rely on collecting claimant data to inform statistically
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valid judgments. See Committee Objection at 4-5. The Court rejected that methodology,
concluding that it was unreliable because it failed to consider current data. See Estimation
Opinion at 95. In any event, it is for Debtors and their experts to decide what they need and what
constitutes an appropriate sample, not the Manville Trust or the Committee. Absent undue
burden, the Manville Trust has no reason to deny Debtors discovery of relevant evidence.7
In fact, as explained in the Bates Declaration, a 10% sample would be inappropriate here,
for several reasons. First, Bates White does not currently know the degree of overlap between
Manville Trust and Garlock claimants, and to ensure statistical validity would have to draw a
large sample that would not differ materially from Debtors request. Id. 11. Second, there is no
evidence that the 10% sample proposed by the Manville Trust and Committee out of thin air
would be appropriate, because the size of a representative sample does not depend on the size of
the population but rather on the variation of the feature in the population that is going to be
analyzed and about which one will draw statistical inferences, and Bates White has not yet had
the opportunity to perform that analysis. Id. 13. Finally, sampling makes analysis needlessly
complicated when all the information requested can be produced without any undue burden, and
a census produces analysis that is more precise than a sample. Id. 10, 12. The Manville Trust
provides no counter-demonstration that a 10% sample would be reasonable in this case.
The Manville Trust relies heavily on certain discovery Debtors took prior to the
mesothelioma estimation trial where they relied on a sampling approach. Manville Objection
50-51. But it fails to note that prior to those samples of pending mesothelioma claimants,
Debtors had the opportunity to seek basic information from all mesothelioma claimants listed as

The Manville Trust also relies on what it has allegedly done in response to previous subpoenas seeking
information about numerous claimants, Manville Objection 21, but those assertions do not justify
limitations on discovery where the Manville Trust has failed to allege any concrete and particularized
harm to its interests.

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pending in the database through the original questionnaire. Later sampling approaches were
based on a variety of factors considered by Debtors and their experts, and benefited significantly
from the previous information collected from the broader group of all pending mesothelioma
claimants. See Bates Decl. 13. Those samples were crafted by Debtors expertsnot imposed
at the behest of a discovery target attempting to dictate the terms of Debtors discovery in
conjunction with Debtors litigation adversary.
The attempt by the Manville Trust and Committee to limit Debtors inquiry into relevant
information, without making any allegation of undue burden, is especially problematic because
of the close association between the Manville Trust and the law firms that make up the
Committee and represent the Committee. The Committees claims expert, Dr. Mark Peterson, is
one of three trustees of the Manville Trust and ultimately responsible for its litigation decisions,
including presumably its decision to object to Debtors Subpoena. Caplin & Drysdale represents
the Selected Counsel of the Beneficiaries, a group of plaintiff law firms that is part of Trust
governance and must consent to certain Manville Trust actions. One of the three Selected
Counsel is Joseph Rice of Motley Rice, who is co-chair of the Committee in this case. The
Manville Trust and Committee disclosed none of these ties in their objections to Debtors
Motion. These undisclosed relationships may help explain why the Manville Trust and
Committee would object to a Motion seeking information the Manville Trust normally provides
to other co-defendants as a matter of policy, and which will admittedly not cause an undue
burden on the Trust.
C. Speculating About Professional Fees Does Not Constitute a Legitimate Discovery
Objection
The Committee makes the additional argument that the Court should impose a sample to
prevent undue expense for the estates. Committee Objection at 6-7. It cites no authority
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demonstrating that this is a legitimate objection to discovery under the Rules, and provides
nothing more than speculation about the harm it insinuates. Unreasonable professional fees are
controlled not by denying discovery that is relevant and will not cause any undue burden, but
instead by the fee objection process, in which the fee examiner now participates and over which
the Court retains complete control. No party has ever objected to the fees of Debtors or their
expert. The Courts adoption of Dr. Batess mesothelioma estimate, and rejection of the
Committees estimate in part because its expert did not use the data Debtors collected, see
Estimation Opinion at 94-95, demonstrate that there are no grounds to question Bates Whites
professional judgment in using data.
In any event, the comparisons the Committee attempts to draw between data collection
for the mesothelioma estimation trial and Debtors Subpoena are crude and inapposite. As Dr.
Bates explains in his declaration, that cost came about primarily because PIQ claimants
submitted hard copy documents (many handwritten) rather than electronic data, and those
documents then had to be scanned, classified, reviewed and analyzed for data extraction. Bates
Decl. 19. Here, because the Manville Trust keeps their data in an organized manner, linked to
claimants, the cost of analyzing such information would be significantly less than the one
incurred in using the PIQ information, not multiples of it. Id.
III. There Is No Basis For Requiring That Non-Sensitive Information Such As Claimant
Names and Exposure Histories Be Kept Confidential
The Committee and Manville Trust also argue that all of the information produced by the
Manville Trust should be kept strictly confidential and used only for purposes of the
confirmation hearing. Debtors in their Motion and in discussions with the Trust offered to protect
truly sensitive information such as medical records, full SSNs, dates of birth, names of minors,
and financial account numbersi.e., the claimant information this Court ruled should be
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protected in the public mesothelioma estimation record. See Motion 18; Cassada Decl. 9. But
the Manville Trust and Committee insist on complete confidentiality, including for claimants
identities, their occupations and industries, their histories of exposure to asbestos, the fact they
filed a claim against the Manville Trust, and many other non-sensitive facts.
A. The Manville Trust and Committee Have Not Alleged, Much Less Demonstrated, Good
Cause for Keeping Non-Sensitive Data Confidential
The blanket restrictions sought by the Committee and Manville Trust would violate the
law. The default rule in federal court is that evidence obtained in discovery may be disseminated
freely, with no restrictions on how the requesting party uses it. See San Jose Mercury News, Inc.
v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999) (It is well-established that the fruits of
pretrial discovery are, in the absence of a court order to the contrary, presumptively public.);
Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (Absent a protective
order, parties to a law suit may disseminate materials obtained during discovery as they see fit.).
To impose confidentiality or use restrictions, the producing party must show good
cause under Federal Rule of Civil Procedure 26(c).8 A party asserting good cause bears the
burden, for each particular document it seeks to protect, of showing that specific prejudice or
harm will result if no protective order is granted. Foltz v. State Farm Mut. Auto. Ins. Co., 331
F.3d 1122, 1130 (9th Cir. 2003); Brittain v. Stroh Brewery, Co., 136 F.R.D. 408, 412 (M.D.N.C.
1991) (The party must make a particular request and a specific demonstration of facts in support
of the request as opposed to conclusory or speculative statements about the need for a protective
order and the harm which would be suffered without one.); U.S. ex rel. Davis v. Prince, 753 F.
Supp. 2d 561, 565 (E.D. Va. 2010) (The party seeking a protective order has the burden of

The same good cause standard applies to third parties subject to subpoena. See In re Roman Catholic
Archbishop of Portland in Or., 661 F.3d 417, 426 (9th Cir. 2011).

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establishing good cause by demonstrating that specific prejudice or harm will result if no
protective order is granted) (punctuation and citation omitted); 8A Wright & Miller, Federal
Practice and Procedure 2043 (3d ed.) (party requesting confidentiality must also show good
cause for restricting dissemination on the ground that it would be harmed by its disclosure. As
with any protective-order motion, the showing should be made with appropriate specifics.).
The good cause requirement is rigorous. Broad allegations of harm, unsubstantiated
by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test. . . . Moreover,
the harm must be significant, not a mere trifle. Cipollone v. Liggett Grp., Inc., 785 F.2d 1108,
1121 (3d Cir. 1986); see also Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994).
The burden of proving specific harm rests with the producing party, and typically requires an
affidavit. See Brittain, 136 F.R.D. at 412-13 (Such demonstrations are preferably made by
affidavits from knowledgeable persons . . . .). Under these standards, courts routinely order
parties to keep confidential truly sensitive information such as medical records and trade secrets.
See, e.g., Foltz, 331 F.3d at 1131, 1137. But courts refuse to apply blanket protections that
stretch further than absolutely necessary to protect sensitive information. See Brittain, 136
F.R.D. at 412 (good cause requirement furthers the goal that the Court only grant as narrow a
protective order as is necessary under the facts); Foltz, 331 F.3d at 1131 (refusing to apply
blanket protection simply because some medical records may be present).
Far from making a specific and particularized showing of harm using affidavit evidence,
the Committee and Manville Trust do not even offer arguments for why information other than
SSNs, medical records, and financial account numbers should be kept confidential. The
examples the Manville Trust gives of sensitive information are all categories that Debtors have
already agreed to protect: medical records . . . the claimants history of drug and alcohol abuse,

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HIV status, sexual or emotional dysfunction, or other highly private and confidential health
information, descriptions of claimants children and other dependents mental and/or physical
disabilities or drug addictions, and Social Security numbers and dates of birth. Manville
Objection 11, 12.9
The confidentiality sought by the Manville Trust and Committee would extend far
beyond these truly sensitive facts, to cover information where the good cause standard clearly
cannot be met. For example, it would include many non-sensitive facts about individuals who
sued Garlocktheir occupational histories, their exposures to asbestos, their claims against the
Manville Trust, and even their very identities, despite that fact that those claimants have already
sued Garlock in public courts and have been publicly identified in this case in the Garlock
Analytical Database and Garrison database that are part of the estimation record, as well as
Debtors schedules. The Committee and Manville Trusts approach would even protect
information about the claimants tort suit, a fact that is already a matter of public record in
another court.
The Manville Trust and Committee offer no argument for why any of this information
meets the good cause standard, instead offering only vague and non-specific concerns about
confidentiality. See Manville Objection 19 (alleging that subpoenas seeking data for multiple
claimants implicate confidentiality concerns that subpoenas in individual actions do not); id.
20 (vague statement about the highly sensitive nature of the claimant data); id. 55 (alleging
without citation a claimant expectation that personal information they submit to the Manville
Trust will be treated in a confidential manner). These vague allegations amount to nothing more

The Manville Objection also mentions financial information, Manville Objection 5, but Debtors are
not aware that their request seeks such information. Depending on the nature of the financial information,
it could be legitimately protected. This Court has already recognized that full financial account numbers
should be protected. See infra.

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than conclusory or speculative statements about the need for a protective order, Brittain, 136
F.R.D. at 412, and do not come close to carrying the Manville Trusts burden of demonstrating
that specific prejudice or harm will result if no protective order is granted. Foltz, 331 F.3d at
1130. It would also be inappropriate to apply a protective order to all of the data, merely because
some of it (SSNs, medical records) is sensitiveespecially because Debtors agreed in their
Motion that the truly sensitive data should be subject to protective order. See id. at 1131.
Tellingly, when Debtors counsel asked counsel for the Manville Trust why non-sensitive
claimant information should be kept confidential, he received no responseonly vague
allegations of sensitivity. See Cassada Decl. 13 (Other than medical records (which the
Debtors have agreed to protect from public disclosure), Mr. Rubinstein did not during the course
of our discussions identify a single additional fact or piece of information that would be
private, but simply said his position was Manville Trust policy.). Debtors counsel also
pointed out that the Manville Trust provides precisely this information to co-defendants who
subpoena it, without taking the position that it is confidential and without demanding a protective
order. Id. 12. The Manville Trusts counsel responded that the Manville Trust reserved its right
to treat Garlock differently. Id.10
The Committee and Manville Trust also argue that the Manville Trust has an absolute
right to designate discovery as confidential under the Stipulated Protective Order (SPO),
without having to demonstrate good cause. Manville Objection 54; Committee Objection at
7-8. But a party has no such unilateral right. Stipulated protective orders are entered as a matter
10

The Manville Trust also relies on a licensing agreement that it requires when it provides extracts of its
data to third parties outside of litigation. See Manville Objection 22-25, 55. The Manville Trust is free
to insist on any conditions it likes outside of litigation, but within litigation, it must meet the good cause
standard, which it has failed to do with respect to non-sensitive data such as claimant identities, exposure,
and occupational histories. Apparently recognizing this, the Manville Trust produces data to codefendants pursuant to subpoena without insisting on any confidentiality restrictions at all. Cassada Decl.
12.

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of course, to streamline discovery and avoid repetitive good cause motions to the court by
according temporary protection to documents designated as confidential. See, e.g., In re Roman
Catholic Archbishop, 661 F.3d at 424 (stipulated protective orders often entered without good
cause showing to streamline discovery). But a party must exercise good faith in marking
documents as confidential, and even then, their designation can be challenged at any time, which
forces the producing party to demonstrate that the good cause standard is met. See id. at 424
(under stipulated protective order, if designation is challenged, the party opposing disclosure
has the burden of establishing that there is good cause to continue the protection of the discovery
material) (quotation and punctuation omitted); Foltz, 331 F.3d at 1131 (producing party had
burden of showing good cause with respect to each document subject to blanket protective
order when challenged). Here, to the extent the Manville Trust is attempting to avail itself of the
SPO, Debtors are challenging the designation of these documents as confidential, because neither
the Trust nor the Committee has any basis to designate non-sensitive claimant information as
such.
Finally, given that the Manville Trust cannot meet the good cause standard to require a
protective order limiting disclosure of non-sensitive facts about claimants, its request for
anonymized dataan even more severe restrictionclearly cannot be sustained. As described
above, Debtors explained to the Trusts counsel that anonymizing the data would render it
useless, and this measure is also precluded by the law of this case, where a request to anonymize
Trust data was rejected. See supra.
B. The Manville Trust and Committees Insistence that Debtors Not Use Claimant
Information in Court Violates The Law of This Case
But the Manville Trust and Committee would go even further than a blanket protective
order applicable to all claimant information, sensitive and non-sensitive alike. They would insist
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that Debtors redact claimants names before using the produced evidence in Court and not
disclos[e] such information in any court filing, which apparently would prevent even this
Court from seeing the evidence. Manville Objection 35, 57(c), Committee Objection at 2
(Debtors have wrongly insisted that they would be entitled to make public use of any such
information . . .); id. at 11 (claiming that Debtors should be required to anonymize data
introduced into evidence).
The request violates the law of this case. As the Court is aware, prior to the estimation
trial, the Committee and certain asbestos plaintiffs firms petitioned the Court (over Debtors
objection) to restrict the use and prohibit the disclosure of all information pertaining to
claimants, including their identities, their exposure histories, and their claims histories. These
orders prohibited Debtors from sharing evidence they discovered with third parties or disclosing
the identities of asbestos claimants (or facts about their claims) in open court (or outside of
court). As a result, live testimony at the mesothelioma estimation trial about specific claimants
was offered in closed court sessions, and transcripts and documents offered into evidence or filed
with the Court were placed under seal. Cassada Decl. 10.
Members of the public objected to the Courts orders and appealed. The District Court
reversed and remanded. Legal Newsline v. Garlock Sealing Technologies LLC, 518 B.R. 358,
367 (W.D.N.C. 2014). On remand, this Court issued a ruling that defines precisely what kinds of
information in this case can be protected from disclosure in open court and what kinds should
not.
Specifically, on October 31, 2014, this Court ruled that there was no privacy right or
other basis for protecting claimant information from the public, with the exception of (a) SSNs
(except last four digits), (b) date of birth (except year), (c) names of identifiable minors (except

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for their initials), (d) financial account numbers (except last four digits), and (e) medical
information (except claimed disease). The Court found that the appropriate privacy interests of
the individuals involved here are protected by those redactions, and further found that [a]s to
the names of adult claimants, I cant find any extraordinary circumstances that would require
anonymity, as [a]ll of the adult claimants are named in state court complaints, I think also in
the schedules in this proceeding. 10/16/14 Tr. 52-54. As a result, the Court unsealed all of the
claimant information that the Manville Trust and Committee now seek to protect, including
evidence pertaining to claimants occupational and exposure histories, the claims they had
asserted against Trusts and other entities, and the settlements claimants had received from Trusts
and other entities. See Order on Motions to Seal Materials in Record of Estimation Proceeding
and Protocol for Redaction of Record (Docket No. 4195) (the Public Access Order).11
The restriction on Debtors sought by the Manville Trust and Committee would directly
violate this Courts ruling that claimant information used in Court should not be redacted, except
for the limited facts that truly implicate privacy concerns. Indeed, it would go even further than
the previous overruled orders did, by apparently precluding Debtors from showing this Court the
evidence. See Manville Objection 57(c) (seeking to preclude Debtors from using claimant
names in any court filing).
It is especially troubling that the Committee continues to press this issue, given that
litigation to establish these principles cost the estates over $1.4 million, with Caplin & Drysdale
billing fees of over $1.2 million. See Declaration of Satyra Riggins (attached as Ex. C). The
Committee has no good faith basis to continue raising obstacles to Debtors right to introduce

11

The Manville Trust points to a press account that used settlement information in the estimation record
as a reason why the Court should enter a protective order here, Manville Objection 53 n.6, but fails to
recognize that the story was a direct consequence of this Courts ruling refusing to keep settlement
amounts confidential, and was entirely proper reliance on public judicial records.

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non-sensitive information in open court. Indeed, when the Committee last fall was forced to
explain the basis for the blanket confidentiality protection it had long advocated for years before
this Court, it was unable even to file a motion seeking protection for more than what the Court
ultimately ordered and Debtors have offered the Manville Trust here.12
In addition, the Courts Public Access Order further demonstrates that the Manville Trust
and Committee cannot meet the good cause standard with respect to non-sensitive claimant
information. The Court was applying different legal standards in the access litigationthe First
Amendment and common law rights of access to judicial records, rather than the good cause
standard applicable to protective orders. But at the end of the day, the Court found that claimants
who sued Debtors had no privacy interests in their identities or other facts about their claims,
apart from clearly protectable information such as SSNs, financial account numbers, and medical
records. For the same reason, the Committee and Manville Trust cannot carry their burden to
show good cause to justify a protective order in discovery.
Notably, the Courts Public Access Order also limits the relevance of the protective
orders upon which the Manville Trust and Committee heavily rely, which were entered by this
Court during discovery before the Court set the boundaries of protectable information in its
Public Access Order. See Manville Objection 54 & n.8; Committee Objection at 2, 8-9. The
provisions in those orders requiring all claimant information to be introduced under seal
including non-sensitive information such as claimant identities and exposureclearly did not
survive the later rulings by the District Court and this Court in the public access litigation. Nor
12

The Committee argues that the Subpoena would lead to undue cost because Debtors would be
compelled to redact voluminous medical records at great expense in order to introduce them into
evidence. Committee Objection at 6-7. This is not true because any medical records Debtors offer at the
confirmation hearing could be introduced under seal instead. In fact, medical recordswhich are easily
identifiabledid not form a significant part of the cost of redacting the mesothelioma estimation record,
which instead came primarily from reviewing non-medical documents for social security numbers and
medical information.

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do those prior orders assist the Manville Trust in making a good cause showing for nonsensitive claimant information. Those protective orders were blanket orders, and no party
demonstrated good cause for protecting particular kinds of information. The Courts Public
Access Order demonstrates that it is not possible for any party to meet the good cause standard
with respect to non-sensitive claimant information.13

13

Debtors are also concerned that a blanket protective order could invite costly collateral litigation by
third parties seeking to eliminate the restrictions. Third parties have a right to intervene and challenge
protective orders that interfere with parties right to disseminate information obtained in discovery. See
Pansy, 23 F.3d at 777 (We have routinely found, as have other courts, that third parties have standing to
challenge protective orders and confidentiality orders in an effort to obtain access to information or
judicial proceedings.). Debtors seek to avoid any further collateral litigation, given that public access
litigation between September 2013 and April 2015 led to professional fees exceeding $1.4 million. See
Ex. C.

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This 11th day of June, 2015.


Respectfully submitted,

/s/ Garland S. Cassada


Garland S. Cassada
N.C. Bar No. 12352
Jonathan C. Krisko
N.C. Bar No. 28625
Richard C. Worf, Jr.
N.C. Bar No. 37143
ROBINSON BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Telephone: (704) 377-2536
Facsimile: (704) 378-4000
gcassada@rbh.com
jkrisko@rbh.com
rworf@rbh.com
Special Corporate and Litigation Counsel to the
Debtors Garlock Sealing Technologies LLC,
Garrison Litigation Management Group, Ltd., and
The Anchor Packing Company

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IN THE UNITED STATES BANKRUPTCY COURT


FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

IN RE:

Chapter 11

GARLOCK SEALING
TECHNOLOGIES LLC, et al.,1

Case No. 10-BK-31607

Debtors.

(Jointly Administered)

DECLARATION OF CHARLES E. BATES, PH.D.


I, CHARLES E. BATES, declare as follows:
(1)

I am Chairman of Bates White, LLC, which is an economic consulting firm with its primary
office located in Washington, DC. The Court approved the employment of Bates White as
Asbestos Claims Consultant for the Debtors on July 21, 2010. I have been asked by
Robinson, Bradshaw & Hinson, P.A. (RBH) on behalf of the Debtors to submit the present
declaration (the Declaration) to address some of the objections stated by the Manville
Personal Injury Settlement Trust (Manville Trust) in its Objections2 and some issues
raised by the Asbestos Claimants Committee (ACC) in its Response3 in regard to the
Debtors Motion for Leave to Serve Subpoena on Manville Trust (Dkt. No. 4599) (the
Motion) in connection with the estimation of Garlocks non-mesothelioma asbestos
liability and the feasibility of the Debtors Second Amended Plan of Reorganization (the
Plan). I have personal knowledge of the facts set forth in this Declaration and, if called as
a witness, could and would testify competently to such facts under oath.
1

The Debtors are Anchor Packing Company, Garlock Sealing Technologies LLC, and Garrison Litigation Management
Group Ltd.
See Objection of Non-Party Manville Personal Injury Settlement Trust to the Debtors Motion for Leave to Serve
Subpoena, Dkt. No. 4638.
See Response and Limited Objection of the Official Committee of Asbestos Personal Injury Claimants to Debtors
Motion for Leave to Serve Subpoena on Manville Trust, Dkt. No. 4644.

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(2)

I received my Ph.D. and M.A. in economics from the University of Rochester and my B.A. in
economics and mathematics with high honors from the University of California, San Diego.
I have taught courses in advanced statistical economic analysis and trade theory while on the
faculty of Johns Hopkins University and have published papers on advanced topics in
estimation theory in peer-reviewed journals. I specialize in the application of statistics and
computer modeling to economic and financial issues. I have 20 years of experience in a wide
range of litigation and commercial consulting areas. Much of my work has involved the
design and implementation of statistical and computer modeling methods to analyze large
quantities of data and to estimate the value of product liability claims against companies.
Attached as Exhibit A is my curriculum vitae.

(3)

In this matter, I am the asbestos claims estimation expert for Debtors and testified regarding
Garlocks mesothelioma liabilities in the Estimation Trial in front of the Hon. Judge George
Hodges. Further, I am the expert for Debtors who will estimate Garlocks non-mesothelioma
liability and will assess the Plans feasibility in the upcoming Confirmation Hearing in front
of this Court.

(4)

In this Declaration, I cover the following four topics:

I explain the usefulness of the data requested from the Manville Trust both for
estimating Garlocks non-mesothelioma asbestos liability and for its usefulness in
assessing the Plans feasibility.

I respond to the Manville Trust and the ACCs incorrect assertion that a sample of
claimants would be preferable to receiving information on all claimants identified in
the Motion.

I respond to the Manville Trusts concerns regarding the matching protocol proposed
by Debtors for identifying the claimants for which the Motion seeks information.

I respond to the ACCs incorrect assertion that using and analyzing the data requested
from the Manville Trust would be burdensome and impractical.

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The usefulness of the data requested from the Manville Trust both for estimating
Garlocks non-mesothelioma asbestos liability and in assessing the Plans feasibility
(5)

Contrary to the Manville Trust and the ACCs assertions, the methodology that I employed in
the estimation of mesothelioma asbestos liability and the one that I will employ for the
estimation of non-mesothelioma asbestos liability and Plan feasibility analysis relies on
individual-level data from claimants that is analyzed by using established econometric
statistical methods to reach conclusions about aggregate estimates. Therefore, the claimantand claim-level information requested by Debtors in the Motion will be very useful for nonmesothelioma asbestos liability estimation and for Plan feasibility analysis.

(6)

All data categories requested by Debtors in the Motion would provide valuable information
about Garlocks non-mesothelioma claimants that is simply not available in the Garlock
Analytical Database or in the Garrison database.4 Most of the information requested in the
Motion was requested and granted in the Personal Injury Questionnaire (PIQ) issued to
pending mesothelioma claimants earlier in this case. For non-mesothelioma claimants, there
is no equivalent PIQ being requested due to time and cost constraints. Additionally, the
Debtors have no information about claimants who file a Proof of Claim form (POC) before
the October 6, 2015 bar date and who are not listed as having a pending claim in the Garlock
Analytical Database (the Additional Pending Claims); such claimants will be considered in
analyses for the Confirmation Hearing, and data beyond what they will provide in the POC
will be useful, given that no PIQ will be requested from this group, either. Therefore, a timeand cost-effective substitute to requesting a PIQ from all such claimants is requesting such
information from the Manville Trust, which already collects the data in its electronic database
or possesses documents submitted by claimants that contain such information.

(7)

The information sought in the Motion can be classified into five categories: 1) Claimant
identifying information; 2) Disease and other alleged injury-related information; 3) Exposure
information; 4) Tort claimant information; and 5) Manville Trust claim information. Below I
describe the use of these data for the analyses required for the Confirmation Hearing:
1.

Claimant identifying information. As explained below, information regarding the


alleged disease, exposure histories, and claim information are important inputs in
the analyses to be performed. The claimant identifying information will be used to
match the Manville Trust data to specific claimants in the Garlock Analytical
Database or among the Additional Pending Claims. If the information provided
does not include identifying information, such a matching exercise would not be

See Dr. Jorge Gallardo-Garcias Expert Report on this matter (Estimation Trial Exhibit GST-8004) for a detailed
description of the construction and sources comprising the Garlock Analytical Database and for a description of the
Garrison database.

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possible. Because one of the goals of the data request to the Manville Trust is to
supplement the existing records in the Garlock Analytical Database and to provide
unavailable information regarding the Additional Pending Claims, without claimant
identifying information the Manville Trust data from the other categories requested
would not serve that purpose. This lack of claimant-by-claimant identification
would hinder the usefulness of such Manville Trust data. Therefore, complete
claimant identifying information is essential for the usefulness of the requested
data, so an anonymity protocol as suggested by the Manville Trust would
undermine the purpose of the data request.
2.

Disease and other alleged injury-related information. The Garlock Analytical


Database only records a disease field that does not provide information in enough
detail to be able to classify the pending records in that database into the disease
categories contemplated by the Claims Resolution Procedures (CRP) that will
govern the Settlement Facility under the Plan. The Garlock Analytical Database
provides information to consistently classify the alleged diseases into only five
categories: mesothelioma, lung cancer, other cancer, non-malignant, and unknown
disease. In turn, the POC will provide disease category information as defined in
the Plans CRP but will not include additional information relevant to assessment
under the CRP, such as diagnosing doctor, tests, etc.
Both for liability estimation and for Plan feasibility analysis, additional diagnosis
information is required. Lung cancers, other cancers, and non-malignant cases need
to be classified based on their diagnosis (both in terms of the type of disease and the
reliability of the diagnosis), smoking histories, and diagnostic tests and exams as
stated in the CRP. Further, the Garlock Analytical Database shows almost 21,000
pending records with no disease information at all (unknown disease). The
Manville Trust database would have such information if the corresponding
claimants filed a claim against both Garlock and the Manville Trust.
Detailed disease information is present and readily available, in part, in the
Manville Trust electronic database and, in part, in the medical records attached by
claimants to their Manville Trust claims. The detailed classification of claimants
into disease categories is fundamental in order to estimate the number and amount
of non-mesothelioma claims given that the liability determination and potential
compensatory award depend on the injured partys disease. Additionally, this
detailed disease classification will allow estimating the number of claims to be filed
with the Settlement Facility and that potentially would qualify for payment under
the CRP.

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Exposure information. As in the case of mesothelioma claims, job and exposure


histories are very important to determine the likely contact of claimants with
Garlock asbestos-containing products and alternative sources of exposure to
asbestos, which are directly relevant in terms of liability estimation and are also
among the information requested by the Plans CRP for settlement determination.5
The Garlock Analytical Database has almost no data on occupations and industries
for pending non-mesothelioma claims records, and, when available, the information
is sparse. For the Additional Pending Claims, Debtors will have no exposure and
job history information other than the assertion of Garlock product contact provided
in the POC. The Manville Trust database includes useful occupation and industry
information for most claims captured for the purposes of the Manville Trust claim.
That data can be further supplemented with the exposure documents submitted by
claimants as attachments to their Manville Trust claims.
Therefore, the job and exposure information from the Manville Trust is a readily
available source of information that can be of great aid in the classification of
Garlock non-mesothelioma pending claims and Additional Pending Claims into
Contact Groups both for liability estimation and for Plan feasibility analysis.

4.

Tort claimant information. The information requested in the Motion from the
Manville Trust in this regardinformation that includes data fields such as filing
date, jurisdiction, and representing law firmare data fields that Bates White uses
as inputs to its claim/claimant matching algorithms and are also used to confirm
matches across claims databases. In this case, the information from the Manville
Trust will be used in two ways: 1) as an input in the matching between the Manville
Trust database and both the Garlock Analytical Database and the Additional
Pending Claims to aid in the identification and eventual elimination of false
positives (see below for further discussion); and 2) like the other data categories
requested by the Motion, to supplement the Garlock Analytical Database when
some of that information is missing and to provide otherwise unavailable
information for the Additional Pending Claims.

5.

Manville Trust claim information. Information regarding the non-mesothelioma


claimants Manville Trust claim is useful for liability estimation for two main
reasons: 1) filing date, fact of settlement, settlement/payment date, and other status
fields are used in analyzing the timing of filing claims against Garlock versus the
progression of the Manville Trust claim; and 2) payments from tort parties and

In the estimation of Garlocks mesothelioma liability, Mr. John Henshaw (the Industrial Hygiene expert for Debtors)
established a classification of industries and occupations into five Contact Groups that were characterized by the
frequency, regularity, and proximity of contact with asbestos-containing gaskets and packing.

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trusts are used to estimate the amount of offsets that would apply to a potential
plaintiff verdict in joint-and-several and hybrid jurisdictions.6
(8)

In summary, each of the data categories requested by Debtors in the Motion is an important
input for the estimation of Garlocks non-mesothelioma liability and for the Plan feasibility
assessment that I will perform for the Confirmation Hearing. Currently, there are no
alternative sources of discovery or publicly available information that would provide these
data in a more time- and cost-effective manner than having the Manville Trust produce them
to Debtors.

The Manville Trust and the ACC are incorrect in asserting that a sample of claimants
would be preferable to receiving information on all claimants identified in the Motion
(9)

Both the Manville Trust and the ACC erroneously assert in their objections that providing
information for the claimants identified in the Motion is excessive and that providing the
information for a limited sample of such claimants would be less burdensome and would
suffice for the Confirmation Hearing analyses. This is simply not true.

(10)

First, the Manville Trust maintains its records in electronic form readily available for
electronic transfer, so the burden of providing the data and documents for the claimants
identified in the Motion will be essentially the same as the burden of providing the same
information for a subset of those claimants.7 When the data and documents are stored in
electronic form in an organized manner, querying a smaller or a larger subset of the records
only changes the computer processing time (likely only by minutes at the most) but not the
effort that an individual has to put into the task. Therefore, the Manville Trust and the ACCs
assertions that providing data on a sample of claims would be less burdensome are simply
not true.

(11)

Second, although I expect that the pending non-mesothelioma records and the Additional
Pending Claims will significantly overlap with the Manville Trust claims, the claimants who
would overlap are not currently known and cannot be identified without actually performing
a full matching exercise between the Garlock records and the Manville Trust database.
Given an unknown non-match rate, drawing a statistical representative sample would require
a large sample that, as I explained before, would require the same amount of effort as
producing information for all claims identified in the Motion.
6

As I covered in my Expert Report, section V.3.7 (Estimation Trial Exhibit GST-0996), hybrid jurisdictions are those that
apply a combination of several and joint-and-several liability sharing rules when apportioning compensatory damages.
See the Declaration of Garland S. Cassada.

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(12)

Third, although statistical sampling is useful when the cost of gathering the information for
the whole population is significantly higher than the cost of gathering information for a
reduced group, drawing inferences about the whole population from a sample is less precise
than actually observing a given characteristic from the population itself. Because a sample
(even if representative) is not the same as the population, all analyses have to be modified to
account for the statistical uncertainty that a sample introduces. This increases the technical
difficulty of the analysis and increases the amount of work that has to be performed to test
and ensure that the statistics being used to draw conclusions about the population are truly
representative of such population. Therefore, any time that a census is feasible in terms of
time and cost, it is preferable to sampling.

(13)

Fourth, some of the Manville Trusts assertions regarding sampling and statistical analysis
are incorrect or misleading. The Manville Trust asserts that a sample of 10% of the
population would be sufficient for the analyses to be performed. This is simply incorrect. A
basic statistical concept in sampling is that the size of a representative sample does not
depend on the size of the population but rather on the variation of the feature in the
population that is going to be analyzed and about which one will draw statistical inferences.
Therefore, the sample size cannot be defined as 10% of the population without knowing
which features in the data are going to be analyzed or the analytical methodology that is
going to be applied. In this sense, the Manville Trust shows a complete lack of
understanding of the most basic statistical concepts.

(14)

A misleading assertion by the Manville Trust is that, because some of the analyses used in the
estimation of Garlocks liability for mesothelioma claims were based on sampling, it must be
that a sample for requesting data from the Manville Trust will suffice for analysis. In those
cases, samples were used for a variety of reasons (including considerations of cost) and were
feasible because the PIQ had already provided broad data regarding pending mesothelioma
claimants that could guide the sampling exercise. These factors are not present here because,
as I explained above, the Manville Trust maintains its records in electronic form so no
information or documents need to be gathered by the Manville Trust to respond to the
Motions request; further, there has been no PIQ that could guide the construction of an
appropriate sample.

(15)

In summary, although sampling is a useful tool when the time and cost of gathering data is
significant, it is always preferable in terms of statistical precision and technical difficulty to
have access to data from the whole population. In this case, because the Manville Trust has
all data requested in the Motion in an organized electronic form, a sample would not be better
for the Confirmation Hearing analyses than having access to all data requested by Debtors.

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Response to the Manville Trusts concerns regarding the matching protocol proposed
by Debtors
(16)

The Motion requests Manville Trust data for all claimants in the Manville Trust records who
match the first and last name of one of the pending non-mesothelioma records or who will
match a claimant with an Additional Pending Claim. Although this process will generate
matches to Manville Trust claimants who are not Garlock claimants (referred to as false
positives by the Manville Trust) in an initial step, Bates White will analyze the data received
from the Manville Trust to confirm or reject matches by using Bates Whites matching
algorithms, which utilize all available identifying claimant and claim information to evaluate
a match.

(17)

The broad first matching step based on first and last name is performed in order to avoid
false negatives and ensure that Garlock receives data on as many Garlock claimants as
possible at the end of the process. When matching two different data sets (especially when
the data sets are large, as in this case) the more fields one uses in a strict comparison across
databases, the more likely it is that records belonging to the same individual would not be
matched due to differences in the data fields used in the matching exercise. For instance, one
may think that matching on Social Security Number (SSN) and claimant name would be
sufficient to efficiently and uniquely identify claimants across databases. However, in this
case, such a strict match rule would result in far too few matches because the Garlock
Analytical Database does not have SSN information for almost two-thirds of the pending
non-mesothelioma claims. Therefore, if the SSN field were used in matching the Garlock
non-mesothelioma claims to the Manville Trust, only one-third of the pending nonmesothelioma claims would have a chance of matching. Such a matching exercise would
introduce both known and unknown biases into the data provided by the Manville Trust for
the matched records because, in my experience, the fact that a data field is missing for a
record in an asbestos database is not random.

(18)

In summary, the first matching step to be performed by the Manville Trust on first and last
name would ensure the integrity of the data provided by the Manville Trust, whereas the
second matching step to be performed by Bates White will endeavor to minimize the number
of false positives that remain in the data for Confirmation Hearing analyses.

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Declaration of Charles E. Bates

The ACC is incorrect in asserting that using and analyzing the data requested from the
Manville Trust would be burdensome and impractical
(19)

The ACC misleadingly argues that using and analyzing the data requested from the Manville
Trust would come at a cost and effort multiples of the one incurred in processing and
analyzing the mesothelioma PIQ information. This is false and highly misleading. The cost
of processing and analyzing the PIQ data was directly associated with the way in which
claimants and their representing law firms submitted their information in response to the
questionnaire.8 Claimants did not respond to the PIQ questions in the electronic format
provided but rather submitted thousands of paper documents and handwritten PIQ formats
that needed to be scanned, classified, reviewed and analyzed for data extraction. With
respect to the Motion, that is not an issue because the Manville Trust already has an
electronic database with a large portion of the data requested already captured, and it also has
an electronic document repository where the documents submitted by claimants are already
linked to claimants and classified. Given that all data and documents would be provided by
the Manville Trust in a clean and organized manner, the cost of analyzing such information
would be significantly less than the one incurred in using the PIQ information, not multiples
of it. Therefore, the comparison made by the ACC regarding the cost of analysis between the
PIQ and the Manville Trust request is simply inappropriate and false.

(20)

In the event that the Court seeks a more detailed understanding of my opinions, I am
available to appear before the Court.
I declare under penalty of perjury that to the best of my knowledge the foregoing is true and
correct.
Dated on this 11th day of June, 2015.

_____________________________________
Charles E. Bates, Ph.D.

See Dr. Gallardo-Garcias Expert Report, section II.3 (Estimation Trial Exhibit GST-8004) for a detailed description of
the information submitted by claimants in response to the mesothelioma PIQ and the steps performed for processing the
data for analysis.

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EXHIBIT A

Desc Ex.

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1300 Eye Street NW, Suite 600, Washington, DC 20005 main 202.408.6110 fax 202.408.7838

CHARLES E. BATES, PHD


Chairman

AREAS OF EXPERTISE

Asbestos liability estimation


Economic analysis
Econometrics

Statistical analysis
Microsimulation modeling
Database design/applications

SUMMARY OF EXPERIENCE
Charles E. Bates has extensive experience in statistics, econometric modeling, and economic analysis.
He specializes in the application of statistics and computer modeling to economic and financial issues.
Dr. Bates has more than 20 years of experience and provides clients with a wide range of litigation and
commercial consulting services, including expert testimony and guidance on economic and statistical
issues.
Dr. Bates is a recognized expert in asbestos-related matters. He speaks in national and international
forums on the asbestos litigation environment and estimation issues. Dr. Bates is frequently retained to
serve as an expert on such matters in large litigations and has testified before the United States Senate
Judiciary Committee and Federal Bankruptcy Court.

SELECTED ASBESTOS AND PRODUCT LIABILITY EXPERIENCE

Served as an asbestos liability valuation expert on behalf of Garlock Sealing Technologies in its
bankruptcy proceedings. Testified before the US Bankruptcy Court for the Western District of North
Carolina both in preliminary case hearings and at trial.

Served as an asbestos liability valuation expert on behalf of Specialty Products Holding Corp./Bondex
International in its bankruptcy proceedings.

Retained as an asbestos liability valuation expert on behalf of the Official Committee of Unsecured
Creditors of Motors Liquidation Company (f/k/a General Motors Corporation) in its bankruptcy
proceedings.

Authored expert report and provided deposition testimony regarding the value of diacetyl claims on
behalf of the Official Committee of Equity Security Holders in the Chemtura Corporation bankruptcy
proceedings.

Testified in deposition on behalf of the ASARCO Unsecured Creditors Committee in the ASARCO
bankruptcy proceedings regarding the valuation of past and future asbestos-related personal injury
claims.

BATESWHITE.COM

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E.COM
CHARLES E. BATES, PHD
Page 2 of 6

Authored expert report and provided deposition testimony on behalf of the policyholder in the matter
of Imo Industries, Inc. v. Transamerica Corp.

Currently retained as an expert by Fortune 500 companies to produce asbestos expenditure


estimates for annual and quarterly financial statements. Estimations aid clients with Sarbanes-Oxley
compliance.

Currently retained as an expert in asbestos estimation and insurance valuation, for numerous
asbestos litigation matters, on behalf of insurance companies, corporations, and financial creditors
committees of federal bankruptcy proceedings.

Testified before the Senate Judiciary Committee on the economic viability of the Trust Fund proposed
under S.852, the Fairness in Asbestos Injury Resolution (FAIR) Act of 2005. Testimony clarified Bates
White's independent analysis on the estimate of potential entitlements created by the administrative
no-fault trust fund that uses medical criteria for claims-filing eligibility.

Testified in deposition on behalf of Liberty Mutual Insurance Company in the Plibrico bankruptcy
proceedings regarding the valuation of past and future asbestos personal injury claims and exposure
criteria in plan proponents proposed trust distribution procedures.

Testified at deposition on behalf of the joint insurers defense committee to address the fraction of
expenditures associated with the companys asbestos installation operations in Owens Corning v.
Birmingham Fire Insurance Company of Pennsylvania.

Testified in the Babcock & Wilcox bankruptcy confirmation hearing on behalf of the Insurers Joint
Defense Group to address asbestos liability. Developed claims criteria evaluation framework to
assess asbestos liability forecasts and trust distribution procedures.

Testified at deposition on behalf of Sealed Air in the fraudulent conveyance matter regarding the 1998
acquisition of Cryovac from W.R. Grace. Directed estimation of foreseeable asbestos liability for
fraudulent conveyance matter to advise the debtor in the bankruptcy of a defendant with over $200
million in annual asbestos payments. Developed asbestos liability forecasting model and software.
Directed industry research and interviewed industry experts.

Testified at deposition on behalf of Hartford Financial Services Group to address the asbestos liability
of MacArthur Company and Western MacArthur Company. Estimated asbestos liability in the context
of bankruptcy proceedings.

Testified at deposition on behalf of the Center for Claims Resolution in arbitration proceedings of GAF
v. Center for Claims Resolution.

Served as testifying expert on behalf of CSX Transportation on the suitability of asbestos claim
settlements for arbitration proceedings of CSX Transportation, Inc. v. Lloyds, London.

Developed an econometric model of property damage lawsuits for estimating the future liability of a
former asbestos manufacturer arising from the presence of its asbestos products in buildings.

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E.COM
CHARLES E. BATES, PHD
Page 3 of 6

SELECTED LITIGATION AND CONSULTING EXPERIENCE

Testified in United States Tax Court on behalf of the taxpayers on the statistical basis and accuracy of
shrinkage accruals in Kroger v. Commissioner.

Served as consulting expert and performed statistical and quantitative analyses to assess the merits
of a class action alleging payment of fees to mortgage brokers for referral of federally related
mortgage loans.

Testified in United States Tax Court on behalf of the taxpayer analyzing the statistical prediction of
bond ratings using company financial data in Nestl Holdings Inc. v. Commissioner.

Submitted written expert testimony on the statistical and financial analysis of option transactions and
an analysis of alternative stock option hedges in McMahon, Brafman, and Morgan v. Commissioner.

Testified in United States Tax Court on behalf of the taxpayers of IRS experts on the statistical basis
and accuracy of shrinkage accruals in Wal-Mart v. Commissioner.

Served as consulting expert and analyzed the racial composition for a large manufacturing
corporation using EEO data and employed sophisticated statistical analysis and modeling to
determine the validity and strength of an employment discrimination claim.

Testified on behalf of VNC in the arbitration hearing of VNC v. MedPartners.

Provided expert testimony in California Superior Court on the validity of economic comparability
adjustments for pipeline easement rents in Southern Pacific Transportation Corp. v. Santa Fe Pacific
Corp.

Served as statistical expert and developed detailed statistical analysis of customs trade data for use
in criminal transfer-pricing litigation.

Submitted written testimony in United States Tax Court on the beneficial life of company credit card in
a tax matter for a large retailer drawing on the companys point-of-sale data, credit card data, and
customer demographic information.

Developed state-of-the-art models to account for default correlation for underwriting credit insurance;
models became the standard tools for the countrys largest credit insurance firm.

Led a team of economists that provided litigation-consulting services in one of the largest US pricefixing cases. Case involved the development of state-of-the-art economic models, damages
analyses, client presentations, pretrial discovery, industry research, preparation of evidence and
testimony, depositions, and a critique of opposing expert analyses and reports.

For a start-up global telecommunications enterprise, provided consulting services and developed a
comprehensive computer model to evaluate the firms financial plan. Model incorporated marketing,
pricing, and communications traffic in a single modeling framework to facilitate sensitivity analysis by
creditors and to evaluate the risk associated with the strategic business plan.

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E.COM
CHARLES E. BATES, PHD
Page 4 of 6

Served as senior economic advisor on issues of analytical methodology for numerous


pharmacoeconometric and health outcomes research projects. Provided expertise in the development
of decision tools and the creative use of modeling applications for pharmacoeconomics and outcomes
research.

PROFESSIONAL EXPERIENCE
Prior to founding Bates White, Dr. Bates served as a Vice President of A.T. Kearney. Previously, he was
the Partner in Charge of the Economic Analysis group at KPMG. Dr. Bates began his career on the
faculty of Johns Hopkins Universitys Department of Economics, where he taught courses in advanced
statistical economic analysis and trade theory.

EDUCATION

Harvard School of Public Health, Advanced Seminar in Pharmacoeconomics

PhD, Economics, University of Rochester

MA, Economics, University of Rochester

BA, Economics and Mathematics (High Honors), University of California, San Diego

PUBLICATIONS

Bates, Charles E., Charles H. Mullin, and Marc C. Scarcella. The Claiming Game. Mealeys
Litigation Report: Asbestos 25, no. 1 (February 3, 2010).

Bates, Charles E., Charles H. Mullin, and A. Rachel Marquardt. The Naming Game. Mealeys
Litigation Report: Asbestos 24, no. 15 (September 2, 2009).

Bates, Charles E., and Charles H. Mullin. State Of The Asbestos Litigation Environment October
2008. Mealeys Litigation Report: Asbestos 23, no. 19 (November 3, 2008).

Bates, Charles E., and Charles H. Mullin. Show Me The Money. Mealeys Litigation Report:
Asbestos 22, no. 21 (December 3, 2007).

Bates, Charles E., and Charles H. Mullin. The Bankruptcy Wave Of 2000Companies Sunk By An
Ocean Of Recruited Asbestos Claims. Mealeys Litigation Report: Asbestos 21, no. 24 (January 24,
2007).

Bates, Charles E., and Charles H. Mullin. Having Your Tort and Eating It Too? Mealeys Asbestos
Bankruptcy Report 6, no. 4 (November 2006).

Bates, Charles E., and Halbert White. Determination of Estimator with Minimum Asymptotic
Covariance Matrices. Econometric Theory 9 (1993).

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E.COM
CHARLES E. BATES, PHD
Page 5 of 6

Bates, Charles E., and Halbert White. Efficient Instrumental Variables Estimation of Systems of
Implicit Heterogeneous Nonlinear Dynamic Models with Nonspherical Errors. In International
Symposia in Economic Theory and Econometrics, vol. 3, edited by W.A. Barnett, E.R. Berndt and H.
White. New York: Cambridge University Press, 1988.

Bates, Charles E. Instrumental Variables. In The New Palgrave: A Dictionary of Economics, edited
by John Eatwell, Murray Milgate, and Peter Newman. London: Macmillan, 1987.

Bates, Charles E., and Halbert White. An Asymptotic Theory of Consistent Estimation for Parametric
Models. Econometric Theory 1 (1985).

SELECTED SPEAKING ENGAGEMENTS

The Top Emerging Trends in 2015 Asbestos Litigation. Perrin Conferences Cutting-Edge Issues in
Asbestos Litigation Conference, March 1517, 2015.

Asbestos Bankruptcy: A Discussion of the Top Trends in Todays Chapter 11 Cases. Perrin
Conferences Asbestos Litigation Conference: A National Overview & Outlook, Sept. 810, 2014.

An asbestos defendant's legal liabilitythe experience in Garlock's bankruptcy asbestos estimation


trial. Bates White webinar, July 29, 2014.

Concussion Suits Against the NFL, NCAA, and Uniform Equipment Manufacturers. Perrin
Conferences Legal Webinar Series, May 24, 2012.

An Update on US Mass Tort Claims. Perrin Conferences Emerging Risks on Dual Frontiers:
Perspectives on Potential Liabilities in the New Decade, April 1213, 2012, London, United Kingdom.

The Next Chapter of Asbestos Bankruptcy: New Filings, Confirmations, & Estimations. Perrin
Conferences Asbestos Litigation Conference: A National Overview & Outlook, September 1315,
2010, San Francisco, CA.

Trust Online: The Impact of Asbestos Bankruptcies on the Tort System. Perrin Conferences
Asbestos Bankruptcy Conference: Featuring a Judicial Roundtable on Asbestos Compensation, June
21, 2010, Chicago, IL.

Current Litigation Trends that are Impacting Asbestos Plaintiffs, Defendants, & Insurers. Perrin
Conferences Asbestos Litigation Mega Conference, September 1416, 2009, San Francisco, CA.

Verdicts, Settlements, and the Future of Values: Where Are We Heading? A Roundtable
Discussion. HB Litigation Conferences Emerging Trends in Asbestos Litigation, March 911, 2009,
Los Angeles, CA.

Role of Bankruptcy Trusts in Civil Asbestos. Mealeys Emerging Trends in Asbestos Litigation
Conference, March 35, 2008, Los Angeles, CA.

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E.COM
CHARLES E. BATES, PHD
Page 6 of 6

The Intersection between Traditional Litigation & the New Bankruptcy Trusts. Mealeys Asbestos
Bankruptcy Conference, June 78, 2007, Chicago, IL.

ABAs Insurance Coverage Litigation Committee Conference, March 14, 2007, Tucson, AZ.

Mealeys Asbestos Conference: The New Face of Asbestos Litigation, February 89, 2007,
Washington, DC.

Mealeys Asbestos Bankruptcy Conference, December 45, 2006, Philadelphia, PA.

Seeking Solutions to European Asbestos Claiming: Will it be FAIR? Keynote address, Mealeys
International Asbestos Conference, November 12, 2006, London, United Kingdom.

Mealeys Asbestos Bankruptcy Conference, June 9, 2006, Chicago, IL.

Harris Martin Publishing Asbestos Litigation Conference, March 2, 2006, Washington, DC.

Mealeys Wall Street Forum: Asbestos Conference, February 8, 2006, New York, NY.

Mealeys Asbestos Legislation Teleconference, February 7, 2006.

PROFESSIONAL ASSOCIATIONS

National Association of Business Economists

American Economic Association

Econometric Society

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EXHIBIT B

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UNITED STATES BANKRUPTCY COURT


FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Charlotte Division

In re:

Chapter 11

)
)

GARLOCK SEALING TECHNOLOGIES )


LLC, et. al.,
)
Debtors. 1
)

CaseNo. 10-BK-31607
Jointly Administered

___________________________)

Garland S. Cassada, under penalty of perjury, declares:


I.

I am an adult over the age of 18 and I make this declaration based on my personal

knowledge.
2.

I am a shareholder of Robinson Bradshaw & Hinson, P.A. and counsel to the

Debtors in these Chapter 11 cases. I make this declaration in support of Debtors' Motion for
Leave to Serve Subpoena on Manville Trust (Docket No. 4599) (the "Motion") and in response
to the declaration offered by Jason Rubinstein, counsel to the Manville Personal Injury
Settlement Trust (the "Manville Trust"), in opposition to the Motion.
3.

The subpoena Debtors seek authority to serve on the Manville Trust (the

"Subpoena") would seek evidence regarding individuals who have pending non-mesothelioma
asbestos claims against Debtor Garlock Sealing Technologies LLC, or who file a claim in
response to the bar date, for use by Debtors and their experts in estimating the aggregate amount
of allowed non-mesothelioma claims for Plan confirmation purposes and in calculating the
amount of payments to such claimants under the Plan' s Claims Resolution Procedures for
purposes of proving the Plan's feasibility.

The debtors in these jointly administered cases are Garlock Sealing Technologies LLC; Garrison Litigation
Management Group, Ltd.; and The Anchor Packing Company.

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The Subpoena requests basic information similar to what this Court ordered all

pending mesothelioma claimants to provide through questionnaires (including information about


claimants' diagnoses and occupational histories). Debtors added such evidence to the Garlock
Analytical Database during pre-trial discovery for the mesothelioma estimation trial, and the
Court admitted that database into evidence without objection by the Official Committee of
Asbestos Personal Injury Claimants (the "Committee"). In its estimation opinion, the Court held
that each category of evidence was relevant to a reliable estimate of the aggregate amount of
allowed mesothelioma claims under the estimation methodology offered by Debtors' claims
expert (Dr. Charles Bates).
5.

The Manville Trust admits that all of the information requested in the Subpoena is

provided, as a matter of Trust policy, to defendants in asbestos litigation who have been sued by
someone who has asserted a claim against the Manville Trust. See Declaration of Jared S.
Garelick ,-r,-r 9-10.
6.

After filing the Motion, on May 18 and 19, 2015, I conferred with Mr. Rubinstein

to discuss the Manville Trust's concerns about the Motion. My partner, Richard Worf, also
participated in the May 19 conference. In his declaration, Mr. Rubinstein has partially described
discussions we had regarding concerns he raised on behalf of the Manville Trust during these
conferences. Below, I provide my best recollection of additional information about the content of
our discussions.
7.

Mr. Rubinstein took the position that information requested in the Subpoena

should be kept confidential, up to and including claimants' identities. He described a portion of


this discussion in paragraph 8 of his declaration:
[I] expressed concerns about the Subpoena's request for personally identifiable claimant
information unaccompanied by any meaningful confidentiality or use limitations. I
2

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proposed that the Manville Trust make its production pursuant to an anonymizing
protocol that would protect the specific identities and personal information of claimants
while providing Debtors with the information they told this Court they need for purposes
of estimation and litigating Plan feasibility. Alternatively, I proposed that the Manville
Trust produce unredacted data and documents, subject to Debtors' agreement to (i) redact
personally identifiable claimant information from any filings in this Court; (ii) use
Manville Trust data and documents solely for purposes of estimation and determining
Plan feasibility; and (iii) not use such data and documents for any other purpose, in this
or any other action. Debtors' counsel rejected this proposal.
8.

I explained to Mr. Rubinstein that an anonymized production was not feasible, as

Debtors' experts need claimants' identities (including Social Security numbers ("SSNs")) to
match claimants' information with Garlock' s claims database and perform their expert work. I
also told him that the Court had rejected a previous request by Trusts to anonymize data provided
to Debtors in discovery. See Order Granting in Part and Overruling in Part Objections to
Subpoena By Delaware Claims Processing Facility, LLC and Associated Trusts, etc. (Docket No.
2430). Further, I told him that anonymization is unnecessary because all of the individuals for
whom evidence is sought from the Manville Trust have claims against Garlock pending in state
or federal courts. As a result, their identities are already a matter of public record, not only in
complaints filed against Garlock, but in judicial records in these Chapter 11 cases. (Among other
places, the claimants are identified in the Garlock Analytical Database and Garrison claims
database, which were admitted into evidence in the mesothelioma estimation record.)
9.

I also explained to Mr. Rubinstein that this Court had already ruled on what

claimant information can properly be kept confidential when evidence obtained in discovery is
filed or used in Court. I told him that in the mesothelioma estimation proceeding, the Official
Committee of Asbestos Personal Injury Claimants (the "Committee") and certain asbestos
plaintiffs' firms originally convinced the Court (over Debtors' objection) to seal the identities of
asbestos claimants and details regarding their claims (including such claimants' histories of

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exposure to asbestos). As a matter of background for the Court, the sealing orders accomplished
what the Manville Trust effectively desires here: they prohibited Debtors from sharing evidence
they discovered with third parties or disclosing the identities of asbestos claimants in or out of
court; required that live testimony about specific asbestos claims be offered in closed court
sessions; and required that transcripts and documents offered into evidence or filed with the court
disclosing such information be filed under seal.
10.

I described generally to Mr. Rubinstein the history of protracted litigation over

public access to the estimation record and the enormous expense incurred by the estate, although
not in all of the following detail. Numerous members of the public objected to the sealing orders
described above, and appealed to the District Court, which reversed and remanded, instructing
this Court to detennine with respect to each document in the record whether there was any
justification for sealing it under Fourth Circuit legal standards. Legal Newsline v. Garlock

Sealing Technologies LLC, 518 B.R. 358, 367 (W.D.N.C. 2014). On October 31, 2014, this
Court ruled that there was no p1ivacy right or other basis for protecting claims information from
the public, with the exception of(a) SSNs (except last four digits), (b) date ofbirth (except year),
(c) names of identifiable minors (except for their initials), (d) financial account numbers (except
last four digits), and (e) medical information (except claimed disease). The Court unsealed all
other claimant information, including evidence pertaining to claimants' occupational and
exposure histories, the claims they had asserted against Trusts and other entities, and the
settlements claimants had received from Trusts and other entities. See Order on Motions to Seal
Materials in Record of Estimation Proceeding and Protocol for Redaction of Record (Docket No .
4195).

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I reminded Mr. Rubinstein that, in the context of their proposed subpoena to the

Manville Trust, Debtors have offered to keep private the same information this Court held could
be sealed in the foregoing order. I told Mr. Rubinstein that we would not agree to keep other
information confidential, because that would violate the law, as the Court previously concluded.
I told him that, among other things, such restrictions would likely lead to new challenges to
confidentiality by interested members of the public,. I told Mr. Rubinstein that inviting similar
litigation here, when those issues have already been decided, would be pointless.
12.

I further pointed out to Mr. Rubinstein that the Manville Trust's written policy is

to provide precisely the information we request to co-defendants who subpoena it without taking
the position that such information is confidential and without demanding a protective order. I
reminded him that in each such case, the Manville Trust gave notice of subpoenas to claimants
so they could raise any objections they deemed proper, including any arguments that information
requested is subject to privacy interests, and reiterated that we would offer claimants that same
opportunity here. Mr. Rubinstein did not deny that it was the Manville Trust's policy to make the
information Garlock was requesting available to asbestos co-defendants, such as Garlock, upon
notice to affected claimants but he said that the Manville Trust's written policy did not waive its
right to treat Garlock differently .
13.

I tried to understand what specific evidence Mr. Rubinstein believed needed

protection (apart from what Debtors had agreed to protect), what specific privacy rights he
believed needed to be vindicated, and whether there was any provision in the Manville Trust's
procedures that recognized any such privacy interest. Mr. Rubinstein repeatedly used terms such
as "highly sensitive" to describe generally all of the evidence we requested. I pointed out that
evidence related to plaintiffs asserting claims in federal or state courts was not considered

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"private" in any other litigation context (except for full SSNs, medical records and other
information that we had agreed would be protected). I reminded Mr. Rubinstein that the names
of the claimants against Garlock were already public and tried to engage him in discussion about
individual requested items under the Subpoena to understand what he believed was "highly
sensitive." Other than medical records (which the Debtors have agreed to protect from public
disclosure), Mr. Rubinstein did not during the course of our discussions identify a single
additional fact or piece of information that would be "private," but simply said his position was
Manville Trust policy.
14.

In paragraph 4 ofhis declaration, Mr. Rubinstein states:

[I] sought an explanation ofwhy Debtors needed information for more than 91,000
claimants for purposes of estimation and determining Plan feasibility when a random
sample of 10% of that number - i.e., data and documents for 9,100 claimants- would
suffice. Debtors' counsel represented that a sampling approach would be inappropriate
because Debtors' estimation methodology involves the individual assessment of each and
every non-mesothelioma claim.
15.

I explained that, under his estimation methodology as explained in this Court's

estimation opinion, Dr. Bates estimates the value of each open claim in the Garlock Analytical
Database, on a claim-by-claim basis. At confirmation, the data will also permit Dr. Bates to
estimate the settlement amount that would be offered to each claimant under the Plan. I told Mr.
Rubinstein that all pending mesothelioma claimants were required to provide this basic
information in the context of the mesothelioma estimation trial, and the Court did not limit
Debtors' discovery to a sample.
16.

Most important, I explained that sampling the population of Garlock's open non-

mesothelioma claimants was unnecessary because we understood that (1) the burden to the
Manville Trust of producing the data and records sought is not significant because of the high
level of sophistication of the Trust's database, and (2) providing data and records for 91,000

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claims was therefore not materially different in terms ofburden or costs than providing data and
records for 9,100 claims. Mr. Rubinstein stated that he "could not deny" that our understanding
was correct.
17.

In paragraph 5 of his declaration, Mr Rubinstein states:

(I] asked for an explanation of why Debtors were seeking the disclosure of data on the
amounts of each settlement between the Manville Trust and each ofthe 91,000-plus
claimants targeted by the Subpoena, and noted that such data are confidential and that
Debtors are not seeking such data from other asbestos personal injury trusts. Debtors'
counsel insisted, inter alia, that settlement data were relevant to their approach to
estimation and that they would seek information about other trusts' settlements directly
from claimants.
18.

I advised Mr. Rubinstein that settlement amounts paid to pending Garlock

claimants by other parties are relevant to estimation and referred him to the Court's
mesothelioma estimation decision (which contains a discussion of why such amounts are
relevant) for verification. I also explained that we planned to seek amounts of settlements from at
least a sample of claimants from other Trusts and perhaps from some claimants themselves. I
pointed out to Mr. Rubinstein that the Manville Trust' s written policy is to provide settlement
amounts to co-defendants who request that information. Finally, I informed him that the Court
had specifically found that settlement amounts should not be kept confidential when introduced
into evidence in Court and that the Manville Trust's settlement payments to claimants were to
my knowledge not kept confidential in claims they pursued in the tort system.
19.

In paragraph 6 ofhis declaration, Mr. Rubinstein states:

[I] expressed concerns about the Subpoena's instructions, which would require the
production of Manville Trust data for every individual who "matches the first and last
name of a claimant." I noted that, because the Manville Trust database has claims data for
hundreds of thousands of individuals, a matching protocol that relies exclusively on first
name, last name matching, and that omits other identifying criteria, will result in the
production of data for a significant number of individuals who have not asserted claims
against Debtors. Debtors' counsel responded that, at this juncture, they do not have a way
of improving on the Subpoena's matching approach, but insisted that the Manville Trust
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still disclose sensitive data and documents for potentially "false positive" matches.
Debtors' counsel also represented that Debtors would identify and then return or destroy
-and not otherwise disclose- such data and documents after the October 6, 2015 bar
date.
20.

I advised Mr. Rubinstein that we had considered the possibility of false positive

matches, because the Garlock claims database only includes limited information about pending
non-mesothelioma claims for matching purposes (and does not, for example, include SSNs). I
told him that we would make Bates White available in an attempt to minimize the number of
false positive matches. I pointed out that once proofs of claim are filed by October 6, we will
have the information necessary to eliminate all false matches (including SSNs) and that, until
POCs were filed, Debtors and their engaged professionals would keep duplicative records
confidential and then return or destroy-and not otherwise disclose or use in any way-such data
and documents after the October 6, 2015 bar date. Finally, although we did not specifically
discuss it, in the Motion we recognized the opportunity for individual claimants to object to
Debtors receiving their data from the Manville Trust, at which time any claimant can object on
the ground that he or she had never asserted and would not assert a claim against Garlock.
21.

In paragraph 7 of his declaration, Mr. Rubinstein states:

[I] sought an explanation from Debtors' counsel about the reasons for Debtors' request
for claimants' medical records, exposure affidavits, death certificates, and other
documentation maintained by the Manville Trust, and noted that the Manville Trust does
not disclose such records even when it licenses extracts from its database. Debtors'
counsel replied that, for estimation purposes, Debtors primarily seek such records to
confirm claimants' asbestos-related diagnoses. In spite of this, Debtors' counsel rejected
the Manville Trust's proposal that the Manville Trust redact information irrelevant to
claimants' asbestos-related diagnoses from those records. Debtors' counsel asserted that
Debtors' estimation methodology requires quality testing of each individual claim, and
that claimants' medical records could be relevant to other aspects of this bankruptcy case
and to the administration of the post-confirmation Garlock asbestos settlement trust.
22.

I told Mr. Rubinstein that claimants' medical records are relevant to estimation of

non-mesothelioma claims and also to what offers non-mesothelioma claimants would receive

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under the Plan. I reminded him that Debtors will keep all medical information (other than
claimed disease) confidential, as required by this Comi's previous orders. Although I am not
certain we discussed it, information relating to non-asbestos disease is also relevant because it
can demonstrate alternative causation or that a diagnosis of asbestos-related disease is weak or
unsupported, and as a result, it would be inappropriate to redact such infmmation, and would
also lead to unnecessary expense.
23.

I also reminded Mr. Rubinstein once again of the Manville Trust's written policy

to provide all of the information requested (including medical records, exposure affidavits, death
certificates, and other documentation maintained by the Manville Trust) to co-defendants who
request that information, without redaction. Mr. Rubinstein did not deny this, and admitted that
the Manville Trust did not normally take the position that such information is confidential but
instead provided documents to requesting co-defendants, after giving notice to claimants,
without insisting on a protective order or limiting how or when co-defendants can use the
evidence. Mr. Rubinstein again stated that the Manville Trust was not bound to follow this policy
in Garlock's case.
24.

Mr. Rubinstein also referred me to the agreement under which the Manville Trust

licenses its data to third parties outside of litigation (attached as Ex. C to Mr. Garelick's
declaration). I pointed out that the Manville Trust is free to require any conditions it wishes in a
licensing agreement outside of litigation, but that in litigation, the rules of discovery are
different. The Manville Trust appears to recognize this, given that they produce medical records
and the other information requested in the Subpoena to co-defendants in pending litigation,
without objection and without insisting on any confidentiality or use restrictions. He again
reiterated that the Manville Trust reserves its right to treat Garlock differently.

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25.

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I declare that the statements above are true and correct, and I make them under

penalty of perjury on this 8th day of June, 2015 in Charlotte, North Carolina.

10

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EXHIBIT C

Desc Ex.

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Charlotte Division

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IN RE:
Case No. 10-BK-31607
GARLOCK SEALING TECHNOLOGIES
LLC, et al.,
Debtors.1

Chapter 11
Jointly Administered

DECLARATION OF SATYRA L. RIGGINS, CLA REGARDING ANALYSIS OF


PUBLIC ACCESS PROFESSIONAL FEES
Satyra L. Riggins, CLA, under penalty of perjury, declares:
1.

I am an adult over the age of 18 and I make this declaration based on my personal

knowledge.
2.

I am a litigation paralegal at Robinson, Bradshaw & Hinson, P.A. and was asked

to review, compile, and calculate the hours and fees of Robinson, Bradshaw & Hinson, P.A. and
Caplin & Drysdale pertaining to public access issues in this matter.
3.

I reviewed all the invoices of Robinson, Bradshaw & Hinson, P.A. and Caplin &

Drysdale from September 2013 through April 2015, which were the relevant time periods.
4.

I flagged and highlighted any time entries relating to public access issues,

including the Legal Newsline appeal, the disputes regarding access to Rule 2019 statements, and
formulation and implementation of the redaction protocol and procedures.
5. After careful calculation, I determined that Robinson, Bradshaw & Hinson, P.A. billed
778.9 hours with fees of $257,168.00 and Caplin & Drysdale billed 2,802.8 hours with fees of
$1,200,265.15. The total amount of fees was $1,457,433.10. These amounts do not include fees
billed by professionals other than Robinson, Bradshaw & Hinson, P.A. and Caplin & Drysdale.

The Debtors in these jointly administered cases are Garlock Sealing Technologies LLC,
Garrison Litigation Management Group, Ltd. and The Anchor Packing Company

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