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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ______________________________ : KIMBERLEE WILLIAMS, ET AL., : : Plaintiffs, : : vs. : : BASF CATALYSTS, LLC, ET AL., : : Defendants. : ______________________________ : Civ. No. 11-cv-1754 (SRC) (MAS)

____________________________________________________________ BRIEF OF AMICUS CURIAE PUBLIC JUSTICE, P.C. IN SUPPORT OF PLAINTIFFS ON ISSUE OF LITIGATION PRIVILEGE ____________________________________________________________ Esther E. Berezofsky, Esq. WILLIAMS CUKER BEREZOFSKY, LLC Woodland Falls Corporate Center 210 Lake Drive East, Suite 101 Cherry Hill, NJ 08002-1163 Tel: 856-667-0500 Fax: 856-667-5133 Email: eberezofsky@wcblegal.com Counsel for Amicus Curiae Public Justice, P.C. Additional Counsel on the Brief Listed on Signature Page

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CORPORATE DISCLOSURE STATEMENT The following information is provided pursuant to Fed. R. Civ. P. 7.1: The amicus curiae is Public Justice, P.C. This organization does not have any parent corporation and no public company owns ten percent (10%) or more of any stock in it. Public Justice, P.C. is not affiliated with and does not represent the interests of any party in this case. The views and analysis provided in this motion and proposed amicus curiae brief are our own and no party in this case has contributed to or influenced those views in any way.

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TABLE OF CONTENTS Page Corporate Disclosure Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Interest of Amicus Curiae. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Introduction and Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Statement Pertaining to Operative Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Legal Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. The New Jersey Supreme Court’s Decisions Recognizing the Litigation Privilege Demonstrate Its Inapplicability to Acts of Concealment and Destruction of Evidence Aimed at Derailing the Search for Truth.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Decisions From Other Jurisdictions That Share New Jersey’s Concept of the Legitimate Objectives of Litigation Further Undercut Any Application of the Litigation Privilege Here... . . . . . 11

II.

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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TABLE OF AUTHORITIES Page Cases Deatherage v. State Examining Bd. of Psychology, 948 P.2d 828 (Wash. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17 Digiacomo v. Teamsters Pension Trust Fund of Phila. and Vicinity, 420 F.3d 220 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 FMC Technologies, Inc. v. Edwards, 464 F. Supp. 2d 1063 (W.D. Wash. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Green Leaf Nursery v. E.I. DuPont de Nemours and Co., 341 F.3d 1292 (11th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 18 Hawkins v. Harris, 661 A.2d 284 (N.J. 1995). . . . . . . . . . . . . . . . . . . . . . passim In re Vincenti, 458 A.2d 1268 (N.J. 1983). . . . . . . . . . . . . . . . . . . . . . . . . 6, 13 Loigman v. Township Committee of Twp. of Middletown, 889 A.2d 426 (N.J. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 10 Living Designs, Inc. v. E.I. DuPont de Nemours and Co., 431 F.3d 353 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16 Matsuura v. E.I. DuPont de Nemours and Co., 73 P.3d 687 (Haw. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Morton Bldgs., Inc. v. Rezultz, Inc., 603 A.2d 946 (N.J. 1992). . . . . . . . . . . . . 10 Simms v. Seaman, 23 A.3d 1 (Conn. App. Ct. 2011). . . . . . . . . . . . . . . . . . . . 18 Taylor v. McNichols, 243 P.3d 642 (Idaho 2010). . . . . . . . . . . . . . . . . . . . . . 19 Williams v. Kenney, 877 A.2d 277 (N.J. Super. Ct. App. Div. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 iii

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Statutes, Regulations, and Court Rules Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Miscellaneous Paul T. Hayden, Reconsidering the Litigator’s Absolute Privilege to Defame, 54 Ohio St. L.J. 985 (Fall 1993). . . . . . . . . . . . . . . . . . . . . 19 Van V. Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum. L. Rev. 463 (1909). . . . . . . . . . . . . . . . . 9

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INTEREST OF AMICUS CURIAE1 Public Justice, P.C. (“Public Justice”) is a national public interest law firm that specializes in precedent-setting and socially significant civil litigation and is dedicated to obtaining justice for the victims of corporate and governmental abuse. Public Justice prosecutes cases designed to advance consumers’ and victims’ rights, civil rights and civil liberties, occupational and environmental health, employees’ rights, the preservation and improvement of the civil justice system, and the protection of the poor and the powerless. To further its goal of advancing access to justice for persons harmed by corporate misconduct, Public Justice launched its Access to Justice Campaign to expose, challenge, and defeat a wide range of practices used to deny such persons their day in court. Through its Access to Justice Campaign, Public Justice has challenged sweeping assertions of preemption doctrines, abuses of mandatory arbitration clauses, contractual bans on class actions, abuses of the class action device, attempts to impose secrecy on court proceedings, and assaults on the Constitution, all of which are aimed at denying people the opportunity to vindicate their rights by depriving them of a meaningful day in court. This brief was not authored in whole or in part by counsel for any party. No person other than amicus curiae and its counsel made a monetary contribution towards the preparation or submission of this brief.
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Although the instant case raises a host of access to justice issues, Public Justice focuses on just one of these in this Brief of Amicus Curiae. Several of the Defendants argue that Plaintiffs’ and putative class members’ claims alleging that Defendants concealed, destroyed, withheld, and/or lied about the existence of inculpatory evidence in prior personal injury litigation are barred by the “litigation privilege.” This is an alarming proposition. The notion that the law would “privilege” or protect a party’s conduct in concealing or destroying evidence against claims by the very persons whose cases were undermined by such conduct makes a mockery of those individuals’ right to have their day in court. Public Justice submits this Brief in support of Plaintiffs and urges the Court to heed the New Jersey Supreme Court’s admonition in applying the litigation privilege that “[s]eeking truthful, accurate, and non-tainted testimony . . . is the objective of every litigated case,” Loigman v. Township Committee of Twp. of Middletown, 889 A.2d 426, 437 (N.J. 2006), so that conduct-such as that at issue here-aimed at subverting the search for truth and justice has no claim to protection under New Jersey’s litigation privilege.

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INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiffs filed this action on behalf of themselves and other persons similarly situated alleging that all of the Defendants engaged in a practice of defending against asbestos personal injury claims by: gathering all of the evidence of asbestos in its talc, storing or destroying the evidence and thereafter withholding and lying about its existence to mesothelioma, cancer and other victims suffering asbestos induced diseases, their counsel, and those courts presiding over asbestos personal injury claims. Amended Class Action Complaint (“Complaint”) (D.E. 70) ¶1. Plaintiffs assert a number of statutory and common law claims for relief to persons who were harmed by this conduct in the litigation and/or settlement of theirs or their decedents’ personal injury claims. Although all Defendants have moved to dismiss Plaintiffs’ and the putative class’s claims on various grounds, only Defendants BASF Catalysts, LLC (“BASF”) and Cahill Gordon & Reindel LLP (“Cahill”) make the extraordinary assertion that their alleged concealment and destruction of evidence are protected by what is known as the “litigation privilege” under New Jersey law. The New Jersey Supreme Court has held that the litigation privilege applies to: any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some 3

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connection or logical relation to the action. Hawkins v. Harris, 661 A.2d 284, 289 (N.J. 1995) (citation omitted). In addressing the third of these requirements, Defendant BASF contends that its communications and conduct in concealing and destroying evidence were made “to achieve the objects of the litigation, i.e. to obtain in the asbestos cases favorable results, which is the ultimate goal in any litigation.” BASF Brief at 28 (citation omitted). This contention, like the representations challenged in this lawsuit, could not be further from the truth. Ours is not a win-at-all-costs litigation system. In fact, in addressing the litigation privilege’s application to an attorney’s motion to sequester a potential witness in prior litigation, the New Jersey Supreme Court explained that sequestration “serves the salutary purpose of ensuring that a witness who is testifying not influence a witness who is about to testify,” and held that the motion thus helped achieve the objects of the prior litigation because “[s]eeking truthful, accurate, and non-tainted testimony certainly is the objective of every litigated case,” so that the privilege applied. Loigman, 889 A.2d at 437; see also Hawkins, 661 A.2d at 290 (applying litigation privilege to investigator’s statements in pretrial investigation found to be made to achieve the objects of litigation because “[p]retrial investigation is necessary to a thorough and searching investigation of 4

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the truth.”) (citation omitted). By making clear that the search for truth is the “objective of every litigated case,” these decisions eviscerate Defendants’ claim that the litigation privilege protects their concealment and destruction of evidence merely because this conduct was aimed at obtaining a favorable result for them. In fact, these decisions compel just the opposite conclusion: because Defendants’ conduct subverted the search for truth in the prior litigation, Defendants have no claim whatsoever to protection under the litigation privilege. Decisions by courts in other jurisdictions likewise support rejection of Defendants’ litigation privilege defense. Granted, these decisions are not unanimous in how they discuss the privilege’s application to conduct like that at issue here involving concealment and destruction of evidence in products liability litigation. Compare Matsuura v. E.I DuPont de Nemours and Co., 73 P.3d 687, 700 (Haw. 2003) (“Under Hawaii law, a party is not immune from liability for civil damages based upon that party’s fraud engaged in during prior litigation proceedings.”), with Green Leaf Nursery v. E.I. DuPont de Nemours and Co., 341 F.3d 1292, 1302 (11th Cir. 2003) (addressing same acts by same defendant as in Matsuura, but holding that conduct is privileged under Florida law because it had “some relation” to the underlying litigation). However, courts that have rejected 5

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the privilege’s application in cases such as this echo the recognition by New Jersey courts that the object of litigation through the court system is not victory at all costs, but the pursuit of truth and justice. See, e.g., Matsuura, 73 P.3d at 694 (“[C]ourts perform ‘two essential tasks: sifting through conflicting versions of the facts to discover where truth lies, and applying the correct legal principles to the facts as found.’”) (quoting In re Vincenti, 458 A.2d 1268, 1275 (N.J. 1983)) (internal citation omitted). In light of the foregoing, the Court should hold that the litigation privilege does not apply because Defendants’ conduct in concealing and destroying relevant evidence purposefully undermined the core truth-seeking objective of litigation in New Jersey’s courts. STATEMENT PERTAINING TO OPERATIVE FACTS When the Court decides a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “all facts alleged in the complaint and all reasonable inferences that can be drawn from them must be accepted as true.” Digiacomo v. Teamsters Pension Trust Fund of Phila. and Vicinity, 420 F.3d 220, 222 (3d Cir. 2005). Thus, in assessing Defendants’ motions to dismiss based on the litigation privilege, the operative facts are those set forth in Plaintiffs’ Complaint. Although Plaintiffs’ extensive and detailed factual allegations are not 6

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repeated herein, the arguments that follow accept as true the allegations that Defendants BASF and Cahill “devised a strategy to defend [BASF] against asbestos injury claims by gathering all of the evidence of asbestos in its talc, storing or destroying the evidence and thereafter withholding and lying about its existence to mesothelioma, cancer and other victims suffering asbestos induced diseases, their counsel, and those courts presiding over asbestos injury claims.” Complaint ¶1. Indeed, in arguing for dismissal based on the litigation privilege, Defendants do not dispute the truth of the allegations that they engaged in an extensive campaign to conceal and destroy inculpatory evidence in prior personal injury litigation brought by Plaintiffs, putative class members, and their decedents. LEGAL ARGUMENT I. The New Jersey Supreme Court’s Decisions Recognizing the Litigation Privilege Demonstrate Its Inapplicability to Acts of Concealment and Destruction of Evidence Aimed at Derailing the Search for Truth. There are four distinct requirements for the litigation privilege to apply under New Jersey law. To be protected by the privilege, a communication or conduct must be “(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” Hawkins, 661 A.2d at 289 (citation omitted). 7

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Defendants’ communications and conduct here in concealing and destroying evidence cannot satisfy at least the third of these requirements because this was not done in pursuit of any legitimate object of litigation. Defendant Cahill does not even try to demonstrate satisfaction of this requirement, which warrants rejection of its argument for dismissal based on the litigation privilege. Defendant BASF, however, attempts to satisfy this requirement by pointing to what it considers to be an “object of litigation,” without any regard to the object’s legitimacy. BASF contends that the statements and conduct at issue “were made ‘to achieve the objects of the litigation,’ i.e., to obtain in the asbestos cases favorable results, which is the ultimate goal in any litigation.” BASF Brief at 28 (quoting Hawkins, 661 A.2d at 289). Thus, according to BASF, anything that it or its lawyers do to try to win a case is protected by the litigation privilege because winning “is the ultimate goal in any litigation.” The New Jersey Supreme Court, however, has squarely rejected this view of litigation as a win-at-all-costs undertaking. In recognizing the litigation privilege, New Jersey law imposes the distinct requirements that communications or conduct in question both “have some connection or logical relation to [litigation]” and be intended to “achieve the objects of the litigation.” This distinction is critical because it demonstrates that New Jersey courts do not protect all communications 8

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and conduct that are merely related to litigation under the privilege. Rather, they protect only those made to achieve the objects of the litigation.2 In addressing whether and how communications were made to achieve the objects of the litigation, the New Jersey Supreme Court has clearly articulated that the object of litigation is not victory at all costs, but the search for truth and justice. In Hawkins, the Court held that the privilege applied to an investigator’s statements made during a pretrial investigation, finding that the “achieve the objects of litigation” requirement was satisfied because “‘[p]retrial investigation is necessary to a thorough and searching investigation of the truth,’ and, therefore, essential to the achievement of the objects of litigation.” 661 A.2d at 290 (quoting Van V. Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum. L. Rev. 463, 477 (1909)). The Court further explained that pretrial communications by parties and witnesses “are protected to promote the development and free exchange of information and to foster judicial and extrajudicial resolution of disputes.” 661 A.2d at 290 (citation omitted). Here, of This is not to say that other New Jersey courts have always been careful to make this distinction. See, e.g., Williams v. Kenney, 877 A.2d 277, 288 (N.J. Super. Ct. App. Div. 2005) (“The requirement that the communication be in furtherance of the objectives of the litigation is part and parcel of the requirement that the communication have some logical relation to the action.”). Collapsing these requirements together, however, results in a fundamentally different and more free-ranging inquiry than that recognized by the State’s highest court.
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course, Defendants’ concealment and destruction of evidence did just the opposite by disabling the development and exchange of relevant information, and thereby undermining the legitimate resolution of Plaintiffs’ and class members’ cases. In Loigman, supra, the New Jersey Supreme Court was even more careful to recognize in applying the litigation privilege that the search for truth and justice is the only legitimate object of litigation through the courts. In Loigman, the Court held that the privilege applied to a lawyer’s prior litigation conduct of filing a motion to sequester a potential witness who wanted to attend trial proceedings. After finding that the motion was a communication made in litigation by an authorized participant, the Court addressed the “achieve the objects of the litigation” requirement first by recognizing that “[s]equestration of witnesses serves the salutary purpose of ensuring that a witness who is testifying not influence a witness who is about to testify.” 889 A.2d at 437, (citing Morton Bldgs., Inc. v. Rezultz, Inc., 603 A.2d 946, 949 (N.J. 1992)); see also Morton Bldgs., 603 A.2d at 949 (“The purpose of sequestration is to discourage collusion and expose contrived testimony.”). The Court thus held in Loigman that the attorney’s sequestration motion in the prior litigation was privileged because “[s]eeking truthful, accurate, and non-tainted testimony certainly is the objective of every litigated case.” 889 A.2d at 437. 10

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This is fatal to Defendants’ litigation privilege defense here. Defendants do not and cannot reconcile their alleged conduct of concealing and destroying relevant evidence with the truth-seeking objective of litigation that underpins the privilege’s application under New Jersey law. If the type of conduct alleged in Plaintiffs’ Complaint were protected by the privilege, then New Jersey would be a place where “anything goes” in litigation, and the State’s highest Court’s recognition that the search for truth is the “objective of every litigated case” would be mere window dressing for a very different type of court system. Since Defendants offer no answer for how their conduct in concealing and destroying relevant evidence can be deemed to have been done in pursuit of the truth as to Plaintiffs’ and class members’ claims in their personal injury cases, they fail to establish the predicate for applying the litigation privilege. Accordingly, their motions to dismiss should be denied. II. Decisions From Other Jurisdictions That Share New Jersey’s Concept of the Legitimate Objectives of Litigation Further Undercut Any Application of the Litigation Privilege Here. In contrast to New Jersey’s clear law on this point, there are decisions by courts in other jurisdictions that divide over applying the litigation privilege to protect communications and conduct such as that alleged here involving concealment and destruction of relevant evidence. A closer look at those 11

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decisions, however, reveals that the jurisdictions that share New Jersey’s recognition that the search for truth is the overriding objective of litigation resoundingly reject the privilege’s application to this type of conduct. Foremost among these is the Hawaii Supreme Court’s decision in Matsuura v. E.I DuPont de Nemours and Co., 73 P.3d 687 (Haw. 2003). In Matsuura, the Hawaii Supreme Court accepted a federal district court’s certification of the question of whether, under Hawaii law, a party is “immune from liability for civil damages based on that party’s misconduct, including fraud, engaged in during prior litigation proceedings.” Id. at 688. This question arose out of products liability litigation over DuPont’s agricultural fungicide, Benlate, which was alleged in prior litigation to have destroyed crops because it was contaminated with herbicides. Id. at 689. In the subsequent litigation that spawned the certified question involving the litigation privilege, the plaintiffs alleged that DuPont had in their earlier products liability cases: (1) misrepresented critical test results performed by Alta Laboratories (Alta test results) that demonstrated that Benlate was contaminated with herbicides; (2) withheld evidence of widespread contamination of Benlate; and (3) withheld field tests demonstrating that Benlate was harmful to plants. Id. In addressing whether the litigation privilege would apply to this conduct 12

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under applicable state law, the Hawaii Supreme Court began by recognizing the “interrelated policies associated with the litigation privilege,” which include: (1) promoting the candid, objective, and undistorted disclosure of evidence; (2) placing the burden of testing that evidence upon the litigants during trial; (3) avoiding the chilling effect resulting from the threat of subsequent litigation; (4) reinforcing the finality of judgments; (5) limiting collateral attacks upon judgments; (6) promoting zealous advocacy; (7) discouraging abusive litigation practices; and (8) encouraging settlement. Id. at 693. The court proceeded to find that all but one of these objectives would be served by rejecting application of the litigation privilege to the conduct at issue. Id. at 694-99. With respect to the first objective of promoting candid, objective, and undistorted disclosure of evidence, the court explained that this “better enable[s] the finder of fact to uncover the truth,” which is essential to the function of courts as “forums for the discovery of truth.” Id. at 694 (citation omitted).3 The court then noted that the litigation privilege may further the truth-seeking function by limiting liability for litigation misconduct because “the threat of liability might

Notably, in conceiving of courts as “forums for the discovery of truth,” the court relied in part upon the New Jersey Supreme Court’s longstanding recognition that “courts perform ‘two essential tasks: sifting through conflicting versions of the facts to discover where truth lies, and applying the correct legal principles to the facts as found.’” Matsuura, 73 P.3d at 694 (quoting In re Vincenti, supra, 458 A.2d at 1275) (internal citation omitted).
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reduce the quantity and quality of evidence available to the finder of fact.” Id. In returning to the conduct at issue, however, the court noted that DuPont was “alleged to have fraudulently distorted the evidence presented in a prior proceeding,” and found that “such misconduct is directly contrary to the policy of promoting the candid, objective, and undistorted disclosure of evidence.” Id. The court then came to similar conclusions with respect to all but one of the litigation privilege’s remaining policy objectives as applied to the facts of the case before it. See, e.g., id. at 694 (“[W]ithholding and destroying evidence obviously frustrates the policy of placing the burden of testing the evidence upon the litigant. Clearly, parties cannot test what is willfully and wrongfully withheld from them.”); id. at 696 (“[W]hen there is an allegation of fraud, the policy of reinforcing the finality of judgments does not favor limiting liability in a subsequent proceeding.”); id. at 699 (“[E]ncouraging parties to forego the protections associated with a trial requires adequate assurance that appropriate remedies exist for settlements reached through bad faith and misconduct.”).4 The one policy objective of the litigation privilege that Matsuura found to be generally applicable to all subsequent litigation, including that alleging concealment and destruction of evidence, was avoidance of the “chilling effect resulting from the threat of subsequent litigation.” See 73 P.3d at 694-95 (“Given the importance of access to the courts, the policy of avoiding the chilling effect resulting from the threat of litigation generally favors limiting liability in subsequent proceedings.”).
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Notably, in rejecting DuPont’s argument that “promoting zealous advocacy” weighed in favor of applying the privilege, the court emphasized that “there are limits to how far an attorney should go in representing a client,” and that “[l]itigation misconduct that amounts to a fraud on the court directly conflicts with the pursuit of justice and never results from a reasonable advocate’s best judgment.” Id. at 697 (citations omitted). In light of this extensive analysis of the litigation privilege’s objectives, the Hawaii Supreme Court held in Matsuura that, “[u]nder Hawaii law, a party is not immune from liability for civil damages based upon that party’s fraud engaged in during prior litigation proceedings.” Id. at 700. Whether this decision is deemed to create a general rule concerning fraud allegations or one more tailored to allegations of concealment and destruction of relevant evidence in prior proceedings, Matsuura’s analysis of the litigation privilege supports the same conclusion here that Defendants are not immune from civil damages liability based upon their concealment and destruction of evidence in prior litigation. Other courts have reached similar conclusions in rejecting the litigation privilege’s application to such conduct. In Living Designs, Inc. v. E.I. DuPont de Nemours and Co., 431 F.3d 353 (9th Cir. 2005), which also involved DuPont’s concealment and destruction of evidence of the contamination of Benlate with 15

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herbicides, the court followed Matsuura in holding under Hawaii law that “so long as a cause of action for fraud is asserted, the litigation privilege does not protect subsequent litigation asserting other causes of action stemming from the fraud allegedly committed in prior proceedings.” Id. at 372. In FMC Technologies, Inc. v. Edwards, 464 F. Supp. 2d 1063 (W.D. Wash. 2006), the court held that the litigation privilege did not apply to a plaintiff’s claim for fraudulent inducement of settlement based upon the defendant’s concealment and destruction of evidence of trade-secret theft that was the subject of prior litigation. Id. at 1065. The court recognized a “larger actionable conspiracy” exception to the litigation privilege, finding that the fraud claim before it was not merely “a suit for trade secret theft ‘plus perjury,’” but rather was one alleging “fraudulent inducement of a settlement–partially achieved by fabricating evidence, providing deliberately deceptive discovery responses, and covering up the original trade secret theft.” Id. at 1071. In finding that these allegations fell well outside of the litigation privilege’s protection, the court noted that Washington’s litigation privilege “‘is a judicially created privilege founded upon the belief that the administration of justice requires witnesses in a legal proceeding to be able to discuss their views without fear of a defamation lawsuit.’” Id. (quoting Deatherage v. State Examining Bd. of Psychology, 948 P.2d 828, 830 (Wash. 16

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1997)). However, the court emphasized that: Encouraging frank, candid, honest witness testimony without fear of future ‘perjury’ litigation is precisely the policy goal behind the privilege that will not be accomplished if the Court now protects, in the name of the litigation privilege, the evasive, fabricated, and dishonest testimonial conduct that allegedly occurred here. If events occurred as Plaintiffs allege, Defendants’ conduct extended beyond perjury and into the realm of accomplishing a wrong greater than perjury alone. FMC, 464 F. Supp. 2d at 1071-72 (emphasis in original). In short, the goal of encouraging candid and honest testimony in litigation would be hindered by permitting parties to put forth fabricated or dishonest testimony while knowing full well that they will never be held accountable. This plainly is not what the litigation privilege was intended to protect. Each of these decisions supports rejection of Defendants’ invocation of the litigation privilege here. This is not simply because these cases involve identical allegations of concealment and destruction of relevant evidence in prior litigation. Rather, it is because they address this type of dishonest and fraudulent conduct in the context of recognizing that the privilege is intended to foster the honest and candid presentation of evidence in courts where the search for truth is the objective of every litigated case. This same context has underpinned the litigation privilege’s application and contours under New Jersey law.

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It should be noted, however, that this conception of the privilege as, at bottom, aiding litigation’s search for the truth has not prevailed in all jurisdictions. As discussed, some courts recognize a more expansive application of the litigation privilege under which allegations that a defendant “failed to respond to or issued improper responses to discovery, gave untruthful testimony, . . . and took false litigation positions” are barred by the privilege simply because the claims “depend on acts with some relation” to other litigation. Green Leaf Nursery, supra, 341 F.3d at 1302 (emphasis added) (applying Florida law); see also Simms v. Seaman, 23 A.3d 1, 10 (Conn. App. Ct. 2011) (“The purpose of affording absolute immunity to those who provide information in connection with judicial and quasijudicial proceedings is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.”); but see id. at 16 (Bishop, J. dissenting) (“Immunizing lawyers from claims based on fraudulent behavior serves no legitimate public policy purpose.”). These decisions should not control this Court’s analysis of New Jersey’s litigation privilege because they effectively elevate the interests of a represented client over the truth-seeking function of the court system. As one court explained in recognizing an arguably more expansive application of the privilege: 18

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We find that when an attorney is acting in his representative capacity pursuant to litigation, and not solely for his own interests, he shall enjoy the litigation privilege and shall not be subject to suit by an opponent of his client, arising out of his representative conduct and communications. Taylor v. McNichols, 243 P.3d 642, 658 (Idaho 2010). Notably, even this analysis only protects lawyers, and not the fraudulent conduct of a party (such as BASF). Moreover, in doing so, this iteration of the litigation privilege does impose a restraint upon lawyers by requiring that their advocacy further their clients’ interests instead of their own. However, by making service of a client’s interests the only requirement for applying the privilege, such decisions at least implicitly subordinate the truth-seeking function of litigation that has served as the policy underpinning of New Jersey’s litigation privilege.5 In short, the division of authority in other jurisdictions over whether the

These decisions do recognize the existence of other restraints upon a party and its lawyer’s conduct in litigation that are imposed through the rules of civil procedure and professional conduct. See, e.g., Taylor, 243 P.3d at 658 (“We believe our Rules of Civil Procedure, our Rules of Professional Conduct, and the court’s inherent authority provide adequate safeguards to protect against abusive and frivolous litigation tactics.”) (citation omitted). The restraining effect of these rules, however is severely limited both because they are under-enforced and they fail to provide adequate private remedies for persons actually harmed by offending conduct. The civil and professional rules thus, by design, do not advance the deterrent and compensatory functions that are served by private tort claims such as those asserted here. See generally Paul T. Hayden, Reconsidering the Litigator’s Absolute Privilege to Defame, 54 Ohio St. L.J. 985, 1038-40 (Fall 1993).
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Case 2:11-cv-01754-SRC -MAS Document 97-2

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litigation privilege applies to conduct like that alleged here involving concealment and destruction of evidence should not detain this Court. Rather, because the decisions that reject applying the privilege to such conduct do so because they make the court system’s search for truth paramount to the personal interests of any party to a litigation, these decisions better reflect the purposes and priorities that underpin New Jersey’s litigation privilege. Accordingly, Defendants BASF and Cahill’s arguments for applying the privilege to shield their win-at-all-costs litigation strategy are contrary to New Jersey law and should be rejected. CONCLUSION For all of the reasons set forth herein, Defendants BASF and Cahill’s motions to dismiss based upon the litigation privilege should be denied. Dated: November 30, 2011 Respectfully submitted, /s/ Esther E. Berezofsky Esther E. Berezofsky, Esq. WILLIAMS CUKER BEREZOFSKY, LLC Woodland Falls Corporate Center 210 Lake Drive East, Suite 101 Cherry Hill, NJ 08002-1163 Tel: 856-667-0500 Fax: 856-667-5133 Email: eberezofsky@wcblegal.com Counsel for Amicus Curiae Public Justice, P.C. 20

Case 2:11-cv-01754-SRC -MAS Document 97-2

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Of Counsel on the Brief Arthur H. Bryant Amy Radon PUBLIC JUSTICE, P.C. 555 12th Street, Suite 1620 Oakland, CA 94607 Michael J. Quirk WILLIAMS CUKER BEREZOFSKY, LLC 1515 Market Street, Suite 1300 Philadelphia, PA 19102

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