Party Discovery: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                BRAYTON®PURCELL LLP

ATTORNEYS AT LAW

(415) 898-1555

ALAN R. BRAYTON, ESQ., S.B. #73685
KIMBERLY J. CHU, ESQ., S.B. #206817

JENNIFER L. ALESIO, ESQ., S.B. #258413 ELECTRONICALLY

BRAYTONPURCELL LLP

Attorneys at Law FILED

222 Rush Landi: ng Road Superior Court of California,

P.O. Box 6169 : . County of San Francisco

Novato, California 94948-6169 DEC 12 2008

(415) 898-1555 GORDON PARK-LI, Clerk
oe BY: ANNIE PASCUAL

Attomeys for Plaintiff Deputy Clerk

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

LOUIS CASTAGNA,
Plaintiff,

ASBESTOS
No. 274230

PLAINTIFF'S SEPARATE STATEMENT
IN SUPPORT OF MOTION TO COMPEL
DEFENDANT FOSTER WHEELER LLC
(FEA FOSTER WHEELER
CORPORATION) TO PRODUCE ITS
CUSTODIAN OF RECORDS AND
PERSON MOST KNOWLEDGEABLE
FOR DEPOSITION AND TO PRODUCE
DOCUMENTS AT DEPOSITION

VS.

ASBESTOS DEFENDANTS (BP)

Nee ee ee?

Date: January 14, 2009

Time: 9:00 a.m.

Dept.: 610

Trial Date: None Set

Date Action Filed: June 6, 2007

Pursuant to Rule 3.1020 of the California Rules of Court, plaintiff hereby submits the

following Separate Statement of Disputed Issues Re: Production of Defendant POSTER
WHEELER LLC’s Custodian of Records and Person(s) Most Knowledgeable for deposition.
This statement sets forth the deposition categories verbatim, defendant’s responses verbatim,”
and the reasons why plaintiff's discovery requests should be compelled.

GENERAL ECTIONS TO ENTIRE DE! ITION NOTICE

DEFENDAN 1’S GENERAL OBJECTION NO. 1
Deposition Location: Under C.C.P. § 2025.250(b), Foster Wheeler objects to the

location noticed by Plaintiffs for the deposition and document production. Foster Wheeler's

Kolin’ yrech 19229855 ume-deps FOSTER we i

PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL DEFENDANT FOSTER WHEELER LLC (PK.
POSTER WHEELER CORPORATION) TO PRODUCE ITS CUSTODIAN OF RECORDS AND PERSON MOST KNOWLEDOBABLE
POR DEPOSITION AND TO PRODUCE DOCUMENTS AT DEPOSITIONGo 0 me NR RH HW FR WwW VY

business office is not located within 150 miles of San Francisco, and therefore any depositions
of Foster Wheeler may not take place within San Francisco. Consequently, as the notice is
invalid, Foster Wheeler is not required to produce documents or witnesses, and no documents
or witnesses will be produced in response to this flawed notice.

PLAINTIFF’S RESPONSE TO DEFENDANT’S GENERAL OBJECTION NO. 1

The proper location for plaintiff's deposition of FOSTER’s Person(s) Most
Knowledgeable and Custodian(s) of Records is San Francisco, California. C.C.P. § 2025.250
provides:

(a) Uniess the court orders otherwise under Section 2025.260, the
deposition of a natural person, whether or not a party to the
action, shall be taken at a place that is, at the option of the party
giving notice of the deposition, either within 75 miles of the
leponent's residence, or within the county where the action is
pending and within 150 miles of the deponent's residence.

(b) The deposition of an organization that is a party to the action
shall be taken at a place that is, at the option of the party giving
notice of the deposition, either within 75 miles of the
organization's principal executive or business office in California,
or Within the county where the action is pending and within 150
miles of that office.

(c) Unless the organization consents to a more distant place, the
deposition of any other organization shall be taken within 75
miles of the organization's principal executive or business office
in California. .

(d) If an organization has not designated a principal executive or
business office in Califomia, the deposition shall be taken at a
place that is, at the option of the party giving notice of the
deposition, either within the county where the action is pending,
or within 75 miles of any executive or business office in
California of the organization.

C.C.P. § 2025.250 does not permit the deposition of FOSTER’s Person(s) Most
Knowledgeable to be taken in New Jersey. Plaintiff does not seek to depose a natural person;
rather, plaintiff is seeking to depose FOSTER, an organization. An organization or other entity
must designate its “most qualified” officers or agents to testify on its behalf. (C.C.P.

§.2025 .230; 1, Brown & R. Weil, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter

up 2006} { 8:473.}) The designee’s place of residence, however, is immaterial because it 1s
the entity's deposition that is being taken. (Id. at 18:629.) Therefore, C.C.P. § 2025.250 (a)
does not apply to plaintiff's Notice of FOSTER.

According to defendant, FOSTER’s Principal glace of business is Perryville Corporate
Park, Clinton, New Jersey 08809-40000.” (June 16, 1997) (In Re Complex Asbestos
Litigation, San Francisco Superior Court docket No. 828684, FOSTER WHEELER
CORPORATION'S Responses to Plaintiff's Standard Interrogatories to All Defendants, Answer
to Interrogatory No. 3 at p. 6.) Further, “FWC does not have business offices, let alone a
principal place of business, in California.” (Id.) Therefore, C.C.P. § 2025.250 (b) and (c) do
not apply to plaintiff's Notice, as these subsections apply to organizations which have principal
executive offices or business offices in California. oe

As aresult, C.C.P. § 2025.250 (d) controls plaintiff's deposition of FOSTER’s Person(s)
Most Knowledgeable and Custodian(s) of Records. FOSTER “does not have business offices,
let alone a principal place of business, in California” and FOSTER has not designated a

Kno 0720Res mc depo FOSTER wod 2
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL DEPENDANT FOSTER WHEELER ERA

POSTER WHEELER CORPORATION) TO PRODUCE ITS CUSTODIAN OF RECORDS AND PERSON MOST KNOWLE!
FOR DEPOSITION AND TO PRO! E DOCUMENTS AT DEPOSITIONoO 6 NY DH BBW NHN

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16

principal executive or business office in California, Therefore, plaintiff's deposition of
FOSTER, pursuant to C.C.P. § 2025.250 (d), “shall be taken at a place that is, at the option of
the party giving notice of the deposition, either within the county where the action is pending, or
within 75 miles of any executive or business office in California of the organization.”
(Emphasis added.) Plaintiff properly exercised his option by designating the deposition location
as the offices of Premier Business Center, 225 Bush Street, Ste. 1600, San Francisco,
California, which are located in San Francisco County, the county where the action is pending.
Finally, C.C.P. § 2025.260 relief only applies to subsection (a) of 2025.256 as this
reference is within the subsection, not outside the subsection.

DEFENDANT’S GENERAL OBJECTION NO. 2

‘ 2. Failure to Meet and Confer: Foster Wheeler objects to the date, times and
locations unilaterally set by Plaintiffs for Defendant's COR/PMK depositions and document
production. Plaintiff has failed to consult with counsel for Defendant regarding availability and
convenience of scheduling as to the deponents and counsel for Foster Wheeler. Therefore, this
notice is unduly burdensome and harassing, absent Foster Wheeler's express agreement. (See
C.CP, § 2025.250(6).)

PLAINTLFF’S RESPONSE TO DEFENDANT’S GENERAL OBJECTION NO. 2

Plaintiff'is always flexible, within reason, in scheduling FOSTER’s depositions and
document productions to proceed. Since October 6, 2008, plaintiff has repeatedly made good-
faith meet-and-confer attempts regarding the scheduling of document production and
depositions to commence. Yet FOSTER continues to delay plaintiff's discovery and fails to
provide plaintiff with responsive documents to plaintiff's reasonable discovery requests and
dates certain that the depositions will commence.

If FOSTER chooses to raise the availability of scheduling of deponents, plaintiff insists
that FOSTER produce its deponents’ calendars, which may be produced in camera so that it is
not part of the public court record, in order to ascertain the scheduling of document production
and depositions of FOSTER’s Person(s) Most Knowledgeable and Custodian(s) of Records to
go forward. : .

Plaintiff is always willing to meet and confer with FOSTER regarding document
production and deposition scheduling. However, prior to service of the Notice, plaintiff has no
obligation to meet and confer with FOSTER regarding the date and place noticed for the
depositions. According to C.C.P. § 2025.270, “an oral deposition shall be scheduled for a date
at least 10 days after service of the deposition notice.” Pursuant to General Order No. 158, In
Re: Co bs Litigation, San Francisco Superior Court docket No, 828684, electronic
service via Lexis-Nexis requires that an additional two days be incorporated within the time set
in the original Notice. In this matter the deposition notice was served on October 6, 2008, and
the deposition was scheduled for October 22, 2008, giving FOSTER sixteen (16) days to
prepare for production, This is within the requirements of the Code of Civil Procedure and
General Order No, 158.

EFENDANT’S GEN 3

3. ategories: Foster Wheeler objects that the categories of information and
documents sought are overbroad, vague, ambiguous in time and scope, and lack specificity, so
as to render it impossible for Foster Wheeler to designate any person with the most knowledge
of information and to conduct a search for records, if any. Consequently, Plaintiff's requests are
unduly burdensome, oppressive and harassing in violation of C.C.P. §§ 2017.010; 2019.030;
and 2023.030, and fail to specify with reasonable particularity the materials sought in violation
of C.C.P. §§ 2025,220{a) (ez and 2025.230.

PLAINTIFF’S RESPONSE TO DEFENDANT’S GENERAL OBJECTION NO. 3
Plaintiff's requests are clear, narrowly defined and unambiguous. Plaintiff

Mr. CASTAGNA’s injuries resulted from exposiire to asbestos-containing products

manufactured, supplied, distributed, installed, repaired, and/or replaced by FOSTER. Each of

KMln'ured\102298'ss-nme-depo FOSTER, 3
PLAINTIFF'S SEPARATE BOR HORN TG PRODUCE OF MOTION TO COMPEL DEFENDANT FOSTER WHEELER LLC (PKA.

FOSTER WHEELER CORPORATIO’ ODUCE ITS CUSTODIAN OF RECORDS AND PERSON MOST KNOWLEDGEABLE
FOR DEPOSITION AND TO PRODUCE DOCUMENTS AT DEPOSITION_

2 Oe 4M AH B WN

10

plaintiff's requests seeks discovery regarding defendant’s manufacture, distribution, sale,
installation, repair, and/or replacement of asbestos-containing products, to which plaintiff

Mr. CASTAGNA was exposed. The identity, distribution, and/or handling of
asbestos-containing products by FOSTER are highly relevant in that this information would
provide further information that plaintiff may rely on and further investigate to substantiate
plaintiff's claims against this defendant, as well as other defendants in this action. An objection
of "vague, ambiguous and unintelligible" to a specific request may be treated as a “nuisance”
objection and exposes the responding party to sanctions. Standon Company. Inc. v. Superior
Court (1990) 225 Cal. App.3d 898, 903.

Plaintiff's requests are not burdensome to FOSTER. Plaintiff's Notice only seeks
information and documents which FOSTER is obligated to produce under General Order No.
129 and C.C.P. § 2031.010. FOSTER has failed to comply with the General Order. Therefore,
plaintiff roust seek this discovery through the deposition of FOSTER’s Person(s) Most
Knowledgeable and Custodian(s) of Records. Plaintiffis only seeking information and
documents through the Notice that plaintiff is entitled to pursuant to General Order No. 129.

Even if it were somewhat burdensome for defendant to search for information and
documents responsive to plaintiff's requests, it would not absolve defendant of its obligations.
The standard is not whether the request is burdensome. The request must be unduly
burdensome. Defendant’s objection on the ground of undue burden must be rejected under the
legal standard outlined in Brotsky v. State Bar (1962) 56 Cal.2d 287, 304. When a party
responding to a request for production of documents objects that the request is unduly
burdensome, the responding party must either suffer the burden of the search or else make the
records available so that the requesting party may conduct the search. id.) No such offer was
made here by defendant, The burden is on the objecting party to sustain an objection to burden
or oppression by providing detailed evidence showing precisely how much work is required to
answer or produce documents; conclusory statements are not sufficient. West Pico Fumiture
Co. (1961) $6 Cal.2d 407.

Plaintiff has reasonably defined “RELEVANT PERIOD OF TIME IN EXHIBIT A” and
“RELEVANT PERIOD OF TIM E IN EXHIBIT B” for the purpose of this Notice of
Deposition. Plaintiff's Notice complies with C.C.P. § 2017.010, which states:

[a}ny party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the
pending action...if the matter either is itself admissible in
evidence or appears reasonably calculated to lead to the discovery
of admissible evidence. Discovery may relate to the claim of any
party to the action... Discovery may be obtained of the identity
and location of persons having knowledge of any discoverable
matter, as well as of the existence, description, nature, custody,
condition, and location of any document, tangible thing, or land

or other property.

“RELEVANT PERIOD OF TIME IN EXHIBIT A,” as defined by plaintiff's Notice, is
reasonably calculated to lead to the discovery of admissible evidence. Plaintiff's Exhibit A is
specific in its identification of the locations, vessels, class of vessels, plaintiff, and plaintiff's
employers during the “RELEVANT PERIOD OF TIME IN EXHIBIT A” about which plaintiff
is seeking discovery from defendant. “RELEVANT PERIOD OF TIME IN EXHIBIT A” has
been defined for completeness of discovery regarding each vessel listed in the Exhibit A and to
avoid repetitious discovery regarding each vessel in the future. It is in the best interest of both
parties for plaintiff to be complete in his discovery request so that repetitious discovery
regarding each vessel is avoided.

© Exhibit A is specific in its identification of “class of vessels” to which the vessels
plaintiff Mr. CASTAGNA worked aboard have been assigned by the US. NAVY. The US
NAVY orders vessels to be built in groups or “classes,” which provides a standard system of
identification. Based on the US NAVY’s orders, such class documents are relevant, responsive

K Stnjureds102296 as 1to-depe- FOSTER. wed 4

PLAINTIFE'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL DEFENDANT FOSTER WHEELER LLC (FKA
POSTER WHEELER CORPORATION) TO PRODUCE ITS CUSTODIAN OF RECORDS AND FERSON MOST KNOWLEDG! LE
FOR DEPOSITION AND TO PRODUCE DOCUMENTS AT DEPOSITIONOo we HA OH RB BN om

WN YR ND RN RQ mmm metre mt et ae
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and discoverable and will lead to the discovery of admissible evidence because many
documents responsive to plaintiff's request do not mention a particular vessel in the class but
rather refers to the “class of vessels.” To avoid repetitious discovery regarding each vessel listed
on Exhibit A, plaintiff is seeking discoverable documents and information to the vessel “class”
that the US NAVY has assigned each particular vessel,

In this matter “RELEVANT PERIOD OF TIME IN EXHIBIT B” as defined by
plaintiff's Notice is reasonably calculated to lead to the discovery of admissible evidence.
Plaintiff's Exhibit B is specific in its identification of the land-based jobsites, plaintiff, and
employers during the “RELEVANT PERIOD OF TIME IN EXHIBIT B” about which plaintiff
is seeking discovery from defendant. “RELEVANT PERIOD OF TIME IN EXHIBIT B” has
been defined for completeness of discovery regarding each land-based jobsite listed in the
Exhibit B to effectively avoid repetitious discovery regarding each land-based jobsite in the

future.

Plaintiff's requests have been articulated with reasonable particularity according to the
standards set forth in C.C.P. § 2025.220(a)(4) and Union Trust Company v. Superior Court
(1938) 11 Cal.2d 449. Plaintiff drafted each category in the Notice to specifically identify the
precise scope and extent of information that would lead to the discovery of admissible evidence
concerning plaintiff Mr. CASTAGNA’s exposure to defendant’s asbestos-containing products.
Plaintiff's Notice is sufficiently specific to enable defendant to identify the documents
requested because plaintiff's deposition notice is narrowly tailored to the issues of this case.
For example, the Exhibit A is specific in ils identification of the locations, vessels, class of
vessels, plaintiff, plaintiff's employers, and relevant dates about which plaintiff is seeking
discovery from defendant. The Exhibit B is specific in its identification of the land-based
jobsites, plaintiff, employers, and relevant dates about which plaintiff is seeking discovery from

jefendant.

°S GENERAL OBJECTION NO. 4

. : Foster Wheeler objects on the grounds that Plaintiffs are already in
possession of the information sought, Thus there is no substantial justification for this ©
discovery. (C.C.P. §§ 2017.011; 2019.030; and 2023.030.) Various Plaintiff's counsel,
including Plaintiff's counsel in this action, have taken the deposition of Foster Wheeler's
COR/PMK numerous times. They already have, or have access to, information and documents
pertaining to, for example, Foster Wheeler's document retention policy (Category No. 1) and
warnings of asbestos-related health hazards (Category Nos. 15 and 16). The Deposition Notice
is therefore unduly burdensome and harassing.

LAINTIFE’S RESPONSE TO DEFENDANT’S GENERAL OBJECTION NO, 4

Plaintiff's Notice is both a request for production of documents and for production of a
deponent to testify regarding those documents. Plaintiff is seeking detailed documents and
testimony relating to specific FOSTER equipment that is specific to Mr. CASTAGNA’s work
history at each land-based site and aboard each vessel. By FOSTER’s very own admission,
plaintiff's requests for FOSTER’s production of documents and deponents are necessary for
gach specific FOSTER contract. FOSTER makes plaintiff"s point in its own General Order No.

‘9 response:

The precise nature of the services provided by FWC was and is
ivi . The nature of

strictly dependent on i
materials or products, which may have been used on each
, can onl determined b: i jew.

documentation for each contract. FWC has been involved in.
hundreds, if not thousands, of contracts. With respect to contract
performance, where FWC was required to procure insulation, or
any other product or materials, which may or may not have
contained asbestos, FWC would have solicited competitive bids
from various manufacturers, distributors, distributors, suppliers,

Ate o2eesn-mte-depe FOSTER wed 3

PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL DEFENDANT FOSTER WHEELER LLC (FRA
FOSTER WHEELER CORPORATION) TO PRODUCE ITS CUSTODIAN OF RECORDS AND PERSON MOST KNOWLEDGEABLE
FOR DEPOSITION AND TO PRODUCE DOCUMENTS AT DEPOSITION2 OD YN DR hh BB we

RM RN NBN RNR RQ eat
oI AA EO = 5S SCHAAR A RB HH = S

or sub-contractors and then issued a purchased order to the
successful bidder, usually with instructions to deliver the
materials to the construction site, where the equipment supplied
by FWC was to be erected or installed. Ordinarily, the
application or installation of insulation or refractory would have
been sub-contracted to others, either by FWC or the
owner/customer.

Hence, this is not an instance where FWC manufactured
identifiable lines of products. This defendant’s business was
dependent on the terms of each contract. Under the
circumstances, it is impossible for FWC to identify all person’s
most knowledgeable with respect to FWC’s use of asbestos
containing products in conjunction with contracts or its
equipment, or subcontracts with insulation or refractory
contractors. The response to this Interrogatory would require a
detailed review of each available document for each contract.”
[Emphasis added.] (June 16, 1997) In Re Complex Asbestos

itigation, San Francisco Superior Court docket No. 828684,
FOSTER WHEELER CORPORATION’s Responses to
Plaintiff's Standard Interrogatories to All Defendants, Answer to
Interrogatory No. 10 at p. 9-10.

FOSTER maintains thousands of documents regarding its marine and land-based boilers
which it has failed to produce to plaintiff pursuant to General Order No. 129, documents to
which plaintiff is entitled pursuant to this Court’s General Order No. 129 and C.C.P.

§ 2031.010. FOSTER concealed many of the details of its document collections. FOSTER
only produced Robert F. Tracey, defendant’s Person Most Knowledgeable regarding its
document retention policy and repository, after this Court, on its own, raised this issue and
ordered defendant to Produce its Person Most Knowledgeable on January 29, 2008, in the
Davies (SFSC 453387) matter. During plaintiffs deposition of Mr. Tracey on February 11,
2008, Mr. Tracey testified that FOSTER’s Record Retention Repository is located in its,
headquarters at Perryville Corporate Park, Clinton, New Jersey. Mr. Tracey further testified
that as part of FOSTER’s Record Retention policy it maintains approximately 34,000 banker
boxes of business records relating to its marine and land-based boilers in its Record Retention
Repository; 7,000 through 8,000 reels of microfilm of documents deemed significant in import
by a manager to be microfilmed as well as stored in the Law Offices of Sedgwick in Newark,
New Jersey; an “Asbestos-File Library” containing 150 filing cabinets of documents previously
produced in litigation stored in its Perryville Facilities building; and a List of Manuals for

OSTER’s marine and land-based equipment which FOSTER uses to search for documents.
FOSTER has had and continues to have an obligation to produce these documents pursuant this
Court’s General Order No. 129; yet defendant continues to refuse to do so, forcing plaintiff into
the position where requesting document production relating to each specific contract and
deposing FOSTER’s ersonts) Most Knowledgeable and Custodian(s) of Records has become
necessary in this case.

Plaintiff's requests are not burdensome to FOSTER. Plaintiff's Notice only seeks
information and documents which FOSTER is obligated to produce under General Order No.
129 and C.C.P. § 2031.010. FOSTER has failed to comply with the General Order. Therefore,
plaintiff must seek this discovery through the deposition of FOSTER’s Person(s} Most
Knowledgeable and Custodian(s) of Records. Plaintiff is only seeking information and
documents through the Notice that plaintiff is entitled to pursuant to General Order No. 129.

Even if it were somewhat burdensome for defendant to search for information and
documents responsive to plaintiff's requests, it would not absolve defendant of its obligations.
The standard is not whether the request is burdensome. The request must be unduly
burdensome. Defendant’s objection on the ground of undue burden must be rejected under the

Aig t02206%er-me-depo- FOSTER, 6

PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL DEFENDANT FOSTER WHEELER LLC (SICA.
FOSTER WHEELER CORPORATION) TO PRODUCE ITS CUSTODIAN OF RECORDS AND PERSON MOST KNOWLEDGEABLE
FOR DEPOSITION AND TO PRODUCE DOCUMENTS AT DEPOSITIONRP NM DP NR RN NR NR mm mmm
a 32 Rw FO HY |= SO we UY DH RB WN = ODO BOY DH BW NH

legal standard outlined in Brotsky v. State Bar (1962) 56 Cal.2d 287, 304. When a party
responding to a request for production of documents objects that the request is unduly
burdensome, the responding party must either suffer the burden of the search or else make the
records available so that the requesting party may conduct the search. (Id.) No such offer was
made here by defendant. The burden is on the objecting party to sustain an objection to burden
or oppression by providing detailed evidence showing precisely how much work is required to
answer or produce documents; conclusory statements are not sufficient. West Pico Furniture
Co. (1961) 56 Cal.2d 407. .

Plaintiff's Notice complies with C.C.P. § 2017.010, which states:

[a]ny party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the
pending action...if the matter either is itself admissible in
evidence or appears reasonably calculated to lead to the discovery
of admissible evidence. Discovery may relate to the claim of any
party to the action... Discovery may be obtained of the identity
and location of persons having knowledge of any discoverable
matter, as well as of the existence, description, nature, custody,
condition, and location of any document, tangible thing, or land
or other property.

“RELEVANT PERIOD OF TIME IN EXHIBIT A,” as defined by plaintiff's Notice, is
reasonably calculated to lead to the discovery of admissible evidence. Plaintiff's Exhibit A is
specific in its identification of the locations, vessels, class of vessels, plaintiff, and plaintiffs
employers during the “RELEVANT PERIOD OF TIME IN EXHIBIT A” about which plaintiff
is seeking discovery from defendant. “RELEVANT PERIOD OF TIME IN EXHIBIT A” has
been defined for completeness of discovery regarding each vessel listed in the Exhibit A and to
avoid repetitious discovery regarding each vessel in the future. It is in the best interest of both
parties for plaintiff to be complete in his discovery request so that repetitious discovery
regarding each vessel is avoided.

‘he Exhibit A is specific in its identification of “class of vessels” to which the vessels

laintiff Mr. CASTAGNA worked aboard have been assigned by the US NAVY. The US

|AVY orders vessels to be built in groups or “classes,” which provides a standard system of
identification. Based on the US NAVY’s orders, such class documents are relevant, responsive
and discoverable and will lead to the discovery.of admissible evidence because many
documents responsive to plaintiff's Tequest do not mention a particular vessel in the class but
rather refers to the “class of vessels.” To avoid repetitious discovery regarding ¢ach vessel listed
on Exhibit A, plaintiff is seeking discoverable documents and information to the vessel “class”
that the US NAVY has assi; each particular vessel.

In this matter “ VANT PERIOD OF TIME IN EXHIBIT B” as defined by
plaintiff's Notice is reasonably calculated to lead to the discovery of admissible evidence,

laintiff’'s Exhibit B is specific in its identification of the land-based jobsites, plaintiff, and
employers during the “RELEVANT PERIOD OF TIME IN EXHIBIT B” about which plaintiff
is seeking discovery from defendant. “RELEVANT PERIOD OF TIME IN EXHIBIT B” has
been defined for completeness of discovery regarding each land-based jobsite listed in the
Exhibit B to effectively avoid repetitious discovery regarding each land-based jobsite in the

future.

Pursuant to C.C.P. § 2019.020 (a), the fact that other plaintiffs have conducted discovery
in other cases shall not operate to delay plaincifr s discovery m this case. Code of Civil
Procedure § 2019.020 (ah clearly states that “the methods of discovery may be used in any
sequence, and the fact that a party is conducting discovery, whether by deposition or another
method, shail not operate to delay the discovery of any other party.” Pursuant to C.C.P.

§ 2019.010, any party may obtain discovery by oral or written deposition. An organization, or
other entity, must designate its “most qualified” officers or agents to testify on its behalf.

KAinjurediso2298\es~mte- depo FONTER spd 7
PLAINTIFFS SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL DEFENDANT FOSTER WHEELER LLC (PKA.
FOSTER WHEELER CORPORATION) TO PRODUCE ITS CUSTODIAN OF RECORDS AND PERSON MOST KNOWLEDGEABLE

FOR DEPOSITION AND TO PRODUCE DOCUMENTS AT DEPOSITIONNN NO NM RNR RN Rea .
Se 2A A BR YW YN = BS © ON DHA BF WN & GS 0D wm Iw DA BR WN

(C.C.P. § 2025.230.) Plaintiff is entitled to take the deposition of FOSTER’s Person Most
Knowledgeable, and defendant may not dictate the method or sequence of plaintiff's discovery.

'T’S GENE! ON NO. 5
. Definitions: Foster Wheeler objects to the categories of information and
documents requested to the extent that Plaintiffs may assert that Plaintiff's definition for words
is binding on Foster Wheeler. Specifically, Foster Wheeler objects to the definition of
“ASBESTOS-CONTAINING PRODUCTS" as overly broad, vague, ambiguous, confusing,
argumentative, and factually and legally erroneous. Indeed, Foster Wheeler submits that it did

‘not manufacture, distribute or sell "“ASBESTOS-CONTAINING PRODUCTS?” as the term is

reasonably understood. Foster Wheeler also objects to the term "class of vessels" as vague,
ambiguous, overbroad, and not reasonably calculated to lead to the discovery of admissible
evidence as it calls for information pertaining to vessels on which Plaintiff did not serve. Foster
Wheeler objects to the definition of "RELEVANT PERIOD OF TIME" as irrelevant, overly
broad, vague, ambiguous, confusing, argumentative, and not reasonably calculated to lead to the
discovery of admissible evidence in this matter as it exceeds the time period that Plaintiff
served on the vessel(s) and/or land site(s) in question. For example, although Plaintiff allegedly
served on the SS WILLIAM P. SNYDER, JR., only from 1969-1970, the Deposition Notice
defines the RELEVANT PERIOD OF TIME as "1906-1987," which both pre- and post-dates
Plaintiff's time on this vessel.

PLAINTIFF'S RESPONSE TO DEFEND. °S GENE OBJECTION NO. 5

Plaintiff is entitled to define terms for the purposes of the Deposition Notice in order to
clarify plaintiff’s categories. Plaintiff has reasonably defined “ASBESTOS-CONTAINING
PRODUCTS” “(ACP)” for this Notice of Deposition. The definition of “ASBESTOS-
CONTAINING PRODUCTS” “(ACP)” that plaintiff specifies in the Notice is based on the
definitions that this Court has used in its General Order No. 129, In Re: Complex Asbestos
Litigation, San Francisco Superior Court docket No. 828684. Defendant is therefore objecting
to the Court's own definitions and this objection is misplaced.

Plaintiff's Notice complies with C.C.P. § 2017.010, which states:

{a]ny party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the
pending action...if the matter either is itself admissible in
evidence or appears reasonably calculated to lead to the discovery
of admissible evidence. Discovery may relate to the claim of any
party to the action... Discovery may be obtained of the identity
and location of persons having knowledge of any discoverable
matter, as well as of the existence, description, nature, custody,
condition, and lecation of any document, tangible thing, or land
or other property.

“RELEVANT PERIOD OF TIME IN EXHIBIT A,” as defined by plaintiff's Notice, is
teasonably calculated to lead to the discovery of admissible evidence. Plaintiff's Exhibit A is
specific in its identification of the locations, vessels, class of vessels, plaintiff, and plaintiffs
employers during the “RELEVANT PERIOD OF TIME IN EXHIBIT A” about which plaintiff
is seeking discovery from defendant. “RELEVANT PERIOD OF TIME IN EXHIBIT A” has
been defined for completeness of discovery regarding each vessel listed in the Exhibit A and to
avoid repetitious discovery regarding each vessel in the future. It is in the best interest of both
parties for plaintiff to be complete in his discovery request so that repetitious discovery
tegarding each vessel is avoided.

‘he Exhibit A is specific in its identification of “class of vessels” to which the vessels
laintiff Mr. CASTAGNA worked aboard have been assigned by the US NAVY. The US
IAVY orders vessels to be built in groups or “classes,” which provides a standard system of

identification. Based on the US NAVY’s orders, such class documents are relevant, responsive

sAlnjurestto220695-me depo FOSTER wod . 8

PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL DEFENDANT FOSTER WHEELER LLC (FKA.
FOSTER WHEELER CORPORATION} TO PRODUCE ITS CUSTODIAN OF RECORDS AND PERSON MOST KNOWLEDGEABLE
FOR DEPOSITION AND TO PRI E DOCUMENTS AT DEPOSITIONwe oY DA Rh BR BR Ne

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19

and discoverable and will lead to the discovery of admissible evidence because many
documents responsive to plaintiff's request do not mention a particular vessel in the class but
rather refers to the “class of vessels.” To avoid repetitious discovery regarding each vessel listed
on Exhibit A, plaintiff is seeking discoverable documents and information to the vessel “class”
that the US NAVY has assi each particular vessel.
In this matter “RELEVANT PERIOD OF TIME IN EXHIBIT B” as defined by

plaintiff's Notice is reasonably calculated to lead to the discovery of admissible evidence.

laintiff's Exhibit B is specific in its identification of the land-based jobsites, plaintiff, and
employers during the “RELEVANT PERIOD OF TIME IN EXHIBIT B” about which plaintiff
is seeking discovery from defendant. “RELEVANT PERIOD OF TIME IN EXHIBIT B” has
been defined for completeness of discovery regarding each land-based jobsite listed in the
Exhibit Bto effectively avoid repetitious discovery regarding each land-based jobsite in the

‘uture, :

DI D, "S GI RAL OBJECTION NO. 6

6. Privilege/Work Froduct: Certain of the categories in the Deposition Notice may
seek the production or disclosure of communications prepared by or for Foster Wheeler's
lawyers, which cornmunications (a) were made by or to legal counsel in anticipation of or in
connection with litigation, or (b) reflect confidential and privileged communications between or
among counsel, representatives of Foster Wheeler and/or non-testifying experts retained for
purposes of assisting Foster Wheeler or its counsel in litigation. Foster Wheeler objects to the
extent that the Deposition Notice secks documents and information in violation of the attorney-
client privilege and the attorney work product doctrine. For purposes of responding to the
Deposition Notice, therefore, Foster Wheeler will not produce or disclose such
communications; in addition, Foster Wheeler will not disclose or otherwise identify such
communications in response to written discovery or on any listing of documents or things
withheld from production.

PLAINTIFF’S RESPONSE TO DEFENDANT’S GENERAL OBJECTION NO. 6
Plaintiff's Notice does not violate the attorney client privilege and the attorney work
product privilege. The purpose of attorney-client privilege is to encourage the client to make a
complete disclosure to his attomey without fear that others may be informed. City & County of
San Francisco v. Superior Court (1951) 37 Cal.2d 227. However, the privilege is strictly
construed because it tends to suppress otherwise relevant facts. Greyhound oration v.
Superior Court (1961) 56 Cal.2d 397. The attorney-work product privilege was intended to
enable an attorney to protect work effectively created in preparation for trial from being
disclosed to an opposing counsel. Hickman v. Taylor (1947) 329 U.S. 495. The party seeking
the privilege, however, must also sustain its burden that the documents claimed are actuall
work-product. Alpha Beta Co. v. Superior Court (1984) 257 Cal App.3d 818. Defendant should
not be allowed to hide behind these privileges when the categories plaintiff provided in the
Notice do not have the effect of disclosing such confidences or information. If defendant deems
it necessary to assert such privileges, plaintiff requests that the privilege log be provided, in
accordance with and providing the information required by the Code of Civil Procedure.

DEFENDANT’S GENERAL OBJECTION NO. 7

7. Trade Secrets: Certain of the categories in the Deposition Notice seek the
disclosure of proprietary trade secret information, which information is privileged and
confidential. To the extent that Foster Wheeler offers to provide a response to the Deposition
Notice which may contain, in part or in whole, such privileged and confidential proprietary
trade secret information, any such response shall be subject to agreement upon the procedure to

be used to protect such information from inappropriate disclosure under the Court's Orders.

PLAINTIFF’S RESPONSE TO DEFENDANT’S GENERAL OBJECTION NO. 7
Plaintiff's Notice does not violate the attorney client privilege, the attorney work
product privilege, or any confidential proprietary trade secret privilege. The purpose of

Alamos 0220¥ ge depo. FOSTER pd 9

PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL DEFENDANT FOSTER WHEELER LLC (FKA
FOSTER WHEELER CORPORATION) TO PRODUCE ITS CUSTODIAN OF RECORDS AND PERSON MOST KNOWLEDGEABLE
FOR DEPOSITION AND TO PRODUCE DOCUMENTS AT DEPOSITIONCO oOo YN A A ke Be

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attorney-client privilege is to encourage the client to make a complete disclosure to his attorney
without fear that others may be informed. City & County of San Francisco v. Superior Court
(1951) 37 Cal.2d 227. However, the privilege is strictly construed because it tends to suppress
otherwise relevant facts. Greyhound Corporation v. Superior Court (1961) 56 Cal.2d 397. The
attormey-work product privilege was intended to enable an attorney to protect work effectively
created in preparation for trial from being disclosed to an opposing counsel. Hickman v. Taylor
(1947) 329 U.S. 495, The party seeking the privilege, however, must also sustain its burden
that the documents claimed are actually work-product. Alpha Beta Co. v. Superior Court (1984)
257 Cal.App.3d 818, Defendant should not be allowed to hide behind these privileges when the
categories plaintiff provided in the Notice do not have the effect of disclosing such confidences
or information. If defendant decms it necessary to assert such privileges, plaintiff requests that
the privilege log be provided, in accordance with and providing the information required by the
Code of Civil Procedure. Furthermore, objections based on all leged confidential information are
not proper objections; the answering party should seek a protective order to excuse the duty to

answer. Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal. App.2d 12, 23.

DEFENDANT’S GENERAL OBJECTION NO. 8
8 Preservation of Rights: In responding to the Deposition Notice, Foster Wheeler
does not waive, intends to preserve, and is preserving:
a all objections as to competency, relevancy, materiality and
inadmissibility; .

. all rights to object on any ground to the use of any of the responses herein
in any subsequent proceeding, including the trial of this or any other action; and
c. all objections as to vagueness and ambiguity; and all rights to object on
any ground to any further discovery requests involving, or related to, any of the categories in
Plaintiff's discovery request.

PLAINTIFF’S RESPONSE TO DEFENDANT’S GENERAL OBJECTION NO. 8
Plaintiff's discovery request was not intended to operate as a waiver of rights in
exchange for FOSTER’s response. With a timely objection to plaintiff's Notice, defendant has

preserved its rights as dictated by the Code of Civil Procedure - Discovery Act.

SPECIFIC OBJECTIONS - DOCUMENTS SOUGHT

PLAINTIFF’S CATEGORY NO. 1

All DOCUMENTS PERTAINING TO YOUR document retention policy addressing
retention of: contracts, specifications, blueprints, correspondence, product manuals, business
records, U.S. Navy records, and air sample test reports, related to YOUR ACP, designed,
manufactured, assembled or sold for installation on the vessels listed in the attached Exhibit A.

DEFENDANT’S OBJECTION TO CATEGORY NO. 1
Foster Wheeler incorporates by reference herein its General Objections set forth above.

Foster Wheeler objects to this category as it seeks information relating to times, events and
other things beyond the subject matter of the Complaint and plaintiff's product or manufacturer
identification and, consequently, that there is no substantial justification for this discovery. (See
C.C.P. §§ 2017.010; 2023.010; 2030.010(a) and 2030(a)(l); West Pico, supra, at 416.)
Moreover, this category is overbroad to the extent of being impossible to designate a witness or
conduct a reasonable and diligent search, and thus is not reasonably particularized as required
By C.C-P. § 2025.230. Foster Wheeler also objects on the grounds that this category is
overbroad as to time and scope, and is not reasonably calculated to lead to the discovery of
admissible evidence in this case, particularly insofar as it encompasses documents and/or
information pertaining to products that Plaintiff did not personal yy use, handle or work with,
and/or encompasses time periods when Plaintiff did not personally use, handle or work with a

iven product. Foster Wheeler objects to this category insofar as it seeks information and/or
docunentation protected from disclosure by the attorney work product privilege, and/or calls

K Aejuredit02296us-nmendepo-FOSTER wpe 10

PLAINTIFE'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL DEFENDANT FOSTER WHEELER LLC (FKA
POSTER WHEELER CORPORATION) TO PRODUCE ITS CUSTODIAN OF RECORDS AND PERSON MOST KNOWLEDGEABLE
FOR DEPOSITION AND TO PRODUCE DOCUMENTS AT DEPOSITION1
2
3
4
3
6

7

for the premature disclosure of expert witness information on this case. Further, Foster Wheeler
objects that this category is unduly burdensome, oppressive and harassing, in that the
information sought has already been covered and/or produced in connection with discovery
responses in this action and other actions by these Plaintiff’s attorneys, specifically in Foster
Wheeler’s responses to Plaintiff's Standard Interrogatories and in prior COR/PMK depositions.

PLAINTIFF'S RESPONSE TO DEFENDANT’S OBJECTION TO CATEGORY NO. 1

Plaintiff's Notice is both a request for production of documents and for production of a
deponent to testify regarding those documents. Plaintiff is seeking detailed documents and
testimony relating to specific FOSTER equipment that is specific each vessel. By FOSTER’s
very own admission, plaintiff's requests for FOSTER’s production of documents and deponents
are necessary for each specific FOSTER contract. FOSTER makes plaintiff's point in its own
General Order No. 129 response:

The precise nature of the services provided by FWC was and is
strictly dependent on each individual contract. The nature of

which may have been used on each
contract, can only be determined by a detailed review of available
documentation for each contract, FWC has been involved in
hundreds, if not thousands, of contracts. With respect to contract
performance, where FWC was required to procure insulation, or
any other product or materials, which may or may not have
contained asbestos, FWC would have solicited competitive bids
from various manufacturers, distributors, distributors, suppliers,
or sub-contractors and then issued a purchased order to the
successful bidder, usually with instructions to deliver the
materials to the construction site, where the equipment supplied
by FWC was to be erected or installed. Ordinarily, the
application or installation of insulation or refractory would have
been sub-contracted to others, either by FWC or the .
owner/customer. -

Hence, this is not an instance where FWC manufactured
identifiable lines of producis. This defendant’s business was
dependent on the terms of each contract, Under the
circumstances, it is impossible for FWC to identify all person’s
most knowledgeable with respect to FWC’s use of asbestos
containing products in conjunction with contracts or its
equipment, or subcontracts with insulation or refractory
contractors, The response to this Interrogatory would require a
detailed review of each available document for each contract.”
[Emphasis added.] (June 16, 1997) In Re Complex Asbestos
Litigation, San Francisco Superior Court docket No. 828684,
FOSTER WHEELER CORPORATION’s Responses to
Plaintiff's Standard Interrogatories to All Defendants, Answer to
Interrogatory No. 10 at p. 9-10.

FOSTER maintains thousands of documents regarding its marine and land-based boilers
which it has failed to produce to plaintiff pursuant to General Order No. 129, documents to
which plaintiff is entitled pursuant to this Court’s General Order No. 129 and C.C.P.

§ 2031.010. FOSTER concealed many of the details of its document collections. FOSTER
only produced Robert F. Tracey, defendant’s Person Most Knowledgeable regarding its
document retention policy and repository, after this Court, on its own, raised this issue and
ordered defendant to Produce its Person Most Knowledgeable on January 29, 2008, in the
Davies (SFSC 453387} matter. During plaintiff's deposition of Mr. Tracey on February 11,

Aly woes 029A see. fe9- FOSTER. wed 1

PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL DEFENDANT FOSTER WHEELER LLC (PKA,
FOSTER WHEELER CORPORATION) TO PRODUCE ITS CUSTODIAN OF RECORDS AND PERSON MOST KNOWLEDGEABLE:
KOR DEPOSITION AND TO PRODUCE DOCUMENTS AT DEPOSITIONoO Vv © YT DAH BR WwW

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2008, Mr. Tracey testified that FOSTER’s Record Retention Repository is located in its
headquarters at Perryville Corporate Park, Clinton, New Jersey. Mr. Tracey further testified
that as part of FOSTER’s Record Retention policy it maintains the following: approximately
34,000 banker boxes of business records relating to its marine and land-based boilers in its
Record Retention Repository; 7,000 through 8,000 reels of microfilm of documents deemed of
significant import by a manager to be microfilmed and stored in the Law Offices of Sedgwick in
Newark, New Jersey; an “‘Asbestos-File Library” containing 150 filing cabinets of documents
previously produced in litigation stored in its Perryville Facilities building; and a List of
Manuals for FOSTER’s marine and land-based equipment which FOSTER uses to search for
documents. FOSTER has had and continues to have an obligation to produce these documents
pursuant this Court’s General Order No, 129; yet defendant continues to refuse to do so, forcing
plaintiff into the position where requesting document production relating to each specific
contract and deposing FOSTER’s Person(s) Most Knowledgeable and Custodian(s) of Records
has become necessary in this case.

Plaintiff's Notice complies with C.C.P. § 2017.010, which states:

[a]ny party may obtain discovery regarding any matter, not
cee , that is relevant to the subject matter involved in the
pending action...if the matter either is itself admissible in
evidence or appears reasonably calculated to lead to the discovery
of admissible evidence. Discovery may relate to the claim of any
party to the action... Discovery may be obtained of the identity
and location of persons having knowledge of any discoverable
matter, as well as of the existence, description, nature, custody,
condition, and location of any document, tangible thing, or land
or other property.

Plaintiff's Exhibit A is specific in its identification of the locations, vessels, class of
vessels, plaintiff, and plaintiff's employers. It is in the best interest of each party for plaintiff to
be complete in discovery requests so that repetitious discovery tegarding each vessel is avoided.

The Exhibit A is specific in its identification of “class of vessels” to which the vessels
plaintiff Mr. CASTAGNA worked aboard, have been assigned by the US NAVY. The US
NAVY orders vessels to be built in groups or “classes,” which provides a standard system of
identification. Based on the US NAVY’s orders, such class documents are relevant, responsive
and discoverable and will lead to the discovery of admissible evidence because many
documents responsive to plaintiff's request do not mention a particular vessel in the class but
rather refers to the “class of vessels.” To avoid repetitious discovery regarding each vessel listed
on Exhibit A, plaintiff is seeking discoverable documents and information to the vessel “class”
that the US NAVY has assigned each particular vessel.

Plaintiff's requests are clear, narrowly defined and unambiguous. Defendant has failed
to articulate what, if any, particular terms or meanings of particular categories are vague,
ambiguous or unintelligible to defendant. Each of plaintiff's requests seeks discovery regarding
defendant’s manufacture, distribution, sale, installation, repair, and/or replacement 0:
asbestos-containing products, to which plaintiff Mr. CASTAGNA was exposed. The identity,
distribution, and/or handling of asbestos-containing products by FOSTER are highly relevant in
that this information would provide further information that plaintiff may rely on and further
investigate to substantiate plaintiff's claims against this defendant, as well as other defendants
in this action. An objection of "vague, ambiguous and unintelligible" to a specific request may
be treated as a “nuisance” objection, exposing the responding party to sanctions. Standon
Company, Inc. v. Superior Court (1990) 225 Cal. App.3d 898, 903.

Plaintiff's Notice complies with C.C.P. § 2025.230 in that it describes with reasonable
particularity the matters on which examination is requested so that defendant can appropriately
“designate and produce” individual(s) for deposition. Plaintiff's Notice is sufficiently specific
to enable defendant to identify the individual{s) requested because Piaintifr s deposition notice

is narrowly tailored to the issues of this case. For example, the Exhibit A is specific in its

KAiejuredi 02296\ge-mten dep FOSTER wep 12

PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL DEFENDANT FOSTER WHEELER LLC (FKA.
FOSTER WHEELER CORPORATION) TO PRODUCE ITS CUSTODIAN OF RECORDS AND PERSON MOST KNOWLEDG! LE.
FOR DEPOSITION AND TO PRODUCE DOCUMENTS AT DEPOSITIONDS eo MW A HW BR WN mm

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identification of the locations, vessels, class of vessels, plaintiff, and employers. A defendant’s