Preview
FILED: NEW YORK COUNTY CLERK 03/10/2023 11:47 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/10/2023
NEW YORK
(212) 421-2800
darron.berquist@lanierlawfirm.com
March 10, 2023
Via NYSCEF
Christina J. Holzapfel, Esq.
Landman Corsi Ballaine & Ford PC
One Gateway Center, 22nd Fl.
Newark, NJ 07102
Re: Albasry (Al Saad) v. Barretts Minerals Inc., et al. (190002/2023)
WCD “Notice to Preserve and Observe”
Ms. Holzapfel:
I am in receipt of Whittaker, Clark & Daniels Inc.’s (“WCD”) “Notice to Preserve and
Observe” dated March 9, 2023. Plaintiffs object to and reject said notice for following
reasons:
1. The “Notice to Preserve and Observe” is not an authorized discovery device under
either the CPLR or the CMO. As such, it is improper and void ab initio.
2. Even if it were a proper discovery device, the “Notice to Preserve and Observe”
was served without leave of the Special Master. See CMO § IX(L).
3. The “Notice to Preserve and Observe” is vague, ambiguous, overly broad, unduly
burdensome, premature, and requests information and documents or other
materials that are not within the scope of disclosure (i.e., not material and
necessary in the defense of this action). Plaintiffs further object to the “Notice to
Preserve and Observe” to the extent it requests information or documents that are
protected by the attorney‐client privilege and/or as attorney work product.1
4. As to that portion of the “Notice to Preserve and Observe” related to “tissue
evidence,” be advised that plaintiffs have no intention of obtaining or preserving
any such materials except to the extent such materials already exist and are in their
possession. If such materials are in the custody of a hospital or other medical
facility, it is not plaintiffs’ responsibility to preserve them, as they will not be within
their possession, custody or control. Moreover, and for the same reasons, in
addition to the fact that plaintiffs have made Ms. Al Saad’s medical records
available to defendants via RecordTrak, plaintiffs will not notify WCD, or any other
defendant, of the availability of tissue samples. Additionally, plaintiffs will not
comply with WCD’s “request” that “there be no destruction or alteration of
pathology materials, including but not limited to tissue samples or biopsy material,
1
Pursuant to Rule 202.20‐c, plaintiffs state that these objections are interposed as to the entirety of
the “Notice to Preserve and Observe.” Additionally, due to the vague, ambiguous, overly broad and
unduly burdensome nature of the “Notice to Preserve and Observe,” plaintiffs are unable to identify
whether any specific documents or categories of documents are being withheld.
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as well as any digestive studies,” unless there is insufficient material appropriate
for fiber burden analysis by two laboratories (plaintiffs’ and defendants’).
Certain talc‐based cosmetic products that were in plaintiffs’ custody have been
transferred to a laboratory for analysis. A portion of each of said products will be provided
to defendants upon written request by Friday, March 24, 2023.
To be clear, plaintiffs reject WCD’s “Notice to Preserve and Observe” and will not be
taking any action—or delaying or modifying action—accordingly. Additionally, to the
extent there are any requests or demands in the “Notice to Preserve and Observe,” WCD
can consider them objected to for all the reasons set forth above, as well as because they
are contrary to the scope of discovery WCD is afforded by the CPLR and the CMO. WCD
should be guided accordingly and seek intervention from the Special Master immediately.
If you have any questions or wish to discuss this matter further, please contact me
directly.
Regards,
Darron E. Berquist
cc: All counsel (via NYSCEF))
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FILED: NEW YORK COUNTY CLERK 03/10/2023
03/09/2023 11:47
04:47 AM
PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 40
39 RECEIVED NYSCEF: 03/10/2023
03/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAN ALBASRY, as Trustee of the Estate of X
NEWAL AL SAAD, and FIRAS MOHAMMAD, : Index No. 190002/2023
:
:
Plaintiffs, :
: NOTICE TO PRESERVE
v. : AND OBSERVE
:
BARRETTS MINERALS INC., et al., :
:
Defendants. X
PLEASE TAKE NOTICE that pursuant to New York Civil Practice Law and Rules 3101
and 3120, defendant, Whittaker, Clark & Daniels, Inc. (“WCD”), demands that Plaintiffs, Dan
Albasry, as Trustee of the Estate of Newal Al Saad, and Firas Mohammad, (“Plaintiffs”), produce
and permit the following:
1. WCD formally demands that any of Plaintiffs’ alleged talcum products be preserved in
their present condition and not be modified, sampled, destroyed, or tested in any way until
an agreement can be reached as to the disclosure of protocols and observation of any
planned storage or testing. If the products/samples are modified, sampled, destroyed, or
tested in any way, we reserve all rights to make a Motion for Spoliation and for all
appropriate related relief and sanctions.
2. WCD demands the opportunity to inspect and photograph, in its current location and
condition, any talcum product(s) at issue that were claimed to be in Plaintiff’s possession
before the filing of this lawsuit and which may be identified in Plaintiffs’ Interrogatory
Responses and/or deposition testimony.
3. WCD requests a sworn Affidavit, including the following details: when and where each
product was obtained; a detailed chain of custody from original receipt of each item up to
the present day; a description of the conditions and circumstances in which the product is
alleged to have been stored prior to the commencement of the lawsuit (including who,
what, when, where, and how); a description of the conditions and circumstances (including
who, what, when, where, and how) in which the product is presently stored; and, the exact
amount of product remaining within the container.
4. WCD further requests advanced notice (at least 10 business days) in writing of the
individual expert retained if testing of the aforementioned product(s) is planned to be
performed. If no determination has been made, WCD demands that this information be
provided immediately after such determination has been made.
5. WCD further demands advanced notice (at least 10 business days) of any intention to
remove any portion of the product contents from its container, including any division of
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FILED: NEW YORK COUNTY CLERK 03/10/2023
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PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 40
39 RECEIVED NYSCEF: 03/10/2023
03/09/2023
the remaining product, and demands a third-party neutral be assigned for the division of
such product.
6. WCD requests the following with respect to Plaintiffs’ experts’ testing of any such product
or sample described in the above Paragraphs:
a. Written outline of the testing protocol, including the methods and equipment to
be used, as well as the mineral characterization parameters planned to be used,
and the
b. Opportunity for defendants’ designated representative(s) to be present at any
such testing, to observe, and to record and/or photograph Plaintiffs’ experts’
sample preparation and analysis of the product(s).
PLEASE TAKE FURTHER NOTICE, that WCD demands that Plaintiffs, Dan Albasry, as
Trustee of the Estate of Newal Al Saad, and Firas Mohammad, (“Plaintiffs”), undertake the
following steps to preserve the tissue evidence in this matter:
7. Preserve any and all tissue samples, slides, and block materials and that Plaintiffs
immediately notify WCD with respect to the location of these materials;
8. Preserve any and all radiology materials, including CT scans;
9. Requests that there be no destruction or alteration of pathology materials, including but not
limited to tissue samples or biopsy material, as well as any digestive studies;
10. Additionally, WCD requests that Plaintiffs provide immediate notice, at least 48 hours in
advance, of any autopsy, and provide WCD’s representative with an opportunity to observe
any such procedure.
PLEASE TAKE FURTHER NOTICE, that in the event that you should fail to provide the
above-requested information within thirty (30) days, a motion shall be made seeking appropriate
relief.
PLEASE TAKE FURTHER NOTICE that this is a continuing and ongoing demand.
Dated: March 9, 2023
LANDMAN CORSI BALLAINE & FORD P.C.
By: /s/ Christina J. Holzapfel
Christina J, Holzapfel, Esq.
Attorneys for Defendant,
WHITTAKER, CLARK & DANIELS, INC.
One Gateway Center, 22nd Floor
Newark, New Jersey 07102
(973) 623-2700
TO: All parties via NYSCEF
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FILED: NEW YORK COUNTY CLERK 03/10/2023 11:47 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/10/2023 NEW YORK (212) 421-2800 darron.berquist@lanierlawfirm.com March 10, 2023 Via NYSCEF Christina J. Holzapfel, Esq. Landman Corsi Ballaine & Ford PC One Gateway Center, 22nd Fl. Newark, NJ 07102 Re: Albasry (Al Saad) v. Barretts Minerals Inc., et al. (190002/2023) WCD “Notice to Preserve and Observe” Ms. Holzapfel: I am in receipt of Whittaker, Clark & Daniels Inc.’s (“WCD”) “Notice to Preserve and Observe” dated March 9, 2023. Plaintiffs object to and reject said notice for following reasons: 1. The “Notice to Preserve and Observe” is not an authorized discovery device under either the CPLR or the CMO. As such, it is improper and void ab initio. 2. Even if it were a proper discovery device, the “Notice to Preserve and Observe” was served without leave of the Special Master. See CMO § IX(L). 3. The “Notice to Preserve and Observe” is vague, ambiguous, overly broad, unduly burdensome, premature, and requests information and documents or other materials that are not within the scope of disclosure (i.e., not material and necessary in the defense of this action). Plaintiffs further object to the “Notice to Preserve and Observe” to the extent it requests information or documents that are protected by the attorney‐client privilege and/or as attorney work product.1 4. As to that portion of the “Notice to Preserve and Observe” related to “tissue evidence,” be advised that plaintiffs have no intention of obtaining or preserving any such materials except to the extent such materials already exist and are in their possession. If such materials are in the custody of a hospital or other medical facility, it is not plaintiffs’ responsibility to preserve them, as they will not be within their possession, custody or control. Moreover, and for the same reasons, in addition to the fact that plaintiffs have made Ms. Al Saad’s medical records available to defendants via RecordTrak, plaintiffs will not notify WCD, or any other defendant, of the availability of tissue samples. Additionally, plaintiffs will not comply with WCD’s “request” that “there be no destruction or alteration of pathology materials, including but not limited to tissue samples or biopsy material, 1 Pursuant to Rule 202.20‐c, plaintiffs state that these objections are interposed as to the entirety of the “Notice to Preserve and Observe.” Additionally, due to the vague, ambiguous, overly broad and unduly burdensome nature of the “Notice to Preserve and Observe,” plaintiffs are unable to identify whether any specific documents or categories of documents are being withheld. 2542384_1 1 of 4 FILED: NEW YORK COUNTY CLERK 03/10/2023 11:47 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/10/2023 as well as any digestive studies,” unless there is insufficient material appropriate for fiber burden analysis by two laboratories (plaintiffs’ and defendants’). Certain talc‐based cosmetic products that were in plaintiffs’ custody have been transferred to a laboratory for analysis. A portion of each of said products will be provided to defendants upon written request by Friday, March 24, 2023. To be clear, plaintiffs reject WCD’s “Notice to Preserve and Observe” and will not be taking any action—or delaying or modifying action—accordingly. Additionally, to the extent there are any requests or demands in the “Notice to Preserve and Observe,” WCD can consider them objected to for all the reasons set forth above, as well as because they are contrary to the scope of discovery WCD is afforded by the CPLR and the CMO. WCD should be guided accordingly and seek intervention from the Special Master immediately. If you have any questions or wish to discuss this matter further, please contact me directly. Regards, Darron E. Berquist cc: All counsel (via NYSCEF)) 2 of 4 FILED: NEW YORK COUNTY CLERK 03/10/2023 03/09/2023 11:47 04:47 AM PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 40 39 RECEIVED NYSCEF: 03/10/2023 03/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DAN ALBASRY, as Trustee of the Estate of X NEWAL AL SAAD, and FIRAS MOHAMMAD, : Index No. 190002/2023 : : Plaintiffs, : : NOTICE TO PRESERVE v. : AND OBSERVE : BARRETTS MINERALS INC., et al., : : Defendants. X PLEASE TAKE NOTICE that pursuant to New York Civil Practice Law and Rules 3101 and 3120, defendant, Whittaker, Clark & Daniels, Inc. (“WCD”), demands that Plaintiffs, Dan Albasry, as Trustee of the Estate of Newal Al Saad, and Firas Mohammad, (“Plaintiffs”), produce and permit the following: 1. WCD formally demands that any of Plaintiffs’ alleged talcum products be preserved in their present condition and not be modified, sampled, destroyed, or tested in any way until an agreement can be reached as to the disclosure of protocols and observation of any planned storage or testing. If the products/samples are modified, sampled, destroyed, or tested in any way, we reserve all rights to make a Motion for Spoliation and for all appropriate related relief and sanctions. 2. WCD demands the opportunity to inspect and photograph, in its current location and condition, any talcum product(s) at issue that were claimed to be in Plaintiff’s possession before the filing of this lawsuit and which may be identified in Plaintiffs’ Interrogatory Responses and/or deposition testimony. 3. WCD requests a sworn Affidavit, including the following details: when and where each product was obtained; a detailed chain of custody from original receipt of each item up to the present day; a description of the conditions and circumstances in which the product is alleged to have been stored prior to the commencement of the lawsuit (including who, what, when, where, and how); a description of the conditions and circumstances (including who, what, when, where, and how) in which the product is presently stored; and, the exact amount of product remaining within the container. 4. WCD further requests advanced notice (at least 10 business days) in writing of the individual expert retained if testing of the aforementioned product(s) is planned to be performed. If no determination has been made, WCD demands that this information be provided immediately after such determination has been made. 5. WCD further demands advanced notice (at least 10 business days) of any intention to remove any portion of the product contents from its container, including any division of 4880-2009-0706v.1 1 of 4 3 2 FILED: NEW YORK COUNTY CLERK 03/10/2023 03/09/2023 11:47 04:47 AM PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 40 39 RECEIVED NYSCEF: 03/10/2023 03/09/2023 the remaining product, and demands a third-party neutral be assigned for the division of such product. 6. WCD requests the following with respect to Plaintiffs’ experts’ testing of any such product or sample described in the above Paragraphs: a. Written outline of the testing protocol, including the methods and equipment to be used, as well as the mineral characterization parameters planned to be used, and the b. Opportunity for defendants’ designated representative(s) to be present at any such testing, to observe, and to record and/or photograph Plaintiffs’ experts’ sample preparation and analysis of the product(s). PLEASE TAKE FURTHER NOTICE, that WCD demands that Plaintiffs, Dan Albasry, as Trustee of the Estate of Newal Al Saad, and Firas Mohammad, (“Plaintiffs”), undertake the following steps to preserve the tissue evidence in this matter: 7. Preserve any and all tissue samples, slides, and block materials and that Plaintiffs immediately notify WCD with respect to the location of these materials; 8. Preserve any and all radiology materials, including CT scans; 9. Requests that there be no destruction or alteration of pathology materials, including but not limited to tissue samples or biopsy material, as well as any digestive studies; 10. Additionally, WCD requests that Plaintiffs provide immediate notice, at least 48 hours in advance, of any autopsy, and provide WCD’s representative with an opportunity to observe any such procedure. PLEASE TAKE FURTHER NOTICE, that in the event that you should fail to provide the above-requested information within thirty (30) days, a motion shall be made seeking appropriate relief. PLEASE TAKE FURTHER NOTICE that this is a continuing and ongoing demand. Dated: March 9, 2023 LANDMAN CORSI BALLAINE & FORD P.C. By: /s/ Christina J. Holzapfel Christina J, Holzapfel, Esq. Attorneys for Defendant, WHITTAKER, CLARK & DANIELS, INC. One Gateway Center, 22nd Floor Newark, New Jersey 07102 (973) 623-2700 TO: All parties via NYSCEF 2 4880-2009-0706v.1 2 of 4 4 2