On January 05, 2023 a
Party Notice
was filed
involving a dispute between
Dan Albasry
As Trustee Of The Estate Of Newal Al Saad,
Firas Mohammad,
and
Barretts Minerals Inc.,
Beacon Cmp Corp.,
Brenntag Specialties Llc,
Charles B. Chrystal Company Inc.;,
Colgate Palmolive Co.;,
Conopco Inc.,
Glaxosmithkline Consumer Healthcare Holdings,
Glaxosmithkline Llc,
Gsk Consumer Health Inc.,
Lornamead Inc.,
Pfizer Inc.,
Port Jervis Laboratories Inc.,
The Procter & Gamble Co.,
Whittaker, Clark & Daniels Inc.,
Yardley Of London Inc.,
Yardley Of London Ltd.,,
for Torts - Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 03/31/2023 02:47 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 03/31/2023
L ANDMAN C ORSI B ALL AINE & F OR D P.C.
A NEW YORK PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
120 Broadway
CHRISTINA J. HOLZAPFEL ONE GATEWAY CENTER 13th Floor
ASSOCIATE 22ND FLOOR New York, New York 10271
Tel: (212) 238-4800
TEL: 973-623-2700 NEWARK, NJ 07102
EMAIL: cholzapfel@lcbf.com TELEPHONE (973) 623-2700 One Penn Center
FACSIMILE (973) 623-4496 1617 JFK Boulevard, Suite
955
www.lcbf.com Philadelphia, PA 19103
Tel: (215) 561-8540
March 31, 2023
Via NYSCEF
Darron E. Berquist, Esq.
The Lanier Law Firm, PLLC
126 East 56th Street, 6th Floor
New York, NY 10002
Darron.berquist@lanierlawfirm.com
Re: Albasry (Al Saad) v. Barretts Minerals Inc., et al. (190002/2023)
WCD Notice to Preserve and Observe
Dear Mr. Berquist:
We are in receipt of your letter, dated March 10, 2023, objecting to WCD’s Notice to
Preserve and Observe. The CPLR governs discovery in this matter unless there is specific CMO
provision covering the topic(s). See CMO VI. As such, Plaintiff is reminded of CPLR 3101(a),
which requires the full disclosure of “material and necessary” discovery regardless of the burden
of proof.
Case law in NYCAL has interpreted this in talc cases as follows, “Material and necessary
is to be liberally interpreted as requiring disclosure of any relevant facts which will assist trial
preparation.” See, e.g., Young v. Avon Products, Inc., et al. (Index No. 190383/16, Mtn. Seq. #5,
3/13/19). Moreover, the information and materials requested in WCD’s Notice to Preserve and
Observe are responsive and relevant to numerous demands set forth in Defendants’ Fourth
Amended Standard Set if Interrogatories and Request for Production of Documents.
Thus, consistent with WCD’s Notice to Preserve and Observe, WCD objects to any
destructive testing of the products. WCD requests access to the products, chain of custody
information, images of the products, information on weight, and the status of any splits or samples
take from the product.
This request should not be interpreted as a waiver of any spoliation or admissibility
arguments. Furthermore, your letter advises that certain products have been sent for testing. Thus,
4882-5822-3705v.1
1 of 2
FILED: NEW YORK COUNTY CLERK 03/31/2023 02:47 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 03/31/2023
consistent with our formal Notice and the above, WCD demands the right to observe any testing
of the product(s), followed by an opportunity for our experts to inspect the PLM slides / TEM grids
that were used for testing. To that end, WCD’s demand for compliance with its Notice to Preserve
and Observe stands, and Plaintiffs should be guided accordingly.
Regards,
/s/ Christina J. Holzapfel
Christina J. Holzapfel, Esq.
CC: All counsel of record (via NYSCEF)
2
4882-5822-3705v.1
2 of 2
Document Filed Date
March 31, 2023
Case Filing Date
January 05, 2023
Category
Torts - Asbestos
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FILED: NEW YORK COUNTY CLERK 03/31/2023 02:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 03/31/2023 L ANDMAN C ORSI B ALL AINE & F OR D P.C. A NEW YORK PROFESSIONAL CORPORATION ATTORNEYS AT LAW 120 Broadway CHRISTINA J. HOLZAPFEL ONE GATEWAY CENTER 13th Floor ASSOCIATE 22ND FLOOR New York, New York 10271 Tel: (212) 238-4800 TEL: 973-623-2700 NEWARK, NJ 07102 EMAIL: cholzapfel@lcbf.com TELEPHONE (973) 623-2700 One Penn Center FACSIMILE (973) 623-4496 1617 JFK Boulevard, Suite 955 www.lcbf.com Philadelphia, PA 19103 Tel: (215) 561-8540 March 31, 2023 Via NYSCEF Darron E. Berquist, Esq. The Lanier Law Firm, PLLC 126 East 56th Street, 6th Floor New York, NY 10002 Darron.berquist@lanierlawfirm.com Re: Albasry (Al Saad) v. Barretts Minerals Inc., et al. (190002/2023) WCD Notice to Preserve and Observe Dear Mr. Berquist: We are in receipt of your letter, dated March 10, 2023, objecting to WCD’s Notice to Preserve and Observe. The CPLR governs discovery in this matter unless there is specific CMO provision covering the topic(s). See CMO VI. As such, Plaintiff is reminded of CPLR 3101(a), which requires the full disclosure of “material and necessary” discovery regardless of the burden of proof. Case law in NYCAL has interpreted this in talc cases as follows, “Material and necessary is to be liberally interpreted as requiring disclosure of any relevant facts which will assist trial preparation.” See, e.g., Young v. Avon Products, Inc., et al. (Index No. 190383/16, Mtn. Seq. #5, 3/13/19). Moreover, the information and materials requested in WCD’s Notice to Preserve and Observe are responsive and relevant to numerous demands set forth in Defendants’ Fourth Amended Standard Set if Interrogatories and Request for Production of Documents. Thus, consistent with WCD’s Notice to Preserve and Observe, WCD objects to any destructive testing of the products. WCD requests access to the products, chain of custody information, images of the products, information on weight, and the status of any splits or samples take from the product. This request should not be interpreted as a waiver of any spoliation or admissibility arguments. Furthermore, your letter advises that certain products have been sent for testing. Thus, 4882-5822-3705v.1 1 of 2 FILED: NEW YORK COUNTY CLERK 03/31/2023 02:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 03/31/2023 consistent with our formal Notice and the above, WCD demands the right to observe any testing of the product(s), followed by an opportunity for our experts to inspect the PLM slides / TEM grids that were used for testing. To that end, WCD’s demand for compliance with its Notice to Preserve and Observe stands, and Plaintiffs should be guided accordingly. Regards, /s/ Christina J. Holzapfel Christina J. Holzapfel, Esq. CC: All counsel of record (via NYSCEF) 2 4882-5822-3705v.1 2 of 2