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Full title: Response /Debtor's Reply in Support of Its Motion to Set Date for Substantial Completion of Document Production Hearing scheduled for 07/22/2021 at 9:30 AM at 3-LTB-Charlotte Courthouse (RE: related document(s)1841 Motion (Other) filed by Debtor Bestwall LLC) Filed by Garland S. Cassada on behalf of Bestwall LLC. (Cassada, Garland) (Entered: 07/19/2021)
Document posted on Jul 18, 2021 in the bankruptcy, 15 pages and 0 tables.
Bankrupt11 Summary (Automatically Generated)
Bestwall LLC (“Bestwall” or the “Debtor”) has worked diligently to collect, review, and produce thousands of non-privileged documents and to log thousands more documents that it withheld from production because they are privileged, all in response to the First Set of Requests for Production of Documents (the “Requests”) served upon the Debtor by the official committee of asbestos personal injury claimants (the “Committee”) and Sander L. Esserman, the legal representative for future asbestos claimants (together with the Committee, the “Claimant Representatives”).The Debtor also now projects that it will meet the August 10, 2021 substantial completion date for the production of the balance of claim file documentation called for in response to Requests 1, 3, 4, 5, 6, 14, 15, and 16—claim file documents for “Sample Resolved Mesothelioma Claims.”But there can be no question that the Debtor has worked tirelessly to meet the Claimant Representatives document demands and that the modest adjustments to the dates for substantial completion of production requested in the Motion are appropriate. Nonetheless, in meet and confer conversations, the Debtor agreed to provide a privilege log for documents within the Bates White reliance materials that were redacted or slipsheeted for privilege purposes.This log does not include documents in the Bates White reliance materials that were slipsheeted for reasons other than privilege—such as documents outside of the categories that Bates White requested for its reliance material and duplicate documents.
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Document ContentsUNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION In re: Case No. 17-BK-31795 (LTB) BESTWALL LLC,1 Chapter 11 Debtor. DEBTOR’S REPLY IN SUPPORT OF ITS MOTION TO SET DATE FOR SUBSTANTIAL COMPLETION OF DOCUMENT PRODUCTION The Debtor’s Motion to Set Date for Substantial Completion of Document Production [Dkt. 1841] (the “Motion”) should be granted. Bestwall LLC (“Bestwall” or the “Debtor”) has worked diligently to collect, review, and produce thousands of non-privileged documents and to log thousands more documents that it withheld from production because they are privileged, all in response to the First Set of Requests for Production of Documents (the “Requests”) served upon the Debtor by the official committee of asbestos personal injury claimants (the “Committee”) and Sander L. Esserman, the legal representative for future asbestos claimants (together with the Committee, the “Claimant Representatives”). The Motion asks this Court to extend by not more than 30 days the default date for the Debtor’s substantial completion of document production in response to the Requests, as provided for in the Joint Discovery Plan and Report (ESI Protocol) (the “Discovery Plan”), which is Exhibit 1 to the Case Management Order for Estimation of the Debtor’s Liability for Mesothelioma Claims [Dkt. 1685] (the “Estimation CMO”). The summary of the Debtor’s production efforts and progress set out in its Motion, and updated here, establishes good cause for the modest move of the substantial completion date. 1 The last four digits of the Debtor’s taxpayer identification number are 5815. The Debtor’s address is 133 Peachtree Street, N.E., Atlanta, Georgia 30303.
1Bestwall already has met one of the two dates for substantial completion proposed in the Motion. On July 12, 2021, the Debtor substantially completed production of documents from custodial electronically stored information (“ESI”). The Debtor is on track to substantially complete production of custodial hard copy documents by the new proposed date of July 29, 2021. These dates fall a full two months before the September 30, 2021 close of fact discovery that is set out in the Estimation CMO. The Debtor also now projects that it will meet the August 10, 2021 substantial completion date for the production of the balance of claim file documentation called for in response to Requests 1, 3, 4, 5, 6, 14, 15, and 16—claim file documents for “Sample Resolved Mesothelioma Claims.” That date falls 51 days before the close of fact discovery. If the Claimant Representatives consider this window too narrow for them to complete still further document discovery and depositions, the Debtor will meet-and-confer with them to address appropriate adjustments to the date for the completion of discovery and the dates that follow. But there can be no question that the Debtor has worked tirelessly to meet the Claimant Representatives document demands and that the modest adjustments to the dates for substantial completion of production requested in the Motion are appropriate. A supplemental review of a portion of the relevant production data establishes the good cause for the proposed substantial completion dates. 1. To date, the Debtor has collected and searched roughly 600,000 documents from custodial ESI, has gathered for review approximately 87,000 custodial hardcopy documents, and, to date, has identified 500,000 additional documents for review not yet produced in the corpus of the claim files for “Sample Resolved Mesothelioma Claims” as that term is now defined in the Requests. In total, therefore, the Debtor is assessing over 1.1 million documents for review and
2potential production. To do that job, the Debtor has employed a team of 43 contract attorneys who have reviewed and evaluated documents for approximately 10,000 total hours over the past three months. On top of that is layered the daily additional review efforts of a group of attorneys from the Debtor’s outside counsel at Jones Day and King & Spalding. 2. The Debtor has produced over 116,000 documents (in addition to the more than one million documents in claims and sales records databases produced earlier in the chapter 11 case). The Claimant Representatives complain that many documents have been withheld as privileged. This cannot be surprising, as all of the identified custodians are current or former members of Old GP’s and/or Bestwall’s legal staff or outside defense counsel and the materials relate to the defense and resolution of asbestos product liability lawsuits. 3. As noted and as the Claimant Representatives must concede, the Debtor met the requested July 12, 2021 substantial completion date for the production of documents from custodial ESI, See Objection at 10 n.19. And the Debtor projects that production of the balance of the custodial ESI—that which will be drawn from the files of Sara Turnipseed, now deceased former outside counsel—will be completed by July 23, 2021. 4. The Claimant Representatives argue that 75 days for substantial completion of production was central to their case planning and the advancement of the case to hearing. Objection at 2-3. But contemplating that requests yet to be served may be broad and the effort required to respond to them could be material, the Discovery Plan expressly recognizes that 75 days might not be sufficient time to substantially complete production: Document Production. Productions of documents shall commence within 30 days of service of the Requests to the Party responding to the Requests (the “Responding Party”), be made on a rolling basis and, subject to the following sentence, be substantially completed within 75 days of service of the Requests. Within 14 days of service of Requests, the Parties shall meet and confer
3regarding the propriety of the 75-day deadline for substantial completion of production in response to such Requests. If the Parties agree to a modification of the deadline, the deadline shall be changed in accordance with the Parties’ agreement. If the Parties are unable to reach an agreement, the Party requesting a change may ask the Court, by motion, to set the substantial completion deadline. Discovery Plan ¶ 2 (emphasis added). The Debtor’s Motion merely invokes the post-meet-and-confer language of the Discovery Plan and “asks the Court . . . to set the substantial completion deadline.” 5. The Debtor has been transparent about its efforts throughout the discovery process. The Debtor informed the Claimant Representatives in April that, given the number and nature of the Requests, substantial completion within 75 days would be “more than materially challenging.” April 30, 2021 Email from J. Jones to S. Zieg, et al. (Motion Ex. C). Since April 29, 2021, there have been nine meet-and-confer discussions between the Debtor and the Claimant Representatives about estimation discovery, including the substantial completion date, in addition to multiple exchanges of emails and correspondence. The Debtor remains committed to transparency and to concluding its production efforts and advancing this proceeding to hearing as swiftly and efficiently as practicable. 6. The Claimant Representatives complain that the Debtor’s request to adjust the default dates for substantial completion, without a concomitant request to change other case deadlines, is an attempted “manipulat[ion]” of the schedule. Objection at 21. But, as noted, the proposed substantial completion dates remain well within the fact discovery period, and the Debtor has made clear that it will meet and confer with the Claimant Representatives about any prudent adjustments to other dates in the Estimation CMO they wish to discuss. During a
4meet-and-confer call held today, this issue was raised with the Claimant Representatives, and discussions of this issue are ongoing.2 7. The Claimant Representatives criticize the Debtor for not addressing the due dates for producing claims files and privilege logs in the Motion. But the Debtor did address the claim file effort and substantial completion dates for claim file documentation at page 7, fn.3 of the Motion. And the Debtor essentially repeats that text in this Reply. 8. The Debtor projects that the claim file document production will be substantially complete on or before August 10. The Claimant Representatives’ assert that the Debtor’s production of claims files should have been substantially completed by June 29, 2021, but that is inaccurate. “Sample Resolved Mesothelioma Claims” was undefined in the Requests served on April 15, 2021. See Motion at 7 n.3; see also Requests, Definition 27 (“Sample Resolved Mesothelioma Claims” shall mean the sample set of mesothelioma claims, to be identified by the Committee and FCR, that the Debtor or Old GP resolved through settlement or verdict before the Petition Date”) (emphasis added). The Claimant Representatives concede that it took them 42 additional days—until May 27, 2021—to identify the claims that make up the “Sample Resolved Mesothelioma Claims,” so that Debtor could respond to the Claims File Requests. See Objection at 15. Under the Discovery Plan, the default date for substantial completion of the documents in the claims files, therefore, runs to August 10, 2021—i.e., 75 days after May 27, 2 As the Claimant Representatives are aware, the schedule embodied in the Estimation CMO was premised in part on the Debtor’s timely receipt of discovery from trusts, through subpoenas, and claimants, via personal injury questionnaires. The trusts and claimants have engaged in significant efforts in courts around the country to prevent the Debtor from obtaining this Court-ordered discovery, which already has threatened the negotiated schedule. Multiple law firms representing claimants on the Committee have participated in these efforts. While the Claimant Representatives already have received hundreds of thousands of pages of materials from the Debtor through its good faith efforts to address the extensive Requests, as well as commitments from the Debtor to complete the remaining discovery as promptly as possible, to date the Debtor still has received virtually no discovery.
52021. See Discovery Plan ¶ 2. The Debtor will meet this deadline and, therefore, needed and sought no further relief in this regard.3 9. The Claimant Representatives’ complaints about the timing of privilege log service also are misplaced. The Claimant Representatives say that there has been “delay in producing privilege logs. See Objection at 20. This is just not so. The Debtor has not missed any deadlines for the service of privilege logs.4 10. Under the Discovery Plan, as the Claimant Representatives concede, a party “shall provide a privilege log” “[w]ithin 45 days of each production[.]” Discovery Plan ¶ 7; see also Objection at 20 n.45. On May 17, 2021, the Debtor made its initial production in response to the Requests. See May 17, 2021 Email from D. Schneider to S. Zieg, et al. (Motion Ex. F). On July 1, 2021, 45 days after that production date, the Debtor served the privilege logs that related to the materials produced on May 17, 2021. See July 1, 2021 Production Cover Email from G. Antine to S. Zieg, et al. (attached as Exhibit A). The Debtor made another production from custodial documents on June 25, 2021. See June 25, 2021 Production Cover Email from J. Kaplan to S. Zieg, et al. (attached as Exhibit B). Under the Discovery Plan, the privilege log for that production is due 45 days later, on August 9, 2021. The Debtor intends to meet that date. 11. Indeed, to accommodate the Claimant Representatives, on July 17, 2021, the Debtor produced a privilege log with 7,058 entries corresponding to privileged documents 3 The Claimant Representatives accusation that the Debtor “cherry picked” documents from claims files to provide to its expert, Bates White, is groundless. See Motion at 9, 15. As the Debtor has informed the Claimant Representatives numerous times, the approximately 85,000 documents provided to Bates White and produced to the Claimant Representatives were simply the documents requested by Bates White for its review. See, e.g., March 31, 2021 Letter from S. Pratt (Motion Ex. J). The Debtor is in the process of reviewing for production the claim file documents that Bates White did not request. 4 The Debtor, however, has alerted the Claimant Representatives that a categorical privilege log makes sense here because of the breadth of the documents requested and that fact that all custodians are lawyers or legal personnel. So far, the Debtor has identified more than 120,000 documents that must be logged from ESI and hard copy documents collected.
6withheld or redacted from the file documents produced to Bates White and then to Claimant Representatives. See July 17, 2021 Production Cover Email from K. Crandall to S. Zieg, et al. (attached as Exhibit C). Pursuant to the Discovery Plan, the Debtor intends to serve a timely privilege log for its July 7 and July 12, 2021 productions on August 23, 2021. The Discovery Plan allows for 45 days after each production for a privilege log, and the Debtor has met—and expects it will continue to meet—that default timeframe.5 12. For all of the reasons set forth in the Motion and above, the Debtor requests that this Court grant the Motion by entering the proposed order attached as Exhibit K to the Motion and grant such other and further relief to the Debtor as the Court determines is appropriate. 5 The Claimant Representatives state that they “are willing to forego [sic] privilege logs and accept production of all documents, including privileged documents, by July 29, subject to entry of an order pursuant to Rule 502(d) of the Federal Rules of Evidence.” Objection at 5. As is the Debtor’s right, it has not agreed to produce documents protected from disclosure by the attorney-client privilege or other privileges.
7Dated: July 19, 2021 Respectfully submitted, Charlotte, North Carolina /s/ Garland S. Cassada Garland S. Cassada (NC Bar No. 12352) Richard C. Worf, Jr. (NC Bar No. 37143) ROBINSON, BRADSHAW & HINSON, P.A. 101 North Tryon Street, Suite 1900 Charlotte, North Carolina 28246 Telephone: (704) 377-2536 Facsimile: (704) 378-4000 E-mail: firstname.lastname@example.org email@example.com Gregory M. Gordon (TX Bar No. 08435300) JONES DAY 2727 North Harwood Street, Suite 500 Dallas, Texas 75201 Telephone: (214) 220-3939 Facsimile: (214) 969-5100 E-mail: firstname.lastname@example.org (Admitted pro hac vice) Jeffrey B. Ellman (GA Bar No. 141828) JONES DAY 1221 Peachtree Street, N.E., Suite 400 Atlanta, Georgia 30361 Telephone: (404) 581-3939 Facsimile: (404) 581-8330 E-mail: email@example.com (Admitted pro hac vice) ATTORNEYS FOR DEBTOR AND DEBTOR IN POSSESSION
9rom: Greg Antine <GAntine@KSLAW.com> ent: Thursday, July 1, 2021 3:28 PM o: Zieg, Sharon; Jones, James M.; Schneider Richard (King & Spalding - Atlanta, GA)c: Del Medico, Jennifer L.; 'Ramsey, Natalie D.'; Bradley, Elisabeth; Kaplan, Jeff A.; Rohrer, Nicholas J.; Loughman, Paul; Gordon, Gregory M.; Ellman, Jeffrey B.; Cassada, Garland; 'Wright, Davis L.'; Edwards, Erin; Harron, Edwin; Tucker John (King & Spalding - AtlantaGA); Ernest Clements ubject: Bestwall: Debtor's Rolling Production for July 1, 2021haron and Company: nclosed please find the “Bestwall‐ized” NYCAL privilege logs. e provided three logs and an accompanying family matching list on two occasions in NYCAL ‐ one set on May 31, 2011nd another set on March 9, 2012. he logs were a General Privilege Log (also referred to as the Non‐Invoice Log), an Invoice Privilege Log and a Redaction og, accompanied by a family matching list. e are producing Bestwall‐ized versions of all of the foregoing. the materials presented on the dispute over in camera review, we divided the May 31, 2011 General Log into two gs — one for internal communications and communications with retained experts. We will produce those exhibits to ou with our production of NYCAL pleadings as noted in our email on June 29. veryone receiving this email can use the credentials previously received and zip file password in connection with the ebtor's production on May 17th to access today's production of “Bestwall‐ized” NYCAL privilege logs on the below FTPite. FTP Address: https://kingspalding.ftptoday.com orkspace: /Bestwall_Productions/ reg Antine on behalf of Doc Schneider ing & Spalding Confidentiality Notice: his message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may ntain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not uthorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender mediately by e-mail and delete all copies of the message. Click here to view our Privacy Notice.
11rom: Kaplan, Jeff A. ent: Friday, June 25, 2021 4:37 PM o: 'SZIEG@ycst.com'; NRamsey@rc.com; Bradley, Elisabeth; 'NRohrer@ycst.com'; 'firstname.lastname@example.org'; Wright, Davis L.; Edwards, Erin c: Jones, James M.; Gordon, Gregory M.; Del Medico, Jennifer L.; Ellman, Jeffrey B.; Garland Cassada (GCassada@rbh.com); Schneider Richard (King & Spalding - Atlanta, GA); Tucker John (King & Spalding - Atlanta, GA); Clements, Ernest; Handley, Danubject: Bestwall: Debtor's 6/25/21 Rolling Production haron and all: t the link below, you will find in a zip file a production of certain documents in response to the Official Committee of sbestos Claimants' and the Future Claimants' Representative’s First Set of Document Requests Directed to the Debtor. SFTP Address: https://kingspalding.ftptoday.com Workspace: /Bestwall_Productions/ veryone receiving this email can use the credentials previously received in connection with the Debtor's production onay 17th to access today's production on the above FTP site. After you enter your supplied Login User Name and Loginassword, the FTP Today site will send an email from email@example.com with a one‐time‐use passcode to nter. Please ensure firstname.lastname@example.org is in your contacts or on your safesender or authorized sender list. s with the May 17th production, the zip file on the FTP site opens with 7‐Zip or similar file extracting applications. To se 7‐Zip to extract the files, right‐click on the downloaded Estimation Volume 3.zip file and choose 7‐zip ‐> ‘Extract ere’ or ‘Extract files…’ . The Estimation Volume 3.zip production file’s password is the same as the 20210517_01.zip roduction file’s password in connection with the Debtor's May 17th production. ertain documents in this production have been marked “CONFIDENTIAL” and “PROFESSIONALS’ EYES ONLY,” as those rms are used in the Agreed Protective Order Governing Confidential Information [Docket No. 337] (the “Protective rder”) signed by the parties and entered by the Bankruptcy Court. We ask that you afford all documents carrying thesesignations the protections to which they are entitled under the Protective Order. est regards, ff effrey A. Kaplan, Jr. (bio) ssociate NES DAY® - One Firm Worldwide℠ 221 Peachtree Street, N.E., Suite 400 tlanta, Georgia 30361 ffice +1.404.581.8325
13KCrandall@robinsonbradshaw.com 704.377.8129 : Direct Phone 704.339.3429 : Direct Fax July 16, 2021 VIA E-MAIL Natalie Ramsey, Esq. Edwin J. Harron Davis Wright, Esq. Sharon M. Zieg Robinson & Cole LLP Young Conaway Stargatt & Taylor, LLP 1201 North Market Street, Suite 1406 1000 North King Street Wilmington, DE 19801 Wilmington, DE 19801 email@example.com firstname.lastname@example.org email@example.com firstname.lastname@example.org Re: In re Bestwall LLC, Case No. 17-31795 (Bankr. W.D.N.C.) Dear Counsel: In accordance with paragraph 3(e) of the Case Management Order for Estimation of the Debtor’s Mesothelioma Liability (Dkt. 1685) (the “CMO”), on April 15 and April 30, 2021, the Debtor produced reliance materials that Bates White requested and received for 2,238 resolved mesothelioma claims. Bates White did not request, and did not receive, any privileged documents. Nonetheless, in meet and confer conversations, the Debtor agreed to provide a privilege log for documents within the Bates White reliance materials that were redacted or slipsheeted for privilege purposes. See, e.g., 6/24/2021 Email from Debtor’s Counsel. That privilege log is enclosed. This log does not include documents in the Bates White reliance materials that were slipsheeted for reasons other than privilege—such as documents outside of the categories that Bates White requested for its reliance material and duplicate documents. ROBINSON, BRADSHAW & HINSON, P.A. : robinsonbradshaw.com
14Page 2 Sincerely, ROBINSON, BRADSHAW & HINSON, P.A. Kevin R. Crandall Enclosure cc: Gregory M. Gordon Jeffrey B. Ellman James M. Jones Garland S. Cassada Richard C. Worf, Jr. Mark P. Goodman M. Natasha Labovitz