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Full title: Objection to Other Document (RE: related document(s)1924 Motion (Other) filed by Debtor Bestwall LLC) filed by Felton Parrish on behalf of Sander Esserman. (Attachments: # 1 Exhibit 1 # 2 Exhibit 2 # 3 Exhibit 3) (Parrish, Felton) (Entered: 08/20/2021)

Document posted on Aug 19, 2021 in the bankruptcy, 10 pages and 0 tables.

Bankrupt11 Summary (Automatically Generated)

The DCPF Trusts are: Armstrong World Industries Asbestos Personal Injury Settlement Trust; Babcock & Wilcox Company Asbestos Personal Injury Settlement Trust; Celotex Asbestos Settlement Trust; DII Industries, LLC Asbestos PI Trust (Halliburton, Harbison-Walker Subfunds); Federal Mogul U.S. Asbestos Personal Injury Trust (T&N, FMP, Flexitallic, Ferodo); Flintkote Asbestos Trust; Owens Corning Fibreboard Asbestos Personal Injury Trust (FB and OC Subfunds); Pittsburgh Corning Corporation Asbestos PI Trust; United States Gypsum Asbestos Personal Injury Settlement Trust; and WRG Asbestos PI Trust.The information that the Debtor sought by the Original Trust Motion that this Court granted is not the same information that the Debtor seeks by this Motion. 6 Attached to the Motion as Exhibit E. 10.The Debtor only later revealed that its focus in the estimation proceeding is centered on a 2,407 claim sample of all resolved Bestwall claims, specifically “35 verdicts, 1,466 settled claims, and 906 dismissed claims” that the Debtor defined as the “Bestwall Random Sample.”Notwithstanding its focus on the Bestwall Random Sample, the Debtor continues to assert that its “experts will use all of the data for the 15,000 Bestwall Claimants,” explaining that discovery of the 15,000 claims “will permit exploration not only of inconsistencies and failures of disclosure in individual cases, but also important aggregate level issues, such as the extent to which claimants delayed filing their Trust claims while they litigated against Bestwall, and whether claimants who did so received higher settlement payments.”The Debtor made the same inaccurate representation to the Delaware District Court; however, to that court, the Debtor at least noted that there was a dispute: “Earlier today, counsel for the asbestos claimants’ committee sent written notice to Bestwall that it does not agree that the settled claims in the sample Bestwall and the future claimants’ representative are working with in the bankruptcy case can be used as the random sample for purposes of Trust discovery as ordered by this Court.

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UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION In re Chapter 11 BESTWALL LLC1 Case No. 17-31795 (LTB) Debtor. THE OFFICIAL COMMITTEE OF ASBESTOS CLAIMANTS’ AND THE FUTURE CLAIMANTS’ REPRESENTATIVES’ LIMITED OBJECTION TO THE DEBTOR’S MOTION TO AUTHORIZE ISSUANCE AND SERVICE OF NEW SUBPOENAS The Official Committee of Asbestos Claimants (the “Committee”) and Sander L. Esserman, in his capacity as the Future Claimants’ Representative (the “FCR” and collectively with the Committee, the “Claimants’ Representatives”), by and through their undersigned counsel, hereby file this limited objection (the “Limited Objection”) to the Debtor’s Motion to Authorize Issuance and Service of New Subpoenas [Dkt. No. 1924] (the “Motion”) filed by Bestwall LLC (referred to herein interchangeably as “Bestwall” or “Debtor”). In support of their Limited Objection, the Claimants’ Representatives state as follows: PRELIMINARY STATEMENT2 The Claimants’ Representatives do not understand the procedural basis for—or even the need for—the Motion. At the Debtor’s request, and over the Claimants’ Representatives’, DCPF’s, and the Manville Trust’s many objections, this Court already authorized the Debtor to issue subpoenas for specific trust-related discovery against DCPF, the DCPF Trusts, and the Manville Trust. The United States District Court for the District of Delaware (the “Delaware District 1 The last four digits of the Debtor’s taxpayer identification number are 5815. The Debtor’s address is 133 Peachtree Street, N.W., Atlanta, GA 30303. 2 Any capitalized term not defined in this section shall have the meaning ascribed to it herein or in the Motion.

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Court”), in turn, quashed the initial subpoenas and instructed the Debtor to issue new subpoenas that complied with existing Third Circuit case law. Instead of issuing new subpoenas consistent with the Delaware District Court’s decision, the Debtor—without citing any statute, rule, or case law in support of the Motion3—asks this Court to authorize the issuance of new subpoenas. The Motion goes far beyond simply notifying the Court that the Debtor intends to issue new subpoenas. Instead, the Motion is an effort to have this Court issue an improper advisory opinion, or a ruling on an incomplete record, concerning matters that are in dispute and cannot be resolved on a limited record. The Claimants’ Representatives are compelled to submit this Limited Objection to preserve their objection to any advisory opinion, or ruling on a limited record, concerning the nature of the 1,501 claims files that are the subject of the new subpoenas.4 RELEVANT BACKGROUND 1. On July 30, 2020, the Debtor filed a Motion for Bankruptcy Rule 2004 Examination of Asbestos Trusts [Dkt. No. 1237] (the “Original Trust Motion”). The Claimants’ Representatives objected to this Motion [Dkt. Nos. 1327, 1328, 1510, & 1511], as did the Manville Personal Injury Settlement Trust and Delaware Claims Processing Facility [Dkt. No. 1321]. 2. On January 19, 2021, the Court ordered the estimation of “the Debtor’s aggregate liability for current and future mesothelioma claims that (a) arose, in whole or part, from alleged exposure to joint compound products that contained asbestos either as a constituent ingredient or an alleged contaminant and (b) were manufactured and sold by the Debtor or its predecessors on 3 Notwithstanding the fact that the Motion does not provide any statutory predicates for the relief sought therein, the proposed order, attached as Exhibit A to the Motion, seeks a finding that the relief sought in the Motion is authorized pursuant to Federal Rules of Bankruptcy Procedure 2004 and 9016. 4 The Claimants’ Representatives continue to dispute that any trust discovery under Rule 2004 is appropriate. To the extent the Debtor is seeking an order pursuant to Rule 2004, its Motion fails to demonstrate that it has met any of the threshold requirements of Rule 2004 and the Claimants’ Representatives reserve the right to litigate this issue once it has been properly presented to the Court for determination.

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or before December 31, 1977 (the “Pre-1978 Asbestos-Containing Joint Compound Products”). See Dkt. No. 1577, at ¶ 1. 3. The Court granted the Original Trust Motion on March 24, 2021 [Dkt. No. 1672], and the Debtors subsequently issued subpoenas (the “Original Subpoenas”) on (1) the Delaware Claims Processing Facility (“DCPF”), (2) ten individual asbestos trusts5 whose claims are handled by DCPF (the “DCPF Trusts”), and (3) the Manville Personal Injury Settlement Trust (the “Manville Trust”). See Dkt. No. 1698. 4. On April 19, 2021, the DCPF Trusts, joined by dozens of firms purporting to represent over 10,000 Bestwall Claimants, moved in the United States District Court for the District of Delaware to quash or modify the subpoenas served on DCPF and the DCPF Trusts (the “Motion to Quash”). See generally In re Bestwall LLC, Case No. 1:21-mc-00141CFC (D. Del.). 5. On June 1, 2021, the Delaware District Court granted the Motion to Quash. See In re Bestwall LLC, No. 17-BK-31795 (LTB), 2021 WL 2209884, at *1 (D. Del. Jun. 1, 2021). Although it quashed the original subpoenas, the Delaware District Court did authorize the Debtor to issue new subpoenas that addressed the concerns raised by the District Court and in with accordance with prior case law in the district regarding access to confidential information: In re Owens Corning, 560 B.R. 229 (Bankr. D. Del. 2016) (the “Access Decision”). See 2021 WL 2209884, at *7 (“Motion to Quash is granted without prejudice to Bestwell’s [sic] right to seek reissuance of the subpoenas seeking a narrower document production that is consistent with the protections afforded by the Bankruptcy Court’s Access Decision.”). 5 The DCPF Trusts are: Armstrong World Industries Asbestos Personal Injury Settlement Trust; Babcock & Wilcox Company Asbestos Personal Injury Settlement Trust; Celotex Asbestos Settlement Trust; DII Industries, LLC Asbestos PI Trust (Halliburton, Harbison-Walker Subfunds); Federal Mogul U.S. Asbestos Personal Injury Trust (T&N, FMP, Flexitallic, Ferodo); Flintkote Asbestos Trust; Owens Corning Fibreboard Asbestos Personal Injury Trust (FB and OC Subfunds); Pittsburgh Corning Corporation Asbestos PI Trust; United States Gypsum Asbestos Personal Injury Settlement Trust; and WRG Asbestos PI Trust.

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6. On June 17, 2021, the Delaware District Court issued an order clarifying its June 1, 2021 opinion. Order, In re Bestwall LLC, No. 21-141 (D. Del. Jun. 17, 2021) [Del. Dkt. No. 33].6 The District Court required any revised subpoena issued “by Bestwall, LLC must: (i) limit the production of Trust Claimants' data to a random sample of no more than 10% of the 15,000 mesothelioma victims at issue; (ii) authorize the Delaware Claims Processing Facility, or a neutral third party, to anonymize the Trust Claimants' data before producing it, and (iii) include additional protections consistent with the Access Decision.” See id. at ¶ 2. 7. On July 29, 2021, the Debtor filed the instant Motion in this Court. OBJECTION 8. The Claimants’ Representatives object to the Debtor’s purported “facts” asserted in its Motion that, in reality, reflect only a limited, one-sided perspective on matters that remain in dispute. The Debtor’s assertions cannot be taken as true, or ruled to be true, on an incomplete record for an improper Motion. A. This Court Has Not Previously Ruled on Its Authority to Issue Subpoenas for the 1,501 Claim Subset and Should Not Do So on This Motion. 9. The Claimants’ Representatives dispute the Debtor’s assertion that “[t]his Court has already determined that it has the authority to approve the issuance and service of subpoenas to the Trusts for the information described in this Motion.” Motion ¶ 17 (emphasis added). This Court has not already determined that it has the authority to issue the new subpoenas requesting the information described in this Motion. The information that the Debtor sought by the Original Trust Motion that this Court granted is not the same information that the Debtor seeks by this Motion. 6 Attached to the Motion as Exhibit E.

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10. The Original Trust Motion sought extensive personal information concerning the trust filings of “approximately 15,000 individuals whose mesothelioma claims the Debtor or [Old GP] resolved through settlement or verdict before the commencement of this case,” defining them as the “Bestwall Claimants.” Original Trust Motion at 1. The Debtor only later revealed that its focus in the estimation proceeding is centered on a 2,407 claim sample of all resolved Bestwall claims, specifically “35 verdicts, 1,466 settled claims, and 906 dismissed claims” that the Debtor defined as the “Bestwall Random Sample.” Motion Ex. G ¶ 20. Notwithstanding its focus on the Bestwall Random Sample, the Debtor continues to assert that its “experts will use all of the data for the 15,000 Bestwall Claimants,” explaining that discovery of the 15,000 claims “will permit exploration not only of inconsistencies and failures of disclosure in individual cases, but also important aggregate level issues, such as the extent to which claimants delayed filing their Trust claims while they litigated against Bestwall, and whether claimants who did so received higher settlement payments.” Motion ¶ 19 & n. 11 (citing Original Trust Motion ¶ 17). 11. The current Motion seeks information concerning only 1,501 claims out of the original 15,000 (the “1,501 Claim Set”). The Debtor has not even attempted to identify the usefulness of the 1,501 Claim Subset, which represents only a subset of the Bestwall Random Sample—including 1,501 verdicts and settled claims, and expressly excluding information concerning the 906 dismissed claims. Motion ¶ 19. Accordingly, it is incorrect to say that this Court has already determined that it has the authority to approve issuance and service of subpoenas seeking information concerning the 1,501 Claim Subset that has been identified for this Court for the first time in this Motion. This Court has not ruled on the relevance or reasonableness of the 1,501 Claim Subset or that there is good cause for discovery concerning the 1,501 Claim Subset,7 7 See Original Trust Motion ¶ 10 (“A proposed Rule 2004 examination ‘must be both relevant and reasonable’ and ‘may not be used to annoy, embarrass or oppress the party being examined.’ Some courts require ‘good cause’ before they will authorize a Rule

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and it should not. Though the Debtor’s proposed form of order indicates that the Court will issue it “pursuant to Rule 2004,”8 the Debtor has made no effort to demonstrate that it has satisfied the requirements for Rule 2004, denying the Claimants’ Representatives an adequate opportunity to respond to a Rule 2004 motion.9 B. The Parties Are Not Already Using the 1,501 Claim Subset in the Estimation Proceeding as a Random, Representative Sample. 12. The Claimants’ Representatives disagree with the Debtor’s assertion that its new subpoenas seek a “random, representative sample” that “the parties already are using in the estimation proceeding in connection with the review of underlying claim files.” Motion at 5 (emphasis in original).10 As the Debtor’s own expert admits, the 1,501 Claim Subset that is the subject of the new subpoenas, which numerically accounts for approximately 10% of the Bestwall Claims that were the subject of the original subpoenas, is not a representative sample of Bestwall’s claim resolution history. The parties have not agreed that the 1,501 Claim Subset is an appropriate sample for use in the estimation proceeding. In the absence of a full hearing on a procedurally proper motion, this Court cannot determine that “[t]he subpoenas seek evidence that is relevant to 2004 examination.”) (quoting In re Symington, 209 B.R. 678, 684-85 (Bankr. D. Md. 1997); In re Hammond, 140 B.R. 197, 201 (S.D. Ohio 1992)). 8 Motion at Ex. A ¶ 3. 9 Notably, the Debtor has not sought to “interpret, modify, apply, [or] enforce” the Court’s Trust Order. Order Granting Debtor’s Motion for Bankruptcy Rule 2004 Examination of Asbestos Trusts and Governing Confidentiality of Information Provided in Response ¶ 16 [Docket No. 1672]. 10 The Debtor made the same inaccurate representation to the Delaware District Court; however, to that court, the Debtor at least noted that there was a dispute: “Earlier today, counsel for the asbestos claimants’ committee sent written notice to Bestwall that it does not agree that the settled claims in the sample Bestwall and the future claimants’ representative are working with in the bankruptcy case can be used as the random sample for purposes of Trust discovery as ordered by this Court. Committee counsel’s letter also appears to indicate that, as a result of this Court’s Orders, the asbestos committee may no longer agree to use of the sample in the bankruptcy case.” Bestwall LLC’s Motion to Amend Prior Orders to Approve Revised Subpoena for Asbestos Trust Data, In re Bestwall LLC, No. 21-141 (D. Del. Jun. 29, 2021) [Del. Dkt. No. 36].

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specific purposes in connection with estimation and the negotiation, formulation, and confirmation of a plan of reorganization in this case” as the Debtor seeks in its proposed form of order.11 13. As an initial matter, the 1,501 Claim Subset excludes an entire category of claims—the dismissed claims—that the Debtor’s own expert determined were “fundamental” to a “representative sample of Bestwall’s resolution history”: “Selecting cases resolved through verdict, cases settled at all levels of amounts, and cases dismissed by the claimants is fundamental for having a representative sample of Bestwall’s resolution history.” Motion Ex. G ¶ 18 (emphasis added). 14. Perhaps more critically, the usefulness of the 1,501 Claim Subset is further limited because it is weighted toward higher-value settlements and verdicts and is under-inclusive of lower-value settlements and verdicts. To address the under-representation of lower-value settlements and verdicts, the Claimants’ Representatives’ asked the Debtor to add 500 claims to the 2,407 Bestwall Random Sample.12 As explained to the Debtor, the 500 claims included “additional claims so that the overall sample size . . . for each of the 5 groups between $150K and $400K, is 110”; random sampling “from the three most underrepresented groups (other than the ‘less than $50K’ group) until the overall sampling rate . . . in each of the three groups was 17%”; and random sample of “39 claims from the ‘less than $50K’ group.”13 The 1,501 Claim Subset, which was derived by simply excluding the dismissed claims from the original 2,407 claims in the 11 Motion at Ex. A ¶ 3. 12 See E-mail from S. Zieg to J. Jones dated May 27, 2021, attached hereto as Exhibit 1 (seeking discovery concerning the 2,401 claims in the Bestwall Random Sample “and an additional 500 claimants from LAS and Ankura”). 13 E-mail from S. Zieg to J. Jones dated July 8, 2021, attached hereto as Exhibit 2 (describing “how the additional 500 claims were selected”).

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Bestwall Random Sample,14 includes none of the additional 500 claims that the Claimants’ Representatives requested. 15. Further, it also is inaccurate for the Debtor to say that the parties are using the 1,501 Claim Subset for purposes of the estimation proceeding when the Debtor has refused to produce its own documents concerning these claims to the extent the documents are dated earlier than January 1, 2011, involving as many as 58% of the claims.15 Though the Debtor has now indicated that it is willing to produce documents dated 2003 or later,16 it only offered to do so after the Claimants’ Representatives filed their Motion to Compel Production of Documents [Docket No. 1968] and ignores that the Bestwall Random Sample (including the 1,501 Claim Subset) includes claims filed as early as 1983. The Debtor should not be permitted to obtain third-party discovery from the Trusts while at the same time it refuses to collect and produce documents concerning the claims from its own files. 16. With these issues outstanding, and the absence of a full hearing to resolve them and other issues concerning an appropriate sample of claims for purposes of this estimation proceeding, it is inaccurate for the Debtor to say that the 1,501 Claim Subset is a “random, representative sample” that “the parties already are using in the estimation proceeding in connection with the review of underlying claim files.” The Court cannot take these statements to be true, or determine them to be true, in the context of an in incomplete record on a procedurally improper Motion. 14 See Motion ¶ 18. 15 See Motion to Compel Production of Documents ⁋ 29 [Docket No. 1968] (the “Motion to Compel”). 16 See E-mail from J. Jones to S. Zieg dated August 10, 2021, attached hereto as Exhibit 3.

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CONCLUSION WHEREFORE, for reasons set forth herein, the Claimants’ Representatives respectfully request that the Court: (i) enter an order denying the Debtor’s Motion; and (ii) grant such other relief as is just and appropriate. [Signatures on Following Page]

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Dated: Charlotte, North Carolina August 20, 2021 /s/ Glenn C. Thompson /s/ Felton E. Parrish Glenn C. Thompson (Bar No. 37221) Felton E. Parrish (NC Bar No. 25448) HAMILTON STEPHENS STEELE ALEXANDER RICKS PLLC + MARTIN, PLLC 1420 E. 7th Street, Suite 100 525 North Tyron Street, Suite 1400 Charlotte, North Carolina 28204 Charlotte, North Carolina 28202 Telephone: 704-365-3656 Telephone: (704) 344-1117 Facsimile: 704-365-3676 Facsimile: (704) 344-1483 Email: felton.parrish@alexanderricks.com Email: gthompson@lawhssm.com -and- -and- James L. Patton, Jr. (Delaware Bar No. 2202) Linda W. Simpson (Bar No. 12596) Edwin J. Harron (Delaware Bar No. 3396) JD THOMPSON LAW Sharon M. Zieg (NC Bar No. 29536) Post Office Box 33127 Travis G. Buchanan (Delaware Bar No. 5595) Charlotte, North Carolina 28233 YOUNG CONAWAY STARGATT & Telephone: (828) 489-6578 TAYLOR, LLP Email: lws@jdthompsonlaw.com Rodney Square 1000 North King Street -and- Wilmington, Delaware 19801 Telephone: (302) 571-6600 Natalie D. Ramsey (DE Bar No. 5378) Facsimile: (302) 571-1253 Davis Lee Wright (DE Bar No. 4324) Email: jpatton@ycst.com ROBINSON & COLE LLP eharron@ycst.com 1201 N. Market Street, Suite 1406 szieg@ycst.com Wilmington, Delaware 19801 tbuchanan@ycst.com Telephone: (302) 516-1700 Email: nramsey@rc.com Counsel to the Future Claimants’ dwright@rc.com Representative Counsel to the Official Committee of Asbestos Claimants

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