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Full title: Response /Reply Brief in Support of Debtor's Motion to Authorize Issuance and Service of New Subpoenas Hearing scheduled for 08/31/2021 at 9:30 AM at 3-LTB-Charlotte Courthouse (RE: related document(s)1924 Motion (Other) filed by Debtor Bestwall LLC) Filed by Garland S. Cassada on behalf of Bestwall LLC. (Cassada, Garland) (Entered: 08/26/2021)
Document posted on Aug 25, 2021 in the bankruptcy, 22 pages and 0 tables.
Bankrupt11 Summary (Automatically Generated)
Not so here—this Court has already determined that the Debtor’s requested Trust discovery is central to many purposes in this case.6 DCPF is owned by the following DCPF Trusts: Celotex Asbestos Settlement Trust, Babcock & Wilcox Company Asbestos Personal Injury Settlement Trust, Armstrong World Industries Asbestos Personal Injury Settlement Trust, Owens Corning / Fibreboard Asbestos Personal Injury Trust, United States Gypsum Asbestos Personal Injury Settlement Trust, WR Grace Asbestos PI Trust, and the Pittsburgh Corning Corporation Asbestos PI Trust.This Court is uniquely qualified to evaluate issues presented in the Debtor’s Motion, including: (i) whether the anonymization procedures the Debtor has proposed adequately protect privacy interests while preserving the utility of the discovery for the needs of the case; and (ii) whether the 10% random sample of claims for which Bestwall seeks discovery is random and appropriately stratified to ensure that the sample is representative of Bestwall’s historical resolution of mesothelioma claims.This Court authorized the Debtor to obtain 8 Trust data that would allow it to test whether claimants failed to identify in their tort cases against Bestwall alternative exposure evidence that they later submitted to support Trust claims.That argument is irrelevant to the question of whether this Court should authorize the issuance of new subpoenas and should not be credited.7 Ever since the Delaware District Court ordered that any Trust discovery must be limited to a 10% random sample, the Debtor has sought a practical solution to move the case forward.
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Document ContentsUNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION In re Chapter 11 BESTWALL LLC,1 Case No. 17-31795 (LTB) Debtor. REPLY BRIEF IN SUPPORT OF DEBTOR’S MOTION TO AUTHORIZE ISSUANCE AND SERVICE OF NEW SUBPOENAS Bestwall LLC (“Bestwall” or the “Debtor”) files this Reply in support of the Debtor’s Motion to Authorize Issuance and Service of New Subpoenas (Dkt. 1924) (the “Motion”) and in response to the objections (together, the “Objections”) of DCPF and the Manville Trust (Dkt. 2012) and the ACC and the FCR (collectively, the “Claimant Representatives”) (Dkt. 2014).2 INTRODUCTION The Objections attempt to ignore this Court’s critical role with respect to the Trust Discovery. The subpoenas must issue from this Court. This Court was asked to authorize the Trust Discovery pursuant to Bankruptcy Rule 2004. This Court, after over six months of litigation, granted that authority and entered a 20-page order governing the discovery. And this Court is being asked to authorize this request for a new subpoena under Rule 2004. To approve this request, this Court must determine that the discovery is relevant and reasonable, is not for the purpose of annoying or oppressing the party examined, and is supported by good cause. See In re Orion Healthcorp., Inc., 596 B.R. 228, 235 (Bankr. E.D.N.Y. 2019); In re Symington, 209 B.R. 678, 684-85 (Bankr. D. Md. 1997). This Court is uniquely suited to make these 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. 2 Capitalized terms not otherwise defined herein have the meanings given to them in the Motion. 1
1determinations because it is the Court that is presiding over this case; it is the Court that will try the estimation proceeding, and make determinations as to the need, relevance, reasonableness and proportionality of discovery sought in connection with that proceeding. Equally important, this Court is uniquely positioned to determine whether conditions sought be imposed on the Trust discovery would be inconsistent with the needs of this case. The Debtor has crafted new subpoenas that comply with the orders of the Delaware District Court by limiting the discovery to a random 10% sample, providing for pre-production anonymization, and implementing the relevant protections found in the Access Decision. In fact, the new subpoenas provide even more protection to claimants’ interests than the Delaware District Court’s orders required because they also eliminate all personally identifiable information from the requested data. Nonetheless, DCPF, the Manville Trust, and the Claimant Representatives, while failing, despite repeated requests, to offer any proposed language on the two key issues, have insisted upon interpretations of “random sample” and “pre-production anonymization” that would render the data utterly useless for the estimation proceeding and this bankruptcy case. Only this Court is in a position to decide whether these interpretations would adversely affect the parties’ ability to discover evidence needed for the estimation proceeding. That decision will in no way infringe upon the role and duty of the court where compliance will be required to address any issues properly presented to it under Rule 45 in the event any party moves to quash. Finally, the Motion is procedurally proper and the Claimant Representatives should not be heard to complain about a “limited” or “one-sided” record if they purposefully and strategically decide not to develop or submit evidence opposing the Motion. In support of the Motion, Bestwall attached a declaration from its claims expert, Dr. Gallardo-Garcia from Bates 2
2White. The Claimant Representatives sought to depose Dr. Gallardo-Garcia, and the Debtor made him available. But the evening before that deposition was set to take place, the Claimant Representatives cancelled it, asserting that “the matters addressed by Dr. Gallardo-Garcia’s declaration are not properly before the Court.” See Aug. 17, 2021 Email from E. Edwards to G. Cassada, et al. (attached as Exhibit B).3 The Claimant Representatives have not yet submitted any evidence in support of their objection. That is their right; but it is not a reason for this Court to decline to hear the merits of the Debtor’s Motion. Bestwall asks this Court to grant the Motion and incorporate in its order the findings contained in Exhibit A attached hereto. ARGUMENT I. The Motion is Procedurally Proper under Rule 2004 For six months, the Claimant Representatives and the Trusts argued that the Debtor was not entitled to Trust discovery under Rule 2004. This Court disagreed, stating that “I conclude I should grant the debtor’s motion for Rule 2004 exam of bankruptcy trusts pursuant to Rule 2004 and that the information sought is both relevant and necessary to the case.” 3/4/2021 Tr. at 12-13. Bestwall again seeks Trust data under Rule 2004 and, as before, the examination proposed in this Motion falls squarely within the scope of the rule because it will provide information of core relevance to “the liabilities . . . of the debtor,” “formulation of a plan,” and “administration of the debtor’s estate.” Fed. R. Bankr. P. 2004(b). The Court’s prior ruling on Rule 2004 applies with equal force to Bestwall’s narrowed subpoenas. The Claimant Representatives purport to “reserve the right to litigate” whether Rule 2004 is a proper basis for the Debtor’s Trust discovery “once it has been properly presented to the Court for 3 Yesterday, the FCR advised the Debtor that it intends to cross-examine Dr. Gallardo-Garcia at the hearing and the ACC reserved its right to do so. 3
3determination.” Claimant Representatives’ Obj. at 2 n.4. But that issue already has been presented, argued, and decided. The Court should reject the Claimant Representatives’ attempt to resurrect and relitigate that long-resolved issue. In addition, the Claimant Representatives have had the opportunity to raise their arguments in connection with the pending Motion; there is no basis to reserve these arguments until some later date. Next, the Claimant Representatives seem to suggest that Bestwall should have served the subpoenas unilaterally—without authorization from this Court. But in filing the Motion and seeking authorization for the new subpoenas, the Debtor simply followed the procedures it used previously when it sought the original Trust subpoenas. That process resulted in changes to the form of order Bestwall initially proposed, including to address the Court’s concerns, and those raised by DCPF and the Manville Trust, regarding data privacy by requiring, among other things, Bates White to anonymize the trust data after the Trusts produced it. Now, the Debtor seeks to issue subpoenas that address privacy concerns in a fundamentally different and even more protective way—by excluding all personally identifiable information from the Debtor’s request and by allowing the Trusts, as opposed to Bates White, to anonymize the data before production. Given this departure from the Trust discovery procedures this Court previously ordered, it makes sense that the Debtor would obtain the Court’s authority for the new subpoenas. In addition, at the same time the Claimant Representatives argue that the Debtor should have issued the subpoenas unilaterally, they allege that the sample of claims for which the Debtor seeks discovery is deficient and not useful to the case. 4 Those arguments, which can only be decided by this Court, demonstrate exactly why this Court should evaluate and rule on the 4 Despite repeated requests by the Debtor, the Claimant Representatives have refused to engage on the sample, stating instead that they take no position on the issue. As a result, the Claimant Representatives have never shared with the Debtor why they believe the sample is deficient or offered any alternative. 4
4proposed discovery. They further demonstrate why this Court should make findings in connection with the discovery. The Objections assert a handful of other meritless procedural objections to this Court’s consideration of the Motion. The Claimant Representatives argue that this Court’s ruling on the Motion would be an “improper advisory opinion.” Claimant Representatives’ Obj. at 2. That is false; there is a live case or controversy—whether Bestwall should be authorized to issue the subpoenas contemplated by the Motion. The fact that a district court may subsequently review the subpoenas on a properly filed motion to quash does not deprive this Court of its authority to rule on the Motion under Rule 2004, nor would that ruling be an advisory opinion. In that respect, the circumstances of this Motion are no different than when the Court considered the Debtor’s request to authorize the original subpoena to the Trusts. The Trusts, meanwhile, invoke the comity and divestment doctrines—two concepts that have no application here. The doctrine of comity “instructs federal judges to avoid stepping on each other’s toes when parallel suits are pending in different courts.” In re Naranjo, 768 F.3d 332, 348 (4th Cir. 2014) (internal quotation marks omitted).5 There is no pending matter in the Delaware District Court. On the contrary, and as described in the Motion, the Debtor asked the Delaware District Court to rule that the new subpoenas complied with its prior orders. In response, the DCPF Trusts argued that Bestwall’s motion was improper because it requested “[the Delaware District] Court to issue an advisory opinion regarding the effect of its June 1 and 5 The Trusts cite In re Repurchase Corp., 329 B.R. 832, 835 (Bankr. N.D. Ill. 2005), Trusts’ Obj. ¶¶ 16-17, but that case is inapposite. In Repurchase, the bankruptcy court abstained from ruling on a proof of claim and related objection when “both Parties conceded that abstention would be appropriate.” Id. at 835. The court noted that the issues presented “will not affect the bankruptcy estate,” and that “the degree of relatedness or remoteness of the underlying dispute between the parties and the Debtor’s case is zero, at best.” Not so here—this Court has already determined that the Debtor’s requested Trust discovery is central to many purposes in this case. See Trust Order ¶ 3. Further, unlike in Repurchase, the Debtor is not seeking a finding or ruling that it has complied with another court’s order. The Delaware District Court will determine whether the subpoenas comply with its prior orders in the event any party files a proper motion to quash. 5
5June 17 Orders on Bestwall’s draft subpoena” and “a revised subpoena can only be issued from the North Carolina bankruptcy court where the litigation is pending.” DCPF Trusts Resp. to Mot. to Amend (Del. Dkt. 42) ¶ 25 (internal quotation marks omitted). The Delaware District Court declined to approve Bestwall’s amended subpoenas on procedural grounds, which, as the DCPF Trusts argued, required that Bestwall return to this Court for approval of the new subpoenas. Now, in a complete reversal of course, DCPF (the DCPF Trusts’ agent and a subsidiary of certain of the DCPF Trusts)6 is asking this Court not to rule on Bestwall’s new subpoenas because whether Bestwall should be permitted to issue its proposed subpoenas “is a question that should be left to the Delaware District Court.” Trusts’ Obj. ¶ 16. Plainly, DCPF and the DCPF Trusts do not want any Court to authorize the subpoenas Bestwall seeks. But Bestwall’s proposed subpoenas are not pending before the Delaware District Court (the miscellaneous action there relating to the prior subpoenas has been closed), and therefore the comity doctrine is no bar to this Court’s consideration of the Motion. The divestment doctrine likewise does not prevent this Court from adjudicating the Motion. Contrary to the Trusts’ argument, Bestwall is not asking this Court to determine any question that is already before the Third Circuit. See Trusts’ Obj. ¶ 16. Bestwall’s Motion seeks authority to issue new subpoenas that comply with the DE Trust Orders. This Court does not need to assess whether the Delaware District Court’s orders were erroneous, nor is the Debtor asking for any such ruling. The Third Circuit will determine if the Delaware District Court’s order quashing the prior subpoenas was correct or not. That has no bearing on this Court’s 6 DCPF is owned by the following DCPF Trusts: Celotex Asbestos Settlement Trust, Babcock & Wilcox Company Asbestos Personal Injury Settlement Trust, Armstrong World Industries Asbestos Personal Injury Settlement Trust, Owens Corning / Fibreboard Asbestos Personal Injury Trust, United States Gypsum Asbestos Personal Injury Settlement Trust, WR Grace Asbestos PI Trust, and the Pittsburgh Corning Corporation Asbestos PI Trust. See 2020 Celotex Trust Annual Report (excerpts attached as Ex. C). 6
6consideration of new and narrower subpoenas that, if authorized, will enable the Debtor to secure certain of the Trust Discovery previously authorized by the Court at the same time it is pursuing its appeal to obtain all the earlier authorized Trust Discovery. II. This Court Should Evaluate the Subpoenas in the First Instance Bankruptcy Rule 2004 authorizes bankruptcy courts to determine when a Rule 2004 examination should take place and the appropriate contours of that examination. Once a ruling is made and, upon proper motion, the court for the district where compliance is required can evaluate, with the benefit of the bankruptcy court’s ruling, whether it should quash the subpoenas pursuant to Rule 45(d)(3) of the Federal Rules of Civil Procedure (the “Civil Rules”). Bankruptcy Rule 2004 and Civil Rule 45 work together in a manner that serves the interests of judicial efficiency. The Motion seeks discovery that is relevant and necessary to the chapter 11 case this Court is administering and the estimation trial over which this Court will preside. This Court is uniquely qualified to evaluate issues presented in the Debtor’s Motion, including: (i) whether the anonymization procedures the Debtor has proposed adequately protect privacy interests while preserving the utility of the discovery for the needs of the case; and (ii) whether the 10% random sample of claims for which Bestwall seeks discovery is random and appropriately stratified to ensure that the sample is representative of Bestwall’s historical resolution of mesothelioma claims. Any court of compliance would logically be informed by this Court’s findings and conclusions on these and other points raised in the Motion. III. The Court Should Authorize the New Subpoenas The Objections do not explain, in any meaningful way, why Bestwall’s new subpoenas are objectionable. The Trusts declare only that the Debtor’s proposed order “provides for neither 7
7random sampling nor pre-production anonymization.” Trusts’ Obj. ¶ 15. But Bestwall has provided uncontroverted expert testimony that its sample is an appropriate and representative random sample. See Motion Ex. G. And in any event, the Trusts, who are not litigants in this case and whose focus purports only to be on data security, should be agnostic about which claimants are included in the sample, as long as the number of claimants is limited to 10%. The Trusts do not articulate why Bestwall’s proposed order does not provide for pre-production anonymization, even though the Trusts will anonymize their data before producing it to the Debtor. The Trusts’ argument that the Debtor will “de-anonymize” the anonymized trust data is baseless and is an attempt to mischaracterize the purpose and use of a Matching Key. Once the trust data is produced to the Debtor, it will never be merged into any database which has the claimants’ personal identifying data and, thus, will always be anonymized. The purpose of anonymizing the data is to protect the claimants from identity theft in case of a possible data breach, not to prevent the Debtor from knowing the identity of these claimants. A Matching Key, which is always maintained in a file separate and distinct from the anonymized trust data, is required for the Debtor to undertake the analysis this Court has ruled is necessary and proper, and its existence and use in no way “de-anonymizes” the trust data which is stored in an anonymized database. From discussions, the Debtor believes that the Trusts will only agree to a pre-production anonymization protocol that does not include a Matching Key, which allows the Debtor to compare the anonymized Trust claim data for an individual claimant to the disclosures that claimant made to Bestwall in the tort system. The failure to provide a Matching Key would defeat the central purpose of the discovery, which the Delaware District Court (like this Court) held was a “legitimate purpose.” June 1 Order at 16. This Court authorized the Debtor to obtain 8
8Trust data that would allow it to test whether claimants failed to identify in their tort cases against Bestwall alternative exposure evidence that they later submitted to support Trust claims. To do this, Bestwall needs to be able to link or match the Trust data it receives from the Trusts to claimant data that Bestwall already possesses. The Trusts’ specious interpretation of pre-production anonymization would not serve any legitimate privacy or data security interest, it would merely render the Trust discovery useless to the parties and the Court. The Claimant Representatives, meanwhile, take issue with the random sample the Debtor has chosen (albeit without providing any evidence in support of their view). The Debtor has proposed to seek Trust discovery for a random 10% sample that its expert designed to be a statistically valid and representative sample of Bestwall’s historical resolutions of mesothelioma claims through verdict and settlement. The Claimant Representatives have so far offered no evidence to counter the Debtor’s proposed sample. They decided not to depose the Debtor’s expert regarding his testimony and have refused to confer with the Debtor regarding their alleged concerns about the sample or any alternative sample. Despite their lack of evidence, the Claimant Representatives criticize the Debtor’s sample. They first allege that the sample “is under-inclusive of lower-value settlements and verdicts,” Claimant Representatives’ Obj. ¶ 14, but that allegation is refuted by the Debtor’s uncontroverted expert evidence. See Motion Ex. G ¶¶ 16-20. The Claimant Representatives next fault the Debtor for not including dismissed claims in its proposed sample. But Bestwall never sought Trust discovery for dismissed claims. The original order authorized discovery pertaining to the approximately 15,000 mesothelioma claimants whose claims “were resolved by settlement or verdict.” Trust Order ¶ 4 (emphasis added). The Delaware District Court’s June 17 Order covered the same 15,000 claimants. There is no reason or basis to include dismissed claims in a 9
9sample of claims that does not include dismissals. Lastly, the Claimant Representatives attempt to transform a discovery dispute regarding a sample of the Debtors’ claims files (that they admit the Debtor already resolved) into a reason to reject the Debtor’s proposed sample. See Claimant Representatives’ Obj. ¶ 15. That argument is irrelevant to the question of whether this Court should authorize the issuance of new subpoenas and should not be credited.7 Ever since the Delaware District Court ordered that any Trust discovery must be limited to a 10% random sample, the Debtor has sought a practical solution to move the case forward. It has proposed a 10% sample for Trust discovery that will take advantage of the extraordinary discovery efforts it has already expended in connection with estimation. The Claimant Representatives not only refused to agree to Bestwall’s proposed sample, they have refused to engage on what the sample should be. Even now, in their Objection, the Claimant Representatives fail to describe the sample they believe would be appropriate for Trust discovery. Finally, the Claimant Representatives had every opportunity to respond to the Debtor’s Motion in full. The Debtor told this Court on July 22 that it would “shortly be filing a motion in this court asking your Honor’s authorization to serve a new subpoena on the trusts.” 7/22/2021 Tr. at 163. The Debtor also, in response to this Court’s question, indicated its view that the new subpoenas would be well within the bounds of what Chief Judge Connolly ordered in Delaware. The Debtor then filed the Motion on July 29, three weeks before the Objection was filed. If the record is “limited” or “one-sided,” see Claimant Representatives’ Obj. ¶ 8, it is because of strategy decisions the Claimant Representatives voluntarily elected to make. And DCPF Trusts, despite being served with the Motion, elected as before not to appear at all (except through their 7 This issue has already been fully briefed. See Debtor’s Objection to Motion to Compel Production of Documents (Dkt. 2017) ¶ 21. It has no bearing on the Debtor’s Motion. 10
10agent, the DCPF). But these are not reasons for this Court to decline to rule on the Debtor’s Motion, which is properly before it and seeks Trust discovery that is necessary to this case. The Court should authorize Bestwall to issue the new subpoenas and make findings that will assist any future court of compliance in evaluating the subpoenas. CONCLUSION For all these reasons, the Debtor respectfully requests that the Court overrule the Objections and grant the Motion. 11
11Dated: August 26, 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 Email: 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 Email: 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 Email: email@example.com (Admitted pro hac vice) ATTORNEYS FOR DEBTOR AND DEBTOR IN POSSESSION 12
13UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION IN RE: Case No. 17-BK-31795 (LTB) BESTWALL LLC,1 Chapter 11 Debtor. (PROPOSED) FINDINGS ON DEBTOR’S MOTION TO AUTHORIZE ISSUANCE AND SERVICE OF NEW SUBPOENAS 1. The subpoenas do not require the production of any personal identifying information (PII); accordingly, the production of the information sought by the subpoenas will be a fully anonymized preproduction. 2. The Matching Key does not disclose PII and is necessary to enable the Debtor and the other parties to associate the trust data with specific claimants who asserted claims against Bestwall; absent the Matching Key, the data would not be usable for the purposes for which it is intended; i.e., to ascertain whether Bestwall claimants failed to disclose alternative exposure evidence to Bestwall. 3. The subpoenas assure that the data produced by the trusts will never be combined with PII in the possession of the Debtor; accordingly, the data will remain fully anonymized. Because of the anonymization of the data, there will be no increased risk of identity theft. 4. The 10% sample proposed by Bestwall is random; the fact that it is stratified (a) is necessary to ensure that the sample is representative of Bestwall’s historical resolution of 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.
14mesothelioma claims and (b) does not change the fact that the sample is random. The declaration of Dr. Gallardo-Garcia, which supports this finding, is uncontroverted. 5. The subpoena contains all the applicable protections from In re Owens Corning, 560 B.R. 229 (Bankr. D. Del. 2016) (the “Access Decision”) and, therefore, complies with the Access Decision. 6. DCPF, the DCPF Trusts and the Matching Claimants who objected to the subpoenas issued pursuant to the March 24, 2021 Trust Discovery Order received notice of the Motion and had an opportunity to object and be heard with respect to the Motion. DCPF and the Manville Trust objected to the Motion and argued in opposition to the Motion at the hearing. None of DCPF, the Manville Trust or any other party offered evidence in opposition to the Motion. 7. The subpoenas are substantially narrower than the subpoenas this Court initially authorized. 8. The subpoenas provide a reasonable time to comply. 9. The subpoenas do not impose an undue burden. 10. The subpoenas do not require disclosure of privileged or other protected matter. 11. The subpoenas do not require production of trade secrets or other confidential research, development, or commercial information. 12. The information requested is relevant and necessary for the Debtor to prepare its case for the estimation trial.
16rom: Edwards, Erin <firstname.lastname@example.org> ent: Tuesday, August 17, 2021 4:32 PM o: Cassada, Garland; Zieg, Sharon c: 'Gordon, Gregory M.'; Ellman, Jeffrey B.; Jones, James M. (jmjones@JonesDay.com); Natalie D. Ramsey (email@example.com); Wright, David; Glenn C. Thompson (firstname.lastname@example.org); Felton E. Parrish (email@example.com); Harron, Edwin; 'Rubinstein, Jason C.'; Haggerty, Timothy; Worf, Richard C. Jr; Crandall, Kevin; Riggins, Satyra L. ubject: RE: Bestwall: Debtor’s Motion to Authorize Issuance of New Subpoenas - CANCELLATION of DEPOSITION OF DR. GALLARDO-GARCIA arland, pon further consideration, the matters addressed by Dr. Gallardo-Garcia’s declaration are not properly before the ourt. As a result, the Claimants’ Representatives will not proceed with his deposition tomorrow but reserve all right depose him on these matters and any other issues. est regards, rin ErinD. Edwards, Partner Young Conaway Stargatt & Taylor, LLP Rodney Square, 1000 North King Street Wilmington, DE 19801 P: 302.571.6552 | F: 302.576.3471 firstname.lastname@example.org | www.youngconaway.com | vCard his message may contain confidential attorney-client communications or other protected information. If you believe you are ot an intended recipient (even if this message was sent to your e-mail address), you may not use, copy, or retransmit it. If you elieve you received this message by mistake, please notify us by return e-mail, and then delete this message. Thank you for our cooperation. rom: Cassada, Garland <GCassada@robinsonbradshaw.com> ent: Wednesday, August 11, 2021 7:09 PM o: Zieg, Sharon <SZIEG@ycst.com> c: 'Gordon, Gregory M.' <gmgordon@JonesDay.com>; Ellman, Jeffrey B. <jbellman@JonesDay.com>; Jones, James . (jmjones@JonesDay.com) <jmjones@JonesDay.com>; Natalie D. Ramsey (email@example.com) <firstname.lastname@example.org, David <DWright@robinsonbradshaw.com>; Glenn C. Thompson (email@example.com) firstname.lastname@example.org>; Edwards, Erin <email@example.com>; Felton E. Parrish firstname.lastname@example.org) <email@example.com>; Harron, Edwin <firstname.lastname@example.org>; ubinstein, Jason C.' <email@example.com>; Haggerty, Timothy <firstname.lastname@example.org>; Worf, Richard C. Jr RWorf@robinsonbradshaw.com>; Crandall, Kevin <KCrandall@robinsonbradshaw.com>; Riggins, Satyra L. SRiggins@robinsonbradshaw.com> ubject: RE: Bestwall: Debtor’s Motion to Authorize Issuance of New Subpoenasharon – I assume your request relates to the declaration in support of the motion. Dr. Gallardo-Garcia is available on Tuesday, ugust 17 or Wednesday, August 18. Let’s plan to speak tomorrow about specific arrangements. Thank you, Garland ––––––––––––––––––––––––––––– arland S. Cassada obinson Bradshaw : 704.377.8317 | f : 704.373.3917 01 N. Tryon St., Suite 1900 harlotte, NC 28246 email@example.com | Bio obinsonbradshaw.com
17tended recipient. Any review, reliance, distribution or forwarding by others without express permission is strictly prohibited. Iou are not the intended recipient, please contact the sender and delete all copies. rom: Zieg, Sharon <SZIEG@ycst.com> ent: Wednesday, August 11, 2021 12:28 PM o: Cassada, Garland <GCassada@robinsonbradshaw.com> c: 'Gordon, Gregory M.' <gmgordon@JonesDay.com>; Ellman, Jeffrey B. <jbellman@JonesDay.com>; Jones, James . (jmjones@JonesDay.com) <jmjones@JonesDay.com>; Natalie D. Ramsey (firstname.lastname@example.org) <email@example.com, David <DWright@robinsonbradshaw.com>; Glenn C. Thompson (firstname.lastname@example.org) email@example.com>; Edwards, Erin <firstname.lastname@example.org>; Felton E. Parrish email@example.com) <firstname.lastname@example.org>; Harron, Edwin <email@example.com>; ubinstein, Jason C.' <firstname.lastname@example.org>; Haggerty, Timothy <email@example.com>; Worf, Richard C. Jr RWorf@robinsonbradshaw.com>; Crandall, Kevin <KCrandall@robinsonbradshaw.com> ubject: Bestwall: Debtor’s Motion to Authorize Issuance of New Subpoenasarland, connection with the Debtor’s Motion to Authorize Issuance of New Subpoenas, the ACC and FCR would like to depose Mr. allardo-Garcia. Please provide a few dates before the hearing that he is available for deposition. egards, haron SharonM. Zieg, Partner Young Conaway Stargatt & Taylor, LLP Rodney Square, 1000 North King Street Wilmington, DE 19801 P: 302.571.6655 | F: 302.576.3350 SZIEG@ycst.com | www.youngconaway.com | vCard his message may contain confidential attorney-client communications or other protected information. If you believe you are ot an intended recipient (even if this message was sent to your e-mail address), you may not use, copy, or retransmit it. If you elieve you received this message by mistake, please notify us by return e-mail, and then delete this message. Thank you for our cooperation.
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20Case 8:90-bk-10016-MGW Doc 14389 Filed 04/30/21 Page 7 of 51 her expenses on a quarterly basis. As part of an in camera filing made in connection with this report (the "In Camera Submission"), the Trust has supplied the Court with the time and expense records of the Trustee for the Reporting Period, along with a copy of the Trust's guidelines for payment of trustee fees and expenses. B. Trust Officers Dr. B. Thomas Florence of Ankura Consulting Group ("Ankura") retired as Executive Director of the Trust. Ms. Amy Brockman of Ankura was appointed as Executive Director of the Trust, effective December 19. 2019 and served in that capacity throughout the Reporting Period. C. Trust Auditors The Trust's auditors are BDO USA, LLP of McLean, Virginia. BDO has significant experience auditing asbestos personal injury trusts and, as required, has conducted an audit of the Trust in conformity with special purpose accounting methods adopted by the trustees. They have expressed an opinion that the Trust's financial statements present fairly, in all material respects. the financial position of the Trust and the results of its operations and its cash flows as of December 31, 2020. The auditors' opinion expressly provides that it is intended for the use of this Court. D. Trust's Wilmington Claims Processing Facility As previously reported, the Trust had operated a stand-alone claims processing facility in Wilmington. Delaware for the processing and payment of the Trust's asbestos-related personal injury claims. The Trust's claims facility gained a reputation for fair, efficient. and cost-effective claims processing. As the Trust's backlog of claims was reduced, and as new filings diminished, the trustees were cognizant of the relative increase in claims processing costs in proportion to the number of claims processed. The trustees considered available options to reduce claims processing costs, such as closing or reducing the size of its stand-alone facility, contracting with a third party to process its claims. or joining with other asbestos-related -5-
21Case 8:90-bk-10016-MGW Doc 14389 Filed 04/30/21 Page 8 of 51 personal injury trusts in some joint processing arrangement whereby overhead and other common costs could he shared. As pre\ iouslv reported. the trustees decided that the best alternative \\ as to keep its experienced claims staff and physical facilities intact. \\,hile looking tOr opportunities to jointly process claims \\ ith other asbestos personal injury trusts and thereb\ share the costs of the claims facility. in 2006, four new, large asbestos trusts were formed at the conclusion of the Chapter 11 proceedings for Babcock & Wilcox Company, Armstrong World Industries. Inc.. Owens Corning Fibreboard Company, and United States Gypsum Company. As previously reported. the Trust and those four other asbestos trusts entered into an agreement whereby they would jointly process claims through their common ownership of the Celotex Trust's claims processing facility. The vehicle for this common ownership is the Delaware Claims Processing Facility. LLC. a Delaware limited liability company (the "Delaware Claims Facility"). formed to own and operate the Celotex Trust's former claims processing facility. The Delaware Claims Facility processes each member trust's claims in accordance with that trust's applicable governing documents. Based on its usage of the Delaware Claims Facility's resources, each trust pays a pro rata portion of the facility's costs. in effect, the Delaware Claims Facility operates on a not-for-profit. or cost-pass-through. basis. In 2013, the WRG Asbestos PI Trust joined the Delaware Claims Facility as a member trust, and effective May 18, 2016. the Pittsburgh Corning Corporation Asbestos Personal injury Settlement Trust was admitted as a member trust. E. Trust Advisors Under the terms of the Trust Agreement. there are two trust advisors: the PI Advisory Committee. now consisting of three personal injury lawyers. Russell 13udd, Steven Kazan, and Joseph F. Rice and the Legal Representative, now James L. Patton. -6-