Case Doc 4115 Filed 10/02/14 Entered 10/02/14 16:24:08 Desc Main Document Page 1 of 6

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1 Document Page 1 of 6 UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA Charlotte Division In re: Garlock Sealing Technologies LLC, et al., Debtors. 1 Case No. 10-BK Chapter 11 Jointly Administered BELLUCK & FOX, LLP S RESPONSE TO DEBTORS MOTION TO PLACE CERTAIN DOCUMENTS IN THE MESOTHELIOMA ESTIMATION RECORD UNDER SEAL Pursuant to this Court s Order Establishing Protocols for Public Access to Sealed Materials in Record of Estimation Proceeding (Dkt. No. 3925) (the Protocol Order ), Belluck & Fox, LLP, through undersigned counsel, respectfully submits this Response to the Debtors Motion to Place Certain Documents in the Mesothelioma Estimation Record Under Seal ( Garlock s Motion to Seal ). INTRODUCTION In its Motion to Seal, Garlock is seeking to hide from the public its internal records about the very settlements Garlock erroneously claims were tainted by the supposed concealment of evidence. Garlock, which for decades hid the dangers of its asbestos-containing products from Navy veterans and other American workers, has repeatedly been found by state judges and juries to have acted with reckless disregard by covering up its products risks. Now, Garlock asks this Court to shield from public view Garlock s own contemporaneous evaluations and 1 The debtors in the above-captioned jointly-administered cases are Garlock Sealing Technologies LLC, Garrison Litigation Management Group, Ltd., and The Anchor Packing Company (collectively, the Debtors ). 1

2 Document Page 2 of 6 representations regarding cases it settled in the past even though Garlock has publicly accused the plaintiffs in those cases, and their attorneys, of fraudulently concealing evidence. Belluck & Fox was not a party to the proceeding to estimate the Debtors aggregate liability for present and future mesothelioma claims (the Estimation Proceeding ), in which Garlock asserted its fraudulent-concealment theory, and therefore the record of that proceeding does not tell the whole story. At the very least, however, if the public is to gain access to the underlying documents regarding Garlock s settlements, it would be fundamentally unfair to allow Garlock to release only the documents submitted on behalf of its victims, while keeping its own documents under seal. The Court should not countenance Garlock s request to shield the internal documents Garlock has already produced. Moreover, for months, Garlock has engaged in an aggressive media strategy to pillory plaintiffs lawyers and demonize the Navy veterans and other workers who were sickened and injured by Garlock s asbestos products. Garlock s allegations depend on its claims that it was duped into settling tort cases for inflated values because it was not aware of certain plaintiffs exposures to asbestos from other sources, including products from bankrupt manufacturers. At the Estimation Hearing, Garlock presented the testimony of certain lawyers from the firms that had represented Garlock in the underlying tort cases to support Garlock s position that its historic settlements were falsely inflated. Yet, Garlock now seeks to hide its own contemporaneous evaluations of the underlying cases, including Garlock s own representations to its insurance companies when requesting funding for the settlements. The question for this Court should be: why? The answer, Belluck & Fox respectfully submits, is that Garlock wants to hide its contemporaneous evaluations and memos, and those of its counsel, because those documents likely contain alternative explanations as to why Garlock 2

3 Document Page 3 of 6 settled cases in the tort system and may reveal the real reasons why Garlock settled at the values it did. Further, those documents may reveal that Garlock and its lawyers were aware of the precise information it now claims it did not know. In other words: Garlock wants to hide the documents because they will expose Garlock as the one that has concealed from the press and the public the real basis for its settlements in the tort system. A. The Court Should Reject Garlock s Attempt to Hide Evidence from the Public by Asserting Privileges Garlock Has Long Since Waived. Going far beyond the protection of injured claimants legitimate privacy interests, Garlock s Motion to Seal primarily seeks to advance Garlock s own interests by shielding from public view a substantial swathe of evidence used at the Estimation Hearing: its Major Expense Authorizations ( MEAs ), which documented the approval of settlement decisions and contain the mental impressions and opinions of in-house and trial counsel regarding those settlement decisions; Trial Evaluation Forms ( TEFs ), which contain trial plans, updates on the status of trial preparation, and counsel s opinion and assessments of cases; other memoranda concerning settlements; and testimony about all of the foregoing documents. See Garlock s Mot. to Seal at 5 & Ex. A. The only ground Garlock offers in support of its effort to seal these materials is its assertion that the documents are privileged, notwithstanding this Court s Orders to the contrary and notwithstanding the fact that all of the materials at issue were in fact produced to the Official Committee of Asbestos Personal Injury Claimants ( Committee ) in connection with the Estimation Proceeding. See Response of Official Committee of Asbestos Personal Injury Claimants to Debtors Motion to Place Certain Documents in the Mesothelioma Estimation Record Under Seal (Dkt. 4110) ( Committee s Response ) at 5-8 (discussing Court s orders finding at issue waivers); Garlock s Mot. to Seal at 5-6 (admitting materials were produced 3

4 Document Page 4 of 6 and admitted into evidence and testimony was elicited concerning them); see also Garlock s Mot. to Seal at Ex. A. The Committee has persuasively explained why Garlock s contention that its privilege waiver is somehow limited only to the Estimation Proceeding is meritless. See Committee Response at Rather than repeat those arguments here, Belluck & Fox hereby joins in the Committee s Response and incorporates those arguments by reference. Belluck & Fox files this separate Opposition, however, to underscore the unabashed unfairness of Garlock s attempt to continue shielding its evaluations from public view. The real reason Garlock wants these materials to remain secret is, transparently, to keep them away from the public, as well as the attorneys for injured workers and veterans. Garlock even admits to this motive, offering that: Sealing these documents would help prevent a third party from contending that the privileges and immunities attached to the Compelled Discovery were somehow waived for other, separate litigation proceedings. Garlock s Mot. at 9 (emphasis added). In other words, Garlock does not want the public or law firms like Belluck & Fox to have access to the full record from the Estimation Proceeding, lest evidence contrary to Garlock s public position become available to them. But a waiver is a waiver: if the privilege was waived for purposes of the Estimation Proceeding, it was also waived with respect to the same documents and subject matters for all other purposes as well, including other litigation. See Committee s Response at 8-9. And if the privilege was waived, the only basis for Garlock s current request to seal is its self-interested desire to keep the materials secret but Garlock s self-interest provides no justification for sealing the evidence. In short, Garlock seeks to ensure that its allegations against injured plaintiffs and their lawyers, including Belluck & Fox, are wide open to public scrutiny, while the evidence revealing Garlock s own, candid assessments of those cases remain hidden. The Court should not 4

5 Document Page 5 of 6 countenance such sharp practices. If the public has an interest in finding out what happened when Garlock settled with plaintiffs in the tort system, the public is entitled to find out all of the facts, not just the assertions from one side. B. Belluck & Fox Supports Redaction of Individuals Personally Identifying Information. Garlock has also moved to seal, in part, certain personally identifying information appearing throughout the Estimation Record. Garlock s Mot. to Seal at 9. Belluck & Fox supports Garlock s motion in that regard, but further contends that claimants full names; full social security numbers, and financial information (including settlement values) should also be redacted wherever such information appears in the record. See Mot. to Seal Confidential Information of Asbestos Personal Injury Claimants Represented by Belluck & Fox LLP (Dkt. No. 4049) at 4. 2 In addition, as the Committee argues in its response to Garlock s Motion to Seal, to the extent the Court orders the parties to redact individuals personal information, the Court should also order a review of the complete Estimation Record to ensure that the redactions are made consistently throughout the record. See Committee s Response at CONCLUSION For the reasons set forth above, Garlock s Motion to Seal should be granted insofar as it pertains to the personally identifying information of asbestos personal injury claimants. Garlock s Motion to Seal should be denied, however, with respect to any of Garlock s MEAs, TEFs, other settlement memoranda, and related testimony appearing in the Estimation Record. 2 Unlike Garlock, Belluck & Fox has not sought to seal evidence presented in the Estimation Proceeding, but rather has moved to redact only limited personally identifying information and financial information belonging to its clients. 5

6 Document Page 6 of 6 This 2nd day of October, Respectfully submitted, _/s/_caroline E. Reynolds Sara W. Higgins HIGGINS & OWENS, PLLC 5925 Carnegie Blvd., Suite 530 Charlotte, NC Tel: (704) Fax: (704) shiggins@higginsowens.com James Sottile (pro hac vice) Benjamin Voce-Gardner (pro hac vice) ZUCKERMAN SPAEDER LLP 1185 Avenue of the Americas 31st Floor New York, NY Tel: (212) Fax: (212) jsottile@zuckerman.com bvoce-gardner@zuckerman.com Caroline E. Reynolds (pro hac vice) ZUCKERMAN SPAEDER LLP 1800 M Street N.W., Suite 1000 Washington, DC Tel: (202) Fax: (202) creynolds@zuckerman.com 6