Document Page 1 of 11 UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA Charlotte Division IN RE: GARLOCK SEALING TECHNOLOGIES LLC 1, et al. Debtors. Case No. 10-31607 Chapter 11 Jointly Administered 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 (the Protocol ) (Docket No. 3060), Debtors Garlock Sealing Technologies LLC, Garrison Litigation Management Group, Ltd., and The Anchor Packing Company, by and through their undersigned counsel, hereby file this Motion (this Motion ) to place under seal or redact certain materials in the record of the estimation proceeding, described more particularly below, that are (1) subject to protection of the attorneyclient privilege or work product immunity or (2) contain social security numbers, dates of birth, or other information that Federal Rule of Bankruptcy Procedure 9037 requires to be redacted. Each specific document (or portion of document) or the testimony of any witness that Debtors seek to be sealed or redacted and the reasons for such sealing or redaction are identified and described in Exhibit A to this Motion. In addition, Debtors propose redactions of certain information pursuant to Federal Rule of Bankruptcy Procedure 9037 likely to be included in the 1 The debtors in these jointly administered cases, referred to herein as the Debtors or Garlock, are Garlock Sealing Technologies LLC; Garrison Litigation Management Group, Ltd,; and The Anchor Packing Company. 1
Document Page 2 of 11 documents listed in Exhibit B. 2 In further support of this Motion and pursuant to the Protocol, Debtors state: SEALING OF PRIVILEGED MATERIALS GARLOCK WAS COMPELLED TO PRODUCE 1. During proceedings to estimate the aggregate amount of allowed present and future mesothelioma claims against Garlock, the Official Committee of Asbestos Personal Injury Claimants (the ACC ) and the Future Asbestos Claimants Representative (the FCR ) advanced a settlement approach to estimation pursuant to which they offered evidence of Garlock s settlements of mesothelioma claims prior to bankruptcy as a basis to estimate the aggregate allowed amount of present and future mesothelioma claims against Garlock. 3 A premise of their approach was that Garlock s past settlements reflected Garlock s own view of the amount of its liability for mesothelioma claims. See 2012 Order for Estimation 14-15. 2. Garlock objected to the settlement approach on numerous grounds, including that it violated Rule 408 of the Federal Rules of Evidence, which prohibits the use of settlements to establish the validity or amount of disputed claims. Id. 20. 3. The Court denied Garlock s objections to the settlement approach and its motion to exclude from evidence Garlock s past settlements of mesothelioma claims. 2 The listing of materials in Exhibit B is detailed. Because, in some instances, the detailed descriptions on these exhibits were drawn from exhibit lists that were identified as confidential and are currently under seal, Exhibit B is being served directly to the Court and parties with access pursuant to relevant orders. 3 Briefing and argument on these subjects before the estimation trial were summarized by the Court in its April 13, 2012 Order for Estimation of Mesothelioma Claims (Docket No. 2102) ( 2012 Order for Estimation ). Garlock raised its objections again before trial and at trial. See, e.g., Renewed Motion of Debtors to Exclude Evidence of Debtors Settlements Under Federal Rule of Evidence 408 (Docket No. 2924). 2
Document Page 3 of 11 4. Confronted with the Court s decision to admit Garlock s past mesothelioma settlements in the estimation proceeding, Garlock sought to prove that its past settlements were not a fair reflection of the validity and allowed amounts of mesothelioma claims. Specifically, Garlock contended, (1) the vast majority of settlements were influenced not by Garlock s perception of merit of the settled claims, but by the desire to avoid paying substantial legal fees and expenses necessary to effectively defend the claims and (2) many settlements were infected with the impropriety of certain law firms that, to obtain higher recoveries, suppressed their clients exposures to asbestos containing products of other defendants. 5. In discovery responses served before trial, Garlock identified numerous settled claims that Garlock contended were affected by the suppression of evidence of exposure to other asbestos products. 6. In response to Garlock s denial that its past settlements reflected the merit of claims, the ACC and FCR moved the Court to compel Garlock to produce attorney work product and attorney-client communications setting forth evaluations of settled mesothelioma claims by Garlock and its lawyers and discussing the reasons Garlock such settled cases. The ACC and FCR asserted that, because Garlock disputed the premise that the ACC and FCR put forward that Garlock s settlements were a fair measure of Garlock s liability Garlock impliedly waived privilege protections related to settled Garlock cases. 7. Courts have not recognized an implied waiver in such circumstances. In fact, courts applying precedent applicable in this District 4 have held that, even when a party brings an action alleging that fraud or misrepresentation by a counterparty affected such party s decision to 4 Courts of this District have applied the principles of Rhone-Poulenc Rorer Inc. v. The Home Indemnity Co., 32 F.3d 851 (3rd Cir.1994), in considering whether a party impliedly waives privileges by virtue of its position in litigation. 3
Document Page 4 of 11 settle, such party does not impliedly waive protections of privilege concerning the settlement decision. For instance, the District Court for the Southern District of Mississippi rejected the assertion that a plaintiff that brought suit alleging it was defrauded by a personal injury claimant who provided false information in a pulmonary questionnaire that was a requisite to settling a personal injury claim waives the protection of privileges and immunities surrounding its decision to settle. Ill. Cent. R.R. Co. v. Harried, No. CIVA 5:06CV160-DCB-JMR, 2009 WL 2425985, at *1 (S.D. Miss. Aug. 6, 2009) (denying discovery of documents and parts of documents to which attorney-client privilege applied) (applying principles of Rhone-Poulenc, 32 F.3d at 864). 8. Likewise, the North Carolina Business Court, in an opinion written by now Fourth Circuit Judge Diaz, held that a plaintiff who alleges fraud or misrepresentation does not impliedly waive privileges concerning the subject of the fraud or misrepresentation. Banc of Am. Securities, LLC v. Evergreen Int l Aviation, Inc., No. 03-CVS-9138, 2006 NCBC 2, 2006 WL 401679, 38-41 (N.C. Bus. Ct. Jan. 25, 2006) (applying Rhone-Poulenc, 32 F.3d at 863-64). 9. In its May 31, 2012 bench ruling and subsequent June 19, 2012 order, the Court denied the ACC s and FCR s motion. 5 10. The ACC and FCR renewed their motion on May 24, 2013, seeking privileged documents related to certain specific cases Garlock had identified as ones in which plaintiffs attorneys and plaintiffs had withheld evidence (the Designated Claims ). 11. In a June 6, 2013 hearing on the motion (and a subsequent June 18, 2013 Order), the Court reversed, in part, its previous decision, this time ruling Garlock had waived privilege protections pertaining to certain documents related to the Designated Claims. The Court ruled 5 See Order Denying Motion of the Official Committee of Asbestos Personal Injury Claimants to Compel on Grounds of Waiver the Production of Certain Documents the Debtors have Withheld as Privileged (Docket No. 2315). 4
Document Page 5 of 11 that it did not believe that there s been a wholesale waiver of the privilege, but nonetheless required Garlock to produce specific protected materials. Tr. 6/6/2013 at 159:19-20. 12. In particular, the Court compelled Garlock to produce attorney Major Expense Authorization forms ( MEAs ) and Trial Evaluation Forms ( TEFs ). MEAs documented the approval of settlement decisions and contain the mental impressions and opinions of in-house and trial counsel. TEFs were prepared by Garlock s outside counsel and contain trial plans, updates on the status of trial preparation, and counsel s opinion and assessments of cases. The Court also authorized the ACC and FCR to take depositions of two outside lawyers Garlock intended to call as witnesses and a 30(b)(6) witness to answer questions about the Designated Cases without Garlock s interposing privilege objections. 13. The Court s written order declared that the production of documents and [t]estimony regarding the Designated Claims shall not, of itself, be deemed to effect a waiver as to any mesothelioma claims other than the Designated Claims. June 18, 2013 Order at 7. 14. Immediately after the Court s bench ruling, Garlock moved for reconsideration or, in the alternative, for leave to pursue immediate appellate review, which the Court denied. 15. On July 26, 2013, during the estimation trial, the ACC made another, similar request. This time the ACC sought MEAs for a list of 204 cases that had been described by Garlock witness Richard Magee. (These 204 claims included the 26 Designated Claims.) The Court granted the request from the bench, requiring Garlock to produce MEAs for those claims that were additional to the Designated Claims so as to facilitate the cross examination of Mr. Magee. Tr. 1417:16-18. In that instance also, the Court made clear the production of MEAs will not be a waiver of anything else. Tr. 1417:22-23. 5
Document Page 6 of 11 16. The Court, over Garlock s continuing objection, admitted the MEAs and TEFs into evidence. The Court then allowed the ACC to cross-examine Garlock s outside lawyers and Mr. Magee using these documents. In cross examination, the ACC probed the extent to which the absence of evidence from plaintiffs of their exposures to other asbestos-containing products, particularly asbestos insulation produced by companies that had previously filed for bankruptcy protection, affected Garlock s defense of mesothelioma claims and its settlement decisions. After considering all of the evidence, the Court found that the manipulation of exposure evidence by plaintiffs and their lawyers had a profound impact on Garlock s settlements. Order Estimating Aggregated Liability (January 10, 2014) (Docket No. 3296) at 50. 17. The documents and testimony the Court compelled Garlock to produce (the Compelled Discovery ) and any related materials were identified as confidential and have, heretofore, been subject to protective orders restricting their disclosure. The Compelled Discovery has never been disclosed to the public. 18. Pursuant to the Protocol, Garlock proposes to seal or redact the Compelled Discovery and any briefs, pleadings, transcripts or other documents that reveal the contents of the Compelled Discovery. The specific documents, pleadings, deposition excerpts, and transcript excerpts are listed in Exhibit A to this Motion (the Proposed Sealed Material ). 19. Debtors propose that the Proposed Sealed Material remain under seal for a period that lasts until the two year anniversary of the closing of these cases. 20. Debtors have, where practical in the Proposed Sealed Material, proposed limited redactions of documents instead of the sealing of documents. 6 Instances where Debtors propose 6 As outlined in Exhibit A, for materials such as briefs and sealed pleadings that do not contain line and page number indications, Debtors will provide an Exhibit C which is a compilation of 6
Document Page 7 of 11 sealing a document in lieu of partial redaction concern MEAs and TEFs which would require substantial redaction and which would leave little unredacted information, all of which would be duplicative of publicly available information. 21. This Court found in rendering its decisions compelling the production of the Compelled Discovery that this information was confidential and otherwise protected by the work product immunity and/or attorney-client privilege. 22. Courts routinely conclude the compelling public interest in protecting the confidentiality of attorney-client communications overcomes the presumption of public access to judicial records, thereby authorizing sealing or redaction of documents and information protected by the attorney-client privilege and work product doctrine. See, e.g., Siedle v. 147 F.3d 7, (noting that the attorney-client privilege is precisely the kind of countervailing concern that is capable of overriding the general preference for public access to judicial records ); Powers v. Braun, No. ELH-13-01622, 2013 WL 6623193, at *2 (D. Md. Dec. 16, 2013) (surveying decisions regarding motions to seal based on attorney-client privilege, concluding [c]ourts generally accept a claim of privilege as capable of overriding the presumption of public access and thereby justifying redaction of documents, and sealing documents subject to the privilege). 23. Indeed, courts have relied on the attorney-client privilege as a basis to seal documents from public access even in situations, like the instant case, when the court compelled disclosure of some or all of the privileged materials to parties to the action. See Zawadzki v. Cmty. Hosp. Assn., No. 09-CV-01682-LTB-MEH, 2010 WL 3085719, at *6 (D. Colo. Aug. 6, 2010) (sealing documents subject to the attorney-client privilege, while noting that nothing in proposed, implemented redactions to the Court and parties who have access to such sealed documents under appropriate orders. 7
Document Page 8 of 11 this order alters the Court s order that certain information from the submission be disclosed directly to the opposing party ). 24. In addition, Federal Rule of Evidence 502(d) gives this Court authority to enter orders that provide that even though privileged documents have been disclosed in one proceeding, such disclosure is also not a waiver in any other federal or state proceeding. Id. 25. Notably, the compelled disclosure of these documents came about as a result of the ACC and FCR s settlement approach to estimation, not an approach that Debtors instigated or otherwise sponsored. Debtors, in fact, argued pursuant to Federal Rule of Evidence 408, that Garlock s settlements should not be considered at all. It was the ACC and FCR, not the Debtors, who put the Debtors settlements at issue. 26. The Court s rulings concerning the Compelled Discovery were limited in nature. The Court stated in connection with its first ruling that, although it was ordering the production of protected materials, it did not believe that there s been a wholesale waiver of the privilege. Tr. 6/6/2013 at 159:19-20. The Court further stated that the documents produced and [t]estimony regarding the Designated Claims shall not, of itself, be deemed to effect a waiver as to any mesothelioma claims other than the Designated Claims. June 18, 2013 Order at 7. And, in its additional ruling compelling further production, the Court stated that the production of protected documents will not be a waiver of anything else. Tr. 1417:22-23. 27. Consistent with these limitations, Debtors request that the Court order the Proposed Sealed Material sealed. Sealing these documents is necessary to ensure that the documents disclosure is confined to the context in which their production was ordered; namely, the contested estimation trial. 8
Document Page 9 of 11 28. 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. Sealing also would ensure that no third party could contend that the Court s rulings compelling disclosure in the estimation trial context should be extended to additional privileged materials in another litigation context. 29. Finally, Debtors expect the ACC, plaintiffs and their lawyers in the claims that are the subject of the Compelled Disclosure, and other persons to raise a host of grounds for protecting documents and testimony related to settlements reached between asbestos claimants and Garlock and asbestos claimants and other defendants. Debtors reserve the right, should this Court approve such other grounds warranting the sealing of documents and information subject to the Protocol in the context of motions to seal pursuant to the Protocol, to offer such grounds as bases to seal the Proposed Sealed Documents. PROTECTION OF INFORMATION SUBJECT TO RULE 9037 30. Garlock proposes to redact from all documents or testimony in the record for the estimation proceeding references to an individual s social-security number, taxpayeridentification number; birthdate; name, if the individual is known to be and identified as a minor; financial account numbers; and medical information (except for an asbestos-claimants claimed disease). The specific documents, deposition excerpts and transcript excerpts where such information is likely to be found are listed in Exhibit B to this Motion. 31. Pursuant to the Protocol and Federal Rule of Bankruptcy Procedure 9037, such information must be redacted. 32. Redacting the information as required by Rule 9037 is the least restrictive mechanism for protecting such information. 9
Document Page 10 of 11 33. After reviewing the materials listed in Exhibit B and identifying such information, Garlock proposes to permanently redact such information in accordance with the guidelines in the Protocol and Rule 9037. WHEREFORE, Garlock respectfully requests that the documents and testimony identified in Exhibit A be sealed until the second anniversary of the closing of these cases and the materials identified in Exhibit B be permanently redacted as proposed. 10
Document Page 11 of 11 This 11th day of September, 2014. Respectfully submitted, _s/garland s. Cassada Garland S. Cassada N.C. Bar No. 12352 Jonathan C. Krisko N.C. Bar No. 28625 Richard C. Worf, Jr. N.C. 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 gcassada@rbh.com jkrisko@rbh.com rworf@rbh.com Special Corporate and Litigation Counsel to the Debtors Garlock Sealing Technologies LLC, Garrison Litigation Management Group, Ltd., and The Anchor Packing Company 11