Opposition Brief — Keene Corp. v. Independent School District No. 622

— | Supreme UOUrT, U.d.

A

v

FILED

No. 89-436 SEP 22 1989

ac JOSEPH F. SPANIOL, JR.

In The CLERK

Supreme Court of the United States

October Term, 1989

KEENE CORPORATION,

Petitioner,

VS.

INDEPENDENT SCHOOL DISTRICT NO. 622,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION

TO A WRIT OF CERTIORARI

/

HERTOGS, FLUEGEL, SIEBEN NESS, MOTLEY,

POLK, JONES AND LOADHOLT, RICHARDSON

LaVERDIERE, P.A. & POOLE, P.A.

Samuel H. Hertogs Edward J. Westbrook

Michael R. Sieben J. Anderson Berly, Ill

Harvey N. Jones 151 Meeting Street, Suite 600

Michael R. Strom P. O. Box 1137

999 Westview Drive Charleston, South Carolina 29402

Hastings, Minnesota 55033 (803) 577-6747

(612) 437-3148

Altorneys for Respondent

1989-Executeam Companies, Inc., 93 W. Lite Canada Rd., St.Pau! MN 55117 + (612) 483-8793 - 800-747-8793

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1.

QUESTIONS PRESENTED

Should this Court grant interlocutory review on a State

Court’s pretrial discovery order?

Should this Court consider federal constitutional claims

which were first raised on appeal and which the State

Appellate Courts declined to decide because of their rule

against hearing questions not raised in the trial court?

Do documents of a party become undiscoverable simply

because they have also been produced in a different case-in

a different court and have been placed under a consent

protective order in that other court?

LIST OF PARTIES

AND RULE 28.1 LIST

Respondent incorporates the List of Parties and Rule 28.1

List of Petitioner.

TABLE OF CONTENTS

QUESTIONS PRESENTED .............-508:5 i

LIST OF PARTIES AND RULE 28.1 LIST ....... ii

TABLE OF CONTENTS .........-...05+4. iii

TABLE OF AUTHORITIES ................. Vv

STATEMENT OF FACTS ............52006- 1

REASONS FOR DISALLOWANCE OF WRIT ..... 3

PORE P Sh Rk wee ce eee ee ee ee 3

I. THIS COURT SHOULD NOT GRANT

INTERLOCUTORY REVIEW OF THIS

PRETRIAL DISCOVERY ORDER ....... 3

II. PETITIONER FAILED TO PRESERVE

ITS DUE PROCESS CHALLENGES FOR

REVIEW, NECESSITATING DENIAL OF

REVIEW AS TO THOSE ISSUES ....... 4

Ill. REVIEW OF THE MINNESOTA |

COURTS’ REJECTION OF

PETITIONER’S UNSUBSTANTIATED

PRIVILEGE CLAIMS IS NOT

NECESSITATED BY SPECIAL OR

IMPORTANT REASONS, BUT WOULD

MERELY INVOLVE THE REHEARING

OF A STATE COURT DISCOVERY

a re ae & Bh wR wae 8 4

APPENDIX

A. Independent School District No. 622 v.

Bor-Son Construction, Inc., et al.

No C3-89-389 (Minn. App. 1989)

(Response of Independent School

District No. 622 to Keene Petition

to Minnesota Court of Appeals ......... A-1

eee

B. Independent School District No. 622 v.

Bor-Son Construction, Inc., et al.

No. 5841701 (1989) (Memorandum of

Independent School District No. 62?

CD wie ane eww hese ieee B-1

Independent School District No. 522 v.

Bor-Son Construction, Inc., et al.

No. C5841701] (1989) (Keene Response to

Discovery HOGG) ce te es C-1

iV

TABLE OF AUTHORITIES

CASES

Cobbledick v. United States, 309 U.S. 323 (1940)... .

Hill v. California, 401 U.S. 797 (1971) ..........

Illinois v. Gates, 462 U.S. 213 (1983) ......0.....

In re: Welfare of K.T., 327 N.W.2d 13

aaa vn k ks 6a 68 rare ak

Keene v. Insurance Company of North America

EE EE ee ee ee

McGoldrick v. Compagnie Generale,

OT ES ee

‘National Labor Relations Board v. Pittsburgh

Steamship Company, 340 U.S. 498 (1951) ........

Pennsylvania v. Richie, 480 U.S. 39 (1987) .......

Sprader v. Mueller, 265 Minn. 111,

oP 8.

United States v. Ryan, 402 U.S. 423 (1971) .......

TREATISE

D. Herr and R. Haydock 2 Minnesota Practice Civil,

Rules Annotated § 26.9 (1989) ..........0.....

n= 0

~~

wy

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989 -

Keene Corporation,

Petitioner,

v.

Independent School District No. 622, :

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION

TO A WRIT OF CERTIORARI ~

STATEMENT OF FACTS

This petition involves one portion of one pretrial discovery

order entered by a Siate Court in Minnesota, in a lawsuit which

was filed in 1984 and which has yet to go to trial. Most of

the five years of litigation have been spent on discovery and

discovery disputes. Numerous motions to compel by respon-

dent have been filed and granted.

In response to several of respondent’s requests for produc-

tion of documents, petitioner refused to provide the specific

documents but instead directed respondent to a collection of

over four million documents contained in petitioner's record

center."

In opposition to the argument that the protective order

* The State Court order which Keene seeks this court to overrule, in

addition to requiring the disclosure of material which Keene alleged, but did

not establish, was privileged, also overruled Keene's objections to specifying

which of the four million documents were responsive to plaintiff's discovery

requests. The District Court specifically found that Keene failed to meet the

requirements of M. R. Civ. P. 33.03.

issued in the insurance case blocked discovery in this case,

respondent pointed out that the language of the protective order

itself disavowed any such meaning:

6. Nothing in this Order shall be construed in any way to

control the use, dissemination, publication or disposition (1)

by a producer or designator of documents or information

existing in the files of that party prior to the date of the

order, or (2) by a producer or designator of documents or

information received at any time by that producer or desig-

nator outside the course of this litigation. The privileged

or confidential status, if any, of such documents or infor-

mation shall be determined without respeci to this order.

The trial court overruled petitioner’s objections and ordered

the documents produced. Order of February 1, 1989. See

Keene Appendix A-1. No constitutional claims had been raised

in the trial court.

Petitioner’s response to this order was to seek discretionary

review and a Writ of Prohibition from the Minnesota State

Court of Appeals. See Appendix A-1, Response to Keene's

Petitions. In that appeal, petitioner first raised some of the

federal constitutional issues it now wishes to present to this

Court. The Court of Appeals declined to review the action by

way of appeal, and rejected the petition for a Writ of Prohibi-

tion, finding that "Keene failed to establish the Trial Court has

compelled disclosure of information which is clearly not dis-

coverable, so-as to justify the issuance of prohibition on petitio-

ner’s claims of privilege". The Court did not address the

constitutional claims. See Keene Appendix B-4, Paragraph 9.

Petitioner finally sought review from the Minnesota

Supreme Court from the order of the Court of Appeals, which

was similarly denied. See Keene Appendix C-1.?

? Petitioner has also attempted to circumvent the rulings of the Min-

nesota Courts by filing a 28 U.S.C. § 1983 action in the United States

District Court for the District of Minnesota against the School District, its

board members and counsel, and the trial court judge. That action sought to

enjoin the named defendants from enforcing the February 1, 1989 Order.

The United States District Court, Judge Paul A. Magnuson, recognized that

Keene's purported civil rights action was merely an attempt to obtain review

of the Minnesota Courts’ rejection of Keene's privilege claims, and held that

it was without jurisdiction to entertain such an action. See Keene Appendix

2

This petition followed.

REASONS FOR DISALLOWANCE OF WRIT

The underlying subject matter of Keene's petition, despite

its claims of important federal questions, is merely a pretrial

discovery dispute in the Minnesota State Courts. As this Court

has held on numerous occasions in the past, such disputes are

not subject to interlocutory review by this Court.

Additionally, petitioner failed to raise its purported due

process arguments at the trial court level. Consequently, petiti-

oner has failed to preserve these issues for appeal to either this

Court or the Minnesota appellate courts. The due process

issues are thus inappropriate for review on this basis as well.

Finally, Independent School District No. 622 submits that

the issues before this Court, were it to grant Keene’s petition,

would consist of nothing more than review of the Minnesota

courts’ application of discovery and privilege rules identical to

those in a federal action. Such issues are by no means

“special”, and are at best "important" only to the partics them-

selves. Keene has failed to meet its burden under this Court’s

Rule 17.1, and its petition should be denied.

ARGUMENT

I. THIS COURT SHOULD NOT GRANT

INTERLOCUTORY REVIEW OF THIS PRE-

TRIAL DISCOVERY ORDER.

This Court has repeatedly held that it will not grant inter-

locutory review of pretrial discovery orders. Cobbledick v.

United States, 309 U.S. 323 (1940), United States v. Ryan, 402

U.S. 423 (1971), Pennsylvania v. Richie, 480 U.S. 39 (1987).

Despite petitioner’s attempt to create a constitutional issue out

of what is no more than State Court discovery dispute, it can-

not avoid the fact that this case is, at this time, not subject to

review. This Court should consequently deny petitioner’s peti-

tion.

D-1, E-1. Petitioner is currently pursuing an appeal of Judge Magnuson’s

Order in the Eighth Circuit.

II. PETITIONER FAILED TO PRESERVE ITS DUE

PROCESS CHALLENGES FOR REVIEW, NEC-

ESSITATING DENIAL OF REVIEW AS TO

THOSE ISSUES.

As a condition precedent to review of a federal question by

the Supreme Court on certiorari from the highest state court, the

state court must have "passed upon" the issue itself. /ilinois v.

Gates, 462 U.S. 213, 218-220 (1983). See also Hill v. Cali-

fornia, 401 U.W. 797, 805 (1971), McGoldrick v. Compagnie

Generale, 309 U.S. 430, 434 1940). As admitted by Keene in

its Petition at page 9, it failed to raise its due process claims

until its petitions to the Minnesota State Court of Appeals.

Under Minnesota law, issues not presented to the trial court may

not be raised for the first time on appeal. dn re: Welfare of

K.T., 327 N.W.2d 13, 16-17 (Minn. 1982). Petitioner’s argu-

ments to the Minnesota appellate courts concerning the right to

assistance of counsel, the right to access to the courts, and the

alleged irreparable harm threatened were therefore not subject to

review. Consequently, the Minnesota appellate courts ignored

these issues, and they are not properly before this Court.

lil. REVIEW OF THE MINNESOTA COURTS’ RE-

JECTION OF PETITIONER’S UNSUBSTANTIAT-

ED PRIVILEGE CLAIMS IS NOT NECESSITAT-

ED BY SPECIAL OR IMPORTANT REASONS,

BUT WOULD MERELY INVOLVE THE REHEA-

RING OF A STATE COURT DISCOVERY MO-

TION.

Although Keene’s petition attempts to dress this garden

variety discovery dispute in constitutional clothes, it cannot avoid

the underlying fact that each of its arguments is premised on the

unsupported assertion that the documents ordered produced are

privileged. Consequently, the federal issues petitioner hopes to

raise before this Court are non-existent unless this Court were to

determine as a preliminary matter that the Minnesota courts’

rejection of petitioner’s privilege claims was error.

This threshold issue does not involve any interpretation of

federal law or the Constitution, and involves no more than the

proper application of the law of privilege in Minnesota state

court discovery disputes. Resolution of this issue will only de-

termine whether certain specific documents are indeed privileged

4

as claimed, or whether petitioner met its burden of proving that

‘privilege. While important to the litigants in this case, this state

law issue is Of no general importance and is not within the scope

of issues reviewable under Rule 17.1.

Petitioner’s attempt to convince this Court that the Minnesota

trial court never rejected its privilege claims (as it granted re-

spondent’s motion without opinion) is strained at best. In order

to grant the respondent’s motion, the trial court necessarily con-

templated and overruled these objections as being without merit.

Indeed, the Minnesota Court of Appeals denied petitioner’s writ

of prohibition on the specific grounds that petitioner failed to

establish its privilege claims. See Keene Appendix B-4, para-

graph 9. x.

Petitioner’s additional argument that the respondent made no

challenge to its privilege claims misstates the entire substance of

the underlying motion hearing. On the contrary, the respondent’s

written submissions directly refuted Keene’s unsubstantiated

privilege claims. See Appendix B-4. Further, petitioner ignores

the fact that in such a challenge, it is incumbent on the party

asserting the privilege to substantiate it, not on the discovering

party to disprove it. Sprader v. Meuller, 265 Minn. 111, 121

N.W.2d 176 (1963); See also D. Herr and R. Haydock 2 Min-

nesota Practice Civil Rules Annotated § 26.9 (1989).

Further, petitioner’s attempt to sidestep these facts by sepre-

senting to this Court that “it had already made all the record

center documents available" (Keene Petition at 7) misstates the

substance of the dispute. The insurance litigation documents

sought by the respondent are and have always been a discrete

subset of documents in Keene’s record center. Despite the fact

that petitioner had offered to make the four million documents —

available for inspection generally, it strenuously objected to pro-

ducing separately those record center documents which it had

also produced in its insurance litigation. The Minnesota courts

properly saw this objection as an attempt to limit the respon-

dent’s discovery to the prohibitively expensive task of reviewing

each of Keene’s four million documents, and properly rejected

this attempt.

The Minnesota courts also could not help but take note of

the fact that despite its arguments that the documents sought

were “undeniably privileged", petitioner strenuously objected to

producing a privilege index for the requested documents. See

Appendix C-2-3, No. 6. Petitioner’s objection necessitated the

trial court’s February 1, 1989 Order compelling production of

’

5

PRR " ain anette ee ca nae TE eS aS eT er a

o~

such an index, but petitioner has to date failed to comply. |

Given petitioner's refusal to substantiate its claim by means of a |

privilege index, it is difficult to imagine any court sustaining its |

objections.

Petitioner’s repeated objection that the requested documents

were placed under seal by the U.S. District Court for the District

of Columbia ignores the fact that in entering the order, the Court

merely accepted a stipulated order of the parties. Petitioner also

ignores the fact that the protective order specifically permits

petitioner to disseminate any document which it produced in its

] insurance litigation or any documents existing in its files prior to

the date of the protective order. See page 2, supra. It further

States that it makes no determination that any of the documents

/ are privileged. id. Notwithstanding the clear language of the

| / protective order, petitioner has nonetheless refused to separately

produce any document produced in that litigation, and has simila-

rly refused to list such documents such that the respondent or the

Court could determine which, if any, of the requested documents

is indeed precluded from disclosure under the protective order.

In summary, Keene’s petition is premised on the validity of

its claims that the documents ordered produced are absolutely

privileged or under a Federal Court seal prohibiting their disclo-

sure. The Minnesota courts have repeatedly rejected those claims,

and there exists no reason to suppose that further review will

hold otherwise.

Finally, petitioner’s claims that this rejection of unsubstan-

tiated privilege claims amounts to a denial of right to counsel,

access to courts, and due process is baseless. Despite petiti-

oner’s citation of this Court’s opinions involving the denial of

counsel in criminal capital cases, the right to a hearing in ter-

mination of welfare benefit cases, and the disqualification of a

judge due to a relationship to one of the parties, to name but a

few, the constitutional rights protected in those cases are simply

not present here. The authority is far field from the issue pre-

sented here, and does not make petitioner’s state law claims of

constitutional dimension.

This Court has previously held that it will not grant certiorari

to review a decision that rests solely on an analysis of the facts

or to determine whether the evidence supports a judgment of

another court. National Labor Relations Board v. Pittsburgh

Steamship Company, 340 U.S. 498, 503 (1951). Issuance of a

writ in this case would result in nothing more than such a re-

vicw. Keene’s petition presents no issues of special importance

6

ga.

to necessitate review, and the respondent thus respectfully re-

quests this Court deny certiorari.

Dated: September 22, 1989.

Respectfully submitted,

HERTOGS, FLUEGEL, SIEBEN,

POLK, JONES, LaVERDIERE, P.A.

Samuel H. Hertogs ..

Michael R. Sieben

Counsel of Record

Harvey N. Jones

Michael R. Strom

Attomeys for Plaintiff

999 Westview Drive

Hastings, Minnesota 55033

(612) 437-3148

NESS, MOTLEY, LOADHOLT,

RICHARDSON & POOLE, P.A.

Edward J. Westbrook

J. Anderson Berly, III

151 Meeting Street, Suite 600

P. O. Box 1137

Charleston, South Carolina 29402

(803) 577-6747

STATE OF MINNESOTA

‘IN COURT OF APPEALS

Independent School District

| Rie ata

Plaintiff,

VS.

PLAINTIFF’S RESPONSE

Bor-Son Construction, Inc. TO PETITION FOR

Keene Corporation (successor- WRIT OF

in-interest to Baldwin-Hiil PROHIBITION

Company, Baldwin-Ehret-Hill

Company, and Keene Building APPELLATE COURT

Products Corporation); CASE NO. C3-89-389

Defendants,

and ‘

Bor-Son Construction, Inc.

Third-Party Plaintiff, * :

VS.

Corwin, Seppenan and Associates, Inc.

and Insulation Sales Company,

Third-Party Defendants.

TO: THE COURT OF APPEALS OF THE STATE OF

MINNESOTA:

Respondent, Independent School District No. 622 (the

"School District"), requests this Court deny Petitioner Keene

Corporation’s Petition for a Writ of Prohibition dated March 2,

1989.

A-l

STATEMENT OF FACTS

On February 1, 1989 the Washington County District Court,

Judge J. E. Cass, entered an order in response to the School

District’s Motion to Compel Discovery and Keene’s Motion for a

Protective Order (see pertinent memoranda, Keene Appendix 11

and 12, and Respondent’s Appendix "B", and Transcript of hear-

ing, Respondent’s Appendix "A". The Court’s Order overruled

unsubstantiated claims of privilege and relevance, required com-

plete and non-evasive responses to interrogatories where the

requirements of M.R. Civ.P. 33.03 had not been met, and per-

mitted a limited deposition of a Keene counsel legal assistant

with regards to the destruction of certain Keene documents.

Despite Keene’s assertions, the Trial Court carefully scrutin-

ized its objections, rejecting their propriety as well as the incor-

rect factual assertions on which they were based. Keene fails to

meet its burden of demonstrating a clear abuse of discretion, and

its petition should be denied.

BACKGROUND

The School District has brought suite in tort’ to recover for

the removal of toxic asbestos fireproofing in Tartan High School.

This suit is similar to many other asbestos property damage

claims brought in Minnesota, and hundreds more nationally.

Keene is the successor-in-interest and liability to those companies

originally manufacturing the fireproofing product in the building

(known as "Pyrospray"), and recently discovered documents

reveal that Keene itself manufactured the product as well. Keene

has steadfasily insisted that it never manufactured asbestos pro-

' Keene's characterization of this action as one secking economic loss is

a boilerplate assertion made by asbestos product manufacturers when defend-

ing these cases. To date, nearly 60 trial courts nationally have ruled on this

issue, including 3 in Minnesota. Sce In Re: State and Regents Building

Asbestos Cases, Nos. 99081, 99082 (Minn. Dist. Dec. 16, 1988)(Carey, J.

who has been appointed by the Minnesota Supreme Court to preside over all

asbestos cases pending in Minnesota), /ndependent School District No. 709 v.

W. R. Grace So., No. 155716 (Minn. Dist. May 20, 1987)(Litman, J.), and

Federal Reserve Bank v. Carey Canada et al, Civ. No. 3-86-185 (D. Minn.

Aug. 30, 1988)(Devitt, J.). Of these rulings, no Minnesota trial court and

only four courts nationally have accepied Keene’s position, and each of the

four courts doing so has either been reversed on appeal or overruled in a

subsequent trial court opinion within that same jurisdiction.

A-2

ducts.

Keene Corporation has attempted to utilize its alleged prede-

cessor status as a shield against discovery, asseriing that it need

only collect the documents of its predecessors in a central loca-

tion and allow document inspections. Keene admits that its

record center contains over 4 million documents, including an

unspecified amount of irrelevant material. In response to plain-

tiff’s discovery in this case, Keene has typically provided no

more than self-serving responses accompanied by an offer to

_/ produce documents at the record center. Keene does not attempt

to specify which documents are responsive to individual requests,

‘potentially necessitating a review of each of the 4 million docu-

ments in order to obtain a single response. The School District

consequently moved the Trial Court for an order compelling

proper responses, which was granted on November 21, 1988.

The resulting responses from Keene Corporation were similarly

vague and non-responsive and continued to improperly direct

plaintiff to its 4 million documents in its record center.

The School District also attempted to avoid the review of

this vast number of documents (which Keene itself asserts would

cost more than the amount of the School District’s claim), and

consequently served a Request for Production of certain discrete,

sets of documents in. Keene’s possession in August, 1988. This

Request included:

1. Specific documents from Keene’s record center which

had been similarly reviewed by and produced to the United

States Government in litigation involving similar issues as in

this case,

2. — Specific documents from Keene’s record center or in

possession of Keene’s counsel which had been produced in

litigation with its insurer which also involved issues present

’ in this case,

3. Any documents Keene relied on in preparing responses to

discovery in this case,

4. Keene documents which plaintiff had inspected but which

were later withheld on claims of privilege and relevance, and

5. An index of documents Keene refused to produce due to

alleged privilege.

A-3

Keene objected to providing any of these documents.

Further, the School District noted the deposition of Mr.

David Rehbein, a paralegal employed by Keene's national coun-

sel who had testified in Keene's insurance litigation that he had

destroyed certain Keene documents. The limited purpose of this

deposition was io ascertain which documents had been destroyed

and why. The deposition was not to require disclosure of any

privileged or confidential material.

Keene ultimately moved for a protective order to prohibit

Mr. Rehbein’s deposition, and the School District similarly

moved to compel responses to that discovery subject to the

Court’s November 21, 1988 Order, as well as the August, 1988

document requests. Both matters were heard on January 12,

1989.

On February 1, 1989, the Court denied Keene’s motion, and

similarly ordered Keene to respond to plaintiff's discovery, im-

plicitly rejecting Keene’s factual assertions which had becn dis-

puted by plaintiffs, and overruling Keene’s objections.

ISSUES

1. Whether the Triai Court clearly abused its discretion

in rejecting claims that certain documents were priv-

ileged and/or under scal when the factual basis for

these claims was disputed.

2. Whether the Trial Court clearly abused its discretion

in overruling Keene’s reliance on M.R.Civ.P. 33.03

where it failed to specify the responsive documents

and failed to establish that its burden equaled or

exceeded that of the School District.

3. Whether the Trial Court erred in allowing a limited

deposition of a Keene legal assistant with respect to

the destruction of various documents.

REASONS FOR DENYING KEENE’S PETITION

The issuance of an extraordinary writ is improper in this

case where the underlying facts of Keene’s privilege and burden

Claims are in dispute, and where the Trial Court determined that

Keenc’s factual claims were incorrect. This is not a case where

the Trial Court ignored applicable law as Keene suggests, but

A-4

rather one where it applied the law to the facts as it found them.

In such a_case, this Court should respect the sound judicial

the Trial Court, who scrutinized Keene's assertions

and rejected them.

The Court correctly applied M.R.Civ.P. 33.03 and found that

Keene’s responses did not meet its requirements. The Court had

ample basis for concluding that Keene had not adequately speci-

fied the responsive documents, and had also failed to meet its

burden of proving that the School District’s burden was less than

or equal to that of Keene.

The Trial Court was also within its discretion in ordering

Keene to produce documents which it claimed were under seal

when the evidence revealed they were not. The documents

produced to the goverment were merely copies of a specifically

defined subset of those documents in Keene’s record center,

which Keene did not deny would be produced to the School

District if it found them independently. Similarly, the evidence

supported plaintiff's assertion that the requested insurance litiga-

tion documents were actually in the possession of Keene’s coun-

sel and/or in its record center. While copies of some may have

been under seal (and are not sought by plaintiff), the Court

properly ordered disclosure of those not under seal.

The Trial Court further properly ordered the production of

documents relied on in preparing Keene’s discovery responses,

documents which had previously been produced to plaintiff for

inspection but were subsequently withheld, and a privilege index

to enable a challenge of Keene’s privilege claims. Also, the

Court did not in any respect allow the discovery of privileged

information when it permitted a limited deposition relating to the

destruction of various documents.

The history of this litigation has demonstrated that Keene

will oppose any type of meaningful discovery, and its responses

and objections are drafted with that goal in mind. The Trial

Court has overseen nearly 5 years of such tactics, which have

required 5 separate motions to compel. The Trial Court was in

the best position to evaluate the .merit of Keene’s factual asser-

tions, and given the evidence produced by the School District,

was well within its discretion in rejecting them.

WHEREFORE, Respondent respectfully requests an Order

denying the Petition for a Writ of Prohibition.

Dated: March 9, 1989.

Respectfully submitted,

HERTOGS, FLUEGEL, SIEBEN,

POLK, JONES & LaVER-

DIERE, P.A.

By s/Michael R. Sieben

Michael R. Sieben

Michael R. Strom

- Attomeys for Plaintiff

999 Westview Drive

Hastings, Minnesota 55033

Telephone: (612) 437-3148

Sieben Atty. Ret. No.: 100791

Strom Atty. Reg. No.: 170082

Mr. Edward J. Westbrook

Mr. J. Anderson Berly III

Ness, Motely, Loadholt,

Richardson & Poole

Co-Counsel for Plaintiff

151 Meeting Street, Suite 600

P. O. Box 1137

Charleston, SC 29402

Telephone: (803) 259-3526

STATE OF MINNESOTA

DISTRICT COURT

COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT

School

District No. 622

Plaintiff,

VS.

Bor-Son Construction, Inc.;

Keene Corporation (successor-

in-interest to Baldwin-Hill Company,

Baldwin-Ehret-Hill Company and

Keene Building Products Corpcration),

Defendants,

and

Bor-Son Construction, Inc.

Third-Party Plaintiff,

VS.

Corwin, Steppenan and Associates,

Inc. and Insulation Sales Company,

Third-Party Defendants.

File No. C5841701

Property Damage

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION

TO KEENE’S MOTION FOR A PROTECTIVE ORDER

I.

INTRODUCTION

Keene Corporation continues its long-standing tactics to in

B-1

response to interrogatory number 37 of plaintiff's third set of

interrogatories. Plaintiff served this deposition notice on Keene

presuming it would prefer to coordinate the scheduling of an

elderly retired employee’s deposition with whom plaintiff sus-

pects Keene still has a consulting relationship. if Keene dis-

claims such relationship and refuses to assist in scheduling the

deposition, and if Keene will certify this is still Mr. Wilson’s

correct address, then plaintiff will happily subpoena him for a

deposition at plaintiff's convenience.

B. AS TO THE DEPOSITION OF DAVID REHBEIN

AND_

C. AS TO THE DEPOSITION OF THE _INDIVI-

DUAL{S) MOST FAMILIAR WITH THE DE-

STRUCTION AND DISMANTLING OF CERTAIN

KEENE FILES

Keene spends the bulk of its memorandum of law arguing

against plaintiff's desire to depose Mr. Rehbein. Contrary to

what Keene has stated, plaintiff desires to depose Mr. Rehbein

on only one narrow, very limited subject area, to wit: his invol-

vement with the review, collection, disposal, destruction ~and

dismantling of certain Keene files and records discussed in his

August 22, 1984 deposition in the case Keene Corporation v.

I.N.A. et al., C.A. 78-1011 (D.D.C.) pages 37-40 and 61-68.

Plaintiff does not intend to inquire on a wide array of subjects as

Keene apparently fears tut rather fully intends to limit its ex-

amination to that one area. Thus, Keene’s fears about a viol-

ation of the attomey client privilege are not well taken.

Plaintiff first learned of Mr. Rehbein’s activities as a result

of discovery, I.N.A. propounded to Keene after the Rehbein

deposition was taken in Keene v. ].N.A. (Exhibit J). Since asking

this interrogatory in this case, Keene has strenuously opposed

Plaintiff's effort to obtain any discovery whatsoever on this

particular point.

Plaintiff is entitled to know, inter alia, what Mr. Rehbein did

in collecting and organizing the documents produced in the

insurance litigation, who told him what to do, what they told

him to do, who supervised him, how he went about doing it,

who participated in those decisions, what evidence was destroyed,

and what files were dismantied. Destruction of evidence is

highly improper conduct and this court should not allow Keene

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to hide behind a hollow piea of attomey client privilege to keep

such information from being revealed.

Since Keene has refused to describe the particular passages

or produce the Rehbein deposition as sought by plaintiff's inter-

rogatories 1-4 of the plaintiff's third set of interrogatories

(Exhibit K), and request for production no. 1 of plaintiff's fourth

set of request for production (Exhibit L), plaintiff has sought

instead a less desirable alternative -- a limited deposition of Mr.

Rehbein. Keene cannot have it both ways; it can’t permanently

keep Mr. Rehbein silent and hidden away. If Keene will not

voluntarily produce its national counsel’s personal copy of the

Rehbein deposition transcript with exhibits -- which cannot pos-

sibly be subject to, the protective order -- then this plaintiff

should be allowed to pursue limited discovery of Mr. Rehbein

about the dismantling and destruction of certain Keene files.

Plaintiff candidly acknowledges that it would prefer to have

this court order Keene to produce its counsel’s personal copy of

the Rehbein transcript and exhibits. By plaintiffs January 4,

1989 motion to compel, plaintiff seeks precisely, this remedy. In

fact, plaintiff seeks production of the entire Keene v. J.N.A. trans-

cript in that motion. Keene’s national law firm, Anderson Rus-

sell Kill & Olick, by one of its partners, Mr. Jerold Oshinsky, in

the context of other litig2tion for other clients has openly stated

that: "We have the massive Keene record in my office..." (Tr. p.

19, 1.5) National Gypsum Company v. American Motorist Insur-

ance Company, CA No. 82-1332, D.D.C. 2/28/84) (Exhibit M).

While parts of the Keene v. /.N.A. record are in fact subject

to a protective order, this protective order cannot be said to

govem a firm’s personal copy of that information. This is espe-

cially true since the information and documents Keene produced

in its insurance litigation came from its New Jersey document

repository. This is the same repository to which Keene habitual-

ly refers plaintiff for a response to every discovery request pro-

pounded. Keene cannot on the one hand invite plaintiff into its

document repository and then on the other hand claim privilege

to documents so offered. This is criminally contumacious

conduct. Blake Assoc. Inc. v. Omni Spectra Inc., 118F.R.D. 283

(D. Mass. 1988). Nor can Keene hide and protect damaging

evidence and documents by placing such in the hands of its

lawyers. If keene volunteers to this plaintiff access to its docu-

ments in its New Jersey warehouse, then it has no grounds what-

soever to claim a protection from disclosure when plaintiff secks

documents from that same original source, but which were ac-

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tually produced in another case. This is especially true since an

attorney from Keene’ national law firm, Mr. Oshinsky, has stated

in the context of other litigation on behalf of another client that

he has the entire transcript of the Keene vy. I.N.A. case in his

office (Exhibit M).

Keene argues that the deposition and documents plaintiff

seeks have no bearing on plaintiff's claims. This contention is

not true however. By Keene’s own admission, Rehbein’s tes-

timony concerns "Keene’s claim for punitive damages for bad

faith" [Keene memorandum page 6]. A necessary part of this

testimony will entail the actions, activities, and special knowledge

of Keene vis a vis its insurance carrier. Thus, this school district

plaintiff and defendant, I.N.A. stand in analogous situations, since

both have claimed (for different reasons) that Keene had special

knowledge about the harms and hazards of asbestos exposure.

I.N.A. has argued this to show superior knowledge lay with

Keene and that I.N.A. too was defrauded by Keene’s actions and

thus should not be responsible for providing insurance coverage

under the various policies. This school district plaintiff on the

other hand argues Keene’s superior knowledge and its failure to

warn is one of the reasons it is liable for damages. Unquestion-

ably then, some of the key issues in Keene’s insurance litigation

are the same as some of the issues in the instant case.

Not all of the documents produced in Keene’s insurance

litigation are subject to a protective order and thus Keene could

easily produce all of the unprotected documents it produced in

the insurance litigation. Such documents could easily be copied

from Mr. Oshinsky’s personal copy of the entire Keene v. I.N.A.

transcript that he has indicated his firm has. (Exhibit M). Addi-

tionally, Keene could produce a privilege index setting forth the

identiiy of those documents to which it now asscris a privilege,

or protection under Judge Green’s order’. Plaintiff belicves that

Keene should be required to produce such a privilege index for

every document it claims is protected from discovery in this case

so that a meaningful independent assessment can be made of

such claims.

' Judge Green has recently discussed with a Texas state court judge a

plan wherein a specially appointed Master in Chancery will proceed to review

the entire Keene v. 1NA. transcript for the purpose of selecting relevant

documents for production to asbestos personal injury plaintiffs in Texas.

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STATE OF MINNESOTA IN DISTRICT COURT

COUNTY OF WASHINGTON TENTH JUDICIAL DISTRICT

Independent School District

No. 622,

Plaintiff, KEENE CORPORATION'S

RESPONSE TO

vs. PLAINTIFF’S FOURTH

SET OF REQUESTS FOR

Bor-Son Construction, Inc.; PRODUCTION

Keene Corporation (successor-

in-interest to Baldwin-Hill File No. C5-84-1701

Company, Baldwin-Ehret-Hill

Company and Keene Building

Products Corporation)

Defendants,

and

Bor-Son Construction, Inc.

Third-Party Plaintiff,

vs.

Corwin, Seppenan & Associates, Inc.,

and

Insulation Sales Company,

Third-Party Defendants.

INTRODUCTION

Keene Corporation ("Keene") has never mined asbestos, nor

manufactured, processed, fabricated, sold, distributed, or otherwho

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has personal knowledge of the vast majority of the information

contained at the document depository. The documents are not

sorted by categories. The documents have been made available

to plaintiff at Kecne’s document depository for inspection -and

copying. See also, Introduction.

4. Produce any and all patent-related documents concerning

the product Pyrospray, including but not limited to, a patent-

related document from Pearce to Campbell dated August 8, 1970,

identified as No. AFO0S263-67 which was earlier produced for

inspection but not copying to counsel for Plaintiff in September

of 1987 during his review of Keene’s documents in the New

Jersey warehouse.

RESPONSE TO REQUEST NO. 4: Documents available in

this regard are on file at Keene’s document depository in New

Jersey and have been made available to plaintiff for inspection

and copying. It is Keene’s belief that James Campbell, the

recipient of No. AF005263-67, was an attorney advising Keene

on patent matters. Counsel for Keene is attempting to confirm

this information.

5. Produce all documents marked, but not already produced,

to Plaintiff’s counsel, Charlie Erickson for copying, upon his

inspection of documents at Keene’s warehouse facility. September

21-23, 1987.

RESPONSE TO REQUEST NO. 5: All marked documents

were produced with the exception of documents not requested,

not relevant to the issues in this action, and no reasonably calcu-

lated to lead to the discovery of admissible evidence.

6. Produce an index to every document arguably responsive

to any of plaintiff's discovery requests served in this case to

which you assert any privilege justifying non-production of the

document. This index should include the date of the document,

the author addressee, a bricf description of the document and the

reason purportedly justifying the alleged privilege.

RESPONSE TO REQUEST NO. 6: Keene objects to this

request as being unduly burdensome, harassing, or oppressive.

Keene objects to this request on the grounds that it is overly

broad as to timc, scope, or location. Kecne objects to this re-

C-2

quest on the grounds that it seeks information which is not

relevant or is not reasonably calculated to lead to the discovery

of admissible evidence.

DATED: September 9, 1988

MASLON EDELMAN BORMAN

& BRAND

By s/Mary R. Vasaly

David F. Herr (#44441) 7

Mary R. Vasaly (#152523)

Mark W. Lee (#184214)

1800 Midwest Plaza

Minneapolis, Minnesota 55402

(612) 339-8015

ATTORNEYS FOR DEFENDANT

KEENE CORPORATION

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