ny order re pump technical manuals ASB-1307-03.pdf

7/28/2019 ny order re pump technical manuals ASB-1307-03.pdf

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611912013

SUPREMECOURT OF THE STATE OF NEW YORK- EW YORK COUNTYPRESENT: SHERRY KLEIN HEITLER

JusticePART 30

IN RE : NEW YORK CITY ASBESTOS L ITIGATIONThis d ocum ents re lates to :ALL WElTZ AND LUXENBURG CASES IN WHICHBLA CKMER PUMP COMPANY ISA DEFENDANT

INDEX NO. 040000/1988MOTION DATE

MOTIONSEQ.NO. 009MOTION CAL.NO.

Th e fo l lowing papers, numbered 1 to were read on th is mot ion to/forPAPERS NUMBERED

I ., I Not ice of Motion] Order to Show Cause- f f idavi ts- xhibi ts ...

Answ er ing Aff idavi ts - xhib i tsReply ing Aff idavi tsCross-Motion: Yes 1.1 No

This motion i s decided in accordance with the annexedmemorandum decision dated ( J y t - p . ("4.

FILEDCOUNTY CLERK'S OFFICENEW YORK

SHERRY KLEIN HEITLER J.S.C.Check one: 1 1 FINAL DISPOSITION 1 1 NON-FINAL DISPOSITION

Check if appropriate: 1 1 DO NOT POST


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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NE W YORK: PART 30 XIN RE: NEW YORK CITY ASBESTOS LITIGATION____l_l_--- - -_______________I_________

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Index No. 40000/88Motion Seq. No. 009This Document R elates to:ALL WEITZ AND LUXENBURG CASES IN WHICH

CLERKS OFF,cEHERRY KLEIN HEITLER, J,:Pursuant to Sectio n 111, paragraph B of the September 20, 1996 Case Management B k r , as

amended May 26,201 1 (CMO), which governs New York City Asbesto s Litigation (NYCAL),defendant Blacknier Pump Com pany (Blackmer) appeals from and seeks a protective order inrespect of the May 8,2013 written recomm endation of Special Master Shelley Rosoff Olsen((Recommendation),which d irects, amon g other things, the produc tion of certain technicalmanuals in Blackmers possession. As set forth below, B lackmers motion for a protective order isdenied and the Special Masters Reco mm endation is confirmed as modified herein.

BACKGROUNDOn May 7,2013, counsel from Weitz & Luxen berg, P.C., on behalf of the large number of

N Y C A L plaintiffs whom they represent (P laintiffs), and counsel for Blackmer, a NYCALdefendan t, conferred with Special Master Shelley Rosoff Olsen regarding a dispute as to thesufficiency of Blackm ers answers to P laintiffs First Standard Set of Liability Interrogatories andRequest for Production of Documen ts (DocumentRequests). CMO 8 VIII(A)(2)(e) provides thatPlaintiffs Document Requests must be fully and substantially answered by all NYCAL

Section 1II.A.of the CMO provides, in relevant part, that [tlhe Special Master shall supervisecompliancewith discovery and, when necessary, make recommendedrulings for the Courtsconsideration on all discovery disputes . . . .

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defendants.The Special Master deterniined that Blackmers responses to th e P laintiffs Document

Requests have been insufficient2and issued her Recomm endation thereon on M ay 8,2013, Sh erecommended, aniong other things, that, subject to any required or appropriate confidentiality,Blackmer must produce all documen ts and materials responsive to Plaintiffs Document Reque sts,including, but not limited to, Blackrner equipment technical manuals and related p ublications,Blackmers drawings, specifications, and correspondence with the United States Navy and NavalShipyards, all records of purchases of asbestos containing materials used in Blackrner equipmentand all documents relating to B lackmers decision to cease use of asbestos containing materials ini ts eq ~iprnen t .~Recommendation 7 4).

By letter dated May 13,2013 ; Blackmer objected to the Recom mendation on the groundsthat it is overbroad in terms of any discovery requests made by Plaintiffs and goes beyond the scopeof the CMO. By letter dated M ay 17,2013, Plaintiffs responded that the Recomm endation shouldbe affirmed because it comports with longstand ing NYC AL instruction and practice. Also on May17 ,2013 , Blackmer submitted an orde r to show cause to this court for a protective order pursuant toCPLR 3101.

The parties appeared before m e on May 22,20 13 at which time they agreed to attempt toresolve their discovery issues. In light of the parties prior letter applications on this issue, I

Blackmers responses to Plaintiffs Document Requests are submitted as Exhibit D toBlackmers June 6,20 13 letter.2

A copy of the Recommendationis submitted as exhibit B to Blackmers June 6,2013 letterapplicationfo r a protective order.See CMO 9 II1,YB.

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minimum showing of exposure to a specific pump at a specific site before Blackmer is required toproduce the technical manual for such pum p. By way of exam ple, Blackmer refers the court to thecase of Leiy v. A .0.Smith, Index No. 190200/12, n which Plaintiffs requested documentationregarding specific ships on which Mr. Levy claimed to have worked. Blackmer purports that itproduced all technical ma nuals, drawings, and spec ifications in its possession for the spec ific shipsat issue, and argues that in so doing it satisfied its docum ent production obligation under the CMO .Plaintiffs assert that the CMO permits exam ination of all technical manuals published by Blackmerduring the pertinent time periods, as o pposed to ex amina tion on a case-by-case basis, in o rder todetermine Blackmers practices in te rms of asbestos. Plaintiffs argue that Blackmers technica lmanuals provide instruction for the proper installation and maintenance o f its various pumps, isdirectly relevant to the foreseeability to Blackmer that the end users of its pumps would be exposedto asbestos by following those instructions .

DISCUSSIONThe NYCAL CM O is designed to allow the parties to obtain reasonably necessa ry

documents and information without im posing undue burdens in order to permit the parties toevaluate the cases, reach early settlemen ts, and prepare unsettled cases for trial. CMO 6 2.Discovery in NYCAL cases is governed by the CM O under which there is full authority in thecourt to issue discovery orders pertaining to ongoing asbestos litigation. Ames v Kentile Floors., 66AD3d 600,60 0 (1 st Dept 2009); see also In reNew York CityAsbestos Litig., 201 3 NY Slip Op.04127 , at *10-11 (1st Dept 2013) (upholding in camera review of data and materials underlyingscientific studies which m ay provide a permissible manner in which to attack the findings thatwould be consistent with the intent of the CM O to minimize the cost of and stream line discovery.)

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Q.A.

Q*A.Q.

A.

pum ps they are, and then there a re drawing s and a descriptive narrative of whatthe pump does. The drawings will give outlining dimensions so the Navy willknow w here, how much room they have to mount things in the ship. It will alsogive cross-sec tion drawin gs which lists all the individual parts that are in with aparts list on there, indicating material, the quantity of the parts in this particularpump or device or whatever it is. Basically, there are some main tenanceinformation ; if youre going to disassemble the pump or do some work on it,heres how you do that. Here are symptoms to look for if the pump isntperforming well. You know , whats it doing; heres what youll likely look for,Its a typical operation -- what w e call Opera tion Installation Manu al. But it givesall those parts numbers to the individual parts so that if the Navy needs to order anew case or a new -- some thing like that, they have the informa tion they need toorder that.And does the Navy tech m anual, a B lackmer Navy tech manual indicate whetheror not there are any asbestos component parts in the pumps?Yes, it does. * * * *In the tech m anuals, there are sections relating to warnings and cautions for thesafety of the personnel, correct?There are some warnings, and yes.And B lackmer would put those in the manuals and give them to the Navy and,ultimately, the Navy, unless they had a problem w ith them,would approve it,correct?Thats correct. Thats my understan ding, yes.

In Awes v Kentile Floors, supra, then Specia l Master Pacheco had directed defendantKentile Floors (Kentile) to produce disco very in respec t of certain tests conducted by Kentilesexpert who had been retained in the matter of Oswald v. A.O. Smith WQterProducts, et al., IndexNo. 111227/01. On November 20,2008, I denied K entiles objections and confirmed the SpecialMasters recomm endation, and Ken tile appea led. When K entile settled with the plaintiff in Oswald,supra, it withdrew its app eal without having produced the disclosure required by my order.Thereafter, on beh alf of all NYC AL plaintiffs, Weitz &Luxenberg sough t to o btain the disclosurethat I had o rdered to be produced in my Novembe r 20,2008 order. Special Master Pacheco again

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ordered such production , and I again confirnied her recommen dation. Of significance was that thesettlement in Oswald did not moot e ither the Special Masters recommendation or my November20,2008 order since the in formation sought in con nection therewith pertained to all ongoingNYCAL cases involving Kentile,

Here, as in Ames v Kentile, supra, the inform ation sought by Pla intiffs pertains to a llNYCAL cases involving Blackm er, and accordingly, should be produced in bulk rather than on acase-by-case basis.7 Plaintiffs have persuasively argued that Blackmers technical man uals willlikely show which of its pumps integrated asbestos containing components, whether Blackmerspecified that its pum ps be insulated with asbestos or not, whether Blackmer recomm ended thatasbestos containing replacement parts be used in maintaining its pumps, and whether Blackrnerwarned of the dang ers associated with asbestos. In light of all of the above, Blackmers conten tionthat the Recommendation goes beyond th e scope of the CMO is without merit.

Relying on Mendelowitz v Xerox Corp., 169AD2d 300,303-04 (1 st Dept 199l) , Blackmerargues that the Sp ecial Masters recoinm endation is overbroad and unduly burdensom e. InMendelowitz, supra, the plaintiff requested, among other things, [clopies of any books, articles orother medical information concerning the effects of asbestos expo sure on human health and safetyin the possession of the d efendant prior to January 1, 1979, that date coinciding with the pla inti ffsdecedents retirement. The plaintiff offered to withdraw th e request if the defendant allowed theplaintiff access to the library ma intained by the defendant in Roch ester, New Y ork, The defen dantrejected this offer and moved for a protective order, which the trial court granted. The First

A significant expenditureof time and money would be required from both sides wereBlackmer permitted to produce its technical manuals on a case-by-casebasis. This isinconsistent with the intent of the CMO to minimize the cost of and streamline discovery.

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Dep a-tnicnt explained that a deman d for the production of documents must sp ec ifj the itenis soughtwitli reasonable particularity, that the burden of proving specificity is on the requesting party, andthat the utilization of the languag e %myand all is usually an indication of a lack of the requisitespecificity.

Blackmers position is undercu t by Plaintiffs offer to bear the time and expense associatedwith the docum ent review at issue. M ore importan t, Plaintiffs request i s isolated to a specificgroup of clearly identifiable documents, namely those technical ma nuals that address asbestos-containing components. The R ecomm endations use o f encompassing words such as all isappropriate since these phrases ., . elate to sp ecific subject matter and thus does not impede aready identification of the particular thing(s) to be produced. Mendelowitz, supra, at 304 (quotingIn re Citibank,N.A., 100 AD2d 784 [ ls t Dept 19841).

Black mer argues that production of its technical manua ls is ove rly intrusive and prejudicialbecau se they are proprietary information andlor contain trade secrets. But the facts do not supportthis claim. The only evidence submitted by Blackmer in this regard is W illiam Kennedystestimon y that the Blackm er manuals constitute active files. This internal classification does notnearly meet Blackmers burden to show that the man uals are actually proprietary. In New YorkState, when trade secrets are sought by an adverse party in litigation, the burden of establishing thatthe information sou ght is a trade secret lies with the disclosure objectant. I f that burden is met, theparty seeking disclosure must sh ow that the inform ation appears to be indispensable and cannot beacquired in any other way. Mann v CooperTire Co., 3 AD3d 2 4 , 3 0 - 31 (1st Dept 2006); se e alsoRooney v Hunter, 26 AD2d 891 (4thDept 1966) (attorney affirmation that the contents of a product

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is a trade secret is insufficient to establish such fac t).Blackmer has already disclosed certain technical manuals in th e Levy case pursuant to

Plaintiffs standard discovery requests, While the disclosure in Levy was limited in scope, it isinconsistent with Blackmers claim h erein that all of its manuals contain trade secrets. Moreover, asPlaintiffs point out, and apart fiomLevy, these manuals are designed to be disseminated tocustomers.

CONCLUSIONThe court has considered Black mers remainin g contentions and finds them to be without

merit. Accordingly, and in light of the foregoing, it is herebyORDERED that Blackmers application for a protective order i s denied in its entirety; and it

is furtherORDERED that the Special Masters May 8,2013 Recommendation is confirmed.This co nstitutes the decision and order of the court.

DATED: b.[7-1> SHERRY KLEIN HEITLERJ.S.C.

COUNTY CLERKS OFFICENEW YORK

It is worth noting that Blacknier neither sought a confidentiality agreement with respectthereto, nor identified those manuals as confidential, nor indicated that they containedconfidential information.

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ny order re pump technical manuals ASB-1307-03.pdf

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