December Tobacco Meet & Confer Letter

December 3, 1998

Hon. Alfred Chiantelli

San Francisco Superior Court

400 McAllister St., Room 505

San Francisco, CA 94102

Re: In Re Complex Asbestos/Tobacco Litigation Results of Meet & Confer on Defendants' Discovery to Plaintiffs

Dear Judge Pollak and Judge Chiantelli:

This is in response to Cheryl White's letter of this same date, addressing the same subject matter. Ms. White's letter is inaccurate in many respects, and misrepresents the conversation which occurred between the two of us yesterday afternoon.

First, it was Plaintiffs' failure to respond in a timely fashion to Defendants' proposed standard discovery requests which has made it impossible for the parties to accomplish any meaningful meet and confer efforts prior to the hearing scheduled for tomorrow. Ms. White called me at approximately 4:00 p.m. yesterday, a scant 40 hours prior to the scheduled hearing. Contrary to her assertion, I did not inform her that I "had no authority" to speak on behalf of the cigarette defendants. Instead, I explained to Ms. White that my intention was to take careful notes of all the comments she had regarding Defendants' proposed standard discovery requests, and then to subsequently initiate a discussion amongst all the cigarette defendants' attorneys regarding the merits (or lack thereof) of Plaintiffs' comments and suggested changes. I informed Ms. White that I was not in any position to either agree or disagree with any of her proposed changes until such time as I had conferred with representatives of the other cigarette defendants, who would ultimately be bound by any agreements I might make with her. Ms. White purported to understand the need for

me to communicate with the other cigarette defendants regarding her proposed changes, so I was quite shocked and disappointed to see that her letter to the Court misrepresented the entire tenor of what I told her. As a result, all of her assertions that I "refused to remove" certain language, that I "refused to consider alternative language," that I "refused to consider" her proposed amendments, and that I "refused to withdraw" certain requests are not only incorrect, but I believe were understood by Ms. White to be incorrect at the time she made those comments to the Court.

In addition, Ms. White has failed to inform the Court that, in connection with many of the specific issues discussed in her letter, I asked her to propose alternative language, or to propose definitions for certain terms, in instances where she felt that would be necessary or appropriate. In every such instance, Ms. White was unable to propose any such alternative language (which corroborated my impression that Plaintiffs had made no serious effort to analyze Defendants' proposed standard discovery).

In light of the misleading tenor of Ms. White's letter, I feel compelled to respond to at least a few of the misrepresentations she has made to the Court regarding specific proposed interrogatories and document requests. For example, with respect to Interrogatory Nos. 3 and 4, it is not true that I was unable to define what was meant by "health hazard." Instead, I informed Ms. White that, in my opinion, "health hazard" was a clear and easily understandable term. With respect to Interrogatory No. 7, it is absolutely untrue that I "admitted that the cigarette defendants wanted to know which Plaintiffs were receiving welfare and other public benefits . . . ." With respect to Interrogatory No. 14, it is untrue that I expressed any inability to define what was meant by "use of tobacco products" or "have knowledge." Again, my comment was that such terms were clear and unambiguous. The same is true with respect to Interrogatory No. 15, as regards the definition of "attempt to quit using tobacco products." With regard to Document Request No. 4, it is absolutely untrue that I explained the rationale for that request by stating, "How else can we find out your trial strategy unless we have everything the Plaintiff looked at and which of our documents you are going to use against us?"

It has been my experience, and the experience of others at this office, that attempts to meet and confer with Ms. White have been unproductive because of her penchant for being argumentative and for subsequently misstating our comments. (On the other hand, meet and confer sessions with Plaintiffs' primary counsel, Madelyn Chaber, have been productive on a number of occasions.) In the future, I propose that meet and confer sessions involving Ms. White be done by exchange of letters only, so that there will be no dispute as to what was said by any participant to the conversation.

We have forwarded a copy of this letter to Joanne Rosendin, so that she will be able to post it on the Web page for other parties to review. Thank you for your consideration of these matters.

Respectfully submitted

SHOOK, HARDY & BACON L.L.P.

Richard Shively

Coordinating Tobacco Defense Counsel

RS:mm

cc: Francine Curtis, Esq.

William S. Ohlemeyer, Esq.

Cheryl L. White, Esq.

Carolyn Collins, Esq.

Joanne Rosendin, Esq.

Robert Ryan, Esq.

Lisa Oberg, Esq.

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