In a fiercely contested asbestos case, the Rhode Island Superior Court has issued its third decision on the question of whether the sole remaining defendant can discover claims forms that plaintiff submitted to various bankruptcy trusts. After an in camera review of the forms, the court has reconsidered its original decision that the forms were not discoverable and permitted discovery of them. However, the Court specifically reserved a decision as to whether the forms were admissible at trial.
This is, by my count, at least the thirteenth written decision in this case, all of which address a variety of issues. The Court issued its original decision on this issue in July 2013 and then ordered the in camera review of the claims forms in November 2013. The case is presently scheduled for trial in two weeks.
The Court rejected plaintiff’s various arguments that the documents were not discoverable. It held the claims forms are not work product because they were not prepared in anticipation of litigation. Rather, they were prepared for submission for expedited review in an administrative claims process that is intended to avoid litigation. In addition, having reviewed the forms, the Court concluded that they do not include the opinions and mental impressions of plaintiff’s counsel. To the contrary, the forms contain only objective facts concerning plaintiff’s exposure to asbestos products which plaintiff’s counsel transcribed into the forms.
The Court rejected plaintiff’s argument that the forms were not discoverable because they were submitted to the trusts pursuant to confidentiality agreements between plaintiff and the trusts. The Court said the forms it reviewed did not refer to any confidentiality agreement. Moreover, even if a private confidentiality agreement applied to the forms, it did not protect them from discovery. Only an evidentiary privilege would do so and there was no case law in Rhode Island or elsewhere that applies an evidentiary privilege to documents that parties have privately agreed will be confidential.
The Court accepted defendant’s arguments that the forms were discoverable because they might be used to impeach plaintiff’s testimony with respect to alleged asbestos exposure. In this respect, it relied on a recent decision, In re Garlock Sealing Techs., LLC, No. 10-31067 (Bankr.W.D.N.C. Jan. 10, 2014), in which that court found that plaintiffs in other cases have made different statements about their asbestos exposure in their bankruptcy claims forms than they made in their deposition and trial testimony in civil lawsuits.
The Court continued to express some doubt that forms would be admissible at trial. The Court said the remaining defendant’s liability would depend on whether plaintiff establishes frequent, regular proximity to defendant’s products, not whether plaintiff was also exposed to other manufacturer’s products.
Sweredoski v. Alfa Laval, Inc., No. P.C. 2011-1544, slip decision (R.I. Superior Jan. 30, 2014)
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