Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Document Page 1 of 10
FILED & JUDGMENT ENTERED
Steven T. Salata
July 2 2018
In re:
RECITALS
A. In connection with a joint effort by Bestwall LLC, the debtor in this chapter 11
case (the “Debtor”), the Official Committee of Asbestos Claimants (the “ACC”), and the Future
Claimants’ Representative (the “FCR” and, together with the Debtor and the ACC, the
“Parties”) to explore an early consensual resolution of this proceeding, the Debtor has
the ACC, to both the ACC and the FCR. The Debtor also has made additional information
1
The last four digits of the Debtor’s taxpayer identification number are 5815. The Debtor’s address is
100 Peachtree Street, N.W., Atlanta, Georgia 30303.
Case 17-31795 Doc 436 Filed 07/02/18 Entered 07/02/18 14:10:57 Desc Main
Document Page 2 of 10
available to the ACC and the FCR through a shared data room. All such material designated as
confidential has been provided subject to the terms of the Agreed Protective Order Governing
B. Among the documents that the ACC requested are historic records reflecting sales
of asbestos-containing products. The paper production of these historic sales records would
C. Before the Debtor commenced this chapter 11 case, the Debtor’s predecessor in
interest began developing a database for its own use in the defense of pending and anticipated
litigation, which database includes electronic images of the documents contained in the Paper
Records along with certain descriptive coding. Although the database is still undergoing review
for quality and completeness, it is a functional tool for searching and reviewing imaged sales
records.
D. The Debtor has advised each of the ACC and the FCR that it has assembled
the Paper Records in Atlanta, Georgia. Nevertheless, the Debtor, the ACC, and the FCR have
agreed that, at this time, instead of providing access to the Paper Records, it is more efficient and
cost-effective for the Debtor to create a second copy of the electronic images of the sales records
and related descriptive information maintained within the database (such copy, as it may be
updated or supplemented, the “Sales Records Database”) and provide access thereto, subject to
the terms of this Agreed Order, solely to the following professionals for the ACC and the FCR:
(1) Montgomery, McCracken, Walker & Rhoads, LLP and Legal Analysis Systems, Inc. for the
ACC; (2) Young Conaway Stargatt & Taylor, LLP, and Ankura Consulting Group, LLC for
the FCR; and (3) FTI Consulting, Inc. for both the ACC and the FCR; and (4) any other
professionals retained by the ACC and/or the FCR by Bankruptcy Court order in this chapter 11
2
Case 17-31795 Doc 436 Filed 07/02/18 Entered 07/02/18 14:10:57 Desc Main
Document Page 3 of 10
case to whom the Debtor has agreed in writing to permit access (all four categories collectively,
the “Professionals”). In addition, the Sales Records Database may be made available to any
experts retained by the Professionals, provided that those experts (1) are not counsel representing
litigants in asbestos litigation in the tort system; and (2) agree to be bound by the terms of this
Agreed Order by executing an acknowledgement in the form attached hereto as Exhibit A (any
E. In exchange for the Debtor providing the Professionals and the Experts
(collectively, the “Professional Parties”) with access to the Sales Records Database, the ACC,
the FCR, and their respective Professional Parties agree that (1) access to the Sales Records
Database will be limited to the Professional Parties and (2) the Professional Parties will use the
Sales Records Database and the information obtained solely from the Sales Records Database
only in this Bankruptcy Proceeding (as defined below) and will not disclose any of the foregoing
outside the Bankruptcy Proceeding, it being understood that access is provided to the
Professional Parties solely for the purpose of carrying out the respective duties of the ACC and
the FCR in connection with the above-captioned chapter 11 case of the Debtor pending in the
above-captioned court (the “Bankruptcy Court”) or any portion of such case that is withdrawn
to the district court for this district (the “District Court”) or transferred to another bankruptcy or
district court (the “Chapter 11 Case”), as well as in any related adversary proceedings in the
Chapter 11 Case, whether pending in the Bankruptcy Court or the District Court or another
bankruptcy or district court, and in any proceedings in any courts in which appeals or other
applications for review of orders or judgments of such bankruptcy and district courts may be
made (together with the Chapter 11 Case, the “Bankruptcy Proceeding”). The Professional
Parties further agree that they will not replicate or attempt to replicate the Sales Records
3
Case 17-31795 Doc 436 Filed 07/02/18 Entered 07/02/18 14:10:57 Desc Main
Document Page 4 of 10
Database. For avoidance of doubt, the restriction on replication of the Sales Records Database
will not in any manner limit or restrict the ACC or the FCR from using or filing in the
Bankruptcy Proceeding individual sales records from the Sales Records Database or restrict the
Professional Parties from preparing summaries, memoranda, or other compendia or work product
based on the information contained in the Sales Records Database (individually and collectively,
the “Work Product”) and sharing that Work Product with the FCR and/or the members of the
ACC or counsel representing those members on the ACC or in the Chapter 11 Case (such
F. The ACC, the FCR, and their Professional Parties also agree that, to the extent
the Sales Records Database is protected from disclosure as attorney work product, any such
protection is not waived by disclosure connected with the Bankruptcy Proceeding, nor will
the disclosure of the Sales Records Database operate as a waiver of any privilege or protection in
this or any other federal or state proceeding as to the Sales Records Database or the Paper
Records. Nothing contained herein constitutes agreement by the ACC or the FCR that the Sales
Records Database or the Paper Records are entitled to work-product or any other privilege or
protection, and the respective rights of the Parties on this issue are fully reserved.
ORDERED THAT:
1. Only the Professional Parties shall have access to the Sales Records Database, and
the Professional Parties, except as set forth herein, shall not share, or permit any other person to
gain, access thereto. The ACC, its members or their Representatives, the FCR, and their
respective advisors (including the Professionals and the Experts) will use the Sales Records
Database, and the information obtained solely from the Sales Records Database pursuant to
4
Case 17-31795 Doc 436 Filed 07/02/18 Entered 07/02/18 14:10:57 Desc Main
Document Page 5 of 10
the terms hereof and only for the purpose of carrying out the duties of the ACC and the FCR
pursuant to the Bankruptcy Code in connection with the Bankruptcy Proceeding, and shall not
disclose that information for use outside of this Bankruptcy Proceeding. The Professional Parties
shall not replicate or attempt to replicate the Sales Records Database, provided that this
restriction shall not in any manner limit or restrict the ACC or the FCR from using or filing
individual sales records in the Bankruptcy Proceeding or restrict the Professional Parties from
preparing Work Product and sharing that Work Product with the FCR and/or the members of
the ACC or their Representatives for use only in the Bankruptcy Proceeding. For avoidance of
doubt and without limiting any of the terms hereof, individual records drawn from the Sales
Records Database can be filed or disclosed in the Bankruptcy Proceeding without the restrictions
(a) the later of either the effective date of a plan of reorganization in the Chapter 11 Case, or
the exhaustion of all appeals, if any, of the order confirming the plan; or (b) the entry of an order
dismissing the Chapter 11 Case, access to the Sales Records Database by the Professional Parties
shall be extinguished, and within 90 days thereafter the ACC, its members, the FCR, and their
respective advisors (including the Professionals and the Experts) shall destroy or cause to be
destroyed all artifacts, printouts, summaries, or copies of information generated from the Sales
Records Database, without retention of any electronic or paper copy thereof, except that (i) the
Professional Parties may retain for their respective records their work product and copies of court
filings, deposition transcripts, or recordings, as well as any exhibits used therein, expert reports,
and exhibits introduced at any hearing; (ii) emails concerning the sales records contained in
the Sales Records Database may be retained and not destroyed; and (iii) incidental copies of
5
Case 17-31795 Doc 436 Filed 07/02/18 Entered 07/02/18 14:10:57 Desc Main
Document Page 6 of 10
individual sales records from the Sales Records Database that are in the Professional Parties’
files need not be identified and destroyed if doing so would be unduly burdensome (it being
understood and agreed that the Professional Parties will copy or print sales records as necessary
for their work in connection with this Bankruptcy Proceeding and will not copy or print sales
records from the Sales Records Database for the purpose of collecting, maintaining, or archiving
them). Further, consistent with item (iii) in the prior sentence, any individual sales records that
systems or servers, or as may be required for regulatory recordkeeping purposes, may also be
maintained in that manner. Any material from the Sales Records Database retained pursuant to
this paragraph, including any Work Product, that is not otherwise publicly available shall remain
subject to the terms of this Agreed Order and shall not be used or made available for use outside
3. Pursuant to Federal Rule of Evidence 502(d), to the full extent the Sales Records
Database may be protected from disclosure as attorney work product, any such protection is not
waived by disclosure connected with the Bankruptcy Proceeding, nor will the disclosure of
the Sales Records Database operate as a waiver of any privilege or protection in this or any other
federal or state proceeding as to the Sales Records Database or the Paper Records. For
the avoidance of doubt and without limiting the foregoing, the ACC, its members and their
Representatives, the FCR, and the advisors to the foregoing (including the Professionals and
the Experts) shall not argue in any proceeding or forum that the Professional Parties’ access to
the Sales Records Database permitted hereunder shall in any manner (a) be deemed to be a
waiver of, or diminish, any privileges or protections of the Debtor as to the Sales Records
Database or the Paper Records; or (b) be used as a basis to seek discovery of, or access to,
6
Case 17-31795 Doc 436 Filed 07/02/18 Entered 07/02/18 14:10:57 Desc Main
Document Page 7 of 10
the Sales Records Database outside of the Bankruptcy Proceeding. Similarly, the Debtor shall
not argue in any proceeding or forum that the decision of the ACC and the FCR to enter into this
Agreed Order: (i) created any privileges or protections in favor of the Debtor that it did not
already have as to the Sales Records Database or the Paper Records; or (ii) waived any argument
by the ACC or the FCR that the Sales Records Database or the Paper Records lack any attorney
4. Nothing herein shall modify or limit the terms of the Protective Order, which shall
continue to govern the production and use of Covered Material (as defined therein).
5. Although the Debtor is not providing access to the Paper Records at this time,
the ACC and the FCR reserve the right to seek production of the Paper Records. The Debtor
reserves and retains the right to seek appropriate protections for and restrictions on use of
the Paper Records, including measures that would protect the Paper Records to the same degree
as the Sales Records Database, as a condition of providing any such access. The ACC and
the FCR retain their rights to oppose any requested protections for and restrictions on use of
the Paper Records on the basis that they are not privileged or confidential or on any other basis,
6. This Court shall retain jurisdiction to hear and determine all matters arising from
7
Case 17-31795 Doc 436 Filed 07/02/18 Entered 07/02/18 14:10:57 Desc Main
Document Page 8 of 10
8
Case 17-31795 Doc 436 Filed 07/02/18 Entered 07/02/18 14:10:57 Desc Main
Document Page 9 of 10
-and-
This Order has been signed electronically. The judge’s United States Bankruptcy Court
signature and court’s seal appear at the top of the Order.
1503877086
9
Case 17-31795 Doc 436 Filed 07/02/18 Entered 07/02/18 14:10:57 Desc Main
Document Page 10 of 10
In re:
ACKNOWLEDGEMENT
I, ____________________, hereby understand and agree that access to the Sales Records
Database, as such term is defined in the Agreed Order Establishing Non-Waiver and Other
Conditions for Access to and Use of the Debtor’s Electronic Sales Records Database (the “Agreed
Order”) entered by the Bankruptcy Court in the above-captioned matter, may only be provided to me
subject to the terms and conditions set forth in the Agreed Order. Capitalized terms not otherwise
defined herein have the meanings given to them in the Agreed Order.
I hereby acknowledge that I have been given a copy of and have read and understand the
Agreed Order. I agree that I will use the Sales Records Database and the information contained
therein that is not otherwise publicly available solely on the terms of the Agreed Order and only for
the purpose of carrying out the duties of the ACC or the FCR pursuant to the Bankruptcy Code in
I further agree to be bound by the terms of the Agreed Order and to subject myself to the
jurisdiction of the Bankruptcy Court for the enforcement of the Agreed Order and understand that, in
the event that I fail to abide by the terms of the Agreed Order, I may be subject to sanctions by
Date: Signature: