UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION


In Re:

GARLOCK SEALING TECHNOLOGIES
LLC, et al.,

Debtors.

)
) Chapter 11
)
) Case No. 10-31607
)
)
) Jointly Administered
)



CERTAIN LAW FIRMS OBJECTION TO DEBTORS MOTION TO
REMOVE CONFIDENTIALITY DESIGNATIONS FROM
CERTAIN EVIDENCE FOR PURPOSES OF TRIAL


The law firms of Belluck & Fox, LLP; Shein Law Center, Ltd.; Simon Greenstone
Panatier Bartlett, PC; and Waters & Kraus, LLP, along with Mark Iola of Stanley Iola, LLP
(collectively, the Law Firms) file their Objection to the Motion of Debtors to Remove
Confidentiality Designations from Certain Evidence for Purposes of Trial (the Motion,
Dkt. No. 2979) and respectfully state as follows:
BACKGROUND
1. On March 22, 2011, this Court entered the Stipulated Protective Order at the
joint request of the parties to the Estimation Trial, including Debtors. See Docket No. 1225
(the Stipulated Order). This order guarantees the protection of designated Confidential
Information Stipulated Order at 1(g).
1
The Stipulated Order allows a recipient of
discovery thought to have been wrongly designated as confidential to raise its dispute

1
On December 20, 2012, the Stipulated Order was amended by the Amendment to
Stipulated Protective Order (Docket No. 2704) which makes it clear that third party targets
of discovery such as the Law Firms can avail themselves of the Stipulated Order.
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promptly; requires negotiat[ions] in good faith before a resolution is sought from the
Court; and mandates written notification of an impasse upon the unsuccessful conclusion
of negotiations. Stipulated Order at 5.
2. On November 6, 2012as part of discovery in their estimation trial
Debtors served subpoenas duces tecum
2
on the Law Firms (the Subpoenas).
3
Although
willing to be deposed subject to the protection of the Stipulated Order, the Law Firms
considered the document requests overbroad, irrelevant to estimation, and unreasonably
burdensome. Further, many of the documents sought (especially trust claim forms, Rule
2019 statements, and ballots) were of a highly confidential nature.
3. The Law Firms joined in the Asbestos Claimants Committees (ACC)
motion for a protective order.
4
This Courtreceptive to the Law Firms and ACCs
arguments but swayed by Debtors insistence that they needed the discovery for
estimationgranted some of the production sought, with significant restrictions.
5


2
Mark Iola was served a subpoena seeking his deposition only.
3
The Subpoenas sought a deposition from each firm on a range of topics surrounding the
Law Firms representation of clients with mesothelioma (including settlement practices and
trust claims filing practices) and a large amount of documents (including trust claim forms,
ballots, 2019 statements and exposure evidence).
4
See Motion of the Official Committee of Asbestos Personal Injury Claimants for a
Protective Order with Respect to Document Demands Included in Garlocks Subpoenas
Duces Tecum to Five Law Firms (Docket No. 2623) and the Joinder in, and Additional
Argument With Respect to the Motion filed by Certain Law Firms (Docket No. 2627)
(ACC Protective Order Motion). Mark Iola was not subject to a subpoena duces tecum and
therefore did not join in this litigation.
5
See Order Denying in Part and Granting in Part Motion by Official Committee of Asbestos
Personal Injury Claimants for Protective Order with Respect to Document Demands
Included in Garlock's Subpoenas Duces Tecum to Five Law Firms, Certain Firms' Joinders
in Committee's Motion, and Motion to Quash and for Protective Order of Troy D. Chandler
and Williams Kherkher Hart Boundas LLP (Docket No. 2686).
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4. Over the next month and a half, the Law Firms produced documents sought
by the Subpoenas and gave depositions.
6
At all times, the Law Firms believed that the
documents produced, the deposition testimony and various exhibits were subject to the
Stipulated Order and would be maintained as confidentially designated material (the
Confidential Information). Debtors counsel unequivocally announced the parties
agreement to designate the deposition and exhibits confidential at the start of the Belluck
deposition on December 14, 2012 (thus waiving any later argument that the deposition was
not confidential). At each subsequent deposition, the Law Firms counsel designated the
depositions as confidential consistent with prior practice,
7
receiving Debtors counsels
assent to such designation.
8

5. On March 1, 2013, some eleven weeks after the first deposition and six
weeks after the last, Debtors sent a letter purporting to dispute the confidentiality of the
Confidential Information and announced their intention to seek to use the depositions and
the documents produced in discovery publicly. In such regard, Debtors invited the Law

6
The deposition of Joseph Belluck of Belluck & Fox took place on December 14, 2102, the
deposition of Jeffrey Simon of Simon Greenstone Panatier & Bartlett took place on January
4, 2013 (and was continued on March 26, 2013), the deposition of Peter Kraus of Waters &
Kraus took place on January 14, 2013, the deposition of Mark Iola took place on January 15,
2013 and the deposition of Benjamin Shein of the Shein Law Center took place on January
16, 2013. In each case, the documents sought by the subpoena were produced in advance of
the depositions.
7
As the documents requested by the subpoena were produced for the depositions and
immediately before the depositions, the Law Firms believe that the documents are covered
under the confidentiality designation made at each deposition.
8
As the depositions are Confidential Information protected by the Stipulated Order, the
Law Firms do not wish to put such protected status in jeopardy by quoting verbatim from
the deposition transcripts. If the Court would find it helpful to see the specific language used
by counsel, the Law Firms would be more than willing to provide a copy of the transcripts
for in camera review.
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Firms to suggest portions of the Confidential Information they might wish to remain
confidential. Counsel for the Law Firms responded promptly and initiated a review of the
depositions and materials to see if any of the Confidential Information were suitable for
public dissemination.
6. As the Law Firms completed their reviews, they responded to Debtors
dispute, noting their belief that their depositions and documents would be treated as
confidential. In Joe Bellucks case, Debtors counsel had actually announced that the parties
had agreed to such a confidential designation.
9
The Law Firms, however, offered to
withdraw the designation of confidentiality for any materials they had been able to establish
were suitable for public use while maintaining that continued confidentiality as to the rest
was essential.
10

7. On June 5, without a meet-and-confer having taken place, Debtors counsel
sent out an email purporting to be a written notice of impasse and announcing Debtors
intent to file a motion with the Court. Counsel for the Law Firms responded that such a
notice was premature prior to a meet-and-confer, which was arranged for June 12. At that
conference, the Law Firms counsel made clear that the Law Firms were willing to consider a
reasonable compromise proposal. Debtors counsel ended the call by withdrawing the notice
of impasse and suggesting that Debtors would contact counsel about such a proposal.

9
Accordingly, Belluck & Fox has declined to consider lifting confidentiality with respect to
any of the deposition, given Debtors Counsels unequivocal announcement of the parties
agreement that the deposition was designated as confidential.
10
The Law Firms made an initial response on March 11, 2013. On March 20, 2013, Belluck
& Fox responded in full. On April 25, 2013 Waters & Kraus and Mark Iola responded in
full. On May 2, 2013, the Shein Law Center responded in full. On May 9, 2013, Simon
Greenstone responded in full.
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8. On July 3, without further communication and without a further notice of
impasse, Debtors filed the Motion.
11
On Sunday, July 14, over a month after the conference
call, only a week before the hearing and a few days before the Law Firms had to respond to
the Motion, Debtors counsel belatedly sent an email stating that it intended to use over
1500 extracts from the depositions at the trial and inviting the Law Firms to comment on
whether each extract should remain confidential and the basis for confidentiality.
12
A further
meet and confer on July 16, 2013 did not result in any further clarity from Debtors or a
consensual resolution.
ARGUMENT
1 Debtors collaterally attack the Stipulated Order and ignore procedural
protections therein and in orders of two United States District Courts and this
Court specifically protecting Rule 2019 information from public disclosure.
9. The Motion purportedly seeks to remove confidentiality designations from
certain evidence that law firms have designated as confidential under the Stipulated Order.
13

According to the Motion, the Debtors wish to remove the designation of confidentiality
from the following evidence:
a. Documents produced by law firms pursuant to subpoena relating to
seventeen Designated Plaintiffs, consisting of documents pertaining to the
plaintiffs asbestos exposures produced during tort cases and Trust claims,
ballots, and Rule 2019 statements filed for these plaintiffs;

11
Although the Motion is not specific about which law firms it wishes this Court to remove
confidentiality designations in respect of, it mentions the Law Firms by name in the Relief
Requested section at pages 7-8.
12
Debtors counsel also incorrectly stated that the Debtor did not believe that any of the
documents had been designated confidential, despite the prior letters and the Debtors own
acknowledgement in the Motion that the documents were at issue.
13
Motion at p. 1.
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b. Testimony from six law firms provided under subpoena about the
exposures identified to Garlock during the tort case; Trust claims, ballots,
and 2019 statements filed for these plaintiffs; exposures underlying those
Trust claims, ballots, and 2019 statements; and law firms practices with
respect to exposure evidence, Trust claims, ballots, and 2019 statements;
c. The report of Professor Lester Brickman, which Debtors have designated
confidential solely because it references in part the above evidence that has
been designated confidential.
Motion at 2. Debtors are careful not to say the Law Firms designations of that certain
evidence were improper under the Stipulated Order to which Debtors assented more than
two years ago. At best, Debtors have changed their minds since signing off on the Stipulated
Order and now wish to present publicly matters that the Law Firms have designated as
confidential.
14
Perhaps more plausibly, however, Debtors agreement to the Stipulated Order
may have been a cynical means to a dubious end: gain access to Confidential Information
first, then press to make it public.
10. As noted, the Stipulated Order defines what is meant by Confidential
Information. It mean Discovery Material (i) produced by a Producing Partysuch as the
Law Firmsor previously been produced pursuant to an existing confidentiality agreement;
designated as Confidential Information by the Producing Party, and (iii)
believed in good faith by the Producing Party to contain information that
has not been made public and which the Producing Party would not make
public in the ordinary course of its activities, including, without limitation
information regarding individual asbestos claimants.
15

Nowhere in the Motion do Debtors allege that the Law Firms confidentiality
designations were improper or inconsistent with the terms of the Stipulated Order. Indeed, it
is hardly uncommon for any law firm to maintain as confidential matters bearing on the

14
Id. at 2.
15
Stipulated Order, 3(g).
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settlements of its clients claimsmatters that have neither been made public nor would be
made public in the ordinary course of the Law Firms practices.
16
But these Debtors are no
longer content with the parameters to which they stipulated in March 2011 and want to strip
away the confidentiality to which they previously agreed and which played a pivotal role in
motivating the Law Firms to make the Confidential Information available to Debtors for the
limited purpose of the forthcoming estimation trial.
17

11. Baiting-and-switching implicates black-letter principles of estoppel. The
central notion underlying estoppel is an intention that ones conduct will be acted upon by
another to his detriment.
18
Debtors, by way of their stipulated confidentiality undertakings,
assuredly intended to coax the Law Firms into producing documents and testifying at
depositions, which the Law Firms subsequently did. Debtors are consequently estopped
from contesting those undertakings to which they long ago agreed.

16
The same reasoning applies to the internal processes by which law firms might evaluate
claims for filing with asbestos trusts, participate in bankruptcy cases on behalf of clients, and
other matters covered by the Confidential Information.
17
Debtors raise a whole host of potential authority that might bolster their ability to do with
the information as they wish, from Section 107 of the Bankruptcy Code to the First
Amendment. None of this is relevant to the questions before this Court, which is whether
the Law Firms correctly invoked the terms of the Stipulated Order and whether Garlock has
raised a valid dispute thereto. Debtors voluntarily entered into the Stipulated Order and
limited their rights to use designated information publicly. It has also sought the protection
of the Stipulated Order many times for its own confidential information. That having been
said, the substance of Debtors arguments is also suspect. For example, Section 107(b) of the
Bankruptcy Code provides the ability for a court to protect from public disclosure a trade
secret or confidential research, development or commercial information. 11 U.S.C.
107(b). The internal procedures and practices of counsel for personal injury claimants in
the preparation and prosecution of tort actions fall squarely within the realm of a trade
secrets and/or confidential commercial information.
18
See, e.g., Gladden v. Pargas, Inc., 575 F.2d 1091, 1094 (4th Cir. 1977).
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12. Indeed, it is unseemly for a litigant to collaterally attack a stipulated order to
which it has already agreed:
French's arguments constitute an impermissible collateral attack on the
Court's valid and binding order. French surrendered his right to argue over
the initial validity of Santa Fe Properties' registered trademarks and service
marks in this case when they agreed to the terms of the Stipulated Order.
French does not get a second bite at the apple.
19

13. Debtors indifference to the Stipulated Order even extends to its provision
addressing disputes over confidentiality. Section 5 sets forth what the Debtors needed to do
if they really disputed the Law Firms designations of Discovery Material as Confidential
Information (as opposed to just getting a case of buyers remorse over what they stipulated
to in 2011). First and foremost, Debtors needed to act promptly, which they have not.
Instead of giving the Law Firms prompt written notice of the dispute
20
as required, they
dawdled silently for weekseven months. Some of the confidentiality designations Debtors
are challenging by the Motion were made in December 2012; most were made in January
2013. Yet Debtors did not reveal any disputes over the Law Firms designations until March
1. The shortest period of time taken by Debtors to dispute the designation of the
Confidential Information is 6 weeks, and the longest almost 3 months.

19
See, e.g., Santa Fe Properties, Inc. v. French & Fine Properties, Inc., No. CIV 04-0518JB/DJA,
2005 WL 2313680 (D.N.M. Aug. 5, 2005); In re Wharry, 91 B.R. 31, 34 (Bankr. N.D. Ohio
1988) (Because the necessary facts are undisputed, an evidentiary hearing is not necessary
and the court finds that Toledo Trust is bound by its stipulation and may not collaterally
attack these stipulated facts.); cf. In re Met-L-Wood Corp., 861 F.2d 1012, 1018 (7
th
Cir. 1988)
(Gekas's suit does not seek to rescind the sale [pursuant to 11 U.S.C. 363(f)]. But by
seeking heavy damages from the seller, the purchaser, the purchaser's purchaser (Pipin), a
law firm involved in the transaction, and the secured creditors that benefited from the sale,
the suit is a thinly disguised collateral attack on the judgment confirming the sale.).
20
Stipulated Order, 5.
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14. Additionally, Debtors have been notably lax about negotiating with the Law
Firms in good faith in an attempt to resolve their belatedly revealed dispute. Instead of
making an effort to identify specific materials as to which they wanted confidentiality to be
liftedwhere the matter was left when Debtors last conferred with the Law Firms
Debtors just went ahead and filed their Motion. And they did not, it should be noted, send
the Law Firms a written notice of the impasse as required under 5 of the Stipulated
Order.
21

15. Debtors impasse, it must be remembered, is their change of mind and
dissatisfaction with the confidentiality undertakings to which they long ago agreed.
Disposition of the Motion will not impact in any way Debtors ability to present their
estimation case at trial. The Motion has everything to do with Debtors zeal for the limelight,
for press conferences, and for relentlessly petitioning Congress unfettered by the
confidentiality restrictions to which they freely submitted.
16. That Debtors want confidentiality lifted from the Rule 2019 Statements of
certain Designated Plaintiffs speaks eloquently to the Motions lack of merit. The
confidentiality of that certain evidence has been thoroughly adjudicated in numerous
forums and conclusively resolved in a manner not entirely to Debtors liking. The Court will
recall that two United States Districts Courts issued orders concerning Debtors access to

21
As noted, Debtors did send an email on June 5, purporting to be a notice of impasse
under the Stipulated Order (having notat that pointmet and conferred with counsel for
the Law Firms at all). Debtors withdrew that notice on a conference call on June 12. Thus,
the Debtors did not send the notice of impasse required under the Stipulated Order. Should
the Debtors attempt to contend that the June 5 notice was not withdrawn, then they are still
in breach of the Stipulated Order, which states that a party seeking to dispute the
confidential status of Confidential Information shall have 5 business days from the delivery
of such a notice to file a motion seeking an order from the Court resolving the dispute.
Almost a month passed between the purported notice and the filing of the Motion.
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and use of 2019 Statements embodying confidential information submitted in 12 bankruptcy
cases, most now closed, before bankruptcy courts in Delaware and Pittsburgh. Specifically,
both orders provided:
This Order authorizes Garlock to use such 2019 Exhibits solely in
connection with the estimation proceedings in Garlocks chapter 11 cases
pending in the North Carolina Bankruptcy Court, and neither the 2019
Exhibits nor the information contained therein may be used for any other
purpose.
22

17. If that were not enough, this Court subsequently entered its Order
Governing Use and Confidentiality of Certain Exhibits from Other Bankruptcy Cases on
March 26, 2013. It provided:
2019 Exhibits are confidential and shall be treated as such without need of
any special designation. Any entity granted access to 2019 Exhibits as
provided in this order must maintain the confidentiality of the same in a
manner consistent with the obligations and restrictions imposed herein.
23

Further, consistent with the district courts directives, it provides: Neither 2019 Exhibits,
nor any analyses, conclusions, summaries, excerpts, redacted copies derived therefrom, nor
any knowledge obtained therefrom, shall be used for any purpose other than the Estimation
Proceeding.
24


22
In re Motions for Access of Garlock Sealing Technologies LLC, Civ. No. 11-1130-LPS, Dkt. No.
67 at 2 (D. Del., Mar. 14, 2013) and Garlock Sealing Technologies LLC v. Pittsburgh Corning
Corp., etc., Civ. No. 2:11-cv-01046-NBF, Dkt. No. 33 at 3 (W.D. Pa., Mar. 19, 2013).
23
Dkt. No. 2807 at 9.
24
Id. at 13. In addition to this Courts order on the heels of the district courts rulings, the
bankruptcy judge who had provided over the dozen reorganizations underlying the district
court proceedings also issued its Order Establishing the Protocol for Production of 2019
Exhibits to further ensure that the 2019 Exhibits Debtors are handled and subjected to
appropriately limited dissemination in light of the district courts rulings and in a manner
consistent with their confidential content. See In re W.R. Grace & Co., et al., etc., Case No. 01-
01139-KJC, Dkt. No. 30490 (Bankr. D. Del. & W.D. Pa., Apr. 9, 2013).
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18. That Debtors, in the face of all this, now casually move to abrogate
confidentiality as to these materials is breathtaking. The Motion is singularly indifferent to
the rulings of the various courts on the Rule 2019 issues, collaterally attacking them as well
as to Stipulated Order in a stunning display of hubris.
2 Debtors do not need to remove confidentiality designations to litigate the
estimation trial.
19. Debtors served the Subpoenas in furtherance of their preparations for the
estimation trial. In explaining to this Court why they opposed the ACC Protective Order
Motion, Debtors noted that:
Debtors served subpoenas for 30(b)(6) depositions on these five law firms to
obtain evidence necessary to support their defense to the Committees
settlements approach to aggregate estimation
Debtors Response to ACC Protective Order Motion at 5. See also, id. at 9 (the stakes of the
estimation trial easily warrant the modest burden production of the documents places on the
Law Firms).
20. Then, at the hearing on the ACC Protective Order Motion, Debtors argued
explicitly that they needed the documents to effectively take the depositions and to develop
the evidentiary record for estimation, stating that the documents:
are necessary for us to ensure that we can effectively examine these law firms
on, as Mr. Swett put it, the meaning of the claim form, the meaning of 2019
statements, the meaning of ballots they are necessary to ensure the full
development of an evidentiary record for estimation, so that you are
permitted to see our case
Transcript of hearing on December 6, 2013 at pages 91-92.
21. So, when this Court permitted Debtors to proceed with the document
discovery, it did so based upon Debtors representation that they needed the information for
its estimation case. The Court noted that it was only permitting the depositions and
document discovery because it appears to a relatively small number of people and I think
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the burden of retrieval should be not too much.: Id. at 101. The Court did, however,
caution that [i]f this is just a toe in the door, we will stop it later, but, for now, we will that
[sic] this go forward. Id.
22. With the filing of the Motion, Debtors cast aside any pretense that the
discovery was just about the estimation trial. They brazenly cite myriad purposes for which
they wish to use the Confidential Information:
champion the publics right to review evidence that supports Debtors position that
law firms have concealed exposure evidence from Debtors (See Motion at 11-12);
further its legislative agenda and provide the information obtained through its
discovery efforts to Congress and state legislatures for use when considering
legislation sponsored by Debtors and their cohorts (Id.);
assist litigants in other asbestos cases, and courts hearing those cases (Id.);
provide materials to The Wall Street Journal, Forbes and other publications with a
favorable ear for Debtors tales of woe (Id.);
provide information for financial stakeholders such as the shareholders of Debtors
ultimate corporate parent, the market for public securities, and non-asbestos
creditors in this case. (Id. at 13); and
rebut in public forums statements purportedly made by ACC counsel and a lawyer
for one of the Law Firms (Id. at 6 & 13).
25

23. Debtors end the Motion with a plaintive plea for this Court to be fair to a
host of putatively interested parties unconnected with this estimation trial, stating that

25
Perhaps the Law Firms should be relieved that Debtors stop there rather than suggesting,
as Debtors parent did in litigation over Debtors quest for ballots, that the Confidential
Information would make good wallpaper or a cheap replacement for packing peanuts. See
Response by Coltec, Inc. to Motion by Committee of Asbestos Personal Injury Claimants to
Deny the Debtors Access to Court Records (Docket No. 1950) at 5 (Even if the Debtors
had no purpose for the ballots other than to use them as wallpaper for their company dining
room or as packing material for shipping their products, they would still be entitled to ask
for them and to get them.).
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It would be fundamentally unfair for Congress, the public, state legislators,
state & federal courts, other asbestos defendants, stakeholders in Debtors
parent, and Debtors other creditors to have to rely on an inaccurate or one
sided public account of this important issue.
Id. at 15. To be able to achieve these ends, Debtors must have the Confidential Information
available for public disseminationsomething they already bargained away in the Stipulated
Order.
24. What Debtors may do with the Confidential Information is attempt to use it
for the purpose for which they claimed to need it: evidence at its estimation trial to assist this
Court with determining the aggregate amount of Debtors liability for mesothelioma claims
(although the ACC may object to some or all of this putative evidence). Debtors need no
ability to disseminate the documents publicly to attempt to present their estimation case
effectively. This Court will still have access to all the evidence Debtors wish to offer and the
Court considers germane if the Confidential Information is presented under the coverage of
the Stipulated Order. For Debtors to claim their ability to have a fair hearing is undercut by
the confidentiality protections to which they long ago agreed is insupportable.
25. Further, a lot of other evidence at the forthcoming estimation trial
including much evidence provided by the Debtorswill be presented subject to
confidentiality directives. In the lead up to the estimation trial, nary has a week gone by
without one party or another filing something under seal in this case (for example, on July 9
alone this Court entered five orders granting motions to file pleadings under seal), and if this
pattern is followed at the trial, a large portion of it will be closed to the public.
26. In any event, Debtors may not be able to use the Confidential Information
at the estimation trial pending this Courts disposition of the Motion and any subsequent
appeal due to additional protections provided by the Stipulated Order. The estimation trial is
due to commence on July 22, the day this Motion is set for hearing, and has a limited
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allocation of court time. The Stipulated Order provides that any information designated as
confidential and subject to a validly raised dispute shall be treated as Confidential
Information pending the Courts decision and any appeal therefrom.
26
Even if the Court
were to find that the Debtors had raised a valid dispute, the Law Firms would appeal to
protect the sensitive information and the confidentiality would be maintained during the
pendency of this appeal. That the Debtors are pressing the Motion despite there being zero
chance of a resolution of any appeals prior to the conclusion of the estimation trial starkly
illustrates their ulterior purpose of publicizing Confidential Information that has nothing to
do with the estimation of their mesothelioma liability.
27. Whatever Debtors hopes for the Confidential Information might be, they
cannot escape this simple fact: they sought the materials for use in their estimation trial and
can use those materials, for that purposewithout the slightest hindranceunder the
auspices of the Stipulated Order. This Court should not countenance stripping hugely
sensitive materials of such protectionprotection to which Debtors freely agreedat the
behest of parties who wish to use the materials for purposes outside the confines of this trial.
3 The Law Firms relied on the confidentiality provided by the Stipulated Order
when being deposed and were candid in a manner they would not have been
had they understood the depositions and documents to be in danger of being
released publicly.
28. Information that is not made public by the law firms in the ordinary course
of businessin the form of documents and deposition testimonywas provided to the
Debtors by the Law Firms in reliance that such information would be and would remain
designated as Confidential Information. Indeed, deposition testimony likely would not
have been provided without the Stipulated Order. Debtors counsel announced, at the start

26
Stipulated Order 5.
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of the Belluck deposition, that the parties had agreed to the confidentiality designation. At all
subsequent depositions by the Law Firms, counsel for the deponent referred to prior
practice and, again, invoke the Stipulated Order, with Debtors counsel acknowledging that
invocation.
29. It bears noting that federal courts are loathe to allow taking the deposition of
a partys attorney except in very limited circumstances in which no other means exist to
obtain the information and it is both relevant and crucial.
27
Courts in other jurisdictions,
including courts in the Fourth Circuit have applied that Shelton analysis and determined that
depositions of counsel were barred.
28

30. Because the Confidential Information was provided by the Law Firms to the
Debtors pursuant to a Stipulated Order, under which the Debtors agreed to maintain the
confidentiality of the information provided, the Debtors were not required to show that the
limited circumstances required by most federal courts were present in this case.
31. Additionally, some information was disclosed by the Law Firms pursuant to
the Stipulated Order that would otherwise have been protected from discovery. For

27
See Shelton v. Amer. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1987), the Eighth Circuit
found that depositions of opposing counsel should be limited to where the party seeking to
take the depositions shows that (1) no other means exist to obtain the information that to
depose opposing counsel, . . . ; (2) the information sought is relevant and nonprivileged; and
(3) the information is crucial to the preparation of the case.
28
See, e.g., Asbury v. Litton Loan Servicing, LP, No. 3:07-500, 2009 WL 973095, *3 (S.D. W. Va.
April 9, 2009) (applying Shelton and barring deposition of Plaintiffs counsel because
information was available from other sources); In re Fotso, No. 05-29843, 2006 WL 4482001,
*2 (Bankr. D. Md. Nov. 27, 2006) (barring deposition of debtors attorney under the Shelton
analysis). At least one federal court has applied Shelton to depositions of a law firms
employees. In a recent decision, the District Court of Kansas concluded that the Shelton
criteria would still be applicable as depositions involving the law firms employees also has
the potential for abuse. Buth v. Allied Group, Inc., Civil Action No. 12-CV-1223-JWL-DJW,
2013 WL 1308543, *2-4 (March 28, 2013) (applying Shelton and granting motion to quash
deposition of counsels representative).
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example, the Debtors discussed the Law Firms settlement methodology in the depositions
taken subject to the Stipulated Order. A firms settlement procedures are normally protected
by the attorney work product doctrine. As a court in Massachusetts has noted:
This Court agrees . . . that allowing [defendant] access to all of these
documents, which are subject to the attorney-client privilege and work
product immunity, will unfairly give it an opportunity to exploit any internal
discussions engaged in between [a non-party witness] and its counsel and
give it advantages in future litigation.
29

32. In the settlement negotiations context, courts have recognized the
importance of guarantees of confidentiality in fostering the necessary spirit of openness and
candor. As one court noted:
If participants cannot rely on the confidential treatment of everything that
transpires during these sessions then counsel of necessity will feel
constrained to conduct themselves in a cautious, tight-lipped, non-committal
manner more suitable to poker players in a high-stakes game than to
adversaries attempting to arrive at a just resolution of a civil dispute.
30

In reliance on the protections of the Stipulated Order, the Law Firms were as candid as
possible when giving deposition testimony. Without its assurances of confidentiality, the
Law Firms would certainly have stood on their rights and resisted divulging such sensitive
and confidential material. The subjects of the depositions and discoveryinternal
procedures for settlements, trust claims, case handling and other matters integral to the
practice of personal injury lawcut to the heart of material worthy of protection from
public disclosure.

29
Dedham-Westwood Water Dist. v. National Union Fire Ins. Co., CIV.A. 96-00044, 2000 WL
33593142, *5 (Mass. Sup. Ct. Feb. 2, 2000).While the court referred to advantages in future
litigation, disclosure of a firms work product regarding its settlement procedures can be
used against that firm in future negotiations as well.
30
Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d 928, 930 (1979).
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33. Parties to an agreed protective orderhere, the Stipulated Orderhave
provided information in reliance on such an order. For that reason, good cause must be
shown to modify such a protective order. That is precisely what the Debtors ask the Court
to do in requesting that the Court remove confidentiality designations.
As the District Court of the Northern District of Indiana has observed:
The party seeking to modify the protective order has the burden of
demonstrating that good cause exists. This burden is especially high where
a protective order is agreed to by the parties before its presentation to the
court.
31

Debtors cannot meet their burden. The Motion reveals that no cause at all exists to modify
the remove confidentiality designations that is germane to the Estimation Proceedings.
34. In similar circumstances, a United States Magistrate Judge recommended that
a partys motion to vacate a protective order to which it had agreed be denied. In making
that recommendation, the court wisely observed:
It is important to recall that the defendant agreed to the entry of the order.
They need not have done so, but having done so, their agreement ought not
be blithely cast aside.
* * *
After all, the defendant did not have to agree on the order . . . . It would
then have been left to the court to determine whether the documents were
confidential and to have imposed her own protective order.
The defendant chose a different course. It negotiated and agreed to an order
that it now seeks to repudiate. Parties to litigation like parties to commercial
transactions ought to be bound by their agreements absent good reason to
excuse them.
32


31
Romary Assocs., Inc. v. Kibbi, LLC, No. 1:10-cv-376, 2012 WL 43969, *1 (N.D. Ind. Jan. 6,
2012) (citations omitted; emphasis added).
32
Kyles v. J.K. Guardian Sec. Servs., No. 97 C 8311, 2006 WL 2349238, *8 (N.D. Ill. Aug. 15,
2006).
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35. The Debtors did not have to agree to the Stipulated Order. They could have
left if to the Court to determine what information should be protected and what information
did not have to be disclosed to the Debtors at all. Debtors bait-and-switch tactics should
not be countenanced by the Court. Debtors Motion should be denied in its entirety.
JOINDER
36. The Law Firms hereby join in and adopt, as if fully set forth herein, any
arguments made by other parties in response to the Motion, to the extent applicable to and
consistent with this objection.
CONCLUSION AND PRAYER FOR RELIEF
Wherefore, for the foregoing reasons, the Law Firms respectfully urge this Court to
deny the Motion as it pertains to the Law Firms, maintain the confidentiality of the
Depositions and the Discovery Documents, and grant such other and further relief to which
the Law Firms may be justly entitled.

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Dated: July 17, 2013 /s/ G. Martin Hunter

G. MARTIN HUNTER,
ATTORNEY AT LAW
301 S. McDowell St., Suite 1014
Charlotte, North Carolina 28204
(704) 377-8764
(704) 377-0590 (facsimile)

-and-

Sander L. Esserman
David A. Klingler
David J. Parsons
Jo E. Hartwick
STUTZMAN, BROMBERG,
ESSERMAN & PLIFKA,
A Professional Corporation
2323 Bryan Street, Suite 2200
Dallas, Texas 75201
Telephone: (214) 969-4900
Facsimile: (214) 969-4999

COUNSEL FOR BELLUCK & FOX,
LLP; SHEIN LAW CENTER, LTD.;
SIMON GREENSTONE PANATIER
BARTLETT, PC; WATERS & KRAUS,
LLP; and MARK IOLA of STANLEY
IOLA, LLP
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