Garlock's Motion for Open Trial

IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA

Charlotte Division

IN RE:

GARLOCK SEALING TECHNOLOGIES LLC, et al.,

Debtors.1

Case No. 10-BK-31607

Chapter 11

Jointly Administered

MOTION OF DEBTORS TO REMOVE CONFIDENTIALITY DESIGNATIONS

FROM CERTAIN EVIDENCE FOR PURPOSES OF TRIAL Debtors bring this motion under section 5 of the Stipulated Protective Order (Docket No.

1225) to remove confidentiality designations from certain evidence that law firms have

designated as confidential under that order. Debtors do not seek to make this information public

before trial, but rather bring this motion to ensure that the evidence is aired openly at trial, as it

must be under standards of trial publicity applicable in this circuit.

Background

1. As the Court is aware, the Official Committee of Asbestos Personal Injury

Claimants (the “Committee”) and the Future Claimants’ Representative (the “FCR”) will at the

estimation trial use Debtors’ past settlements of mesothelioma claims in an attempt to

demonstrate Debtors’ liability for current and future mesothelioma claims.2

2. This use of settlements is premised on an assumption that Debtors had full

information about the exposures experienced by mesothelioma plaintiffs when Debtors settled

1 The debtors in these jointly administered cases are Garlock Sealing Technologies LLC (“Garlock”); Garrison Litigation Management Group, Ltd. (“Garrison”); and The Anchor Packing Company (hereinafter, collectively, “Debtors”).

2 Debtors have objected to this use of their settlements under Rule 408, and preserve and expressly do not waive this objection.

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Case 10-31607 Doc 2979 Filed 07/03/13 Entered 07/03/13 19:01:53 Desc Main Document Page 1 of 16

the cases. Debtors have sought and obtained discovery in this case showing that this premise is

not true. The evidence currently subject to the Stipulated Protective Order that Debtors wish to

present publicly consists of the following:

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;

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.

3. In recent years, the problem of discrepancies between tort disclosures and Trust

claims and other bankruptcy filings has become an issue of major public concern. One such

incident happened in a case presided over by Judge Peggy Ableman, who until last year

supervised all asbestos litigation in the state of Delaware. The plaintiff in that case alleged she

was exposed to asbestos only through her husband’s work clothes. But twenty Trust claims that

the plaintiff failed to disclose, in violation of Delaware discovery orders, showed not only

additional products to which she was exposed, but also that she had direct exposure to asbestos

through her own work.

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4. Moved by her experience in that case, Judge Ableman recently testified before the

Judiciary Committee of the United States House of Representatives in support of the Furthering

Asbestos Claim Transparency Act (the “FACT Act”), which would amend Bankruptcy Code

section 524(g) to require Trusts to publish the identities of persons who assert claims against

them—just as those identities would be published if claims were filed in the bankruptcy cases

that created the Trusts. Judge Ableman testified:

The problem that I came to recognize . . . is far more serious because it goes to the very heart and integrity of this litigation. Absent full disclosure, the defendants cannot be informed of the full extent of an individual’s exposure. . . . In the final analysis, there can be no real justice or fairness if the law imposes any obstacles to ascertaining and determining the complete truth. From my perspective as a judge, it is not simply the sheer waste of resources that occurs when one conducts discovery or trials without knowledge of all the facts, although that circumstance is indeed unfortunate and one that courts can ill afford in this day and age. What is most significant is the fact that the very foundation and integrity of the judicial process is compromised by the withholding of information that is critical to the ultimate goal of all litigation—a search for, and discovery of, the truth.3

James Stengel of the Orrick Herrington firm, which represents the FCR in this case, also

provided testimony about this issue, which the Judiciary Committee relied upon when it

composed its report on the FACT Act.4

5. On May 21, 2013, the Judiciary Committee approved the FACT Act.5 Within the

past year, Ohio, after considering similar evidence, passed a law requiring asbestos plaintiffs to

disclose all of their Trust claims before they can go to trial against asbestos defendants.6 The law

was upheld against constitutional challenge in an opinion rendered on July 2, 2013.7 Oklahoma’s

3 Testimony of Judge Peggy L. Ableman (ret.) (March 13, 2013) (attached as Ex. A) at 1-2, 8-9. 4 See FACT Act Report, available at http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt687/html/CRPT-112hrpt687.htm. 5 http://judiciary.house.gov/news/2013/05212013_3.html 6 Ohio Rev. Code §§ 2307.951 to 2307.954 (Ohio Am Sub. H.B. 380 (2012)). 7 Administrative Order, In re All Cuyahoga County Asbestos Cases, Case No. CV-MC-073958 (July 2, 2013) (Hanna, J.).

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http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt687/html/CRPT-112hrpt687.htm

http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt687/html/CRPT-112hrpt687.htm

http://judiciary.house.gov/news/2013/05212013_3.html

legislature also just passed such a bill, which the governor is expected to sign, and bills have also

been introduced in Illinois, Wisconsin, and Mississippi.8 In addition, countless courts in

important jurisdictions have adopted case management orders designed to ensure that defendants

learn the full story about a plaintiff’s asbestos exposures before trial, as the search for truth in

asbestos litigation demands.9

6. The law firms designated as Confidential Information, pursuant to the Stipulated

Protective Order, almost all of the documents they produced in response to Debtors’ subpoenas,

as well as their deposition testimony. They continue to designate as Confidential Information

documents such as Trust claim forms and supporting submissions, plan confirmation ballots,

Rule 2019 statements filed in other asbestos bankruptcy cases and other documents, as well as

testimony related to the Designated Plaintiffs’ exposures to products of Garlock’s former,

bankrupt co-defendants. None of these documents or testimony could be protected from

disclosure in asbestos trials, but instead would be evidence highly probative of the causes of the

plaintiffs’ diseases. Garlock will offer this evidence at the estimation trial to prove, among other

things, that plaintiffs in asbestos suits against Garlock routinely failed to identify injury-causing

exposures to the asbestos products of bankrupt co-defendants, that certain law firms pursued a

strategy of concealing their clients’ claims against asbestos Trusts (and exposure evidence

supporting such claims) in order to maximize the trial and settlement values of their claims

against Garlock, and that such practices in fact did drive up Garlock’s litigation costs and trial

risk.

8 See, e.g., http://legalnewsline.com/issues/asbestos/239253-miss-bill-would-require-more-asbestos-claim-transparency. 9 See, e.g., In re New York City Asbestos Litig., 37 Misc. 3d 1232(A), 2012 WL 6554893, at *10 (N.Y. Sup. Ct. N.Y. County Nov. 15, 2012) (rejecting plaintiff challenge to CMO provision requiring all New York City plaintiffs to file and disclose all intended Trust claims before trial).

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http://legalnewsline.com/issues/asbestos/239253-miss-bill-would-require-more-asbestos-claim-transparency

http://legalnewsline.com/issues/asbestos/239253-miss-bill-would-require-more-asbestos-claim-transparency

7. On March 1, 2013, Debtors notified the law firms, as well as counsel for the

Committee and FCR, that they challenged the blanket designations as Confidential Information

of the deposition testimony and documents produced in discovery, under section 5 of the

Stipulated Protective Order. Debtors excluded certain information from this challenge, including

any medical information, all but the last four digits of social security numbers and taxpayer

identification numbers, all but the year of any individual’s birth, the names of any minors, and all

but the last four digits of any financial account number.

8. In response, the law firms refused to remove confidentiality designations from

Trust claims, ballots, and Rule 2019 statements, or from deposition testimony, but failed to

provide any basis for claims of confidentiality.

9. Debtors met and conferred in good faith with counsel for the law firms, as

required by the Stipulated Protective Order. These conferences have not yet resulted in resolution

of the disputes that led to this motion. Debtors will continue to meet and confer with counsel for

the law firms to pursue resolution of any continuing disputes related to their Confidentiality

Designations.

10. Meanwhile, during the pendency of this case, counsel for the Committee and one

of the law firms subject to the discovery have made public statements that Debtors believe

contradict the discovery Debtors have obtained. The uniform theme of these statements is that

asbestos defendants such as Garlock have not been able to produce any evidence at all of

incomplete disclosure of exposure facts in the tort system.

11. In 2011, Mr. Charles Siegel, a partner in the Waters & Kraus firm, testified before

a subcommittee of the Judiciary Committee that “despite the asbestos defendants scouring the

legal system looking for examples of inconsistencies between tort litigation and trust

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submissions, they were able to come up with only three isolated examples of alleged

inconsistencies between the trust submissions and discovery responses filed by those clients in

the tort system. And in each of these cases, current law provided a remedy.”

12. On February 20, 2013, Mr. Elihu Inselbuch and other lawyers from Caplin &

Drysdale, published an article on these issues where they stated, specifically referencing this

bankruptcy case, “In recent bankruptcy filings, such as the Garlock case . . . defendants have

created a narrative in which the existence of trusts is somehow unfair to them while presenting

asbestos victims with an opportunity to commit fraud. Repeatedly invoking one case (out of

hundreds of thousands of asbestos claims filed) [the Kananian case]. . . asbestos defendants have

justified these legislative initiatives . . .”10

13. Mr. Inselbuch testified similarly before the Judiciary Committee, in opposition to

the FACT Act, on March 13, 2013: “Lastly, the bill also ignores the fact that despite trying to

find instances of widespread fraud and abuse, there is none. Defendants have no evidence to

support their assertions of fraud by plaintiffs. The Kananian case, on which they so heavily rely,

was an isolated incident, remedied by a state court, involving inconsistent trust claims with

respect to a single claimant, one of the millions who have filed claims with asbestos trusts.”11

14. These public statements are directly contradicted by discovery obtained from the

law firms in these cases, as Debtors will prove at trial. To influence policy makers who are

considering federal legislation that would remedy abuse facilitated by the lack of Trust

transparency, however, the law firms and Committee counsel are publicly, and inaccurately,

stating that Garlock has been unable to discover evidence supporting its allegations of Trust-

10 Elihu Inselbuch, et al., The Effrontery of the Asbestos Trust Transparency Legislation Efforts, 28-2 Mealey’s Litig. Rep. Asb. 17 (Feb. 20, 2013). 11 Statement of Elihu Inselbuch at 11, available at http://judiciary.house.gov/hearings/113th/03132013_3/Inselbuch%2003132013.pdf.

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http://judiciary.house.gov/hearings/113th/03132013_3/Inselbuch%2003132013.pdf

related discovery abuse. In so doing, they are using confidentiality designations to prevent

Garlock from offering an accurate account of evidence it has uncovered, evidence that would

provide strong support for proposed legislation that would remedy Trust abuse and ensure that

Garlock and other companies are able to obtain evidence relevant to asbestos products that

contributed to the diseases of plaintiffs who assert claims against them.

15. In short, the designations applied to this evidence will, if imposed at trial, prevent

Congress, the public, state legislatures, state and federal courts, other defendants, and other

interested parties from getting the full story on these issues of major public concern. Most

important, they will prevent Garlock from having an open trial, as guaranteed by the Constitution

and the law of this circuit.

Relief Requested

16. Debtors request that certain evidence they intend to offer at the estimation trial

relevant to the issue of incomplete disclosure of exposure information not be sealed or otherwise

protected from public access. Debtors do not intend to publicize this evidence before it is

introduced at trial, but wish to ensure that when they do present the evidence, it will be publicly

available.

17. Specifically, the following evidence should not be sealed:

a. Trust claim forms (and attachments), ballots, and Rule 2019 statements of

Designated Plaintiffs, which contain admissions of exposure to asbestos and show

incomplete disclosure of exposure information in tort litigation; and

b. Testimony by law firms concerning their practices with respect to filing Trust

claims and disclosing exposure evidence to tort defendants, including the

testimony Debtors have designated today from Waters & Kraus, Williams

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Kherkher, Belluck & Fox, Shein Law Center, the David Law Firm, and Simon

Greenstone Panatier Bartlett.

18. Debtors agree that certain information that may be contained in the documents is

legitimately protected and should be redacted before the documents are introduced into evidence

at the trial, including any medical information, all but the last four digits of social security

numbers and taxpayer identification numbers, all but the year of any individual’s birth, the

names of any minors, and all but the last four digits of any financial account number.

Argument

I. This Case Does Not Present the “Unusual” Circumstances That Would Justify the Abrogation of the Public’s Right to Access, Especially in Light of the Strong Presumption Favoring Public Access

19. Federal civil trials and the evidence presented therein are presumptively open to

the public. The right of public access is guaranteed by section 107 of the Bankruptcy Code, see

11 U.S.C. § 107, as well as by both the U.S. Constitution and federal common law, see Stone v.

Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988).

20. In particular, section 107 provides that “a paper filed in a case under this title and

the dockets of a bankruptcy court are public records and open to examination by an entity at

reasonable times without charge.” 11 U.S.C. § 107(a). Section 107 recognizes only three

exceptions to public access: (1) to protect a trade secret or confidential research, development, or

commercial information, 11 U.S.C. § 107(b)(1); (2) to protect a person “with respect to

scandalous or defamatory matter contained in a paper filed in [the] case,” 11 U.S.C. § 107(b)(2);

and (3) to protect against an “undue risk of identity theft or other unlawful injury to the

individual or the individual’s property.” 11 U.S.C. § 107(c)(1). These exceptions are construed

narrowly in order to effectuate Congress’s intent to provide broad public access to bankruptcy

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proceedings. See Ferm v. United States Trustee (In re Crawford), 194 F.3d 954, 960 n.8 (9th Cir.

1999). The proponent of sealing bears the burden of proof. See In re Waring, 406 B.R. 763, 768

(Bankr. N.D. Ohio 2009) (proponent of sealing failed to demonstrate protected information is a

trade secret or protectable commercial information).

21. In addition to section 107, the common law and First Amendment protect the

public’s right to access civil trials and evidence presented therein.12 See Am. Civil Liberties

Union v. Holder, 673 F.3d 245, 252 (4th Cir. 2011). Under these sources of law, a party seeking

to close a hearing or seal documents must overcome “a strong presumption in favor of

openness.” In re Knight Pub. Co., 743 F.2d 231, 234 (4th Cir. 1984). The Fourth Circuit has

explicitly stated that “‘[c]losed proceedings . . . must be rare and only for cause shown that

outweighs the value of openness,’” id. (quoting Press-Enterprise Co. v. Superior Court, 464 U.S.

501, 509 (1984)), and has held that the right of access “may be abrogated only in unusual

circumstances,” Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004)

(quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 182 (4th Cir. 1988)). A court

proposing to close a hearing or seal documents therefore “must state its reasons on the record,

supported by specific findings,” and “must state its reasons for rejecting alternatives to closure.”

Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253-54 (4th Cir. 1988) (quoting In re

Knight Pub. Co., 743 F.2d 231, 234–35 (4th Cir. 1984)). At its core, the right-to-access doctrine

protects “the public’s right to monitor the functioning of our courts, thereby insuring quality,

honesty and respect for our legal system.” In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th

12 The Fourth Circuit does not appear to have addressed whether section 107 provides narrower grounds for closing trials than in other federal courts, as some courts have held. Debtors contend, and expressly do not waive, the argument that section 107’s exceptions are the exclusive circumstances under which documents in this bankruptcy case may be sealed.

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Cir. 1984) (cited by Rushford, 846 F.2d at 252-53); see also Globe Newspaper Co. v. Superior

Court for Norfolk Cnty., 457 U.S. 596, 606, (1982).

22. Under the First Amendment, the party seeking closure bears the burden of

showing a “compelling” interest sufficient to override the presumption in favor of openness and

“must present specific reasons in support of its position.” Va. Dep’t of State Police, 386 F.3d at

575; Rushford, 846 F.2d at 252. Further, any closure must be “narrowly tailored to serve that

interest.” Id.

23. The common law provides an additional source of support for the public right to

access, independent of the First Amendment and section 107. See In re Wash. Post Co., 807 F.2d

383, 390 (4th Cir. 1986). The common law requires that the party seeking closure bear the

burden of showing a “significant interest” that outweighs the presumption in favor of openness

by presenting specific reasons in support of its position. Va. Dep’t of State Police, 386 F.3d at

575 (and recognizing that if access would enhance the public’s understanding of important issues

and events, case for access is stronger); Knight, 743 F.2d at 235; In re Gitto Global Corp., 422

F.3d 1, 6 (1st Cir. 2005) (noting that, although possible to limit the common law right of public

access, “only the most compelling reasons can justify non-disclosure of judicial records”

(internal quotation omitted)).

II. Evidence Showing Incomplete Disclosure of Exposure Evidence in Mesothelioma Litigation Cannot Be Protected From Public Access

24. The law firms’ designations as confidential of evidence relating to incomplete

disclosure of exposure evidence in cases against Garlock cannot meet the legal standards for

closure and sealing in this circuit. Those designations should be removed for purposes of the

estimation trial.

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25. In the first place, none of this evidence satisfies any of the exceptions to

Bankruptcy Code section 107. The evidence does not constitute a “trade secret.” There is no

“risk of identity theft or other unlawful injury” to individuals, because Debtors have committed

to redacting all but the last four digits of social security numbers as well as any medical

information. The plaintiffs in cases against Garlock have already appeared and offered evidence

of their injuries (and the alleged causes thereof) in public courts. In several of these cases,

plaintiff firms issued press releases about the outcome of the case, specifying the plaintiff by

name, and discussed one case openly in Congressional testimony.

26. Nor does the evidence contain “scandalous or defamatory matter” within the

meaning of section 107. The evidence contains facts about plaintiffs’ exposures and what was

disclosed in the tort cases, including admissions by plaintiffs and law firms, not scandalous or

defamatory statements.

27. In addition, with respect to the First Amendment and the common law, there is

neither a “compelling” nor “significant” interest that could override or outweigh the public’s

right to access here. In general, evidence of exposure to asbestos is not confidential when

presented in court—whether evidenced by interrogatories, depositions, or Trust claims. A

plaintiff’s exposures are, in a real way, the substance of these trials, and are never kept private.

See Craig v. Harney, 331 U.S. 367, 374 (1947) (“A trial is a public event. What transpires in the

court room is public property.”).

28. Nor does such evidence become confidential when it tends to show that

disclosures of exposure evidence were incomplete. In each of the high profile incidents where

incomplete disclosure has been uncovered, the evidence was presented in open court, which is

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how they came to the attention of the press, legislators, and the general public. See Testimony of

Judge Peggy Ableman (ret.), supra.

29. In contrast to the non-existent interest in keeping this information sealed, the

public has an especially weighty interest in having access. See Under Seal v. Under Seal, 27 F.3d

564, 1994 WL 283977, at *2 (4th Cir. June 27, 1994) (unpublished) (“Courts have also

recognized that when cases involve matters of particular public interest . . . the rationale for

public access is even greater.”). The issue of incomplete disclosure of exposure evidence is one

of major public concern, which militates in favor of access. See Va. Dep’t of State Police, 386

F.3d at 575 (stating that access would be favored where it “would enhance the public’s

understanding of an important historical event” (citing Nixon v. Warner Communications, Inc.,

435 U.S. 589, 602 (1978)).

30. Congress has held three sets of hearings on the subject. The Judiciary Committee

has approved a bill that would help remedy this issue. Ohio has enacted into law a bill aimed at

remedying the issue, and the Oklahoma legislature has passed a similar bill that is expected to

become law. Other state legislatures are currently considering similar bills. Courts across the

country have taken or are taking steps to impose case management order provisions that will

prevent incomplete disclosure in the future. Courts dealing with cases where this happened have

received significant coverage in the press. The issue has received sustained attention from some

of the nation’s leading publications, including Forbes and the Wall Street Journal.13 Legislators,

courts, the press, and participants in asbestos litigation will likely be monitoring the July

estimation trial, and will be highly interested in evidence of this nature submitted there. See

Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983) (“[O]pen proceedings may be

13 See Dionne Searcey and Rob Barry, “As Asbestos Claims Rise, So Do Worries About Fraud,” Wall Street Journal (March 11, 2013) (attached as Ex. B).

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imperative if the public is to learn about the crucial legal issues that help shape modern society.

Informed public opinion is critical to effective self-governance.”); see also Va. Dep’t of State

Police, 386 F.3d at 575 (stating that purpose for seeking access is a relevant factor in the

common law test).

31. In addition to the public in general, persons with a financial stake in this case have

an interest in seeing this evidence when presented at the estimation trial. The owner of Garlock’s

parent is a publicly traded company. Its shareholders, as well as the market for public securities,

are highly interested in all evidence submitted at the estimation trial, especially evidence

submitted on a matter of major public concern such as this. Debtors also have numerous creditors

who are not asbestos claimants, and they too have an interest in monitoring the estimation trial.

See Richmond Newspapers v. Virginia, 448 U.S. 555, 572 (1980) (Burger, C.J.) (“People in an

open society do not demand infallibility from their institutions, but it is difficult for them to

accept what they are prohibited from observing.”); see also Press–Enterprise Co. v. Superior

Court, 464 U.S. 501, 508 (1984) (“The value of openness lies in the fact that people not actually

attending trials can have confidence that standards of fairness are being observed; the sure

knowledge that anyone is free to attend gives assurance that established procedures are being

followed and that deviations will become known.” (emphasis in original)).

32. Finally, it would be especially inappropriate to seal this evidence in light of the

public statements made by Mr. Inselbuch (counsel for the Committee) and Mr. Siegel (partner at

Waters & Kraus, which serves on the Committee) that are directly contradicted by the evidence.

Mr. Siegel has testified that there are only “three isolated examples of alleged inconsistencies

between the trust submissions and discovery responses” and that “in each of these cases, current

law provided a remedy.” Mr. Inselbuch has testified that “despite trying to find instances of

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widespread fraud and abuse, there is none,” and that “[t]he Kananian case . . . was an isolated

incident, remedied by a state court.” Debtors will show at the estimation trial that these

statements are contradicted by the evidence obtained through discovery in this case.

33. As the Supreme Court has previously recognized, the constitutional and common

law arguments that underlie the public’s right to access apply with particular force where a party

in the action—Garlock, in this case—seeks an open proceeding. See Richmond Newspapers, Inc.

v. Virginia, 448 U.S. 555, 596 (1980) (Brennan, J., concurring) (“[A] trial aims at true and

accurate factfinding. Of course, proper factfinding is to the benefit of criminal defendants and of

the parties in civil proceedings . . . . Facilitation of the trial factfinding process, therefore, is of

concern to the public as well as to the parties.”); Brown & Williamson Tobacco Corp. v. FTC,

710 F.2d 1165, 1179 (6th Cir. 1983) (identifying the impact of open access on the parties, noting

that “secrecy insulates the participants, masking impropriety, obscuring incompetence, and

concealing corruption;” open trials facilitate accurate fact finding, and “[o]penness in the

courtroom discourages perjury and may result in witnesses coming forward with new

information regardless of the type of the proceeding”); Press-Enter. Co. v. Superior Court of

California for Riverside Cnty., 478 U.S. 1, 7 (1986) (holding, in the criminal context, that “[t]he

right to an open public trial is a shared right of the accused and the public, the common concern

being the assurance of fairness”).

34. And, to be sure, common sense says that when one party wants to shroud an issue

of great importance that has already received extensive coverage behind a veil of secrecy, that

fact alone may be an indication of why the other party has a particularly acute interest in having

the court, the parties, and the public carefully scrutinize the facts underlying the dispute in order

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to reach their own conclusions. See Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165,

1180 (6th Cir. 1983).

35. In sum, the public is entitled to see and evaluate this evidence and determine for

itself whether Mr. Inselbuch and Mr. Siegel’s testimony—and any similar testimony that the

Committee and FCR may offer at this trial—is accurate. It would be fundamentally unfair for

Congress, the public, state legislators, state and federal courts, other asbestos defendants,

shareholders in Debtors’ parent, and Debtors’ other creditors to have to rely on an inaccurate and

one-sided public account of this important issue. An open trial will enable all of those with an

interest involved to determine the truth for themselves as to whether the heretofore publicized

instances of this conduct were, in fact, merely “isolated” occurrences. Because, as the Supreme

Court has observed, “[f]or many centuries, both civil and criminal trials have traditionally been

open to the public. As early as 1685, Sir John Hawles commented that open proceedings were

necessary so ‘that truth may be discovered in civil as well as criminal matters.’” See Gannett

Co., Inc. v. DePasquale, 443 U.S. 368, 387 n.15 (1979) (quoting Remarks upon Mr. Cornish’s

Trial, 11 How. St. Tr. 455, 460)); see also Louis D. Brandeis, Other People’s Money 92 (1914)

(“Sunshine is said to be the best of disinfectants.”).

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This 3rd day of July 2013 Respectfully submitted, /s/ Garland S. Cassada Garland S. Cassada N.C. Bar No. 12352 Jonathan C. Krisko N.C. Bar No. 28625 Richard C. Worf, Jr. N.C. Bar No. 37143

ROBINSON BRADSHAW & HINSON, P.A. 101 North Tryon Street, Suite 1900 Charlotte, North Carolina 28246 Telephone: (704) 377-2536 Facsimile: (704) 378-4000 [email protected] [email protected] [email protected] Special Corporate and Litigation Counsel to the Debtors Garlock Sealing Technologies LLC, Garrison Litigation Management Group, Ltd., and The Anchor Packing Company

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