Document pBEZyvRwdy5Qxwk8Qer6R9w2w

RICHARD D. JOHNSON, Court Administrator/Clerk January 8, 2021 Allison Kathleen Krashan Schwabe Williamson & Wyatt PC 1420 5th Ave Ste 3400 Seattle, WA 98101-2339 akrashan@schwabe.com Molly Henry Schwabe, Williamson & Wyatt 1420 5th Ave Ste 3400 Seattle, WA 98101-2339 mhenry@schwabe.com Christopher Joseph Kerley Evans, Craven & Lackie, P.S. 818 W Riverside Ave Ste 250 Spokane, WA 99201-0994 ckerley@ecl-law.com James A Hertz Friedman | Rubin 1126 Highland Ave Bremerton, WA 98337-1828 jhertz@friedmanrubin.com Henry George Jones Friedman | Rubin 1126 Highland Ave Bremerton, WA 98337-1828 hjones@friedmanrubin.com Timothy John Repass Wood Smith Henning & Berman LLP 520 Pike St Ste 1525 Seattle, WA 98101-1351 trepass@wshblaw.com Louiza Michelle Dudin Wood Smith Henning & Berman LLP 520 Pike St Ste 1525 Seattle, WA 98101-1351 ldudin@wshblaw.com The Court of Appeals of the State of Washington Jennifer Lynn Campbell Schwabe Williamson & Wyatt PC 1420 5th Ave Ste 3400 Seattle, WA 98101-2339 jcampbell@schwabe.com Farron Curry Schwabe Williamson & Wyatt PC 1420 5th Ave Ste 3400 Seattle, WA 98101-2339 fcurry@schwabe.com Carolea Welton Casas Attorney at Law 1420 5th Ave Ste 3400 Seattle, WA 98101-4010 ccasas@schwabe.com Richard Friedman Friedman Rubin 1126 Highland Ave Bremerton, WA 98337-1828 rfriedman@friedmanrubin.com Sean Gamble Attorney at Law 1109 1st Ave Ste 501 Seattle, WA 98101-2988 sgamble@friedmanrubin.com Ronald Jaesung Park Attorney at Law 1109 1st Ave Ste 501 Seattle, WA 98101-2988 rpark@friedmanrubin.com Timothy D Shea Attorney at Law 520 Pike St Ste 1525 Seattle, WA 98101-1351 tshea@wshblaw.com CASE #: 82090-7-I Angela M. Bard, et al., Respondents v. Monsanto Company, et al., Petitioners No. 82090-7-I Page 1 of 9 DIVISION I One Union Square 600 University Street Seattle, WA 98101-4170 (206) 464-7750 TDD: (206) 587-5505 No. 82090-7-I Page 2 of 9 Counsel: The following notation ruling by Commissioner Masako Kanazawa of the Court was entered on January 8, 2020, regarding Petitioner's motion for discretionary review: RULING DENYING DISCRETIONARY REVIEW Bard v. Monsanto Company, No. 82090-7-I January 8, 2021 This case involves allegations of harmful exposure to chemicals known as PCBs (polychlorinated biphenyls). Defendants Monsanto Company, Solutia Inc., and Pharmacia LLC (collectively Monsanto) seek expedited interlocutory review of the trial court's discovery rulings concerning Monsanto's production of a document known as "Wheeler Interview" and later attempt to claw it back. Specifically, Monsanto seeks review of (1) an August 24, 2020 order that adopted a discovery special master's findings that Monsanto waived its attorney-client privilege over the Wheeler Interview document, (2) an October 14, 2020 order that denied Monsanto's motion for reconsideration, and (3) an October 26, 2020 order that denied Monsanto's motion to seal and issue a protective order over the document. In seeking review, Monsanto challenges the trial court's application of flexible factors to determine whether it waived its attorney-client privilege. As explained below, Monsanto fails to show an obvious error that would render further proceedings useless or a probable error that substantially alters the status quo or substantially limits its freedom to act. Discretionary review is denied. Factual Background This is one of seventeen cases filed against Monsanto for alleged harmful exposure to PCBs manufactured and sold by Monsanto. The plaintiffs allege that they were exposed to PCBs at Sky Valley Education Center in Monroe, Washington and sustained injuries as a result. Similar PCB litigations against Monsanto appear ongoing across the country. Trial in one of the Sky Valley cases began on October 26, 2020 and was continued to January 25, 2021. Trial in the present case appears expected to begin on May 24, 2021. The document known as "Wheeler Interview" at issue was created on May 12, 1972 and memorialized an interview by Monsanto's outside counsel of Monsanto's former employee and industrial hygiene specialist Elmer Wheeler in connection with PCB related litigation. The parties' current discovery dispute regarding the "Wheeler Interview" arose against a background where the plaintiffs learned that Monsanto had withheld documents as privileged while the same documents had been produced to other plaintiffs in other lawsuits and were located on a website accessible to the public (www.toxicdocs.org). The plaintiffs sought to compel discovery and sought sanctions against Monsanto for improperly withholding documents. The plaintiffs pointed out that out of roughly 777 redacted documents Monsanto produced, at least 100 of them (about 13%) were located on the website. The plaintiffs argued that as Monsanto was withholding 11,567 documents as privileged, if 13% of them were improperly withheld, that would amount to about 1,500 documents improperly withheld. Against this background, Monsanto began producing some of its withheld documents. On March 2, 2020, Monsanto produced 940 documents, which included the Wheeler Interview at issue, with Monsanto's counsel Adam Miller representing that these documents "were previously withheld as No. 82090-7-I Page 3 of 9 privileged, but we have determined were produced in prior PCB litigation." Appendix to Motion for Discretionary Review (App.) 30. The plaintiffs' experts reviewed and relied on these documents from Monsanto's voluntary production. One of their experts, Dr. Ricard DeGrandhamp, revised his prior report on PCB toxicity based on new information from the Wheeler Interview. The Wheeler Interview was posted on the toxicdocs.org website. Meanwhile, on March 25, 2020, the trial court, on the plaintiffs' motion for sanctions, appointed a special master, retired Judge Helen Halpert, to review in camera the documents withheld or redacted by Monsanto as attorney-client privileged or attorney work product and make recommendations as to what documents, if any, were improperly withheld or redacted. On July 17, 2020, more than four months after producing the Wheeler Interview, Monsanto notified plaintiffs it wished to claw it back. Monsanto did so after the document was listed on the "reliance" list for one of the plaintiffs' experts. On July 20, 2020, the plaintiffs asked the special master (Judge Halpert) to review the Wheeler Interview in camera. In a letter addressed to Judge Halpert, the plaintiffs' counsel stated that the "interview transcript is factual in nature," and the Wheeler Interview "is an important document containing key facts and admissions not otherwise available to Plaintiffs." App. 38. Counsel stated that Wheeler passed away in 1990, so it was impossible to interview him. Citing the five-factor balancing test under Division Two's opinion in Sitterson v. Evergreen School District No. 114, 147 Wn. App. 576, 588, 196 P.3d 735 (2008), which adopted the test from the Fifth Circuit's opinion in Alldread v. City of Grenada, 988 F.2d 1425, 1433 (5h Cir. 1993), the plaintiffs argued that Monsanto waived the privilege. The five "flexible" factors are (1) the reasonableness of precautions taken to prevent disclosure, (2) the amount of time taken to remedy the error, (3) the scope of discovery, (4) the extent of the disclosure, and (5) the overriding issues of fairness. Sitterson, 147 Wn. App. at 588. The plaintiffs pointed out that Monsanto produced the document months ago, representing that it "had been disclosed in prior lawsuits," and the document had been publicly available since the production. In response, Monsanto's counsel wrote to Judge Halpert on July 27, 2020 that the Wheeler Interview is protected by the attorney-client privilege and work product doctrine. Counsel stated: "On March 2, 2020, Monsanto produced approximately 1,100 documents to Plaintiffs which it had reason to believe had been produced in past litigation." App. 42 (emphasis added). Counsel did not assert that the document had not been produced in past litigation. Counsel stated that counsel sought to claw back the document as soon as its inadvertent production came to counsel's attention. Counsel cited the five-factor test to argue Monsanto did not waive its privilege. On August 5, 2020, Judge Halpert issued a seven-page order concerning the Wheeler Interview. Judge Halpert first noted that the plaintiffs did not challenge "Monsanto's assertion that the transcript falls within the attorney-client privilege, and I so find." App. 59. But she concluded that the privilege had been waived under the five-factor test. Judge Halpert made the following findings as to each of the five factors: No. 82090-7-I Page 4 of 9 (a) Reasonableness of the precautions: It appears to be undisputed that the Wheeler interview had been previously disclosed to plaintiffs' counsel in other cases, although the number of other cases and timing is not of record. Although Monsanto explains the various efforts to digitalize and rereview the very large number of documents sought in discovery, there is no explanation of how this particular problem occurred. Because of its prior disclosure in other litigation and in the absence of a specific explanation of how this document was erroneously disclosed, I conclude this was an intentional disclosure of a privileged document. (b) Amount of time taken to remedy the error: Monsanto acted almost immediately when it discovered the error on July 17. Certainly, there was a timely and aggressive attempt to claw back this document beginning on that date. However, this was more than three months after the document had been disclosed on March 2. And even before March 2, it had been released in earlier litigation, although there is no indication how widely it had been distributed or what notice Monsanto might have received regarding the earlier distributions. Further, by the time Monsanto noticed the error, the Wheeler interview had been incorporated into Dr. DeGrandchamp's report. There really is no way to unring this bell: it has been thoroughly digested by Dr. DeGrandchamp. Dr. [De]Grandchamp cannot be ordered to forget what he had read. And it would be manifestly unfair and unreasonable to require plaintiffs to obtain a new expert, which among other things would require a trial continuance and great additional expense. (c) The scope of discovery: Overall, Monsanto has produced over one million pages of discovery. However, this particular document was part of sub-disclosure of 940 documents a large, but not overwhelming, number. Monsanto is a sophisticated corporate litigator, using the services of "dozens attorneys operating from six law firms around the country," including "a second tier of reviewers" checking for accuracy. Declaration of Adam E. Miller, 7. (d) The extent of the disclosure: This was a disclosure of a clearly privileged document to opposing counsel. (e) The overriding issue of fairness: Monsanto argues that plaintiffs should have been aware that the document was disclosed in error because it was marked "attorney work product." Certainly, both parties recognize that lawyers are under an ethical obligation to promptly notify the sender when an attorney receives information that he or she knows or reasonably should know was inadvertently provided. RPC 4.4(b). However, the plaintiffs here had no reason to believe that this disclosure was inadvertent. Plaintiffs provide, as exhibit to their reply letter, other examples of documents similarly marked, which were indubitably voluntarily provided by Monsanto. Disclosure of this document arose in the context of plaintiffs' Motion to Compel and for Sanctions motion that was granted in part. See Judge Richardson's Order of March 19. Monsanto's delay in providing discovery and a privilege log are factors to be considered in assessing overall fairness. As discussed above, the Wheeler interview has been incorporated into Dr. DeGrandchamp's report. When all these factors are No. 82090-7-I Page 5 of 9 considered, I am declining Monsanto's motion to claw back this document, finding that when all of the Sitterson factors are considered, this is the only just and practical result. App. 60-62 (citations omitted). Monsanto filed a motion to challenge the special master's order. It challenged her finding that it "appears to be undisputed that the Wheeler interview had been previously disclosed to plaintiffs' counsel in other cases." Monsanto claimed this finding was based on a "misconstruction of a statement made by Monsanto." Submitting a new declaration of its attorney Adam Miller, Monsanto asserted, for the first time, that the Wheeler Interview had never been produced until its inadvertent production in March 2020. Attorney Miller acknowledged he had been "unaware of [the Wheeler Interview's] existence" before its production. App. 24. Nevertheless, Miller asserted that his earlier representation that Monsanto had previously produced the Wheeler Interview was based on his mistaken belief that Monsanto produced the document in a case filed in 1992 in federal district court in New York, Johannesen v. Monsanto. Miller stated that the claimed mistake was based on Monsanto's production logs dated November 5, 1996, which Miller stated was produced to Johannesen plaintiffs "before the November 7, 1996 deadline that was order by the Court." App. 27. Miller then asserted: "This information, therefore, reveals that the production log erroneously identified the approximate date of the privilege log, not that the documents on the privilege log were produced." App. 27. Monsanto did not provide the November 5, 1996 production log referenced in Miller's declaration. Instead, it provided a copy of the docket report from the Johannesen case indicating that a privilege log of a list of withheld documents was produced in the case on November 7, 1996. Monsanto did not provide the privilege log either. The plaintiffs' attorney Henry Jones stated in his declaration that in July 2020, he learned that Monsanto had also produced the document to the State of Oregon and the Akwesasne Mohawks without clawing it back during the relevant timeframe. Plaintiffs' Supplemental Appendix (Supp.) 2359. After the plaintiffs filed their response challenging attorney Miller's conclusion from the production and privilege logs, Monsanto attached to its reply a declaration of attorney Timothy Peck, who asserted that he was personally involved in the Johannesen litigation for Monsanto and was aware of and familiar with the Wheeler Interview as a privileged document. But attorney Peck could only say he had "no recollection" of producing the Wheeler Interview in the Johannesen case or in any other PCB-related litigation during the years in which he and his firm represented Monsanto. Peck asserted: "If I had ever been aware of such a production, I would have promptly sought to have the document returned on the grounds that it had been inadvertently produced, and I have no recollection of that." App. 20 (emphasis added). On August 25, 2020, the trial court issued an order denying Monsanto's motion to challenge the special master's order. The court adopted Judge Halpert's findings and made additional findings. The court rejected Monsanto's new assertion that it had not produced the Wheeler Interview before the production in March 2, 2020: Defendants argue that contrary to a previous statement, now claimed to have been "misconstructed," the discovery was not provided in other cases. However, Defendants' argument regarding mis-dated production and privilege logs in the Johannesen v. Monsanto Company et. al. Case, for example, are not compelling. A claimed error in dates as inferential support for proof of the existence of the logs is not helpful; no production or privilege log has been provided to the Court. It would require a leap of logic to assume that one log was misdated because the other was produced early. The No. 82090-7-I Page 6 of 9 court docket does nothing to support the claim. The Court appreciates counsel from 24 years ago attempting to remember what transpired, but there is no proof. The court also pointed out other considerations: In addition, with regard to the factors to be considered, the Court finds insufficient proof of reasonable precautions taken by the Defendants to ensue non-disclosure; the amount of time taken to remedy the error, i.e., after the Plaintiffs' expert had accessed and used the information, to be a delay potentially affecting Plaintiffs' case and time of trial; the scope of discovery at issue to be insufficient (940 pages) to be considered "enormous," although the Court recognizes that there are more than 1 million pages of total discovery in this case; and, given that the Plaintiffs' expert relied on the discovery, fairness favors the Plaintiffs. On September 3, 2020, Monsanto filed a motion for reconsideration. Almost a month later, on September 29, 2020, Monsanto filed a motion to seal the Wheeler Interview. The trial court denied both motions. Monsanto filed a motion asking the trial court to certify the issue for immediate review under RAP 2.3(b)(4). The court denied the motion as well. Decision Monsanto seeks interlocutory review of the trial court's discovery rulings. "Interlocutory review is disfavored." Minehart v. Morning Star Boys Ranch, Inc., 156 Wn. App. 457, 462, 232 P.3d 591 (2010); Maybury v. City of Seattle, 53 Wn.2d 716, 721, 336 P.2d 878 (1959). "Piecemeal appeals of interlocutory orders must be avoided in the interests of speedy and economical disposition of judicial business." Minehart, 156 Wn. App. at 462 (quoting Maybury, 53 Wn.2d at 721). This Court accepts interlocutory review only on the four narrow grounds set forth in RAP 2.3(b). Monsanto seeks review under RAP 2.3(b)(1) and (2), which set forth the following criteria: [D]iscretionary review may be accepted only in the following circumstances: (1) The superior court has committed an obvious error which would render further proceedings useless [or] (2) The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act[.] RAP 2.3(b)(1), (2) (emphasis added). Review is denied because Monsanto fails to show an obvious or probable error in the trial court's discovery rulings. Monsanto acknowledges that the special master and the trial court applied the correct five-factor balancing test, considering (1) the reasonableness of precautions taken to prevent disclosure, (2) the amount of time taken to remedy the error, (3) the scope of discovery, (4) the extent of the disclosure, No. 82090-7-I Page 7 of 9 and (5) the overriding issues of fairness. See Sitterson, 147 Wn. App. at 588. But Monsanto disagrees with the trial court's application of those factors to the circumstances of this case. The five-factor "balanced approach" is "flexible, taking into account both the principles underlying the attorney-client privilege and the realities of modern litigation." Sitterson, 147 Wn. App. at 588. Monsanto claims there are no disputed facts. It asserts the parties "did not dispute that Monsanto successfully protected the Wheeler Interview from disclosure for 48 years prior to the inadvertent disclosure in this case" and "the Wheeler Interview appeared on privilege logs protecting it from disclosure for decades." Motion for Discretionary Review at 10. But those facts are contested. The parties dispute whether Monsanto previously produced the Wheeler Interview in other litigation. The trial court's resolution of this factual question is subject to a highly deferential standard of review. See Alldread, 988 F.2d at 1434-35 (applying a highly deferential "clearly erroneous" standard of review, citing cases applying clearly erroneous or abuse of discretion standard of review). Monsanto produced the Wheeler Interview in a 940-document batch, representing that the documents "were previously withheld as privileged, but [it had] determined were produced in prior PCB litigation." App. 30. In its correspondence with the special master, Monsanto never retracted its assertion that it had previously produced the Wheeler Interview in other litigation. The special master thus stated, correctly, "It appears to be undisputed that the Wheeler interview has been previously disclosed to plaintiffs' counsel in other cases . . . ." Only after the special master issued her order did Monsanto belatedly offered attorney Miller's declaration to retract its prior representation and assert it had not previously produced the document. But Miller admitted he had been unaware of the Wheeler Interview's existence before its March 2, 2020 production at issue and further admitted that its representation of past production was based on its examination of past production log. While identifying a specific production log in a specific case, Monsanto never produced the production log or explained why it could not produce it. And only in its reply brief did Monsanto belatedly submit attorney Peck's declaration in which Peck could only state he had "no recollection" of any prior production. The trial court did not obviously or probably err in rejecting Monsanto's attempt to retract its prior representation that it had produced the Wheeler Interview in other litigation. Monsanto argues the trial court erred in concluding that Monsanto provided "insufficient proof" of reasonable precautions to prevent disclosure. But Monsanto's argument rests on its assertions that it "succeeded in protecting its privilege over the Wheeler Interview for nearly half a century" and there is "no evidence that the Wheeler Interview was ever produced prior to being inadvertently produced in this case." As explained above, the trial court did not obviously or probably err in rejecting these assertions. And the trial court did not obviously or probably err in finding that Monsanto failed to exercise reasonable precautions to prevent the disclosure of the Wheeler Interview. Monsanto produced the Wheeler Interview against the background where the plaintiffs were seeking to compel discovery of previously withheld documents and seeking sanctions against Monsanto for having improperly withheld at least 100 documents as privileged when the same documents had previously been produced in other litigation and had been publicly available. Monsanto thus had every incentive to be careful in not producing any privileged documents that had not previously been produced. Besides asserting it listed the Wheeler Interview on privilege logs, Monsanto offered no evidence to support its claim that it exercised reasonable precautions to prevent disclosure of the Wheeler Interview. Even under the non-binding, non-Washington case relied on by Monsanto, the "relevant time for rectifying any error begins when a party discovered or with reasonable diligence should have No. 82090-7-I Page 8 of 9 discovered the inadvertent disclosure." Zapata v. IBP, Inc., 175 F.R.D. 574, 577 (D. Kansas 1997) (emphasis added). Monsanto fails to show an obvious or probable error in the trial court's application of the reasonableness of the precautions factor as not favoring Monsanto. Monsanto argues that the trial court erred in giving "dispositive weight" to the plaintiffs' experts' reliance on the Wheeler Interview on multiple factors. Monsanto argues that the trial court's balancing was "unfairly tilted in favor of waiver." But the trial court did not say the plaintiffs' reliance on the Wheeler Interview was "dispositive" to its finding of waiver. And Monsanto shows no authority that would prevent the trial court from giving significant weight to the plaintiffs' reliance. See Sitterson, 147 Wn. App. at 589 (noting as relevant consideration on the fairness factor that plaintiff "used the documents only to discredit defense counsel at trial"). Even the non-binding, non-Washington case relied on by Monsanto appears to allow such consideration. See Bagley v. TRW, Inc., 204 F.R.D. 170, 182 (C.D. Cal. 2001) ("If, through no fault of the receiving party, the privileged documents had been woven into the fabric of the case, that might weigh in favor of a finding of waiver."). Monsanto asserts that Dr. Markowitz, who managed the toxicdocs.org website on which the Wheeler Interview was located, "confirmed that the document was removed from the online repository after Monsanto notified its intent to claw back the document and "confirmed the document was not shared with any other party or on any other internet site." Motion for Discretionary Review at 5 (referring to App. 91). But the record cited by Monsanto does not really support its assertion. Dr. Markowitz testified he had "the slightest idea" how many times a particular page had been viewed or downloaded, stating, "This is way out of my area of expertise." App. 90. Asked whether it was possible to determine who downloaded a particular document such as the Wheeler Interview, Dr. Markowitz said: "I haven't the slightest idea." App. 91. In the part of the transcript relied on by Monsanto, Dr. Markowitz testified only that he did not "specifically share this Wheeler interview with anyone else or post it anywhere else," "[a]side from receiving this document . . . and posting it to [his] toxicdocs Web site." App. 91. Monsanto argues that the trial court erred in considering on the scope of discovery factor only the 940document production on March 2, 2020 in which the Wheeler Interview was produced, instead of the total number of discovery in this case as a whole. But even the non-binding, non-Washington case relied on by Monsanto states that the relevant scope of discovery is the number of documents produced along with the inadvertently produced privileged document at issue. See Bagley, 204 F.R.D. at 180 ("Defendant estimates that it produced approximately 200,000 documents in response to the October 2, 1995, subpoena. That number not some larger number is the relevant universe of documents, since there apparently is no contention that privileged documents were produced inadvertently in response to the May 1995 subpoena."). In producing hundreds of thousands of document, "it is likely, if not inevitable, that some mistakes will be made, no matter how reasonable are the precautions taken and no matter how diligent and well-trained are the persons charged with implementing those precautions." Id. at 181. Here, Monsanto produced 940 documents (not hundreds of thousands of documents) not in regular discovery but in specific response to the plaintiffs' motions to compel and for sanctions regarding Monsanto's withholding of allegedly discoverable documents on allegedly improper privilege claims. Monsanto shows no obvious or probable error in the trial court's application of the scope of discovery factor to the circumstances of this case. Monsanto argues that the trial court erred in finding that the fairness factor favored the plaintiffs. Monsanto argues that because Wheeler Interview is privileged, and its production was inadvertent, fairness favors a fining of non-waiver. In light of the circumstances of the case and the flexible nature No. 82090-7-I Page 9 of 9 of the five-factor balancing test, Monsanto shows no obvious or probable error in the trial court's application of the fairness factor as favoring the plaintiffs. Monsanto argues that the trial court erroneously placed the burden of disproving waiver on Monsanto. In support of its argument that the plaintiffs had the burden of proving waiver, Monsanto cites no case applying the five-factor test. Sitterson, which adopted and applied the factors from Alldread, pointed out, for example, that the producing party "offered no evidence of any precautions he or his office took to prevent the disclosure." Sitterson, 147 Wn. App. at 588. In any event, the trial court did not appear to place the burden of disproving waiver on Monsanto. As discussed above, Monsanto represented in the first place that the 940 documents produced on March 2, 2020, including the Wheeler Interview, "were previously withheld as privileged, but [Monsanto] determined were produced in prior PCB litigation." App. 30. Before the special master, Monsanto did not retract this representation, despite the plaintiffs' assertion that Monsanto produced the Wheeler Interview along with other documents "for which any privilege protection had previously been waived." App. 40. Instead, Monsanto acknowledged to the special master "it had reason to believe [those documents] had been produced in past litigation." App. 42. In response to Monsanto's later challenge to the special master's order, the trial court rejected Monsanto's belated contrary assertion as not supported by the evidence. Monsanto's burden of proof argument presents no obvious or probable error. Monsanto fails to show an obvious or probable error in the trial court's challenged discovery rulings. Discretionary Review is denied. Please be advised a ruling by a Commissioner "is not subject to review by the Supreme Court." RAP 13.3(e) Should counsel choose to object, RAP 17.7 provides for review of a ruling of the Commissioner. Please note that a "motion to modify the ruling must be served... and filed in the appellate court not later than 30 days after the ruling is filed." Sincerely, Richard D. Johnson Court Administrator/Clerk LAM cc. Hon. Kristin V. Richardson