September 6, 2024

Beat the Clock: Efficient Bankruptcy Trust Subpoena Strategies for Defendants in Asbestos Litigation​

Mary Margaret Gay , Tricia Richardson, Sarah Beth Jones

Gay Jones & Kuhn PLLC

 

Defendants’ pursuit of plaintiffs’ asbestos bankruptcy trust claims information in tort litigation is often complex and enigmatic with information as simple as current addresses for service of the trusts often buried and difficult to confirm. Each trust has its own administrative protocols and legal procedures that are ever-changing. Subpoenaing information from these trusts is essential in many cases but requires knowledge and understanding of timelines and processes to avoid the pitfalls that can waste valuable defense time and resources. Pursuing valuable trust claims information via subpoenas without the necessary expertise may result in incomplete information or extensive delays that can negatively impact defense strategies.

Asbestos bankruptcy trusts were established as the result of numerous companies seeking bankruptcy protection due to asbestos-related liabilities. Based on a plaintiffs’ counsel advisory model, these trusts were created and remain solely focused on compensating individuals suffering from asbestos-related diseases. The trusts’ administrative resources primarily concentrate on the receipt and administration of claims, often leaving defendants’ requests for trust claims information effectively slow-tracked or ignored. 

Currently, there are more than seventy (70) active 524(g) asbestos bankruptcy trusts accepting and paying asbestos claims. Claimants, through their counsel, are required to complete forms, many online and some with simultaneous submission, and provide supporting documentation including personal identifier information, medical diagnosis and medical records, years of work, years of exposure, and product identification.  Available trust claims information often extends beyond the plaintiff in a given tort case to claims of exposures for spouses, parents, or other relatives, who may have their own cases or be involved in the plaintiff’s case through secondary exposure claims, and even co-worker witnesses alleging similar exposure.

Trusts are, by design, inaccessible to defendants in tort litigation.  Valuable trust claims information is often withheld or delayed until after a case is resolved or the case has progressed such that the information has minimal value. Properly issued subpoenas can be an effective defense tool in asbestos litigation, but the built-in delays of the asbestos bankruptcy trust system must be skillfully navigated to timely obtain the information and maximize its advantages to the defense of the case.

Identifying Available Trust Claims

Identification of viable trust claims is the first step in a timely bankruptcy trust subpoena strategy. Prior to preparing subpoenas, defense counsel should identify the trusts against which plaintiff has viable claims. Defendants should utilize the discovery process, and where available trust transparency statutes, to request and obtain information from the plaintiff about claims made or intended to be made to asbestos bankruptcy trusts.  Simultaneously, best defense practice is to utilize trust reports generated from an accurate and well-maintained defense trust database. Defense trust databases retrieve current data from trusts to access claims values and exposure site lists to evaluate and confirm claims availability. Reports from defense trust databases can provide an overview of all potential bankruptcy trust claims based on plaintiffs’ residences, worksites, secondary familial exposures, military exposures, and any other potential exposure locations.

Prioritizing Trust Subpoenas

Prioritizing subpoenas based on the most valuable claims information and a trust’s history of responsiveness is helpful in formulating a subpoena strategy for trust information.  Some asbestos trusts have electronic claims files that are more easily provided, while others can be costly and delayed by the production of paper claims files.  Some trusts have duplicative claims information resulting in compounding costs with no added value to the defense of the case.  Also, multiple trusts often share counsel, claims files, and claims processors. Consideration of these nuanced details allows defense counsel to evaluate each available trust claim and execute an effective subpoena plan.  Experienced defense bankruptcy trust attorneys can assist in advice on prioritization of the subpoenas for timely and valuable responses.  An effective subpoena strategy can ensure a defendant is receiving the claims information needed and, importantly, in a timely manner for use in the defense of a case or as leverage for case resolution.

Issuing Subpoenas

The timeline for subpoenaing information from asbestos bankruptcy trusts can vary depending on several factors. Each asbestos bankruptcy trust has its own specific procedures for responding to subpoenas. These procedures may include protocols for objections, specific timelines for responding to subpoenas, policies on payment of production costs, and guidelines for what information can be disclosed. In some cases, court approval may be required before issuing subpoenas, especially if the claim is part of ongoing litigation or if the trust has specific rules regarding subpoena issuance. Navigating the trust procedures regarding subpoenas for multiple asbestos bankruptcy trusts can be complex and time-consuming, requiring knowledge of convoluted trust rules and procedures. 

Evaluating Claims Information Received

Due to the intricacies involved, defendants are strongly advised to seek legal counsel experienced in valuing trust claims and seeking claims information in asbestos litigation. Knowledgeable expert attorneys can help streamline the process and ensure compliance with all legal requirements.  Obtaining information from asbestos bankruptcy trusts via subpoena is a critical aspect of asbestos litigation. The timing of this process can vary based on the specific trust’s procedures and any court requirements. Understanding the procedures outlined above and navigating the legal framework surrounding trust subpoenas is essential in the pursuit of bankruptcy trust claims information. By adhering to established techniques and seeking skillful legal guidance, asbestos litigants can effectively pursue information and access necessary evidence from asbestos bankruptcy trusts in a timely manner to support their cases.

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ABOUT GJ&K: Gay Jones & Kuhn PLLC offers a broad spectrum of legal services for clients in Mississippi, Louisiana, Arkansas, and Alabama, including mass tort and personal injury defense, asbestos bankruptcy trust transparency, strategic counsel services, general counsel and small business services. For more information about GJ&K, visit www.gayjoneslaw.com.