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FILED & JUDGMENT ENTERED
Steven T. Salata

July 2 2018

Clerk, U.S. Bankruptcy Court

Western District of North Carolina
_____________________________
Laura T. Beyer
United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT

WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

In re:

BESTWALL LLC,1 Chapter 11

Case No. 17-31795 (LTB)
Debtor.

AGREED ORDER ESTABLISHING NON-WAIVER AND OTHER CONDITIONS

FOR ACCESS TO AND USE OF THE DEBTOR’S ELECTRONIC
SALES RECORDS DATABASE AND UNDERLYING PAPER RECORDS

RECITALS

A. In connection with a joint effort by Bestwall LLC, the debtor in this chapter 11

case (the “Debtor”), the Official Committee of Asbestos Claimants (the “ACC”), and the Future

Claimants’ Representative (the “FCR” and, together with the Debtor and the ACC, the

“Parties”) to explore an early consensual resolution of this proceeding, the Debtor has

commenced production of documents, in response to information and diligence requests from

the ACC, to both the ACC and the FCR. The Debtor also has made additional information

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The last four digits of the Debtor’s taxpayer identification number are 5815. The Debtor’s address is
100 Peachtree Street, N.W., Atlanta, Georgia 30303.
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available to the ACC and the FCR through a shared data room. All such material designated as

confidential has been provided subject to the terms of the Agreed Protective Order Governing

Confidential Information [Docket No. 337] (the “Protective Order”).

B. Among the documents that the ACC requested are historic records reflecting sales

of asbestos-containing products. The paper production of these historic sales records would

comprise approximately 1,200 boxes (the “Paper Records”).

C. Before the Debtor commenced this chapter 11 case, the Debtor’s predecessor in

interest began developing a database for its own use in the defense of pending and anticipated

litigation, which database includes electronic images of the documents contained in the Paper

Records along with certain descriptive coding. Although the database is still undergoing review

for quality and completeness, it is a functional tool for searching and reviewing imaged sales

records.

D. The Debtor has advised each of the ACC and the FCR that it has assembled

the Paper Records in Atlanta, Georgia. Nevertheless, the Debtor, the ACC, and the FCR have

agreed that, at this time, instead of providing access to the Paper Records, it is more efficient and

cost-effective for the Debtor to create a second copy of the electronic images of the sales records

and related descriptive information maintained within the database (such copy, as it may be

updated or supplemented, the “Sales Records Database”) and provide access thereto, subject to

the terms of this Agreed Order, solely to the following professionals for the ACC and the FCR:

(1) Montgomery, McCracken, Walker & Rhoads, LLP and Legal Analysis Systems, Inc. for the

ACC; (2) Young Conaway Stargatt & Taylor, LLP, and Ankura Consulting Group, LLC for

the FCR; and (3) FTI Consulting, Inc. for both the ACC and the FCR; and (4) any other

professionals retained by the ACC and/or the FCR by Bankruptcy Court order in this chapter 11

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case to whom the Debtor has agreed in writing to permit access (all four categories collectively,

the “Professionals”). In addition, the Sales Records Database may be made available to any

experts retained by the Professionals, provided that those experts (1) are not counsel representing

litigants in asbestos litigation in the tort system; and (2) agree to be bound by the terms of this

Agreed Order by executing an acknowledgement in the form attached hereto as Exhibit A (any

such permitted experts, the “Experts”).

E. In exchange for the Debtor providing the Professionals and the Experts

(collectively, the “Professional Parties”) with access to the Sales Records Database, the ACC,

the FCR, and their respective Professional Parties agree that (1) access to the Sales Records

Database will be limited to the Professional Parties and (2) the Professional Parties will use the

Sales Records Database and the information obtained solely from the Sales Records Database

only in this Bankruptcy Proceeding (as defined below) and will not disclose any of the foregoing

outside the Bankruptcy Proceeding, it being understood that access is provided to the

Professional Parties solely for the purpose of carrying out the respective duties of the ACC and

the FCR in connection with the above-captioned chapter 11 case of the Debtor pending in the

above-captioned court (the “Bankruptcy Court”) or any portion of such case that is withdrawn

to the district court for this district (the “District Court”) or transferred to another bankruptcy or

district court (the “Chapter 11 Case”), as well as in any related adversary proceedings in the

Chapter 11 Case, whether pending in the Bankruptcy Court or the District Court or another

bankruptcy or district court, and in any proceedings in any courts in which appeals or other

applications for review of orders or judgments of such bankruptcy and district courts may be

made (together with the Chapter 11 Case, the “Bankruptcy Proceeding”). The Professional

Parties further agree that they will not replicate or attempt to replicate the Sales Records

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Database. For avoidance of doubt, the restriction on replication of the Sales Records Database

will not in any manner limit or restrict the ACC or the FCR from using or filing in the

Bankruptcy Proceeding individual sales records from the Sales Records Database or restrict the

Professional Parties from preparing summaries, memoranda, or other compendia or work product

based on the information contained in the Sales Records Database (individually and collectively,

the “Work Product”) and sharing that Work Product with the FCR and/or the members of the

ACC or counsel representing those members on the ACC or in the Chapter 11 Case (such

counsel, the “Representatives”) for use only in the Bankruptcy Proceeding.

F. The ACC, the FCR, and their Professional Parties also agree that, to the extent

the Sales Records Database is protected from disclosure as attorney work product, any such

protection is not waived by disclosure connected with the Bankruptcy Proceeding, nor will

the disclosure of the Sales Records Database operate as a waiver of any privilege or protection in

this or any other federal or state proceeding as to the Sales Records Database or the Paper

Records. Nothing contained herein constitutes agreement by the ACC or the FCR that the Sales

Records Database or the Paper Records are entitled to work-product or any other privilege or

protection, and the respective rights of the Parties on this issue are fully reserved.

NOW, THEREFORE, THE PARTIES FURTHER AGREE, AND IT IS HEREBY

ORDERED THAT:

1. Only the Professional Parties shall have access to the Sales Records Database, and

the Professional Parties, except as set forth herein, shall not share, or permit any other person to

gain, access thereto. The ACC, its members or their Representatives, the FCR, and their

respective advisors (including the Professionals and the Experts) will use the Sales Records

Database, and the information obtained solely from the Sales Records Database pursuant to

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the terms hereof and only for the purpose of carrying out the duties of the ACC and the FCR

pursuant to the Bankruptcy Code in connection with the Bankruptcy Proceeding, and shall not

disclose that information for use outside of this Bankruptcy Proceeding. The Professional Parties

shall not replicate or attempt to replicate the Sales Records Database, provided that this

restriction shall not in any manner limit or restrict the ACC or the FCR from using or filing

individual sales records in the Bankruptcy Proceeding or restrict the Professional Parties from

preparing Work Product and sharing that Work Product with the FCR and/or the members of

the ACC or their Representatives for use only in the Bankruptcy Proceeding. For avoidance of

doubt and without limiting any of the terms hereof, individual records drawn from the Sales

Records Database can be filed or disclosed in the Bankruptcy Proceeding without the restrictions

that apply to documents designated “Confidential” under the Protective Order.

2. Unless otherwise provided in a plan of reorganization or court order, upon

(a) the later of either the effective date of a plan of reorganization in the Chapter 11 Case, or

the exhaustion of all appeals, if any, of the order confirming the plan; or (b) the entry of an order

dismissing the Chapter 11 Case, access to the Sales Records Database by the Professional Parties

shall be extinguished, and within 90 days thereafter the ACC, its members, the FCR, and their

respective advisors (including the Professionals and the Experts) shall destroy or cause to be

destroyed all artifacts, printouts, summaries, or copies of information generated from the Sales

Records Database, without retention of any electronic or paper copy thereof, except that (i) the

Professional Parties may retain for their respective records their work product and copies of court

filings, deposition transcripts, or recordings, as well as any exhibits used therein, expert reports,

and exhibits introduced at any hearing; (ii) emails concerning the sales records contained in

the Sales Records Database may be retained and not destroyed; and (iii) incidental copies of

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individual sales records from the Sales Records Database that are in the Professional Parties’

files need not be identified and destroyed if doing so would be unduly burdensome (it being

understood and agreed that the Professional Parties will copy or print sales records as necessary

for their work in connection with this Bankruptcy Proceeding and will not copy or print sales

records from the Sales Records Database for the purpose of collecting, maintaining, or archiving

them). Further, consistent with item (iii) in the prior sentence, any individual sales records that

are auto-archived or otherwise “backed up” on electronic management and communications

systems or servers, or as may be required for regulatory recordkeeping purposes, may also be

maintained in that manner. Any material from the Sales Records Database retained pursuant to

this paragraph, including any Work Product, that is not otherwise publicly available shall remain

subject to the terms of this Agreed Order and shall not be used or made available for use outside

of the Bankruptcy Proceeding.

3. Pursuant to Federal Rule of Evidence 502(d), to the full extent the Sales Records

Database may be protected from disclosure as attorney work product, any such protection is not

waived by disclosure connected with the Bankruptcy Proceeding, nor will the disclosure of

the Sales Records Database operate as a waiver of any privilege or protection in this or any other

federal or state proceeding as to the Sales Records Database or the Paper Records. For

the avoidance of doubt and without limiting the foregoing, the ACC, its members and their

Representatives, the FCR, and the advisors to the foregoing (including the Professionals and

the Experts) shall not argue in any proceeding or forum that the Professional Parties’ access to

the Sales Records Database permitted hereunder shall in any manner (a) be deemed to be a

waiver of, or diminish, any privileges or protections of the Debtor as to the Sales Records

Database or the Paper Records; or (b) be used as a basis to seek discovery of, or access to,

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the Sales Records Database outside of the Bankruptcy Proceeding. Similarly, the Debtor shall

not argue in any proceeding or forum that the decision of the ACC and the FCR to enter into this

Agreed Order: (i) created any privileges or protections in favor of the Debtor that it did not

already have as to the Sales Records Database or the Paper Records; or (ii) waived any argument

by the ACC or the FCR that the Sales Records Database or the Paper Records lack any attorney

work product or other protections.

4. Nothing herein shall modify or limit the terms of the Protective Order, which shall

continue to govern the production and use of Covered Material (as defined therein).

5. Although the Debtor is not providing access to the Paper Records at this time,

the ACC and the FCR reserve the right to seek production of the Paper Records. The Debtor

reserves and retains the right to seek appropriate protections for and restrictions on use of

the Paper Records, including measures that would protect the Paper Records to the same degree

as the Sales Records Database, as a condition of providing any such access. The ACC and

the FCR retain their rights to oppose any requested protections for and restrictions on use of

the Paper Records on the basis that they are not privileged or confidential or on any other basis,

except as set forth above in paragraph 3.

6. This Court shall retain jurisdiction to hear and determine all matters arising from

or related to the interpretation, implementation, or enforcement of this Agreed Order.

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AGREED AND CONSENTED TO BY:
/s/ Gregory M. Gordon
Garland S. Cassada (N.C. Bar No. 12352)
David M. Schilli (N.C. Bar No. 17989)
Andrew W.J. Tarr (N.C. Bar No. 31827)
ROBINSON, BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Telephone: (704) 377-2536
Facsimile: (704) 378-4000
E-mail: gcassada@robinsonbradshaw.com
dschilli@robinsonbradshaw.com
atarr@robinsonbradshaw.com
-and-
Gregory M. Gordon (TX Bar 08435300)
Dan B. Prieto (TX Bar 24048744)
Amanda Rush (TX Bar 24079422)
JONES DAY
2727 North Harwood Street
Dallas, Texas 75201
Telephone: (214) 220-3939
Facsimile: (214) 969-5100
E-mail: gmgordon@jonesday.com
dbprieto@jonesday.com
asrush@jonesday.com
-and-
Jeffrey B. Ellman (GA Bar No. 141828)
Brad B. Erens (IL Bar No. 620664)
JONES DAY
1420 Peachtree Street, N.E., Suite 800
Atlanta, Georgia 30309
Telephone: (404) 521-3939
Facsimile: (404) 581-8330
E-mail: jbellman@jonesday.com
bberens@jonesday.com
Counsel for the Debtor and the Debtor in
Possession
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/s/ Glenn C. Thompson
Glenn C. Thompson (Bar No. 37221)
HAMILTON STEPHENS STEELE
+ MARTIN, PLLC
525 North Tryon Street, Suite 1400
Charlotte, North Carolina 28202
Telephone: (704) 344-1117
Facsimile: (704) 344-1483
E-mail: gthompson@lawhssm.com
-and-
Judy D. Thompson
Linda W. Simpson
JD THOMPSON LAW
Post Office Box 33127
Charlotte, North Carolina 28233
Telephone: (828) 749-1865
E-mail: jdt@jdthompsonlaw.com
lws@jdthompsonlaw.com
-and-
Natalie D. Ramsey (DE Bar No. 5378)
Mark A. Fink (DE Bar No. 3946)
MONTGOMERY, McCRACKEN,
WALKER & RHOADS, LLP
1105 North Market Street, 15th Floor
Wilmington, DE 19801
Telephone: (302) 504-7800
Facsimile: (302) 504-7820
E-mail: nramsey@mmwr.com
mfink@mmwr.com
Counsel to the Committee of Asbestos
Claimants of Bestwall LLC
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/s/ Felton E. Parrish

Felton E. Parrish (NC Bar No. 25448)
HULL & CHANDLER, P.A.
1001 Morehead Square Drive, Suite 450
Charlotte, NC 28203
Telephone: (704) 375-8488
Facsimile: (704) 375-8487
E-mail: fparrish@lawyercarolina.com

-and-

James L. Patton Jr. (DE Bar No. 2202)

Edwin J. Harron (DE Bar No. 3396)
Sharon M. Zieg (DE Bar No. 4196)
Sara Beth A.R. Kohut (DE Bar No. 4137)
YOUNG CONAWAY STARGATT &
TAYLOR LLP
Rodney Square
1000 North King Street
Wilmington, DE 19801
Telephone: (302) 571-6600
Facsimile: (302) 571-1253
E-Mail: jpatton@ycst.com
eharron@ycst.com
szieg@ycst.com
skohut@ycst.com

Counsel to the Future Claimants’

Representative

This Order has been signed electronically. The judge’s United States Bankruptcy Court
signature and court’s seal appear at the top of the Order.
1503877086

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UNITED STATES BANKRUPTCY COURT

WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

In re:

BESTWALL LLC, Chapter 11

Case No. 17-31795 (LTB)

Debtor.

ACKNOWLEDGEMENT

I, ____________________, hereby understand and agree that access to the Sales Records

Database, as such term is defined in the Agreed Order Establishing Non-Waiver and Other

Conditions for Access to and Use of the Debtor’s Electronic Sales Records Database (the “Agreed

Order”) entered by the Bankruptcy Court in the above-captioned matter, may only be provided to me

subject to the terms and conditions set forth in the Agreed Order. Capitalized terms not otherwise

defined herein have the meanings given to them in the Agreed Order.

I hereby acknowledge that I have been given a copy of and have read and understand the

Agreed Order. I agree that I will use the Sales Records Database and the information contained

therein that is not otherwise publicly available solely on the terms of the Agreed Order and only for

the purpose of carrying out the duties of the ACC or the FCR pursuant to the Bankruptcy Code in

connection with the Bankruptcy Proceeding.

I further agree to be bound by the terms of the Agreed Order and to subject myself to the

jurisdiction of the Bankruptcy Court for the enforcement of the Agreed Order and understand that, in

the event that I fail to abide by the terms of the Agreed Order, I may be subject to sanctions by

the Bankruptcy Court.

Date: Signature:

Firm: Printed Name: