U.S. District Judge Jose Linares Photo: Carmen Natale/ALM

For the second time in a month, the judge in a fraudulent-concealment case against BASF and law firm Cahill, Gordon & Reindel is hearing grumbling over his choice of discovery special master.

Lawyers for Cahill Gordon and BASF asked Chief U.S. Judge Jose Linares on Aug. 8 to select a different special master based on alleged conflicts of interest surrounding the appointment of former Supreme Court Justice Roberto Rivera-Soto. But Rivera-Soto wrote to Linares on Aug. 11 to say the issues raised do not impair his ability to serve as special master.

The dispute comes not long after plaintiffs expressed unhappiness about the $900 hourly rate of the first special master appointed by Linares, Garrett Brown Jr., former chief U.S. judge for the District of New Jersey, was too expensive. After Brown declined to serve, Rivera-Soto was appointed discovery master Aug. 3 in Williams v. BASF Catalysts. Rivera-Soto, who is with Ballard Spahr in Cherry Hill, has an hourly rate of $695.

The case is brought on behalf of plaintiffs in thousands of asbestos injury suits who claimed that Cahill Gordon and Engelhard, a predecessor of BASF, conspired to destroy evidence in those cases and that they were shortchanged on their recoveries as a result.

In the latest special master dispute, defense lawyers said Rivera-Soto’s firm, Ballard Spahr, is represented in a suit in the Philadelphia Court of Common Pleas, Ballard Spahr v. Symphony Health Solutions, by Williams & Connolly, which also represents Cahill Gordon in the present case. Therefore, Williams & Connolly has a fiduciary relationship to both Cahill Gordon and Ballard Spahr, according to a letter signed by Robert Ryan of Connell Foley, representing Cahill Gordon, and Justin Quinn of Robinson Miller, which represents BASF. In addition, before Rivera-Soto was appointed to the Supreme Court in 2004, he was with Fox Rothschild, one of the firms representing the plaintiffs in the present case, Ryan and Quinn wrote.

Those circumstances “require the court to select a different special master for the case,” the defense lawyers said.

But Rivera-Soto said in his Aug. 11 letter to Linares that he did not know that Williams & Connolly was involved in the case, and added that the issues raised in the Aug. 8 letter do not disqualify him from serving as special master in the present case. He said he is not involved in the Symphony Health Solutions case or events leading up to the case. He said he and any other Ballard Spahr lawyer assisting him with his special master duties would be segregated by an ethical ‘wall’ from lawyers in his firm’s Philadelphia office who are working on or involved with the Symphony Health Solutions case.

Rivera-Soto added that when he was on the Supreme Court, some members of the judiciary heard cases from their former law firms at the outset, while others placed a moratorium of varying lengths on hearing cases from their former firms. The longest moratorium he knew of was five years, Rivera-Soto said. “Now, 13 years later—and after six years at a competing firm—it is difficult to ascertain how my prior relationship with Fox Rothschild LLP has any relevance here,” he said.

But on Monday, defense lawyers Ryan and Quinn reasserted their protests over the appointment of Rivera-Soto in another letter to Linares. They said that Rivera-Soto’s assurances about ethical walls are used to avoid improper sharing of client information, but such measures cannot address fiduciary and conflict issues raised by Williams & Connolly’s ongoing representation of both Ballard Spahr and the Cahill defendants. Ryan and Quinn asserted that “the perception issues alone would compel appointment of a different discovery master.” They added that the perception issues are compounded by Rivera-Soto’s prior association with Fox Rothschild.

“From a practical perspective, we respectfully submit that it should be possible to appoint a Special Discovery Master who has no connections to the parties or their attorneys, and who is not personally or through his or her firm represented by attorneys in this case,” Ryan and Quinn said. They said that if Linares is inclined to proceed with Rivera-Soto, they want an opportunity for full briefing, including submissions from expert witnesses.

Rivera-Soto declined to comment on his appointment, as did Christopher Placitella of Cohen, Placitella & Roth in Red Bank, who represents the plaintiffs. Lawyers for Cahill Gordon did not return calls. A lawyer for BASF did not immediately reply to a request for comment.