Several asbestos litigation trust funds, including the W.R. Grace and Company Asbestos PI Trust; Babcock & Wilcox Company Asbestos Personal Injury Settlement Trust; Owens Corning/Fibreboard Asbestos Personal Injury Trust; Shook & Fletcher Asbestos Settlement Trust; and at least six others1, issued Notices of Destruction, advising the public that certain documents and data are scheduled to be destroyed on a rolling basis, a process that began April 15, 2025. While some notices have explained the nature of the data and documents to be destroyed, at least one of the trusts (Shook & Flecther) has admitted to not knowing what information is contained within the documents. The trusts assert that the destruction policies are being implemented to protect sensitive personal information of the claimants2. The trusts are permitting parties to download the data that has not yet been destroyed. Without backlash or repercussions to the trusts in these efforts to destroy information, we predict additional trusts will follow suit in announcing their respective intents to destroy data in the future.
Law firms have already begun submitting letters to these trusts, insisting that the proposed destruction seems “designed to avoid the production of data and documents responsive to future subpoenas” and calling for continued preservation3. After receiving notice from some of the trusts that these policies would not be reconsidered, counsel for Johnson & Johnson is among the parties that have also filed with the Chancery Court in Delaware4, seeking an injunction to the destruction5. The complaint asserts that the trusts’ actions “would permanently destroy evidence that is highly relevant to tens of thousands of known asbestos-related personal injury claims and other legal proceedings across the country” and that the trusts “concocted these new policies in violation of their obligation to preserve the highly relevant information to undermine legal precedent and numerous state trust transparency statutes.”
The trusts, borne from post-Chapter 11 bankruptcy proceedings, were established by companies to compensate victims of asbestos-related injuries6. Over $30 billion has been set aside by more than fifty trusts for this purpose7. Payouts from these asbestos trust funds range from four to seven figures, depending on many factors, including the type of exposure, the disease state, and the length of pain and suffering8. Persons alleging harm from exposure to asbestos may collect from multiple asbestos trusts.
Although compensation can be received faster through a trust payout, many victims choose also to file a lawsuit, where the payouts tend to be significantly greater9. Defense counsel in asbestos litigation matters, to the extent permitted by local court rules and statutes, rely on proofs of claims from these trusts during discovery to establish possible cross-claims or defenses that may be asserted at trial. The anticipated destruction of data and documents from the trusts will inhibit such ongoing (and future) discovery efforts as litigants may not have any other sources to obtain significant evidence necessary to establish these cross-claims and related defenses10.
On January 15, 2025, the following trusts submitted Notices of Destruction11:
- W.R. Grace and Company Asbestos PI Trust for W.R. Grace and Company, a chemical company based out of Maryland;
- Babcock & Wilcox Company Asbestos Personal Injury Settlement Trust for Babcock & Wilcox Company, a New Jersey-based energy technologies company; and
- Owens Corning/Fibreboard Asbestos Personal Injury Trust for Pittsburgh Corning, a glass block manufacturer headquartered in Pennsylvania; and Owens Corning, the world’s largest fiberglass manufacturer, originally based in Ohio.
As of April 15, 2025, the W.R. Grace and Company, Babcock & Wilcox Company, Pittsburgh Corning, and Owens Corning (collectively referred to herein as the “April Notice Trusts”) began destroying data and documents related to claimants who (1) have been issued a payment at least ten years before the date of destruction, (2) have had their claim withdrawn by counsel, or (3) have had their claim deemed withdrawn by their respective April Notice Trust.
On March 3, 2025, Shook & Fletcher, an Alabama-based insulation manufacturer, also posted a Notice of Destruction of Documents12. Documents stored at a warehouse in Robbinsville, New Jersey, will be destroyed beginning July 7, 2025. This notice indicated that there are “minimal to no indices” of what documents are contained at the warehouse. The Shook & Fletcher Trust will only entertain requests for inspection of the documents by way of subpoena submitted before July 3, 2025.
Litigants should immediately begin to reach out to the respective point of contact, noting which plaintiffs’ information is sought. Requests for copies of the data and documents from the April Notice Trusts can be submitted directly by email at DCPFRecordRetention@delcpf.com and be limited to the listed categories of data. Requests for review of documents for the Shook & Fletcher Trust must be submitted in the form of a hand-delivered subpoena to the Wilmington Trust, and must include all information regarding the origin of the subpoena, including the name of the law firm, the point of contact at the law firm, and all relevant contact information of both. Questions concerning subpoenas are to be directed to Amy Behm at (513) 579-6944 or abehm@kmklaw.com. With all the trusts, any fees arising from requesting copies of or review of documents will be the requesting party’s responsibility.
We will continue to monitor for notices from other trusts, for further information on how to collect and preserve the condemned data, and for updates concerning the Delaware Chancery Court proposed injunction.
[1] Asbestos Defendants Seek to Prevent Deletion of Claim Records, DOW JONES NEWS WIRES (originally published by WALL STREET JOURNAL) (Apr. 3, 2025); Ben Zigterman, J&J, Others Say Asbestos Trusts Can’t Purge Records, LAW360(Apr. 15, 2025 at 8:06 p.m.).
[2] Zigterman, Asbestos Trusts Can’t Purge Records, supra note 1.
[3] Asbestos Defendants Seek to Prevent Deletion of Claim Records, supra note 1.
[4] DBMP LLC v. Delaware Claims Processsing Facility LLC (2025-0404).
[5] Zigterman, Asbestos Trusts Can’t Purge Records, supra note 1.
[6] 11 U.S.C. § 524.
[8] Samuel Meirowitz, Mesothelioma and Asbestos Trust Funds, ASBESTOS.COM (last updated Mar. 4, 2025).
[10] Zigterman, Asbestos Trusts Can’t Purge Records, supra note 1.
[11] Notice of Record Destruction Pursuant to Record Retention Policy, WRG Asbestos PI Trust (Jan. 15, 2025); Notice of Record Destruction Pursuant to Record Retention Policy, BABCOCK & WILCOX COMPANY ASBESTOS PERSONAL INJURY SETTLEMENT TRUST, (Jan. 15, 2025); Notice of Record Destruction Pursuant to Record Retention Policy, OWENS CORNING/FIBREBOARD ASBESTOS PERSONAL INJURY TRUST (Jan. 15, 2025).
[12] Shook & Fletcher Asbestos Settlement Trust Notice of Destruction of Documents (Mar. 3, 2025).
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