1 441n911n 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 IN RE: 4 SEPTEMBER 11 LITIGATION 21 MC 97 (AKH) 5 ------------------------------x 5 6 New York, N.Y. 6 April 1, 2004 7 10:45 a.m. 7 8 Before: 8 9 HON. ALVIN K. HELLERSTEIN, 9 10 District Judge 10 11 APPEARANCES 11 12 KREINDLER & KREINDLER 12 Attorneys for Plaintiffs 13 BY: MARC S. MOLLER 13 BRIAN J. ALEXANDER 14 DENNIS J. NOLAN 14 JAMES P. KREINDLER 15 15 BAUMEISTER & SAMUELS, P.C. 16 Attorneys for Plaintiffs 16 BY: MITCHELL F. BAUMEISTER 17 ZIMBLE & BRETTLER, LLP 17 Attorneys for Plaintiff Peters 18 BY: CHARLES CAPACE 18 ANTON REINERT 19 19 MOTLEY, RICE, LLC 20 Attorneys for Plaintiffs 20 BY: DONALD MIGLIORI 21 21 UNITED STATES ATTORNEY'S OFFICE 22 BY: BETH E. GOLDMAN, AUSA 22 SARAH NORMAND, AUSA 23 23 CONDON & FORSYTH 24 Attorneys for Defendant American Airlines 24 BY: DESMOND T. BARRY 25 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 441n911n 1 APPEARANCES (Continued) 2 DEBEVOISE & PLIMPTON 2 Attorneys for Defendant American Airlines 3 BY: ROGER E. PODESTA 3 4 FLEMMING, ZULACK & WILLIAMSON 4 Attorneys for Defendant 5 The Port Authority, et al. 5 BY: RICHARD A. WILLIAMSON 6 BRADFORD STEIN 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 441n911n 1 THE COURT: Good morning. 2 As usual, I've distributed an agenda which was 3 prepared with the substantial assistance of Mr. Moller and Mr. 4 Barry and all their respective colleagues. 5 Mr. Moller, I am going to call upon you to go down the 6 items on the agenda and see where we are in the respective 7 points. 8 Why don't you take the podium, Mr. Moller. 9 MR. MOLLER: Good morning, your Honor. 10 If it's all right with the court, Mr. Alexander can 11 discuss the status of the pleadings since he accepted 12 responsibility for it. 13 THE COURT: Yes. Good morning, Mr. Alexander. 14 MR. ALEXANDER: Good morning, your Honor. 15 Your Honor, with respect to the status, as you are 16 probably already aware, we have filed five master, amended 17 master complaints. Some are second amended, one is a third 18 amended, but there are five of them. That includes the 19 property master complaint. They were filed yesterday. We've 20 delivered courtesy copies to chambers. 21 The second is the appendices. Those were attached to 22 each of the respective master complaints. They are our best 23 information in terms of the active cases that relate to, the 24 active individual cases that relate to each of the master 25 complaints that were filed out of the four flights, two of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 441n911n 1 which include the ground victims of Flights 11 and 175. The 2 other is for the property plaintiffs as well. 3 Lastly, your Honor, we have -- again, this last item 4 is not an executive committee function, but it is my 5 understanding that all plaintiffs were aware of the deadline 6 yesterday and have consolidated and amended all of the 7 respective complaints that involved either multiple plaintiffs 8 who had the same individual decedent or multiple complaints 9 filed by an individual plaintiff. 10 That process has been completed. Those complaints 11 were filed yesterday with the court as well. 12 THE COURT: When would I look to the closing of the 13 issues raised by the pleadings, namely, the filing of answers? 14 Can you hear me in the back? 15 MR. ALEXANDER: As I understand the present case 16 management order, the time for service of answers of the 17 individual complaints was extended I believe in the original 18 October 24 order of the court to May 15, 2004. 19 THE COURT: All right. 20 Those defendants who are here, and Mr. Barry can pass 21 the word, I would rather not entertain motions to enlarge time. 22 It just gets too complicated. Could you pass the word that 23 every effort should be made to comply with that date so we can 24 move ahead? 25 MR. BARRY: Absolutely, your Honor. Will do. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 441n911n 1 THE COURT: That brings us down to the Mariani case. 2 Do you want to report on that, or do we have the attorneys 3 here? 4 MR. ALEXANDER: I did receive a phone call from 5 Mr. Berg last night that expressed some concern about the 6 combination of that individual action. I was not aware of how 7 they dealt with that. 8 THE COURT: Thank you, Mr. Alexander. 9 MR. ALEXANDER: Thank you, your Honor. 10 MR. BERG: Good morning, your Honor. Philip berg. I 11 represent Ellen Mariani the adminstratrix of the estate of 12 Louis Neil Mariani. 13 THE COURT: Go ahead, Mr. Berg. 14 MR. BERG: I wasn't aware -- I've never been 15 officially notified, your Honor, that there is another matter 16 that has been filed on behalf of Lauren Peters, the daughter of 17 Louis Neil Mariani. 18 My client's position is that since she was named as 19 the adminstratrix of the estate in New Hampshire, she is the 20 rightful party to be proceeding in these matters. There is a 21 matter pending in New Hampshire at the present time 22 regarding -- Lauren Peters has filed an action against her 23 stepmother. That matter is proceeding. 24 THE COURT: Is that before a judge in the New 25 Hampshire courts? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 441n911n 1 MR. BERG: Yes, your Honor. 2 THE COURT: May I know the name of the judge? 3 MR. BERG: I don't have that with me, your Honor. 4 THE COURT: Would you write to me and give me the name 5 of the judge. 6 MR. BERG: Yes, your Honor. 7 THE COURT: What claim of right does the 8 representative have in the Peters case? 9 MR. BERG: She's the daughter of the deceased, Louis 10 Neil Mariani. 11 THE COURT: Has she been appointed in any fashion? 12 MR. BERG: No. 13 I'm sorry, your Honor. The only surviving parties to 14 this would be -- there was no will. There was the wife, which 15 is Ellen Mariani, and the daughter, Lauren Peters. I'm not 16 sure if she's represented here today. 17 MR. CAPACE: She is, your Honor. I represent Lauren 18 Peters. 19 THE COURT: Sir, please come up. 20 If you don't mind sharing a podium with Mr. Berg. 21 MR. CAPACE: I don't mind at all. 22 THE COURT: Your name is, sir? 23 MR. CAPACE: Charles Capace. 24 THE COURT: You represent Ms. Peters? 25 MR. CAPACE: Yes, your Honor, I am. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 441n911n 1 THE COURT: What is her claim of right? 2 MR. CAPACE: Her claim of right is she is challenging 3 the adminstratrixship. She is challenging Ms. Mariani as to 4 who would be the adminstratrix of the estate. That is the 5 proceeding Mr. Berg made reference to that is taking place in 6 New Hampshire I believe in May. 7 As you might imagine, the stepmother, Ms. Mariani and 8 Lauren Peters are not the best of friends. 9 THE COURT: Who is the judge in New Hampshire? 10 MR. CAPACE: It is being handled by a New Hampshire 11 law firm. I can get you the information, your Honor, but I 12 don't have it off the top of my head. 13 THE COURT: Can you and Mr. Berg combine a letter that 14 would state the facts plainly and clearly? 15 MR. CAPACE: Yes. 16 THE COURT: I would think that it should not make a 17 difference to you how this matter is handled here because what 18 should happen, assuming there has been no filing with the 19 Victim Compensation Fund, which would present another 20 wrinkle -- 21 MR. BERG: We have not filed. 22 MR. CAPACE: Nor have we. We filed the lawsuit here 23 only. 24 THE COURT: OK. So both or one of these cases will be 25 subsumed by the consolidated plaintiffs. If you could work out SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 441n911n 1 a satisfactory procedure by which you will be notified and 2 combine it with any instructions to Mr. Moller and his 3 colleagues, we can accommodate you and wait until the New 4 Hampshire judge settles the matter. If, however, some problems 5 arise, I will have to intervene. 6 I would prefer not to intervene. I would prefer to 7 allow the processes of the New Hampshire court to work 8 themselves out in a proper fashion. I suspect you do as well. 9 So, as long as there is no problem presented with the 10 plaintiffs' steering committee, we can wait. If there is a 11 problem, we may have some difficulty. 12 MR. CAPACE: I am informed my New Hampshire counsel, 13 your Honor, that under their law that an adminstratrix or a 14 putative one such as Ms. Lauren Peters has independent standing 15 under the statute of New Hampshire. I have not independently 16 researched that. But that may present an additional wrinkle. 17 That will all be resolved by the New Hampshire judge at some 18 point in time. 19 THE COURT: The practical point is how Mr. Moller and 20 his colleagues carry on this litigation. They can't stop the 21 litigation to allow both of you and your correspondents to 22 settle it out. 23 So what I suspect is the best way to do that is if you 24 would combine in a way that allows Mr. Moller and his 25 colleagues to carry on without being concerned about what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 441n911n 1 happens, you can then litigate the matter in the New Hampshire 2 state court. Eventually one of you will be appointed or 3 someone will. 4 In the meantime, the case can be carried on. If you 5 can't combine that way, I will do something by reason of my 6 powers as a federal judge. 7 MR. BERG: Your Honor, I don't think there would be a 8 problem because our interest is with all -- I believe our 9 interest, at least on Ellen Mariani's behalf, is that this case 10 move forward. 11 THE COURT: Right. I think Ms. Peters would feel the 12 same. 13 MR. CAPACE: She does. 14 MR. BERG: For the record, what happened originally 15 was Lauren Peters originally agreed to allow her mother -- 16 THE COURT: I don't need that. 17 MR. BERG: OK, your Honor. 18 THE COURT: Both of you register with Mr. Moller so he 19 knows how to deal with you. 20 MR. CAPACE: I already have contacted Mr. Moller. 21 THE COURT: Mr. Moller will know what happens in New 22 Hampshire, and I guess by May perhaps it should settle out. 23 MR. CAPACE: I think so. 24 THE COURT: Thank you. 25 MR. BERG: I believe it's in June. But we'll let you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 441n911n 1 know. 2 THE COURT: Write me or give a copy of your letter to 3 Mr. Moller. 4 MR. BERG: I will. Thank you, your Honor. 5 THE COURT: We are down to item No. 2 on the agenda. 6 We're finished with No. 1? 7 MR. MOLLER: I think so. 8 Service of individual complaints and amended 9 complaints is proceeding. We are serving attorneys with the 10 amended complaints. There are one or two cases where there has 11 been no appearance yet, and I presume that we'll either wait 12 for an appearance or serve the individual defendant with 13 process. 14 THE COURT: Mr. Barry, are you receiving notices from 15 the defendants who have been served? 16 MR. BARRY: I haven't been, your Honor. 17 THE COURT: For the airlines? 18 MR. BARRY: No. 19 THE COURT: I have been receiving orders dropping 20 various defendants who have not been served. I guess we will 21 sort this out at the next conference, and we'll have a better 22 idea who has been served and who has not by way of appearances 23 and proofs that have been filed with the clerk's office. 24 MR. MOLLER: Agreed. 25 MR. ALEXANDER: Your Honor, if I might, I think the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 441n911n 1 concern is in the individual cases. I am not certain that 2 anyone has appeared technically in the individual cases or 3 answered and your Honor extended the time by agreement of 4 everyone out until past this time for the amended complaints to 5 be filed. 6 Normally, as you know, under Rule 5 you serve the 7 amended complaints on counsel that's appeared or answered in 8 the case. Here, even though there's appearance by almost all 9 counsel, if not all counsel, with respect to the master 10 complaints and answers, on the individual level, I'm not 11 certain if that's the case. What we did collectively was to 12 file. We stuck with Rule 5, we filed a certificate of service 13 and by mail on counsel, and where there was no counsel, we -- 14 THE COURT: I don't have my rule book with me. What's 15 the difference in effect? 16 MR. ALEXANDER: The alternative would be, if no one is 17 in the case, you can make an argument that you ought to do it 18 by Rule 4 summons. 19 I think this is a unique circumstance, but it's 20 abnormal that it would be in this late in the game amending and 21 having still extend the time for the initial original 22 complaints to be answered. That's the predicament we find 23 ourselves in. 24 So we have complied with Rule 5 for the moment, and we 25 all issued certificates of service relative to the amendments SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 441n911n 1 that were recently filed. I know there was a problem from the 2 defense standpoint, but Mr. Barry can't speak for every 3 defendant on this point. I think it only involves one or two 4 of the defendants who have not appeared and are not represented 5 by counsel, and with respect to those we have served it on the 6 corporate addresses for the respective defendant. 7 THE COURT: I've done something untraditional in 8 hastening the consolidated complaint and the joinder of 9 consolidated issues before all services on the individual 10 levels have been perfected. 11 I've done that because I think there was a public 12 interest in moving the case forward. And I think it's, 13 therefore, justified. But we need to keep attentive to what is 14 going on in the individual services, and I think at the next 15 session both you and Mr. Barry should be in a better position 16 to report on that so we can take whatever steps are necessary 17 to clean up the effects. 18 MR. ALEXANDER: We will work that out. I don't think 19 it is going to be a problem. 20 The last point on that is with respect to the foreign 21 defendants, which has been previously brought to your Honor's 22 attention. They too have fallen out of category where, were it 23 necessary to serve them in some other way with these amended 24 complaints, we plan to do it the same way, which is by regular 25 mail. But if there is a problem with the defendants there, we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 441n911n 1 will bring it to your Honor's attention and raise it at that 2 point. 3 THE COURT: All right. The motions they would have to 4 make would be in relationship to the services of the summons 5 and complaint -- 6 MR. ALEXANDER: That's correct. 7 THE COURT: -- under the alternative to the Hague 8 convention or under the Hague convention. We talked about that 9 at the last session. 10 MR. ALEXANDER: Correct, your Honor. 11 THE COURT: I think you are justified in serving under 12 Rule 5 on the assumption that the attorney is in the case, or 13 the party is in the case. If the party is not in the case, 14 we'll deal with it when the motion comes. 15 MR. ALEXANDER: Very well, your Honor. 16 Lastly, I can report, at least for our cases, that 17 Hague service has been perfected at least as to the English 18 company, Secure Core, in our case. We'll report as soon as 19 it's complete for all plaintiffs to the court on the Hague 20 service question. 21 THE COURT: Thank you. 22 Going back to Mr. Capace and Mr. Berg, you'll give me 23 the name of the cases in the New Hampshire probate court and 24 the name of the Judge, please. 25 MR. CAPACE: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 441n911n 1 MR. MOLLER: Just as a footnote, the master complaints 2 subsume all of the defendants in the individual actions, so 3 everybody knows that they're engaged in the lawsuit. 4 THE COURT: Yes. 5 MR. MOLLER: Service is not a formality, but it is a 6 detail. 7 THE COURT: It is a detail, but it is a necessary 8 detail. 9 MR. MOLLER: Right. 10 THE COURT: Which, if not accomplished, can complicate 11 matters as we go along. 12 MR. MOLLER: We agree. 13 THE COURT: So I will need to be attentive to that 14 problem at the next session. 15 MR. MOLLER: OK. 16 THE COURT: Mr. Berg, another word? 17 MR. BERG: I have the name of the court, but I don't 18 have the judge. I can give you that. 19 THE COURT: Would you, please. 20 MR. BERG: Your Honor, it's the estate of Louis Neil 21 Mariani Rockingham Probate Court in Brentwood, New Hampshire, 22 docket No. 2002-0051. 23 THE COURT: Thank you. 24 MR. BERG: You're welcome, your Honor. 25 MR. MOLLER: Before we move to item 2, I would like SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 441n911n 1 the record to reflect that the plaintiffs' appreciation to 2 Mr. Barry and his staff for putting together the statistics and 3 assisting us in getting a handle on who is in the case and 4 who's out. He sometimes gets word of these things before we do 5 and his list is both helpful to the court and helpful to the 6 plaintiffs. 7 THE COURT: Yes. Thank you, Mr. Barry. 8 I'm glad to be reminded of it. I know how hard it is 9 because we've made a very strong effort to compile the 10 information from the special master's office. It is very, very 11 difficult. We were fortunate to have an intern who helped 12 considerably. I know how hard it is for you, Mr. Barry. 13 MR. BARRY: Thank you, your Honor. 14 MR. MOLLER: With respect to item 2 on the agenda, 15 Mr. Williamson and I have agreed to -- there was a flurry of 16 correspondence at the end of the week and the beginning of this 17 about the schedule for briefing on the various motions to 18 dismiss that Mr. Williamson and some of the other defendants 19 contemplate. 20 The plaintiffs in effect have agreed to accelerate the 21 process to April 16 for the plaintiffs' obligation to produce 22 documents. The intent is to allow the motion practice to be 23 concluded before the Victims Compensation Fund shuts down, so 24 that if there is an opportunity to go back into the fund should 25 they for some reason find themselves disappointed in this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 441n911n 1 court, they have a resolution before the fund is out of 2 business. 3 THE COURT: Have we set a date for argument? 4 MR. MOLLER: There is no date for argument. 5 There was a date in the letter that Mr. Williamson 6 originally served and that your Honor ordered or so ordered 7 which I believe was June 7 for the final submission, and now 8 we've moved that up by about eight days. 9 MR. WILLIAMSON: Actually, it was June 14, and we 10 moved everything up at plaintiffs' request and with defendants' 11 consent by seven days. So the prior so ordered letter provided 12 reply papers will be served by June 14, and now it will be June 13 7. 14 Pursuant to agreement with Mr. Moller, I would propose 15 to simply do another letter with the new dates so that your 16 Honor will have a record of all of that. As to oral argument, 17 no, the letter did not provide for that because we had thought 18 we would wait and see if your Honor wanted oral argument. 19 THE COURT: I prefer it. 20 When is Mr. Feinberg closing shop? 21 MR. MOLLER: June 15. I was with Mr. Feinberg 22 yesterday. 23 THE COURT: June 15? 24 MR. MOLLER: I was told that after June 15 the only 25 thing the fund is going to be doing is sending out checks and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 441n911n 1 doing some closing paperwork. Award letters will have been 2 issued by the 15th of June. 3 That was the reason for my concern. I got a little 4 bit behind the curve. I didn't see the so ordered letter. I 5 thought that my communicating to the court earlier this week 6 was still adequate, but Mr. Williamson and I have resolved the 7 problem over the last 24 hours. 8 MR. WILLIAMSON: June 7, your Honor, is a Monday. So, 9 depending on what you would like, we could presumably have oral 10 argument that week. If, as Mr. Moller says, any of the 11 plaintiffs were to be disappointed, they would still be able to 12 get back into the fund. 13 THE COURT: We'll hear argument on June 9 at 3:00. 14 MR. WILLIAMSON: June 9 at 3:00. So is it acceptable 15 then that I would do another letter and simply have the new 16 dates and add that? 17 THE COURT: I don't think you need a letter. 18 MR. WILLIAMSON: OK. 19 THE COURT: It's ordered now. You have your schedule. 20 June 9 at 3:00 will be the time for argument. 21 MR. MOLLER: Fine. 22 MR. WILLIAMSON: OK. 23 And if I could move to 2b. That is an item that 24 Mr. Barry I think has to address. 25 THE COURT: For those who are present and want to know SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 441n911n 1 what's going on here, the law, the Air Transportation System 2 and Stabilization Act provides that the victims have a choice 3 of forum. They can go into the Victim Compensation Fund and 4 apply to the special master for a recovery without having to 5 prove anything other than their being a victim in the 6 circumstance of the areas specified by Congress, and they prove 7 the value set out in the law and in the regulations and they 8 become entitled to an award from the special master. 9 Or they can use a traditional method of a lawsuit. 10 But they can't do both. And the law provides in a certain 11 technical way that I don't want to get into now that you can 12 commit a waiver. If you come into the Victim Compensation 13 Fund, you waive your right to sue. 14 The defendants are interested in challenging the right 15 of people who came into the Victim Compensation Fund and also 16 entered a lawsuit. There's rather a complicated history. The 17 time to sue under New York State law was shorter than the time 18 given by Congress to apply to the Victim Compensation Fund. 19 So, upon application to me and with the consent of the special 20 master, we've provided a procedure by which cases could be 21 filed and immediately put on suspense and yet preserve the 22 right to go into the Victim Compensation Fund. 23 That was because there was a state cutoff under the 24 statute of limitations applicable to the Port Authority and to 25 the city that was shorter than the time allotted by Congress. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 441n911n 1 The time allotted by Congress, if I remember correctly, was 2 December 22, 2003. 3 So, by filing the lawsuit, claimants were able to 4 preserve their right to sue and still remain eligible to apply 5 to the Victim Compensation Fund. 6 But if they thereafter went into the Victim 7 Compensation Fund, and I don't want to go into the detail of 8 just how much they could go in or at all, there's a chance they 9 may have waived their right to sue. That's going to be the 10 subject of the litigation that will be brought on chiefly by 11 Mr. Williamson. That will be heard, as I say, on June 9. 12 MR. NOLAN: Your Honor, on whose behalf is 13 Mr. Williamson making the motion? 14 THE COURT: The Port Authority's behalf. Right, 15 Mr. Williamson? 16 MR. WILLIAMSON: Yes. 17 On behalf of the Port Authority and/or World Trade 18 Center Properties in any of the 11 actions designated by your 19 Honor in which our firm represents one of more of those 20 defendants. 21 THE COURT: Other defendants may also wish to bring 22 the motion. 23 MR. NOLAN: Thank you, your Honor. 24 MR. WILLIAMSON: As your Honor had requested at the 25 last conference, we are coordinating with all the other SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 441n911n 1 defendants, so hopefully there can be one master brief. To the 2 extent any other defendant needs with respect to a particular 3 case to submit a particularized affidavit, we will coordinate 4 that. 5 THE COURT: That's very important, because I am 6 setting this date on very short notice to me. We're not going 7 to have too much time to study the matter, so we'll have to 8 study the issues very intensively. But I want to make my 9 ruling so that if there is a chance that any claimant can 10 preserve at least one of its two options, they'll be able to do 11 it. 12 That's why I want to rule before the Victim 13 Compensation Fund closes down. 14 That's why I'm setting June 9 as the date in light, of 15 the information given to me that the Victim Compensation Fund 16 will close on June 15. 17 Sir? 18 MR. MIGLIORI: Don Migliori for Motley Rice. 19 As your Honor, as the court is aware, with the 20 exception of the Flight 93 claims that involve the Port 21 Authority, the Port Authority is not a defendant in our 22 actions. 23 One of the requests in Mr. Moller's letter to the 24 court of a few days ago was that in the request for production 25 of documents that's been submitted by Mr. Williamson, that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 441n911n 1 defendants who are moving in each case identify which 2 defendants are moving. That is, we have every intention of 3 complying before the deadline with the request to produce. We 4 would just like to know, given that we are not in the Port 5 Authority cases which defendants are moving for the production 6 and ultimately for the motion to dismiss in our cases. 7 THE COURT: Mr. Williamson or Mr. Barry, are you able 8 to answer that? 9 MR. WILLIAMSON: Yes, I can speak to that. 10 Your Honor specifically asked me at the last 11 conference to serve a request that would encompass the request 12 of any and all defendants in all of the eleven cases so there 13 wouldn't be 10 or 20 or 30 requests. 14 I did that. The document request that was served 15 covered all defendants. It was submitted in draft to all 16 defendants. 17 THE COURT: When is the last date that defendants can 18 move? 19 MR. WILLIAMSON: The last date that defendants can 20 move under the new schedule is now up to May 17. They have 21 that time to await the production of the documents, evaluate 22 it, get their papers ready and submit them. 23 THE COURT: That will be the time you'll find out. 24 MR. MIGLIORI: OK. 25 MR. WILLIAMSON: Exactly. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 441n911n 1 I think it can be presumed obviously that any 2 defendant as to whom the motion lies will make it. 3 THE COURT: That's their choice. 4 MR. WILLIAMSON: Exactly. But the request was for 5 everybody so there wouldn't be multiple ones, as your Honor 6 directed. 7 THE COURT: Thank you. Anybody wish to add? 8 Mr. Barry, anything to add to that? 9 MR. BARRY: No, your Honor. That was my 10 understanding, in any event, that the defendants would join in 11 whatever motions they wanted to at that time. 12 MR. NOLAN: Your Honor, Ken Nolan for the plaintiffs' 13 steering committee. My concern, quite frankly, is whatever 14 ruling is on June 9 may be too late for the fund. 15 THE COURT: What do you suggest? 16 MR. NOLAN: I suggest that they decide who's making 17 the motions well before May 17 so educated people can make 18 educated decisions. 19 THE COURT: It seems to me they need to look at the 20 discovery before they make up their minds. That's the schedule 21 I've set. I think you'll know on May 17 or May 18, and that's 22 time enough. 23 MR. NOLAN: Thank you, your Honor. 24 THE COURT: We're down to 2b. 25 MR. BARRY: 2b, your Honor, I will address briefly. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 441n911n 1 Pursuant to your order, counsel for the plaintiffs in 2 the three German cases, which are in the nature of subrogation, 3 is obligated to provide us with a letter tomorrow indicating 4 the basis upon which they are seeking the damages that they are 5 and giving us basic information on who these governmental 6 entities are. 7 So we haven't -- 8 THE COURT: Let me just give a perspective on this. 9 I'm doing this because there's an interest in the public to 10 have as much information as is available on these cases. I 11 know there's members of the press here. So you are the way 12 that this information is conveyed to the public. 13 There are -- what is it? Three? 14 MR. BARRY: Three. 15 THE COURT: Three claimants who went into the Victim 16 Compensation Fund and obtained awards. Under German law 17 apparently, and I don't know too much about this, insurance 18 companies have an ability, or so they say, in response to 19 payments they make to stand in the shoes of these claimants. 20 Exercising this right under what we're told is German law, they 21 claim to have the right to sue, even though the Air 22 Transportation System Safety and System Stabilization Act 23 provides that there must be a choice. 24 This development requires me to understand the claim 25 of right of the German insurance carriers and to evaluate that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 441n911n 1 claim of right as against the requirements of the American law. 2 So I provided at the last session that the German insurance 3 companies detail their contentions in a document they have to 4 file tomorrow. 5 Based on that document, Mr. Barry and his colleagues 6 will be in a position to evaluate the nature of the claim and 7 determine whether or not they wish to move against it under the 8 waiver provision that I just mentioned before in the Air 9 Transportation Safety and System Stabilization Act. That's the 10 issue that we are talking about now. 11 MR. BARRY: Yes, your Honor. 12 My intent is upon, review of the documents that 13 Mr. McCallahan provides tomorrow, based on what it is, I would 14 assume that, after conferring with some of the defense counsel 15 who have some experience with these similar type claims under 16 German law, we will set up some sort of a briefing and maybe 17 discovery schedule along the lines of what Mr. Williamson and 18 Mr. Moller have agreed to in those other cases. But we 19 certainly don't have the sense of urgency in these German cases 20 that we do in those. So at some point we will agree on some 21 sort of schedule and proceed. 22 THE COURT: And present it to me. 23 MR. BARRY: Thank you. 24 THE COURT: All right. Mr. Moller? 25 MR. MOLLER: Your Honor -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 441n911n 1 THE COURT: Actually I should call on Mr. Barry for 2 item 2c. 3 MR. BARRY: C? 4 THE COURT: You don't have a 2c. This is only for me. 5 What I want to do is find out if there are any other 6 claims to the VCF that we should endeavor to review and 7 evaluate. 8 MR. BARRY: Yes, your Honor. Our review indicates 9 that there may be some additional claims. Facially at least, 10 based on our review of what we've been able to obtain from the 11 VCF and comparing it with litigation, we've come up with 12 approximately 25 additional cases which may be duplicate 13 filings. 14 My associate, Ms. Heyer has prepared -- I've discussed 15 this with Mr. Alexander and said we're going to submit the list 16 to Ms. Lake and work with her or in whatever way we can to try 17 and see which category as set forth in your March 18 order 18 these additional cases might fall into. 19 There may be administrative errors or whatever. We 20 just don't know at this stage. But facially I think we have 21 some issues. 22 THE COURT: We'll try to deal with it by the next 23 session. 24 MR. BARRY: Yes, sir. 25 THE COURT: Actually, if rights are affected in terms SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 441n911n 1 of -- I shouldn't think this affects anyone's ability to obtain 2 money from the Victim Compensation Fund, because these all deal 3 with people who have already been in that process. 4 MR. BARRY: Well, we don't know. But it could be 5 similar to the cases that are governed by your March 18 order 6 in different categories. 7 So we're going to have to move quickly on that, 8 bearing in mind the concern of the plaintiffs that, you know, 9 they have got a deadline of June 15 approaching. 10 So I know Ms. Heyer is prepared to work with Ms. Lake 11 and Mr. Alexander to try and get to the bottom of it. 12 THE COURT: Thank you. 13 Mr. Williamson and then Mr. Migliori. 14 MR. WILLIAMSON: If I may, your Honor, I think it does 15 potentially impact, Ms. Falk has given Ms. Heyer our list of 16 additional plaintiffs with active cases that we believe and 17 have reason to believe filed with the VCF. So I think that to 18 the extent we might be able to prevail on a motion to dismiss 19 such lawsuits on the same grounds as we just discussed, 20 theoretically those people might well want to get back into the 21 fund before the 15th of June. 22 THE COURT: I'll deal with this as we go along. You 23 will be making your motion based on the best information that 24 you have and it will shake out. 25 Mr. Migliori? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 441n911n 1 MR. MIGLIORI: Your Honor, I think we've handled this, 2 and I don't want to belabor it, but presently I have two cases 3 that are subject to motions to dismiss based on the court's 4 March 18 order. If there are 25 cases that may also be subject 5 to that same kind of process, it's even more reason, as 6 Mr. Nolan points out, that we learn at least what cases they 7 are as soon as possible so that we can at least have a dual 8 track in preparing -- 9 THE COURT: I think Mr. Moller is current on all the 10 findings that Ms. Heyer and Ms. Falk are developing. 11 MR. ALEXANDER: Your Honor, on that, we're 12 anticipating receiving that letter today. We haven't been 13 advised what cases they are. We'll pass it along to all 14 plaintiffs. Then we'll go about trying to determine whether it 15 is a glitch or -- we have had cases appear in two spots before. 16 We'll work that out. We have not been provided the list yet. 17 As soon as we are, we will provide it to them. 18 THE COURT: This is a very difficult and dynamic 19 process because people leave different records as they go 20 along. There are different administrators, sometimes there are 21 two or three administrators, there are different members of the 22 family. There's been extraordinary pressure on the special 23 master to move this along, and it's a little short of 24 incredible how much progress has been made in so short a time. 25 Not enough credit will ever go to Mr. Feinberg for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 441n911n 1 extraordinary job that he's done, but one consequence of that 2 is that records don't always match. This has been the dynamic 3 of what has been going on. I think you need to invest yourself 4 into this process, and I know that you will have complete 5 cooperation. 6 MR. MIGLIORI: The cooperation has been exceptional to 7 this point with the amended complaints in and all that. In no 8 way is this a criticism. 9 My concern, I have 54 cases before this court. If 10 there are 25 that potentially have a problem, the defendants 11 will have our discovery, which is going to be a fairly limited 12 amount of discovery. It's just going to be papers that are 13 filed, in many instances one sheet of paper filed with the VCF. 14 They will have 30 days to review that from when we produce it 15 on April 16 and then until the 17th to decide. 16 If there is some way to at least have identification 17 that defendants intend to sue sooner so we know can potentially 18 have 27 cases that we have -- 19 THE COURT: Mr. Migliori, it is a wonderful request, 20 but all you will know is they will send a notice that will list 21 everybody. Then, when the motion comes, you'll get the real 22 identification. You're not going to accomplish anything. 23 MR. MIGLIORI: OK. Thank you. 24 THE COURT: I think it takes time to evaluate what you 25 want to do. This is not an easy process. It's not going to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 441n911n 1 driven entirely by I think legal considerations. All you'll do 2 by requiring a shortening of notice is become more inclusive. 3 I don't think that serves anyone's needs. 4 All right. We are down to No. 3, status of liability 5 discovery. 6 Mr. Moller? 7 MR. MOLLER: Your Honor, in all candor, the status of 8 liability discovery on the agenda is what concerns me the most. 9 We have submitted, with Mr. Barry's agreement, a 10 proposed confidentiality order, and I presume that it's -- 11 THE COURT: Let me give the context of this. In every 12 lawsuit, once pleadings close, and often before pleadings 13 close, the parties move into discovery. 14 Allegations and pleadings are general. In order to 15 prove a case, you have to get into the real material. The real 16 material of this case has to do with what is alleged. What is 17 alleged are concerns by the plaintiffs as to various inspection 18 modes in the airports, in the airplanes, various designs and 19 other kinds of activities in the Port Authority buildings, 20 perhaps in the Pentagon, various aspects of the airplane 21 manufacturers and the like. 22 The Transportation Security Administration is an 23 organization that was created, I know it's been around for a 24 long time, but it's been invested by Congress with the 25 obligation to review all the materials before they can be made SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 441n911n 1 public because of concern that secret information would be let 2 out. 3 One may ask, how could anything arising from the time 4 of September 11, 2001, three years ago and earlier still be 5 secret? But it can. Just a very quick thought will make you 6 understand that. 7 What we did at the time affects what we do now. The 8 screening methodology and all other aspects that were in effect 9 at the time may be the same, may be enhanced, may be modified, 10 but it will be very informative of what we have now. So 11 therefore the Transportation Security Administration is very 12 sensitive to all these issues. 13 Ms. Goldman will correct me if I state this 14 improperly. It is charged by Congress with the obligation to 15 review everything and make determinations as to what may or may 16 not be publicized under various modes of publication and under 17 various other procedures that are involved by way of redaction, 18 or covering over the information that is considered secret or 19 substituting a summary for the actual wording and other 20 measures as well. 21 So this is a process that has been going on by the 22 Transportation Security Administration. It is a very difficult 23 process. Anyone who is a plaintiff who wants to move into the 24 real facts of the case has to become patient with this process. 25 It's just inevitable. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 441n911n 1 The law provides that the Transportation Security 2 Administration is charged with coming to a determination. Once 3 it makes its final determination, appeal from that goes not to 4 me, but to a court of appeals, either in the District of 5 Columbia or to a court an appeals where an aggrieved party 6 lives or does business. 7 So this is a very difficult and technical process. 8 We've tried to develop some methodologies that may make this 9 possibly more practical and more responsive. We don't know how 10 that will come out. 11 Mr. Moller? 12 Ms. Goldman, have I misstated anything? 13 MS. GOLDMAN: No, your Honor. 14 THE COURT: Thank you. 15 MR. MOLLER: But you put your finger on the pulse, as 16 usual, and that is that we can't get started as plaintiffs 17 proving up our case with the defendants' materials until we 18 have access to them. Mr. Barry and I just before this hearing 19 agreed that as soon as the confidentiality order is signed and 20 made available to us -- 21 THE COURT: I've signed it. 22 MR. BARRY: Yesterday. 23 MR. MOLLER: OK. We will expect as plaintiffs the 24 receipt of the materials that are not subject to SSI by the 25 12th of April. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 441n911n 1 THE COURT: SSI is sensitive security information. It 2 is a word of art in the law. 3 MR. MOLLER: And Mr. Barry and I will within a few 4 days thereafter, after the plaintiffs' committee has an 5 opportunity to review those materials, even cursorily embark 6 upon trying to develop a discovery schedule to the extent that 7 we can proceed on the basis of what we have. 8 The more significant problem is, as the court knows, 9 is the insulation of the SSI materials from review by us. I 10 have been in touch with Ms. Goldman and Ms. Norman about that, 11 and I know that they are working diligently to try to find a 12 solution and get us some materials, but understandably our 13 patience is wearing thin. We want to get started. 14 Also, to the extent that we intend to mount a 15 challenge in the Second Circuit should the TSA not allow us 16 reasonable access to materials, even though 14 members of the 17 committee have gotten security clearance already, we need a 18 determination in order to be able to appeal. So I would like 19 to get something today by way of a deadline if the court is -- 20 THE COURT: We have imposed a schedule. 21 MR. MOLLER: No. We need a determination, a formal 22 determination from TSA. 23 THE COURT: That's supposed to be issued by April 30? 24 Right. 25 MR. BARRY: That's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 441n911n 1 MR. MOLLER: I trust that's going to happen then. 2 THE COURT: There are various procedures that may be 3 available by way of informal evaluation. 4 Ms. Goldman, do you want to speak to these issues? 5 MS. GOLDMAN: Certainly. 6 The plan is -- 7 THE COURT: Why don't you come up to the mike. 8 It will be easier. 9 Ms. Goldman is an assistant United States Attorney. 10 She and Sarah Norman lead the representation of the United 11 States and of the Transportation Security Administration. 12 MS. GOLDMAN: Thank you, your Honor. 13 Just a quick review since the last conference in this 14 matter on what has happened from the perspective of the 15 first-wave documents. 16 Following the conference TSA completed its review of 17 the first -- 18 THE COURT: Mr. Moller. You can be seated. 19 MS. GOLDMAN: -- of the first-wave documents and, in 20 letters of February 13 and February 20, informed the defendants 21 of which documents could be released and provided redacted 22 versions of those documents that could be released in that 23 form. 24 Those are the documents I believe that Mr. Moller was 25 describing as the documents that they still have not yet SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 441n911n 1 received but will be receiving by April 12 from the defendants 2 now that there is a confidentiality order in place. 3 After that process, we had a meeting, a 4 meet-and-confer-like meeting with plaintiffs' and defendants' 5 liaison counsel. 6 Subsequent to that meeting Mr. Moller sent a letter to 7 TSA identifying some of the issues that he was looking for 8 information or substitutes for SSI material from TSA. 9 Since that date, TSA has been actively working on 10 trying to find substitutes to provide that are responsive to 11 Mr. Moller's request. We have indicated to Mr. Moller that, 12 the more specificity we get, the easier it may be for TSA to 13 provide those disputes, but TSA is nonetheless continuing the 14 process and in fact is hopeful that it will have at least some 15 substitutes to provide as early as next week. But it will not 16 be finished with the process by next week. 17 It is going to keep working on it. The plan 18 originally was -- the schedule was moved out a bit based on a 19 request that we made to your Honor, and your Honor endorsed our 20 request to extend this discussion period about substitutes 21 until April 19 and the date by which TSA would issue a final 22 determination to April 30. 23 That remains the schedule and that is the plan as of 24 now, unless further discussions are agreed upon by the parties 25 or another process. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 441n911n 1 THE COURT: Can I help in any way in this process? 2 MS. GOLDMAN: Well, possibly. I believe that once TSA 3 completes its attempts at providing substitutes and the parties 4 have them to review, they may have further requests and TSA can 5 attempt to address those. But if it comes to a point where 6 there is an impasse and the parties are not satisfied with what 7 they've gotten and believe that there may be more information 8 available to them, to the extent your Honor is interested in 9 being more involved in that process, TSA is certainly amenable. 10 THE COURT: I would be interested if the parties wish 11 me to be interested. The law gives me no official role in 12 this. But there are useful techniques that have been used in 13 some of these cases. It would be possible, for example, if the 14 parties consent to have me shuttle between the different camps 15 trying to work out substitutions, trying to obtain greater 16 specificity of requests and the like with a view toward 17 providing as much or causing as much information to be provided 18 as possible. 19 It is difficult for the plaintiffs, I think, to be 20 specific because specificity draws upon information and they 21 claim to have a paucity of information. But it may be possible 22 in a dynamic interchange to obtain greater specificity and 23 obtain greater voluntariness on the part of the TSA. 24 I could become involved in this. This is an important 25 enough case to warrant the time expenditure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 441n911n 1 So I leave it to counsel and to the government to 2 decide if they want to use me in that capacity. 3 MS. GOLDMAN: Very well. 4 THE COURT: We will probable have to relax the dates 5 beyond April 19. 6 MS. GOLDMAN: I'm sorry? 7 THE COURT: We'll probably have to relax the dates 8 beyond April 19 and April 30 if you want to get involved in 9 that process. 10 MS. GOLDMAN: That's something that Mr. Moller will 11 have to consider. 12 MR. MOLLER: Until we see it, that's precisely the 13 problem that we're faced with. We'd like to stick with the 14 dates so we can see these things and begin to make a judgment 15 and involve the court. We're happy to involve the court, but 16 we don't know what to ask for until we see the materials. 17 THE COURT: You are going to see things next week. 18 MR. MOLLER: OK. I want to underscore something. The 19 first-wave documents that we're referring to were the documents 20 described in a summary letter back in March of 2003. The 21 purpose of the first wave was not to circumscribe what the 22 plaintiffs are interested in but to establish a process. So 23 our inquiry does not stop with the first wave. It is literally 24 an experiment in order to be able to gain access to these 25 materials. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 441n911n 1 THE COURT: Mr. Moller, the very nature of this 2 process unfortunately eats up considerable time. From the 3 perspective of the officials and personnel who make up the 4 Transportation Security Administration, they're concerned with 5 the safety of all of us who fly on airplanes. 6 Any disclosure of information creates complexities 7 that they have to be in a position to judge. Now, one can say 8 that the time they've taken is too long, but the 9 responsibilities are very high as well. 10 You are going to get papers next week. You fear that 11 there won't be very much. But let's see what you get. 12 Then, if you want to, I will become involved in some 13 kind of a process where those who have the documents might be 14 in one room and you and Mr. Barry can be in another room or 15 different rooms, and perhaps I can shuttle between the 16 different camps and see if we can move this along. But in 17 order to do that we're going to have to have a longer period 18 than the April 19 and April 30 deadlines that have been set. 19 MR. MOLLER: We share the court's concern about 20 national security and safety. Believe me, everybody in this 21 room does. 22 The litigants also have rights. I am just trying to 23 get the court and the government to know that the first wave 24 that everybody is focused upon was initially designed to create 25 a process, not to circumscribe the areas of interest. So, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 441n911n 1 merely responding to the first wave, if we're very disappointed 2 is not going to be a heck of a lot of assistance in moving this 3 litigation forward. 4 THE COURT: Mr. Moller, you control the timing. 5 MR. MOLLER: OK. 6 THE COURT: If you want to go along with the April 19 7 and April 30 dates, you will do so. The consequence of that is 8 that you will have an unsatisfactory final determination by TSA 9 on April 30, and then you will embark on a period of appeals, 10 the timing which is out of your control. 11 So you choose. 12 MR. MOLLER: We understand the problem. 13 THE COURT: You choose. 14 MR. MOLLER: We understand the problem. I just want 15 to urge the government to be as forthcoming as it can be under 16 these circumstances precisely so that we can address the 17 concerns that you are raising. 18 THE COURT: Ms. Goldman is not in the position -- why 19 do I have to speak for Ms. Goldman? Ms. Goldman is not in the 20 position of being the decider of these issues. 21 MS. GOLDMAN: That is, of course, correct, your Honor. 22 I just want to correct one thing in the record. To the extent 23 there have been delays here, and I understand your Honor is 24 sympathetic to the enormous job the TSA has to do here, but it 25 has not mostly been TSA. The documents were not provided to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 441n911n 1 TSA by the defendants until the fall. 2 THE COURT: Ms. Goldman, I'm not interested in 3 understanding just what dates occurred when or who did what. 4 The issue that we're all confronting, it is a very difficult 5 issue and largely unprecedented, is how to move discovery along 6 in this case without compromising national safety. It is an 7 awesome responsibility. 8 If I can help, I want to. But I think the decision 9 whether or not I should be involved is largely up to counsel 10 and to you. If I am to be involved, we are going to have to 11 set aside time. I have criminal trials coming up, which under 12 law I'm required to give first priority. But I'll try to 13 elasticize my time to the greatest extent possible and 14 accommodate you. It will require an enlargement of the April 15 19 and 30 date. 16 You decide. If Mr. Moller and his colleagues want to 17 stick with his dates, you'll, I think, have already committed 18 to abide by them. I understand from you that you will. 19 MS. GOLDMAN: Yes. 20 THE COURT: But if we want to see if we can work out 21 something that probably nobody is going to be satisfied with, 22 but nevertheless will advance us to some degree, I think we 23 should try. But the decision is not mine. 24 MS. GOLDMAN: Thank you, your Honor. 25 THE COURT: Cannot any other discovery go forward? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 441n911n 1 MR. MOLLER: I think we will be able to address that 2 once we've seen what the defendants produced and we've had our 3 discussions with Mr. Barry. 4 THE COURT: All right. 5 Is there anything else that anybody wishes to bring to 6 my attention? 7 I think the only other matter then is to set another 8 date, which, except for what may be worked out with Ms. Goldman 9 to me I think should be something, what? About 60 days from 10 now? 11 MR. MOLLER: If we're before the court potentially on 12 the 9th of June -- 13 THE COURT: Not everybody will be here probably. 14 MR. MOLLER: You might want to have the two coincide. 15 THE COURT: No, I do not. 16 MR. MOLLER: OK. 17 THE COURT: It is at the end of a day of trial. I 18 won't have time or energy. 19 Let's go off the record for a minute. 20 (Discussion off the record) 21 THE COURT: How about 1:00 in 14D on June 4? We will 22 meet again on June 4 at 1:00 in courtroom 14D. 23 Again, if Mr. Barry and Mr. Moller could combine on a 24 suggested agenda that will be helpful. We'll have 25 information -- I'm sorry. This is not a good date. We're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 441n911n 1 meeting June 9. 2 What is the date that we're meeting on the argument? 3 MR. MOLLER: June 9. 4 MR. BARRY: June 9. 5 June 18 at 10:00, 14D. 6 Thank you all very much. 7 Have a good holiday, Easter or Passover. 8 (Adjourned) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300