1 426WsepC 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 February 6, 2004 7 10:30 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: MICHAEL F. BAUMEISTER 17 17 BAUM, HEDLUND, ARISTEI, GUILFORD & SCHIAVO 18 Attorneys for Plaintiff Vadah, et al. 18 BY: JOHN GREAVES 19 RONALD L.M. GOLDMAN 19 20 HANLY & CONROY, LLP 20 Attorneys for Plaintiffs 21 BY: PAUL J. HANLY, JR. 21 JAYNE CONROY 22 22 HALE and DORR, LLP 23 Attorneys for Plaintiff Lewin 23 BY: JOANNE L. MONTEAVARO 24 24 THE BRUALDI LAW FIRM 25 Attorneys for Plaintiff Rothenberg 25 BY: KEVIN O'BRIEN SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 426WsepC 1 Appearances (cont.): 2 ZIMBLE & BRETTLER, LLP 2 Attorneys for Plaintiff Peters 3 BY: CHARLES CAPACE 3 ANTON REINERT 4 4 MOTLEY, RICE, LLC 5 Attorneys for Plaintiffs 5 BY: RONALD L. MOTLEY 6 6 UNITED STATES ATTORNEY'S OFFICE 7 BY: BETH E. GOLDMAN, AUSA 7 SARAH NORMAND, AUSA 8 8 CONDON & FORSYTH 9 Attorneys for Defendant American Airlines 9 BY: DESMOND T. BARRY 10 MORGAN HEYER 10 11 DEBEVOISE & PLIMPTON 11 Attorneys for Defendant American Airlines 12 BY: ROGER E. PODESTA 12 13 ST. JOHN & WAYNE, LLC 13 Attorneys for Defendants 14 Continental Airlines and America West 14 BY: PETER B. VAN DEVENTER, JR. 15 15 ROPES & GRAY, LLP 16 Attorneys for Defendant The Boeing Company 16 BY: WILLIAM SUSSMAN 17 17 PERKINS, COIE, LLP 18 Attorneys for Defendant The Boeing Company 18 BY: THOMAS J. McLAUGHLIN 19 19 QUIRK & BAKALOR 20 Attorneys for Defendant United Airlines 20 BY: MICHAEL R. FEAGLEY 21 JEFFREY J. ELLIS 21 22 O'MELVENY & MYERS 22 Attorneys for Defendants 23 Massport and all airport operators 23 BY: MARK WOOD 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 426WsepC 1 Appearances (cont.): 2 FLEMMING, ZULACK & WILLIAMSON 2 Attorneys for Defendant 3 The Port Authority, et al. 3 BY: RICHARD A. WILLIAMSON 4 BRADFORD STEIN 4 JASON COHEN 5 5 RICHARD P. CAMPBELL 6 Attorney for Defendant U.S. Airways 6 7 CONNELL, FOLEY 7 Attorneys for Defendant Colgan Air 8 BY: JEFFREY W. MORYAN 8 9 MILBER, MAKRIS, PLOUSADIS & SEIDEN 9 Attorneys for Defendant Skilling Ward 10 BY: MARISA LANZA 10 11 WARDEN, TRIPLETT, GRIER 11 Attorneys for Defendants 12 Certain Underwriters Lloyds of London, et al. 12 BY: TIMOTHY W. TRIPLETT 13 MICHAEL J. KUCKELMAN 13 14 JONES, HIRSCH, CONNORS & BULL, P.C. 14 Attorneys for Defendant Globe Aviation 15 BY: JAMES P. CONNORS 15 16 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 426WsepC 1 (Case called) 2 (In open court) 3 THE COURT: I've received the suggestions of a number 4 of people for the agenda for today, the agenda that's been 5 distributed, which everyone I hope will either have a copy or 6 access to a neighbor's copy. We'll tell you how we are going 7 to proceed. I want to assure anyone who wishes to be heard 8 that at one part of the agenda, No. 7, we'll take up whatever 9 else anyone wishes to bring to my attention. 10 I've also received this morning the government's 11 submission. Thank you, Ms. Goldman. And I've read that as 12 well. And in lieu of the suggestions made to me by Mr. Moller, 13 how to administer the ending of the suspense calendar, we've 14 adopted some of his ideas, added others, and incorporated them 15 in a proposed order that I distributed this morning and which I 16 do for purposes of eliciting comments from you. So let's start 17 by dealing with No. 1, which is the status of the Victim 18 Compensation Fund. 19 As you know, as I think you know, this procedure, in 20 the aftermath of the terrorist-related aircraft crashes is 21 rather unique. A Victim Compensation Fund was established, 22 which, although it had precedence going back as far as the 23 aftermath of the 1812 War, was unique in many respects. It has 24 been superbly administered by Special Master Kenneth Feinberg, 25 and it looks to be in its ending stage. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 426WsepC 1 Congress provided, as amplified by the regulations, 2 that applicants would have until December 22, 2003, to make 3 application to the Victim Compensation Fund, and the special 4 master in regulation enlarged that period for purposes of 5 perfecting applications another month, until January 22. The 6 dates are important because Congress also provided explicitly 7 and by implication that people can't go both ways. They can't 8 both apply to the Victim Compensation Fund and proceed with a 9 lawsuit. This presented an exquisite problem for many people 10 whose emotions were tried by the loss of loved ones in an 11 incomparable disaster, and who were unsure of their rights and 12 how to proceed. 13 In the interests of fully implementing the 14 congressional intent that people have until December 22, 2003, 15 to file a claim with the Victim Compensation Fund, it was 16 necessary for me to deal with an earlier expiring statute of 17 limitations with regard to lawsuits. And so, to accommodate 18 those people who should not be prejudiced by the full period 19 allotted to them by Congress and not allow a statute of 20 limitations under state law to curtail their rights, I provided 21 with the concurrence of a special master, that people could 22 file a lawsuit, satisfy the statute of limitations, that was 23 particularly a problem with the Port Authority because of the 24 special legislation that provided as a jurisdictional matter 25 the need to both make claim and file within a shorter period of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 426WsepC 1 time. I made provision that people could file a lawsuit, put 2 that lawsuit in suspense, and that lawsuit would not be 3 considered an alternative to the application to the special 4 master until the period ran out. 5 On December 22, the period ran out. But because the 6 definition of a claim in the statute had some ambiguity to it, 7 by action of the special master and by my ancillary order in 8 this court, the period was expanded so that a person who filed 9 and satisfied the December 22 deadline but who needed another 10 month to perfect his claim to make a claim within the 11 definition of the statute would be accommodated without losing 12 any rights that might inure to him under the previous orders I 13 made with regard to the suspense filings in this court. 14 Accordingly, I've provided in my previous order that 15 if a person did not perfect by January 22, that period ran out. 16 And with another period of time, another two-week period of 17 time to allow for administrative details, on February 6, that 18 would be the end date for the suspense calendar. 19 I'm advised by the special master that his lists are 20 not yet complete, so the administrative cleanup that I 21 contemplated cannot be nicely performed. However, we have been 22 compiling our own lists, and what we have done in the 23 provisional order that I distributed this morning, is to 24 provide that as of this date, we can compare active cases and 25 suspense cases and provide for the dismissal of the suspended SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 426WsepC 1 cases. So as of this date, there will not any longer be a 2 suspense calendar, with regard to the claims that are mainly 3 involved here, with one exception that I will get to in a 4 minute, with two exceptions that I will get to in a minute. 5 I need to know in a precise and early period of time 6 if my records are incomplete in some fashion or wrong. So I 7 want to provide a short period of time within which people can 8 let me know of an error with regard to the lists. 9 By Friday next, anyone who has not written to me, so I 10 can receive it by Friday, will be barred, and that list will be 11 final and the clerk will be directed to eliminate the suspense 12 calendar. All cases on it will be dismissed. The letter 13 should be sent to me, copied to Mr. Moller, copied to 14 Mr. Barry. 15 Is there any question -- let me, before I ask a 16 question, let me just make three comments that will cover the 17 two exceptions. Ms. Goldman, do you want a copy of this? 18 MR. GOLDMAN: Yes, your Honor. 19 THE COURT: A copy to Ms. Goldman as well, Mr. Moller, 20 Mr. Barry, and Ms. Goldman. And, of course, me. 21 Three comments to cover the two exceptions. One, 22 there are a number of claims that I believe have not been 23 perfected with the special master, which the special master may 24 or may not continue to entertain. I'm not concerned about 25 that. If anyone wishes the special master to entertain the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 426WsepC 1 application, that lawsuit cannot continue with me. If the 2 applicant wishes to continue the lawsuit with me, the applicant 3 must discontinue with the special master. Otherwise, a motion 4 can be made to me, and I think I would be receptive to granting 5 that motion, to dismiss the lawsuit before me, because of a 6 matter pending before the special master. So I want you all to 7 take note that after today, there will no longer be dual 8 filings. After today, the choice must be made and perfected: 9 Either the Victim Compensation Fund or the lawsuit. 10 Now, the two exceptions, with regard to respiratory 11 injuries, and the issue of federal jurisdiction about which I 12 issued an opinion, an appeal is pending before the Second 13 Circuit. While that appeal is pending, it would be 14 inappropriate for me to do anything with regard to the cases on 15 the suspense calendar, subject to that appeal, and that 16 suspense calendar will therefore continue, at least for the 17 time being. 18 The second exception deals with the Virgilio actions. 19 That would be No. 6 on the agenda, and whatever my disposition 20 with regard to those lawsuits, will of course apply to what I 21 say now, with regard to item No. 1 on the agenda. 22 I think that completes what I need to say on either 23 one, A and B, and I'll entertain any comments at this point in 24 time. Anyone who wishes to comment will kindly announce who he 25 or she is and who he or she represents for the benefit of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 426WsepC 1 reporter. Are there any comments? 2 Hearing none, we'll move on to the second item, which 3 deals with the status of pleadings. 4 There are a number of issues that are involved here. 5 First, as a rationale for a lot of what I've been doing, I've 6 said it numbers of times from the outset on, that it's my 7 intent to give anyone who wishes to proceed with the lawsuit as 8 fair and as expeditious a proceeding as I can deliver. As I 9 wrote in one of my decisions, Congress provided for 10 alternatives, this being one of those alternatives, the 11 traditional mode of a lawsuit. The other alternative is 12 application to the Victim Compensation Fund. I've dealt with 13 that, and now you have to focus on the lawsuit. 14 People have many motives that can make the bringing of 15 a lawsuit. I'm not interested in those motives. As a district 16 judge, I'm here to preside over the expeditious and fair moving 17 along of the case toward resolution, one way or another. 18 That's my intent, and therefore, with that rationale, I want to 19 discuss a few of the items in item 2 of the agenda. 20 First, I've tried to move the case even though the 21 pleadings and the identities of the parties have not yet been 22 closed. We don't know yet the precise identities of all the 23 plaintiffs. But we will know them within the next two weeks, 24 by reason of the provisional order. 25 We also do not yet know the identities of all the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 426WsepC 1 defendants, and that is because a number of the plaintiffs have 2 initiated proceedings to name additional defendants, many of 3 which are in foreign countries. And service with regard to all 4 these defendants has not been completed, and I've issued 5 various enlargements of the time within which to make service. 6 Rule 4 provides that there is a 120-day period within which 7 service has to be completed. Under the Hague Convention, a 8 longer period is contemplated, as long as six months, but there 9 are alternatives in the Hague Convention as well that can bring 10 about a speedier and more efficient effectuation of service. 11 I provide in the provisional order that all 12 enlargements of time will run out on March 31, 2004 -- sorry, 13 March 7, 2004. That provides another month to complete 14 service. I add in my last sentence that further enlargements 15 are not likely to be given and will depend upon a showing of 16 specific justification why service has not been completed in 17 the time provided. 18 The purpose of this deadline is to accommodate the 19 need for the filing of amended complaints by March 31, 2004, 20 and that purpose will allow us to know with precision who are 21 the plaintiffs, who are the defendants, and what are the 22 claims. Undoubtedly, there may be additional pleadings after 23 that, third-party pleadings and beyond, or there may be 24 stipulations that may make that unnecessary, and I don't know 25 that. But until I provide for the closure of the main SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 426WsepC 1 pleadings, we cannot proceed to finish the pleading stage 2 entirely. So to accommodate the closing of the proceedings, I 3 provide these March 7 and March 31 dates. 4 I'll stop to take any comments with regard to that. 5 MR. MOLLER: Your Honor, Marc Moller, plaintiffs' 6 liaison counsel. 7 THE COURT: I'm going to ask you, Mr. Moller, to speak 8 loudly so everyone in the room can hear. If there's anyone in 9 the room who cannot hear, let me know. And I want you all to 10 be involved with this. I don't know who you all are, but if 11 you have enough interest to come out in a rather bad weather 12 day in New York, you should at least hear what's going on. 13 MR. MOLLER: Good morning, your Honor. 14 The March 7 date, I think, works for domestic 15 defendants. I believe, not knowing the degree of specificity 16 one would need in order to fall within the orbit of your 17 enlargement option, that is the last sentence of paragraph 2, 18 that people who have utilized the Hague methodology for service 19 of foreign defendants may not be able to, no matter what they 20 do, accommodate the March 7 date because once service of 21 process goes through the State Department, it's largely, if not 22 out of their hands, the options are severely limited. 23 THE COURT: There is a provision that provides for 24 alternative methods of service under the Hague Convention, 25 Section 5, which are not inconsistent with foreign law. I want SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 426WsepC 1 that alternative to be tried and used. People who want this 2 lawsuit to proceed are prejudiced by delay, and to the extent 3 that people can't effectuate service within the time provided, 4 they create prejudice to those who are ready to proceed, and I 5 have to measure one right against another. It's not the 6 typical lawsuit. 7 MR. MOLLER: There's no disagreement and no lack of 8 appreciation of that problem. All I'm saying is that the 9 foreign defendants are largely foreign air carriers, in one 10 context or another, or corporate parents of, foreign corporate 11 parents of an American domestic subsidiary. And the people who 12 will have tried to effectuate service use whatever avenues are 13 available under Section 5, but if the Court's intent is to hold 14 them to a very tight service requirement or service effort 15 requirement, that may be too narrow a box to put them in, with 16 all due respect. 17 THE COURT: What's your suggestion? 18 MR. MOLLER: My suggestion is that you carve out those 19 cases that have to utilize the Hague system. Since they are 20 not primary defendants in the sense that they're not United or 21 American or World Trade Center owners and operators, I don't 22 think giving the people greater flexibility impacts adversely 23 upon the litigation going forward. It's not going to focus on 24 the foreign defendants. 25 THE COURT: There's a question which I've raised SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 426WsepC 1 before, whether it serves the main interests to add these 2 additional defendants, but that's not my choice. That's the 3 choice of the plaintiffs. 4 MR. MOLLER: But that brings us to another point. The 5 foreign service issues may be overcome over the next couple of 6 weeks as further consideration is given to dropping noncarriers 7 and other defendants. So we may be working at cross-purposes. 8 One of the reasons for the March 31 date that I 9 suggested in my letter to the Court, which is consistent with 10 an earlier order that you issued, is for us to work hard as we 11 have been, to narrow the scope of the litigation and get the 12 real parties in and everybody has cooperated. I think you've 13 seen notices of dismissal come in, certainly been advised of a 14 dismissal of a number of party, noncarriers and others, we're 15 working to do that. 16 THE COURT: I think the March 7 date will help you. 17 MR. MOLLER: It may help. It also may make it a 18 little tougher to do it in a common sense fashion. 19 THE COURT: I'd like to keep that March 7 date, and if 20 there is specific prejudice, you'll have to let me know. As 21 for enlargement, I'd like to keep the enlargement period short. 22 This is an uncommon litigation, and I have to manage it in a 23 way that allows the main parties to move forward without 24 affecting prejudice to those who might have some other kinds of 25 interest. I think the March 7 date accommodates that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 426WsepC 1 MR. MOLLER: That's fine, so long as you know the 2 concerns we have. 3 MR. ALEXANDER: One thing to add; we brought this to 4 the attention previously to chambers. 5 With respect to at least several of the foreign parent 6 companies in security realm things, we've had discussions with 7 them about coming up with an efficient Hague process once the 8 field of plaintiffs was identified, which is now, and we've 9 delayed that dialogue in coming up with that mechanism until 10 now at their request, which we didn't object to, in the 11 interests of doing it efficiently and effectively now. We're 12 going to move that ball, if we can't come up with an effective 13 way. We don't believe Section 5 of Rule 4 can be accomplished 14 by March 7. We'd like to come to you ahead of that to raise 15 the issue. 16 THE COURT: That would also require enlargement of the 17 March 31 date. 18 MR. ALEXANDER: Not necessarily because it seems to me 19 these defendants have already been given a substantial 20 enlargement as to their answers so they can still be defined 21 even if they're not served. They can still be in the pleadings 22 at that point in time. If it proves that they're not properly 23 served at some point in time, it will be by default. 24 THE COURT: Anything's possible, Mr. Alexander. Let's 25 keep these dates, and if there is specific prejudice, I'll deal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 426WsepC 1 with it. 2 I think that takes us through item 2. Is there any 3 comment with regard to item 2 on the agenda? 4 MR. BARRY: Your Honor, if I may, defendants' liaison 5 counsel. 6 I feel it's incumbent upon me, your Honor, to bring to 7 your attention the concern of the noncarriers who have been 8 sued, particularly those who were in once initially as foreign 9 noncarriers, now they've been removed by certain plaintiffs. 10 They're going to a great deal of expense, a great deal of 11 inconvenience, and to this date, they haven't been told why 12 they're being sued. They've asked me to approach the Court and 13 ask if they can submit contention interrogatories. If the 14 lawyers who are suing them, the plaintiffs' lawyers will at 15 least return their phone calls to let them know why they're 16 still in the case, there's no rhyme or reason, your Honor, why 17 a lot of these defendants have been named. Certainly in 18 respect to flights 93 and 77, there's absolutely no reason for 19 them. And I've approached Mr. Moller on several occasions to 20 try and get an explanation for this, but none has been 21 satisfactory that I can relate to my constituents. 22 THE COURT: Maybe you'll get something publicly now. 23 MR. BARRY: I anxiously await. 24 MR. MOLLER: Let's break it down and look at the 93, 25 77, 175 and 11 issues because they're different. And be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 426WsepC 1 practical about it, with respect to 93 and 77 -- 2 THE COURT: Is everybody hearing? 3 MR. MOLLER: With respect to flights 93 and 77, for 4 the passenger and whatever ground victims may be associated 5 with the flight 77 crash, in all likelihood -- 6 THE COURT: 77 is the Pentagon crash and 93 is the 7 Shanksville, Pennsylvania, crash. 8 MR. MOLLER: In all likelihood, the coverage that's 9 available for the primary defendants in those cases, American 10 and United, for each of the respective airplanes, is adequate 11 to meet the losses that would be proved once liability is 12 established, except that crew members on those aircraft would 13 be barred from suing their respective employer, United or 14 American, as the case may be, as has been related to me. So as 15 to those parties -- 16 THE COURT: Because of Workers' Compensation. 17 MR. MOLLER: Because of Workers' Comp. 18 So as to those two parties on those two flights, if 19 there is proved liability on noncarriers, they have an avenue 20 for recovery that otherwise is foreclosed. 21 Now, I'm informed, and Mr. Migliori, Mr. Motley's 22 partner can speak to that, one of these is their cases. They 23 are also working to resolve that specific noncarrier issue, and 24 over the next few days, because we've all got a fire under us 25 to resolve those issues by March 31, nobody wants this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 426WsepC 1 litigation to be more complex than it has to be, we may find a 2 way out of that morass for those two flights. 3 Now to move to 175 and 11, United 175 and American 11, 4 which are the World Trade Center impact cases, in those cases, 5 there are personal injury, death, and property damage cases, 6 all wrapped up in the same fundamental liability issues. And 7 to be practical about it, there may well be more parties trying 8 to seek a limited fund than otherwise. So the practical 9 opportunities that were available in 93 and 77, leaving aside 10 whether somebody is liable or not, the practical opportunities 11 for 175 and 11 are different. 12 So, until we are satisfied that noncarriers and other 13 defendants have either no responsibility with respect to the 14 175 and 11 events, or the other, once we are satisfied that 15 they are, then the issue of whether or not those parties can be 16 released can be solved more easily. Now, we are working to 17 narrow the field of noncarriers and working very actively. 18 One of the things that's going to complicate this 19 situation now is the TSA's position just announced to the 20 Court, which we got last night, that SSI materials are not 21 going to be disclosed to the plaintiffs. So if we're not going 22 to be given access to the proof that relates to security 23 responsibilities for those parties and the noncarriers, at the 24 airports, airplanes, etc., we may have a harder time resolving 25 those issues. So TSA's position has now injected a level of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 426WsepC 1 complexity that we thought would not be in this case. 2 THE COURT: Do you want to say something, sir. 3 MR. MIGLIORI: Mr. Moller has accurately described our 4 conversation about the issues with respect to 93, 77, and then 5 11 and 175. The only thing I would like to add in response to 6 Mr. Barry's comments is that, in fact, we have returned many of 7 those phone calls with defendants, and they too are running 8 into the same problem when we say if you show us the documents 9 that show that you weren't there at the time or that you 10 somehow are completely outside the loop of liability, then we 11 will go ahead and effectuate dismissals, and their responses 12 are, We can't do that until we talk to TSA. 13 THE COURT: We'll get to that issue under categories 4 14 and 5. 15 MR. MOLLER: Your Honor -- 16 THE COURT: Let me address Mr. Barry. 17 One reason for my effort to restrict the dates for 18 making service is to accelerate the decision process with 19 regard to who will be and who will not be in the lawsuit. 20 Before that can be done, if discovery is an issue, for example, 21 contention interrogatories by any group of defendants who are 22 in the case, I open up the problem that later entering 23 defendants will want to enlarge on that list or do something of 24 their own, and it's hard to create a certain degree of 25 necessary economy and efficiency, until the pleadings have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 426WsepC 1 closed. 2 MR. BARRY: I appreciate that, your Honor. 3 THE COURT: So that's why I think it's premature on 4 your part to address contention interrogatories. But I gather 5 from Mr. Moller's comments and Mr. Migliori's comments that the 6 plaintiffs don't quite know enough to make an intelligent 7 definition of who should be sued and who might not be sued but 8 yet feel, under Rule 11, they have reasonable and adequate 9 basis to name people, name institutions as defendants. I think 10 we just have to wait. And it solidifies my own feeling that 11 March 7 is a good date to cause this issue to be decided. 12 MR. BARRY: I'm in complete agreement with you, your 13 Honor. I just felt it was incumbent upon me, the story about 14 phone conversations being returned or not returned, I'm getting 15 a different one from my constituents than was just reported. I 16 think a lot of these people were sued because they just went to 17 the airport and looked up and said who is there now, and some 18 of them weren't even there September 11. So you mention Rule 19 11 because that's right in the back of my mind and is in the 20 back of several lawyers in this room as well. 21 Further I will sayeth not. 22 MR. MOLLER: With all due deference to our friend 23 Mr. Barry, we must talk three times a day, and this is one of 24 the problems that we can't solve. 25 THE COURT: Mr. Moller, I think we can move past that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 426WsepC 1 now. 2 Item 3, dismissal on summary judgment motions, and I 3 have a feeling that is something we need to address at our next 4 conference, rather than this one. We have to close the 5 pleadings first. 6 Right, Mr. Barry? 7 MR. BARRY: That's correct, your Honor. 8 THE COURT: Ms. Goldman, you were rising or just 9 shuffling. 10 MS. GOLDMAN: Just shuffling. 11 THE COURT: Which brings us to items 4 and 5. 12 Mr. Moller, would you give a summary of what discovery 13 issues have been dealt with? 14 MR. MOLLER: Your Honor, after serving the master 15 discovery requests in early 2003, we reduced that omnibus 16 series of requests in a letter of March 24 identifying several 17 major categories in order to give a sharper focus and to give 18 TSA an opportunity to come up with a plan to vet those 19 documents so that we could get access to it. Since March 24, 20 2003, we've seen obviously nothing from the airlines or any 21 other defendants because of the TSA's position. With respect 22 to the Port Authority, the port is aware of that fact. I 23 understand the Port Authority has put together a substantial 24 package or packages or truckloads of materials for us to look 25 at, and we will be given access to those as soon as the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 426WsepC 1 confidentiality order that's been submitted to you and now 2 signed -- 3 THE COURT: I've signed it. 4 MR. MOLLER: -- and circulated, we just got it. We 5 can move forward with the Port Authority in discovery, I would 6 say, in legal terms, immediately. And we're going to do that. 7 THE COURT: You've noted, and Mr. Williamson has 8 noted, that I changed the provisions for filing in secrecy. I 9 have a very strong belief that whatever is filed, to the 10 greatest extent possible, should be accessible to the public. 11 So I've provided that if there is some kind of dispute that 12 would require the reference to, discussion of, or attachment of 13 documents that are confidential, to the greatest extent the 14 copies that should be attached should be redacted to eliminate 15 that which is confidential, but if confidentiality is required 16 in the discussion or in the attachment, application should be 17 made to me first and we'll regulate that which can be filed in 18 secrecy and that which should be filed in the open. 19 As a matter of practice, the easiest thing to do is to 20 file the motion, if anyone wishes to make it, and to substitute 21 some innocuous statement instead of a document that has some 22 kind of problem to it. And then, in a joint letter, present to 23 me the problem that you need to be resolved, and when I resolve 24 that, the public filings can be supplemented accordingly. 25 MR. MOLLER: I think we're on the road now with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 426WsepC 1 respect to Port Authority discovery. We can start moving and 2 examining documents, and the plaintiffs' committee can then 3 plan to take or schedule depositions. We're working on that 4 right now. Not having seen all of the documents, it's hard to 5 be more specific, but I think the door has been opened and 6 we're going to walk through it and begin that effort. 7 I believe that the discovery from Boeing is likely to 8 follow the same course in short order. I don't believe that 9 there are any significant SSI issues that relate to the design 10 issues, nor issues that have been advanced against Boeing, but 11 we'll see. But I think that's going to move forward now quite 12 expeditiously. 13 With respect to the discovery of noncarriers, that's 14 been discussed with you. There's nothing I can add to that at 15 the moment. The position of the TSA with respect to the 16 aviation documents is a very, very serious matter and creates 17 both opportunity and frustration 18 THE COURT: As a practical matter, how have you been 19 proceeding with TSA? 20 MR. MOLLER: We have been sitting in our office 21 waiting for resolution from TSA. After submitting this letter 22 of March 4, 2003, almost a year has gone by, and TSA can speak 23 to it and Ms. Goldman can address the Court. We've now been 24 told, in all likelihood, for all intents and purposes, we're 25 going to get very, very little. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 426WsepC 1 I suspect, reading between the lines, we're going to 2 have some discussions with TSA to loosen some constraints with 3 respect to SSI documents. I don't know whether that would be 4 meaningful, whether we'll get access to crucial stuff that we 5 know is out there. I've read the McHale affidavits of 6 September 2002 and his statement of February 5, 2004, and they 7 are in marked contrast. 8 In 2002, Mr. McHale said, "Before the parties engage 9 in SSI-related discovery, the TSA maintains that the Court 10 should first identify the categories of claims that will 11 comprise the September 11 tort litigation." You did that by a 12 decision of September 9, 2003. "TSA will either seek appellate 13 review of that order, if they're forced to provide stuff, or 14 establish a clearance procedure for a strictly limited group of 15 attorneys and litigation support personnel." 16 Plaintiffs' counsel, 14 plaintiffs' counsel have been 17 given SSI clearance; the defendants' counsel do not need it. 18 The defendants in large measure do not need it, so the 19 plaintiffs are the ones who are now granted clearances, but we 20 don't get anything. 21 THE COURT: They don't need it because they have it? 22 MR. MOLLER: Yeah, they don't need it because they're 23 considered within the need-to-know orbit, and we're not. 24 "The TSA will establish procedures for storing, 25 handling, and processing of relevant SSI procedures in which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 426WsepC 1 cleared individuals may view it." Now we're told we're not 2 going to see it; there is no storage. Mr. McHale suggested 3 closing the courtroom to the public when SSI presented its 4 evidence. 5 Now in 2004, the deck has been changed. So we really 6 don't have any idea as we stand here before the Court today 7 what TSA is going to allow us to see and use. And that may 8 create a very different cast to this lawsuit because if the 9 plaintiffs, based upon what they know from the public record, 10 are able to establish a violation of the duties of care and the 11 breach of the cockpit that it is, ironically, the defendants 12 who may not be able to use materials to defend themselves which 13 are SSI. 14 THE COURT: You're considering the possibility of a 15 presumption that would aid the plaintiffs in making out their 16 prima facie case. 17 MR. MOLLER: Absolutely right. Absolutely right. And 18 that presumption, based upon the FAR 107, 108, 91.3 of the 19 Federal Aviation Regulations, the statute, common law, your 20 September 9, 2002 -- 2003, opinion and all of the rules, 21 regulations, jurisprudence that goes with it, we may have 22 enough today. 23 THE COURT: There's nothing at my fingers that 24 establishes a presumption. 25 MR. MOLLER: That is true. We got this last night, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 426WsepC 1 and I was thinking about it since they told us they were 2 nearing closing the door. It may be that what we know about 3 the event is enough without presumptions to give us a prima 4 facie case of breach. That cockpit should not have been 5 entered by anybody in those planes. That was an inviolable 6 space on the airplane which nobody should get into, but 7 somebody obviously got into it. This is a serious question. 8 THE COURT: That would be an issue with Boeing. 9 MR. MOLLER: That would be an issue with Boeing. 10 THE COURT: But it wouldn't set anything perhaps with 11 the Port Authority. 12 MR. MOLLER: That I agree with. 13 THE COURT: Or with the aircraft operators. 14 MR. MOLLER: I disagree with that. The Port 15 Authority's on the ground. 16 THE COURT: I'm sorry. The airport people. 17 MR. MOLLER: I'm not sure. I haven't thought it all 18 the way through. 19 THE COURT: And it may not say anything to the 20 airlines. But I don't know. I don't want to get into those 21 issues at this point in time. You're briefing them and I'll 22 consider them. 23 MR. MOLLER: It's food for thought. 24 THE COURT: It doesn't involve you, does it? 25 MR. WILLIAMSON: It does. That's what I wanted to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 426WsepC 1 clear on. The way Mr. Moller was speaking was a little too 2 broad. Actually, our clients, the ground defendants stand in 3 the same shoes as the plaintiffs with regard to the access. 4 We've also received security clearance, also have not been 5 allowed to see the documents, also just received the 6 government's submission late last night. But we stand in the 7 same shoes, we want to see the same documents. On this issue 8 we're together. 9 MR. MOLLER: So all I'm saying is that last night's 10 document submission that we got around six, 6:00, has raised 11 some very, very complex and interesting issues which may give 12 this litigation a sense of direction which might even get us 13 home very quickly. 14 THE COURT: Ms. Goldman and Ms. Normand will have to 15 address the timeliness of the situation. I appreciate the 16 issues they have to deal with, and the clearances they have to 17 obtain through their client made it impossible for them 18 notwithstanding great effort on their part to submit earlier. 19 I've read the McHale affidavits and the problems and issues 20 they depict about attending to the security of the travelling 21 public, making these issues very difficult ones to deal with. 22 And I want to make it very clear that there is no criticism 23 from me about the time of your submission. I appreciate your 24 strong efforts in bringing it to our attention so that we could 25 function today. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 426WsepC 1 MR. MOLLER: We join in that. We have no criticism at 2 all of Ms. Goldman, Ms. Normand or Ms. Martin. We understand 3 TSA has its own internal workings that might bring them to a 4 conclusion here. But the bottom line is that we now know as 5 against the aviation defendants we are going to have a serious 6 set of evidentiary issues and proof issues and access to proof 7 issues to contend with to figure out how it impacts the 8 litigation, and it's very interesting that in the 2004 McHale 9 affidavit attached to these papers, one of those things that he 10 says on page 3 is: "The security rationale for limiting access 11 to those persons and entities with a regulatory need to know 12 stems primarily from the extent to which this information, if 13 compromised, in whole or in part, would reveal systemic 14 vulnerabilities in the transportation system," exactly what the 15 plaintiffs are claiming contributed to this particular tragedy. 16 THE COURT: Ms. Goldman, Mr. Moller has painted an 17 interesting picture. 18 MS. GOLDMAN: Yes. Let me start by saying -- 19 THE COURT: Mr. Moller, would you pass the microphone. 20 MS. GOLDMAN: Let me start by saying something I think 21 the Court appreciates, but I'd like everybody else here to 22 understand. TSA does not reach this decision lightly. This 23 was an excruciatingly difficult decision to make, and it is not 24 TSA's goal certainly to make this litigation more difficult. 25 But that may, unfortunately, be the byproduct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 426WsepC 1 Let me address first Mr. Moller's point. TSA has 2 consistently taken the position throughout, since the time we 3 came into this litigation, that it was never a guarantee that 4 any SSI would be disclosed here. All of the discussion about 5 what might happen later was with the caveat if and only if TSA 6 determined that these matters could be disclosed. And if one 7 looks back at the McHale declaration, I think you will see that 8 there is a caveat throughout. 9 Let me add to that that although this first wave was 10 determined in March, the documents were sent to TSA in November 11 of this year, that was the first time TSA received them, and 12 they have been under review. And given that a decision had not 13 been made about what the policy would be about how to handle 14 SSI material, they had not completed the review. The review 15 now is almost complete. And by next week, they will authorize 16 the disclosures of certain documents on this list that are not 17 SSI. And I think I can identify some of that for you now. The 18 security arrangement contracts will be authorized for 19 disclosure. I'm not suggesting anyone do it yet, but they will 20 be. Next week, they should be authorized for disclosure. In 21 addition, some of the minutes of the meetings, although I think 22 they will be redacted, many of those will be authorized for 23 disclosure next week. So we'll start with that. 24 There are other documents that TSA is still looking at 25 with an eye towards trying to find a way either to redact or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 426WsepC 1 find some substitute so that at least some portions of them can 2 be made available. That is a very tricky business, because 3 documents often, even when redacted, carry -- the SSI and 4 non-SSI are so intertwined that it is very difficult to do it 5 without risking some unnecessary disclosure. 6 Now, let's also talk about some of the things that 7 were going on in 2002. I'm not sure anyone in this room 8 contemplated back then in including TSA that we would still, in 9 2004, be facing some of the risks and security threats that we 10 still are. And I don't think at that point, despite the fact 11 that TSA always said there was no guarantee that SSI would be 12 disclosed, I think many people thought that things would be 13 different going forward. But in fact the level of threats and 14 the risks out there to civil aviation remain extremely high. 15 And as a result, TSA has come to the conclusion, based 16 on its statutory mandate from Congress, its job is to protect 17 the security of people in transportation. And they have come 18 to the conclusion that the way to do that is to have a complete 19 nondisclosure policy, that they are applying everywhere. It's 20 not just in this litigation. In fact, it has been applied 21 everywhere since September 11, and the question is: Do you 22 make an exception here? And TSA came to the difficult 23 realization that there was not a way to do that here that would 24 be secure enough to protect against those risks. 25 And that's where we stand. The hope is that we will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 426WsepC 1 supply at least some information that will be useful to the 2 parties, that we will go along with this process and do an 3 extremely careful job of trying to extract from these documents 4 that will be useful that are not SSI, that will assist the 5 parties and that if the parties then come back and say, look, 6 can you reconsider, maybe there's more there, TSA will look at 7 it again. They will attempt to work with the parties to do 8 what they can to give them information that would be useful in 9 this process. 10 THE COURT: You, on page 15 of your submission, have 11 suggested a procedure for us to use in respect to the SSI 12 materials. Do you suggest first that your review will shortly 13 result in determinations available to the parties, and you 14 suggest that will happen next week? 15 MS. GOLDMAN: Yes. 16 THE COURT: And then you say it's a second step that 17 following receipt, there can be discussions with TSA concerning 18 particular documents or information, the possibility of 19 substitutes. What is the substitute, a paraphrase? 20 MS. GOLDMAN: Yes, that's right. Theoretically it's 21 either a paraphrase. 22 THE COURT: Or summary. 23 MS. GOLDMAN: Taking something out of the document and 24 summarizing it. Exactly. 25 THE COURT: There's no log provision, no provision for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 426WsepC 1 a log. It's very difficult for a party not receiving the 2 document to know if there is even anything to talk about 3 without a log. Is there a log possibility? 4 MS. GOLDMAN: There's not a log, although that 5 probably could be created. But beyond that, given what the 6 first wave documents are, for instance, I think the parties 7 will know what they're getting and what they're not. And to 8 the extent they have thoughts about what they're not getting 9 and arguments as to why there may be a portion that they should 10 get, that would be -- 11 THE COURT: I wonder if it's possible for the parties 12 to know what they're not getting. 13 MS. GOLDMAN: I believe it will be fairly clear when 14 they get what they get and then they see the list. The first 15 wave of documents was not that enormous, and I would say for 16 United and American, it comprised less than two boxes worth of 17 documents, so that they'll know what they're not getting. 18 THE COURT: Is there a second wave? 19 MS. GOLDMAN: Not yet. 20 MR. MOLLER: The purpose of the first wave was to 21 develop a process to find out whether we were going to get 22 stuff or not get stuff and what the problems would be. There 23 is certainly going to be requests for more. 24 THE COURT: Ms. Goldman, would you discuss with your 25 colleagues and give me a suggested agenda of dates for each SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 426WsepC 1 part of the process that you suggest on page 15? 2 MS. GOLDMAN: In fact, we've discussed this, and our 3 thought would be that if we could have two weeks to disclose 4 what we are authorizing disclosure of and whatnot -- 5 THE COURT: So your initial determinations by the 20th 6 of this month? 7 MS. GOLDMAN: Yes. 8 THE COURT: By February 20. And then after an 9 evaluation period, and a discussion period, the issuance of a 10 final order. 11 MS. GOLDMAN: We were going to suggest a month of that 12 discussion and possible further releases during that month. 13 THE COURT: Mr. Moller, I should think a month should 14 be enough to do that. 15 MR. MOLLER: We'd be satisfied with that. 16 THE COURT: The problem would be there's a lot of 17 people involved and a month may not be enough, but let's try a 18 month. 19 MR. MOLLER: Well, one of the questions is obviously 20 the plaintiffs' executive committee will be the ones who will 21 be looking at the materials, and the question will be whether 22 or not people with security clearance are the ones who are 23 limited. I would think that security clearance would not be 24 necessary because you're not giving us the important stuff. 25 MS. GOLDMAN: That's correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 426WsepC 1 MR. MOLLER: Thank you very much. So anybody can come 2 to the party. 3 THE COURT: I would say that by March 12, less than a 4 month, the plaintiffs should have their discussions with 5 Ms. Goldman and other officials of TSA. And how much time 6 after that for your final determination, Ms. Goldman, another 7 month? 8 MS. GOLDMAN: Two weeks. 9 THE COURT: So March 26 for final determination. 10 MR. MOLLER: Your Honor -- 11 THE COURT: One of the problems, if I could just make 12 this observation, is that response to litigation is not one of 13 the considerations that have been set out by Congress for the 14 TSA. And were I to be in charge of security, and being 15 exquisitely aware of the limitations of intelligence and the 16 basic inability to predict what kinds of mischief can occur and 17 where it can occur, it becomes almost impossible for anyone in 18 charge of Homeland Security to give any particular respect for 19 the need to pleadings where the government is not involved and 20 really has no say other than to see justice done, which is a 21 large but rather ambiguous say. It becomes very difficult to 22 predict that the response of TSA in these circumstances can 23 approach in any way the needs expressed by the parties seeking 24 discovery. 25 I make that observation, not that I know what use can SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 426WsepC 1 be made of it, but I think we have a very deep problem here 2 that will probably require some judicial determination. 3 MR. GOLDMAN: In view of Ms. Goldman -- same name, but 4 we're not related. Well, in view of her statement that a log 5 could be created, may I suggest that it would advance the 6 discussions that your Honor has suggested we have by the 12th, 7 if we had such a log because then we would not be talking about 8 an empty hole where there's a speculation on our part about 9 what may or may not be on that log. 10 THE COURT: Do you share Ms. Goldman's belief that the 11 plaintiffs pretty much know and anyone else, Mr. Williamson, 12 pretty much know what they're not getting? 13 MR. GOLDMAN: I don't. I think we would be 14 speculating as to what we're not getting without having any 15 real insight into what that may be. And I think the log may 16 assist us at least in having some insight into knowing what 17 we're not getting. 18 THE COURT: I suspect, Ms. Goldman, that you already 19 have a log. 20 MS. GOLDMAN: No. It may be that the defendants have 21 a log of what they've sent us, but even that log would 22 conceivably constitute SSI. We may be creating more problems 23 than it's worth. 24 THE COURT: You had suggested a few minutes ago that 25 you might be forthcoming with a log. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 426WsepC 1 MS. GOLDMAN: I guess what I'm suggesting is that 2 TSA's reviewing documents provided by defendants, so in a usual 3 case, what would happen is TSA then tells the defendants which 4 documents they can disclose and which they can't, and then the 5 defendants would prepare a log that we would then review that 6 they could show to the plaintiffs. And that procedure we might 7 be able to do. I would think the defendants may want to weigh 8 in on that. 9 THE COURT: Mr. Barry. 10 MR. BARRY: I don't see a real problem, your Honor, in 11 the defendants creating a log of -- what, what we gave to the 12 TSA? 13 THE COURT: Yes. 14 MR. BARRY: If the TSA allows us to do that, if it 15 doesn't constitute SSI, I have no problem with producing that. 16 THE COURT: What about a log from the airport 17 operators? Anybody here standing in for them? 18 MR. WOOD: Your Honor, I have the same comment as Mr. 19 Barry, as long as the log didn't itself involve an SSI problem. 20 THE COURT: That's going to be a determination by TSA. 21 MR. BARRY: We would produce the log to the TSA. 22 THE COURT: When could you both produce your logs? 23 Would a week be enough time? 24 MR. BARRY: A week after we get the government's 25 determination, if we could get a week after that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 426WsepC 1 THE COURT: What I'd like you to do is produce the log 2 not to the plaintiffs but to Ms. Goldman. 3 MR. BARRY: Right. 4 THE COURT: And it will be TSA's determination whether 5 Ms. Goldman can produce that to other parties. 6 MR. BARRY: Basically a list of what we gave them. 7 THE COURT: Yes. 8 MR. BARRY: Which they have as a cover letter, at 9 least from us, with our documents, so that's the log. 10 MR. WOOD: Your Honor, if I could make one other 11 comment. We provided one document pursuant to your Honor's 12 order, which was the airport security. That's what the three 13 airports have provided, so it would be easy for us to do that. 14 THE COURT: I think you've answered my question. By 15 Tuesday, you can provide in the form of an attachment to 16 another letter that this is a list of everything we've given 17 you. And Ms. Goldman can add that. 18 And when will it be possible for you to determine 19 whether you can deliver that log to the plaintiffs? 20 MS. GOLDMAN: I'm told as soon as possible. Let's say 21 within a week after the February 20 date. 22 THE COURT: Okay. By February 27. 23 Mr. Moller. 24 MR. MOLLER: Yes, I just want to emphasize -- 25 THE COURT: Take back the microphone. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 426WsepC 1 MR. MOLLER: I just want to emphasize that the letter 2 of March 24, which set forth eight categories, is a very 3 limited request which was designed as a test by agreement to 4 establish a process, and certainly isn't the major process for 5 discovery, isn't even the minor part. 6 THE COURT: I think everybody appreciates that. 7 MR. MOLLER: Therefore, what we're trying to find out 8 is how is this system going to work. 9 THE COURT: I think you're finding that out. 10 MR. MOLLER: Exactly. 11 MR. WILLIAMSON: Your Honor, if I may, you referenced 12 March 12 as the date by which plaintiffs' counsel should have 13 their discussion with Ms. Goldman again. 14 THE COURT: You're included. 15 MR. WILLIAMSON: Thank you. 16 THE COURT: Anyone who wishes to include themselves 17 should do so. All right. 18 Have we completed the issues of status of discovery? 19 MR. GOLDMAN: One point of clarification. 20 By February 27, as I understand it, the executive 21 committee, Mr. Moller, will be notified one way or another what 22 we're getting by way of logs. Is that -- 23 THE COURT: On February 27. 24 MR. GOLDMAN: Thank you, your Honor. 25 THE COURT: What you're not getting. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 426WsepC 1 MR. GOLDMAN: What we're not getting. Hopefully we're 2 getting something. 3 THE COURT: All right. I think we finished four and 4 five now on the agenda. 5 MR. BARRY: Your Honor, there is one issue on 6 clearances. We have requested clearance from the government to 7 view whatever is produced for the other parties. We've yet to 8 get that. With their present position that they're not going 9 to be producing SSI, I think that issue is moot. But as of the 10 moment, we have made that request to the government, and it's 11 hanging in abeyance. But I just for the record wanted to say, 12 advise you of that. 13 THE COURT: What do you want me to do about that? 14 MR. BARRY: I don't think there's anything you can do 15 about it right now, Judge. Once again, my constituents wanted 16 me to raise that with the Court, which I have now done. 17 THE COURT: Ms. Goldman, do you have a response that 18 you want to make? 19 MS. GOLDMAN: Technically, I believe we have responded 20 and indicated to Mr. Barry we would consider those requests on 21 a case-by-case basis. But at this point, I don't think there's 22 any point in discussing it because no SSI is being disclosed. 23 MR. WILLIAMSON: Your Honor, if I may, just to be 24 crystal clear on this, because I think we have the same issue, 25 our position is, I think, similar to what Mr. Barry SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 426WsepC 1 articulated, but our position is that whatever anybody else in 2 the litigation gets to see, if they ever do get to see any SSI, 3 we get to see it too. There cannot be a litigation where 4 certain parties -- 5 THE COURT: There's no issue, is there? 6 MR. WILLIAMSON: I think from the correspondence that 7 has gone on, that issue is percolating below the surface. 8 THE COURT: Let's clean it up. Is there anyone here 9 who would object to Mr. Williamson's full participation? 10 MR. MOLLER: From the plaintiffs' perspective, not at 11 all. If his client's going to write a check, he might as well 12 play. 13 MR. WILLIAMSON: Then I think we're okay. 14 THE COURT: Let me return to Virgilio in a few 15 minutes. Is there any other item someone wants to bring to me? 16 There's an issue from some insurance carrier that I received. 17 Is that person here? Anybody else want to tell me anything? 18 Before I get to Virgilio, I'd like to set the next 19 meeting. I would suggest April 1 at 3:00 as our next meeting. 20 It's a Thursday. April 1, at 3:00. It's a Thursday. We'll 21 hold it in the ceremonial courtroom on the ninth floor. I 22 choose that date because it's the day after pleadings close and 23 it's several days after the final determination and it's before 24 Easter and Passover, so we'll still be attentive to what's 25 going on here. And all our foolishness can be dissolved by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 426WsepC 1 lunch time so we can proceed to business at 3:00. 2 The next item I'll take up is the Virgilio matter, and 3 all of you are welcome to stay or leave if you wish. If anyone 4 wishes to leave, let me wait a few minutes until the courtroom 5 subsides. 6 o0o 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