1 61ttsepc Conference 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 January 27, 2006 7 1:00 p.m. 7 8 Before: 8 9 HON. ALVIN K. HELLERSTEIN, 9 10 District Judge 10 11 APPEARANCES 11 12 AZREAL, GANN & FRANZ 12 Attorneys for Plaintiffs 13 BY: KEITH S. FRANZ 13 14 CLIFFORD LAW OFFICES 14 Property Damage Claim Liaison 15 BY: ROBERT A. CLIFFORD 15 16 KREINDLER & KREINDLER 16 Attorneys for Plaintiffs 17 BY: MARC S. MOLLER 17 JAMES P. KREINDLER 18 JUSTIN T. GREEN 18 19 SPEISER, KRAUSE, NOLAN & GRANITO 19 Attorneys for Plaintiffs 20 BY: FRANK H. GRANITO, JR. 20 FRANK H. GRANITO, III 21 21 MOTLEY, RICE, LLC 22 Attorneys for Plaintiffs 22 BY: JOSEPH F. RICE 23 23 BAUMEISTER & SAMUELS 24 Attornesy for Plaintiffs 24 BY: DOUGLAS A. LATTO 25 MITCH BAUMEISTER SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 61ttsepc Conference 1 APPEARANCES (Continued) 2 BAUM HEDLUND 2 Attorneys for Plaintiffs 3 BY: JOHN A. GREAVES 3 4 UNITED STATES ATTORNEY'S OFFICE 4 Southern District of New York 5 BY: BETH E. GOLDMAN, AUSA 5 SARAH NORMAN, AUSA 6 JEANETTE VARGAS, AUSA 6 7 FLEMMING, ZULACK, WILLIAMSON, ZAUDERER 7 Attorneys for Defendants 8 BY: M. BRADFORD STEIN 8 RICHARD A. WILLIAMSON 9 9 MAYER, BROWN, ROWE & MAW 10 Attorneys for Defendants 10 BY: MICHAEL ROWE FEAGLEY 11 11 QUIRK & BAKALOR 12 Attorneys for Defendants 12 BY: JEFFREY J. ELLIS 13 13 DEBEVOISE & PLIMPTON 14 Attorneys for Defendants 14 BY: ROGER E. PODESTA 15 15 CONDON & FORSYTH 16 Attorneys for Defendant American Airlines 16 BY: DESMOND T. BARRY, JR. 17 17 THE PORT AUTHORITY OF NEW YORK & NEW JERSEY 18 Commercial Litigation Division 18 BY: KATHLEEN M. COLLINS 19 19 CAMPBELL, CAMPBELL, EDWARDS & CONROY 20 BY: RICHARD P. CAMPBELL 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 61ttsepc Conference 1 (In open court) 2 THE COURT: I would like to start with number three on 3 the agenda, and the status of discovery and depositions. 4 Mr. Moller, would you like to report? 5 MR. MOLLER: Good afternoon, your Honor, there have 6 been a number of meet and confers to resolve as much as 7 possible the document discovery issues. I think they have been 8 substantially narrowed, and we expect to be serving notices of 9 depositions sometimes within the next ten days to two weeks on 10 a multiple parties. Most of them would be 30(b)(6) 11 depositions. There will be a number of specific individuals 12 both within the context of the defendants' organizations and 13 non-party witnesses. 14 THE COURT: I'm somewhat disappointed that they 15 haven't gone forward with more dispatch. 16 MR. MOLLER: Well, the meet and confers have been 17 concluded and the 30(b)(6)s were just ready to go. 18 THE COURT: So we should have factual depositions 19 proceeding in the next three weeks? 20 MR. MOLLER: Within the next 30 days. 21 THE COURT: And with some kind of schedule that would 22 move forward on a fairly strong basis? 23 MR. MOLLER: We're ready to move forward on a single 24 track or double track and try to consolidate the defendants, 25 but our desire is to push pretty heavily on depositions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 61ttsepc Conference 1 THE COURT: I think you should be thinking of a double 2 track. What's the status of the TSA and SSI orders? 3 MR. MOLLER: Beth Goldman informed me that the first 4 TSA order would be issued a week from today, and that order 5 will deal with the process, their rejection of our request that 6 attorneys have access, and invite by implication the Second 7 Circuit to rule on whether or not that protocol is acceptable, 8 the one that we have suggested offered the Second Circuit to 9 recommend the procedure that will accelerate the process. 10 THE COURT: Doesn't sound like a final order to me. 11 MR. MOLLER: They say it's a final order. I can't 12 tell you more until I see it, but we have also been told the 13 orders with respect to specific documents will follow in the 14 month of February, but Beth can speak to that, and that the 15 format of the order, as I understand it, will deal with the 16 first wave of documents that we have requested and then deal 17 with subsequently submitted documents; is that fair? 18 MS. GOLDMAN: That's correct. The first of those 19 orders will be on the first wave and the second order will deal 20 with the second wave in its entirety. 21 THE COURT: I recall that we discussed this on 22 November 18, and I recall that I suggested that you go into 23 depositions and let the government attend, and if they wish to 24 have an objection based on SSI that it will be raised or there 25 would be a final order before that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 61ttsepc Conference 1 So I get from this, Mr. Moller, we haven't had any 2 progress since November 18th. 3 MR. MOLLER: We haven't made as much progress as we 4 would like, but we did make some. The deposition do require 5 narrowing the issues with respect to the documents at least to 6 the extent they have been produced by the defendants, and I 7 can't push the TSA any harder. 8 THE COURT: I know you can't, that's why I suggested 9 going to depositions. That will naturally accelerate the 10 process. 11 MR. MOLLER: Front burner, that's all I can tell you 12 right now. 13 THE COURT: I think we are letting process overwhelm 14 substance. 15 MR. MOLLER: As soon as we have the first deposition 16 we'll know whether that's the case. 17 What we are hearing is that the deposition exercise 18 may be an exercise in frustration, I just don't know yet. 19 THE COURT: It may be an exercise in frustration in 20 that you may not be able to elicit substantive information on 21 points that you wish, but you will be able to flesh out an 22 issue, you will be able to develop the parameters of an 23 objection, and you will be able to create a record which will 24 give the Second Circuit more information. It might be gleaned 25 from a final order that I'm learning from you will not be a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 61ttsepc Conference 1 final order but a series of final orders. 2 MR. MOLLER: I can tell you without reservation that 3 the depositions are going to move forward. 4 THE COURT: Yeah, but I learned that November 18, and 5 they didn't. 6 Ms. Goldman? 7 MS. GOLDMAN: There may be some misimpression of what 8 the final orders are going to be. The final order that will be 9 issued, the first final order will be a final order that the 10 plaintiffs can petition for review on, and it will address the 11 issues of the process or the policy that TSA has invoked in 12 this case, that is, the decision not to grant an extension to 13 the plaintiffs from the non-disclosure policy. So that will be 14 in a posture such that plaintiffs can proceed to the Second 15 Circuit immediately on that, and the other two orders are going 16 to follow quite shortly after that. So it does not appear to 17 be any barrier to consolidation, if that's what the parties 18 choose to do. So I think the issue will be joined quite 19 shortly and I'm not sure that proceeding with depositions will 20 short circuit that process. 21 THE COURT: We discussed this before. We discussed 22 very much whether or not there should be a protocol before a 23 tender of issues for a final determination on subsequent 24 points. You argued for a protocol first, I expressed myself as 25 against that idea, but it seems that you won. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 61ttsepc Conference 1 Look, I can't move a case, I'm just the judge. It's 2 you folks who have to move the case, specifically it is the 3 plaintiffs who will have to move the case. And like every 4 other case, you have to make difficult judgments in terms of 5 how long to engage in issues of protocol and process and when 6 to close in on actual depositions and rulings and progress. 7 Because if there's money, it's coming with a trial, and we're a 8 long way off from a trial date or even knowing how a trial will 9 shape. 10 I intrigued you, Mr. Moller, perhaps to be less 11 patient and nice and fix the dates. If there are disputes, 12 I'll deal with them if I have jurisdiction to deal with them. 13 MR. MOLLER: We get the message. 14 THE COURT: But even if there are issues which I don't 15 have jurisdiction, there are ways to move on and create a 16 record. 17 All right. To the extent that my message on 18 November 18 was unclear, I hope it is now clear. I hope you 19 will move forward. 20 Is there anything more that I need to learn on 21 category four? 22 MR. MOLLER: There's no light we can shed on it 23 beyond -- 24 THE COURT: Have you staked out a set of parameters 25 and how many final determinations and on what issues you will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 61ttsepc Conference 1 need to go forward to the Court of Appeals? Because you're not 2 going to get there until there's a full consolidation of all 3 these sequences of orders. And mark my words, if you're just 4 dealing with protocol who can see, I believe the Second Circuit 5 will wait to see on what you're interested to see. 6 MR. MOLLER: I think when we have the first order 7 we'll know what our response will be. It's hard to anticipate 8 how we're going to go forward with the agency on the basis of 9 their order. There's nothing that we can appeal without 10 getting orders to look at. 11 THE COURT: I suggest you, Mr. Moller, get into 12 depositions. 13 MR. MOLLER: That's what we're going to do. 14 THE COURT: And put your questions in depositions and 15 shift the burden. All the leverage is in the TSA. They're 16 short staffed, they don't have all their procedural rules in 17 place, and given the best of efforts, it's not going to be 18 swift. But things have a way of shaping themselves when there 19 is no more time, and if you ask the question at the deposition 20 and an objection is made, that could come as a final order. 21 MR. MOLLER: We will notice the depositions, there's 22 no question about it. I think the defendants who are behind me 23 should keep in mind that when they're noticed, that we're not 24 going to be able to be very accommodating, too accommodating 25 with respect to scheduling, otherwise we'll never get anyplace. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 61ttsepc Conference 1 THE COURT: I would like the parties to have a 2 schedule on the long-term, double tracked, and I would like to 3 so order the schedule. And because of the numbers of parties 4 involved, and because of the strong public interest in moving 5 these cases somewhat faster than they have been moving until 6 now, I think the issue of conveniences have to be compromised 7 in preference to the interest of efficiency and progress. 8 Which brings me to number five on the agenda. 9 Mr. Moller and his staff were kind enough to give me the 10 attachment showing me the numbers of defendants in each 11 category of lawsuit. What can we do? 12 MR. MOLLER: Your Honor, the claims against 13 non-carrier defendants, we will give the Court a list within 14 five days of the non-carriers who have been dropped. And I 15 understand from my co-counsel that they are receiving or 16 soliciting affidavits or other documentary evidence which will 17 help us evaluate whether or not other non-carriers should be 18 dropped once they -- and they will be, once they establish that 19 they have nothing to do with the case, or if they're able to 20 establish that they have nothing to do with the case. But that 21 process is underway, you'll have a list in five days as to who 22 is out. 23 THE COURT: Better than a list will be a stipulation 24 or a motion to dismiss them from the case. 25 MR. MOLLER: If that can happen within five days, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 61ttsepc Conference 1 can't tell you, but we'll get you the stipulation. 2 THE COURT: Let's do number one. Mr. Barry has been 3 reporting weekly on the status of settlements. At first there 4 was eleven, and we have been at number ten for two months now. 5 MR. BARRY: Eleven. 6 THE COURT: We were at ten for a long time, now we 7 have eleven. Settlements have been approved by me in two 8 cases. There's another motion that just came in that I didn't 9 look at yet. Then how much time do we need until all those 10 eleven are the subject of motions to approve? 11 MR. BARRY: I would expect, your Honor, that we would 12 be able to get all those motions in to you probably within 30 13 days. There are just some settlements that have -- 14 THE COURT: I urge you, all of you who are involved in 15 the settlements, to get the papers done, get them approved. I 16 just feel frustrated that the cases are not moving as quickly 17 as I think they should move. 18 MR. BARRY: I think with the initial orders and the 19 first two I think it's going to move along quickly. 20 THE COURT: Which leads me to the point of settlements 21 themselves. What can be done to move the number along? I 22 think the settlements that have been reached have been reached 23 mostly with Mr. Moller's firm and Mr. Baumeister's firm; am I 24 right? 25 MR. BARRY: That's correct, and a couple of others. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 61ttsepc Conference 1 THE COURT: There are some other law firms with a 2 large number of cases? 3 MR. BARRY: That's correct. 4 THE COURT: Motley Rice is how many? 5 MR. BARRY: 52. 6 THE COURT: Why are they so shy? 7 MR. BARRY: You have to ask Mr. Rice, he's right in 8 the first row. 9 MR. RICE: Your Honor, we had three meetings scheduled 10 with Mr. Barry and his group since the last hearing, all of 11 which are been cancelled by the defendants because they said 12 they weren't ready. 13 We have given them revised numbers. We were expecting 14 in the first week in January some revised offers. Mr. Barry 15 said he was not in a position to do that. I talked with him 16 about a week ago, he was going to get back to me. He still 17 hasn't, and I think he maybe has some of the same frustrations 18 I do. And frankly, your Honor, one of the things that we are 19 going to ask you to do is move us to mediation because we're 20 not going to do that ourselves. 21 THE COURT: I wanted to do that before, but I don't 22 know if it was you or one of your colleagues said it was 23 premature. 24 MR. RICE: I think we didn't get it, we would like to 25 move to mediation. We think there are a number of parties SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 61ttsepc Conference 1 involved both on the plaintiff's side and the defense side that 2 mediation can't hurt. We're not doing too good now. 3 THE COURT: I agree. What should we do? 4 MR. RICE: I think we should go to mediation. 5 MR. BARRY: And the defendants are in agreement, your 6 Honor, in respect of the unsettled cases. 7 MR. RICE: I'm speaking for Motley Rice, I don't know 8 what the Court's pleasure is with other people. Other people 9 may be having better success of dealing with it. 10 THE COURT: I think if we were to make significant 11 progress in your group of cases that might encourage others as 12 well. Do you have any thoughts on the process of mediation? I 13 had reached out to three people to serve as a mediating board, 14 and that was done maybe a year and a half ago, but if you have 15 your own agreed mediator, that's also okay. I have no brief on 16 any particular person other than the person who can be 17 effective. 18 MR. RICE: Can I know the three first? 19 THE COURT: Yes. Former Judge Sofaer, who is at the 20 Hoover Institute at Stanford and teaches at Stanford Law 21 School; Pat Hynes, who is a retired partner of Milberg Weiss; 22 and Jay Lefkowitz of Kirkland and Ellis, formally chief of 23 President Bush's domestic policy planning and who had a very 24 strong hand in drafting the regulations that led to the 25 appointment of Ken Feinberg, but he was not at all involved in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 61ttsepc Conference 1 Mr. Feinberg's processes. Mr. Lefkowitz is in active 2 litigation practice but expressed interest and willingness to 3 participate, as did Ms. Hynes and Judge Sofaer. 4 MR. MOLLER: Your Honor -- 5 THE COURT: I have no brief for using anybody in 6 particular. 7 MR. MOLLER: Let me talk to the issue of settlement 8 and mediation. As you know, we settled some of our cases, but 9 most of our cases are unsettled. The Motley Rice's cases are 10 unsettled, and you have a list in front of you. 11 The reason we were resistant to mediation is because 12 we wanted the process to work without interference and thought 13 we would have more flexibility and an opportunity to achieve 14 results that haven't materialized. There have been substantial 15 discussions between Joe Rice, myself and Des Barry, and I 16 believe that we are close to agreeing upon a mediator. We're 17 not quite there yet, but maybe it's measured in terms of hours 18 but not in terms of weeks. 19 THE COURT: Do you have someone in mind? 20 MR. BARRY: Yes, your Honor, Mr. Rice had suggested 21 Sheila Birnbaum. 22 THE COURT: Outstanding. I have known Ms. Birnbaum a 23 very long time, and I can't think of anyone who would be more 24 qualified than she. And she's in the city. And she said she 25 would be interested? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 61ttsepc Conference 1 MR. BARRY: I have spoken to her, your Honor. She's 2 available and she's interested. 3 THE COURT: I think that's fantastic. 4 MR. RICE: And she'll come south. 5 THE COURT: Mr. Rice is a New Yorker, she defines 6 south as Passaic. 7 MR. MOLLER: The point is that we're obviously close, 8 and not everybody has the same sense of comfort, but we just 9 started. 10 THE COURT: For what it's worth, I have known Sheila 11 Birnbaum a really long time, and I consider her a very good 12 friend. We're not social friends but we're professional 13 friends. There's no one who knows the law and the perspectives 14 from plaintiffs' and defendants' side better than she. She has 15 counseled all kind of companies and individuals. 16 MR. RICE: Your Honor, I recognize her practice is 17 predominately on the defense side. 18 THE COURT: But she started out -- 19 MR. RICE: I frankly don't. My point being this is 20 not a two-sided negotiation, there are a lot of different 21 issues on the defense side. 22 THE COURT: She was a plaintiff's lawyer before she 23 was a defense lawyer. 24 MR. RICE: She must have forgotten that. 25 THE COURT: I don't think she's ever forgotten who she SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 61ttsepc Conference 1 is and where she came from. She is, I think, one of the 2 preeminent people who could do this. 3 MR. RICE: For Motley Rice's cases, I agree to 4 Ms. Birnbaum. 5 MR. BARRY: From the settling defendants point of 6 view, we're in agreement. 7 THE COURT: Frankly, if she has got an agenda for 8 either side she can't be an effective mediator. She has to win 9 the trust of both sides because you can always walk out of 10 mediation if you don't like the mediator. 11 MR. MOLLER: The conversation that you are listening 12 to is evidence of how close we are to moving this thing 13 forward, and I think we can resolve that in a matter of hours. 14 Then we have to set up a process, because not everybody is 15 on -- if she's going to be the mediator for every case, some 16 people have not yet come on board to say yes. 17 THE COURT: The better is always the enemy of the 18 good. If you have got cases of you two gentlemen and 19 Mr. Barry's consent, you have got what you need. The other 20 cases, we'll worry about the other cases later. 21 MR. MOLLER: We don't disagree, but I can't speak for 22 the universe. 23 THE COURT: Don't. Speak for yourself, just for 24 yourselves. 25 MR. RICE: Your Honor, as I understand it, your Honor SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 61ttsepc Conference 1 is to give us, Motley Rice and the defendants, an order to go 2 to mediation with Sheila Birnbaum as mediator. 3 THE COURT: You don't need an order, just go. What I 4 need to do is give you a time frame. 5 MR. RICE: We need an ending time frame. 6 THE COURT: How about 30 days? 7 MR. RICE: That's fine with me. 8 THE COURT: See what you do in 30 days. 9 MR. BARRY: 30 days to do what? 10 THE COURT: To run as many cases through mediation as 11 you can. 12 MR. BARRY: Starting in 30 days? 13 THE COURT: No. 14 MR. BARRY: From now? 15 THE COURT: From now, 30 days, do as many cases as you 16 can. 17 MR. BARRY: I think that's extremely ambitious, but 18 we'll abide -- I haven't even talked to Sheila Birnbaum to see 19 what her schedule is. 20 THE COURT: That's a problem. 21 MR. MOLLER: That's why I'm suggesting we get back to 22 you in a day or so so we have these things ironed out. We have 23 90 percent of it done. 24 MR. BARRY: Give us a week to talk to Sheila Birnbaum 25 and we'll see what we agree on. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 61ttsepc Conference 1 THE COURT: And start with the Motley Rice cases and 2 some of your cases, Mr. Moller. 3 Baum Hedlund? 4 MR. GREAVES: John Greaves, Baum Hedlund. 5 We have been in negotiations. It's been painful, it's 6 been slow. We're making progress. We think mediation would 7 help. In the United cases we haven't made any progress at all, 8 so we're definitely on board there. 9 THE COURT: So I think you ought to try to set up a 10 process where Mr. Rice starts with some and then Mr. Moller 11 adds some, Mr. Greaves adds some and see how many you can do in 12 30 days. 13 MR. MOLLER: Keith Franz has Flight 77 cases. 14 MR. FRANZ: Yes, we welcome the opportunity to discuss 15 things in a serious manner with the defendants. We have been 16 quite frustrated by the pace of the negotiations to this point. 17 THE COURT: All right. So let's see what we can do. 18 Why don't we have a telephone conference in a week. Mr. Barry, 19 would you organize it? And we'll have a date that we'll set 20 and we'll see if we can develop a protocol of some sort. And 21 I'll tell you, I don't I think that we need much of a protocol. 22 MR. MOLLER: Just is she ready and time and place. 23 THE COURT: The question I would have in mind is, 24 because I think Ms. Birnbaum is still active in Skadden Arps, 25 is whether she can accommodate the pressures that would be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 61ttsepc Conference 1 imposed on her by having to do some of these. That was one of 2 the reasons I had three going. If that is a problem, and if it 3 is satisfactory to you, we could add some of the three that I 4 have mentioned. 5 MR. RICE: Let us, if you would, let us talk to 6 Ms. Birnbaum and see what we would be able to do. I don't 7 think we're going to bite off 51 cases at one time, but if we 8 can -- we have actually got 15 or 16 cases that are further 9 along than the others, and I think the intent is to try to 10 focus on those, and we should be able to focus on those with 11 Ms. Birnbaum in a short period of time. 12 MR. MOLLER: If we focus on the first bundle of cases 13 it will set the parameters for the others. That's what we'll 14 try to discuss with you. 15 MR. BARRY: Ms. Birnbaum told me she was generally 16 available, but I don't know the particulars of her schedule. 17 THE COURT: Call before she gets another one. 18 MR. RICE: Your Honor, I would ask, though, that you 19 consider item six in conjunction with this discussion, because 20 I think the comment you made a while ago that things have a way 21 of shaping up when time is short is very appropriate in this 22 regard. 23 THE COURT: I'm going to decline to do that, Mr. Rice, 24 because -- just let me come back to it a moment. I hope this 25 doesn't adversely affect the discovery schedule. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 61ttsepc Conference 1 MR. MOLLER: It will not. 2 THE COURT: Because I don't want relaxation on the 3 discovery schedule. 4 MR. MOLLER: It won't. 5 THE COURT: To go the point, Mr. Rice. 6 MR. MOLLER: Although it's number six on the agenda, 7 it's really number one on our to-do list. 8 THE COURT: And I'm not bound by your numbers. 9 Mr. Williamson wants to make a point, too. 10 MR. MOLLER: The significance of a trial date is that 11 it puts the engine behind the mediation and gives us a better 12 chance of success. We know there is stuff to be done between 13 now and the time of trial, but if there is a date by which 14 everybody knows they're going to have to be in court and put up 15 or shut up, it will make a big difference in the success of 16 mediation. 17 THE COURT: In the ordinary case I would set trial 18 date because there's so many lawyers here that it needs to be 19 done and it needs to be done early. But in this case I decline 20 to do that because it's my judgment that the TSA issue is 21 overwhelming at this point. 22 If you can get around the TSA bar on discovery, the 23 case will shape itself in one direction. If there is a 24 discovery bar, we will be dealing with all kind of presumptions 25 and rulings that need to be made. It will be a different kind SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 61ttsepc Conference 1 of case, and I'm not prepared at this point in time, and I 2 don't know at this point in time how to deal with the issue. 3 So I decline to do that. 4 But I just want to tell you this: I'm current in my 5 cases. I have a trial schedule that is full through May but 6 not beyond. And so far in my seven and so on plus years as a 7 judge I have tried cases as they are ready. I will try you 8 when you are ready. You will not have a long wait, I promise 9 you that. So let's not worry about setting a fictitious trial 10 date which everyone knows will have to be adjusted. 11 MR. RICE: Your Honor, I ordinarily will not do this, 12 but I think I owe it the families to try to convince you 13 otherwise in this regard. There are twelve cases involving 14 Flight 93, there is no property damage issues in 93. Two law 15 firms, my firm has ten cases and I believe Mr. Greaves has the 16 other two cases. 17 MR. GREAVES: That's correct. 18 MR. RICE: There's not a lot of complicating factors 19 in that case. We ask at least that you set a trial date on 20 Flight 93 so we can work back from that and move that forward. 21 We're pushing five years. 22 THE COURT: I know you're pushing five years, 23 Mr. Rice, I was talking to my staff about just that particular 24 point. It's not necessarily five years as you count most 25 litigation because we waited about a year and a half for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 61ttsepc Conference 1 special master first without anything happening and various 2 protective procedural devices going on in court during that 3 period of time, and thereafter there were other reasons for 4 holding back. And I think you know my own frustration in the 5 last six to nine months because I have expressed it more than 6 one time. 7 We're not ready for trial date. I'm not going to set 8 a trial date because any trial date at this point in time will 9 be arbitrary and meaningless and everyone would know that. So 10 I will not do something cosmetically. When it's time to set a 11 trial date, you will have it very quickly, I promise you that. 12 MR. RICE: Thank you, your Honor. 13 MR. LATTO: Your Honor, there's an issue, if you could 14 return to the procedure with respect to the settlement of 15 Flight 93 and 77. As your Honor knows, our firm settled all of 16 its September 11 cases many months ago. And there is an issue 17 that has been raised by the defendants exclusively with respect 18 to 93 and 77 as to the settlement procedure process of getting 19 the approvals before your Honor. 20 It is our position, Judge, and Mr. Baumeister raised 21 it with the Court last time, that all we need to do in the 93 22 and 77 cases, Judge, is to submit an individual compromise 23 application to the Court seeking approval, especially where 24 there are minor children involved. The defendants, on the 25 other hand, have a different procedure set up where they want SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 61ttsepc Conference 1 to essentially mirror the procedure in 93 and 77 as to the 2 procedure that your Honor set up with respect to 11 and 175, 3 and we do not feel that that is warranted given the fact that 4 there are no property claims. The Port Authority and property 5 damage plaintiffs are not involved with respect to the crashes 6 of flight 93 and 77. 7 THE COURT: Refresh my memory as to what the 8 distinctions are. 9 MR. LATTO: The distinctions between the two 10 settlement procedures, as we see it, is there's a bundling of 11 settlements between Flights 11 and 175. 12 THE COURT: That was because of various of plaintiffs' 13 attorneys wanted confidence. 14 MR. LATTO: It was primarily, though, because, your 15 Honor, the property damage plaintiffs have an interest in 16 seeing the liability cap reduced with respect to their claims 17 because the property damage -- 18 THE COURT: Let me express myself to the point. The 19 issue has to do with the litigation cap, the exposure caps. 20 MR. LATTO: That is correct. 21 THE COURT: If someone settled for more than the fair 22 worth, arguably that would cut into the potential for late 23 trying cases to obtain proper recovery. Mr. Clifford, who 24 represents the property claimants, has a legitimate concern 25 that there is money left over for his clients. Everyone has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 61ttsepc Conference 1 agreed to -- 2 MR. LATTO: But that concern does not apply in flights 3 93 and 77 where there is no property damage claims. 4 MR. MOLLER: Your Honor, we recognize the property 5 damage parties' interest in the cap issue. The cap issue is 6 only relevant to 11 and 175 because there is no property damage 7 in 93 and 77. Therefore, 93 and 77 cases wouldn't settle, so 8 they should be going to the Court with a compromise order and 9 be finished. 10 THE COURT: I have no problem with that. 11 MR. MOLLER: The other thing is the stipulation that 12 applies to 11 and 175, we're still not comfortable with the 13 stipulation that is being circulated because appendices and 14 attachments still seek the disclosure of cases and amounts. So 15 we're still trying to work out this disclosure protocol and we 16 keep getting requests from the defendants, I think primarily -- 17 THE COURT: Mr. Williamson. 18 MR. MOLLER: -- Mr. Williamson to receive information. 19 I thought that we resolved that the bundling of numbers in 11 20 and 175 would be sufficient, and we agreed that the stipulation 21 could provide that if a party -- 22 THE COURT: We have so agreed. 23 MR. MOLLER: That was with respect to Saldor, I don't 24 think it applied to anyone else. 25 THE COURT: It was my intent it was generally. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 61ttsepc Conference 1 MR. MOLLER: Then we're okay. 2 THE COURT: Let me finish Mr. Latto's point. How do 3 you want to proceed, Mr. Latto? 4 MR. BARRY: Your Honor, I may be able to help out and 5 shortcut this whole thing. 6 I agree with Mr. Latto and Mr. Baumeister that in 7 respect of Flight 77, American 77 and United 93, there are no 8 property damage claims. If Mr. Clifford's clients and 9 Mr. Williamson's clients will stipulate that they are not going 10 to claim that they have any right in the proceeds, the 11 insurance proceeds for Flight 77 and 93, I think we can do 12 exactly what Mr. Latto has suggested, and that is settle these 13 cases, get an infant compromise order of whatever it might 14 be -- 15 THE COURT: Why do we have to ask them for 16 stipulations? 17 MR. LATTO: That's my point, they shouldn't have to be 18 put through that process. 19 THE COURT: Just submit your motions on notice. Let 20 them have the burden of raising any objections. 21 MR. LATTO: Thank you, your Honor. 22 THE COURT: All right. 23 Mr. Williamson? 24 MR. WILLIAMSON: Good afternoon. As to Mr. Latto's 25 point, we had no quarrel; we said nothing, we took no position, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 61ttsepc Conference 1 so we weren't standing in the way. 2 THE COURT: So Mr. Latto will just file his motion. 3 MR. LATTO: Thank you, your Honor. 4 MR. WILLIAMSON: With respect to Mr. Moller's point, 5 just so we don't gloss over some of the issues, he's right, we 6 are the ones trying to push forward the proposed stipulation 7 and order because when we came here on November 18 and tried to 8 work it out, your Honor gave us guidance and said they could 9 bundle cases up to five in amount and lump the settlements 10 amounts together up to five in amount, and we would receive the 11 settlement -- all the ground defendants would receive the 12 settlement evaluation materials, those being whatever the 13 plaintiff's counsel had chosen to provide to the aviation 14 defendants, we would simply get -- 15 THE COURT: No, the aviation defendants will know the 16 per case settlement. I proposed that you wouldn't know that, 17 you would know the aggregate of five settlements. 18 MR. WILLIAMSON: On the first point, absolutely right, 19 that's what I was calling the bundling of settling amounts. 20 There was a second point, in order to be able to 21 evaluate it so it's not in a vacuum, we went through last time 22 on November 18, you said that directly, that we would receive 23 the settlement evaluation materials; not the amounts, just what 24 was it that plaintiffs' lawyers sent to the aviation defendants 25 to evaluate. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 61ttsepc Conference 1 THE COURT: I don't think that I said that. If I did, 2 I didn't know what I was talking about, because those criteria 3 let you get the information that they want to be kept 4 confidential. 5 MR. WILLIAMSON: In fact I think not. To revisit, we 6 went through this whole thing last time on pages 22 and 23 of 7 the transcript, you said we get that. The lawyers, remember, 8 for Lune and Saldor came forward and said we have no problem 9 giving the same materials we gave to the aviation defendants. 10 THE COURT: That's because they didn't care, but 11 others do. 12 Mr. Moller, what is your point? 13 MR. MOLLER: You're right. 14 THE COURT: Mr. Williamson, that's my point. I'm not 15 giving you that. You know generally the criteria and that's 16 enough. 17 MR. WILLIAMSON: I couldn't catch that. 18 THE COURT: I'm not giving you the information you 19 seek. You're getting the aggregate of five settlements, that's 20 it. 21 MR. WILLIAMSON: Your Honor, I would like an 22 opportunity then, if that is your current thinking, to have 23 them make the motion and let us brief the point. It is 24 certainly inconsistent with your Honor's order of March 16 of 25 2005 where you said -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 61ttsepc Conference 1 THE COURT: File an objection to the next motion. 2 MR. MOLLER: Very well, your Honor, because we were 3 able last time to stipulate to everything, get it through -- 4 THE COURT: File your objection to the next motion. 5 MR. WILLIAMSON: Very well. 6 THE COURT: Mr. Clifford? 7 MR. CLIFFORD: Thank you, your Honor. I was only 8 going to give the input that the property damage plaintiffs 9 have been waiting for some insurance policies from UAL and 10 American, and that would be the only possible impediment to our 11 agreeing to what Mr. Barry suggested. 12 MR. BARRY: And that information is all forthcoming. 13 Your Honor had ruled early on in this docket to give certain 14 insurance information to the plaintiffs, which we did. 15 Mr. Clifford has now requested some additional information, and 16 we're gathering that for him, including actual policies. 17 THE COURT: Fine. Are there any are additional items? 18 MR. GRANITO: Frank Granito of the Speicer Firm. I 19 would like to speak on behalf of those who only have one case. 20 Inasmuch as discovery will be going forward at the same time as 21 mediation, I wonder if our those lawyers with single cases 22 could be slipped into the mix rather early in the mediation 23 rather than -- 24 THE COURT: Have you had any negotiations with 25 Mr. Barry directly? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 61ttsepc Conference 1 MR. GRANITO: Once, yes. 2 THE COURT: Mr. Barry, how do you feel about taking 3 single cases? 4 MR. BARRY: We have no problem with. 5 THE COURT: I think they're anxious to cut their 6 expense and try to see if they can make a settlement early. 7 MR. BARRY: Mr. Granito has had conversations with me 8 and the insurance principal in the case, but if he wants 9 mediation, I'm sure we can make accommodations for him. 10 MR. GRANITO: I'm perfectly willing to continue 11 discussions with Mr. Mehan, who I have been waiting for him to 12 get back to me for two weeks, but if there is to be mediation I 13 only ask that, for others similarly situated as I am, that we 14 not have to wait until the 52 cases of the Motley Firm -- 15 THE COURT: I'm not sure that you need to wait for 52, 16 but realistically, Mr. Granito, a large purpose of mediation is 17 to create parameters that will enable many other cases to 18 settle without mediation. That's not an effective target with 19 individual cases. It's most effective when you have a large 20 number of cases that is characteristic of what Mr. Rice has and 21 what Mr. Moller has and some others. So I think I would not 22 initiate your participation, at least for a while. 23 MR. GRANITO: I don't expect to be at the top, I just 24 don't want to be at the bottom. 25 THE COURT: We'll revisit this whole thing in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 61ttsepc Conference 1 relatively short period of time, so I won't forget you. 2 Mr. Moller? 3 MR. MOLLER: We'll get those cases into the mix. 4 THE COURT: But I think would rather see this 5 mediation be more efficient. Ms. Birnbaum doesn't have an 6 infinite amount of time, so efficient use of her time is at a 7 premium. That means it's got to be exercised in mediation 8 where numbers of cases can be effective. That's true with 9 Mr. Rice, it's true with you, it's true with the Baum Hedlund 10 matters. But I think the people with one or two cases need to 11 wait a bit and we'll revisit the situation next time we're 12 together. 13 Any other items? We need to set another date, and I 14 think about 45 days hence. 15 MR. MOLLER: I think we have a date, March 3rd. 16 THE COURT: March 3, that's probably good. Our next 17 date is March 3 at 1:00, and it's a combination meeting with 18 Mr. Clifford's cases, 21 MC 101. 19 We can do this. We can bring all this up. I'm not 20 sure we have a larger room possibility, we'll look into it. If 21 we do, we'll let Mr. Moller and Mr. Barry know to communicate 22 to the others, and we'll post it on the web page. 23 Have all of you found the web page convenient? Are 24 you looking at it? Is there anything that we can do to make 25 life easier for you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 61ttsepc Conference 1 Thank you very much, I'll accept that as a compliment. 2 See you March 3. 3 o0o 4 5 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