1 67L1911C 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 In re WTC Disaster Site Litigation 21 MC 100 4 4 ------------------------------x 5 New York, N.Y. 5 July 21, 2006 6 2:10 p.m. 6 7 Before: 7 8 HON. ALVIN K. HELLERSTEIN, 8 9 District Judge 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 2 67L1911C 1 APPEARANCES 1 2 MOTLEY RICE LLC 2 Attorneys for Plaintiffs Burnett, et al. 3 MICHAEL ELSNER 3 ROBERT T. HAEFELE 4 4 KREINDLER & KREINDLER 5 Attorneys for Plaintiffs 5 MARC S. MOLLER 6 JUSTIN GREEN 6 7 CLIFFORD LAW OFFICES 7 Attorneys for Plaintiffs 8 ROBERT A. CLIFFORD 8 TIM TOMASIK 9 9 AZRAEL, GANN & FRANZ 10 Attorneys for Plaintiffs 10 KEITH S. FRANZ 11 11 GREGORY P. JOSEPH LAW OFFICES 12 Attorneys for Plaintiffs 12 GREGORY P. JOSEPH 13 DOUGLAS PEPE 14 QUIRK & BAKALOR 14 Attorneys for Defendant United Airlines 15 JEFFREY J. ELLIS 15 16 MICHAEL FEAGLEY 16 Attorney for Defendant United Airlines 17 17 CONDON & FORSYTH, LLP 18 Attorneys for Defendant American Airlines 18 DESMOND T. BARRY 19 19 DEBEVOISE & PLIMPTON 20 Attorneys for Defendant American Airlines 20 ROGER E. PODESTA 21 21 U.S. ATTORNEY'S OFFICE 22 Attorneys for Defendant United States 22 BETH GOLDMAN 23 SARAH NORMAND 23 24 CAMPBELL CAMPBELL EDWARDS & CONWAY 24 Attorneys for Defendant US Airways 25 RICHARD P. CAMPBELL SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 67L1911C 1 APPEARANCES (Continued) 2 FLEMMING ZULACK WILLIAMSON ZAUDERER LLP 2 Attorneys for Defendants Port Authority of New York and 3 World Trade Center 3 RICHARD A. WILLIAMSON 4 M. BRADFORD STEIN 4 5 SCHIFF HARDIN 5 Attorneys for Defendants Port Authority of New York and 6 World Trade Center 6 BETH JACOB 7 7 GREENBAUM ROWE SMITH & DAVIS 8 Attorneys for Defendant Con Edison 8 FRANKLIN M. SACHS 9 9 SUSMAN GODFREY 10 Attorneys for Defendant Huntleigh USA 10 H. LEE GODFREY 11 11 SIMPSON THACHER & BARTLETT 12 Attorneys for Defendant Argenbright 12 JOSEPH WAYLAND 13 13 O'MELVENY & MYERS 14 Attorneys for Defendant 14 MARK WOOD 15 15 CONNELL FOLEY LLP 16 Attorneys for Defendant Colgan Air, Inc. 16 JONATHAN MITTERY 17 17 JONES HIRSCH CONNORS & BULL 18 Attorneys for Defendant Globe Aviation Services 18 JAMES P. CONNORS 19 19 LORD BISSELL & BROOK 20 Attorneys for Defendant Globe Aviation Services 20 GARY WESTERBERG 21 21 WARDEN TRIPLETT GRIER 22 Attorneys for Defendant 22 JENNIFER E. SHAFER 23 MICHAEL J. KUCKELMAN 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 67L1911C 1 (Case called) 2 THE COURT: This is almost as good as a night at the 3 movies. 4 Mr. Barry, would you like to report on the status of 5 settlements? 6 MR. BARRY: Yes, your Honor. We've negotiated 7 settlements of 32 wrongful death -- 8 THE COURT: I'm sorry. There are some chairs, seating 9 room on the -- on my right. In that far corner. Obstructed 10 vision so you'll have a refund. I think there's some more room 11 for some other people. 12 (Discussion off the record) 13 THE COURT: Sorry, Mr. Barry. Go ahead. 14 MR. BARRY: We've negotiated settlements of 32 15 wrongful death cases to date, your Honor. We've got about 64 16 cases, claims, actually, less cases remaining. We've got 17 mediations scheduled in August with the Motley Rice firm so 18 far. We are in constant communication with Miss Birnbaum in 19 respect to scheduling. We've given her a calendar of every day 20 we are available for the entire month of August. So we're 21 proceeding with -- with mediations at a rate that we hope to 22 improve settlement posture by the end of the summer. 23 THE COURT: From your perspective, are there any 24 issues that I should address? 25 MR. BARRY: No, your Honor. I think -- I think we're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 67L1911C 1 doing fine. I know we had a meeting this morning in respect of 2 the settlement documentation and we -- I think we've -- we've 3 established the procedures so that the paperwork is done on an 4 ex -- as expedited a basis as possible. And I would like to 5 avoid -- 6 THE COURT: I think. 7 MR. BARRY: -- individual -- 8 THE COURT: Well, we might as well indicate what they 9 are. Within 21 days after a settlement is agreed to with 10 Ms. Birnbaum, Mr. Barry and his colleagues are to prepare their 11 papers and have them forwarded to plaintiff's counsel. Why 12 don't you go through them. You probably know them better than 13 I do. 14 MR. BARRY: We would send -- if the settlement's 15 negotiated, under the conditions of settlement that we agreed 16 beforehand, we've got 21 days to submit a stipulation of 17 settlement to the plaintiff's attorneys. That time period is 18 much shorter, Judge. We can -- 19 THE COURT: The actual time. 20 MR. BARRY: The actual time period. We've got all the 21 papers done. It's boilerplate. We can do it in, you know, 22 less than five days. And my associate, Morgan Zam, has got it 23 all down to a science. Once we get that stipulation back 24 signed, we submit an order to your Honor approving the 25 settlement -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 67L1911C 1 THE COURT: Well, it's signed by the plaintiffs' 2 lawyer. 3 MR. BARRY: By the plaintiffs' lawyer and by the 4 representatives of the defendants. 5 THE COURT: Then it goes back to you. 6 MR. BARRY: And the insurers. 7 THE COURT: And it goes back to London, but it comes 8 back almost the same day or the day after. 9 MR. BARRY: Essentially, yes. And that's been working 10 very well with the ones that have to go to London for 11 signature. 12 THE COURT: But then it comes to me for approval. 13 MR. BARRY: Comes to you for approval. 14 THE COURT: And I've been giving you a one-day 15 turnaround. 16 MR. BARRY: You've been turning it around in a day. 17 So once that's done, the 30-day time period to appeal begins to 18 run. Once the judgment is -- is entered, that time to appeal 19 begins to run. Once that 30-day period expires, under the 20 conditions of settlement, we have 30 days to make payment. 21 Once again, we've been making payments well within that 30-day 22 period, in most instances. 23 THE COURT: And money has been flowing. 24 MR. BARRY: Yes, sir. Yes, sir. 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 67L1911C 1 MR. BARRY: We'd certainly like to avoid -- 2 THE COURT: I want everyone to be aware of that, that 3 this has now become a substantially routinized -- I met this 4 morning over an issue of language and I persuaded plaintiffs' 5 counsel that the language need not be changed. There's a high 6 desire not to meddle with the language that's been fixed, 7 because to do so, to start meddling with that language and 8 start negotiating this point or that point would inevitably 9 cause delays, and it's my very strong desire that those who 10 settle should get their money very rapidly. This has the 11 highest priority in my office. Ms. Cheetham processes them 12 within hours of receipt, and I sign immediately after that. So 13 there was no delay in chambers. Mr. Barry has routinized his 14 procedures with Ms. Zam, and signatures are obtained very 15 promptly and papers are flowing very promptly, so there's no 16 delay, as there should be no delay, on the plaintiffs' side, if 17 this works like a charm. 18 Now in connection with cases that settled in the World 19 Trade Center, there's a bit more of a procedure, and let's 20 speak to that. 21 MR. BARRY: Yes, your Honor. Well, we've agreed to 22 submit, in groups of three, the total amount of those 23 settlements because the property plaintiffs' attorneys want to 24 review that and pass on what they believe to be the 25 reasonableness of it and it's -- we've not run into any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 67L1911C 1 problems with that at all. 2 THE COURT: And we're sensitive to the need for 3 confidentiality with respect to the particular plaintiffs. So 4 we have a, at most, another three or four days of procedure. 5 MR. BARRY: They've been quite prompt, your Honor. 6 THE COURT: I'm very grateful to all of you for this 7 very substantial progress. And I really want to commend 8 everyone that's been concerned with the process. And although 9 Ms. Birnbaum is absent here, I think we could all agree that 10 this would not have happened without her. She's been 11 extraordinary. 12 MR. BARRY: She's been extremely helpful. 13 THE COURT: And the way that she's given herself to 14 attend to all the issues that have come up, not only legal, not 15 only money, but also with the required attention that people 16 need, because these are just not dry negotiations. Lives with 17 extraordinary potential have been wiped out. And I think the 18 process reminds people of what they lost. It is less of what 19 they gained and more of what they lost. So I'd like to commend 20 everybody in so proceeding, and I'm hopeful that we will have 21 even more progress to report in our next meeting, and 22 potentially all these claims will be resolved in this fashion, 23 because I think very strongly that the attention that the 24 parties are giving to these cases will deliver a better justice 25 than could be delivered after a difficult and expensive set of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 67L1911C 1 pretrial and trial proceedings leading to the uncertainties of 2 whatever the judgment might be. Thank you so much, Mr. Barry, 3 and all your colleagues, and all the plaintiffs who have been 4 involved in this process as well. 5 Mr. Moller, is there anything you want to report to me 6 from your perspective? 7 MR. MOLLER: Only to endorse the Court's recognition 8 of the contribution that Ms. Birnbaum has made by creating a 9 forum within which this dialogue could proceed. 10 THE COURT: Thank you. I know that the Motley Rice 11 firm is -- who's here from them? 12 MR. CLIFFORD: Right there, your Honor. 13 MR. ELSNER: Mike Elsner from Motley Rice, your Honor. 14 THE COURT: Yes. And you've been very much involved 15 in the process and you're becoming increasingly engaged in the 16 process. With that, I thank you. 17 MR. ELSNER: You're welcome. 18 THE COURT: And there have been also claims by lawyers 19 with just one claimant, and Ms. Birnbaum has been attempting to 20 deal with them as well. I think the first of those settlements 21 have come through. Mr. Barry? 22 MR. BARRY: Well, yes, your Honor. I was going to 23 address that in item number VII. We filed a motion in one case 24 for failure to prosecute, per your instructions. There will be 25 another one. And then there are three individual cases where SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 67L1911C 1 we're -- 2 THE COURT: Let me ask you to hold that until we get 3 to that. 4 MR. BARRY: Okay. 5 THE COURT: But there have been lawyers involved in 6 this process. Pfizer (phonetic) has had one case, I think. 7 MR. GRAFFINI: Yes, your Honor. Frank Graffini 8 (phonetic). I believe -- I was not present this morning, but I 9 believe that case was -- 10 THE COURT: That's done now. 11 MR. GRAFFINI: I believe so, your Honor, yes. 12 THE COURT: Substantially so. Thank you. And there 13 will be others who have pressed their cases and they are going 14 to be mediated as well. So I think, in one of our earlier 15 meetings, people complained or wanted to be given attention to 16 as well, but my belief is that all the plaintiffs' lawyers have 17 had their cases added by Ms. Birnbaum, all of those who wanted 18 to participate in the process. If there's any that have not 19 been given attention, I'd like to know that. 20 That's terrific. Thank you very much. 21 So we've done I and II. Which gets us to number III. 22 The status of TSA re-review of first and second wave documents, 23 and number IV, the certain aviation defendants' discovery 24 requests to TSA, and number V, the conduct of depositions to 25 begin September 11, 2006, in light of limited clearances by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 67L1911C 1 TSA. 2 Before I ask Ms. Goldman or Ms. Norman to report on 3 that, let me deliver one or two observations. First, 4 notwithstanding my order to limit those who will be involved in 5 the process of depositions where TSA and SSI may potentially be 6 involved, the lawyers, for very good reasons, had wanted to 7 enlarge the numbers involved in the process. It's not so long 8 ago that I used to be involved in cases that approached this 9 size, though not nearly as large as this, and I can understand 10 the need to have numbers of lawyers from each firm and each 11 party attend the depositions. But I delivered my order because 12 there were special circumstances that were involved here that 13 made this a different case from all other cases. I wanted the 14 number of lawyers who were cleared to be limited in order to 15 allow clearances to be effected without swamping TSA and 16 without giving reason to TSA to stop engaging in the process of 17 clearances. I was aware that the dynamics of -- of progression 18 with regard to SSI information made it more probable that there 19 would be a lot more information that would be disclosed and 20 would not be characterized as SSI. Nevertheless, it's unclear 21 where the demarcations would be. And rather than have the 22 artificiality of proceedings that engage in nonSSI information 23 followed by proceedings that involve potentially SSI 24 information and the delays that are inherent in that process, I 25 did not favor such a truncated process and wanted an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 67L1911C 1 expeditious deposition procedure that would be economical and 2 efficient and fair and be sensitive to the need of TSA where 3 there legitimately was such a need. And that I think assumed 4 that there would be a limited number of attorneys that would be 5 involved in the process, that provisions could be made to 6 assure fairness to all and that that would give the greatest 7 potential confidence to TSA to allow a proper deposition 8 procedure to unfold. Unfortunately, the lawyers became 9 involved in an adversarial process as to who should go and who 10 should not go and who should be there and who should not be 11 there. The consequence was to swamp TSA with an extraordinary 12 number of requests for clearance and the process has become 13 paralyzed, I think, and TSA has written to me stating that they 14 no longer wish to clear anyone and they no longer wish to have 15 any kind of protocol, reserving to themselves the right to 16 object and cause witnesses not to testify wherever the grounds 17 under the regulations or previous determinations by the TSA 18 gave rise to claims of SSI being compromised. 19 I think that states where we are at the present time. 20 I think you know my feelings, which are not consistent with how 21 things have developed. But I'm learning that I can't get all 22 my ways through this group, that this group has the ability to 23 override the judge, and somehow I've got to live with that as 24 well. 25 Anyway, Ms. Goldman or Ms. Normand, or both in unison? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 67L1911C 1 MS. GOLDMAN: Your Honor, we'll proceed in order, all 2 right? We're going to go back to status of re-review of 3 documents, if that's all right. 4 THE COURT: Yes. 5 MS. GOLDMAN: The first wave re-review is now 6 substantially complete. We have in the last week provided to 7 the defendants the bulk of the first wave documents, and 8 through a tremendous effort by TSA involving hundreds and 9 hundreds of hours and in fact pulling staff off other matters 10 to complete it, they have done that. There are a few odds and 11 ends remaining. A number of those odds and ends will be 12 completed in the next couple of days. There are remaining the 13 ASPs, of which there are four, and those are the Airport 14 Security Plans, and those will take probably another week to 15 ten days to get out. But then that would be completely done in 16 the next -- well, this is substantially complete. What's left 17 are odds and ends. They'll be done shortly. 18 The question now is what to do about the second wave. 19 And TSA's plan was to begin the second wave re-review 20 immediately upon completing the first wave. And that's still 21 the plan. But in light of the fact that that is a massive 22 undertaking, because it's 20,000 pages, and given that the 23 depositions are coming up in September, our suggestion would be 24 for the parties to consider which documents they have a 25 high-priority desire to get, that is, to make a list, maybe in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 67L1911C 1 the next couple of weeks, of key documents from the second wave 2 that they'd like to have before the depositions and, in fact, 3 if they'd like to do that on somewhat of a rolling basis, 4 knowing which witnesses are going first, ask for those first, 5 and after that, then if the number is reasonable and doable, 6 TSA will attempt to get those done in advance of the 7 depositions. But realistically, 20,000 pages are not going to 8 be re-reviewed before September 11th. So that -- that would 9 be our -- 10 THE COURT: Is there a list of depositions and dates 11 for such depositions? 12 MS. GOLDMAN: Not that we've seen yet, but I don't -- 13 the answer is no, apparently. 14 THE COURT: Mr. Moller, do you wish to respond? 15 MR. MOLLER: We don't have a -- we don't have a date 16 yet. We have some witnesses identified who we put -- 17 THE COURT: Mr. Moller, you need to be heard in the 18 back. 19 MR. MOLLER: Sorry. We have not communicated a formal 20 witness list or dates to the defendants, in part because that 21 list was going to be driven by some of the people identified in 22 the documents we expected the TSA to release to us. We did 23 communicate to the defendant that initial list when the 24 depositions were going to start sometime in -- in June. We're 25 amending that list and we will expand it. But as of now, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 67L1911C 1 can't be more specific. We plan -- the plaintiffs plan to meet 2 this week and next -- next week, this coming week and the week 3 after, to compile the best list that we can, given the status 4 of our information to date. 5 THE COURT: You've heard, Mr. Moller, that you will 6 get the first list, including the first wave, including the 7 airport security procedures, within two weeks, which puts us 8 into mid August, or first week in August. 9 MR. MOLLER: Right. 10 THE COURT: You've heard also that there will be some 11 but not all documents, probably a few but not many documents, 12 dealing with the second wave. What will be the impact of that 13 in terms of the depositions; can you tell? 14 MR. MOLLER: My hope is that the limited amount of 15 information that we're getting does not frustrate our ability 16 to put together a meaningful list. There are names of people 17 and people identified in documents that we do have that we will 18 list, but I -- I just don't know. It's -- I can't answer a 19 question without having a little better handle on what we're 20 getting. 21 THE COURT: My view is that you need to sacrifice the 22 better for the good, that you will not have the kind of 23 information you'd like to have in order to compile an 24 intelligent sequence of witnesses. And I think you should do 25 the best that you can to give to Ms. Goldman, in about a week SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 67L1911C 1 or so, a suggested sequence of depositions so she will be able 2 to focus TSA's energies on supplying documents that will be 3 pertinent to that sequence, plus whatever additional priority 4 documents you can identify. 5 MR. MOLLER: With all due -- I'm not sure that that -- 6 I'm not sure that that will work. I think what we -- what 7 we're planning to do is identify for the defendants the people 8 whose depositions we want to take, based upon all of the 9 information available to us. I don't think if I give 10 Ms. Goldman a list of the people we want to depose that TSA is 11 going to screen the 20,000 documents to find out whether their 12 names appear in a document. So it's sort of -- we're trying 13 to -- we're trying to accomplish exactly what you suggest and 14 that is put together the best list we can, given what we -- 15 given what we now know. But I am concerned with the 16 representation that we're going to have stuff in a couple of 17 days. When we were before the Court last time, we were told 18 that the SS -- the ACSSP was going to be out in a couple of 19 days, and frankly, it dribbled out at the end of last week, 20 just on the eve of this conference. In fact, I think it came 21 out at the beginning of this week. And probably to avoid the 22 embarrassment of not having it out by the time we got before 23 the Court, in view of the representations made more than a 24 month ago. So -- 25 THE COURT: What do you want me to do, Mr. Moller, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 67L1911C 1 when, in late August, you tell me that you haven't received 2 enough papers and you want to postpone the depositions? 3 MR. MOLLER: I'm not going to come back to this Court 4 and ask you to postpone the depositions. We will go forward 5 with the depositions as scheduled and do the best we can with 6 them. But I don't want TSA to frustrate the depositions by 7 assuming that just because we go forward that we are not 8 insisting that they produce the documents that they are now 9 re-reviewing, as quickly as possible. And it's -- while we're 10 not yet up to -- 11 THE COURT: What do you intend to do in response to 12 Ms. Goldman's suggestion that you deliver a priority list? 13 MR. MOLLER: We'll try to do that. I'm not sure that 14 we can, but we'll try to do that. We -- we've -- when we were 15 before the Court two years ago, we volunteered to sit down with 16 TSA and get them focused on what we wanted and ask them to help 17 us identify documents that we needed. 18 THE COURT: No one needs to remind me of the efforts 19 that have been made or the proposals that were put. 20 MR. MOLLER: I'm not sure -- 21 THE COURT: I'm aware of it. But let's work with 22 where we are now. I mean, I could criticize TSA from today to 23 tomorrow, take as much care as I can to exclude Ms. Goldman and 24 Ms. Normand from that criticism, but it won't get us anywhere. 25 MR. MOLLER: We're -- I can assure the Court -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 67L1911C 1 THE COURT: It won't get us anywhere. I don't appoint 2 them to offices, I don't promote them, I don't evaluate them, I 3 don't have any profile and personnel register. They're 4 completely independent of me. 5 MR. MOLLER: Well, we evaluate them and we've given 6 them a score. I won't -- but I can assure you that we're 7 trying to do exactly what you rightfully want us to do and get 8 as much material as we can, cooperate with the agency. We've 9 sat down with them many times. Hopefully if we sit down with 10 them again, it will help accelerate the process. The 11 plaintiffs are not the problem, and I frankly don't believe 12 that the defendants are the problem. 13 THE COURT: Well, one problem arises because there are 14 too many people who wanted clearances and now you're going to 15 have a frustration because we're going to have a truncated 16 deposition procedure. 17 MR. MOLLER: To be honest, I don't think that the 18 issue of clearances, or difficulty in issuing clearances was 19 ever a problem, no matter what TSA says. The process is too 20 mechanical. But -- 21 THE COURT: I differ. 22 MR. MOLLER: I think that when we read the letter of 23 July 20th that arrived either late yesterday or in our offices 24 this morning, the first thing that we -- first reaction was to 25 celebrate: No clearances required. Second -- second look at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 67L1911C 1 the letter may well suggest that we're back where we started, 2 because while they refer to your order of May 16th and quote 3 from it, they quote from it incompletely. 4 THE COURT: I want to tell you, Mr. Moller, had there 5 been a restricted list of people who engaged in depositions, 6 the ability and standing of TSA to prevent answers from issuing 7 would have been much less than they will be on the slate we now 8 have. And the plaintiffs are going to suffer. 9 MR. MOLLER: Time will tell. I hope you're wrong. 10 I'm taking -- when we were before the Court last time, I 11 suggested that we might be optimistic that TSA's obstruction in 12 this case might have diminished and we'll get more rather than 13 less. Ms. Goldman's letter to the Court suggests that they too 14 have seen the light and that there is less need for SSI 15 objections and instructions than they previously believed. If 16 that's right, we'll have constructive depositions, and maybe 17 the area of disagreement will be narrow enough to cause less 18 rather than more concern. If they're right, then the 19 plaintiffs will have advanced the ball. If you're right, we'll 20 all be disappointed and frustrated. 21 I think that what we have to do now is start the 22 depositions in the context that has been set by this last 23 letter and by the information we have and will get and see 24 where it goes. It may ultimately be that the Second Circuit 25 has to decide whether or not TSA is acting reasonably or not, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 67L1911C 1 and I would invite the Court to continue to exercise the 2 control over the depositions that was reflected in your 3 March 31st order and those that followed. 4 THE COURT: Before I get to you, Mr. Clifford, let me 5 ask Mr. Barry, or warn Mr. Barry, the procedure that is 6 suggested by the TSA is likely to lead to longer depositions of 7 witnesses and repetitive depositions of witnesses. And it 8 concerns me that there is a potential for oppression, at least 9 annoyance, as felt by different witnesses. Since they will be 10 the witnesses of your clients and your colleagues' clients, I 11 raise this point because it seems to me almost inevitable that 12 this will happen. 13 MR. BARRY: Well, I think, your Honor, that we have to 14 weigh what you've just described versus what would happen if we 15 excluded lawyers for parties from the deposition room. And 16 that, I'm sure, would guarantee multiple depositions because 17 the testimony would not be binding upon those attorneys who 18 would not be permitted to attend. 19 So when we received Ms. Goldman's letter, we had the 20 same reaction as plaintiffs' counsel, and that is, okay, our 21 biggest problem has now been obviated; we can have every 22 defendant represented at a deposition. Granted, there could be 23 questions or instructions made not to answer that would have to 24 be ruled on at some later time. 25 But as far as we're concerned, the more important SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 67L1911C 1 issue is representation at the depositions. And we see the 2 TSA's change in position as eliminating what we found to be 3 extremely, extremely prejudicial. So I -- I think, bottom 4 line, I think we've got to proceed and see how it goes. But I 5 think it's too early to tell what -- what exactly is going to 6 be the fallout. 7 THE COURT: Mr. Clifford? 8 MR. CLIFFORD: Thank you, your Honor. Robert 9 Clifford. 10 Judge, a couple of observations from the property 11 damage side. We were very taken aback by the letter, which I 12 wasn't able to read until I landed here this morning. I 13 couldn't get here yesterday due to the weather in Chicago. But 14 our reaction -- 15 THE COURT: I thought this morning wasn't much better. 16 MR. CLIFFORD: What you had today, we had all day 17 yesterday in Chicago. Mr. Tomasik, just as an aside, he sat at 18 the airport yesterday for about nine hours before he could 19 leave. 20 But we are very concerned about the change of position 21 of the TSA, and an issue that I'd ask the Court to consider 22 addressing now that hypothetically anyone could come -- any 23 party representative could come and ask questions at the 24 depositions, one thing that we do not have in place is some 25 direction from the Court about who it should be, if anyone. If SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 67L1911C 1 you want them on point, Mr. Moller's team, my team, whatever, 2 Mr. Williamson's team, to be taking these depositions and 3 lawyers can submit questions. That's one issue. 4 But going back to the documents, we do think that we 5 gravely run the risk of repetitive depositions unless at some 6 juncture the TSA makes a representation to the Court about some 7 date certain or end date for their review of the second and 8 third wave, whether it be, you know, a month from now or five 9 months from now. But -- 10 THE COURT: Ms. Goldman, how about a date for the 11 second wave? 12 MS. GOLDMAN: I don't think I -- I don't have that 13 information right now. But what I'd like to say about this is 14 that Mr. Moller and plaintiffs' counsel scheduled depositions 15 before the re-review was under way. The re-review is an effort 16 by TSA to release more information -- 17 THE COURT: Mr. Clifford -- Mr. Clifford, you get the 18 floor as soon as Ms. Goldman finishes. 19 MR. CLIFFORD: Right. That's what I -- 20 MS. GOLDMAN: So the notion that somehow -- we want to 21 give them the documents that they need to take depositions and 22 we do what we can to work with them to do that. But the notion 23 that somehow, by our undertaking a re-review, we're delaying 24 the depositions isn't accurate. 25 THE COURT: I want to get away from the blame game. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 67L1911C 1 We're where we are and I can't help it. I would like -- I 2 would like -- Ms. Goldman, I would like TSA to do all that it 3 has to do by the end of August. But my wishes are just idle 4 statements. They don't mean anything. 5 MS. GOLDMAN: The problem is this: The reality is, 6 it's 20,000 pages and it just can't be done. 7 THE COURT: Well, you know, 20,000 pages turn out to 8 be multiple pages of particular documents and they're a lot 9 fewer than 20,000 pages, and I think anyone who's done a 10 document review can know that there are two paradigms: one, 11 that which they tell the judge; and the second, that which 12 actually occurs in relationship to reviews, and the actual 13 reviews would be a lot less. And it's my strong belief that in 14 the space of two weeks or three weeks, all that needs to be 15 done can be done. 16 MS. GOLDMAN: Well, your Honor, I don't know if this 17 will be helpful at all, but just to get a sense of what it took 18 to review the ACSSP, which is a 250-page document -- it's a 19 dense document but it's a 250-page document -- it took the TSA 20 more than 500 hours to complete its redactions of the document. 21 And that's because it goes to multiple layers of review among 22 security personnel and it's not -- it's not something that's 23 done -- it's done line by line and word by word. So the 24 reality is, this is a very, very labor-intensive project and it 25 can't be done quickly in sort of a, you know, just look at a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 67L1911C 1 document like you would to see if a document is privileged, you 2 know, to see if, you know, whether it's from an attorney to a 3 client. It's a line-by-line review. So that being said, we 4 would like to work with the parties to come up with a priority 5 list so that TSA can just get started and do it. If they 6 don't, then we'll get started at page 1 and, you know, 7 they'll -- they'll do what they do. 8 THE COURT: Mr. Moller, next week. 9 MS. GOLDMAN: And with respect to the witness list, 10 your Honor, I don't think -- I mean, from our perspective, it 11 doesn't matter who the witnesses are, it matters what documents 12 they want. So we don't need their witness list at this point. 13 THE COURT: But it's hard to do that, isn't it? 14 MS. GOLDMAN: I understand. 15 MR. MOLLER: I don't want to take Mr. Clifford's 16 space. 17 MR. CLIFFORD: I'll waive it. 18 MR. MOLLER: We're asked to prioritize documents 19 without knowing what they are. 20 THE COURT: I know, I know. Do the best you can. 21 MS. GOLDMAN: But they have the documents, your Honor. 22 These are documents they have. It's just the fact that they're 23 going to be re-reviewed for -- to eliminate some of the 24 redactions. 25 THE COURT: They have these documents? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 67L1911C 1 MS. GOLDMAN: Yes. 2 MR. MOLLER: They've given us redacted documents. If 3 they want us to identify redactions that we would like to see, 4 you know, that's pretty -- that's, you know -- answers itself, 5 doesn't it? 6 THE COURT: Do whatever you can. Lay a foundation for 7 complaining to me later about that. 8 MR. MOLLER: I can tell you, we're going to start the 9 depositions on September 11th. If we get no more 10 documents -- 11 THE COURT: I've already heard that. 12 MR. MOLLER: But we want -- 13 THE COURT: Just take a red pencil and check off the 14 redactions you are most desirous to see and deliver it to 15 Ms. Goldman and make a record. It may be useful in the Second 16 Circuit. 17 Mr. Clifford, the floor is back to you. 18 MR. CLIFFORD: Well, I was just going to say, at the 19 moment I don't think I have anything that will add to the 20 discussion so I'll pass. 21 THE COURT: I want to ask you something. Since there 22 are going to be so many people in attendance, should I see if I 23 can get a magistrate judge to preside, or shall I allow it to 24 be self-regulated? Think about it. 25 MR. CLIFFORD: My reaction is let it be self-regulated SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 67L1911C 1 because what -- what we think now occurs is, TSA -- I mean, at 2 the risk of sounding like a broken record, we talked about 3 putting back on the schedule or the wish list a trial date, 4 because what they're saying to us now is that the TSA could sit 5 over in that corner, you could be having a witness on the stand 6 and us trying a case, they object to the introduction or answer 7 to a question on the basis of SSI, and no one can review that. 8 Well, you know, we don't need a magistrate judge to referee 9 that 'cause they're just taking over. 10 THE COURT: So the answer is that you don't think it 11 will do any good. 12 Ms. Goldman? 13 MS. GOLDMAN: I'd like to clarify something about the 14 letter of yesterday about the clearances. The only position 15 that's changed is with respect to the clearances themselves. 16 There's nothing about the way the deposition is going to 17 proceed that is different from what is in your Honor's order of 18 May 16th, which we intend to follow. 19 THE COURT: Excellent. 20 MS. GOLDMAN: And we don't believe anything that 21 Mr. Clifford has said about what we're doing with regard to the 22 depositions is different from anything that we've said before 23 or your Honor said. 24 THE COURT: Let's proceed on this basis and we'll see 25 what happens and -- and I'll reserve what I have to do in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 67L1911C 1 context as well. 2 Anybody else need to talk? Mr. Moller? 3 MR. MOLLER: I just wanted to make one observation. 4 The TSA, in its letter to you, refers to pages 5 and 6 of your 5 order of the 16th of May. 6 THE COURT: The whole order, not parts of it. 7 MR. MOLLER: Right. But they quote, TSA, clearly -- 8 the Court says, "Clearly, TSA should have a right to instruct 9 the witness not to answer questions that will elicit 10 information which TSA previously determined was SSI." 11 THE COURT: Mr. Moller -- 12 MR. MOLLER: That's in a March 17th order that's 13 been withdrawn. 14 THE COURT: The order is as it is. And this is the 15 operative document. Let's proceed on that basis. We're on 16 number VI, status of US Airways and Colgan discovery and a time 17 frame for filing motions for summary judgment. 18 Yes, sir. Your name? 19 MR. CAMPBELL: My name is Richard Campbell for US 20 Airways. 21 THE COURT: How are you, Mr. Campbell? 22 MR. CAMPBELL: Can I stand here? Can you hear me 23 okay? 24 THE COURT: Yeah, you're fine. 25 MR. CAMPBELL: I asked that this matter be put on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 67L1911C 1 agenda, and really it was by agreement with the lawyers 2 representing the plaintiffs that the matter should be brought 3 to the Court's attention. 4 We had a meet and confer in New York a short while ago 5 with respect to a new set of discovery requests that were 6 served on US Airways and also on another noncarrier airline, so 7 grouped by the Court, called Colgan. In any event, the scope 8 of this discovery directed to US Airways is as broad, equally 9 broad, as the scope of discovery directed to American Airlines 10 and United Airlines. 11 You might recall that US Airways, over the course of 12 this proceeding, has been in a bankruptcy proceeding, not once 13 but twice, and you might recall back -- I believe it was in 14 January of 2003 leading up to the Court's hearing of the 15 motions to dismiss, that the Court had some discussion with 16 Mr. Alexander at the hearing as to whether or not follow-on 17 motions to dismiss dealing with duty could be -- could be 18 pursued, and the Court ruled from the bench that no, you wanted 19 all motions with respect to duty to -- to be presented to the 20 Court at one time. 21 On behalf of US Airways, we presented a motion -- an 22 application to the Court to explain that, particularly with 23 respect to Rule 56 motions. And we said to the Court 24 effectively, look, Rule 56 motions with affidavit testimony and 25 the like are different from Rule 12 motions. We don't think SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 67L1911C 1 that the Court intended to include Rule 56 motions within the 2 scope of the order that you rendered from the bench. We 3 submitted a form of order to the Court, and your Honor saw fit 4 to execute that order in February of 2003. 5 When we submitted that proposal to the Court, we 6 outlined to the Court US Airways' involvement, which is a 7 broader term, it's a -- a term that I think is -- is -- goes 8 beyond anything that can fairly be described about US Airways' 9 involvement in this case. 10 But the point I want to make is that in February of 11 2003, we laid out in detail for the Court and for all of the 12 parties US Airways' position with respect to an insipient 13 Rule 56 motion. Now we chose not to file it prior to the May 14 hearing in 2003 because at the time your Honor was dealing with 15 very extensive motions to dismiss from various parties. So we 16 deferred in order for the Court to have the time to consider 17 those motions. 18 As it turned out, US Airways then began its process of 19 touring the bankruptcy courts on those two occasions. The 20 property damage plaintiffs in this case finally executed the 21 stipulation that relieves the plan injunction from the most 22 recent bankruptcy proceeding in May of this year -- in May of 23 this year. So it is our intent on behalf of US Airways now to 24 file the motion for summary judgment that we brought in -- in a 25 broad sense to the Court. We informed the Court about that in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 67L1911C 1 2003. 2 The meet and confer session that we had with our 3 brothers on the plaintiffs' side of the case broke down as to 4 whether or not US Airways should be subjected to a full scope 5 of discovery, which is their position, or whether US Airways 6 should be subjected to discovery effectively dealing with 7 anticipated Rule 56(f) affidavits saying that certain discovery 8 would be necessary in order to address the anticipated motion 9 for summary judgment. 10 THE COURT: US Airways -- remind me, US Airways 11 carried the terrorists from Portland to Boston, right? 12 MR. CAMPBELL: Actually, not so. US Airways licensee, 13 Colgan, the defendant Colgan, carried the -- two of the 14 individuals from Portland, Maine, to Boston. US Airways 15 aircraft was not involved in that. US Airways licensed -- had 16 a licensed relationship with Colgan at the time. But US 17 Airways or Colgan, no matter how you look at it, then deposited 18 two of these individuals at the US Airways terminal at Logan 19 Airport, which is fully separate and apart from either the 20 United Airlines terminal, which is probably a half a mile from 21 the US Airways terminal, and even from the American terminal, 22 which would require these individuals to leave the US Airways 23 terminal -- 24 THE COURT: So the point of your motion is that 25 because of this separateness, you should not be in the case? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 67L1911C 1 MR. CAMPBELL: Exactly correct, exactly correct. And 2 so the broad features of this motion were brought to the 3 attention of the Court back in 2003. If you recall at the 4 hearing in -- 5 THE COURT: So you'd like to make a motion and have a 6 stay of discovery, bottom line. 7 MR. CAMPBELL: I intend to file a motion. The 8 Court -- 9 THE COURT: You can have your motion, but there will 10 be no stay of discovery. 11 MR. CAMPBELL: Okay. If your Honor would recall, 12 when -- when you heard the motion to dismiss from the airline 13 operators, or when you heard the motion for summary judgment 14 from Continental and Air Canada and America West back in May of 15 2003, you limited discovery -- you ordered discovery but 16 limited it to the issues that were raised in the -- in their 17 motions to dismiss or motion for summary judgment. 18 THE COURT: That was then. Here we are now. You can 19 make your motion any time you want. There's no stay. 20 MR. CAMPBELL: Thank you. 21 THE COURT: In respect to that, since the facts are so 22 intensive, it's going to be very difficult to achieve success 23 on a motion at this point in time. And it seems to me that 24 your motion would be more advisedly made when there is 25 discovery. Otherwise, it's very easy for me to say motion SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 67L1911C 1 denied as premature. But you're free to make a motion. I 2 don't have any rule that requires a judge's permission before 3 motions are made. In all likelihood, if you make a motion, 4 I'll endorse the order that I just suggested. But feel free. 5 We're up to number -- let me -- we're up to 6 number VII, but let me -- 7 MR. BARRY: I think we missed number IV, your Honor, 8 which is -- I'll be very brief on that. 9 THE COURT: Go ahead. I did miss number IV, but I 10 didn't realize it's a separate category. 11 MR. BARRY: Certain of the aviation defendants have 12 served discovery on the TSA and FAA, in terms of document 13 requests and a 30(b)(6) deposition, that hopefully will be part 14 of the depositions in September. I just wanted to bring that 15 to the Court's attention and the fact that we have conferred 16 with Ms. Goldman and Ms. Normand and we're arranging a meeting, 17 I believe, to meet and confer on prioritizing this discovery in 18 Washington on the 2nd of August. 19 THE COURT: I've learned that nothing you say should 20 be considered lightly. So what is it that you want me to take 21 note of by this statement? 22 MR. BARRY: Just that something's going on, Judge, 23 that we have served this and that there is that discovery that 24 is going on parallel to any discovery that's going on by the 25 parties. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 67L1911C 1 THE COURT: All right. Anybody wish to comment on 2 that? Ms. Normand? 3 MS. NORMAND: Your Honor, Sarah Normand. TSA and FAA 4 are reviewing the discovery requests which were served a week 5 ago, but just a couple of points. They are staggeringly broad. 6 The -- the defendants have served requests that number 62 7 requests for each agency, FAA and TSA. One of the requests 8 alone asks for every document that the agency's submitted to 9 the commission, the 9/11 Commission. We're talking about 10 hundreds of thousands -- 11 THE COURT: So you're going to be needing to narrow 12 the list. 13 MS. NORMAND: Precisely, your Honor. The timing, 14 though, is also problematic. 15 THE COURT: Mr. Barry, is there somebody else in your 16 office who's working on this, I hope? 17 MR. BARRY: Yes, your Honor, several. 18 THE COURT: Because you have certain other activities 19 that you'll be engaged in during the month of August. 20 MR. BARRY: Yes, of which I'm well aware. Thank you. 21 MS. NORMAND: That's it from TSA, your Honor. 22 THE COURT: Thank you, Ms. Normand, very much. 23 I'd like to jump to number VIII. I've noted in 24 various letters that you've sent to each other, with carbon 25 copies to me, that you used the letters as trying to make SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 67L1911C 1 litigation points. I want you to know that I don't read those 2 letters. The first time I see that there is some statement 3 attacking someone else, I throw the letters in the wastebasket. 4 I don't want those letters. It's improper. You're not asking 5 me for anything, you're trying to take advantage of a point. 6 So I'm giving you fair notice, I don't read them. Once I see 7 such a statement, the letters are tossed. Don't make them. If 8 you want my attention on something, ask for my attention, ask 9 for my relief. I really don't want to know what you're saying 10 to each other. And I hope that what you say to each other, 11 notwithstanding all the tempers in this case and the high 12 feelings, pays attention to professional niceties. They're 13 very important. There's lots of things that we need to do. We 14 don't need to waste our time calling each other names. 15 Number VII, motions to dismiss individual cases for 16 failure to prosecute. I've seen the first one. The aviation 17 defendants' motion to dismiss claims of plaintiff Beth Baloff 18 Nadal (phonetic), for failure to prosecute. Do you want to say 19 a word about that, Mr. Barry, please? 20 MR. BARRY: Your Honor, at the -- I believe it was the 21 last hearing, you inquired about individual cases represented 22 by single practitioners, were we including them in mediations. 23 At that time I advised you that we were having some difficulty 24 in some of them in obtaining the requisite documentation or 25 damage information and you said, well, if you don't, to notify SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 67L1911C 1 all the lawyers involved, a couple of pro se as well, and if 2 you were not successful, if you didn't make any progress, to 3 make motions. So we did exactly as your Honor requested, we 4 wrote letters to the lawyer representing this plaintiff on 5 several occasions and got no reply. So we filed the motion. 6 THE COURT: Do you know the names now? 7 MR. BARRY: The names of? 8 THE COURT: Of the plaintiffs? One is Beth Baloff 9 Nadal. 10 MR. BARRY: Right. 11 THE COURT: And you said there are two others or three 12 others? 13 MR. BARRY: Well, there's another one, Joanne Formon, 14 F-O-R-M-O-N, and that -- that case, the Formon case, is -- 15 which is civil action 04 Civ. 7848, that is ripe for motion to 16 dismiss as well. And I believe that United Airlines is going 17 to make that motion. 18 THE COURT: Make it a joint motion. I've got a number 19 of papers. 20 MR. BARRY: There was a notice of service on that and 21 statute of limitations as well, but it will be made on behalf 22 of everybody. 23 The third is Lois Baxbum, B-A-X-B-U-M, 04 Civ. 7189. 24 We're in the process of obtaining or trying to obtain documents 25 so that is not ripe for a motion. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 67L1911C 1 Matthew Tansey, 04 Civ. 7213 -- 2 THE COURT: How do you spell the last name? 3 MR. BARRY: T-A-N-S-E-Y. That is also not ripe for a 4 motion but not yet ready for mediation. 5 And the final case is the pro se matter Suzanne 6 Merrill, M-E-R-R-I-L-L, 04 Civ. 7298. And we are in receipt of 7 some documentation, and I believe that can be scheduled for 8 mediation shortly. 9 THE COURT: All right. So really, it's -- there's two 10 cases. 11 MR. BARRY: Two motions. 12 THE COURT: Yes. Is there a lawyer for Beth Baloff 13 Nadal in this room? 14 Is there a lawyer for Joanne Formon in this room? 15 Make a motion. 16 MR. BARRY: Yes, sir. 17 THE COURT: And I take it that the Baxbum, Tansey and 18 Merrill cases are supplying you with information -- 19 MR. BARRY: Correct, your Honor. 20 THE COURT: -- responsive to what's needed. Good. 21 Okay. While I have this on, I've noticed from the -- 22 the advice of settlement that there are a number of cases that 23 bunch claims. There are four Pentagon wrongful death claims 24 bunched into a single action, Fisher, Golinski, Houtz and 25 Wilcher (phonetic). There are wrongful death claims for Xiang SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 67L1911C 1 and Yang (phonetic) in a single action, maybe some more. But 2 each of these has to be filed as a separate action. Are the 3 lawyers for those plaintiffs here? 4 MR. FRANZ: Yes, your Honor, it's Keith Franz, Azrael, 5 Gann & Franz here on the Fisher, Golinski, Houtz and -- 6 THE COURT: You need to file four actions, sir. 7 MR. FRANZ: Very well. We'd be glad to. 8 THE COURT: They will be considered filed nunc pro 9 tunc as of the original filing. But they need to be in 10 separate actions. 11 Mr. Barry, would you notify the lawyer for Xiang and 12 Yang? 13 MR. BARRY: Motley Rice, I believe. 14 THE COURT: Is it a Motley Rice case? 15 MR. ELSNER: Okay. 16 THE COURT: All right. You've been advised. Get it 17 done. I'd like this to be done within ten days. 18 MR. ELSNER: Very well. 19 THE COURT: Okay, Mr. Elsner? 20 Any additional items? 21 When shall we meet again? Mr. Moller, what do you 22 think? 23 MR. CLIFFORD: I was thinking the week after the 24 beginning of the depositions. They start the week of 25 September 10 and 11, and then the following week to report to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 67L1911C 1 you about how it's going? 2 THE COURT: I think my suggestion is that before, just 3 before. 4 MR. BARRY: Before the depositions? 5 THE COURT: Just before. 6 MR. CLIFFORD: How about on Friday, the 8th? I'll be 7 in town anyway. 8 MR. BARRY: That's certainly a good reason. 9 THE COURT: No. There's a Second Circuit conference 10 that I have to attend. But maybe earlier that week. 11 MR. CLIFFORD: Labor Day, that Monday, is the 4th. 12 THE COURT: Let's go off the record for a few minutes. 13 (Discussion off the record) 14 THE COURT: We've discussed two dates: 15 September 11th at 10:00, which is the date that depositions 16 are to begin, subject to a request by liaison counsel to cancel 17 the depositions if no substantial -- 18 MR. CLIFFORD: To cancel the status -- 19 THE COURT: Sorry, to cancel the status conference if, 20 in their opinion, my involvement is not necessary. 21 And the second date, September 21, Thursday, at 4:00, 22 which is a date that we will keep. All right? 23 Have a pleasant remaining summer and a nice day. And 24 I'll see you in September. 25 o0o SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300