1 7799wtca 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 IN RE: SEPTEMBER 11 3 LITIGATION 4 4 5 21 MC 97; 21 MC 101 (AKH) 6 6 7 7 8 ------------------------------x 8 New York, N.Y. 9 July 9, 2007 9 3:00 p.m. 10 10 Before: 11 11 HON. ALVIN K. HELLERSTEIN, 12 12 District Judge 13 13 APPEARANCES 14 14 SPEISER, KRAUSE, NOLAN & GRANITO 15 Attorney for Consolidated Property Plaintiffs 15 BY: FRANK H. GRANITO 16 16 MOTLEY RICE 17 Attorneys for Consolidated WD & PI Plaintiffs 17 BY: VINCENT I. PARRETT 18 DONALD A. MIGLIORI 18 19 KREINDLER & KREINDLER 19 Attorney for Plaintiffs 20 BY: ANDREW J. MALONEY 20 21 FLEMMING ZULACK WILLIAMSON ZAUDERER LLP 21 Attorneys for Plaintiffs World Trade Center Properties 22 Cross-Claim 22 BY: RICHARD A. WILLIAMSON 23 CATHI A. HESSION 23 24 KREINDLER & KREINDLER 24 Attorney for Plaintiffs 25 BY: ANDREW J. MALONE SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 7799wtca 1 APPEARANCES CONTINUED 2 PERKINS COIE LLP 2 Attorneys for Defendant The Boeing Company 3 BY: THOMAS J. MCLAUGHLIN 3 MACK H. SHULTZ 4 4 RICHARDS KIBBE & ORBE LLP 5 Attorneys for Defendant The Boeing Company 5 BY: NEIL S. BINDER 6 BRIAN S. FRASER 6 LEE S. RICHARDS 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 7799wtca 1 (In open court) 2 THE COURT: Be seated everyone. I asked for this 3 public argument because the issues that were presented to me 4 regarding the scope of discovery that I commented on in my 5 order regulating discovery of July 5, 2007 presented issues 6 that I felt I did not have a sufficient understanding of, and 7 so since the issues did seem important, both to the plaintiffs 8 and the cross-claimant, that wish to have discovery, and to 9 Boeing, who -- which had already filed a motion for summary 10 judgment, I thought we'd all benefit by having arguments made 11 at a more fuller scope in this session. 12 Let me tell you what I understand as a sort of a basis 13 for understanding. The plaintiffs wish to discover aspects of 14 Boeing's manufacture that went beyond the cockpit doors. The 15 argument that eventually will be made, taken from the 9/11 16 report, is that there were multiple issues as to how the 17 terrorists were able to obtain control of the airplane having 18 to do with the possibility that the avionics in the airplane, 19 the methods of controlling the plane and relating the plane to 20 ground controllers could have been manufactured differently. 21 Why, for example, were the terrorists able to sever 22 the connection between the airplane and ground controllers so 23 that ground control did not know the flight of the airplane? 24 Why was the software on the plane such that the 25 terrorists were able to take control of the airplane and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 7799wtca 1 maneuver it in the same way that a normal pilot could maneuver 2 it, or so it might be argued? 3 I might not have all these arguments correct but I 4 just set them out at the outset to illustrate the scope that 5 plaintiffs and cross-claimants wish to explore. 6 Boeing argues in response, first, that it has a 7 pending motion for summary judgment and a Rule 56, it's up to 8 the responding parties to identify precisely why they need more 9 discovery and why more discovery would be a block to the 10 motion; and secondly, Boeing argues the scope of relevance to 11 the discovery which are the claims set out in the master 12 complaint speak only to the cockpit doors and not of other 13 aspects of claim negligence and product deficiency. 14 I read the complaint -- I read the master complaint, 15 93, for example, in Count 1, alleging claims against United, 16 the security company defendants, and the Port Authority, but 17 not, it seems, Boeing, has a broad allegation. Paragraph 69 18 reads: "The defendants were jointly and severally required to 19 secure Flight 93 from unreasonable dangers such as terrorists 20 action aboard the aircraft, including hijacking, and to operate 21 the subject aircraft in a manner which would not result in 22 injury or death to its passengers." That's an illustrative 23 allegation. 24 In the specifics in paragraph 72, although there are 25 three references to secure cockpit doors, there is another SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 7799wtca 1 reference, third from the last, reading, "Failed to implement 2 adequate safety and security measures to prevent hijacking," a 3 rather broad statement, and which I think might justify the 4 discovery that is sought. 5 I skip to Counts 5, 6, and 7, which mentions Boeing as 6 among the defendants, and to these claims specifically against 7 Boeing. The claim for strict tort liability alleges in 8 paragraph 96 that Boeing "defectively designed the cockpit or 9 flight deck environment, including its door and accompanying 10 locks." Two sentences later, "The cockpit door was not secure 11 and the accompanying locks were insufficient." 12 Paragraph 97 reads, "This... meaning the defective 13 doors "...defective design, permitted the terrorists to gain 14 access to the cockpit of Flight 93 and hijack the aircraft. 15 Boeing's defective design was the proximate cause of the deaths 16 of the decedents on Flight 93. 17 Count 6 alleges a claim for negligent design against 18 Boeing. Paragraph 101 reads: "Defendant Boeing recklessly and 19 negligently breached its duty of care by failing to design the 20 cockpit doors and accompanying locks." 21 Count 7 alleges a breach of warranty claim against 22 Boeing. 23 And paragraph 106 reads more broadly, "Prior to 24 September 11, 2001 defendant Boeing expressly and/or impliedly 25 warranted and represented that the subject aircraft and its SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 7799wtca 1 component parts and systems, including but not limited to the 2 subject aircraft's structure and airframe, including the 3 subject aircraft's cockpit door, were airworthy, of 4 merchantable quality, and/or fit and safe for the purposes for 5 which they were designed, manufactured, assembled, etc." 6 I think Boeing's argument of lack of relevance between 7 the claim and the discovery has some point. 8 With regard to the cross-claimant, Boeing acknowledges 9 that -- incidentally, I welcome the Port Authority to, 10 Mr. Williamson to the front bench. This is the first. 11 MR. WILLIAMSON: Thank you, your Honor. It's taken us 12 a number of years to move here. Richard Williamson for the 13 World Trade Center Properties, cross-claimants. But thank you 14 for the welcome. 15 THE COURT: The cross-claims are alleged insufficient 16 breadth as Boeing acknowledges. So that this argument of lack 17 of relevance is not on point. 18 Paragraph 50. It is alleged no system was in place 19 that would have prevented the hijackers from operating the 20 aircraft, which should automatically notify the cross-claim 21 defendants or the government that the authorized pilots were no 22 longer in control of the aircraft. 23 Paragraph 51, in addition to referring to the cockpit 24 doors, alleges also that there was a failure by permitting the 25 terrorists to take over the flight controls and automatically SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 7799wtca 1 notify the authorities whenever unauthorized persons were 2 flying the aircraft, and similarly. 3 As to the argument that Rule 56(f) is the exclusive 4 way to deal with this opposition, I reject that. I think I'm 5 sufficiently seasoned and familiar with the issues to deal with 6 the question of proper or improper discovery however the issue 7 is brought to my attention, and I can have in mind whether the 8 discovery has some focus and relationship to the pending motion 9 for summary judgment as easily from a joint letter under Rule 10 2(e) as from an affirmation under Rule 56(f). 11 That sets the stage. Who is going to argue for the 12 plaintiffs. 13 MS. HESSION: Cathi Hession from World Trade Center 14 Properties. I will begin, if I may. 15 First, with respect to your Honor's summary of the 16 state of affairs here, I'd like to just point out that 17 plaintiffs' targeted discovery requests were served before 18 Boeing moved for summary judgment. 19 THE COURT: Thank you for reminding me of that issue, 20 Ms. Hession. It's important. They were pending since 2002. 21 It was only five years later, in 2007, that the issue seems to 22 have been raised to a level where the plaintiffs and perhaps 23 the cross-claimant, as well, made clear that they wanted 24 Boeing's responses. 25 But you're not in real difficulty, Ms. Hession. It's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 7799wtca 1 the plaintiffs who are in difficulty because you alleged in 2 your cross-claim a sufficient basis for relevance. 3 MS. HESSION: That's right, your Honor, but -- 4 THE COURT: So why trouble -- not that I don't like 5 hearing you. 6 MS. HESSION: The main purpose we're here, your Honor, 7 is because we wanted an extension of time to serve our opposing 8 papers, including, if necessary, 56(f) affidavits, but your 9 Honor has already ruled that's not necessary. 10 THE COURT: You really want discovery. Let's go to 11 the discovery issue. Let me hear from counsel. 12 MR. PARRETT: Vincent Parrett from Motley, Rice, your 13 Honor, for the wrongful death plaintiffs. 14 First of all, we think that our complaint, and 15 specifically referring to the amended Flight 93 master 16 liability complaint, is well pled under Rule 8. 17 THE COURT: That's not the question. 18 MR. PARRETT: Yes, sir. 19 THE COURT: Whether it's sufficiently pled so that it 20 supports discovery in the areas that you wish to discover. 21 That's the issue. 22 MR. PARRETT: Yes, your Honor. If I could refer your 23 Honor to Count 5. The first thing I point out is that in 24 paragraph 94 plaintiffs did specifically incorporate by 25 reference all the prior allegations in the complaint, which we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 7799wtca 1 think, fairly read, does encompass the broader claims that your 2 Honor was alluding to earlier. 3 THE COURT: I disagree. Those are so broad. 4 MR. PARRETT: Second, under paragraph 96, it does -- 5 we did plead, your Honor, defendant Boeing defectively designed 6 the cockpit or flight deck environment. And the discovery, we 7 are pursuing now, your Honor, does go to the flight deck 8 environment. 9 THE COURT: Yes. But this comes in against -- I see 10 what you're saying. 11 That's only for a strict tort liability. 12 MR. PARRETT: Yes, your Honor. 13 Negligence is count 6, your Honor. 14 THE COURT: Count 6 doesn't pick up this allegation, 15 does it? 16 MR. PARRETT: Respectfully, if you look at paragraph 17 100, we do claim that defendant Boeing owed all passengers who 18 flew on their aircraft and those who flew on Flight 93 a duty 19 of care in safely designing the aircraft. 20 If I could stop there, it's not just limited to the 21 cockpit door claims. Our essential claim, your Honor, is that 22 the aircraft itself was negligently designed because it did not 23 include relevant safety measures that, your Honor, some of 24 which your Honor alluded to at the outset of this hearing; for 25 instance, a flight control system that would have stopped the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 7799wtca 1 hijackers who were unauthorized to be able to navigate and 2 control and crash this plane. 3 If I could turn to Count 7, which is our breach of 4 warranty claims, your Honor, if I could direct your Honor's 5 attention to paragraph 107. 6 We certainly think this is broader than a mere -- a 7 cockpit claim, your Honor. It says, and I quote, "Defendant 8 Boeing breached said warranties in that the subject aircraft 9 and its component parts and systems, including but not limited 10 to the subject aircraft's structure and airframe, including the 11 subject aircraft's cockpit door," and then if you skip down 12 towards the end of that paragraph, "were not free from all 13 defects and said breach of warranties proximately caused the 14 terrorist hijacking, crash, injuries and deaths." 15 So, it's our contention, your Honor, that our claims 16 are not just cockpit design defect claims; that the claims in 17 strict liability, in negligence, in breach of warranty, while 18 we specifically included the cockpit door design defect, we 19 certainly weren't required in a pleading to go beyond that. 20 And we certainly believe that the discovery that's currently 21 sought could reasonably lead to the discovery of admissible 22 evidence. And we'd like the documents before we have to 23 respond to summary judgment. 24 THE COURT: You can't allege a sufficient basis -- if 25 I hold that you have not alleged a sufficient basis for this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 7799wtca 1 discovery, do you have other arguments? 2 MR. PARRETT: Sure, your Honor. We'd be happy to -- 3 if your Honor tells us that our pleadings, as alleged, that the 4 discovery we've sought are not relevant to those pleadings, we 5 could replead. Another thing we could do if Boeing -- it seems 6 what they're asking for is a more particularized statement, we 7 could also do a 12(e) statement. But probably the -- 8 THE COURT: What's a 12(b) statement? 9 MR. PARRETT: 12(e) statement, your Honor. 10 THE COURT: A more definite statement? 11 MR. PARRETT: Yes, more definite statement. 12 But probably the easiest thing to do would be just to 13 replead. 14 But given what we see as the broad scoop of Rule 8's 15 pleading requirements, and given that we did plead strict 16 liability, negligence design, and also breach of warranty, we 17 think that the discovery we've requested is relevant and that 18 we're entitled to see the documents before we respond. 19 THE COURT: Has Boeing answered? 20 MR. PARRETT: Yes. 21 THE COURT: So 12(e) statement doesn't apply. 22 MR. PARRETT: That's true, your Honor. 23 THE COURT: But if necessary, you would ask for leave 24 to amend? 25 MR. PARRETT: Yes, sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 7799wtca 1 Your Honor, just one last point if we could bring to 2 your Honor's attention. This discovery is coordinated. It was 3 served on behalf of the wrongful death and personal injury 4 plaintiffs, the property claimants, and also the World Trade 5 Center cross-claim. So we're trying to work together and 6 receive the documents and respond accordingly. 7 MS. HESSION: Your Honor, may I just add one point? 8 THE COURT: I think Mr. Granito is next. 9 MR. GRANITO: Mr. Granito on behalf of the 10 consolidated property plaintiffs. I don't believe your Honor 11 was referring specifically to that complaint, which is 12 21 MC 101, but I also believe that the language in there 13 supports the notice pleading requirements of the federal rules. 14 Your Honor, I would also point out that rule -- 15 THE COURT: What is the language you want to refer me 16 to? 17 MR. GRANITO: On page 32 on the strict tort liability, 18 "The defective design rendered the subject aircraft --" 19 THE COURT: One minute. Let me get it. 20 MR. GRANITO: It's paragraph 180 on page 32. 21 178 to begin with, your Honor. 22 THE COURT: One minute. I don't have it handy. 23 MR. GRANITO: 178. "The design of the subject 24 aircraft and their component parts and systems, including but 25 not limited to cockpits, cockpit doors and locking SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 7799wtca 1 mechanisms --" 2 THE COURT: That's the same wording that Mr. Parrett 3 gave. 4 MR. GRANITO: -- was defective." 5 THE COURT: That's the same wording that Mr. Parrett 6 gave me. 7 MR. GRANITO: The point that I wanted to make was that 8 the forms in the federal rules, specifically, for example, Form 9 8, which is a negligence case, simply requires us to say you 10 drove the car negligently. And Rule 84 with respect to form 11 says that the plaintiff is entitled to rely upon the forms. 12 The defendant could have asked for a more definitive 13 statement. 14 THE COURT: I've taken the position in this case, and 15 perhaps it's not consistent with teachings of the Second 16 Circuit, is that the parties were entitled to a higher degree 17 of certainty of allegation, this series of cases being so 18 large, and in the public interest, and the ability of the court 19 to manage the cases there needed to be a higher degree of 20 specificity. 21 I don't think the general rules of pleading a car 22 accident case should apply. I'm not sure they would apply on a 23 product liability case either. 24 You've mingled a number of theories, strict liability, 25 tort liability -- strict liability, negligent liability and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 7799wtca 1 product liability in different counts, and all are said to 2 justify this discovery. 3 I think I have your point. The point is that you've 4 alleged generally in the same way that Mr. Parrett has argued 5 and if necessary to amend I'm sure you would be willing to 6 amend. 7 MR. GRANITO: Absolutely, your Honor. Thank you. 8 THE COURT: You ask for leave to amend. 9 MR. GRANITO: Right. 10 THE COURT: Ms. Hession. 11 MS. HESSION: Your Honor, I just wanted to point out 12 that the discovery that was served on Boeing is not limited to 13 these other issues, but a substantial portion of it relates to 14 the cockpit doors themselves. And we recently received an 15 index from Boeing of some documents that they produced to the 16 TSA in response to our document request. And they clearly, all 17 of them, relate to the cockpit doors. So this discovery is not 18 just on these other issues but it covers the cockpit doors as 19 well. 20 THE COURT: Why did it take until 2007 to focus the 21 case on Boeing? 22 MS. HESSION: Your Honor, for the World Trade Center 23 Properties, we did not file our cross-claim until right before 24 the statute ran at the end of August in 2004. Boeing didn't 25 even answer our cross-claims until November of 2005. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 7799wtca 1 The original discovery responses of Boeing were never 2 served on us, even though we were a defendant in the case at 3 that time. 4 After we filed our cross-claims, we asked Boeing for 5 their discovery that they have produced to everybody else, and 6 that was given to us sometime in the fall of 2004. 7 Shortly thereafter, as your Honor will recall, 8 settlement discussions between the wrongful death plaintiffs 9 and the aviation defendants were initiated and discovery 10 essentially was put on hold; specifically, the property 11 plaintiffs and the World Trade Center cross-claimants were 12 asked to step back and let that process take place. We did 13 that. Discovery did not get underway until I think the first 14 deposition was in September of 2006. 15 Shortly thereafter, your Honor, our firm got in touch 16 with Boeing's counsel to ask about what we felt were 17 deficiencies in their original responses to the initial 18 discovery even though they hadn't been -- we weren't a 19 plaintiff at that time. We didn't want to serve new discovery 20 since that was outstanding. 21 After some back-and-forth with counsel for Boeing, 22 essentially we were told that they considered that discovery 23 closed based on meet-and-confers that took place with 24 Mr. Moller before we had ever filed a cross-claim. 25 So when they took that position, it was then, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 7799wtca 1 Honor, that we served the targeted discovery, getting what we 2 specifically wanted from Boeing, and that was the genesis of 3 how this came about. 4 THE COURT: Was your discovery coordinated with the 5 plaintiffs? 6 MS. HESSION: Yes, it was, your Honor. 7 THE COURT: Mr. Migliori, why did it take so long 8 before Boeing was targeted. 9 MR. MIGLIORI: I can tell you that on the plaintiff 10 wrongful death side, there was actually disharmony among some 11 of the firms about how aggressive to be with Boeing. 12 But I remind the court of two realities when it came 13 to Boeing. The first was when SSI became an issue, Mr. Moller 14 had to come up with a practical way of getting the process 15 started, as the court had tried to foster from the very 16 beginning with the government, as sort of a third party in the 17 room. 18 THE COURT: And Ms. Goldman was very strong in asking 19 the plaintiffs to focus their discovery as narrowly as they 20 could. 21 MR. MIGLIORI: Exactly, your Honor. And in doing 22 that, that wasn't just in the scope in terms of Rule-26-issue 23 scope. That actually set up waves of who should respond first 24 so the very first wave effort coming out of the plaintiffs' 25 executive committee -- and reminding the court that we were SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 7799wtca 1 never on the committee, we got this second-hand -- but the 2 first waves were only limited to the carriers and the security 3 companies. It didn't relate to Boeing. 4 THE COURT: Can you give me a date? 5 MR. MIGLIORI: I can give you a rough date. I think 6 when this started to generate we were talking about -- actually 7 around the same time that the VCF started to close up. So 8 December of '03 we started trying to come up with waves of 9 productions so that TSI could manage it. So the first parties 10 focused on were American and United. 11 THE COURT: My recollection is that we went through a 12 process that evolved. And at the beginning of the process, the 13 effort was to narrow requests so that the TSA could get the man 14 power organized to function. Later on TSA took the position 15 that only a very few people could see and under very 16 restrictive conditions. 17 MR. MIGLIORI: Exactly. 18 THE COURT: And the effort changed from a restriction 19 on scope to a restriction on identities. It was only the 20 Moussaoui trial that changed the government position and forced 21 them to open up both the questions of numbers of documents and 22 number of people. 23 MR. MIGLIORI: The Moussaoui trial and the legislative 24 changes. 25 THE COURT: When did that occur. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 7799wtca 1 MR. MIGLIORI: That actually happened within the past, 2 I would say, 14, 16 months. 3 THE COURT: Sometime early in 2006? 4 MR. MIGLIORI: Yes. And so we were limited initially 5 in which defendants had to produce documents for TSA review, 6 was primarily the carriers; not the noncarriers, and not 7 Boeing. Then it was only eight issues were in the first wave 8 to be discovered. So even among the carriers, it was limited 9 in scope. And then as the court points out, it was limited in 10 who could see it at that point in terms of plaintiffs' firms. 11 It really wasn't until 2006, and consistent with the 12 court -- it was about March of 2006 we had an informal 13 conference here at the plaintiffs' table about what do we do 14 now to try to get mediation going and try to get this discovery 15 logjam opened up. 16 That's when the September 12 initiation date for 17 depositions opened up. That's when everyone started to say the 18 relevant parties need to be discovered and the relevant issues 19 need to be explored. So we kind of opened up the scope of 20 discovery at the end -- in the fall of 2006. 21 The other track that I want to bring to the court's 22 attention is the settlement track. While we're talking 23 resolution in the wrongful death claims, I'd like to remind the 24 court that Boeing was never part of that discussion. So while 25 we were doing the work, sort of the settlement work grew the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 7799wtca 1 same way. It was primarily the carriers and security companies 2 first. And now as other people, the other two -- the other two 3 executive committees got involved, where their issues with 4 Boeing become more relevant, because now we're talking about 5 scope of coverages, that's when Boeing started to get into the 6 discussion more. 7 So it did -- it wasn't out of complacency or lack of 8 interest. It really was an ordinal issue in terms of priority, 9 getting TSA appropriately involved, given their limited 10 resources, and our effort to try to prioritize. 11 THE COURT: If the plaintiffs were to be required, as 12 a condition of obtaining the discovery they seek, to amend 13 their complaints, what delay would ensue? 14 MR. MIGLIORI: Your Honor, something as simple as that 15 we could do within the week because quite frankly we've got a 16 template. This is coordinated discovery. If the court is 17 saying that the World Trade Center's pleadings are sufficient 18 effectively for discovery purposes, we can plead that at a 19 minimum and more within a week. But it shouldn't slow down 20 this process. We would like -- we'd like the documents. We'd 21 like a period of time. We ask for 60 days to review them 22 before we have to respond to the motion for summary judgment. 23 We'd like to keep that track. 24 As a procedural matter, we'd be more than happy under 25 Rule 15 to file an amended complaint that pleads more SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 7799wtca 1 sufficiently for the court's purpose, that it will relate back 2 to our original filing. It will take us a week. 3 THE COURT: The issue of relation back I guess would 4 be another issue that Boeing would raise. 5 I don't think that Boeing could proceed with its 6 original motion because there would be new issues that need to 7 be encompassed and Boeing would either have to supplement its 8 papers or, as I would prefer, file new papers for summary 9 judgment. 10 MR. MIGLIORI: Here is one issue, your Honor. 11 Although the motion says it relates to all of our claims in 12 wrongful death, counsel for Boeing, both in its 2(e) response 13 and again today before the hearing said: Well, we really only 14 mean towards our cockpit door claims. So if, in fact, it's not 15 what their motion says today -- 16 THE COURT: Stop. I'm really not interested in 17 partial -- I'm not interested, as a judge, I'm not interested 18 in partial declarations of judgment. If I take this on summary 19 judgment, it's a very large expenditure of energy. It has an 20 expanse on the rest of the cases I have to deal with, 9/11 and 21 otherwise, and I'm not willing to undertake that job unless 22 it's dispositive. 23 MR. MIGLIORI: We appreciate that, your Honor. 24 My point simply is if that's what their motion is 25 today, then repleading is not necessary. If their motion is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 7799wtca 1 more than that, than the cockpit doors, then it really should 2 be for everybody that they're going to need to replead their 3 motion. 4 THE COURT: Let me hear from Boeing. 5 MR. McLAUGHLIN: Your Honor, Tom McLaughlin from 6 Perkins Coie in Seattle. 7 THE COURT: Nice to have you again, sir. 8 MR. McLAUGHLIN: Nice to be at the table for a change. 9 THE COURT: You can push someone else aside. You 10 don't have to be so modest. I know the rest of the United 11 States has a habit of apparent reticence in relationship to the 12 brash New York lawyers who like to crowd the table, but you can 13 be one of us. We'll give you a key. 14 MR. McLAUGHLIN: I've been here enough times with 15 Judge Sweet on TWA 800 and other cases before that, so I could 16 develop my New York brashness. 17 We view this situation as two very separate trains on 18 two very separate tracks. 19 I recognize that your Honor has just said that you're 20 disinclined to go with a partial summary judgment. But we feel 21 that the great thrust of the case against Boeing, the sole 22 thrust, we thought, on behalf of most of the plaintiffs was the 23 cockpit doors. 24 We feel the evidence is very strong that the 25 plaintiffs are never going to be in a position to prove that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 7799wtca 1 the means of access to the cockpit was by breaking down the 2 cockpit doors as opposed to simply going through the doors, the 3 opening of the door, when it was opened in the normal course or 4 when it was opened in response to some sort of a threat of a 5 flight attendant. 6 So we think that this will vastly simplify the case as 7 to Boeing; will allow the case to move forward much more 8 smoothly; and that a partial summary judgment in this 9 circumstance would be highly beneficial. 10 It's a discrete element of their case. Causation and 11 fact is the focus of the motion. And we feel that when a 12 particular discrete element is ready for resolution, plaintiffs 13 have essentially conceded that they have no more discovery to 14 do on the question of what happened in the airplane on the day 15 in question and if they do, they could file with their 16 opposition papers a Rule 56(f) affidavit setting forth exactly 17 which discovery and why and meeting the standards. And I don't 18 disagree that you could handle it with a 2(e), but they haven't 19 met the standards of satisfying exactly what discovery is 20 needed for opposing a targeted summary judgment directed to 21 causation on access to the cockpit. 22 THE COURT: I feel, Mr. McLaughlin, that there are 23 aspects to the proofs in the case that will elude an effort to 24 abstract one important issue from other important issues. 25 I'm going to want to know what Boeing knew or should SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 7799wtca 1 have known prior to its manufacturing and design of its 2 airplane. The aspects of knowledge may affect various aspects 3 of the design in addition to the designs of the cockpit doors, 4 what the aviation regulations provided in terms of that which 5 was advisory to Boeing and that which was beyond that, more 6 compelling. I think those kinds of issues will be relevant. 7 And I would be concerned that focusing only on how the 8 terrorists may or may not have gotten into the cockpit will not 9 help me very much in the final analysis. I'm not inclined to 10 abstract the issue in that way. If that is the case, you have 11 to deal with the other aspects as well. 12 If it's your position that the parties should be 13 precluded because there is no longer an issue of relevance to 14 that which was alleged, I have to deal with that issue. If 15 it's an issue of relation back under the statute of 16 limitations, I have as to deal with that issue as well. 17 There's been no firm rule in this case that the 18 pleadings, backed up by contentions, will strictly control all 19 that will follow the case. I did that in the Zurich Insurance 20 cases. I don't recall I did it in this case. 21 If that's the case, I have to deal with these 22 generalized allegations, not only in the context of small 23 differences from one master complaint to another, but also in 24 the context of coordinated pleadings with the World Trade 25 Center as a cross-claimant as well. And you concede that their SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 7799wtca 1 cross-claim is broad enough to cover the discovery that is now 2 being sought. 3 I think it's much better to have this discovery. It's 4 better for Boeing as well. If you're right ultimately in a 5 major defense that you did that which the federal regulations 6 suggested that you do, and you prevail either as an absolute 7 defense, or as an evidentiary defense, or presumption defense, 8 you'll be in a much stronger position on appeal with this 9 discovery in the background than with the discovery not having 10 been had. 11 I think there are a number of strong concerns I have 12 about cutting this case short before there is reasonable scope 13 to discovery on all available issues. I think that causes me 14 to give the plaintiffs the opportunity to conduct this 15 discovery. 16 I'm troubled by pleadings that seem to have undue 17 focus on cockpit doors and not on other security features that 18 are now in issue. Whether there is a sufficient notice in 19 these pleadings and scope in the discovery that follows, I 20 think different people might disagree, and I think it might be 21 better off to have an amendment, but I think everyone here 22 knows the issues now and we can deal with these issues and I 23 think it's better for everybody that these issues be explored. 24 MR. McLAUGHLIN: Just to be clear, your Honor, we have 25 been proceeding on a separate track with that discovery. We SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 7799wtca 1 haven't been resisting and saying it should be stayed. 2 THE COURT: Well, you have slowed it quite a lot. I 3 don't want to assign fault for that. I think everyone has 4 acted appropriately in this case. I've been impressed about 5 that. But it's taken a long time and I think it's taken such a 6 long time because of the way that TSA as forced us to proceed. 7 But I think we're at a door now where we can speed along much 8 more effectively and that will require I think quicker 9 responses on the part of everybody. 10 I do think that discovery should be had, and I think 11 it should be had on a quicker timetable than the ones we've 12 been operating under so far. 13 MR. McLAUGHLIN: We've been producing already. We 14 produced twice. We're happy to meet and confer with them. 15 They haven't asked us to do that yet, but we're happy to do 16 that. 17 THE COURT: Until I make this ruling right now, I 18 don't think there has been a basis to have this 19 meet-and-confer. There's been too much uncertainty. Now I 20 think the air is cleared. 21 I'm not going to require an amendment. The plaintiffs 22 may want to amend to satisfy any concerns about a record. I 23 leave it to them. If they ask me for leave to amend in that 24 context, I will grant it. But I leave to them the decision 25 whether or not to amend. The cross-claim, everyone agrees, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 7799wtca 1 sufficiently broad. 2 So I think we are now at a stage where the discovery 3 against Boeing on the grounds set out in this 2(e) letter are 4 ready to proceed. There should be meet and confer, and there 5 should be discovery, and we should proceed in as rapid a pace 6 as we can. 7 Now at some point, Mr. McLaughlin, you're going to 8 want to make a motion for summary judgment and I welcome it. 9 It's going to be a motion that will be difficult for me to deal 10 with. But it should be made. And it's best made when all 11 discovery is had. And I think it would be better for me to 12 deny your present motion without prejudice and with leave to be 13 reasserted at an appropriate time. 14 MR. McLAUGHLIN: Very well, your Honor. 15 THE COURT: Okay. So those are my rulings. And we'll 16 have a summary order to follow. And I thank you all. 17 MR. GRANITO: Thank you, your Honor. 18 (Adjourned) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300