1 46IJ911C Conference 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 IN RE: SEPTEMBER 11 LITIGATION 21 MC 97 AKH 3 4 ------------------------------x 4 5 6 7 8 June 18, 2004 8 10:12 a.m. 9 10 11 12 13 Before: 13 14 HON. ALVIN K. HELLERSTEIN, 14 15 District Judge 15 16 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 46IJ911C Conference 1 (In open court) 2 (Case called) 3 THE COURT: This should have been distributed to each 4 of you. If not, we'll get you copies of an agenda that was 5 proposed for today's discussions and which I've approved, and 6 then some very useful charts prepared by Condon & Forsythe, 7 describing the lawsuits that are before me. 8 Perhaps we ought to go to Mr. Barry's charts first. 9 Mr. Barry, you might want to run people through them so they 10 can understand. 11 MR. BARRY: Fine, your Honor. Good morning. 12 The chart is a summary of the litigation as it stands 13 right now, with the footnote at the bottom referring to the 14 German subrogation cases. We have at the moment 90 personal 15 injury wrongful death cases pending before your Honor. It is 16 broken down as by flight on this chart, and in addition to 17 those, there are 12 property damage actions which are also 18 pending before your Honor. 19 These statistics were compiled by our office. I think 20 they are as accurate as can be at the moment, but I think they 21 are fairly accurate. I don't know if anybody has any issues 22 with any of the statistics, but I will be happy to correct 23 anything that is wrong. We also have the list of cases broken 24 down once again you by flight and by victim, by claim. 25 The second chart, once again I believe they're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 46IJ911C Conference 1 accurate, and also the third chart which breaks down the number 2 of cases by law firm. 3 THE COURT: Can you explain, if you can, Mr. Barry, 4 why the numbers don't coincide? 5 For example, on the chart that traces the numbers of 6 cases versus the number of claimants versus the number of 7 people who are clients of the several law firms, the numbers 8 are not the same, 93 versus 98 versus 93. 9 MR. BARRY: The difference is multiple claims in one 10 lawsuit as opposed to -- the first chart is cases, your Honor, 11 just cases. I am talking about active and dismissed cases. 12 THE COURT: There are 103 active cases? 13 MR. BARRY: Correct, with the footnote referencing the 14 German subrogation cases. 15 The second chart are claims, and there could be a 16 difference between the number of claims as set forth in a 17 lawsuit such as on behalf of two decedents in one lawsuit. 18 THE COURT: That would suggest that there would be 19 fewer lawsuits, fewer cases. 20 MR. BARRY: It could be. It could be more claims than 21 lawsuits. There is one particular one -- 22 THE COURT: What you're experiencing is what we have 23 been experiencing as we try to make our numbers coincide with 24 the statistical information kept by the Victim Compensation 25 Fund. We have not yet arrived at a harmonium of numbers. We SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 46IJ911C Conference 1 have been trying to do that as we try to establish a solid 2 statistical basis for going forward. 3 The newspaper reports of what the reporters are told 4 by the Victim Compensation Fund reports 70 active cases. 5 MR. BARRY: I don't know where that number came from. 6 THE COURT: Nor do we. The best information that we 7 have is somewhere around a hundred, more or less. 8 MR. BARRY: Including the property damage. 9 THE COURT: Including the property damage. 10 MR. BARRY: Right. 11 THE COURT: 90 personal injury and 12 property, which 12 comes to 102. 13 MR. BARRY: 102, only because of the footnote of the 14 German subrogation case, which is cited twice. 15 THE COURT: I thank you for this information. It is 16 useful. As we work the cases, we'll try to rationalize the 17 statistical information. 18 Those of you, as you go forward, please have a mind to 19 this need as well because at some point it will be very 20 important to know exactly how many claimants we have and 21 exactly how many cases of whether there are problems at trial 22 or in connection with any other kind of dispositive event. 23 Thank you very much, Mr. Barry. 24 Let's turn to the agenda. Mr. Moller, do you want to 25 report on Item 1, the status of pleadings. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 46IJ911C Conference 1 MR. MOLLER: Yes, I am happy to. 2 THE COURT: I think if you go to the podium, it might 3 be better. 4 MR. MOLLER: Good morning, your Honor. 5 THE COURT: Good morning. 6 MR. MOLLER: We are aware of the fact there are still 7 some multiple filings and some need to verify that their 8 service of process has been completed. Mr. Barry and I met 9 earlier this week and agreed that we would have those issues 10 resolved by the 15th of July. 11 If that works with you -- 12 THE COURT: Yes. 13 MR. MOLLER: -- we can dispense with the detail. All 14 of the items that are covered in status of pleadings on your 15 agenda are embraced within our agreement to resolve them by the 16 15th. 17 THE COURT: That will be useful and that will also 18 improve the statistical information. 19 MR. MOLLER: That should. 20 MR. BARRY: That's correct. 21 THE COURT: By July 15, hopefully we'll have a fixed 22 knowledge of who are the claimants in what lawsuits? 23 MR. MOLLER: That's right. 24 THE COURT: And alleging what claims. That takes care 25 of Item 1. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 46IJ911C Conference 1 MR. MOLLER: Right. 2 THE COURT: Why don't you go on to Item 2. You may 3 not be involved. 4 MR. MOLLER: Item 2 is better addressed by Mr. Barry. 5 THE COURT: You can stay where you are, Mr. Barry, if 6 you don't block anybody. Just rise. Go ahead. 7 MR. BARRY: Well, Item 2, your Honor, I understand 8 there is a stipulation floating around here in the German 9 subrogation cases that has now been signed. 10 THE COURT: Let me describe for everyone what is 11 involved in these German insurance company cases. 12 They take the position, as I have been told, that 13 under German law, they have a subrogation right to receipts 14 from the Victim Compensation Fund. I may not be stating this 15 perfectly, but this is to the best of my understanding. 16 They wish to advance that right. That would be 17 inconsistent, some would believe, with how the structure of the 18 Air Transportation Safety & Systems Stabilization Act provides. 19 The purpose of this motion is to raise that issue, 20 brief it and allow me to rule upon it. It is probably one of 21 the last of the preliminary motions that I have to deal with. 22 The schedule that has been proposed is that the motion will be 23 made by September 30, opposition by October 20, replies by 24 November 1. 25 MR. BARRY: That has been agreed, as I understand it, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 46IJ911C Conference 1 with Mr. McCallion for the plaintiffs. 2 THE COURT: So that will be the briefing schedule. 3 Please don't ask me for adjournments. It is important that we 4 resolve these issues one way or the other quickly. The 5 Pocasangre case involves a family dispute, and it was moved to 6 a separate schedule from the other issues that I dealt with in 7 my last previous decision. 8 Does the briefing schedule also to apply to them? 9 MR. BARRY: Yes, your Honor, it is the same briefing 10 schedule as the German subrogation cases. 11 THE COURT: Who is involved in that case? 12 Would you just tell me very briefly what is involved. 13 MR. MOLLER: We were approached by Mr. Barry's office 14 during the motions to dismiss that were just resolved for an 15 extension of time because this particular issue is not really a 16 waiver as much as international law. It is a question of 17 whether or not damages law or liability law from El Salvador 18 would apply in a certain situation. 19 Here the children with the Victims Compensation Fund, 20 and under foreign law, if it applies, each parent would also 21 stand in separate and distinct causes of action, in that it had 22 foreign law applications, we were asked if we were willing to 23 put that motion off to the German briefing schedule. We had no 24 problem with that. 25 THE COURT: Very good. Thank you. That is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 46IJ911C Conference 1 different briefing schedule. 2 Does anybody want to speak to that? Mr. Barry? 3 MR. BARRY: I am really not sure. I understand that 4 is the briefing schedule, but perhaps Mr. Alexander? 5 MR. ALEXANDER: Good morning. That motion is filed by 6 one of the architect and engineer defendants, 12 (b)(6) motion 7 presently, and the basis of the motion is that the party that 8 was named is a separate entity from the party that did the 9 engineering consulting work at the World Trade Center. 10 So we have agreed and submitted the letter on a 11 briefing schedule. There may be a wrinkle on the need for 12 discovery. We are trying to address that now as to whether we 13 need that or not, we, the defense counsel. 14 THE COURT: I suspect there may be other defendants 15 involved in the construction of the World Trade Center that 16 will also be making motions. 17 MR. ALEXANDER: They may on other grounds later. 18 This one is just fairly narrow, in that they're 19 alleging the party we have named collectively, all plaintiffs 20 have named is an improper party and that they had no 21 relationship, notwithstanding the similarity of the name of one 22 of the partners. I am summarizing their position. That is 23 generally it. It is narrow than some and may follow later. 24 THE COURT: It might be a case, in other words? 25 MR. ALEXANDER: At least at this point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 46IJ911C Conference 1 MS. LANZA: Your Honor, I represent -- 2 THE COURT: Has Mr. Alexander fairly stated the 3 substance of the motion? 4 MS. LANZA: Yes, he has. 5 THE COURT: Will resolution of this yield another name 6 to be sued? Is it a technical motion or going to reach the 7 substance? 8 MS. LANZA: The original entity that contributed to 9 perform the services for the World Trade Center is no longer a 10 current entity. It has been dissolved for numerous years, I 11 think in 1990 when the entity actually was formally resolved 12 under Washington law. 13 The current entity named as a defendant is a separate 14 legal entity with its own different construction. That is 15 always how entities have transformed over the years. The 16 current named entity is not the named entity. It never 17 performed any -- 18 THE COURT: There is no entity that can be sued at 19 this point? 20 MS. LANZA: That's correct. I believe that the 21 Washington law, statute of limitations, was two years since 22 they dissolved, and that has long since passed. 23 THE COURT: Mr. Alexander, you discussed this issue 24 informally, because if Ms. Lanza is correct, it may not be 25 worthwhile pursuing it. You may have to pursue it in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 46IJ911C Conference 1 different way. 2 MR. ALEXANDER: I agree with that. We might need a 3 little discovery. We are not buying everything they tell us 4 with respect to as a matter of law what the entity formerly 5 existed has gone by the boards. They may have just changed 6 their name, assets may have been -- 7 THE COURT: Anything is possible, but I think you 8 ought to discuss the issue informally, exchange whatever 9 documentary evidence is appropriate, deal with the motion. I 10 think the motion at this point may be a little premature till 11 you do this discovery. 12 MS. LANZA: Your Honor, the documentation was annexed 13 to our motion which contained the original contracts and all 14 the corporate filings that evidenced the name changes between 15 the two, actually three separate companies that did -- the two 16 that did the work on the World Trade Center and the one 17 currently named defendant. All that type of documentation was 18 annexed to the motion. 19 THE COURT: Mr. Alexander, I would like you and Ms. 20 Lanza to have a conversation what your initial needs might be. 21 If you need discovery, pursue it, and then let me know 22 by next Friday what you both think is reasonable. If you have 23 disagreement, I'll see you both. Please call Ms. Lake and 24 arrange a time I think informally, with exchanges of 25 information. We might be able to accomplish more efficiently SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 46IJ911C Conference 1 what we need to accomplish by motion, okay? 2 MR. ALEXANDER: Absolutely, your Honor. 3 THE COURT: Mr. Moller, do you want to tell us what 4 the status of discovery is so far in connection with TSA 5 MR. MOLLER: Yes, I will be glad to. 6 First, let me say generally with respect to the issue 7 of discovery, the plaintiffs are more than frustrated by the 8 slow pace of resolution of the SSI issues, and our frustration 9 is not in any way kindled by the cooperation that we have 10 gotten from Beth Goldman and Sarah Normand, who have been 11 absolutely superb in representing TSA and DOJ's position. 12 But TSA basically has taken the position that unless 13 something is in the public domain, if they deem it to be SSI, 14 we are not going to be able to see it, nor are we going to be 15 able to see substitutes for that. 16 Consequently, we have seen virtually nothing. We have 17 gotten an outline of the car, the check point operations guide 18 limited statement what the common strategy might be, but it is 19 so skeleton as to be, in my judgment, virtually useless. We 20 have no confidence that TSA's attitude is going to change. 21 Now, it may well be that we challenge the TSA 22 determinations in an appellate court or bring to this court 23 issues concerning whether or not the SSI designations have been 24 waived in some way, but we can't make that judgment, frankly, 25 until we see the product of the 9-11 Commission's report which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 46IJ911C Conference 1 is supposed to be published on July 26th. 2 Because if the SSI designation by TSA is conclusive, 3 and we're left to the public record, then the public record 4 frames the case. 5 So what we're trying to do now, and we met with Ms. 6 Normand and Beth Goldman earlier this week, we have agreed that 7 we will not press for a determination by TSA until after we see 8 the July 6th report of the 9-11 Commission and have an 9 opportunity to determine whether or not there is a waiver, 10 whether the SSI issue for some reason becomes less material, 11 but that is the status of SSI. 12 So we can't move forward on that until after July 13 26th, in my judgment. 14 THE COURT: Why do you think I would have jurisdiction 15 to hear an issue of waiver? 16 MR. MOLLER: I am not sure that you do, but you might. 17 In the Chowdry against Northwest Airlines case, which 18 was in the Federal Court in California, and back and forth 19 through the 9th Circuit, issues were put before the trial 20 judge, and there may be a context in which you do have 21 jurisdiction. If there is a waiver, it may not directly 22 implicate whether something is or is not SSI. 23 Nobody has really been able to focus on the scope of 24 SSI yet in this case until we see what's in the public domain, 25 whether there has been a waiver, maybe something is not SSI, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 46IJ911C Conference 1 and you might decide that you have no jurisdiction if we were 2 to bring it here. It is a very delicate issue and a delicate 3 balance. 4 In any event, wherever we challenge SSI, were it in 5 this court or in the appellate court, we are not going to get a 6 resolution of that issue for months on the best of days. If 7 you decided that you had jurisdiction and said to the 8 defendants disclose it, I have no doubt that they will take the 9 issue to the Second Circuit or TSA would intervene and take it 10 to the Second Circuit. We're just months away. 11 So we're planning to proceed with discovery under the 12 assumption that we're not going to see a whole lot of SSI. 13 While we pursue it, we don't want the case to be delayed by 14 that issue. 15 We anticipate that we will frame our lawsuit with what 16 is in the public record, and I believe that that will be more 17 than sufficient to make out a prima facie case. 18 THE COURT: Mr. Barry, any comments? 19 MR. BARRY: No, your Honor, I don't have any comments 20 on what Mr. Moller has said so far. 21 He and I have met and conferred and agreed on a 22 schedule, subject to your approval, for the second wave of 23 discovery, which I will be happy to relate to you now or wait 24 until Mr. Moller finishes his talk. 25 THE COURT: Let me see if the government has any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 46IJ911C Conference 1 comment. Ms. Goldman? 2 MS. GOLDMAN: We are comfortable with the agreement 3 Mr. Moller and Mr. Barry have reached about how to proceed here 4 and waiting for the 9-11 Commission report. We understand, and 5 the plan on second waiver you're about to hear, we think, makes 6 some sense. 7 I think just to clarify a little bit, let's remember 8 that it is only the first wave that TSA was looking at, and TSA 9 reviewed the first wave documents for a limited category of 10 eight documents. They released non-SSI or authorized a release 11 of what was non-SSI in February and then engaged in this 12 process of meeting and conferring, which we have had probably 13 three meetings, the purpose of which was to find out what it 14 was that the plaintiffs were looking for and try to come up 15 with some substitutes for those particular areas. 16 The substitutes were, in part, driven by a recognition 17 by TSA that there were materials that had been disclosed to the 18 commission and the commission had been disclosed the content of 19 those documents with TSA's agreement, but that those things had 20 been released in some way; and in order to make sure that there 21 wasn't a huge disparity between what the plaintiffs had and 22 what has been released, TSA reviewed those documents to try to 23 provide discussion that would not disclose SSI, but would 24 disclose the content that was comparable to what the commission 25 was releasing. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 46IJ911C Conference 1 For instance, on the common strategy, that was 2 something that plaintiffs have asked for. During the first 3 wave, there was one document that made reference to it, and 4 there was a substitute based on that document, but it was not a 5 substitute created out of whole cloth based on everything TSA 6 might know about the common strategy. It was a substitute for 7 a particular document. 8 So that the frustration may come from the fact it has 9 been a limited production to begin with. So now that we are 10 turning to the second wave, there may be more information that 11 the plaintiffs will get that they're looking for. 12 THE COURT: I suggested at an earlier stage the 13 possibility of my serving in the type of mediation role that 14 might resolve in assistance to the parties and identifying what 15 is SSI, what might be released, what could be the substitute 16 and the like. 17 Is there any disposition to accept that proposal? 18 MR. MOLLER: We would be more than happy to have you 19 get involved in that process. 20 THE COURT: That is not what your position was last 21 time we met. 22 MR. MOLLER: Well, it is now because I think it is 23 important for you to see what the difficulties are in obtaining 24 it, so that when we speak to the court about those problems, 25 you'll have a full appreciation of what we're up against. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 46IJ911C Conference 1 I am not sure that your involvement, to be candid, 2 will advance us a whole lot if TSA takes the strong position 3 that it has. What your involvement may contribute is that you 4 can tell us -- or both sides -- whether or not a particular 5 document contains something within the orbit of our interest. 6 THE COURT: Well, I don't know what I would do. I 7 don't know what procedural context we should work in. What I 8 am willing to do is to explore with you if I might be helpful 9 and how I might be helpful. 10 If it is agreeable to both of you, I could serve in 11 that capacity. I don't have jurisdiction in this, I believe, 12 because the law provides that a final determination of TSA is 13 appealable to a Court of Appeals in which an aggrieved party -- 14 I forget the exact words -- resides or does business with, but 15 that is essentially what it is. So almost any Court of Appeals 16 in the United States could potentially have jurisdiction. 17 Since I don't have jurisdiction, it may enhance my 18 ability to serve in a mediating function. It certainly can 19 move the case along, which is what I am interested in. 20 MR. MOLLER: It is a complicated jurisdiction. 21 THE COURT: I'll call -- 22 MR. MOLLER: Complicated jurisdiction. 23 THE COURT: -- Ms. Goldman. 24 MS. GOLDMAN: Your Honor, our position remains the 25 same. If your Honor can facilitate more discussion or more SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 46IJ911C Conference 1 comfort on the part of the parties what TSA has done or can be 2 confined to areas of common ground, we are happy to do that. 3 I think we understand what your role would be, as I 4 think probably what Mr. Moller said, which is helping identify 5 areas that they may want and they think are in the document, 6 don't know are in the document, tell them that there is and see 7 if there is some way TSA can provide a substitute for it. 8 THE COURT: How many people should be involved in this 9 discussion? 10 MS. GOLDMAN: From the government's perspective, 11 there -- 12 THE COURT: Mr. DeFelice, I'll call on you in a 13 minute. 14 MS. GOLDMAN: -- is a representative of TSA and us and 15 obviously the defendants' liaison counsel. 16 THE COURT: I think we wanted to keep, if possible, to 17 keep the numbers as limited as possible. 18 Mr. Williamson. 19 MR. WILLIAMSON: Richard Williamson. 20 Your Honor had broached this possibility once before, 21 and we haven't had an opportunity to give it full 22 consideration, but I did discuss it a little bit with 23 Mr. Podesta and Mr. Barry, and we would like an opportunity 24 before we go down this road to really, at least on our side, 25 think it through carefully. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 46IJ911C Conference 1 One concern was whether your Honor's functioning in 2 some sort of mediator capacity would impact upon your ability 3 to then serve as the trial judge in the case. We wouldn't want 4 that to become a problem. 5 THE COURT: Why would it be a problem? 6 MR. WILLIAMSON: I am not saying it would. I am 7 saying we would like to think it through. 8 To the extent that your Honor would become involved in 9 a mediation capacity reviewing documents we might or might not 10 be able to then see, coupled with the question of whether you 11 have jurisdiction then to rule on them, is something we would 12 like to think through. Having finished the discussions with 13 Mr. Podesta and Barry, much less any other defense counsel, but 14 we talked about it -- 15 THE COURT: How long do you need to come to a 16 decision? 17 MR. WILLIAMSON: Two weeks. I don't know. We haven't 18 spoken with any of the other defense counsel. I just know it 19 is something you asked us to be thinking about, so we have been 20 thinking about it. We also like an opportunity to confer with 21 our clients. 22 MR. MOLLER: In terms of timing, whether the 23 defendants willingly go along or decide to reject your 24 invitation, I don't think we can competently address the SSI 25 issue given what we know until the Keane Commission report is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 46IJ911C Conference 1 out. 2 THE COURT: I agree. There is no point in doing any 3 of this until after July 26th, I think. 4 Mr. Barry? 5 MR. BARRY: Just to answer one of your earlier 6 questions as to who should participate in this, if we do go 7 down this road with you acting in some sort of mediating 8 capacity on SSI issues, definitely I think each of the airlines 9 individually would have to be represented there because there 10 comes an issue of fairness. 11 If you, for example, suggested to the TSA that they 12 could release something to Mr. Molar, it would be incumbent 13 upon the individual defendants to raise to you something that 14 in fairness to our defense also would have to be released by 15 the TSA. 16 So I think in terms of participation, it is not just 17 going to be liaison counsel. 18 THE COURT: Let's do this: Mr. Williamson or anyone 19 else will tell me by two weeks from today if there is 20 objection. If there is objection, I would like you to consider 21 if my role is anything different than the role of a judge who 22 inspects any proffered document and then moves that it is 23 inadmissible, whether the judge is the fact finder or the jury 24 is a fact finder, the rules of evidence make it clear that the 25 judge can see a document for the purposes of ruling on its SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 46IJ911C Conference 1 admissibility without causing a disqualification of the judge, 2 and to the extent I'm seeing documents in this process and 3 involving myself in any kind of a mediation process or 4 something similar to a mediation process, I don't see that is 5 anything different. 6 What I would do is review the documents assertedly 7 privileged and decide whether they are or are not privileged 8 and are or are not admissible. 9 Secondly, there is a jury that is going to function in 10 this case. I am not going to be the fact finder, but, anyway, 11 whoever wants to object, do it within two weeks. 12 I think after that, even before it, I think it will be 13 useful to start discussing what kind of a role I might have and 14 who might participate. It may be that when we start actually 15 developing procedure, the heavy function, it will become so 16 unwieldy that there is not much point to it, and I think the 17 practicality strikes me as more cogent than the issue of 18 disqualification. 19 I think to be effective in this process, if at all, it 20 has to be informal. It has to be consensual, and everyone has 21 to have the ability to walk away from it at any point in time 22 and say I won't do it any more. I cannot make determinations 23 of what is or is not SSI. Only the TSA can do that, subject to 24 review by the Court of Appeals. The only thing I can do is 25 move the process along by perhaps being able to confirm or test SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 46IJ911C Conference 1 the presence of relative information in a discovery process, 2 perhaps to ask of the TSA to sit down and look at a particular 3 issue and see if it really has the kind of concern that they 4 wish to raise, things of that nature. 5 In the end, it has to be your respective decision that 6 controls. I am not making rulings in this process. So let's 7 see how it goes. If there is objection to me, and the process 8 is commendable, another possibility is the magistrate judge. 9 Ms. Goldman? 10 MS. GOLDMAN: I would just like to point out that 11 after the commission report comes out, that may be a good 12 opportunity for us to have another meet and confer so that the 13 TSA can then sort the commission report out itself to determine 14 what has now been disclosed for the purposes of making these 15 determinations before you get involved. 16 THE COURT: I think the TSA must know what it says in 17 the 9-11 commission. 18 MS. GOLDMAN: I believe it is an ongoing process what 19 will be released. There is a difference between what the TSA 20 has allowed them to see and what they're going to release 21 publicly. 22 THE COURT: When you're ready for me in terms of 23 discovery, what kind of procedure they have, I will be able 24 with you to discuss this and see if any consensus can develop 25 rather than have this two-week deadline for filing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 46IJ911C Conference 1 disqualifications, but people to should add longer time and see 2 what the procedures are before they have to make up their mind 3 totally. In principle, if there is opposition to doing this, 4 it should be stated earlier. Let's move on to the next point. 5 Mr. Moller, 3 B is additional SSI document discovery, 6 and I think Mr. Barry was about to tell us the schedule. 7 MR. BARRY: Yes, your Honor. 8 Mr. Moller and I have met on a couple of occasions 9 this week, and we have come to this agreement in respect of 10 scheduling for at least the preliminary stages of the second 11 wave of discovery. 12 We have agreed that this second wave starting 13 immediately will focus on the plaintiff's discovery of American 14 Airlines, United Airlines and the security companies only, not 15 the nine carriers or any of the other defendants. 16 THE COURT: The nine carriers are who? 17 MR. BARRY: Sorry? 18 THE COURT: Who are the nine carriers? 19 MR. BARRY: There are a lot of them still left in the 20 case, your Honor. These are the other airlines and the 21 airports which the plaintiffs have sued under some joint 22 responsibility theory. 23 THE COURT: Okay. 24 MR. BARRY: We have agreed to meet and confer, the 25 lawyers for American and United, with the plaintiffs in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 46IJ911C Conference 1 separate meetings prior to July 15th. We have agreed that the 2 security companies, in separate meetings with the plaintiffs, 3 will meet and confer and complete their meet and confers by 4 August 1. 5 Within 30 days of those respective meet and confers, 6 American and United and the security companies will produce to 7 the plaintiffs all non-SSI documents to which no other 8 objections remain, such as to discovery, et cetera. We will 9 produce those same -- defendants will produce to the TSA all 10 SSI documents to which no other objections remain. 11 The object is to take the next 45 days and try and 12 eliminate as much as possible non-SSI objections to the 13 remaining documents in plaintiff's master document request. 14 If following this there are disputes, we'll have to 15 engage in motion practice and perhaps involve your Honor in 16 trying to eliminate that in some respect. 17 THE COURT: Should I be involved before the production 18 date since both of your production objections raises a 19 qualification of non-objective to materials? 20 MR. BARRY: Well, I think that is a possibility, your 21 Honor. 22 THE COURT: My habit in all my cases is to deal with 23 discovery issues myself because I find that I can do it more 24 efficiently, save a lot of money and a lot of time than if I 25 were to send the issues to magistrate judges, and I would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 46IJ911C Conference 1 follow the same procedure here. 2 MR. BARRY: I think we would prefer that, your Honor. 3 THE COURT: I'm available, you should know. 4 MR. BARRY: I think if there are issues that we can 5 meet with you without the necessity of first filing a formal 6 motion, I think we would avail ourselves of that information if 7 it included that. 8 THE COURT: I have a formal procedure in my chambers 9 rules, 2 E, which provided by joint letters by both sides, 10 instead of having an end process of one letter after another, 11 the proponents will respond to the discovery issue. After 12 meeting and conferring, you will jointly propose a letter, each 13 side stating its position. 14 I think by a 24-hour period, you are to reply by 15 endorsement. If there is a principle involved, it takes 16 longer. There is a lot of satisfaction with this procedure, 17 and I find that there are very few discovery disputes tendered 18 to me. The process works out in a way that there is agreement. 19 I have these disputes, I resolve them, and that 20 informal method is available for you to use. 21 MR. MOLLER: That is fine with us. 22 MR. BARRY: Fine. 23 MR. MOLLER: I want to add one footnote to Mr. Barry's 24 accurate statement of what our understanding is, and that is to 25 the extent that the discovery of the Boeing Company is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 46IJ911C Conference 1 necessary because it implicates an American and United aircraft 2 and issues obviously related to the case, we'll deal with that 3 in the meet and confer. I don't want the way the statement was 4 put into the record to suggest that Boeing is not within the 5 scope of this waiver of discovery. 6 THE COURT: If you want it in, just put it in. 7 MR. MOLLER: It is in. We have to do it that way. 8 We'll work that out. I don't want -- 9 THE COURT: Nothing is being waived. What we are 10 doing is sequencing discovery to be efficient. There is no way 11 those issues are coming up. 12 MR. MOLLER: I understand that. I want the record to 13 be clear that Boeing is not going to be waiting until the late 14 winter to be asked to produce documents. The Boeing name 15 wasn't uttered during our meeting. I am sure we can put some 16 language in the order that we can submit after today, your 17 Honor. 18 THE COURT: That is fine. When should I expect an 19 order on this? 20 MR. BARRY: The first part of next week. 21 THE COURT: Good. Say by a week from today will be 22 good. 23 MR. BARRY: Fine, your Honor. 24 (Pause) 25 THE COURT: We'll take non-SSI document discovery. Is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 46IJ911C Conference 1 that right? 2 MR. MOLLER: Yes. 3 THE COURT: Item C. Then we have D, non-carrier 4 airline discovery. I take it what Mr. Barry said, that is 5 going to be deferred? 6 MR. MOLLER: Yes. 7 THE COURT: I guess the next meeting, we'll take up 8 the scheduling of party and non-party deposition. 9 MR. MOLLER: Correct. At the next meeting, we'll take 10 up the non-carrier airline discovery. 11 With respect to Item E, however, the plaintiffs 12 anticipate their serving requests for deposition of non-parties 13 starting July 1, unless there is some reason the court finds we 14 ought not to be doing that. We would like to move forward with 15 discovery and depositions starting July 1. 16 THE COURT: I guess the issue is this bonus of 17 identification of document discovery. If you are going to go 18 ahead with depositions, you will probably find a problem in 19 finding information in late-produced documents that will 20 motivate you to try to recall people you've already examined. 21 I don't think that is a good idea. 22 The intent is to get depositions of people whose 23 testimony is not document-laden. I would encourage that. 24 You're going to give me a schedule of those? 25 MR. MOLLER: Yes, the answer is yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 46IJ911C Conference 1 THE COURT: I think experts should be deferred. 2 MR. MOLLER: Agreed. 3 THE COURT: I don't know, though, that we can really 4 talk about an anticipated completion date until you have more 5 information. 6 MR. MOLLER: Agreed. Our plan is -- the plaintiff's 7 plan is after we have had a chance to analyze the 9-11 8 Commission report and study it together with all of the other 9 evidence that we have am amassed, we would be in the position, 10 I would hope, in the very early fall, maybe at the September 11 hearing, if that is the next date that you put on your 12 calendar, to give you a better sense of when we would be ready 13 to go to trial. Our efforts are directed at getting this case 14 to trial as quickly as possible. 15 THE COURT: I think we need to have at least a 16 six-month notice for a trial because of the numbers of people 17 involved. 18 I don't believe we are six months away from the end of 19 discovery. So I think we need to defer the setting of 20 anticipated completion date and the setting of a trial date 21 probably for another few sessions, but we'll see. I don't have 22 any delay in my trial calendar. When you're ready, I'll try 23 you. You are not going to be waiting in line. 24 MR. MOLLER: Okay. As I said, we're looking at the 25 case now to see what is necessary and how quickly we can get it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 46IJ911C Conference 1 to trial and report back to you as soon as we have a better 2 sense. 3 THE COURT: Mr. Barry. 4 MR. BARRY: Your Honor, just in respect of these 5 non-party depositions that Mr. Moller mentioned, I understand 6 you're going to submit a schedule of when you intend to take 7 them, who they are, because we have to reserve any objections 8 we might have, your Honor. 9 THE COURT: I understand. 10 MR. BARRY: We can put language to that effect in the 11 order. 12 THE COURT: I don't think you need the order, but 13 Mr. Moller is ready for it, and I know he is going to try to do 14 it as quickly as possible. He'll involve you, and if there is 15 objection, you'll let me know and I'll deal with it. 16 MR. BARRY: Okay. I want to make sure he and I are on 17 the same page. 18 THE COURT: There are no waivers here. We can't do 19 everything at the same time, so I depend upon you to develop 20 the proper sequencing. Nobody should be laid back because you 21 have something at the first stage and there is no waiver. I 22 think that completes the agenda. Is there anything anybody 23 wishes to bring up? 24 MR. BARRY: I was going to introduce Mr. Wood, your 25 Honor, who is going to talk to you about the dispositive SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 46IJ911C Conference 1 motions that the airport authorities want to make. 2 MR. WOOD: Good morning, your Honor. 3 THE COURT: Good morning. 4 MR. WOOD: Mark Wood, on behalf of the airports Logan, 5 Dulles and Newark. 6 Your Honor, in view of the comments this morning, I 7 think it would be helpful if the airports could refile their 8 motion to dismiss. As you'll remember, we had a motion to 9 dismiss that was based on the airports' view of their duties 10 under federal statutes and regulations, and your Honor denied 11 the motion as premature, without prejudice. 12 In the year or so since that decision, we have 13 provided the airport security plans for the three airports with 14 the TSA, with the TSA looking at this issue; that is, duties of 15 the airports versus duties of the carriers, has provided 16 substitute material to the plaintiffs. 17 We provided that on April 2nd to Mr. Moller and 18 Mr. Alexander. 19 THE COURT: Substituted material? 20 MR. WOOD: Pardon me? 21 THE COURT: I didn't catch what you said. 22 MR. WOOD: This was a substituted material that was 23 provided by the TSA. So with respect to this motion, we have 24 kind of got things tee'd up here, and we would like to get your 25 Honor's permission to refile the motion, set a briefing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 46IJ911C Conference 1 schedule and reargue this because it is purely a question of 2 law. 3 The airport security man has the effect of law. It is 4 part of the regulations. It is part and parcel of the 5 regulations. So it is really an issue of your Honor looking at 6 the statute and regulations again now that this discovery has 7 been completed. 8 THE COURT: Who wishes to speak to that? 9 MR. MOLLER: Ann Vidal Hunt, who is director of 10 aviation litigation support and special action staff of TSA, on 11 April 3rd signed an affidavit to which she attached the 12 substitute for the airport security plans. 13 With respect to Logan, I would like to give you in 14 detail everything that we now know from this document about 15 Boston Logan International Airport. All security checkpoints 16 are maintained and operated by designated air carriers pursuant 17 to FAR 108, the second sentence, airport and airline 18 authorities have formed the ATA Security Committee, which meets 19 regularly to facilitate communication between the airlines and 20 the airport. That's it. 21 We need more discovery. We need more time. We need 22 to see what the 9-11 Commission report says about the airport. 23 There is a CTI report that was out that we were required to 24 give back, which constituted an indictment, to my knowledge, of 25 operations at Logan, which were just horrific. I am not ready SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 46IJ911C Conference 1 to commit to a motion to dismiss at this time. 2 MR. WOOD: Your Honor, our motion was very narrow, 3 went to the issue of the responsibility for passenger 4 screening. I don't disagree with Mr. Moller that there very 5 well may be other matters covered by the airport security plan; 6 for example, badging of employees or control of the runways. 7 But the TSA has gone through and taken a look and 8 provided this substitute which Mr. Moller has accurately read 9 to your Honor for the purpose of this motion, which is what are 10 the duties of these three airports with respect to the issue of 11 the screening of passengers who boarded these flights. 12 THE COURT: Doesn't -- 13 MR. WOOD: It doesn't say anything about the Keane 14 Commission or CTI report or anything else that is going to bear 15 on that legal question. 16 THE COURT: -- doesn't the second sentence, which 17 suggests that the airports were involved in committee 18 discussions with others, suggest the responsibility on the part 19 of the airports? 20 MR. WOOD: Not that would change a federal statute or 21 federal regulations, your Honor, with respect to the issue of 22 duty. Of course, there are meetings amongs the airports and 23 the people who are using the airports. 24 THE COURT: Does the statute provide that there is no 25 responsibility on the part of airports? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 46IJ911C Conference 1 MR. WOOD: It very carefully divides responsibility. 2 Airports, for example, have responsibility for the 3 runways, for the apron areas, for the badging of employees at 4 the airport. It is very clear, your Honor, under Part 108, as 5 we went through with the charts and so forth, that the 6 responsibility for passenger who go through the screening 7 system and board the airplanes is not a responsibility that is 8 delegated or within the authority of the airports. 9 THE COURT: Mr. Wood, my policy is not to require my 10 approval if anybody wants to make a motion. I don't have a 11 premotion clearance procedure. 12 But from what I hear, I suspect that I will find it 13 premature. I don't think it is sound judicial policy at this 14 kind of early stage -- and "early" means we have taken over for 15 a year -- at this kind of early stage before there has been any 16 appreciable discovery to make rulings. I can rule for you, and 17 next month there might be some document that is produced that 18 would make my ruling completely unreliable. 19 Until we have some reliability as to what the scope of 20 discovery on all issues is going to be and how the events of 21 September 11th unfolded, I think I would want to be very 22 cautious before I made rulings on dispositive motions. 23 MR. WOOD: Well, your Honor, we would -- 24 THE COURT: But you can try to persuade me 25 differently. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 46IJ911C Conference 1 MR. WOOD: One of the things that occurred to me, 2 listening to the earlier discussion, is that this might be an 3 apt pilot for dealing with issues such as the one that 4 Mr. Moller raised; that is, whether or not this SSI substitute 5 is appropriate, is adequate. 6 THE COURT: You mean my mediation effort is -- 7 MR. WOOD: Yes. By putting a motion on file, it would 8 focus things and we would be talking about these in the context 9 of a real live legal issue. 10 THE COURT: I would be more worried about 11 Mr. Williamson's point, that I would become so involved with 12 the details of the mediation procedure so as to make it hard to 13 be independent with regard to the motion itself. 14 Frankly, I feel if there were a motion on file, I 15 would want to be briefed by what the papers and the arguments 16 disclose to me rather than what I might learn independently. 17 The answer, Mr. Wood, is that you don't have to get 18 clearance from me. If you want to make the motion, make it. 19 You know my view. I think you're better off waiting. 20 MR. WOOD: Thank you, your Honor. 21 THE COURT: Anything else? 22 Let's talk about when the next meeting might be. 23 Mr. Moller, you suggested a number? 24 MR. MOLLER: I suggest September. I would suggest 25 that in September, the date be after the anniversary of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 46IJ911C Conference 1 September 11th. 2 (Pause) 3 THE COURT: September 27th, which is a Monday, at 4 10:00 am. 5 MR. MOLLER: September 27th, 10:00 am? 6 THE COURT: Yes. 7 Another possibility is September 24, which is a 8 Friday, at 11:00. 9 MS. GOLDMAN: Your Honor, the 27th is better on my 10 calendar. 11 THE COURT: May I see a show of hands who prefers a 12 Monday and Friday? For Monday? Friday? Do it again. 13 (Pause) 14 MR. MOLLER: Take your pick. It doesn't make a 15 difference. 16 THE COURT: We'll do it on Friday, September 24, at 17 11:00 o'clock. I have a criminal trial scheduled that week, 18 and I tend to work on the criminal trials Monday through 19 Thursday. I would rather leave Monday free. 20 We'll do Friday, September 24, at 11:00 o'clock. Have 21 a good summer. Make good progress. I will be around if you 22 need me. 23 (Court adjourned) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300