1 668twtcc Conference 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 IN RE: 3 SEPTEMBER 11 LITIGATION 21 MC 97 (AKH) 4 21 MC 100 (AKH) 4 21 MC 102 (AKH) 5 5 ------------------------------x 6 6 New York, N.Y. 7 June 8, 2006 7 4:30 p.m. 8 8 Before: 9 9 HON. ALVIN K. HELLERSTEIN, 10 10 District Judge 11 11 APPEARANCES 12 12 KREINDLER & KREINDLER 13 Attorneys for Plaintiffs WD/PI 21 MC 97 13 BY: MARC S. MOLLER 14 BRIAN J. ALEXANDER 14 15 GREGORY P. JOSEPH LAW OFFICE 15 Attorney for Plaintiff IRI 16 BY: DOUGLAS J. PEPE 16 17 CLIFFORD LAW OFFICES 17 Attorneys for Plaintiff IRI 18 BY: ROBERT A. CLIFFORD 18 TIM TOMASITZ 19 19 BAUMEISTER & SAMUELS 20 Attorneys for Plaintiffs 20 BY: DOUGLAS A. LATTO 21 21 MOTLEY RICE 22 Attorneys for Plaintiffs 22 BY: DONALD A. MIGLIORI 23 23 BATES & CAREY 24 Attorneys for Plaintiff American Re-Insurance 24 BY: ARTHUR F. BRANDT 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 668twtcc Conference 1 UNITED STATES DEPARTMENT OF JUSTICE 1 UNITED STATES ATTORNEY'S OFFICE 2 SOUTHERN DISTRICT OF NEW YORK 2 Attorneys for Defendant 3 BY: SARAH SHEIVE NORMAND, AUSA 3 BETH E. GOLDMAN, AUSA 4 4 QUIRK & BAKALOR 5 Attorneys for Defendant United Airlines 5 BY: JEFFREY J. ELLIS 6 6 MAYER, BROWN, ROWE & MAW 7 Attorneys for Defendant United Airlines 7 BY: MICHAEL ROWE FEAGLEY 8 8 DEBEVOISE & PLIMPTON 9 Attorneys for Defendant American Airlines 9 BY: ROGER E. PODESTA 10 10 CONDON & FORSYTH 11 Attorneys for Defendant 11 BY: DESMOND T. BARRY, JR. 12 12 RICHARDS, SPEARS, KIBBE & ORBE 13 Attorneys for Defendant Boeing 13 BY: BRIAN S. FRASER 14 14 JONES, HIRSCH, CONNORS & BULL 15 Attorneys for Defendant Globe Aviation Services 15 BY: JAMES P. CONNORS 16 16 SIMPSON, THACER & BARTLETT 17 Attorneys for Defendant Argenbright Security 17 BY: JOSEPH WAYLAND 18 18 SUSMAN GODFREY 19 Attorneys for Defendant Huntleigh 19 BY: LEE GODFREY 20 20 FLEMMING, ZULACK, WILLIAMSON & ZAUDERER, L.L.P. 21 Attorneys for Defendants Port Authority of NY and NJ and 21 World Trade Center Properties, L.L.C., in 21 MC 97, 21 MC 100, 22 21 MC 101 and 21 MC 102 22 BY: JASON T. COHEN 23 CATHI A. HESSION 23 M. BRADFORD STEIN 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 668twtcc Conference 1 SCHIFF HARDIN 1 Attorneys for Defendants Port Authority of NY and NJ in 2 WTC 7 2 BY: BETH JACOB 3 3 CONNELL FOLEY 4 Attorneys for Defendant Colgan Air 4 BY: JEFFREY W. MORYAN 5 5 GALLAGHER, GOSSEEN, FALLER & CROWLEY 6 Attorneys for Defendant Delta Airlines 6 BY: MICHAEL J. CROWLEY 7 7 O'MELVENY & MEYERS 8 Attorneys for Defendant Massport 8 BY: MARK WOOD 9 9 ST. JOHN & WAYNE 10 Attorneys for Defendant Continental Airlines 10 BY: DOUGLAS H. AMSTER 11 11 DOMBROFF & GILMORE 12 Attorneys for Defendant Dulles Airport - MWAA 12 BY: KAREN M. BERBERICH 13 13 CAMPBELL, CAMPBELL, EDWARDS & CONROY 14 Attorneys for Defendant US Airways 14 BY: CHRISTOPHER R. HOWE 15 15 SATTERLEE, STEPHENS, BURKE & BURKE 16 Attorneys for Defendant AirTran 16 BY: ROBERT M. CALLAGY 17 17 AZREAL, GANN & FRANZ 18 BY: JUDSON H. LIPOWITZ 18 19 ZELLE, HOFMANN, VOELBEL, MASON & GETTE 19 BY: STEVEN J. BADGER 20 20 HANLY CONROY 21 BY: ANDREA BIERSTEIN 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 668twtcc Conference 1 (In open court) 2 THE COURT: It appears that the environment has 3 shifted. I issued the order because I was concerned when I saw 4 the number of lawyers who wished to have clearances that you 5 were creating an unwieldy procedure. Now it appears that there 6 seems to be less of a scope of SSI, more production is coming 7 out, and perhaps less concern that everything that we touch 8 will compromise SSI. But concerns do remain, and the number of 9 people who wish to be involved in depositions suggest that the 10 depositions will have to be conducted not in an office but in 11 the Hollywood Bowl, which is not very desirable because music 12 is much better for the ear than deposition testimony. 13 I thought that was funny. But how are we going to 14 proceed, Mr. Moller? 15 MR. MOLLER: Good afternoon, your Honor. First I'm 16 glad that we have reached the point where there has been -- 17 THE COURT: What happened to your arm? 18 MR. MOLLER: I was trying to work out a deposition 19 protocol and injured my rotator cuff. 20 I'm glad we reached the point where there has been 21 some enlightenment at the TSA, as we see it, and that we can 22 begin to look forward to getting documents that are more 23 helpful. 24 It seems to me that depositions can go forward without 25 clearances at least in the first instance, and that we should SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 668twtcc Conference 1 just view them as Rule 30 depositions; whoever wants to attend 2 can attend, and the liaison counsel will organize among 3 themselves, as they would in any complex litigation, who asks 4 the questions. I don't expect it would be more than two people 5 per witness from our side, maybe with a third back up, and we 6 go forward. 7 THE COURT: Including Mr. Clifford and including the 8 Port Authority. 9 MR. MOLLER: Including Mr. Clifford and including the 10 Port Authority. 11 All of the concerns that were addressed by your Honor 12 in the various orders were precipitated by TSA issues. And if 13 we didn't have TSA, it would be a complex litigation and we 14 would go just forward. And the Hollywood Bowl may be 15 stretching it a little but, one room with 30 chairs probably 16 will accommodate everybody. We go forward with the 17 depositions, assume the TSA is there, and TSA asserts SSI 18 objections to what I would expect would be a very limited 19 number of questions. If the redactions in the COG are any 20 measure, frankly I can't imagine what would be major that would 21 still be SSI. Assume that there is an SSI objection, we have 22 to preserve it in some way, your protocol might well come into 23 play. And then to the extent -- 24 THE COURT: Except that the deposition room has 25 changed; it's not populated only by people with clearances, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 668twtcc Conference 1 it's populated by people who have not been cleared. 2 MR. MOLLER: You might still need some lawyers who are 3 cleared to deal with that. But we can only know how big or 4 small the SSI issue is after we get started. So that to me 5 says get started with the depositions, see the scope of the SSI 6 problem, if there is one. 7 THE COURT: Mr. Barry wants to start a month or two 8 from now rather than now. 9 MR. MOLLER: I'm not prepared to agree that that's a 10 reasonable period of time, but we'll follow. 11 THE COURT: But you're not objecting; are you? 12 MR. MOLLER: I'm objecting, but I'm not going to the 13 mat on it. There is some logic to it, but frankly, if we have 14 the first round of depositions sooner, we can get a sense of 15 whether there is or is not a problem. 16 THE COURT: Ms. Goldman, is the TSA's house in order 17 on this issue? 18 MS. GOLDMAN: If your Honor's question is going to the 19 clearances issue -- 20 THE COURT: No, it goes to the idea of whether you 21 really have clear marching orders. If you're covering this, 22 you or Ms. Normand are covering this, and the marching orders 23 are unclear, you're in an impossible position. I'm not going 24 to put you into it. 25 MS. GOLDMAN: Maybe I can give you a little bit of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 668twtcc Conference 1 enlightening about our thinking of depositions at this point. 2 Let's put it this way: There is a scenario under which the TSA 3 would be comfortable proceeding without clearances and that 4 would be this: It would be if he -- let me step back for one 5 second. 6 Notwithstanding the rereview of the documents, the 7 policy remains the same. That is, TSA is reviewing documents 8 again to determine whether there are items that they had 9 previously designated as SSI that no longer need to be 10 designated as SSI. That being said, I think as your Honor 11 recognized earlier, there is still SSI and there is still TSA's 12 policy that SSI will not be disclosed in litigation, including 13 this one. So the final order of February 7th, 2006 is still in 14 play. 15 That being said, there will be SSI objections at a 16 deposition. And to the extent we can have assurances from the 17 parties that they would not, at the deposition, seek disclosure 18 of that SSI or seek an order from your Honor to disclose the 19 SSI at that time, then we could proceed. That is, we would 20 proceed, we would make objections as necessary and preserve the 21 objection and possibly preserve the answer after the fact in 22 written form for review. But we could do -- 23 THE COURT: What would happen if a witness was asked a 24 question about which there had been no final determination of 25 SSI, but you as counsel thought that possibly there might arise SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 668twtcc Conference 1 such an order; you would object, presumably, and instruct the 2 witness not to answer. Mr. Barry, let us say, counsel for the 3 witness, finding that it would be in the interest of his client 4 to answer, takes issue with your instruction. Without the 5 protocol that I expressed, Mr. Barry's witness would be in 6 jeopardy of potential criminal prosecution. My order protects 7 that witness. 8 MS. GOLDMAN: Your Honor, if we are going to -- 9 THE COURT: But my order depends on a deposition room 10 that has few lawyers, all of whom are cleared. 11 MS. GOLDMAN: We are happy to proceed that way and we 12 think there are many advantages to it, but in light of the 13 suggestion by the parties both in their letters and today that 14 maybe we could go forward without clearances, I think the only 15 way we could go along with that would be to modify your 16 protocol and to put off for another time those SSI objections. 17 But we are perfectly happy to proceed the other way, with the 18 clearances and with the fewer people in the room, and to follow 19 the process that your Honor intended before. 20 THE COURT: I think, Mr. Moller, your view is more 21 optimistic than the circumstances would suggest, and that what 22 we need is a restricted list of attorneys who may be present, 23 which list should include proper representation for the 24 property interests for the Port Authority. I think -- I don't 25 know if there are enough clearances already in existence to go SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 668twtcc Conference 1 ahead or whether we have to pause, but it's clear to me that we 2 cannot go ahead in the circumstances allowing all the attorneys 3 identified in your letter and Mr. Barry's letter to be present. 4 MR. MOLLER: I'm not suggesting that we abandon 5 clearances and that we totally abandon your protocol. I'm 6 suggesting that as a matter of percentages of questions, let's 7 assume that 90 percent of the deposition involves no SSI 8 issue -- 9 THE COURT: I don't think I would ascribe to that 10 assessment. I think -- since I don't require Ms. Goldman to 11 respond or Ms. Normand to respond, I think there is sufficient 12 uncertainty to require them as careful and good lawyers to 13 object much beyond where you think they should object, and they 14 would be in good faith to do so. And I think that creates a 15 danger that the depositions will not proceed in an efficient 16 way. Mr. Clifford wants to say something. 17 Mr. Clifford yields to Mr. Moller. 18 MR. CLIFFORD: He's older and wiser. 19 THE COURT: The representative from Chicago yields to 20 the representative from New York. 21 MR. MOLLER: The number of attorneys for whom we 22 sought security clearances, including the property people, 23 numbers 8, 12, 14. 24 THE COURT: Too many. 25 MR. MIGLIORI: Will Mr. Clifford yield time to me, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 668twtcc Conference 1 your Honor? Don Migliori. 2 THE COURT: Why aren't you settling your cases? 3 MR. MIGLIORI: We're working on it. 4 THE COURT: You're not working hard enough. 5 Ms. Birnbaum tells me she is getting no response from you. 6 MS. GOLDMAN: We actually have a date set this coming 7 week. 8 THE COURT: You told me that two days ago. 9 MR. MIGLIORI: She set a date for next week. 10 THE COURT: Tell your colleagues that the judge is 11 getting very impatient with this. 12 MR. MIGLIORI: I will. 13 THE COURT: And will not put up with more delay. 14 There's much too much delay that has gone by and much too much 15 to be work done in this case. I will not tolerate it. I will 16 call a mediator. 17 MR. MIGLIORI: That's not why I stood up. 18 THE COURT: I know, but I want you to know my reaction 19 on this. 20 MR. MIGLIORI: We have 15 cases that we very 21 aggressively mediated, and we have responses due on those 15, 22 and we're prepared to respond to suggest the next round. So in 23 defense of my colleagues and me, who have been part of those 24 mediations, I think we have worked very well with defendants to 25 move towards those. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 668twtcc Conference 1 The problem is we have 15 decisions to make on issues 2 that relate to tax structures and all the issues, and that's 3 the only delay that's been going on in the past two weeks in 4 terms of resolution. So tax advisors and the like are getting 5 back to us. But we promised Ms. Birnbaum a response by a date 6 and we have every intention of complying with that. 7 On this issue, of the 14 lawyers on our list, five of 8 them are from my firm. Five of us are not intending to be at 9 any one deposition, but because we're so involved in each one 10 of these liability issues, we would like for the process to 11 apply to five different lawyers. Because, with respect to 12 United, for example, I am going to be at that deposition; with 13 respect to American, there will be another lawyer who is 14 working on that component of liability. So I want the Court, 15 in making this decision, to be aware that the 14 doesn't 16 represent 14 people, at least from our perspective representing 17 more than a third of that, 14 people are going to be there, 18 only one person from our firm needs to be at any given 19 deposition. 20 THE COURT: But that's got to restrict the list, 21 because otherwise the burden on TSA is clear in allowing the 22 depositions to go on a timely basis is too great. They're not 23 going to be able to do all the clearances. The issues are 24 common. Mr. Barry advises me, and I have no reason to 25 disbelieve that, that there are different issues between United SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 668twtcc Conference 1 and American. And we're dealing with United and American, the 2 situation. 3 So I can understand from the defendant's point of view 4 why they need representation, but the overlay of interest is 5 also great, and it seems to me that we do not need more than 6 two lawyers or three lawyers or four lawyers representing all 7 the plaintiffs. We don't need a complete alignment between 8 lawyers and clients in this issue. It is possible to have a 9 delegation representing the whole. And that's what I want. I 10 don't want 14 lawyers in that room, I don't want ten lawyers in 11 that room representing the plaintiffs. 12 MR. MOLLER: Your Honor, frankly I'm mystified by TSA 13 saying that clearing lawyers is such a big deal. They said at 14 one point in time that the lawyers would be subject to the same 15 security screening as people who worked for the security 16 government. Here's what you have to be: 18 years old are or 17 older, no convictions, pass a drug test, have a high school 18 diploma -- I can vouch for most of my colleagues -- be able to 19 read and understand English, be able to issue verbal directions 20 in English. Be able to sit, stand, lift and/or bend through a 21 shift. This is not -- 22 THE COURT: That disqualifies most of the lawyers. 23 MR. MOLLER: Maybe some judges, too, but this is not a 24 big deal. This is not a big deal. This is an exaggeration of 25 a difficulty. I don't know where TSS comes up saying that it's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 668twtcc Conference 1 a big deal to give security. 2 THE COURT: Is it a big deal, Ms. Goldman? 3 MS. GOLDMAN: I'm not sure what Mr. Moller is 4 referring to. I don't that I that we ever said -- 5 MR. MOLLER: Referring to 8.1 of the COG. 6 MS. GOLDMAN: But the clearance procedures for lawyers 7 is not going to be that procedure. 8 I don't think TSA's position is that it's a huge 9 burden. It's a huge burdens to do 80 people or 125 once was on 10 the list and 80 once it was reduced. That is a burden for an 11 agency that has limited resources. But it's not simply a 12 resources issue. If in fact -- it's our position that SSI will 13 not be disclosed or we will try to prevent SSI from being 14 disclosed; and we hope that won't happen, but if some is, it 15 needs to be a very limited group of people in the room. 16 THE COURT: I rule in your favor. 17 MS. GOLDMAN: Thank you. 18 THE COURT: As far as it goes for very few members. 19 Mr. Clifford, everybody jumped in ahead of you. 20 MR. CLIFFORD: Good afternoon, Robert Clifford. 21 Judge, several things; the property damage plaintiffs 22 were not made aware of the TSA epiphany until initially 23 receiving word from Mr. Moller and Mr. Barry respectfully 24 through their letters. That is to say that this new position 25 by the TSA is something that we weren't counsel on or nor was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 668twtcc Conference 1 any inquiry made of me, and I suspect the same is true for 2 Mr. Williamson. 3 Our view is that -- and Ms. Goldman just alluded to 4 it, this whole notion of clearance, she has yet to speak to the 5 quote, unquote, need to know standard that she heretofore has 6 said. So we take the view that liaison counsel, through the 7 responsibilities that we have, complex litigation manual, can 8 make judgments -- and we will make those if you direct us to do 9 so -- about how many people can be in these depositions and how 10 many won't be. And the manual on complex litigation is clear 11 about that. And we will do that. 12 The whole notion of the number of lawyers that are 13 cleared, if it is an issue, is that ultimately we would not 14 have only two lawyers throughout the entire case, the same 15 lawyers A and B, we would like to be able to take from a pool 16 of lawyers to resolve that. And so one of the ideas that we 17 had -- I'm very taken aback by what has gone on with the TSA. 18 I don't know the origin of it, whether it's what occurred in 19 Moussaoui or occurring currently in the Congress or what is 20 occurring with the Carlo Martin investigation and litigation, 21 but we thought that's at least an idea to float by you. 22 Maybe we're all making much to do about nothing, and 23 that is to say that maybe, your Honor, Ms. Goldman is obviously 24 taking direction from someone. Historically she's not been 25 willing to telling us who that is. Maybe now she would be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 668twtcc Conference 1 willing to tell your Honor and your Honor can speak to this 2 individual, because it may well be that the SSI issues have 3 largely evaporated in some respect. But I share your cynicism, 4 I doubt it greatly. But we have still legitimate concerns 5 about many of these issues, but we think that we have got to 6 get these depositions going along. 7 The two that have been scheduled, logic tells me that 8 those depositions would be better served by giving Mr. Barry 9 the delay, the adjournment that he asks for. So on behalf of 10 property damage plaintiffs -- and it's not a universally shared 11 view, but we don't object. And yet we do think that the TSA 12 really has to be a little more forthcoming to reconcile some of 13 these statements, because heretofore she has said cleared does 14 not mean they can even hear SSI. So it's a red herring. Your 15 protocol is still not going to be followed, according to what 16 she said in the past. And I really think we need to speak to 17 that or someone needs to come to you. They're a party here, 18 you can order them to do it, to explain this. You don't need 19 to be there, let them talk with the Justice Department. 20 THE COURT: I don't have jurisdiction over the TSA, 21 and I'm not going to issue orders or even requests. I don't 22 have jurisdiction. I have jurisdiction, as I have explained, 23 over the depositions, and that's what I'm doing. That's the 24 jurisdiction I'm exercising. 25 It's clear to me they can't start on Monday, so we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 668twtcc Conference 1 have to find another date. But I want small delegations. I 2 don't want a lot of lawyers in the room. I want to anticipate 3 that SSI will be an issue to some degree in some form. I want 4 to give as much comfort as I can to the lawyers for TSA and the 5 TSA. I have no knowledge of the processes that they find 6 persuasive, and I don't need to, but the less pressure that I 7 can put upon them, the better, consistent with allowing these 8 depositions to go forward. That means small delegations. That 9 means, Mr. Moller, that not everybody who wants to go into the 10 room will be able to go into the room. And if liaison counsel 11 is not able to make that decision, I'll make the decision. 12 I'll regulate who can go into the room. 13 I want representation that is fair, but that doesn't 14 mean that there has to be a perfect alignment of clients and 15 lawyers. I want a delegation that will be effective, that will 16 see things from the property point of view and from the 17 personal point of view. 18 MR. MOLLER: Mr. Migliori makes a very important point 19 which underscores the need for more than a handful of people, 20 and that is the same lawyers cannot, in good time, prepare 21 themselves and conduct every deposition in this case, or these 22 cases, I think. 23 THE COURT: Well, sometime they have to. 24 MR. MOLLER: Sometimes they have to. 25 THE COURT: These are big enough that one more can be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 668twtcc Conference 1 dedicated to -- 2 MR. MOLLER: Even though the Motley firm will populate 3 depositions with one or two people, our firm will, 4 Mr. Clifford's firm will. So the number of people that we have 5 suggested frankly would, it seems to me, to accommodate your -- 6 I understand what you are saying -- your intent to have the 7 room not crowded and that the SSI issues in the case are 8 reasonably protected, so we can move people in and out. And 9 five from the Motley firm, three that Mr. Azrael's firm 10 requested, Mr. Clifford has indicated to me that they would be 11 comfortable with four, and Mr. Williamson has said, he's here 12 that they will be comfortable with two. That doesn't mean that 13 both Mr. Williamson and Brad Stein will show up at all of them, 14 but that it seems to me to be common sense. I frankly think 15 that the issue of numbers of people is more one that the 16 defendant should be concerned about than us. 17 THE COURT: I'll deal with the defendants in a minute. 18 MR. MOLLER: We have a very small list. 19 THE COURT: But not small enough. 20 MR. MOLLER: Pardon? 21 THE COURT: Not small enough. If Mr. Clifford needs 22 two, that means the two must talk. If Mr. Migliori needs four, 23 that means the four must talk. 24 MR. CLIFFORD: One observation, your Honor. I think 25 our vision of how these depositions would take place is that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 668twtcc Conference 1 one or two, no more than two people from the plaintiffs' side 2 of this, would be delegated or designated as the principal 3 examiners of any given witness with the other people that would 4 be permitted to attend simply to supplement in a 5 non-duplicitous way or even feed questions to the principal 6 examiner. That's been my experience in the past, and it works 7 quite well that way. 8 THE COURT: But this is an unusual case. There's two 9 facets of it; one is to elicit the information from the 10 witnesses, the second is to make use of the information in the 11 prosecution of the separate cases. This is a case, in my 12 judgment, that calls for distinction between those two 13 functions. 14 In the first breath, a small delegation of lawyers can 15 elicit all the relevant information and require of the 16 witnesses to speak to the fullest extent of their knowledge 17 without instructions to prevent testimony from going forward; 18 or should there be instructions, without these instructions 19 being heeded. I set up a protocol wherein TSA can then review 20 the transcripts, the full transcripts. If the transcripts come 21 back heavily redacted, we'll have a problem with the use of the 22 information that has been elicited. We'll deal with it in some 23 fashion. If, as I believe, the redactions will be slight, then 24 I think we will have hardly a problem in the use of the 25 information. Very little. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 668twtcc Conference 1 If TSA is nervous about this procedure and doesn't 2 want to go through it, they'll have to mandamus me. If the 3 plaintiff's feel that they're not getting enough information to 4 make use of, there will be other orders that will deal with 5 that, and then maybe appellate review in some form or another, 6 very likely to be. But this way the show goes forward. TSA 7 has as much levels of confidence as a district court can give 8 and we can prosecute these cases. That's the program I have. 9 And unless I hear something that persuades me differently, 10 that's the problem I'm going to have. 11 MR. MOLLER: May I say one other thing? Maybe it 12 mediates your views somewhat. If we can have the clearances 13 that we have requested so that we can move people to the 14 depositions and staff them appropriately, we can agree to limit 15 the number of people who might attend a particular deposition 16 to a given number without compromising the interest of the 17 various firms. 18 THE COURT: Not true, because the persons, if they're 19 not the same persons, have to be briefed on what the other 20 witness has already said. And that's before TSA has a chance 21 to review and decide what has to be redacted. 22 MR. MOLLER: Ms. Goldman indicated it me, and correct 23 me if I'm wrong, that TSA could clear six people in about a 24 week. So that means they could clear our list in two weeks. 25 It's not the clearance issue that drives this thing. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 668twtcc Conference 1 THE COURT: No, I agree. 2 MR. MOLLER: And I believe that appropriately 3 instructed with whatever protective orders and confidentiality 4 obligations the lawyers who attended depositions are placed 5 under, we can accommodate TSA's interest and the Court's 6 interests and the litigants' interests. 7 THE COURT: What do you say, Ms. Goldman? 8 MS. GOLDMAN: Your Honor, it might be useful to hear 9 what the defendants have to say, because part of the issue here 10 is we hear 12, 14, 16 from plaintiffs then 20, the number 11 starts to get quite large. 12 THE COURT: Let's hear from Mr. Barry. 13 MR. BARRY: Where to begin? Number one, as I said in 14 my letter, I think it is absolutely essential that each 15 defendant who the plaintiffs have -- 16 THE COURT: Hold just a minute, are the attorneys on 17 the sentencing here? 18 Come up for a minute, please. 19 (Pause) 20 THE COURT: All right, Mr. Barry. 21 MR. BARRY: Thank you, your Honor. 22 I think the best way to pursue this right now is to 23 wait and see the newly reviewed documents from the TSA. 24 THE COURT: I waited for TSA for too long. No, we're 25 not going to wait. We have to wait a little bit to get this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 668twtcc Conference 1 house in order, but we're not going to wait for TSA to get its 2 house in order because I don't know how long it will take. 3 MR. BARRY: Ms. Goldman promises -- 4 THE COURT: She's in no position to promise. 5 MR. BARRY: She has promised, though, they will be 6 able to get the entire first wave of documents reviewed and 7 redacted within 45 days. If that is case and they do that 8 redaction in the same manner that they have done the COG, which 9 you have seen, 99 percent of what they said was SSI previously 10 is going to become fully discoverable. 11 So I think it would be a waste of time and energy on 12 the part of counsel to proceed without looking at what they are 13 going to give and what the plaintiffs and the defendants have 14 wanted to see and be able to share. So I think -- really I 15 don't think that's a long time to wait to see how, if we can 16 proceed then with depositions that are going to be efficient, 17 rather than sitting around doing something that we're only 18 going to see half of the documents or even less than half. 19 In respect to the clearances, as I said to 20 Ms. Goldman, I really don't see an issue now with clearances if 21 the TSA is going to reredact these documents to divulge 22 essentially what they have said has been SSI in the past. And 23 they want to instruct the witness not to answer it during the 24 deposition, we will abide by that instruction and have it 25 resolved later. I think the plaintiffs would as well. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 668twtcc Conference 1 THE COURT: No, I will not allow such an adjournment, 2 even if it means that witnesses may have to come back. I 3 usually am reluctant to do this, but this case is five years 4 old and it must go forward. 5 Mr. Clifford? 6 MR. CLIFFORD: Your Honor, so it's clear from our 7 perspective, and I thought Mr. Moller said this, we're prepared 8 to take these depositions Monday. And I just find a certain 9 logic to this whole notion that you're going to take a better 10 dep of this individual if you have paperwork pertaining to them 11 that you didn't have before. 12 THE COURT: That may be, but we don't know what would 13 happen, we don't know to what extent there will be redactions. 14 The COG or the checkpoint operations guide suggests there will 15 be a much greater liberality, but I don't know. And then there 16 will be redactions even then, so the witness has to come back 17 still another time. 18 MR. CLIFFORD: If we get a pool of lawyers and you let 19 liaison counsel for at least on the plaintiffs' side to make a 20 decision to have a defined number, whether two or four -- part 21 of the problems is logistics. We have people flying to 22 Portland, here and there. To get it done mechanically takes 23 some staff. So give us the staff and we'll make sure the room 24 isn't filled with a bunch of people asking inane questions. It 25 can't happen. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 668twtcc Conference 1 THE COURT: We can't have the kind of lawyers and the 2 kind of staffing that we would have in ordinary cases because 3 the communication element among those lawyers creates the 4 potential of compromise that Ms. Goldman is concerned about. 5 MR. CLIFFORD: But if they're cleared -- it would mean 6 I can't talk to Brian Alexander about what the witness said 7 yesterday? 8 THE COURT: If there's an elements beyond the 9 clearances we talked about. 10 Mr. Barry? 11 MR. BARRY: Your Honor, I think TSA said they could 12 have the documents in 45 days. It's going to take -- if with 13 we're going to go through the clearance routine, it's going to 14 take at least that long to clear the plaintiffs' lawyers that 15 need to be cleared, plus the defense lawyers. 16 THE COURT: Let's go back. There are witnesses 17 representing how many airlines? 18 MR. BARRY: We have got 20 aviation defendants, 19 including airlines. 20 THE COURT: Witnesses represent how many airlines? 21 MR. BARRY: Two. 22 THE COURT: American and United. 23 MR. BARRY: Correct. 24 THE COURT: Okay. How many lawyers do you need 25 representing United, which your client is -- you're liaison, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 668twtcc Conference 1 there's four of you. 2 MS. GOLDMAN: Can I offer one thing? I'm sorry to 3 interrupt, but with respect to if a witness comes from United, 4 those lawyers from United do not have to be cleared for that 5 deposition. 6 THE COURT: But it's necessary that American's lawyers 7 are also there. 8 MS. GOLDMAN: And they're the ones that have to be 9 cleared. But our position is they can have as many lawyers as 10 they want from United for the deposition. 11 MR. BARRY: That doesn't solve the problem. 12 THE COURT: It's not the lawyers from that witness, 13 it's the lawyers who are interested in that witness. 14 MR. BARRY: Correct. 15 THE COURT: That is key. So let's say there are two 16 from each party, and maybe one or two that have a 17 representative quality for all the other airlines, which are 18 derivative really anyhow. 19 MR. BARRY: You have other airlines. 20 THE COURT: There are security companies involved, 21 there are airlines involved, airports involved. 22 MR. BARRY: Boeing is involved, all with separate, and 23 in many respects, conflicting interests. I really think, your 24 Honor, that to try to lump them together and say one lawyer is 25 going to represent a group of defendants I'm afraid is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 668twtcc Conference 1 extremely dangerous. 2 THE COURT: My view of it is that American should have 3 two, United should have two, and there should be three more 4 lawyers who have a representative obligation to all the other 5 defendants with the mind that the reporting out obligation is 6 not going to be able to be implemented until we go to the next 7 step following redactions by TSA of the transcript. 8 Now I know this is far less than ideal, there may be 9 even arguments of due process that could be raised, which in my 10 judgment will not be substantial arguments, but they could be 11 raised. And maybe the appellate courts will disagree. I know 12 and I have confidence that in the course of time I could remedy 13 the limitations that I am now imposing, but I think these 14 limitations are critical to get this show going. So I would be 15 prepared, and Ms. Goldman can then deal with this issue, two 16 from American, two from United, three for the other defendants 17 generally. 18 MR. BARRY: For all the other defendants generally? 19 THE COURT: All the other defendants. The 20 manufacturer, the airports, the security companies and the 21 other airlines. If we need to have four, we could do four, but 22 it could work. 23 MR. BARRY: How does a lawyer representing 24 Argenbright, for example, report on a deposition to a party 25 that he could possibly have an adverse interest with? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 668twtcc Conference 1 THE COURT: Because all the security companies seem to 2 have a common interest. 3 MR. BARRY: But they don't, Judge, they have 4 different -- there are different airports, they have different 5 contracts, they have different facts that apply to them. 6 THE COURT: How many airports is the American 7 representative going to be talking about? 8 MR. BARRY: He's talking about two airports. 9 THE COURT: It could be done. It could be worked out. 10 MR. BARRY: I think you should hear from the security 11 companies on this, your Honor, because I know that they're 12 extremely upset about this concept. 13 THE COURT: Mr. Barry, you know my friend Lamar, 14 you're liaison counsel, you pare down that list to the bare 15 essentials, get enough lawyers so that the parties that have 16 divergent interests have some form of representation. They're 17 not likely to be asking questions at the deposition, they're 18 likely to be listening to the deposition for the purpose of 19 advising their clients what is going on. That advice is going 20 to be a second stage, the same way the plaintiff's advice is 21 going to be a second stage. All the security companies, the 22 manufacturer, the aircraft, the airports, the other airlines, 23 they're in the same position as all the other plaintiffs. 24 MR. BARRY: I don't think that's true, your Honor. 25 THE COURT: Every plaintiff wants to know how to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 668twtcc Conference 1 evaluate the information to assess the strength of his or her 2 case. Every defendant wants to know to what extent the witness 3 has helped or harmed the interest of that particular client. 4 It's the same. 5 But as I posit the situation in this less than ideal 6 condition, this can work with the reporting obligation to be 7 defined at a later date. Maybe I have to repeat a deposition. 8 Maybe I'll have to at some later point allow the party to 9 examine the transcript and then ask questions that have not 10 been explored in the transcript. There are other methods that 11 can be used in discovery to create efficiency and economy. 12 MR. BARRY: Don't we avoid all that sort of future 13 problems if we go through the clearance process and allow one 14 lawyer for each defendant to be present in the room? If 15 they're not going to ask questions, it's not going to make any 16 difference. 17 THE COURT: If clearance were tantamount to 18 eliminating all reservations of TSA, the answer would be yes. 19 But you and I heard, and Ms. Goldman and Ms. Normand are not in 20 the way to represent that they will not take steps to prevent 21 answers even in a room where everyone has been cleared. That 22 being the case, I want to grant a condition that is easier for 23 the TSA to go through with this. 24 MR. BARRY: I'm not sure that it is easier for TSA. 25 They said they will instruct the witness not to the answer SSI. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 668twtcc Conference 1 We said we'll abide by it, the plaintiffs abide by it. I don't 2 know where there is a problem. 3 THE COURT: If your witnesses abide by it over an 4 order that says they must answer, you risk an adverse 5 inference. 6 MR. MOLLER: May I offer a suggestion? I'm not sure 7 that it's a good one, but maybe it will cut through some of the 8 problem. There are two aspects of the depositions. Aspect one 9 is questions that are not subject to any SSI objection. And 10 let me be the optimist and assume that's most of the 11 depositions. I may be wrong, but hopefully I'm right. 12 THE COURT: There's no need for clearances for that 13 portion of the deposition. If questions are asked that invite 14 an SSI instruction and the instruction is given, those 15 questions would be returned to and answers given to cleared 16 lawyers. The problem is already narrowed. We have satisfied 17 the larger interests of everybody to most of the questions that 18 are asked, and the narrow area of SSI objected to questions, 19 then we would apply the protocol that you put into your 20 March 31 order, and think it's also in the May 5 order. 21 I'm concerned about maybe doing this two or three 22 times, and frankly having to come back to the Court to solve 23 problems that we might well anticipate. I'm also encouraged 24 that we can started on these depositions sooner rather than 25 later. If we get started, the scope of the problem will be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 668twtcc Conference 1 defined by the first few days of depositions. 2 So how do you expect TSA to respond to a list of how 3 many names, Ms. Goldman? 4 MS. GOLDMAN: I'm sorry, I don't -- 5 THE COURT: How many names are on the list they want 6 to you clear? 7 MS. GOLDMAN: At this point I think the last list we 8 have from the plaintiffs' was about 14 or so. 9 MR. MOLLER: But 14 is eight for the death cases, four 10 for these property cases and two for -- 11 MR. STEIN: We do not need clearance. We are talking 12 about the number of people to attend the deposition. Different 13 story all together. 14 MR. MOLLER: We're now down to fewer. 15 THE COURT: So you need twelve. 16 MR. MOLLER: Twelve. That's two weeks. 17 THE COURT: How many do you need, Mr. Barry? 18 MR. BARRY: One per aviation defense lawyer, at least. 19 I would say a total of 25. 25, approximately. 20 THE COURT: How much time is needed for 37 clearances? 21 MS. GOLDMAN: I don't know the answer to that right 22 now. But I don't think if the depositions -- I think that 23 45-day period would cover whatever number of clearances need to 24 be done, it's just not what we would like. 25 MR. BARRY: There you have it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 668twtcc Conference 1 MS. GOLDMAN: We would not like there to be that many 2 for the reasons stated earlier. 3 I mean the clearances can be done, but it would be 4 nice for it to be the small group your Honor suggested; the 5 eight lawyers on each side or six lawyers on each side, that 6 would be preferable. 7 MR. BARRY: It is fraught with problems. 8 THE COURT: Yes, it is. Cut it down. Cut your lists. 9 MR. BARRY: If they can do clearances for everybody 10 within 45 days the same time they're going to be able to 11 produce their documents. 12 THE COURT: Cut your lists. Cut your lists I'll give 13 you the adjournment. 14 MR. PODESTA: Your Honor, first of all, I think that 15 we need to recognize that this litigation, when it goes 16 forward, whatever arrangements they're making for the first two 17 depositions, we may have several dozen depositions at least 18 that eventually deal with SSI. And just in terms of efficient 19 management, a larger number of lawyers are going to have to be 20 cleared in order to make a case move efficiently when you're 21 dealing with dozens of depositions. 22 Mr. Migliori's point and Mr. Clifford's point about a 23 need for a pool of lawyers to work the case and manage it 24 efficiently is really correct. I can't told you how many 25 times, and I'm sure your Honor experienced yourself in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 668twtcc Conference 1 practice, when you argue -- one of the parties is arguing for 2 an adjournment and saying it's impossible to staff, and the 3 Court's response, and I heard it in this courtroom in this 4 courthouse several times: You're with a big firm, deal with 5 it. You need to have multiple lawyers who are working on the 6 case. 7 If you have got 30 or 40 SSI depositions, some in 8 Oregon, some in Chicago, some in Boston, you have lawyers going 9 on vacation, scheduling conflicts, funerals, illnesses you 10 really ultimately are going to need a larger number of lawyers 11 to be cleared to deal with a complex litigation of this 12 magnitude. And I took some encouragement from your Honor's 13 comments that you might have to deal with broadening these 14 requirements going forward and deal with them as you go along. 15 And I think that's a very important consideration. 16 THE COURT: Mr. Podesta, I confess you're right and 17 you're wrong, because you are right in what goes on in these 18 cases and what is needed in these cases, but you are wrong in 19 the context of what we need to deal with in relationship to an 20 agency over which I have no jurisdiction. So I have to make a 21 condition in the record which will make it as hard as possible 22 for them to be confident of any recourse in an appellate court. 23 And that means the persons having an opportunity to know are 24 restricted until you see how the dust clears. 25 MR. PODESTA: I could move on. First I accept those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 668twtcc Conference 1 portions of your comments about those portions of my statement 2 that were correct, but with respect -- 3 THE COURT: I have said those things myself and I have 4 dealt with the condition when I was a lawyer. 5 MR. PODESTA: I think an important consideration that 6 I think has been partially lost in this discussion is that the 7 SSI problem -- we really made a lot of progress. The SSI -- 8 the TSA's redactions to the ACSSP, the security directives and 9 the information circulars are the same order of magnitude as 10 the redactions to the COG. 11 I think it's very likely that Mr. Moller is correct, 12 that 90 to 95 percent of the questions asked of the depositions 13 will not implicate SSI, and that those few remaining areas 14 where the TSA is asserting SSI are areas where the TSA's 15 position is not going to be: You can answer the question and 16 so take an answer under seal. They're going to give flat out 17 instructions not to answer because I think what they think they 18 have done is cut this down to the core truly sensitive SSI. 19 Only when we see the redactions will we know. 20 But I'm looking at the COG, and the redactions that 21 they make in the COG are quite limited, and many of them are 22 quite irrelevant to the case. For example, they make 23 redactions such as the methods for conducting explosive trace 24 detection. I don't think that's going to be an issue in the 25 case because I don't think there's going to be any contention SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 668twtcc Conference 1 that the explosives got on board the plane. Then there are 2 redactions, such as what is the precise gauge for which a 3 particular metal has to be checked. And these -- some of them 4 may be issues, but they will be, I think, pretty much at the 5 deposition clear-cut instructions not to answer. I think we 6 would be willing to abide by those instructions, subject to our 7 right to take them up either with the Court or with the 8 appellate courts, if that's the appropriate course of review, 9 after the transcript has been -- 10 THE COURT: Your scenario, not improbable, is 11 something that doesn't even need any clearances. 12 MR. PODESTA: That's correct. 13 THE COURT: That's Mr. Moller's opening point. If all 14 this happens within 45 days, we'll all go ahead. But if it 15 doesn't, we'll still go ahead with the way that I think I would 16 like it to go ahead, and that is with the restricted number of 17 lawyers. 18 Ms. Jacobs? 19 MS. JACOBS: I just wanted to clarify that if the 20 Court is saying the property damage interests are now going to 21 have access to the depositions, that we will be submitting a 22 very narrow list of -- 23 THE COURT: Are you and Mr. Stein together? 24 MS. JACOBS: No. Mr. Stein represents the Port 25 Authority and the defendant with respect to the towers. We SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 668twtcc Conference 1 represent the Port Authority with respect to World Trade 2 Center 7. The interests are quite different. 3 THE COURT: Why are they have different? They're 4 different interests, by why have a different interest in 5 relation to the witness? 6 MS. JACOBS: Your Honor, I think that the World Trade 7 Center 7 issues are very different. For one thing, no plane 8 flew into our building. 9 THE COURT: You may not have a cause of action. 10 Because One or Two fell down on top of Seven and Seven burnt 11 down, you want to go after the people who caused One and Two to 12 go down. That's the same interest as Mr. Stein has. 13 MS. JACOBS: Your Honor, I think also there are 14 different interests. In World Trade 7 -- we can talk to 15 Mr. Stein, but I think the World Trade Center 7 defendants 16 should have a representative or a number of representatives at 17 depositions as well, or at least having access to the 18 depositions. 19 THE COURT: In the world of no clearances, I agree 20 with you. In a world where clearances and confidential 21 information is critical, I disagree with you. 22 MS. JACOBS: So the Court's ruling is the World Trade 23 Center will have no -- 24 THE COURT: Not in the context of having a restricted 25 number of people in the deposition room to avoid concern by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 668twtcc Conference 1 TSA. 2 Can I hear from Boeing? 3 MR. FRASER: Your Honor, Brian Fraser for Boeing. 4 Boeing is the only aircraft manufacturer in this case 5 and is situated differently from the defendants, and there is 6 no lawyer in this room who can advance or defend Boeing's 7 interests at any deposition. 8 THE COURT: So you should be present at the 9 deposition. 10 MR. FRASER: Yes. 11 THE COURT: One of you should be present. 12 MR. FRASER: Yes, your Honor. 13 THE COURT: I agree. 14 Can I hear from the security companies? 15 MR. GODFREY: Please the Court, your Honor, Lee 16 Godfrey representing Huntley. 17 We had security at the checkpoint on Flight 175. We 18 have I think frankly a due process obligation as well as a 19 practical obligation. 20 THE COURT: Who had checkpoint security at the other? 21 MR. GODFREY: Argenbright is the second security 22 company. Argenbright has security at Dullas. Globe is the 23 other security company that has security at the other airport. 24 THE COURT: We have three airports involved? 25 MR. GODFREY: Three security companies involved. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 668twtcc Conference 1 THE COURT: Two planes left Newark? One plane left 2 Newark. 3 MR. GODFREY: We have Logan, we have Dullas and we 4 have New York. 5 THE COURT: So three airports, three security 6 companies. 7 MR. WAYLAND: Joe Wayland for Argenbright. We have 8 did checkpoint security at Dullas and New York, Newark, two 9 separate flights, then two flights left from Boston with two 10 different security companies, Globe and Huntley. 11 MR. GODFREY: Your Honor, obviously there is common 12 ground to some extent among the security companies, but at the 13 same time we have very discrete different cases for these three 14 security companies. Some of them have the cap, some don't; 15 some of them have a property damage claim against us, some 16 don't. We have different airlines. We have different 17 airports. We really have to be there. I can't go in and 18 represent Argenbright and my client. 19 THE COURT: The same way that American can't represent 20 United and the United can't represent American. I agree. 21 MR. GODFREY: And we really have to be present. 22 THE COURT: I think one from each needs to be cleared. 23 MR. GODFREY: Just without belaboring the point, we 24 would, without a court order, have one attorney at these 25 depositions from my firm representing our security company, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 668twtcc Conference 1 Huntley. But your Honor, it really is a practical problem if 2 we don't have some capacity in these law firms to deal with the 3 discovery as it's about to happen in the case. We really have 4 to have more than one person cleared. 5 THE COURT: Mr. Godfrey, I know what you're saying. 6 Mr. Podesta said it, Mr. Barry said it, and it's not been so 7 long ago that I was in the same situation that you are. 8 I know what it is in a law firm; the senior partner 9 reports to the client, but there's usually a junior partner in 10 charge of all the depositions, and it's very hard to have the 11 client relationship if the senior partner is not there. And 12 the junior partner is not functioning only on one case, he's 13 got more case responsibility, he's dependant on associates to 14 help, because otherwise the time rates go out of whack. I know 15 all that. 16 MR. GODFREY: And your Honor, I don't think what we're 17 suggesting is in any way going to exacerbate the issues with 18 the TSA, for example, that the Court is concerned about. 19 THE COURT: Mr. Godfrey, let me cut you there, because 20 I anticipate what you are going to say. And I'm very 21 sympathetic, but I'm not going to give you the relief you want, 22 and this is the reason: Any time there is confidentiality, the 23 risk of breach grows exponentially the more people that are 24 privy to information. Ms. Goldman represents that. I know it. 25 So every additional person that comes into that room SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 668twtcc Conference 1 represents a heightened threat of compromise. That has to be 2 balanced. That has to be balanced against the efficient 3 prosecution of the cases and the due process needs of the 4 litigants; the plaintiffs and the defendants. Effecting that 5 balance is exquisitely difficult. And like any balance, a 6 misstep causes a teetering and a problem that can destroy in 7 effect what is going on in these cases. So be very careful 8 about that and balance two considerations that hardly ever get 9 balanced again. 10 I have to assume, in creating this structure, that 11 TSA, mindful of its responsibilities, and knowing that I don't 12 have jurisdiction over it, will want to have a more 13 authoritative voice. We have to achieve that by mandamus. 14 That means that what I do is up for review and the new balance 15 that we created by Court of Appeals. Therefore, I want to 16 create a condition that objectively shows the least potential 17 for compromise and the greatest interest of going forward in 18 the case. 19 That means that deposition room has to be restricted 20 in such a way that all parties in needing to have 21 representation can have representation there but without 22 duplication. That means it's going to cost more to your 23 client, because your client is going to have to have a lawyer 24 that can stay with this until this issue is resolved. 25 Hopefully it will be resolved in a way that will allow me to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 668twtcc Conference 1 retreat from my rigorous rulings and allow a more normal 2 operation to proceed. All of you know how to deal with complex 3 cases and all of you are expert at it and do it with a 4 competent staff. Every one of you relies on another lawyer or 5 two or three or four within your firm. 6 MR. GODFREY: Your Honor, I'm really just suggesting 7 that -- what I am suggesting gives the Court in essence another 8 arrow if your quiver. If we have 45 days to learn what the 9 reiteration of the redactions are going to be, we will have a 10 lot of information about what to ask, to what extent this is 11 even going to be an issue. 12 THE COURT: I am persuaded by that. I haven't been 13 before, but I have become persuaded. 14 MR. GODFREY: It may be that we can send a lawyer to a 15 deposition because of what it looks like who has not been 16 cleared, but why can't we in this 45-day period take advantage 17 of what I understand to be an offer by the agency to clear this 18 20 or 25 people so that we have got two ways to go when it 19 comes time to kick this off and start taking these depositions? 20 We can either send a lawyer that hasn't been cleared, if SSI 21 has largely been resolved, or we would at least have minimum 22 redundancy in these firms to schedule these depositions and get 23 them done. I don't understand how that can hurt anything, take 24 them up on their offer. 25 THE COURT: Mr. Godfrey suggests, maybe I'll amend it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 668twtcc Conference 1 slightly, that the clearances go forward within the 45-day 2 period. You say you can accommodate all those requests. If we 3 have to go forward with those depositions in some area where 4 TSA may not be narrow and defined and it becomes necessary for 5 me to rule, limiting the number of people that are allowed in 6 the deposition room on a consistent basis, we may be able to 7 accommodate both Mr. Barry's and Mr. Podesta's and 8 Mr. Godfrey's argument. 9 MS. GOLDMAN: I don't understand it that way, your 10 Honor, and I think you're putting us in the worst of all 11 possible situations, because you're going to have us clear many 12 people, put the agency to that expense and all the rest of 13 that, have all these people out there who have clearances will 14 say we are entitled to see SSI, and we'll be fighting about 15 that for the next who knows how long. And if we are going to 16 have people in -- only have people in the depositions who have 17 been cleared, and it's going to be a small group, then we 18 should only clear the small group at the depositions and not go 19 through this exercise. 20 THE COURT: I accept. I think I have got to defer in 21 this case. 22 MR. MOLLER: Your Honor, may I? With all due respect, 23 the TSA is a government agency. It has flip-flopped in this 24 case and cost us years for no reason whatsoever, if you look at 25 the documents, no reason whatsoever. The agency is complaining SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 668twtcc Conference 1 at that it will take a period of time to clear a bunch of 2 lawyers who represent victims and the property interests in 3 this case. I mean there's a limit, I think, in all due 4 respect, to the amount of deference we have to give to an 5 agency that caused the stall in this litigation for years. 6 Congress is now about to act and put it end to it. 7 The House of Representatives passed a piece of legislation two 8 days ago which said essentially after three years nothing is 9 SSI, unless the government can come in and show that it 10 really -- that the release of the information would really 11 adversely affect the safety of transportation. And also says 12 that in all judicial proceedings where the judge overseeing the 13 proceeding has adjudicated that a party needs to have access to 14 SSI, he gets it unless there is a compelling reason to 15 demonstrate why the specific individual presents a risk of harm 16 to the nation. That passed 389 to 9 two days ago, it's now 17 working through the Senate. We may have that piece of 18 legislation resolved within the week. 19 THE COURT: If we have a piece of legislation that's 20 resolved, we have a different world. It gets resolved only 21 when the legislation becomes adopted by the Senate and the 22 President signs it. It hasn't happened. I may agree with you 23 and everything that you have to say about TSA, its irresolution 24 and the delays it has caused. It's irrelevant. I'm dealing 25 with this situation now, and this is the way we're going to go. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 668twtcc Conference 1 So we have one from each of the three security companies and 2 one from Boeing, the aircraft company, the airport companies. 3 MR. WAYLAND: Good afternoon, your Honor, Mark Wood. 4 I represent Massport. 5 THE COURT: I haven't seen you for a long time, 6 Mr. Wood. 7 MR. WOOD: I don't know quite how to take that, your 8 Honor. Maybe I listened to you the last time I was before you. 9 THE COURT: You had some motions at the outset. 10 MR. WOOD: We'll have some motions again. 11 Why can't one lawyer represent the three airports? 12 Your Honor, there were different flights involved. I'll just 13 give you an example. At that American deposition, I have to be 14 there, we have to have a lawyer from Massport there because the 15 flight that took down one of the towers took off from Logan 16 Airport, and the plaintiff's contention is somehow -- our 17 contention is of course no how -- somehow we should have been 18 involved in the passenger screening or the loading of that 19 airplane. Now at that same American deposition, American also 20 took off from Dullas Airport, and that American flight 21 unfortunately went into the Pentagon. 22 I have no and have never had no information, have not 23 talked to people at Dullas Airport, have not examined the 24 documents from Dullas Airport because Dullas Airport is not my 25 client. So I am not in a position, assuming that I was going SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 668twtcc Conference 1 to be the, quote, representative of this group of airports, I'm 2 not in any position to know how to protect Dullas Airport, 3 number one. Number two, ethically, I have not be been retained 4 to represent the interests of Dullas Airport, so I don't have 5 any lawyer/client relationship with them in order to do that. 6 You can do the same thing with Newark. Newark had a 7 United flight, the one that took off and wound up in the 8 farmer's field, your Honor, and Newark has its own specific 9 issues with respect to the way that the passengers were 10 screened getting aboard that flight. I don't have any 11 information. Mr. Crowley is the person who has all the 12 information from his client. He's the one who has been 13 retained to represent the interests of Newark there. So 14 there's no way practically, ethically, that one lawyer can 15 represent three airports with respect to four flights that took 16 off in the different -- going through different screening 17 operations with different procedures. 18 And for the same reasons that your Honor was very 19 concerned earlier about the inherent conflict when we were in 20 here a couple of hearings ago of having a lawyer make decisions 21 about whether his client can testify about SSI or not testify 22 about SSI, we have got the same problem in spades of asking a 23 lawyer who is not retained by another party who has been sued 24 for hundreds of millions of dollars to somehow, at a 25 deposition, without the background, figure out how to represent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 668twtcc Conference 1 the interests of that client. 2 THE COURT: Do the airports man the checkpoints? 3 MR. WOOD: No, your Honor. 4 THE COURT: The security companies do. 5 MR. WOOD: The airlines are responsible under Part 108 6 for screening the passengers and the baggage that goes aboard 7 an airplane. Then they can decide how to do that, and in this 8 case they decided to retain security companies to assist them 9 this carrying out those activities. 10 THE COURT: So in effect your clients' liability has 11 to pass through two filters, the airlines and the security 12 claims, before the airports themselves can be touched. 13 MR. WOOD: We made a motion about all this. 14 THE COURT: But there was some questions of fact that 15 I did not resolve in your favor. But the point here is that 16 assuming that the security companies and the airlines 17 vigorously take care of their obligations and resist as 18 strongly as they can, you are protected. It's not clear to me 19 that you could add anything to that mix. Now you need to know, 20 you need to keep aware what goes on. The way I posited, that 21 could be the second phase. 22 MR. WOOD: Your Honor, if that were the case, then our 23 motion should be decided, we should be out of this case. If 24 that is the case. That's not what the plaintiffs are alleging 25 in these complaints. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 668twtcc Conference 1 THE COURT: What is the allegation, remind me, against 2 the airports? 3 MR. WOOD: The allegation is there is one unified 4 security system, that the airports are as responsible, indeed 5 specifically responsible for the screening operation. That was 6 the basis of the argument that we had in here, your Honor. 7 THE COURT: What was the question of fact? 8 MR. WOOD: The question of fact was: Did the airports 9 do something in connection with their activities with the 10 airlines that operate out of their airports, did those airports 11 do something to change the federal regulations and the federal 12 statute and the federal law that says that the airports are not 13 responsible for those activities, that they have no duty? And 14 your Honor said it was premature at the very beginning of this 15 case, we haven't had any discovery, and come back and see me at 16 another day, basically. 17 THE COURT: Well, the exact issue will have to be the 18 subject of some special testimony, presumably not by the 19 witnesses that are coming up in this next session. 20 MR. WOOD: The witnesses coming up, your Honor, are 21 going to be describing the screening procedures at the airport. 22 That's one of the areas that's going to be interrogated. 23 THE COURT: You'll be able to detect that from your 24 record, and if need be, you'll have your crack at the witness 25 after you read the record, but I don't think that you need to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 668twtcc Conference 1 be present at the deposition. In an ordinary situation, as I 2 just said, to Mr. Godfrey, you clearly have the right to be 3 present -- and perhaps I won't leave it the right to be 4 present, but this is a different situation, and my ruling is 5 that unless we have a different situation with SSI, you will 6 not be entitled to be represented, and I don't request TSA to 7 clear you in this situation. 8 It's a hard rule, sir, and I'm aware of it, but it's 9 the ruling I'm making balancing what I need to do. 10 MR. WOOD: So the record is clear, these are in the 11 cases that have been filed against the three airports as 12 defendants, your ruling is we're not entitled to have an 13 attorney present at those depositions. 14 THE COURT: At this moment in time, in connection with 15 these depositions, given the situation of SSI right now. I may 16 change my mind if there's a relaxation, but that's my ruling 17 now. And that would apply to the other airport companies as 18 well. 19 Are there any other categories of defendants that I 20 have not done? 21 MR. CALLAGY: Robert Callagy representing the 22 non-carrier group of airline defendants. 23 THE COURT: The non-carrier airlines are what? 24 MR. CALLAGY: My client is Airtran, Continental, 25 American is in a capacity of a non-carrier, Cogan, and in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 668twtcc Conference 1 addition US Airways. 2 MR. BARRY: US Airways, American West Airlines, 3 Atlantic Coast Airlines, Midwest Express, ATA, Delta, 4 Continental, Airtran. 5 THE COURT: Why are you in the case? 6 MR. CALLAGY: Your Honor, earlier on we asked for a 7 right to make a motion to dismiss and for summary judgment, and 8 the Court said there should be some discovery before you 9 entertain the motion. 10 THE COURT: Why are they in the case, Mr. Moller? 11 MR. ALEXANDER: I can tell you, your Honor. Brian 12 Alexander, Kreindler & Kreindler for the plaintiffs. 13 As you may recall, your Honor, the allegations, again 14 the non-carrier consistent with the airport authorities as 15 well, all nuzzle up the fact that it is a concerted effort by 16 all of these entities for security at the airports. They each 17 have a role. I would love to tell you I know every duty and 18 responsibility that the non-carriers have, every part that they 19 play. But I know there was sufficient information that our 20 investigation yielded, as did other government investigations, 21 to suggest this was one security system run by the airport 22 authorities, by the airlines, by their agents, the security 23 companies, whether you were a carrier or non-carrier. So until 24 that is all parsed out by the discovery that maybe some day 25 we'll get, we can't know. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 668twtcc Conference 1 THE COURT: What witnesses would help you make the 2 case again the United carriers and against the airport 3 companies? 4 MR. ALEXANDER: Again, your Honor, they may have the 5 same duties and obligations as part of this joint enterprise 6 that American and United do. They may -- how they delegated 7 and shared that duty and responsibility is why we brought the 8 non-carriers into the case. They may be in the exact same 9 shoes as the principal carriers. 10 THE COURT: You're probably getting out of the case. 11 MR. CALLAGY: One issue, your Honor, is -- you brought 12 it up before -- this all about reporting, but reporting is not 13 the whole story, because if at a deposition information comes 14 out or a statement is made about a party who was not 15 represented, it seems that party has the right to have its 16 counsel there to cross-examine the witness. Other than that, 17 we bring the witness back again. 18 THE COURT: That may be. The witness may have to come 19 back again. You'll have an opportunity to read the transcript 20 after it's been cleared by TSA, we'll see what redactions there 21 are, and we'll see how to deal with them. I may have to 22 protect you, but it won't be at the first stage. 23 MR. CALLAGY: Maybe the best way is to let the 24 non-carriers out now. 25 THE COURT: It's all right with me. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 668twtcc Conference 1 MR. CLIFFORD: Hello. 2 MR. MOLLER: I have been signing some dismissals and 3 discontinuance of non-carriers on the strength of affidavits 4 that have been supplied. 5 THE COURT: Why don't you two get together. But at 6 this time the same ruling I issued to Mr. Godfrey. 7 MR. CALLAGY: Thank you. 8 THE COURT: This will be subject to revisitation. 9 Any other category of defendant, Mr. Barry? 10 MR. BARRY: Think that covers the waterfront, Judge. 11 THE COURT: So we have four lawyers, two security 12 companies and Boeing. 13 MR. BARRY: Two from American, two from United. 14 THE COURT: Right. So that's eight. So given on the 15 plaintiffs' side we have got the business interests, the Port 16 Authority and the wrongful death and personal injury 17 plaintiffs, all totaling twelve, so the total of 20 people, 18 some of who have already been cleared. 19 I'm not happy with this result, folks, in case you 20 didn't get the idea, but in the circumstances I think it's the 21 best thing I can do. 22 When do we start the depositions? Ms. Goldman, when 23 do you think you can start the depositions, giving them some 24 short period of time to review TSA issues? 25 MR. BARRY: 45 days, your Honor, to the end. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 50 668twtcc Conference 1 Sorry, your Honor, I thought you were asking me. 2 MS. GOLDMAN: Thank you. 3 45 days is the outside date for review. We are going 4 to do the production on a rolling basis, so when the COG was 5 completed, we released it. The next document is the ASC 6 dispute, which is the airport security plans, they will be 7 released next, then we're looking at security directives and 8 ICs and circulars. So they will be released on a rolling 9 basis. 10 THE COURT: August 7. That's more than 45 days. 11 MR. MOLLER: I want to state for the record I would 12 rather start on Monday than wait until August. 13 THE COURT: The record notes that. 14 MR. BARRY: August 7 to start? 15 THE COURT: Yes. You're on vacation. 16 (Off the record) 17 THE COURT: After a long discussion with counsel, and 18 recognizing all the inconveniences of any date in July or 19 August, counsel agree that depositions will begin on 20 September 11, witnesses will be added with the view that every 21 business day between September 11 and September 29, I think 22 there's one day for religious observance in there, one and a 23 half days will be taken up by depositions. 24 Before those depositions I need to meet with you to 25 see if we can enlarge the number of people that could be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 668twtcc Conference 1 present. And Ms. Goldman, when do you think that issue could 2 be revisited? 3 MS. GOLDMAN: Once the first wave documents are done, 4 I think that will give the parties an indication. 5 THE COURT: I'm talking about we're going to revisit 6 whether we need clearances, don't need clearances, enlarge the 7 number of clearances. 8 MS. GOLDMAN: And I agree with your Honor, I think 9 that will be something that we can address once the first wave 10 is done. I think Mr. Moller will have a view of that because I 11 think those are the key documents that go to the three issues 12 on the list for these depositions. I think once we finish the 13 first wave, TSA is going to undertake a rereview of all the 14 documents, and we will start immediately after, but I think 15 they have to wait to revisit those issues. 16 THE COURT: What do you think? 17 MS. GOLDMAN: Mid July. 18 THE COURT: How about 3:00, Wednesday, July 13. 19 MR. CLIFFORD: Will that strike the July 7, 2:00? 20 THE COURT: Yes. So July 7 is cancelled. July 19, 21 3:00 is Wednesday. 22 MR. MOLLER: Could we appear by phone, if necessary? 23 THE COURT: No. 24 MR. BARRY: Your Honor, personal issue again. I'm 25 coming back the next day. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 668twtcc Conference 1 THE COURT: So we can do -- you'll be back. 2 MR. BARRY: I'll be back the 20th. I'm not coming 3 back until the 20th. 4 THE COURT: What about July 21, Friday? 5 MR. BARRY: Friday July 21. 6 THE COURT: Yeah, at 1:00. 7 MR. CLIFFORD: Your Honor, I know you have the 8 jurisdictional limitations you have as you described with the 9 TSA, but if maybe they could hear from your Honor that -- it 10 will certainly facilitate the quality of the depositions 11 beginning on September 13 if they understood that all parties 12 in the court would hope that the TSA would have its rereview 13 completed with some dispatch before those depositions take 14 place. 15 THE COURT: I think we'll revisit that in July -- 16 MR. CLIFFORD: Okay. 17 THE COURT: -- because we'll have progress by then. 18 If we don't have progress in that time, then we can be alarmed. 19 So bring it up. 20 MR. CLIFFORD: Yes, sir. 21 MR. BARRY: I leave it to Mr. Moller and myself to 22 work out the schedule who is going to be deposed during that 23 three-week period. 24 THE COURT: Yes, please do that. I really would like 25 to get a submission from both of you, but you create a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 668twtcc Conference 1 schedule. 2 MR. BARRY: Because we have some depositions we would 3 like to take as well. 4 THE COURT: Yes. I think that should be accommodated. 5 I really would like to have substantial progress made in those 6 weeks. 7 MR. MOLLER: If we have depositions in September, 8 could we have 30(b)(6) depositions instead of simply the 9 Rule 30 depositions? 10 THE COURT: Look, the area is unclear. You started 11 with 30(b)(6), I pushed you off it because of the SSI 12 information problem. I would like to err on the side of 13 caution until the road map is clarified, and I think it's 14 easier to do that with witnesses who are known. 15 Now I guess we'll all have to write some kind of 16 treatise on this area in terms of how to administer a case that 17 doesn't lend itself to administration. 18 Anything else, folks? Thank you. 19 o0o 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300