1 73MZ911C 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 In Re: 9/11 Property Damage 3 and Business Loss Litigation 4 4 5 21 MC 97, 101 (AKH) 5 6 6 ------------------------------x 7 7 March 22, 2007 8 3:30 p.m. 8 9 Before: 9 10 HON. ALVIN K. HELLERSTEIN, 10 11 District Judge 11 12 APPEARANCES 12 13 KEITH S. FRANZ 13 14 ROBERT A. CLIFFORD 14 TIMOTHY J. TOMASIK 15 16 LEE GODFREY 17 MARC S. MOLLER 17 18 BETH GOLDMAN 18 SARAH NORMAND 19 JEANETTE VARGAS 20 ROGER PODESTA 21 DOUGLAS J. PEPE 22 DONALD MIGLIORI 23 APPEARANCES: (continued) 24 JEFFREY ELLIS 25 DESMOND BARRY SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 73MZ911C 1 RICHARD A. WILLIAMSON 1 CATHI HESSION 2 JASON COHEN 3 FRANKLIN M. SACHS 4 RICHARD CAMPBELL 5 JOSEPH WAYLAND 6 JAMES P. CONNORS 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 73MZ911C 1 THE COURT: Be seated everybody. Shall we begin? 2 I've given out an agenda and I'll go down the agenda items, and 3 as always, if anyone has any items to add we'll allow that as 4 well. 5 First I want to cover the discovery dispute between 6 United States Airways and plaintiffs and cross-claim 7 plaintiffs. 8 Some question has arisen with regard to the Rule 2E 9 procedure that I customarily use for resolving discovery 10 disputes. Let me say a word about that. 11 I created this Rule 2E procedure, and several Judges 12 in this Court have now followed that, because of my frustration 13 in practice with obtaining proper prompt resolution of 14 discovery disputes. 15 As an attorney, it was always the question, should you 16 write another letter to the Judge. You write, your colleague 17 writes, then you write again and your colleague writes again. 18 The longer the judge took to decide the case, the more letters 19 you had to write. 20 And, secondly, it was my observation that when judges 21 were slow to resolve discovery disputes, there were more 22 discovery disputes. And if Judges were quick to resolve the 23 discovery disputes, there were fewer disputes. And third is 24 that people got along together when they knew the rules. If 25 there was uncertainty as to what the rule would be, the natural SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 73MZ911C 1 zealousness of lawyers would push the envelopes both ways and 2 there would be disputes. So Rule 2E was developed to help on 3 all those three issues. 4 First, the requirement of a joint letter ended this 5 problem of writing the last letter. It was only one letter, 6 and both sides had to contribute to it. 7 And second, the creation of a joint letter put teeth 8 to the meet and confer rule, because just getting together 9 ended the dispute. People resolved it, and to my pleasant 10 surprise, I have very few discovery disputes, very few. 11 Third, I endeavor to give a 24 hour response which 12 gave a rule, people conformed, and because disputes were 13 resolved promptly, there also were fewer discovery disputes. 14 And in seven and a half years as a judge, the rules 15 work very well. 16 Now when this case came -- not too many rules can be 17 applied in this case. We're constantly working on a customized 18 application of federal rule. It's not a multi district case, 19 it's not an individual case. It's something of it's own. 20 Whenever I think of how difficult the problems are, I 21 think of how difficult the problems are to sentence even one 22 person as those of you who were here can detect in having to 23 sentence one Luis Cosme. But we try to develop the rules. 24 And in respect of the TSA procedure, since TSA had 25 different problems from normal litigation problems, and because SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 73MZ911C 1 they followed the agency approach of final determinations that 2 were appealable not to me but to a Court of Appeals, I 3 commented at some point that I didn't see the use of a 2E 4 procedure, since I was not the judge that could rule on 5 discovery disputes. 6 But that doesn't mean that any time that TSA is 7 involved there is no room for a 2E procedure. And here we have 8 a procedure that is involving a dispute between a party seeking 9 discovery and a party reluctant to give up discovery; a normal 10 discovery dispute. 11 It lends itself to 2E procedure. Now, my 2E procedure 12 is my individual rule. It's not an amendment to the Federal 13 Rules of Civil Procedure, and it never was intended as a way to 14 supplant the Federal Rules of Civil Procedure. So any party 15 wishing to compel discovery or seeking a protective order 16 against discovery can follow the Federal Rules of Civil 17 Procedure. 2E is a quick alternative. I can make a record to 18 protect you and to get a prompt ruling from me, but it's not a 19 required alternative to comply with the Federal Rules of Civil 20 Procedure. 21 In this case U.S. Airways wanted to bring a motion for 22 protective order, but they never got around to filing one. 23 Instead, as it seems to me, they neither involved themselves 24 with the 2E procedure of a joint meeting and the creation of a 25 joint letter for rulings, and they did not make the motion. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 73MZ911C 1 They just don't want to give discovery. That's my take from 2 reading the letters, the letter that came to me -- actually, 3 the letters that came to me. 4 I'm prepared to rule at this time. Who represents 5 U.S. Airways? 6 MR. CAMPBELL: I do, your Honor, Richard Campbell. 7 THE COURT: Mr. Campbell, do you want to tell me what 8 the problems are to make production? 9 MR. CAMPBELL: The problem with the 2E letter, your 10 Honor, is that it came out of the blue and immediately after 11 delivery back to my brothers on the -- representing the various 12 plaintiffs of position statements, lengthy written position 13 statements, many of which still had yet to be resolved. 14 So if one were to look at those position statements, 15 one would find that there were 30 or 40 individual requests out 16 of about 180 to 200 in total, which had never been resolved and 17 were still the subject matter of additional meet and confers. 18 So this 2E letter came to us with no prior call or warning or 19 suggestion that it was on the way. It came, basically, the day 20 after the latest revision of these position statements were 21 made, and sent back to the lawyers who were responsible from 22 the plaintiffs' side with respect to them. 23 If you then look at the 2E letter that was delivered 24 or sent to us, electronically, we were given a mandate to 25 respond in a few days, not -- not the same amount of time that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 73MZ911C 1 we would have with respect to the Rule 37 of the Federal Rules 2 of Procedure. We were told -- we were given a mandate, respond 3 to this proposed 2E letter, which in the first paragraph made 4 it look like it was consensual, and that too, that time limit 5 was unilateral. The decision to proceed with 2E was 6 unilateral, and the amount of time that we would have to 7 respond was unilaterally selected. 8 THE COURT: How much time did you need? 9 MR. CAMPBELL: Well, under the rules, if there were a 10 Rule 37 motion, we'd have ten days or so to respond. We didn't 11 have that. And your Honor had, from the bench, made references 12 to Rule 2E as not applying in the case, so we needed guidance. 13 With respect to the particulars of these requests, out 14 of the 180 or so requests for production of documents that were 15 in the two sets of requests, in this 2E letter there were 16 cherry picked items. So roughly 40 to 45 requests for 17 production of documents were selected out from all the others, 18 and they were included within that piece of correspondence that 19 we received. But we were not told that all of the rest of the 20 requests, the 140 requests, were thereby waived. We weren't 21 told that. We were told that the selected 40 or so, 40 to 45 22 requests were the first of what would be serial discovery 23 motions. So if you look at the communication we received, your 24 Honor, it suggested that this procedure would not prevent the 25 plaintiffs from proceeding with other discovery motions with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 73MZ911C 1 respect to the request that were not included in the letter at 2 some later time. And it didn't seem to me that serial 3 discovery motions are reasonable or appropriate for U.S. 4 Airways or for the Court. 5 THE COURT: Why not? 6 MR. CAMPBELL: Well, I would think, your Honor, that 7 it is in the best -- 8 THE COURT: Sufficient, sufficient to the day the evil 9 thereof. They've got 180 demands, they've met with you, 10 they've heard your points and they feel they want a ruling. 11 MR. CAMPBELL: Well, your Honor, the ordinary and 12 usual practice would be to present to the Court a motion that 13 deals with the totality of the discovery dispute and that 14 certainly -- 15 THE COURT: Not in my court. 16 MR. CAMPBELL: -- was the way we were proceeding. 17 THE COURT: Not in my court. No one is required to 18 save up discovery disputes to the end of the case. Indeed, you 19 captain go on with discovery if you don't know what you can get 20 and what you can't get. So there's a very good reason to seek 21 rulings an early point in time. And if you need more time to 22 address them, one way of dealing with this is, I need more 23 time, I need five days, I need ten days. 24 MR. CAMPBELL: Well, the way, the way I -- 25 THE COURT: But to give them the back of your hand is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 73MZ911C 1 no way to deal with it. 2 MR. CAMPBELL: I don't believe I gave them the back of 3 my hand, your Honor. 4 THE COURT: You didn't even bother to respond. 5 MR. CAMPBELL: I responded by communicating with this 6 Court. 7 THE COURT: You said, yeah, you communicated to the 8 Court by -- on March 19 and I endorsed it by saying in the 9 absence of an agreement or consent to use 2E procedure, a 10 motion under the Federal Rules of Civil Procedure should be 11 made. 12 MR. CAMPBELL: Yes, your Honor. 13 THE COURT: You didn't make one. 14 MR. CAMPBELL: But our intent is to make that motion 15 and to make it timely. 16 THE COURT: Well, but if I'm given a request to rule, 17 and I'm prepared to rule, I'll rule. 18 MR. CAMPBELL: Well, if you do that, then we'll be 19 foreclosed from responding. 20 THE COURT: Then respond. 21 MR. CAMPBELL: Well, if you want me to deal with the 22 discovery -- the primary aspects of the discovery dispute at 23 hand in that 2E letter, it has to do -- 24 THE COURT: Mr. Campbell's, here's the letter. 25 MR. GODFREY: Yes, sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 73MZ911C 1 THE COURT: It's got documents, it's got numbers, it's 2 got three overriding principles. Deal with it constructively 3 and don't delay. That's your job as a lawyer. 4 MR. CAMPBELL: Yes, your Honor. 5 THE COURT: That's your job as a lawyer in my court. 6 We don't mess around with discovery questions. We get them 7 resolved, and we get them resolved promptly, and no one gets a 8 benefit out of raising issues and delaying. Do your job. I'll 9 hold this. I want your letter. When is it coming? 10 MR. CAMPBELL: I'll have it to your Honor tomorrow. 11 THE COURT: Okay, thank you. 12 All right, Mr. Barry, you've been engaged in an 13 interesting procedure for the last couple of months and you've 14 accomplished a great deal, and there are limitations. Tell us 15 about what what's happening. 16 MR. BARRY: Well, your Honor, in your agenda that you 17 put out, the numbers certainly are accurate. We have settled 18 45 cases, and we've settled eight since December 11th when we 19 last met with your Honor. 20 We are continuing our discussions with the Motley Rice 21 firm, with Mr. Podesta and I have had singular discussions with 22 Mr. Rice and his cases, and at the moment dealing with eight 23 individual Flight 11 cases that we think have the possibility 24 of settling together. 25 I think Ms. Birnbaum has scheduled, finally, with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 73MZ911C 1 defendants and the Azrael Gann plaintiffs, mediations for April 2 23rd in all of those cases, with their clients present. That's 3 without the Court. The Azrael Gann plaintiffs have not yet 4 appeared before your Honor. 5 THE COURT: I told Ms. Birnbaum that I was unwilling 6 to meet with them until they had made efforts to narrow the 7 gaps, at least to identify their offers and demands, and that 8 had not been done. 9 MR. BARRY: I understand that. The first step in that 10 process is our meeting with counsel and his clients with 11 Ms. Birnbaum, and we're scheduled for the 23rd of April to do 12 that. Depending on what happens there, a report will be made 13 to your Honor as to whether or not we would ask you to 14 participate in mediations if we have been able to narrow the 15 gap in those cases. 16 We're continuing to discuss with Mr. Moller -- I had a 17 conversation with him this week -- about the remaining cases 18 and we're hopeful we're settling some of those as well. 19 I said in my letter to you this week, your Honor, that 20 I think we should continue the process for another 90 days and 21 then cut it off. I think at the end of that period, we will 22 know what cases are not capable of being settled and in what 23 place. I know you had talked about concluding mediations at 24 the end of this month, but I think I think I see enough 25 progress to ask you to extend that period for another 90 days. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 73MZ911C 1 THE COURT: I tell you, Mr. Barry, I tell Mr. Migliori 2 the same point, having become involved to some degree, and 3 having had reports from Ms. Birnbaum, that I don't get the 4 sense that mediation of the cases where Motley Rice and you 5 have been discussing settlement are going to result in 6 settlements. I mean -- 7 MR. BARRY: Well -- 8 THE COURT: And without commenting on rightness or 9 wrongness of the situation -- there is no right or wrong. I've 10 just got a sense that you're apart and that there's not going 11 to be movement to repair the gap. 12 MR. BARRY: I don't think that's the case, your Honor, 13 particularly with respect to the Flight 11 cases that we are in 14 the process of discussing with Mr. Rice himself. And he told 15 Mr. Podesta and I that he was optimistic that we could settle 16 those cases. 17 THE COURT: Yeah, but I heard that a month and a half 18 ago. 19 MR. BARRY: Well, you know, we haven't had much 20 conversation, but there's been a lot of promises of getting 21 together again. 22 THE COURT: I get a feeling that if there is prospect, 23 there will be meetings, and one reason you haven't met very 24 much or talked very much is that there's not a willingness to 25 move. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 73MZ911C 1 MR. BARRY: Well, I don't think that's exactly the 2 case, your Honor. I mean there was some intervening skiing 3 trips of Mr. Rice and others that got involved with us meeting, 4 and I think Mr. Podesta had his last conversation with them 5 about setting up something else. 6 THE COURT: Mr. Podesta. 7 MR. PODESTA: Yes. Speaking with respect to the 8 Flight 11 cases, I believe that the gap with respect to these 9 eight cases between the aviation defendants and Motley Rice is 10 relatively small. You know, because these are confidential 11 settlement discussions I don't want to give the -- 12 THE COURT: I don't want to go into numbers. I don't 13 want you to -- 14 MR. PODESTA: We're fairly close, your Honor. 15 THE COURT: I just get the feeling that a lot of time 16 has gone by, and I don't get a sense that there is movement. 17 Mr. Migliori. 18 MR. MIGLIORI: Thank you, your Honor. Good afternoon. 19 I do think with respect to very specific people, and there has 20 been discussion about 11 specifically, there is a benefit for 21 continued discussion, whether that's in the formal mediation 22 process or otherwise. I don't think that giving 90 days is 23 going to help because if we put a three-month window on this, 24 from our experience, it means we won't be meeting until two and 25 a half months from now. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 73MZ911C 1 THE COURT: I agree. I agree, Mr. Migliori. How much 2 time? 3 MR. MIGLIORI: Your Honor, I think we can do this 4 within the next two or three weeks. There is no more 5 information that we need to provide to defendants. It's a 6 matter of meeting and if we have that kind of pressure to meet, 7 I think we can do it in the next two to three weeks. 8 MR. BARRY: Your Honor, we're willing to meet at any 9 time. It's been -- it really has been a subject of not being 10 able to schedule things as opposed to refusal to continue to 11 discuss the case. So I think that's a short timeframe. If you 12 want to apply that timeframe to just the Motley Rice cases, 13 that's fine. But we have Azrael Gann on April 23 and that's 14 beyond two or three weeks from now. 15 MR. GODFREY: Your Honor, if I may, Lee Godfrey for 16 Huntley and with regard to Flight 175. We certainly have been 17 interested in settling. We've actually made a proposition to 18 settle 100 percent of the wrongful death claims that are left 19 in our case. Two or three weeks to deal with some sort of 20 large or perhaps global settlement on Flight 11 with American, 21 plus trying to pursue what we put into play with respect to our 22 flight simply isn't enough time, given the benefit that we can 23 get if we have a little more time. 24 THE COURT: If I assigned a cut off date of May 10th 25 for mediations in which I'm expected to do something, would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 73MZ911C 1 that be enough time? 2 MR. GODFREY: Yes, your Honor. 3 MR. BARRY: That's acceptable to the defense, your 4 Honor. 5 MR. MIGLIORI: I can represent, your Honor, that as 6 long as it doesn't cut down the other momentum, the other 7 parallel track -- 8 THE COURT: I don't intend that it should. 9 MR. MIGLIORI: -- then we can do that. 10 THE COURT: I don't intend that it should. But 11 Mr. Barry is going to tell me that the same actors that are 12 necessary for the mediation are necessary for the important 13 depositions. 14 MR. MIGLIORI: Well, and that's -- speaking to 15 Mr. Godfrey's point, the discussions on United as a whole 16 package from United and Huntley, have been with me, not with 17 Mr. Rice. So we certainly can parallel track those efforts. 18 If putting this date into May means that it's going to slow 19 down what we've proposed in our other plans, I would ask the 20 Court that it be shortened. 21 THE COURT: Well, I'm going to do May 10th, but with 22 the understanding that it's not going to be a reason not to 23 engage in other activities. 24 MR. BARRY: That's fine, your Honor. We'll certainly 25 participate in both. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 73MZ911C 1 MR. FRANZ: Your Honor, just -- 2 THE COURT: Sir? 3 MR. FRANZ: Keith Franz, your Honor. Are we to 4 understand that our cases, which are now going to begin the 5 mediation process, you're expecting that if we are seeking your 6 help, that that would need to be done before May 10th as well? 7 THE COURT: Yes, sir, Mr. Franz. 8 MR. FRANZ: Thank you. 9 THE COURT: And I don't know why it's taken so long. 10 MR. FRANZ: We have our understanding of it, your 11 Honor, and it's -- 12 THE COURT: Yeah, but I tell you, I don't understand 13 why it's taking so long. 14 MR. FRANZ: For us to mediate, your Honor? 15 THE COURT: Yes, to make some advance. I mean, I was 16 appalled to learn that no numbers have been exchanged. 17 MR. FRANZ: Well, we believe the defendants have been 18 rather dismissive of our client's claims. 19 THE COURT: When offers are not made, a defendant 20 tends to be dismissive. If a party wishes to engage in strong 21 settlement discussions, my experience is that there will be 22 responses. My experience is there will be responses. 23 MR. FRANZ: Your Honor -- 24 THE COURT: Mr. Franz, get your numbers in order, move 25 it. You don't need any help from anyone else to come up with a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 73MZ911C 1 number that's realistic, and put it to Mr. Barry or whoever 2 else on defendants side. Let's move it. It's in your 3 interest. 4 MR. FRANZ: We have been available, your Honor. We've 5 made that clear to the mediator, and our clients have committed 6 themselves to the mediation process. 7 THE COURT: It's more than just being available, 8 Mr. Franz. It's dealing with numbers. 9 Okay, next point. 10 MS. VARGAS: Good afternoon, your Honor. Jeanette 11 Vargas on behalf of TSA. 12 THE COURT: Yes, Ms. Vargas. 13 MS. VARGAS: Well, with respect to the SSI review to 14 date, TSA is pleased to announce that we have completed a 15 review of 68,000 pages since last October, of which 66,000 16 approximately have been released in full. That includes third 17 waive documents produced from American and United, as well as 18 thousands of pages of third-party subpoenas. 19 Since that date, we've also attended more than 50 20 depositions. Of those depositions have been attended by DOJ 21 staff, TSA, SSI reviewers, as well as TSA counsel. We have 22 reviewed approximately 11,000 pages of deposition testimony as 23 well in that time period. 24 I think the most important development since that 25 date, however, is the recent entry of protective order that was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 73MZ911C 1 entered by this Court yesterday. And that leads us into a new 2 phase of this litigation which commenced with the opening of 3 the reading room this week and the beginning of the processing 4 of attorney clearances, which started this afternoon. 5 As your Honor is aware, under the Department of 6 Homeland Security Appropriations Act of 2007, there will now be 7 procedures in place by which cleared counsel will have access 8 to SSI that is relevant and necessary to the litigation under 9 controlled terms that will be governed by the protective order. 10 We have today cleared or fingerprinted and collected 11 clearance materials for approximately 70 to 80 counsel in this 12 case. We expect that those clearance materials will be 13 processed within the next -- within the upcoming weeks, and 14 that the reading room already has documents that we have put 15 into the reading room. More documents will be placed in the 16 reading room in the upcoming weeks. By the time those 17 clearances are processed, attorneys can go in and begin to be 18 able to review the unredacted documents that have been placed 19 in the reading room. 20 As your Honor can see from the terms of the protective 21 order, there will be a limited subset of counsel who will be 22 cleared for access to the reading room. Those counsel will 23 have access to the entirety of the reading room documents and 24 will be able to select from those documents which are going to 25 be most relevant for them for use in this litigation. And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 73MZ911C 1 we've also negotiated a procedure with the parties so that they 2 can then take out what they've identified as those crucial 3 documents for controlled access outside the reading room for 4 use in depositions, for example, and for other legitimate 5 litigation purposes. 6 THE COURT: Going back to the previous discussion with 7 U.S. Airways. Once they make production of whatever it is that 8 they are obligated to produce, then it goes to you. 9 MS. VARGAS: Yes, your Honor. 10 THE COURT: And how long does it generally take to 11 review a collection of documents? 12 MS. VARGAS: Your Honor, I would need a page estimate 13 certainly before I could give you that number. 14 THE COURT: Say it's of some order of magnitude like 15 American's and United's. 16 MS. VARGAS: Well, that was -- over the course of the 17 litigation we've had first, second, third waives, I think in 18 the hundreds of thousands of pages. So I would hesitate just 19 to give an off-the-cuff number. 20 THE COURT: That's what I'm looking for, actually. 21 MS. VARGAS: It will be a much faster process because 22 now we're in the realm of the reading room. So what TSA is 23 going to be engaged in is what we call a preliminary review or 24 really a rough cut. Because what they're going to be looking 25 at in the first instance is what has SSI, what doesn't have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 73MZ911C 1 SSI. What doesn't have SSI is not going to be subject to the 2 reading room protective order. What does have SSI is only 3 going -- is not going to be subject to the same line-by-line 4 review we've had in the past. It's just now going to be really 5 examined predominantly to see if there is particularly 6 sensitive information. Under the statute, if information has a 7 certain degree of sensitivity such that disclosure will present 8 a high risk of threat to the nation, then that information gets 9 redacted; otherwise, the documents are just going to be placed 10 in the reading room for review. So this is going to -- it's 11 going to significantly shorten the review process that we've 12 had in the past. 13 THE COURT: One of the reasons I'm asking you for an 14 off-the-cuff estimate is because I want to come back to 15 Mr. Campbell and point out how important it is to him to get 16 finished with this process so that you can begin to do your 17 job. 18 MS. VARGAS: Your Honor, TSA certainly agrees with 19 that. We -- I cannot give you an estimate without getting 20 approximate page number. I can promise you that will be 21 promptly looked at and placed in the reading room, and that the 22 process will not be as long as it took in the past. It'll be 23 significantly shorter to get in the reading room. 24 After that, however, counsel will then be able to go 25 into the reading room, look at the unredacted documents and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 73MZ911C 1 tell us what they want to come out, and then TSA can 2 concentrate its review efforts on those particular documents. 3 So they won't have to do the line-by-line, very pain staking 4 review that we've had to do in the past that's caused greater 5 delays. 6 THE COURT: Do you know how many pages were involved 7 in the American Airline production, approximately? 8 MS. VARGAS: Your Honor, we're still getting those 9 pages. 10 THE COURT: Mr. Moller, do you have any idea of how to 11 size this up or -- 12 MR. TOMASIK: Judge, I think recently American Air 13 Lines -- Tim Tomasik for the record -- produced about 40,000 14 documents this past week. 15 MS. VARGAS: Yes, your Honor. Well, it's certainly -- 16 THE COURT: So assuming the same number from U.S. Air. 17 MS. VARGAS: Your Honor, we -- our records show that 18 we got 6,000 records from American the last weeks. 19 UNIDENTIFIED SPEAKER: 40,000 pages. 20 MS. VARGAS: I don't think they went to TSA. 21 Plaintiffs may have received 40,000. 22 THE COURT: So whatever number, say 10,000, but will 23 10,000 pages, do you have any idea? 24 MS. VARGAS: Your Honor, our hope is within a month, I 25 would say, that those documents be reviewed and ready for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 73MZ911C 1 production in the reading room. 2 THE COURT: And in the context of trying to move 3 matters ahead and have a production that can be evaluated by 4 attorneys in relationship to companion cases and the like, 5 there is a priority of getting disputes resolved quickly and 6 production made quickly so TSA can do its review and the cases 7 could be moved. Thank you, Ms. Vargas. 8 MS. VARGAS: Thank you, your Honor. 9 THE COURT: Well, just one more question. Do you 10 anticipate any kinds of problems that will require the Court's 11 attention or the Court of Appeals attention? 12 MS. VARGAS: Your Honor, with respect to this Court's 13 attention, the protective order does contain mechanisms for 14 bringing disputes to this Court's attention with respect to 15 whether certain documents are appropriate for inclusion in the 16 reading room or also whether documents are appropriate to be 17 taken out of the reading room. 18 At the moment, we are hoping that we can work through 19 that process consensually with the parties. We've worked with 20 them very well in terms of negotiating the terms of the 21 protective order. We hope that spirit of cooperation will 22 continue and we won't need to involve the Court in future 23 disputes, but there is a procedure in place should the need 24 arise. 25 THE COURT: All right. Thank you, Ms. Vargas. And I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 73MZ911C 1 think the very few times I've had to be involved with issues 2 arising from TSA activities -- there have been none recently -- 3 suggest to me that the cooperation level is very high. Thank 4 you very much for that. 5 MS. VARGAS: We're very optimistic about the process 6 going forward, your Honor. Thank you. 7 THE COURT: All right. 8 We're at Roman numeral four, status of discovery 9 proceedings, and who wishes to report on that? 10 MR. TOMASIK: Several of us, Judge, with your 11 permission. 12 Judge, Tim Tomasik again on behalf of the coordinated 13 plaintiffs. 14 In terms of the carriers, American Airlines and United 15 Airlines, we finalized a joint statement. There is a third and 16 fourth waive of documents that -- presently with the TSA. 17 We've received some of those documents. 18 We expect, your Honor, going forward, to issue some 19 limited and focused document requests based on what we 20 received, but it should be very minimal. Again, we need to 21 work things out with U.S. Airways who, today, as of last week I 22 think produced 77 documents and another 4,000 this week. 23 Hopefully we can get up to speed there, your Honor. And I 24 think there are some other issues as to electronic discovery. 25 MR. CLIFFORD: Your Honor, Robert Clifford. In all of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 73MZ911C 1 the production that we've been receiving from the defendants 2 that's been cleared through the TSA, we've noticed a remarkable 3 absence in electronically preserved or exchanged 4 communications, whether it's communications involving key 5 security issues or threat assessments or the exchange of 6 information with the ground security people. We've not 7 received, for example, any of the training materials. We know 8 that those have been kept in electronic form. There has been 9 some discussion between us and Globe, for example, where we 10 felt that we might ultimately bring the matter to the Court's 11 attention because they have told us that we cannot get past the 12 electronic issue without talking to the TSA, and we've tried to 13 get the TSA together with them in a conversation. 14 Significantly, also there's an issue looming with 15 United as it relates to this. We've learned, for example, that 16 the United maintained a program called pilot for the day, and 17 that Zachariah Moussoui, in fact, was exchanging electronic 18 communications with the staff in Denver who were running this 19 program. They literally would train people, outsiders to fly 20 in the simulators these major aircraft. None of that material 21 came to us through United's production. We've, in our tracking 22 of e-mails, we've learned that the program was halted in the 23 middle of the day on September 11th. So I'm going -- we met, 24 my PEC met yesterday and this morning. Subsequent to today's 25 meeting, depending upon your Honor's direction on other -- the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 73MZ911C 1 rest of the agenda, I was going to propose a meet and confer 2 between us and them as it relates to this entire electronic 3 discovery issue, so as to try to facilitate the prompt 4 resolution of any disputes we have, and if we have disputes 5 we'll bring them to you. If not, we'll hopefully work our way 6 through them and not have to bother the Court. 7 MR. ELLIS: Your Honor, in so far as the pilot for a 8 day program -- Jeffrey Ellis for United -- Mr. Clifford told us 9 about or Mr. Pepe told us about it last week. We're conducting 10 a search for records regarding that program. 11 I reviewed them the Moussoui trial. It doesn't appear 12 that Mr. Moussoui ever engaged in that program. There was an 13 e-mail, though, and whatever there is we'll produce that 14 information. Trying to get it right now. 15 MR. CLIFFORD: And my response to that is -- forgive 16 me, unless you -- 17 MR. ELLIS: I was just going to say, Judge, what I 18 I've asked for them specifically to Mr. Pepe, I think maybe to 19 Mr. Tomasik as well, if they have information about this, 20 additional information so that we can focus our search, that 21 they may know about from their investigation, the more 22 information we have, we've always shown a willingness to go get 23 that information as quickly as possible. So if Mr. Clifford or 24 any of his colleagues have additional information that can help 25 us target our search, we're certainly happy to do that and we'd SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 73MZ911C 1 request that we get that and hopefully not to have to go before 2 you to make a motion to do it. 3 MR. CLIFFORD: I don't want to pick a fight with him 4 here, but let me just say that the record, from our 5 perspective, reflects the fact that United had a program they 6 stopped on the day of September 11th. 7 THE COURT: I'll allow -- stop you, both. That's what 8 meet and confers are for. 9 MR. ELLIS: Thank you, Judge. 10 THE COURT: Anyone else on discovery? 11 MS. HESSION: Judge, Cathi Hession on just on document 12 discovery. One other area of document discovery, maybe this 13 will be addressed by way of a 2E letter, but I wanted to make 14 the Court aware of the insurance discovery. As you know 15 because of the limited fund aspect of this litigation, it's 16 crucial for us to know what the pot of available insurance is 17 to meet the damage claims which even, according to the damage 18 disclosure forms that have been produced today and are still in 19 the process of being updated, are both very substantial 20 numbers. 21 Back in the middle of January, we served, on behalf of 22 the coordinator plaintiffs, interrogatories and requests for 23 production of documents regarding insurance and some 24 supplemental interrogatories. And what we have gotten back 25 from a number of the aviation defendants is the continued SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 73MZ911C 1 insistence that your Honor's CMO back from 2003, which required 2 people to make representations disclosing or copies reflecting 3 the terms of all applicable insuring agreements and the amounts 4 of their insurance, as well as the initial disclosure 5 requirements under the federal rules is the full extent of 6 their obligations. We take the position that we are entitled, 7 especially in the circumstances of this case, to serve 8 discovery requests and certainly -- 9 THE COURT: Why did I make that ruling, do you 10 remember? 11 MS. HESSION: I think that was in 2003. I think it 12 was just to get the ball moving so we can get a sense, 13 initially, of what are the terms and what's out there. But 14 because of the limited funds aspects, we certainly are going to 15 want, at a minimum, your Honor, the complete policies and for a 16 number of people, so far all we have is a one page certificate 17 of insurance. So we just wanted to bring this to your 18 attention. We can do it by way of 2E letter and that should be 19 coming shortly, but that is document discovery that is out 20 there and is not complete. 21 THE COURT: Let me hear Mr. Barry. 22 MR. BARRY: We're happy to engage in a 2E letter. 23 There are specific -- 24 THE COURT: No, I'd rather not. 25 MR. BARRY: Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 73MZ911C 1 THE COURT: Why can't we solve it now? 2 MR. BARRY: Well, your Honor, I think we should have 3 an opportunity to see exactly what they want in writing. You 4 should have an opportunity to see exactly what they want in 5 writing, and we should be able to respond. 6 THE COURT: I feel this, they should be entitled to 7 the insuring agreements. 8 MR. BARRY: The entire policies? 9 THE COURT: Well, the insuring agreements are usually 10 less than the -- 11 MR. BARRY: You've ruled, you've so ruled on that and 12 that's what we have produced. 13 THE COURT: Let me suggest this. Having had 14 experience with it, when someone's asked to produce an entire 15 insurance policy, it's often very difficult, but there's 16 usually one part of the policy or two that has the amounts of 17 insurance. It's the face page -- 18 MR. BARRY: Right. 19 THE COURT: -- and the part that's called the insuring 20 agreement. 21 MR. BARRY: Right. 22 THE COURT: Everything else takes away from what they 23 say they're going to provide. So if you're not going to say 24 there is less than the insuring agreement, maybe that 25 Ms. Hession will say, okay, satisfactory to produce the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 73MZ911C 1 insuring agreement. I'll get to everybody. 2 If they give you the insuring agreements, and a 3 representation that there are no qualifications or limitations, 4 would that be good enough, or you want the whole policy? 5 MR. BARRY: This is exactly what your ruling was a few 6 years ago, and it's what the defendants have produced, as far 7 as I know. 8 THE COURT: Who remembers now? 9 MR. WILLIAMSON: I do, your Honor. 10 MR. BARRY: He was a representative. 11 THE COURT: We should make him the official historian. 12 MR. WILLIAMSON: Good afternoon, your Honor. Richard 13 Williamson, Ms. Hession's partner, representing the World Trade 14 Center Properties, cross-claimants. 15 At that time there was the wrongful death plaintiffs 16 led by Mr. Moller's committee were pressing for insurance 17 information. Mr. Barry, on behalf of the aviation defendants, 18 argued that it was proprietary in nature; they couldn't really 19 disclose it all; they didn't want to disclose it all. They 20 would give Mr. Moller's committee enough that would enable them 21 to go forward, and they did that. 22 But what our requests are at this time is really to 23 capture two things. One, all of the available insurance 24 policies. Some of -- and some of the defendants, not 25 Mr. Barry's client, he's actually been the best -- some of them SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 73MZ911C 1 have provided nothing, no insurance policy information, 2 nothing. They've hidden and been successful about it. We're 3 saying okay, look, after pressing you many times, we realize 4 you didn't provide anything, here are requests, 5 interrogatories, document requests, we want the information, 6 please provide it. We have some who have asked for extensions 7 of time. Everybody did, actually. We're trying to finish it 8 up because we can't go forward without -- 9 THE COURT: Let me interrupt. I think insurance 10 requests are relevant. I think they're favored by the Federal 11 Rules of Civil Procedure, and unless there's a compelling 12 reason not to disclose, they should be disclosed. If there are 13 compelling reasons not to disclose, I'll hear it or I'll 14 decide. 15 Now, it has been said earlier, as I recall, that there 16 are reluctances among many carriers to disclose their insurance 17 because it's an issue of competitive value. If you want to put 18 on the protective order on this information, I'll sign such an 19 order. 20 It seems to me that in the first instance the insuring 21 agreements are very important and they should be given up. If 22 anyone is going to take a position that there are limitations 23 or qualifications that need to be understood, those should be 24 given up, but ultimately and without much delay it seems to me 25 the entire agreement should be given up so that lawyers can SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 73MZ911C 1 make judgments themselves as to what's involved. I think it 2 should be done, and I would urge you to do your meet and 3 confers and deal with any particular issues, but overall this 4 should happen. 5 MR. BARRY: I can't speak for each individual 6 defendant, your Honor, as to what the position they may take. 7 But if you took -- if your order is that we will produce the 8 entire policy, subject to any proprietary redactions that we 9 might want and agree with counsel, then that is your ruling. 10 It's when they go beyond asking for just the policy where we 11 start to get into trouble. 12 THE COURT: Like what? 13 MR. BARRY: Well, such as correspondence among the 14 brokers and the insurers and leading up to the policy. 15 THE COURT: I'm not very partial to that. 16 MR. BARRY: Neither am I. 17 MS. HESSION: Your Honor, if I may, our discovery 18 requests do go beyond asking for the actual policies. It's in 19 everybody's interest, indeed, in the public interest to know 20 what this pot of insurance is that forms the basis for the 21 statutory cap in this case. 22 THE COURT: But negotiations beforehand or exchanges 23 of correspondence -- 24 MS. HESSION: Not negotiations, your Honor, but we 25 have asked for things like notices of claim, tenders, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 73MZ911C 1 reservation of right letters, denials of coverage, things that 2 are germane to what else might be out there that is 3 theoretically available. 4 THE COURT: Reservations of right are important. 5 MR. BARRY: Of course, and we will indicate that. I 6 just don't want to have to go and start another world war three 7 about correspondence and -- 8 THE COURT: Define the universe that's agreed and 9 define the universe that's not agreed and I'll rule. 10 MR. BARRY: Fine. 11 THE COURT: But I think the general proposition is 12 that the plaintiffs are entitled to know what the insurance 13 limitations are, including reservation rights letters. 14 MR. BARRY: I think you're absolutely right. 15 THE COURT: And they should be supplied promptly. 16 MR. GODFREY: For the record, Lee Godfrey for Huntley. 17 We produced that stuff two years ago, so our feelings are hurt 18 that we're not the best. 19 MR. BARRY: Second best. They're the second best. 20 MS. HESSION: I personally apologize to Mr. Godfrey. 21 There are others who are not wearing hallos on that score. 22 THE COURT: Mr. Tomasik. 23 MR. TOMASIK: Your Honor, if I may, just briefly to 24 clarify, and in support of what Ms. Hession asked for earlier. 25 We've clearly been given information on the insurance that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 73MZ911C 1 applied to the hulls of the aircraft in the particular flights, 2 but what we're interested in learning is what policies applied 3 to the particular check points at the airports; for instance, 4 American Airlines had custodial responsibility at Logan. It 5 seems to us that there very well could be and likely is a 6 separate policy of insurance that may apply. 7 MR. BARRY: Specifically ask for that. If you're 8 going to zero in and ask a specific question and request a 9 specific document on that, we'll consider it. 10 MR. TOMASIK: Just to clarify, that's what we're 11 looking for Delta, Continental custodial responsibilities. 12 THE COURT: You mean in addition to the airlines 13 carrying insurance -- 14 MR. TOMASIK: That's right. 15 THE COURT: They carried insurance for specific 16 activities that were additional? 17 MR. TOMASIK: At the airports themselves. 18 MR. BARRY: That's what he wants to ask. 19 MR. CLIFFORD: Judge -- 20 THE COURT: Hold on, hold on, hold on. 21 MR. CLIFFORD: We're going to meet and confer with 22 them. 23 THE COURT: Hold on. When this case hit, I am sure 24 that the airlines gave notices to all carriers where there was 25 any hint or thought that there might be coverage, and I would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 73MZ911C 1 think the plaintiffs should be entitled to all of that because 2 that will give them the maximum possible universe. And the 3 response of the carriers would give them an idea of how real 4 objections might be and the like, and they shouldn't have to go 5 ask questions or not. 6 When they ask for insurance coverage, I think it 7 should be understood as everything to which a defendant would 8 hope to recover from an insurance carrier in the light that 9 defending one's self were paying for liability. 10 MR. BARRY: And it's -- just, if I may qualify that, 11 because it's not quite that simple when you have the airline 12 having contracts with security companies or leases with airport 13 authorities, et cetera. So their request is going not just to 14 the airlines, but to all the aviation defendants, and each one 15 has to treat that request and that specific question 16 individually. 17 THE COURT: In every sense there had to be an office 18 that was concerned with obtaining coverage from anybody 19 potentially subject to a coverage demand. That's what the 20 plaintiffs want, right, Mr. Clifford? 21 MR. CLIFFORD: Yes, your Honor. 22 MS. HESSION: That's exactly right, your Honor. 23 That's what our discovery was. 24 THE COURT: So we've got that clarified. Let's 25 proceed on that basis. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 73MZ911C 1 MR. CLIFFORD: Yes, sir. 2 MR. MIGLIORI: Before we left documents, there was -- 3 THE COURT: You haven't left. 4 MR. MIGLIORI: Okay. 5 THE COURT: You haven't left. I'm interested to find 6 out how much more documents discovery is going to happen. 7 MR. BARRY: Mr. Podesta is going to cover it. 8 MR. MIGLIORI: There was just one more issue for 9 plaintiffs. There are, particularly the screening companies, 10 there are documents that have been requested months and months 11 ago, years ago over which defendants have not asserted any 12 objection, but production has not been made, and we would like 13 to set a 21 day deadline for those documents that are not 14 subject to SSI or some other objection. We'd like for there to 15 be in the process of moving this case forward a deadline of 21 16 days. 17 THE COURT: Take it 30 days, and if anyone doesn't 18 produce within 30 days, there should be motions to compel. 19 MR. CONNORS: Your Honor, James Connors for Globe. 20 Before we have a ruling on such a general request, could we get 21 some kind of specificity from the plaintiffs as to what he's 22 talking about? We represent Globe. Our understanding is that 23 everything has been requested has either been produced to the 24 plaintiffs or to TSA. 25 THE COURT: Well -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 73MZ911C 1 MR. CONNORS: For a 30 day rule at this point without 2 knowing what we're -- 3 THE COURT: I'm not making a blanket rule. I think 4 Mr. Migliori knows how to implement this broad request. 5 MR. CONNORS: Thank you. 6 THE COURT: So there should be demands made, and 30 7 days from that demand should fix the obligation. And if 8 someone has not produced that which has to be produced, there 9 should be a motion to compel and possibilities of sanctions. 10 MR. MIGLIORI: Thank you, your Honor. 11 MR. CONNORS: And a motion for protective order is 12 appropriate, your Honor. 13 THE COURT: I think that's long passed. 14 MR. CONNORS: Well, but we don't know what we're 15 talking about in terms of this broad based request that 16 we're -- 17 THE COURT: Mr. Migliori is talking about items which 18 have been specifically demanded in the past, where there has 19 not been an objection, but there has not been compliance. 20 MR. CONNORS: I'm not aware of one such document. 21 THE COURT: You're in very good shape then. 22 MR. WAYLAND: Your Honor, Joe Wayland, Simpson 23 Thacher. Again, slightly more complicated than that. There 24 has been a long ongoing dispute between the defendants and the 25 plaintiffs over the scope of the production what should be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 73MZ911C 1 produced. I don't want to bore the Court with the meets and 2 confers and the back and forth. We have agreed, your Honor, to 3 produce what we are willing to produce. It goes to a temporal 4 issue, it goes to which airports are going to be searched and 5 if that's what Mr. Migliori is talking about, we can do that. 6 If he's talking about something else -- 7 THE COURT: Mr. Wayland -- 8 MR. WAYLAND: -- then we have a different issue. 9 THE COURT: -- let's not get involved. You'll know 10 what he's talking about when he gives you the demands. I don't 11 what's been involved in failures to produce, but those 12 parties -- 13 MR. WAYLAND: There haven't been failure to produce, 14 your Honor. 15 THE COURT: Then there is no problem. I don't want to 16 get into it now. 17 MR. MIGLIORI: We'll start the process, your Honor. 18 THE COURT: All right. Good. 19 One excuse parties sometimes give -- I'm sure there 20 are none here -- but one excuse that parties sometimes give is 21 that I'm not producing anything until there's full agreement on 22 what has to be produced. That's not a good reason. 23 MR. WAYLAND: We're long past that, your Honor. We're 24 long past that. 25 THE COURT: Excellent. So given this, Mr. Migliori, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 73MZ911C 1 how much more time do you think before we're finished with 2 documentary production? 3 MR. MIGLIORI: I can't speak -- I haven't been 4 handling the brewed document use, I think between Mr. Tomasik 5 and -- 6 MR. TOMASIK: Judge, understanding that many of the 7 documents are presently in the possession of the TSA, I think 8 there's some still on the way, we would hope to be done with 9 document discovery by May 15, if that's a reasonable date. 10 MR. PEPE: Your Honor, this is Doug Pepe. This is in 11 large measure tied into -- 12 THE COURT: 60 days or so. Okay, I get the idea. 13 MR. PODESTA: Your Honor, Roger Podesta for American 14 Airlines. I think it's going to take substantial longer than 15 60 days to complete document production for several reasons. 16 First, while the reading room has been established, it's not 17 self executing. As Ms. Vargas says, it will take weeks to get 18 clearance, then the cleared attorneys have to go in and review 19 the documents. But merely at that point the documents are not 20 allowed to be used outside the reading room, which means 21 they're effectively useless for the litigation. The attorneys 22 who go into the reading room have to make requests under the 23 protective order to the TSA to review the documents for SSI 24 content, and only at that point will the documents be released 25 for use at depositions or in preparing witnesses. And I think SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 73MZ911C 1 that's going to take a substantial amount of time. It's hard 2 to predict exactly, since we don't know the volume, and since 3 obviously the parties don't control the pace of the TSA. 4 There's also another important recent development on a 5 document discovery issue, and that is that last Friday we 6 received a letter from Ms. Norman indicating that the FBI was 7 prepared to make document production in this case, and I 8 believe that will be the first FBI document production in the 9 case. There have been numerous requests from both plaintiffs 10 and defendants for FBI production. These are very important 11 documents. They relate to interviews conducted of witnesses at 12 the airports in the immediate aftermath of 9/11. They relate 13 to logs and screening equipment, of records that were seized 14 from the airlines and the screening companies as part of the 15 FBI investigation. They relate to materials that were in the 16 possession of hijackers, the suitcase that Mohamed Atta had, 17 the contents of the suitcase of Mohamed Atta that was found in 18 his luggage that was checked on U.S. Air but never boarded on 19 Flight 11, these are very important documents. The FBI has 20 said we need to narrow the existing document request, and we'll 21 give people 30 days to make new ones. And we've been informed 22 by the Department of Justice, as the FBI review will be 23 complicated, because they have to make decisions as to whether 24 the information is classified or whether it relates to ongoing 25 criminal investigations such as the enemy combatants who down SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 73MZ911C 1 at Guantanamo who may be subject to criminal prosecution, so 2 that process will take awhile. 3 There are also ongoing discovery requests for 4 documents that are being served in the litigation almost as we 5 speak. Within the last ten days requests have been served by 6 the plaintiffs for production of information relating to 7 screening equipment, TIPS, thread image projection records from 8 Portland and from Logan and other documents relating to those 9 airports. I think that the responses will indicate that a lot 10 of those documents are not in the possession of the defendants 11 any longer, but are in the possession the government, either 12 the FBI or the FAA, or possibly in some cases the Massachusetts 13 State Police. So that responses to those requests will likely 14 lead to additional requests for documents from the government 15 as a follow on, and these are not trivial documents. These are 16 important documents that are key to the case, and I don't even 17 get into -- 18 THE COURT: So you're not even prepared, I would 19 think, to give me an estimate of when documentary production 20 would be complete. 21 MR. PODESTA: I think, you know, I will be shot by my 22 co-defendants for even giving a date, and I think that really 23 document discovery in this case probably should be tied in not 24 to a set date for completing document discovery, but just part 25 of the completion of factual discovery. But I would believe -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 73MZ911C 1 THE COURT: Mr. Podesta -- 2 MR. PODESTA: -- six months would be a minimum. 3 THE COURT: -- from what you say, you're engaging in 4 more of a speculation than an estimate. 5 MR. PODESTA: I think that's right. My testimony 6 should be stricken. Because we don't control -- 7 THE COURT: We'll call it a speculative estimate. 8 Take it for what it's worth. 9 MR. PODESTA: I have not even -- I have not even 10 mentioned the complicated discovery on the damage issues 11 relating to the property damage issues case -- 12 THE COURT: Let's hold it there. I want to ask one 13 more question of Mr. Podesta. Depositions have begun and 14 they'll continue. What's your recommendation to me to how to 15 regulate the ongoing depositions in light of these kinds of 16 problems. 17 MR. PODESTA: Well, our position initially of the 18 defendants was if the plaintiffs take a deposition knowing they 19 don't have all the documents, they should not expect to call 20 the witnesses back a second time. 21 Your Honor has indicated that, well, that's not 22 acceptable. 23 I think probably the fair thing to do would be to say, 24 look, if you want to call a witness back for a second time, you 25 have to make a strong showing, the specific new document you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 73MZ911C 1 want to question him on, and there should be a time limit, like 2 about an hour for the additional -- 3 THE COURT: That's hard to do that because that would 4 be arbitrary. We don't know what's in the second document or 5 the new documents. 6 MR. PODESTA: But then the standard -- 7 THE COURT: And I think the lawyers can police 8 themselves because the people representing the witness are 9 going to object and the parties are going to object for 10 repetition. That's something I'm going to leave to you. 11 But I think the propositions that you're telling me is 12 that depositions have to go forward, that without abusing 13 witnesses, there has to be a potential for recalling them as 14 new information comes out, and it will be one of the 15 complications of regulating this case. 16 MR. PODESTA: I think that's correct. I think there 17 should be some threshold showing to bring some of these 18 witnesses back, particularly, for example, some of the non 19 management is an emotional experience to go through this. 20 THE COURT: I could tell you, Mr. Podesta, I 21 understand that, but unless there is abuse, I would not follow 22 that rule. I will not follow -- require a threshold showing, 23 but of course like all other rules they have to be revisited. 24 Mr. Moller, you wanted to say something. 25 MR. MOLLER: Yeah. Mr. Podesta conflates two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 73MZ911C 1 problems. The first problem is getting the defendants to 2 produce all the documents that have been requested of them. If 3 they go to the FBI or the FBI has documents to produce or to be 4 examined or to be -- 5 MR. BARRY: That's a separate -- 6 THE COURT: I have the distinct clear. 60 days is the 7 estimate for defendants discharging their obligations to 8 produce, unless new fields of inquiry are shown, and 9 recognizing that there is ongoing documentary production, it 10 will be required of third parties and the government. 11 Ms. Normand. 12 MS. NORMAND: If I could just update. 13 THE COURT: Good afternoon, Ms. Normand, how are you? 14 MS. NORMAND: Thank you, your Honor. There are really 15 two categories of documents that the government has been 16 producing and is engaged in producing. One is the TSA 17 documents that have been affirmatively requested by the 18 defendants, as well as the plaintiffs. The first request was 19 received in July of 2006. We met and conferred, and we've now 20 produced over 8,000 pages, including some pages that have been 21 designated for the reading room. We understand that further 22 requests are forthcoming and we'll deal with those when they 23 come in. 24 I would like to make the point that one of the 25 difficulties in giving the Court an estimate with regard to SSI SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 73MZ911C 1 review is that the same people who are doing SSI review are 2 also trying to process documents in response to requests, so 3 they are really working incredibly hard, and sometimes there 4 are issues as to where to put the resources and where to 5 prioritize. 6 With regard to the FBI documents, the first request is 7 actually a Motley Rice request that came in in late October of 8 2006. Since that time, the FBI has designated a team of people 9 to work on requests that have been received from really all of 10 the parties. They've gathered more than 20,000 pages of 11 responsive material with, I should add, substantial assistance 12 from personnel in the Eastern District of Virginia that was 13 responsible for the Moussoui prosecution. And they're in the 14 process of reviewing that material and will be able to begin 15 production soon. 16 The FBI and the government is committed to assisting 17 the parties to provide appropriate discovery, while also 18 protecting classified information, governmental privileges and 19 the like. 20 We understand that there are further requests for FBI 21 documents that are coming. And what we did on Friday was to 22 try to put in place a procedure that would set a deadline for 23 those requests, and right now that deadline is April 16th, 30 24 days from my letter. And the purpose of that was to avoid 25 piecemeal requests, piecemeal review so that we can go through SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 73MZ911C 1 these files once, go through the review process once, and -- 2 THE COURT: Is that a realistic deadline from the 3 perspective of the parties? 4 MR. MIGLIORI: For plaintiffs, your Honor, it is. 5 MS. NORMAND: So I think the overall point is that 6 we're proceeding forward, we have a process in place and we're 7 making progress. 8 THE COURT: Thank you, Ms. Normand. 9 We're at 4B in the outline. 10 MR. MOLLER: Your Honor, the plaintiffs do not need or 11 intend to pursue the discovery of dep -- through depositions of 12 government witnesses. We're satisfied that there is nothing 13 that they have that's relevant to what the defendant knew or 14 should have known with respect to 9/11, and that would simply 15 take us off the into a thicket of irrelevant information and 16 time. 17 MR. BARRY: Your Honor, Mr. Wayland, I think can 18 expound on this issue at great more length. 19 THE COURT: You can stay where you are, Mr. Wayland. 20 MR. WAYLAND: Your Honor, depending on how much you 21 want to hear and how much you think this is an issue, it may 22 take awhile, but we'll see. 23 Your Honor, as I understand it from the plaintiff's 24 position, and they've told us this privately, they've told us 25 this in front of you during the mediation process, they don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 73MZ911C 1 think any government discovery is relevant any more. They 2 don't think any depositions of the government are relevant any 3 more, and they're ready to go ahead and try their cases. 4 We think it's obvious on the face of the case that the 5 Government's at the heart of it, and the government discovery 6 is critical to our defenses as we explained to you. 7 I'm prepared to talk at length about why that is, but 8 I don't think it's necessary to do so. And one of the reasons 9 I don't think it is necessary to do so is because the 10 plaintiffs, themselves, all of them, each one of them signed a 11 document which they submitted to the Eastern District of 12 Virginia, and then went to the Court's Circuit on and said we 13 need all of this government discovery because it is relevant to 14 the claims that's relevant to the defenses and it's relevant to 15 the duties of the, of all of the parties involved. So I hope I 16 don't have to spend much time because I think before today, 17 everyone recognized the need to take discovery of the 18 government. 19 THE COURT: Well, the issues I put are Louie Freeh, 20 George Tenet and Richie Clark. 21 MR. WAYLAND: I think, your Honor, with respect to 22 those three specific requests, the way we proceeded was to 23 begin the process to see what the reaction of the government 24 would be. 25 THE COURT: They came back with a predictable SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 73MZ911C 1 response. 2 MR. WAYLAND: But -- for the individuals, your Honor, 3 but not so much for the subject matter of the testimony that we 4 wanted. And if you look at the -- 5 THE COURT: All right. So we have consensus that Mr. 6 Freeh, Mr. Tenet and Mr. Clark will not be witnesses, at least 7 not at the present juncture 8 MR. WAYLAND: Not at the present time, as long as 9 we -- just as we did the FAA, they provided a 30(b)(6) witness 10 to substitute, so. 11 THE COURT: All right. Those notices involving 12 Messrs. Freeh, Tenet and Clark are withdrawn. 13 MR. WAYLAND: Well, with respect to them individually. 14 With respect to subject matter, just as with the FAA -- 15 THE COURT: If you're looking for 30(b)(6), you can't 16 determine who the people will be. 17 MR. WAYLAND: You're right, your Honor. Okay. 18 THE COURT: So Freeh, Tenet and Clark can go about 19 their business. 20 MR. WAYLAND: They may, your Honor, but we will 21 pursue -- 22 THE COURT: The will breathe a sigh of relief. 23 30(b)(6) FAA witnesses, is there any objection to 24 this? 25 MS. NORMAND: No, your Honor. In fact, we've had an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 73MZ911C 1 initial meet and confer with the defendants, and I think it was 2 a very productive meeting. We agreed on a number of topics 3 that would be appropriate. There are outstanding issues, 4 however. We've, for example, made clear to the defendants our 5 view that information, intelligence information known to the 6 FAA or not known to the FAA that was not communicated to the 7 airlines is not relevant to the issues in dispute in this case, 8 and for obvious reasons raises a host of issues for the 9 government. 10 THE COURT: I've dealt with that issue in connection 11 with World Trade Center applications if I remember correctly 12 and I'll deal with them again, and I think those parties 13 pushing for that need to know the record. 14 MR. MOLLER: We will, your Honor. 15 THE COURT: By I anticipate that I would rule that 16 information not communicated is not relevant. 17 MR. WAYLAND: Your Honor, this is an extraordinary 18 serious issue for all the defendants and we need to make a 19 substantial record on that with a hearing and the opportunity 20 to -- full briefing. Because we think once your Honor hears 21 our argument, sees the law on this issue and thinks about the 22 issues, you may have a different view of, so we need to have a 23 second -- 24 THE COURT: Make a motion. Do it by motion. 25 MR. WAYLAND: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 73MZ911C 1 MR. MIGLIORI: Your Honor, we'd ask that it be made 2 promptly as well, because -- 3 THE COURT: Mr. Wayland can make it promptly. 4 MR. WAYLAND: We will make it promptly, your Honor. 5 It's a substantial motion. It will take some time to put it 6 together, but we will make a motion. 7 THE COURT: 30 days? 8 MR. WAYLAND: 30 days, your Honor. 9 MR. MIGLIORI: Your Honor, just so it's clear on the 10 record, the representation -- there are two types of federal 11 discovery. One has to do with the investigations of what 12 happened on 9/11 and leading up to 9/11, as opposed to the 13 discovery of what the government knew pre9/11 and what it did 14 or didn't tell, and we share the Government's concern about the 15 letter. 16 THE COURT: I didn't catch the distinction. 17 MR. MIGLIORI: The nine -- the FBI after, on the day 18 of 9/11, went right to Logan and started interviewing people 19 with knowledge about the events immediately. 20 THE COURT: And I understand that can lead to relevant 21 information. 22 MR. MIGLIORI: And that's an investigative discovery 23 consistent with what plaintiffs have asked for in a very 24 tailored specific way. That's -- 25 THE COURT: Is the FBI willing to surrender that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 50 73MZ911C 1 information? 2 MR. MIGLIORI: Some of it has come. 3 MS. NORMAND: Your Honor, that is the type of 4 information that is likely to be provided. I'm not in a 5 position to articulate our position as to specific documents, 6 but things like interviews of employees at the airport and 7 things confiscated by FBI or FAA as of that time, those are 8 probably the types of things that will be appropriately 9 provided. 10 THE COURT: Well, If produced, I can understand that 11 those are relevant in discovery sense. 12 MR. MIGLIORI: So that's one area that we've been sort 13 of in agreement. And we agree with the government, though, 14 that discovery of the government, the government about what 15 they knew or didn't tell prior to 9/11, didn't tell the 16 defendants, plaintiffs think that's highly irrelevant and -- 17 THE COURT: I understand. But Mr. Wayland -- 18 MR. MIGLIORI: No, I understand. 19 THE COURT: -- is pushing for that and he has a right 20 to make his record. 21 MR. MIGLIORI: And we'll respond appropriately. I 22 just want to make sure the Court was aware there are two 23 different types of federal discovery that we're talking about. 24 THE COURT: Mr. Wayland, would you create a briefing 25 schedule for this? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 73MZ911C 1 MR. WAYLAND: I will, your Honor. 2 THE COURT: And submit it to me to so order. 3 MR. WAYLAND: Yes, sir. 4 THE COURT: Now, in trying to think ahead and looking 5 to see some end game to this, it's been dismaying because, 6 first of all, it's hard for people to define what they mean. 7 Second, plaintiffs have been outspoken saying they 8 pretty much have what they need. 9 And, third, defendants focus in on a letter from 10 Mr. Barry that talked about large numbers of depositions that 11 they still need to take. 12 Part of that issue of large numbers may depend on the 13 outcome of Mr. Wayland's motion and, therefore, I think it's 14 important for me to rule on that motion as quickly as possible. 15 I want to ask you a different question, Mr. Barry. On 16 the assumption that your side will win on the motion, you'll 17 have a very large estimate. If you don't, can you estimate the 18 number of witnesses and who they are likely to be or what 19 categories? 20 Mr. Wayland looks like he wants to answer the request. 21 MR. WAYLAND: I'm not sure it would be that large even 22 if we win, your Honor. I had been trying to think about the 23 numbers and identify witnesses from publicly available 24 documents, and we've identified 12 witnesses so far that we've 25 actually pursued, for which we're taking off -- three of which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 73MZ911C 1 are taken off the table today, but will be replaced by the 2 30(b)(6). And I don't think even if we win our motion, your 3 Honor, it's more than another 20 or so witnesses, if we really 4 parse through it and try and get the people who can really 5 provide the answer, so I don't think -- 6 THE COURT: The fewer number of witnesses in 7 prospect -- 8 MR. WAYLAND: I don't think -- 9 THE COURT: -- the better your chances of getting a 10 practical result. 11 MR. WAYLAND: Right. 12 THE COURT: In saying. Go ahead and get done within a 13 space of narrow frame. 14 MR. WAYLAND: Exactly. It's not a -- this is not 15 morass. It's pretty focused exercise. 16 THE COURT: I'm reacting, though, to Mr. Barry's 17 letter, which really made me concerned about the number of 18 people that he has in mind. 19 MR. WAYLAND: It's not, it's not a large number, your 20 Honor. 21 MR. BARRY: That was a joint letter. I know I've been 22 vilified for signing that letter, but, you know, that was on 23 behalf of all the aviation defendants. 24 THE COURT: You've told me that privately. 25 MR. MIGLIORI: I heard that too, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 73MZ911C 1 MR. MOLLER: I would request in Mr. Wayland's motion 2 that they identify the individuals who constitute the universe 3 of people they think they want to depose, because that will 4 also sharpen the focus. 5 MR. BARRY: In addition to the 30(b)(6). 6 THE COURT: I'm not going to impose that because, once 7 it gets into a motion, there's more inflexibility than without 8 it. But I think you might share in a side letter where you're 9 dealing with best representation and good faith rather than a 10 hard rule. 11 MR. WAYLAND: I will, your Honor. 12 MR. WAYLAND: I would just like to second that, 13 because we have been asking for lists of witnesses since 14 September, and we've gotten Clark and Tenet and Freeh and few 15 others in the last now month, but apparently there are longer 16 lists of witnesses and government's position may not be the 17 same as to each witness. We're really trying to take a 18 targeted witness by witness approach here, so there may -- I 19 would like to narrow the dispute. 20 THE COURT: Yeah, and I think as I said before, the 21 fewer the witnesses, the more practical an answer can be 22 gotten. 23 MR. BARRY: Well, true. And the plaintiffs have a 24 rather long list of government witnesses that they put forth. 25 THE COURT: Yeah, but I gather from them that -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 54 73MZ911C 1 MR. BARRY: Now they want to back away from it. 2 MR. TOMASIK: Judge, if I may? 3 THE COURT: It's all right, as long as they back away, 4 it's fine. 5 MR. TOMASIK: Just to speak to that. The defendants 6 asked us an honest question, we answered it honestly who we 7 were aware who had knowledge about the events. To date, we 8 haven't noticed any of those depositions and I can assure this 9 Court we don't intend to -- 10 MR. MIGLIORI: It's also, if I may, your Honor, it's 11 circular. If they're going to bring in that knowledge, then 12 we're going to need to have a witness who may say something 13 different, so. 14 THE COURT: Okay, folks. 15 There is an indication I have here that someone from 16 Seven World Trade Center wants to speak on the issue of 17 depositions in the case? 18 MR. SACHS: No, your Honor. It was just a -- you had, 19 at our last status conference, you had indicated that before we 20 started depositions we needed to confer with you, and I just 21 was just trying to get on the agenda that you set a date to do 22 that, that's all, and we can do that informally. 23 THE COURT: All right. I'm trying to think that 24 putting all of this together, that a reasonable estimate to 25 complete all this discovery would be about a year. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 55 73MZ911C 1 MR. BARRY: Does that include expert discovery, your 2 Honor? 3 THE COURT: No. 4 MR. BARRY: We haven't gotten to that yet. 5 THE COURT: No, we haven't. Mr. Migliori is shaking 6 your head in the negative. 7 MR. MIGLIORI: Yes, your Honor. 8 THE COURT: I know you're displeased by the answer, 9 but I'm trying to be realistic. I'm also displeased by the 10 answer, but -- 11 MR. MIGLIORI: And I appreciate that, your Honor. In 12 fact, we know the Court has done a lot to move this process 13 along forward. 14 I do think, as the Court -- the Court used an analogy 15 that I've been trying to recreate about the desk drawers and 16 getting it -- getting through this process knowing you have a 17 deadline set. We've all had litigation that's been extremely 18 complex. If the Court puts in a deadline in the works 19 backwards from that deadline, as we attempted to do in our 20 proposed case management order for 77, we strongly feel that 21 these parties, with all their resources, can get this work done 22 in the timeframe that we set out witnesses six months. 23 Now, there may also be a distinction between the work 24 that involves a property claims and the potentials for 25 dispositive motions and choice of law issues that relate to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 56 73MZ911C 1 some of the flights that, quite frankly, for Flight 77, for 2 example, they simply don't exist. So we think at the very 3 least, your Honor, that there's going to be a year set for that 4 type of discovery. Motley Rice and the Franz firm are the only 5 firms with Flight 77 cases. We're ready. We want to try our 6 cases. Our clients, as the Court has repeatedly said, our 7 clients deserve that and the Court has worked very hard to get 8 it for them. 9 We respectfully request that at least we start to 10 split off some of these claims so that the 77 flights with some 11 maybe some bellwether single nondepending cases go forward as 12 full three week, as the Court said, four week trials set an 13 aggressive schedule, that that get done and not wait for all 14 the issues for all the various interests with all the 15 complications of some flights holding back a flight like 77. 16 THE COURT: I'm not prepared to do it today. I think 17 when Mr. Wayland's motion is made, a number of depositions 18 become fixed and some rulings are made on scope. I should be 19 in position to be able to develop an accurate prediction of how 20 long this process will take, and then to set a closure date and 21 to have a finding without a prospect of adjournment. 22 If I can't comprehend all cases in that, then I will 23 think very hard about severing different groupings of cases, 24 but not today. 25 Mr. Clifford? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 57 73MZ911C 1 MR. CLIFFORD: Your Honor, recently the Fourth Circuit 2 in the Moussoui case ruled in such a way as it related to the 3 intervenors' request for discovery produced by the government 4 that was not part of the public proceeding, and in the opinion 5 itself spoke to the issue that this case was given to the 6 Southern District in such a way that venue, exclusive 7 jurisdiction and everything is here. And it's a discussion 8 that we've had in our circles is that, given the nature of The 9 Air Transportation Safety System Stabilization Act, that we 10 hold the view that your Honor has the ability to use for 11 purposes of trial the compulsory process for people, witness, 12 potential witnesses on a national basis as distinguished from 13 any other known -- 14 THE COURT: You want me to decide that today? 15 MR. CLIFFORD: No, but here's what I'm getting to by 16 mentioning it. If our analysis of that is correct, that could 17 markedly dramatically lower the number of depositions that have 18 to be taken. 19 THE COURT: Why? 20 MR. CLIFFORD: Because we'd be willing to take 21 witnesses on the stand and have them here and compelled to be 22 here during the course of a trial. 23 THE COURT: If you would do that, I'm sure the 24 defendants would want to have depositions of those witnesses. 25 MR. CLIFFORD: Maybe yes, maybe no. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 58 73MZ911C 1 THE COURT: It's not going to shorten anything, 2 Mr. Clifford. 3 MR. CLIFFORD: But the point being it would certainly 4 let us get to the trials we think sooner than later. 5 THE COURT: I don't think so. These are very 6 important cases, and if one side wants to call a witness, the 7 other side's going to want to depose that witness. So I think 8 that's not going to be productive. 9 I, as you can sense, I want to reach the end game of 10 discovery very quickly where cases settle, encourage them to 11 start very seriously in defining their settlement goals and 12 resolving them, because once we start trials, there is not 13 going to be time to do this. I will not suspend trials. Those 14 of you who know me on trials know that. Once we start, we 15 continue. No breaks. So I think very seriously of this. I'm 16 up to date in my calendar. When you're ready, I'm ready. 17 So we don't have to worry, Mr. Migliori, on crowded 18 schedules. So far, I've been able to manage my dockets and try 19 cases that are ready when they're ready. 20 MR. MIGLIORI: And we appreciate that, your Honor. I 21 do fear that setting an expectation, even in this hearing that 22 there is going to be a month, a year of just fact discovery is, 23 in fact, going to have a pretty chilling effect on productive 24 settlement discussions, because when the Court -- 25 THE COURT: Mr. Migliori, I think you appreciate that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 59 73MZ911C 1 I said that as an extordinary statement, and we are well short 2 of that now. So I think we're in a situation where Mr. 3 Wayland's going to make a motion and probably going to be 4 decided within two months. It's probably going to decide or 5 have representations made of a limited number of additional 6 witnesses. I think you could see the document production is 7 progressing -- slower than you want, slower than I want, but 8 it's progressing. 9 30(b)(6) witness are going to be taken. I think the 10 fields of open-ended information are closing, and we're making 11 progress. I was about to say good progress. I'll take that 12 back. We're making progress. So I understand your wishes and 13 they are consistent with my own. 14 MR. MIGLIORI: Thank you, your Honor. 15 THE COURT: Mr. Barry, on experts, I haven't begun to 16 think about that. Maybe I should have, but what kinds of 17 experts would you be thinking about in this case? 18 MR. BARRY: We've got a whole list, your Honor. 19 Mr. Godfrey is prepared to talk on that subject, but you should 20 be aware at least of the general categories of the experts that 21 we think -- 22 THE COURT: What I think I'd like you to do, rather 23 than hear it now, Mr. Godfey, I know you'll be very 24 disappointed -- is for you to have an exchange with the 25 plaintiffs on experts. I'd like to start thinking about that, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 60 73MZ911C 1 and maybe within a couple of weeks you can write me a joint 2 letter on what kinds of experts you think are appropriate, what 3 kind of experts the plaintiffs think are appropriate. If there 4 is disagreement on that, to really outline very briefly the 5 disagreement, because I'll want to have a more extended 6 discussion with you on experts. 7 MR. GODFREY: We'll do that, your Honor. 8 THE COURT: We also may need some experts discovery on 9 that, but it's a good point to start thinking about that now. 10 You know enough about the case and what you can do and what you 11 can't do. 12 MR. CLIFFORD: Does that include property damage, your 13 Honor? 14 THE COURT: I don't know how to exclude you, 15 Mr. Clifford, so -- 16 MR. CLIFFORD: They're doing a pretty good job so far. 17 THE COURT: Yes, Ms. Normand. 18 MS. NORMAND: Your Honor, just for clarity of the 19 record, the FAA has agreed to a 30(b)(6). We've had no other 20 requests for 30(b)(6) of other agencies. 21 THE COURT: There may not be any. 22 MS. NORMAND: Thank you, your Honor. 23 THE COURT: Yes, Mr. Migliori. 24 MR. MIGLIORI: Did you set a deadline for the exchange 25 of expert categories? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 61 73MZ911C 1 THE COURT: I said two weeks I'd like to have a 2 letter, but it's not a firm deadline. 3 MR. MIGLIORI: Okay, thank you. 4 MR. GODFREY: Good. We'll deal with Mr. Migliori on 5 that. 6 THE COURT: Sure, Mr. Godfey. Thank you. 7 MR. WILLIAMSON: Your Honor, I only the wanted to 8 suggest, along with Mr. Clifford, that we be included in the 9 discussions with Mr. Godfrey concerning the experts. 10 THE COURT: Yes, sure. 11 MR. WILLIAMSON: Your Honor has our submission on our 12 proposed trial format and schedules just as Motley Rice did. 13 THE COURT: I want to get to that point now. It's 14 five. 15 MR. WILLIAMSON: Very well. 16 MR. BARRY: And Mr. Clifford is going to be involved 17 in the expert exchange, right? 18 THE COURT: Like all other things, whoever wants to be 19 involved. 20 MR. GODFREY: If Mr. Williamson is going to be in it, 21 your Honor, I'm think I'm going to withdraw. 22 THE COURT: Wow. I've had your separate submissions 23 about what kind of trial we would have, and Mr. Migliori wants 24 to split off the Pentagon case, and I guess he could do that 25 because the damages are severable, but are they really? Is the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 62 73MZ911C 1 same insurance not applicable to both the Pentagon and the 2 World Trade Center? 3 MR. BARRY: No, it's not, your Honor. 4 THE COURT: Separate? 5 MR. BARRY: Separate. 6 THE COURT: Well, what do you say to a trial number 7 77? 8 MR. MOTLEY: We say yes, your Honor. 9 MR. MIGLIORI: I brought Mr. Motley for that purpose. 10 THE COURT: Why are you hiding? You put Mr. Migliori 11 in front. 12 MR. MOTLEY: He's a good face man, Judge. 13 THE COURT: He's got a big voice, you know. 14 MR. MOTLEY: He's Italian, Judge. 15 MR. BARRY: Your Honor, there is a myriad of issues 16 involved in this, but, and the defendants are not of one mind 17 on how these four separate flights should be tried, whether or 18 not there should be four separate trials, whether there should 19 be a trial of the property cases Flight 11 and Flight 175, 20 separately or together. 21 We had a meeting yesterday that went on for three 22 hours, and we're not of one mind on that. So I can't say, well 23 what about a Flight 77 trial. It has facial appeal, obviously, 24 because it's singular, as does Flight 93. Property is not 25 involved. But one way or the other, we're a long way from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 63 73MZ911C 1 being ready to defend ourselves in a Flight 77 trial, just as 2 we are in any of the other trials. 3 So to answer your Honor's question, I think it's a 4 possibility. Whether it's the one to go first or not, I think 5 remains to be seen, but I think we're best to leave this to 6 further reflection by the parties and attempts at discussion, 7 which we've done. 8 MR. CLIFFORD: That's all right. I was stretching. 9 MR. BARRY: We had a meeting last week -- oh, I didn't 10 see you standing. 11 MR. CLIFFORD: It takes one to know one. 12 MR. BARRY: We had a discussion last week with the 13 plaintiffs exactly on this subject. You know, I wouldn't say 14 we're close to an agreement by any stretch of the imagination, 15 but at least we're talking. 16 MR. CLIFFORD: Well, your Honor, Property believes 17 that going forward with a trial on 77, followed by a trial 18 setting on 93 is going to help the Court settle these cases. 19 Certainly, we believe that consistent with our view, that the 20 death cases can go forward first. We've been deferring to that 21 as you know. You know, we talked about this one year potential 22 discovery. There's been no discussion that we've offered to 23 you today about multi tracking because the pace of the 24 discovery's been arduously slow. But we think that if your 25 Honor set an October trial date for 77, what you're going to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 64 73MZ911C 1 find is about a month before that date all those cases are 2 going to be gone, and if you follow that by setting for 93, 3 about a month before that trial they're all going to be gone. 4 And it's not mutually exclusive to trial setting that we can 5 keep on going with this discovery. They keep telling us -- 6 THE COURT: I don't like to set trial dates without 7 knowing that I'm actually going to try the trial on those 8 dates. 9 MR. CLIFFORD: Put them on trial. The plaintiffs, 10 Mr. Motley and his clients are prepared to do it. Let him go. 11 THE COURT: I can't put cases on trial where one side 12 is not yet ready. 13 MR. CLIFFORD: If you read Mr. Barry's letter to the 14 Court, he'll never be ready. 15 THE COURT: Yes, he will. 16 MR. BARRY: They're ganging up on me, Judge. He's 17 taking the side of the wrongful death people. Now I can tell. 18 THE COURT: Mr. Barry, you have no problem taking care 19 of yourself. 20 MR. BARRY: Your Honor, can I raise one other -- 21 THE COURT: Well, let me just say this before I -- one 22 point. When you're ready, I'm ready. I'm not setting 23 artificial dates, and I do not set dates with the thought that 24 cases will settle. If I set a date, we're actually going to 25 trial. And I can't go by one side's readiness. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 65 73MZ911C 1 Mr. Barry's not taking 90 depositions. It's clear 2 from everything that's been said that that list is going to be 3 paired very very substantially. Mr. Wayland has said that. So 4 we'll see by the next session what they're going to come up 5 with. By that time there will be a ruling on the motion, we 6 should be in better shape to know. 7 MR. BARRY: Your Honor, the other point that I wanted 8 to make was a subject that I've discussed with Mr. Podesta and 9 I have discussed with Mr. Rice and some of the other 10 plaintiffs, and that is the possibility of damages only trials. 11 If people are interested, if we can't seem to get together on 12 the amount of compensatory damages to be awarded, the defendant 13 may be agreeable to try -- 14 THE COURT: I have that -- 15 MR. BARRY: -- cases on damages only. 16 THE COURT: I have it on the list here. It was 17 actually my thought as an alternative, because it has the 18 virtue -- has a lot of virtue of the short trial or series of 19 short trial. It has virtue of creating paradigms that may be 20 useful, and they're ready. They should be ready. 21 MR. BARRY: They can be ready. 22 THE COURT: If they're not ready, they very quickly 23 can become ready. 24 Mr. Migliori? 25 MR. MIGLIORI: With respect to some of those flights, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 66 73MZ911C 1 your Honor, for example, under Virginia law, plaintiffs take 2 the position that punitive damages are still in play and 3 proceeding on a damages only trial would involve testimony -- 4 THE COURT: I'll rule -- 5 MR. MIGLIORI: -- on things of that nature. 6 Secondly, your Honor, we think it -- 7 THE COURT: You mean -- I understand. In other words, 8 if punitive damages are in play, the conduct of the defendants 9 that gives rise to the liability -- 10 MR. MIGLIORI: Is in play. 11 THE COURT: -- obviously rises. But if they're not in 12 play that doesn't -- 13 MR. MIGLIORI: Which shouldn't be the basis to rule on 14 the motion, but -- 15 THE COURT: No. One rules on the basis of the law, 16 not on the -- 17 MR. BARRY: If punitive damages are in play, your 18 Honor, they're not damages only trials. There is a full trial 19 on liability. 20 MR. MIGLIORI: Which is my point. 21 And my second point, your Honor, is that it is, in our 22 view, unfair for a plaintiff to go into a trial and ask jurors 23 to assess damages when they don't have a liability story, when 24 they don't know what the conduct is that's being alleged, so. 25 THE COURT: Why is it unfair? The issues are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 67 73MZ911C 1 different. A statement can be given to the jury what brings 2 them here. 3 MR. MIGLIORI: Because on, particularly with 9/11, 4 your Honor, so many people bring their own, especially in the 5 Southern District, miles, just a few miles from Ground Zero, 6 people bring their own conceptions of 9/11 and whose fault it 7 was to their experiences. 8 And we can instruct these jurors up and down every day 9 of the trial not to consider it, but with an event like 9/11 10 they need to hear the story. And so our view is, your Honor -- 11 and we're not opposed to talk about other vehicles trying to 12 get our cases resolved. We're not trying to be obstreperous. 13 But we really feel that it's critical that when a jury decides 14 a number, that they understand what the evidence is and not 15 what they've talked about for the past six years because this 16 story is on the news every single day. So it's hard in this 17 case to sterilize it as a damages only case because there is no 18 way a juror is not going to infuse his or her own views of 19 whose fault it is. 20 THE COURT: It seems to me that's a defendant's 21 argument, not a plaintiff's argument. 22 MR. MIGLIORI: We don't know, because we don't know. 23 In focusing group this case, some jurors feel very strongly 24 that one particular entity, whether it be the airlines or the 25 government may have its own fault. And as we know from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 68 73MZ911C 1 studying jurors' verdicts, they can compromise or they can 2 reach their decision based on lots of things that have nothing 3 to do with what the evidence is. It's -- 4 THE COURT: Well, I have to assume they're going to 5 follow instructions and that they'll decide on the basis of 6 instructions, and if the instructions tell them to find 7 damages, they'll find damages. 8 There's a greater danger from your argument that the 9 liability issues will be skewed. But even as to liability 10 issues, I worked with a lot of juries, not all the same as the 11 jurors that you're involved with, but jurors tend to do the 12 right thing, I think. 13 MR. MIGLIORI: And we do have faith in that process, 14 and that's why we're trying to push for a trial so quickly. 15 But we're convinced, as the Court indicated in prior 16 conversations, we can get a liability and damages trial done in 17 a three-to-four week period as the Court intimated it would 18 prefer. 19 I don't think that there is any reason to, especially 20 in a flight like 77 where we have the support of a Property 21 PEC, we have the support of the entire PEC for plaintiff 22 wrongful death, even the firms that are not involved in that 23 flight, we can move forward on this much more aggressively, get 24 a full trial in, a clean trial in, and a short trial in on the 25 full case for a single plaintiff. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 69 73MZ911C 1 THE COURT: Well, it's a thought. I'm not wedded 2 myself to any one of these alternatives. But I look upon this 3 case realistically as taking months longer before they settle 4 and maybe more months than I envisioned; whereas, a damages 5 trial can be limited, can be quick, it can be very useful. But 6 I don't know. I have to think more. 7 Mr. Williamson? 8 MR. WILLIAMSON: Yes. Thank you very much, your 9 Honor. As I mentioned earlier, and as you know, we sent you 10 our proposal and our reasoning behind it in our letter of 11 March 19th. We share Motley Rice's desire for an earlier 12 trial. We understand the discovery issues confronting the 13 Court, would also like to -- factual discovery to be completed 14 in less than a year, but we understand that you're not 15 resolving that today. You're doing the best you can. But our 16 client -- 17 THE COURT: One of the problems that comes out of your 18 situation, is you're both a defendant and plaintiff. 19 MR. WILLIAMSON: Well, we're only a defendant in one 20 remaining wrongful death case, your Honor, and we don't see 21 that as a problem. Because we believe we're going to be able 22 to -- without giving away the exact strategy -- convince that 23 plaintiff -- 24 THE COURT: So you want me to assume that you're going 25 to be a plaintiff only. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 70 73MZ911C 1 MR. WILLIAMSON: Correct, precisely right. And 2 leaving aside the issue of the exact timing of when it would 3 be, our client, as well as the other victims on 9/11, have 4 rights. And your Honor has acknowledged this before, to just 5 say, okay, because Mr. Migliori says, well, let's just take 6 this particular person or this particular flight set of victims 7 and give them a preference, in effect, which they're not 8 entitled to, as you've acknowledged before, under the federal 9 rules -- 10 THE COURT: Why would they have a preference? 11 MR. WILLIAMSON -- is on -- because they're going to be 12 able to go to trial first. 13 THE COURT: Somebody's got to go first. 14 MR. WILLIAMSON: We should all go together is our 15 proposal under Rule 42 as your Honor -- 16 THE COURT: I think I -- 17 MR. WILLIAMSON -- noted on the agenda 18 THE COURT: It would be a very complicated and 19 difficult trial to try cases of two different airports and four 20 different flights with four different safety procedures at the 21 same time. 22 MR. WILLIAMSON: Our suggestion is it's doable. We 23 thought that if -- 24 THE COURT: Doable, yes. 25 MR. WILLIAMSON: If it were bifurcated and liability SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 71 73MZ911C 1 done first, it gets to be much more manageable, and we laid 2 that out. So we're just asking, your Honor -- we understand 3 you're not deciding it today, but at least to consider it -- 4 THE COURT: No, I -- 5 MR. WILLIAMSON: -- and allow us to advance that. 6 THE COURT: Believe me, I've considered it. 7 MR. WILLIAMSON: The second reason -- 8 THE COURT: I've read your letter. 9 MR. WILLIAMSON: Sorry. 10 THE COURT: I've read your letter. I think about it 11 too much of the day, actually, and it's very depressing at 12 times. 13 I think also what's it like to have a trial that mixes 14 together property claims and wrongful death claims and personal 15 injury claims; how does a jury separate all that? Do I need 16 two juries, three juries? Let's say it's one flight, and 17 that's a problem, and then if I mix flights. There's one set 18 of thoughts with regard to the Pentagon, there's another set of 19 thoughts with the World Trade Center. The prospects are 20 gaunting. 21 MR. WILLIAMSON: Understood. Our position is that our 22 clients are victims as well, and the same conduct is at issue 23 and we think it's doable, but obviously that will be up to you. 24 We did note in our letter as well the fact that this 25 is a limited fund situation, and until all of the available SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 72 73MZ911C 1 insurance is known, as we discussed earlier, and then all of 2 the claims that remain are liquidated, we won't be able to be, 3 in our view, making distributions from the limited fund in any 4 equitable way in any event. 5 THE COURT: Well, you've consented to that in regard 6 to settlements. 7 MR. WILLIAMSON: And explained this -- 8 THE COURT: I don't think it's any different with 9 regard to recoveries. 10 MR. WILLIAMSON: We do, and we explain that in my 11 letter. 12 THE COURT: Yeah, but I didn't -- I wasn't persuaded. 13 MR. WILLIAMSON: Well, we're just being very candid 14 with the Court up front and early on how this issue will play 15 out. 16 THE COURT: I'm not a bankruptcy court. 17 MR. WILLIAMSON: But, in fact, we are confronted with 18 a limited fund, and it's not supposed to be a race to who can 19 get there first or whether Mr. Migliori's having a good day so 20 he can have his trial first and we have to wait till second or 21 third; Mr. Clifford doesn't want to go first. 22 THE COURT: Or Mr. Barry and Mr -- 23 MR. WILLIAMSON: It's not supposed to happen that way. 24 THE COURT: Mr. Barry and Mr. Migliori told me that 25 the insurance situation with the Pentagon and flights -- and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 73 73MZ911C 1 the flight that went into the Pentagon is completely 2 independent of the insurance situation regarding the flights 3 into the World Trade Center. Is that true? 4 MR. WILLIAMSON: I heard that, and it could possibly 5 be true once we see all the policies as to some of the aviation 6 defendants. But take, for example, Boeing, which is yet to 7 produce its policy. Boeing, as we understand it, might have 8 separate coverage for all four flights or perhaps for one of 9 them. 10 THE COURT: Well, that's -- 11 MR. WILLIAMSON: We're not going to know yet. 12 THE COURT: Why don't we discuss this when the field 13 is known. 14 MR. WILLIAMSON: Fair enough. I just wanted to at 15 least advance the position of our clients and be sure that we 16 have a chance to be heard on it. 17 The last thought is, assume arguendo that we don't 18 persuade you and Mr. Migliori does the next time around, then 19 we would at least like to have our trial follow on the heels of 20 his if that were to be the case, so. 21 THE COURT: I have that in mind. 22 MR. WILLIAMSON: Okay. Thank you very much. We'll 23 defer the other thoughts, your Honor, then I think until you're 24 ready to consider it. 25 THE COURT: Mr. Migliori? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 74 73MZ911C 1 MR. WILLIAMSON: Thank you. 2 MR. MIGLIORI: I just -- if he goes second, that's my 3 trial too. We're in that case as well, and we'll work 4 together. 5 THE COURT: If I were ready to try, let's say, three 6 damage trials in July, would you be ready? 7 MR. BARRY: Depends on which ones they pick. 8 MR. MOTLEY: He wants us to pick. 9 THE COURT: I'll pick them. You can suggest them. 10 MR. BARRY: But he's already said that he's -- they 11 don't want to waive their claim for punitive damages. If 12 they're still going to go after punitive damages, they're not 13 damages only trials. 14 THE COURT: He can make a motion, can't he? 15 MR. BARRY: I can make a motion. I can make a motion 16 to dismiss the punitive damage claim. 17 THE COURT: Strike -- 18 MR. BARRY: Across the board. 19 THE COURT: Why don't you do it? 20 MR. BARRY: You're asking us to do that? 21 THE COURT: It's an issue. It's an issue that -- 22 seems to me it's a vital issue regarding settlement. 23 MR. BARRY: I'm sorry, your Honor? 24 THE COURT: It's a vital issue regarding settlement, 25 and it's a vital issue regarding trials. So, perhaps I need to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 75 73MZ911C 1 decide that. 2 MR. BARRY: It's a -- I've got a few other motions 3 that ticked off for you that I think we should be doing. I 4 know it's on right -- we're right about -- 5 THE COURT: Right below it. But just for the sake of 6 argument, if I were ready to try some damage trials, let's say 7 three damage trials in July, would you guys be ready? 8 MR. BARRY: We'd have to make the motion, have you 9 grant the motion -- 10 THE COURT: No, you don't. I can make it any time. I 11 can decide that in the course of trial, decide that in the 12 course of jury questions. I guess I can't. I have to decide 13 it beforehand. 14 MR. BARRY: You have -- 15 THE COURT: You're right. But we have lots of cases 16 that don't involve punitive damages. 17 MR. BARRY: We do? 18 THE COURT: Do we? 19 MR. BARRY: I think they all want punitives damages. 20 THE COURT: Well, all the cases. 21 MR. BARRY: I mean all the wrongful death and personal 22 injury cases. 23 MR. MIGLIORI: Each flight has different issues, each 24 state has different issues. Sometimes punitive damages are 25 provided for. Sometimes punitive damages are provided for in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 76 73MZ911C 1 law of policies won't cover them, so then it invokes the ATSSSA 2 limit of payment only out of coverages, so that it's a 3 complicated issue on punitive damages, and it's very specific 4 to each case. 5 THE COURT: Does New York have punitive damages? 6 MR. BARRY: Yes. But non-insurable. 7 THE COURT: And, therefore, your argument would be 8 that the federal law -- 9 MR. BARRY: Not recoverable. 10 THE COURT: -- precludes the recovery. 11 MR. BARRY: Absolutely. 12 THE COURT: I think I have to decide. Mr. Barry, 13 would you get together a briefing schedule on that issue? 14 MR. BARRY: Yes, your Honor. Yes. 15 THE COURT: What other issues are really important? 16 MR. BARRY: There's one issue that I think is critical 17 right now, and I know my colleagues in the aviation are -- will 18 recognize it as what we used to call a motion for an early 19 determination of applicable law. 20 Five and a half years after the fact, I can't call it 21 early, but I think we should be making a motion before your 22 Honor now to ask you to rule on what law is going to apply to 23 the liability of these defendants. That ruling will dictate 24 what standard of care these defendants are going to be held to 25 in any liability trial that ensues. We've got to start SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 77 73MZ911C 1 narrowing these issues, your Honor. At the moment we don't -- 2 THE COURT: In other words, you want me to decide that 3 state A is the choice law and not state B. 4 MR. BARRY: Or, or that federal law controls the 5 standard of care that the airlines were subject to for 6 security, or if you rule a combination of federal law and 7 common law, which trumps the other. It's something that I 8 think we have to start looking at now. 9 THE COURT: Isn't that kind of basic to, again, to 10 settlements and to trials? 11 MR. BARRY: Well, we haven't been looking at that when 12 we've been settling cases. We've looked only at the damage law 13 of each case. I'm talking about liability law. 14 THE COURT: And you've also presumed liability. 15 MR. BARRY: Well, for purposes of settlement, of 16 course. 17 THE COURT: Yeah, I'm saying -- 18 MR. BARRY: I mean. 19 THE COURT: But maybe that's why the settlements 20 haven't come as quickly as I've wanted them to come because 21 different lawyers have different conceptions of what -- 22 MR. BARRY: No, I don't think that's the case. I 23 think different lawyers have different conceptions about the 24 value of their case for compensatory damages. 25 THE COURT: Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 78 73MZ911C 1 MR. BARRY: But I think in terms of liability, if 2 we're going down this track that the plaintiffs have told you 3 they want, which is a trial on liability, the fact of when and 4 if the airlines are held to a certain standard of care, and the 5 security companies are held, that issue is going to dictate and 6 I think narrow the discovery. 7 THE COURT: Is it fact intensive? 8 MR. BARRY: That motion? Absolutely not. 9 THE COURT: So I don't need to know the facts. 10 MR. BARRY: Absolutely not. It involves conflicts of 11 laws and it involves federal preemption in this case. Those 12 are the two key prongs of the motion. 13 THE COURT: I think you should make it. 14 MR. BARRY: I think so too. 15 THE COURT: It seems to me that we can't go into trial 16 without having a clear idea of what are the criteria that are 17 different. 18 MR. BARRY: I don't think, Judge, we should be 19 continuing to go into the discovery that's been outlined today 20 until we know what that law is. 21 THE COURT: Yeah, you've lost that point. 22 MR. BARRY: Well, win some, lose some. 23 THE COURT: But these two motions are I think very 24 important and they need to be -- what other motions need to be 25 made? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 79 73MZ911C 1 MR. CLIFFORD: Double track discovery. 2 MR. BARRY: There's another issue, Judge, which 3 involves the 9/11 Commission Report, the aviation monographs, 4 all the government reports of this. 5 THE COURT: Mr. Clifford, go ahead. Double track. 6 MR. BARRY: He said go ahead. 7 MR. CLIFFORD: I'd like to, but it takes two to tango 8 just like anything else. 9 THE COURT: So get a schedule up. I mean, I don't 10 think the problem is one track or two tracks. The problem is 11 that there's two schedules, so make a more intensive schedule 12 and don't give into requests. 13 MR. CLIFFORD: Make a motion to compel. If they 14 waffle. 15 THE COURT: Well, give me a 2E letter. It's probably 16 better. Make a motion, make a motion. 17 MR. CLIFFORD: Okay, very good. We will. Thank you. 18 MR. BARRY: We're going to have to consider -- 19 THE COURT: There is a lot of lawyers in the room. 20 They like to work. Not the government lawyers. 21 MR. CLIFFORD: In fairness to them, they're already 22 working very hard, Judge. 23 THE COURT: Like me they get double time for extra 24 hours. 25 MR. BARRY: The other issue that I was mentioning, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 80 73MZ911C 1 your Honor, is the government reports that investigated -- the 2 results of the investigations into 9/11 were extremely 3 important. We've raised the issue with the plaintiffs trying 4 to work out with them whether or not, whether or not we can 5 agree on the admissibility of certain portions. 6 THE COURT: 803(8). 7 MR. BARRY: 803(8)(c). 8 THE COURT: That's going to be a very tough issue for 9 me, I guess, to decide. And that also has to be decided before 10 trial. I don't think you have the same quality of importance 11 as the other two motions that you raised. 12 MR. BARRY: I agree with that. 13 THE COURT: So -- 14 MR. BARRY: At the moment, at the moment on the time 15 frame -- 16 THE COURT: My suggestion is we have -- 17 MR. BARRY: I just raise it. 18 THE COURT: There are three motions that need to be 19 briefed, and for me to decide as quickly as possible; Mr. 20 Wayland's motion on whether or not it's relevant to take 21 depositions of people on information that was not communicated 22 to the actors, unless he comes up with such a restricted 23 schedule of witnesses that the motion becomes academic. That's 24 one. 25 The second is whether or not punitive damages may be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 81 73MZ911C 1 recovered. And the third is what choice of law as among 2 federal and various state laws are applied to the different 3 defendants case. 4 MR. BARRY: What you should determine that law to be. 5 THE COURT: Yes. 6 MR. BARRY: Correct, those three motions. 7 THE COURT: I think those three motions need -- they 8 need me to decide pretty quickly, because that will go into how 9 you evaluate substantive liability for settlements or for 10 trial. 11 MR. BARRY: Correct. 12 THE COURT: So I encourage you to come up with a 13 briefing schedule. 14 MR. BARRY: We will do that, your Honor. 15 THE COURT: And I would look forward to two briefing 16 schedules. One, Mr. Wayland's is independent of yours. 17 MR. BARRY: Mr. Wayland's is? 18 THE COURT: Mr. Wayland's motion is independent of 19 yours. 20 MR. BARRY: Correct. 21 THE COURT: Yes, I think. 22 MR. BARRY: There will be -- well, I think -- I think 23 we may be able to combine the determination of applicable law 24 and punitive damages in one. 25 THE COURT: I think I would like to act on that one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 82 73MZ911C 1 time and act on Mr. Wayland's motion. 2 MR. BARRY: We'll have two briefing schedules. 3 THE COURT: Mr. Wayland, I'd like yours to come first 4 because I think the amount of time I have to give the amount -- 5 MR. WAYLAND: Yes, your Honor. 6 THE COURT: -- amount of attention gives less. 7 MR. WAYLAND: I agree. I said I'd be ready with an 8 opening brief in 30 days. 9 MR. MIGLIORI: If I may, on the choice of law issues, 10 we haven't discussed this, but if the plaintiffs decide that 11 they want to raise a choice of law issue with respect to 12 damages of the particular case, because it would have the same 13 benefit doing that now, then we'd like to prepare a briefing 14 schedule if I can confer with them later. 15 THE COURT: I agree. 16 MR. MIGLIORI: Okay. 17 MR. BARRY: That's fine, your Honor. That's in 18 individual cases, though, right? 19 MR. MIGLIORI: Yes, or flights depending -- 20 THE COURT: Well, yes. 21 MR. BARRY: Yes. I mean we've got a couple of those. 22 We're doing some discovery in individual cases now on choice of 23 law issues totally. That's fine. 24 MS. GOLDMAN: Your Honor? 25 THE COURT: Ms. Goldman. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 83 73MZ911C 1 MS. GOLDMAN: We would suggest that Mr. Barry's last 2 point about the government reports may, in fact, be an issue 3 that would be beneficial to decide up front. Because one of 4 the issues we're finding on the government discovery is that 5 they are seeking discovery because they say they need 6 information that was in the Commission report. 7 THE COURT: Yes, I agree with you. 8 MS. GOLDMAN: So to the extent that that issue gets 9 decided, that may help on the discovery. 10 THE COURT: Yes, because it will avoid discovery. 11 MS. GOLDMAN: Exactly. So if that could be decided up 12 front as well, we think that would be advisable. 13 MR. BARRY: I only have a limited number of resources. 14 I think I learned that from you. 15 THE COURT: I think, Mr. Barry, the 803(8) issue is 16 worth pushing forward rather quickly because it will affect 17 discovery. 18 MR. MIGLIORI: If I may, your Honor, under 803, 19 though, it is specific to which facts in the report. There are 20 some very conclusory statements made, so it's very very hard to 21 say does the Commission report come in or the monograph come 22 in. They have to proffer which facts from that report, and 23 then redact everything that is not appropriate. So I don't 24 think -- although it would shorten discovery, and believe me 25 nobody wants that more than me, I don't think that's an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 84 73MZ911C 1 appropriate motion to bring right now. It is a pretrial issue, 2 and quite honestly it's going to be an issue fought throughout 3 the entire course of the trial itself. 4 MR. PODESTA: Your Honor, I actually agree with both 5 of the prior speakers. I think it would shorten discovery if 6 we could resolve the question of which portions of the 7 government reports are admissible and which are not. Because 8 if portions are ruled inadmissible, then the parties are going 9 to have to go to the original sources to get the facts, which 10 will greatly prolong discovery. 11 And I also agree with Mr. Migliori that there are 12 certain portions of the report that are really narrative 13 descriptions rather than findings. And I, what I would suggest 14 is that the plaintiffs -- we sit down with the plaintiffs and 15 see if we can reach some kind of agreement on -- they tell us 16 what they want to use, we tell them what we want to use, and if 17 we can reach agreement, then we only have to bring to you for 18 decision four points on which we disagree. 19 THE COURT: 803(8) provides records, reports, 20 statements or data compilations in any form of public offices 21 or agencies setting forth, C, in civil actions and proceedings 22 and against the government in criminal cases, factual findings 23 resulting from an investigation made pursuant to authority by 24 law, unless the sources of information or other circumstances 25 indicate lack of trustworthiness. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 85 73MZ911C 1 Mr. Podesta has a good suggestion. The report needs 2 to be marked up in terms of the factual findings that each side 3 wants to have the jury accept. Then I have to rule whether or 4 not it would be admissible. Practically speaking, Ms. Goldman, 5 we're not going to get simplicity in this and it won't be so 6 fast either. So although I sympathize greatly with your point, 7 I think it's not practicable. So let's leave it where we are, 8 those other three motions. 9 MR. BARRY: Fine, your Honor. 10 THE COURT: Anybody have anything to raise? I tired 11 us all out. 12 Mr. Moller's point of fees, which I received today. 13 Go ahead, Mr. Moller. 14 MR. MOLLER: Your Honor, we're in discussions with the 15 plaintiffs. I think that's all going to be worked out and we 16 can get a, I expect, a proposed order to you in short order. 17 If we can't work it out, we'll ask you to decide the motion. 18 THE COURT: Fine. Excellent. 19 Next -- anybody else have anything? 20 Next meeting. It seems to me that the next thing I'll 21 be doing is deciding the motions, and at that time I think I 22 should fix the next conference date. So with your permission, 23 we will not have another conference date set now. It will be 24 done at the time that I will send out notice of hearing. So 25 what I want Mr. Wayland to do and what I want Mr. Barry to do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 86 73MZ911C 1 is to propose two sets of briefing schedules to me, leaving the 2 argument dates blank. I'll set those argument dates with the 3 conversation with Mr. Moller and Mr. Barry and both, or 4 Mr. Moller and Mr. Wayland or anyone else of the -- 5 MR. MIGLIORI: To go back to the mediation, are we to 6 involve -- as we've extended this to May 10th for mediation, 7 are we to involve the Court as we've been recently doing or -- 8 THE COURT: I'm available to you, Mr. Migliori, but I 9 don't want to be involved unless there has been a very good 10 thorough discussion between sides and with a mediator. 11 MR. MIGLIORI: Okay. 12 THE COURT: I think I can be useful in bridging the 13 gap, but I've found that the expenditure of time and the result 14 was not worth its while in relationship to it, where there has 15 not been good preparation. 16 MR. MIGLIORI: We, for the record, found it to be very 17 helpful in certain circumstances, and we appreciate it. 18 THE COURT: I understand. I understand that 19 because -- well, maybe I should say a point at least. 20 One of my observations was that some of the plaintiffs 21 came in with different emotional complications and different 22 expectations about value. It was very difficult for them to 23 talk about value because, in a way it contradicted their most 24 basic emotions concerning their loss. And then when they did 25 come up with a value, it was very difficult for them to move SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 87 73MZ911C 1 from that value because it seemed that they were depreciating 2 the feelings they had again for their losses. 3 So I guess what Mr. Migliori said, he found it useful 4 that I was involved with them, it may be that the comments of 5 the judge were able to transmute some of those feelings into 6 the kinds of bargaining that goes on, but it was very difficult 7 and I found it hard to do; emotionally, I found it very hard to 8 do. 9 And then it ended up with a -- of course where there 10 were settlements, it was very good, and there was quite emotion 11 that went into it as well. But where there weren't 12 settlements, I found that the whole concept of the law was, in 13 a way, compromised. People come in thinking of justice in some 14 pure way and the acts of compromising in telling people they'll 15 be get this kind of a number, different things that might 16 happen in the courtroom or how the juries might react, I think 17 it tended to diminish the respect that some people felt for 18 law. It put me in a way of expressing things that I was not 19 happy to hear myself speak, and, in short, it was not a process 20 that I thought was consistent with the most important role I 21 have of being the Judge in the case and upholding the law. 22 So the relatively few positive results in proportion 23 to the work, and the feelings I had that I was depreciating a 24 certain degree of respect that goes into the notion of law, 25 made me feel that it was not something I wanted readily to do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 88 73MZ911C 1 again, unless there was much better preparation. It was just 2 very personal in terms of how I felt. I don't think I ever 3 expressed this to anyone, but that was what I was left with. 4 Now, that doesn't mean I won't do it again, because 5 it's very important that cases be resolved, and if they could 6 be resolved by agreement, I think it creates an enormous social 7 value to the people. It's very difficult I think for them or 8 many of them to live with their losses, and each time they're 9 forced to think about their case, they're brought right back 10 emotionally into the immediate aftermath of 9/11. Being able 11 to resolve a case, I imagine, must bring with it an enormous 12 emotional relief and release. And to the extent I can help 13 bring that about, I'm proud to do it. But where I can't, I 14 worry that I exacerbate the feelings, and I don't want to lend 15 myself to that. 16 I guess that's my speech on this, Mr. Migliori, so I'm 17 glad to help, but I really want to help and not hinder. 18 Anybody have anything else? Well, we have Easter and 19 Passover coming, so enjoy the holidays and I look forward to 20 our next meeting. 21 (Adjourned) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300