1 45CT911C Conference 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 IN RE: 4 SEPTEMBER 11 LITIGATION 21 MC 97 (AKH) 5 ------------------------------x 5 6 New York, N.Y. 6 May 12, 2004 7 4:15 p.m. 7 8 Before: 8 9 HON. ALVIN K. HELLERSTEIN, 9 10 District Judge 10 11 APPEARANCES 11 12 KREINDLER & KREINDLER 12 Attorneys for Plaintiffs 13 BY: MARC S. MOLLER 13 BRIAN J. ALEXANDER 14 14 BAUM HEDLUND 15 Attorneys for Plaintiffs 15 BY: JOHN A. GREAVES 16 16 SPEISER, KRAUSE, NOLAN & GRANITO 17 Attorneys for Plaintiffs 17 BY: FRANK H. GRANITO, III 18 JEANNE M. O'GRADY 18 19 MOTLEY, RICE, LLC 19 Attorneys for Plaintiffs 20 BY: DONALD MIGLIORI 20 21 UNITED STATES ATTORNEY'S OFFICE 21 BY: BETH E. GOLDMAN, AUSA 22 22 CONDON & FORSYTH 23 Attorneys for Defendant American Airlines 23 BY: DESMOND T. BARRY, JR. 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 45CT911C Conference 1 2 APPEARANCES (Continued) 3 DEBEVOISE & PLIMPTON 3 Attorneys for Defendant American Airlines 4 BY: ROGER E. PODESTA 4 5 FLEMMING, ZULACK & WILLIAMSON 5 Attorneys for Defendants Port Authority and WTCP 6 BY: RICHARD A. WILLIAMSON 6 M. BRADFORD STEIN 7 7 COZEN O'CONNOR 8 Attorneys for Defendant Tishman 8 BY: KRISTOFER A. LARSON 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 45CT911C Conference 1 (Case called) 2 THE COURT: I called this conference after I received 3 Mr. Barry's letter of May 5, Mr. Moller's response of May 6 and 4 Mr. Barry's reply of May 10. 5 The issue relates to the discovery that is requested 6 by the defendants in order to make the motion to dismiss, 7 namely the submission of a claim to the Victim Compensation 8 Fund evoking the waiver of provision against suit. And I 9 thought rather than try to deal with this, particularly in the 10 short time frame that we have until the date set for the 11 hearing of the motion, which is June 9, I thought to hear you. 12 I should also relate a conversation we had with the 13 Victim Compensation Fund regarding this issue because it cuts 14 through the arguments and counter arguments. It seems to me 15 that the most reliable indication of what was before the fund 16 would be the records of the fund, and I thought that the best 17 way to deal with the situation was to see if the fund would 18 make discovery, would make production of its files. They will. 19 Although that sets up some procedures that I think will be 20 required. There is probably a lot of confidential information 21 in those files that none of us particularly want to see. We 22 need a protective order procedure that will cause the redaction 23 of that information in order not to needlessly embarrass 24 people. 25 Second, the fund is going out of business on June 15. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 45CT911C Conference 1 At this time its personnel is scarce and we need to develop a 2 procedure that would recognize the administrative difficulties 3 that the fund has in its remaining days in business. 4 Third, I think you're going to need testimony as to 5 the procedures used by the fund in working with people. 6 Mr. Fineberg has been extremely accommodating in educating 7 everyone potentially eligible about the way the fund works and 8 has invited all kinds of meetings and informal submissions. 9 And those submissions have sometimes caused people to decide 10 that they would prefer to sue at law; more often than not 11 they've persuaded people that, everything taken into 12 consideration, a formal claim to the fund would be appropriate. 13 And the fund has developed particular procedures and forms to 14 use for the submission of claims. 15 There is no record that I know of with regard to those 16 procedures. And I thought for the interests of the parties in 17 the litigation and for the historical record it would be useful 18 to have such testimony. So I've done all that, and I want to 19 spread it on the record so all of you would know it and we 20 could consider it and decide if that was the most intelligent 21 way to proceed. 22 Let me recess for a few minutes and you can talk among 23 yourselves and we can have a response. 24 MR. BARRY: I would give the plaintiffs some time, but 25 I think on behalf of the defendants those suggestions that you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 45CT911C Conference 1 just articulated are perfectly satisfactory. We're interested 2 only in getting the information, the basic information that we 3 need at this stage to know whether we have viable motions to 4 dismiss. And there are issues that we're not interested, 5 certainly at this stage of the proceedings, in any sort of 6 damage information or amounts of collateral source or anything 7 like that, we're interested in whether these applications were 8 substantially complete. 9 THE COURT: Mr. Moller? 10 MR. MOLLER: Given what Mr. Barry says, your Honor, 11 about wanting to know whether or not a file was substantially 12 complete or not seems to me to be resolved by finding out 13 whether the special master in fact determined they were 14 substantially complete all within the context of your order of 15 December 19th, '03, which said in effect if you were 16 substantially completed by before the 22nd or actively 17 litigating on the 22nd, your rights would be determined to 18 litigate or go to the VCF. 19 I am frankly bewildered by what else is really needed 20 to determine whether somebody has filed sufficient with the VCF 21 for that to constitute a waiver. I'm not carrying the water 22 for the individual plaintiffs in the case, my analysis is 23 conceptual. The statute which discusses waiver talks about 24 submission, and in your order of the 19th of December you 25 wisely used the words filed and submitted, referring to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 45CT911C Conference 1 December 22, because the statute uses the two words in 2 different places. If somebody was not substantially completed, 3 they really didn't step into the fund sufficiently to waive 4 their right. That's the way we read your order of the 19th of 5 December and the way we read the fund. 6 You are absolutely correct that there were extensive 7 informal discussions that people had with the fund. We did as 8 well; my firm and my partners had informal discussions as we 9 explored the viability of the Victim Compensation Fund options 10 for our client. Didn't mean that we had filed within the 11 context of the statute sufficient to waive, it was precisely 12 because we were invited by Mr. Fineberg to use this informal 13 vehicle to help us gain confidence in the fund process. And it 14 worked, because now you have 98.5 percent of the people in the 15 fund who are eligible to go in. If someone isn't substantially 16 completed, whatever they gave to the fund is irrelevant to an 17 analysis of the waiver. 18 I would agree that the record would be helped in that 19 regard if the special master elaborated on what substantial 20 completion means, because he is the one who is interpreting the 21 regulations of the statute from which we're all taking 22 guidance. 23 I think the problem that the people who are objecting 24 to the wholesale disclosure of their VCF filing is there's a 25 lot of confidential information in there, and other than tax SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 45CT911C Conference 1 returns, which are ultimately available to everybody, 2 representations or discussions or submissions, collateral 3 source information may have been disclosed, all of which the 4 defendants would not be entitled to in the litigation context, 5 but the fund was entitled to receive. 6 So I think it's not as big an issue as the defendants 7 make it out to be, all taking guidance on our side from your 8 order of the 19th of December. 9 THE COURT: Mr. Barry? 10 MR. BARRY: Your Honor, I know Mr. Williamson wants to 11 address this point as well, and he certainly will in a second, 12 but it's not just the issue of substantial completion, there 13 are issues of whether the proper party personal representative 14 brought the litigation or filed with the fund. There are 15 issues involved, based on what we've seen so far, that raise, 16 in our mind, the standing issues, proper party issues, et 17 cetera. 18 As I've said in my opening remarks, we're not 19 interested in getting into all the confidential information 20 that Mr. Moller is concerned about. So he's right, it's pretty 21 simple stuff we're looking for, but we need that confirmation 22 from the source of the best evidence to see whether or not it's 23 true. 24 And I think Mr. Williamson -- 25 THE COURT: I want to make two remarks before hearing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 45CT911C Conference 1 from Mr. Williamson and anyone else. 2 First, there are some claims, for example, the 3 Pocasangre claim, that will involve us in an intra-family 4 dispute; namely one person claiming to be a legal successor 5 makes claim to the fund while another person claiming to be a 6 legal successor chooses to sue. And those kinds of issues, and 7 I don't know how many cases there are that involve those 8 issues, raise further complications that I think should be 9 dealt with separately. And I gather that Mr. Barry and the 10 plaintiffs' attorney may think that way as well, and they 11 stipulated to a separate schedule, and I've so ordered that. 12 That's one aspect. 13 The second aspect is because of the administrative 14 difficulties that the Victim Compensation Fund staff has in its 15 last days, it's difficult for them to make a cut with regard to 16 the records they have. They have kept everything that has been 17 submitted to them, and they have distinctions, but the 18 distinctions that they have, indeed the distinction that I have 19 and that Mr. Moller just alluded to, may be correct or may be 20 incorrect, what is needed now to enable all or one to raise 21 this motion to have a proper record. 22 Because of this, it's administratively difficult for 23 the Victim Compensation Fund staff to devote the time to cause 24 redactions to be made, to decide which records should be 25 produced and which should not be produced. I wanted to suggest SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 45CT911C Conference 1 a procedure, subject to further argument, where they produced 2 the entire records, entire set of records they had 3 electronically with regard to all the plaintiffs who are 4 identified, there are about 50 in number involved in these 5 motions, in a procedure that will cause a redaction to be made 6 in each of those records speedily, because I think there is 7 little time left, and without fear of embarrassment. The only 8 items that I think should be withheld are internal memoranda 9 and valuations by the Victim Compensation Fund staff, they need 10 not be produced, but everything else should. 11 And I wanted to suggest that a procedure should 12 perhaps require production to be made on an early date to 13 Mr. Barry, who would appoint a custodian charged with 14 collecting all the records and making them available only to 15 plaintiffs who would have a limited number of days to cause 16 redactions to be made. The custodian, following such 17 redactions, would then be charged with the obligation to 18 distribute all those documents as redacted to all counsel who 19 have a need for such. 20 I think I serve the interest of administrative 21 convenience for the staff of the fund, the desire of defendants 22 to have the availability of the full set of records so they can 23 create a record in support of their motion and to make whatever 24 evaluations they need to make, and the legitimate need of the 25 claimants and the families of the claimants for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 45CT911C Conference 1 confidentiality. 2 I don't think, Mr. Moller, your arguments, much as I 3 may agree with them, are germane to the issue, because I've 4 been reversed enough times to know that what I think is right 5 may not eventually be right, and my first job is to let those 6 that want to make a motion to make an appropriate record. 7 With regard to the deposition I envision, I think that 8 should be supervised by the Magistrate Judge Katz who has 9 familiarity and has matters coming up on 9/11 cases, and the 10 deposition can go forward before him. I don't know that he 11 needs to supervise every moment of the deposition, but he will 12 be the one to judge. I envision that not more than a day 13 should be involved in that deposition, because I am very wary 14 of making too much of an inroad into the necessary work that 15 they have to do. They have a lot of work to do. And I think 16 all of this needs to be done in a very rapid time frame, 17 because if plaintiffs find that they have waived and they can 18 still be accommodated by Mr. Fineberg, I want the time to put 19 this before him. That is the rest of the information that I 20 wanted to put before you. 21 The only thing that I haven't touched on might be what 22 might be a briefing schedule. I can do that as well. As you 23 can, see we've done a little bit of thinking about it. I will 24 propose as follows: Going back from the end, argument date is 25 June 9, all motions that wish to be filed must be filed by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 45CT911C Conference 1 May 17, all oppositions by May 31, all replies by June 7. 2 And these are the schedules in place, so production 3 must be made very, quickly, the answers have to be made very 4 quickly, and I think a three-day period should be what is 5 required. Then a date for deposition should be fixed, taking 6 into consideration the conveniences of whoever is the 7 appropriate person of the Victim Compensation Fund and the 8 schedules. 9 I'm sorry to have interrupted, Mr. Williamson wanted 10 to speak 11 MR. WILLIAMSON: Thank you, your Honor, because it was 12 worthwhile, because some of the comments I was about to make 13 are moot. 14 But just a few thoughts; one is with respect to the 15 internal memoranda and notations regarding valuations. If I 16 heard you correctly, the VCF I think, at least speaking for our 17 clients, we haven't had a chance to confer with all the defense 18 counsel, but with respect to valuations that may have been 19 contemplated, we wouldn't have a problem with that not being 20 produced. 21 With regard to internal memoranda of the VCF staff or 22 Mr. Fineberg himself, it would seem to us that that should fall 23 into the category of being produced subject to possible 24 redaction. 25 THE COURT: It's going to be subject to client SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 45CT911C Conference 1 privilege and would hold the privilege, it's a normal privilege 2 in an agency that their internal evaluations and memoranda are 3 withheld from the motion, both under the Freedom of Information 4 Act and with regard to discovery. We don't have time to 5 litigate those issues. 6 MR. WILLIAMSON: My only proposal was that the 7 valuations be withheld, that the internal memoranda fall into 8 the category of being produced subject to seeing if they need 9 to be redacted and should be redacted. 10 THE COURT: Well, the agency is not going to deliver 11 it up, and I'm not going to make them, and I'm going to deny 12 your motion. 13 MR. WILLIAMSON: The next issue, your Honor, was -- 14 THE COURT: Have in mind that the procedure, as I 15 understand it, involved a declaration by the fund to the 16 claimant with regard to the completion of the claim. And I 17 think when you get the correspondence, you may find this moot. 18 MR. WILLIAMSON: You may well be right. 19 The second point drives off of what your Honor just 20 said, is that with respect to the procedure for redactions, as 21 I understood it, it would be first produced to Mr. Barry, and 22 then before reviewing it, I guess, he would make it available 23 to plaintiff's counsel in electronic form and they could make 24 redactions, if I understood that correctly. 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 45CT911C Conference 1 MR. WILLIAMSON: I would like to propose a slight 2 amendment to that, and note in doing so that heretofore there 3 haven't been any redactions, there hasn't been any problems 4 producing the documents that have been produced, to my 5 knowledge; certainly nothing that we got was redacted, I don't 6 know about other defendants. But still, no problem with 7 redactions, as Mr. Barry's first and second letter said. 8 However, to then place it in the hands of plaintiffs' 9 lawyers, who as you can see are trying to define what our 10 motion should be before we've made it, does give some concern. 11 Perhaps the procedure that could be used would be for them to 12 propose redactions to see if they really need to have anything 13 redacted, and we could agree with them in advance, as we have 14 already tried to do, we have no problem with being redacted, 15 then have Magistrate Judge Katz, if there is real a question 16 about it, that they want to redact more. 17 THE COURT: Mr. Moller, would you agree to a protocol 18 for redaction? 19 MR. MOLLER: If forced to agree to a protocol for 20 redaction, the answer is yes, but I think we should leave it 21 the plaintiffs' counsel. It's going to be cumbersome in too 22 short a period of time. 23 THE COURT: I agree with you, Mr. Moller, I don't 24 believe there's any games that can be played. 25 MR. WILLIAMSON: I could give your Honor chapter and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 45CT911C Conference 1 verse. 2 THE COURT: Don't. Go ahead. 3 MR. WILLIAMSON: It's already happened. We served our 4 request, your Honor so ordered it, then we got certain 5 plaintiff's counsel send us one piece of paper and say that's 6 it, but then if you read that letter it refers to another 7 letter. So I pick up the phone, I say where is the other 8 letter? 9 THE COURT: Mr. Williamson, I think there is very 10 little time. Plaintiffs need time because they face the risk 11 of being frozen out, so they must leave themselves time to see 12 what they need to do if I should grant any motions. If they 13 take up the time or put themselves in a position where others 14 can take up the time by preliminary sparring, there won't be 15 time to do this. 16 MR. WILLIAMSON: I understand. 17 THE COURT: The second thing is there are regulatory 18 formats regarding what has to be followed. There's an 19 eligibility form prescribed in 28 CFR Section 104.21, a 20 personal injury compensation form and a death compensation form 21 all in that section and in the following section. 22 The information that is submitted has to be on those 23 forms in order to constitute a claim. The determinations made 24 by the special master as to completeness and as to substantive 25 end is in relationship to those forms. I think there is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 45CT911C Conference 1 protocol in place as to what can be covered up and what can't 2 be, and I'm going to let Mr. Moller and his colleagues do their 3 work, and I think they can understand the seriousness in which 4 I regard this and have the discipline to avoid improper 5 redactions. 6 MR. WILLIAMSON: But we'll never know. 7 THE COURT: One way or another, we'll know, 8 Mr. Williamson. That's my ruling. 9 MR. WILLIAMSON: Any chance I could convince you to 10 let Mr. Barry participate with them or some third party? 11 THE COURT: No. The very nature of the process is 12 that this can be potentially extremely embarrassing to people 13 who lost their lives and their loved ones and a display a great 14 deal about themselves in the applications. It will be open in 15 the first instance only to plaintiff's lawyers. 16 MR. PODESTA: Your Honor, Roger Podesta from American 17 Airlines. One comment with respect to the VCF memos. I 18 understand your Honor's rulings to the memos, but I would like 19 to request an exception be made for VCF memos that address the 20 issue of substantial completeness. 21 Let's say, for example, the eligibility form appears 22 to be complete, the wrongful death compensation form was 23 lacking the following items, I think those would be directly 24 germane to the issues being raised by the motion. And while 25 the agency may or may not have privilege, it is generally the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 45CT911C Conference 1 agency's responsibility to claim the privilege in the first 2 instance. And I don't know whether the VCF would claim the 3 privilege as to those very narrow items indicating whether or 4 not the VCF thought forms were substantial and complete, if 5 not, what they were lacking. 6 THE COURT: Mr. Podesta, since correspondence to 7 claimants and counsel have to be produced and correspondence 8 from claimants and counsel have to be produced and 9 correspondence with judges, third parties, outsiders having to 10 do with claims have to be produced, I think your concerns are 11 satisfied. What I'm holding back are the internal memoranda 12 and valuations made by one member of the staff to another 13 member of the staff. I'm not going to order those to be 14 produced. 15 MR. PODESTA: One other point with respect to the 16 redactions, I appreciate it if the Court would give some 17 guidance to the plaintiffs' lawyers to what they're permitted 18 to redact. 19 As I understand it, they're permitted to redact 20 confidential information, for example on collateral sources, as 21 to what the amount of the collateral sources were and perhaps 22 the types, but they should not be permitted to make redactions 23 so broad, for example, as to frustrate us in learning that 24 collateral source information was submitted. 25 And similarly on -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 45CT911C Conference 1 THE COURT: Why do you need to know that, Mr. Podesta? 2 MR. PODESTA: Because we believe it's one element that 3 goes to the issue of whether complete forms were submitted. 4 THE COURT: So you need to know actually -- 5 MR. PODESTA: The types of information. 6 THE COURT: -- the types of information that were 7 submitted. 8 I think Mr. Podesta makes a good point, Mr. Moller. I 9 think both Mr. Williamson and Mr. Podesta cause me to say this: 10 I think your interest is preserving the substantive information 11 of that which was disclosed but not that there were aspects of 12 information that were disclosed. And I think protocol would be 13 appropriate. I think you need to identify that which you have 14 redacted. 15 MR. MOLLER: That can be done, your Honor, but as I 16 listen to the argument, the requests being made to the Court, 17 it becomes crystal clear that what the defendants want to find 18 out is whether the special master was justified in a ruling 19 that something was or was not substantially completed. It's 20 not going to be their role to invade the agency and substitute 21 their belief about substantial completion for one the special 22 master has. 23 THE COURT: I don't want to make substantive rulings 24 now. The fewer substantive rulings I make now, the better the 25 record will be. I want a good record, and my rulings now are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 45CT911C Conference 1 lined with creating opportunities for the record and not making 2 judgments about what is claimed, what is not claimed, what was 3 waived, what was not waived. So I may agree with you, but it's 4 not relevant to my consideration. 5 MR. MOLLER: May I ask for a little sharpening for 6 what this protocol is going to be? I understand that it's your 7 suggestion -- 8 THE COURT: I want the defendants to know what is 9 being redacted. 10 MR. MOLLER: That's fine, I have that. The VCF will 11 be asked to produce electronically to Mr. Barry its file in a 12 given case and then he gives it to a custodian? 13 THE COURT: I want him to appoint a responsible person 14 in his firm who will be responsible for collecting this 15 information, not sharing it with anyone else in the firm, but 16 sharing it only with the plaintiffs until they have made their 17 redactions. 18 MR. MOLLER: If it's all right with the Court, I 19 suggest that Mr. Barry and I select the custodian to be 20 responsible to the confidentiality, subject to its redaction by 21 counsel. 22 THE COURT: I think that would be appropriate. 23 MR. MOLLER: I think plaintiffs would be more 24 comfortable if there two hands on the wheel. 25 THE COURT: Is that all right, Mr. Barry? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 45CT911C Conference 1 MR. BARRY: I have no problem with that, your Honor. 2 MR. PODESTA: Your Honor, one other thing, or two 3 things. On the issue of redactions, if there were a question 4 about redactions and whether they were appropriate, should we 5 take that to Magistrate Katz? 6 THE COURT: Try me first. 7 MR. PODESTA: Secondly, the deposition that you've 8 been indicating -- 9 THE COURT: I think Mr. Lake and I have enough 10 familiarity to deal with this pretty quickly, and we'll try to 11 be available for you. 12 MR. PODESTA: Secondly, the deposition that we've been 13 talking about, is that a deposition of the special master 14 himself or one of his deputies? 15 THE COURT: Presumably one of the members of his 16 staff. 17 MR. PODESTA: Thank you, your Honor. 18 MR. MOLLER: How is that deponent going to be 19 identified? Is that going to be our responsibility? Does the 20 Court intend to do it? Is there a reservation as to whether a 21 deposition in fact be needed? Is there a time frame for the 22 deposition? 23 THE COURT: I think the deposition would be useful to 24 everybody because there is no record now other than the 25 regulations as to what was actually done. And if a motion is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 45CT911C Conference 1 going to be made, it's going to need to have this information. 2 Second, I think it has to be done very quickly, so the 3 motion has to be filed by May 17. We're already too late. 4 Perhaps next week or the week after. We'll put Mr. Moller and 5 Mr. Barry's representatives of all plaintiffs and all 6 defendants in touch with a member of the staff and you will 7 work out a date with that person and with Judge Katz and 8 conduct a one-day deposition. 9 MR. MOLLER: Let me take the opportunity to define the 10 scope of the deposition. Is the deposition to be focused on 11 each individual claim? 12 THE COURT: No, I don't think so. But you may need to 13 do that. I don't know. I envision it really as to procedures 14 that we request. Let me put it this way: Take the deposition 15 to the procedures that were utilized, you could probably do 16 that in a couple of hours, then perhaps you should recess until 17 you've gone through all the paper, and if there are specific 18 issues that need to be made the subject of questioning, I think 19 you should bring that issue to me and I'll rule on it. 20 I don't have all the answers, it's hard to envision 21 all the wrinkles that will come up, but it will be a dynamic 22 process of a participating. 23 Anything else? 24 MR. BARRY: One other item, your Honor, of a 25 housekeeping nature, the supplemental case management order -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 45CT911C Conference 1 THE COURT: We'll issue an order on this tomorrow and 2 we'll go forward from there. 3 MR. BARRY: Supplemental case management order that is 4 currently in effect calls for the filing of cross-claims, 5 third-party complaints by June 1. I have spoken with 6 Mr. Moller, we have agreed with ourselves to extend that on 7 behalf of all defendants and plaintiffs to December 1, if 8 that's agreeable with the Court. 9 THE COURT: It is. It is agreeable. 10 MR. BARRY: And we will submit an order to that 11 effect, your Honor. 12 THE COURT: How are we going on discovery? 13 MR. BARRY: Slowly. 14 THE COURT: I ask Ms. Goldman in the back. 15 MS. GOLDMAN: That's the down side of coming to these. 16 I think the answer is slowly. We produced one 17 substitute. Talking to Mr. Moller before the conference, it's 18 not clear that plaintiffs received it, but we'll check on that 19 when we get back, but we thought they had it last week, and 20 there are additional substitutes that the TSA is working on. 21 THE COURT: So you're making slow progress? 22 MS. GOLDMAN: Slow progress. We would like to 23 continue doing what we're doing, and we have suggested to 24 Mr. Moller that we be given the opportunity to continue doing 25 that right now. Our deadline for final order is this Friday, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 45CT911C Conference 1 the 14th, and we would like to put that off so that we could 2 continue this process. 3 THE COURT: I'll agree to that. 4 MS. GOLDMAN: Thank you. 5 THE COURT: Anything else from anybody? 6 Thanks very much. 7 o0o 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