1 65CVSEPC Conference 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 IN RE: SEPTEMBER 11th 21 MC 101 4 PROPERTY DAMAGE AND BUSINESS 21 MC 97 5 LOSS LITIGATION, 6 ------------------------------x 6 New York, N.Y. 7 May 12, 2006 7 2:20 p.m. 8 8 Before: 9 9 HON. ALVIN K. HELLERSTEIN, 10 10 District Judge 11 11 APPEARANCES 12 FOR THE PLAINTIFFS: 12 13 CLIFFORD LAW FIRM 13 ROBERT A. CLIFFORD 14 THOMAS TOMASIK 14 15 LAW OFFICE OF GREGORY JOSEPH 15 GREGORY JOSEPH 16 16 MOTLEY RICE 17 RONALD L. MOTLEY 17 DONALD A. MIGLIORI 18 18 SPEISER KRAUSE NOLAN & GRANITO 19 FRANK H. GRANITO, JR. 19 FRANK H. GRANITO, III 20 20 KREINDLER & KREINDLER 21 MARC S. MOLLER 21 BRIAN ALEXANDER 22 23 WARDEN TRIPLETT GRIER 23 MICHAEL J. KUCKELMAN 24 24 25 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 65CVSEPC Conference 1 APPEARANCES (Cont.) 2 FOR THE PLAINTIFFS: 3 BAUMEISTER & SAMUELS 3 DOUGLAS A. LATTO 4 4 NICOLETTI GONSON & SPINNER 5 EDWARD S. BENSON 5 6 AZRAEL GANN & FRANZ 6 JONATHAN AZRAEL 7 8 FOR THE DEFENDANTS: 8 9 SCHIFF HARDIN 9 BETH D. JACOB 10 10 FLEMMING ZULACK WILLIAMSON ZAUDERER 11 RICHARD A. WILLIAMSON 11 M. BRADFORD STEIN 12 12 U.S. DEPARTMENT OF JUSTICE 13 BETH E. GOLDMAN 13 SARAH NORMAND 14 14 SIMPSON THACHER & BARTLETT 15 JOSEPH F. WAYLAND 15 16 QUIRK & BAKALOR 16 JEFFREY J. ELLIS 17 17 CONDON & FORSYTH 18 DESMOND T. BARRY, JR. 18 19 SUSMAN GODFREY 19 CHARLES R. ESKRIDGE III 20 20 DEBEVOISE & PLIMPTON 21 ROGER E. PODESTA 21 22 GOODWIN PROCTOR 22 CHRISTOPHER D. MOORE 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 65CVSEPC Conference 1 (In the ceremonial courtroom) 2 THE COURT: Mr. Moller, would you report on the status 3 of settlement proceedings and mediation proceedings. 4 MR. MOLLER: Your Honor, can I defer to Mr. Barry -- 5 THE COURT: Yes. 6 MR. MOLLER: -- who has the numbers and the parties? 7 THE COURT: Mr. Barry. 8 MR. BARRY: Thank you, your Honor. As of today, we've 9 settled 27 wrongful death cases, leaving 69 open claims in 64 10 different lawsuits. We have 20 settlement offers outstanding 11 at the moment, against which we're waiting responses. There 12 have been no further mediations scheduled, pending our receipt 13 of those responses. 14 THE COURT: Is there any prognosis of time for 15 Ms. Birnbaum conducting further negotiations? 16 MR. BARRY: Prognosis of time I would say will depend 17 on what response we get to the outstanding offers. I would 18 say -- we've been going at this since March. I would say in 19 order for us to mediate the remaining cases it would take at 20 least another two months, if not three, in order to get through 21 each of the remaining cases. 22 THE COURT: If there are positive responses to the 20 23 outstanding offers -- so you really don't know. If there are 24 none, the proceedings are over; if there are some, whatever 25 time is required to pursue those. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 65CVSEPC Conference 1 MR. BARRY: That's correct, your Honor. 2 THE COURT: All right. Thank you. 3 MR. BARRY: Thank you. 4 THE COURT: I think the record should reflect the 5 extraordinary efforts and successful efforts that Ms. Birnbaum 6 took to help settle 27 cases with the prospect of more to come. 7 I add up 27 and 20, the sum of which is 47, and I think you 8 said there's 69 total claims that are outstanding. 9 MR. BARRY: Yes, your Honor. That would be 49 if you 10 subtract the 20 offers that are in there. 11 THE COURT: It's also, as I recall, individual claims. 12 I think most of the claims that have been settled are those 13 that were brought by a single lawyer with multiple lawsuits. 14 MR. BARRY: Correct, your Honor. 15 THE COURT: And I remember there were some counsel who 16 had one or two clients who wanted to participate in the 17 mediation efforts. But we deferred their participation till we 18 saw how it went for groups. 19 MR. BARRY: That's correct, your Honor. Most of the 20 claims that are represented by single lawyers rather than law 21 firms involve personal injury cases, too, where there's been 22 very little information exchanged or discovery in respect of 23 the nature of the injuries claimed. So I would say at this 24 stage that the wrongful death cases are more ready for 25 mediation than the personal injury cases. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 65CVSEPC Conference 1 THE COURT: Why haven't the personal injury claims 2 progressed? 3 MR. BARRY: Well, because I think, number one, our 4 attention has been focused primarily on the larger groups of 5 cases; and number two, the discovery that we have conducted in 6 both the death cases and to a lesser extent in the personal 7 injury cases, has been of an informal nature. 8 So while we've gotten some medical reports in on the 9 personal injury cases, I think there's a lot more that has to 10 be done with that. But we certainly are ready to talk to them, 11 your Honor. 12 THE COURT: There's a large number of them? 13 MR. BARRY: No, no. A handful. Less than ten. 14 THE COURT: Is there anyone representing those cases 15 here? 16 MR. MIGLIORI: Don Migliori from Motley Rice. We do 17 have three or four actually injury cases as part of our group 18 of 53. And we've provided -- best of my knowledge, we've 19 provided -- 20 MR. BARRY: Those cases are more serious than others. 21 But the judge is talking about single lawyers representing 22 individuals. 23 MR. MIGLIORI: Right. 24 MR. BARRY: I can tell you, Judge, there's seven -- 25 six single case where single lawyers represent them, and two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 65CVSEPC Conference 1 pro se. We've got eight. 2 THE COURT: Well, what should I do? What can you do 3 to find out if those cases are going to progress or not? If 4 they're going to progress, they need to progress; and if 5 they're not, we should dismiss them. 6 MR. BARRY: Why don't I take it upon myself and on 7 behalf of the aviation defendants to write a letter to each of 8 those lawyers telling them that we are prepared to sit down 9 with them and discuss their cases. And if there is 10 outstanding -- our outstanding request for information, that 11 they need to comply with that, and try and do it that way and 12 let them know what your views are. 13 THE COURT: So it doesn't seem that you are anxious to 14 settle those, because I don't think you are telling me that. I 15 think the way to do that is to say that I've asked you to 16 inquire of those cases, why they have not described their 17 damages in sufficient detail for you to evaluate them. And if 18 they have, are they interested in proceeding to some kind of 19 resolution. But at the next reporting date if there is no 20 progress in those cases, I'd like to entertain a motion to 21 dismiss them for failure to prosecute. 22 MR. BARRY: I'll do just that, your Honor. 23 THE COURT: They need to put those in a different kind 24 of posture. Mr. Lorez told us that these cases are ready for 25 discussion. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 65CVSEPC Conference 1 MR. BARRY: He's got some serious personal injury 2 cases arising out of Flight 77. 3 THE COURT: I think even at the same time as the 4 discussions go on with the wrongful death actions, if you could 5 open some discussions with the individual plaintiffs 6 represented by individual lawyers in personal injury cases, 7 that would be very useful. 8 MR. BARRY: Yes. And I think Ms. Birnbaum has 9 indicated her willingness to participate in that, as well. 10 THE COURT: All right. Thank you very much, 11 Mr. Barry. I know Mr. Clifford is here. 12 MR. CLIFFORD: Yes, your Honor. 13 THE COURT: Good afternoon, Mr. Clifford. 14 MR. CLIFFORD: Good afternoon, sir. 15 THE COURT: You're waiting expectantly for your turn, 16 I assume? 17 MR. CLIFFORD: Court's pleasure. 18 THE COURT: Yes. All right. Let's see where we go 19 with the personal injury cases. 20 I have in mind that they will not go on forever in 21 this posture. If we reach a point where there seems to be an 22 inability to progress with the mediation of settlement of those 23 claims, I think we need to address the status that you have 24 with your claims. 25 MR. CLIFFORD: Okay, sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 65CVSEPC Conference 1 THE COURT: Okay. Thank you. I think I'm ready to 2 move into the second part of the agenda. Is there someone who 3 wishes to say something more on the first part? You also might 4 check with some of your colleagues on the personal injury 5 claims. Their absence from these proceedings is not a very 6 useful sign to them. David Tolchin. 7 MR. TOLCHIN: Your Honor, I'm here. 8 THE COURT: Why are you silent, Mr. Tolchin? 9 MR. TOLCHIN: I'm trying to figure out if you are 10 talking about people who are injured weeks and months after 11 9/11. 12 THE COURT: I think the answer is no. 13 MR. TOLCHIN: Okay. 14 THE COURT: Those are in a different category. Most 15 of the cases in that category are respiratory injury cases. 16 But there are a handful of personal injury cases in the cleanup 17 efforts. Where do you stand? 18 MR. TOLCHIN: I have two personal injury 19 nonrespiratory cases. And the motion is to remand. 20 THE COURT: We have in the works ability and effort to 21 understand the jurisdictional issues in that case. And we are 22 almost ready with our decision on the insurance status in the 23 dispute between the Silverstein interests and the insurers in 24 terms of a duty to defend. And as soon as we finish with that, 25 we can turn our attention to dealing with the jurisdictional SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 65CVSEPC Conference 1 issues involving your cases. 2 MR. TOLCHIN: Thank you. 3 THE COURT: But I was thinking of those who suffered 4 personal injuries on 9/11. That class that Mr. Migliori stands 5 up about. And I'm surprised that there's no one here 6 representing others in the group. I note that there was some 7 very serious burn injuries. Not too many, but some. There may 8 have been other injuries. I don't know the degree of 9 seriousness or lack of seriousness. I just want it to be known 10 that those cases will not be allowed to linger. 11 All right. We're now up to item 2. Deposition 12 protocol for conducting same. TSA objections and times and 13 places of depositions. 14 I've had the benefit of exchanges of letters following 15 conferences, conferences occurring among the TSA, the 16 plaintiffs groups, and defendants groups, and the letters 17 coming from the defendants, from the plaintiffs, and from TSA. 18 I've read those carefully. 19 I've also reviewed my two orders dealing with this 20 issue, and we will issue another order in very short time. I 21 can tell you how we'll decide it. 22 First the comment of counsel for the TSA that 23 confusion reigns, and the orders that I issued have been 24 "interpreted in widely diverse ways." In my judgment, it is 25 not a fair description of what happens or what has happened or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 65CVSEPC Conference 1 what I ordered. 2 There is no confusion in my mind. Those depositions 3 will go forward. They will go forward as required by Rule 30 4 of the Federal Rules of Civil Procedure. The protocol was that 5 which we described, which I described in my two former orders, 6 and they will proceed in that way. Unless there is some 7 confusion, I don't think there is any, we'll issue one more 8 order that clarifies the math. I hope that comes out on Monday 9 or Tuesday. 10 I'd like to set a date for those depositions. I can 11 tell you there's been one change. The depositions are 30(b)(6) 12 depositions, according to the notice. I don't think it's a 13 useful idea to have 30(b)(6) depositions, because as defendants 14 point out, that requires the witnesses to learn much 15 information beyond that to which they were privy. 16 And it's my purpose to have witnesses testify as to 17 what they know. So the witnesses will be examined according to 18 their personal knowledge and whatever documents they authored, 19 issued or reviewed. But not as to the documents at which they 20 did not have direct knowledge. That will increase the number 21 of witnesses, but it will ease the problem of SSI. 22 I don't know that there's much more in the way of 23 preparation that will be required. I think there will be less. 24 And it's my idea that those depositions could begin on May 30, 25 give or take a week. And I would so order, but I don't want to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 65CVSEPC Conference 1 do that without hearing first from Mr. Moller on behalf of the 2 plaintiffs, and Mr. Barry on behalf of the defendants. 3 MR. MOLLER: I'm glad to hear that we can proceed with 4 the depositions in accordance with your order of March 31 and 5 April 5th. And I would think that we can start the depositions 6 during the second week in June, provided that we have the 7 identification and resolve precisely who the witnesses will be 8 so that we can cull the relevant documents and design the 9 deposition now to accommodate the Court's intent. 10 THE COURT: So you wish to proceed beginning June 11 12th? 12 MR. MOLLER: Yes. 13 THE COURT: That's the second week. Mr. Barry. 14 MR. BARRY: Do I understand from your Honor we're 15 going to be limited to the same four categories of scope of 16 these depositions that were previously agreed with the 17 plaintiffs? 18 MR. MOLLER: I don't think so. 19 THE COURT: Why not? 20 MR. MOLLER: The scope was intended to limit what a 21 30(b)(6) witness would have to be prepared for. If we have a 22 given specific witness, I'm not sure that the four categories 23 will be appropriate for that witness. They may well be, but I 24 don't want to be tied now to a narrowly-confined deposition 25 when a witness may have knowledge that's far broader and could SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 65CVSEPC Conference 1 be examined in the ordinary course. 2 THE COURT: The four categories set out in the 3 30(b)(6) notices, in my opinion, are quite broad. I think it's 4 easier in relationship to the problems of SSI to allow 5 preparations to proceed within those categories. 6 The risk is that witnesses may have to be examined at 7 a later time again. I think that's a lesser problem, 8 notwithstanding the imposition that's possible on the 9 witnesses, and making it more difficult for defense counsel to 10 prepare their witnesses, having in mind the issues of defining 11 SSI. I'm looking through the March 31 order for -- 12 THE LAW CLERK: On page 8. 13 THE COURT: Eight? 14 MR. MOLLER: If we have the right -- 15 THE COURT: One minute, Mr. Moller. 16 MR. MOLLER: I'm sorry. 17 THE COURT: These are broad categories: 18 The warnings of information supplied to the United 19 States carriers by the Federal Aviation Administration about 20 the threat of hijackings, including terrorist hijackings. 21 All airport passenger screening procedures which were 22 utilized, including checkpoint screening procedures prior to 23 and after 9/11. 24 Three. The so-called common strategy in the event of 25 a threatened hijacking. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 65CVSEPC Conference 1 And four. The identity of documents submitted to the 2 TSA to determine whether they contain sensitive security 3 information. 4 The first three categories will require witnesses. 5 You and Mr. Barry, on behalf of your respective groups, can 6 identify the witnesses who will be responsive to those issues. 7 I'm sure that the witnesses will not be confined to one 8 airline, but may involve at least two, maybe more. And I think 9 you'll have a good deal of work to do going through those 10 areas. 11 And I would rule that at the beginning it's enough. 12 As to four, the identity of documents submitted to the 13 TSA to determine if they contain sensitive security 14 information, I think what Mr. Moller is looking for is a log. 15 And that doesn't need a witness, that needs an identification 16 procedure. It's like an interrogatory. So Mr. Barry can 17 supply those. 18 MR. MOLLER: Okay. 19 THE COURT: Now, before we begin -- I ruled. And 20 there is no confusion on this, except that which the TSA seems 21 to find, that the only parties -- only people allowed in the 22 deposition room are people who have been cleared or possibly 23 will be cleared, including the court reporter, and nobody else. 24 I've learned on that two things: One is that there 25 are a large number of people who wish now to be cleared; I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 65CVSEPC Conference 1 told by the TSA 125. And I've learned from the defendants that 2 the defendants and defendants' counsel have been cleared by 3 regulations only with respect to SSI or information that may 4 pertain to SSI coming from their respective clients. 5 So the clearance procedure needs to have some further 6 definition. I'm not sure I know how to supply that definition. 7 The easiest and best thing would be for TSA to clear additional 8 people. That would require, if they were to do it, a reduced 9 number coming from plaintiffs, because I do not envision that 10 there should be a large number of plaintiffs' counsel that 11 would need to be cleared. I think we need to cut down on those 12 numbers. I'm told there were 13 originally, there may have 13 been more, I don't know. 14 MR. MOLLER: There were 13. There were 13 cleared 15 attorneys originally. Some of them -- 16 THE COURT: That may be old information, and there may 17 be other people who need clearances because of different cases 18 and the like. So I think what I would need, what the TSA might 19 need, is a reduced list, very narrow prepared list of people 20 who would need to be cleared. 21 With regard to Mr. Barry's issue, there are two 22 aspects of it, as I've been thinking. One, if we limit the 23 witnesses to witnesses who have had personal information, we 24 make it easier to prepare the witnesses with only information 25 as to which these witnesses had personal knowledge or personal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 65CVSEPC Conference 1 relationship. But that does not end the need of defense 2 counsel to be present and pay attention to what others in like 3 positions may have to say. That's theoretically true. I'm 4 given to believe that these clearance procedures were 5 procedures developed in common to be used at various 6 checkpoints for various airlines that were serviced by those 7 checkpoints. That be true, you may be cutting across various 8 party lines, and I'd like to transfer this question from a 9 theoretical question to an actual question. 10 The next part of this is what TSA is willing to do. I 11 cannot require TSA to clear anyone. I cannot require TSA to do 12 anything. Theirs is a different jurisdiction. My jurisdiction 13 lies over the deposition room. And I would need help in 14 defining precisely who it is proposed will go into that 15 deposition room and who needs to be cleared. That will give 16 TSA an opportunity to clear or to determine the person may not 17 have clearance. 18 If the TSA fails to act within a reasonable time 19 period, my jurisdiction over the deposition room would be to 20 say that you should go ahead under the protocol that I have 21 described in my previous orders, that is, subject to objection, 22 the testimony is taken, it is set down in two copies of a 23 transcript, one of which is -- I forget exactly how it is, but 24 I laid it out on, I don't want to say things that are contrary, 25 that which I have written down in my order. That's how I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 65CVSEPC Conference 1 envision to proceed. 2 Now, is this practical or impractical? What do I need 3 to do to implement this? But I'm determined that these 4 depositions will go ahead. Mr. Clifford is anxious to speak 5 and raise a different issue. There's a different order of 6 urgency with regard to the personal injury and wrongful death 7 claims and the property damage claims. And I could understand 8 that a procedure may have to be established that could create a 9 preferred group in a wrongful death and personal injury 10 lawsuits and cause a deferral to another day of the property 11 damage lawsuits, out of sensitivity to the TSA's desire to have 12 the fewest number accessible to SSI as is possible. 13 There's one more issue that I've noted which we are 14 thinking through. I'm not sure we'll have an answer to this or 15 that an answer is required. 16 Under the definition of what is SSI, the general 17 paragraph, Section 1520.5A, limits SSI to that which would, as 18 having been determined by TSA, constitute unwarranted invasions 19 of various things. The regulation says, In accordance with the 20 statute, SSI's information "obtained or developed in the 21 conduct of security activities, including research and 22 development, the disclosure of which," here are the key words, 23 "TSA has determined would," and then there's invasion of 24 privacy, there's revelation of trade secrets, third one is, 25 "detrimental to the security of transportation." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 65CVSEPC Conference 1 And there's many other categories or classification of 2 SSI, but it's not clear that those are self-executed before TSA 3 has made a determination. 4 I'm aware that there are only two determinations that 5 TSA has made. And what TSA is saying confusion about is the 6 possibility of things that might be said by witnesses may 7 constitute, if TSA so eventually determines, SSI. 8 The protocol that we have outlined deals with that by 9 limiting the people who can hear this information at 10 depositions to those who have been cleared. But that may have 11 to be modified. It then becomes recorded in the transcript, 12 and is then subjected to TSA review. And I think that that is 13 a sound way for these depositions to proceed. 14 And I see nothing in the ensuing letters or motion for 15 reconsideration or anything else that would change that. And 16 we issued this order. It's going to say that the depositions 17 will proceed on that date in June that Mr. Moller stated. And 18 TSA has aggrieved, they have remedies, but we are going 19 forward. 20 So, Mr. Moller, would you give me a letter in a couple 21 days identifying precisely who needs clearance, who will be in 22 the deposition room, who needs clearance. Only on behalf of 23 the wrongful death and personal injury, Mr. Clifford, I'm 24 sorry. Mr. Barry, the same thing. Send a copy of that to 25 Ms. Dolan. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 65CVSEPC Conference 1 MR. BARRY: Just to get this straight, and Mr. Moller 2 and I can work out the details, I'm sure, but while we're here, 3 I understand that we're limited to the categories that we've 4 agreed upon before. 5 THE COURT: Yes. The first three categories. 6 MR. BARRY: First three categories. 7 THE COURT: With an identification by you. 8 MR. BARRY: Identification permitted by the TSA, 9 whatever I'm allowed to identify in terms of what we've given 10 to TSA. 11 THE COURT: TSA will have to object to it, and I'll 12 consider it. But my order is that you identify. The 13 identification is not secret. 14 MR. BARRY: Well, in terms of a log or whatever, 15 whatever they said. 16 THE COURT: A log is not secret. The contents of the 17 documents identified in the log could well be secret. 18 MR. BARRY: Okay. 19 THE COURT: But the log itself is not secret. 20 MR. BARRY: And we will produce, and I'm speaking on 21 behalf of American, the original request was for one 30(b)(6) 22 witness on behalf of American, and one 30(b)(6) witness on 23 behalf of United. 24 Now, do I understand that within the confines of the 25 three areas of testimony, we will produce one or more, if SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 65CVSEPC Conference 1 necessary, witness with knowledge of those three areas? 2 MR. MOLLER: You assumed my question. 3 MR. BARRY: And United -- you still want one from 4 United. 5 THE COURT: Mr. Clifford, I'll call on you. 6 MR. MOLLER: Mr. Barry assumes my question. If it is 7 no longer a 30(b)(6), but witness-specific questions, did you 8 see this document or whatever the question might be, based upon 9 the witness's personal knowledge, the assumed answers, are we 10 limited to one witness? 11 THE COURT: I don't think you are limited to one 12 witness, but I can't answer that academically. I think if 13 there is one witness who has extensive knowledge, that's all 14 you need. But if there are more, you'll need more. 15 MR. MOLLER: So what I would -- 16 THE COURT: I think it needs to be conversations 17 between you and Mr. Barry. 18 MR. MOLLER: Precisely. I would request that. When 19 we leave here, we're not leaving Mr. Barry with the assumption 20 that it's one witness for United and one witness for American, 21 but that, well, as they say in the trade -- 22 MR. BARRY: There may be one witness or there may be 23 two witnesses just to cover that subject. 24 THE COURT: Here's how it will work: Mr. Barry, we're 25 going to give a number of days. We'll identify to you the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 65CVSEPC Conference 1 witnesses who will have knowledge about the matters referred to 2 in items 1, 2 and 3 from American. They could be existing 3 employees, they could be previous employees, and perhaps the 4 areas which they have knowledge of. And then you can engage, 5 Mr. Barry, if you need more people than that. And you can also 6 ask each witness about other people who may know other things. 7 MR. MOLLER: That's okay. What I'm trying to assure 8 my constituency of, that there is some elasticity in the number 9 of witnesses and it is not one or necessary -- 10 THE COURT: I'll cut this out. I'm here. If you feel 11 aggrieved, you know how to let me know. 12 MR. MOLLER: That's fine. 13 THE COURT: But I'm depending on good faith in both of 14 you to move it. And let's say -- it's not going to be a 15 perfect world. Let's start. Let's see where we go. Take what 16 you get and move it. And then you'll complain if you don't get 17 more. 18 MR. MOLLER: As they say in the trade, we'll try to 19 work it out. 20 THE COURT: No. As they say in the court, let's 21 begin. Mr. Clifford. 22 MR. CLIFFORD: Thank you, your Honor. 23 THE COURT: Mr. Barry, you want to say one more word? 24 MR. BARRY: Sure. One more point, your Honor, before 25 Mr. Clifford gets up. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 65CVSEPC Conference 1 The fourth category, right, we're going to a 30(b)(6) 2 witness on -- just so we understand each other -- 3 THE COURT: Why do you need a 30(b)(6) witness? 4 MR. BARRY: No, that we weren't going to have. 5 THE COURT: You didn't need it, in any event. 6 MR. BARRY: The category is the identity of documents 7 submitted to the TSA to determine whether they contain 8 sensitive security information. So we've given them a log of 9 the documents in respect of the first and second wave. There 10 isn't one yet on the third. But that's, I think, as far as we 11 can go. 12 THE COURT: I think that's right. 13 MR. BARRY: Okay. Just so I understand. The floor is 14 yours. 15 MR. CLIFFORD: Thank you. Your Honor, the property 16 damage plaintiffs have not objected to your order of the 17 deposition protocol, notwithstanding the fact that we virtually 18 have no one or maybe one or two lawyers, at best, who have been 19 cleared. 20 The TSA has made it abundantly clear, excuse the pun, 21 that they refuse to clear anyone else, number one. Number two, 22 they say that even if a lawyer is cleared, then he or she 23 cannot hear SSI. 24 So I would urge you and ask you, you know, it's out of 25 a sense of your determination, to have these depositions go SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 65CVSEPC Conference 1 forward that we're standing down on this issue of maybe we only 2 have one person who's cleared. But the fact of the matter is 3 that to the TSA they say clearance doesn't make a difference to 4 them at all. Because notwithstanding the fact that they 5 cleared people, they're not going to let them hear SSI. 6 THE COURT: Mr. Clifford, I don't know how this is 7 going to work out. 8 MR. CLIFFORD: I know that. That's why -- 9 THE COURT: I would just tell you this, because I've 10 been giving this a lot of thought. First TSI said it's not 11 coming. I'm sure they'll object. And they may even seek to 12 instruct. What a defendant is supposed to do, what a witness 13 is supposed to do, if the TSA's lawyer instructs is something 14 that I haven't dealt with yet and which I'll probably have to 15 deal with. 16 I can't make ultimate determinations what is or is not 17 sensitive security information. I can't control the behavior 18 of counsel for the TSA. And we're dealing with subject matter 19 that has had little or no definition up to now. 20 Now, the regulation Section 1520.9A1 requires a 21 covered person, and I assume that the witnesses may be covered 22 persons, to take reasonable steps to safeguard SSI in that 23 person's possession or control from unauthorized disclosure. 24 We then have to understand what is the definition of 25 SSI. It may be that SSI requires a prior determination by TSA. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 65CVSEPC Conference 1 If that's the case, TSA's counsel would have to so advise the 2 witness. If it has not been a matter of previous determination 3 by TSA, I don't know if it can be an incoet (ph) SSI. 4 And it may be, and I think it probably will be, that 5 the witness is going to be in need of instruction from the 6 Court, whether the witness must answer or not. And it may be 7 they'll rule, but I haven't had this issue put to me, so better 8 not to even say. 9 But I have this choice: I could say the witness must 10 answer; the record is sealed. And under the protocol I've 11 suggested, to be provided that the issue is preserved until 12 final determination by TSA. And those who have heard it, since 13 they have been cleared or since they can be cleared by TSA, 14 don't present any risk of danger. 15 TSA can say that a district judge can't advise me, 16 can't advise the TSA to clear or not to clear. I mean I don't 17 think I can. But I can order a deposition to proceed. And I 18 can order the deposition to proceed in a way I suggest. 19 Alternatively, I can say that the objection and the 20 instruction of the TSA should be heeded, and plaintiff's 21 counsel can ask as many questions as counsel wishes to have to 22 preserve the record. And the record can come up, I don't quite 23 know how we'll work it out. And I think I should not speak too 24 much without having had the benefit of argument on the precise 25 questions that are put. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 65CVSEPC Conference 1 MR. CLIFFORD: Apropos to that, then, your Honor, 2 maybe two other minor points for you. 3 Certainly our position, should it come to this, 4 because I won't be at these depositions, I'm not a cleared 5 person unless they arrange for it in the interim, but we 6 maintained that something that was public in a federal court in 7 Virginia, as shown on national TV, ought not to be secret in 8 this courtroom or in this proceeding. And it is wrong to do 9 that 10 THE COURT: It's a point that, yes, which will be 11 implicit from what is -- 12 MR. CLIFFORD: And secondly. On that point, I'm sure 13 there's going to be argument on that. I mean I don't know, TSA 14 may agree with you. Whoever doesn't agree with you, the issue 15 may arise. Currently they are not agreeing. And just 16 informationally, maybe it would be useful to you to know, of 17 those 125 people for whom additional clearances has been 18 sought, I believe that a good number of those are staff people, 19 in keeping with SSI issues and security. I'm pretty sure all 20 of the law firms involved not only submitted name of their 21 counsel, they also submitted staff. So you're not dealing with 22 a request for 125 lawyers to be cleared. 23 THE COURT: I'm not interested in seeing their names, 24 but I do think that 125 names is unworkable. 25 MR. CLIFFORD: Well, it's reported in the matter of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 65CVSEPC Conference 1 public record that the TSA completed within 60 days 400 2 clearances for the Port Authority. 3 THE COURT: That's their business. I don't think 125 4 names is appropriate. I think it's got to be radically pared 5 down. I haven't heard from Ms. Normand and Ms. Goldman. They 6 don't have to speak if they don't want to. 7 MS. GOLDMAN: I'm sorry. 8 THE COURT: I see them in the audience. 9 MS. GOLDMAN: We look forward to seeing your order. 10 And we understand from what you said today that you intend that 11 at the depositions, because of cleared people in the room, SSI 12 will be disclosed. And that is the issue that we have with 13 this going along, because the final order that TSA issued 14 expressly states that cleared lawyers cannot hear SSI based on 15 the decision that they've made. 16 So we have a time conflict. And if, in fact, we have 17 direct conflict, then TSA has to make a determination about 18 whether to take that up with another court. But that's a 19 decision that has to be made by the Solicitor General's Office 20 ultimately. But if that's what the decision is, then we have 21 to consider that. 22 THE COURT: I have to say that I thought these 23 depositions would have gone on before that. In the motion for 24 reconsideration TSA asked me for stay and I said no. And just 25 now it's academic, because there are no depositions that are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 65CVSEPC Conference 1 ordered. There are now depositions that have been ordered, and 2 I expect that they will begin on the date that has been 3 ordered. So if you want a remedy before that, some other 4 declaration from some other court, that's your business, not 5 mine. 6 MS. GOLDMAN: All right. 7 THE COURT: Anybody else? All right. I'm finished 8 with that item. 9 MR. CLIFFORD: One other point. I'm sorry. I 10 apologize. Howard Clifford. 11 Just so the message is clear to the TSA going back, 12 the property damage plaintiffs and, I believe, all of the 13 parties, are prepared to review their list to substantially 14 pare down that request of 125 people down to a more manageable 15 number if that would be helpful to the government. 16 THE COURT: Mr. Clifford, let me make another 17 observation on this. One important consideration, in my 18 opinion, in my decisions has been the congressional 19 acknowledgment of the right to sue, of those who lost their 20 loved ones in the World Trade Center and the Pentagon and in 21 the field at Shankesville. In my opinion, that gives them a 22 special entitlement. 23 As I ruled, they had a choice between the victim 24 compensation fund and an ordinary lawsuit. They exercised 25 their choice. And, in my opinion, the stance taken by TSA SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 65CVSEPC Conference 1 makes that choice a nothing. And, therefore, I have been 2 greatly influenced in the position that I've taken. 3 That congress says acknowledge the specific right of 4 action and bless them in the sense of preserving that right, 5 congress has said nothing about property claims. And I think 6 it's clear from the stance that you've taken in this case that 7 you are not pressing the point of procedural equality with the 8 wrongful death and personal injury claimants. I'm not saying 9 here about substantive quality. 10 MR. CLIFFORD: I'm not pressing the point because we 11 certainly acknowledge that there's a great deal of difference 12 between a personal lawsuit on a building that fell. However, 13 we, number one, do believe that our trial rates are the same. 14 We think that hypothetically if you conducted a liability trial 15 tomorrow in a wrongful death case versus the property damage 16 case, the evidence would be identical. 17 THE COURT: I would think so. 18 MR. CLIFFORD: And so -- 19 THE COURT: Most of the evidence would be identical. 20 MR. CLIFFORD: Certainly on the liability side. 21 THE COURT: Yes. The issue of damages would be 22 different. There might be differences in causation, there 23 might be differences, but there's a large core of commonality. 24 MR. CLIFFORD: But you'll recall that early on, there 25 was this discussion about priority of claiming a preference. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 65CVSEPC Conference 1 And the fact is that the property damage claimants made the 2 judgment to stand aside and allow those claims to go forward, 3 even mathematically coming up with hypothetical numbers that 4 they talked about allocating it as a set-aside on any claims 5 that they would make. So, yeah, we've done that. 6 THE COURT: I understand that, Mr. Clifford. I 7 appreciate it. And I think what I was coming to is to ask that 8 we do the same thing with this round of depositions. And that 9 may create a risk for defendants and witnesses, but they may 10 have to be subjected to another round of questioning at a later 11 time that may be redundant. But I think it would be useful in 12 relationship to the problems posed by TSA that the issue be 13 faced only with those who enjoy the status recognized in the 14 Air Transportation Safety and Systems Stabilization Act. 15 MR. CLIFFORD: We understand, your Honor. 16 THE COURT: So the only people cleared and going into 17 this room will be those representing wrongful death and 18 personal injury claimants and defendants. 19 Ms. Goldman, are there cleared court reporters for 20 SSI? As I know, there are cleared court reporters in the pool. 21 MS. GOLDMAN: Yes, there are. 22 THE COURT: Yes. Okay. 23 MR. GRANITO: Frank Granito. Your Honor, one of the 24 plaintiff's executive -- 25 THE COURT: I need you to speak louder. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 65CVSEPC Conference 1 MR. GRANITO: I'd like to bring to the Court's 2 attention for your consideration that the existing list of 13 3 years is actually outdated and no longer really represents the 4 best interests of the plaintiffs' parties. I'm on that list, 5 so I'm not really complaining about in the sense that I'm not 6 on it. In fact, one of my partners is on it. But I know that 7 the list doesn't accurately reflect the interests of the 8 parties. 9 THE COURT: I won't disagree with you. I don't know 10 who's on the list, but I know there have been changes. I know 11 there are settlements that have occurred and caused changes. 12 MR. GRANITO: Yes. 13 THE COURT: What I proposed to Mr. Moller is that 14 there be a short supplemental list that would reflect the 15 current conditions of the suits. 16 MR. GRANITO: And we may be in a situation in which 17 those with the vital interests in the litigation are not on the 18 list and can't get clearance in time to participate in the 19 depositions. And I point out, your Honor, since the government 20 is making no distinction whatsoever between those who are 21 cleared and those who are not cleared, then perhaps you may 22 reconsider the requirement that there be a clearance; and that 23 some other consideration be given in order to be eligible for 24 that list. 25 THE COURT: I commented that there will be an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 65CVSEPC Conference 1 opportunity for clearance, not necessarily clearance. 2 If TSA doesn't want to clear, then the opportunity of 3 clearance would be sufficient, provided the list is narrowly 4 drawn and fairly represented. 5 If TSA is willing to clear and needs more time to 6 clear, then I would feel very sympathetic to an adjournment. 7 If TSA looks at anybody, says, well, this person can't be 8 cleared, I would be sensitive to that, as well. 9 But at this point what I'm thinking of, those who 10 haven't cleared, and to the extent reasonable and appropriate, 11 those additional people who need to be there and who are 12 offered to be cleared, with the opportunity for TSA to provide 13 clearance. 14 MR. GRANITO: My fear is, your Honor, is that, as you 15 said, that you don't believe it's within your jurisdiction to 16 compel the TSA to clear. And that being the case, the 17 government may decide not to add -- 18 THE COURT: I don't think it hurt at all. If they 19 have the opportunity and choose not to act, since I have 20 jurisdiction over the deposition room, I could order the 21 depositions to proceed with the people who have been identified 22 to the TSA being present. 23 MR. MOLLER: I think in light of your comments, your 24 Honor, the first thing we're going to do is supply a letter to 25 TSA identifying the people on the plaintiffs' side for whom we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 65CVSEPC Conference 1 wish to have clearances granted. Hopefully we'll be -- 2 THE COURT: With their parties they represent. 3 MR. MOLLER: Right, with the parties that they 4 represent, because -- 5 THE COURT: It should be a very narrowly-drawn list. 6 MR. MOLLER: It will be. I would hope we can engage 7 in a quick dialogue with the TSA through Ms. Goldman or 8 directly through TSA to find out whether there will be 9 clearances granted or not. 10 Mr. Granito was right, there are constituents who are 11 disproportionally low to their interest, in all candor, and I 12 think we have to address that both as a practical matter and as 13 a matter of fairness. 14 And I think if the TSA engages in that dialogue, they 15 might even see their way clear to grant some clearances to 16 property damage people to facilitate the movement of this case. 17 If not, we've heard your Honor about property maybe having to 18 wait a little bit, but I have a feeling that common sense ought 19 to reign at this point, and maybe we'll be surprised to find 20 that everything all works out within the next couple of days 21 and get back to you. 22 But right now we're planning to start the depositions 23 on the 12th of June. Mr. Barry and I, and his colleagues and 24 some of mine, will identify witnesses; we'll get in front of 25 TSA and speak. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 65CVSEPC Conference 1 THE COURT: Mr. Moller, do a joint letter with 2 Mr. Barry, because Mr. Barry has some people that he wants on 3 the list, and he certainly would want to have mutual 4 clearances. American Airlines people can see United's as it 5 goes. 6 MR. CLIFFORD: One point of order? I'm sorry. I 7 apologize. 8 THE COURT: Mr. Clifford, then Mr. Williamson. 9 MR. CLIFFORD: I apologize. If you've answered this, 10 forgive me. There are two lawyers on the property damage team 11 that have been cleared. Are they permitted to attend the 12 depositions? 13 THE COURT: Mr. Williams, have you been cleared? 14 MR. WILLIAMSON: Yes, your Honor. Richard Williamson 15 for the Port Authority and the World Trade Center property 16 defendants. I have been. And I had a separate point. 17 THE COURT: Ms. Goldman and Ms. Normand, you don't 18 have to answer this, but, if the addition of these people will 19 be consideration one way or another, I would rule responsibly 20 to that consideration. In other words, if you're going to 21 object anyhow, I don't see any additional problem if they are 22 present. However, if this is a ground, then they don't have to 23 be present. 24 MS. GOLDMAN: You're referring to the property damage 25 plaintiffs in particular? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 65CVSEPC Conference 1 THE COURT: Yes, two people from Mr. Clifford's group 2 and Mr. Williamson. 3 MR. WILLIAMSON: May I be heard, your Honor? 4 THE COURT: But if it's any kind of consideration -- 5 and maybe this just can be informal. But if it's any kind of 6 consideration, my ruling will be that they cannot be present. 7 And I know that you cite a ruling that the fewer, the better, 8 from your point of view. So in that interest, I would say they 9 cannot enter. 10 I'd really prefer this to be handled informally and 11 not as a ruling. So let me do it this way: The rule is that 12 property damage people cannot be present. But if we're going 13 forward and you can arrange an informal understanding that 14 would not create an estoppel for anybody, then it would be my 15 preference that your folks begin that deposition. But the rule 16 is they can't be unless -- go ahead, Mr. Williamson. 17 MR. WILLIAMSON: Thank you. Yes, as I said, I had a 18 different point. I wasn't about to ask permission to attend as 19 property damage plaintiff, but, rather, our clients are 20 defendants in these cases still, and in that capacity we 21 believe we have a right to attend. And we do have the 22 clearance as codefendants with the right to attend and 23 cross-examine. So I was going to ask -- 24 THE COURT: I was going to exercise my discretion and 25 to say no. Your interest is a potential cross-claim interest, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 65CVSEPC Conference 1 it's not essentially a defense interest. You're liable or not 2 according to your own conduct, not the airlines' conduct. And, 3 in my judgment, you are of a different and distinguishable 4 category from the wrongful death plaintiffs. So the rule is 5 that you are in Mr. Clifford's capacity, and you will be 6 present or not according to the way I just spoke. 7 MR. WILLIAMSON: So then we would simply respectfully 8 object and take exception to your Honor's ruling, but obviously 9 abide it. 10 THE COURT: The record so reflects. 11 MR. WILLIAMSON: Thank you. 12 THE COURT: Mr. Barry? 13 MR. BARRY: Your Honor, I was just going to raise a 14 point with Mr. Clifford. If the property people are going to 15 be present, are they there to ask questions or are they there 16 to observe it? Because you've already indicated that you would 17 give them a second bite of the apple. 18 THE COURT: Well, if they're present, I don't know. 19 You know, I just think it would be better. 20 MR. CLIFFORD: You just ruled, your Honor. We're not 21 going. 22 THE COURT: Okay. So no private informal 23 understanding. They will not be present. 24 MR. BARRY: Okay. 25 THE COURT: Now, if TSA changes its position or work SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 65CVSEPC Conference 1 out some understanding, you can ask me to reconsider. But the 2 present state of things -- 3 MR. CLIFFORD: Yes. We'll be communicating with them. 4 And, if appropriate, we'll be back in touch with you on that 5 point. 6 THE COURT: Anything more on Item No. 2 on the agenda? 7 We're onto No. 3, plaintiffs' request for liability trial date. 8 The answer, Mr. Clifford. 9 MR. CLIFFORD: Your Honor, sorry to be the one to be 10 putting this on the agenda, given our analysis of the scenario 11 that the TSA has created by their position on SSI, given the 12 position that, we maintain ought to be the law of this land, 13 that what was public in Virginia ought not to be secret in New 14 York. 15 We plaintiffs believe that a trial based on the public 16 record docket available can and should go forward. Because as 17 it now stands, we're at least a year away from any -- it's my 18 understanding that hypothetically if the Second Circuit were to 19 hear argument tomorrow, the average time for a decision by the 20 Court is at least nine months. Given the harassment that's 21 been given with the 911 position -- 22 THE COURT: What is this nine-month rule? 23 MR. CLIFFORD: My co-counsel told me on average it 24 takes the Second Circuit -- it takes about nine months after 25 argument for a decision. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 65CVSEPC Conference 1 THE COURT: My jurisdictional issue. 2 MR. CLIFFORD: All I'm saying, everything that's taken 3 place, we'll take our chances with a public docket trial. And 4 that will force things to a head ultimately. I mean it's very 5 clear the courts determine you've been frustrated by the length 6 of time it's taken already, and for good reason. You're years 7 away from resolution in this case. 8 THE COURT: Mr. Motley, do you want to say something 9 on this. 10 MR. MOTLEY: Ron Motley, South Carolina. I support 11 Mr. Clifford's remarks. 12 THE COURT: Until you spoke, I didn't know you were 13 from South Carolina. 14 MR. MOTLEY: I was actually conceived in Rhode Island. 15 THE COURT: You've lost that. 16 MR. MOTLEY: They shipped me out. 17 We support Mr. Clifford's position, and we believe 18 that we can and should be allowed to go forward. There's an 19 abundance of evidence, both from the public record and from 20 what was placed in the evidence and displayed in the public in 21 the Moussaoui trial to afford both parties a fair trial. 22 THE COURT: I deny the request for a trial date. 23 With regard to the comment what may be public in the 24 district of -- the North District of Virginia -- it's not the 25 northern district. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 65CVSEPC Conference 1 MR. CLIFFORD: Eastern district. 2 THE COURT: -- eastern District of Virginia can be 3 made public here, too, if it becomes relevant. And I suppose 4 if there's going to be proceedings with regard to SSI, that an 5 issue will become quickly part of this record. I deny a 6 request automatically to make it part of this record because it 7 is not relevant to anything going on. But if it becomes 8 relevant, then someone's going to introduce it. So we'll deal 9 with that at that time. 10 Secondly, it may be that some or all the plaintiffs 11 are willing to go to trial on the information that's at hand. 12 But the defendants have made it clear that they are interested 13 in having an explanation as to what they did. And they are as 14 hamstrung, and maybe more hamstrung by the TSA, as the 15 plaintiffs are. 16 So I can't fix a trial date without giving the 17 defendants an opportunity to conduct discovery. 18 Third, I'm ready when you are. You want a trial date 19 and you're ready, I'll give you a trial date. I don't have a 20 procedure of assigning trial dates just to assign trial dates. 21 I assign trial dates when the cases are ready. And I try cases 22 when they are ready. 23 I have a criminal trial that will last about six 24 weeks, and there are few possibilities after that. But I have 25 no firm trial dates. So you'll get one. You want one, you'll SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 65CVSEPC Conference 1 get one, but you have to be ready. 2 And my judgment is with all this uncertainty going on, 3 you're not ready for it, and I'm not going to give you a date 4 on a calendar when others might be needing a trial. So the 5 answer is no trial date assigned. But that doesn't mean you 6 shouldn't be pressing ahead. 7 MR. CLIFFORD: Okay. 8 THE COURT: Additional items? 9 MR. GRANITO: Your Honor, frank Granito. It's a good 10 possibility that these depositions that are scheduled in June 11 may not be held for one reason or another that has to do with 12 actions taken by the TSA in terms of any of its appeals they 13 decide to make. 14 THE COURT: There's going to have to be a stay. 15 There's going to have to be a stay ordered. 16 MR. GRANITO: Yes, yes, but -- 17 THE COURT: And it's not coming from me. 18 MR. GRANITO: I understand, your Honor. But I ask the 19 Court to consider the possibility, if we do run into a 20 situation where we're stalemate, again, of possibly trying some 21 of the cases on a damage basis, try damages only. Just to 22 consider it, your Honor. 23 THE COURT: You'll raise it again; I'll consider it. 24 At this point, I don't see any need to consider it. I have 25 enough trouble considering the things I have to consider. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 65CVSEPC Conference 1 When is a good time to meet again? I would think it 2 should be after Ms. Birnbaum completes her work; that it should 3 be after the round of depositions that will begin June 12th. 4 So I think -- 5 MR. CLIFFORD: End of June. 6 THE COURT: -- in July. 7 MR. MOLLER: Could we make it tentatively the last 8 week in June so that we'll know or have some clue as to how the 9 depositions have gone, and that might be reflected in what 10 might be discussed at the next status conference? 11 MR. BARRY: Certainly will not be even near finished 12 with mediations by then, Judge. It's whatever you think. But 13 I would think more time than that would be appropriate. 14 THE COURT: If I fix it July 7 at 2 o'clock, is 15 that -- 16 MR. CLIFFORD: January 2nd? 17 THE COURT: July 7. 18 MR. BARRY: July 7. It's a Friday. Not after that. 19 THE COURT: July 7, 2 o'clock, next session. That 20 means I wish you all a happy Memorial Day and a happy July 4th. 21 * * * 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300