1 29K7marc 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 ELLEN MARIANI, et al., 3 4 Plaintiffs, 4 5 v. 01 Civ. 11628 (AKH) 5 6 UNITED AIR LINES, et al., 6 7 Defendants. 7 8 ------------------------------x 8 9 September 20, 2002 9 2:15 p.m. 10 10 Before: 11 11 HON. ALVIN K. HELLERSTEIN 12 12 District Judge 13 13 APPEARANCES 14 14 KREINDLER & KREINDLER 15 Attorneys for Plaintiffs 15 BY: MARC S. MOLLER 16 JAMES P. KREINDLER 16 NOAH KUSHLEFSKY 17 17 BAUMEISTER & SAMUELS, P.C. 18 Attorneys for Plaintiffs Executive Committee 18 BY: MITCH F. BAUMEISTER 19 19 SPEISER KRAUSE NOLAN & GRANITO 20 Attorneys for Plaintiffs 20 BY: KENNETH P. NOLAN 21 21 BAUM HEDLUND ARISTEI GUILFORD & SCHIAVO 22 Attorneys for Plaintiffs 22 BY: PAUL J. HEDLUND 23 MARY SCHIAVO 23 JOHN GREAVES 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 29K7marc 1 2 HANLY & CONROY LLP 2 Attorneys for Plaintiffs 3 BY: PAUL J. HANLY, JR. 3 4 NESS MOTLEY 4 Attorneys for Plaintiffs 5 BY: RONALD L. MOTLEY 6 QUIRK & BAKALOR 6 Attorneys for Defendant United Airlines 7 BY: JEFFREY J. ELLIS 7 8 MAYER BROWN ROWE & MANN 8 Attorneys for Defendant United Airlines 9 BY: MICHAEL R. FEAGLEY 9 10 JAMES B. COMEY 10 United States Attorney for the 11 Southern District of New York 11 BY: DANIEL s. ALTER 12 SARAH SHEIVE NORMAND 12 Assistant United States Attorneys 13 13 DEBEVOISE & PLIMPTON 14 Attorneys for American Airlines 14 BY: ROGER E. PODESTA 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 29K7marc 1 (Case called) 2 (In open court) 3 THE COURT: Be seated everybody. I have distributed 4 copies -- and perhaps there aren't enough for everyone who 5 wants one -- of a draft of an agenda for our conference today. 6 This represents our effort to reflect all that has been put to 7 us in the various submissions. It does not represent too many 8 of my views and hopefully none of my substantive views with 9 regard to the case, but it is an effort to structure our 10 discussion today so that we can move forward with some degree 11 of efficiency. 12 If anyone wishes to bring up a matter that is not 13 covered by the agenda, please feel free to do so. If anybody 14 in the public gallery wants to have a copy of the agenda, and 15 we don't have enough copies here, we will endeavor to get 16 copies for you. But there is no magic to this agenda, just an 17 effort to structure our discussion. 18 I will proceed in the manner that I have organized 19 here. As I say, if others want to say something, they can. 20 We have not yet organized into committees, but there 21 is too much to do to allow everybody to speak, so I would ask 22 you -- and I will put this on a cooperation basis -- not to 23 speak if something has already been covered or it can be fairly 24 inferred from what has been covered. 25 Let's talk about the consolidation issue first. What SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 29K7marc 1 I envision here is that the cases before me will be against 2 airlines, security companies or the Port Authority but not 3 against hijackers. There have been some cases that have been 4 filed and some have been referred to me, but I have declined 5 jurisdiction over them. I think they present different issues, 6 different parties, with different measures of cooperation that 7 may be required, and I don't think they are suitable for 8 treatment, and this is already a large enough group, so, I have 9 declined jurisdiction over them. They will go to some other 10 judge. With some luck my name will not come out of the wheel 11 for them, and I expect they will not be consolidated with 12 yours. 13 Now, to some degree I really can't anticipate there 14 will be overlap with regard to cases against airlines, against 15 security companies, against the Port Authority. As many of you 16 know, it is quite likely that most or all the cases against the 17 Port Authority will be in a suspense category. I have ruled 18 that because of the particular structure of the one-year 19 statute in New York that defines the jurisdiction of the Port 20 Authority, and the exception to sovereign immunity in the 21 states of New York and New Jersey, and with the cooperation of 22 the special counsel, that the mere filing of a lawsuit and 23 service thereof against the Port Authority will be suspended. 24 That way jurisdiction against the Port Authority is preserved 25 and there will not be a limitation on the ability of these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 29K7marc 1 plaintiffs to decide at some date within the structure of the 2 Victim Compensation Fund, to decide to go against the Victim 3 Compensation Fund. As you know, the filing of a claim against 4 the Victim Compensation Fund will not allow a lawsuit, and 5 although the matter has not been put to me, logically it would 6 seem that proceeding with the lawsuit is inconsistent with a 7 claim against the Victim Compensation Fund. 8 There is at least one case and perhaps more where in 9 one or several lawsuits there has been effort to claim both 10 against the Port Authority and against airlines. I have 11 provided in my order that that will not allow a claim of 12 suspension. It's inconsistent with a claim of suspension, and 13 anybody who is involved in such a lawsuit should rethink his or 14 her position very, very quickly, because it may lead to 15 consequences that are unforeseen and undesired. That covers 16 1A. 17 Now we are down to 1B, plaintiffs' committees. The 18 plaintiffs who are representing personal injury people have 19 suggested a different committee, different executive committee 20 as to those who deal with personal injuries and those who deal 21 with property losses. That's unsatisfactory. That will lead 22 to complications. The issues will overlap in many, many 23 degrees. I envision that plaintiffs will have to group 24 themselves into an executive commit too and break down into 25 subcommittees to subsume all aspects of the plaintiffs' cases. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 29K7marc 1 There cannot be more than one executive committee on a side, at 2 least without my having to rethink very specifically that 3 proposition. 4 I called Mr. Moller yesterday, since his letter was 5 the letter that prompted some of this, and I told him what I 6 have just said, so I will expect the plaintiffs to organize 7 them into one executive committee. 8 I would like -- and I have given you a date which I 9 will mention later on in this agenda -- an identification of 10 the members of that executive committee. I expect that not all 11 of you will want to be members of the executive committee, but 12 there has to be some measure of responsiveness to all claims 13 and democracy in moving forward. It is very much in the 14 plaintiffs' interest to organize and streamline their cases and 15 encompass all aspects of these claims, because if they do not 16 they will be hurting themselves and their clients, and I do not 17 expect to have it tolerated. 18 We do not know right now what the universe of claims 19 is. There will certainly be claims that will be filed much 20 after the present date. I read in the press this week that the 21 Cantor Fitzgerald employees have received a recommendation 22 against entering the Victim Compensation Fund. I will not try 23 to penetrate that issue. That's for them to decide. But if 24 they decide in favor of litigation, we are going to have a lot 25 more cases filed. The same may be true of other unfortunate SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 29K7marc 1 companies and other unfortunate employees who were trapped in 2 the World Trade Center. So, the executive committee has to 3 allow a certain open endedness, and there may be some need to 4 readjust what you have to do. Mr. Baumeister? 5 MR. BAUMEISTER: I hesitate to rise so early. 6 THE COURT: Then maybe you should sit down. 7 MR. BAUMEISTER: It is an important enough issue. 8 Should I hold my comment until later or now? 9 THE COURT: If they are relevant to now, make them 10 now. 11 MR. BAUMEISTER: Your Honor, we had preliminary 12 meetings on the plaintiffs' executive committee and we believe 13 as far as the organization is concerned there is a conflict 14 both, an actual one and an emotional one between grouping the 15 wrongful death and personal injury cases together with the 16 property damage cases. 17 THE COURT: I expect your right. I expect you're 18 right, but you are going to have to encompass both sides in one 19 executive committee. There is no reason why attorneys 20 representing parties that may have different interests, 21 different ideas and different emotional backgrounds cannot work 22 together on issues that overlap and go their own ways where the 23 issues don't overlap. You are going to be breaking down into 24 subcommittees. There will have to be cooperation. 25 MR. BAUMEISTER: And we agree, and we embrace that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 29K7marc 1 concept, your Honor. My point is simply one of when the one 2 individual who wants to represent Lloyd' of London to recover 3 their money, the insurance company that also insures the 4 airlines who are now paying money on the one hand, taking on 5 the other, if they are on the same executive committee, while 6 we are making strategy positions that run counter -- 7 THE COURT: I will have to deal with that issue 8 specifically Mr. Baumeister. I understand the point you are 9 making, and we will have to deal with it, but it's not an issue 10 at this time. If it becomes an issue, I will deal with it. 11 MR. BAUMEISTER: Thank you. 12 THE COURT: There is no secret formula that will deal 13 with every issue that comes up in this case. What I depend on 14 all of you for is cooperation, civility and candor. If we 15 observe all that and submerge our egos, we will move this case 16 along with a good degree of efficiency, a lower amount of 17 rancor and hopefully get proper results for the parties on the 18 merits. That's my aim. 19 MR. MOTLEY: Your Honor, Ron Motley for the 20 plaintiffs. 21 THE COURT: Yes. Thank you, Mr. Motley, for 22 introducing yourself. The reporter doesn't know you, and I 23 don't remember all of you, so please do introduce yourself. 24 MR. MOTLEY: Thank you, sir. I didn't quite 25 understand what your Honor meant with respect to the Port SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 29K7marc 1 Authority and an airline being sued in the same case. If the 2 say Flight 93 victim says that the Port Authority had some 3 influence over security measures at Newark and sued the 4 airline, are you saying that we cannot go forward with the Port 5 Authority and the airline in the same case even if we have 6 given proper notice? 7 THE COURT: Not if you want to suspend the case. 8 MR. MOTLEY: So, the suspension of the Port Authority 9 aspect would spill over to the airlines and others. 10 THE COURT: Either you want a suspended case for 11 purposes of deciding whether to go before the Victim 12 Compensation Fund or you don't. If you sue actively in one 13 side you are going to be considered as a nonsuspended case. 14 MR. MOTLEY: Okay, that's what I thought. So, if we 15 intend not to go to the Fund, we're okay in naming the Port 16 Authority of New York. 17 THE COURT: I am not going to answer that, Mr. Motley. 18 We are going to move along now. 19 I am down to B2 which deals with subcommittees. At 20 some early point you are going to have to divide up in terms of 21 your major interests. I recognize that people who lost money, 22 property, and people who are suing because their spouses or 23 their parents or some other loved one died are going to be 24 animated in many different ways, but many of the issues will 25 converge, and since we are professionals we will deal with this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 29K7marc 1 in a professional way. 2 You are going to have subcommittees. The 3 subcommittees may shift. The subcommittees may comprehend 4 different interests. This will be a major administrative job 5 on each side to run this case in a way that represents everyone 6 but saves money so people don't have to run to cover various 7 kinds of discovery coming on at the same time. 8 I am not going to be very sympathetic to motions to 9 adjourn dates that have already been agreed to. We can work 10 efficiently and there may be double tiering or triple tiering. 11 The subcommittees are a method by which we can move this case 12 along on different planes. 13 The formation of the subcommittees will be a function 14 of the executive committee. It is essential, as I said, that 15 the executive committee be open and Democratic. At the same 16 time I take Mr. Baumeister's point and I note we will all be 17 sensitive to it, but you have all been involved in large cases. 18 This is not something new. It may be larger, it may be more 19 complicated, but the techniques developed by the Manual for 20 Complex Litigation should work effectively here. 21 Let me go to the defendant's side. I am on page 2, 22 1C. Some of the defendants have expressed themselves in a way 23 that is inconsistent with the idea I have expressed of an 24 executive committee. We are about to work with liaison 25 committees as well. There are fewer of you and you may be able SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 29K7marc 1 to cooperate, but I think inevitably there are so many 2 different interests that we need to have organization, and 3 again I think the subcommittee function is the way that you can 4 express yourselves in terms of your separate interests and yet 5 be able to function in a way that presents one point of view to 6 me that may encompass different ideas. 7 Miss Popp has given me a note that says we have over 8 30 defendants now, so I don't think we can look upon this as a 9 case where we can on an ad hoc basis achieve consensus and 10 cooperation. We need a structure, and I would like to call 11 upon you to develop a structure. I think Mr. Alter 12 representing the government is probably going to be outside the 13 structures, but he should be able to come in to both sides, the 14 plaintiffs' side and the defendants' side. The government 15 doesn't have in the court here a monetary stake. It has a 16 stake to preserve sensitive and confidential information, and 17 there is going to be a need for lots of informal conferences, 18 and I think Mr. Alter is going to have a unique position 19 outside and be able to communicate with both side. 20 MR. ALTER: Daniel Alter for the U.S. Attorney's 21 office. I agree entirely with the court's characterization. I 22 want to bring to the court's attention that last Friday the 23 government, several agencies of the government, were first 24 served with a lawsuit in connection with the 9/11 attacks, so 25 as of now we stand as defendants in these cases. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 29K7marc 1 THE COURT: Mr. Alter, I am sure you haven't thought 2 about this, but what is the interplay between the Federal Tort 3 Claims Act and this lawsuit? 4 MR. ALTER: It is our feeling, your Honor, that it 5 applies fully, and that all -- 6 THE COURT: Which means that you will not be before me 7 in your capacity as a representative of a defendant in terms of 8 the government being a defendant in the lawsuit. 9 MR. ALTER: Well, the United States of America will be 10 named as a defendant in at least one lawsuit to date. I 11 believe three agencies of the government have been named. 12 THE COURT: And therefore you will be. 13 MR. ALTER: Yes. 14 THE COURT: How is that going to impact on discovery 15 issues? 16 MR. ALTER: Your Honor, it is our very firm belief 17 that the regulatory activities, the TSA, which we started here 18 to enforce, have nothing to do with our position as a defendant 19 in the case, and we actually anticipate if these claims are 20 prosecuted to move fairly early in the case to dismiss the 21 government on legal grounds. 22 THE COURT: Would those standing please find seats. 23 MR. ALTER: Your Honor, I don't know whether we have 24 actually been formally served at this point. We are aware, 25 however, that the complaints were filed with the court. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 29K7marc 1 THE COURT: I think we will just have to work that out 2 probably for the next conference, Mr. Alter. I don't know if 3 you will be representing the government as the defendant. You 4 may be. 5 MR. ALTER: We will address any of those difficulties, 6 your Honor, and deal with them as they come along. 7 THE COURT: Probably -- just speaking without having 8 thought about this at all -- it might be better if either the 9 Department of Justice or one of your colleagues represented the 10 government in its capacity as a defendant in view of the unique 11 position here, Mr. Alter, and I would not want to lose you in 12 terms of guiding me. 13 MR. ALTER: Your Honor, we fully appreciate that, and 14 I anticipate we will take such steps. 15 THE COURT: Alright. Do any of the defendants want to 16 speak? 17 MR. PODESTA: Roger Podesta for American Airlines. 18 Just one point of clarification on the consolidation order. In 19 the last several weeks we have seen named as defendants in the 20 same cases as the airlines a number of what I would call 21 premises defendants -- building managers, architects, 22 engineers, building owners at the World Trade Center. Am I to 23 understand that it is your intent to consolidate all those 24 cases against the premises owners if they also name an airline 25 and an airport security company? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 29K7marc 1 THE COURT: And perhaps even if they didn't name an 2 airline as well. I can't give you advisory opinions. I found 3 in deciding Graybill that the problems were quite difficult to 4 think through, and I've got other cases that resemble Graybill 5 in a way and there are other cases that are in the system 6 having to do with clean-up efforts by firemen. I would think 7 that if building superintendents and other people employed by 8 the Port Authority were named, whereby other companies were 9 named, we would be quickly moving through to get to the Port 10 Authority anyhow, through respondeat superior or other ways. I 11 don't know the answer, Mr. Podesta. 12 MR. PODESTA: But, your Honor, in terms of organizing 13 our defense committee, should the airline and airport security 14 companies and the Port Authority be looking to include as 15 entities represented on the committee the premises liability 16 entities? 17 THE COURT: Yes, I would like you all to organize 18 yourselves. And I know it's complicated, because we haven't 19 even gotten to the third-party litigation yet, but there is the 20 potential at least for lots of cross-claims amongst the defense 21 groups. There are going to be discussions, I suspect, of the 22 tolling of the statute of limitations, and there will be 23 potential for conflict galore; but, nevertheless, for the 24 functioning of this case I need you to organize yourselves, 25 encompass all the different groups and interests. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 29K7marc 1 The bottom line, you are defendants. Whether you have 2 an ability to lay off all or part of your clam against other 3 defendants is another story, but you are defendants first and I 4 need you to organize yourselves, and I will look for some 5 leadership in that regard, and I would like actually to have 6 one provisional name to whom I can look. Since, Mr. Podesta, 7 you have just stood up -- 8 MR. PODESTA: -- I guess I have inadvertently 9 volunteered. 10 THE COURT: -- you have volunteered. So, I will look 11 to you to begin the organization of the defendants' side. 12 MR. PODESTA: Thank you, your Honor. 13 THE COURT: You're very welcome. Thank you. We are 14 down to the issue of liaison counsel. 15 As many of you know, I have experience in other cases. 16 With this number of parties involved in both sides it is 17 necessary to have one function that serves as a coordinating 18 and organizing effort. It frequently happens that liaison 19 counsel doesn't have any clients at all, the only function of 20 liaison counsel is to organize and coordinate and preside over 21 meetings and call meetings and communicate with the court. It 22 is sometimes very useful to have a liaison counsel because it 23 allays the concerns that one lawyer may have that another 24 lawyer has a somewhat different interest and may be getting a 25 step ahead from also being a liaison counsel. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 29K7marc 1 There are some heady responsibilities. There are 2 going to have to be document depositories. The document 3 depositories are going to be overlaid with security concerns 4 and security regulations, and I believe that we will need 5 liaison counsel for each side either by one of the people here 6 or by someone who is appointed for that purpose and looks for 7 payment on some kind of basis from all the parties on each side 8 or all the law firms on each side, and I wonder if anyone has 9 any ideas to speak to on that. Mr. Moller? 10 MR. MOLLER: I suppose on an interim basis until we 11 get ourselves organized, as soon as we have been communicating 12 with the court and I have had discussion with other plaintiffs' 13 counsel, that my firm will assume that role and I within the 14 firm will undertake primary responsibility. I will share it 15 obviously with my other partners and hopefully we will be able 16 to memorialize that in a document. 17 THE COURT: If that's satisfactory with your 18 colleagues, it's satisfactory with me. The alternative is to 19 find a firm that can assume that function and use that firm. 20 You are going to have to not only be involved with the 21 communications and be in charge of communications, but I want 22 to eliminate as much as possible -- because otherwise my 23 secretary is going to quit -- all kinds of separate 24 communications. She is not allowed to quit. 25 MR. MOLLER: We are going to explore the idea of a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 29K7marc 1 third firm, an outside firm not involved in the actual 2 day-to-day issues of representing plaintiffs or defendants. 3 But in the document we ultimately file in response to this 4 order we will have that resolved. 5 THE COURT: Alright. And will you look for payment 6 from your colleagues or will you be doing this as part of your 7 representation? 8 MR. MOLLER: Let me put that in the order we submit to 9 you. Hopefully we will resolve that among all of us. 10 THE COURT: Mr. Podesta? 11 MR. PODESTA: Yes, your Honor. I think the issue of 12 liaison counsel for the defense side probably should await 13 further meeting among the defendants, although preliminary 14 indication is that my cocounsel Desmond Barry of Condon & 15 Forsyth might very well be a good choice because Des has a good 16 working relationship with many on the plaintiffs' executive 17 committee already and has long experience. 18 THE COURT: Having Condon & Forsyth perform that 19 capacity would be splendid, But I don't think they should wait 20 for the next meeting. I think it is a function that you need 21 to agree to among yourselves. If you can't agree, I can meet 22 with you, and I don't know that the plaintiffs or other parties 23 are necessary for this, but I think you can all figure out a 24 way to proceed. And I have spelled out in this outline some of 25 the functions that you will have as liaison counsel: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 29K7marc 1 Communications between the court and attorneys on each side; 2 receiving and distributing notices; simplifying the service 3 procedure, because only liaison counsel needs to be served. I 4 guess the government and liaison counsel needs to be served. 5 And you can depend on liaison counsel to effect service within 6 the group. 7 I have talked about a motion. That might also be a 8 point for liaison counsel in that regard in that there is 9 responsibility that has been allocated so that we have a brief 10 from each side and not a profusion of briefs from each side. 11 There is a responsibility for convening meetings of the group, 12 of identifying subcommittees and committees, giving proper 13 notice to the court, scheduling conflicts that have to be 14 resolved and so on, and it may be that you might each want to 15 post your own web page as well as an easy method of doing that. 16 And, again, on both sides I think you have to figure 17 out right away whether the fees and expenses are to be absorbed 18 or shared in some fashion. 19 In subsection E I talk about motion counsel, and I 20 think you have been very good in organizing yourselves up to 21 now and presenting -- although we haven't had very difficult 22 motions -- but again we are going to want a consolidation of 23 effort before it comes to me, submission of one brief per side 24 and allocation of responsibility, who may argue for each side. 25 I suggest later on that by October 7 I should have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 29K7marc 1 orders from both sides in a single order that will deal with 2 all these liaison and other kinds of administrative functions, 3 which means that you need, Mr. Moller and Mr. Podesta to agree 4 on interim dates so that on or before August 7 I get the 5 submission. If there are disputes, follow my procedure where 6 in the single document present the alternative clauses that 7 reflect your dispute with a single letter that reflects 8 different points of view. I think you are familiar with this 9 Rule 2E of my chambers rules as a model, but to avoid the 10 constant sequencing of letters and never knowing what is the 11 last letter coming in I require that there be a single letter 12 that reflects what the points are of the dispute and 13 alternative paragraphs in a single document that does the same 14 thing. 15 Miss Popp suggested that it might be more practical 16 that we have a submission from each side, but I don't think so. 17 I can deal with alternatives within a group as well, and really 18 I'm looking forward to a master organizational plan for the 19 case that encompasses everything, so I do want a single 20 submission at the end of the day. If it's too difficult to do, 21 let me know and I will adjust, but let's target a single 22 submission. 23 Alright. 1G, third page, suggests the material rules. 24 We are not a law firm. We have a single fax machine. We have 25 300 other cases that also have to deal with communications back SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 29K7marc 1 and forth, so I have to impose these rules and depend on you 2 for conforming to these rules. Limit those who call. Unless 3 it's not possible, only liaison counsel should call. I don't 4 believe in absolutes. I don't believe in rules without 5 exceptions, and I am going to depend on your own good judgment 6 and common sense in terms of your call, so if one of you is not 7 a liaison counsel and needs to call, call, but please 8 discipline yourselves. 9 With written communications and the limitations of our 10 fax machine, please observe the rules I have set out on 11 subparagraphs B, C and D. Have in mind when you submit 12 documents -- and I require courtesy copies -- that we need to 13 limit the traffic coming to chambers. Everything gets 14 submitted what floor, Nancy? 15 MS. WONG: Courtesy copies you can give to the clerk. 16 There is no need for you to come to chambers to leave a copy 17 for me unless it's very, very urgent. The marshal will yell at 18 me. 19 THE COURT: Okay, Nancy. So that covers it all. I 20 need courtesy copies of filed documents, because it takes 21 longer time, and the courtesy copies also go to the clerk's 22 office, and leave yourself a day or so before they come. If 23 you need to come to chambers because there is not time, call 24 Ms. Wong first and get permission so she can expect you. 25 I know there will be times when you will be working SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 29K7marc 1 up to the last minute and you will want to get these to me 2 before an argument, so just call her up and you can bring it 3 directly to chambers, but, please, you have to discipline 4 yourselves. It is very hard to run this and give service to 5 all the cases. 6 G2 deals with my need to communicate with you. Again, 7 I want to deal with liaison counsel. I want to relieve 8 Mr. Alter of his offer the last time of having to effect 9 delivery on everybody. Have in mind the web site that's been 10 set up by the court. We are going to get a separate web site 11 for this case. I don't know if we have set it up yet, but we 12 will set it up and give you notice of it so that there will be 13 separate notifications on a special web site devoted to this 14 case. Those of you who are not computer literate, get a 15 colleague who is computer literate, because that's where we are 16 going to file. We are going to start working with e-mails. I 17 am not allowed to give you my e-mail address. I am told it may 18 be a separate page on the court web site, if not a separate 19 site. But we will work that out and let you know. 20 You can't give me normal notification by e-mail. It 21 has to be by fax or the same way until we change that. But we 22 are going to explore that, because e-mail notification is much 23 simpler. It is a more effective way for all of us. 24 We are on the next page. Because of the peculiar way 25 that the Victim Compensation Fund and the opportunity for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 29K7marc 1 litigation have been set up, and the inconsistency of going 2 both ways at the same time, we need to explore a number of 3 unique situations. There is at least one victim on whose 4 behalf there has been both a lawsuit and a claim to the Victim 5 Compensation Fund, with different representatives, different 6 for the case and different for the claim. I don't believe 7 that's appropriate, and I am going to depend on the defendants 8 to police these things and where appropriate to make 9 appropriate motions and get them to us. We can't set ourselves 10 up as having administrative functions that deal with these 11 sorts of things. 12 And there is also one situation where we have notice 13 where different lawyers are representing the same victim. We 14 have two lawsuits in that situation. Again, I am going to 15 depend on the defendants who are affected to deal with this. 16 I want to advise you again that we will not be 17 checking whether proper notices of claim have been submitted to 18 the Port Authority. We are not going to be checking on whether 19 proofs of service have been filed with the Port Authority. I 20 have issued an order today which provides for the suspense of 21 each of the claims against the Port Authority, save only for 22 the filing of the proofs of service. And this is a suspense 23 only where the Port Authority is a defendant and the only 24 defendant. As I have said before, where a plaintiff has tried 25 to sue an airline or a security company and the Port Authority, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 29K7marc 1 that won't be allowed to happen and there is going to have to 2 be a choice. Mr. Nolan? 3 MR. NOLAN: Yes. Are you saying if we only filed 4 against the Port Authority we must serve the Port Authority if 5 we want it to be a suspended case? 6 THE COURT: Yes. I provide it that way because I 7 contemplated that there may be a number of cases where the 8 clients and the lawyers decide we don't want to stay in this 9 court and proceed, and I therefore wanted to avoid another 10 delay after that. So, I want you to effect your service. If 11 the Port Authority wishes to make any motions, they can, but 12 they are not required to. At this time the case is in 13 suspense. 14 In II entitled "Scheduling," I don't want to impose 15 all these dates. What I do want is to have dates that are 16 realistic. I don't want to have motions to extend these dates. 17 It is going to be too difficult administratively to deal with 18 that, so I thought these would be realistic dates, and I 19 suggest them: 20 October 7 for finalization and an order for the 21 formation of committees and subcommittees. We then have to 22 close the pleadings. I propose that until October 18 that can 23 be done without a motion. After that there will have to be 24 motions. There will be a round for third-party complaints and 25 cross complaints. If done before November 18, there will not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 29K7marc 1 be a motion. 2 Now I contemplate -- and I guess we didn't do this 3 when we drafted this -- that there may be fourth-party 4 complaints arising out of the service of third-party 5 complaints. If that's the case, we will have to deal with it 6 at the next conference. If there are tolling agreements, work 7 them out and get those out hopefully before October 18, because 8 I am going to want the third-party pleading practice to be 9 accomplished in a month between October 18 and November 18. 10 After all the pleadings close -- which hopefully will 11 be soon after November 18 -- I am not contemplating answers and 12 replies to the third-party complaints. They will come in as a 13 matter of course, but I'm anxious because this will be a key 14 step in moving this case forward, that there be a filing of 15 master pleadings, master complaints by December 15, and these 16 master complaints will name all plaintiffs, all defendants, 17 identify the theories, identify the parties. In other words, 18 there will be one document that will control and neither the 19 court or any of the parties will have to go and work through 20 numbers of documents to see what is current and what is not, 21 who is involved, who is not and so on. 22 One problem about having a master complaint is it can 23 grow to enormous length, and one way of cutting that down is to 24 limit the allegations in the master complaint to those that are 25 bare bones, just identify the parties and the theories. Since SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 29K7marc 1 you have already filed complaints, you have already satisfied, 2 I suppose, whatever requirements there are for detail, and 3 there are very few in the Federal Rules of Civil Procedure, so 4 I don't think it is going to be necessary in the master 5 complaint to do anything more than be very sketchy and bare 6 bones. And that way we can I think have a more useful 7 document. I am going to leave it to you. 8 The date I propose for filing these master pleadings 9 will be December 15, and I think both sides can do it 10 simultaneously, since you already know all the issues that will 11 be involved. I don't contemplate that any new issues will come 12 out of these master complaints. They shouldn't. They should 13 just be a summary document. 14 I then propose preliminary motion practice. Mr. Alter 15 has raised the point that until there is a delineation of 16 issues and the possible elimination of parties that are not 17 proper to this litigation the government does not want to 18 release anything that is even arguably sensitive. I think he 19 has a good point and for other purposes as well, especially 20 economy, because no one wants to be a party here and go through 21 all the expense of being a party if there is not a legally 22 sufficient claim. I think it is important that we do this 23 motion practice to define issues, eliminate arguably legally 24 insufficient claims, eliminate parties who are not necessarily 25 here, where there is an acceptance of responsibility from one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 29K7marc 1 defendant or another. We can effect streamlining in that 2 fashion and we can do a lot of things that will streamline this 3 to some degree. So, I provide for this preliminary motion 4 practice with a filing date for the motions January 20, 5 opposition by February 3 and replies by February 10. I will 6 set a hearing date soon after that, and hopefully that will 7 deal with that issue. 8 I don't like to have cross motions. You know you can 9 make a motion. If you know you are going to make a motion, 10 file it by January 20. I will be looking askance at any cross 11 motions, because I don't think there is any need for them. 12 That brings us to discovery. That's part E on this 13 document. Mr. Alter, in your submission you have postponed the 14 need for security clearances until much later. I think you 15 have postponed it to this point, but we have been eating up a 16 great deal of time in this organizational schedule and it will 17 likely be five or six months before we get into discovery. I 18 was hoping that security clearances, because they will take 19 some time, can be accomplished before then. 20 MR. ALTER: Your Honor, it would be my hope and 21 endeavor to work with the committees for either side to see 22 whether in fact we could identify a mutually agreeable number 23 of attorneys who might be cleared under that process, and I do 24 think that if we can reach that agreement it may go forward at 25 some time that the court has identified. I just hasten to add SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 29K7marc 1 two points really. Perhaps the court is getting to it, so I 2 may be jumping the gun a little bit. 3 But, first, in endeavoring to facilitate the process 4 in that way, I just want to be clear that the government at 5 this point does not concede that actual discovery and 6 disclosure of materials through the process will be necessarily 7 effectuated. We don't know what materials will be at issue at 8 that point in time, and I think that relates to my second point 9 which is central to the TSA's concerns and proposals, the 10 notions of SSI substitutes, and to the extent that we can come 11 to agreement with I think representatives from both sides that 12 SSI substitutes are appropriate and may in fact take the place 13 of actual SSI material that may also narrow the need for 14 clearance procedure. 15 THE COURT: Inevitably there are going to have to be 16 clearances, and I want the security clearances to occur before 17 the issue of who may get what document arises, because 18 otherwise we will have another two-month delay. 19 MR. ALTER: I fully understand, and my response is 20 that we will work to do that so that there will be no delay. I 21 just want to set the marker that -- and I do this only because 22 we are operating in a vacuum -- that while the TSA's policy is 23 that disclosure -- which would require clearance -- is a 24 possibility, it is a possibility of last resort, so again I 25 just lay it as a marker. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 29K7marc 1 THE COURT: Yes, I agree, but, look, part of our job 2 as litigators is to see the dark side. In this case the dark 3 side is the side that you don't want to show, your client 4 doesn't want to show, and the parties want to see. Inevitably 5 we are going to have that. It is going to happen, and we might 6 as well be prepared for it in advance. I understand that it 7 entails expense and time on the part of the government, but 8 we're not going to have much of a savings of money or time if 9 we wait. We are just going to have delay. So, I do think -- 10 and I don't want to put it in an order -- but it is my very 11 strong suggestion that we get it done before December. 12 MR. ALTER: As I said, your Honor, I am very happy to 13 work with the parties to determine a set of people. Just to 14 emphasize that neither money nor time is really the concern, 15 because the government is here to expend whatever resources are 16 necessary to maintain the safety of the traveling public. 17 THE COURT: Okay. That issue, which is a paramount 18 issue, may conflict with another paramount issue which is 19 speedy justice to those who have decided to present claims to 20 this court. Due process requires me to regulate both 21 interests, and my purpose in doing that is to make sure that 22 justice is done here without compromise to the safety needs of 23 the traveling public. And with due respect to the expert 24 determinations by those who are in a better position to know 25 than I am, it is going to be very difficult. I think I have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 29K7marc 1 said enough on this. I don't need to repeat myself. 2 MR. ALTER: We fully appreciate that and are looking 3 forward to facilitating that process. 4 MR. MOLLER: Your Honor, we will work with Mr. Alter 5 and accelerate the process to the greatest extent possible. 6 THE COURT: And both sides need to do that. Let me 7 tell you what I think we should have. I don't know if it's 8 possible to have general access parameters set by October 28. 9 We picked up that criterion from your document, Mr. Alter, and 10 I kind of distrust generalities in this regard here. The 11 regulations set out lots of parameters and I am not sure we can 12 do anything more than just repeat them if we were to have some 13 more parameters here. You will each please become familiar 14 with 49 U.S.C., Section 40119, titled security and research and 15 development activities, and with Code of Federal Regulations 59 16 CFR in the 1520 series, so that you appreciate Mr. Alter's 17 concerns. And only by appreciating Mr. Alter's concerns will 18 you be able to work cooperatively with him in developing what 19 is best. If there are any other parameters, I suggest you 20 present these by October 28. I am not sure that there needs to 21 be in this, and I think the more important thing is to begin 22 the methodology for security clearances. 23 THE WITNESS: So to that extent I am amending what we 24 have down on the agenda under II(E)(1), a lot is going to I 25 think be triggered by the interrogatories that are propounded, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 29K7marc 1 and I deal with that in subsection 2 entitled "sequence of 2 steps". I envision that after the service of the master 3 pleadings -- though I had this set for a little bit earlier 4 than that, but I think it is going to be on or about the same 5 date or somewhat after -- we are going to have the propounding 6 of interrogatories and requests for documents, and I think it 7 is in response to that that Mr. Alter is going to be activated 8 in what he has to do. I put down December 10. I think we 9 should let it go to December 31, give you a couple weeks after 10 the filing of the master claim. And I am following the 11 methodology of the Manual for Complex Litigation, limiting 12 interrogatories to identify witnesses and documents and 13 requiring production. And January 31 will be the opposition 14 date, that's a 30-day period. Defendants, please do not wait 15 until then. Start getting yourselves ready, because I want to 16 move quickly through this phase into the problems that will 17 come after that in terms of motions to limit the scope of 18 requests and particularly motions to deal with the SSI 19 material. These are proposed dates, and when the order is 20 submitted if other dates commend themselves to you as more 21 intelligent, feel free to change them. 22 But what I envision is that in another month -- and I 23 think we can cut done that date -- there will be motions to 24 limit various requests. I don't believe there are going to be 25 any motions that are necessary to limit the scope of requests SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 29K7marc 1 in this case. I think the major effort is going to have to 2 deal with what might be substitutes for sensitive information, 3 sufficiency of those substitutes and other issues. But for 4 whatever it is worth in 2(B)(1) I have suggested some target 5 dates for motions with regard to discovery. 6 As you see, I am contemplating that April and May are 7 the dates for responses to interrogatories and production of 8 documents. It would make me happier if those dates can be 9 accelerated, and if that makes sense, by all means provide it. 10 Fixing of depositions, schedules of depositions, tiers 11 of depositions and the like will await another conference. 12 The only other issue I presented here is the formation 13 of document depositories. It would not be too early to 14 identify them and set them up, even though I think it is going 15 to take some longer period for them to start getting organized 16 with librarians and registers and other kinds of thing. We 17 should have a uniformed numbering system that would identify 18 the party who makes the discovery and some sequence of 19 numberings, and they should be worked out within the sides and 20 between the sides. 21 That completes the agenda I have set out. Is there 22 anyone that wants to suggest anything additional? 23 MR. MOTLEY: May it please the court. 24 THE COURT: Yes, Mr. Motley. 25 MR. MOTLEY: Your Honor has indicated that you will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 29K7marc 1 not be dealing with the hijacker-flowing participant cases and 2 I don't know whether your Honor is aware but there are cases 3 pending in Washington federal court and I believe now three 4 cases that have been filed in New York. 5 THE COURT: I have seen three cases in New York. I 6 don't know about the Washington cases. 7 MR. MOTLEY: Yes, sir, they are filed. So-called 8 terrorist cases are filed. The initial ones were filed in 9 Washington D.C. My question to your Honor is do you have any 10 idea when we might know who is assigned to handle terrorist 11 cases? Because we have an unanimity of opinions among the 12 plaintiffs' lawyers. 13 THE COURT: I don't know. It's in the wheel, and 14 where it comes out, I don't know, and when the wheel will be 15 spun. 16 MR. MOTLEY: Okay. Thank you. 17 MR. PODESTA: Your Honor, as I understand it, on the 18 scheduling, the plaintiffs and defense committees are supposed 19 to get together and submit a joint letter to your Honor. I 20 just want you to know I have been handed a number of notes on 21 some of these dates by defendants. 22 THE COURT: Let me do this, let's split this. The 23 order that I want by October 7, just deal with the organization 24 of groups. By October 21 submit a joint discovery plan that 25 encompasses the points we have discussed here. And that leaves SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 29K7marc 1 for a future meeting the issues of depositions and the like. 2 MR. PODESTA: And I think the defendants have some 3 issues with respect to the pleading schedule. For example, 4 motion practice is set up, I believe, for one month, 5 approximately one month after the master pleadings with 6 intervening Christmas holidays, and it takes longer if we are 7 to comply with your Honor's directive that we file one brief 8 that's joined in by all defendants with a similar interest. I 9 know from experience in other litigation that it takes less 10 time to have individual defendants file their own briefs and it 11 takes longer time to get defendants to agreement. 12 THE COURT: Mr. Podesta, why don't you handle it in 13 the conference and make a reasonable suggestion and work it out 14 with Mr. Moller. 15 MR. PODESTA: I will. 16 THE COURT: And I will be receptive. I understand 17 both points you make. They are accurate. 18 MR. PODESTA: One other question by way of 19 clarification. After the master complaints have been filed, 20 does the court contemplate that future plaintiffs -- of whom 21 there will presumably be a substantial number -- will simply 22 join the master complaints and no longer file individual 23 complaints other than identifying themselves, or is that 24 something we should work out between? 25 THE COURT: I think they should file individual SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 29K7marc 1 complaints and then be subsumed by amendments to the master 2 complaint. 3 The individual complaints have an important 4 jurisdictional function, that you should not lose by the quest 5 for efficiency. 6 What do you think for the next conference, folks? 7 MR. MOLLER: I would suggest, your Honor, after the 8 joint discovery plan has been submitted, I am a little bit 9 confused. On the October 7 date you would like to know what 10 constitutes the committee and the subcommittees, and the joint 11 discovery plan October 21. 12 THE COURT: Yes. 13 MR. MOLLER: We have a meeting with the court, a 14 further conference after October 21. Either at the end of the 15 month or the beginning of November. We could then have the 16 court's guidance on the discovery plan if you have any 17 suggestions to make and we can move forward from there. 18 THE COURT: When did I say that discovery plan should 19 be submitted? 20 MR. MOLLER: October 21. 21 THE COURT: No, those are the dates. But the actual 22 discovery request? It could not come until December. 23 Why don't we schedule early November with the thought 24 that if there is not a need, we could adjourn it. 25 MR. MOLLER: That's fine. Would the first week in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 29K7marc 1 November be convenient for the court? 2 THE COURT: November 1 at 2 o'clock. Is 2 o'clock a 3 good time for everybody? 2:30. 2:15. 4 I observe the Sabbath and the days are very short. 5 My fall seems to begin one hour after sunrise. So, 2:15 6 November 1. 7 MR. PODESTA: Your Honor, I hate to keep rising on 8 this, but I am getting a number of questions from defendants. 9 I take it -- 10 THE COURT: No, before we break, I would like you all 11 to caucus and see if we have anything to do, so I don't mind, 12 Mr. Podesta. 13 MR. PODESTA: There are issues arising such as answers 14 to individual complaints. Do we really need to file them in 15 appending individual complaints when we are shortly going to 16 have a master complaint? Is that something we should try to 17 work out? 18 THE COURT: I think it is a good idea to answer, 19 because there are different groups and different defendants, 20 and they may have different denials and answers. It may be 21 that the master answer will be a more difficult document to 22 create than the master complaint, and it may be that the master 23 answer can be some kind of a spread sheet that shows the 24 different groups and how they have denied answer. I think it 25 is probably useful to have individual answers, because it would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 29K7marc 1 make it easier to summarize to a master pleading. 2 MR. PODESTA: I presume the master answer -- your 3 Honor indicated the master answer and the master complaint 4 would be filed on the same day. I presume that would be 5 difficult. 6 THE COURT: Well, if it is only summary on both it is 7 not, but I take your point, so give yourself another week or 8 two. 9 MR. PODESTA: Alright, thank you. And one other 10 question that has been posed is with respect to the pending 11 complaints. I know there are some defendants, for example, at 12 Newark Airport, who believe that the allegations against them 13 are based on factual misunderstanding. They weren't in the 14 terminal. They didn't have shared security arrangements. 15 Noncarrier airline defendants. And I believe that some of 16 those defendants, if required to respond to the complaint 17 before the master complaint, would be filing motions before 18 your Honor this fall before the master answers are filed, 19 unless we can work out the voluntary dismissals with the 20 plaintiffs. So, I just don't know how you want us to proceed 21 with that. Should we make suggestions in the letters, in the 22 joint letter to the court, or -- 23 THE COURT: I don't envision that much time or expense 24 is going to be used up in this case proportional to the parties 25 if they wait until the date assigned for making motions. It SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 29K7marc 1 would be useful, I think, to collect them all together. I also 2 suspect that it would be easier for the plaintiffs to agree to 3 voluntary dismissals once they see the universe of players. So 4 I would urge that these kinds of motions be deferred in an 5 answer that saves whatever concerns you have with regard to 6 waiver so there is no waiver. I think we can do it more 7 efficiently if we defer it. So, they should wait, but that 8 doesn't mean that there should not be discussions going on. 9 Sir, you want to make a comment? Please identify 10 yourself. 11 MR. JOSEPH: Charles Joseph. I want to mention on 12 2:15 on Friday, November 1st, it might be getting pretty late 13 and I wonder if it's possible to get -- 14 THE COURT: Do you have any idea when sundown is? 15 MR. JOSEPH: I do. 16 THE COURT: It's now 3:30. We are not going to take 17 up more time. I think we can take that risk, and if there is a 18 concern, Mr. Joseph, you want to make it earlier, remind me. 19 It will be more efficient. It's not just arbitrary. Monday 20 through Thursday are days that I devote to trial time, and even 21 though I may not have a trial going I can't know that in 22 advance, so I don't want to do this on Mondays through 23 Thursdays. The nature of people's travel times and 24 involvements make it difficult to do it before or after the 25 trial day Monday through Thursday. I have conferences in all SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 29K7marc 1 my other cases and sentencings Friday morning. I really don't 2 have the ability to schedule this other than on Friday 3 afternoon. So I apologize to you and I will ask you to 4 apologize to your family. 5 Anything else? Thank you all for attending. Do you 6 want to caucus first to see if there is anything else you want 7 to bring up? 8 MR. MOLLER: Can we have 15 minute? 9 THE COURT: Well, take less. 10 (Recess) 11 THE COURT: I am here too say have a good rest of the 12 day. Thank you for your cooperation. 13 (Adjourned to November 1, 2002 at 2:15 p.m.) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300