1 39QL9_11C 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 IN RE: 4 SEPTEMBER 11 LITIGATION 21 MC 97 (AKH) 5 ------------------------------x 5 6 New York, N.Y. 6 September 26, 2003 7 9:30 a.m. 7 8 Before: 8 9 HON. ALVIN K. HELLERSTEIN, 9 10 District Judge 10 11 APPEARANCES 11 12 KREINDLER & KREINDLER 12 Attorneys for Plaintiffs 13 BY: MARC S. MOLLER 13 BRIAN J. ALEXANDER 14 DENNIS J. NOLAN 14 JAMES P. KREINDLER 15 15 BAUMEISTER & SAMUELS, P.C. 16 Attorneys for Plaintiffs 16 BY: MICHAEL F. BAUMEISTER 17 17 BAUM, HEDLUND, ARISTEI, GUILFORD & SCHIAVO 18 Attorneys for Plaintiff Vadah, et al. 18 BY: JOHN GREAVES 19 MARY SCHIAVO 19 20 HANLY & CONROY, LLP 20 Attorneys for Plaintiffs 21 BY: PAUL J. HANLY, JR. 21 JAYNE CONROY 22 22 HALE and DOOR, LLP 23 Attorneys for Plaintiff Lewin 23 BY: JOANNE L. MONTEAVARO 24 24 THE BRUALDI LAW FIRM 25 Attorneys for Plaintiff Rothenberg 25 BY: KEVIN O'BRIEN SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 39QL9_11C 1 Appearances (cont.): 2 ZIMBLE & BRETTLER, LLP 2 Attorneys for Plaintiff Peters 3 BY: CHARLES CAPACE 3 ANTON REINERT 4 4 MOTLEY, RICE, LLC 5 Attorneys for Plaintiffs 5 BY: RONALD L. MOTLEY 6 6 UNITED STATES ATTORNEY'S OFFICE 7 BY: BETH E. GOLDMAN, AUSA 7 SARAH NORMAND, AUSA 8 8 CONDON & FORSYTH 9 Attorneys for Defendant American Airlines 9 BY: DESMOND T. BARRY 10 MORGAN HEYER 10 11 DEBEVOISE & PLIMPTON 11 Attorneys for Defendant American Airlines 12 BY: ROGER E. PODESTA 12 13 ST. JOHN & WAYNE, LLC 13 Attorneys for Defendants 14 Continental Airlines and America West 14 BY: PETER B. VAN DEVENTER, JR. 15 15 ROPES & GRAY, LLP 16 Attorneys for Defendant The Boeing Company 16 BY: WILLIAM SUSSMAN 17 17 PERKINS, COIE, LLP 18 Attorneys for Defendant The Boeing Company 18 BY: THOMAS J. McLAUGHLIN 19 19 QUIRK & BAKALOR 20 Attorneys for Defendant United Airlines 20 BY: MICHAEL R. FEAGLEY 21 JEFFREY J. ELLIS 21 22 O'MELVENY & MYERS 22 Attorneys for Defendants 23 Massport and all airport operators 23 BY: MARK WOOD 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 39QL9_11C 1 Appearances (cont.): 2 FLEMMING, ZULACK & WILLIAMSON 2 Attorneys for Defendant 3 The Port Authority, et al. 3 BY: RICHARD A. WILLIAMSON 4 BRADFORD STEIN 4 JASON COHEN 5 5 RICHARD P. CAMPBELL 6 Attorney for Defendant U.S. Airways 6 7 CONNELL, FOLEY 7 Attorneys for Defendant Colgan Air 8 BY: JEFFREY W. MORYAN 8 9 MILBER, MAKRIS, PLOUSADIS & SEIDEN 9 Attorneys for Defendant Skilling Ward 10 BY: MARISA LANZA 10 11 WARDEN, TRIPLETT, GRIER 11 Attorneys for Defendant 12 Certain Underwriters Lloyds of London, et al. 12 BY: TIMOTHY W. TRIPLETT 13 MICHAEL J. KUCKELMAN 13 14 JONES, HIRSCH, CONNORS & BULL, P.C. 14 Attorneys for Defendant Globe Aviation 15 BY: JAMES P. CONNORS 15 16 16 17 18 19 20 21 CONFERENCE 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 39QL9_11C Conference 1 THE COURT: Good morning, everybody. 2 COUNSEL: Good morning, your Honor. 3 THE COURT: I hope everyone has an agenda, which was 4 proposed to me by the good work of plaintiffs' counsel and 5 defendants' counsel and was intended to allow discussion of 6 anything that any of the counsel thought was appropriate to be 7 discussed. If there's anyone that has any additional items, 8 feel free to suggest those at the end of the discussion. Since 9 there are a lot of people in the room, if you wish to say 10 something, please identify yourself before you speak. 11 The first item on the agenda has to do so with the 12 proposals by the defendants that I amend my September 9, 2003, 13 order to authorize interlocutory appeals to the Second Circuit. 14 We're working on that and we hope to have a decision soon. And 15 that's all I can tell you. 16 Second is the status of the various pleadings. 17 Mr. Moller, do you wish to address that? 18 MR. MOLLER: I believe it would be appropriate for 19 Mr. Barry to address that. 20 MR. BARRY: Desmond Barry. I have given a sheet of 21 the status of the pleadings to Ms. Park, and I've given some 22 out to counsel so they can follow along. I thought it would be 23 somewhat helpful to the Court to see exactly where we stand 24 right now with respect to the pleadings. And it leads into a 25 discussion of some of the administrative and logistical SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 39QL9_11C Conference 1 problems that I foresee coming up rather soon in this case. 2 We have 362 actions filed. 138 have been filed before 3 your July 22nd order creating the suspense docket, and then 224 4 were filed thereafter. The total number of actions not on the 5 suspense docket are 97, and the total number of actions on the 6 suspense docket are 149. They include 57 from the Port 7 Authority suspense docket, and then 92 on the newly created 8 suspense docket. 9 There are motions pending to add -- 10 THE COURT: I'm sorry, I don't remember the 11 significance of the newly-suspended. 12 MR. BARRY: Well, your Honor, when the statute of 13 limitations was about to expire, it was suggested to you, I 14 believe by Mr. Baumeister, that we would create a new suspense 15 docket in respect to those people who wanted to file their 16 actions to protect against the expiration of a statute of 17 limitations other than New York's, which has been extended, but 18 still not waive their right to file with the Victim 19 Compensation Fund. 20 THE COURT: I recall it. 21 MR. BARRY: And motions to put 55 additional cases on 22 that suspense docket are pending before your Honor. Now, this, 23 your Honor, I must say, is what we're aware of, through using 24 courthouse news services, Westlaw, etc. 25 THE COURT: It's a dynamic activity. I signed a good SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 39QL9_11C Conference 1 many orders yesterday. 2 MR. BARRY: We can't find docket sheets for 61. 3 THE COURT: I think we granted those motions 4 yesterday. I regularly grant those motions without serious 5 consideration unless there's some objection. If there is 6 objection, I intend to deal with those objections so that 7 nothing goes on the suspense calendar if there is some problem 8 with regard to that matter. If there is a problem, my 9 preference is to deal with that problem so that we didn't have 10 the problems arising at a later time when people might want to 11 take care cases off the suspense calendar. 12 The suspense calendar is intended only to preserve the 13 December 22 date that Congress established in the Air 14 Transportation Safety and System Stabilization Act, and once 15 that date passes, there will be no further reason for a 16 suspense calendar. It will be my intention rapidly to deal 17 with the suspense calendar after that date and eliminate it. 18 On the point that you just raised, Mr. Barry, there 19 are 61 cases for which no docket entry can be found? 20 MR. BARRY: Correct. 21 THE COURT: The docketing of the Court has been slow 22 and is behind. I didn't know it was two weeks behind, but it 23 will catch up, and I think within a relatively short period of 24 time, that 61-case discrepancy will be accounted for. 25 MR. BARRY: I'm sure, your Honor. I just wanted to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 39QL9_11C Conference 1 give you an idea -- 2 THE COURT: I want to tell you how much I appreciate 3 this statistical review. It's important to keep up on this. 4 Thank you. 5 MR. BARRY: Yes, sir. We have, your Honor, covered at 6 item Number 6, multiple filings involving 60, approximately, 7 plaintiffs for which there are at least two separate complaints 8 on file. And this raises, of course, issues where I'm going to 9 recommend to the Court that in respect to those cases where 10 there are multiple filings, that those plaintiffs' counsel move 11 to amend their complaint with the lowest number case to add 12 whatever additional parties they have named as defendants or 13 plaintiffs, and whatever additional causes of action. 14 THE COURT: I'm going to adopt that, Mr. Barry. I 15 think we don't need this extra level of administrative 16 confusion, and I take it you have a schedule of the 60 actions. 17 MR. BARRY: Yes. It's approximate right now, but we 18 do, your Honor. 19 THE COURT: When you finish it, if you could e-mail 20 that schedule to us, I will issue an order that will require 21 the plaintiffs to create one lawsuit. And if they don't do it 22 within a date they are assigned, I will dismiss the later filed 23 action. 24 MR. BARRY: Fine, your Honor. We'll do that. 25 THE COURT: So if you are one of those plaintiffs, let SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 39QL9_11C Conference 1 Mr. Barry know and take prompt steps to cure the problem. 2 MR. BARRY: Moving on to Item 7, as your Honor will 3 recall, five master complaints were filed on December 3, 2002, 4 one for each of the four flights, and then one on behalf of the 5 ground plaintiffs, property plaintiffs. There have been many 6 complaints filed after that date, individual complaints, but 7 the appendices to the master complaints which list the 8 plaintiffs who have joined in that master complaint do not 9 include these new filings. 10 We would ask that the plaintiffs prepare a new set of 11 master complaints to reflect not only the additional plaintiffs 12 who have joined since the filing of the originals and the 13 appendices, but also whatever additional causes of action they 14 have alleged and additional defense. 15 THE COURT: My suggestion is this: I think it would 16 be wasteful to keep amending the appendices, and subsequently 17 confusing. My thought is that at the beginning of January, 18 2004, we should have a new appendix, new set of appendices, 19 that bring things up-to-date, and also eliminate cases. I 20 think we should also establish a date, and perhaps we should do 21 that by the order that follows this conference. 22 Mr. Moller and Mr. Barry, I'll assign you the task of 23 preparing that order that would cut off the date for amendments 24 so we can go forward without having to have an amendment, of 25 course. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 39QL9_11C Conference 1 I have, in a few instances, been asked by plaintiffs 2 if they could simply incorporate the master complaint into 3 their new pleading. I have denied that. Every plaintiff has 4 to have his or her own pleading or incorporate themselves into 5 some kind of consolidated pleading. The subsequent will be 6 comprehended by the master complaint. So there will be no free 7 rides on master complaints, and on the date that I think we 8 should set, there will be a fixed set of master complaints. It 9 may be that the plaintiffs may also want to amend up to a 10 certain point in time. 11 What are your thoughts, plaintiffs and defendants? 12 When should a reasonable cutoff date be established and when 13 would it be appropriate to file a new set of appendices which 14 we'll consider as fixed? 15 MR. BARRY: I'll leave that to Mr. Moller, your Honor. 16 I think you mentioned January? 17 THE COURT: Well, I thought of January because it 18 follows December 22, 2003. 19 MR. BARRY: That's what I thought your rationale was, 20 and that's fine with the defendant. I think. 21 MR. MOLLER: It leaves something out, and that is, I 22 believe, that the amendment of the master complaint -- 23 THE COURT: Can you all hear Mr. Moller in the back. 24 COUNSEL: No. 25 MR. MOLLER: I'm sorry. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 39QL9_11C Conference 1 THE COURT: Mr. Moller, can I ask you to take the 2 podium? 3 MR. MOLLER: Sure. 4 THE COURT: I know there's a lot of people here that 5 want to keep up with things. I suspect there are members of 6 press that are also involved. I want this to be understood by 7 all who come here, so if anyone can't hear or can't understand, 8 please identify yourself. We'll endeavor to clarify things. 9 MR. MOLLER: Your Honor, I'd like to suggest that the 10 amendment of the master complaints be after anybody who wishes 11 to commence a lawsuit does so, and that would be coterminous 12 with the extended statute of limitations in New York, which is 13 March. I think to do it earlier -- if we were to pick a date, 14 for example, of January 31 and somebody files a pleading in 15 February or March with different allegations, we'd be amending 16 the master again. If the purpose of the master is to embrace 17 whatever allegations are asserted in the pleadings, I think 18 that's the safest thing. 19 I'm in complete agreement that for the Court's 20 benefit, that the appendices should be prepared and submitted 21 after the deadline for filing VCF claims. Because then the 22 universe of -- 23 THE COURT: VCF is Victim Compensation Fund. 24 MR. MOLLER: Victim compensation -- I'm sorry. Will 25 be pretty well-defined. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 39QL9_11C Conference 1 THE COURT: I feel that -- Mr. Barry? 2 MR. BARRY: I was just going to say, we have no 3 objection to extending the time until after the extension of 4 the New York statute. I think that makes sense. 5 THE COURT: I'll accept that, provided that it does 6 not affect discovery. 7 MR. MOLLER: Exactly. That's a stipulation we'd like 8 to have carried through a lot of issues that are going to be 9 raised today. 10 THE COURT: The state legislature has enlarged the 11 time to file, and other states may follow. For example, 12 New Jersey. There are two interests that are involved, and 13 they clash to some degree. One interest is to enable people 14 who want to sue to be able to do so without fear that the 15 statute of limitations will bar their actions. The second, 16 however, is the interest of the people who have sued and who 17 are dedicated to the lawsuit, to be able to make progress with 18 the lawsuit. I don't think it fair to slow up progress in the 19 interest of having an environment that is hospitable to those 20 who file later. So I intend to go forward as best we can. 21 If you feel that you can't practically or don't want 22 to file a master complaint amendment until after the field is 23 known, I'll accept that. 24 MR. MOLLER: I suggest, for purposes of the master 25 complaint, to me at least, that makes sense. There is nothing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 39QL9_11C Conference 1 that we want more as plaintiffs than to get going on discovery 2 at as accelerated a pace as possible. And nothing that we 3 suggest this morning is intended to contradict that. 4 THE COURT: All right. So we'll not require -- let me 5 put it this way: In the beginning of January, I would like to 6 have a revised appendix, as of the date that you revise it. 7 And that will incorporate changes that are made in response to 8 the barred date of the Victim Compensation Fund. 9 The time to amend the master complaint to comprehend 10 all individual complaints will be enlarged until after the 11 New York statute of limitations limit. So you suggest both 12 those dates in the consent order that you propose. 13 MR. MOLLER: Fine, that's fine. 14 THE COURT: All right, now, let's take up, Mr. Barry, 15 the third bullet under Paragraph 7. 16 MR. BARRY: Yes, your Honor. We're coming to the -- 17 to my nightmare bullets, and that is the addition of 18 approximately 46 new defendants into this litigation. Since 19 July 22nd, plaintiffs have filed 43 amended complaints which 20 add both new defendants and new theories of liability. I have 21 grouped together on the bottom of the page the groups of these 22 defendants. 23 I also have sent to Ms. Park this morning a list of 24 the names of these additional defendants, which takes up two 25 pages. These complaints have allegations against the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 39QL9_11C Conference 1 defendants that are not in the master complaints; against 2 defendants who have not been served with process. It is going 3 to be a logistical nightmare for them to get representation, 4 Number 1, since I might add that many of them were our current 5 clients or former clients, at least the airline defendant. 6 I've talked to Mr. Moller on a few occasions about the problems 7 created by this. I don't see how it can do anything but delay 8 the entire process of this litigation and the discovery that 9 Mr. Moller so strongly wants to get on with. I have suggested 10 to him that perhaps there can be some way to put the newly 11 filed actions, either by amended complaints or -- which are 43, 12 or the 16 new actions which name all these defendants, into 13 some separate track, suspense calendar -- I don't know. 14 Unfortunately, your Honor, I'm bringing you a problem 15 without a solution. And I can -- I'm sure you can imagine that 16 I'm going to have to get an amphitheater for the defense 17 counsel meetings once all these different defendants are 18 served, and I don't think, at least as far as I know from 19 talking to Mr. Moller this morning, that he has any ready 20 solution to the problem 21 MR. MOLLER: I don't have a perfect solution, but let 22 me just comment on what Mr. Barry said. First, the theories 23 are really not new. The Court will recall that at the 24 beginning of the litigation, we -- 25 THE COURT: Excuse me, are there any seats to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 39QL9_11C Conference 1 accommodate those who are standing? There's a seat up here; 2 there's two seats here. 3 (Pause in proceeding) 4 THE COURT: Okay, good. 5 MR. MOLLER: When the case started, there were 6 security companies and the parent companies of security 7 companies. I'll give you this as an example: We decided not 8 to involve all the original named defendants because it wasn't 9 necessary to have them in the case for you to be able to review 10 and decide the duty issue. The 30 non-carrier airlines are in 11 the case because we believe that there is good reason to 12 believe that the non-carrier airlines shared or independently 13 conducted or were responsible for security operations which 14 affected the airports from which these various airlines 15 departed. We don't know yet for certain which carriers were, 16 in fact -- or indeed, if any -- will satisfy the suspicion that 17 we have. However, we can't dismiss the non-carrier airlines or 18 just disregard them. 19 What we need is some very limited discovery of the 30 20 non-carrier airlines, which can be done by interrogatory, to 21 find out whether they had a responsibility at the different 22 airports that were -- that are involved in this lawsuit: 23 Dulles, Newark, Logan and Portland. I believe that, having 24 discussed this with the plaintiffs' committee yesterday, we 25 have no desire to complicate this lawsuit; we want it to be as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 39QL9_11C Conference 1 streamlined as possible. But at the same time, we can't leave 2 parties out that have a role in the security functions. 3 If -- and I can represent this to the Court -- if, 4 after we receive answers to those interrogatories, using common 5 sense, the plaintiffs' committee believes that a named airline 6 is not involved in the security functions relating to 7 September 11th, we will discontinue them. But we need 8 something to protect the record and ensure that we haven't left 9 the critical party out, because otherwise, there will be 10 potentially finger-pointing to an empty chair. 11 THE COURT: Let move onto the next category: Security 12 screening companies. 13 MR. MOLLER: In public hearing -- 14 THE COURT: Mr. Barry, you or your colleagues can 15 respond to that momentarily. 16 MR. BARRY: Thank you. 17 MR. MOLLER: I'm informed -- I haven't read this 18 myself, but I'm informed that in government hearings, 19 government-sponsored hearings, it has been disclosed that 20 screening equipment did not perform up to the performance 21 specifications that the FAA had set in concert with the 22 airlines. Therefore, we would like to find out from the 23 security equipment manufacturers, who, in fact, manufactured 24 the equipment at the several airports, what the specs were, how 25 they performed and what testing was done. That becomes quite SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 39QL9_11C Conference 1 crucial to establish how contraband, how weapons or box cutters 2 or guns got on the airplanes. 3 THE COURT: That would go to the negligence of other 4 defendants who did the screening? 5 MR. MOLLER: But who had -- 6 THE COURT: Might go. 7 MR. MOLLER: But who had a shared responsibility with 8 United, etc., and American. 9 THE COURT: So at this point you're not at the point 10 where you know what really happened and who's responsible. 11 MR. MOLLER: We're stuck. And I agree with Mr. Barry 12 that we have a logistical problem. 13 THE COURT: I understand the point. Let's go onto the 14 building defendants. 15 MR. MOLLER: The architects and engineers. My 16 partner, Brian Alexander, can speak to that directly, but 17 architects and engineers who were involved in developing the 18 design specifications for the World Trade Center are certainly 19 relevant parties. They certainly are relevant now because if 20 you have engineering or architectural misfeasance, that is a 21 negligence claim which goes directly to the design of the World 22 Trade Center itself. 23 With respect to the Air Transport Association, they 24 worked in close concert with the airlines to develop security 25 systems and security standards and ACSSP's and screening SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 39QL9_11C Conference 1 equipment. This is not something done by the FAA and the 2 airlines in a vacuum. It's the airlines', essentially, 3 lobbying group, and it's the central vehicle with communicating 4 with the Federal Aviation Administration. 5 THE COURT: I'm sorry to cut you off. What about the 6 category of individuals? 7 MR. MOLLER: I can't speak to that because I don't 8 have immediate knowledge of who the individuals are that are 9 embraced by that item. But with respect to the four, the 10 non-carriers, security equipment, ground defendants and ATA, we 11 will not keep them in the case as soon as we're satisfied that 12 they should be let out of the case. And we're prepared, with 13 the Court's cooperation -- the Court's permission and the 14 defendants' cooperation, to set reasonable deadlines for 15 finding out whether or not those parties should properly be in 16 or out of the case. 17 That's some very limited focused discovery because the 18 issues to them are quite discrete. 19 THE COURT: Who speaks to the individuals? The two 20 individuals and 100 Does, John Does? 21 MR. MOLLER: I've never met John Doe. 22 THE COURT: There's no practical benefit of naming a 23 John Doe because it doesn't save anything with the statute of 24 limitations. It's a quirk of California pleading that's 25 brought over to New York which should have been left in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 39QL9_11C Conference 1 California with the issues of recall. 2 MR. MOLLER: He's running for governor. 3 THE COURT: I have my job for life. 4 MR. MOLLER: I don't really -- can't comment on the 5 individual members. 6 THE COURT: Who's responsible for the John Does? 7 MR. BARRY: There's nobody responsible yet, your 8 Honor, because they haven't been served. There are these two 9 people, Virginia Buckingham and Joseph Lawless, who were 10 officials with the Massachusetts Port Authority, as far as I 11 know. That's all I know. 12 THE COURT: No one has responsibility for naming them? 13 There must be somebody who named them? 14 MR. GREAVES: Yes, your Honor, we named the Does. 15 THE COURT: Well, the Does will leave the case, 16 please. 17 MR. MOLLER: The Does are from California. 18 THE COURT: What about Miss Buckingham and 19 Mr. Lawless? They're individuals with the Massachusetts 20 authority. 21 MR. GREAVES: Those are not part of our suit, your 22 Honor. 23 THE COURT: Who is responsible for them? 24 MR. BARRY: I think, your Honor, that Hale and Door, 25 who represents the Lewin plaintiff, has named them. I don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 39QL9_11C Conference 1 know if anybody's here from that firm. 2 THE COURT: Is there a representative from Hale and 3 Door here? 4 I'm going to dismiss them. Give me an order, 5 Mr. Barry. I'll dismiss the lawsuit against Buckingham, the 6 lawsuit and the hundred Does. 7 MR. BARRY: Yes, your Honor. 8 THE COURT: Now, with regard to building defendants, 9 one of the problems in evaluating the issues that were 10 presented to me and that I dealt with in the September 9, 2003 11 order, is the wide range of allegations and the uncertainty 12 that I had about what was really in the case before me. This 13 particularly was the situation in the cases dealing with the 14 World Trade Center. 15 On the one hand, there were claims with regard to 16 repairs and modifications that came along as the structure was 17 occupied, some of which were done after the 1993 terrorist 18 incident. There are also claims that dealt with the 19 construction and design of the building in its infancy. One 20 reason I ruled the way I did is that I was dealing with 21 shifting sands. And it was hard to separate what claims 22 existed at what time. 23 I don't believe that it's appropriate for me at this 24 time to prevent any plaintiff from alleging a claim against any 25 defendant as to which that plaintiff has a good faith belief SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 39QL9_11C Conference 1 that there is a claim. But this is a complicated and difficult 2 lawsuit, and as the plaintiffs know too well, the time of value 3 is the time that approaches trial. The more defendants, the 4 more complications, the more motions, the more delays there 5 are, so it is not in anyone's interest, including not in the 6 plaintiffs' interest, to have this quantity of defendants in 7 the case. 8 I would like to see if it's possible to have discovery 9 programs that are focused on eliminating defendants that should 10 not be here and eliminating contentions that should not be 11 here. I don't know what they are, and they need to be defined. 12 And it may be premature to define testimony at the outset. It 13 may be that some preliminary discovery would be required. But 14 in shaping the case, I think we need to be attentive to that. 15 The case, as I say, as I will repeat many times, will 16 have its value when it becomes focused. 17 The note that Miss Park gives me is how can I dismiss 18 the individuals without knowing more? It's true. But the 19 purpose of these conferences is not just to schedule dates and 20 to require attendance. It requires attendance and 21 responsiveness. And since the person or persons or law firms 22 who are responsible for naming these individuals are not here 23 and cannot explain why they are here, I'm going to dismiss 24 them. So if you can't be here, make sure that the points that 25 may come up are going to be covered or send someone here, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 39QL9_11C Conference 1 because these meetings will all have meaning. And I'm going to 2 pursue that diligently. 3 Okay. I think that covers -- Mr. Barry, you wanted to 4 speak again. I'm sorry. 5 MR. BARRY: Yes, your Honor. Just briefly. Without 6 getting into the merits of whatever theory of liability there 7 is against all these airline defendants -- for example, some 8 sort of industry-wide enterprise liability theory, and 9 Mr. Moller's and the plaintiffs' suspicions -- we are still 10 faced with this logistical problem. As I count them now, 16 11 cases have been started against these various defendants and 12 then 43 amended complaints. We've got 59 lawsuits that now are 13 going to require the appointment, even if it's for Mr. Moller's 14 limited discovery, the appointment of counsel. And it will 15 have to be separate counsel. 16 THE COURT: Will it have to be separate counsel? 17 MR. BARRY: Well, we're investigating that right now, 18 your Honor. Our firm has been asked to investigate it on 19 behalf of the London insurance market, for example, to see if 20 any of them can be grouped together. But the possibility of 21 conflicts of interest among counsel are very, very real. So we 22 are investigating that. 23 In the meantime, I am concerned, while many of these 24 cases have been put on the suspense docket and therefore do not 25 require answer, there are these 59 that if they are served, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 39QL9_11C Conference 1 will require the appointment of counsel, and if we go the route 2 that Mr. Moller suggests of serving interrogatories, they're 3 going to have to have separate counsel. 4 As I said, it can only serve to delay the proceedings, 5 and that's why I suggested some sort of a separate track for 6 this -- 7 THE COURT: That won't solve the problem. 8 MR. BARRY: Well, that's why I said I'm bringing you a 9 problem without a solution. 10 THE COURT: It may exacerbate the problem. I don't 11 see a solution. The federal rules of civil procedure require 12 liberal amendments to pleadings at early stages. They don't 13 contemplate a case of this complexity, but I don't know how to 14 proceed in any other way than to give the plaintiffs an 15 opportunity if they think they need one. I can't relax the 16 statute of limitations, and if one of these defendants is not 17 named at the outset and it turns out later on that there is a 18 cause of action against such a defendant and a compromise cause 19 of action against a defendant previously named, if I don't 20 allow these lawsuits to be filed, then I've caused a 21 disservice. 22 MR. BARRY: Well, your Honor, as I say, I don't have 23 the solution, but I think that what has been created here is a 24 task that is almost insurmountable for me to control if I'm 25 going to have 46 new law firms coming in to join the party. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 39QL9_11C Conference 1 You know, if the plaintiffs are intent on proceeding with 2 discovery then they should be required to come up with some 3 sort of a plan that can go against discovery against the 4 defendants who were first named in the lawsuit as opposed to 5 ones that were -- the 46 additional ones that were just named. 6 And I think if we could have a stay of a time for us to answer 7 these complaints, for example, until -- these 59 that I'm 8 talking about, until when the master complaint are amended or 9 something like that, it would give us an opportunity to 10 concentrate on at least theories of liability that I see are 11 based on something more than suspicion. 12 THE COURT: What about that, Mr. Moller? 13 MR. MOLLER: I'm not prepared to consent to a stay. 14 What I think we can do to assist -- 15 THE COURT: You're not going to have any discovery 16 until they answer, right? 17 MR. MOLLER: But if it's not a suspense case, then 18 some of the airlines are going to have to respond. In other 19 words, the same defendants who are in the suspense cases, as I 20 understand Mr. Barry, or know for a fact, are in some of the 21 active cases. 22 What I would suggest is that within a discrete period 23 of time -- 24 THE COURT: There's a category that Mr. Barry is 25 talking about in the last bullet of Paragraph 7 of several SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 39QL9_11C Conference 1 dozen defendants who were not named in any of the master 2 complaints. So there are a considerable number of defendants 3 who are fresh. 4 MR. MOLLER: He's right, that they're not named in the 5 master complaints, because the complaints in which they're 6 named were just filed and the masters are now several months 7 old. 8 THE COURT: Well, Mr. Barry's suggesting that the 9 discovery against them be deferred until you see what you have 10 with those that you directed your attention earlier. 11 MR. MOLLER: I'd have to study that to see what the 12 effect is. But what I was going to suggest is that we will 13 provide to Mr. Barry, within a short period of time, maybe two 14 weeks, the interrogatories that we intend to direct to the 15 non-carrier airlines. 16 THE COURT: But Mr. Moller, you know that 17 interrogatories are not going to be answered until counsel is 18 identified and becomes aware of the situation and deals with 19 the client, and that's going to take a lot of time. And then 20 that counsel also will want to make himself or herself current 21 to what has happened before. Mr. Barry is going to be deluged 22 with having to respond to all kinds of inquiries, and it may be 23 that when you conduct your discovery against the originally 24 named defendants, you'll find out there's not a considerable 25 need to identify many of the new defendants on the schedule. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 39QL9_11C Conference 1 MR. MOLLER: That's possible, but I can't stand here 2 and say that that's, in fact, the case. 3 THE COURT: Mr. Barry, I think any savings of time and 4 money currently -- and there can be a procedure developed to do 5 that -- will cause more complexity later on. I think, 6 unhappily, I'm agreeing with Mr. Moller that he should go 7 ahead, and if it becomes too unwieldy, I think you should come 8 back to me and we'll try to work out maybe a more practical 9 solution. But there's a greater concern I think with having 10 different tracks of discovery involving different defendants, 11 and there would be more difficult requirements in terms of 12 managing them, to counsel and to me. And counsel on one track 13 is going to want to know what's happening on the other track 14 because, bottom line, they may be connected. I think that's 15 the case with the aviation defendants. 16 The security companies who are part of your group, 17 Mr. Barry, have let me know that they want to detach themselves 18 from your group to the extent of wanting to renew the motion of 19 contracting duty because of their special status with regard to 20 being parties to a contract, and they will have that 21 opportunity. So they are going to want to conduct discovery 22 with the prospect of renewing their motion at an early time and 23 bringing to my attention their status as contracting parties. 24 And the implication that has on the issue of duty -- I don't 25 think it's premature to tell everyone that I'm going to allow SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 39QL9_11C Conference 1 that. 2 MR. BARRY: I think it's not just the security 3 companies, your Honor, but certain of the non-carriers who had 4 already been served, and the Port Authorities, Massport and -- 5 THE COURT: I don't want to say too much because these 6 are all points that I'm thinking about in response to the 7 motions that have been made to seek interlocutory review. But 8 I hope to have an order on that soon, and I hope it will cover 9 the bases. 10 I'd like to proceed in normal course, reserving to 11 both you and others, and to me, to rethinking this problem. I 12 understand this problem. I've been involved as a lawyer with 13 very large cases where there were more lawyers than seats in a 14 very large room, and I sympathize with your problem and your 15 difficulty. And the more you have a problem, the more I will 16 have a problem. I understand that. 17 At the same time, I don't want to curtail substantive 18 rights, and Mr. Moller is telling me that there are substantive 19 rights that are involved. I think I need to allow both the 20 plaintiffs and the defendants operating room to define the 21 issues and to allow them to be advanced to me for rulings. And 22 that requires a certain degree of sloppiness at the present 23 time. 24 So, proceed. 25 MR. MOLLER: We'll continue to work with Mr. Barry to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 39QL9_11C Conference 1 try to solve the problem. It's as big a problem for us as it 2 is to him. 3 THE COURT: I want everyone to know how grateful I am 4 to you, Mr. Barry, for presenting this point to me. 5 With regard to the Port Authority, we need to be 6 focused in our contentions there with regard to the World Trade 7 Center. We need to be focused -- and plaintiffs are focused on 8 them. We need to be focused on what contentions will be 9 advanced, whether it will be to the original construction of 10 the building, the repairs and modifications made along the way 11 and which were covered in an earlier lawsuit, and with 12 evacuation procedures. There's a range of issues that's been 13 presented to me, and I need more clarification of those issues 14 if they're going to be the subject of motions. I think the 15 plaintiffs and the defendants involved in those issues need to 16 be concerned about that. 17 Let's move onto the next point in the agenda. 18 MR. BARRY: That's 2.g., your Honor. 19 THE COURT: 2.g. I've been extending deadlines for 20 filing cross claims and third-party claims. The deadlines 21 requested have relatively short enlarged dates. 22 MR. BARRY: At the present time, your Honor, it's 23 December 3 of this year. I think my recommendation is that 24 should be enlarged because of the extension of the New York 25 statute of limitations, and possibly New Jersey's coming, to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 39QL9_11C Conference 1 March 10 of next year. So just looking at the leeway you gave 2 for the statute of limitations, from September 10th to 3 December 3, we would propose June 1 as a time for filing -- 4 cross filing third-party complaints. 5 MR. MOLLER: We have no objection, as long as it 6 doesn't impede or delay discovery. 7 THE COURT: It may require duplicating some discovery, 8 but I think your request is reasonable and you can put it in 9 your order. 10 MR. BARRY: And I think we might have gone by 11 Mr. Williamson's point, 2.c., on defective and nonexistent 12 notices of claim against the Port Authority. 13 THE COURT: Mr. Williamson, I've been dealing with 14 them as they've come along. Judge Katz has been doing a very 15 quick job in reviewing the facts. I've held two hearings -- 16 actually, one hearing and one sort of hearing -- with regard to 17 some of those claims. Mr. Harris has been before me on those 18 as well. 19 MR. WILLIAMSON: Good morning, your honor. Richard 20 Williamson. I'm aware of that, and we only ask that this be 21 added because it's a different issue. These are -- the ones 22 that you've been dealing with, I believe, are where plaintiffs 23 have made an application for leave to serve a late notice of 24 claim. 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 39QL9_11C Conference 1 MR. WILLIAMSON: These are different. These are cases 2 in which plaintiffs brought the action and then quickly put it 3 on the suspense docket, but where there is either no notice of 4 claim at all or other defects, and failure to comply with the 5 unconsolidated laws. The procedure that had been discussed 6 following the oral argument in Mulligan was to first identify 7 all of these and then see which plaintiffs were going to not 8 insist on filing a lawsuit. Or which, with regard to the 9 category you just alluded to, wanted to apply to your Honor for 10 leave to file a late notice of claim. 11 This is the last category. These are people who chose 12 to file a lawsuit without complying with the statute, and 13 without seeking leave to not comply with the statute. 14 So the procedure that had been agreed upon, I believe, 15 was that we would wait until the decision on the motion to 16 dismiss, see if it was necessary to deal with these. You had 17 also asked us to identify them. We've done that. We've 18 contacted plaintiffs' counsel in several instances. 19 Plaintiffs' counsel have told us they would stipulate to 20 dismiss these cases. But when we sent the stipulations, they 21 didn't sign them. In one instance, one plaintiffs' firm said 22 they would not stipulate, and others just didn't respond. 23 So we need to clean this up. We believe we have to 24 attend to it now so that if we are correct about it, the 25 plaintiffs themselves will realize that they should more SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 39QL9_11C Conference 1 seriously be considering filing with the Fund since -- 2 THE COURT: I suggest this procedure, Mr. Williamson: 3 If you would submit an affidavit or declaration identifying the 4 cases and the absence of the notice, I can issue an order 5 requiring these plaintiffs to show cause before a certain date 6 why their complaint should not be dismissed. 7 MR. WILLIAMSON: I think that works perfectly. 8 THE COURT: And if -- if I don't dismiss their claims, 9 we can deal with the issue as it comes up. 10 MR. WILLIAMSON: Exactly. We'll do that, your Honor. 11 Thank you. 12 THE COURT: We're ready for 3, I think. Status of 13 Discovery. Mr. Moller? 14 MR. MOLLER: In accordance with your order of 15 February 3rd, '03, you directed the defendants to produce 16 documents within 45 days after your ruling, which would take us 17 to October 24th, and we'd like to reinforce our expectation 18 that that order will be complied with and that date will be 19 satisfied. We understand the role that the Transportation 20 Security Administration has to play in vetting documents, and 21 it is critical to us that that process proceed as expeditiously 22 as possible. 23 THE COURT: They have represented to me -- Miss 24 Goldman is here to speak to that -- that the Transportation 25 Security Administration will not do a review for sensitive SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 39QL9_11C Conference 1 security information until after I resolve all objections. Is 2 that right, Ms. Goldman? 3 MS. GOLDMAN: That's correct. 4 MR. MOLLER: That's a Catch-22 for us. 5 MR. BARRY: Your Honor, I think we may be able to help 6 with this situation. 7 THE COURT: It's not going to be Catch-22. 8 MR. MOLLER: Okay. 9 MS. GOLDMAN: Your Honor, maybe I can clarify. TSA's 10 position is as long as there are outstanding objections to 11 disclosure such as privilege and other such objections, TSA 12 will not review documents that might not otherwise be 13 disclosed. 14 THE COURT: So I have to rule on them. 15 MS. GOLDMAN: Correct, although I do not believe that 16 with respect to this first wave of documents that Mr. Moller 17 has asked for -- and Mr. Barry can speak to this -- I do not 18 believe there are any outstanding objections. But I'll leave 19 that to the parties. 20 MR. BARRY: Your Honor, Mr. Moller has requested, at 21 least of American and United, eight categories of documents in 22 a first wave. We reminded him in a letter -- and those letters 23 were forwarded to you with the proposed agenda -- of the TSA's 24 position. There was some confusion because the TSA in their 25 letter had said "any and all objections". So there was a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 39QL9_11C Conference 1 confusion of whether there were evidentiary objections involved 2 or discovery objections. 3 So in a conversation with Miss Goldman yesterday or 4 the day before, we agreed that the TSA was only talking about 5 objections to discovery such as privilege and perhaps scope. 6 So at this stage, at least -- and I'm speaking on behalf of 7 American at this time -- we are prepared to give our documents 8 within the eight categories and within the scope that we 9 believe is fair to the TSA to review. And once they review 10 them and say we can produce them to Mr. Moller, we will do so. 11 So I think that issue has been resolved, and I 12 mentioned it to Mr. Moller before we came in this morning. 13 MR. MOLLER: I didn't hear it in that detail, but 14 that's fine. The letter that Mr. Barry is referring to is a 15 letter that I wrote to him on March 24th which says, Attached 16 to the letter we sent to the Court.... 17 THE COURT: I have a letter of March 24. I have Miss 18 Goldman's response of April 11. I have Mr. Barry's response of 19 June 18. And I have the forwarding letter of the 20 correspondence of September 25th. 21 MR. MOLLER: The purpose of the March 24th letter was 22 to sharpen the focus of discovery so defendants -- 23 THE COURT: Mr. Moller, let me interrupt. I think 24 there's no issue. 25 MR. MOLLER: Then it's done. All we're waiting for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 39QL9_11C Conference 1 then is word from the TSA that we can see either some or 2 redacted or whatever privilege of access that they allow us. 3 MS. GOLDMAN: And TSA will certainly start reviewing 4 the documents once TSA receives the documents. 5 MR. MOLLER: That's fine. 6 MR. BARRY: And they'll be there promptly. 7 THE COURT: We'll build that into the order. So we 8 have covered 3.c., right? 9 MR. MOLLER: With respect to documents, there is one 10 very important piece of discovery that we are anxious to 11 receive, and that is the insurance policies of the principal 12 defendants in this case. We haven't -- we haven't gotten them. 13 We've asked for them, and it is very important for us to be 14 able to see those policies to be able to give focus to our 15 efforts. 16 THE COURT: Mr. Barry? 17 MR. BARRY: I think they're entitled to them under the 18 law. 19 THE COURT: Right. So Mr. Moller is saying: When? 20 MR. BARRY: Soon, Judge. We will -- that's up to each 21 individual defendant. 22 MR. MOLLER: I'd like us to work to a date that 23 governs all defendants, and when we submit the proposed order 24 to the Court, have a date for that in the order. 25 THE COURT: Put in a reasonable date. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 39QL9_11C Conference 1 MR. MOLLER: We'll do that. 2 MR. BARRY: As long as it's the responsibility of each 3 individual defendant to produce them and not mine. 4 THE COURT: We recognize that, but -- 5 MR. WILLIAMSON: If I may, your Honor. 6 THE COURT: Just one minute, Mr. Williamson. For many 7 people, there's an age old practice of doing things that are 8 pleasant before doing things that are unpleasant. And since 9 fortunately there are enough pleasant things to do, the 10 unpleasant things get lower and lower on the desk tops. It's 11 going to be the obligation of each one. And if sanctions have 12 to be the way that we get this to happen, that will be the 13 case. There are discovery obligations. Those can't be fobbed 14 onto coordinating counsel. They remain the obligations of each 15 plaintiff and each defendant, and if necessary, I'll be alert 16 to the issue of sanctions. I don't like to do it. There are 17 very few times that I've granted a request for sanctions. 18 Usually it's because the Court of Appeals has reversed me, said 19 I have to. But if that's the only way to make this case work, 20 I'll do it. 21 MR. BARRY: Your Honor, I'm confident that won't be 22 necessary. There is one issue involved in this, and it's 23 listed as Number 7 on the agenda, but is applicable here. And 24 that is the confidentiality of these insurance policies. 25 THE COURT: I'll sign -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 39QL9_11C Conference 1 MR. BARRY: I don't want to see them on somebody's 2 website, Judge. 3 THE COURT: I'll sign a protective order. 4 Mr. Williams, I cut you off. I'm sorry. 5 MR. WILLIAMSON: Thank you. It's okay. Just so no 6 one's under any misimpression, they're not past due, and we 7 already have a date and it's October 24th. They've already 8 been requested and they're not due until October 24th. 9 THE COURT: I had no thought of you in mind. 10 MR. BARRY: Your Honor, one other SSI issue. 11 THE COURT: You have not been that kind of a problem. 12 Your problem is you give me motions that are hard to deal with. 13 MR. WILLIAMSON: But we haven't prevailed on all of 14 them yet. 15 MR. BARRY: Your Honor, there's a -- and this really 16 is addressed, I think, to Miss Goldman, but there is an issue 17 in respect to SSI in that the plaintiffs are very anxious to 18 see the defendants' SSI, but -- 19 THE COURT: SSI is Sensitive Security Information. 20 MR. BARRY: But defendants, of course, are entitled to 21 see each others, and I think that is going to have to be 22 addressed as well by the TSA. 23 MR. MOLLER: May I say something about the issue of 24 the confidentiality of the insurance policies? Because I'm 25 concerned about that. The Airline Stabilization Act limits the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 39QL9_11C Conference 1 recovery here to the insurance policies. I don't see why the 2 policies should be confidential if the statute on its face is 3 a -- limits the opportunity of the people to recover money from 4 these defendants. The limitation of coverage is a very -- 5 THE COURT: How will you and your colleagues be 6 prejudiced if, at least in this stage, the policies themselves 7 are covered by a protective order? 8 MR. MOLLER: Depends how long the stage is, because 9 one of the things that we have to do is consult with clients to 10 let them know what the coverages are and give them a risk 11 analysis with respect to issues like collectability so that 12 they can make an informed judgment as to whether to go to the 13 Victim Compensation Fund or not. 14 MR. BARRY: Confidentiality, your Honor, to me is 15 confidentiality to the parties and their counsel. I just don't 16 want, as I'm sure the other defendants don't want, them being 17 divulged to the public. I don't think it's proper. 18 THE COURT: You'll have a risk that there's so many 19 people who are eligible to see that it will be virtually 20 impossible to track. But if you recognize that, I'm willing to 21 sign a protective order. 22 MR. BARRY: Thank you, your Honor. I think that's the 23 only reasonable way to do it. 24 THE COURT: I don't think there's a need for the 25 public to see at this point in time the policies. There may be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 39QL9_11C Conference 1 a time when they may have to see the amounts of the policies, 2 but there's a lot of things in these policies beyond the amount 3 of insurance coverage. 4 Let's deal with this as we deal with all things. We 5 have a limited ability to foresee problems. At this stage, the 6 protective order will be granted in the usual form. Have in 7 mind that I don't allow blanket filings under seal. There's no 8 need to file these insurance policies. They're discovery 9 material anyway. And before there is any filing under seal, my 10 permission has to be granted. So build that into the 11 protective order. 12 MR. BARRY: Yes, your Honor. 13 MR. MOLLER: Before something is filed under seal, 14 your permission is required. 15 THE COURT: Correct. 16 MR. MOLLER: Okay. 17 THE COURT: We've covered 3.c. Have we covered 3.a.? 18 MR. BARRY: I don't believe so, your Honor. 19 MR. MOLLER: I'm being prompted with a wise question, 20 and that is, Why should we wait until October 24th for the 21 insurance coverage issue, because time for the VCF filings is 22 running, and that is a very critical piece of information to 23 quite a substantial body? 24 THE COURT: What's your thought? October 23? 25 MR. MOLLER: No. How about -- what's today? How SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 39QL9_11C Conference 1 about October 10th? 2 MR. BARRY: That's fine, your Honor. 3 THE COURT: Okay. Mr. Barry, you're not going to get 4 compliance with your clients by October 10th? 5 MR. BARRY: I can't speak for everybody. 6 THE COURT: Mail for you in London doesn't get opened 7 all the time. 8 MR. BARRY: From me? They open it immediately, your 9 Honor. 10 THE COURT: It could be a bill. Better seal it up 11 again. 12 MR. BARRY: I would prefer to keep it within the 13 schedule that you've already established, which is 14 October 24th. That gives them two full months to make their 15 informed decision. 16 THE COURT: October 24, but I will not grant any 17 adjournments and I will be very strict if anyone doesn't have 18 it in your hands well before that time so that timely 19 production can be made. 20 MR. BARRY: Very well, your Honor. 21 THE COURT: And that stricture should be made known to 22 your clients. 23 Discovery as to ground defendants, 3.a. 24 MR. MOLLER: I thought we had covered it. 25 THE COURT: If we covered it, that's fine. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 39QL9_11C Conference 1 MR. WILLIAMSON: I agree. 2 MR. MOLLER: They will be produced by the 24th. 3 MR. BARRY: Then we have Boeing. 4 MR. MOLLER: The same. 5 THE COURT: Discovery as to Boeing, the same? Okay. 6 The same. 3.d.? 7 MR. BARRY: Your Honor, I think Mr. Van Deventer would 8 like to speak to that issue, and perhaps Mr. Wood, on behalf of 9 the non-carriers and the authorities. 10 MR. VAN DEVENTER: Peter Van Deventer for Continental 11 and the non-carriers. Your Honor, when I appeared before you 12 on your summary judgment motions on behalf of certain 13 non-carriers arising out of Flight 93, your Honor quickly 14 advised Mr. Hanly and myself that it sounded like those 15 particular matters should be dismissed to substitute some very 16 limited discovery, and I heard some talk this morning about a 17 set of non-carriers and a set of interrogatories, but 18 respectfully, your Honor, I think we're past that, my group. 19 Mr. Hanly sent a letter right after that. We sent our 20 documents to TSA. I got the green light on Friday from the 21 TSA. The documents to Mr. Hanly went out yesterday. And I 22 would just like your Honor to reaffirm what your Honor had said 23 at my last application: That if we cannot come to an agreement 24 based on what we're giving them in terms of those limited 25 flights out of Newark, that I have a chance to come back with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 39QL9_11C Conference 1 our motion before your Honor. And I think we've already passed 2 the discovery that counsel needs. 3 THE COURT: Anybody want to make a motion, make a 4 motion. I don't have any clearance procedures. 5 MR. VAN DEVENTER: Okay, Judge. 6 THE COURT: If you feel you have a motion to make, 7 make it. 8 MR. VAN DEVENTER: Okay, Judge. On the issue of 9 additional discovery, Mr. Moller's talking about 10 interlocutory -- 11 THE COURT: But don't give me piecemeal motions. I 12 don't want to have another motion which is incomplete which 13 depends on further discovery. I depend on your good faith in 14 terms of knowing when the time is right. 15 MR. VAN DEVENTER: Fine, Judge. Thank you. 16 MR. WOOD: Your Honor, Mark Wood for Massport, and 17 also for the other airport operators. You'll recall at the 18 motion to dismiss stage your Honor indicated that some limited 19 discovery be appropriate on the issue of whether or not the 20 airports have any responsibility for passenger screening. And 21 I wanted to report on our progress since that date. Because I 22 think we're on track with Mr. Moller. We consulted with him. 23 We sent a proposal to produce the airport security plans, and 24 then we were going to have Mr. Moller take a look at those, 25 identify anything he thought might be relevant for your Honor SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 39QL9_11C Conference 1 to finally decide this issue. 2 Our proposal was not accepted by the United States 3 Attorney. They had another proposal in mind which was to send 4 those plans to the TSA, have the TSA review them, make 5 appropriate redactions, and then get that information to 6 Mr. Moller. 7 We have sent the Logan security plan to the TSA. I'm 8 informed that Dulles has sent its security plan to the TSA. 9 And Newark is in the process of doing that same thing. So I 10 think we're on track with this focused, limited discovery, and 11 your Honor, that's what we see as appropriate in continuing to 12 work with Mr. Moller on these issues that relate to the 13 airports. 14 THE COURT: Good. 15 MR. MOLLER: No problem. 16 THE COURT: Thank you. I am proposing a discovery 17 hearing date of October 2, this Thursday, if there were any 18 objections. But I don't think there are any objections, so I 19 don't need to save that date. 20 MR. BARRY: We're on Item 4. 21 MR. FEAGLEY: Good morning, your Honor, Michael 22 Feagley. The course that the defendants decide to pursue and 23 against whom and when will depend on, among other things, the 24 clearing up of the complaint of the pleadings, a topic which 25 you and Mr. Barry have been discussing this morning, but I can SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 39QL9_11C Conference 1 tell you that we believe right now, even before we have clarity 2 in the pleadings and in the defendants and in the claims, that 3 there will be three principal areas that the defendants would 4 contemplate exploring through discovery soon. One will go to 5 discover what relevant information the plaintiffs already have, 6 witnesses, documents and so on. Secondly will be discovery 7 into the United States Aviation Security System as it existed 8 on 9/11, and the government's role in that. And third, what 9 happened on September 11. 10 I can go down, your Honor, if you wish, into each of 11 those topics, but we haven't served the requests on the 12 relevant entities yet. But we are working on them and we would 13 expect to be pursuing those avenues of inquiry soon. 14 THE COURT: With regard to the first category, what do 15 you have in mind in terms of motions against the plaintiffs -- 16 discovery requests against the plaintiffs? 17 MR. FEAGLEY: Sure. Interrogatory and document 18 requests designed to discover what facts and documents either 19 the plaintiffs base their claims on or are basing all of their 20 multiple claims on today; what other information or facts or 21 documents they have; what tapes they may have; what their 22 sources of information -- what sources of relevant information 23 are; what witnesses they may have identified or spoken to. 24 We think that kind of -- and we would also expect, by 25 the way, to conduct some discovery with respect to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 39QL9_11C Conference 1 newspaper reports about cell phone conversations from on board 2 at least one or two of the aircraft to people on the ground. 3 We think that it's essential for us to get this 4 information as early as we can in order to get -- help get the 5 real issues defined. The pleadings really don't get us there 6 yet, and -- given the current status of the pleadings, we're 7 certainly not there yet, to help illuminate what discovery is 8 really going to be relevant and material in this case and what 9 won't be; get a better handle on what the plaintiffs actually 10 are claiming or not claiming here. We'll get leads to evidence 11 and we'll get some evidence from this. 12 So that, in summary, is what we have in mind. 13 THE COURT: When do you think it would be appropriate 14 for me to deal with these issues? 15 MR. FEAGLEY: Soon. Next month, I would think. 16 THE COURT: Next conference, I gather? 17 MR. FEAGLEY: Sure, I would think so, your Honor. 18 THE COURT: One problem you have is that since the 19 timing -- I think we'd all be benefitted by a sharper focus 20 after the pleadings. 21 MR. FEAGLEY: Agreed. 22 THE COURT: But the plaintiffs are going to want to 23 consider what they state after they conduct their own 24 discovery. 25 MR. FEAGLEY: Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 39QL9_11C Conference 1 THE COURT: So the sequence of events is going to be 2 important, and I don't think it makes sense for you to keep 3 redoing these kinds of discovery efforts. If you do it too 4 early -- 5 MR. FEAGLEY: We understand that and we appreciate 6 that, your Honor. On the other hand, the defendants have an 7 urgent need to know what the claims are that are being made 8 against them with more specificity than the very general 9 allegations in the complaint. 10 THE COURT: I agree. I was commenting on that also. 11 With regard to the second point that Mr. Feagley 12 expressed, what's going to be the reaction of the government in 13 terms of how we should structure this? Do you have an idea, 14 Miss Goldman? 15 MS. GOLDMAN: Yes, your Honor. I think we will await 16 receipt of the discovery requests before we can really comment 17 on it. I don't know that the timing is going to make that much 18 of a difference in terms of our review of it, but in due 19 course, we will review them. This is the first we've heard 20 about this, today. So.... 21 THE COURT: That's why I called upon you. A lot of 22 this information may have been covered by the special 23 investigation that the government has been carrying on and that 24 Congress has been carrying on. And to the extent that 25 information has been made public, I'm sure you can get access SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 39QL9_11C Conference 1 to it and use it. But if your requests go beyond that, then I 2 think Miss Goldman may have some ideas that she might want to 3 express to you. 4 MS. GOLDMAN: I'm sure I will, when I see them. 5 THE COURT: Thank you. Item 5 is the procedure that 6 is being used by the Transportation Security Administration to 7 review Sensitive Security Information. I think we've already 8 heard that. 9 MR. BARRY: That's been resolved, your Honor, except 10 for the issue of other defendants seeing each others' SSI. We 11 have not yet gotten into that. We haven't yet talked about the 12 possibility of a document depository where counsel who have 13 been cleared for SSI can go and review these documents. 14 Because I think every defendant is entitled to see the SSI of 15 all others. 16 THE COURT: Have all defense counsel been cleared? 17 MR. BARRY: Not that I'm aware of, your Honor. I 18 think defense counsel are cleared automatically. 19 MS. GOLDMAN: Yes. 20 MR. BARRY: Because they have a need to know. We're 21 still -- of our own stuff. That's what I mean. 22 THE COURT: Of your own stuff. 23 MR. BARRY: Of our own stuff, we're cleared. 24 THE COURT: What about codefendants' stuff? 25 MS. GOLDMAN: Again, this is an issue that's been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 39QL9_11C Conference 1 raised today for the first time. And I believe that we will 2 review that, and now that Mr. Barry's raised the issue, we'll 3 take it back to TSA. 4 MR. BARRY: I'm not trying to surprise anybody, but 5 it's an issue that's been raised to me. 6 THE COURT: That's the purpose of these conferences, 7 to raise issues. Any time you raise an issue, it could be for 8 the first time. That's why we have these conferences. 9 I understand the plaintiffs' lawyers have been 10 cleared? 11 MS. GOLDMAN: No, not yet. Plaintiffs' lawyers have 12 now submitted, or I think most of them have submitted, their 13 packages to TSA. And they are substantially completed. But 14 not entirely completed. But they will be, I'm sure, before any 15 productions are made available. So that's something that will 16 be done very shortly. 17 THE COURT: So we need to have the same kind of 18 packages submitted by those defendants' counsel who wish to 19 have access to the full range of discovery information. Either 20 that or some other accommodation that TSA is willing to make. 21 MS. GOLDMAN: TSA will review the issue and try to 22 come up with a reasonable suggestion. 23 THE COURT: I don't need to have a report on it. I 24 think you or Mr. Barry should be in consultation. And if 25 there's a problem, then I'll hear it. But I'll assume that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 39QL9_11C Conference 1 you'll be able to work it out. 2 MS. GOLDMAN: That's fine. 3 THE COURT: I think we're up to Item 8. 4 MR. BARRY: I think 6, we've covered just now. 5 THE COURT: And 7, we talked about already. 6 MR. BARRY: Yes, with respect to the insurance 7 policies. There are, of course, other issues and other 8 defendants who -- such as Boeing, for example, who would want 9 to have some sort of confidentiality/protective order issued in 10 respect to proprietary documents, for example. 11 THE COURT: I would like to have that done and 12 completed early on. 13 MR. BARRY: We'll put it in the order. 14 THE COURT: Beyond that, if anyone has a need to be in 15 a protective order, I would like to have a submission of 16 protective orders after consultation with other interested 17 parties within two weeks. 18 MR. BARRY: Fine, your Honor. 19 THE COURT: They should also observe my rule with 20 regard to advance permission before filing of any documents. 21 The documents should not be filed under seal. If you have a 22 sensitive document and it's possible to redact that document, 23 that's the way the filing should be made. And then if it's 24 necessary to redact the larger document, submit that to me in 25 camera and ask me to review it. If there's any objection, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 39QL9_11C Conference 1 identify that which is objected to so I can rule, and I'll rule 2 quickly on those issues. 3 We're down to Item 8. I want to take this occasion to 4 mark my public congratulation to Sandra Park for completing her 5 year of clerkship. This is her last day. 6 (Applause) 7 THE COURT: I think you all have met Sandra and have 8 worked with her, and I can tell you, that although I'm 9 responsible for the results that come out of my chambers, I 10 couldn't do what I do without the benefit of the help, the 11 extraordinary help of my law clerks. I had two this year, 12 Lauren Jacobson, who is now clerking for Judge Feinberg on the 13 Second Circuit; and Sandra Park, who will leave me, and she has 14 a fellowship from Skadden, Arps to do pro bono work, and 15 Sandra's going to be working in the Bronx with people who need 16 help with immigration in terms of break-ups of marriages, in 17 terms of spousal beatings and the like. And it's a dedication 18 that I admire enormously. 19 In terms of the work here, I think you've all 20 experienced her brilliance at organization, her politeness and 21 ability to give information when called. Her unflappable 22 behavior. What you haven't seen is the extraordinary 23 responsiveness and intelligence of her memoranda to me. I will 24 miss her very much, and I wish her the best of luck in her 25 future career. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 39QL9_11C Conference 1 And now I'd like to introduce Catherine Parrish. 2 (Applause) 3 THE COURT: Catherine, stand up, please. Catherine 4 starts Monday. I brought her in early. A rude orientation to 5 what goes on. 6 MS. PARRISH: Hello to all of you. 7 THE COURT: But I have every expectation that she will 8 in a very short time be a worthy successor to Sandra. 9 My other law clerk who joined me a few weeks ago is 10 Evan Farber. Evan? 11 (Applause) 12 THE COURT: Evan's got the other side of the docket. 13 And of course, Nancy Wong and Brigitte Jones, you've already 14 met. Nancy's my secretary; Brigitte's my deputy clerk. 15 We've finished our agenda. Does anybody wanted to add 16 something? 17 MS. GOLDMAN: One logistics matter. We would ask the 18 Court to direct the parties to serve the government with all 19 papers that are being filed in Court. We are not getting 20 everything, and we're creating quite a burden on the clerk's 21 office trying to retrieve documents. So maybe in the order 22 that's forthcoming, that can be addressed. 23 THE COURT: I so order. A lady in the back? 24 MS. MONTEAVARO: My name is Joanne Monteavaro from 25 Hale and Door. We filed the action against Buckingham and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 50 39QL9_11C Conference 1 Lawless. 2 THE COURT: Please come up to the podium. Start 3 again. Tell me your name. 4 MS. MONTEAVARO: Joanne Monteavaro from Hale and Door. 5 We filed the action against the Massport, Mr. Lawless and 6 Mr. Buckingham. And they have not been served yet, but we did 7 send a request for waiver of service to them. 8 THE COURT: I asked earlier -- I guess you weren't 9 here. 10 MS. MONTEAVARO: I apologize. 11 THE COURT: -- why the two individuals were named. 12 MS. MONTEAVARO: We named them in their capacity as 13 officers of Massport. 14 THE COURT: But then why don't you just have Massport 15 as the defendant? They already are. Why have individuals who 16 can't be collected against individually? They're not sued in 17 their personal capacities. Massport is an entity; it can be 18 sued, can it not. 19 MS. MONTEAVARO: Yes. And we did, your Honor. 20 THE COURT: So why do we need the individuals? 21 MS. MONTEAVARO: We believe that as of that date, they 22 had certain responsibilities. 23 THE COURT: Then you're suing them personally. If you 24 can sue them personally, you've got to show me. Because if you 25 can't show me within a week, I'm going to dismiss them. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 39QL9_11C Conference 1 MS. MONTEAVARO: Okay. 2 THE COURT: All right. 3 MS. MONTEAVARO: Thank you, your Honor. 4 THE COURT: Okay. Step up and leave your card, 5 please. 6 MS. MONTEAVARO: Okay. 7 THE COURT: When's our next conference, somebody? In 8 February? Do you want to talk to Mr. Barry? 9 MR. MOLLER: We'll put it in the order. 10 THE COURT: No, let's do it now. 11 MR. MOLLER: Okay. February 1st, your Honor. Is that 12 a weekday? 13 THE COURT: No, it's a Sunday. 14 MR. MOLLER: Can we make it the preceding Friday? 15 LAW CLERK PARK: January 30th. 16 THE COURT: January 30th at 9:30. 17 MR. MOLLER: That's fine. I have one question. If 18 there are discovery issues that arise between now and the next 19 conference, should we bother the Court with them? How do you 20 want us to deal with those? 21 THE COURT: If they are discovery issues that you 22 can't resolve among yourself, there are two ways to -- there 23 are three ways to proceed: 24 One, I have a procedure in Rule 2-E of my chambers 25 rules, which contemplates a joint letter being sent to me SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 39QL9_11C Conference 1 describing the discovery dispute and carrying the arguments of 2 both sides, and I'll endeavor to rule by endorsement, usually, 3 but sometimes I put it in an order, a response to that request. 4 The other way, if you want to create a record, is to 5 do it by motion under Rule 37. The applicable Federal Rules of 6 Civil Procedure. 7 The third way is to call up either Miss Parrish or 8 Miss Jones if you think it should be heard by me, and I'll give 9 you a hearing time. 10 MR. MOLLER: Thank you. 11 THE COURT: There's also a possibility of a telephone 12 conference. But my experience is that that is the least 13 desirable way to do it as it too often happens in the heat of 14 some argument, and then people can't back down. Writing a 15 letter is a very useful way of getting together, and more often 16 than not, the discovery dispute goes away when you have to 17 write and create a joint letter. I'll be responsive to you. I 18 cannot administer this case properly if I allow disputes to be 19 unresolved and to fester. So I will try to give you proper 20 attention. 21 MR. MOLLER: Thank you for the direction. 22 THE COURT: All right. To those of you who celebrate 23 the Jewish calendar, a Happy New Year. With a quieter world, I 24 would hope. In any event, enjoy yourself, and I'll see you on 25 January 30. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 39QL9_11C Conference 1 MR. MOLLER: Best wishes to the Court. 2 THE COURT: Thank you. 3 MR. MOLLER: Happy New Year. 4 MR. BARRY: Thank you. 5 MR. WILLIAMSON: Thank you. 6 (Adjourned) 7 o 0 o 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300