1 69sn911n 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 IN RE: 3 SEPTEMBER 11 LITIGATION 21 MC 97 (AKH) 4 21 MC 101 (AKH) 4 5 ------------------------------x 6 New York, N.Y. 6 September 28, 2006 7 3:20 p.m. 7 8 Before: 8 9 HON. ALVIN K. HELLERSTEIN, 9 10 District Judge 10 11 APPEARANCES 11 12 KREINDLER & KREINDLER 12 Attorneys for Plaintiffs 13 BY: MARC S. MOLLER 13 BRIAN J. ALEXANDER 14 14 MOTLEY, RICE, LLC 15 Attorneys for Plaintiffs 15 BY: DONALD A. MIGLIORI 16 16 CLIFFORD LAW OFFICES 17 Plaintiffs Property Damage Liasion 17 BY: ROBERT A. CLIFFORD 18 18 DOUGLAS J. PEPE 19 Attorneys for Plaintiffs 19 20 AZRAEL GAUV & FRANZ 20 Attorneys for Plaintiffs 21 BY: KEITH S. FRANZ 21 22 ZELLE HOFMANN 22 Attorneys for Plaintiffs 23 BY: STEVEN BADGER 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 69sn911n 1 APPEARANCES (Continued) 2 2 UNITED STATES ATTORNEY'S OFFICE 3 BY: BETH E. GOLDMAN, AUSA 3 SARAH NORMAND, AUSA 4 JEANNETTE VARGAS, AUSA 4 5 CONDON & FORSYTH 5 Attorneys for Defendant American Airlines 6 BY: DESMOND T. BARRY 6 7 DEBEVOISE & PLIMPTON 7 Attorneys for Defendant American Airlines 8 BY: ROGER E. PODESTA 8 9 9 QUIRK & BAKALOR 10 Attorneys for Defendant United Airlines 10 BY: JEFFREY J. ELLIS 11 11 FLEMMING, ZULACK & WILLIAMSON 12 Attorneys for Defendant 12 The Port Authority, et al. 13 BY: RICHARD A. WILLIAMSON 13 14 RICHARD P. CAMPBELL 14 Attorney for Defendant U.S. Airways 15 15 SCHIFF HARDIN 16 Attorneys for the Port Authority 16 of New York and New Jersey 17 BY: BETH JACOB 17 18 SIMPSON THACHER & BARTLETT 18 Attorneys for Defendant Argenbright Security 19 BY: JOSEPH WAYLAND 19 20 SUSMAN GODFREY 20 Attorneys for Defendant Huntleigh USA 21 BY: LEE GODFREY 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 69sn911n 1 (In open court) 2 THE COURT: It is good to see all of you. I was 3 thinking what would happen if some date in the far off future 4 the case was all finished, and I just got a moment of terrible 5 anguish with the thought of that. Then I woke up. 6 Actually, you will notice that items II and III are 7 the same. How many you have noted that? It's by way of 8 emphasis. 9 Let's start with Item No. I and perhaps, Mr. Moller, 10 you can report. 11 MR. MOLLER: I can start and then Mr. Alexander and 12 Mr. Barry can pick up from there. 13 We've started taking depositions on September 12. 14 They have proceeded without a hitch. We have some scheduling 15 issues that have to be resolved, and you will hear a short 16 report in a moment about the scheduling of depositions. I want 17 to take a moment just to mention that the TSA has not yet -- 18 THE COURT: Can everyone hear Mr. Moller. 19 MR. MOLLER: I'm sorry. 20 I want to take a moment to say that my optimism has 21 been rewarded and that TSA has not obstructed the depositions, 22 and that in fact they have acted rather constructively and 23 helpfully with the depositions. They have not interfered with 24 the depositions. We still obviously are concerned about 25 redactions of documents and the pace of production of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 69sn911n 1 documents, but at least at the depositions themselves TSA has 2 not been a problem. They have been attended by the -- 3 THE COURT: Gold stars to Ms. Goldman and Ms. Normand. 4 MR. MOLLER: -- the attorneys that are here. Before I 5 ask Mr. Alexander to address the other discovery issues, I want 6 the Court to know that plaintiff's liaison counsel and defense 7 liaison counsel want the record to show that we're going to 8 miss Ally Cheatham, who I understand is about to move on to 9 some other activity, and we want to thank her for the 10 cooperation and spirit of congeniality with which she has 11 attended to our various requests and chores. 12 THE COURT: I will deeply miss her. I forget what 13 number law clerk Ally is in the life of this case. I've missed 14 each one, but I particularly will miss Ally. Not only is she 15 brilliant and an excellent writer, but she brings a spirit of 16 fun and charm to chambers, and I think that communicates itself 17 in her relations with you. The totality of having someone who 18 is constantly alert, constantly challenging, and doing it in 19 the spirit of good humor and fun is a combination that's rare. 20 I'll miss Ally very much. I had planned to discuss in item No. 21 VII. I think it deserves more prominence than No. VII. 22 MR. MOLLER: We couldn't wait. 23 THE COURT: I thank you for elevating it on the 24 agenda. 25 Since we've elevated it, I want you to meet Brian SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 69sn911n 1 Sutherland. Stand up Brian. 2 MR. MOLLER: A year from now, if we're still here, we 3 hope to report you, too. 4 THE LAW CLERK: I'll try to live up to her standards. 5 MR. MOLLER: That's a job. Can I ask Mr. Alexander to 6 address the other discovery issue, and then deal with other 7 items? 8 THE COURT: Yes. 9 MR. ALEXANDER: Good afternoon, your Honor. 10 With respect to the status of the depositions, as 11 Mr. Moller says, we're finally under way. We have had several 12 weeks of depositions already. We will be meeting with defense 13 counsel next week to continue to schedule depositions 14 throughout the remainder of '06, perhaps even into early '07. 15 We've exchanged a list of witnesses already and that will take 16 place I believe Tuesday morning. So that's really the skinny 17 on the status of depositions. 18 The further discovery, your Honor, again, just to keep 19 it simple, we are continuing to in the broad sense meet and 20 confer with defendants. Also, with respect to discovery, we've 21 propounded some of that. 22 Defendants continue to produce documents on a rolling 23 basis in what we've called the third wave. We will continue to 24 meet with them in short order on what will become the fourth 25 wave and identify that and resolve any issues there. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 69sn911n 1 As I've said each time I have been before you with 2 respect to discovery, if there is an issue and a roadblock, 3 we'll bring it to the Court's attention in accordance with the 4 procedures your Honor has set forth. At this moment we 5 continue to drive on, and that's borne fruit. 6 Again, the progress is slow but that has more to do on 7 that side of things with what it takes to get it through the 8 TSA and perhaps your Honor can address that with the government 9 in a moment. 10 As to discovery that's been propounded on plaintiffs, 11 we've met and conferred with defendants on that and will 12 continue that dialogue on Tuesday. I think we've got a remedy 13 for that. That, too, is on track. 14 THE COURT: You are thinking that discovery will 15 finish in early 2007, say February? 16 MR. ALEXANDER: What I would say, your Honor, is no. 17 What we think is -- optimistically, I think the spring is a 18 good target for completion of factual discovery, at least the 19 depositions at that point. 20 THE COURT: Why is it taking that long? 21 Why should it take that long? 22 MR. ALEXANDER: The lists are long of witnesses to be 23 done. 24 THE COURT: I know, but lists tend to be a lot longer 25 than witnesses that are actually needed. Everyone is very much SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 69sn911n 1 concerned with the possibility of leaving a pebble unturned, 2 but I think you know from your extensive trial experience that 3 cases are won and lost not with the pebbles but with the main 4 points. 5 MR. ALEXANDER: I think it will take quite a bit of 6 time, your Honor. There are four cases here. When you think 7 about it, there are four flights and there is a healthy amount 8 of discovery that has to be conducted, like it or not, specific 9 to each flight. 10 There are some issues that overlap, and last week's 11 depositions are an example of that, where you get a higher 12 level executive dealing with security issues. But there's of 13 rubber that has to meet the road and discovery and witnesses 14 that we have to talk to, and the defendants have their side of 15 the coin with nonparty witnesses. That has to be integrated 16 into that. 17 That's the process that we're going forward with on a 18 very rigorous schedule, that's two weeks on, one week off, 19 three or four days a week for the foreseeable period of time, 20 which, again, we think a six-month window is about right. 21 THE COURT: So I should think of March 31? 22 MR. ALEXANDER: We're comfortable with that time 23 frame, your Honor. 24 THE COURT: Mr. Clifford? 25 MR. CLIFFORD: Your Honor, thank you. Robert SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 69sn911n 1 Clifford. I asked that same question of our team, and one of 2 the issues at least to identify it, is, not to pick a fight 3 with anyone, but the fact is that, unlike many other cases, 4 where there are multiple tracks, we are not doing that at all. 5 I would have expected and frankly did expect that we 6 would get this going on at least two tracks for a couple of 7 teams. We're prepared to do that. I understand there's a 8 push-back on that concept from the defense, given the fact that 9 certain lawyers feel that they must attend all depositions and 10 therefore can only stay on one track. 11 THE COURT: If there's a consensus for double 12 tracking, I would go along with it. If there isn't a 13 consensus, perhaps I can urge one. 14 MR. CLIFFORD: Urging for now at least to put it in 15 play would help, especially to stay on a time frame of the end 16 of March. 17 THE COURT: At the initial depositions everyone I 18 think wants to get a sense of the setting. There is a more 19 important argument for everyone who wants to be there to be 20 there. But at some point, and I think it could be an early 21 point, within a month or so of now, I think double tracking 22 should begin. 23 Mr. Barry, what do you think? 24 MR. BARRY: Your Honor, we have discussed in principle 25 the issue of double track. I take issue with Mr. Clifford SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 69sn911n 1 saying we've pushed back on it. 2 THE COURT: He may have said that, but I didn't hear 3 it. 4 MR. BARRY: OK. 5 Mr. Alexander is absolutely right, your Honor, when he 6 says we are handling four major air crash disasters right now, 7 each with its own individual set of facts concerning checkpoint 8 screening and every other issue that went into each of those 9 hijackings and crashes. 10 To say that we can zip through this the way the 11 plaintiffs have to prepare their cases and the way we have to 12 prepare our defense in a period of a few months I think is 13 really looking at it unrealistically. 14 We have discovery that we've propounded of the 15 plaintiffs. We have discovery that we've propounded of the 16 government. We are still sitting down with the government, 17 trying to iron through the 2(e) regulations, and they've 18 indicated that they intend to cooperate with us. 19 But I think to look at March and say that's going to 20 be the end of fact discovery, I just want to go on the record 21 as saying I think that's being very optimistic. 22 THE COURT: What is your realistic view? 23 MR. BARRY: Realistically I estimate we may be able to 24 finish the fact discovery within the year, and that's before 25 expert discovery. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 69sn911n 1 THE COURT: That's the fall of 2007. 2 MR. BARRY: Yes, your Honor. 3 That's my opinion. I'm trying to be realistic, your 4 Honor. 5 THE COURT: But I would like to adopt the March date. 6 MR. BARRY: I am surprised at that. 7 THE COURT: I would like to adopt the March date, and 8 I think at a point that makes it realistic there needs to be 9 double tracking. I'm not pushing it now. 10 One minute, Ms. Goldman. I am not pushing it now, but 11 I would like it. I understand that it is very hard to plan 12 anything without taking into consideration what will happen 13 with TSA, and I think that's what Ms. Goldman is about to tell 14 me. 15 MS. GOLDMAN: Yes, your Honor. I think double 16 tracking at this point is just not possible with TSA being 17 required to be there to object with respect to all SSI. We 18 don't have enough people to send to two tracks of depositions. 19 It is not just not realistic. 20 We are sending an SSI expert to each deposition as 21 well as a TSA attorney as well as one of us. We could divide 22 that up, but TSA could not. So I just don't think we could do 23 it. 24 THE COURT: I could understand that in the first few 25 depositions, but I think there has to come a point where SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 69sn911n 1 routine sets in. I don't know when that point will be reached. 2 In my opinion, March 2007 is pretty far off. That is 3 six months. I have been in enough large cases to know that 4 it's like a drawer. You have as much papers as fit into the 5 drawer. If the drawer is all you get, somehow you figure out 6 what papers you don't need. 7 If I give you a deadline of March 31, everyone is 8 going to figure out what he or she needs to comply with that 9 date. 10 Part of that consideration is also the double 11 tracking. I would like to adopt March 31, 2007, as the date by 12 which fact discovery has to be completed, and that means that 13 you have to work out what needs to be done. 14 MR. WAYLAND: Your Honor, Joe Wayland with Simpson 15 Thacher for Argenbright Security, one of the defendants in the 16 case. 17 THE COURT: Yes, I recognize their name. Yes. 18 MR. WAYLAND: I think one thing that needs to be 19 brought to your attention is we don't have control over a 20 number of the witnesses that we may need, and those are 21 government witnesses, your Honor. 22 Normally in a case one side has control over the 23 witnesses, and you can work out with the other side whether 24 they are going to produce their witnesses and sometimes there's 25 a third-party private defendant you serve a subpoena on. But SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 69sn911n 1 in this case there are a number of government witnesses and 2 it's going to take us a long time realistically, and there's no 3 getting around that, to get the government to produce the 4 people, to fight the battles what about what they say at the 5 deposition so we can set a date of March 31 and we can do our 6 best to work for it. But there is this circumstance that is 7 beyond the control of either party to get the government 8 witnesses identified by the government, cleared by the 9 government, and then examined by the parties. So I just let 10 you know that, Judge -- 11 THE COURT: Mr. Wayland, I think the answer to that is 12 to anticipate. 13 MR. WAYLAND: We have been anticipating, your Honor. 14 THE COURT: So the second issue is a subpoena. 15 MR. WAYLAND: We have begun the process, your Honor. 16 I am just saying that a lot of it is going to be out of our 17 control and we may be back here to tell you about the 18 circumstances -- 19 THE COURT: The courts have a way of helping in that 20 process. If you anticipate the process, get your subpoenas 21 out, and then it becomes the government's burden to object. 22 Then the Court is able to issue an order. So anticipation is 23 the answer. 24 Of course, dates are set to be the basis for either 25 keeping to them or relaxing them. But we need to have a target SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 69sn911n 1 a finish target. 2 MR. GODFREY: Lee Godfrey, your Honor, for Huntleigh, 3 another one of the defendants. I agree with Mr. Wayland that 4 we really need to put a marker down by that deadline and be 5 aware and cognizant that, no matter what we do, we are going to 6 have delays and it's going to take time to get the government 7 witnesses down. 8 Your Honor, also, there are a lot of issues that may 9 become resolved during the course of the other fact discovery 10 in the case that are going to dictate, to an extent at least, 11 what government witnesses we need to try to get a hold of. 12 So I would ask the Court to perhaps have a separate 13 decision with respect to government discovery because we don't 14 want to go out and waste time trying to find government 15 witnesses that, as discovery actually turns out, we are not 16 going need. So if we could have a little time extra in 17 connection with that, I think it would be realistic and 18 helpful. 19 THE COURT: At this point I am not going to give it to 20 you Mr. Godfrey, but if you make a showing about some of these 21 events that occur, I will be responsive to you. 22 MR. GODFREY: Thank you, your Honor. 23 THE COURT: The surest guarantee that time is taken 24 that could be avoided is to give you a blanket approval. So I 25 am not going to do that, but I will recognize good-faith SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 69sn911n 1 efforts. 2 Any more concerns I should know about, Ms. Goldman? 3 MS. GOLDMAN: I have a list, but we'll save them for 4 later. 5 THE COURT: Tell me what TSA is proposing to do with 6 the third and fourth waves. 7 MS. GOLDMAN: I think you mean the second, third, and 8 fourth waves, your Honor. 9 THE COURT: No, I hadn't meant that, but -- 10 MS. GOLDMAN: Let me give in you a sense an overview 11 of what TSA has been up to and then what we have going forward. 12 I think the best way to describe what TSA has been 13 doing of late has been trying to be responsive to what the 14 parties need for purposes of the depositions so that a lot of 15 what's been going on is, for instance, after the first wave is 16 produced, TSA produced templates of various documents. A lot 17 of the defendants then had to conform their documents and 18 wanted the documents re-reviewed by TSA and TSA would turn 19 those around in five to ten hours. TSA was also doing various 20 miscellaneous requests in anticipation of depositions. 21 Then either at the deposition or the day before we 22 would get requests to look at documents that were going to be 23 used for deposition, and those documents fall into two 24 categories. Some of those were documents that TSA had never 25 seen before and never had been presented for review, and some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 69sn911n 1 fell into the category of second-wave documents that were being 2 asked for re-review on an immediate basis and that is what TSA 3 has been trying to very quickly, and I think the parties have 4 acknowledged that we did it and people were able to use them at 5 the depositions. 6 The second thing they are doing is reviewing the 7 transcripts of the depositions for inadvertent disclosure, and 8 we promised the parties that would be done within 48 hours of 9 receipt. In fact TSA has done that, and often within 24 hours. 10 There are also transcripts of side bars that we are 11 having occasionally with defendants' counsel on side questions, 12 and we're reviewing those transcripts as well for release. So 13 that's keeping us very busy. 14 Then we are also getting from the parties third wave 15 documents, and we've gotten the subpoena from the defendants 16 for a large volume of documents. 17 We also have the second wave re-review that is going 18 on, and we have documents that the plaintiffs have subpoenaed 19 from third parties that are subject to review. That is all 20 sitting at TSA for review. 21 One of the things that we had asked at the last 22 conference with respect to the second wave was for, at least in 23 that case, for plaintiffs to try to prioritize the documents 24 that they need on an immediate basis so that we can be 25 responsive, and they have what they need. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 69sn911n 1 We are now in a position -- we've got second wave, 2 we've got third wave, we've got defendants' documents. We met 3 with the defendants -- actually, with all parties about their 4 subpoena. They've tried to narrow the list. 5 I think we are going to have further discussions with 6 them about what they need on a more expedited basis, and we 7 would urge the parties with respect to all of these documents 8 to do the same. We could unilaterally make some decisions 9 about what should be first and what should be second, but that 10 won't necessarily satisfy the needs of the parties, so it would 11 be extremely helpful to us and probably very helpful to them if 12 the parties could get together and figure out what they need 13 first, second, and third. 14 THE COURT: Plaintiffs? 15 MR. MOLLER: I would concur with Ms. Goldman to the 16 extent that the TSA has been busy. As I said before, they have 17 been cooperative. We have also extended the date for 18 responding to the appeal that was filed by the plaintiffs and 19 the defendants of the February 7 order. 20 THE COURT: Has staff counsel met with you to see if 21 there can be larger consensus of agreement? 22 MR. PEPE: Your Honor, we are no longer in the Second 23 Circuit. We are in the D.C. Circuit with respect to the 24 February 7 order. The March 17 order has been withdrawn by 25 TSA. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 69sn911n 1 The parties have agreed and TSA has agreed to postpone 2 briefing in the D.C. Circuit until such time as TSA actually 3 completes the review of some documents. 4 Once we complete a sufficient number of documents 5 where the parties feel comfortable that we should be pushing 6 for a briefing schedule in the D.C. Circuit, we'll go forward 7 on that basis. 8 MR. MOLLER: The staff dialog that you may be 9 referring to is the one that we're having with Ms. Goldman. 10 THE COURT: The Second Circuit has staff counsel who 11 from time to time can become very active in trying to settle 12 cases on the appeal. 13 MR. MOLLER: We are out of the Second Circuit. The 14 Second Circuit proceeding is now in the District of Columbia, 15 but we have not had a staff meeting with District of Columbia 16 Court of Appeals counsel. 17 THE COURT: Does the D.C. Circuit have a similar kind 18 of procedure? 19 MR. PEP: Your Honor, I am not certain about that, but 20 I will inquire. 21 MR. BARRY: Right now, your Honor, it's on the 22 suspension calendar. We've made a motion to hold briefing in 23 abeyance, and we expect the D.C. Circuit is going to grant that 24 motion. It was a joint motion of all parties. 25 THE COURT: Should I be happy with that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 69sn911n 1 MR. BARRY: You should not be unhappy. 2 MR. MOLLER: The answer to your question, in all 3 candor, is you should be pleased. There is a dialogue ongoing, 4 and they are trying to get stuff out to us. We would like it 5 to be faster, but it is coming out fast enough so that the 6 depositions are reasonably productive and the re-reviews that 7 the government engaged in has opened the doors a little bit, 8 and those things in some areas that have been redacted don't 9 affect the depositions that have been taken so far. 10 So if that continues and the government continues to 11 get the stuff out to us without unreasonable delay, we think we 12 can make some progress. We think we can work it out. We have 13 put on the record at the end of each deposition that the 14 plaintiffs at least reserve the right to recall a witness if 15 TSA documents, once reviewed and unredacted, produce 16 information that warrants the recall of a witness. 17 Mr. Migliori put that on the record directly in at least two 18 depositions, and I think everybody is proceeding with the 19 understanding that we are not going to abuse that, but if all 20 of a sudden we find something coming out that says we better 21 get this witness back and ask him a question, we are going to 22 have that right. The defendants have objected to our reserving 23 the right of recall. 24 THE COURT: No. I order it. 25 MR. MOLLER: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 69sn911n 1 THE COURT: There will be a right not to redo 2 depositions -- 3 MR. MOLLER: Agreed. 4 THE COURT: -- but to ask questions that arise from 5 late-produced documents. I pushed you into taking depositions 6 earlier than some of you wanted. But I understand that there 7 will be late production of documents, and if they suggest 8 additional questions to people who have been deposed previously 9 you can proceed subject to motions for a protective order by 10 the persons aggrieved. 11 MR. MOLLER: To wrap it up, I don't want to take up 12 unreasonable time. We are working well, and I think now that 13 we've got to traction on the depositions they are going to be 14 productive and scheduled with reasonable facility and moving 15 forward. 16 THE COURT: All right. So I have in mind that March 17 30, which is the last Friday in 2007, is the closing date for 18 fact discovery. Mr. Ellis. 19 MR. ELLIS: Yes. On behalf of United, first of all, I 20 appreciate the spirit of cooperation that we have had with the 21 plaintiffs and the TSA trying to move this process forward. 22 I know your Honor has previously appreciated that 23 normally defendants don't produce their witnesses on more than 24 one occasion. We are attempting to work out the discovery 25 issues with the plaintiffs, and we do have a meeting next week SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 69sn911n 1 and we're hopeful that we'll have enough information that we 2 can set a realistic schedule and maybe even prioritize 3 documents that are produced that the government may have to be 4 produced. 5 I guess my question to you, your Honor, is, if there 6 are differences of opinion, would it be your preference that we 7 come in and we talk to you, maybe expedite that process. 8 THE COURT: The procedure I have is 2(e). 9 MR. ELLIS: A 2(e) letter, your Honor. OK. 10 THE COURT: That I think is the fastest way to get 11 something to me. My experience is that lots of discovery 12 disputes are reconciled before they come to me. When they do 13 come to me, if I can possibly do it, I'll do it within a 14 24-hour turnaround. 15 MR. ELLIS: I expect, your Honor, we are probably 16 going to work this out. Fortunately, we have had a lot of 17 recent history of cooperation, and I think it will work out. 18 But since we are now charting a course that we would like to 19 comply with, if your Honor wants us to, obviously we may have 20 to expedite a few things and bring them to your attention. 21 THE COURT: That's the most expeditious way. If I can 22 resolve it, I will. If I can't, I will call a conference. But 23 your conversations amongst yourselves are the best way to 24 resolve these issues. 25 MR. ELLIS: Of course, sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 69sn911n 1 THE COURT: I think that takes you through IA, unless 2 there is someone who has something more, and I think IB as well 3 and IC and ID. So we are finished with item I. 4 With regard to settlements, I think I would like 5 again -- and probably I will get consensus -- is to thank 6 Ms. Birnbaum for the extraordinarily effective job that she has 7 done. She has given hours and hours of her time and been 8 extremely patient. I am glad to see that there are 37 9 settlements to date. I am glad, Mr. Migliori, that your 10 partners have been active in this process and produced a number 11 of these recent settlements as late as yesterday. 12 MR. MIGLIORI: I would like to take credit for a 13 couple of those and not pass it on to my partners. 14 THE COURT: I know, Mr. Migliori, that you are a very 15 modest person. For fear of embarrassing you publicly before 16 this large group, I wanted to put it this way, but you are free 17 to accept credit yourself. 18 MR. MIGLIORI: Thank you. 19 MR. CLIFFORD: He's no less shameless than Mr. Moller 20 in the beginning telling you that the TSA was working out, even 21 though you were skeptical. 22 THE COURT: He's an optimist. It was probably right 23 after a sabbath prayer. 24 So you have 37 settlements to date, and I think, 25 Mr. Migliori, you are in the best position to tell me what's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 69sn911n 1 going to happen in the next few weeks. There was very little 2 progress over the summer. I was disappointed by that. I was 3 encouraged by the spate of activity recently, but there has to 4 be a very strong push in the weeks ahead. 5 MR. MIGLIORI: If I wanted to make this about me, your 6 Honor, I would say the summer was the dearth of settlements 7 because my wife had a baby. 8 THE COURT: Congratulations. I'm glad you are not 9 accepting credit for that. 10 MR. MIGLIORI: All the credit, including my child's 11 looks, goes to my wife. 12 We have, since the last conference, continued with 13 mediation with all defendants, both directly in the presence of 14 Ms. Birnbaum and through various telecommunicating that we have 15 been doing on particular cases. 16 Just this week, we had some face-to-face meetings 17 directly with the defendants, constantly keeping the mediator 18 apprised, and we have some approaches and vehicles to get 19 through certain obstacles in valuation that we're negotiating, 20 talking about, in some instances bantering about, but we are 21 actually very actively, even without formal mediation 22 scheduled, talking with various defendants on a daily and 23 weekly basis. 24 We have some proposals, and we have some cases that 25 are very close that we think again discussions over the next SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 69sn911n 1 several weeks will produce more success. But as of this week, 2 three more cases, just this week. 3 THE COURT: In addition to the 37? 4 MR. MIGLIORI: That I don't know, because I don't know 5 what constitutes the 37. But I can represent to the Court that 6 there is a very cooperative and productive dialog going on. I 7 do think that, come the next conference, the Court will 8 continue to be pleased. 9 THE COURT: There are some interesting conflict-of-law 10 issues, particularly those dealing with the survivors of those 11 who died in Pennsylvania. They have not come to me for 12 decision, and I hesitate to inject myself into those because I 13 don't want to do anything that would compromise my 14 independence. 15 I have in the past in other cases worked out a 16 procedure where I will give my initial reactions to a 17 particular legal or factual issue with the understanding that I 18 was not bound either to adhere or reject those views, the 19 parties were not prevented from arguing that in the more formal 20 way at a later date, and I would not be recused for that 21 activity. 22 I don't want to volunteer this. The parties in both 23 sides would have to agree. If you want me to do this, I will. 24 Because my experience in the past is such as to suggest to me 25 that it's a powerful tool in helping people come to agreement. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 69sn911n 1 MR. MIGLIORI: I would add, your Honor, sometimes it's 2 even more powerful to not have you lean either way, that is, as 3 long as it's out there as an issue and there's still productive 4 dialog. 5 THE COURT: Because you discount the issue right away. 6 MR. MIGLIORI: So I would ask that we have some time. 7 We have very good communication with counsel on that flight. I 8 would ask that you allow us to continue, because there are some 9 other sort of global blocks beyond conflict of law that I think 10 we can try come up with a vehicle of fixing which won't tilt 11 that scale necessarily right now in either direction. 12 But I can commit to the court that we would like to 13 discuss it with counsel for 93, what you are proposing, and we 14 can get back to you on whether that's what the immediate 15 vehicle should be or one that we would want in a matter of a 16 few weeks, if that's OK. 17 THE COURT: That's fine. That's acceptable. 18 I want that issue to be present, because at some point 19 I think Ms. Birnbaum can't be asked to put aside everything 20 else she's doing for this, and we would have to close up that 21 facility. 22 I also need to know some details. There were 23 approximately 92, I think, or 94 cases in the category of the 24 wrongful death actions. But there's 300 cases in the category 25 as a whole. I don't know where they come up. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 69sn911n 1 Mr. Barry? 2 MR. BARRY: Originally, your Honor, there were I think 3 330 cases on file here. But if you will recall, when the 4 deadline came for election into the victims compensation fund 5 or proceeding with litigation, two-thirds of those cases or 6 just a little over two-thirds were dismissed. So we ended up 7 basically after the expiration of the deadline for election 8 with 96 cases before your Honor, 96 claims. 9 THE COURT: Has anyone inspected the files to ensure 10 that the difference between 330 and 96 have been dismissed? 11 That means that approximately 240 cases were dismissed. 12 MR. BARRY: I believe so. They were done, some with 13 various cases, in one dismissal, for example, one pleading. 14 THE COURT: We'll have to check that and get a report 15 from the clerk. 16 THE LAW CLERK: I can check with docketing today. 17 THE COURT: We'll check with docketing, but that 18 solves a major problem. Of the 96 that remain, 37 have 19 settled? 20 MR. BARRY: 37 have settled, correct. Leaving 59 open 21 claims. There are actually 58 lawsuits, but one lawsuit has 22 two plaintiffs, a mother and daughter, personal injury. That's 23 what is pending now before your Honor in terms of wrongful 24 death and personal injury cases. 25 THE COURT: All those are against the airlines? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 69sn911n 1 MR. BARRY: The airlines are defendants in all of 2 those, yes, and the security companies. 3 THE COURT: And others? 4 MR. BARRY: Yes. 5 THE COURT: Of those 58, how many are wrongful death? 6 MR. BARRY: 48 -- cases now I'm talking about. 7 THE COURT: So that means ten cases are PI, personal 8 injury? 9 MR. BARRY: Correct. But one of the ten is on behalf 10 of two victims, the mother and daughter. So that's how you get 11 up to 59. 12 THE COURT: Who speaks for these ten? 13 MR. BARRY: Individual lawyers, your Honor, Motley 14 Rice has a couple of them. 15 MR. MIGLIORI: We have three cases, but four claims. 16 MR. BARRY: Right. 17 THE COURT: How are they being handled? 18 MR. BARRY: I think the rest are individual lawyers. 19 THE COURT: I was going to ask Mr. Migliori how this 20 group is being handled. 21 MR. MIGLIORI: We handled them for purposes of 22 resolution and liability as if they were in the group of 23 wrongful death, a little difference, sometimes a little more 24 involved in getting economic information to defendants for 25 mediation purposes because there are other types of experts SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 69sn911n 1 that are needed to talk about future needs for physical health 2 and the like. 3 So it is a little more involved than putting together 4 the economic valuation, but for our purposes I think it's been 5 moving along as well as the rest in the same fashion. The 6 defendants have asked for some specific backup on particular 7 expert issues, and we have been trying to get that information 8 to the defendant as requested, but I think we are moving along 9 smoothly. 10 MR. BARRY: We don't have any issue with Mr. Migliori 11 and his three personal injury cases. The other ones with 12 individuals, we've got one or two that are pro se. They are 13 being handled by individual lawyers or pro se, so we've got to 14 deal with them separately. 15 THE COURT: Is there anybody in the audience that has 16 some of these cases? 17 We had several cases that had not been moved. There's 18 the Bilov Nadal case, 04 Civ. 7226. 19 MR. BARRY: We moved to dismiss that for failure to 20 prosecute. If you will recall, there -- 21 THE COURT: There were serious personal problems in 22 that case, and we gave time. 23 MR. BARRY: I believe that's what your indication was. 24 THE COURT: And then there's Buchsbaum, 04 Civ. 7189, 25 Tanzi, 04 Civ. 7213, and Merrill, 04 Civ. 7298. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 69sn911n 1 MR. BARRY: And Foreman, the United case, there's a 2 motion coming on that as well. 3 THE COURT: So are there motions in all these cases? 4 MR. BARRY: No. We made a motion in the Bilov Nadal 5 case. United is going to make a motion in the Foreman case. 6 The others we are trying to deal with the individual lawyers in 7 obtaining damage information. We only picked those two cases 8 in terms of -- you had asked us to move to dismiss for failure 9 to prosecute, which we did. 10 THE COURT: I would like you to make it known to that 11 group that one of them speaking for all should be present at 12 these meetings. 13 MR. BARRY: I will do that. 14 THE COURT: If they're not present, Mr. Migliori -- 15 MR. MIGLIORI: Your Honor, not that I need more work 16 to do, but in that we have cases in that category, I am more 17 than willing to be of cooperation to the Court in communicating 18 with them and what we think this process might do to help them 19 move their cases forward. 20 MR. BARRY: I would welcome that. 21 THE COURT: I don't care if it's you or Mr. Barry or 22 both of you, but I want one representative at least from this 23 group to be here. You have numbers of interests, Mr. Migliori. 24 They have a particular interest, and they need to be here. 25 MR. BARRY: I agree. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 69sn911n 1 MR. MOLLER: Your Honor, I have written to those 2 people, and I will follow up on that. 3 THE COURT: All right. Because if they are not here, 4 I am going to dismiss it. 5 MR. MOLLER: I will follow up on it. 6 THE COURT: Mr. Clifford, how do you stand in this 7 process? 8 MR. CLIFFORD: I keep asking people if they would like 9 to talk with me and I feel like the, you know, spurned prom guy 10 looking for a date and can't get one. So no one wants to talk 11 to me, Judge. 12 They keep telling me that there won't be any 13 settlement discussion on the property cases. Specifically I am 14 told there won't be any settlement discussion on nonpassenger 15 cases, and yet the inconsistency there is there is settlement 16 discussion on nonpassenger injury or death cases. 17 THE COURT: At a certain time, Mr. Migliori and 18 others, I need to close up the mediation process for the 19 personal injury claimants, and I need to entertain the 20 possibility that there will or there may not be settlement 21 efforts with the property damage claimants. 22 It's quite permissible to say for a defendant, I am 23 not going to settle those. That's fine. But I don't want this 24 to be an implication one way or the other. I recognize and all 25 of us recognize that the wrongful death actions have gone SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 69sn911n 1 first, but at a certain date that has to stop. I don't know 2 when that date is, Mr. Migliori. But each time I raise this, 3 it's going to come closer. 4 I doubt very much that Ms. Birnbaum is going to remain 5 in her facility beyond June and probably not even that far. 6 It's now September. March or April would be probably a 7 reasonable target date to finish up. 8 MR. BARRY: Your Honor, might I suggest that we put 9 the same date on mediations as we put on fact discovery? 10 THE COURT: No. Because I want to give Mr. Clifford a 11 chance. 12 MR. BARRY: I am talking about the wrongful death and 13 personal injury mediation. 14 THE COURT: Discovery is not going to end until March 15 of 2007. Yes. OK. I agree. March 31, 2007. Then it's going 16 to be Mr. Clifford's job. 17 MR. MIGLIORI: Your Honor, if I may, I just want to 18 make sure that I understand. What we are talking about is the 19 mediation process with Ms. Birnbaum? 20 THE COURT: Right. Right. 21 In the 96 cases that remained, were there any ground 22 victims? 23 MR. BARRY: 58 remaining right now. 24 THE COURT: I know. I understand. Of which 48 were 25 wrongful death and ten are personal injury. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 69sn911n 1 MR. BARRY: Right. 2 THE COURT: Of that 48 and 10, are there any ground 3 victims? 4 MR. BARRY: Yes. There are 14. 5 THE COURT: 14 of the 48? 6 MR. BARRY: Correct. 7 THE COURT: Or 14 of the 58? 8 MR. BARRY: 14 of the 58. There are some personal 9 injury ground victims and there are death ground victims. In 10 World Trade Center we've got -- 11 THE COURT: What is the position -- 12 MR. BARRY: -- six -- I'm sorry. 13 THE COURT: I'm sorry. Go ahead. 14 MR. BARRY: I was going give you a breakdown, but if 15 you don't need that. 16 THE COURT: No. We don't need that. 17 MR. BARRY: It is on the chart. 18 THE COURT: Yes. We have that. 19 Are the airlines going to be involved in settling 20 those ground victims' cases? 21 MR. BARRY: The aviation defendants are settling 22 ground victim cases, yes, your Honor, wrongful death and 23 personal injury cases. 24 THE COURT: Did you hear that, Mr. Williamson. 25 MR. WILLIAMSON: Yes. We are well aware of it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 69sn911n 1 MR. BARRY: He knows that. 2 THE COURT: OK. I think that finishes items II and 3 III. 4 Ms. Goldman, number IV? 5 MS. GOLDMAN: I think number IV is number I. 6 THE COURT: Good. 7 Number V. I have a motion by U.S. Airways for summary 8 judgment regarding Flight 175. I've read the papers. They 9 make a strong case. 10 Yes, Mr. Barry? 11 MR. BARRY: Your Honor, I believe the plaintiffs and, 12 property plaintiffs and Mr. Campbell for U.S. Airways have 13 resolved that issue at least temporarily with a dismissal 14 without prejudice. 15 Perhaps Mr. Campbell will give you -- 16 MR. CAMPBELL: We have reached an agreement with 17 respect to a form of dismissal. That agreement is between the 18 property damage, business interruption loss plaintiffs, U.S. 19 Airways and Colgan as well. We hope to have that filed within 20 a day or two. 21 THE COURT: That includes the wrongful death actions 22 as well? 23 MR. CAMPBELL: The wrongful death, personal injury 24 actions involving Flight 175 against U.S. Airways and others 25 were dismissed some time ago. So this is the Flight 175 cases SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 69sn911n 1 as to the property damage and business interruption loss 2 plaintiffs only. We now have an agreement with respect to a 3 form of dismissal as to them. 4 THE COURT: That takes you out of the case. 5 MR. CAMPBELL: It takes us out of the 175 case. I 6 hope to be back with another motion on Flight 11, but the last 7 time I raised that with your Honor you kind of boxed me about 8 the ears. So I'm holding back on that one. We're waiting for 9 the end of discovery on that one. 10 THE COURT: OK. So we are up to number VI. 11 Any comment so far or further questions? 12 21 MC 101, which are the property claims outside of 13 the World Trade Center site -- 14 THE LAW CLERK: Property damage claims. 15 THE COURT: All property damage claims, we have been 16 proceeding with ECF filings. 17 THE LAW CLERK: No. 101 is non-ECF. 18 THE COURT: It is a non-ECF case, but there have been 19 ECF filings, right? Tell us all. 20 THE LAW CLERK: Docketing apparently has been allowing 21 some cases in 21 MC 101 to be filed electronically, and there 22 are certain cases now that are on the 21 MC 101 docket as 23 electronic filing cases, so we need to determine whether or not 24 to transfer the entire case over to ECF or if we want to keep 25 it a paper case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 69sn911n 1 THE COURT: I would like to do it as an ECF case. It 2 is more convenient for everyone. 3 MR. BARRY: Is there some reason why it wouldn't be in 4 97 as well. 5 THE LAW CLERK: We can do it in both, yes. 6 THE COURT: Is 97 an ECF? 7 THE LAW CLERK: No. 8 THE COURT: If there is no objection -- 9 MR. BARRY: The defendants don't have an objection to 10 doing it in both. 11 THE COURT: If there's no objection, I will do it for 12 both. 13 MR. MOLLER: There is no objection. 14 MS. JACOB: Your Honor, Beth Jacob for the Port 15 Authority. Not an objection by any stretch of the imagination. 16 We had an order already in World Trade Seven for electronic 17 filing. I just wanted to alert the court what the clerk does 18 is says if a motion has started paper filing, they will not 19 accept any other papers in that track or whatever on paper. 20 Maybe the court can deal with that. For example, if 21 the complaint was paper filed, the clerk will not accept 22 motions -- well, it won't accept pleadings addressed to that 23 complaint except by paper. If the motion was filed in paper, 24 they won't accept any other papers on that motion except by 25 paper. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 69sn911n 1 THE COURT: The answer is to call -- Ally will be 2 gone. Call Brian and we'll issue the order to the clerk. 3 MS. JACOB: OK. We will do that. 4 THE COURT: We will not have a problem. Just do that. 5 Sometimes the exhibits are voluminous and they come up 6 to me afterwards and I issue an order allowing it. But you can 7 short circuit the process by alerting Brian and he in turn can 8 deal with the clerk. 9 I will issue orders for both 21 MC 101 and 97. 10 The next issue is a trial date. Really what I want to 11 do is to start you thinking about how to develop a trial 12 setting in this. Probably we'll do it by test cases. I have 13 assumed that some of the cases are going to have to try, but I 14 could be pleasantly surprised. 15 What we need to do is to start thinking about how to 16 create a trial methodology. My calendar is up to date. I 17 have, of course, to give priority to criminal cases and I do. 18 I do not schedule trials, except where there are many, 19 many lawyers involved, until cases are ready. Where there are 20 many parties and the lawyers tend to be busy, I will set a 21 trial date in advance. But then it's fixed, and it doesn't get 22 adjusted. 23 I don't think you want that yet, but I am just letting 24 you know that I want to start thinking of trial, and I would 25 like you to start thinking of trial, and I would like to start SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 69sn911n 1 your conversations amongst yourselves in how to try these 2 cases. 3 I think there are two basically two reasons why there 4 would be trials, maybe three. 5 One is there are a number of plaintiffs who 6 psychologically want a trial and do not wish to settle. I 7 believe that some people say this and even believe this but 8 start to have second thoughts when they see some friends and 9 colleagues accept settlements and accept payments. But I'm 10 thinking that there may be a few who will nevertheless wish to 11 try the case. 12 That is their right, and it's my job to give those 13 trials. So I'm not going to duck it, and I don't think any of 14 you as lawyers will duck that responsibility either. If you 15 have those clients, you should start thinking, but you need to 16 think about others who may have other clients as well and some 17 of you may have multiple clients, and we need to be intelligent 18 in how we deal with those issues and you need to be able to put 19 them to me in a way that allows me to resolve them. 20 It is possible also I could obtain some special master 21 to work with you to try to develop a trial methodology. I 22 don't think we're ready for that yet, but I would like to give 23 you the thoughts that I'm starting to think and share that with 24 you and I know that I will be enriched by your thinking on 25 these issues as well. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 69sn911n 1 Another major reason for trying the case is to 2 establish values. I think much of that work has been done in 3 the settlements. You know yourselves the values of cases much 4 better than I know the values of cases. I would only have to 5 educate myself in terms of the remittitur precedents in the 6 Appellate Divisions and in analogous courts in other states. 7 But some of your clients may not, and there may be a need for 8 trials in that setting. I don't think so, but it's possible. 9 A third has to do with the property damage issues. In 10 those cases I think by the time discovery is finished, 11 Mr. Clifford and his colleagues will be able to establish a 12 pretty good sense of value with respect to those cases and a 13 narrow range where there could be differences of opinion. In 14 most contexts those would settle. 15 Everything is more problematic in this context, 16 particularly because there are ceilings for payouts, which 17 complicate things enormously. And it may be that trials will 18 be necessary because of that. 19 I started to think this way. I am not sure that the 20 people who are involved will be able to clarify their thinking 21 until we are more advanced in knowing what's going to happen in 22 the wrongful death and personal injury cases. We have from the 23 beginning created an equitable subordination of the damage 24 cases to the wrongful death and personal injury cases, but I am 25 not familiar with any law that requires it. If we're going to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 69sn911n 1 go in a trial mode that may have to be examined from a legal 2 perspective. I don't know. But, as I say, I wanted to share 3 my thinking with you. 4 I don't think there are other major reasons for trying 5 the cases, but those are enough. So the next time we come 6 together, maybe one or more of you will have some thoughts to 7 progress on my thinking. 8 Mr. Clifford. 9 MR. CLIFFORD: Thank you, your Honor. Your Honor, to 10 the extent that you are able to do so today, if at all, and I'm 11 not pressing the issue, but it certainly might facilitate 12 discussion among us in the intervening period if you were able 13 to share some thinking about one more thought about the 14 possibility of trial, and that is, certainly in the injury and 15 death cases you can deal with the concept of exemplar issues 16 and exemplar cases. It's done all the time. There are a lot 17 of models for that. The same thing for the property damage. 18 I know there's a marked disagreement in the various 19 camps about the vision of any liability trial. Are we dealing 20 with one trial for four planes, are we dealing with one trial 21 for both World Trade Center cases, so therefore three possible 22 trials? Are we splitting up the Pentagon and Pennsylvania 23 cases into one? Certainly, those are things that I know are 24 being kicked around a little bit, and there's a disturbed view 25 about that, and I don't know if your Honor has even gotten that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 69sn911n 1 far in his thinking. 2 THE COURT: I only know there are the issues. I feel 3 if I were to speak on the issue I would not be advancing 4 arguments. I would be detracting from that discussion. Each 5 one of the issues you mention is a hot-button issue. 6 MR. CLIFFORD: Right. 7 THE COURT: Whether a trial is severed as between 8 liability and damages impacts how plaintiffs' lawyers and 9 defendants' lawyers think about cases. 10 I don't want to speak to that because I haven't 11 thought about it, and I don't know how it would apply. I would 12 think that the geography would be important, whether a case is 13 a New York case involving essentially New York law, but 14 possibly also laws of other states, depending where the people 15 in the air came from. But there is a difference between that 16 and the cases where the planes came into the Pentagon, at least 17 there are until I resolve conflicts of law issues. 18 If I resolve the conflicts of law issues, possibly 19 there will not be differences. I don't know. But I don't 20 think it's useful for me to speak to that because I haven't 21 begun to think about those issues in the kind of disciplined 22 way that I would have to do if a motion were put to me. 23 So the answer to your question, Mr. Clifford, is I 24 have not thought very much about these, and I do not wish to 25 think very much about these because I don't want to compromise SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 69sn911n 1 my independence if ever I receive motions. 2 MR. CLIFFORD: OK. 3 THE COURT: The only caveat is that which I expressed 4 to Mr. Migliori. What I've done in past cases, nonjury cases 5 where I'm loath to become involved in the settlement process, 6 but where occasionally after I have had a lot of involvement in 7 a case the parties have wanted me to do that because they 8 preferred to settle rather than to continue spending money and 9 taking risks, what I have done is given them my impressions of 10 the case to allow them to take that into consideration in their 11 discussions with the caveats I mentioned, that it won't subject 12 me to recusal and it won't bind me if I want to change my mind 13 in any way or adhere to what I was thinking in anyway. 14 So I have not thought very much about the conflicts 15 issues. The only way I would do it is if all sides to the 16 controversy wanted me to do it in the context of a settlement 17 discussion. Frankly, I would prefer not to. 18 So much for the trial date. Apart from a commendation 19 on Ally which I keep on loving to do and introducing Brian, I 20 do note that next to Sarah and Beth there's another colleague 21 and Ms. Goldman. 22 Would you like to introduce Ms. Vargas. 23 MS. GOLDMAN: I'm sorry I haven't before. Jeannette 24 Vargas, who has been working on this case for almost a year, 25 just returned from maternity leave and is an active participant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 69sn911n 1 in all this. 2 THE COURT: Lots of luck to you. 3 MS. VARGAS: Thank you, your Honor. 4 THE COURT: Boy? Girl? 5 MS. VARGAS: Little boy. 6 THE COURT: Wonderful. Lots of luck. 7 MS. VARGAS: Thank you. 8 THE COURT: Anybody else wish to be introduced? 9 Mr. Migliori, would you like to be introduced. 10 MR. MIGLIORI: I'm thinking about a third child. 11 THE COURT: What should be our next conference date? 12 MR. MOLLER: Does the beginning of December sound 13 reasonable so that you can get a sense of where we are and 14 where we're going. 15 THE COURT: I think that's good. 16 MR. CLIFFORD: We were hoping for the week of the 17 11th, your Honor. 18 MR. BARRY: That's fine with the defendants, your 19 Honor. 20 THE COURT: How about Friday, December 8? 21 MR. CLIFFORD: With your permission, that's the date I 22 was personally trying to duck. I was just showing Mr. Moller 23 my calendar and where I was going to be on December 8. 24 THE COURT: Wouldn't your wife prefer to be in New 25 York? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 69sn911n 1 MR. CLIFFORD: No, frankly. 2 THE COURT: Off the record. 3 (Discussion off the record) 4 THE COURT: Our next conference will be December 11 at 5 3:00. I have a trial scheduled, and if I need that date for 6 the progress, I may call Mr. Moller or Mr. Barry to advance it 7 to 4:00. But let's count on being here December 11 at 3:00. 8 There are some major Jewish hol holidays coming up and 9 then there's Thanksgiving before I see you again, and that is 10 certainly a holiday that we all can enjoy. Whatever it is, the 11 notion of a new year for the Jewish calendar is a notion I 12 think everyone can share because we all can share in the sense 13 of taking stock in what's important in our lives and resolving 14 to do better in those things that are important. 15 Just like resolutions in January, we make them all in 16 the great spirit of optimism, and then we become frustrated 17 that we are not able to live up on our expectations. But it's 18 better to have the expectations, I feel, than not to do this at 19 all. 20 So in the spirit of always trying to take stock and 21 becoming better to those who love us and whom we love, I wish 22 you all to participate in this aspect of the Jewish new year 23 and for all of us Thanksgiving. 24 Again, my public thanks to everyone. 25 (Adjourned) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300