EFTA00078895.pdf

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 4 DOE 1, et al., : 19-CV-07675 (GBD) 5 Plaintiffs, 6 v. : 500 Pearl Street 7 JEFFREY EPSTEIN, et al., : New York, New York 8 Defendants. : November 21, 2019 X 9 VE, 10 Plaintiff, : 19-CV-07625 (AJN) 11 v. 12 NINE EAST 71st STREET, et al., 13 Defendants. X 14 TRANSCRIPT OF CIVIL CAUSE FOR CONFERENCE 15 BEFORE THE HONORABLE DEBRA C. FREEMAN UNITED STATES MAGISTRATE JUDGE 16 17 APPEARANCES: 18 For Jane Doe 1: ARICK W. FUDALI, ESQ. 19 The Bloom Firm 20 21 [Appearances continue next page.) 22 23 Court Transcriber: MARY GRECO 24 T eWrite Word Processing Service 25 Proceedings recorded by electronic sound recording, transcript produced by transcription service EFTA00078895  bJ 一 笋叼「 渺為渺老D 国仂 。。z『Hza国U " l』J a 喲。鬥 ＜国“ w為＞。「閎嵫 q ． 国U 客渺為U 仂 ． 国仂。． w為 『 閂 巴 怠 靄国zU 国為仂。z ． 国仂。． lJ1 国 出烤qm 呦。什什 口．面烤 「「n . 。、 峭 毫。烤 嘞 口脚口。 〉一 」烤＝加什』 w巴 靜 晶 『 q ．寓。仂圳。習H 『忡』 国仂。． 一 q岷升．』 Ka 廿 , NE 仂 ‘ 9 巋為「閎仂 Q ＜閩為』 国仂。． 曲 z一口巾 Ea 加t 71 医 “ " 『烤。仁什呂〉口 J I仂山口q巾烤加 「「U 。\D I- 喲。鬥 。~~．烤 「H 山 口什一 「m " U"<HU m。H 国仂』 国仂。． 仂HQ 為HU 零n 向廬笔．国吣， 国功C . 尸 I- 白。仂工 仂甸工己H』圃為嘞 崮仂C · 四。一 m 仂。，一 尸巾州 閨尸巾拼口．烤 l'3 一 uj 一 為。m 国為『歲 犬歲吧H.>z ' ESQ . I- a 犬渺閂国 。 弓 晶 Q 国為． 閎 仂 p U渺＜HU m為。U吣 』 蜀仂。． u1 I- 一 為拋 仂『＞為， 国仂C . 鋤 d 一 H』渺z Q。「。~．為m ． 国仂。． 。、 I- 鋤zU 為国霉 ．。仂閎z ' E仂C · 3渺為H 巴 皂 客 渺 z 9 国仂C · I- U渺zH 国 零己H』「器。勾嘞， 国仂C . 曲 一 一 \D bJ 。 尸 14 l与） 14 J對 嘞 EFTA00078896  3 THE COURT: Good morning. MALE SPEAKER: Good morning. FEMALE SPEAKER: Good morning, Your Honor. 4 THE COURT: Ordinarily we'd start by calling the 5 case but we have a number of cases here and rather than do 6 this in a tedious way, we've asked everyone to sign in on an 7 appearance sheet. And I just want to make sure I know who 8 everyone is. So first, on plaintiff's side in these various 9 cases, these are cases, just for the record, these are cases 10 that are brought by various plaintiffs against for shorthand 11 the Estate of Jeffrey Epstein. 12 Can I know who Brad Edwards and Brittany Henderson 13 are? 14 MR. EDWARDS: Yes, Your Honor. Brad Edwards. 15 MS. HENDERSON: Brittany Henderson. 16 THE COURT: Okay. Arick Fudali? 17 MR. FUDALI: Good morning, Your Honor. Arick 18 Fudali. 19 THE COURT: Good morning. Roberta Kaplan? 20 MS. KAPLAN: Good morning, Your Honor. 21 THE COURT: And Kate Donneger [Ph.)? 22 MS. DONNEGER: Good morning, Your Honor 23 THE COURT: Good morning. David Brody, Laura Star, 24 Alan Goldfarb and Andrew Posen [Ph.). 25 MR. BRODY: Good morning, Your Honor. David Brody. EFTA00078897  4 1 MS. STAR: Laura Star. 2 MR. POSEN: Andrew Posen [Ph.]. 3 MR. GOLDFARB: Alan Goldfarb. 4 THE COURT: Got it. Then I have David Boies, Sigrid 5 McCawley, Josh Schiller. 6 MR. BOIES: Good morning, Your Honor. David Boies. 7 MR. SCHILLER: Josh Schiller. Good morning. 8 MS. McCAWLEY: Sigrid McCawley. 9 THE COURT: Got it. Marion Wang and David Mullkoff. 10 MS. WANG: Mariann Wang. Daniel Mullkoff will join 11 me later. 12 THE COURT: Okay. 13 MS. WANG: Good morning. 14 THE COURT: Good morning. And on defendant's side, 15 well, you have a fewer number of people so why don't you just 16 introduce yourselves? 17 MR. MOSKOWITZ: Good morning, Your Honor. Bennet 18 Moskowitz; Troutman Sanders, here with my colleague Charles 19 Glover, and we represent the co-executors of the Estate of 20 Jeffrey E. Epstein as well as with certain exceptions various 21 other defendants in the actions for which we're here today. 22 To explain that a little further -- 23 THE COURT: That's all right. 24 MR. MOSKOWITZ: That's fine. 25 THE COURT: For the time being, that's fine. EFTA00078898  5 MR. MOSKOWITZ: Thank you. 2 THE COURT: All right. So the first thing I want to 3 do is just explain what my role is in these cases and perhaps 4 what my role isn't in these cases. First of all, I don't know 5 how much you all know about the inner workings of the court 6 but when a civil case comes into this court it is assigned to 7 a district judge and it is designated to a magistrate judge. 8 Or a magistrate judge is designated on the case. Having a 9 magistrate judge such as myself designated on a case does not 10 mean that I do anything on the case. It usually doesn't even 11 mean I know that the case is in front of me at all. And 12 certainly, it doesn't give me authority to act. The authority 13 to act comes from an order of reference by the district judge 14 on that case. There is a difference between a designation and 15 a reference. When a district judge refers a case to a 16 magistrate judge, the docket for that case will have an entry 17 that says order of reference. The order of reference will 18 specify what it's for. In these cases, a number of the 19 district judges have referred the cases to me for what's 20 called general pretrial supervision. General pretrial 21 supervision includes supervising the discovery process, 22 certain motions that are not dispositive motions, seeing if I 23 can assist with settlement, scheduling matters. It does not 24 include diapositive motions, making reports and 25 recommendations on dispositive motions unless the order of EFTA00078899  6 1 reference says that. And an order of reference can be 2 anything as narrow as can you work on one very particular 3 thing or can you assist with settlement? To as broad as on 4 the parties' consent it's before you for all purposes. 5 The decision was made, as I understand it, that as 6 an institutional matter all these cases were not going to be 7 placed before a single district judge. But it was also 8 decided that they would be designated to a single magistrate 9 judge so that if the district judges wanted to refer for, for 10 example, discovery supervision or to aid in settlement, that 11 would be before a single magistrate judge, and I am that lucky 12 magistrate judge. But not all of the cases that we've seen 13 come into the court have been referred to me at this time. So 14 you have to look at the dockets in your cases, and new ones as 15 they come in because I'm sure some new ones will come in, and 16 see if there is actually an order of reference. Now, you may 17 see a different magistrate judge designated and it may have 18 slipped through the cracks. A lot of these are just -- they 19 come out of the wheel and it's random. There's one I know 20 that's still showing a designation to Judge Fox. I think it 21 will be re-designated to me. If you're noticing that and 22 you're not noticing a re-designation to me, you can just give 23 our chambers a call and bring it to our attention and we can 24 look into that. 25 But even if they are all designated to me, which I EFTA00078900  7 1 think is the plan, again, they may or may not all be referred 2 to me. Right now there are orders of reference in, for 3 general pretrial supervision, in one, two, three, four, five, 4 six, seven, eight, and I believe there will be nine because 5 Judge Gardephe just signed one, nine of the cases out of 14. 6 Judge Buchwald has one case that is 19-CV-10474. I do not 7 believe she is going to refer. I think she prefers to 8 supervise the case herself. And there are a couple where I 9 just don't know yet. And of course I think there's one that 10 may not even be assigned to a district judge yet. And again, 11 they're still coming in. So just be aware of that because 12 there's a good chance that I'm going to be supervising your 13 case for discovery and for non-dispositive disputes for 14 scheduling, for seeing if I can assist with settlement. But 15 there is also a chance that I will not be. All right? And in 16 particular right now I know that Judge Buchwald does not wish 17 me to supervise hers. 18 In addition, Judge Schofield has two cases right 19 now. They are 19-CV-10475 and 19-CV-10577. I believe she 20 scheduled her own conference a little farther down the road. 21 I think she still wants to go forward with that but I 22 anticipate that at some point either before then or after then 23 she is likely to refer to me as well, but she wants to get a 24 handle on it herself. 25 So district judges are individuals. They handle EFTA00078901  8 1 things in individual ways sometimes. And just be aware 2 dispositive motions will go in front of them unless they are 3 specifically referred to me. And if any order of reference is 4 narrow, you have to look at it, see what it says, and 5 understand that's the particular reason it's before me. All 6 right? 7 So with that said, I nonetheless wanted to give 8 notice to anyone who's on these cases that I was having this 9 conference so that you could be informed, so that you could be 10 present if you have an interest, and you could hear what's 11 said. So that's number one. 12 Number two, I have seen in the press and in some of 13 the correspondence that was put in front of the Court in one 14 of the cases that there's some talk about the estate working 15 toward coming up with a settlement idea, concept, a plan for 16 trying to create a fund or do something. I've also seen some 17 murmurings, I don't know if they're true or not, that not all 18 of the plaintiffs' attorneys might be fully on board with the 19 process that's being set up which may not have been involving 20 them. 21 So I'd like to understand what is going on on that 22 front. And if it is possible to have these cases put on a 23 settlement track, I'd like to make sure that everyone's on 24 board with the process of developing a plan for that and to 25 get a feel for what it's going to entail, potential time line EFTA00078902  9 1 issues that are involved so that we can first see before we 2 get into discovery issues other kinds of squabbles, see if in 3 fact settlement is possible and we can move toward that. 4 So let me start on defendant's side since rumor has 5 it, and see what you have to say on that. 6 MR. MOSKOWITZ: Good morning, Your Honor. Would you 7 like me to stand or -- 8 THE COURT: It's okay. 9 MR. MOSKOWITZ: I'm happy to. I'm glad you raised 10 this because one of the things I wanted to bring to Your 11 Honor's attention is that having assumed, although I don't 12 like assumptions, that you may have seen in the press that 13 there is some kind of a claims program, I wanted to actually 14 take the opportunity today to explain to you briefly what is 15 going on. And since you asked specifically, I'll start there. 16 17 So there is what I feel confident in calling an 18 extraordinary opportunity that has already started that can 19 lead to an alternative to all this litigation. A lot of 20 people here as you can see. And this would be an 21 extraordinary opportunity also to conserve party and judicial 22 resources. And what happened is almost a week ago exactly the 23 co-executors, and this is probably some of the stories you 24 have seen, filed through counsel, not us, through estate 25 counsel in US Virgin Islands where the will is being probated, EFTA00078903  10 1 an application for expedited approval of a claims 2 administration process. So if I can just briefly explain what 3 that action means and what was actually filed because with 4 respect to everyone in the room, I don't know that every story 5 was as accurate as each other. So the filing was for approval 6 to have the process go forward. I fully expect it will be 7 approved. I'm not the Court, obviously. But I have every 8 reason to believe it will be promptly approved. What it is 9 not is actually the nuts and bolts of how the program will 10 work. What it does is it says the executors have selected 11 very esteemed people, Kenneth Feinberg who many view, I 12 believe rightfully so, is the nation's leading claims 13 administration expert. Jordana Feldman, who is also a leading 14 expert. She actually just very recently left her position as 15 deputy special master of the September 11th victim compensation 16 fund. And she has demonstrated through that profound empathy 17 for victims, deep commitment to fairness of process, fairness 18 of outcome. And also Camille Viras (Ph.) who has worked with 19 Mr. Feinberg over many years and is also a leading expert. I 20 selected those three people to design, and then Ms. Feldman to 21 administer the program. However, what's happening now is now 22 that the filing has been made, and this is all in the filing 23 and for any details I don't have I would encourage anyone who 24 has questions on the plaintiff's side to reach out to the 25 program administrators and designers for whom I don't speak EFTA00078904  11 1 because they're fully independent. But what the application 2 laid out is basically the overview of what the program is and 3 is not leaving open what will be the protocol for the design 4 of how the program works on a finer basis to be designed now 5 with input invited from every plaintiff's attorney sitting 6 here today, their clients, and anyone else who's out there 7 that is contemplating bringing a claim against the estate 8 related to, you know, these general sexual abuse allegations. 9 So everyone is invited to provide input. 10 Ms. Feldman will have complete autonomy. She has 11 completed autonomy as to decision-making authority over the 12 program operations and to claim determinations. The estate 13 has no authority, will have no authority to modify or reject 14 Ms. Feldman's decisions on any basis or as to any claim. The 15 claimants will retain their rights unless and until they 16 actually accept a determination. So in other words, this 17 again, all through the filing and what's been reported in the 18 press, everyone in this room, their clients can, it's 19 voluntary, but again, extraordinary opportunity, they can 20 through the entire process of the claims program, find out if 21 they're eligible to receive a claim determination, receive a 22 claim determination, and then decide do they want to accept it 23 or not. Unless they accept it and sign a release, all their 24 legal rights in terms of these lawsuits are preserved. So I 25 will say right now, and it's probably not necessarily a EFTA00078905  12 1 discussion for today, but it's directly relevant to what 2 you've asked me about, we of course on the co-executors side 3 are more than willing to work with plaintiffs to stay actions, 4 toll claims, whatever they need to preserve their claims so 5 they have no prejudice if they also then go forward to see if 6 the claims process can resolve their claim in a much more, you 7 know, general I shall say, more efficient than most civil 8 litigation works in this country, and confidentially which I 9 should point out means that it's a confidential process and 10 the estate itself is bound by certain confidentiality. But 11 the claimants are more than free absent, you know, certain 12 things and we worked on the protocol, to go out and tell their 13 stories if they still want to. So that's what I mean when I 14 say confidential. I know there have been a lot of concerns 15 about people wanting to proceed anonymously so that the claims 16 process is great for that concern too. 17 There is no cap as I understand it on the claims 18 determinations meaning whatever the claims administrators 19 decide in their expert judgment should be awarded to someone 20 there's not going to be an arbitrating limit in any way on 21 what that is. Again, encourage anyone with specific questions 22 in that regard to weigh in on the protocol and to ask the 23 administrators themselves. And I would just like to say that, 24 you know, because of this extraordinary opportunity, I think 25 it would be a bad outcome for the Court, a bad outcome for all EFTA00078906  13 1 the parties in here on both sides for these cases to move full 2 steam ahead while this opportunity is now live. I mean the 3 approval says the timing will be prompt. The claims 4 administrators expect that within 90 days or so of the Court's 5 approval of the filing they'll start receiving claims. This 6 is not going to be a long drawn out thing. And I see no 7 benefit to in the meantime having people, you know, clutter 8 these dockets with things that could probably, we hope, and I 9 expect and hope, will ultimately be avoided forever. 10 THE COURT: All right. One thing I forgot to say up 11 front is you don't see a court reporter sitting here. We do 12 have electronic recording equipment which means that if all 13 goes well there should be a recording of this conference. And 14 so if anyone wants to have a transcript made, that's possible. 15 And this is an on-the-record conference. If you're not 16 familiar with how to go about obtaining a transcript, I think 17 most people are, but if you're not, you can order it through 18 the court's website. The website was just redesigned so the 19 instructions I used to give people about this are now a little 20 different. But I believe that up at the top of the website 21 you'll see a few horizontal lines that suggest maybe there's a 22 drop down menu there. And if you click on it, you should find 23 something about courtroom technology. And if you follow 24 through and scroll down on that page you should find something 25 about what's called electronic court reportings or ECR which EFTA00078907  14 1 will tell you how to go about ordering a transcript. 2 Because we do not have a court reporter and because 3 any record will be through somebody typing up what they are 4 hearing on a recording, I'm going to ask anyone who speaks to 5 introduce yourself each time before you speak so that there's 6 no confusion as to who's speaking. That was Mr. Moskowitz 7 speaking, correct? 8 MR. MOSKOWITZ: Correct, Your Honor. Thank you. 9 THE COURT: Correct. Okay. So if anyone else wants 10 to speak on this subject, just please identify who you are 11 again because there are a lot of you on plaintiff's side. 12 Anyone on plaintiff's side want to say something on the 13 subject? 14 MS. KAPLAN: Your Honor, Roberta Kaplan. I'm 15 counsel for the pseudonymous plaintiff in the case pending 16 before Judge Failla. 17 You heard I think a number of times Mr. Moskowitz 18 use the word extraordinary. And on that word and perhaps that 19 word only I'm in full agreement with Mr. Moskowitz. I have 20 been -- I and many of my counsel here have been litigating in 21 this courthouse for combined decades and we are approached the 22 other side as a group many weeks ago to try to talk about, 23 negotiate, and be involved in a settlement process that would 24 be set up to administer claims for 14, 15, 16-year-old 25 children who were criminally abused, sexually abused by Mr. EFTA00078908  15 1 Epstein. There was radio silence, complete radio silence on 2 their end for week after week despite repeated entreaties from 3 myself and others for us to have involvement in who was 4 selected and who would be in charge of this. These are women 5 who want agency over their lives, number one? Two, what the 6 procedure would be. And three, Your Honor, perhaps most 7 importantly, how much money would be set aside? We have 8 basically no information about what's in the estate, what 9 assets are in the estate, what assets are not in the estate, 10 who is the beneficiary of the estate. We are told it's Mr. 11 Epstein's brother but we have no due diligence on that. And 12 we said to the other side that before this process was created 13 we thought we were entitled to some due diligence about what 14 assets are being put on the table to settle claims and what 15 assets are going to go to Mr. Epstein's brother. We've had 16 zero disclosure about that. We've had zero discussions about 17 who the person would be and how to set it up. I'm always, 18 Your Honor, and I think I speak for everyone here, we are 19 always willing to keep an open mind about settlement. But 20 given the way that this has been created, the secret 21 unilateral way that this has been created that frankly was 22 incredibly disrespectful to these women who have already 23 suffered criminal horrible abuse, we have serious doubts. And 24 the idea that we would stay any of these matters in favor of 25 the process that he described I think would be irrational for EFTA00078909  16 1 many of us. I don't know if Your Honor has any questions but 2 at least in my case I think that's our reaction. 3 THE COURT: I'll hear from anyone else who wants to 4 be heard on this topic. 5 MR. EDWARDS: Sure. Your Honor, Brad Edwards. I'm 6 here on behalf of VE, Catlin [Ph.) Doe, Priscilla Doe, and 7 Lisa Doe for plaintiffs proceeding under pseudonyms. 8 I agree with most of what Ms. Kaplan said. I will 9 say that it seems to me that this slow developing vague 10 settlement concept, once it gets set up it might be okay or it 11 might be good for some people. It doesn't make any sense at 12 all that is an all or nothing thing meaning we have said we're 13 willing to talk settlement as per our Rule 26 obligations with 14 any of the individual plaintiffs. And what I understand is 15 we're not going to do that. It is either you're going to be a 16 part of this process like it or not, and you may like it, you 17 may not, you don't know much about it, we can't tell you much 18 about it, but we hope that you'll just stay your actions while 19 we try to develop what it is or is not. That doesn't seem 20 like it's a very responsible way to approach this. There 21 could also be some discussion on individual claims along the 22 way especially lawsuits that have already proceeded. I'm just 23 going to just give you an example. I filed the case on behalf 24 of VE more than 60 days ago. We've already had our Rule 26 25 conference. I have an initial pretrial conference still set EFTA00078910  17 1 for December 6. I would say that trial could be had by July. 2 These are very simple cases. Why in the world would we be 3 made to stay this case basically for at least 90 more days for 4 this thing to get set up and time to then go through the 5 process. We could have had a trial by the time that we even 6 learn what this process is, so that I could educate my clients 7 on whether or not this might or might not be a good deal. So 8 I think it only makes sense -- 9 THE COURT: Which case are you talking about again? 10 MR. EDWARDS: VE. It is -- 11 THE COURT: Before Judge Nathan? 12 MR. EDWARDS: Yes. 13 THE COURT: So she has a conference on which day? 14 MR. EDWARDS: December 6. And we held our Rule 26 15 conference November 15th. 16 THE COURT: And do you think this case can go to 17 trial that fast? 18 MR. EDWARDS: Yes, Your Honor. I'm very familiar 19 with these cases in that I litigated when Mr. Epstein was 20 alive these same types of cases for over ten years. So I'm 21 intimately familiar with the facts. They are very simple 22 cases to try. I think that by next summer they could be ready 23 for trial. But certainly, we are ready to propound discovery. 24 We have less than five depositions to take in the case and 25 we're ready to go. I don't want that to be delayed because EFTA00078911  18 1 we're trying to set up what is, as you can tell, very slow 2 developing vague concept that might be acceptable or might 3 not. So I just don't want for the plaintiffs who are already 4 pursuing these actions to be prejudiced waiting for something 5 that's being unilaterally created. And we don't have great 6 confidence that many plaintiffs are going to opt in but we 7 have an open mind and are willing once it's set up to engage. 8 That's just not the time right now. So that's our position as 9 it stands. 10 THE COURT: Anyone else? 11 MS. McCAWLEY: This is Sigrid McCawley and myself 12 along with David Boies and Josh Schiller, we represent five of 13 the victims who filed suit to date. 14 I echo Ms. Kaplan's concerns. We have been part of 15 this dialogue with the reach out to help craft something that 16 would be responsible and reasonable for the victims who are at 17 issue here and the fact that the defendants unilaterally 18 selected a group without that input I think is inappropriate. 19 We are learning more about it today obviously so we'll reserve 20 final judgment on that. We are of course open, and our 21 clients are open, to discussing the possibility of settlement 22 but I do have significant concerns about what they filed in 23 the USVI. 24 THE COURT: Anyone else? All right. For cases to 25 settle, I'm going to direct this to defendants, for cases to EFTA00078912  19 1 settle there has to be not just interest on both sides but 2 there has to be seats at the table on both sides. There has 3 to be willingness to participate from both sides. Settlement 4 is uniquely non-unilateral. And if the defendants are really 5 interested in trying to get these cases resolved outside of 6 the litigation context, then you have to do more than just say 7 they're invited to the table and some window of time. There 8 has to be a real concerted effort to get people talking to 9 each other and to get plaintiffs' counsel on board with what 10 you're trying to do. And they may or may not be so readily on 11 board. And you have to, on defendant's side, be willing to 12 have an open mind, you know, and have people who are willing 13 to talk and maybe bend and maybe rethink if plaintiffs have a 14 different idea and the different idea's a good one. So this 15 being presented to them as well this is what it's going to be 16 and you can have some input after we've already figured out 17 some basics may not be sitting real well. 18 MR. FUDALI: May I address that, Your Honor? 19 THE COURT: Sure. 20 MR. MOSKOWITZ: I don't think that that's how we 21 view this. Defendants' counsel are correct. Many of them 22 reached out to us and said they would welcome a claims 23 administration program. It is true that the co-executors 24 vetted and carefully selected Ken Feinberg, Jordana Feldman, 25 and Camille Viras, like I said, unquestionably the leading EFTA00078913  20 1 people in the field, to be independent claims administrators. 2 So this is not a situation where we've set up a -- 3 THE COURT: Right. But they were -- but these 4 independent claims administrators were selected by one side 5 and not agreed upon by both. 6 MR. MOSKOWITZ: Absolutely. And I think Mr. 7 Feinberg's 98 percent or so participation rate in the 9/11 8 fund speaks for itself as well as his experience with the 9 church sexual abuse system, claims process in the BP oil 10 spill. All of these situations, I don't believe that 11 claimants went out and hired Mr. Feinberg yet they were very 12 successful programs. And here nothing's been fully baked. 13 All that was in the public filing, the very public filing that 14 I guess I heard some people aren't aware of the details and I 15 absolutely encourage them to read it, is that the program is 16 now going to be set up. The protocol is everything for how 17 the program works is my understanding. 18 THE COURT: Well, are the names of -- 19 MR. MOSKOWITZ: And that is when the sides should 20 come together and the administrators I fully expect and 21 understand will be in communication if they aren't already. I 22 don't know. 23 THE COURT: Let me interrupt you for a second. 24 MR. MOSKOWITZ: Sure. 25 THE COURT: Are the names of the administrators, the EFTA00078914  21 choice of the administrators, is that fully baked? Or is 2 there a possibility to add someone to that group for example? 3 MR. MOSKOWITZ: I don't know about the latter, but 4 yes, they have been selected as the administrators. I mean 5 another thing I point out is that -- another thing that's 6 unusual in this situation is that the estate is subject to the 7 probate court. So what was presented to them was a very good 8 faith above and beyond effort to. I can assure you, though I 9 don't speak for the estate counsel and I don't speak for the 10 administrators that the co-executors are hiring Ken Feinberg, 11 Jordana Feldman, Camille Viras, have a very sincere desire to 12 have a successful program that can resolve in a much more 13 efficient resolution of claims in a non-adversarial fashion. 14 I mean a lot of careful vetting and due diligence went in on 15 their end and I do understand that some of the plaintiffs' 16 lawyers maybe had different picks of who they wanted to be. 17 Some of them I should say as well were rather inflexible in 18 that regard. And it is correct we didn't choose necessarily 19 who their top people are. But this notion that we've gone out 20 and we're imposing this vague thing on them I don't think it's 21 fair. And again, they're right, it's voluntary. I would hope 22 that they appreciate, like I said, that this is a significant 23 opportunity to resolve claims that will not result in any 24 detriment. 25 I also want to just quickly touch upon Mr. Edwards EFTA00078915  22 1 raised the timing. He did litigate cases not in this court. 2 I think that's a very aggressive view of timing on his end. 3 We haven't even answered the complaint and the action which we 4 have this quote/unquote Rule 26 conference during which we 5 really didn't have much to talk about because we haven't even 6 answered the complaint. I view that as maybe that perhaps 7 fell through on the court's side, not Your Honor, on whether 8 that should occur then. So we had it out of caution. But 9 this notion that we're months away from significant things 10 happening in these cases, I don't know what the basis for that 11 is. 12 THE COURT: So some of the questions that have been 13 raised over here about the size of the fund, what assets are 14 in the estate, what assets are not in the estate, you said 15 that claims would not be capped. But is the fund a certain 16 amount? 17 MR. MOSKOWITZ: I don't have the answer to that 18 question. Certainly that's an issue that should be discussed 19 at this time along with any other issue that plaintiffs want 20 to raise. They should call Ms. Feldman, call Mr. Feinberg, 21 set up times to meet with them. Again, I don't speak for 22 them. But my understanding is they want to hear from all 23 interested parties. They finally made that clear. 24 THE COURT: Well, you're counsel in this case. So 25 if cases settle -- EFTA00078916  23 1 MR. MOSKOWITZ: Sure. 2 THE COURT: -- in this Court, I would think you 3 would need to be involved as well in this process and not 4 just, you know, refer them to somebody else who's not 5 representing a party. So I think you need to be more 6 personally involved, you or your firm or one of the firms 7 involved representing defendants, and try to ensure that there 8 is good dialogue, that there is good communication, and that 9 what plaintiffs' counsel has to say is not falling on deaf 10 ears, is not, you know, not being responded to. 11 MR. MOSKOWITZ: Agree 100 percent and that's fully 12 our intent. This was just filed a week ago. And also, we 13 will be fully involved; however, not at the expense of 14 inserting ourselves into anything that the administrators view 15 as solely within their domain as independent claims 16 administrators. So there's a little question there that yes, 17 we will communicate with them. We encourage plaintiffs' 18 counsel to do the same. We will stay fully involved to find 19 out what's going on. 20 THE COURT: Will you have authority to settle any 21 individual case outside of this framework that you're 22 discussing? 23 MR. MOSKOWITZ: Settlement discussions are always 24 welcome. I don't have any specific authority in that regard 25 but no door is closed. EFTA00078917  24 1 THE COURT: All right. What I'd like to do with 2 respect to settlement is have an update after there's been a 3 period of time when everyone has been conferring and 4 plaintiffs have been at the table through their counsel to 5 give me just a status report on how that's going and whether 6 it's looking promising or whether it's not from anyone's point 7 of view. And that doesn't mean other things can't be handled 8 on a parallel track. But I think that settlement is an 9 important track. Plaintiffs are clearly interested. 10 Defendants are clearly interested. And when everyone's 11 interested in settlement, seems to me that's the first thing 12 you want to all try to do. But it's got to really be a 13 process where everyone really has seats at the table, it's not 14 just lip service to seats at the table, okay, to discuss any 15 and everything that seems important to that process including, 16 you know, how much is in a fund and including, you know, what 17 is in this estate and not, so that plaintiffs understand, it's 18 almost like early disclosure of an insurance policy in a case. 19 Well, what is there? Right. That's one thing that's under 20 Rule 26(a), a part of it, is to understand on plaintiff's side 21 what resources are there that are available towards 22 settlement. That's one reason why that information becomes 23 important. 24 All right. I'm going to move on from that and we'll 25 talk about timing at the end with respect to anything and EFTA00078918  25 1 everything. I know that in some cases defendants haven't even 2 been served much less answered and there may also be motions. 3 There may also be motions to dismiss. I know there is at 4 least a potential statute of limitations issue that's out 5 there that defendants may wish to litigate, may not wish to 6 litigate. Don't know. Can you tell me on defendant's side 7 whether there are any motions planned? 8 MR. MOSKOWITZ: Yes, there are motions planned, Your 9 Honor, and the statute of limitations are certainly relevant 10 to some of those motions. I don't have all the bases for the 11 motions that we'll begin filing I believe starting next week. 12 And actually, I have a quick question if I can get back to 13 that on the timing. Among other things, every plaintiff has 14 asked for punitive damages but those are expressly barred by 15 New York statute and other jurisdictions that they may argue 16 are relevant. So we will be moving to dismiss claims for 17 punitive damages as well. And again, we are developing other 18 bases for motions. 19 THE COURT: Right. As I said, as far as I know I 20 don't have any of these cases for dispositive motions to issue 21 reports and recommendations on dispositive motions. So any 22 such motions remain before the district judge. I can probably 23 with respect to most -- different judges are different, but 24 with respect to most of them, I can probably set a schedule 25 for the motions, but I'm not going to be the one who decides EFTA00078919  26 1 the motions. With respect to scheduling, on any motion of any 2 kind I always appreciate if lawyers talk to one another and 3 propose briefing schedules because, you know, I'm assuming 4 you'll be reasonable. If it looks unreasonable to me like 5 we'll brief this motion in three months and do an opposition 6 three months later I will say no, you're not going to do that. 7 But most times lawyers can propose sensible schedules and, 8 like I said, always appreciate it if you talk to one another. 9 With respect to discovery, if there are dispositive motions, 10 that does not necessarily stay discovery. The default in this 11 Court is it does not stay discovery. There has to be an order 12 from the Court saying discovery is stayed. But it may make 13 sense if there is a dispositive motion to stay discovery in 14 whole or in part, very often what I do in cases is I try to 15 get a feel for what should be done soon, it's not overly 16 burdensome, and where there some reason to do it sooner, what 17 should be put off until later because maybe you save the money 18 on it and maybe it's less important at that initial juncture. 19 And I try to do something that is sensible that allows the 20 case to move in a sensible way with an understanding that 21 motions are pending. So when you confer about discovery when 22 we get there, think about that as well. Don't simply argue to 23 me if there's a motion that it should be all or nothing. You 24 can argue that, but also talk about whether there's some 25 compromise approach that makes sense for the particular needs EFTA00078920  27 1 of the particular case. 2 With respect to settlement, keep one eye on that 3 even if you're engaged in discovery because I'm a firm 4 believer that there are windows where cases are capable of 5 being settled. And sometimes it needs a certain something in 6 discovery to aid that. Now, maybe as part of a claims 7 administration process documentation would be submitted or 8 would be discussed in that separate process anyway, but it may 9 be that you need discovery in the litigation to have in hand 10 certain discovery before you can figure out the right 11 settlement for a particular case. So that might be a higher 12 priority item because if you want to go toward an early 13 settlement there may be certain things in discovery that are 14 particularly important to learn or understand before you are 15 in a position to accept or reject a proposed settlement or to 16 make a proposed settlement. 17 It seems a little bit premature, even though I 18 wanted to get a jump on these cases, to be setting discovery 19 schedules especially in cases where there's not been an 20 answer, certainly in cases where there's not even been 21 service. And especially in cases where there may be a motion 22 in lieu of an answer. But I do want everyone to confer about 23 discovery and I want everyone to submit proposals. The more 24 joint they are, the better. The more you have really 25 conferred the better. When I talk about good faith EFTA00078921  28 1 conference, I don't mean I sent an email and I didn't get a 2 response yet. When I talk about good faith conference I mean 3 you picked up the phone, you spoke to each other, you talked 4 through issues, you tried to work out issues and only if you 5 can't then you bring them to my attention. That goes for 6 discovery along the way. I will not even entertain a 7 discovery dispute if it doesn't appear to me that you fully 8 conferred in good faith. 9 Pet peeve, we're not there yet, pet peeve I get a 10 discovery motion, I get an opposition that says we'll do 11 certain things, I get a reply that says never mind, I have 12 wasted my time reading it. All it tells me is you've had a 13 failure of good faith conference. You should have been able 14 to figure that out through talking to each other rather than 15 spending money on briefing. 16 I'll also note, by the way, that Ms. Kaplan, you 17 sent me, I think you're the one who sent me three binders of 18 courtesy copies of things, yes? Those are your binders? 19 MS. KAPLAN: I believe so. So Your Honor, two 20 issues. One, we have an issue about spoliation that we hope 21 to be decided today. And two, Judge Failla called us 22 yesterday and told us that she wanted you to decide the 23 pseudonymous -- 24 THE COURT: That's fine. 25 MS. KAPLAN: -- motion in our case. So that's what EFTA00078922  29 1 we sent you, Your Honor. 2 THE COURT: That's fine. You don't have to spend 3 your time and money putting together beautiful binders for me. 4 I mean it's very nice, but I have three binders which I've 5 combined into one. I mean I have three binders combined in 6 one. One had, I don't know, maybe four, three documents and I 7 said oops, there's one missing. So instead of sending the one 8 that was missing you sent an entire new binder that had four 9 instead of three. And then there was another one with 10 separate tabs and separate letters and separate cover pages 11 and I just took it all apart and put it all in one and I 12 really didn't even need it at all. But thank you. And then 13 in the binders I did get, with respect to the Jane Doe issue, 14 the one thing that I actually wanted to see which was the two 15 competing proposed orders, one of those was missing from the 16 binder. Defendant's was not in there. So come on, if you're 17 going to give me binders and you're going to give me courtesy 18 copies, at least give me the things that I'm most going to 19 want to see. But save your time, save your energy, save your 20 money. If it's something lengthy that has a lot of exhibits 21 I'm not going to want to print out, yes, courtesy copies are 22 really appreciated. But you can j