In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

Filing 4263

TRANSCRIPT of Proceedings re: Conference held on 8/20/2015 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Patricia Nilsen, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/13/2015. Redacted Transcript Deadline set for 10/22/2015. Release of Transcript Restriction set for 12/18/2015.(McGuirk, Kelly)

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1 1 2 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x 4 In Re: METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION 5 ------------------------------x 6 9 1898 (SAS) New York, N.Y. August 20, 2015 2:40 p.m. 7 8 00 CV Before: HON. SHIRA A. SCHEINDLIN 10 District Judge 11 12 APPEARANCES 13 14 15 MILLER AXLINE & SAWYER Attorneys for Plaintiffs BY: DUANE C. MILLER MICHAEL AXLINE ROBIN GREENWALD 16 17 18 McDERMOTT WILL & EMERY LLP Attorneys for ExxonMobil BY: TONY BONGIORNO LISA GERSON STEPHEN J. RICCARDULLI 19 20 SEDGWICK LAW Attorneys for Shell Oil Company BY: PETER CONDRON 21 22 BEVERIDGE & DIAMOND Attorneys for Sunoco, Inc. BY: DANIEL M. KRAININ 23 24 AKIN GUMP STRAUSS HAUER & FELD, LLP Attorneys for Lukoil Americas Corporation BY: KATHERINE M. KATCHEN 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 1 A P P E A R A N C E S (continued) 2 3 4 5 6 7 8 9 10 Observing for the Defendants: WILLIAM STACK J. ANDREW LANGAN COY CONNELLY STEPHANIE WEIRICK BRIAN SULLIVAN JEREMIAH ANDERSON PETER LEIGH CHRIS DANLEY IRA BRAD MATESKY BRENT ALLEN CARLOS BOLLAR THAO PHAM JAMES MESSENGER PAULA SCHAUWECKER ROBERT WILSON SHELLY GEPPERT 11 12 13 Observing by Telephone for Defendants: JENNIFER ASPINALL NED DUNHAM TODD MENSING JESSICA FARLEY 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 1 (In open court) 2 THE COURT: Good afternoon, Ms. Greenwald, Mr. Axline, 3 Mr. Miller, Mr. Bongiorno, Mr. Riccardulli, Ms. Gerson, 4 Mr. Condron, Mr. Krainin, Ms. -- is it Katchen? 5 MS. KATCHEN: It is, your Honor. Good afternoon. 6 THE COURT: 7 Oh, yes, there are phone people. 8 understand there's four people observing by phone: 9 Ms. Aspinal, Mr. Dunham, Mr. Mensing and Ms. Farley. And other folks who are here. Good afternoon. I I do 10 understand that you won't be able to participate; it's too 11 difficult. 12 But you certainly are welcome to listen in. So, so far, all I've done is greet the lawyers. And I 13 was going to turn to the agenda, but my clerk tells me that 14 there are already updates to the agenda based on recent 15 continuing conversations. 16 17 So who would like to report on those items that are no longer for me to determine? 18 MR. BONGIORNO: 19 THE COURT: 20 MR. BONGIORNO: 21 22 I can start, your Honor. Okay. Thank you. Tony Bongiorno for the defense group. With regard to the dispute on damages, or damages 23 discovery for the next four months, we have reached agreement. 24 I think it's a very simple addition to the CMO, in addition to 25 a simple concept. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 1 THE COURT: 2 MR. BONGIORNO: 3 THE COURT: 4 out on my notes. 5 So I don't have to discuss that at all? Correct. The schedule. Okay. I'll just cross it Go ahead. MR. BONGIORNO: And we just agreed that section 5A 6 would read, nonsite-specific damages, period, full stop -- 7 semicolon full stop. 8 9 10 And then with regard to the CMO, Mr. Riccardulli or Mr. -- CMO for marathon disclosures, Mr. Riccardulli and Mr. Axline, I think, just ironed that out. 11 MR. AXLINE: We may have, but before we get to that, 12 your Honor, I did want to put on the record the damages 13 agreement that we reached was based upon a meet-and-confer just 14 before the status conference where we agreed to the language of 15 the CMO, based upon the list of potential topics that 16 Mr. Riccardulli sent to us on Monday, which we thought more 17 reasonable. 18 conferring, even after a written discovery is served. 19 And we have agreed to continue meeting and And the defendants have agreed that they are not 20 intending to serve us with unlimited, even written discovery. 21 So they agreed that they would allow me to put that on the 22 record, which I'm doing now. 23 THE COURT: 24 25 Okay. With respect to CMO 4, who wants to speak? MR. AXLINE: I'll go ahead and start, since I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 1 standing, and Steve can correct me if I get it wrong. 2 CMO 4, as you know, is the information in the 3 Commonwealth's view that's going to allow us to -- help allow 4 us to complete our list of sites where releases occur, releases 5 of MTBE. 6 occurred prior to 1996, when they first began testing for MTBE. 7 So there's a black hole for the Commonwealth there in terms of 8 was MTBE in the gas when the release occurred or not? 9 very interested in getting what the defendants have on that 10 topic, and the CMO 4 declarations will hopefully get us what 11 they have on that topic. 12 We have a problem, because a number of those releases We're The defendants' concern is that before they signed a 13 declaration, they need time to triple check everything and make 14 sure the declaration is correct. 15 was that the defendants would begin providing information on a 16 rolling basis, but not through declarations, but for the 17 defendants who have been previously named in MTBE litigation 18 and been through this rodeo before, they're going to provide 19 the information, they're going to provide their initial 20 responses, by November 1st. 21 So I think what we agreed to For the defendants who are new to the rodeo, they're 22 going to provide their initial responses December 1st. And 23 then everybody will provide their declarations tying things up 24 in a nice bow hopefully December 31st. 25 the -- So I think that's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 1 THE COURT: Mr. Riccardulli, is that an accurate 2 representation with the agreement? 3 MR. RICCARDULLI: It is, your Honor, with a couple 4 extra points for the record. Between the date of the 5 defendants' initial providing of the November 1st or 6 December 1st, during that time, between then and when the 7 declarations are signed, we understood and discussed that the 8 defense would have the ability to supplement that information 9 as well. So it wasn't just a matter of confirming that those 10 initial productions were accurate, but there is an ability to 11 supplement. 12 investigations and due diligence during that time period. Folks may still be trying to wrap up their 13 Additionally, again, just for the record, many 14 defendants have already answered interrogatory responses served 15 by the Commonwealth that provide information related to -- in 16 some of its readily available lists of where MTBE sites have 17 been detected and other information regarding the movement of 18 gasoline within the Commonwealth. 19 already being provided by at least some defendants in advance 20 of this November 1st date. 21 22 THE COURT: So that's already underway. So, once again, I don't need to discuss the topic of CMO 4 declarations any further today, right? 23 MR. BONGIORNO: 24 THE COURT: 25 So the information is Correct. All right. This is going to be the shortest conference on record of all the years of this MDL, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 1 which is very exciting. 2 3 So let's see what is left. disclosure dispute. 4 MR. AXLINE: 5 THE COURT: 6 Okay. Covered persons We haven't resolved that one, right? I actually think we have resolved it. Oh, it got shorter. What is the resolution of that one? 7 MR. AXLINE: Well, the Commonwealth has assured the 8 defendants that we are not limiting our search for responsive 9 information to the three entities that in total were listed 10 under covered persons. And as we said in our letter, we find 11 information, we are adding it to the covered persons list. So 12 I think we've agreed to meeting and conferring about that. If 13 they think there's something we're missing, they'll let us 14 know. 15 something on our own that needs to be added to the list or 16 somebody, we'll add them to the list. 17 doesn't need the Court's intervention today. And if we agree, we'll add them to the list. 18 THE COURT: 19 MR. RICCARDULLI: If we find So I think that issue Mr. Riccardulli? Your Honor, I think that that's 20 right. 21 did not ask for, and I'd ask now, though, is that we do get an 22 updated covered person designation. 23 identified additional entities that I think they've collected 24 search documents from, so we would ask we get that. 25 We've agreed to continue to confer. THE COURT: By when? I think what we I know they've already Let's set a date. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 I need to do 8 1 this work. 2 MR. RICCARDULLI: 3 THE COURT: 4 MR. AXLINE: 5 THE COURT: Two weeks, your Honor. Mr. Axline, is that acceptable? Yes, your Honor. So that would be September 3rd. Please 6 update your covered person by September 3rd, your covered 7 person list. 8 crossed off. 9 So that took care of that topic, which I just The next topic -- and I think the last -- has to do 10 with the deadline for amending the complaint, whether there 11 should be any preamendment discovery. 12 MR. BONGIORNO: 13 THE COURT: 14 that? 15 Have we resolved that? No, your Honor. All right. Do you want to be heard on from me? 16 17 Anybody want to be heard, or do you just want to hear MR. AXLINE: your Honor. We said what we had to say in our letter, We're happy to respond to any -- 18 MR. BONGIORNO: 19 THE COURT: Likewise, your Honor. I guess the only question I have is for 20 the plaintiff. 21 you need in terms of your unfair trade practices claim? 22 Because maybe what you need is so readily available and so 23 simple that defendants can produce it to you quickly. 24 25 Can you be any more specific as to what you say But as a general matter, I agree with the defendants' position that we really don't allow precomplaint discovery. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 1 And this is peculiar here, where you're saying it's false 2 advertising to the public. 3 good handle on it. 4 you need on that one claim? 5 other claim you're ready to amend. But what is it specifically that you say 6 MR. AXLINE: 7 THE COURT: 8 Because I think you said on the Yes. Yes, and you would do that within a month from now? 9 MR. AXLINE: 10 THE COURT: 11 One would think you'd have a pretty Yes. So that would be pretty much by the end of September? 12 MR. AXLINE: 13 THE COURT: Yes. So we don't even need to talk about that. 14 I'll set that as the date to amend the complaint tentatively 15 for one claim, but really I want one date for both. 16 don't I do that after you answer the question. 17 MR. AXLINE: So why The unfair trade practices claim is not 18 limited to information that was published to the public. 19 includes information that was shared among the defendants not 20 available to the Commonwealth that was used to promote their 21 products. 22 It So, for example, if one company told another company, 23 "hey, our MTBE gasoline is the best thing since sliced bread. 24 By the way, there are no groundwater problems with it," that is 25 a communication that is important to us to be more specific in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 1 our unfair trade practices claim. 2 without discovery. 3 We don't have access to it So a lot -- THE COURT: But do you need that information to make 4 an unfair trade practices claim? 5 the claim, but you already have a claim, based on the public 6 information. 7 amended pleading repleading the claim, you're entitled to that 8 discovery, all communications, whether public or private. And so once you complete it, once you file an 9 MR. AXLINE: 10 THE COURT: 11 In other words, that adds to That is true, but we think -It's especially true because I just said it. 12 MR. AXLINE: Sorry, your Honor. The specificity that 13 we're now needing to add to the complaint, however, I think it 14 is going to need to include examples of -- and I think a lot of 15 the promotion occurred between companies, and we don't have 16 that -- 17 THE COURT: You don't have to plead every intercompany 18 communication to state a claim. 19 don't recall any longer the dismissal ground. 20 I dismissed with leave to replead? 21 MR. AXLINE: 22 THE COURT: 23 MR. AXLINE: 24 THE COURT: 25 That can't be the problem. I This is one that Yes. What was the basis for the dismissal? Yes. That was the question: What was the basis for the dismissal? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 1 MR. AXLINE: The basis was we hadn't been sufficiently 2 specific in pleading the claim. 3 the distinction between fraud allegations and unfair trade 4 practices allegations and -- 5 THE COURT: All right. There was a discussion about So based on the public filings 6 alone, you should be able to add enough specificity to pass the 7 Iqbal test and proceed to discovery. 8 you prefiling discovery of these communications between 9 companies is a good precedent, frankly, to set. I don't think that giving I don't 10 believe in precomplaint prefiling discovery. 11 claim, I think you now know in what way it was previously 12 deficient. 13 You must have some of the specifics from the public filings or 14 public statements. 15 If you have a It's just a matter, I would think, of pleading now. MR. AXLINE: Your Honor's decision also said that we 16 need to do this for each defendant. Some of the defendants are 17 newly added, and not all of the defendants are going to have 18 the same truly public published information that we can make 19 specific allegations for those defendants on. 20 this defendant by defendant. 21 THE COURT: So we have to do We already -- Maybe you're both right in a certain 22 sense. If and when you have such information, you move for 23 leave to file an amended complaint as to that particular 24 defendant. 25 cases. That's nothing new. It happens in many of my We've now discovered that there was a defendant we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 1 hadn't previously named who was there on the day of the 2 incident and who was involved in the incident. 3 a person or defendant to our case, and usually the answer is, 4 sure. We want to add 5 So I still think that you should be able to replead 6 the unfair trade practices claim as a general matter against 7 some number of defendants pretty much at the same time that you 8 do the insurance claim so that they're both done at once. 9 then as things proceed, if you add a defendant, you add a 10 defendant. You move for leave to amend and you do it. 11 are cases with nine amended complaints. 12 And it works out. 13 MR. AXLINE: 14 THE COURT: There It's not pretty, but Understood, your Honor. I don't want to hold off this initial 15 repleading response to the Court's decision while you take 16 months of discovery. 17 it's a bad precedent. 18 MR. AXLINE: I don't think that's right. As I said, Can I request, then, that we amend our 19 suggestion of the date for filing the amended complaint, since 20 we are now going to have to add specificity on this claim? 21 THE COURT: 22 MR. AXLINE: 23 THE COURT: 24 25 Yes. For an additional 30 days? Yes. And you would amend once for these two claims by, say, October 23rd. MR. AXLINE: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 1 2 THE COURT: less. Okay. Which is two months from today, more or So that's the date for amending. 3 And try to gather enough information so that the claim 4 passes muster and it's stated against as many defendants as you 5 can at this time. 6 should be named, you'll move for leave to amend. And if you learn that other defendants 7 MR. AXLINE: 8 THE COURT: Thank you, your Honor. So I think that was the one and only 9 issue, then, that required the Court; because the new case, I 10 understand you resolved that, too, and the time to respond is 11 now September 29th. 12 13 So that just completed the agenda, as I said, in record time, 25 minutes. 14 MR. BONGIORNO: 15 THE COURT: Congratulations. It took all these years for an MTBE 16 conference to last 25 minutes, but as long as you're here, I 17 should say, is there anything else anybody needs to raise? 18 Oh, wait. Puerto Rico 2, yes? I did have a note from 19 my clerk here that with respect to Puerto Rico 2, the plaintiff 20 has made a motion to consolidate Puerto Rico 2 with Puerto 21 Rico 1. 22 Defendants oppose that, and I thought, why do we need briefing? 23 Why can't we just discuss that issue as an agenda item? 24 25 And I'm told that there is a briefing schedule. So what's the reason not to consolidate the two? Can somebody from the defendants' side explain to me why I needed a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 1 motion? 2 MR. RICCARDULLI: Yes, your Honor, I can try. Counsel 3 that normally would have addressed Puerto Rico is not here 4 because it wasn't on the agenda. 5 But at least one of the initial concerns that the 6 defendants have is that with the statute of limitations issue 7 being unresolved, that we are concerned about -- and you've got 8 another motion. 9 obviously triggers the SOL filing dates. The original motion where this came up And we are concerned 10 about, with the cases being consolidated, that this is really 11 an attempt to sort of have a relation back argument to the 12 original filing date. 13 THE COURT: And that -- What if I assure you that that argument 14 would not be welcome? In other words, it's just an 15 administrative convenience to consolidate the two, but it does 16 not lead to a relation back argument. 17 2007; one, in 2014. 18 case. 19 motion, plaintiff can argue relation back regardless of whether 20 it's consolidated or not consolidated. 21 argument, they can't base it on, well, you, the Court, agreed 22 to consolidate; therefore, you must amend relation back. 23 would be rejected. 24 relate back whether or not it had been consolidated. 25 our argument on statute of limitations. One case is filed in The 2014 case doesn't become the 2007 In other words, in response to a statute of limitations So if they make such an That But they're welcome to argue, you should That's I don't mind them SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 1 making that argument. 2 argument because you allowed consolidation. 3 able to make that argument. 4 5 But they can't say that's a good MR. RICCARDULLI: You will not be If that's out of the way -- That may resolve it, your Honor. I'd like a chance to talk to our group -- 6 THE COURT: I don't -- 7 MR. RICCARDULLI: The other is issue is there's 8 parties -- there might be, again, issues with regard to parties 9 that were dismissed from Puerto Rico 1 and 2. 10 THE COURT: 11 MR. RICCARDULLI: So there's -- And 2? I'm sorry. There's different 12 defendants. Some that were dismissed in 2 are now being added 13 back in -- dismissed from 1 who are being joined in 2. 14 want to make sure that, again, so it's clear as to which dates 15 and which sites are at issue. 16 THE COURT: I think that would be clear. And we And again, 17 the only argument that can't be made is, the outcome of our 18 motion is known because you agreed to consolidate. 19 only argument they give up. 20 about relation back, or generally timeliness, but not because I 21 agreed to the consolidation. That's the They can still make arguments 22 Do you understand what I'm saying, Mr. Axline? 23 MR. AXLINE: 24 THE COURT: 25 I do, your Honor. Both of you? agreed to consolidate, we win. You can't say, because you That argument will not be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 1 accepted. 2 MR. RICCARDULLI: And the only other issue, Judge, I 3 can flag at this time is that certain discovery was completed 4 already in Puerto Rico 1. 5 were filed, and that's the subject of the second motion. 6 Puerto Rico 2, we don't want to see -- the Puerto Rico 2 7 survives a motion to dismiss and discovery gets open, that 8 we're now reopening discovery that was completed in Puerto 9 Rico -- 10 THE COURT: 11 MR. RICCARDULLI: 12 THE COURT: 14 site-specific areas. 15 As to We only completed certain sites. was completed, right? 13 Obviously the island-wide claims Site specific, but nonsite-specific We took nonsite-specific discovery. Yes, but not the remainder of the Rico 1. 16 That's still to be opened in Puerto MR. RICCARDULLI: That's true, but we don't want to 17 say that because it's a new case, Puerto Rico 2, there's 18 island-wide claims, now we're reopening claims as to the more 19 general claims they have as opposed to the specific sites. 20 THE COURT: I will need a response to that, what you 21 just said to me, from one of the attorneys. 22 allowed you to reopen island-wide discovery? 23 MR. AXLINE: Did you think that I'm similarly handicapped. I'm not the 24 attorney who briefed this, but I will give you my immediate 25 response, which is that I'm not entirely sure what he means by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 1 island-wide discovery. 2 I think that if it's already been completed, we're not going to 3 redo it. 4 would happen in Puerto Rico 2 anyway. 5 we've completed the discovery for the sites that are going to 6 trial. 7 But whatever island-wide discovery is, If there is more that falls into that category, it So my view of it is We're not -THE COURT: He's not talking about trial sites. 8 really isn't. 9 He He's talking about, I guess, general liability issues, I would call it. 10 MR. BONGIORNO: 11 THE COURT: 12 MR. RICCARDULLI: 13 THE COURT: 14 15 16 17 Yes. I got it right. Or knowledge of the Commonwealth. That's right, as a whole. Right. In other words, nothing you do with a particular release. MR. AXLINE: Understood. But both sides, I think, are going to be in Puerto Rico 2 in any event, conducting -THE COURT: Yeah, but that's his whole point. Maybe 18 so, but you can't reopen the general liability discovery which 19 has been completed just because a second action was filed. 20 that extent it's redundant anyway. 21 discovery, so it doesn't allow to you reopen general liability 22 issues just because you filed a new complaint and brought in 23 new defendants. 24 25 MR. AXLINE: To I wouldn't allow redundant Your Honor, I respectfully don't think that general liability discovery, even in Puerto Rico 1, has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 1 2 been concluded. It's been -- THE COURT: I wouldn't know. 3 was completed. 4 open, Mr. Axline? 5 concluded, what's open? 6 I wouldn't know. Mr. Riccardulli said it What do you think is still Since you say you don't agree it's MR. AXLINE: We completed general liability discovery 7 as relevant to the stations that are going to be tried. But 8 for example, we talked about in the last conference with your 9 Honor different ways to solve statewide claims, like 10 statistical evidence. 11 that's pending before the New Hampshire Supreme Court. 12 get to that point in front of your Honor when we conduct 13 additional nonsite-specific discovery in Puerto Rico 2. 14 think we've always anticipated that. 15 was set up. 16 We talked about the New Hampshire case We may I That's the way New Jersey That's the way OCWD was set up. We've been through this in some detail with the remand 17 orders, where the defendant said, we want discovery that 18 doesn't have to do with site-specific sites that are being sent 19 back to remain in this courtroom so we can continue that. 20 so I wouldn't want to be precluded from, for example, 21 conducting discovery in Puerto Rico 1 that's relevant to 22 putting on a statistical case with respect to the remainder of 23 the island. 24 already taken, but I can't predict all of the additional 25 discovery that may -- And So we're not going to duplicate discovery we've SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 1 THE COURT: I must say, this is a more interesting 2 motion than consolidation was. 3 as to whether or not indeed there are open areas for what you 4 might call general liability discovery or not, if it was 5 completed. 6 This may require some briefing So if you can negotiate, please, the consolidation, 7 I'll allow to you brief this one, because this one may really 8 be worth my studying. 9 administrative convenience matter. The other one truly isn't. It's an And I understand what the 10 original fears were, because you are were going to say because 11 you consolidated, there's automatically relation back. 12 gotten rid of that. 13 that motion and basically resolve it on the record today. 14 allow the consolidation with the copy that's on the record. 15 We've That one, I would rather see you withdraw I'd This one is of more concern, because I can't know what 16 you completed and what you didn't complete and whether there 17 really are still open items, so to speak, on general liability 18 discovery, even of Puerto Rico 1. 19 it's called 1 or 2, whether it's a consolidated case. 20 just areas they say they haven't had a chance to discover yet, 21 such as a statistical case. 22 MR. RICCARDULLI: 23 THE COURT: 24 25 upon a rule? So it doesn't matter whether They're Your Honor -- Did the New Hampshire Supreme Court happen How long has it been up there? MR. AXLINE: It's been up there about six months, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 1 Honor. 2 THE COURT: 3 MR. AXLINE: 4 MR. CONDRON: 5 6 7 8 9 defense. Since argument? Since argument was done in -Your Honor, Peter Condron for the I believe the argument was at the end of May. THE COURT: Not that long. In any event, maybe you should resolve one, brief the other. MR. RICCARDULLI: Your Honor, again, we'd like to talk to our -- we can certainly -- just, again, for the record, 10 Puerto Rico 2 is unresolved. And your Honor may recall this, 11 but there came a time when you closed the site list in Puerto 12 Rico 1 and said, if you find additional sites, bring a lawsuit. 13 And that second lawsuit did occur. 14 that we filed were not as to the new sites -- we did not file a 15 site-specific motion. 16 respect to Puerto Rico 2 dealt with the island-wide claims. 17 said, these are completely duplicative of what -- And obviously the motions The motion to dismiss we filed in 18 THE COURT: 19 question being raised here. 20 call it one or two doesn't matter. 21 We issues that we still would want to complete before a trial. 22 That may be, but that doesn't answer the MR. RICCARDULLI: 23 of the focus cases. 24 THE COURT: 25 MR. AXLINE: Mr. Axline just said, whether you There are open discovery Sure, although not before the trial I assume that's what he means. I'm not sure. No, that is what I mean, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 1 2 THE COURT: before the trial on the individual sites, or you do? 3 4 MR. AXLINE: MR. RICCARDULLI: I think what he's talking about is after the first focus site trial were completed -- 7 8 We don't need to do this before the trial on the individual sites. 5 6 That, what, you don't have to do this THE COURT: Where are we up to on that, then? First focus site trial, where are we up to? 9 MR. AXLINE: We're waiting for your Honor's ruling on 10 pending statute of limitations motions. 11 get to the remand issue. 12 And hopefully we'll THE COURT: Okay. 14 MR. AXLINE: Yes. 15 THE COURT: Is that an issue, or that would be time to MR. AXLINE: Well, I would think, given our experience 13 16 17 So we're almost at the remand stage? do that? 18 with New Jersey and Orange County Water District, we're going 19 to be able to get that figured out pretty quickly. 20 been an issue with New Jersey and OCWD. 21 number of issues -- 22 THE COURT: 23 MR. AXLINE: 24 THE COURT: 25 MR. AXLINE: But it has We've worked through a Okay. -- on remand. You mean to get to the point of remand? To get to the point of remand. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 So the 22 1 big issue was: Is this Court going to retain jurisdiction to 2 supervise discovery remaining? 3 THE COURT: But having now done that twice, one would 4 think that's a known answer. 5 MR. AXLINE: One would think. An issue came up in 6 Orange County Water District, for example. 7 still waiting for an opinion from the Court on that, on the 8 question of Shell and BP and whether they're going to be part 9 of the remand order. 10 11 THE COURT: Okay. All right. So we managed to get to 33 minutes. 12 13 Right. And I think we're But is there anything further you want to raise? right. All Thank you. 14 To you folks on the phone, thank you. 15 MR. BONGIORNO: 16 THE COURT: 17 MR. BONGIORNO: 18 19 20 21 22 23 Maybe one thing. One more. Mr. Bongiorno just spoke. Scheduling. Should we set another conference? THE COURT: I don't know. This was such a small agenda, maybe I should wait for you to ask for one. MR. BONGIORNO: That's fine. I didn't know your practice. THE COURT: My practice was to set the next one all 24 the time, and then if you don't need it, you could write. 25 I'm wondering if that's the most efficient. But A lot of folks SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 1 travel for this and might not have, if it hadn't been done 2 quite this way. 3 4 So do you want to just ask for one if and when you need it, or would you rather I set it, as we have always done? 5 6 MR. AXLINE: your Honor. I think it might be useful to set one, We accomplished a lot today, just because -- 7 THE COURT: 8 MR. AXLINE: 9 and forth. Because you had to be here. That's true. There are discovery responses flying back And this question that we've just gotten into a 10 little bit about general discovery after trial sites have been 11 completed is -- 12 THE COURT: 13 MR. AXLINE: 14 THE COURT: Okay. So when should I be looking at? End of September, early October? Okay. The week of the 5th of October is a 15 good week. There's a criminal trial scheduled, but you know I 16 always tell you this: 17 out because nobody really wants to face the consequences of the 18 sentence they'll get if it doesn't, if they get convicted. 19 I can say 4:30, but I can move it up in the day, if it's better 20 for everybody. Criminal trials have a way of pleading 21 MR. BONGIORNO: 22 THE COURT: Sorry, your Honor. So What is the day? I'm going to say Monday, October 5th at 23 4:30, just because it's got the least other 4:30 matters that 24 week. 25 that's available is Friday, equally not your favorite day for Monday may not be your favorite day. The only other one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 1 the travelers. 2 that week. Monday and Friday happen to be the best for me 3 Do you have a preference between those two? 4 MR. AXLINE: 5 THE COURT: Monday, your Honor, is better for me. Let's do the Monday, then. Let's say 6 Monday, October 5th at 4:30, which I could move up if the 7 criminal trial cancels. 8 They do tend to plead well before the trial date. 9 down for 4:30 and let you know. 10 Okay. 11 And we always know way in advance. (Adjourned) Thank you. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 I'll put it

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