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

Filing 4358

TRANSCRIPT of Proceedings re: conference held on 12/22/2015 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Khristine Sellin, [phone]. 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 2/1/2016. Redacted Transcript Deadline set for 2/11/2016. Release of Transcript Restriction set for 4/11/2016.(McGuirk, Kelly)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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In re MTBE

00-CV-1898 (SAS)

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Telephone Conference
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New York, N.Y.
December 22, 2015
3:06 p.m.

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Before:
HON. SHIRA A. SCHEINDLIN,

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District Judge
APPEARANCES
(Via Telephone)

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For Plaintiffs:
WILLIAM PETIT, ESQ.
MICHAEL AXLINE, ESQ.

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For Defendants:
PETER LIGH, ESQ. (Vitol)
ROBERT WILSON, ESQ. (Idemitsu)
ADRIAN SANCHEZ, ESQ. (Peerless)
JAMES HARRIS, ESQ. (Petrobras)
DAVID SCHULTE, ESQ. (Petrobras)
Observing for Defendants:
ELAINE MALDONADO, ESQ. (Total)
ALBENIZ COURET FUENTES, ESQ. (Total)
JAMES PARDO, ESQ. (Liaison)
LISA GERSON, ESQ. (Liaison)

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

Good afternoon.

This is Judge Scheindlin.

Is Mr. Petit on the phone?

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MR. PETIT:

Yes, your Honor.

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THE COURT:

And Mr. Axline?

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MR. AXLINE:

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THE COURT:

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defense counsel.

Yes, your Honor.
And now I'm going to call out the names of

Mr. Ligh?

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MR. LIGH:

Yes, your Honor.

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THE COURT:

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MR. WILSON:

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THE COURT:

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MR. SANCHEZ:

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THE COURT:

Oh, Mr. Sanchez.

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MR. HARRIS:

Good afternoon.

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THE COURT:

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MR. SCHULTE:

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THE COURT:

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MS. MALDONADO:

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THE COURT:

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MR. FUENTES:

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THE COURT:

Mr. Pardo?

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MR. PARDO:

Good afternoon, your Honor.

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THE COURT:

And Ms. Gerson.

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MS. GERSON:

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THE COURT:

Mr. Wilson?
Yes, your Honor.

Good afternoon.

And is it Ms. Sanchez?
Mr. Sanchez.
Mr. Harris?

Mr. Schulte?
Yes, your Honor.

Good afternoon.

Ms. Maldonado?
Yes, your Honor.

Mr. Fuentes?
Yes, your Honor.

Good afternoon.

Yes, your Honor.
Okay.

I have two letters that I have

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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They're both dated December 18th.

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looked at.

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from defense counsel, Mr. Harris, and then I have one from

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Mr. Petit for the plaintiff.

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and there must be some middle ground because if you read the

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plaintiff's letter, they basically present a list of horribles,

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saying that it would result in many, many complex motions,

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which no other defendants are being allowed to make at this

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time.

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So I've read both these letters,

Do you know what that disturbance is?

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straight.

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I'm sorry.

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And I have one

What is that noise on this call?

I can't think

the call unless -- hello?

We can't do it.

Does anybody know?

We can't do the call.

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MR. PETIT:

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that was Mr. Sanchez's line.

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that's when we started hearing it.

We can't do

Your Honor, this is Will Petit.

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THE COURT:

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MR. SANCHEZ:

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THE COURT:

I think

He was the last to get on and
He's in Peru, your Honor.

Oh, okay.
Sorry.

Okay.

Now I can continue, but it says

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basically that there would be endless enormous motions that

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would -- I think the phrase was shut down the court for years,

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although I for some reason can't find that phrase right now.

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Here it is.

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discovery timeline, the logistical nightmare such an approach

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would create, or the prejudice to the Commonwealth and even the

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other defendants, filing summary judgment motions on that many

It says, "Quite apart from the impossible

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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sites would clog the Court's calendar for years."

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obviously my goal was not to have summary judgment motions on

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400 sites.

I didn't think we were talking about discovery on

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400 sites.

Because that's not the way we've been doing this

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case at all.

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site-specific discovery on 400 sites?

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Now

Do the reinstated defendants anticipate

MR. HARRIS:

Your Honor, this is Jim Harris.

May I

respond?

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THE COURT:

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MR. HARRIS:

Please.
The answer is no, your Honor, and we were

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not anticipating any summary judgments on causation.

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had hoped to get from the plaintiffs -- and given the amount of

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time that's passed in this case, we thought it was not an

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unreasonable request -- was an identification of those sites

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that they believe we are connected to, and at this point we're

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not going to challenge that.

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are we connected to and as to those sites, tell us when you

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discovered MTBE.

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defendants, not as to any other defendants.

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up that issue, your Honor, in Phase 2.

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recognition that we are in a different position than the other

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defendants given that we were brought in late and that we had

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been dismissed and were brought back into the case.

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What we

We just want to know what sites

And it would be just as to the reinstated

THE COURT:

Right.

I guess we'd take

It's just I think a

But I think the point of

plaintiff's counsel is that the other defendants are not
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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getting any so-called Phase 2 discovery.

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did discovery on the Phase 1 sites, we had motions, and we're

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going to have a remand for trial.

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are you sort of getting ahead of the other Phase 2 defendants?

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MR. HARRIS:

In other words, we

I guess their view is, why

And if I might respond again, your Honor.

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Because we're in a different position both temporally when we

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were brought in, the fact that we were out, that at least based

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on some discovery that Idemitsu did early on that was answered

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by the plaintiffs, the plaintiffs were able to identify I think

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just 16 sites to which they connected Idemitsu, which as many

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as 10 I think are out that the plaintiff, in those answers to

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interrogatories, say that MTBE was not at those sites before

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2006.

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Idemitsu, we felt that they certainly could do it with respect

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to the three other defendants who have a very narrow focus on

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limitations.

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Honor, that none of the other defendants have.

And if the plaintiffs could do that with respect to

And additionally, we have a laches argument, your

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THE COURT:

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MR. HARRIS:

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Right.
We're just tagalong defendants, anyway.

We're just in an entirely different posture.
THE COURT:

No, I agree, I agree, and I am leaning

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toward the defendant's position on this, but I wanted to

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understand whether the plaintiff's letter is a realistic parade

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of horribles.

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site-specific discovery on 400 sites, full discovery, you know,

I mean, obviously I'm not planning to have full

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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what substances are found and what the hydrogeologists say and

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all of that, and we're not doing site-specific discovery in

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full on those sites.

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well, it's not fair even to the other defendants for these

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defendants to have site-specific discovery on 400 sites.

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you've answered that.

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400 sites.

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Petrobras, which sites we are talking about, and then the only

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question you'll want to know, or they'll want to know, or

And the plaintiff's letter would say,

But

You said there's no way it's going to be

They should identify, as to Vitol, Peerless, and

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you'll want to know is, when is it alleged to have been known.

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That's it.

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contaminants or you're not going to have hydrogeologist experts

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and you're not going to be interested in direction of flow and

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all that kind of stuff.

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think we are, where have you identified we are, and when did

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you know.

So you're not going to find out about other

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MR. HARRIS:

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THE COURT:

It's really as simple as, where do you

That's correct, your Honor.
I don't think that's as burdensome as

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Mr. Petit's letter makes it sound.

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judge" letter.

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So, Mr. Petit.

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MR. PETIT:

I think it was a "scare the

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Your Honor, if I may respond.

This is

Will Petit.

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THE COURT:

Yes.

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MR. PETIT:

In our conversations with Mr. Harris, it

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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was a statute of limitations motion on a site-specific basis.

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THE COURT:

Yes, but what's the realistic number of

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sites?

In other words, if you sit down and give the kind of

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list you gave to Idemitsu and it turns out that you say that

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Vitol is at five sites or Peerless is at ten sites, I mean,

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we're not talking 400.

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sites, probably not a big number, and then they'll want

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interrogatories or document requests or admissions that talk

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about when you knew what.

We're talking a limited number of

Then they may be ready to make a

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summary judgment motion based on limitations or laches.

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think that's --

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MR. PETIT:

I

And your Honor, I just think that that

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particular discovery is also premature, and I'll give you an

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example.

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very general discovery, and it was in Phase 1, and we responded

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to that discovery by objecting that this wasn't limited to the

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trial sites.

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what we thought were the sites they were connected to.

Idemitsu issued us before the statute of limitations

But we gave them, based on initial information,

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THE COURT:

Well, good.

Do that for these defendants.

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MR. PETIT:

Well, for purposes of Idemitsu, it's a

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little bit easier scenario than it is, for example, for Vitol

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and Petrobras, and I'll give an example.

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409 million gallons of MTBE gases were provided to a number of

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different parties on the island, one of which is

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(unintelligible) but also others.

(Unintelligible) and

Huge discovery question.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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Those are questions for discovery that we're going to want to

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take against them and against other parties in Phase 2.

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us to be able to tell Vitol where their gasoline landed is

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premature.

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could for Idemitsu.

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preliminarily was because Idemitsu was a supplier to GPR in

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each location by themselves.

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supply chain.

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Petrobras -- Peerless, which is a terminal operator, their

So for

I don't think we can make that determination as we
The reason why we could for Idemitsu just

They kind of had a dedicated

That's not the case for either Vitol,

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gasoline went to various places throughout the island, and we

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haven't had a chance to conduct that discovery, and according

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to Mr. Harris, they believe that this is a one-way discovery

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train.

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THE COURT:

Well, I was going to speak to that, but I

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wanted to focus on the second page of the defendant's letter,

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which says, "Reinstated defendants were middlemen that sold or

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directed gasoline from one sophisticated party to another

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sophisticated party, most of whom in turn resold to others,

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including retailers."

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another decision on the sophisticated party issue --

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MR. HARRIS:

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THE COURT:

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And I think we've already ruled in

Right.
-- so the fact that they -- who said

right?

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MR. HARRIS:

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THE COURT:

Jim Harris.

I'm sorry, your Honor.

So that's one point.

Then they said they

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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know of no release sites which they directly sold.

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would maybe agree with that, Mr. Petit.

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they say they never owned any storage tanks.

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UNIDENTIFIED SPEAKER:

I think you

I'm not sure.

Then

And --

Underground for Peerless.

Sorry, your Honor.

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THE COURT:

Right.

I see.

I know.

I know.

The

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parentheses says other than Peerless, which are above-ground.

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And there's no other gasoline that defendants directed to

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sophisticated parties for each specific release site and for

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each storage tank, etc. for each site.

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So with all of that, I thought there was some merit on

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defendant's position that they are in a different position than

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other defendants and that they were out, they were brought back

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in, they haven't had any initial discovery because they were

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out, and they may be entitled to at least get started.

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On the other hand, I certainly, reading these letters,

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agree with the plaintiff that I'm not having full site

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discovery on 400 sites.

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I said, as a scare tactic.

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either.

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The real dispute seems to be that you're saying that these

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were -- some of these defendants were big suppliers and it

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would require product tracing to figure out where all their

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gallons went.

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But I think that was put in there, as
I don't think defendants think that

They're not asking for full discovery on 400 sites.

MR. PETIT:

Well, not just that.

It's just going to

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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require discovery on other defendants besides them.

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the four bullet points that Mr. Harris identified in his

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letter -- first, (unintelligible) There are certainly other

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product suppliers that are in this case.

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would fall under those same categories.

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I think

(Unintelligible) They

The second issue is that it just reiterates the fact

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that we would have to take discovery on other parties.

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were limited to a group of stations, I think that that would be

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an easy thing, an easier thing.

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THE COURT:

Peerless, for example, if you

were limited to stations --

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If they

I'm sorry.

I couldn't make you out

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because of the disturbance on the line again.

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limited to what?

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MR. PETIT:

If they were

If they were limited to particular

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stations more readily, like if they were owners and operators,

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I think we would be able to have that analysis more easily.

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THE COURT:
operators, right?

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But they're not.

They're middlemen.

MR. PETIT:

They're not owners and
They're suppliers.

We don't necessarily agree.

I don't want

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to appear we're agreeing.

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suppliers means that there's other discovery involved with

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other defendants.

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MR. HARRIS:

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respond.

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characterizes this.

The fact that they are product

Your Honor, Jim Harris.

If I may

What you quoted in the letter accurately
We directed materials to ports of Puerto

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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Rico.

It goes off the ship, no longer ours, it goes to others

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that resell to the retail operators in Puerto Rico.

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plaintiffs have had going on nine years now in an effort to

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identify them.

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unreasonable to say, just tell us which sites we're connected

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to.

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different position, but at this point we don't have a response

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to what sites are we connected to.

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issue with it to say we're connected to that site.

We were brought in late.

And the

I don't think it's

I guess if they say all 400 sites, that puts us in a

We're not going to take
But also,

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if we're connected to a site, what the date was that you

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discovered.

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these reinstated defendants to get out of all or most of the

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case.

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I think those are simple requests that may allow

THE COURT:

The only thing is, they're saying, we

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can't answer it so directly, we don't know which sites until we

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do product tracing, because if you sold to another party who

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then sold to the retailer, they have to trace where that

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defendant sold before they can tell you where they think you're

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responsible.

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discovery from other defendants.

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That's why Mr. Petit says it would require

MR. PETIT:

Your Honor, even if we were able to

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provide the information that Mr. Harris is requesting on this

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call, if we were to provide that and provide him a list, I

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don't think they're going to necessarily agree with when the

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Commonwealth says it knew of the contamination.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

If we're in

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Phase 2 --

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THE COURT:

Well, it may get us to a denial of summary

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judgment if there's a disputed issue of fact that people can

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point to as to when the Commonwealth knew, but to do that, you

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have to have some evidence to prove the issue of fact in

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dispute.

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You can't just say -MR. PETIT:

Can we make a determination on when the

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Commonwealth knew of MTBE contamination.

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We're certainly going to want to take discovery on what the

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(Unintelligible)

site files say.
THE COURT:

I'm sorry.

I couldn't hear that.

You

want to take discovery as to what?
MR. PETIT:

As to what their site files say.

It's

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more of a complicated issue than Mr. Harris, the reinstated

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defendants make it out to be, and I'm not sure it gets us

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anywhere in the long run.

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MR. HARRIS:

Your Honor, this is Jim Harris.

What I

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suggest is sort of a middle ground approach which is, let's

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start out by taking a look at whether they can identify

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specific sites and what the date that they claim are.

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may be a number of sites that immediately drop out because the

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Commonwealth has a date prior to 2006.

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the date is after 2006, it may be necessary to do some

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additional limited discovery on how the Commonwealth came to

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that particular date, but perhaps we cross that bridge when we

There

As to those sites where

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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come to it.

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THE COURT:

It sounds easy when you say it, but I

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don't know if they can identify the sites at which they say

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you're liable and commit themselves to that until they have

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discovery of other defendants, right?

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says.

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MR. HARRIS:

That's what Mr. Petit

I guess, your Honor, but I won't know

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until I ask, and again, it's a little bit frustrating having us

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brought into the case late to be told even nine years into the

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case that they still don't have enough information to do the

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tracing.

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I wasn't involved -THE COURT:

But that's because we haven't had Phase 2

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discovery.

We've been focusing on the trial sites.

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plaintiffs are in the odd position of being accused of, after

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nine years, not having the information, but I haven't allowed

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that discovery to go forward.

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MR. HARRIS:

They may have some discovery.

So the

Your

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Honor, I guess the question is, what do they know now?

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don't even know.

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THE COURT:

Okay.

We

But to be committed to say, here's

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a list of the sites at which we claim you're liable but we're

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telling you now that we're not committed to this being all of

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them, you're going to accept that answer?

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identify 15 sites but we're not committing ourselves to those

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15, it could turn out to be 315 but right now these are the

If they say, we will

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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only 15 that we can identify, what would you think of that

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answer?

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MR. HARRIS:

I would view that as moving in a positive

direction for my client, your Honor.
THE COURT:

Even though it wouldn't be definitive

until they get discovery of other defendants.
MR. HARRIS:

If that's the case, again, the proof will

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be in the pudding as they're responding to the requests for

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information.

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THE COURT:

Apparently you're not listening exactly

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what I said.

What if they say to you, here's a list of 15

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where we definitely say you're responsible, but we're leaving

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it open, we're not committed to that list, we're not saying it

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won't change, and then a year or two later, they say, oh, and

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it's 100 more sites.

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we misled?

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MR. HARRIS:

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MR. PETIT:

You don't think you would say, boy, were

Well -One way to look at this is what position

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would the reinstated defendants have been in had they not been

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out of the case earlier.

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different position.

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discovery anyway.

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MR. HARRIS:

They wouldn't have been in a

They wouldn't have been entitled to the

I would disagree with that, your Honor.

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Your order on Trammo, Peerless and Trammo, was in July '13.

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The fact discovery ended in October of '13, and we know that
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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they had responded to the Idemitsu request for sites and dates,

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and if we had had the ruling that we currently have with

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respect to needing to show the date of injury, there would have

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been sufficient time to ask those questions and to find out

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what the Court wanted to --

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THE COURT:

Other Phase 2 defendants who aren't in the

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Phase 1 sites at all, have they gotten the minimum level of

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discovery that you're asking for, the identification of sites?

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MR. HARRIS:

I don't know that they asked, your Honor.

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THE COURT:

Well, because maybe they believe the Court

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ruled that no discovery was going forward on Phase 2 until we

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finished Phase 1.

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were told they couldn't, and that's what Mr. Petit is saying

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is, if you'd never been let out and you'd been there all along,

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discovery would essentially have been stayed if you weren't in

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Phase 1.

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So when you say they didn't ask, maybe they

MR. HARRIS:

Well, I would add, your Honor, that I

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think the complexion of the limitations issue changed very

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dramatically when the Court issued its decision in Peerless and

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Trammo in July of '13.

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extent you could prove knowledge of your involvement with

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gasoline trade in Puerto Rico and a date of injury, you can get

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out of the case at that point in time and not have to wait

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until trial.

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circumstance, asking those general questions such as the ones

At that point it was clear that to the

And I would submit to the Court that in that

SOUTHERN DISTRICT REPORTERS, P.C.
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we're asking now would have been most appropriate, and I would

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urge the Court to allow us to proceed on that basis at that

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time.

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THE COURT:

MR. HARRIS:

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THE COURT:

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MR. HARRIS:

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Other than -- all I know of is -I'm sorry?
I guess Idemitsu did, your Honor, and the

other three reinstated defendants are asking to be able to do
the same.

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But how many defendants have been

able to take advantage of that?

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Right.

THE COURT:
many defendants.

I know, but other than Idemitsu, there are

Who else has had that opportunity?

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MR. HARRIS:

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THE COURT:

None that I know of, your Honor.
Right.

So that's the question.

Why are

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these three defendants entitled to special treatment, so to

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speak?

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MR. HARRIS:

Well, your Honor, if I might respond.

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The other way to take a look at it is, is this an appropriate

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opportunity to allow, on the very limited issue of the

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limitations, all the defendants to have that opportunity while

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we await the outcome of the trial of the focus sites in Puerto

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Rico.

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between now and when those cases are tried, and is this an

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opportunity, on the very limited issue of limitations, which

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could be outcome determinative for a whole bunch of sites, to

There is going to be a significant amount of down time

SOUTHERN DISTRICT REPORTERS, P.C.
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have that discovery done now, and not limited to the four

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reinstated defendants.

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THE COURT:

Right.

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liaison everyone else.

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So Mr. Pardo, you represent as

about?

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MR. PARDO:

How many defendants are we talking

Your Honor, Jim Pardo.

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exact number.

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I guess I should have.

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between 12 and 15 defendants, your Honor.

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I'm sorry.

I don't have the

THE COURT:

I didn't anticipate that question.

But I believe there must be somewhere

Including the four reinstated or

excluding?

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MR. PARDO:

Excluding.

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THE COURT:

Oh, my gosh.

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So you think it could be as

many as 16 to 20.

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MR. PARDO:

That's correct, your Honor.

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THE COURT:

Well --

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MR. HARRIS:

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But the question, your Honor, is going to

be the same for that entire pool.

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THE COURT:

Right.

No, I understand that.

The

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question is, how much work is that for the plaintiff?

How many

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hours, months, weeks will that take?

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I think this is getting to be a terribly old case and it should

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move forward even as they're awaiting the remand period, the

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scheduling of the trial, the build-up to trial, the actual

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trial.

Because I agree with you.

I mean, to stay everything for two more years or three
SOUTHERN DISTRICT REPORTERS, P.C.
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I don't think makes any sense.

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you call this very limited discovery, should go forward as to

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all defendants, because I can't really justify why these four

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differ from everybody else.

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I think this discovery, what

So seems to me the defense should get together for all

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16 to 20 and make their requests so that it's identical for

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each of the defendants and then enough time has to be allowed

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for plaintiffs to produce that kind of information.

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limited to which sites and when did the Commonwealth know.

But it is

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That's all.

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earlier in this conference, just the issue of which sites and

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when.

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Not full site discovery, as I started out saying

MR. PETIT:

Your Honor, this is Will Petit.

It sounds

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like what you're suggesting is a conversation we'll be having

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with defense counsel as a whole and defendant's liaison counsel

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as part of the Phase 2.

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THE COURT:

Right.

I am saying that.

I'm saying it

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should be done for everybody because once you start doing one

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thing for one group, another thing for another group, it's

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chaotic, and I don't see why this group is in a special

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position.

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well, Idemitsu got its interrogatories answered and got out and

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all that.

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occurred, but it's one out of 20.

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to deal with the reality today, and I don't see why that

Yes, they can point back three years ago and say,

I don't know.

I don't recall how that anomaly
That's history.

SOUTHERN DISTRICT REPORTERS, P.C.
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Now I have

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limited portion of the Phase 2 discovery shouldn't proceed.

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think it should proceed as to everybody because this remand and

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trial never goes very fast.

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tomorrow.

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over.

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It won't.

I

One thinks it could happen

It will be two years before that trial is

MR. HARRIS:

Your Honor, Jim Harris.

I think we have

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an opportunity to do that.

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together and craft a very focused set of interrogatories and

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make productive use of the time when a whole bunch of the

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The defendants could easily get

defendants are not involved in the trial sites in Puerto Rico.

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THE COURT:

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that's really where I am too.

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And so go ahead and have your meeting, go ahead and craft the

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joint discovery demands.

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they'll write letters and they'll bring it up in a monthly

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conference and all of that, but I think that's the only way to

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proceed at this time.

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think that that's where you should start.

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a group for everybody and we'll take it from there, step by

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step.

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MR. PARDO:

Well, whether everybody likes it or not,
I think that should be done.

I'm sure when plaintiff sees it,

So it's not quite a schedule, but I
Craft the demands as

Your Honor, this is Jim Pardo.

May I have

an opportunity to speak to that?

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THE COURT:

Yes.

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MR. PARDO:

Thank you.

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I hear you.

I will take that

message back to the other defendants who are not newly added
SOUTHERN DISTRICT REPORTERS, P.C.
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here or newly added back in.

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anticipate this directive.

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it.

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I guess I'd like -- I didn't

to be heard on this.

I do appreciate it.

I understand

I may have some folks on my side who want the opportunity

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THE COURT:

Well, I don't know how a defendant can

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oppose being given the right to get discovery.

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doesn't want it can drop out of the group for that purpose and

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say, this is on behalf of everybody except Shell or except

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Exxon.

If that's what you want, fine with me.

So anybody who

But basically

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I'm saying it goes forward as to everybody.

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doesn't want to get discovery, that's up to them.

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have a right to be heard.

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counsel, so they were heard through your representation.

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everybody or nobody.

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discovery, fine, they can exclude themselves from the group.

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But they won't be in a great position to ask for it later

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either, since they decided to forgo the opportunity to get it

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when I offered it.

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That's my ruling.

If somebody
They don't

You're liaison
It's

And anybody who doesn't want any

So why don't you meet with your group, and I'm sure
you'll get back to me.

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Do we have a meeting scheduled in January?

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MR. PARDO:

We do, your Honor.

THE COURT:

Good.

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January 13th right

now.
Maybe you can get the request

together or be heard further then.

Not that I want to revisit

SOUTHERN DISTRICT REPORTERS, P.C.
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this.

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all then.

This is what I think we have to do.

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MR. PARDO:

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ALL COUNSEL:

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All right.

But I'll see you

Thank you, your Honor.

Thank you, your Honor.
o0o

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SOUTHERN DISTRICT REPORTERS, P.C.
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