Filing 73

TRANSCRIPT of Pre-trial Conference held on 4/20/07 before Judge Terrence F. McVerry. Court Reporter: Richard T. Ford. The parties have five (5) business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court or the court reporter/transcriber. Notice of Intent for Redaction of Personal Data Identifiers due by 6/22/2007. (cen )

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MCCLATCHEY v. ASSOCIATED PRESS Doc. 73 Case 3:05-cv-00145-TFM Document 73 Filed 06/08/2007 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA VALENCIA M. McCLATCHEY, Plaintiff, Civil Action vs. No. 05-145 J ASSOCIATED PRESS, Defendant. ___________________________________ Transcript of proceedings on April 20, 2007, United States District Court, Pittsburgh, Pennsylvania, before Terrence F. McVerry, District Judge APPEARANCES: For the Plaintiff: Douglas M. Hall, Esq. John E. Hall, Esq. Robert Penchina, Esq. For the Defendant: Court Reporter: Richard T. Ford, RMR, CRR 619 U.S. Courthouse Pittsburgh, PA 15219 (412) 261-0802 Proceedings recorded by mechanical stenography; transcript produced by computer-aided transcription Case 3:05-cv-00145-TFM Document 73 Filed 06/08/2007 2 Page 2 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Proceedings held in open court; April 20, 2007). THE COURT: Good afternoon. It is Friday, April 20th, 2007, at approximately 2 p.m., the date and time scheduled for a pretrial conference in the matter of Valencia M. McClatchey versus Associated Press, at No. 05-CV-145. Would counsel for the Plaintiff and for the Defendant enter your respective appearances on the record. MR. DOUGLAS HALL: Yes, Your Honor, this is Douglas Hall on behalf of Plaintiff. MR. JOHN HALL: John Hall on behalf of the Plaintiff. MR. PENCHINA: Robert Penchina of the firm Levine Sullivan for the Defendant. THE COURT: Thank you. As you know, this case was previously pending before Judge Gibson in Johnstown, and on February 22nd he issued an order of recusal and the case was reassigned to me. On the 9th of March of this year this Court entered an order denying AP's motion for summary judgment and issued a pretrial scheduling order. I note that the Plaintiff filed its pretrial statement and I believe the defense filed its yesterday and we got a hand-delivered courtesy copy today. The first thing that I want to -- and I recognize Case 3:05-cv-00145-TFM Document 73 Filed 06/08/2007 3 Page 3 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that the case has to do with the 9/11/01 photograph of Flight 93 in Shanksville taken by Valencia McClatchey taken on that date. It wouldn't have been on another date. And I first ask the counsel for the Plaintiff if you persist -- and I don't use that word pejoratively -- in your insistence on a jury trial? MR. DOUGLAS HALL: Yes, Your Honor. THE COURT: And I ask whether or not there have been any settlement negotiations between counsel relative to an amicable resolution of this matter? MR. DOUGLAS HALL: What we have decided, we just spoke on the telephone yesterday, and decided that Plaintiffs are going to make a written offer within one week, by next Friday. Then Defendant is going to have a week to counter that offer. At that point we decided if we are close enough, we would like to pursue a one-day mediation, perhaps a half day mediation, because expenses, we want to keep them down, if possible, but I think we are also in agreement that we don't want that to delay any setting of a trial date because at the moment I don't think we are very close based on where we were at the beginning of the case. THE COURT: Well, you anticipated my next question, and that was going to be ADR. Is ADR a reasonable option at this juncture? And I understand that neither of you will know that until you make a demand and your client reacts. So, Case 3:05-cv-00145-TFM Document 73 Filed 06/08/2007 4 Page 4 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 okay, that's good. Well, it's good for today. We will see how good it is. Let me ask you a few other questions and then I will give you my take on where we are. I notice that in the Plaintiff's pretrial statement you have listed six witnesses and in the defense pretrial you have listed seven witnesses, and there is significant overlap as to who those people are. There are only a small number of people, it appears, who have firsthand knowledge of the operative facts, and you are each going to be calling them for one reason or another, or for your respective reasons. That really takes me to asking Mr. Hall what his best estimate would be of the number of trial days it would take to present your case. MR. DOUGLAS HALL: I would think a day to a day and a half, depending on, obviously, on the cross. Especially because it is considerable overlap of witnesses, I am assuming Defendants will put in their case at the same time that the witness is on the stand the first time. But a day and a half for our case, and I think depending on -THE COURT: Well, I am going to ask the Defendant. MR. PENCHINA: And, in fact, we had conferred on that subject also and I think we both have the sense that between us it would be about three trial days. THE COURT: Three? Case 3:05-cv-00145-TFM Document 73 Filed 06/08/2007 5 Page 5 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. PENCHINA: Three total. THE COURT: One and a half, one and a half? MR. PENCHINA: Yes, Your Honor. THE COURT: Are you factoring into that your openings and closings or just witness presentation? MR. DOUGLAS HALL: I would think that includes openings and closings. THE COURT: So we can try this case with selection and the entire trial in one trial week. And a trial week here is generally four days, Fridays being left open for things like this. But if we have a solid estimate that it would take five days, I don't like to go over the weekend, I would cancel Friday's things and go to trial on Friday. MR. PENCHINA: I think our sense is that the four days is realistic. MR. DOUGLAS HALL: Yes, Your Honor. THE COURT: Okay. The next question is, you have listed 262 exhibits, Mr. Hall. The Defendant has listed 128. I haven't done any cross-checking of those, but there is probably a lot of duplication there too. How many exhibits do you truly think you will be using? MR. DOUGLAS HALL: Out of that list, a lot of those are individual photographs from a website, so they could probably be grouped together. I would say probably 20, 25, in that range. This is just on our case, not rebuttal. Case 3:05-cv-00145-TFM Document 73 Filed 06/08/2007 6 Page 6 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 most. THE COURT: What about you, Mr. Penchina? MR. PENCHINA: I would say in the range of 50 at THE COURT: 50? MR. PENCHINA: 50. THE COURT: Okay. How much time do you need to be ready to go to trial? MR. DOUGLAS HALL: We could be ready to go to trial in two weeks, but -THE COURT: Okay. MR. DOUGLAS HALL: So I guess the answer is we are pretty much ready. THE COURT: And you? MR. PENCHINA: We also conferred on that subject and I think we both thought that June would be the optimum date assuming that would work for the Court. THE COURT: It probably will work for me. I am going to try to get as many cases that are trial ready tried between now and September 1st because I go out of commission then starting a capital homicide case in this room that's scheduled for months. So I will be out of action. So to -- I will be in action, but out of action for all other civil cases during that period of time. So, however, that having been said, one of the things I observe in looking over your respective pretrial Case 3:05-cv-00145-TFM Document 73 Filed 06/08/2007 7 Page 7 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 statements is that you have each issued or cited a number of legal issues that have to be determined, and I hope that you weren't thinking you were going to get oral orders on those legal issues today, because you are not. But it appears to me as though these are matters that would be properly raised in a motion in limine. It is my practice to, when scheduling trial, depending upon the complexity of the case and the complexity of the issues, when scheduling trial I also issue a schedule for the filing of motions in limine and a week's response. That's usually two to three to four weeks out from the trial date so that I have time to be able to rule on those motions in limine before you come traipsing in here and start putting your witnesses on the stand and find out that they are not going to be able to testify. It strikes me, at first blush -- and I have only just glanced through your issues -- but it strikes me as though if you were to prevail on some of your issues, the damages in this case would shrink tremendously. If he were not to prevail, the damages could be quite significant. Right? MR. DOUGLAS HALL: Yes, Your Honor. THE COURT: Okay. Correct me if I'm wrong, but I doubt that I need to hear any testimony in order to rule on these legal issues relative to damages and whatever else you Case 3:05-cv-00145-TFM Document 73 Filed 06/08/2007 8 Page 8 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have raised in here; is that correct? MR. PENCHINA: That is correct, those are matters of law. THE COURT: Okay. Well, then what I would like to do, I don't want to put you under any particular pressure, but rather than giving you a trial date right now -- and the trial date we are looking at would be June 25th. We could give you a firm date there. But it could be earlier or it could be later based upon when you might submit your motions in limine, briefs in support and opposition. In a case like this, my preference would be that you go right back to your office and start working on those motions in limine and get them in to me within two weeks. Then you will each have a week to respond to the other's motion. Then I will have them teed up and we will try to get them ruled upon sooner rather than later because that may prompt the ADR, it may prompt you wanting to come back here and discuss settlement, it may prompt you settling the case on your own, or it may prompt a firm date being scheduled. I could actually give you that date if you wanted it, but I could also give you an earlier date once I got back in my office and looked over the calendar. Because I know I have some time in -- do I have some time in late May? It is really early May, isn't it? In any event, if you decided that June is an Case 3:05-cv-00145-TFM Document 73 Filed 06/08/2007 9 Page 9 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 optimum date, that's an okay time for me and I can -- I won't schedule something on that date. So you can tentatively pencil that in on your calendar. Or else we could just issue a trial order and schedule it on that date and just give them a very early time for motions in limine. Can you do that? Can you get your motions in limine in within a week or two? MR. DOUGLAS HALL: Two weeks for us would be fine. MR. PENCHINA: Two weeks. THE COURT: You will each file at the same time. Then you will each have a week to respond to the other. Then you will have teed up the issues and we will look at them immediately upon receipt and try to rule on them as reasonably fast as we can, given we will already be in May. Right? MR. PENCHINA: Yes. THE COURT: May 11th will be the response date. So hopefully we would have those ruled upon, I can't promise you this date, but I am looking at maybe by June 1st. That gives us a couple weeks and it gives you a couple weeks to see where you are going then. There won't be any experts in this case, right? I see neither of you filed any expert reports. Any need for special trial equipment or anything? We have an Elmo in here and we have -- you can hook up computer-wise to use these plasma screens on each side of the Case 3:05-cv-00145-TFM Document 73 Filed 06/08/2007 10 Page 10 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 jury to set up for -- and these monitors obviously will give you views of the exhibits. You can do the old-fashioned tripod if you like and charts. MR. DOUGLAS HALL: We would probably just use the Elmo and the charts, that's generally how we do it. THE COURT: If you want anything special, like a huge screen, sometimes people bring in a huge screen and put it over there, that's on you. We don't have it. But whatever we have, you can find out from Kelly or our IT department and -- you can't find out from me how you hook up these things because I am not technologically savvy. However we can accommodate you in that regard. And otherwise you can bring in your own equipment for special needs. There will be dates in the pretrial scheduling order for you to submit proposed voir dire questions if you want me to add to our standard voir dire jury instructions, time frame for filing jury instructions, time frame for submitting marked exhibits. I am trying in my practices and procedures that were just revised, I have changed my exhibit procedure whereby you're required to jointly meet and submit joint exhibits, 1, 2, 3, 4, 5, whatever those numbers are. If you are each going to be using the same exhibit, it will be a joint exhibit. Then if there are Plaintiff's exhibits that are different, it will be Plaintiff's Exhibit 11, 12, 13, 14. Then it will be Case 3:05-cv-00145-TFM Document 73 Filed 06/08/2007 11 Page 11 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Defendant's Exhibits 15, 16, 17, 18. So the numbers won't duplicate, they will keep going through. The first grouping will be joint, then Plaintiff's, then Defendant's. Then you will submit marked exhibits to me in advance of the trial; and if either of you have objections to the other's, then to the extent that you can make that known to me in advance of trial, I will try to rule on it in advance of trial. Sometimes you can't until you have some testimony or other evidence, but we will deal with it in that fashion. Okay. I don't think there's anything more that I need to know or cover. Anything you need to know or cover? Any questions? MR. DOUGLAS HALL: No, Your Honor. THE COURT: Comments? MR. PENCHINA: No, Your Honor. THE COURT: Do I remember correctly, Mr. Hall, that you went to school with one of my daughters at Mt. Lebanon High School? MR. DOUGLAS HALL: Yes. THE COURT: Okay. Mr. Hall and one of my daughters were in the same class at Mt. Lebanon High School. I have known Mr. Hall's father since he was a year behind me in law school. We never practiced together. So I know the Hall family. But to be honest with you, it is not going affect anything I am going to do, but I wanted you to know that. Case 3:05-cv-00145-TFM Document 73 Filed 06/08/2007 12 Page 12 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 stories. MR. PENCHINA: I appreciate it, Your Honor, and that does not seem to trouble me at all. THE COURT: Okay. I won't hold that against you either, Mr. Hall. I won't ask my daughter about you. MR. DOUGLAS HALL: She went to Duke also. THE COURT: Yes, that's right, the same college. MR. DOUGLAS HALL: Let's hope she doesn't know any THE COURT: Mr. Hall and I sent our children's inheritance to Duke. I am glad it's not now because it's changed a lot in the last ten years I think. Okay. Well, thanks for coming in and we will move ahead with a tentative trial date of June 25th. Get the motions in limine in, we will rule on them as soon as possible and then see where it takes us. MR. PENCHINA: Thank you. MR. DOUGLAS HALL: Thank you, Your Honor. MR. JOHN HALL: Thanks, Judge. (Record closed). CERTIFICATE 23 24 25 I, Richard T. Ford, certify that the foregoing is a correct transcript from the record of proceedings in the above-titled matter. S/Richard T. Ford __________________________________

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