Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 1 of 52

# UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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

X

DOE 1, et al.,
: 19-CV-07675 (GBD)
Plaintiffs,
:
v.
: 500 Pearl Street
JEFFREY EPSTEIN, et al.,
: New York, New York
Defendants.
: November 21, 2019
X
VE,
:
Plaintiff,
: 19-CV-07625 (AJN)
v.
:
NINE EAST 71st STREET, et al.,
:
Defendants.
:
X

TRANSCRIPT OF CIVIL CAUSE FOR CONFERENCE BEFORE THE HONORABLE DEBRA C. FREEMAN UNITED STATES MAGISTRATE JUDGE

## APPEARANCES:

For Jane Doe 1: ARICK W. FUDALI, ESQ. The Bloom Firm 85 Delancey Street, Suite 20 New York, New York 10002

[Appearances continue next page.]

Court Transcriber: MARY GRECO
TypeWrite Word Processing Service
211 N. Milton Road
Saratoga Springs, New York 12866

Proceedings recorded by electronic sound recording, transcript produced by transcription service

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 2 of 52

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

2

APPEARANCES CONTINUED:

For VE: BRADLEY J. EDWARDS, ESQ.
BRITTANY HENDERSON, ESQ.
Edwards Pottinger LLC
425 North Andrew Avenue, Suite 2
Fort Lauderdale, Florida 33301

For Financial Trust,
Indyke, Kahn, NES,
Nine East 71st:

BENNET J. MOSKOWITZ, ESQ.
CHARLES GLOVER, ESQ.
Troutman Sanders LLP
875 Third Avenue
New York, New York 10022

For other Plaintiffs: DAVID BOIES, ESQ.
SIGRID McCAWLEY, ESQ.
JOSH SCHULER, ESQ.
Boies Schiller Flexner
401 East Las Olas Blvd., Suite 1200
Fort Lauderdale, Florida 33301

ROBERTA KAPLAN, ESQ.
KATE DONNEGER, ESQ.
DAVID BRODY, ESQ.
LAURA STAR, ESQ.
ALAN GOLDFARB, ESQ.
ANDREW POSEN, ESQ.
MARIANN WANG, ESQ.
DANIEL MULLKOFF, ESQ.

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 3 of 52

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

THE COURT: Good morning.

MALE SPEAKER: Good morning.

FEMALE SPEAKER: Good morning, Your Honor.

THE COURT: Ordinarily we'd start by calling the case but we have a number of cases here and rather than do this in a tedious way, we've asked everyone to sign in on an appearance sheet. And I just want to make sure I know who everyone is. So first, on plaintiff's side in these various cases, these are cases, just for the record, these are cases that are brought by various plaintiffs against for shorthand the Estate of Jeffrey Epstein.

Can I know who Brad Edwards and Brittany Henderson are?

MR. EDWARDS: Yes, Your Honor. Brad Edwards.

MS. HENDERSON: Brittany Henderson.

THE COURT: Okay. Arick Fudali?

MR. FUDALI: Good morning, Your Honor. Arick

Fudali.

THE COURT: Good morning. Roberta Kaplan?

MS. KAPLAN: Good morning, Your Honor.

THE COURT: And Kate Donneger [Ph.]?

MS. DONNEGER: Good morning, Your Honor.

THE COURT: Good morning. David Brody, Laura Star,

Alan Goldfarb and Andrew Posen [Ph.].

MR. BRODY: Good morning, Your Honor. David Brody.

3

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 4 of 52

1

2

3

4

6

7

8

9

10

11

12

13

14

15

16

17

19

21

22

23

24

25

MS. STAR: Laura Star.

MR. POSEN: Andrew Posen [Ph.].

MR. GOLDFARB: Alan Goldfarb.

THE COURT: Got it. Then I have David Boies, Sigrid

5 McCawley, Josh Schiller.

MR. BOIES: Good morning, Your Honor. David Boies.

MR. SCHILLER: Josh Schiller. Good morning.

MS. MCCAWLEY: Sigrid McCawley.

THE COURT: Got it. Marion Wang and David Mullkoff.

MS. WANG: Mariann Wang. Daniel Mullkoff will join

me later.

THE COURT: Okay.

MS. WANG: Good morning.

THE COURT: Good morning. And on defendant's side,

well, you have a fewer number of people so why don't you just

introduce yourselves?

MR. MOSKOWITZ: Good morning, Your Honor. Bennet 18 Moskowitz; Troutman Sanders, here with my colleague Charles Glover, and we represent the co-executors of the Estate of 20 Jeffrey E. Epstein as well as with certain exceptions various other defendants in the actions for which we're here today. To explain that a little further __

THE COURT: That's all right. MR. MOSKOWITZ: That's fine. THE COURT: For the time being, that's fine.

4

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 5 of 52

5

MR. MOSKOWITZ: Thank you.

THE COURT: All right. So the first thing I want to do is just explain what my role is in these cases and perhaps what my role isn't in these cases. First of all, I don't know how much you all know about the inner workings of the court but when a civil case comes into this court it is assigned to a district judge and it is designated to a magistrate judge. Or a magistrate judge is designated on the case. Having a magistrate judge such as myself designated on a case does not mean that I do anything on the case. It usually doesn't even mean I know that the case is in front of me at all. And certainly, it doesn't give me authority to act. The authority to act comes from an order of reference by the district judge on that case. There is a difference between a designation and a reference. When a district judge refers a case to a magistrate judge, the docket for that case will have an entry that says order of reference. The order of reference will 18 specify what it's for. In these cases, a number of the 19 district judges have referred the cases to me for what's called general pretrial supervision. General pretrial supervision includes supervising the discovery process, 22 certain motions that are not dispositive motions, seeing if I can assist with settlement, scheduling matters. It does not include dispositive motions, making reports and recommendations on dispositive motions unless the order of

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

20

21

23

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 6 of 52

6

1 reference says that. And an order of reference can be 2 anything as narrow as can you work on one very particular 3 thing or can you assist with settlement? To as broad as on the parties' consent it's before you for all purposes.

4

5

6

7

9

12

14

16

17

19

22

23

24

25

The decision was made, as I understand it, that as an institutional matter all these cases were not going to be placed before a single district judge. But it was also 8 decided that they would be designated to a single magistrate judge so that if the district judges wanted to refer for, for 10 example, discovery supervision or to aid in settlement, that 11 would be before a single magistrate judge, and I am that lucky magistrate judge. But not all of the cases that we've seen 13 come into the court have been referred to me at this time. So you have to look at the dockets in your cases, and new ones as 15 they come in because I'm sure some new ones will come in, and see if there is actually an order of reference. Now, you may see a different magistrate judge designated and it may have 18 slipped through the cracks. A lot of these are just -- they come out of the wheel and it's random. There's one I know 20 that's still showing a designation to Judge Fox. I think it 21 will be re-designated to me. If you're noticing that and 22 you're not noticing a re-designation to me, you can just give our chambers a call and bring it to our attention and we can look into that.

But even if they are all designated to me, which I

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 7 of 52

7

1 think is the plan, again, they may or may not all be referred to me. Right now there are orders of reference in, for 3 general pretrial supervision, in one, two, three, four, five, six, seven, eight, and I believe there will be nine because Judge Gardephe just signed one, nine of the cases out of 14. Judge Buchwald has one case that is 19-CV-10474. I do not believe she is going to refer. I think she prefers to supervise the case herself. And there are a couple where I just don't know yet. And of course I think there's one that may not even be assigned to a district judge yet. And again, 11 they're still coming in. So just be aware of that because there's a good chance that I'm going to be supervising your case for discovery and for non-dispositive disputes for scheduling, for seeing if I can assist with settlement. But there is also a chance that I will not be. All right? And in particular right now I know that Judge Buchwald does not wish me to supervise hers.

2

4

5

6

7

8

9

10

12

13

14

15

16

17

18

19

20

21

22

24

25

In addition, Judge Schofield has two cases right now. They are 19-CV-10475 and 19-CV-10577. I believe she scheduled her own conference a little farther down the road. I think she still wants to go forward with that but I anticipate that at some point either before then or after then 23 she is likely to refer to me as well, but she wants to get a handle on it herself.

So district judges are individuals. They handle

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 8 of 52

8

1 things in individual ways sometimes. And just be aware dispositive motions will go in front of them unless they are specifically referred to me. And if any order of reference is narrow, you have to look at it, see what it says, and 5 understand that's the particular reason it's before me. All right?

So with that said, I nonetheless wanted to give notice to anyone who's on these cases that I was having this conference so that you could be informed, so that you could be present if you have an interest, and you could hear what's said. So that's number one.

Number two, I have seen in the press and in some of 13 the correspondence that was put in front of the Court in one of the cases that there's some talk about the estate working toward coming up with a settlement idea, concept, a plan for trying to create a fund or do something. I've also seen some murmurings, I don't know if they're true or not, that not all of the plaintiffs' attorneys might be fully on board with the 19 process that's being set up which may not have been involving them.

So I'd like to understand what is going on on that front. And if it is possible to have these cases put on a settlement track, I'd like to make sure that everyone's on 24 board with the process of developing a plan for that and to get a feel for what it's going to entail, potential time line

2

3

4

6

7

8

9

10

11

12

14

15

16

17

18

20

21

22

23

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 9 of 52

9

1 issues that are involved so that we can first see before we get into discovery issues other kinds of squabbles, see if in fact settlement is possible and we can move toward that.

So let me start on defendant's side since rumor has it, and see what you have to say on that.

MR. MOSKOWITZ: Good morning, Your Honor. Would you

like me to stand or --

THE COURT: It's okay.

MR. MOSKOWITZ: I'm happy to. I'm glad you raised this because one of the things I wanted to bring to Your 11 Honor's attention is that having assumed, although I don't like assumptions, that you may have seen in the press that 13 there is some kind of a claims program, I wanted to actually take the opportunity today to explain to you briefly what is going on. And since you asked specifically, I'll start there.

So there is what I feel confident in calling an extraordinary opportunity that has already started that can lead to an alternative to all this litigation. A lot of 20 people here as you can see. And this would be an extraordinary opportunity also to conserve party and judicial resources. And what happened is almost a week ago exactly the co-executors, and this is probably some of the stories you have seen, filed through counsel, not us, through estate 25 counsel in US Virgin Islands where the will is being probated,

2

3

4

5

6

7

8

9

10

12

14

15

16

17

18

19

21

22

23

24

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 10 of 52

10

1 an application for expedited approval of a claims administration process. So if I can just briefly explain what that action means and what was actually filed because with respect to everyone in the room, I don't know that every story was as accurate as each other. So the filing was for approval to have the process go forward. I fully expect it will be approved. I'm not the Court, obviously. But I have every reason to believe it will be promptly approved. What it is not is actually the nuts and bolts of how the program will 10 work. What it does is it says the executors have selected

2

3

4

5

6

7

8

9

11

13

14

15

16

18

19

20

21

23

very esteemed people, Kenneth Feinberg who many view, I 12 believe rightfully so, is the nation's leading claims administration expert. Jordana Feldman, who is also a leading expert. She actually just very recently left her position as deputy special master of the September 11th victim compensation fund. And she has demonstrated through that profound empathy 17 for victims, deep commitment to fairness of process, fairness of outcome. And also Camille Viras [Ph.] who has worked with Mr. Feinberg over many years and is also a leading expert. I selected those three people to design, and then Ms. Feldman to administer the program. However, what's happening now is now 22 that the filing has been made, and this is all in the filing and for any details I don't have I would encourage anyone who 24 has questions on the plaintiff's side to reach out to the 25 program administrators and designers for whom I don't speak

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 11 of 52

11

1 because they're fully independent. But what the application laid out is basically the overview of what the program is and is not leaving open what will be the protocol for the design of how the program works on a finer basis to be designed now with input invited from every plaintiff's attorney sitting here today, their clients, and anyone else who's out there that is contemplating bringing a claim against the estate related to, you know, these general sexual abuse allegations. So everyone is invited to provide input.

2

3

4

5

6

7

8

9

10

13

14

15

17

18

19

20

21

22

23

Ms. Feldman will have complete autonomy. She has 11 completed autonomy as to decision-making authority over the 12 program operations and to claim determinations. The estate has no authority, will have no authority to modify or reject Ms. Feldman's decisions on any basis or as to any claim. The claimants will retain their rights unless and until they 16 actually accept a determination. So in other words, this again, all through the filing and what's been reported in the press, everyone in this room, their clients can, it's voluntary, but again, extraordinary opportunity, they can through the entire process of the claims program, find out if they're eligible to receive a claim determination, receive a claim determination, and then decide do they want to accept it or not. Unless they accept it and sign a release, all their 24 legal rights in terms of these lawsuits are preserved. So I 25 will say right now, and it's probably not necessarily a

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 12 of 52

12

discussion for today, but it's directly relevant to what 2 you've asked me about, we of course on the co-executors side are more than willing to work with plaintiffs to stay actions, toll claims, whatever they need to preserve their claims so they have no prejudice if they also then go forward to see if the claims process can resolve their claim in a much more, you know, general I shall say, more efficient than most civil litigation works in this country, and confidentially which I should point out means that it's a confidential process and the estate itself is bound by certain confidentiality. But the claimants are more than free absent, you know, certain things and we worked on the protocol, to go out and tell their 13 stories if they still want to. So that's what I mean when I say confidential. I know there have been a lot of concerns about people wanting to proceed anonymously so that the claims process is great for that concern too.

1

3

4

5

6

7

8

9

10

11

12

14

15

16

17

18

19

21

22

23

24

25

There is no cap as I understand it on the claims determinations meaning whatever the claims administrators decide in their expert judgment should be awarded to someone 20 there's not going to be an arbitrating limit in any way on what that is. Again, encourage anyone with specific questions in that regard to weigh in on the protocol and to ask the administrators themselves. And I would just like to say that, you know, because of this extraordinary opportunity, I think it would be a bad outcome for the Court, a bad outcome for all

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 13 of 52

13

the parties in here on both sides for these cases to move full 2 steam ahead while this opportunity is now live. I mean the 3 approval says the timing will be prompt. The claims administrators expect that within 90 days or so of the Court's 5 approval of the filing they'll start receiving claims. This is not going to be a long drawn out thing. And I see no 7 benefit to in the meantime having people, you know, clutter these dockets with things that could probably, we hope, and I expect and hope, will ultimately be avoided forever.

THE COURT: All right. One thing I forgot to say up front is you don't see a court reporter sitting here. We do have electronic recording equipment which means that if all 13 goes well there should be a recording of this conference. And so if anyone wants to have a transcript made, that's possible. 15 And this is an on-the-record conference. If you're not familiar with how to go about obtaining a transcript, I think most people are, but if you're not, you can order it through the court's website. The website was just redesigned so the instructions I used to give people about this are now a little different. But I believe that up at the top of the website you'll see a few horizontal lines that suggest maybe there's a drop down menu there. And if you click on it, you should find something about courtroom technology. And if you follow 24 through and scroll down on that page you should find something about what's called electronic court reportings or ECR which

1

4

6

8

9

10

11

12

14

16

17

18

19

20

21

22

23

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 14 of 52

14

1 will tell you how to go about ordering a transcript.

Because we do not have a court reporter and because any record will be through somebody typing up what they are hearing on a recording, I'm going to ask anyone who speaks to introduce yourself each time before you speak so that there's no confusion as to who's speaking. That was Mr. Moskowitz speaking, correct?

MR. MOSKOWITZ: Correct, Your Honor. Thank you. THE COURT: Correct. Okay. So if anyone else wants to speak on this subject, just please identify who you are again because there are a lot of you on plaintiff's side. Anyone on plaintiff's side want to say something on the subject?

You heard I think a number of times Mr. Moskowitz use the word extraordinary. And on that word and perhaps that 19 word only I'm in full agreement with Mr. Moskowitz. I have 20 been I and many of my counsel here have been litigating in this courthouse for combined decades and we are approached the other side as a group many weeks ago to try to talk about, negotiate, and be involved in a settlement process that would be set up to administer claims for 14, 15, 16-year-old children who were criminally abused, sexually abused by Mr.

MS. KAPLAN: Your Honor, Roberta Kaplan. I'm

counsel for the pseudonymous plaintiff in the case pending

before Judge Failla.

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

21

22

23

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 15 of 52

15

1 Epstein. There was radio silence, complete radio silence on 2 their end for week after week despite repeated entreaties from 3 myself and others for us to have involvement in who was 4 selected and who would be in charge of this. These are women who want agency over their lives, number one? Two, what the procedure would be. And three, Your Honor, perhaps most 7 importantly, how much money would be set aside? We have 8 basically no information about what's in the estate, what assets are in the estate, what assets are not in the estate, who is the beneficiary of the estate. We are told it's Mr. Epstein's brother but we have no due diligence on that. And we said to the other side that before this process was created we thought we were entitled to some due diligence about what assets are being put on the table to settle claims and what 15 assets are going to go to Mr. Epstein's brother. We've had zero disclosure about that. We've had zero discussions about who the person would be and how to set it up. I'm always, 18 Your Honor, and I think I speak for everyone here, we are 19 always willing to keep an open mind about settlement. But given the way that this has been created, the secret unilateral way that this has been created that frankly was 22 incredibly disrespectful to these women who have already 23 suffered criminal horrible abuse, we have serious doubts. And 24 the idea that we would stay any of these matters in favor of the process that he described I think would be irrational for

5

6

9

10

11

12

13

14

16

17

20

21

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 16 of 52

16

1 many of us. I don't know if Your Honor has any questions but at least in my case I think that's our reaction.

THE COURT: I'll hear from anyone else who wants to be heard on this topic.

MR. EDWARDS: Sure. Your Honor, Brad Edwards. I'm here on behalf of VE, Catlin [Ph.] Doe, Priscilla Doe, and Lisa Doe for plaintiffs proceeding under pseudonyms.

I agree with most of what Ms. Kaplan said. I will say that it seems to me that this slow developing vague settlement concept, once it gets set up it might be okay or it 11 might be good for some people. It doesn't make any sense at all that is an all or nothing thing meaning we have said we're 13 willing to talk settlement as per our Rule 26 obligations with any of the individual plaintiffs. And what I understand is we're not going to do that. It is either you're going to be a 16 part of this process like it or not, and you may like it, you may not, you don't know much about it, we can't tell you much 18 about it, but we hope that you'll just stay your actions while we try to develop what it is or is not. That doesn't seem like it's a very responsible way to approach this. There could also be some discussion on individual claims along the way especially lawsuits that have already proceeded. I'm just 23 going to just give you an example. I filed the case on behalf of VE more than 60 days ago. We've already had our Rule 26 conference. I have an initial pretrial conference still set

2

3

4

5

6

7

8

9

10

12

14

15

17

19

20

21

22

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 17 of 52

17

1 for December 6. I would say that trial could be had by July. 2 These are very simple cases. Why in the world would we be made to stay this case basically for at least 90 more days for this thing to get set up and time to then go through the 5 process. We could have had a trial by the time that we even 6 learn what this process is, so that I could educate my clients on whether or not this might or might not be a good deal. So I think it only makes sense --

THE COURT: Which case are you talking about again?

MR. EDWARDS: VE. It is

THE COURT: Before Judge Nathan?

MR. EDWARDS: Yes.

THE COURT: So she has a conference on which day? MR. EDWARDS: December 6. And we held our Rule 26 conference November 15th.

THE COURT: And do you think this case can go to 17 trial that fast?

MR. EDWARDS: Yes, Your Honor. I'm very familiar with these cases in that I litigated when Mr. Epstein was 20 alive these same types of cases for over ten years. So I'm intimately familiar with the facts. They are very simple 22 cases to try. I think that by next summer they could be ready 23 for trial. But certainly, we are ready to propound discovery. We have less than five depositions to take in the case and 25 we're ready to go. I don't want that to be delayed because

3

4

7

8

9

10

11

12

13

14

15

16

18

19

21

24

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 18 of 52

18

1 we're trying to set up what is, as you can tell, very slow developing vague concept that might be acceptable or might not. So I just don't want for the plaintiffs who are already 4 pursuing these actions to be prejudiced waiting for something 5 that's being unilaterally created. And we don't have great confidence that many plaintiffs are going to opt in but we have an open mind and are willing once it's set up to engage. That's just not the time right now. So that's our position as it stands.

THE COURT: Anyone else?

MS. MCCAWLEY: This is Sigrid McCawley and myself 12 along with David Boies and Josh Schiller, we represent five of the victims who filed suit to date.

I echo Ms. Kaplan's concerns. We have been part of this dialogue with the reach out to help craft something that would be responsible and reasonable for the victims who are at 17 issue here and the fact that the defendants unilaterally selected a group without that input I think is inappropriate. We are learning more about it today obviously so we'll reserve final judgment on that. We are of course open, and our 21 clients are open, to discussing the possibility of settlement but I do have significant concerns about what they filed in the USVI.

THE COURT: Anyone else? All right. For cases to 25 settle, I'm going to direct this to defendants, for cases to

2

3

6 10

7

8

9

10

11

13

14

15

16

18

19

20

22

23

24

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 19 of 52

19

1 settle there has to be not just interest on both sides but there has to be seats at the table on both sides. There has to be willingness to participate from both sides. Settlement is uniquely non-unilateral. And if the defendants are really interested in trying to get these cases resolved outside of the litigation context, then you have to do more than just say 7 they're invited to the table and some window of time. There has to be a real concerted effort to get people talking to each other and to get plaintiffs' counsel on board with what you're trying to do. And they may or may not be so readily on board. And you have to, on defendant's side, be willing to have an open mind, you know, and have people who are willing to talk and maybe bend and maybe rethink if plaintiffs have a different idea and the different idea's a good one. So this being presented to them as well this is what it's going to be and you can have some input after we've already figured out some basics may not be sitting real well.

2

3

4

5

6

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

25

MR. FUDALI: May I address that, Your Honor? THE COURT: Sure.

MR. MOSKOWITZ: I don't think that that's how we view this. Defendants' counsel are correct. Many of them reached out to us and said they would welcome a claims administration program. It is true that the co-executors 24 vetted and carefully selected Ken Feinberg, Jordana Feldman, and Camille Viras, like I said, unquestionably the leading

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 20 of 52

20

1 people in the field, to be independent claims administrators. So this is not a situation where we've set up a --

THE COURT: Right. But they were but these independent claims administrators were selected by one side and not agreed upon by both.

MR. MOSKOWITZ: Absolutely. And I think Mr. Feinberg's 98 percent or so participation rate in the 9/11 fund speaks for itself as well as his experience with the church sexual abuse system, claims process in the BP oil spill. All of these situations, I don't believe that 11 claimants went out and hired Mr. Feinberg yet they were very successful programs. And here nothing's been fully baked. All that was in the public filing, the very public filing that I guess I heard some people aren't aware of the details and I absolutely encourage them to read it, is that the program is now going to be set up. The protocol is everything for how the program works is my understanding.

THE COURT: Let me interrupt you for a second. MR. MOSKOWITZ: Sure. THE COURT: Are the names of the administrators, the

THE COURT: Well, are the names of

MR. MOSKOWITZ: And that is when the sides should come together and the administrators I fully expect and understand will be in communication if they aren't already. I don't know.

2

3

4

5

6

7

8

9

10

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 21 of 52

21

1 choice of the administrators, is that fully baked? Or is there a possibility to add someone to that group for example?

MR. MOSKOWITZ: I don't know about the latter, but yes, they have been selected as the administrators. I mean another thing I point out is that -- another thing that's unusual in this situation is that the estate is subject to the 7 probate court. So what was presented to them was a very good faith above and beyond effort to. I can assure you, though I don't speak for the estate counsel and I don't speak for the administrators that the co-executors are hiring Ken Feinberg, 11 Jordana Feldman, Camille Viras, have a very sincere desire to have a successful program that can resolve in a much more efficient resolution of claims in a non-adversarial fashion. I mean a lot of careful vetting and due diligence went in on their end and I do understand that some of the plaintiffs' lawyers maybe had different picks of who they wanted to be. Some of them I should say as well were rather inflexible in that regard. And it is correct we didn't choose necessarily who their top people are. But this notion that we've gone out 20 and we're imposing this vague thing on them I don't think it's 21 fair. And again, they're right, it's voluntary. I would hope that they appreciate, like I said, that this is a significant opportunity to resolve claims that will not result in any detriment.

2

3

4

5

6

8

9

10

12

13

14

15

16

17

18

19

22

23

24

25

I also want to just quickly touch upon Mr. Edwards

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 22 of 52

22

1 raised the timing. He did litigate cases not in this court. I think that's a very aggressive view of timing on his end. We haven't even answered the complaint and the action which we 4 have this quote/unquote Rule 26 conference during which we really didn't have much to talk about because we haven't even answered the complaint. I view that as maybe that perhaps fell through on the court's side, not Your Honor, on whether that should occur then. So we had it out of caution. But this notion that we're months away from significant things happening in these cases, I don't know what the basis for that is.

2

3

5

6

7

8

9

10

11

12

14

16

17

18

19

20

21

23

24

25

THE COURT: So some of the questions that have been 13 raised over here about the size of the fund, what assets are in the estate, what assets are not in the estate, you said 15 that claims would not be capped. But is the fund a certain amount?

MR. MOSKOWITZ: I don't have the answer to that question. Certainly that's an issue that should be discussed at this time along with any other issue that plaintiffs want to raise. They should call Ms. Feldman, call Mr. Feinberg, set up times to meet with them. Again, I don't speak for 22 them. But my understanding is they want to hear from all interested parties. They finally made that clear.

THE COURT: Well, you're counsel in this case. So if cases settle

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 23 of 52

23

MR. MOSKOWITZ: Sure.

THE COURT: in this Court, I would think you would need to be involved as well in this process and not just, you know, refer them to somebody else who's not representing a party. So I think you need to be more 6 personally involved, you or your firm or one of the firms 7 involved representing defendants, and try to ensure that there is good dialogue, that there is good communication, and that what plaintiffs' counsel has to say is not falling on deaf ears, is not, you know, not being responded to.

MR. MOSKOWITZ: Agree 100 percent and that's fully our intent. This was just filed a week ago. And also, we will be fully involved; however, not at the expense of inserting ourselves into anything that the administrators view as solely within their domain as independent claims administrators. So there's a little question there that yes, we will communicate with them. We encourage plaintiffs' 18 counsel to do the same. We will stay fully involved to find out what's going on.

MR. MOSKOWITZ: Settlement discussions are always 24 welcome. I don't have any specific authority in that regard but no door is closed.

THE COURT: Will you have authority to settle any 21 individual case outside of this framework that you're discussing?

1

2

3

4

5

8

9

10

11

12

13

14

15

16

17

19

20

22

22

23

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 24 of 52

24

THE COURT: All right. What I'd like to do with 2 respect to settlement is have an update after there's been a period of time when everyone has been conferring and plaintiffs have been at the table through their counsel to give me just a status report on how that's going and whether it's looking promising or whether it's not from anyone's point of view. And that doesn't mean other things can't be handled on a parallel track. But I think that settlement is an important track. Plaintiffs are clearly interested.

Defendants are clearly interested. And when everyone's interested in settlement, seems to me that's the first thing you want to all try to do. But it's got to really be a process where everyone really has seats at the table, it's not just lip service to seats at the table, okay, to discuss any and everything that seems important to that process including, you know, how much is in a fund and including, you know, what is in this estate and not, so that plaintiffs understand, it's almost like early disclosure of an insurance policy in a case. 19 Well, what is there? Right. That's one thing that's under Rule 26 (a), a part of it, is to understand on plaintiff's side what resources are there that are available towards settlement. That's one reason why that information becomes important.

All right. I'm going to move on from that and we'll talk about timing at the end with respect to anything and

1

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

20

21

22

23

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 25 of 52

25

everything. I know that in some cases defendants haven't even been served much less answered and there may also be motions. There may also be motions to dismiss. I know there is at least a potential statute of limitations issue that's out there that defendants may wish to litigate, may not wish to 6 litigate. Don't know. Can you tell me on defendant's side whether there are any motions planned?

MR. MOSKOWITZ: Yes, there are motions planned, Your Honor, and the statute of limitations are certainly relevant to some of those motions. I don't have all the bases for the 11 motions that we'll begin filing I believe starting next week. And actually, I have a quick question if I can get back to that on the timing. Among other things, every plaintiff has 14 asked for punitive damages but those are expressly barred by New York statute and other jurisdictions that they may argue are relevant. So we will be moving to dismiss claims for punitive damages as well. And again, we are developing other 18 bases for motions.

THE COURT: Right. As I said, as far as I know I don't have any of these cases for dispositive motions to issue 21 reports and recommendations on dispositive motions. So any such motions remain before the district judge. I can probably 23 with respect to most different judges are different, but 24 with respect to most of them, I can probably set a schedule for the motions, but I'm not going to be the one who decides

1

2

3

4

5

7

8

9

10

12

13

15

16

17

19

20

22

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 26 of 52

26

1 the motions. With respect to scheduling, on any motion of any kind I always appreciate if lawyers talk to one another and 3 propose briefing schedules because, you know, I'm assuming 4 you'll be reasonable. If it looks unreasonable to me like we'll brief this motion in three months and do an opposition 6 three months later I will say no, you're not going to do that. But most times lawyers can propose sensible schedules and, like I said, always appreciate it if you talk to one another. With respect to discovery, if there are dispositive motions, that does not necessarily stay discovery. The default in this 11 Court is it does not stay discovery. There has to be an order from the Court saying discovery is stayed. But it may make sense if there is a dispositive motion to stay discovery in whole or in part, very often what I do in cases is I try to get a feel for what should be done soon, it's not overly burdensome, and where there some reason to do it sooner, what 17 should be put off until later because maybe you save the money on it and maybe it's less important at that initial juncture. And I try to do something that is sensible that allows the case to move in a sensible way with an understanding that 21 motions are pending. So when you confer about discovery when we get there, think about that as well. Don't simply argue to me if there's a motion that it should be all or nothing. You can argue that, but also talk about whether there's some compromise approach that makes sense for the particular needs

2

5

7

8

9

10

12

13

14

15

16

18

19

20

22

23

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 27 of 52

27

1 of the particular case.

With respect to settlement, keep one eye on that 3 even if you're engaged in discovery because I'm a firm 4 believer that there are windows where cases are capable of being settled. And sometimes it needs a certain something in discovery to aid that. Now, maybe as part of a claims administration process documentation would be submitted or would be discussed in that separate process anyway, but it may be that you need discovery in the litigation to have in hand certain discovery before you can figure out the right 11 settlement for a particular case. So that might be a higher priority item because if you want to go toward an early 13 settlement there may be certain things in discovery that are particularly important to learn or understand before you are in a position to accept or reject a proposed settlement or to make a proposed settlement.

2

5

6

7

8

9

10

12

14

15

16

17

18

20

21

22

23

24

25

It seems a little bit premature, even though I wanted to get a jump on these cases, to be setting discovery 19 schedules especially in cases where there's not been an answer, certainly in cases where there's not even been service. And especially in cases where there may be a motion in lieu of an answer. But I do want everyone to confer about discovery and I want everyone to submit proposals. The more joint they are, the better. The more you have really conferred the better. When I talk about good faith

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 28 of 52

28

1 conference, I don't mean I sent an email and I didn't get a 2 response yet. When I talk about good faith conference I mean you picked up the phone, you spoke to each other, you talked 4 through issues, you tried to work out issues and only if you can't then you bring them to my attention. That goes for 6 discovery along the way. I will not even entertain a 7 discovery dispute if it doesn't appear to me that you fully conferred in good faith.

THE COURT: That's fine.

MS. KAPLAN: motion in our case. So that's what

Pet peeve, we're not there yet, pet peeve I get a 10 discovery motion, I get an opposition that says we'll do 11 certain things, I get a reply that says never mind, I have wasted my time reading it. All it tells me is you've had a 13 failure of good faith conference. You should have been able to figure that out through talking to each other rather than spending money on briefing.

I'll also note, by the way, that Ms. Kaplan, you sent me, I think you're the one who sent me three binders of courtesy copies of things, yes? Those are your binders?

MS. KAPLAN: I believe so. So Your Honor, two 20 issues. One, we have an issue about spoliation that we hope to be decided today. And two, Judge Failla called us yesterday and told us that she wanted you to decide the pseudonymous

3

5

8

9

12

14

15

16

17

18

19

21

22

23

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 29 of 52

29

1 we sent you, Your Honor.

THE COURT: That's fine. You don't have to spend your time and money putting together beautiful binders for me. I mean it's very nice, but I have three binders which I've combined into one. I mean I have three binders combined in one. One had, I don't know, maybe four, three documents and I said oops, there's one missing. So instead of sending the one that was missing you sent an entire new binder that had four 9 instead of three. And then there was another one with separate tabs and separate letters and separate cover pages and I just took it all apart and put it all in one and I 12 really didn't even need it at all. But thank you. And then in the binders I did get, with respect to the Jane Doe issue, the one thing that I actually wanted to see which was the two competing proposed orders, one of those was missing from the binder. Defendant's was not in there. So come on, if you're 17 going to give me binders and you're going to give me courtesy 18 copies, at least give me the things that I'm most going to want to see. But save your time, save your energy, save your 20 money. If it's something lengthy that has a lot of exhibits I'm not going to want to print out, yes, courtesy copies are 22 really appreciated. But you can just stick a courtesy copy in an envelope and say here's a courtesy copy. I don't need things so pretty. It's nice but it's not actually necessary especially if you ask for fees later and complaining that you

2

3

4

5

6

7

8

10

11

13

14

15

16

19

21

23

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 30 of 52

30

spent money on this sort of thing.

MS. KAPLAN: I apologize, Your Honor. THE COURT: That's okay.

MS. KAPLAN: I think from our perspective there was 5 some lack of understanding as to --

MR. MOSKOWITZ: No. Mr. Edwards and I, recognizing that uniformity makes sense and recognizing that it would be a shame to burden the Court with motion, continued motion 24 practice about this because as we've clarified in our 25 responses that Your Honor may or may not have seen

THE COURT: Don't apologize for trying to be organized and have a nice presentation. I appreciate it. I'm not trying to be critical. I'm just saying it's really not necessary. On the John Doe -- John Doe? Jane Doe, Jane Doe issues, I have no problem signing an order. The only question is what form of order. And because there are several cases with Jane Does or somebody Doe, and because many of those, if not all, most, are going be referred to me for general pretrial supervision which will include decisions like that, it would be nice to have some uniformity. So I know that Judge Castel has already issued a couple of orders.

MR. MOSKOWITZ: Your Honor, I have an update. I apologize to interrupt. I do have an update about this issue. THE COURT: You've requested that Judge Castel do something different?

1

2

3

4

10 6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 31 of 52

31

THE COURT: You're going along with the form of order that Judge Castel issued?

1

2

3

4

5

6

7

8

9

10

11

12

14

15

18

19

22

22

23

24

25

MR. MOSKOWITZ: Right. We don't object to anonymity from the general public. We just want to make sure it doesn't come at the expense of our ability to defend the actions. And Mr. Edwards and I agreed yesterday in principle to a form order that I'm going to promptly send him. I'll try to do it today. This was just late afternoon yesterday. And I respectfully submit that it makes sense to have that order entered in each action. It strikes the right balance between protecting the plaintiffs' anonymity from the general public and also making sure we are free to defend the case by using 13 that information without otherwise exposing it to people that it shouldn't go to.

THE COURT: Well, I must say I don't envy you both 16 because you're before a lot of different district judges who 17 are individuals and will handle cases differently. Also, you have a lot of different plaintiffs' lawyers who are different and may want to handle cases differently. On plaintiff's 20 side, you know, if you had been, whoever it was -- I'm not 21 sure who it was who wanted to have the cases all put before one judge, whether it was defendant's side that wanted to do that or plaintiffs' side.

MS. KAPLAN: I'm the guilty party, Your Honor. THE COURT: Okay. If you had been successful in

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 32 of 52

32

1 having the cases before one judge, you would have had to have coordinated among plaintiffs' counsel either to figure out who'd be lead counsel or at least who would take the lead on something like proposing the terms of an order like this. So I'm hoping that even though you're spread out among different 6 judges, plaintiffs' counsel can coordinate and can have one voice for negotiating something like that and have one order, one form of order that can govern in all of these cases for anyone who wants to proceed under a pseudonym. And it may be 10 because Judge Castel has already entered orders, that's fine, but I'm sure he would be fine with my modifying an order to 12 make it consistent with orders in other cases if that makes more sense. Right? So I understand defendant's view, I understand the views that have been articulated by Ms. Kaplan in her correspondence. There ought to be a happy medium that 16 protects anonymity and it still doesn't prejudice defendants. You may have gone a little overboard in the protections you 18 were seeking. They can be addressed as we go to some extent. 19 See if you can work it out. Possible to work it out? I'm hoping.

2

3

4

5

7

8

9

11

13

14

15

17

20

21

22

23

MR. MOSKOWITZ: Will do, Your Honor.

MS. KAPLAN: We will try, Your Honor.

THE COURT: Okay. You can do it. I'm quite 24 confident you can manage to come up with a proposed order for 25 anonymity that will make sense and not prejudice anyone's

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 33 of 52

33

rights.

With respect to spoliation, it's raised in one case, the Judge Failla case, which is 8673. I have a simple response to this. Counsel should know what their obligations are and those obligations are pretty clear under the law and counsel should take them seriously. If you do not preserve evidence that should be preserved that you had a reason to believe was relevant to claims or defenses in the case and that you didn't take steps to preserve, there can be negative consequences down the road. In order to be confident about what evidence it is that you better take steps to preserve, it 12 can't hurt to be asking plaintiff's counsel to summarize for you those things that you think are important if they're potentially going to make something of this. That's just for your information. But ultimately it is defendant's obligation to preserve. I don't think I should have to tell them that. And I don't plan at this point to issue an order with respect to preservation unless and until I see something where it 19 seems fairly clear that there has been, you know, a lack of preservation or there's been that conduct. The one thing that was brought out by Ms. Kaplan with respect to the need for spoliation was a story that was reported somewhere in the press where defendants have said no, you misunderstood what happened. At this point I have no reason to doubt what 25 defendants' counsel are saying about what happened, so

1

2

3

4

5

6

7

8

9

10

11

13

14

15

16

17

18

20

21

22

23

24

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 34 of 52

34

therefore, I have no reason to believe there is bad faith or bad conduct. And so therefore, I'm going to deny the request to order preservation. I'm only going to remind everyone of 4 their obligations as counsel to preserve evidence which should go without saying.

MS. KAPLAN: The only thing I would add to that, Your Honor, we're fine with that, is that Mr. Epstein, as Your Honor surely knows, has multiple residences in multiple countries across the world. And we just want to make sure that those same efforts are ongoing with respect to every -- 11 the Virgin Islands, Paris, New Mexico, New York, Florida, and we haven't gotten that assurance.

THE COURT: So counsel, you heard it here. Make sure your efforts are broad enough. And this motion is an 15 example to me of the good faith conference point. You know, it seemed to me that further conference about what had happened with respect to the incident, it seems you did have some back and forth about this. But I mean a preservation order from the Court is fairly significant. There has to be something that really spurs it. And I think on plaintiffs' 21 side hearing that the story in the press was -- that some bag had been removed from somewhere which was really not documents, I gather was some clothing

MR. MOSKOWITZ: It was clothing for the decedent to be laid to rest in, Your Honor.

1

2

3

5

6

7

8

9

10

12

13

14

16

17

18

19

20

22

23

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 35 of 52

1

2

3

4

5

6

7

8

9

10

11

12

13

14

16

17

18

20

21

25

35

THE COURT: Yes. I mean if there's a reason to doubt that, there's a reason to doubt that. You'll tell the Court. If there isn't, then we don't have something extraordinary. All right? But we do have a decedent who had a lot of property, had a lot of locations where he could be found at various points in time and the preservation obligation is going to be fairly broad, still tailored to what's relevant to this case but still fairly broad. And some of these allegations do go back in time which makes the time frame for preservation that much more challenging.

All right. Any other particular issues that anyone wants to raise? Pseudonymous, spoliation, anything else? Okay.

So what I'd like you to do is confer among the 15 plaintiffs' counsel by the way, do you know, do you anticipate more cases being filed and if so, how many more? Can you give me a clue? Do you know if there are more plaintiffs' counsel out there who are likely to be 19 representing parties?

MR. FUDALI: Arick Fudali, Your Honor, the Bloom Firm. I can tell the Court that we do anticipate filing more 22 lawsuits in this case. I can't say if there's other plaintiff 23 attorneys involved. But from our perspective, I believe at 24 least at this point there is a plan to file more lawsuits.

THE COURT: Can you give me an approximate number?

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 36 of 52

1

2

3

4

5

10 6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

23

24

36

I won't hold you to it.

MR. FUDALI: I can say less than five probably. THE COURT: Okay.

MR. FUDALI: But please don't hold me to that. THE COURT: I won't. I just wanted to get a feel.

MR. FUDALI: The other issue is, Your Honor, and perhaps you were about to address this, but I think to echo what some of my colleagues said earlier is about clarity. I think the problem is that a lot of the plaintiffs are having, plaintiffs' attorneys, we're all in the dark and we're all waiting and that's not something plaintiffs or plaintiffs' attorneys like to do. So I don't know if Your Honor is willing to --

THE COURT: In the dark and waiting for what? MR. FUDALI: I'm sorry, details of the settlement program.

THE COURT: Okay.

MR. FUDALI: And I wonder if Your Honor is willing to set some sort of deadline

THE COURT: Yes. I'm going to do that.

MR. FUDALI: that defendants could give us some 22 details, that we have something to bring back to our clients.

THE COURT: Well, I'm going to set a deadline for reporting back to me on the status of the settlement process 25 and by that deadline there will have had to have been

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 37 of 52

37

discussions because I do not want a status report that says we know nothing, we haven't been talking, we are in the dark.

MR. FUDALI: Okay. Yes.

THE COURT: Because that would be pointless for a

status report.

MR. FUDALI: I think just, yeah, we all just want more detail so our clients can make an informed decision immediately or at least in the near future so we're not just waiting, you know, with deciding.

THE COURT: Okay.

MR. FUDALI: Thank you, Your Honor.

MS. WANG: Good morning. Marion Wang. I just wanted to inform Your Honor that we filed another case this 14 morning, so we have a total of three cases.

THE COURT: I think we saw that one. We've been checking.

THE CLERK: [Inaudible].

THE COURT: We didn't see that one? We saw another

one?

THE CLERK: [Inaudible].

THE COURT: Oh, we saw one from yesterday.

MS. WANG: We filed one yesterday and we filed one

this morning.

THE COURT: Okay.

MS. WANG: So we have three total. Two are on your

1

2

3

4

5

6

7

8

9

10

11

12

13

15

16

17

18

19

20

21

22

23

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 38 of 52

38

1 appearance list, and so there’s a third one.

THE COURT: Do you have the docket number on that one, the case number on that one?

MS. WANG: Yes, we do. My colleague does.

THE COURT: It's 19-CV something.

MS. WANG: Yes. It is 10788.

THE COURT: Okay. Can anyone else give me any ideas to roughly how many more may be coming down the pike?

MR. EDWARDS: Your Honor, Brad Edwards. Potentially dozens more cases could be filed. I'm just not sure whether they're going to be filed here or potentially in the Virgin Islands or Florida. So it's tough to --

THE COURT: Through your firm?

MR. EDWARDS: Through our firm.

THE COURT: Okay. I would just urge that if you're anticipating filing more cases, you try to get on with it and not have this continuing sort of trickle of cases because especially if we start setting schedules for things, I'm trying to have some consistency on how cases are handled. If one comes in a month down the road, another one comes in two 21 months down the road, another one comes in three months down the road, you're not going to be on the same schedule.

MR. EDWARDS: Your Honor, I'll tell you that Mr. Moskowitz and I have been conferring pretty thoroughly on 25 issues including the anonymity issue. And one thing that we

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

22

23

24

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 39 of 52

39

1 have discussed, we filed four cases immediately and since that time our back and forths have led me to believe that by this point we would have something more substantive with respect to this proposal of settlement plan. And so that's what we've been waiting for. To some extent at Mr. Moskowitz's urging, and I don't really hold him

THE COURT: You mean before filing more cases? MR. EDWARDS: Right, before filing. So that's what we don't want to cloud the Court with a bunch of cases that ultimately turn out to be unnecessary because they 11 decided to put the entire estate into this plan and it's going to be a good thing. So we're kind of in this limbo not knowing enough information which piggybacks what counsel said a minute ago. I think once we get clarity, we'll be able to know are there going to be dozens of other cases that need to be filed or are we going to get somewhere with this resolution.

MS. KAPLAN: Your Honor, I would only add to that we 19 will seek to file anything promptly but as Your Honor may 20 imagine given the circumstances of this case there are women, 21 now grown women, who were victimized by Mr. Epstein who for years and years have kept it hidden living in fear, traumatized by it. And my law firm, and I'm sure this is true for the other firms, literally get a half dozen calls a day 25 from new women who are reading about this and who say oh my

2

3

4

5

6

7

8

9

10

12

13

14

15

16

17

18

22

22

23

24

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 40 of 52

40

1 God, you know, maybe

THE COURT: I see. MS. KAPLAN: And so we can't control that. I can 4 promise you that as soon as we learn of people who we think have claims we will do everything we can to file as expeditiously as possible.

THE COURT: You know, there's some tension obviously 8 between any attorney in an existing case that says we want to move this case and we want to move this case quickly toward 10 trial. And you know, some desire to have cases handled in some kind of way that's consistent and not know how many more 12 cases are coming or when they're coming in. They don't have to all be handled the same way. They don't all have to be on the same schedule. It can be sort of a basic concept and then as new cases come in the same sort of concept applies. But it may be efficient that if someone is deposed, for example, like an executor or someone else on the defendant's side that the 18 person is not deposed repeatedly. So you may be able to come up with an agreement that a deposition in one case can be used in another case. But what if it's by one counsel and you 21 didn't have your seat at the table because, you know, you're a new attorney coming in and you didn't have a chance to be there? So when you're thinking about discovery, think about things like that. It may make sense to start thinking about proceeding with certain types of document discovery, holding

2

3

5

6

7

9

11

13

14

15

16

17

19

20

22

23

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 41 of 52

41

1 off on some depositions certainly on defendants' side because 2 those may be the same or very similar in a lot of respects. Obviously, there are going to be individual stories, but some of the kinds of questions that I imagine plaintiffs are going to want to be asking are going to be the same in all the cases. So use some thought.

I'm sending you back with things to think about and things to report back to me on. I'm not setting any discovery schedules right now. That doesn't mean I want the cases to just linger and have nothing happen. But I think it's a little bit premature. I think that it would be -- I just want to pull up a calendar here because I forgot to bring my calendar. We have holidays coming. We have obviously Thanksgiving around the corner and then we're going to hit December, January time frame. So my computer doesn't want to 16 bring me a calendar year. I mean ordinarily I'd say 30 days and get back to me on what's going on with settlement but 18 that's going to run into holiday time. So I mean if you can get back to me with a report before the Christmas holidays hit, that would be great but that may be tight to really have everybody involved at the table and have some discussion going on. And my erstwhile deputy has brought me my calendar.

By the way, this person sitting at the table is Hannah Martin. She's one of my law clerks. If you want to call my chambers about something, she's a good contact person.

3

4

5

6

7

8

9

10

11

12

13

14

15

17

19

20

21

22

23

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 42 of 52

42

1 I'm sure she's thrilled to hear me say that. If you happen to be a member of the press, are any members of the press here? Look at all these members of the press. Welcome to my courtroom. If you have inquiries, please do not call Hannah.

Please call the district executive's office because if you call us, other than telling you yes it's true, we have a conference today at 10 o'clock, or something like that, we're going to steer you to the district executive's office for press inquiries. So please just do that in the first instance. And they'll contact us if they need information from us to pass along to you. But for litigants -- all right, so let me look at this calendar.

It is now November 21. Well, what do you think on both sides would be rational for reporting back with respect to status of getting some input on plaintiff's side, getting information from defendants, all that?

MR. MOSKOWITZ: So on defendants' side, two things I think are relevant to that, Your Honor, recognizing that we can't keep, you know, letting things linger because of new cases coming in as you were alluding to. Currently with 21 respect to cases for which response deadlines to complaints are already set, I believe the last of those response deadlines runs December 20 or something. So I think it would make sense for getting back to the Court to be sometime after 25 that, not too long. And obviously, there's the holidays so

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

22

23

24

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 43 of 52

43

1 maybe a couple of weeks after that would make sense. Also, in 2 terms of timing generally, this will come as no surprise I think to Your Honor, we will, we have and we will continue on my end to work as diligently as possible to promptly provide information that we agree should be provided. Things do take a little longer given that it's not just an estate but perhaps the most complex estate that I'm aware of in existence right now. So to get answers to questions that may in some cases be simple take a little longer in my situation.

THE COURT: I don't need a status report that says we've worked it all out.

MR. MOSKOWITZ: Right.

THE COURT: I need a status report that says here's the progress that has been made on both sides with attorneys on both sides confident that there is in fact progress, that there is in fact a flow of information, that they're in fact 17 sitting down and talking about things and that they're 18 learning and that they're engaged and that they have some hope. Okay? That's what I want to hear. That's your 20 mission. All right? And on defendants' side, it is very much in your interest to help facilitate this and try to make sure 22 this happens efficiently because to the extent anyone is 23 holding off on filing new cases to see if in fact there's a workable plan for settlement that will avoid the need for 25 litigation, the longer it goes where they have doubts that

3

4

5

6

7

8

9

10

11

12

13

14

15

16

19

21

24

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 44 of 52

44

1 that is in fact a workable plan, the more likely they are, especially after what I said about trying to coordinate cases, to just start filing these cases. I certainly don't mind -- I can't speak to statute of limitation issues and whether this 5 period of time would matter or not on those issues, but I don't mind if you hold off on filing cases if you think that's fast because you're optimistic about a settlement fund. Use your judgment about when you file cases. I'm not going to direct you when to file them. But you've got a lot of different balls in the air. You've got when cases are going to be filed, how many there are, if discovery should move or 12 should not move, whether they should be coordinated in some way or not, whether certain discovery should go first and other discovery later, whether there are going to be dispositive motions, how that affects whether there should be discovery. And all of this with this backdrop of talking 17 about settlement. So I'm thinking maybe we'll just do one 18 overall status report in all these separate cases before separate judges. That may be difficult. Maybe I can at least 20 get for each cluster of plaintiff's' lawyers the same letter 21 filed in each of the cases that you have. If you can all coordinate, so much the better. If you can't, you'll have to 23 put them on the docket separately. But anyway, status reports on everything, meaning discussions on settlement. Needless to say, don't put confidential details about settlement on ECF.

2

3

4

6

7

8

9

10

11

13

14

15

16

19

22

22

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 45 of 52

45

1 Settlement is the one time I'll hear from you ex parte about things if we really get there. If you really want to give me details like that, send me something ex parte solely on 4 settlement. But what I'm looking for at this point is something more general that you think can be on the public docket. So if you can, please put things on the public 7 docket. There's press interest in this case. Let's try to have as much on the public docket as we can. Okay? But a single report that talks (A) about progress of settlement talks and (B) about a plan for moving forward with the cases.

And if they have to be case specific, they're case specific. Do what you think you have to do saving money to the extent you can, breaking it out if necessary. Use judgment.

MR. GOLDFARB: Thank you, Judge. Thank you for 25 allowing us to appear from Miami. Alan Goldfarb for Jane Doe

Understand that I'd rather have three letters than 53 letters but, you know, I'll read what I have to read. Okay? And how about January 10? That takes you a couple of weeks past New Year's. Everybody okay with that?

MR. MOSKOWITZ: Works for defendants, Your Honor. THE COURT: All right. Look, if anyone has an 20 immediate need that comes up between now and then, I'm not 21 going anywhere including through the holidays. I'll be 22 around. You can contact my chambers. Put a letter on ECF. Yes.

2

3

5

6

8

9

10

11

12

13

14

15

16

17

18

19

23

24

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 46 of 52

46

1

2

3

5

6

7

8

9

10

11

12

13

15

16

17

18

19

20

21

22

23

24

17.

One suggestion I might offer, Your Honor, is for the next significant hearing I'd like to hear from whoever the 4 claims administrator would be and have some answers here in court so they can participate in explaining this process as to how they see it instead of hunting back and forth as I think might happen. So I actually was hoping you would have had a pre-Christmas status on that issue alone so we can get some indication, which is almost 30 days from now, Judge, on how that process would work here from the horse's mouth, and we all hear it at once. We're told how this would work, we understand it, and we go back and decide if we accept that or not. You know, January 10th feels a little long for me for the 14 process. You're talking about 90 days. And I don't mind coming back up here to your wonderful city again Christmastime.

THE COURT: I didn't know you were coming but you're welcome.

MR. GOLDFARB: Thank you.

THE COURT: Basically what we did is we put a notice on the docket on the first group of cases that we were having a conference and then we started reaching out to counsel in later filed cases who seemed to already know that there was a conference. So we just figured people would show up. But we 25 didn't reach out to anyone in Florida.

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 47 of 52

47

January 10, I'm basically thinking kicking it more 2 than 30 days because of the holidays. That's why January 10. But what I'm thinking ought to happen between now and then, I give it to you for serious consideration, is you folks ought to schedule a meeting without me. You ought to schedule a meeting with the claims administrators and with counsel in these cases on both sides. And you ought to sit around a table and you ought to talk about all the questions and get as many answers as you can get and try to gain some confidence that you are all participating and your views are being taken seriously and valued. And that's what I think you ought to do 12 because in settlement discussions that's what happens. People talk outside of the court about things and try to advance the 14 ball. And you do have a lot of people. And if you talk one on one, then you have another one on one with a different lawyer and the message is heard differently or different questions are asked and answered, you know, you're going to have some confusion reigning. So I would strongly recommend we not use the courtroom for that meeting at this stage but 20 that you see if you can set one up and literally bring people to the table as a settlement discussion. And then when you report back, you'll have something to report back on. Yes?

1

3

4

5

6

7

8

9

10

11

13

15

16

17

18

19

21

22

23

24

MR. BOIES: Your Honor, David Boies. I agree completely with the Court we need to meet among ourselves. 25 You got good counsel on both sides here. I think that we can

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 48 of 52

1

4

6

7

8

9

10

12

14

15

16

17

18

19

20

21

22

24

make progress. However, my consistent experience over, as Ms. 2 Kaplan was saying, over a considerable number of years is that 3 counsel, even with a best faith world, tend to work harder when they've got a appearance before the Court in order to 5 respond to where they are. And I think that if - I would I think echo what Mr. Goldfarb said which is that if the Court were to set a conference on December 20th just to sort of report on where we were in terms of the settlement process and the administrators, I think that would spur us over the next 30 days to maybe work harder and more effectively than if we 11 didn't have that date.

THE COURT: Are there any attorneys here in the 13 courtroom who do not have your personal calendars with you because they were confiscated at the door? Do you all have your calendars?

MALE SPEAKER: Yes, Your Honor.

FEMALE SPEAKER: Sure.

THE COURT: All right. I'm not scheduling any conference December 20. But what I suggest is when I step 23 down from the bench I suggest that the attorneys stick around for a minute, compare notes on their availability, see if you 25 can at least tentatively come up with a couple of dates that

MR. MOSKOWITZ: And Your Honor, I mean going back to exactly what you said about just being practical with the holidays, I'm out of state that week, December 20th.

48

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 49 of 52

49

1 might work for a meeting among you. You're going to have to get in touch with the administrators to see if they're available which is why more than one date would be useful.

See if you can get something on the calendar that's a firm date to start having real meetings to be able to discuss things with everybody who wants to be involved involved, and everyone could hear everyone else's questions. I just don't think I should be using the courtroom for that at this time.

MS. KAPLAN: Thank you, Your Honor. We will. I think what you're hearing, if I could speak from the plaintiffs' side, is we've been asking for exactly that meeting now for many weeks, so

THE COURT: All right. Well, we don't want consternation. We don't want anybody feeling frustrated. We 18 want everybody feeling encouraged that there is responsiveness and that this is going to move forward on a track that everybody's going to be optimistic about. That's the goal. All right? You are all good counsel and you all understand the need to work together. And settlement doesn't happen 23 unless people work together. So let's start making that 24 happen. Try to schedule, you know -- I mean look, you can 25 provide information, you can provide some information in

THE COURT: Okay. So let's --

MS. KAPLAN: that's why you're hearing the

consternation on our side.

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

19

20

21

22

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 50 of 52

50

1 writing perhaps. Whatever. You can start doing that pretty promptly. But try to schedule a meeting where you start 3 talking about this so that by January 10 it's not just you met on January 9. You know, you had a meeting, you started 5 talking, you had some further dialog, you have some progress to report. That's the goal to have progress to report. And I fully agree that having the Court keep tabs makes things happen that doesn't otherwise happen which is why even at this ridiculously early stage for many of these cases you are all here today because the goal is to take stock of this and to try to oversee this and to try to make these cases move in an appropriate way instead of just having lots of separate 13 squabbles going on, lots of separate issues floating around, different sorts of letters expressing different sorts of frustration. Right? We're going to try to have this as frustration free as possible. These are serious claims. 17 Defense counsel recognizes that. There are a lot of them. There are more to come. Let's see if we can get them on a settlement track that everybody is comfortable with. And 20 January 10, one letter, 30 letters, whatever it is, try to 21 report back on settlement, on motion practice if there's going to be motion practice, on discovery proposals if you think discovery is in order and you know, with lots of thought. And to the extent you differ, I'll see how you differ. To the 25 extent you can be of one mind as to how things should proceed,

2

4

6

7

8

9

10

11

12

14

15

16

18

19

22

23

24

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 51 of 52

51

1 great. All right?

MS. KAPLAN: Thank you, Your Honor.

MR. FUDALI: Thank you, Your Honor.

THE COURT: It's a goal.

MR. MOSKOWITZ: Thank you, Your Honor.

THE COURT: Go forth. Go forth and do.

* * * * * *

2

3

4

5

10 6

7

8

6

10

11

12

13

14

15

16

17

18

19

20

21

22

2 2 2 2 1 23

24

25

Case 1:19-cv-07625-AJN-DCF

Document 33

Filed 11/26/19

Page 52 of 52

52

I certify that the foregoing is a court transcript from an electronic sound recording of the proceedings in the above- entitled matter.

Mary Greco
Mary Greco

Dated: November 25, 2019

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23
2 2 2 1

24

25
documents/doj-31aa053c5b1881a4.pdf
{}