1
1 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
2
3 ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ X
4 ISAACSON, et al., :
5 CV 98‑6383
Plaintiffs, :
6
7 ‑against‑ :
United States Courthouse
8 Brooklyn, New York
DOW CHEMICAL, et al., :
9 August 16, 2004
Defendants. : 11:00 o'clock a.m.
10
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ X
11
VIETNAM ASSOCIATION FOR :
12 VICTIMS OF AGENT ORANGE, :
13 CV 04‑400
Plaintiffs, :
14
15 ‑against‑ :
16
DOW CHEMICAL, et al., :
17
Defendants. :
18
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ X
19
20
21 TRANSCRIPT OF MOTIONS
22 BEFORE THE HONORABLE JOAN M. AZRACK
23 UNITED STATES MAGISTRATE JUDGE
24
25
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1 APPEARANCES:
2
For the Plaintiffs: MOORE & GOODMAN, LLP
3 740 Broadway
New York, N.Y. 10003
4
BY: JONATHAN C. MOORE, ESQ.
5
6
CONSTANTINE P. KOKKORIS, ESQ.
7 225 Broadway
New York, N.Y. 10007
8
9
MARK CUKER, ESQ.
10
11
JOE GUERRIERO, ESQ.
12
13
14
For the Defendants: SEYFARTH SHAW
15 Attorneys for Monsanto
1270 Avenue of the Americas
16 New York, N.Y. 10020
17 BY: JOHN C. SABETTA, ESQ.
ANDREW T. HAHN, SR., ESQ.
18
19
LATHAM & WATKINS
20 Attorneys for Monsanto
One Newark Center
21 Newark, New Jersey 07101
22 BY: JAMES E. TYRELL, JR., ESQ.
23
24 MICHAEL GOLDBERGER
Assistant U. S. Attorney
25 Brooklyn, New York
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1 Appearances: (Continued)
2
3
4 RIVKIN RADLER
Attorneys for Dow Chemical
5 EAB Plaza
Uniondale, New York 11556
6
BY: STEVEN BROCK, ESQ.
7 JAMES V. AIOSA, ESQ.
8
9
10 ORRICK HERRINGTON
Attorneys for Dow Chemical
11
BY: LAURIE STRAUCH WEISS, ESQ.
12
13
14
CADWALADER, WICKERSHAM & TAFT
15 Attorneys for Occidental
Chemical as successor to
16 Diamond Shamrock
100 Maiden Lane
17 New York, N.Y. 10038
18 BY: MICHAEL M. GORDON, ESQ.
19
20
21 DeBEVOISE & PLIMPTON, LLP
Attorneys for Hooker Entities
22 919 Third Avenue
New York, N.Y. 10022
23
BY: ANN E. COHEN, ESQ.
24
25
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1 Appearances: (Continued)
2
3
McDERMOTT WILL & EMERY
4 Attorneys for Riverdale Chemical
50 Rockefeller Plaza
5 New York, N.Y. 10020
6 BY: CHRYSSA V. VALLETTA, ESQ.
7
8
CLARK, GAGLIARDI & MILLER
9 Inns of Court
Attorneys for Agriculture &
10 Nutrition Company
99 Court Street
11 White Plains, New York 10601
12 BY: MARK A. SIESEL, ESQ.
13
14
KELLEY DRYE & WARREN
15 Attorneys for Hercules Inc.
101 Park Avenue
16 New York, N.Y. 10178
17 BY: WILLIAM C. HECK, ESQ.
18
19
20
Court Reporter: Gene Rudolph
21 225 Cadman Plaza East
Brooklyn, New York
22 (718) 260‑2538
23
24
Proceedings recorded by mechanical stenography, transcript
25 produced by computer‑aided transcription.
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1 THE COURT: Good morning.
2 THE CLERK: Civil cause for discovery conference in
3 Re Agent Orange Product Liability Litigation, et al, MDL 381.
4 Counsel, please state your appearances for the
5 record.
6 THE COURT: I think we have everyone.
7 All right. Good morning, everyone.
8 Let me first hear from plaintiff's counsel in
9 whatever order you want to proceed. You can use the podium,
10 if you wish.
11 MR. MOORE: The table?
12 THE COURT: Wherever you want.
13 Someone is participating by phone.
14 Who is on the telephone? Mr. Cuker? Mr. Cuker?
15 THE LAW CLERK: One moment, Your Honor.
16 (Pause.)
17 THE COURT: Who does Mr. Cuker represent?
18 THE LAW CLERK: Isaacson and Stevenson.
19 (Pause.)
20 THE COURT: Mr. Cuker?
21 (Pause.)
22 Mr. Cuker?
23 MR. CUKER: Hi, judge.
24 THE COURT: Mr. Cuker?
25 MR. CUKER: Yes, Judge.
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1 THE COURT: All right. We are going to see if this
2 works.
3 All right. You need to listen carefully and let me
4 know if you can't hear.
5 I am going to have to ask you ‑‑ would you move
6 the mike closer to the end of the table. Is it on Polycon or
7 on the mike?
8 THE LAW CLERK: I think on the telephone.
9 THE COURT: Mr. Cuker, hold on.
10 Mr. Cuker?
11 MR. CUKER: Yes, Your Honor.
12 THE COURT: Thank you.
13 We have appearances from everyone. I first asked
14 to hear from the plaintiffs. I believe Mr. Moore was about
15 to be heard.
16 THE LAW CLERK: Mr. Guerriero should be there also.
17 THE COURT: Mr. Guerriero, are you on?
18 MR. GUERRIERO: I am here.
19 THE COURT: Mr. Moore.
20 MR. MOORE: Good morning, Judge.
21 Jonathan Moore on behalf of the plaintiffs and
22 Vietnam Association for Victims of Agent Orange against Dow
23 Chemical, et al.
24 I think there are two matters before this court
25 today. One is to set a briefing schedule for the motions
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1 that Judge Weinstein had anticipated we had requested be
2 filed sometime in September originally or in August.
3 The other thing has to do with ‑‑ there is a
4 discovery demand requested by the plaintiffs, and let me just
5 give you a little background.
6 Obviously, you are familiar with the ‑‑ with all
7 this litigation, but we have made ‑‑ after judge ‑‑ after
8 we were in front of Your Honor, Judge Weinstein, back in
9 March, and mindful of what he had told us about, how
10 discovery was going to be conducted, we of course disagreed
11 with that. Our position is that ‑‑ I think it is important
12 I state for the record, that this is a different case. It
13 raises different issues than had been raised before. Our
14 plaintiffs ‑‑
15 THE COURT: You brought that to his attention then.
16 I have reread the transcript.
17 MR. MOORE: I just need to ‑‑ to state for the
18 record what our position is so that you will understand what
19 our request is now. I would beg the Court's indulgence for
20 one second on that.
21 This is a different case, raising different claims
22 and different issues. These plaintiffs in the Vietnam
23 Association case have not been before the Court prior to
24 January of 2004. Although there have been years, if not
25 decades, of litigation in these proceedings, our plaintiffs
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1 have not participated in and it is our contention that our
2 plaintiffs have the same rights as, or should have the same
3 rates as the US veterans in litigating this case.
4 THE COURT: So?
5 MR. MOORE: So mindful of what Judge Weinstein
6 said, we have been very busy reviewing files. We arranged,
7 as Your Honor knows, there was a great deal of difficulty
8 arranging for the transfer of these files from the archives
9 up to Central Islip that we had to seek your intervention on.
10 But we have reviewed some of those. We have reviewed many of
11 them, including all the depositions and some of the exhibits
12 attached to the depositions.
13 We are ‑‑ we had been very busy. However, we ‑‑
14 based upon that review, we felt that it was necessary to make
15 some discovery demands, as Judge Weinstein had anticipated we
16 might do in his decision.
17 So we sought information in our discovery demand
18 which was filed on July 12 or, I'm sorry, June 11, in three
19 areas.
20 One is, we wanted information in the possession of
21 the defendants on the new claims, the new issues that the
22 plaintiff have raised in this case.
23 We are ‑‑ this case, from our perspective, raises
24 claims of international law and laws of ‑‑ rules of the law
25 of war that have not been litigated previously in this
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1 litigation. So we sought information with respect to any
2 documents in the possession of the defendants which dealt
3 with those issues, that considered those issues, that ‑‑
4 along the way whether they had ‑‑ had given the ‑‑ given
5 the great deal of international and national attention to
6 this, the use of these weapons back in the sixties, it seemed
7 reasonable that they would have considered the international
8 consequences of what they did.
9 If they didn't, so be it, but we sought information
10 with respect to that.
11 The response was, whatever was there ‑‑ whatever
12 might have been done in that is contained in the MDL 381
13 file. We have no reason to believe, based upon our review of
14 the materials we have seen so far that that is the case. It
15 is not logical because those claims were not before the Court
16 and so that's ‑‑ the first example of the kind of
17 information we sought.
18 We also sought two additional things, Your Honor.
19 We sought to ‑‑ Your Honor is more familiar with this case
20 than I am. I apologize if I am repeating stuff.
21 THE COURT: I hope not. At this point.
22 MR. MOORE: You certainly are more familiar with
23 the procedure that has been involved all these years.
24 The ‑‑
25 THE COURT: Just understand, I am a new magistrate
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1 to this case. This was Magistrate Judge Scheindlin and then
2 it was Magistrate Judge Chrein, and then ‑‑
3 MR. MOORE: I take that back. We are more
4 familiar.
5 THE COURT: Okay. I hope so.
6 MR. MOORE: The ‑‑
7 THE COURT: I am not going to give you a lot of
8 time to get more familiar.
9 MR. MOORE: There is ‑‑ there is a universe of
10 documents numbering over a million documents in repositories
11 of the US government. The Court gave us ‑‑
12 THE COURT: Are you talking about the MDL
13 documents?
14 MR. MOORE: The MDL 381 documents.
15 THE COURT: All right.
16 MR. MOORE: What we sought from the defendants,
17 given the constriction that we had on our right to discovery
18 in this case, was some indexes ‑‑
19 THE COURT: Nobody constrained you with respect to
20 the MDL documents.
21 MR. MOORE: If you allow me to finish my point,
22 Your Honor?
23 THE COURT: Okay.
24 MR. MOORE: What we sought ‑‑ certainly we could
25 go there and we have reviewed those files. In order to
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1 review over a million files, it takes a considerable amount
2 of time. There has been difficulty getting the files ‑‑
3 some of the files that were there sent up to Central Islip.
4 We are still having difficulty getting additional boxes sent
5 up from the archives to Central Islip to supplement the ones
6 that have already been produced.
7 We asked ‑‑
8 THE COURT: Wait a minute.
9 I want to know if that happens. I actually have
10 some control over that. I in fact talked to the clerk about
11 making sure the documents that got to Central Islip stayed
12 there. I don't want to hear that there has been any problem
13 with delivering of documents. I could have assisted you in
14 that regard.
15 I think as a result of you writing to the Court
16 about it, I called the Clerk of the Court and he indicated
17 that all documents would remain in Central Islip.
18 MR. MOORE: Yes. We requested additional
19 documents. As far as I understand, those have not been
20 delivered either.
21 MR. GOLDBERGER: Your Honor, may I be heard on that
22 briefly?
23 THE COURT: Yes.
24 MR. GOLDBERGER: I am appearing here for
25 Ms. Mahoney who is usually on this case.
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1 My understanding from Ms. Mahoney is there were
2 eighty‑six boxes of documents that were to be delivered to
3 Central Islip. Eighty‑four were delivered almost instantly,
4 in March. Two more boxes followed shortly thereafter. That
5 Mr. Heinemann received a request a few weeks ago for
6 additional documents. He was ‑‑ the attorney who called ‑‑
7 Mr. Heinemann did not recall who that attorney was ‑‑ was
8 instructed to call Ms. Mahoney and indicate to Ms. Mahoney
9 what additional files would be required as we had before.
10 Our office would draw up an order and the documents would be
11 provided.
12 Ms. Mahoney indicated to me before she went on
13 vacation, which was last week, no request had been made to
14 her for additional documents.
15 Once we get that request, we will draft an order
16 and we will do the necessary paperwork.
17 THE COURT: Thank you.
18 MR. MOORE: We have been acting with ‑‑
19 THE COURT: There you go. Somebody has to call
20 Ms. Mahoney.
21 MR. MOORE: Fine.
22 THE COURT: Next.
23 MR. MOORE: All I am saying, Your Honor, is that ‑‑
24 in order to review that mass of material, required in our
25 judgment, some assistance from the defendants which we
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1 thought was a minimal burden on them.
2 Primarily, it was that they produce for us the ‑‑
3 the indexes, their Bates stamp indexes which we believe that
4 they maintained, identifying by index the document.
5 THE COURT: I thought they produced that to you.
6 MR. MOORE: They produced a rather general and
7 generally in many respects not usable, not very usable index
8 that we have attempted to use, but it is not what we need.
9 THE COURT: Let me just cut you short there.
10 I am prepared to hear you on all substantive
11 matters. But I am not going to require the defendants to
12 prepare an index for you. Anything they already have
13 prepared, you can have. I thought you did have.
14 If it is not to your liking, or if it is not the
15 type you would like prepared, that's too bad. But I am not
16 going to have them prepare an index for you.
17 MR. MOORE: We weren't asking them ‑‑
18 THE COURT: At this stage.
19 MR. MOORE: We weren't asking them for them to
20 prepare an index. It was my assumption, and it
21 is ‑‑ it is an assumption only based upon what I assumed is
22 the practice of these ‑‑ several of these firms, that they
23 have ‑‑ that they created an index when they generated the
24 documents. Certainly when they sent them to the national
25 archives.
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1 We have never gotten a straight answer as to
2 whether there is actually a Bates stamp index for all the
3 documents that were sent by these defendants to the national
4 archives.
5 THE COURT: If there is a centralized or an index
6 that is ‑‑ indexes the documents in some centralized way, in
7 some kind of cumulative way that covers everything, you can
8 have it.
9 But it is my understanding ‑‑ and any one of the
10 defense counsel who wants to speak to it, please do ‑‑ it is
11 my understanding that everything that has been submitted in
12 this, the correspondence to me, that that does not exist and
13 that you have, or they are prepared to make available to you
14 any index that exists.
15 Mr. Sabetta?
16 MR. SABETTA: Yes, Your Honor. We did produce
17 those materials. At the end of MDL litigation, the class
18 action litigation, Judge Weinstein directed that the parties
19 file with the Court all of the documents they had produced in
20 the litigation and their trial exhibits as enumerated in
21 their pretrial. Defense counsel did do that.
22 In the case of Monsanto and I think most of the
23 other defendants, we filed an index which included the
24 plaintiff's interrogatories which were the ‑‑ which was the
25 vehicle by which documents were produced and we identified
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1 pursuant to each of those questions and subject areas all of
2 the documents that we had that were responsive to each of
3 those categories by Bates number. We have produced that to
4 plaintiff's counsel. Each of the other defendants has
5 likewise done the same, I believe.
6 THE COURT: That's what my understanding was of
7 that existed. That's what I thought you were entitled to.
8 Beyond that, it would require them to go and prepare
9 something for you.
10 MR. MOORE: I don't think that answers the question
11 whether there was actually a general Bates stamp index
12 produced ‑‑ generated by these defendants in the course of
13 discovery in the MDL 381 litigation.
14 THE COURT: I think the answer is no.
15 MR. MOORE: I don't know what the answer is, Your
16 Honor.
17 MR. SABETTA: We produced what we have, Your Honor.
18 THE COURT: We have been through this. We had
19 discussions about this the last time you were here. To the
20 extent that any defendant prepared an index when these
21 documents were archived or whenever they were sort of
22 memorialized or organized, you are entitled to that index.
23 My understanding from our prior conference was that
24 there was not any one index that was a global index.
25 MR. MOORE: Well, I ‑‑ I don't think the ‑‑
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1 THE COURT: Where is Mr. Brock?
2 MR. BROCK: Right here, Your Honor.
3 THE COURT: Is there a centralized index?
4 MR. BROCK: There is some unclarity in the words
5 here. What we produced, and I think as was ordered for the
6 Court, the Court was setting aside documents for historical
7 record. The Court wanted those documents to be accessible
8 and each party was ordered to produce certain documents and
9 provide an index with it. That has been done. That has been
10 provided to them.
11 THE COURT: Right.
12 MR. BROCK: There would have been incidental lists
13 prepared in the course of pretrial proceedings which are in
14 the docket of the Court. There is the reference to the
15 pretrial order. There are all these reference materials that
16 are in the MDL 381 docket. We do not have a list of
17 everything.
18 THE COURT: I've already ruled on this. Any index
19 that exists is to be produced to the plaintiffs. That's it.
20 MR. BROCK: Your Honor, for point of clarification,
21 one of the things that they are not mentioning at this point,
22 but that they did mention in the past ‑‑
23 THE COURT: You mean, Mr. Moore?
24 MR. BROCK: Yes, the plaintiffs, was a request for
25 a computer database. We got a protective order back in the
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1 early stages of the litigation that are internal computer
2 database which included the classifications of documents by
3 subject matter, attorney‑client comments on the documents,
4 those sorts of information were to be protected.
5 Just so there is not any unclarity, we are on the
6 record that we did have such a database and we are not
7 obviously producing that because of the existing protective
8 order.
9 But listings such as were made in the course of
10 pretrial preparations that were not subject to any work
11 product objection, they have either because we have given it
12 to them or because it is in the MDL 381 record already.
13 THE COURT: All right.
14 MR. MOORE: Judge, with all due ‑‑
15 THE COURT: My concern about your requests suggest
16 to me you haven't moved far off the dime here.
17 MR. MOORE: That's wrong if you are assuming that.
18 We moved very far off the dime.
19 You have to understand we have not been dealing
20 with this case for several years. We have ‑‑ this case was
21 filed in January of 2004. You can't penalize these
22 plaintiffs because there has been all these many years of
23 litigation involving the US veterans. It is not fair.
24 THE COURT: I am not.
25 MR. MOORE: We are trying to do the best we can
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1 under the constraints of the Court. All we asked, and I
2 still don't have a clear ‑‑ I don't think that's a clear
3 answer as to whether there is a Bates stamp index from all
4 these defendants of all the documents that they have produced
5 in discovery. If there is, if there isn't, they should get
6 up and say there isn't in court today on the record.
7 THE COURT: They all said there isn't. They all
8 have their ‑‑ they have individual ‑‑ they have some kind
9 of index that they all produced. There isn't one. If there
10 is one, it must be produced. I couldn't be clearer. If
11 there is one centralized index that has a Bates stamp for
12 everything, it has to be produced.
13 MR. MOORE: What was ‑‑
14 THE COURT: What more can I say?
15 We are moving on.
16 MR. MOORE: Just for the record, Judge, what was
17 produced was what they produced in response to the judge's
18 order, that the documents be sent to the national archives.
19 There was some very general index of that. What was ‑‑ has
20 not been produced is their own internal, and whether it's on
21 CD Rom or whatever, whether there is a protective order that
22 issued with respect to it previously, is really not the
23 point. The point is, is that if there is such an index, that
24 was maintained in the course of this litigation, not for
25 purposes of sending documents to the archives, but in the
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1 course of the litigation, with respect to what documents were
2 generated and produced in discovery, we should be able to see
3 that. We are placed under an extraordinary burden.
4 THE COURT: Mr. Sabetta said you have his. You
5 have theirs.
6 MR. SABETTA: Yes. It is incorrect to characterize
7 what we produced at the end of the litigation as a general
8 statement.
9 What I described earlier is what we did. Namely,
10 we supplied them with the plaintiff's interrogatories ‑‑
11 MR. CUKER: I am having trouble hearing.
12 MR. SABETTA: John Sabetta for the defendants.
13 I am saying Mr. Moore's characterization is not
14 accurate when he says that what the defendants supplied was
15 general index. What we supplied was a detailed index in the
16 form of answers to interrogatories from the original class
17 action counsel in our case on six or eight separate
18 occasions. We made about eight separate productions over
19 time.
20 In each instance, we listed by Bates number all of
21 our documents that were responsive to the interrogatories to
22 which we had not objected, and we believe that we have
23 produced as a consequence all of the relevant materials that
24 deal with the issues counsel is raising.
25 I can't be certain because I haven't gone back to
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1 the one hundred thousand pages of documents that Monsanto
2 produced that that is absolutely the case, but we had no
3 reason to hold back documents when the plaintiffs called for
4 documents of the defendants that related to the use of Agent
5 Orange, the effects of Agent Orange or indeed more broadly
6 for phenoxi herbicides. We produced those materials.
7 Although the class action plaintiffs were not necessarily
8 asserting claims of international law violations or war
9 crimes claims, the facts relating to the plaintiff's current
10 claims are essentially the same. They didn't change their
11 nature because they are now being wrapped in a different
12 legal theory of liability.
13 Those documents are in the record. In fact, not
14 only are they in our documents, but there has been an
15 enormous production of publicly available information in the
16 form of Congressional hearings, published books and other
17 source material that lay out the arguments and the documents
18 and the assertions that circumscribe or constitute these
19 claims of international law violations.
20 After all, this was a heavily debated issue at the
21 time. This is not something that is new in the year 2004.
22 This is ancient history in some ways.
23 THE COURT: All right. Just to wrap this up, and I
24 understand the record, I think you have made it, any index
25 that any defendant in this case has prepared must be
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1 produced. If there is a centralized index that all of the
2 defendants have prepared, that contains any kind of
3 organization, it has to be produced, other than what
4 Mr. Brock referred to that is subject to a protective order.
5 It is my understanding for the record that each
6 defendant has produced such an index or such an
7 organizational chart, or whatever they have that provides the
8 road map to their documents, sometime ago. Because we
9 discussed this issue at the prior discovery conference.
10 MR. MOORE: Can we have a date by which the
11 defendants would have to produce any indexes that would fall
12 under your order?
13 THE COURT: I don't have a calendar. Today is the
14 16th.
15 MR. CUKER: I couldn't hear that.
16 THE COURT: Today is the 16th. He wants a date by
17 which ‑‑ it is my impression that everybody has already
18 produced them.
19 Yes, Mr. Brock?
20 MR. BROCK: If I may be heard briefly. For a point
21 of clarification, we had not produced listings which are
22 currently in the MDL 381 record as publicly available
23 documents, thinking that it was ‑‑
24 THE COURT: It was there.
25 MR. BROCK: It is there. I wanted to clarify, we
GR OCR CM CSR CRR
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1 weren't being asked to produce lists that were public.
2 THE COURT: No. My assumption is that it's
3 already ‑‑ some of them have already been produced. To the
4 extent that any defendant hasn't produced an index that's
5 already been prepared, they need to be produced by the 23rd,
6 which is next Monday.
7 What is next?
8 MR. MOORE: Judge, we have sought in ‑‑ I just
9 don't think this was part of the original discovery. We had
10 sort, and it is nothing that we have seen in our review, we
11 have reviewed thousands of pages of documents and depositions
12 and exhibits, but we requested any information in possession
13 of the defendants which alluded to or mentions international
14 treaties, conventions, norms or customary international law
15 including the following. Internal documents from within the
16 defendant, documents from other chemical manufacturers,
17 documents from other persons, groups, governmental and/or
18 international agencies.
19 Those claims ‑‑ those international law claims
20 were not part of the MDL 381 litigation. So it is not ‑‑
21 and we have not seen in our review of the documents any
22 documents that addressed those issues.
23 So we want the defendants to produce any documents
24 that fall within that discovery demand, because it is ‑‑
25 those are germane to our claims and to their knowledge of
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1 these international law norms. They go to the heart of these
2 motions that are going to be filed, presumably sometime in
3 this fall, trying to dismiss these international law claims.
4 THE COURT: Who wants to be heard on that?
5 MR. SABETTA: Your Honor, briefly.
6 THE COURT: Come up, Mr. Sabetta, so Mr. Cuker can
7 hear.
8 MR. SABETTA: Briefly, I will summarize what I said
9 earlier, which is that first of all, it is not correct to say
10 the MDL litigation did not involve claims of international
11 law violations. There were claims by the veterans that the
12 government had violated international law. That was
13 litigated. There are opinions concerning that. We have
14 cited those in our letter. There was some discovery of these
15 issues and various government personnel were deposed.
16 Documents were produced. These issues were ventilated.
17 The defendants did not withhold documents on the
18 notion that they concerned alleged international law
19 violations by reason of the use of Agent Orange or related
20 herbicides in Vietnam.
21 Even though the plaintiffs ‑‑ the class action
22 plaintiffs may not specifically have asked the defendants for
23 those documents, they did ask for a broad variety of other
24 documents involving the use and effects of herbicides and the
25 kinds of information that the plaintiffs are now talking
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1 about are contained in the documents that we did produce.
2 Now, we didn't go through our corporate libraries
3 and search for all information about international law
4 violations in the abstract. If the documents we had, the
5 Agent Orange related documents contained anything that was
6 responsive, it almost certainly would have been produced in
7 response to the multiple discovery requests of the class
8 action plaintiffs.
9 I cannot swear, and I wouldn't want to be held to
10 the assertion that if I went back and tried to find wherever
11 the original cache of Monsanto documents might now be, I
12 couldn't find a single such document. I don't know.
13 I suspect, like everything else, our original
14 searches were not without some error. But we certainly made
15 an effort to collect every single document that was relevant
16 to the controversy and we would not have left to one side
17 documents relating to claimed international law violations
18 just because that phrase didn't appear in the cause of action
19 of the class action plaintiffs.
20 It is my best judgment, I think the other
21 defendants share this view, that we did produce those
22 documents. There is extensive material already in the MDL
23 record. Probably from the defendants. But also certainly in
24 the form of deposition testimony and deposition exhibits.
25 There are opinions on the subject that the transferee court
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1 issued relating to the servicemen's claims against the
2 government, alleging international law violations. So the
3 record is there.
4 What is missing I think is any reliable
5 representation by counsel that they have really mined that
6 record and can say with high confidence that they haven't
7 been able to find the records that they really need.
8 This, as I said a moment ago, this is a controversy
9 that has been public for thirty years now. This is not a
10 recently arrived idea or claim. These claims were made
11 thirty years ago. They have been ventilated already.
12 (Continued on next page.)
13
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18
19
20
21
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23
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1 THE COURT: Any other defense counsel want
2 to be heard on this issue? What can you say about the
3 state of the record that you have reviewed that makes you so
4 certain that there are these deficiencies?
5 MR. MOORE: Judge, we've reviewed at least ‑‑ I
6 think we actually have reviewed now all the boxes of
7 documents, depositions and deposition exhibits that were
8 transferred initially from the archives to Central Islip. I
9 can represent that in those boxes, I haven't personally seen
10 all of them, but it's been reported to me there's no
11 information that would be responsive to our demand, this
12 document demand with respect to documents relating to the
13 potential international law violations.
14 THE COURT: Nothing in a deposition transcript
15 where someone was questioned about these issues?
16 MR. MOORE: This was not the issue with the
17 chemical companies. We're not suing the U.S. company but the
18 chemicals companies.
19 THE COURT: I know.
20 MR. MOORE: The question is, is there any
21 information in their files that deals with contemporaneously
22 or even after going up into the present because it may look
23 back and it could have occurred after discovery closed in the
24 MDL 381 litigation about their understanding, about the
25 application, about anything having to do with whether
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1 international law norms or war crimes laws apply to what was
2 alleged happening in Vietnam with the use of these chemical
3 weapons. There's nothing that we've seen yet that deals with
4 that. That's why we made that request.
5 I've never had to litigate a case of this
6 magnitude, never had a case of this magnitude, of any
7 magnitude where you're basically said from the beginning
8 you're not going to get discovery, first look to what
9 everybody else has done.
10 THE COURT: This is a unique situation. You
11 haven't had a case like this. This is a unique situation,
12 the way this case presents itself today given the history.
13 MR. MOORE: I understand.
14 THE COURT: You're really asking for documents that
15 may have been produced post‑conclusion of the MDL.
16 MR. MOORE: Pre and post.
17 THE COURT: Pre would be in the documents.
18 MR. MOORE: Not necessarily. Those claims were not
19 before the court in the MDL 381 litigation.
20 THE COURT: You heard what Mr. Sabetta said, they
21 wouldn't carve out ‑‑
22 MR. MOORE: He said almost certainly they might
23 have been produced. To me that's not sufficient clarity with
24 respect to an important piece of litigation in federal court
25 where we're seeking documents that were obviously we're
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28
1 entitled to under normal circumstances. He said it probably
2 was produced by the government. That's not the chemical
3 companies; that the government, because the veterans sued the
4 government on some international law claims, the government
5 might have produced something like that. That's not the
6 chemical companies.
7 MR. SABETTA: This is a unique setting in one
8 sense, but in another it's not. Insofar as this is a part
9 of, a continuing part of an MDL proceeding that has now
10 stretched over 25 years and one of the central purposes of
11 the MDL process is to avoid repetitive and duplicative
12 discovery.
13 What we're saying, we think we have made the
14 disclosures that the plaintiffs are seeking. They're not in
15 a position to say they've made an exhaustive review, know
16 that's not the case.
17 THE COURT: That's what he's saying.
18 MR. SABETTA: I didn't hear that from counsel.
19 What I can say is this, Judge Weinstein, the
20 Second Circuit, the Fifth Circuit and others have all
21 announced on the record in formal opinions that the evidence,
22 even as late and as the 90's did not support the claims of
23 medical causation of injury to the plaintiffs. If that's the
24 case, and we believe it is still true today, there's very
25 little likelihood the defendants were concerned about
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29
1 international law violations, generated a wealth of
2 information on that subject.
3 The government was the source of a lot of
4 criticism. They did look into it. There are records
5 concerning that, but there's not really a great deal that we
6 were involved in and illuminating at great length. Whatever
7 we did have, we turned over.
8 It's their obligation now as kind of the people who
9 inherit the MDL record to go through it.
10 THE COURT: He says he has and that there's a
11 conspicuous absence of this; isn't that what you're saying,
12 Mr. Moore?
13 MR. MOORE: Based on what we've reviewed so far.
14 THE COURT: Is that a complete review?
15 MR. MOORE: We haven't reviewed all 1,800,000,
16 however many documents there are. Based on what we have
17 seen, there are no such documents.
18 MR. BROCK: If I may ask counsel to clarify, my
19 understanding is that the only documents that plaintiffs had
20 requested from the archives are depositions and presumably
21 the exhibits with them. They are asking at this point for
22 what documents within defendants' document production might
23 have something to do with the international law issues.
24 I have not heard representation that they got those
25 documents out of the archives, even looked at them.
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1 THE COURT: Have you?
2 MR. MOORE: The documents that were used in the
3 exhibits that were exhibits to the deposition, which
4 presumably are the critical documents that were litigated in
5 the case, those are the ones used in the exhibits, do not
6 include anything about that.
7 THE COURT: That's a partial review then. That's
8 not a full review.
9 MR. MOORE: I didn't say we reviewed all one
10 million plus documents. We have reviewed documents other
11 than the documents at Central Islip. I don't want to detail
12 all the sources of documents we reviewed, but we have not
13 found any information in the record that we've reviewed to
14 date to deal with these international law issues. Plain and
15 simple.
16 THE COURT: Your application is denied until you've
17 done a more exhaustive review.
18 What's next?
19 MR. MOORE: I don't know what a more exhaustive
20 review is required, Judge.
21 THE COURT: It sounds to me you've particularized,
22 reviewed depositions and exhibits that were part of the
23 depositions. That's it.
24 MR. MOORE: That's not it. We also reviewed other
25 documentary sources, other documents in the national
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31
1 archives. We haven't reviewed all of the documents in the
2 national archives because we have not had the time to do
3 that. That's not unreasonable in light of the fact that this
4 case has been going on from our perspective only a couple of
5 months.
6 THE COURT: A couple of months?
7 MR. MOORE: Since March, January. The case was
8 filed in January.
9 THE COURT: Eight months.
10 MR. MOORE: Service was made in February. We had a
11 first court appearance on March 18th.
12 THE COURT: Right. On March 18th we're going to
13 hurry up, get these MDL documents, make them available for
14 you, going on this. We're late in the game on
15 Judge Weinstein's scheduling order.
16 MR. MOORE: I understand the scheduling order. It
17 said if there are particular documents that you think you
18 need, renew your request in front of the magistrate. The
19 magistrate will consider them. This is a request we think is
20 reasonable.
21 THE COURT: It's denied until you've reviewed the
22 MDL, tell me the documents you're requesting were in the
23 issues they deal with are not in those documents.
24 What is next?
25 MR. MOORE: You're placing unfair burden on these
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1 plaintiffs, just unfair.
2 THE COURT: What's next?
3 MR. MOORE: We've also asked for information in our
4 request ‑‑ first of all, requests were objected to on the
5 grounds everything is in the MDL 381 file, everything we
6 asked for is in the MDL 381 file, as if that's a magic word
7 that relieves them of the burden of responding to any
8 discovery demands in this case.
9 We asked, for instance, any documents related to
10 our discovery demands that were generated after discovery
11 closed in this case which presumably would not be in the MDL
12 381 file, particularly with respect to Mr. Sabetta just
13 mentioned medical reports, scientific reports that on into
14 the 90's have continued to verify their assertion there's
15 nothing, no medical problems caused by exposure to dioxin.
16 We've asked for information subsequent to the end of
17 discovery with respect to our discovery demands. I don't
18 understands why we shouldn't be able to be entitled to that.
19 THE COURT: Judge Weinstein did specifically
20 ordered causation was not part of this discovery.
21 MR. MOORE: It doesn't go ‑‑
22 THE COURT: He couldn't have been more explicit.
23 MR. MOORE: I'm in a Catch 22 at some level. The
24 defendants recognize that as well.
25 THE COURT: You should have raised it on March 19th
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33
1 on the 6th floor.
2 MR. MOORE: It was raised March 19th.
3 The point is some of this doesn't necessarily go to
4 causation, goes to their knowledge of the toxicity of the
5 chemicals, which if it's an evolving knowledge, we're
6 entitled to know that.
7 THE COURT: Mr. Sabetta, you want to be heard,
8 anybody else?
9 MR. SABETTA: I think the documents that have been
10 produced address the issues that counsel is asking about.
11 THE COURT: You better come up here. I'm not sure
12 they can hear you on the phone.
13 MR. SABETTA: All the defendants were required by
14 law to cease production of 2,4,5‑T in the early 1970s, I
15 guess. Agent Orange was not produced after 1969.
16 The documents were produced in the MDL litigation
17 only in the early '80s. Speaking for my client, I'm not
18 aware of ‑‑ I'm aware of the fact studies have been done
19 since the close of discovery in the class action. There's a
20 wealth of causation related material. I'm not aware of
21 documents relating to other issues in this case which
22 Judge Weinstein has authorized the plaintiffs to look into.
23 It's conceivable there's something out there that's been
24 written or developed that came into the possession of one of
25 the defendants. I don't know what it would be, but the
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34
1 material elements of the discovery that the plaintiffs are
2 interested in are in the record already. That's our view.
3 If there's anything lurking in post‑class action discovery,
4 it's de minimis, probably redundant, cumulative and nothing
5 striking.
6 After all, there have been other post‑class action
7 settlement litigations. There's been a lot of litigation,
8 sort of over the years, continuing Agent Orange litigation.
9 If there was something extraordinary, it would have popped up
10 by now. I'm not aware of any such group of documents. Other
11 counsel can speak for their clients. That's my view, your
12 Honor.
13 THE COURT: Mr. Brock, what do you know?
14 MR. BROCK: The request specifically for
15 scientific studies, is, as I understand, and I would agree
16 with Mr. Sabetta, that my understanding is that the judge
17 specifically said because of the expense involved, that we
18 were not going forward on that.
19 I would also just note all of those documents are
20 public documents; that plaintiff would have access to all of
21 them, any scientific studies. If there's some relevance that
22 any have to the issues in the case, which seems doubtful,
23 plaintiffs can use them.
24 THE COURT: Any other defense counsel want to be
25 heard?
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35
1 MR. GORDON: I'm just repeating what Mr. Sabetta
2 and Mr. Brock said. I would point out in the case of Diamond
3 Shamrock, it did file in the court in 1988 a complete index
4 to all the documents that it produced in the litigation, done
5 by the source of the document and the folder title, goes on
6 for 50 pages.
7 In 1970, Diamond Shamrock shut down its 2,4,5‑T
8 plant as a result of the cancellation of the government
9 orders. There was a glut of 2,4,5‑T and Diamond Shamrock got
10 out of the business. This became ancient history for them
11 but for the Agent Orange litigation. The case was settled in
12 1984. That was it.
13 Mr. Moore seems to assume that there was a
14 continuing focus on Agent Orange after 1984 and that is just
15 not the case. With the settlement of the case, the class
16 action, that was it. There's nothing else.
17 THE COURT: What's next?
18 MR. MOORE: Your ruling.
19 THE COURT: Application denied.
20 MR. MOORE: That was the nature of our August 3rd
21 letter to your Honor.
22 THE COURT: You apparently have a problem with
23 scheduling; is that right?
24 MR. MOORE: I don't know that we have a problem
25 with scheduling. There are motions that Judge Weinstein
SS, OCR, CSR, CM, CRR
36
1 wants to hear.
2 THE COURT: Right.
3 MR. MOORE: Which will be impacted by what we
4 believe to be our inability to get discovery, particularly if
5 they make fact‑based motions. If they're making legal
6 motions, we'll respond to it. If they're making fact‑based
7 motions, using affidavits by people who were not deposed,
8 using documents that were not generated in the discovery ‑‑
9 THE COURT: I can't imagine that's going to be the
10 case.
11 Let's assume that's not. Do you want to tell me if
12 that's the case, Mr. Sabetta?
13 MR. SABETTA: We will address some legal issues the
14 court has identified. Those don't require factual discovery
15 by either side. Then we will probably also move on
16 government contractor defense grounds to dismiss the toxic
17 tort claims, common law tort claims. To that extent, the
18 record is essentially complete, in the can, if you will, in
19 other cases.
20 MR. BROCK: Your Honor, I should clarify. At the
21 March 18th hearing, the judge acknowledged defendants could
22 move both as a motion to dismiss and for summary judgment.
23 THE COURT: Right.
24 MR. BROCK: On these claims. There are some
25 aspect of the claims which do raise factual matters. I think
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37
1 as a practical matter, the facts are the same, the same body
2 of facts looked at in the government contractor defense.
3 THE COURT: If you knew in your supporting
4 document, for instance, summary judgment motion, there isn't
5 anything new that is already in this record.
6 MR. BROCK: You would also have to say how you
7 treat affidavits of experts on international law. Obviously,
8 they haven't put in evidence previously, but at the same
9 time, those are not of the character of underlying
10 documentary historical evidence. So, I believe we should
11 have the opportunity to that. I believe also, and plaintiffs
12 should expect we may be pointing out matters in the MDL 381
13 record which weren't necessarily the ones commented on in
14 prior court decisions but are within the existing document
15 production of that universe.
16 THE COURT: Yes. Then they can go see what it is.
17 They have access to it now.
18 Right now your motion dates are September 10th; is
19 that right? That's your first date?
20 MR. MOORE: That's the date. Can I inquire whether
21 defendants are going to file one joint brief?
22 THE COURT: Go ahead. You can inquire.
23 MR. MOORE: I'm inquiring.
24 MR. BROCK: If we knew for sure, we would
25 certainly tell you. We're working on it at this point,
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38
1 preparing our papers. We still have to meet, work out among
2 all various clients exactly what motions we are going to
3 file, what our position is going to be.
4 MR. MOORE: We'll know when the briefs are filed,
5 right?
6 THE COURT: Yes. The motion scheduled in the July
7 30th letter that you apparently agreed to, which is September
8 10th, October 11th, October 25th is agreeable with me.
9 That's your schedule. Thank you.
10 Anything else?
11 MR. MOORE: Counsel on the phone? Mr. Cuker, are
12 you there?
13 MR. CUKER: We have written letters. Let me state
14 our position. Since we were last before your Honor, we
15 requested from the national archives based on the index
16 supplied by the defendant every possible box that could
17 possibly contain a deposition transcript from MDL 381. We
18 identified 89 boxes. We went through them, as your Honor
19 knows, made arrangements to get them copied. We did get them
20 copied and went through them. In going through them, we have
21 identified approximately 50 or so additional transcripts that
22 are not in MDL 381. Plus, we've also identified 20 sets of
23 exhibits, two transcripts where we have the transcripts and
24 don't have the exhibits.
25 We made a request of the defendants for those. We
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39
1 just received those last week. Frankly, they're still being
2 copied. We don't expect to have the copies until this
3 Friday.
4 In addition, pursuant to another order by
5 Judge Weinstein, we had asked for some depositions and
6 transcripts from the Hercules litigation. We requested five
7 and got four delivered to me today, about eight inch stack I
8 received in today's mail for the first time.
9 I want to talk a little bit about the issue of
10 indexes because it relates to the fact we're dealing with a
11 bit of a moving target. Everything we have received, we
12 still have identified four transcripts that we don't have,
13 the MDL doesn't have. Defendants say they don't have. We've
14 also identified seven transcripts for whom exhibits are still
15 missing.
16 We had some informal discussions with Mr. Brock
17 sometime ago about his database and the information on that
18 database. What we said to Mr. Brock, which I would like to
19 bring to the court's attention now, obviously we're not
20 entitled to work product, shouldn't get work product, but to
21 the extent that database contains comprehensive depositions
22 of MDL 381, which would then help us identify what else may
23 have been missing from the archives, we think that should be
24 produced, obviously be redacted to remove all work product.
25 They can print such work portions that would have the
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1 information, be helpful, redact the portions that don't.
2 THE COURT: Mr. Brock ‑‑ you left it off you've
3 had informal discussions with Mr. Brock, Mr. Cuker. So?
4 MR. CUKER: He made it clear they weren't going to
5 produce anything. What I would ask, they be directed to
6 produce such information from that database as contains a
7 list of all the deponents in 381, MDL 381 so we can then be
8 sure whether we do or do not have the complete universe of
9 depositions to look at to respond, to file a position for
10 reconsideration.
11 THE COURT: You mean who was deposed> .
12 MR. CUKER: Yes.
13 THE COURT: Mr. Brock?
14 MR. BROCK: There were about five or 600 cases
15 transferred to MDL 381.
16 THE COURT: Can you hear?
17 MR. CUKER: Yes, five hundred cases transferred to
18 the MDL.
19 MR. BROCK: Many of them proceeded before several
20 years and there was a case designated as the lead class
21 action which went ahead, was ultimately settled.
22 Following that settlement, there were many cases
23 left over and there were further proceedings and there have
24 been further proceedings. There were often depositions in
25 those cases.
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1 To attempt to figure out, generate a list that is
2 comprehensive of all depositions in the case, it would be us
3 having to do an enormous amount of work, going through a lot
4 of this material. We do not have, and there wouldn't have
5 been any reason for us to have prepared a comprehensive list
6 of that nature. Perhaps the most comprehensive list that
7 occurs to me, the two places I would look if I were trying to
8 find information myself are, first of all, the indexes we
9 provided to plaintiffs of the materials in the Washington
10 National Record Center, and you're going through the boxes
11 themselves. I think for all I say, they looked at all, every
12 box that could possibly contain them. I'm sure that's a
13 mistake, given the fact they have a number of depositions
14 they've got, still asking for things that I'm sure are
15 contained in there.
16 One example, I believe, they're requesting the
17 Buckingham deposition, Air Force historian, deposed, dealt
18 extensively with the chemical warfare issues, all the
19 underlying materials that he relied on were part of the
20 record. That would be available if they had looked.
21 THE COURT: You mean that's in the MDL materials?
22 MR. BROCK: Yes, all of that exists.
23 THE COURT: You let Mr. Cuker know that?
24 MR. BROCK: It's in Judge Weinstein's opinion.
25 THE COURT: Mr. Cuker, there isn't any such list.
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1 MR. CUKER: What I'm saying is this. I think we
2 need to address the issue head‑on here, not talk about other
3 depositions, other cases. They have a litigation database.
4 That database has to have information about who was deposed
5 in the case. I'm not asking them to go outside that
6 database. Within that database there has to be reference to
7 deponents. I'm saying that I wanted simply to have a list of
8 every deponent that's in that database to compare against
9 what we found in the MDL.
10 Let me say something else about the index they
11 provided. The index they provided of the MDL depositions was
12 extremely vague. It says stuff like box 120, depositions, GA
13 to SE. That's what it says. It doesn't tell you the name.
14 It's simply part of, a fragment of an alphabetical index. It
15 wouldn't tell you if Frisby or Fenner is in there until you
16 actually open the box, see what's in there. You couldn't
17 tell.
18 By the same token, if Fenner, Ferrick and Frisby
19 are in there, but Flannagan was deposed, Flannagan is not
20 there, we don't know it because we don't know that Flannagan
21 was deposed. That's why we're running into the situation
22 with the moving target. The more we get into it, the more we
23 see references to depositions that we don't have.
24 All we're asking for is simply a list of every
25 deponent that's identified in the litigation database.
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1 MR. BROCK: After Mr. Cuker has acknowledged these
2 matters were discussed in the course of all the proceedings,
3 discovery deadline, which everybody acknowledges passed on
4 August 10th. We never had a motion to compel, don't have a
5 motion to compel now. We have an oral request raised for the
6 first time at the hearing. I think these matters were fully
7 asked.
8 THE COURT: You said to me before in your first
9 response was if you have a list, it may not be complete
10 because it ended at a certain point, things went on after,
11 right?
12 MR. BROCK: We never made a list that was
13 intended, as far as I know, to include all the depositions in
14 MDL 381. It would be lists dealing with particular areas,
15 lists dealing with perhaps the class action. The best source
16 for that, again, I would cite the MDL 381 record. There was
17 a pretrial order which included lists of deponents whose
18 evidence was going to be introduced.
19 THE COURT: There may be deponents whose evidence
20 was not going to be introduced. That's what he's talking
21 about.
22 MR. BROCK: We would be in the same position going
23 to do research on that.
24 THE COURT: The short answer, you don't have such a
25 list?
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1 MR. BROCK: No.
2 THE COURT: Mr. Cuker, this would be round 3. He
3 doesn't have a list.
4 MR. CUKER: I'm saying you could look at the
5 database. I do not believe it would be asking him to create
6 a different database.
7 THE COURT: Thank you. I'm not going to require
8 them to create a list.
9 MR. CUKER: The second thing is there. We're just
10 getting now the discovery contemplated, we would have
11 complete discovery by August 10th.
12 THE COURT: That's right.
13 MR. CUKER: File a brief by September 10th.
14 THE COURT: That's right, because the MDL
15 depository was not complete, even though represented to be
16 complete by the defense, we're just now getting an additional
17 50 deposition transcripts. We're not going to have until
18 Friday. I received depositions from the Hercules case, which
19 I got today, after the deadline has run. In addition,
20 there's still four depositions transcripts we don't have and
21 exhibits to seven transcripts we don't have. There's no way
22 we can possibly do justice to the issues in this case if we
23 only have until September 10th to file our brief. We're just
24 getting half the transcripts after the discovery deadline.
25 Secondly, I want to talk a little bit about the
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1 Hercules case. I had some discussion with Mr. Hamlin about
2 the discovery case because Judge Weinstein authorized us to
3 ask for six transcripts. Basically, he said there are a
4 whole lot of witnesses, I don't have one list. I don't know
5 who you wanted and we went back and forth and he said there's
6 a trial transcript. Since he was unable to provide me with a
7 comprehensive list of the witnesses who might have knowledge
8 about the government control of the Hercules plant, in fact
9 for Agent Orange, I requested the transcript, because that's
10 not the list acknowledged. There were people who testified
11 on that very issue. They've refused to give us a transcript.
12 They have given us the depositions of five witnesses which
13 they gave us today, but they can't represent that's all the
14 people with knowledge, they've even given us a list of people
15 with knowledge. To say the least, that's a very incomplete
16 record for us to go on.
17 When there were quite a number of witnesses that
18 may have had knowledge ‑‑
19 (Continued on next page)
20
21
22
23
24
25
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1 THE COURT: Judge Weinstein already ruled on that
2 on what you were entitled to in the Hercules case.
3 MR. CUKER: We were entitled to six depositions.
4 THE COURT: Right.
5 MR. CUKER: Let me just state for the record that
6 that is pretty meaningless. We don't know who was deposed
7 and what they know.
8 Basically, we're just picking out of a hat six
9 depostion transcripts out of apparently scores, if not a
10 hundred, of depositions taken in the case.
11 THE COURT: Who wants to be heard on it? Who is
12 here for Hercules?
13 MR. HECK: I am. Number one, in terms of the
14 deposition transcripts, with we got letters from Mr. Smoger
15 at the end of June saying there were 11 deposition
16 transcripts out of 52 that we cited where he couldn't find
17 them in the records that they looked at.
18 We immediately made those available. No one
19 contacted us about those until the beginning of last week.
20 We did get at the end of June, July ‑‑ towards the
21 end of July, a request for some 50 or 60 deposition
22 transcripts that they said were not in the records.
23 Mr. Smoger's letter to your Honor, dated the 12th
24 of August, doesn't say that they looked at the whole record.
25 In fact, it says that they didn't. Either there's one of two
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47
1 conclusions, either they are in boxes there that don't
2 specifically say they contained depositions or they aren't
3 there.
4 To avoid any issue, your Honor, we made those ‑‑
5 every transcript that we had in my firm available to Mr.
6 Smoger. They were sent out to a copying service on Wednesday
7 of last week.
8 My understanding was that they were supposed ‑‑ we
9 were supposed to get them back on Friday. I don't know if
10 fact if we did ‑‑ last Friday. I didn't understand it was
11 going to take, and I don't know why it would take 10 days to
12 copy, but that's neither here nor there, they got them on the
13 11th.
14 THE COURT: Plaitiffs got them on the 11th?
15 MR.HECK: Correct. There are three depositions
16 that Mr. Smoger identified in his letter to your Honor of the
17 12th that said he didn't have. We said we would look for
18 those and provide them.
19 I've asked the other defendants to look for and
20 provide to the plaintiff's whatever Kelly Drye didn't have
21 that they also had requested previously. We should have
22 those, to the extent we can find them, to him promptly.
23 THE COURT: All right.
24 MR.HECK: In terms of the Hercules, Mr. Hamlin had
25 discussions with Mr. Cuker. Mr. Hamlin identified a number
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48
1 of witnesses, including government witnesses.
2 Towards the end of July, Mr. Cuker made a request
3 for five deposition transcripts. Mr. Hamlin went, had to
4 hunt those down. He's found four of the five, which Mr.
5 Cuker now acknowledges he has.
6 The other requests were for a preliminary
7 injunction hearing transcript and a trial transcript.
8 Number one, your Honor, the judge's order was
9 deposition transcripts; number two, he said, which plaintiffs
10 claim are relevant to defendants' knowledge.
11 These aren't deposition transcripts, and
12 plaintiffs' claim for them is that it has something to do
13 with the government control over Hercules Manufacturing
14 Plant, so we don't think it's in accordance with what the
15 judge ruled.
16 THE COURT: All right. I'm not going to require
17 any additional production in that regard. So we're back to
18 this schedule, this additional time that you want for
19 discovery; is that right, Mr. Cuker.
20 MR. CUKER: Yes, your Honor.
21 THE COURT: What did you have in mind?
22 MR. CUKER: Ninety days extension of time. Not
23 just for discovery, obviously, but, you know, we will review
24 all this information and incorporate it into a fairly
25 complicated brief.
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1 So the brief, which is currently due September 10,
2 we would ask that be moved back to December 10.
3 THE COURT: Anybody want to be heard on the
4 schedule?
5 MR.HECK: Your Honor, I think the judge ‑‑
6 THE COURT: This is Mr. Heck. Go ahead.
7 MR.HECK: The judge, when he set August 10 as a
8 discovery cutoff and September 10 for the plaintiffs to
9 make ‑‑ in the Iseckson and Stevenson case, to make any
10 motion for reconsideration, had in mind they would have six
11 moths for discovery, which they asked for, and a month at the
12 end of discovery.
13 It's not to say they couldn't be preparing that
14 motion in advance, but they had approximately a month. They
15 still have approximately a month, your Honor. So I ask that
16 your Honor deny the motion.
17 MR. CUKER: Could I ask Mr. Heck a question?
18 THE COURT: Go ahead.
19 MR. CUKER: Because I didn't hear him address the
20 issue of the missing exhibits from seven transcripts
21 identified in Mr. Smoger's letter of August 12.
22 MR.HECK: Yes. I asked other ‑‑ Kelly Drye could
23 not find them in its files. I've asked other defendants to
24 see if they have them. If they have them, they will be made
25 available to you as promptly as we can find them.
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1 MR. CUKER: Right now we do not have them and it's
2 past August 12, obviously.
3 THE COURT: Yes, and they are doing everything
4 they can to try and find them for you.
5 MR. CUKER: I'm sure they are, Judge.
6 THE COURT: I'm going to give you 30 additional
7 days and that's it.
8 What is that going to do to the briefing schedule?
9 MR. CUKER: That would make our brief due on
10 October 10. Let me see what day of the week that is.
11 THE COURT: It's a Sunday. Make it the 11th.
12 MR. CUKER: Okay. Your Honor, I guess the
13 fortunes are smiling on the plaintiff. My guess is that is
14 probably Columbus Day. It is Columbus Day. So I guess it
15 will be due the 12th.
16 THE COURT: Yes, Mr. Brock.
17 MR. BROCK: One of the matters that Judge
18 Weinstein particularly said was in the March 18th hearing was
19 his desire that these case go up together and ‑‑
20 THE COURT: I know.
21 MR. BROCK: ‑‑ and be coordinated.
22 THE COURT: What we have to do is adjust all the
23 dates. The dates have to just track each other.
24 MR. BROCK: Okay. So we'll be addressing the
25 Vietnam case?
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1 THE COURT: Let's review the pertinent dates now.
2 The dates for filing, the defendants' motion and plaintiffs',
3 would be October 11th. Right ‑‑ the 12th.
4 MR. MOORE: The defendants' motions.
5 MR.HECK: Moving parties served by the 12th.
6 THE COURT: Then we go to November 12th, which is a
7 Friday, and he then he had provided that you had two weeks.
8 That is Thanksgiving Weekend, so we'll go to December 3rd.
9 MR. MOORE: What are the dates, October 12th,
10 November 12th?
11 THE COURT: And December 3rd. So everything is
12 adjusted with the same amount of time in between by 30 days,
13 30 some days.
14 MR. MOORE: To the extent that the defendants file
15 multiple briefs, we may be required to come back and ask the
16 court to adjust that time. So just to put the court on
17 notice of that.
18 THE COURT: I'm on notice. Thank you.
19 MR. MOORE: One other thing that we wanted to
20 raise with you that my co‑counsel Mr. Milton wanted to raise
21 with you concerning the moving of these boxes to Central
22 Islip.
23 MR. MILTON: Just because what Mr. Goldberger
24 represented was not what I was told by Mr. Heinemann, who
25 said he specifically wanted a court order ‑‑
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1 THE COURT: He got it. I took care of it. Million.
2 MR. MILTON: I am sending a list to the U.S.
3 Attorney and they will provide ‑‑ presto, they will provide
4 them?
5 THE COURT: I don't know about presto. They will
6 appear as soon as possible in Central Islip.
7 MR. MILTON: Without having to ship stuff back?
8 THE COURT: Yes. I am as convinced as you are that
9 there is plenty of space. Thank you.
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