Case No. 02-B-48191 (Jointly Administered).United States Bankruptcy Court, N.D. Illinois, Eastern Division.
June 30, 2004
TRIAL ORDER REGARDING PROCEDURES FOR RESOLVING AMERICAN’S JFK TERMINAL 9 CLAIM
EUGENE WEDOFF, Bankruptcy Judge
Upon the Objection[1] to proof of claim no. 36785 of American Airlines, Inc. and the Response of American Airlines, Inc. thereto; and this proceeding having come before the Court for pretrial conference or status hearing, it is hereby ORDERED THAT:
1. The Procedures for Resolving American’s JFK Terminal 9 Claim (the “Procedures”), attached hereto as Exhibit A, shall be approved as amended herein.
2. The parties shall file witness and exhibit lists with the Court on or before the 200th day after the above-captioned debtors and debtors in possession (collectively, the “Debtors”) file their Plan of Confirmation with the Court.
3. The Court will rule on the omnibus motions regarding the admissibility of evidence and testimony on or before the 220th day after the Debtors file their Plan of Confirmation with the Court.
4. Any listed exhibits as to which there is no objection will be admitted into evidence at the outset of the hearing.
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5. The trial in this matter shall commence on or after the 231st day after the Debtors file their Plan of Confirmation with the Court.
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Exhibit A Procedures Exhibit A 1. PROCEDURE FOR RESOLVING AMERICAN’S JFK TERMINAL 9 CLAIM
A. Objection to Claim and 3018(a) Hearing
1. Filing Date
a. United Air Lines, Inc. (“United”) shall file its Objection to the JFK Terminal 9 Claim of American Airlines, Inc. (“American”) on or before March 26, 2004. These Agreed Procedures shall be limited to American’s JFK Terminal 9 Claim, which includes only American’s claim for damages in excess of $70,000,000 as set forth in paragraph 4 of and exhibit A to American’s Proof of Claim dated May 8, 2003. All other matters raised in American’s Proof of Claim are reserved for determination at a later time and shall not be subject to the Agreed Procedures contained in this document.
b. American shall file its reply to United’s Objection on or before April 30, 2004.
2. Objection Content and Form
The Objection shall contain:
a. United’s factual and legal objections to American’s JFK Terminal 9 Claim.
b. American’s name and address as listed on its asserted JFK Terminal 9 Claim.
c. The number that has been assigned to American’s JFK Terminal 9 Claim Poorman-Douglas.
B. Initial Settlement Discussion
The Parties (meaning collectively, American and United) shall engage in an initial settlement discussion on the 17th day after United files its Plan of Confirmation with the Bankruptcy Court (“Plan”).[1a]
C. Discovery (Excluding Depositions)
1. Discovery Schedule
The Parties shall each serve the written discovery, as set forth below, so that it is received by the other party no later than April 19, 2004. Each shall provide the responses to the interrogatory requests and copies of all non-privileged documents responsive to the document requests that were not previously produced in the JFK Terminal 9 Litigation by May 17, 2004.
2. Form and Number of Allowed Discovery (ExcludingDepositions)
The Parties may each serve the other party with up to 25 interrogatories and 25 document requests including subparts. An interrogatory or document request containing subparts directed at eliciting details concerning a common theme shall be considered a single question.
D. Fact Witnesses
1. Primary Fact Witness Identification and DepositionSchedule
The Parties shall identify all primary fact witnesses by the 7th day after United files its Plan. The Parties may depose the primary fact witnesses who were not previously deposed during the JFK Terminal 9 Litigation during the four-week period commencing on the 22nd day after United files its Plan.
2. Fact Witness Designation and Testimony
a. The Parties shall each be allowed to identify up to a total of twelve primary fact and rebuttal fact witnesses. Parties shall designate in good faith their primary witnesses. Such identification shall consist of a written notice identifying the name, current address and telephone number for each fact witness, as well as the additional information set forth below for fact witnesses who were and who were not previously deposed in connection with the JFK Terminal 9 Litigation.
(1) Previously Deposed Fact Witnesses
With respect to any fact witnesses previously deposed in the JFK Terminal 9 Litigation, such written notice shall also identify and include the specific portions of such person’s prior testimony (deposition date, transcript page and line references) that the party intends to introduce as evidence. Testimony for such previously deposed fact witnesses shall be limited to the deposition testimony excerpts, subject to evidentiary objections, identified by the Parties on or before the 7th day after United files its Plan. Such fact witnesses will not be allowed to testify through affidavit.
(2) Fact Witnesses Not Previously Deposed
With respect to party fact witnesses (i.e., current employees, contractors, agents, or representatives of the Parties) and non-party fact witnesses who were not previously deposed in the JFK Terminal 9 Litigation, the written notice shall also include sworn affidavits of no more than 15 pages each (subject to evidentiary objections) containing the extent of each such person’s testimony. The sworn affidavits shall constitute the fact witnesses’ affirmative testimony. If such witnesses are not deposed and their testimony in such affidavits is admissible under the Federal Rules of Evidence, the witnesses’ affidavits shall be included with the Opening Briefs of the Parties and shall be admissible at the Objection Hearing. With respect to non-party witnesses only, if affidavits cannot be obtained, such non-party witnesses may be deposed subject to the Federal Rules of Civil Procedure, limited to three hours of direct examination, three hours of cross-examination by the opposing party, and 30 minutes of re-direct examination by the party offering the witness, provided that each party may depose witnesses of the other party not previously deposed.
b. If a fact witness providing an affidavit is deposed, the deposition shall be:
(1) taken subject to the Federal Rules of Civil Procedure;
(2) limited to the subject matter of the witness’s affidavit, issues identified by the Parties in this litigation, and impeachment; and
(3) limited to four hours of cross-examination by the opposing party and two hours of re-direct examination by the party offering the witness. Testimony of fact witnesses deposed during the four-week period commencing on the 22nd day after United files its Plan shall be admissible at the Objection Hearing and shall be limited to deposition testimony excerpts, subject to evidentiary objections. The Parties shall identify and include the specific portions of each person’s deposition testimony (deposition date and transcript page and line references) that each party intends to introduce in the form of attachments to their briefs submitted in connection with the Objection Hearing.
c. At the Objection Hearing, the Parties may cross-examine the other party’s fact witnesses whose depositions have been taken for a total period of up to five hours. Depositions of fact witnesses whom a party seeks to cross-examine will be admissible if such witnesses are unavailable and their deposition testimony is admissible under the Federal Rules of Evidence. Each party shall be entitled to one hour of re-direct examination at the Objection Hearing or to designate portions of deposition testimony for witnesses who are unavailable.
E. Expert Witness Designations, Depositions and Testimony
1. Primary Expert Witness Schedule
The Parties shall identify their primary expert witnesses by the 50th day after United files its Plan. Such identification shall consist of a written notice identifying the name, current address and telephone number for each expert witness, as well as the expert report of each expert witness.
The Parties may depose the primary expert witnesses during the four-week period commencing on the 63rd day after United files its Plan.
2. Expert Witness Reports and Testimony
The Parties shall each be allowed to identify up to six primary and rebuttal expert witnesses in accordance with the primary and rebuttal expert witness schedules set forth herein. Each expert shall provide a report that conforms to the requirements of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. Expert witness depositions shall be: (a) taken subject to the Federal Rules of Civil Procedure; and (b) limited to six hours of cross-examination by the opposing party and one hour of re-direct examination by the party offering the expert. The expert reports shall constitute the expert witnesses’ affirmative testimony.
Experts shall be required to attend the Objection Hearing. At the Objection Hearing, each party may cross-examine the other party’s experts for a total period of six hours. The party offering the experts shall be entitled to one hour of re-direct examination.
F. Rebuttal Witnesses
If any party has designated less than twelve primary fact witnesses and/or less than six primary expert witnesses, such party may designate rebuttal fact and/or rebuttal expert witnesses, provided that any witnesses identified that have not previously been deposed, may be deposed subject to the procedures and deposition time limits set forth herein for fact and expert witnesses. The Parties shall identify all such rebuttal fact and expert witnesses by 95th day after United files its Plan, and under no circumstances shall either party exceed a total of twelve fact witnesses (primary and rebuttal) and a total of six expert witnesses (primary and rebuttal). Such identification shall be consistent with the requirements above for the primary fact and primary expert witnesses. With respect to rebuttal expert witnesses, such identification shall consist of a written notice identifying the name, current address and telephone number for each rebuttal expert witness, as well as the expert report for each rebuttal expert witness. With respect to rebuttal fact witnesses, such identification shall consist of a written notice identifying the name, current address and telephone number of each fact witness, as well as the additional information set forth above for primary fact witnesses who were and who were not previously deposed in connection with the JFK Terminal 9 Litigation. The Parties may depose the rebuttal fact or rebuttal expert witnesses during the four-week period commencing on the 98th day after United files its Plan.
G. Supplemental Testimony
For good cause shown and upon court order, either party may obtain through deposition supplemental information from previously deposed and available witnesses, limited to two hours of direct examination and two hours of cross examination, provided that nothing in this paragraph shall allow the Parties to increase the limits on the number of witnesses.
H. Pre-Hearing Briefing
1. Briefing Schedule
a. United shall file and serve its Opening Brief by the 142nd day after United files its Plan.
b. American shall file and serve its Response Brief by the 163rd day after United files its Plan.
c. United shall file its Reply Brief by the 186th day after United files its Plan.
2. Briefs
a. United’s Opening Brief
(1) United may file and serve its Opening Brief not to exceed 75 single-sided, double-spaced pages (exclusive of exhibits, affidavits or deposition testimony). Such Opening Brief shall contain a detailed factual and legal explanation of United’s basis for its objections to American’s JFK Terminal 9 Claim.
(2) Any documents, affidavits and deposition testimony on which United relies in its opposition to American’s JFK Terminal 9 Claim must be included as exhibits to its Opening Brief.
(3) United must include a certificate of counsel or affidavit stating that any documents attached to its Opening Brief are authentic.
b. American’s Response Brief
(1) American may file and serve a Response Brief not to exceed 75 single-sided, double-spaced pages (exclusive of exhibits, affidavits or deposition testimony).
(2) Any documents, affidavits and deposition testimony on which American relies in support of its claim must be included as exhibits to its Response Brief.
(3) American must include a certificate of counsel or affidavit stating that any documents attached to its Response Brief are authentic.
c. United’s Reply Brief
(1) United may file and serve a Reply Brief not to exceed 25 single-sided, double-spaced pages (exclusive of exhibits, affidavits or deposition testimony).
(2) Any documents, affidavits and deposition testimony on which United relies in its Reply Brief must be included as exhibits thereto.
(3) United must include a certificate of counsel or affidavit stating that any documents attached to its Reply Brief are authentic.
I. Omnibus Motion Regarding Admissibility of Evidence andTestimony and Pretrial Order
Any objections that the Parties have to the admission of any materials included in the evidentiary record shall be filed in the form of an omnibus motion (not to exceed 30 pages) no later than the 200h day after United files its Plan. Documents, affidavits, expert reports and deposition testimony not timely objected to shall be admitted in the record. Responses to the Omnibus Motions shall be filed on or before the 214th day after United files its Plan.
The Parties shall prepare a Pretrial Order containing stipulated facts and conclusions of law and disputed issues of law and fact no later than the 227th day after United files its Plan.
J. Objection Hearing
1. Hearing Schedule
The Objection Hearing shall commence on or after the 231st
day after United files its Plan, and shall last no more than five days.
2. Hearing Format
The Court shall determine American’s asserted JFK Terminal 9 Claim pursuant to the following format:
a. Opening Statements
(1) United (3 hours)
(2) American (3 hours)
b. Cross Examination of Fact Witnesses
(1) United (5 hours) (2) American (5 hours)
c. Re-Direct Examination of Fact Witnesses
(1) United (1 hour) (2) American (1 hour)
d. Cross Examination of Expert Witnesses
(1) United (6 hours) (2) American (6 hours)
e. Re-Direct Examination of Expert Witnesses
(1) United (1 hour) (2) American (1 hour)
f. Closing Arguments
(1) American (1 hour) (2) United (1 hour)
3. Evidentiary and Legal Record
The evidentiary and legal record shall be confined to:
a. The Notice and attachments thereto;
b. United’s Objection and American’s Reply;
c. Initial Fact Witness Designations and the affidavits and deposition testimony attached thereto;
d. Expert Witness Designations and Reports;
e. Opening Briefs, Response Brief and Reply Briefs, and the documents, affidavits, and deposition testimony attached thereto;
f. Argument, cross-examination and re-direct examination presented at the Objection Hearing; and
g. Additions that the Bankruptcy Court may allow or request as it deems necessary or appropriate.
Nothing herein shall preclude United or American from requesting additions to the record.
4. Resolution
Upon the Bankruptcy Court’s review of the submissions and the argument and testimony at the Objection Hearing, the Bankruptcy Court shall determine the amount of American’s JFK Terminal 9 Claim.
K. Further Settlement Meetings
The Parties shall agree to two settlement meetings after discovery has commenced and prior to the Objection Hearing, such settlement meetings to include persons with authority to agree to a settlement for each party.
L. Role of the Official Committee of Unsecured Creditors
1. The Official Committee of Unsecured Creditors (the “Creditors’ Committee”) may participate in all phases of the adjudication of American’s Proof of Claim, including depositions, pre-hearing briefing, settlement discussions and objection hearings.
2. To the extent that the Creditors’ Committee files an Opening Brief, such brief shall not exceed 20 single-sided, double-spaced pages (exclusive of exhibits, affidavits or deposition testimony). Either Debtor or American may choose to file a reply to any matter issue raised by the Creditors’ Committee. Such Reply shall not exceed 15 pages.
3. To the extent that the Creditors’ Committee files a Reply Brief, such brief shall not exceed 10 single-sided, double-spaced pages (exclusive of exhibits, affidavits or deposition testimony).
4. To the extent that the Creditors’ Committee deposes a witness, such deposition shall occur as scheduled pursuant to paragraphs D and E, and shall be limited to one hour.
5. The Creditors’ Committee reserves the right to move the Bankruptcy Court to file briefs of additional length or to depose witnesses for additional time.
6. The Parties and the Creditors’ Committee shall mutually agree in advance of the Objection Hearing on time limits for any statements or witness examination by the Creditors’ Committee.
7. All documents files or served by the Parties shall also be served upon counsel for the Creditors’ Committee. Documents produced by Debtor or by American, in discovery in response to document requests or as parts of an answer to an interrogatory need not be served on the Creditors’ Committee but shall be made available for inspection and copying at the offices of counsel for Debtor or American.
8. Nothing herein shall waive any rights of the Creditors’ Committee arising under 11 U.S.C. § 502.
Schedule
March 26, 2004 United Objection
April 19 Written Discovery
April 30 American Reply to Objection
May 17 Responses to Discovery
Week of June 7 Stipulation Discussion
June 15 Status Conference with Court
Plan +7 Identify primary fact witnesses, excerpts from such witnesses previously deposed
Plan +17 Initial Settlement Discussion
4 weeks beginning Depose fact witnesses not previously deposed Plan +22
Plan +50 Identify Primary Expert Witnesses; Produce expert reports
4 Weeks beginning Depose Primary Experts Plan +64
Plan +95 Identify Rebuttal Fact and Rebuttal Expert Witnesses
4 weeks beginning Depose Rebuttal Fact and Rebuttal Expert Plan +98 Witnesses
Plan +142 United Opening Brief
Plan +163 American Response to Opening Brief
Plan +186 United Reply Brief
Plan +200 Parties’ Omnibus Motion
Plan +214 Responses to Omnibus Motion
Plan +220 Pre-hearing Conference
Plan +227 Pretrial Order
Plan +231 or thereafter Hearing based on Court’s schedule
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