UNITED STATES DISTRICT COURT DISTRICT OF OREGON THE HON. THOMAS M. COFFIN, JUDGE PRESIDING

Transcription

1 UNITED STATES DISTRICT COURT DISTRICT OF OREGON THE HON. THOMAS M. COFFIN, JUDGE PRESIDING 0 KELSEY CASCADIA, ROSE JULIANA, et ) al., ) ) Plaintiffs, ) ) v. ) No. :-cv-0-tc ) UNITED STATES OF AMERICA, et al., ) ) Defendants. ) ) REPORTER'S TRANSCRIPT OF PROCEEDINGS EUGENE, OREGON TUESDAY, FEBRUARY, PAGES - Kristi L. Anderson Official Federal Reporter United States Courthouse 0 East Eighth Avenue Eugene, Oregon 0 () - Kristi_Anderson@ord.uscourts.gov

2 0 APPEARANCES OF COUNSEL: FOR THE PLAINTIFFS: Julia A. Olson Wild Earth Advocates Lincoln St. Eugene, OR juliaaolson@gmail.com Philip L. Gregory Cotchett, Pitre & McCarthy, LLP 0 Malcolm Road Burlingame, CA Fax: pgregory@cpmlegal.com Daniel M. Galpern Law Offices of Daniel M. Galpern Oak St Eugene, OR dan.galpern@gmail.com FOR THE DEFENDANTS: Sean C. Duffy U.S. Department of Justice Environment & Natural Resources Division P.O. Box Washington, DC Fax: sean.c.duffy@usdoj.gov Marissa A. Piropato U.S. Department of Justice Environment & Natural Resources Division P.O. Box Washington, DC Fax: Marissa.piropato@usdoj.gov

3 0 FOR THE INTERVENOR-DEFENDANTS: C. Marie Eckert Miller Nash Graham & Dunn LLP SW Fifth Avenue Suite 00 Portland, OR 0-- Fax: Frank R. Volpe Sidley Austin, LLP 0 K Street, N.W. Washington, DC Fax: -- fvolpe@sidley.com

4 PROCEEDINGS TUESDAY, FEBRUARY, THE CLERK: Now is the time set for Civil Case No. -, Juliana, et al. versus United States of America, et al., for a Rule conference. Well, who wants to be heard first? Your Honor, this is Julia Olson for 0 the plaintiffs, and I'd like to begin. Just to start, I think we all are aware that time is really the enemy of these plaintiffs right now, and the status quo is the enemy of the plaintiffs. So short of preliminary injunctive relief, our best hope is moving this case to trial by this fall. And we believe that that is still possible after reviewing the status reports that were submitted by both sets of defendants in the case. And so I would like to just walk through how we think we can do this and the steps we think are important to get us there. So, first of all, we would request respectfully that the court set monthly status conferences so that we could call in perhaps the first Wednesday of each month to update the court and deal with any discovery issues that are arising, and I believe that the federal defendants, in their status report, also requested that the court take an active

5 role in the discovery aspect of this case. Well, I can certainly accommodate you in that. Great. Okay. Secondly, we have carefully reviewed 0 the answers of both sets of defendants, and we quickly thereafter propounded a set of requests for admissions to the federal defendants in an attempt to further narrow the scope of the documents that we will need to seek from the defendants, and we believe that certain -- together yesterday? the status reports -- yes, Your Honor. Did you folks, by the way, get We spoke on Friday after exchanging Okay. -- and had another meet and confer, Okay. And the primary issue here, from our perspective, is that counsel for defendants are concerned, largely in part because of our litigation hold letter, that we will be seeking documents to the full breadth of that letter, when in fact that letter was merely consistent with Rule and Local Rule - of this court, which requires

6 0 the defendants to preserve all documents that could be relevant to this case, which is a broad amount of documents, including ESI. However, our request for production documents is going to be much narrower than that. But it has been their obligation since August of to protect ESI and other relevant documents, and we haven't yet heard what steps they have taken to do that, particularly in light of the fact that we have heard through different reports that the new administration is in fact removing some information, at least from the public realm. So we would still like to hear their response to our litigation hold letter. next -- So our proposal related to documents is that by I believe you asked the court to basically adopt your litigation hold letter and make that an order of the court. objection to that? Am I correct in that? Yes, Your Honor. And does the government have any MR. DUFFY: We do, Your Honor. Just as an initial matter, I wanted to introduce Marissa Piropato, my colleague at the Department of Justice. She is new to the case and has yet to enter an appearance, but I think she could also speak to some of the issues and, with your permission, would

7 ask that she be permitted to speak as well today. Oh, certainly. MS. PIROPATO: Thank you, Your Honor. MR. DUFFY: Specifically with the litigation hold request, our view is ordinarily that the litigation hold request should cover the types of documents that a plaintiff is going to be seeking in the case. We have circulated that -- They are just asking you, if I 0 understand it correctly, not to destroy any evidence, any of this material that you take down from the website but to preserve it and archive it. MR. DUFFY: Right. And -- Do you have an objection to doing that? MR. DUFFY: Our objection is it's -- the litigation hold, the way these operate, in speaking with a number of my colleagues and agency staff who have been through this a few times, is that it's not just a matter of, okay, don't toss this important document out. They have already got policies in place and in the record that, of course, affects this, too. But a litigation hold stops the ordinary processes by which things are archived, s destroyed, tapes are written over.

8 It's actually a very onerous process for the agencies to redo their recordkeeping practices. And so what we would hope is -- and plaintiffs keep promising it but they have yet to deliver it -- is to give us a sense as to what exactly it is that they are going to be looking for in this litigation, given the answer and how that's narrowed the issues. MS. PIROPATO: And, Your Honor, if I may clarify, there are two separate issues here. One is the websites and 0 the retention of public information on the websites. And the second is the litigation hold letter that was propounded on January th,, which is so broad in its scope that it's staggering. So those are two very different things, and I just want to make clear what they were talking about because, as my colleague was saying, the agencies involved, we have talked to every single one of them, are retaining information on those public websites. Now, the litigation hold letter is a very different issue. And how so? MS. PIROPATO: The litigation hold letter is staggering in its breadth. It asks the agencies to retain every document related to climate change, every document related to navigable waters, every document related to

9 0 public lands, navigable air space, without any qualifications or limitations. So to give the agencies direction about what it means is incredibly difficult because some agencies, like the Council on Environmental Quality, said, if we read this letter, it's every document except internal human resource documents in our possession since. The Department of Transportation told us we would have to send this letter to every single employee of the Federal Aviation Administration, which is over 0,000 people. So that's why we are talking about two very different things. And I just want to make sure that we are all on the same page when we discuss the websites versus the litigation hold request letter that we received. And I can give you other examples. I am happy to do it. But the basic bottom line is the agency said we don't even know how to respond to this, it's so broad. I mean, if you are a public land manager and they want every document related to public land, that's everything they do. Well, I think they are saying this is not a demand for production. It's a demand that you not delete or erase or purge anything that is in the government's possession that relates to climate change. MS. PIROPATO: And there's regulations that deal

10 0 with that under the Federal Records Act. that's what my colleague is referring to. I think that MR. DUFFY: And, Your Honor, what I was -- what I 0 am learning from the agency is it is a learning process for us as well and they all have different policies. Some of them use different systems, some have legacy systems, and the ones who have been through this, for example, and just to give one example, the Deepwater Horizon litigation, which was also a very massive litigation, had told -- the way they have described it to me is a litigation hold is not prohibiting -- is not just prohibiting them from doing an act such as tossing something in the recycling bin or deleting an . A litigation hold also forces them to cease all of the passive activities, these passive processes that are automatic. And so now it's -- they have to re -- they have to redo their records policy for purposes of a litigation. And the way they have described it to me, it sounds like it's a very onerous process. And so when the plaintiffs have volunteered to define what they are going to request documentwise, particularly in light of the admissions we have in the answer, that, to us, provides -- at least gives us some hope that we can give the agencies reasonable guidance that they

11 can then follow through on. know what to do. But at the moment, they are flailing. They don't Well, it seems to me that this is something that would be very productive if you folks met and conferred about. MS. PIROPATO: We agree with that, Your Honor. For plaintiffs, I think we don't 0 understand specifically what's onerous about preserving the documents. We are not requiring you to organize or produce the totality of the documents identified in the litigation hold. And so perhaps we could get more specific about what additional tasks are required to preserve the information. MS. PIROPATO: I think we need to start from ground zero, which is this: What is the universe of documents we are talking about in the first instance? Okay. MS. PIROPATO: That is the problem. Your Honor, if I might, this is Frank Volpe on behalf of the intervenor-defendants. We agree with the government that this is an onerous and voluminous and way-out-of-scope litigation hold. One of the problems, from our perspective, is --

12 0 and we'll have more to say about fact discovery -- but one of the problems is the plaintiffs are asking both the intervenor-defendants to preserve but also the member companies. There are literally hundreds of member companies to these three associations that the plaintiffs are seeking preservation of materials for, and a large volume of materials. And that is just way beyond the scope. We have been asking the plaintiffs, and the government has been asking the plaintiffs, to narrow their universe so we can get a better fix on what discovery might look like. But under no circumstances do we believe that the member companies should be ordered. And that's the concern about ordering this litigation hold as a court order: Should the member companies be subjected to preservation requirements. MS. ECKERT: And, Your Honor, if I can add, this is Marie Eckert also on behalf of the intervenors, just a couple of additional thoughts. In the status report itself, the plaintiffs don't actually request that the litigation hold letter be entered as an order. Rather, what they are requesting is an order keeping the federal defendants from changing the website. So we do seem to be talking about two different things.

13 0 And then following up on Mr. Volpe's comments, the member companies for the trade associations, of course, are not parties to the litigation. We do not represent the member companies, and, as you know, for trade associates to participate in litigation, a requirement of standing is that the member companies not have to participate individually. So the litigation hold does raise additional issues along those lines. And similar to the government, the member companies are going to have in place, as any large corporate or governmental institution will, automatic archiving of s and documents, automatic destruction policies. No company keeps documents forever. So it isn't just a matter of not throwing things away. It's a matter of changing fundamental computer systems and operations for an institution. It's not a -- it's not a passive process. It's an active process, the litigation hold. And given the scope of the litigation hold proposed by plaintiffs, we don't believe it's an appropriate way to get at the fact discovery and the preservation of documents. Well, let me see if I can make an observation here, and this may help: Throughout my educational career, I concluded that the best teachers I had were the ones that could take the most complex subject

14 0 matter and simplify it to the point where it was more easily understandable. Conversely, the worst teachers I had were those that could take the most simple subject matters and complicate it hopelessly to where you couldn't understand it, and I had to ask my classmates to explain it to me. So what we are going to try to do here in this process is take what appears to be a complex case and see how we can simplify it to where it's more understandable and more manageable. And that task largely falls upon the shoulders of the lawyers involved with the court's assistance. I want to further this discussion by asking a couple of pointed questions here. I have reviewed the government's answer. I have reviewed the intervenor's answer, the answers to the complaint that was filed by the plaintiff. And the government makes a number of admissions in their answer. To summarize, the government has admitted that, yes, climate change is a reality and that, yes, it's induced by human activity, and they admit that CO right now is at a level of 00 parts per million, which exceeds the level -- is the highest level in millions of years. So a number of the allegations made by the plaintiffs in their complaint are admitted by the government.

15 0 The intervenors' answer, on the other hand -- basically the mantra of the intervenors' answer is we don't know, and on that basis we deny. We don't know what's going on. We don't know if it's climate change or not. We don't know if it's human induced or not. So to what extent does the government's admissions control where we go in this case? The intervenors in your proposed schedule indicate that they don't intend to do any fact discovery. Does that mean, then, that the intervenors essentially are not going to contest the government's admissions? So are you going to ride the government's coattails, so to speak, in this litigation? So -- Are you going to set out and attempt to controvert some of the government's admissions? So that's going to be a big help in terms of how we manage this discovery to find out what the intervenors intend to do. I understand the court's question, and the issue is, however, what are the material facts that the plaintiffs need to have us concede or ride the government's coattails, as the court puts it. And we have asked the plaintiffs to identify those facts that are alleged in the

16 0 complaint that they would need to take back discovery from the intervenors. This is a case about what the government did or what the government didn't do. It's not a case about what the intervenors did or didn't do. So it really is beside the point whether the intervenors concede or contest the factual underpinnings of the plaintiffs' case. This is largely a case -- and I am sure the court perceives this -- that will ultimately be decided by expert witnesses. This is a complicated area of a human activity, and the question about what climate change is, how it came about, whether it's different than it's been in the history of mankind, is going to be something that a fact witness is not going to be able to discuss. scientific issue. It's an expert issue and a And as we said in our submission to the court, on those issues, we may very well want to participate. But we don't see how fact discovery against the intervenor defendants pertains to that at all. Well, for example, let's just take a small example, do the intervenors acknowledge that the CO levels in the atmosphere are currently at 00 PPM? be a question -- Again, Your Honor, that seems to me to

17 Do you deny that, or do you not know? I would say that as we said in our answer, we don't know. You don't know. That's an issue that will be determined by a fact witness sitting in the deposition, but by a scientific witness who understands the, you know, environmental science. So as we sit here today, do you have 0 an expert witness that the intervenors intend to call that you can identify that will opine that the CO levels are not 00 PPM, but are something other than that and, if so, what? I don't know, Your Honor. I don't know, sitting here today, what the plaintiffs are -- you know, as the court is, I am sure, well aware, often the defendants respond to the plaintiffs' experts. And what the what the plaintiffs' experts are saying, the defendant intervenors and I am sure the federal government will want to respond to that. But that issue has not been teed up yet. We are in a morass of allegations that we have asked the plaintiffs to limit so we could get a better sense of what this case might look like. So whether it has to do with the CO levels, whether it has to do with the navigable waters that the

18 plaintiffs seem to be looking for information about, we don't know. We don't know what this case looks like. Well, in an effort to take a complex case and try to simplify it to make it more understandable, isn't the main thrust of this case the levels -- isn't the main thrust of this case the levels of CO atmosphere? in the 0 And what is a point at which -- a tipping point at which it becomes irreversible climate change with an increase in the temperature on the planet earth and what that does to the life forms on the planet? I mean, isn't that, in essence, the thrust of the case? How did we get there is an issue. How we deal with it is another issue. I would say those are the themes that run throughout the case. Okay. So if those are the essential themes, does that help guide us in the discovery issues -- Well, Judge or not. Those are pretty broad themes. And, again, if the plaintiffs are -- and I understand there are variations on the themes, to use a musical term, but the plaintiffs are the master of their complaint. The plaintiffs have to tell the court and the parties what they intend to prove, what they need discovery on, what they

19 don't need discovery on. I don't think it's for the government or for the intervenors, without knowing what the plaintiffs are going to do here, to set the -- tell the plaintiffs what they need to prove. intervenors? Can you assist the attorney for the 0 Yes, Your Honor. What we -- we set out to prove the facts that are alleged in the complaint, and it is a critical issue for us whether intervenors will dispute the facts that have been admitted by the government because that would be one way we could really limit some discovery. Our approach, what we'd like to propose, is we have been drafting requests for production of documents to the intervenors because we had their answer first. are prepared to send those out by February th. And we And we can also send out a first round of requests for production of documents to the federal defendants by February th. We would then propose that we all meet and confer on February rd to discuss whether there is any over-breadth in those requests that you can assist us in narrowing so that we can still receive the documents that we are looking for to help us prove the facts that are alleged

20 0 in our complaint. And we have suggested to federal defendants' counsel that with their presence, and it would be helpful to discuss with some of the agency personnel who oversee this kind of discovery production, who might be able to help us narrow our requests. So we are open to that. And we would ask that for purposes of authentication that we engage in a stipulation where both the intervenors and the federal defendants agree that any documents that are produced are deemed authentic so that we can avoid that issue at trial. So with respect to the documents, that's how we would like to proceed to get that ball rolling. I think once you see our specific request for production of documents, it will help give you more information to then meet and confer with us on any problems you see. Well, Your Honor, I understand that and I appreciate what the plaintiffs are saying. How does one set a schedule in a case of this enormity without knowing what the plaintiffs are going to request? I mean, the plaintiffs are proposing a five-month schedule, essentially. And I will say, having done this for a few years, that's impossible. There is no possible way that this discovery could get done in five months. It would take five

21 months to probably schedule and take the plaintiffs' depositions in this case. And so I don't know -- I don't -- it just seems -- it seems silly that we are sitting here talking about a five-month schedule without knowing what the plaintiffs are going to do. But I do want to ask a point of order. Well, she indicates that by 0 February th she'll have the document request in your hands. Well, so I can promise you -- what that is? Would it be prudent to wait and see Well, it may be prudent to wait and see, but I am telling you that unless it's, give us the organizational charts of the intervenor-defendants, anything else is going to entail a motion practice from the -- at least from the intervenor-defendants, and I assume there's going to be motion practice from the federal government as well, at least on the scope of the discovery. So sitting here and asking the court to set a five-month schedule, we'll be back in two months saying, Judge, we need a -month schedule. MS. PIROPATO: And, Your Honor, if I may interject, I just want to remind some of the guideposts that

22 0 plaintiffs have given us in their status report. They suggest they are going to take fact depositions, and each 0(b)() witness is one witness. Having done this before, 0 -- if you have a 0(b)() topic across agencies, we could be dealing for each topic witnesses. I have done this before. It is an enormous task to prepare those witnesses because there will not be percipient knowledge and then to effectively marshal everyone's schedules to get these massive amount of depositions to occur. So under their own schedule, the notion that we can, in under 0 days, do this massive amount of depositions is just unfathomable and divorced from reality based on my experience. To do this correctly, just for the depositions, it requires a lot of work, and I have been here before where I have worked 0-hour weeks and I've prepared my clients. But we need the time to prepare our factual case and to prepare our witnesses. And that schedule prejudices us and does not give us that time. Okay. Everybody is starting to use phraseology that, to me, is somewhat overstated: Unimaginable, unfathomable, immense, impossible, et cetera. What I am trying to do here is get a handle on this and reduce it to where it's not all those things but

23 where it's manageable. Let me focus on something the intervenor said and see if plaintiffs and the government essentially agree with this: The intervenors have basically made the point that in their view this is mainly a case that involves the experts. It seems to the court that that's probably a fair observation that this case is mainly going to be guided by expert testimony in terms of the main issue: Is climate change happening, is it human induced, is there a tipping 0 point, is the CO level currently at 00 PPM, is it necessary to reduce that to 0 PPM by a certain point in time, or is the damage to the planet going to essentially be irreversible if that's not done. It seems to me that those issues are not so much within the purview of fact witnesses, the individual plaintiffs, for example, or that defendants who are executives or what have you with various companies that intervenors represent, but it seems like those issues are pretty much within the purview of the experts that the parties would call in the case. Would it make sense to have different phases of discovery in this case? Would it make sense to begin with the experts and to produce their reports or to have them available for discovery? Let me ask the plaintiffs your position on that.

24 Your Honor, I think your articulation 0 of the issues, the scientific issues in the case, are correct. However, there are other components to the case that we also have to prove, such as what was the government's knowledge and the intervenors' -- I understand that. That's a subset. But that's a subset of the main issue. And would that subset make sense to follow up on that after the main issue is more developed with the experts? What do people know and when did they know it. And by the way, to my understanding of your case, that subset of what was known and when did they know it and did someone cover it up within the government, et cetera, that's part and parcel of your creation of danger substantive due process argument. It's really not a subset of your public trust doctrine argument. Under your public trust doctrine argument, it doesn't really matter what was known, who knew it, whether they deliberately ignored it and created a danger. What matters there is where are we now and where will this go if changes aren't made. That's correct, Your Honor. Let's not get lost in the substrata

25 here. 0 Why don't we begin by engaging the experts. Have I misquoted the intervenors about your view? No, Your Honor. That's exactly right. I will say because the plaintiffs have started to say this, she began by saying what the government knew, and then she was moving to what the intervenors knew. I still don't understand why what the intervenors' associations knew or didn't know is relevant to the allegations and the causes of action in the complaint. And that's an important issue from our perspective, obviously. And I just -- I just -- I really can't understand why what we knew or didn't know, what we said or didn't say, to the extent it's not in the governmental record, is relevant. Well, that's a legal issue, I suppose, that we can flesh out later. I mean, I am thinking about -- this is not a case for money damages, so I suppose by way of analogy, you could liken this scenario to what the tobacco industry knew and what they didn't inform the public about regarding the health effects of smoking. But in those cases, essentially you were dealing with plaintiffs who were suing for monetary damages. Here this case is not about anybody suing for money damages.

26 They are suing for equitable relief is the nature of what they are requesting. That's right, from the federal government, not from the intervenor-defendants. From the federal government. In the tobacco litigation, the tobacco companies were parties to the case. They were actually 0 being sued for monetary damages. This case is different in that the only presence in the case are through the intervention of the three associations. Okay. Let's get back to the experts and what they can contribute in terms of evidence to this case. I want to focus on the experts now. So, Your Honor -- You asked for how many experts for each? use to experts. Well, we have estimated that we will Let me stop you right there. I read that and I wondered why do we need -- or why do you need to experts? The court doesn't need to people to duplicate each other. Right, Your Honor. So why do you need as many as

27 experts? Are they going to address different parts of this case uniquely, or are you just going to call of them to say ditto, ditto, ditto because the court doesn't need that. Right. So currently the standing of our plaintiffs is still contested. I will get to the standing of the 0 plaintiffs later. Right now I am focused on the experts. Right. Well, part of our evidentiary burden is to establish that the government is in part responsible for causing climate change. The issues that Your Honor discussed related to the level of carbon dioxide that would protect the rights of our plaintiffs. But then there are other issues related to the impacts that are being felt by the plaintiffs and that will be felt in the future. And those involve the expertise of different types of scientists who specialize in increased severity and frequency of storm events or sea level rise or ocean acidification. So a lot of the field of climate science is very specialized, and there are different experts who would testify as to different parts of that story of the harm and the impact, for example. Can you whittle your experts down from? And if so, how far down can you whittle them? You may

28 not want to answer that now, but you see this direction I am going in. I do. Okay. You can confer among yourselves to see if the expert testimony can be narrowed in terms of the number of experts. How about the government? MR. DUFFY: Your Honor, I did want to talk about 0 experts because we have been thinking about this and specifically a couple of thoughts. We, too, have asked the plaintiffs if they can have a smaller amount of experts because with respect to their experts, we believe we are going to need to find rebuttal experts, probably equal or similar in number, and so to the extent they can reduce that, I think that would streamline things a little bit. Well, given your admissions, what rebuttal experts are you going to have to their experts who essentially are going to opine to science that you acknowledge is accurate in your answers. MR. DUFFY: Well, we haven't -- with, I take it. MR. DUFFY: So only those experts that you differ Well, we haven't seen those reports, and we need to see the reports. And I don't think we are

29 just going to piggyback on their expert. I mean, that just wouldn't be a trial if we were -- I think we would need to independently evaluate what their experts are saying, as we do in every case. Well, that's fine, but I get the impression that a lot of the government -- the plaintiffs' experts take their information from government findings and science -- MR. DUFFY: Well and a lot of your experts agree with their assessment. So I am just trying to -- you know, don't fight just for the sake of fighting. If there's things you agree on -- MR. DUFFY: Well, I understand, but we do need to see the reports. And I need to -- not just me see the reports. I mean, I appreciate your point earlier about the teacher simplifying things, but I also recognize my limitations. I am a lawyer. I am not a scientist. And even when I meet with scientists, I need to -- it's a process for me just educating myself sufficient that I could write, for example, an answer. But separate and apart from all of that, we have to make an affirmative case. I am not prejudging that. But Ms. Piropato and I now have the unenviable task of scouring the world's research institutions and universities to find

30 0 0 our own experts, to build our own model as to what -- what's going on here, and I am not prejudging any of these issues. But in addition to, you know, the climate issues and, you know, our answer is based on our conversations with the agencies, but now we are going to have a separate conversation with our agency personnel to say, okay, who are the experts you relied on when you issued these findings because our case is going to have a lot to do with finding what the agencies have done in the past decade. And the plaintiffs may have numbers that are similar to the ones that we provided in our answer. But the fact is there is no mention, as far as I know, in the complaint of any of these rule makings that EPA has been doing for the past decade. MR. DUFFY: Any of these what? Any of the rule makings that EPA has been doing in the past decade. It's just absent, as if it never happened. And so I don't know how this is all going to play out, but I think the starting point for us is going to be to sit down with all of the agencies, all of which have a part to play in the whole climate science and to work with them to begin this rather difficult process of finding our own experts who are going to issue their own reports. MS. PIROPATO: And if I may interject, Your Honor, to quote Mark Twain, "I'm sorry I didn't have time to make

31 it shorter." To get experts dealing with this complex issue 0 to simplify it in the way Your Honor contemplates, which is what I try to do every time I work with an expert, is no easy task, and it does take time because experts want to give you every single detail. And you have to understand what they are doing to help winnow it for the court as the finder of fact and to get to what I am going to call the heart of the issues. And that is not something you do in a month. And so not only do we have this process of locating the correct experts, building this affirmative case, then we actually have to build our affirmative case with those experts and get it to the point where it's digestible to someone like me and, when someone reads it, it is not, for lack of a better way to describe it, a morass of information of information that's indecipherable. So, Your Honor, I suggested to the plaintiffs that one way to begin this ball rolling is for them to provide the parties a -- what -- an old-fashioned expert disclosure, the old disclosures where you don't give a report but you lay out basically who the expert is and what his or her opinions are likely to be. I thought that that might be a way to get to the nut of the issue quicker than waiting through -- you know, for fact discovery to close.

32 I think it's consistent with what you were thinking, Judge, is a way to kick off the expert discovery here because there may be experts that the plaintiffs propose that the government says, aah, we don't need to contest that, or there may be experts that the government has that the intervenor-defendants don't need. So it seems, again, that we're a bit amorphous here without any real definition, and I think that's what the court is trying to get at. 0 MS. PIROPATO: And, Your Honor, I have done that in other cases and it has been very helpful. And in that case, we did have ten experts and it was a year discovery process for experts alone. But certainly having that initial disclosure helped us tailor our experts that we retained and our affirmative experts. Your Honor, we are happy to do that, and I was going to propose that we begin disclosing experts in days and do so on a rolling basis. And we are happy to provide a short summary about the core issues that that expert will be testifying about. Well, then, is it agreed, then, that within days the plaintiffs can identify their experts and make a -- days, Your Honor.

33 Did you say or?, please.. days. And in the meantime, we 0 still will send our request for production of documents. We think that there is enough overlap between fact and expert discovery, we want to proceed on both tracks at the same time and move things along according to the schedule that we proposed. What is the overlap? That's what I am trying to get at. What is the fact expert overlap that the plaintiffs need to take fact discovery regarding? I think, from what I understand plaintiff to be saying and from my past familiarity with this case, there's a subset of their substantive due process case that involves what did you know and when did you know it and did someone cover it up, did they create this danger. And therefore does -- that substantive due process violation, is that triggered by essentially what the government knew and the inaction of the government in light of that knowledge or the action of the government in light of that knowledge to contribute to exacerbate the problem. So that's the subset I think you are talking about. And then there -- but, you know, to me this case

34 is primarily driven by the science. And this case goes nowhere with just a string of anecdotal, you know, stories about floods, storms, et cetera. It goes somewhere with the assistance of the experts that are going to offer the science regarding what is happening, why it's happening and let the experts, then, address those issues. That's going to be the main thrust of this case as it goes forward, in my opinion. Does anybody disagree with that? 0 MR. DUFFY: I don't, Your Honor. I don't disagree with that. No, Your Honor. Okay. So let's get started on the experts. days. And you can have your document production requests filed within that time period, too. To me it makes sense to approach this case, in terms of discovery, in phases, although I notice that you didn't think that was appropriate. I think it is appropriate because I think it will, as we go forward, clarify a number of the issues. MS. PIROPATO: And, Your Honor, may I clarify something? That days I assume only applies to plaintiffs because the United States at this juncture has not retained any experts, and I don't think we would be in a position to make any disclosures by days, particularly since we

35 haven't seen plaintiffs' list yet. Well, okay, but surely you are going to look for experts -- MS. PIROPATO: We are. -- without even knowing what the plaintiffs' experts' disclosures are, correct? MS. PIROPATO: Correct. the issue is. I would think because you know what 0 MS. PIROPATO: Right, but it's been my experience, Your Honor, that sometimes even going through our contracting unit can take up upwards of 0 days, at which point we can't disclose it until we get approval from the contracting unit. So even when I was about to go to trial in a year, they still took two months. So we have not only the logistical difficulty of locating these experts and teeing that up with our affirmative case, there are some bureaucratic hurdles I want to alert the court to. ambitious for us. So I do think days would be Well, at least start on it. MS. PIROPATO: Absolutely. Surely there must be some in-house experts. MS. PIROPATO: We are going to start this on

36 0 Thursday. We are going to do everything we can. I just want to be very candid about some of the practical difficulties we may face. I don't want to prevent -- present a date that I don't know if we can meet. I do think, Your Honor, this is -- what the government said and what my experience has been in litigation tells me that it makes sense that it's staggered expert disclosure that we can respond to the plaintiffs' expert disclosure, and again, it's not -- these are not reports. It's just the -- you know, a summary of what the experts might say. And then we will know and the government will know, hey, I don't need an expert here or I definitely need an expert here. We can see what the government does and we can say, yeah, we are all covered. We are good. But to just -- for all the parties to submit expert disclosures to each other on the same day seems to be somewhat wasteful in my mind. Well, it can be staggered. I just want that process to begin. that we should begin. MR. DUFFY: me. Yes, I definitely agree, Your Honor, That seems like a sensible approach to

37 not the issue here. MS. PIROPATO: We will begin right away. That is Can we set a deadline for the number of days after we disclose our experts that you will then disclose yours? MR. DUFFY: days? That's fine with plaintiff. Will that be -- will that be enough? I think -- I would like to address 0 that. If we are going to have monthly status reports, address it then because the first thing that comes to my mind is, okay, I can set up a meeting with some of the agency personnel pretty quickly. Then they need to direct me to a couple of people that they think are going to have good knowledge, and then I need to interview them and see, you know, who's going to be a good witness. And I just want to -- I am not quite sure exactly how that task is going to be, but I think, you know, we are definitely willing to, you know, work on this straight away and, you know, provide updates and -- MS. PIROPATO: We could do rolling as well, Your Honor, because it might be that we can find experts very -- certain experts very quickly and others take longer. could do a rolling disclosures as well. So we Okay. And we'll do these monthly

38 status reports to stay on top of this. I have another question. And I don't expect an answer right now, necessarily. But I would like to know the ability of the intervenors to independently contest issues that the United States admits. Are you asking as a legal -- a legal matter? Yes. To the extent the United States 0 has made admissions, to what extent do the intervenors have the ability to contest the admissions of the United States? You assert, to me somewhat inconsistently, that you intervened but you don't need any fact discovery or you don't want the plaintiffs to participate in fact discovery from your individual corporations that your agencies represent, and you really have no -- apparently your position is you have no control over these individual companies that are members of the organizations that are intervening? They are not parties to the litigation. The associations -- the ultimate representation of the individual members, the associations, the three associations have intervened in the case. They are before the court. The member companies are not before the court. Okay. So my question, then, is to the extent that that's your status in the case, to what extent

39 do you have the ability to challenge the government's admissions? The government is the defendant being sued by the plaintiffs. True. As you point out, you are not being sued. Right. And your member companies aren't being sued. 0 So what legal standing do you have to contest admissions that the United States makes in this litigation? That's my question. You don't need to answer it now, but I need some guidance on that. That's a good question, Your Honor, and I will think some more about it. But let me make sure I understand the court and the plaintiffs' position. If the plaintiff -- intervenors do not contest the government's admissions in their answer, does that mean the plaintiffs will not take back discovery or will agree not to take back discovery against the intervenor? Well, I can't answer that question off the top of my head, but it would certainly seem to call into question the need for fact discovery. I understand you can't answer that, Judge, but maybe the plaintiff -- plaintiffs can answer

40 0 that. Sure. That's something for them to contemplate. Yes, I agree. Your Honor, we would agree not to take discovery on issues that are not contested in the case. But to the extent there are facts that are contested, then we do want to do discovery. Okay. So that's a -- Ms. Olson's 0 articulation, I understand what she's saying, but to what facts are -- the fact that the plaintiff -- the plaintiffs themselves enjoy skiing, is that a fact that we don't -- we say we can't admit or deny that but have to take discovery on that? Or -- and I am being silly for a point. I understand your question, and that brings up to plaintiffs that I was going to get to anyway, the plaintiffs, many of them, if not all of them, have submitted declarations regarding the impact of climate change on them. The court has ruled that in essence the fact that harm is widespread doesn't mitigate against the standing of the plaintiffs to file a lawsuit complaining about the harm to them. The court has in essence ruled that these plaintiffs don't have to show some sort of individualized,

41 0 particularized, peculiar harm to them that is different from the harm to the rest of us, the rest of humankind, from climate change. And so if that's the legal ruling in the case, quite frankly, I am a little bit in the dark as to what individualized questioning of each plaintiff on the standing issue, why that's necessary, but I am not going to preclude the parties from doing that, the government from doing that or the intervenors from doing that. But maybe the way to proceed there is to streamline that, begin with the declarations of the plaintiffs, and then make them available for a deposition wherein the government and the intervenors can ask them questions. Quite frankly, I would think that you could do most of that telephonically and save the expense and the time of having everybody travel to have the individual plaintiffs deposed. But I am open for suggestions on that. Does that make sense? MR. DUFFY: Your Honor, we have discussed this a little bit with the plaintiffs during our status conference, and just a few things. They propose a couple of things like maybe streamlining the number of plaintiffs we would depose. And

42 we are certainly open to that. One concern I have and something that I would want to ask about is there's a number of allegations concerning causation that are in the complaint with respect to each of the plaintiffs. And we want to -- we contest that. And so that -- that's an issue we want to explore a little bit. 0 causation. MR. DUFFY: Such as? Give me an example, Federal government causes climate change. It's in their, plaintiffs' -- the part of the complaint that I was responding to for the individual plaintiffs. It's just kind of thrown in there, but, I mean, it's in there. And so we -- If I understand, their contention in that regard is that the federal government has promoted the development of fossil fuels and leases -- you know, mineral -- allows companies to come in and extract natural gas, things of that nature. MR. DUFFY: Well -- I think that's how they mean that you cause it. MR. DUFFY: Well, the individual plaintiffs don't make those sorts of allegations, but, I mean, to just take one example, specifically defendants' actions have caused

43 0 damage to and continue to threaten the resources on which plaintiff relies for her survival and well-being. Well, we want to ask the plaintiff what, you know, what basis -- where is this coming from, how are you connecting this all up because that's kind of one of the important issues I think in this case is how you tie up all of this causation, and they are alleging that, and so we would want to do a deposition. From my own experience, I don't like video depositions and I don't like video interviews. They just -- you just can't replace speaking to a person in a room. And so I would prefer -- I know -- I don't like flying around the country. I have small children. But, you know, maybe we can consolidate these. I mean, they don't need to be long depositions, that's for sure. Okay. And Your Honor, we are happy to provide the plaintiffs that we are putting forward for standing for depositions, and we would again ask that you limit your depositions to those plaintiffs. We would like to ask for a protective order over the content of those depositions to protect the privacy and safety of the youth involved in this case, and I believe counsel for both sets of defendants have agreed that they are open to having a protective order.

44 MR. DUFFY: We agree. Yes. MS. PIROPATO: No challenge. Okay. So I use the core example, Your Honor, 0 I mentioned the plaintiffs specifically, but what my point was, it's -- to the extent we are contesting or conceding factual points, it's useful for us to understand which points the plaintiffs believe that we would need to contest or not contest, rather, sorry. Not contest. There's -- it's a hundred -- what, two hundred and some odd -- 0 allegations in the complaint. Some of them obviously are legal without factual underpinnings, but it's helpful to understand what -- again, back to my point, which is how is this case going to get built. What is the case going to look like when we -- when and if this case goes to trial. And there are many allegations that will -- I don't think will pertain to what ultimately is tried before the court. That may be, but the good news is it's a court trial, and a court trial can provide for a lot more flexibility than a jury trial and schedules can be more easily accommodated. The trial can proceed in phases with gaps between the phases, and we can make progress that way.

45 0 And speaking of phases, okay, I have indicated we can have a phase where the experts are disclosed and summarized and people can know more about what the experts are going to say and retain their experts and respond, and we can have that fleshed out. We can deal with the plaintiffs and their standing. We can deal with whatever fact witnesses and document discovery issues we have. We can talk about having a trial in phases where the first phase may be -- it may be logical to have a first phase on the issue of liability. Is climate change happening? Are there levels beyond which it's going to be irreversible or extraordinarily harmful? Is it human induced? Is the government responsible and did the government cause any of it and are the plaintiffs' constitutional rights violated by what's happening in terms of climate change? And depending upon the outcome of that phase, then it makes sense to me that it would be appropriate to proceed to the next phase, if there is one, and the next phase would be the remedy phase. Your Honor, one issue that plaintiffs have with that two-phased approach at this point is that there are facts that will be in evidence and expert

46 testimony that will relate both to the liability question and to the remedy phase. Okay. So there's overlap, and I think it would be more efficient and save time to present that in one trial. Well, but this is one trial because you have the same trier of the case. 0 Um-hmm. You are not going to have different juries. But it may be that depending upon the outcome of the first phase, there may be some -- you may have your witnesses opine on what the remedies are, but it may be that the other parties may have different experts to call at a remedy phase. Your Honor, I just can't imagine this case proceeding in any other manner, a remedy and then a -- follow -- following a liability determination. Otherwise, this trial will go on forever, and then the court would be presented with a record that it would have to sift through on both remedy and liability when, if the court found that there is no liability, that would be the end of the matter. And I understand what Ms. Olson is saying, that there are going to be some overlap experts. That's almost always the case in a complicated piece of litigation like