CERTIFIED COPY. SOUTH CAROLINA, Plaintiff, vs. No. 138 NORTH CAROLINA, Defendant.

Transcription

1 SOUTH CAROLINA, Plaintiff, vs. No. NORTH CAROLINA, Defendant. CERTIFIED COPY TELEPHONIC CONFERENCE BEFORE SPECIAL MASTER KRISTIN MYLES Friday, March 1, 00 Reported by: DANA M. FREED CSR No. 0 JOB No.

2 SOUTH CAROLINA, Plaintiff, vs. No. NORTH CAROLINA, Defendants Telephonic Conference before Special Master Kristin Myles, beginning at :03 a.m. and ending at :50 a.m. on Friday, March 1, 00, before DANA M. FREED, Certified Shorthand Reporter No

3 APPEARANCES: For SOUTH CAROLINA: ASSISTANT DEPUTY ATTORNEY GENERAL BY: ROBERT D. COOK CHILDS CANTEY Post Office Box 5 00 Assembly Street, Room 51 Columbia, South Carolina agrcook@ag.state.sc.us KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C. BY: DAVID C. FREDERICK SCOTT ANGSTREICH DAVID SARRATT Attorneys at Law 5 M Street, N.W., Suite 00 Washington, D.C dfrederick@khhte.com For NORTH CAROLINA: NORTH CAROLINA DEPARTMENT OF JUSTICE BY: CHRISTOPHER G. BROWNING MARC BERNSTEIN JIM GULICK Attorneys at Law West Edenton Street Raleigh, North Carolina cbrowning@ncdoj.gov For PROPOSED INTERVENOR DUKE ENERGY CAROLINAS, LLC: SIDLEY AUSTIN LLP BY: CARTER G. PHILLIPS Attorney at Law 01 K Street, N.W. Washington, D.C cphillips@sidley.com

4 APPEARANCES: (Continued) For PROPOSED INTERVENOR CATAWBA RIVER WATER SUPPLY PROJECT: AKIN GUMP STRAUSS HAUER & FELD LLP BY: THOMAS C. GOLDSTEIN Attorney at Law Robert S. Strauss Building 33 New Hampshire Avenue, N.W. Washington, D.C. 003 tgoldstein@akingump.com For the CITY OF CHARLOTTE: HOGAN & HARTSON LLP BY: JAMES T. BANKS MICHAEL BOYD PARKER THOMSON H. CHRISTOPHER BARTOLOMUCCI Attorneys at Law 555 Thirteenth Street, N.W. Washington, D.C

5 Friday, March 1, 00 :03 a.m. - :50 a.m SPECIAL MASTER MYLES: This is Special Master Myles. We're going to conduct roll call for today's call, see if everybody's here. Why don't we begin with South Carolina and North Carolina and then proceed to the intervenors? MR. FREDERICK: This is David Frederick for South Carolina. In my office are Scott Angstreich, and David Sarratt. MR. COOK: This is Bob Cook for South Carolina along with Childs Cantey. MR. BROWN: This is Chris Brown -- excuse me, this is Chris Browning for North Carolina. With me in my office is Jim Gulick, G-u-1-i-c-k, Marc, M-a-r-c Bernstein, B-e-r-n-s-t-e-i-n, and Jennie Hauser, H-a-u-s-e-r, first name J-e-n-n-i-e. SPECIAL MASTER MYLES: Can we go back? I think, for the court reporter, it would help to spell some of the names of South Carolina. I think, Mr. Frederick, I didn't quite catch the names that you had said. MR. FREDERICK: Sure. This is David Frederick, F-r-e-d-e-r-i-c-k, along with Scott

6 Angstreich, A-n-g-s-t-r-e-i-c-h. S-a-r-r-a-t-t. SPECIAL MASTER MYLES: MR. COOK: And David Sarratt, Thank you. Bob Cook, C-o-o-k, along with Childs Cantey, C-h-i-l-d-s, C-a-n-t-e-y. SPECIAL MASTER MYLES: Okay. Why don't we just go to the intervenors then. Duke Energy. Charlotte. MR. PHILLIPS: MR. BANKS: This is Carter Phillips for This is Jim Banks for the City of On the phone and for Charlotte are Mike Boyd, B-o-y-d, with the Charlotte City Attorney's Office. Parker Thomson, T-h-o-m-s-o-n, and Chris Bartolomucci, B-a-r-t-o-l-o-m-u-c-c-i. law firm of Hogan & Hartson for Charlotte. MR. GOLDSTEIN: Catawba River Water Supply. All with the This is Tom Goldstein for SPECIAL MASTER MYLES: Okay. So it sounds like we have everybody. Why don't we just -- I don't think this call needs to take a lot of time. I just thought we'd go through the agenda and discuss issues including those raised by the parties' status reports which were extremely helpful. Does anybody have any issues they want to raise first? Okay. Then why don't we move to item

7 number 1 on the agenda, the status conference reports. Item number 1 was a very good question, and I thought one that needs to be addressed right away, which is the scope of the relief sought by South Carolina, which I think correctly is framed by North Carolina as by the -- it's framed by North Carolina as being bounded by the complaint. And therefore, I think we should have a resolution of that as soon as possible. I think that's -- what makes sense to me to do is to have a brief exchange of arguments. This could be in the form of briefs or letter briefs, as you've done here, simply addressing the question of the scope of the complaint. Because I think the pleading does dictate this issue. And if that's incorrect, of course, that can be included in the briefs. If I'm not correct to say that it's bounded by the pleadings. But at least those two issues, is it bounded by the pleadings and what do the pleadings include, is something that ought to be resolved right away. So what I thought we could do is set up a schedule for submissions on that issue and a schedule for, if necessary, a -- probably a telephonic hearing on that issue. So that we can -- because I think resolution of that issue is going to affect all

8 other parts of the case, including the case management plan. So, what do people think in terms of, I mean, this really goes primarily to the parties in terms of time in which we could brief that issue? MR. FREDERICK: This is David Frederick for South Carolina. Special Master Myles, was it your thought that we might have this briefed and argued prior to the March th hearing on the intervention motions? SPECIAL MASTER MYLES: No, I didn't really tie it to that at all. MR. FREDERICK: Okay. SPECIAL MASTER MYLES: I think that it should be resolved expeditiously, but I don't think it needs to be -- unless someone disagrees, I don't -- I don't really see the relationship between that issue and the issues to be discussed at that hearing. I don't want to load too much into that hearing, only because we already have three motions on that day. So plausibly one could put that same issue for discussion at the hearing on that day. I don't have a problem with doing that, but I don't think they're necessarily tied. Do you have a view on whether that ought to

9 happen? MR. FREDERICK: Well, for South Carolina, there are some efficiencies to having the scope of the complaint argued while we're all together. SPECIAL MASTER MYLES: Uh-huh. MR. GOLDSTEIN: Special Master Myles, this is Mr. Goldstein. Related to that, it does seem to me that the scope of the complaint could inform the question of the propriety of intervention and the interest of the would-be intervenors, depending on whether the remedy would be limited to flows in North Carolina, or instead North Carolina and South Carolina, whether it would be limited to interbasin transfer or not could tell you a fair amount about what stake the intervenors have. The would-be intervenors' stake is obviously not itself determinative but it may be helpful. SPECIAL MASTER MYLES: I don't disagree with that. My only, my main concern is timing. I don't want to move the hearing. I don't want to delay that hearing any further. And I think that -- I suppose if people can get their briefs in relatively soon, we can have that issue teed up for the hearing. But that somewhat depends on when the parties can get their submissions in on that

10 MR. BROWNING: This Chris Browning assuming that the scheduling that would be that South Carolina would file their brief and we would respond to it, since it's South Carolina that's trying to describe what's within the scope of their complaint. SPECIAL MASTER MYLES: That would be my -- MR. FREDERICK: This is David Frederick. We disagree with that. We think the complaint speaks for itself and North Carolina is making arguments about what they think is in the scope of the complaint. I mean, we're happy to do simultaneous briefing in the interest of expedition with short replies. But this is North Carolina's issue. They're the moving party here. SPECIAL MASTER MYLES: Well, they're not the moving party. They raised the question, which I think is a legitimate question. So I think, in some sense, one could argue that the burden's on, I think you could make argument on both sides, frankly, as to who ought to go forward. But thinking about it for a minute, I don't see why it couldn't be done in simultaneous briefing. Because it is, as you said, the pleading somewhat speaks for itself and really it's a question of

11 gathering up what the arguments are from the pleading. So I don't see why that couldn't be done simultaneously with each side having the ability to reply to the other side's submission. So, if that's what the party would prefer, I'd be happy with that structure. It doesn't lend itself in any obvious way to a, a three-part structure. Opening opposition reply structure. MR. BROWNING: This is Chris Browning. We would be more than glad to comply with whatever briefing schedule most assists the Special Master. SPECIAL MASTER MYLES: Yeah, okay. Why don't we do that? Why don't we do the simultaneous briefing. That's also a very efficient way to proceed, more efficient. Then we have two weeks from today to get to the hearing. And we could have the simultaneous reply -- I mean, opening briefs, would we be able to do that by next Wednesday? And then have the simultaneous reply briefs on Friday? That would give a week before the hearing. So that would be the 1th of March for the opening briefs or the 1st. If that's too tight on the replies, we could do the th. That's kind of tight on the opening brief, though. Why don't we say the 1th and the 1st. But if that's a hardship for anyone, we could kick it over until the

12 th. MR. BROWNING: This is for North Carolina. The 1st, our office is closed. SPECIAL MASTER MYLES: Oh, it's Good Friday, of course. Yeah. Let's do the th. Well, that's Easter weekend, so that doesn't help very much either. But -- MR. FREDERICK: For South Carolina, we're comfortable with either of the schedules. SPECIAL MASTER MYLES: Unfortunately, we're constrained by the th. So can we make it the th, the 1th and the th? MR. FREDERICK: Certainly. SPECIAL MASTER MYLES: It should be a pretty simple issue, I would think. DEPOSITION OFFICER: Please state your name before you speak. SPECIAL MASTER MYLES: That would be helpful. MR. FREDERICK: That was David Frederick saying certainly that's a fine schedule for us. DEPOSITION OFFICER: Thank you. MR. BROWNING: This is Chris Browning. If that's what the Special Master needs, we certainly would be able to do that. My preference would be rather than the 1th, the 0th, just based on some

13 oral arguments that are scheduled the first part of next week. So if we could do the 0th and th? SPECIAL MASTER MYLES: Would that give sufficient time for the replies? MR. FREDERICK: This is David Frederick. We'll be happy to do that briefing schedule. SPECIAL MASTER MYLES: Okay. So we will say 3/0 for opening briefs on the scope of the pleadings. 3/ for replies on that issue. Okay. MR. FREDERICK: How long would you like for those briefs to be? SPECIAL MASTER MYLES: I was going to say they really could be any length. I was thinking about that, too. I mean, I imagine people aren't going to go overboard. I don't mind reading, you know, it's a simple issue, so I don't imagine it would lend itself to any great length. So I'm not going to set a page limit. And also, I want this to be in a format that lends itself to being in a record. But letter briefs are probably fine, if you want to do a regular format brief. You obviously don't have to do -- you know, you know the rules don't require anything printed or anything, you know, fancy. But the letter briefs you did would be a fine format, or probably slightly

14 1 3 5 preferably just because it's going to be part of the record, a regular, you know, brief on regular paper would be good. It's also more readable to have it double-spaced. It does raise the question whether, issue two, North Carolina's Issue seems to me at least to e, to be part of Issue 1. I mean, it's part of -- mean, really it's Issues 1,, 3. Probably, it doesn't strike me that is necessarily part of this issue. But 1,, and 3 seem to me to be part of what we would be talking about. Do people agree with that? MR. BROWNING: This is Chris Browning for North Carolina. Yes, we would agree with that. SPECIAL MASTER MYLES: Okay. So does South Carolina disagree with that, Mr. Frederick? MR. FREDERICK: No, we will brief this however you want us to brief it. SPECIAL MASTER MYLES: Okay. Why don't we do 1,, and 3? If anybody wants to say anything about Issue, that's fine. But that doesn't strike me so much as an issue that's necessarily a pleading-driven question. Okay. Just look at the agenda here. I think that's everything for that issue. The next issue raised by the letter report is the phasing of the case, which conceptually makes

15 accepts to me. Again, the first phase would be dependent on the resolution of this pleading issue. But the idea of phasing in terms of entitlement or the burden of going forward or the burden of proceeding followed by a phase on the other issues would make sense to me. Is there a middle phase? Is there a middle phase that would be? MR. GULICK: Your Honor, this is Jim Gulick for North Carolina. I think there potentially may be a middle phase, which is our -- and this is just our view of this, is that first South Carolina would have to prove by clear and convincing evidence that North Carolina by its transfers of water, or its consumption of water, as the case may be, is causing, is causing -- is actually causing or imminently threatening to cause serious, harm of serious magnitude in South Carolina. If South Carolina can meet that showing, there may be an intermediate showing, and this may be guided by somewhat -- to some extent by the scope of South Carolina's claims, which would be that if South Carolina meets that burden, North Carolina can, if North Carolina can show that the benefits of those particular transfers potentially outweigh the harm in

16 South Carolina, then it may be grounds for dismissal of the action. And a third, of course, would be that if it gets past both of those, then, of course, the Court would have to undertake to hear all of the evidence necessary to do an apportionment of the river. SPECIAL MASTER MYLES: Right. That's somewhat what struck me, in reading the reports, that the first phase might be devoted to a burden of going forward. That there might then be a consideration of the merits, the ultimate merits of whether there needs to be a remedy under the applicable test. And then third, what the remedy would be. You could have a phase devoted to the first two parts of that. In other words, it may be overlapping sufficiently on what you described as the second phase. That that might be all one phase. It may be the same issue. MR. FREDERICK: This is David Frederick, South Carolina. I think that the suggestion of a potential middle phase is actually wrapped up in how much water would be deemed to be the equitable apportionment. That's a remedy question. And those considerations of benefit really tie into how much water each state should be allocated. And that's

17 a remedy phase question, not a threshold question of whether South Carolina's entitled to an equitable apportionment. The cases that we're familiar with don't divide up these cases into three phases. They look at has the plaintiff shown the harm? And if so, what equitable apportionment is necessary in light of looking at the benefits of consumptive uses on both sides? MR. GULICK: There's some disagreement there. SPECIAL MASTER MYLES: Yeah, that sounds like a point of disagreement that we may have to resolve. There's a big difference in that, at a high level anyway. One option would be, South Carolina's proposal would be that essentially South Carolina is the only party that presents evidence in the first phase of any import that North Carolina would be just rebutting South Carolina's showing. Under the other scenario, you would have both sides presenting evidence on the issue of what you might call, for lack of a better word, liability. Probably not the right word. But entitlement. And then you would proceed to the remedial phase, so... I don't know the correct answer to that right now, but it does seem to me to be an issue that we

18 need to resolve. Maybe you all can work it out as part of the case management discussions. If not, certainly that's a little mini issue that could be keyed up for resolution, if necessary. But at the moment, skipping ahead to item 3, since we are sort of touching on that anyway. Is this an issue, this phasing and what the definition of the phases would be, something that would be discussed as part of the case management discussions and then we'll come back if there's a disagreement? MR. FREDERICK: This is David Frederick for South Carolina. First, we drafted a case management plan that we sent to North Carolina. We did that yesterday afternoon, but we've not had a chance yet to meet and confer with North Carolina to discuss it. The draft that we sent did not address substantive issues like this in the litigation but really was geared more toward procedural matters. I would suggest if the Special Master approves this idea that we confer with North Carolina, and we look at the case management plan from the perspective of how we might address this additional substantive issue that North Carolina has raised on the call and how it would dovetail with the case management plan

19 The draft, as we sent it, envisioned a two-phase litigation. And the first phase would proceed under the general outline of the case management plan as drafted with the idea being that a, you know, any necessary amendments to that plan would be made at the point where we would launch into what South Carolina envisions to be the remedy phase. But I think that it would be helpful to have a meet and confer with North Carolina on that issue. SPECIAL MASTER MYLES: To define the phases as part of the case management plan? MR. FREDERICK: That's correct. SPECIAL MASTER MYLES: Yeah, I think that's a good idea. I do. So you drafted something, I gather from your writing that you did that off of an earlier case management plan in a different case? MR. FREDERICK: That's right. When we met and conferred with North Carolina, they suggested that we look at a case management plan from a case in which North Carolina had been involved. We also looked at other case management plans in other original cases. And we drafted one that was an amalgam of what appeared to be best practices in various original cases. SPECIAL MASTER MYLES: Okay. That makes

20 a lot of sense. That's kind of what I did, too. looked at one, at least. I looked at one from another case that was on a website. Ralph Lancaster had one that I thought was very good, but I assume you looked at that one as well, That was in, I think, a case that's still pending. But that's good. I mean, think there's a lot of good prototypes out there, so... MR. FREDERICK: We did -- this is David Frederick. We did look at the one in New Jersey versus Delaware that Special Master Lancaster had issued. SPECIAL MASTER MYLES: Okay. So what's your timing, you think, on meeting and conferring on the case management, and either reaching agreement or reaching specific points of disagreement on it? MR. FREDERICK: Well, we're available whenever North Carolina would like. I would assume that we could have a meet and confer early next week if that's convenient for North Carolina counsel. MR. BROWNING: This is Chris Browning. We will certainly discuss the issue with South Carolina as soon as possible. We have not had a chance to discuss the draft that South Carolina circulated yesterday evening. I've had a chance to skim through

21 it and identify several issues that we need to talk about internally. And we'll certainly meet with South Carolina and discuss with them as soon as possible. Again, I've got several things on my plate the very first part of next week. So it might be more towards the latter part of the week. SPECIAL MASTER MYLES: Okay. That's great. And if issues are not agreed upon, I think we want to have an efficient procedure like we're going to do with this scope issue of tying those up, tying those up and getting a decision on them, you know. But just identify things you don't agree on. And then isolate those into some sort of communication that we can then transform into a resolution. And everything else you can just move forward on. Okay. At a minimum, we can have another report at the hearing, but I assume it will be before then that you can report back. That the parties can report back. And obviously, if the outcome of the intervention motions may -- I think what's sensible is to go forward with what you're doing. If there are -- if parties come into the case through the intervention motions, which right now is just an open issue, we may revise the case management plan as necessary to

22 accommodate those additional parties. But again, that's not -- you know, that's something that I think we don't want to wait on that, on the resolution of that. I'd rather finalize something between the parties and then if necessary reopen the discussion if there's additional parties. SPECIAL MASTER MYLES: Did someone just join? MR. GOLDSTEIN: This is Tom Goldstein, Special Master Myles. I just changed phones. I apologize. SPECIAL MASTER MYLES: I see. That's all right. Going back to Item, the intervention motions were on the calendar for today's conference. The order will come out on Monday. So we'll know at that point whether the Charlotte, City of Charlotte's motion would be referred. I expected it would, but you never know. So we'll find that out on -- on Monday. And we could just, I'll probably just make a report or people can just check the court's website. It's easy enough to find out. The other thing is the issues, the intervention motions all raise different issues. And as the date for the hearing approaches, I may have a couple of additional questions that I'd like to ask

23 before the hearing or ask people to be prepared to address at the hearing. I'm going to try to do that next week, so that if people want to submit anything in writing, they'd have the time to do that. So I just give you a heads up on that. I'll probably do that by way of a formal case management order, so that the additional questions end up being part of the record. It would be just questions raised by the briefs. Does anyone have anything on those? It's really just Items 1 through 3. I don't have anything more on those. MR. FREDERICK: This is David Frederick, Special Master Myles. On the intervention motions, do you contemplate taking them up in a particular order? SPECIAL MASTER MYLES: That's a very good question. The answer is no. But I don't object to doing so in a particular order if anybody has ideas. I hadn't thought about the order. I could do them in the order in which they were filed. That would be a fair way of doing it. MR. PHILLIPS: This is Carter Phillips from Duke. That's fine. I don't even know precisely what the order was in which they were filed. SPECIAL MASTER MYLES: I don't know either

24 MR. PHILLIPS: We'd be happy to do that. SPECIAL MASTER MYLES: I know that Charlotte's was filed last, that's all I know. MR. PHILLIPS: I remember that part as well. SPECIAL MATER MYLES: I honestly don't have a view on that. If it would help people to prepare, and if I end up forming a view, I'll try to communicate that as part of these questions that I ask. If it would help people, just to be prepared. Special Master Myles, this is Tom Goldstein. One suggestion would be that there is one threshold argument that South Carolina has raised in opposition to the motions to intervene. And that is simply the permissibility in an equitable apportionment case of really anyone intervening at all who's not a govern. And it might well be that it would be helpful to get argument on that question from one of the lawyers for the intervenors if they can agree on that or resolve that through argument. Just so you aren't having to hear the same points over and over and over. SPECIAL MASTER MYLES: That's a very good point. I actually did that in that case I had where we had a case, an issue was resolved here in California by prop -- what we call Prop, it had to do with the standing requirements for unfair

25 competition claims. And the proposition elevated the standing. And we had, I think, about 30 cases argued at the same time by the conflicts judge in Alameda. And he said, "Well, one person should argue the common issue," because there was really one common issue. And then -- it worked out very well. Because obviously, he didn't want to hear, you know, 30 iterations of the same legal point. So I don't -- I think that would be fine, if you all want to agree on a spokesman for that, for the common issue of, I guess it's really two issues. One, whether intervention is permitted in equitable apportionment cases. And two, if so, what are the general criteria for intervention that would apply? I suppose -- MR. FREDERICK: This is David Frederick, Special Master Myles. May I suggest that the three proposed intervenors speak first and make their case for their intervention. And to the extent that there is overlap in their presentations, that they work out in advance how they want to do that. And that I'll be representing South Carolina at the hearing, and would propose to address the three motions in one presentation rather than be like a Jack In The Box popping up and down on each motion. I

26 think it would be more efficient to handle it that way as there are overlapping legal issues. And then, you know, counsel for each of the proposed intervenors can make their special arguments as to why their proposed intervenor stands in special category. But then they won't have to repeat the arguments that might have been made by counsel just before them. SPECIAL MASTER MYLES: What are the intervenors thinking about that? MR. PHILLIPS: This is Carter Phillips for Duke. That makes eminent sense to me, frankly. MR. GOLDSTEIN: This is Tom Goldstein for Catawba River Water Supply. That makes perfect sense and that lets you not have to worry about how the would-be intervenors are going to resolve among themselves dealing with the common issues. There will be little complications that I would think we can resolve through common sense about rebuttal and the like. But my hope is that this will all -- that seems a really sensible beginning framework. SPECIAL MASTER MYLES: Yeah. I mean, I think everybody would have to have their own chance at rebuttal. And yeah, I think that could be worked out

27 What about MR. BANKS: This is Jim Banks for Charlotte. We think that's a good plan as well. SPECIAL MASTER MYLES: So what makes sense for me is for you all to work out, if possible, the order, if you can. And then otherwise, I'll just decide what order. But actually, if you can decide what order you want to go in and it's really -- that would be your decision, the parties' decision, the intervenors decision really on how they want to present. Because they're the moving parties. So do you want to talk about that and make a decision? MR. PHILLIPS: This is Carter Phillips. We can do that. We can coordinate that without any problem. SPECIAL MASTER MYLES: Then if you do come up with an order, just let me know, so then I can prepare to go in that order, too. MR. FREDERICK: And Mr. Phillips, I'd appreciate the notification as well. MR. PHILLIPS: Yeah, I was going to share it with everybody. SPECIAL MASTER MYLES: Yeah. Okay. Anything else about intervention? We have the same courtroom we did before. We'll have

28 a court reporter. This is kind of like setting up shop across the country. But I think everything's in place. It's the Tan courtroom. And I don't know, you know, my main goal is to get through the intervention. If we can put the other issue on, you know, I think we should prepare to do that. But if it ends up not being possible, then we can just deal with the phasing issue later. But for tentatively we'll have it on calendar for that day. I think we also have a case management conference on that day. But given this conference, I'm not sure how much is going to be needed. I mean, we could do a status update, but I don't think we'll need much more than that. Depending on where the case management plan is. Anything further on intervention? Okay. MR. FREDERICK: Actually, this is David Frederick. I have a question whether North Carolina is going to participate in the argument. MR. BROWNING: We do not intend to address anything at the -- with respect to the intervention issues unless the Special Master would be benefited if something arises and a question is posed for North Carolina. SPECIAL MASTER MYLES: Okay. There certainly

29 may be factual questions posed, if nothing else, so okay. That's helpful. You'll be prepared to answer questions, in other words. MR. BROWNING: Yes. SPECIAL MASTER MYLES: Okay. Anything else on that? Then I have the next item is the website, which I am told by my latest report will be up and running, again by the latest report, tomorrow. But this was a report I got about a week ago. I'm trying to get an update. But if this WebMaster report is accurate, then we should be up and running very shortly. I'm just going to see if there's -- here's an additional update. Let me just see what it says. They're reviewing the functional prototype this afternoon. I don't know what most of this stuff means. But -- well, he doesn't give me a time update, but it sounds like they're pretty far along. So it sounds like they're going to still be on target to have it implemented over the weekend, and hopefully it will be online next week. So I'll let you know. MR. PHILLIPS: Special Master, this is Carter Phillips. Will this be accessible on the Munger Tolles, or is that -- SPECIAL MASTER MYLES: That's what they're

30 planning on doing. Yeah, that's the plan. MR. PHILLIPS: Okay. SPECIAL MASTER MYLES: And it may be the only way of doing it. I tried to get it kind of off site. Because I don't think it really relates to Munger Tolles, you know, in any direct way. But I know that Ralph Lancaster has his on his law firm website and it works fine. I just -- if I can get it to be sort of link to an offsite, that's what I asked them to do. But it may well end up being under Munger Tolles, because that's the only way they could functionally do it. But it should be separately styled. I mean, won't -- it won't be, it won't have the appearance of being a Munger Tolles document, I don't think. You may just have to go through the website to get there. MR. PHILLIPS: Right. That's what I assumed, but I just wanted to clarify it. SPECIAL MASTER MYLES: Yeah. It will be very helpful. I find the website model very helpful to just be able to click on the document, get a pdf of every document in the case. So we're -- what I -- the instructions were to download everything that had been previously filed in the case. And then on an ongoing basis, including the transcripts, those will all be

31 downloaded as they come in, including things like the letter brief. I just think it's important to have all of that stuff as part of the record. The reports that you all did these past few days. So I'll issue a status on that as soon as we have it up and running. And finally, the service list. I apologize for any errors in the transmissions. I think there was a failure to communicate Mr. Frederick's service list, so we did err in one of our communications. But I'm going to have Ms. Nichols circulate to counsel what is now the current version of the service list, which should also reflect the current version of the service list. So that everybody can let me know if there's any additional issues or changes to it. We should do that probably today. And that is all I have. MR. FREDERICK: Special Master Myles, may I ask kind of a mundane housekeeping question in relation to the briefs that you would like us to file next week? Given that they will be linked for presumably by title on the website, what would you like us to call these briefs? SPECIAL MASTER MYLES: That's a good question. It's not a motion

32 MR. FREDERICK: May I propose that we simply do this as a brief in response to a case management order, I guess whatever the latest one was, or one that you might issue today just directing the parties to brief by a certain date? And that we simply call these briefs in response to case management order number whatever? SPECIAL MASTER MYLES: Yeah, I think that makes sense. What we might do is I will issue a case management order directing the filing of the briefs per the schedule we agreed on today. They could be styled what you just said brief in response to case management order number, or whatever it is, regarding scope. Regarding scope of pleadings. Or something like that. So then at least we can identify what the subject matter is. MR. FREDERICK: Thank you. SPECIAL MASTER MYLES: I think that makes sense. Okay. Anything else? We should set another call like this. I don't think -- do we have one set? I think we had tried to do it roughly on the th of each month, and we moved this one to the 1th. Looking ahead. We have the conference on the th. We could shift it to the end of the month. I'm not

33 sure we need a conference mid month in April. MR. FREDERICK: Special Master Myles, may I ask whether the -- whether Special Master envisions having the proposed intervenors on all of these calls, or will there be a streamlining of that once the intervention motions are ruled upon? Because I presume, based on conversations with proposed intervenor counsel, that they will be interested in maintaining some interest as amici. But I don't think on behalf of South Carolina that it would necessarily be appropriate just for amici to be participating in these case management calls. SPECIAL MASTER MYLES: Well, it seems to me that issue should await resolution of the intervention motions. As long as the intervention motions are pending, it seems to me that issues regarding those motions are likely to arise in these calls. And therefore, the calls should be opened to all parties or punitive parties. If -- if the resolution of the intervention motions is against intervention, then I suppose we can deal with that when it arises. And it may well be that there may be calls where if those same parties wish to be amici that amici would not be invited to join the calls

34 But I think that's sort of off into the future. I think so long as there are intervention motions pending, I would think all parties or punitive parties would be on the call. If they wish to be. Obviously, nobody, I wouldn't think those parties need to be on the call unless they have, unless there's something that will affect them. I think the parties need to be on the call. So I guess I should divide the world into parties and nonparties for that reason. I don't think there's any mandate that intervenors appear on all of these calls. But while the intervention motions are pending, they certainly are welcome to. So back to the issue of the next call. Shall we say, does the Friday work well for people? This works reasonably well for me. Friday mornings. We could do Friday the 5th, which is about one month after the hearing we're having. MR. BROWNING: This is Chris Browning. Generally, Fridays work well for North Carolina in terms of scheduling. The April 5th is a conflict for both myself and Mr. Gulick. So if it were your pleasure to set the conference for the 5th, someone else from our office will attend the conference call. SPECIAL MASTER MYLES: The th would also be

35 fine, if that would work for people. MR. BROWNING: This is Chris Browning again. That works for North Carolina. MR. FREDERICK: This is David Frederick. And that's fine for South Carolina as well. SPECIAL MASTER MYLES: Okay. Why don't we set / :00 a.m. Pacific time, 1:00 p.m. Eastern for the next conference call. I do think that we should at least tentatively plan to do the same thing we did today with having status reports sent a couple days in advance of that. So like on the nd. I found the status conference letters to be very helpful. I also think it gears people up to resolve things that are unresolved as of that moment. Even if we may have things further along on the case management plan, and there's nothing to report on the th, I think of those reports even if they're brief. So let's plan on that, too. So can people get me something by April nd? MR. BROWNING: North Carolina will have you something by that date. SPECIAL MASTER MYLES: Okay. MR. FREDERICK: As will South Carolina. SPECIAL MASTER MYLES: Okay. Good enough

36 I think that's all that I have for today. If anybody else has anything, now is the time to raise it. And I'll give you a report on the various outstanding items including the website. Thank you, Counsel. MR. BROWNING: Thank you MR. FREDERICK: MR. PHILLIPS: Thank you. Thank you

37 the undersigned, a Certified Shorthand Reporter of the State of California, do hereby certify: That the foregoing proceedings were taken before me at the time and place herein set forth; that any witnesses in the foregoing proceedings, prior to testifying, were duly sworn; that a record of the proceedings was made by me using machine shorthand which was thereafter transcribed under my direction; that the foregoing transcript is a true record of the testimony given. Further, that if the foregoing pertains to the original transcript of a deposition in a Federal Case, before completion of the proceedings, review of the transcript [ ] was [ ] was not requested. I further certify I am neither financially interested in the action nor a relative or employee any attorney or party to this action. subscribed my name. Dated: IN WITNESS WHEREOF, I have this date APR f DANA M. FREED CSR No. 0

38

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