duration and scope of litigation © photograph by natalie fobes

Duration and Scope of LitigationDuration and Scope of Litigation

© Photograph by Natalie Fobes

““Constitution” Necessary to Manage Plaintiffs’ CaseConstitution” Necessary to Manage Plaintiffs’ Case

Lead Counsel

Executive Committee

Discovery Team

Damages Team

Governmental Liaison Team

Liaison Counsel

Trial Team

PAC Team

AQSF & EQSF Administrator

Law Team

Complexity of LitigationComplexity of Litigation

Discovery Commenced in 1990

Continued through Trial

Over 1,000 Depositions/Over 2,500 Days

At least 200 Expert Depositions/Over 450 Days

• Over 10,000,000 Pages of Discovery

• Over 7,500 Filings

• Over 1,000 Motions

• Over 550 Discovery Adjudications

• Over 370 Numbered Orders

Complexity of Litigation - DiscoveryComplexity of Litigation - Discovery

• State and Federal Statutes ConflictState and Federal Statutes Conflict

• Federal Court vs State CourtFederal Court vs State Court

• Robins Dry DockRobins Dry Dock

• TAPAATAPAA

• Maritime LawMaritime Law

• Blood TestingBlood Testing

• Causation Causation

• Scientific and econometric evidence re: fisheries Scientific and econometric evidence re: fisheries

• Non-Economic damagesNon-Economic damages

• Compensatory damagesCompensatory damages

• Punitive damages Punitive damages

• Multiple appealsMultiple appeals

Scope and Complexity of Non-Discovery Motion Scope and Complexity of Non-Discovery Motion PracticePractice

Organizational and Procedural Challenges:

Tenders

Natives

Processors

Cannery Workers

Municipalities

Simultaneous State and Federal Cases

to Coordinate

Fishermen

Vessel Owners

Businesses

Spotter Pilots

Crew Members

Permit HoldersRemoval Jurisdiction of this Court

TAPAA Role in Claims Process

Direct and Class Action Plaintiffs

Multiple Categories of Plaintiffs

Mandatory Punitive Damages Class

Opt Out Classes

60 Different Plaintiff Law Firms

Landowners

Scope and Complexity of PretrialScope and Complexity of Pretrial

Witnesses: 155, including 36 Experts

Personnel Policies

Alcoholism

Seamanship

Coast Guard Rules

Fatigue

Multi-Phased Trial

Three Verdict Forms

Three Closing Arguments

Pages of Transcript: Over 7,700

Federal Trial

Innovative and Groundbreaking

What Happened

Seven Different Sets of Instructions

Two State Court Trials

Finance

Fish Biology

Fish Management

Economics

Ecology

Corporate Governance

Blood Test

Trial Exhibits Admitted: Plaintiff: 453 / Defendant: 656

Federal AppellateDecisions to Date: 18

Four Opening Statements

Punishment

Scope and Complexity of TrialScope and Complexity of Trial

Jury Was Able To Compare Exxon’s Congressional Statements

To What The Evidence Actually Showed

Scope of Issues:

First Time Entire Story Was Heard


EVOS trial within 5 years

EVOS litigation is nearly 19 years old . . . and still ongoing . . .

Typical class actions: 5.1 years

Longest Ninth Circuit common

fund case is 13 years

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

1989

Mar 24: Exxon Valdez Oil Spill

Apr 26: 26 Complaints filed in District Court

Summer: Development of individualized claims begins

Sept: Plaintiffs’ motion for class certification

Dec 22: Pretrial Order 9 outlines organization of Plaintiffs’ Case Management Team

Mar - Dec: Judge Holland issued 20 written orders

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

1989


1990 - 1994: Discovery commenced and continued through trial, producing millions of pages of documents

Sept 17, 1990 - Mar 25, 1991: Prepared and submitted claim forms to TAPL

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

1990

Duration and Scope of LitigationDuration and Scope of Litigation1990

1990 - 1994: Discovery continued through trial, producing millions of pages of documents

Sept 17, 1990 - Mar 25, 1991: Prepared and submitted claim forms to TAPL

Nov: Liability and Impact Teams established

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

1991



April: Order No. 47 - The court stayed motion practice (except for discovery matters).

June: Creation of TAPL fund determinations database by Plaintiffs--lasted several months

Sept - Oct: Preparation of first damages matrix for commercial fisheries

Nov: Compilation of individual claims database began, ultimately resulted in the POA and POD

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

1992



May: Order No. 143 - The court approved a case management plan that stayed issue-oriented dispositive motion practice except as to seven specific summary judgment motions. Exxon managed to file over 15 fact-based and legal-oriented motions for summary judgment in 1993, the first of which was a motion for Partial Summary Judgment on Claims for Punitive Damages Based on TAPAA Displacement of General Maritime Law.

Mar 1993 - 1994: Development of “All Plaintiffs’ Database”

Apr: Briefing in the Ninth Circuit re: Robins Dry Dock

May - Nov: Parties conducted expert depositions

Oct 21: Orders 158 & 159 denied Exxon’s summary judgment motions based on TAPPA foreclosing punitive damages claims and res judicata.

Oct 29: Settlement approved between Plaintiffs and Alyeska

Nov: The parties filed a Proposed Joint Trial Plan, in which Exxon identified 14 Issues of Law to be Resolved, seven concerned punitive damages, none contended that punitive damages were precluded by CWA.

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

1993



Mar 1993 - 1994: Development of “All Plaintiffs’ Database”

March: The parties filed the Third Amended Revised Trial Plan, which did not list displacement by the CWA as a legal issue in contention.

Jan: Plaintiffs responded to voluminous pre-trial motions

Jan: Solicitation for increased contributions to fund the litigation through trial

Apr 15: Final certification of mandatory punitive damage class

May 2: Phase I of the Federal Court trial began

June: The court approved the Third Amended Revised Trial Plan.

Sept 1: Close of evidence and time for judgment as a matter of law and motion

Sept 16: Phase III $5 Billion jury verdict

Sept 30: Deadline to file dispositive motions. Hazelwood filed 11 post-trial motions and Exxon filed 11 motions for a new trial and for judgment as a matter of law. None of Exxon’s motions contended that CWA displaced any of plaintiffs.

Nov: EQSF planning begins

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

1994


Jan 17: Court issued 12 orders denying Exxon/Hazelwood’s post-trial motions

Feb 7: Exxon motions to depose jurors; adjust Phase IIA verdict; and reconsider order re: chum price & UCI setnetter harvest

June 13-14: Judge Holland conducted jury interviews

July 12: Exxon motion to depose Rita Wilson & Natalie Phillips

Sep 6: Exxon motion for a new trial claiming juror misconduct & coercion

Sep - Nov: Plaintiffs’ lawyers met with claimants re: damages matrix, POA, & distribution issues

Oct: Drafting of POA begins. Exxon filed Motion and Renewed Motion . . . for Judgment on Punitive Damages Claims pursuant to rules 49(a), 58(2), and to the extent they may be applicable pursuant to rules 50(b), 56(b), 56(d), 59(a), and 59(e).

Nov: The court denied Exxon’s request to lift the stay and file its motion IIA verdict.

Nov 13: Exxon opposed plaintiffs’ motion to finalize the Phase IIA verdict

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

1995


Mar 18: Exxon motion for judgment. Seattle Seven, acting on Exxon’s behalf, objected to POA

May: POD drafting began

June 11: Order 317 approved POA & denounced Seattle Seven/Exxon scheme

June 18: Exxon motion to reconsider Court’s order re: Seattle Seven

Sept 11: Order 327 denied Exxon’s motion to reconsider order re: Seattle Seven

Sept 24: Judgment entered on $5 Billion jury verdict

Sept 30: Exxon and Seattle Seven filed joint appeal on Seattle Seven kickback

Oct 8: Exxon motion to alter or amend the judgment and filed its bill of costs against certain plaintiffs

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

1996


Jan 17: Order on Exxon’s motion to amend judgment. Time to appeal began to run

Feb 12: Exxon appealed to Ninth Circuit

Feb - Mar: Continued development of POD

June 26: Exxon filed joint opening brief in the main appeal of In re: Exxon Valdez

Sept 23: Exxon motion for a new trial in District Court, based on juror misconduct and coercion

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008


1997

1997

Jan 5: Ninth Circuit stayed the proceedings; ordered a limited remand regarding Exxon’s motion for a new trial

Mar 16: Deposition of Rita Wilson

July 31: Order 339 denied Exxon’s second motion for a new trial

Aug 7: Exxon appealed to Ninth Circuit

Sept 11: Ninth Circuit granted the motion and briefing schedule set

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008


1998

1998

Jan - Dec: Processed over 20,000 claim forms, representing over 54,000 potential claims

May 3: Oral argument heard on consolidated appeals

Week of June 28: Meetings scheduled to update claimants

Aug: Exxon appealed order re: POD

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

1999


Jan - Dec: Continued processing claim forms including over 9,000 Round II claims, representing over 15,000 potential claims

Jan 4: Response to Exxon’s appeal of the POD

Mar 16: Ninth Circuit denied Exxon’s appeal for a new trial based on alleged juror misconduct re: Rita Wilson

July 14: Exxon filed its petition for a writ of certiorari for a new trial

Oct 2: Supreme Court denied Exxon’s petition for cert

Nov 9: Ninth Circuit oral arguments re: Baker v. Exxon

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008


2000

Jan - Dec: Claims processing continued

Jan - Dec: PAC heard and resolved 650 appeals regarding final percent shares of distribution

Nov 7: Ninth Circuit vacated and remanded $5 billion punitive damages award in light of BMW v. Gore and Cooper Industries v. Leatherman Tool Group

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008


2001

Jan - Feb: Plaintiffs counsel continued work on briefing re: remand of punitive damages

June - July: State Court trial re: municipalities’ claims

July - Aug; Oct - Dec: Funds from supplemental claims, compensatory damages and compensatory interest mailed to numerous claimants

Oct 11: Oral arguments held in District Court re: punitive damages remand

Dec 9: Order 358 approved punitive damage award of $4 billion plus interest; and stated $5 billion award was constitutionally permissible

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008


2002

Apr - present: Supplemental claims, compensatory damages and interest on compensatory damages continues to be distributed; continue to process claims

June 12: Appellate briefing began to the Ninth Circuit regarding $4 billion punitive damages award

July 11: Tender claims settled short of September trial

Aug 22: Remand of punitive damage award in light of State Farm v. Campbell

Sept 1: PAC has ruled on over 1,000 appeals

Dec 3: Oral Argument in District Court re: punitive damages award

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008


2003

Ongoing: Supplemental claims, compensatory damages and interest on compensatory damages continues to be distributed; continue to process claims, estates, divorces, assignments and liens

Jan 28: Order No. 364 approved punitive damage award of $4.5 billion plus interest; and stated $5 billion award was constitutionally permissible

June 28: Exxon filed its opening brief with the Ninth Circuit

June - Nov: Briefings filed with the Ninth Circuit

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 20082004



Sept: Plaintiffs filed a motion requesting the Ninth Circuit set a date for oral argument

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 20082005



Jan 27: Ninth Circuit oral arguments on punitive damages re: Baker v. Exxon

Dec 22: Ninth Circuit’s ruling reducing punitive damages to $2.5 billion; Judge Browning dissents

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 20082006



Jan 12: Exxon petitioned Ninth Circuit for panel rehearing and petition for rehearing en banc

Mar 2: At the Ninth Circuit’s request, Plaintiffs filed a response to Exxon’s petition for rehearing or rehearing en banc

May 23: Ninth Circuit rejected Exxon’s petition for rehearing and rehearing en banc

Aug 20: Exxon filed its petition for a writ of certiorari with the US Supreme Court

Aug 29: Plaintiffs filed a conditional cross petition for a writ of certiorari

Sept 21: Plaintiffs filed its brief in opposition

Oct 1: Exxon filed its brief in opposition to Plaintiffs’ conditional cross petition

Oct 9: Plaintiffs filed its reply brief for a conditional cross petition

Oct 12: Exxon filed its reply brief in support of its petition for a writ of certiorari

Oct 26: US Supreme Court conference to review petitions to issue an order to grant or deny them

Oct 29: US Supreme Court granted in part the petition for writ of certiorari

Dec 17: Exxon filed its brief on the merits with the US Supreme Court

Dec 26: Amicus curiae briefs filed on behalf of Exxon 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

2007



Jan 22: Plaintiffs filed its brief on the merits with the US Supreme Court

Jan 29: Amicus curiae briefs filed on behalf of Plaintiffs

Feb 18: Exxon filed its reply on the merits with the US Supreme Court

Feb 27: Oral Arguments schedule before the US Supreme Court

June: US Supreme Court will issue their opinion by the end of June 2008

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 20082008


Plaintiffs’ counsel maintains regular contact with claimants via 800 numbers, local meetings, letters, and websites

Individual relationship maintained with 32,000 claimants

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003

2004 2005 2006 2007


1989 - 2008

2008

Litigation is nearly 19 years old . . . and still ongoing . . .

Still upcoming . . .


1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Oral ArgumentsFebruary 27, 2008

Supreme Court DecisionBy End Of June 2008

duration and scope of litigation © photograph by natalie fobes

Documents

discovery slide

scope of litigation

scope of litigation

complexity of pretrial

federal trial innovative

scope of litigation

pages of discovery

complexity of trial