Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 1 of 49 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CIVIL ACTION NO. VS. ) B-08-169, B-08-276, 330, 348 ) BORZYNSKI BROTHERS PROPERTIES; ) ) LEONARD R. LOOP, ET AL __________________________________) 8 STATUS CONFERENCE BEFORE THE HONORABLE ANDREW S. HANEN FEBRUARY 3, 2009 9 10 11 12 APPEARANCES: 13 For the Plaintiffs: MR. ERIC PAXTON WARNER U.S. Attorney's Office 600 E. Harrison, Suite 201 Brownsville, Texas 78520 For the Plaintiffs: 16 MR. DANIEL DAVID HU U.S. Attorney's Office 17 Houston, TX 14 15 919 Milam, Suite 1400 18 For the Defendants: MS. KIMBERLI J. DEAGEN Barron and Adler 1001 McKinney, Suite 400 Houston, Texas 77002 For the Defendants: MR. STEPHEN I. ADLER Barron & Adler 808 Nueces St. Austin, Texas 78701 For the Defendants: MR. NORTON A. COLVIN, JR. Rodriguez, Colvin, Chaney & Saenz P.O. Box 2155 Brownsville, Texas 78522 19 20 21 22 23 24 25 1 Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 2 of 49 1 APPEARANCES (Continued): 2 For the Defendants: MR. ROY R. BRANDYS Ray, Valdez, McChristian & Jeans 615 NW Loop 410, Suite 200 San Antonio, Texas 78216 Transcribed by: BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)548-2591 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 3 of 49 1 2 THE COURT: All right. 3 Be seated. This is a hearing we scheduled some time ago in B-08-169, 3 United States versus Borzynski Brothers; B-08-276, United States 4 of America versus Leonard and Deborah Loop; B-08-330, United 5 States of America versus .73 acres of land; and B-08-348, United 6 States of America versus 3.76 acres, which is the Whitewing 7 Ranch Limited Property. 8 9 And we have the same individuals representing the landowners, Ms. Deagen? 10 MS. DEAGEN: 11 THE COURT: 12 13 14 MS. DEAGEN: Why don't you introduce I have Norton Colvin with me, Steve Adler and Roy Brandys, all representing the landowners. THE COURT: 16 MS. DEAGEN: 17 THE COURT: 18 MS. DEAGEN: 19 THE COURT: 21 You and whom else? the folks at your table. 15 20 Yes, we do, Judge. Roy? Roy Brandys. Brandys? B-R-A-N-D-Y-S. Okay. All right. And for the government, Mr. Warner, who all is with you? MR. WARNER: Your Honor, I have with me today, of 22 course, Daniel Hu, the Assistant Chief for the Civil Division. 23 And then on B-169, which is the Borzynski matter, Your Honor, I 24 have with me John Smith, who will be my co-counsel in that case. 25 THE COURT: All right. Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 4 of 49 1 2 MR. WARNER: 4 And then also we have Ernest Burford, who is on, I think, another case that may have been set for today. 3 THE COURT: Okay. All right. I want to talk a little 4 bit generally. 5 were talking about consolidation. 6 theme that we were looking at. 7 that I mean from both sides of the fence, have been running away 8 from trial settings, which is not normally something I complain 9 about. 10 11 I mean, basically when we first set these, we Since then, people -- and by In fact, it's usually something I encourage. And primarily I'm interested -- most interested in the Borzynski case. 13 going to go to trial in March? Is this -- are we actually thinking this is MS. DEAGEN: I mean realistically. We are not running away from a trial 15 setting, Judge. 16 going to go in March. 17 happened in the last half hour or so. Our intention was that this was absolutely 18 THE COURT: 19 MR. WARNER: 20 21 And so let me take -- let me take these one at a time. 12 14 I mean, that was the pivotal Mr. Warner can fill you in on what's Well, I do have an amended complaint here. Yes. As of this morning, Your Honor, I have made a mess of the Borzynski case. Your Honor, part of the whole fast tracking that these cases 22 ended up having as part of the Congressional, I guess, statute 23 that was passed required us to kind of, I guess, essentially 24 work backwards from the way a normal condemnation would have 25 been done. And so as a result, we did not have title evidence Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 5 of 49 1 2 5 in these cases until sometime after Christmas. And then we had to go analyze the title evidence and try to 3 figure out, because Rule 71.1 requires us to join as parties all 4 people that we know have an interest or may claim an interest in 5 the land that's been condemned. 6 And so what we've been doing and what finally came down 7 today was the analysis of the title information. 8 result of that analysis, we have discovered eight new parties 9 who may have an interest in terms of the water rights which have 10 And as a been acquired by the United States as part of its taking. 11 And so what is included, Your Honor, in the amended 12 complaint and the amendment to the declaration of taking is 13 essentially Schedule CC, which is the description of the 14 property, has now been amended to reflect the metes and bounds 15 surveys that were given to the other side last fall. 16 17 THE COURT: MR. WARNER: 19 THE COURT: Okay. I'm looking -- instead of at CC, I'm looking at GG, the new parties. 21 MR. WARNER: 22 THE COURT: 23 MR. WARNER: 24 THE COURT: 25 Let's back up a minute because I need some explanation here. 18 20 Let me -- hold on. Yes, Your Honor. Because obviously that's -That's --- perhaps of the most concern with regard to any kind of trial schedule. Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 6 of 49 1 MR. WARNER: 2 THE COURT: 6 Yes, Your Honor. And help me here. Let's pick one. 3 pick City of Laredo, because that seems to be the most 4 attenuated one. 5 if I have property, a finite piece of property here in 6 Brownsville, Texas? 7 MR. WARNER: Let's Why do I have to worry about the City of Laredo The City of Laredo had water rights 8 documented through a deed that we've noted there was at Volume 9 8779 at page 1. 10 THE COURT: 11 Borzynski property? 12 MR. WARNER: 13 THE COURT: 14 MR. WARNER: Through -- water rights through the Yes, sir. Really? Yes, sir. And so as a result -- and 15 that's -- if the court looks on GG, we've actually stated with 16 each new party that's out to the side what it is that makes them 17 need to come in, whether it's a deed or if it's the Brownsville 18 Irrigation District. 19 part of an irrigation district. 20 these claims have not been extinguished; or, you know, they 21 haven't been finally put to rest. 22 This -- I believe this property is now But in researching our titles, And so we've got a bunch of parties out there now, eight 23 parties, one of which is the Nature Conservancy that completely 24 caught me by surprise this morning, who apparently have an 25 interest or could claim an interest at this point, given the Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 7 of 49 7 1 status of the deeds in the water rights that have been taken as 2 a result of our taking. 3 took the water rights as well. 4 THE COURT: We took -- when we took fee simple, we Let me ask you this: And this may show my 5 ignorance of water rights, and I'll readily confess it, so I 6 have no pride of knowledge of this. 7 flowing in some direction by the Borzynski property. 8 the fence, wall, whatever we want to call it, running actually 9 some distance from the water in this area, because this is the We've got the river that's You've got 10 area we've been out at. 11 river, it's a strip of land that's not contiguous with the 12 river. 13 mean -- 14 15 I mean, it doesn't touch the river, it doesn't -- I MR. WARNER: The land that we've condemned, you're talking about? 16 THE COURT: 17 MR. WARNER: 18 THE COURT: 19 have water rights? 20 And while it roughly parallels the MR. WARNER: Yes. I mean, if I'm wrong, tell me. No, that is correct, Your Honor. Does that land that never touches the river Yes. I mean, it's -- it goes -- the water 21 rights go with the entire piece of land or the two separate 22 sections that were bought that now make up the larger parcel. 23 The water rights run with all the land. 24 there are water rights, they run with the land. 25 THE COURT: Okay. To the extent that And so you're -- I mean, what have Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 8 of 49 1 you condemned? 2 and you've condemned 20 of the acres. 3 thousandths of the water rights? 8 If it's -- let's say it's a thousand-acre ranch Have you condemned 20 4 MR. WARNER: I guess, yeah, that's -- 5 MS. DEAGEN: You would have condemned 20 acres of water 6 rights. 7 So in this particular case, they're taking 1.16 acres. 8 of the 460 acres, they would be condemning 1.16 acres of water 9 rights, if the property had water rights, which our information 10 They're quantified in terms of acres of water rights. So out is it does not. 11 THE COURT: Well, how -- I mean, do -- if there are 12 water rights, I mean, every one of these pieces of property 13 would have water rights? 14 MR. WARNER: That is correct, Judge. And unfortunately, 15 to be the bearer of bad news for the court today, we anticipate 16 that a majority of the cases that have been filed, however many 17 there are, 278 or however many there are, the majority of them 18 are probably going to have to be amended, depending on water 19 rights or additional creditors who have now been discovered or 20 whatever the case may be, and so this is going to be an ongoing 21 process. 22 we're headed for trial. 23 I just happened to get Borzynskis fast tracked since THE COURT: Well, tell me, Ms. Deagen, how can I go to 24 trial if there are ten other people that have an interest in 25 this land? And I use the word "interest" advisedly, but -- Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 9 of 49 1 MS. DEAGEN: 9 Well, I believe, Judge -- I think in 2 reality what you're going to find is once these parties are 3 brought in -- and I understand Mr. Warner's argument that he is 4 required to bring them in. 5 expectation is you're going to see disclaimers from every single 6 one of these folks in the next couple of weeks or however fast 7 we work to find these guys and talk to them and get disclaimers 8 of interest. 9 going to happen to these. 10 Once they're brought in, my That, as a practical matter, is what I think is How could we go to trial? This landowner, the Borzynskis, 11 the landowner that we represent, is not going to be making any 12 claims to any property rights that these folks may have a right 13 to. 14 water rights into the irrigation district. 15 exchange to become part of the irrigation district, and he did 16 that years ago. 17 This property, my client traded in his property rights, his You can do an So from our perspective, I understand that it shows up on 18 the government's title search, but I think these are red 19 herrings at this point. 20 clarify that, but I don't think any of these people or entities 21 are going to end up with any rights to be asserted in this 22 action. 23 trial, and the only thing the government would have to do if 24 they discovered that these folks had some property interest here 25 that they were condemning is file another condemnation action I understand that we need to maybe And we could go forward on the Borzynski rights at Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 10 of 49 1 10 and include these entities. 2 THE COURT: 3 MR. WARNER: I was going to respectfully disagree, Your 5 MS. DEAGEN: That's the technical answer. 6 THE COURT: 7 MS. DEAGEN: 4 No, that's not going to work. Honor. You're just multiplying my 288 cases by ten. I agree. And I think Mr. Warner and I have 8 discussed maybe some options, and we might be able to work 9 through some things by agreement and still not put our trial off 10 quite as much. 11 12 THE COURT: Well, here's -- let me think out loud with you for a minute. 13 MS. DEAGEN: 14 THE COURT: Okay. Let's set aside this problem for a minute 15 because I think you're probably right. 16 these people will file disclaimers saying: 17 anything about this. 18 Sold it years ago, didn't retain any interest, whatever. 19 20 Don't own it. I mean, I think a lot of I didn't know Didn't intend to own it. Now, of course, are you having these people served, Mr. Warner? 21 MR. WARNER: Judge, I'll have to have them personally 22 served as opposed to waivers because at least personal service 23 gives them 20 days, and at least we're trying to cut down the 24 time. 25 THE COURT: I mean, even with 20 days, that puts us Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 11 of 49 1 2 11 beyond when I was thinking we'd be picking a jury. MR. WARNER: Sure. Well, that's -- because of this, I 3 had filed an opposed motion to continue the trial setting or at 4 least the jury selection. 5 Ms. Loessin. 6 and propose to you a way to stretch out some of the deadlines 7 that the court had set in Borzynski and still try to keep the 8 trial in March. 9 to the approval of the court. 10 But I have been talking with Judge, we had initially planned to come here today That was our initial plan, subject, of course, However, with this happening, that's not possible. What 11 we're trying to do is still see if we can try Borzynski and 12 Loop, depending on whatever the court is going to do on the 13 consolidation issue, in May. 14 call on April 28th, and it seems to me that if -- and, 15 Ms. Loessin, if I say something wrong, let me know. Right now Loop is set for a docket 16 MS. DEAGEN: I will. 17 MR. WARNER: But it seems to us that if the court were 18 to put Borzynski's case on that same trial track, the experts in 19 both cases are the same experts. 20 have -- you know, it will be different because of the land, but 21 at least we think it's viable at this point, Your Honor, that we 22 could try both of these cases in May, subject to the court's 23 calendar and availability. 24 THE COURT: 25 Granted, they're going to But I take it the government -- you're going to oppose me consolidating them? Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 12 of 49 1 MR. WARNER: 12 Your Honor, at this point we have filed an 2 opposed motion for consolidation in Loop. 3 Ms. Loessin is pushing anymore for Borzynski to be consolidated 4 with the Loop properties. 5 MS. DEAGEN: 6 THE COURT: I don't think that That's true. Of course, one of the reasons she's doing 7 that is because she's got a March trial setting. 8 pretty self explanatory. 9 trial setting. 10 MR. WARNER: I mean, that's She consolidates it, she loses her Judge, part of the thing in Loop, and I 11 hate to combine here, but just so the court understands. 12 the things that has to be determined in any of these cases is 13 unity of title. 14 trying to figure out unity of title, and we filed an opposed 15 motion. 16 Ms. Loessin obviously needs a chance to respond. 17 apologize that we didn't have that ready at least until 18 yesterday, but -- 19 20 One of And in the Loop case, at this point we're still Of course, we don't want to argue this today because THE COURT: And I Let me -- let me talk to you a little bit about that. 21 MR. WARNER: 22 THE COURT: All right. Because I don't want -- Mr. Warner, I want 23 you and, quite frankly, I guess the landowners could be -- get 24 in the same box. 25 considered the parent tract, what's not the parent tract, and I You're worried about what is going to be 13 Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 13 of 49 1 understand why. 2 that I think will resolve. 3 we're going to face that. 4 That is a problem, I admit, but it's a problem Regardless of consolidation or not, I'm looking at consolidation a different way, and that's why 5 I'm telling you this, just so you know. 6 consolidation just as procedural matter, quite frankly. 7 MR. WARNER: 8 THE COURT: 9 I'm looking at Okay. Can I consolidate? Does it make sense? Now, there's a little bit of slop over, if you will; and that 10 is, will the arguments, you know, unity of ownership, unity of 11 use, contiguousness or whatever the elements are that the 5th 12 Circuit has set out for us, I won't want to consolidate cases 13 that at least one side or the other convinces me that will 14 confuse those issues. 15 could -- at least intellectually I think we could try two, three 16 totally unrelated pieces of property in the same lawsuit. 17 mean, you'd have different experts testify about different 18 property and you'd have the jury decide. 19 that theoretically. But separating that, I mean, I think I I And I'm just saying 20 And the reason I'm saying all this is because I want y'all 21 to realize I know you're worried about the legal and technical 22 aspects of trying this, and you need to be. 23 being paid for. 24 for both sides need to worry about. 25 cents so you know that I'm also worried about trying these cases That's your job. That's what you're That's what you as lawyers I'm just throwing in my two Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 14 of 49 14 1 and getting them tried in some kind of semblance where the 2 landowners don't feel like they've been put off until, you know, 3 the year 2020, and consolidation is one way of doing that. 4 Now, I'll also tell you some of my thinking is that I'm less 5 likely to consolidate some of these early cases, you know. And 6 it's one of the reasons that I -- quite frankly, I was hoping 7 Borzynski was going to go because it's a nice -- well, until I 8 got this, it looked like a nice, simple piece of land. 9 try it, you know, one side against the other, mano y mano or Let's go 10 whatever, and let's go do it and get one under our belts, so to 11 speak. 12 that some of the others might have. 13 And it wouldn't have some of the complicating factors I interrupted you, Mr. Warner, but I wanted you to realize 14 that while I understand the unity of ownership and the unity of 15 use and those arguments, that I don't necessarily see those as 16 preventing consolidation unless I think it's going to confuse 17 the jury so much so that they can't follow the testimony and 18 make separate decisions as to whatever piece of property that 19 they're faced with. 20 MR. WARNER: Well, and certainly, Your Honor, in past 21 projects that have had numerous tracts, you know, there has been 22 consolidation of multiple cases where the land was similar or 23 they had similar issues and things like that. 24 certainly can't sit here and tell the court that I -- I don't 25 think that's a viable option. So, I mean, I I don't know at this point with 15 Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 15 of 49 1 the Loops and Borzynskis in terms of just trying them all 2 together if that's viable, but -- and the only reason I say 3 that, Your Honor, is they're -- the Loops are going to 4 probably -- at least one of the Loops may be a witness in 5 Borzynski, and yet they're the main witnesses in their own case, 6 and they're tenant farmers in one, but they own the land in the 7 other. 8 mean, maybe they can, Your Honor, and they can figure all that 9 out, but I'm certainly willing to explore that. And, I mean, can the jury keep all that straight? 10 THE COURT: 11 MR. WARNER: I I may give juries more credit than you do. I understand, Your Honor. It's just that 12 the Loop -- the Loop -- obviously in the Loop case, Your Honor, 13 the court will have to decide prior to the trial -- certainly 14 one of the things the court is going to have to rule on legally 15 is unity of title so that -- because that's a question of law, 16 not a question of fact, and so that's one of the issues. 17 And then there's some other highest and best use issues that 18 we believe the court is going to have to rule on before these 19 cases can get presented to a jury. 20 And so in light of that, I mean, I'm certainly -- I'm 21 telling the court I'm certainly willing to look at the 22 consolidation issue. 23 court sees some of the motions we've filed if the court will 24 still feel the same way. 25 THE COURT: I just don't -- I don't know once the Well, and I may not. As I said, if I don't Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 16 of 49 16 1 think the jury can separate the evidence, I'd rather just try 2 them -- I mean, what we may have -- I don't see these being long 3 trials. 4 MS. DEAGEN: 5 THE COURT: Nor do we. I mean, I see them being two or three day 6 trials. 7 case. 8 than one four day trial that I end up with a mess trying to 9 submit it to the jury. 10 Maybe it's just me, but I see we're trying a one issue And I'd much rather try back to back three day trials MR. WARNER: Well, we're -- the way the United States is 11 looking at this, Your Honor, is that they're probably four to 12 five day trials. 13 even we initially thought as we got into these. They're a little bit more complicated than 14 THE COURT: 15 MR. WARNER: 16 THE COURT: Tell me -But certainly less than a week. Explain that to me. I want to -- tell me 17 why that -- I mean, tell me why. You've heard me say this 18 before. 19 an appraiser on the other. 20 the jury is in the box. 21 I won't say obviously, but I would assume is going to get up on 22 the stand and say: 23 and this is what it's worth, and this is what we do with it 24 and -- okay. 25 beyond that what we have. I mean, we've got an appraiser on one side, we've got We've already picked the jury, so The landowner obviously is going to -- Hey, I've lived on this land for 20 years, Maybe a neighbor or two, but what -- tell me Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 17 of 49 1 MR. WARNER: 17 Well, Judge, it seems to me just on the 2 defendant's side of things, whatever they propose as the highest 3 and best use, the presumption, the legal presumption is that the 4 highest and best use is what it's currently being used at. 5 to the extent that the defendant may go and find a different 6 highest and best use -- it appears already in Borzynski there 7 will be additional witnesses brought in to try to support what 8 it is the appraiser is saying is now the highest and best use on 9 top of the landowner. But And then in terms of the United States, 10 Your Honor, we have an appraiser, but obviously access is going 11 to be a huge issue on top of highest and best use. 12 So to that extent, it's entirely possible that the defendant 13 calls the IBWC as a witness or the United States calls them. 14 It's entirely possible the United States calls some 15 representatives from Border Patrol to talk about the access and 16 gate issues as the United States goes to support its own 17 appraiser's opinions. 18 THE COURT: 19 MR. WARNER: Okay. So there's going to be some side witnesses, 20 Judge. 21 us along, then we're going to go quicker, but there's more than 22 just two or three witnesses. 23 I mean, obviously if you're cracking the whip and moving MS. DEAGEN: And I agree with Mr. Warner on that, and we 24 would expect three or four day trials, particularly if we 25 already have jury selection out of the way. Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 18 of 49 1 THE COURT: All right. 2 example. 3 like the cabbage kings. 4 18 Let's take Borzynski, for What are the -- I mean, I thought the Borzynskis were MR. WARNER: Is that not the highest and best use? The defendant's appraisal report has gone a 5 different direction than irrigated farmland, Your Honor, so they 6 have found a different highest and best use. 7 now that's going to necessitate witnesses in addition to their 8 appraiser to come in. 9 challenge that and try to back up their appraiser's report, And so of course And to the extent that we are going to 10 which, of course, leads to other rebuttal witnesses, and so -- I 11 mean, in the end, I honestly think the court is probably looking 12 at about a four day trial. 13 MS. DEAGEN: On landowner's side, Judge, we expect four 14 or five witnesses in our case in chief if that helps, the 15 primary one obviously being our appraiser. 16 MR. WARNER: Your Honor, I also think that these 17 appraisers themselves could probably end up going the better 18 part of a day. 19 looked at some of the issues that are coming up and the way they 20 prove it with comps and trying to prove that up to a jury, I see 21 the appraisers as substantial witnesses in terms of time in the 22 trial. 23 I mean, I haven't tried one yet; but having THE COURT: Those I figured would be. 24 they were the key witnesses. 25 landowner's testimony may be important. I mean, I assumed And, I mean, certainly the But, I mean, a lot of Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 19 of 49 19 1 these landowners don't even live on the property and they only 2 visit it occasionally or whatever. 3 live on there, certainly their testimony will be very important, 4 but a lot of it will be done through appraisers. 5 All right. So, I mean, the people that Ms. Deagen, Mr. Warner just said that he expects 6 me to rule and, I guess, pretrial, in some form of motion on 7 highest and best use. 8 9 MS. DEAGEN: Do you agree with that? No, not necessarily, Judge. I mean, I don't know what Mr. Warner plans on filing on the government's 10 behalf, but it is not unusual that two real estate appraisers 11 looking at the market data, looking at the subject property 12 would come to a different conclusion as to highest and best use. 13 It happens all the time. 14 the jury to decide at that point. 15 THE COURT: 16 perplexed. 17 accomplish today. Okay. It's a credibility issue. All right. It's for Now I'm a little I had a -- kind of an agenda of things I wanted to 18 MR. WARNER: 19 THE COURT: I apologize, Your Honor. And I've been thrown a little bit of a curve 20 ball here. 21 was mentioned in the deadlines was to set off non-dispositive 22 motions. 23 What motions? I know that one of the things that What motions were we thinking about? MR. WARNER: Your Honor, there's -- I anticipate that 24 the United States in Borzynski will file at least -- at least a 25 couple of motions to strike or essentially Daubert challenges on Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 20 of 49 1 at least a couple of the experts that the other side has 2 declared. 3 20 And then in addition to motions in limine and also, you 4 know, maybe motions to strike certain portions of an expert's 5 opinion based on a Daubert style challenge. 6 just -- we've got to get motions filed. 7 fortunately, depending how the court looks at it, we are working 8 with each other, but we're all still deposing witnesses in 9 Borzynski. I mean, there's And unfortunately or Right now our discovery deadline by agreement, I 10 guess subject to the court saying yes or no, is the 20th of 11 February. 12 main reason that I had filed the motion to extend the 13 non-dispositive motions is because we are still in the process 14 of deposing people. 15 18th, Your Honor. 16 their appraisal expert. 17 two experts before that. And so that was the reason. 18 THE COURT: 19 MR. WARNER: That was probably the We're going to depose their expert on the One of their experts, their main expert, We're trying to find dates on the other Okay. And, of course, because of that, the 20 pretrial order that's currently set for the 13th, part of our 21 plan was to come in here and talk to the court about extending 22 the pretrial order for us so that -- just so that we could 23 finish our depositions and then get together and really kind of 24 get down to the nuts and bolts on what we can agree on, what we 25 can't agree on, and get our motions filed at that point too. Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 21 of 49 1 THE COURT: All right. 21 Well, let's talk realistically. 2 I don't even see you being able to get disclaimers by the time 3 to go to trial in March. 4 5 MS. DEAGEN: I mean, do you, Ms. Deagen? I think we can, Judge. I mean, I just now looked at this list and have just now gotten the title report. 6 THE COURT: I mean, there's three people from the 7 Armstrong family, it looks like, which are maybe what, former 8 landowners? 9 MS. DEAGEN: 10 11 THE COURT: City of Laredo. 12 13 14 15 Going pretty far back. You've got Cameron County. You've got the You've got the irrigation district. MS. DEAGEN: case. I believe so, yeah. Nature Conservancy is our client in another I'm pretty sure I can deal with them. THE COURT: And the South Loop Growers, is that the Loop family? 16 MS. DEAGEN: That is a portion of the Loop family, yes. 17 MR. WARNER: Judge, I understand that she's operating 18 under the presumption that they will probably disclaim; but, you 19 know, we don't know what's in the ground out there on this 20 strip. 21 along there. 22 our fence may affect some sort of a pipe that maybe the 23 Brownsville Irrigation District has or something like that, 24 Judge, I just -- I would caution the court in thinking that we 25 will get disclaimers on all of these quickly. I mean, we already know pipes have been going in lately What is in the ground? I mean, to the extent that That may very Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 22 of 49 22 1 well be the case, but I cannot stand here today and represent 2 that to the court. 3 THE COURT: Well, I was actually worried about -- more 4 worried about something like the City of Laredo. 5 getting the wheels of bureaucracy to turn fast enough on 6 somebody that's -- you know, that has authority to sign off will 7 take four motions in front of the city council and, you know, a 8 city attorney to sign off on it, and he's not going to want to 9 do it and -- 10 MS. DEAGEN: I mean, just Judge, recognizing that there is going to 11 be a delay in getting this done, even if ultimately they do all 12 end in disclaimers, Mr. Warner and I discussed perhaps something 13 that we could agree upon, subject to the court's approval, and 14 that would be moving the Borzynski case to the same setting as 15 the Loop case or cases, depending upon what happens 16 consolidation-wise with that. 17 work out the needed deadlines and the agreements that we need to 18 get us there. 19 THE COURT: And then I think Paxton and I can Mr. Warner, how did you come up with this 20 list? 21 you have a title company do a title search? 22 And I'm talking about the interested parties in GG. MR. WARNER: A title company, yes, Your Honor. Did A title 23 company went and essentially gave us their opinion and showed us 24 who had the interest. 25 traced those deeds to figure out who still may have had an We then took and tracked that down and Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 23 of 49 1 interest and who did not. 2 how we came up with these. 3 4 5 23 And so that's -- ultimately that's But, you know, Your Honor, I'm not a -- I'm not a title attorney, and so it took -THE COURT: No, I just want to know the process because, 6 of course, it occurs to me that we're going to have this same 7 problem in every case. 8 MR. WARNER: 9 THE COURT: 10 11 We are, Judge. And that we need to start resolving this problem now. MR. WARNER: We are working on that, Your Honor. Part 12 of what we had to resolve was the taking, the fee that we're 13 taking, which has also been amended. 14 Honor, is -- and in terms of Loop, if this is what the court's 15 concern is, is I've confirmed that given that Loop is 16 essentially the next trial on the court's calendar, as I see it 17 right now, we can fast track that and get that amended DT and in 18 time so that I'm not up here on April 28th doing this same 19 motion before the court. 20 21 22 THE COURT: But the other thing, Your Well, I'd like you to do this -- we have cases set in -- Alex, in June too? MR. WARNER: I was going to say, I think the court has a 23 May 28th docket call, I guess, for June cases? 24 recollection? 25 Okay. THE COURT: Was that my So -How long will it take you to do this same 24 Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 24 of 49 1 kind of research for all the May cases and all the June cases? 2 And I'm looking at my May docket right now, and it looks like 3 the May cases are just right now the three Loop cases. 4 MR. WARNER: In terms of being tried in May? 5 MS. DEAGEN: In terms of -- 6 THE COURT: 7 MR. WARNER: Yeah. Yeah. Okay. I agree. That's it, Judge. 8 It's just those three Loop cases that I know of from looking at 9 the records and the dockets. 10 THE COURT: All right. Well, I think we're going to 11 have to put this off until May. I just don't see any way around 12 it. 13 talked out of this, but I just -- my current thinking, and I'm 14 giving you a head's up, is I still will probably take the 15 Borzynski case first and try it by itself. 16 or may not consolidate. 17 it. My inclination in putting this off to May, and I can be And the Loops I may We'll cross that bridge when we get to 18 But I really do think we need to get these cases tried, and 19 I'm not -- I just don't want them lingering out there, because, 20 I mean, it really is a case of, you know, justice delayed is no 21 justice. 22 but I -- I think we need to -- we need to get these done. 23 I think after we try some of these, you know, there will be a 24 certain pattern that may help or maybe hurt, I don't know, in 25 negotiations, and some of these will start settling. And I want everybody to have a reasonable shot at it, Plus 25 Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 25 of 49 1 Okay. So do you just want to use the same Loop deadlines? 2 MS. DEAGEN: That's -- that's fine with the landowners. 3 MR. WARNER: Judge, we were trying to figure out what 4 the Loop deadlines were. 5 them now? 6 7 Oh, do I have Judge, I can tell the court right now that the Loop expert reports have been already stretched to March the 2nd, I think -- 8 THE COURT: 9 MR. WARNER: 10 I didn't have them. All right. -- which is that first day. And then did we add rebuttals in there a couple weeks later? 11 MS. DEAGEN: I believe so, yeah. 14 days after that. 12 MR. WARNER: And, Judge, I'll tell you now, I mean, it 13 just never fails. 14 saying: 15 that? 16 with the intention that we're going to trial on the date that -- 17 so, you know, subject to that, Your Honor, I think with the 18 March 2nd on the experts and then the rebuttals two weeks later. 19 20 21 Either myself or Ms. Loessin are on the phone Hey, look, we need to push this a week. Can we do So I -- but what we've always done is we've done that The only thing, Your Honor, that I -- non-dispositives by April 10th. Okay. MS. DEAGEN: Judge, could I interject one moment? I 22 just want to clarify something. Mr. Warner and I discussed a 23 couple of agreements as far as putting this off by agreement to 24 May as far as what we would do on the Borzynski case as far as 25 the current deadlines we have, the depositions we've got set. Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 26 of 49 26 1 And, in essence, the agreement was we're trucking along on this. 2 We've already got depositions on the books, and we've got a 3 discovery deadline set amongst us. 4 stick through that until the discovery deadline and then any 5 additional discovery just as to the new parties if that's 6 necessary. 7 with that, subject to an extra week on Borzynski, giving us a 8 deadline of April the 27th. 9 MR. WARNER: February. 10 MS. DEAGEN: I'm sorry, February 27th to get all the I don't see why we can't And as I understand it, Mr. Warner was in agreement 11 discovery done in Borzynski. 12 path that we're on which -- That way we don't interrupt the 13 THE COURT: 14 MS. DEAGEN: Okay. 15 MR. WARNER: Subject to that one week for discovery, 16 17 I'm fine with that. Judge, I am in perfect agreement with that. MS. DEAGEN: Which is -- we're fine with. I just wanted 18 to make sure that that was the agreement that Mr. Warner and I 19 still had in this regard. 20 THE COURT: 21 MS. DEAGEN: 22 THE COURT: All right. I'm fine with that. Okay. So Borzynski we'll put off. Basically have 23 docket call at 1:30 on the 28th and jury selection sometime on 24 the 30th of April for the May docket. 25 I do think it's real important, Mr. Warner, that you guys Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 27 of 49 27 1 immediately run these title checks for all the cases set in May 2 and all the cases set in June, because we're going to come up 3 with this. 4 MR. WARNER: 5 THE COURT: Understood. I mean, theoretically, that's what the new 6 parties deadline was for. And, I mean, I could hold your feet 7 to the fire and say: 8 I'm not letting you do this. 9 nightmare for me, so that's the only reason I'm not doing it. Look, you missed the new parties deadline. But I -- I would be creating a 10 You know, I'd be calling down artillery on my own position, and 11 I'm not willing to do that. 12 what we'd do to land titles, you know, if we did it that way. 13 So let's get it right. 14 we go in. 15 Plus, I mean, there's no telling Let's get it right for all of these as Hopefully -- I mean, it's my fondest hope that all these 16 people sign disclaimers saying: 17 to own it. 18 ain't ours. 19 everybody. 20 of land involved in this litigation is going to have stuff like 21 this on it. 22 23 We don't own it. We don't want to pay tax on it. We don't want Whatever it is, it And, I mean, I think that's the best thing for But I've got to be -- I've got to think every piece MR. WARNER: It is, Your Honor. Judge, can -- we were in the process of trying to discuss 24 when the non-dispositive motions for Borzynski would need to be 25 filed and the pretrial order. And something that I wanted to Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 28 of 49 28 1 see if the court would consider, we believe, much in Loop and to 2 a certain extent in what we anticipate filing in Borzynski, that 3 the pretrial order would be substantially affected by whatever 4 the court ruled in the pretrial motions, in these 5 non-dispositive motions. 6 chance to agree yet, but I wanted to see if the court would 7 consider putting the pretrial order deadline after a hearing on 8 the non-dispositive motions, because that will ultimately 9 determine some witnesses. 10 THE COURT: And Ms. Loessin and I didn't have a Let me ask you this. Can we do 11 non-dispositive motions, especially if there are any kind of 12 Daubert-like motions, the last week in March? 13 MR. WARNER: I can do that for Borzynski, Your Honor. 14 don't -- we're going to be humming along in Loop. 15 hesitant to agree on that in Loop, Judge, just simply because 16 we're going to -- as soon as we finish Borzynski, we've got to 17 crank up in Loop, and I just want to make sure we have enough 18 time. 19 20 MS. DEAGEN: I would be Do we not have a non-dispositive motions deadline in Loop already? 21 MR. WARNER: 22 THE COURT: It's April 10th. You do have an April 10th, but here's what 23 I'm hearing. I'm hearing, at least for the first case, and 24 maybe the first several cases, that I'm going to have to have 25 Daubert-like hearings. And my experience has been that Daubert I Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 29 of 49 29 1 hearings last for hours and hours and hours, and then I have to 2 have time to rule on them. 3 I have a criminal case that's going to start and take up 4 every day in April. 5 entire month. 6 attention it deserves is if I do it like, say, the 24th or 7 25th of March before I get tied up in that criminal case. 8 9 I mean, literally it's going to eat up the And so the only way I can really give this the MS. DEAGEN: And landowners are fine with that date for non-dispositive motions in both cases. 10 MR. WARNER: Judge, could -- would the court consider if 11 it's a Daubert challenge that it's got to be done by March 25th, 12 or -- but maybe like motions in limine -- 13 14 THE COURT: thinking of. 15 MR. WARNER: 16 THE COURT: 17 What other kind -- Daubert is what I'm Okay. But if you tell me there's some other non-dispositive motion that I need -- 18 MS. DEAGEN: 19 THE COURT: Motions in limine. That will take time. Like a motion in 20 limine I don't care about because I'm not going to worry about 21 those until we pick the jury. 22 problem. 23 complicated legal that you need me to make a ruling before you 24 do your final pretrial order, I'm going to need to do it the 25 last week in March. You know, so that's not a But if it's some other kind of complicated factual or And by last week, I mean the week of the Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 30 of 49 1 30 23rd. 2 MS. DEAGEN: Judge, I don't see why we couldn't do 3 non-dispositive motions by the end of March, except for motions 4 in limine, which could be done closer to trial. 5 MR. WARNER: Judge, to the extent that -- to the extent 6 that the court may need to rule on the unity of title and 7 whatever highest and best use issues that we think the court has 8 to decide before the jury gets the case, are you saying those 9 also have to be due on March 25th, or just Daubert challenges? 10 THE COURT: 11 MR. WARNER: 12 13 14 15 Could I have just a moment to confer, (Discussion off the record.) THE COURT: Mr. Warner, to the extent -- if I have been ambiguous, I'm not only saying filed, I'm saying heard. MR. WARNER: 17 THE COURT: 19 I'm saying they're both. Judge? 16 18 Yes. Understood. Like we're -- I wanted to make sure we're on the same page. MR. WARNER: Judge, I have no problem agreeing on that 20 to Borzynski, Your Honor. And to the extent that the court is 21 still considering trying Borzynski first, Your Honor, the only 22 thing I would propose is if we could keep the current deadlines 23 in Loop with the understanding that when the court finishes that 24 criminal trial, Loop is going to be tried second anyway, such 25 that the court could still hear those issues, you know, I still Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 31 of 49 1 don't think that affects Loop if we leave them where they 2 currently are. 3 THE COURT: 4 MR. WARNER: 31 I don't have a problem with that. If the court was already planning on doing, 5 at least technically right now, Borzynski first, which is -- I 6 would agree with the court, it's -- between Loop and Borzynski, 7 Borzynski is certainly the cleaner of the cases in terms of the 8 legal issues. 9 THE COURT: Let's do this. Let me set a hearing in 10 Borzynski for 9:00 on the 24th of March. 11 whatever name you want to give it. 12 Daubert issue; you know, if you're a state court fan, you can 13 call it a Robinson issue. 14 But if it has to do with whether the experts can testify and 15 what they can testify on, i.e., best use -- 16 MR. WARNER: 17 THE COURT: And at that time -- You want to call it a I mean, you know, pick your name. Right. -- unity of title, unity of use, you know, 18 issues that are going to require or you want me to rule on 19 before trial, I need them heard then. 20 MR. WARNER: 21 THE COURT: Understood. And I'm sorry that I'm vague on this; but, I 22 mean, some of this, you know, just -- since we haven't tried one 23 of these, I don't know what all the issues are. 24 25 MR. WARNER: Well, and unfortunately since I haven't deposed their expert yet, Judge, I've got an idea of what the Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 32 of 49 32 1 issues are based on the report; but until I actually depose 2 their expert, that's when it becomes ultimately clear what I may 3 or may not file. 4 Your Honor, with the hearing on the 24th, is the court 5 wanting to set a deadline for filings? 6 or -- 7 8 THE COURT: Maybe the week before Well, it would be helpful if you'd have everything that you want me to read filed by the 20th. 9 MR. WARNER: Okay. 10 MS. DEAGEN: Well, speaking for the person who's likely 11 to be responding, Judge, is there a deadline by which it has to 12 be filed so that we have more than four days to respond? 13 THE COURT: 14 MR. WARNER: 15 16 Hold on just a minute. Could we suggest maybe the 14th and then the responses by the 20th, Your Honor? THE COURT: No. I tell you what I do want to do. 17 Instead of the 24th, let's do these at 9:00 on the 30th. 18 a Monday. 19 MR. WARNER: 20 THE COURT: That's Okay. And I have a couple things scheduled that 21 day, but both of them, I think, will be fairly brief. And we 22 can just take a break and I'll do the other things and we'll 23 come back to this. 24 And that way -- well, why don't we use the 24th as your deadline 25 for filing things. And I can devote all day on the 30th to it. Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 33 of 49 1 2 MS. DEAGEN: 33 Filing a response to it, or the deadline for filing the motion? 3 THE COURT: Well, let's figure out how to do this. 4 Let's do this. 5 the motions and the 27th as the deadline for any response. 6 that way I can have everything over the weekend, and we can come 7 in on the 30th and do it. 8 9 Let's have the 20th as the deadline for filing MR. WARNER: That's no objection from the United States, Your Honor. 10 THE COURT: 11 MS. DEAGEN: 12 And Now, let me -Judge, I don't mean to sound whiney, but not -- 13 THE COURT: 14 MS. DEAGEN: But I'm going to whine; is that it? Seven days -- and I don't know what this 15 motion is going to look like, Judge, but seven days to get 16 briefing? 17 THE COURT: 18 going to look like. 19 MS. DEAGEN: 20 THE COURT: Well, let me talk about what the motion is Okay. And I suspect I'm going to get two different 21 kinds. 22 motion: 23 he can't testify as to this because he doesn't know what he's 24 talking about. 25 I mean, I'm going to get more of your standard Daubert This guy either is not an expert, or he's an expert but MR. WARNER: Certainly anticipate at least one of those, Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 34 of 49 1 Judge. 2 3 34 THE COURT: Okay. And that should be fairly routine to respond to. 4 MS. DEAGEN: 5 THE COURT: Okay. The other thing I'm hearing Mr. Warner say 6 is we're going to say: 7 you to rule that the Borzynski land, that it's -- by far, its 8 best use is as a farm. 9 200 years. 10 11 Judge, before we get to trial, we want It's a farm now. It's been a farm for It's going to be a farm for the next 200 years. That's what it ought to be. And so your response to that, it's either going to be: 12 Yeah, it's a farm, but it's a really good farm. Or, you know: 13 It's not a farm. 14 river. 15 you know, so its best use is going to be as an amusement park, 16 or whatever. Disney has been buying all the property on the It's going to be their new theme park down there, and, 17 MS. DEAGEN: 18 THE COURT: Okay. And that one, quite frankly -- I mean, both 19 of these, there shouldn't be any surprises to it. 20 also urge you guys, because, I mean, clearly I'm going to have 21 two days to read these, that -- and it's Saturday and Sunday, so 22 I don't need War and Peace. 23 MR. WARNER: 24 THE COURT: 25 But let me Understood, Judge. You know, get right to it. guy is not an expert. You know: The Yes, he's a certified land appraiser, but Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 35 of 49 35 1 he's never done farmland or he's never done -- you know, he's 2 never been in the Valley before. 3 right to the point and tell me why he -- you know, or he can 4 testify to A, B and C, but not D, E and F, and this is the 5 reason, and get right to it. 6 You know, whatever it is, get And the same way, although there's going to be more of a 7 legal argument with the unity of title and unity of use, that 8 type of thing, and there's going to be two arguments. 9 going to be -- because I anticipate, Mr. Warner, you're going to 10 have to say we want this ruling before trial. 11 we want. 12 ruling. It's Here's the ruling And, Judge, you're the one that ought to make this 13 MR. WARNER: 14 THE COURT: That's correct. Because I kind of heard Ms. Deagen say that 15 may be a jury issue. So she may be coming back saying: Judge, 16 you don't need to rule at all. 17 come in, and the jury gets to decide as part of compensation. 18 You know, its best use is part of that issue, and that ought to 19 be something for the jury to decide. 20 to be more of a brief, a legal brief. 21 expert issue, as most Daubert motions are, you know, you're 22 going to say: 23 to do to be an expert. 24 here, he drops through the Daubert trap door. 25 be kind of short and sweet. This ought to be -- all ought to So that's actually going Where the other one, the Here's what the rule says. Here's what they have And he's fine except when he gets to And that ought to Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 36 of 49 1 MR. WARNER: 2 THE COURT: 3 MR. WARNER: 36 Okay. All right. Have we -- So then docket call then for Borzynski then 4 would move forward then to that April 28th date that we have for 5 Loop? 6 THE COURT: 7 MS. DEAGEN: 8 sidetracked you. 9 respond? 10 THE COURT: 11 just as simple as: 12 and here's why. Correct. So, Judge, let me backtrack because I 20th to get the motions filed. 13 MS. DEAGEN: 14 THE COURT: Yeah. 27th for us to And your response, Ms. Deagen, can be Mr. Warner is wrong, as I knew he would be, All right. Seven days is no problem then. And then when we get to final pretrial, 15 which will be the 28th -- I'll know more about my schedule, and 16 I may actually move that back to the 27th. 17 you, giving you a head's up. 18 cases. 19 do with the fence set that day, and so I may bump Borzynski back 20 to the 27th because I want to go ahead and admit whatever 21 evidence we're going to have. 22 so that when we pick the jury, when the jury does come in, we 23 don't have -- we're not going to have a bunch of evidentiary 24 fights. 25 landowners and neighbors and whoever else is going to testify, I'm just warning 28th is a Tuesday. I have other I have actually a number of cases that have nothing to I want to get all that stuff done We're just going to put on the experts, put on the Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 37 of 49 1 37 and the jury will rule what the jury rules. 2 MR. WARNER: Judge, would the court consider then your 3 pretrial order being due mid April so that we have a couple of 4 weeks after the court's hearing on the 30th to get all that put 5 together and submitted to the court? 6 7 THE COURT: I think it will be fine if you get it done by the 17th. 8 MR. WARNER: 9 THE COURT: 10 MR. WARNER: 11 THE COURT: 12 MR. WARNER: 13 THE COURT: I'm sorry. By what, Judge? The 17th. Of April? Yeah. Thank you, Your Honor. Because I feel like I'm going to find out 14 the last week in March a lot more about this case, so I'll know 15 where everybody is going so I don't need to study up as much on 16 it. 17 My jury selection will be on the 30th. There is a chance 18 that I might again do a special jury selection for this, so I 19 might bump it to the 31st or do it on the 29th or do, you know, 20 something where these cases are by themselves. 21 I anticipate -- I can't even remember. Alex, do we have a 22 pretrial order in this? 23 pretrial order in front of me, but I would bet that didn't I say 24 that y'all could do voir dire? 25 MR. WARNER: I'm sure we -- I don't have the Judge, it has not said that. And Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 38 of 49 38 1 initially, that was one of the things we wanted to talk to the 2 court about. 3 THE COURT: Well, that may have been because we hadn't 4 decided whether to do jury. 5 minute. 6 MS. DEAGEN: 7 THE COURT: 8 question. Let's talk about voir dire for a Okay. I anticipate -- first let me ask the I assume y'all want to do some voir dire. 9 MS. DEAGEN: Yes. 10 MR. WARNER: The United States would certainly like to 11 do some voir dire. 12 THE COURT: 13 I'm going to allow that, but I'm also going to do some. 14 MS. DEAGEN: 15 THE COURT: Okay. And I'm telling both sides now, we -- 16 everybody that lives down here knows how politically charged 17 this issue is, and we're not trying whether there should be a 18 fence or a wall or the political ramifications of that. 19 we're going to try is what the land was worth and what it's 20 worth now. 21 the jury, the jury pool, and I'm going to hold y'all to that in 22 voir dire. 23 That's our issue. What And I'm going to stress that to So, I mean, if you start going far afield, I'm pretty lax 24 when it -- you know, if the other side doesn't object, I 25 basically let anybody do whatever they want to, but I won't in Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 39 of 49 1 this case. 2 point. 3 I'm -- you know, I'm -- I want y'all to stay on And, you know, if for some reason the verdict is such that 4 it's clear that the jury didn't stay on point, I may remedy 5 that. 6 both y'all can do voir dire. 7 don't -- let's don't get astray on that. 8 9 10 39 So let's keep to what the issue is here. MR. WARNER: Plan on it. And so, yes, But stay focused and Is the court going to limit the number of questions we can ask? THE COURT: No. I'm probably going to limit the time I 11 give you. 12 half hour, a half hour each. 13 preliminarily for 20 minutes or so and then, you know, let the 14 plaintiffs go and then let the defendants go. 15 My inclination is probably to give both y'all like a MR. WARNER: So I may talk to the jury Is the court -- I mean, in terms of the 16 court's instructions about the value, which certainly the United 17 States would love to keep the jury focused on that, Your Honor. 18 Ultimately, though, is the court going to allow us to explore 19 whether they're so against the fence that they couldn't even 20 consider -- they couldn't consider value without being biased? 21 THE COURT: Yeah. But, I mean, I'll let you do that, 22 and I'll let both sides do it, not just the government, but I'm 23 probably -- I mean, my goal is to ferret out anybody beforehand 24 that's already that way. 25 people, you know, that say: And I think we probably will have some I'm so mad about this, I can't see Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 40 of 49 1 2 40 straight. And I'll probably actually have a bigger panel for the first 3 couple fence cases until we get a track record and just to see, 4 because one thing I don't want to do is run through a panel and 5 find out we have to do it all over again. 6 Borzynskis don't want to do that either. 7 probably not happy about going to trial in May, much less March. 8 MS. DEAGEN: I'm sure the They want -- they're Judge, the deadlines we've talked about so 9 far in Borzynski, am I to understand those are different than 10 Loop deadlines, or are we setting those for Loop deadlines as 11 well as far as the Daubert motions? 12 THE COURT: 13 MR. WARNER: Are they going to be the same? Well, not necessarily. I may not have a 14 unity of title issue in Borzynski; whereas Loop, I may have 15 that. 16 THE COURT: Let's just concentrate on Borzynski. Let's 17 just keep it focused. I mean, I think I -- you know, it's very 18 unlikely that I'm going to rule differently in Loop if I've 19 already ruled on the same issue in Borzynski. 20 MS. DEAGEN: Okay. 21 MR. WARNER: Judge, you currently have the 22 non-dispositives set for April 10th, but you also have the joint 23 pretrial order set for April 10th, which would actually put it 24 before Borzynski. 25 date on the pretrial order, the joint pretrial order, or -- Would the court consider maybe a little later Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 41 of 49 1 2 THE COURT: You can do them both on the 17th. Why don't you do that. 3 MR. WARNER: Okay. 4 MS. DEAGEN: Yes. 5 THE COURT: 6 41 You okay with that? Especially if everything is marching in block step, it might be easier to do it that way. 7 MR. WARNER: Okay. 8 MS. DEAGEN: Judge, on the consolidation issue, I don't 9 10 know. Would the court like to set a briefing schedule that you'd like to hear from us on that particular issue? 11 THE COURT: Well, why don't you go ahead and -- you 12 filed a motion to consolidate several months ago, and the United 13 States has just basically responded to it. 14 MS. DEAGEN: I think that's accurate. We have 15 additional briefing to put before the court as this issue gets 16 teed up. 17 THE COURT: Why don't you go ahead. And let's try to do 18 that earlier than later, because if we're stacking things in 19 April and May -- 20 MS. DEAGEN: 21 THE COURT: 22 one time. 23 March 6th. 24 25 Right. -- I mean, that's too much for me to read at So if you could maybe get it filed by, say, like MR. WARNER: Your Honor, I suspect that -- just so that the court knows, I suspect that we will probably have a second Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 42 of 49 1 amendment to our opposition. 2 need to get out and depose the landowner. 3 4 THE COURT: 42 Obviously with that setting, I Just so it doesn't bring in about 50 parties. 5 MR. WARNER: No, no, no, but I need to -- as I state in 6 my motion, Your Honor, or my opposition that I filed, we really 7 are not going to have a firm grasp on unity of title until we've 8 taken the landowners' depositions, so obviously I need to do 9 that post haste. But I just wanted to inform the court that I 10 will probably be amending this response even once we've done 11 that. 12 THE COURT: 13 MS. DEAGEN: 14 THE COURT: All right. Judge -Wait, wait. But, Mr. Warner, you are going 15 to ASAP, say like by February 13th, have done title searches on 16 all the Loop property so that -- so that you can name new 17 parties if there are new parties? 18 19 MR. WARNER: THE COURT: 21 MR. WARNER: I am ordering it. Then it doesn't matter. We'll get it done, Judge. 23 THE COURT: 24 MS. DEAGEN: 25 Judge, we are going to bump that up -- well, Judge, why don't you order it by February 13th. 20 22 That's a week from Friday. All right. I'm ordering it. Judge, can we further order that we're done in Borzynski as far as new parties as far as today? Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 43 of 49 1 MR. WARNER: We are done. 2 MS. DEAGEN: Judge, can we -- 3 THE COURT: Wait, wait. 43 While we're on the new party 4 issue, I think it would be helpful for as soon as -- as soon as 5 possible with regard to these new parties if we get disclaimers, 6 the royal we, either side -- 7 MR. WARNER: 8 THE COURT: 9 Yes. -- let's file them so we can get rid of these people as fast as we can get rid of them. Because if we 10 trot down to trial, you know, two months from now, three months 11 from now and we still have the City of Laredo or the Armstrongs 12 or whomever in here, we're going to have to make accommodations 13 for them, and that's going to clear the trial setting again, so 14 let's -- 15 MR. WARNER: Judge, we're -- I told my support staff 16 downstairs to prepare to mobilize immediately after this 17 hearing, so we are prepared to do this as quickly as we possibly 18 can, Your Honor. 19 20 THE COURT: and do June's ASAP too. 21 MR. WARNER: 22 THE COURT: 23 Well, I'm going to need you to turn around So, I mean -- Understood, Judge. -- we're going to have to get this done in every case. 24 MR. WARNER: 25 THE COURT: Yes. All right. Go ahead, Ms. Deagen. Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 44 of 49 1 MS. DEAGEN: 44 I want to step back just one second on the 2 consolidation issue and the briefing in Loop that I just asked 3 for us to have a deadline on. 4 that, as I understand it, the last filing by the government 5 basically asks the court to defer ruling on that and asks for 6 the time to do more discovery. 7 our court as far as briefing the consolidation issue. 8 I'm wondering if we could set a deadline by which the government 9 puts their briefing out there as to why they're opposed to It was brought to my attention So I'm not sure the ball is in And so 10 consolidation of the cases and then we set a response date for 11 landowners. 12 THE COURT: Well, they've already filed an opposition. 13 What Mr. Warner said is he wants to have leave to argue that 14 there's no unity of title, and I understand that. 15 know the three elements. 16 whatever it is you're going to file. 17 know whether you have unity of title or not -- 18 MS. DEAGEN: 19 THE COURT: I mean, we And so why don't you go ahead and file And, I mean, you ought to We do. -- or if there is a glitch that, all right, 20 yeah, a corporation owns this, but we own the corporation; you 21 know, so, I mean, that's -- I mean, there's already Southern 22 District case law on a situation like that. 23 and move this forward, because the more you backload this, the 24 less chance I have to spend some time on it. 25 MR. WARNER: Okay. So let's go ahead So what was that -- I'm sorry. Was Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 45 of 49 1 45 it that February -- March -- 2 THE COURT: 3 MR. WARNER: March 6th, okay. 4 MS. DEAGEN: I need to brief consolidation. 5 MR. WARNER: Judge, my case law is really not going to 6 change in this. 7 the law. 8 Just the facts. 9 10 So that's -- that's -- the law is not going to change. Theoretically neither one should change, but -All right. What else can we -- what other rabbit can we kill, rat can we kill, whatever? 13 14 It's just simply applying what I now know to THE COURT: 11 12 March 6th. MR. WARNER: Judge, do you anticipate that criminal trial being done by the end of April such that we'll start? 15 THE COURT: Well, I will tell you that while I 16 anticipate that, neither side anticipates it, so they're going 17 to have to work very hard. 18 19 MR. WARNER: I was going to say, AUSA Lewis is holding his cards close to the vest on that one, Judge. 20 THE COURT: No, he's already explained to me that he 21 thinks it's a six week trial, and I've explained to him it's 22 not. 23 MR. WARNER: 24 THE COURT: 25 facts. Okay. And I can do that because I know none of the Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 46 of 49 1 MR. HU: 46 Your Honor, there's one other -- Daniel Hu for 2 the United States. One other issue that Mr. Warner and Ms. 3 Loessin may not be familiar with because I think it happened in 4 connection with the McAllen hearings last September. 5 time the court asked me whether the United States would consent 6 to all these cases, should they be jury cases, to use the state 7 rule for a non-unanimous verdict. 8 ultimately filed the pleading with the court saying in these 9 cases, the government would. At that And at that time I believe I I don't know if that's going to 10 apply in this Borzynski case or not, but I just wanted to bring 11 that up now. 12 THE COURT: Well, my normal practice for those of y'all 13 that have tried civil cases here, you know, is that I'm a 14 creature of state court, and I like 12 person juries. 15 federal rule is you get a six person jury. 16 can have a 12 person jury is if both sides agree to it. 17 rule on that is if we're going to have a 12 person jury, we 18 follow the state rule, which is 10/2, 11/1, or 12/0 as far as 19 the verdict. 20 So I'm willing to do it either way. 21 person jury, it's got to be 6/0. 22 think you get a better cross section. 23 bias. 24 the other way. 25 of the community with a 12-person jury. But the So the only way you And my Obviously if it's a six It's got to be unanimous. I It's just my own personal I'm sure there are studies that you can find that argue But I just think you get a better cross section Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 47 of 49 1 2 3 So what's the government's feeling on that? MR. WARNER: Judge, we would prefer the 12-person panel with ten of 12, 11 of 12. 4 THE COURT: 5 MS. DEAGEN: 6 THE COURT: 7 Ms. Deagen? Landowners would prefer the 12 person. All right. MR. WARNER: Yes. 9 MS. DEAGEN: Yes. 11 THE COURT: And it's obviously got to be the same ten, same 11 on all the issues, but -- 12 MR. WARNER: Right. 13 MS. DEAGEN: Yes. 14 THE COURT: 15 MR. WARNER: 16 All right. 18 MS. DEAGEN: No. 19 MR. WARNER: Okay. 20 THE COURT: 23 So Borzynski and Loop, that's what we'll do? THE COURT: 22 That's what we'll do. And would that include Loop as well? 17 21 And both of y'all are agreeable on 10/2, 11/1, 12/0? 8 10 47 All right. That's my -- is there any objection to that? Very well. So that includes Loop as well. Thank you, Mr. Hu. I had forgotten that. had actually told me to bring that up, and I forgot it. Anything else we can resolve today? 24 MS. DEAGEN: I think that's it, Judge. 25 MR. WARNER: That's it, Judge. Alex Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 48 of 49 1 THE COURT: Okay. 48 I really am adamant about getting 2 whatever new parties in both the May cases and the June cases 3 out on the table now, and I'm -- you've seen what I've done on 4 other cases. 5 I've been giving them, and I'm okay with that as long as both 6 sides do it. 7 they ought to be able to go to trial, and that's my feeling on 8 it. 9 10 11 I mean, if both sides say we want a continuance, But, I mean, if somebody wants to go to trial, MR. WARNER: Judge, on the Daubert hearings, are you going to require that the expert be present for the hearing? THE COURT: I'm not going to require it. I mean, it's 12 your hearing. If you think it's better that he or she be here, 13 then get them here. 14 deposition or affidavit or whatever you have, then, you know, 15 I'm leaving that up to y'all. 16 MR. WARNER: 17 THE COURT: 18 MS. DEAGEN: 19 THE COURT: 20 MR. WARNER: 21 22 23 24 25 And if you think you've got it on the Very well, Judge. Okay. All right. Anything else? That's all we have, Judge. Thank you. We'll stand adjourned. Thank you, Judge. * * * (End of requested transcript) Case 1:08-cv-00276 Document 39 Filed in TXSD on 02/20/09 Page 49 of 49 1 2 3 -oOoI certify that the foregoing is a correct transcript from the record of proceedings in the above matter. 4 5 Date: February 20, 2009 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 /s/________________________ Signature of Court Reporter Barbara Barnard