THE COURT: All right. We’re here in the case
this morning of United States v. South Florida Water
Management District, 88-1886-CIV-HOEVELER, and specifically
on pending motions, which I have at least three of in front
of me, those motions bring the United States’ emergency
motion filed back in June -- to the extent that that’s
pending and still an emergency, we’ll address in a
moment -- the United States’ motion for a temporary
protective order filed in October of 1989, and the motion
of the defendants, the District, filed in November of 1989.
And we will address these.
I spent some time this morning reading through
most of these -- well, yesterday and this morning -- only
to find that -- and having spend about forty-five minutes
on one of them, finding that a great deal of this perhaps
is no longer at issue. But, hopefully -- hopefully none of
it’s at issue, but I don’t think that will be the case.
May I have appearances of counsel that are going
to argue here this morning.
MR. HARRISON: Richard Harrison for the United
States, and beside me is Susan Ponzoli for the United
States.
THE COURT: All right.
MR. JACKSON: Your Honor, I’m Jerry Jackson. I
represent the South Florida Water Management District and
3
the Defendant John Ladraska (phonetic). There’s also a
forms motion pending, another motion that we filed in late
June or early July, a motion for a protective order.
THE COURT: Yes. That -- I didn’t -- I did see
that. In fact, it’s fashioned somewhat as a response to
one of the motions to compel.
MR. JACKSON: Yes, that’s correct.
THE COURT: That’s right. All right. Your name
is Kerry Jackson?
MR. JACKSON: It’s Jerry Jackson with a "J".
THE COURT: Jerry Jackson. All right.
MR. ANKERSEN: Tom Ankersen for the municipal
intervenors, City of Belle Glade and City of Clewiston. We
have no motions pending, your Honor.
THE COURT: All right. I’m sorry. Your last
name, sir?
MR. ANKERSEN: Ankersen.
THE COURT: Ankersen?
MR. ANKERSEN: That’s correct.
THE COURT: All right. Who else do we have?
MR. CROWLEY: Your Honor, for the record, I’m
David Crowley representing the State of Florida Department
of Environmental Regulations.
THE COURT: All right, Mr. Crowley.
MR. CROWLEY: We likewise have no motions pending
4
today.
THE COURT: Okay. Any other attorneys here?
All right. Perhaps it might be best to start at
the end rather than the beginning here, although I’m not
sure which order is best to proceed. But, let me start
with the plaintiffs, because it is their case, and ask the
United States to advise me of which of its motions are --
whether its motion -- November motion is still pending; for
that matter, whether its June motion is still pending; and
what seems to be the dispute at this point.
MR. HARRISON: Okay.
THE COURT: And I might preface this by saying I
don’t need extensive detail at this time. I want to get
some feel for it this morning.
MR. HARRISON: Oh, okay.
THE COURT: But, I have read your motions, and I
see the disputes as it relates to document production,
depositions of certain witnesses, and so forth. So, I’ve
read that . But, where are we at with it right now, Mr.
Harrison?
MR. HARRISON: Okay, your Honor. The initial
June motion to compel, which went to documents, was, at
least to some degree, not waived, but mooted, by the
September 5th reply that was filed at the end of the second
stay. We do believe that that reply, if you will, breathed
5
new life in several issues, about five categories of
substantive issues that are in there. The rest, we don’t
waive them, but we could hope that we could defer any
further argument on those until after we get the rest of
the documents production, and it’s very likely that some of
those will disappear.
With respect to the motion for a protective order
and the attached pretrial schedule, that whole briefing
series that went with the motion for a protective order --
I think there were about six different briefs with the
replies, sur-replies, etcetera – that is all still very
much at issue. The procedural issues with respect to the
pretrial schedule are most compelling, and we do want to
argue those.
With respect to -- I think basically, your Honor,
that is it. The series of the pretrial -- of all of that
pretrial stuff. Beginning with the protective order and
their responses, is going to take up, I think, a good
portion of the Government’s argument today; and we --
THE COURT: All right.
MR. HARRISON: -- We need rulings on that.
THE COURT: Has there been any further discussion
and agreement on any of these matters? Perhaps a better
way to do this is just for you side to begin with whatever
motion you think is appropriate here to begin with and what
6
it is that is still at issue as it relates to these
discovery disputes.
MR. HARRISON: Yes, your Honor. How much time
would you care to allow me -- to begin arguments now or to
simply summarize?
THE COURT: Well, let me also state that, as I
read through this, it seems that a great deal of this could
be done based on these papers. To the extent that it
requires a court order, I need to know what it is that’s
still at issue here, what needs to be decided by the court,
and what doesn’t have to be decided by the court. I don’t
want to make rulings that have already -- that would
conflict with agreements.
MR. HARRISON: I agree. Thus far, you --
there’s -- other than certain of the substantive areas and
the manner of production, in others words whether boxes will
be produced by specific category or as kept in the usual
course of business, that’s all relatively moot at this
point. We don’t waive it, but that is -- a lot of that was
moot, other that the five categories in that original
motion to compel of the United States. There are virtually
no disagreements on other procedural matters. That, I
think, is going to take up most of the court’s time.
What I would plan to do is not go specifically
motion by motion. I think we gave you some twenty-two
7
different documents, and I -- rather than to go motion by
motion, we would like to tell you what immediate relief we
think that we need from this hearing, both substantive and
procedural.
THE COURT: All right. I think that’s a better
way to proceed actually; and then I would, of course -- I
realize that the defendants have a response to that and
also a request for relief. Hopefully this would come down
to some kind of an agreement or, if not and agreement, a
court order for a scheduling order in the case, I see one
proposed by both sides -- a different one proposed by both
sides. But, let’s proceed in that manner. Any problem
with that as far as the defendants are concerned?
MR. JACKSON: No, your Honor.
THE COURT: All right. Mr. Harrison, why don’t
you tell me what the -- where a dispute still exits in
this discovery and that relief you’re requesting.
MR. HARRISON: Okay, your Honor. I would ask the
court that -- we’re trying to essentially summarize nearly
a year or over a year of various disputes, most of which
are now procedural; and I honestly believe that I will need
at least forty-five minutes to go through this. It is a
global argument, but, we feel very compelled to show the
court the importance of the procedural problems and to
contrast the two discovery schedules that you have before
8
you -- or actually three with our expedited schedule. We
have been, I guess, arguing for over a year, despite what
we believe have been good-faith attempts by the United
States to try to at least resolve some of these disputes.
Now discovery has been deadlocked for five months, and the
case simply has to go forward.
Judge, the case is extremely important. The
United States needs to take this case to trial; and we need
to take it to trial as rapidly as we can, but we can’t
afford -- we would be guilty of almost malpractice if we
agreed to take this case to trial in eight or nine months
in a shabbily prepared manner. We do have the burden of
proof, and we have to have some orderly discovery. We’ve
been unable to reach a schedule, and that’s what I want to
address today.
I ask the court to keep in mind three factors in
trying to decide who, in all of this melee of discovery
battles, has really tried in good faith to at least elicit
some cooperation; and I think that is central to any
discovery dispute.
The one factor is that, as I will address more
specifically, the United States has at least formally
proposed three different discovery schedules to the
defendants. Not only have we not got counter-offers during
those discussions, we’ve simply been told that they won’t
9
discuss it. The only one that they ever proposed was in
reaction to the one we ultimately filed in court. We don’t
believe that schedule is a serious schedule; and we don’t
think that there’s any way that that schedule promotes
orderly trial preparation; and in fact, we think that it
will promote chaos. Whether it’s intended to do so or not,
we’re not going to talk, but it will promote chaos. It’ll
prevent the plaintiff from preparing its case in an orderly
fashion and meeting its burden of proof.
The second fact that we’d like you to keep in
mind is that the United States has granted, at the request
of the defendants, two stays of discovery. I think that
that shows some cooperation. The United States has also --
and I know this sounds a little nitpicky, but our request
for production predates theirs by two months.
But, the bottom -- line fact is, your Honor, we have
approximately one -- third of the documents that they
themselves, over and above all of their vagueness
objections, have estimated are responsive to our request.
They’ve estimated about a half a million. Thus far they’ve
produced for inspection a hundred and fifty thousand.
On the other hand, your Honor, they have now been
allowed to look at all of the documents at the National
Park Service at the Park and the US Fish & Wildlife
Service. They only lack one agency -- they’ve had
10
two-thirds of the agencies they’ve requested -- and that is
the Corps of Engineers, and we’ve offered those times. I
will discuss those a little bit more.
The fact is we now have a log jam. It hurts the
plaintiffs more that it hurts the defendants. We have the
burden of proof in this case. If we continue to fight
about discovery right up until the brink of trial and
continue in discovery battles that cause these types of
pleadings, we stand to lose. There’s no up side for the
United States in escalating a discovery war when we need to
get a case to trial but in a proper manner.
There’s -- we’re going to try to summarize this,
your Honor, in roughly five substantive areas that we need,
and those will be very brief, and those do come out of the
original request for production of documents and motion to
compel, and that’s what we’re -- that’s all we’re going to
address substantively today. Procedurally we’re going to
address five issues as well. I want to at least briefly
tell the court what those procedural ones ore. Then I plan
to discuss the substantive ones and argue them; and then I
want to specifically go back to the procedural ones,
because I think they’re really the most important to us.
The procedural matters that we feel that we have
to have a ruling on from your Honor as a result of this
hearing to move the case forward is, one, the discovery
11
schedule. We don’t believe there’s any realistic
possibility that we can agree any longer, and I will
address that further.
The basic order of that discovery schedule would
have to be really that the documents -- the first round of
documents were complete; then we did use interrogatories
merely as a means of revealing witnesses -- who’s a fact
witness, who’s an expert witness, in what capacity are they
going to testify to, and the basic 20(b) -- 24 -- or excuse
me -- 26(b)(4)(a)(i) information. We have no intention of
making them go to further motions to depose experts. We
clearly will give then our expert witnesses. But, it --
but, you have to know who they are before you start
targeting everybody in the agency for deposition.
The order is, of course, the most important. It
will resolve some of the other procedural problems.
The second procedural ruling we feel that we
absolutely have to have is that the District must be bound
District-wide by a request for production. We didn’t sue
the individual divisions of the District. There’s some odd
forty divisions. The District has to be bound regardless
of where a document is located. The United States has long
ago agreed that the whole Federal Government is bound,
regardless of whether we have the documents in Jacksonville
with the Corps of Engineers -- no matter where they are, we
12
agree to produce documents if they’re responsive to that
request.
The third ruling we must have or that we feel is
necessary to keep the case moving is that, because of this
massive documents request and because everybody in this
lawsuit are public agencies supported by tax dollars and we
don’t want to pull these people off of their jobs any more
than necessary., the lawyers should accept the burden of
documents production. We should accept the burden of
getting the documents and reviewing the documents before we
go with subpoena duces tecums and force the witnesses to
bring in scads and hordes of documents. That’s double
production, it’s counterproductive, and it does nothing by
escalate the cost to all for these tax-supported agencies.
The fourth thing we have that we would like and
that will be solved by the discovery schedule, if it’s
adopted, is we do want the first round of documents
completed immediately; and that’s on both sides. We want
them to go to the Corps, and we want to be able to go and
finish our two-thirds of the documents they say they
already have for us. We can argue about if there’s any
that have been withheld later, but let’s finish the first
request.
The last thing we need -- it’ll also be settled
by the thing -- is we would like some way to compel
13
teleconferences to resolve minor discovery disputes. I’ll
get into that later. I realize the court’s power is
limited here, but I think it’s going to be a very valuable
tool, and it does come out of the Manual for Complex
Litigation.
Just a brief summary of the procedural things
that are absolutely critical to this case. All of these
parties are tax-supported. Judge Smargon, in two hearings
and in an order, has recognized that. He has mandated the
parties to be cooperative. We have a higher duty than in a
normal case to be cooperative. We have to. It is costing
the public a ton of money, regardless of who’s filing the
pleadings; and because of that, your Honor, we think the
procedural issues are critical, and we can not longer handle
a log jam.
The substantive issues that we believe we need a
ruling on -- and I will go ahead and, as I mention these,
make the brief argument and get these over with. The
substantive issues -- No. 1 would be the records that we
allude to roughly in Paragraphs 57, to some degree in 56,
59, 33, and 34, of our request for production. 56 and 57
are the most important of those. And these really are --
they’ve objected to our definition of agency positions -- I
think it’s pretty clear, and I’m willing to explain what
agency positions are -- and the administrative hearings and
14
orders. What we have asked for is the positions, official
positions the agency has taken with respect to regulating
agriculture.
You can summarize the gravamen of this case in
one line. That’s the failure -- knowing failure of the
defendants to use the laws the legislature gave them in
1972 to regulate agricultural pollution. It’s been
eighteen years. We’re now suing to enforce those -- to
make them enforce the regulations. It’s critical if they
have agency positions, whether they’re memoranda or
whatever, that define whether they believe they can
regulate or whether they can’t regulate and why.
The administrative hearings and the orders are
equally important. If there are records of administrative
hearings and orders, whether they’ve either regulated
agriculture successfully or not, we believe those are very
important; and in fact, they’re already required under
Florida Statute 120.53.
We don’t think there’s anything vague about the
definition of agency positions; and if it is, we hope that
this has cleared that up. Other water management districts
have attempted to regulate --
THE COURT: Could you repeat for --
MR. HARRISON: Yes, your Honor.
THE COURT: Could you repeat for me-- you’re now
15
referring to the defendants’ objections to certain of your
requests, and I think you cited 56 and 57. But, which
other ones are you -- which other numbers --
MR. HARRISON: Okay. Those are the primary ones.
I think that they also -- the agency -- the administrative
hearings and orders also touch on paragraphs 59, 33, and
34; and those are our paragraphs from our request for
production, your Honor.
THE COURT: All right.
MR. HARRISON: The second --
THE COURT: And was there another phrase -- other
than agency positions, did you mention another phrase?
MR. HARRISON: Yes, there was. The
administrative hearings and orders.
THE COURT: Okay.
MR. HARRISON: We want -- excuse me -- all
records that they would have of those.
THE COURT: All right.
MR. HARRISON: The second substantive area that
we believe we -- that is -- that we have breathed new life
in and we still need a ruling on is really -- and I’ll give
you the numbers -- would be our Requests No. 37 and 57; and
basically that deals with -- 56 is kind of a dual thing
there. It deals with regulating the EAA -- but, it’s the
operations control manual that’s mentioned in our request
16
for production.
This is a manual that allows the District to
remotely control some odd fifty structures. Remotely, an
farmer calls and says, "We’re getting flooding up here at
so-and-so-and-so-and-so." They can remote with a microwave
beam. We want to know the criteria for operating that
structure and what it takes to get them to open or close
that structure, because -- well, I’ll explain the reason in
just a second.
The other would be the discretionary authority
portion.
And I would direct your Honor on all of these
substantive issues -- the real main document where this is
set out was the September 5th reply to -- let me get you
the exact title. This was the -- excuse me for one moment.
MS. PONZOLI: I think it’s this one.
MR. HARRISON: Yeah. I thought I had that
written down. I’m sorry, your Honor. It’s the US’s reply
to the defendants’ opposition to our motion to compel; and
it was filed on September 5th, the day that that second
stay ended. These are the ones that we want rulings on. I
don’t think it’s necessary to go back though that whole
first request for production, except to look at the items
that are covered in this document. At least that’s the
Government’s position. And in there we do discuss the
17
operations control manual, as well as the discretionary
authority.
Now, the defendants are going to tell you that
the United States has continued to maintain this is a water
quality suit only. These two items do go to water
quantity, but they go to water -- it’s a well-known fact
that manipulating the water table in the EAA affects water
quality.
If an agricultural interest -- if a farmer has a
rain forecast for one inch tomorrow, they begin what we
call panic pumping and pump the water table down two feet
or more below the roots of the sugarcane to attempt to
protect the crop from flooding. What happens -- we think
that the District’s operation and latitude for operating
this affects this end that they could control the panic
pumping by use of their permits, etcetera.
It is relevant to quality. Every time they do
unnecessary pumping of the table, it loads the water
with phosphorous and nitrogen, we believe unnecessarily.
We believe that the defendants accommodate this.
They’re going to tell you they can’t make a move
on the discretionary authority without the blessing of the
Corps of Engineers. They’ve maintained that it was the
Corps the whole time. They’ve tried to get them named as a
defendant in this case. When that failed, they have now
18
asserted a counterclaim; and it is their defense.
Simply, to address that, in 1979, they made a
fifteen percent shift. They shifted fifteen percent of the
whole water in this basin that was being back-pumped into
Lake Okeechobee. They had to stop that, because it was
killing the lake with nutrients. They shifted that
downstream to the conservation areas. Your Honor, that is
a major shift in water quantity and timing. That was done
without the Corps of Engineers’ blessing or approval.
That’s within the discretionary authority of the South
Florida Water Management District.
We think -- that’s what we want to explore -- is
the levels of their discretionary authority to control
these water tables. It’s very relevant. So, that’s the
second issue that we believe we need a ruling on, and we
deserve documents in both of those categories.
THE COURT: All right. And specifically now
You’re taking about the manual and then the collective
request in you Request No. 56, all documents relating to
it’s discretionary authority.
MR. HARRISON: Yes, your Honor, and particularly
regarding regulation of agriculture --
THE COURT: All right.
MR. HARRISON: -- and the EAA.
The third area your can find in our Paragraph 50
19
of the request for production, and that is we just simply
ask for all documents regarding the Loxahatchee lease and
the memorandum of agreement, which is our two contract
counts in this lawsuit. If you’ll look at their Paragraphs
10 through 12 -- and I believe they had another one. I’m
not sure exactly where it was -- but, they ask for the
exact same thing with just a few more words.
They say that we’re vague and ambiguous. Judge,
we’d like to be able to narrow the request , but we have no
idea of what types of documents they have. The issues on
the lease -- they have said that they’d give us everything from
from the Legal Office, but they won't give us anything from
any of the other divisions that are relevant to the lease
and the MOA.
There are numerical standards, scientific
standards, set forth in the MOA. We want to know the bases
for those standards, their belief that they’re
enforceable -- anything regarding the lease and the MOA, we
believe is relevant.
If they have marginal documents, if they can tell
us some way to narrow this request, fine; and we don’t want
a document that simply mentions the lease and goes on.
But, if it goes to why that lease was written, why it’s
enforceable, what’s enforceable about it, the scientific
nutrient standards or other standards contained therein,
20
that’s critical to our contract counts .
And those, as I said, your Honor, would be our
Paragraph 50 and roughly their Paragraphs 10 through 12 in
their request for production, but you’ll also find that
alluded to in that September 5th reply.
The fourth substantive issue that we feel that we
need are maps. It’s our Paragraph 8. We ask for all maps
and charts, whether they’re complete or incomplete. We
have shown them ours and our satellite imagery, etcetera,
whether it’s complete or incomplete. And the main thing
the maps do, your Honor, is to update what the damage has
been thus far of the nutrient impact. We call it the
nutrient front, if you will.
According to their own data, as of about a year
or two years ago -- I believe it’s about 1988 -- there were
some odd twenty-six thousand acres of already what is
termed as irreversible damage. No one knows how to restore
a wetland once it goes to a cattail monoculture. The whole
import of that is that this nutrient front is moving down.
These maps have been tracking the damage. It’s their
figures, not us, that that four to five acres per day
are being swallowed up, that the saw grass is being
replaced with monocultures of cattails; and the wildlife
habitat is gone once the cattails are in. The damage, we
believe, begins much sooner that the cattails, but we want
21
to see their maps to see what the latest estimate of the
damage is.
Out of that twenty-six thousand acres, your
Honor, six thousand acres have already been lost in the
Loxahatchee National Wildlife Refuge. And as I said, the
rate is moving at approximately four to five acres per day.
So, we want their unfinished maps.
The last area, Judge, is difficult to pin down
specifically. In the request for production, it’s clearly
within our definition of documents -- meetings, minutes of
meetings, and things like this. But, what this is all
executive staff meeting minutes. Now, they might argue
that somehow they’re not specifically covered in the
request for production. We clearly did ask for all
documents relating to certain water quality issues. We
think that it’s fairly covered, but we’re going to specify
executive staff meeting minutes since 1975.
We believe they have monthly executive staff
meetings. We have been informed that, if there had been
policy decisions memorialized in memoranda, this is where
they are likely to be found. They are critical to our
case. We have asked Mr. Jackson several times for them.
He’s never objected. They simply haven’t furnished them,
and we want those.
THE COURT: And would these be those -- this
22
would not relate to any specific request, but rather to
more than one request, such as I’m looking -- just
scanning -- one two, three, four -- they all refer to
meeting notes. Would that be --
MR. HARIRISON: Exactly, your Honor. It’s clearly
within our definition of documents. It’s clearly within
the general request on meeting notes regarding water
quality. There’s no question. If they say it’s vague and
over-broad, we’re going to define that for them right now.
We have defined it on the phone several times, and we think
they’re known specifically as executive staff meeting
minutes.
The rest of the substantive items, as I said in
the motion to compel, as well as in that request for
production, your Honor, we feel that should remain open
don’t need a ruling on today. We -- after we get the rest
of the five hundred thousand documents, we may not want to
look at another document, unless there is a smoking gun;
and we always reserve the right to go back.
THE COURT: So, what you’re asking for then is
for a decision on these five areas; and there remain
certain disputes as to other of your requests, but you’re
not presently either requesting those documents or
requesting the court to order -- you’re requesting the
documents -- but, requesting a court order or you believe
23
that perhaps that’ll be resolved in some manner.
MR. HARRISON: That is exactly right, and we
believe that it would be a little premature to keep griping
about some of these others. We’ve got about three hundred
and fifty thousand documents, according to their estimate,
to still be furnished. We’re kind of tired of the
late-night reading of documents. I’ll guarantee you that
we’re starting to cut with a broad ax and not with a rapier
on what we need; and when go to identify documents at
the District, we will not even be tagging near the number
of documents. I feel certain, that we have tagged.
But, according to their own estimates, regardless
of all of their objections with vagueness and overbreadth
that are replete throughout their objection to our request
for production, even all of the vagueness set aside, they
have estimated five hundred thousand responsive documents.
That’s all we want -- is to give us what you’ve already
estimated are responsive. We won’t argue about the
vagueness. We won’t argue about the scope. We’re going to
make this simple. Let us review the rest of those
documents. If we at that point in time feel that they are
withholding something, of course, we’ll try to resolve it;
and if not, we’ll be back before your Honor.
But, that, I think, is the gravamen of the
substantive rulings that we need; and I don’t really
24
want --need to , I don’t believe, dwell on that any longer.
The -- except to say that we do have -- we have had a
hundred and fifty thousand, so we do have approximately
one-third that we have been -- produced for inspection
about one-third. Excuse me, your Honor.
Okay. Now, let me at least -- let me go back on
the procedural areas a little bit more specifically. I am
going to spend a little -- most of my time on the discovery
schedule. First off, the goal of any --
THE COURT: Let just – so I’m clear as to
where we’re going with this.
MR. HARRISON: Okay.
THE COURT: A number of the things that I’ve read
about earlier, such as manner of production and so forth,
you did not mention those in the five procedural areas that
you --
MR. HARRISON: No, your Honor. We have, a long
time ago, over our objection initially -- but, you know, we
didn’t like being in a hotel. We wanted to be in the
District offices and all of this, and we -- we have -- we
don’t waive those objections, your Honor. And there was
the other primary objection that we wanted documents
produced by category of the request, not as kept in the
usual course of business.
The Sears case, the Evanston, Illinois case, some
25
of those that were in the brief, clearly say that under a
case this -- of this magnitude we would probably have a
right to that. The District has opposed. We have now
begun the procedure on both sides of producing documents as
they are kept in the usual course of business. They do
provide us now a tracking system. Albeit we can’t go see
which file cabinet, they tell us whose drawers and what
dates; and that’s -- it’s not as workable as if we were,
there and we could go through and pick them ourselves and
we’d know the order, but it’s at least working.
THE COURT: All right. Then I’m not going to --
MR. HARRISON: So, we don’t believe there needs
to be a ruling on that. It was our objection. I don’t
think the District is certainly going to raise it.
THE COURT: All right. And just so the defense
side is clear here, what I want to do is hear from the
United States what it is that they believe needs resolution
and what its specific requests are. You would have a
response, I’m sure, to each of these substantive areas and
procedural areas perhaps. In addition, you may be
requesting additional relief. So, I want -- that’ll be the
kind of order that will proceed here. All right.
All right. What about these procedural areas --
MR. HARRISON: Okay. The first one of course,
is the pretrial schedule. This is the overwhelmingly most
26
important. The schedule that is adopted, regardless if
it’s ours, theirs, or your Honor’s, or some compromise
thereof, in a case like this with all taxpayers, all public
agencies, has got to be efficient. It’s got to be designed
to keep costs down if at all possible. It has to somehow
prevent the continuation of this discovery briefing war.
Nowhere in litigation do you get less for you money than
in discovery wars, and the Lord knows Ms. Ponzoli and I and
the rest of the Government attorneys don’t get anything
except more work when we engage in discovery wars, and it
impedes our progress of actually preparing the substantive
case for trial.
It has to try to prevent duplication of
production. It’s very expensive. It has to prevent
duplication of depositions. It has to do its best to
prevent dual depositions or unduly lengthy ones of all of
these public personnel, both the District’s and ours.
They’re performing very important functions right now for
the environment.
Our schedule, we believe, does that. I ask you
to bear in mind that we did offer them three schedules.
The first one, December 16th, 1988, as reported in the
first part of the joint scheduling conference, which you do
have before you and it is -- well, I’m not -- I’m not going
to refer to the specifics of each of those. The one I’m
27
going to actually refer to, your Honor, would -- is going
to be that expedited schedule, which came in one of our
replies, but --
THE COURT: Let me see if I can find it. I’m
looking at and exhibit, Government Exhibit 4, which is
probably -- what is it called? It’s called an expedited?
MR. HARRISON: Yes, it’s the exhibit -- I don’t
know if the little numbers are still on the corner of the
documents the Government furnished to you. It should be
attached to Document No. 14, which was the -- I can give
you the exact name of that.
THE COURT: Or else if you have a copy of it,
because if I could look at something specific, it would be
easier, you know.
MR. HARRISON: Yes, your Honor, we do. Bear in
mind that this document is now some five months old.
THE COURT: All right.
MR. HARRISON: And when I discuss it, I’ m going
to, in fact, push those dates back five months, because
it’s very important for us to --
THE COURT: All right. I’d like to get your
suggestions on where you think that dates have to be
changed; and obviously some do, because we’re now looking
at this in April, but --
MR. JACKSON: Excuse me, your Honor. I don’t
28
mean to interrupt Counsel .
MR. HARRISON: Do you have one?
MR. JACKSON: But, can we just identify which
document --
MR. HARRISON: You’ve got it. It’s in the --
(Mr. Jackson conferring with Ms. Ponzoli off the
record.)
Yeah, it’s the reply to your response to the
motion of protective order.
THE COURT: It’s the document itself that you
need to look at; and if you have another copy, perhaps it
would be easier for them.
MS. PONZOLI: It’s going to be (d), Jerry. It’ll
be (d).
MR. HARRISON: Let me know if you find it, Jerry.
I have one that’s been -- well. It’s somewhere in here.
Get my Document 14. They can use the document.
MR. JACKSON: Go ahead.
MS. PONZOLI: Don’t you need one?
MR. JACKSON: Go ahead.
MR. HARRISON: Do you have it?
MR. JACKSON: We’ll find it. Go ahead.
(Counsel conferring off the record and looking for the
document.)
MR. HARRISON: You Honor, I just would remind
29
the court, as -- as I -- that -- to show that the
Government has at least tried, we did offer a schedule on
December 16th ’88, which is reflected in the first joint
report of the scheduling filed January 9th, ’89. In
response to that -- and that was fairly early in the
case -- they absolutely refused to discuss a discovery
schedule, period. They wouldn’t even sign the report of
the joint -- the joint report of scheduling.
The second time we offered a formal schedule was
at the second scheduling conference required by Local Rule
14, and that was on July 10th, ’89. That schedule is
reflected in a report filed -- second report of joint
scheduling conference filed August 1, ’89. That -- also
they even refused to discuss it. They wouldn’t make a
counter-offer. We were nine months into the case at that
time, and they said it was premature to discuss a schedule.
The third time was orally prior to my filing the
United State’s motion for a temporary protective order.
During the 10(i)(7) conference, where I spoke with Mr.
Jackson to see if there was any way we could agree and that
we needed a pretrial schedule, I went through it. It was
again rebuked. There was absolutely no way to come to an
agreement, and that’s the point when we appealed to the
court and filed the motion for a temporary protective order
and added a pretrial schedule to it. That is this Document
30
No. 11, if it’s up in the little corner, that we provided
you.
But, they then replied with a schedule that we
believe will add -- will cause this chaos to not only
continue but to escalate. We believe that schedule was
merely a reaction to our filing one in court. But,
nevertheless, we think that’s unworkable.
In our final reply, which is the one that you’re
now looking at, we did decide to try to tighten it as much
as we could tighten it; and we filed this expedited
schedule. We are willing to live with this expedited
schedule. I think that there’s a little modification that
is needed, but you do have to remember that that is now
five months old; and it was filed November 28th. We would
request, if that schedule is adopted, that it be pushed
back by the five months. We don’t mean to delay this case,
but we have to be prepared for trial properly.
On that particular schedule, we believe that that
causes the least disruption of the parties’ agents -- of
the parties’ people. The first thing that it really does
is it requires all documents production -- the first
round -- to be complete by July 1, 1990, if you push it
back five months. Now, that would take care of a lot of
these other problems. We’d have to go the District and
finish ours, they’d have to go to go to the Corps and finish
31
theirs, or we might be out the rest of those documents.
All further discovery, if there are second
requests or other documents identified later, must be
complete no later that March 1, 1991. Interrogatories and
requests for admissions can begin now. They will end on
March 1, 1991.
THE COURT: Which paragraphs now are you
referring to that’ll go to March 1?
MR. HARRISON: Okay. I believe, your Honor, it’s
going to be Paragraph No. 3. It would be talking about
interrogatories and requests for admissions; and again you
have to push that October 1, ’90 date back the five --
THE COURT: All right. So, the Octobers – on
your proposal, the Octobers become March. Okay.
MR. HARRISON: Yes your Honor.
The Paragraph 4 discusses when depositions would
begin. We would like depositions to begin commensurate
with the end of the first documents round, which is July 1,
1990. So, that date in Paragraph 4 would go the July 1.
That’s when depos will begin. Depositions we believe,
will last a year or that that is a proper time frame.
There may be at least sixty to seventy depositions in this
case on both sides, and I think a year is going to be
necessary, and I think we’re going to be pushed for that.
But, so, they would end July 1, 1991.
32
Your Honor, that Paragraph 4 also contains
something that we are very insistent on. It’s the Federal
Rule of Civil Procedure 26(b)(4). We do not mean to put
impediments in the way, but interrogatories have got to be
required to at least identify witnesses, to see who the
witnesses are, whether they’re fact or expert; and in
response to interrogatories, we can also find obviously if
there are expert consultants, which you would then have a
26(b)(4)(b) problem of deposing -- consultants which we’re
not expecting to testify.
This is critical information for any trial lawyer
preparing for a deposition. You simply can’t notice a
party and not have any idea of whether it’s going to be a
witness or not. If you do, it leads to freewheeling
depositions. It’s going to escalate the objections.
You’re going to have objections to the form of the
question. You’re going to have certified refusals to
answer. You’re going to have objections to notices when
someone notices what you deem to be a consultant hired in
anticipation but not expected to testify.
Judge, the Rules were amended in 1970. They were
approved by the United States Supreme Court. They are
tantamount to Supreme Court case law. It says facts or
opinions gathered in the anticipation of litigation by
experts can only be obtained by the 26(b)(4)(a)(i)
33
interrogatories.
The defendants, in that whole briefing schedule,
have simply cast this aside as, "Ah, they’re a substitute."
they’re not a substitute, Judge. They’re a prerequisite.
Rarely do I require this, because in my practice,
which is mainly under domain, we exchange expert reports
and we sometimes forego this and there’s usually only one
expert you’re dealing with. In a case like this, both
sides have admitted we may have thirty to forty expert
witnesses on the stand ultimately, sixty to seventy
depositions of experts. You can’t go in and begin serving
everybody in the agency with deposition notices.
THE COURT: Let me ask you two questions about
that.
MR. HARRISON: Yes, your Honor.
THE COURT: First of all, the defendants have
said that Rule 26 is inapplicable, because these are not
retained experts but are either present or former
employees.
MR. HARRISON: No. Okay. Let’s take Mr. Dan
Shite (phonetic) for example, which is ;one of the three
proposed deponents. Dan Shite is clearly deposable right
now on fact that he knew or gathered prior to this
litigation being anticipated, but Dan Shite, since October
of 1988 -- really since August of ’88 has been exclusively
34
assigned as our litigation case agent.
I submit that the Kansas/Nebraska decision that
they cited -- District Court, 1984 -- was, one, not very
good reasoning. Two, the judge didn’t hold that. The
judge simply held that, as an in-house expert -- the
attorneys claimed that the information was gathered in
anticipation of litigation. They just didn’t meet that
burden. Therefore, the Rule didn’t apply, and he was not
in anticipation of litigation.
The other District Court decision, the Topsy
(phonetic ) v. Sifer (phonetic) International or whatever it
is that was referred to in the Kansas case and the case
that was in our brief, the Marine Patroli (phonetic) v.
Champlin (phonetic), which is a DC circuit Court opinion in
1980, is not only much more persuasive that in-house
experts have be allowed this protection.
Your Honor, there’s a very logical reason for it,
and it’s holding the cost down. A company often times has
the most expertise in its given area of anybody, of any
outside consultants they could hire. The South Florida
Water Management District has certain scientists that are
obviously every expert in their field, and do does the
United States, sometimes more the expert that anybody you
go hire from the outside.
To ever hold that in-house experts cannot ever
35
qualify for the 26(b)(4) protections automatically means
that these people are useless in litigation, because
everything they write down, every conversation that they
have, is discoverable, regardless of whether it’s work
product, regardless of whether it goes directly to the
attorney’s trial strategy in preparing his case.
We do not deny that Dan Shite can be deposed now
or that Mike Finley or that Colonel Herndon, former head of
the Corps -- and Finley, former Superintendent of the
Park -- could be deposed right now. They are parties, your
Honor. They have a right to depose them on stuff that
didn’t involve the litigation. But, clearly those people
have also been involved in the strategy sessions of this
litigation, especially Finley and Shite.
And my point is this. Besides the 26(b)(4)
protections that I think they deserve for the time frame
once they became advisers to the United States in this
case, it’s the timing. Why should we let them depose Mr.
Shite now over stuff that he did prior the litigation.
only to come back and hit him with a second deposition once
they get the documents? It makes a lot more sense to
simply finish the first round of documents. We’ll open
these depositions up. They can go through his fact witness
type stuff as to all of the stuff he did before the
anticipation of litigation. They can go to any reports
36
that he may generate for us.
We honestly have not decided to use Mr. Shite as
a witness. We will not throw that 26(b)(4)(b) consultant
thing in their face. We’re going to give them Dan Shite,
but we are going to object to work product questions. He
is our litigation adviser, and his notes of our meetings,
etcetera -- which the guy is a prolific writer. He takes
notes at virtually every meeting we have. We’re going to
object to that stuff, and we think we have a right to. We
think he does have those protections.
Colonel Herndon, no question. We probably won’t
ever use Colonel Herndon as a witness. He has signed an
affidavit in this case. We're not going to stop them from
deposing Colonel Herndon.
Again, the issue is timing. They have not even
requested sessions to go to the Corps of Engineers. We’ve
talked a lot about it. We --
THE COURT: Then what’s your concern there? If
they’re ready for his deposition without those documents,
what’s your concern? That it would result in a second
deposition?
MR. HARRISON: Of course. There is no question.
There’s fourteen file cabinets full of documents up there.
Colonel Herndon is an extremely important man.
He serves in the Pentagon now. He was the former District
37
Engineer here.
It simply doesn’t make sense to begin this
precedent of happening in this case. If you begin it once,
it’s going to escalate into arguments that they have a
right to continue to go to depositions before they’ve even
attempted to narrow the scope of the deposition or even
attempted to review documents which really will be relevant
to that deposition.
If your Honor down fell that they should be able
to depose these witnesses now, especially Herndon because
they haven’t looked at his documents, we would certainly
request an order that -- it was their risk. It was their
decision -- they have waived any opportunity to depose
Colonel Herndon a second time.
If we start down this road, you’re going to have
every one of these public employees -- they even threatened
to depose the Secretary of Interior, your Honor. We can’t
allow these depositions to what we believe degenerate into
what is truly geared for harassment.
Your Honor, there was a reason we think that they
wanted Herndon so badly at that time, and it was obviously
in support of their Rule 19 argument. They were trying to
get the court to join the Corps of Engineers as a named
defendant. They lost that motion. I think the heat went
off of it for awhile. They do want Colonel Herndon. We
38
are prepared to give them Colonel Herndon, but we believe
that either they’ll agree to do it only once or that they
should go to Jacksonville and at least make an effort to
review the documents and than take Herndon for everything
that he’s worth and be done with him.
We think that all of these public servants have
got be deposed just one time or this case is going to
raise in costs -- escalate in costs, and the Lord knows
it’s already cost the taxpayers a lot of money. Okay. All
right. That is our -- the fourth point.
I think that another critical point on these
depositions is that, once they begin -- all parties now are
essentially fixed in this courtroom. Sugar is on appeal to
the Eleventh Circuit, but their lawyers are sitting here in
this courtroom -- Bill, Earl, Tom -- the law firm. I
don’t think that they will be prejudiced. Any documents
they get and any depositions they take are going to be
sitting in the same law office. If the Eleventh Circuit
reverses and lets them in, there’s -- they’ve suffered no
prejudice.
In fact, Sugar right now is under a State public
records request. They’ve gotten about double the documents
that we’ve gotten, and they’re -- the District is
continuing to produce all of the scientific documents that
we still have yet to see. So -- which makes us a little
39
uneasy, because those are also obviously benefiting the
cities of Belle Glade and Clewiston indirectly; and we
believe that that’s another compelling reason to get us up
to the District to see the rest of those documents.
They’re even on their second round of production and
getting updates.
But, back to the depositions, the depositions
have got to bind all parties. I have a suggestion. It’s a
little unusual. We would like the court to consider it.
The plaintiff -- if we want to notice a deposition of the
defendant or the defendant intervenors, we will take it
upon ourselves to work out an agreement with our plaintiff
intervenors first as to a date, and then we will try to
work a date and notice the depositions for the defendants.
We’re willing to do that. Whether the court has
the power to order it, we’re certainly willing to encourage
that to try to schedule these things -- the scheduling may
become a nightmare -- if the defendants will agree to the
same thing, to where they will at least make a good-faith
effort to coordinate the defendant intervenors, notice us,
and work out the dates. Hopefully that’s going to prevent
us from continually coming back to this court.
THE COURT: What’s the status right now with the
intervenors and with the motion to dismiss? Has that been
decided --
40
dismiss has been decided. All five counts have been upheld
by Judge Hoeveler. We are now in a lawsuit on all five
counts. There --
THE COURT: With all parties in the suit?
MR. HARRISON: All parties -- what we have now is
the United States, of course, as the plaintiff. We do have
all of the plaintiff intervenors that came in by
stipulation. The defendants, of course, are DER and the
Water Management District. The defendant intervenors that
have been allowed to intervene are the Cities of Belle
Glade and Clewiston. The United States did file a motion
to limit that intervention. We didn’t want them litigating
under the name of Belle Glade for all of the economic
reasons that the agricultural interests might want to
litigate. They represented to the court that their primary
interests were water supply and flood control as it affects
the cities. Judge Hoeveler granted our motion for
intervention.
I will give them this. The wording is a little
oblique. In the order it says that he’s letting them in
for all issues, but in earlier -- if you read both of the
orders allowing the interventions of the Cities of Belle
Glade and Clewiston, I think that you can only read them in
that he granted our motion to limit. If they’re in for all
41
issues, period, and not simply water supply and flood
control as it affects the cities, then we didn’t win that
motion.
THE COURT: What’s you concern then about
depositions as far as binding all parties, if they’re
now --
MR. HARRISON: It’s the timing, Judge. It’s
just -- it’s primarily just preventing duplicate
depositions. That is -- that is going to happen in this
case. We’re going to notice the deposition. Someone else
isn’t going to be able to be there, and they’re going to
try to notice the deposition later.
There has to be a procure where there’s
good-faith efforts to schedule the depositions. And the
Manual on Complex Litigation, which some of that is
referred to in the second report of joint scheduling
conference that we’ve filed, has suggestions about no
simultaneous depositions in different cities. In fact, we
don’t want simultaneous depositions anywhere.
It’s simply scheduling it so that everybody gets
an opportunity to be at the deposition, so you don’t have
constant objections that, "We didn’t get our chance. Now
we want to depose them." And the people that are going to
suffer aren’t the lawyers nearly so much as the deponents.
THE COURT: Well, it doesn’t seem to me that
42
there’s -- I’ll hear what the defendants have to say about
this. But it doesn’t seem to me that there are that many
parties, that many lawyers, and that many persons involved
here that -- or as far as lawyers are concerned, that a
date could not be worked out for a deposition that all
parties could attend; and therefore, their clients are
bound -- or all lawyers; and therefore, their clients are
bound by those depositions.
MR. HARRISON: I do agree. We expect that at any
of the important depositions there will probably be about
eight attorneys, and what we think is probably-- this is
just our speculation, but Der one, the District two, we’ll
have two, Belle Glade and Clewiston will probably have one
attorney; and so, we think that there would be mostly a
maximum of eight attorneys.
I don’t think the scheduling is going to be that
critical, but it is going to be a problem , and we don’t
want any whipsawing either. We’re guaranteeing that we’re
not going to let the plaintiff intervenors -- or we’re
going to work to keep the plaintiff intervenors and
ourselves from trying to whipsaw deponents into noticing
depositions for different simultaneous dates.
THE COURT: Well, all parties are aware, of
course, of the notice requirements for depositions. I, in
resolving discovery matters or basically discovery matters
43
in large -- in the see complex suits, a lot of times find
unnecessary motions for a protective order, disruptions of
schedules, costs to clients and so forth in terms of travel
plans, which I think are unnecessary.
I think that -- and I don’t want to be involved.
I see here a provision for telephone conferences to me. I
don’t want to be on the telephone any more than necessary.
First of all, I have no objection to resolving discovery
disputes by telephone. In fact, I do that routinely in
many cases. But, I don’t think it’s necessary -- and I
just make this as a general statement -- to be involved in
the scheduling of depositions because one lawyer can’t be
there --
MR. HARRISON: All right.
THE COURT: -- or because it’s been noticed on
too short -- that the notice has been insufficient.
Those things, I think should be able to be worked
out. I will be surprised and not pleased to have to
resolve when a deposition should take place; or then this
subsequent problem that you’re indicating may occur, and
that is that someone doesn’t show up and , therefore, wants
to take a second deposition. The would be highly unusual
in my opinion.
MR. HARRISON: Yeah, this case is highly unusual,
and I guess we’re a little gun shy. We’re trying to
44
and head off problems, your Honor.
THE COURT: All right.
MR. HARRISON: And that’s primarily where we’re
heading. I think the Manual on Complex Litigation suggests
some odd fifteen days notice for depositions. We would --
we believe that there is -- that there should be some
requirements that there is a somewhat longer than the
five-day normal -- five-- or ten--day notice.
THE COURT: Well, whatever. Whatever. I think
that is the best way , in my experience both as a judge and an
attorney, is that these kinds of things can be worked
out -- secretaries send most of the time doing this --
but, that they can be worked out by agreement. I don’t --
MR. HARRISON: Judge, I’ve been practicing for
thirteen years and have never had any trouble doing it.
We’re a little nervous in this case.
THE COURT: All right. Well, then let’s not
necessarily anticipate that problem until it arises here.
All right. Anything else about the --
MR. HARRISON: Okay. Other that , your
Honor, the binding, we have provided in paragraphs 6
through 8 other dates for revealing expert witness in the
event interrogatories have not been propounded. We think
that --
THE COURT: Well, let me ask you. I think one of
45
the objections -- and I won’t speak for them -- but, I
think one of the objections that the defendants are making
is the requirement for interrogatories prior to the
beginning of depositions; and it seems to me, again based
on my own experience in litigating here, that a reasonable
response -- and I do mean a reasonable response -- to
interrogatories requesting names of witness, if they --
depending on how that’s worded -- but, a reasonable
response is undetermined at this time; and it’s also the
most useless response --
MR. HARRISON: Yes. Your Honor, the only thing
that I guess I would add to that, however, is that I
completely agree with their brief. Interrogatories are no
a good vehicle for discovery of the facts and opinions of a
witness. They’re not sufficient at all to go to trial on
and to prepare for cross examination.
That’s not at all what we want. What we’re
saying is that, if there is not some method, be it
interrogatories or agreed upon dates, where you have to
reveal any witnesses that you know as witnesses at the
time, and if later it becomes that we can prove or they can
prove that we were sandbagging and that we did have
somebody tagged as a witness gut we didn’t name them, then
there is a sanction for that, and you can bar use of that
witness at trial. That’s what keeps lawyers truthful and
46
honest.
And with all due respect, the problem is, if we
do not list witnesses somehow, then we’re looking at abut
a hundred and fifty material scientists at that district.
We don’t know who to begin depositions of. We’re going to
have to start deposing anybody that’s done scientific work
in the area that’s important. Their schedule proposes not
to reveal the identity of any witness until three months
before trial.
THE COURT: Well, I recognize the problem with
that, too, but I’m just envisioning here a problem with
interrogatories. If the interrogatories list all of these
persons that you presently expect to be calling as
witnesses at trial and -- that’s not so bad, it doesn’t
seem to me --
MR. HARRISON: That’s the only real thing that --
THE COURT: -- and this can be given. But, then,
if it goes on beyond -- in the normal further requests,
there are what are their positions, what are their
addresses, and so forth; and that’s easy enough. But, if
it gets into what is the substance of their testimony, what
are the -- and as to experts what is the factual basis for
the opinions that -- what are the opinions and the factual
basis, this seems to me to be a bit premature for answering
some of those questions at this stage of the litigation --
47
MR. HARRISON: Your Honor, I tend to agree.
They’re certainly not going to have the substance
well-formed, but, for example, they will know that -- let’s
say that George Marban (phonetic) is their hydrology expert
and that the substance of his testimony or category of his
testimony is going to be the hydrology and the hydrologic
modeling of the system. That’s really all we expect at
that point in time.
We realize that through interrogatories is not
going to be the discovery vehicle, but what is important is
that both sides aren’t required to begin guessing who the
witnesses are going to be, so they start noticing virtually
every scientist at the Corps and at the Park. We think
that it an gravely eliminate -- when this thing gets
closer to trial, regardless of whether we might like to
depose all of their scientists, we’re going to be forced to
home in on witnesses. If we don’t know who those witnesses
are, we’re guessing; and if we only learn the identity
three months prior to trial, we may have missed some, and
you’re in you trial preparation final phase.
THE COURT: Well, I understand that concern, but
I don’t want this to bog down into motions to compel better
answers to interrogatories either.
MR. HARRISON: No, and I wholeheartedly agree.
And that’s why I have said that, one I am going to stand
48
here right now and waive any of our experts in our case in
chief once they propound interrogatories to ask us to
reveal the identity of the witness and a basic little
summary of the area that which he is going to testify.
The Rules technically require, if they then want
the report or a deposition of the witness, they have to go
through the 24(b) -- 26(b)(4)(a)(ii) motion for further
discovery. Never in my life have I required that, and we
don’t intend to do it here. Right now I will stand here
and waive that for the experts that we call in chief. I
won’t agree to that in advance for rebuttal experts or for
perhaps expert consultants, but for experts that we will
identify all they have to do is propound an interrogatory
that says who they are, we’ll give them a brief summary,
and then they get a deposition. The deposition is the
discovery vehicle for answers.
We don’t want to impede discovery at all, but
without knowing who to depose, Judge, that’s going to
impede discovery, because you’re going to be deposing
people you don’t need to depose. You’re not going to know
in what capacity the witness is when you go in to depose
him -- is he a fact witness, an expert witness -- or if you
noticed a consultant that they really don’t want to turn
over. These things have to be ironed out.
The Rules were passed for a reason. That
49
expedites discovery to simply find out who the witness is,
what his capacity is gong to be, and one lousy paragraph
as to what he’s going to testify to. That’s all we really
want on interrogatories.
THE COURT: And I also see that on your proposal,
on the proposed pretrial discovery schedule, the latest
here, that you make a provision in there for further dates
for identifying additional experts --
MR. HARISON: Yes.
THE COURT: -- as late a December of 1990 as
revised --
MR. HARISON: The reason we did that, your
Honor -- I know there is a continuing duty under
interrogatories -- (unintelligible) interrogatory duties,
but lawyers get busy, and we realize that, and we also know
that Mr. Rogers -- Pete Johnson for the defendant -- seems
to detest interrogatories. They may choose not to send
interrogatories. If that is true, then we will be bound by
certain dates to reveal experts that we have at that time.
If they choose not to send interrogatories, they have a
vehicle to find out the identity of witnesses. That’s the
whole reason for all of that -- is to find out witnesses,
so we can begin depositions in a logical manner.
THE COURT: Both fact and expert witnesses?
MR. HARRISON: Yes, your Honor, I think that it
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should be fact and expert witnesses. As an attorney going
into a deposition, you need to know that to even know what
kind of questions you’re going to be asking -- opinion
questions --
THE COURT: But, it may also be that witnesses
may be identified as experts either early on or later ---
MR. HARRISON: Exactly.
THE COURT: -- and that you may wish -- for
example, a -- either side may identify someone as a fact
witness who then subsequently becomes an expert witness for
one reason or another. That then --
MR. HARRISON: If that happens, then there would
be good cause, your Honor, for being -- to re-depose and go
to opinion questioning.
THE COURT: Because I can see that the
interrogatories you anticipate, although it doesn’t say
here, would be list those fact witness and list those
expert witnesses; and it may not be possible to know that
at this time.
MR. HARRISON: No, and it’s not, but in a case
like this, where we’re wanting to get to trial in about a
year, we have to start now. We can’t wait six months down
the line to discern that information. Even if they can
just tell us four or five now and we tell them four or five
now, we can begin now.
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THE COURT: I agree with that, but I think I’m
leaning at this time to not -- well, I’m not quite sure
that I see the reason, although July -- you know, how
quickly these dates turn over -- but, that depositions
couldn’t begin before July. I know the defendants want to
depose at least three identified persons at this time --
MR. HARRISON: Yes.
THE COURT: -- and I believe they’re ready to do
so and, I think, also would state, although I’m kind of
speaking for them, that they’re not anticipating needing
these documents or else they’re certainly not anticipating
having to reschedule or continue or to set a second session
for those individuals based on those documents.
MR. HARRISON: Your Honor, in on degree you’re
correct, in that they have now received the Loxahatchee and
the Park documents. From that standpoint I assume that
they’re reviewing those documents, but they at least have
the documents. They have met most of our objections for
deposing Dan Shite and Mike Finley. I would ask that, if
they do that and they haven’t truly reviewed the
documents -- it’s up to them, but if they do that, they’ve
got them. They had their bite at the apple, and they can
depose them.
There is one other consideration, though, your
Honor. There really aren’t that many lawyers on this case
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on either side. I mean they say we have ten, but I think
your Honor knows the way it works. You’re looking the
litigators in this room.
We’re going to be spread pretty thin when
depositions start. If depositions begin while document
sessions are still going on -- well, at least while this
first one -- and we don’t anticipate any major second
request for documents. But, if we could finish that
document session by July -- or event he can escalate that,
if there’s any way to escalate that -- then the lawyers are
freed up from the main burden of sitting up there and going
through file cabinets; and then we should be able to take
more depositions closer together that if we’re spread
between documents production sessions and depositions.
There is an internal logic in finishing this first round.
THE COURT: How much remains to be done on that
first round? And I know --
MR. HARRISON: Judge, we have, according to their
estimates, two-thirds of our documents to look at, about
two -- about three hundred and fifty thousand documents
that we have to examine to decide which ones we want to
tag. We estimate that that’s approximately two weeks.
This is also their estimate. Now, that estimate was before
a two-day session in October, so technically, according to
their estimate -- and it fits ours -- there’s about ten
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days that we have to spend looking at documents; and we
use --
THE COURT: Do you mean documents that have been
produced that you haven’t looked at yet or documents that
have not yet been produced?
MR. HARRISON: Yes, these are -- there are three
hundred and fifty thousand, according to their estimate,
that we have never even seen. Now, the procedure of what
we do is we sit there and we go through them as rapidly as
we can, and the ones that we want them to copy for us we
bait-stamp, and we keep an order and an index; and at the
same time, we’re trying to -- devise we’re trying to put
those into a computer litigation system. It’s very
time-consuming.
They have looked at the Refuge documents and at
the Park documents. They have not been to the Corps of
Engineers yet. We’ve offered different sessions, two in
December, one in January, and two different in March. We
discussed it in March, and we're hoping that all of this
can be done by July 1.
As far as I understand, there’s about fourteen
file cabinets up in Jacksonville at the Corps’ headquarters
that they have yet to even look at. Once they look at
those, of course, they’ll be tagging some for reproduction.
And I think that somehow inadvertently about
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forty documents at the Park were overlooked, either by the
copier or they weren’t sent to the copier. We found out
the other day that was some of the source of those forty
documents. We are now looking for those files. A
wholesale file was apparently overlooked; and once we find
that, you’ll be getting those.
But, really what it amounts to is they’ve got
about fourteen file cabinets yet to look at under the first
request; and we’ve got roughly three hundred and fifty
thousand documents, give or take a few thousand, to look
at. So, there is quite a chore left.
And -- I mean I -- this isn’t my only case. I’ve
got five trials in the next two months -- three months, and
Ms. -- as a practical matter, Judge, we’re spread pretty
thin. If we start depositions before we have a chance to
finish these documents, I think it’s going to be pretty
rough to do much of a job on that, but --
THE COURT: All right. Well, let’s leave that
for a moment.
MR. HARRISON : Okay.
THE COURT: You next then have two other
procedural --
MR. HARRISON: Yes, and that’s -- we’ve, I think,
exhausted the schedule, your Honor.
THE COURT: Yes, the schedule and also probably
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what you’ve mentioned as to completing depositions
before -- or interrogatories before depositions.
MR. HARRISON: I would simply like to direct your
attention to -- I mean it’s their schedule, and we’ve beat
it to death, but there’s no way that you can wait until
three months prior to a trial like this to identify
witnesses. We anticipate there will be at least thirty
witnesses on the stand at trial. There’s no way -- their
discovery cutoff, Judge, isn’t until one month before
trial. That’s not realistic.
We’re going to at least have -- there could be
pretrial motions. There’s going to be joint stipulations.
There’s going to be -- we have to prepare witnesses. We
owe that to our client, and we owe that to Everglades
National Park. We’ve got to have some time to prepare this
case properly.
Their schedule is going to lead -- we’re going to
be in discovery wars. We’re going to be arguing about the
scope of depositions, etcetera, right up to the time of
trial. It’s a total freewheeling schedule, and I would
simply commend it -- and I’m sure you’ve read it, but if
you have any questions, just simply put it beside ours and
see which is the more logical schedule from a litigator’s
standpoint -- which one is truly geared to not allowing, I
guess, the truth to be obscured by fighting and infighting
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right up to the brink of trial. We simply can’t afford
that at this point.
THE COURT: All right. What’s the -- in a
nut shell, what is your position as to -- perhaps I’ve
already read it -- or I think I have -- but, that the
discovery must be District-wide? Is there still a dispute
about that?
MR. HARRISON: Well, I think formally there’s
still a dispute about it, your Honor. For example, the
Loxahatchee -- the lease and the MOA documents -- they say
only the legal -- what we did was, when we propounded that
request for production initially, they had given us a
walk-through tour, and we did put it in categories. We
did. I mean we would label the Environmental Science
Division and put what documents we felt were in that
division. The Water Quality Division -- list what
documents we felt were in that division. But, we did make
it extremely clear in that document that we expect them to
be bound District-wide.
Judge, we didn’t sue the divisions; we sued the
Water Management District. And if they choose -- and they
did and we’ve agreed -- to produce documents as they are
kept in the usual course of business, you can’t expect the
United States to glean which file cabinet the document is
in or even in which division.
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The fairness is, your Honor, that we have agreed
that the entire United States Government, all of the --
there are three main agencies that they’re looking at,
which have many more divisions than they do. We’re going
to be bound United States-wide. If they have asked for a
document, if that -- if we have a responsive document in
Jacksonville, in Boca, wherever it is, we’re obligated to
provide it.
Judge, they didn’t even circulate our request for
production amongst all of the divisions. What we did was
take our request for -- their request for production of
documents, sent that to Jacksonville, and said, "Make sure
all of you divisions get it. If you have any responsive
documents start tagging them and getting them in boxes."
We did the same thing with the Park. All of the Park
scientists got to look at it. At least that was our
instructions to our clients, and we believe in good faith
that’s what they have done, and we agree to be bound by
that.
THE COURT: Well, I think part of their concern
is -- here is that -- I’m not sure how many divisions there
are. I think sixteen or eighteen or something like that.
MR. HARRISON: I think they have actually some
odd forty divisions, I believe.
MR. JACKSON: Well, your Honor, we have about a
58
dozen departments, and each department has between one and,
say, half a dozen divisions.
THE COURT: Some of these documents may be
each -- the same document that may be responsive to your
request may be in each of these departments or divisions or
whatever they’re called; and I think one of the reasons --
or one of the concerns that the defendants have here is the
man-hours required to have each division or department look
for the same document and then produce that same document,
if it’s already being produced in a division which they
would contend I believe --
MR. HARRISON: Your Honor --
THE COURT: -- is the most relevant to this
lawsuit and that being south of Okeechobee.
MR. HARRISON: It may well be, and we suffer with
the same problem. I mean there’s obviously numerous
scientists at Everglades National Park that may all have
copies of a dosing study report, but the risk of providing
a couple of extra duplicates -- we have put our people to
that burden. They have, at least twice in the last couple
of years -- and it has nothing to do with hiding things in
this lawsuit -- but, they have been realigning divisions.
There’s no way for the United States to be able
to glean that we want only these documents out of the
Environmental Sciences Division, these documents out of the
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Water Quality Division, these out of the Executive
Division, and these out of the whatever Division. We have
no way of knowing that; and that is an unreasonable burden
that makes it very easy, whether intentionally or
inadvertently, to miss documents.
They don’t have near the amount of divisions in
that building in West Palm Beach as the three United States
Government agencies have nationwide. We’ve got the
Department of Interior if they have any documents in
Washington. We have the US Fish & Wildlife Service, the
Loxahatchee Refuge in Palm Beach . We’ve got the Everglades
National Park which is a huge center down in Homestead.
We have the Corps of Engineers in Jacksonville. We have
their field offices in Miami. The Corps has probably as
many divisions as they do, and we have gone to that burden.
There may be some duplication, your Honor. We
have seen duplication, and I’m certain so have the
defendants, but you can’t expe |