4
THE COURT: I am going to call the South Florida
Water Management case, United States verus, and so forth.
Ms. Ponzoli.
MS. PONZOLI: Susan Ponzoli for the United States
and Richard Harrison is with me.
THE COURT: Good afternoon.
MR. ROGERS: Your Honor, Jim Rogers or the district
Mr.Raferal is with me.
MR. ROGERS: Your Honor, Rick Burgess for the city
of Belle Glade and Clewiston.
THE COURT: I gather there are others here who need
not introduce themselves. I gather you have finished your
hearing with Judge Bandstra and I suggested that you all
come up here when you were finished so that we could discuss
the trial date. So let's discuss the trial date. You may.
Why don't you take the lead.
MS. PONZOLI: Well, I thought I would report to you
what happened elsewhere. We don't have an order. We do
know exactly what the order will say, but it appears the
order will read something along these lines -- Mr. Rogers,
correct me if I am incorrect.
I believe that the order will read something along
the lines that within about 6 weeks the United States is to
designate all expert witnesses and consulting experts that
it has used and within two weeks of that, or something close
5
to that, the District will indicate and the defendant
intervenors will indicate all of their expert witness and
consulting experts.
The court indicated that it would allow one more
opportunity somehow, and he gave no indication of how he
intended to do that, of rebuttal witnesses and then you
could not bring in experts, except with leave of court.
The United States indicated that it would probably
be indicating something like 6 to 8 experts. The District
said, off the top of its head, it thought it might have 40
expert witnesses.
THE COURT: How many?
MS. PONZOLI: 40.
THE COURT: 40?
MS. PONZOLI: Yes, sir. I felt the same way.
Anyway, the defendant intervenors did not indicate how many
witnesses they thought they would have. The United States,
Your Honor, has always estimated about 100 people to be
deposed In this case.
Now, the District is indicating they think it is
double that. I would like to propose that we stay with the
present discovery schedule as modified by Judge Bandstra and
attempt to go to trial following the July one cut-off date.
I am hoping that the District is being overly
pessimistic as to how many people would have to be deposed
6
and that if we kept up a snappy pace and did about ten
witnesses a month, and assuming they lasted roughly two or 3
days apiece, we could be finished in that amount of time.
THE COURT: In what amount of time?
MS. PONZOLI: Well, I realize the court has an
October 15th trial date, but we did have a discovery order
that Judge Bandstra had entered back in April and I will
tell the court that the United States relied upon that
discovery schedule in planning its needs for preparing this
case for trial.
We received in the end of May, the beginning of
June the bulk of the documents from the District. It was
like 180 banker's boxes. We have approximately a million
documents that we are processing through a data base.
We have not finished doing that Your Honor. We are
proceeding with depositions presently at a pretty snappy
pace every week.
We need to pick that up, obviously, if we are going
to finish 100 people in a year.
There are several pieces of critical evidence that
the United States hopes to have completed by early next
spring. Likewise, the District is doing some very important
research on phosphorus in the soil and in the inersticial.
waters and the surface waters documenting the nutrient font
in water conservation In area 2-A.
7
This is work that the United States believes would
be very valuable and shed a lot of light on this particular
case, were we to go to trial at the present discovery
schedule.
I would ask the court to set a trial date, if it
did amend its order past the discovery schedule that Judge
Bandstra had previously entered to allow us a good 3 months
past the cut-off of discovery for all those motions that
will of necessity generate themselves and the putting
together of the case there at the end. I think it is going
to be pretty substantial, if this case actually depose to
trial
Another complicating factor is that we are
designating expert witnesses, in some cases a little
prematurely, as all parties will admit, there was the
discussion downstairs that there may have to be more than
one deposition of an expert.
If he is deposed very early on now, then he's going
to probably have to be deposed again in the spring because
he won't be finished now, and so I think It is a fairly
substantial amount of work that we have in front of us.
THE COURT: There is no point in taking the
deposition of an expert until he is ready to be taken.
MS. PONZOLI: I happen to agree, Your Honor. I
happen to agree.
8
THE COURT: There is too much discovery going on
these days, in any event, but I think that's fairly clear.
There is no point in going at experts piece by piece until
the expert is ready to testify.
MS. PONZOLI: I agree.
THE COURT: Has somebody suggested otherwise?
MS. PONZOLI: Yes, sir. The District felt it
wanted to do these people right away. The United States
preferred to have people indicate when they thought their
experts were going to be ready.
And if I didn't make it clear, I will make it
clear. I would prefer to do single depositions of these
people. I think it will be a nightmare doing 40 depositions
this fall and doing them again next spring.
THE COURT: Well, it just prolongs the case and
increases the expense involved.
MS. PONZOLI: Yes. Mr. Rogers.
THE COURT: Mr. Rogers.
MR. ROGERS: Your Honor, on the ultimate issue of
the trial date, I am not sure there is a big disagreement
here. I think we are both guessing as to how this case can
move along.
I think we have gotten a lot of discovery out of
the way already. We've gone through some enormous document
productions, day, night production. You know how tedious
9
that is with all the computer codes and Xeroxing problems,
and what have you, but we've managed on enormous amount of
documents from them to us and vice versa.
We have started some depositions of experts or
non-experts, depending on how the Government designates
them. I don't want to bother you with our little
skermishes.
We just got through fairly significant hearing on
really our basic gripe about the depositions, namely that we
don't get any answers to questions of data. We don't think
that the people who have been working in the field for 15
years, who are really fact witnesses, can be designated in
some capacity by the Government's consultant, or whatever,
and not answer basic questions, but that's not your problem.
I think we are going to revolve those with Judge Bandstra.
He's going to issue an order.
I think we will be prepared to try the case perhaps
a couple of months earlier than the Government. I think the
present order says July 1st cut-off of depositions. I think
we'd be ready to go a month or so thereafter.
In terms of how many depositions, I don't know if
it is 100 or what it is. We don't really understand what
the Government's case is. Their answers to interrogatories
listed one expert witness and two other witnesses.
Now, clearly they are going to have more than that.
10
We are going to have to respond to that and be a little bit
flexable, but we may be talking about a total of 100
witnesses here. I doubt many more than that,
So, the bottom line, Your Honor, is that I don't
think the parties are in great disagreement, looking in the
crystal ball as to when we are going to be ready to try the
case. I would think a little bit earlier than the
Government's prediction.
THE COURT: You are thinking what, September?
MR. ROGERS: September.
THE COURT: Well, I would like to get it tried
MR. ROGERS: Sure. We are ready to do more than
one deposition a day, if it takes that to get this tried.
THE COURT: Ms. Ponzoli, does September sound good
to you?
MS. PONZOLI: Yes, sir. I think September sounds
fine. I will oppose multiple depositions on a single date
unless there is some shown necessity for that type of
discovery. It is a hardship on Government attorneys and
promotes chaos, frankly, in a case, but I think we will just
have to deal with that as we come to it and see if it is
necessary.
THE COURT: This case, as you are looking at it
now, will take out how long to try?
MS. PONZOLI: I don't have a good feel, Your Honor.
11
I am going to be honest.
MR. ROGERS: Your Honor, I think we could spend 3
weeks to a month putting on the factual evidence.
THE COURT: For the defense?
MR. ROGERS: Yes. What I am predicting this case
is going to involve, to a large extent, is showing that the
District has not violated state law in the respects the
Government said. We have regulated properly. We can go
down their complaint and that will, to a large extent,
involve all of the scientific work, the key scientific work
that has been really the life blood of the District over the
past 4 years.
I don't know how many people, professionals we have
had, maybe 50, 60, 80 people working on nutrient
contamination in one way or the another. The trouble is, as
Your Honor knows when you have experts, and you get into
statistical battles and whether it was student T test or the
Rule of 6s and that can take a whole morning fussing with
some witness. So I think we could easily spend 3 weeks to a
month.
THE COURT: Now, when you say experts then, you are
really referring to people who have not been called as
experts but who have been working in their jobs on the
various projects that we are talking about.
MR. ROGERS: That is really a bone of contention
12
between us. The Government prefers to call those people
experts. We are not going to stand on titles that much. We
are going to try to establish to Your Honor's satisfaction
they are skilled in their profession to such an extent that
you should accept their opinions as greater then lay
opinions.
THE COURT: But they are people who actually
worked?
MR. ROGERS: They actually worked.
THE COURT: They have not been called into this
case to offer opinions?
MR. ROGERS: Many of them have not been specially
retained for this case. They are on the staff, yes.
MS. PONZOLI: Your Honor, in consultation with
other counsel, the Government believes it can put its case
on in 3 weeks.
THE COURT: So we are looking at a couple of months
at best .
MS. PONZOLI: Yes, sir.
THE COURT: Maybe a little longer.
MR. ROGERS: I think the issue that we are going to
have to answer to is the relief question. We've been
troubled by that part of the case. Let's assume, for the
purposes of argument,..that liability is established. Then
Your Honor has to get into what kind of relief is going to
13
be ordered.
That may get into the available pollution control
technologies, economic impact. Let's say the Government
says we have to have permits that say .006 point milligrams
per leter at every sugar cane field. Then we are going to
have to decide to the extent at which we are going to try
the feasibility of that, the economic impact of that.
I think our colleagues, representing the cities of
Clewiston and Belle Glade, are probably going to want to try
the economic impact and probably get into arguments that
sugar people would put forward.
We argue, by the way, before the Eleventh Circuit
the week after next on Your Honor's order that the sugar
people took up the trade association. So we will have some
feel for whether they are really going to be in this case or
not, but I think we ore going to have to face that issue of
whether the cities of Belle Glade and Clewiston are really
going to be trying the economic impact part of this case and
how long that's going to take.
THE COURT: All right. Well, then, I say what we
ought to do is set it for about September, from the sound of
it. You are on agreed on that, I gather or all agreed on
it. Are there any other dissents or any dissents at all
from that?
MR. BURGESS: No, Your Honor. No dissent. I
14
believe the cities also would be ready to try the case in
mid September.
THE COURT: All right. That's longer then I had
hoped, but if it is necessary, it is necessary. It is a
complicated case. All right.
We will get you a date. I don't have a '91
calendar in front of me, but we will get you a date in mid
September and we will set it.
Now, when we set that, I think you can appreciate
that that Hill be set in concrete. This last date obviously
was not, but you are telling me now that you have a focus on
discovery that that is when it can be and so we will simply
not be able to move around a date like this for a case like
this. We will have to work around it. We will have to set
cases around it.
MR. ROGERS: Your Honor, we are ready. I don't
want to leave the impression that we are conceding to the
argument that we cannot do more than one deposition. As the
pressure builds here, we are prepared to do double team. We
think the Government, which is the plaintiff here and which
had at one time or another ten attorneys signing the papers,
we think they should be abe to handle this case.
They have a number of very competent people. They
have interchanged. We think they should be ready to do two
a day.
15
THE COURT: Well, we are talking about a year and
with what we've had in the past by way of background of this
case, I would think that should be enough. So I simply want
to emphasize the point that this will be a very firm trial
date, only to be disturbed by something that might happen in
this division otherwise.
We will be starting another long case --well, a
bunch in the meantime, but I have one case in particular
that could take us quite a while. I don't know that that I
will interfere with this case, though, because I hope to get
that started in early '91, and so count on this date.
MS. PONZOLI: Your Honor, I want to raise one
point, so that if the Government were to move for it down
stream, we would not be accused of having come in with some
new idea.
Their exists the possibility that the Government
might at some time move for a byforcation of liability from
the remedy in this particular case. I mention it only by
way of a possibility at this time. I am not in any way
moving for a byforcation.
THE COURT: But that wouldn't change the trail
date?
MS. PONZOLI: No, sir, it would not.
THE COURT: All right. We can deal with that when
and if it is present.
16
MS. PONZOLI: Yes, sir.
THE COURT: Well, I thank you very much. Is there
anything else you need to take up with me this afternoon?
All right. Thank you for coming up. We will issue an order
setting it for trial. Resetting it for trial.
DATE:___________________________
I, Jerald M, Meyers, do hereby certify that the foregoing
transcription is a true and accurate transcription of my
stenographic notes.
___________________________________
|