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THE COURT: We're here in the case of United
States versus South Florida Water Management, et al., 88-
1886-Civil-Hoeveler, and on several pending motions filed
in the case.
May I have appearances of counsel before we
begin.
MR. ROGERS: Your Honor, Jim Rogers for the Water
Management District.
MR. BURGESS: Your Honor, Rick Burgess for the
City of Belle Glade and Clewiston.
MS. PONZOLI: Susan Ponzoli for the United
States.
MR. HARRISON: Richard Harrison for the United
States.
THE COURT: All right. I have read the
plaintiff's motion for a protective order which relates, of
course, to the defendant's motion to compel certain
discovery, and I think we'll start with that.
Because I have read it and because I think I see
what the issues here are -- of course, what I'm interested
in doing is resolving this discovery problem and scheduling
problem so that when I ask you to state your positions --
and I will ask you to summarize it for me -- but if there's
been any subsequent events since then, either aggravating
the situation or, perhaps, in which the attorneys have
3
spoken and can suggest a resolution as to all or a portionof
this, of course I would appreciate hearing that.
Let me tell you that before we get into a hearing
with Miss Ponzoli, that I have spoken with Judge Hoeveler
this morning and I know that one of the problems here
concerns the trial date and the scheduling order that has
been entered.
Judge Hoeveler -- and trusting that this
agreeable, or available, to everyone here -- Judge Hoeveler
is scheduling a status conference in this case at 3:30
today.
I hesitate to tell you that time because I don't
expect our hearing to go that long, and it won't, but he is
going to hear from the attorneys, taking a recess from his
criminal case, and talk with you all about the scheduling
matter in this case, or the status in scheduling a trial
date and so forth.
As we all know, there is a scheduling order which
provides for a discovery cut off date in July of next year,
and he has entered an order scheduling this case for trial
in October.
I won't speak for him, but I think that one thing
was clear when I spoke with him this morning and that is
that I don't believe that he is intending to go ahead with
a trial in this case in October.
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Now he may alter or change his trial dates. It
will depend, I believe, on what the attorneys say to him.
He asked me if the attorneys are ready for trial and so
forth, and I tried to update him as best I can from my
understanding of the work that's been done and the work
that remains in the case.
But he would like to see you, and would expect to
see all the attorneys in this case at 3:30 here today. I
told him that perhaps some attorneys might not be present,
but he would like to hear from all of you that are present.
I would also preface -- before I ask for your
positions, it seems to me that one of the problems in this
case might be the scheduling order that's here. I think
that was the point made by -- Miss Ponzoli is shaking her
head -- but I thought it was a defendant that made that
point.
MS. PONZOLI: I think we both agree.
THE COURT: And, so, I would also appreciate any
suggestions that you might have to changing the scheduling
order.
I think the order is -- or rather the order of
events in that scheduling order is fairly standard in
setting dates for written discovery and then for a later
identification of experts and witnesses, and there is
nothing in the order that requires the identification of
5
documents which the parties intend to use at trial.
It appears to me that perhaps -- and I'm not
talking now about the ultimate discovery cut off date and a
trial date because I think that will be determined by Judge
Hoeveler -- but it appears to me that perhaps it would
facilitate both sides in this case to move up at least the
dates for identification of witnesses and experts and
possibly setting a shorter date for the listing of
exhibits.
One of the concerns I know that the defendants
have in this case is a 59-page, I believe, list of
privileged documents, and we're going to have to address
that some here today.
It would appear to me that a good part of this
particular matter, that being privileged documents, might
depend, in large part, on those documents which the
plaintiffs intend to use at trial.
Obviously a document that would be used at trial
would not fall within a privileged list.
But, otherwise, I want to go ahead with this, see
what your ideas are on resolving this matter, and as I see
it, of course -- and I tell you again that I'm familiar
with it -- that we have concerns -- the attorneys here have
concerns over the scope of deposition, particularly as it
relates to the case agent, the interrogatories and what the
6
defendants view as insufficient answers to those
interrogatories and also a question of these documents and
how to resolve a privilege.
I am still -- I have the other matters still on
my desk, that being those documents that were inadvertently
disclosed according to the plaintiffs, and I will be
entering an order on that very shortly.
I don't think we need to hear about that anymore
today unless you really feel like there's something that
has to be said about that.
Let 's hear from Miss Ponzoli -- Mr. Rogers, you
have something to preface this?
MR. ROGERS: Your Honor , with all due respect,
we think that the motion for protective order is moot. We
believe the issues that are before the court today are
plenary discovery issues going to the failure of the
government to provide facts and we believe that this
hearing will flow a lot more smoothly and more orderly if
we are heard first.
It's our motion which is really the heart of this
proceeding, and we think we can get off on tangents on the
Sheicht (phonetic) deposition, that has taken place, a
record has been made of all objections. Those objections
were incorporated in our papers and with all due respect,
we think it's our motion that really is the reason for
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being here today and we would like to argue it first.
THE COURT: Any objection, Miss Ponzoli?
MS. PONZOLI: Well, I think that the court said
do you have anything that will facilitate this hearing, and
I think I do have something that will facilitate the
hearing. With all due respect I would appreciate going
first.
I'll address briefly my motion for protective
order and those issues that I think will facilitate some of
ours and defer to Mr. Rogers to do his motion to compel,
and then I would respond to that. If that's acceptable.
THE COURT: Well, I'm not sure that it's moot, it
may be, Mr. Rogers. But let's hear shortly from Miss
Ponzoli. I'm not going to spend time as to who should
speak first. We'll hear first from Miss Ponzoli.
MS. PONZOLI: I was unclear, your Honor, if you
want me to address anything on the scheduling order or not,
or just simply wait for Judge Hoeveler?
THE COURT: Well, what I'm saying is that it
appears to me that we could facilitate some of these
problems by moving up some of these dates. If this is in
fact a case that's going to heavily rely on experts, which
it appears that it is, and if those experts are not going
to be identified until April 1 I think, of 1991 with a then
three-month period of time for depositions, it certainly
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seems to me that if both sides are aware of who their
experts are -- and I think the defendants have already
disclosed theirs, or seem to be more willing to do so, that
-- at least from the papers -- that a concern that I have
in reading this is why can't both sides disclose more
experts now so that that discovery can be completed. And
it seems to be, just reading this, that it's the
defendants' willingness to do that and the government's
unwillingness to do that is of some concern. So why don't
you address that as well.
MS. PONZOLI: Well, I think that that's a very
interesting perception from the briefs that I think I would
obtain from the briefs also.
The fact of the matter is they have revealed
virtually no experts to us.
We have sent our expert witness interrogatories
only recently, but we have for months offered to do
simultaneous exchange of these key experts on --
THE COURT: Can that be done now?
MS. PONZOLI: Pardon?
THE COURT: Rather than getting in to who's going
to do it when, can that be done now?
MS. PONZOLI: I'm going to do it now. That's
what I'm getting ready to do. I'm going to unilaterally
give them my two key experts.
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They have completed their main body of work. The
objections during the depositions -- now that does not cure
all the problems, Judge Bandstra, it only cures -- well,
for those depositions it cures 80 to 90 percent of the
problems because they all centered around two key
consulting experts whose work was not finished.
The District has refused to do this simultaneous
exchange. I'm offering my two today. But I believe that
if we go back to when we did our discovery plan in the
beginning, if you recall, the government argued for a
three-tiered discovery schedule: everyone would reveal a
first round of experts, downstream there would be a second
revelation -- maybe a couple of months; the third
revelation would only be rebuttal experts to one of the
first two revelations, and everybody would have everyone's
experts in plenty of time to depose them and to have the
underlying data to analyze it and to obtain the opinions,
the reports, et cetera.
The two critical experts who were the subject of
so much dispute in those depositions and actually would add
to the answers to the interrogatories in a substantive way,
are Dr. William Walker, who has done analysis of the data
at the Water Management District -- you need to understand,
he has not created facts of his own, he has only created
his analysis, and what his analysis will show is that there
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has been, over time, from 1978, a 5 to 22 percent increase
in the phosphorous at the inflows to Everglades National
Park. That's going to be the crucial part of his testimony
and he will be subject to deposition on that and we will
supply those privileged documents that are his data, his
reports, his opinions.
I believe that there properly may be -- and I
will tell you quite frankly, with half an hour to argue and
500 documents on the privilege list, it's pretty hard to go
through every privileged document.
THE COURT: Well, that's what I was going to ask
you also. Two things come to mind as I hear you say this
and I'll just interrupt you if I might, but the first is if
this and your second expert -- first of all, have these
names been disclosed or is this the first disclosure of
these names?
MS. PONZOLI: This is my first disclosure. These
names are known to them from other sources or other ways.
THE COURT: But this is your first designation --
MS. PONZOLI: I'm tagging them now.
THE COURT: But that will take care of, perhaps,
some of the documents that you have classified as -- that
you have considered privileged and put on the list.
MS. PONZOLI: Some, but not all. Let me tag my
other witness and then move on --
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THE COURT: All right.
MS. PONZOLI: -- to the problem that this does
not resolve.
My other witness will be Dr. Ron Jones who has
done phosphorous uptake tests in the soils downstream from
the inflow structures at Everglades National Park. And his
work is going to show that at those inflow points there is
approximately an eight-fold increase of the background
levels of phosphorous.
In other words, it is elevated eight times what
it should be in a natural oligotrophic system.
You must go, according to Dr. Jones' test, six
kilometers into the park before you can get back to a
natural phosphorous background. In his opinion it will
take hundreds, if not longer, years to -- if you were to
cut off all phosphorous today, it would take that long to
return the park to a natural state.
And I would turn over from privileged documents
for Dr. Jones his data, his reports, his opinions.
What this does not resolve, your Honor, are my
consulting experts who are in house or outside, who have
not completed their work.
THE COURT: And are they also expected not to
testify at trial, is that what you mean --
MS. PONZOLI: They are a real mixed bag, your
12
Honor. There are some who will never testify at trial.
They advise me on either liability or they advise me on
remedy. Some may advise me on both, but I may never bring
them to trial. Some I will bring to trial, but I have not
determined in what way.
The more problematic people, and the ones who
appear at length on the privilege list, are in-house
consulting experts who are doing research, that research
has gone on hold for a number of reasons, but one of the
reasons was the prolonged drought that we have suffered
here in South Florida.
Their work will not be complete until early next
spring.
We have relied upon the discovery schedule, but
that will be insufficient time for trial. I believe that
it's important that that work be available for trial.
I also believe that it is improper, under
26(b)(4)(b) for me to have to turn over their work, or a
premature revelation of their work, so that the other side
may begin rebuttal before these people have even firmed up
their opinions or firmed up their research results.
I think there are a couple of issues, but I
really do not believe that they are that much in dispute.
For my outside experts, my consulting experts
outside of the federal government, I believe the case law
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supports not even turning over their names or their
identities or anything else.
I can cite for you the advisory rules that will
support that conclusion. They have to show an exceptional
circumstance to need that identity of these people who will
never be used at trial and are not generating data or any
other scientific work, they're advising the federal
government.
As far as the in-house experts go, there is
substantial case law that supports that in-house consulting
expert who is doing work only for the litigation, that
piece of work has been done with a total view to proving
the federal government case at trial, that that is
protected until such time as it reached a level of
completion, I or other Department of Justice lawyers look
at it and we say, yes, this will prove our case; we're
going to tag it, we'll turn over the data, we'll turn over
the results.
The Marine Petroleum supports that, the
Cipher (phonetic) case supports that. The cases that have
been cited by Belle Glade and Clewiston -- I think it's the
Nebraska case, the Virginia case, they're based upon the
analysis that an in-house expert is not impartial. I think
that's a rather old fashioned and naive analysis. I don't
think it's very good reasoning, that someone who devotes
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himself for a federal salary to doing work is partial, but
someone who's paid an exceptionally high salary from the
outside becomes an impartial person.
I believe there's substantial public policy for
allowing in-house experts to be protected by the
26(b)(4)(b) protections until such time as they're tagged.
THE COURT: Well, let me ask you, if you were
sitting here you would resolve this -- and I suppose it
would be in your favor, but -- what they're saying, of
course, Mr. Rogers and the other co-defendants, are saying
is that assuming that a person is falling in, and would
fall into your in-house consulting expert, or an outside
consulting expert, one of the things that Mr. Rogers is
saying, I believe, and the cities of Belle Glade, that
this, then, puts a protection over many of the documents
that they believe that they should be entitled to, and that
you can't just blanket by calling somebody and expert, a.
potential expert, protect against the disclosure of
documents which are being collected in the regular course
of events and business and so forth, and that they need
these documents and that they would be entitled to these
documents.
Had it not been for a possibility of -- well, had
it not been for, I guess the classification of these
experts or perhaps the lawsuit itself, but you know their
15
point as well as I do.
MS. PONZOLI: I understand it. I understand it.
I think there is -- the key point is that they're doing it
in their regular course of events, and that is not the
case.
THE COURT: I think that's the point that Mr.
Rogers has argued -- or someone has argued -- to me, that
shouldn't they be entitled to those documents. In fact the
cases that they cite to me say that documents which are
produced, particularly those documents which are of
scientific technical data type reports that are produced in
the regular course of business or operations of the
plaintiff, should be produced. That they would not fall
within privilege.
You obviously disagree with that.
MS. PONZOLI: No, sir. I agree with that.
THE COURT: Well, how, then --
MS. PONZOLI: If they were produced in the
regular course of business. That's the key.
THE COURT: Okay, well, then the next question
is, as I look at your list, how am I to determine that? If
there is a particular document which may fall within -- how
am I supposed to determine that?
MS. PONZOLI: I think I have to -- if you want, I
will bring you -- I can understand your position, your
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Honor -- I guess I feel that when I tell you that I have
given this expert this task to do in preparation for trial,
that question's going to be asked downstream, it's going to
be asked by Mr. Rogers and by Mr. Earl and Mr. Burgess, and
I'd better have told you the truth because I'm only as good
as my word.
THE COURT: You would not -- you're not
suggesting that I go item by item on these 59 pages, but
rather you're saying that you have the right to designate
certain documents as privileged and there shouldn't be a
further inquiry into those documents at all?
MS. PONZOLI: No, I think if someone is
uncomfortable we can have an in camera viewing. If you
want me to file affidavits by these scientists that this
work is in fact done for the litigation, I have no problem
with that.
There is one piece, one single piece of work that
has been designated as privileged that was begun in a sort
of a dual capacity, in anticipation of litigation and as a
further follow up for the nutrient uptake study; that is
the only piece, your Honor, and that piece is turned over
with Dr. Jones because Dr. Jones happened to have done that
work.
Ms. Aherne, in her affidavit -- I'm sort of
jumping ahead and I had intended to try and preserve Mr.
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Rogers' right to do his motion to compel somewhat in whole
-- Ms. Aherne's affidavit is very troubling. It is
inaccurate. I can take it and I can go through step by
step with you.
Ms. Aherne misunderstood, misinterpreted, Mike
Rose's answers, But I believe that it's disturbing beyond
that because in my interview with Mr. Rose, he was
interviewed out of the earshot of his attorney. When he
took the Skadden (phonetic) attorney, Ms. Aherne, into his
office to show her maps and various things, she asked him
questions. She misinterpreted his answers. She's now
filed an affidavit on he- misinterpretation.
He's not a long-term employee of the park. Those
are not the only projects he works on. He was responding
to maps on the wall.
I mean, I can take the affidavit and go down it.
I can have Mr. Rose file an affidavit. I can show you the
documents.
I'm not sure that showing you the documents will
satisfy whether they were done for litigation or not.
Maybe dates would show you that they post date the
complaint. That might give you some level of satisfaction.
What would you want to satisfy you?
THE COURT: Well, I don't know, because these
documents, all I can see are a lot of inquiries for many of
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these documents and some are described in a way that would
suggest that they clearly a court product, especially those
documents which you prepared yourself.
Other than that, I don't have much to go on other
than your word as to what documents are privileged and the
reason for that privilege.
And I'll hear from Mr. Rogers or the defendants
too as to how they think I should deal with this privilege.
I just wanted to know what your --
The other concern that I have -- and obviously
I'm (unintelligible, too low) too -- but it seems to me
that a great deal of this discovery, even though we've
expanded this time out and Judge Hoeveler may well shorten
that down this afternoon, but even though we've given this
time over there is still a great deal -- I know a lot of
documents have been exchanged, but I'm reading that the
government has 100 witnesses and so far has disclosed far
short than 100, and we don't have a firm date yet for
disclosing witnesses, but is this whole thing going to all
of a sudden become monumental and impossible in April?
MS. PONZOLI: Your Honor, what the government has
said -- and no one has contradicted us I would like to
point out -- what we have said repeatedly is that we
estimate there are 100 witnesses who will be deposed in the
course of discovery.
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We have some 20 odd scientists out at the park
and maybe 10 more administrators, all of whom whose names
have come up in depositions in Mr. Rogers' inquiries and
Belle Glade's and Clewiston's inquiries.
I have no reason to believe that they will forego
deposing these scientists as we move along in discovery
when some of these initial matters are resolved.
My representation of 100 depositions, which no
one contradicts to you, no one says, "No, Judge Bandstra,
we only need 20 depositions; just give us these S and we're
ready to go," my estimation is that half of those
depositions are of District scientists, and half of them
are of federal scientists. Maybe some for Belle Glade and
Clewiston falling in there because I think they have
outside experts also.
I think that whatever you decide to do with
consulting experts and trial experts I would honestly ask
that you do across the board and not leave the federal
government at a disadvantage, having revealed all of its
experts.
I have to date now tagged four of my key experts
for trial. I don't have a tagged expert from either of the
defendants. And while I have offered repeatedly that we do
this, I have been denied that opportunity.
It was argued before that we have to give them
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our experts, they have to see what all of our experts say
and then they'll decide what their experts are going to
say.
I'm giving mine first, but I think that pretty
shortly they know what their experts are going to say.
They've had people coming to meetings who do the same type
of work that my experts are doing: trend analysis of water
quality, phosphorous uptake in soils. In their heart of
hearts I believe both of those defendants know right now
who they're going to call at trial to support their theory
of this case. And I think if they're going to say that my
data and my consultants need to be turned over immediately
for them to determine the credibility, is what Mr. Grimshaw
says, that's for a finder of fact to determine,
credibility.
Ms. Aherne from Skadden says she wants to mount
her defense. I think she's being pretty candid. That's
what it's for, is to mount a defense.
I think these things ought to be simultaneous.
When the District says that it's an open book, quite
honestly, your Honor, that's not the case.
We did a computer session for them where we
revealed how our computers work and what the individual
scientists have and what's on their systems.
We could not get what would satisfy us from them
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in the regard, and so we noticed 30(b)(6) depositions.
As you know from the pleadings, there was a flap
about where they would be taken.
We eventually agreed to go to West Palm Beach
because they had so many people that they said they were
producing.
In the end they produced 30 people, 20 of them
were nonresponsive.
When those transcripts come back we will be
filing a motion to compel. We can't even find out how
their computers work and what their computer systems do, so
I don't think that everything is as it appears on the
surface in this case in discovery. I think there are a lot
of undercurrents that are running around in both
directions, that are our real problems and we're working
our way through it.
Do you have any --
THE COURT: Let me ask you -- I heard from Mr.
Rogers that your motion for protective order is moot; is it
moot?
MS. PONZOLI: Well, he considers it moot because
we went ahead with the deposition and if I didn't get a
ruling from you prior to the deposition, that I'm just out
of luck.
THE COURT: Is that the deposition -- how do you
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say his last name?
MS. PONZOLI: Sheicht.
THE COURT: Sheicht? Has that deposition been
completed as far as --
MS. PONZOLI: No, sir. We went for three
straight, long days, And I would point out to the court
that Mr. Sheicht was deposed for three days. He answered-
I believe you have the entire deposition that's been filed
in the court.
THE COURT: Yes, I've seen it.
MS. PONZOLI: Had you time to look through that,
your Honor, you would see I allowed him to answer numerous
fact questions and even opinions upon the fact questions,
of his factual knowledge.
What I would not allow him to answer was the
identities of our consulting experts, and other privileged
Mr. Sheicht is, in fact, a case agent for the
federal government. He is the equivalent of an alter ego
to the attorneys. He has been here from the beginning. He
helped in the shaping of the complaint. We requested that
he become our case agent -- that was in the summer of '88.
In the fall of '88 we sent an actual letter to the Park
requesting that he be assigned to us on a continual basis.
This is a very scientifically intensive case. It would be
impossible for attorneys without scientific knowledge to
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proceed in that regard.
He has reached the point that while he has some
other duties, he really works 100 percent as a case agent
on this particular case: coordinating the scientists,
helping the attorneys with the science, bringing together
the theories and the way we will present this case at
trial.
I do not believe that what you cannot get in a
straightforward manner out of the federal government, that
has the protection of 26(b)(4)(b), or is work product, that
you can go around the corner and obtain through a
deposition.
Dr. Walker's work is analysis. It's not a fact.
They rely upon Marine Petroleum to say if there's a fact in
Mr. Sheicht's mind they can obtain it. That's like in
automobile accident, if there's a fact that exists out
there no one can hide it. I don't disagree with that.
What I disagree with is obtaining through the back door
what you cannot get through the front door.
They rely upon Marine -- excuse me, I think
you're getting ready to ask me a question.
THE COURT: Yes, I wanted to ask you -- I don't
know that Mr. Sheicht's deposition has been taken since the
filing of the motion for protective or the cross motion to
compel, but has this person now been deposed and been
24
allowed to testify to all facts in his knowledge?
MS. PONZOLI: Well, I think that's probably the
crucial issue, is what is a fact. They think my
26(b)(4)(b) information is a fact. I think what he did on
the nutrient uptake study is a fact. I think what exists
out there in the Park that is not protected by our
privilege work product is a fact. I think what he's done
with water quality data, as he worked over the years there,
is a fact. Among all of that I allowed questioning.
THE COURT: Well, what is it that you haven't
allowed him to do? You say identification of consulting
experts. He was asked about that, you objected to that--
MS. PONZOLI: Yes, sir.
THE COURT: -- and you instructed him not to
answer? And also as to identification of documents, what
you claimed work product documents? Anything else that you
have objected to his answering?
MS. PONZOLI: Their identities. I didn't allow
him to give their test results. I didn't allow him to give
their analysis. All of that information that is protected
under 26(b)(4)(b) or work product privilege, I did not
allow him to give.
THE COURT: It's still later to be determined
whether you're going to have him as an expert?
MS. PONZOLI: Yes, sir. Mr. Sheicht may testify
25
as a fact witness at trial, he may not testify as an expert
witness.
THE COURT: Definitely he's identified as a fact
witness?
MS. PONZOLI: Yes, sir.
THE COURT: If the court were to -- either I or
Judge Hoeveler, and, again, I don't know what he's going to
do as far as setting discovery cut off date -- can this
be move up any? As far as your experts are concerned, can
the date for disclosure of all experts be moved up?
MS. PONZOLI: Oh, I can move up the ones -- I can
move some of them up, but the ones whose work will not be
complete until the spring -- and that's some of the work
that has, like, lists and lists of documents in the
privilege list.
THE COURT: What if the case were to go to trial
this October when Judge Hoeveler has set it?
MS. PONZOLI: I'll have to go without that work.
THE COURT: Okay.
MS. PONZOLI: That's just a fact, Judge Bandstra.
I will not go to trial with that work.
THE COURT: All right, let me hear from Mr.
Rogers and see where dispute lies.
Thank you, Miss Ponzoli.
MS. PONZOLI: Thank you.
26
MR. ROGERS: Your Honor, this is not a
peripheral, small discovery skirmish. This is a fight that
goes to the very heart of this case. It is a fight over
plenary interpretation, plenary rules of discovery. The
government, in effect, wants to put a stay on our efforts
in this case.
There have been various adjectives that apply to
this case, depending on what environmental service you
read: the largest environmental case outside of Alaska,
most attorneys assigned by the federal government, most
important environmental case in the world appeared in one
of the environmental newsletters; on and on and on. Very
grandiose adjectives have applied to this case.
There's no question the government has devoted
enormous amount of resources to describing the case as a
major case.
I want to step back for a minute before I get
into some of the detailed arguments from Miss Ponzoli.
This is a scientific case. It is only a
scientific case. We're going to have very few fact
witnesses. We're going to have, perhaps, a hundred experts
by the time we're done.
We're talking about deciding the fate of much of
South Florida; we're talking about billions of dollars in
assets; we're talking about land use decisions that boggle
27
the mind; we're talking about remedies that are unheard of
in any environmental case; we're talking about economic
affects; we're talking about every conceivable aspect of
biological sciences.
Judge Hoeveler is going to have a very, very
difficult time. He's up to it, obviously, but this is a
case of extraordinary proportions in terms of expert
testimony.
It is not a case where a cruise ship has a fire
and a law firm is hired to go send their attorneys to the
cruise ship to do an investigation to come up with a
report. That case is attached to their pleadings. It has
nothing whatsoever to do with this type of case. This is
all experts. It is all, all high degree of science. It is
a public case. We are all public agencies. We have a few
intervenors. Even they are public in the sense that
they're cities.
We are dealing with public law, public policy.
The public is paying for this case. It is nonsense, let me
submit, for us to be hauling out artificial, wooden rules
to prevent disclosure of facts.
If Miss Ponzoli has to rely on a old case that
cites the negative implication of an advisory committee
minority comment to keep from disclosing evidence of
phosphorous increases in the Everglades, then I submit
28
we're in trouble. We need that information out on the
table.
Each party in this case has a strong tradition of
public disclosure. We're all operating under enormously
broad and liberally interpreted rules to disclose to the
public every conceivable fact.
The rules under the Freedom of Information Act,
for example, provide for very few exceptions. There is
clearly, arching over this entire case, a command from our
various legislative bodies to be open and forthcoming.
I'm frustrated because it seems to me that if I
were the federal government I would feel the responsibility
to put all scientific information out on the table.
I don't understand this argument that it's
premature. I don't understand how we can be standing here
and arguing over scientific work which hasn't been
completed and which Miss Ponzoli says may never be given
the light of day because it may not support their case.
Well, isn't the Department of Justice interested
in putting on the table hard, good scientific evidence, and
it must be good because they hired the people, they're
putting reliance on these people.
If that doesn't support their case, if that shows
that there isn't a statistical increase, I think we have to
see it too, and I think Judge Hoeveler wants all the
29
information to try this case.
This isn't a traffic accident. The rules that
normally apply in those situations simply don't apply in a
case of this magnitude, in a case of this public
importance.
I don't think that gamesmanship or strategic
considerations, or close reading of the discovery rules
have any place in this case, and we have said that to our
client and, your Honor, it is not a fact that we have
withheld any information.
Miss Ponzoli talks about us not having any
experts, we haven't been asked to answer interrogatories;
they aren't due yet.
You will see interrogatories that are a good
faith effort to disclose experts. We're not going to keep
scores of people back in some warehouse and keep saying
we're not sure whether they will or whether they won't--
they may be consultants, they may be experts; we're not
going to play that game. You will see a list, a good
faith list, of witnesses and experts and documents we
believe support our case.
What is the danger of early revelation of
scientific facts? This is repeated throughout their papers
and it was repeated here this afternoon. Is there a fear
over scientific embarrassment if I generate this data and
30
it hasn't gone through four layers of statistical review?
Can't the scientist who's being deposed, can't the cover
letter that transmits that information say, "We haven't put
it through all the quality control"? Are we seriously
going to stand before Judge Hoeveler and try to embarrass a
witness because we got data before he went through all his
reviews?
I think it's nonsense.
We ought to be adults. We ought to exchange this
information and be candid about the status of the
information. We're not asking for reports that are
premature. We are not asking a scientist to write a
scientific paper that he's not ready to write, but we sure
want the available information, the underlying factual
information. And that, by the way, includes statistical
analysis, which is really going to be the heart of this
case.
Are we concerned about erroneous conclusions that
are coming off this data, premature conclusions? There
again, we can handle that. We're not going to be in front
of Judge Hoeveler trying to embarrass a witness because he
said something in December of 1990 which on reflecting,
having gone through it again, he modifies slightly. We can
handle that throughout this discovery.
There's reference in their papers to us taking
31
advantage of their research, and that's a phrase that
appears in many of the cases like the cruise ship case.
If I went to all the trouble of getting an expert
to look at the skid marks and write a report for me, why
should I have to disclose that to the plaintiff? Those
don't apply here.
We're talking about momentous scientific
decisions and it is going to be incumbent on both sides to
reveal all of the information for the trier of fact to have
the confidence he is making the proper decision.
We can't duplicate their research. If they're
out looking at soil samples below the S-12 structures, we
don't just go out and take buckets and start taking soil
and say we duplicated their research.
And let me give you an anecdote to prove that.
Years ago when I was on the other side of this,
wearing an American flag very probably, we were prosecuting
the city of Philadelphia for dumping sewage sludge off
Delaware, and Ratheon (phonetic) Corporation had been
retained to do studies on the metal uptake of clams and
oysters about 40 miles off the coast, trying to duplicate
the government's studies which showed metal uptake in these
benthic organisms, and we were able to show that because
they had a different loran reading, different loran
devices, and weren't able to have the precision to locate
32
their ship, because their dredge that went to the bottom
was different, because they cleaned the lavatory samples
with methylene chloride as opposed to something we used,
because their dredge had a velocity coming up from 200 feet
off the ocean floor which is different than ours, you had
much more spill over from your samples. They were using a
different atomic absorption device, they were using a
different type of gas chromatography, they were doing their
studies according to a lesser order of magnitude; on and on
an on, we were able to demonstrate with one hand tied
behind our back that they were comparable studies.
For scientists to do a comparable study you have
to have the detailed methodology down particularly to the
analytical techniques and the statistical methodology that
is employed.
I don't know what Judge Hoeveler is going to do
this afternoon --
THE COURT: Let me try to get you to be more
specific. What is it that you're wanting now? I've read
this --
MR. ROGERS: All right
THE COURT: You're living with this day to day,
but when I'm hearing scientific data and reports and so
forth, I don't know, really, what is in dispute.
MR. ROGERS: Your Honor, we want your Honor to
33
order that we be allowed to ask deponents questions as to
scientific fact that they are aware of or it's in their
possession; as simple as that.
We want scientific information opened up in this
case, and we don't want artificial restraints placed on it.
We want to cut through all of this expert witness 27(b) --
and I'll get to it in a minute to show why that is illusory
-- we want answers to our interrogatories -- and I will
give your Honor examples of what we're looking for there --
and we want documents that are clearly facts and have no
possibility of being work product privilege.
And if your Honor will just allow me, let me
bring you some specifics and try to flesh out these
examples.
Let me start with the depositions -- well, let me
-- I think it will be more orderly if I start with the
interrogatories because that won't take as long.
When we were before the court -- I think it was
in April -- Mr. Harrison said that he wanted
interrogatories -- remember that? He said it was
absolutely essential, and that we're going to get critical
information from those interrogatories.
During the depositions Miss Ponzoli instructed
witnesses not to answer questions and said, "You, Mr.
Rogers, are going to get information in interrogatories."
34
The interrogatories are then served and we find -
and by the way, the government has testified they've been
working on this case six months before they filed, it so
for practical purposes it's two and a half years old.
"Identify the basis for a claim that polluted
water has destroyed aquatic life essential to the Park."
They identified one non-District publication. In
other words, one publication we didn't have in our own
building; one.
They identified three witnesses. They identified
no exhibits. There is no mention of Dr. Walker, Dr. Jones,
anyone else.
Question 2: "Identify the basis for a claim that
the nutrient-induced destruction of the paraphyten
(phonetic) affects all higher forms of biological life."
"See answer to Question 1."
Question 3: "State basis for claim that
increased nutrient levels have been documented in the
Park." "See answer to Question 1."
"Identify the basis for a claim that extensive
damage to native vegetation in water conservative areas,"
et cetera, et cetera -- I could spend hours.
When they filed comments on our swim plan, your
Honor, which is the administrative proceeding that's
underway, and I think Mr. Jackson explained it to you.
35
THE COURT: Yes, he did.
MR. ROGERS: It goes double spaced, scientific
discussions, page after page after page. We didn't even
have the benefit of -- I don't know -- a tent of this. We
are told no witnesses; we have no documents -- and this is
after they've told the court, and they've told us in
depositions, "Wait for our interrogatories." And having
insisted on the interrogatories.
Now in our papers we raise this issue, I think
fairly strongly. They came back, they devoted two pages in
their responsive papers, and the centerpiece argument on
this issue -- and, remember, this is something they
insisted upon, we didn't want it -- "The United States has
provided far more information by way of its responses than
is normally given through interrogatories."
Let we turn to the depositions. We had a
deposition of Mr. Finley, Superintendent Finley, who, as
your Honor may know, was one of the key protagonists
throughout the past five or six years; I regard him as a
very honorable guy, and I must say he was -- he answered
all our questions fairly and squarely. He just wasn't able
to answer many because he was told not to.
But Superintendent Finley was really behind in a
large part, this whole lawsuit. He had overseen an
extensive, long-term research program examining threats to
36
Everglades Park for years and years. There is a large
group of scientists at the park whose job before this
lawsuit was a gleam in anyone's eyes, was to research the
environmental affects on that park.
"Q Do you recall whether there were specific
research projects addressing the nutrient problem in the
Everglades?
"MISS PONZOLI: I'm going to instruct him not to
answer that question. I think you're going into matters
that are now privileged."
She said later this was protected by work
product, which I don't believe any court has held applies
to oral testimony.
Then later, two pages later, four pages later, it
was protected by governmental privilege.
Through these depositions there were various
objections: work product, governmental privilege, the
private business of the government, inter-governmental
privilege, intra-governmental privilege, legal conclusions
called for or opinions called for. And I think I heard
executive privilege, but I couldn't put my hands on it in
the time I had to prepare for this.
Shifting, internally inconsistent, virtually
unheard of in some cases, objections.
Your Honor, I've been in lawsuits -- as I'm sure
37
you have -- where we've gone through the entire lawsuit and
no one has instructed a witness not to answer a question in
deposition. It's a very rare occurrence, and these became
virtually press conferences.
If Miss Ponzoli didn't like the question, we
don't answer the question.
It got worse than that; one step removed from
that.
We got to the point where Miss Ponzoli would say
to the witness, you can answer that if it falls within the
guidelines I've given you.
So now I don't know what the witness is thinking;
I don't know the real guidelines are, and now I've turned
the whole deposition over to Miss Ponzoli and her deponent.
I've lost control completely, I can't make a record; we
have no idea what's going in this deposition.
This happened, particularly in the Sheicht
deposition, two dozen times perhaps.
The question is the basis for Finley's public
statements that elevated phosphate levels are causing
damage to the Park -- this is page 53.
"A There were come preliminary data that I was
aware of that further supported my statements that we were
receiving cumulative damage to the Everglades resources.
We were receiving elevated concentrations of phosphate."
37
By the way, today's the first time I've heard
that we're going get some of this information, but this is
what we went through when we tried to ask deponents under
oath about it.
"Q Who generated this preliminary data?
Interjection, Miss Ponzoli: "You are right back
to the same circle, Mr. Rogers.
"Q Was that data generated before the lawsuit or
afterwards?
"A After the lawsuit. Well, I'd have to -- I'm
not sure. The preliminary indications -- my judgment and
the preliminary observations that I made and -- and the
District and the core data was all available prior to the
lawsuit.
"Q All right. And just so I 'm clear, is there
data that is not in the public realm that was generated
following the filing of the lawsuit?
"A I was aware and briefed by my staff of
preliminary findings just prior to my leaving the
Everglades.
"Q And were these findings the result of work
that was conducted within the staffed park?
"A No.
"Q Was it conducted by outside contractor?
"A That's correct.
39
"Q Was it work that was conducted in
anticipation, specifically, of litigation?
"A It's yes and no. Some of it was.
"Q One of the reasons was just normal research I
take it?
"A Some was."
I go an with some more questions:
"Q Who was actually conducting the research?"
That's a question he's been instructed not to
answer.
Even the simplest, most innocuous of questions
was met occasionally by this instruction not to answer.
There was a meeting of government representatives
to discuss the Everglades. My question:
"Q Who represented the Corps at the meeting?
"MISS PONZOLI: I've already instructed him not
to answer that question, Mr. Rogers."
THE COURT: Well, let me stop you, Mr. Rogers --
MR. ROGERS: I mean, I have --
THE COURT: I'm hearing this as examples and I
don't know if you're suggesting that I toss out Rule 26 or
work product privilege or other privileges. Certainly
these things exist.
How are you suggesting --
MR. ROGERS: Well, your Honor, I don't think --
40
first of all, other privileges, work product does not apply
to oral testimony. It applies to documents, and that's
cited in our cases --
THE COURT: That I've read.
MR. ROGERS: All right. Then we get to the
Sheicht deposition and toward the middle of the Sheicht
deposition Miss Ponzoli starts using Rule 26(b)(4).
My problem -- I have a lot of problems, but what
she is trying to do is pass her hand over the entire staff
of the National Park Service and the Fish and Wildlife
Service and say, "Whatever you were doing before October of
1988, you are now on special assignment to the United
States Attorney's office. I'm not sure how I'm going to
use you in this case. You may be consultants, you may be
expert witnesses, but one thing I'm sure is all of the
information you've been working on is privileged.
So it is an omnibus grandiose waiver.
The 59 pages of documents that's part of it, the
fact that we can't get names of people, the fact that we
can't ask simple questions of Mr. Finley and Mr. Sheicht
who are fact witnesses, who observed what's been going on.
They are in-house at best. Only one has been designated as
an expert, and that person was designated as an expert in
running a park; I'm not sure exactly what that is.
Our position on Rule 26(b) is it doesn't apply at
41
all. It doesn't apply at all to the people that we've
taken depositions of, and that we have a right to ask these
questions, get facts, and proceed with discovery here.
And we will tussle with Rule 26(b), as it applies
to true consultants some of the time, but I have real
doubts whether they're going to be people who fall within
the traditional confines of Rule 26(b)(4).
THE COURT: What are we talking about here? Are
we talking now about -- what do you want to do, go back to
Mr. Finley and Mr. Sheicht?
MR. ROGERS: I want you to order Mr. Finley and
Mr. Sheicht be brought to Washington and to be made
available for deposition where they answer these legitimate
questions which go to the very heart of the case.
The government has filed a complaint. It made
very serious allegations. We sit down with the complaint
in front of us, ask basic questions: "Do you have data
regarding this or that?" Instruction: Can't answer the
question.
And I'm saying this case is going nowhere unless
the United States government is ordered to start playing
fair and start putting these facts out on the table.
THE COURT: Would that take a determination line
by line, question by question on these depositions?
MR. ROGERS: I don't think so, your Honor. I
42
think if you gave the message loud and clear to Miss
Ponzoli that you're not going to tolerate the use of Rule
26(b) or work product or governmental privilege or private
business of government, or whatever it is, and you're going
to make these people answer questions under oath, I think
we would get on with it. I don't think you need to do it
line by line.
THE COURT: All right. So that takes care of, in
general terms, depositions and interrogatories. There was
a--
MR. ROGERS: Your Honor, let me just -- We're
talking about, I know, the specifics of 26(b), but I would
commend to your Honor a ease which steps back, as I'm
trying to do, Virginia Electric Power v. Sun Shipbuilding
Company, a Judge Warner decision, Eastern District of
Virginia. He had a scientific case. And he said --
looking it the whole context of it, that he was going to
treat in-house experts at least, as ordinary witnesses.
And then he quoted with approval,
"Realistically speaking, the resolution of the
entire case depends upon medical and expert
testimony and opinion. The necessities of such a
case transcend the usual limitations which may
otherwise be imposed upon discovery proceedings.
The primary concerns of courts of justice is to
43
elicit truth essential to a correct adjudication.
To the extent that information concerning medical
and scientific affects is within the knowledge or
possession of the defendants, the court believes
such information should be disclosed."
So we're asking that the depositions be opened up
so that normal questions can be answered, and those include
opinion questions. You can't instruct a witness not to
answer questions because it calls for an opinion.
We can argue later before judge Hoeveler whether
that's admissible, but we have a right to ask about
opinions.
THE COURT: Whose opinions, the deponent's
opinions?
MR ROGERS: Deponent's opinions, yes.
THE COURT: Or his knowledge of opinions of
others?
MR. ROGERS: Or his opinion of what the date
indicates. I mean that may reasonably lead to admissible
testimony.
THE COURT: If a person -- I guess we're talking
about Sheicht, Mr. Sheicht. You're asking for his
opinions-
MR. ROGERS: Right.
THE COURT: -- in this matter --
44
MR. ROGERS: Right.
THE COURT: Prior to his being deposed in this
matter?
MR. ROGERS: Right.
THE COURT: And also are you asking for his
knowledge of the opinions of others, or even --
MR. ROGERS: We're less interested in that.
THE COURT: What about his knowledge of who other
experts might be?
MR. ROGERS: We've asked him for that and right
down the line we've been denied that.
THE COURT: How do you believe you would be
entitled to that at this time?
MR. ROGERS: It's clear from the cases that even
though someone might be protected from disclosure as a true
26(b)(4) expert, the cases say there's nothing that
prohibits -- and in fact a witness is required to answer
the question.
We can gain from witness A who's a deponent
information that he is aware of that goes to the research
and identify of other witnesses, that's what the law, we
believe, says, clearly.
THE COURT: What about my suggestion of moving up
these dates for the disclosure; does that help any?
MR. ROGERS: We're -- your Honor, we've got
45
interrogatories and we are prepared to answer them, so this
argument about, well, I offered to exchange -- we don't
think it's relevant. We're going to disclose our people,
we're going to disclose the exhibits, and I don't see any
need -- we'd love to have the government be forthcoming --
and that's what I think we're talking about -- be
forthcoming in their various discovery responses.
Your Honor, I guess I'm really troubled when not
only are we trying a federal law suit of extraordinary
proportions, we are trying to come up with a swing plan
that actually addresses the problem. I won't say we're the
only game in town, but we're trying to be. We're trying to
answer this question.
This is the most recent draft, this one.
They're sitting down there with document after
document which they label "vegetation data," "phosphate
data," which they're claiming privilege on.
I find it troubling that they're not willing to
disclose that information, not just for the purposes of
this lawsuit, but you would think they'd want to assist in
the state administrative process. You would think that
they would believe that there's enough legitimacy in that
state administrative process that they would want to share
with us information that could be extremely important to
our decision.
46
I want to share with you one anecdote that
occurred in these depositions.
We're in the process of trying to establish
outstanding national water -- it's a part of a statute
Clean Water Act -- and we're going through an
administrative process, the state is, to establish water
quality standards for the structures leading into
Everglades Park.
The government has sent people, namely Mr.
Sheicht, to meetings where there are not just third
parties, but parties who are litigants in this case, and he
has referred to evidence of increases in phosphate in the
Park as grounds that we, the state, should establish
different things.
We ask him under oath what evidence do you have,
and he's instructed not to answer the question.
Well, your Honor, I've gone on. I apologize.
THE COURT: I'll tell you, Mr. Rogers, what I
have difficulty with here is your suggestion that we toss
out Rule 26 simply because of the nature of the case. I
don't know that that is the appropriate procedure to use
here, and Rule 26, in some detail, provides for procedures
-- it doesn't even allow for depositions of experts, some
experts, without permission of the court.
You are now asking through other witnesses, Mr.
47
Sheicht, for example, for him to be compelled to testify
who other experts are and what he understands their
opinions are.
MR. ROGERS: I'm asking him for his understanding
of facts which -- I don't think we've asked for opinions
from other people, I think we've asked for understanding of
facts. "Mr. Sheicht, are you aware of data which shows
phosphorous increases?" I think that's pure and simple
facts.
THE COURT: I don't have a problem so much with
that kind of question, but it's the kind of question in
which he is asked his opinion and I guess maybe you're
classifying that as a lay opinion versus -- I don't know.
MR. ROGERS: Yes. No, I'm not trying to classify
it as expert opinion, I'm saying that's opinion we can deal
with under the Federal Rules of Evidence, but he's in
possession of an enormous amount of facts. He's been
witness -- I'm not asking --
THE COURT: Is there no such thing, then, as
materials prepared by the plaintiffs in this case that were
prepared in anticipation of this litigation?
MR. ROGERS: Surely, surely. But I don't think
that reams of computer vegetation data and reams of other
data come anywhere close to that.
I guess what I'm most troubled about; we don't
48
have before your Honor an actual specific instance of a
true outside expert who was retained clearly for the
purpose of this litigation.
What is most troubling to us is that all of
these in-house experts, all of the park service people,
everybody in the Department of Agriculture -- your Honor,
they designated all of the Department of Agriculture
documents, all of them, as privileged.
All the government people who were working
routinely for the government on research before this
lawsuit have suddenly become Rule 26(b)(4) protected
people. And if I was going to draw the line, I'd draw it
there. But I'm making a different point, and what I really
started with is this:
I think when all is said and done and we try this
case, it's going to be incumbent on the court to order all
the information put on the table. And I don't think
anyone's going to be prejudiced by it, and I think we're
spending an enormous amount of time arguing about it, and
I'm sure you've tried enough cases. When you're done and
look back on a lawsuit, and you look at all the briefs you
filed on this issue and that issue, why didn't you just
share the information? When you're done you have -- 99
percent of the data is relevant anyway and you have a few
key studies, you have a few key people. And I think we
49
ought to get rid of all of this artificial restriction on
discovery.
But if your Honor is going to draw the line on --
THE COURT: No, I'll tell you, Mr. Rogers, I am
as interested, probably, as anybody else -- and I'm not
saying that the plaintiffs aren't -- to having full
disclosure and full discovery of everything that should be
discovered here, but I'm not prepared to simply toss out
the rules in this case and say they don't apply -- either
common law or Rules of Criminal Procedure -- and say they
don't apply just to get everything on the table.
MR. ROGERS: Well, then, your Honor, I think the
government has an obligation to come forward and instead of
just instructing witnesses not to answer and filing papers
which say, "privilege," they're the ones -- the privilege
is an exception to the rules of discovery.
We shouldn't be the ones that have to fight
uphill.
THE COURT: It may be, however, that in a case
like this the privilege is not an exception. It may be, if
it's all scientific, if it's all opinion and so forth, it
may be that this is a case where there would be more
objections.
I'm not suggesting that it is or that these
objections are right or wrong.
50
MR. ROGERS: If Rule 26(b) is going to be applied
to the in-house experts, then we're just going to sit
around until they're ready to reveal the results, which I
take it they're going to reveal if they're favorable.
THE COURT: That's why I was asking -- and I
don't know that it's possible -- but I was asking -- at
this point asking -- whether moving up of all experts to,
say, six weeks from now, is a reasonable remedy or not.
Miss Ponzoli has said that they are unable to do that, but
it would seem to me, then, the court would have to make an
independent determination after that date, if that were a
date, after that date, to allow for the addition of a
further expert based an whatever reason the plaintiff might
then come up with, but at least then we could get off of
this stalemate as to who's an expert and who's not an
expert, and what's privilege and what's not privilege.
MR. ROGERS: Your Honor, even if they don't
designate a person as an expert, there are people in the
Park who have been studying the Everglades environment for
years and years and years. We have some idea of who they
are just from the fact that it's a small world. We want to
depose these people and get facts from them
Whether or not they think they want to use them.
THE COURT: Have you noticed them?
MR. ROGERS: We have been waiting for this
51
hearing. We've been held-- because we go page after page.
THE COURT: You're looking for some guidelines -
and rightly so -- it's my job and you've got yours -- but
you're looking for a blueprint or some rules of the road as
to further depositions at this time.
MR. ROGERS: Right. Absolutely, your Honor.
That's it in a nutshell.
And documents. We want those interrogatories
answered, and we want documents --
THE COURT: Well, let me ask you that as I sit
here, and I've been there so I know what it's like to ask
for specifics, but as the court looks at this now, they
have answered an interrogatory, incomplete in your view. I
don't know what is the complete answer. I have to -- the
court ordinarily would say it's been answered, that is
their answer. How do I know that it's not a complete
answer. When they say "See answer to No. 1," how do I know
that is not -- the answer to No. 1 is possibly not the
answer to the No. 2. Now you're saying it can't possibly
be.
MR. ROGERS: That's what we're saying. Can't
possibly. After two and a half years, a case of this
magnitude, with all the hoopla that they put into this
case, for them to say they have one expert witness as we
stand here in September of 1990, I say, on its face is
52
nonsense. And I say that particularly--
THE COURT: Is there a qualifier in their answer
that this is all that is presently known as the answer?
MR. ROGERS: In all of them. So that we
anticipate the original strategy was to wait until April or
whenever, "Oh, we have another 100 experts," and suddenly
we've got to go run to three depositions a day and we're
caught off guard, and they have a strategic advantage.
THE COURT: Well, realistically, what discovery
remains to be done?
MR. ROGERS: I would guess hundreds of
depositions. That's --
THE COURT: Do you know who the people are that
you --
MR. ROGERS: We have some idea. We'd like to go
into the Park, we'd like to go into the Refuge, we'd like
to talk to these outside experts. We're going to be
looking at soil data, phosphorous data. We're going to be
looking at the affects of potential remedies. We have
flood control as it interacts with the water quality.
We're talking about water is managed in South
Florida. They haven't really started the depositions yet.
They're still working on Rule 30(b)(6).
And, by the way, an that issue, that isn't before
the court. We have a lot to say about their depositions of
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our people under 30(b)(6). I don't know how we got into
that today, but that isn't before the court.
They're going to be scores of expert depositions
and on key people that are going to go on for a long period
of time. We took three days with Mr. Sheicht and we
weren't even able To ask the most basic of questions.
THE COURT: When would you be ready to identify
all your experts?
MR.ROGERS: All the experts which we believe
we're going to have we'll try to identify in the answer to
interrogatory which is due, I think, in three weeks or so.
THE COURT: Do you believe you would be in a
position in three weeks to identify --
MR.ROGERS: Well, I may be shot. We might ask
for two weeks more than that, but --
THE COURT: No, I mean within the next six weeks?
MR. ROGERS: Yes, yes. Absolutely.
THE COURT: You will be ready by --
MR. ROGERS: Absolutely.
THE COURT: Any co-defendant want to add
anything?
MR. BURGESS: Your Honor, if I may?
Rick Burgess of Peeples, Earl & Blank on behalf
of the cities of Belle Glade and Clewiston.
Your Honor, I don't mean to repeat.
54
The cities filed a memorandum in opposition to
the plaintiff's motion for protective order and in view of
the discussion here today I maybe wish to highlight what
the cities' position is with respect to that motion.
We've talked about throwing out Rule 26 and not
applying Rule 26, and I think instead what we need to do in
avoid, with respect to this deponent, and on a continuing
basis perhaps, the improvident assertion of Rule 26 and,
instead, the cities seek to have that Rule applied pursuant
to the case law that has been cited by the cities and,
indeed, really, by all parties in their moving papers.
With respect to Mr. Sheicht, the court's aware of
his status and his knowledge. He is an actor, a viewer, a
participant and a repository of much information with
respect to the allegations in the Second Amended Complaint.
In the various papers that have been filed with
respect to this motion for protective order in response to
motion to compel, he has been identified a sometimes fact
witness, sometimes expert witness, an all the time case
agent, without attribution as to what additional privileges
that may inure to the benefit of the government because of
that status; certainly a not testifying expert, at least up
until now, and as most recent as today, now we find out he
is someone who can be considered the alter ego of the
attorneys.
55
That citation was to Hickman v. Taylor with
respect to work product privilege, and as we heard today,
work product privilege does not apply to his oral
testimony,
What we really haven't heard, if we're going to
apply Rule 26(b)(4)(b), is that he is a specially employed
or retained expert who will not testify at the time of
trial.
If you're going to inure yourself to the benefit
of the Rule, then I think that assertion needs to be made.
Instead, we see in quotes from their papers that his status
as a Everglades National Park case agent assigned to the
United States therefore allows him to be protected by that
Rule.
Your Honor, the case that the District cited,
Virginia Electric and, indeed, it is cited also in our
response to the motion for protective order, I would
commend to the court for review.
In that case Judge Warner does exhaustively
review Rule 26, and I don't think we can simply toss out
the impartiality argument contained therein with respect to
reviewing that Rule and with respect to its application.
Miss Ponzoli stated today that substantial public
policy behind allowing in-house experts to be protected by
26(b)(4)(b). Well, I think what we need to do is apply the
56
law with respect to 26(b)(4)(b), and in that instance, in
the Virginia Electric case, Judge Warner does review the
status of in-house experts, be they retained or be they
specially employed, but he comes back to the definition of
expert and, indeed, I think quotes Black from the beginning
and then goes through the Rule.
"The definition of the word "expert" connoting
impartiality and ability to see all sides of a
subject compels the conclusion that the expert
owes his allegiance to his calling and not to the
party that has retained him."
In the consolidated response of the United
States, I believe on page 16, the United States says, "Mr.
Sheicht, has been intimately involved with every aspect of
this litigation since 1988 and has been working at the
direction of the United States Attorney's office. His role
as a case agent is analogous to that of a consulting expert
under 26(b)(4)(b) since he has been specially employed
since the fall of 1988 on issues directly involving this
litigation."
Well, I think a strict reading of Virginia
Electric compels the conclusion that he be examined in
light of that conduct, in light of that role, as an
ordinary witness.
To quote Virginia Electric 407 and 408:
57
"The court perceives this to imply that though
one be an expert, if his contact with the case is
not in his capacity as an impartial observer, but
is instead as one going about his duties as a
loyal employee, then he should be treated as an
ordinary witness."
The court goes on to state that this view does
not in anyway prohibit any expert in house or out from
giving an opinion in testimony at trial. It merely opens
up that opinion based on the facts gained in the course of
his employment, and that is, I think, what we are seeking
through the deposition: questions of Mr. Sheicht.
I will note that the District's motion to compel
in Exhibit 4 did include all of the questions of the cities
that were objected to and on which Mr. Sheicht was
instructed not to answer, so subsumed within that, then,
are the cities' questions.
Your Honor, I would also just like to point in
addition to the public policy Miss Ponzoli stated today,
the one case that they rely on in their moving papers with
respect to this issue and Mr. Sheicht being a case agent
Protected by 26(b)(4)(b) is the Cipher v. Topsies
International case, which I think is distinguishable for a
number of reasons, the two most important being that the
Touche Ross partner in that case that was given 26(b)(4)(b)
58
protection did not have any involvement in the subject
matter of that with which he was going to offer expert
testimony, namely the correctness and thoroughness of
certain audits that were at issue.
Of course, in addition, then, the witness was not
going to be called at the time of trial and we don't have
that for certain in this case, yet. But, also, I don't
think Cipher is as an all-encompassing authority as the
United States makes in their moving papers since the court
went to great pains on page 73 to rule that its rulings are
narrow rulings on specific questions of law within
circumscribed facts, and I would commend that the court
instead consider Virginia Electric and not Cipher, with
respect to the --
THE COURT: Well, in your reading of Virginia
Electric, which I have not yet read, but which I will read,
in your reading of Virginia Electric, assuming if the court
were to apply that law of another circuit, would there be
any limitations at all on Mr. Sheicht's testimony? Would
there be any limitations or valid objections as you read
it?
Let me rephrase it again. Would those objections
that have been made, would any of them withstand scrutiny
under Virginia Electric?
MR. BURGESS: Yes. I think, your Honor, to the
59
extent that the inquiry is concerned with the opinions of
other in-house, non-identified experts with which Mr.
Sheicht has had contact, I think it would apply in that
case. It would not include that inquiry.
However, as I recall the facts of the case and
the law of the case, it would allow inquiry which was not
permitted into countless times at the deposition as to
facts within Mr. Sheicht's own knowledge. It's the things
that he is aware of as to things, indeed, that he has done
since the summer of 1988.
All the inquiry that was allowed was up until the
time that he became this mysterious case agent, some time
in the summer of 1988.
Mr. Sheicht admits in the deposition himself, he
cannot tell, really, where one job left on and the other
one began, so he always, I think, erred on the side of
cautiousness and didn't develope or go into testimony if he
wasn't sure that it was something done before the summer of
1988.
Certainly anything between that time and now in
his position as this case agent, I would say Virginia
Electric stands for the proposition that we can inquire.
THE COURT: Okay.
MR. BURGESS: Thank you, your Honor.
THE COURT: Miss Ponzoli, just briefly, they've
60
brought up a few points which, of course, were mentioned in
their briefs as well, but at least as to Mr. Sheicht's --
regardless of the label -- his being a -- (unintelligible)
label -- an in-house expert or an in-house person who may
or may not be an expert at trial, and the case law that
they cited, Virginia Electric, and other cases, I believe,
would have the court treat him as an ordinary fact witness.
What is your response to that one?
MS. PONZOLI: Well, I think --
THE COURT: And also the point that they make
about oral -- that there is no work product privilege based
on oral. I think that's stating it correctly.
MS. PONZOLI: I don't think they cited any law
for that proposition, your Honor. I think that's their
interpretation.
I think in regard to Marine Petroleum case and
the Cipher case there was an absolute recognition that
someone who had special skills within any organization and
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