Hearing Transcripts from United States v. SFWMD, et al.,

Case No. 88-1886-CIV-HOEVELER
 

 

       STYLE:    US vs. SFWMD
        CASE:      88-1886-CIV-WMH
        JUDGE:   TED E. BANDSTRA
        DATE:      December 3, 1990

        NAVIGATION:
                          Appearances
                          Proceeding
                          Page:   20 40 60 80 100
                          Certificate (page 114)

 

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

 

 

UNITED STATES OF AMERICA,

Plaintiff,

vs.

SOUTH FLORIDA WATER MANAGEMENT

Defendants,

__________________________________________

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Case No
88-1886-CIV-WMH                                        

        MIAMI, FLORIDA
        December 3, 1990
 

TRANSCRIPT OF HEARING ON PENDING MOTIONS
BEFORE THE HONORABLE TED E. BANDSTRA,
UNITED STATES MAGISTRATE

 

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APPEARANCES:


JIM ROGERS, ESQ

MR. BURGESS, ESQ.

MS. PONZOLI, ESQ.

LAURA AHERN, ESQ.

FRED DISHAROON, ESQ.

ROBERT GOFF, ESQ.

BEVERLY NASH, ESQ.


Transcriber:


S. Magdaz


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THE COURT: Please be seated. That is a visual

aid. Good afternoon, everybody. We're here in the case of

United States v. South Florida Water Management, 88-1886, a

hearing on motions.

And I will first -- I think, rather than ask for

appearances, what I've done in the past is, when you speak,

please introduce yourself for our record and also for me

again. And not all of you will necessarily have something

to say; so, it might just speed things up a little bit.

It is a visual aid, at least for me. The -- I'm

referring now to this stack of pleadings.

I have set a hearing on pending motions, and it

was my intention in setting this hearing that we would deal

with as much of what has been fully briefed as possible.

And I've had calls and my secretary has had calls from

numerous attorneys in this case asking what we were going

to do today, and that's what we're going to do today.

We're going to try to discuss and for me to hear so I can

decide all pending motions that have been briefed. And I

know that a good part of this stack has been received by my

office within the last week or so; so, I don't suppose that

we would be dealing with those matters.

I have attempted this morning to read through as

much as what I thought was pending for a hearing today, and

I have placed these in no apparent order. It's just simply

 


3

 

1 through 12. And so, if we can proceed in my order, I

think I can best keep it straight, because that's how I

dealt with it. And we will proceed (inaudible) motions as

I call them off.

Just so you have some feel for this, I'll tell

you how I've numbered these; and perhaps you can anticipate

then when it is that we would be getting to your particular

motion. And again, this is just in the way it happened to

come across -- out of this stack. So, I haven't

prioritized this, nor have I put it in any particular

order. Some of these motions may have become moot,

although I doubt it -- or portions of them -- and of

course, that's one of the things that I want to hear about.

Let me just tell you the order that we'll address these.

The first would be -- and I'll just refer to

these by the short names that the parties have come to know

probably better than I have -- the Cities of Belle Glade

and Clewiston's motion for protective order, which was

filed by Mr. Burgess on November 19, 1990.

The second will be the District's counter-motion

to the Cities' motion for protective order, which was filed

on the 27th by Ms. Ahern.

The third will be the District's motion to compel

discovery regarding the Federal Remedy Committee, which was

filed on November 27. Now, that is a recently filed

 


4

 

motion; and if that's a motion that doesn't fit within

fully briefed, then perhaps we won't hear on that motion

today.

The fourth is the District's emergency motion for

a temporary restraining order to prohibit further use of

privileged documents; and there was a related order, I

believe, for a preliminary injunction relating to that

issue.

The next is the Government's motion to compel

production of documents in a reasonable time and manner,

that was filed on November 8.

And of course, I'll go through these again, but

just -- again, just to give you some idea of how it is that

I'd like to approach this.

The next is the Plaintiff's or the Government's

motion to compel discovery, filed on November 2. This

relates to a motion to compel answers to deposition

questions of Ms. Urban and Mr. Davis.

The next is the District's motion to compel

documents wrongfully withheld as privileged. I think I

just made reference to that. No, that is a different

motion. It's a motion that addresses documents withheld by

the Government as privileged. I do make note here that

that was filed on the 30th. In fact, when we get to that

motion, I 'd like to ask the attorneys who are involved with

 


5

 

the motions -- with the privileged lists and the motions to

obtain those documents if perhaps that is a matter that

should be set today for a further hearing, perhaps a

lengthy hearing, on privileged documents and the arguments

that Counsel would like to address the Court on in

reference to the privileged lists.

But, the next motion is the District's motion to

amend an expert witness designation schedule; and then

there appears to be a companion motion filed by the

Government, a motion for time -- or to add one additional

expert, I believe it is.

The ninth is the Plaintiff's -- Government's

motion for clarification of the September 19 order. That

is a recently filed motion -- November 19.

And then the next one that I reached and the last

one that I reached was the Government's motion for

protective order and objections, filed on October 19 of

1990.

We'll try to progress in this order; and as I

stated, I'm going to try to address only motions that have

been briefed.

Do I have a preliminary comment?

MR. RODGERS: Your Honor, Jim Rodgers for the

District. Actually I believe the first motion that is in

this entire group is our motion regarding Colonel Herndon,

 


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which was filed, I think, in October.

THE COURT: And I didn't even read that one off.

Did I? That wasn't one that I listed when I just read

through the list?

MR. RODGERS: No.

THE COURT: Okay. That may have been the first

motion.

MR. RODGERS: Okay.

THE COURT: That was not the first one that I

reached, but we will deal with that as well. Okay?

MR. RODGERS: Okay. Thank you, Your Honor.

MS. PONZOLI: Your Honor, I believe a significant

number of these are not fully briefed. If I could go down

your list, may I tell you? And then, if other counsel have

different ideas, they can so advise you.

The first two --

THE COURT: All right. Well, let's try to do

that, so we can --

MS. PONZOLI: The motion for protective order and

counter-motion -- the protective order -- the United

States' response is not due until Wednesday; and because of

the counter-motion filed by the District, we are taking a

few extra days to respond to both of these simultaneously.

So, those two are not fully briefed.

THE COURT: All right. So, you're talking now --

 


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is Mr. Burgess here?

MR. BURGESS: Yes, Your Honor.

THE COURT: All right. Mr. Burgess, your motion

is not fully briefed? Is that what I'm hearing, Ms.

Ponzoli?

MR. BURGESS: Well, it's my motion and their

response. I'm not sure when their response was due, Your

Honor. I was prepared to argue the motion; and before the

hearing I spoke with Ms. Ponzoli and she said it's not

fully briefed, so she didn't intend to argue it.

THE COURT: All right. I do want to stay within

the guidelines especially that I have set; and so, we will

not discuss that motion today.

Some of these motions, it does not appear -- and

as I read them through and as we go through them now, it

doesn't appear that oral argument has been requested or is

even necessary. So, I'll ask you, Mr. Burgess: In this

case, do you think that's a -- your motion is one that

requires an oral argument?

MR. BURGESS: No, Your Honor.

THE COURT: Okay. Then I think what I'll do is

attempt to address that after it's briefed and then not

necessarily require -- or schedule an oral argument.

And your motion then, Ms. Ponzoli, the --

MS. PONZOLI: The Remedy Committee motion is also

 


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a very recent one, Your Honor, which has not been briefed.

THE COURT: All right.

MS. PONZOLI: The TRO -- you have either signed a

TRO or you granted an oral TRO over the telephone; so, that

really isn't to be argued.

The PI and the United States' No. 7 motion to

compel are interrelated, and those are expected to be

argued today, as is No. 6, the motion to compel production

of documents at DER. So, 5, 6, and 7, I believe all

parties expected to argue today.

THE COURT: You're referring now to my numbers

that I attached to them?

MS. PONZOLI: Yes, sir.

THE COURT: Okay.

MS. PONZOLI: No. 8, the privileged list -- it

was filed on Friday by both parties. Both parties have

filed privileged list motions. So, those are not fully

briefed.

I don't think anyone objected to the Water

Management District's motion to amend the expert witness

designation, nor I believe to the United States' motion to

add an additional expert witness; so, I don't know that

those need to be argued.

The clarification of the September 19th order, no

one has objected to; so, I don't know that that needs to be

 


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argued orally.

And I guess I'm confused about the final one, the

motion for protective order.

THE COURT: What I'm referring to?

MS. PONZOLI: Yes, sir.

THE COURT: Let me see if I can straighten that

out. There was a motion filed on --

MS. PONZOLI: October --

THE COURT: -- October 19. Maybe I have the

date. It's styled as United States' motion for protective

order and objections, and it objects to the subpoena duces

tecum (inaudible) deposition of Dr. Paul C. Parks.

MS. PONZOLI: It's moot, Your Honor.

THE COURT: It's now moot.

MS. PONZOLI: We've produced the documents. That

motion is moot. It no longer needs to be argued.

THE COURT: Okay.

MS. AHERN: Your Honor, if I may.

THE COURT: Yes.

MS. AHERN: Laura Ahern for the South Florida

Water Management District.

Your Item No. 11, the United States' motion for

clarification of the September 19 order, I believe that's a

filing made only this week and received only -- excuse

me -- last week and received maybe only on Wednesday or

 


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Thursday. It's not yet been briefed, and the District has

not yet filed its response.

THE COURT: That's the motion for --

MS. PONZOLI: She's probably right, Your Honor.

I don't really know when it was filed. But, if they intend

to respond, then it has not been fully briefed.

THE COURT: All right. Which -- Ms. Ahern, which

one were you refering to? The -- what I numbered 11?

MS. AHERN: Yes, sir. United States'

clarification of September 19 order.

AN ATTORNEY: Is that No. 9?

MS. AHERN: It's No. 11, I think.

AN ATTORNEY: It's No. 9 on my list.

THE COURT: Yes. I didn't think it was No. --

MS. AHERN: My number may be wrong, Your Honor,

but hopefully that's the proper title.

THE COURT: All right. It actually is No. 9 --

or at least it's my No. 9. And do you anticipate filing a

response to that, Ms. Ahern?

MS. AHERN: Yes, we will.

THE COURT: So, then I won't decide that as a

no-objection motion, but rather I'll wait for the

District's response.

Mr. Rodgers, the motion that you referred to, I'm

familiar with, although I didn't number it here. So, why

 


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don't we start with that motion.

MR. RODGERS: All right.

THE COURT: And it is your motion?

MR. RODGERS: It is our motion, Your Honor.

THE COURT: Would you announce what the motion is

so that we have a record here of it and just briefly --

what I'd like to do here, as I've done in the past -- and

that is to try to highlight, focus in, and get to the crux

of the matter so that I know exactly what --

MR. RODGERS: Sure. Right.

THE COURT: -- (inaudible) stated. And a lot of

times things change since the filing of these things. But,

go ahead.

MR. RODGERS: Your Honor, it's the motion to

compel --

THE COURT:  I'm sorry. Let me interrupt you one

more time.

The attorneys have asked me also how long we're

going to go, and I know people have travel plans. It's my

intention -- it was my intention to have about a

sixty-minute oral argument. I think that, in light of the

number of motions that are here -- and I'm not sure how

many we're going to get to -- but, we're not going to go

past 5:30. And so, that will be the time frame today. If

we need to reschedule for next week, I have time available.

 


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And I know you're all busy with this case. But, that's

another -- just a preliminary comment of mine.

MR. RODGERS: Well, my fundamental rule is always

to leave time for Ms. Ponzoli to respond.

THE COURT: Okay.

MR. RODGERS: Your Honor, this is the motion to

compel deposition testimony, and it relates to Colonel

Herndon.

And Your Honor, as a preliminary matter, the more

I think about the documents you've got and all the

motions -- does Your Honor have a copy of our map? I'd be

happy to supply two copies to the Court. This is a very

handy -- and a program of the players that --

THE COURT: Well, I'll take another one. I think

I did have one at one time.

MR. RODGERS: Do you have one? I'll leave a

couple with you, because as you read these briefs -- and I

think it's going to increasingly get complex -- it's useful

to know what structures we're referring to and spillways

and things like that.

THE COURT: All right. I know that this was --

it was you that introduced me to this whole matter

geographically some months ago. But, is that what I'm now

going to be looking at here?

MR. RODGERS: Yes.

 


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THE COURT: Okay.

MR. RODGERS: In a sense, it ties in with the

Herndon deposition, which will go down in the annals of law

as the most expensive deposition ever attempted to be

conducted.

I would like to spend five minutes going through

the history of this, because it goes back to the origins of

this case.

THE COURT: Do you have the filing date on that,

just so I'm sure --

MR. RODGERS: It's October 26th.

THE COURT: Okay.

MR. RODGERS: Is that right? October --

AN ATTORNEY: (Inaudible).

MR. RODGERS: I think it's -- it's October.

THE COURT: Okay.

MR. RODGERS: And we filed it in the District of

Columbia, and then it was transferred by stipulation down

here.

THE COURT: Okay.

MR. RODGERS: We answered the complaint on

December 23rd, 1988; and in that answer we filed a Rule 19

motion to try to get the Corps of Engineers in here as a

defendant. The Government responded with the theory of a

unitary executive and surprised all of us by saying that

 


14

 

the Corps is a plaintiff in this lawsuit. These have been

our colleagues and friends for forty years. There had not

been one iota of a problem; and all of a sudden, we're in a

federal lawsuit. I won't bore you with that argument, but

it was -- it came as a surprise.

On April lith we had a hearing before Judge

Hoeveler on our Rule 19 issue, and Mr. Laitinen (phonetic)

said in that -- and the court, by the way, said that he

wasn't going to grant the Rule 19, but we could raise all

these issues as a defense against the Corps; and indeed, as

you know, we filed a counterclaim.

But, Mr. Laitinen said:

"The Government will be happy to do what the

counsel for the Defendant says. Since we

represent the Corps, they don't even have to have

a subpoena for Colonel Herndon. All they need to

do is pick up the telephone and ask for Colonel

Herndon to come down here. He's a party to this

lawsuit, and Colonel Herndon will be here and

testify regarding all these matters."

And then he went on to say, "We know that's going

to be their defense," namely "The devil made me do it"

defense as he called it.

"We are ready for it. That's why fifteen days

ago, being the latest meeting -- but prior

 


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meetings to this -- Colonel Herndon said once

again in a coordinating committee meeting of all

of the agencies the United States Government

represents in this lawsuit -- that I represent --

Colonel Herndon said again, 'We are on board with

this lawsuit, and we want to move forward and

cooperate.'"

And by the way, all of this dialogue, in my

opinion, had a real impact on the judge. He had his United

States Attorney before him and here were strong statements

that Colonel Herndon and the Corps of Engineers really was

an enthusiastic plaintiff and that our motion was

groundless.

He went on to say:

"Well, that's what I get paid to do -- to make

those mere assertions -- and I make one of them

today -- that I represent the Corps; and

accordingly, if he wants to depose the Corps, he

doesn't need a subpoena. The Corps is a

plaintiff. If he wants the Colonel to come

in …"

Etcetera, etcetera.

"… doesn't need to file a Rule 26 -- no

complications."

And then Mr. Harrison got up and said:

 


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"That's what this case is about. With the Corps

as a plaintiff, Colonel Herndon is well on board.

I even spoke to him over the weekend. He regrets

that he could not be here …"

There are points of humor in this case, Your

Honor; and this was one of the first.

"He regrets that he could not be here, but they

support the goals and they are powerless to

regulate the introduction of agricultural

pollution in this system."

So, we lost.

Now, I just want to move ahead fast forward for a

second. in the deposition of Colonel Herndon, we brought

him back to some of these conversations and to an affidavit

that he had signed, and here's his answer in his deposition

at Page 132:

"A I'm not sure that this document …"

That is the Herndon affidavit.

"… leads to the conclusion that the Corps of

Engineers is on board. I am not sure that the

meeting that was held with Laitinen led to the

conclusion or would have led others to the

conclusion that the Corps was on board, but that

is the terminology that an individual chose to

use and that's, I guess, his right and his

 


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privilege."

We moved for certification. The Eleventh Circuit

is part of the briefing of that -- argument on that before

Judge Hoeveler. They had an affidavit they produced, that

was referred to in that deposition testimony -- Colonel

Herndon signed on 9, May, 1989.

"I hereby state that there is no dispute between

the US Army Corps of Engineers, the US Department

of Interior …"

Etcetera, etcetera. And it goes on to say he

supports the goal of the lawsuit.

"I, Colonel Herndon, support all reasonable

efforts to reduce the amount of nutrients …"

Etcetera, etcetera.

"I hereby state that the Jacksonville District is

willing to assist in any manner consistent …"

Etcetera.

It clearly put Colonel Herndon into play, so to

speak. He's the head of the District -- the Corps. He's

being used as personification of the Corps.

In any event, we wanted to depose Colonel

Herndon, as Mr. Laitinen had offered us to do and as Mr.

Harrison had offered us to do.

On June 16th, 1989, we issued a subpoena for

Colonel Herndon, and we tried to work out voluntarily some

 


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of the problems with that subpoena, and we were

unsuccessful. The Governient said that the deposition was

improper for lack of overall discovery schedule --

premature.

They filed on July 18th a notice of intent to

seek a protective order on various grounds.

On September 25th the Government refused the

deposition because the District hadn't answered the

complaint. It's because our motion to dismiss was pending.

We didn't have to. On October 10th, 1989, we issued a new

subpoena for Colonel Herrdon.

October 26th, 1989, the Government moved for

protective order, saying we must first file expert witness

interrogatories to Colorel Herndon, implying he would be an

expert; and of course, they have listed their experts and

Colonel Herndon is not on that list.

On November 1st we had a hearing before Judge

Hoeveler on our Rule 19 certification issue. We lost

again. And Judge Hoeveler said, though, with respect to

Colonel Herndon:

"I think Cclonel Herndon and I think the Corps of

Engineers is available to the parties; and if he

and they are not, I will make them available to

you to the extent that you think you need to have

them made available, and we won't worry a lot

 


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about red tape in the process."

On November 10th we filed a motion to compel

enforcement of the subpoena of Colonel Herndon and

throughout the winter unsuccessfully struggled to get a

date to actually speak to Colonel Herndon.

On March 19th, 1990, we filed a counterclaim

against the Corps, which is Exhibit 6 to this motion, which

squarely raised a number of issues with the Corps, as you

know one of -- the primary one of which is: If you're

saying we violated State law by not having permits for

these structures over here, which look exactly like your

structures over here, are made out of the same load of

concrete, etcetera -- identical -- why don't you get a

permit? And of course, they've responded now saying

they're immune from that law. But, in any event, we filed

our counterclaim. A number of issues with respect to the

Corps were put into play.

April 19th, 1990, the court authorized all

depositions to proceed forthwith. And finally, on June

11th, we had our first deposition of Colonel Herndon --

excuse me -- first and only deposition, at which he was

instructed roughly seventy-five times not to answer

questions.

He did say a few things between the objections.

He agreed with a Corps document that said that, quote:


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"This litigation is not the best way to solve the

problem."

And he said a number of other things. I won't

quote them to the Court, but I think I can paraphrase

them -- saying that he was opposed to the litigation, the

Corps was opposed to the litigation, the Corps thought it

was interfering with the relationships with the District,

that it was counterproductive -- and one could draw from

the 130 pages or whatever of the first day that, quite in

contra distinction to the representations made by the US

Attorney, the Corps had no interest in this lawsuit and

certainly no interest in being a plaintiff.

We moved to compel after that deposition because

so many questions had been refused to be answered. And as

I said, there was a transfer to the Southern District, and

here we are.

And as I read the Government's brief, here's what

they say is the grounds for not letting Colonel Herndon ask

basic questions regarding the origins of this lawsuit, the

involvement of the Corps in this lawsuit, the interests of

the Corps vis-a-vis the District -- the basic heart of any

potential plaintiffs' claim against an opposing party --

questions that really go to: What is your gripe against

the District? And we, as a defendant in federal court,

certainly have a right to ask the opposing party why, after

 


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forty years, you're suddenly suing us on all these counts,

which appear on their face not to make any sense.

The first thing they said was our questions seek

information which are clearly -- not clearly relevant to

the case. That has nothing to do with a deposition. It's

not a valid defense in a deposition, Your Honor. There is

no citation for that in their brief. We think the

questions we asked are not only relevant to the case, they

go to the heart of the case. But, even if they weren't

relevant, they're certainly calculated reasonably to lead

to relevant information.

At Page 20 of their brief they say:

"Colonel Herndon's knowledge or beliefs as an

individual regarding the status of the Corps is

not germane to any issue in this case and could

not possibly, lead to discovery of admissible

evidence."

This is after they've introduced an affidavit and

they've referred to Cclonel Herndon repeatedly to get them

out of a box in which they were faced with suing the Corps.

They clearly have represented that Colonel Herndon is a

representative of the Corps and is the right guy to talk

to.

I compare for you the October 26, 1989, motion

the Government filed for a protective order, Page 5:

 


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"Colonel Herndon's testimony and knowledge is

clearly relevant to this case; and when the

proper time comes, the United States will agree

to make him available for testimony."

The second objection is our questions seek legal

conclusions, such as: What is a stationary structure?

That is a term of art that's relevant because they're

contending we have stationary structures that need permits

and have violated law.

Colonel Herndon sat in Jacksonville as the chief

regulatory official for this area. He authorized scores of

lawsuits every week. He acted in a regulatory capacity

that involved making legal conclusions and listening to

legal advice. He full well knows what a stationary

structure is, and we have a right to ask him if he knows

what that definition means; and if he doesn't, he can

simply say, "I don't know. I relied on my lawyers." But,

he can't be instructed not to answer the question. And

certainly, in this District, it's perfectly proper to ask a

witness a legal -- a question that leads to a legal

conclusion.

There are other objections throughout their

instructions not to answer. The questions are

hypothetical, which we have a right to ask. They call for

sheer speculation, which I guess is an instruction to the

 


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witness that, "You may not know the answer to that

question," but it certainly is not a basis for instructing

the witness not to answer.

And then they go on to say -- and this is at Page

24 of the Government's brief:

"The District could have sought the intervention

of the court at the time of the deposition, but

failed to avail itself of this procedures."

And therefore, I guess, we lose our right to

protest this. I suppose what they're saying is we should

have stopped and called Your Honor and tried to hash this

out over a conference call, but, frankly, we find that to

be very awkward. You don't have a record in front of you.

You're listening to people through the end of a phone give

their version of what happened an hour ago. And we made

the decision, I think rightfully so, that we would wait and

brief this matter and get a complete ruling.

Then there is another grounds, which I find

almost incredible, that the Government raises; and this

appears at Page 6 and 7 of their brief:

"Colonel Herndon, as the transcript of the

deposition shows, was no longer the District

engineer in Jacksonville when his deposition was

taken and he was selected by the District for

questioning. No Rule 30(b)(6) request was served

 


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on the Corps, nor was Colonel Herndon designated

by the Corps to speak on behalf of that agency as

to its posture in this litigation."

Well, we have to take them as we find them, Your

Honor. He was the head of the Corps down here. His

affidavit was submitted as grounds for keeping the Corps

out as a defendant. Mr. Laitinen and Mr. Harrison referred

to Colonel Herndon in the most glowing terms as an advocate

of this lawsuit. I don't think we exactly were required to

rely on 30(b)(6) to take a deposition of Colonel Herndon.

Moreover, Judge Hoeveler on two occasions had recognized

the significance of Colonel Herndon.

The Government goes on to say that Mr. Laitinen

couldn't waive the attorney/client privilege because the

client didn't authorize it. So, I take it from that that

Mr. Laitinen and Mr. Harrison would come into court and

say, "We just spoke with Colonel Herndon. He couldn't be

here. We just spoke with him, though; and he is

emphatically behind this lawsuit one hundred percent. We

had a Remedy Committee meeting and everyone was most

enthusiastic about the lawsuit, including him," etcetera,

etcetera. And we're powerless to ask any questions, to do

anything about it, because there's some kind of

attorney/client privilege, which can be breached if it's

favorable to the Government, but when it comes our turn to

 


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ask questions, we have no access to the information.

And finally, we come upon this claim of

intra-governmental privilege or intergovernmental privilege

or executive privilege or deliberative privilege. It's

been referred to a number of ways by various Government

lawyers. I don't want to spend a lot of time on this. Let

me just say that we have struggled to try to figure out

what the Government is talking about.

There is a deliberative privilege that exists;

and it can be invoked by the chief officers of agencies,

such as the Secretary of Interior, the Secretary of Energy.

It has to be personally invoked. It has to be precise. It

has to state with exact precision what it is -- what

information it is that is sought to be protected and why.

There are all these preconditions that attach to it.

If you read the A.O. Smith case in our brief,

Your Honor, there's a district judge in Delaware faced with

this who says, "I don't want staff lawyers invoking these

privileges. It has to come from the highest official."

And in that case he said an Assistant Secretary of Energy

was not good enough. "I wanted the Secretary."

And you go through all the cases in our brief and

it clearly establishes a number of rigid preconditions. US

v. Reynolds is probably the primary decision -- Supreme

Court decision.

 


26

 

The Government hasn't even attempted to lay a

foundation for this. They knew this deposition was going

to happen for eighteen months. There were no affidavits.

There was no missive from any high Government official.

This was just off-the-cuff objection and instruction not to

answer because we were getting close to the bone in a

deposition. So, we think that is completely inapplicable

as an objection for Colonel Herndon -- reasons why he

couldn't answer.

Let me just close on Colonel Herndon by saying

that we really are not trying to play games with him.

We're not trying to get him so we can embarrass him. We

have a very strong need to find out what the Corps -- what

their involvement in this is, what their position is.

And if you look -- I don't expect you now to,

Your Honor -- but, on that map I gave you, if you look at

the S-10, S-11, and S-12 structures -- these are the

structures that funnel the water in massive quantities down

into the national park. Those are owned by the Corps. We

operate them at the behest of the Corps. We get reimbursed for

sending people out there to turn the gates when the

Corps tells us to turn the gates.

I could spend three hours here trying to explain

the detail of the interrelationship between the Corps of

Engineers and our client. They designed the project. They

 


27

 

oversee the project. They have parameters. We can't raise

the water level above a certain level and below a certain

level. They have never once ever in any document that

anybody can find complained to us about water quality

problems.

And we need them in this case as a live kicking

party. I've said that to Judge Hoeveler. But, even if

they're not in as a defendant, we have a number of rights

and actions against the Corps, and we have a -- we have a

need to ask the Corps candid questions which go to their

problems with the District and their overall attitude in

this case. Some of those aren't going to be very pretty

answers.

And we could deliver to you thirty or forty pages

of Colonel Herndon's deposition where -- he's a very honest

guy -- a very frank individual -- he said the exact

opposite essentially of what the United States Attorney

said in this case.

I will close at that point. Your Honor, there is

one -- well, let me also, because I lugged it all this way,

show you -- this is a manual for the operation -- design

and operation of one of the structures. It's a Corps of

Engineers' manual. We have these for every structure

enormous detail in each. If we have to try this case,

we're going to be introducing things like this. But, it

 


28

 

just is strong evidence of the deep, deep involvement in

this entire problem by the Corps of Engineers.

And I will stop at that point, Your Honor. But,

I want to say one thing about overall discovery in this

case, and then I'm going to turn the rest of the District's

argument over to Ms. Ahern.

When we were before you last -- I think it was

September 3rd -- we were complaining about not getting

interrogatory answers and not getting documents, and Your

Honor issued an order on September 19th that said that the

Government must fully answer all interrogatories. They

answered for the second time on October 9th and were

supposedly to list the people and the exhibits which would

provide the foundation for their case.

Now, as you probably know because there's been a

great deal of press publicity, the Government filed a

mammoth motion for summary judgement against us about two

weeks ago. It's in a banker's box. It's

I-don't-know-how-many hundred pages long. The exhibits are

in black binders. And we now begin to see what the

Government's case looks like.

What troubles me a great deal is that documents

such as this, which is Dr. Walker's report, a statistical

analysis of the water quality in Everglades National

Park -- water quality transit inflows to Everglades

 


29

 

National Park -- September 19th, '90. He's been working on

this obviously for a couple of years. We've tried to get

his name, and what he's doing had been privileged. All of

this is dated pre-September. He is not listed, nor is this

document listed, on their interrogatories; nor is the work

of Dr. Jones, who's been doing soil work. in fact,

forty-four major documents that are included as exhibits in

the motion for summary judgement, which are all dated

September or before, find -- there is no reference to them

in our interrogatories' answers.

We're -- it's not before Your Honor, but I will

tell you that we're very, very troubled by that; and we're

obviously going to have to frame a response. But, we have

this continuing belief that those answers -- those

interrogatories, our eighteen-month-old requests for

documents, are not being taken seriously.

Thank you, Your Honor.

THE COURT: Let me just ask one question. The

specific relief that you're requesting in this motion to

compel is what?

MR. RODGERS: We have a draft order, Your Honor.

It is to go back to the deposition and to instruct Colonel

Herndon to answer these questions and questions which

logically flow from them and, let's say, questions which

are obviously and logically related to them. And I think,

 


30

 

if we can get some general instruction from you as to these

questions, we won't have any real trouble as to finding the

limits on where we're going.

THE COURT: All right. Thank you.

MR. RODGERS: Oh. I should clarify. Ms. Ahern,

I may have mis-stated and said something that's inaccurate.

Dr. Walker is listed in the interrogatories. It's just the

materials -- the affidavit, the report -- are not listed as

exhibits that would be introduced at trial.

THE COURT: All right. Ms. Ahern.

MR. DISHAROON: May it please the Court, Your

Honor. I'm Fred Disharoon (phonetic). I'm from the

Department of Justice in Washington. And I was the

attorney who represented the Government at Colonel

Herndon's deposition; so, I was told that it would be

appropriate for me to respond.

THE COURT: All right. Well, welcome down here.

MR. DISHAROON: Thank you.

From listening to Mr. Rodgers talk, you'd think

that he didn't get to take Colonel Herndon's deposition.

In fact, as the record -- the transcript shows, there were

one and a half days of deposition, hundreds of questions,

most of which were answered, most of which dealt with the

subject matter that Mr. Rodgers has been arguing about this

morning; and the few questions that were not answered were

 


31

 

in many cases repetitious, because it was a continuous

effort to try to inquire into two very narrow areas, to

which we believe the Government properly claimed privilege.

There's an additional problem with regard to the

motion in that Mr. Rodgers and the South Florida Water

Management District has attempted to single out Colonel

Herndon as their choice of a spokesman for the Corps of

Engineers. Now, as the Court knows, it is quite

appropriate -- if you wish to have a deposition of an

agency and you want the agency's position, there is a

procedure under Rule 30(b)(6) to do that -- to have someone

designated to speak for the agency. The District did not

do that. They wanted to take the deposition of Colonel

Herndon, and they did take Colonel Herndon's deposition.

At the time they took his deposition, he was no

longer the district engineer in Jacksonville; he was

assigned to a completely separate office in Washington,

having no responsibility whatsoever with regard to any of

the subject matter of this case. The matters that they

inquired about were matters that would have been within his

purview as the district engineer in Jacksonville; however,

the Corps -- the South Florida Water Management District

seeks to have him set up -- a quote from Mr. Rodgers -- as

"the head of the Corps and the personification of the

Corps". Well, Colonel Herndon was no such thing; he was a

 


32

 

district engineer who was a regional official of the Corps.

The Corps is headquartered in Washington. The

Corps takes its directions from the Secretary of the Army,

and decisions with regard to the Corps' position with

regard to this litigation have never been delegated to the

district engineer. We have offered to provide the

regulations under which the Army operates to Mr. Rodgers.

He did not choose to accept that offer, and that is in the

deposition.

But, what they want to do is ask Colonel Herndon

a series of questions regarding the role of the Corps in

this case. Now, first of all, Your Honor, Judge Hoeveler

has already addressed that issue. He has held that the

Corps is a party, that they may raise defenses against the

Corps. There is no question that, if they need to take

depositions of the Corps, depending on what questions they

wish to ask, they may do so.

In fact, we originally filed a motion to strike

this motion because it did not comply with the requirements

of the Local Rule. After having a discussion with Mr. Jim

Rothall, it became obvious that we couldn't reach an

agreement because we either had to agree to answer their

questions in the form they wanted to ask them and from whom

they wanted to ask them or there was no possibility of

agreement. Under those circumstances, we didn't consider

 


33

 

it worthwhile wasting the Court's time; so, we agreed to

withdraw that motion, and we're here to argue the merits.

The principal area in which Colonel Herndon was

stated and advised not to answer these questions regarded

questions regarding discussions that he had with the United

States Attorney's Office before this lawsuit was filed and

similar discussions with his staff regarding the position

the Corps should take as to whether or not this lawsuit

should be filed. Now, we argued in our motion -- and I'd

reassert it now -- that I can conceive of no possible

relevant evidence that could come from an answer to those

questions.

As a matter of law, when the United States files

a lawsuit, its agencies are before the court; and the court

can allow them to raise defenses, to obtain information

from the Corps, and to do whatever else is necessary to

afford that party a fair trial, but that does not make it

relevant as to what the discussions a particular individual

in the Corps may have as to whether or not he particularly

believes a lawsuit should or should not be filed.

But, that was -- if the Court will review the

questions -- and we did ask them for a list of the

questions that they wanted to be answered, and we were

given a three-page list. I reviewed them again yesterday,

and they almost entirely go into discussions regarding what

 


34

 

the Corps felt about this lawsuit.

Now, again remember that he is wanting Colonel

Herndon to answer these questions. Now, I will say to the

Court right now -- and I offered to them in our

discussions -- if they want to file written

interrogatories, if they want to file a Rule 30(b)(6) so

that the Corps itself can decide who its spokesman is and

what answers should be given, that's not been precluded.

But, they are not entitled to come in here and pick out an

individual in the Corps, who no longer works for the Corps,

who has not been designated by the Corps to speak for them

on this behalf, who just happened to be involved because of

his position in which he could have made a recommendation

but he was not a final decision-making authority. They are

not entitled to have him answer questions on behalf of the

Corps.

And we think that there is clearly an

attorney/client privilege. We have cited cases in our

reply that deal with the deliberative process privilege,

which are the same thing essentially -- that Government --

intergovernmental discussions leading to a lawsuit are not

subject to discovery, and they're certainly not likely to

lead to the discovery of relevant evidence in any case and

a fortiori in this case where the court has already ruled

on that issue.

 


35

 

The only thing they could possibly be doing is

trying to protect -- or assert some additional evidence

that they might want to use on appeal. I find no cases and

they haven't cited any that say that's a proper grounds for

discovery.

A number of Mr. Rodgers' statements as to facts

go beyond the record, and they were not in the motion. The

thing he was showing you about the Corps, it seems to me,

is totally irrelevant to the question of whether or not

Colonel Herndon should be brought back to be asked legal

questions about what he said to the US Attorney about

whether or not this lawsuit should be filed or what

discussions he may have had with the US Attorney after the

suit was filed. There's simply no reason to do that.

There are other means available if they have legitimate

questions to ask.

But, we think they have not met their burden of

showing there was a waiver of the attorney/client

privilege. They have not addressed any of these particular

questions. They have not shown that there's any

information that they really need that they didn't get.

In fact, some of the quotations from Mr.

Rodgers -- I think it was quite clear that, when he framed

question in the sense that he was asking Colonel Herndon

specific question and not about discussions he had with

 


36

 

his staff or with the US Attorney with regard to this

lawsuit, those questions were answered and Colonel Herndon

was quite candid saying that, if it were up to him, he

would not have filed this lawsuit. He felt that he could

have worked it out individually; and because it interfered

because he has to work with the two Defendant agencies, he

would have preferred to try to do it administratively.

But, that was not Colonel Herndon's decision ultimately to

make as to whether or not this lawsuit should be filed.

And asking for all these type of questions is

totally irrelevant. It goes against Colonel -- Judge

Hoeveler's ruling. It's protected by privilege. And we

think it is a complete and utter waste of time. We ask the

Court to deny the motion without prejudice to their right

to attempt to assert -- to seek answers through discovery

in a proper form.

Thank you.

THE COURT: All right. Thank you, sir.

All right. Then, in the interest of time – I

know attorneys can go back and forth on this, but we'll

turn to the second motion that I have before me. And I'm

trying to keep with what has been said to me earlier I

think that the next one that I called was the No. 4 motion.

That was the District's emergency motion for a temporary

restraining order. Is that a motion that should be heard

 


37

 

by oral argument? Ms. Ahern, you're standing up; so, I

guess --

MS. AHERN: Thank you, Your Honor. Laura Ahern

for the South Florida Water Management District.

THE COURT: And do I have this in the proper

context? There was a motion for a -- that was by

telephone. I did sign, I believe, a temporary restraining

order. Is that correct?

MS. AHERN: That's correct, Your Honor. So, we

have argued this by phone to you.

The next of the motions you have on your list,

the motion for injunctive relief in connection with the

documents we discussed, is briefed and that would be ready

to be argued at this time.

THE COURT: All right. Why don't you state your

position then.

MS. AHERN: Thank you.

Our position, Your Honor, is we would like you to

extend permanently the relief you have granted in the TRO.

We'd like these privileged documents back and to have the

documents as attached to motions and quoted verbatim in

governmental filings sealed. I do this to preserve an

attorney/client privilege which I believe is very important

if this lawsuit is going to be fully discovered and

prepared and sensibly presented to Judge Hoeveler should

 


38

 

that be necessary next fall.

I think, in response to other motions you'll be

hearing next, we'll have need to discuss more about why

attorneys need to talk to scientists about cases like this.

I'll confess I have really no scientific background and my

callings seem to be -- I'm similarly lacking in being able

to understand a lot of the science here.

We haven't been privy to conversations, much less

documents or reports, that the Government has had its

scientists generating and turning out over the last two

years, but luckily we do have some patient and thoughtful

and knowledgeable scientists at the District with whom

we've been able to consult on a limited number of

occasions. In the depositions of those scientists we have

raised limited objections when the Government has attempted

to get into the substance of attorney/client communications

and other work product materials which were requested by

litigation counsel and developed for use in the defense of

this lawsuit. The two documents for which you granted the

TRO are of that nature.

There was a meeting that was requested by

Litigation Counsel Jerry Jackson, and the meeting became

known to the Government. We fully let them know when it

occurred, who participated, who requested it. They know

who Jerry Jackson is. They've been dealing with him for

 


39

 

two years. And the claim of attorney/client privilege had

been raised on several occasions.

I think it was maybe the third or fourth time

this -- this meeting was addressed in a deposition. Two

documents were pulled out of the hat which relate to the

meeting. This was the first time that the District, in

fact, became aware that these three pages of literally

millions of pages handed over to the Government for its

review and copying were in the Government's possession.

I was the attorney defending that deposition. I

immediately raised the attorney/client and work product

privileges as to those documents and requested their

return. We confirmed that the deponent was not the author

of either. But, the Government refused my request. We

moved on in that deposition. That deposition continued

through the next week; and we immediately proceeded into

another deposition of an expert witness designated by the

Government, Dr . Paul Parks.

We knew what the Government's position on

inadvertent waiver of privileged documents was. At least

we thought we did. They had argued very vociferously that

such documents whenever inadvertently disclosed should be

immediately returned and not used by other parties in this

lawsuit. The District is subject to such an order

regarding quite a number of documents that were produced


uparrow.gif (122 bytes)                                                                                                                                    40

 

numerous times. You have the representation in the

pleadings of litigation counsel as to why the meeting was

called, by whom, and for what purpose; and I too am on

record in deposition, Your Honor, as to the purpose of this

meeting and its reflection in the two documents we're

discussing.

These documents were inadvertently disclosed, and

the Government has not presented any case law that would

suggest that our document production and review procedures

were in any way lacking. This is the first of the

five-prong Parkway Gallery test. We've noted, I believe,

three cases -- reported cases that describe document review

procedures that probably weren't as strictly adhered to or

as well-designed to detect privileged documents as the

District's were. Instead the United States only argues

that, "Well, if the documents came out, your procedure must

have been lacking." But, that result-oriented test

certainly is not the approach to take. We've described in

affidavits what affirmative measures we took to catch

privileged documents, and they fully pass muster under the

case law.

The Government has Pointed out, "Well, geez.

these documents came out of scientists' files. They aren't

the kinds of documents that this Court has had to address

before -- documents which came out of the files of

 


41

 

litigation counsel." And Your Honor, I'll certainly

concede that that distinction is correct. The District did

not turn litigation files over to an unsupervised third

party that had a history of passing on unrequested and

unexpected documents to the opponent. These were three

slim documents -- three pages -- two slim documents out of

a massive production that was done under the compulsion of

Rule 34.

The Government seems to concede that we have

satisfied the second and third factors of the Parkway

Gallery test.

On the fourth, I submit that, given the pace of

the discovery at issue, the fact that we thought we knew

the Government's general rules for dealing with

inadvertently disclosed documents until we learned that

they had been filed with the Court and then on that day

responded -- shows that we did take appropriate and

diligent actions to remedy the breach of our confidential

conversations and documents once it became known.

The fifth factor, Your Honor, requires you to

look at the overall interests of justice in this case.

It's a balancing test. And here, although you've listed

many motions which we've acknowledged are not fully briefed

and therefore we're not going to argue today, I would

encourage you to look at the full panoply of outstanding

 

 


43

 

discovery disputes here and the relative success of the

District versus the United States to gain access to

discovery that's been requested as much as eighteen months

ago.

Mr. Rodgers made reference to the fact that we're

still waiting for discovery of many of the issues we hoped

we resolved in our argument before you in September. We

have a motion to compel production of documents that we've

requested over seventeen months ago -- also motions with

regard to discovery concerning a remedy team and the

Government's privileged list.

On the whole, we're doing our best, but we've

been quite thwarted in getting behind the Government's

scientific case here. We seem to learn more here before

Your Honor when they disclose for the first time their

scientific evidence than we've been able sometimes to

accomplish through discovery.

So, the overall interests of justice, I think,

squarely weigh in the favor of the District here; and in

that light, I would ask you that you make the temporary

injunctive order -- temporary restraining order permanent

and compel the other parties to return the privileged

documents and seal the relevant court records.

THE COURT: All right. Thank you, Ms. Ahern.

Ms. Ponzoli.

 


44

 

Maybe it's obvious here, Ms. Ponzoli, but just

(inaudible) -- I don't have (inaudible). Why are you

arguing over three pieces of paper so much? Are those

documents that important to the Government?

MS. PONZOLI: They're biggies.

THE COURT: All right. (Inaudible).

MS. PONZOLI: They're biggies. They are the

nexus between all of the changes that have been made, Your

Honor , in the SWIM Plan.

And I really submit that Ms. Ahern has not met

her burden of proving -- you have two things on the

permanent injunction.

She has to prove that they're privileged. That's

her first burden. And I submit she really didn't address

that other than just telling you, "We need to be advised

about some science; and so, we met with our scientists."

She has to prove that it was a communication done in

confidentiality between an attorney and a client seeking

legal advice. That is the fundamental basis of what goes

on, and that is the distinguishing point in all of the

cases, Your Honor, that looks at when you mix technical

information with other legal advice. What was the primary

purpose? Was it to seek legal advice, or is it some

mixture of the two? What's going on here?

After she meets the burden -- it's her burden,

 


45

 

not mine -- of proving that the attorney/client privilege

applies, then she has to prove that, in fact, it has not

been waived because of the disclosure.

You're going to have to give me a few minutes to

get myself together here because what I did was -- I

thought we would argue my motion to compel first, which

involved Urban and her two documents and then Davis and his

two documents, and I would show you why the attorney/client

privilege does not apply in this case, and then I would

argue the preliminary injunction.

THE COURT: Well, that probably makes more sense,

but unfortunately we did it just backwards.

MS. PONZOLI: We did -- you did it fast-forward;

so, give me a second and I will pull -- I will pull myself

back into the frame that you're listening to it.

Proceeding to the two documents that were

produced in Mr . Davis's deposition, I'm going to have to

discuss these documents, Your Honor, and I'm going to need

to discuss specifically things that have happened. If

that's going to be offensive and cause people to get upset,

I don't know what you want to do about the courtroom or

having people leave or having only Government attorneys and

District attorneys here. You have the documents before

you. They are attached to my motion to compel.

THE COURT: Yes, I've seen them.

 


46

 

MS. PONZOLI: Okay. And I need to discuss with

you very specifically wat is in those documents so that I

can show you why it is so important that we be allowed to

proceed; so, I don't know how You want to handle that.

THE COURT: Well, (inaudible) proceed.

(Inaudible).

MS. PONZOLI: Okay. Very good.

MR. RODGERS: Your Honor, we object. There's

press in the courtroom. And I think Ms. Ponzoli is trying

to blow this completely out of proportion as though this

was some kind of lawyer's perversion of science. I can

guarantee you that it’ll be all over the Fort Lauderdale

paper tomorrow if presented that way. There's got to be

another way to do this in a more orderly fashion.

THE COURT: Well, I don't understand -- I

understand the documents and I understand the position

about the documents. But, what is it -- what I 'm not

understanding is what you intend to tell me that Mr.

Rodgers thinks shouldn't be said.

MS. PONZOLI: I think he said it about as well as

I can say it. I think they've perverted science. I think

that's exactly what's gone on, Your Honor. I think that

these two memo are the nexus between the changes in the

SWIM Plan as it first came out and the changes that exist

in the present SWIM Plan.

 


47

 

MS. AHERN: Your Honor, when we get to the

Government's motion to compel, you'll see deposition

transcripts with the testimony of these and other District

personnel who have explained what the Government -- in

painstaking detail how the SWIM Plan has been put

together -- what they're doing scientifically. This is an

opportunity for counsel to speculate and to draw a lot of

innuendo from a one-sided reading of documents which we're

trying to maintain the privilege on.

You asked about the importance of these two

documents --

THE COURT: What are you suggesting -- what does

the District suggest?

MS. AHERN: I suggest that at this point it's

well-briefed in the Government's motion. They've gone

through their reading of the documents on their face, and

they've argued that in writing to Your Honor. And I submit

that you can decide it on that record, rather than

compounding their repeated recitation of these privileged

documents.

THE COURT: Well, I think that the documents have

already been introduced as exhibits rightfully or

wrongfully, that the position that Ms. Ponzoli is going to

give is the Government's position as to these documents,

that this is an open court, and that this is a hearing

 


48

 

that's in an open courtroom; and so, I'm going to hear it

here. And I understand this to be the position of the

Government. And I will also hear the position of the

District as to these documents. But, I don't see that

anything further is going to be disclosed here that has not

already been made a public record in this case. So, Ms.

Ponzoli, please continue.

MS. PONZOLI: All right. Your Honor, looking at

the first memorandum, you have a communication from Paul

Whalen (phonetic), who's in the Environmental Planning

Division, to an in-house counsel, who is the equivalent of

a client in this particular case, and then a significant

number of scientists; and he says that they are going to

discuss the Everglades SWIM Plan technical information and

that the purpose of the meeting is to define existing --

already existing scientific results as they pertain to the

development of the Everglades SWIM Program.

There is no communication that shows

confidentiality here, which is a primary element of an

attorney/client communication. It is not to a litigation

attorney; it's to an in-house counsel who has never

appeared in this case. Ms. Quincy is not a legal counsel

for the purposes of this litigation; she is a client for

the purposes of this litigation. And there is virtually no

mention of seeking legal advice at this meeting.

 


49

 

These are scientists getting together. They're

meeting with their counsel. I guess they're explaining

what the science is. That's not a privileged communication

under the law. The case law will not support that as

privileged. Attorney/client is an exception to the

Anglo-Saxon law that says that every witness should say

what he knows, and it's strictly construed.

If you look at the notes -- if you look at the

notes that another scientist took of this meeting, what

they reveal are things that have happened to this SWIM Plan

between the fall of '89 when it first came out and it

significantly supported the Federal Government's factual

case and what it now looks like one year later when it has

changed in many significant ways.

I have attached to my reply brief a number of

charts that show these changes, and I would like to show

them to the Court. And they reference -- and this is where

I think that -- you know, I wanted to point out to the

Court -- I am going back to these documents to discuss.

When you look at Government's Exhibit (d) and you

see that it says the -- you look on the second page of the

document -- Mr. Harrison, may I have those exhibits? Can

you see those, Judge? They're the same exhibits that are

attached to your reply.

THE COURT: Yes, I've seen them.

 


50

 

MS. PONZOLI: There's nothing that's not on

notice here.

THE COURT: (Inaudible).

MS. PONZOLI: You see the .03 milligram total

phosphorous concentration, and then it says, "TP .05."

What you see from my exhibit is that, in the first SWIM

Plan, this number, .03, is the equivalent of a threshold;

and what that means is beyond that you have vegetative

changes occurring that are violations of Florida law.

Based upon essentially the same science, the same reports,

the District now is saying it should be .05.

What I am trying to find out, Your Honor -- what

exists here that you can't see is there's like a little

filter that runs through these two SWIM Plans, and that

little filter is called an attorney. I guess he's a super

scientist. I have a right to discover what went on that

changed from .03 to .05.

I have explained in my brief that that minute

difference -- while it may not impress this Court as being

anything very significant, it is, in fact, potentially the

difference between the Everglades remaining as it was

historically and changing over time completely. And the

cost of fixing the Everglades for every one-hundredth of a

point in that threshold is millions of dollars. It has

enormous impact on this case and the remedy that would be

 


51

 

given in this case.

THE COURT: And why do you need these documents

that we're talking about to do that?

MS. PONZOLI: I need to ask these scientists who

went to this meeting, "Why did you change from .03 to .05?

Did you change because you were instructed to change?" If

I get that answer, I will stop there, Your Honor. If they

tell me their lawyer told them to change, I don't have to

go beyond that. That's all I need. At that point I don't

have to say, "Why did he say change? What were all of his

reasons? What's his strategy?" I don't want their

strategy. If a scientist said change, I have a right to

know that a scientist said change.

I can't find this out. Ms. Ahern is right. We

have gone through this deposition after deposition. It's

not getting better; it's getting worse. I cannot get

through that barrier.

The next document you'll see references how much

based on facts is the SWIM Plan. It comes right out of

those notes. Here you have: "Nutrient-rich discharges

created imbalances in microbial, parafiten (phonetic), and

macro-invertebrate communities." That is almost an

admission of a violation of state law right there written

by a scientist -- invisible barrier of whatever went on at

that March 1 meeting.

 


52

 

And we now have: "These phenomena all provide

circumstantial evidence that elevated nutrient

concentration in waters discharged are causing shifts," and

on and on. And it's a nice gobbledygook language. It's no

longer clear and no longer straightforward.

I have a right to know why this scientist wrote

this, why there's a barrier, and why it now becomes

gobbledygook. The public has a right to know this. This

SWIM Plan that they're going to offer up as something

written by scientists -- this SWIM Plan is at once the best

hope and the worst disaster for the Everglades. It's

either going to do it or it's going to be -- it's going to

be nothing. This is a publicly mandated process. The

public has a right to know what's gone on in all of those

meetings that discussed the SWIM Plan. They have a right

to know the science.

I don't have to know their legal strategy. I

have tried again and again to separate out -- "Tell me just

the science. I don't need to know your legal strategy." I

believe in the system. I believe that lawyers can have

their strategies and not share them with the other side.

That's inherent in our system.

The next one -- the next one shows that, under

Water Conservation Area 1, which is one of the properties

that we're fighting over, (inaudible) -- it comes straight

 


53

 

out of that memo -- "agrees too high nutrient levels in

Water Conservation Area 1." This is Loxahatchee National

Wildlife Refuge. This is a piece of Federal property and

one of the two pieces of Federal property that we are

fighting over. Here the District is admitting that water

quality impacts into the perimeter of the water

conservation area marsh -- that they're occurring on our

property.

There's no mention in the revised form --

invisible barrier. I cannot get through. Why has this

disappeared? There are massive vegetative changes in the

Refuge, but it's no longer here in the SWIM Plan.

THE COURT: Well, what is the answer -- when you

ask that question without making reference to these

documents, what is the answer as to why that's disappeared?

(Inaudible) --

MS. PONZOLI: Most of them haven't read it. it

seems that a large number of their people didn't read the

final SWIM Plan. Evidently there must have been some tiny

group, that I haven't identified completely, who actually

pushed out this final SWIM Plan.

We know that the negotiations as to the funding

was done behind closed doors. That's a matter of record

all over the State. They went behind closed doors,

excluded the Federal Government, and decided that the

 


54

 

industry would have a limit of 40 million on its

responsibility to pay for the clean-up.

I mean this thing is tainted from start to

finish. And I have a right, if that's what they're going

to offer to Judge Hoeveler in trial in September, a year

from now -- if this is their answer, then I have a right to

show Judge Hoeveler this is not something that scientists

wrote; this is something that lawyers wrote. And that's

okay. And if they want to put up something as their

defense that lawyers wrote, then so be it -- but not the

scientists.

And they're going to put their scientists up; and

the truth is, Your Honor, they have a lot of good

scientists -- a lot of really good dedicated people. Ms.

Urban and Mr. Davis are two of them. These are people who

care about what they do. They didn't write that second

thing.

Here you've got "purging the US Government." It

comes right out of those notes of that meeting. You've got

references to US Fish & Wildlife, Belanjer (phonetic), to

Shite (phonetic), to Arthur R. Marshall, Loxahatchee

National Wildlife Refuge. In the final draft these are

missing. They're gone.

That's not the end of the world. The biggest one

is the .03 to the .05. I'll tell you very clearly that's

 


55

 

the biggest one that I've mentioned all along.

"Appears that nutrients cause cattails." In the

first draft they had:

"In a nutrient-enriched habitat, such as the

north end of Water Conservation Area 2(a),

relatively high rates of growth in nutrient

uptake predictably allow cattail to dominate

available space, light, and nutrient resources to

the exclusion of saw grass."

Urban -- Ms. Urban is one of the ones. I'm

fighting over her documents. She has done the direct

relationship between expanse of cattail into saw grass and

the surface water concentrations -- the high levels of

nutrients.

We're just talking about fertilizer growing

things, Your Honor. It's very complicated, but it's very

simple. Fertilizer grows things, and it grows the wrong

things in the Everglades.

"Also note a correlation of cattail expansion

into saw grass in relation to surface water

phosphorous concentrations -- (inaudible).

(Inaudible) -- the cause and effect now is

something that's up for grabs."

"You prove it if you can, Ms. Ponzoli, but you're

not going to have our stuff to prove it." And that's what

 


56

 

they're doing. That's what they did with Ms. Urban.

That's why I'm fighting so hard over her documents.

They've got her documents going through this attorney

filter that I can't get through.

You've got Mr. Davis admitting in his deposition

that he was aware that the SWIM Plan was being faxed to the

attorneys at Scad & Arps (phonetic). When I asked him how

he knew that, I was shut down in finding out where he had

found that out, and it appeared that he had heard it in

this meeting from an attorney -- that he had actually heard

this from this meeting.

Courts, when they look at an attorney/client

privilege, they are supposed to balance the need to

disclose the relevant information against the need to

encourage open discussion by clients with their lawyers.

The SWIM Plan is an open process. That information is

supposed to be open to all of the public. And that is not

a process -- that is a process that has a heavy, heavy

weight of openness about it.

I can tell you that, if I can get into why these

changes occurred, if attorneys told them to do it, I will

stop there. I don't need to know their reasons. I will

simply stop at that. But, I have a right to know.

I do believe, Your Honor, if you rule that these

documents are attorney/client privilege and that I cannot

 


57

 

ask questions, then that ruling has got to say that it is

because the SWIM Plan is an attorney-written document --

that it is a legal document written by attorneys with legal

advice for their client. That has got -- that can be the

only natural conclusion that grows out of their having an

attorney/client privilege for all of this.

What -- the relief I want is I want to take these

documents and I want to be able to ask Mr. Davis what went

on at that meeting. Why do we have these changes? Did the

scientists sit around and say, "I don't feel comfortable

with .03." "We've got to make it higher." "It should be

lower." What did they say?

THE COURT: Well, that gets back to my first

question. why do you need those documents to ask that

question?

MS. PONZOLI: Because the nexus is there. The

exact points that they've changed are all in the document,

Your Honor.

THE COURT: Well, you have access to the document

at least for now. And if you were to (inaudible) -- go

back to the critical -- the .03 versus the .05, I believe

it was --

MS. PONZOLI: Right.

THE COURT: -- and say, "Why has it been changed?

Why is it now in the final draft …" -- I think it is the

 


58

 

final -- "Why is it .05? It was .03." You're asking a

scientist that question. And have you asked that question?

Does he have an answer to that?

MS. PONZOLI: Most of them haven't read it. I

haven't asked their -- Dr. -- Mr. Swift.

THE COURT: Haven't read the final?

MS. PONZOLI: Well, the ones that I've asked have

not read the final draft. They haven't read the final

draft of the SWIM Plan.

THE COURT: So, then how is this document going

to help you? You'd say, "Here, take a look at this. See

where it says," whatever it says. Then --

MS. PONZOLI: Mr. Davis was there, and Ms. Urban

was there. Whoever else was listed on that first thing was

there. If I ask each of them, "Who said to change it? Who

said to do these things?" -- and if Mr. Jackson is the one

who said to do them, as an attorney, telling them how to

write their scientific document, that's good enough for

me --

THE COURT: Well, I would suspect --

MS. PONZOLI: -- because I'm going to go straight

to Judge Hoeveler with it and I'm --

THE COURT: I would suspect that would be the

best you could hear.

MS. PONZOLI: That's the best I could hear. That

 


59

 

is the best I could hear. And I'm entitled to hear that,

because that is not a privileged communication when it goes

to an open public process.

THE COURT: Well , why can't you show the --

certainly the final draft is not -- that's public

knowledge. Isn't it? I mean, that's --

MS. PONZOLI: Oh. it's public.

THE COURT: So, you could show the two drafts and

say, "Here's the final. Here's what it was. Here's what

it is now. Why did it change?" Can't you ask that

question like that without using these documents?

MS. PONZOLI: And what if I don't get answers?

THE COURT: Well, then you would use it and say,

"Here, I have another document which suggests that the

answer is …" -- but, I think that's the purpose of the

document -- to try to confront whatever the answer might

be -- not to elicit an answer, but to try to confront --

MS. PONZOLI: But, I think what went on in this

process, Your Honor, is important. Isn't it? If we had

super scientists from Scad & Arps --

THE COURT: It depends on whether they had

knowledge of it, it would seem to me. And that is, if a

scientist was responsible for making the change -- and

presume for the moment that a scientist did make the change -- and

(inaudible) -- I don't know who did it, but just presuming


uparrow.gif (122 bytes)                                                                                                                                   60

 

that it did -- couldn't a scientist say, "We have to change

from .03 to .05 for 'x' reasons," and then give a bunch of

reasons why.

MS. PONZOLI: He could. But, if a lawyer had

told him to do that first, you wouldn't find that

persuasive?

THE COURT: Well, that's your -- apparently the

Government's theory here, and that is that this has become

a legal document or a legal defense. I understand that.

But, it seems like there's another way to ask the question

without the use of the document; and that is just to

compare the two and ask a scientist who was responsible for

that, without getting into the question about the document

itself. And that's why I asked you initially: Do we have

to -- you know, are those documents (inaudible) critical --

MS. PONZOLI: They are. They are that critical,

Your Honor.

You've got two massive documents that are about

this thick on each side; and when you start comparing them

at trial, itis going to be a mind-boggling job to start

comparing three or four inches on each side.

I believe that they do not meet that burden of a

privileged communication. Is there any portion of them

that you can tell me that somehow you feel really does fall

into that and let me address that part of it?

 


61

 

THE COURT: No. I haven't prejudged it, Ms.

Ponzoli.

MS. PONZOLI: Right.

THE COURT: I'm just curious as to how it is that

it's so important and how critical it is or why is it that

these three documents are the only way that you have to

obtain the answer to the questions that you want to have

answered.

If you can swing into -- and then I'll have Ms.

Ahern respond to anything you've said and also what your

motion is -- but, if it does relate to the -- I think it's

the motion to compel answers of two scientists here --

MS. PONZOLI: Right.

THE COURT: Let's try to handle that at the same

time.

MS. PONZOLI: Okay. May I please --

THE COURT: Yes. Let's --

MS. PONZOLI: -- finish the preliminary

injunction, because I believe that -- in addition to the

fact that they are not privileged communications, I believe

that the District has waived -- if there were a privilege,

they have waived that privilege, because you need to

realize that at the time they turned over these documents

they had four opportunities to review what they had given

us. When they gave them to us they were reviewed, when

 


62

 

they took them to the microfilmers they were reviewed, when

they came back they were reviewed, and when we sent them

the hard copies they were reviewed. Four opportunities

they could have picked up these.

The disclosure, as I've tried to explain to

you -- maybe not successfully -- I don't know -- I think is

a phenomenal disclosure -- that the SWIM Plan has been

totally effected by the attorneys. I think there have even

been public discussions by Mr. Adams on the Water

Management Board that that is, in fact, the case; and he's

very disturbed by it. There is --

THE COURT: So -- let me just clarify.

MS. PONZOLI: Yeah.

THE COURT: When you're saying a waiver, you're

really saying that it wasn't inadvertent or it was

inadvertent but they should have caught it? (Inaudible) --

MS. PONZOLI: It doesn't meet the Parkway

standard, Your Honor.

THE COURT: All right. Thank you.

MS. PONZOLI: It doesn't meet the Parkway

standard for an inadvertent disclosure. They've just

waived it because they didn't do it properly.

The delay, I think you need to understand and I

think you do understand, is five to six months that went

by. Ms. Ahern said that she asked for them immediately,

 


63

 

which is true. She did. And then she sat around and

waited two weeks. The burden fell on me to do something.

I clearly don't agree they're privileged. I mean, you may

rule against me, but it's clear how I feel; and I made it

clear in that deposition how I felt.

So, she leaves the burden to me to file

something. So, I did. I filed something. She waits two

weeks before she files her motion for TRO -- waits another

week to ask for an oral argument And it's one month down

the road before we ever see a substantive argument from the

District that, in fact, these are privileged communications

that they should be allowed to assert and pull back from

me.

I think the delay is one of the important

factors. I think it cuts hard against the District. I

think the extent of the disclosure cuts hard against the

District. And I think finally the overriding interest of

justice -- and this has nothing to do with whether they

think I owe them more documents than I think they owe me

more documents. It has nothing to do with that. It is a

balancing of the interest of the public in a publicly

mandated process -- whether that should be open to the

public or whether they can shut it down under this

attorney/client blanket that they're throwing over it.

I believe this interacts with my other argument,

 


64

 

which I will --

THE COURT: Can I ask you one question, Ms.

Ponzoli?

MS. PONZOLI: Yeah.

THE COURT: The -- perhaps it's all of what

you've said. But, how is this so different from the

previous inadvertent disclosure by the Government?

MS. PONZOLI: These weren't from an attorney's

file.

THE COURT: That --

MS. PONZOLI: The hand notes are a scientist's

hand notes.

THE COURT: That would be the critical

distinction, as you see it?

MS. PONZOLI: Well, you remember, Your Honor, you

didn't give me back all of my documents.

THE COURT: No. I --

MS. PONZOLI: You gave most of them to them. You

only gave me thirteen documents back. Half of those were

in my handwriting.

THE COURT: I believe that it was narrowed down

by the parties. But, that's right. There were only

thirteen of the fifty-four, I think --

MS. PONZOLI: You kept -- there were 220 pages,

and you gave me back 75 pages, and the others went over.

 


65

 

They kept those. They were not privileged in the same way

I believe these are not privileged.

And the delay is unbelievable. Within

twenty-four hours I asked for mine back. Within ten days,

not one month, I had my substantive brief sitting in this

court saying why they were privileged. I did not sit

around and put the burden on the other party to start

filing a motion. I filed my motion myself and I came to

seek them.

THE COURT: All right.

MS. PONZOLI: So, I think there's a pretty big

difference in what they were and in the time that the

person who wanted them back -- and going back to my motion

to compel, what --

THE COURT: You're talking about now for Urban

and Davis?

MS. PONZOLI:  Right. For Urban and Davis.

Going back -- backing up with Mr. Davis. I will

tell you this, Your Honor. I did with Mr. Davis try to

sort out the scientific technical discussion of that

meeting from the legal -- any legal part, and I was allowed

nothing. I can have nothing from that meeting. I made an

effort to say, "All right. You sort it out. Give me the

part that's just the science. You keep your legal part.

And I'll be satisfied." And nothing -- I get nothing. I

 


66

 

don't go through that barrier. It sits there like a stone

wall.

In Urban's deposition, what happened with Ms.

Urban -- she's a biologist for ten years. Mr. Davis is a

biologist for twenty years. They were instructed

repeatedly not to answer -- repeatedly. What you have from

Ms. Urban is Ms. Urban is the one who is doing the research

that began before the lawsuit in 1986 on cattail expansion

into saw grass in relation to surface water nutrient

concentrations. She is doing, Your Honor, the direct

cause-and-effect relationship between, if you will,

fertilizer and these monocultures of a different

vegetation.

And I have to tell you, in preparing for this

hearing, it occurred to me that I really believe that you

are making some of the most important rulings that will

occur on this case. This is a very fluid case. It evolves

and moves over time.

I think that it would be a very good idea if we

were allowed to take you on a site visit and let you do by

helicopter -- become familiar by helicopter with what the

District is talking about, with what I'm talking about --

put you in a helicopter with counsel of the parties and a

scientist and take you over this system for a day.

And then, when we come in here and we're talking

 


67

 

about some of these issues that to us are life and death --

we've lived this for two years. We've fought it for two

years. We care. I mean, we all care. Everybody cares in

the room. It's not something that anyone feels

dispassionate about -- then you would understand better and

you would have a better factual base.

And so, I offer that to you; and if you're

available, then I '11 work with the parties to set it up.

We'll arrange it through the Park or whatever.

THE COURT: Well, I'm going to see how I can do

without that.

MS. PONZOLI: Okay. It's up to you.

THE COURT: (Inaudible) --

MS. PONZOLI: It's pretty interesting.

THE COURT: I don't doubt that. And I can

assure -- I can -- I do know what cattails are.

MS. PONZOLI: Okay.

THE COURT: But, I'm sure --

MS. PONZOLI: Do you know that they smell like

rotten eggs when they grow in a monoculture? They're

pretty bad.

She started this research in '86. I subpoenaed

her duces tecum to come to her deposition, and what I asked

for was -- I asked for this. I asked for all the documents

in her possession that went to this publication "Cattail

 


68

 

Expansion in Response to Nutrient Loading." Then I asked

for internal and external reviews and comments and all

documents concerning the decision timing. I had two other

requests -- probably three other requests that covered the

documents that I wanted to obtain.

I began to question her about her publication --

her research. She produces a peer review sheet that's

attached to my motion, and it lists Dr. David Black. And

she tells me in her deposition, despite the fact that

many -- very many of the reviewers -- the peer reviewers of

her publication were satisfied with her work or had only

editorial comments, she's redoing it completely. So, I

began to ask her who reviewed it and who liked it, who

didn't like it, who was satisfied, who had problems with

it; and it comes out that there have been these two peer

reviews within the District she has not produced to me.

One is by Dr. Black, who is on her peer review sheet; and

one is by Dr. Grimshaw and Mr . Swift.

And to make a long story short, what has happened

is counsel have requested Dr. Black, Dr. Grimshaw, and Mr.

Swift to review this critical publication and to write them

back telling them whatever they instructed them to tell

them. Ms. Urban never has the benefit of a discussion with

any of these three scientists, who are really above her at

the District. They pass their memoranda past her -- the

 


69

 

that are directed to the attorney. They go past her.

acts on what they've said, but she never has a -- she

have a copy of her own. She doesn't get a peer

review back of her own. They go swinging back to Scad &

Arps.

When I try to find out what were their critiques,

which of her conclusions they disagreed with, and what is

she doing to reevaluate her data in response to their

critiques, I am told every time attorney/client

privilege -- "You may not get an answer, Ms. Ponzoli. You

will get nothing. This is a privileged communication --

which of them." And so, I cannot find what she is doing in

response to them, which conclusions they disagreed with,

and what she is doing in -- what she's doing to -- I can

find out what she's doing to reevaluate her data. She will

tell me, "Before I did my data this way. Now I'm doing my

data this way.

Well, I can tell you one thing about the way

she's doing her data. Before when she did her data, she

borrowed a direct cause-and-ef f ect relationship -- one

variable to another. Now she's going to have multiple

variables, and you'll never be able to sort out the expanse

of the cattail to the nutrient concentrations.

I believe that that is -- that is not an

attorney/client privileged communication. Even though this

 


70

 

science."

He says:

"We want scientific information opened up in this

case, and we don't want artificial restraints

placed on it."

In his brief he said:

"Just as under the Work Product Doctrine

discussed above and as well-established under the

attorney/client privilege, facts and opinions

themselves are not immune from discovery. They

cannot be concealed from requesting parties by

telling them to counsel."

I guess what he meant was the Federal

Government's science has to be opened up, and we opened it

up, Your Honor. My science may not all be sitting in their

hands, but you have ordered me and I understand myself to

be under your order to turn over my science. It is only a

matter of time, not a matter of whether. We opened it up.

And their science was opened up too in my opinion.

Your order reads that -- Paragraph (a)(5):

"All persons identified as expert witnesses, as

required in this court order, shall at the

request of any other party produce all scientific

data, test results, written reports or opinions,

or any other documents formulated, used, or

 


72

 

relied upon in any manner whatsoever by that

expert or consultant in formulating anticipated

testimony and/or expert opinions in this case."

All three of these scientists are experts for the

District. Mr. Swift is a testifying expert. Dr. Grimshaw

is a testifying expert. In their descriptions of what they

will testify on, for Dr. Grimshaw, he will testify on

interpretation of scientific data, probative value of

existing data and studies -- I guess that includes Ms.

Urban's. I don't know. I have no way of finding out.

David Swift will testify on impacts of nutrients on wetland

ecosystems, assessment of various scientific studies

relating to water quality and algal and floral species

distribution -- it again sounds like he will testify on the

value of something she's done. I have a right under that

order to their evaluations and opinions of Ms. Urban's

technical publication. Dr. Black is an expert witness not

expected to testify, but your order covered consultants

too.

The parties agreed to this, Your Honor. We stood

here and we listened to all these public policy arguments,

and they were right. I mean, you can't argue against

what's right. The public policy is that the science has to

be open here. So, you can't argue against that. If you're

right, you're right. Mr. Rodgers was right. We opened it

 


73

 

all up. only now we find out we didn't open it all up.

As to what is in Ms. Urban's mind as to what they

said to her, if you go over in your order under Paragraph

(b)(2):

"All deponents shall answer all questions

regarding their factual knowledge or opinions,

regardless of whether any such answers reveal

factual materials contained in documents

previously withheld as privileged by any party."

So, by that order, what was privileged in those

documents -- I had a right to know what she knew in her

head -- what she had read their criticisms were, their

conclusions they disagreed with, and the data that she was

to reevaluate in a different way. I had a right to know

that. We had settled that on September the 10th, and it

was in your order.

And the weight of the order -- it's your order,

but it's also an order that was largely agreed to by the

parties. We didn't like fight over all this. In the end

we said, "All right. We'll open it all up." So, under the

public policy advanced by the District, under the parts of

the order that we all agreed to, those documents should be

available.

The relief I want is to have her come back with

the reviews in hand, and I want her to answer my questions.

 

 


74

 

And you know, it may be, Your Honor, that I agree with her

scientists -- that she did have to redo something for some

reason. I mean, maybe they were afraid of the agricultural

interest evaluation of her work and that it wouldn't stand

up somehow under there. I don't know. I don't have any

way of finding out unless they get -- let -- unless they

let me get to it. But, I do believe that these were not

seeking legal advice and that they should be available.

The case law on this is that technical

information is still discoverable. I have cited a number

of cases in my brief to you -- the Snyder case, the

Locktite case. You can't funnel (unintelligible) technical

or other information through the lawyers to get privilege.

And the weight -- you're to weigh the need for

confidentiality against the need to obtain information.

And I believe that -- I believe that the need in

this case is very great. I believe the parties recognize

that and that that should be what would happen -- that it's

not just the Federal Government's science that has been

opened up, because we have not claimed attorney/client

privilege for our science. The truth is, Your Honor, we

did a lot of it under work product privilege; and that has

been done away with.

We've all revealed our experts. Now that stuff

is open and available. So, I think that it's time for the

 


75

 

District to open up their science too.

Do you have any questions?

THE COURT: Just one question. That is: Black

and Grimshaw have been listed as experts, and Black and --

MS. PONZOLI: Swift. Yes, sir. All three.

THE COURT: -- Black and Swift --

MS. PONZOLI: Black, Grimshaw, and Swift.

THE COURT: -- as testifying experts. And I do

understand that the order that I previously entered, which

I do recall being agreed to in large part by the attorneys,

did not differentiate. But, these three persons have all

been listed either as testifying experts or non -- as --

two as experts you expect to have testify at trial and

one --

MS. PONZOLI: Yes, sir.

THE COURT: Have the memoranda or the reviews or

the critiques, as we've called them -- have they been

requested? They exist in writing, I take it.

MS. PONZOLI: Right.

THE COURT: And have they been requested by the

Government?

MS. PONZOLI: They're on their privileged list.

I mean, other than requesting them in my motion to compel,

no. Beyond that, no. It's my motion to compel that

requests them. I think they should have come in response

 


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to the subpoena duces tecum to her deposition.

THE COURT: All right.

MS. PONZOLI: They were properly -- properly they

should have been, you know, brought forth at that time.

And certainly subsequent to that hearing that we had and

the order, they should have been turned over and she should

have been produced again for deposition.

THE COURT: All right. Thank you, Ms. Ponzoli.

Ms. Ahern.

MS. AHERN: Thank you, Your Honor. I don't know

where I should start to clear things up.

I guess Ms. Ponzoli's last comment clarified

that, when we were here before you in September, we were

talking about raw scientific data, analyses of that data --

purely factual scientific information that had been

withheld under claims of work product. The Government --

the District wasn't seeking to compel production of the

Government's attorney/client privileged documents at that

time, nor did the discussion go that far.

Let me also clarify the chronology here of

discovery. The Urban deposition took place in the

magistrate's training room over there in August. I think

it was the first week of August -- before the hearing we

had with you, Your Honor -- before the order that Ms.

Ponzoli quoted from was issued.

 


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I think it also has become clear to you, Your

Honor, that despite the argument here, the seeming

agreement among the parties, and your ruling, we still do

not have in our possession all of the raw data -- the

scientific facts, the analyses -- were withheld as work

product -- that were clearly at issue back here in

September and that we believe are clearly within the scope

of your September 19 order, be that as it may.

I think on the face of it the Government's motion

to compel is only seeking to compel deposition testimony;

so, let me clarify that. We now seem to have rolled this

into a request to compel the production of documents, but

that's not apparent on the face of the Government's order.

More ironically, we asked the Government, "Why

aren't you seeking to compel production of these?" And

I they said, "Well, we have to wait until we see these

documents on your privileged list." The irony here -- the

District has continued to produce, up through the past

month, supplements to our document productions; and we

produced a privileged list to reflect responsive documents

withheld under claim of privilege for this ongoing,

continual document production; yet, we're still here

fighting to get production of documents we've requested

from the Government -- from up to a dozen governmental

offices that have not yet shown us one slip of paper --

 


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seventeen months ago.

At the Urban deposition, I instructed the

deponent to answer questions. I didn't instruct her not

to -- to not answer questions, but I told her, "You may

answer questions so long as they do not disclose

confidential communications between attorney and client."

Ms. Ponzoli seems to admit that, at least in all

technical respects, the two memoranda she has been

referring to are attorney/client communications. We also

claim work product to them, Your Honor, to the extent it

remains viable.

But, the attorney/client privilege is one that no

one has waived. No one's order no longer exists in this

case. And it's one that would apply to litigation

counsels' consultations with client representatives

transmitting information that's necessary to have in the

hands of litigation counsel so that we can advise our

client, defend this lawsuit, and represent its interests.

These two documents reflect reviews performed at

the request again of Litigation Counsel Jerry Jackson. I

don't know if you've maybe seen Mr. Jackson before, but let

me assure you, Your Honor, that he's here in the courtroom

with us. These were only two of multiple other types of

documents -- I think literally hundreds -- that were

produced in connection with Ms. Urban's research. The

 


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Government had already long ago been provided with all the

raw data, the field books, computer analyses, computer

floppy disks, charts, graphs maps, slides -- we went for

about two and a half hours having the deponent identify

slides.

Attached to our response to the motion to compel,

you'll find an excerpt fromNancy Urban's testimony. She

basically gives you the recipe of how to do her research

and what results she's had. She also explained what

reviews she had received aid why she was reevaluating her

data.

Ms. Ponzoli on --he record said, "Well, I don't

really buy your argument that it's a Mr. Lance Gunderson,"

whose analysis was presented and fully discussed, "who's

suggesting that you do this multi-varied analysis." I wish

I could tell Your Honor what impact that may potentially

have. But, Ms. Urban testified that it's a more sound

I statistical technique and, "I don't know that it's

necessarily going to change my conclusions. I'm doing it

because Lance Gunderson suggested it and I think it's

sound."

Ms. Urban was allowed to answer all questions

unless it would require her to reveal the substance of this

privileged communication between client representatives and

Mr. Jerry Jackson. So, the Government has had in its


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possession literally for months all of the information it

needs to do a similar assessment of Nancy Urban's work and

determine what potential evidentiary or other role it may

have in this lawsuit.

Quite frankly, Your Honor, I think that the

Government received a copy before it was even produced

through discovery. Mr. Mark McFay, who is a listed expert

witness for the Government and has been a case agent

apparently for quite a long time on this case, received

directly from Ms. Urban a review copy.

So, they've known about her research, they've had

the external review draft, and they can look it over and

advise their clients on what type of role, if any, it may

have in this lawsuit.

The District attorneys similarly need to be able

to conduct those types of consultations with scientists so

that we can prepare to present this very difficult and

highly technical case to Judge Hoeveler.

Ms. Ponzoli has been able to get behind the

substance of Ms. Urban's work, the reviews she's received,

and why she's reanalyzing her work.

We've also attached excerpts from Ms. Marguerite

Cook's deposition. She reviewed both the internal and the

external review of this draft for Ms. Urban, and she was

allowed fully to explain why she thought Nancy had to go

 


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back and reanalyze her data . The conclusions were too

premature. The work needed more work. Ms. Urban herself

testified to this.

Now, if Counsel for the Government just doesn't

want to hear that -- I think you have to look at the

record, Your Honor, and youll see that the testimony is

there from Ms. Urban explaining -- answering all the

questions which Ms. Ponzoli now tells you she wants to ask.

She has asked them, and thedeponent answered them.

The same is true with regard to Mr. Davis.

We have claimed attorney/client privilege to one

meeting called at the request of and with litigation

counsel. Other meetings concerning science being conducted

at the District and concerning the formulation of the SWIM

Plan have been delved into extendly [sic] and repeatedly by

the Government attorneys during depositions. We've

attached excerpts from the Goolic (phonetic) and Branscom

(phonetic) depositions to show you exactly how much detail

they've been allowed to get into unfettered -- the who's,

the what's, the why's of things that were in SWIM Plan

drafts -- how things were changed and modified.

The same process -- I did not submit this as an

exhibit from Ms. Cook's deposition transcript, Your Honor,

but I'd be happy to give you the excerpts that show where

she too was allowed to go through painstakingly parts that

 


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were in an earlier draft to determine whether she knew if

there was a basis for changing that in subsequent drafts.

With regard to Mr. Davis, who of all these -- of

the scientific deponents was the one who really had had a

role in helping to draft and then review later versions of

the SWIM Plan, because we were talking about stacks of

documents like this, I actually suggested, I believe, that

the deponent take these voluminous materials home overnight

so he could read them more carefully without attorneys

I breathing down his neck, come back the next day, and point

out for Ms. Ponzoli line for line everything that he

believed he had authored or edited in those various drafts.

She was unfettered in asking him, "Well, why --

if this is different from that, why did that change?" The

instructions not to answer were only made when it would

have required him to reveal the substance of privileged

communications which occurred at the meeting with Mr.

Jackson.

Again, I think all of the why's and the what's

and the wherefore questions that Ms. Ponzoli tells you that

she wants to ask, she has asked; and to the witnesses'

ability, they've been answered.

I think, if you look at the magnitude of this

case and the discovery that's been conducted, it's really

rather amazing how limited and how narrow the District's

 


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use of privilege and specifically the attorney/client

privilege has been, particularly if you compare it to the

vast reams of scientific data that have been withheld under

a mishmash of other privileges underscoring evidence which

the District is going to need to confront at trial.

I think in that vein too you can see, in the

magnitude of this type of litigation, our accidental

disclosure of two very slim documents through the discovery

process is excusable; and it's one that should be remedied

by making the temporary restraining order permanent.

Just to clarify a few things about the document

productions, Your Honor. We were talking about millions of

documents. I think we had 187 -- they're not banker boxes.

They're like -- again, as voluminous -- stacked up --

routing into the Government's attorneys to be reviewed.

And then they went to their microfilmer. We have people

collecting and (unintelligible) the documents going in. We

would have needed an army to review these documents at

every junction when -- where Ms. Ponzoli suggests that they

would or should or could have been reviewed. It would

simply be a logistical impossibility. But, we certainly

complied with all of the provisions that have been found

adequate in the Transamerica and the Kansas/Nebraska Gas

Line and the other cases we've cited in our brief.

I think, again, you can turn to the fifth Parkway

 


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Gallery factor. And it's important that discovery proceed

fairly and equally on all fronts here among the parties.

Litigation counsel have a really daunting task getting a

grasp on the science -- and having the ability to consult

with knowledgeable scientists so that we can assure we can

present it properly, but also get timely access to

information that's been developed -- raw data -- pure

scientific data that's been developed and not yet provided

to the District.

With that, Your Honor, I'd ask if you have any

questions.

THE COURT: Can you just focus in on these

documents that we're talking about here now. These -- as I

read it, there are memoranda or critiques or reports that

have been submitted by these three doctors which -- I know

it's -- I've read your position. So, you're saying the

Government shouldn't be able to get this by asking Ms.

Urban something that they can't get by requesting a

document itself, or at least that's part of the position

that the District has taken.

But, why is it that -- and I don't know that

you've addressed one question that I had when I came --

when I was reading this. How is it that this isn't already

encompassed under the September order -- these particular

reports?

 


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MS. AHERN: Well, Your Hoiors again, this

deposition occurred a month and a half before your order.

THE COURT: Right. But , now we have the order

MS. AHERN: Right.

THE COURT: So, why isit that whatever -- in

whatever form it's in -- is it because it's not science?

Is it because it's something else? Why is it that it's not

under the September order?

MS. AHERN: Well -- I'm sorry.

THE COURT: I 'm talking about the -- what they

wrote -- that Black, Swift , and Grimshaw -- I think it

is -- why isn't that -- why aren't we now under that order ,

and why shouldn't they be produced pursuant to that order?

MS. AHERN: Well , they haven't specifically been

requested pursuant to that order , Your Honor . That order

and the proceedings that led up to it did not specifically

address the attorney/client privilege. I would feel myself

quite derelict in defending my client and preserving its

privilege without very clear guidance from the court that,

"You don't have that privilege any more to invoke." I

certainly --

THE COURT: Well, I don't think that the order

threw out the attorney/client privilege. I don't think

that was the intent of the order, nor was that the

agreement of the attorneys.

 


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What it did, as I remember the discussion there

and what I remember in trying to write the order, was to

open up a great deal. There was a feeling of "Let's open

it up" at the last hearing that we held. Now it seems

like, at least with reference to these documents, there's a

feeling of "We don't want to open it up that far."

And is it because they're experts who --

apparently they are experts that are going to testify at

trial. At least -- if Ms. Ponzoli is correct about that,

at least two of these three are experts that are going to

testify at trial. Wouldn't these documents have to be

produced pursuant then to the September order that I

signed?

MS. AHERN: Well, I suppose if their testimony is

going to somehow rely or incorporate this material, Your

Honor.

But, let me back up a little bit. The privilege

was raised; and the distinction is these were confidential

communications from client representatives to litigation

counsel, clearly made with the intent to preserve

confidentiality, to convey information necessary to

retain -- attain legal advice and allow us to defend this

lawsuit and proceed with the matters in this litigation.

In terms of opening up discovery, Your Honor,

during the document production, we brought in all of Nancy

 


87

 

Urban's raw data and we brought a lot more in response to

her --

THE COURT: Right. But, I'm just now looking at

these three reports.

MS. AHERN: Right.

THE COURT: Is it because they are somehow

different?

MS. AHERN: The questioning -- my instructions to

her to answer were limited by the principle not to answer

questions where only by necessity she would be disclosing

what these client representatives told Mr. Jackson. That

was the black-letter law principle that guided and

restrained the objections that were posed at the

deposition. And I think the Government made quite clear

that -- and they knew, "Well, I'm going to ask this

question of Nancy. And the only way she can answer it is

by telling me, 'These client representatives told Mr.

Jackson 'x'.'"

THE COURT: But, if you have an expert, that

expert is going to speak with his lawyer and -- his or her

lawyer and is going to discuss certain things. That

wouldn't protect -- that wouldn't be protected under the

attorney/client privilege.

MS. AHERN: It wouldn't protect his analyses or

the factual knowledge that he has.

 


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I'll note, Your Honor -- I'm sure it's coming,

but the Government has not deposed any of the authors of

these privileged memoranda --

THE COURT: Are these the --

MS. AHERN: -- have not asked -- have not tried

to delve into their own knowledge or opinions.

THE COURT: And those authors -- Black, Grimshaw,

and Swift -- I guess that's who we're talking about --

those authors -- they aren't District employees. They are

not client.

MS. AHERN: They are District employees and

client representatives.

THE COURT: Oh. okay. They are.

MS. AHERN: Yes.

THE COURT: Okay. All right.

All right. Then let's move along here. In fact,

we're going to run out of time obviously. But, what

concerns me a little bit is that we have other parties that

are represented here and that some of you came, I think,

with motions that you thought might be discussed; and there

was one other motion that we were going to deal with with

the District's motion to compel other documents on a

privileged list. It would be, I think -- although I think

that motion was just recently filed.

Can I ask if there are any lawyers here for other

 


89

 

parties that would like to have some time here with the

Court so that we can get at certain other motions that you

might have filed.

MR. GOFF: Robert Goff, Your Honor, for the State

of Florida, Department of Environmental Regulation.

THE COURT: All right. (Inaudible) --

MR. GOFF: There's a motion to -- the United

States' motion to compel production of documents by the

Department --

THE COURT: (Inaudible) --

MR. GOFF: -- at a reasonable time and place.

It's not our motion, but I did come to argue that.

THE COURT: Okay. So, I think that -- Ms.

Ponzoli, can we turn for a few minutes to that motion? Do

you know which one that Mr. Goff --

MS. PONZOLI: Yes, sir. Ms. Nash from the

Department of Justice is going to address that motion.

THE COURT: All right.

MS. PONZOLI: It's the DER production of

documents. And it is very critical that we get that

decided today.

THE COURT: Let me see if I can find my notes on

that. Apparently I didn't number it or read it off in my

earlier list, but I did read that. Did (inaudible) --

MS. NASH: You did, Your Honor.

 


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AN ATTORNEY: No. 5, Your Honor.

THE COURT: Oh, it's No. 5?

MS. NASH: Yes. It was your No. 5.

THE COURT: All 'right. (Inaudible). Okay.

MS. NASH: Your Honor, I am Beverly Nash from the

Department of Justice in Washington on behalf of the United

States.

I think you'll find this fairly simple to deal

with, I hope.

THE COURT: Yes. This is the time and manner.

(Inaudible) dealing with some practical here.

MS. NASH: Yes.

And there were two issues in the motion, Your

Honor. One was an issue of when the other parties could

commence their review of the documents that DER was

producing, and that issue is no longer before you. It's

basically moot since the production has already commenced

and that aspect of the production has been worked out.

THE COURT: Which aspect has been --

MS. NASH: The aspect of when the other parties,

the Water Management District and the Cities of Belle Glade

and Clewiston, would be allowed to come in and start their

review of the --

THE COURT: Oh, this was the week-delay aspect of

the motion?

 


91

 

MS. NASH: Right.

THE COURT: Okay.

MS. NASH: That is no longer before the Court,

though.

The one very important issue that is before Your

Honor is the question of whether the production that did

commence on November 13th should continue on an

alternate-week or a consecutive-week basis.

THE COURT: How is it proceeding now?

MS. NASH: On an alternate-week basis. There is

presently no document being produced this week -- there

were documents produced last week -- although I will tell

Your Honor that we have three microfilmers with the three

microfilm cameras and three contract paralegals in

Tallahassee at the moment. In fact, they were at DER

offices today. And they are prepared to go forward; and we

are prepared to have lawyers present to continue reviewing

documents this week, although this -- under the plan that

DER wishes to have go forward, this would not be a week of

production. But, we are prepared to go forward this week

if Your Honor so orders; and we would on this matter --

THE COURT: Is the situation pretty much as it

was written, that is that you think that it would take way

too long if you did it alternate weeks and DER is saying

that it has a lot of problems with doing it on a weekly

 


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basis? But, is that pretty much (inaudible) the

situation --

MS. NASH: That's pretty much the situation.

They have -- as they stated in their opposition, they

produced what they call about eighty feet of documents the

first week. They did it by counting eighty boxes, although

some of the boxes only had two or three pieces of paper in

them.

It's just -- the problem is that they have not

been as actively involved in this litigation as the Water

Management District has, and they -- I guess they're having

a hard time recognizing that they are a defendant in this

case and there are going to be burdens put upon them and --

THE COURT: Well, they (inaudible) twenty-one

months. I think that was the amount of time. Is that a

point that I should consider -- that it took that long to

request these documents?

MS. NASH: No, Your Honor. And let me explain

why. They do raise that point, but I must point out to

Your Honor that, during the first approximately fifteen or

sixteen months of this litigation, the parties basically

agreed to stay discovery on the -- because there was a

pending motion to dismiss; and Judge Hoeveler ruled on

that, I believe, in December of this past year.

Subsequent to that ruling, the United States

 


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tried fairly diligently to get an agreement on discovery

and on scheduling discovery and was unable to get such an

agreement with the parties, and it was not until -- I

believe it was April 19th of this year, when the scheduling

order was issued -- that we finally had an order saying

discovery is to go forward, and discovery did go forward.

There's nothing in the law or -- that DER cited

in their opposition when it talks about, you know, not

being diligent that indicates, when you have more than one

defendant in a litigation, that you must proceed with

discovery against all of them all at the same time.

After that April 19th scheduling order, we served

a request for production on the Water Management District

and did production there in May and June; and as that was

winding down, we served the notice on DER in July. So,

there's clearly no indication that the United States has

not been diligent in pursuing the discovery in this matter.

THE COURT: When you say eighty boxes -- and that

was -- that was described as eighty linear feet -- was that

in the first week or was that in total?

MS. NASH: That was in the first week, Your

Honor. And there was approximately the same number of

boxes produced and reviewed in the second week.

THE COURT: And how is it being worked out with

the other parties in the case? Is everybody now looking at

 


94

 

the same time, or how is that being --

MS. NASH: At the same time, but basically the

Cities of Belle Glade and Clewiston and the Water

Management District are reviewing the documents that the

United States has reviewed, microfilmed, and cleared, so

that we are done with those documents.

THE COURT: So, you are now -- the Government is

now producing those for other parties, or --

MS. NASH: Well, we're just releasing those

boxes. We are finished with those boxes, and the

District -- the DER is turning those boxes over to the

other Defendants to review.

THE COURT: All right.

MS. NASH: That's -- they're controlling that

aspect of it. We're just telling them when we have

finished review and microfilming and clearing of the boxes

that we have seen.

THE COURT: So, your position, Mr. Nash -- Ms.

Nash, is that you simply need it on a full-time basis

pretty much because of the reasons that you've stated --

expense and the time between now and the discovery cut-off

in the case. And that remains the main argument that you

make. (Inaudible) --

MS. NASH: That's correct, Your Honor. With the

number of documents they've talked about producing on an

 


95

 

alternate-week schedule, we will be still trying to review

documents at the end of June when all discovery is supposed

to be completed. And with regard to the expense question,

Mr. Goff raised in his opposition, "Well, aren't we going

to be sending people home every weekend?"

THE COURT: Right.

MS. NASH: And no, that is not the case.

THE COURT: It would not be?

MS. NASH: That would not be the case. The --

particularly the microfilmers, the contract paralegals, and

some of the attorneys -- not all of the attorneys because

the attorneys will be coming and going as they take and

defend depositions and do obviously the other things. But,

the three microfilmers and the -- about four contract

paralegals and litigation support people that are there

will not be going home on weekends, and attorneys that will

have time to stay will be staying through weekends. So,

the --

THE COURT: How do you --

MS. NASH: It would --

THE COURT: I'm sorry.

MS. NASH: It would not be cost-effective to send

them home when round-trip airfare is 7 to $800 and they can

stay -- the cost to stay there is substantially less than

that.

 


96

 

THE COURT: That much for round-trip airfare?

MS. NASH: To Tallahassee, yes, Your Honor, since

there is not a direct flight from -- well, it is from here,

but not from the Washington area; and the round-trip

airfare is that much.

THE COURT: So, it began on the 13th. That was

the 13th through the 20th, I guess -- or the 13th

through --

MR. NASH: The 13th -- well. the 13th was a

Tuesday, because the 12th was the holiday. So, there was

production on the 13th, 14th, 15th, and 16th, and then

again starting last week, the --

THE COURT: So, (inaudible) week, which was the

holiday week, there was a partial production --

MS. NASH: No. The holiday -- the week of

Thanksgiving there was no production. The microfilmers did

stay the --

THE COURT: (Inaudible). Last week was a full

week. So, there's been two weeks of --

MS. NASH: It was full except for the fact that

there were no documents produced as of -- after Thursday

afternoon and everything that was received up to that point

except -- was reviewed. So, there were no documents to

review on Friday.

THE COURT: Is some of the staff on standby?

 


97

 

They're there, but they're not doing anything waiting to

have a resolution of this motion?

MS. NASH: That's correct, Your Honor

THE COURT: Just for purposes of this week, is

there a problem with this week for people that are there?

If I were to look at this and decide that -- I don't want

to have people standing by --

MR. GOFF: I'd like to -- if I could address this

(inaudible) --

THE COURT: (Inaudible). All right. Ms. Nash,

anything further --

MS. NASH: No As I say, Your Honor, it just --

it appears in what we reviewed that DER just is not taking

this seriously. I mean, the word to the key office, the

Bureau of Service Managament, did not even go to them until

November 9th -- that they were going to have to produce

documents. So -- a memo we uncovered, that I'd be happy to

produce for Your Honor if he wishes to see it, giving them

the request for production and telling them that they'd

better get documents pulled and --

THE COURT: Are we still going to get into a

situation (inaudible) -- disputes over what's going to be

produced, not produced, and so forth? Are you envisioning

that kind of a --

MS. NASH: That may come up later. There's -- I

 


98

 

mean, there's -- we've been trying to work those out; and

you know, so far , I mean, it appears that we're getting

what we've requested. I mean, objections were raised; and

clearly, until we see what's been produced, we're not going

to be able to -- be able to respond on that aspect of it.

THE COURT: All right. Let me hear from the DER

then. Thank you.

MR. GOFF: Your Honor, as I indicated before, I'm

Robert Goff with the State of Florida, the Department of

Environmental Regulation.

The first issue I'd like to address is that, when

this motion was filed, it contained a blatant

misrepresentation to the Court. It said that DER was

willing to commit to production only through the end of

November. That is incorrect on the record. We have always

taken the position that we are willing to produce on

alternate weeks until the production is done.

And Exhibit 4 to the motion to compel is just one

example of the Department's statement of that fact; and

Exhibit 4 to their motion to compel is a letter from me to

B.J. Throencounty (phonetic), United States -- Assistant

United States Attorney. The last -- in the

second-to-the-last paragraph of that memorandum, I state:

"To the extent possible, the Department will

schedule the above production and inspection so

 


99

 

that three or four days of inspection and copying

may be carried out every other week until all

production, inspection, and copying from the

Tallahassee offices is completed."

This position of producing on alternate weeks

until production is completed has consistently been the

position of the Department. It's been consistently

represented to the United States Attorneys as that. And

that characterization that we were only willing to commit

through the end of November is just an outrageous

distortion of the facts.

I would -- as the second point, I'd like to say

that DER has already produced -- during the week of

November 13 to 16, we produced 96 linear feet of documents,

only 75 of which the United States inspected during that

period of time. The number of people they had reading

documents on site varied wildly from ten on one day during

the beginning of that period, and the last day of that

period there were only two or three people that were

reading documents.

The second of the alternate weeks of production

commenced on November 26th to the 30th. At that time we

produced another 64 linear feet, for a total now of 160

linear feet.

On October 17th, prior to that production, the --


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part of the request for production of the United States --

in our discussion with them and in our response and

objections, we offered to make use of our computer

databases for them to identify specific files of which we

indicated would come within their scope of request and be

very voluminous. I'm specifically talking about databases

that have the acronym PATS and LCTS.

On October 17th, pursuant to a discussion with

Assistant United States Attorney Rick Harrison -- I had

conveyed to them through our response and objections

computer search terms that could be used to design a

computer query strategy to attempt to identify responsive

files of the -- from the PATS database. Mr. Harrison gave

me the appropriate search terms that he wanted us to run,

and we did that. And we -- on October 17th I mailed to

them a computer printout using those search terms, and it

contained 4,215 separate files.

Mr. Harrison asked me -- and I had indicated to

him that that database at that time only went back to 1980,

but that it might be possible -- 1985 -- pardon me -- that

it might be possible to get it back further until 1980.

And Mr. Harrison asked me to do that if we could. We

offered to do it if we could do it without an unreasonable

burden. We did it. On November 29th I produced another

printout using those same search terms. That now added an

 


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additional 10,486 files.

Since October 17th, when we -- when I mailed the

first printout of files containing 4,215 identified files

in the computer database priitout, the United States has

done absolutely nothing to attempt to refine that search or

to attempt to go through that list and designate which of

those files they want to look at.

A third point is that the bulk of the documents,

in my estimation, that have not yet produced -- have not

yet been produced from the Department will be composed of

these files from the PATS database, files from permit and

enforcement litigation documents, and files from rule

litigation documents. So, it's essential, I think, that

the United States be -- use the tools that they have

available to identify these, or else the Department is just

going to have to start producing these tens of thousands of

files.

Now, on November 28th, in response to a

discussion with Assistant United States Attorney -- or I

guess the Department of Justice Attorney Gary Guzey

(phonetic) -- I had our experts on the LCTS database print

out a list of documents that identified litigation files

concerning Department rules. And I don't have the number

of those. It was a -- about a one-and-a-half page of

computer printout.

 


102

 

But, the point that I want to make is that the

United States not only has the ability -- and we've made

fully available to them the LCTS database and our computer

search terms and the PATS database and our computer search

terms. They also have available to them Westlaw sources.

The Department final orders from 1985 to the present are

available in Westlaw, a research aid that the United

States, I'm absolutely positive, has full access to.

The United States also has full access to a case

reporter that deals specifically with Florida

administrative law; and I I m referring to the Florida

Administrative Law Reporter, which has pretty substantial

subject matter indexes, rule indexes, statute indexes --

they have cumulative indexes that go back -- well, I forget

how far it goes back, but I think it's in the Seventies.

The United States could use all of these search

terms and search methodologies to narrow their -- to narrow

the -- and identify the -- which of these thousands and

thousands of files that they want to look at. They have

not done so.

So, they have the same research tools that we

would have in order to identify responsive documents; and

if they don't use those research tools, our only recourse

is going to be to produce every one of these files. And

you can see just from the printout of the -- from the PATS

 


103

 

database that there are a very, very large number of them.

The fourth point I 'd like to make is the United

States is solely responsible for the predicament that it

now claims that it is in in terms of a time crunch in order

to finish this discovery from the Department before the

cut-off date. This case was commenced on October 28, 1988.

The United States' request for production to the

Department -- the first request came on July 24, 1990.

There have been no interrogatories. There have been the

deposition of one Department personnel.

The -- on April 14th, 1989, according to the

declaration of John Hitzelberg (phonetic) in the United

States' motion, he visited the Department in Tallahassee,

which is more than fifteen months before they initiated the

request for production. He was -- as his declaration

states, he was given a grand tour and estimated that there

may be more than a million pages of documents that they

would want to have produced from the Department. Fifteen

months went by before they began to initiate a request for

production.

Ms. Nash says that they couldn't go forward

because they were tied up with seeking production from the

Water Management District and that they were worried about

a scheduling of discovery. There have been no court orders

that would have prevented them from issuing a request for

 


104

 

production from the Department. They could have gone

forward. And the fact that they didn't go forward -- they

waited twenty-one months. And now they claim that they are

in this great time crunch -- that they need to place upon

the Department this enormous burden of producing

approximately eighty linear feet of documents every week.

And I represent to the Court that I'm not sure

that we can manage it. We -- in our -- we've had two

weeks -- two alternate weeks of production; and as I

indicated, we've produced an average of eighty feet of

documents in both of those weeks. We are at the -- we have

allocated a space of approximate -- I would guess five

hundred square feet -- for all the parties to inspect

documents.

I've asked the parties that, in the weeks where

we're not producing new documents, that they still have

representatives there to get caught up in the inspection of

the documents that were produced the previous week, because

we're already seeing delays of twenty working days before

these documents get back to the staff of the Department,

and this is holding up the works of -- and the ability of

the Department to perform its function of protecting the

environment.

And to double this up, I'm not sure that -- I

really feel that, first of all -- I really feel that we may

 


105

 

not be able to do it physically.

THE COURT: On these weeks that documents have

been produced -- one was a four-day week. But, the second

of those two weeks, was that a five-day production, or was

that a --

MR. GOFF: Yes, that was a five-day production.

MS. NASH: No, it wasn't, Your Honor, because no

documents were produced after Thursday morning. I had met

with Mr. Goff for an hour on Wednesday afternoon asking him

what was going to be produced the rest of the week, and

there were a few things --

MR. GOFF: Well --

MS. NASH: -- produced on Thursday and nothing

produced on Friday. So --

MR. GOFF: We --

MS. NASH: --(inaudible). And we were finished

with everything that was produced as of Thursday afternoon.

MR. GOFF: I didn't interrupt you, Ms. Nash.

We need to have some flexibility in this, Your

Honor . We don't know how many people from the United

States are going to be there on any given day. And by my

count, on November 13th there were nine United States'

personnel reading documents. On November 14th there were

ten. On November 16th there were three. On November 26th

there were four. On November 26th there were seven. And

 


106

 

November 28th -- November 26th there were six -- November

27th there were six, and the 28th there we're seven. And

after that, we ran out of additional documents for -- new

documents for the United States to look at. That is true.

The -- but, when we go to the staff and try to

schedule a production of documents, in order to keep to a

minimum the time in which these documents are out of the

hands of our staff , we have to use some judgement in

gathering up the documents and making them available to the

United States. When the United States has ten people there

one day and three people another, that doesn't help us to

plan our production.

THE COURT: Okay.

MR. GOFF: Just a couple more points I'd like to

make, Your Honor.

In my memorandum in opposition, I discuss a

number of cases that indicate that -- that stand for the

proposition that when a -- the party seeking discussion

must show diligence. I think the most -- the case most

appropriate for this court is Aviation Specialties, which

came out of this court -- Judge Maritans (phonetic) in

19 -- which went up to the Fifth Circuit Court of Appeal in

1968. In that case the plaintiff waited six months to

commence discovery, and the -- Judge Maritans denied a

continuance for further discovery and entered summary

 


107

 

judgement, and the Court of Appeals found that there was no

abuse of discretion in that.

The same principle has been adopted by the

District of Columbia Circuit, the Third Circuit, the First

Circuit -- in cases that I've cited to you in memoranda.

And as I was reviewing them at lunch today, I noticed the

Ninth Circuit is cited in one of those cases as also

following that law.

The party seeking discovery must show diligence.

Twenty-one months is not diligence, not by any stretch of

the imagination. And what the United States is trying to

do now is dig itself out of the hole it got itself in from

lack of diligence by imposing upon the Department an extra

and unreasonable burden to produce eighty feet of

documents -- more than eighty feet, I guess, because they

can bring in God-knows-how-many people from Washington or

Miami and go through eighty feet of documents in four or

five days and then complain about the fact that they don't

have any more to look at that week.

THE COURT: All right. Mr. Goff, I'm going to

cut you off here, but I do want to ask you one question.

That is: If you had your choice -- and I want to reflect

on this just a bit more, and I will do an order on this

tomorrow -- but, if you had your choice, that being for the

DER, would you prefer a three-day week every week or a

 


108

 

five-day week -- a full five-day week every other week?

MR. GOFF: A five-day week every other week, Your

Honor.

THE COURT: That would be your choice. Okay.

Now, my order is probably going to pick one or

the other of those. And I want to read this. But, the

other thing that it seems could be done -- and I'll make a

provision for it in the order -- but, that there's at least

some advance planning -- not just see who shows up, but

that there be some advance planning at least the week

before as to how many people are going to be there and what

the expectation is for how much work there should be.

MR. GOFF: Right.

THE COURT: And it seems unfortunate to me to

have people think that there's going to be enough there for

the whole week and then to have this not be the case. And

so --

MR. GOFF: Well, Your Honor, I would -- actually

I don't even think this ought to be before the Court. This

ought to be something we can work out. And --

THE COURT: Well, it is, and I'm going to -- I'm

going to do an order on it.

MR. GOFF: And I would urge you to allow as much

flexibility as you can, because we can't -- in the

Department we can't forecast just how many feet we're going

 


109

 

to get from a particular subset of an office.

THE COURT: Well, I understand.

MR. GOFF: When we notify those people that

you're scheduled to produce in this particular week, they

may have more or less documents than we anticipated.

THE COURT: Well, it seems to me that there

should be some ability to have some flexibility

(inaudible), and that's why I want to think on this a bit

more. But -- and that that flexibility should be on the

part of the DER, rather than on the Government. And so, I

hope to incorporate that in my order as well. And exactly

what that will be remains to be seen. But, I do understand

the position of the Department in that respect, Mr. Goff.

All right.

MR. GOFF: Your Honor, there's one other aspect

that's sort of collateral to this. And the United States

has taken the position that they want to depose -- or

conduct five depositions a week.

We have -- the Department has designated a number

of expert witnesses, twenty-six of which remain -- that

haven't been deposed. And there are, by my count,

twenty-six weeks left in -- before the close of

depositions. And the Department is very much stretched for

its legal resources.

And we would like -- and my understanding is that

 


110

 

the United States Attorney may be amenable to this, but we

would like an understanding that no more than one

Department represe ntative can be designated -- can be

deposed in any particular week, because, frankly, the

Department just can't allocate that many more legal

resources to this case without taking them off enforcement

cases -- without taking them off permit litigation cases,

in which case we would default and the applicant would get

a permit if we were contesting it. So --

THE COURT: Well, I think I --

MR. GOFF: -- I think a rule of reason can be

applied to this in that only under extremely extraordinary

conditions should the United States be allowed to -- or

anybody else be allowed to set a deposition for more than

one Department employee in a given week.

THE COURT: Well, I appreciate the concern, Mr.

Goff, (inaudible), and -- but, at this point I'm going to

still have to rely on the schedulings of the attorneys and

the good faith that I think has been shown in the past and

the cooperation and so forth. And I can certainly

appreciate that, to the Department and to other defendants

in this case and probably to the Government as well, this

case has been a nightmare from a scheduling standpoint --

who's going to be there to get it all done.

So -- but, at this point I 'm going to only deal

 


111

 

with what I have in front of me in writing and hope that we

can work out all this discovery in the meantime. All

right.

MR. GOFF: Thank you.

THE COURT: Thank you, Mr. Goff.

All right. I'm. going to do an order on this.

I'll probably draft it tonight and have this order out

tomorrow.

As far as these particular depositions go, Ms.

Nash -- or this particular discovery is concerned, it would

be my inclination, at least for this week, to not have any

further -- was it last week that the -- yes, it was -- to

not have any further production by the Department this

week. And so, if those persons are waiting on a standby

basis, I would say that, whatever the ground rules are

going to be for that production from the Department, it

would be starting next week as far as a court order is

concerned.

And the only thing I 'd like to ask the attorneys

to do -- it is -- I'm sure it's apparent. This Court is

the least aware of anyone in this room as to what's going

on in this case, and that isn't because this Court doesn't

read what is submitted to me, and it isn't because of any

lack of diligence. I hope that's also perceived. But,

hopefully I -- and it's not the law; it's more the facts.

 


112

 

And that's the reason that I like to have attorneys address

the Court as to what the facts of the matter are It's

certainly my hope that I understand enough of it at the end

of these to make intelligent decisions on these and to

assist the attorneys in completing the discovery in this

case and certainly within the rules and fair to all sides.

It continues to be my impression -- and it's

always reinforced in having these hearings -- that, while

this is a hard-fought case, it certainly seems that there

is -- that it has not -- I haven't seen it degenerate to

the personal level. And I can appreciate -- I do

appreciate that. Unfortunately we don't always see that in

Federal court. And I hope that that continues.

Hard-fought usually means sometimes hard feelings. And I

appreciate that I'm not looking at motions for -- and

I'll -- well, I'm not looking at motions for sanctions and

I'm not looking at allegations of misconduct on the part of

attorneys as I read through this, and I appreciate that.

The one request that I'd like to make --and

again, it's to assist the attorneys in the case -- and that

is where -- and again, I 'II preface it by saying it's not

always so easy for me to know what's going on in the case,

primarily because of our filing system here. I appreciate

receiving copies of things. Most of the time I receive two

and three copies, which I'm always glad to see, because

 


113

 

then I can throw away the second copies and it's not quite

as much as what it first appeared.

But, I would like to have -- particularly from

those parties that feel like something has to be addressed

right away -- and of course, allowing for time for all

responses and replies to be filed -- but, I would like --

or I would invite status reports from attorneys or requests

for rulings from attorneys -- you can call it anything you

want -- but, I want to know that something is ready for a

court's decision.

And if there is a need for -- I continue to

invite telephone conferences, and I have the same ground

rules about that; and if it's something that any one

attorney is not comfortable with and it needn't be -- or it

shouldn't be by telephone conference -- but, if it's

something that -- I don't want it to sit in some file

somewhere -- or some docketing or filing -- or clerk's

office somewhere where I dor't know about it. So, if it's

something that has to be done, particularly in light of the

massive amount of work that is involved in this case and

the need sometimes to have these things decided by a court

order , I want to know about it as quickly as you can tell

me about it.

And so, you can call it anything you want.

Probably what we don't like as judges is to see whatever --

 


114

 

sometimes the style is over sixty days. The -- those have

to go onto reports that we submit to Washington, and we

hate to do those. But, if you can do it in some way that

lets us know about -- me and I speak for Judge Hoeveler

here -- something that has to be decided.

Of course -- well, my only comment about the

summary judgement -- and that is what I read in the

newspaper -- and from the newspaper, it sounded like all of

this was going to be over very quickly. So -- but, because

it is not a motion that's in front of me, I'm not going to

have to -- have to address myself to that.

I did see Mr. Rodgers here. I don't mean to

indicate -- or I didn't mean to suggest before, if I did,

that I didn't see him here when he is here.

And -- anything else that we should discuss

today'? All right. Then I appreciate that, and we will

(inaudible).

THE CLERK: All rise.

(Whereupon the hearing was concluded.)

 

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I HEREBY CERTIFY that , to the best of my knowledge, the
foregoing pages, numbered 1 through and including 114, are
a true transcription of the electronic recording made on
tape 90D-226 and 90D-227 in the above-stated matter.

 

__________________        _________________
Transcriber                            Date

 

 

 

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