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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
81
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
83
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
84
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?
85
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.
86
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.
88
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
92
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
93
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.
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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
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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.
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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
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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
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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
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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.)
- - -
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
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