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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 --
7
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
9
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
15
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
19
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
23
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
24
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
25
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
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 |