DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

SUGAR CANE GROWERS COOPERATIVE )

3 OF FLORIDA, ROTH FARMS, INC., )

and WEDGEWORTH FARMS, INC., )

4 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., )

5 and UNITED STATES SUGAR )

CORPORATION, )

6 -and- )

FLORIDA FRUIT AND VEGETABLE )

7 ASSOCIATION, LEWIS POPE FARMS, )

W. E. SCHLECHTER & SONS, )

8 INC., and HUNDLEY FARMS, INC., )

Petitioners, )

9 vs. ) DOAH CASE NO.:

SOUTH FLORIDA WATER ) 92-3038

10 MANAGEMENT DISTRICT, ) 92-3039

Respondent, ) 92-3040

11 and ) (Consolidated)

MICCOSUKEE TRIBE OF INDIANS, )

12 THE UNITED STATES OF AMERICA, )

FLORIDA DEPARTMENT OF )

13 ENVIRONMENTAL REGULATION, )

and FLORIDA WILDLIFE ASSOCIATION,)

14 Intervenors. )

)

DEPOSITION OF: JOHN A. DAVIS, Ph.D.

TAKEN AT

17 INSTANCE OF: INTERVENOR FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

DATE: MARCH 15, 1994

TIME: COMMENCED: 9:18 A.M.

20 CONCLUDED: 5:05 P.M.

21 LOCATION: 238-B TWIN TOWERS OFFICE BLDG.

2600 BLAIR STONE ROAD

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: LAURIE L. GILBERT

REGISTERED PROFESSIONAL REPORTER

24 NOTARY PUBLIC

25 VOLUME I

PAGES 1-125

1 APPEARANCES:

2 Representing Petitioners, Florida Sugar

Cane League, Inc., and United States

3 Sugar Corporation:

4 WILLIAM L. HYDE, ESQUIRE

Earl, Blank, Kavanaugh & Stotts, P.A.

5 Suite 350

215 South Monroe Street

6 Tallahassee, Florida 32301

(904) 681-1900

Representing Intervenor Miccosukee Tribe

8 of Indians:

9 TRUMAN E. DUNCAN

Water Resources Director

10 Miccosukee Tribe of Indians

Post Office Box 440021

11 Tamiami Station

Miami, Florida 33144

12 (305) 223-8380

13 Representing Intervenor

The United States of America:

THOMAS A. WATTS FitzGERALD, ESQUIRE

15 Assistant United States Attorney

Southern District of Florida

16 99 Northeast Fourth Street

Miami, Florida 33132

17 (305) 536-5927

18 Representing Intervenor Florida

Department of Environmental Protection:

LEE M. KILLINGER, ESQUIRE

20 Assistant General Counsel

Department of Environmental Protection

21 640 Twin Towers Office Building

2600 Blair Stone Road

22 Tallahassee, Florida 32399-2400

(904) 488-9730

1 ALSO PRESENT:

2 Frank Nearhoos

Douglas Gilbert

3 Russell Frydenborg

Michael H. Story

4 Maurice O. Nyquist, Ph.D.

5 * * * * *

6 INDEX

(VOLUME I)

ITEM PAGE

DEPOSITION COMMENCED . . . . . . . . . . . . 4

CERTIFICATE OF REPORTER. . . . . . . . . . . 125

* * * * *

11 INTERVENOR DEPARTMENT OF

ENVIRONMENTAL PROTECTION'S EXHIBITS

NUMBER DESCRIPTION PAGE

1 Corrected Re-Notice of Deposition

14 Duces Tecum. . . . . . . . . . . . 8

15 2 Professional Resume of

John A. Davis, Ph.D. . . . . . . . 59

18 * * * * *

1 STIPULATIONS

2 The following deposition of JOHN A. DAVIS,

3 Ph.D., was taken on oral examination and for such

4 uses and purposes as may be permitted by the

5 Florida Rules of Civil Procedure and other

6 applicable law. The reading and signing of the

7 deposition by the witness is waived.

8 * * * * *

9 Whereupon,

10 JOHN A. DAVIS, Ph.D.

11 was called to testify and, having been first duly

12 sworn, was examined and testified as follows:

13 DIRECT EXAMINATION

14 BY MR. KILLINGER:

15 Q I'm an attorney with DEP, my name is

16 Lee Killinger.

17 Could you state your name for the record.

18 A John A. Davis.

19 Q Okay. Could you state your address?

20 A P.O. Box 5489; Gainesville, Florida

21 32602, dash, 5489.

22 Q Have you got a street address in

23 Gainesville?

24 A Highway 441, South; Alachua.

25 Q Okay. Have you been deposed before?

1 A Yes.

2 Q Okay. Are you familiar with what goes on

3 in a depo?

4 A I think so.

5 Q I -- I'd like to ask that if I ask any

6 questions which you don't understand, that you ask

7 me to clarify them, and I'll do the best I can to

8 do so.

9 If you don't -- can't hear me or you need

10 to think about it, that's fine, just go ahead and

11 take it. If you need to take a break at any time,

12 that's fine, just ask and we'll do that.

13 Have you -- have you reviewed any

14 documents in order to prepare for this depo?

15 A Yes.

16 Q What documents have you reviewed?

17 A The documents that have been produced.

18 Q So you've reviewed all the documents that

19 you produced responsive to the depo notice; is that

20 what you're saying?

21 A At one time or another, yes.

22 Q Okay. Every -- you reviewed any documents

23 immediately prior to the depo, in the past week or

24 two.

25 A Yes.

1 Q What documents did you review?

2 A Basically the ones that were sent to you.

3 Q Okay. When did you review them?

4 A Within the last couple weeks.

5 Q Where did you review them?

6 A At my office.

7 Q Is that in Gainesville?

8 A Right.

9 Q Okay. Did you review them with anybody,

10 or on your own?

11 A I mostly reviewed them on my own.

12 Q Okay. You say mostly. What would be

13 the -- the remainder of the time?

14 A I had my secretary collect some of the

15 documents, copy some of them; I had various members

16 of my staff have to perform a calculation; or do

17 something or another related to, you know, one of

18 the documents.

19 Q Okay. Can you give me any names of people

20 who were involved in the document review?

21 A Paula Hedges, secretary.

22 Q Anyone else?

23 A Sherry Hoskins as a -- I have a technician

24 that does some spreadsheet stuff for us. And deal

25 with computer files.

1 Q Weiping Li is a project manager, senior

2 scientist that's also in charge of our -- of data

3 management section.

4 Ron Seymour is our graphics person. He

5 prepared the figures that were turned over.

6 Q Anybody else?

7 A I don't really recall anyone else working

8 on the documents in the last couple weeks.

9 Obviously over the last four years, there's been a

10 lot of people --

11 Q Sure, I understand.

12 A -- look at the documents and that sort of

13 thing.

14 Q Did you meet with anybody to prepare for

15 the depo?

16 A We had a meeting at my office with two of

17 the attorneys a couple of weeks ago. We met one

18 day in -- in Miami at

19 Earl, Blank, Kavanaugh & Stotts.

20 MR. KILLINGER: Let me start off I guess

21 with this which we'll mark. I guess I'll just

22 send copies of that down there.

23 Copy of the depo notice.

24 You can mark that as the first exhibit.

1 (WHEREUPON, A BRIEF OFF-THE-RECORD

2 DISCUSSION WAS HELD.)

3 (WHEREUPON, EXHIBIT 1 WAS DULY MARKED FOR

4 IDENTIFICATION.)

5 Q I'd like you to look at what's been marked

6 as exhibit 1, and ask you if you recognize it.

7 A Yes.

8 Q Okay. You've seen it before then?

9 A It appears to be the duces tecum that was

10 sent to us by the attorneys.

11 Q When did you first see it?

12 A I honestly don't know. Roughly two weeks

13 ago I guess.

14 Q Okay. How'd you obtain it?

15 A It was on my desk when I got back.

16 Q Do you know who sent it to you?

17 A Someone from the Miami office.

18 Q Have you produced the knowledge that -- to

19 your knowledge, the documents that I've requested

20 in the duces tecum notice?

21 Well, I guess we can just go through it.

22 Maybe that'll be easier.

23 If you'll turn to page 3. And look at

24 item number 1.

25 A (Witness complying.)

1 Q To your knowledge, have you produced a

2 copy of your CV?

3 A We produced a set of, you know, documents,

4 you know, to the attorneys who then went through

5 those documents and, you know, sent, you know,

6 documents to you. Item 1 was in that.

7 Q Okay.

8 A Whether they sent it to you or not, I

9 don't know.

10 Q Okay. We have a CV, I'll go over it

11 specifically in a minute to see.

12 Item number 2 is a list of all technical,

13 professional, or scientific publications, reports,

14 articles, monographs, theses, or similar documents,

15 et cetera.

16 Have you produced documents responsive to

17 that request?

18 A Same answer.

19 Q Same answer, being that you produced

20 documents --

21 A To the attorneys.

22 Q -- to your attorneys, and the attorneys

23 produced them to us.

24 MR. HYDE: Lee, just to help you focus

25 your questions, we did review the documents for

1 attorney work product and for attorney-client

2 privilege documents. And we are in the process

3 of preparing a list of those privileged

4 documents.

5 Those are the only documents that have

6 been excerpted from the production of documents

7 to us by John Davis and his firm.

8 MR. KILLINGER: Okay.

9 Q Dr. Davis, do you know what documents were

10 withheld by your attorneys --

11 A No.

12 Q -- based on some privilege grounds?

13 A No.

14 Q You do not.

15 A No.

16 Q Well, I guess I'll go through these

17 quickly then anyway.

18 Have you produced documents responsive to

19 number 2? Have you produced a list of all of your

20 publications that you wrote or cowrote?

21 A Actually, I don't think we produced a

22 list. I think we produced, you know, whatever

23 documents there were.

24 Q Okay. Well then, that leads me to

25 number 3.

1 Do you think that you responded to

2 number 3 as opposed to number 2?

3 A Yes.

4 Q Okay. Did you respond and produce all

5 documents that are identified in number 4?

6 A Except for the documents that may have

7 been related to the 298 work. If you consider that

8 to be part of the --

9 Q Okay. Can you --

10 A -- Florida Everglades.

11 Q -- sort of identify for me what you

12 consider to be the 298 work, so we can sort of get

13 the parameters of that?

14 A It would be any work related to the

15 mixings on the portion of the work related to the

16 permitting of the 298 districts, Lake Okeechobee.

17 Q Which 298 districts?

18 A East Shore, South Shore, East Beach, and

19 South Florida Conservancy.

20 Q Are those the only 298s you're referring

21 to when you're talking about the 298s?

22 A (Nodding head.)

23 Q Okay. And for the record, why did you not

24 produce those documents?

25 A Because that particular case is involved

1 in other litigation, and I was instructed by

2 counsel for that litigation not to produce those as

3 part of this proceeding since they were produced in

4 the other proceedings.

5 Q So counsel for the 298 litigation

6 instructed you not to produce those in this

7 litigation. Is that correct?

8 A Right.

9 Q What --

10 MR. FitzGERALD: Lee, if I may for a

11 moment, I would just point out for counsel's

12 benefit, because it's likely to be a couple of

13 days before I'll ask questions, that our

14 Cross-Notice would require the same documents.

15 And that those documents have never been

16 produced to the United States in connection

17 with any other administrative litigation that

18 may be ongoing.

19 And I'll put you on notice now, I expect

20 those to be in my hands by the time my

21 questioning period arises. Those are clearly

22 falling within the geographical bounds of the

23 EPA, EAA, and are relevant to the case

24 regarding the water management and the Florida

25 water quality. They are within the scope of

1 our Notice.

2 MR. HYDE: Tom, let me just respond

3 briefly by noting that as Dr. Davis just said,

4 counsel in that litigation, Parker, Thomson,

5 instructed him not to produce them. And that

6 is for a different client, I have no control

7 over that.

8 And if you want to get them produced for

9 your benefit, I would suggest you contact

10 Mr. Thomson and see if he will release them.

11 If he does, we won't have any trouble with

12 producing them.

13 I furthermore don't think there's any

14 particular problem here in that these deal

15 primarily with documents regarding a 298

16 proceeding that doesn't even directly impact on

17 the scope of this proceeding.

18 But I think that you're -- I think you

19 basically need to talk to Mr. Thomson about

20 producing those.

21 MR. FitzGERALD: It is the witness's

22 obligation to produce, and if somebody else, a

23 stranger to this action, thinks they don't have

24 to, then they need to move in and come in with

25 a protective order motion to the

1 Hearing Officer.

2 It's not my obligation to chase down

3 third party counsel when this witness is in

4 possession of the documents.

5 I don't hear the raising of any privilege

6 or any other matter that would preclude the

7 discovery into that and the production of

8 that. I understand your position.

9 But if he is not going to produce

10 documents in his possession, they're not going

11 to take appropriate steps to have that

12 non-production sanctioned by the

13 Hearing Officer, we're going to get into it

14 about whether this witness is going to stay on

15 the witness list or not.

16 MR. HYDE: I -- I hear what you're

17 saying. I will communicate your request to

18 Mr. Thomson, but I can't guarantee anything

19 regarding these documents.

20 I don't think that threats about whether

21 this witness will remain on the -- on the

22 witness list is anything useful or probative

23 to --

24 MR. FitzGERALD: You're right. It's

25 certainly not probative.

1 Q Just to -- to go on, for the record,

2 the -- the counsel that you're referring to, is

3 that the Thomson, Muraro law firm?

4 A Right.

5 Q Was there another law firm involved, or

6 just the Thompson, Muraro firm?

7 A Yes, the one Terry Lewis was with.

8 Q Is that Mr. Vickers?

9 A Right.

10 Q Okay. So they both had the same

11 instruction?

12 A (Nodding head.)

13 Q Okay.

14 MR. KILLINGER: Just for the record, I

15 want to try to point out that I recognize there

16 is a whole separate legal proceeding with the

17 298s that we're involved in in other

18 dimensions, and there are other discussions

19 going on about that, and I don't want what I'm

20 doing here to be misconstrued by anybody as

21 trying to do collateral discovery for that

22 case.

23 That's not my intention, and that's not

24 what I'm -- what I'm trying to get at. I

25 recognize Mr. FitzGerald has got an entirely

1 different set of concerns, which we'll have to

2 address.

3 But I just wanted to get the parameters of

4 what you produced is mainly why I asked the

5 question. So --

6 Q Okay. Let's go on to number 5.

7 Is it your opinion that you've produced,

8 at least to your attorneys, all the documents

9 responsive to item number 5?

10 A Yes.

11 Q Okay. I obviously have the same question

12 for number 6. Have you produced all the documents

13 that you have relating to the items in number 6?

14 Let's just go through it. 6(a) I guess we

15 could start with.

16 A Yes.

17 Q Okay.

18 A I was reading the whole list.

19 Q Yeah, that's fine.

20 6(b). Or is it easier to answer for the

21 entire question, all of 6.

22 A Let me finish the rest of the list.

23 Q Okay. That's fine.

24 A Yes.

25 Q Okay. I guess with regard to item (j) --

1 MR. KILLINGER: Bill, I believe that's --

2 that's a section about mercury --

3 MR. HYDE: Yes.

4 MR. KILLINGER: -- and I believe you

5 informed us yesterday that you have some

6 documents that we --

7 MR. HYDE: If you --

8 MR. KILLINGER: -- can have.

9 MR. HYDE: -- want them. Yes.

10 MR. KILLINGER: And I think for the

11 record, we'd like to state that we would.

12 MR. HYDE: Okay.

13 MR. KILLINGER: We would like them.

14 I think the U.S. has the same opinion.

15 Is that right, Tom?

16 MR. FitzGERALD: That's correct.

17 MR. KILLINGER: I don't want to speak for

18 you.

19 MR. FitzGERALD: I also understand there

20 was some correspondence identifying different

21 documents and materials that would be

22 potentially relied upon by the witness? Maybe

23 some of the standard documents in the case.

24 Like third and fourth supplements to the

25 original list which I was never --

1 MR. HYDE: They were provided to -- to

2 Lee, I know that. They were very brief, like

3 one or two documents listed on the --

4 MR. FitzGERALD: Counsel, that's

5 wonderful. But if I provided things to the

6 Fruit and Vegetable Association, you'd be

7 howling if I didn't include you.

8 We're on the service list, you provide

9 them to us, too. This is the same problem we

10 had last week with receipt of the photographs

11 of the various entry programs and the data

12 discs.

13 You did not notify the United States,

14 which is the cross-deposer here, of the

15 existence of that material, the fact it was

16 going to be produced. I found out by

17 happenstance because Mr. Killinger mentioned it

18 off --

19 MR. HYDE: Well, I presume that you guys

20 communicated. I'm sorry that I did so. The

21 documents are available, they're very brief,

22 one or two pages --

23 MR. FitzGERALD: I just need --

24 MR. HYDE: -- I don't think there's any

25 prejudice here.

1 MR. FitzGERALD: I just need them.

2 MR. HYDE: Besides, it was my

3 understanding that Mr. Killinger would be the

4 lead deposing attorney for this matter anyway,

5 and it was important to get the documents to

6 him first.

7 Q Okay. Let's move on to item number 7.

8 Is it your opinion that you've produced to

9 your attorneys all documents related to item 7?

10 A I don't know quite frankly that we

11 calculated means for all the raw data and provided

12 them as a separate item. It's my understanding

13 that we produced all the raw data.

14 Q Do you know whether means have been

15 calculated?

16 A I mean, calculate, you know, a mean all

17 the time.

18 Q Okay.

19 A For, you know, a particular reason or

20 whatever and look at it, and --

21 Q Well, I think -- my -- my point is: The

22 question asks for published data, mean data, and

23 raw data. It doesn't ask just for raw data. So if

24 you've done anything with the data to analyze it,

25 the question is really trying to get at that.

1 What I'm trying to find out is: Did you

2 produce the raw data only, or did you produce the

3 raw data together with any analysis of it that

4 you've done, whether it be means or any other

5 calculations.

6 A We did, you know, not produce, you know,

7 every, you know, calculation that's been done on

8 raw data over the last, you know, four or

9 five years. I don't even know that I have that,

10 you know. It's not unusual at all to, you know,

11 take a particular group of data, you know, plot

12 something, calculate something, look at it, and

13 say, oh, this doesn't, you know, really -- not

14 meaningful, whatever. And -- and, you know,

15 discard that.

16 Q Okay. I think I understand what you're

17 saying. But I'm just trying to be absolutely clear

18 about it.

19 What you're telling me is that you do --

20 often do data analysis that doesn't get retained in

21 hard copy form?

22 A Yes.

23 Q Okay. And doesn't get retained because

24 it's deemed, what, irrelevant or incorrect, or --

25 what -- what are your criteria for not retaining?

1 A If it were something I thought that I

2 would want to use in the future, I would probably

3 retain a copy of it. If it was something other --

4 that was responsive to a request that somebody,

5 you know, made and, you know, we calculated a value

6 and, you know, provided that to someone, and it

7 didn't have any particular, you know, long-term

8 interest to me, then it would have been, you know,

9 discarded or whatever.

10 Q Okay. Let's go on to number 8.

11 In your opinion, have you produced all the

12 documents to your attorney that are responsive to

13 number 8?

14 A Yes.

15 Q Okay.

16 A Well, yes, I think to the attorneys, yes.

17 Q Okay. You had a qualification there. Is

18 there -- I mean, you -- feel free to qualify if you

19 need to. I don't want you to --

20 A Basically the process that we went through

21 was --

22 Q You mean in the production?

23 A Right.

24 Q Okay.

25 A -- the attorneys had someone come up, look

1 through our files, and copy, you know, everything

2 that, you know, they thought was, you know,

3 prudent. And they, you know, took it and then

4 I guess developed their privilege list or

5 whatever.

6 With the exception of the 298 district

7 material. We, you know, allowed them to, you know,

8 look at all of the stuff.

9 Q So is it correct to state then that the

10 attorneys made the cut about what was responsive

11 and what was not, having looked through your

12 documents?

13 A Yes.

14 Q Okay. Can you give me the names of the

15 attorneys that did that?

16 A This was done in stages. And it was done

17 once when the deposition was set before the

18 hearing -- or the stay went into effect.

19 Q Uh-hum. Uh-hum.

20 A And I believe there was a paralegal that

21 came up, Jody Foster.

22 MR. HYDE: Powell.

23 THE WITNESS: Powell?

24 A Okay. Jody Powell.

25 And Mark Kobelinski came up. I think --

1 Q Well, okay. Let me just -- maybe it's the

2 way I'm phrasing my questions.

3 You made available all the documents

4 responsive to number 9 to your attorneys.

5 A Well, that's -- that's true of everything.

6 Q Okay.

7 A I wasn't saying that just in response to

8 9.

9 Q No. I realize that. I'm --

10 A I gave them all of the documents --

11 Q That's what I'm trying to figure out.

12 A -- in the process.

13 Q Okay. As far as you know, were all the

14 documents responsive to item 10 that fall within

15 that description made available in this same way?

16 A We did not provide -- well, on the

17 computer disc and stuff --

18 Q Uh-hum.

19 A -- what we did is we prepared a --

20 you know, list of all of the computer files and

21 discs and that sort of thing, and provided that to

22 the attorneys.

23 Q Okay.

24 A Then we discussed that data to, you know,

25 a certain extent and provided copies of all the

1 files that we expected to allow. With the

2 exception that we did not provide, you know, copies

3 of files which we had received from, you know,

4 other people, you know, type of production, that

5 sort of thing.

6 Q Right.

7 A For example, I didn't provide a list of

8 all Bill Walker's files. Okay.

9 MR. KILLINGER: I think for the record, I

10 can say I appreciate that.

11 A We also have, you know, graphics files,

12 and we, you know, went through and -- and talked

13 about those, and we provided you either a disc copy

14 or hard copy of -- of those files that we,

15 you know, intended to use, kind of a final product,

16 that sort of thing. And there's just --

17 Q Okay. But as far as you know -- I mean,

18 that -- so that's a gloss on item 10, correct?

19 A Yes.

20 Q Okay. What about item 11, have you made

21 all of that information available to your

22 attorneys?

23 A Yes.

24 Q Okay.

25 A Well, yes. Yes. Again, with the -- the

1 caveat about the 298 district applies to all of

2 these --

3 Q Okay. That's fine. I just --

4 A -- as a global.

5 Q I understand.

6 What about item 12, you made all those

7 items available?

8 A Yes.

9 Q Have you produced all the documents

10 responsive to request number 13?

11 A Yes.

12 MR. HYDE: Just like to note for the

13 record, Lee, that when you asked whether he's

14 produced all anticipated documents for -- or

15 anticipated expert testimony relating to

16 testimony of others, that requires a good bit

17 of guesswork on his part.

18 But I think that he's been responsive to

19 your question.

20 MR. KILLINGER: Okay. That's fine.

21 MR. HYDE: How can you possibly anticipate

22 what's in the mind of --

23 MR. KILLINGER: No --

24 MR. HYDE: -- other people --

25 MR. KILLINGER: -- I understand that.

1 MR. HYDE: -- utilized.

2 MR. KILLINGER: I guess for clarification,

3 I can say that I was -- we're seeking documents

4 that are either Dr. Davis's, or others'

5 documents that he's going to rely on to

6 organize his anticipated testimony.

7 MR. FitzGERALD: It's probably worth

8 noting for the record as well, that that

9 phraseology is in every one of the

10 Sugar Cane League's depo notes as well, and we

11 all understand the limitation hearing.

12 But I think that also goes to any

13 assistance, documentation, et cetera, the

14 witness may have implied -- or supplied rather,

15 to prepare other witnesses for the parties'

16 petitioners for their depositions or

17 testimony. And those would be required as

18 responsive. I think that is included in the

19 positions taken by Mr. Earl and Mr. Green at

20 various of the depositions.

21 MR. HYDE: I think those have been

22 produced. I just don't think that you can

23 possibly expect that everybody -- all the

24 multitude of witnesses, what someone might

25 possibly rely on, that John Davis --

1 MR. FitzGERALD: It's just a reflection of

2 our confidence in Dr. Davis's insight.

3 Q Generally, number 14, have you made all

4 those documents available for production?

5 A Yes.

6 Q How about documents responsive to item 15?

7 A Yes. And when I'm saying yes here, I'm

8 saying I made them available to --

9 Q I understand.

10 A -- you know, Earl, Blank, Kavanaugh &

11 Stotts.

12 Q I understand.

13 Okay. You've made all the documents

14 available responsive to item 16?

15 A Yes. With the same I guess discussion we

16 had relative to number 7. I think every

17 statistical calculation and this sort of thing,

18 you know, was not provided. But the things that --

19 Q Okay. Well, did you -- did you provide,

20 with regard to all of these items that have been

21 requested, those calculations which have been

22 retained, which were retained?

23 A I think that's probably true, yes.

24 Q So the ones you haven't provided are the

25 ones that you did and then threw away.

1 A Either that, or got lost. I mean, I don't

2 know of any documents that were retained.

3 Q Okay. Okay. I'll come back to that in a

4 minute.

5 Where did we leave off, was that 16?

6 MR. HYDE: Yes.

7 Q Have you produced all the documents, made

8 them available, for number 17?

9 A Yes.

10 Q Have you made available all the documents

11 responsive to number 18?

12 A Yes.

13 Q Have you made the documents available and

14 responsive to item 19?

15 A Yes.

16 Q How about item 20?

17 A Yes.

18 Q You produced -- have you made all the

19 documents available regarding number 21?

20 A Yes.

21 Q How about number 22?

22 A Yes.

23 Q Have you produced all the documents

24 responsive to item 23?

25 A Yes.

1 Q Have you produced all the documents

2 related to item number 8?

3 A Eight?

4 MR. HYDE: Eight?

5 Q Page 8, item 24. I'm sorry.

6 A Yes.

7 Q Have you produced all the items responsive

8 to number 25?

9 A Yes.

10 Q Have you produced all documents that you

11 have relating to item 26?

12 A Yes.

13 Q How about number 27?

14 A Yes.

15 Q Have you produced any documents related to

16 number 28?

17 A Yes.

18 Q Have you made available all the documents

19 regarding number 29?

20 A Yes.

21 Q What about number 30?

22 A Yes.

23 Q Okay. But you do -- do you know --

24 A Well, let me go back for a second.

25 Q Okay. Sure.

1 A I think on -- on 30, I may need to

2 readdress that one. The law firm actually has all

3 the invoices we sent them. I do not believe they

4 have invoices that we may have sent to other

5 parties.

6 Q Okay. All right. I'll come back to that

7 in a few minutes.

8 I'd like to go back to the questions that

9 we discussed about whether you've produced all of

10 the calculations or analysis that you've done over

11 the course of the time on these data that you've

12 got.

13 You said that some of the data -- some of

14 the calculations might not have been retained

15 because they were given to somebody, or weren't

16 useful to what you were working on.

17 A (Nodding head.)

18 Q If data analysis that you did didn't

19 meet -- didn't support the theory of a client in

20 litigation, did you discard it?

21 A No.

22 Q Was there any data analysis that you

23 performed which did not support what -- some theory

24 or another of a client in litigation?

25 A I don't recall any at this time, no.

1 Q Okay. Backing up to number 28 for a

2 moment.

3 A I probably should say that 28 -- okay.

4 I'm sorry.

5 Q Okay.

6 A Let me go back and say on 29 --

7 Q Okay.

8 A -- that the same response I had with 30

9 is -- is also applicable probably to 29.

10 Q Okay. I'm interested in finding out

11 whether any of the documents you made available for

12 production included draft reports or data

13 analysis. Of any kind. I --

14 A I'm sure they --

15 Q -- realize that --

16 A -- did. I'm sure they did.

17 Q Okay. Do you know whether or not any of

18 those draft reports were produced by your

19 attorneys?

20 A I honestly have no idea what they sent to

21 you from the Miami office.

22 Q Okay. Some of the data that you sent us

23 was in computer format, either on floppies, or

24 I think there were -- there was a Bernoulti disc,

25 and there was an 8 millimeter --

1 A Tape.

2 Q -- streaming tape or something.

3 Is the -- is the data that is on the --

4 are you familiar with what -- what's produced,

5 which disc the two -- there were two Bernoulti

6 discs I believe.

7 A (Nodding head.)

8 Q Are you familiar with what's on those?

9 A Generally.

10 Q Okay. Is that -- is that data available

11 in other formats?

12 A Certainly.

13 Q Okay. And what about the 8 millimeter

14 tape?

15 A Well, any data that's in electronic form

16 would be available in hard copy form --

17 Q I understand that.

18 A -- if we chose to print it out.

19 Q Have you got the facilities to convert it

20 to a different format? For instance, if we can't

21 read the 8 millimeter tape --

22 A Certainly.

23 Q -- could we get you to print us out or,

24 you know, get it into some format we can break

25 into?

1 A We have the ability to provide data in a

2 lot of different forms.

3 Q I understand.

4 A Okay. Certainly we could provide it to

5 you probably in any form you want it in. You know,

6 whether or not, you know, we would be instructed to

7 do that is, you know, up to the attorneys or

8 whatever.

9 We did not provide you anything in any

10 kind of, you know, exotic or manner to be,

11 you know, confusing. We thought honestly that --

12 Q Oh, I --

13 A -- all of it was very straightforward.

14 Much --

15 Q I'm not implying that you did. I'm

16 just -- I'm asking whether or not for some reason

17 we have trouble getting into one of the Bernoulti

18 discs. I understand there's one that's -- that's

19 double spaced, and one that's not. And that may

20 pose a problem.

21 We've had that trouble across the board

22 with electronic media in this case so far with

23 different formats and not knowing how to get access

24 to them. I wondered if that was possible for you

25 to shift it around and provide it in a different

1 format if we needed to do that.

2 A We could. But I -- I would just state

3 that, you know, a double spaced disc is simple --

4 it's a DOS, you know, 6.0 or 6.2 program. All you

5 have to do is -- is be running under DOS, you know,

6 6.0 to, you know, read the double spaced disc.

7 Q Yeah, I understand.

8 A Not a problem.

9 Q I'm not saying that's a -- necessarily the

10 problem.

11 A Okay.

12 Q I don't want to make a technical call on

13 that. But --

14 A I guess in -- directly get back to your

15 question, we could provide you the data in just

16 about any format you wanted it, except I'm not

17 going to put it in any kind of Apple or McIntosh

18 format.

19 Q Is that a philosophical objection?

20 A Well, we don't have any of those systems

21 in our office --

22 Q I understand.

23 A -- for one thing. I've got one Apple

24 computer that I bought one time because we could

25 only get data from the District in that format, and

1 we bought it specifically for that. And it's never

2 been used since.

3 Q Okay.

4 A And we'd be willing to sell it to anybody

5 that wants it.

6 MR. KILLINGER: I guess for the record, I

7 need to state my concerns that Dr. Davis is not

8 personally familiar with the specific documents

9 that were produced by the law firm.

10 I'm also -- I also have concerns that the

11 documents were culled by the firm and that we

12 don't have a privilege list yet. I realize

13 that's a continuing concern that's probably

14 raised in virtually every deposition, but I'm

15 going to do so for the record here as well.

16 And I also have to raise a concern and a

17 reservation about the quantity of documents we

18 got and when we got them. And I realize that

19 Bill probably has some counter to that.

20 But I need to reserve the right to ask

21 questions at a later date about documents that

22 we don't have yet, or we've just gotten our

23 hands on recently. And -- or we hadn't had for

24 a long enough time to dig through the ten or

25 twelve boxes of documents to ask a question

1 about them. So --

2 MR. HYDE: May I respond briefly --

3 MR. KILLINGER: You certainly may.

4 Figured --

5 MR. HYDE: As for the documents produced,

6 I think I've already represented, and I hope

7 you'll take my word for this, that we have

8 provided to you all documents that were

9 provided to us through or from Dr. Davis's

10 office with the exception of what we believe to

11 be privileged documents or attorney-client

12 documents. And that list is being prepared

13 right now.

14 I believe that the practice has been that

15 we provide them by the end of the depositions.

16 In fact, I can say regarding other witnesses

17 for other parties, that I have yet to receive

18 some privileged lists for some long ago taken

19 depositions.

20 As for the -- well, I think that that

21 deals generally with the privilege list.

22 As with the lateness of the documents,

23 certainly we try to provide them to you in as

24 timely a fashion as possible. Some documents

25 ended up, from my understanding, the ones

1 produced in Miami, at a copying service's

2 offices for some period of time because the

3 difficulty of getting them all copied. I don't

4 think that it's our problem or our blame.

5 As for others, there certainly was a late

6 deposition of -- Notice of Taking Deposition

7 from the United States. I don't believe it was

8 sent out till March 1st, we tried to be as

9 responsive to this as possible on this

10 production.

11 And I think that we're all dealing with a

12 very tough abbreviated time scale here. And

13 that coupled with the enormity and breadth of

14 the -- both the U.S. and the Department's

15 Notices made it an ongoing effort, which we

16 have tried very hard to comply with.

17 And Dr. Davis has devoted a great deal of

18 time in the last several weeks to try to come

19 up and produce each and every document that

20 might remotely be relevant to these broad

21 production requirements. I think that is an

22 exercise of our good faith.

23 I think that there's nothing unusual in

24 that, because I have certainly experienced in

25 the depositions that I've taken of deponents,

1 witnesses, that very same thing of late or last

2 minute productions as well.

3 But we understand, Lee, that you have --

4 or asked for five days originally. We've got a

5 fifth day that we will be glad to give you if

6 need be.

7 MR. KILLINGER: I understand.

8 MR. FitzGERALD: We might as well get all

9 of that on the record at this point and be done

10 with it.

11 The United States would join the

12 Department's arguments and position. And --

13 and expand on just a couple of points.

14 I agree that we've -- a number of cases

15 have seen witnesses and documents appear during

16 the deposition because of either a -- a late

17 decision on privilege, a late location, that

18 sort of thing, and, you know, as long as that's

19 at a reasonable level of document production, I

20 don't think anybody has any great concern.

21 Better that than never see it at all.

22 On the other hand, and no reflection on

23 you, Counsel, the witness's testimony thus far,

24 you were not involved in the production of his

25 documents directly, or the screening and

1 selection.

2 But I noted with interest that he, like

3 many of the witnesses that are being deposed

4 during this last phases of the case, were

5 previously noticed going on a year ago, and

6 then efforts were made at that time by all

7 parties to collect their documents for

8 production, and then went into the stay.

9 That suggests that for the purposes of

10 this deposition, only an updating was required

11 of less than nine months' duration. And

12 considerably limited in -- in comparison to the

13 scope of the whole thing.

14 But the timing issue aside, and this is

15 where I say no reflection on you, because you

16 were not involved. In the last two

17 depositions, the witnesses for the League and

18 the United States Sugar Corporation that I

19 took, both witnesses have been processed or

20 pre-processed the same way.

21 That firm staff or attorneys had screened

22 the materials and held aside for eventual

23 review by an attorney perhaps, or a further

24 decision, certain reports that were, in fact,

25 directly to the point of their designations as

1 expert witnesses in the case.

2 And the witness was totally unaware that

3 those reports, which were very germane, upon

4 which they intended to rely -- in fact, were

5 the foundation of their testimony -- had not

6 been provided to opposing parties for the

7 deposition. And it was learned only in the

8 course of the deposition that they existed.

9 Some of which were then provided, some of which

10 were not.

11 I think Mr. Killinger fairly tried to

12 inquire in that area, and has been forestalled

13 from doing so in any reasonable fashion because

14 the process your firm has employed, where the

15 witness has -- he just said, I thought with an

16 incredible burst of candor -- he said, I

17 honestly have no idea what data they sent to

18 you. His words, subject to verification in the

19 ultimate record.

20 MR. HYDE: Well, Dr. Davis has produced an

21 enormous amount of documents in response to

22 both of these extremely broad --

23 MR. FitzGERALD: Certainly not that.

24 MR. HYDE: These --

25 MR. FitzGERALD: There are plenty of

1 witnesses with lots of documents and a lot

2 of --

3 MR. HYDE: I suspect though --

4 MR. FitzGERALD: -- electronic data.

5 MR. HYDE: -- that the process that we've

6 just discussed here is not altogether

7 dissimilar from the process employed by in

8 particular the United States in producing some

9 of their experts' documents.

10 But I can tell you that, you know,

11 provided everything that is not attorney-client

12 or work product privilege, and that reports

13 have been provided; and Dr. Davis is here, he's

14 ready to testify, to offer you his final

15 opinions.

16 And I think he has gone out of his way in

17 materials that have been produced to identify

18 specifically which documents he will be looking

19 to in terms of reliance for his -- his final

20 opinions.

21 So I think that our production in that

22 regard is quite a bit better than some of the

23 productions that have been occasioned with some

24 of the other witnesses. I speak in particular

25 of Dr. Jones whose files were an absolute mess,

1 and are still incomprehensible to us.

2 MR. FitzGERALD: Well, I -- I can't

3 obviously vouch for Dr. Jones' filing system.

4 But the fact of the matter is that we're

5 here now, and we appreciate the effort to

6 segregate those items that he feels are going

7 to be the underpinnings of his testimony, such

8 as they are.

9 But they are clearly all raw data.

10 There's no analysis in there, there's no

11 reports in there. I cannot believe that at

12 some stage Dr. Davis didn't put pen and paper

13 and organize his thoughts in some coherent

14 fashion, even if he shared that with the

15 attorneys. And whether that's attorney-client

16 or not, we can scope out as we get into it

17 further.

18 But it -- it seems to me that the problems

19 earlier do need to be acknowledged and

20 recognized.

21 And as you are quite fond of saying -- I

22 can find it in every transcript of every

23 hearing we've ever had in this matter, where we

24 discuss discovery, which there have been an

25 inordinate number -- this is discovery and

1 we're not limited to what Dr. Davis wants us to

2 look at, because that's what he's going to

3 testify about. I guess that relates back to my

4 point on the 298 districts.

5 MR. HYDE: Well, we have responded to the

6 notices of taking deposition, not necessarily

7 limiting ourselves to what Dr. Davis wants to

8 testify about.

9 But I do think that we have gone overboard

10 in producing documents for you in this regard.

11 And I would suggest that you await the

12 questioning before you draw any conclusions

13 about whether there are specific reports that

14 have been deleted from the production.

15 I think you will be surprised perhaps by

16 what Dr. Davis is going to testify about, and

17 the nature of that testimony, and whether it,

18 in fact, needs specific reports on things.

19 His testimony is intended to be directed

20 to certain specific water quality parameters in

21 large part that are numerical criteria. You

22 don't need to do a report on those.

23 MR. FitzGERALD: Well, you'll understand

24 that we would have little hint of that in the

25 designation propounded by League --

1 COURT REPORTER: I'm having trouble

2 hearing.

3 MR. FitzGERALD: I know you've got a fan

4 right overhead.

5 This -- I just said, you'll appreciate

6 that we would have little hint of that from the

7 designation of witness filed by the League with

8 respect to Dr. Davis. But I'm sure

9 Mr. Killinger can flush that out for us.

10 MR. HYDE: And I -- I think we probably

11 would all agree that we've had precious little

12 hint of any information from any of our witness

13 designations. But let's let Lee take his

14 deposition.

15 Go ahead, Lee.

16 MR. KILLINGER: I was enjoying it.

17 Just as another clarification, I don't

18 want this to be considered to be a collateral

19 inquisition on the 298 cases. And I'll leave

20 that inquiry to my wife.

21 Q But I guess for the record, what I -- I

22 would like to know is do you intend to rely on any

23 of the data or work or analysis or anything that

24 you've done in connection with that case over here

25 in this case?

1 A No.

2 Q Okay.

3 A Unless -- if -- if so, it's also

4 duplicated over here.

5 Q That -- that's fine. I under-- I

6 appreciate that. Okay.

7 Are you licensed in any profession?

8 A No.

9 Q Okay. Have you ever been licensed in any

10 profession?

11 A No.

12 (WHEREUPON, A BRIEF OFF-THE-RECORD

13 DISCUSSION WAS HELD.)

14 Q Have you ever applied for professional

15 license, but been denied the license?

16 A No.

17 Q Okay. Have you ever had your deposition

18 taken before?

19 A Yes.

20 Q When was that?

21 Well, let me start off with a broader

22 question. How many times.

23 A I honestly don't recall.

24 Q More than ten?

25 A Probably in that ballpark.

1 Q Around ten? Okay.

2 Can -- can you give me an idea of what

3 those depositions were -- were related to, and when

4 they were? You may not be able to recall them all

5 from what you just said I understand, but do the

6 best you can.

7 A The --

8 Q Do it sequentially --

9 A -- one --

10 Q -- if you want.

11 A -- the one previous to this one anyway was

12 the one on the 298 district.

13 Then previous to that, there were

14 depositions related to dredge and fill permitting

15 or NPDES permitting.

16 Q Do you recall the clients for those?

17 A Well, for the 298 districts, it was,

18 you know, Parker, Muraro, Razook, whoever. The

19 other people would be I guess Occidental Chemical

20 Company has been some --

21 Q What did -- what'd you get deposed in

22 that -- on their behalf about?

23 A I don't recall specific -- you know, real

24 specifics. But --

25 Q Was it --

1 A -- they were NPDES issues, and there were

2 dredge and fill issues.

3 And the same thing is true relative to,

4 you know, U.S. Steel. I think there was -- or

5 I guess they're called U.S. Agri-Chemicals now.

6 There was also some for I think Mobil,

7 IMC --

8 Q What's IMC?

9 A I think it's International Minerals

10 Corporation.

11 MR. HYDE: It's a phosphate company.

12 A It's a phosphate company in central

13 Florida.

14 Q What'd you testify -- what did you get

15 deposed about with -- for U.S. Agri-Chemicals did

16 you say?

17 A It was -- I'm pretty sure it was dredge

18 and fill related issues for the Department.

19 Q What about Mobil?

20 A Same thing.

21 Q And IMC?

22 A That was a dredge and fill.

23 Q Anybody else?

24 A Not that I recall right now.

25 Q Okay. What geographic locations were the

1 Occidental Chemical --

2 A North Florida.

3 Q And what about U.S. Agri-Chemicals?

4 A All the rest of them were in central

5 Florida.

6 Q What kind of issues were involved in the

7 dredge and fill permitting, say, for -- let's just

8 start with Occidental.

9 A Whether or not, you know, permits should

10 be issued --

11 Q DE--

12 A -- by the Department.

13 Q DEP permits?

14 A Well, then DER.

15 Q DER permits?

16 A Yeah.

17 Q That's fine.

18 Did you testify -- were you involved in

19 any depositions related to any

20 Army Corps of Engineers issues or permitting?

21 A I don't think we've ever litigated any of

22 those issues.

23 Q Okay. What were the NPDES issues with

24 Occidental?

25 A It was related to a new outfall for one of

1 the creeks in that area.

2 Q For what, I'm sorry?

3 A One of the creeks. Roaring Creek.

4 And there may have been some related to

5 some of the other discharge points.

6 Q What -- what were the water quality

7 constituents or parameters of concern in the NPDES

8 permitting in that particular case?

9 A I believe the main parameters were

10 conductivity; pH; biological integrity; and one of

11 the narrative standards that related to, you know,

12 chronic toxicity.

13 Q What were the -- what were the dredge and

14 fill aspects of the U.S. Steel, or

15 U.S. Agri-Chemicals --

16 A I believe they were related to the quality

17 of the areas the permit was requested for and

18 whether or not the mitigation plan adequately

19 compensated for those, whether or not some of the

20 water quality parameters would have been violated.

21 Q Which -- what was the area of that --

22 I mean, what -- what physical location are we

23 talking about? You said it was --

24 A Actually in --

25 Q -- central Florida.

1 A -- Polk and Hardee County I think.

2 Q In wetlands in Polk and Hardee County?

3 A Uh-hum.

4 Q What were the water quality issues that

5 you were working on?

6 A I honestly don't remember. It was kind of

7 what I call the generic Department denial list.

8 Q Lack of reasonable assurances?

9 A Yeah, one of them.

10 Q How was that case ultimately resolved?

11 A The permit was issued.

12 Q What about the issues, the dredge and fill

13 issues for Mobil?

14 A Permit was issued.

15 Q Where -- what was the physical location

16 for that?

17 A I believe it's, you know, in

18 Polk County -- no. It was -- yeah, I believe it

19 was in Polk County. It was their Big Four mine.

20 And there might have been some issues related to

21 Nichols mine.

22 Q I'm sorry, to which?

23 A Nichols mine.

24 Q Okay. Now, this is a phosphate mine

25 again?

1 A Yes. Yes.

2 Q Do you recall what -- was it just a dredge

3 and fill case or --

4 A Yes.

5 Q -- were there water quality issues for

6 NPDES involved in that or --

7 A Quite frankly, we've done both kinds of

8 work for these companies. And to be honest, some

9 of these things kind of run together. I'm not -- I

10 don't think I was ever actually deposed in NPDES

11 issue. There were some, you know, challenges which

12 were -- we had negotiated settlements to, and that

13 sort of thing.

14 Q What about the work you did for IMC, where

15 was that located?

16 A That was in Hooker's Prairie, Polk County.

17 Q What were the issues involved in that?

18 A They were dredge and fill related, and

19 same thing, whether or not the water quality

20 standard would have been violated, that sort of

21 thing.

22 Q Were the -- were the Mobil and IMC cases,

23 was that like run-off from a mine, or was it

24 collateral impacts from mining operations, or what

25 were they?

1 A It was a dredge and fill issue.

2 Q Dredge and fill issue. In --

3 A In other words, the company applied for

4 permit in the IMC case, the mine -- I don't

5 remember the acres, but several hundred acres of

6 marsh. And the Department put out an

7 Intent to Deny, and that was appealed.

8 Q Okay. That was depos -- when -- when were

9 those issues, do you recall, when was Occidental?

10 Approximately.

11 A Well, it's been a while ago. Five to

12 ten years.

13 Q Okay. What about the U.S. Agri-Chemicals?

14 A Probably, you know, five years, plus or

15 minus a couple.

16 Q What about Mobil?

17 A Some of it was probably five to ten, and

18 some of it was maybe three to five. Maybe two to

19 five. No, three to five.

20 Q And what about the IMC work?

21 A Probably three to five.

22 Q So most of the deposition testimony you've

23 given has been a couple, three years ago --

24 A Yes.

25 Q -- at least. Okay.

1 MR. HYDE: Did you mean deposition

2 testimony or hearing testimony or both?

3 MR. KILLINGER: I meant -- those were

4 deposition questions.

5 MR. HYDE: Okay.

6 Q My next segment was: Have you ever been

7 called to testify as a witness, either at a hearing

8 or during a trial.

9 A Yes.

10 Q In what cases?

11 A The IMC one went to a hearing.

12 Q Okay. Any others?

13 A The NPDES issues was before, like, an

14 Administrative Law Judge.

15 Q Uh-hum.

16 A And a lot of the testimony was written.

17 Q Pre-filed?

18 A Right. And --

19 Q Is that still the IMC matter?

20 A No, no, no, no. No. The IMC went to --

21 Q DOAH?

22 A -- an actual DOAH hearing.

23 Q Okay.

24 A Okay. The NPDES issue with EPA was before

25 an Administrative Law Judge, you know, in a Federal

1 EPA --

2 Q Yeah, I understand.

3 A -- type proceeding?

4 Q Sure.

5 A And that was -- there was never actual

6 hearing.

7 Q Okay.

8 A There was a lot of written, you know,

9 testimony -- testimony, you know, prepared and

10 I guess he reviewed it and made decisions based on

11 that.

12 Q Well, which --

13 A Ultimately it was --

14 Q I'm sorry. Go ahead.

15 A -- worked out and they issued permit --

16 Q But which --

17 A -- after a long study. But --

18 Q Which client was that, the NPDES?

19 A That was Occidental.

20 Q Occidental? Okay. That's what I had

21 down.

22 A And there was at least one, maybe two of

23 the other, you know, dredge and fill issues that

24 ended up going to a hearing. But for the life of

25 me, I don't remember which ones they were right

1 now.

2 Q Okay. And those are the -- those are

3 pretty much the parameters of your deposition and

4 either --

5 A Yes.

6 Q -- hearing or trial testimony?

7 A (Nodding head.)

8 Q I believe you testified in this case, did

9 you not, at a hearing?

10 A Well, the entry and access --

11 Q Right.

12 A -- stuff. I didn't think about that.

13 Yes, you're right.

14 Q Okay. Are there any other times when

15 you've testified that didn't immediately leap to

16 mind during that line of questioning?

17 A No.

18 Q Okay.

19 A I mean, there have been, you know,

20 presentations before, you know, Boards and things

21 like that. But nothing I would consider to be a

22 legal hearing, and I didn't really think about the

23 entry and access thing. But you're right, there

24 was some given in that.

25 Q Yeah.

1 In the -- the cases where you went to

2 hearing or gave your pre-filed testimony for the

3 administrative law judge, were you qualified as an

4 expert in any of those proceedings?

5 A Yes.

6 Q And what were you qualified as an expert

7 in?

8 A Basically the water quality area, aquatic

9 ecology and wetland ecology. And I guess also

10 reclamation, mitigation.

11 Q Do you recall whether there was any

12 dispute about whether --

13 A There wasn't any as far as I know.

14 Q Okay.

15 MR. KILLINGER: Let's take a break for a

16 couple minutes.

17 MR. HYDE: Okay.

18 MR. KILLINGER: Does that work?

19 (Recess.)

20 (WHEREUPON, MR. FRYDENBORG WAS NOT PRESENT

21 IN THE ROOM.)

22 MR. KILLINGER: Okay. We can go back on

23 the record.

24 Q Are you currently employed?

25 A Yes.

1 Q By whom?

2 A Environmental Services and Permitting.

3 Q And where is that located?

4 A Gainesville, Florida.

5 Q Is that the address that you gave when I

6 asked for your address earlier in the depo --

7 A Correct.

8 Q -- that's the address of ESP?

9 How long have you worked there?

10 A Oh, ten, eleven, twelve years.

11 Q Okay. What is your position there?

12 A I'm President.

13 Q How long have you been President?

14 A Ten or twelve years.

15 Q Okay. Very convenient.

16 What are your duties there?

17 A I guess they span the whole gamut of

18 running the business.

19 Q So that would include dealing with

20 personnel matters and equipment matters and other

21 things, as well as -- as any expert work that

22 you're doing?

23 A Unfortunately.

24 Q Okay. Have you got ownership interest in

25 the company?

1 A Yes.

2 Q How much?

3 A I don't, you know, particularly care to

4 have, you know, that information disseminated.

5 Q Okay. Is it a public company?

6 A No.

7 Q It's not. It's private.

8 Okay. Is it a partnership?

9 A No.

10 Q Is it a corporation?

11 A Yes.

12 Q But it's closely held.

13 A Correct.

14 Q Okay. Can you give me the number of other

15 shareholders involved in the ownership of the

16 company?

17 A One.

18 Q Can you tell me that person's name?

19 A Bruce T. Lower, L-o-w-e-r.

20 Q Do you have any employment independent of

21 ESP?

22 A Not really. I mean, I own a couple of

23 other things, rental property, and a farm sort of

24 thing.

25 Q Okay. Do you have any other -- how can I

1 phrase this -- I guess, scientific ventures that

2 are independent of ESP?

3 A No.

4 Q Okay. I guess I'll have you look at

5 what's been marked as exhibit 1 -- or 2 rather,

6 I'm sorry. Which is here.

7 (WHEREUPON, EXHIBIT 2 WAS DULY MARKED FOR

8 IDENTIFICATION.)

9 Q And ask if you can identify it.

10 A Yes.

11 Q Okay. What is it?

12 A It appears to be a copy of a, you know,

13 resume.

14 Q Okay. Do you know when this was produced?

15 A No.

16 Q Okay. Well, is it current? I guess I'll

17 give you a chance to read it, if you need the time,

18 that's --

19 A As far as I know, it's current.

20 Q As far as you know, it's current.

21 Okay. Do you have more than one resume?

22 A Probably.

23 Q Okay. Why would you have more than one?

24 A When we bid on a particular, you know,

25 project, someone, you know, may rewrite the resume

1 to emphasize a different area that's more germane

2 to the type project we're trying to capture.

3 Q If you flip to the second page of it,

4 I guess I'll go through some of the items on it.

5 Starting at the bottom I suppose, and moving up.

6 It shows that you have a B.A. from

7 University of Mississippi in '72, in zoology and

8 chemistry. Is that accurate?

9 A Correct.

10 Q Was that a double major, or --

11 A Correct.

12 Q Okay. Did you have to write any degree

13 completion papers or conduct any degree completion

14 studies that were on the order of a dissertation or

15 a thesis?

16 A Not that I recall.

17 Q Okay. What did you do after you left

18 University of Mississippi?

19 A Went to Auburn.

20 Q That's Auburn.

21 Okay. And what'd you do there?

22 A Maybe we should go back just a second.

23 I understood your earlier question to be

24 related only to the B.A.

25 Q Yes. I did. I'm sorry. Oh, okay. Then

1 I don't -- I misspoke. I didn't mean after you

2 left University of Mississippi.

3 What'd you do after your finished your

4 B.A. degree. Thank you.

5 A Then I went into a Master's program.

6 Q Okay. And did you receive a Master's of

7 Science?

8 A Yes.

9 Q And what in?

10 A Limnology and aquatic ecology.

11 Q Is that on the order of a -- a double

12 major, or is that one --

13 A It was --

14 Q -- program for an M.S.?

15 A It was kind of one program.

16 Q Okay. Did you do a dissertation or a

17 thesis in connection with your Master's?

18 A Yes.

19 Q And what was that on?

20 A Had to do with phosphorus analysis,

21 various ways to analytically measure phosphorus.

22 Q Did you have to defend a thesis?

23 A Yes.

24 Q Was it ever published?

25 A No.

1 Q Did you try to publish it?

2 A No.

3 Q Have you provided us a copy of it?

4 A I doubt it.

5 Q Okay. Do you have a copy of it?

6 A I guess that's a good question. I

7 actually have no idea. I could -- I haven't seen

8 it in my, you know, recollection.

9 Q Okay. Well, let me ask a couple more

10 questions about it.

11 It was about phosphorus analysis and

12 analytic methods you said --

13 A Uh-hum.

14 Q -- is that correct?

15 A Yes.

16 Q Was it related to any specific water or

17 type of water or geographic location, or was it

18 strictly a chemical analytical --

19 A It was basically a comparison of using

20 some different analytical techniques, you know, to

21 measure phosphorous. The -- the samples that it

22 was used on was a reservoir in Mississippi.

23 It -- it really doesn't relate at all to

24 what we're doing now if that's what you're getting

25 at.

1 Q Okay. But it was about water though,

2 correct?

3 A Yes, yes.

4 Q It was not about soil.

5 A Water.

6 Q Okay. About water.

7 Do you recall what different analytical

8 techniques you evaluated?

9 Well, let me ask -- before you answer

10 that.

11 Was it a survey of all the analytical

12 techniques that -- that were available at the time?

13 A I don't know that it was a survey of all

14 of them. It was --

15 Q Okay. Then I guess I'll ask --

16 A -- three or four or --

17 Q -- my next --

18 A -- or half --

19 Q -- which ones.

20 A -- a dozen that were, you know, used,

21 you know, during that time period basically on the

22 projects or might have been used on the projects

23 that, you know, we were involved in back in '75.

24 I mean, it was like ascorbic acid method

25 and there was a stannous chloride method. And I

1 don't remember, there were two -- a couple others.

2 I mean, it was somewhere between three and

3 six methods that were, you know, looked at.

4 Q Have analytic methods or techniques for

5 phosphorus analysis changed since the date when you

6 were doing this review on your dissertation?

7 A There have been other methods that have,

8 you know, come about. But some of the same methods

9 are still used. Not -- I mean, back then, there

10 was a -- it was a wet chemistry, you know, method

11 where you took the sample and measured a certain

12 volume of it, put reagents in it, and measured the

13 color development on a spectrophotometer.

14 Basically they do the same kind of things

15 now, but they use auto analyzers and, you know,

16 different techniques to get, you know, lower

17 limits. We were dealing with protection limits

18 I think around, you know, 10 parts per billion,

19 you know, back then. And now -- I'm sorry. No,

20 100 -- 100 parts per billion.

21 Q Okay. Well, just to pursue that just a

22 little bit. What detection limits are

23 theoretically analytically possible today?

24 A I think that, you know, most people

25 probably can get down to the 4 to 5. Some people

1 claim they get 2.

2 Q Is that parts per billion?

3 A Right.

4 Q Is that -- is your statement based on a

5 plus or minus, or is there any range of error in

6 that? If you say 4 or 5 --

7 A Well, there's error in every measurement

8 you ever make.

9 Q I understand that. I'm trying to find out

10 what the range would be. Just --

11 A I --

12 Q -- on a general sense. Let's --

13 A -- I'm saying that, for instance, my

14 company does not have a lab. But when we contract

15 with another lab, we will, you know, find out what

16 their detection limits are, specify detection

17 limits.

18 And generally, you know, the labs will,

19 you know, certify, you know, phosphorus levels down

20 in the 4 to 5 range as more or less a -- a routine.

21 If you want protection limits lower than

22 that, they are available at additional cost. And

23 most people, you know, don't go to the expense of

24 getting those -- the lower protection limits.

25 I think the South Florida Water Management District

1 lab reports their data to 4 parts per billion now.

2 Q Okay. And I'll try to shift away from

3 that, and come back to it later on. I just -- the

4 topic came up, so I thought I'd explore.

5 After you finished your Master's, then

6 what did you do scholastically after that?

7 A Went to Auburn.

8 Q And what did you -- what kind of work did

9 you do there?

10 A It related to again water chemistry,

11 aquatic ecology.

12 Q And did you receive a Ph.D.?

13 A Yes.

14 Q And the Ph.D. is in water chemistry and

15 aquatic ecology?

16 A Correct.

17 Q Okay. Again, is that a joint --

18 A Yes.

19 Q -- program that's just one Ph.D.?

20 A (Nodding head.)

21 Q Did you do a doctoral thesis?

22 A Yes.

23 Q And what was the doctoral thesis on?

24 A Had to do with the accumulation of the

25 parameters in fish.

1 Q What parameters?

2 A I honestly don't remember all of them --

3 Q We talking --

4 A It was --

5 Q -- metals or --

6 A -- phosphorus -- phosphorus --

7 Q -- pesticides or --

8 A -- and metals. It was not pesticides, it

9 was not mercury. It was kind of routine, you know,

10 micronutrients and nutrients, that sort of thing.

11 Q Okay.

12 A Nitrogen was one of them.

13 Q I guess maybe I'll ask for a little bit of

14 clarification. You were talking about accumulation

15 of phosphorus and nitrogen in fish?

16 A Correct.

17 Q Okay. Why did you -- what -- what do you

18 think the significance of -- of research on those

19 topics is? What can you do with that knowledge,

20 what's the value of it?

21 A I don't know that it has, you know, a lot

22 of particular, you know, value. It was more of

23 a -- of a basic research that quite frankly, my

24 major professor was interested in, there was money

25 available to work on that, so -- and it was

1 something that could be done in a reasonable time

2 frame. So that's what I did.

3 Q Did you have to defend the thesis?

4 A Yes.

5 Q Was it published?

6 A Part of it, yes.

7 Q Where was it published?

8 A I don't know.

9 Q Do you know when --

10 A It was probably in --

11 Q Do you know when it was published?

12 A Probably in the -- the late '70s. Well,

13 let's see. Wait a minute. When did I get the

14 degree?

15 Yeah. Probably '78, '79, somewhere like

16 that. And I -- it was probably in the, you know,

17 the fisheries journal. But I honestly don't --

18 don't remember.

19 Q And the fishery journal, is that the name

20 of a publication?

21 A I forget exactly what the title of it is.

22 I don't get it any more so --

23 Q Have you got a copy of that thesis?

24 A Probably.

25 Q Do you know whether you have produced a