STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS SUGAR CANE GROWERS COOPERATIVE ) OF FLORIDA, a Florida ) Agricultural Cooperative ) Marketing Association, ROTH ) FARMS, INC., AND WEDGWORTH ) FARMS, INC., ) ) and ) ) FLORIDA SUGAR CANE LEAGUE, INC.;) UNITED STATES SUGAR CORPORATION;) and NEW HOPE SOUTH, INC., ) CASE NOS. 92-3038 ) 92-3039 and ) 92-3040 ) FLORIDA FRUIT AND VEGETABLE ) ASSOCIATION, LEWIS POPE FARMS, ) W.E. SCHLECHTER & SONS, INC., ) and HUNDLEY FARMS, INC., ) ) Petitioners, ) ) vs. ) ) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, an Agency of the State) of Florida, ) ) Respondent, ) ) and ) ) MICCOSUKEE TRIBE OF INDIANS OF ) FLORIDA, the UNITED STATES OF ) AMERICA, and FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, ) and the FLORIDA WILDLIFE ) FEDERATION, ) ) Intervenors. ) ________________________________) DEPOSITION OF ROBERT R. JOHNSON DEPOSITION OF ROBERT R. JOHNSON 250 Australian Avenue South Clearlake Center Suite 1403 West Palm Beach, Florida November 4, 1992 9:20 A.M. A P P E A R A N C E S: FOR PETITIONERS FLORIDA SUGAR CANE LEAGUE, INC.; UNITED STATES SUGAR CORPORATION; and NEW HOPE SOUTH, INC.: PEEPLES, EARL & BLANK BY: RICK J. BURGESS, ESQ. One Biscayne Tower Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131 (305) 358-3000 FOR RESPONDENT-INTERVENOR THE UNITED STATES OF AMERICA: UNITED STATES DEPARTMENT OF JUSTICE VICKI O'MEARA, ACTING ASSISTANT ATTORNEY GENERAL AND LINDA COLLINS HERTZ, ACTING UNITED STATES ATTORNEY BY: SUZAN HILL PONZOLI, ASSISTANT UNITED STATES ATTORNEY Southern District of Florida 155 South Miami Avenue Suite 627 Miami, Florida 33130-1693 (305) 536-4425 A P P E A R A N C E S (continued): FOR THE WITNESS: GUNSTER, YOAKLEY & STEWART, P.A. BY: DAVID P. ACKERMAN, ESQ. Phillips Point Suite 500 East 777 South Flagler Drive P.O. Box 4587 West Palm Beach, Florida 33402-4587 (407) 650-0541 ALSO PRESENT: RONALD D. JONES, PH.D. 1 The deposition of ROBERT R. JOHNSON, a witness of 2 lawful age, taken for the purpose of discovery and for 3 use as evidence in the above-styled cause, pending in the 4 Division of Administrative Hearings, State of Florida, 5 pursuant to Notice, before Pamela S. Wilson, Notary 6 Public in and for the State of Florida at Large, at the 7 time and place aforesaid. 8 * * * * * * * 9 I N D E X 10 WITNESS DIRECT 11 ROBERT R. JOHNSON (By Ms. Ponzoli) 5 12 13 14 E X H I B I T S 15 JOHNSON EXHIBIT FOR IDENTIFICATION 1(1-7) Deposition Notice 7 16 2(1-4) Witness's CV 12 3(1-12) Table of Contents and Chapter 9 17 from August 1991 Annual Report 13 4(1-25) Table of Contents and Chapter 3 18 from October 1992 Annual Report 13 5(1-4) Letter and outline dated 6-22-92 14 19 6(1-14) Article 14 7(1-2) Field notes 16 20 8(1-15) Water quality data 17 9 Memorandum dated March 2, 1992 38 21 10 Memorandum dated January 6, 1992 38 11(1-3) Memorandum dated September 4, 1992 38 22 12 South Florida Water Management District Map with notations thereon 59 23 13 Hard-copy reproduction of transparency depicting gradient 24 study 97 14 Diagram depicting typical site 25 layout 106 15 Plumbing diagram 108 1 Whereupon: 2 ROBERT R. JOHNSON, 3 was called as a witness by the Respondent-Intervenor and, 4 having been first duly sworn, was examined and testified 5 as follows: 6 DIRECT EXAMINATION 7 BY MS. PONZOLI: 8 Q Would you state your name for the record, 9 please. 10 A Robert R. Johnson. 11 Q And your address, please, Mr. Johnson. 12 A 397 Knottywood Lane, Wellington, Florida. 13 Q Mr. Johnson, I am Suzan Hill Ponzoli, and I 14 represent the United States in the SWIM challenge 15 proceedings, and I'll be asking you a number of questions 16 about the work which you've done in conjunction with Duke 17 Wetland Center and Dr. Richardson. If you don't 18 understand a question, I would ask you to please, you 19 know, help me, and I'll try to frame a better question 20 for you if you -- 21 A Uh-huh. 22 Q -- you will do that for me. 23 Have you had your deposition taken before, 24 Mr. Johnson? 25 A No. 5ÿ 1 Q Have you been prepared for this deposition? 2 A It has been discussed on the general kinds 3 of things that we would be asked about in that aspect 4 with Dr. Richardson, yes. 5 Q You have discussed this with Dr. Richardson? 6 A Well, he's told me the layout, what there 7 is, no problems. 8 Q Okay. You're represented here today by 9 Mr. David Ackerman. I would like to know in what 10 capacity Mr. Ackerman represents you. 11 MR. ACKERMAN: I represent Mr. Johnson individually 12 here today. 13 MS. PONZOLI: So it's my understanding that 14 Mr. Johnson has individually retained you to 15 represent him at this deposition? 16 MR. ACKERMAN: That's not what I said. I said I 17 represent him individually here today. 18 MS. PONZOLI: I guess it is of some interest to the 19 United States who retained you to represent him. 20 MR. ACKERMAN: And that's none of your business. 21 MS. PONZOLI: You don't care to answer that, 22 Mr. Ackerman? 23 MR. ACKERMAN: No. I will say that I've been -- 24 not been retained by any party to this litigation. 25 MS. PONZOLI: Are you willing to indicate whether 6ÿ 1 the Environmental Protection District retained you? 2 MR. ACKERMAN: I am, and they have not. 3 MS. PONZOLI: Okay. 4 Q Mr. Johnson, you are here pursuant to a 5 Subpoena Duces Tecum to produce certain documents -- 6 A Uh-huh. 7 Q -- are you not? 8 A Yes. 9 Q I would like to go through that request for 10 documents and see which documents you're producing in 11 response to it. Do you have a copy of it with you? 12 A I do not -- 13 Q I can give you one. 14 A -- have a copy. 15 MS. PONZOLI: All right. Will you mark this for 16 identification, please. 17 (Johnson Exhibit 1(1-7) was marked 18 for identification by the reporter and is 19 included herewith.) 20 (Discussion off the record.) 21 MS. PONZOLI: We've agreed off the record that the 22 exhibits in this deposition will be referred to as 23 Johnson 1, et cetera. The court reporter, however, 24 to save time, can simply put the initials BJ-1, 25 BJ-2, et cetera. 7ÿ 1 MR. ACKERMAN: Suzan, while we're talking about the 2 subpoena, in relation to an earlier question, I'll 3 be happy to file a Notice of Appearance in the case 4 to show who I represent. The reason I don't -- 5 frankly, I don't -- I'm not real clear whether we 6 represent Duke University, Duke Wetland Center, or 7 just the witness, and I'll enter an appearance 8 clarifying that. That will help. 9 While we are on the topic of the subpoena, 10 as I discussed with you earlier, the witness is 11 prepared to discuss with you the documents he has 12 brought in compliance with the subpoena. He is not 13 going to produce two documents. One is a one-page 14 piece of paper, and the other is a two-page piece 15 of paper, which he is prepared to describe for you 16 generically, in accordance with the instructions 17 set forth on this subpoena so that you may decide 18 whether or not to file an appropriate motion 19 concerning those documents. 20 But I did want to let you know up front that 21 those documents are not going to be produced and 22 that I'm instructing the witness that, if any 23 question that you pose calls for him, in order to 24 answer the question completely, to divulge 25 information shown on those documents, I'm 8ÿ 1 instructing him to not divulge that information, to 2 tell you that the question calls for him to do so, 3 and I'm instructing him not to answer the question. 4 MS. PONZOLI: I think that it is, I guess, very 5 problematic, and I guess we'll have to deal with as 6 we come to it because for my part, I understand 7 Mr. Johnson -- and we'll get into this as we go 8 through his background -- to be working on behalf 9 of a public entity, and all his documents, my 10 understanding would be, would be public records. 11 I guess we can just see when we come to the 12 particular area that he's not responding to my 13 subpoena, or the United States subpoena, to be more 14 specific. I believe that your instruction to him 15 not to answer is overbroad, and perhaps you didn't 16 intend for it to be that way, but it allows 17 Mr. Johnson to withhold information from my 18 questioning without necessarily indicating to me 19 that he is, in fact, withholding information. 20 So I think it would be a fair and more 21 appropriate response to those questions that he 22 indicate that there is more information that he 23 would give me, but pursuant to your instructions, 24 he is withholding that additional information. 25 MR. ACKERMAN: The intention of my instruction 9ÿ 1 was to instruct the witness to tell you, when you 2 have asked a question that calls upon him to 3 divulge trade secret information, to provide you 4 with any information he can without divulging the 5 trade secret information and to tell you that he 6 is not -- cannot fully answer the question 7 because he cannot divulge the trade secret 8 information. 9 The one thing I forgot to mention is that 10 the privilege that we are invoking is the trade 11 secret privilege under Section 90.506 of the 12 Florida Evidence Code. It is possible that I may 13 have missed a privilege, having been very 14 recently retained. If that happens, if I 15 determine that there is another applicable 16 privilege and if we get to the point where you're 17 filing a motion and we're briefing this issue, 18 I'll be happy to let you know any authorities on 19 which we would rely. 20 MS. PONZOLI: I think you're limited to those 21 privileges that you assert. I guess I would 22 object strenuously to your ability to assert 23 additional privileges that might occur to 24 whichever entity you represent, which is totally 25 unclear to the United States at this time. So I 10ÿ 1 think we object completely to the withholding of 2 information pursuant to the subpoena and, 3 further, to the sort of withholding privileges if 4 they seem to occur to whomever downstream. 5 Maybe it would be just cleaner if we 6 proceed to go through the documents and get to 7 the heart of this matter and get our other 8 business done. I would like to say, is it 9 acceptable to you two counsel that all objections 10 would be preserved except as to the form of the 11 question? 12 MR. BURGESS: Yes. 13 MS. PONZOLI: Is that an acceptable format for you? 14 MR. ACKERMAN: That's my understanding of the 15 rules. 16 MS. PONZOLI: Okay. Good. 17 Q Johnson No. 1, Mr. Johnson, is the Notice 18 Duces Tecum for your deposition, and it describes the 19 type of documents that are to be produced. Prior to your 20 appearance here today, Mr. Johnson, was anything filed on 21 your behalf to withhold any documents from production 22 today? 23 A I am not sure what you mean by "filed." 24 Filed with whom? 25 Q Filed in this particular proceeding, the 11ÿ 1 SWIM challenge cases Nos. 92-3038, 92-3039, and 92-3040 2 in the Division of Administrative Hearings in the State 3 of Florida. 4 A Please understand I'm not a lawyer. So when 5 you say "filed," I'm not sure what you mean by the word 6 "filed." I have not -- I have discussed the materials 7 that we have and so on with my employers. 8 MR. ACKERMAN: Will it help if I say that we have 9 not filed a motion for protective order or any 10 papers in the case? 11 MS. PONZOLI: Okay. I think it's clear that the 12 United States will argue that you've waived those 13 objections. 14 Q Documents to be produced, No. 1, a copy of 15 your current CV or similar document. 16 Would you mark this for identification, 17 please. Johnson No. 2 will be Mr. Johnson's CV. 18 (Johnson Exhibit 2(1-4) was marked 19 for identification by the reporter and is 20 included herewith.) 21 Q BY MS. PONZOLI: No. 2 on the request, "A 22 list of all technical, professional, or scientific 23 publications, reports, articles, monographs, thesis, or 24 similar documents in which you are identified as author 25 or co-author related to Everglades research." 12ÿ 1 A That would be both of these. 2 MS. PONZOLI: Will you mark these for 3 identification Johnson 3 and 4. Johnson 3 will 4 be the 1991, and Johnson 4 will be the 1992. 5 (Johnson Exhibits 3(1-12) and 4(1-25) were 6 marked for identification by the reporter and are 7 included herewith.) 8 MR. ACKERMAN: Those are the annual reports? 9 MS. PONZOLI: Yes, sir. These are the annual 10 reports with, I assume, Mr. Johnson's 11 contributions attached to them. 12 Q Is that correct, Mr. Johnson? 13 A That is my contributions, yes. 14 Q And am I correct in assuming that you have 15 authored no other -- 16 A Papers concerning the Everglades. 17 Q Yes, sir. Good. Thank you. 18 No. 3 is actually the copy. What you did 19 was you combined 2 and 3 and simply produced the 20 documents to me. 21 A Right. 22 Q Am I accurate in assuming that? All right. 23 Thank you very much. 24 A There are -- 25 Q Are there -- No. 3 is a little different 13ÿ 1 because it asks for including drafts, edited copies, 2 reviewers' comments, and the final version. 3 A The top one is an outline concept for this 4 year's publication, and the bottom one was my final 5 draft submitted to Curt Richardson for publication. 6 MS. PONZOLI: Would you mark this for 7 identification. Johnson No. 5 will be his 8 outline for this year's publication, and 9 Johnson 6 will be the final draft which was 10 submitted to Dr. Richardson. 11 (Johnson Exhibits 5(1-4) and 6(1-14) were 12 marked for identification by the reporter and are 13 included herewith.) 14 (Discussion off the record.) 15 Q BY MS. PONZOLI: Just so I'm clear, 16 Mr. Johnson, is Johnson No. 6 the same as one of the 17 documents? 18 A Yes. It's the same as this year's annual 19 report. 20 Q As Johnson No. 4. Okay. Thank you. 21 A Uh-huh. 22 Q Are there any reviewers' comments on those 23 articles? 24 A No. 25 Q Were there any reviews of those articles? 14ÿ 1 A Only on campus, I'm assuming, by 2 Dr. Richardson, but he did not send those back to me. He 3 pretty much took them verbatim and added whatever he 4 wanted to. 5 Q Ones that you have given to me -- I think 6 it's 4 and 6, Johnson 4 and Johnson 6 -- are they the way 7 you submitted them to him -- 8 A Correct. 9 Q -- or are they in the final form as 10 Dr. Richardson would have? 11 A No. They're the way I submitted them to 12 him. 13 Q And I'm correct in assuming that you 14 retained personally no drafts? 15 A You've got my drafts. Those are -- those 16 are my drafts. I mean, I work on a computer. 17 Q You just change it as you go and -- 18 A I changed -- 19 Q And it's changed -- 20 A It's changed. So you've got my draft. My 21 draft one is my draft. 22 Q All right. Request No. 4 is, "All documents 23 relating to research done in conjunction with or under 24 the direction of Dr. C. J. Richardson and/or the Duke 25 Wetland Center." 15ÿ 1 A I'm not sure how that one -- relating to 2 research done, there are none. I mean, I'm the manager 3 of the lab. Okay? I don't have anything in that aspect. 4 The only thing you could come closest to is some 5 handwritten notes such as this on hydrology plots that 6 are not even my notes. They're Dr. Richardson's notes -- 7 Q Okay. 8 A -- that we cooperated together to figure out 9 how we're going to do this. 10 Q Are these a composite exhibit, or would 11 these be a separate exhibit? 12 A No. That's -- no. They would be composite. 13 MS. PONZOLI: Let's mark these as Johnson No. 7. 14 (Johnson Exhibit 7(1-2) was marked 15 for identification by the reporter and is 16 included herewith.) 17 Q BY MS. PONZOLI: Just so I'm clear, 18 Mr. Johnson, composite Exhibit No. 7, consisting of two 19 pages of notes and drawings -- these were done by whom? 20 A Dr. Richardson. 21 Q These were both Dr. Richardson's? 22 A He wrote them down. We sat down together 23 and figured out what we were doing, and he sketched out 24 all the aspects concerning one of the experiments. 25 Q Do you have any data that would fit within 16ÿ 1 No. 4 -- 2 A Yes. 3 Q -- Mr. Johnson? 4 A I've got this form here (indicating), which 5 consists of water quality data. Let me see. This data 6 is -- this system just fired off of late, and it's really 7 the run-in, and it's not even -- some of it's even off 8 and inaccurate because we were trying to balance out the 9 systems. So this material is -- it's the run-in period, 10 doesn't mean a whole lot. 11 Q Are you telling me this is hot off the 12 press? 13 A It's hot off the press. 14 MS. PONZOLI: All right. We will call this 15 composite Exhibit No. 8, consisting of 15 pages, 16 essentially, of data. 17 (Johnson Exhibit 8(1-15) was marked 18 for identification by the reporter and is 19 included herewith.) 20 Q BY MS. PONZOLI: Are there other documents 21 in response to No. 4 -- 22 A No. 23 Q -- Mr. Johnson? 24 And I assume that we have not come to the, 25 quote, trade secret, end of quote, request. Is that 17ÿ 1 accurate? 2 A Yes, you have. 3 Q I have? Is it under No. 4? 4 A No. It's under No. 3. 5 Q Oh, it was under No. 3? 6 A 3 and 2 combined. 7 Q Oh, all right. Then we need to -- I'm 8 sorry. I didn't make that clear that I wanted to cover 9 that when I got to it. All right. Under both 2 and 3, 10 we come to these three pages, two documents, which there 11 seems to be some problem in producing to me. 12 Are they a technical, professional, or 13 scientific publication? 14 A It's a portion of. 15 Q A portion of a -- 16 A Of the annual report. 17 Q Of the annual report? 18 A That I just submitted. It was not complete 19 as yet. 20 Q When did you submit this? 21 A A month ago to Dr. Richardson. 22 Q You retain a copy of it in your possession; 23 right? 24 A I don't have one here. 25 Q You don't have one here, but you do have 18ÿ 1 one? 2 A Right. 3 Q Is it two separate portions of the annual 4 report? 5 A No, no. It's a portion of the report. It 6 is not data related in any way, shape, or form. 7 Q Is it done as a part of the research project 8 funded by the Environmental Protection District? 9 A Yes. 10 Q If it's not data related, does it contain 11 conclusions or observations? 12 A No. 13 Q Is it all on a single topic? 14 A Yes. 15 Q Is it a topic on which you have written 16 previously? 17 A No. 18 Q It's a new topic, in other words? 19 A Yeah. Well, it's part of the report. I 20 mean, I haven't written -- there's been nothing coming 21 out on it previously per se. 22 Q Do you have an idea of when this document 23 will be made available publicly? 24 A I'm in the process of preparing -- I mean, 25 it's been more a case of getting the annual report 19ÿ 1 finished. That's been our major thrust. My next step is 2 to prepare a scientific methods paper, and it will be 3 part of that. I am not sure yet, seeing as how we're 4 working so heavily on the experiment, how fast that's 5 going to come out. 6 Q I understood you to say that this was part 7 of -- a portion of the annual report. Is that the 8 1992 report? 9 A (Witness indicates by nodding head up and 10 down.) 11 Q So there will be a separate document that 12 explains scientific methods that accompanies the 13 1992 report? 14 A Eventually. Everything that's in the 15 1992 report explains everything in the detail necessary 16 in any way, shape, or form. There's no problem with 17 that. This is more a case of possible patentable aspects 18 that, at this point in time, I just prefer not to 19 release. 20 Q It's a patentable aspect -- 21 A Possibly. 22 Q -- of your scientific method? 23 A Yes. 24 Q Is that your conclusion? 25 A That's my conclusion. 20ÿ 1 Q And this reflects your work, Mr. Johnson? 2 A Yes. 3 Q Done under the funding, though -- 4 A Uh-huh. 5 Q -- of the Environmental Protection District. 6 Did you have an agreement with the EPD, when 7 you first began to do this work, or with Duke Wetland 8 Center that this type of methodology might belong to you 9 exclusively? 10 A No. 11 Q So your contract doesn't reflect a right to 12 retain this type of -- 13 A No. 14 Q -- of methodology as a -- 15 A (Witness indicates by shaking head from side 16 to side.) 17 Q What is it? Is it methodology associated 18 with the dosing study? 19 A Yes, it is. 20 Q And all three pages are pertaining to 21 methodology associated with the dosing study? 22 A (Witness indicates by nodding head up and 23 down.) 24 Q Are you allowed to tell me what aspect of 25 the dosing study it pertains to? 21ÿ 1 A Sure. I don't see any problem with that. 2 Q Okay. 3 A It's the electronics design. 4 Q What part of the electronics design? 5 A All of it. 6 Q The whole -- 7 A The schematic and the parts involved. 8 Q Is this a solar-powered system? 9 A Yes, it is. 10 MR. BURGESS: No. We're running wires out there, 11 Suzan. 12 MS. PONZOLI: All right. Be nice. 13 THE WITNESS: A 90-mile extension cord. 14 Q BY MS. PONZOLI: Let me ask you, 15 Mr. Johnson, when did you make the decision that you 16 wanted to apply for a patent? 17 A I have not made a decision to apply for a 18 patent yet. 19 Q When did you make the decision that you 20 didn't want to publicly reveal this part of your design? 21 I assume it is your design. 22 A Six to seven months ago. 23 Q Did you discuss this with Dr. Richardson? 24 A Yes, I did. 25 Q And what was the substance of that 22ÿ 1 discussion? 2 A Basically that he agreed at this point in 3 time. 4 Q That this might be something you could 5 retain as a private -- 6 A No. Not so much that I would retain as a 7 private but more a case of -- I did not want to publish 8 all of the details on it as yet. I had been informed 9 that the South Florida Water Management District was 10 planning a program almost identical, not just similar, to 11 mine. 12 And after having put a year and a half of 13 work into something, design and building, I didn't feel 14 that it would be right to turn around and hand it to 15 someone that they could then go out and do the same thing 16 in a very short period of time. It took a lot of work to 17 come up with the design on this thing. 18 Q This is your unique creation -- 19 A Yes. 20 Q -- is what I think you're trying to tell me. 21 A Based on the criteria given to me by the 22 scientists of what they wanted the system to do, I 23 designed the equipment to do so. 24 Q Has anyone told you how long it would take 25 to protect your interest in that if you were to make it 23ÿ 1 available to the South Florida Water Management District, 2 if they were to wish to duplicate the electronics 3 design -- 4 A No. 5 Q -- in some dosing study of their own? 6 A No one has told me that, no. 7 Q Have you explored that conversation with 8 anybody? 9 A No. I know what I've put into it. 10 Therefore, I can tell from what the South Florida Water 11 Management District's capabilities are and monetary 12 funding is and what their ability is to do 13 engineeringwise how long it would take them to do the 14 same thing, and it's a -- plant research takes time. 15 It's not something that you pore liquid in a bottle, and 16 it turns a color, and you get a result. 17 It may be a period of time before we see the 18 results of this experiment, and I don't, basically, want 19 it to be scooped. If they want to do the experiment, 20 that's fine. Let them do their own experiment. 21 Q I'm confused now. It seems like you're 22 talking about experiments having some proprietary right 23 versus an electronic design -- 24 A No. 25 Q -- having a proprietary right. 24ÿ 1 A No. The design enables the experiment to 2 operate. 3 Q Right. 4 A If I give the information to the South 5 Florida Water Management District -- 6 Q Right. 7 A -- or anyone, they could take and take what 8 has taken me a year and a half to put together. 9 Q Right. 10 A And do it in a very short order. 11 Q Sure. 12 A And for that reason, I'm not willing to 13 release, at this point in time, the schematic showing how 14 the design works in fine detail. 15 Q Is this because you believe that they should 16 have to pay you for this schematic design? 17 A No, no. 18 Q Okay. Why is it? 19 A We have had occurrences in the past where 20 people have spent many hours, even to the point of years, 21 doing experiments to where almost verbatim our research 22 proposal was copied, submitted, and done as a very small 23 portion and submitted to a scientific journal that 24 nullified all of the work we had done. 25 If somebody goes out and takes two years to 25ÿ 1 create, lay out, take data and analyze the data, and then 2 write it all up and submit it to a journal, and somebody 3 two-thirds of the way into that two-year period goes out 4 and takes a very small piece of it and does the same 5 thing and then submits that quickly to a journal, that 6 journal will not take the long paper. They won't accept 7 it. It's already been done. 8 Now, I won't, because I was informed through 9 Dr. Richardson -- by Dr. Richardson that the South 10 Florida Water Management District was interested in doing 11 a dosing study, I'm not interested in providing them all 12 of my work and all of my designs, considering I have not 13 even lit this one off yet. It starts up this week, 14 hopefully, or next, and I'm not interested in providing 15 them all of my work for them to take ten times the 16 X resources and go out and try and scoop the same thing. 17 Q Does Dr. Richardson share this philosophy? 18 A At this point in time, yeah. I mean, it 19 will be published. It will be produced. It's just that 20 we need to make sure that everything is absolutely right. 21 As I said, we have not even lit this thing off yet. 22 It's -- 23 Q Because of Hurricane Andrew -- 24 A Yeah. Hurricane Andrew -- 25 Q -- you had to restart? 26ÿ 1 A Yeah. We had to -- we started up, and two 2 weeks after we turned the switches on, Hurricane Andrew 3 blew all my solar panels out. I had to go back out and 4 rebuild and start rebuilding all over again. I mean, we 5 just finally got it to the point where this week or next, 6 hopefully, we can light it off. 7 Q I think my original question -- and maybe 8 you answered it, but I'm sorry. I don't recall -- was 9 when you thought this would be available publicly. 10 A At this point in time, I haven't even sat 11 down to start working out exactly the details on a 12 manuscript for a scientific publication. Dr. Richardson 13 and I have to still discuss who we're going to submit to 14 and what format we're going to use. That has not been a 15 priority at this point. 16 Q How long is it designed to run, Mr. Johnson? 17 A I have set it up supposedly to run for 18 approximately two to three years with no problems, 19 hopefully. 20 Q When would you assume that you might have a 21 goal of publishing -- 22 A Oh. 23 Q -- the first paper? 24 A Before the -- long before the end of that 25 period, but I just -- I can't pick a number for you. 27ÿ 1 Whether it's six months or a year I don't know. There 2 may be changes that have to be made that, when it's brand 3 new and running, you don't know. 4 Q Have there already been changes in the 5 design over time? 6 A Sure. 7 Q Has it gone through -- by "major design 8 changes," one or two? 9 A Concept changes from the beginning, yeah. 10 Q How many can you recall? I'll do this with 11 you in detail later. 12 A One major revision. 13 Q One major. Okay. 14 MR. ACKERMAN: Were you talking about the 15 experiment or the electronics? 16 MS. PONZOLI: I'm talking about the experiment. 17 Q Did you think I meant -- 18 A No. I thought you meant -- 19 Q -- the electronics? 20 A -- the experiment. 21 Q The electronics, I would assume, have been 22 modified to meet the goal -- 23 A Consistently -- 24 Q -- of the experiment? 25 A -- all the way around, right. 28ÿ 1 Q Have they been the same? Have the 2 electronics essentially been the same? 3 A No. They've gone through the changes, the 4 same modifications. 5 Q So they're modified -- 6 A Sure. 7 Q -- to meet the needs of the -- 8 A Right. Exactly. 9 Q -- changes in the experimental design. 10 A Right. 11 Q Who, other than Dr. Richardson, participated 12 in the design of the dosing study? 13 A In the design of the study would be 14 Dr. Jerry Qualls, Dr. Russell Rader, Dr. Craft. That 15 would be it. As a team, we'd get together and go over 16 the same aspects and come up with criteria necessarily. 17 Q Have Dr. Davis or Mr. Larson ever attended 18 any of your planning sessions? 19 A No. 20 Q Have any attorneys ever attended any of your 21 planning sessions? 22 A No. 23 Q Just so that I'm completely clear, your 24 concern is not the proprietary concern in the 25 electronics. It is that someone would publish ahead of 29ÿ 1 you and your team of researchers on the dosing study. Is 2 that the problem? 3 A I don't want them to build -- 4 Q Right. 5 A -- and thereby be able to publish. 6 Q Right. 7 A I'm not doing the scientific research. 8 Q Right. 9 A I don't write up the data. 10 Q Right. 11 A That's not my area. 12 Q Right. 13 A So I don't want somebody coming along and 14 building an identical system -- or they could improve on 15 the system. Anybody could. I don't think there's 16 anything built that can't be improved. But I don't want 17 that done in very short order with the resources of an 18 agency that has already indicated they're going to be 19 doing a dosing study -- after I've put a year and a half 20 into something, to have them basically scoop the whole 21 thing and have it all out. 22 I'm interested in getting the data out and 23 getting the information out and trying to find out what 24 we can do to solve the problems and answer the questions 25 our experiments are trying to do. 30ÿ 1 MS. PONZOLI: I guess that's all I have on that 2 now. I will indicate to you, Mr. Ackerman, I 3 don't think that -- while I can sympathize 4 certainly with Mr. Johnson's feelings, I don't 5 think it's appropriate. So I want you to 6 understand that we will seek to compel this 7 information. 8 We believe that it's public information, 9 and as sympathetic as we may be, our scientists 10 have suffered the same type of having to turn 11 over where they were in their work with the same 12 type of, you know, biting hardship that comes 13 with revealing to the scientific community what 14 you're in the process of working on. I want to 15 be real clear about that. We don't think this is 16 appropriate. 17 MR. ACKERMAN: I understand your position. I am 18 not prepared at this time -- 19 MS. PONZOLI: I understand. 20 MR. ACKERMAN: -- to intelligently argue it with 21 you, but at some time I will. 22 MS. PONZOLI: Okay. 23 MR. ACKERMAN: If you want to call me or write me 24 before you file the motion, at that time I will 25 be better able to discuss with you the applicable 31ÿ 1 authorities and would be happy to do that. 2 MS. PONZOLI: Okay. 3 Q Is there anything else in regard to that, 4 Mr. Johnson -- 5 A No. 6 Q -- that I've somehow failed to elicit in 7 this rather lengthy set of questions? 8 A Not that I can think of. 9 Q Please don't think that we are not 10 sympathetic to that aspect of it. I've really had some 11 heart-rending sessions with federal scientists over the 12 same issue. So I can sympathize. 13 So with the exception of those -- were these 14 done at different times? You said there was one page and 15 then two pages. 16 A No. 17 Q Were they done at different times? 18 A No. 19 Q They were done at the same time. Is one a 20 schematic and one a written explanation? 21 A No. The written explanation is provided in 22 the written report. It is a schematic and a parts list. 23 Q Oh, okay. So we've covered 1, 2, 3, and 24 have you produced everything under No. 4, all the 25 documents relating to research? 32ÿ 1 A Uh-huh. 2 Q We've done all of that? All right. Then 3 No. 5? 4 A I don't have a thing. 5 Q These get a little bit duplicative. 6 A Yeah. 7 Q From this point on it's like how many 8 different ways could I ask you for everything you've done 9 on the Everglades. So I can understand that at some 10 point, you've produced everything you have. All right. 11 All documents relating to research in the 12 EPA. You have nothing additional -- 13 A No. 14 Q -- to what you've already given me? 15 A No. 16 Q Do you retain copies of the quarterly 17 reports at the lab? 18 A I have -- I don't retain them because up 19 until -- 20 Q Right. 21 A Where is it? I have not provided any 22 information on the quarterly reports as an author. 23 Q Okay. 24 A The different people who were involved 25 retained them. So up until -- this next round I will be 33ÿ 1 an author. 2 Q Right. 3 A But at the present, I have not been an 4 author for the quarterly reports. 5 Q But do you have those in your possession? 6 A No, I do not. 7 Q So the lab you were speaking of does not 8 have copies of that? 9 A No. We don't have copies. 10 Q And you don't keep a library there or 11 anything? 12 A I do have a library, but it's predominantly 13 on the South Florida Water Management District documents, 14 all the normal published things that would, you know, 15 fill up a table of just their standard publications you 16 can get out of their library. 17 Q The tech pubs that they have? 18 A Yeah. Exactly. 19 Q But they're not your -- 20 A The SWIM -- 21 Q -- quarterly reports. 22 A Nothing. No, no. 23 Q Then, under No. 6 I asked for all documents 24 relating to research on -- and to save us time here, 25 there's A through H. These are actually the names of 34ÿ 1 various publications that I could come up with that named 2 the different areas of research that have been done by 3 Dr. Richardson or yourself or Dr. Craft or Duke Wetland 4 Center. 5 Do you have any other documents relating to 6 those? 7 A No, I do not. 8 Q No. 7, "All data whether used or not, 9 collected as part of the study of the Everglades 10 Protection Area and/or Everglades Agricultural Area." 11 A You've got everything I've got that I've 12 collected to this date. 13 Q No. 8, "All abstracts and materials used in 14 scientific or public presentations . . ." 15 A I have made none. 16 Q But you don't have any documents from those 17 either? 18 A No. Those were retained by the people who 19 made the presentations. 20 Q No. 9, "All documents relating to 21 presentations on Everglades research." 22 Nothing there? 23 A (Witness indicates by shaking head from side 24 to side.) 25 Q No. 10, laboratory notes, notebooks, hard 35ÿ 1 copies of materials on computer disks, including 2 unpublished research results relating to Everglades 3 research. 4 A I don't -- I don't particularly do the 5 research; so I don't have any unpublished results. 6 Laboratory notes and notebooks -- I gave you the one note 7 that I've got from Dr. Richardson on the hydrology plots. 8 Notebooks, those are kept by the scientists of record, 9 doing the research out. 10 Q No. 11, proposals funded, submitted, or 11 unfunded to do research on Everglades-related research. 12 A I don't make proposals. 13 Q Field notes on Everglades research, No. 12? 14 A That would be that same -- the one on the 15 hydrology plots. I'm the logistical support. 16 Q Okay. Do you have people who work for you, 17 Mr. Johnson? 18 A At the present time, no. I'm the laboratory 19 manager, and we do have a lab tech that works for 20 Dr. Rader -- 21 Q Who is that? 22 A -- that assists me. 23 John Zahina. 24 Q How do you spell that last name? 25 A Z-a-h-i-n-a. 36ÿ 1 Q Does Dr. Rader work with you on a continuous 2 basis at the lab? 3 A His station is at the lab, but he reports 4 directly to Dr. Richardson. 5 Q He lives -- 6 A In town. 7 Q -- locally? 8 A Locally, yes. 9 Q He lives locally. That's more -- 10 A Yes. 11 Q -- or less where reports -- 12 A Right. 13 Q -- for work when he goes into an office. 14 The laboratory is where he would walk in? 15 A Yes. 16 Q And John Zahina, the same? 17 A Right. 18 Q Does John Zahina work more for Dr. Rader 19 than for you? 20 A It splits by the need of what's going on. 21 Q So he could go out and construct something 22 with you one day and go out and pull samples with 23 Dr. Rader -- 24 A Exactly. 25 Q -- the next? 37ÿ 1 A Exactly. 2 Q I think we did 12. No. 13, written 3 instructions from Dr. Richardson and the other 4 supervisors. 5 A Here are -- here's a copy of the request for 6 quarterly reports that came in to the lab. Here's 7 another one on the same thing. The information was 8 posted on the wall. Here's a staff priorities indication 9 concerning job responsibilities of different personnel, 10 who's going to be doing what. 11 MS. PONZOLI: Let's mark these for 12 identification. The March 2, 1992, quarterly 13 report of upcoming presentation would be Johnson 14 No. -- 15 MR. ACKERMAN: 9 16 MS. PONZOLI: -- 9. 17 Johnson No. 10 will be a January 6, 1992, 18 memo from Dr. Richardson on quarterly reports. 19 And then Johnson No. 11 will be a memorandum from 20 Dr. Richardson on September the 4th, '92, 21 regarding staff priorities and communication. 22 (Johnson Exhibits 9, 10, 11(1-3) were 23 marked for identification by the reporter and are 24 included herewith.) 25 Q BY MS. PONZOLI: Mr. Johnson, is that the 38ÿ 1 sum total of the documents that you've produced in 2 response to the Subpoena Duces Tecum? 3 A Yes, it is. 4 Q Thank you very much. 5 (Discussion off the record.) 6 Q BY MS. PONZOLI: Mr. Johnson, I'd like to go 7 through your background with you. You have a Bachelor of 8 Science degree from where? 9 A Cal State Long Beach; California State 10 University, Long Beach. 11 Q And your major was in? 12 A Zoology. 13 Q And did you have a minor? 14 A Not a declared minor, but everything was 15 done in the marine fields. 16 Q I see you have one year of graduate school. 17 A (Witness indicates by nodding head up and 18 down.) 19 Q In what? 20 A In zoology. 21 Q When were you hired by Duke -- who is your 22 employer? Who is your actual employer? 23 A Duke University. 24 Q Duke University. When were you hired by 25 them? 39ÿ 1 A In March of 1990, somewhere around then. 2 Q How was that -- was that some type of a 3 search process where they looked for -- 4 A They had advertised in North Carolina, and 5 they had advertised here in West Palm Beach. Where else 6 they advertised I'm not really sure. 7 Q Where were you living at that time? 8 A I was living here in West Palm Beach. 9 Q In West Palm Beach. And they advertised for 10 what? 11 A A wetlands center manager. 12 Q And your duties would include what? 13 A Basically setting up a laboratory -- 14 locating a facility; setting up a laboratory that was 15 able to do on-site a small amount of water quality work; 16 have area that we could do construction of objects, you 17 know, with whatever experimental materials we need; 18 location of boats on the premises; could house students 19 and professors as necessary and provide them with basic 20 logistics to be able to do field research. 21 Q Does that describe what you presently do? 22 A Yes, to a great extent. I am also 23 considered a research associate, and therefore, I'm 24 involved in helping, assisting, with the design of 25 certain portions of the projects because of my logistical 40ÿ 1 background. 2 Q Do you also reach conclusions -- 3 A No. 4 Q -- from your observations? 5 A No. 6 Q No. But you assist in design? 7 A I assist in design. I assist in data 8 collection based upon what the scientist of record has 9 indicated -- the methods that he wants to have it done 10 and where and when and so on. 11 Q Just so I don't start missing things here, I 12 know that you -- or at least I think you indicated before 13 that you designed the dosing study experiment, the 14 physical plant, or helped design -- 15 A The physical plant. 16 Q -- the physical plant. 17 A (Witness indicates by nodding head up and 18 down.) 19 Q What else have you helped design on behalf 20 of Duke? 21 A The physical plant, once again, of the 22 fertilizer studies and the hydrology study. 23 Q These are three separate -- 24 A Uh-huh. 25 Q Any other designs? 41ÿ 1 A No, no. 2 Q Are there plans to do additional designs? 3 A At this point in time, no. The experiments 4 that we are going to require a physical plant for are 5 pretty much laid out. There may be things come up in the 6 future I'm not aware of that Dr. Richardson wishes to do. 7 At this point in time, no. 8 Q Do you see your work in association with 9 Duke University as having a three-year limit? Do you 10 understand my question? 11 A No, I don't. I don't know. We are all 12 working on soft money. It may not last three years. It 13 may last five. We work on the basis of year to year. 14 Q Just so I'm clear, the Environmental 15 Protection District contracts with Duke Wetland Center or 16 Duke University on a year-to-year basis, to the best of 17 your knowledge? 18 A Yeah. I'm not involved in those 19 negotiations. I don't see the contracts. 20 Q Okay. 21 A I don't know how that specifically works. 22 Q How is your employment negotiated? Is it 23 on -- 24 A On a -- 25 Q -- a year-to-year basis? 42ÿ 1 A Yeah. 2 Q Does it run this March, March to March? 3 A Basically, yes. 4 Q And your annual compensation is what? 5 A 38. 6 Q Is there any opportunity for bonuses or 7 additional overtime? 8 A No. 9 Q Has it been constant through -- 10 A No. It's gone up over time. 11 Q When you started, how much was it? 12 A 30. 13 Q 30. And then was there an incremental time? 14 A Over three years, it's come in. 15 Q Does it come in every six months or every 16 year? 17 A No. Every year, once a year. You get 18 increases once a year. 19 Q Do you remember what the one in between was? 20 A I think I went from 30 to 35 and 35 to 38. 21 Q You do data collection. Whom do you collect 22 data for? 23 A Well, for and with. 24 Q All right. I'm sorry. 25 A Dr. Craft. 43ÿ 1 Q And that would be -- 2 A The fertilizer studies. 3 Q Fertilizer study data. What else? 4 A Dr. Qualls for the dosing study data. 5 Q All right. 6 A And Dr. Rader for the invertebrate study 7 data and Dr. Richardson on all of them -- he involves 8 himself personally in all of them -- and any new projects 9 that we might be looking at or coming up with. I am, as 10 the lab manager, responsible for the logistics. 11 Therefore, I transport people here and there and 12 everywhere and usually go with it. 13 Q Okay. Where is your -- where is the lab 14 location? 15 A At 16139 Okeechobee Road, Loxahatchee. 16 Q All right. And how large a facility is it? 17 A It's a three-bedroom, two-story Cape Cod 18 home with a -- happened to be a -- not a mobile -- model 19 home. It was a model home, and as such, they had 20 furnished or air conditioned the garage. And that's what 21 we use for the laboratory areas. 22 Q What kind of water quality work are you 23 doing there? 24 A At the lab? 25 Q Right. 44ÿ 1 A We're capable of some basic testing of 2 phosphorus, the filtration of waters. Most of the water 3 quality work is done on campus. 4 Q You will collect the samples and ship 5 them -- 6 A Collect them -- 7 Q to North Carolina? 8 A -- filter them, and ship them to 9 North Carolina. 10 Q You will filter them in the lab and then 11 ship them off? 12 A Yes. 13 Q When you do this basic testing of 14 phosphorus, would that be the end of that testing, or 15 would there be more testing to be done in North Carolina? 16 A Yes and no. It depends on what it's for. 17 If it's to determine how much is in our experimental drum 18 for mixing it up -- 19 Q Oh. 20 A -- we have to test it there to find out what 21 we're mixing. If it's -- 22 Q Right. That's the end of that one? 23 A Right, right. Most of it -- for major 24 collections all of it will be shipped to Duke. There's 25 too much for us to consider even thinking about doing it 45ÿ 1 down here. We just don't have the facilities for it. 2 The minor things, just to keep an idea of where we are 3 and so on, two or three samples a day, whatever, might be 4 done here, but most of it is done exclusively at Duke. 5 They have all the equipment we don't have. We've got one 6 spectrophotometer. That's it. 7 Q That's the sum total of your equipment? 8 A Right. We're not set up to the water 9 quality testing whatsoever. It's all done on campus. 10 Q Would you operate the spectrophotometer? 11 A Yes. 12 Q Have you been trained previously to do that? 13 A I've been trained by the scientists here. 14 Q Here. You were trained on the job for this 15 one? 16 A (Witness indicates by nodding head up and 17 down.) 18 Q Now, would that data be retained here at the 19 lab -- 20 A No. 21 Q -- or shipped to North Carolina? 22 A It hasn't been yet because we haven't fired 23 off the system. It's in connection with the dosing 24 study. 25 Q So it's only done incrementally -- 46ÿ 1 A Right. 2 Q -- just to see if this -- 3 A To see if -- 4 Q -- this dosing is at the right level. 5 A Yeah, to see if we're putting our chemicals 6 out at the right level, but it's not for data collection 7 per se. 8 Q Do you also have facilities there for 9 housing students -- 10 A Yes. 11 Q -- and professors? 12 A (Witness indicates by nodding head up and 13 down.) 14 Q Did do you keep boats or airboats? 15 A I have an airboat. 16 Q One airboat. No helicopters, I assume? 17 A No. Airboats are expensive enough. 18 Q Are those all of the data collection you're 19 involved with, the ones you listed for me? 20 A Uh-huh. 21 Q How are the samples shipped to Duke 22 University? 23 A Generally they are shipped one of two 24 fashions. They're shipped packed in ice after they've 25 been filtered in coolers either by the airlines for 47ÿ 1 delivery on that day or by Federal Express for delivery 2 by ten o'clock the next morning. 3 Q Is that the water that you're talking about? 4 A Any samples we send. 5 Q Oh, any samples. 6 A If it's plant material, then we usually ship 7 it in refrigerated cargo trucks up to North Carolina. 8 Q And that time would take how long? 9 A I think it takes four days to get there, but 10 it's been cut plant material; so it's not a problem. 11 Q And bugs? 12 A The bugs are all retained down here. 13 Q Oh, they're kept down here? 14 A This is where Dr. Rader's work office is. 15 Q So he does his counts, et cetera, here? 16 A Those are done here. 17 Q Do you have a budget that you are 18 responsible for, for operating the laboratory within a 19 set amount of money, Mr. Johnson? 20 A Not within a set amount. 21 Q Right. 22 A Dr. Richardson and I discuss every year what 23 we've spent the previous year, what we hope to spend or 24 keep in track and so on, and in that aspect, I have a 25 petty cash fund. 48ÿ 1 Q Right. 2 A That is, I send in receipts, and they send 3 me some money back so I can pay for the petty cash items 4 we purchase, but the university pays the rent. They pay 5 the telephone. They pay the utilities. It all comes out 6 of the university in that respect. 7 Q So those large bills go directly back to 8 Duke University. What about if you bill the dosing study 9 and you purchase PVC piping? 10 A I can buy that out of my petty cash account. 11 Q Your petty cash account normally runs how 12 much? 13 A 4,000. That's maximum. 14 Q On a continual basis? 15 A Yeah. I reimburse -- they reimburse by 16 receipts I submit. 17 Q So is there any other funding other than 18 Duke gets the bills directly -- do they go to Duke, or do 19 they go to the Duke Wetland Center, or is it to Duke with 20 a special subaccount called "The Wetland Center"? 21 A It goes to Duke University to 22 Valinda Wilkins, who is the person in the school 23 environment that handles the accounting procedures for 24 the school, and she handles it for the wetland center and 25 any of the professors and anybody in that particular 49ÿ 1 school environment. 2 Q So other than that directly to Duke and your 3 petty cash fund and your personal salary -- those are the 4 three pots of money you draw from to do your duties? 5 A Uh-huh, correct. 6 Q I see on your list of duties in your resume 7 that you act as a liaison between the center and 8 governmental agencies. What does that involve? 9 A I that means I attend South Florida Water 10 Management District meetings. 11 Q Okay. 12 A I attend Environmental Protection District 13 meetings once a year. 14 Q How often do they meet, Environmental 15 Protection District? 16 A The only one I attend is once a year; so I 17 couldn't tell you how often they meet. 18 Q Is that the one time a year when you report 19 to them on the progress -- 20 A And I don't report. Dr. Richardson does. I 21 just go with him, actually. 22 Q Does the entire team go with him, or -- 23 A No. 24 Q -- just you and Dr. Richardson? 25 A No. Just he and I. 50ÿ 1 Q Do you attend also SAGE meetings? 2 A In some cases, not in all. 3 Q Do you attend T.O.C. meetings? 4 A No. 5 Q Do you ever report back on either the 6 SAGE meetings or the T.O.C. meetings or the South Florida 7 Water Management District meetings, back to 8 Dr. Richardson or anyone else? 9 A Only in a verbal communication a couple of 10 times when he was not present that I attended. It's more 11 of a case he allows me to go when I feel it's necessary 12 to find out what's going on, and I attend. 13 Q Right. 14 A And if there's something important that 15 comes up, I may let him know verbally what it is. 16 Q Have you been to three Environmental 17 Protection District meetings in the time that you've 18 been -- 19 A Yes -- 20 Q -- with Duke? 21 A -- I believe so. 22 Q What usually goes on at Environmental 23 Protection District meetings? 24 A Generally, what we're there for is when we 25 submit or budget for the next year. That's the primary 51ÿ 1 purpose for my attending those meetings with 2 Dr. Richardson -- 3 Q Do you -- 4 A -- just to keep me informed of what's going 5 on more than anything else. 6 Q Who runs the Environmental Protection 7 District meetings? 8 A Well -- 9 Q Is there a single person who's been in 10 charge all three years? 11 A No, no. 12 Q Is it a shifting -- 13 A Maybe I'm using the wrong term. It's E.A.A. 14 taxing authorities. Maybe it's not EP -- it's not 15 environmental protection. It's the E.A.A. taxing 16 authority. That's what we get our budget from. That's 17 what it's called. It's not the Environmental Protection 18 District, not EPA -- or I don't believe it's called 19 "EPD." 20 MS. PONZOLI: Am I wrong? Isn't it the EPD? 21 MR. BURGESS: I think we're talking about the one 22 and the same. 23 THE WITNESS: It's run by their board. 24 Q BY MS. PONZOLI: Who's in charge of their 25 board? 52ÿ 1 A I haven't the vaguest idea, if you want to 2 know the truth. 3 Q Oh, you don't remember who these people 4 were? 5 A When you meet them once a year, it's 6 difficult to keep track of them when you especially don't 7 speak to them or have any -- 8 Q I see that you, understand your duties, have 9 developed and implemented a three-year exhibit plan. 10 What is that? 11 A At the South Florida Science Museum? 12 Q It doesn't say. 13 MR. BURGESS: Could we just make one copy of that 14 document? 15 MS. PONZOLI: Sure, sure. 16 THE WITNESS: If you're referring to the second 17 page, that refers to a job at the South Florida 18 Science Museum as the executive director. 19 Q BY MS. PONZOLI: Oh, this is not in 20 reference to your Duke University work? 21 A No. 22 (Off the record discussion.) 23 MR. ACKERMAN: Let's go on the record. I'm going 24 to leave the deposition at this point and ask the 25 witness to, again, not divulge any of the 53ÿ 1 information contained within the materials which 2 we have withheld on the basis of the trade secret 3 privilege. 4 And again, answer and provide information 5 which is not protected by that privilege as fully 6 as you can and to inform counsel when she has 7 posed a question which calls upon you to divulge 8 that information, answer the question as fully as 9 you can without divulging the information, and 10 not divulge the information that we have 11 withheld. 12 From the sound of the way the deposition 13 has proceeded so far, it does appear that you 14 have asked all the questions that you plan to ask 15 about the trade secrets privilege, but if you 16 decide you want to get back into it -- you have 17 my card -- please call me. If you want to go 18 back into that area, please let me know, and I 19 would ask the witness to call me if he has any 20 questions or concerns. Fair enough? 21 THE WITNESS: (Witness indicates by nodding head 22 up and down.) 23 MS. PONZOLI: That's sounds fine to me. We'll 24 try to get you on the phone. I can't promise 25 we'll be able to, but we'll make the initial 54ÿ 1 call. 2 MR. ACKERMAN: I think I'll be back tomorrow or 3 somebody else. I think it will be me. 4 MS. PONZOLI: For Dr. Rader? 5 MR. ACKERMAN: For Dr. Rader. Thank you. 6 MS. PONZOLI: Let me just ask, Dr. Rader is your 7 expert, isn't he? 8 MR. BURGESS: Yes. Why will he have two separate 9 counsel? 10 MS. PONZOLI: All right. We don't know. All 11 right. Nice to have met you. 12 MR. ACKERMAN: Nice meeting you. Will you just 13 call me later anyway? 14 THE WITNESS: Definitely. 15 (Whereupon Mr. Ackerman left the 16 deposition proceedings.) 17 Q BY MS. PONZOLI: When we're looking on 18 page 2, the rest of these activities, duties and 19 accomplishments, do all of these pertain to other -- 20 A Other jobs. 21 Q -- other jobs, not the one that you're 22 presently involved in? 23 A Correct. 24 Q I guess it would probably save us time, 25 Mr. Johnson, if you could just do a summary of your work 55ÿ 1 experience following your graduation in '79 and just tell 2 me essentially what jobs you held up until the time that 3 you were employed by Duke Wetland Center. 4 A I was hired out of college as the aquarium 5 curator, chief aquarist for the Cabrillo Marine Museum in 6 Los Angeles, California or San Pedro, California. It was 7 a brand new facility that didn't even have the walls up; 8 so I basically built all the marine systems and designed 9 all the marine systems and designed all the displays and 10 set the whole aquarium up. It's Los Angeles's major 11 marine aquarium. 12 While I was there, I was contracted on my 13 own time to do "Wild Kingdom" television shows as the 14 cohost and associate producer and from 1976, which was my 15 first show prior to going to work for the museum, until 16 1985, I did a multiple of different shows for them. 17 Q You cohosted? You actually would help -- 18 A I was on camera. I did half the narration, 19 generally, and I usually came up with the script concepts 20 and all the different shows on the marine shows. 21 Q Would you direct the camera crews or 22 something? 23 A No. We were kind of -- it was a team. We'd 24 been doing them for a number of years together; so we 25 understood how each other worked. 56ÿ 1 Q Okay. 2 A From there I went to work for 3 David Manwarren Corporation. It was an outfit that 4 designed and built zoos and aquariums all over the world. 5 And I went to work for myself after that and 6 more into the marine design and doing predominantly 7 aquarium designs for individuals, small museums, zoos, 8 and so on. 9 I took a job in 1988, October of '88, with 10 the South Florida Science Museum here in West Palm, 11 moving my family from California to here. 12 And then when this position opened up with 13 Duke University, I hired on with Dr. Richardson. 14 Q Do you continue to do any of these other 15 jobs in addition to your work with -- 16 A No. My work load has had me swamped, if you 17 must know the truth. I'd love to do some of those other 18 jobs, but at the present time, no. 19 Q So your experience, if it's fair, would be 20 you've had more marine experience prior to signing on 21 with Dr. Richardson? 22 A Correct. 23 Q Likewise, your publications are related to 24 marine topics. Is that accurate? 25 A That's correct. The publications list 57ÿ 1 that's given to you does not include the latest 2 publication from the Duke Wetland Center. I just have 3 not updated my resume. 4 Q Do you have any particular training in 5 design of laboratory equipment or experiments? 6 A I was an electronics technician, second 7 class, in the Navy; so I've got electronics background. 8 I've worked a variety of different part-time jobs in the 9 construction industry. Having worked as in the aquarium 10 field, you discover very quickly that you have to become 11 a master and a Jack of all trades, and much of the 12 Everglades is using the same kind of type of concepts for 13 movement of water and electronic equipment and 14 development of things. 15 Q The Navy gave you what degree of training? 16 A I had a Class A school in electronics. 17 Q It seems as this is almost like a natural 18 talent, though -- 19 A It is. 20 Q -- more than just a trained. 21 Okay. You have described for me previously 22 three experiments that you helped do the physical design 23 and the building, the first being the dosing study. Is 24 that correct? 25 A That's not the first one we built. 58ÿ 1 Q Maybe we should do them chronologically. 2 Which was the first one you did? 3 A That would be the fertilizing study. 4 Q Then the second one would have been? 5 A It would have been the dosing study and then 6 the hydrology study. 7 Q Then the hydrology. Okay. Do any of the 8 publications that you've handed me deal with the 9 fertilizer study? 10 A No. 11 Q Did the notes that you handed me from 12 Dr. Richardson -- did they deal with the fertilizer 13 study? 14 A No. 15 Q Are there any documents -- 16 A No. 17 Q -- that you gave me that dealt with that? 18 I'd like to mark this for identification. 19 It's a South Florida Water Management District map of the 20 lower half of Florida. 21 (Johnson Exhibit 12 was marked 22 for identification by the reporter and is 23 included herewith.) 24 Q BY MS. PONZOLI: Mr. Johnson, I'd like for 25 you to indicate to me where the fertilizer study was 59ÿ 1 located. 2 A It was located in three locations in area 3 2-B. One is seven-tenths of a mile from the S-38 -- or I 4 should say the L-36 canal on the eastern side of 2-A -- 5 excuse me -- 2-B. 6 Q Okay. 7 A One is approximately one mile from that same 8 location. And one is on the western side of 2-B about 9 halfway between the Sawgrass Recreation Park and the 10 corner. 11 Q Are you marking those on the map roughly -- 12 A Yes, I am. 13 Q -- where you believe -- 14 A Yes. So we've got -- there's one site, 15 there's one site, and here's one site (indicating). 16 Q Now, when was this fertilizer study first 17 designed, to the best of your knowledge? 18 A It was discussed as a team effort down here 19 after I had set up the laboratory in the early spring of 20 1990. 21 Q And who was on the team? 22 A Dr. Craft -- 23 Q Okay. 24 A -- Dr. Qualls -- 25 Q All right. 60ÿ 1 A -- Dr. Richardson. 2 Q What was the purpose of this experiment? 3 A As I understand it, from the hypothesis 4 generated by Dr. Craft, who was really the man in charge 5 of that experiment, it was a loading experiment to apply 6 fertilizers in the levels of phosphorus and a combination 7 of nitrogen and phosphorus and just nitrogen at different 8 levels to determine or to try and find out what plants 9 would do under these different levels, what plants would 10 invade, what plants would die out, what the effect was of 11 phosphorus additions equivalent of what they normally get 12 over the year at the high end and down to the -- with 13 controls to where there's no phosphorus added and so on. 14 Q Do you recall what the actual hypothesis of 15 the experiment was? 16 A Not -- not in specifics, no. 17 Q Okay. 18 A It's covered in the annual reports of all 19 three years. 20 Q To the best of your knowledge, do the annual 21 reports reflect what you recall going on in those 22 conversations? 23 A Very much so, uh-huh. 24 Q At these three sites, -- well, strike that. 25 Why were these three particular sites 61ÿ 1 chosen? 2 A The western site along over here close to 3 the -- 4 Q Can we label them A, B, and C? Would that 5 help? 6 A Sure. That would be fine. 7 Q A will be the western. B will be the 8 midpoint, and C will be the eastern. 9 A The experiment was chosen to run in three 10 different types of plant communities. The A site is a 11 slough community; the B site is a mixed community of 12 sawgrass and cattail; and the C site is a pure sawgrass 13 community. And by traversing the dike into 2-B, we 14 needed to -- at the time we did not have a boat. We 15 needed to be able to get to the sites readily. 16 We needed an area that was not inundated 17 with any water flow per se of the schedule -- we were 18 informed by the South Florida Water Management District 19 that 2-B was basically a rainfall schedule. What soil 20 samples and water samples had been taken by Dr. Craft in 21 the area over time had shown that it was a low 22 concentration area, was not been fed specifically by any 23 waters whatsoever. It was mainly just rainfall. 24 And we wanted to be able to start off with 25 an area that was to some extent, you might say, 62ÿ 1 background minimal and be able to add material to it to 2 find out what the reaction would be. 3 Q So you chose an area that was physically 4 accessible -- 5 A Exactly. 6 Q -- because you had no airboat -- 7 A Right. 8 Q -- to get you some distance into a wet 9 marsh? 10 A Right. 11 Q And you chose an area that did not have 12 flow. Is that accurate? 13 A Correct. As it turns out now, I would not 14 have chosen any other place. It turned out to be the 15 best site, whether we had a boat or not. 16 Q Excuse me. I missed something. 17 A Well, if you have a boat, you can look all 18 over the place. 19 Q Right. 20 A You can use helicopters and get flown a lot, 21 and we could have chosen a lot of sites and said, well, 22 this would be a lot better, but we didn't have a boat; so 23 we couldn't get to it. Now that we've been everywhere 24 out there with helicopters, airboats, by foot, I still 25 would have chosen exactly where we're at because we were 63ÿ 1 lucky enough. We chose the right sites to begin with. 2 Q But you chose them, really on the basis of 3 this -- 4 A On the basis of -- 5 Q -- slough? 6 A -- accessibility -- 7 Q Accessibility. 8 A -- their type of plant communities and the 9 low levels of water flow and input. 10 Q Who made the determination as to the slough, 11 the mixed sawgrass-cattail? 12 A Dr. Craft did. 13 Q Did Dr. Craft do initial soil levels of 14 phosphorus in the soil? 15 A I'm sure he did. I mean, that's part of the 16 basic experiment. 17 Q Did you have to build, physically build, 18 something for this experiment? 19 A Yes. 20 Q What did you have to build. 21 A We had to build enclosures, two-meter-square 22 enclosures, and there are 81 of them. 23 Q There are 81 enclosures. Obviously, they're 24 not equally divided. How many on each? 25 A Well, there's three reps per site of -- I 64ÿ 1 believe it's nine plots, but not all plots have 2 enclosures. There's walled and unwalled enclosures for 3 controls. 4 Q Are they evenly divided? 5 A There's one unwalled control. There's one 6 walled control, and all the rest of them are treatments. 7 And then there's three reps per site and three sites. I 8 think that adds up to 81. 9 Q What did you build? 10 A I built all of the enclosures, provided all 11 the materials. 12 Q Explain the enclosures. You said they're 13 two-meters square, but are they -- 14 A They're fiberglass roofing, heavy-duty 15 fiberglass roofing panels that are cut down to the right 16 size with two-by-two square stakes in each corner drilled 17 and set with special bolts so that we could seat them 18 into the soil, below the soil's surface. These had to be 19 dug in approximately 8 to 10 inches under the soil's 20 surface, then aligned and bolted together. Then we have 21 to put foam in the corners to keep the water flowing, the 22 water in the pipes -- in the sites, and then signage in 23 the area and so on. 24 Q Wait, wait. You're going fast for me. 25 A Sorry. 65ÿ 1 Q You put foam where? 2 A Roofing panels are often like this 3 (indicating). 4 Q Right. 5 A Ours are like this. They're kind of squared 6 off at the bottom -- 7 Q Right. 8 A -- because they're very heavy fiberglass. 9 Q They're kind of -- what is it? What is that 10 design called where it's squared off? There's a name for 11 it. 12 A I don't remember. 13 Q Yes, yes. 14 A But when you fasten these two-by-two 15 posts -- 16 Q Right. 17 A -- you've got openings. 18 Q Right. 19 A We didn't want water flowing in and out, 20 washing away the fertilizer as it's applied; so each one 21 of those openings had to be sealed so that the water 22 entering -- wasn't entering and exiting thereby flushing 23 the system. 24 Q So you have almost a swimming pool effect. 25 A To some extent. I mean, it's not -- you 66ÿ 1 know, it's a swimming pool with no bottom. 2 Q Pardon? 3 A It is a swimming pool with no bottom. It's 4 just walls. There's no bottom. 5 Q Right, right, right, right. 6 A So as water levels change, water can go up 7 and down per se. It just can't flow. If it was flowing 8 from the south to the north, it couldn't. 9 Q Right, right. Did you ever judge the lag in 10 time between the water levels outside the two-by-two 11 squares and the water levels inside? 12 A There basically isn't any. It's that water 13 levels in that particular area in 2-B don't change a lot, 14 and being rainfall fed, any water that you have would not 15 only -- it would come up through the bottom if it changed 16 dramatically. So there wasn't any flows per se. 17 Q You've been with them about three years. 18 How much time would you estimate you've spent out there 19 in the field? 20 A I probably spend three days a week in the 21 field. 22 Q Every week of the year, more or less? 23 A Well, there's more -- probably two thirds of 24 the year. We don't -- there's not a lot done back at the 25 lab. Most of it is our -- we're field research; so we