108
1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
SUGAR CANE GROWERS COOPERATIVE )
3 OF FLORIDA; ROTH FARMS, INC.; and )
WEDGWORTH FARMS, INC., )
4 Petitioners, )
vs. )DOAH Case No. 92-3038
5 SOUTH FLORIDA WATER MANAGEMENT ) 92-3039
DISTRICT, an agency of the State ) 92-3040
6 of Florida; et al., ) 92-6796
Respondents. ) 92-6797
7 - - - - - - - - - - - - - - - - - x 92-6799
FLORIDA SUGAR CANE LEAGUE, INC., ) 92-6800
8 UNITED STATES SUGAR CORPORATION; )
and NEW HOPE SOUTH, INC., )
9 Petitioners, )
vs. )
10 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State )
11 of Florida; et al., )
Respondents. )
12 - - - - - - - - - - - - - - - - - x
FLORIDA FRUIT AND VEGETABLE )
13 ASSOCIATION; LEWIS POPE FARMS; )
W.E. SCHLECHTER & SONS, INC., )
14 and HUNDLEY FARMS, INC., )
Petitioners, )
15 vs. )
SOUTH FLORIDA WATER MANAGEMENT )
16 DISTRICT, an agency of the State )
of Florida; et al., )
17 Respondents. )
- - - - - - - - - - - - - - - - - x
18 100 Southeast 2nd Street
Miami, Florida
19 March 2nd, 1994
1:06 p.m. - 5:20 p.m.
20
DEPOSITION OF DENNIS P. LETTENMAIER
21 VOLUME II
22 Taken before BARNET I ABRAMOWITZ, court
23 reporter and Notary Public in and for the State of
24 Florida at Large, pursuant to Notice of Taking
25 Deposition filed in the above cause.
109
1 AFTERNOON SESSION
2 1:06 p.m.
3 BY MR. LOREDO:
4 Q. I would like to remind you, Doctor, you
5 are still under oath, and if we can kind of pick up
6 where we left off, you were talking about the work
7 you were doing for the South Florida Water Management
8 District between '91 and '92?
9 A. Yes.
10 Q. Do you recall your last day of employment
11 or when you were under contract with the District?
12 A. No, not specifically. I could go back and
13 doublecheck to give you an exact number, so I am sort
14 of guessing, but I seem to recall the contract was
15 about one year's length, and then there was an
16 extension for some period of time, either 60 or 90
17 days, for the purposes of them to complete the review
18 and for us to get the final thing out.
19 It seems to me as if it was some time in
20 November of '92 that the thing, the final report was
21 delivered and the contract was completed.
22 Q. Now, the review process, was that a review
23 of your work by other peers?
24 A. Yes, there were two parts of that. I was
25 required as part of my contract to bring in some
110
1 outside reviewers which I got to pay for and they
2 approved, and then they had internal review as well,
3 and then I got the comment of all reviewers back.
4 Q. Who were the outside reviewers?
5 A. Ken Reckow with Duke was one of the
6 outside reviewers; there's a woman at N.C. State, and
7 I cannot remember her name offhand; and Tim Cohen at
8 the U.S. Geological Survey was the third of the
9 outside reviewers, and then I'm not sure precisely
10 who they sent it to inside.
11 Q. What type of comments did you review from
12 the review?
13 A. I would have to go pull the file out to
14 really give you anything detailed on that.
15 Q. From your best recollection, what were the
16 nature of the comments?
17 A. The kind of things that you would see on
18 any sort of technical project. With the outside
19 reviewers, the comments were all fairly specific
20 things, none of them that really required additional
21 analysis or anything like that.
22 It was more in the nature of you can do a
23 little better job of explaining something in one
24 chapter, or it would be nice if this figure was
25 redrawn or we added a figure to show something or
111
1 other. None of that stuff really took very long.
2 There were some people in the District --
3 some of the District reviewers, one in particular,
4 wanted a whole lot of additional analysis conducted
5 which I felt was outside the scope of the contract,
6 and I wrote them a letter to that effect, citing a
7 clause in the contract that if they wanted additional
8 work done, in fact they were going to have to pay for
9 it, and the project manager came back and said no,
10 they really didn't want that done.
11 Those comments were not going to be
12 addressed by doing additional substantive work, that
13 we would address them the way we suggested which was
14 some additional explanation and so on.
15 Just in terms of time that we spent on
16 revisions and so on, it probably didn't exceed two or
17 three days to produce the final version.
18 Q. Who was the District reviewer that you
19 sent the letter to?
20 A. It was the project manager, Susan Gray. I
21 don't know who the reviewer was. That was the
22 information I was provided.
23 Q. You don't know?
24 A. It was somebody from outside the group
25 that was funding the work. It was sort of that they
112
1 thought it would be wonderful to have a lot of
2 additional work done, but they weren't paying for it,
3 and the contract wasn't paying for it either.
4 Q. Did you have to revise any of your
5 analysis of the work?
6 A. To my knowledge, it was all basically
7 presentation details that were revised.
8 Q. Did you ever have an opportunity to go
9 back and re-evaluate the analysis?
10 A. No, it was only done a little over a year
11 ago.
12 Q. After you completed the work, was
13 additional work requested or another contract offered
14 to do any other work for the District?
15 A. To me?
16 Q. Yes.
17 A. No. I'm on some mailing list where they
18 -- I get requests for proposals from time to time,
19 but given that I started working on this project, it
20 would be inappropriate to respond to those, so they
21 get filed with my other recycled paper.
22 Q. How did you come about to work on the
23 Everglades project?
24 A. I got a phone call.
25 Q. From who?
113
1 A. Initially from a consultant in the Seattle
2 area whose name I can't recall, but I'm sure Bob
3 knows who. It was never clear to me quite what the
4 relationship was, but they had become aware of the
5 project and/or possibly been requested to provide
6 services or were being considered to provide
7 services, and apparently they were aware of my work
8 and aware that they would need some expertise in that
9 area.
10 Subsequently, I got a call directly from
11 one of Mr. Blank's colleagues at then Peeples, Earl &
12 Blank, and I can't remember what the details were.
13 The consultant who originally called me ended up not
14 working on the project, but I was requested to meet
15 with the people here.
16 Q. When?
17 A. The initial contact was, I think, about
18 June of '92.
19 Q. So you were still finishing up the
20 District project in Lake Okeechobee?
21 A. Right, but I did not do any work on the
22 project until after the Okeechobee work was
23 completed.
24 Q. But did you have several meetings, one
25 meeting?
114
1 A. There was one meeting in Washington, D.C.
2 in June, I believe, of '92.
3 Q. Who did you meet with?
4 A. I met with Bob Blank, and I believe John
5 Davis was present at that meeting; Rick Burges might
6 have been, I can't remember.
7 Q. Rick Burges -- that's not the same Burges?
8 A. No, Rick Burges worked for Earl, Blank,
9 Kavanaugh & Stotts.
10 Q. How long was this meeting for?
11 A. Oh, part of a day. I stopped on my way on
12 a trip to Europe at Dulles Airport. I think we met
13 for a few hours.
14 Q. Were you retained then, were you actually
15 contracted to do work for them?
16 A. There was an initial contract to do a
17 review of the SWIM Plan, and that contract was
18 related specifically to that work which was then
19 later summarized in correspondence some time in the
20 fall of '92.
21 The work was done after the final report
22 had been submitted to the District on my other work
23 because I was trying to avoid having any overlap and
24 get that project done first.
25 Q. Was the contract oral or written, the
115
1 initial contract?
2 A. There was a written contract.
3 Q. Was there one or more correspondence
4 summarizing the contracts with relationship between
5 Mr. Blank's law firm and yourself regarding the
6 Everglades project?
7 A. Correspondence from me?
8 Q. No, between you, going either way?
9 A. My recollection was that they wrote me a
10 letter saying what the terms of that initial contract
11 would be, and I fulfilled that contract by writing
12 them a letter back reporting on the work that I had
13 done.
14 Q. And can you tell me what initial work you
15 did?
16 A. I was asked to review the SWIM Plan with
17 particular attention to some of the statistical
18 analyses.
19 Q. Did you review the complete SWIM Plan?
20 A. No, only the statistical aspects of some
21 of the analysis that had been done.
22 Q. Do you remember what sections of the SWIM
23 Plan that encompassed?
24 A. I could never keep straight appendices E
25 and F having to do with Loxahatchee limits analysis,
116
1 water quality. That was the main focus of my work.
2 There was also some assessment of the Everglades Park
3 water quality trends.
4 Q. Did you review both appendices E and F, or
5 you don't know which one you reviewed?
6 A. I said I can't remember which is E and
7 which is F.
8 Q. So we can get it correct for the record,
9 appendix E is entitled: Derivation of Phosphorus
10 Limits for Everglades National Park and Phosphorus
11 Levels for Loxahatchee National --
12 A. That's the appendix, it was E.
13 Q. Did you also review appendix F, which is
14 is entitled: Documentation of Models Used to
15 Determine the Size of Stormwater Treatment Area?
16 A. No.
17 Q. At least at the initial point?
18 A. The initial work we are speaking of
19 pertains only to appendix E.
20 Q. We will slowly move forward.
21 What were your comments after you reviewed
22 the SWIM Plan?
23 A. I felt there were some problems with some
24 of the statistical analysis.
25 Q. Are we talking now about appendix E of the
117
1 SWIM Plan?
2 A. Yes.
3 Q. I will back off of this part right now.
4 I will take you back to what we had marked
5 as Exhibit 1, which was the subpoena and the
6 documents to be produced.
7 No. 2 of the documents required to be
8 produced states whether you had any documents which
9 reflect or relate to your professional, business or
10 financial relationship with any of the following.
11 Let me ask you the question. Do you have
12 any either professional, business or financial
13 relationship with Sugar Cane Growers Cooperative of
14 Florida?
15 A. None directly. My client is Earl, Blank,
16 Kavanaugh & Stotts.
17 Q. Have you had any indirect contacts with
18 anyone at the Sugar Cane Growers Cooperative of
19 Florida?
20 A. In what respect?
21 Q. With respect to this case?
22 A. I.e., has anyone from that group ever been
23 at a meeting I have been at?
24 Q. That will work.
25 A. I don't know -- this is the co-op?
118
1 Q. This is the co-op.
2 A. I believe the answer to that is no.
3 Q. Is it possible someone from the co-op was
4 in a meeting?
5 A. I don't believe so.
6 Q. You do realize that the work you are doing
7 for Earl, Blank has a direct benefit for the co-op?
8 A. I wouldn't know.
9 Q. You don't know?
10 A. My client is Earl, Blank, Kavanaugh &
11 Stotts.
12 Q. I understand that, but the work you are
13 doing for them relates to work that will benefit the
14 co-op -- you don't know?
15 A. I'm not aware in enough detail of what the
16 position of the co-op might be or what their interest
17 might be to know whether that work is of any more
18 interest or benefit to them than it is for your
19 client.
20 Q. If you didn't have any meetings with
21 anyone at the co-op, did you have any type of
22 discussion with anyone at the co-op or in any
23 situation where someone at the co-op was there?
24 A. To my knowledge, no.
25 Q. In a telephone conference possibly?
119
1 A. To my knowledge, no, I cannot recall. I'm
2 aware of who the co-op is and I am somewhat aware of
3 their involvement in this case, but I am not aware of
4 any conversations where they were present.
5 Q. How about written communications?
6 A. With them directly?
7 Q. Yes.
8 A. No.
9 Q. Do you know if any of your work was
10 received by them?
11 A. That I would have no way of knowing. It
12 would not have been unless Earl, Blank, Kavanaugh &
13 Stotts had passed it along.
14 Q. But you have no knowledge?
15 A. I have no knowledge that that was passed
16 along. I have no knowledge that it was not.
17 Q. How about for Roth Farms, Inc.?
18 A. The comment would be the same except that
19 I'm not even sure who they are other than that I have
20 seen the name.
21 Q. A similar line of questions for Wedgworth
22 Farms, Inc.?
23 A. The same thing. I don't even know who
24 they are.
25 Q. How about the Florida Sugar Cane League?
120
1 A. The Florida Sugar Cane League, I have
2 always been a little vague as to at the time Florida
3 Sugar Cane League was cooperating with U.S. Sugar, as
4 to whose place were whom. So I am more vague than I
5 am with respect to the co-op as to whether there
6 might have been somebody representing them present at
7 a meeting.
8 Q. You are saying "more vague" because you
9 don't know exactly who they were?
10 A. Because I can't keep track of exactly,
11 yes. It is vague to me as to whose representatives
12 were U.S. Sugar, and there was only one, I believe,
13 meeting that I was at that there were any
14 representatives other than other consultants present.
15 Q. Are you saying there was one other meeting --
16 A. There was only one meeting, period, that I
17 have ever attended where there were representatives
18 other than other consultants immediately working on
19 this case whose clients were Earl, Blank, Kavanaugh &
20 Stotts at which I was present. That was the only
21 meeting that would be in question.
22 Q. When was this meeting?
23 A. That meeting was last summer, midsummer.
24 Q. Where did the meeting take place?
25 A. Earl, Blank, Kavanaugh & Stotts's office
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1 here.
2 Q. What did the meeting pertain to?
3 A. Payment schedule, mediation payment
4 schedule.
5 MR. LOREDO: Is this the mediation?
6 MR. BLANK: Yes, it is.
7 BY MR. LOREDO:
8 Q. The same line of questions for United
9 States Sugar Corporation.
10 A. Well, it is my understanding that U.S.
11 Sugar is Earl, Blank, Kavanaugh & Stotts's client.
12 Q. Did you have any meetings?
13 A. There is one meeting at which there were
14 representatives of U.S. Sugar present.
15 Q. Are we talking of the meeting of last
16 summer?
17 A. Yes.
18 Q. Were there any telephone conferences where
19 U.S. Sugar, any representative of U.S. Sugar was
20 involved where you were also in communications on the
21 phone?
22 A. To my recollection, no. There is some
23 chance there might have been regarding mediation, but
24 I do not have a good recollection on that. I am
25 certain that there would not have been any other than
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1 in the context of mediation activities.
2 Q. How long did the mediation activities take
3 place for?
4 A. I'm sorry, I don't understand the
5 question.
6 Q. What was the time frame, was it for one
7 day?
8 A. The meeting?
9 Q. Yes.
10 A. The meeting, that meeting here in town was
11 probably two days. However, most of that was
12 technical and was with other consultants.
13 Q. And that was at Earl Blank's office?
14 A. Yes.
15 Q. The same line of questions for New Hope
16 South, Inc.?
17 A. I don't know who they are.
18 Q. Florida Fruit and Vegetable Association?
19 A. I don't know about them.
20 Q. Lewis Pope Farms?
21 A. No.
22 Q. W.E. Schlechter & Sons, Inc.?
23 A. I don't know about them. The previous
24 answer to the question, yes or no -- I mean I don't
25 know about them.
123
1 Q. I understand you.
2 Hundley Farms, Inc.?
3 A. I don't know about them.
4 Q. When you are saying no, you don't know
5 about them, you also never communicated, never spoke
6 to anyone?
7 A. I'm saying since I don't know about them,
8 I wouldn't have known if there was somebody in a room
9 that was from them, that that's who it was.
10 Q. Or on the phone?
11 A. Or on the phone.
12 Q. How about from the Everglades Agricultural
13 Area Environmental Protection District?
14 A. The same.
15 Q. The same answer, okay.
16 Hopping Boyd Green & Sams?
17 A. The same.
18 Q. Peeples, Earl & Blank, P.A.?
19 A. Yes, certainly they are my client.
20 Q. Just checking.
21 "Orno Hoffman Fernandez & Cole"?
22 A. The same -- i.e., the same, that I don't
23 know who they are.
24 Q. This document requested that you provide
25 any documents that reflected the business and
124
1 professional relationship between any of the parties
2 I have just mentioned.
3 The only one that you acknowledge is your
4 client and that you do have a financial relationship
5 and business relationship with, is Earl, Blank.
6 You indicated that there is an actual
7 written contract. I believe that those contracts
8 should have been provided me in response to this
9 request.
10 Can you tell me why they were not
11 provided?
12 A. There is no current contract with Earl,
13 Blank, Kavanaugh & Stotts.
14 Q. Did you not previously state that there
15 was a letter, initial letter which --
16 A. I don't have a copy of it in my files.
17 Q. Excuse me?
18 A. I don't have a copy of it.
19 Q. Do you have a copy of any of the letters
20 that Earl, Blank sent to you which also memorialize
21 further contractual relationships?
22 A. There was only one letter, and in fact I
23 saw that yesterday in Earl Blank's office. I had
24 forgotten it existed.
25 MR. LOREDO: Can you tell us why we didn't
125
1 receive the initial letter or the subsequent letter?
2 MR. BLANK: I don't think there was a
3 subsequent letter.
4 THE WITNESS: No subsequent letter, one
5 letter.
6 BY MR. LOREDO:
7 Q. Didn't you indicate first there was an
8 initial letter?
9 A. From Earl, Blank there was one letter.
10 Q. And then was there a subsequent letter?
11 A. The letter I wrote, yes.
12 Q. Also confirming the financial
13 relationship?
14 A. No.
15 Q. What's the other letter?
16 A. The other letter is my report which
17 fulfills that contract.
18 Q. You are saying in your files, you did not
19 have the initial contract within your files?
20 A. No, I didn't see it when I went through
21 the file.
22 MR. LOREDO: Will you provide a copy of
23 the initial contract?
24 MR. BLANK: I think we are still waiting
25 on a ruling from the hearing officer as to whether
126
1 those contracts are privileged or not. Frankly, I
2 don't have a problem with it, and I can get you a
3 copy of it.
4 MR. LOREDO: Okay.
5 Do you have a privilege list?
6 MR. BLANK: We will have, yes.
7 MR. LOREDO: So from that response, I
8 assume it is not done yet?
9 MR. BLANK: Correct.
10 MR. LOREDO: When do you intend to provide
11 it to us?
12 MR. BLANK: Within the next three or four
13 days.
14 MR. LOREDO: As of this time, is the
15 initial contract on there, do you know?
16 MR. BLANK: I believe it is.
17 BY MR. LOREDO:
18 Q. Doctor, what is your recollection of the
19 terms of the initial contract?
20 A. The terms of the initial contract was that
21 I would provide a review of selected parts of the
22 SWIM Plan, as I indicated, in particular appendix E,
23 which I think we have identified.
24 Q. Where is the report, then, that stemmed
25 from your review?
127
1 A. It is in a letter to Peeples, Earl &
2 Blank, the previous name of Earl, Blank, Kavanaugh &
3 Stotts.
4 Q. I can represent to you it wasn't provided
5 to us.
6 Counsel, is there a reason we didn't get
7 the document, the letter prepared by Dr. Lettenmaier
8 of his review of appendix E, and also some of the
9 assessments of the Everglades National Park water
10 trends?
11 MR. BLANK: I think it is on our privilege
12 list, if it is what I think it is --
13 THE WITNESS: It is one of the letters I
14 provided. I believe you indicated those were
15 privileged documents.
16 MR. LOREDO: You are shaking your head,
17 meaning it is on the privilege list?
18 MR. BLANK: It is on the privilege list.
19 MR. FITZGERALD: If I may for a moment,
20 counsel, the designation of testimony of this witness
21 states that the subject matter of expected testimony
22 is statistics, phosphorus concentration limits, water
23 quantity and quality trends, STA design and modeling,
24 QA/QC database.
25 Analysis of SWIM Plan's phosphorus
128
1 concentration limits, water quality trends, analysis
2 of SWIM Plan water quantity and quality issues,
3 statistical analysis of database, review of other
4 consultants and experts analyses.
5 I find it very difficult to understand
6 based on what the witness has said describing his
7 initial work and what it focused on, how that
8 letter-report is not germane to the work that he has
9 done and how it does not fall in the scope of the
10 subpoena DT that was served.
11 This appears to be another instance where
12 your firm has arbitrarily held back improperly a
13 document prepared by a witness, and I reference now
14 documents held back and only discovered during the
15 course of Dr. Millard's deposition that are directly
16 to the point of the subject matter of his expected
17 testimony as designated by the Sugar Cane League and
18 U.S. Sugar Corporation in pleadings to the hearing
19 officer filed 2, February 1994.
20 If you are saying you are holding that
21 back as privileged, I believe we need to get the
22 hearing officer, and I understand he may be available
23 today, and perhaps we can get him to rule on this and
24 settle it, because it becomes impossible for us to
25 conduct effective discovery with a hearing date of
129
1 only a month and a half approximately away.
2 MR. BLANK: I will be happy to take a look
3 at it again and see.
4 MR. FITZGERALD: I appreciate that,
5 counsel, but it is not good enough.
6 As you did in the Millard deposition, you
7 showed up with a privilege list printed out in hand,
8 which we still have not received despite the
9 assurances at that depo that we would have it in
10 three or four days, just as you have said today. It
11 simply is not good enough to hold back a document to
12 some nebulous future determination.
13 MR. BLANK: I have yet to see a privilege
14 list from your side of the table.
15 MR. FITZGERALD: Are you awaiting any
16 privilege list from any witnesses I have handled?
17 MR. BLANK: I'm not certain. Certainly I
18 am from Ms. Ponzoli who handled it.
19 MR. FITZGERALD: You will have to take
20 that up with counsel who handled it, not me.
21 MR. BLANK: Ms. Ponzoli stated on the
22 record in the Jones' deposition that she was not
23 going to release privilege lists for her witnesses
24 until there was an understanding among counsel as to
25 when all privilege lists were going to be released.
130
1 MR. FITZGERALD: That deposition, as I
2 recall, was before Dr. Millard's?
3 MR. BLANK: No, I don't think so. I'm not
4 certain, I am losing track of time these days. But
5 frankly, counsel, I don't have a problem with Dr.
6 Lettenmaier's initial letter. If you are really
7 interested in it, I will give you a copy of it. As a
8 matter of fact, I will have one faxed over here.
9 MR. FITZGERALD: I appreciate that. I
10 think we are entitled to it. My concern is that we
11 only get these things when we discover at the
12 deposition that they exist.
13 And the documents that you provided in the
14 midst of Millard's deposition were clearly not
15 privileged either, and you are holding back documents
16 that there's no legitimate claim to privilege on.
17 MR. BLANK: I disagree with that.
18 MR. FITZGERALD: It seems to me that if
19 you felt they in fact were privileged, you probably
20 wouldn't have given them to us during the deposition
21 although I understand other factors can enter into
22 that.
23 MR. BLANK: Certainly.
24 MR. FITZGERALD: I would like to know what
25 claim of privilege you are interposing with regard to
131
1 the documents described by the witness.
2 MR. BLANK: I just told you I would give
3 them to you. It is real a moot issue.
4 MR. FITZGERALD: No, it is not moot when
5 you are not giving them to us in advance. It has to
6 be dragged out of the witness that the thing exists,
7 and it is germane. I want to know if you had
8 intended as you did just now to hold that back as
9 privileged, what privilege were you asserting?
10 MR. BLANK: Attorney work product.
11 MR. FITZGERALD: On a report that goes
12 directly to the testimony of the witness?
13 MR. BLANK: It is not a report.
14 MR. FITZGERALD: He describes it as a
15 "letter-letter."
16 MR. BLANK: That's the designation of it,
17 yes.
18 MR. FITZGERALD: I am willing to accept
19 the witness's characterization of it, and I would
20 like to see it, and if you can have it faxed over, I
21 think that's appropriate so the questioner has an
22 adequate opportunity to review it.
23 Would you please mark this segment of the
24 transcript for expedited going back to counsel's
25 question where he began to say we have not received
132
1 this particular report -- actually go back to the
2 witness's answer that he prepared a letter report in
3 response.
4 MR. LOREDO: It would make our lives a lot
5 easier if documents were provided on a timely basis.
6 You may or may not recall that the deposition
7 required that we receive all documents at least three
8 weeks in advance to allow us an opportunity to review
9 them.
10 When we receive a document the day or
11 during the deposition, it means more time for us to
12 analyze and keep you here longer to ask you
13 questions. That's why we go through this long
14 dissertation of producing documents, it makes it more
15 difficult for us now.
16 But, counsel, you will try to fax a copy
17 over?
18 MR. BLANK: Yes, if you want to take a
19 break, I will call over and see if we can get it done
20 now?
21 MR. LOREDO: Let's take a five-minute
22 break now.
23 (Recess)
24 BY MR. LOREDO:
25 Q. We will just move along and hope to
133
1 receive the facsimile from your secretary.
2 Do you recall some of the results or what
3 the comments were in review?
4 A. It will be a lot easier if you get your
5 hands on the thing to ask me specifics because I
6 don't remember. I can tell you in a very general
7 sense, and that's what I already said, that I did
8 perceive that there was some problems with the
9 statistical analysis and issues with the relatively
10 small -- not relatively, the small number of samples
11 on which some of the statistical models had been
12 structured.
13 Q. Let's move on then.
14 No. 3 of the subpoena duces tecum requires
15 that you provide us with all the documents, reports,
16 memos, letters reflecting, containing or relating to
17 your opinions, conclusions or expected testimony in
18 statistics, phosphorus concentration limits, water
19 quantity and quality trends, STA design and modeling,
20 QA/QC database.
21 Do you have any such reports or memos that
22 you relied on?
23 A. Most of the work I have done is in
24 computer form on the media provided you. The others
25 were contained in letters from me to my client which
134
1 have been provided to the client.
2 Q. Your client produced six diskettes. I
3 just want you to take a look at them.
4 A. Yes.
5 Q. Do you recall these diskettes?
6 A. Yes, I recall them.
7 Q. Are you saying all your work is contained
8 in these six diskettes?
9 A. And the UNIX 60-meg tape I provided them
10 and I believe they provided you.
11 Q. That's correct, we did get the "UNI --"
12 what?
13 A. U N I X.
14 Q. We have been provided the UNIX and turned
15 that over to the client so they can read it. We have
16 no capability of reading that.
17 So besides the UNIX and the six diskettes,
18 those are all the computer form of media encompassing
19 your work?
20 A. Yes.
21 Q. I am not such a great whiz with computers,
22 but does the computer itself have other work in its
23 own memory?
24 A. We copied all the files.
25 Q. You copied everything, programs, files?
135
1 A. Programs, files, data, all of it.
2 Q. They are either in the diskettes or UNIX?
3 A. UNIX cartridge tape.
4 Q. How about reports that you relied upon,
5 tell me what you went through documentationwise in
6 preparing for your analysis, what did you actually
7 look at?
8 A. There are boxes of reports which were
9 summarized on the list prepared for the prior
10 deposition which never occurred; included certainly
11 was the SWIM Plan; included were reports from one of
12 the Justice Department consultants, William Walker;
13 included were reports from one of the District's
14 consultants, Reddy at the University of Florida; and
15 then there may well be others.
16 Q. I will try to probe your memory more. I
17 would like to try to get as complete a list as
18 possible of everything you looked at. Take your
19 time.
20 A. Well --
21 MR. BLANK: You are interested in
22 everything he has looked at?
23 MR. LOREDO: Yes, I am. I want to know
24 everything. No. 3 of the subpoena asks everything he
25 looked at to rely on.
136
1 MR. BLANK: That's a different issue.
2 MR. LOREDO: I will cover everything.
3 No. 4 asks for everything he did rely on. Obviously
4 I am very enthused and want to know what he didn't
5 rely on because there may be stuff that I would like
6 to rely on.
7 So I want to know everything he looked at.
8 THE WITNESS: If you saw my office, you
9 would understand the nature of the complication here.
10 There's a mountain of stuff that's accumulated from
11 this project, and that mountain was inventoried for
12 the prior deposition.
13 MR. LOREDO: Well, counsel, I do think an
14 inventory of everything you looked at is responsive
15 to what I asked for.
16 MR. BLANK: If you think it is contained
17 in that prior list, can you get that?
18 THE WITNESS: Everything that meets his
19 categorization up to the point that that list is
20 prepared is yes, and we can supplement with whatever
21 has accumulated since then.
22 MR. LOREDO: When can we get this list?
23 MR. BLANK: Probably today.
24 MR. LOREDO: We are going to have that
25 secretary running around, aren't we?
137
1 It would probably make it a lot easier,
2 otherwise I will sit here and ask him to probe his
3 mind for everything he looked at, and I will skip
4 over and go back later with the list.
5 Do you want to take a minute?
6 MR. BLANK: Yes.
7 (Recess)
8 BY MR. LOREDO:
9 Q. Let's plug along while we are waiting for
10 facsimiles from your office, Mr. Blank.
11 You had told me that some of the documents
12 relied on in your opinion was the SWIM Plan itself?
13 A. Yes.
14 Q. The report from Walker, the report from
15 Reddy?
16 A. There are multiple reports from Walker and
17 I believe there are multiple reports from Reddy
18 dealing with the same general topic which is the
19 phosphorus core data.
20 Q. When you say rely upon it, did you just
21 use the data and did your own analysis?
22 A. In which case?
23 Q. Let's start with the SWIM Plan.
24 A. The SWIM Plan, essentially I reviewed what
25 was done there and critiqued that, information that
138
1 you are getting a copy of. That was the use of that
2 report.
3 Q. Let me ask you, when did you receive the
4 SWIM Plan?
5 A. Oh, that would have been the first thing I
6 was provided; exactly when, I'm not sure, but
7 probably shortly following the meeting in DC.
8 Q. Do you remember if you received the whole
9 SWIM Plan or just appendix E?
10 A. No, I don't remember.
11 Q. How about reports from Walker?
12 A. There are multiple reports from Walker,
13 the first of which was probably his Everglades trend
14 work, and that would have been either at or near the
15 beginning, and there were other reports provided
16 having to do with STA performances, assessment and
17 design.
18 Q. So you didn't receive them all at once,
19 you received them --
20 A. I received reports, I get Fed-Ex packages
21 about every two weeks or so. They dribbled in over
22 the entire period of time I have been working on the
23 project.
24 Q. Your inventory list that we are getting
25 should probably detail that?
139
1 A. Well, it details up through about a year
2 to nine months ago.
3 Q. Let's see how your memory is from a year
4 to nine months ago.
5 What have you received in terms of
6 documentation in any form, either computerwise or
7 notes or anything in the last year and nine months?
8 A. Where do you want to start?
9 Q. Either way, you can start me a year ago
10 and go forward or start me with the most recent and
11 work your way back, whatever is easier for you.
12 A. Among the most recent stuff, I received a
13 report I think dated November 15th, '93, from Walker,
14 looking at performance assessment of STAs; I received
15 some work dated more recently than that from Burns
16 and McDonnell on STA design, and that I think is
17 dated '94, so it is very recent.
18 Q. Maybe I can help you a little bit.
19 A. I received computer files of Walker's
20 which I believe were turned over as part of the
21 discovery process which contain -- and possibly from
22 an earlier deposition -- which contain, amongst many
23 other things, all of his files, computer files used;
24 as near as I can tell, all of his files used in the
25 Everglades Park print analysis. I received those
140
1 fairly recently.
2 Q. What did you do with those computer files?
3 A. Those files of Walker's in particular?
4 Q. Yes.
5 A. I went back and did some plotting and some
6 analysis of my own, some graphical analysis to
7 interpret the trends and their relationship to
8 discharge at some of the structures.
9 Q. When you say "plotting," put them on a
10 graph?
11 A. Well, yes, but I did some analysis
12 analyzing the relationship between discharge and
13 concentration and then taking residuals from the
14 discharge concentration relationship in a little bit
15 different manner, in a way that is consistent with
16 our U.S. trend quality work, a little bit different
17 method than the one he used.
18 Q. Is that consistent with U.S. trend quality
19 work?
20 A. There's a paper that we talked about,
21 1991, our national water quality trend analysis. One
22 of the things we did in there was to use a slightly
23 different method of adjusting for flow, adjusting the
24 concentration measurements for flow so that you
25 essentially corrected for any trends that might exist
141
1 in flow.
2 You are looking not at the part of any
3 trend that would be associated with flow, but for
4 whatever trend would be and what's left over. I did
5 the same sort of analysis on the Everglades Park
6 data.
7 Q. You don't recall receiving anything else
8 in the last year -- let me continue on your list for
9 the last nine months to one year, items received,
10 documents, computer files, anything?
11 A. There have been numerous computer files
12 relating to water quality, data and discharge data at
13 the structures which was associated with loading
14 estimates made by the District and others at the
15 structures.
16 Q. Do these computer files come from the
17 District?
18 A. Directly or initially?
19 Q. Well, tell me where these numerous
20 computer files came from.
21 A. Which numerous computer files?
22 Q. Well, you tell me there were a set of
23 computer files from Walker, but then you subsequently
24 stated that you received numerous computer files.
25 I'm not sure, I can't be specific --
142
1 A. You want to talk about the loading ones
2 that I just mentioned?
3 Q. That was the District's?
4 A. No.
5 Q. Okay. Where did the loading ones come
6 from?
7 A. That is mostly initially District data I
8 was provided directly by John Davis's office.
9 Q. Is that ESP?
10 A. Yes.
11 Q. Environmental permitting --
12 A. Environmental Services and Permitting.
13 Q. That was a loading estimates?
14 A. No, they provided me data that were used
15 in the loading, in loading estimates that I made.
16 Q. Are you talking about Loxahatchee?
17 A. The loading estimates are primarily
18 structures having to do with estimates of net loading
19 from EAA.
20 Q. Any particular structure, all the
21 structures?
22 A. The District has an inventory of the
23 structures and a means of calculating the load.
24 Amongst the stations are S-5A, S-6, S-2 -- S-2, S-3,
25 S-7, S-8, and I probably missed a few.
143
1 Q. Did ESP get the data from the District or
2 did they get their season data? I am confused.
3 A. Well, to the best of my understanding,
4 with the exception of entry and access data for the
5 Loxahatchee, all of the data are either collected
6 and/or inventoried by the District.
7 Now, ESP has its own database, but the
8 original sources of data are the District and/or
9 other agencies working under contract to them such as
10 the USGS.
11 Q. So you are saying ESP takes this data and
12 either -- I don't know, what do they do with the data
13 from the District, do they do anything with it?
14 A. They have a database that inventories it.
15 Q. So they input it into a database, I guess
16 whatever a computer does with all this data, and you
17 are provided with the output?
18 A. I have been provided with selected parts
19 of it that I need.
20 Q. Who makes the selection as to what parts
21 you should receive?
22 A. I don't think that's a question that can
23 be answered without being more specific.
24 Q. You said selected data is provided to you
25 from ESP?
144
1 A. Yes -- are we talking about the loading
2 estimates?
3 Q. Yes.
4 A. The loading estimates, it is clear from
5 various reports and so on what the points are that
6 are of interest, and data for those stations were
7 extracted by people at ESP and provided to me.
8 Q. Talk to me about other data, not the
9 loading. What other data has ESP provided you?
10 A. Oh, I have been provided with copies of
11 entry and access data, as well as the historical data
12 within the WCA/1 which is the Loxahatchee.
13 Q. Any other data besides loading, entry and
14 access, historical data from Loxahatchee?
15 A. I have been provided with park data.
16 Q. What kind of data, flows, concentrations,
17 limits and levels?
18 A. Both.
19 Q. Limits and levels?
20 A. I don't know what you mean by "limits;"
21 water stage data, yes. I have been provided with
22 some precipitation data.
23 Q. Concentration data?
24 A. Well, yes, certainly.
25 Q. What areas of the park was this data from?
145
1 A. There are a whole series of stations that
2 were used by Walker in Walker's trend assessment, and
3 I believe I have data for all of those.
4 Q. You told me you got loading at structures
5 in the Everglades agriculture area, EAA.
6 Did you have any other data for the EAA?
7 A. Loads are something that I have both the
8 District's computations of them and my own in order
9 to compute those.
10 Q. You used concentrations to compute loads?
11 A. Yes, and discharge. So I have the raw
12 chemistry data as well as the raw discharge data for
13 all of those stations.
14 Q. Did ESP collect any data on their own and
15 provide it to you?
16 A. Other than entry and access?
17 Q. Other than data taken from the District?
18 A. No, other than entry and access -- you
19 understand what "entry and access" is?
20 Q. Maybe I don't, can you tell me?
21 A. These were data that were collected
22 directly by them under agreement, the terms of which
23 I don't understand in detail, in the Loxahatchee over
24 a period which now extends over one year. Those data
25 were collected directly by them.
146
1 Q. Okay. So other than that data?
2 A. And of data that were provided to me -- I
3 can't speak to all of the data that ESP collected.
4 Q. Provided to you?
5 A. Provided to me that they would have
6 collected directly, I believe the entry and access
7 are the only data.
8 Q. When you refer to "entry and access"?
9 A. That I believe is the term that's used.
10 Q. They are given the ability to go into the
11 Loxahatchee, take data, and do whatever they want
12 with it?
13 A. Yes -- well, I wouldn't agree to the
14 latter characterization, I would not like you putting
15 words in my mouth.
16 Q. I understand.
17 (Pause)
18 Q. You usually receive most of the data on
19 computer files?
20 A. I believe I would be correct in saying
21 exclusively on computer files.
22 Q. Besides receiving data, did you receive
23 other reports -- I am keying you in on the one-year
24 period after or at least where your list is cut off,
25 so I am interested in any reports that you might have
147
1 looked at also.
2 A. I think we started to go through those and
3 I had indicated some.
4 Q. Burns and Walker --
5 A. Burns and McDonnell.
6 Q. Walker's?
7 A. Yes.
8 Q. Reddy's?
9 A. Yes.
10 Q. Any other?
11 A. There certainly were others. I can't
12 remember offhand immediately which ones.
13 Q. Is there a way --
14 A. I think it is reasonably safe to state
15 that if there's been work done that has become
16 publicly available either through stage meetings or
17 other mechanisms such as that, that my client is
18 aware of having to do with those areas that you
19 mentioned, that I had been identified as having
20 expertise in, that they have been provided to me and
21 it probably would be easier for you to question me as
22 to which reports in those areas I might not have seen
23 than those which I have seen.
24 Q. Okay.
25 I just received some facsimiles from Earl
148
1 Blank's office.
2 I want to show you a copy of a facsimile
3 of a letter dated May 20th, 1992. The letter is not
4 signed. Would you take a look at it and tell me --
5 A. That is in fact the letter I wrote, yes.
6 Q. Did you not sign the letter?
7 A. I couldn't really tell you. This one
8 certainly is not signed. If I were to guess, I would
9 say that I provided this copy in preparation of
10 documents over the last few weeks and it was
11 withdrawn from my file. It was not -- it was my copy
12 that was not signed, that they received some signed
13 copy in the past.
14 Q. Did you have different drafts of your
15 letter?
16 A. No, not really, I doubt it.
17 Q. You say that in utmost confidence, when
18 you write a letter --
19 A. When I write a letter, it is done. There
20 would have been a subsequent letter if there was some
21 amendment to that, and I am certain in that case
22 there was not.
23 Q. I will show you a copy of the other fax,
24 and if you can take a look at this, a letter dated
25 April 12th, 1993 to Mr. Blank, and if you could tell
149
1 me what this represents to you?
2 A. Well, this is the letter that I indicated
3 to you that was prepared for the prior deposition
4 which didn't happen.
5 (Pause)
6 MR. LOREDO: Why don't we mark this as
7 Exhibit 3, the April 12th, 1993 letter.
8 (Lettenmaier Exhibit 3 was marked for
9 identification)
10 BY MR. LOREDO:
11 Q. We will go back and talk about reports in
12 various areas, but it is probably a good idea if I go
13 through your list here.
14 This exhibit 3 that we have marked, the
15 April 12th letter, these are all documents and
16 medias, computer medias or what not that you
17 reviewed?
18 A. I think it indicates that was a letter
19 prepared for a deposition which never took place
20 which accompanied magnetic media that were provided
21 as well as documents I had prepared, as well as a
22 list of all the ones I had used. So you have to look
23 at the section there that describes what it is
24 referring to.
25 Q. Okay. I see, I notice you broke them down
150
1 in sections, A 1 and 2?
2 A. Right.
3 Q. The working files of Lisa Dally Wilson?
4 A. Right.
5 Q. What is that?
6 A. You have an updated copy, those disks,
7 simply an earlier version of the disks; now you have
8 the current ones.
9 Q. When you update, does that automatically
10 erase the original data or information?
11 A. No, everything she had as of the date that
12 the disks were made.
13 Q. So we are not substituting data, we are
14 just increasing it?
15 A. In general. I can't tell you for a fact
16 that there might not have been working files
17 somewhere along the line that were overwritten or
18 something else in between, as some analysis was
19 updated, but in general they move forward, so it
20 simply should be an update.
21 Q. They are all contained in the six
22 diskettes?
23 A. Yes.
24 Q. What is LKD stand for?
25 A. Lisa K. Dally, I guess.
151
1 Q. Okay. This is numbered 1 through 6. Is
2 this referring to the six diskettes we have here?
3 A. But they are made a little different way,
4 they are using different backup utilities and so on.
5 So the numbering scheme here is different than the
6 numbering scheme here. I believe there's a summary
7 of how the current set -- or else I can read the
8 front and tell you quickly how they are done now.
9 Q. Can you take a look?
10 A. Sure.
11 The current system is that there were --
12 when you get the specific reports, you will see there
13 are mention made of certain computer programs used in
14 the analysis.
15 Among those were something called Geopack
16 which is one EPA kriging program, and all of the
17 files and so on that were used in that program
18 pertaining to certain reports that you have are on
19 two of these disks.
20 There's another set of programs that were
21 used, something called Geoeas, which is a different
22 EPA kriging program, it was used in a number of the
23 other work that chronologically came later.
24 There are those two sets of disks, and
25 then there are something called SURFER which was used
152
1 in a number of the other analyses, and those files
2 are on these other two disks, and that contains all
3 of the steps that she used in her analysis in which I
4 was involved in also, but those analyses were
5 conducted on her PC and on are on those disks.
6 Q. So you did not conduct any separate
7 analysis yourself?
8 A. Yes, and all of that is on the 60-meg
9 cartridge tape I provided you.
10 Q. Geopack is just a different program than
11 Geoeas?
12 A. Yes.
13 Q. What's the difference?
14 A. Well, in a word, one of them is full of
15 bugs and the other sort of works. In terms of what
16 they actually do, they are both kriging programs
17 that's been put together that are distributed by the
18 Environmental Protection Agency.
19 One of them, Geoeas, was developed at the
20 EPA lab in Las Vegas by people who are EPA employees.
21 The other was developed under contract to them.
22 Geopack, which on the face of it should do
23 some things that are nicer and in a more convenient
24 way, we found was full of bugs, and we wound up
25 giving up on.
153
1 Q. Geoeas is the more current one?
2 A. If you look through the reports, you will
3 see that it indicates when we shifted it and at what
4 point.
5 Q. This refers to two letters that were
6 written to Rick Burges dated May 20th, 1992 and a
7 letter dated February 2nd, 1993.
8 I don't believe I saw a copy of those
9 letters. Do you know what those letters were about?
10 A. Offhand, no.
11 Q. Take a look at working files of Dennis
12 Lettenmaier.
13 A. A 1 through A 5 or A 1? Draft progress
14 letters -- what is the date of the letter that was
15 provided you?
16 Q. May 20th, '92.
17 A. That's one of them, and a letter to you
18 dated 2-93. I don't know what offhand is in those.
19 Draft progress reports dated 1-8-93 and
20 2-26-93, I think you will find you have.
21 Q. I have a copy of the following reports:
22 One dated January 5th -- it said 1992, and then --
23 A. I think that's correct -- '93, is the
24 correct date.
25 Q. It was just a typo and it was corrected
154
1 later?
2 A. Corrected later or marked out by hand. I
3 wasn't working on the project and I didn't do it, so.
4 Q. Another report dated January 8th, 1993?
5 A. Right, that's mentioned here.
6 Q. But it refers to a letter, and I guess
7 what I am trying to get to is the letter?
8 A. No, what it says is progress reports
9 provided to you previously dated 1-8-93, which you
10 got there, 2-26-93, which you have got there, as well
11 as letters, Rick Burges, dated 5-20-92, which you
12 have, and a letter to you dated 2-2-93, which is the
13 only one in question which I don't know what that is.
14 Q. When you say "letter to you"?
15 A. Bob Blank.
16 MR. LOREDO: Do you know, Bob, if this is
17 one of the letters that will come under your
18 privilege list?
19 MR. BLANK: I will have to check and see.
20 BY MR. LOREDO:
21 Q. This would be a letter from Lisa --
22 A. It won't be any letters from Lisa.
23 Q. A letter from yourself?
24 A. Any letters are from me.
25 Q. I don't think I have receive