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 121 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 122 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