599
1 STATE OF FLORIDA
2 DIVISION OF ADMINISTRATIVE HEARINGS
3 ----------------------------------------------------------
4 SUGAR CANE GROWERS COOPERATIVE OF )
5 FLORIDA, et al., )
6 and ) Nos. 92-3038
7 FLORIDA SUGAR CANE LEAGUE, INC; et al., ) 92-3039
8 and ) 92-3040
9 FLORIDA FRUIT AND VEGETABLE ASSOCIATION,) 92-6796
10 LEWIS POPE FARMS, et al., ) 92-6797
11 Petitioners, ) 92-6799
12 vs. ) 92-6800
13 SOUTH FLORIDA WATER MANAGEMENT DISTRICT,)
14 Respondent, )
15 and )
16 MICCOSUKEE TRIBE OF INDIANS, the UNITED )
17 STATES OF AMERICA, et al., )
18 Intervenors. )
19 ----------------------------------------------------------
20 Deposition Upon Oral Examination Of
21 DENNIS P. LETTENMAIER
22 Volume 6, Pages 599 - 746
23 Taken at 1325 4th Avenue, Suite 1740, Seattle, WA
24 DATE: March 31 and April 1, 1994
25 REPORTED BY: Toni L. Christy, RPR, CSR CHRISTL408NM
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1 APPEARANCES:
2 For S. Florida JOSE A. LOREDO, ESQ.
3 Water: Popham Haik
4 100 SE Second Street
5 P.O. Box 019101
6 Miami, Florida 33131
7 For the United THOMAS A.W. FITZGERALD, ESQ.
8 States: Assistant U.S. Attorney
9 Southern District of Florida
10 99 NE 4th Street
11 Miami, Florida 33132
12 For Florida Sugar SCOTT D. LIEBERMAN, ESQ.
13 Cane League & US Earl, Blank, Kavanaugh & Stolts
14 Sugar Corp: One Biscayne Tower, Suite 3636
15 2 South Biscayne Boulevard
16 Miami, Florida 33131
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10 MR. FITZGERALD 685 - 744
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2 7:00 P.M.
3 --------------------------
4 DENNIS P. LETTENMAIER, witness herein, having been
5 duly sworn by the Notary,
6 testified as follows:
7 E X A M I N A T I O N
8 BY MR. LOREDO:
9 Q. Good evening, Doctor, Jose Loredo on behalf
10 of the South Florida Water Management District. Thank
11 you for coming to see us so we can complete our
12 depositions. Have you formulated final opinions from
13 which you're going to testify at the hearing sometime
14 in April 25th of this year?
15 A. I think you need to be a little more
16 specific.
17 Q. I understand that. Why don't I do it this
18 way, Doctor. Why don't you tell me what you've done
19 since the last deposition, February, I believe.
20 Actually we deposed you on March 2nd through the 4th.
21 A. No, not me.
22 Q. March 2nd, 1994 is when we last met, Doctor.
23 A. Time flies when you're having fun. Okay.
24 Q. Let me start with have you received district
25 data and had an opportunity to analyze the district
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1 data that you had stated before that you needed to
2 complete your analysis?
3 A. Which district data are those? The district
4 takes incredible amounts of data.
5 Q. You were waiting for some data with respect
6 to completing some analysis and some of the analysis
7 you were going to try to complete was STA sensitivity,
8 load uncertainty, phosphorus load uncertainty, and you
9 were saying you were waiting for some data, you didn't
10 say what data, and you were going to complete a trend
11 analysis with respect to Everglades National Park, all
12 those things which you stated in your deposition were
13 all pending district data?
14 A. I don't believe that's correct, but the
15 answer with respect to ENP is that I am not certain
16 that I have received all of the data but I have
17 received additional data, yes.
18 Q. What don't you tell me what kind of data you
19 received.
20 A. I received total phosphorus concentrations
21 and discharges on the days on which samples were taken
22 at the 12 structures, possibly S-333, but I'd have to
23 verify that but definitely the 12 structures.
24 Q. Up to what time frame?
25 A. Sometime in 1993.
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1 MR. LIEBERMAN: I will object to form so we
2 can clarify what data.
3 MR. LOREDO: I'm trying to figure out what
4 data.
5 Q. You stated now total phosphorus concentration
6 discharge and the other data with respect to the
7 Everglades National Park --
8 A. The data files consist of total phosphorus
9 concentration discharge and the date on which it was
10 collected for a period of time from the end of William
11 Walker's previous report and analysis, which we were
12 provided copies of, through sometime in 1993, I do not
13 remember precisely, it is mid-1993, I believe.
14 Q. Have you received data from anywhere else,
15 ES&P?
16 A. No, I am sorry, I did not receive the data
17 directly from the district, they are district data, is
18 my knowledge.
19 Q. And I guess with that preface, you're telling
20 me that the data was received through ES&P and then you
21 received it from --
22 MR. LIEBERMAN: Can we clarify for the record
23 what ES&P stands for?
24 Q. ES&P, Environmental Services and Permitting,
25 Gainesville.
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1 Did you talk to anyone there, Mr. John Davis?
2 A. I'm quite certain I talked to John Davis or
3 one of his employees.
4 Q. Did he have any comments regarding the data?
5 A. I believe the comments were limited to the
6 form of the computer files.
7 Q. Did you receive this in sketch, the data?
8 A. 3 1/2 inch DOS disks.
9 Q. How many disks?
10 A. You ask difficult questions. Now, I think it
11 was all on one.
12 Q. That's a difficult question?
13 Have you received any reports since your
14 deposition back on March 4th of '94 from any
15 consultants or anyone working in the Everglade
16 litigation?
17 MR. LIEBERMAN: Object to form.
18 A. I guess I'd like some definition as to what
19 constitutes a report. Are we talking about a bound
20 document, for instance, which is what I would commonly
21 consider a report to be?
22 Q. What I'm trying to ascertain is I basically
23 want to take you from March 4th to today and see what
24 you've received and used for your opinion, what you
25 relied on or what you reviewed, and I hope to see what
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1 you've been able to do in the last month and what kind
2 of work you've done.
3 A. Sure, sure, I understand.
4 Q. So in terms of reports or documents if you
5 can kind of take me through what you received.
6 A. I certainly don't want to mislead you and
7 have somebody come back and say later on, "But, yes,
8 you were sent this, this and this and you said you
9 didn't receive any," and so on. I know for a fact
10 right now there are two unopened Fed Ex packages on my
11 desk. One is from, I believe, Earl & Blank and the
12 other is from ES&P and I didn't have a chance to open
13 them.
14 MR. FITZGERALD: You understand that counsel
15 is probably going to tell you not to open those and not
16 to rely on those because since we're concluding your
17 deposition you're not allowed to form any more
18 opinions?
19 MR. LIEBERMAN: For the record, counsel will
20 not remotely stipulate to that.
21 A. That being the case and with the
22 understanding that these are bound reports, I'm not
23 aware of any that I've received, that I have received
24 and opened or are even aware of what they might be.
25 Q. How about any documents or letters?
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1 A. Oh, letters, I mean, I have a letter
2 announcing this deposition.
3 Q. That's a good start.
4 A. However, I received no notice of deposition,
5 I might point out.
6 Q. I'm sure your counsel did.
7 A. Perhaps they did, I mean, I received a note
8 from them as to where it would be.
9 Q. Anything else you can recollect that you
10 received?
11 A. Are we talking anything I received having to
12 do with --
13 Q. The Everglades.
14 A. All with the Everglades?
15 Q. I'm just asking you to go from March.
16 A. I received from Steve Millard a thick stack
17 of papers.
18 Q. Do you know what those thick stack of papers
19 are?
20 A. I don't know in detail what's in them. I
21 know what the general content and purpose of them was.
22 Q. Have you had an opportunity to review them?
23 A. No.
24 Q. Do you intend to review them?
25 A. No.
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1 Q. Is that because you don't merit -- don't
2 think the work merits your review?
3 A. No.
4 Q. Is there any reason why you don't have an
5 intention to review it?
6 A. I have a lot of other things to do, and those
7 papers were for the express purpose of going for
8 outside review to a qualified statistician. I didn't
9 see, given the demands of my time, there would be a
10 point to spending my time reviewing thick volumes of
11 material that was going to be reviewed by somebody else
12 with that expertise anyway.
13 Q. Who was that someone else?
14 A. Dr. Paul Switzer, Stanford University.
15 Q. From Mr. Millard you received a stack of
16 papers. Did you receive any disks, also?
17 A. To my knowledge, no, during the specified
18 time period. Again, I would not guarantee that but I
19 cannot recollect at this time that I received any
20 magnetic media from Dr. Millard since March 2nd.
21 Q. So from your recollection all we're talking
22 about is a stack of papers which represents his report
23 in some fashion?
24 A. Apparently. Again, I did not look at it.
25 Q. Was there a --
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1 A. There was a cover letter which indicated it
2 was review materials being sent to Dr. Switzer. I
3 could not see, given the volume of stuff there, that I
4 would be able to or that it would be a good use of my
5 time at this point to review that myself.
6 Q. Did you read the letter?
7 A. Glanced at it. I wouldn't be able to recall
8 the exact contents, but I think it was very short of
9 "here are the materials we discussed," or something
10 along those lines.
11 Q. Do you know how Dr. Paul Switzer was chosen
12 to review this work, did you have any input there?
13 MR. LIEBERMAN: Object to form.
14 A. I may have, I do not recall exactly.
15 Q. When you say you may have, do you know Dr.
16 Paul Switzer?
17 A. Yes.
18 Q. How do you know him?
19 A. I've met him at a conference a number of
20 times some years ago, and I continue to bump into him
21 at conferences here and there.
22 Q. Is he a statistician?
23 A. Yes.
24 Q. Do you know what the purpose of sending Dr.
25 Millard's work to Mr. Switzer for his review is?
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1 A. I expect it was to have an independent peer
2 review of the work.
3 Q. Did you think about using Dr. Hughes?
4 A. Did I?
5 Q. Yes.
6 A. I don't understand the question.
7 Q. Well, I'm wondering whether or not Dr. Hughes
8 came into your mind as someone that could give an
9 independent review of Dr. Millard's work?
10 A. You're somehow implying that I was picking
11 reviewers.
12 Q. I understand what you're saying. Did you at
13 any point advise Mr. Millard to use Mr. Hughes or give
14 any advice to use Mr. Hughes as a peer reviewer or
15 reviewer of the work?
16 A. I don't believe so.
17 Q. I guess this goes back, you don't recollect
18 whether you were the person that decided to use Paul
19 Switzer, you don't recollect whether or not you told
20 Millard to use Mr. Switzer or not?
21 A. I don't recall that.
22 Q. Is it possible that you told Dr. Millard to
23 use Dr. Switzer?
24 A. I'm absolutely certain that I didn't tell Dr.
25 Millard anything of that nature.
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1 Q. I guess what I get from this is you might
2 have mentioned to Dr. Millard in some of your
3 discussions that Dr. Switzer could be someone to review
4 anything down the line. I'm trying to see what the
5 connection is or if there was a possibility of Dr.
6 Millard getting Dr. Switzer's name from you or if he
7 independently got it from himself?
8 A. Dr. Switzer is a leading name in the field
9 and any competent statistician would recognize that
10 name. It certainly would not be left to me to call to
11 their attention to the credentials of Paul Switzer.
12 Q. Have you talked to Dr. Switzer in the last
13 month?
14 A. No.
15 Q. In the last year?
16 MR. LIEBERMAN: Are you asking just generally
17 has he spoken with him?
18 MR. LOREDO: Yes.
19 A. Any contact with him, no.
20 Q. Have you sent anything to Dr. Millard to
21 review in the last month?
22 A. No.
23 Q. Have you received Dr. Marin's work regarding
24 the STA analysis?
25 A. No.
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1 Q. Do you still intend to review Dr. Marin's
2 work and offer an opinion as to that?
3 A. That is a decision that is up to counsel.
4 MR. LIEBERMAN: Can I just state, are you
5 talking only within the last month? Because Dr.
6 Lettenmaier has in the past reviewed things that he has
7 commented on.
8 THE WITNESS: But that in fact is in the
9 transcription of the other testimony.
10 MR. LOREDO: You weren't at the last
11 deposition, Scott, and during the last deposition Dr.
12 Lettenmaier had reviewed some of Dr. Marin's work. He
13 also said in the deposition that he could possibly be
14 reviewing his work as to the STA sensitivity.
15 Q. Which is work that you also performed that
16 you prepared a report on, also, and I guess you were
17 going to compare work and also just offer a review
18 analysis of that work.
19 A. That's correct.
20 Q. While we're talking about the STA analysis
21 sensitivity, have you done any further work with
22 respect to that?
23 A. Yes.
24 Q. Just to cover all bases, have you had
25 discussions with any consultants or other parties,
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1 other than your attorneys in this matter, since March,
2 regarding this litigation? And what I'm trying to find
3 out is everyone you talked to.
4 MR. LIEBERMAN: Object to form. You can
5 answer, if you understand.
6 A. You're asking if I've had any discussions
7 with any other consultants about the case since -- yes.
8 Q. Since March?
9 A. Yes.
10 Q. You've told me about John Davis, possibly
11 maybe someone else at the ES&P. Have you talked to Dr.
12 Millard?
13 A. Yes.
14 Q. And what were the substance of those
15 discussions?
16 A. Since March, I believe the discussions have
17 been limited to issues having to do with data transfer.
18 Q. What do you mean by "data transfer"?
19 A. I believe we discussed at the last deposition
20 his use of some of the krigging bathymetry and soil
21 phosphorus data.
22 Q. When you say "data transfer," you mean you
23 provided him your krigging work so he can --
24 A. Indirectly the data went to ES&P.
25 Q. Are we talking about the output from the
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1 krigging work?
2 A. The output, the results of our analysis.
3 Q. So you've provided the results of the
4 krigging analysis to John Davis at ES&P?
5 A. Yes.
6 Q. And you believe that work was then provided
7 to Dr. Millard?
8 A. I believe so.
9 Q. And you had a discussion with Dr. Millard
10 regarding that work?
11 A. Yes.
12 Q. Do you know if Dr. Millard was going to try
13 to use that work as analysis with cattails?
14 A. Yes.
15 Q. Can you tell me what your discussions were
16 with Dr. Millard regarding this issue?
17 A. I think we discussed some of these before.
18 MR. LIEBERMAN: I just want to object to the
19 point that counsel may want to envoke privilege over
20 certain communications between consultants if they were
21 in the presence of attorneys because you're talking
22 very generally and not discussing which meeting or
23 which conversation you're talking about, so I want to
24 remind you --
25 MR. FITZGERALD: Counsel, are you asserting a
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1 privilege for every communication between the
2 consultants just because an attorney happened to be
3 there?
4 MR. LIEBERMAN: No, that's why I stated
5 that. But if there were an attorney present regarding
6 trial preparation at the direction of counsel, those we
7 would maintain a privilege over where counsel was
8 present, meetings directed by counsel, for counsel and
9 other --
10 THE WITNESS: These were not in the presence
11 of counsel regarding the data.
12 MR. LOREDO: We don't have to address
13 counsel's argument now but we may later.
14 Q. Let me just cut to the chase here. We
15 deposed Dr. Millard yesterday, and I believe he's
16 dropped his analysis regarding cattails and the use of
17 the krigging work to try to develop any relationship
18 between cattails, water depth and soil phosphorus. Do
19 you know that to be true?
20 A. Sounds like you have more recent and better
21 information than I do since he and you were in Miami
22 yesterday and I was here.
23 Q. Well, did you have any discussions with Dr.
24 Millard to that respect?
25 A. No.
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1 Q. You don't know, then, that Dr. Millard
2 doesn't plan to do further work into that area?
3 A. I am not aware of whether he does or does
4 not.
5 Q. Do you know what he wanted your analysis for,
6 the krigging work, what the purpose of it was, what he
7 was going to do? Do you know what Dr. Millard's
8 intentions were with the use of your krigging analysis
9 of WCA-2A?
10 A. I know in a general sense.
11 Q. Tell us your understanding.
12 A. In a general sense, the phosphorus data were
13 to be used in a comparison of vegetation phosphorus and
14 certain characteristics of hydroperiod.
15 Q. Do you know what problems he ran into, did he
16 discuss any problems with you?
17 A. No.
18 Q. Will you try to continue analysis of using
19 your krigging work and join in with the vegetation
20 analysis and cattails?
21 A. I doubt it, given the time constraints, but I
22 couldn't commit to that absolutely.
23 Q. I guess you're saying if counsel asks you to?
24 A. Perhaps you have information that is more
25 current than mine.
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1 Q. You didn't have an opportunity to speak to
2 Dr. Millard in the last few days?
3 A. No, he's been in Miami, and I said hello to
4 him.
5 Q. You guys have figured us out. If you talk to
6 someone, we're going to make you tell us.
7 A. That's usually not been a problem for me.
8 Q. Maybe you can educate me, what use is your
9 krigging work in WCA-2A other than telling us what the
10 spatial interpolation of the phosphorus within the
11 WCA-2A -- well, you made a face, let me back up.
12 You've done a krigging analysis which is
13 basically a spatial interpolation which shows the grid
14 of the phosphorus contents within WCA-2A. Is that a
15 correct statement?
16 A. Yes.
17 Q. What are you going to do with that now? Do
18 you have any intentions of doing further work with
19 that?
20 MR. LIEBERMAN: Object to form.
21 A. I do not have current plans or have not been
22 asked to carry out additional analyses, that was
23 essentially a derived product that we were asked to
24 produce.
25 Q. Dry product?
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1 A. Derived product from the raw samples.
2 Q. What do you mean by "derived product"?
3 What's the significance of that terminology?
4 A. I think we discussed the nature of krigging
5 at some length in the previous deposition, that it's a
6 spatial interpolator, so that you've mentioned values
7 being produced on a grid of some spacing, that the raw
8 data are clearly collected at some finite notch points
9 as a derived product that is a spatial field that is
10 interpolated from the raw data.
11 Q. Does that support any opinions you have for
12 this case? I'm trying to figure out the next step.
13 What kind of testimony from that analysis -- other than
14 showing a grid of the phosphorus within the WCA-2A, is
15 there anything else to that? Do you understand my
16 question?
17 A. That I've been asked to prepare?
18 Q. Asked to prepare or -- yes.
19 A. You have the earlier reports that show the
20 extent of the area enclosed within certain contours.
21 Q. And that's basically what it stands for
22 then? I'm trying to figure out if there's anything
23 else to it that you're trying to prove.
24 A. I've indicated that you have a derived data
25 product which essentially are spatial maps of
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1 phosphorus, and particularly all this discussion has
2 been implicitly about 10 centimeter core data because
3 there were other data that we talked about at the
4 previous deposition, so one aspect is the spatial field
5 itself, then in the reports you have and that we
6 discussed at the previous deposition there were some
7 interpretations of that.
8 Q. At this point in time do you plan to update
9 your analysis with respect to the krigging of the
10 phosphorus within the WCA-2A?
11 A. Not unless we were provided more data or data
12 of which I'm unaware were to somehow become available.
13 Q. Have you talked to any other consultants or
14 parties involved in this case other than counsel since
15 your deposition on March 4th regarding the case?
16 A. Yes.
17 Q. Who else?
18 A. Curtis Richardson.
19 Q. And can you tell me what the substance of
20 those conversations or conversation was?
21 A. One of the aspects was regarding one of the
22 issues that had been left unresolved at the previous
23 deposition having to do with the bulk density in the 10
24 centimeter core data.
25 Q. Your last deposition you indicated that John
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1 Davis was going to try to find out why we had these
2 inconsistent bulk density estimates. Were you able to
3 resolve that?
4 A. Yes, I believe so.
5 Q. Tell us how it was resolved.
6 A. Through discussions with John and with Curtis
7 Richardson.
8 Q. And what was the outcome?
9 A. It's my -- it's now my opinion that the 10
10 centimeter data set shouldn't be compared directly and
11 shouldn't be pooled.
12 Q. Shouldn't be pooled with Dr. Reddy's data?
13 A. There are at least three sources of which I'm
14 aware of 10 centimeter or nearly 10 centimeter total
15 phosphorus data for WCA-2A.
16 Q. And who are they?
17 A. Reddy, Richardson and Patrick.
18 Q. So now you're of the opinion that you should
19 not pool those data?
20 A. That's correct.
21 Q. And I think -- I'm going to show you
22 Exhibit-6 which was marked in your previous deposition.
23 You said once you had resolved the inconsistency
24 between the bulk density estimates you would redo the
25 analysis which has been marked as Exhibit-6 entitled
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1 "Estimation of WCA-2A Sediment Phosphorus Deposition."
2 Have you redone the analysis?
3 A. I'm not sure "redone" is the appropriate
4 word.
5 Q. Modified?
6 A. I'm not sure that's true, either. Let me
7 clarify. There are several sets of krigging estimates
8 that have been done, either with pooled data or
9 without, with the Reddy data alone.
10 Whether or not the Reddy data alone had been
11 done prior to that comment in that report, and I
12 believe they had, I'm not absolutely certain. I
13 believe the comment you have referred to perhaps
14 anticipated that if the inconsistency were revolved
15 that it might be appropriate to then pool the data.
16 We've since decided, as I've indicated, that I in
17 particular do not believe that's appropriate.
18 Q. Why not?
19 A. Because there is an uncertainty as to the
20 measurement of the phosphorus core depth and an
21 apparent inconsistency in that measurement between the
22 different investigators, and it is not now clear that
23 there is a definitive way of resolving that so that the
24 samples might be adjusted.
25 Q. So it's a comparability issue?
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1 A. Absolutely.
2 Q. Does that change your opinion in any way in
3 not pooling the data?
4 A. I don't believe so. It provides -- it simply
5 identifies which of the several spatial interpolated
6 fields or derived fields that we believe are the most
7 appropriate use.
8 Q. And which is the most appropriate to use?
9 A. I believe the most appropriate one to use is
10 the one based on Dr. Reddy's data, the reason not
11 necessarily having to do with any particulars of his
12 sampling analysis being better or worse than the
13 others, which is not mine to conclude, but based on the
14 fact that his grid covered a larger area than the other
15 ones, hence, results in better spatial estimates.
16 Q. He had more sampling sites?
17 A. Yes.
18 Q. Now, if I recall, krigging should only be
19 used if you have at least 30, at least that's what you
20 testified to in your deposition, 30 sampling sites?
21 A. That is a very rough rule of thumb.
22 Q. If you don't pool the data are you running
23 awry or having problems with that rule of thumb?
24 A. No.
25 Q. Because you have 30 sampling sites by using
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1 Richardson's data?
2 A. No, that's not what I said.
3 Q. I don't want to put words in your mouth but
4 I'm trying to back up now.
5 A. Please don't.
6 Q. Yes, we went through this last time. You
7 feel most comfortable with Reddy's data because he's
8 got more data, is that what it really came down to when
9 you started looking at --
10 A. The issue is not solely more. That's one
11 aspect.
12 Q. What are the other aspects?
13 A. The Reddy data were collected on a relatively
14 uniform grid throughout the WCA-2A.
15 Q. Whereas the Richardson or Patrick was not?
16 A. They were collected generally along transects
17 in one specific area.
18 Q. Any other issues? We've talked about more
19 data, uniform grid. Is there any other reason you
20 believe that the Reddy data set is more appropriate for
21 the krigging work that you did versus looking at the
22 Richardson and the Patrick?
23 A. No, I think I indicated the reason for the
24 preference has to do with relative uniformity of the
25 spatial grid and number of samples.
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1 Q. So do we have three or you have three
2 krigging maps now developed, a grid map for Reddy's
3 data, one for Patrick and one for Richardson?
4 A. Which phosphorus data are we talking about?
5 Q. Soil phosphorus.
6 A. I understand that but there are several soil
7 phosphorus data sets in addition to being labeled by an
8 investigator.
9 Q. Are you talking about the entry and access
10 data with the ES&P?
11 A. No.
12 Q. Can you help me out, what distinctions are
13 you trying to draw here?
14 A. Our discussion has been totally limited to
15 near 10 centimeters and not at all to the dated core
16 data.
17 (Brief recess.)
18 MR. LOREDO: Back on the record.
19 Q. Talking about the krigging work you did, I
20 guess where I have some confusion, Doctor, is now
21 you're not pooling some data. Has that caused any
22 issues with respect to the rule of thumb of using 30
23 sampling sites when looking at the Richardson and
24 Patrick data?
25 A. No.
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1 Q. Why not?
2 A. Because we're not using the Richardson or
3 Patrick data.
4 Q. Okay. Doctor, when you say you're not
5 looking at the Richardson or Patrick data, we're
6 talking about the 10 centimeter, though?
7 A. That's correct.
8 Q. What about the dated core data?
9 A. That is a completely separate issue.
10 Q. Tell me with respect to the dated core data
11 what changes, if any, in your analysis are there, or is
12 there any, are we still pooling data?
13 A. Yes. My opinion is that it is defensible to
14 pool the data, the dated core data, with respect to
15 mass, to a specified point in the core, specifically
16 1964 or various interpolations thereof.
17 Q. So you're not having the same uniform grid
18 problem as with the 10 centimeter data?
19 A. No, that isn't what I said.
20 Q. No, no, I'm trying now to compare, I don't
21 know if even possible, with the 10 centimeter data and
22 using the dated core data, those two separate data
23 analyses, whether there are similar problems with the
24 analyse and I'm taking it there is not, that we're
25 talking about two separate animals?
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1 A. The nature of the issue as regards bulk
2 density, which is why this all started, is completely
3 different to the two.
4 Q. The bulk density relates to the 10 centimeter
5 data set?
6 A. No.
7 Q. You've got me lost now.
8 A. The nature of the issue regarding bulk
9 density is completely different for the 10 centimeter
10 data than it is for the 10 centimeter core data.
11 Q. Tell me how the issue with respect to the
12 dated core data and the 10 centimeter data is --
13 A. Yes, the issue is the same as before, that
14 the issue of compaction has apparently not been handled
15 consistently due to differences in the time of
16 inundation or lack thereof or related variables when
17 the cores were collected, so there is a potential
18 inconsistency in any measurements having to do with
19 depth of core.
20 Q. And how is that resolved, or is it resolved?
21 A. Well, it can be resolved with respect to the
22 dated core data if the variable that is used is
23 phosphorus mass, which does not depend on the depth of
24 core.
25 Q. And how do you know it's not dependent on the
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1 depth of core?
2 A. Well, because the procedure used to determine
3 total phosphorus is a digression procedure. Whether or
4 not the core would stay compacted prior to the
5 laboratory analysis wouldn't make any difference to the
6 result.
7 Q. So compression of the sample is not a problem
8 when working from the C-137 peak?
9 A. I didn't say that.
10 Q. Well, do you agree with that statement?
11 A. No.
12 Q. Why not?
13 A. You would need to qualify it to say with
14 respect to mass.
15 Q. Okay, if I say with respect to mass.
16 A. With respect to mass, that's correct.
17 Q. So have you pooled the Reddy, Richardson and
18 Patrick data, core data and that is the analysis that's
19 in Exhibit-6, or actually not Exhibit-6 --
20 A. I'm not sure which analysis is in Exhibit-6.
21 Q. I believe it was Exhibit-8, if you'll take a
22 quick look at Exhibit-8 from your previous deposition,
23 March of 1994, March 2nd through March 4th of 1994,
24 that analysis, is that unchanged, then?
25 A. Those analyses that are for phosphorus mass
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1 would be unchanged, yes. That is about half of what is
2 in here.
3 Q. Okay. Is the other half about water depth?
4 A. No.
5 Q. Okay. I guess part of it's the 10 centimeter
6 phosphorus data?
7 A. Well, there may be some of that in there but
8 that's not the issue.
9 Q. When you say "half," can you tell me what the
10 other half is?
11 A. The issue we've been discussing for the last
12 15 or 20 minutes has to do with the appropriateness of
13 comparison of different sources of core data with
14 respect to concentration and mass, which are basically
15 the two candidate variables. I've argued that for the
16 dated core data, for the reasons I've indicated, that
17 comparison or pooling of samples for mass shouldn't
18 cause a problem.
19 For concentration, however, it would, because
20 now depth is a variable and we have potential
21 inconsistencies in the data sources.
22 Q. How do you account for the potential of
23 phosphorus diffusion in the data core mass calculation?
24 A. I don't think I understand that question.
25 Q. Okay, I'll repeat it and let me see if I can
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1 break it down. Can you or have you accounted for
2 phosphorus diffusion in the data core mass calculation?
3 A. I guess I'd have to say again, I don't
4 understand what one would mean by "diffusion in the
5 core."
6 Q. I know where the question comes from and I
7 guess the best thing to do here --
8 MR. FITZGERALD: Is wait until my turn?
9 A. I think you want another witness to answer
10 your question.
11 Q. Let me ask you this, and I think I'll be able
12 to work it this way: At your last deposition back in
13 March, you had been given Dr. Reddy's 1994 report?
14 A. 1994.
15 Q. If you reviewed your transcript, you may
16 recall there were really two reports that we were
17 talking about and you had just received one and one was
18 with regard to --
19 A. The only issue there had to do with the
20 krigging software that he'd used as we discussed, as I
21 recall.
22 Q. Dr. Reddy's?
23 A. Yes.
24 Q. So you didn't have an opportunity to see his
25 analysis with respect to diffusion of the phosphorus,
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1 either up or down, within the core?
2 A. I have not read that, but diffusion is not
3 going to be an issue for total mass.
4 Q. Why do you say that?
5 A. Well, whether or not the stuff moves up or
6 down in the core -- well, I'm sorry, one could imagine
7 it being potentially an issue if it went above or below
8 the critical line for the date, I guess. Other than
9 that, if it moved up or down in the core and you're
10 doing total mass, the stuff is still going to be there.
11 Q. And you're concerned if it goes below the
12 1964 --
13 A. Again, I don't want to get beyond -- I have
14 not reviewed that part of the report, and I think your
15 question is getting a bit afield from the particular
16 issues of what we have done, and when you get down to
17 particular issues of the suitability or the
18 representativeness of what is in, say, the core of some
19 particular phenomenon, as opposed to the comparability
20 of two different samples, then you're into something
21 that is getting past my area of expertise.
22 Q. You did look at the krigging analysis of Dr.
23 Reddy's?
24 A. The only thing I looked at there was to see
25 or try to determine what algorithm he had used, and I
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1 think we discussed this in the last deposition.
2 Q. I went over your transcript and I think we
3 stopped when we talked about Dr. Reddy's report because
4 you hadn't really looked at it, so if you can just --
5 A. I don't remember if that was before or after
6 the deposition, and if this occurred after the
7 deposition, then, perhaps this is another document that
8 I received that you might not have been -- that you
9 might have been asking about. I thought that was
10 before the deposition.
11 Q. So you don't recall reviewing anything in the
12 last month regarding Dr. Reddy's work?
13 A. Well, again, we now have this uncertainty as
14 to whether this is in the last month or not, but let me
15 say just to clarify the record that one of the issues
16 that I believe we discussed in the last deposition had
17 to do with the krigging algorithm, and I'm virtually
18 certain we had a rather lengthy discussion about what
19 we thought he had done and how we had attempted to
20 recreate some of his krigging analysis in some of the
21 reports, not in his 1994 reports but in one of the
22 considerably earlier ones, I believe 1992. In order to
23 follow up on that in his '94 report, the one you're
24 indicating, there was specific mention made of the
25 software he had used, and I don't remember the
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1 particular name of the software, there was discussion
2 with Dr. Davis' group in an attempt to retrieve a
3 user's manual for that software.
4 Q. So you don't know if it's SURFER, GEOPACK
5 or --
6 A. No, we are not -- there is specific reference
7 in the report to the specific package he used.
8 Q. So you don't think it's SURFER, GEOPACK or
9 GEOEAS?
10 A. We know it's not.
11 Q. Did you have any opportunity to review the
12 MacDonald material that at our last deposition was
13 sitting next to you and you hadn't had an opportunity
14 to review it?
15 A. I have looked through it. I'm not sure you
16 could characterize the level that I have been through
17 it as a rigorous technical review, but I have looked at
18 the reports, yes.
19 Q. Do you know there are three reports in
20 February 1994?
21 A. Yes.
22 Q. And you've reviewed all three?
23 A. I've looked at all three of them.
24 Q. And I guess you can't give me a rigorous
25 technical analysis of them or summary of them, but do
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1 you have any comments or criticisms that you wish to
2 offer now or would offer during a hearing?
3 MR. LIEBERMAN: Object to form, we just want
4 to -- you might want to clarify this as to which report
5 you're talking about.
6 Q. We'll talk about all three.
7 A. I can't remember the details of which is in
8 which particular report. I do remember that one of the
9 reports has recalculated areas using the William Walker
10 1993 STA model, essentially the STA performance models,
11 and I do remember that another one of the reports has
12 done some review of the loadings in, I believe, the
13 baseline period. I have concerns or my concerns are
14 limited to aspects having to do with -- and I believe I
15 indicated this in the previous deposition, to
16 uncertainty in either the STA required area to achieve
17 a given target or in the uncertainty regarding the
18 performances of the STA's for a particular fixed area,
19 design area, and so there are certain aspects that are
20 of concern to me that are imbedded in those reports.
21 Q. And those uncertainties are expressed in the
22 report that you did titled "Analysis of Uncertainty in
23 STA Area Requirement" which was marked as Exhibit-5,
24 and basically what I'm trying to get to is, is there
25 additional analysis you would wish to add to that
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1 report?
2 A. I believe we talked about some additional
3 analysis that was ongoing at the time of the previous
4 deposition, but I would also point out that this
5 particular report is indicative of my concerns and the
6 nature of the uncertainties but it's not the sole basis
7 for that concern.
8 Q. What other basis is there?
9 A. Well, this particular report is based on one
10 particular proposed design method or design algorithm,
11 which has since undergone several revisions by the
12 district, hence, similar issues apply to the other work
13 and would certainly be expressed by me in testimony,
14 and I would rely on the general nature of the issues
15 and this type of analysis but not necessarily the
16 numbers and particular figures in this report.
17 Q. I understand what you're saying. You had
18 previously testified today that you have done some
19 further STA sensitivity work. Can you tell me what
20 further work you've done?
21 A. Not in particular STA sensitivity work but
22 work that bears on that issue.
23 Q. What type of work?
24 A. I believe we discussed last time some of the
25 issues relating to short-circuiting.
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1 Q. Can you refresh my memory? When you say
2 short-circuiting, I don't recall --
3 A. Sure. The issue has to do with referring a
4 settling rate from an area like WCA-2A where the
5 hydraulic characteristics are not particularly well
6 known.
7 Q. That I remember. I was under the impression
8 when we started the deposition today that you had done
9 further work, additional work since the deposition, is
10 that true?
11 A. Yes.
12 Q. What work did you do?
13 A. I think I just began to indicate that there
14 is some work relating to short-circuiting.
15 Q. What did you do?
16 A. I have initiated -- well, I'm sorry, I have
17 been conducting some work to look at the -- under
18 certain simplifying assumptions, how the settling rate
19 estimate might be affected by variations in hydraulic
20 characteristics of WCA-2A.
21 Q. Which characteristics are you looking at,
22 rain?
23 A. No, I'm looking at variations in
24 concentration and flows laterally across the area.
25 Q. Okay. Are we talking about surface water
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1 concentrations?
2 A. Yes.
3 Q. And can you take me through the steps of what
4 you did?
5 A. The idea is to -- instead of treating the
6 entire area as one large cell, with uniform sheet flow
7 and uniform concentration progressing from an
8 upgradient end to a downgradient end and performing, as
9 suggested by William Walker's suggested March 1993
10 model, to see what the effect on the settling rate
11 estimate would be if the same model were assumed to
12 apply except to cells through which varying amounts of
13 load or flow and concentration, hence, load, were
14 moving.
15 Q. I had it for a little while. Are you telling
16 me you divided up WCA-2A in some format?
17 A. Conceptually, yes.
18 Q. How?
19 A. Basically we simply take a hypothetical
20 example with characteristics essentially similar or
21 identical to the characteristics that have been used in
22 Walker's analyses for WCA-2A and treated it as being
23 some number of cells operating in parallel.
24 Q. How many cells?
25 A. That is something that can be varied.
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1 Presently I'm using ten but the analysis won't be
2 particularly sensitive to that.
3 Q. Does that mean you're accepting Walker's
4 underlying assumptions?
5 A. We're saying if one were to accept those
6 assumptions, what would be the implications of these
7 particular characteristics of certain particular
8 assumptions of his not being met but the other ones,
9 the general form of his model, being correct, but the
10 assumption of sheet flow, uniform flow not being met.
11 Q. Have you completed the analysis?
12 A. I have not completed the analysis, but I have
13 formed an opinion.
14 Q. Can you tell us the opinion?
15 A. The opinion is that the settling rate is
16 rather sensitive to short-circuiting.
17 Q. What does that tell us?
18 A. Well, it tells us that there is a rather
19 significant source of uncertainty that has been
20 underestimated in the work that's been done to date.
21 Q. Such as? What's the main uncertainty,
22 essentially?
23 A. I believe in this particular analysis here,
24 and this being Exhibit-5 --
25 Q. You're learning, Doctor.
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1 A. -- from the previous deposition, that the
2 settling rate was the most critical parameter in the
3 design in terms of the required area, so the nature of
4 this investigation is to try to understand what an
5 appropriate level of variability that might be ascribed
6 to the settling rate in an analysis such as this one
7 is.
8 Q. What kind of variability did you find?
9 A. Well, the variability in the settling rate is
10 determined by the magnitude and characterization of the
11 short-circuiting, which is a hydraulic characteristic.
12 Q. And you're controlling the magnitude of the
13 short-circuiting, are you not?
14 A. In this hypothetical model I can, yes.
15 Q. So if you're doing that, aren't you able to
16 figure out the variability or haven't you figured out
17 some parameters of variability already?
18 A. But the problem is that we don't have the
19 hydraulic data to know what the hydraulic performance
20 of WCA-2A is.
21 Q. Are you telling me you can't complete your
22 analysis until you have hydraulic data?
23 A. What I'm saying is one could do a better job
24 of the analysis if one had detailed hydraulic data, but
25 we can understand how important that data is or is
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1 not. For instance, in the nature of this particular
2 study here, there were certain variables that don't
3 make too much difference, so one would not spend a lot
4 of time going out and trying to get better estimates of
5 certain variables that may not make too much difference
6 to the result.
7 Q. Some of the variables you're talking about
8 might be evapotranspiration, precipitation?
9 A. Transpiration, yes.
10 Q. Would that be one of the variables that
11 aren't sensitive?
12 A. In this model that is not as sensitive a
13 variable as some of the others.
14 Q. And does that same hold true for the
15 additional analysis you've done with the
16 short-circuiting, has it changed?
17 A. Well, no, wait a minute. In the
18 short-circuiting analysis, we are taking the model of
19 Walker's with his parameters, all of those being fixed,
20 with the exception of the lateral variability in
21 concentration and flow, which he does not consider.
22 Those are the two variables that we're focusing on, and
23 how they affect the settling rate.
24 Q. You've isolated concentration and flow, I
25 guess those are a factor in the settling rate
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1 themselves?
2 A. Those are going to affect -- if those vary
3 laterally and are not constant, those are going to
4 affect the inferred settling rate, yes.
5 Q. And I think your testimony from your prior
6 deposition is you couldn't find a relationship between
7 concentration and flow?
8 A. That is a completely separate issue and a
9 completely different context.
10 Q. Are you saying, then, if the relationship
11 between concentration and flow is not linear -- or can
12 I say "constant" being the same as "linear"?
13 A. No, you have me a little confused, but --
14 Q. I think you've just testified that if the
15 concentration and flow were constant --
16 A. Laterally.
17 Q. You mean coming down from the higher gradient
18 to the lower gradient?
19 A. No, no, if one has -- we had a picture of
20 WCA-2A.
21 Q. I think we do, hold on.
22 A. Good.
23 MR. FITZGERALD: For the record we might want
24 to say we're looking at the district standard schematic
25 map of the WCA-2A.
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1 A. Actually it's probably in one of these
2 exhibits, but, okay, the general idea, the water is
3 coming through the ten structures here (indicating) and
4 is moving essentially like this (indicating), if one
5 conceptualizes that basically as a rectangle where
6 there's water coming in from the top and moving down
7 across here, which is more or less what Walker does in
8 his analysis.
9 Q. Like a plug flow?
10 A. I always have difficulty remembering the
11 difference between plug flow and uniformly continuously
12 tank reactor -- but plug flow is the correct one of
13 those two approximations. Then his assumption
14 basically is that this stuff implicitly comes in and
15 moves down like that (indicating), certain things
16 happen to it, phosphorus disappears when it gets down
17 here, by comparing certain characteristics here and
18 here (indicating), one can then infer what the settling
19 rate was.
20 Q. When you say "here," you're saying from the
21 outflow versus what's coming in?
22 A. Yes, yes.
23 Q. Just kind of the mass balance approach that
24 he looks at?
25 A. Essentially, yes, how much fell out, and you
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1 have an equation related to the certain characteristics
2 of what's coming in, how the stuff should be going in,
3 and then you back in to what the K must have been to
4 get these concentrations down here, and that analysis
5 can and has been done in several different ways with
6 respect to both water column and sediment
7 concentrations.
8 Regardless of how it's done, you're right, it
9 is essentially mass balance with the dynamic equation
10 that says how the stuff settles out. All I'm saying in
11 terms of variability is if one takes this now
12 conceptualized rectangle and splits it into a number of
13 thinner rectangles and say across here there is some
14 variation in flow and concentration (indicating), such
15 that the total amount of load is the same as what he is
16 assuming, then how does that affect the settling rate
17 estimate.
18 Q. How were you able to do that with the data?
19 I'm trying to conceptualize --
20 A. The data has been used indirectly insofar as
21 they have been characterized by him i.e., in terms of
22 the loads going in and so on. Again, we have assumed
23 his model.
24 Q. So each cell is equally divisible?
25 A. In each cell his model is assumed to apply,
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1 so that his model says that if you know the load that
2 is going in and you know the flow, which is the same as
3 knowing the concentration and the flow, and you know
4 the evapotranspiration and the precipitation and so on,
5 all of which we have taken his numbers for, then you
6 can determine what the concentration should be at the
7 lower end.
8 His model applies to treating the entire area
9 as one effective block so one gets one estimate of K
10 from doing that. One gets a different estimate of K if
11 you assume that there is a separate value of K that
12 applies to each of these cells through which some of
13 which there are higher flows and some of which there
14 are lower.
15 Q. How are you accounting for different flows in
16 the different cells to come up with a different -- I
17 almost think it's like in a simplistic look you've
18 taken his analysis, cut it into ten pieces, I should
19 get the same result but in ten different pieces on the
20 bottom, and it seems that you're either -- something is
21 happening to the equation to change either flow or
22 concentrations within the cells?
23 MR. LIEBERMAN: Object to form.
24 A. Well, let me just -- for your edification,
25 what you say would be correct if the model were linear.
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1 Q. Okay.
2 A. If it were a linear model, then splitting
3 things into cells and applying the model to each
4 individual cell and adding them up would give you the
5 same answer as if you took the answer and applied it to
6 the whole thing. It's not a linear model, it's a
7 rather complicated form that's in the Burns and
8 MacDonald February 4th report and is in, of course, his
9 reports as well.
10 Q. And then your opinion out of this is that the
11 settling rate is sensitive to the short-circuiting, is
12 that the conclusion?
13 A. Yes.
14 Q. And by saying that, to a layman, what does
15 that mean?
16 A. Well, it means there's some rather important
17 information that is missing from the analysis on which
18 the settling rate, which is the critical design
19 parameter for the STA's, is based. That one needs to
20 know more than just the concentrations and loads going
21 in and out to estimate that model.
22 Q. And how would you approach resolving that?
23 A. How would I approach it?
24 Q. Yes.
25 A. I'd find a hydraulics expert.
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1 Q. Aren't you one?
2 A. No, I'm a hydrologist.
3 Q. What's the difference?
4 A. Hydraulics is basically the study of fluid
5 mechanics, applied fluid mechanics.
6 Q. And that's because we don't or you don't
7 think it's appropriate to make the assumption of a
8 natural continuum sheet flow in the WCA-2A?
9 A. No, I'm quite certain of that.
10 Q. That that's not the indication?
11 A. That that is not the case, correct.
12 Q. And you base that on this analysis or is
13 there something else you base that on?
14 A. No, I base that on site visits and the
15 bathymetry analysis, which we discussed last time.
16 Q. Can you define it? I was going over it, I
17 remember talking about it, just a quick --
18 A. Water depth, basically.
19 Q. And that was just a krigging of the water
20 depth?
21 A. Not exactly. This is -- I think we discussed
22 that a combination of several analyses, some of which
23 we had done for the top of sediment elevation and
24 sediment depth, top of sediment elevation in
25 particular, combined with the stage information from
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1 John Davis' group, or that John Davis' group had
2 interpreted.
3 Q. Now I recall that.
4 I don't want to ask you if this is your final
5 opinion because I know what your feelings are with
6 respect to finals, but with respect to this case,
7 unless otherwise asked by counsel do you plan to do any
8 other work with regard to your opinion regarding the
9 sensitivity rates and its relationship to the STA
10 performance?
11 A. There probably will be additional work done,
12 I expect that that will be of the nature of preparing
13 exhibits to demonstrate the nature of the findings, so
14 from that standpoint I can't say that every last figure
15 has been drawn and example run. From the standpoint of
16 forming an opinion in the nature of the issue, I
17 believe I've testified that that work has led to an
18 opinion.
19 Q. If Dr. Marin's work does come to your
20 attention, do you plan to review that?
21 A. Well, again, this depends on what I'm asked
22 to do by counsel.
23 MR. LOREDO: Counsel, if Dr. Lettenmaier does
24 review that --
25 MR. LIEBERMAN: We will make anything -- if
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1 he relies on it for his testimony or his opinions are
2 changed by that material, we will make you aware of
3 that situation.
4 MR. LOREDO: Then we'll come out to Seattle
5 again. Off the record.
6 (Discussion off the record.)
7 Q. Did you have any other discussions with Dr.
8 Richardson about any other issues on bulk density?
9 A. Based on advice from counsel, I don't believe
10 any other discussions we had would not come under the
11 nature of client privilege.
12 Q. Is that because you're telling me that you
13 had discussions with Dr. Richardson before in front of
14 counsel?
15 A. That's correct.
16 Q. Well, were these discussions about opinions
17 you intend to offer or material you've relied on or
18 anything in your formulation for this case?
19 A. No.
20 MR. LOREDO: Did you want to say something,
21 Counsel?
22 MR. LIEBERMAN: If you want to clarify what
23 you're trying to ask about, which conversations, I
24 think what Dr. Lettenmaier is referring to is
25 conversations that may have involved preparation of
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1 trial exhibits, preparation of trial strategy, which
2 would obviously be covered by the attorney/client
3 privileges in the presence of attorneys, at the
4 direction of attorneys, and it was a meeting resolving
5 litigation activities, not necessarily his direct
6 testimony at trial.
7 MR. FITZGERALD: Counsel, I don't accept
8 that. If, in fact, what you're saying is correct and
9 if what the witness said about exhibits is correct, if
10 he has participated in the production of exhibits based
11 on his expertise and he's already done that, he's open
12 to be questioned about it.
13 MR. LIEBERMAN: This was not in regard to his
14 exhibits. What the doctor is talking about is a
15 meeting called to attention by counsel. It was a
16 direct strategy session directly pertaining to trial
17 and it was not his particular exhibits that he was
18 preparing for trial and it had to do with strategy and
19 actions that will be taken at trial and formulating for
20 trial and preparing for trial and it would clearly be
21 under the attorney/client privilege as work product and
22 as an attorney work product privilege.
23 MR. FITZGERALD: So it's a work product
24 privilege you're invoking, not an attorney/client
25 privilege.
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1 MR. LIEBERMAN: Correct.
2 MR. FITZGERALD: As far as I can tell, none
3 of the clients were there.
4 MR. LIEBERMAN: That's right, it's attorney
5 work product privilege, for clarification, at meetings
6 that were held in preparation for trial. We're talking
7 about one meeting, for clarification.
8 MR. FITZGERALD: And actually according to
9 his correspondence, I think it was called by John
10 Davis.
11 Q. When was the meeting, Doctor?
12 A. The meeting we're referring to was Friday,
13 March the 24th, does that come out being a Friday?
14 Sorry, March 25th is probably a Friday, yes, Friday
15 March 25th.
16 Q. Did you travel to Miami?
17 A. No.
18 Q. Did you travel anywhere?
19 A. Yes.
20 Q. Where did you travel to?
21 A. Atlanta.
22 Q. Who else was at the meeting?
23 A. Other than Dr. Richardson, Dr. Millard, Dr.
24 Davis, Mr. Burgess -- excuse me, yes, Mr. Blank was
25 there.
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1 Q. Was Mr. Burgess there, also?
2 A. Yes.
3 Q. Anyone else?
4 A. At any part of the meeting?
5 Q. Yes.
6 MR. LIEBERMAN: I would --
7 MR. LOREDO: He can tell us who was at the
8 meeting. I'll indulge counsel with respect to your
9 work product privilege, but I do want to know about the
10 meeting and who was there and I believe we're entitled
11 to that.
12 A. Yes, I wouldn't be able to tell you the other
13 names. There was a presentation given on some graphics
14 issues.
15 Q. Was this presentation by counsel or by
16 consultants?
17 A. No, this was by some other consultants.
18 Q. And who were those other consultants?
19 A. I just told you I don't remember their names.
20 Q. What was the presentation on?
21 A. Simply had to do with graphics preparation.
22 Q. Were these expert consultants or consultants
23 in just graphics preparation?
24 A. In graphics preparation.
25 Q. Like trial graphics or something?
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1 A. Something like that, yes.
2 Q. Did you express any ideas of what kind of
3 exhibits you would like to prepare for trial?
4 MR. LIEBERMAN: Object to form. Are you
5 talking generally or are you asking his opinion
6 generally what he likes to do for trial?
7 MR. LOREDO: What his expressions as to what
8 exhibits he may offer at trial are.
9 Q. I'm trying to get an idea of what exhibits
10 you have thought about that you would like to present
11 at trial. I know you haven't done them, but you can
12 tell us if you had any input in that area.
13 MR. LIEBERMAN: Again I would tell you not to
14 answer to the point that it reflects direct requests
15 made by counsel for you to prepare certain exhibits for
16 trial.
17 MR. LOREDO: I don't have a problem with
18 that.
19 A. There were general discussions.
20 MR. FITZGERALD: We're going to see them in
21 two weeks anyway, big surprise.
22 A. We can go on with this for a while, you know,
23 I haven't thought a lot of that through that far. Yes,
24 there were discussions of the general nature of things
25 that might help convey certain messages and might not.
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1 Q. Have you thought about any animated computer
2 modeling procedures?
3 A. Animated?
4 Q. Yes.
5 A. No. It's an interesting idea.
6 Q. I guess you haven't.
7 A. Not 'til just now.
8 MR. LOREDO: That will cost them a lot of
9 money.
10 THE WITNESS: We can go through a lot of
11 money on animated models.
12 MR. FITZGERALD: It's okay.
13 Q. The simulation models that you've developed,
14 are they amenable to that type of application?
15 A. Well, now we're talking about things that
16 have absolutely nothing to do with the meeting, let me
17 clarify that first off, and I'm imagining how I might
18 go do some animation of some of the things I've done
19 and I could probably imagine animating things. Whether
20 they fall into the nature of models or data
21 presentation is something one would have to think
22 through and whether it even constitutes my own data
23 analysis or somebody else's.
24 Q. So you think it might work?
25 MR. LIEBERMAN: Object to the point it calls
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1 for speculation.
2 MR. FITZGERALD: He's an expert. It's a
3 hypothetical. Given enough money and time, we have the
4 technology, we can do it.
5 THE WITNESS: Thank you, you've answered my
6 question.
7 Q. Are there any other consultants you have met
8 or discussed or talked to about this case other than
9 who we've talked about so far, which is Dr. Richardson,
10 Millard, Davis, besides counsel?
11 MR. LIEBERMAN: Again, are you talking about
12 the last month since his deposition?
13 Q. In the last month since your deposition. I'm
14 just trying to see if somebody gave you a bright light
15 idea in the last month.
16 A. Certainly no one has given me a bright light,
17 and whether I've talked to anybody, with the possible
18 exception of people in John Davis' office regarding
19 data transfers and so on, to the best of my
20 recollection the answer is no, other than those that
21 you've listed, obviously.
22 Q. You haven't talked to Dr. Marin?
23 A. Not in the last month, no.
24 (Brief recess.)
25 MR. LOREDO: Back on the record.
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1 Q. I think you've told me about every consultant
2 you at least talked to about this case. What I'd like
3 to know now is whether or not you've reviewed any
4 depositions since your deposition, starting with did
5 you review your own deposition?
6 A. I'm about a third of the way through it,
7 found all the misspellings of "spatial" and a few other
8 problems.
9 Q. I found a few misspellings in there, too.
10 How about any other depositions of any parties in this
11 lawsuit?
12 A. Not to my knowledge.
13 Q. So you have not?
14 A. Since the date March 2nd, I do not believe
15 so.
16 Q. And you haven't seen any exhibits from any
17 deposed parties in this matter?
18 A. Since March 2nd, again, we get into this sort
19 of did it come the week before, did it come the week
20 after and I'm not quite sure. I have been provided
21 with some materials from William Walker's deposition, I
22 believe that was before March 2nd but I'm not certain.
23 Q. No.
24 A. No? Okay.
25 Q. In fact, your deposition was before Dr.
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1 Walker's deposition?
2 MR. FITZGERALD: For the record, so we don't
3 leave an incorrect impression here, Dr. Walker's
4 production of materials was before your deposition, you
5 could have received them before.
6 A. That makes it even more -- and I have glanced
7 at that material, have not had a chance to go through
8 all of it.
9 Q. I've got this picture in my mind of your desk
10 piled up with stacks and stacks of paper.
11 A. You have the right picture.
12 Q. Has there been any change in your contractual
13 relationship in this case?
14 A. No. There is no contract.
15 Q. You stated that you received a letter
16 notifying you of this deposition?
17 A. Well, I said I did not receive a deposition
18 notice.
19 Q. Right, but you did say you received a letter
20 from counsel advising you of a deposition.
21 A. Well, I received a letter saying that it
22 would be in this building, in this floor or this office
23 at this time, I received verbal notification prior to
24 that by about a week.
25 Q. And were you also asked at that point in time
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1 to produce any documents which you had not produced and
2 any additional documents or computer files or other
3 forms of media, such as the Unix 60-meg cartridge, any
4 work that you've done in that, did you produce such
5 media or documents to counsel?
6 A. You've asked two different questions.
7 Q. What I'm looking for is when you received the
8 notice.
9 A. I didn't receive a notice.
10 Q. When you were notified by counsel of the
11 deposition were you also advised to produce additional
12 documents which had not been produced and also
13 additional documents or media form, computer media
14 form, which would reflect the additional work you did
15 since March?
16 A. No.
17 Q. You were not advised of that?
18 A. No.
19 Q. Well, I don't know why counsel didn't do it.
20 Did you produce any documents, additional documents or
21 computer discs or any 60-meg cartridge to your counsel
22 in the last month?
23 A. Yes.
24 Q. Why did you produce it?
25 A. I presumed, and quite possibly based on the
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1 discussions at the previous deposition, that the
2 incremental work that had been done in that period
3 would need to be documented and that they would need
4 that information.
5 Q. Can you tell us what you produced to counsel?
6 A. I produced a 60-meg Unix cartridge tape and I
7 believe three, 3 1/2 inch floppy disks.
8 Q. Anything else?
9 A. No, other than a cover letter indicating what
10 was on those.
11 MR. FITZGERALD: Did you get that?
12 MR. LOREDO: I unfortunately didn't receive
13 your package until today, Counsel.
14 Q. But just for edification, can you tell me
15 what's in the 60-meg cartridge?
16 A. 60-meg cartridge tape is a copy of all of the
17 files that I have worked on including the ones that
18 have been done since the previous deposition.
19 Q. So I can get rid of the first 60-meg
20 cartridge that you provided in the production of the
21 deposition of March 4th?
22 A. Or you can send it back to me, if you would
23 like.
24 Q. What about the contents of the three, 3 1/2
25 inch floppy disks?
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