STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS SUGAR CANE GROWERS COOPERATIVE ) OF FLORIDA, a Florida ) Agricultural Cooperative ) Marketing Association, ROTH ) FARMS, INC., AND WEDGWORTH ) FARMS, INC., ) ) and ) ) FLORIDA SUGAR CANE LEAGUE, INC.;) UNITED STATES SUGAR CORPORATION;) and NEW HOPE SOUTH, INC., ) CASE NOS. 92-3038 ) 92-3039 and ) 92-3040 ) FLORIDA FRUIT AND VEGETABLE ) ASSOCIATION, LEWIS POPE FARMS, ) W.E. SCHLECHTER & SONS, INC., ) and HUNDLEY FARMS, INC., ) ) Petitioners, ) ) vs. ) ) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, an Agency of the State) of Florida, ) ) Respondent, ) ) and ) ) MICCOSUKEE TRIBE OF INDIANS OF ) FLORIDA, the UNITED STATES OF ) AMERICA, and FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, ) and the FLORIDA WILDLIFE ) FEDERATION, ) ) Intervenors. ) ________________________________) DEPOSITION OF RUSSELL B. RADER, PH.D. DEPOSITION OF RUSSELL B. RADER, PH.D. 250 Australian Avenue South Clearlake Center Suite 1403 West Palm Beach, Florida November 5, 1992 9:23 A.M. A P P E A R A N C E S: FOR PETITIONERS FLORIDA SUGAR CANE LEAGUE, INC.; UNITED STATES SUGAR CORPORATION; and NEW HOPE SOUTH, INC.: PEEPLES, EARL & BLANK BY: WILLIAM L. HYDE, ESQ. One Biscayne Tower Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131 (305) 358-3000 FOR RESPONDENT-INTERVENOR THE UNITED STATES OF AMERICA: UNITED STATES DEPARTMENT OF JUSTICE VICKI O'MEARA, ACTING ASSISTANT ATTORNEY GENERAL AND LINDA COLLINS HERTZ, ACTING UNITED STATES ATTORNEY BY: SUZAN HILL PONZOLI, ASSISTANT UNITED STATES ATTORNEY Southern District of Florida 155 South Miami Avenue Suite 627 Miami, Florida 33130-1693 (305) 536-4425 A P P E A R A N C E S (continued): FOR THE WITNESS, DUKE UNIVERSITY, AND THE DUKE WETLAND CENTER: GUNSTER, YOAKLEY & STEWART, P.A. BY: DAVID P. ACKERMAN, ESQ. Phillips Point Suite 500 East 777 South Flagler Drive P.O. Box 4587 West Palm Beach, Florida 33402-4587 (407) 650-0541 ALSO PRESENT: RONALD D. JONES, PH.D. MARK MAFFEI, PH.D. HERBERT J. GRIMSHAW, PH.D. 1 The deposition of RUSSELL B. RADER, PH.D., a 2 witness of lawful age, taken for the purpose of discovery 3 and for use as evidence in the above-styled cause, 4 pending in the Division of Administrative Hearings, State 5 of Florida, pursuant to Notice, before Pamela S. Wilson, 6 Notary Public in and for the State of Florida at Large, 7 at the time and place aforesaid. 8 * * * * * * * 9 I N D E X 10 WITNESS DIRECT 11 RUSSELL B. RADER, PH.D. (By Ms. Ponzoli) 7 12 13 14 E X H I B I T S 15 RADER EXHIBIT FOR IDENTIFICATION 1(1-7) Deposition Notice 9 16 2(1-4) Witness's CV 21 3(1-9) "The Effects of Nutrient Enrichment 17 on Algae and Macroinvertebrates in the Everglades: A Review" 24 18 4(1-43) "The Effects of Nutrient Enrichment on Algae and Macroinvertebrates 19 in the Everglades: A Review" 24 5(1-30) "The Effects of Eutrophication 20 on Algae and Macroinvertebrates in the Everglades" 24 21 6(1-3) Correspondence between the witness and Dr. de la Cruz in 4-92 22 7(1-2) Letter dated February 6 24 8(1-41) "The Effects of Nutrient Enrichment 23 on Algae and Macroinvertebrates in the Everglades: A Review" 24 24 9(1-54) "The Effects of Nutrient Enrichment on Algae and Macroinvertebrates 25 in the Everglades: A Review" 24 10 Letter dated May 14, 1992 24 1 E X H I B I T S 2 RADER EXHIBIT FOR IDENTIFICATION 11(1-11) Correspondence re: "The Effects of 3 Eutrophication . . ." 24 12(1-10) "Guide to Electronic Manuscript 4 Preparation" 24 13(1-65) Unpublished paper entitled "Changes 5 in Invertebrates and Small Fish Along a Nutrient Enrichment Gradient 6 in the Everglades" 24 14(1-7) Paper entitled "The Effects of 7 Agricultural Run-off on Small Fish and Macroinvertebrates in the 8 Everglades" 24 15(1-7) Initial copy of Exhibit No. 14 24 9 16 Abstract entitled "SWS '92" 24 17 Abstract entitled "Intecol '92" 24 10 18 Abstract Form 24 19(1-68) Quarterly report folder 24 11 20(1-39) Site notes and site coordinates 49 21(1-3) Invertebrate samples 49 12 22(1-10) Core data and miscellaneous notes 49 23(1-38) Inventory of samples 49 13 24(1-75) Documents entitled "Preliminary Analyses" 49 14 25(1-174) Documents entitled "Preliminary" 49 26(1-113) Documents entitled "2nd Step - 15 Gradient Study" 49 27(1-17) Summary of data 49 16 28(1-57) Final summary and analysis of data 49 29 Calculations (cover only - 17 exhibit later subdivided) 49 30(1-62) Cores data 49 18 31(1-210) Oxygen and pH data 49 32(1-60) Notes on identification of species 49 19 33(1-7) Notes from field book 49 34(1-18) Summary of weekly meetings 49 20 35(1-5) Summaries of experimental designs 49 36(1-2) Map with sites circled 51 21 37(1-63) Percent similarity calculations 62 38(1-18) Rarity index 64 22 39(1-10) Summary data 64 40(1-62) Summary tables 65 23 41(1-16) Summary tables 66 42 Map of Water Conservation 24 Areas 1, 2, and 3 72 43(1-13) Slides primarily on invertebrate 25 data 84 44(1-9) Summary tables 84 1 E X H I B I T S 2 RADER EXHIBIT FOR IDENTIFICATION 45(1-14) Tables and figures 84 3 46(1-10) Figures and tables 84 47(1-13) Slides prepared for presentations 84 4 48(1-14) Slides and outlines prepared for presentations 84 5 49(1-3) Printout of Disk No. 1 menus 96 50 Printout of Disk No. 2 menus 96 6 51(1-8) Printout of Disk No. 3 menus 96 52(1-2) Printout of Disk No. 4 menus 96 7 53(1-13) Printout of Disk No. 5 menus 96 54(1-9) Printout of Disk No. 6 menus 96 8 55(1-3) Printout of Disk No. 7 menus 96 56(1-17) Printout of Disk No. 8 menus 96 9 57 Miscellaneous slides 115 58 Miscellaneous slides 115 10 59 Miscellaneous slides 115 60 Miscellaneous slides 115 11 61 Miscellaneous and fertilizer slides 115 62 Fertilizer slides 115 12 63 Fertilizer slides 115 64 Talk/data slides 115 13 65 Talk/data slides 115 66 Talk/data slides 115 14 67 Dosing study slides 115 68 Dosing study slides 115 15 69 Dosing study slides 115 70 Dosing study slides 115 16 71 Dosing study slides 115 72 Dosing study slides and blanks 115 17 18 19 20 21 22 23 24 25 1 Whereupon: 2 RUSSELL B. RADER, PH.D., 3 was called as a witness by the Respondent-Intervenor and, 4 having been first duly sworn, was examined and testified 5 as follows: 6 DIRECT EXAMINATION 7 BY MS. PONZOLI: 8 Q Sir, would you state your full name for the 9 record. 10 A Russell B. Rader. 11 Q And your address, Dr. Rader. 12 A Work or at home? 13 Q I think your work address would be -- 14 A 16139 Okeechobee Boulevard -- let's see. 15 We're in Loxahatchee, Florida. 16 Q Your phone number there? 17 A 790-0843. 18 Q By whom are you employed, Dr. Rader? 19 A Duke University. 20 Q Dr. Rader, I'm Suzan Hill Ponzoli. I 21 represent the United States in the SWIM challenges. I'll 22 be asking you today, really, to identify the multiple 23 documents that you have produced in response to the 24 Notice Duces Tecum. 25 Have you ever had your deposition taken 7ÿ 1 before, Dr. Rader? 2 A No. 3 Q If you do not understand a question, it's 4 important that you indicate that to me because we will 5 assume that you understood the question when you answer, 6 and I will be happy to try and frame a better question 7 for you if you're having difficulty understanding my 8 question. 9 A Okay. 10 Q You are represented here by one or two 11 counsel. 12 What is it, gentlemen? 13 MR. ACKERMAN: My name is David Ackerman. I 14 represent the witness for the limited purpose of 15 assisting the witness in protecting the 16 confidentiality of certain trade-secrets 17 documents, which we'll talk about in a second, 18 but I also represent Duke University and the Duke 19 Wetland Center. 20 I have no representation of the witness or 21 any of those parties in connection with the 22 merits of this case or the outcome of this case 23 and don't know very much about it at all. 24 MR. HYDE: My purpose in being here is on behalf 25 of the petitioners, Florida Sugar Cane League, 8ÿ 1 U.S. Sugar Corporation, and New Hope South, Inc. 2 Dr. Rader is one of our listed witnesses, and 3 that is obviously the reason why we are here 4 today. 5 Q BY MS. PONZOLI: Dr. Rader, have you seen a 6 copy of the Renotice of Taking Deposition Duces Tecum 7 that should have been served on you? 8 A Yes. 9 Q Let me have it marked for identification, 10 and let's go through it together. 11 What we have been doing, gentlemen, in the 12 prior depositions at which I was in attendance, 13 possibly with the exception of Dr. Parks's, is we 14 have been calling them Johnson Exhibit 1, Johnson 15 Exhibit 2 and -- 16 MR. HYDE: Fine. 17 MS. PONZOLI: -- this would be Rader Exhibit 1. 18 MR. HYDE: That's fine. 19 MS. PONZOLI: So we will number them in that 20 manner. 21 (Rader Exhibit 1(1-7) was marked 22 for identification by the reporter and is 23 included herewith.) 24 MS. PONZOLI: Mr. Ackerman, do you want to make a 25 statement on the record? 9ÿ 1 MR. ACKERMAN: I just wanted to give the witness 2 an instruction about the documents that he has 3 produced. 4 Our intent is to file some sort of a 5 Motion for Protective Order as to the documents 6 that Dr. Rader has produced to which we would 7 claim the trade-secrets privilege under the 8 Florida Evidence Code. Because Dr. Rader has 9 already produced those documents, they're 10 obviously in the stream of documents in this 11 litigation, but we will be asking the hearing 12 officer to limit their use for purposes of the 13 litigation only and not to allow their use for 14 outside scientific, commercial, or 15 patent-oriented uses. 16 Dr. Rader has not had the opportunity to 17 provide me with a list of those documents but 18 plans to, and I'm going to ask him today, in 19 answering questions about the documents, to let 20 you know when he comes across a document that 21 would fall within that privilege. And we'll take 22 up at a later time the filing of the motion and 23 the briefing on it. 24 The other instruction that I would give 25 him would concern the three pieces of paper which 10ÿ 1 we did not produce yesterday during the 2 deposition of Robert Johnson. Those were two 3 documents. One was a schematic, and the other 4 one was a parts list. I understand Dr. Rader has 5 no personal knowledge about the details of those 6 two documents and could not testify very much 7 about those at all. 8 So to the extent that any specifics of 9 those documents pop into your mind, I'm going to 10 instruct you not to provide that information. 11 Any question that you are asked about those, 12 please provide the lawyers with all of the 13 personal knowledge and information you have about 14 those with the sole and narrow exception of the 15 details contained within the schematic and parts 16 list that Mr. Johnson is concerned about. 17 And lastly, I will say, because I'm going 18 to be leaving, that we've had no involvement in 19 compliance with the subpoena, and if an issue 20 comes up, I'm available to the extent that I can 21 be helpful. Thanks. 22 MS. PONZOLI: Is it accurate, Mr. Ackerman, that 23 the compliance with the subpoena has been handled 24 by Mr. Hyde's firm? 25 MR. ACKERMAN: I would assume so. 11ÿ 1 MS. PONZOLI: You do not know? 2 MR. ACKERMAN: I do not know. 3 MR. HYDE: I can represent that that is indeed 4 the case. I have not had anything to do with 5 Mr. Johnson's documents that Mr. Ackerman 6 referred to a few moments ago, and even if I had 7 seen them, I wouldn't understand them anyway. 8 MS. PONZOLI: Mr. Ackerman, I would just like to 9 put on the record that I can certainly understand 10 Dr. Rader's concern. I assume this is over his 11 raw data and the use of it by someone else for 12 duplication purposes. That is my assumption. I 13 can certainly sympathize with that, but I would 14 like the record to reflect that this particular 15 litigation has evolved in many forms. 16 As we are all well aware, it started in 17 Federal Court and federal scientists have, for 18 years now, been compelled by, in particular, 19 Mr. Hyde's firm to produce their raw data and the 20 results of all their personal research into the 21 public stream of information. And the dominant 22 reason for that production was that it was data 23 generated by public funds and therefore felt to 24 belong to the public. 25 Those scientists felt those same painful 12ÿ 1 experiences of years of hard work being turned 2 into the public domain, but it was done. And I 3 believe, in fairness, this issue is on the other 4 foot, and perhaps it is only fair that the data 5 generated at the public's expense, which it is 6 the EPD which I understand to have funded 7 Dr. Rader's work, would again belong to the 8 public domain. 9 I want this on the record simply because 10 it is a fact that has gone on in the ongoing 11 process of this public debate over the nature of 12 the Everglades and the problems and the 13 resolution. And I guess we'll have to deal with 14 the briefs when they're filed. 15 MR. ACKERMAN: The only thing I would add is that 16 we would certainly entertain any discussions 17 about documents that your side has produced about 18 which the scientists are concerned insofar as 19 arriving at a reciprocal arrangement. I would 20 certainly be willing to pursue discussions like 21 that or any other discussions designed to resolve 22 the issues short of briefing and a hearing 23 officer. 24 MS. PONZOLI: Certainly. 25 MR. ACKERMAN: But I appreciate your position. 13ÿ 1 MR. HYDE: I'd like you to know that Dr. Rader is 2 producing all his documents here today. There is 3 no question here about our depriving the 4 respondents of any access to any of his 5 information or data. 6 Secondly, I don't think that, 7 Ms. Ponzoli's concerns about the data generated 8 by the federal scientists notwithstanding, 9 there's any credible claim that that information 10 or data has been misused for someone else's 11 proprietary purposes or commercial advantage, and 12 there's certainly no intent that that ever occur. 13 We are seeking -- or I think what Duke 14 Wetland Center and Dr. Rader are seeking is that 15 their information not be provided to some 16 commercial or professional advantage. 17 MS. PONZOLI: I really have to tell you that I've 18 been around this block with my own scientists so 19 many times that I pretty much understand the 20 issues that are at stake here. 21 MR. HYDE: Well, it's all part of the publish or 22 perish process of academia -- 23 MS. PONZOLI: Right. 24 MR. HYDE: -- not solely -- 25 MS. PONZOLI: It's not so much a commercial 14ÿ 1 advantage as a professional use of it, and I 2 think we're just going to have to see if we can 3 resolve it among ourselves. I do believe there 4 are some of my scientists that feel they have 5 suffered that impediment, in fact, but let me see 6 how they feel. 7 And if there is protection that can be 8 offered to them in exchange for the research 9 generated under the Environmental Protection 10 District or the Everglades Protection District -- 11 MR. HYDE: Yes. 12 MS. PONZOLI: -- and if that's possible, that 13 would certainly be desirable. 14 MR. ACKERMAN: I agree with that. 15 MR. HYDE: It would be desirable to come up with 16 an agreement that would take care of all of those 17 problems -- 18 MS. PONZOLI: Okay. 19 MR. HYDE: -- so we don't have to deal with this 20 in the future. 21 MS. PONZOLI: There's no intention to cause that. 22 MR. ACKERMAN: Thank you for your time. 23 MS. PONZOLI: I would like to -- I think it will 24 just be easier, Mr. Ackerman, if you wait one 25 second. 15ÿ 1 Q Dr. Rader, do you have any knowledge of the 2 three pages that were withheld as, quote, trade secrets 3 by Mr. Johnson yesterday? 4 A Knowledge of them? 5 Q Yes. 6 A As in whether they exist or not? 7 Q What do you know about them? Why don't you 8 tell me that. 9 A I have -- I don't think I've even seen them. 10 Q You simply know that there are such pages 11 that are in dispute? 12 A That's all I know. 13 Q And you do not know what they look like or 14 what's on the three pages? 15 A No idea, no -- well, other than they're 16 electronic diagrams pertaining to the dosing study. 17 That's the full extent of my understanding. 18 MS. PONZOLI: That's fine. 19 MR. ACKERMAN: Okay. Thanks. 20 (Whereupon Mr. Ackerman left the deposition 21 proceedings.) 22 Q BY MS. PONZOLI: Dr. Rader, I would ask you 23 to look at the Rader Exhibit No. 1. I would like to go 24 through this. Is it your understanding, Dr. Rader, that 25 you have produced all documents in response to this 16ÿ 1 Notice Duces Tecum? 2 A Yes. 3 Q As I explained to you prior to the 4 deposition starting, because you have some number of 5 computer disks that were produced to my office, I guess, 6 the day before -- yes. I'm not sure if it's yesterday, 7 day before yesterday. And because the slides are several 8 hundred slides -- 9 A I don't think it's that many. But 50. 10 Q Oh, you only have about 50 slides? 11 A I think so. 12 Q Well, your 50 slides were produced yesterday 13 in addition to the hard copy of raw data and certain 14 articles that exist here. The intention for the 15 beginning of your deposition is that it would really be a 16 document identification, that you will identify these 17 documents in response to the different requests and 18 identify which data belongs to which categories so that 19 we may sit and go through your documents in some rational 20 fashion before questioning you substantively, which will 21 in all probability occur in December. 22 A I have a question about the slides. I have 23 copies of the disks, but those are my original slides. 24 Q Right. 25 A When would I be receiving those? 17ÿ 1 MR. HYDE: They're going to be, just for 2 purposes -- we didn't discuss those. They're to 3 be delivered here this morning by Federal Express 4 courier. I don't know what time Federal Express 5 gets to this office, but it's supposed to be 6 sometime this morning. 7 Q BY MS. PONZOLI: Just so you are aware, in 8 the process by which the parties exchange documents, 9 neither party ever takes possession of the other party's 10 documents. 11 A Uh-huh. 12 Q They are sent to a commercial copier who, at 13 the instruction of both your attorney's and my office, 14 will make duplicate copies of them. That was done with 15 your slides. I have a set of slides that should be 16 arriving here prior to your set this morning, and we will 17 probably talk from my duplicate set. But at no time did 18 I ever have possession of your original documents. 19 A Okay. I was just wondering when I get them 20 back. 21 Q Yes. All right. I would like -- and I know 22 this may be difficult for you, Dr. Rader, but it's very 23 important to us, and I think in a while it will be 24 important to you, when we do your substantive deposition, 25 that you make sure that everything that you did produce 18ÿ 1 has somehow been copied here and that we have possession 2 of. If you believe there's a gap, I don't think Mr. Hyde 3 will have any problem in providing that gap, refilling it 4 so that we have a full set of your documents. 5 A Well -- 6 Q I am concerned that, because of the multiple 7 productions, it would be hard to be sure that we have it 8 all. 9 A You know, I went to my files and, to the 10 best of my knowledge, gave you everything that I had that 11 pertained to the Everglades. 12 Q Right. 13 A I don't memorize each and every one. I 14 don't have it cataloged in my brain. As you can see, 15 it's a lot of material; so if something is missing here, 16 all I can say is, to the best of my knowledge, I gave it 17 to you and whether something got lost or not, can I go 18 through and -- 19 Q That's what I'm asking. 20 A If you're asking me to make sure if 21 everything's there that I gave you, I don't know. 22 Q I'm asking you to make an effort. 23 A Okay. 24 Q It may be there's a dominant piece of 25 publication, and as we go to through the four to six 19ÿ 1 inches of hard copy, you'll realize and say, "Mr. Hyde, 2 Ms. Ponzoli" -- 3 A I can do that. 4 Q -- "my publication is not here." 5 And Mr. Hyde will turn it over to me. Or if 6 there is a critical set of your data that you know exists 7 that you believe you turned over to someone to turn over 8 to us, and somehow, in the translation, we don't find it 9 today, we need to fill that gap. That's what I'm asking. 10 I'm not asking that every sheet be accounted for because 11 I realize that may be very difficult for you. 12 A Okay. 13 Q That's what I'm asking. 14 A Your question makes we want to run home and 15 make sure I gave you everything. I hope I got it all. 16 Q We have not lost anything, but it's because 17 we do the things in the same manner that nothing gets 18 lost. All right. 19 The documents to be produced -- let's start 20 first with a copy of your CV or similar document. If we 21 could pull that from the pile, and let's mark it for 22 identification, and we'll just keep moving. I won't 23 question you on it at this time. 24 A Okay. I didn't see it in this stack, my CV. 25 Was it in here? 20ÿ 1 Q Why don't you just hand me one. 2 A I'm pretty sure I didn't see it here. Let 3 me look one more time. Here you go. 4 MS. PONZOLI: Let's mark this for identification. 5 (Rader Exhibit 2(1-4) was marked 6 for identification by the reporter and is 7 included herewith.) 8 Q BY MS. PONZOLI: Dr. Rader, is this a 9 current copy of your curriculum vitae, or resume, 10 whatever you prefer to call it? 11 A Yes. There might be actually some more 12 recent updates, but yeah, uh-huh. 13 Q What would you update on it? 14 A This paper on the "Determinants of 15 Decomposition in a Southeastern Coastal Plain, Blackwater 16 Stream," we received back. It's no longer in review. 17 That's the only thing. 18 Q That one would not be in review? 19 A Right. 20 Q Is there anything else that's listed for 21 review that's now been received for publication? 22 A No. 23 Q Have you submitted anything in addition to 24 anything that's on this list? 25 A No. 21ÿ 1 Q We need to put these in a pile, if you'll 2 give me this one. All right. No. 2 is "A list of all 3 technical, professional, or scientific publications, 4 reports, monographs, articles, monographs, thesis, or 5 similar documents in which you are identified as author 6 or co-author related to Everglades research." 7 A Are they all here is the question. 8 Q Did you produce a list, or did you just 9 produce copies of them? 10 A Copies. 11 Q So we go to a copy of each Everglades 12 publication. That includes drafts, edited copies, 13 reviewers' comments, and the final versions under No. 3. 14 You paid attention to that -- 15 A Uh-huh. 16 Q -- did you not? 17 I would like us to look through and make 18 sure we have, to the best of your knowledge, all of those 19 documents. 20 A This one is in publication, or it's already 21 been published. 22 Q We'll get them together, and then we will 23 mark them for identification. It would probably be best 24 if you just pull them first. 25 MR. HYDE: Ms. Ponzoli, I don't know how we'll 22ÿ 1 handle this. A number of documents would fall 2 under several of the categories that you've 3 listed. 4 MS. PONZOLI: That's fine. 5 MR. HYDE: Do you intend to go through each of 6 those categories each time? 7 MS. PONZOLI: No. Once he's said, I've produced 8 everything previously -- my request became fairly 9 redundant after a while. I wanted everything he 10 did on the Everglades, and I asked for it a 11 number of different ways. 12 THE WITNESS: The quarterly reports. Looks like 13 a paper I'm currently working on. 14 Q BY MS. PONZOLI: What you should probably 15 do, Dr. Rader, instead of commenting on each of these is 16 pull them aside, and then I'll have her mark them for 17 identification. I'm afraid I'm going to forget as you 18 give me these comments because we'll have to mark them 19 separately. 20 A Okay. Okay. These two. They've included 21 abstracts. Did you not? 22 Q Yes, we did. 23 A Let's see. It goes with this one, I 24 believe. I'm not sure. 25 Q With that one? 23ÿ 1 A With that stack, yeah. 2 Q Is that it? 3 A That's it from that stack, yeah. 4 Q Dr. Rader, do you believe that these 5 represent all of your written work on the Everglades? 6 A I believe so, yes. 7 Q All right. 8 A You've got that one, that one, and that one 9 (indicating). 10 Q Let's mark them for identification. What I 11 may want to do is go through the annual reports and make 12 sure your writing in the annual reports is reflected in 13 these reports or, if these are additional articles maybe 14 on the same topic but still -- 15 A Uh-huh. 16 Q -- your publications, let's mark these all 17 and then begin to talk about them. 18 Off the record. 19 (Discussion off the record.) 20 (Rader Exhibits 3(1-9), 4(1-43), 5(1-30), 21 6(1-3), 7(1-2), 8(1-41), 9(1-54), 10, 11(1-11), 22 12(1-10), 13(1-65), 14(1-7), 15(1-7), 16, 17, 18, 23 and 19(1-68), were marked for identification by the 24 reporter and are included herewith.) 25 Q BY MS. PONZOLI: Dr. Rader, I'm going to 24ÿ 1 hand you Rader Exhibit No. 3. Can you identify this for 2 us, please. 3 A Yeah. That's the final copy of this 4 particular publication sent for "Wetlands." 5 Q Would you read the name of it into the 6 record, please. 7 A "The Effects of Nutrient Enrichment on Algae 8 and Macroinvertebrates in the Everglades: A Review." 9 Q I'm going to hand you Rader Exhibit No. 4. 10 Can you identify that, Dr. Rader? 11 A This is a review of this same paper by the 12 first reviewer that -- that -- and also, as I see, this 13 same review was made by de la Cruz on this same paper, 14 this same copy of this paper. So there's reviewer 15 No. 1's comments, and what were in red were de la Cruz's 16 comments, which was a third reviewer on this particular 17 paper. 18 Q Who was the first reviewer, Dr. Rader? 19 A They're anonymous. 20 Q So you have no idea who your first reviewer 21 was? 22 A Let's see. One of the reviewers signed his 23 name. I don't know if he was the first or the second. 24 James Kushlan and de la Cruz identified themselves. The 25 other reviewer, I don't know. He's anonymous. 25ÿ 1 Q So you don't know if this was the anonymous 2 reviewer or the Kushlan? 3 A I don't remember. 4 Q I'm going to hand you Rader Exhibit No. 5. 5 A This is the second reviewer's comments. 6 Q So this is either Kush -- 7 A This would be either Kushlan or the 8 anonymous reviewer's comments. I can look at it and tell 9 you probably. 10 Q Okay. 11 A Do you want me to do that? 12 Q Okay. That would be fine. 13 A Let me see if I remember it well enough. I 14 think I remember who -- yeah. This is the anonymous 15 reviewer's, was reviewer No. 2. James Kushlan was 16 reviewer No. 1, and de la Cruz also was, I guess, the 17 third reviewer. 18 Q I'm going to hand you Rader Exhibit No. 6, 19 Dr. Rader. Can you identify that? 20 A These were Dr. de la Cruz's comments on this 21 paper to the editor, Doug Wilcox -- no. Excuse me -- to 22 me. These are his -- this is a notice from him to me, 23 saying that he's handling, as a third reviewer, this 24 manuscript. 25 Q Dr. Rader, Rader Exhibit No. 7? 26ÿ 1 A These are my remarks to Dr. Wilcox on the 2 revision of this manuscript -- excuse me. 3 Q I'm handing you Rader Exhibit 8, and can you 4 identify that? 5 A It's the penultimate copy made of that; so a 6 copy of this paper, after it has -- the reviewer's 7 comments have been made or changed on it. 8 Q And that would be essentially the same as 9 Rader Exhibit No. 3? 10 A Which one was No. 3? 11 Q "The Effects of Nutrient Enrichment . . ." 12 Yes. 13 A There might be some minor changes but 14 essentially the same, yes. 15 Q Is Rader Exhibit 9 the same -- 16 A The same as 8. 17 Q -- to your recollection? 18 It's just another duplicate copy? 19 A Yeah. 20 Q Rader Exhibit 10, can you identify that? 21 A Yeah. This is the acceptance letter after 22 the reviews by Doug Wilcox to myself. 23 Q Raider Exhibit No. 11, can you identify 24 that? 25 A This is his first letter. Maybe we better 27ÿ 1 separate some of these. This is his first letter. 2 Q "This" being -- you'd better identify it 3 into the record. The one that has the Rader Exhibit 11 4 stamp actually on it is the first letter? 5 A Right, and that's Dr. Wilcox's first letter 6 to me -- 7 Q Right. 8 A -- that accompanied the first reviewers' 9 comments, one and two. 10 Q But this is a composite exhibit. It 11 contains more documents. 12 A And they're different; so maybe they ought 13 to be separate -- 14 Q Well, maybe they should. 15 A -- because this is my cover letter that 16 accompanied the paper at the time of submission. 17 Q That is a letter dated to Dr. Wilcox dated 18 9-13-91, typed in "Russell B. Rader." Is that accurate, 19 Dr. Rader? 20 A Right. 21 MR. HYDE: Are you going to separately identify 22 those as exhibits or just leave them as part of a 23 composite? 24 MS. PONZOLI: I'm inclined -- if they're all 25 related to that document, since we've already 28ÿ 1 numbered and we've numbered sequentially after 2 that, to make a composite exhibit and identify 3 that there are however many documents under Rader 4 Exhibit 11 identified as -- whatever Dr. Rader -- 5 MR. HYDE: You can list them as 11-A, -B, -C, -D. 6 MS. PONZOLI: Off the record. 7 (Discussion off the record.) 8 MS. PONZOLI: Back on the record. 9 We've decided to use the court reporter's 10 system of 11-1, 11-2, et cetera, 11-1 being the 11 Wilcox letter, 11-2 being the -- 12 MR. HYDE: Could you tell me what the date was on 13 that? 14 MS. PONZOLI: December 5, 1991. 11-2 was 15 Dr. Rader's letter to Dr. Wilcox of 9-13-91. 16 Q 11-3, Dr. Rader, could you identify that for 17 us, please. 18 A This is a letter from the editor, just 19 recognizing that he has received my manuscript and that 20 it will be reviewed. 21 Q 11-4, Dr. Rader, can you identify that, 22 please. 23 A This is a cover sheet for the first 24 reviewer's comments. 25 Q 11-5, Dr. Rader, can you identify that? 29ÿ 1 A This goes with the cover sheet. It's just 2 those reviewer's typewritten comments. 3 Q Would you identify 11-6. 4 A It's the second page of the same. 5 Q And is 11-7 the final page of it? 6 A Yes. 7 Q I'm taking meticulous a new height. 8 11-8? 9 A This is the comments of the second reviewer. 10 Q 11-9, Dr. Rader, can you identify that? 11 A Yes. This is the one page that accompanies 12 the second reviewer's comments. This is the second page 13 of the same. 14 Q 11-10 is the second page of 11-9? 15 A Of that, right. 16 Q Then is 11-11 the third page of that same 17 document? 18 A Yes, uh-huh. 19 Q Dr. Rader, can you identify Rader No. 12? 20 A All of these pages are simply instructions 21 to the author for publishing in that particular journal. 22 Q Can you identify Rader No. 13, Dr. Rader? 23 A All right. This is a paper that I am 24 currently working on that has not been submitted for 25 publication. This, along with the reviewer's comments on 30ÿ 1 the paper, based on what David Ackerman was discussing 2 earlier, I'd like to identify as protective or hopefully 3 under some sort of protective privilege, I guess. 4 Q Rader No. 13 is a document you are currently 5 working on for publication? 6 A Yes. 7 Q So that would be the reason you would wish 8 to retain that? 9 A Right. That has not been submitted. 10 Q The review comments of the prior 11 publication, which would have been "The Effects of 12 Nutrient Enrichment on Algae and Macroinvertebrates in 13 the Everglades: A Review" -- 14 A Uh-huh. 15 Q I can understand the interest in this 16 document, but on the prior reviews, can you explain to me 17 what protective interest you believe you have in the 18 reviews of it? 19 MR. HYDE: I don't think he asserted any 20 protective -- 21 Q BY MS. PONZOLI: I understand you said the 22 reviews you also wish to keep in a confidential or more 23 confidential circle. Am I wrong? 24 A No. Yeah. That would be -- if that's 25 possible, that's what I would like to do, yes. 31ÿ 1 Q I'm asking you why. I don't understand the 2 reviews. This article, "The Effects of Nutrient 3 Enrichment on Algae and Macroinvertebrates in the 4 Everglades: A Review" is already out on the street, so 5 to speak. 6 A The article is out -- 7 Q The article is out. 8 A -- but the reviewers' comments are private 9 matters. 10 They're done anonymously between reviewers 11 and the -- as I'm sure you understand, and the author. 12 So in terms of confidentiality and privateness, I would 13 just as soon that they not become accessible to anyone 14 that thinks, gee, I wonder what this reviewer thought of 15 that. 16 Q So it's not a proprietary or commercial or 17 professional interest. It's really more a privacy issue 18 in your mind? 19 A Yes, uh-huh. I assume that is legitimate. 20 Maybe not. Huh? 21 Q I'd like to ask you to identify Rader 22 Exhibit No. 14. 23 A Yes. This was sent for publication in 24 "Wetlands," a special issue of that, and it corresponds 25 with The Society of Wetlands Scientists meetings that 32ÿ 1 were held this year; so that proceedings of those 2 meetings are being published. That is my contribution to 3 that. 4 Q Is this an extension of "The Effects of 5 Nutrient Enrichment on Algae and Macroinvertebrates in 6 the Everglades: A Review"? 7 A No. 8 Q Is it a separate -- 9 A Separate. 10 Q Rader Exhibit Number 15, can you identify 11 this? 12 A This is the initial copy, my writing of that 13 last document, the one that corresponds with The Society 14 of Wetlands Scientists meetings, the publications of 15 those proceedings; so this is just an earlier rendition 16 of that. 17 Q So Rader 15 is an earlier rendition of 18 Rader 14? 19 A Right. 20 Q And you would consider Rader 14 your final 21 product? 22 A Yes. 23 Q Can you identify Rader 16? 24 A This is an abstract sent to The Society of 25 Wetlands Scientists, just describing my talk, the topic 33ÿ 1 or focus of my talk, for that particular meeting. 2 Q Rader No. 17? 3 A This is the same, just an abstract 4 describing the findings of my research and what I'm going 5 to talk about at the Intecol meetings, international 6 wetland meetings. 7 Q Rader No. 18? 8 A This is the same, an abstract submitted to 9 the Society of Limnology and Oceanography for a talk -- 10 or actually a poster session that I presented there in 11 '91. 12 Q Rader No. 19 is a composite exhibit. 13 Dr. Rader, I'd like you to identify the composite exhibit 14 for us. 15 A Yeah. I think we have a couple things mixed 16 up here. 17 Q Are there some documents, other than what 18 appears to be quarterly reports, mixed in with that 19 document? 20 A Yes, there is, yes. 21 Q Why don't we clean it up and make a clean 22 composite exhibit of quarterly and/or monthly reports, 23 assuming you believe those belong together, and then 24 separate out those documents that you believe are 25 inappropriate for that pile. 34ÿ 1 MR. HYDE: Off the record. 2 (Discussion off the record.) 3 THE WITNESS: These are all quarterly-report 4 documents. 5 Q BY MS. PONZOLI: Rader Exhibit No. 19 is a 6 composite of quarterly reports. Dr. Rader, when did -- 7 to the best of your knowledge, when did the Duke Wetland 8 Center begin publishing quarterly reports? Do you know? 9 A Oh, I don't remember right offhand. 10 Q All right. If we were missing what appeared 11 to be -- and I believe there are some missing from 12 here -- quarterly reports, where would be the easiest 13 place for us to obtain those missing quarterly reports? 14 A I think probably Dr. Richardson's office at 15 Duke would be the easiest way. 16 MR. HYDE: I'll just note for the record that 17 Dr. Rader has not been employed by the Duke 18 Wetland Center from the inception of its studies 19 of the Everglades system. 20 Q BY MS. PONZOLI: I have one more question on 21 this composite Exhibit No. 19 for the present, Dr. Rader. 22 There is a monthly report dated September 15, 1992. Can 23 you explain to me the difference between the quarterly 24 reports and the monthly report? 25 A I think that that's -- that we don't make 35ÿ 1 monthly reports. And so I think that's just a -- not 2 necessarily a typed error, but I think they meant to 3 indicate the month that that quarterly report was due. 4 So I would chalk it up -- this being a cover letter, I 5 didn't write this. So I would just chalk it up to 6 whoever wrote it. 7 Q It's a clerical error, in your view? 8 A Yeah, right. 9 Q I believe -- is this an additional document 10 sitting in front of you -- 11 A Uh-huh. 12 Q -- that we have not marked? 13 Does it fit into a very separate category? 14 A Yes. 15 Q Let's hold onto that until we get to that 16 area. We have now, I believe, gone through at least 17 what I understand to be the copies of your response to 2 18 and 3, the technical, professional, scientific 19 publications et cetera, including drafts, reviewers' 20 comments and final versions. 21 Do you recall any others that you have done 22 on the Everglades? 23 A I think this might be -- is this yours 24 maybe? I'm just looking at that and wondering. 25 Q The introduction -- have we included the 36ÿ 1 introduction among the documents? 2 A Is that a copy of that over here is what I'm 3 wondering. May I -- 4 Q Sure. 5 A -- look at that real quick? 6 Yeah. A copy that is over there. 7 Q Yes, the introduction is here. Do we also 8 have the decomposition experimental design, or does that 9 fit into a different category? 10 A Again, your categories and categories in my 11 head are two different issues. 12 Q Right. 13 A But this is not for publication. It's not a 14 report or anything. 15 Q All right. The decomposition experimental 16 design would fit under a different category under my 17 Subpoena Duces Tecum, you believe? 18 A I believe so, yes. What page is this? 19 Q I'm on page 6. 20 A We're at No. 3? 21 Q So we're trying to finalize No. 3. So we 22 think we have all your publications on the Everglades, 23 including comments, et cetera, abstracts. Do you think 24 we've reviewed everything? 25 A Yes, yes. 37ÿ 1 Q Just to be sure, let us go through the -- 2 A Well, they're annual reports. 3 Q -- the annual reports. 4 You were hired by the Duke Wetland Center 5 when? 6 A I think on record it would be August -- July 7 or August of 1990. I'm not a hundred percent sure what 8 month exactly. 9 Q All right. If we were to go through the 10 annual report August, 1991, you were listed as a 11 coprincipal investigator, and, Dr. Rader, you are listed 12 as having contributed along with Dr. Richardson to 13 Chapter 5, Fauna. Is that accurate? 14 A That is true. 15 Q Are there any other drafts of that 16 contribution? 17 A The drafts of that are the drafts that 18 relate to the review article that has been published in 19 "Wetlands"; so that chapter was modified, changed, 20 whatever needed to be done to put it in publishable form. 21 So that -- actually, the subsequent drafts of that paper 22 are the preliminary drafts to the reviewed article that 23 was published in "Wetlands." 24 Q Can you identify by exhibit numbers -- my 25 memory is not helping me here -- can you identify by 38ÿ 1 exhibit numbers which ones belong with Chapter 5, 2 entitled "Fauna"? 3 A (Indicating.) 4 Q That would be Rader Exhibit No. 3. Is that 5 what you're indicating? 6 A May I see it for just a second? 7 Q Sure, sure. 8 A I need to jog my memory here a little bit. 9 Okay. Parts of this, Chapter 5, were used in the 10 publication of this (indicating). 11 Q Rader Exhibit No. 3 -- 12 A No. 3, yes. 13 Q -- right? 14 A Parts of it. 15 Q What other exhibits would relate to that 16 Chapter 5 that were among the exhibits we've already 17 identified? Are you able to just flip through the 18 exhibits and tell me which ones, just quickly, relate to 19 it? 20 A There's a relationship between Chapter 5 21 and -- 22 Q Yes, sir. 23 A -- for example, Exhibit 4, Exhibit 5, 24 Exhibit 8, Exhibit 9, Exhibit -- 25 Q You skipped one. 39ÿ 1 A Did I? That wasn't on purpose. 10 and 11, 2 probably not 12. So there's some relationship there 3 between Chapter 5 and that paper. 4 Q Are you listed in that 1991 annual report as 5 having authored other chapters or coauthored other 6 chapters? 7 A Yes. 8 Q Are you the principal writer of Chapter 5? 9 A Uh-huh, yes, I am. 10 Q Did Dr. Richardson edit or just review 11 Chapter 5, or is that predominantly your work? 12 A No. He did review it, as I recall, uh-huh. 13 Q But you authored it? 14 A Right. 15 Q What other chapters are you an author on? 16 A Chapter 6. 17 Q What was your participation in Chapter 6? 18 A The same as Chapter 5. I authored it. 19 Dr. Richardson reviewed it. 20 Q Are there any other chapters in the annual 21 report for 1991 that you authored? 22 A Chapter 8. 23 Q And your participation in 8 was what? 24 A The same. I authored it. Dr. Richardson 25 reviewed it. 40ÿ 1 Q Right. And Chapter 9, is that the same, or 2 is that someone else? 3 A That's someone else. 4 Q So you have three -- 5 A Uh-huh. 6 Q -- that you participated in. 7 Are there any -- there are no other drafts 8 of those that exist? 9 A Let me just clarify one thing. 10 Q All right, yes. 11 A Chapter 8 also is related to this particular 12 paper, the "Wetlands" article. 13 Q Rader Exhibit No. 3 and those exhibits -- 14 A Right. 15 Q -- related to it -- 16 A Yeah, yeah. 17 Q -- in the same way as before? 18 A Right. 19 Q But there are no drafts of these particular 20 annual reports? 21 A No, none that I still have. 22 Q All right. I'd like to move to annual 23 report -- 24 MR. HYDE: Did we mark that as an exhibit, for 25 the record, or was that just a discussion about 41ÿ 1 its relationship? 2 MS. PONZOLI: This one? 3 MR. HYDE: Yes. 4 MS. PONZOLI: Well, Mr. Hyde, I -- 5 MR. HYDE: I just wanted to know for clarification. 6 MS. PONZOLI: I am content to put in copies of 7 the Duke Wetland Center annual reports August, 8 1991, and October, 1992, but they're so 9 voluminous. It's going to cost us a fortune. 10 MR. HYDE: That's okay. 11 MS. PONZOLI: Everyone has copies of them, and I 12 don't think there's any dispute, when we go to 13 trial, that this is an annual report 1991 and 14 this is an annual report 1992. I can't imagine 15 it would be a matter in dispute. 16 MR. HYDE: It isn't. 17 MS. PONZOLI: I don't honestly care to introduce 18 them. 19 Q Do you have reviews of the other chapters, 20 Dr. Rader, in addition -- we talked about the reviews 21 throughout of Chapter 5 -- or were associated with 22 Chapter 5. Were there similar documents on Chapter 6 or 23 Chapter 8? 24 MR. HYDE: May I ask for a clarification. You 25 mean reviewers' comments? 42ÿ 1 MS. PONZOLI: Right, or reviews of those 2 chapters, either one. 3 THE WITNESS: Yeah. You mean -- no. That's -- 4 all I have is that. What I had originally was 5 probably -- if I had hard copies, were probably 6 thrown away. 7 Q BY MS. PONZOLI: And you didn't retain them 8 on disks or anything? 9 A No, not that I can remember. 10 Q Is there a policy of not retaining some of 11 those documents, Dr. Rader? 12 A None that I know of, no, no. 13 Q Moving to the annual report of the Duke 14 Wetland Center for October, 1992 -- I'll hand you a clean 15 copy, Dr. Rader, to assist you -- I'd like to identify 16 those chapters that you helped to author, and I'd like 17 you to tell me your participation in those particular 18 chapters. 19 A Chapter 5. 20 Q Were you the principal author on Chapter 5? 21 A Yes. 22 Q And are the same reviews that exist in 23 relation to Rader Exhibit No. 3 related to Chapter 5 and 24 the annual report? 25 A I don't understand. 43ÿ 1 Q Are there any reviews of Chapter 5 or any -- 2 MR. HYDE: I'm still unsure about what we're 3 talking about in context of the reviews. Do you 4 mean anonymous reviewers' comments? 5 MS. PONZOLI: No. They don't even have to be 6 anonymous? They can be -- 7 Q Did Dr. Craft write a review of Chapter 5, 8 and you somewhere have such a document, or you had such a 9 document at one time? 10 A Oh, no. Maybe it would help if I 11 explained -- 12 Q Go ahead. 13 A -- a little bit of how this did work. 14 If I sent up a chapter -- 15 Q Right. 16 A -- then we would probably make corrections 17 over the telephone, and Curt would call and say, what 18 about that sentence? 19 What do you think? Okay. Yeah. We can do 20 that. The correction was made and sent back up, and I 21 try not to hold onto -- you know, it would stack up to be 22 a mile high, and it would fill up my folder. 23 Q Sure. 24 A So I don't hang on to all that stuff. So if 25 it's a publication, that's a different matter. As you 44ÿ 1 can see, I hang onto those, the reviewers' comments on 2 publications. 3 Q So the annual reports do not go through the 4 same level of review that a publication would go through. 5 Is that fair? 6 A No, it does not. 7 Q Are the annual reports reviewed by outside 8 reviewers, outside the team of investigators who are 9 listed as authors? 10 A Not that I know of. 11 Q Do the team of authors review each -- the 12 principal investigators -- I apologize. Let's say the 13 coprincipal investigators -- do you review each others' 14 chapters or articles? 15 A We can. 16 Q Did you for the 1991, August '91, annual 17 report? Did you review any of the other chapters? 18 A '91? 19 Q Yes, sir. 20 A No, not that I recall. 21 Q Did you review any of the other chapters for 22 the annual report for 1992? 23 A Huh-uh, no, I didn't. 24 Q Have you read all of these various chapters 25 in '91 and '92? 45ÿ 1 A '91, yes; '92, no. 2 Q If I understand my reading of the table of 3 contents, in your answer, Chapter 5 is the only chapter 4 to which you contributed in the annual report 1992. Is 5 that accurate? 6 A Yes. 7 Q You are likewise listed as a coprincipal 8 investigator on the annual report appendices to the 9 September, 1991, report. I would like for you to 10 identify for me, Dr. Rader -- it lists appendices that, I 11 believe, each contain data. I would like you to 12 identify -- I'll hand you the table of contents -- those 13 appendices which reflect your data. 14 A Just to make sure -- so that would be 15 appendix 5-1, 5-2, 6-1, 6-2, 6-3, 6-4. 16 Q 5-1, -2, 6-1, -2, -3, and -4? 17 A Uh-huh. 18 Q Okay. 19 A Yes. 20 Q Did you collect some of the data for any of 21 the other appendices in this Volume II to the '91 report? 22 A Let me look at them a little closer, then. 23 Yes. 24 Q Which ones did you collect data for? 25 A I did for the water chemistry data. 46ÿ 1 Q Which is appendix? 2 A Appendix 1-1, looks like. Some data there. 3 That's it. 4 Q Thank you. 5 MR. HYDE: That's Volume II for 1992? 6 MS. PONZOLI: No. That's Volume II for 1991. 7 MR. HYDE: Okay. 8 Q BY MS. PONZOLI: Is there going to be a 9 Volume II for 1992, Dr. Rader? 10 A An appendix volume? 11 Q Yes, sir. 12 A Yes, there is. 13 Q But it's not out in publication yet? 14 A I don't know. I don't know where that's at. 15 MS. PONZOLI: Jim, do you know? 16 DR. GRIMSHAW: I have no idea. 17 THE WITNESS: '92, as you know, the annual report 18 has just come out -- what? -- two, three weeks 19 ago. So I don't think the appendix is out. 20 Q BY MS. PONZOLI: Do you have any idea how 21 soon it would come out? 22 A No. 23 Q Do you have any idea how long they normally 24 lag behind the annual report? 25 A No, not really. They do that at Duke. 47ÿ 1 Q So now we really have gone through all your 2 publications on the Everglades -- 3 A I think so. 4 Q -- to the best of your recollection? 5 A Yep, yep, yep. 6 Q Okay. The next category of documents is, 7 "All documents relating to research done in conjunction 8 with or under the direction of Dr. C.J. Richardson and/or 9 the Duke Wetlands Center." I wasn't going to forget 10 anything, Dr. Rader. I mean, I covered it ten different 11 ways. 12 A That's why I just gathered it all up in a 13 box and said, "Here it is." 14 Q I could have sent a Subpoena Duces Tecum and 15 said, "Send everything," but they would have said it 16 wasn't sufficient. 17 MR. HYDE: We might as well start doing that. 18 MS. PONZOLI: I think that's how Dr. Grimshaw 19 feels about the district. 20 MR. HYDE: That's certainly the way Dr. Parks 21 responded. 22 Q BY MS. PONZOLI: You have a number of more 23 documents. I would ask you, Dr. Rader, to look over the 24 list, and if we can identify documents that fit within a 25 specific category, let's go back and put them under -- 48ÿ 1 for example, if you have, under No. 12, field notes that 2 we could pull aside and say these are my field notes, 3 then we'll pull those and put them as identified 4 documents or proposals or laboratory notes, and then 5 we'll just go back to the generic Everglades documents 6 that are requested under several categories. 7 A Should I just start with that stack, work 8 through it? That would be easier rather than me working 9 from this category and going to the stack. Maybe I can 10 just start with these documents and say it fits here, 11 fits there. 12 Q Why don't we do that off the record, and 13 then we'll put them in piles so it will be easier for us 14 to deal with and try to make sense of what you've done -- 15 A Okay. 16 Q -- which is the real purpose of identifying 17 these documents. 18 A You want to do that now? 19 MS. PONZOLI: Let's go off the record. 20 (Rader Exhibits 20(1-39), 21(1-3), 21 22(1-10), 23(1-38), 24(1-75), 25(1-174), 22 26(1-113), 27(1-17), 28(1-57), 29, 30(1-62), 23 31(1-210), 32(1-60), 33(1-7), 34(1-18), and 24 35(1-5) were marked for identification by the 25 reporter and are included herewith.) 49ÿ 1 (Discussion off the record.) 2 Q BY MS. PONZOLI: Dr. Rader, I'm going to 3 hand you Rader Exhibit No. 20. Can you identify this, 4 please. 5 A Yes. It's site notes and some data 6 collected each time we visited the sites on the -- what 7 we call the "gradient study," or the "nutrient-enrichment 8 study." It also includes coordinates for each one of 9 the -- latitudinal, longitudinal coordinates for each 10 site. 11 Q Dr. Rader, I'm going to hand you what has 12 been marked as Johnson Exhibit No. 13 and ask you if 13 these are the sites for the gradient study? 14 A Yes. These are the sites for 15 Jerry Qualls's -- that's not exactly accurate. Yes, 16 these are the sites for the gradient study. I just used 17 part of them; so I did not collect invertebrate data -- 18 Q Right. 19 A -- and my data on all the sites -- should I 20 identify those. 21 Q Yes, you should. 22 We should probably take a short little 23 break, and let me Xerox a copy of that so the Johnson 24 Exhibit is not altered, but we'll make it a Rader Exhibit 25 in this deposition. 50ÿ 1 A Okay 2 (Short recess.) 3 (Rader Exhibit 36(1-2) was marked 4 for identification by the reporter and is 5 included herewith.) 6 Q BY MS. PONZOLI: Dr. Rader, I've handed you 7 Johnson Exhibit No. 13, which, you indicate, is the 8 gradient study to which you were referring, but you did 9 not use all of these sites for your work. So I would ask 10 you to please circle those locations that you did use on 11 what will now be Rader No. 36. 12 A Okay. 13 Q You have circled from the second dot down on 14 10C six -- the six consecutive sites under 10C and the 15 first two under 10D. Is that accurate? 16 A That is, yes. 17 Q That is where you have done your 18 invertebrate work; is that right? 19 A Right, right. Do you want that to go with 20 these? 21 Q This is the work -- Rader Exhibit No. 20 22 reflects the coordinates and the data that have been 23 collected at these eight sites reflected on Rader No. 36? 24 A Yeah. It's a -- it's not all the data 25 certainly, but it reflects some physical-chemical data 51ÿ 1 that I collected at each site. 2 Q Is the rest of the data among the pieces we 3 have not come to yet? 4 A Yes. 5 Q You had indicated off the record previously 6 that your data for this invertebrate work -- and you'll 7 have to tell me -- the oxygen work also -- I don't 8 know -- broke into roughly preliminary data, second-step 9 data, and third-step data. Is that accurate? 10 A Yes, and maybe it would be good to add a 11 fourth category, a summary category, summarizing the 12 data. 13 Q All right. I would like you to I.D. the 14 data as we go through, whether it fits into one of these 15 four categories. 16 A Okay. 17 Q So Rader Exhibit 20 would fit into which 18 category? 19 A Well, let's see. It fits best, I guess, 20 into final data -- or what was our -- 21 Q Summary data, you had said. The last would 22 be summary data. 23 A Yeah. It's -- this isn't really a summary. 24 These are the actual data sheets of the physical-chemical 25 data. Okay? 52ÿ 1 Q Yes. 2 A And the summary of which is found in the 3 appendix in the second annual report by Jerry Qualls. 4 Okay. I collected some of that. You asked if there was 5 any other data that you collected. That is what I was 6 talking about. It's pH and temperature and water depth 7 at the various transects; so it doesn't really fit into 8 the categories we discussed, I'm afraid. 9 Q I just want to clarify something on Rader 10 Exhibit No. 36. Under 10D, under structure 10D -- 11 A Yes. 12 Q -- you did not use the first site; is that 13 accurate? 14 You intended to skip that first site; is 15 that accurate? 16 A No. I did use it. 17 Q Well, there appears on Johnson No. 13 to be 18 a dot, a site almost directly on the Hillsboro Canal at 19 10D, and the question exists in my mind: Did you use 20 that first dot or the next one down as a site? 21 A I think that first dot is supposed to 22 indicate a gate. 23 Q All right. That is only a gate. That is 24 not a site used -- 25 A No. 53ÿ 1 Q -- for anyone's research, and that's why you 2 skipped it under 10C, also? 3 A Yes. That's just a gate. 4 Q So your initial sites would have been how 5 far down roughly -- do you recall? -- from the gates in 6 kilometers? 7 A Roughly a kilometer and a half, I believe. 8 The reason I say "I believe" is because the sites were 9 chosen prior to my starting on the project. 10 Q So you were using -- 11 A The actual sites. 12 Q Doctor whose sites? 13 A I believe Dr. Qualls and Dr. Richardson 14 chose the sites together, probably in conjunction with 15 Dr. Craft -- the three of them. 16 Q Okay. Are those sites -- 17 A I'm not sure. 18 Q Are the coordinates actually listed in Rader 19 Exhibit No. 20, where we would find the first site? 20 A They are, yes. 21 Q And they're easy to locate. They're on the 22 first page. It just says "Site 1, and we'll have 23 coordinates? 24 A Yep. Latitude, longitude. 25 Q Okay. Very good. Thank you. Is there any 54ÿ 1 more information contained in Rader composite Exhibit 2 No. 20 that we haven't identified? 3 A Site notes, what it is and some -- some 4 physical-chemical data collected at each site. 5 Q Thank you. I'm going to hand you Rader 6 Exhibit No. 21 and ask you to identify it, please. 7 A These are samples, invertebrate samples, 8 collected in the Hillsboro Canal, right at the C-gate in 9 four habitat types. 10 Q Do these fit into your preliminary category 11 of data? 12 A These categories are throwing me curves now. 13 Q You created them. 14 A Yeah, yeah. They work well with most of the 15 invertebrate data. It's -- it's just data that were 16 collected to supplement the gradient study; so maybe it 17 would be best to call it "supplementary data." 18 Q They're in the Hillsboro Canal; is that 19 accurate? 20 A Yes, right in the Hillsboro Canal. 21 Q Do you know where? 22 A Yes. Right at the -- we could hit the 23 10 gate, 10C gate, with a rock. Right there. 24 Q Within how many meters would you say? Three 25 or four meters or more? 55ÿ 1 A I don't know. It depends on how sore my arm 2 is. About a hundred meters. 3 Q A hundred meters? 4 A Yes. 5 Q East or west? 6 A East and west. 7 Q Maybe two -- 8 A So we probably traveled a hundred to 9 two hundred meters east of the gate, a hundred to 10 two hundred meters west of the gate, sampling the various 11 habitat types. 12 Q What different habitat types were there 13 there? 14 A Phragmites beds and then the floating water 15 lettuce or hyacinth, and then the grassy areas that were 16 inundated -- I believe it to be panicum -- was the 17 emergent macrophyte. 18 Q Is that data collection reflected on the 19 sheets? 20 A May 1992. 21 Q Who was with you? 22 A Bob Johnson. 23 Q I'm going to hand you Rader Exhibit No. 22. 24 A These really fall into miscellaneous notes 25 category. 56ÿ 1 Q Of what? 2 A Of sorting procedures used in sorting 3 invertebrates. 4 Q As part of your identification of the -- 5 A Process, exactly. 6 Q Right. 7 A As part of the identification process, 8 uh-huh. 9 Q Rader Exhibit No. 23, can you identify that 10 composite exhibit? 11 A Yes. This is the inventory of samples 12 taken, a checklist of what samples were taken when and 13 where and when they were sorted. 14 Q Then this reflects dates? places? sites? 15 A All of that, yes -- replicates. 16 Q Is this second step? Is this in the second 17 or third step of data? It doesn't sound preliminary. 18 A Again, it doesn't really fit that category. 19 Q All right. 20 A All it falls into is the inventory of data 21 samples. 22 Q Rader Exhibit No. 24. It has "Preliminary 23 Analyses" labeled on the top. 24 A Yes. So I was asked to summarize these 25 data, and this was simply preliminary analysis before all 57ÿ 1 sampling data had been completed. 2 Q Right. Is there an indication of when that 3 preliminary analysis was done, in there? 4 A Let me see if I can -- at different times, 5 I'm afraid. Some of it was done in April of this year. 6 Q Right. Were you trying to sort of put these 7 data in different categories? What sort of category are 8 you using to determine which category you put them in? 9 A The categories being whether it's 10 preliminary and whether it's second step, whether it's 11 the final -- simply using whether the identifications 12 made were, to my satisfaction, complete at the time that 13 the data were written down or outlined. For an example, 14 one would go through and sort invertebrates as a first 15 step. 16 Second step, one goes through and starts to 17 identify them. Question marks are indicated on 18 identifications that one is not sure of, and you go 19 through it a second time. You might go through it a 20 third time. 21 You might go through it as many times as it 22 takes until you're sure the identifications you've made 23 are correct and that the identification made at this 24 month and your identifying this organism here this month 25 is the same this month and this month. Are they indeed 58ÿ 1 the same. It's a constant process of checking and 2 rechecking yourself. So it's a continuous process. 3 And you're asking me -- I've divided them 4 arbitrarily into -- first step, preliminary, and so forth 5 is an arbitrary designation of a continuous process. 6 Q Preliminary like being your first cut, the 7 second and third being much more refined cuts -- 8 A More refined -- 9 Q -- the ones that you're identifying? 10 A Yes, leading up to the summary sheet which 11 I'll show you, which is the one that probably is the 12 final copy, the final cut. 13 Q And you have the most confidence in your 14 summary sheet of any of these; is that accurate? 15 A Yes. 16 Q So have we finished identifying Rader 17 No. 24, or had you identified Rader No. 24? I'm not 18 clear. 19 A Yeah. These are preliminary analyses. 20 These are data analyses. These are analyses of the data 21 calculating diversity, for example in the various sites 22 in April -- I think it's mostly April; so it is not -- 23 what I'm saying is that it is not the final analysis. 24 Q Can you identify Rader No. 25, which has 25 "Preliminary" handwritten on it? Is that your 59ÿ 1 handwriting? 2 A Yes, yep. This would constitute a first cut 3 through the data. 4 Q Rader Exhibit No. 26, which has "2nd Step," 5 is that your handwriting? 6 A Uh-huh. 7 Q It's the same data as No. 25 but now under 8 further analysis? 9 A Right. I was starting to refine it. 10 Q Do you have a high degree of confidence that 11 a second step is pretty accurate? How much refinement 12 goes on after that second step? Are you able to quantify 13 that? 14 A Not really, not quantify it. 15 Q Rader No. 27, what is that? 16 A This is a summary of the data, primarily 17 based on this second step. 18 Q On Rader No. 26? 19 A For the most part. For example -- well, 20 that's what it is. 21 Q "Well, for example," what? 22 A Well, for example, the chironomids have not 23 been identified to species level yet. 24 Q You'll have to spell that for her. It will 25 save her a lot of time if you'll do that right now. 60ÿ 1 A C-h-i-r-o-n-o-m-i-d-s . 2 Q Can you identify Rader No. 28? 3 A This is one of the final summaries and 4 analysis of the data. 5 Q The same data we've been looking at 6 through -- 7 A Different -- yeah. 8 Q How do you mean "different"? 9 A There's many ways of looking at the data. 10 Q This is a different way of looking at the 11 same collection that you've done -- 12 A Exactly. 13 Q -- in 24, 25, et cetera? 14 A Yes, and this is getting close to a final 15 one. 16 Q All right. Rader No. 29, can you identify 17 that? 18 A Yep. 19 A There is the -- this is the -- these are 20 various calculations of the data. For example, if you -- 21 I don't know if you want to separate these out or not, 22 but the point to all that is just to calculate what is 23 called "percent similarity" between the sites. 24 Q I would like to subdivide, then, Rader 25 No. 29 to the point where you have indicated the first 61ÿ 1 half of that composite exhibit and band that together as 2 the first half of a composite exhibit and then band 3 together -- does the second half all fit together in a 4 similar fashion? 5 A Uh-huh. 6 Q And would you identify the second half, 7 also. This does not go to the beginning. What you have 8 identified does not go to the very beginning? 9 A This is different from that (indicating). 10 Q We've got to figure out a way to talk about 11 it. Shall we pull this out and make a separate exhibit? 12 A I would. 13 Q Let's go off the record and mark it 14 separately. 15 (Rader Exhibit 37(1-63) was marked 16 for identification by the reporter and is 17 included herewith.) 18 (Discussion off the record.) 19 MS. PONZOLI: Let's go back on the record. 20 Rader No. 27, Mr. Hyde, your question was 21 is that the summary of the data? 22 MR. HYDE: Yes. 23 MS. PONZOLI: Is that what you had said? 24 MR. HYDE: I thought we were on 29. 25 MS. PONZOLI: We were on 29. We were on 62ÿ 1 composite 29, but there was a subpart of 2 composite 29 which Dr. Rader now identifies as 3 really having a separate rationale, and he 4 suggests that to understand the data, it would be 5 well to separate it out. 6 Q Is that accurate -- 7 MR. HYDE: All right. 8 Q BY MS. PONZOLI: -- Dr. Rader? 9 A Yes. 10 Q So Rader No. 37, if you'll just tell us one 11 more time, is what? 12 A Is percent similarity calculations between 13 sites. 14 MR. HYDE: The way you threw me off -- you said 15 "27" instead of "37." 16 MS. PONZOLI: Oh, I'm sorry. Is that what I 17 said? The record will reflect Rader 37. 18 Q Dr. Rader, we're still now with 19 Rader Exhibit No. 29, composite exhibit. Did you 20 indicate there was another subpart of Rader 29 21 that should be separated out? 22 A Yes. This is rarity calculations, 23 calculating the rarity index. 24 MS. PONZOLI: All right. Rader No. 38 will be 25 the rarity index. 63ÿ 1 (Rader Exhibit 38(1-18) was marked 2 for identification by the reporter and is 3 included herewith.) 4 Q BY MS. PONZOLI: Do we have another subset 5 of 29? 6 A Yeah. I think it would be good to separate 7 it too. It's a summary of the data sent to us by 8 Jerry Qualls on water quality along the gradient at those 9 sites that I used. 10 MS. PONZOLI: That will be Rader Exhibit No. 39. 11 (Rader Exhibit 39(1-10) was marked 12 for identification by the reporter and is 13 included herewith.) 14 Q BY MS. PONZOLI: Do we have another subset? 15 I feel my life getting more complicated. 16 A Yeah. I think, seeing as we started along, 17 it would be easier, you know -- 18 Q Right. 19 A -- for one seeking to understand it. 20 This is a summary tables of these data. 21 MS. PONZOLI: So Rader No. 40 will be the summary 22 tables of the data we've been discussing. 23 Q Now, this is not Dr. Qualls's data? This is 24 your invertebrate data? 25 A Exactly. 64ÿ 1 MR. HYDE: To make the record clear, which 2 exhibits are we talking about Exhibit 40 3 referring to? 4 MS. PONZOLI: Rader Exhibit No. 40 is his summary 5 data. 6 Q Is that accurate, Dr. Rader? 7 A Yes. Those are summary tables of the data 8 by site and month. 9 (Rader Exhibit 40(1-62) was marked 10 for identification by the reporter and is 11 included herewith.) 12 THE WITNESS: It might be good to include this 13 with that (indicating). This is just -- it's -- 14 it's similar. It's just calculating the 15 representation of coleoptera, which are beetles, 16 and so forth. 17 Q BY MS. PONZOLI: Why don't we make that a 18 separate exhibit. 19 A Okay. 20 Q That will be Rader Exhibit No. 41. Do we 21 still have a 29? 22 A It beats me. I haven't been keeping track 23 of the numbers. 24 Q I think we lost 29, didn't we, in the 25 process? 65ÿ 1 A Did we break 29 up? 2 Q Did your cover sheet have anything on it 3 that we had? 4 A Oh, sorry. 5 Q But is there anything -- no. We've taken 29 6 and subdivided it totally. 7 I guess I suggest that, just so the record 8 is clear, we'll just include 29 and indicate that 9 it was subdivided totally so that it won't be 10 lost. There won't appear to be a missing 11