187 1 DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA 2 SUGAR CANE GROWERS COOPERATIVE ) 3 OF FLORIDA; ROTH FARMS, INC.; and) WEDGWORTH FARMS, INC., ) 4 Petitioners, ) DOAH Case No. vs. ) 92-3038 5 ) SOUTH FLORIDA WATER MANAGEMENT ) 6 DISTRICT, an agency of the State ) VOLUME II of Florida; et al., ) 7 Respondents. ) _________________________________ 8 FLORIDA SUGAR CANE LEAGUE, INC..;) UNITED STATES SUGAR CORPORATION; ) 9 and NEW HOPE SOUTH, INC., ) Petitioners, ) DOAH Case No. 10 ) 92-3039 vs. ) 11 ) SOUTH FLORIDA WATER MANAGEMENT ) 12 DISTRICT, an agency of the State ) of Florida; et al., ) 13 Respondents. ) _________________________________ 14 FLORIDA FRUIT AND VEGETABLE ) ASSOCIATION; LEWIS POPE FARMS; ) 15 W.E. SCHLECHTER & SONS, INC., ) and HUNDLEY FARMS, INC., ) 16 Petitioners, ) DOAH Case No. ) 92-3040 17 vs. ) ) 18 SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, an agency of the State ) 19 of Florida; et al., ) Respondents. ) 20 _________________________________ DEPOSITION OF HANLEY K. SMITH 21 Taken before Barbara Bolton, Registered Professional Reporter and Notary 22 Public in and for the State of Florida at large, pursuant to Notice of Taking Deposition filed in 23 the above cause. - - - 24 Tuesday, March 2, 1993 319 Clematis Street 25 West Palm Beach, Florida 9:00 A.M. - 4:40 P.M. 188 1 - - - APPEARANCES: 2 3 ON BEHALF OF THE PETITIONERS FLORIDA SUGAR CANE LEAGUE, INC., UNITED STATES 4 SUGAR CORP., AND NEW SOUTH HOPE, INC.: 5 PEEPLES, EARL & BLANK, P.A. ONE BISCAYNE TOWER, SUITE 3636 6 TWO SOUTH BISCAYNE BOULEVARD MIAMI, FLORIDA 33131 7 BY: WILLIAM L. EARL, ESQUIRE 8 9 ON BEHALF OF THE INTERVENOR, UNITED STATES OF AMERICA, DEPARTMENT OF Justice 10 DEPARTMENT OF Justice 11 155 S. MIAMI AVENUE MIAMI, FLORIDA 33130 12 BY: THOMAS A. W. FITZGERALD, ESQUIRE 13 Also present: Kim McNally, Legal Assistant 14 15 I N D E X 16 WITNESS DIRECT CROSS REDIRECT RECROSS 17 HANLEY K. SMITH 18 BY MR. EARL 194 19 20 E X H I B I T S 21 PLAINTIFF'S NUMBER DESCRIPTION PAGE 22 12 "EFFECT OF GRASS CUTTING BELOW 23 STRUCTURES 12(B,C, AND D)" 250 24 13 "EVERGLADES SWIM PLAN" VOLUME III, TECHNICAL REPORT, PART B 272 25 189 1 14 AGENDA, PRESENTATION OF SCIENTIFIC BACKGROUND OF THE LOX/EVER LAWSUIT, 2 JANUARY 26, 1990 272 3 15 EVERGLADES NATIONAL PARK MONITORING PROGRAM DATED JANUARY 15, 1987 272 4 16 LETTER DATED DECEMBER 11, 1989 TO 5 HANLEY K. SMITH FROM WILLIAM W. WALKER, JR. 272 6 17 ROUTING AND TRANSMITTAL SLIP DATED 7 SEPTEMBER 14, 1989 TOGETHER WITH LETTER DATED SEPTEMBER 12, 1989 TO 8 JOHN R. WODRASKA FROM JAMES L. GARLAND 272 9 18 LETTER DATED SEPTEMBER 7, 1989 TO 10 MR. JOHN R. WODRASKA FROM JAMES L. GARLAND 272 11 19 HANDWRITTEN NOTES 272 12 20 STATISTICAL ANALYSIS OF ENP 13 HISTORICAL WATER QUALITY DATA 272 14 21 MEMORANDUM FOR THE RECORD DATED MARCH 13, 1990 BY PETE MILAM AND 15 HANLEY K. SMITH 272 16 22 REPORT OF HANLEY K. SMITH 272 17 23 FAX TRANSMITTAL DATED 10/11/90 TO JOHN MOULDING FROM DEWEY WORTH 272 18 24 LISTED OF SUGGESTED CORRECTIONS 272 19 25 MEMORANDUM FOR RECORD DATED APRIL 20 9, 1990 FROM HANLEY K. SMITH 272 21 26 ROUTING AND TRANSMITTAL SLIP DATED SEPTEMBER 1, 1989 TO BO FROM 22 MCADAMS TOGETHER WITH ENVIRONMENTAL RESOURCES RESPONSES TO SFWMD 23 EVERGLADES SWIM PLAN 272 24 27 HALF PAGE MEMO CONTAINING RECOMMENDATIONS FROM "BO" 272 25 190 1 28 MEMORANDUM FOR RECORD DATED APRIL 9, 1990 FROM HANLEY K. SMITH 272 2 29 REPORT OF HANLEY K. SMITH 272 3 30 MEMORANDUM DATED MARCH 1, 1990 TO 4 CONSTANCE B. HARRIMAN, JUANA S. WILCHER, JOHN S. DOYLE, JR. GREER 5 C. TIDWELL AND DEXTER W. LEHTINEN FROM RICHARD B. STEWART 272 6 31 MEMORANDUM DATED MARCH 1, 1990 TO 7 CONSTANCE B. HARRIMAN, JUANA S. WILCHER, JOHN S. DOYLE, JR. GREER C. 8 TIDWELL AND DEXTER W. LEHTINEN FROM RICHARD B. STEWART 272 9 32 HANDWRITTEN COVER SHEET TO SAM 10 COWAN AND EDDIE SALEM FROM LET MON LEE TOGETHER WITH COMMENTS OF 11 THE UNITED STATES TO FLORIDA DER ON THE SWIM PLAN FOR THE EVERGLADES 272 12 33 FAX TRANSMITTAL TO DR. RON JONES 13 FROM STEVEN A. HERMAN DATED MAY 29, 1990 ATTACHING MEMORANDUM DATED 14 MAY 29, 1990 TO CONSTANCE B. HARRIMAN, LA JUANA S. WILCHER, DR. G. EDWARD 15 DICKEY, GREER C. TIDWELL AND DEXTER W. LEHTINEN FROM STEVEN A. HERMAN 272 16 34 MEMORANDUMD DATED JUNE 1, 1990 TO 17 CONSTANCE B. HARRIMAN, LA JUANA S. WILCHER, DR. G. EDWARD DICKEY, GREER 18 C. TIDWELL AND DEXTER W. LEHTINEN FROM RICHARD B. STEWART 272 19 35 FAX TRANSMITTAL TO EDDIE SALEM AND 20 JOHN BURNS FROM LET MON LEE TOGETHER WITH MEMORANDUM FOR THE DIRECTOR OF 21 CIVIL WORKS FROM ROBERT W. PAGE 272 22 36 FOUR PAGES CONTAINING GRAPHS 272 23 37 LETTER DATED DECEMBER 22, 1989 TO MIKE SOUKUP FROM THOMAS K. 24 MAC VICAR 272 25 191 1 38 LETTER DATED SEPTEMBER 15, 1989 TO JOHN WODRASKA FROM DAVID L. 2 FERRELL 272 3 39 401 STA AURAS STATISTICAL SUMMARY FOR WATER QUALITY WITH STATISTICS 4 DATED DECEMBER 21, 1989 272 5 40 LETTER DATED JANUARY 9, 1990 TO COLONEL BRUCE A. MALSON FROM DALE 6 TWACHTMAN 272 7 41 MATERIAL REGARDING EVERGLADES AGRICULTURAL AREA - MAJOR CANALS AND 8 PUMPING STATIONS 272 9 42 DOCUMENT FROM A.A. FISIKELLI, EVERGLADES COORDINATING COUNCIL, 10 RE RECOMMENDATIONS REGARDING PLAN 272 11 43 LETTER DATED SEPTEMBER 13, 1989 TO PETE RHOADS FROM STEVE TERRY 272 12 44 INTEROFFICE MEMORANDUM DATED SEPTEMBER 13 12, 1989 TO PEGGIE MATHEWS FROM HERBERT H. ZEBUTH 272 14 45 LETTER DATED SEPTEMBER 12, 1989 TO 15 JOHN R. WODRASKA FROM JAMES L. GARLAND 272 16 46 LETTER DATED SEPTEMBER 6, 1989 TO 17 JOYCELYN BRANSCOME FROM BURKETT S. NEELY, JR. 272 18 47 LETTER DATED SEPTEMBER 11, 1989 TO 19 JOHN R. WODRASKA FROM THE UNITED STATES DEPARTMENT OF THE INTERIOR 272 20 48 LETTER DATED SEPTEMBER 12, 1989 TO 21 PETE RHOADS FROM ANTHONY J. CLEMENTS 272 22 49 LETTER DATED SEPTEMBER 14, 1989 23 TO PETER RHOADS FROM H.J. WOODWARD 272 24 50 MEMORANDUM DATED SEPTEMBER 13, 1989 TO JOHN R. WODRASKA FROM FRANK LUND 272 25 192 1 51 EVERGLADES SWIM PLAN PUBLIC MEETINGS SUMMARY 272 2 52 EVERGLADES SWIM ADVISORY COMMITTEE 3 MEETING, SEPTEMBER 6, 1989 272 4 53 ROUTING AND TRANSMITTAL SLIP DATED SEPTEMBER 25, 1989 TO BO SMITH FROM 5 RON HILTON 272 6 54 LETTER DATED SEPTEMBER 21, 1989 TO SWIM PLAN ADVISORY COMMITTEE MEMBERS 7 FROM JOYCELYN BRANSCOME 272 8 55 ARTICLE FROM PALM BEACH POST OF DECEMBER 13, 1989 272 9 56 ARTICLE FROM SUN-SENTINEL OF DECEMBER 10 13, 1989 272 11 57 LIST OF GOVERNING BOARD MEMBERS 272 12 58 REPORT OF HANLEY K. SMITH 272 13 59 LIST OF RECOMMENDATIONS 272 14 60 401STA AURAS STATISTICAL SUMMARY FOR WATER QUALITY WITH STATISTICS 15 DATED JANUARY 17, 1990 272 16 61 ROUTING AND TRANSMITTAL SLIP DATED APRIL 19, 1990 TO LLOYD PIKE, BO 17 SMITH, STU APPELBAUM, LEWIS HORNING AND CAROL WHITE FROM RON HILTON 272 18 62 MEMORANDUM RE DEPARTMENT OF THE 19 INTERIOR'S PROPOSED SOLUTION 272 20 63 ROUTING AND TRANSMITTAL SLIP DATED MAY 3, 1990 TO BO SMITH FROM RON 21 HILTON 272 22 64 ROUTING AND TRANSMITTAL SLIP DATED SEPTEMBER 1, 1989 TO "BO" FROM 23 "MCADAMS" 272 24 65 LIST OF RECOMMENDATIONS 272 25 66 MEMORANDUM DATED JANUARY 9, 1990 RE ENP DATA ANALYSIS, WILLIAM 193 1 WALKER 272 2 67 HANDWRITTEN NOTES 272 3 68 MAP 284 4 69 FINAL ENVIRONMENTAL IMPACT STATEMENT 326 5 6 7 8 - - - 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 194 1 P R O C E E D I N G S 2 - - - 3 THEREUPON, 4 HANLEY K. SMITH, 5 being by the undersigned Notary Public first duly 6 sworn, was examined and testified as follows: 7 THE WITNESS: I do. 8 DIRECT EXAMINATION CONTINUED 9 BY MR. EARL: 10 Q. Dr. Smith, does your job require you 11 to be knowledgeable regarding factors that affect 12 Everglades vegetation successions and dynamics in 13 the Everglades? 14 A. That is a desirable attribute of my 15 job. It would not be required. It would not be 16 an element that you would check off if you were 17 hiring someone in my position. I'm essentially a 18 manager. 19 Q. Are you familiar with factors that 20 affect Everglades vegetation dynamics? 21 A. I'm familiar with factors that 22 affect vegetation dynamics. I have not done, 23 personally done research in the Everglades. 24 Q. But you've reviewed studies and 25 talked with your peers about the Everglades 195 1 vegetation, have you not? 2 A. Yes. 3 Q. Are you familiar with Everglades 4 wildlife and the factors that affect their 5 population trends? 6 A. Familiar is a relative term. 7 Relative to the rest of the population, certainly 8 I'm very familiar. Relative to those who are 9 professional biologists working in the 10 Everglades, I am not as familiar, but I'm 11 certainly a knowledgeable individual in that 12 area. I'm not an expert if I can draw that 13 distinction. 14 Q. Again, you have reviewed studies and 15 talked to your peers about factors affecting 16 Everglades wildlife. Correct? 17 A. Yes. 18 Q. How about rainfall quantity and 19 quality in the Everglades? Do you have any 20 knowledge of that? 21 A. Very limited knowledge. I've read 22 one or two -- I've read a little bit, though I 23 don't recall where, on atmospheric sources of 24 phosphorus if that's what you're getting at. 25 Basically I know enough about that to know that 196 1 it's not -- that itself is not a well-quantified 2 science. 3 Q. You're familiar with the several 4 purposes of the project, are you not? 5 A. Yes. 6 Q. Have you ever had your deposition 7 taken before? 8 A. I had my deposition taken a number 9 of years ago. 10 Q. Just once? 11 A. Yes. 12 Q. And what was the circumstance of 13 that deposition? 14 A. It was a lawsuit regarding a 15 reservoir in Missouri. That was about 1976. 16 Q. Is that the only other time you've 17 had a deposition taken other than today? 18 A. I believe so. I've answered 19 interrogatories from time to time. 20 Q. What were the issues in the Missouri 21 reservoir? What was your purpose in testifying? 22 A. The issues were the adequacy of the 23 environmental impact statement for the Merrimack 24 Park Reservoir. 25 Q. And you were testifying on behalf of 197 1 whom? 2 A. The Corps of Engineers. 3 Q. Have you ever testified in a court- 4 room? 5 A. No. 6 Q. Have you ever qualified as an expert 7 witness in any forum or proceeding? 8 A. No. 9 Q. What, if any, professional papers 10 have you presented, prepared or published? 11 A. A number but not on this issue, 12 however. I have probably published thirty or 13 forty papers. 14 Q. And what's the most recent? 15 A. Many of these were published as a 16 result of my working at the Waterways Experiment 17 Station and constitute what's called gray 18 literature. 19 Q. Constitute gray literature? 20 A. They constitute what's called the 21 gray literature as opposed to the refereed 22 literature. The most recent refereed paper I've 23 published was probably in the seventies. The 24 most recent paper in the government literature 25 probably about '85. 198 1 Q. And what did you publish in '85? 2 A. I put out a lot of publications. I 3 don't have my list of publications. I can tell 4 you the subject would have been habitat 5 development on dredged material, marsh creation. 6 In fact, the most recent thing I put out was an 7 instructional video which I count as a 8 publication. And that was about 1987. An 9 instructional video on how to build marshes. 10 Q. I noticed your CV did not have a 11 list of publications. Was there a reason you did 12 not include them? 13 A. They're not pertinent to my present 14 job. 15 Q. Do you have a list of your 16 publications? 17 A. I have a list somewhere, not with 18 me. 19 Q. Okay. Could you make that available 20 to us? 21 A. Surely. We're talking about lizard 22 movements and sumac in Northern Michigan. 23 Q. Whatever there is. 24 A. And squirrels' food habits. 25 Q. Whatever is on the list. 199 1 A. Nothing that relates to South 2 Florida. 3 Q. How many refereed articles have you 4 prepared? 5 A. Probably three or less. Two or 6 three I know for sure. I'm not sure about the 7 third. 8 Q. Where were the two published? 9 A. One was published by the Texas Parks 10 and Wildlife Department, and the other was 11 published by the I think West Virginia Department 12 of Fish and Game. I'm not sure about the name. 13 It's been a long time. And another was published 14 by the Journal of Southwestern Naturalists. 15 Q. And what were the papers that 16 were -- what were the other journals, Texas Parks 17 and Wildlife, do they have a journal? 18 A. That's a separate what they call an 19 incidental paper. And the West Virginia, I don't 20 remember the West Virginia publication, the name 21 of the publication. Again, I suspect it was an 22 occasional paper. It was a chapter in a book, 23 that particular one. The Southwestern Naturalist 24 was a study of activity of lizards. 25 Q. On spoil material? 200 1 A. No, this is before I became a Corps 2 biologist. 3 Q. The chapter in the book from West 4 Virginia, what was that chapter on? 5 A. On the ecology of a plant called 6 staghorn sumac. 7 Q. Is that commonly known as poison 8 sumac? 9 A. No. 10 Q. That's not indigenous to the 11 Everglades? 12 A. There are sumacs in this area. I 13 would be very surprised to find it in the 14 Everglades. It's an uplands plant. 15 Q. And Texas Parks and Wildlife, what 16 was that? 17 A. Food habits of gray squirrels. 18 Q. Any of your publications relate to 19 or papers, thirty or forty, relate to any 20 component or species that is a component of 21 Everglades ecology? 22 A. There would be species mentioned, 23 shore birds and sea birds that live on dredged 24 material or live on newly created marshes that 25 occur in the Everglades, but it was not -- it 201 1 would be an incidental concern. None of the 2 species of major concern in the Everglades would 3 have been covered in my paper. 4 Q. Have you got any papers in process 5 that you're planning? 6 A. No. 7 Q. Have you presented any studies, 8 seminars, presentations of any kind within the 9 government regarding Everglades issues over the 10 last ten years? 11 A. Yes, in symposia and such may or may 12 not have been published as proceedings. It could 13 have been just the sort of thing what are we 14 doing, what is the Corps of Engineers doing in 15 South Florida kind of a paper. I've given a 16 number of papers of that sort at technical 17 conferences. As to whether or not I published 18 them in the proceedings, sometimes there isn't a 19 proceedings and sometimes -- I'm not as concerned 20 with building a publication list as I once was. 21 It's no longer a part of my life. So I might or 22 might not have provided a transcript. 23 Q. Well, apart from papers, apart from 24 publication, what presentations, seminars on 25 Everglades have you participated in the last 202 1 three years? 2 A. I've given a paper to a group of 3 Corps environmentalists from across the country 4 on the subject of endangered species in the 5 Everglades, and in particular the conflict 6 between the Park Service and the Fish and Wild 7 Life Service covering Snail Kite. 8 Q. When was that? 9 A. That was in I'm going to guess May 10 of '90. 11 Q. '90? 12 A. Yes. 13 Q. Okay. And what other -- 14 A. That was given in Vicksburg. I've 15 given a paper to the Florida Association of 16 Environmental Professionals on restoration of the 17 Everglades. That was in Jupiter. What's the 18 name of the beach that's right up here by, ten 19 miles, Jupiter? 20 Q. Jupiter, Hobe Sound? 21 A. The Holiday Inn there, I mean the 22 Hilton. I can't remember what the town was. 23 Q. Riviera Beach? 24 A. It's right on the county line, West 25 Palm Beach county line, whatever town that is. 203 1 That would have been about 1991. I've given a 2 paper to the Florida Association of Environmental 3 Professionals in Jacksonville on the Kissimmee 4 which is out of our concern here. I prepared but 5 did not deliver a paper in Tampa in '91 on the 6 Everglades, on the restoration of the hydrologic 7 system in the Everglades. And that was to the 8 I'm going to say Association of Wetland 9 Managers. I've conducted seminars at 10 Jacksonville University on three or four 11 occasions on the general subject of the 12 restoration of the Everglades. 13 Q. What's the latest such seminar? 14 A. November of last year, November of 15 '92. 16 Q. And did you prepare course materials 17 for that? 18 A. No, it was just a lecture. 19 Q. Whose class were you lecturing in, 20 what professor? 21 A. Swenson. 22 Q. First name? 23 A. Janice. Janice Swenson. The course 24 was Human Ecology. These don't make a big 25 impression on me when I give them. They're 204 1 not -- as I said, this aspect of presenting 2 papers was once very much a part of my life. 3 It's no longer. It's just something I do as a 4 favor for a friend or as a professional 5 obligation. It's not something that I spend a 6 great deal of time with. I throw some slides 7 together and stand up and talk. 8 Q. Any other than you've mentioned that 9 you recall, any other seminars, presentations, 10 papers? 11 A. Yes, I gave a paper at the American 12 Society of Civil Engineers, their national 13 convention in Orlando, on restoration of water 14 conservation area -- of Shark River Slough and of 15 Taylor Slough, and that was October in probably 16 '91. That was a more formal affair, and I 17 probably have a publication as a result of that. 18 Q. Where would that be, in the Journal 19 of the -- 20 A. It would be proceedings of the 21 whatever, ASC, American Society of Civil 22 Engineers annual meeting. I say again there was 23 a time in my life when I ticked these off and 24 counted them very carefully because they were a 25 part of my professional career but really very 205 1 incidental to my job at this time. 2 Q. Any others that you can recall at 3 this time? 4 A. Not that come to mind. I did give a 5 paper at the -- a presentation to the Audubon 6 Society Special Task Force on single species 7 versus multiple species management, single 8 species versus habitat management in Northeast 9 Shark River Slough. 10 Q. When was that? 11 A. It would have been about October, 12 '91. Oh, boy, that's a stretch. I mean I 13 can't -- I really don't -- 14 Q. Okay. And that was again the 15 conflict between the Fish and Wildlife Service 16 and the Park Service? 17 A. Yes. 18 (A brief recess is taken.) 19 MR. EARL: Let the record reflect we 20 have adjourned for approximately fifty minutes 21 here while the witness has reviewed files which 22 were Fed-Exed to him after we spent substantial 23 part of yesterday afternoon inquiring as to what 24 documents had not been produced pursuant to his 25 personal request for production. We also started 206 1 the deposition at eleven o'clock at the request 2 and convenience of the witness yesterday. 3 MR. FITZGERALD: I think I should 4 note that the agreement was just for the 5 convenience of the witness was to start initially 6 at ten-thirty, although it's certainly good that 7 we did not plan to start till eleven, but I was 8 informed by your office that they desired to push 9 that back even further because I did have an 10 option of having the witness catch an earlier 11 flight and when it became mutually agreeable for 12 eleven I -- 13 MR. EARL: He wasn't here till 14 eleven in any event. 15 MR. FITZGERALD: Right. 16 BY MR. EARL: 17 Q. Okay. You've gone through a file 18 which was Fed Exed to you from your office, and 19 what documents do you have there responsive to 20 your request for production that was previously 21 served upon you personally, sir? 22 A. I would just provide these 23 documents. I don't have copies. 24 MR. FITZGERALD: This is a single 25 set. Anything you wish to make a part of the 207 1 record we're going to need to duplicate. 2 MR. EARL: Okay. Let the record 3 reflect the witness is now handing me a manila 4 file entitled Everglades SWIM. 5 BY MR. EARL: 6 Q. What is this file that you just 7 handed me, sir? 8 A. This is a file which I -- once the 9 information started flowing in IN a fairly 10 voluminous manner, I simply, and once people 11 started asking for it, I just put it in my lower 12 right-hand drawer IN A file marked Everglades 13 SWIM. Everything that came in that dealt with 14 that went into that file. I've produced, it 15 appears, two memos that would have been filed 16 elsewhere. Most of these memos are copies of -- 17 most of the things in here are copies of -- 18 they're copies of inter-office correspondence. 19 For example, if you were in my office and you had 20 asked for I want your comments on the SWIM Plan 21 by this evening, I would have written it out on a 22 piece of paper and handed it to you. That would 23 never have gone into the file, just simply 24 because it bypasses that process, not on purpose, 25 just simple. 208 1 Q. Okay. After, and we'll go through 2 this file now, after consulting with counsel over 3 the last fifty minutes, have you deleted or 4 withdrawn any documents from the file that was 5 sent down from your office? 6 A. Yes. 7 Q. How many such documents? 8 MR. FITZGERALD: I would estimate, 9 counsel, perhaps 20 to 25. 10 MR. EARL: I need the witness to 11 tell me how many. 12 A. I'd guess 20 to 25. 13 Q. And why were those withdrawn? 14 A. Because they involved correspondence 15 or discussions of meetings with attorneys in our 16 office or with the Justice Department. 17 MR. EARL: Counsel, can we, without 18 disclosing the contents of those, would you 19 describe to me the date, author and subject 20 matter of those withdrawn documents. 21 MR. FITZGERALD: I will in the 22 privilege letter that I plan to send you. I 23 won't now because that has not been the practice 24 in the case so far and has not been the practice 25 of your firm thus far despite my efforts to get 209 1 privileged letters either concurrently or in 2 advance rather of depositions after the agreement 3 reached at an all counsel meeting in Tallahassee 4 over two months ago. I don't think there's any 5 purpose served in going document by document 6 through at this juncture. 7 MR. EARL: You have the documents, 8 you have just taken them from a file that the 9 witness has produced. I think it will save 10 everybody's time and further inconvenience or the 11 witness having further to be deposed on these 12 documents if you can identify them now, and we 13 would then know clearly if they're privileged 14 from that indication, we wouldn't have to pursue 15 them further. Would you be willing to do that in 16 the interests of saving time and effort here? 17 MR. FITZGERALD: I think that's not 18 unreasonable. There may be some duplication 19 because there are some duplicate documents. The 20 first document is a memorandum, subject SWIM/ONRW 21 Task Group dated 9 April, 1990. 22 MR. EARL: To who is that directed, 23 sir? 24 MR. FITZGERALD: It does not have a 25 specific recipient. 210 1 MR. EARL: Does it have an author? 2 MR. FITZGERALD: The only 3 indication -- well, Mr. Smith is indicated as the 4 author. 5 MR. EARL: And is there any 6 indication privileged and confidential on the 7 face of that or -- 8 MR. FITZGERALD: No. I mean it's 9 not stamped or annotated in some fashion. 10 MR. EARL: And the privilege 11 asserted for that is what, counsel, 12 attorney-client? 13 MR. FITZGERALD: The privilege 14 asserted for that is that -- may I see your file 15 there for a moment? 16 MR. EARL: Sure. 17 MR. FITZGERALD: I'm sorry, counsel, 18 that was in error. That document was in fact 19 provided. I picked up the -- started with the 20 wrong set of documents. 21 THE WITNESS: Those are duplicates. 22 MR. FITZGERALD: Yeah, that's a 23 duplicate of a document you actually in fact have 24 in the file. 25 MR. EARL: Okay. 211 1 MR. FITZGERALD: The first is an 2 undated document, two-page document, the title is 3 Biological Opinion, (BO) Modified Water Delivery 4 to Everglades National Park. 5 MR. EARL: Is there any indication 6 of author? 7 MR. FITZGERALD: No. 8 MR. EARL: Is there any indication 9 of purpose or any title other than what you've 10 just given us? 11 MR. FITZGERALD: That is the only 12 title on the two-page document, and the privilege 13 asserted is attorney-client. 14 MR. EARL: Is it directed to a 15 lawyer? 16 MR. FITZGERALD: It reviews 17 essentially the scope of a meeting and notes of a 18 meeting. It identifies the attorneys present and 19 the nature of the discussion amongst the parties, 20 reveals attorney thought processes and the 21 interaction with the clients. 22 MR. EARL: Does the body indicate 23 any -- I'm just trying to save the hearing 24 officer from an in camera inspection of this 25 stuff. Does the body indicate a date on it? 212 1 MR. FITZGERALD: A date? 2 MR. EARL: Yes, of the meeting. 3 MR. FITZGERALD: No, it doesn't. 4 The second document are handwritten notes, five 5 pages. I'll represent that the witness has 6 identified them as his notes of a meeting amongst 7 technical personnel, all of whom are identified, 8 and government attorneys, federal attorneys from 9 the Department of Justice and the United States 10 Attorney's Office. There is no date on the cover 11 page, but an internal page of the five pages 12 indicates 19 Dec., capital D-e-c for December, I 13 assume. 14 MR. EARL: Can the witness tell us 15 what the year of that is or do we know? Again, 16 it will save some -- 17 THE WITNESS: This was very early, 18 probably '89. This is when the -- this was the 19 first planning meeting that was held at the 20 Federal Reserve, I believe. So that would have 21 been -- 22 MR. FITZGERALD: Although it doesn't 23 have a subject line to indicate that it's a 24 planning meeting. 25 MR. EARL: That's helpful. The 213 1 hearing officer won't have to -- 2 MR. FITZGERALD: Yes, and that is 3 attorney-client. Also deliberative process which 4 I understand you maintain a continuing objection 5 to as non-applicable. 6 MR. EARL: It doesn't exist in state 7 law. 8 MR. FITZGERALD: The next document 9 is dated 25 December, 1990. It's a memorandum, 10 subject U.S. versus SFWMD lawsuit - Comments on 11 Department of Interior's Proposed Remedies. And 12 it has multiple authors, Dorothy Boardman, Office 13 of Counsel, Jim Vearil, Engineering Division, 14 Louis Hornung, Project Management, and Bo Smith 15 Planning Division. The privilege asserted is 16 attorney-client. Miss Boardman is from Office of 17 Counsel. 18 MR. EARL: To whom is that directed 19 may I ask? 20 THE WITNESS: This is the office 21 that produced it. It's a memorandum. 22 MR. FITZGERALD: It's a memorandum 23 for record. 24 THE WITNESS: It would have been 25 sent to any party that was believed would have 214 1 been interested. 2 MR. FITZGERALD: The next 3 document -- 4 MR. EARL: May I ask the witness a 5 question? 6 BY MR. EARL: 7 Q. Memorandum of records are for what 8 purpose are they generally prepared? 9 A. To complete a file. If you wish 10 to -- you attended a meeting and you wished it to 11 be part of the file, it simply is a way of 12 getting information into the file. 13 MR. FITZGERALD: The next document 14 is approximately nineteen pages. It's a fax 15 cover page and an enclosed document, both dated 16 May 18, 1990, originated by Steve Herman, 17 Esquire, Department of Justice, to Ron Hilton, 18 Army Corps of Engineers. The subject line of the 19 internal letter is Everglades/Loxahatchee 20 Litigation. 21 MR. EARL: To whom is that directed, 22 counsel? 23 MR. FITZGERALD: It's addressed, the 24 fax sheet to Ron Hilton. The internal letter 25 accompanying it is addressed to Dexter Lehtinen. 215 1 United States Attorney, Greer Tidwell of EPA, 2 Constance Harriman, Assistant Secretary, Fish, 3 Wildlife and Parks. LaJuana S. Wilcher, 4 W-i-l-c-h-e-r, Assistant Administrator for Office 5 of Water. And Dr. G. Edward Dickey, Acting 6 Principal Deputy Assistant Secretary of Army, 7 Civil Works from Steven Herman, Assistant Chief, 8 General Litigation Section, Department of 9 Justice. 10 The next document is a letter dated 11 November 28, 1989 to Dr. Smith from the 12 Department of Justice signed by Celia Campbell, 13 C-a-m-p-b-e-l-l - Mohn, M-o-h-n, the U.S. 14 Department of Justice, Land and Natural Resources 15 Division, regarding U.S. versus South Florida 16 Water Management District, et al Meeting of 17 Remedy Committee on Tuesday, December 19th. 18 The next document is a draft letter 19 addressed -- with no date addressed to the 20 Honorable Richard B. Stewart, Assistant Attorney 21 General, Land and Natural Resources Division, 22 U.S. Department of Justice, and has the signature 23 line below, although it's a draft and unsigned by 24 Robert W. Page, Assistant Secretary of the Army, 25 Civil Works. That is a four-page document. 216 1 MR. EARL: Topic, counsel? 2 MR. FITZGERALD: It has no topic 3 line. 4 MR. EARL: Can you tell us what the 5 topic is without disclosing the substance? 6 MR. FITZGERALD: It contains 7 comments and input from the Corps or from the 8 Department of the Army to Department of Justice 9 regarding a SWIM Plan draft dated April 11, 1990. 10 MR. EARL: And the basis of the 11 privilege on that one? 12 MR. FITZGERALD: Attorney-client. 13 MR. EARL: Next, please? 14 MR. FITZGERALD: Next is a two-page 15 document with a buck slip. The buck slip is 16 dated 24 May '90. It's addressed to six 17 different individuals and the sixth one being Dr. 18 Smith, the first being Lloyd Pike, Esquire, 19 Office of Counsel, Army Corps of Engineers, 20 Jacksonville District Office. 21 MR. EARL: Who else was that, sir? 22 MR. FITZGERALD: The others are Stu 23 Applebaum, Loren Hornung. 24 MR. EARL: Louis Hornung. 25 MR. FITZGERALD: Louis. I'm sorry. 217 1 Carol White and Eddie Salem. 2 BY MR. EARL: 3 Q. Let me ask the witness, are any of 4 the rest of these people other than Mr. Pike 5 lawyers with the Corps? 6 A. No, just Mr. Pike. 7 MR. EARL: And what's the topic of 8 this document, sir? 9 MR. FITZGERALD: The document 10 consists of a buck slip, a fax cover sheet and 11 then a draft letter to the Honorable Richard B. 12 Stewart, AAG, Land and Natural Resources 13 Division, Department of Justice, regarding draft 14 comments on the April 1990 Everglades SWIM Plan. 15 MR. EARL: Is it fair to assume 16 these are the draft comments from the District to 17 DOJ on the SWIM Plan? 18 MR. FITZGERALD: It's only a one- 19 page letter. The next document is a fax cover 20 sheet and one-page fax. It is addressed to Ron 21 Hilton from Steve Herman, Esquire, Department of 22 Justice, dated 6/5/90, and the enclosed letter is 23 dated 29 May, '90. A letter addressed to the 24 Honorable Richard B. Stewart, Assistant Attorney 25 General from G. Edward Dickey, Acting Principal 218 1 Deputy Assistant Secretary for Civil Works, 2 Department of the Army, regarding April, 1990 3 Everglades SWIM Plan. 4 MR. EARL: And the basis of that, 5 sir, privilege? 6 MR. FITZGERALD: The same, attorney- 7 client privilege. 8 MR. EARL: Unless you say otherwise, 9 these are attorney-client privilege. 10 MR. FITZGERALD: Yes. 11 MR. EARL: Okay. 12 MR. FITZGERALD: The next document I 13 believe is a duplicate but it's an approximately 14 nineteen-page fax and enclosure. 15 THE WITNESS: May I leave the room 16 at this time? 17 MR. EARL: If you want to take a 18 short break but I may need to clarify these. 19 Okay. 20 MR. FITZGERALD: That will give me a 21 chance to see if this other one is a duplicate. 22 THE WITNESS: Are we stopping while 23 I take a break? 24 MR. FITZGERALD: We have to. The 25 document I was about to identify I've already 219 1 identified. It's the original fax of an 2 identical document. None of them have any 3 annotations on them, but it is the letter 4 regarding Everglades/Loxahatchee litigation by 5 Steven Herman dated May 18, 1990. 6 MR. EARL: Okay. Dr. Smith, why 7 don't we let counsel, if you'll stay and counsel 8 finishes this brief pile of documents, you can 9 take a break and then I'll have a chance to 10 briefly look at the pile of non-privileged 11 information. Is that okay? 12 THE WITNESS: It seemed like a time 13 that would be -- that I wasn't needed but if I 14 have to be here, that's fine. 15 MR. FITZGERALD: The next document 16 is a fax cover page from the Department of 17 Justice. It's a five-page document to Ron Hilton 18 from Steven Herman, Esquire. The interior is -- 19 at least the first page is a letter I mentioned 20 two documents ago to the Honorable Richard 21 Stewart from G. Edward Dickey dated 8 May 1990 22 regarding SWIM Plan comments, the April 11, 1990 23 version, and the attached documents are the 24 comments on that plan. 25 MR. EARL: Comments on the SWIM 220 1 plan, the five pages are? 2 MR. FITZGERALD: Well, there's a fax 3 cover page, a transmission cover letter and the 4 balance of the document are the actual SWIM Plan, 5 proposed SWIM Plan comments addressed to the 6 Department of Justice from the Department of the 7 Army. 8 The next document is dated 18 April, 9 1990. It's a memorandum, the subject Surface 10 Water Improvement and Management Plan for the 11 Everglades signed by Ronald E. Hilton. It's 12 addressed to Lloyd Pike, Office of Counsel, Dr. 13 Smith, Mr. Appelbaum, Louis Hornung and Carol 14 White. The enclosure is a three-page fax from 15 the Department of Justice from Steve Herman dated 16 April 17, 1990, and the subject line of the 17 enclosed letter is Everglades/Loxahatchee 18 litigation; Federal Comment on South Florida 19 Water Management District, the Second Draft Plan. 20 MR. EARL: I'm sorry. The date of 21 that memorandum, counsel, on the cover from Mr. 22 Hornung? 23 MR. FITZGERALD: The cover memo from 24 Mr. Hornung is 18 April, '90. 25 MR. EARL: Okay, sir. 221 1 MR. FITZGERALD: The next document 2 is a Department of Justice letter April 30, 1990 3 from Steven Herman, Esquire to Martin Cohen who's 4 Assistant Chief Counsel for Litigation of the 5 Army Corps of Engineers and James W. Sterling, 6 Deputy Division Counsel, Department of the Army. 7 South Atlantic Division Corps of Engineers in 8 Atlanta. The next document is captioned Research 9 Priorities to Support Everglades Case, W. Walker, 10 for U.S. Department of Justice, December 18, 11 1989. 12 MR. EARL: I'm sorry. Research 13 Priorities to Support Everglades Case. 14 MR. FITZGERALD: Yes. 15 MR. EARL: It's from William 16 Walker? 17 MR. FITZGERALD: It's W. Walker for 18 U.S. Department of Justice, December 18, 1989 is 19 the document caption. 20 The next document is a one-page 21 letter dated October 9, 1989 to Ron Hilton from 22 Steven A. Herman and Celia Campbell Mohn, 23 Attorneys for the Department of Justice, 24 regarding U.S. v. South Florida Water Management 25 District, et al, Meeting of Remedy Committee on 222 1 October 27, 1989. 2 The next document consists of three 3 pages, a facsimile cover sheet and two internal 4 sheets from Steven A. Herman, Esquire, Department 5 of Justice, dated January 10, 1990 to Dr. Smith, 6 Ron Hilton and Lloyd Pike, Esquire, Corps of 7 Engineers, Office of Counsel in Jacksonville. 8 The caption on the internal document is regarding 9 United States versus South Florida Water 10 Management District, Civil Number 88-1886-CIV - 11 Hoeveler. 12 The next document has a buck slip 13 dated 2/7/90 to Dr. Smith from OC which is the 14 symbol for Office of Counsel, and it is a 15 facsimile, nine pages to Mr. Lloyd Pike, 16 Esquire. The internal document is a DOJ letter 17 dated February 2, 1990 from Richard B. Stewart, 18 Assistant Attorney General, subject Everglades 19 Loxahatchee litigation. Four more documents. 20 The next is a two-page facsimile 21 with a separate cover page, subject Everglades 22 SWIM, releaser's signature Rod Worthington, 23 addressed to Lloyd Pike -- I'm sorry, Rich 24 Worthington to Lloyd Pike Esquire, Office of 25 Counsel. It's an internal document, it's a draft 223 1 letter undated to Richard Stewart, Assistant 2 Attorney General for signature of Robert W. Page, 3 Assistant Secretary of the Army Civil Works. 4 There is a handwritten date saying received OC, 5 that's Office of Counsel, 23 February, '90. And 6 the final page is captioned Technical Comments. 7 The next document is dated January 8 5, 1990. It's a memorandum to four or five 9 various people from Richard B. Stewart, 10 Department of Justice. Subject line is 11 Everglades Water Pollution Case, proposed United 12 States Position on SWIM Plan. The document is 13 stamped close hold. It's a three-page letter. 14 MR. EARL: Who are the addressees, 15 sir? 16 MR. FITZGERALD: Dexter Lehtinen, 17 United States Attorney, South District of 18 Florida, Greer Tidwell, Region IV Administrator, 19 Environmental Protection Agency, Connie Harriman, 20 Assistant Secretary, Fish, Wildlife and Parks, 21 Department of the Interior, LaJuana Wilcher, 22 that's L-a-J-u-a-n-a, Wilcher, Assistant 23 Administrator, Office of Water, Environmental 24 Protection Agency, and John Doyle, Junior, 25 Principal Deputy Assistant Secretary, Civil 224 1 Works, Department of the Army. And the internal 2 or the enclosed two-page document is captioned 3 Proposed Position of the United States on SWIM 4 Plan. 5 MR. EARL: Is there a date any place 6 on there? 7 MR. FITZGERALD: The cover letter is 8 dated January 5, 1990. The next document is a 9 nine-page facsimile addressed to Dr. Smith from 10 Geoff Garver, Esquire, Department of Justice, 11 Land and Natural Resources Division, dated 12 1/8/90. The internal document is a memorandum 13 from Mr. Garver to Steven Herman, Esquire, 14 Assistant Chief, General Litigation Section, 15 regarding U.S. et al. versus SFWMD et al - ONRW 16 Standards dated January 2, 1990. 17 The next document is dated 3 May 18 1990. It's a Xerox of a buck slip and an 19 accompanying four-page document. The buck slip 20 shows routing to Clay Sanders, Richard Bonner, Ed 21 Salem and Lloyd Pike, Esquire from Ron Hilton. 22 The interior is a draft letter to Richard 23 Stewart, Assistant Attorney General for signature 24 of Robert W. Page, Assistant Secretary of the 25 Army. Enclosure, Technical SWIM Plan Comments. 225 1 The final is a composite of four 2 documents. The first Corps of Engineers letter 3 dated January 19, 1990 to Steven Herman, Esquire. 4 MR. EARL: I'm sorry, counsel, the 5 date? 6 MR. FITZGERALD: January 19, 1990 to 7 Steven Herman, Esquire, Assistant Chief, General 8 Litigation Section, Department of Justice. 9 MR. EARL: Corps letter to Steve 10 Herman? 11 MR. FITZGERALD: Yes. Signed by 12 William D. Brown, Acting District Engineer. 13 MR. EARL: And the topic, sir? 14 MR. FITZGERALD: General comments 15 and specific comments on SWIM Plan volumes. The 16 second document -- 17 MR. EARL: Could you just give me a 18 second, please? 19 MR. FITZGERALD: The second document 20 is in fact not privileged and is included in the 21 package you have. The next document is captioned 22 draft at the top handwritten, is dated February 23 21, 1990 also to Mr. Herman, Assistant Chief for 24 the General Litigation Section of the Department 25 of Justice for signature by William D. Brown. It 226 1 is an unsigned draft. 2 MR. EARL: May I also assume these 3 are -- 4 MR. FITZGERALD: SWIM Plan 5 comments. 6 MR. EARL: SWIM Plan comments? 7 MR. FITZGERALD: That's probably why 8 it was clipped to the preceding documents. 9 THE WITNESS: That's why it was. 10 MR. FITZGERALD: The final document 11 is a -- 12 MR. EARL: Excuse me. Is this part 13 of the composite now? 14 MR. FITZGERALD: It was clipped to 15 it. 16 MR. EARL: Okay. 17 MR. FITZGERALD: Not stapled or 18 anything. Somebody just clipped these three 19 together. The final document is a 29-page 20 facsimile dated February 16, 1990 from Steve 21 Herman, Esquire to Louis Hornung. The interior 22 document is dated February 16, 1990. It's from 23 Steve Herman, subject Everglades/Loxahatchee 24 Litigation Draft SWIM Plan Comment. It's 25 addressed to the same cast of characters, 227 1 Constance Harriman, LaJuana Wilcher, John Doyle, 2 Dexter Lehtinen, Esquire and Greer Tidwell. 3 MR. EARL: Is that it, counsel? 4 MR. FITZGERALD: That's it. 5 MR. EARL: Thank you. I appreciate 6 that. 7 BY MR. EARL: 8 Q. Other than the documents counsel has 9 just identified, have you today or your counsel 10 removed any others documents from the file you 11 just handed me? 12 A. No. 13 MR. FITZGERALD: One moment, 14 counsel. 15 A. Apparently we did pull a couple of 16 documents that had nothing to do with the issue. 17 Q. Would you identify those, please. 18 Are they privileged? 19 MR. FITZGERALD: No. No, they're 20 not. But they are unresponsive to the subpoena 21 so -- or the notice. 22 A. I didn't realize we pulled those. 23 MR. FITZGERALD: Counsel, I may have 24 actually put them back in. I debated whether 25 we'd bother pulling them or not. 228 1 MR. EARL: What was the topic? 2 MR. FITZGERALD: Give me just a 3 second. No, I put them back in. I'm sorry. I 4 misled the witness. We had pulled two -- you'll 5 come across them in there and I'll either have 6 the witness ID those as ones we've pulled or I 7 will if I recognize them for you. 8 MR. EARL: Thank you. 9 BY MR. EARL: 10 Q. Other than what counsel has just 11 identified, have you removed any other documents 12 from the file you've just handed me? 13 A. No. 14 Q. Did Mr. Pike or your secretary or 15 anyone in your office yesterday prior to shipping 16 them down here remove any documents from this 17 file? 18 A. They removed them, they faxed them 19 to us and then put them back in the package. Let 20 me double-check that. 21 THE WITNESS: The fax that you have 22 is -- all those documents are included in that 23 package? 24 MR. FITZGERALD: Yes. 25 BY MR. EARL: 229 1 Q. Who removed them yesterday, your 2 secretary? 3 A. Actually my -- one of my section 4 chiefs, Mr. Kurzbach. 5 Q. And what documents -- he removed 6 them on your instruction? 7 A. Yes. 8 Q. What documents did he remove from 9 the file yesterday? 10 A. Documents that -- we quickly went 11 over the documents and documents that I thought 12 were -- contained my signature I wanted to see 13 since I told you that I didn't think there were 14 any documents containing my signature. 15 Q. And that's what he faxed down to you 16 yesterday? 17 A. That's what he faxed down, as I 18 recall. If I could see what he -- a copy of the 19 fax, I could tell you exactly. You at the time 20 we were pursuing this line and I thought perhaps 21 I could get these documents right away and they 22 would help us in our discussion. Most of them 23 turned out to be pulled. Right? This one is in 24 the -- 25 MR. EARL: Off the record. 230 1 (A discussion takes place off the 2 record.) 3 A. These are the items that were faxed 4 to me that were not pulled. You can just stick 5 them in there if you wish. 6 Q. You're now handing me -- 7 A. Items that were faxed to me 8 yesterday. 9 Q. That are not in the file you just 10 handed me. 11 A. No, they are in the file, I 12 believe. 13 Q. Okay. 14 MR. FITZGERALD: Only one document, 15 counsel, was pulled. 16 A. Only one document was pulled. 17 MR. FITZGERALD: And it's already 18 been identified as one of the privileged 19 documents. 20 BY MR. EARL: 21 Q. Okay. So you've just handed me -- 22 let's just identify what you've handed me. A 23 what you've been calling a buck slip dated 24 September 1, '89 consisting of an Everglades SWIM 25 Plan from McAdams to Bo consisting of four pages 231 1 attachment. You've handed me a 9 April, 1990 2 Memorandum of Record, subject SWIM O and R Task 3 Group from Hanley K. Smith, two pages. You've 4 handed me it looks like a fax sheet dated March 5 1st, '93, a transmittal date. 6 A. Those are -- that's an example 7 someone asked me for comments and I just typed 8 them out, signed them. Those kinds of comments 9 would never end up in the file. 10 Q. Okay. 11 A. And the reason I had these faxed was 12 I told you that I did not routinely keep records, 13 and in fact there was an example of a record that 14 I did keep and I wanted to say I had misspoken in 15 that regard. 16 Q. Okay. Dr. Smith, if you would like 17 to take a short ten-minute break, what I'll do in 18 that period is quickly go through here and 19 categorize the copying priorities because you 20 wanted to take a break I believe anyway. So 21 let's go ahead and do that. 22 A. If you want to take a break, I 23 don't -- I thought my presence was unnecessary at 24 that time. 25 Q. It's not necessary for the next ten 232 1 minutes if you want to relax and enjoy yourself 2 even more. 3 (A brief recess is taken.) 4 BY MR. EARL: 5 Q. Dr. Smith, we're now copying the 6 files you've provided today. I notice the file 7 was entitled Everglades SWIM Plan. Correct? 8 A. Yes, sir. 9 Q. And where physically did you keep 10 that file? 11 A. In my lower left-hand drawer. 12 Q. Of your desk? 13 A. Yes. 14 Q. What other files do you keep there? 15 A. I keep confidential personnel 16 records. I keep a file on the Florida Bay 17 National Marine Sanctuary. Basically it's a 18 place to put files that I may have reason to have 19 ready access to but don't fit in conveniently 20 into other categories. 21 Q. Okay. So you have confidential 22 personnel files, you have National Marine 23 Sanctuary files. What other files do you have 24 down there? 25 A. I have staffing and manpower files. 233 1 Q. Are they divided up by topics? 2 A. They're the same -- these are all 3 the same kinds of file. If something comes in on 4 this subject, I stick it in that file, get it off 5 my desk. 6 Q. What other subject matters do you 7 have that you keep files on in that drawer? 8 A. I don't recall any others. There 9 may be some of my own personnel files. These are 10 catchall files. 11 Q. There's a catchall file? 12 A. That's what these files are is 13 catchall files. It's the kind of information you 14 don't want to lose, but you really don't have any 15 place in particular to put it. 16 Q. Right. Well, other than the 17 confidential personnel files, the National Marine 18 Sanctuary files, staffing and manpower files, 19 your own personnel files, what other specific 20 files do you have down there? 21 A. I don't recall any others. I think 22 there's airline and travel guides and maps of 23 various cities that I visit. 24 Q. No other substantive files that 25 you -- 234 1 A. No, not that I can recall. 2 Q. Do you have any other files there 3 relating to the Central and Southern Project or 4 any portion of it? 5 A. Not that I recall. 6 Q. Okay. Do you maintain such files 7 any place else in your office? 8 A. Relating to the C&SF? 9 Q. Yes. 10 A. I have no doubt that if you went 11 through my office you would find files relating 12 to the C&SF. I can't tell you specifically 13 what -- I receive a lot of information and it 14 occurs to me this really should be saved, but it 15 doesn't fall into any particular category. That 16 information tends to be stored in catchall files 17 all over my office. 18 Q. Okay. And I understand you did not 19 review those in response to the request for 20 production directed to you. Correct? 21 A. No. I did review this file, as a 22 matter of fact, and did not -- not apparently 23 with the level of attention that I would have had 24 I known this process a little better. 25 Q. Okay. Well, in fact, you weren't 235 1 even provided with the directions that came with 2 the request for production, were you? You told 3 me that yesterday. 4 A. I was provided with a -- 5 Q. Do you remember yesterday we talked 6 and you told me you hadn't been provided with the 7 first several pages? 8 A. Yes. That's right. 9 MR. FITZGERALD: I would point out 10 that the witness' testimony was actually that he 11 had the definitions prior to that from other 12 sources. 13 MR. EARL: I don't think that's 14 correct, counsel, but we'll let the record speak 15 on that. 16 A. I had the definitions as a result of 17 the interrogatory that I received several months 18 ago. 19 Q. So at the time you prepared -- your 20 testimony now is at the time you gathered up 21 documents in response to the request for 22 production directed to you, you fully understood 23 and had read the directions which accompanied 24 that request? 25 A. No. I did not. 236 1 Q. Okay. And you didn't even have them 2 before you, did you? 3 A. No. 4 Q. Who gave you -- did the Office of 5 Counsel, Mr. Pike or one of the paralegals give 6 you the request for production with the missing 7 pages? Who gave that to you? 8 A. I don't know. It came from somebody 9 named Sandy. It came from Tom, Tom Fitzgerald. 10 Q. And that came to you without the 11 cover page. Correct? Without the instruction 12 pages. Correct? 13 A. It came to me beginning with page 14 seven. 15 Q. Okay. How did you know that there 16 were no documents in these other files you say 17 relating to the project in your office that would 18 have been responsive to this request if you 19 didn't go through those files? 20 A. I wouldn't know without going 21 through those files. 22 Q. Okay. So as we sit here today, you 23 don't know whether those files contained 24 documents which might be responsive to this 25 request. Is that correct? 237 1 A. That's correct. It's important for 2 you to understand the explanation, however, of 3 the files in my office. These are not official 4 files. They're places where I store stuff that 5 comes in. Maybe newspaper articles, maybe a 6 report from the Sierra Club, the Audubon 7 Society. Things I say to myself this is not -- 8 maybe I'll need this some time. I made a 9 conscious effort for everything of that sort that 10 dealt with the lawsuit and with the SWIM Plan to 11 go into that single file labeled SWIM Plan. But 12 a large percent of my work deals with this 13 project. 14 Q. Now, the official files maintained 15 in your office, you told me yesterday they're 16 maintained by your project managers. Correct? 17 A. Yes. 18 Q. And there were some you weren't 19 quite -- you weren't quite clear that were 20 maintained by your secretary. Correct? 21 A. That's right. 22 Q. And you told me there was no index 23 to those files. Correct? 24 A. To my knowledge there's no index. 25 Here again, my secretary is charged as -- it is 238 1 her job description to maintain the files. When 2 I ask for a file it arrives in the form that I 3 ask for it. I've always been satisfied with the 4 files that I've gotten in. I haven't gone out 5 and asked people how they keep their files. 6 Q. Did you ask your secretary to review 7 those files in response to the request for 8 production directed to you? 9 A. No, I did not. 10 Q. Did you yourself in response to this 11 request for production review the files 12 maintained by your project managers or your 13 secretary? 14 A. I did not. I asked specific 15 individuals for information that I felt -- that I 16 knew they had that I felt was responsive to the 17 questions. 18 Q. But you didn't ask them to review 19 the files? 20 A. I asked Mr. McAdams if he had 21 provided all this material previously to -- all 22 the material he had previously to Barbara Haines 23 and he said yes. And I felt at that point you in 24 all likelihood had all this data and consequently 25 didn't produce it. What I produced was things I 239 1 figured you did not have. 2 Q. And how did you determine what we 3 had and did not have? 4 A. Primarily recent information and 5 information that -- quite frankly I figured you 6 had it all. We've always been very forthcoming 7 in all the discoveries. 8 Q. Pardon me? 9 A. We've always been very forthcoming 10 in all the discoveries. 11 Q. And how do you know that? 12 A. Each time the paralegals have come 13 back asking for material, we've said here it is. 14 There's very little in -- I think you understand 15 the process. I have an office maybe forty 16 percent of the material is on the C&SF, literally 17 hundreds and hundreds of files. And I felt that 18 I was being responsive to the questions in 19 providing the information that I thought was 20 useful. I did not provide the huge volume of 21 files. 22 Q. Can we go back to the request for 23 production we're talking about that Mr. 24 Fitzgerald sent to you? 25 A. Yes. 240 1 Q. Number eighteen, requests, "A list 2 of all technical, professional, or scientific 3 publications, articles, monographs, theses or 4 similar papers, including any such papers 5 currently in preparation, in which the witness is 6 identified as the author or co-author." Which of 7 those, if any, documents such as that do you have 8 for me today, sir? 9 A. I have no such documents for you 10 today. All of those -- I interpreted this 11 request to be -- to mean articles which appear in 12 the technical literature. 13 Q. Okay. And did you supply to me the 14 articles you described earlier that were West 15 Virginia? 16 A. No, I did not. 17 Q. Why was that if you had such an 18 interpretation? 19 A. I'm sorry. Technical literature 20 that dealt with South Florida. 21 Q. I see. It says all technical 22 publications, doesn't it? 23 A. Yes, it does. 24 Q. Okay, sir. Did you bring these with 25 you? 241 1 A. No. 2 Q. In nineteen we asked for a copy of 3 each of those. In eighteen we asked for a 4 listing of those. Have you provided either, sir, 5 of your publications? 6 A. No. 7 Q. And why was that, because you 8 misinterpreted the request? 9 A. I interpreted the request to deal 10 with the issue at hand. 11 Q. Okay. Number twenty asks you to 12 produce, "Any and all documents relating to the 13 preparation of an environmental impact statement 14 ("EIS") or National Environmental Policy Act 15 review of the design, construction, or operation 16 of the STA's." What documents have you brought 17 with you in response to that? 18 A. The only documents that I prepared 19 in regard to that was provided to you yesterday, 20 the compendium of NEPA actions, and I don't 21 recall what the exhibit number was. 22 Q. I believe that was number two 23 yesterday. Is this what you're talking about, 24 number two? 25 A. Yes, sir. 242 1 Q. Other than that you brought 2 nothing. Correct? Is that correct, sir? 3 A. I'm thinking about the answer. 4 Nothing comes to mind, although I thought there 5 was a document we looked at yesterday that did 6 discuss this matter. Yes, there was. 7 Q. Would you like to see the exhibits 8 we went through yesterday? 9 A. Yes. It's not one of the exhibits. 10 Q. Dr. Smith, you've gone into your 11 briefcase several times. Do you have other 12 documents with you that you haven't produced in 13 response to this request? 14 A. Not unless I find one right now I 15 don't. The answer to that is no. It appears 16 that I do not. There's something in your 17 question that jars my memory regarding a document 18 that discussed whether or not there would -- I'm 19 sorry. Yes, I do recall. In the exhibit on -- 20 Exhibit Number 2 there is a discussion as to 21 whether or not the -- this is what I was thinking 22 of, this description on page nine of Exhibit 2 23 was -- 24 Q. Which is a narrative description of 25 storm water treatment areas. 243 1 A. That's right. 2 Q. And NEPA documentation. Okay. 3 A. I knew there was something on it. 4 We had discussed the situation in some way and I 5 had seen written material. 6 Q. And that's a summary. Correct? 7 A. Correct. 8 Q. Other than that which we've already 9 talked about, Exhibit 2, have you brought with 10 you any other documents relating to the EIS NEPA 11 process for the STA's? 12 A. No. 13 Q. What files did you review to 14 determine whether such documents might exist? 15 A. There are no such files in my 16 office. 17 Q. In your physical office, your 18 personal office. 19 A. In the offices of the Environmental 20 Branch. 21 Q. Your testimony is there are no 22 documents of any kind in the Environmental Branch 23 discussing, relating to in any way the 24 possibility of an EIS or other NEPA review for 25 the STA's called for in the SWIM Plan. Is that 244 1 your testimony? 2 A. That's the testimony to my 3 knowledge. I would not expect to have found any 4 such documents and I did not look for any such 5 documents. 6 Q. You didn't look for it. 7 A. That's right. 8 Q. Okay. So you really don't know if 9 it exists, do you? 10 A. That's true. 11 Q. Okay. Well, why would you -- if no 12 documents exist relating to that, why in Exhibit 13 2 would you summarize the issue? 14 A. This was as a result of a discussion 15 with the Justice Department as to the best way to 16 display the existing NEPA documentation for the 17 C&SF. And I did not pull that document 18 together. It was pulled together for me while I 19 was out of the office. It's possible that there 20 was file information produced to do that. It's 21 very unlikely but it's possible. 22 Q. Who pulled this together for you? 23 A. It would have been done by Elmar 24 Kurzbach's section. 25 Q. His section. 245 1 A. It may not have been done by him 2 personally. He probably pulled together the 3 various people and put it together. 4 Q. Have you asked him whether any such 5 documents exist? 6 A. No. 7 Q. And your testimony as we sit here 8 today is that you've never seen and have no 9 recollection whatsoever of any piece of paper, 10 whether it be informal memoranda, whether it be 11 an interoffice memorandum or other document at 12 the Environmental Branch of the Jacksonville 13 District which relates to NEPA review of the 14 STA's. Is that correct? 15 A. To the best of my recollection 16 that's correct. 17 Q. And you don't have the best 18 knowledge on that. You haven't reviewed the 19 files, have you? 20 A. That's true. 21 Q. And who would I ask if I wanted to 22 know what was in the files? 23 A. Mr. Kurzbach. 24 Q. And you've never seen any 25 correspondence regarding the need or request to 246 1 invoke the NEPA process regarding the SWIM Plan 2 or the STA's. Is that your testimony? 3 A. I haven't seen correspondence in 4 that regard. 5 Q. At the Jacksonville District have 6 you seen this? 7 A. There have been numerous meetings -- 8 there have been meetings, more than two between 9 our counsel and Justice discussing this which I 10 was part of some of those meetings. I do not 11 remember -- and I'm sure there was a written 12 record. I could not put my hands on it and 13 probably wouldn't recognize it if I saw it. 14 Q. But you're sure there are some 15 written records of the Jacksonville District of 16 these meetings. Correct? 17 A. I'm not sure. I haven't seen it. 18 Q. I'm sorry. You just told me -- 19 A. I'd be very surprised if there was 20 not but I do not recall having seen it. 21 Q. And again, Mr. Kurzbach would be the 22 one I'd want to ask about that? 23 A. No, it would be Mr. Pike. 24 Q. Mr. Pike. 25 A. Kurzbach would not have even known 247 1 what he was producing, why he was producing it. 2 He would simply -- I would have said under our 3 conditions we need an EIS on this project. 4 Q. You didn't ask him to go look and 5 see if there's any documents, did you? 6 A. No. He's unaware of these 7 proceedings. It would have been an answer to a 8 technical question as far as he was concerned. 9 Q. Anything else? Have you ever seen 10 any other documents including correspondence 11 which relate to the need to do a -- to invoke the 12 NEPA process with regard to the STA's or other 13 SWIM Plan provisions? 14 A. Again, these issues are discussed. 15 There could be memoranda on the subject, but I do 16 not recall them. 17 Q. Did you discuss with anyone the need 18 to review the files to see if such memoranda 19 existed in response to this request? 20 A. No. 21 Q. No one told you not to. Correct? 22 A. No one told me not to. 23 Q. That was your own decision. 24 A. My decision. 25 Q. Request number 21, sir, asks for, 248 1 "Any and all documents relating to the 2 preparation of an EIS or National Environmental 3 Policy Act review of the other projects or 4 programs called for in the 1992 SWIM Plan." To 5 save time would your answers be the same as we've 6 just discussed with regards to the STA's? 7 A. Yes. 8 Q. So you did not ask anyone and you 9 did not inspect any files to determine whether 10 there were any documents relevant to this. 11 Correct? 12 A. Any and all documents relating to 13 the preparation of an EIS or an Environmental 14 Policy Act review of the other projects -- yes. 15 No, I did not ask anybody else. 16 Q. Okay, sir. Number 22. "Any and all 17 documents relating to the mowing of a strip of 18 vegetation between structures S-10C and S-11B in 19 Water Conservation Area 2A." Did you look for 20 any documents relating to that? 21 A. I did not. I have heard of this. 22 I've never seen anything written on it. 23 Q. You didn't look and you didn't ask 24 anyone else to look. Correct? 25 A. No. I felt my knowledge was on a 249 1 par superior to anybody else's knowledge of this 2 in my office. 3 Q. Okay. And you didn't determine 4 whether those had been previously provided. 5 Correct? 6 A. No. 7 Q. 23, "Any and all documents relating 8 to the mechanical removal or alteration of 9 vegetation in the WCA's or the Park." Did you 10 ask anybody or did you yourself look to see if 11 there were any documents responsive to that? 12 A. Any and all documents relating to 13 the mechanical removal or alteration of 14 vegetation. I don't even understand the question 15 so I would not. I did not. 16 Q. Let me see if we can -- "Any and all 17 documents relating to the mechanical removal or 18 alteration of vegetation in the WCA's or the 19 Park." That would include mowing, harvesting, 20 the normal things that you would include, 21 mechanical devices. But your answer is you 22 didn't look for such documents. 23 A. Are you referring to removal of 24 cattails? 25 Q. Any vegetation, sawgrass, cattails. 250 1 A. I would be amazed that such 2 documents existed. 3 Q. But you didn't look. Right? 4 A. No. 5 MR. EARL: Would you mark this. 6 (Plaintiff's Exhibit Smith-12 is 7 marked for identification.) 8 BY MR. EARL: 9 Q. I hand you now, sir, Number 12. I 10 apologize for the condition. It's difficult to 11 read. It's entitled, "Effect of Grass Cutting 12 Below Structures 12(B,C, and D)," U.S. Geological 13 Survey Information Statement 68-2, Everglades 14 National Park Water Resources Investigations, 15 purports to relate to the cutting of sawgrass 16 south of the twelve structures between June 25th 17 to July 3rd, l968 by the Corps of Engineers. 18 A. I've never seen this document 19 before. 20 Q. You've never seen it? And you 21 didn't look for it. Right? 22 A. That's right. 23 Q. You were unaware that the Corps had 24 cut sawgrass in Everglades National Park? 25 A. Yes. 251 1 Q. Okay. 2 A. This is unreadable. 3 Q. Ours are the same way. I apologize 4 but we get these copies of copies. The first two 5 pages are, however, readable, are they not, 6 1074819 and 1074820 of this paper? It appears to 7 me the third page looks like some sort of 8 bibliography and the fourth and fifth pages 9 appear to be some sort of diagrams, charts, 10 tables, figures. Mine are as bad as yours. 11 MR. FITZGERALD: I was trying to 12 figure out how do you ascertain the third page 13 was a bibliography. I see a date line on it and 14 what looks like -- 15 MR. EARL: I wouldn't -- 16 MR. FITZGERALD: -- the equivalent 17 of a signature line sort of. 18 MR. EARL: You may be right, 19 counsel. I see a couple of words is what I see. 20 MR. FITZGERALD: That's all I can 21 make out, too. 22 MR. EARL: Okay. 23 BY MR. EARL: 24 Q. Back to request for production to 25 you, Dr. Smith. Number 24. "Any and all 252 1 documents relating to the General Design 2 Memorandum for Modified Water Deliveries to the 3 Everglades National Park." You told me yesterday 4 you provided the EIS and the summary in lieu of 5 the specific documents. Correct? 6 A. That's correct. 7 Q. And whose files would those 8 documents be in? 9 A. They would be in our real estate 10 files, Office of Counsel files, engineering 11 files, in the planning files, project management 12 files and the District Engineer's files. 13 Q. How about in the Environmental 14 Branch? You have no files? 15 A. Of course we do. 16 Q. Whose files would those be in? 17 A. Primarily in Dr. Moulding's files. 18 Q. And you didn't review those or ask 19 him to review to provide specific documents, did 20 you, sir? 21 A. No. 22 Q. Number 25, "Any and all documents 23 relating to the Corps' permit application to DER 24 for Structures S-10, S-11, S-12 discharging into 25 and within the EPA." Now, you gave me yesterday 253 1 in response the Corps' permit application to DER, 2 the request for additional information and the 3 responses to those requests. Correct? 4 A. Yes, sir. 5 Q. Okay. And you provided no other 6 documents. Correct? 7 A. Yes, sir. 8 Q. Okay. Did you look or did you ask 9 anyone else to look to documents responsive to 10 number 25? 11 A. Yes, sir. 12 Q. Who did you ask to look? 13 A. Steve Baisdin. 14 Q. And you told me yesterday he was the 15 individual working on that hands on. Correct? 16 A. Yes. 17 Q. And did he tell you there were no 18 documents other than the documents you provided? 19 A. There are other documents. 20 Q. Why were they not provided? 21 A. We reviewed those documents. In my 22 judgment the information that was provided was 23 the crux of the permit, the response and the 24 response of the state. 25 Q. Who reviewed those documents? 254 1 A. Steve and I. 2 Q. When did you do that, sir? 3 A. Shortly before I completed my 4 response here, within the last two weeks. 5 Q. Okay. How big is that file? 6 A. I don't recall. I called him in and 7 I said, Steve, bring in your files, let's look 8 through what we have here and what are the best 9 documents to demonstrate where we are on this 10 issue. 11 Q. Okay. Number 25 doesn't ask you for 12 the best documents. It asks for any and all, 13 doesn't it, sir? 14 A. That's right. 15 Q. And you again interpreted that to 16 mean what you thought would be the best. 17 Correct? 18 A. Yes. 19 Q. Okay. 20 A. The best is probably not the word. 21 It is the word that I used. The most 22 informative. 23 Q. And correct me if I'm wrong, but as 24 I understand it, you only provided to us 25 yesterday in Exhibits Number 9 and 10, as I 255 1 understand it, you only provided those documents 2 that were a matter of public record at DER, the 3 documents to and from DER. Correct? 4 A. All those documents are a matter of 5 public record. 6 Q. But you provided no documents -- 7 A. No internal memoranda. 8 Q. Okay. Do internal memoranda on that 9 exist? 10 A. To my recollection they do. 11 Q. And do memoranda to higher authority 12 on this issue of obtaining these permits, do they 13 exist in the file? 14 A. They could but they're unlikely to 15 be in my files. That's really a policy issue 16 that would more likely be contained in the either 17 Office of Counsel or project management files. 18 Q. I'm not asking about the originals 19 but drafts that were prepared for forwarding to 20 higher authority, you've seen copies of those in 21 your files, haven't you? 22 A. I recall that it was an issue. I 23 cannot recall -- the issue of federal supremacy. 24 I don't recall if there were specific letters 25 exchanged, but it would be very unlikely that 256 1 those would be in my files. It's not an issue -- 2 that is not an environmental issue. 3 Q. Even copies would not be -- 4 A. Not likely. 5 Q. Other than internal memoranda, what 6 else was in the file that you reviewed with Mr. 7 Baisdin? 8 A. Baisdin. I don't recall 9 specifically. I would assume reports, memoranda 10 on meetings held with DER and that sort of thing. 11 Q. And you have no estimate at this 12 time how big that file is? 13 A. No. 14 Q. Is it a foot long, is it six inches? 15 A. I suspect you have most of it. 16 Q. But you haven't determined that, 17 have you? 18 A. I have not. 19 Q. And are there recent documents in 20 there in the last two to three months? 21 A. I don't recall. I think the last 22 completeness summary was July 31st. Was that 23 it? That's probably the latest thing in there. 24 Q. I mean other than that. 25 A. No, I don't recall. 257 1 Q. So you don't recall any documents in 2 that file since July 31st, 1992. Correct? 3 A. I don't recall. That's right. 4 Q. There may be. 5 A. There may be. 6 Q. Okay, sir. Number 26, "Any and all 7 documents relating to the Corps' collection of 8 rainfall and rainfall data within the Federal 9 Project." What have you provided in response to 10 that request, sir? 11 A. There's nothing in my office to my 12 knowledge on that subject and so I provided 13 nothing. I would be surprised that the Corps 14 collected rainfall data. I would imagine that we 15 would depend upon the Water Management District 16 to do that. 17 Q. Did you ask anybody to review and 18 see if any such documents exist? 19 A. No. 20 Q. And finally, sir, number 27, "Any 21 and all documents relating to purposes for which 22 the Federal Project was established, including 23 flood control, water supply, and other purposes." 24 What, if any, documents have you produced and do 25 you have with you relating to that? 258 1 A. I have produced none. There may be 2 some reference in the GDM for modified water 3 deliveries. I'm sure there is reference to 4 project's purposes in that document. 5 Q. Did you personally or did you ask 6 anyone else to review the files in your office to 7 determine if there was material responsive to 8 that? 9 A. No. 10 Q. I presume as the branch head you 11 have access to all the files of your 12 subordinates. Correct? 13 A. Yes. 14 Q. Sir, if I can direct your attention 15 to number three, please. To save some time here, 16 this is the request for production sent to the 17 Corps to produce a witness or witnesses 18 knowledgeable regarding the designated matters 19 therein. You told me yesterday that you were 20 knowledgeable regarding several of those areas, 21 and am I correct in recalling that you told me 22 that you had not read or received this prior to 23 coming to this deposition? Correct? 24 A. I believe this document appeared -- 25 and I do not have it in front of me, appeared on 259 1 my desk sometime last week. And I did not take 2 action on it. 3 Q. So you -- neither you nor anyone 4 else in the District office to your knowledge has 5 reviewed files and determined what documents may 6 or may not be responsive to this. Correct? 7 A. To my knowledge they have not. I 8 certainly have not. 9 Q. Okay, sir. 10 A. I wish I knew when this was dated. 11 Is there a date on here? 12 Q. Yes, there is. January 14th, 1993. 13 THE WITNESS: This does reflect the 14 approximate time I might have seen it. 15 BY MR. EARL: 16 Q. You suggested that there's something 17 on your copy which reflects the time you may have 18 seen this document? 19 A. I was looking for a date that -- 20 more recent than January. There's a date of 21 February 22, 23 on page two. I don't know 22 exactly what that refers to. 23 Q. May I see your copy? You're 24 referring to the time and place of the deposition 25 which was then renoticed. 260 1 A. Oh. 2 Q. There's a renotice on this, sir. 3 A. I clearly don't know what this is. 4 MR. EARL: Counsel, I'm going to 5 obviously not depose the witness on the 6 designated topics. I don't have the documents. 7 Is there some reason that no search was done? 8 MR. FITZGERALD: You can ask the 9 witness how this came to him and he'll give you 10 his responses. 11 MR. EARL: Okay. 12 BY MR. EARL: 13 Q. How did you get this document, sir? 14 A. It appeared in my box. 15 Q. No routing slip? 16 A. There was a routing slip that said 17 see me. 18 Q. From who? 19 A. I believe Barbara Haines. 20 Q. She's the paralegal that works for 21 Mr. Pike? 22 A. Yes. 23 Q. And when did she say to see you? 24 A. I went back to see her and she was 25 not there and I went back subsequently to see 261 1 her, I left a note and she was either out of the 2 office -- 3 Q. And no one else called you about 4 this? 5 A. No. 6 Q. -- and said have you reviewed the 7 files, are you ready for this? 8 A. No. 9 Q. No one. Okay. 10 A. It arrived on my desk. I looked at 11 it. It said see me. I went to see somebody. I 12 had no instructions to do anything with it. 13 Q. Okay. Do you have the copy that you 14 received with you? 15 A. No. 16 Q. Okay. 17 A. You know, I keep looking in my 18 briefcase and everyone gets very suspicious 19 but -- 20 Q. Not suspicious, sir, just quizzical, 21 that's our job. 22 A. I don't believe. Let me look one 23 more time through my -- no, I don't have it. I 24 can't tell you for certain that this is the 25 document indeed that I received last week. 262 1 Q. Prior to your deposition no one 2 asked you if you'd complied with this. That's 3 the question. 4 A. That's true. 5 Q. Now, if you were going to comply 6 with this request on Exhibit 3, which would 7 include the Jacksonville District, person or 8 persons most knowledgeable and designated by the 9 U. S. Army Corps of Engineers, what files would 10 you have to review to determine whether there 11 were documents responsive to this, whose files? 12 MR. FITZGERALD: Counselor, are you 13 now questioning him as as a designated rep or are 14 you questioning him in his capacity as an 15 individual? 16 MR. EARL: I'm asking him based on 17 his knowledge of the office if he was asked to 18 respond to this. 19 MR. FITZGERALD: Let me object to 20 the extent that any of the categories in Exhibit 21 3 call for documents to be produced relevant to 22 the seven or eight categories therein exclusive 23 of the CV which has been produced. You will 24 find, I believe, if you question the witness that 25 the bulk of the relevant documents in fact he has 263 1 reviewed and has provided. Documents that would 2 originate beyond his branch will be provided by 3 the secondary or alternative, secondary is 4 probably not the right word, designated rep for 5 the agency who has yet to be identified. 6 MR. EARL: That's exactly my -- what 7 I'd like to identify factually, counsel, who else 8 would have -- what are the files this information 9 would be contained in? 10 MR. FITZGERALD: You're certainly 11 free to explore. I'm not sure the witness will 12 be able to identify a single person or even all 13 the people that might have that. 14 MR. EARL: I'm just asking him where 15 files might be to start off with. 16 THE WITNESS: I have a question of 17 you that perhaps I'll ask in the hall. 18 MR. EARL: Okay. Five-minute 19 break? 20 MR. FITZGERALD: It shouldn't take 21 that long. 22 (A brief recess is taken.) 23 BY MR. EARL: 24 Q. Okay, sir. After consulting with 25 counsel, do you have something to say? 264 1 A. No. 2 Q. Okay. Let me ask you a question so 3 you could -- if you were asked to respond to this 4 request on behalf of the Jacksonville District of 5 the Corps of Engineers, the request to produce 6 documents that was identified as Exhibit 3 that 7 Barbara Haines you believe brought to you, what 8 files, offices, departments, branches, divisions 9 would you have to go to to determine if there are 10 responsive documents? 11 A. If I was acting on behalf of the 12 District and not in my -- solely in my capacity 13 as Chief of the Environmental Branch -- 14 Q. Yes, sir. 15 A. -- I would go to the Engineering 16 Division, other documents in the Planning 17 Division, I am in the Planning Division but not 18 all -- there are other branches in the Planning 19 Division. 20 Q. Help me. Whose office, where? 21 A. This would be Project Formulation 22 Branch, and that's Mr. George Strain. 23 Q. S-t -- 24 A. -- r-a-i-n. 25 Q. Project Formulation Branch. 265 1 A. Right. 2 Q. And where would you go in 3 engineering? 4 A. I would go to Mr. -- well, you would 5 have to -- you would go to Design Branch and -- 6 which is the -- the name of the gentleman escapes 7 me at the moment. Design Branch and I would go 8 to Ron Hilton's branch which is H and H, 9 Hydrology and Hydraulics. I would go to Project 10 Management, Mr. Bonner's files, as well as Mr. 11 Hornung's files. I would go to Real Estate, Mr. 12 Griffin, and I would go to Office of Counsel. 13 Q. Okay. Project Management, you say 14 you'd go to Mr. Hornung. What unit is that? 15 A. His unit is the C&SF. He works for 16 Mr. Bonner. 17 Q. Okay. And Real Estate, why would 18 you go to Real Estate, sir? 19 A. The purchase of any of the -- I 20 would not go to Real Estate. My thinking had 21 switched over into the modified water deliveries. 22 Q. And which project managers' files in 23 your office would you go to to respond to this in 24 the Environmental Branch? 25 A. I would go to Mr. McAdams, Mr. 266 1 Baisdin and -- development of the settlement 2 agreement -- I would discuss it with Mr. 3 Moulding, but I doubt that he would have 4 anything. And I would discuss it with Mr. 5 Kurzbach but I would doubt -- 6 Q. Kurzbach? 7 A. Yes. 8 Q. And would you ask your secretary if 9 she knew of any files? 10 A. Yes, I probably would. 11 Q. Okay. Prior to coming here today, 12 have you asked the Design Branch and Engineering, 13 Mr. Hilton's H and H office, the Project 14 Formulation Branch, Mr. Bonner and Mr. Hornung 15 whether they have any documents responsive to 16 requests in Exhibit 3? 17 A. Yes, Exhibit 3 is -- 18 Q. The document we're talking about 19 right now. 20 A. No. 21 Q. Okay, sir. Prior to coming here 22 today, did you ask the Office of Counsel, Mr. 23 McAdams, your secretary, Mr. Moulding, Mr. 24 Kurzbach if they had any documents responsive to 25 the requests in Exhibit 3? 267 1 A. I would phrase it another way. I 2 met with Moulding, Kurzbach, Baisdin, McAdams to 3 discuss the availability or the existence of 4 information that I thought would be responsive to 5 the earlier I guess it's an interrogatory. 6 Q. I'm talking about Exhibit 3, the 7 document you have -- you didn't ask them about 8 that? 9 A. No, I never picked Exhibit 3 up to 10 read. 11 Q. So you didn't ask these people about 12 it, to respond to it. Correct? 13 A. I'm sorry. I misunderstood the 14 nature of your questions. In answering the 15 earlier interrogatory -- 16 Q. The earlier request for admission. 17 A. That's right. 18 Q. I'm sorry. The earlier request to 19 produce documents directed to you personally. 20 A. Yes. 21 Q. Which we've identified as number 22 four. 23 MR. FITZGERALD: You mean this? Is 24 that what you mean? 25 THE WITNESS: Yes. 268 1 BY MR. EARL: 2 Q. Excuse me a second, sir. I need to 3 clarify my own -- number four which we talked 4 about earlier is directed to you personally. 5 Correct? That's Exhibit Number 4 and that's a 6 request to produce the documents. We've gone 7 through the twenty some categories. Right. 27 8 categories. Right? 9 A. Yes, it was directed to me 10 personally but I have it only from page seven 11 on. And I would assume that the questions you 12 were asking were duplicated here. 13 Q. No, sir. 14 A. I have not seen this document 15 previously. 16 Q. Exhibit 3 you're talking about, the 17 request to produce designated documents. 18 A. That's right. 19 Q. Well, you told me earlier it was 20 given to you by Barbara Haines. 21 A. There is a document which looks much 22 like this sitting on my desk which I have not 23 even thumbed through. I assumed from our 24 discussion yesterday this must have been it. 25 Q. Exhibit 3 is the document you 269 1 believe that Barbara Haines gave you sitting on 2 your desk now. 3 A. Yes. 4 Q. And my question simply is did you 5 discuss -- I think we both know the answer but I 6 need to just -- 7 A. I did not even open the document. 8 Q. And therefore, you did not discuss 9 it with Mr. McAdams and the others in your 10 office? 11