1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )

ROTH FARMS, INC., and WEDGWORTH FARMS, INC., )

4 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., and )

5 UNITED STATES SUGAR CORPORATION, )

-and- )

6 FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

LEWIS POPE FARMS, W. E. SCHLECHTER & SONS, )

7 INC., and HUNDLEY FARMS, INC., )

)

8 Petitioners, )

)

9 vs. ) DOAH CASE NOS.

) 92-3038

10 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

) 92-3040

11 Respondent, ) (Consolidated)

)

12 and )

)

13 MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

STATES OF AMERICA, FLORIDA DEPARTMENT OF )

14 ENVIRONMENTAL REGULATION, and FLORIDA )

WILDLIFE ASSOCIATION, )

15 )

Intervenors. )

16 ) _____________________________________________

HEARING BEFORE: HONORABLE J. STEPHEN MENTON

18 HEARING OFFICER

19 DATE: TUESDAY, APRIL 5, 1994

(2:05 P.M. - 3:20 P.M.)

LOCATION: HEARING ROOM 3,

21 DESOTO BUILDING

1230 APALACHEE PARKWAY

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: SUE HABERSHAW JOHNSON

CERTIFIED COURT REPORTER

24 REGISTERED PROFESSIONAL REPORTER

NOTARY PUBLIC

1 APPEARANCES: (ALL VIA TELEPHONE)

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

3 and Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE

Hopping, Boyd, Green & Sams

5 123 South Calhoun Street

P. O. Box 6526

6 Tallahassee, Florida 32314

(904-222-7500)

Representing Petitioners, Florida Sugar Cane

8 League, Inc., and United States Sugar

Corporation:

WILLIAM L. HYDE, ESQUIRE

10 Earl, Blank, Kavanaugh & Stotts

Suite 350

11 215 South Monroe Street

Tallahassee, Florida 32301

12 (904-681-1900)

13 -and-

14 RICK J. BURGESS, ESQUIRE

MARK T. KOBELINSKI, ESQUIRE

15 Earl, Blank, Kavanaugh & Stotts

One Biscayne Tower, Suite 3636

16 Two South Biscayne Boulevard

Miami, Florida 33131

17 (305-358-3000)

18 Representing Respondent, South Florida Water

Management District:

RUTH P. CLEMENTS, ESQUIRE

20 South Florida Water Management District

P. O. Box 24680 (33416-4680)

21 West Palm Beach, Florida 33416

(407-686-8800)

1 APPEARANCES, CONTINUED (ALL VIA TELEPHONE):

2 Representing Intervenor, The United States

of America:

THOMAS A. WATTS FITZGERALD, ESQUIRE

4 SUZAN HILL PONZOLI, ESQUIRE

CATHY STARKE, ESQUIRE

5 Assistant United States Attorneys

Southern District of Florida

6 Third Floor

99 Northeast 4th Street

7 Miami, FL 33132-2111

(305-536-5477)

* * * * *

ALSO PRESENT: (VIA TELEPHONE)

YVONNE SANANDRES

* * * * *

INDEX

ITEM PAGE

HEARING COMMENCED . . . . . . . . . . . . . . . . . . 4

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 61

CERTIFICATE OF REPORTER . . . . . . . . . . . . . . .62

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 2:05 P.M.)

3 HEARING OFFICER: Let me see if I can put it on

4 conference, because we have the court reporter here.

5 TELEPHONE OPERATOR: Okay, can you hear me?

6 HEARING OFFICER: Yes.

7 TELEPHONE OPERATOR: It might be because of your

8 room, because I didn't hear this when I was talking

9 to you when you were on the hand phone.

10 HEARING OFFICER: Let me see if I turn the volume

11 down if that helps.

12 TELEPHONE OPERATOR: Okay.

13 HEARING OFFICER: Is that any better?

14 TELEPHONE OPERATOR: Can you hear me?

15 HEARING OFFICER: Yes, I can hear you.

16 TELEPHONE OPERATOR: It might just be me hearing

17 you, so we'll take a roll call and see if they can

18 hear you okay.

19 HEARING OFFICER: Okay.

20 TELEPHONE OPERATOR: One moment. Thank you very

21 much for holding, everyone. I'm going to take a brief

22 roll call.

23 Ms. Ponzoli, are you on?

24 MS. PONZOLI: Yes, I am. I'll put it on speaker

25 now, to make sure I'm still with you. One second.

1 TELEPHONE OPERATOR: Okay.

2 MS. PONZOLI: Okay?

3 TELEPHONE OPERATOR: Okay. Mr. Burgess, are you

4 on?

5 MR. BURGESS: Yes.

6 TELEPHONE OPERATOR: Mr. Green?

7 MR. GREEN: Yes.

8 TELEPHONE OPERATOR: Mr. Menton?

9 HEARING OFFICER: Yes.

10 TELEPHONE OPERATOR: Mr. Kobelinski?

11 MR. KOBELINSKI: Yes, and with me is Ruth Clements

12 from the District.

13 TELEPHONE OPERATOR: And Yvonne Sanandres?

14 MS. SANANDRES: Yes.

15 COURT REPORTER: I'm sorry, I couldn't...

16 HEARING OFFICER: We missed that last one.

17 TELEPHONE OPERATOR: Yvonne Sanandres.

18 Okay. Mr. Hyde, are you there?

19 MR. HYDE: Yes, I am.

20 TELEPHONE OPERATOR: Okay, your ID Number after

21 this call will be WR-49003, and our 800- number is

22 232-1234, in case you need any further assistance.

23 HEARING OFFICER: Okay.

24 TELEPHONE OPERATOR: Thank you for using AT&T.

25 As soon as the other two parties call us we will add

1 them to your call.

2 HEARING OFFICER: Thank you.

3 TELEPHONE OPERATOR: Thank you for using AT&T.

4 HEARING OFFICER: Thank you. I did not hear the

5 identification of the person after Ms. Ponzoli.

6 MS. PONZOLI: Mr. Menton, I don't think I said

7 anything. I think you're referring to the next person

8 in line, but I do have Tom Watts Fitzgerald and Cathy

9 Starke with me.

10 HEARING OFFICER: Okay. Who was the next person

11 in line after Ms. Ponzoli?

12 MR. BURGESS: Rick Burgess.

13 HEARING OFFICER: Okay. I thought there was someone

14 between there that I didn't catch. All right, maybe

15 there wasn't.

16 The operator referred to two other people who were

17 supposed to be calling in. Who are they?

18 MR. HYDE: Mr. Menton, this is Bill Hyde. I think

19 I know something about that.

20 That would be Paul Nettleton and Lee Killinger.

21 I think that we can move forward without them, because

22 the motions that would have been relevant to their

23 concern we have addressed between ourselves, and I can,

24 you know, represent that at the time.

25 I also wanted to suggest to you that, or outline

1 to you what really needs to be resolved today. It

2 might help narrow the scope of this hearing.

3 HEARING OFFICER: Okay.

4 MR. HYDE: Our pending motion in limine that goes

5 to the McVicker deposition and the subject of proposed

6 plan amendments to changes to the adopted plan is not an

7 emergency motion, and it does not need to be argued

8 here today. It was inadvertently included in the

9 notice of the hearing.

10 So the point being we don't need to argue about

11 it today.

12 HEARING OFFICER: Okay.

13 MR. HYDE: The motion to compel in limine as to the

14 designated representatives for water quality violations,

15 I believe that the League has reached basically an

16 agreement or accommodation with the representatives

17 of the Department and the District, specifically

18 Mr. Killinger and Mr. Nettleton, and I spoke with

19 Mr. Nettleton this morning. I haven't spoken with

20 Mr. Killinger.

21 But he's going to file a clarification to our

22 motion as to what the agreement constitutes, but I

23 think it's been taken care of as to those people and

24 those issues.

25 The motion to compel in limine as to the designated

1 rep for the water quality violations witness of the

2 United States, I think we may be able to resolve very

3 quickly, if the United States will agree to do in

4 effect what the District and the Department have

5 agreed to do, and we can get to that in a moment.

6 The only really pending motions at this time

7 would be the motion to compel as to the Dorn

8 transects, which Mr. Kobelinski is prepared to argue,

9 and I would suggest that goes first, it's fairly

10 straightforward, and the second would be the motion

11 to compel as to the documents of Dr. Ron Jones, and

12 again that motion needs to be argued at this time,

13 particularly since the deposition, the followup

14 deposition of Dr. Jones is set for tomorrow in Miami,

15 and then I guess there would be a final motion which

16 would be the United States' emergency motion as to

17 the resumed deposition of Dr. John Davis, and I guess

18 that one needs to be argued, too. I presume the

19 United States wanted to bring that up today.

20 So those are really the motions to be argued, and

21 I would like to if I may first deal with the motion to

22 compel as to the designated representatives for

23 water quality violations and suggest a solution that

24 might obviate the need for any argument on that forum.

25 MS. CLEMENTS: Excuse me, Mr. Hearing Officer?

1 HEARING OFFICER: Yes?

2 MS. CLEMENTS: I'm Ruth Clements from the

3 District.

4 I have spoken to Mr. Nettleton this morning concerning

5 this, and I was not here yesterday when the conversation

6 took place regarding these depositions.

7 I have not see the motion. I understood it was

8 faxed to us early this morning.

9 However, the characterization of the conversation

10 that took place is not completely accurate in the

11 District's eyes, and as Bill said we will be filing a

12 clarification of what we believe was agreed to yesterday.

13 As it is set forth in that motion it is not what we

14 agreed to.

15 MR. HYDE: I understand that. I tried to

16 communicate that to Mr. Menton. I did talk to Paul

17 Nettleton about an hour and a half ago on this very

18 subject, and I agree with him that he will be filing

19 a clarifying response, I guess.

20 HEARING OFFICER: Okay. Well, we'll deal with the

21 District and the DEP at a future time if we need to, if

22 there is not an agreement as to what was agreed to.

23 MR. HYDE: I think that based on what Mr. Nettleton

24 and I spoke about this morning there shouldn't be any

25 problem as to the District, and I presume that that

1 would be the same as to Mr. Killinger and the

2 Department.

3 I don't think the District can bind them. I just

4 think we just all need to make sure we understand what

5 the agreement was.

6 HEARING OFFICER: Ms. Clements, I recognize your

7 position at this point you do not concede what's in the

8 motion filed by the League, and I just don't think

9 it's right to get into that issue at this point until

10 we get some clarification from Mr. Nettleton and

11 see whether Mr. Hyde agrees with it.

12 MS. CLEMENTS: Mr. Menton, I'm going to be going

13 back to a deposition that's ongoing right now, but I

14 do want to make sure you will not be hearing a motion

15 concerning the ongoing revisions supposedly of the

16 SWIM plan. I believe there is a motion in limine.

17 I have not seen it, also.

18 HEARING OFFICER: That's one Mr. Hyde just

19 indicated was not an emergency, and I think that that

20 raises some very important issues, and I'm not sure

21 all parties will want to have an opportunity to respond

22 to.

23 It's not necessary that that be resolved prior

24 to the completion of the discovery schedule this week,

25 so we'll just hold that one off.

1 MR. HYDE: It's not being argued today.

2 MS. CLEMENTS: Thank you very much.

3 HEARING OFFICER: We'll just argue the motion to

4 dismiss.

5 MS. CLEMENTS: Thank you.

6 (WHEREUPON, MS. CLEMENTS LEFT THE TELEPHONE LINE.)

7 MR. HYDE: Mr. Menton, back to the motion to

8 compel as to the designated representatives, let me

9 give you a little background.

10 We had been concerned as the League and U. S.

11 Sugar as to whether we had in fact all the information

12 and data and opinions as to the existence of water

13 quality violations in the Everglades Protection Area,

14 and that was the purpose behind the noticing of those

15 three particular designated representatives' depositions.

16 As a result of discussions with the District and

17 the Department counsel, Mr. Nettleton, and Mr. Killinger,

18 respectively, they have in effect told us that they

19 produced everything that they have to produce in that

20 regard, that the data has been made available to us,

21 and the witnesses that would testify to those issues

22 have been made available, and that the

23 documents have been turned over to us, and the opinions

24 have been expressed, and basically if that's the

25 representation of the United States then we may well

1 have everything we need in that regard.

2 So we can perhaps if they're willing in effect to

3 say the same thing or words to like effect, there may

4 not be any need to argue that at this time.

5 HEARING OFFICER: Ms. Ponzoli...

6 MR. HYDE: It's just to find out if we've got all

7 the information as to water quality, alleged water

8 quality violations and we have covered the waterfront

9 with witnesses' opinions and documents.

10 HEARING OFFICER: Obviously we have a firm witness

11 list at this point, so you know who all the witnesses

12 are. I would assume that all or virtually all of

13 those witnesses have been deposed at this point.

14 MR. HYDE: Right.

15 HEARING OFFICER: So it looks to me like you

16 were asking for some additional witnesses they haven't

17 listed to call...

18 MR. HYDE: It's not necessarily that way. My

19 concern really is addressed to the fact that this

20 discovery process has been ongoing for a very long

21 period of time, and some of the witnesses who had been

22 deposed a long time ago may have developed some new

23 information, data, or opinions since that time, and

24 I think that's what it's really directed to.

25 You are right in the sense that everybody has been

1 identified, but for example I took the deposition of

2 one of the Department's crucial witnesses in this

3 regard, Mr. Frank Nearhoof, about a year and a half

4 ago, and I just wanted to make sure that Mr. Nearhoof

5 or someone like Mr. Harvey for the Department had not

6 developed any new information and data about which we

7 were unaware or about which he developed opinions on.

8 But if, you know, there's no new opinions,

9 information, or data then we don't need to have a

10 followup deposition or a deposition of his character

11 to make sure we have effectively discovered the totality

12 of the case.

13 MS. STARKE: Mr. Menton, this is Cathy Starke on

14 behalf of the United States.

15 First of all, if that is in fact what Mr. Hyde's

16 concern is, I don't think it is appropriate for him to

17 be filing a notice of deposition of a designated

18 representative.

19 Instead what he should be doing is asking if any

20 of the people who have already been deposed have any

21 new opinions, and I think it's been pretty universal

22 that we have all asked that at the end of each

23 deposition that if any new information comes to

24 light it be provided to the other side.

25 The United States will not merely agree to do

1 whatever they have done, because we were not part of

2 the conversation yesterday concerning these

3 designated representatives, but we don't know what's

4 been agreed to.

5 Specifically the District is saying that what

6 was represented in the motion that we were served today

7 is not in fact an accurate characterization of the

8 discussion.

9 In addition, this entire matter was handled at the

10 July 6th, 1993, hearing, at which time the League

11 wanted better answers to interrogatories regarding the

12 same issue of water quality, and in fact, Mr. Menton,

13 at that time your ruling was that this was not an

14 appropriate form of discovery, that obviously all

15 exhibits and all witnesses would have to be turned

16 over ahead of time, and I think they complied with

17 that as for DEP and the District, and therefore the

18 United States request is denied.

19 HEARING OFFICER: Well, okay, I think Ms. Starke

20 raises a good point, Mr. Hyde, in that the way that

21 you've gone about it is a little bit awkward, I think.

22 If I understand what you're seeking, it's not so much

23 the designation of any particular witness but simply to

24 confirm that the witnesses you have already deposed

25 haven't reached any different conclusions. Is that

1 what you're saying?

2 MR. HYDE: Well, I guess that's another way of

3 saying the same thing.

4 My concern, why we did a designated representative,

5 was to make sure that a knowledgeable person would be

6 able to talk to us in a deposition as to any new

7 information that might have been generated that

8 was not previously disclosed to us in our discovery

9 efforts.

10 MS. STARKE: Mr. Hearing Officer, Cathy Starke,

11 I would only point out that the designated

12 representative was supposed to be someone who knew

13 about the entire Everglades Protection Area, and

14 obviously there is not one individual that's going

15 to have that type of knowledge, as was brought up at

16 the July 6th hearing, and as Your Honor agreed with.

17 MR. HYDE: Well, that's the very purpose why we

18 have a designated representative type of designation,

19 because we do need perhaps to get more than one

20 person.

21 I think the intent remains the same. We just want

22 to make sure we have covered everything that we need

23 to cover.

24 If the United States can represent that they have

25 turned over all of that information to us and that the

1 witnesses have been available, and their opinions have

2 been expressed, then the issue may well be a moot

3 point.

4 HEARING OFFICER: Well, again I don't think

5 they are going to be able to come in here and add new

6 witnesses to talk about water quality violations

7 that have not been identified and deposed at this

8 point. I mean, I would assume that's all been done.

9 MR. HYDE: Well, I hope that's been done, too,

10 but it sounds like based on what everyone has been

11 saying and what you have been representing yourself,

12 Mr. Menton, that the issue may well have resolved

13 itself by now.

14 So with that understanding I guess I would just

15 simply withdraw the motion at this time.

16 HEARING OFFICER: Okay. All right. I think

17 that's the appropriate way to do it.

18 I mean, if we get to a point in the hearing where

19 all of a sudden some witness is proffered who has

20 never been previously identified and is going to talk

21 about water quality violations, then I'm sure you

22 will be jumping out of your chair objecting, and

23 we'll just have to listen to it then.

24 At this point the District and the federal

25 government as well as the Department have all identified

1 the witnesses they intend to call.

2 You know who those witnesses are. I assume you

3 asked what they intend to testify to, and you know

4 the witnesses who are testifying about water quality

5 violations.

6 So I'm not quite sure what you're seeking. If

7 you are going to withdraw the motion I guess there's

8 no sense spending any more time on it.

9 MR. HYDE: Well, I think I'll just let it stand

10 by what you have said so far and withdraw the motion.

11 I think the understanding of the parties should be

12 fairly clear by now.

13 HEARING OFFICER: Okay.

14 MR. HYDE: I would suggest at this time maybe the

15 remaining motions are as to the Dorn transects, the

16 Ron Jones documents, and the United States' emergency

17 motion as to Dr. Davis, I would suggest the Dorn one

18 might be an appropriate one for Mr. Kobelinski to

19 present.

20 HEARING OFFICER: Okay.

21 MR. KOBELINSKI: I appreciate that, given the

22 fact that we are taking a break in depositions so that

23 we can proceed with the hearing on the Dorn motion.

24 HEARING OFFICER: This is Mr. Kobelinski?

25 MR. KOBELINSKI: Yes, sir, this is Mr. Kobelinski,

1 Mark Kobelinski.

2 I deposed Dr. Soukup, who is the United States'

3 expert witness...

4 HEARING OFFICER: Okay, I have read the motion, so

5 I know what the issues are. Why don't I just see

6 what the position of the United States is?

7 MS. PONZOLI: This is Suzan Ponzoli on behalf

8 of the United States.

9 I think this is another last minute crisis.

10 Dr. Soukup answered their questions on the vegetative

11 study. If they don't think the answers are sufficient

12 or they thought they were somehow inadequate, they can

13 cross examine Dr. Soukup at the time of trial, and

14 that's certainly their pleasure to make him look less

15 knowledgeable than they think he should be on that...

16 HEARING OFFICER: Mr. Ponzoli, excuse me for

17 interrupting, but I guess as I understood the motion

18 the objection was that Dr. Soukup had testified that

19 he was relying heavily on the vegetative studies that

20 were conducted by Mr. Dorn or Dr. Dorn, I don't know

21 if he's a doctor or not, and that he did not know

22 exactly how those studies were conducted, and they

23 wanted to have an opportunity to understand how the

24 sampling was done, so they could determine whether there

25 was any basis for challenging the scientific validity

1 of the studies upon which Dr. Soukup was relying.

2 This kind of goes to some of the issues we

3 discussed about trying to stipulate to certain

4 underlying studies and factual predicates, if possible,

5 but at least it sounds to me like the League is

6 concerned that they have not had an opportunity to

7 understand exactly how the studies were conducted,

8 and that's what they're seeking to find out, so that

9 they can determine whether there's any basis for

10 challenging the underlying studies that are the basis

11 for his opinion.

12 MR. KOBELINSKI: Mr. Hearing Officer, that's

13 exactly the case, particularly true given the fact

14 that Dr. Soukup said he was not familiar with the

15 sampling techniques other than predominantly to say

16 it was non-random, i.e. Dr. Dorn, I believe he is a

17 doctor, specifically went out and chose at particular

18 areas which vegetation he would sample on a non-random

19 basis, which really can put a real bias on the

20 results.

21 MS. PONZOLI: Well, Mr. Menton, let me point

22 something out to you.

23 Thee existence, it's Mr. Dorn actually, I'd like

24 for him to be a Ph.D., but it's Mr. Dorn, the existence

25 of Mr. Dorn has been well known to the League since

1 1989 or 1990, and at one time in the federal litigation

2 all of his documents and underlying work were

3 turned over to the League. He was even listed at

4 one time as a witness.

5 We have discussed Mr. Dorn in the past in this

6 DOAH proceeding very specifically. Mr. Dorn has a very

7 serious problem with attorneys and depositions, and he

8 was blown out in the hurricane, and it was agreed

9 among the parties that Dr. Soukup would answer the

10 questions.

11 I really believe that their challenge, I think

12 they're relying heavily and with a greater emphasis

13 than is appropriate. Dr. jones participated in the

14 vegetative work. I don't recall their asking

15 Dr. Jones any questions about the work, and the only

16 question that I can recall from the pages they've

17 cited is Dr. Soukup was unable to answer was the

18 length of the transect, which was in the report.

19 They have all of the drafts of the report by

20 Mr. Dorn.

21 So I would believe that someone who's been known

22 to them for four to five years and in the last week of

23 discovery they decide they have to take his deposition,

24 I think we're out of time.

25 MR. KOBELINSKI: Mr. Hearing Officer, if I could

1 just briefly respond to that.

2 Number one, although as Ms. Ponzoli said

3 Mr. Dorn we have been aware of, if you want to put it

4 that way, four to five years, Dr. Soukup is the first

5 expert from any side who has stated he's relying upon

6 this transect study.

7 Number two, we just received the draft and

8 final report, not the underlying data from the study,

9 with Dr. Soukup's documents, so we were not specifically

10 aware of it as Ms. Ponzoli would imply.

11 Number three, with regard to Dr. Soukup, perhaps

12 her method of allowing Dr. Soukup to respond for the

13 methodology used for the sampling study would have

14 worked, had he at least consulted with and spoken with

15 Mr. Dorn about it, but he stated during his deposition

16 he had not, and he candidly admitted, and I can provide

17 those sections to you, that he was not familiar with

18 the sampling techniques that were done.

19 Finally with regard to Dr. Jones, Dr. Soukup

20 testified Dr. Jones was not involved in the

21 vegetative sampling and actually did his phosphorus

22 sampling a week or more after all of the vegetative

23 sampling was conducted and complete.

24 The deposition was clear that he is relying upon

25 it. I would note further that in the draft it identifies

1 five transects that were conducted. One was dropped

2 with no explanation. Dr. Soukup assumed it was dropped

3 because it was redundant. It's somewhat ironic that

4 the redundant one was the one that showed no correlation

5 to phosphorus and vegetative changes.

6 We do need to depose Mr. Dorn, or they can just

7 not rely on that report at all.

8 HEARING OFFICER: Okay. Again I'm at a loss,

9 not having sat through all the depositions and not

10 totally understanding what has transpired in the

11 discovery, but from just glancing over the excerpts

12 of the deposition that were attached to the motion,

13 and that's all I have had an opportunity to do,

14 because the motion wasn't filed until late this

15 morning, but in just glancing over the excerpts of

16 the deposition that was filed it did appear to me

17 that Dr. Soukup seemed to be saying that he was relying

18 upon the vegetative study that was conducted by

19 Mr. Dorn, and that he did not know the sampling technique

20 or the procedures that were followed.

21 And if that's the case, I think the petitioners

22 are entitled to determine how the sampling was

23 conducted if that is serving as a basis for Dr. Soukup's

24 testimony.

25 It's simply a matter of understanding the

1 foundational studies upon which the expert is

2 relying, and if there's no stipulation possible with

3 respect to those studies then the petitioners are

4 entitled to learn exactly how the studies were

5 conducted to determine whether there's any basis

6 for challenging the studies that were relied upon.

7 I think that's fairly elementary.

8 Now we are getting very late in the discovery

9 process here, and I understand that the schedules

10 are very difficult for everybody, so I don't know that

11 we can easily just add somebody at this point, and it

12 seems to me the issues we are talking about are

13 fairly discrete, and they go specifically to some

14 specific studies that were performed by one witness

15 that were relied upon by Dr. Soukup.

16 There are a lot of ways that we can deal with

17 this particular issue, but, for example, I mean, we

18 can wait until after Dr. Soukup has testified at the

19 hearing, and at that point it may be a little clearer

20 to me as to how important these underlying studies

21 are or if they are important at all or even if they

22 come up, and if necessary we can take an adjournment

23 in the hearing and allow some discovery to be taken

24 with respect to the procedure by which those studies

25 were conducted.

1 I'm open to suggestions as to how we deal with

2 this issue, given the late time frame that we're in,

3 but at least from the excerpts that I have seen that

4 were attached to the motion it does appear to me that

5 Dr. Soukup very clearly was relying upon the vegetative

6 studies and that there is some question as to how those

7 studies were conducted.

8 I think those questions need to be answered in

9 some way, shape, or form.

10 MS. PONZOLI: Mr. Menton, I can live with that

11 as a resolution very easily, and if we don't even

12 present his reliance at trial then they don't need the

13 depo. If we do we have made it clear that we

14 believe they are entitled to do Dorn, and I will be

15 sure that Dorn becomes available.

16 MR. KOBELINSKI: Mr. Hearing Officer, this is Mark

17 Kobelinski, I'm fairly reluctant to agree to that,

18 because I believe it's disruptive. I also want to

19 note that if that occurs after we have, if there is a

20 break and we have deposed Mr. Dorn we would want to

21 perhaps at that point introduce his deposition into

22 evidence, but also we would then like the opportunity

23 to cross examine Mr. Soukup after we have deposed

24 Mr. Dorn.

25 HEARING OFFICER: Certainly. If that becomes an

1 issue and we have to deal with it that way, then

2 I will certainly be sympathetic to such a request.

3 MR. KOBELINSKI: I would also note, Mr. Menton,

4 as a possible other solution it would be that we

5 depose Dr. Dorn on solely this particular transect

6 study, which would certainly not take more than a day

7 and would likely take substantially less than a day.

8 HEARING OFFICER: Well, is the only witness who

9 has testified in any way regarding the transect study

10 Dr. Soukup? Is he the only one that's relying upon this

11 vegetative study?

12 MR. KOBELINSKI: He's the only one I'm aware of.

13 Ms. Ponzoli would perhaps have a better response to

14 that.

15 MS. PONZOLI: I believe that's accurate, Mr.

16 Menton.

17 HEARING OFFICER: Okay.

18 MS. PONZOLI: I think we are in a very compressed

19 time frame, Mr. Menton, and as you will begin to see

20 there are a fair number of primary witnesses, such as

21 Dr. Davis and Dr. Shannon, etcetera, who in this

22 tiny two weeks we have before trial have got to be

23 deposed. I just, I don't...

24 HEARING OFFICER: I agree with you, Ms. Ponzoli.

25 I think given what I'm seeing, everybody's under a real

1 time crunch, and to try to add Mr. Dorn at this point

2 is probably not appropriate, given the discrete nature

3 of the issue in which he is involved, and we can work

4 out an accommodation.

5 As I have indicated before during the course of

6 the proceedings we will have some lulls or

7 recuperative time, and during that time period we can

8 establish an appropriate schedule for taking

9 Mr. Dorn's deposition if necessary.

10 MS. PONZOLI: Thank you, Mr. Menton.

11 MR. KOBELINSKI: Mr. Menton, this is Mark

12 Kobelinski. I will be signing off now to return to

13 my deposition. I appreciate it.

14 HEARING OFFICER: Okay.

15 (WHEREUPON, MR. KOBELINSKI LEFT THE PHONE LINE.)

16 HEARING OFFICER: All right. The next issue has

17 to do with the motion to compel as I understand

18 documents of Ron Jones?

19 MR. HYDE: Yes, Mr. Menton, this is Bill Hyde.

20 I don't need to add a whole bunch to what I have set

21 forth in the motion itself, so I'd just like to adopt

22 and incorporate those comments by reference here.

23 I did want to just add one brief mention to that

24 discussion, and that is I did try to discuss with

25 Ms. Ponzoli this morning some other ways of accomplishing

1 the goals.

2 I have made since that time an additional attempt to

3 narrow the requests even further, and what I would like

4 to do is state at this point what I'm trying to get

5 from Dr. Jones in terms of a production of documents

6 is just his data that relates to the work he has done

7 as follows, and I'm just referring to what he identified

8 in his previous deposition, that he measured whether

9 phosphorus had accumulated in the soils of the Park

10 and the Loxahatchee Refuge, and second he measured the

11 areal, a-r-e-a-l, an extent of phosphorus concentrations

12 in the soils along transects in the Park and the

13 Refuge and the Water Conservation Areas 2-A and 3-A,

14 and then he measured the alkaline phositase activity

15 in the water at sampling points along the transects at

16 Everglades National Park and also apparently in a

17 perimeter canal in the Refuge.

18 That's what I would like to get from the

19 United States for purposes of our deposition. Everything

20 else in my motion basically stays the same.

21 Ms. Ponzoli did indicate to you this morning that

22 there was no way she could get that by tomorrow, anyway,

23 if you were to grant the motion, so I would agree also

24 at this time that if it is your pleasure to have them

25 produce these documents to us we could schedule Dr. Jones

1 for perhaps sometime next week. That is a further

2 accommodation.

3 HEARING OFFICER: Mr. Hyde, let me see if I can

4 just clarify what you're seeking.

5 As I understand what has transpired here, Dr. Jones

6 has already been deposed for a couple of days?

7 MR. HYDE: That's correct.

8 HEARING OFFICER: And prior to his deposition he

9 was requested to provide the documents upon which he

10 was relying in accordance with the procedures we have

11 established for all the witnesses in this case, and

12 he produced a large volume of documents, but you were

13 unable to determine...

14 MR. HYDE: The bottom line is we can't figure

15 out what they are. Half of them don't have dates on

16 them. We can't correlate particular data sets to

17 particular areas, and I think it's really crucial for

18 us to be able to do that, and...

19 HEARING OFFICER: I mean, aren't those really

20 cross examination questions, Mr. Hyde?

21 MR. HYDE: Well, no, they aren't. They're very

22 much discovery questions, because we have some very

23 real doubts as to the appropriateness of some of this

24 data being what it has been represented to be, and

25 I don't think it's really cross examination questions

1 unless you think that it would be appropriate for me

2 at trial to just have him sit there and identify each

3 and every document that he relies on and have him

4 explain each and every document, how it correlates to

5 particular sites or whatever.

6 It's very important for us to do this before

7 final hearing what this data is, what it constitutes,

8 what areas it's taken from, how it was taken, so that

9 we can prepare an appropriate defense, if necessary,

10 and I suspect it is going to be necessary, because we

11 have some very real questions about his data and

12 whether it really represents the things he says it

13 does.

14 HEARING OFFICER: Well, I don't recall exactly

15 what the earlier discovery order provided regarding the

16 production of documents and whether there was a

17 requirement that they be organized or categorized

18 in any particular fashion. Maybe you can refresh my

19 recollection.

20 MR. HYDE: Well, I don't know that it specifically

21 did, either, but I think most if not all of the other

22 witnesses in this case in producing data made some

23 concerted effort to have it fairly well organized and

24 identifiable.

25 I can certainly speak to the witnesses that the

1 League has put on and the Coop and the District and

2 the Department and most if not all of the other

3 witnesses of the United States.

4 It's just in this one particular regard we have

5 extreme difficulty in figuring out what Dr. Jones'

6 data is.

7 I didn't intend this to become an evidentiary

8 hearing or anything like that, but the fact of the

9 matter is, you know, I have had several people, like

10 Dr. John Davis, Dr. Curtis Richardson, look at that,

11 and they can't figure it out. They are certainly a

12 lot more savvy on these data collection efforts than

13 I am.

14 It's just important that we be able to identify

15 what these documents are, because if we don't we're not

16 going to have a real handle on what Dr. Jones is

17 saying, and more importantly we will have been deprived

18 of an opportunity to undercut and undermine that data

19 before trial.

20 HEARING OFFICER: Well, what are you asking me to

21 order them to do?

22 MR. HYDE: I would like them to bring to a followup

23 deposition Dr. Jones' data, so that we can identify

24 it, and when I say, "Okay, Dr. Jones, you said you

25 collected some data in the Loxahatchee Refuge on soil,

1 so what is that data, Dr. Jones, where is it, which

2 document, what does it relate to, does it relate to

3 a particular map," things like that. It can be a

4 very simple deposition in that respect. It's not an

5 opinion type of deposition, just trying to put data

6 to opinions that have already been uttered, and then I

7 could go down the other ones.

8 Now the only other way I can think to do this,

9 Mr. Menton, is to take the documents that he produced

10 for us, and they are very haphazard, I mean, it's just

11 a jumble, and say, "Dr. Jones, I need to know what your

12 data is on the Loxahatchee Refuge, so will you look

13 through this and tell me where it is?" And then I

14 could go on to the next one.

15 I suggest that would be a rather inefficient and

16 inappropriate way to do things, and in all likelihood

17 based on the previous deposition experience he would

18 find there are missing documents.

19 I think it's important and particularly crucial

20 that he brought his documents to us so that we could,

21 you know, go through this in a fairly sensible and

22 organized fashion and get it done in one fell swoop.

23 HEARING OFFICER: Okay. There's as I understand

24 it no question that he has produced all the documents?

25 That's not the issue?

1 MR. HYDE: He said he has, and I'm taking him

2 at his word. I'm trying to figure out what the

3 documents are, and if I can't figure it out from our

4 documents and all he says during his deposition is,

5 "Well, I produced them to you," you know, but he

6 can't, he says, well, we may have this, "But I'm

7 not sure if you do or not," we can't figure out what

8 they are.

9 That's why I think it would be appropriate for

10 him to bring his documents. I presume he's got them

11 organized in some fashion. I would hope the United

12 States has done that by now. And we can sit there and

13 go through and identify these specifically.

14 But given the previous state of the document

15 production, which is frankly a shambles, we need to

16 take a look at it again.

17 MS. PONZOLI: Mr. Menton, if I may, I'm really

18 deeply, deeply offended by the representations that

19 Mr. Hyde is making to you about haphazard and

20 shambles and disorganized, and there's a whole

21 different side to this document production and these

22 depositions that really needs to be part of this

23 record.

24 We are going into the 10th day of Dr. Jones'

25 deposition. He was deposed for five full days in the

1 federal case, deposed by the League for several days,

2 and all of his data and documents were produced at

3 that time. There was no problem.

4 He was again in this DOAH proceeding, he has

5 been deposed for four days. Back in June of '93 the

6 League and the Coop requested his documents. They were

7 extensive requests. We produced 22 boxes that represent

8 10 years of Dr. Jones' work in the Everglades.

9 We did not as Dr. Landing did hold things back and

10 say, "We have university privilege," or other kinds of

11 privileges. We gave them virtually everything they

12 asked for.

13 They did not take everything out of the single

14 file, and they did not ask for file locators or file

15 markers, so they did their first problem for themselves.

16 But beyond that, beyond that, both the League and

17 the Cooperative while we were in mediation lost his

18 documents. We came out of the mediation, the settlement

19 fails, they both arranged to do the deposition in

20 February and insisted they didn't have his documents,

21 and I said, "Guys, you took his documents. I'll give

22 you what you chose again, but go look. You have them."

23 Both of them finally found that they did in fact

24 have Dr. Jones' documents. The Coop renoticed

25 Dr. Jones for February 7th. The League didn't even bother

1 to notice him.

2 I called the League on the Friday before his

3 deposition started and said, "I can't find the

4 notice from you. Are you noticing Dr. Jones?"

5 So Friday afternoon they noticed Dr. Jones again,

6 19 different categories of documents.

7 We gave them the updated documents starting Monday.

8 They have had all of these documents.

9 We go through four days of depositions, and we

10 go through such questions as, "Is this your document?"

11 And he said, "Of course, it's my document," or, "It's

12 not my document," whatever it was. They never do a

13 rational, "What are your opinions, and which of these

14 documents support your opinions?" Those types of

15 questions are not asked.

16 So I would like to point out if the documents

17 were in shambles, they were in shambles from last June,

18 and they should have approached you prior to now

19 with this accusation.

20 During the course of the deposition Dr. Jones

21 repeatedly pointed out to them that they would have a

22 map or they would have a document, and he would find

23 it among the documents for them.

24 He brought additional documents during the course

25 of the deposition to supplement if they thought they

1 didn't have something or if they wanted something.

2 In the raw data for the Refuge as you will recall

3 they asked for that in front of you, and I said we

4 would re-create it. We re-created it for you, because

5 it's a machine type of generated thing, and you have to

6 go back and pull the raw data out.

7 We did that. They didn't like their copies. We

8 did it a third time for them. Now they're telling

9 me they want it a fourth time.

10 I will tell you I have spoken to Dr. Jones. What

11 they offered me this morning was his work south of

12 the 12-C and his work in the Refuge.

13 Dr. Jones said it was his opinion they have all

14 of those documents and data.

15 He said if they will bring what they have to the

16 deposition tomorrow he will try to help them sort

17 it, and he will try to supplement if they honestly

18 can't find something that's missing, but this is a

19 problem, Mr. Menton, that has been created by I guess

20 the attorney for the League, and it's so offensive

21 that they accuse Dr. Jones of having poor records

22 when they have not done their job appropriately,

23 and I think that my preference would be that they can

24 figure it out themselves, but I am willing to help them

25 figure it out at the depo tomorrow. I am not willing

1 to produce Dr. Jones beyond tomorrow. That it is.

2 We are out of time.

3 HEARING OFFICER: Okay.

4 MR. HYDE: Mr. Menton, I'd like to just briefly

5 respond. I just have to tell you that I just totally

6 disagree with Ms. Ponzoli's characterization of

7 what's occurred. I mean, it really is a travesty of

8 what actually did occur in fact.

9 MS. PONZOLI: Mr. Hyde, and I will...

10 HEARING OFFICER: Hold on. Stop. This is not

11 productive. We don't need to waste any more time on

12 this. Okay? I think I have heard enough. There's

13 no sense in going back and forth.

14 Both of you have preserved the record in terms of

15 what your position is, and that's all we need to do.

16 I'm not sure that there is any relief I can afford

17 you, Mr. Hyde. I think your only recourse is to take

18 Dr. Jones' deposition, and I would hope that he will be

19 able to help you understand the documents you have and

20 be able to figure that out, and it certainly would be

21 to his benefit if he can do that expeditiously at the

22 front of the deposition, because that means he'll get

23 out of there quicker.

24 So I think there's some built-in incentive on his

25 part to try to do so.

1 But in terms of the relief you're seeking I

2 don't think there's anything I can give you sitting in

3 the position that I am. I haven't seen the documents,

4 and I don't even know other than very generally what

5 his testimony will be about, let alone what is

6 contained in the documents. For me to sit there and try

7 to order him to produce documents in a certain form

8 I don't think is appropriate at all.

9 MR. HYDE: Well, I accept your ruling, Mr. Menton,

10 but I think that I will have to simply reserve the

11 right to raise the issue anew at some point when he

12 presents his evidence at trial.

13 It really is a crucial problem, and I do believe

14 sincerely in saying this that we haven't got a good

15 handle on this, and it is not our fault.

16 HEARING OFFICER: Well, I don't know that's gone

17 on in the deposition, and I don't know how it's been

18 taken, but you certainly need to have an opportunity to

19 understand what Dr. Jones is going to testify about and

20 the basis for his testimony.

21 I would hope that after four days of deposition

22 you'd have a pretty good grasp on that.

23 MR. HYDE: Well, let me say that first of all I

24 deposed him for two days and a little bit into a third,

25 and the Coop deposed him for approximately two days.

1 on primarily their mercury related concerns.

2 So it's really inappropriate to say that I have

3 done four days with Dr. Jones.

4 Secondly, I would note that contrary to what

5 Ms. Ponzoli said earlier I did ask Dr. Jones about

6 what his opinions are, and I did try to conduct the

7 deposition in the way I felt was fruitful and

8 appropriate, and I know what his opinions are.

9 I think I represented earlier I'm just trying to

10 find out a way to connect his opinions to his

11 underlying data.

12 MR. GREEN: Mr. Menton?

13 HEARING OFFICER: Yes?

14 MR. GREEN: This is Bill Green. May I jump in

15 just briefly?

16 HEARING OFFICER: Okay.

17 MR. GREEN: Just to tell you that I think I see

18 where you're headed. I think there may be some need

19 to revisit this if tomorrow's deposition is not

20 successful.

21 It could be a lot of these questions will be

22 favorably answered tomorrow, and if that happens,

23 great, and maybe we move past it, but I would like to

24 ask you to keep an open mind after the end of the day

25 tomorrow if Mr. Hyde's concerns have not been

1 satisfactorily addressed.

2 Without personalizing this I think there may

3 be some merit here, and I know the concerns expressed

4 on both sides, but if we get to the end of the day

5 tomorrow and it's incomprehensive in terms of the

6 things Mr. Hyde talked about, I assume he would want

7 to bring this back to you.

8 That might not happen, but this is a gray area,

9 and I think there's some merit in not personalizing

10 it to the concerns Mr. Hyde expressed.

11 HEARING OFFICER: I haven't closed my mind to

12 entertaining a proper motion at the conclusion of the

13 deposition. I will listen to what the parties have to

14 say if there's some motion that's been filed.

15 Hopefully it won't be necessary, and if unfortunately

16 it is I'll sit down and I'll listen and try to get a

17 better grasp on what's gone on in the five days of

18 deposition that have been taken, but, you know, at

19 this time I don't think there's any relief that I can

20 afford you. I think we need to proceed with the

21 deposition, and hopefully Dr. Jones can help you

22 tomorrow to understand what's in his documents and

23 how they support his opinions, and we won't need to

24 revisit the question.

25 MR. HYDE: Okay.

1 HEARING OFFICER: All right. The remaining motion

2 is the U. S. motion regarding John Davis' depo. I

3 just got that motion about 15 minutes before the

4 conference call and did not have an opportunity to

5 review that one at the same depth as I did the prior

6 motions.

7 Ms. Ponzoli or Ms. Starke, do you want to briefly

8 summarize exactly what's going on with respect to

9 that deposition?

10 MR. FITZGERALD: Mr. Menton, this is Tom

11 Fitzgerald. I'll be handling that, since I was involved

12 in it with Dr. Davis.

13 HEARING OFFICER: Okay.

14 MR. FITZGERALD: I'll just give you the highlights,

15 and we don't need to beat it to death.

16 What happened was Dr. Davis was initially set for

17 deposition in May of '93, and that didn't come off

18 because of the mediation effort.

19 thereafter he was set for March, and he was

20 noticed by the Department of Environmental Protection

21 and cross noticed by the United States.

22 We had indicated we wanted him for a week. In

23 the course of attempting to set his deposition date

24 as early as we wanted, because we were told in part

25 that he would not have his final opinions until very

1 late in the process, so he was going to be set for the

2 week of March 14 through March 18.

3 You will recall that monday, March 14th, there

4 was a conflicting hearing, and because of Mr. Hyde's

5 desire to be at that and some other factors I won't go

6 into the United States and the DEP agreed not to start

7 him during that day, but put it off until the next

8 day.

9 In part that was based on the fact that there

10 were several aspects to his production.

11 The first aspect was 10 boxes of materials

12 approximately that were produced in Miami.

13 Originally Dr. Davis' depo was set for Miami, but

14 as an accommodation, a unilateral declaration, they

15 were moving him to Tallahassee, and then it was

16 determined the personal circumstances of one of the

17 counsel militated towards that, and everybody agreed.

18 As a result, discovery was split between the two

19 cities.

20 The 10 boxes in Miami were commercially

21 reproduced here, and it did cause a little bit of a

22 problem, because we had to go through the commercial

23 production, and they were not available until the

24 middle to late part of the week.

25 The second documentary phase of the production was

1 in Tallahassee. It started out being one box was

2 duplicated up there, and we had that about a week in

3 advance.

4 Thereafter on Thursday and Friday of the week

5 prior to his deposition additional materials arrived

6 in Tallahassee.

7 Counsel for DEP was advised of that. I found out

8 about it in a very left-handed way in conversation

9 with counsel having to do with logistics in Tallahassee

10 and the Monday hearing.

11 In any event, I never saw that material until I

12 got it Monday and left the hearing early to go look

13 at that.

14 I was told by counsel for DEP and myself that,

15 although I'm not representing DEP's position, that

16 we would not be able to complete Dr. Davis, and in

17 fact it turned out he didn't have final opinions, so

18 we would not have been able to do it anyway.

19 We started him Monday...

20 HEARING OFFICER: Monday when?

21 MR. FITZGERALD: I'm sorry. Tuesday, the 15th.

22 My consultants and experts had not had a chance to

23 get through all the electronic media that have been

24 provided. There is quite a volume of it.

25 I was going through the documents simultaneously as

1 Mr. Killinger was conducting the initial part of the

2 deposition, because there was so much and because of the

3 late receipt.

4 In any event we got through a couple of days of it.

5 I did a day of questioning. And come Thursday, the

6 17th, I believe it was, we halted the deposition in

7 order that two things might occur, the witness could

8 finalize his opinion, and secondly that we could complete

9 our review of his materials and make the final day as

10 productive as possible.

11 We discussed several times during that process with

12 counsel for the League when final opinions would be

13 available and emphasized the need to complete Dr. Davis'

14 deposition prior to the conclusion of the permitted

15 discovery period.

16 I told him then as I have before I was not going

17 to agree to putting it off any further.

18 As I note in my motion Dr. Davis has been on

19 this case almost six years. There's a 25-person firm

20 that's heavily involved throughout.

21 I don't accept he can't find the time to be

22 available during the last two-week period, assuming

23 he has his final opinion, because they have taken

24 over a million dollars in billings on this case, and

25 that certainly gives the League a claim to priority on

1 his time when we are this close to final hearing.

2 The second point is I don't accept the

3 nonavailability of counsel. I have had to forego

4 being at three depositions I should have been at

5 because of conflicts in depositions. Because the

6 League did not have two statisticians with final

7 opinions when they told us they would we had to

8 redepose both statisticians from the West Coast.

9 One they did here one day, and then counsel for

10 the District and I had to fly to Seattle Thursday and

11 Friday last to finalize another person who we were

12 completely ignorant when we went into the deposition,

13 and they did not reach final opinions.

14 Dr. Davis, there's no reason he could not have had

15 final, could not have been deposed this week.

16 Mr. Killinger after the three-day deposition took

17 the lead in trying to work out with Mr. Hyde a date

18 to depose Dr. Davis prior to the conclusion of the

19 permitted discovery period, only subsequently to learn

20 that data initially offered, Dr. Davis was claiming

21 nonavailability, and then we have been confronted

22 since then with a flat statement that he's not going

23 to be available after discovery is over.

24 I had taken from your original discovery order

25 in this case and every statement, every hearing we have

1 had, that absent special circumstances and agreement

2 by the parties discovery was to be concluded by this

3 Friday.

4 I spoke to Mr. Hyde this morning and made one

5 last stab at it, whether we could get Dr. Davis for

6 one day.

7 He said, "No, I'm not making him available," and

8 I advised him I was sending a notice of deposition

9 to Dr. Davis for this Friday in Tallahassee, where

10 they produced him the last time. I'm just as happy to

11 do it in Miami if they say to do that. We can work

12 that out if they ever produce him.

13 If not, you should exercise your authority to

14 total discovery in this case and make people stick to

15 it.

16 Discovery does cut off, and people had to have

17 their final opinions.

18 In the last three days I've gotten two more disks

19 of data from Dr. Davis, which I appreciate it, but some

20 of it has a cover letter with it saying he noticed

21 during his deposition that data was missing and what

22 not, didn't tell us during the deposition, and now

23 he's providing it later.

24 Dr. Davis will never finish his nominal work in

25 this case if we don't get him to deposition and just shut

1 this down.

2 I believe we're entitled to him during the set

3 period, should have had his opinion.

4 Nothing he has indicated as nonfinal is anything

5 he could not finalize based on the data available or

6 data made available in the interim.

7 So in reference to him being produced, I would

8 move to exclude any testimony which he has not already

9 rendered a final opinion on during the March 14 through

10 17 deposition.

11 MR. HYDE: Mr. Menton, this is Bill Hyde. I'm

12 not going to respond in kind to each and every one of the

13 claims being made.

14 It's important to note though so far as the

15 production of documents go that the United States

16 didn't file a notice until the last minute of this

17 case, because we called them up and asked them if

18 they were going to do so.

19 I think a good bit of the lateness of the production

20 so far as opposing counsel is concerned is due to a

21 copying problem that's not our fault. Additional

22 documents were provided the week before or the

23 Friday before. We tried to get this back to them as

24 quickly as possible, and to my mind a lot of the parties

25 in this case have been producing documents literally

1 at the last minute and sometimes at the deposition

2 of the witness being taken.

3 It has been a problem. We have all had it.

4 But I would note that the deposition was terminated

5 early by the U. S. and by the Department when they

6 had another full day to ask questions of Dr. Davis.

7 HEARING OFFICER: But if I'm understanding

8 they're indicating he was indicating he had not

9 finalized his opinions.

10 MR. HYDE: Only in a very small area, and I don't

11 even recall the specific things we are talking about here,

12 because they were so insignificant.

13 When you get these broad view questions, and he

14 says, "Well, I haven't, you know, finished my analysis

15 of that," but he does have his final opinions,

16 Your Honor, and he has had his final opinions, and

17 that additional document they sent down was just an

18 exercise to let them know that he had done some

19 additional work after the previous deposition.

20 But the bottom line here is that I and the

21 people associated with my firm have been working our

22 butts off trying to get this deposition process finished

23 prior to April 8th. I have been in depositions

24 almost everyday since I don't know, for some weeks

25 now, and right now I'm fortunately not in a deposition

1 at this very moment, but I can't make Dr. Davis

2 available on Friday. Dr. Davis has told me that he

3 has a very ill father in Mississippi, I think that's

4 where he's from, who he's planning on visiting this

5 weekend, and it's very important to him personally to

6 be there.

7 I have offered Mr. Davis or Dr. Davis to be

8 available next week, Monday, Tuesday, Wednesday, and

9 Friday, and all of those dates are available, and

10 I talked to Mr. Killinger about it.

11 Mr. Killinger indicated he was willing to take

12 him next Tuesday.

13 I don't think that that's an unreasonable course

14 of action to take under these circumstances. It's not

15 anyone's fault. It's not my fault. I do resent being

16 bludgeoned in this regard about his being taken this

17 week, because I can't personally do anything about it,

18 and at this point Dr. Davis isn't available anyway on

19 Friday.

20 HEARING OFFICER: Okay.

21 MR. HYDE: He's available on Tuesday. I don't

22 see why that's a big problem.

23 HEARING OFFICER: Okay. I don't either. Dr.

24 Davis is obviously an important witness in this case.

25 He's a key player that needs to, that the proponents

1 need to have an opportunity to understand what

2 he's going to testify to and need to understand what

3 his final opinions are in all areas on which he will

4 testify.

5 MR. HYDE: And he will be ready for deposition on

6 Tuesday if that's when they want to do it. Mr.

7 Killinger had indicated a desire to do it on that date.

8 HEARING OFFICER: Okay. I do not want to get into

9 establishing a precedent for extending the discovery

10 period, but I think there are circumstances here that

11 it's not unreasonable to extend it for purposes of

12 Dr. Davis and Dr. Davis alone.

13 I'm going to look at each situation on its own

14 merits, and I don't, I'm telling everybody right now

15 by allowing Dr. Davis to be taken after the discovery

16 cutoff, do not take that as an indication that this

17 is going to be done on a regular basis.

18 MR. HYDE: Mr. Menton, I wanted to just note that

19 we have voluntarily agreed to do some of the witnesses

20 of the District and the Department, I think three for

21 the Department and at least one for the District,

22 after the cutoff date. It's been done by mutual

23 agreement.

24 So we are not asking for something that we have

25 not been willing to extend to others.

1 MR. FITZGERALD: Mr. Hearing Officer, there's two

2 problems with the proposal. I understand the intent

3 behind your ruling, but I think if you're going to

4 carve out an exception starting with Dr. Davis that

5 certain constraints need to be put on the process, or

6 it will blossom on us.

7 What I am thinking in terms of is I'd like to see

8 an affidavit why he was not available last week,

9 because that's when he was originally supposed to be

10 taken, and I know that Mr. Killinger has said, because

11 he advised me as well, that if worse came to worse

12 Tuesday would be his preferred day next week.

13 He was not in my view saying, "I want to do it

14 next week," or, "I like this idea." He was simply

15 recognizing that you might decide to grant the

16 extra time.

17 MR. HYDE: I'd like to respond briefly. When I

18 said Tuesday was his preferred day, I had talked to

19 Mr. Killinger about Tuesday or Wednesday being

20 available, and because Lee had talked about that, so

21 that's what I was speaking about in terms of Tuesday.

22 So far as what happened last week, I can only

23 tell you at this point that Dr. Davis had a conflict,

24 he told me that he had a conflict, and I don't really

25 know why I have to continually justify myself to

1 Mr. Fitzgerald.

2 Everybody else seems to be held to a different

3 standard in this case than I do, but I think that I

4 have made a representation here, and I think it ought

5 to be accepted at face value.

6 I was available last Tuesday. I told Mr. Killinger

7 I was I, and I would contact Dr. Davis.

8 I did contact Dr. Davis the previous Friday,

9 and he said he wasn't available at that time. I

10 promptly called Mr. Killinger back again...

11 HEARING OFFICER: Okay, this isn't, there's no

12 need to get into this. I understand your position, and

13 I don't think there's any benefit in going back and forth

14 rearguing it. Everybody has too many other things to

15 do than to waste time on that.

16 I think as I emphasized before Dr. Davis is obviously

17 an important witness in this case. It is important

18 that he be made available promptly and his opinions

19 be finalized and that the deposition be scheduled and

20 completed as soon as possible, as early next week

21 as it can be done.

22 I don't know that we need to get into affidavits or

23 any of those sorts of things. I don't really know what

24 has transpired, but I have heard enough to convince me

25 the best way to proceed is to just schedule his

1 deposition, take it, complete it, and let's go

2 forward.

3 MR. FITZGERALD: Mr. Hearing Officer, I believe

4 there is one more motion still pending.

5 MS. PONZOLI: Mr. Menton, this is Suzan Ponzoli.

6 Did you when you received the Dr. Davis motion, did

7 you also receive the United States' motion regarding

8 Dr. Landing?

9 HEARING OFFICER: No, I did not.

10 MS. PONZOLI: Let me just tell you it's an

11 extension, you should have, and I don't know how it

12 didn't occur...

13 HEARING OFFICER: I got a response to the

14 consolidated motion to compel and the motion in

15 limine, but those are the only two documents I got.

16 MR. FITZGERALD: Mr. Menton, this is Bill Green,

17 Gary Sams is not on this call, and he has been handling

18 Mr. Landing, and we're not aware of anything on this

19 call today dealing with that, and I would urge you not

20 to take this up.

21 HEARING OFFICER: Well, I mean, while we have a lot

22 of people here, we talked about Dr. Landing last week,

23 and there were some issues remaining. I'm curious as

24 to what has been the resolution, if there is still a

25 problem or what.

1 I think if we need to hold off until we can get

2 Mr. Sams' version, then we'll do that, but while we have

3 everybody else, Ms. Ponzoli, why don't you tell me

4 what the problem is?

5 MS. PONZOLI: We did the first step, Mr. Menton.

6 you remember there were two steps to the document

7 production. We were going to produce the summary

8 data, and if we had no questions about the remaining

9 documents we would stop there.

10 HEARING OFFICER: Right.

11 MS. PONZOLI: We do have questions about the

12 remaining, second category of documents, and we would

13 like to have them examined.

14 Dr. Landing is refusing by letter with me to go

15 through that second step, and basically I'm in the very

16 awkward position of sort of dealing with an individual

17 pro se.

18 I would like you to either strike him as a

19 witness, because he will not obey the subpoenas that

20 have been placed on him under your name, or order a

21 time frame that he has got to have which ever attorney

22 is going to represent him, a university attorney,

23 a private attorney, or I guess if Dr. Landing just says,

24 "I absolutely will have no attorney, and I will

25 proceed pro se," then I will deal with Dr. Landing

1 pro se, but I really don't want to deal directly with

2 the Cooperative consultant.

3 It's a very awkward position for an attorney to

4 be in. I would like to deal with an attorney over

5 the documents.

6 HEARING OFFICER: Mr. Green, can you communicate

7 that to Mr. Sams and see if we can get some resolution?

8 As I recall from our conference call last week

9 Dr. Landing was going to confer with the university

10 attorneys to determine whether they would represent

11 him in connection with his position regarding the

12 privilege of his documents.

13 I don't know if you have had any contact from

14 the university attorney at all, Ms. Ponzoli.

15 MS. PONZOLI: No, I have not. I frankly have

16 some indication I believe either from Mr. Sams or

17 from Dr. Landing, I'm not sure the university is

18 going to come in the middle of this, but, you know,

19 no one has approached me other that Epry, and I

20 have reached an agreement which we represented on

21 the record to you with Epry, and the Cooperative says

22 it has no interest in these documents. They are not

23 representing Dr. Landing for these documents.

24 So Mr. Sams is in his representation, has no

25 interest.

1 HEARING OFFICER: Okay. If I can understand

2 what has transpired, you received the summary of documents

3 that you were seeking through Epry, and now you're

4 talking about Dr. Landing's personal records and the

5 graduate student records, field notes and stuff that

6 he took? Is that what you're talking about?

7 MS. PONZOLI: They really are the raw data, is what

8 they are. They're the raw data and the lab notebooks,

9 the internal data.

10 That second whole supporting category of

11 documents to the summary data is what is in the

12 second category.

13 HEARING OFFICER: And he has not produced those

14 at all at this point?

15 MS. PONZOLI: He will now allow us access to them,

16 no.

17 HEARING OFFICER: Okay.

18 MS. PONZOLI: And my real problem that I'm trying

19 to put to you is that I believe that Dr. Landing has

20 got to know that he's got to deal with this in "X"

21 amount of time, that he cannot let it drag on passively,

22 saying, "I won't." He has to understand within a

23 week an attorney has got to approach me, or I guess,

24 you know, he has a right to represent himself pro se,

25 but I'm always told there's an attorney coming, but the

1 attorney never quite comes and presents himself or

2 herself to resolve the problem.

3 HEARING OFFICER: Okay. Without Dr. Landing on the

4 phone and without Mr. Sams on the phone I don't think

5 we can really resolve that issue today, but,

6 Mr. Green, I wish you would communicate to Mr. Sams

7 that the issue did come up again, and we need to get

8 some resolution of it.

9 I would expect that Dr. Landing would not be

10 testifying until a little bit later in the case, so we

11 have a little bit of time to try to resolve these things,

12 but I would like to get some communication or statement

13 of position from Dr. Landing or his attorney by next

14 week.

15 Mr. Green, if you would communicate that. If

16 Mr. Sams is going to be representing him on this, or

17 if he's not he can communicate that to Dr. Landing,

18 that he needs to get an attorney or be prepared to

19 defend this matter by Wednesday of next week.

20 MR. GREEN: Your Honor, I'll pass that on. I've

21 been out of town as the other attorneys on the phone

22 know tending to other matters in this case, but I

23 just have one question, and maybe you can help me with

24 it.

25 Has it been determined that the information that

1 the federal government seeks is reasonably calculated

2 to lead to discoverable evidence? Has that bridge

3 already been passed?

4 MS. PONZOLI: I believe that bridge was passed last

5 time, Mr. Green.

6 MR. GREEN: I'm asking Mr. Menton that.

7 HEARING OFFICER: Nobody in particular argued

8 that. We left that, as I recall what happened during

9 the last telephone conference was that the federal

10 government had reached an agreement with Epry regarding

11 the production of the summary records, and there was

12 never an argument made regarding whether or not the

13 documents that were sought were reasonably calculated

14 to lead to admissible evidence. That simply wasn't

15 argued.

16 MR. GREEN: Okay. Thank you, Your Honor.

17 HEARING OFFICER: And with respect to Dr. Landing's

18 field notes, etcetera, he voiced some belief on his

19 part that they were protected by a university privilege

20 or by some sort of work product privilege, because they

21 were being conducted by graduate students within the

22 university process or whatever, but nobody articulated

23 in argument that they weren't discoverable within

24 the lines you have suggested. So I simply have not had

25 to deal with that particular question yet.

1 MR. GREEN: I raised that purely out of curiosity,

2 Your Honor, because I frankly don't know the details,

3 but I will pass that on to Mr. Sams, what you directed

4 he be made aware of.

5 HEARING OFFICER: Okay, and Mr. Sams as I recall

6 did not take a position on that during our conference

7 call last week, or that's my recollection anyway.

8 MR. GREEN: Thank you.

9 MR. BURGESS: Mr. Menton, this is Rick Burgess.

10 If we're done with that I do have one other matter

11 to bring up ore tenus.

12 HEARING OFFICER: Okay.

13 MR. BURGESS: Mr. Hyde has mentioned earlier on

14 the subject matter of the Dr. Davis deposition that

15 there indeed were some alternate arrangements that

16 have been made to allow depositions to take place next

17 week, and because of your comments I just wanted to

18 bring up one of those instances to make sure we

19 don't have a problem.

20 We had originally subpoenaed Dr. Ramesh Reddy

21 from the University of Florida to be present for

22 deposition in Gainesville last month, and Ruth Clements

23 from the District attended, and I attended, having

24 issued the subpoena, but Dr. Reddy did not show up.

25 We subsequently resubpoenaed him last Monday, a week

1 ago yesterday, to attend a deposition beginning in

2 Gainesville tomorrow, and he called me yesterday and

3 said because of class commitments he would be unable to

4 be there this week, however he would make himself

5 available next Tuesday and Wednesday in Gainesville.

6 I called Ruth Clements, and she did not have a

7 problem with that, and so we're planning on taking

8 that deposition next Tuesday, and if it needs to go into

9 Wednesday it will, to accommodate Dr. Reddy, who while

10 he is not a listed witness was formerly listed as a

11 witness for the District and has done some extensive

12 sampling of the Everglades, upon which we wish to

13 take his deposition.

14 HEARING OFFICER: Okay, so you are simply putting

15 me on notice there are some depositions that are being

16 conducted without objection from any party beyond the

17 discovery cutoff?

18 MR. BURGESS: At least with respect, I'm giving

19 you notice the only one I'm aware of is Dr. Reddy.

20 It's the one I'm involved in, so I'm bringing it up

21 in light of your earlier comments.

22 HEARING OFFICER: Okay. Well, we again have

23 a discovery cutoff. If there are some, if you have

24 some unique circumstances and everybody is in agreement,

25 then I don't have a problem with making some extensions

1 to that.

2 I'm going to be very reluctant to grant

3 extensions over the objection of any of the parties.

4 That's more what my comments are geared towards.

5 MR. BURGESS: Okay. Well, I guess the agreement

6 I'm representing I had was with counsel for the

7 District. Counsel for the United States did not

8 show up the first time, and I assume they would not

9 be there tomorrow, although they may. I just wanted

10 to inform all parties that we had that agreement,

11 and that the deposition was going to go forward next

12 Tuesday.

13 HEARING OFFICER: Okay. All right. Are there

14 any other pending matters before us today?

15 MR. HYDE: Mr. Menton, this is Bill Hyde. Can I

16 just ask Mr. Fitzgerald if we can safely assume he

17 wanted to depose Dr. Davis next Tuesday? Did we settle

18 on Tuesday as being the day?

19 MR. FITZGERALD: I haven't settled on Tuesday as

20 the day. I need to talk to Mr. Killinger first on

21 that.

22 DEP did take the lead. We will certainly

23 cross notice, but I would prefer to hold on. I don't

24 think he needs to become involved in this.

25 MR. HYDE: Okay. Well, I just, you know, Mr.

1 Killinger mentioned next Tuesday, so Monday,

2 Tuesday, Wednesday, or Friday are good for me, so

3 everyone can know. Thank you.

4 HEARING OFFICER: I'm sure you will reach an

5 agreement as to what's an acceptable date.

6 We have a prehearing conference scheduled for

7 Monday at 10, is that correct?

8 MR. HYDE: Yes.

9 HEARING OFFICER: All right, and that will be

10 here in Tallahassee. I don't at this point have any

11 pending matters other than what we discussed the last

12 time regarding trying to finalize some of the

13 stipulations, etcetera.

14 Okay. That will do it for today. I'll see

15 everybody on Monday.

16 MR. HYDE: Thank you.

17 (WHEREUPON, THE HEARING WAS CONCLUDED AT

18 3:20 P.M.)

19 * * * * *

1 CERTIFICATE OF REPORTER _______________________

2 STATE OF FLORIDA )

3 COUNTY OF LEON )

4 I, SUE HABERSHAW JOHNSON, Certified Court Reporter,

5 Registered Professional Reporter, and Notary Public in and for

6 the State of Florida at Large:

7 DO HEREBY CERTIFY that the foregoing hearing was

8 taken before me at the time and place therein designated; that

9 my shorthand notes were thereafter reduced to typewriting

10 under my supervision; and the foregoing pages, numbered page 1

11 through page 61, are a true and correct record of the

12 proceedings.

13 I FURTHER CERTIFY that I am not a relative,

14 employee, attorney, or counsel of any of the parties, nor

15 relative or employee of such attorney or counsel.

16 CERTIFIED THIS 5TH DAY OF APRIL, A.D. 1994,

17 IN THE CITY OF TALLAHASSEE, COUNTY OF LEON, STATE OF FLORIDA.

STATE OF FLORIDA )

19 SS

STATE OF LEON )

21 The aforesaid instrument was acknowledged

22 before me this 5th day of April, 1994, by SUE HABERSHAW

23 JOHNSON, who is personally known to me.

CHRISTINE WHEELER

25 Notary #AA711091