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which is about water quality violations, what they're going
to be most interested in is data about water quality, what
has it been and what is it doing to the Everglades
ecosystem; and we've already given them all of the
information we have on that.
However, at that time, at the end of October, we
still had not received any of the copies of the documents
from the Park and we still had not received any from the
Refuge. They gave us a computer list that we couldn't
figure out, and we began to ask some questions about that,
and we didn't get answers to those questions.
We then had our motion to -- we argued motions in
front of the judge. Judge Hoeveler said -- we raised this
problem with Colonel Herndon on November 1st. He said, "I
think you should be able to depose Colonel Herndon. As far
as I'm concerned, you can do it. We're going to cut out
red tape. We're going to have that deposition." We still
haven't had that deposition, and we still haven't been able
to schedule that.
One of the arguments that keeps being thrown at
us in that we asked for documents in the subpoena duces
tecum that was to a large extent overlapping with our
document requests to the Corps and the Park and the Refuge,
and that's true. Actually the subpoenas duces tecum were
very narrow. They asked for much fewer documents than were
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asked for in our broad requests to those agencies. We had
some specific things we wanted to set at, like we asked
each person -- if they were an expert, we wanted a copy of
their curriculum vitae or their resume, their publication,
list, and a copy of publications. We wanted to figure out
what they were experts at and whether they could qualify as
experts. We may want to challenge whether they should be
able to qualify as experts, which are reasonable discovery
things to do at depositions.
The only reason we asked for documents like that
in the subpoena duces tecums that we filed is because we
still had gotten no copies of any of the documents that
we'd seen at the Park or at the Refuge and we had not set
up a document production session with the Corps, mostly
because the Corps hadn't set one up. We asked for Corps
documents in June, which is not something we thought of
after we started trying to get these depositions. We asked
for the documents in the document production first, and
then we filed the notices for depositions and served the
subpoenas on the Government.
So, we don't care whether they bring the
documents to the deposition: We don't care whether they
produce them in Jacksonville. We just want to see them.
We're not asking to see the same documents twice. We want
to see them once. And I don't know why we need to put
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something in the subpoena duces tecum that says, "You don't
need to bring documents you've already brought."
If they show up at a deposition and they don't
have documents we've asked for and we say, "Why?" and they
say, "Because you already saw those before at a document
production session," we're not going to call up the Judge
We're not going to file a motion to compel duplication and
reproduction of documents that have already been produced.
And we only did that because we hadn't seen any documents
yet.
As Mr. Harrison says, maybe we'll think of a few
more documents between the time of the production session
end the deposition, but even if we do that, that's not
going to cause reproduction of the same documents more than
once.
We also had not seen the privileged list, so that
means we didn't even know what we saw at the Park and the
Refuge. We had no way of telling what they kept back. And
they say in one of their briefs that they've been waiting
since June of last year for a privileged list from us. We
didn't withhold anything as privileged in June. We gave
them everything we had in the offices that we went through
in response to their document request.
Now, we were going to give them a privileged list
as a result of the October session, but by then it had
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already been clear that we hadn't gotten a privileged list
from them from the sessions that they had held in
September. So, we again couldn't see any reason to give
them a privileged list when they hadn't given us a
privileged list.
THE COURT: Have privileged lists been exchanged
by -- at all by this time yet?
MR. JACKSON: No, not yet. In fact what I'd
like to get to next is that what we really need to do, of
course, is figure out how to get this discovery process
going again; and I can -- I think it's very easy actually.
The court should order them to produce the
witnesses for depositions. We'll agree on times. I don't
think the court needs to set the schedule for that. We're
willing to do it whenever it's mutually convenient for
everyone concerned.
The court needs to order that the privileged
lists for both sides be produced. We'll produce them at
the same time they produce them.
The court needs to tell the Government to produce
the Corps documents in Jacksonville. We'll work out a time
when we can go see those. We'll be happy, to put the
Herndon deposition off until after we've seen those
documents. We don't want to depose him without looking at
those documents first.
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They should be required to finish the Everglades
National Park production, for example, to either produce
all of the computerized date or at least tell us what
they've got on computer and what kind of format it's in.
We had a meeting with them in October of last
year. We invited them to bring their attorneys and their
experts -- the United States that is -- but, we also
invited the agricultural interests to the same meeting. We
brought our experts. They all -- the -- our experts sat
around and talked about what kind of computer information
we have. They talked about bits and bytes. They used all
of the computer jargon. None of the lawyers had any idea
of what they were talking about, but at least the computer
experts in the room were all talking to each other about
the District's information.
The Justice Department expert said, "You've got a
lot of stuff. I think we need to narrow our request." We
said. "Fine. Tell us what you want. You'll get it." and
we've been giving it to them on that basis ever since.
We still don't know what they have on computer.
They still haven't -- they gave us a list that's been
useless. We've asked a number of questions about the list
for the Park. They've given us no list at all for the
Refuge. We have no idea of what the Refuge has on
computer.
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THE COURT: Which list are you now talking about?
MR. JACKSON: They produced a list of computer
information. It had about a hundred and fifty entries on
it. It said at the top, "Nine-Track Tapes."
Now, the District has lot of computer
information on nine-track tapes. We've got a lot of
computer information in just about every other conceivable
type of computer mode you can put it into. Again, I can't
describe all of this. It's way beyond my understanding.
But, you've got all sorts of software and different types
of methods of recording information on computer, and you
can mix them around and make it easier to get information
out of one type by transferring it to another and all of
that kind of stuff.
All they've given us is a list of what they claim
are their nine-track tapes. A lot of the categories were
empty. For example, there would be a name, but there would
be no description of what was on the computer tape. So, we
had no idea of what this tape was. We didn't know whether
we wanted to copy it and look at it or not. So, we sent a
letter, and we asked a lot of questions. We said, you
know, "Fill in the blanks. Tell us what other computer
information you have. Is it all on nine-tracks tapes? Is
this all of it, or is there more? And where's the list
from the Refuge?"
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The same thing with maps. We told them initially
we didn't went to produce maps that we had not completed --
vegetation maps. Now, we've been trying to make maps to
establish what the vegetation is like in these areas.
And by the way, that area I just showed you, with
the EAA, the water conservation areas, and the Park, is
forty-three hundred square miles; and the information that
we're fighting over today comes from all of that
forty-three hundred square miles.
They want information that we have about what
practices are going on in the EAA and how that affects
water pollution, and that's legitimate stuff for them to
ask for .They want all of the studies we've made in those
wetlands with regard to water pollution and vegetation.
We're talking about fifteen or twenty years worth of
studies, because we've been doing this for a long time.
We've got thirteen hundred employees in our district.
They even want stuff we know about the Park, and
we do have some information about the Park that I guess
they don't have. And again, it's not a question of whether
they can have it or not; it's just trying to come up with a
manageable way to produce that information and to make it a
two-way street and also to put some reasonable limits on
where we look for information and how far afield we have to
go.
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We've tried to put -- impose a cutoff in this
case, so that geographically the discovery requests are
limited to south of Lake Okeechobee. That's what the
lawsuit is about. Our district runs all of the way up to
Orlando. We have sixteen counties in this district.
The United States has said, no, they want
everything we have on wetlands anywhere in that area; and
we've said, "That's ridiculous. We've got more information
about nutrient impacts on Everglades wetlands then anybody
could ever absorb. That's plenty. Why do you need to go
to other wetlands and figure out what nutrient impacts are
there?"
They responded in one of their briefs by saying
that we've done studies of nutrient impacts in other
wetlands. Fine. All they have to do is identify the
studies, and we'll be happy to give them the information.
That's a far cry, though, from saying, "We want everything
you've got on wetlands and nutrients and vegetation," which
is the way they described things in their request, "north
of the Lake."
So, again, I just use that as an example of where
we've tried to put some limits on what we give them --
define those limits, so that at some point we can say,
"We're finished. We -- with our objections. where we said
we won't give you anything north of the Lake, but within
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the scope of those objections, we've given you everything
we've got; or at least we gave you everything we could
find."
The same was true with regard to the argument
about divisions and departments and where we looked. We
looked where we thought we were going to find the
information. There were times when the Government
mislabeled a department or a division on its request.
I'm from Washington. I'm an attorney in a
private firm. I know nothing about this district before I
start doing this lawsuit. The first thins I get is this
request for production, and I have to figure this district
out and figure out where your documents are. So, I was
probably more in the dark then their experts were as to how
this district works and what kind of information they've
got.
We simply went around and asked questions.
Sometimes we discovered that the United States had
designated the wrong department or division; and when that
happened, we went to the right department or division; and when that
got the documents. We would be walking out the door of
someone's office and they'd say, "By the way, you should
talk to Joe Blow down the hall. He's got filing cabinets
on this stuff." Reluctant as we were, we would go down the
hall and talk to Joe Blow, and, yes, he had filing
99
cabinets. That's how we generated seventy-five thousand
pages of documents in thirty days. The people have got
more documents than they know what to do with.
So, even though we have objected to looking in
every file cabinet in the District to find every document
that has to do with this memorandum of agreement, we have
produced numerous documents with respect to the memorandum
of agreement. That's the document that was entered by the
Corps and the Park Service and the District, and basically
it requires us to measure and the Corps to measure water
quality levels at certain places in the Everglades, and it
sets certain standards for those water quality levels, and
then there's supposed to be a report about whether or not
the water quality is meeting those standards or not. They
claim we agreed that we would meet those standards; and if
we don't, we're in violation and can be sued for breach.
We disagree with that.
But, aside from that, basically the MOA is about
water quality. This morning, when Mr. Harrison said what
it -- they want everything on the MOA that could be
anywhere in the District. This morning Mr. Harrison said,
"What we're talking about is we want to know how those
water quality standards got set." They were actually set
in conjunction with the Park, so I don't know why that's a
problem for them. But, assuming it is a legitimate area of
100
discovery, they want to know whether or not those standards
have been met in the past, and they went to know
information relating to those water quality standards that
are in the MOA.
As I said, we've given them the water quality
data that we have. When we went through the Water Quality
Division -- and we used to have one called that -- and we
found documents about the MOA, we knew that was stuff to
turn over to the Government. So, when we say we're not
going to look everywhere in the District for MOA stuff, it
doesn't mean we're not going to produce the MOA stuff. In
fact, I bet we've produced what they're really interested
in, because when we ran across it in the places where it
was most likely to be as far as relevant information was
concerned, we turned it over .
We've withheld very, very few documents as
privileged from the Government. In fact, we also went into
our Regulatory Office. We have a huge office that deals
with regulations. They wanted -- and this morning they
talked about all of these memos and policy decisions in the
District. Well, as far as we can tell, there aren't --
there never were any policy, decisions not to regulate
EAA. To the extent they're, not regulated, it's just worked
out that way.
But, we went through the files of the people who
101
run the Regulatory Division, and they had lots of memos.
They had lots of letters. They had notes of meetings. We
went through those. We turned those over to the Government
at the October session. We pulled a few documents out of
there as privileged, but we turned over all of that stuff.
And that's true for a lot of these requests.
There's the request they have on the EAA. I think maybe
it's 58, 56. It's got several subcategories. Everything
they're asking for, we've already turned over in that. We
just refuse to go -- beat through the entire District, or
we respectfully request not being required to beat through
every filing cabinet in the District to find every document
that may relate to the EAA. It's a huge area, it was there
long before the District was, and pumping water out of the
EAA is a major thing that the project does. Therefore,
there's likely to be some documents here and there all over
the place with regard to that.
THE COURT: Well, how would you limit it? If
you're -- are you -- I'm not sure of the difference between
divisions and departments, but --
MR. JACKSON: Well, we'll be happy to designate
to the Government -- in fact, we already have. That's what
started the dispute -- where we looked for the documents.
We said. "We object to looking outside of these divisions
and departments for these documents." And they said,
102
"You've got to look everywhere." So, what I would say is
that, if they can point out another division or department
that they think is likely to have relevant documents, then
we can consider whether to look there.
THE COURT: How would they know that? How would
they have any idea of what division or district -- or
department or division there might be a document that
they're looking for?
MR. JACKSON: We've already provided them with
our organization chart, and the divisions have names. I
mean you can tell whether or not, it seems to me, a
division or -- the same way we do -- like I said, I was a
stranger to this -- the way we've decided whether a
District division or department was likely to have
documents.
THE COURT: Of course, lawyers and particularly
lawyers that have a burden to prove a case -- and rightly
to, I believe -- in an abundance of caution, always ask for
everything; and that's, I believe, their position here,
that they can't really tell. While they may agree that to
ask District-wide may be a cumbersome task, their position
here in the papers is that that is a task that, while
cumbersome, is still an obligation on the part of the
District, because, No. 1 -- or for one reason because of
their inability to be able to say, "Well, look in that
103
department, that division." And that's the problem that
they're presenting to the court.
MR. JACKSON: Well, I'd like to dispel two
notions that were raised this morning. One is that we have
a computerized document system.
THE COURT: It sounded pretty good.
MR. JACKSON: It did sound good. I wish such a
thing did exist. It'd be great. We haven't got anything
like that at all. We sit around and go through ancient
filing cabinets, some of which have documents going back to
1940.
THE COURT: I didn't think any Government agency
had something like that. I know we don't have that here in
the court. But, anyway --
MR. JACKSON: Well, it doesn't exist, so what
we're talking about to find -- if we produce ninety-nine
percent of the relevant documents by looking in the places
where they're likely to be -- and I suppose if they went to
have interrogatories and depositions over how we looked for
documents, then they're entitled to request that kind of
discovery. Given some of the things that have happened
with respect to the Park, we may ask for that kind of
discovery.
THE COURT: Well, how big of a task would it be
to look District-wide for these documents that are
104
requested here? Is that monumental?
MR. JACKSON: Yes, and that reminds me. I'd like
to dispel another notion that was raised this morning,
which is that we have not sent out a memo basically to
everyone -- not everyone, of course, but to heads of the
departments.
It's -- there's an organization chart. You start
at the top and you work your way down, and we've sent out
memos to various department and division heads and said--
we didn't exactly send around a copy of the Government's
document request, because frankly it's kind of vague and
loose. It's not very well-worded in a lot of places; and
sometimes we think we know what they want, and we can word
it a little better for our people what it is we're looking
for, including making it as broad an possible, because we
don't want to do this again.
Well, we did -- we have sent memos like that
around, and I've sat in numerous meetings with people
trying to figure out where documents are. We've spent
hundreds -- and we've laid all of this out in our first
brief that we filed in support of our motion for a
protective order, and that was in regard to this dispute
about whether or not we were producing -- mixing the
documents up and giving them empty file folders and all of
that sort of thing. We spent five hundred hours,
105
man-hours, paralegal and attorney hours, trying to find
these documents, figuring out where they were, getting them
labelled so that we could produce them for the Government,
copying them, and getting them back in the filing cabinets.
Now, that is only with regard to looking places
where we think the documents are likely to be. To get that
last five percent to cover the entire District, you're
going to have to double, triple, quadruple, that kind of
effort, because there are vast areas of the District where
we're not looking. They have all of these -- you know,
like any agency, they have huge administrative staffs.
They've got a public relations staff. They've got
engineers that do nothing but figure out how to open and
shut the gates. They've got people that maintain the
buildings and the locks and the dams and all of that sort
of stuff. So, we didn't ask any of those people for this
stuff.
THE COURT: Well, let me ask you. If -- having
done all of this work, do you think it's possible that some
of the documents that are being requested which you would
say are arguably relevant are in locations other than
places that you've already looked?
MR. JACKSON: Yes, it's going to be possible. I
will never be able to certify that those documents don't
exist somewhere else.
106
THE COURT: And the plaintiffs -- if -- as
much -- you may view it as -- I don't know if you use the
term "fishing expedition," but I read it all of the time.
As much as you may view this as a cumbersome task, it's
conceivable that the smoking gun, if there is such a thing,
is someplace other than south of Okeechobee?
MR. JACKSON: No. I don't think there's going to
be a smoking gun north of Lake Okeechobee.
THE COURT: But, some document -- maybe not a
smoking gun then, but some document which would fit within
this document request
MR. JACKSON: Oh, undoubtedly there will be north
of the Lake. That -- we didn't cut that off because we
thought there were not going to be documents. We cut it
off because we estimated that it would double the number of
documents we would have to produce.
And we cited cases in our briefs that say, even
though the discovery rules are written very broadly and say
that a document doesn't even have to be relevant -- it just
has to be likely to lead to relevant materials -- and we
agree, when they ask for wetlands impacts north of the
Lake, it's going to be within Rule 26. I mean it's hard to
imagine anything that isn't within Rule 26. But, we cited
cases where the court said, "Nonetheless, when you start
reaching an area of diminishing returns, where the effort
107
to the producing party is greater than the likely benefit
to the requesting party, the court has the discretion to
cut that off."
Now. I think it'd be a different case if we
didn't have thousands of acres of wetlands, that are the
same wetlands at issue, that we've been studying, along
with the Park and lots of other people, for fifteen or
twenty years to decide exactly what these nutrients are
doing to these wetlands. And is I said, just the first
round of production produced twenty-five thousand pages of
paper, a lot of it about that issue. Now, if that didn't
exist, it'd be a much different question if we had a report
about a wetland north of thy Lake on the same issue. I'd
agree in that situation. If there's nothing else, then
that's not unreasonable to require a report on that.
THE COURT: So that those documents that have
already been produced -- if the plaintiffs could prove
their case, it could be proven with those documents, even
though there are additional documents potentially.
MR. JACKSON: Absolutely. If we go north of the
Lake, we're going to be talking about different wetland
systems; and there are going to be a lot of arguments made
as to both the relevancy of those documents and their
weight, especially compared to what we already know is
going on south of the Lake; and we can argue forever about
108
whether we know what's going on south of the Lake.
I think the more -- it's like lawyers. The more
scientists we get involved in this and the more we look at
it, we're just going to have more information and less
agreement about what it means, but there's plenty of it.
There's enough to have a trial that could last two months
solely on the issue of whether or not these nutrients' are
creating a discernable impact in the Everglades that we can
all agree on and then decide what the baseline is as far as
resolving the problem. It would be very easy to have a
very lengthy trial based on information we've already
produced to them and they've produced to us and that we've
given to the Sugarcane League on just that issue, and
that's hardly the only issue in this case.
So, with that kind of effort on our part and that
kind of information already being produced, we think that
it's simply burdensome and harassment to have to go to
other areas like north of the Lake.
And it's a little bit different issue than not
looking in every filing cabinet for every document that has
to do with the MOA. That's somewhat of a different issue,
because we suspect that there are not going to be very many
documents in other places; and if they are found, they're
not likely to be any different from the documents that have
already been produced.
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In fact, every time the Government has told us
why they want these documents and why they went us to look
all over the District for them, they've been a little more
specific about what they're looking for, as I mentioned
with the MOA. They said, for example, they wanted to know
where the water quality standards in the MOA came from,
what methodology led to that -- what science, what
research, etcetera, led us to put those standards in the
MOA, along with the Park Service.
Well, if that information exists in the District,
it's going to be in Environmental Sciences, where they
study the biology; it's going to be in the Water Quality--
what used to be the Water Quality Division, where they
study water quality and measure it; and we've already
produced everything those people have, except for the SWIM
documents, that's relevant to nutrients and impacts on
wetlands. In fact, we've produced everything they had on
water quality in the wetlands, whether it was limited to
nutrients or not. We didn't limit it to nutrients.
And we ran across -- we would frequently run
across things having to do with the MOA. An internal memo
that says, you know, "The Park Service wants us to sit
down ..." -- we had an MOA in '79, and it was revised in
'84, and that's what we're being sued over -- the '84
one -- "The Park Service wants us to sit down and decide
110
what new standards to put in the '84 memo. What do we do?'
"We had a meeting today with the Park Service to decide
what the standards would be on the '84 MOA. "We had a
meeting today with the Park Service," after the MOA was
entered, "to talk about whether or not the standards are
being met."
We gave them all of that stuff. Every time we
ran across that stuff -- and it was most likely to be in
the departments that deal with those issues -- we gave it
to them. So, I can't swear that we gave them everything,
but I would bet we gave them ninety-nine percent of what
they're really looking for that's relevant to the case; and
it just doesn't justify doubling and tripling that effort
to find that last one percent; and again, we've cited cases
that say courts have discretion not to require that,
especially when there's, as there is in this case, a
plethora of information that's clearly relevant to this
case.
I would -- if the parties in this case produced
at trial half of one percent of the documents that have
been produced in document productions so far, this trial
will go on for many weeks; and I have a hard time believing
that Judge Hoeveler is going to put up with that. So, I
think that there's got to be some reasonableness involved
in selecting where we look for documents.
111
And I'm sure the Government is doing the same
thing. I can't believe they're going through every single
filing cabinet they've got in these agencies to find
documents. They're doing the same thing we are. They're
talking to people, they're looking at the names of file
folders, and they're trying to make quick judgments about
where documents are; and that's -- we're doing exactly the
same thing. We're trying to handle it as rationally as
possible.
I don't think that issue is really all that
important at this point. I think the bigger problem is
that there is a sense that somehow the discovery problems
that have arisen in this case, some of which are the result
of the fact that there's just a lot of information there
and it's hard for all of the lawyers to deal with it,
especially lawyers who aren't themselves experts on these
issues -- there's an awful lot of people involved that have
been working on these issues for a long time, and we're all
struggling to deal with that. We're struggling to deal
with what the United States gives us and we're struggling
to deal with giving it to them from our side as well, too.
A discovery schedule is not going to solve those
problems. The only thing that's going to solve those
problems is that when valid discovery requests are made
they're fulfilled and we don't get into fights about things
112
like whether or not the discovery production session is
held in a hotel room or in a conference room in the
District, because that really doesn't influence whether or
not the Government is getting the information they're
asking for; and we -- and to spend three hours on the first
day of production, with the United States insisting that we
have a telephone conference call with the magistrate at
that time, instead of sitting down and looking at the
documents we produced, to me seems like a waste of time;
and no discovery schedule is going to prevent that from
happening.
I'm not -- I don't want to say the United States
is solely at fault for the breakdown of discovery in this
case, but the problem has been that, whenever we're ready
to produce or whenever we're ready to basically start
trading information that we want it to work both ways, the
Government raises a problem. For example, we asked for
depositions, and they said, "You can't depose these people,
because you haven't filed an answer in this case." There's
no case law -- there's no authority for that proposition;
and in fact, once we briefed it, they abandoned that
argument. That's one reason why we're reluctant to agree
to telephone conference calls. We think the briefs are
helpful.
On this 26(b)(4)(a) thing, I -- no discovery --
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I'm no expert at the Federal Rules of Civil Procedure
either. I didn't know -- I couldn't distinguish all of
these subsets, but after we briefed the case, they started
citing cases that said that basically you can protect these
experts; and they cited all of these cases; and they turned
out to be Rule 26(b)(4)(b) cases, not (b)(4)(a) cases; and
there's a big difference, because (b)(4)(b) is to protect
experts who have been hired solely for a consultative
capacity and who are not going to be called for trial.
Nobody in their right mind thinks that the
Government is not going to call Dan Shite to trial in this
case or that we wouldn't be entitled to call him to trial
as a hostile witness. He is their main case agent. He's
done nothing but work on this litigation since August of
1988. He's obviously a relevant issue -- witness. He is
not a 24(b) witness. He's a 24(a) witness.
So, we need to stick to those cases; and with
regard to those cases, we cited the Manuel of Complex
Litigation, which has been cited at least three times this
morning, which says posing interrogatories to depositions,
first, does not make sense in complex litigation. If you
want to do reports by experts, fine, but you've got to
depose experts.
We cited Wright & Miller. It says nobody ever
bothers to depose expert witnesses with interrogatories
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first. Why? Because they're useless. Lawyers realize
they're useless. Most of the time nobody even raises that
objection, and numerous courts grant orders allowing expert
witnesses to be deposed. In fact, almost every pretrial
order says, if your witnesses haven't been deposed and you
haven't disclosed them, they're not going to testify at
trial, because the judge isn't going to sit through a cross
examination by an attorney who's never seen an expert
before and had no idea before the trial what the guy was
going to say or what the basis was for it.
So, our position on like these depositions is
that the Government insists on raising these issues, like
whether or not we file interrogatories first, just as a way
to stall; and they've provided objective evidence that
that's going on, because they'll shift from one argument to
the other.
With respect to scheduling and how we should
treat expert witnesses, this morning I kept hearing over
and over again, "All you have to do is ask us in an
interrogatory. We'll tell you who our expert witnesses
are. We'll even give you a summary of what they're going
to say." Why do we need to ask an interrogatory to get
that, if they're willing to give us that information?
Nothing stops them from sending that to us anyway, if they
want to, if they think it's important. We're willing to
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depose these people without that.
As I said, Mr. Shite has worked on this issue for
a long time. You've heard that he's published numerous
articles. We have a fairly decent idea of what he knows
and doesn't know about this issue. We've got plenty to
talk to him about at a deposition. We had no trouble
figuring out that he was somebody we needed to depose. And
as I said, with this SWIM Plan, they're not going to have
any trouble with it either; and in fact, they mentioned
several people this morning that they thought would be
likely candidates, because they'd be witnesses in this
case. Every -- these -- everybody knows who everybody else
is in this case with regard to the staffs and the Park
Service and the Refuge and the District. Before the
lawsuit started they were all working on this problem
together as scientists.
I have no problem with setting up a pretrial
schedule or a discovery schedule in this case that says
that at some point both sides will disclose who their
witnesses are and what those witnesses are going to say, a
summary of testimony. I do object to trying to distinguish
between a fact witness end an expert witness in this case;
and again. I 'd like to use Mr. Shite as an example. I
don't mean to beat up on him, but it's just he's -- we know
the most about him, and he provides e convenient example
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for this.
But, in 1983 and 1984, he was involved in a
dosing study. Basically, as I understand it, the Park
Service decided to take some Everglades wetlands in the
Park and they started feeding nutrients through that area.
They put polluted water in this area. They had a control
area where they didn't put any polluted water in, then they
had an area that they put polluted water in, and they
started studying what happened. They charted the
difference. They said. "All of these bad things happened
in the polluted area, and they didn't happen in the
non-polluted area." That was like seven years ago.
Now, Mr. Shite conducted -- apparently was very
much involved in the conduct of that study. Obviously, for
our experts to analyze the results of that study, they're
going to want to know a lot of things about the study --
"How often did you polluted water in that area? How
polluted was the water? How did you know chances were
occurring? Did you do a baseline study first? What
methodology did you use to determine the difference between
the control area, whore no polluted water was, and the
polluted area?" Those are all fact questions.
We're going to ask Mr. Shite those questions
because he was there when they occurred. He was an
observer first-hand witness of those questions. He
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does not need to render an expert opinion to tell us that
information; and it's information were legitimately
entitled to, because again, we can guarantee you that in
this case the first thing they're going to present to Judge
Hoeveler in their main case in this dosing study. They're
going to say, "We know nutrients cause problems, because we
purposefully dosed the Everglades and it caused problems."
And that's a very important fact in this case.
THE COURT: Well, let me ask you how logistically
you would want to work that out then from a practical
standpoint. If you want to go ahead with a witness right
now -- Mr. Shites, is it? Shite.
MR. JACKSON: Shite.
THE COURT: Shite. Mr. Shite is a fact witness.
That's one of the persons that you've, I believe,
previously subpoenaed for deposition. He has not now been
identified or at least not formally as an expert for the
United States in the case. If he later is identified as an
expert, then you would seek to take his expert deposition?
MR. JACKSON: Why not allow the deposition
both purposes to occur at one time?
THE COURT: Well, would you prepare -- perhaps he
is not prepared as an expert witness at this time. Perhaps
he hasn't completed: his review of the matter and would have
to rely on further discovery in the case, other depositions
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of other persons and so forts, to formulate his expert
opinions. If that is his reasons to your deposition if it
were to proceed in the next thirty days or sixty days or
ninety days, if he were to say, "I presently don't have
expert opinions. I may later," then what would happen?
MR. JACKSON: We would never be able to resolve
that problem by designating expert witnesses for separate
depositions later or.
THE COURT: So, your problem right now is --
MR. JACKSON: They'll always be able to say that.
THE COURT: Right. But, you're saying you have
no problem identifying witnesses, at least by a certain
point. You don't -- you --
MR JACKSON: Right.
THE COURT: Let me see if I can get this
straight.
MR. JACKSON: Yes.
THE COURT: You don't have a problem -- or you
don't see a need for interrogatories --
MR. JACKSON: Yes.
THE COURT: -- prior to depositions. You don't
have a problem with identifying at some point who your
witnesses are -- and of course, that's standard
procedure -- and then at that time also identifying, I take
it, who your experts are versus your fact witnesses.
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What --
MR. JACKSON: That's what we proposed in our
proposed schedule -- is that everybody identifies their
witnesses. Depositions are cut off at a certain point
before trial. If you haven't identified a witness and he
has not been deposed, that is the opportunity was not
provided to depose him, he doesn't -- he's not used at
trial.
Now, as in any case, we're certainly open -- and
I imagine Judge Hoeveler is going to be, too -- to either
moving those schedules around, moving the trial date back
and moving the cutoff up. If the cutoff is passed and
people identify witnesses legitimately that they still want
to use at trial -- the Government calls us up, "We've found
this guy. He's a great witness. We want to use him.
You're going to have to depose him before trial." We say,
"Great. We'll come see him and depose him." Then he's
used at trial, so that we maintain flexibility up until the
time of trial. That's, in my experience, what normally
happens.
But, if Mr. Shite now says, ''I'm not ready to
present expert opinions on matters that ire relevant to
this case," there's nothing to prevent him from saying that
once he's been designated as a witness either, whether
expert or not.
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THE COURT: Now, at some point he would be either
required to or would be -- would have an expert opinion, so
that he would not -- it wouldn't be a subterfuge for sure
from he or anyone else, and I'm not suggesting that he
would do that, but --
MR. JACKSON: I don't see any practical
impediment to going ahead and requiring both sides to
designate fact and expert witnesses. One reason I think
that's true is because, like I said -- and Mr. Shite again
is a good example -- he's been studying this problem for a
long time. The people that we are likely to produce
ourselves or that the Government is going to want to
produce, even if we don't, are in the same boat. You're
going to find stuff cited in here that goes back to the
late Seventies and the early Eighties. There's nothing new
about this stuff. So a lot of people formed opinions a
long time ago in this case -- long before this case was
filed.
THE COURT: But, that's what Mr. Harrison is
asking to do -- at least one of the things he's asking to
do in expert or in interrogatories, and that is to
identify fact and expert witnesses, and you're saying you
don't have a problem with that.
MR. JACKSON: No, I'm saying that there's no
reason why both sides, without interrogatories -- I mean,
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so, we send them an interrogatory that says, "Who are your
witnesses?" Why doesn't the court just say, "Both sides
identify their witnesses"? 'These guys are experts. These
guys …" I don't -- I would just say identify your
witnesses and identify those whom you intend to qualify as
experts and identify the areas on which they will testify
and the areas on which you will attempt to qualify them as
experts. Once we've got that list, we've got everything we
need to know to do a deposition, assuming the document
production has been completed.
THE COURT: Is your witness list, both fact and
expert, ready to be --
MR. JACKSON: Well, the only other caveat I would
say is -- and I think this is fair, because we're the
defendants in this ease. The Government should have to go
first, because we don't know who our witness are until we
know what their case is. They should have to disclose to
us what they intend to try to prove at trial and who
they're going to try to prove it with. And then once
we've done that, some period of time, thirty to sixty days,
then we can file our witness list.
But, if I had to put a witness list now, I
couldn't do it, because I don't know what the Government is
going to try to prove at trial. I could try to. I mean I
could sort of guess things like the dosing study, but I'm
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not in a position to --
THE COURT: Well, what are you suggesting then?
A preliminary identification of witnesses and then a final
date by which to identify witnesses, both expert and
factual?
MR. JACKSON: It could be done in stages,
although, again, I don't think that's really necessary as
long as there's some flexibility for last-minute -- and
it's not going to be last-minute. We're talking about
months.
THE COURT: Well, the only purpose to identify
witnesses at all, of course, is to allow both sides to
prepare and not to have a situation at the very end where
they have to take depositions and try to find out what --
MR. JACKSON: Right. I know. It's -- yes, I
agree, and I think that most of the witnesses can be
identified that way in this case and with maybe a few at
the end coming in like that. However, I don't know why we
need to wait to have depositions in this case for people
that everyone agrees are probably going to be witnesses in
this case.
THE COURT: That's your main point here -- is why
wait until July 1st to do a deposition when you know who
the person is and you're ready to do that deposition.
MR. JACKSON: Yes, and also I don't think it's
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going to be a good idea to tie doing depositions to the
completion of document production, because we've both
established the track record that it may be a very long
time before either side feels that the other side has
completed document production in this case. I
THE COURT: Well, if the court were to set a date
for the completion of first requests -- for example, July 1
has been proposed as a date, which is now about ten weeks
away -- but if that date or another date -- if -- that
will be a date at which time depositions could start,
whether or not that request for production is completed or
all disputes have been resolved on that. I --
MR. JACKSON: Well. I don't have any problem with
that, but I was saying not to tie depositions to completion
of the document production, because I think that's just
going to serve to delay; and if the Government really
doesn't want its witnesses to be depose, all they have to
do in delay the completion of the document production,
which is pretty easy to do, and then we can't start
deposing people.
THE COURT: Well, we're talking here about
setting up some sort of dates -- some sort of dates for
starting things and finishing things -- a date to start,
and perhaps that date could be -- I think your position
would be that date should be as of today that depositions
124
should be allowed to proceed; and of course, Mr. Harrison
is arguing that it should be a further date down after
completion of the first request for documents -- after the
completion of that document production. But, we're really
just talking about when to start. It's not --
MR. JACKSON: I agree. I agree. I think most of
this is that kind of issue, where it's a question of
setting up dates by which things should start occurring,
but it's natural that we wouldn't oppose that. We've been
trying to depose Herndon since last June, so we don't have
any objection to setting up a date when depositions start,
as long as it's fairly soon, because no one -- at least no
one from the United States has come up with a good reason
not to start them sooner.
Herndon is not an expert on anything. The
Government isn't even trying to argue he's an expert
anymore, so this interrogatory stuff is just another smoke
screen.
THE COURT: And from what I'm hearing, the
dispute is not so much over Mr. Herndon specifically, but
rather just, "You're not doing something, so I'm not going
to do something." And that's what the purpose of this
hearing is, so that there will be things that will be
started more expeditiously.
MR. JACKSON: It's largely devolved to that, your
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Honor. I agree.
THE COURT: All right. Okay. What about the
five -- well, let me first address these procedural matters
and then back up into those substantive areas as to
particular matters or particular objections, I believe,
that you made -- that your client made to requests for
production.
But, as far as the discovery schedule is
concerned. I haven't compared those dates back and forth.
But, do you have a comment of any kind as to lengths of
time or, other than what we've already talked about, when
to start things, which -- and I understand your position.
But, how much time do you think that you're going to need
here, and when would you suggest a -- is that -- are you
staying with the dates that you're suggesting in your
proposed --
MR. JACKSON: Well, I agree with Mr. Harrison.
They're going to all have to be moved back five months.
THE COURT: Right.
MR. JACKSON: And we're certainly flexible,
specially a month or two in either direction, on any of
those deadlines, particularly if the court makes it
clear -- and I think it should be clear in a case like
this -- that the court will also be flexible if the parties
have a legitimate need, especially if both sides want to
126
move dates back simply because things have become
unmanageable.
THE COURT: Well, the language that's in both of
yours, I believe -- and that is that a date as set can be
extended by agreement of the parties without leave of court
or by any party with leave of court -- in some ways takes
the court out of it, which is good; and in other ways, if
it's not by agreement, then the court becomes involved. I
think some dates have to be firm and would have to have
leave of court in which to extend, but --
MR. JACKSON: Yes, sir.
THE COURT: -- I think you're agreeing --
MR. JACKSON: I've just been in courts before
where we weren't allowed to do it even when there was
agree " of the parties, and I just don't think this is a
case where --
THE COURT: Well, I think some dates are --
MR. JACKSON: -- where that would be appropriate.
THE COURT: Some dates, I think, are appropriate
that the parties can agree to extend those; and other
dates, such as discovery cutoff dates, should not be
allowed to be pushed. Do you see what I'm saying?
MR. JACKSON: And again, I think that a lot of
the arguments that have been made against our proposed
schedule is that the cutoff for identification of witnesses
127
or deposition is too close to the trial date. That's very
easy to fix. You either move the trial date back -- and
they want a trial date that's a year later then ours, so
obviously they're not unwilling to do that -- or you move
up the deadline date if that's the problem.
THE COURT: That's not a problem. I think that
thirty days --
MR. JACKSON: But, that has nothing to do with
asking interrogatories of expert witnesses. That doesn't
justify the need for doing that --
THE COURT: Okay.
MR. JACKSON: -- if that's the only problem they
have with the schedule that we have proposed.
THE COURT: Let's see. I'm not sure yet --
perhaps it's -- perhaps it's -- I don't think it's in the
papers -- but, exactly what the status is of document
production on both sides and what it is -- I understand
what you're saying about certain documents being claimed as
privileged and not knowing which those are or work product
documents and also, although I don't think it's before me
right now, whether or not some of those documents which the
plaintiff is claiming as work product are actually work
product. But, have the plaintiffs now produced all -- or
have they now copied all documents that you have requested
to be copied, other then those that they're claiming
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privilege on?
MR. JACKSON: All but forty of them.
THE COURT: All but forty of them? And what's
the forty? Is it -- what's --
MR. JACKSON: The forty is primarily a number of
documents that we took records -- we kept records when we
were going through the document production of what we
thought we were seeing and what we were asking for, and we
compared those records with what we got, and things were
missing.
And there are also -- we -- they gave us a list
of their scientific publications -- it's about forty pages
long, to illustrate the fact that they do a lot of
scientific work there aside from this lawsuit -- and we
checked of various publications that we wanted copies of.
Some of those they've never copied for us. We've done that
for them. We gave them our list -- and we're the same way.
We've got a list of publications -- and told them, "Just
check off what you want, and we'll mail them to you."
THE COURT: Has -- are there any objection -- or
let me put it another way. Have you requested documents --
other than those forty, have you requested documents that
the plaintiff has not yet produced that you believe you are
entitled to have?
MR. JACKSON: Yes, for example, the ones that the
129
Corps has in Jacksonville.
But that also raises another question with
regard to when we're finished with the document production,
because we haven't only asked for documents from the Corps,
the Park Service, and the Refuge; and we've asked for
documents for all Federal agencies that are relevant.
Now, they've made a lot of arguments about how
that's too broad, and maybe it is. We're certainly willing
to limit it to more relevant agencies, but one thing we
asked for in September of last year was simply a list of
Federal offices that are relevant to this lawsuit that
might have documents in Florida, just so we could get a
handle on how many offices we're talking about looking at.
We're not quite in the same boat. We've only got
really one office. We have a few little sideline offices,
but we're all in one place basically. The Government, of
course has got a lot of agencies, and they're doing a lot
of than in Florida. Some of them are relevant, and some
of them are not, but we've never been able to get that
list.
And some agencies will surprise you. The US
Geological Survey has been involved in the water quality
monitoring in this issue. I don't exactly why. That seems
like an odd thing for them to be involved in, but they have
been. We're certainly not going to leave USGS out if, in
130
fact, they have relevant information.
So, it's kind of fuzzy to figure out when
document production is going to be completed. They said
that maybe the Interior Department in Washington has
relevant documents. So, we don't know what the status of
that is, as well, either.
THE COURT: Well, and that's the problem that I
have now trying to make final decisions or at least
decisions to resolve and clear up and put behind us the
request -- at least the first production for requested
documents. You use an example; and of course, that in an
example, but it's not the total of the problem, if there is
one.
In the papers that I have, although I have
received some supplementals, including yours, speaking
somewhat in general terms as to what -- how these matters
can be resolved, the most recent being motions to compel
back in October and November of last year -- and Mr.
Harrison, I guess this is for both to respond -- but, is it
presently before me to know exactly what documents have
been produced, which documents have not been produced, the
objections to documents which have not been produced, and
then the response? Is that up-to-date in these pleadings,
or do we have to have that further updated before I can
make decisions as to specifics? You mentioned five
131
categories this morning. But, are those is that the sum
total of them?
MR. HARRISON: With respect to the substance of
the objections that they had to our request for
production -- and there were some odd -- I don't know --
thirty or forty of them -- those are the only five that we
believe right now that the court should rule against them
on and provide those documents. We reserve the right to
open up the others.
With respect to the location of the documents, I
think it is important for your Honor and for all sides to
know -- it's my good-faith recollection that, when their
request was sent to us, we furnished a copy of that to not
only the Park, the Corps, and Loxahatchee, but also to the
Department of Agriculture, to US Fish & Wildlife -- and we
said, you know, "If you have responsive documents, inform
us in thirty days" -- and that it seems to have settled out
that it was the Corps, the Park, and Loxahatchee that had
them.
I have no problem whatsoever with again inquiring
whether they have responsive documents. And when I put the
July 1 date down for end of first round, it's always been
my understanding that all the District really wanted to do
was to go to the Corps.
The system has been set up that we're not sending
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documents there. They don't want all fourteen file
cabinets that we may have identified as responsive in the
Corps. We've both agreed to that. We'd be buried in
paper. What happened -- the way the system has been
working -- and we have all agreed to it -- is that we
identify them, they then go and review all of those
fourteen file cabinets, tag or bait-stamp which of the
responsive documents they want, and then those are
photocopied.
For instance, out of the three hundred and fifty
thousand we have left to look at at the District, we're
certainly not going to take them all. We're doing to
review them and decide -- and they may all be responsive.
Some may be relevant, and some we may feel may be
irrelevant, but we'll identify the most critical of those
that we need and take them.
That is what they have never yet requested to do
at the Corps. We've talked about it. They keep saying we
haven't provided the Corps documents, Judge. We can't
provide them, unless they want all fourteen file cabinets,
until they go up and look at them; and they haven't
requested a session, but, yet, they want to depose Herndon.
And they say on one hand they can do him with documents,
they say it without, and now they say that they ought to
have the documents first. Whatever they want, fine. We
133
think they should have a duty to look at the documents
first or be bound by a stipulation that they will not,
after they look at those documents, depose Herndon.
There are -- there may be documents elsewhere.
We have requests to those agencies. We'll send the thing
again, but we did it, and as far as we have known, the
responsive documents have settled in that they are at the
Park, the Refuge, and at the Corps of Engineers in
Jacksonville.
THE COURT: All right. Now, Mr. Jackson is going
to file something shortly as saying -- that quotes you, Mr.
Harrison, as saying, "Whatever they want, fine," and I
heard it here, and --
MR. HARRISON: That's modified, Judge.
THE COURT: And I also think Mr. Jackson will say
it hasn't been quite that simple --
MR. HARRISON: No, it hasn't.
THE COURT: -- and I understand that there has
been a problem. But, I need to know -- Mr. Harrison has
identified those five specific requests and his position as
to those five specific requests, which I think you have
already responded to in your papers. I need to know --
MR. JACKSON: I can respond to them further now,
and I'm ready to do that.
THE COURT: Well, if you feel it's necessary.
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MR. JACKSON: Well, I didn't mean to make more
argument. I think a lot of this stuff has already been
provided or will be. That's what I meant.
THE COURT: All right. Then let's go through his
first then. But, then, what I was getting up to is: What
requests have you made for documents which have not been
responded -- you mentioned the Corps documents, and Mr.
Harrison responded by saying, "They're there. Go look at
them, and tell us what you want." I need to --
MR. JACKSON: We've been unable to set up a
schedule, and I don't agree that they've been offered to us
and we've refused them.
THE COURT: Well, they have been as of today. I
just heard it.
MR. JACKSON: Okay. I agree. So, I think we
should set up a schedule to go look at them.
THE COURT: Okay. Well, that's something I think
that you can schedule amongst yourselves.
MR. JACKSON: Right.
THE COURT: Mr. Harrison is not objecting to your
going there, if that's what it takes, and looking at these
things, marking them, and copying them; and it's going to
take less than -- because my order is doing to require it,
not that it should have to -- but, it won't take five
months to copy those documents if --
135
MR. JACKSON: I don't --I -- your Honor, I would
be willing to guess that most of what we're looking for is
probably going to be in those offices, but, however, we'd
still -- we'd be very interested in the results of their
survey as to what other documents exist in Florida; and
that's what we've been trying to find out, not because --
THE COURT: Is that one of your requests? Is
that a specific request that you have made?
MR. JACKSON: Yes. Well, that's one that we've
made to the Government and that I'll be happy to include in
our motion today.
THE COURT: Well, how would you like us to
proceed with what you have requested that they haven't now
yet produced? Can you identify those?
MR. JACKSON: I -- yes, your Honor. I would say
that they need to finish the Park production, the forty --
THE COURT: Do you have the numbers of these
things, so that I can refer to your request -- or maybe I
don't even have your request. But, go ahead and just
describe them for me.
MR. JACKSON: Okay. To complete the Park
production -- and that includes the documents that haven't
been copied yet that we asked for. That's very minor -- to
provide us with the information about what they have on
computer at the Park and the Refuge. Just tell us what it
136
is. We're not saying we want it all. We just want to know
what to ask for -- that's responsive to our request. If
they've got stuff on the computer -- if they've got stuff
on the computer that's not within our request, then we're
certainly not interested in even having it described to us,
but just tell us what you've got that's responsive.
We want to see all of the maps that they've got.
We'll -- whether -- if they want to say that their maps are
incomplete and won't show them to us, then fine, we won't
show them our incomplete maps. If the court orders that
both sides have to show incomplete maps or all maps,
whether they're complete or not, we'll live with that. We
just want it to work both ways.
We didn't -- we saw one map when we were at the
Park and Refuge, a vegetation map -- I'm not talking about
like a road map -- a map that purports to chart where
cattails are or where impacts of nutrients have been
documented; and they said they wouldn't copy it for us.
They said it was copy-written. So, we've -- and we've got
a lot of that kind of information, too; and we haven't
shown it to them.
I think both sides should be ordered to produce
whatever they've got that shows where vegetation is. We
showed them a lot that we do have. We Just didn't show
them the ones we weren't finished with, because we haven't
137
ground-truthed them. We haven't gone out on the ground and
figured out whether we really think that's where the
cattails are or not, something you really have to do for a
map to be of much use in the courtroom.
We also went them to produce a list of all of the
documents that they did not disclose to us at the Park and
the Refuge but which are responsive, and we'll do the same
thing, and I think that should be -- the court should key
that to the date of the production session. It
shouldn't -- I don't --
THE COURT: -- privileged and work product
documents?
MR. JACKSON: Yes. I don't think it necessarily
has to be the day we show up with the documents. Sometimes
that's not practical. Sometimes we're still trying to
decide what we really want to invoke a privilege on while
we're producing the documents. But, a week, two weeks,
three weeks, thirty days, after that session, both sides
should have to disclose what they didn't produce -- that
they pulled as privileged -- not everything they didn't
produce, because we're working through this in stages, of
course.
But, whatever was in the files they checked that
was responsive but was not produced, they should be
required -- both sides should be -- to identify each
138
document with respect to who it went to, who it came from,
what it's about, and the date of it, and what format it's
in if it's not a piece of paper -- if it's a letter or a
memo -- the sort of things that just are sort of routine in
most litigation.
And we want the court either to set a date by
which depositions can commence or allow us to depose these
three parties -- witnesses. We're not asking -- we have
not tried to depose anyone else in the case, and we have
not resisted -- and they haven't filed any deposition
notices, but we haven't resisted allowing our people to be
deposed. And I don't think they're going to want to live
with that 24(b) argument when they try to depose our sixty
or seventy experts that they seem to think we have.
I'm looking for my list. I think it would also
be helpful, particularly if we're going to have a cutoff
date by which the District has to have produced all of its
documents in response to their fifty-nine category
requests, for the court to decide the issues of what the
limits of that request are. In other words, do we have to
go north of the Lake, and is -- will it be adequate for the
District to certify -- and we've cited cases where courts
have only required this much -- to say that we looked in
the places where it was likely for those documents to be
and not require us to certify that we've turned over every
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document that has to do with, say, the MOA or the EAA or
something like that.
And I can go through the categories that they
mentioned this morning and tell the court exactly what we
have and intend to produce, and I think most of the time --
most of the objections we made to their requests were
attempts to clarify the request by making them more
specific. They would have vague language in there, and
we'd object to it as vague, and then we'd -- then we
attempted to rephrase their language and produce what we
thought they were really looking for.
If I don't know what the request is really
looking for because the language is vague. I can't ever
certify that I responded to it, that I gave them all
responsive documents or listed responsive documents that
I'm not giving to them in a privileged list; and we're
never going to know it's over until we're able to do that.
THE COURT: Well, is that something that you
think that, as to those five areas -- Mr. Harrison, I'd
appreciate your response on this, too. Is that something
that's simply a misunderstanding between the attorneys as
to what's being requested by the United States here and how
things -- certain things are defined, and so, therefore, it
could be worked out by just your talking about it and
deciding which -- what it is that you're really asking for;
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or is it that there's an objection -- I've read the
objections -- but, is -- that there would be an objection
other than work product and attorney/client privilege
there?
MR. JACKSON: I -- my feeling is that it won't be
worked out entirely among the attorneys.
For example, they've asked for these memoranda or
decisions or orders that fall within Florida Statutes
120.53. What that Statute basically requires is it sets up
a certain class of things that agencies produce, mostly
decisions -- I assume what they're interested in is
regulatory decisions -- and they have to be published.
Florida has a version of the Federal Register. They have a
State thing that publishes administrative decisions. It's
contracted out. We contract it to a printer to print ours.
They're printed. They're a matter of public record.
They're indexed. You can go look them up, just like you
can look up something in the Federal Register.
THE COURT: Then what's your objection? That
they're matters of public record or --
MR. JACKSON: Right. And if that's really what
they're looking for, they can look those up as well as we
can. All we're going to do is sit down with the same
public record and try to find all of these things. If they
want them, they should have to go look them up. It's like
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asking the United States to produce stuff that's in the
Federal Register.
MR. HARRISON: Can I respond to that for just --
THE COURT: Yes.
MR. HARRISON: -- just -- for that particular
one.
We sent Ms. (Unintelligible), one of our
attorneys, to the library and spent two days looking at the
FALRS -- that's what they're called -- the Florida
Administrative Law Reports, which really didn't get cranked
up until about 1978. Our request predates that. But, the
other problem is unless it just simply hasn't been
published. The fact that the Statute required them to do
it doesn't mean that they have done it.
She didn't find anything of any relevance that
there had been administrative hearings or orders in there,
which surprised us, so we felt that we did have the
obligation to say, "If there is some administrative
hearings or orders which should have been published, but
regardless of whether they were, we went a copy of them."
We do know that throughout the States some of the
water management districts have had administrative hearings
and orders. DER has had. We found it very surprising that
we couldn't find them, and maybe Ms. -- maybe she was
looking in the wrong place, but she was looking at what
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information we had was in the FALRs.
So, we asked for those from the District, and I
don't think there's anything improper about that. Much of
the information that we're providing each other is public
record information, your Honor, that has been circulated
all around.
I would like to at least respond to some of
those -- some specifically.
THE COURT: Okay. But, I want to have Mr.
Jackson finish first telling me what it is that -- or if
you have further responses as to these five specific
requests --
MR. JACKSON: Well, again, on that particular
response, the only other thing I heard this morning that
told me what they were looking for when they said
administrative orders was notes of meetings in which people
sat around and decided whether or not to regulate the EAA.
As I've said, to the extent we've got that kind
of thing, we went to the Regulatory Department, we went
through their files, and we've produced all of that stuff.
We gave them all of their letters, every -- all of the
memos, all of the junk they had in their filing cabinets.
A lot of it, I'm sure, wasn't very responsive, but we
turned it all over. We found stuff in there that seemed to
be what they were looking for, and I'm sure they did, too.
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They asked for copies of things.
The only other thing they've identified is
documents that they say are required under 120.53, and that
Statute requires that certain documents be published. I
don't know if they're looking in the right place or not,
because I can't remember exactly what -- I think it's
called the Florida Administrative Law Weekly, and I've
never looked at that. I don't know what's in there or not.
But, if what they're asking for is what's required to be
published there and it's not published there, then our
position is we don't have them. Otherwise, they're
basically asking us to go look for documents that we were
required by law to publish and that, in fact, we haven't
published.
I've asked my people. They say they haven't
broken the law, they haven't failed not to publish things
they were required to publish. If that law went into
effect in 1972, then, to the extent they're asking for
stuff required by that law, it doesn't exist before 1972,
because it wasn't required before then.
The gist of my argument is that I know what
they're looking for. They want to know when we sat around
and decided not to regulate the EAA. Now, I deny that
occurred, but assuming that it occurred, we have given them
access to the documents that are going to have those
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smoking guns, if they exist, in them. They're not going to
be published in the Florida Administrative Law Weekly, or
maybe they were and they apparently couldn't find them. I
think it's a dead issue. We've given them what they're
looking for.
Now, again, we have not looked in every filing
cabinet in the District to find every memo that might
relate to whether or not the EAA should be regulated. You
know, if we're going to have to do that kind of a dragnet
in the District, we'll have to do it for everything else,
like the MOA. It will be months before we're able to do
that.
And we haven't even started going through
archives materials yet. They told us that they wanted what
we already had in the filing cabinets and they didn't want
to go through archives yet, and we haven't done it. We're
dealing with the tip of the iceberg, especially if we keep
these requests as broad as they insist on their being.
I'm only asking that we try to narrow it somewhat
so we can get this over with with a minimum of effort,
although even a minimum we're still talking about hundreds
of man-hours of time to get this kind of stuff; and we're
producing lots of documents.
We are willing to produce for the Government, as
soon as we get this started again, all of the documents
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that we've been producing for the Sugarcane League over the
last few months; and to date that's about five hundred
thousand pages of documents; and we'll give them everything
we've given the Sugarcane League.
If we've been able in less than a year to
generate five hundred thousand pages of documents, there
seems to me to be little likelihood that, in fact, there
are very important documents floating around that we
haven't uncovered yet -- that they may be -- and I'm not
saying that it's impossible that they exist. I'm just
saying that that's a fairly heavy-duty effort, and it's
produced a lot of stuff that both sides -- and I mean the
Sugarcane people as well -- are very interested in.
At these document production sessions, they want
thousands of copies. We do, too, when we went to the Park.
We asked for thousands of pages of paper. So, we're
obviously seeing what we're looking for -- both sides
are -- and I think to try to find the last needle --
THE COURT: Well, Mr. Harrison (inaudible) --
MR. HARRISON: I wholeheartedly agree, your
Honor, that they are, but there is one fundamental problem
on -- and it's a double check -- in Mr. Jackson admitted
they took our request and then the lawyers summarized that
request and sent those memos around to their division
heads. We took their request as it was written and sent it
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around.
Some of the requests, they are a little vague;
and some have these scientific words of art in them.
Undoubtedly their scientists helped to prepare those
requests. Ours certainly did ours. And what may not mean
something to the attorney may mean something to a division
head; and his example is exactly perfect -- that they had a
request and by word of mouth said, "Oh, Joe Blow has these
documents." and they coughed up seventy-five thousand
documents. Had that word of mouth not occurred. those
documents may never have been provided.
It's a very small thing to ask to say circulate
the actual request that we sent them, vague as it may be.
to the division heads who know their own files, rather than
to try to guess.
THE COURT: From what I'm hearing, though, it's
not a small request and that, if it were to go
District-wide, that it would take months, as Mr. Jackson
points out, and hundreds of man-hours to complete a search
for perhaps an additional five percent of those documents,
of which Mr. Jackson says many of which have already been
produced, at least in substance, in other documents that
have already been produced. Are you still seeking
District-wide production?
MR. HARRISON: No, what we're seeking, your
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Honor, is that the division heads would at least have the
opportunity to compare the memo that Mr. Jackson wrote that
attempted to summarize our request for production and then
see what we actually wrote. If that triggered a difference
in his mind or if there was something in our request for
production that Mr. Jackson and the trial lawyers failed to
summarize properly, he may know his files well enough to go
to which file cabinet. If in that division head's mind he
says, "Well, they look the same to me. We've already
produced it. No problem," then that's okay, but it's a
small double check to simply make the division heads
actually read what we wrote.
THE COURT: All right. Are you willing then to
restrict your -- or to limit your request to documents
geographically to the south of Okeechobee?
MR. HARRISON: Well, I hope your Honor noticed
that, in the five areas I identified, the related wetland
systems was not one of them. So, yes, have virtually
accepted the fact that we will go south of the Lake.
If we want to narrow the request -- and that's
what they've been asking -- there's clearly only two
things -- specific areas that we want -- is that, if they
have proof -- if they've studied, for example, the Bony
Marsh or in the Upper Kissimmee Basin -- that they have
proof that nutrients will damage a wetland system or if
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they have proof that they can or cannot regulate
agriculture north of the Lake -- because if they can
regulate agriculture north of the Lake, they can regulate
it south of the Lake. Those are the two guts of the
issues. Anywhere in their jurisdiction, if they have proof
that nutrients are damaging the wetlands or they can
regulate agriculture, we're willing to restrict that
request that narrowly north of the geographical area
involved in this lawsuit.
Those are the guts of the lawsuit. We don't want
all of the water quality data. We don't want repetitive
studies on just simply that parafytin is the base of the
food web or whatever all over the whole jurisdiction. But,
on the two guts of this issue, that nutrients in fact
damage this wetland system -- if it damages the wetland
system up there, it's going to damage the wetland system in
Everglades National Park.
And those are relevant; and I think that, if
they're willing to work with us, we can perhaps narrow some
of these other requests, but we have to have some
information, for instance categories of documents that they
have.
THE COURT: Well, the purpose is now -- it
sounds -- it -- I mean, I'm hearing that the five items
that you're pursuing here, Mr. Harrison, are documents that
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would not be found outside of the south of Lake Okeechobee
area. Is that correct, Mr. Jackson, I mean, as you
understand where these things would be located?
MR. JACKSON: Well, not entirely. I mean, I
agree that there may be studies about wetlands impacts
north of the Lake. That -- in fact, when we asked them --
we talked to the people that had this -- these documents,
seventy-five thousand pages; and we set this geographical
limitation up on our own. The attorneys did, because we
had to make it manageable; and we said, "What if you took
that off, how much stuff would we be talking about?" They
said, "You're going to double it."
THE COURT: Are divisions located throughout the
District, or are they all located in one particular place?
For example -- or more specifically. Mr. Harrison says that
he would like all division heads to see the actual document
request, rather than the paraphrase or the explanation of
that.
MR. JACKSON: Well, one of the reasons we didn't
do it that way is because, for example, No. 4 asks for
effects of nutrients on water quality, sediment
characteristics, bioda (phonetic) in an Everglades marsh or
related systems. When we showed that to people, they said,
What is a related system?" That meant nothing to them.
When we asked the Government what Everglades
150
marsh or related systems meant, they said, "Everglades
marsh or all other wetlands within your jurisdiction." So,
every time we tried to get them to explain to us what it is
they want, it gets broader, not narrower; and so, we
started imposing our own limitations, just to make it
reasonable and objecting to it being broader.
And I would also like to comment that the way
this issue this morning has been handled is very
characteristic of the way -- of why we've had problems
reaching agreements with the United States. For example,
we got into a big fight about whether or not we were going
to use a hotel room and whether or not we were going to
bring the documents over in a box. They wanted to go look
at all of our filing cabinets, which we just -- it just
seems crazy to us. But, anyway, we thought we reached an
agreement on that.
We had a big fight, we went in front of the
magistrate, and we filed papers. Finally, everybody
decided this was crazy, "Why don't we just reach an
agreement about how we're going to do it, "and we did. And
now, this morning I hear that what actually happened is the
Government thinks that issue is moot for now and they're
reserving their right to continue to object to it at some
point down the road.
I think those kinds of issues should be resolved.
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If the parties resolve them by agreements, then we stick to
the agreements unless the circumstances wildly change and
there's some reason to let one party out of the agreement;
or the court decides them, and we live with them and we go
forward. If the court decides that we're not going to do
documents north of the Lake and we don't do them, then
that's it.
Now, if something comes up to change the facts at
some point in the future and that looks like that's a bad
idea, then, of course, a motion to reconsider is proper.
But, if the parties are going to agree on things, we're
going to have to have agreements that we all stick to.
Almost every time the Government has filed a
brief since we agreed on how we were going to produce
documents, they've complained about the way we've produced
documents. That's not fair to us, because they keep trying
to prejudice the court and make it seem like we're trying
to bamboozle them, even though we thought we reached an
agreement in which they were going to accept a certain
method of production.
And they've produced their documents virtually in
the same way, the only difference being they didn't rent a
hotel room, but they still brought them in in boxes. We
didn't look at them in filing cabinets. We don't want to
look at them in filing cabinets. We can't figure out what
152
earthly value there is in going through these people's
offices. It's enough work for us to have to do it before
they look at them. I don't know why they want to do it.
But, we simply -- that's just impractical, as far as we're
concerned; and they have no right to do it that way.
But, that's one of the reasons we're having
problems reaching agreements. If Mr. Harrison is willing
to say this morning, "Let's forget about related systems.
We'll stick to what we've asked for, and we're not going to
raise that issue," fine, let's forget about it. If he's
going to say, "Let's forget about it for now, and then six
months from now we'll decide whether we really want to
forget about it," how are we going to know when document
production on just the first request is over with, if
they're going to keep saying, "Well, we may raise this
issue later on."
We'd like to know now so we can go through the
District, find the documents, tell us what we're supposed
to do, and then we can say. "It's over with." Otherwise,
it'll never be over with.
MR. HARRISON: I'm willing to resolve that issue
by simply the -- only studies which directly show the
nutrient impact -- nutrient. I don't care about pesticides
or anything else north of the Lake. We know pesticides
hurt water. Whether the nutrients have, in fact.
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damaged -- are shown to have damaged wetland systems that
are within their jurisdiction. I think that's extremely
relevant, regardless of where that study is -- or documents
to show that they can or cannot regulate the agricultural
introduction of those nutrients into the water. That is a
very -- that is very -- there's a reason for this.
For instance, the St. John's Water Management
District has been able to regulate. Quite frankly, your
Honor, the EAA is an extremely powerful political lobby.
There is some reason that other agricultural areas in the
State have been regulated, at least to some degree. There
is some reason that the EAA has not. If we can show that
they have the ability to regulate in areas that perhaps are
not as able to put up as strong a resistance, then at least
it proves our case that they can regulate the EAA. That is
central.
We don't care about any peripheral issues, only
those two main issues north of the Lake; I'll be bound by
that. We'll restrict the related systems only to the
issues of direct nutrient impacts and the ability to
regulate.
THE COURT: All right. Now, you're getting very
specific for my purposes, but -- or perhaps a little bit
beyond --
MR. HARRISON: I know it is.
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THE COURT: -- my familiarity with this case.
MR. HARRISON: But --
THE COURT: But, what exactly are you agreeing
to -- or what --
MR. HARRISON: We'll agree to the -- on the hotel
thing as well.
THE COURT: But, I'm not talking about that.
We're talking about --
MR. HARRISON: Okay. On the related --
THE COURT: Which documents north --
MR. HARRISON: The related wetland systems?
THE COURT: Yes.
MR. HARRISON: Okay. If they have documents to
show direct adverse impact on wetlands anywhere in their
geographic jurisdiction, we want those documents, because
we fear that they're going to be raising a defense that
it's hydraperiod (phonetic) and it isn't nutrients. We
want to disprove that .
THE COURT: Which request are you now referring
to? Do you know the number of that request?
MR. HARRISON: The related systems -- do you have
that, Susan? As I recall -- is that in the reply?
MR. JACKSON: 4 and 5.
MR. HARRISON: Okay.
MR. JACKSON: It's just -- it looks to me like
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it 's just 4 and 5 --
MR. HARRISON: Is it?
MR. JACKSON: -- although, of course, those are
two of the broadest requests they've made.
MR. HARRISON: Well, but, I'm trying to narrow
that down extremely, I don't want pest -- I don't want
general water quality data. I don't want studies for storm
water runoff or how to regulate golf courses or anything
else in the north -- in the systems -- and there is a ton
of that. The District has a lot of varied duties -- but,
studies showing that nutrients destroy or adversely affect
the wetlands. That --
MR. JACKSON: That's what it already says. It
already says that.
MR. HARRISON: Well, of course, it says that, but
I think that your argument has always been that it says
much more then that and it was too vague; and I'm trying to
narrow the request; and I think that that is narrow. I
don't know how that I can narrow it more than that.
MR. JACKSON: If I may, your Honor, what I would
like to suggest in response on this particular issue is
that in one of the briefs the Government said, "We know
that there have been studies conducted on this issue north
of the Lake that have proven that water quality does have
impacts on -- nutrients on water quality. If they'll
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identify those studies -- they just mentioned one it
sounded like this morning. They seem to know what they're
looking for. If they would just say what it is, we'll
provide it, and we have no objection to it, if they'll
identify what they're looking for. But, the objection we
have is to just a broad-based request in an area that's
outside the relevancy of the lawsuit. That's all. That's
our argument.
MR. HARRISON: It's not outside if they expect us
to be able to know what studies they've completed. If they
want to provide us a list of the studies that they've
completed, we'll narrow the request in that regard, but I
cannot glean what studies they have done.
I did mention the Bony Marsh study because I've
seen a reference to it in one of the documents. That was
maybe fortuitous. We got the document. Maybe you've
already supplied documents in that area. But, Judge, I
don't have any way to select that.
THE COURT: Let me try to broaden this up just a
little bit then. Are you saying, Mr. Harrison, that, other
than Requests 4 and 5, you're willing to restrict your
request to a geographical area south of Lake Okeechobee?
MR. HARRISON: Yes, your Honor, that and -- now,
other then those two issues -- those issues -- the
regulatory issue, your Honor. pervades through a great deal
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of the request for production, for instance in the Request
Thirty -- I believe it was 31, 33 -- Regulatory
Administration -- anyplace they have regulated agriculture,
and I mean regulated agriculture for water quality.
The District has essentially four types of
permits they can issue; consumptive use, which regulates
the use of water by farmers; the management and storage of
surplus water permits; storm water runoff permits; and then
DER regulates what's called discharge of water into State
waters. Those are the guts of this case.
If they have regulated agriculture in other areas
of their jurisdiction but for some reason have not
regulated the EAA, that is central to prove our case. We
can't give that up. It shows that they are for some reason
not regulating the very area we're complaining about. We
know they haven't regulated the EAA.
THE COURT: Okay. So, I'm trying to be as
specific here as possible about which specific requests you
are limiting and which you are not by agreement; and then,
of course, I'll make a decision here. But --
MR. HARRISON: Okay. I'll see if I can't find
the -- the 4 and 5 that Mr. Jackson was talking to, they
are broad. It talks about bioda in Everglades marsh or
related systems. Forget bioda. Forget sediment
characteristics. Forget anything that doesn't directly
158
impact regulation -- excuse me -- nutrient effects on the
wetland systems. Now, I know that that may still be broad,
but that is the central issue in our case.
If they have -- they have sixteen counties in
their jurisdiction. If we can show that they, one, know
that nutrients are the problem and that it isn't
hydraperiod, and if, two, they show that they have the
ability to regulate that problem, what difference does it
make whether it's in the EAA or whether it's north of the
Lake? The fact is they haven't regulated it in the EAA.
There's nothing better in the world to prove it than if we
could find that they've regulated some farm north of the
Lake. Our whole contention is that it's -- they've not had
the political wherewithal to regulate the Sugarcane League.
And Judge, we can't give those two guts issues
up, regardless of where they exist.
THE COURT: You're talking about still on
Requests 4 and 5?
MR. HARRISON: Yes, 4 and 5.
Now, 4 -- these were not regulatory issues, 4
were meeting notes and so and so on -- the effects of
nutrients, water quality, sediment characteristics, bioda
in Everglades marsh or related systems. These are
biologically related requests.
5 -- let me see what it says -- relating to
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effects of hydraperiod on water quality characteristics,
bioda of marsh and related systems. The reason that those
are relevant, regardless of where, is we are completely
aware that the District -- we know that the agricultural
interest is claiming this, and I think Belle Glade and
Clewiston probably will if they're allowed to get into that
area. I don't think they will be, but -- the District is
clearly going to claim that -- at least we think -- that it
isn't just nutrients, that it's hydraperiod; and therefore,
since the Corps of Engineers regulates hydraperiod, in
other words the quantity and timing of the water, that it's
really all the Corps' fault.
It's central to our case to prove, as Walt Dineen
(phonetic), their former deceased chief of their water
Quality Division, said, "It's nutrients. It ain't
hydraperiod." He said it on videotape. He said it to the
Board of Directors.
We want to prove their scientists have known
that. Their Board of Directors has been told that. And if
they raise the hydraperiod as a smoke screen defense in
this trial, we want every piece of ammunition to show that,
no, they know that's false. It's nutrients. They've known
the problem, they know the source, and they should regulate
it. It's central to our case. I can't limit that
nutrients or the regulation of agriculture to just the EAA,
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because they haven't regulated the EAA.
THE COURT: Okay. Any others, other then those
two?
MR. HARRISON: Judge, other than the -- well,
19 -- let me look at 19, Water Resources Division -- 19 --
excuse me -- Water Quality Division -- internal memoranda,
meeting notes, other documents relating to effects of
nutrients, water quality, sediment characteristics. That
is the same request of the other division.
I think that a ruling that they have to at least
be responsible as a single defendant, the same as the
United States is agreeing to be responsible, and they can't
shelter behind the fact that the documents may, in fact, be
in another division, that'll solve that problem. There is
absolutely no justification for saying that the United
States has agreed to be responsible, regardless of where
the documents are located in the Federal Government, but
that somehow the District doesn't have to at least be
responsible, because it may be in one division that we
didn't guess.
THE COURT: I understand your position, but what
I'm asking for --
MR. HARRISON: It's --
THE COURT: -- is those items that you are
willing --
161
MR. HARRISON: Yes.
THE COURT: -- or agreeing to limit in those --
MR. HARRISON: Okay.
THE COURT: -- or the other way around. Which of
these requests do you believe should be District-wide?
MR. HARRISON: Okay. 19 is the same request.
It's just that we had it pigeonholed in another division.
That should be District-wide, but again, we're willing to
limit that rather than the somewhat vague term of bioda,
but clearly (a) nutrient impact on wetland systems,
regardless of what division it's in, and the regulation of
the introduction of those nutrients by agriculture.
MR. JACKSON: Again, your Honor, we actually
don't object to producing the information south of the
Lake, regardless of what division it's in. We were doing
that anyway.
THE COURT: Right.
MR. JACKSON: It's a geographic problem, your
Honor.
THE COURT: I understand that.
MR. JACKSON: Okay.
MR. HARRISON: Our problem with it. your Honor,
is, if they have for some reason not regulated south of the
Lake but they have regulated this problem north of the
Lake --
162
THE COURT: Right. And that --
MR. HARRISON: -- then you're taking our proof
away from us.
THE COURT: Right. Well, that's what I'm asking
you. Which of these numbers do you -- which of these
specific requests do you wish to expand beyond north of the
Lake?
MR. HARRISON: Okay. The regulatory
administration questions that begin at 31 all of the way
down to 35. We cannot afford to not get regulatory
information, regardless of where it is, as long as it's
regulating the problem that we're complaining about. I
guess maybe that sounds simple to me, because we've been in
this darn case for so long.
But, positions analysis -- for instance, 33. It
says positions analysis, documents regarding implementation
of DER delegated storm water authority, or the basis for
any exemption to the EAA landowners from surface water
management. That restricts it to the EAA.
MR. JACKSON: And the same is true for 31. It's
restricted to the EAA.
MR. HARRISON: Yes. and it is. Let's look at
34 -- positions, opinions. analyses, or documents regarding
incorporation of water quality requirements and the
consumptive use permits. That has to be District-wide.
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One of the points of contention between us, your
Honor, is that the United States believes that -- see, they
have issued quite a few consumptive use permits to the
agricultural interests in the EAA, but they've not required
any water quality conditions as part of those permits. We
believe that there's State law and there are rules that
clearly say that they should be using the consumptive use
permits to also regulate water quality.
If they have anywhere District-wide used any of
their permitting authority to regulate the quality of water
by agriculture, whether it's the use, the storage, or the
discharge of those waters, it's central to our case, and we
cannot give that up.
MR. JACKSON: I don't think we objected to 34 to
limit it to the EAA; and my recollection is, when we looked
for those documents, we did not limit that to the EAA.
THE COURT: Meaning limit it then geographically
to --
MR. JACKSON: Yes, but we did only look in the
Permits Department.
MR. HARRISON: And that's what bothers --
MR. JACKSON: We're also looking in the Legal
Department, too, for those documents; and we'll produce
them if they're not privileged.
THE COURT: Okay. Any others?
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MR. HARRISON: Your Honor, Walt Dineen, for
example, was in the Water Quality Division; and I know a
lot of his documents talk about the fact that they have the
authority to regulate and they should be regulating.
We don't want them to decide which division we
should -- our request should go to.
MR. JACKSON: We -- we --
MR. HARRISON: I think that that is basically
unfair.
MR. JACKSON: They new all of Mr. Dineen's
files --
THE COURT: All right.
MR. JACKSON: -- regardless of what their subject
matter was.
THE COURT: Let's try to wrap it up then here.
What further do we need to discuss?
MR. JACKSON: If I can just have a minute to go
through my -- the notes I made.
THE COURT: All right.
(Mr. Jackson examining his notes.)
MR. JACKSON: Maybe the best thing would be for
me to go through -- and I'd be willing to stop at that
point -- the specific requests that we haven't already
talked about just now --
THE COURT: All right.
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MR. JACKSON: -- that were raised this morning.
THE COURT: All right. Go ahead.
MR. JACKSON: My notes show we've -- I think
we've beaten 33 and 34 to death.
37 -- we will produce 37. We've objected to that
before. but we'll produce it.
56 and 57 and then 59 -- 56 -- as I said, the
District actually, although it's grown since that time,
exists to run this project. Therefore, at least for a long
time in our history, in a way, everything we had related to
the Corps' supervision of the District.
Nonetheless, we have identified certain areas.
In other words, we found the people that deal with the
Corps on a regular basis, at least the people in the
District who open and shut the valves every day and run
that microwave system that Mr. Harrison was talking about.
We asked them how they knew what to do every day. "How do
you communicate with the Corps? How do they tell you what
they want you to do?" They said most of it's in these
manuals, that we're -- that we will provide.
Some of it is in something called a General
Design Memorandum. That's like a hundred volumes of books.
most of which are the size of phone books. They're
basically engineering drawings for all of the structures in
the project, and they set forth what those structures are
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going to be used for. Those are in our library. Anybody
that wants to can come to the library and look at those,
and we'll make copies at fifteen cents a page.
THE COURT: Which request are you referring to
now?
MR. JACKSON: 56.
THE COURT: Okay.
MR. JACKSON: The Corps in Jacksonville also has
a copy of those documents.
Now, there are some, again, file drawers full of
correspondence, memos, notes of meetings, and that sort of
thing, dealing with various -- maybe disputes isn't the
right word -- but, just the coordination with the Corps on
how to run the project. We've found those. I think there
are two file drawers basically of that. Those are in the
offices of the people that open and shut the gates. And
we'll produce that.
Again, this is just like many of these other
requests. I can't guarantee that that's everything the
District has with respect to its coordination with the
Corps, but we haven't uncovered anyone else who's likely to
have that kind of material that we haven't already run
across in all of the other divisions we went through. And
we found quite a bit of it in other places that we looked,
and we've turned all that over.
167
So, this is on-- of those where I think we're
giving them ninety to ninety-five percent of what they're
looking for, with a fair amount of effort. We have to keep
in mind, of course, that this is the Corps of Engineers
we're talking about, so the Corps is likely to have a copy
of every single one of these memos and letters and things
if they went to the same meetings. But, if we've got
meeting notes, we'll give them. We'll give them what we've
got that we've been able to find in response to 56.
MR. HARRISON: Your Honor, maybe I can at least
narrow those two if we would do it on an item-by-item
basis.
56 -- Mr. Jackson is exactly right. When it
talks about the District's discretionary authority in
relation to the Corps of Engineers, there is an O&M
manual -- they call it -- an operation and maintenance
manual, that would have been given to the District by the
Corps of Engineers; and certainly the Corps will have a
copy of that -- as to how -- as to when the major
structures in this system have to be opened or closed when
the water levels hit certain points at certain times of the
year. That, we don't care about. The Corps has that.
If, however, the District, within its own
internal regulation of the water levels, within that level
of discretion, has any of its own manuals as to how -- what
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criteria it uses to manage those water levels within that
discretionary authority, we do want that. We, of course,
are not going to ask them to provide something that's
sitting the Corps' office. So, I don't have any problem
with that. But, if they have their own stuff with respect
to how they operate their own discretionary authority in
56, we definitely want that.
The item in 37 is a little different. It's
called operations Control Manual, dealing with these fifty
microwave controlled structures.
THE COURT: He's agreed to produce 37.
MR. HARRISON: Yeah. and I think that is uniquely
theirs, and we do want that.
THE COURT: 57, I believe that, Mr. Jackson, you
have no objection to?
MR. JACKSON: Yes, 57(s) and (b) -- I believe
that, to the extent we've got that sort of information and
it's in our Water Quality and Environmental Sciences
Departments -- there's also a bridging -- there's a
super-department above that -- and we've produced all of
those files or will produce them as well. I'm not aware of
anywhere else to look for that kind of information in the
District.
(c), I don't know -- I think economic research is
too broad and too vague. I don't know where to start
169
looking for economic research. There have been some
economic -- there has been some economic information in the
Water Quality and Environmental Sciences Divisions, and
that was produced.
The reason I keep going back to that is because
obviously they're interested in the EAA because of its
alleged environmental impact on the water conservation
areas. To the extent we've got information that deals with
the alleged environmental impact, including things like how
they manage water in the EAA -- there's a big issue as to
whether or not that's why there's pollution, and there's
been a lot of study of that.
The study and the work that we have and the
reason we have it with respect to the EAA is going to be in
our Environmental Department, and that's where we looked.
That's why it seems imminently logical to us to cut it off
with looking in the places where it's likely to be. They
want it because they think it proves environmental harm.
We looked at the places where people study environmental
harm to see if they had it. Sometimes they have
information about the EAA.
We've got come contracts that we've been doing to
try to study the impacts of water management practices in
the EAA on phosphorous and nitrogen downstream. In fact,
that was one of the things that they specifically requested
170
during the discovery hiatus, and we gave it to them -- an
update of that project.
On (d) and (e) it's the same thing. Those are
basically subsets of (a) and (b), it looks to me like.
(f) was dropped by the Government in a discovery
conference we had in June of last year.
(g) and (h) -- if we've got water quality data on
the EAA, it's already been produced or it will be produced,
so we haven't excluded the EAA to the extent we have water
quality data. (g) -- I don't really know exactly what (g)
is talking about, but to the extent that they're talking
about flooding and draining fields, for whatever purpose
that's done in the EAA, and that -- the impact of that on
the environment, that's already produced in the areas that
we've already gone over.
And enforcement of water quality standards in the
EAA, that -- it's not clear to me what that is either. I
don't know whether or not they're talking about a policy
decision. Again, they allege that we're not enforcing
water quality standards. I don't know if they're talking
about that or whether they're talking about enforcement
actions against the EAA permit holders. We've never
attempted to produce enforcement files, because we've
never -- we never thought they were asking for that. If
they're talking about policy -- regulatory policy, that's
171
already covered in the previous request with respect to
regulatory policy; and as I said, we have and will produce
that.
I think 57 basically, to the extent we can figure
out what it is where it's not too vague, is largely covered
by other categories. It's somewhat difficult for us. We
don't have an EAA Department, so there isn't anywhere we
can go to find everything we've got on the EAA, but we have
made it clear to people that we've talked to -- as I said,
we're looking for everything south of the Lake. That
geographic limitation was made clear to everyone we talked
to. They all know what the suit is about; and the EAA is
south of the Lake, so there's no reason to think that
information would have been excluded where we've looked.
59, we continue to object to, because it says
produce all evidence to prove that you're violating water
quality -- I don't know what -- it just says water quality.
I assume standards. We deny that we're violating water
quality standards, and we've cited case law that says that
a plaintiff cannot ask a defendant to produce documents
that prove the plaintiff's case when they're so described.
If they went to describe what they think it takes
to violate a water quality standard and say, "Produce those
documents," they're entitled to do that, but we're not --
we think that the law doesn't require us basically to
172
provide documents and say, "All of these documents are ones
that we're providing in response to 59, and they prove that
we've violated water quality standards," particularly when
we deny that that's true, and we don't know how they intend
to prove that we have violated water quality standards.
But, with respect to water quality in water
conservation areas in the Everglades south of the Lake,
we've provided everything we have or we will when we
produce the SWIM documents. So, presumably, if the
violations are proved somewhere in those documents, they
can figure out what documents prove that and, I guess,
argue them in front of the judge.
MR. HARRISON: Your Honor, may I respond to at
least 57 through 59 specifically?
THE COURT: All right.
MR. HARRISON: 57 -- Mr. Jackson's analysis of 57
I think points out one very good thing -- is that neither
Mr. Jackson nor I nor the lawyers are expert enough to
fully understand some of the terms of art. He pretended
not to know, or maybe he didn't know. I take -- I'm sorry
about that -- detention and retention of water in the EAA.
Those are terms of art that the scientists in those
divisions are going to know what that means.
On-site detention or on-site retention is one of
the things which may ultimately help the water system here,
173
if the farmers retain some of their water and reuse it for
recycling -- things we think they can require and they have
not.
I don't believe it's legitimate to have any of
the lawyers screen this request, attempt to summarize it
with their limited knowledge, and then provide that
screened request to the division heads. The divisions have
a right to at least see this. We have that much of a
right.
For example, he says the economic research ought
to be in the Environmental. Most likely, if they have a
Planning Department -- they plan projects -- it'll be there
as well.
How -- should we be held hostage to Mr. Jackson's
determination only to submit that memo to the Environmental
Section, when there may well be something in the Planning
Division? Neither he nor I have that expertise. That's
why we said that this thing has got to be District-wide.
We've taken that responsibility. They have let the
scientists that know tell us these are too vague or tell us
through Mr. Jackson, and -- so, it has to go District-wide,
first off. Everything in 57 is critical.
THE COURT: All right.
MR. HARRISON: 58 -- first off. on 57 he says
that we've somehow given up (f). If he can show us that,
174
even informally in writing we've done it, we do. I don't
recall it, and Ms. Ponzoli doesn't recall giving up 57(f).
If we've done it, we'll not go back on our word, but we
have to see that we've done that.
58, ell documents related to temporary operating
permits -- your Honor, DER sure thought their structures
had to be permitted once, because they put a temporary
operating permit on them in '79, and they never met water
quality standards. It expired, and they never tried to
renew it. They know exactly what temporary operating
permit means. If they don't, their scientists do. If
their scientists see it. we'll get some response. If
they've already responded, great.
59, addressing water quality violations -- there
are such documents. We've appended a document to the
opposition to the motion to dismiss where DER says that
discharges are violating three specific water quality
violations -- the biological diversity impact, violating
the conversion of flora and fauna, and I think it was the
dissolved oxygen violation.
There are such documents. If they have internal
documents where their scientists have told them that these
discharges or this water is violating water quality
standards, we have a right to those. This isn't a criminal
case. There's no Fifth Amendment here. If those documents
175
exist, we have a right to see them. They're central to our
case.
We will not give up anything in 57, 58, or 59.
If they want us to try to narrow 57 to explain it, fine,
but let the scientists look at it first. The scientists
might not have near as much trouble understanding those
terms as Mr. Jackson has had or supposedly.
THE COURT: All right. Let's talk for a minute
then, if you have a comment, Mr. Jackson, about No. 50,
which is also --
MR. JACKSON: Which one, sir?
THE COURT: 50, I believe. Is that it, Mr.
Harrison?
MR. HARRISON: Let me see. 50?
MR. JACKSON: Oh, yeah.
MR. HARRISON: Oh, the lease and the --
MR. JACKSON: Well, with respect to those, again,
to the extent that there have been environmental problems
either in the Loxahatchee National Wildlife Refuge -- and
that's Water Conservation Area 1. That's the oblong area I
showed you a little while ago, and that's the area that's
covered by the lease. To the extent that there have been
environmental problems related to water quality in that
area, those were included in the documents that we produced
under Water Quality and Environmental Sciences, which is
176
the Biological Department.
We don't have a division or a department that
deals with the lease. We don't have a division or a
department that just deals with WCA-1. We just pump water
into and out of it. The Fish & wildlife service runs it as
a wildlife refuge. And we have looked both in the Legal
Department -- we have expressly looked in the Legal
Department for all of the documents that we have that
relate or could relate to the Loxahatchee lease, and we
have looked in all of the environmental areas for all
documents that could relate to the water quality problems
in WCA-1.
Again, I think that covers ninety to ninety-five,
perhaps ninety-nine, percent of everything that the
District has with respect to that lease -- the lease was
signed in 1951, by the way -- or it certainly covers
everything that's most likely to be relevant in this case,
because it deals with either our legal position on the
lease or it deals with environmental problems that have
been created by the management of Water Conservation Area
1.
The MOA, the same thing. We looked in the Legal
Department, and frankly we haven't found very much. Nobody
paid much attention to these documents, because we never
thought they were the sorts of things you could get dragged
177
into a lawsuit over. We didn't regard them as being
binding contracts in that sense, so the Legal Department
hasn't really had a lot to do with them, but we looked
there because that's where you might find, I suppose, a
memo that says, "These are binding leases, and we better
live up to them."
But, again, with respect to environmental
problems, which is what the case is about, we looked in the
environmental departments. We found a fair amount of
information about the MOA, especially in the Water Quality
Division; and that was all turned over.
Again, the only objection is to going through the
entire District to try to find every document that might
relate to either of these two contracts.
MR. HARRISON: We're not asking for that, your
Honor. We're simply asking that the Water Management
District, as a defendant, be responsible as a whole for
complying with the requests; and the easiest way to do it
is to simply circulate this request to the division heads
and let the division heads, from our request, tell Mr.
Jackson, in a memo or whatever, "No, we've given you
everything we have," or, "We haven't." It is not up to Mr.
Jackson to make that decision.
I have never in my life seen a case that says the
defendant is not responsible as a whole for the documents
178
production. You can't simply isolate -- now, they may have
a Recreational Department that supervises the gym.
Obviously, it would be foolish to send this thing there,
and we wouldn't care about that.
But, it's not up to him to decide which division
may or may not have documents, just like it's not up to Ms.
Ponzoli or I to decide that, "Well, we don't believe that
the Department of Interior will have any, and we're not
going to send it there," or "Corps of Engineers, just do
your Planning Department. Don't send it anywhere else."
We sent it to the Corps of Engineers and said, "Circulate
this request. If anyplace in that building in Jacksonville
has responsive documents, we want them listed, and you
start getting them together."
All we're asking for, one, is what we've agreed
to do and what -- two, what the law has always required to
do; and three, something that virtually is no burden
whatsoever. It means their department heads are going to
have to sit down with this, take fifteen minutes and read
it, and say, "Mr. Jackson, we have provided the answers,"
or "We didn't see this. We didn't realize they wanted
detention and retention. Yes, we have documents on that."
That's all we're asking. There's no burden, and we have an
absolute right to at least that type of production.
We're not asking that division head to go scour
179
all of his filing cabinets, but let's vet the people that
know their files -- the division heads know what they have
in their files -- to tell us these documents don't exist,
not the attorneys trying the case.
I'm sorry to be insistent on it. It's a
fundamental fairness idea. I just can't conceive of a
ruling that says they're not responsible as a defendant
District-wide.
THE COURT: All right. My notes reflect that we
have at least discussed -- touched on all of the specific
items that the Government has asked here to -- the court to
make a ruling on. Anything else? And I do want to wrap
this up in the next five or ten minutes, but -- or sooner,
but --
MR. JACKSON: Well, I can do it in one minute.
And just on that last point, I don't think that's an
accurate statement of the law; and we -- in our brief, the
reply briefs that we filed back in June or July, when we
were going through this initially, we laid out what we
thought the legal standard was. It is basically -- it
doesn't say anything about whether lawyers can write
summaries of document requests and provide them to division
heads. It just says you only have to look where you're
likely to find it. And we cited cases where people were
being requested to look in branch offices all over the
180
country where documents might be but weren't likely to be.
And we're just asking -- we think it's a very
clear legal standard, and we think that the court should
impose it here, and we'll be happy to live with it. I
don't see any point in beating it this morning, because I
don't think we're ever going to reach an agreement between
the parties. We'll just stand by what we've said in our
briefs.
THE COURT: All right.
MR. JACKSON: Thank you, your Honor.
THE COURT: Thank you. Anything further from
either side?
MR. HARRISON: Your Honor, just one thing. I
would specifically again want Mr. Jackson to write down an
order that requires them to produce the executive staff
meeting minutes.
THE COURT: Well, we have --
MR. HARRISON: And that is very specific.
And regarding the forty documents we failed to
provide them at the Park, as I alluded to earlier this
morning -- and I know you're drinking through a fire hose
right now with all of this -- but, it was Inadvertent.
Either the Park failed to send it to the copier, either a
whole box or a file. It's forty documents out of some
three hundred and seven thousand that have been produced.
181
Mr. Shite, I don't know if he's found them, but
yesterday he was down there looking for them; and we're
going to get them to a copier, and this time it isn't going
to take four months. That was a logistical problem for
which we apologize. We beat the Park over the head on it.
They wanted them in-house, as scientists are; and they've
had trouble with their scientists as well. Scientists
don't quite understand the pain of being in a litigation
We finally got them. They sent them out for
production, and they're going to send them out for
production at any other time. But, that was a logistical
problem that was our fault. It was logistical, although it
wasn't our fault as far as intentional, but it was and we
apologize and it's not going to happen again.
The hotel -- I just simply have to dispel one
myth. The hotel was different. We had a legitimate right.
Picture yourself as a trial lawyer, sitting in a hotel
room, not at the file cabinets. They bring boxes from two
divisions, Executive Offices and Environmental Sciences.
All of a sudden you get -- and all -- and the first box you
set isn't all Environmental Sciences, and the second one
isn't Executive Division.
If you were in the office, what you would do is
you would take a chronological order. You'd take File
Cabinet No. 1, take that file drawer of this person, and go
182
through them old to new, old to new, so, as a trial lawyer,
you can maintain a train of thought. If you start getting
boxes from different ages out of different divisions, it
blows it all. There's no way your bait-stamping makes
sense. And we have seemingly resolved that with a tracking
system.
As long as the court orders that we continue to
inform each other where they are and produce them in a
logical order -- all of those divisions -- we'll agree to
that hotel, and we won't reserve that to be open for the
future. And thank you.
THE COURT: All right. Well, I have sat, Mr.
Harrison, in conference rooms -- in hotel rooms like that;
and quite frankly, that's one of the reasons why I'm
sitting here now, rather than sitting there.
MR. HARRISON: We like the hotel room. It is
comfortable. We just want the documents.
THE COURT: No, I'm talking about what a task
that is to go through documents; and on the other hand, I
do see a need sometimes to produce documents in that
fashion. So, because that is not presently before me and
because those hours have already been spent, that's not
something that I have to make a decision on.
I will be probably today entering an order that I
see as appropriate here and probably a separate scheduling
183
order that sets the dates that I think are appropriate here
for discovery, which I think is within my order of
reference on the case. I will not be setting a trial date
in the case. That's something that Judge Hoeveler will be
doing.
In addition, we have local Rules here, which I'm
sure Mr. Harrison is familiar with and probably Mr. Jackson
is becoming familiar with, that set out various other
requirements for pretrial dates and so forth, which
probably would be incorporated into that scheduling order
or a separate order of some type.
But -- and also. because I will be sending this
out quickly, I think that you'll see where to begin and
where to continue. I'm not much for speeches, although
I -- we're all here working, being paid by the public --
being paid by the public; and so, to the extent that this
can be that these matters can be worked out with the
attorneys, please do so; and to the extent that you need
the court's involvement. I'm here and I will be involved in
this case as needed in the matter
Mr. Jackson, welcome to the Southern District of
Florida, if you haven't so been welcomed; and I also
recognize that you're outside this district and any time
that you come in you have to come in from Washington. Is
that correct?
184
MR. JACKSON: Yes, sir. And we will do
everything we can to live by the Rules of the local
district.
THE COURT: All right. I'm sure that you --
MR. JACKSON: We've been studying them since we
first started on the case.
THE COURT: The District does not have local
counsel, or does it?
MR. JACKSON: Your Honor, we have in-house
counsel who's been representing as local counsel in the
THE COURT: All right.
MR. JACKSON: He's not here today, but --
THE COURT: Okay
MR. JACKSON: -- we can bring him if --
THE COURT: All right. Well, that is a factor,
of course, to consider, too, in determining whether
telephone conferences are going to be permitted and to what
extent they would be permitted.
All right. Well, then, if there's nothing
further, we're adjourned.
THE CLERK: All rise.
(Court adjourned.)
185
I HEREBY CERTIFY that, to the best of my knowledge, the
foregoing pages, numbered 1 through end including 184, are
a true transcription of the electronic recording made on
tapes 9OD-44 through 9OD-47 in the above-stated matter.
__________________
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Transcriber
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