In the Matter of:

Upstream Addicks and Barker (Texas) Flood-Control

Reservoirs v. USA

July 24, 2018

Condensed Transcript with Word Index

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs v. USA 7/24/2018

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1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS 1 APPEARANCES (CONT.):
2 2 ON BEHALF OF THE PLAINTIFFS (IN RE UPSTREAM ADDICKS AND
3 IN RE UPSTREAM ADDICKS ) 3 BARKER (TEXAS) FLOOD-CONTROL RESERVOIRS):
4 AND BARKER (TEXAS) ) 4 VUK VUJASINOVIC, ESQ.
5 FLOOD-CONTROL RESERVOIRS, ) 5 VB Attorneys
6 Plaintiffs, )Master Docket No. 17-9001L 6 6363 Woodway Drive, Suite 400
7 vs. ) 7 Houston, Texas 77057
8 UNITED STATES OF AMERICA, ) 8 (713) 224-7800
9 Defendant. ) 9 vuk@vbattorneys.com
10 ------------------------------) 10
11 11 ON BEHALF OF THE DEFENDANT:
12 Courtroom 9C 12 WILLIAM SHAPIRO, ESQ.
13 Bob Casey United States Courthouse 13 U.S. Department of Justice
14 515 Rusk Street 14 Environment & Natural Resource Division
15 Houston, Texas 77002 15 501 I Street, Suite 9-700
16 Tuesday, July 24, 2018 16 Sacramento, California 95814
17 9:58 a.m. 17 (916) 930-2207
18 Discovery Conference 18
19 19
20 20
21 BEFORE: THE HONORABLE CHARLES F. LETTOW 21
22 22 ALSO PRESENT:
23 23 Rand Nolen, Esq., Downstream Co-Lead Counsel
24 24
25 Elizabeth M. Farrell, CERT, Transcriber 25

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1 APPEARANCES: 1 P R O C E E D I N G S
2 ON BEHALF OF THE PLAINTIFFS (IN RE UPSTREAM ADDICKS AND 2 - - - - -
3 BARKER (TEXAS) FLOOD-CONTROL RESERVOIRS): 3 (Proceedings called to order, 9:58 a.m.)
4 DANIEL H. CHAREST, ESQ. 4 THE COURT: The case before the Court this
5 EMERY LAWRENCE VINCENT, ESQ. 5 morning is the Upstream Addicks and Barker Flood Control
6 Burns Charest, LLP 6 Reservoir cases. The number is 17-9001.
7 900 Jackson Street, Suite 500 7 Mr. Irvine, would you introduce yourself as
8 Dallas, Texas 75202 8 counsel for the group of Upstream Plaintiffs and
9 (469) 904-4550 9 introduce your colleagues as well.
10 dcharest@burnscharest.com 10 MR. IRVINE: Yes, Your Honor. Charles Irvine,
11 lvincent@burnscharest.com 11 co-lead counsel for liability and discovery issues. I
12 12 have with me today Daniel Charest, also co-lead counsel
13 CHARLES IRVINE, ESQ. 13 for --
14 Irvine & Conner, LLC 14 THE COURT: Yes, welcome, and we thank Mr.
15 4709 Austin Street 15 Charest for his help earlier today.
16 Houston, Texas 77004 16 MR. IRVINE: And Armi Easterby from Williams
17 (713) 533-1704 17 Kherkher, co-lead counsel on jurisdiction --
18 charles.@irvineconner.com 18 THE COURT: Yes.
19 19 MR. IRVINE: -- sorry, on liability.
20 EDWIN A. EASTERBY, ESQ. 20 Larry Vincent, co-lead counsel for
21 Williams, Kherkher, Hart, Boundas, LLP 21 jurisdictional issues.
22 8441 Gulf Freeway, Suite 600 22 Vuk Vujasinovic, of counsel for jurisdictional
23 Houston, Texas 77017 23 issues.
24 (713) 230-2200 24 MR. VUJASINOVIC: Good morning, Your Honor.
25 aeasterby@williamskherkher.com 25 THE COURT: Welcome.

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1 MR. IRVINE: Thank you, Your Honor. 1 questioning during the deposition -- so this is all like
2 THE COURT: And, Mr. Shapiro? 2 deposition lawyer logistics that we can -- in terms of
3 MR. SHAPIRO: Good morning, Your Honor. Bill 3 topic IDs. Is that fair?
4 Shapiro -- 4 THE COURT: Well, one of the questions the
5 THE COURT: And thank you for letting us in the 5 Court would have, especially for the deposition of Mr.
6 courtroom. 6 Thomas, is how many counsel get to examine him, but we’ll
7 MR. SHAPIRO: You’re welcome, Your Honor. Bill 7 cover that in due course.
8 Shapiro for the United States. 8 MR. CHAREST: Very good. And then going from
9 THE COURT: Thank you. And you’re here by 9 my list here because I have one as well, I was going to
10 yourself this morning. 10 give the Court an update on just our discovery progress
11 MR. SHAPIRO: I am. 11 to date and then, also, there’s an issue around the --
12 THE COURT: That’s brave of you. 12 one of the test properties of Plaintiffs, Mr. Mario
13 MR. SHAPIRO: We’ll find out if that was a good 13 Mitchell.
14 idea in a few minutes. 14 THE COURT: Mitchell?
15 THE COURT: You’ll be fine. 15 MR. CHAREST: Mitchell. Where he’s asked to be
16 The Court has a list of topics, but let me 16 dismissed without prejudice and that’s been opposed by
17 cover my topics and then the parties can add to them. 17 the Government. I just want to kind of touch base with
18 First would be the identification of experts on the 18 the Court on that.
19 Upstream side only. And I take it the parties have done 19 And I guess one more issue is as pertains to
20 that, but let’s talk about that for a few minutes. 20 the scope of some discovery by the DOJ specifically as to
21 Then discovery from owners of test properties, 21 post-event evaluations by the Corps and in terms of
22 and I hope that has been completed. Arrangements for -- 22 topics, that’s a topic. I can get into it when the Court
23 or answers for interrogatories, I want to find out where 23 is ready to do that. Those are my additional topics,
24 those stand. Then the next topic would be document 24 Your Honor.
25 discovery after the electronically stored information has 25 THE COURT: All right, thank you. I appreciate

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1 been produced. 1 that.
2 The fifth topic the Court would propose would 2 Mr. Shapiro?
3 be depositions of the 30(b)(6) designees, and the Court 3 MR. SHAPIRO: I have nothing further, Your
4 has in hand the notice from the Plaintiffs’ side. 4 Honor.
5 The sixth topic would be the electronically 5 THE COURT: All right, thank you.
6 stored information and the production. We talked earlier 6 Let’s start with the identification of experts.
7 about rolling production. I’d like to talk about that a 7 When we left it, if the Court recalls correctly, on the
8 little more if we may. 8 12th during our telephonic discovery conference,
9 And then, finally, Mr. Long’s -- the seventh 9 Plaintiffs’ counsel had just made the identification of
10 topic -- I think it’s the seventh -- is Mr. Long’s text 10 their experts the day before. Have all the experts who
11 messages. 11 are proposed by the parties been identified? Mr.
12 Any -- I’ll give you a minute to digest that. 12 Charest?
13 Any additional topics, Mr. Irvine, Mr. Charest, Mr. 13 MR. CHAREST: For the Plaintiffs, yes, Your
14 Easterby? 14 Honor.
15 MR. CHAREST: We have one line of questions 15 THE COURT: For Defendants?
16 related to -- it relates to privilege logs and ESI. 16 MR. SHAPIRO: Yes, Your Honor.
17 Basically, when the Court says the ESI production should 17 THE COURT: How many do we have?
18 be completed by the date set out, does that include 18 MR. SHAPIRO: Looking at our list, Your Honor,
19 privilege logs or not? I just want to understand what we 19 I think we identified 15 individuals.
20 can be expecting. 20 THE COURT: Fifteen? I understand some of
21 Some logistical issues around attendance at 21 those related to what I would think of as damage issues.
22 depositions for leadership, representatives of witnesses 22 Is that correct, Mr. Shapiro?
23 and nonleadership, just to get everyone in the same room. 23 MR. SHAPIRO: Well, we would not characterize
24 There’s a lot of people that want to be there and we want 24 them as damages; we would characterize them as relating
25 to get the Court’s direction on that a little bit. Also, 25 to the severity of the impact. But, yes, some of the

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1 individuals -- for example, we have identified an 1 need to identify another expert, I mean, we’d want to
2 appraiser, we have identified a cost estimator. Those 2 reserve that ability.
3 individuals would testify presumably about issues related 3 THE COURT: Well, I’m sure that’s so. Have you
4 to the severity of the impact. 4 identified, Mr. Shapiro, experts who would testify
5 THE COURT: Well, under Arkansas Game & Fish, 5 specifically and solely on rebuttal rather than your
6 severity is definitely an issue. So you’re right on that 6 defense case-in-chief?
7 score. But as long as we don’t get into damage details, 7 MR. SHAPIRO: It would depend on what
8 that’s fine. 8 Plaintiffs end up providing to us, but we’ve talked to a
9 MR. SHAPIRO: We don’t intend to put on a case 9 number of individuals and should there be something
10 on just compensation. 10 unexpected in Plaintiffs’ submission that isn’t covered
11 THE COURT: All right, thank you. 11 in our initial round of expert reports. I would say we
12 Mr. Charest? 12 have certainly talked with other potential experts.
13 MR. CHAREST: I’m trying to get a number, Your 13 THE COURT: Let me ask if you could identify,
14 Honor, but I think your observation is right. There were 14 please, the topics that -- just generally, that you think
15 several that were listed as -- that were appraisers and, 15 your experts will address.
16 in our view, those would go towards, if necessary, if 16 MR. SHAPIRO: I’d be glad to. Your Honor, the
17 required to show impact, you know, and that sort of 17 case involves hydrology, so we have some hydraulics
18 thing. But not our ambition -- our instruction from the 18 experts. Those individuals will be looking at what
19 Court and also our view of the case is that we aren’t 19 actually happened during the storm, as well as perhaps
20 doing granular-level details on damages here. 20 looking at some other scenarios as the Court may have
21 THE COURT: Could you identify, Mr. Charest, 21 anticipated. We’ve had more than one hydrologist, as I
22 the topics that are proposed to be covered by Plaintiffs’ 22 believe Plaintiffs do, to address those questions.
23 experts? I just -- if I recall correctly, on the 12th of 23 I suspect that that will be the most important,
24 July, you identified nine. 24 perhaps, form of expertise the Court will hear during
25 MR. CHAREST: Okay. I’ll take your word for 25 trial is the hydrology experts. But we do intend to call

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1 the number. 1 experts on other topics as well. So I mentioned we
2 THE COURT: Well, that happened on the 12th. 2 have a cost estimator. And the cost estimator would look
3 But whether that’s a current number or not, that is -- 3 at -- would address primarily the severity of the
4 MR. CHAREST: Well, the disclosure -- the 4 impacts, and that would be supported as well by, we
5 disclosure was that, so I don’t have it in front of me. 5 anticipate, an appraiser and perhaps an economist, both
6 You caught me a little unawares that we’d be talking 6 of whom we have listed on our list.
7 about this topic. So I’ve asked my paralegal to shoot to 7 Your Honor, those topics could also go to a net
8 me the list, and if we could defer this topic until 8 benefits type argument and we would expect it would be a
9 later, I’d be able to read from that list with better -- 9 similar type analysis from those individuals, the
10 and give you a better answer. 10 hydrologists and the cost estimators.
11 THE COURT: All right. Let me ask just -- 11 I believe those are the big topics. I mean, we
12 we’ll do that. We’ll come back later. 12 certainly have other experts as well, but those are what
13 MR. CHAREST: Sure. 13 we would anticipate would be the most important for the
14 THE COURT: But let me just ask for the moment, 14 Court’s resolution.
15 are the parties satisfied that there’s a match in the 15 THE COURT: Thank you, Mr. Shapiro.
16 sense of the topics to be addressed to put forward 16 Mr. Charest, do you have the information now or
17 Plaintiffs’ case and the defense case? 17 shall we come back to that?
18 MR. CHAREST: Yes. I think so, yes, Your 18 MR. CHAREST: I’ve got enough to be conversant,
19 Honor. 19 sir.
20 MR. SHAPIRO: I would hedge that a bit. I 20 THE COURT: All right. Let’s do it.
21 guess it remains to be seen. We don’t want to give up 21 MR. CHAREST: All right. So we have an expert
22 our right to put on a rebuttal expert designation should 22 on hydrology, Philip Bedient from Rice University. We’ve
23 that be necessary. In addition, Your Honor, as we 23 got an expert on meteorology, Jan Null. We’ve got an
24 continue to collect information -- I don’t have this 24 expert on climatology that we may or may not use.
25 expectation at this point, but should we decide that we 25 THE COURT: I’m sorry, the latter was?

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1 MR. CHAREST: Climatology. 1 impact-related experts, and I appreciate that the focus
2 THE COURT: Yes. 2 really is on the storm-related issues, but we have to
3 MR. CHAREST: That we may or may not use, 3 show impact as well. So we’re doing severity.
4 Michael Mann. Those pertain, in my view, towards the 4 THE COURT: Thank you.
5 storm and the event, okay? And then we have surveyors, 5 If I recall correctly, there was a tax day
6 the names I don’t have, but, you know, getting elevations 6 storm in 2016. Will the experts, the hydrologists and
7 and, you know, trying to tie the height of the pool to 7 the meteorologists and the climatologists address that
8 the people’s homes, that type of thing. 8 storm as well as the hurricane or tropical storm that was
9 And then in terms of impact, we have Randy 9 directly at issue -- that is directly at issue?
10 Bell, who will be doing value issues both specific to the 10 MR. CHAREST: Well, it’s a little hard to say
11 homes, but also kind of pan-reservoir if you would, 11 exactly what they’ll address to be fair, at this point.
12 please, across the reservoir. 12 But they will take into account data from that event, I
13 THE COURT: One of the questions I was going to 13 think, as part of their hydrology study if that’s the
14 ask Mr. Shapiro, but hesitated to do so, was whether or 14 Court’s question.
15 not the cost estimators or appraisers would focus 15 THE COURT: Yes.
16 primarily on real property or also address personal 16 MR. CHAREST: Yes, sir.
17 property. 17 THE COURT: All right, thank you.
18 MR. CHAREST: Our folks are -- my plan for the 18 Mr. Shapiro, does that square with your
19 test properties is to have some sort of valuation of 19 understanding and do you have anything to add insofar as
20 both. But in my mind, once you get to a certain quantum, 20 the Government’s experts?
21 it’s severe enough. Do you see what I mean? 21 MR. SHAPIRO: Your Honor, I neglected to
22 THE COURT: Yes. 22 indicate we also have a meteorologist as well. We may
23 MR. CHAREST: And so that -- it won’t be -- 23 have an aerial photography expert to provide some
24 just so the Court knows, we have spreadsheets that ask 24 photographs about how the land has changed and other
25 questions about every salt and pepper shaker, every frame 25 issues.

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1 in your living room, I mean, that type of thing. That’s 1 One thing that was triggered by what was said
2 -- they may be compiling that, but it would be used as 2 is that we’re hearing now that Plaintiffs do intend to
3 input data for some sort of overall estimate that tells 3 address damage to not only the real property but personal
4 you, on a much less granular basis, what the impact was. 4 property. We have run into -- I’m sorry?
5 THE COURT: Right. As long as we focus on the 5 THE COURT: Hopefully -- hopefully in general
6 general topic of severity, we’re fine. 6 terms, but go ahead.
7 MR. CHAREST: Yes, sir, and that’s exactly my 7 MR. SHAPIRO: That’s exactly right. But we
8 ambition. So, Mr. Bell will do that and we have an 8 have run into issues where we have requested information
9 expert that’s going to look at what we call flat work, 9 from Plaintiffs and that has not been provided to us. So
10 slab impacts and roadways and driveways because that’s 10 prior to -- we have undertaken numerous depositions that
11 another area that we think that was impacted by or a way 11 we’ll talk about in a few minutes. But prior to those
12 to show impact as well. And I think that’s the -- I 12 depositions, of course, we asked for certain documents to
13 think that’s generally it. I may have left one or two 13 be provided and those have, for many of these, not been
14 off, but that’s -- 14 provided in a timely fashion or not been provided at all.
15 THE COURT: That expert presumably would cover 15 And it puts us in an impossible situation because while
16 infrastructure as well, just generally. 16 Plaintiffs are in a position to address issues such as
17 MR. CHAREST: Yes, sir. 17 personal property, that -- unless they give us that
18 THE COURT: Because if I recall correctly, 18 information as part of the discovery process, we’re
19 there was one test property that was either an airport or 19 severely prejudiced by not getting that information.
20 facilities attendant to an airport. 20 THE COURT: With that introduction, let’s shift
21 MR. CHAREST: Correct, that’s right, sir, West 21 to discovery from the owners of test properties.
22 Houston Airport. 22 MR. CHAREST: Yes, sir.
23 THE COURT: All right. 23 THE COURT: Mr. Charest?
24 MR. CHAREST: So that’s my view. So we have, 24 MR. CHAREST: Well, my response to that is
25 again, kind of the storm-related ones and then the 25 whatever our experts are going to rely on, the Government

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1 will certainly have it and probably already has it, in
2 fact. This came up on the phone conference, whatever it
3 was, 10 days ago, but the issues that they’re asking for
4 are like the cost to replace a washing machine, I mean,
5 very -- and not just like, you know, tell me what it was,
6 but show me the receipt, you know.
7 And so they’re -- and this is where that -- the
8 point I made before where if I tell you I lost everything
9 in my living room, I don’t think I need to go and tell
10 you the cost of my couch and the cost to replace my couch
11 and the age of my couch at the time it was flooded. It’s
12 my couch in my living room. You know what I mean?
13 And so that’s, I think, part of the disconnect
14 is if you look at the transcripts of these depositions,
15 it’s very much, you know, when was your last improvement,
16 did you have hardwood floors, when did they get done,
17 when did -- you know, how long ago and what was the cost
18 of that. And to my mind that’s damages, okay, fine, but
19 that’s not what we’re dealing with. And so it’s that
20 level of detail that I think we’re having the pushback
21 on.
22 THE COURT: Well, let’s go into this slightly
23 more. It might be worthwhile to do so. Is cost of
24 repair involved in any of these depositions? Are these
25 properties being repaired or restored?
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1 MR. CHAREST: So that’s -- I can’t answer that
2 uniformly because there’s different statuses of the
3 different properties. But by and large most of the
4 properties are being repaired and being restored. When
5 we have information about the cost to repair, we have
6 been providing it. I do believe that that is part of the
7 severity test because that’s part of the injury, the harm
8 that was done to the people. That -- my understanding is
9 it has been provided, that information.
10 THE COURT: Has insurance come up as an issue
11 in this respect?
12 MR. CHAREST: Whether you have insurance and
13 how much you got paid out has been issues in discovery,
14 yes, sir.
15 THE COURT: Mr. Shapiro?
16 MR. SHAPIRO: That’s correct. We have sought
17 as much detail as we can obtain in order to address the
18 questions that we think are going to be relevant for the
19 Court. And if Plaintiffs are claiming damage to personal
20 property, we need to know that information.
21 The problem we’re having, Your Honor, is really
22 twofold. One is that we have asked for this information
23 prior to the depositions so that we can question the
24 landowners in an appropriate way and also get the
25 information to our experts in order for them to do their
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1 analysis. In some instances, we’ve been provided some
2 information, but immediately before the deposition. So
3 this -- there are depositions going on right now, one of
4 the reasons I’m flying solo here today.
5 We received another load of documents related
6 to that deponent yesterday. That puts us in a real bind.
7 It creates an enormously inefficient system and that has
8 happened regularly with these fact depositions. That’s
9 one problem.
10 The second problem is there are some
11 depositions where -- we have taken where it’s become
12 clear that the landowners have not been asked for
13 relevant information prior to the deposition or if there
14 is -- and it’s sometimes clear that there are responsive
15 documents. We followed up after the depo -- many of
16 these depositions and in some cases have been provided
17 documents after the time, but in some cases, we’ve not
18 received any documents.
19 So -- and to give you an example, we took the -
20 - Plaintiff Stewart’s deposition and after the
21 depositions we transmitted a letter to Plaintiffs’
22 counsel asking for some additional information. That was
23 back in the end of June and we’re still waiting for a
24 complete response for that deposition.
25 THE COURT: One of the problems is that this
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1 work might be being done in a continuing basis, that is
2 these properties might not be finished. I don’t know
3 that that’s so. Mr. Charest?
4 MR. CHAREST: Well, that is true, but I think
5 that the issues, in fairness to Mr. Shapiro, that he’s
6 asking about are events that have happened in the past,
7 before. So that’s not a matter of, you know, we just got
8 this bill -- an invoice from a repairman and here it is.
9 It’s a matter of, you know, these are human beings and
10 they’re not professional litigants, they’re not
11 corporations. We are working very hard with them to get
12 the information, but it’s not like they have litigation
13 experience and know how to do a document search. I mean,
14 we’re doing very much the best we can.
15 I think being -- frankly, the issue we may have
16 is that we’re being too producing of granular details,
17 making the Government think that all the granular details
18 should be there. If we had just been more firm about
19 what we don’t produce, it would have been more clear.
20 But that’s just a tactical issue.
21 I’d point out this, and I’ll say it on the
22 record, if we produce something that the Government says,
23 oh, this is very important, we need more deposition on
24 this topic to clarify this testimony or whatever, we will
25 put our people up again if we agree. If we don’t agree,
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1 they can ask the Court and then we can have it. I mean,
2 this type of thing happens. This is how discovery works.
3 We do our best and we get to the end. But, I mean, I’m
4 not -- I’m very confident that if the Court stops and
5 looks at what we’ve done and the efforts we’ve put
6 forward, you’d be happy with us.
7 MR. SHAPIRO: If I could respond to --
8 THE COURT: Well, happily, we -- I’m sorry, Mr.
9 Shapiro, go ahead.
10 MR. SHAPIRO: I’m sorry, Your Honor. If I
11 could just respond to that last point just briefly. So
12 to give the Court an update, we had -- according to my
13 notes, and this could be off by a few, we’ve taken 22
14 depositions, landowner depositions. That’s 10
15 Downstream, I believe, and 11 -- 10 Upstream and 11
16 Downstream. These are the same attorneys that are
17 working both of these cases. That’s the way we have to
18 do it. We don’t have an army of law firms at our
19 disposal at the Department of Justice.
20 So we’ve taken 22 depositions. We have quite a
21 few left to go. That doesn’t include third party
22 witnesses; that does not include defending our own fact
23 witnesses and the upcoming 30(b)(6) witnesses, as well as
24 preparing the expert discovery. We can’t -- we do not
25 have the time in the short expedited schedule that the
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1 didn’t get to this one. But my understanding from the
2 Court and from the scheduling order is we are not going
3 to get into the granular details of how much all these
4 items cost in the liability and jurisdictional phase of
5 this case.
6 They have the photographs from the house. The
7 witnesses testify about it. We had a deposition last
8 week of a guy -- his stepdaughter had five feet of water
9 in her house and he literally burst into tears during his
10 deposition because when they asked him, let’s talk about
11 everything that was damaged, he said, everything was
12 damaged with the exception of two speakers.
13 So it’s a little bit frustrating for these
14 Plaintiffs to be asked all these details about damage
15 when they have five feet of water in their house and it
16 seems like the severity of the interference in that case
17 would almost be conceded. But that’s what we’re dealing
18 with.
19 And so, Your Honor, as Mr. Charest is saying, I
20 believe we’re providing the United States with a fulsome
21 discovery on liability and on jurisdiction, but when it
22 comes to how much would be owed in just compensation, we
23 believe that’s for the second phase of the case.
24 THE COURT: It is. Most of us who are
25 homeowners or who have even apartments or that sort of

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1 Court has ordered in this case to go back to the well and 1 thing could not tell you when particular items of
2 take multiple depositions of the same landowners after 2 furniture or furnishings were purchased or what they cost
3 they eventually give us the documents we’ve requested. 3 because we just don’t save that particular information
4 That’s just not practical. 4 unless there’s an artwork or something like that. And
5 MR. CHAREST: I am not suggesting we should be 5 I’m sure that, Mr. Shapiro, you’re running into that with
6 doing that. My point is the stuff that they say hasn’t 6 these property deponents. They just don’t know; they
7 been provided that is so relevant isn’t that important. 7 don’t have any records.
8 If it ever was really that important, we would sit the 8 MR. EASTERBY: Or the records were destroyed in
9 person down for an hour or whatever. If they had to have 9 the flood. Like Mr. Stewart testified about how his
10 the testimony on it, we would give it to them. I mean, 10 filing cabinet in the garage, bottom drawer of course,
11 but it’s just not. So that’s why I feel very comfortable 11 was inundated with water. So those records were
12 saying that. 12 destroyed.
13 THE COURT: Let’s focus -- I’m sorry, go ahead. 13 THE COURT: Right.
14 MR. EASTERBY: Your Honor, I’d like to -- Armi 14 MS. EASTERBY: Anyway, Your Honor, we are
15 Easterby, I’d like to address counsel’s comment about the 15 giving them what they need to prepare for the liability
16 Stewart deposition and the request for information. I’m 16 and jurisdiction case. I’m not saying we’re getting them
17 looking at the letter that the Department of Justice sent 17 what’s necessary for the damages phase because we’re not
18 to us on that. The first item they ask for is a listing 18 there yet. That’s all I wanted to communicate.
19 of damaged property resulting from the events of Harvey. 19 MR. SHAPIRO: And, certainly, if the records
20 They want a list of items in each room and they want to 20 don’t exist, that’s a legitimate response, Your Honor.
21 get all the receipts for the purchases of those items, 21 We’re not asking any landowners to recreate any documents
22 the refrigerator, freezer, water heater, AC, heating 22 or like make up receipts from the purchase of their
23 unit, et cetera. 23 refrigerators.
24 Your Honor, I’ve been candid with them and I’ve 24 MR. CHAREST: No, please.
25 responded to, I think, five of these letters. I maybe 25 MR. SHAPIRO: What we’re asking for is what the

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1 Supreme Court says is a relevant factor in the liability
2 analysis, severity. That’s what we’re doing. And
3 Plaintiffs may not like it, but that’s what the Supreme
4 Court says we’re supposed to look at.
5 THE COURT: Let’s just comment from the Court
6 on one particular point. Please focus on the Upstream
7 cases first. I’m glad you’re doing the Downstream cases
8 as well in terms of the test properties. If the Court
9 recalls correctly, there are about the same number of
10 test properties on the Downstream side as there are on
11 the Upstream side. But the Upstream cases are scheduled
12 for trial two months earlier and so you ought to focus on
13 that.
14 MR. SHAPIRO: If I could respond to that.
15 You’re absolutely correct, Your Honor. I believe we’ve
16 had one other landowner that has dropped out. So it’s
17 not exactly the same number. And you’re right that our
18 trial in the Upstream is set before the Downstream.
19 However, we -- it’s my recollection that the Downstream
20 fact discovery ends before the fact discovery in the
21 Upstream case. So it’s impossible for us to focus on the
22 Upstream first because, in fact, we have to finish the
23 Downstream fact discovery first, which is a little odd
24 considering that the trial is set after the Upstream.
25 But the fact that -- unless I’m mistaken. The fact
26
1 discovery in the Downstream ends before the fact
2 discovery in the Upstream.
3 THE COURT: I apologize for smiling. If that
4 is so, I was not aware of that. I just don’t know.
5 MR. CHAREST: Your Honor, I mean, just -- I
6 think your point is exactly right. I mean, the notion
7 that the U.S. Government doesn’t have enough resources
8 to handle this case I find kind of funny when I
9 personally -- I mean, the part of the litigation that I’m
10 handling is generated by a line of credit that I’m
11 guaranteed with on my home, okay?
12 So, I mean, it’s a little frustrating to sit
13 there and say, oh, we don’t have the resources, look at
14 this army of lawyers. Yeah, that’s an army of lawyers
15 funded, okay? I mean, this is the U.S. Government. They
16 can’t sit there and cry about not having the resources.
17 I don’t want to hear it.
18 THE COURT: Well, that’s one of the reasons
19 we’re having these discovery conferences. We’ll deal
20 with these on a step-by-step basis.
21 Let’s talk about Mr. Mitchell or -- it might be
22 Mr. and Mrs. Mitchell. I don’t know. But the Mitchells
23 have a test property and --
24 MR. CHAREST: Mario Mitchell, Your Honor, yes,
25 sir. Mario Mitchell, is that the one?
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1 THE COURT: Yes.
2 MR. CHAREST: Yes, sir. So Mario Mitchell is a
3 test property selected by the Government over our
4 objection, as you may recall. We told --
5 THE COURT: I do not, I’m sorry.
6 MR. CHAREST: We described to the Government
7 both before they actually selected him, during their
8 selection and after their selection, that Mr. Mitchell
9 was, in our view, outside of the maximum extent of the
10 flood -- the actual flood waters.
11 THE COURT: Oh, was he one of the people -- I’m
12 going to get the direction wrong -- off to the side on
13 one of the tributaries?
14 MR. CHAREST: Yes, sir, that’s exactly right.
15 THE COURT: Now I remember.
16 MR. CHAREST: And we told the Government both
17 in, you know, sort of informal conferences and during the
18 hearings related to the test property selection, that’s
19 not in the area that we view this case to be about.
20 They, nevertheless, selected him. He has since decided
21 he wants to nonsuit his case or dismiss without
22 prejudice. The Government’s only objection to that point
23 is, oh, well, we’ve expended resources to defend the
24 case. Well, it’s like standing in front of the bus and
25 saying I would like to get hit, just go ahead and hit me.
28
1 I mean, it’s silly, you know.
2 The problem is with just nonsuiting -- with
3 dismissing with prejudice is that’s a whole different
4 evaluation. That would mean this person would have no
5 more claims going forward. Just because he doesn’t fall
6 within the type of claims that we think we -- this group
7 of lawyers think are appropriate doesn’t mean he may not
8 have other plans. He should just be dismissed without
9 prejudice and everybody walks away on that point and
10 there’s no harm anywhere.
11 THE COURT: Mr. Shapiro?
12 MR. SHAPIRO: I have to admit, Your Honor, it
13 is a bit strange to oppose a motion to dismiss. But we
14 do have a valid reason for this. It should be dismissed
15 with prejudice because we have expended -- I mean, we’re
16 in the middle now of preparing our expert reports. Our
17 experts have looked at this property, have evaluated it,
18 and to be candid, they have determined that it had
19 nothing to do with water backing up in the reservoir.
20 Now, Mr. Mitchell is one of several landowners
21 in that area who have or will sue us in this case.
22 THE COURT: Well, if the Court recalls
23 correctly there were more -- there were a couple of --
24 well, several dozens of them. I’m trying to get the --
25 60 or 70, I don’t know, maybe that’s too many. But I
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29 31
1 take your point. 1 MR. CHAREST: Yes, sir.
2 MR. SHAPIRO: The purpose of picking the test 2 THE COURT: And the Government had every right
3 properties, as Your Honor knows, was to pick individuals 3 to choose that as a test property. That does not mean
4 in various locations so that we could get, you know, a 4 that Mr. Mitchell’s claims are going to be adjudicated in
5 view of which Plaintiffs might have a legitimate claim, 5 this proceeding. What this proceeding is likely to do is
6 which Plaintiffs do not have a legitimate claim. It’s -- 6 delineate areas and deal with liability for the
7 based on our expenditure of resources on the Mitchell 7 delineated areas.
8 property, we have determined that that claim is not 8 MR. CHAREST: So we can just set his case aside
9 valid. It did not flood because of the reservoir. 9 from the test properties and move on? Is that the idea?
10 So that should be -- that should be presented 10 THE COURT: Well, I think the idea might be to
11 to the Court so that -- or it should be dismissed with 11 carry him forward as a test property, but not necessarily
12 prejudice so that -- because he does not exist in 12 have his liability adjudicated in this particular
13 isolation. He is one of many other plaintiffs -- 13 proceeding.
14 potential plaintiffs or actual plaintiffs that are in 14 MR. CHAREST: No objection from the Plaintiff.
15 that particular area. 15 MR. SHAPIRO: I’m sorry, Your Honor, I’m not
16 MR. CHAREST: The dismissal of his claim with 16 quite tracking what you’re saying. Should we -- are you
17 prejudice doesn’t advance the Government’s defense on any 17 suggesting that he voluntarily dismiss without prejudice,
18 other outside the pool party. It just doesn’t pertain to 18 but we still --
19 what he’s saying. Because -- just because someone wanted 19 THE COURT: I don’t have anything written
20 to dismiss and it was done with prejudice or not doesn’t 20 before me on that; I just have this discussion today.
21 mean that the other neighbors also had that -- I mean, 21 MR. SHAPIRO: I think that’s appropriate. If
22 he’s doing it on his own volition. It’s not like some 22 they can move and we can respond, then that’s probably
23 sort of adjudication, okay, number one. 23 the best way --
24 Number two, he’s still inside the design pool, 24 THE COURT: Yes, exactly.
25 by the way. 25 MR. CHAREST: Well, I think what I’m hearing

30 32
1 THE COURT: There is nothing about his 1 from the Court’s view about how the case would progress,
2 particular claims that prevents him from being designated 2 that may change his opinion as to whether to nonsuit
3 as a test property. He could have his claim dismissed 3 because, in effect, he -- if I’m understanding correctly,
4 voluntarily, but he could still have a test property that 4 the Court will draw a line around these are the cases
5 goes forward as part and parcel of the trial on 5 that are actually going to go to trial and he would be on
6 jurisdiction and liability. There is no problem with 6 the other side of that line.
7 that. It’s awkward because, in a sense, he might be a 7 THE COURT: Yes.
8 third party to the case and treated as such. 8 MR. CHAREST: Thank you.
9 MR. SHAPIRO: I wonder if that wouldn’t present 9 THE COURT: Okay. That was interesting. Not
10 the Court with an advisory opinion. If he’s no longer 10 totally unexpected given our discussions back in January
11 part of the case, if he does dismiss without prejudice, 11 and February.
12 his property would no longer be part of the case. 12 MR. CHAREST: Correct.
13 THE COURT: Both parties -- both sides have 13 THE COURT: Now, let’s talk about answers to
14 said that people in Mr. Mitchell’s situation are not 14 interrogatories and how the -- I think of it as the paper
15 necessarily part of the reservoir. We had this when we 15 discovery is going. I’m sorry to cover all these
16 were discussing the master complaint. 16 details, but, you know, that’s the purpose of these
17 MR. CHAREST: I would say that he is not in the 17 discovery conferences.
18 area we think have the good claims. 18 MR. CHAREST: Are you asking for our view on
19 THE COURT: Right. 19 how well they’ve done? Is that the idea?
20 MR. CHAREST: That’s -- you know. 20 THE COURT: Well, where we stand. You’ve put
21 THE COURT: He’s not part of the master 21 forward written interrogatories; the Government has put
22 complaint. 22 forward written interrogatories.
23 MR. CHAREST: Correct. 23 MR. CHAREST: Yes, Your Honor.
24 THE COURT: We understand that. We have 24 THE COURT: The Court obviously hasn’t seen
25 understood that for months in this particular case. 25 those. The Court doesn’t want to see them. But the

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1 Court wants to make sure that the parties are responding
2 to the interrogatories appropriately and in a timely way.
3 MR. IRVINE: Yes, Your Honor, I can speak to
4 that. So we’ve propounded interrogatories, a number of
5 contention interrogatories regarding their defenses in
6 the answer that they filed. Those have not been
7 answered. The Government objected saying that, you know,
8 this invades on the expert privilege, and to some extent,
9 I might agree with that. I think there are probably
10 factual issues they could have put into some of the
11 answers. But I think certainly contention
12 interrogatories regarding their defenses in their answer
13 are certainly appropriate for us to investigate
14 factually-wise and then wait for the expert --
15 designations in the expert disclosures to see what their
16 experts say about those defenses.
17 There were a couple of interrogatories that
18 weren’t -- those kind of contention interrogatories that
19 the Government answered to a certain extent. I can’t say
20 I’m fully thrilled or informed by their answers, but they
21 did answer.
22 We also propounded and intend to propound a
23 number -- a fairly large number of admissions -- requests
24 for admissions, and I think -- certainly our view on this
25 side of the table is that based on the answer that the
34
1 Government filed and based on the admissions, we’re
2 getting some very useful admissions that will certainly
3 help us narrow the scope of disputed issues at trial. So
4 we are working on this side to produce -- to serve
5 additional admissions on the Government, you know, to try
6 and, again, investigate what really are the disputed
7 issues.
8 THE COURT: You have -- or someone on the
9 Plaintiffs’ side had addressed the possibility of
10 stipulations and your request for admissions as a key
11 element in getting stipulations from both sides before we
12 go into trial. Is that correct?
13 MR. IRVINE: I think that’s the idea behind the
14 admissions is we’ll now see, you know, where we have, you
15 know, a common understanding. One of the issues we’ve
16 really kind of run up against both with the 30(b)(6)
17 topics and with some of the discovery is we have a
18 definition of the reservoir. The Government doesn’t
19 quite like our definition of the reservoir and I can
20 understand why. And so we’ve tried to come to some
21 common terminology that may not be the most simple
22 terminology. You know, we’ve been calling it a reservoir
23 as where the Government intends to pool water; the
24 Government wants to call the reservoir just the
25 government-owned land.
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1 And so I think we’ve come to some agreement at
2 least for the 30(b)(6) topics that we’re going to call it
3 the spillway design flood pool footprint. And if you
4 want to wrap your head around that terminology, you’re
5 going to become very familiar with it, Your Honor.
6 THE COURT: Well, that’s not a problem.
7 MR. IRVINE: It just rolls off the tongue, as
8 you can imagine. Even I stumble over it. But I think
9 we’re working through these issues with the Government so
10 that when we use a term, they know what we’re talking
11 about and their witnesses know what we’re talking about
12 and so we may have to rephrase some of our admissions and
13 some of our interrogatories to use that term so we’re not
14 running up into objections.
15 THE COURT: Let’s just put it this way: The
16 Court has a rudimentary understanding of drainage and
17 surface flows and things like that, and I have a
18 rudimentary understanding of hydrology. It’s not -- I
19 have a Bachelor’s in chemical engineering, as you
20 undoubtedly know, but that topic was not necessarily
21 covered. But I have other sources of information in my
22 background that lead me to have at least a really rough
23 understanding of these issues. So that’s not going to
24 bother me.
25 Now, let me ask -- before Mr. Shapiro addresses
36
1 this topic, let me ask whether or not, Mr. Irvine, from
2 the standpoint of Plaintiffs, have Plaintiffs responded
3 to the Government’s interrogatories appropriately?
4 MR. IRVINE: We believe so, Your Honor.
5 Obviously, there were some interrogatories that covered
6 legal issues that we served a common response on behalf
7 of all the Plaintiffs or one or two common responses.
8 And then there were individual responses that were
9 verified by the test property Plaintiffs. So I think in
10 terms of -- certainly, from my perspective, I feel like
11 we fully responded to their interrogatories. We got some
12 complaints back and some feedback, and to the extent that
13 we need to amend and update, we will do that.
14 THE COURT: All right. Thank you.
15 Mr. Shapiro?
16 MR. SHAPIRO: Nobody’s happy about the status
17 of discovery, so it must be going okay.
18 So this relates to the conversation we had
19 earlier, Your Honor, about the depositions. I mean, we
20 have reasked several of our requests for production in
21 context of our notice of deposition and received, again,
22 you know, additional information, sometimes immediately
23 before the deposition is to start, and that has presented
24 real problems with our attorneys coming in having never
25 seen a lot of these documents and having to question
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37 39
1 witnesses about it. So that has been a problem. 1 THE COURT: Just to make sure the Court
2 But I think I would agree that other than that, 2 understands what’s going on, the 31st is a Tuesday and
3 things are moving along. We’re not in the process right 3 the 3rd, which is the second day -- this is Galveston if
4 now of preparing a motion to compel or anything like 4 the Court recalls correctly. Is that correct?
5 that, if that’s -- 5 MR. SHAPIRO: Yes, Your Honor.
6 THE COURT: Well, I was hoping the parties 6 MR. EASTERBY: Correct, Your Honor.
7 could avoid that. You’ve been doing quite well so far 7 THE COURT: Is Friday. And I’m endeavoring to
8 and the Court appreciates that. 8 make myself available most of those two days, or at least
9 MR. SHAPIRO: If I could address one other 9 reachable so I can do what I can to help the parties get
10 issue that was raised, there was a -- we’ll talk about 10 through these appropriately or get through this one
11 this when it comes to the 30(b)(6), but there was -- 11 appropriately.
12 before we let this pass, there was a comment that we have 12 MR. EASTERBY: We very much appreciate that.
13 come to an agreement on the terminology. I’m not sure 13 MR. SHAPIRO: We’ll do our best to avoid
14 that’s exactly right. There still may be disagreements 14 picking up the phone.
15 about some of the terminology in the 30(b)(6). We talked 15 THE COURT: Okay. The Court would appreciate
16 about that the last time we spoke with the Court. And I 16 that. I have other things to be doing. So do you.
17 think, at the Court’s request, Plaintiffs notified you of 17 Okay, all right. Document discovery other than
18 the date of Mr. Thomas’ upcoming deposition. So should 18 electronically stored information, a large number of
19 any disputes arise, we understand the Court intends to 19 documents have been produced I take it.
20 make itself available for -- 20 MR. SHAPIRO: That’s correct, Your Honor. To
21 THE COURT: Yes. 21 date, we, Plaintiffs, have produced over 13,000 pages.
22 MR. SHAPIRO: -- for resolution of those 22 That’s just for the -- I didn’t get data from the whole
23 issues. 23 group. That’s just for the six test Plaintiffs that my
24 MR. IRVINE: And, Your Honor, if you want to 24 group represents, so -- and that’s half the people. So I
25 suggest a different term for the reservoir just to 25 assume it’s roughly double that, including some 72 native

38 40
1 resolve our -- all these complaints, we’re happy to let 1 files that are on their way out the door.
2 you cogitate on that for a little while. 2 The Government has produced -- our count is
3 THE COURT: Well, I’m happy for the warning, 3 just over a million pages. We’ve engaged a whole group
4 let’s put it that way. But this is a semantic problem. 4 of reviewers to dig through it and we’ve done electronic
5 It’s not -- 5 reviews, sort of word search type of things, and then
6 MR. CHAREST: It really is, Your Honor. I 6 we’re also doing manual review of that as well.
7 mean, the fight was how do we notify the Government about 7 THE COURT: In what form have those documents
8 the topics for 30(b)(6). They know what we’re asking 8 from the Government been produced? I take it the
9 about, so we’ve done our best to get there and I think we 9 Plaintiffs have produced paper copies. Is that correct?
10 have. We haven’t received objections back to the most 10 MR. CHAREST: We all -- no, Your Honor.
11 recent set, so we’ll see, but I think we’re there. 11 It’s -- well, no, usually it’s in like load file with a
12 MR. EASTERBY: And that’s correct, Your Honor. 12 TIFF or a TIFF with a load file, electronic transactions.
13 We served the United States on July 16th with our 13 THE COURT: Right.
14 30(b)(6) notice. I believe it was our fourth iteration 14 MR. CHAREST: Yes, sir.
15 after approximately eight and a half weeks of meet and 15 THE COURT: And the Government has produced in
16 confer to try to get around these issues. That first 16 what form?
17 deposition will commence on Tuesday, July 31st. So if 17 MR. CHAREST: The same, Your Honor.
18 the United States has any further objections or issues 18 MR. IRVINE: The Government also produced
19 with the notice, I would like for them to respond very 19 several hundred gigabytes of native files, modeling
20 quickly because that deposition is next Tuesday. 20 files, GIS files, spreadsheets and things. So we feel
21 MR. SHAPIRO: If I could, we have the same 21 that they’re being generous on their production.
22 objections that we had before. The reason we haven’t put 22 THE COURT: Yes. Well, let me ask --
23 it into writing is because the Court ordered the 23 MR. SHAPIRO: Some would say too generous.
24 deposition to go forward. But we have not resolved our 24 THE COURT: -- whether or not or how the
25 earlier concerns about some of the language. 25 production has been identified, and I’m talking about

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1 specific -- I can’t imagine Bates stamping all of this. 1 discrete files or subfolders. We don’t know if they’re
2 MR. CHAREST: So that’s actually -- that’s been 2 coming from the Galveston District or from NOAA or from
3 a bit of an issue where sometimes there will be a Bates 3 Kansas City. We have no idea. And this is --
4 number associated with, say, a zip file and you open the 4 THE COURT: Why is Kansas City involved? Is
5 zip and there’s like 300 pages or 500 pages. Our plan, 5 that a regional headquarters for this purpose?
6 although it’s expensive, is to take those numbers -- like 6 MR. EASTERBY: I believe they did some
7 say it’s Bates number 1000, okay? We would just reissue 7 hydraulics and hydrology work there at some point in
8 the actual PDFs with 1000 dot some number. I mean, 8 time, but that’s just based on my review of a lot of
9 that’s how I usually deal with that problem. I’m not 9 documents and trying to make sense of this. So it’s
10 expecting to do that to every single zip file, but rather 10 problematic because in that huge mass of information,
11 if we find a zip file that we think is relevant, we’ll 11 there may be highly relevant information in there for us
12 produce it -- basically produce it back to the Government 12 to look at, but we don’t have any way of knowing that.
13 with that new endorsement on it so -- 13 So they did give us a very kind of terse
14 THE COURT: So you’re adding basically to the 14 spreadsheet with the productions, but it doesn’t identify
15 numeric identification that the Government has provided, 15 the custodian who created these various native files or
16 but you’re doing so in a way that your addition is 16 when they were created or for what purpose they were
17 discrete and separately identifiable. 17 created. So it’s a bit of a struggle to get through it
18 MR. CHAREST: Unique, yes, sir. 18 and know what’s important and what’s just been dumped on
19 THE COURT: Okay. 19 us.
20 MR. CHAREST: To the right side of the decimal 20 MR. SHAPIRO: That’s the first I’ve heard of
21 basically. 21 this, Your Honor. But, I mean, I would presume that we
22 THE COURT: Yes. 22 can provide information should Plaintiffs have questions.
23 MR. SHAPIRO: Just to be clear, I think all the 23 So if they have particular questions, I’m glad to inquire
24 documents -- pardon me if I’m wrong, but I think all the 24 from the Corps.
25 documents we have provided are individually Bates 25 THE COURT: One of the topics the Court raised

42 44
1 numbered. 1 during our discovery conference in July 12th was
2 MR. CHAREST: No, that’s the issue. 2 custodian of records and I sort of had in the back on my
3 MR. SHAPIRO: No? 3 mind -- sorry to use a vernacular phrase -- that
4 MR. CHAREST: No. 4 something like this might happen, in any event, just
5 MR. IRVINE: There’s a large -- in the native 5 given the volume of material that the parties are having
6 files, there are these zips, like a 20 or 30-gigabyte zip 6 to deal with on both sides.
7 file that has a Bates number, but when you unzip it, 7 MR. IRVINE: One of the -- this isn’t a
8 there’s hundreds and hundreds of subfolders and files and 8 complaint against the Government. I understand why
9 things like that. So that’s -- 9 they’re doing this. But essentially what we think is
10 THE COURT: Well, as long as what you do with 10 happening is it’s the same document production for the
11 the base number is identifiable to the Government’s 11 Upstream case and the Downstream case. And so we have to
12 counsel and to the Court eventually, if it’s an important 12 go through these million of pages of documents and
13 enough document that it gets admitted as an exhibit, 13 basically sort of filter out what is relevant to the
14 that’s fine. 14 Downstream that is not relevant to the Upstream. I don’t
15 Mr. Shapiro? 15 know if there’s any way around that, but none of these
16 MR. SHAPIRO: That is fine by us, Your Honor. 16 documents are really categorized clearly to apply to one
17 I wasn’t even aware they were running into this issue 17 case or the other.
18 with the zip files. 18 So we have essentially -- you know, I think we
19 MR. CHAREST: Well, it’s not -- this type of 19 have the Downstream counsel looking through Upstream
20 issue in my mind is very common and we can work it out. 20 documents and we are filtering out Downstream documents.
21 MR. EASTERBY: Your Honor, there’s one issue 21 I think it’s a little too late to correct that now and
22 that I’d like us to take up very briefly, which is we are 22 we’re just trying to work our way through. But that’s
23 not really getting any context for where these things are 23 one of the reasons why there’s such a large volume of
24 coming from. They’ve produced, by my count, 272 24 information.
25 gigabytes of native files which comprise almost 70,000 25 THE COURT: Mr. Irvine, I think you’re exactly

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45
1 correct, that that is just a sifting and sorting process
2 that’s endemic to the split in the sets of cases.
3 MR. CHAREST: There is one specific area that
4 we’ve talked about that we expected to find and have not
5 been able to locate, which is -- and I mentioned it as
6 one of the topics I wanted to ask the Court about, but it
7 sort of pertains to what we’re talking about here -- is
8 post-event studies by the Corps and specifically the
9 Water Control Manual requires at least two, a flood
10 damage report and a post-flood report, and we’ve seen
11 things that look like maybe that, but I don’t see those
12 official -- I’ve never found those official reports.
13 THE COURT: Now, say again what those are
14 because we definitely talked about this on July 12th, but
15 we talked about it in a slightly different context. We
16 talked about it with respect to topics for Mr. -- I think
17 it was Mr. Thomas’ deposition.
18 MR. CHAREST: Correct, Your Honor.
19 THE COURT: Twenty-eight and 29, do I -- topics
20 28 and 29? Do I remember that correctly?
21 MR. CHAREST: I don’t have that on my -- you
22 know, I’m sorry, I don’t -- you’re probably right.
23 THE COURT: I have this quirky memory, but go
24 ahead.
25 MR. CHAREST: So in the Water Control Manual,
47
1 privilege being asserted to it, let’s learn what it is.
2 And, more generally, all the Corps work done in relation
3 to post-Harvey action, I think we’re entitled to see it.
4 It’s not work product; it’s Corps work.
5 THE COURT: It could be work product. That’s a
6 possibility.
7 MR. CHAREST: I think on the margin some of it
8 might be --
9 THE COURT: But the --
10 MR. CHAREST: -- might be considered that, I
11 agree. But --
12 THE COURT: I’m sorry, go ahead. I overspoke.
13 MR. CHAREST: I’m sorry. I said, on the
14 margin, I think that that’s right, there could be a blend
15 where it becomes work product, where they are actually
16 assisting the lawyers. But when they’re doing their job
17 as Corps employees to maintain and monitor and prepare
18 for future -- to maintain and monitor the dam and prepare
19 for future floods, that’s their work. It’s not done for
20 the lawyers; it’s done for their work.
21 And we can argue that later, but the first
22 question is do these reports exist, do these other
23 studies exist, and are they being disclosed or not.
24 THE COURT: The Court has a sneaking suspicion
25 that this topic will come up in later matters.

46 48
1 Section 9-06, it talks about post-flood reports and -- 1 MR. CHAREST: We share the suspicion.
2 THE COURT: Was there such a report generated 2 THE COURT: Mr. Shapiro?
3 in this matter? 3 MR. SHAPIRO: This is the first time I’m
4 MR. CHAREST: I don’t know and -- we would like 4 hearing of this issue, but I’m glad to look to see if
5 to see it. 5 those two reports exist.
6 THE COURT: You will ask? 6 MR. CHAREST: Not just the two. I’m talking
7 MR. CHAREST: Yes, sir. That’s the specific 7 about all Corps work product post-Harvey. If it’s done
8 thing, flood damage report and a post-flood report, both 8 for the lawyers, let’s know what that is. If it’s not
9 expressly called for in the Flood Control Manual, and 9 done for the lawyers, let’s know what that is. If we
10 we’re not confident that we’ve seen “the thing” yet. And 10 find a demarcation line, maybe we agree, maybe we don’t,
11 that actually leads me into just a slightly similar, but 11 but then if we don’t, we can ask the Court.
12 a little bit bigger in scope issue, is that if there are 12 THE COURT: All right. This is a topic for
13 -- I’ll note that Michael Sterling is one of the experts 13 further discussion.
14 that the Government was to -- and he’s a Corps -- a Corps 14 MR. CHAREST: Yes, sir. Thank you.
15 employee. 15 THE COURT: Has either side or both sides
16 If they’re doing this work, this post-flood 16 produced privilege logs?
17 work and kind of couching it under the cloak of work 17 MR. SHAPIRO: Yes, Your Honor. So this has
18 product, I think that’s a real problem because those 18 been the topic of some recent email traffic. I’m going
19 reports are specifically required by the Corps and I 19 to try to be clear here because there’s been some --
20 don’t see there’s any reason why the people don’t get 20 perhaps some miscommunication here by email. But, yes,
21 those reports. I don’t know if that’s the case, but we 21 so we’ve provided or we’ve made available an enormous
22 wouldn’t see it because it would be post-action, post- 22 number of documents as part of our initial disclosures.
23 litigation, you know, work product and they would just 23 As part of that process, we included a discovery --
24 never get logged. So I just need to know if those 24 excuse me, a privilege log and provided that to
25 reports are out there, where are they? And if there’s a 25 Plaintiff. Those were the only documents that we’ve

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1 withheld based on privilege. 1 literally set aside a group of documents if they have an
2 And we are -- as the Court knows, we are 2 attorney’s name on them or other indicia of privilege and
3 currently in the process of reviewing the ESI documents 3 make a production, issue a log, and then go back -- turn
4 that -- currently, the email which is due on August 10th, 4 back to this pile of documents and start sifting through
5 from a certain number of custodians. And those are the 5 it. And those documents having been set aside will then
6 emails that were hits on particular search terms that the 6 generate themselves either another group of things that
7 parties had agreed to. 7 get produced or things that don’t.
8 THE COURT: Those particular search terms were 8 So our question was we received a log --
9 ones that indicated they ought to have been reviewed for 9 privilege log on June 22nd, and then we’ve had subsequent
10 privilege or work product such that they would not 10 productions since then. And my question was are -- is
11 automatically be produced. Is that correct? 11 there anything withheld that’s not on the log, meaning
12 MR. SHAPIRO: Well, there are two searches, two 12 are there things still in this hopper that are still
13 electronic searches. One is we used a computer program 13 being worked through, anything at all that’s not
14 or the Corps used a computer program to -- using 14 represented in the log, because it seems odd to me that
15 particular search terms to identify emails from those 15 when we received the log, Ms. Brown said it was for the
16 custodians that might be relevant and responsive to 16 hard copy documents that were in the Corps office that we
17 Plaintiffs’ discovery. 17 did our first review of. So she limited it in scope to
18 THE COURT: Well, the Court understands that. 18 that.
19 That’s the base set. 19 And then we hear from the Government that, no,
20 MR. SHAPIRO: Yes. 20 no, that log applies to all of the documents produced and
21 THE COURT: But there’s a specific set that 21 there’s nothing else that’s been withheld aside from the
22 identifies possible ESI that might have privileged or 22 ESI protocol, which I’m not quibbling with yet because
23 work product material in it, right? 23 it’s not over. So that’s -- if I understand the
24 MR. SHAPIRO: That’s exactly right. So that 24 representation correctly, that aside from the ESI work,
25 then creates a subset of the whole ESI email documents 25 nothing’s been both officially withheld and/or set aside

50 52
1 that may be privileged. We are in the process of 1 that’s not reflected in the log, I’m content with that.
2 reviewing those, and we have not generated a privilege 2 I just want to be clear that that’s what -- that my
3 log because, as you might expect, as we go through it, 3 understanding is correct.
4 it’s clear that some of those are not privileged and we 4 MR. SHAPIRO: That is correct.
5 won’t assert a privilege with respect to those. 5 MR. CHAREST: All right. So I’m content with
6 Once we finish that process, I suspect there 6 that. We still have the question on the ESI about
7 will be some that will be privileged and we’ll generate a 7 whether the review for privilege is part of the complete
8 new privilege log, together with the documents that we 8 production under the ESI -- the Court’s order on ESI and
9 turn over. 9 the schedule.
10 One of the questions Plaintiff had for us -- 10 THE COURT: We’re jumping ahead on topics --
11 and this is the email traffic over the last several days 11 MR. CHAREST: Yes, sir.
12 -- was whether we had withheld certain documents to 12 THE COURT: -- so we might as well cover it
13 assess whether it’s privileged or not, and that is not 13 now. The Court asked earlier, that is on July 12th,
14 the case. We -- 14 about rolling production and whether or not, once a given
15 THE COURT: Well, that’s a work product topic 15 set of ESI had been examined under the base terms and
16 all by itself, I would think. 16 maybe a review had been undertaken, whether those would
17 MR. CHAREST: Not the existence of those 17 be produced in advance of, say, August 10th, if we’re
18 documents being set aside. 18 dealing with the first category of ESI. Now, the
19 THE COURT: Not the existence, but on the other 19 question is, is that happening?
20 hand, whether or not they’ve been specifically reviewed 20 MR. SHAPIRO: We do intend to do that. We have
21 by counsel or an agent for counsel for work privilege or 21 now received certain ESI documents that were hits on our
22 work product might be. 22 search terms. We then did a further -- not we, the
23 MR. CHAREST: So let me put that -- let me give 23 computer technicians, did a further search for the
24 some more context to the Court. The existing protocol is 24 privilege doc --
25 it is permissible for the parties to set aside -- just 25 THE COURT: Possibilities.

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1 MR. SHAPIRO: -- privilege terms. That has 1 THE COURT: Well, we’re talking about
2 then created this subfolder. And we are reviewing both 2 additional ESI besides emails.
3 just to make sure that we’re not turning over a whole 3 MR. SHAPIRO: And I believe that comes due on
4 bunch of privileged documents in the first category and 4 the 24th.
5 we are looking at the privilege -- the ones that have 5 THE COURT: And we’re talking about September
6 been tagged as possibly privileged. But we do intend to 6 14th.
7 turn those over to Plaintiffs on a rolling basis. 7 MR. SHAPIRO: Oh, maybe it was the 14th, not
8 THE COURT: The Court had expressed concern 8 the 24th.
9 earlier about using the clawback provisions of Rule 9 THE COURT: I’m sorry?
10 502(d), and the Court hoped that that would happen; that 10 MR. SHAPIRO: You could be right, Your Honor,
11 is, if you have a set of ESI that had hits, if you will, 11 maybe it’s the 14th.
12 on the base terms, but not on the specific terms on 12 THE COURT: Well, I’m just looking at the
13 privilege possibility, that those would be produced 13 scheduling order -- the amended scheduling order.
14 without necessarily taking the time for a lot of review, 14 MR. CHAREST: The 24th is for other -- certain
15 that you would do spot checks only. 15 individuals and the 14th is, I think, other individuals.
16 MR. SHAPIRO: Yes. 16 THE COURT: Well, that’s true, but --
17 THE COURT: And with the possibility of 17 MR. SHAPIRO: So, Your Honor, just so I’m
18 clawbacks. 18 clear, I’m looking at ECF 129.
19 MR. SHAPIRO: Yes. And that is what we are 19 THE COURT: Yes.
20 doing. Spot checks is a good term. We’re not -- I mean, 20 MR. SHAPIRO: And this is page 3. There’s an
21 trust me -- 21 August 10th deadline for email-related ESI from certain
22 THE COURT: You just couldn’t. 22 custodians’ accounts.
23 MR. SHAPIRO: -- when I tell you we do not have 23 THE COURT: Yes, exactly.
24 all the time to go through all of this ESI. 24 MR. SHAPIRO: Then August 24th, additional ESI
25 THE COURT: Right, exactly. 25 on the computers or hard drives of those individuals and

54 56
1 MR. SHAPIRO: But we do have a need to go 1 ESI email from other custodians. That’s what we’re
2 through it, just to spot check it to make sure it has in 2 relying on.
3 it what we think it has in it. 3 THE COURT: That’s right. There are two
4 THE COURT: That’s understandable. 4 categories on the 24th; that is, additional ESI apart
5 Mr. Charest? 5 from emails and then email ESI related to certain
6 MR. CHAREST: We haven’t started rolling yet, 6 individuals, right?
7 but I understand we will eventually start rolling on the 7 MR. SHAPIRO: Yes, Your Honor. I’m just not --
8 production. But we haven’t -- 8 I’m not tracking an August 14th date.
9 THE COURT: Well, we’re creeping closer to the 9 MR. CHAREST: You know, I think I misspoke. As
10 10th of August. 10 I understand it, it’s emails on August 10th, computer-
11 MR. CHAREST: We are indeed. I do want to -- 11 specific August 24th, and kind of network, more global,
12 this is not a topic we’ve discussed, but I’ve heard it 12 on September 14th. Is that what you --
13 twice now and I want to just be real clear. I’ve heard 13 THE COURT: Well, it is what it is.
14 the characterization of the ESI search as being emails 14 MR. CHAREST: Yes, sir.
15 and emails. In my understanding, it’s emails, but, you 15 THE COURT: Because we sorted that out at the
16 know, files that are on their computer, share files; it’s 16 last discovery conference.
17 not just the emails, right? 17 MR. CHAREST: All right. I just wanted to -- I
18 MR. SHAPIRO: Well, the August 10th is emails. 18 kept on hearing emails and we’re not just doing emails
19 MR. CHAREST: Okay. And is the overall 19 was my baseline point.
20 production more than that? 20 THE COURT: Right.
21 MR. SHAPIRO: I believe there are two other 21 MR. CHAREST: Yes, sir.
22 days, August 24th and September 17th -- August 24th, as I 22 THE COURT: Okay. Well, I think actually we
23 recall, was other email-based that was -- or other ESI 23 may have covered the ESI topic.
24 located on the hard drives or the computers of those 24 MR. EASTERBY: Your Honor, on that point very
25 custodians. 25 quickly, to the extent the designated 30(b)(6) witnesses

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1 may be relying on any of that ESI in their preparations, 1 MR. CHAREST: I guess we’re still waiting on
2 I do think it would be fair that it be produced 2 Ms. Johnson-Muic?
3 immediately. Otherwise, we don’t have a basis to examine 3 MR. SHAPIRO: Yes, we are just waiting for her
4 on that. 4 to confirm that day.
5 THE COURT: We talked about that in context of 5 MR. CHAREST: But so far, so good.
6 second depositions -- or not second, but further 6 THE COURT: So the 30(b)(6) deponents will not
7 additional designated times for depositions. And it may 7 have had -- may not have had -- that’s a better way to
8 be that -- we talked about that, especially in the 8 put it -- their ESI produced in advance of the
9 context of having the 30(b)(6) depositions occur before 9 depositions. Is that correct?
10 the ESI necessarily had to be produced. 10 MR. CHAREST: Yes, sir.
11 MR. CHAREST: Well, I think Mr. Easterby’s 11 THE COURT: They may or may not?
12 point is slightly different than that, Your Honor. If in 12 MR. CHAREST: Well, even if it comes out now, I
13 preparation of the witness they’re providing him, oh, 13 mean, getting it in a few days -- well, either way,
14 this is the model you need to learn and understand -- 14 you’re right. You’re exactly right, yes, sir. They may
15 THE COURT: You can ask him, what did you look 15 or may not. So far I have nothing.
16 at in advance by way of preparation. That’s the simplest 16 THE COURT: All right.
17 thing going. 17 Mr. Shapiro?
18 MR. EASTERBY: Right, we will. I just thought 18 MR. SHAPIRO: That is correct.
19 it would be more efficient to actually have the 19 THE COURT: Okay.
20 materials. But I’d candidly forgotten what you said 20 MR. CHAREST: But in fairness, we don’t view
21 about having a second deposition, so that sounds fair 21 that specific issue as that troublesome because these are
22 enough, Your Honor. 22 depositions of the Government, right, and so if we have
23 THE COURT: Well, all you have to do is show 23 ESI that ties to Mr. Thomas, for example, specifically,
24 good cause. 24 he can be called as an individual at some later date.
25 MR. EASTERBY: I understand. 25 THE COURT: No, exactly, right. But you can

58 60
1 THE COURT: I’m sure the deponent won’t like it 1 find out what he looked at or studied or prepped about in
2 if that happens, but we’ll see. 2 anticipation of his 30(b)(6) deposition. You just ask
3 MR. CHAREST: Thank you, Your Honor. 3 him.
4 THE COURT: And we don’t know that it’s going 4 MR. CHAREST: Correct, sir. We intend to do
5 to happen. 5 that.
6 MR. EASTERBY: Correct. Fair enough, Judge. 6 THE COURT: Okay. What haven’t we talked about
7 Thank you. 7 respecting the 30(b)(6) -- I’m sorry?
8 THE COURT: Let’s talk about the depositions. 8 MR. CHAREST: No, I thought you were jumping to
9 MR. CHAREST: All right. The 30(b)(6) 9 another topic.
10 depositions, Your Honor, Mr. Thomas, as we noted already, 10 THE COURT: No, I wasn’t.
11 is scheduled for two days starting on July 31st, second 11 MR. CHAREST: But if you’re inviting more --
12 day August 3rd; Robert Heinly is scheduled for August 12 THE COURT: I was just making sure, from Mr.
13 17th. We’ve requested Paula Johnson-Muic for August 9th, 13 Shapiro’s standpoint, that we had covered that particular
14 but we’re waiting for confirmation on that. That’s the 14 topic.
15 status. 15 MR. SHAPIRO: The only other thing I’ll just
16 THE COURT: Where is she based? 16 say, Your Honor, is the Downstream Plaintiffs have
17 MR. CHAREST: Dallas. 17 noticed the deposition of Mr. Thomas for September 6th.
18 THE COURT: Galveston? 18 THE COURT: September what?
19 MR. SHAPIRO: She’s in Dallas. 19 MR. SHAPIRO: Sixth.
20 THE COURT: And Mr. Heinly? 20 THE COURT: Well, that might be inconvenient
21 MR. SHAPIRO: I believe he’s going to be 21 for Mr. Thomas, but in any event, there’s nothing I can
22 deposed in Houston. 22 do about that.
23 MR. CHAREST: That’s right. 23 MR. SHAPIRO: Just letting the Court know.
24 MR. SHAPIRO: And Mr. Thomas will be deposed in 24 THE COURT: All right. And how many days? One
25 Galveston. 25 day?

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1 MR. SHAPIRO: I believe it was noticed for one 1 say about that topic.
2 day. 2 MR. CHAREST: I think actually -- no disrespect
3 THE COURT: And that’s September 6th? 3 intended -- it’s one per party, right? So strictly
4 MR. SHAPIRO: Yes. 4 speaking, that’s -- and that’s kind of where we are.
5 MR. IRVINE: And as we discussed at the 5 That’s the problem. Our plan, so the Court knows, is to
6 previous hearing, Your Honor, we’ll provide transcripts 6 have one lawyer ask the questions for each of the
7 for the Downstream counsel so they can review it and make 7 individual witnesses, which I think is unobjectionable by
8 whatever decisions about questions that they need to 8 anybody’s standard. My question -- but that’s --
9 make. It’s a separate case, but we’ll assist them in 9 leadership will take those questions.
10 providing those transcripts. 10 We have had indication from nonleadership that
11 THE COURT: Yes. That should eliminate 11 they would like to ask questions as well. Our indication
12 unnecessary duplication. I won’t say it will eliminate 12 to them -- our response to them has been, I don’t think
13 all duplication, but it just won’t -- but let’s hope for 13 that the Government will allow it and I’m not sure the
14 the best. 14 Court will allow it, but I’m not in a position to tell
15 MR. CHAREST: Before you change topics from 15 you no. You see what I mean? That’s my --
16 30(b)(6) -- 16 THE COURT: Well, there is a responsibility
17 THE COURT: Yes. 17 attendant to being co-lead counsel, and being co-lead
18 MR. CHAREST: -- there’s a couple logistical 18 counsel is to collect, if you will, the questions from
19 issues. One was about which lawyers are going to be 19 the other parties who are not represented by co-lead
20 asking questions and also just generally attendance. I 20 counsel so that the co-lead counsel can carry forward.
21 don’t know what the size of the -- we’ll do the second 21 MR. CHAREST: We’ll do that then, yes, sir.
22 thing first. I don’t know the size of the room that the 22 Understand.
23 Government intends to provide for the deposition, but I 23 THE COURT: Now, how many co-lead counsel will
24 suspect it’s a fair bit shorter than the number of 24 be asking questions of Mr. Thomas?
25 lawyers that are involved in the overall case. 25 MR. CHAREST: For the Plaintiffs, one, Your

62 64
1 And what I mean -- I’m being a little bit glib 1 Honor.
2 here, but, you know, obviously the government lawyers 2 THE COURT: One.
3 will be there, the leadership lawyers will be there that 3 MR. CHAREST: Well, sorry, one for Upstream,
4 are going to be asking the questions, but I know that 4 yes, sir.
5 other lawyers want to attend, and I’d like the Court’s 5 THE COURT: How -- go ahead.
6 guidance on sort of the limitations of that, if any. 6 MR. CHAREST: One for Upstream.
7 Because I’m not in a position to go tell them, no, you 7 THE COURT: One for Upstream.
8 can’t be here, but on the other hand, I’m not in a 8 MR. CHAREST: Yes, sir.
9 position to say, you need to give me a bigger room. So 9 THE COURT: All right.
10 I’m kind of in a pinch. 10 Mr. Shapiro?
11 THE COURT: This is a tendentious, if I might 11 MR. SHAPIRO: That is fine by us.
12 use an odd word, topic because I’m sure everyone involved 12 THE COURT: That’s fine?
13 wants to have some inkling of what’s going on. 13 MR. SHAPIRO: We would oppose multiple Upstream
14 Ordinarily, you’d have one counsel on each side in a 14 attorneys asking questions.
15 deposition. It wouldn’t be necessarily only a 30(b)(6) 15 THE COURT: No, I understand that. But let’s
16 deposition. It’s like a witness. You’d have one counsel 16 cover what the role of Downstream is in the
17 for each side. 17 circumstances. This is a coordination exercise, but it’s
18 What have the parties got in mind, Mr. Shapiro? 18 not a joint representation exercise. Do the Downstream
19 MR. SHAPIRO: That sounds reasonable to us, 19 counsel want to ask questions at this first deposition of
20 Your Honor. 20 Mr. Thomas?
21 THE COURT: What? 21 MR. CHAREST: It’s not Downstream counsel that
22 MR. SHAPIRO: One attorney per side sounds 22 have been asking us about that. It’s lawyers who have
23 reasonable to us. 23 individual clients that are either test properties or are
24 THE COURT: Well, it’s the ordinary 24 just in the case generally. And I take your direction on
25 arrangement, but we’ll see what the Plaintiffs have to 25 that, sir, is that we should make ourselves available to

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1 them to get input from them and then in the exercise of
2 our judgment, use whatever question that we see fit.
3 THE COURT: And they can even be present during
4 the deposition and feed you questions -- I don’t know who
5 -- which among you is going to take that deposition. But
6 feed you questions that you can think about before you
7 ask them. But in any event, let’s just not have a whole
8 set of people in the room able to ask questions. That
9 would complicate this to an extreme.
10 MR. CHAREST: Okay, understood. So that
11 addresses the questioning thing. The other one is,
12 strictly speaking, a logistical issue where -- I don’t
13 know how many people want to be there, how many other
14 lawyers want to attend who are -- fall in that
15 nonleadership but have a client in the case --
16 THE COURT: Well, you might have individuals
17 Plaintiffs who want to attend as well.
18 MR. CHAREST: Less likely, I think.
19 THE COURT: Possible.
20 MR. CHAREST: Yes, sir. Yes, sir. But, I
21 mean, the point is there’s a -- you know, there’s a
22 physical limitation on how many people can be in there,
23 so we’d like some guidance on it so we can tell them.
24 THE COURT: The reason the Court mentioned
25 individual Plaintiffs is that a party to a case or a
67
1 THE COURT: One of the problems, of course, is
2 that the 14 test properties are essentially bellwethers
3 for everybody else. Now, bellwether has meaning that is
4 a little difficult sometimes for a layman to understand
5 because it isn’t necessarily binding on somebody who
6 isn’t one of the test properties, but it provides
7 indicia, and that can be a problem.
8 MR. CHAREST: What I had in mind to propose --
9 and I maybe should have just done it from the beginning
10 rather than sort of swimming around here -- is maybe the
11 Court could endorse a hierarchy. So DOJ counsel,
12 leadership counsel, lawyers that have -- lawyers that
13 represent test property Plaintiffs, test -- you know,
14 Plaintiffs themselves, you know, some sort of hierarchy
15 like that, and then however big the room is, it is. And
16 then what we can also do -- and I think they’re doing
17 this in the Downstream -- is make the deposition
18 available by sort of video feed to some other location
19 that if people want to come to. That seems a little bit
20 more --
21 THE COURT: You might have a -- I guess that’s
22 one of the questions, whether or not these are going to
23 be videotaped depositions. The Court doesn’t know that.
24 MR. CHAREST: Our depositions of the Government
25 will be videotaped.

66 68
1 proceeding has a definite role and the Court is very 1 THE COURT: They are going to be videotaped?
2 reluctant to bar any party from attending something like 2 MR. CHAREST: Yes, sir. Yes, sir.
3 this. It can be done, but there has to be a very good 3 THE COURT: Okay. Well, that eases the problem
4 reason for it. 4 -- I don’t say it’s a problem because we don’t know yet.
5 MR. IRVINE: I think Your Honor -- 5 But in any event, that eases the situation slightly, but
6 THE COURT: Mr. Irvine? 6 only slightly. We’ll see.
7 MR. IRVINE: One thing we might be able to do 7 Let’s hear from Mr. Shapiro. You don’t have
8 is sort of get some idea of the size of the room that the 8 any objection to these being videotaped depositions, I
9 Government’s going to provide. It’s down at the Corps of 9 take it.
10 Engineers office in Galveston. It’s a secure facility. 10 MR. SHAPIRO: No, I think they have the right
11 I think you have to be put on a list to be able to get 11 to do that.
12 past the gatehouse. If they give us some indication of 12 THE COURT: Were any of the test property
13 how big the room is, how many people it can accommodate, 13 depositions videotaped?
14 we can start keeping -- you know, taking requests and 14 MR. SHAPIRO: No.
15 then filter out. 15 THE COURT: No. Okay.
16 I think one opening may be that, under your 16 MR. CHAREST: I think what we’ll do, Your
17 general case management order, the nontest property 17 Honor, is first let’s find out the extent of the problem
18 plaintiff cases are administratively stayed. So I don’t 18 and we’ll communicate with all nonleads and say who
19 know if that, you know, gives you some ability to say 19 actually wants to attend and see the scope of the problem
20 they don’t get to conduct discovery and discovery is a 20 and see the size of the room. If we’re called to make
21 deposition. I’m not encouraging, you know, anyone -- we 21 some sort of decisions, we’ll be guided by the hierarchy
22 haven’t had a request from Plaintiffs to attend those 22 kind of principle, and then if we have a real problem,
23 depositions yet, but we have had requests from nonlead 23 we’ll just notify the Court.
24 counsel that don’t have test property Plaintiffs. We’re 24 THE COURT: Well, I’m sure you can explain the
25 just going to keep a list and see how many we can fit in. 25 problem to those who are not high on the list, if you

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1 will. 1 understand that correctly?
2 MR. CHAREST: Yes, sir. 2 MR. SHAPIRO: Well, so this is an issue that
3 THE COURT: But in any event, it is what it is. 3 we’ve run into. Just to take Richard Long as an example.
4 Are you familiar with the room or the 4 THE COURT: Yes.
5 circumstances, the setting in Galveston, Mr. Shapiro? 5 MR. SHAPIRO: We received a notice of
6 MR. SHAPIRO: I’ve been to the Galveston office 6 deposition for Mr. Long from the Downstream Plaintiffs
7 several times, but I need to ask them what the biggest 7 for his deposition to occur on August 7th. He’s a fact
8 room available for this is. I don’t know that 8 witness, and we’ll talk about him when we talk about his
9 information. But I’ll find out and let the Plaintiffs 9 phone. But Upstream Plaintiffs have informed us that
10 know. 10 they’re aware of that date. I believe they intend to
11 THE COURT: All right. Well -- 11 perhaps be there for Mr. Long’s deposition, but that they
12 MR. IRVINE: I can deal with this with Mr. 12 may take a subsequent deposition of Mr. Long.
13 Shapiro, but I think there’s probably an advanced 13 We’ve responded that we oppose that, that --
14 timeline for us getting a list of attendees to the Corps 14 just to put it into perspective. Mr. Long had no
15 of Engineers. I believe we need to do that. 15 decision-making authority, was not involved in the
16 MR. SHAPIRO: That’s a very straightforward 16 decision to release waters from Addicks or Barker
17 process. 17 Reservoirs. His actions relate to the Upstream and the
18 MR. IRVINE: Okay. 18 Downstream. The questions that would be asked,
19 THE COURT: Well, that involves co-lead counsel 19 presumably, would be the same for the Upstream and the
20 providing notice to your colleagues and who can then 20 Downstream. So we do believe that for the other fact
21 provide notice to their clients. 21 witnesses, including Mr. Long, it should be one
22 MR. CHAREST: Yes, Your Honor. 22 deposition rather than doubling the amount of work we
23 THE COURT: But we do have pro se’s as well and 23 have to do in defending all of these witnesses twice.
24 you’ll have to deal with that subject, also. 24 THE COURT: Mr. Long is an interesting topic
25 MR. CHAREST: We have. We’re doing our best 25 for this issue because we have a text problem that we’ll

70 72
1 there, yes, sir. 1 talk about later. But you say this is the 11th of
2 THE COURT: I’m sure you have. 2 August?
3 MR. CHAREST: Yes, sir. 3 MR. SHAPIRO: No, the date I have is the 7th,
4 THE COURT: That’s all I have on that topic, 4 Your Honor.
5 and I think we’ve covered the points that you raised, Mr. 5 MR. CHAREST: The 7th, Your Honor.
6 Charest. 6 THE COURT: Seventh -- August --
7 MR. CHAREST: On -- with respect to the 7 MR. CHAREST: August 7th. Mr. Long was the dam
8 30(b)(6), that’s correct, yes, sir. 8 tender.
9 THE COURT: Mr. Shapiro, do you have anything 9 THE COURT: I’m sorry, he was?
10 else on 30(b)(6)? 10 MR. CHAREST: Mr. Long was the dam tender. He
11 MR. SHAPIRO: Nothing about 30(b)(6). We could 11 was the guy in charge operationally of the --
12 talk about the Plaintiffs’ depositions of the government 12 THE COURT: He either closed the gates or he
13 witnesses if that’s appropriate. 13 didn’t or he --
14 THE COURT: These are just fact witnesses at 14 MR. CHAREST: Yes, sir. He may have been
15 this point? 15 receiving, you know, instructions from above, but he
16 MR. SHAPIRO: Yes, correct. We have scheduled 16 would have received that instruction. They’ve got the
17 several of those, Your Honor. We’ve confirmed several of 17 depositions set for the 7th of August. Under the orders
18 those witnesses. So, for example, Richard Long has been 18 of the Court -- that the Court has issued, the first
19 confirmed with the Downstream Plaintiffs for August 7th. 19 email productions don’t happen until the 10th of August
20 We’ve confirmed other individuals, Kurt Buchanan, Michael 20 for Mr. Long. His computer won’t -- data won’t be
21 Kauffman, Edmond Russo, Colonel Zetterstrom, both with -- 21 produced until the 24th of August and any network share
22 some for Upstream, some with Downstream, some for both. 22 drives that he had access to won’t be produced until the
23 One issue that we -- 23 14th of September. And we have the text issue.
24 THE COURT: Would those be depositions taken on 24 But that’s the only thing that’s unique to him,
25 both Upstream and Downstream sides, Mr. Shapiro? Do I 25 but that schedule, as I said, pertains to all of these

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1 individuals that are being noticed. Our perspective and
2 what we told the Court was we want to do a 30(b)(6) to
3 kind of understand the change of command, who did what
4 and who we really need to depose, and then when the ESI
5 comes out, we’ll have it, and then when we have the ESI
6 for the individuals, we’ll say we want to chase these
7 individuals as necessary.
8 Downstream has a different approach. It’s
9 fine. It’s not my approach; it’s their approach; it’s
10 their case. But I’m aware that there is going to be a
11 deposition that’s been noticed on August 7th for Mr. Long
12 in the Downstream case. We intend to attend, as I told
13 Mr. Shapiro, but we reserve our right to notice his
14 deposition if, when we see the transcript for Mr. Long,
15 we say, oh, they missed these things. But it’s not
16 automatically going to be another deposition, but I’m not
17 going to take my shot now without his texts, his ESI, and
18 just wing it. I’m not going to do that. I don’t think
19 it’s appropriate.
20 MR. SHAPIRO: That issue is, I believe, a
21 legitimate one, Your Honor, which is why we opposed this
22 expedited scheduling and proposed to the Court that the
23 depositions take place after we’ve completed discovery.
24 We -- that suggestion was overruled.
25 THE COURT: After the -- well, let’s talk about
74
1 that because the discovery has a set of deadlines. So
2 it’s partial as we move along.
3 MR. CHAREST: Let me just be a little bit more
4 clear about our position. With respect to Mr. Long, I
5 don’t want to take his deposition without the full
6 understanding of what happened with him. But there
7 are -- there may be other depositions that are noticed
8 that we say, yes, we’ll cross-notice this one because we
9 internally say we’re comfortable with this person; this
10 other one, we’re not comfortable. So we want to have the
11 flexibility to either cross-notice or not. But, I mean,
12 we’re not going to -- I don’t think it’s fair for us to
13 have the Downstream dictate to us the schedule.
14 And in sort of playing off the Court’s point
15 about the 30(b)(6), we’ll get the transcript and we’ll
16 ask, and then that’s that.
17 THE COURT: Let me just ask whether Mr. Long is
18 the only one of the fact -- just purely fact witnesses,
19 not 30(b)(6) witnesses, who’s in this situation. Have
20 the Downstream lead counsel identified other deposition
21 dates for individual Corps fact witnesses?
22 MR. CHAREST: I think there has been some
23 agreement around dates. I don’t know that they --
24 THE COURT: Mr. Irvine might have --
25 MR. IRVINE: Yes. So, for example, there’s Mr.
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1 Buchanan, who’s going to be deposed on August 23rd, I
2 think, in West Virginia and I’m working with one of the
3 Downstream leads because we don’t feel like we have, you
4 know, more than, you know, six hours of questions between
5 us. So that deposition will be a joint cross-noticed
6 deposition between Upstream and Downstream.
7 THE COURT: So there will be a Downstream
8 deposition and then you’ll take a little pause and there
9 will be an Upstream deposition. So you’ll actually have
10 Upstream and Downstream counsel deposing this particular
11 Corps -- is it a Corps employee -- on the same day, but
12 in a different -- slightly different setting.
13 MR. IRVINE: However the Court wants to record
14 it, as two separate depositions or one deposition --
15 THE COURT: Yes.
16 MR. IRVINE: -- by two parties --
17 THE COURT: The short answer is yes.
18 MR. IRVINE: Yes, okay.
19 THE COURT: So let’s not have two counsel
20 examining the same deponent at the same deposition.
21 MR. SHAPIRO: So from our perspective, that’s
22 exactly what should happen with all of the government
23 fact witnesses because -- and I’m not -- Mr. Charest says
24 we’re trying to force them in a position where the
25 Downstream is dictating the schedule. That’s not what
76
1 I’m suggesting. What I’m suggesting is the coordination
2 that’s happening apparently with Mr. Buchanan, why can
3 that not also take place with Mr. Long?
4 THE COURT: That’s a good question, but
5 obviously it’s not with Mr. Long and the Court has no
6 clue why.
7 MR. CHAREST: Well, the fact is that some
8 witnesses, we think we understand what their role is
9 based on the record we have now; other witnesses, we
10 think we might need more information on. That’s -- we’re
11 definitely coordinating. You know, to the extent we
12 find, yeah, we both want to do it on these dates, that’s
13 fine and we’re doing it. But that’s coordination. We’re
14 not just asking to operate completely without regard to
15 each other. But it’s not appropriate, we don’t think,
16 for us to have to just do the dates that the Downstream
17 picked because the Downstream picked them.
18 MR. SHAPIRO: But we’re not saying that you
19 need to be -- the Downstream dictates. We’re saying
20 coordinate like you’re doing with Buchanan. So Mr. Long
21 was the dam tender. I mean, what’s going to happen? The
22 Downstream Plaintiffs ask, well, tell us how you raised
23 the gate, like physically how did you do it. And then,
24 what, three weeks later, we come back in, okay, now, tell
25 us how did you raise those gates.
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1 THE COURT: Well, hopefully, we won’t have that 1 MR. SHAPIRO: Very well.
2 question asked again. 2 THE COURT: It’s just that the Court
3 MR. SHAPIRO: Well, I’m afraid we’re heading 3 understands completely why the Upstream co-lead counsel
4 into a terribly inefficient process with respect to the 4 would not want to depose Mr. Long at this juncture. It’s
5 government witnesses that will just not fit into, in any 5 that simple.
6 reasonable way, the schedule that exists in the Upstream 6 Now, coordination is great and Mr. Buchanan
7 or Downstream. 7 provides a good example. But let’s just take it a step
8 THE COURT: Well, what I’m hearing is it works 8 at a time as we’re moving through this.
9 in some cases and it doesn’t work in others. 9 Mr. Shapiro, you don’t look happy.
10 MR. CHAREST: Correct. 10 MR. SHAPIRO: Well, it’s just Buchanan should
11 MR. NOLEN: Your Honor, may I be heard? 11 be the rule, not the exception.
12 THE COURT: You are? 12 THE COURT: Well, that’s true, he should be.
13 MR. NOLEN: I’m Rand Nolen. I’m co-lead 13 But on the other hand, as you know, the Court really
14 counsel on Downstream. 14 tries very hard not to tell counsel in a case what they
15 THE COURT: Yes. 15 ought to be arguing or what they ought to be contending
16 MR. NOLEN: The reason I asked to be heard is 16 or what approach they ought to be taking. So I just
17 we had already advised the Government and Mr. Shapiro 17 cannot deal with that issue respecting Mr. Long. If the
18 that Upstream had not committed fully to even wanting to 18 Downstream Plaintiffs want to depose him now, that’s
19 take Mr. Long’s deposition. So we wanted to proceed with 19 their business and Ms. Tardiff’s and Judge Braden’s.
20 Mr. Long’s deposition. What Upstream simply reserved 20 MR. SHAPIRO: Well, there’s certainly no
21 their right to do was review the transcript, see what was 21 objection to the Downstream Plaintiffs taking Mr. Long’s
22 adduced during the Downstream deposition. If they felt 22 deposition. That deposition is set. The problem is --
23 there was a need to depose Mr. Long on Upstream issues, 23 THE COURT: Well, it might --
24 heeding the Court’s instruction -- your instruction from 24 MR. SHAPIRO: -- why can’t the Upstream do it
25 the last hearing about reviewing the transcript and not 25 at the same time?

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1 replowing the same ground, they would do that. 1 THE COURT: No, it’s just -- that the Court can
2 But, otherwise, Mr. Long, I think, is the only 2 understand would not happen. Let me just look at one
3 one that we’re really dealing with at this juncture where 3 thing.
4 there’s an issue. But my understanding was they had not 4 You won’t even have the email production
5 even fully committed -- and that’s going to happen. 5 necessarily from Mr. Long by the 7th because that’s due
6 There are going to be Upstream witnesses, and there 6 on the 10th.
7 already are, that Downstream has no interest in deposing. 7 MR. CHAREST: That’s correct, Your Honor.
8 And the same is true, we will be reviewing -- Downstream 8 THE COURT: I just can’t deal with that.
9 will be reviewing all of the transcripts from the 9 MR. CHAREST: Nor we. Thank you, sir.
10 Upstream depositions that are taken, and we may have to 10 THE COURT: All right. Now, let’s go to Mr.
11 go back and ask for a deposition again. 11 Long’s cell phone. Mr. Vujasinovic?
12 But at this juncture, my understanding was that 12 MR. VUJASINOVIC: Your Honor, thanks. So if
13 Upstream, A, wasn’t going to participate in Mr. Long’s 13 you’ll recall at the last telephone hearing, Ms. Brown
14 deposition; they were going to attend, and if they saw a 14 indicated that the Corps was working on trying to recover
15 need for his deposition, they would simply ask on some 15 Mr. Long’s accidentally deleted text messages by going to
16 discrete issues that would be germane to their case. 16 the devices of the Corps personnel with whom he was
17 THE COURT: All right, thank you. 17 texting, and Ms. Brown indicated they were in the process
18 Let me ask Mr. Shapiro, who is the lead counsel 18 of doing that.
19 for the Government on the Downstream side? 19 Since that hearing, Mr. Shapiro has assumed the
20 MR. SHAPIRO: Kristine Tardiff. 20 lead role, so we communicated with him yesterday and
21 THE COURT: Ah-ha. Ms. Tardiff can take care 21 learned that apparently the Government has obtained some
22 of herself, the Court has no doubt about that, just as Mr 22 text messages in question from these other devices and
23 Shapiro can take care of himself. So Ms. Tardiff can 23 they’re still working on doing that. So that’s where we
24 address that with co-lead counsel for the Downstream 24 are in the process now.
25 Plaintiffs. The Court really won’t touch that issue. 25 We would kind of like to have perhaps a

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1 deadline by which -- well, first of all, we’d like to get 1 MR. SHAPIRO: I’m not sure if it was really
2 ASAP the text messages they have already recovered, and 2 August 17th. Again, Mr. Long can explain that in his
3 then, number two, we’d like some kind of possible order 3 deposition. But in any event, he was attempting to add
4 whereby they would give us, on a rolling basis, perhaps 4 some functionality to his phone that didn’t previously
5 weekly, what they get, and then, number three, hopefully 5 exist. He’s not the most computer savvy person after
6 a deadline by which they’ve got to finally get them all 6 having spoken with him. I’m not either.
7 to us, all that they can get from these other devices. 7 THE COURT: I’m laughing because I rely on my
8 It’s been about six months since this issue was raised 8 law clerk to help me in these respects.
9 and everybody knew there was an issue with the 9 MR. SHAPIRO: I rely on my teenage daughter for
10 accidentally deleted text messages. 10 that.
11 THE COURT: The Court recalls that noninvasive 11 MR. VUJASINOVIC: I can fill in the missing
12 means or nondestructive means were used, Cellebrite, if 12 information. So on February 23rd of this year, the
13 the Court recalls correctly. 13 Government’s expert wrote a report after he did the
14 MR. VUJASINOVIC: Yes, Your Honor. 14 Cellebrite thing. iPhone 6s, no texts before October
15 THE COURT: And that was unavailing. 15 17th of 2017. So those are the facts.
16 MR. VUJASINOVIC: So the Government’s retained 16 MR. SHAPIRO: And that is -- it’s correct that
17 expert used Cellebrite and confirmed the nonexistence of 17 the Cellebrite software was run on it because as a result
18 the text messages, correct. 18 of him attempting to add this functionality, he
19 THE COURT: And the Court asked before whether 19 apparently -- he was following a list of instructions and
20 they were just overwritten or whether they just had 20 apparently ended up resetting his phone. That
21 disappeared or what happened. 21 accidentally deleted the text messages.
22 MR. VUJASINOVIC: Well, what the Government has 22 THE COURT: Well, I take it the destructive
23 told us is that Mr. Long, on October 17 of last year, 23 means would involve essentially taking his phone apart
24 during an update of his phone, there was a software error 24 and recovering the chip and using the chip as the basis
25 that just deleted all of his text messages. 25 for a separate investigation.

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1 THE COURT: Mr. Shapiro, what type of cell 1 MR. VUJASINOVIC: An expert would have to
2 phone does Mr. Long have? 2 remove the chip. It would destroy the iPhone 6s.
3 MR. SHAPIRO: Your Honor, I don’t know the 3 THE COURT: Right.
4 type. It’s not an iPhone. 4 MR. VUJASINOVIC: And -- however, before doing
5 MR. VUJASINOVIC: iPhone 6s. 5 that, an image can be taken of the phone, assuming the
6 MR. SHAPIRO: I was told it wasn’t an iPhone. 6 Government hasn’t already done that.
7 I’m not exactly sure, though. 7 THE COURT: It can be duplicated someplace
8 MR. VUJASINOVIC: It’s the same as you have, 8 else.
9 Your Honor. 9 MR. VUJASINOVIC: Data loss is not a
10 THE COURT: Well, except mine started to fail, 10 consideration. I don’t know what the phone’s worth,
11 so the Court had to replace it with an 8s and now I have 11 but --
12 an 8s. So the Court -- 12 THE COURT: Well, I’ve discovered that you
13 MR. SHAPIRO: I had understood it actually was 13 cannot -- well, I know more about this subject than I did
14 not an iPhone, but I don’t -- it worries me a little bit 14 a week ago, but I’ll stop.
15 that Plaintiffs are certain that it was an iPhone. But I 15 MR. SHAPIRO: If I could address that point,
16 could find that out and certainly they can ask Mr. Long. 16 Your Honor. I have communicated to Plaintiffs’ counsel,
17 MR. VUJASINOVIC: Ms. Brown submitted a report 17 because they have raised this possibility of doing this
18 that says it was an iPhone. If they did the wrong phone, 18 more invasive technique to -- that may destroy -- or will
19 I guess we have a new issue. 19 destroy the phone.
20 MR. SHAPIRO: No, no, don’t take my word on it. 20 THE COURT: Will, would.
21 I understand that they -- that Mr. Long was attempting to 21 MR. SHAPIRO: I have communicated -- one thing
22 add some functionality to his phone that didn’t 22 that was left out from that narrative, I have
23 previously exist. He’s not -- 23 communicated to Plaintiffs’ counsel that we are willing
24 THE COURT: That was an interesting day to do 24 to give them the phone so that they can run this other
25 it, but that’s a separate issue. 25 test on it. They have not taken me up on that.

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1 MR. VUJASINOVIC: That was an email sent to me
2 yesterday, that is correct, Your Honor. However, the --
3 there’s no guarantee that that’s going to work, number
4 one. Number two, it’s just too easy to get all these
5 text messages from the other Corps personnel devices.
6 THE COURT: Right. Let’s try that first.
7 MR. IRVINE: So I’d like to try that first and
8 -- but we’d just note, you know, we’ve got pending
9 discovery requests asking for all this information, but
10 we just don’t know when we’re going to get the text
11 messages because text messages are outside the ESI
12 orders, text messages are kind of floating around out
13 there on their own island. So that’s why I raised the
14 possibility of some court-ordered deadlines on the text
15 messages.
16 THE COURT: Well, but the deadline we have now
17 for Mr. Long’s additional ESI, which this would be, would
18 be September 14th.
19 MR. SHAPIRO: If I could address where we are
20 on this issue, Your Honor.
21 THE COURT: Yes.
22 MR. SHAPIRO: So Mr. Long is a natural resource
23 management specialist with the Corps. He’s not a
24 hydrologist; he’s not an engineer, but he has worked at
25 the dams for some time. And as I mentioned before, he
86
1 was not involved in the decision-making to raise the
2 gates during the Harvey event, and Plaintiffs have been
3 focused on this text message issue, but I really think
4 it’s a distraction.
5 We understand, having talked with Mr. Long,
6 there were some texts on his phone and we have attempted,
7 using the Cellebrite technology, to retrieve those. But
8 there’s nothing we’re hiding from Plaintiffs on this.
9 And I really think it’s become such a distraction that
10 we’ve decided we’re going to do two things. We’re going
11 to -- and this happened when Ms. Brown was in charge of
12 the case. We’re going to look at other individuals’
13 phones and take texts from those phones and hopefully we
14 can come up with some amount of texts that were sent to
15 or from Mr. Long.
16 In addition to that, we’ll try to figure it out
17 using the Cellebrite technology. That was unsuccessful.
18 I communicated to Plaintiffs, we are willing to give you
19 the phone if you want to try this other technique, have
20 at it. We have nothing to hide here.
21 The problem with speeding this process along is
22 there -- as the Court is aware, there’s a lot of other
23 things going on. In addition to that, text messages are
24 not easy to retrieve electronically. And the Court’s ESI
25 order, this is ECF --
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1 THE COURT: Well, they’re not if they’re
2 deleted. If they’re saved or if they’re not -- I guess
3 saved is not the right word. If they’re not deleted,
4 then it’s relatively easy.
5 MR. SHAPIRO: I’m talking about the text
6 messages from the other individuals that we’re looking at
7 to try to get emails to and from Mr. Long.
8 THE COURT: But it’s just that -- even the
9 Court is used to texting various and sundry people, and
10 we use it as a rapid means of communication. During a
11 relative emergency, one would suspect that Mr. Long would
12 receive instructions by text rather than email or
13 something else. That’s part of the Court’s problem. If
14 I’m wrong on those, I guess they’re assumptions, then
15 tell me, please.
16 MR. SHAPIRO: I don’t know the content of
17 those texts. What I am told, though, from our technical
18 people --
19 THE COURT: Yes.
20 MR. SHAPIRO: -- is that retrieving text
21 messages electronically is not an easy task, and the
22 Court’s ESI order -- this is ECF 74 -- says, “Text
23 messages, such as cell phone SMS messages, are ‘not
24 reasonably accessible.’” It was for that reason that --
25 THE COURT: Well, they are and they aren’t.
88
1 Anyway, it depends.
2 MR. VUJASINOVIC: Your Honor --
3 MR. SHAPIRO: We are in the process of trying
4 to get those text messages from the other individuals.
5 THE COURT: Part of the problem is you can
6 have, well, what I think of as a kind of group text and I
7 think we’re all familiar with it, and it will have a
8 series of messages, but it will eventually hit the max
9 and it will start deleting the ones or overriding the
10 ones that are the older ones. Now, I don’t know whether
11 that happened in this case or not.
12 MR. SHAPIRO: So there are computer programs
13 and this is what -- as I understand it, there are
14 computer programs that can be run, like Celebrex or --
15 Cellebrite -- the computer program that will be able to
16 take off these text messages from phones, but several
17 things had to happen. The custodian has to send in the
18 phone to the technician. As I understand it, there has
19 to be some sort of protection. You don’t want to
20 accidentally delete things off of some other phone. So
21 you want to make a copy of the certain information. You
22 have to --
23 THE COURT: Well, that’s why I was saying
24 I’m very familiar with copying. There are some things
25 that -- there is one particular thing I know that doesn’t
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1 copy, but then in any event. 1 you have in hand by or before the 3rd of August. Could
2 MR. CHAREST: We’re hearing a concern about the 2 you do that?
3 burden of the Government to get these texts together. In 3 MR. SHAPIRO: Your Honor, I attempted to
4 response to their specific discovery requests to every 4 respond by email because he asked exactly that question.
5 one of our test property Plaintiffs, every one of our 5 THE COURT: Yes.
6 test property Plaintiffs has gone back and looked for 6 MR. SHAPIRO: The individual who is heading
7 texts and done this exact same search. It is completely 7 this up at the Corps is out for several days. If I
8 doable. It is -- I mean, because the order says it’s 8 could, Your Honor, I personally think that we could --
9 difficult doesn’t mean it’s difficult, okay? It’s a 9 based on the information I currently have, that seems
10 doable thing. And the notion that it’s an impossibility, 10 like a reasonable date. I just -- I would hate to say
11 have your guy call my guy and we can get it done, you 11 yes without having talked to this individual.
12 know. 12 THE COURT: Well, I understand. What I’m
13 MR. SHAPIRO: Your Honor, if I could respond to 13 driving at is let’s say by August 2nd because I would
14 that. We have asked Plaintiffs for text messages, and 14 want to make sure that, for example, any texts that Mr.
15 some Plaintiffs have not even looked at their phones for 15 Thomas or any of the directing officials of the Corps
16 the text messages. So for Plaintiffs’ counsel to say, 16 sent to Mr. Long were available before the second day of
17 oh, it’s super easy to do, there are instances where we 17 Mr. Long’s deposition. That’s --
18 have asked this in depositions and not -- and learned 18 MR. VUJASINOVIC: For example, Your Honor --
19 that they haven’t even been asked to provide that. 19 THE COURT: Mr. Vujasinovic?
20 THE COURT: Well, that’s a different issue. 20 MR. VUJASINOVIC: Yes, Your Honor. Robert
21 That’s not an accessibility issue; that’s just the 21 Thomas, the corporate rep for next week, is one of the
22 individual Plaintiff not having looked. 22 Corps personnel with whom Mr. Long was texting. To the
23 MR. CHAREST: We’ve provided plenty of texts. 23 extent that’s --
24 I mean -- 24 THE COURT: Well, I’m making a request at this
25 MR. EASTERBY: To that point, Your Honor, that 25 point -- it’s not an order -- to Mr. Shapiro.

90 92
1 question was asked before the responses to that discovery 1 MR. VUJASINOVIC: Yes, Your Honor.
2 request were even due. I mean, they asked a question at 2 THE COURT: That, if he can, he provide any
3 a deposition about that and the responses to that 3 texts that occurred between Mr. Thomas, for example, and
4 discovery request weren’t due for another four or five 4 Mr. Long before the second day of Mr. Thomas’ deposition.
5 days. 5 That’s the request.
6 So I really feel like we’ve done more on the 6 MR. VUJASINOVIC: Thank you.
7 test properties side to get all text messages, Facebook 7 THE COURT: We’ll just -- this is kind of a fun
8 posts, social media posts, blog posts, comments, emails, 8 issue, but, you know, it’s --
9 from August 25th through apparently the present time. 9 MR. CHAREST: It’s not the main issue, to be
10 It’s been extremely difficult and invasive on these 10 sure.
11 Plaintiffs, and they are a little bit grumpy and upset 11 THE COURT: It’s not the main issue.
12 that Richard Long, the dam tender, his text messages 12 MR. CHAREST: Speaking of issues, sir, I’ve
13 are just gone. I don’t know what’s in there, but it 13 looked at the list, I think we’ve managed to sneak in all
14 doesn’t -- it doesn’t look good. It doesn’t look good. 14 of my personal requests into your list. So --
15 So we want to just run it to ground. If there’s nothing 15 THE COURT: We tried.
16 there -- 16 MR. CHAREST: So I think -- I mean, to my mind,
17 THE COURT: Well, it doesn’t, but that doesn’t 17 we’ve achieved your list, but -- I don’t have anything
18 mean there’s anything nefarious going on. 18 else personally.
19 MR. EASTERBY: That’s true, but we don’t -- 19 THE COURT: Well, my question always is whether
20 we’re like Henry Kissinger. We want to, you know, trust 20 or not counsel -- this is really for the benefit of
21 and verify. 21 counsel; it’s not for the benefit of the Court. The
22 THE COURT: We’re about to verify. But I heard 22 Court’s just trying to keep this proceeding on schedule.
23 Mr. Vujasinovic ask that we have some deadlines. I would 23 But, Mr. Shapiro, have we done everything today
24 ask Mr. Shapiro if you could make the texts available 24 that we ought to have done or should do?
25 from those correspondents, if you will, of Mr. Long that 25 MR. SHAPIRO: I believe we have, Your Honor.

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1 THE COURT: Okay. I’m sorry to make lists, but 1 CERTIFICATE OF TRANSCRIBER
2 it’s just helpful to be a little more organized so we’re 2
3 not wandering around and kind of coping with each other 3 I, Elizabeth M. Farrell, court-approved
4 in a hopscotch way. 4 transcriber, certify that the foregoing is a correct
5 Now, if -- the Court will make itself available 5 transcript from the official electronic sound recording
6 on the days of Mr. Long’s deposition, but our next -- 6 of the proceedings in the above-titled matter.
7 let’s see when we’re scheduled again. The next one is in 7
8 Washington if I recall correctly. 8
9 MR. CHAREST: Right, and not until I think 9
10 October 15th, Your Honor, is the current schedule. 10 DATE: 7/25/2018 S/Elizabeth M. Farrell
11 THE COURT: Right. And if we have to have 11 ELIZABETH M. FARRELL, CERT
12 something, the Court would prefer it to be telephonic so 12
13 that we’re not -- I’m not asking counsel to travel and 13
14 I’m not traveling. 14
15 MR. CHAREST: I keep waiting for my invitation 15
16 to D.C. I guess I’ll have to wait until October. 16
17 THE COURT: Well, you’ll get it. It will 17
18 happen. 18
19 MR. CHAREST: Very well. 19
20 THE COURT: But, anyway, I think my trial 20
21 schedule -- I have a trial just before and I have a trial 21
22 just after, but that particular date is kept. And those 22
23 trials are in the District, so I’m not going to be gone. 23
24 Okay. Mr. Shapiro, how are you doing taking 24
25 over for Ms. Brown? 25

94
1 MR. SHAPIRO: I’m doing okay.
2 THE COURT: You always cope. Okay.
3 MR. IRVINE: And we don’t need an order on
4 this, but if he could bring a few more --
5 THE COURT: What? I’m sorry, Mr. Irvine.
6 MR. IRVINE: If he could bring a few more
7 lawyers with him at the next hearing, we wouldn’t feel
8 like we’re outnumbering him and ganging up on him so
9 much.
10 THE COURT: He can cope.
11 MR. SHAPIRO: It’s where I feel most
12 comfortable.
13 THE COURT: Yes, it’s just conservation of
14 resources being applied.
15 All right, well, in any event, if the parties
16 think that we can usefully have a session between now and
17 mid-October, then please give the Court notice and we’ll
18 try to schedule something, but we’ll try to do it
19 telephonically.
20 MR. CHAREST: Appreciate that. Thank you, sir.
21 THE COURT: All right. Thank you very much.
22 (Whereupon, at 11:45 a.m., the hearing was
23 adjourned.)
24
25

24 (Pages 93 to 95)
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A 35:12 apparently 76:2 20:6 24:21,25 71:10 73:10 86:22

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adduced 77:22 anticipated 11:21 51:1,5,21,24,25 automatically 49:11 bellwether 67:3
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34:1,2,5,10,14 apologize 26:3 asking 17:3 19:22 aware 26:4 42:17 better 10:9,10 59:7
big 12:11 66:13

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67:15 case 4:4 9:9,19 4:15 6:13,15 7:8 claiming 18:19 68:18
bigger 46:12 62:9 10:17,17 11:17 7:15 8:12,13 9:12 claims 1:1 28:5,6 communicated
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care 78:21,23 Charest 2:4,6 4:12 30:3 communicate 24:18 contending 79:15
carry 31:11 63:20

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content 52:1,5 87:16 17:17,23 18:5 23:4 37:6,8,16,19,21 court-approved 71:10 72:3 91:10
contention 33:5,11 24:2 38:3,23 39:1,1,4,7 95:3 93:22 95:10
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coordination 64:17 67:11,12 69:19 54:4,9 55:1,5,9,12 35:21 36:5 56:23 dcharest@burnsc...
76:1,13 79:6 74:20 75:10,19 55:16,19,23 56:3 60:13 70:5 2:10
cope 94:2,10 77:14 78:18,24 56:13,15,20,22 created 43:15,16,17 deadline 55:21 81:1
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85:5,23 91:7,15,22 7:25 8:5,7,15,17 70:14,24 71:4,24 54:25 55:22 56:1 71:15 86:1
correct 8:22 14:21 8:20 9:5,11,19,21 72:6,9,12,18,18 decisions 61:8 68:21
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correspondents 31:10,19,24 32:4,7 91:5,12,19,24 92:2 Daniel 2:4 4:12 deleted 80:15 81:10
90:25 32:9,13,20,24,24 92:7,11,15,19,21 data 14:3 15:12 81:25 83:21 87:2,3
cost 9:2 12:2,2,10 32:25 33:1 34:8 93:1,5,11,12,17,20 39:22 72:20 84:9 deleting 88:9
13:15 17:4,10,10 35:6,15,16 36:14 94:2,5,10,13,17,21 date 6:18 7:11 37:18 delineate 31:6
39:21 56:8 59:24

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delineated 31:7 destroy 84:2,18,19 78:16 93:24 94:1 dropped 25:16

demarcation 48:10 destroyed 24:8,12 discussed 54:12 DOJ 7:20 67:11 due 7:7 49:4 55:3
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depends 88:1 20:17 23:3,14 48:13 24:3,6,7,20 26:4 duplication 61:12
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66:21 67:17 71:6,7 digest 6:12 document 5:24 dot 41:8 ECF 55:18 86:25
71:11,12,22 73:11 directing 91:15 20:13 39:17 42:13 double 39:25 87:22
73:14,16 74:5,20 direction 6:25 27:12 44:10 doubling 71:22 economist 12:5
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77:19,20,22 78:11 directly 15:9,9 19:5,15,17,18 22:3 Downstream 3:23 EDWIN 2:20
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depositions 6:3,22 disclosed 47:23 48:22,25 49:3,25 60:16 61:7 64:16 eight 38:15
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design 29:24 35:3 34:17 36:17 39:17 25:2,7 29:22 37:7 drawer 24:10 Elizabeth 1:25 95:3
designated 30:2 44:1 48:23 49:17 39:16 40:6 41:16 Drive 3:6 95:11
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designation 10:22 73:23 74:1 85:9 53:20 56:18 67:16 72:22 49:25 50:11 56:1,5
designations 33:15 89:4 90:1,4 69:25 76:13,20 driveways 14:10 72:19 80:4 85:1
designees 6:3 discrete 41:17 43:1 80:18,23 84:4,17 driving 91:13 87:12 91:4
email-based 54:23

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs v. USA 7/24/2018

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email-related 55:21 event 13:5 15:12 14:15 15:23 21:24 feedback 36:12 FLOOD-CONTR...
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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs v. USA 7/24/2018

[105]

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs v. USA 7/24/2018

[106]

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs v. USA 7/24/2018

[107]

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs v. USA 7/24/2018

[108]

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs v. USA 7/24/2018

[109]

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs v. USA 7/24/2018

[110]

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