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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: KATRINA CANAL BREACHES CONSOLIDATED LITIGATION CIVIL ACTION NO. 05-4182 K2 JUDGE DUVAL PERTAINS TO (Robinson, No. 06-2268) - AND UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE: KATRINA CANAL BREACHES CONSOLIDATED LITIGATION CIVIL ACTION NO. 05-4182 K2 JUDGE DUVAL FILED IN: 05-4181, 05-6324, 06-2278, 06-4931, 06-5937, 05-4182, 05-6327, 06-2287, 06-5032, 07-1271 05-5237, 06-0225, 06-4065, 06-5159, MAG. WILKINSON 05-6073, 06-0886, 06-4389, 06-5161, II) 05-6314, 06-1885, 06-4634, 06-5260, MAG. WILKINSON

(V O L U M E

Deposition of MELVIN M.L. MCELWEE, SR., given at the Law Office of Joseph M. Bruno, 855 Baronne St., New Orleans, Louisiana 70113, on April 24th, 2008. REPORTED BY: JOSEPH A. FAIRBANKS, JR., CCR, RPR CERTIFIED COURT REPORTER #75005

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APPEARANCES: REPRESENTING THE PLAINTIFFS: BRUNO & BRUNO (BY: JOSEPH M. BRUNO, ESQUIRE) (BY: SCOTT JOANEN, ESQUIRE) 855 Baronne Street New Orleans, Louisiana 70113 504-525-1335 - and SHER, GARNER, CAHILL, RICHTER, KLEIN & HILBERT, L.L.C. (BY: MATTHEW CLARK, ESQUIRE) 909 Poydras Street, 28th Floor New Orleans, Louisiana 70112 504-299-2100

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 REPRESENTING THE UNITED STATES OF AMERICA: 17 UNITED STATES DEPARTMENT OF JUSTICE, 18 TORTS BRANCH, CIVIL DIVISION 19 (BY: PAUL LEVINE, ESQUIRE) 20 P.O. Box 888 21 Benjamin Franklin Station 22 Washington, D.C. 20044 23 202-616-4289 24 25
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REPRESENTING THE U.S. ARMY CORPS OF ENGINEERS. CORPS OF ENGINEERS, OFFICE OF COUNSEL (BY: JENNIFER LABOURDETTE, ESQUIRE) 7400 Leake Avenue New Orleans, Louisiana 70118-3651 504-862-2843

EXAMINATION INDEX EXAMINATION BY: MR. TREEBY ...............................371 MR. LEVINE ...............................413 MR. BRUNO ...............................483 MR. TREEBY ...............................488 EXHIBIT INDEX EXHIBIT NO. PAGE EXHIBIT 39 ...............................417 EXHIBIT 40 ...............................426 EXHIBIT 42 ...............................432 EXHIBIT 43 ...............................434 EXHIBIT 44 ...............................448 EXHIBIT 45 ...............................457 PAGE

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1 2 3 4 5 6 7 REPRESENTING WASHINGTON GROUP INTERNATIONAL: 8 STONE PIGMAN WALTHER WITTMANN, L.L.C. 9 (BY: WILLIAM D. TREEBY, ESQUIRE) 10 546 Carondelet Street 11 New Orleans, Louisiana 70130 12 504-581-3200 13 14 REPRESENTING ORLEANS LEVEE DISTRICT: 15 SUTTON LAW FIRM 16 (BY: CHARLES E. SUTTON, JR., ESQUIRE) 17 2101 N. Highway 190, Suite 105 18 Covington, Louisiana 70433 19 985-249-5991 20 ALSO PRESENT: KEA SHERMAN, ESQ., NICOLE 21 BOYER-DUPLASS, ESQ., CHARLES LANIER, ESQ. (VIA 22 I-DEP), KIRK AURANDT, ESQ. (I-DEP) 23 VIDEOGRAPHER: 24 GILLEY DELORIMIER (DEPO-VUE) 25

STIPULATION IT IS STIPULATED AND AGREED by and among counsel for the parties hereto that the deposition of the aforementioned witness may be taken for all purposes permitted within the Federal Rules of Civil Procedure, in accordance with law, pursuant to notice; That all formalities, save reading and signing of the original transcript by the deponent, are hereby specifically waived; That all objections, save those as to the form of the question and the responsiveness of the answer, are reserved until such time as this deposition, or any part thereof, is used or sought to be used in evidence. * * *

JOSEPH A. FAIRBANKS, JR., CCR, RPR, Certified Court Reporter in and for the State of Louisiana, officiated in administering the oath to the witness.

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MELVIN M.L. MCELWEE, SR. 14154 Rev. Joseph White Road, Independence, Louisiana 70443, a witness named in the above stipulation, having been first duly sworn, was examined and testified on his oath as follows: EXAMINATION BY MR. TREEBY: Q. Good morning, Mr. McElwee. I have a few more questions for you. In fact, to begin the day I handed you an exhibit that we're going to -- that I have already marked, I believe, Exhibit 36. And it is simply a street map of New Orleans, and I gave it to you ahead of time so that you could attempt to look at -I didn't instruct you this, so you may need to do that now, look for Florida Avenue, just below the Florida Avenue bridge. A. Yes, sir. Q. Do you see that? A. Yes, sir. I see that. Q. It's below the Gulf Intracoastal Waterway? A. Yes, sir, it is. Q. Okay. And I'm going to ask you, carefully, if you will, to put an X on the map at the place where Florida Avenue intersects
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MR. BRUNO: Yeah, yeah, if you let me just check it. I think he said a mile and a half. This is ridiculous. MR. TREEBY: I think it will be quicker for the witness to do it than for us to stipulate, that's why -MR. BRUNO: I don't know. A stipulation is always better. MR. TREEBY: Well, I don't know if it's better. MR. BRUNO: Well, I'm going to tell you right now -MR. TREEBY: But you know what? I want this witness to say it. Okay? MR. BRUNO: All right, then fine. Then you're going to stipulate that he's an expert in charting and graphing and all that?
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with the Inner Harbor Navigational Canal. A. Is it okay in ink? Normally we write on maps in pencil. Q. No, in ink. I want this in ink. Be careful. With a little small X. A. Yes, sir. Q. Okay. And then I want you to put an X where Dwyer Road intersects with the Inner Harbor Navigational Canal. A. Dwyer Road doesn't intersect with it. But I'll project a line to it. Q. Yeah. Right. The site of the work that you did. A. Yes, sir. Q. Have you done that? A. Yes, sir. Q. The scale of that map, and I have a scale here, is -- as I read it, it's an inch and 3/16ths per mile. Can you see that up there? Check it and see if I'm right. MR. BRUNO: Bill, we can stipulate to this. MR. TREEBY: Okay, you stipulate -- will you stipulate that it's two miles?

MR. TREEBY: No. MR. BRUNO: Then it is what it is. All right, it's three and three quarter inches. Right? Do we agree? Can we stipulate? MR. TREEBY: It's actually three and thirteen-sixteenths, but that's okay. MR. BRUNO: No, it's not, because you asked him to make the mark, and so you're stuck with his marks, not your marks. And since you haven't even bothered to look at this you don't know if it's -if you want to come look at it, you can, but I'm putting the small end at one X, and I got three and three quarters based on his marks, which is why, you know, it's kind of silly, because if you move the mark a little bit you're going to change it by a large distance. Right, Bill? MR. TREEBY:

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No, I don't agree. Would you give the witness back the exhibit, please? MR. BRUNO: So that's -MR. TREEBY: Mr. Bruno, would you give the witness back the exhibit? MR. BRUNO: One second. I get -MR. TREEBY: Would give the witness back the exhibit? MR. BRUNO: One second. I get 2.75 -MR. TREEBY: I would ask you, Mr. Bruno, to give the witness back the exhibit. MR. BRUNO: I get almost 2-point -- I would say 2.8 miles is what I would get. MR. TREEBY: Okay. Well, that's fine with me. 2.8 miles. EXAMINATION BY MR. TREEBY:
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A. Yes, sir. Q. And in fact, part of your job was to demolish a portion of the floodwall. A. Yes, sir. Q. I read somewhere, but correct me if I'm misremembering it, that it was about three hundred lineal feet of the floodwall that was demolished. A. No, sir. Q. That's not correct? A. That's inaccurate. Q. How much of the floodwall was demolished? A. It was a forty feet section. We had to come through the wall with three 84-inch diameter tubes, and those three tubes were pretty close in proximity. So it was nowhere near three hundred feet of wall we took out. Q. Okay. And how much of the floodwall was demolished in order to put in the access gate? Wasn't there an access gate to the project? A. There was an access road. The road was a diversionary road that went around the floodwalls and come through the floodwall for
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Q. Do you agree with that? Do you agree with Mr. Bruno? A. I agree with Mr. Bruno, and in accordance with this map, that's what that distance is, which is a different map than what I looked at yesterday. Q. Right 2.8 miles. A. Yes, sir. Q. Okay. That's all with that exhibit. That's all I need. Now, let me ask you this: And if you could hand me back my scale. A. Yes. Q. Thank you so much. How, if you would, best you can estimate -- and you probably have a pretty good recollection of it. The excavation that you did at the Dwyer Road project? A. Yes, sir. Q. The closest end of that excavation to the floodwall, how close was it to the floodwall? A. It was through the floodwall. Q. Okay. So it went all the way through the floodwall.

traffic. Q. Right. And that portion of it that came through the floodwall required a demolition of the floodwall, did it not? A. That's correct. Q. Okay. And how much of the floodwall was demolished for that? A. Without -Q. Approximately? A. Approximately maybe, I think -- I'm saying twenty something feet. Q. Okay. And how deep was the excavation that you did? A. For the access road? Q. No. No. How deep was the excavation that you did for the Dwyer Road project? A. Somewhere in the proximity of 26 to maybe 30 feet. Q. Deep? A. Yes, sir. Q. Was that below the grade -A. Yes, sir. Q. -- of the batture? A. That's below the grade of the existing batture.

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Q. Okay. Now, Mr. Bruno raised this already this morning to some extent: You have, if I remember correctly, but you can testify to this from your CV, that you went to -- you've gone to at least two different universities; is that correct? A. That's correct, yes, sir. Q. One of them you, I believe, attained the status, if you will, of a junior. Is that correct? A. At that time, when that résumé was made, yes, it was a junior status. Q. And what university was that? A. That's the University of New Orleans. That's on the first CV. During my early on curriculum. On the second CV I attained the status of a senior. Q. Okay. And what was the course of study you took at the University of New Orleans? A. Civil engineering. Q. And how did you come to the conclusion that you had the status of a junior at that point from UNO? A. Looking at my transcript and my
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order to express my, um -- upgrade in rank I was a dual enrollment in mathematics, taking a lot of the courses that I already had from UNO and just transferring them over to Excelsior towards a mathematics degree, with a couple of courses left to complete a degree in mathematics. Q. Okay. Now, on this Dwyer Road project, you, or your firm, and -- well, did your firm hire any geotechnical experts? A. Yes, sir. Mr. J. Michael Dixon is the expert. Q. That was Mr. Dixon? A. We talked about him thoroughly yesterday. Q. He was a geotechnical soils type expert? A. He was a geotechnical expert. Q. And would I be correct to say you do not consider yourself a geotech expert? A. No, I'm not a geotech expert. Q. Okay. I show you a document that we have marked -- that I've marked McElwee Exhibit 38. And I will represent to you, and subject to being corrected by Mr. Bruno and Mr. Joanen
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records of grades during that process. Q. Do you have that transcript, by the way? A. I don't have it here, but I do have it, yes. Q. How many hours did you take in civil engineering? A. Um -- there's a hundred and twenty-something hours. I'm thirty hours shy now. Q. How many shy were you when you classified yourself as a junior? A. I'd have to look at my transcript. I can't answer that right now. Q. Okay. A. And I didn't classify myself. I mean, it was the university telling me on that academic record what my status was. Q. Where is Excelsior College? Albany, New York, it says. Are you attending there in person, or did you attend there in person? A. No, not actually. Excelsior College does online courses and things like that, and at the time I was in the National Guard, and in

or anyone else, and I hope I'm right in what I'm saying, that I have extracted from the Independent Levee Investigation Team report the pages that refer to you. A. Yes, sir. Q. Have you read those pages before, that refer to you? A. Um -- as I mentioned to you yesterday, the first time I read it was when you requested discovery documents, and you mentioned in your request that McElwee was in the levee investigation team report. Up until you notified me via that, I never knew it was there. I didn't know. Q. But after I -- I understand the timing, but after I notified you am I correct that you in fact have read those pages that refer to you? A. Yes, I went specifically the Page 6-18, and I saw McElwee Construction, and I was -Q. Okay. And can you remember looking for any pages that had your name on them? A. Prior to that request for discovery? Q. No, no. I'm saying at any time.

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Including after that. A. Yes. Yes. Afterwards. I went straight to this page. You referred it in your request for discovery, and I went to that page and saw McElwee. I haven't really looked through any of the rest of the report to see if there was McElwee anywhere else, but I did find that page, Page 6-18. Q. Okay. I have tried to elicit from you, both in documents and we have not yet been able to get and review the IKON documents because, as you know, I just learned about this other CD that you're going to provide me, or that is now available to me, yesterday afternoon, and I have not yet been through them. Okay? So with that exception, I have tried to look at everything that you have given to me, and I've listened carefully to your testimony regarding your communications with Bob Bea. Do you know of any communications that we have not discussed or I've not asked you about between you and Bob Bea? A. Written communications, you have them all. I mentioned yesterday, and I'll say it
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for you yesterday. Q. And I did ask about telephone conversations. I have not and I'm not going the sit here and go through and say, what did you remember on this day and that day. I'm not going to do that. A. Yes, sir. Q. That would be fruitless. But I did ask you whether in any of those telephone conversations Dr. Bea told you he was recording the conversation, and you said no. A. He never told me that he was recording the conversation. Q. Okay. If you look at the map that I gave you, which is Exhibit 36, you have marked Florida Avenue? A. Yes, sir. Q. And I'm sure you can see, down to the south of that, the Claiborne Avenue bridge. A. Yes, sir. Q. Okay. I can represent to you that the southern -- there were two breaches in the floodwall as a result of Hurricane Katrina, or during Hurricane Katrina, between those two points.
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again today, Dr. Bea and I talked on the telephone quite a bit. I have had a chance since yesterday to look at the time frame. I can't nail specifics down, but it was the later part of 2005 Dr. Bea and I began to speak, around October, a little before then. And I say a little as maybe a week or two. We held some extensive telephone conversations during that time frame. I haven't looked at the telephone records. I did find out that the -as time evolved, in the January, 2006 time frame, I think it was close around January 16 or 17th, McElwee Brothers reserved a conference room at the Rockwood Inn Suites in Hammond, Louisiana, to meet with Dr. Bea initially. That was the first meeting -- face-to-face meeting. Um -- and then I looked at the other time frame, and my daughter's birthday, December 12th, 2006, was the second meeting. We've talked on the phone, um -- quite a bit from the what, third quarter of 2005 up until now, on telephone, and then with the communications that I've given to you earlier with the CD at IKON. And still until recently with the IKON document disk I said is available

A. Yes, sir. Q. One is known as the northern breach, one is known as the southern breach. Are you familiar with that terminology and those kind of -- generally, at least, those locations of those breaches? A. As you defined breaches in that particular section I'm familiar with that, but when you said breach to me, breach and any overtopping and anywhere in the levee system throughout New Orleans is what I was thinking of yesterday. Q. Right. But I'm talking now in those two areas. You kind of generally know where those two breaches were. A. Yes, sir. Q. Okay. Am I correct you did not ever tell Professor Bob Bea that you dewatered an excavation immediately north of the southern breach in the Inner Harbor Navigational Canal in the East Bank Industrial Area that we've just described? A. I can tell you I told Dr. Bea we excavated at Dwyer Road. The discussions of anything else I can't answer to that. But I

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can tell you we excavated at Dwyer Road and he was well informed of that. Q. And just to make sure, isn't it true that you did not tell Dr. Bea that you had witnessed massive underseepage flow through the marsh deposits that were not adequately cut off immediately north of the southern Inner Harbor Navigational Canal breach? A. I can attest to you that where we excavated at Dwyer Road, there was seepage. That's all I discussed with him. Q. But I just need to make sure that you did not tell him that you had witnessed massive underseepage flow through the marsh deposits that were not adequately cut off immediately north of the southern Inner Harbor Navigational Canal breach. A. I want to answer this with an abundance of caution. I told you Wednesday several telephone conversations. You asked me about him taping me or whatever, and I can't say what I've said at that time. I don't want to sit here and tell you I didn't say that and I possibly said it in a telephone conversation. I'm not saying I did or I didn't. I'm just -Page 388

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that I get an answer to my question. You could have encountered underseepage and ponding of waters without doing any work, just driving down the street. In fact, you've told us because of your training -A. Yes, sir. Q. -- when you're driving along River Road you notice ponding and underseepage. A. Yes, sir. Q. So my question, listen carefully to it, you did not tell Professor Bea, did you, that you encountered underseepage and ponding of waters along the Inner Harbor Navigational Canal frontage at the west edge of the Lower Ninth Ward, did you? A. I have to answer that with an abundance of caution. I've been in the Ninth Ward area quite a few times, and I have been around in those areas prior to the breaches, and I don't know if I ever told him about those. I can't recollect that I said that, no. I can't. MR. BRUNO: That's fine. That's all he has to say. If he says he can't
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I don't know. Q. By the way, I told you yesterday, I'd just want to remind you, I don't have any such tapes. I don't know of any such tapes. Okay. A. I hate to incriminate myself and then tapes pop up and that's what's on the tapes. And I'm not aware of that at this time. Q. You know that the Lower Ninth Ward is below the Gulf Intracoastal Waterway do you not? A. Yes. Q. Okay. Did you not tell Professor Bea, did you, that you encountered underseepage and ponding of waters along the Inner Harbor Navigational Canal frontage at the west edge of the lower Ninth Ward, did you? A. I don't recall telling him that, no. Q. If you had told him that, that would not be true, would it? A. I've answered your discovery requests. I didn't do any work in that area, period. McElwee Brothers didn't do any work in that area. Q. Encountering underseepage might not involve you doing work, so I need to be careful

recollect -MR. TREEBY: Your commentary is unnecessary. MR. BRUNO: No. I'm not going to let you berate this witness? Okay? MR. TREEBY: Let's get the magistrate on the phone. MR. BRUNO: That's a good idea. Damned good idea. Get him on the phone. And I also want you to mark this part of the deposition. I'm want to read back the last ten questions to the judge. MR. TREEBY: I've got it. MR. BRUNO: Good. (Whereupon the magistrate was called.) MR. TREEBY: Your Honor, he also needs to read -- or Joe, why don't you come

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look over my shoulder, because I have the transcript here. I will read the transcript from the point Joe wanted it read, because we talked about it before we got you on the line. And I'm concerned -- I can tell you my concern, but then I'll just read it. My concern is that -- and Joe doesn't think this is a critical point of the deposition, to me it is. We're almost finished with this witness. It's Melvin McElwee who was referred to by Professor Bea in the what Professor Bea calls the Independent Levee Investigation Team report as a source for information that he uses in his report. And so I'm almost finished with the deposition, my part of the deposition, and beginning -- here's where Joe says we should begin, and it's fine with me: My question -these are my questions and his answers -- I'm sorry, the witness's answers. "And just to make sure, isn't it
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telephone conversations. You asked me about him taping me or whatever, and I can't say what I've said at that time. I don't want to sit here and tell you I didn't say that and I possibly said it in a telephone conversation." MR. TREEBY: And then he continues, "I am not saying I did or I didn't, I'm just -I don't know." Question: "By the way, I told you yesterday, just to remind, I don't have any such tapes. I don't know of any such tapes. Okay?" Answer: "I let --" THE REPORTER: "I hate to incriminate myself and then tapes pop up and that's what's on the tapes. And I'm not aware of that at this time." MR. TREEBY: Question: "You know that the lower Ninth Ward is below the gulf intracoastal waterway, do you not?" Answer: "Yes."
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true that you did not tell Dr. Bea that you have witnessed massive underseepage flow through the marsh deposits that were not adequately cut off immediately north of the southern Inner Harbor Navigational Canal breach." Answer: "I can attest to you that where we excavated at Dwyer Road there was seepage, that's all I discussed with him." Question: "But I just need to be sure that you did not tell him that you had witnessed massive underseepage flow through the marsh deposits that were not adequately cut off immediately north of the southern Inner Harbor Navigational Canal breach." Answer: "I want to answer this with an abundance of caution. I told you Wednesday," and there the transcript is not -THE REPORTER: "I told you we had several

Question: "Okay. Did you not tell Professor Bea -- you did not tell Professor Bea, did you, that you encountered underseepage and ponding of waters along the Inner Harbor Navigational Canal frontage at the west edge of the Lower Ninth Ward, did you?" Answer: "I don't recall telling him that, no." Question: "If you had told him that, that would not be true, would it?" Answer: "I've answered your discovery requests. I didn't do any work in the area, period. McElwee Brothers didn't do any work in that area." THE REPORTER: Question: "Encountering underseepage might not involve you doing work, so I need to be careful that I get an answer to my question." MR. TREEBY: Question (cont'd.): "You could

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have encountered underseepage and ponding of waters without doing any work, just driving down the street. In fact, you've told us because of your training --" Answer: "Yes, sir." Question: "When you're driving along River Road you notice ponding and underseepage." Answer: "Yes, sir." Question: "So my question, listen carefully to it, you did not tell Professor Bea, did you, that you encountered underseepage and ponding of waters along the Inner Harbor Navigational Canal frontage at the west edge of the Lower Ninth Ward, did you?" Answer: "I have to answer that with an abundance of caution. I've been in the Ninth Ward area quite a few times, and I have been around in those areas prior to the breaches, and I don't know if I told him about those. I can't recollect that I said
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And Joe says, "I'm not going to let you berate this witness." And Mr. Treeby says: "Let get the Magistrate." MR. TREEBY: Yeah. Basically, it was, in my judgment, Your Honor, was drying to instruct the witness that he didn't need to tell me any more. MR. BRUNO: Come on. THE COURT: I'm not going to conclude that he was trying to instruct the witness not to say any more. Okay? First of all, the witness has answered your question. All right? So it's time for your next question. MR. TREEBY: And I was headed to the next question, but I don't want to -THE COURT: And second of all, Mr. Bruno, if you want to make an objection, just say objection, asked and answered,
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that, no, I can't." MR. TREEBY: "That's fine." And then -Isn't this Mr. Bruno? THE REPORTER: That's Mr. Bruno. MR. TREEBY: "That's fine. That's all he has to say." And I said -- I'm sorry. It got a little -MR. BRUNO: And you said you wanted to call the judge. MR. TREEBY: No. What does it say? THE REPORTER: "If he says I can't recollect --" MR. TREEBY: That's Mr. Bruno again. That's not me. THE REPORTER: That's Mr. Bruno again. And Mr. Treeby: "Your commentary is not necessary."

period. MR. BRUNO: Yes, Your Honor. THE COURT: And that way we won't have any question about whether you are making a suggestive or argumentative objection. Okay? MR. BRUNO: Yes, of course. JUDGE WILKINSON: When you add the three or four extra words that you just added, it starts to look like you're making an improper objection under Rule 30(c)(2). So my suggestion is don't add those extra three or four words, just say objection, asked and answered. Okay? MR. BRUNO: Yes, of course. JUDGE WILKINSON: Now -MR. TREEBY: Thank you, Your Honor.

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THE COURT: Based on what you've just read me, Mr. Treeby, he's answered your question. Go to the next one. MR. TREEBY: I am going to my next one, but all I needed was that instruction because I think that will solve our problem. That's what we did yesterday, just objection. And unless Mr. Bruno asks me for an explanation of my objection, I just said objection leading, or whatever the objection was. THE COURT: And for these, that's all I want you to do. Okay? MR. TREEBY: Thank you. THE COURT: All right. MR. BRUNO: Judge, while I've got you, there's another issue. MR. TREEBY:
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reached, then I'm going to have a different opinion. MR. TREEBY: If your Honor please, just in an abundance of caution, it should be noted that Mr. Bruno -- I was going to notice this deposition, Mr. Bruno did notice the deposition, and he's entitled to, and he took three hours and forty-six minutes, and I've been going a lot less time than he did on -MR. BRUNO: Bill, we're almost a seven hours. Now do the math. Okay? Three and a half and three and a half is what? Seven. MR. TREEBY: I have 3:46. MR. BRUNO: Fine. I had fifteen minutes more than you, so don't act like I've had all this extra time. I'm just trying to make the point that the government hasn't had a chance to ask a single
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Is this on the record? MR. BRUNO: Yes, this is on the record. Judge, I want to just address this now because we're about seven hours? Close. Let's just say we're close to seven hours without getting into it, Judge, and the United States has not had a chance to ask any questions. I just want to let you know about -because the CMO says there's a maximum of seven hours, and I'm quite certain that we can work this out among ourselves, but I just wanted to alert you that there will be times when we may go or may need to go beyond seven hours. Is that -THE COURT: Well, if a stipulation can be reached that you go beyond it, it's all right with me. MR. TREEBY: Yeah. The circumstances here -JUDGE WILKINSON: But if no stipulation can be

question, and we're very likely to go beyond seven hours. Okay? MR. TREEBY: You just wanted the Court to be aware of the circumstances. MR. BRUNO: And I'm making you aware of it because I'm doing a deposition of Mr. Treeby 's client on Saturday in Coco Beach, I know you won't be around, and they've told me seven hours is all you get. And, you know, because this is a 30(b)(6), I don't know -- I'm going to work my darnedest to finish before seven, I can assure you, I want to go get a drink, but if we can't I want to alert you that it may be a problem. That's all I'm doing. MR. TREEBY: And we're not asking any questions of that witness. THE COURT: All right. MR. TREEBY:

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Thank you. MR. BRUNO: Thank you, judge. (End of conference with the court.) MR. BRUNO: So your question has been answered, which is the point I made. Let's go. MR. TREEBY: Make your objection. MR. BRUNO: I will make my objections, Bill. MR. TREEBY: Thank you. MR. BRUNO: Okay? And you will not ask the question fifty thousand times, as the Court has just indicated to you. All right? You've got your answer. EXAMINATION BY MR. TREEBY: Q. Now, again, Mr. McElwee, I'm addressing the same subject but this is a different question: You did not tell Professor Bea, did you, that you had significant problems
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that he and his parents had lived in New Orleans and had been affected by Hurricane Betsy, is that right? A. I recall him telling me someone was affected. Who? I can't remember all the details. Q. Okay. Now, written in your written response to our discovery request Number 6 in the subpoena, you -- and you want to find that? A. Is this Exhibit 17 we're looking at? Q. You have to forgive me, I don't remember the exhibit number, but it's your written response to our discovery. Okay? A. I think I had two -- only one response or two responses? Q. I think that's the written response. A. Yes, sir. Q. And it would be Request Number 6, your response to Request Number 6. A. Yes, sir. I have it in front of me. Q. You indicated that, and I think I'm quoting, quote, McElwee Brothers has conducted dewatering procedures along the Industrial Canal 's east bank north of the Florida and Claiborne Avenues, close quote.
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with dewatering of excavations along this same frontage at the west edge of the Lower Ninth Ward, did you? A. I do not recollect telling Dr. Bea that question. I don't recall telling him that. Q. But you didn't do any excavations at the west edge of the Lower Ninth Ward, isn't that correct? A. That is -MR. BRUNO: Asked and answered. A. Correct. MR. BRUNO: Four times. MR. TREEBY: Let's go off the record. (Off the record.) EXAMINATION BY MR. TREEBY: Q. You understood, did you not, from talking to Professor Bea that he was familiar with New Orleans geography, right? A. I understood that he was -- yes, he told me he lived in New Orleans. Q. And in fact he told you, did he not,

You see that? A. Yes, sir. Q. It's not clear to me in that response, but I think it is based on your testimony and I just need to confirm it, you were referring there to the Dwyer Road pumping station project, isn't that correct? A. I was answering your question and referring to -- I didn't do any excavation in those areas, because your question specifically -- can I go back to your -- I think on your request your question was asking me about work in that area between Florida and Claiborne Avenues, and I answered that I didn't perform work between Florida and Claiborne Avenues, but the work was north of those areas, which was the Dwyer Road project. Q. Okay. That's all I need to know. So what you were referring to in your response was the Dwyer Road pumping station project. A. Yes, sir. Q. Thank you. And similarly, in your response to Request Number 7 of the subpoena, if you would look at it --

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A. Yes, sir. Q. -- you state -- and by the way, I'm not contending you didn't answer my request here. I'm just trying to clarify what you meant by your answer. Okay? A. Yes, sir. Q. Quote, McElwee Brothers has conducted excavations along the Industrial Canal 's east bank north of Florida and Claiborne Avenues, close quote. And that, as well, was referring to the Dwyer Road pumping station job, is that right? A. Yes, sir. Q. You need to wait until I finish. A. I'm sorry. Q. That way the court reporter can get both of us on the record. And you have a similar response to our Request Number 8 in the subpoena. And I'm quoting from your response: McElwee Brothers has reported underseepage, ponding or pooling of waters along the Industrial Canal 's east bank north of Florida and Claiborne Avenues, close quote. You see that?
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Canal, close quote. A. That's a fact. Q. And that's your testimony. A. Yes. Q. Have you ever been charged with a crime? A. No, sir. Q. In fact, recently you were charged with assault in Tangipahoa parish; is that correct? A. There's allegations of assault. I haven't been -Q. Charged. A. Charged with assault. Aggravated assault, yes. Q. Is that pending? Is that matter pending somewhere? A. It's pending. I have an arraignment on May the 9th or something like that. Q. And someone alleged, did they not, if you know, if you know, that you had -- in connection with a meeting that was taking place of the advisory committee of the Tangipahoa Parish School Board, alleged that you had pulled out a gun.
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A. Yes, sir. Q. And that, as well, was referring to experience you gained at the Dwyer Road project, is that correct? A. That's correct. Q. To the best of your recollection, did you ever tell Professor Bea that residents of the neighborhood near the northern Inner Harbor Navigational Canal breach, which is between N. Claiborne Avenue and Florida Avenue, had reported problems with seepage at the inboard toe? MR. BRUNO: Object to form. A. I can't recollect making that statement. EXAMINATION BY MR. TREEBY: Q. Okay. In fact, your written response to the subpoena, Request Number 10, states, correct me if I'm wrong, quote, McElwee Brothers have not received any complaints or expressions of concern from residents of the Lower Ninth Ward and/or St. Bernard Parish neighborhoods concerning underseepage, ponding or pooling of waters along the Industrial

A. What is what the person stated. Q. And when you were I guess arraigned for that charge -A. I haven't been arraigned yet. I'm thinking arraignment is when I go in front -Q. Were you arrested? A. I'm not familiar with criminology terms. Let me -Q. I'm not either. A. The reason I'm answering this is, the police -- the detective came to the house and requested to talk to me, and I went and turned myself in. Q. Okay. A. And at that time they said, look, we're going to walk you through and you'll go home. And that's what happened. I signed myself out on my own recognizance. So have I been arrested? I guess the definition is -did they come by handcuff me in front of anybody? No. Q. That was not -- you went and turned yourself in. I understand that. A. Yes, sir. Q. In fact, when you did, they indicated

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to you that there was an outstanding warrant for you in connection with a charge for the issuance of bad checks, is that -A. Yes, sir. They sure did. In fact, that has been cleared because they had the wrong person. I went to them and asked them to show me a copy of the check and the charge, and the sheriff department said -- they showed it to me, and I laughed and I showed them my military ID and the Social Security number on the check, it didn't match, and they -- I asked for a copy of the charge sheet. They say, we can't give you that but we'll give you a copy of the check. Q. Glad to hear that. Thank you for answering my questions. A. Yes, sir. Q. The only thing I would do at this point is reserve the right, and I hope it won't be necessary, I don't think it will be, but I have not seen the documents that you referred to yesterday that we're going to access at IKON. If any of them are things that I didn't know about before, I reserve the right to re-notice the deposition. And I'm sure it will
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I asked for it first. A. You both asked for it. And this is the course that was taken by the Corps of Engineers earth work quality verification, the three-inch binder. (Brief interruption.) A. Located in front of Mr. Bruno is the three-inch binder referenced yesterday in my deposition of the earth work quality verification course sponsored by the Corps of Engineers. I will have that document -- that binder delivered to IKON for copies to anyone in this deposition room and on the Internet at their expense. MR. TREEBY: And my reservation would apply to that, too, although I doubt it would require any questions. I tender the witness. (Brief recess.) EXAMINATION BY MR. LEVINE: Q. Mr. McElwee, my name is Paul Levine. I'm an attorney for the United States. I apologize if I say your name wrong. A. That's okay.
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reach opposition, but anyway -- hopefully we'll never have to deal with that, but I wanted to reserve my right on the record. A. Yes, sir, I do want to mention that -MR. BRUNO: Yeah, I'm going to get into to this. THE WITNESS: You're going to get into that? MR. BRUNO: When they're done. EXAMINATION BY MR. TREEBY: Q. Well, there is apparently -- what are you referring to, you brought more -A. This is the three-inch binder that Mr. Treeby asked for. MR. BRUNO: I asked for it. MR. TREEBY: I asked for it. MR. BRUNO: I asked for this. MR. TREEBY: I did, too. MR. BRUNO:

Q. I just want to cover a couple of pieces of your testimony from yesterday. Yesterday I think you were talking about some underseepage issues you had at the Dwyer Road project. Is that correct? A. That's correct, sir. Q. One of those issues was dewatering the project; is that correct? A. Yes, sir. That's correct, sir. Q. And I think what you said is there was a lack of data provided by the Corps. A. That is correct, sir. Q. You said you didn't receive the soil borings in a timely manner. A. I did not say it's the soil borings in a timely manner, there was some analysis relative to the soils borings that I didn't receive. Q. Okay. And whatever you received from the Corps, it lacked particle distributions? A. Particle size distributions of the sand layers, yes, sir, we didn't get any data on that. Or any information on that. Q. And the data provided from the Corps was too far from the excavation site.

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A. One of the borings in the plans was too far away from the T-wall. Q. And I think you said that boring was about 160 feet away from the T-wall? A. It was somewhere approximately 165. That's what the record reflects. Q. And I believe you said, and correct me if I'm wrong, that you need to be within about 100 feet to make any conclusions about the soil quality in the area. A. That -- my recollection, that's what served me during that time, yes. Q. Okay. Now, once you received the proper information from -- what you call the proper information from Gore Engineering, you were able to set your dewatering system up. Is that correct? A. I'd like the go back and mention to you that I did mention Mr. Dixon used the worst case scenario in his design. That is how he completed the design for the dewatering system. The Gore boring came later during the problems with the cracked piles at the T-wall, when the Corps came out and said, you cracked some piles, and we was like -- and McElwee was like,
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MR. BRUNO: (Tendering.) A. I'm sorry. I can't find it in here. EXAMINATION BY MR. LEVINE: Q. Let me mark this as Exhibit 39. Do you mind passing me that copy really quickly? (EXHIBIT 39 was marked for identification and is attached hereto.) A. Yes. EXAMINATION BY MR. LEVINE: Q. Why did you obtain these borings? A. May I look over this and then give you an answer, sir? Q. Sure. A. Okay. From looking at the cover letter, yes, this was Boring Number 1 when we requested Gore to come out to do the boring was to assist with the dewatering, to complete the information not listed in the Corps of Engineers' initial boring. Q. Okay. And then you also obtained Boring Number 2 for that purpose. There appears to be two borings on there. Turn to Page -- I think it's Figure 1. It's four pages
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how do you know piles are cracked? What did you make that determination from? Q. That was a Gore boring obtained in June, 2003. A. That's correct. Q. And I believe you also obtained some soil borings from the Corps in December, 2001. A. That is correct. On the, um -- west end of the project we obtained a boring, yes, we did. Q. And what was the purpose of those borings? A. I'd have to look at the record to answer that question for you exactly. Q. Would you like a copy of the borings? A. Yes. I think we have it in an exhibit already. MR. LEVINE: I'm sorry. I don't have that. I need a copy for me. MR. BRUNO: Here, take mine. You want '03 or '01? MR. LEVINE: '01.

in. A. Yes, sir, there were two borings, B1 and B2, and I think there's a location on the Figure 1. Yes. Yes. That's correct. Q. And those borings were to -A. To assist. Q. -- help assist with the -A. Exactly. Q. -- dewatering project. A. Yes, sir. Yes, sir. (Brief interruption.) EXAMINATION BY MR. LEVINE: Q. So after you obtained these borings, you were able to set up the dewatering system. A. That is correct. Q. Once you set up that dewatering system, it ran well, is that correct? A. For that section, that's correct. Remember I told you there was four -- five sections we dewatered? None of them at the same time? This project was completed in phases. At that phase, that phase worked well. That's correct. That's Phase I. Q. Did any of the other phases -- did you have problems with any dewatering any of the

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other phases? A. Yes. Phase 4 was the area at the T-wall where I mentioned to you we have photos that show the organics and trees underneath the T-wall, and the constant "tricklation" of water inside Phase 4 -- it's Phase 4A I believe it is we called it. Q. Okay. The other three phases, though, you were able to dewater relatively well. A. I'd have -- I don't have the contract documents in front of me, and believe me it's a couple of file cabinets, I'd have to go back and look before I just -Q. Well, based on your memory today. A. I know we had trouble at Phase 4A. We had problems at Phase 3. That's where the sluice gate structure was, underneath the railroad. We, um -- soils started caving in. We almost lost the railroad section underneath, during our jacking and boring. We also had some challenges out near the dolphin structure. There was a couple of times during some storm intervals that we had some great concerns with dewatering. Some storm
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place in that area. So I was out there one afternoon while it was raining, in the rain, looking at the canal and looking at the T-wall so in case something was going wrong I could put some plans into action to notify the Corps and take and do something. Q. Now, you said you had some problems with the trees in Phase 4 -- trees and soils in Phase 4? A. Yes, sir. Q. Is that relating to the concrete piles? A. When you say in relation -- no, that's in relation to dewatering and excavation. Um -- the initial borings given by the Corps mentions some wood material -- some wood material would be found in the subsurface. However, we found trees and tree trunks. Old swamps. That's what we was digging through. And underneath the T-wall I mean. There was a section we cut out, and we have some photos showing this organic materials sitting right where I think 12-1/2 feet of sheets were underneath the existing T-wall, you could see underneath that sheet some wood and tree
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intervals. There was I think four storms that took place; Lili, Isidore, Hanna. Around that time frame we was struggling with dewatering issues. And what in particular, I'd have to pull the documents out. And I think most of the personnel that were on site at that time, like the superintendent and our quality control could give you the answers to those issues. Q. Those were tropical storms. A. That's correct. Q. So there was heavy rainfall during that time period? A. Tropical storm sitting in the gulf, threatening New Orleans, coming over New Orleans that never were upgraded in winds, but they brought high tides and they brought, um -tremendous amounts of rain. In fact, there was one storm, the National Guard was activated. I can remember this vaguely. Not vaguely, I can remember this clearly. I was activated with the National Guard at Jackson barracks, and I got away from my job at Jackson barracks to go look at the project because no one was out there and I wanted to see how the T-wall was reacting and the flood protection we had in

trunks. That's where water was trickling in, in our excavated area, and we had some challenges in trying to get that dewatered. Had to go back to Mr. Dixon to get him to revise our dewatering plan to accommodate the situation at hand. Q. And once he revised that plan, were you able to dewater the site effectively? A. We were able to get the site dewatered and perform the work in that area, yes. And when you say effectively, you'd have to define whatever effectively is to you. It was a continuous operation. It was a little bit more than Phase I. Phase I was easy. I mean, once the water table was dropped, we put some crushed stone in to work off as a platform for working bottom, and we didn't have major issues. The pump continued the roll, we didn't see ponding water in places once we got it down to the proper grade. But in areas like Phase 4A, and the different other areas I mentioned, some of those places we kept water and muck and we had to just deal with the situation and the issue a little bit more than we would in Phase I.

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Q. But you were able to get the site dewatered so that you were able to excavate it. A. We were able to get the site dewatered to excavate. Q. I think you mentioned you had some problems with the jack and bore operation, dewatering that area? A. Yes. Q. What's the jack and bore operation? A. Jack and bore operation is where you -- it's underground work, underground utility piping work, whereas instead of excavating a hole, an open hole to do your work and then close it back up, what you do is leave the top surface soil surface, everything in place, and in effect you bore -- there's a b ore head that goes on the end of this 84-inch pipe that -- you could walk through this pipe. You put a bore head on the front of it and it cuts through the earth 's surface. When it's cutting the material out, the material is being transferred through the pipe backwards to the end of the pipe for disposal. And there's, it's a railroad track that this setup sets on, and the jack behind the pipe pushes the pipe
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and if you shut this line down you're shutting down major sections of Jefferson Parish that has utilities. So rather than getting into those issues, we said we'll do jacking and boring. The problem came up with the soils when we got ready to go under the railroad track. Q. How far deep do you have to go into the ground to jack and bore? A. Deep depth from the surface? Q. Yes. A. Oh, we were, um -- 84 inches is -- I can't do the math real quick. Is almost seven something feet, eight feet. Minus 24, so 24 minus 8, quick math on that, that was the depth. You want me to do that real quick? Q. I mean that's 7 feet. MR. TREEBY: 84 is seven feet. A. Seven feet. EXAMINATION BY MR. LEVINE: Q. Okay. A. Seven feet for the top of the pipe. And then there was the 84 inches down below it,
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forward as the bore head cuts the earth 's surface. So in effect, you have the jack behind pushing the pipe, and your boring head in front. That's why it's called jack and boring. I hope I've given a good enough description for you to understand that. You do that in areas where you -- I mean, it's done all over the world. In some places they've jacked and bored underneath lakes and rivers to run piping for oil lines, gas lines -- in this case we did it after Phase 4 to keep from -- we didn't want to have to remove the railroad track. It was a valued engineering change proposal we proposed to the Corps, we could do it a lot cheaper than what they had designed it to be done in the initial plans, and we wouldn't have to deal with the overhead transmission lines, we wouldn't have to bring in a crane and shut that line down. In fact, we found out after we started working on the job that the line could not be shut down as the Corps had indicated in the plans. Entergy said we got to keep this line on, this is a main line for Jefferson Parish,

too, also. Q. Let me show you a letter dated March 18th, 2003. It's not signed, but it's from Timothy Roth and it's from the Army Corps of Engineers. We'll mark that as Exhibit 40. (EXHIBIT 40 was marked for identification and is attached hereto.) EXAMINATION BY MR. LEVINE: Q. Now, I don't want to read this whole letter, but in the first paragraph it says, in the middle of the paragraph, it says, at each of the above, there have been discussions about the requirement for dewatering of the area through which you are jacking and boring 84-inch welded steel discharge tubes. You have promised that an adequate system will be installed and operated to sufficiently dewater this area. When there was the initial cave in, did you have any dewatering system up and running? A. Um -- if my memory serves me correctly, yes. We were not supposed to proceed with the jacking and boring until Mr. Dixon given us that design. In that design

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we put I think some piping along the, um -path, outside "extremiter" paths of the jacked and bored area to drop the water table. Now, to answer your question accurately, I got to look at the job records to tell you when we installed the dewatering versus the, um -- this letter. I don't know where we're going with it, but, you know -Q. So as best you can recall, you believe that the dewatering system was set up prior to the jack and boring operation. A. Yes, sir. The Corps made sure of that. Q. But you would need to look at your records to confirm that. A. That's correct. In fact, if it wasn't done, I think the core wouldn't have let us start doing jacking and boring period. Q. I think you also mentioned something about dewatering issues with the dolphin structure? A. Yes, sir. Q. What were those issues? A. Not with the dolphin structure. There's a phase, the discharge structure it's
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T-wall, yes, sir. Q. And now the Corps wanted those piles to be pulled. A. Initially. No. Q. Eventually, though. A. Eventually. Because like I said, Design Engineering, Mr., um -- his name was mentioned yesterday -- Holtgreve walked into a meeting -- the Corps had told us that we could cut the piles off and leave them in place. Then we come back two weeks later to another meeting, Mr. Holtgreve walked in and said, I never intended -(Brief interruption.) A. That was the initial position of the Corps. EXAMINATION BY MR. LEVINE: Q. And you wanted -- go ahead. I don't want to cut you off. Go ahead. A. And we come back two weeks later at another biweekly status meeting Mr. Holtgreve walked in the meeting and said, I never intended for the piles to be cut off. And the Corps changed their position, said, well, the piles got to be pulled.
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called in the plans. We installed the sheets in a U shape from the canal section. We had an open area that, um -- it was adjacent to the canal and it stayed pretty much wet during that time frame. We got the water -- we got it dewatered, and I think this was during the time frame when those storms came in. We had some, um -- we had some ground flow material inside our excavated area that we had to wind up re-excavating again. Some of the earth filled up our CON/SPAN system. This box culvert section about 36 feet wide, roughly 15 feet high, was full of sand and water that just flowed back into the, um -- box culvert canal section. Q. And that was after the tropical storms? A. That was after -- I don't know which one or how many times it happened. I think I remember it happening twice. But this was after the tropical storms, yes. Q. All right. I think another issue you mentioned with underseepage was the concrete piles under the T-wall. Is that correct? A. Existing concrete piles under the

Q. You wanted to cut the piles. A. We wanted to cut the piles and leave them in place. We felt strongly, and that's from Mr. Dixon -- when I say we, McElwee Brothers, Mr. Dixon, the geotechnical engineer said, Melvin, if leave those soil conditions the way they are, they are the strongest at that point, leave the piles in the ground, those piles do not interfere with the new piles to be installed. Q. After you cut the piles, you attempted to inject bentonite and there were some issues, generally, with how you injected it, is that correct? A. I'd like to correct -- no, that's not correct. After we cut the piles -- we never cut the piles. We were instructed to pull the piles. Q. So after you pulled the piles, you tried to inject bentonite and then there were some issues with the bentonite. Just generally. A. That's correct. Q. And then you believe that was -- you later on attempted to put new piles into the --

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into those -- into that area where you pulled the piles -A. That's correct. Q. -- and there were what the Corps called low blow counts. A. That's correct. Q. And I think you described this yesterday to Mr. Bruno, but the piles were just going into the ground far too easily? A. Far too easily. Q. And it was your testimony that it was the bentonite and the voids that were causing the low blow counts, is that correct? A. That's correct. Q. And now, there was also some cracks in the piles, is that correct? A. That's correct. Q. And it was your testimony that those were just minor hairline cracks that weren't really major issues? A. That's correct. Q. I want to show you a letter dated May 30th, 2003, addressed to McElwee Brothers from Diane K. Pecoul, the contracting officer at the Army Corps of Engineers. We're going to
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resolve the problem, the Corps took this position: Hey, the bottom line is we don't care what you said, this is what the problem is. You don't know what you're talking about. Q. Exhibit 43. I mean, I think the testing happened after that, but that's okay, because it's not a major point to me. But let me give you a letter marked Exhibit 43. It's a letter dated June 20th, 2003, from Diane K. Pecoul, the contracting officer at the Corps of Engineers, to McElwee Brothers. And again, this letter states that we reviewed your testing results, and essentially -- I'll read the concluding line. The key line on the second page of this letter says, due to our aforementioned conclusions, we go not recognize your assertion of a differing site condition -- meaning that the soils, the Corps didn't accept your -- let me strike all that. I guess the Corps' position, once again, was that the soils was not the problem with the low blow counts and the cracks in the piling. Is that correct?
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mark this as Exhibit 42. And again, I don't want to read this whole letter, but I guess the import of this letter, and I know you disagree with it, is that the Corps' position is that soil design factors were not to blame for the cracks in the piles. Is that correct? (EXHIBIT 42 was marked for identification and is attached hereto.) A. That is correct. That is the posturing and position they took at that time. EXAMINATION BY MR. LEVINE: Q. And then after you received this letter you went out and conducted some additional testing, is that right? A. No, the additional testing took place -- this letter is in response to McElwee Brothers' notification to the Corps of its testing results. And I think I mentioned yesterday a conference that was held with its geotechnical engineer Gulf Coast Pre-Stress, Ice Equipment -- there were several personnel in a conference. After we met and had some discussions, we presented our findings to Ms. Pecoul. And instead of trying to find or

(EXHIBIT 43 was marked for identification and is attached hereto.) A. Yes. That's Corps' position. I mean, they always tell you, hey, it's not that problem, it's something else. And that's one of these letters. EXAMINATION BY MR. LEVINE: Q. And you disagree with that. A. Oh, strongly. I mean, I'm sure most of us contractors have always disagreed with the Corps relative to these letters. Q. All right. Let me go back in time to when you were an inspector for the Corps. You were a quality assurance inspector? A. Quality assurance representative. Construction inspector is what it is, but quality assurance representative, yes. QAR. Q. And that was from -- I got it here, I think -- December 1988 through August, 1993; is that correct? A. That's correct, sir. Q. Did you do any inspection work on the MRGO? A. Yes. Mississippi River Gulf Outlet? A lot of dredging along the MRGO entirely.

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Q. From where to where? A. From the Inner Harbor Navigational Canal all the way out to -- I don't know how far the mile measurement is because we're going out into open water in open areas. I'd have to look at a map and say, look, it was this mile marker, and look at some of those records. We only identified it by, um -- station numbers when I was in -- Mike Hooks did some of the dredging then, and that's a contractor that was doing the dredging during that time. Q. Did you do that inspection works in the area of the MRGO that runs identical to the GIWW? A. When you say identical, the MRGO runs almost perpendicular to it, so it doesn't run along it. The only portion of area I mentioned yesterday where I was involved with some work in dredging on the Inner Harbor Navigational Canal was near the mouth of the Mississippi River. Q. Okay. So you did some inspection work on the Inner Harbor Navigational Canal. A. Yes, sir. Q. And that was with dredging.
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Q. Okay. A. That was around what, Bayou Bienvenue locks? I think that's somewhere around there. I'm just pulling out names now. Q. Okay. A. And then there was another. There is an old fort out there that's sitting out in the middle. It was in that area, because I remember seeing the old fort. I was intrigued by that. Q. When you did your inspection work, did you find any problems with underseepage while you were doing that inspection work? A. I'm -- I got to laugh at that, because if you go out there, I mean, you're surrounded by water and swamps, so it's kind of hard to tell you. The whole problem is underseepage. You know, the sheets, they only go down so far. I mean, I don't know. All I did was drive sheet piling and pull up some muck along the sheet pile. I mean, it wasn't like the lakefront where we were bringing some clay embankment and compacting and use some procedures to put the embankment in place. All we had out there was just the
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A. Yes, sir. Q. And you did some work on the GIWW -A. Yes, sir. Q. -- as an inspector. A. Yes, sir. Q. And that was with dredging. A. Yes, sir. Q. And you did some work along the MRGO as an inspector. A. Yes, sir. Q. And that was with dredging. A. Yes, sir. Well, I also did some work along the Inner Harbor relative to some levee work, which was some sheet pile, and that was done by Boone & King, B & K out of Mandeville. They drove some sheet piling and built some levees in that area. I was walking the swamps with the bore hogs as an inspector for the Corps during that time. Q. Where along Inner Harbor Navigational Canal did you do that work? A. Not -- I'm saying Inner Harbor. The gulf outlet. Q. Okay. The MRGO. A. MRGO.

dredged material that had been dredged years ago, and the Corps would take it and put it up against the sheet piles. So seeing a problem? I really wasn't looking for one as an inspector, I was just doing a job. I mean. Q. So, not to put all your words into one quick sentence, but yes, you saw underseepage out along the MRGO on that job, but that was expected. A. That's expected. You're in the swamps. Water is high, sheet pile only go down so low. I mean, so there's continuous seepage below that sheet piling. Q. Did you find any problems with the dredging work that you inspected along the IHNC, the MRGO or GIWW? A. I'd like to ask you to define problems. It was hard for me to -- to me it wasn't a problem. I'm working for the Corps, this is what's supposed to be done, they want this muck put over there. Hey, the guy is doing a fabulous job. Q. Is that what you would report, basically? A. I would say he mucked this area out,

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he did it this many hours, he had this many personnel working, and he discharged it at the stations designated by the Corps of Engineers. Q. So you didn't find any irregularities with the dredging. A. When it comes to performance of the contract, I found no irregularities with his performance. That's not an answer to the engineering and technical side. Q. I understand. I want to go back really quickly to Exhibit 42. (Brief interruption.)? EXAMINATION BY MR. LEVINE: Q. I want to go back now to Exhibit 42. The top of the second page there. There's a paragraph that says you needed to complete the construction and reopening of Jourdan Road during the non hurricane season, December through May. You see that? A. Yes. Q. Is part of your contract, you were supposed to cut holes in the hurricane protection floodwall, is that correct? A. Cut holes? Cut -- demolition and go through. Not cut holes. I mean, we took it
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Q. And I understand all that. I'm just trying to make sure I get the time frame correct for the record. You started that in December of 2001, after the hurricane season ended in 2001. A. The Corps left us with no alternative but to start it at that time because they was complaining about it not being started. And we began to initiate the work, and then we went to the Corps and said, okay, now, we began the work, where's the approval on the discharge tubes? And they said, oh, we haven't gotten it back to you yet. Q. Again, though, you started that work approximately December. 2001. A. We were forced to start it at that time by the Corps. Q. That's fine. And then you were supposed to have that floodwall reconstituted before hurricane season in 2002, is that correct? A. That was the initial request of the contract plans, yes. Q. And you weren't able to do that, is that correct?
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out completely. Q. Okay. A. And went through it. Q. So there was a big gap in the hurricane protection floodwall, is that right? A. A 40-foot gap in the hurricane protection. 40 foot plus the other 20 for the access road. Q. And those gaps initially started in -I guess after the hurricane season in 2001 finished, is that correct? A. Yes, I would like to answer your question and completely. Yes, it did, due to, as I mentioned yesterday, the Corps of Engineers' failed to approve submittals, get them back to us, and that's imperative to performing your work. You don't just go cut the wall out without a plan. And the Corps had not completed any plan. And again, I'll tell you the position of posturing, they ignored that. That was some of the claims that was -later the bond company recouped $1.9 million on, that McElwee Brothers didn't get a chance to see, as a result of the Corps refusing to partner incorporate.

A. No, we weren't, due to actions of the Corps of Engineers. Q. And so you had to set up some interim flood protection, is that right? A. Yes, we did. Q. Just so the record is clear, what is interim flood protection? A. Interim flood protection is, the gap is open, what can we put in place to assure that water does not go through the gap? And it was sheet pile. We had sheet piling driven to connect the I-wall with the T-wall on the outside of the gap. If I had a map I'd illustrate it to you. If you want me to draw it out. Q. That's all right. And then again in -A. Also, with that interim flood protection -- I'm sorry. I didn't mean to interrupt you but I want to complete that answer. Q. Go ahead. A. With that interim flood protection, we had the along the access road the came through, the 20-foot opening on that I-wall, we drove

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sheets below the ground -- the permanent sheets, these are sheets that were supposed to be there anyway -- below the ground for easy retrieval if a storm was impending we just pulled them up to the height of the I-wall. So that was the interim protection of the job. Q. And then after hurricane season concluded in 2002, you had another opportunity to place -- or reconstitute the flood walls before hurricane season in 2003, is that correct? A. To reconstitute the flood wall, I guess -Q. Rebuild the floodwall that you excavated. A. We had an opportunity, but however it was impacted by the impending storms. Remember I told you there was four storms? During August -- July and August, one year, there was three storms back to back. And we couldn't really get that work done during that non hurricane season period. Q. Well, if the hurricanes -- these storms happened during hurricane season, wouldn't by the end of hurricane season you
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yes. Q. You weren't able to rebuild the permanent hurricane flood protection structures before the beginning of hurricane season in 2003, is that correct? A. We were able to do that. We was on the process and a track record to have that completed. Q. But it wasn't completed at the beginning of hurricane seen in 2003, is that correct? A. It wasn't, due to some difficulties between the Corps of Engineers and McElwee Brothers. In fact, if I could point -Q. Go ahead. A. If I could point out, one of the difficulties is this exhibit -- Exhibit 40. As I mentioned yesterday, were some lines of authority established during the partnering meeting. Q. Which one is Exhibit 40? A. That's your letter dated March 18th, 2003. Q. Yes. A. If we read the first sentence,
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have an opportunity to the complete that work? A. I have to see when those storms happened. I have to tell you when the storms happened and what we were able to do during that time. Ideally, if they all happened during hurricane season and there was no -- all submittals were approved and everything was on site and we weren't impacted by other items, yes, we could get that wall in place. There's something else we had impact the job, and think during that time frame was the back fill. The Corps never designated the back fill to go over the box culvert canal sections, what type of new material needed to be brought in. The contract was modified to deal with that. And I don't know if it was around the same time frame we were trying to get these box culvert canal sections back filled, which was impacting the work at the time. There was just so much happening. I'd have to look at the progress chart, show you the impacts that was presented to the corps. And, um -- if the Corps would have worked with us like they would normally do with most contractors, we could have got the job done,

gentlemen, reference the initial inspection on Monday, March 10th, 2003, for the Jack and bear operation. The phone conversation between myself -- who was Mr. Tim Roth -- and Ross Leslie -- who was a project manager for Tri-State Design Construction Company, also I'd like to note was ever authorized to do any communications relative to the project -- on Tuesday, March 11, 2003, the biweekly status meeting of Thursday, March 13th, 2003, and the field meeting of Friday, March 14th, 2003, between your designer, Mr. Michael Dixon and our geotechnical engineer Mr. Frank Vojkovich, and the phone conversation on Monday March 17th, 2003, between Mr. Glenn Gremillion and Mr. Leslie. I want to make it clear that that was parts of the problem. The Corps would go to Philadelphia to speak with to Mr. Leslie about getting work accomplished in New Orleans, and they were ignoring me. And that was part of the problems in having a lot of this work accomplished. Q. Were you having difficulties at that time with your joint venture partner about who

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has lines of authority with the Corps of Engineers? A. No, I didn't have problems. The Corps had problems. Because the Corps sat in meeting with me and looked at Mr. Davis and tried to convince him to pass a document to me authorizing Mr. Leslie to conduct business down here on behalf of McElwee Brothers when he was never an employee or a consultant to McElwee Brothers That was the problem, not McElwee Brothers having problems with the joint venture partner. It was the Corps of Engineers trying to force the financier, the one that had the money for this joint venture, to coerce him to do what they wanted to get accomplished. Q. Well, you eventually sued your joint venture partner, is that right? A. That's correct. Q. Why did you sue them? A. I sued them because Mr. Ross Leslie should have immediately told them I'm not authorized to communicate with the Corps of Engineers, and I think you all need to talk to Mr. McElwee. They were willing participants in these subversion tactics.
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Q. Now, we're going to have to reference the third page and the first page. A. Yes, sir. Q. But I guess at the top of the first page -- the third page, excuse me, you have a number of claims listed. A. Yes. Q. And those are for, I guess, contract modifications? A. Those were for some of the contract modifications, yes. Q. What is a contract modification? A. Contract modification is after the contract has been awarded and performance has began there are issues that arise that the contract did not consider, and so the contract has to be revised. And when it's revised, normally there's something involved as far as time or money impacting the contract, so adjustments have to be made accordingly. Now, the adjustments can be to the negative to a contractor where he actually owes the government something, or to a positive to the contractor where the government owes him. Q. Sure. So at the top, there's a number
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Q. Now, your contract was eventually terminated on June 24th, 2003, is that right? A. That's correct. Q. I guess one of the reasons the Corps terminated that contract is they thought the hurricane flood protection structures were still left open for far too long. Is that right? A. That is the position that they took, and that's what they said as a reason to try to default it, yes, sir. Q. And I don't want to misrepresent anything you say, but you disagree with that position. A. 100 percent. Q. Let me show you this letter that's also marked June 24th, 2003. I'm going to mark this as Exhibit 44. And this is a letter from you as the managing venturer of McElwee Brothers and the joint venture to the Army Corps of Engineers, is that correct? (EXHIBIT 44 was marked for identification and is attached hereto.) A. That's correct. EXAMINATION BY MR. LEVINE:

of modifications that were finalized at that time. A. Yes, sir. Q. And then I think in the middle section where it says order of negotiations, there's a number of claims that you had presented prior to June 24th, 2003, that were still outstanding at the time that this document was provided to the Corps. Is that correct? A. That's correct. Q. And the first four claims underneath order of negotiation were provided to the Corps on June 5th, 2003, initially? A. That's what my notes say, yes. Wait, wait. Let me say -- let me, let me -- my notes say this: Let me clear this up. The 5th of June, 2003, the first session for negotiations took place. Q. Okay. A. That's what that meant. Q. Okay. So you might have provided notification to the Corps previously. A. Yes, sir. Q. Do you know that to be true or you just --

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A. I know that to be true because we would not begin negotiations without notification being done. Q. And in the bottom section you have a number of claims that you submitted to the Corps for the first time on June 24th, 2003, is that right? A. No, that that wasn't the first time. The Corps knew about these items before this sheet took place. Q. But this sheet is the first time you provided notification to the Corps that you wanted to submit those claims, is that correct? A. That's inaccurate. If you look at the job records, if you look at the contract quality control reports, we daily tell the Corps of Engineers of problems that we run into. So those are notifications, also. Q. Sure, but you have to formally submit the notification for a contract modification, is that correct? A. Formally? Q. Sure. You just can't call someone up on the phone and say, I've got such and such problem and I think we should modify the
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that's the first time they were notified. Q. It said that was notification to the -- that's what it says there, is that correct? A. That's correct. Q. And it says that under the next one, is that correct? A. That's correct. Q. And it says it under the next one. A. That's correct. Q. It says it under the next one. A. That's correct. Q. It says, request final decision on the next one? A. That's correct. Q. And then the last one, seven, defective specifications, notification to the Corps on June 24, 2003, is that correct? A. That is correct. Q. That's what the document says. A. That's what it says, and the reason that was put there is because if you're familiar with the termination records relative to government procedures, a contractor, once he's terminated, has a certain amount of time
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contract. A. Notification has to be given. Whether it's in verbal form, communication, whether it's through the job records, I mean, I'm -let me give you an example of that. These storms on here, that "mod" came about when Tim Roth said, hey there's going to be a change, and we got to notification that the change was formally accepted. However, prior to getting that notification it was agreed that the storm was impacting the job. In fact, McElwee Brothers expended labor, materials and effort to protect the work area and we hadn't agreed to the modification. So the notification can come way before we sit down with the first negotiations. Q. And to be fair, this document says, under claims, notification -- well, look at the first one. Removal of additional sheet pile and asphalt in Jourdan Road. And if you go down to note, it says notification to the United States Army Corps of Engineers, 24 June 2003, is that correct? A. That is telling you that they were notified on that date. That's not telling you

to assure -- to confirm that the agency is aware of any potential claims that might come after the termination for default. Q. Did you provide this letter to the Corps before or after you were notified of your decision that you were terminated for default? A. This was the same day, I believe it was, if I'm not mistaken. 23rd or 24th. I've got to check the date of the termination. Give me something with the termination on it and I'll tell you. Q. When you sent this letter in, though, were you aware your contract had already been terminated? A. I got to check. Let me see the date of the termination for default, if you have it. Q. The termination for default, I'll tell you what date of the later is, I know what it is, it's June 24th, 2003. A. Right. Q. The same day. A. The same day. That letter went in that day. The morning. And then we got a termination for default faxed to us. Q. So this letter went in first.

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A. Uh-huh. Q. And then you were terminated for default, is that correct? A. Yes. Uh-huh. Q. Did you think when you sent this letter in you were going to be terminated for default at any time? A. Oh, Tim Roth had mentioned that on several occasions, that we plan on terminating your contract. I mean, he mentioned that back in 2001, 2002 -- the early part of 2002. He kept harping on the path that we're going to terminate your contract. I mean, that was -that was his intent. Q. When you sent this letter in, did you think that an impending termination was going to take place? A. I'm going to say to you again, in 2002 Tim Roth made it clear he was going to terminate this contract. And if I can make it a little bit more clear for you, um -- he indicated that he was going to terminate it after McElwee Brothers didn't select his brother-in-law to work on the project as a subcontractor, Mr. John Kernion.
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A. I didn't feel, I knew it. Because the Corps displayed the actions. Let me repeat that again. When they came into meetings and they ignored modifications that were previously submitted to them, to include these hurricane "mods." Rather than negotiate these and get them out of the way and get the monies to the contractor so he could proceed, the government held off on all of that. That wasn't negotiated until the bonding company came in. That was totally ludicrous and unnecessary. The intent of most of the government modifications, from my recollection when I worked with them, was that they would negotiate mods quickly because the longer you take the higher the cost of the mod goes. (Brief recess.) EXAMINATION BY MR. LEVINE: Q. I'm going to hand you a document that I've marked as Exhibit 45. And this is an affidavit that you signed in the case Great American Insurance Company versus McElwee Brothers. Is that correct? (EXHIBIT 45 was marked for identification and is attached hereto.)
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John Kernion works for Cycle Construction. And after McElwee Brothers did not select his brother-in-law, the project began to go south. That's when I realized it was going to be terminated. So now hopefully that answers your question. Q. It doesn't, so let me try it one more time and then -- I mean, when you sent this letter in this date, on June 24th, 2003, were you expecting to be terminated that day, the next day, the next week? A. To answer you again, in 2002, in January, Tim Roth made it clear he was going to terminate this contract. We're planning on terminate your contract. Q. So -A. And every action from that day forward was in the act of terminating the contract. Q. So every day from what date did you say in -A. January, 2002. Q. So for every day from January, 2002 onwards, you felt that you were at risk of being terminated?

A. Yes. EXAMINATION BY MR. LEVINE: Q. And it was sworn and subscribed before a notary, is that right? A. That's correct. Q. Paragraph 2, it states, the contract price that you bid on and received after an award was $521,356.53. Is that correct? A. That's correct. Q. Let's turn to Page 3 at Paragraph 8. It says what it says there, but you believe the issuance for the termination for default, at the time you sent this affidavit -- filed this affidavit, was inappropriate, is that correct? A. That's correct. Q. You still believe that today? A. Yes. Q. And you also say that some of the fault was for Pittman Construction Company, is that correct? A. That's correct. Yeah. Pittman Construction Company, that's correct. Q. What role did they have to play in the eventual termination of your contract? A. Um -- McElwee Brothers felt that the

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termination was unjustifiable because the Corps terminated McElwee Brothers, the joint venture, for its work, when actually even up until today that work is complete but the pump station is still not functioning. Pittman was the contractor on the pump station, and they were delayed I think two or three years prior to McElwee Brothers beginning its work, and the essence of importance of work was on the pump station itself. Had McElwee, McElwee meaning McElwee Brothers and the joint venture, delayed the pump station 's usage during any hurricane, you know, and just recently Hurricane Katrina, then McElwee would have understood the reason for termination. But the Corps placed emphasis on terminating McElwee because it was behind schedule. But here we have a pump station that's I think even today almost five, six years -- hasn't even been completed. But the Corps didn't terminate Pittman. Those delays impacted McElwee tying in the tubes to the pump station. That was part of McElwee Brothers' job. The tubes have never been tied in. It's just been accepted that, hey, that job late, so what's the big deal?
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been reasonable in saying, you know what, we gave Pittman two or three years to finish that pump station, I mean, you know, and it impacted your work, whatever impacted you, you need time, too. I still think the position is, hey, it wasn't the fault of the joint venture, but there's been some reactions afterwards that, hey, if you look in the court record, the joint venture failed to pay its obligations. But if you look at the whys, you know, I feel that it was not the joint venture's fault. Q. So you disagree, then, with what the court record is. I mean, you personally disagree with that. A. No, I agree that the Court was right in making a determination that financial obligations were not met. And that was the truism, and it gave the bonding company the right at that time to exercise its right to take over the contract. I never disagreed with that. But had the Corps of Engineers paid its bills like it paid the bonding company, the joint venture never would have been in a financial obligation to be in front of a Court.
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Q. The next line of that says, it wasn't -- the termination for default was not reasonably based on any act or omission of the joint venturer of its partners. Did you believe that to be true at the time you signed this affidavit? A. At the time I signed the affidavit, yes, I believed it to be true that, um -- the termination was not as a result of acts or omissions of the joint venture, no. Q. Do you still believe that to be true today? A. There's a sequence of events that have happened in Court since then, to include the joint venture being found in breach of the indemnity agreement for failure to pay its financial obligations. The Fifth Circuit Court of Appeals has made that determination. You know, the question can be answered two ways. I believe it not to be true at this time, because if the Corps would have made its bills and would have acknowledged the amendments that we looked at in Exhibit 44 and would have cooperated and worked along partner with the joint venture to get this project completed and

Q. You said the Corps didn't pay its bills. What do you mean? A. Let's go back to Exhibit 44. Q. Which one is that? A. Exhibit 44 is the notification of claims. Page 3. You have look at the order of negotiation, if you look at CIN -- if we look at Change Identification Number 7, 8, 9, 10, Amendment 0004 and Amendment 0002, and TE -Time Extension 005, those numbers that I just read to you are numbers assigned to modifications by the Corps of Engineers. That's not McElwee Brothers or the joint venture's numbers assigned to those. The Corps assigned numbers to those modifications meant they agreed there's a mod in the contract. Q. Well -A. However, they never negotiated it and passed the money on during the course of the contract. Q. Well, the first four under order of negotiation, that first negotiation session, those took place on June 5th, 2003, is that correct? A. That is correct. Now, if the Corps

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tells you, hey, we're going to set the date in June, 2007, and that's when we're going to meet with you to first negotiate with this, you as a contractor don't have a choice in that matter. But if they handle it urgently and say, hey, we knew the storm took place, and we knew you expended labor and materials, let's get this over with and let's modify this contract and get you your monies because we know you need your monies, that's a whole different aspect. Now, the bonding company came in and they paid them the monies that was due at that time. Q. Did the Corps not paying you have any impact on you not completing the project? A. 100 percent. Q. How is that? A. You cannot complete a project if your bills are running behind. It's like trying to feed your family. If you don't get a check, you family can't eat. And with time it's going to impact them. Q. Were you unable to pay your subcontractors? A. There was subcontractors and materials suppliers that were not paid. That is what,
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correctly. Q. After your contract was terminated for default you tried to bring a claim against the Army Corps of Engineers and the Board of Contract Appeals, is that correct? A. We didn't try. We brought claims. All of the ones you notice under order of negotiation with Corps members, all of that was brought in front of the Armed Services Board of Contract Appeals. In fact, the Armed Services Board of Contract Appeals had directed the contracting officer to answer the contractor relative to those claims. The contracting officer was refusing to answer those claims. Q. And then you litigated against your surety Great American Insurance Company for who has the right to pursue those claims. A. That's not correct. The bonding company, surety, instituted a preliminary injunction. I think we talked about that yesterday. The copy of that is in the exhibits here. They were trying to exercise their rights to the claims. Judge Duval issued a temporary restraining order and an injunction, which was mandatory and prohibitory at the same
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um -- that's the financial obligation of the joint venture that was negligible at that time. Well, I mean, it was wrong at that time that the Fifth Circuit said, hey, you didn't meet your financial obligations. That is what happened at that time. Q. The original length of this project was 600 days; is that right? A. That's correct. Somewhere thereabout. Q. And you said the Corps gave Pittman numerous extensions. Is that right? A. That's correct. Q. Do you know how long Pittman 's project length was for? A. Their project length was supposed to -- the pump station was supposed to end before we began -- well, end before we began or right at the time we began our work. But when we arrived on job site in August, 2001, Pittman was on a scarce schedule because they was waiting for approvals for time delays associated with the overhead power lines on their side of the job, and I think the job was already two or three hundred days behind schedule at that time, if my memory serves me

time, prohibiting McElwee from communicating and being involved with the Corps and the ASBCA, and making it mandatory to cooperate with the surety to collect all amounts due. But at that time, the Armed Services Board of Contract Appeals did not recognize nights the surety. In fact, the surety sent several letters saying, look, the Eastern District of Louisiana say we in charge now. And the ASBCA says, you're not McElwee Brothers so we can't honor you. And they continued to try to communicate with me. And that is where the contempt came at later, because the ASBCA would not recognize the bonding company. Q. So you believe that you were sanctioned because the Board of Contract Appeals kept dealing with you instead of trying to deal with the bonding company, is that correct? A. That was part of that sanction. In fact, that hearing on that sanction, Judge Stanwick Duval brought me in during that hearing, and to my surprise he said he had a surprise guest to be on the telephone. The surprise guest was the Honorable Judge Friedman

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at the Armed Services Board of Contract Appeals. And it was a motion of contempt requested by Great American against me for communicating with the ASBCA after the injunction was in place. Judge Friedman Had issued -- sent a letter. In the letter somewhere, the language said, Mr. McElwee, this is in reference to your conversation with us on a particular day. And, um -- um -- that letter was brought up during that contempt proceeding. And I was placed under oath and Judge Duval asked me did I communicate with the ASBCA. And I said, Your Honor, I haven't. He said, Mr. McElwee, do you understand you're under oath? I said, yes, sir, I do. He said, you're telling me you haven't talked to Judge Friedman? I said, Your Honor, I have not. He said, Well, I have a surprise guest. He said, Judge Friedman -- he brought the telephone out -- y'all got him on the line? That's what he said. He said, Judge Friedman, I have under oath Mr. McElwee on the stand. And he said, um -- Judge Friedman, I'm a
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them stuff they asked for. And it just happened to be there were some old seals that were no good when we left from the project site that he requested, and I gave them to him when he requested them, and then he filed documents included in that proceeding stating that I was withholding information. And Judge Duval said, Mr. McElwee, I find that you did not talk to Judge Friedman, but narrowly I do think you violated my order. And that was because of the fact that it was the third time that they had raised contempt proceedings, and the first two times he had dismissed it. And this third time he wanted to me to understand his powers. And then he found me in contempt. Q. Did you disagree with that entry of the contempt order? A. I totally disagree with it. Because I cooperated with the seals. I gave him the seals he wanted. He wrote me a letter saying, look, you got some seals over there, deliver them to me, and I did. The seals were in bad shape. The manufacturer of the seals, CON/SPAN said the seals were bad when you left the job. And I told Shields that the stuff was no good,
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federal judge and I've ordered Mr. McElwee not the communicate with the ASBCA. And he said, I'm trying to, um -- verify that he contacted your office. And Judge Friedman -- he said, Mr. McElwee, go I need to swear in Judge Friedman? I said, no, Your Honor, he's an officer of the court, you don't need to swear him in. And he asked Judge Friedman, he said, Judge Friedman, has Mr. McElwee contacted your office? And Judge Friedman said, no, he hasn't. And he said, excuse me, Judge Friedman, even though I have a letter here that you signed saying Mr. McElwee contacted your office, you're telling me he hasn't? He said, Mr. McElwee did not contact my office. It was Ms. Sylvia Hurst that contacted my office. That was the initial institution of the proceedings for that contempt. Along with that was Mr. Lloyd Shields said that I refused to cooperate with him and had refused to give

that he was going to have to order new stuff. So why did Mr. Shields come after me with some old seals? He's setting me up, I felt, you know, to deliver something to him and say I was withholding information. And that's why I'm careful and cautious on how I talk and answer now. Because I'm afraid of setups again. Q. So you disagreed with Judge Duval 's ruling. A. 100 percent. Q. Um -- I think we've discussed this earlier. You brought suit against Tri-State as of the result of this contract termination; is that right? A. That's correct. Q. Now, Paragraph 9, it says, McElwee Brothers wanted to complete the contract. Is that right? MR. LEVINE: For the record, it's Paragraph 9 of Exhibit 45. A. That's correct. That is correct. EXAMINATION BY MR. LEVINE: Q. And I guess if the contract was going to be terminated you felt a termination for

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convenience of the government would have been more appropriate, is that correct? A. That's correct. Q. What's a termination for convenience of the government? A. That's when the government comes in a and terminates a contract because of maybe no fault of either the contractor or the government but it's just that the contract cannot proceed on. We felt it was, um -probably would have been a lot better option because along the course of from 2002, January, until it was terminated, the Corps kept hollering, screaming during that time, or alleging they was running of monies because Congress hadn't appropriated them any funds. And in fact, they shut down several contractors during this course because there was no funding for them to complete their work. Now, they did issue options for contractors to complete the work and hope to get paid somewhere down the road. That was merely a hope. And, um -- they said, the allegation was that the only reason they hadn't terminated our contract for convenience is
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Exhibit 45. And it says -- it says what it says, but do you believe that the fair value of the modification of the claims due the joint venturer is $4,347,807.37, is that correct? A. That's correct. Q. And you believe that if the surety had successfully advanced that position and the termination for convenience position that the net funds due the joint venturer were $2 million -- I'm just going to have to read this out -- $2,030,212.55, is that correct? A. That's correct. Q. And instead, you were hit with a judgment for $1.9 million, you testified to yesterday? A. Yes, sir. I say 1.9, but I think in this document it's probably -- it's close to somewhere around 1.9. I'd have to see that judgment. Q. The judgment says what the judgment says. A. Yes. Q. So you're out two million dollars plus the total amount of the judgment. That's your net loss.
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because we never gave them a letter one way or the other on how we felt the contract should go. But we felt that that was not a position for us to determine. If you don't have any money to pay for a job, it's your decision to make at that time whether you're going to terminate it for convenience or shut it down. And being prudent as the Corps is, they're familiar with monies and appropriations, we felt that they should have terminated for convenience at that time or issued some -halted the contract but issued some, um -delay time. But I think it was critical they didn't went to do that because there was some opening in the flood protection and that wasn't going to come across well if you're shutting a job down and there's openings in the flood protection and the city get flooded. Q. If the contract is terminated for the convenience of the government, the contractor is still entitled to receive a certain amount of profit and fees from that termination, is that correct? A. I believe that to be true. Q. Turn to Paragraph 20 of the

A. Yes. Q. I don't know if anybody has asked you this, but you don't have a degree in civil engineering, do you? A. No. Q. And -- I guess it follows that you're not a licensed professional engineer. Is that correct? A. I think I've affirmed that earlier, that I am not an expert. Q. I understand. I understand that. There's a lot of stuff going on in two days, I'm just trying to be clear for the record. For the Dwyer Road project, the biggest project you were a contractor with was $150,000? A. Before that one? Q. Yeah. A. Yes. Q. And then -A. I'm saying yes. But again, I got to look at the records. I know it was nowhere near -Q. And the Dwyer Road project was $5.5 million.

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A. That's correct. Q. Have you had any projects after the Dwyer Road project, Mr. McElwee, where you were the general contractor? A. Yes. I mentioned those yesterday. Austin Bridge and Rode, doing some pile driving in Shreveport, Louisiana. That was 2 million dollars. Um -Q. It's called Austin -A. Austin Bridge and Road. Q. And who are you contracting with on that one? A. Again, Austin Bridge and Road. Q. That's the name of the company? A. Yes. Q. What's the location? A. It was the Red River westbound lane of the Red River bridge crossing the Red River, driving the pilings for that project. Q. Any other projects? A. Um -- Baton Rouge, Denton James. Q. These companies Austin Bridge and Road and Denton James, are they construction companies? A. Yes.
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look at and give you a résumé of contracts since that time. Those are the ones that stand out. Q. When you were inspector at the Corps, that was from December -- let's get the dates one more time. Sorry. December, 1988, through August, 1993. A. Yes, sir. Q. Did you have any performance problems? A. What do you mean performance problems? MR. JOANEN: Objection, vague. MR. LEVINE: It is vague. Let me rephrase it. You're giving me that look, too. EXAMINATION BY MR. LEVINE: Q. Who were your supervisors while you were there, if you can recall? A. Mr. Ward Purdum, Lee Guillory, Danny Thurmond, Chester Ashley. Performance, you mean performance appraisal problems? No. Q. Did they ever judge your performance -A. Yes, they did.
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Q. They're the general contractor on the project. A. That's correct. Q. You're just a subcontractor. A. That's correct. Q. Have you received any contracts where you've been the general contractor since your termination from the government? A. Okay. Let me clear this up. With $1.9 million owed to a bonding company you can't go in as a general contractor until you take care of your bonding company. You have to be bonded. So no, I couldn't go in as a general. I've been crippled as a result of what's happened with the Corps. Q. Any other contracts where you've been a subcontractor? Denton James, where was that project? In Baton Rouge? A. That's Baton Rouge. And, um -- LSU recreational field for Tricor Properties. Q. Where are they out of? A. Baton Rouge, Louisiana. Q. Any other contracts? A. I'd have to -- I don't remember anything right at this point. But I'd have to

Q. -- poorly? A. No. Exemplary performance. Q. Were you ever tardy on a work site? A. Tardy at a work site? Q. Were you ever tardy to the jobs on a regular basis? A. I mean, I was tardy at times. On a regular basis, no, because we had flex time and you could flex in at between like 7:00 and I think 8:00, something like that. Ward Purdum was my supervisor, so he understood -- or he allowed -- not understood, he allowed me to flex in and out for lunch to go to UNO for classes. So I mean when you say tardy, now, I don't want you to come at me and say I didn't tell you about something. Q. That's fine. That's fine. A. I'm just telling you about, hey, my time -- and everybody 's schedule was never the same. But the standard work time would probably be from 7:00 to 3:30. And if you came after then, you know, like you came at 7:30, it would be till 4:30. So we all had times we could flex in or flex out. In fact, there were times I went straight to the job site, you

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know, rather than report in to the office. So if a job site was located closer to my home, you know, I would -- was allowed to go straight from home to Kenner. Q. Did any of your supervisors at the Corps ever review your time for tardiness? A. Any of my supervisors? There was -he wasn't my -- well, I don't know if he was my supervisor. There's a gentlemen, his name is -- and I think you're dancing around an incident and I'm going to go straight on with you and tell you about it. Um -- he's dead now. He killed himself, suicide. Um -- you wouldn't happen to know his name, huh? Q. Can you just describe the incident? A. Um -- the incident? This project engineer, um -- began to target and harass me with my military time, if that's what you're speaking of. The Corps had a policy that if you were in the military that you could use your military leave while you were on active duty for the guard or the reserves. And there was a time frame when I went away for two weeks, and I took my military levee at the Corps, which meant I got paid military pay
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problem. And they brought me in for a conference relative to it. Q. Did someone ever accuse you of forging a letter? A. Forging a letter? Q. I'm just asking, did someone ever accuse you of forging a letter relating to your military time? A. This gentleman may have said it was forgery. The same guy who is dead now and killed himself for whatever his mental problems were, I don't know, he may have said that. I'm not aware of that. He might have said that to somebody after I left the Corps. Q. Did this ever precipitate the end of you -- you eventually leaving the Corps as an inspector? A. Did it precipitate it? No. As I mentioned yesterday, what happened was I started my own construction company, and I couldn't work for the government and perform work for the government at the same time. You know what I'm saying? Q. I follow that. A. It was a conflict. And what happened
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while I was gone and I got paid by the National Guard. Well, he had a personal problem with that. There never was a problem with any other veterans in that area office. Um -- and many of those other veterans I served in the same units with them. Um -- Cal Smallwood, several others. Danny Thurmond who I mentioned was my supervisor. Um -- Buck Burgess -- Mr. Burgess is his name, I think we called him Buck for short -- we were all in the same engineering unit in the National Guard. And we would all do the same things. But so this supervisor began to harass me about that time. He said, you took military leave. I say, okay. Yeah, I did take military leave. What's the point? He say, well, according to some regulation you wasn't supposed to do this or that. I said, I not aware of what you're talking about. I say, provide me with your documentation what you're talking about. I'm doing the same thing everybody else does. And I never could understand the

was, I was beginning to get into the market and bid government contracts, and I received a contract -- right after I left, I was in line the receive a contract by the U.S. Army, and I said, well, I got to quit, I got to leave, I can't work for the Army and then have a contract with the Army, there's too much conflicting interests. That's what precipitated my levee. Q. Okay. So just to be clear, and I just want to make sure I understand, you never left -- you didn't -- you left the Corps on relatively good terms when you left. A. When I left the Corps I left on relatively good terms. In fact, now, this is how it happened in detail: It happened, when I left I was out sick on sick leave. And I never returned. In fact, I think I told them that I was being stressed and harassed and I wanted some time off. Q. And no relation to any incident where you would have forged a letter. A. I never forged a letter. Q. All right. A. I mean I never forged a letter. I

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don't have a letter to forge. I mean, military, you just write down what your leave was. MR. LEVINE: I tender him. EXAMINATION BY MR. BRUNO: Q. I just have a few questions, Mr. McElwee. You were kind enough to bring us the book? A. Yes, sir. Q. And this is the book that you were given when you took the course entitled Earth Work Quality Verification Course? A. Yes, sir. Q. In this volume is this yellow thing which is entitled Engineering and Design Construction Control for Earth and Rock-Filled Dams. Were you given this engineering manual at the same time? A. Yes, sir. That manual -Q. Did you learn in the course whether or not earth and rock-filled dams had anything to do with levees? A. Yes. Because you have some earth work that's tied into these dams. You know, it's
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big organization. How could I lash out at them? I don't know. I'm a retired officer from the same U.S. Army. So, you know, I've always thought, hey, I don't want to get in a predicament to be lashing out, but I'm going to tell the truth. Q. All right. Now just a few more. There's hours and hours about your contract and the piles and all that business. First of all, was this an easy or a difficult job to do? MR. LEVINE: Objection. Vague. A. I am quoting Mr. Dom Algazabo who was the, I guess, resident contracting officer at that time who also, I said, went to the Orleans levee board. EXAMINATION BY MR. BRUNO: Q. Uh-huh. A. This was the most difficult project the Corps of Engineers had in the New Orleans district at that time. Q. And what role, if any, did the nature of the soils have to do with the making that job difficult?
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not just strictly all rocks, per se. Q. All right. A. So there's some earth work around most dams -- many dams. Q. All right. We have agreed that what we'd like to you do, if you don't mind, is just take this book over to IKON for us and then take your original back, and we'll obtain our copies, you know, in the same fashion. A. Yes, sir. Q. Now, you were asked yesterday about this business with the Corps and they terminated your contract. A. Yes, sir. Q. Have you said anything in this deposition that you would regard to be, um -- a reaction to the fact that the Corps terminated the contract; in other words, is your testimony colored by the fact that you've been unfairly treated by the Corps, and lashing out at them? MR. LEVINE: Objection. Compound. A. No. You know, facts are what they are. And I've just merely spoken facts. And to say I'm lashing out, I mean, the Corps is a

MR. LEVINE: Objection. Vague. A. The nature of the soils made it very difficult for a situation where you didn't anticipate to dig up log trees and roots. You saw some indications on the boring where there's some wood. But they didn't tell you you're digging in a swampland, an area that has -- that is practically virgin material, we just covered over it. Q. Uh-huh. A. You know, as far as the batture is concerned. You know, it was very difficult. Q. All right. Now, the other thing that strikes me as I'm reading these letters from the Corps about improper this and improper that, I'm wondering -- I'm thinking to myself, where's the quality assurance guy? Is he on the site every day when you're doing the work? A. He was on the site every day we were doing the work, but he was -- because of the tense relationship, he was overpowered, overshadowed by his own supervisors. Q. Well, what I'm saying, though, is there is an allegation here that the piling

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might have been improperly handled. A. Yes, sir. Q. It's in Exhibit 42. Is the quality assurance -- the quality assurance guy was there on site watching the way the pile was handled, am I -A. That's correct. Q. Is that true? MR. LEVINE: Objection. Leading. A. That's true. EXAMINATION BY MR. BRUNO: Q. Well, was the quality assurance guy there to witness how the piles were stored? A. He was there throughout the time the piles were brought to the job site, stored, moved around on the job site. Q. All right. Well, he says -- did he witness how the piles were positioned in the leads? A. He witnessed it, yes. Q. Did he witness the pile driving procedure? A. Yes, he did. Q. Did he say anything while he's
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photographs and a color copy of the same paragraphs. Is the right? MR. BRUNO: Yes. EXAMINATION BY MR. TREEBY: Q. And a huge pile of paper here. Um -and I guess I would like -- and I don't know how best to identify it. MR. TREEBY: Will counsel trust me to represent that -MR. BRUNO: Yes. MR. TREEBY: -- if I take this and Bates this stack that this will be -- and then I can make it available the same way he's made I available by CD? MR. BRUNO: Sure. MR. TREEBY: Is that okay? MR. BRUNO: Yeah. I mean, I told you -EXAMINATION BY MR. TREEBY:
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standing there watching you do your work that would have suggested to you that you were doing something wrong? A. He didn't say anything, and neither did Mr. Vojkovich who was witnessing the pile driving initially when it took place, who was the geotechnical engineer for the Corps of Engineers. Neither one of them mentioned anything about handling procedures, movement of the piles, or piles being cracked prior to driving. MR. BRUNO: All right. That's all the questions I have. MR. TREEBY: Anybody else? EXAMINATION BY MR. TREEBY: Q. I just want to follow-up, Mr. McElwee, with we have been produced a big pile of paper today that I'm told is the additional material that would be described by our subpoena that we had not received before today, and I just want -- I think it might be helpful, if you're able to do so, to -- and I believe I've been given both a black and white copy of

Q. Can you look at this and do you think determine if this in fact is the additional material that you described yesterday that I had not been given? A. Sir, I can visually see from here, and then I can tell you it is the stack. I can tell you I about the stacks. The bottom stack is the stack of documents that were submitted to Dr. Bea 's constituent, and I don't think they were ever really used but those were documents I gave him and I told them to make copies of them at IKON. This is that stock of documents that were never used as far as, you know, by his constituent. Q. You don't know they weren't used, though, do you, for sure? A. I'm -- I'm telling you what I was told. Q. You were told that. Okay. By Mr -A. Rosenberg. Q. Rosenberg. David Rosenberg. Okay. A. Yes. He asked me in particular how do you want me to handle these stacks? And I said, look, the first disk you gave was documents done already, don't

32 (Pages 487 to 490) JOHNS PENDLETON COURT REPORTERS 800 562-1285

MELVIN M.L. McELWEE (VOL II)
Page 491

4/24/2008
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duplicate that again. We don't want to keep giving the same documents over and over again. I said, that stack you never made copies of in the first disk, make a copy of that. That's the second stack. Q. Okay. A. He said, I didn't use those, I didn't touch them. I said, I don't care, he wants the documents, make a copy for him. And this is it. Q. Okay. A. This photos he had was strictly of all the photos I'm told have been used in the case study. These are those photos -Q. Okay. A. -- of the excavation site. Q. Okay. Okay. And with the reservation that I previously made, and in addition, we're going to get a copy of what's in this binder that consists of the entire training course? MR. BRUNO: Yes.
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WITNESS' CERTIFICATE I, MELVIN M.L. MCELWEE, SR., do hereby certify that the foregoing testimony was given by me, and that the transcription of said testimony, with corrections and/or changes, if any, is true and correct as given by me on the aforementioned date. ______________ DATE SIGNED _________________________ MELVIN M.L. MCELWEE, SR.

_______ Signed with corrections as noted. _______ Signed with no corrections noted.

DATE TAKEN: April 24th, 2008
Page 494

A. Yes, sir. MR. TREEBY: I then am finished, at least for now and hopefully forever. MR. BRUNO: Okay. Subject to the same reservation.

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REPORTER'S CERTIFICATE I, JOSEPH A. FAIRBANKS, JR., CCR, RPR, Certified Court Reporter in and for the State of Louisiana, do hereby certify that the aforementioned witness, after having been first duly sworn by me to testify to the truth, did testify as hereinabove set forth; That said deposition was taken by me in computer shorthand and thereafter transcribed under my supervision, and is a true and correct transcription to the best of my ability and understanding. I further certify that I am not of counsel, nor related to counsel or the parties hereto, and am in no way interested in the result of said cause.

____________________________________ JOSEPH A. FAIRBANKS, JR., CCR, RPR CERTIFIED COURT REPORTER #75005

33 (Pages 491 to 494) JOHNS PENDLETON COURT REPORTERS 800 562-1285

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