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McELVEE (VOL I)

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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, I) 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 23rd, 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: FLORIAN BUCHLER, ESQUIRE) (BY: SCOTT JOANEN, ESQUIRE) 855 Baronne Street New Orleans, Louisiana 70113 504-525-1335 - and LAMBERT AND NELSON (BY: HUGH P. LAMBERT, ESQUIRE) 701 Magazine Street New Orleans, Louisiana 70130 504-581-1750 - 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

REPRESENTING WASHINGTON GROUP INTERNATIONAL: STONE PIGMAN WALTHER WITTMANN, L.L.C. (BY: WILLIAM D. TREEBY, ESQUIRE) (BY: HEATHER S. LONIAN, ESQUIRE) 546 Carondelet Street New Orleans, Louisiana 70130 504-581-3200 REPRESENTING ORLEANS LEVEE DISTRICT: SUTTON LAW FIRM (BY: CHARLES E. SUTTON, JR., ESQUIRE) 2101 N. Highway 190, Suite 105 Covington, Louisiana 70433 985-249-5991 ALSO PRESENT: JOHN L. ROBERT, III, ESQ. KEA SHERMAN, ESQ. RYAN M. MALONE, ESQ. MARK S. RAFFMAN, ESQ. (VIA I-DEP) CHARLES LANIER, ESQ. (VIA I-DEP) JENNIFER SHUMAKER, ESQ. (VIA I-DEP) ADAM CHUD, ESQ. (VIA I-DEP) J. WARREN GARDNER, JR., ESQ. (I-DEP) VIDEOGRAPHER: GILLEY DELORIMIER (DEPO-VUE)

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- and WIEDEMANN & WIEDEMANN (BY: KARL WIEDEMANN, ESQUIRE) 821 Baronne Street New Orleans, Louisiana 70113 504-581-6180

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

EXHIBIT INDEX EXHIBIT NO. PAGE Exhibit 1 .................................8 Exhibit 2 .................................8 Exhibit 3 ................................10 Exhibit 4 ................................10 Exhibit 5 ................................26 Exhibit 6 ................................94 Exhibit 6 ...............................132 Exhibit 7 ...............................164 Exhibit 8 ...............................181 Exhibit 9 ...............................195 Exhibit 10 ...............................216 Exhibit 11 ...............................224 Exhibit 13 ...............................225 Exhibit 12 ...............................227 Exhibit 14 ...............................232 Exhibit 15 ...............................232 Exhibit 16 ...............................234 Exhibit 17 ...............................234 Exhibit 18 ...............................254 Exhibit 19 ...............................257 Exhibit 20 ...............................266 Exhibit 21 ...............................269

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Exhibit 22 ...............................271 Exhibit 23 ...............................273 Exhibit 24 ...............................274 Exhibit 25 ...............................288 Exhibit 26 ...............................292 Exhibit 27 ...............................294 Exhibit 28 ...............................318 Exhibit 29 ...............................330 Exhibit 30 ...............................333 Exhibit 31 ...............................335 Exhibit 32 ...............................343 Exhibit 33 ...............................346 Exhibit 34 ...............................348 Exhibit 35 ...............................353 EXAMINATION INDEX EXAMINATION BY: MR. BRUNO ................................12 MR. TREEBY ...............................215 PAGE

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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: MR. BRUNO: Let's go off the record for a second. (Off the record.) MR. BRUNO: All right. The first thing I'd like to do is mark as an exhibit the Amended Notice of Deposition. Both amended? Where's the original? All right. We have two Amended Notice of Deposition. One -What's the difference between the two? (Exhibit 1 was marked for identification and is attached hereto.) (Exhibit 2 was marked for identification and is attached hereto.) MR. JOANEN: One is Robinson, one is MRGO. MR. BRUNO:
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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.

We have two notices. One reflects -- the first notice shows that this deposition is being noticed in MRGO and in Robinson -MR. TREEBY: Robinson is in the MRGO category of cases. MR. JOANEN: Only Robinson. That's what he means. That's the caption for only Robinson. MR. TREEBY: It's in the MRGO category of cases -- Robinson is. MR. BRUNO: I'll tell you how the CMO tells you how to do it after the deposition. It says MRGO/Robinson. The second notice says pertains to MRGO. I want to make it clear on the record that this deposition, so that it's crystal clear to all involved, is being noticed in both the Robinson case scheduled to be tried in September and the MRGO class action

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scheduled to be tried in June of '09. The next things I'd like to mark and attach are two CVs. The first one has got the -- I'm trying to distinguish between the two. Technical background, it says Page 1 of 4. I'll mark it as 3, and the other one with a smaller print font I've marked as Exhibit 4. And that says -- I'm sorry, Exhibit 3 says 1 of 4, Exhibit 4 says 1 of 3. (Exhibit 3 was marked for identification and is attached hereto.) (Exhibit 4 was marked for identification and is attached hereto.) MR. MALONE: Reserve the right of Lake Borgne to ask questions regarding MRGO. MR. BRUNO: Sorry. Let me ask the question. Those of you who, prior to my remarks about the cases into which these cases are noticed, if anybody wants to change their appearance from appearing only to participating, I'm going to
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All right. Which is the usual stipulation. MR. LEVINE: I don't know what the usual stipulation means. EXAMINATION BY MR. BRUNO: Q. All right. Okay. All right, sir. Would you please, for the record, give us your full name as well as your home address. A. My full name is Melvin Millard Louis McElwee, Sr. My home address is 14154 Rev. Joseph White Road, Independence, Louisiana 70443. Q. Mr. McElwee, are you currently employed? A. Yes. Q. And for whom do you work? A. McElwee Brothers. Self-employed. Q. All right. And would you share with us, please, what is the general work of McElwee Brothers? A. The general work of McElwee Brothers is civil construction. McElwee Brothers is licensed highway, roads and bridges, for the state of Louisiana, License Number 31553.
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ask you to do it now to protect the record. And you've so indicated. Anybody else? Okay. Just for the record, everybody has the right to ask questions is the bottom line, including Barge. MR. TREEBY: Joe, are you going to ask questions in Robinson? MR. BRUNO: Yes. MR. TREEBY: And later ask questions for MRGO, or are you combining them together? MR. BRUNO: I'm just asking questions. I wouldn't know how to do that, Bill. I'm not as smart as you. The usual stipulation is fine with me. Anybody? MR. LEVINE: Whatever is in the Federal Rules of Civil Procedure. MR. BRUNO:

Q. Now, do I gather from the name McElwee Brothers that you've got a brother? Who's in this business with you? A. No, sir. That name was designated for my two sons who are brothers. Q. All right. Can I conclude then that you are the principal in the enterprise which is called McElwee Brothers? A. I am the 100 percent stockholder in McElwee Brothers. Q. All right. Can you give us just a general sense of the kind of construction, or construction work, that your firm has done over the last several years? A. Over the last several years we've, um -- performed pile driving, box culvert canal section work, pile driving for bridge work, and in particular one project for the Corps of Engineers along the Inner Harbor Navigational Canal, also the pile driving for the bridge work in Shreveport for Austin Bridge and Rode out of Irving, Texas. The Red River bridge crossing right outside of Barksdale Air Force Base. We did some work also for the LSU campus, as a subcontractor, recreational

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fields, redoing their parking lot, things of those natures. Q. I understand. Okay. All right. Well, if you don't mind, I would like to learn a little bit about your background, your education and some of your employment over time. You've been kind enough to supply us with two résumés; is that correct? A. Yes. Q. All right. And as I indicated on the record, I marked the four-page document as Exhibit 3, so why don't we pick that one up first. A. Yes. Q. And then we've got the other one which we've marked as Exhibit 4 which is a three-paged document. A. Yes. Q. My first question to you, sir, is what is the difference if any between these two résumés? A. The difference is my earlier years experience after coming out of the active component of the Air Force and working for the
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A. Yes. Q. And what did you do at the Air Force? A. I was a general purpose vehicle mechanic. If you look under technical development, on Page 1, it shows my Air Force experience of that Exhibit 3. Stationed at Chanute Air Force Base. (Off the record.) EXAMINATION BY MR. BRUNO: Q. Forgive me, Mr. McElwee, I'm just trying to have a record that when people read it it's very clear. So you left high school, you went into the Air Force. And on Page 1 of Exhibit 3, there's a description of the courses that you took, correct? A. Yes. Q. All right. Now, for how long were you in the Air Force? A. Four years. Q. All right. And what was the highest rank that you obtained before leaving? A. E4. Q. E4. A. Yes. Q. All right. After you left the Air
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Corps of Engineers as a quality assurance representative, it explains the professional development courses that I've taken with the Corps of Engineers and also some technical development courses that I've taken in the U.S. Air Force. It explains that in Exhibit 3, but in Exhibit 4 it doesn't. It's more management in Exhibit 4. Q. All right. Do both of those exhibits reflect your work experience, that is, the jobs that you've held over time? A. Yes. Q. All right. Let's look at Number 3, then. Did you grow up here in the New Orleans Metropolitan area? A. I was born in New Orleans. Q. Okay. It says here that you went to Alfred Bonnabel High School in Metairie, and you graduated May, '83. Is that correct? A. That's correct. Q. Okay. And then after that you were -you went into the Army? A. Went into the United States Air Force. Q. Oh, the Air Force. I'm sorry.

Force, what did you do, sir? A. Came back to New Orleans and was employed by the United States Army Corps of Engineers. Q. All right. For how long were you employed by the United States Army Corps of Engineers? A. Five years. Q. All right. Now, what were -- here we go. No, that's the National Guard. Let's see. Okay. Would that be reflected on Page 3 of 4 of Exhibit Number 3? A. Yes. Q. All right, sir. And you've indicated on this résumé that you were a quality assurance representative from December, 1998, to August, 1993. A. That's December, 1988 -Q. '88. A. -- to August, 1993, yes. Q. About five years, as you've already indicated to us. Okay. Now, you worked at the New Orleans District office? A. Yes.

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Q. Okay. We've seen in the past some organizational chart, and you'll forgive me for not having one in front of me today, but for which branch or division did you work within the district office? A. Construction division, the New Orleans area office. Q. Okay. And the construction division is a part of -- at that time, was a part of which branch, was that an engineering or -- I know I'm testing you now. A. You have engineering division, then you have construction division, at that time. Construction just dealt with the work in progress as it was taking place and monitoring the work in progress. Q. I see. Might that have been the projects section? A. Yes. Q. Okay. Now, as I remember these many depositions that we've been in -- all been involved in over the several weeks, there was usually a project manager assigned to a particular construction project. Do you recall whether that is accurate
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And if you can't tell me why it's unclear, then I can't change the form to assist you. MR. TREEBY: I told you what -MR. BRUNO: Let me finish. You've had your say. I asked the question because the purpose of an objection to form is to alert the questioner that there may be an opportunity to change the question, which I'm happy to do. But for me to change the question I need to understand what your problem is. And you've told me, I don't get it, so we're going to move on. MR. TREEBY: Well, I'll try to explain it if you want further -MR. BRUNO: Yes, I would like further explanation. MR. TREEBY: You argued with my explanation. That's why I -Page 21

in what you remember of your employment from '88 to '93? MR. TREEBY: Object to the form of the question. MR. BRUNO: What's wrong with the form, Bill? MR. TREEBY: It's vague. I don't know whether you're talking about the contractor's responsibility. It just vague. MR. BRUNO: I didn't ask about the contractor's responsibility. MR. TREEBY: I'm going to stand with my objection. Thank you. MR. BRUNO: That's fine. You know what, though? I'm going to try to respond -MR. TREEBY: It's unclear to me. If it's not unclear to you, then proceed. MR. BRUNO:

MR. BRUNO: No, I didn't argue with it. I said I didn't understand it. You said it's just vague which is very difficult for me to comprehend. Now, one more time. What's wrong with the form? MR. TREEBY: When you asked me, I said it's vague, I don't know whether you're talking about the contractor's responsibility. It's just vague. Now, what I meant by that was your question was a very general one, and you asked whether -- let me find the question again -MR. BRUNO: Okay. MR. TREEBY: -- there was usually a project manager assigned to a particular construction project. MR. BRUNO: Yes. That was the question. MR. TREEBY:

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That could be asking about whether the Corps of Engineers, who he was working for, and you're apparently asking for, had a project manager assigned to a particular project, it could be talking about whether the contractor doing the project had a project manager. I was not clear which it was; therefore, I objected to the form of the question. MR. BRUNO: And that helps me, because now what I'm going to do, Mr. Treeby, is I'm going to turn to the witness and I'm going to ask him whether or not there was a person at the Corps -okay -- not working for the contractor, who was the project manager. EXAMINATION BY MR. BRUNO: Q. And do you recall whether that was the way the Corps did its business in connection with Corps construction projects? A. When I was employed by the Corps of Engineers, that is the way the Corps did the
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the work of a quality assurance representative? A. Yes. Q. All right. Is there a description of that training on either Exhibit 3 or Exhibit 4? A. There's a description on Exhibit 3, Page 1 of 4, the middle of the page, professional development. Q. All right. I see that. And right underneath, sure enough, I see United States Army Corps of Engineers, Huntsville, Alabama, and then there are a series of -- well, why don't you tell me exactly what those words describe. Are those courses or -- you know, for example, Dredging, semicolon, Contract Administration, February, '93, twenty four hours. What are you describing there? A. I'm describing the dredging contract administration course administered by Huntsville, Alabama, for quality assurance representatives, project engineers and project managers. Each -- the next one is Concrete Quality Verification, October, '92. That was specifically on concrete. Inspection of
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business. There was a project manager that was not just responsible but maybe for one project, but maybe two or three. EXAMINATION BY MR. BRUNO: Q. I see. A. As a project manager. Q. Okay. Fine. I'm glad we cleared that up. So, um -- where was your job in the structure of that branch? A. If I can explain as far as layers, there was a project manager over particular projects, but then there was the area office which had project engineers assigned to a particular project. I myself was a quality assurance rep, reported to the project engineer, who in turn reported to project managers. Q. Okay. Great. That's very helpful. Thank you. Did you work as a quality assurance representative for the entire five years? A. Yes. Q. Okay. Now, did you receive any training by the Corps in order to help you do

concrete, makeup of concrete, um -- testing of concrete, from the Corps' aspect. Construction Quality Management, that's more managing relationships with contractors when administering projects. General Construction Verification is, um -- training on the use of the government documents, in which situations you use them, how you use them, the reference materials. Q. Okay. A. Soils Quality Verification, strictly dealing with soils. Soil is anything smaller than rocks. Q. Okay. Thank you. Now, were these courses courses that you were required to take as a condition of your employment? A. Yes. Q. Okay. And when it says 40 hours, does that reflect 40 classroom hours or lecture hours? A. Lecture hours, yes. Q. Lecture hours, okay. All right. Now, let me -- you've been kind enough to produce in response to a subpoena issued by the Washington Group International some documents, and in this

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stack of documents I came across a document which I think is in this stack right here. (Indicating.) And mine is entitled Instructor Listing. A. Yes. Q. All right. Would you pleas, for the record, identify this document. What is it? A. This document, and the following pages, is an excerpt from the soils quality verification course back in December, '90. The earthwork quality verification training course was taught in Huntsville, Alabama, and the list there is the list of instructors at the course -- the first page. Q. I understand. All right. So first of all, can I assume that this document, which by the way I'm marking for the record as Exhibit Number 5, was given to you at the that you took the course? (Exhibit 5 was marked for identification and is attached hereto.) A. Yes. EXAMINATION BY MR. BRUNO: Q. All right. Was it part of the training materials that you were given?
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Q. Forgive me for interrupting you, but while we're on Mr. Allen, let me ask you just a few questions about him in particular that may help us a little bit. Do you know what Mr. Allen 's job was at that time? A. That I do not know. Q. Okay. Now, do you see here under his name it says, United States Army Engineering District, New Orleans? That refers to the district office? A. That's the New Orleans District office. Q. All right. Now, below that it says engineering division, engineering section. Do you know what that means? A. Yes. The engineering division is the other division I mentioned to you. Q. Okay. In other words, we had your project division -A. Construction division. Q. -- construction division, then you had your engineering division. A. Yes. Q. Okay. And then do I gather that
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A. Yes. Q. All right. Now, do you know, as you sit here today, which United States Corps of Engineers employees employed at the New Orleans District office during the period of time 1988 to 199 -- let me remember -- '93, were required as a condition of their employment to take this course? A. Yes. Q. All right. Who at the district office would be required to take this course? A. If I may start from Page 2 -Q. Yes, sir. A. -- and Page 3, that's the list of students that went during the time I went. On Page 3 you see my name Melvin McElwee, first column, second name. Q. I see that. A. And if you look and see New Orleans, Allen Richard, on Page 1 -Q. Yes, sir. A. -- from the New Orleans District, he was required to take it. You see the fifth name down on the first column Donald Constantine --

there's a levee section within the engineering division? A. Yes. Q. Okay. Thank you so much. Let's move to -- let's see. You mentioned our next gentleman was Donald Constantine. A. Yes. Q. Now, here it says attention: CELMN-OD-OM. Do you know what that means? A. Yes. That's a description of his division inside the Corps. Anybody that worked for the Corps at that time could tell where you worked and what office you worked in. That's the Corps of Engineers lower Mississippi -- I'm trying to remember the acronyms for that CELMN. Q. Lower Mississippi New Orleans office, I think. A. Yes. Q. That's what we've heard. And then there's a dash and it says OD. What does that mean? A. That's another division in the Corps. Right now I can't tell you which one. Q. It would be operations division?

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A. Operations division. That's correct. Q. All right. And again, I've been looking at this a lot more than you have over the past days, so -- and then it says OM? Do you know what that -- would that be a -MR. TREEBY: I object to leading the witness. MR. BRUNO: It's called discovery, Mr. Treeby. You can lead the witness in discovery. MR. TREEBY: Object to the form of the question. Leading. MR. BRUNO: Fine. EXAMINATION BY MR. BRUNO: Q. OM. Would you know what OM stands for? A. I don't know exactly, but I'm assuming something maintenance. Q. Thank you. Now, let's see. Going on down the line, moving to the second column, I then come across a Leonard Hunter? A. Yes.
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Q. You've already told us that. NO. What is that? A. New Orleans area office. Q. All right. And Q? A. Quality assurance. Q. There you go. All right. If you'd follow with me down, I see then -- is that Lois Pierre? A. Yes. Q. Anything -- do you remember Lois Pierre? A. Vaguely I do. I don't remember his job position. Q. Is there anything written here that would assist us in understanding what he did? A. No, sir. Q. All right. Then we have Brian G. Weidenbacher. Do you recall Mr. Weidenbacher? A. No, sir. Q. All right. Anything under his name that would help us know what he did? A. No, sir. Q. Okay. All right. To the best of your recollection, Mr. McElwee, would this be a complete list of all of the folks who took the
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Q. Do you remember Mr. Hunter? A. I can't remember him right now, but if I had a photo I'm going to say yes I know him. Q. Do you remember what his job was? A. No, sir. Q. All right. And is there anything, you know, under his name that would help us understand? A. No, sir. Q. Carol Johnson. Do you recall this person? A. No, sir. Q. All right. And there is nothing -- or is there anything under this person's name which would assist us in learning what -- I don't know if that's a he or a she, but -A. Yes. Second line. It says ED-FT, engineering division. And I don't know if that's foundation testing, FT. Q. All right. Okay. And then if we would move to the next page, and I see you. And let's just walk through you. You see the New Orleans District, you see then CD, which is the construction division. A. Construction division.

course with you? A. Yes, sir. Q. All right. Let's move to the next page. You with me? A. Yes, sir. Q. You see the upper right-hand corner? A. Yes, sir. Q. Do you know what the significance, if any, there is to -- and I'm guessing it's Roman numerals, I could be wrong -- either VI or Roman Numeral VI.1.1? A. To my recollection, that was the number for the course. Because each course that I mentioned to you had a number, and then they could identify the chapter and then the page. Q. All right. Can I assume from that answer that there is some book somewhere which contains those pages? A. It's a binder. Q. It's a binder? A. Yes. Q. All right. Okay. Do you recall the name of the binder? A. The name of the binder for this

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particular course was soils quality verification. Q. Sorry. I didn't ask the question properly. These pages that I have in front of me which are described, again, either -MR. BRUNO: Does anybody know if that's a Roman numeral or just a VI? A. It's a Roman numeral. EXAMINATION BY MR. BRUNO: Q. Roman numeral. Okay. That's fine. It says VI.1.1, and then it continues to VI.1.12, and then I see after that there are a series of plates. A. Yes. Q. I just assumed, perhaps incorrectly, that these pages were all of the pages that related to the course, soils quality verification. A. Those are not all the pages. Q. Okay. All right. So you got a whole binder full of paper -A. Yes. Q. -- for the course. A. Yes.
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it. But would you just for the record tell us what were the circumstances of your writing Mr. Bob Bea and enclosing a copy of these papers? A. To my recollection, this was immediately following the failure of the levees in New Orleans. And I had spoken and talked with Dr. Bea via E-mail and telephone, and in our conversations we identified, with the uniqueness that we had as far as he used to work with the Corps and I used to work with the Corps, and in the media there was a lot of fluff I would call it, no one knew what happened in the area, and I considered it to be foolishness. And I said, Dr. Bea, I mean, we all are trained in this, here's the Corps courses. How can somebody not know? Q. Okay. All right. Why don't we go ahead, just say that one more time loudly, because I didn't know if I even understood it. You said we something or other. A. Dr. Bea and I saw in our conversations where we had some things in common. He worked for the Corps of Engineers, and I worked for
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Q. All right. This is just one section of that whole binder. A. Yes. Q. Okay. I understand now. Do you still have the whole binder? A. Yes. Q. Okay. May I ask, if you don't mind, if we could make a copy of that whole binder? A. I will deliver it to IKON for you to make a copy. Q. That's fair enough. And then of course everybody can obtain a copy from there. Now, let me ask you this: The context of these pages are that they are attached to a letter by yourself to Mr. Bob Bea. A. Yes. Q. Okay. The letter is dated Friday, October 14, 2005, and it says what it says. A. Yes. Q. I'm happy -MR. BRUNO: Anybody have any interest in attaching this? EXAMINATION BY MR. BRUNO: Q. Okay. I don't have any need to attach

the Corps of Engineers. And during the time frame after the storm, there was a bunch of fluff, I would call it, in the media when people were saying they didn't know why the levees had failed. Q. Okay. A. And I had mentioned to Dr. Bea, I mean, everybody that dealt with the Corps and worked with the Corps was very familiar with what happened. And as an example, I sent him our training, a copy of what we've been trained on. Q. Okay. And do I gather that your selection of these pages which I have already marked as Exhibit Number 5 represent, in your mind, a portion of that training? A. Yes. Q. Is that correct? A. That's correct. Q. All right. Now, let's, if you don't mind, look at Page VI.1.1. It's entitled seepage and groundwater control. A. Yes. Q. All right. Would you tell us, please, generally, what is seepage?

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A. Seepage is the flow of a fluid, water, whatever it may be, through a median [sic] I would call it, whether it's soil or whether it's filter cloth, fabric, whatever. Q. Right. A. In this particular instance, the course was catered to explaining the history of seepage over time, since it's been documented. In fact, the first paragraph talks about Italy and killing three thousand people. Um -- and the course described methods of inspecting and noticing seepage to determine whether or not there were potential problems. Q. Okay. All right. If I look at the first sentence -- I'm going to read it to you -- it says, perhaps no single feature of an earthwork project deserves as much attention during construction as the drainage system. Could you explain that to me? A. When looking at a project, and you determining what you're going to do with fluid flow, meaning rain, runoff or whatever, um -attention needs to be placed on what are you going to do with the collection of water? If it's in your backyard, how are you going to get
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within the discussion of this paper? A. Yes. Q. All right. A. The foundation portion would. Q. The foundation part, the part of the structure that goes below the earth? A. Yes. Q. All right. Now, suppose one were asked to do excavation, but you're not really building anything, you're just removing stuff. You see the distinction between the building and the excavation? A. Yes. Q. I'm wondering if that would be, in your mind, considered an earthwork project? A. Yes. Q. And why is that? A. Because you're dealing with parts of the earth that are smaller than a pebble. Q. Okay. All right. Now, the next sentence says, however, since the drainage system generally controls a hidden force, the force of water seepage through soil, it's importance is sometimes not fully appreciated. Okay, now, I just need you to help me
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rid of it? Which ways are you going to get rid of it? Are you going to dump it on your neighbor? Are you going to put something in between you and your neighbor, a swale? Are you going to let it drain into a pipe and flow out towards the street? Any project, civil project, you must take that under consideration, when you're -Q. Okay. Now, you've used the words civil project this morning already. What do you mean by civil project? A. Civil projects are projects dealing with streets, foundations, usually buildings, close to the earth. You're going to deal with some material formed by the earth. Q. Okay. All right. I also see the phrase earthwork project. What does that mean? In your mind. A. In my mind, an earthwork project is a project dealing with soil. I'll say soil anything smaller than a pebble. Sand and below. Q. All right. So, if one were asked to build something on top of the land, a house or, I don't know, any structure, would that fall

understand, first of all, what's the hidden force? A. Hidden forces, to my recollection, would be fluid forces below the surface that travel to, um -- vacuum pockets. You know, it could be any open area, any open spot. Um -it may start off as a trickle, and then eventually eat it's way through and before you know it it's a heavy flow. Q. Okay. All right. I'll have to confess to you I'm just a lawyer and I don't really know a lot about engineering and things, but, so you're telling me that there's movement of water under the earth. I mean, I know about aquifers and things because you drill wells in order to get access to water that's below the surface. A. Yes. Q. So are you describing the concept of the water that's below the surface and how it moves through the soils? A. Yes. Q. Okay. I understand. A. Different from the aquifer. Q. It's different?

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A. Yes. Q. How is it different? A. The aquifer is a stream where water may flow just in a sand layer throughout the earth and travel all the time. Q. Uh-huh. A. It's constantly doing that. Q. Right. A. But outside of the aquifer, you have water tables, traditionally in different areas, that can produce their own aquifers if found in weaker pockets of soils. Q. All right. So obviously the rain falls, it gets absorbed by the soils below, and it goes somewhere below the soil. A. Yes. MR. TREEBY: Object to the form of the question. Leading. MR. BRUNO: Well, okay, fine. EXAMINATION BY MR. BRUNO: Q. When the rain falls from the sky and it hits the earth, where does it go? A. The earth is composed of water, and
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Is there any other options for the water? A. I guess I'm not understanding when you say options. Now, it can travel. Q. That's what I mean. A. Yes. Q. So there's a third option. It could move across the surface. MR. TREEBY: Object to the form of the question. Leading. EXAMINATION BY MR. BRUNO: Q. Now, the next sentence says, and this is really striking, these hidden forces can tear down a mountainside, as occurred in 1963 at the Vaiont Reservoir, Italy, killing three thousand persons; destroy earthen structures such as the Baldwin Hills Reservoir in Los Angeles, California, where five lives were lost in 1963 and $15 million property damage resulted; or produce runway failures as occurred at the Cleveland, Ohio airport in 1967 where three thousand feet of concrete runway pavement failed and broke up into basketball sized pieces due to inadequate subsurface
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water doesn't ever change, it just goes -- it's the same amount all the time. It evaporates and then it rains, it gets soaked in the earth, it goes to the rivers and evaporates again, comes back down again. Whatever we do in between then, it's the same amount of water. Q. Okay. So after the water from the sky hits the earth, where can it go? A. It's going to go -- if it can penetrate a soil, it's going to go -- it's going to saturate the soil. Q. Okay. A. Once it saturates the soil and heat is applied, then it will evaporate. The sun. Heat by the sun. Q. Okay. A. It doesn't have to be any man-made heat. It will begin to form what we consider to be fog, um -- humidity -Q. Right. A. -- and it goes back into the clouds. Q. I understand. All right. So we've discussed two options. One, the water that falls from the sky can turn into vapor, it can go below the soil.

drainage. And just to complete it, it says, many more examples could be cited but the examples mentioned should clearly show the devastating power of uncontrolled seepage of water. Now, help me understand. I'm still confused. What is this power of uncontrolled seepage that's referenced in this paragraph? If you know. A. The power is -- I'm going to talk engineering now. Q. That's fine. A. If you don't understand, I'll try to break it down. Q. That's fine. A. In engineering we have different energies called kinetic, potential, and water is in that category potential. It's sitting there waiting to do something, go somewhere. You get enough of it, it's weight itself creates an opportunity for some destruction if something in front of it is not strong enough to hold it. That is the power that they're talking about. Q. Okay. All right. Now, the next

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subparagraph says basic considerations, and then they make a reference to a laboratory. Did you guys go to a laboratory and watch some demonstrations? A. Yes. Q. Okay. Do you remember what -- you know, what those demonstrations showed? A. Yes. We, um -- went to the Vicksburg, laboratory, that's one of the research centers for the Corps of Engineers, and there was a mock model of the Mississippi River, and just on that small scale showing the force of water traveling throughout the United States from the north down to the south in New Orleans, and just watching that small model and the amount of currents developed in that model as the water was traveling, we generally could take a multiplication factor and say, this is what's happening throughout the United States. Q. I see. Okay. Now, they also talk about a quicksand tank. A. Yes. Q. Do you remember the quicksand tank? A. Yes. Q. What was that all about?
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height or whatever, what happens to the particles of the sand, the sand becomes fluid. Q. I see. A. And then given vibrations at that time that building would collapse. That happened in some part of the world at one time where some buildings -Q. All right. So you mean just the fact that the water went below the surface, moved into an area where there was some sand and because the water charged the sand -A. Yes. Q. -- that it somehow had some impact on the ability of the foundation to hold up the structure? A. It has a major impact. Q. Okay. All right. A. Because the sand becomes fluid. Q. I see. I see. All right. And then on this page there are things called rate of flow, coefficient of permeability, hydraulic gradient, and area. So when are all these things? What do those things relate to? A. Those are engineering calculations for soils, and you can pretty much predict a
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A. There was a model there that explained liquefaction. It showed sand sitting dry and a building on top of it, and the Corps demonstrated if this sand is charged, we call it, water placed in it -Q. And I'm going to slow you down. Okay. If the sand is charged. That means if you put water in the sand? A. Yes. MR. TREEBY: Objection to the form of the question. Leading. MR. BRUNO: I don't think that's leading, Bill. MR. TREEBY: Well, that's fine. I just have to make my objection. MR. BRUNO: I know you do. You'll get fired. A. Charge means water being forced into it. EXAMINATION BY MR. BRUNO: Q. All right. Okay. A. Whether it's by hydraulic pressures,

soil 's behavior based on those characteristics listed. Q. Okay. All right. And then let's see. Let's just keep going here. If you look at the next page, VI.1.3, we have -- in the last paragraph, it says, suppose that rather than increasing the thickness of the sand an impervious clay blanket top stratum had been placed over the sand, in this case more weight is provided to the sand and to a large extent the seepage is stopped. However, if the pressure beneath the clay exceeds submerged weight of the clay, an uplift pressure will occur. This -MR. TREEBY: You didn't read it correctly. MR. BRUNO: An uplift pressure will occur. What did I miss? MR. TREEBY: You're reading the word pressure when it says failure. A. No. MR. BRUNO: No.

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MR. TREEBY: Sorry. I must be at the wrong paragraph then. MR. BRUNO: No, you're at the wrong sentence. The next sentence is, this is commonly noted as an uplift or heave failure. MR. MALONE: I read the same thing. It's an uplift failure. MR. BRUNO: Yeah. Well, I just read uplift failure. MR. TREEBY: You said pressure. MR. BRUNO: I'm sorry. If I said pressure, it says failure. EXAMINATION BY MR. BRUNO: Q. What usually occurs in nature is that the top stratum may be interspersed with root holes, shrinkage, cracks or other discontinuities which permit some of the sand to escape through channels in the top stratum. When seepage tends to localize instead of
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pressures. If you take -- if I can describe a fish tank and you fill it up with water in the inside, but if you cut a hole on the bottom of that tank, the force of that water is very strong and it's correlated to the depth of the water. Called head pressure. Q. Right. A. When you cut that hole, that water wants to go out of that hole, and it will push the glass completely out of the way before you finish cutting it. But as it's coming out it has to go somewhere. So if there's a clay blanket next to the fish tank that you built, and then you also have a sand bottom underneath, that sand layer is going to become charged. When it becomes charged, at some point if that clay blanket is not heavy enough due to its weight to hold the head pressure and stop the water from trying to go down, then you'll get what's called an upheave in the clay blanket, and then the water will come out of the tank, go through the sand and come out the -Q. Okay. All right. Yeah. It's simple, I guess. The water is moving, and if the water
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causing the entire top stratum to heave or become quick, active erosion of subsurface material occurs and concentration of seepage occurs in localized channels. This is what causes sand boils. Okay. My goodness. What on earth is heave? A. Heave is the upward movement of a material. Q. Okay. A. And it doesn't necessarily have to always be soil, it can be concrete. You walk the streets of New Orleans and there's a force pushing something up from the bottom -Q. Okay. A. -- that's heave. Q. All right. A. In this particular case it's heave of a clay blanket. Q. And that somehow or other this heave is related to seepage? A. Yes. Q. All right. Can you help me understand how the seepage causes the heave? A. Water has what's called head

has nowhere to go it's going to go where there is the least amount of pressure. A. That's correct. Q. So if there's something keeping it from going below, something from keeping it from going left or right, the only place else it could go is up. A. That's correct. Q. And when it goes up, that's called a heave. A. That's correct. Q. I see. Okay. Thank you. Now we're talking about a sand boil. What on earth is a sand boil? A. A sand boil is -- I explained earlier the process of charging the sand and the sand becoming liquid. After it becomes liquid it begins to flow. Once the clay blanket is upheaved and an opening is created, then the water -- the sand comes out like it's boiling. And not under any heat effect or anything, but it just comes running out on top of the clay blanket, and then it continues the flow until the sand that was underneath the clay blanket is eroded, it's gone. It comes out. The sand

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comes out with it. With the water. Q. All right. I got you. Now, let's go to VI.1.5. It says here, in this first full paragraph, Dams are rarely if ever constructed on completely impervious material and consequently there is seepage beneath the structure as well as through it. The seepage beneath the structure is commonly referred to as underseepage. Since water seldom stands behind a levee a sufficient length of time for seepage to occur through the embankment, underseepage is the primary problem associated with levels. Okay. Explain that to me, please. Why is underseepage the primary problem associated with levees? A. Why? Because levees are man-made structures constructed of impervious materials, meaning clay-like, where water doesn't penetrate it very easily. The construction of the levee is controlled. It's compacted. It's put in place. But anything below that, if you don't go down deep enough, is existing material, uncontrolled. So if you're not taking and building a levee on another type of
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already have a problem, and if underseepage is a problem associated with levees, then I'm wondering if it is important for somebody who is interested in making sure the levee doesn't fall down to evaluate the potential for underseepage to damage a levee. Is that something that you learned from this course? MR. TREEBY: Object to the form of the question. I'll accept your objection. A. That is something I learned from the course. EXAMINATION BY MR. BRUNO: Q. Uh-huh. A. That it was very important to understand any impact of work associated with levees. Q. Why is that, Mr. McElwee? A. Levees were constructed for safety reasons, to protect something on another side of it, whichever side it may be on -Q. Right. A. -- from water. Q. Right. A. And if you're doing any work relative
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impervious material, you'll begin to have some problems like in the fish the tank, you are still got that little opening that that water can travel through. Q. I see. Did you know before you took the course that underseepage was the primary problem associated with levees? A. Before I took the course, no. Q. Okay. Well, I mean, you know, gosh, it sounds -- this is something you can't see with your eyes, right? MR. TREEBY: Objection to the form of the question. Leading. EXAMINATION BY MR. BRUNO: Q. Is this something one can see with your eyes, that is, the movement of the water under the earth? A. Not through the earth, no. You can't see it. However, once it becomes a problem you'll see residuals on the other side. Q. Well, now, I could be crazy here, God forbid, I don't want to be accused of leading you, but it seems to me that if, A, you can't see the underseepage under the ground until you

to that levee that's impacting that levee, you increase the risk of damage to property and to lives. So at all times, the Corps would stress to its quality assurance representatives, inspectors, and project engineers, to monitor things of those sorts when you're on a construction project. Q. Okay. All right. Now, things of those sorts -- now, first of all, I mean, let me just -- I'm just curious, because I'm a contractor now. Okay? And I've been asked to dig a hole, not on the levee, not even, you know, within ten feet of the levee or fifteen feet of the levee, I'm digging this hole 200 feet from the levee. Okay? Now, how am I supposed to know, if I'm the contractor, that my hole digging may or may not have some impact on this levee? A. As a contractor, how are you supposed to know? Q. Yeah. How do I know? A. There's various ways that you would know, because as a contractor, you're going to have at least some data given to you by the Corps of Engineers in the bid solicitation

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documents. If you don't have that information, the Corps is going to give you some information to contact someone where you can find out whatever you need to know prior to doing work on a -- on a Corps of Engineers project in the New Orleans area district. Q. Okay. Well, would you agree with me that the ordinary guy on the street, okay, who would maybe be, you know, engaged in -- he digs holes in his backyard or, you know, on his farm, that this business of underseepage as it relates to the potential for harm to a levee, that's not information that most folks have. MR. TREEBY: Objection. Leading. EXAMINATION BY MR. BRUNO: Q. Would you agree with me on that? MR. TREEBY: Objection. Leading. MR. BRUNO: It's noted and it's not leading. A. I would agree with you that, no, most people don't have that information, and most people don't look for that information because they don't have the knowledge to look for that
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proposed work and the levee or flood control project? A. If I can make clear, when I said most people don't know, I'm speaking of personnel that are not in the craft of engineering and construction. But someone that's in the craft of engineering and construction, seepage becomes a problem before they begin to do construction. That's one of the things they have to consider. You must consider it. It's -- in the planning process, if the Corps issues a contractor a set of documents, the Corps gives them information in the documents, if it's not in the documents they're going to tell you where to go to get that information for your particular job, you can ask all the questions you want -Q. Okay. A. -- get all the clarification you want prior to you beginning your construction process. If you are doing work next to a levee -- I'm going to speak for the New Orleans area because that's where I'm born and raised and worked -- it's general knowledge for most contractors that work in that area, the
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information. EXAMINATION BY MR. BRUNO: Q. All right. So -- well, if that's true, I mean -- so I guess I'm still a little confused, because I'm trying to understand, then, if most people don't have the knowledge, and you are asked by the Corps to do some work, you know, around a levee, and again, I don't know if it's 100 feet or 200 feet or 300 feet or 500 feet -- let me ask you this question: How close to a levee -- how close does the work that's contemplated have any potential impact on this seepage business, based upon the training that you received at the Corps? MR. LEVINE: Objection. Vague. A. I didn't quite understand your question. EXAMINATION BY MR. BRUNO: Q. Okay. What I'm trying to get at is, we've got a contractor that's been asked to do some work. Okay? And so I guess the first thing I'm sort of curious about is, at what point does the underseepage issue become an issue relative to the distance between the

importance of understanding the soils and your impacts. Q. Uh-huh. A. I don't know many contractors that don't know the impact of working next to a levee. Q. Okay. All right. A. And I definitely don't know any engineer that doesn't know, because the engineers are trained in that. Q. All right. So I guess someone who's going to be asked to do this work, because they've been asked to do the work in the first instance, that is, they're a contractor or engineer, when they get the knowledge that there is a levee somewhere in the vicinity, you would expect, based upon what you've just told me, that they would at least make the intellectual inquiry about whether or not that may have some impact on their work. Is that what you said? MR. TREEBY: Objection. Leading. MR. BRUNO: No, it's not.

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MR. TREEBY: Is that what you're saying, and you put about so two sentences of long information. If that's not leading there isn't a leading question. MR. BRUNO: And if that's leading there's no such thing as a non leading question, because all I'm doing is indicating what he's already put on the record. MR. TREEBY: We disagree. MR. BRUNO: We will disagree on everything. MR. TREEBY: I doubt it. MR. BRUNO: I know we will. Okay? Particularly now -MR. TREEBY: Typical hyperbole. MR. BRUNO: It's typical that, you know, you would say things like leading and technical objections when you don't
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No. On the contrary, Bill, you know as well as I do what you're doing, and it's okay. MR. TREEBY: Okay. MR. BRUNO: Just do it. But for me to recap what the witness said and ask him if I have a correct understanding is not leading because the evidence is already on the record and I'm simply wanting to make certain that I understand what he's saying. That is not leading. EXAMINATION BY MR. BRUNO: Q. And to satisfy Mr. Treeby, why don't you just tell us, then, what is, in your mind, based upon the course that you took, the process that would ordinarily be undertaken by an engineer or by a contractor who is contemplating doing some work around a levee. And I'm just going to ask you to define what around means. Give it up. A. What's to be anticipated by a contractor or an engineer when constructing
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loke what you're hearing, instead of getting to the subject of the matter which is what the witness has to say. MR. TREEBY: I would rather here this witness testify instead of you, Mr. Bruno. MR. BRUNO: I think we've been hearing the witness testify. You just don't like what he has to say, which is unfortunate for you. MR. TREEBY: I haven't objected to the witness, I've objected to your leading questions, and I will because I have to protect the record. If you want to -- if you want to hold off leading objections until trial, if you want to -MR. BRUNO: I'm not -MR. TREEBY: I'll be happy not the make the objection. MR. BRUNO:

work around a levee would be the impact of the work on the levee, not the impact of the levee on the work. The levee is there. It's a structure for a particular purpose. It's almost like a building. If we're going to dig a hole next to the building we have to consider digging this big old hole next to the building, what impacts -- what's going to happen to the building, is it going to stay intact? Is it going to stand? Is the levee going to stay intact? Will the levee stand? There are -varied and many degrees of assessments, we call them, that a contractor or an engineer would take into consideration when getting ready to perform any works of this nature. It's almost -- and I'm going to kind of try to make a parallelism here. It's almost like being a lawyer. I'm not a lawyer. But if I'm going to take on that task I need to be prepared and trained to. Such with the contractor and engineer. If you're going to take on the task of working around structures, you need to have the knowledge of it. If you don't, you don't need to be in that business. It is -- an engineer and a contractor

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has duties and responsibilities that are in all courses, whether it's the Corps of Engineers' or whether it's college courses, of responsibilities to the public. And to say don't worry about it, I'm not going to look into, or it doesn't matter because that structure is not a part of my job is a total derelict of your obligations to the public. Public safety is number one. For any contractor -- should be. If it's not, he doesn't need to be in that business. Or any engineer. And, um -- when you're taking on that type of work, if you don't know what you're doing you need to hire someone that knows what they're doing. Q. All right. (Brief recess.) EXAMINATION BY MR. BRUNO: Q. All right. If we may, I would like to just continue down the same page because I'm curious about this. It says, Plate 3A shows how underseepage can occur beneath a levee system. At the normal river stage the water table is below the relatively impervious top stratum and no danger exists. And then it
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Q. Why yes. I see that. A. -- okay, that sand stratum underneath the impervious material, the clay, which is hash marked diagonally -Q. Yes. A. -- it has a normal at charge of flow through it. Water is going to go through it. There's no problem there. In fact, if water stayed at that level you wouldn't need a levee because it's just doing its normal thing, traveling through the earth. Q. Okay. A. The problem comes in when you have extra water brought in by whatever source to raise the level of water. And when you raise that level of water, we go back to talking about that head pressure, the weight of it acting downward, that's when the problem comes in. If you have a levee next to it which is construct here, you don't have just this water flowing in, you got the flood stage water which is going down through this opening -Q. I see. A. -- creating more pressure. Now you got pressure underneath that system -Page 69

says, during flood stage, however, seepage entering the substratum through the bed of the river, riverside borrow pits or any other opening in the top stratum creates an Artesian head in the substratum under and landward of the levee. The term Artisian simply means that the water in the sand is under pressure. For example, if a pipe or piezometer were placed through the top stratum into the substratum shown in Plate 3A, the water level in the pipe would rise to the elevation of the dashed line, piezometric head. The height of this column of water above the substratum is the Artesian head. Now, do we have this Plate 3A in here? A. Yes, sir. That's it. Q. Okay. Here we go to Plate 3A. Now, I guess the thing that first confuses me is what is the difference between the potential for damage when there is no flood stage versus when there is flood stage? Help us understand that. A. Looking at Plate 3, Figure A, the top page, if you see where they say normal river stage, where this arrow is pointing at the level of water --

Q. Okay. A. -- and it's going to go through its weakest point. And it will create -- eat up this layer and create a sand boil. There's a figure of a sand boil on the bottom. Q. That B picture is a -A. Yes. Q. That little mound looking thing. A. That mound thing. Q. That's a sand boil. A. That's a sand boil. Q. I see. All right. A. Water is going to come out of that and continue to flow. Now, that's a pretty looking sand boil but they don't always look nice and neat like that. In fact, if you see some around here they'll never look nice and neat like this, it will just be sand rolled out -Q. I see. A. -- in the area where it created the boil. Q. So we're looking at A, and the water is at its regular stage. So you're telling us that -- I think, tell me if I'm wrong -- in the normal stage of the river you're going to have

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water in that sand. A. Yes. Q. Okay. All right. But when you have a flood stage, you obviously have more water. Right? A. You have more water, and the difference in measurement in feet between this normal stage and that flood stage is the extra added head pressure, we call it. Q. Okay. Now, you see how the arrows are going from left to right? A. Yes, sir. Q. Why is that? Why aren't they going the other way? A. Well, because the pressure of any river is higher than the surfaces around it, so the water wants the flow from the river, not towards the river. Q. I see. A. Only in rain stages when it flows off of hills you'll see it coming towards the river on the top. Q. Got you. A. But anything at the surface of the river and below wants to flow outward.
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Q. I see. A. And ship those boulders somewhere else. Still a borrow source. Q. Right. A. But you can collect sand from a borrow source and ship it somewhere else for cement, to manufacture cement. Then you can collect the clay material, which I've learned with the Corps in the Bonne Carre Spillway at that time was the sole source for impervious material, and they restricted it to the Corps' use only, and that's the material we were watching build the levees with. Q. Okay. A. And the Corps would allow contractors to go to designated areas in the Bonne Carre Spillway or any other source. You know, if the contractor had a connection to some land somewhere that he could get the same type of material to be used in a levee, they allowed him to go get that material and bring it in, so to truck as far as sometime 25, 30 miles away. Now I think it's further than that because there's a demand for it. Q. All right. So am I correct in
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Q. Okay. A. Just like taking some water, pouring it here, and if a bowl didn't catch it it's going to go out on the table. Q. All right. Now, let me ask you this: First of all, did you know what a borrow pit was before you worked for the Corps? A. I had an idea only because my dad and several of his friends was in construction, truck hauling out of Bonne Carre Spillway. I knew there was a borrow source there. Q. Did the Corps teach you what a borrow pit was? A. They taught me the in-depth study of what a borrow pit was. Q. May I learn then what you learned from Corps about what a borrow pit was? A. Yes. I learned to classify the types of materials in a borrow source. Q. What is it? A. A borrow source is anywhere you collect material from one place to transport it to another one. I say collect material because that material varies. You can collect from a rock quarry which is a borrow source.

assuming, then, that a borrow pit is something that man creates? A. Definitely. Well, creates as in for his use. But it's originally there by nature. Q. All right. The stuff is there. A. Yes. Q. But it becomes a pit because man takes it out of the ground, and when you removed stuff from the ground you have a hole there. A. You have a hole there, that's correct. Q. All right. So is a borrow pit a hole? A. Well, no, you done used it at that point. The borrow is what you've taken out of it. Q. Oh, I see. The borrow. I'm with you. The borrow is the word that you use to describe the material that you actually remove and use. A. That's correct. Q. The borrow pit is what's left after you take it out. A. That's correct. Q. So that's a hole. A. That's a hole. Q. Okay. I'm with you. A. Well, can I clarify?

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Q. Yes, of course. A. The pit is the area where you're doing this. Q. Uh-huh. Oh. So the pit is a location. A. That's correct. Q. All right. Is there a word to describe the hole that's created when one removes the borrow from the borrow pit? A. There's several words. Q. What are those? A. Number one, a void. Q. A void? A. Because there's nothing left. Q. Got you. A. A hole. Q. Okay. A. A pond, because after it gets recharged with water, then you can go fish in it. Q. Got you. Okay. A. Um -- and then there are other various terminologies I just can't think of. Q. Okay. I understand. Now, why, if you know, do you see on
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Q. -- from going down below. A. That's correct. Q. Obviously so if you take the clay away, you dig a hole, now the water's got a way to get in -A. Travel. A way to get in. Q. -- to the sand. MR. TREEBY: Objection. Form of the question. EXAMINATION BY MR. BRUNO: Q. I want to make sure I understand this. And we'll note his coming objection to leading, but is not. When you remove the clay, you now have an opening through which the water can pass to the substratum below; is that correct? MR. TREEBY: Objection. Leading. EXAMINATION BY MR. BRUNO: Q. Is that what you said? A. That's correct. Q. That's what you said. MR. TREEBY: Objection. Leading. A. That's correct.
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this Plate 3A, why is borrow pit even shown? Is it relevant at all to this whole business of underseepage? A. Yes. Q. Why? A. Because the Corps is trying to illustrate their particularity in where you're digging your borrow pits, and the proximity and the effects of it, like I mentioned earlier assessments being made -Q. Right. A. -- on what could happen if you digging too close to a levee, the undermining of that levee, the undermining of that structure. They're illustrating that point there. What you're doing is adding the extra charge of water that potentially could happen because you undermined that blanket right there. Q. Oh. Okay. I see. So that obviously before they dug the hole to take the borrow from the borrow pit there was clay there. A. That's correct. Q. And the clay blocked the water from coming -A. Is that correct.

EXAMINATION BY MR. BRUNO: Q. All right. Fine. All right. Now, this whole course -- the intent of this course was to teach you about the issues related to underseepage, as you've told us. Now, so what I want to see if I can figure out is, what did this course teach you, if anything, about how to deal with the borrow pit to prevent seepage problems, if it did at all? I don't know, maybe it didn't. But did you guys -- were you taught anything about that? A. We were taught quite a bit about it. In fact, while I was working with the Corps, um -- beginning at the New Orleans international airport, coming around the lakefront all the way to New Orleans, all of those levees I was involved in. Those levees were adjacent to houses. There were berms, sort of, to stabilize the levees that would go from the levee close to adjacent to some backyards. The berms were constructed to add additional weight to keep any excess pressures from water or the levee material itself from counterbalancing and trying to, I guess have rotational under-failures towards the homes.

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As a quality assurance rep we monitored those things during the construction and even beyond. I mean, the Corps has an annual inspection that they take the engineers on to ride the levees. The reason they ride those levees is to look for these type of things, see do they see any seepage or problems concerning underseepage. Q. Yeah. A. So, yeah, we learn quite a bit. I mean, always -- in fact, I became so accustomed do doing it I would find myself when I would just travel like from here to Baton Rouge if it was a surface road I was on and it was a bright, sunny day and it hadn't rained in two weeks and I saw water ponding next to a levee, I would point it out to my wife, we've got some underseepage there. She thought I was crazy at the time. She say, what are you talking about? And I said, we got some underseepage, and it's probably minimum, but it's there. But we watched this whenever the river stage would come up high, and then there was a potential for more water to be dumped in the certain area. You know, so we learned quite a bit
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your inspection took some particular interest in certain houses where you thought there may be a problem. And what I was trying to learn is, was there some distance from the flood control structure where you had interest in ascertaining whether or not there was the potential for -MR. TREEBY: Object to the preamble of counsel trying to justify himself. Go ahead. I thought you were finished. Excuse me. MR. BRUNO: Yeah. Just let me finish. Okay? MR. TREEBY: I'm sorry. Apologize. MR. BRUNO: Now I forgot where I was. A. If the question is, is there a particular requirement -MR. TREEBY: Objection. Let's have a question and an answer. EXAMINATION BY MR. BRUNO: Q. Go ahead. Ignore him -- the comments.
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relative to this. Q. All right. A. You know, that the Corps' -- at that time, to us, was our responsibility when watching levees. I mean -Q. Okay. How close were those houses, the ones to which you just made reference that you had some concern about, to the flood control structure? MR. LEVINE: Objection. Vague as to location. Q. I was going to answer that way. It depends on where you were. You know, sometime it could be fifteen feet away and then it could be 65 and 70 feet away. It depends on -there's a lot of engineering calculations that go into that -EXAMINATION BY MR. BRUNO: Q. Right. A. -- to tell you how close or how far you can be away from the structure, and what you need to do in areas to supported that structure. So it varied. Q. Well, I'm -- in fairness to me, I thought that you said that you guys on doing

MR. TREEBY: Object to the responsiveness of the answer, then. MR. BRUNO: Fine. A. There was no criteria for just looking at how close or far a structure was away from the levee to question the effects. You know, everything depended on design, how wide the levee base was versus how narrow it was, whether there was sheet piling and a concrete wall on top and no levee at all. All of those things vary. So, no, there's no -EXAMINATION BY MR. BRUNO: Q. Okay. All right. A. -- particular measurement. Q. What is the relevance of a sheet pile wall, if any, to this seepage issue? A. It's very relevant because it would cut off flows of water at a particular depth. Q. Okay. A. In this case, if a sheet pile wall was placed inside the levee, then this water here would have to travel further down -Q. I see.

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A. -- to go to the other side. Q. So is it important to know how deep the sheet pile is if you're going to be doing one of these engineering analyses? A. If you're going to do any type of construction work its important to know how deep the sheet pile wall needs to be. Q. All right. Now, what are the precautions that should be taken if one is going to locate a borrow pit near a flood control structure, if there are any precautions that should be taken? What do you do? A. There are several precautions that must be taken, now -- or should be taken. Like I said, must be because some -- I have seen contractors try to dig deep holes without any protection. But for the safety of your personnel and to keep the hole from falling in on you, you need to have some type of calculation relative to how you're going to retain the material that's outside of the area you're digging, to keep it from falling in on you, for one. Q. Okay. A. Um -- you need to be concerned with
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that tries to come back in your excavated area. A dewatering system, if you're going deep. Q. Uh-huh. What's deep mean? A. Deep is 25 -- at least 20 feet or more in depth. Q. Okay. A. Adjacent to any stream bed or water table that's pretty high. And normally here in New Orleans the water table is very high, so if you get anywhere below -- in sometimes in cases less than fifteen feet you got to be careful. If you're digging a grave, you got to be careful. If you go too deep soil will start caving in. So, yeah, those are all precautions. Q. All right. Now, if -- am I -- again, looking at this Plate 3A, what they're showing here in the plate is a cut through a clay layer. Now, so if you cut through a clay layer into the sand, is there anything, or any precautions that needs to be taken to deal with that fact? A. Yes. The same precautions that we're talking about. When you dig this hole -they're not showing this in this illustration,
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the adjacent area and flows. You know, if you're digging in an aquifer, if you're doing digging next to a river channel, which way the water is going, what is it going to do at a particular time, to determine how deep your sheet pile needs to be. Q. Uh-huh. A. Um -- even when installing the sheet piling, you need to consider the structure. And if it's on sand, and let's say you're going the vibrate the sheet piling in, what is the frequency of vibration on the sheets, is it going to disturb the sand layers beneath it to cause any additional impact? Because while you're vibrating, that sand is moving, the earth is moving, and if something is heavy on one side it may cause change in condition. Q. Okay. A. You need to be concerned with uplift pressures of water underneath the sheets, because the water is going to tend to go deeper down, and the deeper it goes that's more head pressure, and it will try to come back in your excavated area. So you need to think about what you're going to do to retain the water

but what are the pressures in the strata? Any contractor needs get -- A, if he doesn't know how to do it, get some engineer to get him some calculations on the underground pressures, such that when you create this hole, and the water level is at this stage -Q. Uh-huh. A. -- what's going to stop that water from coming up on you while you're digging that hole? Q. Okay. All right. Well, suppose you're done. All right? You dug your hole and you've removed from the hole whatever you've been asked to remove from the hole, and you're finished your work. Is there any particular precaution that needs to be -- first of all, is there any need to file the hole? Let's start with that. Can you at least leave it open? A. Not next to a levee, no. Q. Why not? A. Because with that void, material that's close around in the area, germane to the area, is going to try to fill that void. And it may be the material that's supporting your

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levee that's trying to fill that void. And when it's going over to file that void, then you undermine the structure. Q. Okay. A. So then you got a major concern. Q. All right. So is it then necessary to fill the hole? A. In many cases, most cases, it is. You fill it with some material. Whether it's the same material you took out or whether it's -in this case it would be two materials because you'd fill it with -- if you go into the sand layer you'll fill that with sand, but if you penetrate that impermeable layer which is clay, you need to fill it with some clay or clay-based material -Q. I see. A. -- to keep the water from trying to penetrate in the area or go up or down in that area. You have to put something there. Q. All right. And is there any need for compaction? A. If it's dry and you have sheet piling and you can come back with some clay and you can compact it, it's perfectly good to do that.
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underseepage issue but it wouldn't -- there would be no problem caused until the level of the channel or canal or reservoir, whatever it is, got higher due to rain or hurricane or flooding of some sort? MR. LEVINE: Objection. Vague, compound, ambiguous. A. You can know before it starts to rain and flood that you got problems. EXAMINATION BY MR. BRUNO: Q. You could know. I'm just saying -A. You will know if there's -- depending on the water table. Like I say, when you're digging -- in New Orleans, it's known not to dig below six feet. And most people are buried above ground because the water table is so high. So soon as begin to dig, you'll begin to see water and you'll have problems. And there's is no storm around. Same thing with construction. If you're below the water table you're going to begin to have problems. You're going to see water penetrating coming in. And that's how outside of raining, flooding or whatever. If
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But then there are cases when it may not be dry but you'd have to inject what we call bentonite with a trimey tool in the hole. Q. Okay. Now, continuing, it says here at the last sentence on Page VI.1.5, the amount of underseepage and uplift pressure that may develop landward of the levee or dam is known to be related to the river and reservoir stages, location of seepage entrance, extent of thickness and imperviousness of the landside top stratum, underground storage and geological features. MR. LEVINE: Where are you reading from, Joe? MR. BRUNO: I thought I said VI.1.5, carrying over to VI.1.6. You with me? MR. LEVINE: I think so. EXAMINATION BY MR. BRUNO: Q. All right. Now, is it possible that you could have an underseepage issue and not know that you had an -- if you were not knowledgeable about all these underseepage issues, okay? Is it possible you could have an

you're in the batture, we call it, batture is when the lever comes up high and it flows towards the levee, you know, that batture is the area that stays dry on low river stage. Q. Right. A. If you're in the batture and you start to dig in the river you're probably going to start seeing, at some point, some water. So you'll see the problem. It doesn't have to be associated with a flood. Q. Right. But my question was just the reverse. And that is, is the nature of what you've been talking about all morning long, this seepage business, is it something that wouldn't create damage until the water in the canal got much higher due to either excessive rainfall or a flooding scenario? MR. LEVINE: Same objection. A. It will create damage before then. I mean, the Corps -- if I walk out of this room today and walk up close to a levee and start digging a hole right next to that levee and it's not even flooding out here, and if it wasn't flood season, believe me, a lot of Corps

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employees would be out there to stop me. Because it's going to have some impacts on that levee without a flood stage. EXAMINATION BY MR. BRUNO: Q. I know. But what I'm asking is, is it possible that you wouldn't see a sand boil until you got to a flood stage? A. No, you may see -- you may -Q. I know you may. I'm saying is it possible that you wouldn't? A. It's possible you wouldn't if the river stage is below your depth of digging. Q. Right. Okay. That's what I'm driving at. A. Yeah. Q. Okay. All right. Then the next series of subparagraphs are, starting on VI.1.6 and continuing, cutoffs, riverside or upstream blankets, relief wells, berms, drainage blankets, drainage trenches, sublevees, seepage control related to structures such as retaining walls, slabs, roadways, et cetera. What do all those things relate to? MR. TREEBY: Objection. Vague.
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A. Yes. EXAMINATION BY MR. BRUNO: Q. All right. Were you told by your instructor when you took the course what you're supposed to do with this information that you had been taught during this 40 hours of soil quality verification? A. Yes. Q. What were you told to do with this information? A. Um -- I can remember vividly one of the instructors said, now you all are responsible for observing situations and problems and finding -- contacting someone that can find preventive measures to keep the public safe. If we see something, convey it to our project engineers and/or any engineer in the Corps of Engineers so that any potential problems could be acted upon to reduce risk. Q. Okay. Now, I've realized I've marked this instructor document as 5, but it's got highlighting on it. I'm going to substitute a clean copy. But for now I'll give that to you. All right. Let's see. Did you want to add something?
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EXAMINATION BY MR. BRUNO: Q. If you know, go ahead. Do you think my question is vague? A. It relates to controlling the flow of water in an excavated area. Q. All right. A. All of those items relate to that. Q. All right. A. Some of the things I've taught on already. Q. Right. So all those are just methods that the Corps is suggesting can be employed to deal with seepage, right? A. Yes. Q. Okay. All right. Now, let's see. Then we have ground water control during construction, and that is what it is, right? A. It is what it is. Q. All right. And then do I gather that ditches and sumps, well points, deep wells, electroosmosis cutoffs, those are just ways that you can deal with ground water control during construction? MR. TREEBY: Objection. Leading.

A. I wanted to mention, I have in my hands the verification course, the cover letter, and I wanted to know just, all that is one exhibit? Q. No, no, no. I just made the exhibit the Instructor Listing, Earth Work Quality Verification Training Course sponsored by -- by the way, I neglected to ask you, this -MR. TREEBY: Joe, he has one. Don't you want to just use that one? He has one that's not marked up. MR. BRUNO: I might do that, Bill, but frankly I don't like the way it's been stapled. The pages are not even. EXAMINATION BY MR. BRUNO: Q. Take a look at the first three pages where it says instructor listing. A. Yes, sir. Q. And then it says, you know, the listing of the folks. Would that have been in the front of this binder? A. Yes. Q. Okay. And then following this would

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have been the various parts of the binder that you've kindly offered to send to the copy place? A. Yes. Q. Okay. I understand now. All right. And you know, I guess what we'll do is we'll mark that as Exhibit 6 and just attach it to the deposition when we get it. MR. BRUNO: The whole binder. We don't have to attach it, but I'm going to mark it as 6 and it will be available for everybody to have copies of it, just so we have a reference point. (Exhibit 6 was marked for identification and is attached hereto.) MR. TREEBY: With all due respect, Joe, I think that whatever is marked as an exhibit this witness ought to identify under oath as the entire binder, not in the procedure you're utilizing. I have know objection to getting it -EXAMINATION BY MR. BRUNO: Q. Well, in the procedure I'm utilizing,
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MR. TREEBY: Your definition of what I would cross-examine him on is unacceptable to me. MR. BRUNO: And you know what? Your cross-examination would be generally unacceptable to me, I can assure you. So anyway, let's not play games. MR. TREEBY: All of us aren't prescient like you. MR. BRUNO: You're pressing it, Bill. MR. TREEBY: Prescient I said. MR. BRUNO: Oh, prescient. I'm sorry. I didn't hear you. I'm deaf, too. EXAMINATION BY MR. BRUNO: Q. All right, let's where we are. Now, we're back to your CV. Let's kind of walk through. MR. LEVINE: Which one, 3 or 4?
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are you willing to swear to us under oath that you are going to submit to the photocopy place a complete copy of what you have that you've referred to as the course materials? A. So help me God. MR. TREEBY: My objection is noted. MR. BRUNO: It sure is, Bill. MR. TREEBY: Because it's not here for us to cross-examine him on, obviously. It's just inappropriate. MR. BRUNO: How would you cross-examine him on completeness even if it was here, Bill? I mean, that's ridiculous. That's utterly ridiculous. MR. TREEBY: Your definition -MR. BRUNO: Guy says, here it is, it's complete. And you're going to say, is it complete? He's going to say, yes, it's complete. Whatever.

MR. BRUNO: Well, they both refer to the same thing, but I'm looking at Number 3. EXAMINATION BY MR. BRUNO: Q. You left the Corps in '93. All right. Why did you leave? A. To, um -- I had began my own construction firm at the time, and I couldn't work for the Corps at the same time while performing construction for other government agencies. Q. Okay. All right. And once you left the Corps, were you free to contract with the Corps? A. After a certain period, yes. Q. Do you remember the period of time? A. I'm guessing. I'm thinking it was about two years or something to that effect. Q. All right. That's fine. Now, you have on here a description of work with the Louisiana Army National Guard. A. Yes, sir. Q. It says from 1994 to 2004, you were an engineering officer. A. Yes, sir.

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Q. All right. What does an engineering officer do? A. Um -- the engineering officer in the National Guard acts as a project manager, plans construction, studies processes and procedures relative to implementing particular projects that may be handed down by higher headquarters, planning men, material, equipment to perform the construction, looking at construction processes. Q. All right. Now, did you do work through McElwee Brothers during that same period of time? A. Yes. Q. Okay. All right. Have you been employed by anybody else that we haven't talked about already? We talked about the Air Force, we talked about the United States Army Corps of Engineers, we talked about the Louisiana Army National Guard and we talked about McElwee Brothers. A. I was briefly employed, I can't think of the engineering firm, but there was a firm that was doing some work for Entergy when they were doing mapping -- digital mapping of all
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A. To explain the management side of experience. Q. Okay. All right. Looks to me like you're very generally describing what your skills are. Is that right? A. That's correct. Q. Okay. Now -(Brief recess.) EXAMINATION BY MR. BRUNO: Q. Okay. Mr. McElwee, what I'd like to talk about now is the work that McElwee Brothers did for the United States Army Corps of Engineers. A. Yes, sir. Q. In your résumé you reference a project that I'm going to generally refer to as the Dwyer Road drainage pumping station improvements project. A. Yes, sir. Q. And I'm going to just say Dwyer Road for short if that's okay with you and everybody else in the room. A. That's fine. Q. My first question, sir, is did McElwee Brothers do any other work for the Corps in its
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the utilities in Louisiana, Mississippi, Arkansas. Q. Okay. A. I did that for a short period. I can't remember the exact dates. But, um -- the firm also does work for one of the Mobil Oil companies, I can't think of the name of it right now. Q. Now, Exhibit Number 4, what does this describe? A. It describes the management side of the experience. Actually, in Exhibit 3 I did a lot of performance work, field engineer on the ground. The Exhibit 4 is the management side. Q. Okay. A. There were times when there were projects I didn't act as a field engineer on, had superintendents working on, and while working for McElwee Brothers I was strictly a construction manager, you know, doing the submittals, doing the, um -- scheduling, coordinating with suppliers for equipment, those type of things. That's from the office. Q. Okay. All right. What was the purpose of Exhibit 4?

history; in other words, as you sit here today looking back, have you done anything else for the Corps other than the Dwyer Road project? A. Yes, sir. Q. Okay. Let's start with the earliest one, if you don't mind and give me the date, tell me what you did. A. I can't remember the date. Q. That's fair. Was it before Dwyer Road or after? A. It was before Dwyer Road. Q. Okay. A. Out at the New Orleans District 's parking lot, the parking lot extends over the river batture, and there was some failure in some of the piling underneath the parking lot, and we did some repairs to the piling along the river at that time. Q. That's on Leake Avenue? A. That's on Leake Avenue. Q. Okay. Glad you fixed it, we park there all the time the last couple of weeks. What other work did you do for the Corps, if any? A. There was some building work done at

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Leake Avenue in one of the maintenance buildings, the new warehouse. Q. Okay. And that's right up there on the left? A. Right up there on the left -- as you're facing the Corps from Leake Avenue, it's too the left. Q. Okay. All right. Anything else? A. That was it. Q. Okay. Good. Now we're going to -let's just talk about the Dwyer Road project. Okay? A. Yes, sir. Q. All right. Now, first, how did you come to know about an opportunity to bid on the Dwyer Road project? A. As a general contractor we get notifications from various outfits that do publications on government work coming out, and that particular project was in an advertisement that I used to subscribe to, a paper. Q. Uh-huh. A. And the various papers are the Dodge Reports, the newspaper, Commerce Business Daily Journal. McElwee Brothers saw a job in there
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as far as, you know, the levee structures, high powered lines, gas lines, any potential underground stuff. I started doing reconnaissance to see if I saw some visuals in the field. In fact, I take pre-bid photos. I normally keep a packet of photos to show the job as it was before we ever bid the job. Q. Uh-huh. A. And the reason for that is because a lot of times when you get into some work the owners come back and say, well, you should have known about this. And then I say, well, if it's in the photo I should have known, but if it's not in the photo how would anybody have known? So we take, you know, take pre-bid photos. We also look at the documents, comb the documents to see what we have. And the first thing that McElwee Brothers looks for when it comes to subsurface work, meaning driving piles or excavating or anything of that sort, is to see if we got some soils borings. Q. Soil? A. Soil borings. Q. Borings. I'm sorry.
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and we decided to go after it. Q. Okay. All right. Now, explain to me, what is the process when one like yourself is interested in making a bid; what is the first thing that you do? A. For the bid process itself? Q. Yes, sir. A. The first thing you do is obtain the plans and specifications on the job from the owner, and you check with the owner to assure that if there are any amendments or addendums prior to the bid date that you need to be notified of. You get all those documents in your possession. As a prudent contractor -and the reason I say prudent is because you do have some contractors that just take those bid documents and whip up some prices real quick to bid on the job and move forward with it. But as McElwee Brothers, what I normally do is either myself or some person that work for the firm go out and do a reconnaissance on the job as it is, prior to any construction. And in this particular job I performed some reconnaissance. I found out where the job was located, what structures were around on the job

A. Yes. And because of my training with the Corps of Engineers, that's the things I immediately look for in any job, you know, if I'm dealing with subsurface work. (Brief interruption.) EXAMINATION BY MR. BRUNO: Q. Nature and characteristics of the what? A. Soil material. Q. There you go. Okay. All right. Now, let's just take a breather for a second. Why are you interested in structures, high power lines, gas lines, the things that you can see with your eyes? Okay? What is the relevance of those things to this bid? A. The relevance is to compare what is visually out there versus the plans. Because there are times when the owner may not show a utility in a plan. That's going to impact your work. It's going to impact your labor, your equipment and your materials because you've got to deal it with. It's going to impact your cost. You want to assure that the plans and specifications are fair for everybody, such that if I'm seeing it out here and another

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contractor who's not taken a visual of it, and don't see it in his plans, his price may be different, but yet he hadn't considered things that should have been out there visually. You went to develop a relationship with the owner that you're being fair in your assessment and that maybe they should consider some things they didn't consider, that you're looking at these plans thoroughly. Q. Uh-huh. A. And sometimes some amendments come out afterwards to answer the questions for all the bidders that may have not done what you have done as a prudent contractor, like McElwee Brothers did. Q. Okay. A. To also give McElwee Brothers an insight to its intended construction procedures, labor, personnel, time frames, how long it will take to do the calculations relative to items of work on that particular job. Q. Okay. All right. Now, what was the relevance of the soil borings to this proposed work?
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everything I've talked about this morning. I utilized my training to plan for that job. Q. Okay. Now, did the plans and specifications that were provided to you by the Corps and on which you were supposed to make this bid, did those plans and specifications identify the potential for harm to the flood control structure that was at the heart of the job? A. Partially. MR. LEVINE: Objection. Vague. MR. BRUNO: All right. I don't know what the vagueness is about, but maybe-EXAMINATION BY MR. BRUNO: Q. Did I not -- tell me, first of all, whether or not a flood control structure was going to be involved in this proposed work. A. Yes. Q. All right. And where was -- was the proposed work going to be done on the batture? A. No. Well -Q. Part of it. A. Part of it.
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A. On this particular job, the Dwyer Road job, the relevance was the job was located in the batture of the Industrial Canal. It was so close to the Industrial Canal that every level over a period of time that may be high or low on the canal was going to impact the work. And it was going to impact, potentially, structures close to the work. So McElwee Brothers wanted to review, exploit, see and consider -Q. Okay. A. -- all potential impacts -Q. Okay. A. -- on that work. Q. Now, this whole morning you've told us about what you learned at the course sponsored by the geotechnical laboratory, Exhibit 5. What I'm trying to figure out is, once you found out where this job was going to be, that is, that it was close to the Industrial Canal or the Inner Harbor Navigation Canal and that it regarded a floodwall, did you draw upon your training that you got from the Corps relative to the seepage issue that we've been talking about all morning long? A. Every aspect of that job related to

Q. Okay. All right. Now, let me ask you this: You said, I believe in answer to my question, partially. Would you explain your answer. Why did you say partially? A. In that particular set of plans and specs, the Corps had a soils boring ledger in the plans, and the Corps also had in the specs a notification to the contractors if you wanted to see any of the additional tests ran on the materials relative to the job and soils, contact the Corps of Engineers. McElwee Brothers contacted the Corps of Engineers because when I worked as a quality assurance represent the Corps of Engineers had a laboratory at the district, and I knew what soils data and information they kept, and I want to see that as a contractor for this particular job. And so I inquired prior to bid to see that information to complete my bid. Q. All right. First, why; why did you want to see that information? A. McElwee Brothers wanted to see that information because any excavation that was to be done on that particular job adjacent to the floodwall was important. I needed to see the

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soil makeup, the composition, where was the sand layers? Were there any, um -- Artesian springs below? Um -- then also, when we performed the excavation in the batture, how stable were the soils, you know? In that particular job, the Corps required that the contractor get a licensed professional civil engineer to design the temporary excavation, sheet piling, to submit his calculations and everything, also, to design a dewatering system to keep the water out of the excavated area while work was being performed. And in order to design the dewatering system, we needed to see the composition of the materials, where, at what level and what depths, how deep these straws I call them, or pieces of pipe, needed to go to suck the water to keep it from creating sand boils in the excavated hole. Q. Okay. Did the Corps give you the information that you requested? A. No. Not on that job. Initially. Q. Now, wait. When you said in that job, at this point let's be clear for the record. We are at the pre bid stage. A. Yes.
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clearly was leading. MR. BRUNO: Okay. Fine. Whatever. I know you don't like these answers and I'm not apologizing to you. MR. TREEBY: I like the answers I just don't like your testimony. MR. BRUNO: I don't know -- I keep saying -EXAMINATION BY MR. BRUNO: Q. Mr. McElwee, am I testifying here or are you testifying here? A. I thought I was testifying, answer the questions. MR. TREEBY: Objection. MR. BRUNO: I thought you were, too. Maybe I don't understand what's going on here but I just got to deal with it. MR. TREEBY: Now -- in preparing. EXAMINATION BY MR. BRUNO: Q. Now, in preparing your bid, what
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Q. And you're trying to draft a bid. A. Yes. Q. All right. So your testimony is that you asked for soil boring information as a part of your effort to write a bid, and they didn't give it to you. MR. TREEBY: Objection. Leading. EXAMINATION BY MR. BRUNO: Q. Is that what you said? A. That's what I said. MR. TREEBY: Objection. Leading. MR. BRUNO: All right. Whatever. MR. TREEBY: The record says what he said, Mr. Bruno. MR. BRUNO: Mr. Treeby, we have a difference of opinion as to whether or not it's appropriate for a questioner to clarify the answer for the questioner. MR. TREEBY: If that was your purpose, then it

consideration, if any, did you give to precautions that you felt you needed to take in order to address the potential for damage to the flood wall? A. Would you please repeat that question? Q. Okay. All right. And let me just walk through it. You went to the site, you've told us, you saw that the site included a floodwall. Right? A. Yes. Q. All right. And you saw, from the plans, that the plans called for the removal of part of this floodwall, right? MR. TREEBY: Objection. Leading. A. Yes. That plans illustrated that, and I saw in the area during the pre-bid photos of what needed to be demolished. EXAMINATION BY MR. BRUNO: Q. Sure. I'm just trying to get some background so I can ask you the questions. A. Uh-huh. Q. And did you, at the time that you were preparing the bid, have any understanding as to whether or not the proposed work may have an

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impact on the flood control structure that was there? A. Yes. Q. And I think you've already said this, but did that work have the potential of creating underseepage problems? A. Yes. Q. And did you, in preparing your bid, consider precautions that may have been necessary, based upon that, these previous statements, to deal with the potential underseepage problems? A. Yes. Q. All right. Now, what exactly did you build into your bid to address those issues? A. There was engineering consultation cost that was incorporated to deal with those issues, to have a design engineer available, within 24 hours -- eight hours, really, that's the concept we used -- to be available to answer any questions and come out to deal with any issues on that particular job. Q. Okay. Okay. I neglected to ask you, but what was the frame of time when you learned about the potential for contracting with the
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Q. All right. What I wanted to know is, did it indicate the type of engineer that you had contemplated, that is, civil versus geotechnical versus soils versus structure, versus -- you know, was it -- or was it just general? A. The Corps had a specification for the specific type of engineer in the bid packet, which was a civil engineer familiar with this area and construction within this area; however, McElwee Brothers, because of other sections of those plans, needed an engineer that could be versatile in traffic management and versatile on structures. We chose an engineer that was with a firm and had the capabilities to cover all those areas. Q. Okay. All right. Now, did the bid package include engineering services for soils evaluations, or was that something that you proposed as part of your proposal? A. Initially, McElwee Brothers for its proposal saw this evaluation, did that on its own. Q. All right. The soils stuff came from McElwee, not from the government, right?
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government and, you know, you actually evaluated the bid and then submitted the bid, what was the approximate time frame? A. On this particular job it actually was two years. Because the Corps brought it out initially as an I think an open competitive bid project, then they took it off the market and made it 8A. That's a program with the U.S. Small Business Administration that allows minority contractors to get into the open market of bidding. What the Corps would do was select certain projects to be bidded by contractors certified by the Small Business Administration to bid 8A projects. So that made the process longer. We looked at it and it was about two years later before we actually started bidding on it. Q. Okay. All right. Let me just clarify something. In answer to the question about what precautions were taken relative to underseepage, I think you testified that you had included in the bid package the cost of engineering services. Is that what you said? A. Yes.

A. That's correct. Q. All right. At the end of the day, you guys got the contract, obviously? A. Yes. Q. All right. About when was the contract signed? A. I believe the contract was signed around 2001, if I'm not mistaken. Q. All right. Okay. A. The early part. First quarter, I believe. Q. All right. Now, Mr. McElwee, we've been provided some documents by the Orleans Levee District, and before the deposition I gave you a chance to look at these documents. Right? I told you I was going to ask you some questions about them, right? A. Yes. Q. Okay. MR. BRUNO: And I don't have copies of this, but I'm happy to make copies of this thing. EXAMINATION BY MR. BRUNO: Q. We just got these what, two days ago?

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MR. TREEBY: If you're going to ask him questions about documents, could we have a copy before you ask the questions so we know what we're dealing with? MR. BRUNO: We're happy to do that for you, Bill -MR. TREEBY: Thank you. MR. BRUNO: -- but it's not my job. Okay? I'm happy to do it. I want to make that crystal clear for the record, since I was told by your people the same exact thing, it wasn't your job when I was in Boise, Idaho to get documents for my deposition. MR. TREEBY: You were taking the deposition. MR. BRUNO: Exactly. And you're taking this deposition, as well, aren't you? MR. TREEBY:
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ground, talking about the turf on which this project was to be done. A. Please clarify for me what you men. Q. In other words, what piece of ground -- what piece -- if I -- you know, what was, for example, the size of the work site? Let's start with that. A. Okay. The size of the work site was approximately 600 feet by 60 feet. Q. Okay. Now, the 60 feet, was that along the length of the flood control structure? A. No. That was perpendicular to the length. Q. So the 60 feet went into the -A. The 60 feet was parallel to the flood -Q. So it was along the flood wall. A. Yes. The 60 feet was, I'm sorry. Q. All right. Now, how far landward did the construction site go, that is, from the floodwall toward the land? Did it go very far into the land side? MR. TREEBY: Objection. Vague. I don't
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I don't have the documents you're talking about, so it would be helpful if you would -MR. BRUNO: And I will be helpful. I just want to make the point, that's all. MR. TREEBY: I will tell you every time I take a deposition, every time we take a deposition in this case, we have and we will provide copies of the documents we're using to all counsel. MR. BRUNO: I don't know if I'm using any of these documents. MR. LAMBERT: There's a lot of lawyers here, Bill. MR. TREEBY: We'll do whatever it takes. We've got copies. MR. BRUNO: All right. EXAMINATION BY MR. BRUNO: Q. First, can you describe for me the

understand the question. MR. BRUNO: You don't know the difference between the land side and the water side of a flood control project? MR. TREEBY: I'm sorry, joe. I'm not as smart as you. I just don't understand your yes. You don't have to clarify it if you don't want to. MR. BRUNO: I'm trying to. I'm just sort of mystified how in all the depositions we've taken that there's some confusion about the land side and water side of a floodwall. But that's okay, Bill, I can deal with it. A. Speaking in terminology that I have learned with the Corps of Engineers, I'm going to say flood side and protected site. EXAMINATION BY MR. BRUNO: Q. That's fair enough. We'll use that. Flood side -- and for Mr. Treeby, what is the flood side? A. The flood side is the batture towards

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the canal or towards the river. That's the side where the water rises and you're trying to retain it at. Q. Okay. Let me guess. What is the flood side now? I'm sorry. The protected side. A. The protected side is the other side of where the area you're protecting, the -- you say land side. Q. Okay. A. It's where the homes are or where the city is, or where the whatever area you don't want water to penetrate. Q. And what's the dividing line between the flood side and the protected side? A. Flood control structure, whether it's the levee or whether it's an I-wall or T-wall or a sheet pile. Q. In this particular instance, Mr. McElwee, what was the nature of the flood control structure, was it a levee, a T-wall or an I-wall? A. It was an I-wall and T-wall. Q. I-wall and T-wall. A. Yes.
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picture now, and I've got 100 foot width on my flood control structure and I'm -- I think I'm understanding that that work site goes into the water 's edge on the flood side. Right? A. That's correct. Q. Okay. Now what I was trying to learn is, how far on the protected side, or landward, if it went at all, did the work site extend? A. About 80 feet. Q. 80 feet. A. Yes. Q. Okay. I got you. All right. Now, did you guys erect any sort of barrier or fencing to demarcate this construction sites? A. Yes. Q. What did you use to demarcate the site? A. Um -- we had to install chain-link fence. Q. Okay. A. I think it was between 6 or 8 feet, throughout the whole construction site to -Q. Okay. All right. Now, it's easy for me to understand that you would have the chain-link fence on the protected side.
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Q. Did the T-wall have any earth berm component? A. Yes. Q. Okay. Did the I-wall have an earth berm component? A. Yes. Q. Okay. Can you give me some sense given I think you've already testified it's about 60 feet of length of this flood control structure, how much of the 60 feet was T-wall and how much of the 60 feet was I-wall? A. For clarification, I would like to mention that the T-wall itself was about 60 feet. Q. Oh. Sorry. A. We had to take out another section of I-wall for traffic to come through. And the section we took out there I think was 40 feet -Q. All right, sir. A. -- of I-wall. Q. Tell me if I'm wrong, but did that make the work site then 100 feet in width? A. Yes. Q. Okay. All right. Now, I've got a

You've got 100-foot length, and you've got 80 feet until you get to the flood control structure, right? A. Correct. Q. All right. Now, did you have any demarcation on the flood side of the site? A. Yes. Q. All right. What did you have on the flood side of the site? A. Same fencing. Q. All right. So we had our chain-link fence that went all the way from the flood control structure to the water 's edge, right? A. Yes. Q. Okay. And that would be north and south, right? A. Yes. Q. Okay. And by the way, am I wrong, I don't want to be accused of leading, but the Industrial Canal generally goes from north to south, right? A. That's correct. Q. All right. And the work that you guys were contemplating to do was on the east bank of the Industrial Canal, right?

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A. That's correct. Q. All right. And it was -- can you give me some landmarks, bridges or the like, that would assist us in learning where the work site was? A. The work site was located north of the Danzinger bridge, which is Chef Menteur Highway, Highway 90, I believe it is, it was north approximately maybe a quarter of a mile. Q. From? A. The Danzinger bridge. Q. The Danzinger bridge. A. Along the canal. Q. Along the canal. Now, Mr. McElwee, since hurricane Katrina, have you become aware of the fact that there was at least two failures of the flood control structure in the area of the Lower Ninth Ward? A. Yes, I have. Q. All right. And the reason I'm asking the questions, sir, is I'd like to know how far from the north break, okay, your construction site was. But before I ask that, do you know generally where the north break that occurred during Katrina was located?
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that he was working on. MR. TREEBY: That's -MR. BRUNO: We've spent a lot of time on that already, but if that's unclear to you let me just clarify it. MR. TREEBY: Thank you. EXAMINATION BY MR. BRUNO: Q. Sir, when I asked you the question about the distance between these two locations, first location is the north break which you've identified for us, and the second location is your, the McElwee Brothers', construction site about which we've been talking. And of course we've not talked about any other construction site. But anyway, what is the distance, if you can, between those two sites? A. The distance from the north break, and that I described earlier, and McElwee Brothers' project, the Dwyer Road project, is approximately a half a mile. I'm thinking. Q. I know you didn't measure it, but there's some distance between the two?
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A. My knowledge of the north break. Q. Just where it was, not how -- just where. A. Location. Q. Location. Nothing else. A. By the Florida bridge, I believe it is, south of the Florida bridge -- southeast -Q. That's right. A. -- from the Florida bridge. Q. Okay. Now, having established that, so we're south of Florida and you're north of Danzinger. A. Yes. Q. All right. Are you able, sir, as you sit here today, to give us a general understanding of the distance between the north break and the construction site? MR. TREEBY: Objection. Vague. You didn't say what construction site, and there's -- you started talking about areas near -MR. BRUNO: Okay. Bill, I thought we were talking about the construction site

A. Yes. Q. All right. Do you know whether or not there's a pump station in or around the location of the north break that's operated by the Sewerage & Water Board? A. Yes. Q. Okay. You guys weren't working on that pump station, were you? A. That pump station was an unmanned pump station. We weren't working on it. Pittman was working on that pump station. Q. All right. Yours was north of that. A. No, that pump station was actually what we were tying into. Pittman was building a new pump station, and it was an unmanned station with a 50-foot tube that went alongside of our job. They was inside of our construction area. That's the only pump station I'm aware of. Q. Okay. Let me grab us a map, if you don't mid, and see if I can help us out here. (Off the record.) EXAMINATION BY MR. BRUNO: Q. All right. First of all, for the record, we have all seen this map a hundred

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times. This is the Times-Picayune flood map. Let me just ask you generally if it's, sir, in your opinion, this generally accurately depicts the Industrial Canal relative to the bridges that cross the Industrial Canal? A. Yes, it does. Q. Can you show me the location of the north break. A. It's generally in this location. Q. All right. And where -- what is the bridge there? A. Danzinger. Q. No, no, no. Maybe I'm confusing you. I thought you told me the location of the break in the levee in the Lower Ninth Ward was -A. Around the Florida Avenue bridge. Q. Florida. So where's Florida? A. From my looking at this map, this should be Florida here. Q. It's under I-10? A. It's south of I-10. Q. All right. Is it close to I-10? A. It's close to I-10, yes. Q. All right. Now, where is the Danzinger bridge?
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Mark it so we have a record of what this witness said. That's what I'm going to ask. MR. BRUNO: That's fine. That's fine. And but I think is record pretty clear, we have a videotape, Bill, and he's got a picture of where he pointed. If that isn't clear, I don't know what is, but I'm happy to help you any way I can. EXAMINATION BY MR. BRUNO: Q. Now, Mr. McElwee -MR. TREEBY: So this is Exhibit 6? Is that what it is? MR. BRUNO: No, I'm not marking it. If you want to mark it -- it's on the videotape. I would mark a smaller version so that it could be attached, which I'm happy to do, an 8 x 10. (Exhibit 6 was marked for identification and is attached hereto.) EXAMINATION BY MR. BRUNO: Q. But anyway, you see these two stars
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A. Right here. Chef Menteur Highway. Q. Okay. A. Highway 90. They don't have it on here, but Chef Menteur Highway. Q. So it's Chef Menteur Highway is the Danzinger bridge. A. Yes. Q. Okay. All right. Now you see here where this star is on the map? A. Yes. Q. With the arrow? MR. TREEBY: I object. MR. BRUNO: You can object all day long and all night. Make your objection. MR. TREEBY: Thank you, Joe. Thank you. MR. BRUNO: Go ahead. MR. TREEBY: I object to the use of this map unless you're going to attach it and mark where this witness has indicated where he believes the north breach is.

with the arrows? A. Yes, sir. Q. All right. Do you know whether or not those depict the locations of the breaks of the Industrial Canal wall on the -MR. TREEBY: Objection. Leading. EXAMINATION BY MR. BRUNO: Q. On the Lower Nine? MR. TREEBY: Objection. Leading. That's not where the witness indicated they were, and now you've suggested to him where they are. That's specifically objectionable leading questioning. MR. BRUNO: No. Oh, Bill, no it's not. I said, do you know whether or not the star and the arrow reflects where the breaks are? Yes or no? I know you want to play a game and do your little silliness, but it's just not fair and I'm not going to tolerate it. EXAMINATION BY MR. BRUNO: Q. Go ahead.

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A. This is a break. There was some overtopping in this area. Q. Okay. A. This is a break, and I'm familiar with this break that's, um -- south of Claiborne. That's what I call it, but this connects into Claiborne. Q. All right. Well, all I'm trying to get a sense is that, where the lower Ninth Ward was -A. Yes, I'm familiar with that. Q. You're familiar -- are you familiar with the Lower Ninth Ward? A. I'm familiar with the lower Ninth Ward. Q. How far from your work site was the Lower Ninth Ward? A. Okay. Now that's a greater distance. That I can't tell you what it is, but it's more than a half a mile. Q. Okay. All right. All I'm trying to do is get a distance here, I'm not trying to play games or trap you or trick you, as apparently Mr. Treeby -A. If I had to give an approximate, I
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and the -- any berms that may have been associated with it? A. I don't know directly, but I know the New Orleans Levee Board was involved. Q. Okay. A. I don't know who owned it. You know, I can't tell you the titles of who owned that structure. Q. Do you know whether the Sewerage & Water Board owned any of the land underneath this construction site? If you know or don't? A. I don't know, but I know they're responsible for maintaining the pumps after the structure was going to be built. So I know they were involved in that project because of that particular reason. Q. All right. Do you know if the New Orleans Sewerage & Water Board owned any buildings or equipment or piping or the like that went over this construction site? A. Yes. Q. All right. What was your understanding of what the Sewerage & Water Board owned? A. They owned, and like I said before, an
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would say maybe somewhere between two and five miles -Q. Okay. All right. Can we agree it's not close -- the two are not close to each other? A. Yes. We can agree. Q. All right. Thanks. All right. Thank you. And we'll -- we're going to ask Stephanie to print out a color copy of an 8 x 10 version of that. All right. Now, we're talking about the work site. Did you know who owned the land underneath the work site? We got three components, we've got -you've already told us, the protected side, the flood or the flood control structure, and then we have the flood side. A. If my memory serves me correctly, the, um -- Port Commission either owned it or had control of it during our construction process. That's where most of the entities that service New Orleans received their products. So the Port Commission, and they were involved in it. Q. Okay. Do you know who owned the flood control structure, that is, the T-wall, I-wall

unmanned pump station that operated on the end of Dwyer Road where it intersected with, um -the flood construction area, 50-inch line that traversed underneath the flood control structure on out to the canal. Q. Okay. The pump itself, was it on the construction site or off of the construction site? A. It was off the construction site. Q. Off. Okay. So that the -- based upon your testimony, I want to have a clear understanding, the only thing before the work began that the Sewerage & Water Board owned was that pipe -A. The pipe. Q. -- that went -A. Through the construction site. Q. Okay. All right. Did you know whether or not there had been any agreement between the Board of Commissioners of the Orleans Levee District and the City of New Orleans for the use and benefit of the Sewerage & Water Board that regarded this project? A. I knew there was some relationship, but what agreements were there, that I did not

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know. Q. Okay. Do you know whether or not the bid proposal or the bid package required you as the contractor to provide as a component part of the bid evidence of any insurance? A. Yes. Q. Do you know whether or not the bid package required you to show evidence of insurance which included coverage for explosion, collapse and underground property damage hazards? A. Yes. Q. Okay. Do you know if the requirement for that insurance came from an agreement between the Board of Commissioners of the Orleans Levee District and the City of New Orleans for the use and benefit of the Sewerage & Water Board of New Orleans; do you know whether or not the genesis of that insurance requirement came from any such agreement? If you know, you know. If you don't -A. I don't know that it did, but I had an inkling that it did. Q. All right. Did the bid package indicate whether or not the contractor was
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going to be used. That permit, um -- access to the site and those type of things, those permits were handled by the Corps of Engineers. Q. Did the bid package indicate to you, the contractor, whether or not the Corps of Engineers was going to evaluate, from an engineering perspective, any of the excavation that may have been made necessary by the plans and specifications? A. Repeat that. Q. All right. Did the bid package, in describing the work -A. Uh-huh. Q. -- indicate to you, the contractor, that the Corps was going to, as part of its proposal, going to undertake an evaluation of any excavation that may be required as a result of the contract? MR. LEVINE: Objection. Vague. A. To try to answer your question, yes, there was -- the contract quality control and QA procedures, provisions in the contracts, whenever a contractor bids a Corps of Engineers project and there's CQC provisions in it, most
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responsible for obtaining all permits? A. Yes. Q. Did the bid package identify for the contractor all of the permits which may have been required by any governmental entity or body? A. Repeat that question again. Q. Did the bid package give the contractor information about what permits may be needed from anybody? A. Some permits, yes. And the rest the contractor was responsible for getting on his own. Q. Okay. Can you remember what permits the bid package itself indicated the contractor was required to obtain? A. There was I think a storm water pollution control permit from DEQ, Louisiana DEQ, Development of Environmental Quality. Q. Okay. A. Um -- hot work permits from, um -- the port, Port of New Orleans Commission, whatever it was, for any, um -- torches or anything lit on that particular project or any fire expected to be burned and what particular processes were

contractors know that the government is going to be involved in evaluating procedures on that particular project. Whether it's excavation or whether it's installation or whether it's off site inspection, the Corps was going to be involved in looking at it. EXAMINATION BY MR. BRUNO: Q. Do you know whether or not the bid package indicated to you that you were required to get a permit from the Orleans Levee District in order to perform the work outlined by the plans and specifications? A. On my particular project, the Dwyer Road project, I don't recall the requirement to obtain a permit from the Orleans Levee District. Now, many of those permits were already worked out by the Corps. Q. Okay. All right. Do you know whether or not in fact the Orleans Levee District had a chance to review the drawings and specifications which later became the plans and specifications which formed the basis of the opportunity to bid? A. During that construction period and time, for the project that we're talking about,

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Dwyer Road, I was informed that -- by the Corps of Engineers representatives, that all parties we've talked about so far, the Sewerage & Water Board, the Orleans Levee District, the Port Commission, um -- all had opportunities to look at and review and talk about the plans and specs for whatever it involved their points of view. To include Entergy, also. Q. Why was Entergy involved? A. There was a high voltage transmission line running parallel to the levee structure that had to be dealt with at some point. When you're driving sheet piling with cranes and various booms, there's a great concern of interfering with the power that supplied I think Metairie at that time. Q. All right, sir. Do you know a gentleman by the name of Stephen G. Spencer? A. I may have come across him in the construction process. I can't remember him at this time. Q. All right. Did you have any working relationships with anyone from the Orleans Levee District during the time that you were preparing the bid package or that you -- during
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A. Um -- my hypothesis is, and back when I was working for the Corps, once a structure was built it was turned over to a local authority, and the levee district has had a lot of flood control structures turned over to them for maintenance and whatever. Q. Right. A. And my appreciation of it is this structure was eventually going to go back to them. The flood protection structure. Q. Okay. A. So that's why they had an interest in knowing what was going on. Not only that, during hurricane season they provided assistance to us in forms of having sandbagging to immediately close off this flood control area in case of an impending storm. So we had four impending storms during this construction process. And as part of our hurricane protection plan they were integrated in at that time, you know. We'd go so far with the construction, but then the rest of it may be supported by sandbagging or backup plans of having being balloons filled with sand, plastic balloons, to provide protection in case of an
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the time that you actually did the work? A. During the time that we actually did the work, yes. Q. Do you recall whether or not -- the name of the folks that you may have dealt with? A. Mr. Dom Elgazabo. How to spell his name I don't know. In fact, he started out working for the Corps in the construction division section, then he retired and went over to the levee district. So I was dealing with him from the Corps side and from the levee district side. Q. All right. Now, did Mr -- and I don't know if I can say this name, but did you interact with him on the site or did you interact with him in his office at the levee district? A. Um -- on the site. Q. Okay. So I gather then that the levee district would have from time to time its own representatives on the site? A. At particular meetings, yes. Passing throughout the construction process, yes. Q. All right. Do you know why they were there?

impending storm. Q. All right. Mr. McElwee, have you heard of a firm called Design Engineering, Inc.? A. Yes. Q. Do you know, sir, whether or not Design Engineering, Inc. had anything whatsoever to do with this Dwyer Road project? A. They had everything to do with this project. Q. What did they do, sir? A. They were the design -- they were the firm for the Corps of Engineers that designed and monitored this construction process. When I worked for the Corps as a quality assurance rep, the Corps used to do a lot of that work with their own engineers. They contracted Design Engineering to perform what they used to perform when I used to work for them. And Mr. Jim Lumsden was one of the design engineers on the project, on the Dwyer Road job. Q. All right. I'm going to show you a document that has been numbered OLD-MRGO-BOOM-003. MR. TREEBY:

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It's incomplete. You should have another five numbers. MR. BRUNO: (Indicating.) MR. TREEBY: It's cut off, I think, because all those have more numbers. MR. BRUNO: Yeah. This is the way they were given to me. Every last one of them is cut off at 3. MR. TREEBY: I got the right ones. MR. BRUNO: Well, I was hoping -- it's August the 14th, 1998. It is a letter from the Board of Commissioners of the Orleans Levee District. It is directed to John Holtgreve, Design Engineering, Inc. Let me show it to the witness first and we can just take a look at it. EXAMINATION BY MR. BRUNO: Q. How about this: You look at it. I'm going to give it to Bill before I ask you any
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figure out the Bates numbers on these documents. Let me show you first a document which is Bates numbered OLD-MRGO-BOOM-00329613. And his is just to give you -MR. TREEBY: 23. MR. BRUNO: No, no. This is -MR. TREEBY: It's 23. You said 13. It's 23, at the end. MR. BRUNO: I'm sorry. Bill, I wrote down. Give it to me again. 003 -MR. TREEBY: 29623. EXAMINATION BY MR. BRUNO: Q. 00329623. Okay. Fine. Now, this is just to give you a frame of reference for the next document. Just read it. (Tendering.) A. Yes, sir. Q. Okay. And here we have a letter from a Mr. Lumsden from Design Engineering. Do you know who Mr. Lumsden is or was? A. Yes, I do.

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questions. MR. BRUNO: I'm going to let him look at it, I'm going to give it to you, see if you can find it before I ask any questions. Same thing with the government. Guys, this came yesterday. Okay? This is not something that you've been having. So I don't know if you've got a separate book. MR. TREEBY: He just gave us copies. Just now. MR. BRUNO: Oh, Scott. Okay. So this would be toward the end. Bill, if it's in order it's the last couple of pages. MR. LEVINE: This one? Is it August 14th, 1998? (Lunch break.) EXAMINATION BY MR. BRUNO: Q. Okay. While we were off the record, Mr. Treeby was kind enough to allow us to

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Q. Who is he? A. He was one of the design engineers that worked for Design Engineering, Inc. relative to preparing this project for bid and also administering it during construction. Design Engineering Construction, Inc. was the consultant that the Corps of Engineers hired to do the engineering for this particular project. Q. All right. Now, you see here, obviously, a letter from Mr. Lumsden of Design Engineering to Mr. Stephen Spencer who is identified on this document as the Chief Engineer for the Orleans Levee District, and he says -- and it's regarding the Dwyer Road drainage pumping station improvements discharge tubes and canal, which is the project you ultimately got. Right? A. Yes, sir. Q. He says, Dear Mr. Spencer, we submit herewith, one set of 95 percent drawings and specifications on the referenced project for your review and comments. Do you have any idea why Design Engineering would be at all interested in having the Orleans Levee District comment on

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its designs and specifications? A. Yes. Q. Why would they do that? A. Well, any particular interest that is involved in a particular project may be aware of information, it's called information sharing, to be disseminated amongst everyone so that nothing falls through the gap, I would say. You know, even though they're a design engineering firm, it's wise to have someone check over your work, look at everything. Q. All right. Then may I show you, please, OLD-MRGO-BOOM-00329621 and 22, which is a two-paged document. I showed this to you early earlier. Okay? A. Yes, sir. Q. And you see here that that is the response by the OLD to Mr. John Holtgreve of Design Engineering, Inc., and he says, we have reviewed your 95 percent submittal of July 20th, for the referenced project, with the following comments: Now I would like to draw your attention very specifically to Paragraph Number 11. A. Yes, sir.
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the devices would be metal plates along the wall installed to check survey elevations or survey transversing -- you know, doing some cross-sections. Q. Uh-huh. A. There was no electronic devices that we installed, but we constantly monitored on a weekly basis doing survey cross-sections to -and survey measurements to show the government movement in the railroad tracks, movement in the floodwall. Q. How about piezometers? A. Piezometers would tell us about the water levels relative to the excavation -Q. Right. A. -- but wouldn't necessarily tell you about movement of the ground surface. It would only let you know what the water levels were over a certain period of time and should there be a need for concern. Q. Right. But the reason I asked the question is because I thought we learned this morning that this seepage could cause structural damage. A. It could.
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Q. All right. Now, he says here that -and he's referring to a contract section -- the contract shall install monitoring devices in the adjacent flood protection system to warn of any structural damage that may occur due to excavation work. Now, my first question to you is, you as a contractor, sir, you would agree with me that monitoring devices could cover a whole panoply of different kinds of equipment. A. That's correct. Q. Do you, as a contractor, preparing to prepare a bid for this contract, have a better understanding of what monitoring devices are being referred to in this contract specification? A. As per that letter, I don't know exactly what they're talking about, but if we go back to the actual contract plans that were issued to the contractors, I can tell you some of the items that they did talk about. That is like a general paragraph, but it was more specific in the plans. Q. Okay. A. In the plans, um -- you know, some of

Q. And because the seepage could cause structural damage I'm wondering if the monitoring devices might -- as described here, generally may have included piezometers since the purpose of these devices was to warn of any structural damage that may occur to -- due to the excavation work. Or is that a different -- or am I way off base? A. No, you're not way off base. The data that I as a contractor would give to the Corps of Engineers in our daily reports concerning piezometer measurements was utilized by engineers to look for any changes. Q. Right. Okay. A. So the engineer would use that. Q. Right. A. I, as a contractor, per se, would not -- would only get alerted if the measurements of the water levels were kind of high for my pumping system. Q. All right. But this section seems to require the contract to require that these things be installed, not necessarily by the contractor but by someone over whom the

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contractor has some control. Is that what's -- am I wrong with that? MR. TREEBY: Objection. Leading. A. I could better answer your question if I had a set of specs in front of me and look at Section 2200 and see what section are we talking about, to answer that question. Because there's various sections in the plans and specs. And if it's dealing with dewatering, then I can tell you it's dealing with dewater. If it's dealing with something else, embankment placement, I can tell you what they're referring to. I need to see 2200. Q. All right. Can you tell me what the purpose -- I mean, from reviewing the comments by the chief engineer of the OLD, are you able to discern from his comments what it is that the OLD is interested in as regards the construction contract? A. May I see that document? Q. Yes. And I ask that because I see in 1, floodgate; Number 2, I see, um -- something about a fence; Number 3, flood walls; 4,
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what they were concerned about. Q. Right. So let's see. Is it fair to conclude that the OLD 's interest is in how the project may or may not impact the flood control structure that's there? MR. TREEBY: Object. Leading. A. Ask that question again. EXAMINATION BY MR. BRUNO: Q. Is it not a fair conclusion to draw from this piece of paper that the OLD 's interest in the plans is to evaluate the impact of the plans on its flood control structure? MR. TREEBY: Same. A. That is fair to say from that letter, that is their interest. The impact of the work on the flood control structure. EXAMINATION BY MR. BRUNO: Q. I note that in Number 8 they say decision to pull or leave in place the sheet pile. How might that, if it does, have any impact on the flood control structure? A. During excavation, there was a
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existing floodwall; 5, T-wall, et cetera. I've lost the second page. Sorry. There it is. 6 says flood protection; 7 says hydrostatic pressure, sheet pile, et cetera. (Tendering.) MR. LEVINE: I'm going to object to the form. Are you asking about the whole document or just -MR. BRUNO: Yes. The whole document. I'm asking him if this document gives him any indication as to what the interest is, if any, that the OLD has in the specifications. A. After glancing at this correspondence, it appears that their interest was basically operational, as far as flood control. They do have some other engineering comments about certain things, but the gist of it is hurricane season. EXAMINATION BY MR. BRUNO: Q. Right. A. And what's going to be in place during that time frame. Paragraph 8, 9 and 11 is the bulk of

question as to -- when we as a contractor was directed to install sheet piling to do excavation, there was a question or whether or not that sheet piling was going to stay in place or be removed. If it was going to be removed, I think their concern at that time was going to be what's going to take place to keep the area that was excavated stable, what materials are going to be used to backfill after removing the sheet piling, so that voids and everything were not in place. Q. All right. I see. Can I conclude from your answer that the removal of the pile would create voids? A. The excavation and the removal of the piles would create voids. Q. Right. And what would be the consequence of having voids? Would that relate back to what you told us this morning about? A. The consequence would be some traverse, traverse movement of the earth from one part to the other. Whether it's your foundation under your floodwall migrating to the void, thus leaving you with an unstable surface --

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Q. Okay. A. -- or allowing a void for water to travel in. Q. All right. So is the business of the removal of sheet piles relevant to the potential damage to the floodwall? A. Yes, it's absolutely relevant. Q. All right. Let me show you -MR. BRUNO: Bill, I'm going to ask your help again, because again I don't have the darned -- I got the cut off page. It's about a quarter inch from the bottom -- it cuts off, but it looks like it says preconstruction conference agenda. And then right below that, it says, contract number, DACW 29-01-C-035, southeast Louisiana, Dwyer Road drainage pumping station. MR. LEVINE: Can I look at it real quick? MR. BRUNO: (Indicating.) EXAMINATION BY MR. BRUNO: Q. Yeah. I'm showing you
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one of its subcontractors to come to that preconstruction conference, which included its selected design engineer, Mr. J. Michael Dixon. Q. Who's he with? I'm sorry. A. He was with Dixon and Associates, and he was also with another firm. But when he transferred from firm to firm I stayed with him. McElwee Brothers stayed with him. Um -during the preconstruction conference, the item you see on the agenda were discussed and an when we got down to excavation and dewatering issues I deferred all questions to Mr. Dixon and allowed him to answer them. So when he explained in detail what his, um -- design for retaining sheet pile walls would be and how he would go about doing the dewatering system -in general, he didn't get into specifics. Q. All right. Did you have any understanding as to how far below the surface the T-wall went? A. When I answer this question I'm going to say I'm including the piling dealing with the T-wall. Q. No. Well, let me ask you -- I should ask it this way, because I'm not quite as
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OLD-MRGO-BOOM-00329559, 60, 61, 62, 63 and 64, I'm guessing. Do you recall seeing a document like that, Mr. McElwee? A. Yes, sir. Q. What is that? A. It's the preconstruction conference agenda. This took place prior to execution of work on the project. This was after bid. After we placed the bid and received the project, and prior to going out on the job, the Corps holds what's called a pre construction conference where all parties that have an interest are invited to attend and items are discussed, relative to the contract. Q. Do you recall at that preconstruction conference having dialogue with the United States Army Corps of Engineers about underseepage issues generally? A. Yes. Q. All right. Can you just share with us, you know, how those -- how the subject came up and what was discussed? A. Um -- because of the nature of the contract, McElwee Brothers invited every last

familiar with T-walls as I am I-walls: In a T-wall construction does the sheet pile go by low the bottom of the T? A. Yes. Q. Okay. And we've learned from your course materials that the sheet pile itself can act as a cutoff for seepage. A. That's correct. Q. So what I'm trying to understand is whether or not you were advised by the Corps as to how -- what the sheet pile depth was under that T-wall? A. Yes. It was indicated in the plans. Q. All right. Do you recall -- I know, you may not remember, but do you remember its depth? A. I can tell you the length of the sheets. They were roughly about 12 and a half. 14 feet long. So they were 12 and half, 14 feet long below the base of the T. Yes. Q. All right. So that you think the negative elevation was about negative 12? A. I'd hate to answer that question for you right now because I'd have to see a set of drawings --

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Q. Fair enough. A. -- and I'd have to see the datum we were on. Q. All right. Here's the simple last question with regard to that T-wall business. Was the sheet pile depth relevant to the issue of underseepage as it relates to potential damage to the flood control structure? A. Was sheet pile depth relevant? Yes. Q. All right. Okay. Why is the sheet pile tip depth relevant? A. Well, the purpose of the sheet pile is to act as a cutoff wall. And if -- depending on how deep your soils investigation shows you the strata that may transfer water is, you have to design to that depth to cut that water off. So it's very important. Q. Okay. To kind of walk through this and see if we can make it as easy as we can, let's assume we have an engineering report that gives us information about the soils strata below the work site. Okay? A. Yes. Q. Let's further assume that the soil information reflects a 11-foot layer of clay,
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(Exhibit 7 was marked for identification and is attached hereto.) EXAMINATION BY MR. BRUNO: Q. Okay. This is real rudimentary. All right. You can see that what I've drawn there I've attempted to draw a T-wall with a sheet pile that goes below the T-wall. A. That's the sheet pile depth here? Q. No. A. No, this is the sheet pile. This is excavation. Q. Yeah. This is the sheet pile. A. Okay. Q. This is the bottom of the T. A. Okay. Q. This is surface and the earth berm. A. Got you. Q. This is the clay layer, this is the sand layer. A. Okay. Q. You can see the excavation. A. That's correct. Q. And I've purposefully drawn the excavation to go below the clay layer and break into the sand layer.
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and below that a 10-foot layer of sand. A. Oh, yes. Q. Okay? And let's further assume that the sheet pile depth is 15. A. Yes. Q. Okay? Now, what is the relevance of that sheet pile tip depth to any excavation that you may be contemplating doing on the flood side of the flood protection structure, if any? MR. LEVINE: Objection. Improper hypothetical. You can answer. A. I'm going to try to answer. What is the relevancy? EXAMINATION BY MR. BRUNO: Q. All right. Let me draw it for you. We'll do it that way. I'm going to mark this as McElwee Number 6. MR. JOANEN: It will be 7 if you want to count that map. MR. BRUNO: 7. Okay.

A. That's correct. Q. But I've shown the bottom of the excavation to be equal to the bottom of the sheet pile tip. A. That's correct. Q. Okay. So what if anything -- how is the sheet pile tip relevant to that kind of excavation? A. It's very -- during the excavation we're fine. But when I get ready to remove these sheets, like I talked about earlier, that's when it comes into play. Q. Okay. A. The depth. This area that -- the clay. Q. Right. A. If this void in the clay is not filled to be like the in situ, we call it in engineering, the existing situation, that's when the problem's going to occur. Because the water that's here flowing is going to have I guess a snorkel, a way to come up. Q. Right. A. So if we don't treat this area that we penetrated and excavated to block it off, we

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got a major problem. Q. Got you. Okay. All right. Now, if the sheet pile depth is deep enough to cut off that potential underseepage, then you don't have to worry. Is that right? A. If we get ready to remove those sheets -Q. I'm sorry. I'm talking about the sheet pile as a component of the floodwall now. A. Okay. Q. Let's say it goes down to 40 feet. A. If it does, you don't have a problem because it's cutting the water off already. Q. So you have to know, in order to have some intelligent basis to plan, how deep your sheet pile tip is in your floodwall. Right? MR. TREEBY: Object. Leading. A. As a contractor, you need to know. EXAMINATION BY MR. BRUNO: Q. All right. Now, the next document is the document right before, and you'll help me remember the number. OLD-MRGO-BOOM-003 -- it's the document right before, the one with the little note on it. What's that number?
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relationship with the Corps, just in terms of structure. Okay? While you're doing the work. I see this document, and -MR. BRUNO: And it's this one. MR. LEVINE: How many pages is that? MR. BRUNO: It's just one page, the number again is cut off. I apologize. It's a few pages -- I'm going now from the bottom to the top. So if we just keep going in that direction we'll catch up with you. MR. LEVINE: That is 329547. MR. BRUNO: All right. And it's entitled who talks to whom. EXAMINATION BY MR. BRUNO: Q. First of all, sir, have you seen that document? A. Yes. Q. What is this document? A. This document is one that was utilized
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MR. LEVINE: 329558. EXAMINATION BY MR. BRUNO: Q. Thank you. On this piece of paper I'll just share with you that it says the job is such that no work on the flood walls is to be done during hurricane season. Do you remember that to be true? A. Yes. Q. Do you know why that was? A. Yes. Q. Why? A. Because we were, during the construction process, breaching the floodwall. And if any impending storm was coming during that time frame some, the amount of work effort to seal off that opening required time. But during hurricane season you don't have a lot of time. If a storm is impending, over in Jamaica, you know, you might have three, four, maybe seven days. Seven days is not enough time to close that void -Q. Okay. A. -- to its existing state. Q. All right. Now, let's talk about your

during a partnership session that took place after the preconstruction conference to get a full explanation of who talks to whom during the construction process so there wouldn't be any conflicts, ambiguities -- I mean, there were so many agencies involved. We already discussed quite a few of them. Q. Yes. A. And one of the concerns that McElwee Brothers had, and then also the Corps had, was to make sure we understood the lines of communication. Because if you got four or fifth engineers working on a job and two or three of them coming up giving directions, it creates havoc. Q. Okay. A. But if you have one point of contact, those other engineers can work through that one point of contact to convey whatever information needs be conveyed throughout to all the rest of the parties. Q. Now, was there a Corps engineer person on site every day? A. Yes. Q. And what was that person's title?

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A. I'd like to clarify. Every day of construction, that work was being performed. Q. Yes, of course. A. Title? Um -- was construction representative was a QA person, quality assurance rep. I mentioned him earlier. Q. Right. Quality assurance. Was that person, to your knowledge, an engineer? A. No. Q. And what was the role, as best you understood, of the presence of the quality control person by the Corps on the site? A. I'd like to clarify something. Quality control was the contractor's personnel. Quality assurance -Q. I'm sorry. Quality assurance. A. -- is the government 's representative. Q. QA. A. QA. That's correct. Q. All right. A. His role was to be abreast of the plans and specifications, and the contractor's, McElwee Brothers', procedures and, um -- work efforts taking place on a daily basis to assure
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A. Yes. Contracting officer. Q. And then below him is administrative contracting officer? A. Administrative contracting officer. Q. And then there's a team leader? A. Yes. Q. And a project engineer. A. Yes. Q. And then the inspector. A. That's correct. Q. Okay. Now to the right of that, this is the McElwee people, right? A. That's correct. Q. And to the left of that, who's DEI? A. That's Design Engineering, Inc. Q. Okay. And then the other -A. Points of contact. For the railroad -Q. Sewerage & Water Board. A. -- Sewerage & Water Board, et cetera -Q. Got you. A. -- the other entities. It shows who they need to speak to. Q. They interact with the project
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that all mechanisms -- and I say mechanisms because there's a contract quality control plan that McElwee Brothers submitted to the Corps for review and approval, and there were courses that McElwee Brothers personnel had to attend for contract quality control in relationship to the QA person, documents that need to go back and forth every day. And he would monitor all the processes and alert his project engineer of any imperfections or things that need to be concerned about. Q. All right. On this chart I don't see someone labeled quality assurance. I see the word inspector. Is that the same person? A. That is the same person here, yes. Q. Okay. All right. And -MR. LAMBERT: What's the chart from? MR. BRUNO: The OLD documents. We've already marked it. We haven't marked it, we have described it. I'm sorry. EXAMINATION BY MR. BRUNO: Q. So this middle line, that's the Corps of Engineers personnel?

engineer and the inspector. A. That's correct. Q. Now, if I'm right, McElwee is supposed to interact with the inspector. A. That's correct. Q. Not with the project engineer. According to this chart. A. That's not correct. Because the project engineer will -- his line extends down to the inspector. So he has a right to talk to anybody that the inspector talks to. Q. Do you have a right to call the project engineer or are you supposed to call the inspector? A. The inspector is on site, and if there's a problem I contact the inspector. If the inspector is not available, then I contact the project engineer. Q. All right. Now -(Brief interruption.) EXAMINATION BY MR. BRUNO: Q. Okay. While you were doing the work, did you encounter -- I'm just going to hold this up. Okay? This is Exhibit Number 5. This is the Corps' manual on underseepage.

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Did you encounter issues that were described by these course materials during the work that you did on the Dwyer Road project? A. Yes. Q. Okay. Now, did you have a dialogue with the United States Army Corps of Engineers on those issues? A. Yes. Q. All right. Now, let's start from the beginning. You've produced to us this geotechnical investigation by Eustis. A. Yes. Q. And we talked a little bit about that before. Maybe we didn't. I'm sorry. I think you had suggested -- you'd requested some soils information, you didn't get it. And then you made a reference to the fact that at some point later you may have gotten some additional information. A. Yes. Q. Okay. Just to kind of put us back in context. All right. What was the occasion after you started the work that you felt it necessary to ask the Corps for additional soils
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Q. Okay. All right. Now let's -- I should have done this before, and I apologize. But the work that you contracted to do for the Corps was to install some large pipes on the batture, to make it easy, right? A. Yes. Q. And they were going to be enclosed in some concrete, um -- culvert? A. Penetration of the T-wall, there was some piping -Q. Right. A. -- and then the piping ended and went into what's called a sluice gate structure where the gates can be mechanically opened and closed to prevent backwater from coming from the canal into the pump station. Q. Okay. A. And from the sluice gate structure out to the canal was box culvert canal sections. Q. Okay. All right. So let's see. There are three parts to this, right? A. Yes. Q. There is the floodwall demolition and reconstruction, there is the sluice gate construction, and there is the box culvert
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information? A. The occasion was during the design process of the temporary retaining structure, the sheet piling for the excavated hole, um -in the plans and specifications the Corps required a design for dewatering, a dewatering system to be in place. In that process, Mr. Dixon needed to know some soil parameters we call them, what types of soils are where. The borings were there, but the characteristics of the soils which are in other lab tests wasn't. And so McElwee Brothers went back to the Corps of Engineers to request that information. And at that time, this is after the bid process, I personally was informed that the Corps did not perform the soils testing relative to those borings, it was done by Eustis Engineering who were in concert with Design Engineering, Inc. to do the soils evaluation for the project. Q. Right. A. And then I was given a copy of this report by one of the Corps of Engineers representatives. He said, you can take this with you since we don't have that information.

construction, right? A. Yes. Q. Which came first, second and third? A. Actually, timing dictated it because of the non hurricane season and hurricane season. Q. Right. A. So when we started initially, it was during August, that was non hurricane season, but, however, because everything wasn't in place to begin the T-wall work for demolition and getting it back up in a proper time frame. Submittals weren't reviewed by the Corps. Coordination hadn't taken place. We didn't jump on the flood control structure then that was there, we went and did the excavation for the box culvert canal section. Q. Okay. All right. So that was first. A. Yes. Q. Now. And was that the event which suggested the need for the additional soils information? A. That's correct. Q. Okay. And again, the borings weren't enough, you needed to know more about the

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soils. And now, was that solely to assist you in building the cofferdam or did it have anything to do with the potential for underseepage damaging the flood walls? A. It was to control seepage. Q. Okay. Which covered both of those issues, right? A. Yes. Q. Okay. MR. BRUNO: I don't see a need to attach the Eustis report. Does anybody want to attach it? Hearing no response, we won't. EXAMINATION BY MR. BRUNO: Q. Now, you now have the Eustis Engineering information. Did that solve your problem with regard to this excavation for the box culvert? A. No. Q. Why not? A. Because in that report we didn't have, um -- grain size distribution test analysis in it. Mr. Dixon, at that point, as a design engineer, said, Melvin, I'm going to use worst
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Q. Well, I guess I got confused. I don't know if it was the dewatering or the box culvert. A. The dewatering. How did it change it? Q. Yeah. A. It actually didn't change it. It just -- well, yeah, it did. It let us know that -- what size pumping system we need to put in place, how many straws, at what intervals, what size pump we needed to operate to keep up with the water flow that was expected to come in that void -Q. Okay. A. -- so we could size up the right equipment to handle whatever waters were penetrating the soils to keep from filling the void up. Q. Now, looking at the Eustis report, at Page 16, under the subheading flood protection -MR. TREEBY: You now need to attach it. MR. BRUNO: Okay. I think I will. And let's mark it as 8.
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case scenario, what if the particle size distribution was this size, and I'll design a system based on that. So he utilized -Q. Okay. A. -- that scenario. Worst case. Q. Bottom line is, the Eustis Engineering report did not give you sufficient information in order to assist you with the concerns that you had about underseepage, is that right? A. That's correct. Q. Okay. And so he just assumed the worst case scenario with regard to particle size and designed from that. MR. TREEBY: Object. A. Yes. EXAMINATION BY MR. BRUNO: Q. Now, exactly how did that affect the design, if you can tell us? MR. TREEBY: No objection there. EXAMINATION BY MR. BRUNO: Q. In other words, the worst case scenario, how did that change the design? A. Design of the box culverts?

(Exhibit 8 was marked for identification and is attached hereto.) EXAMINATION BY MR. BRUNO: Q. Okay. Now, first of all, this may be obvious, but is it crystal clear that flood protection was at least considered by Eustis Engineering in this report? A. Yes. Q. All right. Now, it says here, on the T-wall, it says we -- they're talking about -well, read it for me first. A. Which paragraph? Q. Number 47? A. Paragraph No. 47. T-wall stations 9 plus 15 to 10 plus 40. The sheet pile cutoff beneath the T-wall along the east side of the Jourdan Road embankment will be penetrated by three new discharge pipes. In addition, existing piles supporting the T-wall will be removed to make room for the penetration of the discharge pipes. An analysis of the t-wall with the full Jourdan Road embankment at elevation 33.5 has been made assuming a storm water level of 31.5. Results of these analyses are presented on Figure 12. We have assumed

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batter piles will support the T-wall base at elevation 18. Summing moments about the base of the T-wall indicates the sheet piles must penetrate to an elevation minus 6 and to the top of the stratum 5. The top of this sand occurs at elevation minus 17 in the borings drilled for the pump station just to the east of this project site. Therefore, we recommend the sheet piles have a design tip at elevation minus 20 to ensure penetration of Stratum 5. Q. So what's that all about? Why do you want to make certain that the sheet pile tip goes into Stratum 5? A. If I can go back to Exhibit 7 -Q. Yes, you certainly may. A. -- it was to -- with the new design of the sheet piling that was here, to make sure that it goes to the bottom of the sand layer -Q. All right. A. -- to create a cutoff wall. Q. That's right. A. The existing sheet pile was too short. Don't go back to that design elevation right here. Q. All right. Go deeper.
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So that's why they used 31.5. Q. Got you. A. The normal level would be fruitless. We might as well not even have any levees or I-walls if we're going to just do the normal level, because the normal level the swamps would just -- the water would rise and go out on it's own. Q. All right. If you would, go to Page 18, Paragraph 52, talking about the I-wall. A. Page 18? Q. Yes, sir. It says here, the sheet pile should be welded to the discharge pipe that passes through the wall to prevent seepage between the pipe and sheet pile. The sheet pile design should be carried at least ten feet beyond the limits of the excavation for the southern most discharge pipe. In your view, does this also address the seepage issues that you all were trained about when you took that course we've made so much reference to today? A. Yes. Q. Let's look at Page 19, Paragraph No.
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A. Go deeper. Q. All right. So do we have here, do you believe, a paragraph that addresses very specifically what is taught by the Corps in its earth work quality verification training course? A. Yes. Q. All right. Now, I also not that in order to conduct this analysis, the analysis wasn't done with the water at its normal level, it was done with the water at a flood stage or a storm stage, at 31.5. A. Yes, sir. Q. Why would you do that? Why would you look at the storm level instead of the everyday level of the water? A. There are engineering programs where you can plug in different models, we call it, situations and scenarios, and the purpose for designing for that is, I guess over the -normally the Corps looks at a 100-year history of the worst case scenario. What's done happened here before. So if we know what's done happened here before. You design to that. You don't design to anything less than that.

56. It says here, in addition to the ground water study recommended, the existing condition of surrounding structures of the project site should be assessed. Our preliminary pressure relief assessments indicate structures within 1,000 feet may be influenced by a pressure relief system. First, what is this pressure relief system that they're talking about? A. The pressure relief system is the dewatering system that you put in place to keep the water from filling the void and messing with other structures. You design something to pick that water up and discharge it in a different area to levelize the water flow. Q. Let me slow down with you now. So this is that situation where you dig a hole -A. Yes. Q. -- and you put sheet pile in place to keep the water and the soils from dumping back in the hole. Right? A. (Nods affirmatively.) Q. And then you excavated what's inside of this cofferdam is what they call it, right? A. Yes.

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Q. Okay. So when you have a structure like that, are you supposed to do a ground water study? A. You have to. You should. Q. You should. A. You're obligated. Q. You're obligated. A. I mean, as an engineer, you know, you're changing existing conditions. Q. All right. A. So what do you need to do to stabilize the conditions you're working with. Q. What is a ground water study, and how does one do such a thing? A. We go back to the soils borings and engineering reports, you know, looking at particle size distribution, looking at, um -water table contents in these soils borings, um -- sticking in piezometers. You may take a piezometer and go down to the sand layer and measure the level of water that's coming up that piezometer. That will give you the head pressure on that flow. Q. Right. Right. A. Um -- doing those type of things help
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feet of your site? A. Yes. Q. All right. Well, tell me, what exactly are you -- it says, we recommend a series of settlement points be established within a thousand feet. What is that? What are you doing when you establish a series of settlement points a thousand feet from the excavation? A. You take the center point of your excavation and you sort of create a radius of a thousand feet. Q. Right. A. Whatever falls in that thousand feet radius, you set you some marks or monuments out there that you can come check every so often to see if you're having any impact on the ground. Q. You know, as a lawyer, I've read about and heard about and experienced cases where contractors do pile driving. It's well known that when you drive piles into the ground there is the potential that you might harm your neighbor's property and, as a result, you know, they always say take pictures of the property and do assessments to see whether or not that
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you come about with your anticipations on what you need to do -Q. Okay. A. -- while you're excavating that hole. Q. All right. Now, do you always need a pressure relief system, or is that -- in other words, every time you do an excavation like we've just described, you're on the batture side, you're -- let's say you're within 100 feet of the floodwall, you're going 25 feet down. Do you need a pressure relief system for something like that? MR. LEVINE: Objection. Hypothetical, vague. A. If you are in navigable waterways, if you are dealing with Artesian spring systems underneath the surface, you should consider that. You must consider a relief -- water relief. EXAMINATION BY MR. BRUNO: Q. Now, there's a suggestion here that within a thousand feet -- that's a big piece of ground, isn't it? I mean, a thousand feet. A. Yes. Q. With any structures within a thousand

pile driver is going to damage your neighbor 's property. I'm wondering whether or not, and you tell me, please, if there is any similarity between the care that you take to make certain that you don't damage your neighbor's property from pile driving to the care that one would take to make certain that you don't do any damage to your neighbor's property if that piece of property happens to be close to a flood control wall next to which is a batture, next to which is a waterway. MR. LEVINE: Objection. Vague. MR. TREEBY: Objection. Vague, leading, no foundation. EXAMINATION BY MR. BRUNO: Q. Is there any relationship between those two things? MR. LEVINE: Objection being compound and ambiguous. MR. TREEBY: Same thing. MR. BRUNO:

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What's wrong with you? MR. TREEBY: Leading. A. Um -- there is a relationship, and it goes back to ethics and, um -- codes of conduct by professions. Anytime you're dealing with impacting anything in the area, you ought to consider your impacts. EXAMINATION BY MR. BRUNO: Q. Right. Well, I guess what I was asking you is that most people understand and know about pile driving. In fact, on Page 22 of this very document, at Paragraph 63, it talks about that. A. Uh-huh. Q. Take a look with me. It says, vibrations during installation of structures and sheet piles my affect nearby structures. Okay? A. Uh-huh. Q. I'm just wondering if excavating in an area on the batture next to a flood control project may affect nearby structures in the same way that pile driving -A. Yes. Yes.
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wouldn't do it. MR. BRUNO: To form? MR. TREEBY: Yeah. MR. BRUNO: Because clearly I can't help your form. I've tried in vain, in vain, to change any question to handle -MR. TREEBY: So we're reserving objections as to form just to get this thing moving. Is that okay? I don't care. MR. BRUNO: No, I would like a chance to change my form. MR. TREEBY: Okay. I'll continue -MR. BRUNO: I'm still going to -- it may be a vain, it may be just like, you know, bearing my breasts and asking you just to shoot me. MR. LAMBERT: Wait, joe. No. Let's not go
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MR. TREEBY: Objection. Same objections we made before. MR. BRUNO: It's noted, man. It's noted. MR. TREEBY: Well, I've got to make it. I'm sorry. MR. BRUNO: It's noted. MR. TREEBY: Do you want me give me a continuing objection to every question? MR. BRUNO: Yeah. MR. TREEBY: You'll stipulate that I can assert it, I don't have to do it literally? MR. BRUNO: Absolutely, baby. You just knock yourself out. MR. TREEBY: I asked about it earlier. You

there. (Off the record.) EXAMINATION BY MR. BRUNO: Q. All right. That's all we have on that. We've marked it, let's move on. What is the next water seepage issue, if any, that arose during the work? We talked about the -- you know, the dewatering system. What came up next? A. There was a couple of other issues. During the demolition of the, um -- T-wall, we excavated through some humus material, that's material full of organics, old trees, limbs, stumps -- in fact, we have some photos that I think we give to you all and also to -- to IKON for anybody that wanted copies on the plaintiffs and defendants side, showing tree limbs and trunks and water just dripping from it. Q. Let me slow you down. I think you've produced that, so let's see if we can find it. Didn't you do a little -- a paper? A. Yes, sir. Q. And in that paper, you -A. May I make a correction? My son did a

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paper while he was at Grambling State University. Q. Oh, this is your son. A. Yes. Q. Okay. Well, I'm sorry. I thought -let's take a quick peak. I guess we'll look at it for the sole reason of seeing if these photographs that he has attached are the ones that you were referencing. It's Page 8. A. Yes. Yes. Those are job site photos by McElwee Brothers on this project, Dwyer Road project that we're talking about. And you can look at -- they're in color, the original photos, but if you look at the soils, you can see it's old coffee ground material, we call it. And you can find branches, tree trunks -it was not foundation material to be used back in the finished structure. So it's stuff we had to haul off. Q. All right. So I only show it to you to show that we have photos and these are the photos, so I'm going to mark this entire document as McElwee number -MR. LEVINE: 9.
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side -Q. Right. A. -- to assist with some of the dewatering at those levels. Q. All right. Now, what phase of the project does that photograph depict? MR. TREEBY: What page are we on, please? A. Page 8 of 13. MR. BRUNO: 8 of 13. The first photo. It's the one with the page with only one photo on it. MR. TREEBY: No, I was just confused because the next one says 9 of 14. Whatever. A. Okay, it says 8 of 13 on the page I'm looking at. EXAMINATION BY MR. BRUNO: Q. Anyway, what phase of the work does that photograph depict. Is that the sluice gate, the demolition of the T-wall? A. This is the box culvert section. In fact, we're looking at the Inner Harbor Navigational Canal. You see the dolphin
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MR. BRUNO: It's 9? (Exhibit 9 was marked for identification and is attached hereto.) Q. 9. Okay. But again, you didn't write this paper, your son wrote the paper. A. No, my son wrote the paper with my assistance. I helped him out as far as whatever he needed. He did his own wording and review of the project documents and stuff like that. Q. Okay. Just -A. I did check it and I can stand behind it. I can tell you that. Q. Of course. But let's see. First photo is at Page 8. What is that a photo of? A. This explains it on that Page 8 of 13, McElwee Brothers' photo of a temporary retaining structure excavation. It shows the sheet pile wall, the whalers and the cross-bracing to hold the hole open, and there's a track hoe boom in the picture excavating the soil. You can also see a pump to the left of the picture -- well, middle of the picture almost, looks like, but on the left

structure out there? Q. Yes. So this is that excavation which prompted the request for the additional soils evaluation, right? A. That's correct. Q. All right. Look at the next page which has a couple of more photos. Is that the same, um -A. Same excavation? Q. -- same excavation? A. Yes, sir. Q. Okay. Thank you. MR. LEVINE: Joe, just to be clear, these are all on this job site? MR. BRUNO: Yes. A. Yes. MR. BRUNO: That's what we just established. THE WITNESS: Those are all photos of the Dwyer Road -MR. BRUNO: Those are all photos of the job

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site. And we just went through where it was. That's fine. Let's move on. EXAMINATION BY MR. BRUNO: Q. Okay. Now -- okay, I thought perhaps we -- and I brought up the pictures because I thought we had -- I thought I remember seeing a picture of the organic material underneath the T-wall demolition. A. You did. You did. It's in some -something I submitted to you all. And I submitted to -THE WITNESS: That I submitted to IKON that's on that disk, Mr. Treeby? MR. TREEBY: Okay. A. That's where those are. EXAMINATION BY MR. BRUNO: Q. Okay. Well, I can't put my hand on it at the moment. But anyway, let's just -- let's just go to a continuation of your description of the problems you were having with the soils. Now, you got so far as you were demolishing the old T-wall and encountered a lot of organic materials below that foundation,
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there's meetings -- biweekly meetings, status meetings that were being held. We'd have to come to the Corps and tell them what evaluation McElwee Brothers found. Q. Get some questions answered. A. And there did come a point with the dialogue where we sat with the engineer and said, look, we got some concerns. Q. Let's start with this: The contract, did it call upon McElwee Brothers to remove the pile? Just flat out yes or no? A. The documents weren't clear. That was one of the questions we had on the project. Q. All right. Did the specifications reflect that there were piling there in the ground? A. Yes. Q. Did the specifications indicate to you what you were supposed to do when you encountered those piling? A. No. Q. Okay. All right. Now, is this the point where McElwee brings his engineering experience and his own training and his knowledge of soils to the table?
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and then I think you were about to tell us what the issue then became. A. Um -- reevaluation of our dewatering system such that we could maintain a stable excavation right at the T-wall. Um -- we also ran into some problems during the extraction of the concrete piles from underneath the T-wall. McElwee Brothers and the Corps was not definite on the existing length of the concrete piles under the T-wall, but there was concern that the piling probably penetrated a sand layer that was probably charged, meaning from the canal pressure on it, and we were going to extract these piles, and we wanted to try to define the lengths and after we pulled the pile what procedures were going to be used to fill the voids. Q. No, you're saying we here, and what I really need to understand is, is this McElwee Brothers who is undertaking this evaluation, or is it a dialogue that you're having with the Corps? A. It's McElwee Brothers taking on the evaluation, but there was some -- at the same time, the inspector is out there, and then

A. Yes. Q. All right. Now, so you see these piles. A. Yes. Q. What are you concluding when you see these things down there based upon your knowledge of the seepage issues and the like? A. Um -- my conclusion at that point, during a status meeting, was to -- we took -McElwee Brothers took measurements. Its quality control personnel and superintendent took measurements and they brought them to the table. We sat with the Corps of Engineers and said, we have some concerns. The specs called for demolition of the T-wall, but it doesn't get into specifics on the demolition. It didn't tell us what to do with the piles, and we offer a recommendation to Corps at that time. We offered a recommendation that we just cut the piles off. Leave them in place. Because we were concerned that we didn't know -- McElwee Brothers, we, didn't know how long the existing piling were, and if they were protruding into a sand layer that was charged by the canal system, we were afraid if we

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pulled a pile and it was charged that we could have seepage that could turn into something potentially uncontrollable right at the floodwall. Q. Okay. Could that damage the flood protection structure? A. That could have damaged the city of New Orleans. Q. Okay. A. Because we already demolished the wall, and then we're pulling a pile, and if water starts to come out of that hole we can't stop. Q. All right. Now, let me ask you this: Can you tell me whether or not the specifications were reasonably specific in order for you to ascertain as a contractor what you were supposed to do when you encountered these piling? A. No. They didn't. Q. Now, and can you tell me whether or not the Corps evidenced to you some understanding as to the potential for underseepage damage that may have occurred by pulling these piles?
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trying to bring to the Corps? A. No. He had no knowledge of it. Q. Okay. Now, all right. So did the Corps accept your recommendation to cut the piles? A. They teetered on it and then rejected it ultimately as a result of Mr. Holtgreve mentioning in one of the status meetings that he ever intended for the piling to be cut off. Q. All right. Holtgreve is the guy from the design -A. Design Engineering, Inc. Q. Okay. So he says all right. So the design guy comes in and says, wait a minute, now, I fully expected these things to be pulled, and so the decision was made to pull them. A. That's correct. Q. Okay. Now, now we have a new problem though, right? A. Yes. Q. Now we have voids. A. Yes. Q. Okay. So who -- well, first of all, was there a recognition by anyone in that
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A. Repeat that, please. Q. All right. Did you believe that in your conversations with the Corps about whether to pull or not pull piles that the Corps understood the problem the way you understood the problem? A. In a meeting, when I presented the problem, their geotechnical expert Mr. Vocovich fully understood what I was saying, because nobody else in the meeting understood it. Everybody was looking like, what is he talking about? Mr. Vocovich says, he has a valid point. Q. Now, Vocovich is who? He's not the quality assurance person; right? A. No. Q. Who is Vocovich? A. At that time, he worked for the United States Army Corps of Engineers New Orleans District in its engineering division. Q. Uh-huh. Right. A. Geotechnical section. Q. Got you. Did the quality assurance person evidence to you a working understanding and/or knowledge of the issues that you were

meeting that there may be a problem associated with pulling the piles period? MR. TREEBY: Asked and answered. Go ahead. A. Yes, there was a person in the meeting. EXAMINATION BY MR. BRUNO: Q. And that was you. A. No. Q. You? I mean Vocovich. A. Vocovich, yes. Q. He knew, but you knew, too. A. I knew, too. Q. So two of you. A. Yes. Q. All right. Now, after the decision had been made to pull the piles. Okay? Did Vocovich indicate to you what should be done to address the problem, or did you indicate to Vocovich what needed to be done to address the problem? MR. TREEBY: Object to the form of the question.

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A. I informed everyone at that meeting that the specs did not address the problem. And Mr. Vocovich concurred, and the rest of everybody else concurred. And they amended -they did a change order, because amendments come before. But a change order came out directing McElwee Brothers to inject bentonite into the voided holes. EXAMINATION BY MR. BRUNO: Q. Okay. Where did that come from; in other words, who made the suggestion that bentonite be put in the voids? A. The Corps mentioned it, I was familiar with it because that's what we've always -- I say, we. Now in this situation, the Corps, when I worked for them, always did with voids, is fill them with bentonite. Q. Okay. All right. So that there's a dialogue, one, there is an underseepage problem created by the removal of piles, there is a decision made, initiated by the Corps to inject bentonite. A. Yes. Q. Okay. All right. Did you do that? A. Yes, we did.
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Q. Good. A. Plus or minus a year. Q. Fair enough. Okay. Now, and over what area, in other words, did you experience this, you know, bentonite coming up out of another hole? A. I say forty feet. We was on one hole and injected the bentonite, and we saw it come up two or three holes down. Q. Okay. All right. Now, what if anything did that say to you as a person who's been schooled about underseepage problems? A. At that time, it said to me that there was conditions underneath the surface that allowed water to flow freely. Why? We didn't know. It prompted us to call in Gore Engineering to do a soil boring right near that area, to check the conditions of the soils and compare it to the plans and specifications. Q. All right. Now, who is the we there? Is that McElwee Brothers or is that the Corps, or is that the result of a collaboration between McElwee and the Corps? A. Strictly McElwee Brothers only. Q. All right. And what did the Gore
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Q. And did that exercise reveal any other problems or issues? A. Yes, it did. Q. And what did that exercise reveal? A. It revealed that we -- during the excavation of the T-wall, which was approximately 40 feet wide, when we injected bentonite in one hole, it traveled underneath the ground surface and came out of another hole, which was totally unanticipated and showed that soils were not homogeneous beneath the surface at that depth. Q. Okay. First of all, what year is this? A. Now, today? Q. No. I know you're testing me, and I'm going to fail. I mean what -A. At that time, that was -MR. TREEBY: You saved me from making the same objection. Thank you, Mr. McElwee. EXAMINATION BY MR. BRUNO: Q. In what year did that occur? A. That occurred in 2002, if my memory serves me correctly.

testing reveal? A. The Gore boring at that location indicated high water contents in the soil stratums, much higher than the plans -Q. And specs. A. -- and specs had illustrated. And that all sort of happened around the same time frame after we filled the holes. We drove some piling, and there was an issue with cracked pilings. Q. Right. A. And it kind of like all happened at the same time, and it got us focusing on some very pertinent issues. Q. Okay. All right. Well, I understand about the cracked piles. Did the Gore borings take place before you encountered cracked piles or afterwards? A. Afterwards. Q. All right. So the bentonite injection and cracked pile issue, were those coexistent? A. Yes. Q. Then let's talk a little bit about the cracked pile issue. Where were you driving piles, underneath the T-wall?

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A. Yes. Q. Okay. I see. Tell us what the issue was with the contracted piles. A. When we initially started driving -McElwee Brothers, we. When McElwee Brothers initially began driving the new piling for the T-wall, new T-wall, I think -- I believe it was a weekend, a Saturday, Mr. Vocovich came out to observe the pile driving operation. And during the first installation of the first pile, the pile went down easy. Now, I didn't know it at the time, because I was in the office. Mr. Vocovich, I saw him observing the pile driving operation. And then he scratched his head and walked off. And I asked him how things were going. And he said, it's okay. But to me, I kind of felt something was going to be behind it. It wasn't his normal reaction. Q. Something was up. A. Something was up. We continued the drive piling, and on the Monday, the following Monday, there was word given back by the quality assurance representative, or the inspector, that there
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the hammer is too heavy, as a response, to try to place blame on why the driving was easy. Q. Sure. A. And then Mr. Vocovich said, you all reviewed the hammer, so if it's too easy, whose fault is it? And then dialogue went around, and then somebody blurted some piling are cracked. And that's what came back to McElwee Brothers from the Corps, that there's anticipation that piles are cracked. And when driving concrete piling, if you get a crack or a fracture, normally what happens, it will break and drive down right inside itself very, very easy. Q. I understand. A. But McElwee Brothers said, well, how did you draw the conclusion? Because we don't see it. We did not see it where it looked like it broke during the process. So immediately, um -- the Corps said they wanted to perform some testing. And McElwee Brothers said, okay, we're going to assist y'all with the testing. Because of my experience, I knew the Corps dealt with GRL, which is a design engineering firm in -- up in
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was a problem with the pile driving and that the Corps had anticipated that piling were cracked. Well, McElwee Brothers said, hey, how do you come to that conclusion that piling were cracked? McElwee Brothers learned later that Mr. Vocovich called a meeting, or the Corps called a meeting, with Design Engineering, Inc., Eustis and their design engineering section to discuss the problem, and Mr. Vocovich asked them, in the meeting, what's the problem, guys? This pile went down too easy. Now, there is an anticipation of, if you know the soil conditions, when you're driving piling that the hammer is going the react a certain way. Q. Exactly. Obviously the more difficult -A. The stiffer the soil, the harder the driving. Q. More hammer hits. A. More hammer hitting. And it was just tapping them in very, very easy. When he asked that question, I think Eustis engineers said,

north America, I can't think of what state they're from -- they're all over, really, and most state agencies and the government utilized their expertise when it comes to subsurface geotechnical analysis and pile driving. So we contacted them and say, hey, y'all need to fly somebody in to do some testing on all of these piling to tell us the status of the piles. And testing was performed and there were a couple of piles that were cracked, but the crack was not a fracture, what they thought. The cracks can potentially happen during the transportation process, you know, hairline cracks, some that may not affect the integrity of the pile as far as its placement and its engineering function. Q. Sure. A. So we agreed that, hey, there were some cracks, but -- McElwee, we, agreed that there were some cracks, but we wanted to hear from the Corps what do you anticipate doing about it, you know? And so the Corps came back and said, well, McElwee, y'all design a new floodwall system for the problem. And that's where we

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were at odds. Because McElwee Brothers took the position and told the Corps we're not a design engineering firm and we're not going to design your floodwall. And I myself was, later on, after this meeting and all of that, in a conversation with the contracting officer. When I mentioned to her at that time -- her name is Mrs. Diane Picou. I said, Ms. Picou, back during Betsy when I was born my aunt was flooded in New Orleans, the Ninth Ward, and she refused to live here now, she lives in Wisconsin. And I said, McElwee Brothers is not going to have its name on any design that could potentially flood the city. And so we decided not to do it, and that's when the Corps said, hey, you're terminated. Not immediately on that telephone conversation, but a couple weeks later. Q. Shortly thereafter. A. Yes. Q. I take it then you had no other underseepage issues with the Corps after that. Right? A. No. They ended at the point. Thank
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Q. I'm going to show you a document which is going to be marked McElwee Exhibit Number 10. This is just -- would this be fair -- are you familiar with this document? Let me ask it that way. (Exhibit 10 was marked for identification and is attached hereto.) A. It's an internal memorandum in the Corps. I'm familiar with the items on the document but not the document itself, because I didn't -- I never saw this as a contractor. EXAMINATION BY MR. TREEBY: Q. As a contractor? A. No, this is an internal memorandum, memorandum through the area engineer for construction division for project management section. This stays with the Corps. That's how I know that. Q. Okay. But your answer was I never saw this as a contractor. What do you mean? A. Well, I worked for the Corps of Engineers, so I saw their memorandums. This particular document is about the contract that I was working on as a contractor. Okay? The Dwyer Road job. I never saw internal
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God. Q. All right. Okay. (Brief recess.) EXAMINATION BY MR. TREEBY: Q. Mr. McElwee, my name is William Treeby. I represent Washington Group International. You and I have talked on the telephone once or twice, and I have a few questions for you. A. Yes. Q. You indicated you have two sons. What are their names? A. Melvin Millard Louis McElwee, Jr., and Millard Louis McElwee. Q. Okay. Is your son who is named junior, what is his age? A. He's 21. Q. Did he work on the project at Dwyer Road? A. No, sir, he didn't. Q. Okay. I believe your testimony is that you worked as an inspector for the Corps of Engineers in the late eighties and early nineties. Is that right? A. That's correct, sir.

memorandums in the Corps. Q. No, this is March 26, 1990. This is when you were an inspector for the Corps. You see that at the top? You see the date at the top? A. Oh, okay. I'm sorry, sir. I'm thinking this had to do with -- yes, sir. Q. And if you would turn over to Page 5 at the bottom which bears Bates number NED-049-000008274, in fact there's a reference to you at the bottom of Paragraph Number 10. Do you see that? A. That's correct, sir. Q. Do you remember this job at all? A. Let me read it for a second if that's okay. Q. I'm not going to have a lot of questions about it. I really don't. I just want to ask a general question. A. Yes. I remember the Seabrook floodwall, yes. I remember -- who was on this? River Road Construction? I remember it. I was on it for just a little while, yes. Q. Would you in your function as an inspector, would you typically -- would you

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typically get a copy of a document like this on a job that you had been the quality control inspector? A. No. Q. Okay. Have you ever been deposed before today? A. Yes. Q. How many times? A. Three? Three to four times. Q. Do you recall what they involved? Could you take them one at a time and tell me what they involved? A. Okay. The first one was when I worked for the Corps of Engineers, I was involved in an accident. Somebody rear-ended me, and my attorney had me -- well, a deposition was held, and my attorney was in the room at the time relative to that. Q. Who was your attorney? A. Lestelle and Lestelle was the firm. Terrence Lestelle was the attorney at that time. Q. Okay. A. Um -- there was another deposition dealing with a bonding company, um -- Great
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course of mediation, private mediation, Tricor's bonding company's attorney wanted to depose me. Q. Okay. A. And it happened. Q. Okay. Was there a lawsuit filed by McElwee Brothers in that matter? A. Yes, in Baton Rouge, in the 19th Judicial District. Q. And when was -- has that been resolved or is it still pending? A. That's been resolved. Just recently resolved. Q. And who was your lawyer? A. Cassandra Butler. Q. Is she in Baton Rouge? A. No. She's in Independence, Louisiana. Q. Okay. Have you ever been a party to litigation in the past? A. Oh, quite a few. Q. Other than the one you've just talked about? A. Quite a few times. Q. Okay. How many times? A. Um -- can I start from the bottom and
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American Insurance, Shields, Mott & Lund. The Corps of Engineers deposed me at that time. Q. Okay. A. Um -- there was a deposition I held relative to negotiations in another project for the, um -- LSU recreational fields. It was concerning, um -- a lien that McElwee Brothers had on the job, and the opposing counsel wanted to deposition me. So I was in that on. And this one. I might be missing something, now, but that's my memory right now. I can tell you that. Q. Okay. This job that there you said McElwee Brothers -- I want to make sure I get the pronunciation right. I've been pronouncing it wrong in my own head, so you'll have to forgive me if I have a lapse. McElwee filed a lien against UNO? A. No. No. McElwee Brothers filed a lien against a project in Baton Rouge in which LSU had some recreational felids installed in an old cow pasture. McElwee was performing work for Tricor Properties in Baton Rouge, and there was some monies owed, and McElwee Brothers filed a lien at the end of the job, and in the

come forward? Q. Sure. Any way. A. Um -- prior to McElwee Brothers coming into existence, I used to run a company Oxy Aqua Filter System, sole proprietor, and I began to do construction in that name. O-X-Y, there was a star, a little star -- asterisk in the middle, Aqua, A-Q-U-A, Filter Systems, Inc. I'm sorry. It wasn't incorporated. It was a sole proprietorship. At that time, I bidded a contract with the State of Louisiana. The state -- I was a licensed contractor at that time, was young, and the state was -- some of the personnel in the state was kind of fascinated that I was a young man with a license to be in construction work, and they yanked that contract from me with no rights to do so. I had a bond for it and bid the job, and they said you don't have a license to do it. So litigation was filed to, um -- get a writ of mandamus against the state to make them comply with their own administrative rules. I was acting in pro se on that. Q. And where was that?

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A. That was in the 19th Judicial District Court. Q. And I assume that was resolved at some point? A. The writ of mandamus was issued to compel the state to do what they were supposed to do, yes. Q. Okay. And the next, coming forward? A. Um -- there was a -- in Vidalia, Louisiana, there was a bond claim on a project with the state for Oxy Aqua at that time. That litigation, I was involved in that one, that was a bonding company suing me, and I had to be present with the suppliers to deal with some, um -- bonding issues in Vidalia. Q. Who was the bonding company? A. Transamerica. Q. And who was the defendant? A. The defendant was everybody, the state, myself, um -- myself meaning Oxy Aqua Filter Systems. Um -- there was two other vendors, River -- Terrell River Services was one. There was another company, I can't think of their name. It's been a while. Q. Okay. Who was your attorney in that
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Q. I think I've identified some of these. Let me show you a document we've marked McElwee Exhibit Number 11 and ask if that is a document you're familiar with in connection with the appeal; of a contract decision against McElwee Brothers and Great American Insurance Company in connection with the Dwyer Road project. (Exhibit 11 was marked for identification and is attached hereto.) A. Yes, sir. EXAMINATION BY MR. TREEBY: Q. Are you familiar with this document? A. I'm familiar to the degree of knowing that the bond company filed a complaint. And I did see a draft of this, but I never saw the filed copy. Q. You say you saw a draft. How did you come to see a draft of it? A. Elizabeth Gordon who works for Shields, Mott & Lund sent the document to me, asked me to review it before she filed it. We had some discussion, but I wasn't -- she was the controlling factor in that. What she put in it afterwards I don't know. All I know is I spoke with her, had some input, and then it was
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matter? A. In that matter I was pro se. Q. Okay. Next one? A. There was -- on this particular -well, I'm saying this particular. McElwee Brothers, dealing with the Corps of Engineers on that project, there was some litigation involved with that. The bonding company was the plaintiff, Great American Insurance, against McElwee Brothers, Try-State -- not Tri-State, but, um -- Ronald Davis, Beverly Davis and myself, in the Eastern District of Louisiana here in New Orleans. There was, um -- a lawsuit filed by the bonding company relative to the Corps of Engineers project. I was involved in that litigation. And in that litigation there was several attorneys, there was one for the joint venture, because Try-State Design Construction Company and McElwee Brothers did a joint venture under that agreement for McElwee Brothers to perform that contract. So there was a joint venture attorney, there was a McElwee Brothers attorney, and I myself acted Pro Se on behalf of myself in that same litigation.

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filed. Q. Was there a legal proceeding, a hearing or anything in connection with that proceeding before the Armed Services Board? A. Yes. There was, um -- several issues brought before the Armed Services Board of Contract Appeals relative to that job concerning the Corps' administration of that contract and refusal to cooperate with the contractor that were filed with the Armed Services Board of Contract Appeals. Q. I'm going to show you a document that we've marked McElwee Exhibit Number 13 and ask you if this is the draft that you saw of the -A. 13? (Exhibit 13 was marked for identification and is attached hereto.) EXAMINATION BY MR. TREEBY: Q. Yes. A. Can I say it's similar? I can't verify and tell you after looking at this for a few seconds that it is the same one other than to compare it with the one that I had, you know what I'm saying, at my office, but it looks similar, yes.

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Q. I don't know if it would help you, but I can tell you the source of this document was not you but was Dr. Bea in his production to us, and the indication was it came from you. And I would ask you to turn -- there's several handwritten notes in it that might help you identify it, um -- I'm not sure, but I have some reason to believe that these may be your handwritten notes. For example, Page -- I see one on Page 14, I see some on Page 15, and I see some on Page 16. A. Okay. Those are my handwritten notes. But you say Dr. Bea. Dr. Bea wasn't involved in this at this point. I don't know about that. I'm not aware of that. Q. Well, he indicated -- his production of this document indicated to us that he got it from you. A. Okay. Fine. Now I can tell you that this is that document. Yes. I can answer that. I didn't know where it came from. I didn't know if you got it from Shields, Mott & Lund and it was a little bit different. I can tell you Dr. Bea gave you this, this is a document that McElwee Brothers saw and is
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A. Sylvia Hurst? That's my wife. My boss. Q. Okay. And Try-State Design Construction Company, Inc., who is that? A. Try-State Design Construction Company is a firm out of Pennsylvania owned by Ronald U. Davis who brought the financing and the bonding to the project at the Dwyer Road. Q. Was Tri-State Design Construction Company, Inc. the other member of the joint venture that did the Dwyer Road project? A. Yes. Q. Okay. There's a request for -- this pleading is a request for temporary restraining order, preliminary and permanent injunction, specific performance and declaratory judgment. In fact, was a preliminary and permanent injunction issued by Judge Duval in this matter? A. A preliminary injunction was issued. A permanent injunction, no. Q. Were there sanctions issued against you personally in this matter for failing to cooperate with Great American Insurance Company?
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familiar with. Q. So you recall providing Dr. Bea with a copy of this draft? A. Dr. Bea gave you this, I can verify that that is my corrections in this document, and that if he got it -- you got it from him, I provided it to him. Q. Okay. And I'm going to show you a document that I think you referred to a minute ago. I've marked it McElwee Exhibit Number 12, which I believe is a copy of the complaint filed against McElwee Brothers and others including you personally in the Eastern District allotted to Judge Duval, actually. (Exhibit 12 was marked for identification and is attached hereto.) A. That is correct. This is the initial documentation submitted to the Court on behalf of the bonding company through Shields, Mott & Lund. EXAMINATION BY MR. TREEBY: Q. Okay. We've identified -- you've identified some of those entities that were named in this suit, but I want to ask you about Sylvia Hurst. Who is Sylvia Hurst?

A. Yes. Q. Now, I don't know if you had completed -- had you completed, as best you could recall, the list of litigation that you had been involved in, or your company had been involved in? A. I hadn't completed it, but I mean, whatever you go over I'll verify whether it was -Q. Well, why don't you complete it, and then -- I may know about some of them and not others, so why don't you complete the list. A. Well, I think between what I said and then what you've just brought out, I think that is basically all of it that I know of at this point. Q. Okay. Do you recall a proceeding brought by one Timothy Miller against McElwee and the Corps of Engineers? A. I am familiar with that. That was brought through an insurance company. The insurance company handled that one. They sent documents to me and I conversated [sic] with them, but I never was involved in it other than to tell them, here are the contract documents

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and our records don't show Mr. Miller being on the project. Purportedly he worked for some firm, a service firm, and got hurt on the job. And, but McElwee Brothers didn't have any records to confirm that he was ever on that job that day and got hurt. We confirmed that he came to the job, but not that he got hurt that day. Q. Do you know what happened in that lawsuit? A. No, sir, I don't. I just know that the, um -- insurance company that was handling it at that time dealt with it. Q. So you don't know the end result of it? A. No, sir, I never researched the documents to find out what the end result was. Q. Do you recall a suit that you and McElwee Brothers, plaintiffs, brought against Ronald Davis and Try-State Design? A. I'm familiar with that one. Q. Tell me what that suit was about. A. That suit was the initial onset of -after the termination for default took place with the Corps of Engineers, McElwee Brothers
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the suit that I mentioned earlier, brought by you and McElwee Brothers against Ronald Davis and Tri-State Design. It's McElwee Exhibit 14. Does that look familiar to you? (Exhibit 14 was marked for identification and is attached hereto.) A. Yes, sir. This is the complaint that was filed in the federal Court by Lori Folse White. Q. I show you a document McElwee Exhibit 15. And I think you've already talked about this. I asked you about the sanctions brought against -- the sanctions order issued by Judge Duval against you. Is that a copy of the Order? (Exhibit 15 was marked for identification and is attached hereto.) A. That's correct. EXAMINATION BY MR. TREEBY: Q. Have you ever paid those sanctions? A. Yes. They were paid. Q. Okay. While we're marking some documents here, Mr. McElwee, when did you first meet with Mr. Bruno to prepare for this deposition?
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sued Mr. Davis and his -- some of his practices he began the utilize at the end of the project that, um -- were not productive for the project. Q. And that suit was brought in 2003. What has happened with that case? A. It was stayed pending arbitration. Q. Did the arbitration take place? A. No, sir. Q. The case still there? A. It's still there. Q. And who is your attorney in that case? A. Roderick White and Lori White. Q. Are you familiar with a matter named Hancock Bank of Louisiana versus McElwee Brothers? A. Yes, I'm familiar with that. Q. And what is that about? A. That was about a, um -- a mortgaged vehicle purchased from Hancock Bank. Q. Is that still pending? A. Not that I know of, no. They turned it from a writ of seizure to a suit against a mortgage note and received a judgment on it. Q. I show you a document, it refers to

A. To prepare for it? Um -- actually, it was a couple of weeks ago. I can't tell you the exact date but I came in and we had a brief conversation, and we was talking about the job I was on with the Corps of Engineers. Q. That's the Dwyer Road job? A. Yes. I mentioned to Mr. Bruno, I said, Mr. Bruno, I had a job with the Corps of Engineers and these are some of the things that took place. And I can't -THE WITNESS: Your name? MR. JOANEN: Scott Joanen. A. Scott said, y'all need to cease this conversation at this moment because we don't want to get into no discussion about too much. But we went to deposition you. And are you willing to go through a deposition? And then -EXAMINATION BY MR. TREEBY: Q. I'm going to show you a document that we've marked McElwee Exhibit Number 16 which you should be familiar with, I believe. This is a copy of a subpoena that we issued to you,

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which shows a return on it. I assume you acknowledge having received this. (Exhibit 16 was marked for identification and is attached hereto.) A. Yes, sir. You and I had a conversation I think about this, with IKON and -- you know, I'm waiting on your response to tell me if you thought was enough or not. (Brief interruption.) EXAMINATION BY MR. TREEBY: Q. And I want to show you a document we have marked McElwee Exhibit 17 and ask you if you can identify that as a written response to the subpoena that you've just identified as Exhibit 16. (Exhibit 17 was marked for identification and is attached hereto.) A. Yes. This is -- yes, this is a written response to that Request for Production of documents. EXAMINATION BY MR. TREEBY: Q. Okay. MR. BRUNO: Did you furnish this to us? THE WITNESS:
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EXAMINATION BY MR. TREEBY: Q. However, proceeding ahead, in order the respond to the specific requests in the subpoena, particularly for documents, what did you do to respond to it? A. Um -- when I got the subpoena, I looked at the request of the subpoena, the definitions, and then exactly what you was asking me for, and I tried to go verbatim to give you an answer to your requests. And I think this particular request you had asked me about information relative to, um -- projects that really were outside the scope of the Dwyer Road project, and I think my response was, generally, I didn't perform a contract in the area where the failures were, but I did perform a contract somewhere else, which was the Dwyer Road project. And to your questions about who I may have talked to on the levee investigation team, I informed you that I talked to, um -Professor Robert Bea, and the documents that I had on hand that I had supplied him and any communications I forwarded it to you. And I also mentioned that there may be other documents that I didn't have in my possession
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Yes, sir. MR. BRUNO: No, no. Mr. Treeby. MR. TREEBY: I don't know. I assume we did, but I forget. It was produced. He filed it in the record, so I would assume that you've got it. MR. BRUNO: Well, no. MR. TREEBY: It's in the -MR. BRUNO: All right. MR. TREEBY: It's in the filings in the case. It's in Pacer. MR. BRUNO: Well, it's also something you were obligated to give to us once you got it. MR. TREEBY: We can talk about that later. If that's so, I certainly will apologize. I doubt that's so.

that he may have that I submitted to him and he would be the best source of all the documents that I had supplied him. Q. I'm going to have to come back to this. I apologize to you. And I will represent to everybody here, apparently the document that I had you identify as the subpoena is incomplete. It gives the definitions but doesn't give the specific documents requested, which we will get and deal with later because I am curious about it. I believe it did ask you for communications with Dr. Bea. Did it not? A. It asked for communications held with any member of the levee -- in fact, my answer -- response to, um -- it asked for any documents -- for any correspondence you've held with any member of the levee investigation team. something to that effect. Not Dr. Bea, per se. But he just happened to be the one that McElwee Brothers had spoken to that was a member of the levee investigation team. And so we -Q. We'll get it before us, because I apologize, I got here without the full

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document. I believe it did asked, actually -it may have asked for levee investigation team but it specifically asked for Dr. Bea. And in any case, you understood in responding to it that we were asking for, including other things, communications with Dr. Bea, is that correct? A. I fully understood that. That's why I submitted you all the E-mails and correspondence that me and Dr. Bea had, and I also mentioned in my response please contact Dr. Bea because there was some time frame that passed between the time I met with him, some documents I actually started getting rid of, and I knew he had copy of them, I said go to Dr. Bea and get them. Q. And in doing your search, did you search your computer at work? A. Yes. Q. At home? A. I don't have a computer at the house. Most of my -- I have a laptop, but nothing on the laptop was relative to conversations with me and Dr. Bea. But the computer at home -- I mean the computer at work, yeah.
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documents to him -- I'd like to explain a little, if I can. Q. I haven't shut you off and don't. Go ahead. A. When the request was made, when I first met with Dr. Bea we brought him file cabinets in conference room in Hammond, in a trailer, and said, hey -- we laid it out for him to take a look at everything. He left but he didn't get copies. So this communication is the only thing that we had as far as communication and documents. And then some documents that we submitted that I don't have on record now, in my possession. When this subpoena was issued, from that time where he met in the conference room and saw everything, some documents had been destroyed, because over time, I mean, I figured it wasn't important. I didn't need it for IRS, we got rid of it. So that's why McElwee Brothers said, Mr. Treeby, check with Dr. Bea. So every document that was in McElwee Brothers' possession, that was in McElwee Brothers' office file cabinet, container, 40-foot storage
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Q. Did you talk to anyone else at your place of -- you know, at McElwee Brothers, to determine if they had responsive documents? A. There was no one else that communicated with Dr. Bea. It was strictly me. Q. Did you search phone records? A. Did I search phone records? Q. Telephone records. A. I didn't go back and see how many times I talked to him on the phone, on the phone bill. That's the only thing I would have. Q. And you didn't look there? A. No. No. Because all I'm going to have is a phone bill telling me I talked to him this time. But what we talked about, I don't keep a record of that. Q. Okay. Did you search paper files both at home and at work? A. Yes. Of all documents that we provided to Dr. Bea, paper files, storage facilities, you know -- I went -- effort -- you know, a tremendous effort going through our storage containers trying to find everything that I remember. Because when I submitted

container, um -- anywhere, I went through every document to see what I had in writing to get it to you. Q. I may be jumping ahead a little bit, but you gave me a response and we're going to go back into the response in a minute. And then subsequently after some further communication that we had telephonically, you gave other documents to IKON. Is that correct? A. Yes. And the way that came about was, this request was for information that I had shared with Dr. Bea and given to Dr. Bea. That IKON disk, that didn't happen at that time after I met with Dr. Bea. This happened while we were talking. I haven't stopped communications with Dr. Bea. So what happened was, I took that information that had been given to him up -- in between November 18th, 2007, and until I produced it to you on that day on the phone, that was that disk. That was new information that had been presented to Dr. Bea. Q. So it's your testimony that the documents on the IKON disk are all documents that were transmitted to Dr. Bea after

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November 19, 2007? A. Yes, sir. So help me God. Q. Now, if you would look at the document I believe we've marked as 17 -A. Yes, sir. Q. -- which is your response, did anyone help you draft this response? A. No, sir, I mean -- we went over the litigations that I've been involved in acting Pro Se, so I've did a quite a bit of research in libraries to look at the books and figure out how to do these type of simple things. Q. Okay. If you would look at Page 3 of 5 of your response -A. Yes, sir. Q. -- Response Number 7, do you see that? A. Yes, sir. Q. It states, McElwee Brothers has not conducted or attempted to conduct excavation along the Industrial Canal 's east bank between Florida and Claiborne Avenues. Is that statement true? A. Yes, sir. Q. Okay. In your response to Number 7, again Tab Number 8, Page 3, you state, McElwee
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Number 7. MR. TREEBY: Right. Number 6. A. That is correct. EXAMINATION BY MR. TREEBY: Q. And in your response on Page 4 to Number 8 you state, McElwee Brothers has not reported underseepage, ponding or pooling of waters along the Industrial Canal's east bank between Florida and Claiborne Avenues. Is that true? A. That is true. I have not performed any work between Florida and Claiborne avenues. Q. Well -A. Only north of there. Q. Yeah. This wasn't really asking about work you had done. I want to make sure we're clear. Is it true when you stated here McElwee Brothers has not reported underseepage, ponding or pooling of waters along the Industrial Canal's east bank between Florida and Claiborne avenues, you've not reported that. A. I'm going to answer you. We don't
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Brothers has not conducted or attempted to conduct excavation along the Industrial Canal 's east bank between -- that's a repeat. Forget that one. A. No. No. You said not. It says has conducted. MR. BRUNO: You took out not. THE WITNESS: He pit in not. A. Take the not out. McElwee Brothers has conducted excavations along the Industrial Canal 's east bank north of Florida and Claiborne Avenues, outside of the parameters in your original request. EXAMINATION BY MR. TREEBY: Q. Okay. I'm sorry. I misread something. That's not what I misread, though. You also state McElwee Brothers has not conducted or attempted to conducted dewatering procedures along the Industrial Canal 's east bank between Florida and Claiborne Avenues. Is that correct? MR. BRUNO: That's Number 6, that's not

have the complete request for production. In that complete request for production, your request was only for information between Florida and Claiborne Avenues. Q. That's all I'm asking about. I'm just quoting your response. I just want to make sure it's true. A. It's true. Q. Okay. That statement that I just read from your response is true. A. So help me God. Q. That's all I want to know. Did you ever perform any work in the East Bank Industrial Area at any time either for the U.S. Corps of Engineers or anyone else? Do you know what the East Bank Industrial Area is? A. Explain that to me, please. Q. Okay. The East Bank Industrial Area I will define as the area between the Florida Avenue bridge and the Claiborne Avenue bridge and between the floodwall and the Industrial Canal. You understand that? MR. LAMBERT: Why don't you point to it on

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Number 6. MR. TREEBY: Hugh, let me conduct -- you do whatever you want when you're asking questions. MR. LAMBERT: I just want to make sure he's clear what you're talking about. MR. TREEBY: I'm being as clear as I can. MR. BRUNO: Isn't that interesting. Because when we had the same problem before, you suggested I was being vague all day long and all day and night. MR. TREEBY: That wasn't really an objection. He was suggesting how I conduct the examination. I'll conduct it the way I want. MR. LAMBERT: Wait. Wait. Don't get ticked off at me. Just stick with Joe. Okay? EXAMINATION BY MR. TREEBY:
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MR. BRUNO: That's Almonaster. A. That's Almonaster. Okay. EXAMINATION BY MR. TREEBY: Q. I'm just trying the help. I'm not trying the confuse you. The Florida Avenue bridge, you understand -- you know where that is? Without regard to the map, do you know where it is? Have you been there? A. I've been there but I'm confused now because what I thought was the Florida Avenue bridge, and maybe it wasn't the Florida Avenue bridge, and I'm thinking between here and the Claiborne. Q. Uh-huh. Well, let's help ourselves geographically. Do you know where the Intracoastal Waterway is to the east of the Industrial Canal? The Intracoastal Waterway. Exactly. You're pointing to the Intracoastal Waterway. And the Intracoastal Waterway intersects with the Industrial Canal. You're familiar with that. A. The Inner Harbor Navigational Canal, yes. Q. And would you agree with me that the
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Q. Okay. Let's get the geographic parameters. We're talk about the Florida Avenue bridge to the north -- no, that's not the Florida Avenue bridge. I'm sorry. That's in fact the old Chef bridge. A. Okay. MR. LAMBERT: Well, there you go. MR. TREEBY: Okay. I understand. This doesn't help at all. MR. BRUNO: Are you testifying now, counsel? A. Wait. Wait. Wait. Sir, if my memory serves me correctly, there is a bridge here. MR. BRUNO: There is. EXAMINATION BY MR. TREEBY: Q. There is a bridge at Florida Avenue. That's true. A. That's correct. Q. And I'm asking -A. You told me this wasn't Florida Avenue. Q. That's not Florida Avenue.

Florida Avenue bridge is south of where the Intracoastal Waterway intersects with the Inner Harbor Navigational Canal? MR. BRUNO: Objection. Leading. A. I'll have to agree. MR. BRUNO: You did the exact same. A. I mean, I'm going to have to agree with you because I don't have anything else to refer to. And I'm actually -- I'm going to have to agree with you for the purposes of this illustration, yes. EXAMINATION BY MR. TREEBY: Q. I mean, if don't know then say you don't know. I'm trying to find out what you know. A. Okay. Q. Where is the Florida Avenue bridge in relation to the Intracoastal Waterway? A. It is south of Interstate 10. I can tell you that. MR. BRUNO: Bill, the original question was -- let's go back because we'll be

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here all week. You and I can stipulate where it is. MR. TREEBY: I want this witness -MR. BRUNO: Can we? MR. TREEBY: No, that's not -- Joe, look -MR. BRUNO: Listen to me. If you want to go off the record and step outside I'll be more than happy to. MR. TREEBY: I know where it is. I know where it is. You know where it is. I want to make sur this witness knows where it is. MR. BRUNO: He said -- it doesn't matter whether he knows where it is. Your question was did he do work at a particular location. Why don't you just point. Okay? You started this. Did you do any work on the, what did you call it, the -- I forgot what he
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A. Okay. I know the area you're talking about. Q. Okay. Have you ever done any work here? A. No, sir. Q. Thank you. In all your inspection work, I'm not talking about work as a contractor now, I'm talking about your work for the Corps of Engineers, when were an inspector for the Corps of Engineers, did you ever inspect any excavations in work in this area that I have just defined for you as the East Bank Industrial Area? A. No. Q. Did you ever do any inspection work in the Lower Ninth Ward? A. Dredging inspection. Q. Dredging inspection? A. Not in the Lower Ninth Ward. It was in the canal. Q. In what canal? A. In the Inner Harbor Navigational Canal. Q. Was that in the Inner Harbor Navigational Canal itself or in the -- what's
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called it. MR. TREEBY: Are you making an objection? MR. BRUNO: I forgot. The service area? The wharfage area? It's so long ago. A. Can I make a statement? MR. BRUNO: You got sideways on your own damned question. A. McElwee Brothers has not performed any work south of Interstate 10. Now, that includes the area that's in your Request for Production of documents. EXAMINATION BY MR. TREEBY: Q. Now, let me -- the East Bank Industrial Area is an area bounded on the north by the Florida Avenue bridge -A. Okay. Q. -- and bounded on the west by the Inner Harbor Navigational Canal. A. Okay. Q. And bounded on the east by the floodwall between the Florida Avenue bridge and the North Claiborne Bridge.

been known as the MRGO connecting to the Inner Harbor Navigation Canal, or both? A. MRGO -- both MRGO and -Q. So you -- and in the dredging work that you inspected in the Inner Harbor Navigational Canal, where in the Inner Harbor Navigational Canal did you do that inspection of dredging? A. Right near the Mississippi River where it enters the Inner Harbor Navigational Canal, and then from -- I'm pointing here. Approximately here on out. MR. TREEBY: And Joe, you may want to look where he's pointing when he says from here on out. EXAMINATION BY MR. TREEBY: Q. You're painting pointing to an area somewhere in the Intracoastal Waterway on out to the east, right? A. Yes. Q. Do you know Mr. Shields? A. Yes, I do. Q. And what is your relationship to Mr. Shields?

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A. Mr. Shields was the attorney for -- if we're talking about the same Sonny Shields. Q. Yeah. Lloyd Sonny Shields. A. Lloyd Sonny Shields. He was the attorney for Great American Insurance Company. Q. Okay. If you know, what is SELA? S-E-L-A. A. Southeastern Louisiana, um -- I can't tell you all the rest of it. Q. Did you understand that the Dwyer discharge tubes and canal project that you worked on was a SELA Project? A. Yes. And SELA was an area that one contracting officer administrator supervised for construction, you know. And in New Orleans it was SELA. And in Jefferson Parish it was a different title. Q. I show you a document which we will mark McElwee Exhibit 18. Are you familiar with that document? (Exhibit 18 was marked for identification and is attached hereto.) A. Yes. This appears to be an extrapolation of some of the plans for the bid used on the Dwyer Road discharge tube.
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modifications impacted the contract. Usually every "mod" would tell you what section it impacted. But this is the original bid packet document. Q. For dewatering? A. For dewatering, yes. Q. What was the division of responsibility between McElwee Brothers and Tri-State? A. As I mentioned earlier, Tri-State provided the financing and the bonding, McElwee Brothers did the execution of the work. That was the division of responsibility as per the U.S. Small Business Administration 's 8A program. The U.S. Small Business Administration would always assure that contractors were not fronts for different organizations. So McElwee Brothers had to be in control and perform specific parts of the contract. (Brief recess.) EXAMINATION BY MR. TREEBY: Q. Mr. McElwee, I show you a document we marked McElwee Exhibit Number 19 and ask you if can identify that document.
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Q. Actually, the complete contract that McElwee Brothers or the joint venture that it was engaged in for the Dwyer Road project is considerably longer than this document, is it not? A. Oh, much bigger. Yeah. It's almost two inches thick. Q. But this is a part of it, is it not? A. This is portions of it, yes. Q. Is this the part of it that deals with the dewatering section of the job? A. This is part of that. That's not -it's not complete. Because in part of it there was a change orders that's a part of this, and it's not here. Q. So there was a change order to the dewatering section, is that what you're saying? A. There was a change order relative to -- I believe it related to some parts of it. I believe it was in this section when we were extrapolating -- extracting the piles and we had to inject bentonite. I don't know if it was this section or another section. I hate to answer and say this is complete until I was able to look at what

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(Exhibit 19 was marked for identification and is attached hereto.) A. Yes, sir, this appears to be a copy of the joint venture agreement initially submitted to the U.S. Small Business Administration for the project. As I was saying, this appears to be the joint venture agreement initially submitted to the U.S. Small Business Administration for the Dwyer Road project between McElwee Brothers and Tri-State at the time. (Off the record.) EXAMINATION BY MR. TREEBY: Q. Can you identify that document? A. Yes, sir. Again, that's the joint venture agreement. Looks like the original submission that was given to the U.S. Small Business Administration for the Dwyer Road project in which McElwee and Tri-State were involved. Q. Okay. And does this agreement spell out the division of responsibility that you described earlier in your testimony? A. Yes, sir. In fact, I'll find it for you. If we look at Page 9 of 33 --

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Q. Uh-huh. A. -- we talk about percentages of ownership. 51 percent, 49 percent Tri-State Design. If we go further down in management, we talk about Paragraph 3, Management 3.1, McElwee is the managing venturer of the joint venture and McElwee shall appointment one of its employees as the project manager with the duties and responsibilities needed for performance of this contract. MR. LAMBERT: Slow down a little bit. EXAMINATION BY MR. TREEBY: Q. Let me just ask you to do this: This exhibit will be part of the record so I don't really need for you to read it. So you're saying -- so far you've said that what describes the separation is the 51/49 percent and the management provision on Page 9 of 33. Is that right? A. Yes, sir. Q. Is there anything else that differentiates the responsibility of the parties? And just refer to the paragraph and we can then look at it.
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A. In the joint venture agreement, there's everything. Q. I meant in the joint venture agreement. Have you pointed -- I'm sorry. Have you pointed us to all the paragraphs in the joint venture agreement that would differentiate the responsibilities between the two members of the joint venture? A. I pointed some of it. On Page 5 of 33 there is some more of it. Q. Okay. A. Page 6 of 33 there's some more of it. Q. Okay. A. It talks about the purpose of the joint venture agreement, whereas McElwee lacks the following, bonding capacity to obtain this side contract, 100 percent contract financial ability. Q. Okay. A. And then it spells out McElwee has the capacity to perform -Q. I got you. A. -- Items A through V. Q. Page 6?
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A. Okay. If you would look at Page -Appendix A, it comes after Page 29 of 33, it's a chart that shows task assignment and responsibility. If you will notice Item Number 1, bonding by Tri-State, Company B. Q. Uh-huh. A. Item 2, financial. Q. Right. I can see -- I see the document. I thought you had earlier said that Tri-State had the financial responsibility for this job. A. When you say financial responsibility, yes, they were bringing finance to the joint venture. Finances. Q. And this would indicate that so was McElwee; is that right? A. McElwee brought a little, yes -Q. Okay. A. -- to initiate the -Q. Are there any other provisions in the contract that would spell out the differing responsibilities between the McElwee Brothers and Tri-State? A. In the contract, there's nothing. Q. Okay.

A. Yes, sir. Page 6. And it talks about the benefits of being in the joint venture. Q. Okay. Was the Dyer Road pumping -the Dwyer Road job that we've described, is it fairly close to the intersection of Dwyer Road, or where Dwyer Road would have intersected with Jourdan? A. That is correct. Q. Okay. It was reasonably close to that location? A. That is the location. Q. That is the location. Okay. Was this the largest dollar value project that you or McElwee Brothers ever worked on? A. Yes. Q. Now, as part of your contract on the Dwyer Road project, were you required to design, furnish, install, operate and then remove a dewatering system? A. Yes. That was part of the contract documents. It was in the contract. Q. How did McElwee Brothers go about designing the dewatering plan? A. I will reiterate what I mentioned

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earlier. We contacted Mr. J. Michael Dixon who then -- he's deceased now. I say who was, because his license never was taken away, but edges deceased -- was a registered professional civil engineer in the state of Louisiana. That was a requirement in the contract that we acquire somebody that had those credentials to perform the design. And McElwee Brothers worked with Mr. Dixon to provide him with the field data, the input, of equipment suppliers and everything for design of a system. So. Q. And Mr. Dixon is deceased at this point. A. Yes, sir. Q. And I believe your testimony earlier has indicated that either the joint venture or the Corps -- let me just ask, who hired Eustis Engineering, was it the joint venture or was it the Corps? A. Eustis was hired by Design Engineering, Inc. That's my understanding of it. Design Engineering, Inc. was the consultants to the Corps. Q. Okay. And who hired Gore? A. McElwee Brothers.
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A. May I ask, would you be, I guess, more specific? Because there was different phases of the construction site, different situations and problems that occurred at different times. If you want me to talk in general about the whole job, I will, but each -- McElwee Brothers divided the entire project I think into five phases, Phase I, Phase 2, Phase III, Phase IA, and Phase IB, in the construction process. When it divided it up, each dewatering scenario was different for each one. Phase I, which was the box culvert canal section that we saw in the photos, it was a complete TRS system, meaning complete sheet piling driven to enclose a certain area. It was completely cut off. When we got ready to deal with Phase 4, the tubes went through that phase, so we couldn't always keep it completely cut off. So we had to do different things to accommodate. So the dewatering system was changed at certain times. That's why I'm mentioning that. I'm trying to give you a picture. Q. Well -A. And at the navigational -- once we had
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Q. And would it be fair to say that the plans or the -- the plans for dewatering the site, for carrying out your responsibility to design, furnish, install, operate and then remove a dewatering system, utilized information that Eustis Engineering provided and utilized information later that Gore provided? A. McElwee Brothers' dewatering system utilized information provided by the Corps of Engineers. Q. Through -- some of that was Eustis. I was asking about Eustis. A. And Eustis, yes. Q. I was just specifically asking, did the dewatering system that was designed, furnished, installed, and that whole part of the project, did it utilize the Eustis soils analysis? A. Yes. Q. Did it also then later utilize the Gore soils analysis? A. Yes. Q. How would you describe the progress of the dewatering of the site?

Phase I in and we got ready to deal with the navigational canal end, the discharge end, it could not be completely boxed off so we had it U-shaped, sort of, towards the floodwall, and we had to install dewatering tubes on the open end to drop the water table such that a lot of water wouldn't be in the work area. Q. Well, would it be fair to say that the dewatering of the site went slowly at first but that in fact the dewatering was able to -- you were able to dewater the site sufficiently? A. Went slowly at first? I'm confused. It went during a normal process to us. Q. Was it delayed at all? Let me ask it that way. Did the dewatering process slow you down from your original timetable for the job? A. No. It was just part of the process. It didn't slow us down. It was part of the process. We knew we had to do it. It was in the plans and specs, and we were just implementing. But no, it wasn't a curve ball, something we didn't anticipate, other than whenever we ran into the, what, pulling of the piles and we had problems in that situation. Q. One of the complaints that the Corps

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levied, and one of the reasons it issued a default letter and canceled the contract for default, was that there were delays that should not have occurred on this job. Isn't that correct? A. I don't know that to be one of the three reasons that's mentioned in that default letter. I'd have to see that termination for default letter. I don't remember that being one of them. I remember three reasons, but -Q. I show you this document that we have marked McElwee Exhibit 20 which is a letter dated June 24, 2003, that attaches a form which is described as Amendment of Solicitation/Modification of Contract. I believe that, taken together, is the default letter. Can I you identify that? (Exhibit 20 was marked for identification and is attached hereto.) A. Yes. This is the termination for default -- it's in four, and on Page -- it says 2 of 2 on the top, but it's actually the third page in that stack. It talks about the acts or omissions constituting a default, and there are three items. And, um -- okay. I see on Item B
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what it says, and this is Item B on Page 2 of 2, acts or omissions constituting the default: Repeated failure to manage the contract performance, including the contractor's ill-defined lines of authority, inconsistencies between the roles and the individuals of the joint venture performing those roles, and ineffective use of resources resulting in a delay to the overall completion of the contract. That is one of the reasons, one of the acts of omissions that the Corps stated as a default -MR. JOANEN: Objection. Leading. A. Yes. EXAMINATION BY MR. TREEBY: Q. Is that correct? A. That is what the Corps mentioned. That's what they said. Q. And in fact, your lawsuit against your joint venturer alluded to some of these problems of inconsistencies between the roles and individuals of the joint venture performing the roles, right?
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where at the end of that sentence it says resulting in a delay or to the overall completion of the project. EXAMINATION BY MR. TREEBY: Q. The contract. A. Yes. And I -- to answer your question, that's mentioned there. Can I read the whole -Q. Well, you don't need to read it aloud. I'm just asking, does this confirm what I believed to be true, that one of the reasons for the default letter was work that you did resulted in the delay to the overall completion of the project? A. That's not a true statement. Q. Well, is that what the letter says? A. The later says repeated failure to manage the contract performance including the contractors, ill-defined lines of authority. It has nothing to do with the performance of the work. It's that was the reason, they said there was a delay. And if you keep reading it gets down to resulting in delays. Q. Right. For the record, we'll just --

A. That is accurate. That's correct. Q. Okay. So you even complained to your joint venturer that his -- some of his -- some of the things you alleged he had not done appropriately were the cause of this default letter. A. That's correct. Q. Okay. I show you a document we have marked McElwee Exhibit Number 21 and ask if you can identify that document. (Exhibit 21 was marked for identification and is attached hereto.) A. Yes, sir, this appears to be minutes of a biweekly status submittal meeting held on March the 6th, 2002. As I mentioned earlier, we used to hold biweekly meetings with the Corps to update them on the project. Q. And would you typically then get a copy of these minutes? A. Yes, normally after -- prior to the next meeting. Or even sometimes at the next meeting, yes. I got copies but had no input. Q. If you would look at the last page of that exhibit which bears Bates Number JV 005966, the last item, Number 4, this indicated

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that -- by way, who is Mr. Roth? A. Tim Roth was the administrative contracting officer on the project. He worked for the contracting office. Q. Of the Corps? A. Yes. Q. And it indicated that he had explained to you that the plan that you had submitted on February 19, 2002, did not properly address how and in what time frame the temporary protection would be installed and informed you that the plan was unacceptable and that you agreed to revise the plan and resubmit it by April 1st. Was that some indication that the Corps felt that this project was being unduly delayed at that point? MR. JOANEN: Objection. Calls for speculation. A. No. No. EXAMINATION BY MR. TREEBY: Q. Okay. A. That was just merely a comment on, um -- review of a planned temporary -- that was review of the initial flood protection plan.
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that you stated you felt additional information was needed to complete the dewatering design? A. Yes, sir. Q. And the Corps responded that you had sufficient information to design the dewatering plan, is that right? A. That's their response. Q. Do you recall this was a bone of contention in the progress of the job? A. It was a bone of contention at that point. In fact, the following sentence behind that, the contractor acknowledged this and stated that he would perform additional soil borings when the piezometers were installed. So -Q. Excuse me. I didn't mean to interrupt you. Go ahead. A. So I agreed that they had provided information, but whether it was enough information I never made any concurrence to that. Q. Were those additional soil borings the borings that Gore did? A. Yes. Q. I show you a document we've marked
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His comments on it. It didn't mean that it delayed the job, it was just that, hey, you need to correct these things and then we'll look at it again. Q. I'm going to show you a document that we've marked McElwee Exhibit 22 which is a document that has a date at the top of it of February 1, 2002 bearing Bates Number GA/COOO171 through 173. This appears to be a memorandum from Timothy Roth described here as the resident engineer. You described him as something in the contracting office? (Exhibit 22 was marked for identification and is attached hereto.) A. Yes, sir. If you look at the, um -Exhibit 21, and look at Page JV -- the last page, JV 005966, his title was the administrative contracting officer. That's what he signed as on that page. EXAMINATION BY MR. TREEBY: Q. Was he also the resident engineer? A. Yes, he was. Q. Okay. If you would look at the second page of this exhibit, in Number 4 where it says the dewatering plan was discussed indicated

McElwee Exhibit 23 which is a April 29, 2002, four-paged document, again signed by Timothy Roth. And again on this occasion he appears at the end as administrative contracting officer and in the beginning as resident engineer. And it indicates that this letter constitutes the formal minutes of a biweekly status and submittal meeting that was on April the 11th, 2002. And this would indicate that by this time, at least, the Corps indicated that nothing encountered in the project excused the delays that they believed were talking place. Isn't that right? (Exhibit 23 was marked for identification and is attached hereto.) A. May I have some time to digest? EXAMINATION BY MR. TREEBY: Q. Yes. A. Okay, please ask your question again. Q. Yes. Would not these minutes indicate that by this time the Corps believed that nothing encountered in the project excused the delays they believed were taking place? MR. JOANEN: Objection. Calls for

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speculation. A. This letter illustrates a bone of contention about delays and illustrates McElwee 's explanation of where the project was, line item by line item, and the Corps' refusal to acknowledge those delays. EXAMINATION BY MR. TREEBY: Q. Okay. I show you a document we have marked McElwee Exhibit 24 which is a letter of April 17, 2002. This one is addressed to McElwee Brothers, Inc. and Tri-State Design, a Joint Venture, and it indicated, did it not, that the Corps believed that your overall performance on the contract has been unsatisfactory to date? Is that correct? (Exhibit 24 was marked for identification and is attached hereto.) A. It indicates what Mr. Tim Roth believed to be necessary to begin a paper trail of what he was intending to do, if you're really asking me, yes. EXAMINATION BY MR. TREEBY: Q. Well, let's just deal with what -without trying to get into people's heads about
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in the ASPCA, so therefore it showed that when the Corps paid $1.9 million to the bonding company relative to delays that some of that was just what little it bit of hog wash. Q. Well, and the bonding company similarly got judgment against you, did it not? A. For the excess amount that was n't paid on the project, that's correct. Q. How much was that? A. That was 1.9 million. Q. $1.9 million judgment against you? A. That's correct. Q. Your company? And that was because the Corps had determined that -- and it played out in various appeals to the Armed Services Contract Board, as well, that you had not done the job satisfactorily, is that correct? A. I'm not -- I can't confer with you on that. Not at all. Q. Well, that's what was determined in the process, is it not? A. I cannot agree with you on that. I don't know that. Q. I thought you just admitted that a $1.9 judgment was rendered against you for
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what they really intended, it indicates that the quality control for the job is marginal, is that correct? A. That's what he says there. Q. It indicates that timely performance was unsatisfactory, is that correct? A. That's what he said there. Q. It indicates that effectiveness of management was unsatisfactory. A. That's what said there. Q. And that compliance with safety standard was marginal, is that correct? A. That's what he said there. Q. And he goes on to explain why he takes that position, and that was just a summary at the beginning but then on the subsequent pages, with a suitable letter A, B, C, D, E, indicates why they believe that's correct. Is that right? A. That's what he said there. Q. Okay. I'm sure this didn't make you happy at the time and still doesn't make you happy. Is that correct? A. Well, actually, the bonding company wound up picking up, you know, all the appeals

unsatisfactory performance. A. What I admitted to you is that the Corps negotiated with the bonding company and wound up paying the bonding company $1.9 million for additional work performed on the project and delays involved with it; however, after the bonding company received remaining funds on the contract, plus the $1.9 million, it was still out $1.9 million in cost, and that is where the judgment against me came, not -- the two $1.9 million are separate issues. Q. Those documents -- and we can go through them, but I think there was a disagreement, and you talked about it in your testimony in answer to Mr. Bruno 's questions. There was a disagreement between you and the Corps about whether the pile should be cut off or pulled; is that correct? A. That's correct. Q. And some of the concern for not cutting them off had to do with damaging existing pipes, isn't that correct? A. That's incorrect. Q. That's incorrect? Had nothing to do

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with it? A. Nothing to do with it. Q. Okay. But in any case, you ultimately agreed to comply under protest with the instructions to pull the piles. A. That is correct. Q. And you later complained, did you not -- McElwee Brothers complained in the spring of 2003 that the pulling of the sheet piles, the sheet piles, and the subsequent filling of the voids with bentonite slurry caused greater difficulty dewatering the site; is that correct? A. Pulling of -Q. Sheet piles. A. I'm -- I'm lost because -- we're talking about one situation. We pulled the concrete piles. Q. Right. A. And we pulled -Q. Is that what was filled with bentonite slurry? A. That's correct. Q. But didn't you, or McElwee Brothers which I assume is you -- is that correct?
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was used for, I believe it was concerning the Armed Services Board of Contracting Appeals. Q. Yeah, this was March 4, 2005, is the date of this transcript of testimony. A. Yes. Q. I'm trying to get the whole transcript because I'm missing a page here. A. Yes. I remember -MR. BRUNO: Where did that come from? The depo. MR. TREEBY: From the -- from this proceeding. MR. BRUNO: Well, was it produced by somebody? Was it produced by the Corps? We didn't get a copy. MR. TREEBY: You didn't ask for a copy. MR. BRUNO: Oh, man. Come on. Our discovery requests are so broad -- come on, Bill. MR. TREEBY: You can't go by that kind of a
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A. That's correct. Q. Okay -- complain that filling those voids with bentonite slurry caused greater difficulty with dewatering the site? A. I can't -- I can't tie those two together. I know that pulling the piles caused difficulty -- pulling the piles -- McElwee Brothers had a complaint about pulling the existing piles and the impact that pulling those existing piles and filing them with bentonite, how it degraded the already poor foundation such that when we drove the new piling the anticipated results of driving with a certain size hammer were impacted. We probably could have reduced the size of the hammer with less soil friction on these piles. I remember that being the bone of contention on it. But not dewatering problems because of the bentonite. Q. Do you recall testifying about this in the appeal at the government contract board, the Armed Services Contract Board, testifying about this issue of the bentonite slurry? A. I can verify that a deposition was taken by the Corps of Engineers of me. What it

general statement. MR. BRUNO: How about this: You know that you have an obligation to continually update your responses. Come on. If you got them from the Corps, the Corps has an obligation to update its responses. I know you didn't have them. MR. TREEBY: I don't know what you asked the Corps for, Joe. I don't know that. MR. BRUNO: Well, all I'm asking -MR. TREEBY: I got it from the Corps. MR. BRUNO: You got it from the Corps. MR. TREEBY: Yes. MR. LEVINE: You want a copy? MR. BRUNO: Please. Is there anything else that you

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all produced to WGI? I guess I need to know that. MR. TREEBY: Yes. Yes. The answer is yes. MR. LEVINE: We have to seasonally update these things. MR. BRUNO: I understand that. But would you agree that this is seasonal since the guy is being deposed? Come on. MR. LEVINE: There's stuff here that you guys used today that wasn't produced to me until today, so -MR. BRUNO: No. It was produced to you the same day it was produced to me. Absolutely. MR. LEVINE: I didn't actually get a copy until today. (Brief recess.) EXAMINATION BY MR. TREEBY: Q. Okay. I'm going to try to make my
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And your answer is, when the joint venture received this deficiency, I recall the dewatering system pumps I think were being exchanged out for maintenance, and we also at that time had a problem -- I say we also, we as in the joint venture and the Corps of Engineers had a problem with the piezometers in this area. As I mentioned earlier, the bentonite from pulling the piles flowed in the ground, and we noticed that after we pulled the piles one of our piezometers wasn't functioning properly, it kept reading at high water levels. So from an inspector's point of view, the deficiency was written stating we weren't complying with the contract, without looking at a technical and engineering review of the whole situation, but the joint venture signed the deficiency and said, hey, we'll fix the problem, close quote. Obviously, you're talking about the notice that you got from the Corps, and that you at least at the time in handwriting signed off yes, we understand and we'll fix it. A. Yes, sir. Q. Okay. And as I -- my limited
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question a little more intelligible, Mr. McElwee. I was asking about the bentonite causing the problem for dewatering. And I'm sure that was a poor question on my part. But I'm going to read to you an answer that you gave on Page 285 of the transcript that was taken on March 4th, 2005, Volume 2, actually, and let me just read it to you, and then if you need -- because you may be able to answer the question. And if you need to look at this, then we can. MR. BRUNO: Well, he needs to see the question for sure. A. I want to -- remember what frame of mind I was in at that time. MR. BRUNO: Page? EXAMINATION BY MR. TREEBY: Q. Page 284 and 85. Here's the question and here's the answer, and you can follow along if you wish, beginning at Line 23 on Page 284: And the notice of deficiency, Number 4, which is on the third page, would you tell us what you recall about that notice?

understanding, the problem was caused because a piezometer was reading as though there were high water flows -A. Yes. Q. -- is that correct? A. That's correct. Q. That's what I meant when I said -when I asked you earlier that the pulling of the sheet piles and the filling of the voids with bentonite caused a difficulty with the dewatering. The dewatering issue. Right? A. Caused a problem. I'd like to define the problem it caused. Only reading that piezometer, meaning that the bentonite flowed and probably stopped that piezometer up, because it traveled through from one area to the other. It didn't mean it caused a problem with dewatering the hole. With the measuring device. It just clogged up a. Q. Pipe. But the purpose of the piezometer was to address dewatering. A. To read water levels. Not -Q. Right, to read water levels. A. Yes. Q. And if it was -- and I understand it

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may have been a bad reading. A. Bad reading. Q. Okay. But the indication was that there was a dewatering problem, and you're saying that that probably was a false indication. MR. BRUNO: Objection. Objection. That's not at all what he means. MR. TREEBY: That's fine, Joe. I've got your objection. I'm trying to understand this. A. There was a problem reading the measuring device because the measuring device was stopped up, not with the dewatering. The pumps were steady working, the water levels were lower on other piezometers, they read lower levels, that one had a high level. Q. Uh-huh. A. But in that small area, if you got four piezometers on each corner, one on each corner and one is reading a high water level and the other three are not, there is a problem with that straw, not a problem with the
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it appears to be two letters, one dated March 18, 2003, one dated March 19, 2003, both of them to you, from J. Michael Dixon, both of them the subject is jacking and bore dewater. And in both of these letters by Mr. Dixon, he is indicating, is he not, that there is an effective dewatering of this location? (Exhibit 25 was marked for identification and is attached hereto.) A. In the first page he's indicating that the dewatering system is working properly. In fact, he says, in his first paragraph, last sentence, this indicates that this sand stratum is in a drawdown condition. Q. All right. That's what I thought I said. You're agreeing. MR. BRUNO: No. You do not say that. EXAMINATION BY MR. TREEBY: Q. What I asked was, in both of these letters, he is indicating, is he not, that there is an effective dewatering of this location? A. Sir, I'm just making it clear that he's saying there is an effective drawdown,
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dewatering. Am I making sense? Q. I understand, but there would be -because of the problem with the piezometer, assuming that's what it was, it was reading as though there was a dewatering problem. MR. BRUNO: Objection to form. EXAMINATION BY MR. TREEBY: Q. Is that correct? A. That one piezometer was reading high, it wasn't reading accurately, yes. Q. And in fact -- and I'm showing you a document we've marked McElwee Exhibit 26, which consists of two letters, they bear two different Bates numbers, actually. One Bates number is -- I'm sorry. Excuse me. THE WITNESS: Mr. Treeby, Exhibit 25, which one is it? MR. TREEBY: I don't know. Maybe we skipped it. EXAMINATION BY MR. TREEBY: Q. Okay. We'll make the one I'm about to do 25. Just rewrite it. Anyway, I show you --

it's working properly. Q. Okay. That's all I was trying to say. I thought you were disagreeing with me. A. No, sir. I'm just telling you what his letters say to me. Mr. Treeby, I want to -- the second page of this same exhibit, I wanted to mention something that we just talked about, where he talks about that trapped water in that second paragraph, in the second letter he's reemphasizing the trapped water situation when we talked about the bentonite traveling and trapping the water. Q. Uh-huh. A. And the piezometer that was reading wrong. Q. Right. Was there in fact, Mr. McElwee, a schedule that the Corps promulgated or that you had given the Corps and they agreed to for the completion of your work on this job? Was there ever a schedule? A. There were schedules submitted to the Corps, but the Corps would never agree with any of schedules in the entire project. Q. They took the position that the

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project was several months behind schedule when they issued their default letter; isn't that correct? A. They took that position from the beginning of the project all the way to the end. Q. Are you saying that McElwee Brothers did not agree that you were behind schedule? A. McElwee Brothers never agreed, and illustrated it in several pieces of documentation that it was not behind schedule, because whenever there were claims, there were claims submitted to the Corps, McElwee Brothers waited for responses, the Corps never responded. The Corps wouldn't answer certain questions, the Corps would not approve certain submittals, on time, and they never would admit to their delinquency in the project. They just kept saying McElwee Brothers was behind schedule. Q. Did McElwee Brothers encounter any safety problems on the project? A. Yes, McElwee Brothers did have some safety issue on the project. Q. Did the Corps complain to McElwee
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McElwee Exhibit Number 26. Were those safety issues that were being addressed in this April 3rd, 2002 memorandum from Mr. Roth to McElwee Brothers, or were those quality control issues? (Exhibit 26 was marked for identification and is attached hereto.) A. Actually, they were quality control issues, quality control issues being presented by the Corps as safety issues. And the reason I say that is because Mr. J. Michael Dixon was requested to review this particular notice and give his assessment. And then he went down the list, he said there's no safety problems concerned. My design and my system can support everything that you're doing, and I don't know why they have these problems. In fact, Mr. Dixon said, Melvin, I don't understand why the Corps is nit picking you with such little stuff, they don't do this on other people's jobs. EXAMINATION BY MR. TREEBY: Q. And this is the Mr. Dixon who is deceased at this point? A. Yes. He has a response to this
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Brothers about the safety problems on the site? A. I would have to know particular complaints. The reason I'm answering that question that way is we had a gentleman that was involved in an accident on the project. I'm referring to that. Two gentlemen. The Corps -- prior to one of the gentleman having that accident, the day before the Corps came out and expressed a concern that the gentlemen was not wearing a safety harness. And when the Corps of Engineers safety guy mentioned that to me in particular, I instructed the superintendent to write the gentlemen up immediately. And the superintendent had some qualms about doing so, but I told him that McElwee Brothers' policy is whenever an official comes from the Corps of Engineers and notifies me of a problem on the job with safety, it is our duty and responsibility to issue a warning to that employee. And just so happened the next day that same employee did not wear a harness and fell inside of an excavated hole 25 feet down on his back on top of a couple of piles. Q. I show you a document we are marking

particular deficiency. MR. BRUNO: A writing? A. A written response, yes. MR. BRUNO: A written response. EXAMINATION BY MR. TREEBY: Q. Do you have a written response? A. Sir, I'd have to verify. I hate to say yeah, I do, and then I look in the file and it's something I threw away. But I may can place my hand on that response. (Off the record.) THE WITNESS: Those annotations are joint venture numbers, and GAIC is Great American Insurance Company, documents they had. MR. BRUNO: Okay. So that's the other litigation. EXAMINATION BY MR. TREEBY: Q. I show you a document marked McElwee Exhibit 27. This letter of January 7, 2003 to you from the Corps has in it, among other

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things, safety concerns, does it not? (Exhibit 27 was marked for identification and is attached hereto.) A. Um -- would you point out -EXAMINATION BY MR. TREEBY: Q. Yeah. Like at the bottom of the first page. A. Okay, I can verify that this document does state that. This unsigned document does state that, yes. Q. Do you recall this? I thought you had recalled earlier there were safety concerns that were brought up by the Corps. A. I did on other documents that I could verify, that I saw myself. Q. So you don't believe this document accurately sets forth safety concerns? A. I'm saying this document here says that. Q. I understand. But are you saying this -- are you denying that this was ever given to you? That's what I'm trying to find out. You said it's unsigned. A. Yeah. It is. And the only way I can verify that it's something I received is -Page 295

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stuff like that, I only remember one area, which was Phase 4, that's why I say I don't know these. Q. Okay. Let me ask you this: Who was Ron Leslie? A. Ron Leslie? There was Ross Leslie. Q. Ross Leslie. Thank you. A. Ross Leslie was project manager for Tri-State Design Construction Company. Q. Did you have difficulties with him? A. Very much so. Q. And who was Steve Faluti? A. Steve Falati was quality assurance representative for the government. He was the on-site representative. Q. Did you have any problems with him? A. Did I have any problems? I had problems relative to communications process and lines of authority, you know, that we looked at earlier that were defined during the partnering meeting and then the Corps decided that, hey, they didn't no longer want to play along with it, and so they started communicating with Ross Leslie who was not an authorized person to speak on behalf of the joint venture. That's
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mostly everything I received was signed. You understand what I'm saying? Q. Uh-huh. And if you would turn to the second page of this exhibit which is unsigned, there's -- and this is essentially the minutes of a biweekly status and submittal meeting, right? A. That's correct. Q. Okay. And on the first full paragraph on the second page talks about the problems with the current dewatering situation on the job site, is that right? A. That's what it says, yes -Q. Okay. A. -- in that particular -Q. Excuse me. A. This particular paragraph I think goes along with Mr. Dixon 's Exhibit Number 25, Page 2. Q. What's the date of Mr. Dixon 's letter? A. Um -- March 19, 2003. Q. Right. A. Okay. But, why -- the comment relative to piezometers not reading right and

where some of the problems began to come in at. Yes. That's when I had problems with Mr. Falati. Q. You indicated -- in fact, we have already put this in evidence -- that draft of the complaint to the contracting board. Could you find that? MR. BRUNO: Let me object to form. You've not put anything into evidence. You've attached to this deposition certain documents. They're not in evidence. MR. TREEBY: Whatever. MR. BRUNO: Whatever? MR. TREEBY: Joe, this witness has identified it, that's all. MR. BRUNO: Thank you. MR. TREEBY: We don't have a judge here putting things in evidence.

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MR. BRUNO: Yeah, but then, don't say they're in evidence. MR. TREEBY: Okay. Whatever. MR. BRUNO: Is that difficult? A. The complaint of the -EXAMINATION BY MR. TREEBY: Q. Yeah, the draft complaint that you said you had your handwritten note on. You recall that? I just don't remember the exhibit number. Perhaps you can find it for me. A. I believe it's, um -- Exhibit 13. Q. Thank you. A. Yes, sir. Q. And let me see if I can find it. If you would look at Paragraph 34 of this draft of the complaint this was filed in McElwee Brothers' appeal of the default determination by the contract officer. This was the appeal of that determination before the Armed Services Board of Contract Appeals. In Paragraph 34 there's a statement here that -- in the second sentence -- I don't know, this sentence
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McElwee Brothers? A. Ellis Jackson worked for McElwee Brothers, yes. Q. Okay. In other words, you and I guess Mr. Jackson, whoever commissioned Gore, believed that the soil conditions within the work site would be more properly determined by soil borings taken within the work site. A. They must be somewhere in close proximity, at least a hundred feet. Q. Okay. A. You know, the Corps uses -- the Corps, in the past, unless it's changed, has stated that borings normally represent I think 200 feet. In the radius of that boring. Q. Okay. So you believed, did you not, and still believe, from what you're saying, that soil conditions are individualized enough from location to location that the Eustis soil borings 165 feet away from your excavation at the Dwyer Road job site were not representative of the soil conditions at the excavation site. A. That is true. Q. Now, you've identified, it's already in evidence, I was going to give it to you, but
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beginning however, hindsight reveals -Do you see that sentence? A. Yes, sir. Q. -- that the soils information in the Eustis report was unreliable for this designation as the borings performed forming the basis of the report were taken some 165 feet from the Corps' final designated site for the work. Was that information given to the Sonny Shields firm, Elizabeth Gordon, by you? A. Yes. By me and also by the project superintendent that was hired. They had him involved. Ellis Jackson worked on the project site and Shields spoke with him and he verified the soil boring was 165 feet away from the T-wall section and, therefore, it wasn't representative of the soils at the site for the T-wall. That is why McElwee Brothers had Gore Engineering come take a soil boring right adjacent, probably would have been five feet away from the T-wall -Q. Okay. A. -- to show the soil conditions. Q. And this Ellis Jackson, he worked for

it's already? MR. BRUNO: Object to form. EXAMINATION BY MR. TREEBY: Q. In evidence, in my interpretation, means that you've identified it earlier today. But I don't remember. It was your son 's report that you say you reviewed and you stood behind. A. Yes, sir. Q. With some pride, I'm sure. A. Yes, sir. That's Exhibit Number 9. Q. Okay. In Exhibit Number 9, at the top of Page 10 of 13, the paper states, when designing a new T-wall structure the Corps did not take into account the soil conditions which impacted the production rate of MBIs, that's McElwee Brothers, Incorporated 's dewatering system. Is that correct? I mean, was that a correct statement in here? I think you've earlier said that you stood behind what was in this, but I want to make sure. A. Yes. I -- yeah, this is -- I'm standing behind that.

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Q. And ten the next sentence says, the Corps was informed of excessive water in the excavation near the T-wall location. Is that correct? A. That's correct. I think I mentioned we have photos that show the organic materials and water trickling in. Those photos are not in here, but you should have those in your possession at IKON. They were submitted in those documents. But McElwee Brothers has photos showing water trickling in at the T-wall -- demolished T-wall. Just running in. And that was above the excavation line inside the cofferdam or TRS, temporary restraining structure system. Q. And then the report goes on to say, however, the Corps did nothing to study, alter or reexamine the system designed to accommodate the designated soil conditions. Do you stand behind that statement? A. I stand -- I stand behind that statement at a certain point prior to them redesigning after the piles were cracked. Now, after the piles were cracked and the joint venture was -- McElwee Brothers and the joint
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mix bentonite where it will thicken up and support a void. But in that -- on the job, at that time, what the Corps approved and allowed to take place, it wasn't sufficient. Q. Okay. You go on to talk about the pilings that you drove and made arrangements to drive in accordance with the plans and specifications you were given. I assume those were plans and specifications given by whom? A. Corps of Engineers. Q. By the Corps of Engineers. And you indicate the design was -- I say you. This report, which I want to make sure you stand behind, the design was purportedly based on existing soil conditions. In following the design to its specifications, the piling were going to reach its bearing capacity maximum strengths in a layer of dense sand. After following the design to its specifications, the pile did not reach their bearing capacity because there was no layer of dense sand. Is that correct? A. That is correct according to Gore 's soil boring. Q. So the flaw in the design was due to
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venture was defaulted off the job? Then the Corps came back with redesigning work. But as of the June 2003, I stand behind that statement the way it's written. They would -- the Corps would not take a position in the design work relative to the T-wall and the problems found. Q. Okay. Looking at the next paragraph in this report, also Page 10 of 13, it's a paragraph beginning by pulling the piles. This is the concrete piles, is that what this is referring to? A. Yes, sir. Q. Okay. Voids were created that weakened the already insufficient soils conditions. To fill the voids, the Corps ordered McElwee Brothers, Inc. to place a water-based treatment clay bentonite, which has no sufficient strength, in the existing foundation openings. Do you stand behind that statement? A. I stand behind that statement at the rate that they wanted the bentonite applied. If you don't mix bentonite appropriately at a certain mixture, you're going to get that type of consistency, something loose. But you can

inaccurate soils information given to you I believe you've indicated during the bidding phase, and it was the Eustis soils information. Is that correct? MR. BRUNO: No. That's not accurate. I'm objecting to form because you're misstating what he said and what I asked him. MR. TREEBY: I don't even think you have a clue what you just said, Mr. Bruno. Your objection is noted. MR. BRUNO: I do have a clue. You want me to explain it to you? He didn't get the Eustis report during the prebid process. He got it after he got the contract. How about that? MR. TREEBY: Your objection is noted. MR. BRUNO: How about you remember what I said? MR. TREEBY:

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How about your objection being noted and we go on. MR. BRUNO: How about you don't tell me that I don't know what I just said, Bill. MR. TREEBY: You know everything, Joe. MR. BRUNO: I know what I said. I know a lot. I may not know everything, but I know what I said. MR. TREEBY: May we proceed? MR. BRUNO: Yes, we can. MR. TREEBY: Thank you. EXAMINATION BY MR. TREEBY: Q. Did you get soils information in the prebidding phase of this job? A. I got a little soil information. As I was mentioning earlier, other information the Corps said was available in the plans and specs was not available. Q. What company or what individual was
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Page 11, the next page of the report. If you would turn to that. A. Yes, sir. Q. And look at the third -- beginning the third sentence reads, although McElwee Brothers followed the design to its specifications and plans and the piles cracked, the Corps faulted McElwee Brothers for the flaw. You see that? A. Yes, sir. Q. And this -- and you go on to say, this flaw in the design was due to inaccurate soils information given to the contractor during the building phase. Is that correct? A. Yes, sir. Q. And if I understand your testimony -and I'm trying to understand it, I'm not trying to argue with you -- that was because you believe, at least, the Eustis soils information that you were provided was 165 feet away from the excavation site and, therefore, not representative of what was in the excavation site. Is that correct? A. That is correct as it relates to the Gore Engineering soils boring and the Eustis Engineering soils boring.
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the source of the soils information that you had? A. The Corps of Engineers. Q. The prebidding. A. Prebidding. Q. Uh-huh. A. The Corps of Engineers had a boring legend in the plans. Q. And who provided, if you know, the boring legend to the Corps? A. From my recollection, that legend was provided by Eustis. Q. That's what I thought. A. That legend is the same legend that's in this investigative report. I think it's about one or two sheets. But it wasn't the complete file for knowing all the soils information on the job. MR. BRUNO: That's exactly what he said this morning. EXAMINATION BY MR. TREEBY: Q. But it was from Eustis, right? A. Yes. Q. Thank you.

Q. Eustis? A. Eustis. Eustis. Eustis reports. If you take the two borings and put them together, they're not identical. Q. Okay. That's fine. And it was Gore taking soil borings right at the excavation site that concluded there was no dense sand layer and therefore that McElwee Brothers performance was not the reason the piling cracked during installation, is that correct? A. Gore 's report does not go into those details. It merely tells you the soil conditions at that T-wall section. However, the conclusion was drawn through a meeting that McElwee Brothers had with McElwee Brothers, Tri-State, Gore Engineering, Mr. Dixon, Ice Equipment -- there were several subcontractors and service suppliers that McElwee Brothers utilized on the project and held a conference to discuss the problems at hand. Gulf Coast Pre-Stress. Q. Okay. I don't mind any of this information, but I was really looking at that last sentence, if you will, on Page 11 of 13.

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A. Yes, sir. Q. Gore Engineering soils sampling illustrated there was no dense sand layer, rather it was a soft layer, to support the T-wall designed by the corps. And McElwee Brothers performance could not be ruled as the factor for the piling cracking during installation. Do you stand behind that statement? A. I stand behind that statement. Q. Okay. My question, where I was heading with that, was, we have the Gore report. Could you point out to us in the Gore report where that's documented? A. And I was just clearing it up for you that it did not happen in the Gore report, that that conclusion was drawn from a conference. I just explained where the conclusion came from, after McElwee Brothers consulted with its service suppliers, it's equipment suppliers relative to the issue at hand, the cracked piling. Q. Okay. So the -- it would be -- Gore Engineering's soil sampling would not illustrate that McElwee Brothers' performance
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boring by Gore engineering. Q. Okay. A. Okay? Where the tip of the pile is supposed to be I can't recollect, but if you give me a set of plans and I find that tip elevation I can point it on here and I can show you this off of there. Q. Is there a dense sand layer shown on the Gore boring sampling? A. There's a medium dense sand layer, there's a loose gray fine sand layer, um -there's various dark gray organic clay, and there's very soft gray clay. Again, I got to see the tip of the pile elevation to tell you that. I don't remember that. Q. At what level does the Gore boring show a sand layer? MR. BRUNO: Which Gore boring are we looking at, 3 June 2003 or 2001? A. I need to look at the 2003, the latest. MR. BRUNO: '3? A. I'm looking at 2001. I'm sorry.
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called not be ruled as the factor for the piling cracking. Is that correct? MR. BRUNO: Objection. EXAMINATION BY MR. TREEBY: Q. I'm trying to understand. A. The Gore report would not talk about McElwee Brothers' performance period. It would only evaluate the soil conditions and show you the borings and show you what's at the depth and what supposed to be anticipated what's actually there. Q. Would it illustrate that there was no dense sand layer? A. At the depth? Yes, it would. Q. Rather a soft layer. It would show that? A. It would show that. Q. Can you show us that on the Gore report? A. Now, I need to know -- I need to see plans so I can tell you the depth of the plans versus the depths of where we are. Where the tip of the pile was supposed to be versus what layer it's going to penetrate. Here's that

MR. BRUNO: You gave him the wrong one. A. I grabbed this paper. MR. BRUNO: You know, that's why you got to make sure you get the right -EXAMINATION BY MR. TREEBY: Q. What exhibit are you looking at? A. I grabbed the paper in front of me. It says Gore Engineering. MR. BRUNO: It's not an exhibit. A. It's not an exhibit. MR. TREEBY: Okay. So it's what you gave him. MR. BRUNO: No, it's not what I gave him. THE WITNESS: This was sitting here when I came here at the table. MR. BRUNO: That's a copy of the materials that he supplied to Bea. I told you -- I gave you a copy this morning. MR. TREEBY:

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I didn't provide it. That's all I'm saying. MR. BRUNO: Well, all right. I don't want this record to be any more confused than it is. So it's the '03. Here's '03. THE WITNESS: Okay. I have the '03 boring just handed to me by Mr. Bruno. EXAMINATION BY MR. TREEBY: Q. I do, too. A. And, um -- on the '03 boring, if we looking at depths below the surface, at approximately between 71 and 76.5 feet below the surface we have medium dense reddish tan and light gray clay, fine sand, we have -Q. Silty find sand you mean? No, I see clayey fine sand. A. I said between -Q. Yeah, I see it. I see it. A. Um -- I also see some, um -- if you looking between there we've got lose reddish tan clay and light gray sand. I need to know exactly where that tip was supposed to be in
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Q. Did you lose money as a result of Corps decision to terminate this contract? A. Yes, I did. Q. How much money did you lose? A. I'm $1.9 million in debt to a bonding company. Not only that, anticipated profits. Q. Excuse me. I don't mean to interrupt you. I thought you were finished. MR. BRUNO: Well, finish. A. $1.9 million due to a bonding company, plus anticipated profits on this particular project. That was lost by McElwee Brothers. EXAMINATION BY MR. TREEBY: Q. How much were the anticipated profits? A. I haven't even looked at the records and books in a while. I mean, I'd have to -Q. What's your best judgment of what your anticipated profits were? A. The anticipate profits on that particular project was one million dollars. Q. Okay. Who do you blame for the loss of that money? A. A combination of the -- my joint venture partner, basically, and along with the
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order to tell you, and look at this boring versus the contract plan boring. Q. There is also dense gray fine sand at between 42 and 48.5, is there not? A. That's there, but that's not the tip of the pile I don't believe. That pile was 70-something feet long. And it didn't go straight down, it went on an angle, so I'd have to calculate the leg of that angle to tell you where the tip level is. Q. But it is your testimony that if we determined the tip of the design pile it will not -- it would not have rested in dense sand. A. That is true in accordance with the boring that was given in the contract plan. Q. Did you agree with the Corps decision to terminate the contract? A. Absolutely not. Q. You still don't agree with it, right? A. Well, it doesn't matter whether I agree or not, but no, I don't agree. I never did agree. Q. Well, you haven't changed your mind, you still don't agree. A. No, I don't agree.

Corps and its, um -- its way in how it administered that project. Q. And you've already identified, I believe, at least to my knowledge, based on what I've been able to find out, the other litigations that were related to this project. A. Yes. Q. And those litigations either cost you money or significant expenditure of your energy? A. That's true. That's true. Q. And you also blame that on your joint venture partners and/or the Corps. A. Yes. Q. When did you first meet Robert Bea? A. If I can look back at the Exhibit I'll give you an approximate date. Let me look at, um -MR. BRUNO: That letter? EXAMINATION BY MR. TREEBY: Q. Let me show you something else that might help you. A. Yeah. My response to that, your Request for Production of documents?

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Q. Yeah. I'll help. MR. BRUNO: October, '05? This one? MR. TREEBY: I've got an exhibit, Joe. Let me just get it going. EXAMINATION BY MR. TREEBY: Q. I show you document that -- and I know part of this has already been shown to you by Mr. Bruno and you have identified it, and it's not in evidence. MR. BRUNO: No, it's been attached. EXAMINATION BY MR. BRUNO: Q. But it's certainly something that's been attached to the deposition by Mr. Bruno, part of this, but I'm going to put the whole thing in. MR. BRUNO: Yeah, attach the whole thing. EXAMINATION BY MR. TREEBY: Q. And I've marked it as Exhibit -- I'm going to introduce to you the entire thing and see if I'm right. Exhibit 28. (Tendering.) (Exhibit 28 was marked for
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MR. BRUNO: Yes. MR. TREEBY: Or is it a complaint? MR. BRUNO: It's a complaint, Bill. It's a complaint and an objection. Lodge my complaint. EXAMINATION BY MR. TREEBY: Q. Does this help you determine when you first met Dr. Bea? A. Somewhere there about, yes. Q. I assume it was sometime before October 14. Is that fair? A. Yes. I wanted to look at your request for documents so I could check the date, but you told me don't worry about it look at this document, but it's around that time. Q. Do you think -- okay. Hurricane Katrina occurred -- hit land August 29 of 2005. This is October 14th. Do you have some recollection of how long after Hurricane Katrina you first met Robert Bea? A. May I? Q. Sure. Look at anything you want to,
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identification and is attached hereto.) MR. BRUNO: You mean you're going to attach the Corps materials again? MR. TREEBY: Yes. Exactly. A. Wait. It's got the cover sheet that was missing. MR. BRUNO: I asked, I believe at the time that I showed that to you, whether anyone wanted to attach it as an exhibit and no one said anything in response. MR. TREEBY: Joe, let's move on. You're just wasting time. MR. BRUNO: No. You're wasting time. First of all, we've gone over that document and the document you now seek to attach to the record. MR. TREEBY: Okay, Joe. Thank you. Is that an objection?

sure. A. Okay. Thank you. And I can give you a better response. Okay, that looks like the earliest date. So -- somewhere around October, 2005. And Katrina did happen in August, but what year? MR. BRUNO: '05. A. '05. EXAMINATION BY MR. TREEBY: Q. And looking at the first page of Exhibit 28, you indicate in it, in the second paragraph of your letter, why you are sending this to Robert Bea; is that correct? A. That's correct. Q. And you sent this to Robert Bea at his home address, is that correct? A. That is correct. Q. How did you get his home address? A. It may have been during a telephone call or something that we talked. Q. So you believe you had a telephone -I'm trying to get you to recall how you first came in contact with Robert Bea. A. Actually, I'm going to tell you how I

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first initiated some contact. I was reviewing levees.org. I don't know if you're familiar with that, levee.org. Are you familiar with levee.org? Q. It doesn't matter whether I am. I'm just listening to you. A. I was reviewing levees.org and I read some correspondence where Dr. Bea was involved with the, um -- levees investigation team in dealing with the Katrina issue. And I think I may have placed a call to him at that time, just cold called. Q. So you believe you initiated the communication with him, not the other way around? A. From my recollection, I initiated the contact with him. Q. Can you give us your best estimate of how long before this letter of October 14 that was? A. It wasn't -- it may have been a week, two weeks. Q. Okay. Your letter -- am I correct; your letter does not reference any specific location? Is that fair?
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A. He didn't know who Dr. Bea was. Q. On -- in the abstract of the document, on Page 2 of 13, under the heading Results, and I'll just read it, it says, intrigued with the construction results of McElwee Brothers, Inc. on its U.S. Army Corps of Engineers project -and I won't put the number -A. What page are we on? I'm trying to follow you. Q. 3 of 13. A. Okay. Q. You see Results? A. Yes, sir. Q. Intrigued with the construction results of McElwee Brothers, Inc. on its U.S. Army Corps of Engineers project, and it has a number, Dr. Bea asked that McElwee Brothers share its experience on that project. A. Yes. Q. Is that correct? A. That's correct. Q. Did he make that request of you? A. Um -- after the visit -- remember I told you there was a visit -- that Dr. Bea came to visit with McElwee Brothers in Hammond in a
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A. That's correct. No specific location, just a concept, an idea of engineering principles. Q. And similarly, the attachment that you sent that Mr. Bruno went over in some detail with you earlier does not reference a specific site. A. It just talks about earth in general. Anywhere you go there's the same problem. Q. Okay. I take it from your testimony you believe your first contact with Robert Bea was by telephone. Is that right? A. Yes, sir. Q. If you would look back, and I don't have the exhibit number, but the report, Post-Katrina forensic hurricane levee failure evaluation that your son wrote for his professor or his instructor at Grambling, Exhibit 9? A. Yes. Q. Let me ask you this, first: Do you think your son had some earlier communications with Robert Bea than you did? A. No, sir. He wouldn't have. Q. Okay.

conference room where we brought the documents and showed them to him, yes, he made that request at that time. He said, Melvin -Q. Excuse me. So his visit was before November 28th, 2005. A. Yes, it was. Q. Did Professor Bea ask you to be involved in what he has subsequently called the ILIT investigation and report? A. Is that for the levee investigation team, that big report that we're talking about? Q. Yes. A. No, he didn't. In fact, I didn't know McElwee Brothers was in that report until you mentioned it during a discovery request and you said Dr. Bea mentions this company at this page. That was my first time ever knowing that McElwee Brothers was involved in that report. There was no discussion about it. Q. So you did not know, then, that information you were providing him was being solicited by him for that report. A. I knew information was being solicited. I knew he was investigating. I don't take it to be he pulled a trick on me,

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no. I was sharing information with him so that he could see existing conditions somewhere else versus destruction that's already taken place and trying to do forensics on the after parts of it. Q. Did he tell you whether or not, and I don't know -MR. TREEBY: I don't have any information, Mr. Bruno. EXAMINATION BY MR. TREEBY: Q. But did he tell you whether or not he was recording any of the telephone conversations with you? A. He never told me that. He never indicated that was recording conversations. Q. Okay. Have you provided, in response to the subpoena that we gave, I think you've answered this but I just want to make sure, us all the documents that he request from you and that you gave him? A. Yes, sir. Q. There are none that have been thrown away? A. I mentioned to you that there have
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possession, Dr. Bea and them still had it, but that disk is going to made available to you. Q. When? A. It should be within the next three -two days I would say. Q. When did you get it back? You gave it to him, but when did you get it back? A. I haven't gotten it back. Q. All right. He's apparently committed to give it back to you. A. Yes. Q. When did you have that conversation with Dr. Bea? A. There's a third-party conversation. Q. Who was the conversation with? A. Um -- a gentleman working for him named -- I can't think of his name. Let me think. Rosenberg. Q. Do you have a first name? A. Dave Rosenberg. Q. Where is Mr. Rosenberg, if you know; where is he located? A. I only contact him on the telephone. I really don't know. Q. Well, do you have to call a local
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been documents that have been thrown away by McElwee Brothers, and I asked your organization to get with Dr. Bea. And this letter is one of them. MR. BRUNO: We have already gone through this. Objection. We have already gone through this twice before. Given the fact that you're complaining about time, this is getting to be ridiculous. EXAMINATION BY MR. TREEBY: Q. On how many different occasions, Mr. McElwee, did you send materials to Dr. Bea? A. Oh, I can't really remember the number, but I did E-mails, um -- I did some personal box deliveries, that's the disk you saw at IKON, and then there's another disk since that time that's coming to you that is at IKON. Q. So there's another disk I don't have het? A. There's another disk you don't have yet, and the reason you didn't get it back then is because I didn't have the documents in my

call. Is it a long-distance call? A. I call a New Orleans number. MR. BRUNO: He's local, I think. A. Actually, his number -- he's local, but his number is not local. MR. BRUNO: His number is long distance. The point is, though, that you subpoenaed the same stuff and got it from Bea already. So I don't know why you're dragging us through the mud. MR. TREEBY: We'll see. (Brief recess.) EXAMINATION BY MR. TREEBY: Q. Mr. McElwee, I show you a document we've marked Exhibit 29 which is an E-mail from Dr. Bea to you dated Wednesday, January 4, 2006. This was Exhibit A to your subpoena response to me. And in this E-mail Dr. Bea is asking you for a meeting for, and I quote, the purpose of gathering more background on the construction aspects of the flood defense system for the Greater New Orleans area. And

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you responded, on Monday, January 9, also on this document, asking for 24 hours notice for that meeting. You see that? (Exhibit 29 was marked for identification and is attached hereto.) A. Yes, sir. EXAMINATION BY MR. TREEBY: Q. Did that meeting take place? A. Sir, I'm going to answer like this: I came -- I came to New Orleans during a time frame when Dr. Bea was, um -- meeting with the Lakeview residents. And I don't know if that -- this turned into that meeting. I'm just telling you about the meeting times I've met with him. I told you about the first time with the conference. The second time was at Lakeview. And there was no other meeting between those two meetings. But Dr. Bea did contact me and say, I want you to show up at a meeting with the Lakeview residents. And I was there, and he introduced me to several of his colleagues and people that he was involved with dealing with this levee thing. Q. Do you believe that was in around this
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possession that I didn't have as of the last subpoena request. Q. Okay. Was your -- this meeting that took place in this January time frame, was your family also present? A. My family was present at the Lakeview meeting, yes. Q. Would you -- who in your family was present? A. My entire family. My wife Sylvia -you know her in some documents as Sylvia Hurst which is her maiden name -- Melvin, Jr., Millard, and my daughter Malonda. Q. You've indicated this was a Lakeview meeting. Did you know the other people who were present besides -- I know you said you met Robert Bea there again. You had met him once before? A. Actually, I knew no one but Dr. Bea and, um -- a couple of other people only because of television. That was the LSU professor, um -- I can't think of his name -with the glasses, curly hair. Q. Is that Van Heerden? A. Yes. I knew him from television. I
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time frame, January of 2006? A. I believe it was, sir. Q. Okay. A. I'm believing it was. Q. I note in the E-mail that I just read that Dr. Bea is asking for more background. What background had you previously given him? A. Well, I mentioned the meeting, the conference. Q. Uh-huh. A. And I gave him an oral presentation of the project and let him look at all the documents. That's what I gave him. Q. And that was the Dwyer Road project. A. That was the Dwyer Road project, yes, sir. Q. Okay. A. Mr. Treeby, may I state for the record, which I did state off the record, that the disk is available at IKON of the documents that you asked me when they're going to be available. They are available right now. You can call IKON and pay the cost for the other documents that are in Dr. Bea 's colleague's

knew Garland -Q. Robinette? A. -- Robinette from television, but no one personally. Everybody else was introduced to me. Q. Okay. I show you a document which we've marked McElwee Exhibit 30, which is an E-mail that I believe you produced to us as Exhibit B to your response. It's a January 14, 2006 E-mail from Robert Bea to you, and in it he states, Melvin, I want to thank you and your family for all of your kindness and our meeting. Attached are two documents that can help your son take the next steps. I will send the electronic version of my books later, Bob. Did you ever -- I assume -- did you receive this E-mail? (Exhibit 30 was marked for identification and is attached hereto.) A. Yes, sir, I did. EXAMINATION BY MR. TREEBY: Q. What was attached to the E-mail? A. Um -- I think it was a draft report of the independent levee investigation team. The draft report. Because -- and the reason I say

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draft is the financial report, after I saw your request for production of documents and you mentioned that McElwee was in that report, it was different than the initial report that he sent to me. It was -- so it was a draft report of the final report that you have in your possession. Q. Do you not -- do you no longer have the attachment to this E-mail? A. I have that attachment. It's pretty thick. I don't have it on computer form. I printed it out when he sent it to me. And it was about that thick. (Indicating.) Q. Was there some reason that you didn't give that to us in response to your subpoena? A. The reason was you had the final report, so I didn't see a need to duplicate something that you already had. You had the final report. Q. Well, I would particularly want anything he gave you, and that was specifically requested in the subpoena. Do you still have it? A. Sir, you have no problem -Q. Do you still have it?
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identification and is attached hereto.) A. At the top? This is an E-mail printed on my computer -- I think it is, yes. EXAMINATION BY MR. TREEBY: Q. Yeah. Well, you gave it to me, it was Exhibit C to your response to the subpoena. A. Right. Right. I did, because here's the fax. I faxed you that document, yes, on the bottom. Q. But on the top, under your name it's got from Robert Bea, the date, to you, re: You are invited. A. That's correct. Q. And then it's really a sting of E-mails that begins, as best I can tell, and again this is the best I can tell, it appears -- it begins with one at the bottom from Robert Bea to you dated May 17, 2006. You see that? A. On the second page? Q. Well, no, it starts at the bottom of the first page. MR. BRUNO: No, it starts at the bottom of the second page.
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A. I still have that printed out. You can have it. Q. Want a copy of what you've got. A. Yes, sir. Q. And I believe it's responsive to the subpoena. A. That's fine. I mean, I just thought I was duplicating things by sending you a draft versus the final copy. MR. BRUNO: You are duplicating things, but that's okay. They get paid by the hour. EXAMINATION BY MR. TREEBY: Q. The next E-mail we have is one dated June 22nd, 2006, which was marked as Exhibit C. It's Exhibit 31. I mark it here McElwee Exhibit 31. And I notice that you are thanking -- let me just ask a general question about this, because I was confused by this. This purports to be printed obviously on your computer, Melvin M. That's what that means when your name is it at the top, is that correct? (Exhibit 31 was marked for

EXAMINATION BY MR. TREEBY: Q. With all due respect to Mr. Bruno 's eyesight, if you will look up from the bottom of the first page, it says, Page 1 of 3 at the top, it says, original message from Robert Bea sent Wednesday, May 17, 2006, 1042 a.m, to Melvin M.L. McElvee, Sr. You see that? A. I see that part of the page you're referring to, yes. Q. That would be caption of an E-mail from him to you, would it not? A. Yes, it would. Q. Okay. And then it says, announcement: You're invited to attend, and it continues, it looks to me, like on the second page. Is that correct? A. Yes. Q. Right. MR. BRUNO: Right. On the second page. A. He was inviting me to the Sheraton New Orleans -EXAMINATION BY MR. TREEBY: Q. For an event on May 22nd. A. That's correct.

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Q. Okay. And then after the invitation there's some more text. It says, I think we got it put together correctly, thanks for your help, but it is not over, only started. Bob. You see that? A. Yes, I see that. Q. Here's what's confusing me: I see interjected between -- on the first page, between Bob, there, and the beginning of the next E-mail, I see some language that I presume is from you. Is that correct? A. Point the language out and I'm going to tell you what -Q. Thanks for the invitation. A. Yeah. Thanks for the invitation. That's from me. Q. But what I don't see on this is any typical E-mail address line from somebody to somebody. A. I can't answer the question on how that happened. I mean, I really can't. Q. It looks like to me this was an edited -- this has been edited before it was printed. Does it looks like that to you? A. No. You mean -- if you're inferring
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EXAMINATION BY MR. TREEBY: Q. Can you explain it? A. I can explain this email to you coming from the bottom up on the second page. Q. Can you explain why you don't have an address on your -- before your note to him? That's my question. A. I cannot answer a computer glitch. I'm not a computer expert. Q. Okay. You can't answer. A. No. Q. That's all I'm asking. You don't have an answer to that. Then there is something that says, in that same section of the E-mail, would you -- well, first, look at it, between Bob on the first page and then original message on the first page, is all that you're text? A. Thanks for the invitation? Yes. Sorry I was out of town during that week. Yes. Is it possible that I may receive a copy of the report at our mailing address? Yes. And I gave him the mailing address to send the copy of the report. Um -- the final report. I still haven't received any of your attachments on your last E-mail correspondence.
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that I edited -Q. I'm not inferring anything. MR. BRUNO: Yes, you are. MR. TREEBY: I'm not inferring a thing. EXAMINATION BY MR. TREEBY: Q. Do you know of any E-mail that goes out and that's printed without a from and a to and a date on it? MR. BRUNO: Yes. All the time. A. Yes. It happens. MR. TREEBY: Joe, I'm not taking your -- you want to get under oath and I'll take your testimony? MR. BRUNO: Don't. I'm just so resentful of your suggestion that a goofy E-mail like this, which is an invitation to a presentation has been edited? Give me a break. MR. TREEBY: I'm trying to find out.

Again, thanks for the invitation. And if there is anything else I can help with let me know. Q. So all that's yours? A. That is me. That's me. Q. Okay. That's what I wanted to know. Was there any -- to your knowledge, was there any E-mail between you and Bob Bea between January 14, the earlier exhibit that you gave me, Exhibit B, and this Exhibit C? A. I can't -- if I had it, you have it. I'm not going to tell you there wasn't one. Q. That's a different question. I'm really -- from your memory, can you tell me was there any E-mail exchange between you and Dr. Bea between January 14, 2006, and May 17, 2006? From your memory. A. I want to approach the answer to this question with an abundance of caution, and the reason is, obviously tons of E-mails, and sometimes some may go through and I deleted them and it's gone. Okay? And you may have a copy of an E-mail that Bob sent me that I'm not aware of but I didn't print a copy of that out at this time or even read it. Q. I wouldn't trick you like that. I

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don't have any E-mail. MR. BRUNO: Oh, please. EXAMINATION BY MR. TREEBY: Q. I have no E-mail from anybody between those dates. A. Well, to my knowledge -Q. My question to you is -- and I understand people delete E-mails. I do it myself. My question to you is, do you remember whether there was any E-mail exchange -A. No, sir. Q. -- between you and Dr. Bea -- listen carefully -- between you and Dr. Bea between January 14, 2006, and May 17, 2006? It's not in there, I can tell you that. A. It's not in the response? Okay, no, sir. If it's not here, I don't remember. Q. You don't remember it. A. No, sir. And I want to apologize because I have been tricked up like that by Lloyd Shields. I'll answer a question, and trying to be honest, and then all of a sudden boom, he's trapping me. So I'm doing it with
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Q. -- a similar question to the one I asked about the prior one. And again, I just want to make sure. This again is an E-mail that appears to have other E-mails cut into it. What I mean by that is, it says, Happy Friday, Melvin. That's the way it starts. And it's got some text, then it says Dr. Bea. And it says, now responses to your E-mail -- your E-mail, meaning you, I believe -- follow below. And then there's a section that says thanks a million with a bunch of exclamation points. And it goes on, Sylvia says hello. I assume that's from you. A. Okay. Let me tell you what Dr. Bea is doing. Q. Is that correct? A. That's correct. Dr. Bea took what -my E-mail, and when I said something, he responded. You know, he just -- that's the way he is. MR. BRUNO: He cut and pastes. A. I say thanks a million. That's what I said. And he came back and said, and hello with hugs to your family. It's people like you
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caution. Q. I have in fact -- I'm not commenting on that, but all I'm telling you is I have subpoenaed E-mail from Dr. Bea, I've subpoenaed E-mail from ILIT. If I had any between these dates, I would tell you. It just, I'm asking from your memory if during that four-month or five-month period you remember any. A. No, sir. Q. Okay. A. I don't remember. Q. I show you an E-mail from Dr. Bea to you dated August 25, 2006 with a re: line of when the levees broke. (Tendering.) I marked it Exhibit 32 for this deposition. (Exhibit 32 was marked for identification and is attached hereto.) A. Yes, sir, I remember his response because I E-mailed him to let him know that I saw his appearance on When the Levees Broke, with Spike Lee, and I was complementing him on his, um -EXAMINATION BY MR. TREEBY: Q. Okay. I'm going to ask you -A. -- appearance.

that make the place work. In my E-mail I said, to date I think you're the only man telling the truth about the current conditions of the levees as they relate to the safety for the American public. Dr. Bea answered me back by saying, I hope not. So that's what was going on there. Dr. Bea did that. But I had sent him an E-mail with this same excerpts in it, and I think he just went through and he did the cutting and pasting. Q. Do you know where your E-mail that he cut and pasted from is? A. I don't keep copies of my E-mails. MR. BRUNO: Your sent E-mails. THE WITNESS: Yeah. A. I just sent it. MR. BRUNO: Not many people do. EXAMINATION BY MR. TREEBY: Q. Okay. You -- this document that I've attached as Exhibit 32 has some more pages after the two pages of E-mails.

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Were these attached to this E-mail from Dr. Bea? A. Yes. That is why I submitted it as all Exhibit D. I'm showing you that this is the E-mail I got back from him, and these are the documents that were attachments to that E-mail. That's how I'm remembering it now. Q. Did your son ever go to the University of California Berkley? A. No, sir, he hasn't. I wish he would. I was telling him to take that. Son, everybody don't get that opportunity, why don't you do it. Q. So Dr. Bea invited him there? A. Yes, sir. He don't want to get too far away from dad. Q. I show you a document we've marked Exhibit 33 which for this deposition, which is an E-mail dated October 15, actually. It's got I think two E-mails in it. One of them is October 14 and one of them is October 15. (Exhibit 33 was marked for identification and is attached hereto.) A. Yes, sir. And the -EXAMINATION BY MR. TREEBY:
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Q. Okay. This was given to us as your exhibit after your response to our subpoena. Were the attachments to this, to the two pages of E-mail, attachments to that, were they the attachments to this E-mail? A. Yes, sir. In fact, if we look at Exhibit F, Attachment 8, that's what's written down there, 8. Um -- third page is titled what do we do? Bob Bea's answers to questions. If you look at the E-mail, what do we do, I mean that's the attachment that I opened up. Can you see that? Q. I'll take your word for it. A. Yeah. See, what do we do is the title of this one. Q. Okay. A. What do we do is title of that attachment. Q. Okay. I show you a document we've marked Exhibit 34 which is Exhibit G to your response to your subpoena. It's an E-mail dated December 13, 2006, from Robert Bea to somebody named James Delery. (Exhibit 34 was marked for identification and is attached hereto.)
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Q. From Dr. Bea to J.W. Templeton on which you were copied. A. Yes, sir. Q. Do you know who Mr. Templeton is? A. Other than the explanation in the E-mail, no, sir. Q. Did he ever contact you? A. No, sir. Q. Do you know why Dr. Bea referred Mr. Templeton to you? A. Other than drawing a conclusion from the E-mail, I don't know. My conclusion was that I think he had some conversations with this guy, the guy wanted to talk with Dr. Bea relative to the levee failures, and Dr. Bea said, I think this is a great source, go to Mr. McElwee. Q. Okay. A. And I think it had something to do with -- I'm sorry. Q. Go ahead. A. I think it had something to do with small businesses doing work for the government in this area relative to Katrina. Something like that. That's what I'm thinking.

A. Yes, sir. EXAMINATION BY MR. TREEBY: Q. Coping David Rosenberg and Melvin M.L. McElwee, Sr. A. That's me. Q. I just -- this David Rosenberg now comes -- Who is he, by the way? A. David Rosenberg is a colleague or somebody that works for Dr. Bea, that Dr. Bea introduced me to at the, um -- the, um -- the meeting my family went to. Q. Uh-huh. Do you know what his profession is, if any? A. I'm told he's a professional engineer from California. Q. Okay. Who told you that? A. He told me that. Q. He's the one that has these documents that you told me I can get from IKON? A. Yes, sir. Q. This E-mail is introducing Mr. Delery to you and encouraging you and Mr. Delery to have communications with each other. Did you ever communicate with Mr. Delery?

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A. No, sir. Q. If you know, is the town hall meeting referenced in this E-mail the one described in the earlier E-mail, the one at Lakeview? A. No. I think this is a separate town hall meeting that Dr. Bea mentioned to me on that night that was going to come up, and he want me to, um -- be involved in, but I never heard from him, or I don't know if it ever took place or not. I'm not -Q. You didn't go to it if it did? A. I didn't go to it if it did happen. Q. Okay. In -- what materials, if you know, was Dr. Bea referring to when he said you and your family had spent a lot of time organizing background materials? A. Um -- the conference -- remember the conference I told you I brought a trailer in and went to a conference room at I think it was Holiday Inn or one of the places, rented a conference room, laid it all out? Q. Brought file cabinets? A. Yes. Q. So these are all documents relating to Dwyer Road project?
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end, but not admitting the problems on the job -Q. Okay. A. -- and then all of a sudden the bonding company had to come in, and they refused to pay for modifications, I think there were nine modifications we brought to the Corps' attention they ignored, and we went to the Armed Services Board of Contract Appeals to get answers and the Corps danced around it. I mean, they're very good at dancing and getting behind the scene and letting somebody else -Q. And I don't need to go back through that, but what I was trying to find out is do you know of anything else he was referring to there besides what you've already described for us? A. No. That's the only thing that he was presented with by McElwee Brothers. Q. Okay. I show you an E-mail marked which was Exhibit H to your subpoena response, and I've marked it as Exhibit 35. And it's an E-mail -- by the way, did you ever meet -- I may have asked this, I apologize if I did: Did you meet with Mr. Delery?
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A. That's correct. Q. There's a reference in here, if you know, to -- let's see if I can find it again. Oh. In the third paragraph of this letter, speaking of you and your family's experience. I believe that's what he's speaking about. He says in this statement also that they had used -- let's go back. It was clear that the Corps -- starting at the middle of that paragraph. It was clear that the Corps had misled his construction company and others. Their experience clearly indicated that the Corps had known about the soft soils, organic layers and seepage problems far in advance of Katrina, also that they had used unprofessional and reasonable methods to pressure the contractors into desperate financial binds, example: Bond forfeiture. Do you know what he was referring to there? A. Yes. He was referring to the conditions on the Dwyer Road project that we have talked about, me agreeing with the Corps, disagreeing with the Corps, the problems that occurred, the Corps saying we were behind schedule from the beginning of the job to the

(Exhibit 35 was marked for identification and is attached hereto.) A. No, sir. I don't know Mr. Delery. EXAMINATION BY MR. TREEBY: Q. You don't know who he is or what he does? A. I don't know who he is or what he does. Q. Okay. This next Exhibit 35 from Robert Bea to somebody W. Weiser, and then it has a lot of folks copied, including you, I believe -- yes, including you -- Re: meeting in Lakeview. This is December of '06. And then on the next page there's a -- continues and there's another E-mail December 14. A. If you're asking me about the details of this E-mail, I can just tell you it's something he courtesy copied me. I printed it from my file. I can't tell you anything about -Q. Do you know who Weiser -- W. Weiser is? A. I have no clue. Q. Have you looked through -- you gave it to me, and if you need to look through it to

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answer this question, that's fine. If you don't, that's fine, too. Were any of the comments contained in here, because this is one of those edited E-mails, were any of these comments yours? A. No, sir. Q. Okay. I show you another E-mail. This was your Exhibit E to your subpoena response. I've marked it Exhibit 37 for this deposition. This is dated December 22nd, 2006, and this one is just from Bob Bea to you entitled, subject, the beat goes on. And this appears to reference another meeting at Lakeview that you went to. A. I'm -- I'm going to tell you, so help me God, I only went to one meeting at Lakeview. Q. So you can't account for the date on this E-mail, then, I take it. A. Um -- actually, if you can give me the exact date of the Lakeview meeting, I can tell you that's when I went to the Lakeview meeting. I only went the one meeting, and it was recorded and televised. I'm in that meeting, I make a comment in that meeting, but the exact date of when it took place I can't answer you
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in that E-mail, at that time frame. Q. Well, now I'm getting really confused, because there was also the November 28th report by your son in which he alludes to -- and he alludes to a request made for materials that had been provided to Dr. Bea. That's back in November of '05. And I thought -A. Who made the request? Q. In the report that your son did -A. Yes, sir. Q. -- we read the part results. And there was an indication that Dr. Bea had requested and that he, being you, because I asked you who it was and it was you, had provided materials to Dr. Bea. You recall that? A. I'm going to answer you again. Q. Well, you either recall that or you don't. A. The materials I provided -Q. Uh-huh. Were at this meeting at the Holiday Inn. A. -- were at the Holiday Inn -- yes. And he didn't walk away with any materials, he just looked at everything on the table. I
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here. I only went to one meeting. Q. So when you refer -- early in the year 2006, you remember -- I can take you back to it, but maybe you can do it from memory -there was an E-mail from him to you, January 4th, that he was coming to town, would like to meet with you, and there was then a subsequent E-mail of January 14, ten days later saying it was great to meet with you and your family. A. Okay. Q. Okay? And you had earlier testified that you believe, yes, that meeting was the meeting in Lakeview, and Garland Robinette was there and whoever else you've testified about. A. Yes, sir, I said I believe that to be that meeting. However -Q. This is almost a year later. A. Okay. Let me mention this to you: Maybe I quoted -- it wasn't that meeting, but I did tell you I met with him at a Holiday Inn showing him all the documents. Now, during that time frame my family wasn't there -- well, let me put is this way: My wife was there and her aunt was there. But my children were not there. So maybe that's when he's referring to

never provided him any documents. Q. I understand what you've saying. And you later said you haven't provided him any documents until very recently. A. That's right. Q. Okay. So I'm having trouble with this -- you met with him at Holiday Inn. Do you remember what year it was? Was it before the report or not? A. It was before my son's -- let me look at my calendar and answer the question when that date of that meeting happened. Can I do something like that? Q. Sure. I would like to got I right. MR. BRUNO: I don't know why it's remotely relevant to anything we're doing, took while we're at it. MR. TREEBY: I don't think Dr. Bea is remotely relevant to anything, but you think he is, so that's why this is important. MR. BRUNO: Really. So it's important to know that Dr. Bea met with him at a

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certain time and at a certain place? MR. TREEBY: Uh-huh. Yes, it is. MR. BRUNO: And that relevant to his opinions? MR. TREEBY: Yes, it is. MR. BRUNO: Well, you need to read the reports. MR. TREEBY: Very much so. EXAMINATION BY MR. TREEBY: Q. Okay. Now, this would indicate that there was -- in fact, you will see attached coming home and something from Wagenaar letter, is attached to your 22nd -- this December 22nd E-mail you gave to me as exhibit E to your response to my subpoena. You see that? A. Yes. Q. Okay. If you'll look at the first attachment, it speaks of a town hall forum December 12, 2006, St. Dominic Church.
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MR. BRUNO: Because it says, thanks for talking time from your daughter's birthday party. When is your daughter's birthday? THE WITNESS: December 12th. MR. BRUNO: So you have a reference. THE WITNESS: December 12th. That's the date that I met at the town hall meeting in Lakeview. EXAMINATION BY MR. TREEBY: Q. How many occasions have you met in person with Dr. Bea? A. Met in person with him? Q. Yes. A. Twice. Q. And I know you're having trouble with dates, and I'm not trying to nail you with dates but can you tell me anything about the two meetings that would help us identify them, what happened, who was there? A. Okay, in Hammond, the conference room,
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A. Yes, sir. Q. Are you testifying this is the only meeting in Lakeview -- in Lakeview. I'm not saying at that church, but in Lakeview -- that you attended? A. Yes, sir. Q. Okay. So if there was a meeting in January of '06, eleven months earlier, that was where? A. That was the meeting I keep saying at the Holiday Inn conference room in Hammond. Q. Okay. A. That's -Q. And then so if there was a meeting prior to November 28th, 2005 when the report was written, at which you showed Dr. Bea materials, where was that? A. That was the meeting I'm telling you about, whatever day it was. Q. Those dates don't work. MR. BRUNO: How about his daughter 's birthday, why don't you ask him that? MR. TREEBY: Let's proceed.

myself, my wife -Q. Who booked the conference room? A. McElwee Brothers did. Q. Okay. A. Um -Q. You should be able to find out when that was, then. A. Yes, sir. Q. Would you do that? A. Yes, sir. Q. Okay. And what was the other occasion? Was it at the Lakeview? A. The Lakeview. Q. At St. Dominic's church? A. At St. Dominic 's church on December 12th. Q. To your knowledge, did you meet or speak with any of the team members, other than Dr. Bea, responsible for what Dr. Bea has called the Independent Levee Investigation Team investigation and report? A. When you say team members, I'm just going to mention to you Dave Rosenberg and Dr. Bea. Now, I don't know if Dave Rosenberg was part of that team or whatever, but that's

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the only two people I've talked to. Q. Okay. Have you met with Mr. Rosenberg other than when he was with Dr. Bea? A. Yes. Q. On how many occasions? A. Oh, I can't -Q. Many? A. I'm sorry. It was quite a few occasions, yeah. We met on quite a few occasions. I'd have to get my calendar to tell you what the dates were. Q. When did you first meet -- when -- if you recall, approximately when did you first meet with Mr. Rosenberg? A. Meet with him after I met him? I met him at the town hall meeting. Q. So that would be December 12, 2006, you believe. A. Yes, sir. Q. And that was the first time you had met him. A. That's the first time I met him. Q. So he wasn't with Dr. Bea at Hammond? A. No, sir. Dr. Bea was alone that time. Q. Okay.
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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 23rd, 2008
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MR. TREEBY: I think this is a good place to break. I'm not going to be too much longer, but I'm really not -- I'm almost finished, but this will take a little while to develop this. (Recessed for the day.)

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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

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