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1 DISTRICT COURT, CITY AND COUNTY OF DENVER COUNTY2 STATE OF COLORADO3 Case No: 2012CV3718, Division: 424

_______________________________________________________4

DEPOSITION OF: JAMES ROBERT HARRIS, P.E. -5 AUGUST 27, 2014

_______________________________________________________6

PALACE LOFTS CONDOMINIUM ASSOCIATION,7

Plaintiff,8

v.9

MCDONALD WATERPROOFING, INC., et al.,10

Defendants.11 _______________________________________________________1213 PURSUANT TO NOTICE AND AGREEMENT, the14 deposition of JAMES ROBERT HARRIS, P.E., was taken on15 behalf of the Defendant at 1775 Sherman Street, Suite16 2000, Denver, Colorado 80203, on August 27, 2014, at17 9:08 a.m., before Suzanne Reid, Registered Professional18 Reporter and Notary Public within Colorado.192021222324250002

1 A P P E A R A N C E S2

3 For the Plaintiff: WENDY E. WEIGLER, ESQ.Lansky, Weigler & Porter, P.C.4 1401 17th Street

Suite 5605 Denver, Colorado 80202

303-382-415367 For the Defendant: WILLIAM K. ROUNSBORG, ESQ.

McElroy, Deutsch, Mulvaney &8 Carpenter, LLP

5600 South Quebec Street9 Suite 100C

Greenwood Village, Colorado10 80155 303-293-880011

Also Present: ROBERT TRIPP HALL, ESQ.12 Treece Alfrey Musat, P.C.13

JAMES WYSE, Palace Lofts14151617181920

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1 P R O C E E D I N G S2 WHEREUPON, the following proceedings were3 taken pursuant to the Colorado Rules of Civil4 Procedure.5 MR. ROUNSBORG: Before we get started,6 counsel for Palace Lofts wants to, I guess, have a7 discussion with me about our opportunities and alleged8 prejudices and the manner in which this case has been9 handled and how none of that should matter, I suppose,

10 or at least that's the way I'm hearing it.11 So why don't you go ahead and, for the12 record, say what you want to say.13 MS. WEIGLER: All I want to say for the14 record is that we're about to take the depositions of15 Palace Lofts' expert witnesses and there are motions16 pending before the Court that affect the scope of the17 expert witnesses' testimony.18 I wanted the record to be clear that there is19 also a pending motion asking the Court to stay this20 action and to allow supplementation of the expert21 disclosures. So if the Court -- depending on how the22 Court rules on those issues, I believe affects the23 scope of the depositions today.24 So to the extent that the defendant is going25 to later claim that they were prejudiced in not being0006

1 able to conduct discovery as to those issues, I think2 the record is clear that we -- they have the option of3 putting these depositions on hold and staying the

4 action, as they had asked the Court for about four5 months of this case, and agree that the case needs to6 be stayed and the trial needs to be continued so that7 we know what all the issues are.8 MR. ROUNSBORG: I'm going to proceed with9 this deposition on the basis of the orders that have

10 already been entered in this case, reserving my right,11 if the Court does a 180-degree turn and forgives12 plaintiff its handling of this matter, we can talk13 about those issues if and when the Court enters a14 contrary ruling.15 But for the record, I am not going to miss my16 opportunity, this close to trial, to take this17 deposition on the basis of the record that has already18 been established and the rulings that have already been19 made and the disclosures that were timely and the20 issues that were properly identified.21 To the extent that the Court says, You know22 what? On the 11th of August, I was absolutely wrong,23 and you can try and create or identify or raise new24 issues, I think -- you sat before the Court. You know25 how Judge Laff felt about this. I think that it would0007

1 be appropriate at that time for me to then say, "Judge,2 if we're going to restart, as you've said we were not,3 but if you've changed your mind, then I'm going to want

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0827jharris.txt4 to reopen these depositions."5 And I think that that addresses your concerns6 about moving forward with these depositions today. If7 you have a problem with me moving forward on the basis8 of your motion and you want to save some money today,9 feel free to call the Court and see if you can get a

10 ruling on a motion to -- no -- for protective order to11 stop this deposition.12 But it's got nothing to do with a prejudice.13 It's got to do with the case as framed. And we'll be14 going to trial if we don't resolve it as outlined,15 quite clearly, by the Court on the 11th of August.16 We've got the transcript. You're free to borrow it and17 read it, share it with your client, see what the Court18 said.19 Until he changes his mind -- and he is going20 to have to do a 180-degree turn -- Judge Laff's ruling21 will govern how I conduct this deposition today and the22 scope of the questions that I ask. I will ask a little23 bit about new stuff, but that's more in the context of24 how you handled the case and why we are dealing --25 continuing to deal with the issue I think that the00081 judge handled quite properly a couple weeks ago.

2 Fair enough?3 MS. WEIGLER: Yes. Thanks.4 MR. ROUNSBORG: All right.5 JAMES ROBERT HARRIS, P.E.,6 having been sworn to tell the truth, testified as7 follows:8 EXAMINATION9 BY MR. ROUNSBORG:

10 Q. I was going to want to do a little stuff off11 the record before we started, Mr. Harris, but since we12 went on the record, we'll get some preliminaries out of13 the way.14 You understand there was a subpoena, and I

15 think that waiver was arranged?16 A. Yes.17 Q. Okay. Do you have your complete file with18 you today on the Palace Lofts work you've done as it19 relates to McDonald Waterproofing and other issues, I20 guess?21 A. Pardon me.22 Yes, I do. I'm actually copying computer23 files onto a flash drive that I intend to give to you.24 Q. Will that include the photos we talked25 about --0009

1 A. It will.2 Q. Okay. Do you have a hard copy that I could3 just glance at real quick to make sure I --4 A. Not of all those photos. No, I don't.5 Q. No, no, not the photos. But the rest of your6 file, is that --7 A. Yeah. This -- this big ring binder is stuff8 we printed out because we needed to at various points9 in time. And then this little group of things right

10 here is stuff that is really directly pertinent to the11 3m terrace. The 3M terrace stuff is in there, but12 there's also 3L and other things around the building.13 Okay. The -- the -- the 3M stuff I pulled out and14 Ken -- Ken pulled out so we could reread it getting

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1 Q. Okay.2 A. And I 'm going to just answer a question you3 haven't asked. There will occasionally be -- you'll4 ask me to find something and I can't find it, and5 you'll have better luck this afternoon with Ken on6 that. Ken and I worked together on this project a lot,7 back and forth, back and forth. But Ken is the true8 custodian of the file.9 Q. Okay.

10 A. Okay?11 Q. So I'm not wasting my time taking his12 deposition today?13 A. No, no.14 Q. At least to the extent that I need an15 understanding of records and -- and we may not get to16 that point. This might be pretty slick and quick. But17 I appreciate that.18 So this document from Blazer was provided to19 you last week or the week before, sometime --20 A. Probably the week before, but yes.21 Q. Okay. And for the record -- and I'm not22 going to mark this at this time -- it is an -- it's a23 document that is Bates stamped, and I think it came24 from Bornengineering's file, but it -- there appears to25 be a Bates of 08070. I might want to probably get a0013

1 copy of this. It kind of depends on where we go with2 this.3 Was this document -- the only time you used4 this was with respect to your August 20 letter to5 counsel; is that right?6 A. Yes.7 Q. All right. And did you, in fact, utilize8 these bid quantities for computations of -- of any9 kind?

10 A. We compared those quantities to what we

11 measured as to the total length of caulking and sealing12 and quantities that were in other contractors' bids on13 that same thing. Not everybody had the same14 quantities.15 Q. Okay. And that August 20 letter is fairly16 familiar to you?17 A. Yes.18 Q. Did you write that, or did --19 A. Ken wrote that. I -- I did the quality check20 on it.21 Q. Okay. J.R. Harris -- and you know what?22 I've got to be honest with you. I didn't really review23 your CV. So I'm just going from -- I probably should24 have. But I thought I don't need to do that. We can25 do this quick. I know who J.R. Harris is.0014

1 You guys -- you guys do both -- you build as2 well as --3 A. We design for new construction.4 Q. Right.5 A. We design for remodel.6 Q. Right.7 A. But we also investigate problems.8 Q. Right.9 A. And we occasionally testify.

10 Q. That was my question: You cover the gamutPage 6

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0827jharris.txt11 from new construction to remodel, remediation --12 A. Yes.13 Q. -- to forensics?14 A. Yes.15 Q. Okay.16 A. And -- and some other things, too.17 Q. All right. And we're not -- I'm not going to18 spend a whole lot of time on that August 20 letter.19 But, typically, in your forensic work, when20 you're making calculations and taking measurements of21 quantities and linear feet and things of that matter,22 in a report that you would prepare for litigation, you23 understand and would provide some articulation of the24 manner in which you made your calculations rather than25 just providing final numbers, wouldn't you?0015

1 A. Well, particularly where the calculations2 are -- let -- I'll say more of a -- an involved nature,3 as they often are in structural engineering. This was4 fundamentally just a tabulation.5 Q. I understand. But in recognizing that there6 is a distinction between the kinds of calculations that7 go into evaluations of shear and loads and things of8 that matter, which are a bit more complicated than what9 might have gone into the August 20 letter, you do

10 understand that what is required of a party in11 disclosing the opinions and report of an expert is a12 report that provides the bases for ultimate opinions.13 So when we're talking about, at the end of14 the day -- can't remember the word you used for it,15 but -- you know, tabulation, is it not your16 understanding that you are required to provide a17 detailed discussion of the -- of the manner in which18 you reached those numbers?19 A. Um, no. I guess I'd have to say it's not my20 understanding --21 Q. Okay.

22 A. -- that we would. But I could easily tell23 you what we did do. And it wasn't me personally who24 did it, and it wasn't actually Ken who did it.25 Q. Okay.0016

1 A. It was another engineer in office. And2 there's a lot of programs now that you can open and3 look at PDF, portable document files.4 Q. Sure.5 A. We have scanned PDFs of the drawings prepared6 by the original architect for the first construction of7 the building.8 Q. Okay. Let me stop you for a minute because9 I'm not asking you for those details.

10 A. Okay. All right.11 Q. And counsel is welcome to, if she's allowed12 to, present any testimony by you with respect to that13 issue. Given the nature of the handling of this14 litigation up to this point and the rulings of the15 Court, my question is -- is not as to what you did.16 A. Okay.17 Q. But there were things that you did with both18 PDFs and comparisons of bid quantities from various19 sources and actual on-site observations and20 measurements that are not described in the August 2021 letter. That is simply my question. Is that not true?

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0827jharris.txt22 A. Certainly, we don't describe how we added up23 the numbers in the PDFs.24 Q. Okay.25 A. Okay.0017

1 Q. When were you asked to perform the evaluation2 that is, I guess, reflected in some part by that letter3 of August 20?4 A. It was --5 Q. It was --6 A. It was not very long before that.7 Q. It was on or after August 11th, wasn't it?8 A. Oh, yes.9 Q. Okay.

10 A. It was. It was in August of this year, for11 sure.12 MR. ROUNSBORG: And I'm going to reserve the13 right to at least argue to the Court that I be given14 the opportunity to examine this witness further on the15 issues reflected in that August 20 letter should the16 Court change its mind and allow that as a disclosure17 and allow testimony on those points at trial should we18 be unable to resolve this case.19 Q. (Perusing document.)20 All right. I think -- I have all this, and I21 appreciate that. And I -- I'm not absolutely certain22 because we got some documents yesterday, I think, that23 counsel may not have had, some emails and things of24 that nature.25 A. You have -- you -- you just very recently got0018

1 something that -- that corrected the dates. I don't2 know if you were told what happened, but we made --3 Q. Yeah.4 A. -- we made a mistake in sorting within5 itself.6 Q. Can I look at this real quick?

7 A. You sure may.8 Q. And you pointed to and picked up a package of9 documents which, on the top, has an appendix, which is

10 dated August 6, 2014. And this is -- I don't11 understand what you mean by updated. Other than it12 adds -- I guess there are things in red.13 A. The things in red are mostly dates that14 were -- that were -- the dates got sorted, and the15 names of the files didn't get sorted, and so the dates16 didn't match the files. All right? So --17 Q. Right.18 A. We provided you the corrected one. The19 package in your hand has with it a copy of every one of20 the documents we generated in our office that's in that21 table. That package does not include other people's22 work, just ours.23 Q. Right. This packet -- for example, Item 6 on24 the appendix is an email from Mike McDonald to Mike25 Smith. Mike McDonald is the chief guy of my client.0019

1 It's a document created by him. It's not in this2 packet --3 A. It is not.4 Q. -- that's in my hands?5 A. It is not.6 Q. However, it is in your files. And I believe

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0827jharris.txt7 I've been provided that as part of your file, but I'll8 also tell you I know what that is.9 What you're saying is -- letter -- okay.

10 Number 2 is a letter report, and I don't know for sure11 that that is a J.R. Harris report.12 A. No, it's not.13 Q. Right. If it were, it would be in here.14 Since it isn't a J.R. Harris report, it's not in this15 particular packet in my hands?16 A. Yeah. If you turn to page 2 or maybe page 3,17 towards the bottom of the page, there's a heading18 "J.R. Harris & Company." And everything that's listed19 under the "J" is what's in the binder clip.20 Q. Starting at Item 31?21 A. Yes.22 Q. Okay. And that is the packet in my hand,23 which may have been -- well, I think all this stuff had24 been produced before, but it was provided to counsel25 again with this updated appendix within the last couple0020

1 of days?2 A. That's correct.3 Q. All right. So I think I've seen that.4 A. Okay.5 Q. There is a Velo bound thing in there --6 A. That -- that's the letter we -- we wrote.7 Q. Oh, okay.8 A. And this is an appendix to that.9 Q. Right. "This" being that appendix sheet --

10 A. This sheet in the package, yeah. Right.11 Q. Document --12 A. Yeah.13 Q. -- is the appendix to the August 6, 2014,14 report?15 A. Yes, it is.16 Q. All right.17 (Perusing document.)

18 We're going to take a minute -- and I -- we19 may just do it on the record but be kind of casual --20 go through some photographs.21 A. Sure.22 Q. Because, probably, they will be the best I've23 seen. I just kind of want to get an understanding of24 where they -- what they are, where they originated.25 And while I'm doing that, there is a0021

1 photograph on page 16 of 19 of your rebuttal report2 that was prepared for counsel on behalf of Palace Lofts3 that reflects some elements of the construction at 3M4 terrace. Okay. Are you with me so far?5 A. I -- I am. I'd probably want to look at that6 photo myself, too, in order to get the color one up on7 the screen, but -- if that's what you want.8 Q. Well, I guess for starters, can you -- do you9 know when this photograph was taken?

10 A. I can deduce it. This photograph is one that11 I am pretty sure was taken by Ken Cobb during the12 demolition on 3M.13 Q. Now, so --14 A. And --15 Q. -- so that I'm -- I'm with you.16 A. Uh-huh.17 Q. This is a demolition that occurred -- can you

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0827jharris.txt18 tell me when?19 A. I can. I can't tell you off the top of my20 head, but I can get there.21 Q. Well, without a date, let's -- before we go22 to the date, let's start with, whose work was being23 demolished?24 A. McDonald's.25 Q. Okay.0022

1 A. (Perusing document.)2 Q. So I'm clear, that's a 3M photograph, not a3 3L; right?4 A. That's right.5 Q. All right.6 A. That's correct.7 So the first thing I'm going to do is go in8 here and look at the 3M file, and there will be...9 (Perusing computer screen.)

10 There's -- there's a file -- so let me track11 you through this so that when you have the electronic12 file, you can look at the transcript of this and you'll13 be able to track back to it.14 You're going to have a folder that is called15 "2566 Palace Lofts Unit 3L Terrace." That's sort of16 our overall thing. That is the first thing that we17 were asked to look at a particular question for.18 Q. Now --19 A. And these are --20 Q. -- can --21 A. Go ahead.22 Q. Can I stop you?23 A. Yes.24 Q. Maybe you ought to go through it -- or maybe25 you need to go through it. But if you don't mind, I'd0023

1 like to stop you time to time.2 A. That's fine. That's fine.

3 Q. Okay. You said this is your primary file,4 because you were looking at a particular issue. It's5 at 3L. You were first retained -- I'm not quite sure I6 followed you there.7 By whom was J.R. Harris first retained with8 respect to this property?9 A. The first telephone call was from an attorney

10 at Ivan Sarkissian's office.11 Q. Scott Landry?12 A. It might have been Scott, or it might have13 been Ivan. I don't remember who the first call was14 from. I worked with Scott in the end.15 Q. But if it were Ivan, I would think you would16 remember.17 A. It's been several years ago.18 Q. I'm picking on Ivan, as I'm sure you19 understand.20 A. Okay.21 And there was a question about -- there had22 been -- there were water problems in 3L. And there was23 a statement by one expert that thought that the water24 was getting to the top of the slab at a place in that25 unit by coming from the outside through post-tensioning0024

1 ducts -- ducts for the post-tensioning cables.2 That's why they came to me. We have a

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0827jharris.txt3 reputation of knowing a lot about post-tensioned4 concrete.5 Q. This was the theory that because there was a6 wet spot in the center of the master bedroom when7 carpet was removed, the concrete --8 A. Uh-huh.9 Q. -- was wet. And was there -- that's the

10 issue that first brought you to this case; is that11 right?12 A. That is right.13 Q. Someone's theory that water passed through14 the post-tensioned system and then wicked up to the15 floor?16 A. Yes.17 Q. Okay. Were there cracks at that location?18 A. No.19 Q. Okay. And I'm drawing a blank all of the20 sudden as to who it was who had that theory. It was --21 but it was an engineer retained by the owner of the 3L,22 Karen --23 A. Leutenegger.24 Q. Thank you. Because I can never get that25 right.0025

1 Am I right --2 A. It's been enough years, I've got it right3 now.4 Q. Practice, practice, practice. Okay.5 So the time frame is in the context of that6 litigation involving some alleged water intrusion into7 Karen's -- I'm going to say Karen because I'm going to8 get her last name wrong. And it's not out of9 familiarity, but I just can't ever get it right. And I

10 think counsel has corrected me and other people, I11 know, have.12 That was the first call you received on this13 project?

14 A. That's right.15 Q. All right. And it was either from Scott or16 Ivan at McConaughy & Sarkissian's office; correct?17 A. Yes.18 Q. And were you ultimately retained as an expert19 for that litigation with the Unit 3L owner against20 Palace Lofts?21 A. We were certainly retained as a consultant.22 I -- I don't believe I ever testified in -- in that23 litigation, so -- I don't think it was necessary in24 that sense. But we did write reports that would be25 considered opinion reports. Okay?0026

1 Q. Sure.2 And your recollection is, you were not3 examined by deposition?4 A. I don't recall that I was.5 Q. And did you know or are you aware that that6 matter ultimately went to trial?7 A. I guess I 'm not really aware of the details8 of its resolution, no. I -- I don't think I knew it9 was really at trial.

10 Q. So it would be safe to say that you don't11 recall testifying at the trial?12 A. Oh, no. If I testified in the trial, I would13 have remembered. Those are rare.

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0827jharris.txt14 Q. Okay. Now, in connection with your15 evaluation of the theory of water wicking up from --16 A. Post-tensioning tendons.17 Q. The tendon. Thank you.18 -- into the -- to the master in 3L, you19 examined the terrace at 3M?20 A. Yes.21 Q. All right. Can you help me understand --22 and, again, I just -- I suppose I -- if I had a better23 handle on the progression of the opinions in that case,24 I could lead you a little bit.25 But do you have a recollection as to what led0027

1 to the examination of waterproofing repair or2 waterproofing original construction, waterproofing3 issues on 3M -- what led you to look at that from the4 theory that water was wicking up from the5 post-tensioned slab tendon underneath the master in 3L?6 A. Okay. The first thing I did with respect to7 that issue was figure out, could the water actually get8 there via the post-tensioning tendons. And I concluded9 it could not.

10 And I had -- what I did on that was, I looked11 at the original drawings, which were -- the only12 records they had at the time were architectural. But13 on the title page, I could see that the structural14 engineer was somebody I knew, used to work with -- in15 fact, a partner with in another firm years ago -- Steve16 Jirsa at Jirsa Hedrick.17 So I called Steve. Got his drawings for that18 floor to determine where the post-tensioning tendons19 were. There are none there.20 Q. Okay.21 A. It was a farfetched theory to begin with,22 that water would do what they were saying it would do.23 But since there were no tendons in the -- in the24 vicinity, it was pretty easy to say that's not where

25 the water's coming from.00281 Q. Okay.2 A. So then that led to, well, where is it coming3 from? That -- okay. Now, at that time, the4 association had an architect named Larry Jenks, who I5 had known 20, 30 years earlier, working -- 30 years or6 so earlier working on waterproofing issues -- water7 intrusion issues at 3L.8 And Larry and I talked about it a lot,9 consulted with each other. It -- the theory that it

10 was the post-tensioning tendons -- and if you don't11 mind, I'll -- I'll make a sketch. I think it's the12 easiest way to document it.13 If you will, I'm drawing the walls of the14 building here, and I'm going to label Blake Street out15 here. Then I'm going to -- and I'll use a double line16 for that, for the wall of the building.17 So this is 3L, and over here is 3M18 (indicating). And then there's a demising brick wall19 between them.20 Q. Right.21 A. And there is -- I'm going to use a single22 line for the terrace, just to not -- not confuse it.23 There's a small terrace on 3L. There's a bigger24 terrace on 3M. The wet spot is what I've clouded and

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0827jharris.txt25 written "wet" on.0029

1 Now, this is a plan. I'm going to draw a2 section through this part of the structure. And so3 here's the structural slab (indicating). And there4 happened to be a line of columns in this wall. So I'm5 going to use a dashed line to indicate that there's a6 column there. There's a column on -- beyond out here,7 also.8 This terrace has a parapet wall built of9 brick on it that is 8 inches thick, and it's 4 inches

10 sitting on the slab and 4 inches overhanging. And11 there's a steel plate that supports that overhanging12 part that goes on down. There are post-tensioning13 tendons. Not where the wet spot is, but there are14 post-tensioning tendons that -- are not a straight15 line. They're put in the slab in a curve. They come16 out at the edge of the slab, exactly at the mid line.17 Q. Uh-huh.18 A. The slab is 4 inches thick.19 The theory was that water penetrates this20 brick parapet construction. It enters the21 post-tensioning tendon at that location and migrates to22 here, comes up there.23 Q. Finds a crack and wicks?24 A. Yeah.25 Q. How else is --0030

1 A. Yes.2 And the thing is, that that requires the3 water to do some things it really can't do. It4 requires it to have a hydrostatic head out here that's5 higher than the high point of the tendon here, to push6 it up over that hill and back down.7 Q. Sure.8 A. And then magically to come from the lower9 spot up. And that's just not what happens. Okay?

10 Q. Okay. Honestly, I've represented a lot of11 architects and engineers in my life. Fascinating stuff12 for me.13 A. Yes.14 Q. I'm not terribly concerned with the15 resolution in your mind, or anyone else's, of the16 theory of the water coming up through the17 post-tensioned tendons. I'm more concerned about --18 and, again, for me, it's fascinating stuff. I love19 this. But I'm more --20 A. Well, I'm trying to answer your question.21 Q. -- more concerned about, how do we get --22 okay.23 A. All right? And the next couple of sentences24 will get you there.25 Q. Okay.0031

1 A. Okay? So just be --2 Q. Be patient?3 A. Be patient.4 Q. Oh, my gosh.5 A. And I 'm not, so I can understand why you're6 not. Okay?7 So that says there's water here.8 Q. Uh-huh.9 A. It wasn't being generated inside the unit.

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0827jharris.txt10 It's coming from the outside. How's it getting there?11 Q. All right.12 A. There's a brick wall here. This brick wall13 does not hold up the building, but it keeps the weather14 out.15 Q. Right.16 A. It is the closure wall. And -- and the brick17 wall on this building is not the same every place. The18 brick wall along Blake and 15th is a different kind of19 construction than we have here (indicating). This20 brick wall on what I'll call the property line side is21 one thickness of brick, 8 inches nominally. Actually,22 the dimension is about 7 1/2 inches, and it looks like23 a concrete block. It has big, open cells in the24 middle. All right?25 It sits on the concrete slab and goes up0032

1 to -- near the under side of the concrete slab above2 where it is braced by some steel connections. But3 it -- it's not bearing against that slab. Then that4 keeps it from blowing over in the winter.5 Water had to be getting through something in6 that wall from the outside to the inside. Why it was7 pooling there is, that's a low spot in the slab.8 Q. Okay.9 A. All right. So how -- what are the avenues

10 that it can get there? It could come through the brick11 wall. There's a lot of people that have written things12 saying that brick is porous. Brick itself is not13 particularly porous. Brick wall construction can be14 porous.15 Q. Right.16 A. It's the -- it's the seam between the mortar17 joint and the brick where most water gets through,18 unless you have a broken brick with a real crack in it.19 Q. Right.20 A. And it turns out, it's usually not the

21 horizontal joints. It's the vertical joints where22 there is this little tiny separation between the mortar23 and the brick. That's where water -- that -- that's an24 avenue.25 Another avenue is where you have a window,0033

1 the head, the jambs, and the sill, you've got wood,2 aluminum, steel construction for the window frame and3 brick. And the joint between those things is another4 avenue that water can get --5 Q. The intersection of dissimilar materials is6 always --7 A. Yeah.8 Q. -- a source of water intrusion, water9 being --

10 A. Yeah.11 Q. -- the enemy?12 A. Then you've got --13 Q. Right?14 A. -- doors. Same thing as the windows.15 Absolutely.16 Q. Fenestrations?17 A. Fenestrations.18 Q. All right.19 A. So you've got -- you've got the brick wall20 itself. You've got the doors. You've got the windows.

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0827jharris.txt21 And then, realize that this terrace out here is built22 up. The deck is higher than the floor on the inside.23 You remember as you go up a couple of steps to go24 through the door threshold on these -- to -- to go from25 the inside to a terrace.0034

1 Q. Right.2 A. It's not a roll-across threshold at all.3 Q. Right.4 A. Okay?5 So water out here (indicating) is higher than6 what -- than the floor in here.7 Q. Right.8 A. Water on the terrace is a potential source9 also.

10 Q. True.11 The wall system as well as the threshold12 fenestrations --13 A. All of those things.14 Q. All of those things.15 A. And so you asked what -- what led us, then,16 to look at 3M as a source for water inside 3L.17 Q. Right.18 A. And it was the idea that, okay, it could be19 getting through any of those things we just went20 through.21 Q. Right.22 A. All right?23 And given the configuration of things here,24 it could be coming through and getting down to the25 structural slab in this demising fence, if you will,0035

1 brick fence, between 3L's terrace and 3M's terrace,2 traveling on the structural slab.3 It could be coming into the exterior wall of4 3L through fenestrations or through the mortar joints,5 or it could be doing exactly the same thing through 3M.

6 So -- and all of that needed to be looked at7 as to how that water was getting in.8 Q. Okay. At the time of your work, were the9 patio conditions at both 3L and 3M original

10 construction conditions?11 A. No.12 Q. All right.13 A. By the time we were involved --14 Q. There has been?15 A. -- 3M was McDonald's work, not the original.16 Q. Right.17 A. 3L was Eagle's work.18 Q. Right.19 So 3L had already been demolished?20 A. Yes.21 Q. Twice?22 A. Yes.23 Q. Right. Original construction was demoed,24 reconstructed?25 A. Yes.0036

1 Q. And then by -- and your understanding is, by2 McDonald Waterproofing?3 A. Yes.4 Q. And then McDonald's work was then demoed and5 reconstructed by Eagle Construction?

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0827jharris.txt6 A. Yes.7 Q. Okay. 3M was -- original construction was8 demoed, and its condition was -- as it was when9 McDonald completed its work and any other trades may

10 have been called in -- I don't know if there were --11 correct?12 A. Yes.13 Q. Had any work been done on the parapet wall14 caps, to your recollection, at this time?15 A. At 3M, I don't believe any had.16 At 3L, work on the parapet wall cap was17 ongoing, if you will. Design was ongoing by Larry18 Jenks at the time we were first engaged. And then we19 got deeply involved with Larry and with Eagle20 Construction, and it ended up getting -- Eagle's final21 work on that ended up being done according to our22 drawing for --23 Q. Okay.24 A. -- repairing the parapet cap both on the25 terrace wall and on the demising fence, by our design.0037

1 Q. Okay. As I recall, there were metal caps2 ultimately installed?3 A. There was a metal cap flashing underneath4 the --5 Q. Under --6 A. The top brick rowlock looks the same as the7 original construction, but there's a through-the-wall8 piece of metal underneath it.9 And we also did a bunch of stuff to the

10 course of masonry that's immediately beneath that11 through-the-wall metal flashing.12 Q. Okay. Did -- and I 'm getting sidetracked13 here. But did the placement of the metal through the14 wall require the disassembly of the last course of15 brick on --16 A. The top course.

17 Q. Yeah, the top -- I said last -- the top18 course.19 A. And it is the last. I mean, you lay it from20 the bottom up.21 Q. I don't know how you lay brick from the top22 down. I guess you can -- doing it against the wall23 and --24 A. Uh-huh.25 Q. -- somehow pin it.0038

1 Okay. So it's just one course of brick, and2 it's the last course --3 A. Yes.4 Q. -- or top course of brick?5 A. Yes.6 Q. It had to be removed both on the demising7 wall, which is sloped --8 A. It is.9 Q. -- and the terrace walls?

10 A. Yes.11 Q. Under the rails?12 A. Yes.13 Q. Okay. I wish you hadn't said that because14 you distracted me. I've got to get back to where we15 were.16 When you came on and 3L had been demoed and

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0827jharris.txt17 reconstructed by Eagle Construction, had the flood test18 yet taken place on 3L?19 A. Yes. It was already done before we were20 involved.21 Q. Okay. Did you examine the results of the22 flood test?23 A. Yes; mostly by discussion with Larry Jenks24 and with Brian Ziegler.25 Q. Okay. Was there any discussion of the0039

1 failure of that test having anything to do with2 thresholds or other elements of fenestration?3 A. No. That -- that -- the test -- that test of4 failure, actually, was after they decided that the5 water test was successful, and they unplugged the6 drains, and then all of the sudden, it wasn't7 successful.8 Q. Okay. Your understanding of that water test9 is, they filled the tub -- 6 inches? I don't remember.

10 But they filled the tub.11 A. Uh-huh.12 Q. It sat for the requisite period of time.13 They pulled the plug at the -- at -- I guess -- how14 many drains -- there are two drains on 3L?15 A. 3L has only one drain.16 Q. Oh, it has only one --17 A. It's -- it's a small terrace.18 Q. And then that was pulled -- the plug was19 pulled, and then water got into -- well, the test then20 failed?21 A. Yes.22 Q. We had water intrusion into 3L; right?23 That's your understanding. You weren't there.24 A. I think it was below. I think it was below25 into the second story. But I'm not 100 percent sure of0040

1 that. I think that's where the water went.

2 Q. Okay. So it would have been at the lower3 stage if it were a two-stage drain?4 A. Yes.5 Q. To get underneath -- well, hmm, I 've got to6 picture this.7 There is a penetration through the slab for8 that drain; right?9 A. Yes.

10 It -- you know, we should probably go to the11 original source to see what -- and, in fact, I -- I'm12 not positive Larry Jenks was physically there when that13 happened.14 Q. Uh-huh.15 A. But I believe he wrote an account of it.16 Q. Right.17 Do you have that handy?18 A. I'm not sure. I'm just taking a quick look.19 Q. I can look, too.20 A. No, it's not -- there was an email that --21 Q. Right.22 A. -- that Larry sent me that Ken pulled out and23 this -- that's not it. This is much earlier. So let's24 see. Let me just think about that.25 Q. What you're saying is, let's get to that0041

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0827jharris.txt2 A. Yeah.3 Q. We can talk in more --4 A. If you'll -- I -- you'll, I think, be5 thankful for this later on. Let me just finish6 something I started saying earlier.7 Q. Don't distract me.8 A. Yeah.9 When you're going in to find things in this

10 electronic file I have here --11 Q. Uh-huh. Oh, the --12 A. -- you'll find -- you'll find a sub folder13 called "JRH Work." That's this company's work. And in14 there, you'll find a whole bunch of sub folders with15 numbers like 2566.01, .02, .03. The different16 assignments we have here.17 Q. Okay.18 A. And so .01, the 3L terrace was what I would19 call the first investigation. .02, repairs to 3L.20 Eventually, you'll find .08, which is the 3M terrace.21 But it is -- let's see. Then, I convinced myself that22 this file must be organized in a fashion that has --23 Q. That's very dangerous.24 A. Trying to find where Larry Jenks' reports25 are. And if I knew that off the top of my head, I0042

1 would tell you, but --2 Q. April 8, 2011?3 A. That's sounds like a right date.4 Q. I don't know if that --5 A. I just -- I just don't --6 Q. It may not --7 A. Oh.8 Q. Sorry.9 A. Go ahead.

10 Q. I said it may not help you because your file11 isn't going to -- your file date isn't going to match12 the date of the report, but maybe the name of the

13 document is. Let's see if I can find the discussion14 of -- I ought to be able to -- the discussion of what15 the...16 A. I apologize. I -- I -- I should be able to17 lay my hands on the electronic copy of that Jenks18 report, and I have not done so. Ken will probably be19 better at that than me.20 Q. That's all right.21 And I guess my concern was with the -- I've22 got the hard copy here.23 A. Good. Yes.24 Q. We're talking about the flood test. And my25 question -- not really my concern, but my question was,0043

1 if the -- if following the flood test of 3L, the2 manifestation of water intrusion was within the3 interior of the unit below, how it got there, how it4 got through the structural slab.5 I guess I was sort of assuming that the leak6 at the drain was where the lower stage connects to7 the -- to the penetration through the slab and perhaps8 worked its way across the slab and then found some path9 through or around the slab.

10 Are you following what I'm asking?11 A. I am. I am. I am.12 Q. Okay.

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0827jharris.txt13 A. And --14 (Perusing document.)15 Let's see if it mentions this in here16 anyplace. Let me -- I -- I actually don't see it here.17 You asked -- you asked a question that I haven't18 answered: How could it go down versus across?19 Q. Well, it -- I mean, I understand how it could20 go down. My question was more that the flood test --21 the manifestation of the -- of the intrusion of water22 into the interior spaces, based on your recollection,23 was in the unit, the enclosed space below Karen's unit,24 rather than on the surface of the floor of Karen's25 unit.0044

1 And as I understand the interior construction2 of her unit, we have flooring on the post-tensioned3 slab rather than an elevated structural floor over the4 top of the post-tensioned slab; right?5 A. That's right. I mean, there are -- in most6 of the units -- and -- and some of this flooring had7 been removed from the Leutenegger unit when I was in8 there.9 Q. Right.10 A. In the bedroom.

11 Q. That's right.12 A. But most of the units, it is a13 tongue-and-groove, finished wood flooring installed on14 what I'm going to call sleepers, little strips of wood15 that elevate it just slightly.16 Q. It's not really a structurally elevated17 floor?18 A. No, it's not.19 Q. Right.20 And so here's where I am: The water intrudes21 into the interior space but does not manifest itself on22 the surface of her floor; rather, it has passed through23 to the unit below.

24 A. No, that's not where I --25 Q. Okay.0045

1 A. I didn't mean to -- I did not mean to imply2 that it -- that it went to the unit below from her3 unit. If it went to the unit below -- so I've drawn4 just a partial sketch here in which this is the5 concrete structural slab. That's the lower part of the6 drain assembly, and this is the masonry wall7 (indicating).8 Q. Right.9 A. And if it went to the unit below, the path

10 would have been water going around through like this11 (indicating).12 The way these drains are usually -- they13 usually don't have the drain on hand. They can -- they14 will usually form a round hole through the full15 thickness of the concrete slab.16 Q. Sure.17 A. But then they'll have to come back and do a18 little chipping to fit the bowl in at the top.19 Q. Sure.20 A. So this is not watertight here.21 Q. Right.22 A. Okay?23 And so if there is a failure in the

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0827jharris.txt24 connection between the membrane and the bowl --25 Q. The lower bowl.0046

1 A. The lower bowl.2 -- water can get around here and go down.3 That's what I thought had happened. Now, I4 don't -- but like I said, I wasn't there, and I didn't5 even interview the people who did it.6 Q. Time out.7 The lower space below that drain is not8 another terrace; it's just --9 A. It's interior.

10 Q. It's interior space?11 A. Yes, it is.12 Q. All right. So -- okay. All right.13 A. Yeah. Yeah.14 Q. All right.15 A. And, you know, this would have some sort of16 an elbow. I'm sure it doesn't go down straight.17 Q. Right.18 A. Yeah.19 Q. I believe -- and it may be through the20 penetration itself that the drain at the bottom of the21 bowl fits into drain piping that is -- that was22 installed at the time that the post-tensioned slab was23 poured?24 A. Yes -- well --25 Q. Okay.0047

1 A. Yeah.2 Q. Or --3 A. A hole was formed when the post-tensioned4 slab --5 Q. Right.6 A. -- was poured. Then a plumber put a drain in7 the hole.8 Q. Right.

9 And then this two-stage drain, the lower10 bowl, would fit inside. And as long there's not an11 obstruction somewhere down the line that backs water up12 into that bowl and around --13 A. Yeah.14 Q. -- presumably, the water finds its way to --15 A. Yes.16 Q. -- to the --17 A. Yes.18 Q. -- to the greywater system --19 A. Yes.20 Q. -- of the City of Denver?21 A. And so -- you know, there's a pipe -- up here22 someplace (indicating), there's the actual grate that23 you see when you're walking on the wearing surface.24 And, you know, there's concrete wearing surface --25 Q. Right.0048

1 A. -- drainage course, membrane insulation, all2 sorts of stuff between here and there (indicating).3 And when the drain was plugged, there was water up here4 (indicating). I'll just use a little triangle --5 Q. You're drawing it above the top stage of the6 two-stage drain, the first --7 A. I am. Yeah. Right.8 When there was a water test -- a flood test

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0827jharris.txt9 going on, it was up here. It was plugged up here.

10 Then the plug was removed. So this water now starts11 flowing down through here.12 Q. Right.13 And when it was plugged, we didn't have any14 evidence of the failure of the first stage?15 A. That's right.16 Q. And when it was unplugged, the conclusion17 was -- and I think perhaps rightly so -- that there was18 a failure of the second stage.19 A. Yeah.20 Now, these two-stage drains, they have --21 this -- this pipe has -- and there's photographs of22 this kind of thing. We can look at it. I've drawn too23 much of a dish to this bowl. There's not that much24 vertical space there.25 Q. I understand.0049

1 A. But there's a hole here. You know, there's a2 few holes around the perimeter of the pipe.3 Q. Uh-huh.4 A. And that's where water that comes in on the5 membrane gets in and goes down the drain system.6 Q. To the bottom of the first stage into the7 bowl and through the second stage?8 A. So if you -- if you imagine you're -- you all9 of a sudden impose a lot of water on this system, this

10 volume that's on the terrace. And we don't have a pipe11 that's just going straight down and flowing out.12 There's a horizontal bend, and water flows slower on13 a -- in a -- in a near horizontal pipe than it does14 straight down vertical.15 So all of a sudden, there's a little bit of a16 hydrostatic head, which would not be normal --17 Q. Right.18 A. -- normal conditions.19 And that pushes water out these holes, and it

20 found what amounts to a flaw, and it leaked.21 Q. And that flaw would be in the -- the lower22 bowl and its integration with waterproofing23 materials --24 A. Yes.25 Q. -- on top of the post-tensioned slab?0050

1 A. Yes.2 Q. Okay. Now, when this water test was done, it3 was done following Eagle Construction's work; right?4 A. I think so.5 Q. Okay. Now, in your original report, there is6 noted that the actual Zurn two-stage drain that was7 installed was not the one that was specified in the8 engineering drawings for the remediation or the9 reconstruction of the terraces by Bornengineering;

10 right?11 A. That's right.12 Q. Okay. And are you -- have you -- since 201213 when you wrote that report, have you since learned of14 the circumstances that led to a substitution for a15 second Zurn two-stage drain for the one originally16 specced?17 A. My understanding is this: McDonald18 determined that the specified drain would require more19 chipping of concrete to place the bowl in that -- in

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0827jharris.txt20 that slab, and so he substituted a different drain. I21 have never found anything other than testimony, you22 know, that says that. I -- I never found an RFI during23 construction or a change order --24 Q. Sure.25 A. -- or an approval from Borne that it was okay0051

1 to do that.2 But the substituted drain did have a path for3 the second -- of the lower level of water to get out.4 It does.5 Q. Right.6 A. It's not the same as Borne specified, but it7 has a way for the water to get out.8 Q. And I think that that -- that the issue --9 well, I mean, I don't know if you've done the

10 computations of the capacity of the drain that was11 actually installed by McDonald, and I -- like you, I12 don't see an RFI. I don't see a request or a change13 order. I don't see a documentation of the conversation14 between the plumber who installed it on behalf of my15 client and any representative of Borne.16 But you haven't done any computations that --17 or you -- at least not disclosed any computations of18 any capacities of that substituted drain with which --19 I mean that you have criticized, this capacity is20 insufficient given original construction and the21 pathway provided for drainage after and below the22 post-tensioned slab.23 Do you follow me?24 A. Yeah. Let me state my answer and -- and see25 if I am actually answering the question you are asking.0052

1 Our original criticism of the drain that2 McDonald installed was based upon what we learned from3 Brian at Eagle Construction. That's before we actually4 knew the model number.

5 Q. Right.6 A. And it turns out, that the model number that7 was actually installed -- so in 2012, we thought what8 was installed was something that had no -- I'm going to9 call them weep holes -- at the lower stage.

10 Q. Wasn't truly a two-stage drain?11 A. Right.12 And if -- and if there were no holes at all,13 then it's bad. All right?14 We've since learned what model was actually15 installed. There are weep holes. It doesn't take much16 capacity to drain water off the membrane. It -- the17 capacity calculation is for the primary stage up at the18 topping.19 Q. Right.20 And there's no criticism of the capacity that21 was actually ultimately utilized?22 A. There's not. The criticism is the marrying23 of the membrane to the flange.24 Q. Okay. The membrane to the flange of the25 second-stage lower bowl?0053

1 A. Yes. Absolutely.2 Q. Okay. With you so far. I think we're still3 on the same page.4 Now, I guess we don't -- we don't really have

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0827jharris.txt5 a criticism of the selection of the actual two-stage6 drain that was utilized by McDonald in its7 reconstruction of the terrace on -- the terraces, I8 guess.9 A. It's mostly a formality. It would have been

10 good to have documented, "We're going to substitute11 this for that, Mr. Engineer. Is that okay?"12 Q. If we're right and there is no RFI, no13 supplemental instruction, no change order request and14 change order entered, we may have a technical failure15 of the process?16 A. Yes. That's all.17 Q. The process of change, approval, construction18 substitution doesn't necessarily equate with a19 deficiency in either design or construction?20 A. That's correct.21 Q. Okay. And that's what we're left with with22 respect to the actual drain that was used, is simply a23 failure of the process of construction and getting an24 approval; right?25 A. Yes.0054

1 Q. We don't have a --2 A. Yes.3 Q. -- problem with -- I'm sorry.4 We don't have a problem with the product5 itself; correct?6 A. No. The product will work when it's properly7 installed.8 Q. When it's properly installed?9 A. Uh-huh.

10 Q. And the flood test -- all of a sudden,11 I've -- the flood test was on 3?12 A. L.13 Q. 3L. It was 3L?14 A. 3L.15 Q. Okay.

16 A. You'll see that we ended up deciding there17 was no need to flood test 3M after we -- after 3L had18 been flood tested.19 Q. Let's save that thought for just a moment.20 A. Okay.21 Q. And I've got to remember, 3L is Karen's unit,22 not 3M?23 A. That's right.24 Q. 3L was the one that had been reconstructed25 twice?0055

1 A. Yes.2 Q. After original construction; correct?3 A. Yes.4 Q. And the flood test was after the second5 construction; correct?6 A. I believe it was. I'm not 100 percent sure.7 Q. Well, assume with me for the sake of the8 question, and hopefully not argument -- and if I do9 argue, I'll expect I'll generate an objection -- that

10 this flood test was performed after the demo of11 McDonald's work and reconstruction by Eagle.12 A. Yes.13 Q. Right?14 A. Yes.15 Q. Now, the -- you reviewed the -- Jenks' plans

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0827jharris.txt16 for the work that Eagle did on 3L with respect to17 demolition of the terrace constructed by -- the terrace18 waterproofing system constructed by McDonald and19 reconstructed by Eagle; right?20 A. Yes.21 Q. Those plans, I can't recall how specific they22 are with respect to the drain issue, but they -- but23 the process of demolishing McDonald Waterproofing work24 and redoing it would, by necessity, require the25 disassembly of the first stage of the drain and then0056

1 its reassembly on reconstruction or replacement2 altogether of that two-stage drain; correct?3 A. Well, yes.4 So I actually want to make sure that -- I5 want to do what I can. He has a -- I realized I should6 have gone to the front where he has a table of7 contents. "He" being Larry Jenks in his report.8 Q. Right.9 A. And he has in here a Section 6, beginning,

10 coincidentally, on page 6, at which he gives a11 chronology of what he understands had been going on.12 Q. Do you mind if I look over your shoulder?13 A. Not at all. Yeah.14 Q. Okay. And so he --15 A. The first thing he lists was in 2008 that16 Stefco caulked the perimeter of the topping slab on the17 terrace at 3L.18 Then in that same year, McDonald removed19 concrete around the drain, a 2-foot-square section, and20 installed a waterproofing patch within that section.21 And that was in September.22 Okay. There was a 24-hour water test23 performed by Borne. It was not successful. That would24 say that that test was done on whatever was in place in25 2008. That's not -- that's definitely not Eagle0057

1 Construction. And that's -- that one is not McDonald's2 either other than just this patch.3 Q. With the exception of the 2-by-2 section?4 A. That's right.5 Q. Right.6 A. It was decided to replace -- and this says7 there's two terrace drains. I swear I thought there8 were two on 3M and one on 3L, but Larry may be right9 here. Hmm.

10 By October 18th, both drains had been11 replaced and the water test proved successful. Okay.12 Then, in 2009, there was a redo on the perimeter caulk,13 and that was by a contractor called Stefco.14 Q. Right.15 A. In 2010, Borne wrote a report on their16 findings and -- with respect to water damage at 3L.17 They thought there were four sealant joints in the18 metal flashing, gaps around the doors and the -- that19 was -- that what they found. Okay.20 They actually cut out a 4-foot-by-4-foot21 section of the topping all the way down to the22 membrane, and they had discovered damage to the23 membrane that probably had occurred during the original24 construction of the building. So -- old source of25 leaks.0058

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0827jharris.txt1 Q. Okay.2 A. They concluded by recommending that the 3M --3 3L terrace needed to be -- everything above the4 structural slab needed to be torn out and redone.5 Okay?6 Q. Uh-huh.7 A. That project was done in 2010. The8 contractor was McDonald. According to Larry's word,9 the record gets murky at this point.

10 Q. I like that line.11 A. I did too. Yeah.12 He couldn't find bid documents. That's13 neither here nor there. All right.14 Leaks continued after that remediation15 according to Gene Budler. Gene Budler is a consultant16 retained by Karen Leutenegger as to why her unit was17 still seeing leaks. Okay.18 Site inspection in 2011 that -- this is when19 Larry first gets involved. I'm trying to -- I'm trying20 to skip through to where there is a water test, if --21 another one. Okay?22 Q. Right.23 A. And -- and he -- he is pointing out that24 there's precious little vertical clearance between the25 topping slab and the -- and the doorsill to have a nice0059

1 waterproofing job there.2 Q. Right.3 A. And then he offers a bunch of opinions.4 And -- okay.5 So then following that, he has drawings of --6 of how to construct an insulation, waterproofing, and7 topping slab system for that terrace. It's in an8 opinion report. And he found other issues. Okay?9 Let me back up for just one second. This

10 report that we are going through is an April 8, 2011.11 Q. Right.

12 A. Okay. A report from Larry Jenks. I think13 this report is before then the second reconstruction.14 Okay? This recommends the second reconstruction.15 Q. Going through it in this manner, I believe16 that is -- I believe that to be the case. And that17 would explain why I struggled to find reference to the18 water testing in that report.19 A. Yeah.20 Q. Let's go back to -- so let's go back to -- we21 assume that following the issuance of this report,22 Eagle Construction undertook to demolish and23 reconstruct the terrace at 3L in accordance with Larry24 Jenks' report?25 A. No. Who did you say did that?0060

1 Q. Eagle Construction.2 A. Eagle, yes. I -- I heard McDonald. You said3 Eagle. Eagle did, yes.4 Q. Yeah. Eagle undertook to demolish McDonald's5 work?6 A. Yes.7 Q. And reconstruct or rebuild a terrace8 waterproofing system in accordance with Larry Jenks'9 recommendations as contained in the April 8, 2011,

10 report.11 I believe the documents will bear this out.

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0827jharris.txt12 But the water test, if you'll just assume for me, was13 conducted following Eagle Construction's demo of14 McDonald's work and rebuild of the terrace15 waterproofing system at 3L.16 A. I think you're right, too.17 Q. Right.18 A. We haven't found the actual paperwork, but I19 think you're right.20 Q. And we can, but -- I'm going to -- you drew21 us a -- you made us a drawing early on when we were22 talking about the post-tensioned slab and the water --23 and the theory of the water coming up through the --24 MR. ROUNSBORG: I've marked that as25 Exhibit 1.0061

1 (Deposition Exhibit 1 was marked.)2 Q. (BY MR. ROUNSBORG) I am going to mark this3 next thing you just drew as Exhibit 2. And this is a4 cross section of --5 A. A drain through a slab.6 Q. Yeah. Two -- a two-stage drain through slab.7 A. Right.8 (Deposition Exhibit 2 was marked.)9 Q. (BY MR. ROUNSBORG) I've got a blue pen, and

10 I'm going to put an arrow where we discussed how the11 path of water may go outside the drain into a lower12 unit, with the blue pen.13 And one way that can happen is, water pushes14 out through the holes in the top stage, finds its way15 around the flange of the lower stage. Because if it16 comes up out of the bowl, there is not a good seal of a17 waterproofing material to the flange of the lower18 drain.19 A. There wasn't, yes.20 Q. There wasn't, right.21 And this explains why, when the plug is22 pulled from the top, which I've marked with an "x,"

23 that water then flows down. We've got a lot of water.24 We've got some hydrostatic pressure, and it will push25 water up out of that bowl and around the flange and0062

1 into the interior space of the unit below the terrace.2 If there's a failure of seal between a3 waterproofing material at the level of the concrete4 slab where the bowl sits down on it, we're going to get5 water in there; right?6 A. Yes. And --7 Q. Okay. I'm going to hand you back Exhibit 28 with my "x's" and arrows.9 A. So that -- that -- the discussion was, the

10 hydrostatic head can force water out through here.11 Q. Right.12 A. If there's not a good seal between the13 membrane and the bowl, water can get under the14 membrane. Once it's under the membrane -- one of the15 places it can go is through the hole in the slab.16 Q. Right.17 A. The other place it can go -- it can go along18 the slab surface --19 Q. It -- it --20 A. -- to some other place, including inside.21 Q. Through the exterior wall of Karen's unit22 into her living space?

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0827jharris.txt23 A. Yes, it can.24 Q. Right.25 What we observed or what you understand was0063

1 observed was water down below --2 A. That's what I understand.3 Q. Right.4 A. Yes.5 Q. Which is not a failure of the selection --6 we've already covered that -- of a substitute two-stage7 drain, but of, perhaps, that element of construction8 and proper seal between the membrane at the lowest9 level of the terrace construction and the flange of the

10 lower portion of the drain?11 A. Yes.12 Q. Second stage?13 A. Yes.14 Q. Okay. Now, in order to utilize that drain in15 reconstruction, McDonald would have removed16 the uppermost level -- well, they remove everything17 from the post-tensioned slab to the surface of the18 terrace. That's the demo part; right?19 A. That is.20 Q. And that would include, to the extent21 necessary, the removal of any waterproofing membrane at22 the level of the post-tensioned slab?23 A. Yes.24 Q. And then reconstruction would require that25 you ensure that that second stage of the drain is0064

1 properly placed in the penetration through the2 post-tensioned slab; right?3 A. Yes.4 Q. Okay. And then it would require the5 application of any waterproofing membrane at that6 level, that is, the lowest level of the reconstruction7 of the terrace, that being the post-tensioned -- top of

8 the post-tensioned slab.9 A. Yes.10 Q. Okay. And as part of that, there has to be a11 proper integration of that membrane, whether12 liquid-applied or otherwise, to the flange of the lower13 stage -- the second stage of the two-stage drain;14 right?15 A. And Borne had a detail exactly for all of16 that.17 Q. Right.18 So that we can, to a reasonable degree of19 engineering certainty, say that if this water passed20 around the back side of the second stage into the21 living space of the lower -- of the unit below, because22 a failure of integration of the bottom level of23 membrane at the post-tensioned slab level to the flange24 of the second stage, that that's not McDonald's work at25 this point, if that flood test was done after Eagle's0065

1 demo and reconstruction. True?2 A. With all those ifs, I agree with that.3 Q. Okay. Did you examine the flashing on the4 exterior walls at 3M and 3L, the lower flashing at the5 terrace level? And I think we can identify that as6 somewhere between 2 and 4 courses of brick above the7 surface of the terrace.

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0827jharris.txt8 Do you know what I'm talking about?9 A. Yes, I do.

10 Q. Okay.11 A. There's a metal cap flashing that goes into12 a -- in a mortar joint.13 Q. Right.14 A. And then there's a fairly complicated15 two-piece counterflashing that -- that fits underneath16 that and comes basically down to about the slab surface17 and -- yeah. The number of courses of brick we18 miscounted early on, and we arrived at a conclusion19 that -- that we then wrote -- in terms of number of20 courses of brick and where things were.21 But we've since concluded, yeah -- no, that's22 actually -- there's three courses there, not two,23 behind all that metal.24 Q. Right.25 A. So there's five courses of brick from where0066

1 the reglet is down to structural slab.2 Q. Down to the structural slab?3 A. Yes.4 Q. How many courses is there from the bottom --5 is that -- the reglet is -- it provides us the lowest6 level of that flashing?7 A. The reglet is actually at the highest level.8 Q. Oh, it's at the highest level. Okay. I'm --9 A. So that's 20 inches from there down to the

10 structural slab.11 Q. And there was a computation of the thickness12 of the construction of the terrace surface. And we, I13 think, all know that the elastomeric liquid-applied14 membrane was not applied up the --15 A. Up the brick.16 Q. -- up the brick to a point where we would17 have a proper lap of the flash over -- over that;18 right?

19 A. That's exactly right.20 Q. Okay. I do not see in your reports any21 analysis or evaluation of any damage that may have22 resulted from that condition. And we're kind of23 skipping a point here, and we can back up for the24 record and cover it.25 The Bornengineering plans called for0067

1 application of the liquid-applied membrane up the2 course of the brick underneath the flashing?3 A. Yes, he did.4 Q. All right. Would you -- all right.5 You're not a contractor. You're not6 responsible for means and methods of construction.7 There's a whole host of people out there in the world,8 as I'm sure you well know, who can't grasp that9 concept.

10 Having said that, you are familiar with some11 basic issues of means and methods of construction. Is12 that fair to say?13 A. Yes.14 Q. All right. With respect to the application15 of a liquid-applied membrane in these circumstances,16 with those elements of existing construction, would you17 agree that flashing would have to be removed for that18 liquid membrane to be applied to sufficient height

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0827jharris.txt19 to -- to --20 A. To lap.21 Q. Yeah, lap.22 A. Yes.23 Q. Lap.24 A. Borne's drawing essentially required that.25 It -- so it goes -- the means and methods ends up0068

1 coming down to how you implement the requirement on2 Borne's drawings where he pointed to the metal3 flashing. And he basically said metal flashing4 equivalent to what's there now.5 He didn't say leave it in place throughout6 the whole process, but it almost looks like that's what7 did happen, because the -- the liquid-applied stuff8 does not go above the bottom of the metal flashing.9 And some of the original EPDM sheet goods membrane that

10 was put in during the first construction of Palace11 Lofts was left there, and it was cut off at about the12 bottom of that metal flashing. That was the original13 membrane wrapping up under that flashing.14 Q. Right.15 A. And there was no marrying between that EPDM16 and the liquid-applied. It -- they don't bond together17 anyway.18 Q. Right.19 A. And so means and method -- the -- how you20 take that metal off is a means and method issue. Do21 you take it off carefully enough that you put the same22 stuff back on, which Borne permitted, or do you rip it23 off and put in some new, which Borne also permitted,24 but he said it's going to have to be equivalent to25 what's there now?0069

1 Q. Right.2 A. Honestly, it looks like the method that was3 chosen didn't satisfy the engineering design.

4 Q. It would appear, would it not, that the5 flashing, in fact, was simply not removed?6 A. Yes.7 Q. And it would appear to you that in order to8 accomplish the goal of application of a liquid-applied9 membrane to a sufficient height to allow appropriate

10 lap, top over bottom, top flash over bottom --11 A. Membrane.12 Q. -- membrane, that that flashing, in fact,13 would have had to have been removed?14 A. Yes.15 Q. Okay. And either replaced or perhaps --16 A. Or --17 Q. -- reinstalled or perhaps replaced with --18 Let me ask you this: A better -- the better19 choice would have a different flashing than what was20 there. Would you not agree?21 A. The metal?22 The detailing of the metal at the corners was23 not great. So a better choice might have been24 something that had a formed joint at the corner.25 Q. Right.0070

1 A. Yes. And I think Larry goes into that in2 some detail.3 Q. Neither here nor there. If it were never

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0827jharris.txt4 removed in the first instance to allow application of5 liquid-applied membrane to sufficient height so that6 the flashing would lap over; right?7 A. I'm sorry. I guess I missed the -- the8 fundamental aspect of -- what was the question part of9 it?

10 Q. It doesn't matter whether you put the old11 stuff on or new stuff, if you're not --12 A. If you --13 Q. -- applying the membrane to a sufficient14 height to allow it to lap over the top of that membrane15 anyway?16 A. That's true.17 Q. Okay. What did we say? The top of the18 flashing is how high off that -- the post-tensioned19 slab, top surface?20 A. Five courses of masonry, which on this --21 this area is 20 inches.22 Q. Twenty inches.23 And then from the flashing up, aside from24 fenestrations, we have however many courses of brick to25 the next level; right?00711 A. Oh, yes.

2 Q. Okay.3 A. Yeah, there's -- I think the story-to-story4 height is 10 feet. I'm not positive on that. And the5 slab thickness is 8 inches.6 Q. Okay.7 A. And so that's -- there would be 28 courses8 overall, which means there would be another 23 courses9 above that reglet.

10 Q. I had a conversation with a representative of11 your client or -- of your -- of the HOA with respect to12 an early discussion of the order in which certain13 elements of construction were placed by McDonald.14 I believe that the record that has been

15 developed since 2012, in fairness to you, will reflect16 that membrane -- the membrane that was to be at the top17 of the -- over the roof board -- foam -- I think the18 foam board insulation -- well, I know it was a foam19 board insulation.20 A. It was a foam board -- yes. Go ahead. I'll21 let you ask the question.22 Q. Yeah.23 There is a discussion in 2012 that that24 membrane that is supposed to be over the top of the25 roof board, and rigid foam insulation was not applied0072

1 there but rather was applied directly on top of the --2 A. Post-tensioned slab.3 Q. -- post-tensioned slab.4 A. Yes.5 Q. Do you recall that --6 A. Yes.7 Q. -- that discussion?8 A. Yes.9 Q. And, in fact, membrane was placed properly in

10 order -- in accordance with Borne's plans on top of the11 roof board and rigid foam insulation. Have we resolved12 that issue? It's no longer --13 A. Yes. And I don't think we implied --14 hopefully, we didn't write it -- that it was -- if it

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0827jharris.txt15 was actually -- if, for instance, the membrane had16 actually been applied to the structural slab itself,17 that's not contrary to a lot of common practice.18 Having insulation over the membrane does some good19 things. Having, in this instance, the tapered20 insulation under the membrane puts the membrane on a21 slope.22 Now, I'm a fan of both things. I like the23 membrane on a slope, and I like the insulation above24 the membrane. And to get there, you have another stage25 of construction. But let's not go there. That's0073

1 something we recommended for long-term durability, the2 best we could think of. All right.3 We thought that it wasn't done the way4 Borne's drawing shows. I think it was with respect to5 the order of the application. Structural slab is6 there, insulation tapered, a fiberboard, roofing board,7 liquid-applied membrane applied to that, a dimpled8 plastic drainage layer, a -- a sheet of filter fabric9 that covers that. And then over that, the concrete

10 topping.11 Q. Right. Okay.12 Yeah, I just wanted to make sure, because I13 think in everybody else's view, that the question of14 whether or not that membrane was probably placed in15 location as detailed by Borne, I think, was pretty much16 dead on. It was two years ago and a completely17 different set of circumstances. So I appreciate that.18 Do you have any knowledge that McDonald --19 and I understand it's going to be secondhand, but20 that's the nature the beast for you -- that McDonald21 actually undertook to remove any of their work on the22 parapet wall caps?23 A. I don't have an understanding that McDonald24 did, but I don't have an understanding that they25 didn't --

00741 Q. Okay.2 A. -- go back and redo anything. I -- I don't3 know.4 Q. All right.5 (Discussion was held off the record.)6 (Break taken from 10:34 a.m. to 10:50 a.m.)7 Q. (BY MR. ROUNSBORG) Mr. Harris, when were you8 made aware that -- well, let me first say, you were9 initially disclosed as a nonretained witness in this

10 case in the initial disclosures. Were you aware of11 that?12 A. I can't say that I was, no. I don't think I13 looked at many of the legal filings, if at all.14 Q. A number of your reports and correspondence15 were identified in expert disclosures which were16 prepared in 2012 and 2013, the latest being17 February 1st. And they were -- while we had seen all18 this stuff before, they were disclosed to us as the19 part of the expert disclosures and what you would be20 testifying to on the 2nd of June this year.21 Did you have discussions with counsel who22 sits here today and/or anybody at Palace Lofts about23 providing expert services in this litigation prior to24 June 2nd, 2014?25 A. I was aware that -- well, you know that I was

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0827jharris.txt0075

1 on a walk-through in which Mike McDonald was present2 and we walked around looking at various issues,3 specifically the 3M. I discussed with him what I4 thought needed to be done.5 And then I was aware that following that,6 negotiations were not successful and that a claim was7 filed. I knew there was a lawsuit.8 Now, remembering whether I was asked, could I9 testify or not, I don't -- I don't remember that.

10 Q. Well, you opened files following11 communications with either Scott Landry or Ivan12 Sarkissian at McConaughy & Sarkissian; right?13 A. Yes.14 Q. And in connection with that work --15 A. Oh, I was asked if I could testify on that 3L16 lawsuit, the --17 Q. With Karen?18 A. Leutenegger versus the HOA. Yes.19 Q. Right.20 A. Yeah, I was asked about that. I thought you21 were talking about this lawsuit. I'm sorry.22 Q. I am. I'm trying to piece together just the23 relationships with the litigation that J.R. Harris has.24 And my understanding is that you were retained by25 McConaughy & Sarkissian to provide services in0076

1 connection with the Leutenegger lawsuit.2 A. Yes.3 Q. All right. And while I would imagine your4 agreement was with McConaughy & Sarkissian, did you5 have an understanding that you were retained by that6 firm with the approval of the insurance company?7 A. You know, I don't think I did. Insurance8 company? I do know that it was with the approval of9 the HOA.

10 Q. Okay.

11 A. Okay?12 Q. Okay.13 A. Yes.14 And that in -- in reality, we took some15 direction from Scott Landry and his assistant Sarah,16 whose last name just escaped me, and we also took17 instruction from the management company that the Board18 was then using, which was St. Charles Town Company.19 Q. Right.20 A. Two or three different people there. The21 most recent one was Beth Amore, I think.22 Q. Okay.23 A. And we took direction from James and -- and24 the Board. And so the -- it -- I'll have to say that I25 was then aware that the Board changed management0077

1 companies at some point in time. I wasn't aware that2 that also involved a change in -- in attorneys until3 not all that long ago. A couple -- maybe -- maybe in4 June of this -- of this year. And I just met Wendy for5 the first time this morning.6 Q. Okay. You're sitting here today -- and you7 prepared some things this summer on behalf of Palace8 Lofts?9 A. Yes.

10 Q. You had an agreement back in 2012 withPage 32

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0827jharris.txt11 McConaughy & Sarkissian; right?12 A. Yeah. There was an email exchange of some13 kind, yes.14 Q. Right.15 You know, whether it was a signed retainer16 agreement or whatnot, that's who you were retained by17 for those specific services; correct?18 A. That's right.19 Q. All right. As you sit here today, have you20 been retained separate and apart from that retention by21 McConaughy & Sarkissian?22 A. Yeah. Early on, as we started looking at the23 request of St. Charles Town Company and the Board and,24 I think, primarily, St. Charles, we -- we asked the25 question: Do you want all of this to follow the same0078

1 building protocol as the 3L claim? And the answer was2 no.3 Which is why this file has several4 subdivisions. That -- that comes from our accounting5 system primarily. And so -- there's 10 different6 accounts in the accounting system here. And we -- what7 we tried to do was, everything that was specific to a8 given unit, that -- that justified setting up a new9 account -- and that instruction was from St. Charles

10 and the Board, not from McConaughy & Sarkissian.11 Q. Okay.12 A. So there's nine of them, if you will, that13 have to do with St. Charles and the Board and one of14 them having to do with -- the very first having to do15 with McConaughy & Sarkissian. Then -- we -- we created16 one of them as general, because there were things that17 you could not tie to one specific unit. And it18 primarily was our design of a -- a revised detail for19 dealing with water infiltration into the cap on the20 parapets of the terrace walls, something a little less21 Maserati-like than the detail used at Unit 3L.

22 Q. Okay. Since June, do you have a new23 agreement with anybody with respect to the work you're24 providing?25 A. No.0079

1 Q. Since June, who are you billing?2 A. The HOA.3 Q. Okay. Let's take the view and -- you have4 color pictures -- and you've got your system set up.5 If you can put them up on the screen. And I understand6 that that --7 A. This one is for you.8 Q. -- thing -- that thing that you're --9 A. And I'm making one for Wendy.

10 Q. Thumb drive, I guess.11 A. Yes.12 Q. Is for me?13 A. It is.14 Q. And that will contain some of the photographs15 that you can show on the screen here.16 A. Yes, they -- it does.17 Q. Can we take some time and just sort of look18 at -- I don't know how many photos there are, but -- I19 don't know how they're organized, and I don't know how20 to ask you to walk through them with me.21 A. Okay. So --

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0827jharris.txt22 Q. Are they, by chance, chronological?23 A. Many of them are.24 So for instance, in this place that we are25 right now -- and I can get that out of the way -- there0080

1 are a large number of folders of photos. Within a2 folder -- where we took it, it just has photos and a3 year, month, date. All right? And all the photos in4 that file will have been taken on that day.5 Q. Okay.6 A. In some instances, it -- it has an additional7 identification as to what unit it has to do with.8 Q. Right.9 A. Because we were, perhaps, in more than one

10 unit that day. It doesn't -- anyway.11 Q. Okay.12 A. Then there are other files in here where we13 didn't take the photos.14 (Viewing computer screen.)15 And so "3L Demo by Brian," that's Brian16 Ziegler. "Photos by Brian Ziegler." Photos by Karen17 Leutenegger -- or "K. Leutenegger."18 "Photos of Drains," now, that one is one --19 we may have to ask Ken where all of those came from.20 "Sealant Test," that's one of ours, and it was over21 multiple days. And then some other units that we took22 photographs of.23 Now, pertinent to the claim on this one,24 probably the -- it turns out that -- I need to tell25 you, unfortunately, not all the photos are actually in0081

1 this big folder called "Photos."2 Q. Uh-huh.3 A. Some of them are buried under "JRH Work" and4 "3M Terrace."5 Q. Okay.6 A. And we go to this -- "3M Terrace Demo

7 Photos," there are the -- there are two sets of photos8 in here and -- and this one -- you have to pay9 attention to the date taken. October 11th of 2011.

10 And then that is -- that is a demo taken by11 someone of an earlier demolition, not the demolition of12 the 3M terrace.13 The December 8, 2013, that is the demolition14 of 3M terrace, and those photos were taken by Ken Cobb.15 And so I'm going to open this up, and you16 may --17 Q. That's a good spot.18 A. And so they're just beginning --19 jackhammering into the top of here.20 Q. Okay.21 A. And it was December. You can see the guys22 are dressed warmly. And --23 Q. Well, Denver has --24 A. Wonderful --25 Q. -- a moderate climate. Yeah.0082

1 A. Yeah. Right.2 Q. Can we walk through a few of these?3 A. Yes. Yeah. Yeah. There are some things4 that I do think you should see.5 (Viewing computer screen.)6 Here, Ken is measuring the thickness of the

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0827jharris.txt7 topping and -- there's another later photograph that8 shows that it's about 4 and a half inches thick. It --9 Q. Okay.

10 A. It's plenty thick.11 This is the -- the fabric part of the12 drainage assembly. The drainage assembly is a dimpled13 plastic sheet with a fabric on it. The fabric on it is14 to keep the concrete from filling up the dimples --15 Q. Right.16 A. -- so that the water can run between the17 dimples.18 Another photograph of the same thing. And19 actually, it may be -- it's slow because it's also20 copying to this little disk. Let's -- let me do21 something else here. Let's --22 Q. Now, before we -- okay. Some thumb nails.23 Yeah, just scroll through that real quick.24 A. Well -- yeah, I'm going to get back down to25 the -- the point we were looking at. Let's see. I've0083

1 go to make sure --2 Q. Got it. DSC. DSC. DSC. Okay. We -- there3 we go.4 A. This is where -- this is where we started.5 All right.6 Q. Right. Now, can I stop you for just a7 minute?8 A. You sure can.9 Q. Let's go back up to that first photograph

10 that we earlier identified --11 A. Right there.12 Q. It's Ken -- it's -- yeah, there's a13 picture -- is that Ken in the insulated bibs or14 whatever, the brown --15 A. No -- no, I don't think it is. That might be16 Brian. You'll --17 Q. Okay.

18 A. -- have to ask Ken. Because Ken --19 Q. Ken took the picture?20 A. Ken took the picture.21 Q. These pictures, beginning with DSCN 0782 and22 then progressing for a period of time, we could go back23 to the details of these files and see that these24 photographs were created in December 2013?25 A. Yes.0084

1 Q. Okay.2 A. Yes.3 Q. And that was during the demo of the 3M4 terrace as it existed on December X, 2013?5 A. That's right.6 Q. And then was reconstructed.7 A. Yes.8 Q. Okay?9 A. Yes.

10 Q. Now, this -- all right. And here's another11 one, DSN --12 A. It's just -- it's slowly filling things in13 here.14 Q. Okay. DSN -- DSCN -- excuse me -- 0801 --15 A. Yes.16 Q. -- is a photograph of a two-stage drain at17 the point at which the terrace that existed at that

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0827jharris.txt18 date in December was demoed down to whatever is now19 sitting on top of the post-tensioned slab. That's how20 far down we are right there? You can see --21 A. Yeah.22 Q. Can you see the flange of the second stage?23 A. You -- you actually can't see the flange24 here. This is --25 Q. Okay.0085

1 A. This is the drainage map. That's that2 dimpled plastic.3 Q. Oh, okay. I'm with you.4 A. And so we're not to the membrane yet; and,5 therefore, there's insulation under that -- and there6 will be better photos as they -- as the --7 Q. Okay.8 A. -- demolition proceeds.9 Q. And I don't need to see them. I just kind of

10 need to get a sense of what I'm looking at.11 A. Yeah.12 Q. And these are all from -- at least as --13 A. There's a lot of these pictures.14 Q. Bear with me for a second.15 A. You bet.16 Q. We are in -- I think we must be on your17 server right now.18 A. We are.19 (Viewing computer screen.)20 Q. And I need to ignore the equipment thing.21 And we're looking at a file that you designated as22 2566; right?23 A. 2566, right.24 Q. Palace Lofts, Unit 3 Terrace.25 A. Yes. Except that it -- it turns out that --0086

1 you know, that title is misleading. It's Palace Lofts2 waterproofing terraces, caulking --

3 Q. It includes 3M? I t includes --4 A. It includes everything we've done at Palace5 Lofts.6 Q. Right.7 From the original phone call from Ivan or8 Scott?9 A. Yes, from there on.

10 Q. Okay. That's all in that particular 2566.11 And is 2566 what's on the thumb drive?12 A. That's exactly right.13 Q. All right. And, currently, we are in 2566.0814 3M Terrace.15 A. Yes.16 Q. Which is a sub file of JRH Work.17 A. Yes.18 Q. Which is a file within 2566.19 A. Yes.20 Q. Within that sub file, we have Demo Photos.21 And there are demo photos taken -- somewhere in this22 folder -- we've identified December 2013 demo photos;23 correct?24 A. That's right, yes.25 Q. There are also -- although the date that your0087

1 file was created is one thing. The date that the photo2 was taken, when we look in details, can tell us when

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0827jharris.txt3 the photo was actually taken --4 A. Yes, it can.5 Q. -- assuming that the equipment was operating6 properly?7 A. Yes. Yes.8 Q. So that we're looking at right now --9 generally where we are, the DSCN 0804, for example, we

10 are in that range time -- temporally, we're in11 December 2013?12 A. December 2013, yeah.13 Q. Within this "Demo Photos" file, there are14 earlier photos from prior demo?15 A. There are. And -- and Ken can answer where16 those came from. I believe they probably came from17 Brian on the demo of 3L, but I'm not positive.18 Q. Brian?19 A. Ziegler of Eagle Construction.20 Q. Eagle Construction. Okay.21 A. Which means I don't know whey they're in the22 3M folder. That's a question you're going to have to23 ask Ken, the custodian of the file.24 Q. Yeah. Because if these were Brian's25 photos --0088

1 A. They wouldn't be 3M depo.2 Q. If those are Brian's photos of Eagle's3 construction of 3L's --4 A. That's about 2011.5 Q. -- terrace, then they wouldn't be 3M?6 A. That's right.7 Q. Okay.8 A. Okay.9 Q. Can we go back to -- you had -- you said

10 they're not all in -- for example, let's go to this sub11 file of JRH Work.12 A. Okay.13 Q. So I think we need to go to the level of JRH

14 Work.15 A. Okay.16 Q. Was there a file of photos -- I think -- do17 we have to scroll down?18 A. Yeah.19 Q. Do you know what I'm talking about?20 A. This big one here (indicating).21 Q. That photo.22 A. This is actually -- if -- if the file is just23 labeled with photos, year, month, date, that's -- that24 is a file that technically could be under JRH Work25 because we took those photos.0089

1 Now, there are also files in here of photos2 taken by other people.3 Q. Right. Right.4 Can you scroll down under Karen's -- photos5 by Karen and see what else is in there?6 A. Sure.7 Q. Over drain, sealant test, 3M, 4L, 8H. 8H, is8 that the bottom?9 A. 8H is the bottom.

10 Q. Okay. All right.11 Now, date modified is the computer date;12 right?13 A. It is.

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0827jharris.txt14 Q. So we've got a photo taken -- for example,15 we've got a folder of photos 2012-0702, which looks16 like somebody took photos right before the 4th of July17 and then downloaded them on the computer the next day.18 A. Yes.19 Q. And that would have been a -- 2012 would have20 been a -- the 5th would have been a Thursday, huh? I21 don't know.22 A. I don't know either.23 And it turns out that -- I have a hunch this24 was a spray test of some kind, because the big file25 here is actually a video.0090

1 Let's see what --2 Q. Okay.3 A. Let's see what the image shows.4 Q. What kind of spray test are we talking --5 well --6 (Viewing video.)7 A. This -- this was -- we were -- we were8 testing surface-applied sealant -- sealers. Sealers,9 not sealant. Okay.

10 Q. Brick and mortar sealers?11 A. Yes.12 And this is on the -- a wall that -- we're13 down in the alley here.14 Q. Okay.15 A. A wall in the parking garage.16 Q. All right.17 A. And so the video would be spraying the sealer18 on in this particular instance, I think.19 Q. Okay. So let's go back for a minute. In20 the -- and we don't need to look at it. But in the JRH21 Work --22 A. Uh-huh.23 Q. -- folder --24 A. Uh-huh.

25 Q. -- it is the 3M Terrace and Demo Photos. We00911 were looking at that.2 A. Yes.3 Q. Those photos were taken in December of 2013.4 Could you open that again so I can see when5 the computer file was creat