Free Order - District Court of Delaware - Delaware

Case 1:04-cv-00163-GMS

Document 241

Filed 09/12/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ____________________________________ ) DONALD M. DURKIN CONTRACTING, ) INC., ) ) Plaintiff ) ) v. ) ) CITY OF NEWARK, et al., ) ) Defendants ) ) and ) C.A. No. 04-163 GMS ) CITY OF NEWARK, et al., ) ) Third-Party Plaintiff ) ) v. ) ) DONALD M. DURKIN CONTRACTING, ) INC., AND FEDERAL INSURANCE ) COMPANY, ) ) Third-Party Defendants ) ____________________________________) ORDER WHEREAS, on September 5, 2006, the court held a pretrial conference, during which oral argument was heard on Federal Insurance Company's motion in limine (D.I. 213) to compel the production of privileged documents based upon the City of Newark's waiver of privileged communications from Carol Houck; WHEREAS, the court has considered the parties' arguments and timely submissions (D.I. 213, 223, 224) on the topic; WHEREAS, the court held on September 5, 2006, that the May 16, 2006 correspondence

Case 1:04-cv-00163-GMS

Document 241

Filed 09/12/2006

Page 2 of 2

from Ms. Houck to Mr. Cottrell, counsel for the City of Newark, was not an affidavit but a disclosure that constituted a subject-matter waiver of an attorney-client privileged communication; WHEREAS, it is the court's understanding that the parties' have failed to reach an agreement regarding the scope of waiver; WHEREAS, the court finds that the following disputed topics fall within the scope of waiver: (a) communications concerning the allegation of Durkin's "failure to proceed" (May, 16, 2006 Correspondence, page 2) (b) communications concerning the allegation that Durkin "failed to follow the direction of the engineer" (May 16, 2006 Correspondence, page 3) (c) communications concerning the allegation that Durkin "would not complete the project at the price it bid" (May 16, 2006 Correspondence, page 3) (d) communications concerning the statement that the City of Newark "worked to address concerns" (May 16, 2006 Correspondence, page 3) (e) communications concerning the statement that the City of Newark "paid on time" (May 16, 2006 Correspondence, page 3)

IT IS HEREBY ORDERED that: Federal Insurance Company's motion to compel (D.I. 213) is GRANTED.

Dated: September 12, 2006

/s/ Gregory M. Sleet UNITED STATES DISTRICT JUDGE

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