Free Motion in Limine - District Court of Delaware - Delaware

Case 1 :04-cv-00163-GIVIS Document 184 Filed 08/22/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

DONALD M. DURKIN CONTRACTING, INC., E
Plaintiff {
vs. i
CITY OF NEWARK, et al., Defendants E CASE NO. 04—0l63—GMS
and E .
CITY OF NEWARK, Third-Party Plaintiff E
vs. E
DONALD M. DURKIN CONTRACTING, l
FEDERAL INSURANCE COMPANY and URS I
CORPORATION, Th ird-Pan]: Defendants E
PLA]NTIFF’S MOTION IN LIMINE
TO PRECLUDE THE CITY FROM ASSERTING
A JOINT DEFENSE PRIVILEGE BETWEEN THE CITY AND URS
AND
. MOTION FOR AN ORDER DIRECTING THE CITY TO
IMl\/IEDIATELY PRODUCE ANY DOCUMENTS BEING VVITHHELD
BASED ON THE JOINT DEFENSE PRIVHJEGE
1. Plaintiff and Third Party Defendant Donald M. Durkzin Contracting, Inc.
("Durkin") filed an action against Defendant City of Newark and members of City Council
I (collectively "the City") arising out of the City’s improper termination of Durkin’s Contract.
2. Durkin files this Motion in Limine to preclude the City from asserting a joint
defense privilege between th City and URS Corporation (“URS") and for an Order directing the
City to immediately produce any documents that are being withheld on the basis of such joint
defense privilege].
I If any documents are produced to Durkin prior to trial that have been previously withheld under
the guise of a joint defense privilege, Durkin reserves the right, after a review ofthe documents,
to file a Motion(s) in Liminc to preclude the City from introducing such documents at trial based
on, inter alia, the City’s failure to comply with discovery under the Federal Rules of Civil
Procedure.
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3. On March 16, 2004 Durkin filed a Complaint against the City and URS
(Complaint, App. Al-A46).
4. On September S, 2005 the parties stipulated to the dismissal of URS pursuant to
Federal Rule 41 (a)(l). (Stipulation, App. A4?).
5. After URS was dismissed, the City tiled a Third Party Complaint against URS
asserting, inter alia, "in the event that a judgment should be rendered against [the City] related to
the design and/or termination, then [the City] would be entitled to contribution, indemnification,
or a pro rata determination of the respective shares of liability from URS ..." (Third Party
Complaint, App. A48-A53, 1l5, App. A49).
6. URS tiled a Motion to Dismiss the Third Party Complaint or in the altemative to
stay the Third Party Complaint. The Court denied URS’ Motion and permitted the City to
proceed with the Third Party Complaint. (Order 4/5/06, App. A54-A59).
7. Thereafter, URS flied an Answer and Counterclaim to the City’s Third Party
Complaint. (Answer and Counterclaim, App. A63-A6'!).
8. In the Counterclaim, URS is seeking to recover against the City
__ payments/reimbursement for (a) services performed to design and supervise the construction of
the Reservoir; (b) litigation support services; and (c) payment to Brandywine Nurseries. (App.
A65-A66).
_ 9. Throughout discovery in this case, the City has asserted and maintained that there
exists a joint defense privileged between the City and URS, and Durkin believes that the City will `
interpose objections to the introduction of testimony and other evidence based upon an alleged
joint defense privilege between the City and URS. C
10. By way of example, in the deposition of URS Engineer John Volk, counsel for
the City raised the joint defense privilegez, when Mr. Volk was asked about a meeting between
2 Despite the objection, counsel for the City did permit the witness to answer the questions.
2
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the City, its attorneys and URS personnela. (lfolk Deposition 6/20/06, page 55-56, lines 7-20;
pages 229-230, lines 19-6 App. A69-A70).
11. The joint defense privilege is sometimes referred to as the “common interest
rule." See Minebea C0., Ltd. v. Pepsi, et ul, 228 F.R.D. 13, 2005 U.S. Dist. LEXIS 7562 (D.
D.C. 2005). A
12. It is "an extension of the attorney-client privilege that protects from forced
disclosure communications between two or more parties andfor their respective counsel if they `
are participating in a joint defense agreement." Id. at 15 (internal citations omitted).
U 13. To establish the existence of a joint defense privilege the party claiming the
privilege — in this case the City — must demonstrate three (3) factors: (1) the communications
must have been made in the course of a joint defense effort; (2) the statements were designed to
further that effort; and (3) the privilege has not been waived. In the Matter ofBeviIl, Bresler &
Schulman Asset Management, 805 F. 2d 120, 1986 US. App. LEXIS 33560 (3d Cir. 1986).
14. There is no ongoing joint effort between the City and URS to set up a common
defense strategy. _
15. Even assuming arguendo that at one time there was a joint defense effort
between the City and URS, it was vitiated when they tiled claims one against the other.
16. This Court has not recognized any joint defense privilege between the City and
URS, but rather has ordered the City to produce to Durkin certain Excessive Session Meeting
Minutes because URS — a third party — was present during those sessions. (Order 5/9/06, App.
A60-A62).
17. The City has also identified, through its privilege log, a number of documents
that are currently being withheld based, at least in part, upon the assertion of a joint defense
privilege with URS. h
3 This is just one example of where counsel for the City has interposed an objection based upon
the joint defense privilege in a deposition. It is not meant to be an inclusive listing of where the
City has raised an objection on this basis in the course of depositions in this case.
3
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18. If the City is continuing to withhold documents from production based on the
claim of joint defense privilege, Durkin respectfully requests that this Court order the City to
immediately produce all such documents.
19. After a review of any documents previously withheld, Durkin reserves the right .
to file a Motion(s) in Limine to preclude the City from introducing the documents at trial based
on, inter alia, the City’s failure to comply with discovery under the Federal Rules of Civil
Procedure.
WHEREFORE, for the reasons set forth above, Defendant Donald M. Durktirr
Contracting, Inc. respectfully requests that this Court grant its Motion in Limine and preclude the
City from asserting a joint defense privilege between the City and URS and Order the City to
immediately produce any documents that are being withheld on the basis of joint defense
privilege.
l l POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
By: fs! Paul A. Logan -
Paul A. Logan
Delaware Supreme Court ID #3339
475 Allendale Road, Suite 200
King of Prussia, PA 19406
Telephone: 610-354-9700
Telefacsimilez 610-354-9760
Attorneys for Plaintif and Third Party
Defendant Donald M. Durkin Contracting
Dated: August 16, 2006 l
4
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