Free Reply Brief - District Court of Delaware - Delaware

Case 1 :04-cv-00163-GIVIS Document 1 14 Filed O1/25/2006 Page 1 of 2
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The Honorable Gregory M. Sleet
U.S. District Court . D 4
District of Delaware I
844 N. King Street, Lockbox 19 .1*;
Wilmington, DE 19801
Re: Donald M. Durkin Contracting, Inc. v. City of Newark, et al., Civil Action No. 04-0163 GMS
Dear Judge Sleet:
Donald M. Durkin Contracting, lnc. ("Durkin") hereby submits its response to the letter brief of the 1
City ofNewark ("City’). 1
The City advances three basic arguments to preclude the disclosure of documents generated during I
executive sessions of City Council and the notes generated by employees of the City at or alter these I
sessions. First, the City argues that the Act allows the City to withhold the executive session minutes and
related documents respecting the potential for and actual litigation with Durkin citing 29 Del. C. § 10004
(b)(4). This exception is the statutory embodiment of the attomey-client privilege afforded to public
bodies, but does not expand the City’s right to withhold documents beyond the established limits of the
attomey-client privilege. Sy Delaware Solid Waste Authority v. News—Journal Co., 480 A.2d 628, 631
(Del. 1984).
The general rule oflaw is that "(I)finformation is communicated to an attorney in the presence ofa
third party, usually the attomey-client privilege does not protect the disclosure ofthat communication."
Constar Int 'l, Inc. v. Cont 'l Petchs, Inc., 2003 U.S. Dist. Lexis 21132, 4-5 (D. Del. 2003). The City has
acknowledged that in some executive sessions, third parties, including URS representatives, were present,
but claims that the "common interest doctrine" nevertheless protects minutes from discovery. Frankly, it is
difficult to comprehend the City’s thesis that there was then, or is now, a “commonality of interest"
between URS and the City. URS had no "interest" in terminating the City’s contract with Durkin, and any
other alleged “common interest" was vitiated with the City filed suit against URS for its role in causing
damages to Durkin.
KOP;331637v4 3514-O4

Case 1:04-cv-00163—Gl\/IS Document 114 Filed 01/25/2006 Page 2 of 2
The Honorable Gregory M. Sleet
January 25, 2006
Page 2
The City also argues that the presence of a third-party "consultant" does not destroy the attomey-
client privilege. It is unclear whether the City is claiming that URS attained the status of"consultant", but
URS has never been identified as a litigation expert or consultant to the City. URS is the designer of the
reservoir, and was not, at least certainly not prior to this litigation, retained by the City "to assist it in
obtaining facts and information necessary to provide legal advice and assistance.” See, American Standard,
Inc. v. Pfizer, Inc., Civ. A. No. 83-834, 1986 U.S. Dist. LEXIS 27389 at *11 (D. Del. Mar. 31, 1986)
After it terminated Durkin, the City did retain Craig Calabria as a consultant. But Mr. Calabria’s
reports have now been disclosed by the City, his deposition has begun and his opinions, reports and
discussions with the City are no longer treated as privileged. The statutory basis for withholding the
documents reflecting Mr. Calabria’s comments no longer exists. In point oflaw, 29 Del. C. § 10004 (f)
provides that "such minutes or portions thereof, and any public records pertaining to executive sessions
conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure
would defeat the lawful purpose for the executive session, but no longer." The executive sessions with Mr.
Calabria should no longer be protected.
In Tulip Computers Int'! B. Ji v. Dell Computer Corp., 2002 U.S. Dist. LEXIS 23886, 5-6 (D. Del.
2002), Magistrate Judge Thyne ordered the production of documents writing that "the possibility of
litigation may have been addressed in the reviewed documents, but the there is nothing to indicate that they
primarily contain the mental impressions, opinions, conclusions, observations or legal theories of an
attorney or that the reviewed documents were necessarily prepared in anticipation of litigation or under
the direction of an attorney." The same conclusion is warranted respecting the documents sought by
Durkin, especially as they relate to the reasons for termination of Durkin in February, 2004.
Finally, in News—Journal Co. v. McLaughlin, 377 A.2d 358, 362 (Del. Ch. 1977), the Chancery
Court stated that "one purpose of sunshine laws is to prevent at nonpublic meetings the crystallization of
secret decisions to a point just short of ceremonial acceptance, that rarely could there be any purpose to a
nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed g
doors, and that a sunshine statute, being for the benefit of the public, should be construed so as to frustrate
all such evasive devices. (Citations omitted)." On its face, the executive session immediately preceding the
vote to terminate Durkin on February 2, 2004, was such a discussion. The minutes of the Council meeting
on February 2, 2004, disclose that Council adjoumed to executive session, met with URS representatives
for over an hour, retumed to the meeting, and without debate or discussion, immediately voted to terminate
Durl ever been said and the "facts" behind the conclusion of non—performance have never been made public. I
There is no statutory or decisional basis to justify the City’s withholding of the requested records,
especially where the apparent purposes of the executive session were to avoid the required public
discussion on issues related to the reseryoir contract and safety issues raised by Durkin.
Resp ully,
ul A. Logan
cc: All counsel of record
Clerk of the Court
KOP:33l637v4 3514-04

Case 1:04-cv-00163-GMS

Document 114

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Case 1:04-cv-00163-GMS

Document 114

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