T I GHE, COT T RELL & LOGAM P.A. ( A
_ - 704 NORTHKING STREET; SUITE 500 . ‘ 4 . I ‘
~ IP.O.BOX]03J I _ _ . ‘ .
_ _ WYLMINGTOM DELA WARE J 9899 _ ` II -
_ _ Telephone Number: (302) 658~64OO _ .
'i`he‘Honorable Gregory M. Sleet _ ` Qlanuary 23, 2006 - 1
U.S. District Court I . _ _ t . I E
‘ ` 844 N. King Street, loockbox 19 - I _ _ ` · I
Wilmington, DE 19801 ‘ . - .
II RE: Donald M. Durkin Contracting, Inc. v. Newark, Civil Action No. 04-0163 GMS ‘
- Dear Judge Sleet: 1 - I , y 5
- ‘ I » Defendants ("City of Newark") submit this letter brief per the Court’s request dining the __
teleconference of Thursday, January 1.2, over whether the`City must produce minutes of Executive ‘
Sessions ofthe Council even though ae purpose of these sessions was to discuss this litigation.
‘ .- Plaintiff ("Durkin") says these minutes are discoverable and inalges three arguments. First,
Durkin asserts that any privilege ends once the litigation begins. Second, Durkin asserts that the _ _
presence of any third party at any session voids the attorney/client privilege. Third, Durlcin argues that
_ the personal notes of attendees at these sessions, unless taken at the direction of counsel, fails toI ` _1 I ` Q
iniplicatethe work product doctrine. The City respectfully submitsthat Durkin's interpretation of the I ·
protections afforded under the Delaware Freedom of Information Act (the "Act"), 29 Del. C. § 10004 et I
seq. , as well as the above referenced p1ivileges,isinco1rect. · · ( . I ·
(l) Durkin cites to Common Cause of Delaware v. Red Clay, 1995 Del. Ch. Lexis 165, to support- i
its proposition that, under the Act, the City has the burden to establish that (1) an executive session- was I `
‘ warranted; and (2) the documents created are still subject to being withheld from public disclosure .III-
While Common Cause did_ hold that the public entity has the burdento show that the session was held I_
for a proper ptupose,-the Court was satisiiedfroni the deposition testimony ofthe members of the Board
1 that the discussions were proper. Likewise, Durkin will be able to depose all individual defendants to
determine the propriety of the executive sessions ‘ . _
The Act clearly allows the City to withhold executive session minutes so long as public ·
disclosure would defeat the lawful purpose for holding the session. The purpose of each ofthe sessions . i
· at issue was precisely to discuss the potential for litigation with Durkiu and, later, the actual litigation.,
The Act expressly permits an executive session to be held. to discuss with counsel both pending and A
potential litigation. 29 Del? C. § l00O4 (b)(4). Duri
long as the litigation is pending, the minutes can be withheld. And the assertion that certain minutes -
made during the executive session are, in l)urkin's view, important to its case, does not trump the
attorney/client privilege or the protections ofthe Act. A ‘
(2) Thepresence of a third-party, such as a consultant, does not destroy the privilege. First, when
_ the third—party "possesses a commonality of interest with the client," theprotections of the Act remain.
Smith/dine Beecham Corp. v. Apotex Corp., E.D. Pa., 2005 WL 3597712; (See also, Interfaith Housing .
Del., Inc. v. Town of Georgetown, 841 F. Supp. 1393, 1397 (D. Del. 1994); citing, In re Grand Jury I
_ Case 1 :04-cv—00163-GIVIS Document 110 Filed 01/23/2006 Page 2 ofI2 ‘ Q
The Honorable Gregory M. Sleet . -
Ianuary 23, 20061 .
` ` Page Two 1 -
` Investigation, 9l8 F.2d 374, 386 & n. 20 (3d Cir.1990) (presence of clients agent or person with · I .
"‘commonality of interest" with the client will not vitiate the attorneyeclieut privilege). Durlciu cites to ·
Union Carbide Corp. v. Dow Chem. Co., 619 F. Supp. 1036 (D.- Del. 1985) to support: its position that
. the presence of URS during an executive session waives the privilege because_URS was a “non~essential
_ third—party." However, the Court in Union Carbide in fact held that third-party communications do . -
retain the protective shield if the parties have a "common legal interest," such as where they are co~ I I . i
defendants or are involved in or anticipate joint litigation. Id. at p. 1048. At all relevant times, there 5
was a "commonality of interest" between URS and Newark with regards to the design and Du.rkin’s ` I
claims. More specifically, in February of 2004, the City and URS were clearly anticipating being sued Q
as joint defendants, as they eventually were. (There are 13 minutes at issue. URS representatives were I I
present at two. The City’s expert, Calabria, was present at one and on a teleconference during another. p
But the Act does not say its protections are voided merely by the presence of third parties, nor should it
. be interpreted in this fashion since that would prevent Council from securing the input of experts on
· highly technical matter, as was done here. Even in the context of attorney/client privilege, the _ ,
involvement of third persons to whom disclosure is reasonably necessary to further the purpose of the
I legal consultation preserves confidentiality of communication and, thus, no waiver of the , I
. I I attorney·—client privilege occurs. 81 Am Jur 2d WITNESSES § 348. Baxter Int'l, Inc. v. Rhone—Poulenc E
I Rorer, Inc., 2004 Del. Ch. LEXIS 134 * 12 (When disclosure to a third party is necessary for the client I I Z
to obtain informed legal advice, courts have recognized exceptions to the rule that disclosure waives the
( i _ attorney-client privilege); see also, Ramada Inns v. Dow Jones & Co., 523 A.2d 968, 972 (Del. Super. i
1986).) I
. (3) As to Durkirfs contention that notes made by attendees to the meeting are discoverable, I
. undersigned counsel has confirmed that no Council member made or kept personal notes. Some notes I
I were kept by City officials at the meetings. But the statute specifically says that "such minutes or I
portions thereofi and any public records pertaining to executive sessions . . . may be withheld? 29 Deli _ _ .
C.‘ISec. 1_0004(f). These notes are public records pertaining to the executive session. ’
‘ The Act also states at 29 Del. C. Sec. 10002(g)(9) that, for purposes of the Act, "Any records ·
pertaining to pending or potential litigation which are not records of any court" shall not be deemed a
I Public Record. Therefore, records relating to pending or potential litigation are not required to be made _
. available to the public under the Act, and theCity cannot be compelled to provide them. Koyste v. State
‘ Police, 2001 WL 1198950 (Del. Super). Therefore, Defendants respectfully ask this Court to deny I
_ Durl
Very truly yours, .
I .Tl HE, COTTRELL & pOGAN, P.A. r
Q ,,\ Ceer——»
Paul Cottrell DE #2391 _ · ·
cc: All counsel of Record
Clerk ofthe Court
Case 1:04-cv-00163-GMS
Document 110
Filed 01/23/2006
Page 1 of 2
Case 1:04-cv-00163-GMS
Document 110
Filed 01/23/2006
Page 2 of 2
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