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Via Electronic Mail
The Honorable Gregory M. Sleet
U.S. District Court
District of Delaware
844 N. King Street
Lockbox 19
Wilmington, DE 19801
Re: Donald M. Durkin Contracting, Inc. v. City of Newark, etal., Civil Action No.
04-0163 GMS
Dear Judge Sleet:
In anticipation of the discovery teleconference scheduled for Thursday January 12, 2006 at
10:00 a.m. in the above-captioned matter, the parties jointly submit the following items to be presented
to the Court:
Plaintiffs Issues:
· Despite repeated requests for production of the certain categories of documents, to
include production of the individual files of the named City Council defendants, the
Executive Session meeting minutes and notes taken, and documents generated in
connection with the rebidding and subsequent contracting with George & Lynch,
inclusive of the construction records compiled during completion of the reservoir
construction, these documents have not been produced. It is Durkin’s position that
based upon the delay in such productions, all assertions of privilege for these documents
has been waived. Further, as to the Executive Session meeting minutes and notes,
KOP:33069lvl 3514-04
Case 1 :04-cv—00163-GIVIS Document 108 Filed 01/10/2006 Page 2 of 2
The Honorable Gregory M. Sleet
January l0, 2006 _ ‘
Page 2
particularly since this may provide the exclusive doctusnentation respecting the
knowledge and basis of the decision to wrongfully terminate Durkin’s contract, any
assertion of privilege over these material is overcome by the inability of Durkin to
obtain substantially the same information on this central issue to the case.
· There are numerous documents identified in the privilege log provided bythe City
which, by their subject description, are not in fact subject to any claim of privilege.
Since no basis of privilege was identified for any document, we are not in a position to
formulate any challenge to the claimed withholding of these documents. With the most
recent production of documents by the City, there was reference to an update and/ or
supplement to the privilege log, but that has not been provided.
Defendant’s Issues:
· The City of Newark has taken the position that all non-privileged doctunents, with the
exception of the George & Lynch records, have been produced, including those files of
the individual Council members, and that the Executive Session documents (meeting
minutes and notes) are covered by statutory privileges and/or Delaware Freedom of
Information Act withholding. Counsel for the City of Newark has represented that the
George & Lynch materials will be produced, but no date or other detail has been
provided for such production.
The parties will continue to communicate in an attempt to resolve these disputes, and will
promptly advise the Court of any progress in that regard.
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David T. 13 olger /·’
cc: All counsel of record »-/’
Clerk of the Court
KOP:33069lvl 3514-04
Case 1:04-cv-00163-GMS
Document 108
Filed 01/10/2006
Page 1 of 2
Case 1:04-cv-00163-GMS
Document 108
Filed 01/10/2006
Page 2 of 2
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