HomeMy WebLinkAbout000164 Original ContractCONFIDENTIALITY, JOINT COOPERATION
AND LITIGATION AGREEMENT
City of Port Angeles
Record #000164
1. Agreement. This Confidentiality, Joint Cooperation and Litigation Agreement
"Agreement is effective as of April 29, 2011, and pertains to the Covered Proceedings. The
Parties agree as follows.
2. Parties. The parties to this Agreement (collectively "Parties" or, individually a
"Party are the following:
2.1 CITY OF FORKS "Forks through Rod Fleck, City Attorney, and
P. Stephen DiJulio and Foster Pepper PLLC, Special Assistant City Attorneys.
2.2 CITY OF PORT ANGELES "Port Angeles through William Bloor,
City Attorney, and P. Stephen DiJulio and Foster Pepper PLLC, Special Assistant City
Attorneys.
2.3 WASHINGTON DENTAL SERVICES FOUNDATION "WDSF
through P. Stephen DiJulio and Foster Pepper PLLC "Foster Pepper
2.4 Any other Party that, with the advance written consent of the Parties,
executes the Joinder in Agreement "Joined Parties
3. Covered Proceedings Engagement.
3.1 This Agreement relates to and covers the following litigation and any
other potential, pending or future proceedings concerning allegations arising out of substantially
the same facts (collectively, the "Covered Proceedings
Protect the Peninsula's Future, Clallam County Citizens for Safe Drinking Water,
and Eloise Kailin, Petitioners, v. City of Port Angeles and City of Forks,
Defendants, Clallam County Cause No. 11 -2- 00433 -6.
3.2 Foster Pepper is engaged by and represents the Parties, in the Covered
Proceedings, in association with the City Attorneys of Forks and Port Angeles.
4. Mutual Interest. The Parties share an interest in obtaining a favorable outcome
in the Covered Proceedings. The Parties therefore agree that it is in their mutual best interests to
cooperate with each other to the extent permitted by law and to share certain information
protected by the attorney client privilege, the work product doctrine, the joint- defense privilege
and any other applicable privileges in conducting an investigation into and/or defense of any and
all potential claims asserted in the Covered Proceedings.
5. Joint Defense Materials. To further the mutual interest described above, the
Parties may develop, share and exchange certain privileged and work product information and
documents, possibly including, but not limited to, factual analyses, mental impressions, legal
memoranda, reports of witness interviews, draft briefs, draft affidavits and/or declarations,
pleadings, and other information, oral or written (collectively, "Joint Defense Materials
Nothing in this Agreement shall limit a Party's right to use its own materials for any lawful
purpose, regardless of whether the material was exchanged pursuant to this Agreement. The
disclosing Party may designate any Joint Defense Material with a unique Bates label (or other
identification) to identify the source of the material or adopt some other mechanism to clearly
identify such material and its source and shall record the fact that it is being exchanged pursuant
to this Agreement. Each Party shall maintain adequate records memorializing the exchange of
all Joint Defense Material. However, any failure to designate or identify material, and any
failure to maintain records of exchange of such material, shall not deprive the material of status
as Joint Defense Material or other privileged status.
6. Cooperation. Pursuant to this Agreement, the Parties shall cooperate with one
another as fully as possible and practicable, given the unique interests and concerns of each
Party, in the investigation of, response to and /or defense of any claims, allegations or assertions
made against the Parties in the Covered Proceedings.
7. Association of Counsel. Foster Pepper will associate with Forks and Port
Angeles in defense of the Covered Proceedings. It is understood that Foster Pepper will serve as
the lead for and coordinator of legal proceedings, in cooperation and consultation with Forks and
Port Angeles, acting through its respective City Attorneys. For filings in Clallam County
Superior Court, Port Angeles shall have responsibility. For filing in Jefferson County Superior
Court, or other courts, the parties will coordinate to provide for the most efficient method of
filing. Service shall be coordinated through the offices of Foster Pepper, working in conjunction
with Forks and Port Angeles.
8. Waiver of Conflict of Interest.
Foster Pepper PLLC serves regularly as special counsel to both Forks and to Port
Angeles. Foster Pepper also serves from time to time as a special counsel to WDSF. Foster
Pepper represented WDSF in connection with its contracting with Port Angeles for that City's
public water system fluoridation. It appears that no other prior representation of any Party, or
representation in the Covered Proceeding, presents a conflict of interest.
The Washington Rules of Professional Conduct prohibit an attorney and all members of
that attorney's firm from representing a client in a matter that is adverse to the interests of
another client of the firm. While joint representation of Forks and Pot Angeles may not be a
technical conflict, out of an abundance of caution the Parties treat such a relationship carefully
and address conflict waivers for the Covered Proceedings. Similarly, simultaneous
representation of any Party on matters unrelated to the scope of work for the Covered
Proceedings may still require informed consent to such representation.
The Rules of Professional Conduct allow clients to waive conflicts of interest when: the
lawyer reasonably believes the representation of one client will not adversely affect the
relationship of the other client; and, all clients consent in writing after full disclosure of all the
material facts. The Parties have considered the conflict presented here and believe that it would
be appropriate for the Parties to waive the conflicts. Each Party will consult with its own legal
counsel to determine whether such waiver is appropriate and in order.
The primary risk associated with waivers of conflict of interests in circumstances like this
is the risk of confidential information of one client being disclosed to the other client to the
disadvantage of the first client. The work Foster Pepper would be performing in the Covered
Proceedings is unrelated to work in Foster Pepper representation of an individual Party. The
Parties are not aware of any confidential information relating to representation of any Party in
this matter that would be pertinent in Foster Pepper representation of any other Party. Further,
Foster Pepper will not disclose any information relating to this engagement to any other client of
Foster Pepper. Work product will be directed only to the Parties, unless otherwise authorized by
the Parties. The Parties recognize that there is not a present risk for the Parties in the
management of any confidential information, subject to this Agreement.
A second risk associated with the waiver of conflict of interest is the risk that lawyers
will not zealously represent their clients out of fear of offending their other clients. Each of the
Parties has had an ongoing history of engaging Foster Pepper to serve as special counsel. The
Parties understand that Foster Pepper will represent the Parties and each Party with respect to
separate representations to the best of its abilities. Foster Pepper's representation of any Party
will not be affected by prior or future representations of a Party by Foster Pepper, or others, on
unrelated matters.
On matters unrelated to the Covered Proceedings, it is understood that by authorizing this
representation, no Party will assert that Foster Pepper's representation will give rise to future
claims of conflict with respect to future engagements of Foster Pepper by any Party.
9. Costs and Fees of Defense. Invoices for fees, expenses and costs for Foster
Pepper services to the Parties shall be directed to Forks, with a copy to each of Port Angeles and
WDSF. Each Party shall be responsible for payment of one -third of the monthly invoice.
Provided, however, without further written authorization neither Forks nor Port Angeles shall be
responsible for fees in an amount in excess of Eight Thousand Five Hundred dollars ($8,500) per
City. It is understood by the Parties that this matter should be resolved on a motion to dismiss,
or at summary judgment. If the matter proceeds to trial, or beyond the trial court to appellate
proceedings, the Parties will re- evaluate the terms and continuation of this Agreement.
10. All Privileges Maintained. The Joint Defense Materials that the Parties
exchange are privileged from disclosure to adverse or other non parties as a result of the
attorney client privilege, the work product doctrine, the privileges applicable to parties with
common interests, the joint- defense privilege, and other applicable privileges or protections
(collectively, "privileges By this Agreement, the Parties confirm that in pursuit of their
common interests in responding to and defending against allegations and claims in the Covered
Proceedings, the Parties do not, by sharing Joint Defense Materials, intend to waive any
applicable privileges, and they intend to preserve to the maximum extent permitted by applicable
law all privileges and protections.
11. Confidentiality /Scone of Duties. Except as may be required by court order or
permitted by agreement of all Parties that have not withdrawn under the provisions below, none
of the Parties will disclose any Joint Defense Materials received from another Party to this
Agreement to any person or entity other than a Party that has not withdrawn from this
Agreement. The Parties agree to use Joint Defense Materials to further their investigation into
and defense of claims that may be asserted in the Covered Proceedings. If any Party (including a
Party that has withdrawn from this Agreement pursuant to the terms stated below) receives a
request, including a subpoena, for production of Joint Defense Materials, that Party shall notify
all other Parties; and that Party, with the cooperation of the other Parties, shall take appropriate
steps to oppose production of the requested Joint Defense Materials to the extent permitted by
law. Anything herein to the contrary notwithstanding, the Parties are permitted to disclose Joint
Defense Materials to such officers, employees, elected officials, agents, consultants and experts
employed to assist a Party in connection with the Covered Proceedings. It shall be the
responsibility of the Party making such permitted disclosures to ensure compliance with the
terms of this Agreement.
12. Withdrawal. Any Party to this Agreement may withdraw from this Agreement
upon 15 days' prior written notice to all other Parties. Any withdrawing Party shall continue to
be bound by this Agreement with regard to any Joint Defense Materials received, learned, or
obtained at any time prior to the effective date of the withdrawal, and this Agreement shall
continue to protect all Joint Defense Materials disclosed to both the withdrawing Party and the
Parties. Upon withdrawal, the withdrawing Party will prospectively cease to be entitled to
receive any Joint Defense Materials and shall, upon request of the furnishing Party, promptly
return all Joint Defense Materials to the Party that furnished them.
13. Effective Date. This Agreement incorporates the prior understanding and
practice of the Parties. This Agreement shall apply to all Joint Defense Materials, including any
Joint Defense Materials exchanged among the Parties prior to the effective date of this
Agreement, regardless of whether such materials were Bates labeled (or identified) as described
above.
14. Execution. This Agreement is dated on the last date of execution, below, and
effective as stated above. This Agreement may be executed in multiple counterparts.
DATED this day of May 2011.
CITY OF FORKS
Bryon M&iohon, Mayor
od Fleck
City Attorney
DATED this \'S day of May 2011.
ted
DATED this 3 f day of May 2011.
DATED this 8914 of May 2011.
CITY OF PORT ANGELES
Kent 3(/Iyers, 'City Man
14)/
William Bloor
City Attorney
WASHINGTON DENTAL
6„,,
Laura Smith, President and CEO
FOSTER PEPPER PLLC
P. Ste. en DiJulio
Attorneys for WDSF
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