Loading...
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 G• \LEGAL\A AGREEMENTS &CONTRACTS\2011 AGRMTS &CONTRACTS\JOINT DEFENSE AGREEMENT 05 18 11.DOC