Delaware Department of Transportation v. Amec E & I, Inc., et al.
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SUPERIOR COURT
OF THE
STATE OF DELAWARE
RICHARD F. STOKES
SUSSEX COU NTY C OUR THO USE
JUDGE
1 THE CIRCLE, SUITE 2
GEORGETOWN, DE 19947
TELEPHONE (302) 856-5264
August 13, 2013
Craig A. Karsnitz, Esquire
Timothy Jay Houseal, Esquire
William E. Gamgort, Esquire
Young Conaway Stargatt & Taylor
1000 North King Street
Wilmington, DE 19801
Frederick H. Schranck, Esquire
DE Department of Transportation
P.O. Box 778
Dover, DE 19903
Mary Page Bailey, Esquire
Department of Justice
820 N. French Street, 6th Floor
Wilmington, DE 19801
RE:
State of Delaware, Department of Transportation v. AMEC
Environmental & Infrastructure, Inc., f/k/a AMEC E&I, Inc., f/k/a
MACTEC Engineering and Consulting, Inc.
C.A. No. S11C-01-031 RFS
Upon Defendant’s Motion to Compel.
Granted in Part. Denied in Part.
Dear Counsel:
In a companion Memorandum Opinion, I ruled that the deliberative process
privilege is not available to the Department in regard to 178 documents listed in its
privilege log. The three remaining documents are addressed herein.
The Department concedes that a memorandum dated on the log as January 3,
2011 (argued as January 20, 2011), has been shared with a third party and the work
product immunity is thus waived. Counsel’s highlighted portions of this
memorandum shall be redacted in accordance with DRE 403, and a clean copy
provided to AMEC as soon as reasonably possible.
The Department claims work product immunity for a memorandum dated July
17, 2009. However, the parties agree that Ober-Kaler worked as a claims consultant
under O’Connell & Lawrence (the lead claims consultant) until the fall of 2009, when
the Department retained Ober-Kaler as counsel. A specific date has not been
provided, but the parties agree that it occurred in the fall of 2009. On these facts, the
memorandum is not immune from discovery and shall be provided to AMEC as soon
as reasonably possible.
The third document is a memorandum dated September 25, 2009, by which
time Ober-Kaler was counsel for the Department. The privilege log describes this
document as “Discussion of outline and plan for analysis of failure of embankments.”
This language, albeit brief, suggests that the facts and opinions of counsel are
entwined in such a way that the two cannot be separated in a meaningful way. As
advisory work of counsel, this memorandum is not available to AMEC under
Super.Ct.Civ.R. 26(b)(3).
IT IS SO ORDERED.
Very truly yours,
/s/ Richard F. Stokes
Richard F. Stokes
Original to Prothonotary
xc: Counsel for Figg Bridge Engineers, Inc.
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