August 13, 2013
State of Delaware, Department of Transportation
AMEC Environmental & Infrastructure, Inc., f/k/a AMEC E&I, Inc., f/k/a
Upon Defendant’s Motion to Compel.
Counsel for Figg Bridge Engineers, Inc.
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,
Richard F. Stokes J.