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State, Department of Transportation v. Figg Bridge Engineers, Inc.

Superior Court of Delaware, Sussex

August 13, 2013

STATE OF DELAWARE, DEPARTMENT OF TRANSPORTATION, Plaintiff,
v.
FIGG BRIDGE ENGINEERS, INC. and AMEC ENVIRONMENTAL & INFRASTRUCTURE, INC., f/k/a AMEC E&I, INC., f/k/a MACTEC ENGINEERING and CONSULTING, INC. Defendants.

DATE SUBMITTED: June 14, 2013

Frederick H. Schranck, Esquire, Deputy Attorney General, Department of Transportation.

Mary Page Bailey, Esquire, Deputy Attorney General.

J. Scott Shannon, Esquire, Marshall Dennehey Warner Coleman & Goggin.

Artemio C. Aranilla, Esquire, Marshall Dennehey Warner Coleman & Goggin.

Timothy Jay Houseal, Esquire, Young Conaway Stargatt & Taylor, LLP.

William E. Gamgort, Esquire, Young Conaway Stargatt & Taylor, LLP.

Craig A. Karsnitz, Esquire, Young Conaway Stargatt & Taylor, LLP

John H. Osorio, Esquire, Marshall Dennehey Warner Coleman & Goggin

John Anthony Wolf, Esquire, Ober Kaler Grimes & Shriver, P.C.

John F. Morkan III, Esquire, Ober Kaler Grimes & Shriver, P.C.

Anthony F. Vittoria, Esquire, Ober Kaler Grimes & Shriver, P.C.

Ian I. Freidman, Esquire, Ober Kaler Grimes & Shriver, P.C.

James F. Lee Jr, Esquire, Lee & McShane, P.C.

Michael F. Germano, Esquire, Lee & McShane, P.C.

Joseph M. Gesker, Jr., Esquire, Lee & McShane, P.C.

MEMORANDUM OPINION

Stokes, J.

Defendant AMEC Environmental & Infrastructure, Inc. ("AMEC") has filed a motion to compel documents in the possession of non-party Golder Associates ("Golder"). The State of Delaware Department of Transportation ("the Department") opposes the motion, arguing that 178 of the 181 the documents sought are exempt from discovery under what it calls the "executive/deliberative process privilege.[1]This nomenclature is clarified in a later section.

Delaware Uniform Rule of Evidence ("DRE") 508 recognizes certain governmental privileges based on both federal and state law. However, the Department, as the moving party, has not meet its burden to show that the executive/deliberative process privilege applies in this litigation. Therefore, AMEC's motion to compel is granted as to the 178 documents for which the Department asserts the executive/deliberative process privilege.

Facts

The Indian River Inlet Bridge ("the Bridge") spans the Indian River Inlet and carries State Route 1 over the Inlet. Plaintiff is responsible for ensuring that the Bridge is maintained in safe condition for transport of people and goods over the Bridge.

In 2002, Plaintiff started plans to replace the Bridge. In June 2003, Plaintiff and Figg entered into a design Agreement ("the Agreement") for the new bridge ("the Project"). The roadway approaches, as designed by Figg and another subconsultant, consisted of earthen embankments retained by six mechanically stabilized earth ("MSE") walls, concrete facing and stabilized slopes. The Agreement identified the subconsultants Figg would hire for each facet of the Project. As specified, Figg engaged Defendant AMEC as the subconsultant responsible for performing a site assessment and a Preliminary Foundation Study for both the roadway and the Bridge structure. AMEC is a geotechnical engineering firm. Its reports contained information of expected rates of settlements and time rates of ...


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