Free Motion for Sanctions - District Court of Delaware - Delaware

Case 1 :04-cv-00163-GIVIS Document 246 Filed O9/22/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DONALD M. DURKIN CONTRACTING, INC., E
Plaintw {
vs. l
CITY OF NEWARK, et al., Defendants E CASE NO. 04-0163-GMS
and E
CITY OF NEWARK, T hird-Party Plaintw E
vs. E
DONALD M. DURKIN CONTRACTING, l
FEDERAL INSURANCE COMPANY and URS E
CORPORATION, T hird-Party Defendants I
I ST. PAUL FIRE & MARINE INSURANCE l
COMPANY, Intervenar
PLAINTIFF’S MOTION
FOR SANCTIONS UNDER FEDERAL RULE OF CIVIL PROCEDURE 37g lg), gc] and gd)
POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
Paul A. Logan
Delaware Supreme Court ID #3339
475 Allendale Road, Suite 200
King of Prussia, PA 19406
Telephone: 610-3 54-9700
Telefacsimile: 610-354-9760
Attorneysfor Plaintw and Third Party
Defendant Donald M Durkin Contracting
Dated: September 22, 2006
KOP:350526vl 3514-04

Case 1:O4—cv-00163-Gl\/IS Document 246 Filed O9/22/2006 Page 2 of 4
1. Plaintiff and Third Party Defendant Donald M. Durkin Contracting, Inc. ("Durkin") filed
an action against Defendant City of Newark and members of City Council (collectively "the City")
arising out of the City’s improper termination of Durkin’s Contract for default.
2. Durkin files this Motion for sanctions under Federal Rule of Civil Procedure 37(b), (c)
and (d).
3. The City has blatantly violated discovery in this matter.
4. Based on the City’s continued refusal to supplement its discovery responses, withholding
documents that are clearly not privileged, and failure to fully comply with this Court’s Order regarding
privileged documents, Durkin is entitled under Rule 37(b), (c) and (d) to foreclose the City from cross
examining any witness called by Durkin or offering any evidence on the issue of liability or damages on
any claims asserted by Durkin.
5. By way of summary and background, Durkin incorporates the Certification of Paul
Logan, Esquire which provides a detailed history of the City’s continued disregard for their obligations
under the Federal Rules of Civil Procedure and this Court’s Order. (Certification of Paul Logan, Esquire,
Appendix ("App.") App. Al -A103).
6. Further to Mr. Logan’s certification, the City’s discovery abuses continued most recently
with regard to this Court’s September 12, 2006 Order.
7. The Court ruled that the May 16, 2006 correspondence from Carol Houck to Paul
Cottrell, litigation counsel for the City, was a disclosure that constituted a subject-matter waiver of an
attomey—client privileged communication. (Order 9/12/06 App. Al04-Al05).
8. The Court then ordered production of documents within the five (5) designated categories
that were disputed by the City. Of the approximately seventy—eight (78) documents produced pursuant to
F
five (5) designated categories where waiver of the attorney-client privilege was formd to have occurred.
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Case 1:O4—cv-00163-Gl\/IS Document 246 Filed O9/22/2006 Page 3 of 4
9. Many of the remaining documents on the City’s privilege log, that the City is obligated to
produce but to date has yet to produce, arguably pertain to the five (5) designated categories where the
waiver occurred.
10. Durkin asked the City to provide more information on those documents that the City
continued to withhold in order to fully evaluate the claimed privilege, especially in light of the waiver.
(Email from David T. Bolger, Esquire to Paul Cottrell dated September 6, 2006 App. A106-A108).
11. The City has not responded with additional infomiation.
12. There were only approximately nineteen (19) documents that were produced pursuant to
this Court’s recent Order on waiver that were not on the privilege log, although some should have been.
13. Some of the approximately nineteen (19) documents are in no way privileged or
protected from production and should have been produced over a year ago.
14. The most recent document produced pursuant to this Court’s Order on the privilege
waiver is dated September 2, 2004. It is inconceivable that no documents were generated in 2005 and
2006 that pertained to those subject matters in the Court’s recent order were generated — that is, other than
the privileged document that prompted this Court’s Order, which is dated May 16, 2006.
15. The City has engaged in a pattern of abuses of the Rules, misrepresented the availability
of documents, purposefully concealed and withheld documents — including case-dispositive documents —
obstructed the discovery process and ignored the Court’s Order.
16. Accordingly, Durkin is entitled to sanctions under Rule 37(b), (c) and (d). See Fed. R.
Civ. P. Rule 37(b), (c) and (d).
17. Under Rule 37, a sanction for a discovery abuse, including the preclusion of evidence, is
warranted except when a party's conduct is either substantially justified or harmless. See Fed. R. Civ. P.
37; Praxair, Inc. v. ATML Inc., 2006 U.S. Dist. LEXIS 57857, 20-21 (D. Del. 2006).
T
has suffered as a result of the City’s blatant discovery abuses.
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Case 1:O4—cv-00163-GI\/IS Document 246 Filed O9/22/2006 Page 4 of 4
19. In light of the pattern of discovery abuses that have taken place, and the prejudice to
Durkin from this conduct, Durkin is entitled to have appropriate additional sanctions entered against the
City, together with attomey’s fees and costs.
WHEREFORE, Plaintiff Donald M. Durkin Contracting, Inc. respectfully requests that this Court
grant its Motion for Sanctions Under Federal Rule of Civil Procedure 37(b), (c) and (d) and foreclose the
City from cross examining any witness called by Durkin or offering any evidence on the issues of liability
or damages on any claims asserted by Durkin against the City and prohibiting any testimony or evidence
by the City on the issues of liability or damages on any claims asserted by Durkin against the City and
award Durkin its attorney’s fees and costs. In the alternative, Durkin respectfully requests that the Court
enter an Order of a judgment by default against the City on the claims by Durkin and award Durkin its
attorney’s fees and costs, together with such additional relief as this Court deems necessary or
appropriate.
POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
By: /s/ Paul A. Logan
Paul A. Logan
Delaware Supreme Court ID #3339
475 Allendale Road, Suite 200
King of Pmssia, PA 19406
Telephone: 610-354-9700
Telefacsimilez 610-354-9760
Attorneys for Plaintw and Third Party
Defendant Donald M Durkin Contracting
Dated: September 22, 2006
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