Loading...
Diamond Bar, City of (Joint Defense Agreement) A2017-226A2017-226 JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT The parties to this Joint Defense and Confidentiality Agreement (the "Agreement"), City of Diamond Bar ("Diamond Bar") and City of Chino Hills ("Chino Hills"), together with any affiliates (collectively, the "Parties"), have agreed it would benefit each of the Parties if they and their lawyers, are able to share information relevant to the proposed purchase of property know as Tres Hermanos by the City of Industry and potential litigation that may arise therefrom (collectively the "Actions"). This sharing of information is pursuant to a joint defense, common interest privilege. No waiver of any privilege or other immunity from discovery or disclosure, such as the work product privilege, is intended by signing or participating in this Agreement. RECITALS A. This Agreement relates to the proposed purchase by the City of Industry of property commonly known as Tres Hermanos, which property lies within the jurisdictions of Diamond Bar and Chino Hills (the "Purchase"). B. It is in the Parties' best interests to share information and resources relating to the Purchase and Actions, and to agree upon the use of confidential and otherwise privileged communications and work -product shared as part of those endeavors. C. As a result of the Purchase, and the claims and defenses asserted in the Actions, the Parties have interests in common and may assert common claims and defenses. The Parties concluded that facts and information known by each of them, as well as other parties may assist the Parties in responding to these claims and/or potential claims. D. Diamond Bar has retained Sheppard, Mullin, Richter & Hampton to represent Diamond Bar's interests with respect to the Purchase and Actions. E. The Parties have concluded that their mutual interests will be best served by exchanging certain documents and information. AGREEMENT 1. The Parties, incorporating the above recitals as part of their Agreement, in consideration of the mutual promises and obligations as contained herein, do hereby memorialize their Agreement as follows: a. Sheppard, Mullin, Richter & Hampton ("Sheppard, Mullin")�_ Woodruff, Spradlin & Smart ("WS&S") will represent the interests of Diamond Bar. The Hensley Law Group will represent the interests of Chino Hills. The Parties agree that with such representation, this Agreement does not create a conflict of interest because both Parties are expected to take the same legal position on the issues that are the subject of the Purchase, Actions, and this Agreement. b. As part of an effort to establish a joint defense strategy for the Purchase and Actions, each of the Parties and their counsel desire to share certain documents, facts, opinions and other information in confidence and generally to pool their respective work product for their common purpose and benefit. 1267989.1 C. This common purpose and benefit includes, but is not limited to, minimizing the costs and enhancing the effectiveness of representation of the Parties in pending or future legal or administrative proceedings relating to or arising from the Purchase and Actions. It is acknowledged that the Parties may have specific separate and distinct interests in the Purchase, Actions, and related issues, but that they also have common interests and objectives. d. The documents, facts, opinions, discussions, and other information that the Parties wish to share ("Joint Defense Communications") concern the Purchase and Action or any events leading up to or resulting from the Purchase and Actions. In certain circumstances, in the absence of such sharing, these Joint Defense Communications would be privileged from disclosure to third -parties by the attorney-client privilege, the work product doctrine and/or other applicable privileges. The Parties have agreed that all Joint Defense Communications shall remain privileged or protected when communicated to the other Party or its counsel in accordance with the common purpose concepts contained in California Evidence Code section 912(d) and articulated in Raytheon Co. v. Superior Court (1989) 208 Cal.App.3d 683, and Continental Oil Co. v. United States (9th Cir. 1964) 330 F.2d 347, and their progeny. e. The Parties agree to produce and share Joint Defense Communications, including administrative draft documents and investigative reports, among and between themselves and the Parties, protected by the attorney-client privilege as provided in Evidence Code section 954, and attorney work product documents and communications protected by Code of Civil Procedure sections 2018.010 - 2018.080, which pertain to the Purchase and Actions, or any events leading up to or resulting from the Purchase and Actions, as well as other documents and communications shared for the purpose of assisting the Parties in asserting common claims or interests. This Joint Defense and Confidentiality Agreement applies to such information or documents, if any, that have already been shared or exchanged between the Parties. (1) Each of the Parties and counsel agree that any Joint Defense Communications, or any other communications related to the Purchase and Actions, they receive from any other Party or its representatives shall be treated and maintained as privileged and confidential communications. (2) Any exchange of Joint Defense Communications, or any other communications related to the Purchase and Actions, shall not compromise, waive or otherwise diminish in any way the confidentiality of the Joint Defense Communications, and the Joint Defense Communications shall continue to be protected by the attorney- client privilege, the work product doctrine, the joint defense privilege and/or any other applicable privilege. (3) Counsel receiving Joint Defense Communications, or any other communications related to the Purchase and Actions, and materials may disclose those communications to their respective clients, consultants and experts, but may not disclose such Joint Defense Communications to any other person without the consent of the Party providing the privileged and confidential information. Any unauthorized disclosure of any Joint Defense Communication to any third -party shall not constitute a waiver of any applicable privilege. 1267989.1 (4) In the event that one or more of the Parties concludes the Purchase and Actions by reason of settlement or otherwise, the Parties shall be obligated to continue to protect the confidentiality of all Joint Defense Communications, as though all Parties were still active in the common litigation endeavor. (5) This Agreement shall apply to any and all consultants retained by each of the Parties and to each of the Parties' legal counsel. (6) This Agreement does not obligate the Parties to exchange or share information, but is intended to protect any information that may be exchanged. (7) The Parties agree to maintain the confidentiality of all Joint Defense Communications. Except as may be required by court order or permitted by agreement of any Party who has not withdrawn, as set forth below, the Parties will not disclose any Joint Defense Communication to any person or entity other than to a Party who has not withdrawn from this Agreement. (8) The Parties agree to use the Joint Defense Communications only in connection with the Purchase and Actions and for no other purpose. 2. Nothing in this Agreement is an admission of liability or fault, or shall serve as an assumption of any obligation or duty, regarding any alleged facts or legal contentions that are or might be alleged with respect to the Purchase and Actions. Except as specifically provided herein, nothing in this Agreement shall waive, release, or otherwise affect any right, claim, interest, cause of action, or defense that any Party may have with respect to any person or entity. 3. Nothing in this Agreement shall be construed to affect the separate and independent representation of each Party by its respective attorney according to what its attorney believes to be the respective Party's best interest. While counsel are obligated to preserve the confidentiality of information exchanged pursuant to this Agreement, counsel are not acting, and will not act, for any person other than their own respective client(s). 4. The Parties hereto expressly acknowledge and agree that no adequate remedy is available at law for a breach of this Agreement and that, in addition to any other remedies available, performance of this Agreement may be specifically ordered or a breach hereof may be enjoined, or both. 5. This Agreement does not form a joint venture or partnership by or among the Parties. 6. Should the interest of any Party diverge from the common interest of the other Party, or either Party wishes to no longer participate in the Agreement, either Party may withdraw from this Agreement by providing written notice. A withdrawing Party shall continue to be bound by this Agreement with regard to any Joint Defense Communication received, learned, or obtained at any time, and this Agreement shall continue to protect all Joint Defense Communications disclosed to the withdrawing Party. Upon withdrawal, the withdrawing Party will cease to be entitled to receive any Joint Defense Communication, and shall return to the remaining Parties all Joint Defense Communications received after the withdrawal. Should any Party withdraw from participation in the Agreement, the Parties agree that, respectively, Diamond Bar may continue to be represented by Shepherd Mullin and WS&S and that Chino 1267989.1 Hills may continue to be represented by Hensley Law Group in the Purchase and Actions and waive any right they may have to contend that the continued representation by these law firms present a conflict of interest under California or Federal law. 7. This Agreement shall be interpreted and enforced pursuant to the laws of the State of California. 8. If any provision of this Agreement is found invalid or unenforceable, the balance of the Agreement shall remain in full force and effect. 9. Each Party represents and warrants to each other Party that its signatory to this Agreement has the authority to bind the Party, and this Agreement does in fact bind the Party. 10. The Agreement may be signed in counterparts, each of which shall be binding on all Parties who are signatory to any counterpart. 11. This Agreement sets forth the entire Agreement of the Parties and no other terms are binding on the Parties. Any changes to this Agreement must be made in writing and signed by the Parties. DATE: September `12 , 2017 CITY OF—DIAMOND BAR (isBy: Dame Fox City Manager DATE: September /Z , 2017 CITY OF CHINO HILLS By: Konradt Bartlam City Manager Approved as to Form: DATE: September,, 2017 WO bR I SMART, APC DATE: September—Ps s 2017 1267989.1 BE CITY OF D HEN7tam7 GROUP By: Mark He 'sley, City A rney CITY OF CHINO HIL S