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HomeMy WebLinkAboutVeolia North America - Joint Defense Privilege Agreement 2021 08 10 JOINT DEFENSE PRIVILEGE AGIZEEMENT This Joint Defense Privilege Agreement ("Agreement") is made and entered into by and between the undersigned counsel ("Counsel"), and their respective clients, CITY OF WINTER SPRINGS and VEOLIA NORTH AMERICA — SOUTH, LLC ("Clients") (Counsel and Clients are referred to as "Party" or "Parties"throughout the Agreement), in order to cooperate with one another to the extent practicable concerning 2020/2021 DEP Investigation and Enforcement Actions pertaining to City of Winter Springs Wastewater Treatment Facilities (the "Matter"). WHEREAS,by virtue of that certain Agreement for Utilities Operations,Maintenance and Management Services by and between the Clients,dated October 21, 2019 ("O&M Agreement"), the Parties share responsibilities related to the operation of the Wastewater Treatment Facilities, and although the operation of the plant in 2020 and 2021 resulted in unintended discharges of treated effluent, the Parties are aligned in their efforts to demonstrate their best efforts and good faith in management of the facility, and their diligence in discovering, responding to, and mitigating for those discharges-, WHEREAS,the Parties have concluded that it is in their common and individual interests to cooperate with one another by sharing certain privileged and/or confidential information concerning certain issues or matters, including the Matter, in the possession of each Party or each Party's counsel. The Parties wish by this Agreement to mernorialize their understanding and to provide, to the full extent permitted by applicable legal standards, for sharing such information without waiving any privileges against disclosure that might attach thereto and to docurnent the understanding concerning such sharing of information. Accordingly, the Parties agree as follows: 1. The Parties agree that they have and will continue to, from time to time choose to share and exchange certain privileged and/or confidential materials concerning certain matters or issues as to which they share common interests, and to exchange, or to have their respective counsel exchange, certain privileged and/or confidential information, including theories, mental impressions, strategy, interpretation of relevant legal authority, memoranda, witness statements, incident reports, interview reports,communications, security systems related to the utilities system and infrastructure, trade secrets, whether oral or written, and other documents, information, and materials, containing the confidences of the Parties, relevant to those cornmon interests (collectively"Joint Privilege Materials") on the understanding and Agreement that: a. Joint Privilege Materials shared among the Parties or their counsel may contain confidential and privileged communications subject to the attorney-client privilege-, b. Joint Privilege Materials shared among the Parties or their counsel may contain protected attorney work product; C. Joint Privilege Materials shared among the Parties or their counsel may be protected by other privileges and rules of confidentiality; d. In accordance with applicable legal standards, exchanges have been and will be made only of information concerning issues as to which the Parties believe that they share common interests, including issues or matters relating to the Matter. 2. The Parties agree that they shall be under no affirmative obligation to share any information with one another. However, given the parties' related interests, the Parties agree to fully cooperate with each other in successfully defending the Matter. 3. The Parties agree that exchanging or sharing of Joint Privilege Materials that are otherwise protected against disclosure by the attorney-client privilege,the work product doctrine, or any other applicable privileges and rules of confidentiality and public records exemptions, will not waive any applicable privilege or protection from disclosure, will not diminish the confidentiality or records exemption of exchanged or shared materials, and will not be asserted as a waiver of any such privilege or exemption by any Party receiving such Joint Privilege Materials. The Parties also understand that sharing or exchanging otherwise nonprivileged, nonconfidential, or nonprotected materials will not bestow any privilege, protection, confidential status, or immunity from production upon such materials. Uncertainty as to the applicability of a privilege or other confidential status shall result in treating the material as privileged and/or confidential until such time as the uncertainties are resolved by agreement of the Parties or court order. 4. The Parties agree that neither they nor their counsel will furnish or disclose any Joint Privilege Materials received from one another, or the contents of Joint Privilege Materials, to any other person or entity,except to attorneys representing the Parties identified herein, or their employees,consultants,agents or the Parties' insurers,without the prior written consent of counsel to the Party that provided the Joint Privilege Materials and is entitled to assert the privilege or other protection, or pursuant to a court order. 5. Joint Privilege Materials shared under this Agreement, and the confidential and/or privileged or exempt information contained therein,are to be used solely by counsel for the Parties in the preparation of claims, defenses and, if applicable, counterclaims or cross-claims on behalf of their respective clients. Neither the Joint Privilege Materials nor the confidential and/or privileged or exempt information contained therein may be used for any other purpose without the prior written consent of the Party or Parties entitled to assert privileges with respect to such materials. 6. The Parties agree that Joint Privilege Materials shall not be taken out of the custody of the undersigned counsel and that no copies of Joint Privilege Materials shall be made except for use by undersigned counsel, other attorneys within those firms representing the Parties, or the employees, consultants, or agents of the firms representing the Parties, or employees or agents of the Parties, or the Parties' insurers. 7. If any other person or entity requests or demands,by subpoena or other means,any Joint Privilege Materials, the Party receiving the request or demand shall, through counsel, immediately notify counsel for the Party that provided the materials. The Parties shall cooperate to take all necessary steps to permit the assertion of all applicable rights,privileges,and protections with respect to Joint Privilege Materials sought by such other person or entity including, but not 2 limited to, asserting an exemption to the requirements of chapter 119, Florida Statutes, or claim that a document does not constitute a public record. 8. Neither the substance of this Agreement nor the exchange of Joint Privilege Materials shall be asserted by any Party as a basis for any claim that any counsel to any other Party is disqualified from representing such Party in this or any other matter whatsoever. 9. Upon prior written notification to the other Party's or Parties' undersigned counsel, any Party may withdraw from this Agreement. Any such withdrawal from this Agreement shall have prospective effect only, and any Joint Privilege Materials made available by any Party prior to such withdrawal shall continue to be governed by the terms of this Agreement.Upon withdrawal by any Party from this Agreement,within sixty(60)days,the withdrawing Party shall either return all written or recorded Joint Privilege Materials and copies thereof within its possession to the Party that provided the materials or shall supply a written statement to the originating Party that such writings or recordings, and all copies thereof, have been destroyed if permitted by law. 10. The Parties agree that this Agreement does not in any way constitute a waiver of any right of any Party to this Agreement to seek indemnification,contribution, or other relief from any person or entity, including any of the other Parties to this Agreement. 11. By entering into this Agreement, the Parties do not waive or disavow, in any way, the common interests privilege and protection that has previously attached to any materials or information shared among or between the Parties. 12. This Agreement shall be construed and interpreted under and be governed by the laws of the State of Florida. The Agreement is in no way intended to encourage or commit a violation of law or unlawful interference with an official proceeding or judicial process.Each Party acknowledges and agrees with that intention and understanding. 13. No waiver, modification, or amendments of any term, condition, or provision of this Agreement shall be valid or of any force or effect, unless in writing, signed by the Party to be bound and specifying the nature and extent of such waiver, modification, or amendment. 14. Each Party has consulted with its counsel and is voluntarily executing this Agreement with full knowledge of the terms, conditions,waivers,rights, interests, and obligations contained herein. 15. Each Party to this Agreement expressly recognizes that this Agreement results from a negotiation process in which each Party was represented by counsel and contributed to the drafting and reviewing of this Agreement. Given this fact, no legal or other presumptions against any Party drafting and reviewing this Agreement concerning its construction or interpretation accrue to the benefit of any Party to this Agreement and each Party expressly waives the right to assert any such presumptions in any proceedings or disputes connected with, arising out of or involving this Agreement. 16. Additional persons or entities may be permitted to join the Agreement, or to rejoin 3 the Agreement after withdrawal, only on unanimous consent of all Parties to the Agreement. 17. Unless the Parties agree otherwise in writing,the Agreement is not intended to,and shall not be interpreted to, create any express or implied obligations to share expenses or costs related to the Matter or Joint Privilege Materials (including attorneys' or experts' fees and disbursements). 18. All notices, requests, and demands required by the Agreement shall be in writing and shall be deemed to have been given when received after mailing notice by first-class mail, by delivering notice by hand or by commercial delivery service such as Federal Express or UPS, or bye ailing notice to Counsel. 19, Each Party specifically acknowledges that any Client may become a witness, whether voluntarily or otherwise,in connection with the Matter. If a Client or the Client's employee becomes a witness, the Agreement shall not create a conflict of interest that would disqualify Counsel from representing their respective Clients based on the Agreement or sharing Joint Privilege Materials. By entering into the Agreement, the Clients and their respective Counsel knowingly and intelligently waive any conflicts of interest and other objections based on sharing Joint Privilege Materials under the Agreement. By waiving all conflicts of interest and other objections, the Clients are specifically aware that the Agreement does not require a Party to share particular information and that it is the Party's sole decision whether to share information with the other Parties. Each Client understands and acknowledges the following: a. That Client is represented only by Client's own Counsel in this Matter and that, while Counsel representing the other Clients have a duty to preserve the confidences disclosed to the pursuant to the Agreement,they are not acting as counsel to any Party other than their own Client, b. Each Client's Counsel may have the duty and obligation in the course of representing their own Client to take actions contrary to the interests of the other Parties in connection with the Matter or otherwise. c. No Counsel owes a fiduciary duty or obligation to any Party or Client other than Counsel's own Client. d. No Counsel shall be disqualified from examining or cross-examining any Party because of that Counsel's or their Client's participation in the Agreement or receipt of Joint Privilege Materials. e. No Party shall claim or assert, based on participation in the Agreement, that Counsel's representation of a Party (excluding Counsel's own Client),or the receipt of Joint Privilege Materials under the Agreement, has caused Counsel to have a conflict of interest in connection with the representation of any other Party to the Agreement in a matter pending as of the effective date of the Agreement or in any future representation. The Parties agree that Counsel will not be disqualified in this or any other matter under Rule 4-1.7 of the Florida Rules of Professional Conduct for receiving Joint Privilege Materials that cannot be used directly on behalf of Counsel's Client. 4 The Parties waive all objections and motions to disqualify Counsel based on actual or anticipated examination or cross-examination of any other Party. The Parties also waive the right to take Counsel's testimony based on Counsel's participation in the Agreement or the disclosure of Joint Privilege Materials. Counsel represent and warrant that they explained to their respective Clients the terms, benefits, and limitations of the Agreement, including the conflict waivers, the provisions of Section 20 regarding use of Joint Privilege Materials provided by a Withdrawing Party in direct and cross- examination, and the use and limitations on use of Joint Privilege Materials. By their signatures below, the Clients represent that they considered the foregoing and the Agreement's terms, they had the opportunity to ask for and receive privileged information before deciding whether to enter into the Agreement, and they concluded that the Agreement's benefits outweigh its limitations and burdens. 20. A Party may withdraw from the Agreement at any time by giving fifteen (15) business days' written notice to all other Parties, in which case the Agreement will no longer be operative as to the Withdrawing Party("Discretionary Withdrawal"). The Withdrawing Party in a Discretionary Withdrawal shall continue to protect all communications and information, including Joint Privilege Materials, covered by the Agreement and disclosed to the Withdrawing Party before the Withdrawing Party's written notification to withdraw from the Agreement. The Withdrawing Party in a Discretionary Withdrawal shall return, within ten (10) business days of the Withdrawing Party's written notice of withdrawal, all Joint Privilege Materials, including copies, summaries, and excerpts of Joint Privilege Materials, to the Originating Parties. If any Party: a. ceases to have a common interest sufficient to support either participation in the Agreement or a joint defense with the Parties; or b. asserts or takes a position in the Matter that is contrary, inconsistent, or adverse to the common interests underlying the Agreement; that Party shall immediately withdraw from the Agreement and give written notice of the withdrawal to all other Parties, but shall continue to protect all communications and information, including Joint Privilege Materials, covered by the Agreement("Mandatory Withdrawal"). The Withdrawing Party in a Mandatory Withdrawal will immediately cease to be part of the Agreement and shall forfeit all rights to receive Joint Privilege Materials (and the Discretionary Withdrawal's 15-day notice period will not apply). On demand by an Originating Party, the Withdrawing Party in a Mandatory Withdrawal will immediately return all Joint Privilege Materials, including copies, summaries, and excerpts of Joint Privilege Materials, to the Originating Parties. Should a Party fail to withdraw as required by the Agreement,that Party will be deemed to have withdrawn as of the date the Party ceased to have a common interest, triggering a Mandatory Withdrawal as provided for in the Agreement. Following either a Discretionary or Mandatory Withdrawal, the Withdrawing Party: a. Is not entitled to receive or access Joint Privilege Materials and will not request Joint Privilege Materials. b. May not make direct or derivative use of Joint Privilege Materials, except Joint Privilege Materials supplied by the Withdrawing Party. Prohibition on the Withdrawing Party's 5 use of Joint Privilege Materials include, without limitation, direct or derivative use of Joint Privilege Materials to cross-examine a current Party to the Agreement. The Parties agree that they are free to make derivative use of Joint Privilege Materials obtained from the Withdrawing Party including, without limitation, direct or derivative use of Joint Privilege Materials to cross-examine a current Party to the Agreement and the Withdrawing Party. The Parties may agree to terminate the Agreement at any time,but the Agreement's confidentiality and nondisclosure provisions shall survive termination. Termination of or withdrawal from the Agreement does not authorize a violation of the Agreement or operate as a waiver of the Agreement's terms or conditions. In particular, the effect of termination or withdrawal, whether a Discretionary or Mandatory Withdrawal, is prospective only and shall not affect the Parties' (including the Withdrawing Party's) obligations to continue to hold confidential all Joint Privilege Materials exchanged prior to termination or notice of withdrawal in accordance with the Agreement's terms.Termination or withdrawal shall not alter the Parties'(including a Withdrawing Party's) obligation not to challenge another Party's Counsel on conflict of interest grounds or otherwise claim a fiduciary relationship with any other Party's Counsel (see Section 19). No accord or understanding entered into between any Party and anyone else, including, without limitation, any other party to the Matter who is not also a Party to the Agreement, shall affect or diminish any right or privilege attaching to Joint Privilege Materials exchanged or disclosed under the Agreement, or the Agreement's provisions regarding nondisclosure to third persons who are not Parties to the Agreement. 21. Nothing herein is intended to modify the O&M Agreement which shall remain in effect pursuant to the terms and conditions stated therein. 22. Notwithstanding any other provision of this Agreement, this Agreement shall be subject to Ch. 119,Florida Statutes and other applicable provisions of law related to public records. Should any Party assert an exemption to the requirements of chapter 119,Florida Statutes,or claim that a document does not constitute a public record,the burden of establishing such an exemption or excluding a document as a public record, by way of injunctive or other relief as provided by law, shall be upon the Party asserting the exemption or the claim that a document does not constitute a public record. Additionally, nothing in this Agreement shall be construed, nor is intended to, expand the scope of chapter .119, Florida Statutes, or make into a public record a document that is not a public record under current law. 23. By signing the Agreement, each of the undersigned Counsel certify that they: a. Are fully authorized to enter into and execute the Agreement on their own behalf and on behalf of their respective Clients. b. Have explained the Agreement to their respective Clients. C. Agree to be bound by the Agreement's terms. By signing the Agreement, each of the undersigned Clients certify that they: a. Know and understand the Agreement's terms. b. Desire to become a Party to the Agreement and enter into the Agreement voluntarily.. 6 C. Give fully informed consent and agreement to the conflict waivers provided in Section 19 of the Agreement and in the other Agreement provisions. d. Agree to be bound by the Agreement's terms. IN WITNESS WHEREOF, the Parties, by and through their undersigned attorneys, have executed this Agreement as of the last date of execution below„ Accepted and Agreed by: Anthony A. Garganese„ Esq. City of Winter Spt.i lgs Attorney for City of Winter Springs By a m m Date: .m. .. -.. . . a . Its: t ,. r Date: ze J Nick Dancaescu, Esq. VEOLIA NORTH AMERICA—SOUTH, Attorney for VEOLIA NORTH AMERICA— LLC SOUTH, LLC J By: Date: Keith Oldewurtel Its:IIIIIIII-EVP& COO Date: July 30, 2021 7