Loading...
HomeMy WebLinkAboutRESOLUTION - 31-16 - 10/11/2016 - Comed - Joint Defense Agreement RESOLUTION NO.31-16 A RESOLUTION AUTHORIZING THE MAYOR TO SIGN AND DIRECTING THE VILLAGE CLERK TO ATTEST A JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT WHEREAS,the Village of Elk Grove Village has allocated funds to oppose the Commonwealth Edison"Com Ed West Central Reliability Project"(hereinafter"Project'); and WHEREAS, the Illinois Constitution and the Illinois Intergovernmental Cooperation Act 5 ILCS 220/1 et. seq.,authorize units of government to enter into agreements to jointly exercise their governmental powers; and WHEREAS,the Village has been working with other units of local government which have mutual interests in opposing the "Project' and which deem a Joint Defense and Confidentiality Agreement to be necessary in furtherance of their mutual interests. NOW THEREFORE BE IT HEREBY RESOLVED by the Mayor and Board of Trustees of the Village of Elk Grove Village, an Illinois municipal corporation, located in Cook and DuPage Counties, Illinois as follows: Section 1: The Mayor is hereby authorized to sign and the Village Clerk is hereby directed to attest to that certain Joint Defense and Confidentiality Agreement attached hereto and incorporated herein as fully set forth as Exhibit A: together with, and as approved by, any other unit of local government opposing the Project; and Section 2: That Village staff, corporate counsel,and all other attorneys of the Village are directed and authorized to effectuate and manage the Joint Defense and Confidentiality Agreement in conformance with its terms. Section 3: That this Resolution shall be in full force and effect from and after its passage and approval according to law. VOTE:AYES: 6 NAYS: 0 ABSENT: 0 PASSED this 11th day of October 2016. APPROVED this 11th day of October 2016. APPROVED: Mayor CraiE B.Johnson Village of Elk Grove Village i ATTEST: Judith M.Keegan,Village Clerk EXECUTION COPY JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT This Joint Defense and Confidentiality Agreement ("Agreement") is made among the municipalities that have executed this Agreement (each such signatory individually, a "Party", and collectively,the"Parties"). WHEREAS, the Parties have conferred regarding a transmission line being proposed by Commonwealth Edison Company ("ComEd") sometimes referred to as the ComEd West Central Reliability Project that ComEd has proposed would run along or near portions of the Elgin O'Hare Expressway and within or in proximity to the borders of each of the Parties (hereafter the "ComEd Transmission Line"); WHEREAS, ComEd has indicated that it intends to seek regulatory approval from the Illinois Commerce Commission ("ICC") for siting of the ComEd Transmission Line, which will result in a contested regulatory proceeding in which the Parties, collectively or individually, may participate. WHEREAS, the Parties have a common interest in the matters relating to the ComEd Transmission Line and any related ICC proceeding because, among other reasons, the siting of the ComEd Transmission Line and any regulatory approval related thereto would have a material impact upon each Party and residents residing within each Party; WHEREAS, the purpose of this Agreement is not to prevent or impede the ICC or any other judicial, legislative, or regulatory body, from fully considering all evidence that should properly come before it related to the ComEd Transmission Line, but rather to enable the Parties to minimize the cost and expense and maximize the efficiencies involved in the efforts directed I toward their common interests and positions, and in litigating any issues arising in any ICC proceeding; EXECUTION COPY WHEREAS, the Parties may wish to cooperate and share confidential, sensitive, and privileged information and materials for the purpose of advancing their common interests regarding their respective positions related to the ComEd Transmission Line, and to keep any such information and materials confidential and protected from disclosure to third parties pursuant to any privileges attaching to such information and materials to the extent authorized by law, equity, administrative rules, court rules, or otherwise; WHEREAS, after consultation with their respective counsel, the Parties have determined that their interests with respect to the ComEd Transmission Line, any ICC proceeding related thereto, any other regulatory or litigated proceeding related thereto, and any legislative matter related thereto, are in part common and, to that extent, it may be in their best interest for the Parties and their counsel to exchange information, including confidential information, and pool counsels' respective work product in a joint and common defense effort; WHEREAS, the Parties now wish to record in writing their agreement in order to: (a)avoid any suggestion of waiver of confidentiality, the attorney-client privilege, attorney work product privilege, or any other applicable privilege; (b) avoid any compromise whatsoever of attorney, consultant, expert, or other work product protection; (c)preserve their respective positions regarding the ComEd Transmission Line that may exist now or arise in the future, whether or not it relates to any ICC proceeding or otherwise; and (d) permit the Parties to work together and to obtain the benefits of the common interest and joint defense privilege with respect to such cooperation, in a manner intended to confirm and memorialize the common interest and joint defense privilege that exists by operation of law, and not in any way to limit the scope and applicability of any such common interest; 2 EXECUTION COPY WHEREAS, the Parties acknowledge that they share a joint defense privilege, also known as the common interest rule,with respect to such common issues; and WHEREAS, the Parties have or may obtain separate legal representation from in-house and/or outside independent legal counsel (hereinafter referred to as "Counsel"); NOW, THEREFORE, the Parties in consideration of the recitals above, which are expressly incorporated herein as if restated in full, and the mutual covenants contained in this Agreement, agree to the following: 1. The Parties agree that all information, analysis, and communications related to the ComEd Transmission Line that are otherwise confidential, privileged, and/or protected as to one or more of the Parties shall remain confidential,privileged, and/or protected when communicated to one or more other Parties (including any future, present, or former representative of any Party covered by a privilege applicable to that Party) in furtherance of this joint and common defense ("Joint Defense Information"). In particular (but without limitation), the Parties agree that any communication among the Parties (or their respective officials, officers, employees, consultants, experts, or representatives) and other prospective witnesses, or other communications obtained by any of the undersigned Parties to this Agreement on behalf of another Party to this Agreement are confidential and shall be considered "Joint Defense Information" protected under this Agreement from disclosure to any Third Party. Under this Agreement, a Third Party is defined as any person or entity other than: a. a Party to this Agreement; b. attorneys retained or employed as Counsel by a Party; 3 EXECUTION COPY C. clerical, paralegal, accounting and secretarial staff employed by a Party or Counsel, who need to review such information in connection with the Joint Petition; and d. outside experts and consultants working with a Party or Counsel who assist with regard to the analysis of the ComEd Transmission Line or any regulatory or litigated proceeding or legislative matter related thereto; provided, however, that the requirements of Paragraph 2 must be satisfied prior to disclosing Joint Defense Information to such outside experts or consultants. 2. The Parties acknowledge that they may have a need to share Joint Defense Information with outside experts and/or consultants to formulate their positions in connection with the ComEd Transmission line and any regulatory or litigated proceeding or legislative matter related thereto. In the event a Party is going to share Joint Defense Information with an expert or consultant, the Party or its Counsel must (1) obtain the signature of the expert or consultant on Exhibit "A"; and (2) provide written notice to the other Parties of the information that the Party intends to share with the expert or consultant. Once the expert or consultant has executed Exhibit "A," then the Party or its Counsel must retain the signed original and the Party can share Joint Defense Information with the expert or consultant. 3. The Parties agree that they share and are protected by a joint defense privilege or common interest rule, and that the sharing among themselves of confidential and privileged information on issues common to their interests does not waive any confidentiality, privilege, immunity, or exemption, including but not limited to the common interest privilege, the attorney- client privilege, the attorney work-product doctrine, the trial preparation exclusion, the party communication privilege, and any other applicable privileges, protections, or doctrines. In the event a Party withdraws from this Agreement for any reason, such withdrawing Party shall 4 I EXECUTION COPY continue to be subject to the requirements of this Agreement with respect to all Joint Defense Information obtained by such withdrawing Party up until the time of withdrawal, and the non- withdrawing Parties shall continue to be protected from disclosure of Joint Defense Information as set forth herein. 4. Except as provided herein, neither the Parties nor their Counsel shall disclose Joint Defense Information obtained pursuant to this Agreement to any person or entity not a signatory to this Agreement without first obtaining the consent of all Parties who may be entitled to claim any privilege with respect to such Joint Defense Information. 5. Each of the Parties agree to inform their officials, employees, agents, consultants, experts, and representatives who are provided access to Joint Defense Information about the terms of this Agreement and about the responsibility to abide by the Agreement's terms. 6. In the event that a Party or Counsel is served with legal process, Freedom of Information Request, or other formal or informal request to disclose any Joint Defense Information shared pursuant to this Agreement, the Party or Counsel subject to such process shall immediately inform the other Parties, provide a copy of any such request, and make every reasonable effort to permit the assertion of the joint defense privilege, the attorney-client privilege, the attorney work-product doctrine, the trial preparation exclusion, the party communication privilege, and any other applicable privileges, protections or doctrines, including permitting the other affected Parties a reasonable opportunity to intervene and be heard, and otherwise cooperating fully with the other affected Parties in any deliberation or other formal or informal proceedings relating to the potential disclosure of Joint Defense Information. 5 EXECUTION COPY 7. In the event that a Party reaches a settlement with ComEd or any other Third Party on issues related to the ComEd Transmission Project, such Party shall immediately notify the other Parties and shall provide as much information about the settlement agreement as the settling Party can disclose under the settlement agreement. Regardless of any settlement, the Parties shall continue to be bound by this Agreement to maintain the confidentiality, privileges, protections, or doctrines applicable to all Joint Defense Information previously obtained pursuant to this Agreement. 8. It is expressly understood that nothing contained in this Agreement shall limit the right of a Party to disclose to any Third Party any documents or information independently obtained by that Party from other sources. Nor shall anything in this Agreement create an affirmative obligation on the part of a Party to share information with the other Parties. 9. In reaching this Agreement, the Parties acknowledge that their respective Counsel represent only the specific Party associated with Counsel. The Parties also acknowledge that, while they have common interests, some positions, claims, or defenses available to one Party may not be available to the other Party, and further, that the interests of the Parties may differ and may, in certain respects, potentially be adverse to one another. Notwithstanding the execution of this Agreement, each Party reserves its rights to assert any and all claims or i defenses available to it with respect to the ComEd Transmission Line. This Agreement shall not i be deemed a waiver of any right or claim any Party may have against anyone including each other. Specifically, it is understood that the Parties reserve all rights, claims, defenses, and causes of action that each may have against another Party. Nothing in this Agreement shall prohibit a Party from asserting any claims or defenses that it may have or acquire against each 6 EXECUTION COPY other. Except as expressly provided in this Agreement, nothing in the Agreement shall be construed to create a claim or defense on the part of any Party. 10. Each Party further agrees that, should it (or its officials, employees, agents, consultants, experts, or representatives) testify at hearing, trial, or some other proceeding, including deposition, the other Party's attorneys will not be disqualified from examining or cross-examining that Party (or its officials, employees, agents, consultants, experts, or representatives) for any reason arising out of the existence of this Agreement, including the ground that the attorney has been privy to Joint Defense Information. No Joint Defense Information may be used in any proceeding directly or indirectly against the Party originating the information, unless such information is obtained outside of this Agreement through formal discovery. Nothing in this Agreement will prevent the questioning of any witnesses based on information or analysis that has been developed independent from the joint defense efforts, even if the subject matter of such questioning overlaps with the subject matter of Joint Defense I Information. 11. Nothing in this Agreement shall be construed to prevent or limit the right of any Party to seek and obtain information or documents from another Party through formal discovery j li even if the subject of the information or documents, or the information or documents themselves, may have been initially disclosed or communicated within the context of this Agreement or subject to privileges, protections, doctrines, or confidentiality arising from this Agreement. Provided, however, that furnishing information or documents pursuant to this Agreement shall not act as a waiver of any privilege, protection, doctrine, or confidentiality concerning such information or documents. 7 EXECUTION COPY 12. If new claims or issues arise related to the ComEd Transmission Line, communications by the Parties and their respective Counsel with each other concerning those new claims or issues shall be subject to the joint defense privilege, the attorney-client privilege, the attorney work-product doctrine, the trial preparation exclusion, the party communication privilege, and any other applicable privileges, protections or doctrines, shall remain protected by such applicable privileges, protections, or doctrines, and are subject to this Agreement. This Agreement also confirms that, to the extent that Counsel and/or the Parties have already been in communication with each other prior to the execution of this Agreement, concerning any aspect of the ComEd Transmission Line or on related issues common to their interests, their communications and work product were and are subject to any applicable privileges, protections or doctrines, remain protected by such applicable privileges, protections or doctrines, and now are subject to this Agreement. Further all information exchanged between the Parties in the course of any communications prior to execution of this Agreement are and shall continue to be treated as privileged and confidential. 13. The Parties agree that they will not assert that any law firm or attorney is disqualified from representing its current client(s) or any other clients because they are Parties to this Agreement or for any other reason related to the ComEd Transmission Line or any ICC proceeding including, without limitation, for any reason arising out of the existence of this Agreement, including that the law firm or attorney has been privy to Joint Defense Information. However, such law firm or attorney shall not use Joint Defense Information for the benefit of any other client that is not a Party to this Agreement. 8 EXECUTION COPY 14. Illinois law shall govern the validity, construction, interpretation, and effect of this Agreement to the extent not preempted by principles of federal common law, in which case federal common law shall govern. 15. Nothing in this Agreement shall be construed to affect the separate and independent representation of each Party by its respective Counsel according to what that Counsel believes to be in the Party's best interest. Nothing contained in this Agreement has the effect of transforming Counsel for any Party into Counsel for any other Party. 16. Nothing in this Agreement shall establish any agency,joint venture, partnership, or similar relationship among the Parties. 17. Any Party to this Agreement may withdraw from it at any time by serving notice of withdrawal on the other Parties. Upon withdrawal, the withdrawing Party and its Counsel shall promptly return to the other Parties any and all documents provided pursuant to or otherwise subject to this Agreement. Such Party and Counsel shall continue to be bound by this Agreement to maintain the privileges, protections, doctrines, and confidentiality applicable to any and all information previously obtained pursuant to this Agreement. 18. The Parties agree to cause their Counsel to execute such documentation as is necessary to apply the terms and conditions of this Agreement. The Agreement may be executed using multiple counterparts, with faxed or other electronically transmitted signatures, which shall be deemed original signatures, and when compiled shall constitute a single document. 19. This Agreement may not be amended or modified except by a written agreement signed by each signatory hereto. However, a municipality with the common interests of those who are Parties to this Agreement may, with the consent of each of the then-existing Parties to 9 EXECUTION COPY this Agreement, become a Party hereto without the necessity of a new and separate agreement being signed by all signatories. [REMAINDER OF PAGE INTENTIONALLY BLANK] i I 10 EXECUTION COPY IN WITNESS WHEREOF, THE UNDERSIGNED PARTY HAS EXECUTED THIS JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT. VILLAGE OF ELK GROVE,ILLINOIS By: Title: (, Dated: (/ d1 G �� EXECUTION COPY IN WITNESS WHEREOF, THE UNDERSIGNED PARTY HAS EXECUTED THIS JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT. VILLAGE OF HANOVER PARK,ILLINOIS By: Title: Dated: i I i EXECUTION COPY IN WITNESS WHEREOF,THE UNDERSIGNED PARTY HAS EXECUTED THIS JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT. VILLAGE OF ITASCA,ILLINOIS By: Title: Dated: EXECUTION COPY IN WITNESS WHEREOF,THE UNDERSIGNED PARTY HAS EXECUTED THIS JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT. VILLAGE OF ROSELLE,ILLINOIS By: Title: Dated: i I EXECUTION COPY IN WITNESS WHEREOF,THE UNDERSIGNED PARTY HAS EXECUTED THIS JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT. VILLAGE OF SCHAUMBURG,ILLINOIS By: Title: Dated: EXECUTION COPY EXHIBIT A TO JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT I, , having been duly sworn on oath, state that (1) I am an expert/consultant of the Party seeking to disclose information to me; (2) I have been given and have read the Joint Defense and Confidentiality Agreement; and (3) I understand that information and/or documents which are to be disclosed to me by (name or Party or Counsel) are CONFIDENTIAL AND PRIVILEGED JOINT DEFENSE INFORMATION and to be used by me solely to assist in connection with my work relating to the ComEd Transmission Line. To the extent I have been given or acquire access to Joint Defense Information, I will not disclose, discuss, or exhibit such information in any way except to those persons whom I know are authorized under the Joint Defense and Confidentiality Agreement to have access to such information. I will return to the Party or Counsel, on demand, all materials containing Joint Defense Information, including any copies and notes that I have prepared relating in any way to Joint Defense Information. Dated: Signature of Recipient f