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
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ATTEST:
Judith M.Keegan,Village Clerk
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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
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toward their common interests and positions, and in litigating any issues arising in any ICC
proceeding;
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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;
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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;
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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
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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.
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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
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defenses available to it with respect to the ComEd Transmission Line. This Agreement shall not
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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
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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
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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
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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.
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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.
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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
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this Agreement, become a Party hereto without the necessity of a new and separate agreement
being signed by all signatories.
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IN WITNESS WHEREOF, THE UNDERSIGNED PARTY HAS EXECUTED THIS
JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT.
VILLAGE OF ELK GROVE,ILLINOIS
By:
Title: (,
Dated: (/ d1 G ��
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IN WITNESS WHEREOF, THE UNDERSIGNED PARTY HAS EXECUTED THIS
JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT.
VILLAGE OF HANOVER PARK,ILLINOIS
By:
Title:
Dated:
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IN WITNESS WHEREOF,THE UNDERSIGNED PARTY HAS EXECUTED THIS
JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT.
VILLAGE OF ITASCA,ILLINOIS
By:
Title:
Dated:
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IN WITNESS WHEREOF,THE UNDERSIGNED PARTY HAS EXECUTED THIS
JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT.
VILLAGE OF ROSELLE,ILLINOIS
By:
Title:
Dated:
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IN WITNESS WHEREOF,THE UNDERSIGNED PARTY HAS EXECUTED THIS
JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT.
VILLAGE OF SCHAUMBURG,ILLINOIS
By:
Title:
Dated:
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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
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