Much to my amazement, the USA actually included a copy of the fully executed Joint Defense and Cost Share Agreement with the Motion filed by USA attorney Robin Smith in apparent violation of the Agreement – go figure!
One of us would read the Agreement aloud if wordpress offered that feature. Instead,below you will find selected, relevant sections from and a link to the fully executed Agreement (h/t Defendant USA) and some of Judge Duval’s “make-my-day” comments from the official transcript (h/t Robinson Plaintiffs).
This Joint Defense and Cost Share Agreement (“Agreement”) is entered into by and among the United States of America (United States), Board of Commissioners of the Orleans Parish Levee District, Sewerage and Water Board of New Orleans, Board of Commissioners of the East Jefferson Levee District, State of Louisiana (Department of Transportation and Development), The Parish of Jefferson, and Board of Commissioners for the. Port of New Orleans acting through and upon the advice of their respective counsel…
The Agreement applies to Re Katrina Canal Breeches Consolidated Litigation (Levee), which is pending, in the United States District Court for the Eastern District of Louisiana as Civil Action No. 05-4182 (the “Federal Litigation”), and various actions pending in the courts of the State of Louisiana seeking similar relief (the “State Litigation”) (collectively referred to as “the Litigation”).
Recognizing the need to balance the benefits of consolidating the litigation with the potential for conflicting interests, provisions were added that required all parties to waiver rights to seek disqualification, including, but not limited to Sections 11, 13, and 20.
13. The United States of America was, by its own admission, a party to a joint defense agreement (Doc. 18696-3) which expressly states at page 11:
<blockquote>”20. Any conflict of interest arising out of the sharing of Protected Information under this agreement is waived. Each party and its counsel expressly waive any right to seek the disqualification of counsel for any other party or parties to this Agreement in the Litigation or in any substantially related future litigation, on the grounds that such attorney has received Protected Information shared under this Agreement.
The parties to this Agreement expressly agree not to seek such disqualification of an attorney under any applicable statute or code, whether existing or proposed, under any formal or informal rule of court, or under any state or federal common law rule, including but not limited to, the Louisiana Rules of Professional Conduct, and the jurisprudence concerning confidential information and conflicts of interest under the federal common law, including the “substantially related” test. (Emphasis added)
23. Nothing in this Agreement shall establish any agency,joint venture, partnership or similar relationship among or between any of the parties to this Agreement. </blockquote>
The Plaintiffs’ Opposition also includes the portion of the day’s transcipt documenting the interruption, Judge Duval’s initial reaction, and the conversation that then took place in open court – recounted below, in part, while acknowledging the full and accurate version of these events is in the official copy (link above).
I’M GOING TO MOVE ON I’M AWARE OF IT NOW SMITH.
YOUR HONOR CAN WE FILE THIS IN COURT.
YOU CAN FILE IT WHEREVER YOU WANT…
(WHEREUPON THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT.)
IF WE DON’T HAVE ENOUGH TO DO IN THIS GIGANTIC LITIGATION MY GOODNESS GRACIOUS.
AGAIN TO DO THIS AT 5:15 AFTER A WEEK AND A HALF OF TRIAL .
YOU CAN PUT THAT IN YOUR RESPONSE I’M NOT SURE WHEN I’M GOING TO BE ABLE TO TAKE IT UP.
I’M NOT SURE WHAT EFFECT IF ANY IT HAS ON WHAT THIS COURT IS GOING TO DO IN THIS
I’M NOT SURE WHAT IT ALL MEANS..I’LL HAVE TO FIND ALL OF THAT OUT.
WHY NOW WHY NOT BEFORE.
DID THE KNOWLEDGE JUST COME …
THERE ALSO IS AN ISSUE WHETHER THAT ACTION AT THIS POINT IN THE TRIAL ISN’T A CONCOMITANT VIOLATION OF PROFESSIONAL ETHICS.
IT MAYBE INCUMBENT ON TO US DIRECT THAT KIND OF A QUESTION TOWARD THEM?
YOU WILL HAVE TO DO IT AFTER THIS TRIAL IS OVER …
HAVE YOUR LITTLE WHAT I CALL RIGHT NOW GIGANTICALLY OBSCURE SKIRMISHES SOME OTHER TIME.
THE COURT HAS A LOT OF OTHER THINGS TO DO…I FIND THIS AT THE PRESENT TIME MONUMENTALLY INSIGNIFICANT.
HOWEVER, IF IT’S MERITORIOUS MOTION I WILL LOOK AT IT.
IF YOU HAVE A DEFENSE I WILL LOOK AT IT,
BUT IN THE GRAND SCHEME OF THINGS IN THIS TRIAL,
I DON’T [SEE IT] AFFECTING WHETHER THE GOVERNMENT IS LIABLE OR IT ISN’T
WHETHER THE DISCRETIONARY FUNCTION APPLIES OR NOT…
Judge Duval appears to have little interest in this attempt to turn his courtroom into a circus – perhaps he needs to tape the SLABBED-up Uncle Sam post on the door.