Escolar Documentos
Profissional Documentos
Cultura Documentos
THURSTON COUNTY, WA
SUPERIOR COURT
July 12, 2017
Linda Myhre Enlow
Thurston County Clerk
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
7 FOR THURSTON COUNTY
8 WASHINGTON STATE DEPARTMENT OF
TRANSPORTATION,
9 No. 16-2-00980-34
Plaintiffs,
10 (Consolidated with Cause No.
v. 16-2-04826-34)
11 SEATTLE TUNNEL PARTNERS, a joint DECLARATION OF DAVID
venture,
12 GOODNIGHT IN SUPPORT OF
WSDOTS JOINDER IN MOTION TO
Defendants.
13 EXTEND THE CASE SCHEDULE
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HITACHI ZOSEN U.S.A. LTD.,
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Plaintiff,
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v.
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WASHINGTON STATE DEPARTMENT OF
16 TRANSPORTATION and SHANNON &
WILSON, INC.,
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Defendants.
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SEATTLE TUNNEL PARTNERS, a joint
19 venture,
20 Plaintiff,
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v.
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SHANNON & WILSON, INC., a Washington
23 corporation; and WSP USA, INC., formerly
known as PARSONS BRINCKERHOFF,
24 INC., a New York corporation,
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Defendants.
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David R. Goodnight
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3 1. I am a legal practice assistant employed by the law firm of Stoel Rives LLP, a
citizen of the United States, over the age of 18 years, not a party to this matter, and competent to
4 testify herein.
5 2. On the date indicated below, I caused to be delivered one true and correct copy of
the foregoing document on counsel of record as follows:
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7 Attorneys for Defendant and Third Party
Plaintiff Seattle Tunnel Partners
8 hand delivery via legal messenger
John Parnass, WSBA #18582 overnight delivery
9 Zachary Tomlinson, WSBA #35940 mailing with postage prepaid
Sarah S. Washburn, WSBA #44418 e-service per agreement of the parties:
10 PACIFICA LAW GROUP, LLP john.parnass@pacificalawgroup.com
1191 Second Avenue, Suite 2000 zak.tomlinson@pacificalawgroup.com
11 Seattle, WA 98101 sarah.washburn@pacificalawgroup.com
Phone: 206 245-1700
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Joseph L. Luciana, III, PA Bar #50286* overnight delivery
13 John R. Dingess, PA Bar #28861* mailing with postage prepaid
Samantha L. Brutout, PA Bar #203553* e-service from King County ECF system
14 Brian R. Davidson, PA Bar #74684* e-mail service per agreement of the parties:
James S. Malloy, PA Bar #89354* jluciana@dfllegal.com
15 DINGESS, FOSTER, LUCIANA, DAVIDSON jdingess@dfllegal.com
& CHLEBOSKI, LLP sbrutout@dfllegal.com
16 20 Stanwix Street, 3rd Floor bdavidson@dfllegal.com
Pittsburgh, PA 15222 jmalloy@dfllegal.com
17 *Admitted pro hac vice
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
7 IN AND FOR THE COUNTY OF THURSTON
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MOTION TO CONTINUE HEARING DATE FOR PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
WSDOTS MOTION FOR PARTIAL SUMMARY SUITE 2000
JUDGMENT SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 HITACHI ZOSEN U.S.A. LTD.,
2 Fourth-Party Plaintiff,
3 v.
19 Plaintiff,
20 v.
21 SHANNON & WILSON, INC. a Washington
22 corporation and WSP USA, INC. formerly
known as PARSONS BRINCKERHOFF,
23 INC., a New York corporation,
24 Defendants.
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MOTION TO CONTINUE HEARING DATE FOR PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
WSDOTS MOTION FOR PARTIAL SUMMARY SUITE 2000
JUDGMENT SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 STP moves for an Order continuing the September 1, 2017 hearing date on WSDOTs
2 Motion for Partial Summary Judgment for a period of sixty (60) days to permit STP an
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opportunity to (i) take the previously-noticed depositions of specific fact witnesses of WSDOT
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and of defendants Shannon & Wilson, Inc. (S&W) and Parsons Brinckerhoff (WSP) (the
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parties who, along with WSDOT, drafted the key Contract Documents at issue in STPs Type 1
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7 differing site condition claim and WSDOTs motion for partial summary judgment), and (ii)
8 obtain necessary and relevant document discovery from WSDOT, S&W and WSP. This focused
9 discovery (which is only a subset of all discovery being sought in these consolidated cases) will
10 establish evidence that is germane to disputed issues of material fact and is critical to STPs
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ability to oppose WSDOTs motion for partial summary judgment relating to STPs Type 1
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differing site condition claim.
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On December 4, 2013, STPs Tunnel Boring Machine (TBM) struck a previously
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15 undisclosed 119 foot, 8 diameter steel well casing, which S&W installed on behalf of WSDOT
16 in September 2002. STP submitted a Type 1 differing site condition claim (Type 1 DSC
17 Claim) to WSDOT on December 12, 2013 on the grounds that WSDOTs 119 foot steel well
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casing was not identified in the relevant Contract Documents drafted by S&W and WSP on
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behalf of WSDOT, namely, the Geotechnical Baseline Report (GBR) and the Geotechnical and
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Environmental Data Report (GEDR). WSDOT denied STPs Type 1 DSC Claim and the
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parties submitted their dispute to a Dispute Review Board established under the Design-Build
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23 Contract. The Parties submitted written briefs to the DRB and conducted a two-day proceeding
24 before the DRB, at which witnesses appeared and evidence was presented. The DRB issued its
25 written Recommendation, dated April 28, 2015, in which the Board agreed with STP and stated
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MOTION TO CONTINUE HEARING DATE FOR PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
WSDOTS MOTION FOR PARTIAL SUMMARY SUITE 2000
JUDGMENT - 1 SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 that The DRB thus concludes that the steel casing in TW-2 meets the requirements of a Type 1
2 Differing Site Condition.
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WSDOT filed its Motion for Partial Summary Judgment (Motion) on June 23, 2017
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concerning STPs Type 1 DSC Claim and noticed its Motion for hearing on September 1, 2017,
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before STPs noticed and relevant depositions can be completed and before relevant document
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7 production from WSDOT, S&W and WSP is complete. WSDOTs Motion (and STPs
8 opposition) will necessarily raise several genuine issues of material facts that are clearly in
9 dispute between WSDOT and STP regarding STPs Type 1 DSC Claim, including, in particular,
10 WSDOTs allegations regarding the reasonable interpretation of and reasonable reliance upon
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WSDOTs Contract Documents, which failed to identify the presence of WSDOTs 119 foot
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steel well casing in the tunnel alignment. WSDOTs Motion was scheduled without consulting
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with any of the parties regarding timing and, more importantly, is premature and prejudicial to
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15 STPs ability to oppose the Motion based on the current state of discovery in this matter. Thus,
16 STP requests that the Court continue the hearing date for WSDOTs Motion until early
17 November 2017 to allow STP a reasonable opportunity to complete the limited and focused
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discovery necessary for the proper resolution of the Motion and prevent prejudice to STP.
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I. RELIEF REQUESTED
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STP requests that the Court continue the September 1, 2017 hearing date for WSDOTs
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Motion and re-note the hearing for November 2017 allowing the parties a reasonable opportunity
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7 comprehensive written submissions and PowerPoint presentations submitted by both parties, the
8 DRB held two days of hearings on the DSC Claim in March 2015 during which the parties
9 presented witnesses, submitted 44 common exhibits, and additional exhibits and materials
10 separately for the DRBs consideration. Id., 6. In its April 28, 2015 written Recommendation,
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the DRB concluded that the TBMs encounter with the 119 foot steel pipe was a Type 1 differing
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site condition. Id., 7, Ex. A.
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Rather than accept the DRBs Recommendation on STPs DSC Claim, WSDOT filed this
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15 lawsuit, which now includes S&W, WSP and several other third-parties. Id., 8. To date, the
16 parties have conducted written discovery, are still in the process of producing documents, and
17 have taken only a handful of depositions. Id., 9. WSDOT has recently stated that it will not be
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substantially complete with its production of documents until July or August. Id., 10.
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S&W installed the 119 foot steel well casing on behalf of WSDOT in September 2002,
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and conducted tests on the well up until March 2010. Id., 11. S&W and WSP drafted the key
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Contract Documents at the heart of STPs Type 1 DSC Claim (the GBR and the GEDR) on
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23 behalf of WSDOT. Id., 12. To date, S&W has produced some relevant documents, a limited
24 number of emails, and has refused to produce 100 boxes of hard-copy documents in electronic
25 format, as required under the Discovery Protocol applicable to this case. Id., 13. WSP has
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produced no documents to date, has not provided a timetable for when its document productions
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MOTION TO CONTINUE HEARING DATE FOR PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
WSDOTS MOTION FOR PARTIAL SUMMARY SUITE 2000
JUDGMENT - 3 SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 will be complete, and is refusing to produce certain relevant documents requested by STP in
2 discovery. Id., 13 and Ex. F. Moreover, WSDOT has denied STPs request to produce
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custodian emails from a WSP former employee who, while using a WSDOT email address,
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participated in the drafting of the GBR. Id., 14.
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In May 2017, STP noticed depositions of 18 WSDOT, S&W, and WSP witnesses whom
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7 have been identified as having relevant knowledge regarding the GBR, the GEDR, and the 119
8 foot steel pipe installed and tested by Shannon & Wilson on behalf of WSDOT. Id., 15. Those
9 depositions are scheduled to take place between August 15, 2017 and October 12, 2017, when
10 STP hopes the parties will be substantially complete with their document productions. Id.
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On June 23, 2017, without consulting any of the other parties, WSDOT filed the Motion
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and noticed it for hearing on September 1, 2017. Id., 16.1 STP sent a letter to WSDOT
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advising that the September 1 hearing date was premature for several reasons and should be re-
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15 noticed until early November so that the parties can adequately and reasonably complete any
16 necessary discovery for the Motion. Id., 17, Ex. B. Without any explanation or response to the
17 points raised in STPs letter, WSDOT hastily denied STPs request by simply stating that
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WSDOT does not think more time should be required to respond to WSDOTs Motion. Id., 18,
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Ex. C.
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On July 6, 2017, S&W and WSP filed a joint motion to continue the June 25, 2018 trial
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date in this matter (the Joint Motion to Continue). Id., 19, Ex. D. WSDOT has stated in a
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23 July 6, 2017 letter to Special Master Judge Armstrong that it intends to join the Joint Motion to
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It is the customary practice to consult with the other parties to the litigation on the timing of the hearing for a
motion for summary judgment. WSDOT did not follow that standard practice and notified STP only after
25 WSDOTs Motion had already been noted for hearing. Thus, STP did not have the opportunity to raise and discuss
the issues noted herein before WSDOTs Motion was filed and WSDOT has dismissively rejected STPs attempts to
26 do so subsequently.
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MOTION TO CONTINUE HEARING DATE FOR PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
WSDOTS MOTION FOR PARTIAL SUMMARY SUITE 2000
JUDGMENT - 4 SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 Continue. Id., 20, Ex. E. As part of its Joint Motion to Continue, S&W and WSP stated that
2 their Collection efforts across such an expansive time period cannot be accomplished in mere
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weeks. Id., Ex. D. S&W and WSP further stated that Quite simply, the current case schedule
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does not grant S&W and WSP an appropriate opportunity to understand the produced discovery
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in order to prepare for (and take) the dozens of depositions necessary so that they can represent
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7 their respective clients and that These same hurdles substantially effect other case schedule
8 milestones, including the interrelated expert disclosure and dispositive motion deadline. Id.
15 This Motion is based on the Declaration of John Parnass and all documents and evidence
17 V. ARGUMENT
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Civil Rule 56(f) allows the court to order a continuance to allow the non-moving party to
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conduct further relevant discovery. See Tellevik v. Real Prop., 120 Wn. 2d 68, 91, 838 P.2d 111,
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123 (1992) (CR 56(f) continuance appropriate where relevant discovery not yet completed); see
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also Crossfit, Inc. v. Nat'l Strength & Conditioning Ass'n, No. 14-CV-1191 JLS (KSC), 2015
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23 WL 12434308, at *6-7 (S.D. Cal. July 20, 2015) (Courts should grant a motion for continuance
24 under Rule 56 fairly freely where party has not had realistic opportunity to pursue discovery
25 relevant to its theory.); see also Keck v. Collins, 181 Wn. App. 67 (2014) ([T]rial court must
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make justice its primary consideration in ruling on a motion for continuance.).
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MOTION TO CONTINUE HEARING DATE FOR PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
WSDOTS MOTION FOR PARTIAL SUMMARY SUITE 2000
JUDGMENT - 5 SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 The court should continue the September 1 hearing date for WSDOTs Motion and re-
2 notice the hearing for November 2017 for several reasons.
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WSDOTs Motion states simply that it concerns Seattle Tunnel Partners counterclaim
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against WSDOT based on a theory of Type 1 Differing Site Conditions. While WSDOTs
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motion does not provide any details as to the basis of its motion, it can be anticipated that
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7 WSDOT will contend that WSDOTs Contract Documents did not reasonably indicate a
8 subsurface condition materially different from the 119 foot, 8 diameter steel well casing that
9 was encountered on December 4, 2013, and/or that STP did not reasonably rely on the
10 Contract Documents when submitting its bid on the Project. Any such contentions asserted by
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WSDOT, which STP disagrees with, necessarily raises disputed questions of material fact that
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require a complete factual record before a motion for summary judgment should be heard.
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The stated purpose of the GBR prepared by S&W and WSP on behalf WSDOT was
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15 Setting the baseline subsurface site conditions expected to be encountered in the performance of
16 the Work. See Parnass Decl., Ex. G. In the tunneling industry, a GBR, when setting the
17 baseline subsurface conditions, should identify the presence of subsurface steel obstructions, like
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a 119 foot, 8 diameter steel well casing in the tunnel alignment. It is undisputed that WSDOTs
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GBR did not do so. STP testified in a 30(b)(6) deposition in this case noticed by WSDOT that it
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interpreted WSDOTs Contract Documents (including the GBR, GEDR and certain Technical
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Requirements) to indicate that there were no steel well obstructions in the tunnel alignment and
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23 that STP relied on that interpretation when preparing its proposal on the Project. Id., Ex. H.
24 Any counter-argument from WSDOT that STP did not reasonably interpret or reasonably rely
25 upon WSDOTs Contract Documents raises material issues of fact.
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MOTION TO CONTINUE HEARING DATE FOR PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
WSDOTS MOTION FOR PARTIAL SUMMARY SUITE 2000
JUDGMENT - 6 SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 STP has not had the opportunity to complete the relevant deposition discovery related to
2 WSDOTs Motion and will not reasonably be able to do so prior to filing its opposition to
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WSDOTs Motion. STP, prior to WSDOT filing its Motion, noticed depositions for August and
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September 2017 for 18 WSDOT, S&W, and WSP witnesses who possess potentially relevant
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information related to STPs Type 1 DSC Claim. Indeed, all of the individuals noticed were
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7 involved in the preparation of the relevant contract documents (GBR and GEDR) and/or have
8 been identified as individuals with knowledge relating to the installation, testing and
9 documentation of the 119 foot steel pipe in the tunnel alignment. These noticed depositions
10 (along with the written discovery sought from WSDOT, S&W and WSP that has not been
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produced) would provide critical evidence from material witnesses relevant to factual questions
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of reasonableness raised in WSDOTs Motion. Such evidence would include, among other
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things, (i) the background and purpose of the GBR, (ii) the use of the GBR in the tunneling
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15 industry, (iii) the industry practice and procedures for identifying subsurface steel well casings in
16 the tunnel alignment in the GBR, (iv) the understanding of that industry practice and procedure
17 by the parties responsible for drafting the GBR in this case (S&W and WSP), (v) STPs and
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WSPs previous experience in the use of GBRs in tunneling industry and the disclosure of man-
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made steel obstructions, (vi) the industry practice for addressing identified and unidentified
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subsurface obstructions when preparing a tunneling contractors bid estimate, and (vii) how other
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bidders on the Project interpreted and relied upon WSDOTs Contract Documents. These
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23 depositions must be completed before STP can brief and argue its opposition to WSDOTs
24 Motion. Otherwise, the factual record will be incomplete and STP will be prejudiced in its
25 efforts to oppose WSDOTs Motion.
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MOTION TO CONTINUE HEARING DATE FOR PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
WSDOTS MOTION FOR PARTIAL SUMMARY SUITE 2000
JUDGMENT - 7 SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 In its July 6, 2017 letter to Special Master Armstrong, WSDOT identified two additional
2 S&W employees that need to be deposed who were in involved in the GBR, other geotechnical
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requirements, the geotechnical investigation conducted on behalf of WSDOT and the location of
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TW-2 (WSDOTs 119 foot steel well casing). WSDOT also identified for deposition three
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additional WSP employees, and several STP employees who were involved in STPs proposal
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7 for the Project. All of these depositions, in addition to the depositions that STP intends to take,
8 would produce evidence related to disputed issues of material fact concerning WSDOTs motion,
9 including, among others, the risks identified (and not identified) in the GBR and the GEDR, the
10 proper use of a GBR in the tunneling industry, S&Ws installation and testing of TW-2, and
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STPs review and reliance on the GBR and the GEDR in preparing its bid for the Project. The
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deponents identified by WSDOT compel the conclusion that WSDOTs motion for summary
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judgment is premature and should be re-noted for when discovery of these relevant evidentiary
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16 Documents produced to date by WSDOT and S&W indicate that these parties clearly
17 understood the Contract Documents, particularly the GBR, should identify the presence of
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subsurface steel well casings in the tunnel alignment. These documents counter any WSDOT
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argument that STP did not reasonably interpret and/or reasonably rely upon WSDOTs Contract
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Documents. WSDOT, SW, and WSP are all still in the process of producing documents to STP.
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WSDOT has indicted that its document production will not be completed until later this month or
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23 August; S&W had produced little by way of emails and is taking the position that STP must
24 review 100 boxes of hard copy documents in S&Ws possession; WSP has produced no
25 documents to date and is refusing to produce certain relevant documents requested by STP.
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WSDOTs Motion should not proceed until all of the parties have completed production of their
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MOTION TO CONTINUE HEARING DATE FOR PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
WSDOTS MOTION FOR PARTIAL SUMMARY SUITE 2000
JUDGMENT - 8 SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 documents with sufficient time for those documents to be reviewed and incorporated into
2 depositions and the briefing on WSDOTs Motion as necessary.
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Continuing the hearing date WSDOTs Motion by two months will not delay the
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currently scheduled trial date of June 25, 2018 and will not prejudice WSDOT, or any other
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parties in this matter. Conversely, hearing WSDOTs Motion on September 1 will substantially
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7 prejudice STPs ability to fully and properly respond since STPs discovery efforts would be cut-
8 off before STP has completed all necessary discovery from WSDOT and its consultants S&W
9 and PB.
10 VI. CONCLUSION
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For all of these reasons, STP requests that WSDOTs Motion be re-noticed for a date in
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early November 2017.
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MOTION TO CONTINUE HEARING DATE FOR PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
WSDOTS MOTION FOR PARTIAL SUMMARY SUITE 2000
JUDGMENT - 9 SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 jmalloy@dfllegal.com
PNC Center, Third Floor
2 20 Stanwix Street
Pittsburgh, PA 15222
3 (206) 419-1800
(Admitted pro hac vice)
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Attorneys for Defendant
5 Seattle Tunnel Partners
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MOTION TO CONTINUE HEARING DATE FOR PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
WSDOTS MOTION FOR PARTIAL SUMMARY SUITE 2000
JUDGMENT - 10 SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 CERTIFICATE OF SERVICE
2 I hereby certify that on this day I caused a copy of the foregoing to be served upon the
following counsel of record:
3
Daniel W. Galvin ( ) By U. S. Mail
4 Assistant Attorney General (X) By E-mail service agreement
Transportation and Public Construction ( ) By Facsimile
5 Division ( ) By Messenger
7141 Cleanwater Drive SW
6 PO Box 40113
Olympia WA 98504-0113
7 360-753-1626
danielg2@atg.wa.gov
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Karl F. Oles ( ) By U. S. Mail
9 David R. Goodnight (X) By E-mail service agreement
Bart W. Reed ( ) By Facsimile
10 Rachel L. Dunnington ( ) By Messenger
Christopher N. Weiss
11 Stoel Rives LLP
600 University Street, Suite 3600
12 Seattle WA 98101
206-624-0900 (phone)
13 karl.oles@stoel.com
david.goodnight@stoel.com
14 bart.reed@stoel.com
rachel.dunnington@stoel.com
15 chris.weiss@stoel.com
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I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true
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06/28/2017
From: Cindy Bourne
To: Washington State Tort Claim E-Filing
Cc: John Parnass
Subject: Tort Claim Form attached
Date: Wednesday, June 28, 2017 3:46:00 PM
Attachments: Tort Claim Form.pdf
Attached please find Seattle Tunnel Partners Standard Tort Claim Form. Original claim form will be
mailed and faxed. Thank you.
Cindy Bourne
Legal Assistant
John Parnass | Zak Tomlinson, | Jamie Lisagor | Sarah Washburn
This electronic message contains information from the law firm of Pacifica Law Group LLP. The contents may be
privileged and confidential and are intended for the use of the intended addressee(s) only. If you are not an
intended addressee, note that any disclosure, copying, distribution, or use of the contents of this message is
prohibited. If you have received this e-mail in error, please contact me at cindy.bourne@pacificalawgroup.com.