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R-79-11 Res Approving Common Interest AgreementResolution No. R-71 (1 A Resolution Approving Common Interest Agreement WHEREAS, a law suit has been filed in the Circuit Court of Cook County, Illinois, entitled The Regional Transportation Authority, et al., v. City of Kankakee, et al., Case No. 2011 CH 29744 ( "RTA Litigation "); WHEREAS, the Village President and Board of Trustees of the Village of Lemont find that it is in the best interest of the Village to enter into a Common Interest Agreement with The Regional Transportation Authority and other units of local government relating to the RTA Litigation. BE IT RESOLVED by the Village President and Board of Trustees of the Village of Lemont as follows: SECTION ONE: The Common Interest Agreement, attached as Exhibit A and incorporated in its entirety, is hereby approved. SECTION TWO: The Village Attorney is authorized to execute the Common Interest Agreement, to make minor changes to the document prior to execution which do not materially alter the Village's obligations, and to take any other steps necessary to carry out this resolution. PASSED AND APPROVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT, COUNTIES OF COOK, WILL AND DUPAGE, ILLINOIS on this day of QC, 00r , 2011. PRESIDENT AND VILLAGE BOARD MEMBERS: AYES: NAYS: ABSENT: ABSTAIN Debby Blatzer ✓ Paul Chialdikas if Clifford Miklos ✓ Ron Stapleton ✓ Rick Sniegowski Jeanette Virgilio U Approving Common Interest Agreement re RTA Litigation (00107472).DOC 1 ATTEST: ARLENE M. SMOLLEN Village Clerk AN K. REAVES President Approving Common Interest Agreement re RTA Litigation (00107472).DOC 2 Privileged and Confidential Common Interest Agreement This Common Interest Agreement ( "Agreement ") by and between The Regional Transportation Authority, the Village of Tinley Park, the Village of Forest View, the Village of Lemont, and the Village of Stickney (collectively referred to as the "Parties" or the "Parties to this Agreement ") with respect to the lawsuit styled as The Regional Transportation Authority, et al, v. City of Kankakee, et al.; Civil Action File No. 11 -CH- 29744; filed in the Circuit Court of Cook County, Illinois ( "the Litigation "), and any other proceedings of any nature that may relate to the subject matter of the Litigation, whether brought against the Parties or against any person or entity related to or affiliated with them. The Litigation presents certain legal and factual issues of common interest to the Parties to this Agreement, thus requiring joint efforts in exchanging information and confidences, including information and confidences that are subject to the attorney - client privilege, work product, or other privileges or protections. The Parties and their counsel agree that communication and disclosures between them on matters of common concern are essential to the effective representation of the Parties in the Lawsuit. The purpose of this Agreement is to maintain the protections afforded to communications, documents and other materials by the attorney - client privilege, the work product doctrine, the self - critical examination privilege, the trade secret doctrine, the common interest privilege, or any other privilege or protection (collectively, "Confidential Communications ") such that the disclosure among the Parties to this Agreement and their counsel of Confidential Communication does not waive or otherwise alter any such privilege or protection. 1. Oral. Confidential Communications. The undersigned counsel and their respective Parties agree that there is a mutuality of interest in the Litigation or any related proceedings. In order to avoid any suggestion that privileges for Confidential Communications have been waived, it is agreed that past and future oral communications by and between (a) the undersigned counsel; (b) other counsel for the Parties, including in -house counsel; (c) agents or designees of counsel acting at counsel's direction or under counsel's supervision, (d) representatives of the Parties acting at counsel's direction or under counsel's supervision; and (e) joint interviews of prospective witnesses in connection with the Lawsuit, or any related proceedings, are Confidential Communications and are protected from discovery and from disclosure to any third party by the Parties' respective attorney - client privileges and attorney's work product protections, pursuant to the "common interest" doctrine. 2. Written Confidential Communications. It is further agreed that all information, documents, materials, technical reports and analyses, client and witness statements, interviews, memoranda of law, debriefing memoranda, factual summaries, transcript digests, document indices and such other material and information, recorded in whatever media, that is otherwise protected from discovery and disclosure to third parties may be exchanged between the Parties to this Agreement and their counsel. Such materials and information exchanged between the undersigned firms or among counsel for the Parties in connection with the Lawsuit or any related proceedings shall constitute Confidential Communications, and will remain protected from discovery and disclosure to any third party by the Parties' respective attorney - client privileges and work product protections, pursuant to the "common interest doctrine." 3. Nondisclosure. Confidential Communications referred to in paragraphs 1 and 2 of this Agreement shall not be disclosed to third parties without the prior written consent of the counsel who made the information available in the first instance, or by an order of court. Moreover, none of the Parties may disclose the existence of this Agreement or its contents to anyone not a party to this Agreement without prior written approval of all Parties, unless required to do so by court order. This nondisclosure provision does not prevent or prohibit any Party or its counsel from asserting the common interest doctrine in support of any objection in any hearing, discovery response, proceeding, or deposition. In the event that a Party is served with a subpoena or other form of compulsory process seeking disclosure of information obtained pursuant to this Agreement, that Party shall promptly notify the other Parties so as to afford them the opportunity to seek appropriate protection from disclosure of such information. 4. No Agency Relationship. This Agreement shall not create any agency relationship among the Parties. Accordingly, no Party shall have the authority to waive any applicable privilege on behalf of any other Party, nor shall the conduct of any Party deemed to constitute a waiver of a privilege be imputed to any other Party. 5. Withdrawal. Any Party to this Agreement is free to withdraw upon fourteen (14) days prior written notice to all other signatories, in which case this Agreement shall no longer apply to the withdrawing party but shall continue to protect all Confidential Communications disclosed to the withdrawing party and its counsel prior to their withdrawal. A withdrawing Party and its Counsel shall immediately return all copies of all written Confidential Communications, and all other common interest materials and copies thereof received from any other Party to this Agreement. A withdrawing Party and its counsel shall continue to protect all Confidential Communications and other information disclosed to them or otherwise learned or obtained by them prior to withdrawal, and shall be bound by this Agreement in all other respects. 6. Disputes Between Parties. Nothing in this Agreement shall affect any claims or defenses that may be asserted by one Party to this Agreement against the other. 7. Admissibility of Confidential Communications and Derivative Information. No oral or written Confidential Communication not otherwise obtainable or discoverable except by virtue of this Agreement shall be admissible in evidence in any proceeding arising from a claim made by one party to this Agreement against another Party to this Agreement. Likewise, no evidence obtained by any Party that would not have been obtained except as a result of disclosure of Confidential Communications under this Agreement shall be admissible in any proceeding arising from a claim made by one Party to this Agreement against another Party. The Party disclosing such Confidential Communications in the first instance shall bear the burden of proving that the proffered evidence would not have been obtained except as a result of the disclosure of Confidential Communications. 8. No Duty of Production. This Agreement does not create a duty or obligation on the part of the undersigned to provide, produce or otherwise disclose or exchange any documents, Confidential Communications, or other information with any other counsel or Party. 9. No Limitation of Discovery /Cross - Examination. Nothing in this Agreement shall prevent or limit the efforts of any Party to obtain information from the other Parties through formal discovery. Nothing in the Agreement shall limit the use or disclosure of information obtained independently of the common interest efforts described herein, or of Confidential Communications obtainable or that would be discoverable notwithstanding this Agreement. Each Party further understands and agrees that if the Party (or its representative) testifies at trial or any related proceeding, counsel for the other Parties may cross - examine the Party, and neither the existence of this Agreement, nor the fact that counsel has obtained information pursuant to this Agreement, shall be grounds to prevent or disqualify counsel from conducting such cross - examination. 10. No Conflict of Interest. Nothing contained in this Agreement, including the production of information or materials contemplated by this Agreement, shall be the basis of a claim of conflict of interest asserted by any of the Parties to this Agreement against counsel for any other Party so long as such counsel is acting in the course of his /her representation of his /her client Party. 11. The Parties agree and acknowledge that the decision to enter into this Agreement and to participate in the activities contemplated by this Agreement is based upon the exercise of the independent judgment of each of the Parties after consultation with their respective counsel. 12. The Parties understand and agree that their interests may be adverse, that each Party's attorney must represent his or her own client and no other, and that this Agreement does not create an attorney - client or fiduciary relationship between any lawyer and any client other than the client by whom the lawyer and his or her firm have signed below. The Parties recognize that circumstances may arise in which an attorney or law firm, while participating in this Agreement, may become adverse to another Party to this Agreement. Accordingly, after receiving advice of its own counsel, each Party consents to such adverse representations. The Parties agree that the participation of any of the undersigned counsel in this Agreement will not be used as a basis for seeking to disqualify any counsel from representing his or her client in the Lawsuit or any related proceedings. 13. Except as otherwise provided herein, all Confidential Communications shall be used solely in connection with the Litigation. 14. If any Party to this Agreement for any reason is no longer a party to the Lawsuit, such party shall share its Confidential Communications with the other signatories of the Agreement and such communications shall be treated and maintained as privileged and confidential in accordance with the terms of this Agreement as set forth above. 15. This Agreement and the covenants herein contained are made solely for the benefits of the Parties, and their respective successors, assigns, affiliates and representatives and no other person shall be entitled to any rights hereunder. This Agreement shall be binding upon the successors and assigns of each Party and its counsel. No transaction resulting in a succession or assignment shall release any Party or counsel from their respective duties and obligations under this Agreement. 16. Nothing herein shall waive or limit the right of any Party to assert any present or future claim for relief or cause of action against any other Party. 17. Subject to the written Agreement of all Parties, additional individuals or entities may be permitted to join this Agreement. 18. This Agreement may be executed in multiple counterparts, each of which shall constitute an integrated and enforceable whole. 19. Any modification of this Agreement other than in writing signed by all Parties shall be void. 20. This Agreement constitutes the entire Agreement of the Parties concerning the exchange of information among them in connection with their joint defense of the Lawsuit. 21. This Agreement shall be governed, construed and enforced under the substantive laws of the State of Illinois, regardless of the substantive law that might otherwise govern under any applicable principles of conflicts or choice of laws. By execution of this Agreement, each of the undersigned certifies that the contents of this Joint Defense Agreement have been explained to their respective Parties, and that each agrees to be bound and abide by the understandings reflected herein. By: By: Counsel for Regional Transportation Authority Counsel for Village of Forest View By: By: Counsel for Village of Tinley Park Counsel for Village of Lemont By: Counsel for Village of Stickney