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E-FILED

THURSTON COUNTY, WA
SUPERIOR COURT
July 12, 2017
Linda Myhre Enlow
Thurston County Clerk

1 EXPEDITE (if filing within 5 court days of hearing)


No hearing is set.
Hearing is set:
2 Date: July 14, 2017
Time: 9:00 a.m.
3 Judge/Calendar: Carol Murphy - Civil The Honorable Carol Murphy
4

6
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

14 SEATTLE TUNNEL PARTNERS, a


Washington joint venture,
15
Third-Party Plaintiff,
16
v.
17
HITACHI ZOSEN U.S.A., LTD, a Delaware
18 corporation; HITACHI ZOSEN
CORPORATION, a foreign corporation; and
19 HNTB CORPORATION, a Delaware
corporation,
20
Third-Party Defendants.
21

22

23

24

25

26

DECLARATION OF DAVID GOODNIGHT 1


STOEL RIVES LLP
ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
93251045.1 0081287-00001 Telephone (206) 624-0900
1
HITACHI ZOSEN U.S.A. LTD.,
2
Fourth-Party Plaintiff,
3
v.
4
WASHINGTON STATE DEPARTMENT OF
5 TRANSPORTATION, FIDELITY AND
DEPOSIT COMPANY OF MARYLAND;
6 ZURICH AMERICAN INSURANCE
COMPANY; LIBERTY MUTUAL
7 INSURANCE COMPANY; TRAVELERS
8 CASUALTY AND SURETY COMPANY OF
AMERICA; FEDERAL INSURANCE
9 COMPANY; AND SAFECO INSURANCE
COMPANY OF AMERICA,
10
Fourth-Party Defendants.
11

12
HITACHI ZOSEN U.S.A. LTD.,
13
Plaintiff,
14
v.
15
WASHINGTON STATE DEPARTMENT OF
16 TRANSPORTATION and SHANNON &
WILSON, INC.,
17
Defendants.
18
SEATTLE TUNNEL PARTNERS, a joint
19 venture,
20 Plaintiff,
21
v.
22
SHANNON & WILSON, INC., a Washington
23 corporation; and WSP USA, INC., formerly
known as PARSONS BRINCKERHOFF,
24 INC., a New York corporation,
25
Defendants.
26

DECLARATION OF DAVID GOODNIGHT 2


STOEL RIVES LLP
ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
93251045.1 0081287-00001 Telephone (206) 624-0900
1 I, David R. Goodnight, state and declare as follows:
2 1. I am a partner with the firm of Stoel Rives LLP and represent the Washington
3 State Department of Transportation (WSDOT) in Washington State Dept. of Transportation v.
4 Seattle Tunnel Partners, No. 16-2-00980-34 (the Thurston County Action) and Seattle Tunnel
5 Partners v. Great Lakes Reinsurance (UK) PLC, et al., No. 15-2-15009-0 in King County
6 Superior Court (the King County Action). I have personal knowledge of and am competent to
7 testify to the matters stated herein.
8 2. A true and correct copy of the Amended Case Schedule Order is attached hereto
9 as Exhibit A.
10 3. The parties have identified over 150 potential fact witness deponents.
11 4. The parties have agreed, with the Special Masters assistance, that the default
12 length of a deposition is two days for fact witnesses and four days for Japanese and other foreign
13 language witnesses requiring a translator.
14 5. Some depositions will likely be taken outside of the United States.
15 6. The parties have recognized that depositions of the more critical deponents could
16 take up to five days given the enormous amount of information they possess and because some
17 important witnesses require a translator.
18 7. To date, fifty-four depositions have been noted in both this action and the King
19 County Action.
20 8. Twenty-eight of those noted depositions have not been confirmed, fourteen of the
21 noted depositions have had to be rescheduled, and only eight of the noted depositions have been
22 taken.
23 9. Many of the rescheduled depositions do not yet have a new date. One of the eight
24 taken depositions is not yet complete and will be continued at a later date that has not been set.
25

26

DECLARATION OF DAVID GOODNIGHT 3


STOEL RIVES LLP
ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
93251045.1 0081287-00001 Telephone (206) 624-0900
1 10. In June, the parties took only three depositions. Even if the parties triple the
2 current rate of depositions (and take nine depositions per month), it will take approximately 15
3 months for the parties to finish fact depositions.
4 11. Hitachi Zosen U.S.A., Ltd., Seattle Tunnel Partners (STP), and WSDOT are all
5 parties to the King County Action and are represented by the same counsel in both Actions.
6 12. A true and correct copy of the Order Amending Case Schedule in the King
7 County Action is attached hereto as Exhibit B.
8 13. WSDOT anticipates that it will produce reports for eight experts.
9 14. A true and correct copy of the Stipulated Motion for Entry of Case Schedule is
10 attached hereto as Exhibit C.
11 15. A true and correct copy of STPs Motion to Continue Hearing Date for WSDOTs
12 Motion for Partial Summary Judgment is attached hereto as Exhibit D.
13 16. A true and correct copy of the Standard Tort Claim Form that WSDOT received
14 from STP on June 28, 2017 is attached hereto as Exhibit E.
15 SIGNED at Seattle, Washington this 12th day of July, 2017.
16

17
David R. Goodnight
18

19

20

21

22

23

24

25

26

DECLARATION OF DAVID GOODNIGHT 4


STOEL RIVES LLP
ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
93251045.1 0081287-00001 Telephone (206) 624-0900
DECLARATION OF SERVICE
1

2 Cindy Castro, hereby declares as follows:

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:
6
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
12
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

18 Attorneys for Third Party Defendants and


Fourth Party Plaintiff Hitachi Zosen U.S.A.,
19 Ltd. and Hitachi Zosen Corporation hand delivery via legal messenger
overnight delivery
20 Richard O. Prentke, WSBA #5786 mailing with postage prepaid
Andrew L. Greene, WSBA #35548 e-service per agreement of the parties:
21 Brendan J. Peters, WSBA #34490 rprentke@perkinscoie.com
V.L. Woolston, WSBA #9453 vwoolston@perkinscoie.com
22 Mica D. Simpson, WSBA #46596 agreene@perkinscoie.com
Nicholas P. Gellert, WSBA #18041 bpeters@perkinscoie.com
23 Jonathan P. Goddard, WSBA #49872 msimpson@perkinscoie.com
Todd W. Rosencrans, WSBA #26551 ngellert@perkinscoie.com
24 PERKINS COIE LLP jgoddard@perkinscoie.com
1201 Third Avenue, Suite 4900 trosencrans@perkinscoie.com
25 Seattle, WA 98101
Phone: 206 359-8000
26

DECLARATION OF DAVID GOODNIGHT 5


STOEL RIVES LLP
ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
93251045.1 0081287-00001 Telephone (206) 624-0900

1 Attorneys for Third Party Defendants HNTB
Corporation
2 hand delivery via legal messenger
Bradley G. Taylor, WSBA #18611 overnight delivery
3 John V. Leary, WSBA #36345 mailing with postage prepaid
Petra N. Ambrose, WSBA #48924 e-service per agreement of the parties:
4 GORDON & REES, LLP btaylor@gordonrees.com
701 Fifth Avenue, Suite 2100 jleary@gordonrees.com
5 Seattle, WA 98104 pambrose@gordonrees.com
Phone: 206 689-5100
6
hand delivery via legal messenger
7 Stephen B. Hart* overnight delivery
Christine E. Drage* mailing with postage prepaid
8 Jenifer J. Brannen* e-service per agreement of the parties:
Mark E. Petersen* bhart@weildrage.com
9 Sheila K. McDonald* cdrage@weildrage.com
Catherine L. Rigney* jbrannen@weildrage.com
10 WEIL & DRAGE mpetersen@weidrage.com
23212 Mill Creek Drive smcdonald@weildrage.com
11 Laguna Hills, CA 92653 crigney@weildrage.com
Phone: 949 837-8200
12 (*Admitted Pro Hac Vice)
13 Attorneys for Defendant Shannon & Wilson

14 Terry Scanlan, WSBA #19498 hand delivery via legal messenger
Patricia A. Robert, WSBA #46716 overnight delivery
15 Rochelle Y. Nelson, WSBA #48175 mailing with postage prepaid
SKELLENGER BENDER e-service per agreement of the parties:
16 1301 Fifth Avenue, Suite 3401 tscanlan@skellengerbender.com
Seattle, WA 98101 aschuchman@skellengerbender.com
17 Phone: 206 623-6501 probert@skellengerbender.com
rnelson@skellengerbender.com
18

19 Attorneys for Fourth-Party Defendants, the


Sureties
20 hand delivery via legal messenger
Thomas K. Windus, WSBA #7779 overnight delivery
21 WATT, TIEDER, HOFFAR mailing with postage prepaid
& FITZGERALD, LLP e-service per agreement of the parties:
22 1215 Fourth Avenue, Suite 2210 twindus@watttieder.com
Seattle, WA 98161
23 Phone: 206 204-5800
24

25

26

DECLARATION OF DAVID GOODNIGHT 6


STOEL RIVES LLP
ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
93251045.1 0081287-00001 Telephone (206) 624-0900
Exhibit A
Exhibit B
Exhibit C
Exhibit D
1 EXPEDITE The Honorable Carol Murphy
No Hearing Set
2 Hearing is set:
Date: July 14, 2017
3
Time: 9:00 a.m.
4 Judge/Calendar: Carol Murphy

6
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
7 IN AND FOR THE COUNTY OF THURSTON

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
venture,
12
SEATTLE TUNNEL PARTNERS
Defendants.
13 MOTION TO CONTINUE HEARING
DATE FOR WSDOTS MOTION FOR
14 PARTIAL SUMMARY JUDGMENT
SEATTLE TUNNEL PARTNERS, a
Washington joint venture,
15
Third-Party Plaintiff,
16
v.
17
HITACHI ZOSEN U.S.A., LTD, a Delaware
18 corporation; HITACHI ZOSEN
CORPORATION, a foreign corporation; and
19 HNTB CORPORATION, a Delaware
corporation,
20
Third-Party Defendants.
21

22

23

24

25

26

27
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.

4 WASHINGTON STATE DEPARTMENT OF


TRANSPORTATION and SHANNON &
5 WILSON, INC.,
Fourth-Party Defendants.
6

7 HITACHI ZOSEN U.S.A. LTD.,


8 Fifth-Party Plaintiff,
9 v.
10 WASHINGTON STATE DEPARTMENT OF
11 TRANSPORTATION, FIDELITY AND
DEPOSIT COMPANY OF MARYLAND;
12 ZURICH AMERICAN INSURANCE
COMPANY; LIBERTY MUTUAL
13 INSURANCE COMPANY; TRAVELERS
CASUALTY AND SURETY COMPANY OF
14 AMERICA; FEDERAL INSURANCE
15 COMPANY; AND SAFECO INSURANCE
COMPANY OF AMERICA,
16 Fifth-Party Defendants.
17
SEATTLE TUNNEL PARTNERS, a joint
18 venture

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.
25

26

27
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
3
opportunity to (i) take the previously-noticed depositions of specific fact witnesses of WSDOT
4
and of defendants Shannon & Wilson, Inc. (S&W) and Parsons Brinckerhoff (WSP) (the
5
parties who, along with WSDOT, drafted the key Contract Documents at issue in STPs Type 1
6

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
11
ability to oppose WSDOTs motion for partial summary judgment relating to STPs Type 1
12
differing site condition claim.
13
On December 4, 2013, STPs Tunnel Boring Machine (TBM) struck a previously
14

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
18
casing was not identified in the relevant Contract Documents drafted by S&W and WSP on
19
behalf of WSDOT, namely, the Geotechnical Baseline Report (GBR) and the Geotechnical and
20
Environmental Data Report (GEDR). WSDOT denied STPs Type 1 DSC Claim and the
21
parties submitted their dispute to a Dispute Review Board established under the Design-Build
22

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
26

27
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.
3
WSDOT filed its Motion for Partial Summary Judgment (Motion) on June 23, 2017
4
concerning STPs Type 1 DSC Claim and noticed its Motion for hearing on September 1, 2017,
5
before STPs noticed and relevant depositions can be completed and before relevant document
6

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
11
WSDOTs Contract Documents, which failed to identify the presence of WSDOTs 119 foot
12
steel well casing in the tunnel alignment. WSDOTs Motion was scheduled without consulting
13
with any of the parties regarding timing and, more importantly, is premature and prejudicial to
14

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
18
discovery necessary for the proper resolution of the Motion and prevent prejudice to STP.
19
I. RELIEF REQUESTED
20
STP requests that the Court continue the September 1, 2017 hearing date for WSDOTs
21
Motion and re-note the hearing for November 2017 allowing the parties a reasonable opportunity
22

23 to complete the discovery necessary for STP to oppose WSDOTs Motion.

24 II. STATEMENT OF FACTS


25 On December 4, 2013, STPs TBM struck a previously undisclosed 119 foot steel pipe
26
that WSDOT abandoned in the tunnel alignment and failed to disclose to STP. See Declaration
27
MOTION TO CONTINUE HEARING DATE FOR PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
WSDOTS MOTION FOR PARTIAL SUMMARY SUITE 2000
JUDGMENT - 2 SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 of John Parnass in Support of Motion to Continue Hearing Date (Parnass Decl.), 2. As
2 detailed in STPs DSC Claim, the 119 foot steel pipe is a Type 1 differing site condition under
3
the Design- Build Contract between WSDOT and STP. Id., 3.
4
WSDOT has refused to accept STPs DSC Claim. Id., 4. Pursuant to the terms of the
5
Contract, the parties submitted STPs DSC Claim to the DRB. Id., 5. In addition to the
6

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,
11
the DRB concluded that the TBMs encounter with the 119 foot steel pipe was a Type 1 differing
12
site condition. Id., 7, Ex. A.
13
Rather than accept the DRBs Recommendation on STPs DSC Claim, WSDOT filed this
14

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
18
substantially complete with its production of documents until July or August. Id., 10.
19
S&W installed the 119 foot steel well casing on behalf of WSDOT in September 2002,
20
and conducted tests on the well up until March 2010. Id., 11. S&W and WSP drafted the key
21
Contract Documents at the heart of STPs Type 1 DSC Claim (the GBR and the GEDR) on
22

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
26
produced no documents to date, has not provided a timetable for when its document productions
27
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
3
custodian emails from a WSP former employee who, while using a WSDOT email address,
4
participated in the drafting of the GBR. Id., 14.
5
In May 2017, STP noticed depositions of 18 WSDOT, S&W, and WSP witnesses whom
6

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.
11
On June 23, 2017, without consulting any of the other parties, WSDOT filed the Motion
12
and noticed it for hearing on September 1, 2017. Id., 16.1 STP sent a letter to WSDOT
13
advising that the September 1 hearing date was premature for several reasons and should be re-
14

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
18
WSDOT does not think more time should be required to respond to WSDOTs Motion. Id., 18,
19
Ex. C.
20
On July 6, 2017, S&W and WSP filed a joint motion to continue the June 25, 2018 trial
21
date in this matter (the Joint Motion to Continue). Id., 19, Ex. D. WSDOT has stated in a
22

23 July 6, 2017 letter to Special Master Judge Armstrong that it intends to join the Joint Motion to

24 1
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.

27
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
3
weeks. Id., Ex. D. S&W and WSP further stated that Quite simply, the current case schedule
4
does not grant S&W and WSP an appropriate opportunity to understand the produced discovery
5
in order to prepare for (and take) the dozens of depositions necessary so that they can represent
6

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.

9 III. STATEMENT OF THE ISSUE


10 Should the Court continue the September 1, 2017 hearing date for WSDOTs Motion and
11
re-notice the hearing for November 2017 to allow the parties a reasonable opportunity to
12
complete all discovery necessary for the proper resolution of WSDOTs Motion?
13
IV. EVIDENCE RELIED UPON
14

15 This Motion is based on the Declaration of John Parnass and all documents and evidence

16 cited therein and attached thereto.

17 V. ARGUMENT
18
Civil Rule 56(f) allows the court to order a continuance to allow the non-moving party to
19
conduct further relevant discovery. See Tellevik v. Real Prop., 120 Wn. 2d 68, 91, 838 P.2d 111,
20
123 (1992) (CR 56(f) continuance appropriate where relevant discovery not yet completed); see
21
also Crossfit, Inc. v. Nat'l Strength & Conditioning Ass'n, No. 14-CV-1191 JLS (KSC), 2015
22

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
26
make justice its primary consideration in ruling on a motion for continuance.).
27
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.
3
WSDOTs Motion states simply that it concerns Seattle Tunnel Partners counterclaim
4
against WSDOT based on a theory of Type 1 Differing Site Conditions. While WSDOTs
5
motion does not provide any details as to the basis of its motion, it can be anticipated that
6

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
11
WSDOT, which STP disagrees with, necessarily raises disputed questions of material fact that
12
require a complete factual record before a motion for summary judgment should be heard.
13
The stated purpose of the GBR prepared by S&W and WSP on behalf WSDOT was
14

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
18
a 119 foot, 8 diameter steel well casing in the tunnel alignment. It is undisputed that WSDOTs
19
GBR did not do so. STP testified in a 30(b)(6) deposition in this case noticed by WSDOT that it
20
interpreted WSDOTs Contract Documents (including the GBR, GEDR and certain Technical
21
Requirements) to indicate that there were no steel well obstructions in the tunnel alignment and
22

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.
26

27
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
3
WSDOTs Motion. STP, prior to WSDOT filing its Motion, noticed depositions for August and
4
September 2017 for 18 WSDOT, S&W, and WSP witnesses who possess potentially relevant
5
information related to STPs Type 1 DSC Claim. Indeed, all of the individuals noticed were
6

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
11
produced) would provide critical evidence from material witnesses relevant to factual questions
12
of reasonableness raised in WSDOTs Motion. Such evidence would include, among other
13
things, (i) the background and purpose of the GBR, (ii) the use of the GBR in the tunneling
14

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
18
WSPs previous experience in the use of GBRs in tunneling industry and the disclosure of man-
19
made steel obstructions, (vi) the industry practice for addressing identified and unidentified
20
subsurface obstructions when preparing a tunneling contractors bid estimate, and (vii) how other
21
bidders on the Project interpreted and relied upon WSDOTs Contract Documents. These
22

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.
26

27
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
3
requirements, the geotechnical investigation conducted on behalf of WSDOT and the location of
4
TW-2 (WSDOTs 119 foot steel well casing). WSDOT also identified for deposition three
5
additional WSP employees, and several STP employees who were involved in STPs proposal
6

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
11
STPs review and reliance on the GBR and the GEDR in preparing its bid for the Project. The
12
deponents identified by WSDOT compel the conclusion that WSDOTs motion for summary
13
judgment is premature and should be re-noted for when discovery of these relevant evidentiary
14

15 issues can be conducted.

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
18
subsurface steel well casings in the tunnel alignment. These documents counter any WSDOT
19
argument that STP did not reasonably interpret and/or reasonably rely upon WSDOTs Contract
20
Documents. WSDOT, SW, and WSP are all still in the process of producing documents to STP.
21
WSDOT has indicted that its document production will not be completed until later this month or
22

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.
26
WSDOTs Motion should not proceed until all of the parties have completed production of their
27
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.
3
Continuing the hearing date WSDOTs Motion by two months will not delay the
4
currently scheduled trial date of June 25, 2018 and will not prejudice WSDOT, or any other
5
parties in this matter. Conversely, hearing WSDOTs Motion on September 1 will substantially
6

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
11
For all of these reasons, STP requests that WSDOTs Motion be re-noticed for a date in
12
early November 2017.
13

14 DATED this 7th day of July, 2017.


15 PACIFICA LAW GROUP LLP
16 By s/ John Parnass
John Parnass, WSBA #18582
17 Zachary Tomlinson, WSBA # 35940
1191 Second Avenue, Suite 2000
18 Seattle, WA 98101
Telephone: (206) 245-1700
19 Fax: (206) 245-1750
john.parnass@pacificalawgroup.com
20 zak.tomlinson@pacificalawgroup.com
21 DINGESS, FOSTER, LUCIANA, DAVIDSON &
CHLEBOSKI LLP
22
John R. Dingess
23 jdingess@dfllegal.com
Brian R. Davidson
24 bdavidson@dfllegal.com
James S. Malloy
25

26

27
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)
4
Attorneys for Defendant
5 Seattle Tunnel Partners

10

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27
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
8
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

16 Attorneys for Plaintiff WSDOT

17

18

19

20

21

22

23

24

25

26

27 MOTION TO CONTINUE HEARING DATE FOR


WSDOTS MOTION FOR PARTIAL SUMMARY PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
JUDGMENT - 11 SUITE 2000
SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 Richard O. Prentke ( ) By U. S. Mail
Andrew L. Greene (X) By E-mail service agreement
2 Brendan J. Peters ( ) By Facsimile
V.L. Woolston ( ) By Messenger
3 Mica D. Simpson
Nicholas P. Gellert
4 Perkins Coie LLP
1201 Third Avenue, Suite 4900
5 Seattle, WA 98101-3099
206-359-8000
6 RPrentke@perkinscoie.com
AGreene@perkinscoie.com
7 BPeters@perkinscoie.com
VWoolston@perkinscoie.com
8 MSimpson@perkinscoie.com
NGellert@perkinscoie.com
9
Attorneys for Third-Party Defendant Hitachi
10 Zosen U.S.A., Ltd. and Hitachi Zosen
Corporation
11 Allen W. Estes ( ) By U. S. Mail
John V. Leary (X) By E-mail service agreement
12 Petra N. Ambrose ( ) By Facsimile
Gordon & Rees LLP ( ) By Messenger
13 701 Fifth Avenue, Suite 2100
Seattle, WA 98104
14 206-695-5100
aestes@gordonrees.com
15 jleary@gordonrees.com
pambrose@gordonrees.com
16
Christine E. Drage, pro hac vice ( ) By U. S. Mail
17 Jenifer J. Brannen, pro hac vice (X) By E-mail service agreement
Benjamin C. Bertch, pro hac vice ( ) By Facsimile
18 S. Brad Hart, pro hac vice ( ) By Messenger
Weil & Drage, APC
19 23212 Mill Creek Drive
Laguna Hills, CA 92653
20 949-837-8200
cdrage@weildrage.com
21 jbrannen@weildrage.com
bbertch@weildrage.com
22 bhart@weildrage.com

23 Attorneys for Third-Party Defendant


HNTB Corporation
24

25

26

27 MOTION TO CONTINUE HEARING DATE FOR


WSDOTS MOTION FOR PARTIAL SUMMARY PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
JUDGMENT - 12 SUITE 2000
SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1 Terence J. Scanlan, WSBA #19498
Patricia A. Robert, WSBA #46716
2 Rochelle Y. Nelson, WSBA #48175
Alan D. Schuchman, WSBA #459798
3 Rochelle Y. Nelson, WSBA #48175
Alan D. Schuchman, WSBA #45979
4 Skellenger Bender PS
1301 Fifth Avenue, Suite 3401
5 Seattle, W 98101
tscanlan@skellengerbender.com
6 probert@skellengerbender.com
rnelson@skellengerbender.com
7 aschuchman@skellengerbender.com
8 Attorneys for Fourth Party Defendant Shannon & Wilson
9 Terence J. Scanlan, WSBA #19498 ( ) By U. S. Mail
Patricia A. Robert, WSBA #46716 (X) By E-mail service agreement
10 Rochelle Y. Nelson, WSBA #48175 ( ) By Facsimile
Alan D. Schuchman, WSBA #459798 ( ) By Messenger
11 Rochelle Y. Nelson, WSBA #48175
Alan D. Schuchman, WSBA #45979
12 Skellenger Bender PS
1301 Fifth Avenue, Suite 3401
13 Seattle, W 98101
tscanlan@skellengerbender.com
14 probert@skellengerbender.com
rnelson@skellengerbender.com
15 aschuchman@skellengerbender.com
16 Attorneys for Fourth Party Defendant
Shannon & Wilson
17

18 Marisa Bavand ( ) By U. S. Mail


Groff Murphy PLLC (X) By E-mail service agreement
19 300 E. Pine Street ( ) By Facsimile
Seattle, WA 98122 ( ) By Messenger
20 206-628-9500
mbavand@groffmurphy.com
21

22 Attorneys for Parsons Brinckerhoff, Inc.

23
I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true
24 and correct.

25

26

27 MOTION TO CONTINUE HEARING DATE FOR


WSDOTS MOTION FOR PARTIAL SUMMARY PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
JUDGMENT - 13 SUITE 2000
SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
1
DATED this 7th day of July, 2017.
2
PACIFICA LAW GROUP LLP
3
By s/ John Parnass
4 John Parnass, WSBA # 18582
1191 Second Avenue, Suite 2100
5 Seattle, WA 98101
Telephone: (206) 245-1700
6 Fax: (206) 245-1750
john.parnass@pacificalawgroup.com
7

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27 MOTION TO CONTINUE HEARING DATE FOR


WSDOTS MOTION FOR PARTIAL SUMMARY PACIFICA LAW GROUP LLP
1191 SECOND AVENUE
JUDGMENT - 14 SUITE 2000
SEATTLE, WASHINGTON 98101-3404
TELEPHONE: (206) 245-1700
FACSIMILE: (206) 245-1750
Exhibit E
State of Washington
Department of Enterprise Services
Office of Risk Management
RECEIVED
06 28 2017

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

To: Department of Enterprise Services


Office of Risk Management
1500 Jefferson Street SE
MS 41466
Olympia, WA 98504-1466
Fax: 360-407-8022

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

T 206.245.1700 D 206.245.1746 F 206.245.1796


1191 Second Avenue, Suite 2000, Seattle, WA 98101-3404
cindy.bourne@pacificalawgroup.com

This electronic message contains information from the law firm of Pacifica Law Group LLP. The contents may be
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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.

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