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E-FILED

THURSTON COUNTY, WA
SUPERIOR COURT
1 EXPEDITE July 12, 2017
No hearing is set Linda Myhre Enlow
2 X Hearing is set: Thurston County Clerk
Date: July 14, 2017
3 Time: 9:00 am
Judge/Calendar: Carol Murphy
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6
The Honorable Carol Murphy
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SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY
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9 WASHINGTON STATE DEPARTMENT OF NO. 16-2-00980-34


TRANSPORTATION,
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Plaintiff, DECLARATION OF TERENCE J.
11 SCANLAN
v.
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SEATTLE TUNNEL PARTNERS, a joint
13 venture,

14 Defendants.

15 SEATTLE TUNNEL PARTNERS, a joint


venture,
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Third-Party Plaintiff,
17
v.
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HITACHI ZOSEN U.S.A., LTD. a Delaware
19 corporation; HITACHI ZOSEN
CORPORATION, a foreign corporation; and
20 HNTB CORPORATION, a Delaware
corporation,
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Third-Party Defendants.
22

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

24 Fourth-Party Plaintiff,

25 v.

26 FIDELITY AND DEPOSIT COMPANY OF


MARYLAND; ZURICH AMERICAN

DECLARATION OF TERENCE J. SCANLAN 1

1301 - Fifth Avenue, Suite 3401


Seattle, Washington 98101-2605
010351-01201 2034177.docx (206) 623-6501
1 INSURANCE COMPANY; LIBERTY
MUTUAL INSURANCE COMPANY;
2 TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA; FEDERAL
3 INSURANCE COMPANY; AND SAFECO
INSURANCE COMPANY OF AMERICA,
4
Fourth-Party
5 Defendants.
6
HITACHI ZOSEN U.S.A. LTD.,
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Plaintiff,
8
v.
9
WASHINGTON STATE DEPARTMENT OF
10 TRANSPORTATION and SHANNON &
WILSON, INC.,
11
Defendants.
12

13 SEATTLE TUNNEL PARTNERS, a joint


venture,
14
Plaintiff,
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v.
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SHANNON & WILSON, INC., a Washington
17 corporation; and WSP USA, INC., formerly
known as PARSONS BRINCKERHOFF,
18 INC., a New York corporation,

19 Defendants.

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I, Terence J. Scanlan, declare as follows:
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1. I am over the age of eighteen, competent to testify about the matters stated
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herein, and make this declaration based on my own personal knowledge.
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2. I am one of the attorneys of record for Shannon & Wilson, Inc. (Shannon
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& Wilson).
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3. STPs Motion to Continue, and Mr. Parnasss supporting Declaration
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submitted therewith, contains inaccurate statements regarding Shannon & Wilsons document

DECLARATION OF TERENCE J. SCANLAN 2

1301 - Fifth Avenue, Suite 3401


Seattle, Washington 98101-2605
010351-01201 2034177.docx (206) 623-6501
1 production and discovery efforts to date. See, e.g., STP Motion to Continue at 3, Parnass
2 Decl. at 13 (S&W has produced some relevant documents, a limited number of emails, and
3 has refused to produce 100 boxes of hard-copy documents in electronic format, as required
4 under the Discovery Protocol applicable to this case.).
5 4. Shannon & Wilson complied with Section 1(b) of this Courts Order on the
6 Parties Stipulated Discovery Protocol, dated January 13, 2017 (hereinafter Order). The
7 Order provides, in relevant part, that A producing party shall digitalize hardcopy records at
8 the producing partys expense unless such production would result in undue hardship or
9 unreasonable expense. (Emphasis added.)
10 5. On April 14, 2017, Shannon & Wilson served its electronic document
11 production to the Parties, which consisted of 145,021 documents, 2,699,824 pages, and was
12 approximately 273 gigabytes of data.
13 6. On May 22, 2017, Shannon & Wilson served on the Parties its Responses
14 to Seattle Tunnel Partners Interrogatories and Requests for Production of Documents. In
15 response to STPs requests for the production of documents, and in regard to Shannon &
16 Wilsons hard copy documents, Shannon & Wilsons responses state that Shannon & Wilson
17 has approximately 100 Bankers boxes of paper documents that can be made available for
18 inspection at a mutually convenient time.
19 7. The undersigned counsel has previously addressed STPs incorrect
20 assertion that Shannon & Wilson failed to abide by the Parties Stipulated Discovery Protocol
21 with regard to making its 100 Bankers boxes available for inspection by letter dated June 5,
22 2017 to counsel for STP, Brian Davidson. In the June 5 letter, the undersigned counsel
23 emphasized the undue hardship, time, and unreasonable expense that Shannon & Wilson
24 would incur by digitalizing its approximately 100 Bankers boxes of hard copy documents and
25 disagreed with STPs portrayal of the Parties Stipulated Discovery Protocol the same
26

DECLARATION OF TERENCE J. SCANLAN 3

1301 - Fifth Avenue, Suite 3401


Seattle, Washington 98101-2605
010351-01201 2034177.docx (206) 623-6501
1 inaccurate portrayal it now asserts in Mr. Parnasss Declaration and STPs Motion to
2 Continue. A true and correct copy of this letter is attached hereto as Exhibit A.
3 8. Counsel for the undersigned participated in a CR 37 meet and confer
4 teleconference with counsel for STP, Brian Davidson and Jim Malloy, on June 16, 2017,
5 wherein counsel further discussed the production of Shannon & Wilsons hard copy
6 documents. During this teleconference, counsel for Shannon & Wilson reiterated the relevant
7 positions stated in its letter of June 5 and repeated the fact that counsel will make these hard
8 copy documents available to STP (and the Parties) for inspection at any time requested.
9 9. The undersigned counsel reiterated this via email dated July 5, 2017,
10 wherein the undersigned stated, in part, the vast majority of the documents contained in the
11 bankers boxes are already produced to you electronically. We reiterate our standing offer
12 that well make them available for your inspection at a mutually agreeable time. The email
13 further stated, Likewise, as you know, we were not parties when the discovery protocol was
14 negotiated if wed been asked, we would have objected to this onerous burden at the time.
15 Since we werent, we object now. A true and correct copy of that email communication is
16 attached hereto as Exhibit B.
17 10. STP has never requested or opted to inspect these hard copy documents,
18 despite such documents being available for inspection since May 22, 2017.
19 11. The assertions within Mr. Parnasss Declaration and STPs Motion to
20 Continue regarding Shannon & Wilsons hard copy documents are disingenuous in light of
21 the facts herein. Shannon & Wilson has never refused to produce such hard copy
22 documents; to the contrary, Shannon & Wilson has produced them for inspection by the
23 parties in compliance with CR 34. In addition, STPs alleged need for these hard copy
24 documents is untimely and meritless given that WSDOT has not even filed its Motion for
25 Partial Summary Judgment, thereby providing STP the ability to assess whether such a need is
26 warranted.

DECLARATION OF TERENCE J. SCANLAN 4

1301 - Fifth Avenue, Suite 3401


Seattle, Washington 98101-2605
010351-01201 2034177.docx (206) 623-6501
1 I declare under penalty of perjury under the laws of the State of Washington that the
2 foregoing is true and correct.
3 Dated this 12th day of July, 2017.
4 s/ Terence J. Scanlan
Terence J. Scanlan
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DECLARATION OF TERENCE J. SCANLAN 5

1301 - Fifth Avenue, Suite 3401


Seattle, Washington 98101-2605
010351-01201 2034177.docx (206) 623-6501
1 CERTIFICATE OF SERVICE
2 THE UNDERSIGNED swears under penalty of perjury under the laws of the State of
Washington as follows:
3
1. I am over the age of 21, am an employee of Skellenger Bender, P.S., and not a
4 party to this action.
5 2. On July 12, 2017, I caused a true and correct copy of the foregoing document
to be served on counsel of record in the following manner:
6
Counsel for Plaintiff Seattle Tunnel Partners U.S. Mail
7 John Parnass Hand Delivery
Zachary Tomlinson Facsimile
8 Sarah Washburn Overnight
Pacifica Law Group E-mail
9 1191 Second Avenue, Ste. 2000
Seattle, WA 98101
10 Telephone: (206) 245-1700
Facsimile: (206) 245-1750
11 john.parnass@pacificalawgroup.com
zak.tomlinson@pacificalawgroup.com
12 sarah.washburn@pacificalawgroup.com
13 Pro Hac Vice for Plaintiff Seattle Tunnel Partners
John R. Dingess
14 Brian R. Davidson
Joseph L. Luciana, III
15 Samantha L. Brutout
Dingess, Foster, Luciana, Davidson & Chleboski, LLP
16 20 Stanwix Street, Third Floor
Pittsburgh, PA 15222
17 Telephone: (412) 926-1800
Facsimile: (412) 926-1801
18 jdingess@dfllegal.com
bdavidson@dfllegal.com
19 jluciana@dfllegal.com
sbrutout@dfllegal.com
20

21 Counsel for Defendant Parsons Brinckerhoff, Inc. U.S. Mail


David C. Groff Hand Delivery
22 Marisa M. Bavand Facsimile
Richard F. Shordt Overnight
23 Groff Murphy PLLC E-mail
300 East Pine St
24 Seattle, WA 98122
Telephone: (206) 628-9500
25 Facsimile: (206) 628-9506
dgroff@groffmurphy.com
26 mbavand@groffmurphy.com
rshordt@groffmurphy.com

DECLARATION OF TERENCE J. SCANLAN 6

1301 - Fifth Avenue, Suite 3401


Seattle, Washington 98101-2605
010351-01201 2034177.docx (206) 623-6501
1
Counsel for Plaintiff WSDOT U.S. Mail
2 Karl F. Oles Hand Delivery
David R. Goodnight Facsimile
3 Bart W. Reed Overnight
Rachel L. Dunnington E-mail
4 Stoel Rives, LLP
600 University Street, Suite 3600
5 Seattle, WA 98101
Telephone: (206) 624-0900
6 Facsimile: (206) 386-7500
karl.oles@stoel.com
7 david.goodnight@stoel.com
bart.reed@stoel.com
8
rachel.dunnington@stoel.com
9 chris.weiss@stoel.com

10 Daniel W. Galvin
Office of the Attorney General
11 PO Box 40113
Olympia, WA 98504-0113
12 danielg2@atg.wa.gov

13 Plaintiff Hitachi Zosen U.S.A. Ltd. U.S. Mail


Richard Prentke Hand Delivery
14 V.L. Woolston Facsimile
Brendan Peters Overnight
15 Andrew Greene E-mail
Perkins Coie LLP
16 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
17 Telephone: (206) 359-8000
Facsimile: (206) 359-9000
18 rprentke@perkinscoie.com
vwoolston@perkinscoie.com
19 bpeters@perkinscoie.com
agreene@perkinscoie.com
20
Third Party Defendant HNTB Corporation U.S. Mail
21 Bradley G. Taylor, WSBA #18611 Hand Delivery
John V. Leary, WSBA #36345 Facsimile
22 Overnight
Petra N. Ambrose, WSBA #48924 E-mail
23 Gordon & Rees LLP
701 5th Avenue, Suite 2100
24 Seattle, WA 98104
aestes@gordonrees.com
25 jleary@gordonrees.com
pambrose@gordonrees.com
26

DECLARATION OF TERENCE J. SCANLAN 7

1301 - Fifth Avenue, Suite 3401


Seattle, Washington 98101-2605
010351-01201 2034177.docx (206) 623-6501
1 Pro Hac Vice for Third-Party Defendant HNTB U.S. Mail
Corporation Hand Delivery
2 Christine E. Drage Facsimile
Overnight
3 Jenifer J. Brannen E-mail
Benjamin C. Bertch
4 Stephen B. Hart
Weil & Drage, APC
5 23212 Mill Creek Drive
Laguna Hills, CA 92653
6
cdrage@weildrage.com
7 jbrannen@weildrage.com
bbertch@weildrage.com
8 sbhart@weildrage.com

9
DATED this 12th day of July, 2017, at Seattle, Washington.
10

11 s/George L. Auslander
George L. Auslander, Paralegal
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DECLARATION OF TERENCE J. SCANLAN 8

1301 - Fifth Avenue, Suite 3401


Seattle, Washington 98101-2605
010351-01201 2034177.docx (206) 623-6501
Exhibit A
PATRICIA A. ROBRT
PRobert@skellengerbender.com

June 5, 2017

VIA E-MAIL

Brian R. Davidson
Dingess Foster Luciana Davidson & Chleboski LLP
20 Stanwix St., 3rd Fl.
Pittsburgh, PA 15222

RE: WSDOT v. STP, et al., No. 16-2-00980-34 Shannon & Wilsons Discovery
Responses

Dear Brian:

I am writing in response to your letter of May 26, 2017 regarding Shannon & Wilsons
Responses to STPs Interrogatories and Requests for Production of Documents. The items
addressed in your letter are responded to in turn below.

Forthcoming production of documents cited in Shannon & Wilsons Answers:

Shannon & Wilson acknowledges that it included citations to documents in its Answers to STPs
Interrogatories that have not yet been produced. These citations are to documents that Shannon
& Wilson intended to produce as part of its forthcoming supplemental production of non-
privileged documents once our privilege review winds up. However, we are producing them
under separate cover today as a smaller supplemental production to provide STP with prompt
access to these responsive documents.

100 Bankers Boxes of Hard Copy Documents:

We respectfully disagree with your assertion that Shannon & Wilsons response that it will make
its approximately 100 Bankers boxes of paper documents available for inspection at a mutually
convenient time is improper. We also respectfully disagree with your letters assertion that the
Order on Stipulated Discovery Protocol entered by Thurston County entered on January 13,
2017, before STP even filed suit against Shannon & Wilson, requires all parties to produce
digitalized hardcopy records at the producing partys expense. Instead, the Order requires those
parties who would not suffer undue hardship or unreasonable expense to produce digitalized
hardcopy records at its own expense.

010351-01201 1934779.docx
Brian R. Davidson
June 5, 2017
Page - 2

For example, and as explained in more detail below, the scope of STPs Request for Production
Nos. 4, 27, and 28 is still unclear, despite Shannon & Wilsons attempts to reach an
understanding and agreement with STP of an appropriate narrow scope. So, the context with
which Shannon & Wilsons potential undue hardship and unreasonable expense to digitalize an
undetermined amount of hardcopy documents cannot fully be ascertained until it becomes clearer
as to whether the universe of documents that STP seeks is broader and would require the
additional location, to the extent even possible, of hardcopy documents relating to a number of
other Projects not related to this lawsuit. Even with those issues aside, Shannon & Wilson has
approximately 100 Bankers boxes of hardcopy documents, maps, plans, drawings, and other
large documents (which likely present imaging and formatting problems) related to its work on
the AWV Project since 2001. It is our understanding that a significant majority of these
documents are printed duplicates of the documents Shannon & Wilson (and WSDOT) produced
electronically. The time and expense required to digitalize this significant volume of documents
(to the extent even possible given the size of some of these documents) is highly unreasonable,
particularly given Shannon & Wilsons role on this Project.

Therefore, we agree that a meet and confer is necessary to discuss these issues in more detail and
hopefully reach a reasonable agreement as to the inspection of these documents and not impose
an otherwise substantial, and frankly unnecessary, expense on Shannon & Wilson. As part of
this meet and confer, we again request that we reach a clearer understanding and narrowing of
the scope of STPs Request for Production Nos. 4, 27, and 28.

Request for Production No. 4:

As touched on above, and contrary to your letter, we believe that ambiguity still exists as to the
intended scope of this Request. In hopes of reaching a clearer understanding as to the scope of
this Request, we sought clarification from STP on May 19th and on May 30th, following your
letter of May 26th. However, we have not received a response from counsel regarding the
desired manner and scope of production of Shannon & Wilsons payment records. As we
explained by telephone and email on these dates, Shannon & Wilson does not have responsive
records (that are within proper scope to the Request) but is able to create what we believe are the
requested payment records. This will, however, require work performed by our clients
accounting department, as these are not records kept in its normal course of business; so it will
likely take more than 10 days for the accounting department to assemble those recordsonce we
understand what records STP is requesting. Therefore, we believe it would be beneficial to
include this issue as part of our meet and confer, so we may reach agreement on Request for
Production No. 4.

Request for Production Nos. 27 & 28:

Shannon & Wilson has prepared over 20 Geotechnical or Environmental Baseline Reports for
other projects. Shannon & Wilson has not located the electronic and/or hardcopy version(s) of
these documents (to the extent they even exist). It is our understanding that some of these
records may be stored off site and some may be on microfiche. As such, Shannon & Wilson will

010351-01201 1934779.docx
Exhibit B
From: Patricia Robert
To: George L. Auslander
Subject: FW: Shannon & Wilson Document Production - Meet and Confer
Date: Tuesday, July 11, 2017 10:07:58 AM

From: Terry Scanlan


Sent: Wednesday, July 05, 2017 5:59 PM
To: Brian Davidson
Cc: Rochelle Y. Nelson; Patricia Robert; Joe Luciana; James Malloy; John Parnass
Subject: RE: Shannon & Wilson Document Production - Meet and Confer

Brian,

We have not changed our position as you are aware, the vast majority of the documents contained
within the bankers boxes are already produced to you electronically. We reiterate our standing
offer that well make them available for your inspection at a mutually agreeable time. Likewise, as
you know, we were not parties when the discovery protocol was negotiated if wed been asked,
we would have objected to this onerous burden at the time. Since we werent, we object now.

If youd like to discuss further, well do that as well to see if there is a workable way around this
impasse.

Best,
Terry

Terence J. Scanlan
skellenger bender
COMMERCIAL LAW GROUP
DESIGN PROFESSIONAL REPRESENTATION | CONSTRUCTION LAW | GENERAL LITIGATION | APPELLATE ADVOCACY | MEDIATION

PHONE 206.623.6501 | FAX 206.447.1973


tscanlan@skellengerbender.com | www.skellengerbender.com
1301 Fifth Ave., Suite 3401 | Seattle, WA 98101

From: Brian Davidson [mailto:BDavidson@dfllegal.com]


Sent: Wednesday, July 05, 2017 6:04 AM
To: Terry Scanlan <TScanlan@skellengerbender.com>
Cc: Rochelle Y. Nelson <RNelson@skellengerbender.com>; Patricia Robert
<PRobert@skellengerbender.com>; Joe Luciana <JLuciana@dfllegal.com>; James Malloy
<JMalloy@dfllegal.com>; John Parnass <john.parnass@pacificalawgroup.com>
Subject: Shannon & Wilson Document Production - Meet and Confer

Terry,

I wanted to follow up with you regarding our meet and confer conducted on June 16, 2017
regarding Shannon & Wilsons document production. Based on the meet and confer, our
understanding is set forth below.

First, Shannon & Wilson has agreed to produce prior GBRs prepared by Shannon & Wilson in
response to STPs Document Requests Nos. 27 and 28.

Second, STP agrees to Shannon & Wilsons May 19, 2017 proposal to provide payment records
in response to STPs Document Request No. 4.

Third, STP maintains its position that Shannon & Wilson should produce the hard-copy
documents contained in its approximately 100 banker boxes in electronic form, as per the
Stipulated Discovery Protocol, and as the other parties in the case have done to date.

We look forward to receiving the documents covered under items 1 and 2 above.

Please let us know if Shannon & Wilson changes its position with respect to the production of
its hard-copy documents; otherwise, we plan to move to compel this electronic production.

Thanks,

Brian.

Brian Davidson
Dingess, Foster, Luciana, Davidson & Chleboski LLP
PNC Center, Third Floor
20 Stanwix Street
Pittsburgh, Pennsylvania 15222

412.926.1818 (o)
412-736-7920 (c)
bdavidson@dfllegal.com
www.dfllegal.com

This electronic message contains information from the law firm of Dingess, Foster, Luciana, Davidson & Chleboski
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only. If you are not an intended addressee, note that any disclosure, copying, distribution, or use of the contents of
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