Party Notice: CLARK/HATHAWAY DINWIDDIE, A JOINT VENTURE, INDIVID VS. ILLINOIS UNION INSURANCE COMPANY

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                                WEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

CHRISTINE E. DRAGE, ESQ., State Bar No. 168921
JIHAN MURAD, ESQ., State Bar No. 236682
S. BRADLEY HART, ESQ., State Bar No. 297119

WEIL & DRAGE, APC ELECTRONICALLY
23212 Mill Creek Drive FILED
Laguna Hills, CA 92653 Superior Court of California,
(949) 837-8200 4/43/0018.
0049) 837-9300 ~ FAX oe LO/: of 42 Court
cdrage@weildrage.com: jmurad@weildrage.com; bhart@weildrage.com BY: VANESSA WU.

Deputy Clerk

Attorneys for Specially-Appearing Non-Party,
ARUP NORTH AMERICA LTD.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

CLARK/HATHAWAY DINWIDDIE; et al., ) Case No. CGC-16-553972

Hon. Mary E. Wiss

Plaintiffs, Dept. 305
Vv. SPECIALLY-APPEARING NON-PARTY
ARUP NORTH AMERICA LTD.’S NOTICE
ILLINOIS UNION INSURANCE OF MOTION AND MOTION FOR

RECONSIDERATION OF THIS COURT’S
OCTOBER 3, 2018 ORDER RE: PROTECTIVE)
ORDER; MEMORANDUM OF POINTS AND

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COMPANY; et al., )
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; AUTHORITIES; DECLARATIONS OF
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Defendants.

CHARLES K. STEC AND STEPHEN BRAD
HART; [PROPOSED] ORDER

DATE: » 2018
TIME: 2:30 pm
DEPT: 305

Complaint Filed: August 30, 2016

TO THE HONORABLE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF
RECORD HEREIN:

PLEASE TAKE NOTICE that on , 2018, at 2:30 p.m., or as soon thereafter as
the matter may be heard, in Department 305 of the above-entitled Court, located at 400 McAllister
Street, San Francisco, California 94102, Specially-Appearing Non-Party Arup North America Ltd.

(“Arup”) will and hereby does, move for reconsideration of this Court’s October 3, 2018 Order with
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1

NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR RECONSIDERATION OF THIS COURT’S OCTOBER 3, 2018 ORDER28

WEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

regard to Arup’s Motion for Protective Order. As a Non-Party, Arup hereby specially appears to
present this Motion for Protective Order and hereby reserves all rights and defenses accordingly.
This motion is made pursuant to Code of Civil Procedure Sections 1008 and 473(b) which
grant this Court discretion to modify, amend or revoke the prior order. This motion is based upon
this Notice; the attached Memorandum of Points and Authorities; the accompanying Declarations of
Charles K. Stec and Stephen Brad Hart and exhibits thereto; and such other oral and documentary

evidence as may be received by the Court at the hearing of this motion.

DATED: October 12, 2018 WEIL & DRAGE, APC

By: /s/S. Bradley Hart
/s/ Charles K. Stec

CHRISTINE E. DRAGE

JIHAN MURAD

S. BRADLEY HART

Attorneys for Non-Party,

ARUP NORTH AMERICA LTD.

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NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR RECONSIDERATION OF THIS COURT’S OCTOBER 3, 2018 ORDERWEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION

On October 3, 2018, Non-party Arup North America Ltd.’s (“Arup”) Motion for Protective
Order came for hearing before this Court. This Court issued an order denying the motion on the
grounds that Arup’s counsel, the firm of Weil & Drage, APC, did not personally represent one of the
individuals to which the defendant Insurer parties sought to depose foreign witnesses Nick
O’Riordan and Tom Curran. However, Arup’s appearance counsel mistakenly informed the Court
that Arup’s counsel did not represent the individual in question. In fact, Arup’s counsel had been
appointed to represent the individual witness and Insurers had been informed of the same in clear
and unequivocal terms on September 20, 2018. The following is in part Arup’s meet and confer
correspondence to the defendant insurers:

“With regard to Weil & Drage’s representation of the nine witnesses
identified and subpoenaed by Illinois Union, I explained that you were
provided notice of our representation of all witnesses other than Mr.
O’Riordan (note that as of September 12, 2018, we had not confirmed Mr.
O’Riordan’s representation) on September 12, 2018 within our meet and
confer letter which stated at p. 2, para. 3:

“Second, with regard to your August 16, 2018 correspondence, while we
strongly object to your assertion that these witness depositions are
necessary given what we understand of the issues in this litigation, we can
confirm that this firm will represent all witnesses other than Mr. O’Riordan
at this time. Accordingly, please cease any contact with these individuals
and direct all further correspondence through this firm. (Emphasis added.)

You took issue with the phrase “will represent” as lacking, what I
understood from our conversation, an affirmative statement of Weil &
Drage’s “present” representation. We strongly disagree with this self-
serving interpretation, would characterize this “argument” as
gamesmanship, and find no merit to your assertion that you were not
provided notice of our representation on September 12, 2018. Additionally,
I included the same meet and confer language in an email correspondence
on September 18, 2018 (see attached) wherein we stated “Your firm was
given confirmation of witnesses including Mr. Dunn on September 12,
2018.” However, after receiving two written correspondences and my
verbal affirmation of our representation of witnesses yesterday, you stated
that you still have yet to receive “confirmation” of Weil & Drage’s
representation and requested further written correspondence. As such, I
hereby now reaffirm that Weil & Drage represents Stephen
McLandrich, Kirk Ellison, Andrew Yeskoo, Jeff Dunn, Chu Ho, Tom
Curran, Cheyenne Waldman, and Pawan Kumar with regard to Arup
North America Ltd.’s involvement as a non-party in this matter. I can
also confirm that we represent Mr. Nick O’Riordan. Accordingly, we
again request that your firm cease all correspondence with the nine
{01469173;1

3

NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR RECONSIDERATION OF THIS COURT’S OCTOBER 3, 2018 ORDER28

WEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

individuals listed above and direct all further communications to our firm.
As you know, communicating with these individuals after receiving
confirmation of their representation by counsel is improper.” (emphasis
added) (See Exhibit 1, a true and correct copy of the meet and confer
correspondence sent via email on September 20, 2018)

In spite of this representation, defendant Insurers counsel did not correct the record for the

Court and counsel for Arup erroneously did not correct the record.
I. ARGUMENT
a. This Court Is Vested With The Authority To Modify, Amend, Or Revoke The
October 3, 2018 Order.

Code of Civil Procedure Section 1008 provides that:

“When an application for an order has been made to a judge, or to a court, and

refused in whole or in part, or granted, or granted conditionally, or on terms, any

party affected by the order may, within 10 days after service upon the party of written

notice of entry of the order and based upon new or different facts, circumstances, or

law, make application to the same judge or court that made the order, to reconsider

the matter and modify, amend, or revoke the prior order. The party making the

application shall state by affidavit what application was made before, when and to

what judge, what order or decisions were made, and what new or different facts,

circumstances, or law are claimed to be shown.”

Furthermore, Code of Civil Procedure Section 473(b) provides that “The court may, upon any
terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal,
order, or other proceeding taken against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect... “ Code Civ. Proc. §473(b). “Civil Procedure section 473 "should be
liberally applied and the power freely exercised ... Thus, in determining the merits of a Code of
Civil Procedure section 473 motion, the court should take into account the circumstances of the case
and the prejudice, if any, to the parties... There is also a strong policy behind granting relief if the
moving party brings the motion for relief within the statutory time...” Carrasco v. Craft (1985)164
Cal.App.3d 796, 803. Finally, “Every court shall have the prower...to amend and control its process
and orders so as to make them conform to law and justice.” Code Civ. Proc. § 128(a)(8).

b. There Are New Facts and Circumstances Available That Were Mistakenly Not

Presented To The Court At The October 3, 2018 Hearing

On October 3, 2018, Arup’s Motion for Protective Order came regularly for hearing before

the Court. Declaration of Charles K. Stec [“Stec Decl.”], | 2. The motion requested that the Court

{01469173,1

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NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR RECONSIDERATION OF THIS COURT’S OCTOBER 3, 2018 ORDER28

WEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

issue a protective order precluding the Insurers from taking the foreign depositions of Messrs.
O’Riorden and Curran. /d., Exh. A. The Court heard oral argument from the parties present. During
oral argument, Insurers raised the issue of whether Arup’s counsel represented each of the
individuals that Insurers sought to depose. Stec Decl., § 3. Arup’s appearance counsel, Charles K.
Stec, incorrectly stated that Arup’s counsel represented all the individuals except Mr. O’Riorden. Jd.
Mr. Stec made this representation based on correspondence exchanged between Insurers and Arup’s
counsel on September 19, 2018. /d., Exh. B. After conclusion of oral argument, the court ruled that
since Arup’s counsel did not represent Mr. O’Riorden that the Motion for Protective Order was
denied, Stee Decl., 4, Exh. C.

However, Insurers’ counsel had previously met and conferred with Arup’s counsel, Mr. S.
Bradley Hart regarding which individuals that Arup’s counsel represented and had confirmed as of
September 20, 2018 that Arup’s counsel in fact represented each of the requested parties including
Messrs. O’Riorden and Curren. Declaration of S. Bradley Hart [“Hart Decl.”],§{ 2. Despite Insurers’
counsel having superior knowledge that Mr. O’Riorden was represented, counsel did not correct the
record or inform the court. Stec Decl., 5 and Exh. 1. This Court should not award Insurers’ counsel
for omitting information from the Court.

Since the Court’s October 3, 2018 decision was made based on whether Arup’s counsel
represents Mr. O’Riorden and that new facts mistakenly not presented to the Court conclusively
demonstrate that Arup’s counsel does in fact represent Mr. O’Riorden, this Court should reconsider
its October 3, 2018 order. Arup requests that this Court reissue the October 3, 2018 Order and grant
Arup’s Motion for Protective Order. Cal. Code Civ. Proc. §§ 128(a)(8); 473(b); 1008.

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NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR RECONSIDERATION OF THIS COURT’S OCTOBER 3, 2018 ORDER28

WEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

Ill. CONCLUSION

In light of the foregoing, Specially-Appearing Non-Party Arup respectfully requests that the

Court reconsider its October 3, 2018 Order and issue a new order granting a Protective Order

prohibiting Defendants Lexington Insurance Company and Indian Harbor Insurance Company’s

Motion to Depose Foreign Witnesses Nick O’Riordan and Tom Curran based on the arguments

previously presented in Arup’s Motion for Protective Order.

DATED:

{01469173,1

October 12, 2018 WEIL & DRAGE, APC

By: /s/S. Bradley Hart
/s/ Charles K. Stec

CHRISTINE E. DRAGE

JIHAN MURAD

S$. BRADLEY HART

Attorneys for Non-Party,

ARUP NORTH AMERICA LTD.

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NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION

FOR RECONSIDERATION OF THIS COURT’S OCTOBER 3, 2018 ORDERCe aD HW eB WwW YD mm

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WEIL & DRAGE
23212 ll Creek Orve
Laguna Hills, CA 92059,
Phone. (048) 837-8200
Fax (048) 897-9300

DECLARATION OF STEPHEN “BRAD” HART

I, Stephen Brad Hart, declare:

1, I am attorney at law duly licensed to practice before all courts of the State of
California and am an associate with the law firm of Weil & Drage, APC, counsel for Non-Party
ARUP NORTH AMERICA LTD. (“Arup”). The matters stated herein are within my personal
knowledge, and if called upon to testify thereto, I could and would competently do so.

2. I met and conferred with Insurers’ counsel regarding which individuals that Arup’s
counsel represented. On September 19, 2018 I spoke with Marjie Barrows telephonically and
communicated that Arup has confirmed representation of all witnesses identified (including Nick
O’Riordan and Tom Curran).

3. On September 20, 2018 I sent an email to Insurers’ counsel confirming that my firm
represented each of the individuals including Mr. O’Riorden. (Attached hereto is a true and correct
copy of my September 20, 2018 email as Exhibit 1.)

I declare under penalty of perjury under the laws of the State of California, that the foregoing
is true and correct and that this Declaration was executed on this 12" day of October, 2018, at

Laguna Hills, California.

STEPHEN BRAD HART, Declarant

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NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR RECONSIDERATION OF THIS COURT’S OCTOBER 3, 2018 ORDERoem IN DH RB BW NR

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WEIL & DRAGE
23212 Ml Crook Drive
Laguna Hits, CA 92863
Phone (649) 637-8200
Fax (648) 697-6900

DECLARATION OF CHARLES K, STEC

I, CHARLES K. STEC, declare:

1. Tam attorney at law duly licensed to practice before all courts of the State of
California and am an associate with the law firm of Weil & Drage, APC, counsel for Non-Party
ARUP NORTH AMERICA LTD. (“Arup”). The matters stated herein are within my personal
knowledge, and if called upon to testify thereto, I could and would competently do so.

2, On October 3, 2018, Arup’s Motion for Protective Order came regularly for hearing
before the Court. The motion requested that the Court issue a protective order precluding the Insurers
from taking the foreign depositions of Messrs. O’Riorden and Curran. The Court heard oral
argument from the parties present. (A true and correct copy of Arup’s Motion for Protective Order is
attached hereto as Exhibit A.)

3. During oral argument, Insurers raised the issue of whether Arup’s counsel represented
each of the individuals that Insurers sought to depose. I, as appearance counsel, incorrectly stated
that my firm represented all the individuals except Mr, O’Riorden. I made this representation based
on correspondence exchanged between Insurers and Arup’s counsel on September 19, 2018. (A true
and correct copy of the September 19, 2018 correspondence is attached hereto as Exhibit B.)

4, After conclusion of oral argument, the court ruled that since Arup’s counsel did not
represent Mr, O’Riorden that the Motion for Protective Order was denied, ( A true and correct copy
of the minutes for the October 3, 2018 hearing is attached hereto as Exhibit C.)

5, At the October 3, 2018 hearing, Insurers’ counsel did not correct the record or inform
the court of its knowledge regarding Arup’s representations of Mr. O’Riorden.

I declare under penalty of perjury under the laws of the State of California, that the foregoing
is true and correct and that this Declaration was executed on this 12" day of October, 2018, at

Laguna Hills, California.

(01469173;1}

NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR RECONSIDERATION OF THIS COURT’S OCTOBER 3, 2018 ORDERExhibit 1From: Brad Hart

Sent: Thursday, September 20, 2018 11:27 AM

To: 'mbarrows@fgppr.com'; 'DeLaney, Kathleen M.'

Cc: Christine E. Drage; Jihan Murad; Diane Langel; Charles Stec

Subject: Clark/Hathaway Dinwiddie; et al. v. Illinois Union Insurance Co.; et al. - Illinois Union
Subpoenas and Motion to Compel Arup PMQ

Ms. Barrows,

This email will briefly summarize our telephone conference yesterday and further address
Illinois Union Insurance Company, Liberty Surplus Insurance Company and Travelers Excess
and Surplus Lines Company’s (hereinafter “Illinois Union”) Motion to Compel Arup’s PMQ
Deposition.

With regard to Weil & Drage’s representation of the nine witnesses identified and subpoenaed
by Illinois Union, I explained that you were provided notice of our representation of all
witnesses other than Mr. O’Riordan (note that as of September 12, 2018, we had not
confirmed Mr. O’Riordan’s representation) on September 12, 2018 within our meet and confer
letter which stated at p. 2, para. 3:

“Second, with regard to your August 16, 2018 correspondence,
while we strongly object to your assertion that these witness
depositions are necessary given what we understand of the
issues in this litigation, we can confirm that this firm will
represent all witnesses other than Mr. O’Riordan at this time.
Accordingly, please cease any contact with these individuals
and direct all further correspondence through this firm.

(Emphasis added.)

You took issue with the phrase “will represent” as lacking, what I understood from our
conversation, an affirmative statement of Weil & Drage’s “present” representation. We
strongly disagree with this self-serving interpretation, would characterize this “argument” as
gamesmanship, and find no merit to your assertion that you were not provided notice of our
representation on September 12, 2018. Additionally, I included the same meet and confer
language in an email correspondence on September 18, 2018 (see attached) wherein we stated
“Your firm was given confirmation of witnesses including Mr. Dunn on September 12, 2018.”

However, after receiving two written correspondences and my verbal affirmation of ourrepresentation of witnesses yesterday, you stated that you still have yet to receive
“confirmation” of Weil & Drage’s representation and requested further written
correspondence. As such, | hereby now reaffirm that Weil & Drage represents Stephen
MeLandrich, Kirk Ellison, Andrew Yeskoo. Jeff Dunn. Chu Ho, Tom Curran, Cheyenne
Waldman, and Pawan Kumar with regard to Arup North Ameri td.’s involvemen
party in this matter. | can also confirm that we represent Mr. Nick O'Riordan. Accordingly,
we again request that your firm cease all correspondence with the nine individuals listed above
and direct all further communications to our firm. As you know, communicating with these
individuals after receiving confirmation of their representation by counsel is improper.

as anon

We also discussed Arup’s request to have the Motion to Compel taken off calendar. You
expressed what appears to be in line with the letter we received on September 19, 2018, which
stated that you are unwilling to take the Motion to Compel off calendar until we provide the
names of PMQ individual(s) and the topics for which Arup will be designating witnesses. We
believe this Tequest to bea conflation of issues and i improper. Illinois Union’s Motion to

; it does not
seck to compel the name(s) of Arup’s PMQ(s) nor does it seek to compel a list “of PMQ topics
as to each PMQ. You were provided available PMQ dates of October 17 and 19, 2018 on
August 20, 2018 prior to your filing the Motion to Compel, and then again, per your request
for an earlier PMQ date, you were provided October 12, 2018 as an available date on
September 12, 2018. Given Illinois Union’s conflation of these issues and unwillingness to
take its Motion to Compel off calendar in spite of Arup’s willingness to provide a PMQ, Arup
has no other option than to seck the Court’s intervention. This is yet another example of
further unnecessary burden and expense to non-party Arup, and we reserve our right to seek
sanctions should it persist.

Lastly, you inexplicably refused to confirm October 12, 2018 for the deposition of Arup’s
PMQ. You stated that you need the PMQ(s) identified and the designation of topics prior to
confirming the date. Again, this is improper, and should you not confirm this date by
September 25, 2018, I cannot guarantee that Arup’s PMQ(s) will still be available on October
12, 2018.

Please let us know if you would like to discuss further.

Regards,

S.Brad Hart, Esq.
WEIL & DRAGE, APC
(949) 837-8200 x 207

WEIL & DRAGE

CALIFORNIA NEVADA ARIZONA

23212 Mill Creek Drive 2500 Anthem Village Drive 1717 E. Bell Road, Suite 1

Laguna Hills, CA 92653 Henderson, NV 89052 Phoenix, AZ 85022
(949) 837-8200 phone (702) 314-1905 phone (602) 971-0159 phone

(949) 837-9300 fax (702) 314-1909 fax‘This e-mail message, any attachments & the information contained therein are intended to be privileged & confidential communications protected from disclosure by
legal privilege. H you are not the intended recipient, any dissemination, distribution oF copying is strictly prohibited. If you have received this e-mail message in error,
please notify the sender by e-mail at bharv@-weildrage.com & permanently delete this message. 7Exhibit AWEIL & DRAGE
28212 Mil Crook Dive
Laguna Hils, CA. 926
hone (86) 837-8200
Fax (840) 837-9200

CHRISTINE E. DRAGE, ESQ., State Bar No. 168921
JIHAN MURAD, ESQ., State Bar No. 236682
S. BRADLEY HART, ESQ., State Bar No. 297119

WEIL & DRAGE, APC ELECTRONICALLY
23212 Mill Creek Drive FILED
Laguna Hills, CA 92653 Superior Court of Catifornia,
(949) 837-8200 County of San Francisco
(949) 837-9300 — FAX 09/18/2018
7 7 bin: 7 - bhart@wei Clerk of the Court
cdrage@weildrage.com; jmurad@weildrage.com; bhart@weildrage.com BY:JUDITH NUNEZ
Deputy Clerk

Attorneys for Specially-Appearing Non-Party,
ARUP NORTH AMERICA LTD.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Case No. CGC-16-553972
Hon. Mary E. Wiss
Dept. 305

CLARK/HATHAWAY DINWIDDIE,; et al.,
Plaintiffs,

SPECIALLY-APPEARING NON-PARTY
ARUP NORTH AMERICA LTD.’S NOTICE
OF MOTION AND MOTION FOR
PROTECTIVE ORDER RE: DEPOSITIONS
OF NICK O’RIORDAN AND TOM CURRAN;

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Defendants. ) MEMORANDUM OF POINTS AND
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ILLINOIS UNION INSURANCE
COMPANY; et al.,

AUTHORITIES; DECLARATION OF
STEPHEN BRAD HART: [PROPOSED]
ORDER

DATE: October 3, 2018
TIME: 2:30 p.m.
DEPT: 305

Complaint Filed: August 30, 2016

TO THE HONORABLE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF
RECORD HEREIN:

PLEASE TAKE NOTICE that on October 3, 2018, at 2:30 p.m., or as soon thereafter as the
matter may be heard, in Department 305 of the above-entitled Court, located at 400 McAllister
Street, San Francisco, California 94102, Specially-Appearing Non-Party Arup North America Ltd.
(“Arup”) will and hereby does, move for a Motion for Protective Order with regard to the

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NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR PROTECTIVE ORDERWEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

depositions of Nick O’Riordan and Tom Curran. As a Non-Party, Arup hereby specially appears to
present this Motion for Protective Order and hereby reserves all rights and defenses accordingly.

This motion is made pursuant to Code of Civil Procedure Sections 2025.420 and 2017.020 in
order to protect Nick O’Riordan and Tom Curran from unwarranted annoyance, oppression, and/or
expense by Lexington Insurance Company and Indian Harbor Insurance Company (hereinafter
collectively “Indian Harbor”). Arup is a non-party and has no direct, substantive involvement with
the repairs at issue in this coverage dispute between Clark/Hathaway Dinwiddie, a Joint Venture and
Indian Harbor as Arup understands the facts of this case. The burden to Arup on balance as a non-
party should be granted even additional weight and, given the facts at issue, Arup’s professional
scope of services at Salesforce Tower, and the requested individuals’ lack of knowledge regarding
the repairs in question, Indian Harbor’s Motion to Depose Foreign Witnesses is overburdensome and
not reasonably calculated to lead to the discovery of admissible evidence. Arup also understands
that the Motion is likely untimely given the time needed to seek International Judicial Assistance and
the Court’s percipient witness cutoff of October 15, 2018. Additionally, Arup intends to put forth a
Person Most Knowledgeable (“PMQ”) on October 12, 2018, prior to the percipient cutoff (pending
confirmation by parties to this litigation). A PMQ deposition should be sufficient given Arup’s
tenuous connection to the issues at hand in this litigation and should be solely utilized as a far less
costly and burdensome option.

Pursuant to Code of Civil Procedure Section 2016.040, counsel for Arup has met and
conferred with counsel for Indian Harbor (albeit just recently given Arup was not served with Indian
Harbor’s Motion), and has informed counsel for Indian Harbor that Arup will provide a PMQ prior
to October 15, 2018, that Mr. O’Riordan’s and Mr. Curran’s United Kingdom depositions are not
reasonably calculated to lead to the discovery of admissible evidence, and that Arup had no direct
involvement with the issues in this matter. Additionally, should Indian Harbor still decide that
depositions beyond the PMQ deposition are needed; there are other individuals whom reside in
California who have superior knowledge of Arup’s scope of professional geotechnical services
provided with regards to the Salesforce Tower construction. Nevertheless, Indian Harbor’s counsel

has insisted on deposing the aforementioned non-resident individuals and refused to take its Motion

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NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR PROTECTIVE ORDER28

WEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

off calendar despite being informed of Arup’s agreement to provide a PMQ witness and
Mr. O’Riordan’s and Mr. Curran’s lack of direct, pertinent involvement with the insurance coverage
issues in this matter.

Given the foregoing and arguments more thoroughly discussed below, Arup respectfully
requests that the Court issue a Motion for Protective Order precluding Indian Harbor from taking the
depositions of Nick O’Riordan and Tom Curran in the United Kingdom. This motion is based upon
this Notice; the attached Memorandum of Points and Authorities; the accompanying Declaration of
Stephen Brad Hart and exhibits thereto; and such other oral and documentary evidence as may be
received by the Court at the hearing of this motion.

DATED: September 18, 2018 WEIL & DRAGE, APC

By:  /s/ S. Bradley Hart

CHRISTINE E. DRAGE

JIHAN MURAD

S. BRADLEY HART

Attorneys for Non-Party,

ARUP NORTH AMERICA LTD.

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NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR PROTECTIVE ORDERWEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

MEMORANDUM OF POINTS AND AUTHORITIES
A. FACTUAL AND PROCEDURAL BACKGROUND
Non-party Arup’s limited knowledge of the facts related to this matter are derived from the
pleadings reviewed to date that include the original Complaint filed August 30, 2016 (hereinafter
“Complaint’) by Clark/Hathaway Dinwiddie, A Joint Venture (“CHDJV”) against numerous
insurance carriers, including Indian Harbor. (Declaration of Mr. Hart at {| 2.) The claims appear to
center around the work required to repair forty-two (42) load bearing elements and the related
excavation required to complete this repair. Arup was a geotechnical subconsultant on the
Salesforce Tower in contract with the architect Kendall Heaton Associates, Inc. Arup’s scope of
services related to professional design geotechnical services that included soils testing and other
geotechnical related analysis. (Declaration of Mr. Hart at 3.) Arup did provide recommendations
as to the foundation design including the deep foundation elements and was tangentially involved
with load bearing element repair workplan(s); however, Arup’s scope of professional services was
not directly related to the load bearing element physical repairs at issue between CHDJV and its
insurance carriers as Arup understands this dispute. (Declaration of Mr. Hart at 4.) The allegations
in the Complaint related to the load bearing elements are stated at Page 3, Lines 20-26:
CHDJV entered into a subcontract with Layne Christensen
Company ("Layne") to install the foundation elements for the
building, which are known as load bearing elements ("LBEs"). Layne
undertook the subcontract work through its Bencor division. The 42
LBEs that comprise the foundation are rectangular concrete and
reinforcing steel structures that were constructed below street grade.
Layne was responsible for the excavations in which the LBEs were
constructed, as well as for the reinforcing steel and structural
concrete that together constituted the LBEs. (Emphasis added.)
The crux of the dispute between CHDJV and its insurers is stated at Page 7, Lines 3-8:
The "accidental loss or damage" to the LBEs at the Project, which
resulted from the intrusion of the lean fill and/or native material into

{01456477;1}

4

NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR PROTECTIVE ORDERWEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

the structural concrete, thereby damaging the structural concrete,

triggers coverage under the insuring agreement of the Policy, and no

Policy exclusion applies to prevent coverage for the costs,

expenses, and losses sustained by CHDJV, individually and as

assignee of both Steadfast and Layne, and Transbay as a result of

the damage to the LBEs. (Emphasis added.)

B. INSUFFICIENT NOTICE TO ARUP
To our knowledge, Arup has yet to be served with Indian Harbor’s motion and was not

provided sufficient notice to respond. Arup was provided a copy by an entity that was served
approximately one weck after it was served and two business days prior to when Arup’s Opposition
would have been due. On September 13, 2018, counsel for Indian Harbor, Mr. Jon T. Neumann, and
counsel for Arup, Mr. Brad Hart, spoke regarding Indian Harbor’s Motion for Deposition of Foreign
Witnesses Nick O’Riordan and Tom Curran. Mr. Neumann was informed that Arup was not served
and requested that the hearing date of September 17, 2018 be continued to allow sufficient time for
Arup to meet and confer and respond. (Declaration of Mr. Hart at 95.) A true and correct copy of
Indian Harbor’s Motion to Depose Foreign Witnesses is attached hereto as Exhibit A. It was also
discussed that Arup believes the depositions of Mr. O’Riordan and Mr. Curran to be unnecessary,
burdensome, and oppressive given Arup’s scope of services generally and more specifically the
requested witnesses’ limited involvement in the furtherance of professional services that were
provided by Arup. Additionally, it was communicated that Arup intends to put forth a PMQ on
October 12, 2018 and that Mr. O’Riordan and Mr. Curran would not be the most knowledgeable
individuals. Lastly, this lack of notice made it impossible to timely communicate with
Mr. O'Riordan and Mr. Curran to obtain declarations in support of this Motion.
//t
Hit
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Hf
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{01456477;1}

5

NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR PROTECTIVE ORDERWEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

Il. ARGUMENT
A. A RESPONDING PARTY MAY MOVE THE COURT FOR A PROTECTIVE
ORDER TO PROTECT ANY PARTY FROM UNWARRANTED ANNOYANCE,
EMBARRASSMENT OR OPPRESSION.

The party to whom discovery is directed may move for a protective order pursuant to
California Code of Civil Procedure Section 2025.420, which states “[t]he court, for good cause
shown, may make any order that justice requires to protect any party from unwarranted annoyance,
embarrassment, oppression, or undue burden and expense.” The protective order may include that
the deposition not be taken at all. Code of Civil Procedure Section 2025.420(b)(1). Furthermore, it
is a misuse of the discovery process to “[e]mploy a discovery method in a manner or to an extent that
causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Code
of Civil Procedure Section 2023.010(a).

It is well settled that courts have wide discretion in granting or denying discovery. Emerson
Electric Co. y. Superior Court (1997) 16 Cal.4th 1101, 1107. Pursuant to California Code of Civil
Procedure Section 2025.420(b):

The court, for good cause shown, may make any order that justice
requires to protect any party, deponent, or other natural person or
organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. This protective order may
include, but is not limited to, one or more of the following directions:
(1) That the deposition not be taken at all.

Here, as set forth above, Mr. O’Riordan and Mr. Curran were not the individuals charged.
with day-to-day operations of Arup’s Salesforce Tower scopes of professional services.
Accordingly, if Indian Harbor is allowed to take these depositions, it will cause both unwarranted
annoyance and embarrassment and undue burden and expense. Indian Harbor has made no showing
that Mr. O’Riordan and Mr. Curran have specific knowledge related to the main issues of this case
and have certainly not made a clear showing of either gentleman’s "superior" knowledge regarding

the subject project. Indian Harbor has also not made an adequate showing of the necessity for these
101456477:1

6

NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR PROTECTIVE ORDER28

WEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

individuals in light of their out-of-country residency and other more knowledgeable individuals
including the senior geotechnical engineer on the project who was neither Mr. O’Riordan nor
Mr. Curran. Arup has offered a PMQ with such “superior” knowledge, and there are other
individuals that worked on Salesforce Tower for Arup who have direct day-to-day knowledge of
Arup’s scope, albeit not pertaining directly to the LBE repairs undertaken by others. In fact,
Mr. O’Riordan is more akin to corporate officer given his limited role and seniority within Arup.
"[I]t amounts to an abuse of discretion to withhold a protective order when a plaintiff seeks to depose
a corporate ... corporate officer ... absent a reasonable indication of the officer's personal
knowledge of the case and absent exhaustion of less intrusive discovery methods." Liberty
Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1287, 13 Cal.Rptr.2d 363 (emphasis
added). In Liberty Mutual, the Court of Appeal held:
... that when a plaintiff seeks to depose a corporate president or

other official at the highest level of corporate management, and that

official moves for a protective order to prohibit the deposition, the trial

court should first determine whether the plaintiff has shown good

cause that the official has unique or superior personal knowledge of

discoverable information. If not ... the trial court should issue the

protective order and first require the plaintiff to obtain the

necessary discovery through less-intrusive methods. These would

include interrogatories directed to the high-level official to explore the

state of his or her knowledge or involvement in plaintiffs case; the

deposition of lower-level employees with appropriate knowledge and

involvement in the subject matter of the litigation; and the

organizational deposition of the corporation itself, which will require

the corporation to produce for deposition the most qualified officer or

employee to testify on its behalf as to the specified matters to be raised

at the deposition.(§ 2025, subd. (d)(6).) Should these avenues be

exhausted, and the plaintiff make a colorable showing of good cause

{01456477;1}

7

NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR PROTECTIVE ORDER28

WEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

that the high-level official possesses necessary information to the case,
the trial court may then lift the protective order and allow the
deposition to proceed. (emphasis added)

Indian Harbor’s request for Mr. Curran is even more perplexing. As a much lower ranking
staff member, Mr. Curran’s primary experience and expertise sought was related to the proposed
high speed rail connection at a neighboring property. Mr. Curran appears on very few meeting
agendas, updates, daily reports, or emails related to the Salesforce Tower, nor does he appear to have
authored any reports.

Accordingly, pursuant to the holding in Liberty Mutual, Indian Harbor’s discovery must be
directed to "employees with appropriate knowledge and involvement in the subject matter of the
litigation,” not to Mr. O’Riordan or Mr. Curran who are being added pursuant to what appears to be
a “shotgun” approach that is improperly directed at a non-party who is afforded even higher levels of
scrutiny when the question of burden is addressed.

iif. A HIGHER LEVEL OF PROTECTION IS AFFORDED TO NON-PARTIES

California courts repeatedly have stated that non-parties should not be subjected to a greater
burden than parties, and indeed should be somewhat protected. See, e.g., Catholic Mutual Relief
Society v. Super. Ct., 42 Cal. 4th 358, 366 n.6 (2007) (“The permissible scope of discovery in
general is not as broad with respect to nonparties as it is with respect to parties.”); Unzipped
Apparel, 156 Cal. App. 4th at 133 (“‘nonparty witness should be somewhat protected from the

burdensome demands of litigation’” (citation omitted)). Thus, to the extent a party attempts to
impose discovery burdens on a non-party witness equivalent to, if not greater than, what could be
imposed on a party, there is ample authority to support the argument that such discovery is improper.
Courts retain broad discretion to protect parties from the burden and expense of overreaching
discovery demands. See Cal. Civ. Proc. Code §§ 2017.020, 2019.030, 2023.030. And since
“[d]iscovery procedures are generally less onerous for strangers to the litigation,” Monarch
Healthcare, 78 Cal. App. 4th at 1289-90, these protections apply with even greater force to non-
parties. California courts have consistently emphasized that “particularly when dealing with an
entity which is not even a party to the litigation, the court should attempt to structure discovery ina

{01456477;1}

8

NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR PROTECTIVE ORDER28

WEIL & DRAGE
28212 Mil Creek Drve

Laguna Mils. CA 92653
Phone (949) 837-6200
Fax. (949) 837-9200

manner which is least burdensome to such an entity,” Calcor, 53 Cal. App. 4th at 222 (holding that
discovery demand was unduly burdensome because it was so broad that it in effect asked for
everything in the custodian’s possession relating to the subject of litigation); see Monarch, 78 Cal.
App. 4th at1289-90 (observing that while “parties should be subject to the full panoply of discovery
devices... nonparty witnesses should be somewhat protected from the burdensome demands of
litigation”). Thus, “the concerns for avoiding undue burdens on the ‘adversary’ in the litigation ...
apply with even more weight to a nonparty.” Calcor, 53 Cal. App. 4th at 225 (acknowledging “the
tremendous burdens promiscuous discovery has placed on litigants and nonparties alike”); see
Obregon v. Super. Ct., 67 Cal. App. 4th 424, 431 (1998) (“When discovery requests are grossly
overbroad on their face, and hence do not appear reasonably related to a legitimate discovery need, a
reasonable inference can be drawn of an intent to harass and improperly burden.”).
IV. CONCLUSION

In light of the foregoing, Specially-Appearing Non-Party Arup respectfully requests the
Court issue a Protective Order prohibiting Defendants Lexington Insurance Company and Indian
Harbor Insurance Company’s Motion to Depose Foreign Witnesses Nick O’Riordan and Tom
Curran. Indian Harbor’s motion calls for the depositions of non-party, non U.S. resident individuals
wherein the likelihood that these depositions will lead to discovery of admissible evidence is
outweighed by the burden, expense and intrusiveness of Indian Harbor’s request. Crucially, Arup
has in good faith offered a PMQ that should be sufficient for parties to obtain the testimony deemed
necessary and if not, there are other individuals in the U.S. with superior knowledge related to
Arup’s professional design geotechnical scopes of services at Salesforce Tower.

DATED: September 18, 2018 WEIL & DRAGE, APC

By: /s/S. Bradley Hart

CHRISTINE E. DRAGE

JIHAN MURAD

S. BRADLEY HART

Attorneys for Non-Party,

ARUP NORTH AMERICA LTD.

{01456477;1}

9

NON-PARTY ARUP NORTH AMERICA LTD.’S MOTION
FOR PROTECTIVE ORDER_

oe Wa KD Hh eB Ww oN

10

28

WEIL & DRAGE
23212 Mil Creek Drve
Laguna Hits, CA 62653
Phone (946) 837-8200
Fex (648) 837-9900

DECLARATION OF STEPHEN “BRAD” HART

I, Stephen Brad Hart, declare:

1, I am attorney at law duly licensed to practice before all courts of the State of
California and am an associate with the law firm of Weil & Drage, APC, counsel for Non-Party
ARUP NORTH AMERICA LTD. (“Arup”). The matters stated herein are within my personal
knowledge, and if called upon to testify thereto, I could and would competently do so.

2. I have reviewed the matter entitled CLARK/HATHAWAY DINWIDDIE; et al., v. ILLINOIS
UNION INSURANCE COMPANY; et al., Case No. CGC-16-553972, filed on August 30, 2016.

3. Arup provided professional design consulting services to Kendall Heaton Associates,
Inc., pursuant to a contract dated on or around August 6, 2012.

4, The load bearing elements were not installed by Arup.

5. On September 13, 2018, counsel for Indian Harbor, Mr. Jon T. Neumann and I spoke
regarding Indian Harbor’s Motion for Deposition of Foreign Witnesses Nick O’Riordan and
Tom Curran. Mr. Neumann was informed that Arup was not served and requested that the hearing
date of September 17, 2018 be continued to allow sufficient time for Arup to meet and confer and
respond. It was also discussed that Arup had agreed to provide a PMQ on or around October 12,
2018.

6. A true and correct copy of Indian Harbor’s Motion to Depose Foreign Witnesses is
attached hereto as Exhibit A.

I declare under penalty of perjury under the laws of the State of California, that the foregoing
is true and correct and that this Declaration was executed on this 18" day of September, 2018, at

Laguna Hills, California.

STEPHEN BRADHART, Declarant

(01456477;1}
10

NON-PARTY ARUP NORTH AMERICA LTD,’S MOTION
FOR PROTECTIVE ORDEREXHIBIT “A”wn

STEPTOE & JOHNSON, LLP

Jon T. Neumann (State Bar No. 277331)
Lisa M. Petrovsky (State Bar No. 239539)
633 West Fifth Street, Suite 700

Los Angeles, CA 90071

Telephone: 213-439-9400
Facsimile: 213-439-9599
Email: jneumann@steptoe.com
Email: Ipetrovsky@steptoe.com

STEPTOE & JOHNSON, LLP
Roger E, Warrin (pro hac vice)
James E. Rocap III (pro hac vice)
1330 Connecticut Avenue, NW
Washington, DC 20036

Telephone: — 202-429-3000
Facsimile: 202-261-0547
Email: rwarin@steptoe.com
Email: jrocap@steptoe.com

Attorneys for Defendants Lexington Insurance
Company and Indian Harbor Insurance Company

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

CLARK/HATHAWAY DINWIDDIE, A JOINT
VENTURE, individually, and for the use and
benefit of both STEADFAST INSURANCE
COMPANY and LAYNE CHRISTENSEN
COMPANY, and TRANSBAY TOWER LLC,

Plaintiffs,
vs.

ILLINOIS UNION INSURANCE COMPANY,
LEXINGTON INSURANCE COMPANY,
INDIAN HARBOR INSURANCE COMPANY,
LIBERTY SURPLUS INSURANCE
COMPANY, and TRAVELERS EXCESS AND
SURPLUS LINES COMPANY,

Defendants.

2

Case No.: CGC-16-553972

DEFENDANTS LEXINGTON
INSURANCE COMPANY AND INDIAN
HARBOR INSURANCE COMPANY’S
NOTICE OF MOTION AND MOTION TO
DEPOSE FOREIGN WITNESS NICK
O'RIORDAN AND TOM CURRAN IN
LONDON

Date: September 17, 2018
Time: 10:30 a.m.

Dept.: 305

Judge: Hon. Mary E. Wiss

Complaint Filed: August 30, 2016

LEXINGTON AND INDIAN HARBOR’S NOTICE OF MOTION AND MOTION TO
DEPOSE FOREIGN WITNESS NICK O'RIORDAN AND TOM CURRAN IN LONDONwn

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

YOU ARE HEREBY NOTIFIED THAT on September 17, 2018 at 10:30 a.m. or as
soon thereafter as this matter may be heard in Department 305 of the Superior Court of the
State of California in and for the County of San Francisco, located at 400 McAllister Street,
San Francisco, California 94102, Defendants Lexington Insurance Company and Indian Harbor
Insurance Company (“Defendants”) will and hereby do move this Court to enter an order
allowing Defendants to Depose Arup witnesses Nick O'Riordan and Tom Curran in London,
England.

This Motion is made pursuant to California Code of Civil Procedure section 2027.010
and the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or
Commercial Matters to request the depositions of foreign witnesses currently living and/or
working in the United Kingdom. As the lead geotechnical engineering firm on the project,
testimony from Arup employees Nick O'Riordan and Tom Curran is highly relevant to this
litigation. Accordingly, Defendants respectfully request that the Court enter an order permitting
the taking of the depositions of Messrs. O'Riordan and Curran in London. Defendants also
respectfully request that the Court execute and issue the accompanying Letter of Request to be
delivered to the Central Authority of the United Kingdom, England and Wales.

This Motion is based upon this Notice of Motion and Motion, the Memorandum of
Points and Authorities, the Declaration of Lisa M. Petrovsky, the Letter of Request and such
evidence and argument as may be presented at the hearing on the Motion.

DATED: August 23, 2018 STEPTOE & JOHNSON LLP

By: /s/ Lisa M. Petrovsk
Lisa M. Petrovsky (SBN 239539)
633 West Fifth Street, Suite 700
Los Angeles, CA 90071

Attorneys for Defendants Lexington

Insurance Company and Indian Harbor
Insurance Company

3

LEXINGTON AND INDIAN HARBOR’S NOTICE OF MOTION AND MOTION TO
DEPOSE FOREIGN WITNESS NICK O'RIORDAN AND TOM CURRAN IN LONDONCem DH PB YW NH

BO i a
Cm IN AA BY KH SF SS

20

PROOF OF SERVICE VIA FILE & SERVEXPRESS
F.R.C.P. 5/C.C.P. § 1013a(3)/ Cal. R. Ct. R. 2.260

I am a resident of, or employed in, Maricopa County, Arizona. I am over the age of 18
and not a party to this action. My business address is: Steptoe & Johnson LLP, 201 E.
Washington Street, Suite 1600, Phoenix, Arizona 85004.

On August 23, 2018, I electronically served the following listed document(s) via File &
ServeXpress described as: DEFENDANTS LEXINGTON INSURANCE COMPANY AND
INDIAN HARBOR INSURANCE COMPANY’S NOTICE OF MOTION AND MOTION
TO DEPOSE FOREIGN WITNESS NICK O'RIORDAN AND TOM CURRAN IN
LONDON on the recipients designated on the Transaction Receipt located on the File &
ServeXpress website: www.fileandservexpress.com. To my knowledge, the transmission was
reported as complete and without error. See Cal. R. Ct. R. 2.253, 2.255, 2.260.

On August 23, 2018, copies of the document listed above were provided to a registered
process server who was directed to personally deliver the documents to:

PILLSBURY WINTHROP SHAW PITTMAN LLP
CLARK THIEL

MICHAEL EVAN JAFFE

DAVID L. BECK

Four Embarcadero Center, 22nd Floor

San Francisco, CA 94111-5998

ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP.
GEORGE T. MCDONNELL

MARK R. HARTNEY

865 South Figueroa Street, Suite 2800

Los Angeles, California 90017-2543

I declare under penalty of perjury under the laws of the State of California and the
United States of America that the above is true and correct. Executed on August 23, 2018 in

Phoenix, Arizona.

Diane Linn C2 a 2 : fo

Type or Print Name Signature

4

LEXINGTON AND INDIAN HARBOR’S NOTICE OF MOTION AND MOTION TO
DEPOSE FOREIGN WITNESS NICK O'RIORDAN AND TOM CURRAN IN LONDONwn

STEPTOE & JOHNSON, LLP

Jon T. Neumann (State Bar No. 277331)
Lisa M. Petrovsky (State Bar No. 239539)
633 West Fifth Street, Suite 700

Los Angeles, CA 90071

Telephone: 213-439-9400
Facsimile: 213-439-9599
Email: jneumann@steptoe.com
Email: Ipetrovsky@steptoe.com

STEPTOE & JOHNSON, LLP
Roger E, Warrin (pro hac vice)
James E. Rocap III (pro hac vice)
1330 Connecticut Avenue, NW
Washington, DC 20036

Telephone: — 202-429-3000
Facsimile: 202-261-0547
Email: rwarin@steptoe.com
Email: jrocap@steptoe.com

Attorneys for Defendants Lexington Insurance
Company and Indian Harbor Insurance Company

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

CLARK/HATHAWAY DINWIDDIE, A JOINT
VENTURE, individually, and for the use and
benefit of both STEADFAST INSURANCE
COMPANY and LAYNE CHRISTENSEN
COMPANY, and TRANSBAY TOWER LLC,

Plaintiffs,
vs.

ILLINOIS UNION INSURANCE COMPANY,
LEXINGTON INSURANCE COMPANY,
INDIAN HARBOR INSURANCE COMPANY,
LIBERTY SURPLUS INSURANCE
COMPANY, and TRAVELERS EXCESS AND
SURPLUS LINES COMPANY,

Defendants.

L

Case No.: CGC-16-553972

DEFENDANTS LEXINGTON
INSURANCE COMPANY AND INDIAN
HARBOR INSURANCE COMPANY’S
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
NOTICE OF MOTION AND MOTION TO
DEPOSE FOREIGN WITNESSES NICK
O'RIORDAN AND TOM CURRAN IN
LONDON

Date: September 17, 2018
Time: 10:30 a.m.

Dept.: 305

Judge: Hon. Mary E. Wiss

Complaint Filed: August 30, 2016

LEXINGTON AND INDIAN HARBOR’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF NOTICE OF MOTION AND MOTION TO DEPOSE
FOREIGN WITNESSES NICK O'RIORDAN AND TOM CURRAN IN LONDONwn

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

This case arises out of an insurance claim relating to the construction of the deep
foundation elements of a 61-story commercial building in San Francisco, California. During
the course of construction, Plaintiffs determined that there was extensive damage to some of
the foundational load bearing elements caused by intrusion of lean fill and/or native material
into the structural concrete. As a result, Plaintiffs filed an insurance claim which was
ultimately denied for a variety of reaso