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Confidentiality agreement governs aspects of Port of Anchorage lawsuit

Lisa Demer

The public will never see some elements of the legal fight over who is to blame for the troubled Port of Anchorage makeover. A confidentiality agreement between the lawyers was filed in federal court this week, shielding a range of documents and even some testimony from public view.

Lawyers involved say key information will be presented in the open and that such agreements are standard in lawsuits involving corporations.

The Municipality of Anchorage last year sued the project manager, Integrated Concepts and Research Corp.; the lead engineering company, PND Engineers Inc.; and engineering consultant CH2M Hill Alaska Inc., blaming them for expensive and complex problems with the port expansion. Construction essentially halted after the 2009 construction season and the port project remains unfinished. A trial is set for October 2015.

The agreement filed Tuesday in U.S. District Court in Anchorage addresses how the lawyers should handle documents or other information containing what they determine to be confidential or sensitive information.

The list of what is covered includes "trade secrets, research, design, development, financial, technical, marketing, planning, personal, or commercial information," under the agreement. But the material could go beyond that.

Documents will be stamped "confidential" or "confidential and protected." Lawyers also can designate testimony of witnesses in pretrial proceedings as confidential, and trial witnesses also will have to follow the terms of confidentiality, the agreement says.

The information can only be shared with a narrow group that includes U.S. District Judge Sharon Gleason, the lawyers, and outside experts and consultants, who then must agree in writing to follow the confidentiality agreement.

"All Qualified Persons who have received Confidential Information pursuant hereto shall safeguard such information so as to prevent its disclosure to persons who are not Qualified Persons entitled to see such Confidential Information," the agreement says.

PND's patented Open Cell Sheet Pile design called for steel lengths to interlock into U-shaped cells that would form the dock face, then be backfilled with gravel and sand to create new land. But the steel twisted and bent during installation.

Bob Shavelson, head of the environmental group Cook Inletkeeper, said a court case involving such a big public project should be fully in the open.

"When you are dealing with such large amounts of public money, the presumption has to be on transparency," Shavelson said Thursday. "The public has a right to know how the public dollars are spent, and you can't allow lawyers to hide things behind closed doors."

Most of the goods sold in Alaska come through the Port of Anchorage. The old, traditional dock on pilings needs frequent repairs and is due for replacement, city officials said.

The cost of the port project, intended to add shipping berths and replace corroding support piles with PND's system, escalated from $211 million to $1 billion between 2003 and 2011. So far the city has spent more than $300 million, but some of that work will need to be redone.

The lead lawyer for PND said information on what went wrong and who is to blame will come out publicly in the court case.

"That is something that PND embraces and has a strong vested interest in making sure that the public finds out exactly what went wrong, because we have full belief in the truth," said Lisa Marchese, a Seattle-based lawyer with Dorsey and Whitney.

PND says its interlocking sheet pile system has been used successfully across Alaska and around the world. It wants the story told, she said Thursday.

Email chains or memos discussing the problems, for instance, would be public, she said. But documents such as client lists, internal marketing strategies and technical engineering calculations that would allow a competitor to copy PND's design would be confidential.

"All of us have an obligation to make sure that we don't abuse the authority we have to protect certain information," Marchese said. "There is really a limited window of documents that could come within a confidential designation."

She anticipates the case going to trial. PND doesn't want to settle or compromise, she said.

"We really want the opportunity for a full public airing," she said.

A federally commissioned review in 2012 found that the problems went beyond flawed construction to the very design. But PND sharply disputes that.

Municipal Attorney Dennis Wheeler said public documents filed in the court case would remain public.

"The other parties can choose to make public their own confidential documents, but we can't publicly share those documents without advance notice to them and either their written permission or a court order," Wheeler said in an email Thursday.

Consider a case of a person injured in an accident who blames the municipality and wants the city to cover medical bills.

The municipality has the right to review those medical bills, treatment records and doctor's notes to evaluate whether the injuries came from the accident at issue , but the records don't then become public, Wheeler said.

"By entering into an agreement up front, the parties don't have to fight over the confidential status of each and every document," he wrote. "It is a huge time- and cost-saver."

Under the agreement, if any of those involved in the lawsuit object to certain information being labeled "confidential" and the parties can't work it out, Gleason will review the matter.

The court proceedings remain open, so the public will stay informed, Wheeler said.

Reach Lisa Demer at ldemer@adn.com or 257-4390.


By LISA DEMER
ldemer@adn.com
Contact Lisa Demer at LDemer@adn.com or on