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HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 050 - City Mot Restrict And Resp To Order1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 21-cv-02063-DDD-NYW CITY OF FORT COLLINS, Plaintiff/Counterclaim Defendant, v. OPEN INTERNATIONAL, LLC Defendant/Counterclaim Plaintiff, and OPEN INVESTMENTS, LLC, Defendant. PLAINTIFF CITY OF FORT COLLINS’S MOTION TO RESTRICT ACCESS AND RESPONSE TO THE JUNE 2, 2022 ORDER TO SHOW CAUSE Plaintiff City of Fort Collins (“the City”), by and through its undersigned counsel, respectfully moves this Court to restrict to Level 1 access Exhibit D filed in support of the City’s Motion to Quash Defendants’ Subpoena on Vanir Constriction Management, Inc. and for Protective Order (“Motion”) [Dkt. 45-4]. CERTIFICATION PURSUANT TO D.C.COLO.L.CivR 7.1 Undersigned counsel conferred via email with counsel for Defendants. Defendants oppose the relief requested herein. ARGUMENT 1. This Court entered the parties’ Stipulated Protective Order on October 14, 2021. Dkt. 32. This Order provides that information related to the parties’ alleged business are either Case 1:21-cv-02063-DDD-NYW Document 50 Filed 06/06/22 USDC Colorado Page 1 of 4 2 subject to a “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” designation in order to shield them from public disclosure. 2. On May 27, 2022, the City filed its Motion with supporting exhibits at Level 2 restricted access. The City intended to file the Motion and supporting exhibits under Level 1 access and attempted to correct this inadvertence promptly (after the holiday weekend) on Tuesday May 31, 2022 and Wednesday June 1, 2022. However, during that time, the Motion was referred to Magistrate Judge Wang along with the Court’s Show Cause Order [Dkt. 48] and the Court could no longer lower the restriction. 3. The City provided copies of the Motion and supporting exhibits to Defendants on May 27 to avoid any prejudice. 4. Pursuant to D.C.COLO.LCivR 7.2, the City hereby moves to retain a Level 1 restriction to Exhibit D of its Motion, specifically Docket 45-4 and titled “Project Management Plan for the City of Fort Collins Oasis Project”. 5. This document refers to and consists of confidential and proprietary information, including those that the City considers as “Confidential”. Defendants have not challenged the City’s designation of confidentiality. Nevertheless, they contend that they do not believe Exhibit D rises to the level of protection required by the Court to restrict access to the public. 6. However, in order to comply with the parties’ Protective Order, the City requests Level 1 restriction to Exhibit D, limiting access to the parties and Court. Apart from compliance with the Protective Order, good cause exists to restrict public access to Exhibit D as it contains information that, if disclosed publicly, would violate the City’s engagement with a third-party, Vanir Construction Management, Inc. (“Vanir”), as well as release of confidential and proprietary Case 1:21-cv-02063-DDD-NYW Document 50 Filed 06/06/22 USDC Colorado Page 2 of 4 3 information. This is reinforced on page 5 of Exhibit D, which states that Vanir’s contract with the City is subject to “an NDA that limits the discussion of this project and the proprietary nature of the OSF platform outside of Vanir project and management team members.” Further, Exhibit D is a type of project documents that is not currently available on the internet. See Brill v. Correct Care Sols., LLC, No. 16-cv-03078-WMJ-NYW, 2018 U.S. Dist. LEXIS 240409 (D. Colo. Mar. 5, 2018) (granting motion to restrict certain exhibits). 7. Redaction of the exhibit is not a reasonable or practical alternative because it contains confidential information. However, the City does not seek to retain any level of restricted access to the Motion itself or the remaining exhibits. CONCLUSION Wherefore, the City respectfully requests that this Court enter an Order granting Level 1 restricted access to the City’s Exhibit D to its Motion [Dkt. 45-4], and for such further relief as this Court deems just and proper. Respectfully submitted this 6th day of June, 2022. DORSEY & WHITNEY LLP s/ Maral J. Shoaei Case Collard Andrea Ahn Wechter Maral J. Shoaei 1400 Wewatta Street, Suite 400 Denver, Colorado 80202-5549 Telephone: (303) 629-3400 Fax: (303) 629-3450 E-mail: collard.case@dorsey.com E-mail: wechter.andrea@dorsey.com E-mail: shoaei.maral@dorsey.com Attorneys for Plaintiff City of Fort Collins Case 1:21-cv-02063-DDD-NYW Document 50 Filed 06/06/22 USDC Colorado Page 3 of 4 4 CERTIFICATE OF SERVICE I hereby certify that on June 6, 2022, I caused the foregoing document to be electronically served via CM/ECF system which will send notification of such filing to the following: Alexander D. White Paul D. Swanson Hannah E. Armentrout Anna Matejcek HOLLAND & HART LLP 555 17th Street, Suite 3200 Denver, CO 80202 Telephone: (303) 295-8578 adwhite@hollandhart.com pdswanson@hollandhart.com hearmentrout@hollandhart.com amatejcek@hollandhart.com Attorneys for Defendants /s/ Stacy Starr Dorsey & Whitney LLP Case 1:21-cv-02063-DDD-NYW Document 50 Filed 06/06/22 USDC Colorado Page 4 of 4