The URL can be used to link to this page

Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 053 - City Mot Restrict W ExhibitIN 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 The City of Fort Collins (the “City”), by and through its undersigned counsel, respectfully submits a redacted version of Defendants Open International, LLC and Open Investments, LLC’s (collectively, “Defendants”) Motion to Compel Production of TMG Documents [Dkt. 43] and moves this Court to maintain Level 1 restriction on Exhibits 1 through 4 attached thereto [Dkt. Nos. 43-1 through 43-4] and the related portions of the Motion [Dkt. No. 43] referencing the same (collectively, the “Restricted Documents”). 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. Case 1:21-cv-02063-DDD-NYW Document 53 Filed 06/07/22 USDC Colorado Page 1 of 6 2 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 subject to a “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” designation in order to shield them from public disclosure. 2. On May 24, 2022, Defendants filed a Motion to Compel Production of TMG Documents (“Motion to Compel”) [Dkt. No. 43], with supporting exhibits, at Level 1 access. 3. Pursuant to D.C.COLO.LCivR 7.2, the City hereby moves to retain Level 1 restriction to Exhibits 1 through 4 attached to the Motion to Compel [Dkt. Nos. 43-1 through 43- 4] and further submits a proposed redacted version of the Motion to Compel [Dkt. No. 43] that removes any references to confidential material contained in Exhibits 1–4. 4. The Restricted Documents refer to and consists of confidential 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 the Restricted Documents rise to the level of protection required by the Court to restrict access to the public. 5. However, in order to comply with the parties’ Protective Order, the City requests Level 1 restriction to the Restricted Documents, limiting access to the parties and Court. Apart from compliance with the Protective Order, good cause exists to restrict public access to the Restricted Documents as the documents refer to and consist of confidential strategic and business information, as well as information that the City sought to protect by invoking the deliberate process privilege when creating it. Additionally, the City has recently clawed back documents Case 1:21-cv-02063-DDD-NYW Document 53 Filed 06/07/22 USDC Colorado Page 2 of 6 3 protected by the deliberative process privilege, including Exhibits 1 and 2. These documents appear to be among documents downloaded by Defendants on July 7, 2021, from the City’s SharePoint site, after the City had already initiated this action. 6. Specifically, Exhibits 1 and 2 [Dkt. Nos. 43-1 and 43-2] contain information concerning confidential, internal discussions related to the completion of the project, including the City’s leadership, budget, and other concerns. Exhibit 1 is an internal memorandum stamped as “Pre-decisional deliberative material subject to protection under common law governmental deliberative process privilege; C.R.S. §24-72-204(3)(a)(XIII).” See DOI v. Klamath Water Users Protective Ass'n, 121 S. Ct. 1060, 1065-66 (2001) (the deliberate process privilege protects against the disclosure of pre-decisional and deliberative documents prepared by the government, and the privilege “rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions by protecting open and frank discussions among those who make them within the Government”). It contains confidential discussions regarding risk mitigation and issues concerning the project, including detailed recommendations for moving the project forward. 7. Exhibit 2 is a draft version of the Exhibit 1 memorandum, and though it is not stamped as pre-decisional deliberative material, it is stamped as Confidential and contains substantially the same type of confidential content as Exhibit 1. These internal discussions and policy recommendations have been protected from public disclosure and would not otherwise become public. Their disclosure risks harm to the City as they contain information that was intended to remain confidential and internal to the recipients of the memoranda. Case 1:21-cv-02063-DDD-NYW Document 53 Filed 06/07/22 USDC Colorado Page 3 of 6 4 8. Exhibit 3 [Dkt. No. 43-3] is a copy of an agreement entered into between TMG and the City, containing detailed and confidential terms and a description of the scope of work. The confidentiality of this document is reinforced on page 11 which states that “TMG will sign all necessary confidentiality agreements and/or NDA’s with all parties as required to obtain CIS project related information as in Item #2.” Item #2 states that the City “will arrange and provide access to all required personnel who will participate in Information Gathering activities . . . .” 9. Exhibit 4 [Dkt. No. 43-4] is a copy of the project assessment prepared by TMG, pursuant to the Agreement, for the exclusive use of the City and Defendants and contains detailed and highly confidential summaries of interviews with personnel involved in the project that is the subject of this dispute, recommendations for the project, and descriptions of failings within the project. 10. For the aforementioned reasons, public disclosure of the Restricted Documents will irreparably harm the City. See Rickaby v. Hartford Life & Accident Ins. Co., Civil Action No. 15- cv-00813-WYD-NYW, 2016 U.S. Dist. LEXIS 53485, at *16 (D. Colo. Apr. 21, 2016) (granting motion where the public disclosure of documents would reveal confidential commercial and financial information of a party and a third party); SBM Site Servs., LLC v. Garrett, Civil Action No. 10-cv-00385-WJM-BNB, 2011 U.S. Dist. LEXIS 41527, *9 (D. Colo. Apr. 12, 2011) (granting motion to restrict “business materials containing information that may be confidential”); Markley v. United States Bank Nat'l Ass'n, Civil Action No. 19-cv-01130-RM-NYW, 2021 U.S. Dist. LEXIS 213922, at *10-12 (D. Colo. Sep. 14, 2021) (recognizing that greater protections may be afforded to the confidential information of non-parties). Case 1:21-cv-02063-DDD-NYW Document 53 Filed 06/07/22 USDC Colorado Page 4 of 6 5 11. Redaction of the supporting exhibits is not a reasonable or practical alternative because they contain extensive confidential information. However, the City submits herewith as Exhibit 1, a redacted version of the Motion to Compel. CONCLUSION Wherefore, the City respectfully requests that the Court enter the redacted Motion to Compel, attached hereto as Exhibit 1, as well as an Order granting Level 1 restricted access to the Motion to Compel’s Exhibits 1-4 [Dkt. Nos. 43-1 through 43-4] and for such further relief as this Court deems just and proper. Respectfully submitted this 7th 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 53 Filed 06/07/22 USDC Colorado Page 5 of 6 6 CERTIFICATE OF SERVICE I hereby certify that on June 7, 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/ Wynter B Wells DORSEY & WHITNEY LLP Case 1:21-cv-02063-DDD-NYW Document 53 Filed 06/07/22 USDC Colorado Page 6 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 2021-cv-02063-DDD-NYW CITY OF FORT COLLINS, Plaintiff and Counter-Defendant, vs. OPEN INTERNATIONAL, LLC, OPEN INVESTMENTS, LLC. Defendants and Counterclaimant. OPEN’S MOTION TO COMPEL PRODUCTION OF TMG DOCUMENTS Pursuant to Fed. R. Civ. P. 37(a), Defendants and Counterclaimant Open International, LLC and Open Investments, LLC (together, “Open”) move to compel the production of documents over which Plaintiff and Counter-Defendant City of Fort Collins (the “City”) have claimed categorical work-product protection and attorney-client privilege. This case centers on a complex customer-information system that the City retained Open to implement in August 2018. As the pleadings reflect, that implementation did not run smoothly, and the parties now dispute who is to blame. In 2019 and 2020, the City’s own executives and its first outside consultant Vanir blamed the City. Then, in January 2021, the City retained another consultant, TMG Consulting (“TMG”), to assess the project in coordination with City and Open personnel. TMG interviewed dozens of project participants from both sides and, in April 2021, presented a detailed report to the City and Open, recommending that the City continue working with Open. But the City balked, terminated the project a few weeks later, and then filed this suit. Case 1:21-cv-02063-DDD-NYW Document 43 Filed 05/24/22 USDC Colorado Page 1 of 15Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 1 of 15 -2- The documents at issue in this Motion are the notes, drafts, communications, and other papers related to TMG’s independent assessment and report to the parties in early 2021. TMG’s engagement for that work says nothing whatsoever about the prospect of litigation, and Open actively participated in the assessment and received TMG’s final report. There is no basis for the City to claim privilege over the information related to this highly relevant assessment. Yet the City has since attempted to wall off TMG discovery by engaging TMG as a consulting expert. The City thus contends that “any facts known to TMG and opinions held by TMG are precluded from discovery.” But a party may not block legitimate discovery related to percipient witnesses simply by engaging those witnesses as experts. If that worked, every party would retain its most damaging witnesses as consultants, which the City seems to be doing. Consistent with Fed. R. Civ. P. 37(a)(1), D.C. Colo. LCivR 7.1(a), and NYW Civ. Practice Standard 7.1 and 37.1, counsel for Open has conferred in good faith about this dispute with counsel for the City since November 2021—by letter, email, and telephone. Further, consistent with NYW Civ. Practice Standard 37.1, counsel for the parties convened a telephonic conference with Judge Wang’s clerk, who directed Open to file this Motion. For the reasons set forth below, Open respectfully requests an order compelling the City to produce documents and other information in its possession that relate to TMG’s assessment of the project between January and April 2021. FACTUAL BACKGROUND In August 2018, the City retained Open to implement a customer-information system to support billing and related services for the City’s traditional utilities business—electricity, water, Case 1:21-cv-02063-DDD-NYW Document 43 Filed 05/24/22 USDC Colorado Page 2 of 15Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 2 of 15 Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 3 of 15 Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 4 of 15 Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 5 of 15 -6- 2021 final report “for use by the City [and] Open.” Ex. 4 at 3.”3 Id. at 40-51. Id. at 50. Instead, a few weeks later, the City terminated the project without due notice or just cause. Even then, in keeping with TMG’s recommendation, Open prepared a detailed project- completion proposal for the City and agreed to shoulder all associated costs until completion, at which time Open would work with the City to decide a fair cost-allocation. Rather than respond to that proposal, the City filed this lawsuit. PROCEDURAL BACKGROUND Open has targeted TMG’s assessment since the start of discovery. By letter dated November 1, 2021, counsel for Open objected to the City’s initial disclosure that TMG’s consultants could be contacted only through the City’s litigation counsel. Ex. 6 at 1. Open explained that these individuals are not employees of the City who could fall within the City’s legal representation, and that the City was improperly hobbling Open’s investigation of the case. Id. at 2. Counsel for the City responded by letter, dated November 15, that “the work product doctrine extends to TMG for work that was at the direction and supervision of the City’s 3 TMG stated that the report was protected under Rule 408, id. at 3, but since no claims had been suggested, let alone threatened or asserted, there were no compromises to be offered or accepted under the Rule, not least by TMG. Case 1:21-cv-02063-DDD-NYW Document 43 Filed 05/24/22 USDC Colorado Page 6 of 15Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 6 of 15 -7- counsel,” that “TMG was the functional equivalent of a City employee and the attorney-client privilege applies” to TMG, and that the City “retained TMG as a consulting, non-testifying expert in this case” such that “Open may not discover facts known or opinions held by” TMG. Ex. 7 at 2 (internal quotations and alterations omitted).4 The City concluded that “any facts known to TMG and opinions held by TMG are precluded from discovery by Open.” Id. at 2. Open challenged these assertions, explaining that “whatever non-testifying expert engagement TMG may have,” it is a “percipient fact witness[] in this matter,” who “undertook an analysis of the project and delivered a report to both parties, not just to the City, and not to prepare for litigation.” Ex. 8 at 2-3. In response, the City “maintain[ed its] position stated in the November 15th correspondence.” Ex. 9 at 2. Amidst this exchange of letters, the City served responses to Open’s first requests for production on November 29, 2021. Open had requested all documents concerning TMG Consulting’s role with the Project, including the files, memoranda, reports, emails, and other documents of [consultants] Aaron McClune and Greg Galluzzi related to the project, as well as other documents concerning TMG Consulting’s assessment of and participation in the Project. Ex. 10 at 13. The City objected principally because it argued the request “seeks information subject to the attorney-client and/or work product privilege, as detailed further in the City’s November 15, 2021 correspondence.” Id. at 14. The City stated it would “withhold documents 4 The City has since stated that, after the January 2021 engagement, it executed a March 2021 statement of work with TMG. Open requested a copy of that statement of work, as well as copies of any documents reflecting an engagement of TMG for litigation purposes. To date, the City has not provided these documents, but in all events, the work conducted in connection with the January 2021 engagement and culminating in the April 2021 report was not for purposes of litigation. Case 1:21-cv-02063-DDD-NYW Document 43 Filed 05/24/22 USDC Colorado Page 7 of 15Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 7 of 15 -8- related to TMG’s work at the direction and supervision of the City’s counsel, documents protected by the attorney-client and work product privileges, and documents related to TMG’s retention as a consulting, non-testifying expert.” Id.5 On April 8, 2022, Open raised a set of discovery disputes with the City by letter, including this one, which the parties met and conferred about—by letter, email, and telephone— through May 12. The parties resolved all disputes except whether privilege or work-product protection may shield documents and information related to TMG’s January-April 2021 assessment and report. On April 27, Open served TMG with a third-party document subpoena, seeking documents related to its assessment of the project. Neither the City nor TMG timely served objections, but counsel for the City stated that it intends to assert objections or other challenges on behalf of both entities at a later date. ARGUMENT This Motion is not concerned with whatever post hac, litigation-consulting communications TMG may have had with the City, which can be logged. Rather, it seeks a categorical ruling that the documents and information related to TMG’s assessment and report, which address a critical period for the project, are not privileged. Those materials were prepared to help the project succeed, not to help the City prepare for litigation. And TMG maintained its independence throughout, so there is no basis for the City to pull TMG under its umbrella of 5 This Motion does not cover the entirety of Open’s document request. For example, the City has represented that it is producing documents related to Mr. McClune. This Motion is targeted at the narrow body of documents and information related to the January-April 2021 assessment. Case 1:21-cv-02063-DDD-NYW Document 43 Filed 05/24/22 USDC Colorado Page 8 of 15Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 8 of 15 -9- privilege. Even if some protection could apply, the City and Open participated extensively in the assessment and both received the final report, so any protections the City could claim were waived. The highly relevant documents and information related to TMG’s assessment and report are fully discoverable. I. LITIGATION WAS NOT THE REASON FOR TMG’S WORK, SO WORK- PRODUCT PROTECTION DOES NOT APPLY. “[T]he work product doctrine is intended only to guard against divulging the attorney’s strategies and legal impression.” Resolution Tr. Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995). As a result, documents prepared in the ordinary course of business are not subject to work-product protection, which attaches only if “documents would not have been created but for the prospect of litigation.” L-3 Commc’ns Corp. v. Jaxon Eng’g & Maint., Inc., 2014 U.S. Dist. LEXIS 103157, at *16 (D. Colo. Jul. 29, 2014) (emphasis added). “[B]ecause litigation is an ever-present possibility in American life, it is more often the case than not that events are documented with the general possibility of litigation in mind.” Smith v. Marten Transp., Ltd., 2010 U.S. Dist. LEXIS 138107, at *5-6 (D. Colo. Dec. 17, 2010). Consequently, the mere possibility of litigation—even if litigation eventually ensues—“does not, by itself, cloak materials with work product immunity.” Id. at *6. Rather, “the central inquiry in resolving work product questions” is “whether anticipated litigation is the driving force behind the preparation of each requested document.” McCall v. Skyland Grain, LLC, 2009 U.S. Dist. LEXIS 41034, at *17 (D. Colo. Apr. 29, 2009) (emphasis added). Litigation was not the but-for cause nor the driving force behind TMG’s assessment and report. The engagement agreement never mentions or intimates pending disputes, let alone legal action to resolve them. Case 1:21-cv-02063-DDD-NYW Document 43 Filed 05/24/22 USDC Colorado Page 9 of 15Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 9 of 15 -10- Ex. 2 at 3. Three months later, when TMG’s report issued, it focused on project problems, solutions, and proposals—i.e., the ordinary course of business for a software-implementation consultant like TMG—not on litigation or threatened claims. The City appears to have scrambled to engage TMG as a consulting expert in an effort to shroud TMG’s documents and testimony in work product protection. Ex. 7 at 2. But protections for experts do not apply to the expert’s participation “as an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.” Fed. R. Civ. P. 26(b)(4) advisory committee’s note to 1970 amendments; see also, e.g., Dayton-Phoenix Grp., Inc. v. GMC, 1997 U.S. Dist. LEXIS 24281, *2 (S.D. Ohio Feb. 19, 1997) (“Courts have routinely allowed one party to depose experts who ‘were actors or viewers of the occurrences which gave rise to suit.’” (internal quotations and citation omitted)). TMG was engaged to assess and report on the project to help it succeed—not to help the City prepare for litigation. Even if TMG was subsequently engaged for other purposes, including in connection with litigation, that is beside the point for this Motion. TMG’s assessment of the project is part of the events at issue in this case and was not principally motivated by litigation, so the work product doctrine does not apply to documents and information related to that assessment. II. TMG WAS INDEPENDENT OF THE CITY, SO TMG WAS NOT COVERED BY THE CITY’S PRIVILEGE, AND NO LOG IS NEEDED TO DISCERN THAT. “The attorney-client privilege is established by the act of a client seeking professional advice from a lawyer and extends only to confidential matters communicated by or to the client Case 1:21-cv-02063-DDD-NYW Document 43 Filed 05/24/22 USDC Colorado Page 10 of 15Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 10 of 15 -11- in the course of gaining counsel, advice, or direction with respect to the client’s rights or obligations.” Curtis Park Grp., LLC v. Allied World Specialty Ins. Co., 2021 U.S. Dist. LEXIS 49917, at *12 (D. Colo. 2021). At the time of the assessment and report, neither TMG nor its consultants were attorneys, and they were not clients of the City’s litigation counsel or of the City’s in-house counsel. As TMG stated, it was an “independent,” third-party consultant, Ex. 4 at 5, and its assessment and report were not private but broadly included Open. Even so, the City contends that TMG was the functional equivalent of a City employee and shielded by the same privilege that covers City employees and their lawyers. This exception does not apply, though, unless litigation and claims were the “entire reason and justification” for a consultant’s interaction with a party and its lawyers, which was not the case for TMG. Am. Ins. Co. v. Pine Terrace Homeowners Ass’n, 2021 U.S. dist. LEXIS 97203, at *9-10 (D. Colo. May 21, 2021). Where, as here, the consultant is engaged well before litigation to assist in non-legal projects, with no mention of litigation or lawyer involvement, functional equivalent privilege does not extend to the consultant. Id. at *11-14. The District of Colorado recognized the functional equivalent doctrine in Horton v. United States, 204 F.R.D. 670, 672 (D. Colo. 2002), and held that the party asserting the privilege must make a detailed factual showing that the non-employee is the functional equivalent of an employee and that the information sought [by the party’s lawyer] from the non-employee would be subject to the attorney-client privilege if he were an employee of the party. In Horton, even though the party had appointed the non-employee as its property manager and produced a letter stating that the non-employee and her company “have been, and are, the owner’s agent for handling the Lawsuit,” the Court was unpersuaded and required a privilege log. Id. at 672-73. That additional level of scrutiny is not necessary here. First, the City cannot Case 1:21-cv-02063-DDD-NYW Document 43 Filed 05/24/22 USDC Colorado Page 11 of 15Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 11 of 15 -12- make even the meager showing that the Court rejected in Horton. There is no basis in the record to show that TMG was functioning as a City employee of any kind—let alone one integrally related to litigation—when it was engaged to conduct an “independent” assessment of the project. Second, TMG was not in a reasonable position to seek or receive legal advice from the City’s lawyers as a hired consultant reporting to both parties. Even if TMG could have had legal communications with the City’s lawyers, the information Open seeks in this Motion—documents and other factual information about the assessment and report—do not constitute legal advice or direction and therefore would not be subject to privilege even if TMG were a City employee. Privilege logs allow parties to assess an invocation of privilege with context, but all the necessary context is before the Court in the form of the TMG engagement agreement and its eventual report. A log is not only unnecessary; it also would be inefficient and costly to produce and review. Moreover, waiting on a privilege log before resolving this issue will hamper third- party discovery from TMG, whereas a categorical ruling here will resolve several simmering disputes and inform the parties with respect to the City’s privilege assertions over other communications with third parties. See, e.g., Ex. 7 at 3 (asserting functional equivalent privilege over Vanir). III. TMG COLLABORATED WITH AND REPORTED TO OPEN, SO ANY PROTECTIONS OVER ITS WORK HAVE BEEN WAIVED. Even if privilege or work product protections could apply, the City waived them by including Open broadly in the assessment and permitting TMG to deliver its ultimate report to Open. “The work-product privilege may be waived by the voluntary release of materials otherwise protected by it.” Grace Utd. Methodist Church v. Cheyenne, 451 F.3d 643, 668 (10th Cir. 2006). Likewise, because confidentiality is key to the attorney-client privilege, “[t]he Case 1:21-cv-02063-DDD-NYW Document 43 Filed 05/24/22 USDC Colorado Page 12 of 15Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 12 of 15 -13- attorney-client privilege is lost if the client discloses the substance of an otherwise privileged communication to a third party.” United States v. Ryans, 903 F.2d 731, 741 n.13 (10th Cir. 1990). Neither doctrine may be used “as both a sword and a shield” to justify withholding some privileged information while disclosing other privileged information—“the opposing party is entitled to examine the whole picture.” Chevron Corp. v. Stratus Consulting, Inc., 2010 U.S. Dist. LEXIS 110023, at *31 (D. Colo. Oct. 1, 2010) (rejecting privilege and work product arguments and concluding that protections would have been waived anyway). Open received the ultimate report that TMG prepared. If the TMG report had been prepared in anticipation of litigation, then the City waived that privilege by making its adversary Open a part of the assessment process and a recipient of the report. The City cannot selectively waive privilege over the assessment and final report and assert privilege over parts of the process and materials that went into the report. CONCLUSION Open does not contend that every TMG document in the City’s possession must be produced without a privilege log. This Motion seeks narrower relief. Open seeks the notes, drafts, communications, and other papers related to TMG’s assessment and report to the parties from between January and April 2021. These materials are necessary to determine what happened in the final year of the project and which party shoulders the blame for the project’s problems. Privilege and work product protections are “exceptions to the demand for every man’s evidence [and] are not lightly created nor expansively construed, for they are in derogation of the search for truth.” United States v. Nixon, 418 U.S. 683, 710 (1974). The record shows that, throughout the first two years of the project, the City and its consultants Case 1:21-cv-02063-DDD-NYW Document 43 Filed 05/24/22 USDC Colorado Page 13 of 15Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 13 of 15 -14- believed the City shouldered the blame for problems. In the final year of the project, TMG undertook an independent, three-month assessment and issued a report recommending that the City continue working with Open. The City may well want to hide the full substance behind that recommendation, but based on the record, TMG was not functioning as an agent of the City for purposes of litigation, and even if it was, the City waived any associated protections by giving Open access to the assessment and the final report. To ensure that the parties and the finder of fact can ascertain the truth, the Court should categorically reject ill-fitted privilege arguments and demand the City’s evidence related to the TMG assessment and report from January through April 2021. Dated: May 24, 2022 Respectfully submitted, s/ Paul D. Swanson Paul D. Swanson, pdswanson@hollandhart.com Anna van de Stouwe, acvandestouwe@hollandhart.com Holland & Hart LLP 555 17th Street, Suite 3200 Denver, Colorado 80202 Telephone: 303-295-8000 Attorney for Plaintiff Arrow Electronics, Inc. CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing pleading complies with the type-volume limitations set forth in Judge Domenico’s Practice Standard III(A)(1). This brief contains 3,929 words. s/ Paul D. Swanson Case 1:21-cv-02063-DDD-NYW Document 43 Filed 05/24/22 USDC Colorado Page 14 of 15Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 14 of 15 -15- CERTIFICATE OF SERVICE I hereby certify that on the 24th day of May, 2022, the foregoing was electronically filed with the Clerk of Court using the Court’s electronic filing system and that a copy of the foregoing was sent to all counsel of record via same in compliance with the Federal Rules of Civil Procedure and the Local Rules of this Court. s/ Paul D. Swanson Case 1:21-cv-02063-DDD-NYW Document 43 Filed 05/24/22 USDC Colorado Page 15 of 15Case 1:21-cv-02063-DDD-NYW Document 53-1 Filed 06/07/22 USDC Colorado Page 15 of 15