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Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 062 - City Reply Re 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 REPLY IN SUPPORT OF MOTION TO RESTRICT ACCESS [DKT. 53] TO PORTIONS OF DEFENDANTS’ MOTION TO COMPEL PRODUCTION OF TMG DOCUMENTS [DKT. 43] AND EXHIBITS 1 THROUGH 4 [DKT. 43-1 THROUGH 43-4] THERETO The City of Fort Collins (the “City”), by and through its undersigned counsel, respectfully submits its Reply in Support of its Motion to Restrict [Dkt. 53]1 seeking to restrict Defendants’ (“Open”) Motion to Compel Production of TMG Documents [Dkt. 43] by maintaining 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, a redacted version of which was submitted with the City’s Motion to Restrict [Dkt. 53-1]. 1 Open filed a combined Response in Opposition to the City’s Motions to Restrict [Dkts. 50 & 53]. Pursuant to this Court’s Minute Order on June 7, 2022 [Dkt. 52], no reply is permitted with respect to Dkt. 50. Thus, this Reply only pertains to Dkt. 53. Case 1:21-cv-02063-DDD-NYW Document 62 Filed 06/17/22 USDC Colorado Page 1 of 10 2 ARGUMENT A. Open’s Ongoing Attempts to “Publicize” Copies of Exhibits 1 and 2 [Dkts. 43-1 and 43-2] to Open’s Motion to Compel TMG Documents Raise Significant Concerns And Requires a Complete Understanding of How Open First Improperly Obtained Them. There has been no “systematic effort to suppress highly relevant documents” by the City as Open argues. Rather, the City has undertaken systematic effort to maintain privilege— particularly the deliberative process privilege—in the face of a relentless pursuit of privileged documents by a formerly trusted partner who just this week admitted to improperly taking documents after it was already terminated and with full notice of the action filed against it. On its Motion to Compel the Production of TMG Documents [Dkt. 43] purporting to seek a categorical ruling that none of the TMG-related documents the City had could be protected by any privilege, Open was able to describe in detail and attach two privileged memoranda (collectively, the “Frey Memoranda,” [Dkt. 43-1 & 43-2]) drafted by Michelle Frey of Vanir Construction Management, Inc. (a completely different and unrelated company from TMG), who had been hired by the City as its project manager, months before TMG ever came into the picture. The City has since learned that Open only has copies of these documents because Open improperly downloaded the City’s files after being terminated. While purportedly included as “background” for the motion, these documents have no bearing on any privilege issues concerning TMG documents, the assessment and work done by TMG, or the City’s anticipation of litigation with respect to its retention of TMG. Not surprisingly, there is no reference to either of the Frey Memoranda exhibits 2 or “Vanir” anywhere in the “argument” section of the motion 2 The Motion to Compel purports to cite “Ex. 2” again on page 10 but it is a typo as the language cited is from Ex. 3. Case 1:21-cv-02063-DDD-NYW Document 62 Filed 06/17/22 USDC Colorado Page 2 of 10 3 after the ill-fitting inclusion into the “background.” The Frey Memoranda are simply not necessary for this Court’s consideration or ruling on the TMG documents. Open’s attachment of the Frey Memoranda, and its current fight to remove the Level 1 restriction for them, is part of Open’s systemic effort to publicize the City’s privileged documents which it wrongly took. In repeatedly asserting that the Frey Memoranda were obtained by Open “outside this litigation” (Dkt. 57 at 1, 5), Open fails to disclose the specifics of how it improperly obtained them. For that, the following background is necessary. In 2018, the City hired Open to provide services under a Master Professional Services Agreement, dated August 9, 2018 (“MPSA,” CITE). Exhibit D to the MPSA set forth the terms of Confidentiality between the Parties, with Section 3 providing: “Receiving Party hereby agrees that it shall use the Confidential Information solely for the purpose of performing its obligations under this Agreement and not in any way detrimental to Disclosing Party.” MPSA, [Dkt. 6] at 111, §3. On May 28, 2021, the City sent its termination notice to Open and subsequently terminated and rescinded the MPSA. Pursuant to Section 13.7 of the MPSA, “[n]o later than ten (10) days after the date of termination . . . for any reason whatsoever, each party will securely destroy all copies of Confidential Information to the other party in its possession except for any copies kept in an automated backup or archival system…” MPSA, [Dkt. 6] at 36, § 13.7. On July 2, 2021, the City filed its Complaint against Open and sent a copy of the filings to Open’s President, Hernando Parrott. Just five days later, Jairo Contreras of Open improperly accessed, downloaded, and took the Frey Memoranda and numerous additional City memoranda by Vanir individuals, without any authorization under the terminated MPSA and with full knowledge of the litigation initiated against Open. See June 17, 2022 Declaration of Brian Wasko at ¶ 3; see also June 14, 2022 Case 1:21-cv-02063-DDD-NYW Document 62 Filed 06/17/22 USDC Colorado Page 3 of 10 4 Declaration of Hernando Parrott, [Dkt. 57-1] ¶¶ 7-8. While Open just this week asserted that this was for “preservation” purposes, the MPSA made clear that: 1) Open only had authority to access Confidential Information during the relationship under the MPSA (which had been terminated), 2) Confidential Information could only be used for the sole purpose of performing under the MPSA (and of course no business purpose existed following termination), and 3) Open was required to destroy the City’s Confidential Information (which of course the City would preserve) upon termination of the MPSA. Not only did Mr. Contreras grab and download all of these files after Open was already “out the door,” but just hours after doing so, Mr. Contreras contacted the City (via TMG—the functional equivalent of a City employee) under the guise of providing the City courtesy notice of the City’s need to restrict Open’s access and revoke Open’s credentials to the City’s platforms “[a]s per Fort Collin[s]’s decision to rescind the agreements with Open in their entirety.” July 7, 2021 Email from Jairo Contreras, Ex. 1 at 1-2 (emphasis added). Since this improper download and taking of the City’s privileged and confidential documents, Open has repeatedly attempted to “publicize” the two Frey Memoranda and other related memoranda: (1) serving a subpoena on Vanir (and refusing to allow the City to do a fulsome privilege review, necessitating a motion to quash [Dkt. 45]); (2) repeatedly demanding (via emails and letters) that the City simply waive all confidentiality protections under both the MPSA and the Court’s October 14, 2021 Stipulated Protective Order for these memoranda (as one example, see May 16th demand, Ex. 2 at 1 (“unless . . . the City will agree to waive confidentiality over [seventeen produced documents]”)); (3) seeking to obtain “public versions” Case 1:21-cv-02063-DDD-NYW Document 62 Filed 06/17/22 USDC Colorado Page 4 of 10 5 of the documents—i.e. the exact same copies of the improperly obtained documents—through an attempted CORA request (based on the City’s repeated refusals to waive protections) while refusing to tell the City’s counsel why or how Open intended to “publicize” these documents outside of the litigation; (4) refusing to return or destroy the improperly obtained documents in response to the City’s clawback notice (see June 6, 2022 clawback notice, Ex. 3; Open’s response, Ex. 4); and, (5) now attaching the improperly obtained documents to an unrelated motion and seeking to publicize the same by fighting the Level 1 restriction requested by the City. The City was unaware of Open’s improper taking until recently, which was only confirmed by Open with Mr. Parrott’s June 14th declaration attached to the response to the City’s Motion to Restrict. It is now clear that Open is trying to “publicize” and use the improperly taken Frey Memoranda in every way possible. This Court should not grant public access to Dkt. 43-1 and 43-2 under the circumstances, especially as exhibits that have absolutely no bearing to the actual underlying motion seeking to compel production of TMG documents and this Court is unlikely to rely on either Dkt. 43-1 or 43-2 in determining whether TMG (i.e. not Vanir) documents are protected under certain privileges. Contra Colo. Access v. Atl. Specialty Ins. Co., 2022 U.S. Dist. LEXIS 76794, at *5-6 (D. Colo. Apr. 22, 2022). Aside from the deliberative process privilege and the Stipulated Protective Order, the Frey Memoranda were protected under the confidentiality provisions of the MPSA and any copies Open had (since Open took them post-termination, it presumably did not already have copies) were to have been destroyed by Open upon the City’s termination of the MPSA, and should never have been downloaded following Open’s termination and the City’s filing of the suit against it. Indeed, the Case 1:21-cv-02063-DDD-NYW Document 62 Filed 06/17/22 USDC Colorado Page 5 of 10 6 MPSA confidentiality provision makes clear that, confidential information under the agreement were to be used “solely for the purpose of [Open] performing its obligations under the Agreement and not in any way detrimental to [the City].” MPSA, [Dkt. 6] at 111, §3. That would exclude drafting a counterclaim or seeking other unauthorized public disclosure. Notwithstanding all of the above, the City already made its good cause showing based on the deliberative process privilege—a privilege expressly stamped on the Frey memoranda attached as Dkt. 43-1 3 and applicable to the draft memoranda attached as Dkt. 43-2. The deliberative process privilege derives from the work product doctrine and protects documents or testimony that are deliberative and pre-decisional in nature. SEC v. Nacchio, 2009 U.S. Dist. LEXIS 8365, at *9-12 (D. Colo. Jan. 29, 2009), aff’d, 704 F. Supp.2d 1099 (D. Colo. 2010). “The deliberative process privilege seeks to (1) encourage open, frank discussions on matters of policy between agency subordinates and superiors; (2) protect against premature disclosure of proposed policies; and (3) protect against public confusion from disclosure of reasons and rationale that were not in fact ultimately the grounds for an agency’s actions.” Id. at *18-19; see also City of Colorado Springs v. White, 967 P.2d 1042, 1050 (Colo. 1998) (recognizing the privilege as part of Colorado common law). As set forth in the City’s Motion to Restrict, a review of both Dkt. 43-1 and 43-2 readily reveals internal, confidential, and frank discussions to support the deliberative process concerning the completion of the project, including the City’s leadership, budget, and other concerns. Despite Open’s assertion that the City would not be harmed, the harm is the underlying purpose of and rationale for the existence of the 3 Dkt. 43-1 includes the stamp “Pre-decisional deliberative material subject to protection under common law governmental deliberative process privilege; C.R.S. §24-72-204(3)(a)(XIII).” Case 1:21-cv-02063-DDD-NYW Document 62 Filed 06/17/22 USDC Colorado Page 6 of 10 7 deliberative process privilege—i.e. protect against disclosure of pre-decisional and deliberative documents prepared by the government and 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.”4 DOI v. Klamath Water Users Protective Ass'n, 121 S. Ct. 1060, 1065-66 (2001) (emphasis added). Open misses the point by asserting the documents are “two-year-old memoranda criticizing a project that has since been abandoned” (Dkt. 57 at 6); but these consist of pre- decisional deliberations—i.e. frank discussions regarding risk mitigation and issues concerning the project (including detailed recommendations) that were done prior to a decision by the City. It does not matter that time has since passed (and no duration exception exists to the deliberative process privilege)—disclosure will harm the very purpose of the deliberative process privilege. In fact, Open’s acknowledgment that these are “old” memoranda about a long “abandoned” project supports the fact that these are not of public interest. But restrictions of these are of significance as to both the separate privilege dispute that will be forthcoming based on Open’s recent admissions and the deliberative process privilege. The entire memoranda [Dkt. 43-1] and 4 Open’s assertion that the privilege would not apply to Vanir (a functional equivalent of a City employee) is not a determination that should be made via this motion to restrict. Neither is the determination of whether the deliberative process privilege is purportedly “waived” based on the improper and unauthorized taking of City government documents by the City’s litigation opponent, Open, after termination and days after the City filed its complaint. In any event, Open was not an “unnecessary third part[y]” as it asserts (Mot. at 5) at the time when it had any valid access to the City’s platforms; rather, prior to the termination and taking, Open was purportedly operating under the confidentiality requirements of the MPSA noted above as the City’s trusted partner for the project. The cases cited by Open are of no relevance. Case 1:21-cv-02063-DDD-NYW Document 62 Filed 06/17/22 USDC Colorado Page 7 of 10 8 the draft memoranda concerning those items [Dkt. 43-2] cannot be protected by redaction or otherwise. B. Exhibits 3 and 4 [Dkts. 43-3 and 43-4] Include a Draft Agreement and Report Provided Under Rule 408 Settlement Discussions. The TMG agreement [Dkt. 43-3] at issue is a draft agreement (unsigned by the City and dated prior to when the City actually executed it) and contains confidential terms and descriptions of TMG’s work. Likewise, the report [Dkt. 43-4] is a 52-page copy of TMG’s assessment that was expressly provided “for use by [the Parties] to amicably resolve through negotiation their differences under their contract as contemplated in Rule 408 of the Colorado Rules of Evidence.” [Dkt. 43-4] at 2 (“Confidentiality” box). The City should not be harmed by publicizing confidential settlement discussions outside of this litigation. Respectfully submitted this 17th day of June, 2022. DORSEY & WHITNEY LLP s/ Andrea Ahn Wechter 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 62 Filed 06/17/22 USDC Colorado Page 8 of 10 9 CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing pleading complies with the type-volume limitations set forth in Judge Daniel D. Domenico’s Practice Standard III(A)(1) and contains 2,188 words. s/ Andrea Ahn Wechter Case 1:21-cv-02063-DDD-NYW Document 62 Filed 06/17/22 USDC Colorado Page 9 of 10 10 CERTIFICATE OF SERVICE I hereby certify that on June 17, 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 C. Van de Stouwe HOLLAND & HART LLP 555 17th Street, Suite 3200 Denver, CO 80202 Telephone: (303) 295-8578 adwhite@hollandhart.com pdswanson@hollandhart.com hearmentrout@hollandhart.com acvandestouwe@hollandhart.com Attorneys for Defendants s/ Wynter Wells Dorsey & Whitney LLP Case 1:21-cv-02063-DDD-NYW Document 62 Filed 06/17/22 USDC Colorado Page 10 of 10 Exhibit 1 Case 1:21-cv-02063-DDD-NYW Document 62-1 Filed 06/17/22 USDC Colorado Page 1 of 3 [EXTERNAL] FW: Request to revoke access to FC platforms/accounts From:Aaron McClune <aaron.mcclune@tmgconsulting.com> To:Mary Evans <mevans@fcgov.com>, David Mullaney <dmullaney@fcgov.com>, Coy Althoff <calthoff@fcgov.com>, Kevin Wilkins <kwilkins@fcgov.com>, Jason Harder <jharder@fcgov.com> Cc:Colman Keane <ckeane@fcgov.com>, Travis Storin <tstorin@fcgov.com>, Theresa Connor <tconnor@fcgov.com>, John Duval <jduval@fcgov.com>, Kelly DiMartino <kdimartino@fcgov.com>, Gretchen Stanford <gstanford@fcgov.com>, Gerry S. Paul <gspaul@fcgov.com>, Michelle Martens <mmartens@fcgov.com> Date:Wed, 07 Jul 2021 19:06:49 +0000 All, Jairo just sent me this request. I am passing it along to IT to handle and including the executive team for awareness. Do we need to have a discussion on this or just have the work completed and respond when it is done? Thank you, Aaron McClune 907.223.0958 Consultant TMG Consulting | Twitter | LinkedIn From: Jairo A. Contreras B. <Jairo.Contreras@openintl.com> Sent: Wednesday, July 7, 2021 12:04 PM To: Aaron McClune <aaron.mcclune@tmgconsulting.com> Subject: Request to revoke access to FC platforms/accounts Hi Aaron, As per Fort Collin’s decision to rescind the agreements with Open in their entirety, please revoke all the credentials that Fort Collins has given to Open staff, not only to accessing Open Smartflex databases but also permissions to any other FC's platform. It includes, but is not limited to: •Open's users in the Active Directory: VPN, EXADATA, Databases, Windows dashboard permissions Case 1:21-cv-02063-DDD-NYW Document 62-1 Filed 06/17/22 USDC Colorado Page 2 of 3 •Open's users in all the AppServers (Included in Tomcat, Karaf, and others) •Root users •Open's users in FC's Oracle support account •Sharepoint sites •Any other VPN accesses •Open's users in any Open Smartflex database •Any other access to any platform/system of Fort Collins Please confirm when all credentials have been revoked. Thank you. Regards, JAIRO CONTRERAS B. PMO LEADER m. +57-318-589-4846 | t. +57-2-331-9999 Ext. 215 www.openintl.com Case 1:21-cv-02063-DDD-NYW Document 62-1 Filed 06/17/22 USDC Colorado Page 3 of 3 Exhibit 2 Case 1:21-cv-02063-DDD-NYW Document 62-2 Filed 06/17/22 USDC Colorado Page 1 of 4 1 Wells, Wynter From:Alex D. White <ADWhite@hollandhart.com> Sent:Monday, May 16, 2022 9:04 PM To:Wechter, Andrea; Collard, Case; Shoaei, Maral Cc:Paul D. Swanson; Anna C. van de Stouwe Subject:Ft. Collins v. Open - Public records request Attachments:Open CORA Requests to Fort Collins - 05.16.2022.pdf EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS. Hi Andrea, Case, and Maral: We’re reaching out about the attached CORA request letter. We are planning to file this request through the City’s CORA portal by this Thursday, unless either (1) the City will agree to waive confidentiality over certain specified documents covered by the request (see Bates numbers below); or (2) your firm would prefer to be the conduit for this request, instead of us submitting it to the City’s CORA portal directly. 1. CFC_048449–048452 2. CFC_049536_049541 3. CFC_051888–051892 4. Open_Intl_00034551–00034555 5. CFC_052567–052568 6. Open_Intl_00034504–00034505 7. CFC_011766–011776 8. CFC_014220–014272 9. CFC_052417–052418 10. Open_Intl_00034496–00034497 11. Open_Intl_00034506–00034507 12. Open_Intl_00034498–00034501 13. Open_Intl_00034563–00034564 14. CFC_060639–060642 15. CFC_052304–052309 16. CFC_062189–062190 17. CFC_049891–049892 Please let us know by Thursday morning. Thanks, Alex Alex White Associate, Holland & Hart LLP 555 17th Street, Suite 3200, Denver, CO 80202 T 303.295.8517 F 303.296.4188 M 303.881.0402 CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this e-mail. Case 1:21-cv-02063-DDD-NYW Document 62-2 Filed 06/17/22 USDC Colorado Page 2 of 4 Alexander D. White Phone 303.295.8517 adwhite@hollandhart.com T 303.295.8000 F 303.295.8261 555 17th Street, Suite 3200, Denver, CO 80202-3921 Mail to: P.O. Box 8749, Denver, CO 80201 -8749 www.hollandhart.com Alaska Colorado Idaho Montana Nevada New Mexico Utah Washington, D.C. Wyoming May 16, 2022 VIA FORT COLLINS CORA PORTAL Travis Storin Financial Services 215 N. Mason St. Fort Collins, CO 80524 Kevin Wilkins Information Technology 215 North Mason Street Fort Collins, CO 80524 Chad Crager Fort Collins Connexion 222 LaPorte Ave. Fort Collins, CO 80521 Theresa Connor Utilities PO Box 580 Fort Collins, CO 80522-0580 Re: Colorado Open Records Act (“CORA”) Request Dear Mr. Storin, Mr. Wilkins, Mr. Crager, and Ms. Connor, Pursuant to the Colorado Open Records Act (“CORA”), Colo. Rev. Stat. §§ 24-72-201 et seq., I hereby request copies of the following public records related to the City of Fort Collins’s (“City”) project to implement a comprehensive solution for utilities and broadband billing (“Project”) in partnership with Open International, LLC and Open Investments, LLC (together, “Open”): 1. All non-privileged public records that constitute draft or final memoranda and/or assessments regarding the Project, including but not limited to any such draft and final memoranda and/or assessments created, produced, or authored by Dr. Michelle Frey or Vanir Construction Management, Inc. in or around November 2019 through April 2020. Case 1:21-cv-02063-DDD-NYW Document 62-2 Filed 06/17/22 USDC Colorado Page 3 of 4 Colorado Open Records Act Request May 16, 2022 Page 2 When you produce the public records responsive to these requests, I ask that you produce them in their entirety, including all attachments, enclosures, and exhibits. In the event you determine that a ny public record sought by the requests contains information that falls within a statutory exception to mandatory disclosure under CORA, I ask that you review such material or information for possible discretionary disclosure and, further, produce any portions of the requested records that are subject to production under CORA with redactions as appropriate, rather than withholding documents in their entirety. For any documents or portions of documents that you decide to withhold on the basis of a statutory exception to CORA, or on any other ground, please identify the documents and portions of documents that are being withheld and “cite the law or regulation under which access is [being] denied.” Colo. Rev. Stat. § 24-72-204(4). If any of the records I request are not in your custody or control, please notify me of that fact in writing and “state in detail to the best of [your] knowledge . . . the location of the records, and what person then has custody or control of the records,” as required by Colo. Rev. Stat. § 24- 72-203(2)(a). If any of th e above-requested records are stored in electronic form or are available to be scanned and sent via electronic mail, please send those records to me via email or other electronic means at adwhite@hollandhart.com. If the records are unavailable for electronic transmission and any anticipated charges for producing them will be less than $500.00, please mail copies of the records to my attention at the following address with any invoice for copy charges: Holland & Hart LLP, 555 17th Street, Suite 3200, Denver, Colorado 80202-3921. If the charges for producing copies of the requested records by mail are likely to exceed $500.00, please notify me as soon as possible; I may elect to first inspect the records prior to copying. In addition, pursuant to § 4(f) of the City’s Public Records Requests Policy, please notify me if you believe the fees for researching, retrieving, reviewing, manipulating, segregating, or redacting the requested records will be $50 or m ore. If you have any questions about this request, please do not hesitate to contact me. I look forward to your response at your earliest convenience, and no later than three business days, as requ ired by CORA. See Colo. Rev. Stat. § 24-72-203(3)(b). Thank you in advance for your prompt response. Respectfully submitted , Alexander D. White HOLLAND & HART LLP cc: Paul D. Swanson (pdswanson@hollandhart.com) Anna van de Stouwe (acvandestouwe@hollandhart.com) Hannah Armentrout (hearmentrout@hollandhart.com ) Case 1:21-cv-02063-DDD-NYW Document 62-2 Filed 06/17/22 USDC Colorado Page 4 of 4 ([KLELW Case 1:21-cv-02063-DDD-NYW Document 62-3 Filed 06/17/22 USDC Colorado Page 1 of 3 1400 Wewatta Street | Suite 400 | Denver, CO | 80202-5549 | T 303.629.3400 | F 303.629.3450 | dorsey.com CASE L. COLLARD (303) 352-1116 collard.case@dorsey.com June 6, 2022 VIA E -MAIL Paul D. Swanson Holland & Hart 555 17th Street, Suite 3200 Denver, CO 80202 (303) 295-8578 Email: pdswanson@hollandhart.com Re: City of Fort Collins v. Open International, et al. Dear Paul, We are writing regarding the production of documents that are protected by attorney-client privilege, work-product, and/or the deliberative process privilege 1, which were produced under the following bates numbers: 1) CFC_012172 2) CFC_012173 3) CFC_023775 4) CFC_042257 5) CFC_042258 6) CFC_042261 7) CFC_048449 8) CFC_051600 9) CFC_051603 10) CFC_051888 11) CFC_059260 12) CFC_060639 13) CFC_068763 14) CFC_068766 15) CFC_077126 16) CFC_077128 17) CFC_077129 18) CFC_081640 Pursuant to Paragraph 12.1(c) of the Stipulated Protective Order and F.R.E. 502(d), please immediately and permanently destroy all copies/versions of the aforementioned mentioned documents and refrain from using or disclosing these documents in the course of this litigation or any other matter. If these documents are part of larger “families” (i.e. consist of cover emails or other attachments), we will re-produce the documents without the above-referenced documents, along with a corresponding privilege log. Please note, this applies to versions of the documents that Open’s Jairo Contreras improperly obtained from the City’s SharePoint site on July 7, 2021, after the City initiated this lawsuit, and which were produced by Open with the following bates numbers: 1) Open_Intl_00000001 2) Open_Intl_00003232 3) Open_Intl_00034417 1 See SEC v. Nacchio, 2009 U.S. Dist. LEXIS 8365 (D. Colo. Jan. 29, 2009), aff'd, 704 F. Supp. 2d 1099 (D. Colo. 2010) (“The deliberative process privilege seeks to (1) encourage open, frank discussions on matters of policy between agency subordinates and superiors; (2) protect against premature disclosure of proposed policies; and (3) protect against public confusion from disclosure of reasons and rationale that were not in fact ultimately the grounds for an agency’s actions.”) (citation omitted). 4) Open_Intl_00034421 5) Open_Intl_00034496 6) Open_Intl_00034498 Case 1:21-cv-02063-DDD-NYW Document 62-3 Filed 06/17/22 USDC Colorado Page 2 of 3 Paul Swanson June 6, 2022 Page 2 7) Open_Intl_00034556 8) Open_Intl_00082937 Should Open challenge the City’s asserted privilege with respect to any of these documents, Open has an obligation to destroy these documents first and then raise issues with the Court, per the parties’ Stipulated Protective Order. Accordingly, please confirm that you have destroyed the documents identified above, and all copies/variations, by June 10, 2022. Sincerely, Case L. Collard Case 1:21-cv-02063-DDD-NYW Document 62-3 Filed 06/17/22 USDC Colorado Page 3 of 3 ([KLELW Case 1:21-cv-02063-DDD-NYW Document 62-4 Filed 06/17/22 USDC Colorado Page 1 of 3 1 Wells, Wynter From:Paul D. Swanson <PDSwanson@hollandhart.com> Sent:Tuesday, June 7, 2022 5:46 PM To:Starr, Stacy; Alex D. White; Anna C. van de Stouwe; Anne Tupler; Marcy Weaver Cc:Collard, Case; Wechter, Andrea; Collard, Case; Aubrey K. Bahnson Subject:RE: City of Ft. Collins v Open International EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS. Thanks for the letter, Case, and thanks, Stacy, for sending. I confirm that we have destroyed the documents produced by the City that are set forth in the letter, except for the document with the Bates number CFC_081640. CFC_080545 is the last Bates‐stamped document we’ve received from the City. Please provide a privilege log for the clawed back documents by June 14. As for Open’s documents, we dispute your characterization of those documents. But in any event, I’m not aware of any rule or any provision in the Court’s orders that authorizes the City to restrict Open’s use of documents that were not produced in the litigation by the City. If there’s a provision we have overlooked and that you purport to rely on, please let us know. Best, Paul Paul D. Swanson Holland & Hart LLP | 303.295.8578 From: Starr.Stacy@dorsey.com <Starr.Stacy@dorsey.com> Sent: Monday, June 6, 2022 5:05 PM To: Paul D. Swanson <PDSwanson@hollandhart.com>; Alex D. White <ADWhite@hollandhart.com>; Anna C. van de Stouwe <ACVanDeStouwe@hollandhart.com>; Anne Tupler <ATupler@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com> Cc: collard.case@dorsey.com; wechter.andrea@dorsey.com; collard.case@dorsey.com Subject: City of Ft. Collins v Open International External Email Attached, please find correspondence from Case Collard in the above‐referenced case. Please feel free to contact our office with questions. Stacy Starr Legal Assistant Pronouns: She/Her/Hers Case 1:21-cv-02063-DDD-NYW Document 62-4 Filed 06/17/22 USDC Colorado Page 2 of 3 2 DORSEY & WHITNEY LLP 1400 Wewatta Street Suite 400 | Denver, CO 80202‐5549 P: (303) 352‐1112 F: (303) 629‐3450 Case 1:21-cv-02063-DDD-NYW Document 62-4 Filed 06/17/22 USDC Colorado Page 3 of 3 Case 1:21-cv-02063-DDD-NYW Document 62-5 Filed 06/17/22 USDC Colorado Page 1 of 4 Case 1:21-cv-02063-DDD-NYW Document 62-5 Filed 06/17/22 USDC Colorado Page 2 of 4 Case 1:21-cv-02063-DDD-NYW Document 62-5 Filed 06/17/22 USDC Colorado Page 3 of 4 Case 1:21-cv-02063-DDD-NYW Document 62-5 Filed 06/17/22 USDC Colorado Page 4 of 4