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Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 064 - City Mot Protective Order W Exhibits1 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 FOR PROTECTIVE ORDER TO REQUIRE DEFENDANTS’ COMPLIANCE WITH THE OCTOBER 14, 2021 STIPULATED PROTECTIVE ORDER CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1 Counsel for Plaintiff (the “City”) consulted with counsel for Defendants (collectively, “Open”) since May 16, 2022. Open opposes. INTRODUCTION At the June 16th hearing, Open’s counsel raised the City’s expected Motion for Protective Order related to Open’s Colorado Open Records Act (“CORA”) request. This Court asked that the Parties be ready to address why the documents sought through the CORA request should not be produced via discovery in this action versus through a CORA request. To be clear, the documents have been produced in this action pursuant to the Stipulated Protective Order entered by this Court on October 14, 2021 [the “SPO,” Dkt. 32]. Rather, the issue is that Open’s counsel Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 1 of 16 2 has used these confidential documents outside of this litigation to make a CORA request to obtain “public versions” and avoid the protections of the SPO. Open took this approach after the City refused Open’s repeated demands to waive its “CONFIDENTIAL” designations over the properly designated and protected documents so that Open can publicize them outside of this litigation despite having agreed to the express terms of the SPO. Open admits that the City’s confidential designations are not subject to challenge under the SPO, that certain documents are further protected under the confidentiality provisions of the Parties’ Master Professional Services Agreement (“MPSA”). Open has refused to identify even a single reason it needs to publicly use or disclose the protected information outside of this litigation. Despite making the request via litigation counsel, the most Open could muster is that they seek “public versions” of confidential documents and information produced in this action for an undisclosed purported “non-litigation use.” But the Parties entered into the SPO to afford confidential documents “special protection from public disclosure and from use for any purpose other than prosecuting and defending this litigation.” SPO [Dkt. 32] § 1.1 (emphasis added). Open’s use of numerous documents designed as “CONFIDENTIAL” in this litigation to identify what it wanted to use “publicly” and attempt to seek “public versions” of the same through a CORA request violates the SPO. As Open’s counsel informed this Court at the June 16th hearing, Open intends to file a state action to pursue the CORA request. But the orders in this Court void the CORA request pursuant to C.R.S. § 24-72-204(1)(c) and the Supremacy Clause (applicable due to Open’s removal of this action), as further detailed below. Open’s CORA request is only one prong of its campaign to publicize confidential City documents to undercut the SPO. Open has also attached Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 2 of 16 3 confidential documents to an unrelated motion—to compel production of TMG documents based on disputes concerning privilege [Dkt. 44]—as purported “background” information and then opposed restriction. Most significantly, Open admitted—via declaration of its President Hernando Parrott— that Open improperly downloaded everything it could access, including several of the documents at issue, without authorization, on July 7, 2021. Decl. of H. Parrott, Ex. 1 ¶¶7-9. This was after the City had (1) terminated Open, (2) filed this litigation against Open five days earlier on July 2, 2021, and (3) given the declarant, Mr. Parrott, actual notice of the complaint by direct email to him that very same day (July 2, 2021 email forwarding complaint to H. Parrott, Ex. 2).1 Put differently, after the start of litigation, Open—as the City’s litigation adversary—emptied the file cabinets after it was already “out the door” per the prior termination. Open now admits that it took the City’s documents, under the guise of “preservation,” even though it no longer had any authority because it had been terminated. But Open knew that it was not authorized and admitted exactly that: Just hours after Jairo Contreras of Open downloaded numerous documents at approximately 5:20 a.m. on July 7th (Decl. of B. Wasko, Ex. 3 ¶ 3), Mr. Contreras turned around and sent an email to the City’s project manager with TMG at 12:04pm, conceding that Open’s access and credentials should have been revoked and purporting to inform the City that Open would not access anything as required: As per Fort Collin[s]’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 [City’s] platform. 1 The City will be filing a separate motion on Open’s improper download of the City’s documents following termination, without authorization, and with full notice of the litigation. Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 3 of 16 4 J. Contreras’s July 7, 2021 E-mail, Ex. 4 at 1-2 (emphasis added). Mr. Contreras did not reveal that he had already improperly downloaded the very files at issue. To the extent that Open now relies on its production of these improperly taken documents (Ex. 1 ¶¶7-9)—which Open also designated as “Confidential”—as the basis for the CORA request, this not only provides another violation of the SPO but is otherwise improper.2 Open violated the SPO and must be required to comply with the same. BACKGROUND A. This Court’s Orders. 1. The Scheduling Order. On September 16, 2021, this Court entered the Scheduling Order. Scheduling Order [Dkt. 21]. As to other “Discovery Orders,” the Scheduling Order confirmed that the Parties “agree[d] that the present litigation necessitates a protective order” and noted their “plan to jointly file a motion for entry of protective order as well as a proposed stipulated protective order with the Court.” Id. at 12 (emphasis added). 2. The SPO. On October 14, 2021, this Court entered the Parties’ proposed SPO. Section 1.1 set forth the “Purposes and Limitations”: Discovery in this Action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting and defending 2 Indeed, the MPSA only permitted Open to use confidential information received “solely for the purpose of performing its obligations under [the MPSA] and not in any way detrimental to [the City]” and further required Open to “destroy all copies of Confidential Information” upon the City’s termination of the MPSA (not take additional documents). MPSA, [Dkt. 6] at 111, §3; id. at 36, § 13.7. This is further set forth in Dkt. 62. Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 4 of 16 5 this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Protective Order. Dkt. 32 § 1.1 (emphasis added). A party can designate materials as “CONFIDENTIAL.” Id. §§ 2.6 and V. “‘CONFIDENTIAL’ Information Or Items” includes “information (regardless of how it is generated, stored or maintained) or tangible things that constitute confidential research, development, commercial information, personal identifiable information, technical information, and financial data.” Id. § 2.3. “CONFIDENTIAL” information constitutes “Protected Material.” Id. § 2.15. The “Basic Principles” for “ACCESS TO AND USE OF PROTECTED MATERIAL” limits use to “only for prosecuting, defending, or attempting to settle this Action” and disclosure to “only to the categories of persons and under the conditions described” therein. Id. § 7.1 (emphasis added). The SPO expressly limited who could receive Protected Material, specifically identifying, under “Disclosure of ‘CONFIDENTIAL’ Information or Items”, those to whom a receiving party could “disclose any information or item designated as ‘CONFIDENTIAL.’” Id. § 7.2. In drafting the SPO, the Parties defined the “SCOPE” to sufficiently carry out its “Purpose”: The protections conferred by this Stipulation and Order cover not only Protected Material . . ., but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. Id. § III (emphasis added). Section VI sets forth the procedure for challenging confidentiality designations, requiring a party to provide “written notice of each designation it is challenging and describ[e] the basis Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 5 of 16 6 for each challenge.” Id. §§ VI, 6.1 & 6.2. Upon written notice, the parties attempt to resolve each challenge and the challenging party “must explain the basis for its belief that the confidentiality designation was not proper.” Id. § 6.2. The provision includes judicial intervention. Id. Section VIII—“PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION OR SOUGHT BY OPEN RECORDS REQUESTS”— requires a receiving party’s full cooperation to protect and respect a designating party’s Protected Material that may be affected. Id. § VIII. It permits a designating party to seek a protective order. Id. As to open-records requests, it provides that “[i]f a Party receives an open-records requests that seeks disclosure of Protected Material,” that Party must: (a) invoke all applicable exceptions to the open-records law….; (b) promptly notify in writing the Designating Party if it believes no exception applies or believe disclosure may be required…; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party…” Id. LEGAL AUTHORITY Pursuant to Section VIII of the SPO, a designating party may timely seek a protective order pursuant to the SPO to protect Protected Material. SPO [Dkt. 32] § VIII. Rule 26(c) provides that “[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending” and “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; . . . (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; . . . (G) requiring that a trade secret or other Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 6 of 16 7 confidential research, development, or commercial information not be revealed or be revealed only in a specified way.” Fed. R. Civ. P. 26(c)(1). Rule 26 further awards expenses, including attorney’s fees, with respect to such motions. Fed. R. Civ. P. 26(c)(3). C.R.S. § 24-72-204(1)(c) provides an exception to the right of inspection of records where “[s]uch inspection is prohibited by rules promulgated by the supreme court or by the order of any court.” C.R.S. § 24-72-204(1)(c); see also C.R.S. § 24-72-203(1)(a) (making public records open for inspection “except . . . as otherwise provided by law”). ARGUMENT A. Open Violated the SPO by Using the Produced Protected Material as the Basis of a CORA Request. Open could have opposed a protective order or sought a more limited language. Instead, the Parties stipulated to the SPO for the very purpose that the City seeks to require Open’s compliance: “special protection from public disclosure and from use for any purpose other than prosecuting and defending this litigation.” SPO [Dkt. 32] § 1.1 (emphasis added). The Parties produced documents with “CONFIDENTIAL” designations to protect the information contained therein. The conferral history highlights the key disputes and informs the argument: 1. Open’s May 16, 2022 Demand That the City Waive “CONFIDENTIAL” Designations and Related Conferral. On May 16, 2022, Open’s counsel identified, by bates numbers, seventeen documents that were produced in this litigation with “CONFIDENTIAL” designations, constituting Protected Material under the SPO. May 16 email, attaching draft CORA request (the “Demand”), Ex. 5. The bates-numbered documents identified are collectively referred to herein as the “Produced Protected Material.” These documents were the City’s internal OASIS Project Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 7 of 16 8 Decision Record Memoranda, including drafts and pre-decisional deliberate material subject to protection under common law governmental deliberative process privilege (C.R.S. § 24-72- 204(3)(a)(XIII), that were drafted by Michelle M. Frey, PhD (“Dr. Frey”) with Vanir Construction Management, Inc. (“Vanir”) in her position as the OASIS Project Manager and functional equivalent of a City employee.3 Open’s counsel stated that Open would—within three days—file a CORA request “unless . . . the City will agree to waive confidentiality over [the Produced Protected Material].” Ex. 5 at 1 (emphasis added). That is, without going through the SPO’s procedures to challenge the designations or even identifying how or why Open needed to disclose and use the Produced Protected Material beyond the scope permitted in the SPO, it demanded that the City simply waive the protections or risk Open’s use of the same to obtain “public versions.” On May 18, 2022, counsel for the City responded noting that the Scheduling Order and the SPO governed the issues raised in Open’s May 16th Demand (particularly the procedures for 3 The City filed a Motion to Quash Open’s third-party subpoena directed to Vanir [Dkt. 45] based on certain privileges implicated (notably, as Vanir individuals acted as project managers and were the functional equivalent to a City employee). On June 6, 2022, the City sent notice to Open clawing back certain documents—memoranda by Dr. Frey—protected by the attorney- client privilege, the work-product doctrine, and the deliberative process privilege pursuant to Section 12.1(c) of the Stipulated Protective Order and Fed. R. Evid. 502(d). Ex. 6. Of note, C.R.S. § 24-72-204(3)(a)(XIII) permits denial of inspection under CORA for “[r]ecords protected under the common law governmental or ‘deliberative process’ privilege, if the material is so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government, unless the privilege has been waived.” One reason for the clawback was the City’s discovery (discussed above and more fully in Dkt. 62) that Open improperly obtained copies of certain memoranda from the City’s SharePoint site, without authorization, on July 7, 2021, after the City had terminated the MPSA with Open (requiring Open to destroy the City’s documents; not take additional documents without authority) and after Open became the City’s adversary in this litigation. In response to the clawback notice, Open destroyed documents produced by the City but refused to destroy or return the documents improperly obtained, without authorization, on July 7, 2021. Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 8 of 16 9 challenging confidentiality designations) and that Open’s Demand undercut such Orders. City’s May 18, 2022 Response Letter (the “Response”), Ex. 7. On May 19, 2022, Open’s counsel replied disagreeing that this Court’s Orders governed Open’s attempts to de-designate the Produced Protected Material in order to publicize the same or, absent the City’s waiver of confidentiality, to use the Produced Protected Material to attempt to “obtain public access to these documents” through a CORA request—all the while continuing to fail to identify why Open required the City’s waiver or how Open planned to “publicize” the Produced Protected Material in contravention of the SPO. May 19, 2022 Reply, Ex. 8 at 3-4. At the same time Open’s counsel conceded that the documents were properly designated and Open could not properly seek de-designation of the Produced Protected Material through the procedures in the SPO: “[W]e do not presently see an avenue by which to obtain public access through the Court” and “we do not presently see a basis for challenging those designations under the terms of the Protective Order.” Id. (emphasis added). Open also confirmed that certain documents produced by Open were further protected under the confidentiality provisions of the Parties’ MPSA, for which “[Open] need[s] the City’s agreement to waive that confidentiality protection.” Id. at 3. Thus, Open’s counsel indicated it would bypass the above requirements and prohibitions by using knowledge of the Produced Protected Material to attempt to seek the same information through a CORA request. Open’s counsel then again demanded that the City waive confidentiality by the following morning. Id. at 4. On May 20, 2022, counsel conferred telephonically. Counsel for the City then pointed to express provisions in the SPO. Counsel for Open claimed that Section VIII governing open- records requests only provided protection of documents produced by Open but did not apply to Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 9 of 16 10 the City. On May 24, 2022, Open’s counsel sent another email asserting that “[g]iven that, if Open can obtain the identified memoranda [produced as the Produced Protected Material in this case] through the CORA process, the memos could be used without restriction from the MPSA or Protective Order.” May 24, 2022 Follow-Up, Ex. 8 at 2 (emphasis added). In so stating, Open ignored the fact that Open was already using the Produced Protected Material for a purpose not permitted in the SPO—i.e. to identify the memoranda as ones it should attempt to obtain through other measures to bypass the SPO. Indeed, Open’s counsel admitted that “we already have the memos” in this litigation but that Open sought “public access to documents we already have.” Id. Open’s counsel confirmed that Open would use the Produced Protected Material outside of the permitted scope of the SPO, confirming: “[W]ithout divulging privileged information or suggesting that CORA requires us to disclose the purpose of a request, we have a non-litigation use in mind.” Id. (emphasis added). Open then again demanded that the City waive confidentiality, by the next day, or face Open’s use of the same for a CORA request. Id. at 3. The City declined and Open submitted its CORA request. Id. at 1. The City responded to the CORA request and declined to produce unprotected versions of the Produced Protected Materials, referencing C.R.S. § 24-72-204(1)(c) for the exception to the right of inspection of records based on the Scheduling Order and SPO entered in this Court, and which recognizes the Supremacy Clause. CORA response, Ex. 9. Indeed, based upon Open’s removal of this action, the Supremacy Clause voids the CORA request. See infra Section B, below. On June 8, 2022 (and again during the hearing on June 16, 2022), Open noticed its intent to seek court intervention in state court. Ex. 10. Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 10 of 16 11 2. The SPO Applies and Open Violated the Same. Open and the City freely and jointly petitioned this Court for the entry of the SPO for the very purpose of requiring “special protection from public disclosure and from use for any purpose other than prosecuting and defending this litigation.” SPO [Dkt. 32] § 1.1 (emphasis added). Materials designated “CONFIDENTIAL” did not only require protection of that single, tangible document but also the information contained therein and protection of every other copy or summary. Id. §§ 2.3, 2.15, 7.1, III. Neither the Parties nor their counsel could even communicate or make statements that would reveal information contained in the Protected Material outside of the permitted scope. Id. § III. Here, it is undisputed that the Produced Protected Material were designated “CONFIDENTIAL” and produced in this litigation and is protected under the SPO. See Open’s Demand, Ex. 5 at 1 (identifying bates numbers). After conceding twice that Open had no basis to challenge the designations of the Produced Protected Material through the procedures in Section VI of the SPO (Ex. 8 at 3-4), and after the City refused to “waive” the protections afforded under the SPO (in addition to the confidentiality provision of the MPSA (id. at 3)), Open nonetheless proceeded to use the Produced Protected Material for a non-litigation purpose—to make a CORA request for “public versions” of the same. That is, Open and its counsel used their knowledge of the Produced Protected Material and the information contained therein to submit a CORA request in an attempt to obtain “public versions” of the documents they received in this litigation for an undisclosed and purported “non-litigation” use. Indeed, Open made it clear it was using “the identified memoranda”—i.e. the Produced Protected Material—to seek the same “through the CORA process” so that Open could further Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 11 of 16 12 use the same “without restriction from the MPSA or Protective Order.” Ex. 8 at 2. This use is a clear violation of the SPO. Since Open admitted that “we already have the memos” in this litigation (id.), the use for the CORA request was admittedly not in furtherance of either prosecuting or defending the claims; it was to try to obtain “public versions” of that same information. Open violated the SPO. B. Open Must Be Required to Comply with the SPO. Perhaps Open wishes that it had not entered into a (relatively standard) protective order and now wishes to litigate this case without those protections, but Open did and is bound by it. The City seeks an Order requiring Open and its counsel comply with the SPO. In addition to the above violation, any use of the purported “public versions” of the Produced Protected Material that may be obtained through the CORA request would be a further violation of the SPO as it stems from the use of the Produced Protected Material to make the CORA request. Open should not be permitted to publicly disclose—by going to the press or otherwise—the Produced Protected Material or the information therein in violation of the SPO, especially after using the Produced Protected Material for the CORA request and conceding that it cannot make the appropriate de-designation challenges. Open is using any opportunity it can to attach the Produced Protected Material, including those subject to the City’s clawback notice and those improperly taken by Open following filing of this case, to briefing that have no relation to Vanir as purported “background” information when such documents have no bearing on the underlying motion. See Dkt. 44 (motion concerning privilege issues related to TMG documents). Open should not be permitted to get around the de-designation procedures by simply attaching what it wants to publicize to any filing it submits to line up opportunities to Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 12 of 16 13 publicize the same. Open’s argument that Section VIII of the SPO governing open-records requests only protects Open’s confidential documents would defeat the purpose of the SPO as it requires Open’s full cooperation to protect and respect a designating party’s Protected Material sought outside of this litigation. SPO [Dkt. 32] §§ VIII and XI. In any event, pursuant to Open’s removal of this action to federal court, and based on “review of the narrow body of caselaw that addresses the intersection of the Supremacy Clause, State public records laws, and federal court discovery orders, . . . a federal court order issued pursuant to Rule 26 to prevent the disclosure of documents[, such as the SPO,] renders any state statute or regulation to the contrary[, such as CORA,] void pursuant to the Supremacy Clause.” Mata Chorwadi, Inc. v. City of Boynton Beach, 2020 U.S. Dist. LEXIS 86644, at *7 (S.D. Fla. May 18, 2020) (emphasis added) (citing CSX Transportation, Inc. v. Fla. Dep’t of Revenue, 2006 U.S. Dist. LEXIS 107005, at *6 (N.D. Fla. Dec. 26, 2006) (“even if it were Florida law that discovery materials arising from this litigation are public records, if this court finds good cause, notwithstanding Florida’s open records policy, and enters a protective order, the order must supersede Florida law pursuant to the Supremacy Clause.”); United States v. Napper, 694 F. Supp. 897, 901 (N.D. Ga. 1988) (relying on Supremacy Clause to mandate that its order supersedes requirements imposed by state court pursuant to state public records law); Fatemi v. White, 2014 U.S. Dist. LEXIS 199573 at *2 (E.D. Ark. Mar. 27, 2014) (holding the same, noting that “the Supremacy Clause resolves the conflict between this federal law and the [Arkansas Public Records Law], which would otherwise make these materials public records”)).4 4 Indeed, CORA contemplates that the Supremacy Clause may trump the statute in providing that Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 13 of 16 14 Accordingly, pursuant to the Supremacy Clause, this Court’s orders (including the SPO) supersede those of any state Court on this issue and the City would not be subject to liability under the Colorado statute despite any action by Open to seek court intervention in state court. The Parties agreed and moved this Court to enter the SPO for specialized protection to Protected Material from public disclosure and use outside of this litigation. The City respectfully requests that this Court order Open’s and its counsel’s compliance with the SPO entered on October 14, 2021. CONCLUSION This Court should order: (1) Open and its counsel comply with the SPO and stop further improper use of Protected Material, including in the CORA request, and (2) that the City’s compliance with the SPO supersedes any potential liability under CORA, pursuant to the Supremacy Clause which renders the CORA request void. 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 a right of inspection may be prohibited “by rules promulgated by the supreme court or by the order of any court.” C.R.S. § 24-72-204(1)(c). Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 14 of 16 15 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 3,991 words. s/ Andrea Ahn Wechter Case 1:21-cv-02063-DDD-NYW Document 64 Filed 06/17/22 USDC Colorado Page 15 of 16 16 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 64 Filed 06/17/22 USDC Colorado Page 16 of 16 Exhibit 1 Case 1:21-cv-02063-DDD-NYW Document 64-1 Filed 06/17/22 USDC Colorado Page 1 of 4 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. DECLARATION OF HERNANDO PARROTT I, Hernando Parrott, am over the age of eighteen and I make this Declaration pursuant to 28 U.S.C. § 1746, based upon my personal knowledge of the facts and circumstances stated herein: 1. I am the President of Defendant and Counterclaimant Open International, LLC (“Open”), and I am familiar with the utilities-software implementation project (the “Project”) undertaken by the City of Fort Collins (the “City”) and Open between August 2018 and July 2021. 2. Throughout its duration, the Project required detailed, ongoing, and intensive collaboration between the City and Open. 3. To further this collaboration the City set up a shared Sharepoint repository, at the beginning of the project, granting read/write access to named users of the OASIS project team members including personnel from the City and Open. The City managed this repository, adding and removing named users through the life cycle of the project. Case 1:21-cv-02063-DDD-NYW Document 57-1 Filed 06/14/22 USDC Colorado Page 1 of 3Case 1:21-cv-02063-DDD-NYW Document 64-1 Filed 06/17/22 USDC Colorado Page 2 of 4 -2- 4. Both parties accessed and contributed to the documents stored on the shared repository . 5. Among thousands of documents stored on the drive, the City kept more than a dozen memos prepared by Vanir Construction Management, Inc. (“Vanir”) in late 2019 and early 2020, including the two memos labeled Open_Intl_00034498 and -00034556, which were filed in this action as Dkts. 43-1 and 43-2, respectively. 6. Open had access to these memoranda and the rest of the shared repository long before this litigation began. 7. When Open learned that the City had filed a lawsuit, Open took steps to ensure that it preserved all documents related to the project, stored in the shared repository. 8. Open preserved a copy of the documents on the shared drive on July 7, 2021, and the City effectuated service of the initial state court summons and complaint on Open on July 9, 2021. 9. Open thereafter produced copies of the Vanir memos and other shared-drive documents to the City in September and November 2021. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed on the 14th day of June, 2022 at Miami, Florida Hernando Parrott Case 1:21-cv-02063-DDD-NYW Document 57-1 Filed 06/14/22 USDC Colorado Page 2 of 3Case 1:21-cv-02063-DDD-NYW Document 64-1 Filed 06/17/22 USDC Colorado Page 3 of 4 -3- Case 1:21-cv-02063-DDD-NYW Document 57-1 Filed 06/14/22 USDC Colorado Page 3 of 3Case 1:21-cv-02063-DDD-NYW Document 64-1 Filed 06/17/22 USDC Colorado Page 4 of 4 Exhibit 2 Case 1:21-cv-02063-DDD-NYW Document 64-2 Filed 06/17/22 USDC Colorado Page 1 of 2 1 Wells, Wynter From:Duff, Cheryl Sent:Friday, July 2, 2021 3:14 PM To:hernando.parrott@openintl.com Cc:Collard, Case; Wechter, Andrea; Shoaei, Maral Subject:City of Fort Collins v. Open International, LLC, et al. Attachments:2021-07-02 Complaint (City of Ft. Collins v. Open Int., et al.).zip; 2021-07-02 LTR C Collard to H Parrott re Response to Open's June 28 Proposal.pdf Mr. Parrott: Please see the attached correspondence from Case Collard regarding the above‐referenced matter. Also attached is a zip file with courtesy copies of documents filed this afternoon in Larimer County District Court. These documents are also being sent to you via FedEx. Cheryl L. Duff Legal Assistant Pronouns: She/Her/Hers DORSEY & WHITNEY LLP 1400 Wewatta Street, Suite 400 | Denver, CO 80202‐5549 P: 303.352.1137 CONFIDENTIAL COMMUNICATION E‐mails from this firm normally contain confidential and privileged material, and are for the sole use of the intended recipient. Use or distribution by an unintended recipient is prohibited, and may be a violation of law. If you believe that you received this e‐mail in error, please do not read this e‐mail or any attached items. Please delete the e‐mail and all attachments, including any copies thereof, and inform the sender that you have deleted the e‐mail, all attachments and any copies thereof. Thank you. Please help reduce paper and ink usage. Print only if necessary. Case 1:21-cv-02063-DDD-NYW Document 64-2 Filed 06/17/22 USDC Colorado Page 2 of 2 ([KLELW Case 1:21-cv-02063-DDD-NYW Document 64-3 Filed 06/17/22 USDC Colorado Page 1 of 5 Case 1:21-cv-02063-DDD-NYW Document 64-3 Filed 06/17/22 USDC Colorado Page 2 of 5 Case 1:21-cv-02063-DDD-NYW Document 64-3 Filed 06/17/22 USDC Colorado Page 3 of 5 Case 1:21-cv-02063-DDD-NYW Document 64-3 Filed 06/17/22 USDC Colorado Page 4 of 5 Case 1:21-cv-02063-DDD-NYW Document 64-3 Filed 06/17/22 USDC Colorado Page 5 of 5 ([KLELW Case 1:21-cv-02063-DDD-NYW Document 64-4 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 64-4 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 64-4 Filed 06/17/22 USDC Colorado Page 3 of 3 ([KLELW Case 1:21-cv-02063-DDD-NYW Document 64-5 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 64-5 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 64-5 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 64-5 Filed 06/17/22 USDC Colorado Page 4 of 4 ([KLELW6 Case 1:21-cv-02063-DDD-NYW Document 64-6 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 64-6 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 64-6 Filed 06/17/22 USDC Colorado Page 3 of 3 ([KLELW7 Case 1:21-cv-02063-DDD-NYW Document 64-7 Filed 06/17/22 USDC Colorado Page 1 of 4 1400 Wewatta Street | Suite 400 | Denver, CO | 80202-5549 | T 303.629.3400 | F 303.629.3450 | dorsey.com ANDREA AHN WECHTER Partner (303) 352-1118 wechter.andrea@dorsey.com May 18, 2022 VIA ELECTRONIC MAIL Alex White Holland & Hart 555 17th Street, Suite 3200 Denver, CO 80202 (303) 295-8017 Email: adwhite@hollandhart.com Re: Response to May 16, 2022 Demand Regarding Colorado Open Records Act (”CORA”) Request Dear Alex, We are in receipt of your May 16, 2022 email providing notice of Open’s intent to file a Colorado Open Records Act (“CORA”) Request (the “CORA Request”) on May 19, 2022 unless the City “agree[s] to waive confidentiality over certain specified documents covered by the request” by such date. The Scheduling Order and the Protective Order entered in this case govern the issues raised in your email and the draft CORA Request. The Scheduling Order, entered September 16, 2021, set the limits on and governs the scope of discovery. The section titled “Discovery Limitations” expressly limited the number of requests for production to 25 per side. Pursuant to Fed. R. Civ. P. 34(b)(2)(A), a party has 30 days to respond to a request for production. Pursuant to the Scheduling Order, the parties also agreed to jointly file a motion for entry of protective order and, on October 14, 2021, the Court entered the parties’ Stipulated Protective Order. Section VI of the Protective Order sets forth the exact procedure for challenging confidentiality designations. For example, the challenging party “shall initiate the dispute resolution process (and, if necessary, file a discovery motion) under D.C.COLO.LCivR 7.1 and, if applicable, NYW Civ. Practice Standard 7.1 and 37.1, etc., by providing written notice of each designation it is challenging and describing the basis for each challenge.” Protective Order § 6.2. The provision requires the parties to attempt to resolve each challenge in good faith within 14 days of the date of service of the notice. As part of the process, the Protective Order also provides for “Judicial Intervention.” Id. § 6.3. With respect to CORA, the open records laws were carefully limited by the legislature “making those provisions applicable except as ‘otherwise provided by law’ or except as ‘prohibited by rules promulgated by the supreme court or by the order of any court.’” Martinelli v. Dist. Court of Denver, 177, 612 P.2d 1083, 1093 (Colo. 1980) (citing, in part, C.R.S. §§ 24-72-203(1)(a) and 24-72-204(1)(c)). The Colorado Supreme Court has held that such language indicates that “[t]he legislature did not intend that the open records laws would supplant discovery practice in civil Case 1:21-cv-02063-DDD-NYW Document 64-7 Filed 06/17/22 USDC Colorado Page 2 of 4 May 18, 2022 Page 2 1400 Wewatta Street | Suite 400 | Denver, CO | 80202-5549 | T 303.629.3400 | F 303.629.3450 | dorsey.com litigation.” Id. Colorado courts have prohibited parties from using CORA as a means “to circumvent” a scheduling order and “abuse the discovery process to obtain discovery in excess of the limitations” set by the court.1 Citizen Ctr. v. Gessler, Civil Action No. 12-cv-00370-CMA- MJW, 2012 U.S. Dist. LEXIS 98066, at *6-7 (D. Colo. July 16, 2012). Indeed, “the order of any court controls a party’s access to public records in civil litigation regardless of whether CORA allows or prohibits access to the same records.” Id. at *10. Open’s email demand and draft CORA Request contradict and seek to undercut the Orders of the Court, including the discovery limitations and protections afforded to parties’ confidential information. For example, the CORA request has a deadline of 3 days, compared to 30 days for normal discovery procedures. The CORA request is covered by two Requests for Production already made by Open.2 This request also runs counter to the Protective Order’s process for challenging confidentiality designations. Finally, it attempts to circumvent the Scheduling Order’s limit of 25 requests for production per party. This is even more concerning as the City just agreed to compromise on Open’s multiple compound requests for production which afforded Open with additional requests beyond those permitted by the Scheduling Order to resolve the recent discovery disputes without court intervention. Should Open proceed with this CORA request, the City will seek a protective order requesting that Open utilize the proper discovery procedures. This improper request unnecessarily complicates what should be straightforward discovery issues. If Open would have asked, the City would have informed Open that it does not object to the production of document drafts, it has already produced relevant and non-privileged drafts and will continue to do so. Additionally, the City recognizes Open’s right to seek de-designation pursuant to the Protective Order and will consider any requests in good faith. However, Open must abide by the Protective Order to which it stipulated. 1 See also Formal Opinion of Ken Salazar, attorney General, No. 01-1, Colorado Open Records Act, Issued July 5, 2001 (“there may also be times when parties to a civil lawsuit cannot use the Open Records Act to obtain information. That can happen in cases where a request for records under the Open Records Act violates a limit on discovery imposed by the court or under the rules of civil procedure or otherwise interferes with the judicial process”). 2 Open’s RFP No. 4 requested “all documents concerning Vanir Construction’s role with the Project, including the files, memoranda, reports, emails, and other documents of Andrew Amato and Michelle Frey related to the Project, as well as other documents concerning Vanir Construction’s assessment of and participation in the Project" and RFP No. 7 requested “all memoranda, assessments, lessons-learned analyses, meeting agenda, meeting minutes, meeting transcripts, presentations, and reports that were prepared for, participated in by, or delivered to City personnel—including employees, contractors, consultants, and elected or appointed officials of the City—concerning the Project.” Case 1:21-cv-02063-DDD-NYW Document 64-7 Filed 06/17/22 USDC Colorado Page 3 of 4 May 18, 2022 Page 3 1400 Wewatta Street | Suite 400 | Denver, CO | 80202-5549 | T 303.629.3400 | F 303.629.3450 | dorsey.com Sincerely, DORSEY & WHITNEY LLC s/ Andrea Ahn Wechter Andrea Ahn Wechter Partner Case 1:21-cv-02063-DDD-NYW Document 64-7 Filed 06/17/22 USDC Colorado Page 4 of 4 ([KLELW8 Case 1:21-cv-02063-DDD-NYW Document 64-8 Filed 06/17/22 USDC Colorado Page 1 of 6 1 Wells, Wynter From:Alex D. White <ADWhite@hollandhart.com> Sent:Wednesday, May 25, 2022 5:01 PM To:Wechter, Andrea; Paul D. Swanson; Wells, Wynter; Collard, Case; Shoaei, Maral; Starr, Stacy Cc:Anna C. van de Stouwe; Anne Tupler; Marcy Weaver Subject:RE: Response to 05/16/22 Ft. Collins v. Open - Public Records Request EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS. Thanks, Andrea. The request has now been submitted. Alex White Holland & Hart LLP T 303.295.8517 F 303.296.4188 M 303.881.0402 From: wechter.andrea@dorsey.com <wechter.andrea@dorsey.com> Sent: Wednesday, May 25, 2022 4:30 PM To: Paul D. Swanson <PDSwanson@hollandhart.com>; Alex D. White <ADWhite@hollandhart.com>; Wells.Wynter@dorsey.com; collard.case@dorsey.com; Shoaei.Maral@dorsey.com; Starr.Stacy@dorsey.com Cc: Anna C. van de Stouwe <ACVanDeStouwe@hollandhart.com>; Anne Tupler <ATupler@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com> Subject: RE: Response to 05/16/22 Ft. Collins v. Open ‐ Public Records Request External Email Paul, We forgot to touch base on this issue. We stand on the positions previously communicated, including the application of, purpose of, and scope of the Stipulated Protective Order entered in this case. We intend to file the necessary motions previously noted upon Open’s submission of a CORA request. Please let us know when that is submitted. Thank you, Andrea From: Paul D. Swanson <PDSwanson@hollandhart.com> Sent: Tuesday, May 24, 2022 4:50 PM To: Alex D. White <ADWhite@hollandhart.com>; Wells, Wynter <Wells.Wynter@dorsey.com>; Wechter, Andrea <wechter.andrea@dorsey.com>; Collard, Case <collard.case@dorsey.com>; Shoaei, Maral <Shoaei.Maral@dorsey.com>; Starr, Stacy <Starr.Stacy@dorsey.com> Cc: Anna C. van de Stouwe <ACVanDeStouwe@hollandhart.com>; Anne Tupler <ATupler@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com> Subject: RE: Response to 05/16/22 Ft. Collins v. Open ‐ Public Records Request EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS. Case 1:21-cv-02063-DDD-NYW Document 64-8 Filed 06/17/22 USDC Colorado Page 2 of 6 2 Hi, Andrea— Thanks for the call on Friday. Since you raised the Protective Order, we want to highlight a few provisions that we think apply here, and we want to suggest a compromise. Regarding the Protective Order, on closer review, we are sure it covers only documents produced in the litigation, and not identical documents obtained outside litigation. We note the definitions in Sections 2.7 and 2.15: 2.7. Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter. 2.15. Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL” or as “HIGHLY CONFIDENTIAL – AEO” or as “HIGHLY CONFIDENTIAL – SOURCE CODE.” We read these to mean that only the items or information produced or generated by a party in disclosures or discovery, and designated confidential, are protected. Thus, if the same document or information is obtained outside disclosures or discovery, then it is not protected. This conclusion is reinforced by the “basic principles” in Section 7.1: 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non‐Party in connection with this Action only for prosecuting, defending, or attempting to settle this Action. The corollary is that information obtained independently of the litigation, i.e., not disclosed or produced by another party, is not restricted. Given that, if Open can obtain the identified memoranda through the CORA process, the memos could be used without restriction from the MPSA or Protective Order. Regarding Section 6 of the Protective Order, which addresses challenges to confidentiality designations, we considered your suggestion to resolve our disagreement that way. But we conclude that process doesn’t apply here for a few reasons. First, many of the documents we seek through the CORA process haven’t been produced by the City, so there is no City designation to challenge. The only designations for those memos are by Open, which designated them confidential by dint of separate MPSA confidentiality provisions (that a CORA production would obviate). Second, for those memos the City has produced and designated, while we want them to be public and not confidential, we don’t see a basis in the protective order to challenge the designation right now. But if someone can and does obtain the memos through an open‐records request, at that point, the designation would become improper because a CORA production would show the memos are publicly available and not confidential. Third, if Open was raising a challenge to confidentiality designations, then the City would bear the burden to go to the Court to sustain confidentiality. There would be no next step for Open to take that is being sidestepped by a CORA request. Lastly, we don’t see anything in Section 8 (or elsewhere) that prohibits CORA requests here. As Alex noted, we’re not trying to obtain discovery through these requests—we already have the memos. Rather, we seek public access to documents we already have, and without divulging privileged information or suggesting that CORA requires us to disclose the purpose of a request, we have non‐litigation use in mind. As for a compromise, we understand the City objects to Open using CORA to obtain copies of memoranda that the City produced in litigation. We disagree with that objection, but if we can avoid a dispute, we are willing to confine our request to the 13 memoranda that Open obtained independent of and prior to the litigation (listed below, showing Open Bates stamps). As noted above, for many of these, the City has not produced and designated them—only Open has. For the others, Open possessed them before the City produced them, and it could have sought unrestricted versions through CORA before the City produced them. Because the Protective Order exists to protect a producing party’s documents from prohibited uses, the Protective Order seems inapplicable to documents Open possessed before any production by the City, and before the Protective Order even issued. Case 1:21-cv-02063-DDD-NYW Document 64-8 Filed 06/17/22 USDC Colorado Page 3 of 6 3 If the City will waive the MPSA protections and permit the use of these 13 documents without restriction, we will re‐ produce our versions without confidentiality designations. Otherwise, we plan to proceed with our CORA request to obtain non‐confidential versions of all the memos. We’ll hold over our CORA request until tomorrow (Weds) afternoon so you can consider this compromise. Thank you again for conferring. Best, Paul 1. CFC_048449–048452 (Open_Intl_00000001‐04) 2. CFC_049536_049541 (Open_Intl_00034437‐00034442) 3. CFC_051888–051892 (Open_Intl_00034421‐00034425) 4. Open_Intl_00034551–00034555 5. CFC_052567–052568 (Open_Intl_00034413‐00034414) 6. Open_Intl_00034504–00034505 7. CFC_011766–011776 (Open_Intl_00034426‐00034436) 8. CFC_014220–014272 (Open_Intl_00034443‐00034495) 9. CFC_052417–052418 (Open_Intl_00034502‐00034503) 10. Open_Intl_00034496–00034497 11. Open_Intl_00034506–00034507 12. Open_Intl_00034498–00034501 13. Open_Intl_00034563–00034564 Paul D. Swanson Holland & Hart LLP | 303.295.8578 From: Alex D. White <ADWhite@hollandhart.com> Sent: Thursday, May 19, 2022 8:31 PM To: Wells.Wynter@dorsey.com; wechter.andrea@dorsey.com; collard.case@dorsey.com; Shoaei.Maral@dorsey.com; Starr.Stacy@dorsey.com Cc: Paul D. Swanson <PDSwanson@hollandhart.com>; Anna C. van de Stouwe <ACVanDeStouwe@hollandhart.com> Subject: RE: Response to 05/16/22 Ft. Collins v. Open ‐ Public Records Request Hi Andrea: Thank you for your letter dated May 18, 2022, responding to my email dated May 16, 2022. We disagree that the Scheduling Order and the Protective Order entered in this case govern this issue, because this is not about discovery. As your letter recognizes, we already have served written requests for production that encompass the narrow subset of documents targeted in our CORA request, and we already have confidential copies of the documents at issue. We therefore are not seeking supplemental or additional discovery outside of applicable discovery rules and limitations. Instead, the purpose of our CORA request, separate and apart from discovery in this case, is to obtain public access to these documents, which is precisely what CORA is for. Even if the Court in the pending litigation were the proper forum in which to seek public versions of the public records at issue (which it isn’t), we do not presently see an avenue by which to obtain public access through the Court. The documents identified in my May 16 email which bear Open’s Bates numbers were received under the confidentiality provisions of the Master Professional Services Agreement (“MPSA”), not the Protective Order, and we need the City’s agreement to waive that confidentiality protection. See MPSA § 7 & Exhibit D. The remainder of the documents Case 1:21-cv-02063-DDD-NYW Document 64-8 Filed 06/17/22 USDC Colorado Page 4 of 6 4 identified in my email, bearing the City’s Bates numbers, were designated confidential under the Protective Order, and we do not presently see a basis for challenging those designations under the terms of the Protective Order. But CORA provides a separate means of obtaining public versions of the documents, and nothing in CORA “limit[s] access to any records merely because a person is engaged in litigation with the public agency from which access to records is requested.” People in Interest of A.A.T., 759 P.2d 853, 854 (Colo. App. 1988). Moreover, requesting documents pursuant to CORA does not violate the no‐contact rule contained in Rule of Professional Conduct 4.2. See ABA Formal Ethics Op. 95‐396 (communications “authorized by law” under Model Rule 4.2 are those covered by a “statute . . . having the force and effect of law, that expressly allows a particular communication to occur in the absence of counsel”); Colo. R. Prof’l Conduct 4.2, Cmt. 5 (“Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a . . . legal right to communicate with the government.”); see also N.C. Ethics Op. 2011‐15 (applying “authorized by law” exception to permit contacts between represented public entity and opposing counsel under state freedom of information law); Va. Ethics Op. 1504 (stating it is “not improper for opposing counsel . . . to avail themselves of information available under that Act”). The cases referenced in your letter do not support the proposition that the Scheduling Order and Protective Order govern, or otherwise suggest that our CORA request is improper. The Citizens Center case is inapposite because the scheduling order in that case expressly limited the non‐government party’s ability to file CORA requests, whereas the Scheduling Order here contains no such limitation. Citizens Center v. Gessler, No. 12‐cv‐00370‐CMA‐MJW, 2012 U.S. Dist. LEXIS 98066, at *5–6 (D. Colo. July 16, 2012). Moreover, the Citizens Center court clarified that, even in the face of the scheduling‐order prohibition there, the party still could file CORA requests; it just couldn’t do so to obtain discovery in excess of the limitations set by the court in the scheduling order. Id. at *6–7. Here, as noted above, our CORA request is not being used for discovery at all, let alone discovery in excess of applicable limitations. The Martinelli case, likewise, dealt with the entirely distinct issue of whether the government can rely on CORA as a basis to withhold materials sought in discovery. Martinelli v. Dist. Ct. of Denver, 612 P.2d 1083, 1093 (Colo. 1980). The court concluded the government may not do so. Id. If anything, the Martinelli case, through its recognition that CORA is separate from discovery and governs the “entirely different situation of the general exploration of public records,” supports our position. See id. (citation omitted). For these reasons, our CORA request is proper. Nonetheless, before commencing the process of submitting our request, we reached out to you to see if we could avoid any unnecessary time and expense through a narrow agreement to remove confidentiality protections and permit public access to 17 specified documents. We also asked, as a courtesy, whether you would prefer to be the conduit for our CORA request to the City. If you’d like to take one of those two routes, please let us know by tomorrow morning. Otherwise, we will submit our CORA request through the portal, as planned, tomorrow afternoon. Finally, in response to your statement that you will seek a protective order in this litigation, we note that this would not be the proper procedural mechanism by which to challenge our CORA request. Colorado law requires “that any action filed either by the [CORA] custodian or the party requesting the [public] record be a separate, independent action in the appropriate [state] district court and that the action cannot be filed as part of any ongoing proceeding.” A.A.T., 759 P.2d at 855. Disputes concerning the accessibility of public records must be resolved through an independent action under C.R.S. §§ 24‐72‐204(5) or 24‐72‐204(6), or, in limited circumstances, an independent declaratory judgment action. Id.; Citizens Progressive Alliance v. Sw. Water Conservation Dist., 97 P.3d 308, 311–12 (Colo. App. 2004). Paul and I are available tomorrow morning to discuss, if you’d like to give us a call. Thanks, Alex Alex White Case 1:21-cv-02063-DDD-NYW Document 64-8 Filed 06/17/22 USDC Colorado Page 5 of 6 5 Holland & Hart LLP T 303.295.8517 F 303.296.4188 M 303.881.0402 From: Wells.Wynter@dorsey.com <Wells.Wynter@dorsey.com> Sent: Wednesday, May 18, 2022 4:51 PM To: Alex D. White <ADWhite@hollandhart.com>; Paul D. Swanson <PDSwanson@hollandhart.com>; Anna C. van de Stouwe <ACVanDeStouwe@hollandhart.com> Cc: wechter.andrea@dorsey.com; collard.case@dorsey.com; Shoaei.Maral@dorsey.com; Starr.Stacy@dorsey.com Subject: Response to 05/16/22 Ft. Collins v. Open ‐ Public Records Request External Email Mr. White: Attached is the City’s response to your records request demand. If you have any questions, please do not hesitate to contact our office. Sincerely, Wynter B. Wells Trial Legal Assistant Pronouns: She/Her/Hers DORSEY & WHITNEY LLP 1400 Wewatta Street Suite 400 | Denver, CO 80202‐5549 P: (303) 352‐1113 F: (303) 648‐6439 CONFIDENTIAL COMMUNICATION E‐mails from this firm normally contain confidential and privileged material, and are for the sole use of the intended recipient. Use or distribution by an unintended recipient is prohibited, and may be a violation of law. If you believe that you received this e‐mail in error, please do not read this e‐mail or any attached items. Please delete the e‐mail and all attachments, including any copies thereof, and inform the sender that you have deleted the e‐mail, all attachments and any copies thereof. Thank you. Please help reduce paper and ink usage. Print only if necessary. Case 1:21-cv-02063-DDD-NYW Document 64-8 Filed 06/17/22 USDC Colorado Page 6 of 6 ([KLELW9 Case 1:21-cv-02063-DDD-NYW Document 64-9 Filed 06/17/22 USDC Colorado Page 1 of 3 Case 1:21-cv-02063-DDD-NYW Document 64-9 Filed 06/17/22 USDC Colorado Page 2 of 3 Case 1:21-cv-02063-DDD-NYW Document 64-9 Filed 06/17/22 USDC Colorado Page 3 of 3 ([KLELW10 Case 1:21-cv-02063-DDD-NYW Document 64-10 Filed 06/17/22 USDC Colorado Page 1 of 3 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 June 8, 2022 VIA EMAIL 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 c/o John Duval City Attorney’s Office 300 Laporte Avenue PO Box 580 Fort Collins, CO 80522 Email: jduval@fcgov.com Re: Notice of Intent to File Application with District Court Pursuant to C.R.S. § 24-72-204(5)(a) Dear Mr. Duval: Thank you for your letter sent via email on May 31, 2022, in response to our May 25, 2022 public records request under the Colorado Open Records Act (“CORA”), Colo . Rev. Stat. § 24- 72-201 et seq. I am writing to you to provide notice, as required by C.R.S. § 24-72-204(5)(a), of our intent to apply to the district court for an order directing the custodians to show cause why the custodians should not permit inspection of the records we requested. Case 1:21-cv-02063-DDD-NYW Document 64-10 Filed 06/17/22 USDC Colorado Page 2 of 3 June 8, 2022 Page 2 Your letter denies our CORA request under C.R.S. § 24-72-204(1)(c), based on the September 16, 2021 Scheduling Order (“Scheduling Order”) and October 14, 2021 Stipulated Protective Order (“Protective Order”) entered in Civil Action No. 21-cv-02063-DDD-NYW, currently pending in the United States District Court for the District of Colorado. As we have previously explained in detail to the City of Fort Collins’s outside litigation counsel, we see nothing in the Scheduling Order or the Protective order that prohibits a CORA request, nor are we engaged in litigation discovery. Accordingly, we intend to challenge the denial of our CORA request in conformance with C.R.S. § 24-72-204(5)(a). The custodians have fourteen (14) days in which to complete the conferral required by § 24-72-204(5)(a). Please provide available dates and times for a conferral at your earliest convenience. Respectfully submitted , Alexander D. White HOLLAND & HART LLP cc: Paul D. Swanson (pdswanson@hollandhart.com) Anna van de Stouwe (acvandestouwe@hollandhart.com) Case Collard (collard.case@dorsey.com) Andrea Wechter (wechter.andrea@dorsey.com) Maral Shoaei (shoaei.maral@dorsey.com) Travis Storin (tstorin@fcgov.com) Kevin Wilkins (kwilkins@fcgov.com) Chad Crager (ccrager@fcgov.com) Theresa Connor (tconnor@fcgov.com) Tamm i Pusheck (tpusheck@fcgov.com) Case 1:21-cv-02063-DDD-NYW Document 64-10 Filed 06/17/22 USDC Colorado Page 3 of 3