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Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 066 - City Mot Restrict Access W ExhibitIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 21-cv-02063-DDD-NYW CITY OF FORT COLLINS, Plaintiff/Counterclaim Defendant, v. OPEN INTERNATIONAL, LLC Defendant/Counterclaim Plaintiff, and OPEN INVESTMENTS, LLC, Defendant. PLAINTIFF CITY OF FORT COLLINS’S MOTION TO RESTRICT ACCESS The City of Fort Collins (the “City”), by and through its undersigned counsel, respectfully submits a redacted version of Defendants Open International, LLC and Open Investments, LLC’s (collectively, “Defendants”) Response in Opposition to the City’s Motion to Quash Subpoena on Vanir and for Protective Order [Dkt. 54] and moves this Court to maintain Level 1 restriction on Exhibits 1 through 2 attached thereto [Dkt. Nos. 54-1 and 54-2] and the related portions of the Response [Dkt. No. 54] referencing the same (collectively, the “Restricted Documents”). CERTIFICATION PURSUANT TO D.C.COLO.L.CivR 7.1 Undersigned counsel conferred via email with counsel for Defendants. Defendants oppose the relief requested herein. Case 1:21-cv-02063-DDD-NYW Document 66 Filed 06/22/22 USDC Colorado Page 1 of 8 2 ARGUMENT 1. On May 27, 2022 the City filed its Motion to Quash Defendants’ Subpoena on Vanir Construction Management, Inc. and for Protective Order (“Motion to Quash”) [Dkt. No. 45] at Level 1 access. 2. On June 8, 2022, Open filed its Response in Opposition to the City’s Motion to Quash (“Response”) [Dkt. No. 54], with supporting exhibits at Level 1 access. 3. Pursuant to D.C.COLO.LCivR 7.2, the City hereby moves to retain Level 1 restriction to Exhibits 1 and 2 attached to the Response [Dkt. Nos. 54-1 and 54-2] and further submits a proposed redacted version of the Response [Dkt. No. 54] that removes any references to confidential material contained in Exhibits 1-2. 4. The City requests Level 1 restriction to the Restricted Documents, limiting access to the parties and Court. Good cause exists to restrict public access to the Restricted Documents as the documents refer to and consist of confidential strategic and business information, including that of third-parties. Additionally, the City notes that Exhibits 1 and 2 have been deemed “Confidential” pursuant to the parties’ Stipulated Protective Order, entered on October 14, 2021 [Dkt. No. 32]. 5. Exhibit 1 to the Response [Dkt. No. 54-1] is a copy of a Services Agreement, stamped as Confidential, entered into between Vanir (a third party) and the City, which contains detailed and confidential terms and a description of the scope of work to be performed. As noted in the Project Management Plan attached as Ex. D to the Motion to Quash, “[t]he contract with the City was executed in late December 2019 including an NDA that limits discussion of this project and the proprietary nature of the OSF platform outside of Vanir project and management team members.” Ex. D to Mot. at CFC_012911. The Agreement is not publicly available and contains Case 1:21-cv-02063-DDD-NYW Document 66 Filed 06/22/22 USDC Colorado Page 2 of 8 3 the sensitive commercial information of third parties (with a Confidentiality section, Exhibit C to Services Agreement), such as the compensation to be provided to Michelle Frey of Vanir, including Dr. Frey’s hourly rate, the labor budget, budget for miscellaneous expenses and hours budget (see Exhibit 1, [Dkt. 54-1] at 9), a thorough description of the scope of services and tasks required by the City for that compensation (see Exhibit A to Agreement, Scope of Services), and it implicates the City’s liability assessment strategy (Exhibit 1, [Dkt. 54-1] at 8 (“Task 1”)). The Services Agreement further reveals the City’s internal operations and strategies regarding the project (Exhibit A to Services Agreement). Public disclosure of the Services Agreement would further harm the interests of third parties, Vanir and Dr. Frey, by providing competitors an advantage with knowledge of the terms it was able to contract with (harming their competitive interests and standing) and would likewise harm the City and Vanir by disclosing confidential terms of an agreement not publicly available that extensively discusses the City’s operations and strategies, the third party’s scope of work, including its assistance with liability assessment strategy, and revealing to other potential contractors the terms and salary the City will contract for. See Brill v. Correct Care Sols., LLC, Civil Action No. 16-cv-03078-WJM-NYW, 2018 U.S. Dist. LEXIS 240409, at *6 (D. Colo. Mar. 5, 2018) (granting motion to restrict professional services agreement where it was not otherwise publicly available and where dissemination of proprietary business information within could give competitors an unfair advantage); Cahey v. IBM, Civil Action No. 20-cv-00781-NYW, 2021 U.S. Dist. LEXIS 212793, at *4-5 (D. Colo. Apr. 2, 2021) (internal compensation structure was confidential and proprietary, the disclosure of which would harm the party seeking to restrict access); Platt v. Freedom Mortg. Corp., No. 10-968 (RBK/KMW), 2013 U.S. Dist. LEXIS 175032, at *31 (D.N.J. Dec. 10, 2013) (little public interest would be served by disclosing personal information like salary, and non-party in particular had Case 1:21-cv-02063-DDD-NYW Document 66 Filed 06/22/22 USDC Colorado Page 3 of 8 4 privacy interest in such information); Markley v. United States Bank Nat'l Ass'n, Civil Action No. 19-cv-01130-RM-NYW, 2021 U.S. Dist. LEXIS 213922, at *10-12 (D. Colo. Sep. 14, 2021) (recognizing that greater protections may be afforded to the confidential information of non- parties); SBM Site Servs., LLC v. Garrett, Civil Action No. 10-cv-00385-WJM-BNB, 2011 U.S. Dist. LEXIS 41527, *9 (D. Colo. Apr. 12, 2011) (granting motion to restrict “business materials containing information that may be confidential” because it could harm litigant’s competitive standing); Hershey v. ExxonMobil Oil Corp., 550 F.App’x 566, 574 (10th Cir. 2013) (information which "could harm the competitive interests of third parties" may be properly restricted); All Plastic, Inc. v. SamDanLLC, 2021 U.S. Dist. LEXIS 212799, at *6-7 (D. Colo. Sept. 27, 2021) . The interests sought to be protected—of both the City and non-litigants Vanir and Dr. Frey, outweigh the presumption of public access to the Services Agreement in connection with a motion to quash a subpoena based on the City’s assertions of privileges. 6. Exhibit 2 to the Response [Dkt. No. 54-2] is a copy of email correspondence, in Spanish, between Open employees. As the email is provided and attached in Spanish, not only does the City not know the contents of the email, meaning it could be a misrepresentation of what the City did or did not do during the project, this cuts against the benefits of providing it for public view. See Cooper v. Instant Brands, Inc., Civil Action No. 18-cv-02611-MSK-STV, 2020 U.S. Dist. LEXIS 29836, at *7 (D. Colo. Feb. 21, 2020) (granting motion to restrict and finding that “[b]ecause the Court cannot read [document provided in foreign language], it cannot have based its findings on the content of that document . . .” and “the public interest in access to the document is low.”). Moreover, it seems to disclose financials or the like and should not be made public. Finally, as a communication by Open’s representatives, this email (whether or not in Spanish) can have no bearing on any determination to quash Open’s subpoena to Vanir based on the City’s Case 1:21-cv-02063-DDD-NYW Document 66 Filed 06/22/22 USDC Colorado Page 4 of 8 5 assertion of its privileges and this Court is unlikely to rely on Dkt. 54-2 in determining whether the City’s privilege assertions should stand. Contra, Colo. Access v. Atl. Specialty Ins. Co., 2022 U.S. Dist. LEXIS 76794, at *5-6 (D. Colo. Apr. 22, 2022) (court disinclined to restrict documents that are “substantially relied upon in summary judgment briefing”). Accordingly, the interests sought to be protected outweigh any presumption of public access. 7. Redaction of the supporting exhibits is not a reasonable or practical alternative because they contain extensive confidential information and such redactions would obscure the meaning of the documents. See L-3 Communs. Corp. v. Jaxon Eng'g & Maint., Inc., 125 F. Supp. 3d 1155, 1188 (D. Colo. 2015) (documents were not amenable to redaction where “nearly all of their content would be obscured”). Moreover, specifically as to Exhibit 2, because it is a foreign language document, the City does not know how or what to redact in order to preserve confidentiality. However, the City submits herewith as Exhibit A, a redacted version of the Response as such redactions do not meaningfully or substantially alter the Response. 8. In addition to references to Exhibits 1 and 2, the Response contains a direct reference to confidential Vanir memoranda Open attached to a wholly unrelated motion to compel production of TMG documents from the City. Opp. [Dkt. 54] at 3 (referencing “May 24, 2022 Motion to Compel, Exs. 1 & 2”). The City separately sought to restrict those exhibits and related content of the Motion to Compel in Dkts 53 (Motion to Restrict) and Dkt. 62 (Reply). For the reasons set forth therein (including the deliberative privilege concerns), the submission in Exhibit A includes redaction of a line of the Response referencing the exhibits to the Motion to Compel. See Exhibit A at 3. 9. Similarly, the Response references the Project Management Plan between the City and Vanir, previously attached as Exhibit D to the Motion to Quash. Because the City previously Case 1:21-cv-02063-DDD-NYW Document 66 Filed 06/22/22 USDC Colorado Page 5 of 8 6 moved to restrict Exhibit D [Dkt. 50], the submission in Exhibit A also includes redaction of a line of the Response citing the same. See Exhibit A at 7. CONCLUSION Wherefore, the City respectfully requests that the Court enter the redacted Response, attached hereto as Exhibit A, as well as an Order granting Level 1 restricted access to the Response’s Exhibits 1-2 [Dkt. Nos. 54-1 through 54-2] and for such further relief as this Court deems just and proper. Respectfully submitted this 22nd 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 66 Filed 06/22/22 USDC Colorado Page 6 of 8 7 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 1,498 words. s/ Andrea Ahn Wechter Case 1:21-cv-02063-DDD-NYW Document 66 Filed 06/22/22 USDC Colorado Page 7 of 8 8 CERTIFICATE OF SERVICE I hereby certify that on June 22, 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/ Stacy Starr Dorsey & Whitney LLP Case 1:21-cv-02063-DDD-NYW Document 66 Filed 06/22/22 USDC Colorado Page 8 of 8 Exhibit A Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 2021-cv-02063-DDD-NYW CITY OF FORT COLLINS, Plaintiff and Counter-Defendant, vs. OPEN INTERNATIONAL, LLC, OPEN INVESTMENTS, LLC. Defendants and Counterclaimant. OPEN’S RESPONSE IN OPPOSITION TO THE CITY’S MOTION TO QUASH SUBPOENA ON VANIR AND FOR PROTECTIVE ORDER Defendants and Counterclaimant Open International, LLC and Open Investments, LLC (together, “Open”) hereby submit this response in opposition to Plaintiff and Counter-Defendant City of Fort Collins’s (the “City”) Motion to Quash Defendants’ Subpoena on Vanir Construction Management, Inc. (“Vanir”) and for Protective Order (the “Motion”).1 INTRODUCTION Once again, the City improperly invokes privilege in an effort to wall off discovery that deeply damages its case. In this instance, the City asks to quash “in its entirety” Open’s subpoena to Vanir, which the City engaged in 2019 to independently consult on the software- implementation project at the center of this case. Although the case didn’t begin till 2021, the 1 The Motion was filed under Level 2 restriction, meaning counsel for Open could not directly view the Motion, and Open was not served with the Motion through the CM/ECF system. Counsel for Open are relying on a copy of the Motion and four accompanying exhibits provided by the City. Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 1 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 2 of 16 -2- City argues that the subpoena targets materials prepared in anticipation of the litigation. The City also contends that its communications with Vanir, a third party, may nonetheless be privileged because Vanir functioned like a City employee, but this ignores the City’s express agreement that Vanir was not, and would not perform the functions of, an employee. The City cannot make even a plausible argument for privilege with this third party, let alone the requisite detailed factual showing. Even so, to avoid a dispute, Open offered to provide Vanir with a list of City legal personnel whose documents and communications could be withheld from Vanir’s production before being reviewed by the City, then either logged or produced. As a failsafe, Open affirmed it would comply with the claw-back procedure in Rule 45(e)(2)(B) by which parties may assert privilege over third-party documents. But the City rejected this compromise and insisted on pre- reviewing all Vanir’s documents and taking control of the production. Open could not agree to that time-consuming process, which would undermine the independence of its Rule 45 subpoena. Beyond quashing for privilege, the City seeks a blanket protective order because it says the subpoena unduly burdens Vanir. This puzzling request conflicts with the City’s assurance that it has “no objection to Vanir producing non-privileged information.” The request also is not the City’s to make. Vanir, which principally used its own email addresses and servers for the project, likely has unique documents subject to Open’s subpoena, and its independent counsel has agreed to review and produce those documents. The City lacks standing to seek a protective order against a subpoena on a third party’s behalf, especially when the third party is cooperating. Without a plausible legal argument or any factual showing, the City seeks to entirely suppress essential third-party discovery from Vanir. The City’s Motion should be denied. Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 2 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 3 of 16 -3- FACTUAL BACKGROUND The City’s purchasing director retained Vanir’s services in December 2019 to support the City’s implementation of a utilities-billing software system with Open. See Exhibit 1 (the “Services Agreement”) at 1, 6. The City agreed that Vanir was to perform the Id. at 2 ¶ 8. Accordingly, Vanir’s employees principally utilized Vanir email addresses under Vanir’s control throughout the project.2 The “Vanir team” was assigned discrete tasks and deliverables to drive the project toward successful completion. Id. at 7-8. Ex. 1 at 8. 2 The City makes much of the fact that one Vanir employee, Andrew Amato, received a City email address. Mot. 2, 7. This is a red herring. The City does not assert that Mr. Amato used that City email address because he barely did, using his Vanir address almost exclusively. See Export-Import Bank of U.S. v. Asia Pulp & Paper Co., 232 F.R.D. 103, 113 (S.D.N.Y. 2005) (disregarding fact that consultant had an office on defendant’s premises, because defendant did not assert consultant used the office). Vanir’s initial project consultant, Michelle Frey, also used her Vanir email address exclusively. Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 3 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 4 of 16 -4- PROCEDURAL BACKGROUND The City initiated this lawsuit in July 2021, more than 18 months after it engaged Vanir. In its Rule 26(a)(1) disclosures, the City identified two Vanir employees, Dr. Frey and Andrew Amato, and provided contact information for the City’s lawyers if Open wished to contact these third parties. When challenged, the City’s counsel asserted that Dr. Frey and Mr. Amato—but no other Vanir employee—were the “functional equivalents” of City employees and that counsel was “in the process of confirming whether” they would represent Dr. Frey and Mr. Amato. Ex. D to Mot., at 3. Thereafter, the City supplemented its disclosures to provide personal contact information for both individuals. See Exhibit 3 at 3 (City’s supplemental disclosures).3 During the parties’ exchange of written discovery, Open propounded a single discovery request concerning Vanir’s work on the Project. In its responses served November 29, 2021, the City interposed various standard objections but agreed to produce non-privileged documents “to the extent they are within the City’s possession, custody, or control after a reasonable search.” Ex. B to Mot., at 14-15. The City did not indicate what, if any, materials it was withholding on the basis of its objections. Id. On April 27, 2022, Open served a third-party document subpoena on Vanir. See Ex. C. to Mot. In contrast to the single Vanir-related request to the City, Open’s subpoena contains seven tailored requests for Vanir, only one of which encompasses, in part, documents that logically should be in the City’s possession, too. Id. at 4 (Request No. 5, seeking “Dr. Frey’s . . . email communications with the City concerning [her] recommendations”). The other requests 3 The City again supplemented its Rule 26 disclosures on April 22, 2022 to reinsert its counsel’s contact information for Dr. Frey and Mr. Amato, but Vanir has since engaged its own counsel to respond to Open’s April 27 subpoena. Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 4 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 5 of 16 -5- seek documents that Vanir may uniquely possess. After receiving the subpoena, Vanir’s counsel contacted Open’s counsel to obtain a series of short extensions while Vanir collected and reviewed documents responsive to the subpoena. While Vanir prepared its response, the City requested to stay the subpoena indefinitely so that the City could pre-review all Vanir documents. Although Open disputes that any privilege applies, to avoid costly motion practice, Open proposed a compromise: the parties would provide a list of legal personnel to Vanir so that communications with those individuals could be segregated for the City’s pre-review. Meanwhile, Vanir could produce the balance of the responsive documents in its possession, and in the unlikely event the production included a privileged document, the City could invoke Rule 45(e)(2)(B) to claw it back. The City refused anything less than full pre-review rights and, instead, filed this Motion. ARGUMENT The City asks this Court to “quash the Subpoena in its entirety,” Mot. 6, and to issue a coextensive protective order, id. at 10-12. But the City’s unsubstantiated privilege arguments do not justify any modification of the subpoena, let alone outright quashing. Nor do the City’s objections on behalf of Vanir warrant protection against the subpoena since those are Vanir’s objections to make and Vanir is cooperating. I. THE CITY HAS NOT ESTABLISHED THAT THE ATTORNEY-CLIENT PRIVILEGE APPLIES. “The attorney-client privilege is established by the act of a client seeking professional advice from a lawyer and extends only to confidential matters communicated by or to the client in the course of gaining counsel, advice, or direction with respect to the client’s rights or obligations.” Curtis Park Grp., LLC v. Allied World Specialty Ins. Co., 2021 U.S. Dist. LEXIS Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 5 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 6 of 16 -6- 49917, at *12 (D. Colo. Mar. 17, 2021) (quotations omitted). The privilege “protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” Am. Ins. Co. v. Pine Terrace Homeowners Ass’n, 2021 U.S. Dist. LEXIS 97203, at *5 (D. Colo. May 21, 2021). Disclosing a privileged communication to a third party presumptively waives the privilege. Id. at *6. That presumption holds unless the third party is “so thoroughly integrated into [the client’s] corporate structure” that they should be treated as the functional equivalent of an employee for privilege purposes. Export-Import Bank of U.S. v. Asia Pulp & Paper Co., 232 F.R.D. 103, 113 (S.D.N.Y. 2005). Because Vanir and its employees were neither attorneys nor clients of the City’s litigation or in-house counsel, the City hangs its privilege arguments on the functional-equivalent exception. See Mot. 6-9.4 For this, the City “bears the burden of establishing its applicability” by making “a detailed factual showing that the non-employee is the functional equivalent of an employee and that the information sought from the non-employee would be subject to the attorney client-privilege if he were an employee of the party.” A.H. v. Evenflo Co., 2012 U.S. Dist. LEXIS 76100, at *3, *13-14 (D. Colo. May 31, 2012) (emphasis added). The City’s Motion falls short of establishing that any particular Vanir employee—let alone all Vanir employees—was the functional equivalent of a City employee for privilege purposes. Indeed, the City has not made a “detailed factual showing” of any sort. The privilege 4 In passing, the City mentions the deliberative-process privilege, but that privilege presupposes that the deliberation at issue is between government officials, not between officials and third- party consultants, and the City’s lone authority applies the privilege to a Freedom of Information Act request filed with a federal agency, not to a litigation subpoena served on a private third party. Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 6 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 7 of 16 -7- discussion in the Motion contains various generic and conclusory statements of counsel, but it is conspicuously light on facts. See Mot. 6-9. The City submitted no affidavits or declarations or communications—none of the record materials that courts require for the necessary “detailed factual showing.” See, e.g., Evenflo, 2012 U.S. Dist. LEXIS 76100, at *11-12 (relying on affidavit and in camera review of communications); Alliance Constr. Sols., Inc. v. Dept. of Corr., 54 P.3d 861, 870-71 & n.6 (Colo. 2002) (relying on multiple affidavits); FTC v. GlaxoSmithKline, 294 F.3d 141, 147-48 (D.C. Cir. 2002) (relying on affidavit); Energy Capital Corp. v. United States, 45 Fed. Cl. 481, 492 (Fed. Cl. 2000) (describing “very detailed” affidavits needed to make requisite showing based on seminal functional-equivalent case law). Instead, the sole evidentiary basis for the City’s privilege claim is a Project Management Plan (the “Plan”) which Vanir prepared in March 2020 and disseminated to the City and Open alike. See Mot. 6-9 (citing Ex. D to Mot.). This single document is not enough even to provide a plausible basis for privilege that would necessitate the time-intensive process of producing and challenging a privilege log. See Horton v. United States, 204 F.R.D. 670, 672 (D. Colo. 2002) (party’s submission of contract with third-party was not sufficient to make requisite detailed factual showing). id. at 13. The Motion offers no explanation for why the City and Vanir would need a detailed protocol to communicate with each other—or why Vanir would principally use its independent email addresses—if Vanir functionally was the City. Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 7 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 8 of 16 -8- While the Plan does not support the City’s privilege claim, the Services Agreement directly contradicts it. See Asia Pulp, 232 F.R.D. at 113-14 (rejecting functional-equivalent status even for consultant who “spent eighty to eighty-five percent of his time” on work for the party) In other words, Vanir was engaged to perform different work than City employees perform. By word and deed, Vanir and its employees were third parties and were not so thoroughly integrated into the City’s governmental structure that they can be treated as City employees. Finally, and critically, even if the City had demonstrated that Vanir’s employees were sufficiently integrated, the City’s privilege claim still would fail because the City did not (and cannot) establish that Vanir was engaged to work with the City’s attorneys and to assist them in providing legal advice related to this litigation. See Pine Terrace, 2021 U.S. Dist. LEXIS 97203, at *9-14. This fact distinguishes every case the City relies on: • In Evenflo, the public relations firm at issue was hired specifically to work with the party’s counsel and advise the party’s counsel on a recall campaign for the defective product underlying the product-liability claims in the case. 2012 U.S. Dist. LEXIS 76100, at *11-12. Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 8 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 9 of 16 -9- • In FTC v. GlaxoSmithKline, the public relations and government affairs consultants at issue were hired by GSK specifically to assist with the FTC’s investigation into GSK and work with GSK’s counsel on GSK’s litigation and legal strategies. 294 F.3d at 148; see also 12W RPO, LLC v. Victualic Co., 2017 U.S. Dist. LEXIS 229524, at *16-17 (D. Or. Mar. 7, 2017) (summarizing application of privilege in GlaxoSmithKline). • In CoorsTek, the consultant was “specifically hired” to work “in conjunction with [the party’s] patent attorneys” on the patents at issue in the lawsuit. CoorsTek, Inc. v. Reiber, 2010 U.S. Dist. LEXIS 42594, at *4, *16 (D. Colo. Apr. 5, 2010). • And in Alliance Construction, the consultant “educated [defendant]’s counsel on conditions at the site, visited the site with counsel, . . . served as counsel’s primary contact on many of the specific issues involved in the litigation,” and “was the primary source of information on which [defendant’s] legal decisions were made.” 54 P.3d at 870. The same is not true of Vanir. To the contrary, Vanir is no different than the independent contractors to which the Pine Terrace court declined to extend functional-equivalent privilege. In that case, which cited and applied the functional-equivalent exception from Evenflo, the court first held that one of the party’s contractors should be treated as the functional equivalent of an employee for privilege purposes because its “entire reason and justification for interacting at all” with the party and its attorneys was the legal proceeding and underlying claim, and it played “a pivotal role in the decision-making process with respect to the litigation.” 2021 U.S. Dist. LEXIS 97203, at *9. The court then concluded that the party’s other contractors were not entitled to the same treatment because they were engaged in the ordinary course of business. Id. Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 9 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 10 of 16 -10- at *10-13. Like those other contractors in Pine Terrace, Vanir entered into its agreement with the City “long before any litigation was anticipated” and for the purpose of performing non- legal, non-litigation-related business services. See id. at *10-12. Vanir’s contract “never mentions [Vanir] working with the [City’s] attorneys on [the City’s] claims or during any potential litigation”—there is “no mention in the contract that [Vanir] will be required to work with any attorney.” Id. at *11. As the Plan and Services Agreement (and the underlying facts) make clear, Vanir’s work for the City was part of the City’s ordinary “business activity,” and the City “cannot cloak with privilege conduct and communications that necessarily and normally would have occurred in the context of its non-legal business operations.” Curtis Park, 2021 U.S. Dist. LEXIS 49917, at *17-18. “If the functional equivalent doctrine were extended to every situation where a . . . consultant worked exhaustively to guide a company,” as the City asserts here, “the exception would swallow the basic rule . . . that there is no privilege protecting communications between clients” and their third-party service providers. See Asia Pulp, 232 F.R.D. at 114. Because the City has not carried and cannot carry its burden, the Court should reject the City’s privilege assertion outright. II. THE CITY HAS NOT ESTABLISHED THAT WORK PRODUCT PROTECTION APPLIES. “The work product doctrine exempts from discovery documents and tangible things prepared in anticipation of litigation or for trial,” Pine Terrace, 2021 U.S. Dist. LEXIS 97203, at *15 (quotations and ellipsis omitted), and “is intended only to guard against divulging the attorney’s strategies and legal impressions,” id. at *16 (quoting Resolution Tr. Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995)). Accordingly, the work product doctrine does not protect Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 10 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 11 of 16 -11- materials prepared in the ordinary course of business or that would have been created irrespective of the litigation. Id. at *17. Rather, “the central inquiry in resolving work product questions” is “whether anticipated litigation is the driving force behind the preparation of each requested document.” McCall v. Skyland Grain, LLC, 2009 U.S. Dist. LEXIS 41034, at *17 (D. Colo. Apr. 29, 2009). The party challenging a subpoena on the basis of work-product protection carries the burden of “clearly showing” that the protection applies. Curtis Park, 2021 U.S. Dist. LEXIS 49917, at *16. Here, the City’s entire argument as to work product consists of six conclusory sentences from counsel, unsupported by affidavit or record evidence of any type. See Mot. 9-10. The City offers no basis upon which the Court can conclude that any document responsive to the subpoena contains the litigation strategy or opinions of an attorney and “would not have been created but for the prospect of litigation.” L-3 Commc’ns Corp. v. Jaxon Eng’g & Maint., Inc., 2014 U.S. Dist. LEXIS 103157, at *16 (D. Colo. Jul. 29, 2014). The City has made no showing at all—let alone a “clear showing”—that work product protection applies. See Curtis Park, 2021 U.S. Dist. LEXIS 49917, at *16 (rejecting claim of work-product over materials responsive to subpoena where challenging party presented “no non-conclusory evidence suggesting that [the consultant’s work] was primarily or predominantly done ‘in anticipation of litigation.’”). Nor, for that matter, could the City have made the requisite showing. It engaged Vanir in December 2019—more than a year and a half before this litigation began. See Ex. 1 at 1. The City set Vanir’s engagement to end in late 2020, eight months before this litigation. See Id. Nothing in Vanir’s Services Agreement (or its Project Management Plan) mentions any pending Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 11 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 12 of 16 -12- disputes, let alone litigation. See generally Ex. 1; Ex. D to Mot. Rather, Vanir’s role was to assist in managing the Project and ushering it toward successful completion. Litigation was not the “driving force” of Vanir’s work. Vanir consulted the City in the ordinary course of the City’s implementation of a billing system. The City has failed to carry its burden of establishing that work product protection applies to any documents responsive to the subpoena. III. THERE IS NO BASIS TO QUASH THE SUBPOENA “IN ITS ENTIRETY” OR TO ENTER A PROTECTIVE ORDER BARRING ALL VANIR DISCOVERY. The City acknowledges that it lacks standing to challenge the subpoena any basis other than privilege, and the City says it does “not object to Vanir’s production of non-privileged information.” Mot. 4-5. Nonetheless, the City asks the Court to “quash the subpoena in its entirety,” id. at 6, and seeks an all-encompassing protective order under Rule 26, id. at 10-12. For the reasons explained above, the City has failed to establish that the subpoena should be modified, let alone thrown out, on the basis of privilege or work product protection. But even if the City had carried its burden as to those specific protections, there still would be no basis to bar all discovery from Vanir. “A party has no standing to quash a subpoena served on a third party, except as to claims of privilege or upon a showing that a privacy issue is implicated.” E.g., Malibu Media, LLC v. Doe, 2013 U.S. Dist. LEXIS 346, at *4-5 (D. Colo. Jan. 2, 2013). “Objections unrelated to a claim of privilege or privacy interest are not proper bases upon which a party may quash a subpoena,” and even where a party has standing to challenge a subpoena based on privilege, the party nonetheless lacks standing to object for other reasons. Id. at *5-6; see also Howard v. Segway, Inc., 2012 U.S. Dist. LEXIS 99431, at *5 (D. Kan. July 18, 2012) (“Even where a party Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 12 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 13 of 16 -13- has standing to quash a subpoena based on privilege or personal right, it still lacks standing to object on the basis of undue burden.”). Thus, a party cannot move to quash or obtain a protective order except to the limited extent its privilege or other personal interests are implicated. E.g., Sports Rehab Consulting LLC v. Vail Clinic, Inc., 2022 U.S. Dist. LEXIS 93534, at *14 (D. Colo. Mar. 30, 2022) (“Plaintiffs have labeled the motion as one requesting a protective order, but in actuality, it is a motion to quash Defendant’s subpoenas to third parties [under Rule 45].”); EEOC v. Original Honeybaked Ham Co. of Ga., Inc., 2012 U.S. Dist. LEXIS 37107, at *4-6 & *5 n.1 (D. Colo. Mar. 19, 2012) (construing motion for protective order as motion to quash under Rule 45, and concluding party had “limited standing” to raise its objections because they related to privacy interest). Other than privilege, the City does not assert that the subpoena poses any harm or burden to the City. The City’s objection that responding to the subpoena would be duplicative, expensive, and therefore unduly burdensome is not the City’s objection to make.5 Objections about burden belong to the third party. Here, Open has every reason to believe that Vanir possesses highly relevant materials not reasonably available from another source. The subpoena is properly tailored to reach those unique materials, Open is cooperating with Vanir to minimize burden, and Vanir stands ready and willing to produce responsive documents. The Court should 5 It also is incorrect. Since Vanir largely used its own email addresses and servers for the project, its response to Open’s seven subpoena requests is likely to garner more and different information than the City’s response to Open’s single request for production. In any event, the City’s conclusory objections wouldn’t suffice even if the City had a personal interest in the burden associated with the subpoena. See Ark. River Power Auth. v. Babcock & Wilcox Power Generation Grp., Inc., 2015 U.S. Dist. LEXIS 59361, at *44 (D. Colo. May 5, 2015) (requiring objection with “a particular and specific demonstration of fact,” not “stereotyped and conclusory statements”). Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 13 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 14 of 16 -14- deny the City’s unjustified request to quash the subpoena in its entirety and for a protective order. CONCLUSION The City has failed to establish any basis for quashing or otherwise limiting Open’s third- party subpoena to Vanir, except to protect itself from highly relevant and deeply damaging discovery. Accordingly, the Court should deny the City’s Motion. Dated: June 8, 2022 Respectfully submitted, s/ Paul D. Swanson Paul D. Swanson, pdswanson@hollandhart.com Anna van de Stouwe, acvandestouwe@hollandhart.com Alexander D. White, adwhite@hollandhart.com Holland & Hart LLP 555 17th Street, Suite 3200 Denver, Colorado 80202 Telephone: 303-295-8000 Attorneys for Defendants Open International, LLC and Open Investments, LLC CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing pleading complies with the type-volume limitations set forth in Judge Domenico’s Practice Standard III(A)(1). This brief contains 3,926 words. s/ Paul D. Swanson Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 14 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 15 of 16 -15- CERTIFICATE OF SERVICE I hereby certify that on the 8th day of June, 2022, the foregoing was electronically filed with the Clerk of Court using the Court’s electronic filing system and that a copy of the foregoing was sent to all counsel of record via same in compliance with the Federal Rules of Civil Procedure and the Local Rules of this Court. s/ Paul D. Swanson Case 1:21-cv-02063-DDD-NYW Document 54 Filed 06/08/22 USDC Colorado Page 15 of 15Case 1:21-cv-02063-DDD-NYW Document 66-1 Filed 06/22/22 USDC Colorado Page 16 of 16