HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 069 - City Mot Restrict W ExhibitIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 21-cv-02063-DDD-NYW
CITY OF FORT COLLINS,
Plaintiff/Counterclaim Defendant,
v.
OPEN INTERNATIONAL, LLC
Defendant/Counterclaim Plaintiff,
and
OPEN INVESTMENTS, LLC,
Defendant.
PLAINTIFF CITY OF FORT COLLINS’S MOTION TO RESTRICT ACCESS
The City of Fort Collins (the “City”), by and through its undersigned counsel, respectfully
submits a redacted version of the City’s Response in Opposition to Open’s Motion to Compel
Production of TMG Documents [Dkt. No. 58] and moves this Court to maintain Level 1 restriction
on Exhibits E-G attached thereto [Dkt. Nos. 58-5 through 58-7 and the related portions of the
Response [Dkt. No. 58] 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.
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ARGUMENT
1.On May 24, 2022, Open filed its Motion to Compel Production of TMG Documents
(“Motion to Compel”) [Dkt. No. 43] at Level 1 access.
2.On June 14, 2022, the City filed its Response in Opposition to the City’s Motion to
Compel (“Response”) [Dkt. No. 58], 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 E-G attached to the Response [Dkt. Nos. 58-5 through 58-7] and further
submits a proposed redacted version of the Response [Dkt. No. 58] removing references to
confidential material contained in Exhibits E-G.
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 E-G have been deemed
“Confidential” pursuant to the parties’ Stipulated Protective Order, entered on October 14, 2021
[Dkt. No. 32].
5.The Restricted Documents are substantially related, as they all comprise part of the
City’s contractual obligations with TMG under a Services Agreement entered into in January 2021.
Exhibit E to the Response [Dkt. No. 58-5, CFC_094980] is a copy of the Services Agreement,
stamped as Confidential, entered into between third-party TMG and the City. The Agreement is
not publicly available and contains the sensitive commercial information of third parties (with a
Confidentiality section and Mutual Non-Disclosure Agreement, see Exhibit D to Services
Agreement [Ex. E at 11-17]), including the hourly rate of compensation for TMG consultant Greg
Galluzi (see Ex. E at 2-3). Public disclosure of Exhibit E would harm the interests of a third party,
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TMG, 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
TMG by disclosing confidential terms of an agreement that is not publicly available and by
notifying potential contractors of the rates the City is willing to pay. 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 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).
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6. Exhibit F to the Response [Dkt. No. 58-6, CFC_094994] is a Work Order executed
in April 2021 as part of the Services Agreement between TMG and the City. The Work Order
summarizes the business needs of the City and extensively discusses the scope of work and
services to be performed by TMG, including its Project Management Services, provisions for
issue/problem management, cost-budget management, and risk management (Ex. F at 3-11), and
the amounts to be paid by the City for TMG’s services and the monthly hours expectation for the
Project Manager (Ex. F at 1, 11-12). Like the underlying Services Agreement, disclosure of these
confidential terms would harm the competitive standing of a third party by revealing its
confidential terms and conditions, and would harm the City by revealing to other potential
contractors the terms and salary the City will contract for. See Brill, 2018 U.S. Dist. LEXIS
240409, at *6; Cahey, 2021 U.S. Dist. LEXIS 212793, at *4-5; Platt, 2013 U.S. Dist. LEXIS
175032, at *31.
7. Exhibit G to the Response [Dkt. No. 58-7, CFC_094983) is the Statement of Work
accompanying the January 2021 Services Agreement. It contains a detailed summary of the City’s
business need in retaining TMG (Ex. G at 5), the scope of work and services to be performed
(including specific questions to be answered as to the health and success of the project, id. at 5-7),
the risk assessment to be provided (id. at 8), and project deliverables and costs, with a detailed
breakdown of project milestones and fees due at each milestone (id. at 10-11). Public disclosure
of Exhibit G would harm the interests of TMG by providing competitors an advantage with
knowledge of the terms it was able to contract with (harming their competitive interests and
standing), would harm the City by revealing its internal operations and strategies regarding the
project, and would harm the City and TMG by disclosing confidential terms of an agreement not
publicly available that extensively discusses the City’s confidential business need in hiring TMG
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to assess the project, a third party’s scope of work, and by revealing to other potential contractors
the terms and salary the City will contract for. See Brill, 2018 U.S. Dist. LEXIS 240409, at *6;
Cahey, 2021 U.S. Dist. LEXIS 212793, at *4-5; Platt, 2013 U.S. Dist. LEXIS 175032, at *31.
8.For the above reasons, the interests sought to be protected—of both the City and
non-litigant TMG—in restricting access to Exhibits E-G outweigh the presumption of public
access to them in connection with a motion to compel production of TMG documents that the City
asserts are privileged.
9.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”). However, the City submits herewith as Exhibit 1, a redacted
version of the Response as such redactions do not meaningfully or substantially alter the Response.
CONCLUSION
Wherefore, the City respectfully requests that the Court enter the redacted Response,
attached hereto as Exhibit 1, as well as an Order granting Level 1 restricted access to the
Response’s Exhibits E-G [Dkt. Nos. 58-5 through 58-7] and for such further relief as this Court
deems just and proper.
Respectfully submitted this 28th day of June, 2022.
DORSEY & WHITNEY LLP
s/ Maral J. Shoaei
Case Collard
Andrea Ahn Wechter
Maral J. Shoaei
1400 Wewatta Street, Suite 400
Denver, Colorado 80202-5549
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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
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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 1,274 words.
s/ Maral J. Shoaei
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CERTIFICATE OF SERVICE
I hereby certify that on June 28, 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
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([KLELW1
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DS 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 OPPOSITION TO DEFENDANTS’ MOTION
TO COMPEL PRODUCTION OF TMG DOCUMENTS [DKT. 43]
INTRODUCTION
In 2018, Defendants (“Open”) intentionally misled and induced Plaintiff City of Fort
Collins (the “City”) to enter a costly professional services agreement by promising to provide an
integrated software solution for the City’s new Customer Information Services (“CIS”) product
for utilities and a product for broadband. See Compl. [Dkt. 6] ¶¶ 1, 22-55. Open promised an off-
the-shelf solution that would allow the broadband solution and utilities solution to go live in June
and September 2019, respectively, but did not have the product it promised and missed the June
deadline, which had to be reset. Id. ¶¶ 44-47.
In January 2021, the City retained a contractor, TMG, in anticipation of litigation, to review
and provide necessary assistance and technical expertise to the City in assessing Open’s work and
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to support the City’s deliberative process to determine next steps. Decl. of C. Vidergar, Ex. A ¶¶
6-7. The City and TMG individuals worked together like any other City employee:
communications between individuals were treated as confidential and were made for the purpose
of rendering legal and deliberative assistance to the City concerning the project. Id. The City later
retained TMG as a non-testifying, consulting expert in this lawsuit.
Without completion of the Parties’ productions or their respective privilege logs, Open
requests a premature categorical ruling that none of the yet-to-be-logged TMG documents are
protected under the work product doctrine, attorney-client, or deliberative process privileges.
Open asserts that because a “Statement of Work” for TMG did not expressly identify “litigation,”
the City could not have anticipated litigation; but Open provides no authority. The fact that TMG
interacted with and presented a version of a report to Open does not negate the fact that the City
retained TMG in anticipation of litigation to help assess the project and make decisions or that
TMG was a functional equivalent of a City employee. Nor does it waive any privilege. This Court
should deny Open’s motion.
BACKGROUND
A. Procedural Background.
On October 29, 2021, Open served its written discovery with Request No. 3 seeking “all
documents concerning TMG Consulting’s role with the Project….” (Dkt. 43-10 at 13). On
November 29, 2021, the City objected and responded:
[T]he City will withhold documents related to TMG’s work at the direction and
supervision of the City’s counsel, documents protected by the attorney-client and
work product privileges, and documents related to TMG’s retention as a consulting,
non-testifying expert. To the extent there are non-privileged, responsive documents
from the relevant timeframe within the City’s possession, custody, or control after
a reasonable search, the City will produce the same.
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(Dkt. 43-10 at 14).
After a mutually agreed informal stay to discuss settlement, in April 2022 the Parties
finalized ESI search terms (including “TMG”). Because each party was expected to review over
100,000 documents, the Parties agreed to produce their respective privilege logs after productions
were completed. The City has produced 20,151 documents to date, including at least 150 non-
privileged documents responsive to Request No. 3.1 The Parties recently indicated that they expect
to “substantially complete” their productions this week. Thereafter, the Parties will produce their
respective privilege logs.
B. Conferral Background.
Open mischaracterizes the conferral process. The letters attached as Exhibits 6-9 [Dkts.
43-6 to 43-9] concerned the City’s Rule 26 disclosures and whether Open’s counsel could contact
certain individuals directly—not the City’s productions or responses to discovery. The citation
Open claims is the City’s claim of “categorical work-product protection and attorney-client
privilege” (Mot. at 1), was referring to the identification of TMG as a consulting expert and a
reference to the language in Rule 26(b)(4)(D). The statement was unrelated to Request No. 3 and
not an assertion that it would “block” responsive, non-privileged documents.
Open sent its first conferral regarding Request No. 3 on April 8, 2022, alleging that because
the City’s counsel of record “d[id] not represent TMG in this litigation” and “TMG itself [did not]
employ attorneys,” no privilege could exist. Ex. B at 7. But, Open readily acknowledged that the
work product doctrine “protects from disclosure…‘documents and tangible things that are
1 Open references its third-party subpoena to TMG (Mot. at 8) but its motion is aimed at the City.
Moreover, no objections were waived. The Parties agreed to hold the subpoena in abeyance
because resolution of this motion will resolve most, if not all, disputes regarding the subpoena.
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prepared in anticipation of litigation or for trial by or for another part or its representative,’”
affirming that “unless the City began preparing for litigation . . . it is not appropriate for the City
to assert work-product protection in response to Open’s Request for Production 3.” Id. at 8
(emphasis added).
But that is exactly the case. On April 15, 2022, the City confirmed that it had indeed
anticipated litigation and thus, the protection acknowledged by Open applied. Ex. C at 6 (“TMG
was retained by the City to perform work in anticipation of litigation.”). The City disagreed that
its counsel had to “represent” TMG since TMG was the functional equivalent of a City employee.
Id. And since their respective privilege logs were forthcoming, disputes regarding privileged
documents were premature. Id.
After a telephone conferral on April 25, 2022, Open asserted on April 27, 2022, that the
City could not have anticipated litigation because it was still trying to work with Open to complete
the project (despite the project having numerous issues by that point) and a SOW with TMG did
not state “litigation.” Ex. D at 4-5. On May 5, 2022, the City again affirmed its position and noted
that there is no support that the word “litigation” must be in a SOW to trigger work-product
protections. Id. at 2. Open subsequently filed its motion.
LEGAL AUTHORITY
The attorney-client privilege inures to the benefit and protection of the client to allow a
client to gain counsel, advice, or direction with respect to the client’s rights and obligations
confidentially. C.R.S. § 13-90-107(1)(b); See Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d
533, 541 (Colo. 1989).
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The work product doctrine protects “documents and tangible things that are prepared in
anticipation of litigation or for trial by or for a party or its representative (including the other
party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A).
Work product must only be disclosed where (1) the materials are “otherwise discoverable”; and
(2) the party shows that it “has substantial need for the materials to prepare its case and cannot,
without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P.
26(b)(3)(A)(i)-(ii). Even if disclosure is ordered, the court “must protect against the disclosure of
the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other
representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B).
The deliberative process privilege derives from the work product doctrine and protects
documents or testimony that are deliberative and pre-decisional in nature. SEC v. Nacchio, 2009
U.S. Dist. LEXIS 8365, at *9-12 (D. Colo. Jan. 29, 2009), aff’d, 704 F. Supp.2d 1099 (D. Colo.
2010). “The deliberative process privilege seeks to (1) encourage open, frank discussions on
matters of policy between agency subordinates and superiors; (2) protect against premature
disclosure of proposed policies; and (3) protect against public confusion from disclosure of reasons
and rationale that were not in fact ultimately the grounds for an agency’s actions.” Id. at *18-19;
see also City of Colorado Springs v. White, 967 P.2d 1042, 1050 (Colo. 1998) (recognizing the
privilege as part of Colorado common law).
Regarding consulting experts, “a party may not, by interrogatories or deposition, discover
facts known or opinions held by an expert who has been retained or specially employed by another
party in anticipation of litigation or to prepare for trial and who is not expected to be called as a
witness at trial.” Fed. R. Civ. P. 26(b)(4)(D). But a party may do so only as provided in Rule
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35(b) or “on showing exceptional circumstances under which it is impracticable for the party to
obtain facts or opinions on the same subject by other means.” Id.
ARGUMENT
A. Open’s Motion is Premature.
Neither party has completed its production of documents, including those responsive to
discovery requests. No privilege logs (agreed to be provided following completed productions)
have been produced. Once produced, any disputes as to either party’s privilege assertions can be
conferred on and addressed by this Court, if necessary. The City has produced at least 150 TMG-
related documents (one of which was attached as to Open’s motion) and is continuing to do so and
will log any document it asserts a privilege over.
This District has previously declined a similar request for a “sweeping, bright-line” ruling
that no privilege attaches to any documents, based on “the requirement that courts consider
privilege issues on a document-by-document basis.” Menapace v. Alaska Nat’l Ins. Co., 2020 U.S.
Dist. LEXIS 191695, at *32-33 (D. Colo. Oct. 15, 2020). Because such determinations are made
“in light of the nature of the document and the factual situation in the particular case,” Open cannot
prematurely seek a “categorical ruling” that none of the documents yet-to-be identified on a
privilege log are protected by a privilege. Martin v. Monfort, Inc., 150 F.R.D. 172, 173 (D. Colo.
1993).
Indeed, NYW Civ. Practice Standard 37.1 requires that “Parties having issues related to
the invocation of privilege are expected to have provided a privilege log with respect to the
documents at issue that can be submitted to the court.” This Court has previously delayed
consideration of a party’s assertion of protections over documents until after supplementation of a
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privilege log and the parties’ briefing on any remaining unresolved issues. See Byron-Amen v.
State Farm Mut. Auto. Ins. Co., 2022 U.S. Dist. LEXIS 89648, at *4-5 (D. Colo. May 18, 2022).
Open’s assertions that “[a] log is . . . unnecessary” and “would be inefficient and costly to produce”
(Mot. at 12) not only contradicts this Court’s requirements but goes against the Parties’
agreement—to produce privilege logs following completion of their productions. This Court
should strike Open’s motion as premature.
B. The City Retained TMG to Assess the Project in Anticipation of Litigation and the
Work Product Doctrine and Deliberative Process Privilege Apply.
The work-product doctrine protects documents or communications that are prepared in
anticipation of litigation and that are treated as confidential. United States v. Ary, 518 F.3d 775,
783-85 (10th Cir. 2008). Open previously acknowledged that if the City had contemplated
litigation in connection with its retention of TMG, it would be appropriate to claim such protection.
Ex. B at 8. Date-based attacks on the doctrine have failed before. In a comparable case plaintiff
argued: “based on the dates, there could have been no reasonable anticipation of litigation” at the
time of the documents, but this Court declined to adopt “a bright-line rule that the work product
doctrine cannot arise” prior to a date certain. Markley v. United States Bank Nat’l Ass’n, 2020
U.S. Dist. LEXIS 260325, at *4-5, 15 n.3 (D. Colo. Dec. 29, 2020) (“The case law is clear that the
privilege is not confined to circumstances where litigation is certain or imminent” but “the test
should be whether, in light of the nature of the document and the factual situation in the
particular case, the document can fairly be said to have been prepared or obtained because of the
prospect of litigation.”) (emphasis added).2
2 The proposition for which Open cited McCall v. Skyland Grain, LLC pertained to instances where
“the investigation of the accident would normally be undertaken.” 2009 U.S. Dist. LEXIS 41034,
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Here, the City anticipated litigation with Open prior to retaining TMG in January 2021.
Ex. A ¶¶ 5-6. Even as early as summer of 2020, the City was aware that Open had failed to meet
its obligations under the contracts, including meeting the deadlines as required. Compl. [Dkt. 6]
¶¶ 44-47. Cyril Videgar, counsel for the City, was involved in the retention of TMG to assess the
project in anticipation of litigation. Ex. A ¶ 6. The City retained TMG to determine how deep
Open’s failures were and whether there was a path forward. Id. Moreover, during the timeframe
noted by Open—January-April 2021—the City involved additional attorneys to gear up for
litigation, including the City’s counsel of record, in February 2021 and April 2021. Id. ¶ 8. TMG
provided information to the City and its counsel that were not provided in the presentation report
to Open; the report TMG provided to Open was only done following the City’s counsel’s review
and approval of the same. Id. TMG prepared a different report at the direction of the City’s
counsel in connection with its anticipation of litigation. Id. And as Open acknowledges, the
Parties were trying to resolve their disputes—the report it received was “for use by [the Parties] to
amicably resolve through negotiation their differences under their contract as contemplated in Rule
408 of the Colorado Rules of Evidence” (Ex. 4 [Dkt. 43-4] at 2) and the email Open attached
confirms these were “resolution meetings” (Ex. 5 [Dkt. 43-5] at 1). A timeline where the City
anticipated litigation roughly six months prior to filing is eminently reasonable. Clearly, when
Open failed to meet its 2019 deadlines under the contracts, the City began anticipating issues and
was reasonably anticipating litigation by late 2020, involving Mr. Videgar, retaining TMG in
January 2021 to determine whether there was a path forward, and involved even more attorneys in
at *17-18 (D. Colo. Apr. 29, 2009). Open made no showing that the City’s use of TMG was how
it “normally undertakes” investigations of its vendors and projects. Open has not shown that any
actual documents it seeks production of were prepared in the ordinary course of the City’s business.
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early 2021. Ex. A ¶¶ 5-6, 8. Open’s blanket request for all “notes, drafts, communications, and
other papers related to TMG’s assessment and report to the parties between January and April
2021,” based on a categorical ruling that no privileges apply to any such documents, cannot be
granted.
Open asserts that the work product doctrine cannot apply because the City’s Statement of
Work (“SOW,” Ex. 3 [Dkt 43-3]) with TMG “says nothing whatsoever about the prospect of
litigation, and Open actively participated in the assessment and received TMG’s final report.”
Mot. at 2. Open provides no authority that the SOW language controls the application of the
doctrine. TMG was not permitted to disclose the City’s confidential information without the City’s
prior written approval. December 30, 2020 NDA included with January 26, 2021 Services
Agreement, Ex. E at CFC_094978, ¶ 7. TMG was “responsible to the City only.” Id. at
CFC_094967. TMG was and had no
March SOW, Ex. F at CFC_094996. Open claims TMG was “independent” (Mot. at 5), but the
report cited merely states that “TMG has no relationship with any CIS hardware supplier, software
vendor, or service provider that would benefit TMG from any decision made as a result of this
study” (Ex. 4 [Dkt. 43-4] at 5), not that it was acting independent of the City’s work in anticipation
of litigation.
Open’s allegation that the City “scrambled to engage TMG as a consulting expert…to
shroud TMG’s documents and testimony in work product protection” (Mot. at 10) is groundless.
The work product protection already applied. Courts have “not allowed parties to discover factual
knowledge and opinions possessed by an opposing party’s consultative experts where the experts
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acquired the information (1) through their employment with the opposing party and (2) in
anticipation of the underlying litigation.” Rocky Mountain Natural Gas Co. v. Industrial
Mechanics, Inc., 166 F.R.D. 481, 482 (D. Colo. 1996). TMG also lacks “direct, personal
knowledge, as actors or viewers of the facts of the particular case.” Connolly v. NEC Am., Inc.,
291 B.R. 535, 537 (Bankr. D. Colo. 2003) (emphasis added). TMG was not involved with the
contract between the Parties, the work under the contract, the scheduling delays, the failure to
implement the promised solution, etc.—only the Parties’ own representatives have direct, personal
knowledge, as actors and viewers of the facts of this case. As the report shows, TMG only
interviewed the Parties’ representatives, obtained their respective perspectives on the issues, how
they would change the project, etc. See Ex. 4 [Dkt. 43-4].
Open also wholly fails to consider the deliberative process privilege. Agreements with
TMG clearly show that the purpose of TMG’s engagement was to help the City determine its next
steps. For instance, the January 2021 Work Order states that the City retained TMG to
Ex. G at CFC_094986. Indeed, the first two questions ask whether
and
Id. These are deliberative actions to assist
the City in its decisions. Open cannot obtain the requested relief.
C. TMG Was the Functional Equivalent of a City Employee and the Attorney-Client
Privilege Applies.
Open asserts that communications with TMG cannot be protected because “neither TMG
nor its consultants were attorneys” and “they were not clients of the City’s [counsel].” Mot. at 11.
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But that is not the test. Open provides no support to impose such a narrow view. As the City has
long stated, TMG was a functional equivalent of a City employee.
In this determination, courts look to: (1) whether the consultant had primary responsibility
for a key job; (2) “whether there was a continuous and close working relationship between the
consultant and the [City’s] principals on matters crucial to the [City’s] position in litigation”; (3)
whether consultant is likely to possess information possessed by no one else” at the City; (4)
whether the information was treated as confidential; and (5) the subject matter of communications
was within the scope of the duties provided to the independent contractor. A.H. v. Evenflo Co.,
2012 U.S. Dist. LEXIS 76100, at *9-10, 13 (D. Colo. May 31, 2012).3 Here, TMG had the
necessary expertise and guidance in observing and assessing the project. TMG’s representatives
worked closely and continuously with City employees, including the City’s executive team and
attorneys, on matters critical to the project and the City’s investigation, including establishing the
legal claims and concerns brought by the City in this action.4 Ex. A ¶ 7. For instance,
Ex.
G at CFC_094988-89. TMG provided quality assurance services and transition project
management services on behalf of the City, including tracking activity completions, project critical
path, and delivery dates associated with milestone dates. See id. Further, the City communicated
with TMG individuals on a confidential basis (Ex. E at CFC_094976-81) and acted as an agent
3 Open’s reliance on Am. Ins. Co. v. Pine Terrace Homeowners Ass’n, 2021 U.S. Dist. LEXIS
97203 (D. Colo. May 21, 2021) is misplaced. It does not concern “functional equivalents.”
4 In re Copper Market Antitrust Litig., 200 F.R.D. 213, 218-19 (S.D.N.Y. 2001) (one who
consulted with the company's counsel regarding a pending investigation was the functional
equivalent of an employee).
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for the City, within their scope of duties as project managers and providing guidance and
assessment of the project (see Ex. F at CFC_095000-02).
The attorney-client privilege applies to communications between the City and TMG that
were for the purposes of rendering legal advice. See All. Const. Sols., Inc. v. Dep't of Corr., 54
P.3d 861, 867 (Colo. 2002) (no need to create formal distinction where independent contractor is
functional equivalent of employee); In re Bieter Company, 16 F.3d 929, 937-38 (8th Cir. 1994);
In re Copper Market Antitrust Litig., 200 F.R.D. at 219 (“[T]here is no reason to distinguish
between a person on the corporation’s payroll and a consultant hired by the corporation if each
acts for the corporation and possesses the information needed by attorneys in rendering legal
advice.”); FTC v. GlaxoSmithKline, 294 F.3d 141, 148 (D.C. Cir. 2002) (documents shared with
consultants held to be privileged where counsel worked with the consultants in the same way as
with employees, the consultants were integrated with internal teams, and the consultant’s activities
were intertwined with legal issues). Open’s premature attempt to block the City’s ability to claim
privilege must be denied.
D. Open Has Not Shown Any Waiver of the Privileges.
Open asserts that the City somehow waived privilege protections because Open received a
version of the TMG report. But, the burden of proving waiver of either the attorney-client privilege
or the work product doctrine rests upon the party seeking to overcome the privilege and Open
failed to meet its burden. DiFede, 780 P.2d at 542; accord. H. ex rel. Holder v. Gold Fields Mining
Corp., 239 F.R.D. 652, 655 (N.D. Okla. 2005).
First, Open confuses the issues. The City has not claimed either work product or attorney-
client privilege over the actual report that Open received from TMG. As such, Open’s reliance
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on the Grace case does not support any waiver and the City is not using the privilege as a sword
and a shield.
Second, Open has made no showing that the substance of any attorney-client privileged
communication was disclosed to Open at any point, either in the report or otherwise. Open’s
general identification of the report and purported involvement fails to identify any legal advice or
other protected communication that was disclosed to assert a waiver of the privilege (much less a
“categorical” waiver).5
Third, Open has not shown that any information and documents over which the City asserts
the work product immunity over was included and disclosed to Open. In any event, the work
product immunity is not automatically waived by any disclosure. In re Sealed Case, 676 F.2d 793,
802-10 (D.D.C. 1982). Moreover, Open has not even attempted to meet its burden of showing that
it “has substantial need for the materials to prepare its case and cannot, without undue hardship,
obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). Open asserts
that “[t]hese materials are necessary to determine what happened in the final year of the project
and which party shoulders the blame for the project’s problems” (Mot. at 13), but the Parties are
the ones with knowledge as to what happened in the final year of the project. Open alleges that
TMG interviewed individuals who worked on the project (id. at 5) but Open has made no showing
5 A party “may assert attorney-client privilege for undistributed documents, such as drafts of
communications which were created with the intention of confidentiality, even where the final
distribution of the draft might constitute a waiver of the privilege.” Helm v. Adlerwoods Group,
Inc., 2010 WL 2951871 n.2, at *2 (N.D. Cal. July 27, 2010). Additionally, communications
between and among non-attorneys are also privileged to the extent that they transmit or discuss
legal advice. See Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503, 513-515 (D. Cal. 2003) (holding
that the privilege applied to litigation related communications between various non-legal
employees so long as they were created at the direction of counsel).
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that it cannot obtain information from those individuals directly, including Open’s and the City’s
representatives. Open has failed to set forth any need, much less a “substantial need” and cannot
get around Rule 26(b)(3)(B)’s prohibition that disclosure of any work product ordered by the court
“must protect against the disclosure of the mental impressions, conclusions, opinions, or legal
theories of a party’s attorney or other representative concerning the litigation.” Fed. R. Civ. P.
26(b)(3)(B).
The City respectfully requests that this Court DENY Open’s Motion.
Submitted this 14th day of June, 2022.
DORSEY & WHITNEY LLP
s/ Case Collard
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
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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/ Case Collard
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CERTIFICATE OF SERVICE
I hereby certify that on June 14, 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
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