The URL can be used to link to this page

Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 071 - Open Resp Mot Restrict 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 MOTIONS TO RESTRICT Defendants and Counterclaimant Open International, LLC and Open Investments, LLC (together, “Open”) respectfully oppose the Plaintiff and Counter-Defendant City of Fort Collins’s (the “City”) Motions to Restrict Access (Dkts. 66 & 69). These are the City’s third and fourth motions to seal documents. As before, the City seeks wholesale sealing of the evidentiary record in this case, leaving only documents prepared by counsel for the public record. And, as before, the City has failed to articulate specific protectable interests in the documents it seeks to seal or any particular harm that would result from honoring the presumption in favor of public access to judicial records. The City’s motions should therefore be denied. “Courts have long recognized a common-law right of access to judicial records.” Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007). While that right is not absolute, it entails a “strong presumption in favor of public access” that cannot be rebutted unless “countervailing interests heavily outweigh the public interests in access.” Id. See also Johnstown Feed & Seed, Inc. v. Cont’l W. Ins. Co., 2009 U.S. Dist. LEXIS 23507, at *3 (D. Colo. Mar. 26, 2009) Case 1:21-cv-02063-DDD-NYW Document 71 Filed 06/28/22 USDC Colorado Page 1 of 5 -2- (elaborating on judicial duty to “avoid secrecy,” which is “anathema to a free society”). To overcome the presumption, a party seeking to seal court records must “articulate a real and substantial interest that justifies depriving the public of access to the records that inform [judicial] decision-making” and demonstrate that “disclosure will work a clearly defined and serious injury.” Sacchi v. IHC Health Servs., Inc., 918 F.3d 1155, 1160 (10th Cir. 2019) (quotations and citations omitted); United States v. Walker, 761 F. App’x 822, 834 (10th Cir. 2019) (quotations and citations omitted); accord D.C.COLO.LCivR 7.2(c). “[A] party cannot overcome the presumption against sealing judicial records simply by pointing out that the records are subject to a protective order.” MusclePharm Corp. v. Liberty Ins. Underwriters, Inc., 712 F. App’x 745, 749 (10th Cir. 2017). The City seeks to seal two categories of documents with the present motions: (a) Open’s own internal email discussing negotiations with a Vanir employee about the allocation of responsibility, as between Open and the City, for the costs and delays at the center of this case, see Dkt. 66 ¶ 6, and (b) four contract documents that bear directly on the City’s separate privilege arguments by which the City seeks to block essential discovery of third-party assessments of the project at issue, see Dkt. 66 ¶ 5; Dkt. 69 ¶¶ 3-4. The City does not explain how it has standing to seal Open’s own internal email, but speculates that the allocation of responsibility described in the email “could be a misrepresentation of what the City did or did not do during the project.” Dkt. 66 ¶ 6. Setting aside that the City’s documents and witnesses corroborate the allocation of responsibility attributed to Vanir in the email,1 the possibility that a document might contain a disputed 1 Open cited its own document rather than the City’s hoping to avoid this sealing dispute. Case 1:21-cv-02063-DDD-NYW Document 71 Filed 06/28/22 USDC Colorado Page 2 of 5 -3- proposition is not a basis for sealing. The City’s failure to identify any protectable interest related to the email, or any potential harm from its disclosure, also takes Open’s internal email outside the holding of Cooper v. Instant Brands, Inc. There, the party seeking restriction stated that a Chinese-script exhibit reflected a “proprietary design document that contains a discussion of features of the design and the engineering of the product at issue”—i.e., protectable trade secrets. 2020 U.S. Dist. LEXIS 29836, at *7 (D. Colo. Feb. 21, 2020) (alterations omitted). The City does not contend that the document here, which is readily translatable by the parties and the public using free online tools, contains trade secrets or other sensitive proprietary information of the City. As Open explained in its brief, see Dkt. 54 at 3, the document summarizes Open’s discussions with the City’s third-party contractor about the allocation of responsibility for delays and costs associated with the project—discussions and allocations that Open detailed in its unredacted Counterclaims, see Dkt. 13 ¶ 85. The City has not overcome the open-records presumption as to this email that illustrates Vanir’s independent role in the project and therefore bears directly on the briefs with which the email was filed. The City also seeks to seal four contracts because they contain data points like hourly labor rates, payments, budgets, and detailed descriptions of the work performed in relation to the project at issue in this case. Dkt. 66 ¶ 5; Dkt. 69 ¶¶ 5-7. Even if the Court credits the City’s vague concerns about the resulting harm of publicly disclosing this standard commercial information related to the project, the City has not explained why the hourly labor rates, payment amounts, or budget figures can’t be narrowly redacted. Nor does the City explain why Open’s brief must be redacted to hide Open’s description of its own internal document, its description of the Vanir memoranda produced in conjunction Case 1:21-cv-02063-DDD-NYW Document 71 Filed 06/28/22 USDC Colorado Page 3 of 5 -4- with the project, or its description of non-sensitive provisions from the City’s work plan with Vanir. See Dkt. 66 ¶¶ 7-9. Even if the documents could be sealed, Open’s brief contains only highly generalized statements about those documents, see Dkt. 54 at 3-4, 7-8, 11-12, not trade secrets or other proprietary information of the City that might warrant redaction. The City chose to commence litigation over its software-implementation project with Open. The City is a public entity with public stakeholders, and it has not identified specific protectable information or particular harm from disclosure that justifies entirely withholding court records about the project from the public. The City’s Motions should be denied. Dated: June 28, 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 934 words. s/ Paul D. Swanson Case 1:21-cv-02063-DDD-NYW Document 71 Filed 06/28/22 USDC Colorado Page 4 of 5 -5- CERTIFICATE OF SERVICE I hereby certify that on the 28th 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 71 Filed 06/28/22 USDC Colorado Page 5 of 5