HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 079b - Exhibit 2Exhibit
Case 1:21-cv-02063-DDD-NYW Document 79-2 Filed 07/06/22 USDC Colorado Page 1 of 5
From:Paul D. Swanson
To:Wells, Wynter; Anna C. van de Stouwe
Cc:Wechter, Andrea; Collard, Case; Shoaei, Maral; Alex D. White; Anne Tupler; Marcy Weaver
Subject:RE: Response to April 8, 2022 Letter Open International/City of Fort Collins
Date:Wednesday, April 27, 2022 1:53:16 PM
Attachments:image002.png
image003.png
EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS.
Hi, Andrea—
Thanks again for your letter. We also appreciate you and your team taking time to confer with us
about it Monday.
The call was productive in several respects. Regarding the City’s general objections and the
objections to RFPs for vagueness, ambiguity, overbreadth and similar non-privilege objections, we
understand that the City is not limiting its search beyond using the agreed search terms, nor is the
City limiting its production based on those objections. Similarly, for the privilege objections to the
interrogatories, we understand that the City is not withholding factual information responsive to
those interrogatories, just emphasizing that it won’t disclose the legal advice it has received and
discussed with its counsel. Please let us know if we have misunderstood the status of those issues.
Where I think we still have some space between us is regarding the City’s compoundness objections
to RFPs and the City’s privilege/work-product invocations for third-party documents and
communications.
Compoundness
Regarding the City’s compoundness objections to RFPs 1, 5, 8, and 10, each of which you deemed to
be either two, three, or four separate requests, we understand that the City is unwilling to
reconsider its position until it can review whatever future requests Open propounds. We don’t think
that’s fair or justified. Parties are not required to seek leave from one another to propound
discovery. But in the interest of compromise, we will agree to the treatment of RFPs 8 and 10 as two
requests each, meaning that Open would be deemed to have propounded a total of 14 RFPs to
date.
We believe further limitation on Open’s RFPs would be disproportionate. While the City contends
that Open’s requests are too broad, we understand that the volumes of documents for review,
based on search terms, are similar between the two sides—each reviewing well over 100,000
documents. Since Open’s 12 RFPs led to roughly the same volume of documents for review as the
City’s seven RFPs , there’s no proportionality or reasonableness rationale for leaving Open with only
four more RFPs but the City with 18. But again, we’ll accept treatment of RFPs 8 and 10 as two
requests each to avoid a dispute. Otherwise, we intend to raise the issue with the Court since Open
expects to propound more than four additional RFPs, and Open needs to know what discovery tools
it has going forward.
Case 1:21-cv-02063-DDD-NYW Document 79-2 Filed 07/06/22 USDC Colorado Page 2 of 5
Third-Party Privilege/Work Product Disputes
Turning to privilege and third parties, we understand that, with AAC and Vanir, the City’s privilege
objections have a narrow scope (and don’t include work product, since litigation was nowhere near
imminent). For AAC, the City contemplates privilege invocation only as to legal communications
between City personnel and corporation counsel about AAC and the RFP process, but not privilege
over communications with AAC. For Vanir, we understand the City to take a slightly broader
position: that internal legal communications with corporation counsel would be privileged, but so
too, according to the City, are legal communications between corporation counsel and Vanir
consultants who acted as functional equivalents of City personnel. We are skeptical of the second
assertion for a few reasons, including that Vanir personnel never took on City email addresses and
continued to operate as outsiders. But for both the AAC and Vanir privilege issues, we agree with
you that it will make more sense to assess those privilege invocations in the context or a privilege
log. If we’ve misapprehended anything as to AAC and Vanir, please let us know.
With respect to privilege and TMG, we are concerned the City is improperly using privilege and work
product protections to shield fully discoverable, highly relevant information. The City retained TMG
in January 2021 to
That engagement entailed
answering five questions about the status and go-forward plan for the project, none of which
implicated litigation with Open. To the contrary, the engagement specifically required Open to work
with the City and TMG
Thereafter, in April, TMG presented its findings in a report directed to both Open and
the City, in which TMG emphasized its independence from them both, and recommended that Open
and the City continue working together. During that time, Aaron McClune came onboard for the City
to help direct the project on a day-to-day basis.
These events and the TMG individuals involved in them are highly relevant since they implicate a
detailed third-party analysis of the project, scores of interviews with City personnel, and the
operation of the City’s side of the project in its final months. And we don’t see any basis for privilege
between TMG consultants who expressly asserted their independence from the City, meaning that
the City’s lawyers were not TMG’s lawyers, and worked extensively with non-lawyers from the City
and Open.
Nor do we see any basis for work-product protection. “[T]he work product doctrine is intended only
to guard against divulging the attorney’s strategies and legal impression.” Resolution Tr. Corp. v.
Dabney, 73 F.3d 262, 266 (10th Cir. 1995). As a result, documents prepared in the ordinary course
of business are not subject to work-product protection, which attaches only if “documents would
not have been created but for the prospect of litigation.” L-3 Commc’ns Corp. v. Jaxon Eng’g &
Maint., Inc., No. 10-cv-02868-MSK-KMT, 2014 U.S. Dist. LEXIS 103157, at *16 (D. Colo. Jul. 29, 2014)
(Tafoya, M.J.) (quotations and citation omitted). “[B]ecause litigation is an ever-present possibility in
American life, it is more often the case than not that events are documented with the general
Case 1:21-cv-02063-DDD-NYW Document 79-2 Filed 07/06/22 USDC Colorado Page 3 of 5
possibility of litigation in mind.” Smith v. Marten Transp., Ltd., No. 10-cv-0293-WYD-KMT, 2010 U.S.
Dist. LEXIS 138107, at *5–6 (D. Colo. Dec. 17, 2010) (Tafoya, M.J.). But the mere possibility of
litigation—even if litigation eventually does ensue—“does not, by itself, cloak materials with work
product immunity.” Id. at *6. 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, No. 08-cv-01128-PAB-BNB, 2009 U.S. Dist. LEXIS 41034, at
*17 (D. Colo. Apr. 29, 2009) (Boland, M.J.); see Wikel v. Wal-Mart Stores, Inc., 197 F.R.D. 493, 495 –
96 (N.D. Okla. 2000) (“The fact that a defendant anticipates the contingency of litigation resulting
from an accident or event does not automatically qualify an accident report as work product. If the
investigation of the accident would normally be undertaken, an investigative report developed in the
ordinary course of business will not be protected as work product.”).
Your contention during our call that the City was anticipating litigation all along while working with
TMG is troubling since it belies the City’s allegations in its complaint that it was working in good faith
to complete the project. That contention also contradicts the engagement letter, report, and
conduct of TMG—all of which showed an external consultant geared to provide an assessment and a
recommendation for the road ahead—i.e., the “ordinary course of business” for a CIS-
implementation consultant. And even if the City harbored a secret litigation purpose in working with
TMG, that was not the “driving,” let alone “but for,” cause of TMG’s work, which served principally a
non-litigation purpose. Moreover, the City would have waived any work product protection by
involving Open in the entire process with TMG and in the ultimate report issued by TMG. See United
States v. Ary, 518 F.3d 775, 783 (10th Cir. 2008) (“Courts will imply waiver when a party claiming the
protection has voluntarily disclosed work product to a party not covered by the work-product
doctrine.”). We see nothing in the TMG assessment or in its support for the project that can be
shielded from discovery.
Finally, a word on ripeness. While we understand the City’s position that a dispute about privilege
and work product in relation to TMG should wait for a privilege log, we believe the core dispute is
ready for resolution by the Court. In his November 15, 2021 letter, Case said “any facts known to
TMG and opinions held by TMG are precluded from discovery by Open” because TMG is a non-
testifying expert for the City. But Rule 26(b)(4)(B) does not permit a party to wall off percipient fact
witnesses and their documents simply by signing them up as non-testifying experts. Rather, the rule
permits the other party to discover information that the expert “acquired prior to being retained by
an opposing party in anticipation of the underlying litigation.” Am. Ins. Co. v. Pine Terrace
Homeowners Ass’n, No. 20-cv-00654-DDD-KMT, 2021 U.S. Dist. LEXIS 97203, at *22 (D. Colo. May 21,
2021) (Tafoya, M.J.). For all the reasons just stated, TMG was not hired in anticipation of litigation
for its assessment of the City’s project or its support through Mr. McClune of that project. If there is
some other, narrower litigation-focused engagement that the City undertook with TMG, please let
us know when that began and provide information to support that contention. But even then, if the
City maintains its position from November 15, Open will seek a court ruling that documents and
testimony leading up to and culminating in TMG’s April 2021 report are not privileged or otherwise
protected and may be discovered, as well as documents and testimony related to Mr. McClune’s
ordinary-course work in support of the implementation in 2021. The City’s position necessitates
such a ruling, particularly in light of the City’s pending blanket objection to party discovery about
TMG, Open’s document subpoena to TMG, and Open’s anticipated testimonial subpoenas to Mr.
Case 1:21-cv-02063-DDD-NYW Document 79-2 Filed 07/06/22 USDC Colorado Page 4 of 5
Galluzzi and Mr. McClune next month.
By Friday April 29, please let us know your position with respect to (1) our proposal to resolve the
City’s compoundness objection and (2) Open’s challenge to the blanket invocation of privilege and
work product over TMG information and the testimony of its personnel. If we remain at impasse,
then we can proceed with the next step in Judge Wang’s procedures for written-discovery disputes,
which I believe is a call to chambers to schedule a conference.
Best,
Paul
Paul D. Swanson
Holland & Hart LLP | 303.295.8578
From: Wells.Wynter@dorsey.com <Wells.Wynter@dorsey.com>
Sent: Friday, April 15, 2022 3:14 PM
To: Anna C. van de Stouwe <ACVanDeStouwe@hollandhart.com>
Cc: wechter.andrea@dorsey.com; collard.case@dorsey.com; Shoaei.Maral@dorsey.com
Subject: Response to April 8, 2022 Letter Open International/City of Fort Collins
Ms. van de Stouwe:
Attached is Ms. Wechter’s response to your April 8, 2022 letter regarding discovery
responses. If you have any questions or concerns, 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 79-2 Filed 07/06/22 USDC Colorado Page 5 of 5