HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 079c - Exhibit 3Exhibit
Case 1:21-cv-02063-DDD-NYW Document 79-3 Filed 07/06/22 USDC Colorado Page 1 of 9
From:Paul D. Swanson
To:Collard, Case; Wechter, Andrea; Shoaei, Maral
Cc:Anna C. van de Stouwe; Alex D. White; Anne Tupler; Marcy Weaver
Subject:RE: Response to April 8, 2022 Letter Open International/City of Fort Collins
Date:Thursday, May 12, 2022 12:04:31 PM
Attachments:image001.png
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EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS.
Hi, Case and Andrea—
Thanks for the note below and for the call on Monday. We appreciate your efforts to work out our
discovery disputes; we want to do the same.
On the compoundness objections, we understand the City not to be compromising on its objections,
but agreeing to raise the limit for RFPs for both sides, leaving Open with 9 RFPs and the City with 21.
Since you expressed concern about having to address additional requests from Open, we’re sure you
understand our concern about adding more requests to the City’s quiver while leaving Open with
fewer requests than we believe we’re entitled to under the scheduling order. We don’t think Open’s
requests were compound, and the four RFPs the City objected to certainly don’t constitute 13
separate requests, as the City contends. Nor is the City laboring under a disproportionate burden,
since it’s reviewing a similar volume of documents as Open. That said, to resolve this, we’ll agree to
treat the four RFPs you objected to as two requests each. That would leave Open with 9 RFPs and
the City with the 16 it has left under the scheduling order, with both parties free to seek additional
requests on a good cause showing. Can we agree on that?
On AAC and Vanir, we’ve still got disagreements, but Open agrees to hold those in abeyance for
now.
On TMG, we understand the City is offering to produce some TMG documents that it believes aren’t
privileged, but without waiving its work-product contentions and while withholding and logging
documents it believes are privileged. We appreciate the offer and have considered it, but we don’t
think it’s adequate or efficient. We won’t rehash the arguments, but we don’t think privilege or
work product applies to anything having to do with TMG’s assessment or presentation. And
between the engagement letter and the presentation itself, the Court will be equipped to decide
that issue categorically. That will simplify party discovery, but even more, it will simplify third-party
document discovery and depositions. We’ve asked you all about other agreements with TMG that
may have created litigation-focused engagements, and we understand one or more agreements like
that may have been executed in or after spring 2021, but we haven’t received those or learned
when they were executed. If you could share that information, I imagine it’ll be helpful in framing
the arguments and requested relief, particularly as to TMG’s more day-to-day work through Aaron
McClune in spring and summer 2021.
Please let us know if there’s a time between 130 and 230pm today, or anytime tomorrow, when we
could have a lawyer from each of our teams contact Judge Wang’s chambers to set a conference on
the TMG issue and, if necessary, the compoundness issue. During that call, we’d also like to ask
Case 1:21-cv-02063-DDD-NYW Document 79-3 Filed 07/06/22 USDC Colorado Page 2 of 9
whether Judge Wang would consider “grabbing” and ruling on the pending motion to withdraw and
motion to amend the scheduling order, pursuant to Judge Domenico’s general referral order (Dkt.
20). As we face extension requests from third parties, we want to know how much time we’re
working with.
Thanks, all.
Best,
Paul
Paul D. Swanson
Holland & Hart LLP | 303.295.8578
From: collard.case@dorsey.com <collard.case@dorsey.com>
Sent: Thursday, May 5, 2022 6:16 PM
To: Paul D. Swanson <PDSwanson@hollandhart.com>; Wells.Wynter@dorsey.com; Anna C. van de
Stouwe <ACVanDeStouwe@hollandhart.com>
Cc: wechter.andrea@dorsey.com; Shoaei.Maral@dorsey.com; Alex D. White
<ADWhite@hollandhart.com>; Anne Tupler <ATupler@hollandhart.com>; Marcy Weaver
<MWeaver@hollandhart.com>
Subject: RE: Response to April 8, 2022 Letter Open International/City of Fort Collins
External Email
Paul,
Below is our position on the items raised in your April 27th email. I think another call would be
useful to further discuss the issues related to TMG. I could do Monday between 1-3pm or Tuesday
between 9-10am. Please let me know what works for you.
Compoundness
We disagree with Open’s position on compoundness but appreciate the compromise
suggestion. However, our compound objections are proper and we would prefer to count the
interrogatories as we have suggested. Your compromise suggests that Open would have 11
RFPs remaining. As an alternative, we suggest that, the RFPs are counted as separate
(meaning Open has used 21), but that each side would get 5 additional RFPs giving Open 9
remaining (and each side would have 30 total). Will that work for Open?
Third Party Issues
For ACC and Vanir, we disagree with your positions (for example, the request regarding AAC
was not limited in time to when they were involved so WP/AC could both apply), but do not
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see it useful to fully recount and expand on that again here. We agree to revisit the issues
after both parties have produced their privilege logs.
TMG
It appears that Open is asserting there is no privilege because it claims the “TMG
consultants… expressly asserted their independence from the City” and because TMG
worked on behalf of both the City and Open. However, as discussed during our call, the
January 2021 Services Agreement is only between TMG and the City (i.e. not Open) and
specifically states that TMG is
.” It
also incorporates a Mutual Non-Disclosure Agreement that makes clear TMG is not
permitted to disclose any confidential information to Open or anyone else, without the
City’s approval.
As addressed in the City’s November 15th response letter, the City maintains that TMG
was the functional equivalent of a City employee and the attorney-client privilege
applies to communications and documents between TMG and the City that were
prepared at the direction of City’s counsel and for the purposes of rendering legal
advice to the City.
Moreover, the City maintains its position as to the applicability of the work product
privilege based on its anticipation of litigation – as Open readily acknowledged would
trigger the protection in its April 8th letter (p. 8). You claim that the City is “improperly
using privilege and work product protections” and suggest that there needs to be direct
language claiming litigation or anticipation of litigation in the January 2021 Services
Agreement. But, you have provided no support for this proposition. The cases cited in
your email stand for the proposition that the services need to be in anticipation of
litigation, not that there needs to be direct documentation stating such. In any event,
the City did anticipate litigation when retaining TMG.
Further, your reference to the November 15th letter is taken out of context. First, the
November 15th letter was in response to Open’s issues regarding whether you/Open
could contact TMG based on the exchange of initial disclosures. Second, the statement
that “Open cannot properly contact TMG for any purpose as [to?] any facts known to
TMG and opinions held by TMG are precluded from discovery by Open” was made in
conjunction with the discussion about how TMG is the City’s retained, non-consulting
expert and as such, documents and communications related to that work are precluded
from discovery. We made this clear on our recent call and to again assert that we
intended it to apply to all documents/communications concerning TMG is misleading
and improper.
The City maintains that the work product doctrine applies and that neither TMG’s
communications with Open prior to the report nor the report waived existing work
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product protections. However, the City is open to discussing possible production of
non-attorney/client privileged documents from prior to the issuance of the report in an
effort to compromise some of the disputes, which we can discuss on a call.
Notwithstanding the offer for further discussions, as seen in our recent production, the
City already produced numerous communications and documents with/from TMG. The
City continues to maintain that any privilege issues are premature until both sides have
produced their respective privilege log, which is further supported by the cases cited in
your email which concern specific documents listed on privilege logs.
Case
Case Collard
Dorsey & Whitney LLP
Office: 303 352 1116
Mobile: 720 839 4353
From: Paul D. Swanson <PDSwanson@hollandhart.com>
Sent: Wednesday, April 27, 2022 1:53 PM
To: Wells, Wynter <Wells.Wynter@dorsey.com>; Anna C. van de Stouwe
<ACVanDeStouwe@hollandhart.com>
Cc: Wechter, Andrea <wechter.andrea@dorsey.com>; Collard, Case <collard.case@dorsey.com>;
Shoaei, Maral <Shoaei.Maral@dorsey.com>; Alex D. White <ADWhite@hollandhart.com>; Anne
Tupler <ATupler@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com>
Subject: RE: Response to April 8, 2022 Letter Open International/City of Fort Collins
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.
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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.
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 (
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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
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
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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.
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:
Case 1:21-cv-02063-DDD-NYW Document 79-3 Filed 07/06/22 USDC Colorado Page 8 of 9
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
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