HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 080 - City Notice Supplemental Record In Opposition To Mot Compel W Exhibit1
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’ NOTICE OF SUPPLEMENTAL RECORD IN
OPPOSITION OF MOTION TO COMPEL TMG DOCUMENTS
The City of Fort Collins (the “City”), by and through its undersigned counsel, respectfully
submits relevant excerpts from the testimony of Travis Storin. Though this motion was fully
briefed on June 17, 2022, Defendants Open International, LLC and Open Investments, LLC
(together, “Open”) submitted a Notice of Supplemental Record on July 5, 2022 (Dkt. 76) which
cites excerpts from the June 23, 2022 deposition of Coy Althoff (“Open’s Notice”). Open’s Notice
gives a misleading and incomplete portrayal of the testimony provided concerning the decision to
hire TMG. Accordingly, the City submits Exhibit H, which contains excerpted testimony from
the June 21, 2022 deposition of Mr. Storin, to complete the record.
On June 21, 2022, two days before Mr. Althoff was deposed, Open deposed Travis Storin,
the CFO of the City of Fort Collins. Mr. Storin provided a detailed account of both the origin of
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the idea to retain TMG and the decision-making process that led the City to ultimately retain TMG.
Open first asked Mr. Storin about the origin of the idea:
Q (By Mr. Swanson) And I can rephrase this to try to help that. If you know,
independent of advice or information provided to you by counsel, who first
proposed hiring TMG Consulting?
. . .
A The proposed assessment I think was first suggested by Coy Althoff. And shortly
after, we began interfacing with legal counsel.
Storin Tr., Exhibit H at 34:13-21. Open then went on to ask about the decision to proceed with
TMG. Mr. Storin testified that the decision was reached through a consensus between the City’s
Attorneys and project managers. He testified as follows:
Q (By Mr. Swanson) If you know independent of what you have learned only
through counsel, who were the individuals within the organization who reached a
consensus to hire TMG?
A There was agreement amongst our legal counsel, our City manager, myself, Ms.
Connor, Mr. Wilkins.
Q Was Mr. Althoff part of that decision? And let me be clear: I mean the decision,
not part of the discussion. But was he a decision-maker on that? Did he hold a vote,
so to speak, on whether this would happen?
A I think I can characterize his involvement as a recommendation.
Id. at 38:6-19.
Two days after receiving detailed testimony about the decision to hire TMG from Mr.
Storin, Open deposed Mr. Althoff. During this deposition, Open chose to limit the scope of its
questions to the “idea to reach out to TMG,” while avoiding questions or testimony concerning the
City’s decision to hire TMG. Mr. Althoff was asked whether the idea to hire TMG Consulting
came from him (as Mr. Storin had testified), and confirmed that it did. Althoff Tr. 43:20-22.
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Open has the discretion to choose what questions to ask at a deposition. Open used the
incomplete record resulting from its limited questioning of Mr. Althoff to provide a limited picture
to the Court that (incorrectly) implies that the City’s attorneys did not participate in the decision
to hire TMG. While Mr. Althoff had the initial idea to hire TMG and discussed it with non-
lawyers , Mr. Storin’s testimony made it clear that the decision to retain TMG was made not by
Mr. Althoff, but by the City’s attorneys (consistent with the Declaration of Cyril Vidergar,
previously submitted as Ex. A, Dkt. 58-1) in consultation with its project managers.
As the City explained in its briefing (Dkt. 58), TMG was hired in anticipation of litigation,
and its employees were the functional equivalent of City employees. Mr. Storin’s testimony
clearly demonstrates the direct role the City’s attorneys played in the decision to hire TMG.
Respectfully submitted this 12th day of July, 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
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CERTIFICATE OF SERVICE
I hereby certify that on July 12, 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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Exhibit H
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Michael Travis Storin
June 21, 2022
1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
2
Civil Action Number 21-cv-02063-DDD-NYW
3
CITY OF FORT COLLINS,
4
Plaintiff,
5
vs.
6
OPEN INTERNATIONAL, LLC, et al.,
7
Defendants.
8
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9 VIDEOTAPE DEPOSITION OF MICHAEL TRAVIS STORIN
June 21, 2022
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Michael Travis Storin
June 21, 2022
1 advice of counsel. I just want to understand: What
2 was your purpose in meeting with them?
3 MR. COLLARD: Same objection. Same
4 instruction.
5 A I think in the most general terms, the City
6 desired a third-party objective assessment of the
7 health of the project.
8 Q (By Mr. Swanson) Who first proposed hiring
9 TMG Consulting?
10 MR. COLLARD: Same privilege objection and
11 same instruction.
12 You can answer.
13 Q (By Mr. Swanson) And I can rephrase this
14 to try to help that. If you know, independent of
15 advice or information provided to you by counsel, who
16 first proposed hiring TMG Consulting?
17 MR. COLLARD: Same objection. Same
18 instruction.
19 A The proposed assessment I think was first
20 suggested by Coy Althoff. And shortly after, we began
21 interfacing with legal counsel.
22 Q (By Mr. Swanson) When was that: that it
23 was suggested by Mr. Althoff?
24 A I don't recall specifically. I believe it
25 would likely fall in the same time frame of late in
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Michael Travis Storin
June 21, 2022
1 fine. But again, just answer that question that he
2 asked rather than going any further, so we avoid any
3 privilege issue.
4 A One more time, please, the specific wording
5 of the question.
6 Q (By Mr. Swanson) If you know independent
7 of what you have learned only through counsel, who
8 were the individuals within the organization who
9 reached a consensus to hire TMG?
10 A There was agreement amongst our legal
11 counsel, our City manager, myself, Ms. Connor, Mr.
12 Wilkins.
13 Q Was Mr. Althoff part of that decision? And
14 let me be clear: I mean the decision, not part of the
15 discussion. But was he a decision-maker on that? Did
16 he hold a vote, so to speak, on whether this would
17 happen?
18 A I think I can characterize his involvement
19 as a recommendation.
20 Q Okay. Was Mr. Keane, Coleman Keane, a
21 decision-maker as part of that consensus group?
22 A I don't recall. But as a key stakeholder,
23 I believe he would have had a share of those decision
24 rights.
25 Q You mentioned that you reported to Mr.
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