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Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 085 - City Mot Restrict Access 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 Exhibit B to Open’s Response in Opposition to the City’s Motion for Protective Order to Require Defendants’ Compliance with the October 14, 2021 Stipulated Protective Order [Dkt. 74-2]. 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. Case 1:21-cv-02063-DDD-NYW Document 85 Filed 07/15/22 USDC Colorado Page 1 of 6 2 ARGUMENT 1. On June 17, 2022, the City filed its Motion for Protective Order to Require Defendants’ Compliance with the October 14, 2021 Stipulated Protective Order [Dkt. 64] (the “Motion for Protective Order”). 2. On July 1, 2022, Open filed its Response in Opposition to the Motion for Protective [Dkt. 74] (the “Response”), with supporting exhibits A-D [Dkt. Nos. 74-1 through 74-4]. 3. Pursuant to D.C.COLO.LCivR 7.2, the City hereby submits a proposed redacted version of Exhibit B to the Response [Dkt. 74-2], removing any references to confidential and privileged material contained within. 4. Exhibit B [Dkt. 74-2] is a December 3, 2021 letter from Open’s counsel, Paul Swanson, to the City’s counsel, Case Collard, regarding the propriety of Dorsey & Whitney representing third parties. On page two of the letter, footnote 3, the letter quotes a January 29, 2020 memorandum drafted by Dr. Michelle Frey. The memorandum is then attached in its entirety as an exhibit to the letter. 5. As the City has asserted in numerous motions, the January 29, 2020 memorandum is subject to the deliberative process privilege and was improperly obtained by Open after this litigation began. See, e.g., City’s Motion to Quash Defendants’ Subpoena on Vanir Construction Management, Inc. and for Protective Order (“Motion to Quash”) [Dkt. 45] at 8; June 7, 2022 Motion to Restrict Access [Dkt. 53] (seeking to restrict to level 1 access copies of the same memorandum that is at issue here); Reply in Support of Motion to Quash [Dkt. 68] at 9; Motion for Protective Order [Dkt. 64] at 3-4, 8, n.3, 12. In fact, the City notified Defendants that it considered this memorandum privileged and requested Open to destroy all copies of the Case 1:21-cv-02063-DDD-NYW Document 85 Filed 07/15/22 USDC Colorado Page 2 of 6 3 memorandum. See Reply in Support of Motion to Quash [Dkt. 68] at 9. To date, Defendants have refused to do so. Rather, they continue to use it as part of their motions practice. 6. Specifically, as further set forth in the City’s June 7, 2022 Motion to Restrict Access [Dkt. 53], the January 29, 2020 memorandum contains privileged and confidential internal information regarding risk mitigation and issues concerning the project, including detailed recommendations to the City as to how to move forward. Id. at 2-3. Multiple versions of the same memorandum exist, each containing substantially similar information and one of which is stamped as “Pre-decisional material subject to protection under common law governmental deliberative process privilege; C.R.S. §24-72-204(3)(a)(XIII).” See Dkt. 43-1. 7. Public disclosure of the memorandum risks harm to the City as it contains information that was intended to remain privileged, confidential, and internal in order to candidly discuss the project internally and analyze how the City should move forward. See DOI v. Klamath Water Users Protective Ass'n, 121 S. Ct. 1060, 1065-66 (2001) (the deliberate process privilege protects against the disclosure of pre-decisional and deliberative documents prepared by the government, and the privilege “rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions by protecting open and frank discussions among those who make them within the Government”). 8. For the foregoing reasons, the City submits a redacted version of Exhibit B that removed the confidential quotations from the memorandum in the letter as well as the entirety of the attached privileged memorandum. See Exhibit 1. Case 1:21-cv-02063-DDD-NYW Document 85 Filed 07/15/22 USDC Colorado Page 3 of 6 4 CONCLUSION Wherefore, the City respectfully requests that the Court enter the redacted Exhibit B to the Response (attached hereto as Exhibit 1) and for such further relief as this Court deems just and proper. Respectfully submitted this 15th day of July, 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 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 Case 1:21-cv-02063-DDD-NYW Document 85 Filed 07/15/22 USDC Colorado Page 4 of 6 5 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 677 words. s/ Maral J. Shoaei Case 1:21-cv-02063-DDD-NYW Document 85 Filed 07/15/22 USDC Colorado Page 5 of 6 6 CERTIFICATE OF SERVICE I hereby certify that on July 15, 2022, I caused the foregoing document to be electronically filed 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/ Maral J. Shoaei Dorsey & Whitney LLP Case 1:21-cv-02063-DDD-NYW Document 85 Filed 07/15/22 USDC Colorado Page 6 of 6 Exhibit 1 Case 1:21-cv-02063-DDD-NYW Document 85-1 Filed 07/15/22 USDC Colorado Page 1 of 10 EXHIBIT B Case 1:21-cv-02063-DDD-NYW Document 74-2 Filed 07/01/22 USDC Colorado Page 1 of 9Case 1:21-cv-02063-DDD-NYW Document 85-1 Filed 07/15/22 USDC Colorado Page 2 of 10 Paul D. Swanson Partner Phone 303.295.8578 pdswanson@hollandhart.com 7) WK6WUHHW6XLWH'HQYHU&2 0DLOWR32%R['HQYHU&2 ZZZKROODQGKDUWFRP $ODVND &RORUDGR ,GDKR 0RQWDQD 1HYDGD 1HZ0H[LFR 8WDK :DVKLQJWRQ'& :\RPLQJ December 3, 2021 Case Collard Dorsey & Whitney LLP 1400 Wewatta Street, Suite 400 Denver, Colorado 80202-5549 Re: Response to Dorsey & Whitney’s November 15, 2021 Letter Regarding Asserted Representation of Third Parties Dear Case: Thank you for your November 15, 2021 letter (“Collard Ltr.”) in response to our inquiry regarding Dorsey & Whitney’s representation of certain third -party individuals who are not employed by the City of Fort Collins. We appreciate you confirming that your firm does not represent those individuals. We write now to address certain factual and legal misapprehensions in your letter and to clarify counsels’ respective ethical obligations. First, regarding your assertions about Open’s disclosures, your letter is simply mistaken. Open did disclose Mr. Diego Felipe Lopez Gaviria. See Sept. 9, 2021 Open’s Initial Disclosures § I.3. Regarding Mr. Jairo Contreras, he remains an active employee of Open International, and he communicates regularly with my firm about the litigation, so he is properly contacted only through my firm. Finally, as of September 9, Mr. Dwayne Bishop was not someone we had determined was likely to have discoverable information that Open would use to support its claims or defenses. If we had determined that Mr. Bishop possessed such information, we would have disclosed him. But we would not have sought to shield him by falsely stating that we represent him. Second, regarding the City’s former employees and its retained agents from TMG and Vanir, your letter fails to grasp the thrust of our inquiry. We sought to determine whether Dorsey & Whitney represents those individuals because, if you do not, then there is no legal or ethical bar to Holland & Hart communicating with them directly. See Colo. RPC 4.2 cmt. 7. We are aware of our ethical duties not to inquire about matters subject to the City’s privilege or to otherwise induce any violation of the City’s rights. See id. But given your plan to “offer[] to represent” those individuals if Open seeks to speak with them, see Collard Ltr. at 1, we are concerned that Dorsey & Whitney is unaware of its ethical obligations, namely: not to solicit third-party witnesses as clients,1 not to engage third-party witnesses in order to shield them from 1 See Colo. RPC 7.3; see also Mid-State Aftermarket Body Parts, Inc. v. MQVP, Inc., No. 4:03CV00733, 2009 U.S. Dist. LEXIS 41914, at *11-14 (E.D. Ark. May 4, 2009) (observing that “whenever a lawyer for a party solicits a nonparty witness to be his client, the appearance will be Case 1:21-cv-02063-DDD-NYW Document 74-2 Filed 07/01/22 USDC Colorado Page 2 of 9Case 1:21-cv-02063-DDD-NYW Document 85-1 Filed 07/15/22 USDC Colorado Page 3 of 10 Case Collard December 3, 2021 Page 2 legitimate factual investigation,2 and not to undertake representation of individuals who are likely to offer testimony and other evidence adverse to the City that the City may wish to cross- examine.3 Your letter contends that it was “reasonable” to insert Dorsey & Whitney as a gatekeeper for “each and every known or unknown former employee” of the City even though your firm does not represent them. Collard Ltr. at 1. But that conduct is not reasonable; to the contrary, it is sanctionable. See Colo. Bar Ethics Op. No. 120 (“[I]t is improper for a lawyer who represents an organization to assert that he or she represents some or all of the constituents of the organization unless the lawyer reasonably believes he or she has in fact been engaged by the constituent or constituents.”); see also McCargo , 2011 U.S. Dist. LEXIS 4314, at *4-6, *9-10 (disregarding counsel’s assertion that it represented “each and every” constituent of organization and requiring statement “identifying every employee believed to have entered into an individual representation . . . together with all facts supporting that such an attorney-client relationship exists,” and imposing sanctions). Having brought these ethical duties and restrictions to your attention, we trust that your firm will abide them. Third, your assertions of privilege and work-product protection over the entirety of TMG and its personnel is overstated and improper. Separate from whatever non-testifying expert engagement TMG may have with Dorsey & Whitney, that firm and its employees Mr. Galluzzi given, whether justified or not, that the lawyer is trying to influence the witness ’s testimony” and “caution[ing] lawyers not to solicit a nonparty witness as a client in connection with a case in which the lawyer also represents a party”). 2 See McCargo v. Tex. Roadhouse, Inc., No. 09-cv-02889, 2011 U.S. Dist. LEXIS 4314, at *9-10 (D. Colo. Jan. 12, 2011) (sanctioning counsel for falsely asserting blanket representation of organization’s constituents when counsel had not been individually engaged by constituents and because false assertion prevented opposing counsel from interviewing witnesses). 3 See Colo. RPC 1.7 cmt. 6 (“directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client”); see also Mid-State Aftermarket, 2009 U.S. Dist. LEXIS 41914, at *12-13 (cautioning against potential conflict in dual representation where one client-witness contradicts another); Yost v. K Truck Lines, Inc., No. 03-2086, 2006 U.S. Dist. LEXIS 3286, at *10-12 (D. Kan. Jan. 27, 2006) (ordering that counsel cannot represent both company and employee and continuing trial date to allow time to retain new counsel). This is not an idle concern. Multiple individuals identified in our November 1 letter have given statements directly adverse to the City’s litigation position. See, e.g., Jan. 29, 2020 Memo of Dr. Frey, enclosed herewith as Exhibit 1 , at 1 . Presumably, the City will wish to discredit these statements, placing Dorsey & Whitney in an untenable position of divided loyalties if it represents these individuals. Case 1:21-cv-02063-DDD-NYW Document 74-2 Filed 07/01/22 USDC Colorado Page 3 of 9Case 1:21-cv-02063-DDD-NYW Document 85-1 Filed 07/15/22 USDC Colorado Page 4 of 10 Case Collard December 3, 2021 Page 3 and Mr. McClune are percipient fact witness in this matter. Mr. Galluzzi undertook an analysis of the project and delivered a report to both parties, not just to the City, and not to prepare the City for litigation. See Apr. 14, 2021 CIS Assessment Report, enclosed herewith as Exhibit 2, at 2 (“for use by City of Fort Collins (City), Open International and Open Investments”). That report and the interviews, documents, drafts, and communications related to it are therefore not protected work-product nor are they privileged. With respect to Mr. McClune, he served as a project manager for the City during the final half-year before the City purported to terminate the project, so he possesses key facts that are not subject to privilege. Whether or not it is advisable—or even permissible—to engage relevant fact witnesses as non-testifying experts, we are sure you’ll agree that you may not interfere with Open’s le gitimate efforts to investigate the facts that these individuals and TMG as an entity perceived and possess. Finally, if the third parties we identified in our November 1 letter engage Dorsey & Whitney, we reserve the right to inquire into the timing and the nature of those engagements to determine whether they were improperly solicited or were otherwise undertaken in an effort to improperly obstruct legitimate factual investigation. Further, given the City’s misleading disclosures, we will require copies of engagement letters in order to confirm that Dorsey & Whitney represents any of the third parties identified in our letter. This is not a matter of discovery but a matter of ethics. Very truly yours, Paul D. Swanson Partner of Holland & Hart LLP Case 1:21-cv-02063-DDD-NYW Document 74-2 Filed 07/01/22 USDC Colorado Page 4 of 9Case 1:21-cv-02063-DDD-NYW Document 85-1 Filed 07/15/22 USDC Colorado Page 5 of 10 Exhibit 1 Case 1:21-cv-02063-DDD-NYW Document 74-2 Filed 07/01/22 USDC Colorado Page 5 of 9Case 1:21-cv-02063-DDD-NYW Document 85-1 Filed 07/15/22 USDC Colorado Page 6 of 10 Utilities electric · stormwater · wastewater · water 222 Laporte Ave. PO Box 580 Fort Collins, CO 80522-0580 970.212.2900 V/TDD: 711 utilities@fcgov.com fcgov.com/utilities Case 1:21-cv-02063-DDD-NYW Document 74-2 Filed 07/01/22 USDC Colorado Page 6 of 9Case 1:21-cv-02063-DDD-NYW Document 85-1 Filed 07/15/22 USDC Colorado Page 7 of 10 Case 1:21-cv-02063-DDD-NYW Document 74-2 Filed 07/01/22 USDC Colorado Page 7 of 9Case 1:21-cv-02063-DDD-NYW Document 85-1 Filed 07/15/22 USDC Colorado Page 8 of 10 Case 1:21-cv-02063-DDD-NYW Document 74-2 Filed 07/01/22 USDC Colorado Page 8 of 9Case 1:21-cv-02063-DDD-NYW Document 85-1 Filed 07/15/22 USDC Colorado Page 9 of 10 cc: Ginny Sawyer, Policy Project Manager Case 1:21-cv-02063-DDD-NYW Document 74-2 Filed 07/01/22 USDC Colorado Page 9 of 9Case 1:21-cv-02063-DDD-NYW Document 85-1 Filed 07/15/22 USDC Colorado Page 10 of 10