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HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 086 - Open's Resp City's Notices Re Privilege Logs And Supplemental Submission 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 TO CITY’S NOTICES REGARDING PRIVILEGE LOGS AND NOTICE OF SUPPLEMENTAL SUBMISSION OF SORTABLE/FILTERABLE LOGS On June 30, 2022, the Court ordered Plaintiff and Counter-Defendant City of Fort Collins (the “City”) to submit privilege logs for documents implicated by pending motions related to third parties TMG Consulting and Vanir Construction. Dkt. 73. On July 12, 2022, the City submitted notices of two privilege logs. Dkts. 82-83. Defendants and Counterclaimant Open International, LLC and Open Investments, LLC (together, “Open”) respectfully respond to the City’s notices and provide notice of a supplemental submission, via email to Judge Wang’s Chambers, of sortable and filterable versions of the privilege logs.1 The logs identify five lawyers for the City: outside counsel Case Collard of Dorsey & Whitney (Dorsey) and City Attorney’s Office (CAO) lawyers Carrie Daggett, John Duval, Cyril 1 The City provided Open with PDFs of its privilege logs on July 11, 2022. That day, Open requested copies of the privilege logs in their original sortable and filterable spreadsheet form, but the City did not respond. Open therefore converted the PDFs provided by the City into the spreadsheets that Open is submitting to the Court via email. Case 1:21-cv-02063-DDD-NYW Document 86 Filed 07/15/22 USDC Colorado Page 1 of 3 -2- Vidergar, and Judy Schmidt. Sortable and filterable versions of the City’s logs will assist the Court’s consideration of the pending motions regarding TMG Consulting and Vanir Construction because sorting and filtering the logs will allow the Court to confirm that: 1. Of the 699 TMG-related documents logged by the City, the TMG log shows that: a. One document was authored by an attorney (PRIV000066); b. Six other documents were sent by an attorney (PRIV000051, -065, -070, 095, -187, -566); c. Forty other documents were sent to an attorney (PRIV000034, -035, -041, -067, -070, -074, -086, -095, -101, -107, -116, -131, -141, -145, -155, -170, -199, -216, -225, -234, -249, -259, -286, -312, -344, -417, -456, -475, -477, -493, -494, -504, -506, -522, -546, -551, -569, -597, -599, 643); and d. Eight other documents included an attorney in copy or blind copy (PRIV0000042, -056 -113, -129, -133, -331, -505, -595).2 2. Of the 149 Vanir-related documents logged by the City, the Vanir log shows that: a. Seven documents were authored by an attorney (PRIV000749, -755, -769, -773, -778, -793, -795); b. Four other documents were sent by an attorney (PRIV000748, -768, -792, -839); c. Thirty-five other documents were sent to an attorney (PRIV000715, -721, -728, -733, -735, -737, -743, -746, -752, -754, -756, -763, -765, -766, - 770, -771, -772, -774, -775, -782, -788, -794, -796, -805, -808, -809, -812, -813, -816, -819, -823, -825, -832, -835, -841); and d. Six other documents included an attorney in copy or blind copy (PRIV000727, -729, -757, -759, -761, -806). 2 The City’s identification of lawyers on only 55 out of 699 withheld TMG-related documents aligns with the testimony of Travis Storin in the City’s recent Notice of Supplemental Record, Dkt 80. Mr. Storin testified that non-lawyer Coy Althoff drove the plan to retain TMG and, although the City “interface[ed] with legal counsel” about that, the City hired TMG for a non- legal reason: because “the City desired a third-party objective assessment of the health of the project.” Dkt. 80-1 at 34:1-21. Like Mr. Storin’s testimony, the nugatory attorney involvement in the logged TMG documents reinforces that the but-for cause of hiring TMG was not litigation, so communications with TMG are not subject to privilege or work product protection. Case 1:21-cv-02063-DDD-NYW Document 86 Filed 07/15/22 USDC Colorado Page 2 of 3 -3- Furthermore, filtering the logs will allow the Court to confirm that, of the hundreds of logged “attachment[s] to privileged parent[s],” most do not identify the supposedly privileged parents; do not list an attorney author, sender, or recipient; and do not state the privilege basis for the attachments themselves, many of which were authored by individuals outside the City, including Open employees like Diego A. Soto. See, e.g., PRIV000351-416. Dated: July 15, 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 Hannah E. Armentrout, hearmentrout@hollandhart.com Holland & Hart LLP 555 17th Street, Suite 3200 Denver, Colorado 80202 Telephone: 303-295-8000 Attorney for Defendants and Counter-Plaintiff 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 response contains 617 words. s/ Paul D. Swanson CERTIFICATE OF SERVICE I certify that on the foregoing was electronically filed with the Clerk of Court using the Court’s electronic filing system and thereby served on all counsel of record on July 15, 2022. s/ Paul D. Swanson Case 1:21-cv-02063-DDD-NYW Document 86 Filed 07/15/22 USDC Colorado Page 3 of 3