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.
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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.
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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
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