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HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 089 - Open's Resp Re Mot Restrict 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 IN OPPOSITION TO THE CITY’S MOTIONS TO RESTRICT Defendants and Counterclaimant Open International, LLC and Open Investments, LLC (together, “Open”) respectfully oppose the Plaintiff and Counter-Defendant City of Fort Collins’s (the “City”) Motions to Restrict Access (Dkts. 79 & 85). These are the City’s fifth and sixth motions to seal documents. As before, the City has failed to articulate specific protectable interests in the documents it seeks to seal or any particular harm that would result from honoring the presumption in favor of public access to judicial records. The City’s motions therefore should be denied. “Courts have long recognized a common-law right of access to judicial records.” Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007). While that right is not absolute, it entails a “strong presumption in favor of public access” that cannot be rebutted unless “countervailing interests heavily outweigh the public interests in access.” Id. See also Johnstown Feed & Seed, Inc. v. Cont’l W. Ins. Co., 2009 U.S. Dist. LEXIS 23507, at *3 (D. Colo. Mar. 26, 2009) (elaborating on judicial duty to “avoid secrecy,” which is “anathema to a free society”). To Case 1:21-cv-02063-DDD-NYW Document 89 Filed 07/21/22 USDC Colorado Page 1 of 4 -2- overcome the presumption, a party seeking to seal court records must “articulate a real and substantial interest that justifies depriving the public of access to the records that inform [judicial] decision-making” and demonstrate that “disclosure will work a clearly defined and serious injury.” Sacchi v. IHC Health Servs., Inc., 918 F.3d 1155, 1160 (10th Cir. 2019) (quotations and citations omitted); United States v. Walker, 761 F. App’x 822, 834 (10th Cir. 2019) (quotations and citations omitted); accord D.C.COLO.LCivR 7.2(c). The City seeks to restrict access to two categories of documents with the motions at Dockets 79 and 85: (1) portions of counsel’s correspondence that generally characterize the City’s engagements with third parties Vanir and TMG, see Dkt. 79 ¶¶ 7-8, and (2) Vanir’s assessment of risks and recommendations for the project at issue in this case, See Dkt. 85 ¶¶ 4-7. The City does not and cannot carry the heavy burden to justify sealing counsel’s references to a handful of provisions from contracts at issue in this case. Those references do not disclose trade secrets or other competitively sensitive information of the City or its contractual counterparties; rather, they refer to the work that those counterparties were retained to perform in relation to the project at issue in this case. The City has not articulated a real and substantial interest that justifies sealing these references to relevant contracts, and it has not clearly defined any serious injury that would result if those references are not redacted. Nor has the City justified its request to withhold from public view Vanir’s assessment of the project at issue in this case, let alone to preclude Open from using the memo at all, publicly or under seal. Dkt. 85 ¶ 5. The City does not identify particular sentences, paragraphs, or even pages with sensitive information that justify sealing. That’s because even a quick review of the Vanir memo confirms that it does not disclose any proprietary information of third-party Vanir Case 1:21-cv-02063-DDD-NYW Document 89 Filed 07/21/22 USDC Colorado Page 2 of 4 -3- or competitively sensitive information about the City. Nor has the City made a showing of specific harm that would befall the City or Vanir if the memo is not sealed. The memo identifies the City’s shortcomings in relation to the project and the City’s potential liability to Open— issues the City put squarely at issue when it commenced this action. The memo threatens to harm only the City’s claims and defenses in this case, and that potential harm does not justify sealing. After publicly accusing Open of fraud and breach of contract, the City should not be permitted to restrict public access to a memo that the City shared with Open long before the litigation—thus waiving any privilege—and that belies the City’s present claims against Open. For these reasons, the City’s motions to restrict at Dockets 79 and 85 should be denied. Dated: July 21, 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 Holland & Hart LLP 555 17th Street, Suite 3200 Denver, Colorado 80202 Telephone: 303-295-8000 Attorneys for Defendants Open International, LLC and Open Investments, LLC 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 brief contains 649 words. s/ Paul D. Swanson Case 1:21-cv-02063-DDD-NYW Document 89 Filed 07/21/22 USDC Colorado Page 3 of 4 -4- CERTIFICATE OF SERVICE I hereby certify that on the 21st day of July, 2022, the foregoing was electronically filed with the Clerk of Court using the Court’s electronic filing system and that a copy of the foregoing was sent to all counsel of record via same in compliance with the Federal Rules of Civil Procedure and the Local Rules of this Court. s/ Paul D. Swanson Case 1:21-cv-02063-DDD-NYW Document 89 Filed 07/21/22 USDC Colorado Page 4 of 4