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