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Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 092 - City Reply Re Mot Restrict AccessIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 21-cv-02063-CNS-MEH 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 REPLY IN SUPPORT OF MOTIONS TO RESTRICT ACCESS [DKTS 79 & 85] Open’s Response in Opposition to the City’s Motions to Restrict [Dkt. 89] mischaracterizes the standard under D.C.COLO.LCivR 7.2 and fails to recognize that in the case of Dkt. 85, the City is seeking to restrict public access to its own privileged material. Additionally, Open has made it clear that its real reason for opposing the City’s Motions to Restrict is not a concern over the public’s right to access information, but rather is its desire to subvert the parties’ Stipulated Protective Order and make public documents that the City has designated as privileged and/or confidential for the sake of allegedly protecting Open’s own business interests. First, with respect to the City’s July 6, 2022 Motion to Restrict Access [Dkt. 79], contrary to Open’s assertions, the City has articulated a real and substantial interest justifying redacting references to the City’s contract with TMG. Courts have recognized that the disclosure of Case 1:21-cv-02063-CNS-MEH Document 92 Filed 08/04/22 USDC Colorado Page 1 of 6 2 confidential business terms can harm a party’s competitive standing by revealing terms that the party is willing to contract for, and that there is a heightened interest in protecting the information of a third party. See Brill v. Correct Care Sols., LLC, Civil Action No. 16-cv-03078-WJM-NYW, 2018 U.S. Dist. LEXIS 240409, at *6 (D. Colo. Mar. 5, 2018) (granting motion to restrict professional services agreement where it was not otherwise publicly available and where dissemination of proprietary business information within could give competitors an unfair advantage); Cahey v. IBM, Civil Action No. 20-cv-00781-NYW, 2021 U.S. Dist. LEXIS 212793, at *4-5 (D. Colo. Apr. 2, 2021) (internal compensation structure was confidential and proprietary, the disclosure of which would harm the party seeking to restrict access); Platt v. Freedom Mortg. Corp., No. 10-968 (RBK/KMW), 2013 U.S. Dist. LEXIS 175032, at *31 (D.N.J. Dec. 10, 2013) (little public interest would be served by disclosing personal information like salary, and non-party in particular had privacy interest in such information); SBM Site Servs., LLC v. Garrett, Civil Action No. 10-cv-00385-WJM-BNB, 2011 U.S. Dist. LEXIS 41527, *9 (D. Colo. Apr. 12, 2011) (granting motion to restrict “business materials containing information that may be confidential” because it could harm litigant’s competitive standing); Hershey v. ExxonMobil Oil Corp., 550 F.App’x 566, 574 (10th Cir. 2013) (information which "could harm the competitive interests of third parties" may be properly restricted). In accordance with the above, redacting portions of emails that quote language from the TMG Statement of Work is justified because disclosing terms confidentially agreed to between the City and a non-party risks disclosing to competitors valuable information that can harm the competitive standing of both the City and the non-party. Open’s argument that quotations from a contract contained in an email are somehow different than the contract itself has no basis in case Case 1:21-cv-02063-CNS-MEH Document 92 Filed 08/04/22 USDC Colorado Page 2 of 6 3 law. Resp. at 2. The City has articulated a real and substantial interest in restricting access to contracts it entered into with third parties, and the Court should grant its July 6, 2022 Motion to Restrict Access [Dkt. 79]. Second, with respect to the City’s July 15, 2022 Motion to Restrict Access [Dkt. 85], Open misses the point entirely: the basis for the City’s Motion to Restrict Access to the Frey memorandum is the deliberative process privilege.1 As Open is well aware, the City has asserted the deliberative process privilege over the January 29, 2020 memorandum on the basis that 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.” Dkt. 85 at ¶ 7 (citing 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”)). The memorandum is not Open’s to use, and Open has provided no case law supporting its contention that the City must identify “particular sentences, paragraphs, or . . . pages with sensitive information that justify sealing” of a privileged document. See Resp. at 2. Because the Frey Memorandum is privileged pursuant to the deliberative process privilege and Open only obtained 1 As the City has asserted, it has not waived the privilege—rather, Open improperly obtained the memorandum. 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]; Reply in Support of Motion to Quash [Dkt. 68] at 9; Motion for Protective Order [Dkt. 64] at 3-4, 8, n.3, 12. Case 1:21-cv-02063-CNS-MEH Document 92 Filed 08/04/22 USDC Colorado Page 3 of 6 4 improper access to it by taking it, without authority, from the City following the initiation of this lawsuit (see Dkt. 85 at ¶ 5; Dkt. 62 at 2-7; Dkt. 84 at 5-7), access to the entire document, as well as the references to privileged material from the memorandum contained in Exhibit B [Dkt. 74-2], should be restricted. Third and finally, there is no compelling interest in granting public access to documents that the parties have agreed to designate as confidential pursuant to a protective order—Open willingly entered into the October 14, 2021 Stipulated Protective Order [Dkt. 32] (“SPO”), and Open treated the City’s confidential information with great care earlier in the parties’ relationship, zealously defending—to third parties—the City’s right to confidentiality under the confidentiality provision of the parties’ contracts and refusing to disclose protected confidential information to third parties. See Open_Intl_00320738 (“[Open] cannot unilaterally break a confidentiality agreement with [Fort Collins].”).2 However, since this litigation commenced, Open has sought to subvert the protections of the confidentiality provisions of the parties’ contract and also the SPO. The SPO lays out a process by which the parties can contest confidentiality designations, and fighting the City’s motions to restrict access to materials the City designated as confidential is not the proper procedure. See SPO § VI. Moreover, Open has made it clear that its real intent in fighting the City’s attempts to restrict access is its desire to protect its business interests by attempting to prove that it is not at fault in this litigation. See Resp. at 3 (“After publicly accusing Open of fraud and breach of contract, the City should not be permitted to restrict public access to [the Frey memorandum] . . . .”); see also Open’s Response in Opposition to City’s Motion for 2 The City can provide the relevant emails marked as “confidential” by Open should the Court request them. Case 1:21-cv-02063-CNS-MEH Document 92 Filed 08/04/22 USDC Colorado Page 4 of 6 5 Protective Order [Dkt. 74] at 2 (Open “has a significant non-litigation commercial interest in obtaining public versions of the Vanir memoranda because they could be shared with prospective business partners to show that the City’s derogatory claims against Open are spurious.”). Open’s desire to share confidential (not to mention privileged) documents with prospective business partners seeks to circumvent the protections agreed to by the Parties and does not justify ignoring the protections put into place by the SPO and does not outweigh the City’s articulated interests in restricting public access to confidential and/or privileged information. CONCLUSION Wherefore, the City respectfully requests that the Court grant its July 6 , 2022 and July 15, 2022 Motions to Restrict Access [Dkts. 79 and 85]. Respectfully submitted this 4th day of August, 2022. DORSEY & WHITNEY LLP s/ Case Collard 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-CNS-MEH Document 92 Filed 08/04/22 USDC Colorado Page 5 of 6 6 CERTIFICATE OF SERVICE I hereby certify that on August 4, 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/ Stacy Starr Dorsey & Whitney LLP Case 1:21-cv-02063-CNS-MEH Document 92 Filed 08/04/22 USDC Colorado Page 6 of 6