The URL can be used to link to this page

Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 122 - Dfs' Mot Exclude Frey W Exhibit IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 2021-cv-02063-CNS-MEH CITY OF FORT COLLINS, Plaintiff, vs. OPEN INTERNATIONAL, LLC, OPEN INVESTMENTS, LLC. Defendants. DEFENDANTS’ MOTION TO EXCLUDE OPINION TESTIMONY BY CITY’S PROFFERED NON-RETAINED EXPERT MICHELLE FREY Pursuant to Fed. R. Civ. P. 37(c)(1), Defendants Open International, LLC and Open Investments, LLC (together, “Open”) hereby move to exclude any opinion testimony by the City of Fort Collins’s proffered non-retained expert Michelle Frey. The City’s disclosure of Dr. Frey’s opinion testimony lists several topics, but it does not summarize any opinions or the facts that support them. As a result, the City should not be permitted to elicit at trial Dr. Frey’s opinion testimony under Fed. R. Evid. 702. CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCIVR 7.1(A) Counsel for Open first conferred with counsel for the City regarding the substance of this motion on November 2, 2022, by notifying the City in writing of the deficiency of Dr. Frey’s disclosure so that the City could timely supplement its disclosure. The City declined to Case 1:21-cv-02063-CNS-MEH Document 122 Filed 12/19/22 USDC Colorado Page 1 of 5 2 supplement, so on December 15, 2022, counsel for Open conferred by telephone with counsel for the City about this motion, which the City opposes. BACKGROUND Dr. Frey has been a disclosed fact witness since the parties exchanged initial disclosures in September 2021. Open thereafter sought Dr. Frey’s fact deposition, which the parties set for October 12, 2022. At 4:06 p.m. on October 10, 2022, the City served its “Disclosure of Hybrid/Non-Retained Witness” (the “Frey Disclosure”) under Fed. R. Civ. P. 26(a)(2)(C), which is attached hereto as Exhibit 1. ARGUMENT If a party seeks to offer testimony of an unretained expert witness, the party must disclose “the subject matter on which the witness is expected to present” expert testimony and “a summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). The City’s disclosure for Dr. Frey does not satisfy this standard because it does not disclose any facts or opinions—in summary form or otherwise—to which Dr. Frey is expected to testify. By its own terms and in substance, the disclosure lists only the “subject matters” about which Dr. Frey will testify. Ex. 1 at 1-2. This prevents Open from adequately preparing to cross-examine Dr. Frey about her expert opinions and the facts underlying them, including by deposition. “Rule 26(a)(2) disclosure obligations cannot be ignored or dismissed as a mere formality.” Nosewicz v. Janosko, 2019 U.S. Dist. LEXIS 153242, at *12 (D. Colo. Aug. 19, 2019) (citations and quotations omitted). Although Rule 26(a)(2)(C) clearly imposes a lighter disclosure burden than Rule 26(a)(2)(B), by the Rule’s plain language, a disclosure of mere Case 1:21-cv-02063-CNS-MEH Document 122 Filed 12/19/22 USDC Colorado Page 2 of 5 3 subject matter is insufficient. “[W]hile a disclosure need not outline each and every fact to which the non-retained expert will testify or outline the anticipated opinions in great detail, it should provide a brief account that states the main points of the entirety of the anticipated testimony.” Seeley v. Home Depot U.S.A., Inc., 2018 U.S. Dist. LEXIS 152421, at *12 (D. Colo. Sept. 6, 2018). “‘At a minimum, the disclosure should obviate the danger of unfair surprise regarding the factual and opinion testimony of the non-retained expert’” and “must ‘summarize actual and specific opinions.’” Nosewicz, 2019 U.S. Dist. LEXIS 153242, at *12 (quoting Hayes v. Am. Credit Acceptance, LLC, 2014 U.S. Dist. LEXIS 110844, at *3 (D. Kan. Aug. 12, 2014)). The City’s disclosure falls short. It lists only a half-dozen topics Dr. Frey would testify about, but those topics provide “no meaningful understanding of the subject matter of [Dr. Frey’s] opinions or their factual basis and are thus insufficient under Rule 26(a)(2)(C).” Estate of Barton Grubbs v. Weld County Sheriff’s Office, 2018 U.S. Dist. LEXIS 237488, *7 (D. Colo. July 20, 2018). Disclosing a “bullet point list of topics that [an expert will] testify about but fail[ing] to ‘provide any information regarding the opinions of the experts with respect to the topic’” is insufficient. United States v. Durango & Silverton Narrow Gauge R.R. Co., 2020 U.S. Dist. LEXIS 181926, *5 (D. Colo. Oct. 1, 2020) (quoting Acevedo v. NCL (Bahamas) Ltd., 317 F. Supp. 3d 1188, 1198 (S.D. Fla. 2017)); see also Energy Drilling, LLC v. Pac. Energy & Mining Co., 2016 U.S. Dist. LEXIS 140968, *18 (D. Wyo. Apr. 1, 2016) (rejecting Rule 26(a)(2)(C) disclosure that lacked “any specific opinions, any independent evidence, or the underlying factual assertions that corroborate or expound on their testimony” because “[i]t is insufficient to state the general subject matter for which each expert will testify”); see also McKinney v. Granite Peak Fabrication, LLC, 2021 U.S. Dist. LEXIS 254764, *17-18 (D. Wyo. Case 1:21-cv-02063-CNS-MEH Document 122 Filed 12/19/22 USDC Colorado Page 3 of 5 4 Oct. 27, 2021) (striking expert designation because disclosure omitted summary of facts and opinions, leaving opposing party “unable to prepare to conduct a cross-examination of the witness” and preventing court from “fulfill[ing] its gate keeper function”). Accordingly, and because the City already rejected Open’s invitation to supplement, Open respectfully requests that the Court exclude Dr. Frey from testifying as an expert to opinions that have not been disclosed. Open will be prejudiced if it is forced to prepare for trial without any information about Dr. Frey’s opinions or the facts she relies on in reaching them. Dated: December 19, 2022 Respectfully submitted, s/ Paul D. Swanson Paul D. Swanson Alexander D. White Anna C. Van de Stouwe Alexandria E. Pierce HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Denver, Colorado 80202 Phone: (303) 295-8000 pdswanson@hollandhart.com adwhite@hollandhart.com acvandestouwe@hollandhart.com aepierce@hollandhart.com ATTORNEYS FOR DEFENDANTS Case 1:21-cv-02063-CNS-MEH Document 122 Filed 12/19/22 USDC Colorado Page 4 of 5 5 CERTIFICATE OF SERVICE I hereby certify that on the 19th day of December, 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 20535045_v2 Case 1:21-cv-02063-CNS-MEH Document 122 Filed 12/19/22 USDC Colorado Page 5 of 5 Exhibit 1 Case 1:21-cv-02063-CNS-MEH Document 122-1 Filed 12/19/22 USDC Colorado Page 1 of 4 IN 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’S DISCLOSURE OF HYBRID/NON-RETAINED WITNESS Plaintiff the City of Fort Collins (the “City”), by and through its undersigned counsel and pursuant to Federal Rule of Civil Procedure 26(a)(2)(C), hereby makes the following disclosure of persons who may present evidence at trial as a non-retained expert witness: I. HYBRID/NON-RETAINED EXPERT WITNESS The following person is expected to testify as a hybrid fact and non-retained expert witness pursuant to Fed. R. Civ. P. 26(a)(2)(C): Michelle Frey, PhD c/o DORSEY & WHITNEY LLP 1400 Wewatta Street, Suite 400 Denver, CO 80202 collard.case@dorsey.com, (303) 352-1116. Dr. Frey will testify regarding the following subject matters: Case 1:21-cv-02063-CNS-MEH Document 122-1 Filed 12/19/22 USDC Colorado Page 2 of 4 2 • Dr. Frey’s experience in project management, RFP responses, and software implementation projects. • What a functional matrix is, how a functional matrix is used in a software implementation project, and how it was used in this project. • Project management of software implementation projects including implementing highly configurable software as compared to implementing software which is not highly configurable and requires development as a part of (or prior to) implementation. The issues that are created by trying to implement software that it not highly configurable (including the strain on resources, the large number of releases required, etc.). • The nature of implementation projects and how customer decisions (like staffing) are based on representations made by the vendor—the expert on its system—including the out-of-box functionality representations and the project schedule determined by the vendor. • How delays and risks are addressed in implementation projects with fixed fee contracts, including the use of change order procedures, and how vendors assume risk during the project when operating without change orders. • Expected functionality in the U.S. market for billing software including functionality in billing and sales and how those issues were addressed or not addressed in the Open Smartflex system. The City reserves the right to modify, supplement, and/or amend these disclosures at any time. Respectfully submitted this 10th day of October, 2022. DORSEY & WHITNEY LLP s/ Andrea Ahn Wechter 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 122-1 Filed 12/19/22 USDC Colorado Page 3 of 4 3 CERTIFICATE OF SERVICE I hereby certify that on October 10, 2022, I caused the foregoing document to be served electronically via e-mail 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/ Wynter Wells DORSEY & WHITNEY LLP Case 1:21-cv-02063-CNS-MEH Document 122-1 Filed 12/19/22 USDC Colorado Page 4 of 4