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Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 143 - City Mot Restrict (3)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 CITY OF FORT COLLINS’S MOTION TO RESTRICT ACCESS The City of Fort Collins (the “City”), by and through its undersigned counsel, respectfully requests that the Court maintain Level 1 restriction to Exhibits 1 and 2 its Motion to Exclude Expert Opinion of Defendants’ Expert John Hutchinson [Dkt. 128-1—2]. CERTIFICATION PURSUANT TO D.C.COLO.L.CivR 7.1 Undersigned counsel conferred with counsel for Defendants. Defendants oppose the relief requested herein, even on a provisional basis because they do “not believe there is an adequate basis to withhold public access to materials presented to the Court to support dispositive resolution of claims.” The City disagrees with Defendants’ position as this is not an operative filing since the parties need to re-file all of their Rule 702 motions by January 6, 2023 [Dkt. 139]. Case 1:21-cv-02063-CNS-MEH Document 143 Filed 01/03/23 USDC Colorado Page 1 of 4 2 ARGUMENT 1. This Court entered the parties’ Stipulated Protective Order on October 14, 2021 [Dkt. 32]. This Order provides that information related to the parties’ alleged business are either subject to a “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” designation in order to shield them from public disclosure. 2. The City filed several Motions to Restrict Access in 2022 [Dkts. 50, 53, 66, 69, 79, and 85]. 3. During the parties’ August 12, 2022 Discovery Conference, Judge Hegarty provisionally granted all of the Motions to Restrict Access [see Dkt. 96], stating that the Court would likely do the same for future motions as well. 4. On December 19, 2022, the City filed its Motion to Exclude Expert Opinion of Defendants’ Expert John Hutchinson [Dkt. 128] (the “Motion”) and supporting exhibits [Dkt. 128- 1—4]. 5. On December 27, 2022, the Court entered its Order Clarifying Rule 702 Briefing Order [Dkt. 139] ordering the parties to refile their existing Rule 702 motions, including Docket 128, to comply with the court’s 15-page limit by January 6, 2023. 6. Pursuant to D.C.COLO.LCivR 7.2, the City hereby moves to retain Level 1 restriction to Exhibits 1 and 2 to the Motion [Dkt. 128-1—2]. 7. The City requests the above restrictions in order to comply with the parties’ Protective Order and because good cause exists to restrict the documents from public access, as they refer to and consist of confidential and highly confidential information. Specifically, Exhibit 1 [Dkt. 128-1] is a copy of Open’s technical expert’s affirmative report and Exhibit 2 [Dkt. 128- Case 1:21-cv-02063-CNS-MEH Document 143 Filed 01/03/23 USDC Colorado Page 2 of 4 3 2] is a copy of Open’s technical expert’s rebuttal report. These are designated as Confidential pursuant to the Stipulated Protective Order and contain confidential and proprietary information. Further, Exhibit 1 contains and references numerous documents designated as Highly Confidential Attorney’s Eyes Only, including City personnel files, as well as information and documents concerning third parties. See Nichols v. Denver Health & Hosp. Auth., Civil Action No. 19-cv- 02818-DDD-KLM, 2020 U.S. Dist. LEXIS 260696, at *12-13 (D. Colo. Oct. 29, 2020) (finding that documents produced pursuant to protective order and designated as confidential that were attached to nondispositive motions were not subject to the common-law right of access). 8. Redaction of Exhibits 1 and 2 is not a reasonable or practical alternative because they consist almost entirely of confidential and or highly confidential information. 9. Furthermore, since the City will be re-filing its Motion per the Court’s December 27 Order [Dkt. 139] and therefore, the interest in protecting the parties’ confidential and proprietary information outweighs public access.1 CONCLUSION Wherefore, the City respectfully requests that the Court maintain Level 1 restriction on Exhibits 1 and 2 to its Motion to Exclude Expert Opinion of Defendants’ Expert John Hutchinson [Dkt. 128-1—2], and for such further relief as this Court deems just and proper. Respectfully submitted this 3rd day of January, 2023. DORSEY & WHITNEY LLP s/ Maral J. Shoaei Case Collard Andrea Ahn Wechter 1 Alternatively, the City seeks to withdrawal its Motion and supporting exhibits altogether so that no sealing is required. Case 1:21-cv-02063-CNS-MEH Document 143 Filed 01/03/23 USDC Colorado Page 3 of 4 4 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 CERTIFICATE OF SERVICE I hereby certify that on January 3, 2023, 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 Alexandra E. Pierce 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 aepierce@hollandhart.com Attorneys for Defendants s/ Stacy Starr Dorsey & Whitney LLP Case 1:21-cv-02063-CNS-MEH Document 143 Filed 01/03/23 USDC Colorado Page 4 of 4