HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 146 - City Mot Restrict 123IN 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 Open’s Motion to Exclude Testimony by
City’s Damages Expert [Dkt. 123] and supporting exhibits.
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].
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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, Defendants filed their Motion to Exclude Testimony by
the City’s Damages Expert [Dkt. 123] (the “Motion”) and supporting exhibits [Dkt. 123-1—11].
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
123, 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 the Motion and Exhibits D-E [Dkt. 123-4—5], Exhibit G [Dkt. 123-7], Exhibit I [Dkt.
123-9], and Exhibit K [Dkt. 123-11].
7. The City requests the above restriction 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.
8. Exhibits D and E [Dkt. 123-4—5], are copies of the City’s expert report and Open’s
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rebuttal report. They are designated as Confidential pursuant to the Stipulated Protective Order
and contain confidential and proprietary information. Further, they contain and reference
information and documents concerning third parties.
9. Exhibit G [Dkt. 123-7] consists of excerpts of deposition transcripts which have
also been designated as Confidential pursuant to the Stipulated Protective Order. Although the
Stipulated Protective Order is not an independent basis for restricting the Exhibit, this deposition
transcript was designated as such pursuant to the Stipulated Protective Order because the y contain
confidential information regarding the parties’ agreements and this dispute, including information
regarding third-parties subject to confidentiality agreements. See Nichols v. Denver Health &
Hosp. Auth., 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).
10. Exhibit I [Dkt. 123-9] is a copy of the City’s expert’s invoices. It is designated as
Confidential pursuant to the Stipulated Protective Order and contains confidential information of
a third-party.
11. Exhibit K [Dkt. 123-11] is a copy of a correspondence with TMG. It is designated
as Confidential pursuant to the Stipulated Protective Order and contains information with a third-
party subject to a NDA.
12. Redaction of the Motion and these specific Exhibits is not a reasonable or practical
alternative because they consist almost entirely of confidential information.
13. Furthermore, since Defendants will be re-filing their Motion per the Court’s
December 27 Order [Dkt. 139], the interest in protecting the parties’ confidential and proprietary
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information outweighs public access.
CONCLUSION
Wherefore, the City respectfully requests that the Court maintain Level 1 restriction on
Open’s Motion to Exclude Testimony by City’s Damages Expert [Dkt. 123] and supporting
Exhibits D-E [Dkt. 123-4—5], Exhibit G [Dkt. 123-7], Exhibit I [Dkt. 123-9], and Exhibit K [Dkt.
123-11], 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
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
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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
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