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Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 170 - City Mot Restrict 151IN 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 and Opinion of the City’s Expert Jon Brock [Dkt. 151] and specific 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. ARGUMENT 1. This Court entered the parties’ Stipulated Protective Order on October 14, 2021 Case 1:21-cv-02063-CNS-MEH Document 170 Filed 01/20/23 USDC Colorado Page 1 of 5 2 [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 January 6, 2023, Defendants filed their Motion to Exclude Testimony and Opinion of the City’s Expert Jon Brock [Dkt. 151] (the “Motion”) and supporting exhibits [Dkt. 151-1—12].1 5. Pursuant to D.C.COLO.LCivR 7.2, the City hereby moves to retain Level 1 restriction to the Motion and Exhibits A-C [Dkt. 151-1—3], Exhibit F [Dkt. 151-6], and Exhibits J-L [Dkt. 151-10—12]. 6. 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. 7. Exhibit A and B [Dkt. 151-1—2] are copies of the City’s expert reports. 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 1 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 129, to comply with the court’s 15-page limit by January 6, 2023. Case 1:21-cv-02063-CNS-MEH Document 170 Filed 01/20/23 USDC Colorado Page 2 of 5 3 concerning third parties. 8. Exhibits C and F [Dkt. 151-3 and 151-6] are copies of Open’s expert report and erratum. They are designated as Confidential pursuant to the Stipulated Protective Order and contain confidential and proprietary information as well as information concerning third parties. 9. Exhibits J-L [Dkt. 151-10—12] are excerpts of deposition transcripts or exhibits 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 Exhibits, these deposition exhibits and transcripts were designated as such pursuant to the Stipulated Protective Order because they 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. Redaction of the Motion and these specific Exhibits is not a reasonable or practical alternative because they consist almost entirely of confidential and or highly confidential information. CONCLUSION Wherefore, the City respectfully requests that the Court maintain Level 1 restriction on Open’s Motion to Exclude Testimony and Opinion of the City’s Expert Jon Brock [Dkt. 51] and supporting Exhibits A-C [Dkt. 151-1—3], Exhibit F [Dkt. 151-6], and Exhibits J-L [Dkt. 151-10— 12], and for such further relief as this Court deems just and proper. Case 1:21-cv-02063-CNS-MEH Document 170 Filed 01/20/23 USDC Colorado Page 3 of 5 4 Respectfully submitted this 20th 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 Case 1:21-cv-02063-CNS-MEH Document 170 Filed 01/20/23 USDC Colorado Page 4 of 5 5 CERTIFICATE OF SERVICE I hereby certify that on January 20, 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 170 Filed 01/20/23 USDC Colorado Page 5 of 5