Loading...
HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 182 - City Mot Restrict 155IN 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 its Response in Opposition to Motion to Exclude Testimony by Non-Retained Expert Michelle Frey, PhD [Dkt. 155] and supporting exhibits C and E [Dkt. 155-3 and 155-5]. In support thereof, the City states as follows: 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. Case 1:21-cv-02063-CNS-MEH Document 182 Filed 01/23/23 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 January 9, 2023, the City filed its Response in Opposition to Motion to Exclude Testimony by Non-Retained Expert Michelle Frey, PhD (“Response”) [Dkt. 155] and supporting exhibits [Dkt. 155-1—7]. 5. Pursuant to D.C.COLO.LCivR 7.2, the City hereby moves to retain Level 1 restriction to the Response [Dkt. 155], as well as Exhibits C and E [Dkt. 155-3 and 155-5]. 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 information. 7. Exhibits C and E [Dkt. 155-3 and 155-5] consist 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, these deposition transcripts were designated as such pursuant to the Stipulated Protective Case 1:21-cv-02063-CNS-MEH Document 182 Filed 01/23/23 USDC Colorado Page 2 of 4 3 Order because they contain confidential information regarding the parties’ agreements and this dispute, as well as information regarding third parties not subject to this litigation. 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). 8. Although redaction of these specific Exhibits is not a reasonable or practical alternative because they consist almost entirely of confidential information, the City submits a redacted version of the Response that removes the confidential information referenced in Exhibits C and E. See Exhibit 1. CONCLUSION Wherefore, the City respectfully requests that the Court enter the redacted Response (attached hereto as Exhibit 1) and maintain Level 1 restriction on supporting Exhibits C and E [Dkt. 155-3 and 155-5, respectively], and for such further relief as this Court deems just and proper. Respectfully submitted this 23rd 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 182 Filed 01/23/23 USDC Colorado Page 3 of 4 4 CERTIFICATE OF SERVICE I hereby certify that on January 23, 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 182 Filed 01/23/23 USDC Colorado Page 4 of 4 Exhibit 1 Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 1 of 16 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 RESPONSE IN OPPOSITION TO MOTION TO EXCLUDE TESTIMONY BY NON-RETAINED EXPERT MICHELLE FREY, PhD The City of Fort Collins (the “City”), by and through its undersigned counsel, hereby submits this Response in Opposition to Defendants Open International, LLC and Open Investments, LLC’s (“Defendants” or “Open”) Motion to Exclude Testimony by City’s Proffered Non-Retained Expert Michelle Frey (the “Motion”) [Dkt. 122]. INTRODUCTION Open seeks to exclude testimony by the City’s hybrid/non-retained expert, Dr. Michelle Frey, claiming that the City failed to comply with the disclosure requirements pursuant to Rule 26(a)(2)(C). The standard for disclosing non-retained experts is significantly more lax than the standard for disclosing retained experts. Under the “brief summary” standard, and when viewed in light of other disclosures found to be in compliance by District of Colorado courts, the City’s Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 1 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 2 of 16 2 disclosure was sufficient. This is especially true considering Open’s familiarity with and own reliance on Dr. Frey and her opinions in its counterclaims and throughout its own case. Even if this Court were to find that the disclosure was not sufficient under this more lax standard, the City should be permitted to supplement its disclosure. Indeed, Open should not be permitted to present a one-sided set of opinions while excluding those unfavorable to its case. BACKGROUND As set forth in Open’s Motion, Dr. Michelle Frey was disclosed as a fact witness by both Parties in their respective initial disclosures. Mot., Dkt. 122 at 2. Open also relied on numerous allegations related to Dr. Frey’s opinions in its Counterclaims. Dr. Frey was brought on as the City’s second project manager during the course of the parties’ implementation project and made assessments and recommendations and developed opinions about the entire project based on her expertise and review. Open based its counterclaims on, in part, those assessments and opinions. For example, in the Counterclaims, Open relied on: (1) Dr. Frey’s competencies, skills, experience, and background as a project manager for software implementation projects; (2) allegations concerning Dr. Frey’s “extensive due diligence” of the City’s alleged deficiencies in its preparation of the project, staffing on the project, leadership and governance, and related recommendations concerning staffing and other issues; (3) Dr. Frey’s alleged analysis and determination that the project delays and costs were largely the responsibility of the City; and (4) the various recommendations allegedly made by Dr. Frey about the Project: Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 2 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 3 of 16 3 … Open’s Countercls. Dkt. 13, ¶¶ 83-87, 122. Following the filing of Open’s Counterclaims, the City provided the following disclosure in its Initial Rule 26(a)(1) Disclosures: City’s Initial Rule 26(a)(1) Disclosures, Ex. A at 4. Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 3 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 4 of 16 4 During discovery, Open continued to repeatedly rely on Dr. Frey’s analysis of the Project and related opinions and determinations. For example, in Open’s Responses to the City’s First Set of Interrogatories, Open relied on: (1) Dr. Frey’s identification of “risks” to successful completion of the Project; (2) Dr. Frey’s purported analysis and determination of the City’s failure to allocate necessary resources to the Project, define business resources for broadband, finalize business operations for the Project’s utilities component, make clear business decisions about how the Project will be implemented, coordinate enterprise level IT projects, and provide appropriate project governance and management; (3) Dr. Frey’s memorandum purportedly warned that the City had to prepared for ongoing Project “budget” issues and that it had “clear responsibilities assigned to it” under the Parties’ contracts; and (4) Dr. Frey’s purported allocation of responsibility for the Project delays based on her analysis of the Project. See Open’s Resp. to City’s First Set of Interrogatories, Ex. B at 24-26. Open likewise sent a subpoena to Vanir, Dr. Frey’s former employer, seeking significant documents related to Dr. Frey’s involvement in the Project. And Open otherwise repeatedly relied on Dr. Frey’s opinions in this action. See, e.g., Dkts. 43-1 and 43-2 (memoranda by Dr. Frey that Open attached to a motion); Dkt. 64 (the City’s Motion for Protective Order, detailing Open’s use of various memoranda drafted by Dr. Frey); Dkt. 74-1 (a Frey memorandum that Open attached to its Response to Dkt. 64); Dep. Tr. of L. Rosintoski, Dep. Tr. of H. Parrott, Ex. F at 445:1-15 (Open testifying about how Dr. Frey is “a very smart person, experienced project manager, very analytical, a straight talker, and very efficient project manager” as well as a “qualified project manager”). Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 4 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 5 of 16 5 Open also deposed Dr. Frey during discovery. Prior to that deposition, the City further disclosed Dr. Frey as a Hybrid/Non-Retained Expert Witness specifically to avoid a situation in which Open relied on some opinions of Dr. Frey and sought to exclude others and so that Open could depose Dr. Frey both as a fact and non-retained expert witness, should it choose to do so. Specifically, the City disclosed that Dr. Frey would testify regarding the following: City’s Disclosure of Hybrid/Non-Retained Witness, Ex. 1 to Mot., Dkt. 122-1. That is, the City’s disclosure of Dr. Frey as a non-retained witness built on and clarified what Open already relied on in support of its own case and counterclaims and what the City had already disclosed in initial disclosures. Indeed, all of the above items go towards and support Dr. Frey’s experience in project management and software implementation projects, as relied on by Open in its Counterclaims. In fact, Open repeatedly relied on everything that went into Dr. Frey’s “extensive due diligence” and Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 5 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 6 of 16 6 analysis of the project to make determinations and recommendations concerning the project issues, staffing issues, delays, risks to the project, and costs—including who was responsible for the same—throughout its counterclaims and case. Notwithstanding that, all of the above items also go towards the City’s disclosure of Dr. Frey in its Initial Rule 26(a)(1) disclosures as having information concerning “Defendants’ representations and failure to provide promised functionalities, outstanding issues, troubleshooting, and City staffing.” More importantly, they are aimed at presenting a complete set of assessments and opinions of Dr. Frey rather than the one- sided set of opinions Open seeks to present based on Dr. Frey’s expertise. During Dr. Frey’s deposition on October 12, 2022, Open questioned Dr. Frey on many of the issues related to the above items. See generally Dep. Tr. of M. Frey, PhD., Despite this, Open purported to distance itself from the City’s designation of Dr. Frey as a hybrid/non-retained expert witness by noting that Open’s deposition Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 6 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 7 of 16 7 of Dr. Frey was in her “personal capacity” and “reserve[ing] the right to separately notice a deposition of [her] as an expert witness during the expert discovery phrase.” Id. at 194:5-11 (emphasis added). Then, Open’s counsel ended Dr. Frey’s deposition early, declining to use its full seven hours on the record. See id. at 194:19-21. In any event, despite Open’s reservation of rights, it chose not to “separately notice” a deposition of Dr. Frey during the expert discovery phase, which closed on December 9, 2022. On November 2, 2022, counsel for Open emailed counsel for the City suggesting that the Frey disclosure was insufficient and that the City should consider supplementing it. See Ex. D. The City promptly replied two days later, informing Open’s counsel that it believed the disclosure was sufficient and providing relevant case law supporting its position. See id. Open took no further action until it filed this Motion on December 19, 2022. ARGUMENT As the various cases cited by Open in its Motion make clear, the standard for disclosure under Rule 26(a)(2)(C) is markedly different from that for retained experts. Given similar disclosures that this Court has found sufficient and since the overarching purpose of such a disclosure is to avoid surprise or prejudice to the non-disclosing party, the City’s disclosure of Dr. Frey was sufficient. However, should the Court find that it was not, the City should be allowed to supplement its disclosure because all relevant factors support allowing the City to do so. A. The City’s Disclosure of Dr. Frey As A Hybrid/Non-Retained Expert Witness Complies with Rule 26(a)(2)(C)’s Brief Summary Requirement. Disclosures under Rule 26(a)(2)(C) need only provide a “brief summary” of areas to which the non-retained expert will testify. See Jorgensen v. Ritz-Carlton Hotel Co. LLC, 2017 U.S. Dist. LEXIS 124659, at *21 (D. Colo. Aug. 8, 2017). Open concedes that the City has provided a brief Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 7 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 8 of 16 8 summary of the subject matters that Dr. Frey will testify to. See Mot., Dkt. 122 at 3 (“[the disclosure]lists only a half-dozen topics Dr. Frey would testify about”). The requirements under this rule “differ substantially” from the requirements for disclosing a retained expert. Id. (quoting Davis v. GEO Corp., 2012 U.S. Dist. LEXIS 34797, 2012 WL 882405, at *3 (D. Colo. Mar. 15, 2012). Under this lenient standard, courts have approved disclosures substantially similar to the City’s disclosure of Dr. Frey. As conceded by Open in its Motion, “[t]he caselaw on what constitutes an adequate disclosure for a non-retained expert (one who is not required to provide a written report) is not extensive.” United States v. Durango & Silverton Narrow Gauge R.R. Co., 2020 U.S. Dist. LEXIS 181926, at *4-5 (D. Colo. Oct. 1, 2020). Under the relevant case law, the City’s disclosure is adequate. For example, in Nagle v. Mink, the defendants moved to strike a disclosure that stated the non-retained experts would each “provide an opinion on Plaintiff’s diagnosis of diabetes.” Nagle v. Mink, 2011 U.S. Dist. LEXIS 97781, at *3 (D. Colo. Aug. 29, 2011). In their Motion to Strike Plaintiff’s Expert Disclosures, the defendants made arguments similar to those Open makes here. Specifically, those defendants argued: “there is no description of the opinion, no description of the effects observed, and no explanation as to the basis for concluding that the effects were related to the [medication] and not something else. Most troubling is Plaintiff’s repeated statement that each [witness] will provide an expert opinion that Plaintiff’s diabetes ‘affects a major life activity’ without identifying the particular life activity affected or describing how it was affected or what was observed.” See Ex. G. Magistrate Judge Hegarty rejected those arguments, emphasizing that the standard under Rule 26(a)(2)(C) differs substantially from that required of a retained expert. He instead found that the Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 8 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 9 of 16 9 disclosures at issue met the rule’s requirement that parties provide “a summary of facts and opinions to which the expert will testify.” Nagle, 2011 U.S. Dist. LEXIS 97781 at *17. Likewise, in Jorgensen v. Ritz-Carlton Hotel, Judge Hegarty found that a disclosure pursuant to Rule 26(a)(2)(C) was sufficient where it stated: “These individuals are expected to testify regarding their knowledge and experience and explain the reasonable steps that the Ritz- Carlton took to prevent water from entering onto the patron floor area. These individuals may discuss the nature of bar/restaurant drains and that it is impossible to prevent drain issues 100% of the time. These individuals will describe the reasonable steps Ritz-Carlton took to protect patrons from drain blockages and related water issues. These individuals are expected to testify consistent with their depositions, if taken.” 2017 U.S. Dist. LEXIS 124659, at *19-22 (“Rule 26(a)(2)(C)’s ‘brief summary’ requirement does not demand more detail.”). The City’s disclosure is not only on par with but exceeds these two examples of disclosures found sufficient by Judge Hegarty. The City’s disclosure states that Dr. Frey will testify about: her experience in project management, RFP responses, and software implementation projects; what a functional matrix is, how one is used in a software implementation project, and how it was used in this project; the implementation of highly configurable software versus software that is not highly configurable and issues created by trying to implement the latter; how staffing and other customer decisions are based on representations made by the vendor; how delays and risks are addressed in fixed fee contracts for implementation contracts; and expected functionality in the U.S. market for billing software, among other things. See generally Ex. 1 to Mot., Dkt. 122-1. The disclosure complies with the “brief summary” requirement and therefore it satisfies the requirements of Rule 26(a)(2)(C). Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 9 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 10 of 16 10 B. Open Will Not Be Prejudiced Should the Court Find that the City Should Amend its Disclosure. As discussed above, this Court should find that the City’s disclosure of Dr. Frey meets the requirements of Rule 26(a)(2)(C). However, should the Court find it was not, the Court should also find that Open was not prejudiced and that any insufficiency is harmless, and allow the City to supplement the disclosure. The purpose of the disclosure requirement is to prevent prejudice by eliminating surprise to the opposing party and by providing that party with enough information to prepare for depositions, pre-trial motions, and trial. Carbaugh v. Home Depot U.S.A., Inc., 2014 U.S. Dist. LEXIS 96578, at *6 (D. Colo. July 16, 2014). Courts frequently allow parties to supplement their disclosures, except where it would prejudice the non-moving party on the eve of trial. In fact, even the cases cited by Open provided the opportunity for a party to supplement the disclosure, except where the motion was decided a mere two days before the trial (and would thus lead to danger of unfair surprise).1 See, e.g., Seeley v. Home Depot U.S.A., Inc., 2018 U.S. Dist. LEXIS 152421, at *18-20 (D. Colo. Sep. 6, 2018) (finding factors weighed in favor of amendment and allowing plaintiff seven days to do so); Energy Drilling, LLC v. Pac. Energy & Mining Co., 2016 U.S. Dist. LEXIS 140968, at *18-19 (D. Wyo. Apr. 1, 2016); c.f. Estate of Barton Grubbs v. Weld Cty. Sheriff's Office, 2018 U.S. Dist. LEXIS 237488, at *9 (D. Colo. July 20, 2018) (not granting opportunity to amend, as motion was decided just two days before trial, meaning moving party would be prejudiced by a supplement on the eve of trial). 1 They also cite to a case in which a disclosure was found to be sufficient, with the exception of one paragraph that broadly referred to a myriad of prior and future depositions and interview reports. See United States v. Durango & Silverton Narrow Gauge R.R. Co., 2020 U.S. Dist. LEXIS 181926, at *7-8 (D. Colo. Oct. 1, 2020). Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 10 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 11 of 16 11 In determining whether an insufficient disclosure under Rule 26(a) is justified or harmless, a court should look at “1) the prejudice or surprise to the party against whom the testimony is offered; 2) the ability of the party to cure the prejudice; 3) the extent to which introducing such testimony would disrupt the trial; and 4) the moving party's bad faith or willfulness.” Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999); see also Munoz v. FCA US LLC, 2019 U.S. Dist. LEXIS 115580, at *10-12 (D.N.M. July 10, 2019) (evaluating above factors and finding plaintiff’s inadequate expert disclosure harmless and allowing amendment where defendants were not surprised by proposed testimony, disclosure was timely, trial was not yet scheduled, and there was no evidence of gamesmanship or bad faith on the part of the disclosing party). Open’s Motion is based only on the first factor, broadly asserting that it will be prejudiced. See generally Mot., Dkt. 122 (lacking any argument about the inability to cure any prejudice, lacking any argument that introduction of the testimony by Dr. Frey would disrupt the trial, and lacking any argument about bad faith or willfulness). Accordingly, the City addresses the first factor only. Here, there is no danger of prejudice or surprise. As detailed above, Open is intimately familiar with Dr. Frey, her experience, and her opinions. The City timely disclosed Dr. Frey, and Open received the Frey disclosure prior to her deposition. Moreover, the disclosures built on and concerned what Open has been relying on since day 1 of this case. In fact, Open’s Motion fails to provide any explanation of which item(s) listed in the City’s disclosure of Dr. Frey are “unclear” or how any such items are “unclear,” much less how precisely Open is prejudiced by any of those items disclosed. This is because there can be no such argument. In fact, the six main areas of testimony outlined in the disclosure should come as no surprise to Open, as Open has full Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 11 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 12 of 16 12 knowledge of—and also relies on—Dr. Frey’s expertise, observations, determinations, recommendations, and opinions relating to the Project and her analysis of the Project, as detailed above. For example, Open repeatedly relied on Dr. Frey’s experience and expertise in software implementation projects and as a project manager and further relied on everything that went into Dr. Frey’s “extensive due diligence” and analysis of the Project itself to make determinations, offer opinions and recommendations concerning the project issues, staffing issues, delays, risks to the project, and costs—including who was responsible for the same—throughout its counterclaims and case. The City also previously disclosed her on the issues in the project, including “Defendants’ representations and failure to provide promised functionalities, outstanding issues, troubleshooting, and City staffing.” And Open’s counsel did ask Dr. Frey about many of the items in the disclosure during her deposition. See . Indeed, having satisfied itself, Open chose to end Dr. Frey’s deposition early, foregoing the seven hours, and subsequently chose not to seek any separate deposition of Dr. Frey during the expert discovery phase, despite making such reservations. See id. at 194:5-11, 19-21. Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 12 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 13 of 16 13 Notwithstanding the above, Open’s Motion focuses on cases where there was actual unfair surprise or the disclosure otherwise hampered the ability of the opposing party to prepare for cross- examination at trial. Neither exists here. For example, in Nosewiz v. Janosko, the court found that a disclosure was insufficient because it referred to opinions and facts contained in a physician’s medical records, but did not identify which specific records were being referred to, thus prejudicing plaintiff as plaintiff did not know what facts from the records were at issue. Nosewicz v. Janosko, 2019 U.S. Dist. LEXIS 153242, at *13-14, 17-18 (D. Colo. Aug. 19, 2019). By contrast, the City’s disclosure points to facts and opinions of which Open is well aware. Open cannot claim unfair surprise or that it would be unable to cross-examine Dr. Frey at trial just because the City seeks to rely on Dr. Frey’s “extensive due diligence” and analysis of the Project issues (as Open noted) that are not favorable to Open’s case and counterclaims. Open is intimately familiar with the facts and opinions underlying the disclosure. Dr. Frey and her opinions have played a key role throughout this litigation and have been a particular focus of Open throughout the case, with Open repeatedly relying on her analysis of the issues in the Project. Moreover, despite the City’s prompt response to Open’s email raising concerns about the disclosure, in which the City in good faith asserted its reasoning for why the disclosure was sufficient (Ex. D), Open waited until after the close of fact and expert discovery (without ever seeking a separate “expert” deposition of Dr. Frey) to file this Motion, evidencing the lack of urgency or prejudice. The pre-trial conference in this action is still over three months away and no trial dates have been set. Accordingly, should the Court find that the City’s disclosure of Dr. Frey as its hybrid/non-retained witness is insufficient under Rule 26(a)(2)(C), it should also find that “any prejudice suffered by [Open] is not irreparable” and allow the City to supplement its Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 13 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 14 of 16 14 disclosure. See Munoz, 2019 U.S. Dist. LEXIS 115580 at *10-12; see also Nicastle v. Adams Cty. Sheriff's Office, 2011 U.S. Dist. LEXIS 158850, at *4-5 (D. Colo. May 3, 2011) (finding that possible prejudice to plaintiff was not irreparable where plaintiff was “extremely familiar” with information referenced in disclosure and ordering defendant to amend disclosure). CONCLUSION To ensure that Open cannot rely on some of Dr. Frey’s opinions while excluding others, the City respectfully requests that the Court deny Open’s Motion and find that the City properly disclosed Michelle Frey as a hybrid/non-retained expert witness. In the alternative, the City respectfully requests that the Court permit the City to supplement the disclosure. Respectfully submitted this 9th day of January, 2023. 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 155 Filed 01/09/23 USDC Colorado Page 14 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 15 of 16 15 CERTIFICATE OF SERVICE I hereby certify that on January 9, 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/ Wynter Wells DORSEY & WHITNEY LLP Case 1:21-cv-02063-CNS-MEH Document 155 Filed 01/09/23 USDC Colorado Page 15 of 15Case 1:21-cv-02063-CNS-MEH Document 182-1 Filed 01/23/23 USDC Colorado Page 16 of 16