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Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 189 - Open Resp Mot Restrict IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 2021-cv-02063-CNS-MEH CITY OF FORT COLLINS, Plaintiff and Counter-Defendant, vs. OPEN INTERNATIONAL, LLC, Defendant and Counterclaimant, and OPEN INVESTMENTS, LLC, Defendant. OPEN’S RESPONSE IN OPPOSITION TO THE CITY’S JANUARY 3, 2023 MOTIONS TO RESTRICT (Dkts. 143-147) Defendants and Counterclaimant Open International, LLC and Open Investments, LLC (together, “Open”) respectfully oppose the Plaintiff and Counter-Defendant City of Fort Collins’s (the “City”) five Motions to Restrict Access filed on January 3, 2023 (Dkts. 143, 144, 145, 146, 147, altogether, the “Motions”). The Motions seek to hide from public view hundreds of pages of materials related to dispositive motions and proffered trial testimony. As with its prior motions to restrict, however, the City has failed to articulate specific, protectable interests in the documents it seeks to seal or any particular harm that would result from honoring the presumption in favor of public access to judicial records. While Open previously has agreed to provisional sealing in keeping with the Court’s provisional ruling during discovery, now that the documents at issue pertain to dispositive motions and motions about proffered trial testimony, Case 1:21-cv-02063-CNS-MEH Document 189 Filed 01/24/23 USDC Colorado Page 1 of 6 -2- the public’s paramount interest in open access to filed court records is even stronger. The City’s Motions therefore should be denied. “Courts have long recognized a common-law right of access to judicial records.” Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007). While that right is not absolute, it entails a “strong presumption in favor of public access” that cannot be rebutted unless “countervailing interests heavily outweigh the public interests in access.” Id. See also Johnstown Feed & Seed, Inc. v. Cont’l W. Ins. Co., 2009 U.S. Dist. LEXIS 23507, at *3 (D. Colo. Mar. 26, 2009) (elaborating on judicial duty to “avoid secrecy,” which is “anathema to a free society”). To overcome the presumption, a party seeking to seal court records must “articulate a real and substantial interest that justifies depriving the public of access to the records that inform [judicial] decision-making” and demonstrate that “disclosure will work a clearly defined and serious injury.” Sacchi v. IHC Health Servs., Inc., 918 F.3d 1155, 1160 (10th Cir. 2019) (quotations and citations omitted); United States v. Walker, 761 F. App’x 822, 834 (10th Cir. 2019) (quotations and citations omitted); accord D.C.COLO.LCivR 7.2(c). The City hasn’t done this. Instead, in cursory filings, the City lists documents that the parties seek to use for the disposition of this matter but that the City wishes to seal: • public appropriations and spending records for the project in this case (Dkt. 145 (seeking to seal Dkt. 124-6 (accounting for appropriated project funds) and Dkt. 124-7 (record of project spending))); Case 1:21-cv-02063-CNS-MEH Document 189 Filed 01/24/23 USDC Colorado Page 2 of 6 -3- • City emails discussing project staffing and responsibility for delays and other problems (Dkt. 146 (seeking to seal Dkt. 123-11); (Dkt. 147 (seeking to seal Dkts. 125-46 through 125-48)); • a City memorandum cataloguing the City’s risks and shortcomings related to the project (Dkt. 147 (seeking to seal Dkt. 125-41)); • deposition transcripts for witnesses the City does not differentiate and whose testimony the City does not describe (Dkt. 144 (seeking to seal Dkts. 129-10 through 129-12); Dkt. 146 (seeking to seal Dkt. 123-7); Dkt. 147 (seeking to seal Dkts. 125-5, 125-6, 125-11,1 125-13, 125-39, 125-43, 125-49, 125-51, 125-55, 125-56, 125-57, 125-58, 125-60, and 125-63)); • proposed expert trial testimony (Dkt. 143 (seeking to seal Dkt. 128-1 (Open’s affirmative technical expert) and Dkt. 128-2 (Open’s rebuttal technical expert)); Dkt. 144 (seeking to seal Dkt. 129-1 (City’s affirmative technical expert), Dkt. 129-2 (City’s rebuttal technical expert), Dkt. 129-3 (Open’s rebuttal technical expert), and Dkt. 129-6 (Open’s rebuttal technical expert erratum)); Dkt. 146 (seeking to seal Dkt. 123-4 (City’s damages expert report) and Dkt. 123-5 (Open’s damages rebuttal expert report)); Dkt. 147 (seeking to seal Dkt. 125-70 (excerpts of City’s damages expert report))); and • expert invoices (Dkt. 146 (seeking to seal Dkt. 123-9 (City’s expert’s invoices)).2 1 The City also seeks restriction of Dkt. 125-12, see Dkt. 147 ¶ 5, but the City does not provide any description of the document or rationale for that restriction. 2 As to expert materials, the City argued for sealing in part because the parties would be re-filing the original Rule 702 motions that those materials supported. See Dkt. 143 ¶ 9; Dkt. 144 ¶ 12; (continued on next page) Case 1:21-cv-02063-CNS-MEH Document 189 Filed 01/24/23 USDC Colorado Page 3 of 6 -4- In support of its Motions, the City does not attempt to “articulate a real and substantial interest” or a “clearly defined and serious injury” related to the contents of these documents that “heavily outweigh[s]” the presumption in favor of open court records, even though that presumption surely is even stronger in the case a municipal party whose chief stakeholder is the public. Rather, the City rests its Motions predominantly on the fact that these materials were designated confidential or highly confidential under the Protective Order and otherwise offers conclusory explanations that confidential information about strategy, business, and third-party interests should remain confidential. While confidentiality designations are sufficient to afford protections as between the parties in discovery, they are not adequate bases for sealing those documents once they are filed on the public docket. MusclePharm Corp. v. Liberty Ins. Underwriters, Inc., 712 F. App’x 745, 749 (10th Cir. 2017) (“[A] party cannot overcome the presumption against sealing judicial records simply by pointing out that the records are subject to a protective order.”). At this stage of the case, amid dispositive motions, the public interest in an open docket is “presumptively paramount against” the parties’ interests in shielding filed documents. Fish v. Kobach, 320 F.R.D. 566, 577 & n.82 (D. Kans. 2017) (quoting Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011)). Having failed to articulate either a specific interest or a clear potential injury threatened by disclosure of the subject documents—documents central to the disposition Dkt. 146 ¶ 13. But at the time, those original motions had not been struck, and they still are on the docket, and the motions have now been re-filed with their exhibits that the City again seeks to restrict. Dkts. 169-171. Case 1:21-cv-02063-CNS-MEH Document 189 Filed 01/24/23 USDC Colorado Page 4 of 6 -5- of this case—the City has not overcome the presumption in favor of sealing, and the Motions should be denied. Dated: January 24, 2023. Respectfully submitted, s/ Paul D. Swanson Paul D. Swanson, pdswanson@hollandhart.com Anna van de Stouwe, acvandestouwe@hollandhart.com Alexander D. White, adwhite@hollandhart.com Holland & Hart LLP 555 17th Street, Suite 3200 Denver, Colorado 80202 Telephone: 303-295-8000 Attorneys for Defendants Open International, LLC and Open Investments, LLC Case 1:21-cv-02063-CNS-MEH Document 189 Filed 01/24/23 USDC Colorado Page 5 of 6 -6- CERTIFICATE OF SERVICE I hereby certify that on the 24th day of January, 2023, 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 Case 1:21-cv-02063-CNS-MEH Document 189 Filed 01/24/23 USDC Colorado Page 6 of 6