HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 195 - Special Masters Recommendation Re Mot Compel
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.
________________________________________________________________________
SPECIAL MASTER’S RECOMMENDATION RE:
MOTION TO COMPEL (DOCUMENT #43)
________________________________________________________________________
I have been appointed to review various documents consistent with Magistrate
Judge Michael E. Hegarty’s Order on Motion to Compel with respect to TMG
documents. This Order defines the scope of review.
Facts:
Briefly, this is a contractual dispute between the City of Fort Collins (Plaintiff)
and Open International and Open Investments (Open). The contract was for the purpose
of implementing a billing system for existing utilities in Fort Collins and also new
broadband services. This action was initiated on July 2, 2021 after the contract dispute
was unable to be resolved.
The controversy revolves around documents produced as a result of the Plaintiff
hiring a third-party consultant, TMG Consulting (TMG) to assess the status of the
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project. Open has requested the Plaintiff produce “all documents concerning TMG
Consulting’s role with the Project, including the files, memoranda, reports, emails, and
other documents of Aaron McClure and Greg Galluzzi related to the Project, as well as
other documents concerning TMG Consulting’s assessment of and participation in the
Project.”
Work Product Analysis
After a thorough analysis, the Magistrate Judge found that TMG was engaged in
January 2021 in anticipation of litigation with Open. He based this decision on three
factors: a. the January 2021 Statement of Work for TMG’s assessment of the project: b. a
letter from Plaintiff to TMG dated March 15, 2021, in which the City notified TMG that
it considered the Project deliverables identified in the Statement of Work, to be
confidential information, and instructing TMG that because “there is a potential for future
litigation between the City and Open concerning this work, the Project Deliverables
should be treated as Confidential Information based on the City’s attorney work-product
privilege:” c. and a declaration of a City attorney that the Plaintiff retained TMG in
anticipation of litigation.
Based upon these findings, the Magistrate Judge found that while the documents
listed in the privilege log are appropriately covered by the work-product doctrine, not
every document related to TMG’s work or every email in which a TMG official was
involved, falls within the work-product protection.
For example, Open asserts that the City has waived the protections of the work-
product doctrine expressly because TMG received a copy of the final report. However,
the City does not claim a privilege over the actual report that Open received from TMG,
but it does seek protection for some of the underlying documents. The Magistrate Judge
held that insofar as Open seeks notes, drafts, communications, and other papers related to
TMG’s assessment and report to the parties in early 2021 that contain mental
impressions, conclusions, or opinions of TMG officials, the submission of the final report
to Open does not operate to waive the work-product privilege with respect to those
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documents. The submission of the final report, however, would constitute a waiver with
respect to fact work product such as notes, drafts, or other papers related to TMG’s
independent assessment in early 2021, but only insofar as these documents contain the
fact work product covering the same subject matter as the facts contained in the final
report or any other documents voluntarily submitted to Open.
In summary, the Special Master is directed to determine whether the documents
listed as work product contain mental impressions, conclusions, or opinions of TMG
officials. If so, then the documents are protected by the work-product privilege. If the
documents contain fact work product which covers the same subject matter as the facts
contained in the final report or any other document voluntarily submitted to Open, then
the work-product privilege would not apply.
Attorney-Client Privilege
In addition, the Motion to Compel seeks to compel documents which the City
asserts are protected by the attorney-client privilege. Open asserts that the attorney-client
privilege cannot protect the subject documents from disclosure because neither TMG nor
its consultants were attorneys, and they were not clients of the City’s litigation counsel or
of the City’s in-house counsel. On the other hand, the City asserts that TMG was the
functional equivalent of a City employee and for this reason, communications between
the City and TMG representatives are protected under the attorney-client privilege.
The Magistrate Judge found that the City had not made a detailed factual showing
that the subject communications were made for the purpose of seeking or providing legal
assistance or that the subject matter of the communications were within the scope of the
duties provided by TMG to the City. Specifically of concern were the lack of specificity
as to whether TMG worked with the City’s counsel for the purpose of rendering legal
assistance; whether the senders or recipients of the withheld communications are
attorneys, or were communications between non- attorney employees for the purpose of
transmitting information to counsel for advice or reflecting of the requests and directions
of counsel: whether the recipients of the communication needed to know the contents of
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the communication and/or were the communications to facilitate the rendering, gaining or
communicating legal advice or direction.
Present Status
According to the Joint Status Report, Document 115-3, filed 11/28/22, of the
original 699 documents, the City is still asserting its privilege over 250 documents. The
privileges asserted fall into three categories:
a. documents withheld as work product.1;
b. emails withheld as work product because they purport to be “facilitating the rendition
of legal advice” but are not sent to or from an attorney and do not purport to seek or
contain attorney advice, mental impressions, legal theories, or other privileged
contents. Documents 167, 313, 485, and 556 fall into this category.
c. emails withheld pursuant to the attorney-client privilege because the emails are
“forwarding and commenting upon legal advice, but were circulated among non-
attorneys”. Document 144, 181, 596 and 650 fall into this category.
1 a. Roughly 200 emails withheld only as work product (except as otherwise noted in parentheses)
because they “reflect[] information gathered or prepared at the direction of counsel,” but that are not sent
to or from an attorney, do not reference a particular attorney in the privilege description, and do not
purport to reflect mental impressions or legal strategies or opinions:
i. PRIV000006, -007, -008, -009, -010, -011, -013, -015, -017, -018, 019, -020, -021, -025, -026, -027, -
028, -029, -054, -079, -097, -098 (deliberative process), -103, -105, -108, -109, -114, -118, -121, -124, -
132, -137 (also attorney-client privilege), -147, -152, -154, -156, -165, -168, -172, -178, -180, -182, -183,
-184, -185, -201, -202, -205, -206, - 207, -210, -219, -223, -224, -228, -230, -231, -232, -235, -240, -241,
- 244, -245, -246, -247, -248, -257, -258, -261, -262, -264, -270, -272, - 273, -275, -278, -282, -284, -285,
-294, -296, -300, -305, -306, -307, - 310, -311, -315, -317, -318, -320, -326, -328, -332, -333, -335, -337,
- 341, -347, -348, -419, -421, -425, -431, -432, -433, -437, -438, -439, - 443 (also deliberative process), -
444, -445, -446, -452, -454, -458, - 459, -461, -464, -467, -473, -476, -480, -484, -487, -488, -497, -502, -
511, -512, -513, -515, -519, -523, -526, -529, -530, -532, -533, -535, - 537, -538, -541, -542, -543, -545, -
547, -549, -552, -560, -562, -568, - 572, 601, 638, 670, 696, -573, -575, -578, -579, -581, -582, -585, -
586, -590, -591, -594, - -603, -611, -613, -618, -621, -622, -623, -632, -634, -635, -637, - -644, -646, -
648, -652, -653, -654, -655, -660, -661, -662, -667, - -671, -673, -676, -677, -678, -679, -685, -686, -690,
-693, -695, -697, -698.
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REVIEW OF DOCUMENTS
Work Product Privilege. City Status Report Exhibit 3, TMG-Document Log
As a preliminary matter, these contested documents, as delineated in Footnote 1,
are all documents circulated among non-attorneys but over which the City asserts work-
product protection. The privilege log sets out the date and recipients for each withheld
document, so that will not be repeated here.
The City asserts the documents are opinion work product reflecting mental
impressions, theories, or opinion of the City or TMG.
The Magistrate Judge ordered that the City waived any fact work-product
privilege asserted over the notes, drafts, or other papers related to TMG’s independent
assessment in early 2021 if these documents contained only facts as opposed to mental
impressions or opinions. The City was cautioned by the Magistrate Judge to only
withhold documents that truly constitute opinion work product - containing an attorney’s
mental impressions, theories, or opinions.
CATEGORY A: WORK PRODUCT DOCUMENTS
#000006 is a 91-page document that is called a CIS Assessment Initial Report, dated
March 26, 2021. A review of the document established that it is entirely factual and or
statistical in nature and therefore not protected by work product.
#000007 is a voluminous spreadsheet, dated 3/20/21, called a CIS Assessment model. It
consists of charts and graphs, including a Customer Care and Technology Cycle of
Service, Customer Readiness, Assessment Model-Grade Scale, and others. The
document(s) are factual and statistical in nature and therefore not protected by work-
product.
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#000008 is a voluminous spreadsheet, dated April 7, 2021, called CIS Assessment
Report. It consists of charts and graphs, gathering data based on an assessment from data
collected from a large group of individuals. As such, the document is factual and
statistical in nature and therefore not protected by work-product.
#000009, dated April 7, 2021, is named CIS Assessment Report on the Open SmartFlex
Project OASIS. It analyzes assessment categories and the assessment findings. It
consists of charts and graphs, and gathers data from large group of people. As such, the
document is factual and statistical in nature and therefore not protected by work-product.
#0000010, dated March 26, 2021, is named CIT Assessment Initial Report. It is based
on cumulative information from a number of people involved in the assessment, and, as
such, gathers data and statistical analysis. It is factual and statistical in nature and
therefore not protected by work-product.
#000011, dated March 26, 2021, is named CIS Assessment Report, and seems to be the
same or a slightly expanded version of #000010. While the report contains some
recommendations, the recommendations are project centered and are not directed toward
potential litigation. Accordingly, this document is not protected by work-product.
#000013, dated 5/18/2021 and entitled CIS Assessment Model - Grade Scale, is a
voluminous document consisting of charts and graphs analyzing statistical data and
project projections. Accordingly, this document is not protected by work-product.
#000015, dated March 26, 2021, is entitled CIS Assessment Report. The document is
based on input from a large number of people, and is presented in statistical and graphic
form. Accordingly, this document is not protected by work-product.
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#000017, dated March 26, 2021, is entitled CIS Assessment Report. This voluminous
document is a compilation of information from a large group of people and the
information is presented in graphic and statistical form. Accordingly, this document is
not protected by work-product.
#000018, dated March 26, 2021, is entitled CIS Assessment Report. this voluminous
document is a compilation information from a large group of people, which information
is presented in graphic and statistical format. It does have recommendations, but the
recommendations are project related and not directed toward potential litigation.
Accordingly, this document is not protected by work-product.
#000019 This email chain references a review of the CFC requirements, and is summary
in nature. Accordingly, it is not protected by work-product.
#000020, dated 3/5/2021, is a CIS Assessment Model - Grade Scale. It consists of graphs
and charts based on a statistical analysis of data provided by numerous people. This
document is not protected by work-product.
#000021, dated April 7, 2021, is entitled CIS Assessment Report. It is based upon the
cumulative factual information of numerous people, which has been consolidated into
charts and graphs. Accordingly, it is not protected by work-product.
#000025, dated March 15, 2021, is entitled Interview Highlights. It is what its name
suggests, a compilation of responses from various people presented in a statistical and
graphic manner. This document is not protected by work-product.
#000026, dated March 26, 2021, is entitled CIS Assessment Report. It is a statistical and
graphic compilation based upon the factual input of numerous individuals. It is not
protected by work-product.
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#000027, dated March 26, 2021, is entitled CIS Assessment Report. It is a statistical and
graphic compilation based upon the factual input of numerous individuals. It is not
protected by work-product.
#000028, dated April 7, 2021, is entitled CIS Assessment Report. It is a statistical and
graphic compilation of data based upon facts provided by numerous people. It is not
protected by work-product.
#000029, dated March 26, 2021, is entitled CIS Assessment Report. It is a statistical and
graphic compilation of data based upon facts and information provided by numerous
people. It is not protected by work-product.
#000054 This email transmits a top ten list which was compiled by the Utility Business
people. It and its attachment are factual in basis and are not protected by work-product.
#000079 This email chain deals with technical concerns. It is not protected by work-
product.
#000097 This email chain transmits a slide deck from an earlier meeting concerning
project observations and anticipate further work needs. It and the slide deck are factual
in basis, and not protected by work-product.
#0000103 This email transmits projects observations 2-22-21. Both it and the slide
deck are factual. These documents are not protected by work- product.
#0000105 This email transmits a document called CIS Assessment Weekly Status
Report. It is made up of charts and pictures derived from factual information. It is not
protected by work-product.
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#0000108 This email chain provides Rosintoski’s opinion as to what “if she had a
magic wand” she would do. It is not related to litigation and therefore not protected by
work-product.
#0000109 This email chain is a transmittal email concerning a meeting. Its attachment
is #0000110 and is labeled OASIS Leadership Weekly Briefing. While the attachment
reflects the opinion of some attendees, these opinions and the transmittal email are not
directed to potential litigation, rather the Project itself. These documents are not
protected.
#0000114 This email chain asks for factual information, i.e. what would the recipient
do if he/she had a “magic wand.” It is not protected by work-product.
#0000118 Email chain #0000118 transmits #0000119, which is entitled CIS
Observations and dated February 22, 2021. The documents incorporate information from
other parties including the answers to “magic wand” questions. The documents are not
protected by work-product.
#0000121 This long email chain concerned product functionality Not protected by
work-product.
#0000124 This email asked the “magic wand” question. Not protected by work-
product.
#0000132 This email chain presents the “What would you do if you had a magic
wand” question again. Not protected by work-product.
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#0000137 This email chain deals with OPEN OSF notification complexity. It is not
work-product.
#0000147 This is an extended email chain which discusses the preparation of the
TMG SOW for CIS Assessment. This document is not protected by the work-product
privilege.
#0000152 This email chains transmits project observations as of 2-22-21. Not
protected by work-product.
#00000154 This email chain deal with the CIS PM RFP proposals. Not protected by
work-product.
#00000156 This email chain seeks comments about potential updates to the status of
OASIS. Not protected by work-product.
#00000165 This email chain deals with personnel issues. Not subject to work product
protection.
#0000167 This email chain contains a general factual discussion about personnel
problems hindering management of project. Not subject to work-product protection.
#0000168 This email chain contains a brief discussion of an assessment ( no name
given.) Not subject to work-product.
#0000172 This email chain contains a general discussion about which personnel
should be included in a meeting. Not subject to work-product protection.
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#0000178 This email chain raises questions and seeks factual responses about the
project numbers. Not subject to work-product.
#00000180 This email chain concerns an attempt to set an upcoming meeting. Not
subject to Work-Product.
#00000182 This email chain concerns a general discussion about personnel matters.
Not subject to Work-Product.
#00000183 This email chain asks for facts to demonstrate concerns or barriers. Not
protected by work-product.
#00000184 This email chain expresses concern about an Acceptance Criteria Matrix
for each item of the functional matrix. Not covered by work-product.
#00000185 This email chain concerns general billing questions and meeting planning.
Not covered by work-product.
#00000201 This email chain concerns the development of alternatives which may be
related to the City’s upcoming negotiation strategy of MPSA. This document seeks
factual information to help develop alternatives. Not covered by work-product.
#0000202 This email chain seeks factual information with respect to the evaluation of
Open’s software platform. Not covered by work-product.
#0000205 This email chain is a general discussion about software. Not covered by
work-product.
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#00000206 This email chain is a general question and answer discussion seeking
factual information. Not covered by work-product.
#0000207 This email chain seeks specific factual information about the status of OSF
and sets a meeting time to discuss. Not covered by work-product.
#00000210 This is a transmittal email, sending a draft report about billing and finance
for discussion. It is not protected by work-product.
#0000219 This is a transmittal email sending a TouchPoint CIS Model Analysis.
This is factual in nature and not covered by work-product about
#0000223 This is an email chain seeking factual information about payments. Not
protected by work-product.
#0000224 This is an email chain seeking factual information about the Acceptance
Criteria Matrix. Not covered by work-product.
#00000228 This is an email chain containing a factual summary of OASIS’s change
and configuration management issues. Not covered by work-product.
#0000230 This is an email chain seeking factual information about
IT problems. Not covered by work-product.
#0000231 This is an email chain seeking factual information about IT issues. Not
covered by work-product.
#0000232 This is an email chain seeking factual information about
the acceptance criteria for CFC functional Matrix. Not covered by work-product.
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#0000-235 This is an email chain sharing factual information about the CIS
Assessment IR. Not covered by work-product.
#0000240 This is an email chain with many recipients setting an agenda for an OASIS
project update meeting and giving a a factual overview of the meeting presentation. Not
covered by work-product.
#0000241 This is an email attempting to schedule a meeting. Not covered by work-
product.
#0000244 This email chain seeking factual information about the functional matrix
and attempting to schedule a status meeting. Not covered by work-product.
#0000245 This email chain is attempting to gather facts about the progress of the
project with respect to cost and subsequent testing. Not covered by work-product.
#0000246 This email chain discusses interviews for the OASIS reports lead position.
Not covered by work-product.
#0000247 This email chain asks about IT costs to support OSF. Not covered by
work-product.
#0000248 This email chain requests facts about concerns with OSF to support generic
statements about the project. Not covered by work product.
#0000257 This email chain transmits the top ten list from the Utility Business people
Not covered by work-product.
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#0000258 This email chain seeks factual information about IT costs to support OCF
including current BB state and future end state with Utilities. Not covered by work-
product.
#0000261 This email chain is a transmittal note sharing preliminary findings entitled
Project Observation 2-22-21 Not covered by work-product.
#0000262 This email chain is a transmittal note sharing information from the Utility
Business people. Not covered by work-product.
#0000264 This email chain asks that a meeting be set-up to discuss OSF BB Product.
Not covered by work-product.
#0000270 This email chain called “Please help us right the ship” concerns various
peoples’ opinions about the weaknesses of the project gathered by interviews with
numerous people. It does not reach any conclusions. Not covered by work-product.
#0000272 This email chain regards management concerns with some of the project
workers and requests to set ups meeting. Not covered by work-product.
#0000273 This email chain is a transmittal email concerning a summary of an analysis
of OASIS. It reflects factual findings and research about how to improve the program.
Not covered by work-product.
#0000275 This email chain is a transmittal email concerning the proposed TMG CIS
Assessment. Not covered by work-product.
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#0000278 This email chain is a transmittal email communicating information about a
personal/business meeting with Jeff Valadez of Open and setting up times to gather more
data. Not covered by work-product.
#0000278 This email chain transmits factual information about Jeff Valadez of Open
regarding other accounts. Not covered by work-product.
#0000282 This email chain is a transmittal email concerning TMG Recommendation
for Review and Final Report. Not covered by work-product.
#0000284 This email chain concerns the status of the project and discusses an
upcoming meeting. Not covered by work-product.
#0000294 This email transmits a report called CIS Assessment Weekly Status Report.
Not covered by work-product.
#0000295 This is a document from the City of Fort Collins titled CIS Assessment
Weekly Status Report, dated March 12, 2021. It is a graphic and statistical report of facts
gather. Not covered by work-product.
#000296 This is an email correction document. Not covered by work-product.
#0000300 This email chain announces a comment kickoff day to assess TMG CIS.
Not covered by work-product.
#0000305 This email chain deals with endorsements and references about the project.
Not covered by work-product.
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#0000306 This email chain sets up a meeting to gather facts about OSF product
deficiencies and workarounds. Not covered by work-product.
#0000307 This email chain deals with payment by the City. Not covered by work-
product.
#0000310 This email asks for a factual assessment of the Project Management for the
Oasis program, including past personnel. Not covered by work-product.
#0000311 This email concerns contract acceptance language and payment. Not
covered by work-product.
#0000313 This email chain attempts to set up a meeting about billing problems and
other issues. Not covered by work-product.
#0000315 This email chain asks for an opinion i.e. what would you do it you had a
magic wand, about the OASIS program. Although this email deals with an opinion, it is
part of a series of “magic wand” inquires which are factual in nature. Not covered by
work-product.
#0000317 This email provides factual information about technical training. Not
covered by work-product.
#0000318 This email chain revises a signature line. Not covered by work-product.
#0000320 This email chain discusses payment to Open. Not covered by work-
product.
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#0000332 This email chain transmits information on TMG research and capabilities.
Not covered by work-product.
#0000333 This email chain deals with payments made by the City. Not covered by
work-product.
#0000335 This email chain provides facts about the Broadband development. Not
covered by work-product.
#0000326 This email chain asks for facts about the contract acceptance language. Not
covered by work-product.
#0000337 This email chain asks for corrections to Protect Observations. Not covered
by work-product.
#0000341 This email chain transmits a CIS Assessment common site with factual
data. Not protected by work-product.
#0000347 This email chain transmits information about TMG Research with respect
to CIS projects. Not protected by work-product.
#0000348 This email chain asks for factual information from the City as it relates to
the RFP. Not protected by work-product.
#0000419 This email chain corrects an earlier transmittal. Not protected by work-
product.
#0000421 This email chain asks for factual reactions to review technical resolution
topics. Not protected by work-product.
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#0000425 This email chain seeks information about payments and amounts. Not
protected by work-product.
#0000431 This email chain asks the opinion of an employee, i.e. if you had a magic
wand, with respect to OASIS. Not protected by work-product.
#0000432 This email chain discusses how to deal with problem with the functional
matrix and is factual in nature. Not protected by work-product.
#0000433 This email chain shares thoughts and suggestions to a large number of
people, and is factually based. Not protected by work-product.
#0000437 This email chain reschedules a meeting to discuss the OSF UT Product. No
substantive information is communicated. Not protected.
#0000438 This email seeks facts to determine whose job it is to manage Milestone?
No substantive information is communicated. Not protected.
#0000439 This email chain discusses a missing slide for a presentation. Not
protected.
#0000444 This email chain asks for factual information about IT timeframe. Not
protected.
#0000445 This email chain deals with payment. Not protected.
#0000446 This email chain deals with scheduling concerns and expectations for
meetings. Not protected.
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#0000452 This email chain indicates that more time is needed to prepare an executive
summary. Not protected.
#0000454 This email chain discusses a proposed agenda for a meeting. Not protected.
#0000458 This email chain attempts to set up a meeting to discuss the project with
functional leads. Not protected.
#0000459 This email discusses factually the Project Health Assessment for OASIS
and asks for feedback. Not protected.
#0000461 This email chain asks for a factual and administrative review of the Lean
New Product Process. Not protected.
#0000464 This email chain shares thoughts and suggestions about the Technical
Resolution problems. Not protected.
#0000467 This email chain asks an employee the “what would you do if had a magic
wand” question and is factually based. Not protected.
#0000473 This email chain delineates what work is needed in the future with respect
to the Functional Matrix. Not protected.
#0000476 This email chain contains no information. Not protected.
#0000480 This long email chain discusses the factual problem with the functional
matrix and asks for factual input. Not protected.
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#0000484 This email chain involves factual information from Jeff Valadez regarding
other accounts. Not protected.
#0000485 This email chain attempts to set up a meeting with the functional leads
about the Project. Not protected.
#0000487 This email chain discusses the factual basis for payments made to Open.
Not protected.
#0000488 This is a one sentence email changing one slide for another. Not protected.
#0000497 This email chain deals factually with open revenue issues. Not protected.
#0000502 This email lists items, developed as a result of factual interviews with
various people, to be discussed at a future meeting. Not protected.
#0000511 This email chain forwards a link to a site that deals with OASIS Roles and
Responsibilities. Not protected.
#0000512 This email chain transmits a slide deck used at a meeting and projects
future tasks for the Oasis assessment. Not protected.
#0000513 This email chain deals with payment. Not protected.
#0000515 This email transmits responses to Open’s comments with respect to the
Utilities Narrative. Not protected.
#0000519 This email chain transmits an annual software maintenance cost for OSF
spreadsheet. Not protected.
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#0000523 This email chain transmits a backlog and functional matrix cross reference
result. Not protected.
#0000526 This email chain contains a “what would you do if you had a magic wand”
question and seeks a factual response. Not protected.
#0000529 This email chain transmits another email chain about Broadband rescue and
recovery planning. Not protected.
#0000530 This email chain transmits a spreadsheet on master billing issues 2021. Not
protected.
#0000532 This email chain transmits the Fort Collins TMG CIS Assessment IR file.
Not protected.
#0000533 This long email chain requests factual information about the responses
received for a CIS PM. Not protected.
#0000535 This email deals with an agenda for an upcoming meeting about CIS and
transmits a slide deck thereto. Not protected.
#0000537 This email chain deals with 2016 history. Not protected.
#0000538 This email transmits a column entitled CF IT response. Not protected.
#0000541 This email chain requests documents related to responses for a CIS PM.
Not protected.
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#0000542 This email chain transmits an unidentified memo. Not protected.
#0000543 This email chain discusses product deficiencies and workarounds and seeks
factual responses thereto. Not protected.
#0000545 This email chain sent to many people asks for a factual analysis of OSF
shortcomings. Not protected.
#0000547 This email chain asks for information with respect to the City’s responses
for a CIT MP. Not protected.
#0000549 This email chain transmits a summary of an analysis concerning OASI’s
change and configuration management. It is factually based. Not protected.
#0000552 This email chain asks for information with respect to the City’s responses
for a CIT MP. It is an extended version of #0000547. Not protected.
#0000556 This email chain attempts to set up a meeting. Not protected.
#0000560 This email chain transmits factual information from the Utility Business
people. Not protected.
#0000562 This email chain asks for factual information about costs. Not protected.
#00005568 This email involves the functional Matrix review and the addition of a
column called “pending to test.” It seeks factual information.
Not protected.
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#0000572 This email chain forwards information about the IR responses with respect
to timeframes. It is factual. Not protected.
#0000573 This long email chain involves a discussion had with Jeff Valadez about a
different project and the telecommunication and utility industry. Not protected.
#0000575 This email chain attempts to set up a meeting with the functional leads.
Not protected.
#0000578 This email asks for factual information about cost. Not protected.
#0000579 This email chain provides factual responses to the Utilities Narrative. Not
protected.
#0000581 This email chain provides a discussion of the pending default notice
letter by the City. It discusses potential litigation strategy. It is protected by the
work-product privilege.
#0000582 This email chain discusses the conversation with Jeff Valadez again. It is
not protected by work product.
#0000585 This email chain transmits the TMG Consultant Effort team folder and
video recordings. It seeks factual information. Not protected by work product.
#0000586 This long email chain deals with the discussion with Jeff Valadez of Open.
It conveys and seeks factual information. Not protected.
#0000590 This email chain deals with open revenue and includes a factual
spreadsheet. Not protected.
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#0000591 This long email exchange deals with the City’s responses to an evaluation
of the CIS PM. It is factual. Not protected.
#0000594 This email chain transmits and discusses the private channel in the UT
Customer Connections OASIS project team called TMG Consultant Effort. It is factual.
Not protected.
#0000601 This long email chain involves the Jeff Valadez conversation. It is factual
and not protected.
#0000603 This email chain discusses interviews held about the OSF product
deficiencies and workarounds. It is factually based. Not protected.
#0000611 This email chain attempts to set up a meeting to discuss the perceived
problems with OCS. It seeks factual information. Not protected.
#0000613 This long email exchange discusses the Jeff Valadez conversation and
seeks factual information. Not protected.
#0000618 This email chain discusses the review of the entire functional matrix and
seeks factual information and the product concerns. Not protected.
#0000621 This email chain attempts to set up a meeting about costs. Not protected.
#0000622 This email chain asks for information about the technical resolution topics
and seeks information thereto. Not protected.
#0000623 This is a transmittal email for project observation 2-22-21. Not protected.
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#0000632 This email chain sets forth suggested personnel for Open Staff. Not
protected.
#0000634 This email chain talks about the content of a proposed meeting. Not
protected.
#0000635 This email sets forth questions seeking input about the RFP. Not protected.
#0000637 This email chain suggests corrections for the slide deck to be used at a
meeting. Not protected.
#0000638 This email chain transmits information concerning Open Revenue and
solicits comments. Not protected.
#0000644 This email chain discusses the conversation with Jeff Valadez of Open and
solicits factual responses. Not protected.
#0000646 This email chain makes corrections to a slide used for project observations.
Not protected.
#0000648 This email chain asks that slides used at a presentation be shared. Not work
product.
#0000652 This email presents a factual vision for broadband management. Not work
product.
#0000653 This email describes concerns with the work done by TMG and
suggests that “legal” may be involved. This document is protected by work product.
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#0000654 This email communicates factual information to a group of people. Not
protected by work product.
#0000655 This email expresses concern with TMG to various personnel. It is a
factual discussion only. Not protected by work product.
#0000660 This email set up a meeting for a demonstration of problems. Not
protected.
#0000661 This email speaks to a plan for negotiation. Protected by work product.
#000062 This email is about an architectural brainstorm and seeks facts. Not
protected by work product.
#0000667 This email deals with out of scope items in change order. Not protected by
work-product.
#0000670 This email seems to be responsive to #000066. It is protected by work
product.
#00000671 This email chain transmits information for a review of technical topics.
Not protected.
#0000673 This email presents a factual graph to be used for a briefing. Not protected.
#0000676 This long email chain transmits and discusses TMG consultant errors
recordings. Not protected.
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#0000677 This email transmits in graph, factual form technical resolution topics. Not
protected.
#0000678 This email chain discusses the private channel in the UT Customer
Connection OASIS project team site. Not protected.
#0000679 This email transmits the OPEN Master Professional Services Agreement
Galuzzi Highlights 2-28-21 document. Not protected.
#0000685 This email chain transmits the TMG Tech Resolution recording sessions.
Not protected.
#0000686 This email chain transmits the link to a folder in MS Teams to watch the
videos. Not protected.
#0000690 This email chain discusses problems with accessing the site. Not protected.
#0000693 This email chain communicated the topics for the technical resolution
meeting upcoming. Not protected.
#0000695 This email chain discusses topics for the upcoming technical resolution
meeting. Not protected.
#0000696 This email chain discusses the private channel mentioned above. Not
protected.
#0000697 This email chain discusses the private channel. Not protected.
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#0000698 This email chain forwards a new box 1 for the technical resolution meeting.
Not protected.
CATEGORY B: REVIEW OF DOCUMENTS ALLEGED TO BE FACILITATING
THE RENDITION OF LEGAL ADVICE.
#0000167 This email chain contains a general factual discussion about personnel
problems hindering the management of project. It does not seek or facilitate the rendition
of legal advice or contain attorney advice, mental impressions, legal theories or other
privileged contents. and seems to be purely factual in nature. Not protected by work-
product privilege.
#0000313 This email chain attempts to set up a meeting about Broadband billing
problems and other issues. The emails chain seeks factual information about the nature of
the billing issues. The email chain does not seek or facilitate the rendition of legal
advice. Not protected.
#0000485 This email chain attempts to set up a meeting with the functional leads
about the Project. Included within the memo is a chart detailing some of the comments
about the project. The emails transmit factual information about questions about the
project. The email chain does not seek or facilitate the rendition of legal advice. Not
protected.
#0000556 This email chain attempts to set up a meeting with the functional leads to
develop specifics regarding various interview statement. It incorporates the same chart as
#0000485. For the same reasons noted in #0000485 it is not protected.
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CATEGORY C Emails withheld pursuant to the attorney-client privilege because
the emails are “forwarding and commenting upon legal advice” but were circulated
among non-attorneys.”
#0000144 This email discusses the dispute and references attorneys, including
outside counsel. This document is protected by attorney-client privilege
#0000181 This email primarily discusses problems with data cleanup after addresses
were loaded into OSF for Broadband. It also discusses the Master Professional Services
Agreement. No reference is made to the recipients of the email forwarding or
commenting upon legal advice. This document is not protected.
#0000596 This email chain is essentially the same as #0000181 except one more
responsive comment has been added which does not change the analysis. The document
is not protected.
#0000650 This email transmits senior staff notes dated 6/17/21. It concerns,
among other things, comments about the customization of the IT system. This
document arguably forwards and commenting upon legal advice. It is protected by
attorney-client.
Dated this 21st day of February, 2021.
By the Special Master
Nancy E. Rice
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