HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 035 - Joint Mot Amend Scheduling Order
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 2021-cv-02063-DDD-NYW
CITY OF FORT COLLINS,
Plaintiff,
vs.
OPEN INTERNATIONAL, LLC,
OPEN INVESTMENTS, LLC.
Defendants.
JOINT MOTION TO AMEND THE SCHEDULING ORDER
Pursuant to Fed. R. Civ. P. 16(b)(4), Plaintiff City of Fort Collins (the “City”) and
Defendants Open International, LLC, and Open Investments, LLC, (together, “Open” and, with
the City, the “Parties”) seek to amend the Scheduling Order (Dkt. 21) to provide approximately
twelve additional weeks for the remaining deadlines set forth therein. This is the Parties’ first
request for an extension of any deadline. In support of this joint motion, the parties state the
following:
1. This case was commenced in federal court on July 30, 2021 by notice of removal
(Dkt. 1); Open answered and filed counterclaims on August 27 (Dkt. 13), and the pleadings
closed with the City’s reply to the counterclaims on October 8 (Dkt. 30).
2. The Parties then promptly propounded requests for production and interrogatories
in late October, and they served responses and objections in late November.
3. Both sides also have served initial document productions, and with respect to
production of emails and other large-volume ESI, the Parties have engaged in negotiations over
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search terms and other limiting parameters to pare down millions of potentially discoverable
documents to roughly a few hundred thousand documents for review.
4. Additionally, the Parties themselves met and conferred multiple times in
December, January, and February, including by face-to-face videoconference, to discuss
potential resolution of this litigation. Those discussions are ongoing and are expected to
conclude by mid-March.
5. Finally, in the last two months, several of the undersigned attorneys and their
child-caregivers were ill with COVID-19, which, along with office restrictions affecting both
Parties and their counsel, have generally delayed discovery that will be necessary before serving
opening expert reports.
6. For all these reasons, although the Parties have cooperated in good faith and with
diligence, they will not be able to meet the discovery deadlines currently set forth in the
Scheduling Order—most immediately, the March 25, 2022 deadline for opening expert reports
(Dkt. 21 at 13)—and they therefore seek an extension of the remaining pre-trial deadlines.
7. Under Fed. R. Civ. P. 16(b)(4), the Scheduling Order may be modified only on a
showing of good cause, and the determination of good cause rests in the Court’s discretion. See
Lehman Bros Holdings Inc. v. Univ. Am. Mortg. Co., LLC, 300 F.R.D. 678, 681 (D. Colo. 2014).
The Court considers several factors: “(1) whether trial is imminent; (2) whether the request to
reopen or extend discovery is opposed; (3) whether the non-moving party would be prejudiced;
(4) whether the moving party was diligent in obtaining discovery within the guidelines
established by the Court; (5) the foreseeability of the need for additional discovery in light of the
time allowed for discovery by the Court; and (6) the likelihood that the discovery will lead to
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relevant evidence.” Waller v. Lovingier, 2016 U.S. Dist. LEXIS 37710, at *9-10 (D. Colo. Mar.
22, 2016) (Wang, J.).
8. The relevant factors weigh strongly in favor of amending the Scheduling Order.
Trial is not imminent nor has a trial date been set. The Parties agree that an extension of pre-trial
deadlines is in their interest, including the interests of efficient and targeted discovery, so neither
side would be prejudiced. The Parties promptly began written discovery when the pleadings
closed and served responses without extensions to the presumptive deadlines, and they have
made progress in producing responsive documents. But they had not fully anticipated the
staggering volume of potentially discoverable documents in relation to core discovery needs, nor
did they anticipate a resurgence of COVID-19 illnesses in the late fall and winter. Nevertheless,
they addressed these unanticipated developments by quickly and cooperatively working to
narrow ESI discovery to a range proportional to the needs of the case, and the Parties themselves
took the opportunity to meet multiple times and discuss potential resolution of this case.
9. Diligence is the “very essence of the Rule 16(b) inquiry.” House v. Leone, 2018
U.S. Dist. LEXIS 58673, at *16 (D. Colo. Apr. 5, 2018) (Wang, J.). Here, the Parties have given
this matter their full attention and exercised reasonable diligence at every turn.
10. Even with concerted effort, the Parties anticipate needing at least eight additional
weeks from now to complete substantial document productions, four weeks thereafter for initial
fact depositions, and roughly four more weeks to prepare initial expert reports. The requested
extension also would allow the parties to complete final meetings planned for the week of
March 7 regarding potential resolution of this case, and to complete those discussions without
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having to incur the significant expense that would be required if the Scheduling Order is not
modified.
CONCLUSION
For the foregoing reasons, the Parties respectfully request that the Court grant their joint
motion and modify the Scheduling Order to extend the remaining pre-trial deadlines by twelve
weeks, such that:
• Opening expert reports will be due June 17, 2022;
• Rebuttal expert reports will be due July 19, 2022;
• Fact discovery will close August 19, 2022;
• Rule 702 motions will be due August 19, 2022; and
• Dispositive motions will be due September 16, 2022.
The Parties also submit herewith a proposed order granting this joint motion.
Dated: February 28, 2022
Respectfully submitted,
s/ Case Collard
Case Collard
collard.case@dorsey.com
Andrea Ahn Wechter
wechter.andrea@dorsey.com
Maral J. Shoaei
shoaei.maral@dorsey.com
Dorsey & Whitney LLP
1400 Wewatta Street, Ste. 400
Denver, Colorado 80202
Telephone: (303) 629-3400
Attorneys for Plaintiff City of Fort Collins
s/ Paul D. Swanson
Paul D. Swanson
pdswanson@hollandhart.com
Christopher Mack
cdmack@hollandhart.com
Anna van de Stouwe
acvandestouwe@hollandhart.com
Holland & Hart LLP
555 17th Street, Suite 3200
Denver, Colorado 80202
Telephone: 303-295-8000
Attorney for Plaintiff Arrow Electronics, Inc.
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CERTIFICATE OF SERVICE
I hereby certify that on the 28th day of February, 2022, 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.
I further certify that a copy of this motion was served on my client.
/s/ Case Collard /s/ Paul Swanson
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