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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 Case 1:21-cv-02063-DDD-NYW Document 35 Filed 02/28/22 USDC Colorado Page 1 of 5 -2- 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 Case 1:21-cv-02063-DDD-NYW Document 35 Filed 02/28/22 USDC Colorado Page 2 of 5 -3- 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 Case 1:21-cv-02063-DDD-NYW Document 35 Filed 02/28/22 USDC Colorado Page 3 of 5 -4- 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. Case 1:21-cv-02063-DDD-NYW Document 35 Filed 02/28/22 USDC Colorado Page 4 of 5 -5- 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 Case 1:21-cv-02063-DDD-NYW Document 35 Filed 02/28/22 USDC Colorado Page 5 of 5