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Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 206 - Defendant's Motion Vacate Final Pretrial Conference 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. MOTION TO VACATE AND RESET FINAL PRETRIAL CONFERENCE Defendants and Counterclaimant Open International, LLC and Open Investments, LLC (together, “Open”) respectfully move to vacate the Final Pretrial Conference (“FPC”) set for April 14, 2023, see Dkt. 93, and to reset the FPC after the parties or Judge Hegarty notifies the Court that discovery is complete. Judge Hegarty recently reopened document discovery and depositions related to a newly pleaded affirmative defense asserted by Plaintiff City of Fort Collins (the “City”) and ordered the City to produce several hundred documents after an in camera privilege review. Additionally, the parties have filed cross-motions for summary judgment, the outcomes of which will substantially affect the contours of any trial in this case. Because discovery is ongoing and the triability of the parties’ claims and defenses is unresolved, the parties cannot efficiently and properly prepare for the FPC, including by drafting a Proposed Case 1:21-cv-02063-CNS-MEH Document 206 Filed 03/27/23 USDC Colorado Page 1 of 6 -2- Final Pretrial Order. Accordingly, and for the reasons set forth below, although Open welcomes the opportunity to appear before the Court for a standard pretrial conference under Rule 16(a), Open respectfully moves to vacate the current FPC and to reset the FPC after the parties or Judge Hegarty notifies the Court that discovery is complete.1 BACKGROUND 1. When the Court set the FPC for April 14, 2023, the Scheduling Order had the deadlines for fact discovery on August 19, 2022; for expert discovery on October 28, 2022; and for summary judgment motions on November 4, 2022. See Dkt. 42. 2. Later, however, Judge Hegarty extended the deadlines for fact discovery to November 14, 2022, see Dkt. 96, for expert discovery to December 9, 2022 and for summary judgment motions to December 19, 2022, see Dkt. 107. 3. The parties filed cross-motions for summary judgment pursuant to the amended schedule, and those motions, which may resolve the vast majority of the claims and defenses in this case, are pending before the Court. See Dkts. 124, 125.2 4. Additionally, Judge Hegarty recently reopened discovery based on two developments. 1 Open conferred with the City about the relief requested in this motion by email on March 22 and 23, 2023, and during telephonic conferences on March 24 and 27. The City opposes the motion. 2 Five expert motions also are pending before the Court. See Dkts. 122, 150, 151, 152, and 153. Case 1:21-cv-02063-CNS-MEH Document 206 Filed 03/27/23 USDC Colorado Page 2 of 6 -3- 5. First, on March 20, 2023, based on a newly pleaded City defense, Judge Hegarty ordered the City to provide Open with further document discovery in April and, thereafter, to produce a City representative for a Rule 30(b)(6) deposition. 6. By way of background, the City had moved in November 2022 to amend its pleadings to add an affirmative defense, seeking to limit Open’s recoverable damages under municipal-appropriations laws. See Dkt. 101. 7. On January 26, 2023, Judge Hegarty granted the motion to amend, ordered the City to file its amended pleadings, and stated he would allow Open to conduct discovery on the new defense. See Dkt. 191 at 8-9. 8. Open served discovery requests about the newly pleaded affirmative defense on February 14, 2023, and Judge Hegarty, over the City’s challenge, ordered the City to respond to Open’s discovery requests by April 10, 2023 and granted Open leave to take a Rule 30(b)(6) deposition thereafter. See Dkts. 201, 203.3 9. Second, on March 21, 2023, after an in camera review, Judge Hegarty ordered the City to produce several hundred documents over which the City had asserted privilege, and ordered the parties thereafter to confer about remaining privilege disputes before a potential supplemental in camera review. 10. By way of background, Open and the City had cross-moved in May 2022 regarding certain discovery over which the City claimed privilege, and Judge Hegarty 3 The minute orders do not reflect Judge Hegarty’s rulings, which were issued from the bench. Case 1:21-cv-02063-CNS-MEH Document 206 Filed 03/27/23 USDC Colorado Page 3 of 6 -4- provisionally resolved the motions in two August 16, 2022 orders that ordered the parties to meet and confer further before the Court would fully resolve their privilege disputes. See Dkts. 97, 98. 11. After a follow-up discovery conference in November 2022, the Court ordered the City to produce roughly 300 documents for in camera review, see Dkt. 111, which Judge Hegarty thereafter referred to a master, former Justice Nancy Rice, see Dkt. 186. 12. On February 21, 2023, Justice Rice recommended that seven of the roughly 300 challenged documents were properly withheld by the City, see Dkts. 195, 196, and Judge Hegarty adopted the recommendations on March 21, with the exception of roughly a dozen additional documents he ruled could be withheld and a handful of others that could be produced with redactions, see Dkt. 205 at 3-4. 13. Given his ruling, Judge Hegarty ordered the City to reassess all its privilege assertions that were not part of the in camera review and to produce any documents that his ruling teaches are not privileged; he also ordered the parties to confer after that process and raise further disputes over privilege that may remain. Id. at 4-5. 14. The City has not yet produced any documents subject to Judge Hegarty’s privilege ruling but has stated that it intends to produce those over which it has no objections during the week of March 27; the City’s time to appeal Judge Hegarty’s ruling as to objected documents closes April 4, 2023, see Fed. R. Civ. P. 72(a). 15. At a March 20, 2023 conference with the parties, Judge Hegarty proposed to issue a recommendation that the FPC be vacated in light of reopened discovery but, at the City’s request, withheld a recommendation so counsel for the City could confer with their client. Case 1:21-cv-02063-CNS-MEH Document 206 Filed 03/27/23 USDC Colorado Page 4 of 6 -5- ARGUMENT 16. The Proposed Final Pretrial Order that the parties must submit to the Court ahead of the FPC requires the parties to set forth, among other things, all triable claims and defenses, all trial witnesses and exhibits, and the duration of trial and whether it may be tried to a jury. 17. Moreover, under this District’s template Final Pretrial Order, there generally is no discovery permitted after entry of the final pretrial order. 18. As set forth above, Open has proceeded diligently to abide by the Court’s scheduling orders, yet, for reasons outside its control, discovery is ongoing, and the claims and defenses that may be tried have not yet been determined by the Court. 19. As a result, holding the FPC as scheduled and requiring the parties to submit a Proposed Final Pretrial Order at this stage would be prejudicial to Open. 20. The FPC “must be held as close to the start of trial as is reasonable,” and the pretrial “order issued after a final pretrial conference” may be modified “only to prevent manifest injustice.” Fed. R. Civ. P. 16(e). 21. Because discovery is ongoing and triable theories remain to be established, the parties cannot efficiently and effectively provide the substance of a Final Pretrial Order— particularly since it may not be modified absent manifest injustice—and in light of the range of matters pending for resolution, it would waste party and judicial resources to attempt to do so. WHEREFORE, while Open welcomes the opportunity to appear before the Court for a standard pretrial conference under Rule 16(a), based on the foregoing good cause showing, Open respectfully requests that the Court vacate the FPC set for April 14, 2023 and reset the FPC after the parties or Judge Hegarty notifies the Court that discovery is complete. Case 1:21-cv-02063-CNS-MEH Document 206 Filed 03/27/23 USDC Colorado Page 5 of 6 -6- Dated: March 27, 2023. Respectfully submitted, s/ Paul D. Swanson Paul D. Swanson, pdswanson@hollandhart.com Anna C. 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 CERTIFICATE OF SERVICE I hereby certify that on the 27th day of March, 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 21173825 Case 1:21-cv-02063-CNS-MEH Document 206 Filed 03/27/23 USDC Colorado Page 6 of 6