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HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 208 - City's Motion To Clarify [205]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. MOTION TO CLARIFY ORDER, DKT. 205 Plaintiff City of Fort Collins (the “City”), by and through its undersigned counsel, hereby submits this motion for clarification of the Court’s March 21, 2023 Order regarding the City’s privileged documents [Dkt. 205]. In support thereof, the City states as follows: 1.On February 21, 2023, the Master filed its Recommendation regarding Open’s Motion to Compel TMG-related documents. Dkt. 195. In that Recommendation, the Master made findings as to documents withheld by the City under the work-product or attorney-client privilege. 2.On March 16, 2023, the City raised certain objections to the Master’s Recommendation, identifying specific documents that it believed were protected, as well as any duplicates or near duplicates of the same documents. See Dkt. 203 at 13-15 and n. 11-19. Case 1:21-cv-02063-CNS-MEH Document 208 Filed 04/03/23 USDC Colorado Page 1 of 4 -2- 3. On March 21, 2023, the Court entered an Order finding that certain TMG-related documents raised by the City are privileged and should be withheld. See Dkt. 205 at 3-4. The Court, however, did not address the duplicates or near duplicates of documents identified by the City and whether they are also privileged.1 4. Accordingly, the City respectfully requests clarification of the Court’s Order, specifically: a. Whether documents PRIV000545 and PRIV000618 are also privileged since the Court already found PRIV000121 to be privileged; b. Whether documents PRIV000285 and PRIV000530 are also privileged since the Court already found PRIV000185 to be privileged; c. Whether documents PRIV000230, PRIV000497, PRIV000590, and PRIV000638 are also privileged since the Court found PRIV000205 to be privileged; d. Whether documents PRIV000054-55, PRIV000210-211, PRIV000262-63, PRIV000328-29, PRIV000502-503, and PRIV000560-61 are also privileged since the Court found PRIV000207 to be privileged; 1 Counsel for the City conferred with Open’s counsel regarding the relief requested herein. Open’s counsel initially agreed to the relief as long as the Court also reviewed other documents from the City’s privilege log. Counsel for the City advised that Open’s requested review was premature as neither the Master nor the Court reviewed those documents. Afterwards, Open’s counsel indicated that Open opposes the relief and for the first time claimed that the City waived privilege to the duplicate documents, despite them being individually noted. See Dkt. 203 at 13- 15 and n. 11-19. Case 1:21-cv-02063-CNS-MEH Document 208 Filed 04/03/23 USDC Colorado Page 2 of 4 -3- e. Whether portions of documents PRIV000582 and PRIV000644 are also privileged since the Court found PRIV000278 to be privileged; and f. Whether documents PRIV000433, PRIV000454, PRIV000464, PRIV000622, PRIV000671, PRIV000677, PRIV000693, PRIV000695, and PRIV000698 are also privileged since the Court found PRIV000421 to be privileged.2 5. All of these documents are duplicates or near-duplicates of documents that the Court already found to be privileged and the City asks that they Court clarify that the duplicates and near-duplicates are also privileged. Respectfully submitted, this 3rd day of April, 2023. DORSEY & WHITNEY LLP 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 2 The City provided electronic copies of these documents to the Court during the parties’ March 20, 2023 hearing. The City, however, is happy to deliver an additional copy if the Court would prefer. Case 1:21-cv-02063-CNS-MEH Document 208 Filed 04/03/23 USDC Colorado Page 3 of 4 -4- CERTIFICATE OF SERVICE I hereby certify that on April 3, 2023, I caused the foregoing document to be electronically filed via CM/ECF system which will send notification of such filing to the following: Alexander D. White Paul D. Swanson Hannah E. Armentrout Anna C. Van de Stouwe Alexandra E. Pierce HOLLAND & HART LLP 555 17th Street, Suite 3200 Denver, CO 80202 Telephone: (303) 295-8578 adwhite@hollandhart.com pdswanson@hollandhart.com hearmentrout@hollandhart.com acvandestouwe@hollandhart.com aepierce@hollandhart.com Attorneys for Defendants s/ Stacy Starr Dorsey & Whitney LLP Case 1:21-cv-02063-CNS-MEH Document 208 Filed 04/03/23 USDC Colorado Page 4 of 4