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HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 203 - City's Opposition To Dfs' Motion To Adopt Special Master RecommendationIN 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. PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO ADOPT THE SPECIAL MASTER’S RECOMMENDATIONS (DKTS. 195, 196) AND FOR FEES, COSTS, AND FURTHER RELATED RELIEF [DKT. 199] Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 1 of 22 1 INTRODUCTION After undersigned counsel advised Defendant’s counsel that the City would be objecting to the Recommendations, Defendants sought to reverse the briefing and filed a request the Court to adopt the Special Master’s Recommendations and further relief that would only follow if they are adopted without change. Defendants have again placed the City in a prejudicial position requiring it to expend time and resources defending issues not yet ripe. Nevertheless, the City opposes Defendants’ premature motion for several reasons. First, contrary to Defendants’ request, the Court should not adopt the Special Master’s two Recommendations. Rather, the Court should substantially revise them. As to the Special Master’s Recommendation on the City’s prior Motion to Quash Defendant’s third-party subpoena to Vanir Construction Management, Inc. (“Vanir”), a consultant to the City on the project [Dkt. 196], the Court should primarily reject the Recommendation because Special Master did not consider the deliberative process privilege in her analysis. Rather, the Special Master claimed that the Court had already ruled that the City had “waived any argument that the deliberative-process privilege protected these documents.” Id. at 4. The Special Master, however, is incorrect. The Court never considered the actual documents over which the City asserted the deliberative process privilege. Not only did the City not waive its privilege, but this Court specifically stated during the parties’ November 17, 2022 Discovery Conference that its statement was not binding and considered it a “live issue and not a dead issue”. Further, the Special Master incorrectly identified the City’s documents PRIV000750, PRIV000803 and PRIV000833 as not being privileged. These documents contain an Assistant City Attorney on the chain and specifically request the attorney to review a document (PRIV000804) or the attorney is specifically being asked to “advise” on an Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 2 of 22 2 issue. Accordingly, the Court should deny Defendants’ motion and reject the Recommendation concerning the deliberative-process privilege to the documents identified by the City1 and reject that documents PRIV000750, PRIV000803, PRIV000804 and PRIV000833 are not privileged. Similarly, with respect to the Special Master’s Recommendation on Defendants’ Motion to Compel documents concerning the City’s contractor, TMG [Dkt. 195], the City respectfully objects to the Recommendation concerning certain protected documents and communications. Importantly, as the Court previously found (and as supported by the Declaration of Assistant City Attorney, Cyril Vidergar), the City engaged TMG in anticipation of litigation with Defendants and that “the City was anticipating litigation as early as March 2021.” Dkt. 97 at 10. The Court also found that mental impressions, theories, or opinions by TMG, so long as not just factual, constituted work-product. Id. at 15. Based on this prior ruling, the City requests that the Court reject the Special Master’s Recommendation on the following-identified documents in the City’s privilege log concerning TMG as they are protected by the work-product doctrine: PRIV000019, -109, 110, 119, 121, 156, 185, 205, 207, 208, 209, 245, 270, 278, 296, 297, 341, 421, 476, 487, 529, 564, and, 670.2 Further, contrary to the Special Master’s findings, drafts of TMG’s report provided solely to the City are protected by the work-product doctrine and disclosure should be rejected by the Court. See PRIV000006-11, 13, 15, 17-18, 20-21, 26-29. Thus, Defendants’ request to adopt the Special Master’s Recommendations should be denied. 1 These do not include the 36 produced Vanir documents that that the City clawed back based on the deliberative process privilege and that the Special Master did not review and/or provide recommendations to, specifically thos e identified as: VANIR000003, 4, 42, 43, 133, 134, 136, 137, 151, 152, 884, 885, 897, 898, 924, 925, 940, 941, 1075, 1081, 1087, 3151, 4987, 4993, 4999, 5005, 5012, 5019, 5026, 5218, 5224, 5230, 5236, 5243, 5250, 5257. For the same reasons discussed below, these documents should also be withheld under the deliberative process privilege. 2 Duplicates or near-duplicate versions of the same documents are found at: PRIV000054-55, 184, 210, 211, 223, 224, 230, 262, 263, 285, 311, 320, 326, 328-29, 425, 433, 445, 454, 464, 497, 513, 530, 545 , 560-61, 590, 618, 622, 638, 671, 677, 693, 695, and 698. Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 3 of 22 3 Second, the Court should deny Defendants’ request for fees and costs in litigating the privilege disputes because the City’s privilege assertions are substantially justified, including the legitimate objections raised herein. The majority of the Special Master’s Recommendation on the Vanir-related documents should not be adopted. Further, the City acted in good faith in attempting to resolve the parties’ privilege disputes, including narrowing its privilege claims or producing over 250 documents from its original TMG log, focusing on producing documents related to fact- finding that supported the TMG report while withholding documents related to opinion and analysis. Losing on some arguments does not mean that the City did not have a reasonable basis to assert the identified privileges especially since Defendants could have avoided much of the incurred fees and costs had they simply waited until after the City produced its privilege logs instead of raising theoretical disputes. For the same reasons, the Court should deny Defendants’ request that the City bear all of the costs for the Special Master especially when the Court requested the appointment of the Special Master due to its schedule, the parties agreed to the appointment, and in turn, the Court ordered the parties to split the costs. The City may not have agreed if it included cost-shifting. Defendants cannot now try to place the burden all on the City. Finally, the Court should reject Defendants’ request that the Court refer the remaining documents withheld by the City for in camera review by the Special Master. BACKGROUND 1. In January 2021, the City retained TMG to determine how deep Defendants’ failures were on the project and whether there was a path forward. Dkt. 58-1, ¶ 6. 2. On October 29, 2021, Defendants served the City written discovery with Request No. 3 seeking “all documents concerning TMG Consulting’s role with the Project….” Dkt. 43-10 Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 4 of 22 4 at 13. On November 29, 2021, the City objected and responded: [T]he City will withhold documents related to TMG’s work at the direction and supervision of the City’s counsel, documents protected by the attorney-client and work product privileges, and documents related to TMG’s retention as a consulting, non-testifying expert. To the extent there are non-privileged, responsive documents from the relevant timeframe within the City’s possession, custody, or control after a reasonable search, the City will produce the same. Id. at 14. 3. After a mutually agreed informal stay to discuss settlement, in April 2022, the parties finalized search terms and began producing documents. 4. On May 24, 2022, before the City finished reviewing its over 100,000 documents and before the parties exchanged any privilege logs, Defendants filed a Motion to Compel Production of TMG Documents seeking a blanket ruling as to all documents concerning TMG under the theory that TMG was not retained in anticipation of litigation and that the City had waived any work product by disclosing the final report to Defendants. Dkt. 43. 5. Around the same time, in late-April 2022, Defendants served a third-party subpoena to Vanir Construction Management, Inc. (“Vanir”), a consultant to the City on the project. The subpoena was relatively early in discovery—prior to depositions, prior to the parties making their full document productions, and prior to the production of privilege logs. At that time, the City was in the midst of reviewing over 100,000 potentially responsive documents (it would ultimately produce over 44,000 responsive documents [not including those received from third-parties]) and conducting privilege reviews over several thousand other documents. 6. On May 27, the City timely filed a Motion to Quash Defendants’ subpoena to Vanir. See Dkt. 45. Rather than fully quash the subpoena, the City’s key request was to maintain all privileges by allowing the City to make a fulsome privilege review before any Vanir documents Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 5 of 22 5 were produced to Defendants and then provide a privilege log.3 See Dkt. 68 at 2. Since the posture was based on a subpoena and Vanir documents had not been produced, the City was obviously raising potential concerns that were not specific to precise documents in Vanir’s possession. Even so, the City raised the deliberative process privilege, but did not expand on the likely specific application to the Vanir documents as it was still reviewing tens of thousands of documents of its own and did not have the ability to review Vanir’s set of documents beforehand. Dkt. 45. 7. On August 16, the Court entered its Order on Defendants’ Motion to Compel [Dkt. 97]. There, the Court rejected Defendants’ request for a blanket ruling that all documents with TMG were not privileged. Specifically, the Court rejected Defendants’ position that TMG was not retained in anticipation of litigation. Id. at 11. Further, the Court rejected Defendants’ arguments that the City had waived the work-product privilege by providing the final report to Defendants. Id. at 13. In fact, the Court found that any “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 documents.” Id. at 14. Also on August 16, the Court entered its Order on the City’s Motion to Quash [Dkt. 98]. 8. On September 9, after numerous conferrals, the parties agreed to a global resolution concerning several discovery issues, including those relating to Vanir and TMG, as well as other disputes the City had with Defendants concerning Defendants’ CORA request. Ex. 1. Defendants, subsequently, decided to abandon the global resolution. 3 Importantly, at that time and based on the parties’ agreement to not produce logs until they were done with disclosures, the City had not yet furnished any privilege logs. Rather, the City produced its first privilege logs on July 12, 2022, per Magistrate Judge Wang’s request [Dkt. 82-83]. Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 6 of 22 6 9. Between September 30 and October 10, Vanir produced responsive documents. 10. On October 10, 2022, pursuant to Section 12.1 of the Stipulated Protective Order, F.R.E. 502(d), and Rule 45, the City sent a claw-back letter to Defendants asserting privilege over documents that Vanir produced to both parties.4 Ex. 2. 11. On November 9, 2022, after the City narrowed its privilege assertions over more than 50 Vanir-related documents and over 200 TMG-related documents, Defendants submitted a status report to the Court disputing 24 Vanir documents the City withheld, or claw ed back, under the deliberative-process privilege (or in combination with work-product or the attorney-client privilege) and disputing approximately 75-100 unique TMG documents5 the City withheld under the work-product doctrine (or in combination with the attorney client privilege). Dkt. 115-3 at §§ 14(a)-(c) and 15(a)-(b).6 12. On November 15, 2022, the parties submitted brief summaries to the Court regarding their dispute in advance of the Discovery Conference set for November 17, 2022. In their November 9 and 15 submissions to the Court, Defendants claimed that the City waived its deliberative-process privilege based on footnote 4 in the Court’s August 16 Order and the failure to state the deliberative process privilege in response to requests for production. The City, in its November 15 submission to the Court, refuted these arguments because the Court’s Order dealt with whether the City had adequately stated that privilege as a basis to quash, not whether the City had waived its privileges. Dkt. 115-2. 4 The City had also previously clawed back several memoranda it had inadvertently disclosed based on the deliberative process privilege. 5 Defendants claim to be disputing over 200 TMG documents, but many, if not al l, are duplicates or near-duplicates. 6 Contrary to the Special Master’s statements [Dkt. 196 at 3 -4], this was not a jointly-submitted status report and was not filed on November 28, 2022 (although, a copy was filed on November 28 as an exhibit). Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 7 of 22 7 13. During the November 17, 2022, Discovery Conference, while discussing this issue, the Court stated: Ex. 3 at 8:18-25. 14. The Court further stated: Id. at 9:13-16. 15. On November 28, per the Court’s request, the parties submitted five-page discovery briefs on their respective positions on all of the privilege issues concerning the TMG and Vanir related documents. See Dkts. 114-115. 16. While the City was prepared to proceed with the Court deciding the issues (and provided copies of all privilege documents to the Court), on January 17, 2023, due to the Court’s schedule and the parties’ agreement, the Court entered its Order Appointing Master to review the various categories of documents at issue in order to assist the Court in making a determination of privilege. Dkt. 167. In that Order, the Court instructed that the “Master shall be reimbursed equally by the parties for all reasonable fees and expenses incurred.” Id. at ¶ 6. Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 8 of 22 8 17. On February 21, 2023, the Special Master filed its Recommendation regarding the Vanir-related documents. Dkt. 196. In that Recommendation, addressing the documents the City had withheld under the deliberative process privilege, the Special Master stated that “Magistrate Judge Hegarty found in FN4 that the City, by failing to adequately brief the issue of the deliberative-process privilege, waived any argument that the deliberative-process privilege protected these documents.” Id. at 4. The Special Master further stated that “[t]o the extent the City is now asking that that ruling be reconsidered, it is outside the referral to the Special Master and should specifically be address to Magistrate Judge Hegarty. Accordingly, the Special Master will not address these documents.” Id. Subsequently, for every document the City had asserted the deliberative-process privilege, the Special Master did not consider the privilege. See id. at 5-10. 18. Also on February 21, the Special Master filed its Recommendation regarding the TMG-related documents. Dkt. 195. In that Recommendation, the Special Master made findings as to documents withheld by the City under the work-product or the attorney-client privilege. 19. On February 27, 2023, the City requested to confer with Defendants regarding its objections to the Special Master’s recommendation. Ex. 4. Subsequently, Defendants stated that they oppose the City’s objection and for the first time indicated that they would like to confer on Defendants’ current motion. Id. On March 2, counsel for both parties conferred via telephone whereby the City’s counsel indicated that Defendants’ motion would be premature and an inefficient way by creating a race to file especially since the City already indicated that it intended to timely object under Fed. R. Civ. P. 53. The City was entitled to (and needed) 21 days to prepare its objections. Defendants ignored the City’s position and filed its premature motion. 20. The City now objects to certain documents that the Special Master found to not be Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 9 of 22 9 protected and further requests that the Court deny the remaining portions of Defendants’ motion.7 ANALYSIS I. The Court Should Deny Defendants’ Motion and Decline to Adopt Certain Findings in the Special Master’s Recommendations. In acting on a Special Master’s recommendation, the Court “may adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the master with instructions .” Fed. R. Civ. P. 53(f). The Court decides de novo all objections to findings recommended by the Special Master. Dkt. 167, ¶ 5. Here, the Court should reject the Special Master’s findings as set forth below. A. The Court Should Substantially Reject the Special Master’s Recommendations Concerning the City’s Motion to Quash and the Vanir-Related Documents. The Court should reject the Special Master’s Recommendation for two reasons. First, the documents identified in Sections A-B of the Recommendation [Dkt. 196] are protected by the deliberative-process privilege. The City did not waive its privilege and the Special Master was wrong to not consider it. Second, documents PRIV000750, PRIV000803, PRIV000804 and PRIV000833 in Section C of the Recommendation are protected by the attorney-client privilege and the Special Master erred in finding otherwise. 1. The City Did Not Waive the Deliberative-Process Privilege and the Special Master Should Have Considered It. The Special Master misconstrued the timing, purpose, and context of the Court’s August 16 Order [Dkt. 98]. The Court’s August 16 Order was based on the City’s Motion to Quash Defendants’ April 2022 Subpoena to Vanir. As further discussed above, this subpoena was served prior to depositions, prior to the parties making their full document productions, prior to the 7 Under Fed. R. Civ. P. 53, the City’s objections were due on March 14, 2023. However, per the Court’s March 14 Minute Order [Dkt. 202], the City is incorporating its objections herein. Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 10 of 22 10 production of privilege logs, and prior to seeing any of the documents that Vanir would produce. In the Order on the Motion to Quash, the context of the discussion of waiver focuses on whether the deliberative-process privilege would be considered as a basis to quash and determined that it would not. Put differently, the City was raising hypothetical concerns at the time of its Motion to Quash and proposing a process to avoid potential disclosure. The Court disagreed and required a response to the subpoena. The City did not waive privilege over its own documents it was still reviewing or over documents in Vanir’s possession that it had not seen. When the actual production occurred, the City acted promptly to protect its privilege over the actual documents at issue. In fact, after completing its privilege review of its own documents, the City promptly and timely identified several dozen memoranda and communications subject to the deliberative-process privilege which it clawed back8 pursuant to Rule 502 and the parties’ Protective Order and identified them in its privilege logs. See White v. Lifelong Learning, Inc., 586 F. Supp. 2d 1250, 1266 (D. Kan. 2008) (finding that short delay in providing privilege log does not justify waiver). Moreover, the documents that were later produced by Vanir were also promptly and timely clawed back (or withheld altogether by the City for the small subset that Vanir produced directly to the City for privilege review). Like the documents in the City’s possession, these documents were identified after the City’s Motion to Quash. The City made no waiver—the time for it to claim deliberative-process privilege was when it was submitting privilege logs after reviewing thousands of potentially relevant and responsive documents. And the City did so. Arguments 8 Some of the documents were in Defendants’ possession not due to product ion by the City, but because after Defendants were terminated and sued, they took a complete copy of the City’s share drive even though they knew they were no longer authorized to access it. See e.g., Dkt. 64. Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 11 of 22 11 before that were about potential privileges that might be implicated, not actual claims over actual documents. In situations like this, courts have regularly found involuntary disclosures based on court order to not constitute a waiver.9 In fact, on November 17, this Court confirmed the deliberative-process privilege was a “live issue and not a dead issue” and that the Court’s waiver comment in the August 16 Order related to whether to quash the subpoena. Ex. 3 at 8:18-9:16. Nonetheless, the documents identified in Sections A-B of the Recommendation are protected by the deliberative-process privilege because they examine the City’s past actions on the project with Defendants, analyze them (including identifying issues with the project), and make recommendations for changes to the project going forward. See Russell v. Department of the Air Force, 682 F.2d 1045, 1048-1049 (D.C. Cir. 1982) (finding draft reports protected by the deliberative-process privilege). Open has no need for these drafts because the City has produced final versions drafted by Dr. Michelle Frey at Vanir. Their disclosures would reveal the very deliberative process that the privilege protects. See Nat’l Security Archive v. CIA, 752 F. 3d 460, 465 (D.C. Cir. 2014) (finding drafts exempt from disclosure under deliberative-process privilege). Accordingly, the Court should reject the Special Master’s Recommendation and for the same reason, deny Defendants’ motion to adopt the Recommendation. 2. Documents PRIV000750, PRIV000803, PRIV000804 and PRIV000833 are Protected by the Attorney-Client Privilege. The Special Master acted contrary to law when determining documents identified as 9 See In re App. Of Palantir Techs. Inc., 2022 U.S. Dist. LEXIS 116921 (D. Colo., June 30, 2022) (citing Equity Analytics, LLC v. Lundin, 248 F.R.D. 331, 334 (D.D.C. 2008) (“a judicially compelled disclosure of otherwise privileged information is not a waiver of any privilege that could be claimed.”); In re Subpoenas Duces Tecum, 738 F.2d 1367, 1373 (D.C. Cir. 1984) (“The distinction between voluntary disclosure and disclosure by subpoena is that the latter, being involuntary, lacks the self-interest which motivates the former. As such, there may be less reason to find waiver in circumstances of involuntary disclosure.”)). Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 12 of 22 12 PRIV000750, PRIV000803, PRIV000804 and PRIV000833 were not subject to the protections of attorney-client privilege. The attorney-client privilege protects communications between a client and an attorney, including those by an in-house counsel, which were “made to obtain or deliver legal advice and were treated as confidential.” Lang v. Intrado, Inc., 2007 WL 4570558, at *2 (D. Colo. Dec. 26, 2007) (J. Hegarty). The four documents meet these requirements. First, contrary to the Special Master’s findings, PRIV000750 and PRIV000803 do more than just “gather” facts about the project. Rather, as evidenced in the second email in PRIV000750 and the third email PRIV000803, and as described in the City’s privilege log, they seek Assistant City Attorney Cyril Vidergar’s review and input on documents, including specifically PRIV000804.10 Further, all three documents specifically state that they intended to be kept confidential. Thus, these documents are privileged and should not be disclosed. Second, the Special Master is incorrect that PRIV000833 only “communicates facts.” Rather, as described in the City’s privilege log, the second email in the chain specifically requests legal advice from Attorney Vidergar regarding accountability issues. Further, it was intended to be kept confidential. Thus, this document is also privileged and should not be disclosed. Accordingly, the Court should reject the Special Master’s Recommendation as to PRIV000750, PRIV000803, PRIV000804, and PRIV000833 and for the same reasons, the Court should deny Defendants’ premature motion. B. The Court Should Reject Certain Portions of the Special Master’s Recommendation on Defendants’ Motion to Compel TMG-Related Documents. Pursuant to Federal Rule of Civil Procedure 26(b)(3)(A), a party generally “may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by 10 PRIV000804 is also protected by the deliberative -process privilege for the reasons discussed above. Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 13 of 22 13 or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Work product generally consists of fact work product and opinion product. Fact work product “generally consists of primary information, such as verbatim witness testimony or objective data collected by or for a party or a party’s representative.” Robinson v. Texas Auto. Dealers Ass’n, 214 F.R.D. 432, 441 (E.D. Tex. 2003). In contrast, opinion work product is subject to enhanced and heightened protection. See, e.g., In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003) (opinion work product receives greater protection than ordinary work product and is discoverable only upon a showing of rare and exceptional circumstances). Indeed, even where a court orders the production of work product protected materials, however, the court “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B). Here, the Court should reject the Special Master’s Recommendation as to the TMG-related documents identified below because they are protected by the work-product doctrine as they include opinions and analysis, not just verbatim factual depictions or regurgitations. 1. PRIV000019: Contrary to the Special Master’s findings, this is not “summary in nature”. Rather, it provides significant detail into TMG’s mental impressions and analysis of issues directly related to this litigation, including certain opinions. 2. PRIV00109 (and subsequently PRIV00110): While -109 is a summary email, its attachment -110, contains significant mental impressions and opinions related to this litigation, including key issues to raise with TMG for their professional opinion as the City’s consultant, including whether or not to continue working with Open— fundamentally the key issue in this lawsuit. 3. PRIV00121: Contrary to the Special Master’s findings, this email does not just concern product functionality. Rather, the second email in the chain specifically reflect TMG’s opinions and analysis, including outstanding questions and theories on the project in Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 14 of 22 14 order to provide recommendations.11 4. PRIV00156: This document reflects TMG opinions provided to the City and proposed recommendations only to the City in confidence. 5. PRIV00185: Contrary to the Special Master’s findings, this document is more than just “general billing questions and meeting planning.” Rather, page 2 reflects TMG’s analysis and mental impressions concerning the Project and opinions as to next steps.12 6. PRIV00205: This document is not just a “general discussion about software” as found by the Special Master. Rather, it discusses TMG’s mental impressions and proposed next steps in identifying “extreme” issues concerning this litigation.13 7. PRIV00207 (and subsequently PRIV00208)14: While -207 is an email discussing factual issues, its attachment -208, reflects significant issues discussed with TMG in order to formulate its opinions and analysis and identifies key proposals.15 8. PRIV00245: Contrary to the Special Master’s findings, this document is more than just a factual summary. Rather, it provides insight into TMG’s impressions and opinions on the Project as well as proposals for next steps, including potential negotiation points. 9. PRIV00270: This document contains a significant number of opinions and impressions by TMG concerning the Project, including issues and risks. 10. PRIV00278: This reflects discussions with TMG regarding scope of work and purpose of work which if revealed discloses significant mental impressions and opinions of the City as to why it retained TMG as a consultant in anticipation of litigation.16 11. PRIV00296-97: While -296 is not privileged, its attachment -297 contains TMG’s impressions/opinions/comments on certain MPSA language. Indeed, contrary to the Special Master’s findings, they are more than just highlights. Rather, it includes significant impressions and opinions as to the Project and scope of MPSA language.17 12. PRIV00341: Contrary to the Special Master’s findings, this document consists of more than just factual regurgitations. Rather, it provides TMG’s mental impressions and perspectives unknown to Defendants. 13. PRIV00421: In this document, TMG is specifically asking the City for input in order 11 Similarly, this analysis applies to PRIV000545 and 618. 12 Similarly, this analysis applies to PRIV000285 and 530. 13 Similarly, this analysis applies to PRIV000230, 497, 590, and 638. 14 Similarly, this analysis applies to PRIV000054-55, 210-211, 262-63, 328-29, and 560-61. 15 Similarly, this analysis applies to PRIV000502-503. 16 Similarly, this analysis applies to PRIV000582 and 644. 17 Similarly, this analysis applies to PRIV000679-80. Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 15 of 22 15 to provide additional opinions/analysis in anticipation of litigation.18 14. PRIV000476: This document reflects work product being requested from TMG regarding key litigation issues, including the validity of certain actions by Defendants. 15. PRIV000487: This document reflects TMG’s interpretation of the MPSA terms and opinions.19 16. PRIV000529: This document reflects more than factual statements, rather, it requests TMG for advice and recommendation regarding key issues in this litigation. 17. PRIV000654: Contrary to the Special Master’s findings, this document communicates more than “factual information”. Rather, it addresses key concerns provided to TMG in preparation for conducting its analysis into the Project in order to provide recommendation of next steps. 18. PRIV000670: This document reflects strategic communications regarding whether and how to include Defendants in TMG’s preliminary consulting work.20 Additionally, contrary to the Special Master’s Recommendation, drafts of TMG’s report/assessment should be withheld as protected by the work-product doctrine. For instance, in Hale v. Emporia State Univ., 2018 U.S. Dist. LEXIS 26562 (D. Kan., Feb. 20, 2018), defendant had already produced to plaintiff the final version of the memorandum summarizing the investigation. Defendant argued that it should not be “compelled to produce the draft version of this reports…under the work product doctrine as the drafts contain mental impressions of [defendant’s] general counsel.” Id. at 21. The court agreed with defendant and denied plaintiff’s motion to compel drafts of the memorandum which likely contain notations or revisions that would disclose the mental impressions of defendant’s “counsel or other representative.” Id. Here, like the court in Hale, the Court should similarly reject the Special Master’s recommendations in 18 Similarly, this analysis applies to PRIV000433, 454,464, 622, 671, 677, 693, 695, and 698. 19 Similarly, this analysis applies to PRIV000184, 223, 224, 311, 320, 326, 425, 445, and 513. 20 Undersigned counsel attempted to confer with Defendants’ counsel regarding these documents based on Defendants’ counsel statement to the Court even though Defendants are not able to meaningfully confer as they do not have the documents. Nevertheless, Defendants oppose the City’s position herein. Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 16 of 22 16 disclosing TMG’s draft reports/assessments identified on the City’s privilege log at: PRIV000006- 11, 13, 15, 17-18, 20-21, 26-29. II. Defendants Are Not Entitled to Fees and Costs Because the City Acted in Good Faith and its Positions are Substantially Justified. Defendants seek fees incurred with respect to their motion to compel TMG documents and with respect to the City’s motion to quash Vanir documents. Defendants are not entitled to either set of incurred fees. First, under Fed. R. Civ. P. 37(a)(5)(A)(ii), the prevailing party on a motion to compel “must not” be awarded its fees and expenses if “the opposing party's nondisclosure, response, or objection was substantially justified.” See Fed. R. Civ. P. 37(a)(5)(A)(ii) (emphasis added). “Substantial justification” is not a high burden; it is satisfied where there exists a genuine dispute concerning compliance. Pierce v. Underwood, 487 U.S. 552, 565-66 and n.2 (1998) (“a position can be justified even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.”). In the discovery context, “substantial justification” requires justification to a degree that could satisfy a reasonable person that parties could differ as to whether the privilege applies. Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D. Kan. 1995). For instance, substantial justification includes circumstances when an attorney instructs a witness not to answer based on valid or colorable claims of privilege, even if the court ultimately determines the privilege does not apply. EEOC v. Freeman, 288 F.R.D. 92, 102-03 (D. Md. 2012) (finding imposition of sanctions not warranted on colorable claims of privilege even when the court does not sustain the objection); see also EEOC v. Albertson’s, LLC, 2008 WL 4877046 (D. Colo. 2008) (denying sanctions to employer based on EEOC’s assertion of privilege objections). Here, the City has taken reasonable positions on the work-product privilege as to Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 17 of 22 17 documents concerning TMG. The Court has already found in favor of the City that the decision to hire TMG was in anticipation of litigation and that any impressions, opinions, an d analysis constitutes work-product. See Dkt. 97. In other words, Defendants are not entitled to fees on their original motion to compel (which sought a ruling that the privilege could not apply to TMG) because they lost.21 Further, the City has provided detailed information on its privilege logs concerning the withheld TMG documents and as further addressed above, the Court should reject many of the Special Master’s findings as numerous documents reflect TMG’s opinions, analysis, and mental impressions, and not just factual representations. Defendants are also not entitled to any fees as they are the cause of their own expenses. Had Defendants waited to raise issues concerning TMG documents withheld by the City, rather than asserting a premature motion to compel when the City had not even finished reviewing documents or produced a privilege log, they could have avoided unnecessary fees. Defendants, however, chose to ignore the City’s pointing this out during conferral and the City should not be held responsible for Defendants’ poor strategic and inefficient choices, especially since Defendants have not claimed, and cannot claim, that the City acted in bad faith. See Heartland Surgical Specialty Hospital, LLC v. Midwest Div., Inc., 2007 WL 1246216, at *7 (D. Kan. Apr. 27, 2007) (ruling that the non-prevailing party on a motion to compel was only responsible for its own costs and fees where it “has not exercised bad 21 In suggesting that the Special Master’s ruling means that the City “must pay Open’s expenses,” Defendants misstate relevant case law. Defendants cite an incomplete sentence from Kirzhner v. David Sliverstein for the proposition that “[I]f a motion for protective order is denied, Rule 37(a)(5)(b) provides for the award of attorneys fees to the party resisting the motion.” Mtn. at 8, citing Kirzhner v. David Sliverstein, 2011 U.S. Dist. LEXIS 40467, at *23 (D. Colo. Apr. 5, 2011). The second half of this sentence is that a fee award can be made “under the same cond itions [as Rule 37(a)(5)(A)].” Kirzhner at *23. In other words, the substantial justification standard referenced above applies to a motion for a protective order. Id. Far from awarding attorneys’ fees automatically in connection with a protective order, the Court awarded fees only where the parties had already briefed the issue, and based on the lack of a substantial justification, and otherwise overturned her prior grants of attorneys’ fees. Id. at 24-27. The other cases cited by Defendants, including Williams, Lang, and Pandeosigh all reiterate Kirzhner’s ruling that fees related to motions to protect and/or quash can be awarded only after a finding that a party’s position was not “substantially justified.” Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 18 of 22 18 faith in pursuing [its] objections”). Likewise, Defendants are not entitled to fees with respect to the Cit y’s motion to quash Vanir-related documents. Defendants’ entire argument is based on the assumption that the Court will adopt the Special Master’s Recommendation that the City waived the deliberative-process privilege. However, as discussed above, the Court already stated that the deliberative-process privilege was a “live issue” and “not a dead issue.” In other words, despite this Court’s statements, which Defendants’ counsel was present for, Defendants prematurely and improperly seek fees based on a Recommendation that should be rejected. Further, even if the Recommendation is adopted, Defendants fail to assert that the City acted in bad faith. That is because they cannot. The City has complied with all orders, produced over 44,000 documents and over 221,000 pages, has asserted the deliberative process privilege throughout this litigation and has cooperated in good faith with Defendants in providing final versions of documents in order to avoid privilege disputes. Moreover, Defendants are not entitled to recover their share of the Special Master’s fee invoice.22 First and foremost, the City is not the “more” responsible party for the reference to the Special Master. Rather, per the Court’s scheduling conflict, and th e parties’ agreement, the Court appointed the Special Master to aid in determining privilege. The City endeavored for months to negotiate a solution. Defendants chose to resurrect privilege disputes, even after the City agreed to come to a “global resolution” and provided over 250 TMG-related documents and final versions of Vanir memos. See Ex. 1. Defendants further continued to raise privilege issues after having the opportunity to depose TMG on two different occasions and after the filing of dispositive motions. 22 Defendants’ reliance on ORP Surgical, LLP v. Howmedica Osteonics Corp., 2022 U.S. Dist. LEXIS 236692, at *41 (D. Colo. Dec. 27, 2022) and Glover v. Wells Fargo Home Mortg., 629 F. App’x 331, 339 n.7 (3d Cir. 2015) are without merit. Neither case shifts fees of a special master to the other party. Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 19 of 22 19 Finally, the Court ordered both parties to split the costs of the Special Master, which Defendants never objected to. They cannot now ask for the costs to be shifted to the City, especially when the City did not take frivolous or bath faith positions. If that were the case, then no party would agree to the appointment of a special master. See Thabault v. Chait, 2009 U.S. Dist. LEXIS 576 (D.N.J. Jan. 7, 2009); see also Doré Energy Corp. v. Prospective Inv. & Trading Co., 270 F.R.D. 262, 268 (W.D. La. 2010) (“Where reference to the master is on the court’s own motion and the master’s work benefits both sides as well as the court, it is reasonable to apportion cost of the master’s service on an equal basis.”). Thus, Defendants’ requested costs should be denied. III. The Court Should Deny Defendants’ Request for an In Camera Review by the Special Master of the City’s Remaining Withheld Documents. Defendants argue that the Court should order in camera review of the City’s other withheld documents because the Special Master’s review has now “revealed that the City’s position in Its privilege log are so widely unsupported” and that the City should bear the cost of such review. Mtn. at 9-10. The two cases Defendants cite for this proposition are inapposite. Defendants cite to In re Chevron, but the cited section is a reference to the Court’s prior order. In that order, the Court required a party to produce its logged documents for in camera review because the privilege log at issue did not provide sufficient detail to allow the Court to make reasonable determinations on privilege. See In re Veiga, 746 F. Supp. 2d 27, 40. The same thing occurred in Earthworks v. U.S. Dep’t of Interior, 279 F.R.D. 180, 192-93 (D.C.C. 2012), where the court ordered in camera review based on a privilege log that did not contain clear information, including an index, that would allow the court to ascertain whether the claimed privileges were appropriate. Id. at 93. Both courts specifically noted the absence of information like an itemized list of the parties that participated in each listed communication. Unlike the parties at issue in these cases, the City has Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 20 of 22 20 provided detailed privilege log entries more than sufficient to allow the parties to identify and raise privilege disputes—and, indeed, has provided the same level of detail in its privilege log as Defendants. Indeed, it has actively worked to ensure all documents related to the issues before the special master were presented for her review. Further, Defendants’ request should be denied for several other reasons. First, it is premature as the City is objecting to the Special Master’s Recommendations, including numerous documents found to not be privileged. Second, the number of documents at issue are considerably less than Defendants portray. There are numerous duplicates or near duplicates in the documents that the Special Master found to not be privileged. Third, the TMG and Vanir issues were specialized disputes related to work product involving a third party and deliberative process (also largely involving a third party). Defendants have not raised any specific reason or issue with any of the City’s other withheld documents and in any event, those including attorneys in the To/From/Cc are obviously privileged and a review of those documents would simply be frivolous and a waste of judicial resources. Review of all of the City’s withheld documents does not serve judicial economy as such a broad request not only increases costs, but it would open the floodgates and allow any party to demand an in camera review just because of opposing party’s suspicion. See Armouth Int'l, Inc. v. Dollar Gen. Corp., 2015 U.S. Dist. LEXIS 148784 (M.D. Tenn. Nov. 2, 2015) (denying request for blanket review of privileged communications). Accordingly, the Court should deny Defendants request as both premature and unnecessary. CONCLUSION For the foregoing reasons, the City respectfully requests that the Court deny Defendants’ motion and for such other relief that the Court deems proper. Case 1:21-cv-02063-CNS-MEH Document 203 Filed 03/16/23 USDC Colorado Page 21 of 22 21 Respectfully submitted this 16th day of March, 2023. DORSEY & WHITNEY LLP s/ Case Collard Case Collard Andrea Ahn Wechter Maral J. Shoaei 1400 Wewatta Street, Suite 400 Denver, Colorado 80202-5549 Telephone: (303) 629-3400 Fax: (303) 629-3450 E-mail: collard.case@dorsey.com E-mail: wechter.andrea@dorsey.com E-mail: shoaei.maral@dorsey.com Attorneys for Plaintiff City of Fort Collins CERTIFICATE OF SERVICE I hereby certify that on March 16, 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 203 Filed 03/16/23 USDC Colorado Page 22 of 22 Exhibit 1 Case 1:21-cv-02063-CNS-MEH Document 203-1 Filed 03/16/23 USDC Colorado Page 1 of 3 This a compromise of existing disputes between the parties. All agreements herein are without prejudice and, should any of these issues re-emerge (due to new information or other developments), each side agrees that they will not use the delay related to t his agreement as a grounds to oppose. This agreement does not affect Open’s right, after conferral with the City, to challenge any of the privilege or work-product assertions that the City maintains or asserts after this agreement. Proposal: 1.The City will not seek to amend its complaint at this time to add causes of action related to Open obtaining documents in July 2021 or the CORA request. 2.Open will agree to not pursue its CORA request at this time or make new CORA requests. Open will agree to abide by the Protective Order and only seek the re- designation of documents when grounds exist pursuant to the protective order. 3.The City will not claim the deliberative process privilege as to Open on the following final memos from Michelle Frey. However, the City explicitly does not waive the privilege as to any other parties. Open agrees it will not use this agreement to argue for a broader waiver including a waiver as to scope. a.January 29, 2020 Confidential Internal Memorandum (D343_000709705) b.January 30, 2020 OASIS Decision Record Memorandum (Open_Intl_0034551) c.Feb 12, 2020 OASIS Decision Record Memorandum (D343_000009463) 4.The City will claw back, and Open will remove from its production and refrain from using, the January 29, 2020 OASIS Project Memorandum (Open_Intl_0034498) which is marked as protected by the deliberative process privilege and sent through counsel. Please note that D343_000709705 contains similar information. 5.The parties will inform Vanir’s counsel that it may provide its document production in response to Open’s subpoena, segregating for City’s pre-review only those documents that are sent to or from specified attorneys (Duval, Vidergar, Schmidt, and Dorsey personnel) and that request or provide legal advice. After its pre-review of those documents, the City may either produce or log the segregated documents. 6.The City will revisit the TMG documents over which it claimed work product in view of the Court’s order regarding the same, make a supplemental production, and provide a revised privilege log. The City in good faith will take a more liberal approach to categorizing documents as fact v. opinion work product with the intent to provide more documents to Open, such as TMG interview notes and scorecards. 7.The City will not object globally to Open’s use of documents obtained in July 2021 by Open from the Sharepoint site, but the City reserves its rights to object to individual documents on privilege grounds. The City’s agreement to allow the use of those documents does not indicate that Open’s conduct in obtaining the documents was proper, Case 1:21-cv-02063-CNS-MEH Document 203-1 Filed 03/16/23 USDC Colorado Page 2 of 3 2 which the City still disputes, and the City does not waive its right to seek discovery and otherwise raise the issue in these proceedings under the present pleadings. Case 1:21-cv-02063-CNS-MEH Document 203-1 Filed 03/16/23 USDC Colorado Page 3 of 3 Exhibit 2 Case 1:21-cv-02063-CNS-MEH Document 203-2 Filed 03/16/23 USDC Colorado Page 1 of 3 1400 Wewatta Street | Suite 400 | Denver, CO | 80202-5549 | T 303.629.3400 | F 303.629.3450 | dorsey.com CASE L. COLLARD (303) 352-1116 collard.case@dorsey.com October 10, 2022 VIA EMAIL Paul D. Swanson Holland & Hart 555 17th Street, Suite 3200 Denver, CO 80202 (303)295-8578 pdswanson@hollandhart.com Re: City of Fort Collins vs. Open International LLC, et al. Dear Paul: We are writing regarding the production of documents by Vanir. First, Vanir produced 26 documents just to the City that it believed were likely privileged; upon review, the City confirmed that all 26 documents were privileged. Second, Vanir produced to Open and the City documents under the following bates ranges that are protected by the attorney-client privilege, work- product, and/or the deliberative process privilege: 1. VANIR000003 2. VANIR000004 3. VANIR000042 4. VANIR000043 5. VANIR000062 6. VANIR000063 7. VANIR000102 8. VANIR000103 9. VANIR000133 10. VANIR000134 11. VANIR000136 12. VANIR000137 13. VANIR000139 14. VANIR000151 15. VANIR000152 16. VANIR000444 17. VANIR000445 18. VANIR000618 19. VANIR000619 20. VANIR000884 21. VANIR000885 22. VANIR000897 23. VANIR000898 24. VANIR000924 25. VANIR000925 26. VANIR000935 27. VANIR000940 28. VANIR000941 29. VANIR001060 30. VANIR001075 31. VANIR001081 32. VANIR001087 33.VANIR003151 34. VANIR004987 35. VANIR004993 36. VANIR004999 37. VANIR005005 38. VANIR005012 39. VANIR005019 40. VANIR005026 41. VANIR005218 42. VANIR005224 43. VANIR005230 44. VANIR005236 45. VANIR005243 46. VANIR005250 47. VANIR005257 These documents consistent of drafts of memoranda shared internally at the City and/or Vanir and internal City or Vanir emails regarding those drafts, and overlap substantially with documents already marked as privileged by the City and included in discussions pursuant to the parties’ prior global agreement regarding disputed privilege issues. Case 1:21-cv-02063-CNS-MEH Document 203-2 Filed 03/16/23 USDC Colorado Page 2 of 3 Paul D. Swanson October 10, 2022 Page 2 Pursuant to Section 12.1 of the Stipulated Protective Order and F.R.E. 502(d), please immediately and permanently destroy all copies/versions of the aforementioned documents and refrain from using or disclosing these documents in the course of this litigation or any other matter. Should Open challenge the City’s asserted privilege with respect to any of these documents, Open has an obligation to destroy these documents first and then raise issues with the Court, per the parties’ Stipulated Protective Order. Accordingly, please confirm that you have destroyed the documents identified above, and all copies/variations, by October 17, 2022. Sincerely, DORSEY & WHITNEY LLP s/ Case L. Collard Case L. Collard Case 1:21-cv-02063-CNS-MEH Document 203-2 Filed 03/16/23 USDC Colorado Page 3 of 3 Exhibit 3 Case 1:21-cv-02063-CNS-MEH Document 203-3 Filed 03/16/23 USDC Colorado Page 1 of 4 Case 1:21-cv-02063-CNS-MEH Document 203-3 Filed 03/16/23 USDC Colorado Page 2 of 4 Case 1:21-cv-02063-CNS-MEH Document 203-3 Filed 03/16/23 USDC Colorado Page 3 of 4 Case 1:21-cv-02063-CNS-MEH Document 203-3 Filed 03/16/23 USDC Colorado Page 4 of 4 Exhibit 4 Case 1:21-cv-02063-CNS-MEH Document 203-4 Filed 03/16/23 USDC Colorado Page 1 of 6 From:Anna C. van de Stouwe To:Collard, Case; Shoaei, Maral; Wechter, Andrea Cc:Starr, Stacy; Alex D. White; Paul D. Swanson; Marcy Weaver; Anne Tupler Subject:RE: CFC/Open - Meet and Confer re Open"s Fifth Set of Discovery Requests Date:Monday, February 27, 2023 3:29:59 PM Attachments:image001.png EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS. Hi Case, We’re happy to confer on this, but at this point we oppose a request to have the Special Master analyze the City’s deliberative-process assertions anew. Open’s position is that the City waived deliberative- process privilege and that Judge Hegarty already held as much. See Order on Motion to Quash at 6 n.4. We see no basis for the Special Master to revisit the issue. Another topic we would like to confer on is a motion to (1) affirm the Special Master’s findings, (2) award Open the attorney’s fees and costs it incurred in litigating the motion to compel and motion to quash (including the follow-up conferrals and briefing, additional log review, conference with the Special Master, and Special Master fees), and (3) have the Special Master review the City’s remaining privilege documents at the City’s expense given the high rate of improper privilege assertions. Please let us know the City’s position. Thanks, Anna Anna van de Stouwe Associate, Holland & Hart LLP acvandestouwe@hollandhart.com | T: (303) 295-8017 | M: (504) 605-9495 CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this email. From: collard.case@dorsey.com <collard.case@dorsey.com> Sent: Monday, February 27, 2023 8:30 AM To: Anna C. van de Stouwe <ACVanDeStouwe@hollandhart.com>; Shoaei.Maral@dorsey.com; wechter.andrea@dorsey.com Cc: Starr.Stacy@dorsey.com; Alex D. White <ADWhite@hollandhart.com>; Paul D. Swanson <PDSwanson@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com>; Anne Tupler <ATupler@hollandhart.com> Subject: RE: CFC/Open - Meet and Confer re Open's Fifth Set of Discovery Requests External Email Hi Anna – We also like to confer on an objection to the Special Master’s recommendation. In short, we believe that she should have analyzed the deliberative process privilege anew. Let us know if you will agree to have her do so. Case Case 1:21-cv-02063-CNS-MEH Document 203-4 Filed 03/16/23 USDC Colorado Page 2 of 6 Case Collard Dorsey & Whitney LLP 720 839 4353 From: Collard, Case Sent: Friday, February 24, 2023 11:16 AM To: 'Anna C. van de Stouwe' <ACVanDeStouwe@hollandhart.com>; Shoaei, Maral <Shoaei.Maral@dorsey.com>; Wechter, Andrea <wechter.andrea@dorsey.com> Cc: Starr, Stacy <Starr.Stacy@dorsey.com>; Alex D. White <ADWhite@hollandhart.com>; Paul D. Swanson <PDSwanson@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com>; Anne Tupler <ATupler@hollandhart.com> Subject: RE: CFC/Open - Meet and Confer re Open's Fifth Set of Discovery Requests Anna – We are available on 3/2 at 11am. Does that work for you? Case Case Collard Dorsey & Whitney LLP 720 839 4353 From: Anna C. van de Stouwe <ACVanDeStouwe@hollandhart.com> Sent: Thursday, February 23, 2023 3:54 PM To: Collard, Case <collard.case@dorsey.com>; Shoaei, Maral <Shoaei.Maral@dorsey.com>; Wechter, Andrea <wechter.andrea@dorsey.com> Cc: Starr, Stacy <Starr.Stacy@dorsey.com>; Alex D. White <ADWhite@hollandhart.com>; Paul D. Swanson <PDSwanson@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com>; Anne Tupler <ATupler@hollandhart.com> Subject: RE: CFC/Open - Meet and Confer re Open's Fifth Set of Discovery Requests EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS. Case, We drafted our Fifth Set of Discovery Requests with the goal of encompassing all written discovery that we will need on the topic of appropriations and expenditures. That being said, the documents and information we obtain from the City may require follow up. We also anticipate noticing at least one deposition of someone with knowledge of the City’s appropriations and expenditures. To ensure our conferral next week is productive, it would be helpful to receive the City’s proposed search terms and custodian list ahead of the meeting. Does that work for you all? We also note that Open may require additional written discovery and/or depositions concerning information we learn from the documents the Special Master determined should not have been withheld on the basis of privilege. Judge Hegarty said back in the Fall that he would permit further discovery Case 1:21-cv-02063-CNS-MEH Document 203-4 Filed 03/16/23 USDC Colorado Page 3 of 6 depending on what is in the City’s privilege production, so we need to assess what information is in the improperly withheld documents. Thanks, Anna Anna van de Stouwe Associate, Holland & Hart LLP acvandestouwe@hollandhart.com | T: (303) 295-8017 | M: (504) 605-9495 CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this email. From: collard.case@dorsey.com <collard.case@dorsey.com> Sent: Wednesday, February 22, 2023 5:47 PM To: Anna C. van de Stouwe <ACVanDeStouwe@hollandhart.com>; Shoaei.Maral@dorsey.com; wechter.andrea@dorsey.com Cc: Starr.Stacy@dorsey.com; Alex D. White <ADWhite@hollandhart.com>; Paul D. Swanson <PDSwanson@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com>; Anne Tupler <ATupler@hollandhart.com> Subject: RE: CFC/Open - Meet and Confer re Open's Fifth Set of Discovery Requests External Email Anna – Judge Hegarty did not rule that Open is now entitled to discovery. I recognize that you are referring to his statement: “To the extent Defendants claim prejudice, and they need discovery on Plaintiff’s assertions concerning appropriations and expenditures, I will allow it.” Judge Hegarty also ruled (in allowing the amendment) that: “Going in the present direction, however, does not so fundamentally alter the case as to establish legal prejudice.” To get discovery, Defendants must claim prejudice from the allowed amended and I wanted to understand the prejudice you are claiming now that the amendment has been allowed. Thank you for confirming the scope of the claimed prejudice. We believe the appropriate process would have been for Open to state the alleged prejudice and confer on the scope of any additional necessary discovery. Open was not entitled to just serve additional discovery. However, we can confer about that. Regarding the scope of discovery, can you confirm whether the written discovery already served will be the only additional discovery sought by Open in light of the granted amendment? I am in a depo on March 1, but I will talk with the team and propose some other times. Case Case Collard Dorsey & Whitney LLP Case 1:21-cv-02063-CNS-MEH Document 203-4 Filed 03/16/23 USDC Colorado Page 4 of 6 720 839 4353 From: Anna C. van de Stouwe <ACVanDeStouwe@hollandhart.com> Sent: Wednesday, February 22, 2023 5:33 PM To: Collard, Case <collard.case@dorsey.com>; Shoaei, Maral <Shoaei.Maral@dorsey.com>; Wechter, Andrea <wechter.andrea@dorsey.com> Cc: Starr, Stacy <Starr.Stacy@dorsey.com>; Alex D. White <ADWhite@hollandhart.com>; Paul D. Swanson <PDSwanson@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com>; Anne Tupler <ATupler@hollandhart.com> Subject: RE: CFC/Open - Meet and Confer re Open's Fifth Set of Discovery Requests EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS. Hi Case, We outlined the prejudice in our opposition to the City’s motion to amend. The City did not initially plead the appropriations affirmative defense. We first learned that the City planned to assert it after the deadline for propounding written discovery had passed and at the end of depositions. Accordingly, Open did not have a reasonable opportunity to seek discovery concerning the City’s appropriations and expenditures. Judge Hegarty has ruled that we are now entitled to that discovery. Are you available to confer on Wednesday, 3/1? Anna Anna van de Stouwe Associate, Holland & Hart LLP acvandestouwe@hollandhart.com | T: (303) 295-8017 | M: (504) 605-9495 CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this email. From: collard.case@dorsey.com <collard.case@dorsey.com> Sent: Wednesday, February 22, 2023 4:56 PM To: Anna C. van de Stouwe <ACVanDeStouwe@hollandhart.com>; Shoaei.Maral@dorsey.com; wechter.andrea@dorsey.com Cc: Starr.Stacy@dorsey.com; Alex D. White <ADWhite@hollandhart.com>; Paul D. Swanson <PDSwanson@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com>; Anne Tupler <ATupler@hollandhart.com> Subject: RE: CFC/Open - Meet and Confer re Open's Fifth Set of Discovery Requests External Email Hi Anna – Thanks for reaching out. We are happy to confer regarding Open’s Fifth Set of Discovery Requests, but Case 1:21-cv-02063-CNS-MEH Document 203-4 Filed 03/16/23 USDC Colorado Page 5 of 6 have a preliminary issue we would like to discuss. Specifically, based on Judge Hegarty’s January 26th Order, we do not believe Open has identified any prejudice allowing additional discovery concerning the City’s appropriations and expenditures. Can you please advise as to what prejudice Open claims justifies these additional discovery requests? This is a threshold issue that will affect the conferral on the scope of Open’s requested discovery. Case Case Collard Dorsey & Whitney LLP 720 839 4353 From: Anna C. van de Stouwe <ACVanDeStouwe@hollandhart.com> Sent: Tuesday, February 21, 2023 10:35 AM To: Collard, Case <collard.case@dorsey.com>; Shoaei, Maral <Shoaei.Maral@dorsey.com>; Wechter, Andrea <wechter.andrea@dorsey.com> Cc: Starr, Stacy <Starr.Stacy@dorsey.com>; Alex D. White <ADWhite@hollandhart.com>; Paul D. Swanson <PDSwanson@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com>; Anne Tupler <ATupler@hollandhart.com> Subject: CFC/Open - Meet and Confer re Open's Fifth Set of Discovery Requests EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS. Case, Andrea, and Maral, I’d like to get a meet and confer on the calendar to discuss search terms and custodians for the requests for production in our Fifth Set of Discovery Requests. Could you share a proposal for search terms and custodians by February 28? Then we could find a time to discuss that proposal during the second half of next week. Also, please confirm whether the City will share a copy of the thumb drive referenced in my February 14 email or otherwise produce its contents to us. Thanks, Anna Anna van de Stouwe Associate HOLLAND & HART LLP 555 17th Street, Suite 3200, Denver, CO 80202 acvandestouwe@hollandhart.com | T: (303) 295-8017 | M: (504) 605-9495 CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this email. Case 1:21-cv-02063-CNS-MEH Document 203-4 Filed 03/16/23 USDC Colorado Page 6 of 6