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]
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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
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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.
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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
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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
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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].
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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).
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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.
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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
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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.
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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.
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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.”)).
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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.
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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
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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.
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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