HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 223 - Open's Discovery Brief
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 21-cv-02063-CNS-SP
CITY OF FORT COLLINS,
Plaintiff/Counterclaim Defendant,
v.
OPEN INTERNATIONAL, LLC
Defendant/Counterclaim Plaintiff,
and
OPEN INVESTMENTS, LLC,
Defendant.
OPEN’S DISCOVERY REPORT
Case No. 1:21-cv-02063-CNS-SP Document 223 filed 05/17/23 USDC Colorado pg 1 of 6
Open International, LLC (“Open”) served a notice of default on the City of Fort Collins
(the “City”) on May 19, 2021 citing breaches of the City’s contract with Open for a customer-
information system (“CIS”). In response, the City terminated the contract and sued Open. Open
countersued and now seeks to compel full responses to its Requests for Production 22–24 and
Interrogatory 27 that are critical to its counterclaim. Specifically, Open must rebut a late-pleaded
affirmative defense by which the City aims to limit Open’s damages to a tiny pool of funds the
City claims are still available for Open. Public records show the City appropriated funds to cover
Open’s full contract, though, and suggest the City—hoping to become judgment-proof—spent
those funds on other vendors in violation of the appropriations laws that underly its new defense.
The Court has twice ruled that Open is entitled to discovery to probe these matters and to meet
the City’s defense. The Court should now compel the City’s compliance.
I. The Court granted Open reasonable discovery on appropriations and expenditures.
Ten weeks after the discovery deadline, the Court granted the City leave to plead a new
affirmative defense limiting Open’s damages to the amount the City appropriated for the project
but has not yet spent.1 See Jan. 26, 2023 Order, ECF No. 191. According to the City, this amount
is $148,517.32, in contrast to Open’s claim for roughly $3.8 million in damages. See City SJ
Mot. at 18, ECF No. 124. Challenging the City’s appropriations affirmative defense is thus
critical to Open’s ability to recover its damages at trial. The Court understood this and ruled that
Open is entitled to reasonable discovery on appropriations and expenditures to counteract any
1 Specifically, the City argues that state and municipal law render unappropriated contract
obligations void. Notably, however, the City never sought to void Open’s contract for lack of
appropriations and first raised an appropriations shortfall more than a year into litigation.
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prejudice caused by the City’s late amendment. See Jan. 26, 2023 Order at 8 (“To the extent
Defendants claim prejudice, and they need discovery on Plaintiff’s assertions concerning
appropriations and expenditures, I will allow it.”). Accordingly, after the City’s amendment
Open promptly served tailored, appropriations-focused discovery—six interrogatories and four
requests for production. See Open’s Requests, Ex. 1. Yet the City refused to consider Open’s
proposed search terms or finance-related custodians2 and asked the Court to block any discovery
on appropriations.3
In response to the City’s challenge, the Court affirmed its prior ruling that Open is
entitled to reasonable appropriations discovery. See Mar. 20, 2023 Hearing Transcript at 22,
Ex. 2 (“[I]f I’ve opened up a new area of truth late in the game, then I want every side to have
the opportunity to make sure that they know all that they need to know in order to prepare for a
trial.”). The Court further confirmed that Open’s discovery requests are proportional to Open’s
need to gather information about appropriations and ordered the City to produce responsive
documents and information by April 10, 2023. See id. at 22, 55–56.
On April 10—two months after Open served its discovery requests—the City produced
only two documents to which Open did not already have access (an email, and a spreadsheet
created for litigation), plus two City Council agenda and four massive, public financial reports. It
also refused to identify the individuals responsible for allocating appropriated funds, as requested
by Open’s Interrogatory 27. See City’s Resp. at 9–10, Ex. 3. Neither this production nor any of
2 The City states that Open proposes 198 search terms, but Open proposes just two Boolean search
phrases, which use words and symbols to narrow the document collection. See Ex. 4.
3 The City acknowledges it has already collected thousands of documents that contain Open’s
proposed search terms but have not yet been produced.
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the City’s other productions give Open the facts it needs to meet the City’s new defense.
II. The documents and information Open seeks are necessary.
Public documents and limited discovery indicate the City’s affirmative defense may be
legally and factually defective.4 First, the City admits paying other vendors approximately $1
million of the amount Ordinance No. 76 (2020) appropriated for Open’s work yet insists the City
cannot pay Open from other funds appropriated for the project, such as the more than $4 million
recently appropriated via Ordinance No. 36 (2023). This inconsistent treatment of comparable
appropriations requires investigation. Second, the City acknowledges Ordinance No. 56 (2018)
appropriated more than $100 million that was available for the project. See City’s Responses at
8. It refuses, however, to provide records about this and tens of millions of dollars of similar
general project appropriations that should provide the ceiling for Open’s recovery. See, e.g., R.L.
Atkins, Inc. v. ARIX, 675 P.2d 336, 336–37 (Colo. App. 1983) (vendor-payment ceiling was full
available appropriation, not portion of appropriation allocated to vendor’s portion of project).
Third, the City’s made-for-litigation spreadsheet asserts the City spent less than $10.6 million on
all project costs through June 2021, but real-time documents show the City “funded” more than
$12 million by that date just to pay Open. See City Accounting Excerpt, Ex. 5.
Open requires discovery to resolve these inconsistencies and to determine the amount of
appropriated funds that were available for the project, how and when those funds were allocated
and spent, whether funds appropriated for Open were lawfully paid to other vendors, and, if so,
why funds recently appropriated for the project could not be used to pay Open for its work.
4 Mr. Swanson’s April 28, 2023 email to chambers provides additional detail on inconsistencies in
the City’s statements and evidence that there are in fact more funds available to pay Open.
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Dated: May 17, 2023 Respectfully submitted,
s/ Anna C. van de Stouwe
Paul D. Swanson
Anna C. Van de Stouwe
Alexander D. White
Alexandria E. Pierce
Holland & Hart LLP
555 17th Street, Suite 3200
Denver, Colorado 80202
Telephone: 303-295-8000
adwhite@hollandhart.com
pdswanson@hollandhart.com
acvandestouwe@hollandhart.com
adwhite@hollandhart.com
aepierce@hollandhart.com
Attorneys for Defendants Open International, LLC
and Open Investments, LLC
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CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of May, 2023, the foregoing was electronically filed
with the Clerk of Court using the Court’s electronic filing system and that a copy of the
foregoing was sent to all counsel of record via same in compliance with the Federal Rules of
Civil Procedure and the Local Rules of this Court.
s/ Anna C. van de Stouwe
21482882
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EXHIBIT 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 2021-cv-02063
CITY OF FORT COLLINS,
Plaintiff and Counterclaim-Defendant
vs.
OPEN INTERNATIONAL, LLC, and
OPEN INVESTMENTS, LLC
Defendants and Counterclaim-Plaintiff.
OPEN’S FIFTH SET OF DISCOVERY REQUESTS TO PLAINTIFF
Defendants and Counterclaim-Plaintiff Open International, LLC and Open Investments,
LLC (“Open”) by and through their attorneys of record, Holland & Hart, LLP serve the following
Requests for Production and Interrogatories (collectively, the “Discovery Requests” or
“Requests”), pursuant to Fed. R. Civ. P. 26, 33, and 34 and the Court’s January 26, 2023 Order
(Dkt. 191 at 8), on Plaintiff and Counterclaim-Defendant City of Fort Collins (“City”). Please
submit written answers or responses to the following Requests, within 30 days, to the law offices
of Holland & Hart, LLP, c/o Paul Swanson, 555 17th St. #3200, Denver, CO 80202.
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DEFINITIONS AND INSTRUCTIONS
1. These Definitions and Instructions and the Rules set forth in Fed. R. Civ. P. 26 to
37 apply throughout these Discovery Requests.
2. The singular of any word is intended to include the plural and vice versa.
3. “To allocate” or “allocation” means to earmark, set aside, designate, specify,
transfer, or segregate funds for specific purposes or particular vendors.
4. “And,” “or” and “and/or” shall be construed conjunctively or disjunctively,
whichever makes the Discovery Requests more inclusive.
5. “Any” or “each” shall be construed to include and encompass “all.”
6. “City” means Plaintiff City of Fort Collins in all capacities, as well as any agents,
attorneys, advisors, representatives, employees, and anyone else acting on behalf of City of Fort
Collins.
7. “Communicate(s)” or “Communication” means every manner or method of
disclosure, transfer, or exchange of information, business communication (including solicitations
or offers to perform services) and every such disclosure, transfer, or exchange of information,
whether orally or in a Document, and whether face-to -face, by telephone, mail, electronic mail,
wire, telex, telecopy, personal delivery, or otherwise.
8. “Complaint” means the Complaint and Jury Demand filed in this matter on July 2,
2021.
9. “Concern,” “concerning,” “related to,” or “relating to” are used in their broadest
sense and mean to discuss, involve, reflect, address, consist of, refer to, describe, analyze,
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represent, constitute, mention, emanate from, be directed at, or in any way pertain, in whole or in
part, to the subject referenced subject matter.
10. “Document(s)” shall be used in its customary broadest sense pursuant to Fed. R.
Civ. P. 26, 33 and 34, and includes, without limitation, all originals, drafts, and non-identical
copies of written or recorded matter, including inf ormation contained in computer storage, cloud
storage, electronic mail and attachments, text messages, instant message or online-chat
communications, all other electronically stored information, books, notebooks, pamphlets,
periodicals, letters, reports, m emoranda, handwritten notes, notations, marginalia, messages,
telegrams, wires, cables, records, studies, analyses, summaries, magazines, booklets, circulars,
catalogs, bulletins, instructions, operating or maintenance manuals, operating or product
specifications, fabrications sheets, calendars, daytimers, notes or records of meetings, notices,
purchase orders, bills, ledgers, checks, tabulations, questionnaires, surveys, drawings, sketches,
blueprints, flow sheets, working papers, charts, graphs, indices, tapes, agreements, releases,
appraisals, valuations, vouchers, reports, estimates, opinions, financial statements, accounting
records, income statements, photographs, records of sale, correspondence, electronic or other
transcription or tapings of or notes pertaining to telephone or personal conversations or
conferences, tape records, electromagnetic recordings, microfilms, CD ROMs, videotapes or
cassettes, films, movies, computer printouts, or any other medium, however produced or
reproduced (including computer -stored or -generated data, together with instructions or programs
necessary to search and retrieve such data), and shall include all attachments to or enclosures
with any requested item.
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11. “Including” means including but not limited to. “Including” is not intended to
exclude unenumerated items that reasonably fall within the category that the enumerated items
illustrate.
12. The “MPSA” refers to the August 9, 2018 Master Professional Services
Agreement between the City and Open and all contractual documents incorporated thereby.
13. The “Project” means the City’s efforts, starting in late 2017, to obtain and
implement a solution(s) for the billing and related operational-support needs of the City’s
utilities and broadband service offerings, which includes the City’s work with Open under the
MPSA as well as work by the City independently and with third parties to obtain such a
solution(s) prior to and after the City’s work with Open.
14. The “RFP” means the Request for Proposal 8697 referenced in Paragraphs 20 and
21 of the Complaint.
15. “You” and “your” refers to “City,” as defined above.
INSTRUCTIONS
1. In responding to these Discovery Requests, please include such information and
Documents that are within the possession, custody, or control of Plaintiffs, including information
and Documents within the possession, custody, or control of Plaintiffs’ personnel, attorneys,
consultants, representatives, banks, and other agents or associates.
2. Each of the Discovery Requests should be construed independently, and no
Discovery Request should be construed as a limitation on any other Discovery Request.
3. Nothing in these Discovery Requests is intended to be, or shall be construed as, an
admission by Open.
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4. If you object to or otherwise refuse to answer any portion of a Discovery Request,
state the objection or reason for such refusal and provide all information called for by that
portion of the Discovery Request to which you do not object or that you do not decline to
answer.
5. If you cannot answer any particular Discovery Request or portion thereof based
upon a lack of knowledge, answer the Discovery Request to the best of your ability and:
a. identify any Documents which might contain information relevant to the
answer sought; and
b. identify any person who may have knowledge of information relevant to
the answers sought.
6. If you object to a Discovery Request on the grounds that providing a response is
premature in light of the present state of discovery, so indicate and respond to such Discovery
Request to the best of your ability in view of the present state of discovery. Upon completion of
the discovery needed to answer such Discovery Request or upon completion of discovery in this
action, whichever is earlier, supplement your response to such Discovery Request consistent with
the duties imposed by Fed. R. Civ. P. 26(e). If you become aware of additional information or
Documents responsive to these Discovery Requests after your initial response, please supplement
your response accordingly.
7. If you object to a Discovery Request, or portion thereof, on the grounds that it
seeks privileged information or information subject to an immunity from discovery, provide a
privilege log consistent with Rule 26(b)(5)(A).
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8. In accordance with Fed. R. Civ. P. 34(b)(2)(E), please produce Documents in the
same folders or other organizational structure in which they are maintained.
9. Please produce electronic Documents as single -page TIFF images with document-
level extracted text (.txt), Opticon (.opt), and Relativity/Concordance (.dat) load files, including
the following metadata, where available: Bates ranges (e.g., begdoc, enddoc, begattach,
endattach), production volume, title, custodian, page count, attachment count, logical path, file
extension, file size, author, last saved by, from, to, cc, bcc, subject, date created, time created,
date last modified, time last modified, last modified by, date sent, time sent, date received, time
received, application name, file name, file extension, file size, MD5Hash, confidentiality, text
path, native path, attachment names (i.e., all parent-child metadata), appointment start,
appointment end, message ID, and message thread ID.
10. If a Document does not contain extractable text, please provide OCR for that
Document.
11. Please provide spreadsheets and multimedia files in native format with a single-
page placeholder referencing the native file with a Bates stamp for the file.
REQUESTS FOR PRODUCTION
Request for Production No. 22:
Please produce all documents and communications concerning the City’s appropriations
and budget for the Project. The relevant time period for this request is July 1, 2017 to the present
date.
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Request for Production No. 23:
Please produce all documents and communications concerning the City’s Allocation and
spending of funds that were appropriated for the Project. The relevant time period for this
request is July 1, 2017 to the present date.
Request for Production No. 24:
Please produce all documents and communications concerning the City’s payments to
vendors for the Project, other than payments to Open. The relevant time period for this request is
August 1, 2018 to the present date.
INTERROGATORIES
Interrogatory No. 24:
Please identify each City ordinance or other authorization—by name, date, and the
authorizing individual(s)—that concerns City appropriation of funds related to the Project and
the amount the City contends was appropriated for the Project by each such ordinance or other
authorization .
Interrogatory No. 25:
Please explain the basis for the City’s contention that only $2,362,892 of the
$115,356,991 appropriated for broadband c onstruction in City Ordinance 56 (2018) was
available for the Project, including by identifying any provisions of that ordinance, or provisions
of any other documents, that the City relies on in support of that contention.
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Interrogatory No. 26:
Please identify the City ordinance, other authorization, or any other basis upon which
funds were appropriated or Allocated to pay Open in connection with Project Change Request
29, including any documents that reflect that appropriation or Allocation .
Interrogatory No. 27:
Please identify each City individual involved in appropriating and Allocating funds for
and within the Project, and their role concerning such appropriations and Allocations.
Interrogatory No. 28:
Please explain what happened to the $1,900,000 appropriated by City Ordinance No. 76
(2020), which the City claims has been spent, including when, how, to whom, and for what
purpose those funds were spent and the identity(ies) of any “member of the governing body” of
the City or “officer, employee, or agent” of the City and its agencies—as those quoted terms are
used in C.R.S. § 29-1-115—who paid or authorized the payment of those funds to any entity
other than Open.
Interrogatory No. 29:
For all payments to vendors for the Project in calendar year 2021, please identify the
amount of payment, the date, the recipient, and the purpose.
Dated: February 14 , 2022.
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Respectfully submitted,
/s/ Anna van de Stouwe
Paul D. Swanson
Alexander D. White
Anna C. Van de Stouwe
Alexandria E. Pierce
HOLLAND & HART LLP
555 17th Street, Suite 3200
Denver, CO 80202
Ph: (303) 295-8 000
pdswanson@hollandhart.com
adwhite@hollandhart.com
acvandestouwe@hollandhart.com
aepierce@hollandhart.com
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CERTIFICATE OF SERVICE
I hereby certify that on February 14, 2023, I caused the forgoing to be served via email
on:
Case Collard
Andrea Ahn Wechter
Maral J. Shoaei
DORSEY & WHITNEY LLP
1400 Wewatta Street, Suite 400
Denver, CO 80202
(303) 629-3400
collard.case@dorsey.com
wechter.andrea@dorsey.com
shoaei.maral@dorsey.com
/s/ Anna van de Stouwe
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EXHIBIT 2
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PATTERSON TRANSCRIPTION COMPANY
scheduling@pattersontranscription.com
1
1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
2
Case No. 21-cv-2063-CNS-MEH
3 ___________________________________________________________________
4 CITY OF FORT COLLINS,
5 Plaintiff & Counter Defendant,
6 vs.
7 OPEN INTERNATIONAL, LLC, et al.,
8 Defendants & Counter Claimant.
___________________________________________________________________
9 Proceedings before MICHAEL E. HEGARTY, United States
10 Magistrate Judge, United States District Court for the
11 District of Colorado, commencing at 1:23 p.m., March 20,
12 2023, in the United States Courthouse, Denver, Colorado.
13 ___________________________________________________________________
14 WHEREUPON, THE ELECTRONICALLY RECORDED PROCEEDINGS ARE
15 HEREIN TYPOGRAPHICALLY TRANSCRIBED. . .
16 ___________________________________________________________________
17 APPEARANCES
18 MARAL SHOAEI and ANDREA WECHTER, Attorneys at Law,
19 appearing for the Plaintiff & Counter Defendant.
20 PAUL SWANSON and ANNA van de STOUWE, Attorneys at
21 Law, appearing Defendants & Counter Claimants.
22 ___________________________________________________________________
23 DISCOVERY CONFERENCE
24
25
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1 P R O C E E D I N G S
2 (Whereupon, the within electronically recorded
3 proceedings are herein transcribed, pursuant to order of
4 counsel.)
5 THE COURT: Case Number 21-cv-2063, City of Fort
6 Collins and Open International, LLC. vs. -- vs. Open
7 International, LLC. and Open Investments, LLC. Make your
8 appearances, please.
9 MS. SHOAEI: Good afternoon, Your Honor.
10 Maral Shoaei and Andrea Wechter on behalf of the
11 City of Fort Collins.
12 MR. SWANSON: And good afternoon, Your Honor.
13 Paul Swanson and Anna van de Stouwe from Holland & Hart on
14 behalf of the Open parties.
15 THE COURT: Trying to do another matter that was
16 supposed to have started at 1:00. We're waiting for a pro
17 se litigant to call in, so I might have to interrupt if he
18 does call.
19 All right. So I think, you know, we're not ripe
20 on the Special Master -- actually, there is no Special
21 Master. It's just a Master, right? I don't think the word
22 "special" is even used in the rules, but we all do that.
23 That's not ripe. Is everybody agreed on that?
24 MR. SWANSON: And why is that, Judge? I --
25 THE COURT: The order -- the motion for order to
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1 adopt --
2 MR. SWANSON: Uh-huh.
3 THE COURT: -- well, there's no reply. Are you --
4 are we willing to forego a reply?
5 MR. SWANSON: Your Honor, we had understood -- and
6 I'm sorry, I'll stand -- we had understood from your order,
7 I think it was last week --
8 THE COURT: Yeah, I wanted to talk about that, but
9 yeah, I don't -- I also don't want to interrupt anybody's
10 expectations if you do want a written.
11 MR. SWANSON: Understood.
12 We always welcome a chance to say more, Judge, but
13 we did get a chance to make our points about the objections
14 in our email to you --
15 THE COURT: Okay.
16 MR. SWANSON: -- and I think that because we
17 cannot go through and look at each document,
18 document-by-document, there's probably not a ton of value
19 for us to add by giving you a reply brief at the same time.
20 We are, of course, more than happy to do that.
21 THE COURT: Okay. Yeah, I think I'm -- I'm fine
22 with not.
23 Do you want to address the discovery issues first,
24 or not?
25 MR. SWANSON: Sure.
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1 THE COURT: Yeah, let's go ahead.
2 MR. SWANSON: Okay.
3 MS. SHOAEI: Yes, Your Honor, and I believe I'll
4 step in here is because the City is the first -- well, we
5 requested the conference; if that's okay?
6 THE COURT: Yeah.
7 MS. SHOAEI: Thank you, Your Honor. Would you
8 like me to stand up here, would you like me to sit?
9 THE COURT: Whatever's more comfortable for you.
10 Chris, have them bring the Special Master's
11 materials off of my desk, okay?
12 CHRIS: Yeah.
13 THE COURT: Go ahead.
14 MS. SHOAEI: Okay. Thank you, Your Honor.
15 So with respect to the discovery requests is why
16 -- that's why we're originally here today, Your Honor, is we
17 were -- the City of Fort Collins requested -- raised the
18 issue based off of the defendants, Open, serving six
19 interrogatories and three requests for production after Your
20 Honor's January 26, 2023 order on the -- regarding the
21 City's motion to amend regarding the negligent
22 misrepresentation claim against Open and its appropriations
23 defense regarding Open's counterclaims.
24 In your order, Your Honor indicated that the Court
25 would allow additional discovery if the defendants claim
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1 prejudice and they need discovery on plaintiff's assertions,
2 and that, Your Honor, is based off of your January 26 order
3 here.
4 And there, in that order, they also -- before
5 conferring on the discovery available, or what they needed,
6 defendants served these discovery requests.
7 As an initial matter, Your Honor, the
8 interrogatories are already four more than the parties
9 agreed to, which was the 25.
10 And then, more importantly, let's -- if we can
11 move to the arguments on whether they're prejudiced, or if
12 they needed it. And with here -- and this is -- just so I
13 can clarify, this is only with respect to appropriations.
14 And so with respect to Open's claim of prejudice,
15 that is just -- it is the City's position that this -- that
16 Open is not prejudiced.
17 Appropriations is referenced in every -- in the
18 parties' various agreements, including the Master
19 Professional Services Agreement, and -- so in other words --
20 and that was entered into 2018, so have known about the
21 appropriations for over four years, Mr. Parrott, which is --
22 Mr. Hernando Parrott, which is Open's president and 30(b)(6)
23 deponent, testified on September 22, 2022, that he
24 understood the appropriations were an issue, that -- and
25 appropriations was a factor in here. And then we submitted
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1 those to Your Honor with our March 16 submission to the
2 Court.
3 THE COURT: So what, exactly, did he say about
4 what he understood the appropriations issue to be?
5 MS. SHOAEI: Absolutely, Your Honor.
6 So if we look at our March 16th submission, if we
7 look at the first category, he says, "I think there is
8 something here that they input, right? The funding for
9 pavement -- for some pavement that's subject to the
10 appropriation funds by the city council. That is the best
11 that I can recall."
12 "Question: That they -- some of the pavements
13 were subject to appropriation of funds by the City Council?
14 "Answer: Yeah.
15 Then we go on -- and so then, a few minutes later:
16 "Question: So I want to talk about, now, the
17 appropriation point that you pointed out. Open agreed to
18 that provision. What is your understanding of that
19 provision?
20 "Answer: Understanding is that -- is that the
21 City had to be very formal on this, and they -- I think they
22 did the same thing in the contract, that there is some legal
23 wording that they have to put there because, if not, they
24 will be in trouble signing this. So we trust the City.
25 "Question: Okay. So it's your understanding that
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1 the appropriation language enables the City to be able to
2 actually make a payment to Open that it commits in the
3 contract?
4 "Answer: Yeah. That is what we agreed upon
5 there.
6 Further -- a little bit later on, Your Honor:
7 "Question: Okay. And so Open agreed to this
8 appropriation language, as well as in the NPSA under Section
9 13.4.
10 "Answer: Yeah, yes, we did.
11 "Question: And did you understand, at the time
12 you entered the NPSA and entered into the first amendment,
13 that without the appropriation language in there, the City
14 may not be able to legally make payment to Open for the
15 services in the contract, or the -- in the NPSA, or the
16 first amendment?
17 "Answer: Yes. That is what they -- they
18 explained to us and --
19 "Question: Okay.
20 "Answer: We discussed it with our lawyers. Our
21 lawyer agreed to that, and so we signed the contract."
22 And that's just one deposition, Your Honor.
23 That's one of one day of depositions.
24 And then, Your Honor, we also -- the City
25 addressed the appropriations defense in its discovery
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1 responses about a month prior to that even, on August 4,
2 2022.
3 And then, on October 3, 2022, the City provided a
4 detailed letter with several exhibits -- Exhibits A through
5 G -- where it offered -- it provided more information on the
6 appropriations, including the ordinances -- the applicable
7 ordinances, as well as a chart of all of the funds and how
8 they have been distributed.
9 In that offer -- excuse me.
10 In that October 3rd letter, at the very bottom --
11 and this was -- if you would like a copy of it, Your Honor,
12 this was Exhibit 3 to our March 16 submission.
13 In that letter, we state: Mr. Paul, on behalf of
14 the City, will be prepared to testify regarding the
15 appropriation and spending of funds related to the project
16 -- excuse me, on October 5, 2022 during the City's corporate
17 deposition. However, should you need more time to consider
18 this information, please let me know and we can discuss a
19 different day or time for Mr. Paul's deposition that works
20 for all parties. And that was on October 3rd, Your Honor.
21 Defendants did not -- decided not to reschedule,
22 or even ask for Mr. Paul's deposition to be rescheduled. In
23 fact, during Mr. Paul's 30(b)(6) deposition, defendants'
24 counsel asked about appropriations in -- during Mr. Paul's
25 deposition. And that was also provided to you, Your Honor,
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1 as part of our March 16 submission with the snippets.
2 Would you like me to read those as well?
3 THE COURT: No, that's okay.
4 MS. SHOAEI: Okay. And Open has -- Open has
5 claimed that it was too late -- that this October 3rd was
6 too late, because it could not serve any discovery requests
7 based off of that letter.
8 Well, Your Honor, I think the first thing is the
9 Court should not put too much weight on that argument,
10 because as Your Honor said during the August 12, 2022
11 conference, the Court was willing to work with the parties
12 if we needed more time to work on discovery.
13 That -- Open didn't bring that up to us as an
14 issue: That they wanted to raise discovery, until these
15 issues were raised.
16 And then, most importantly there, Your Honor, they
17 could have sought additional discovery. In between October
18 26th and October 28th -- excuse me -- the parties discussed
19 additional depositions, specifically regarding Open's
20 claimed damages where the City wanted an additional
21 deposition of Mr. Parrott because Open had just disclosed an
22 updated chart of damages.
23 Instead of requesting additional depositions, or
24 additional discovery regarding appropriations at that time,
25 which were more than three weeks, now, after the October 3rd
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1 letter that Open claims were served too late, Open did not
2 seek additional discovery on appropriations, but rather was
3 -- seeks additional deposition of TMG -- of a representative
4 of TMG, which is the consultant for the City. And the City
5 and Open agreed to those depositions and went forward. At
6 no time during that time did Open ask for additional
7 discovery, or for additional deposition.
8 So, in -- so Your Honor, the City's position is
9 that they're not prejudiced.
10 Relatedly, we don't believe that Open needs
11 additional discovery. The City has already produced over
12 44,000 documents in this litigation, and Open's counsel has
13 claimed that the October 3rd letter that we submitted was
14 the first time we've ever disclosed anything about
15 appropriations. That's just incorrect.
16 The City has produced hundreds of documents that
17 hit on the word, just "appropriations" or "appropriate,"
18 even as early as a November 2021, and as -- even as May of
19 2022. So months before the close of discovery and months
20 before the October 3, 2022 letter.
21 Further, during the conferral with Open's counsel,
22 Open admitted that they needed discovery to determine the
23 statutory basis, or the reasoning behind the City's actions.
24 And, again, if we look at Your Honor's January 26,
25 2023 order, that's even an issue that you discuss, because
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1 they -- Open contends that a certain statutory framework
2 applies, compared to another statutory basis. And you
3 state, the parties disagree as to whether the statute
4 applies under these circumstances. Again, this -- that
5 dispute is better left to a dispositive motion.
6 In other words, whether a statute applies, or
7 there's a Rule that applies, that is -- that's a legal
8 argument; that's not a discovery issue. And that's a legal
9 issue that Open's counsel should pursue.
10 And in any event, Open already has the
11 information. They're based off -- the appropriated amounts
12 are based off of ordinances that are freely open to the
13 public and are available at any time, and it's already been
14 produced. And the statute referenced in both Open's and the
15 City's summary of judgment briefings have already been
16 discussed in dispositive motions.
17 So I'm not truly sure what other discovery there
18 is.
19 And then, further, they -- Open claims that it
20 needs discovery in order to determine how and the City was
21 able to pay third parties.
22 If we look at our October 3rd letter, in Exhibit G
23 to our October 3rd letter, Your Honor, which was Exhibit 3-2
24 our -- in March 16th submission, there's a chart. It is two
25 charts, actually, that it -- break down the entity, the
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1 vendor, the amount, the date, the totals, and then how much
2 they were paid. Open had this information, could have asked
3 about it, chose not to.
4 And I understand that Open's position is that they
5 didn't have time to digest this information, but it could
6 have -- again, could have rescheduled the deposition for --
7 of Mr. Paul regarding the appropriations, or it could have
8 just simply -- just asked him about this chart and what it
9 represented, and what it meant, and who these people were --
10 who these vendors were, and -- but they chose not to.
11 THE COURT: So wait. The totality of discovery
12 that they're seeking arising solely from granting the
13 amendment is what?
14 MS. SHOAEI: Is six interrogatory requests and
15 three requests for production and at least one deposition.
16 THE COURT: Okay.
17 MS. SHOAEI: They have left it open, as they may
18 need more discovery requests and even more depositions.
19 THE COURT: How many depositions have there been
20 in this case?
21 MS. SHOAEI: I believe 24 or 23, and maybe Mr. --
22 excuse me, Mr. Swanson can correct me if that's an
23 inaccurate number.
24 THE COURT: So I'm wondering why you're fighting
25 so hard on this.
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1 MS. SHOAEI: It's because, Your Honor, we've
2 already -- we've already produced hundreds of documents,
3 we've already -- they've had the opportunity to ask about
4 appropriations and simply chose not to.
5 THE COURT: Right. But what I said -- and I want
6 to keep my word -- is not if the defendants establish
7 prejudice, if they prove prejudice. I said: To the extent
8 defendants claim prejudice and they need discovery, I would
9 allow it.
10 MS. SHOAEI: Sure, but --
11 THE COURT: That's what I said in the order. I'm
12 not backing down on that order.
13 So now, it merely -- I merely would interpret
14 whether the discovery they are seeking would logically fit
15 within the parameters of what I allowed, and that is on
16 the -- on the defense assertions of prejudice.
17 So if they -- if all the discovery goes explicitly
18 to the expanded claims that I permit you to have, then I
19 think that's the end of the question.
20 MS. SHOAEI: Well, Your Honor, I believe the
21 requests are only related to appropriations too. So it's
22 not even about the negligent misrepresentation claim. We're
23 only relating to -- discussing the appropriations --
24 THE COURT: Right.
25 MS. SHOAEI: -- issues here.
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1 THE COURT: Okay.
2 MS. SHOAEI: And for us, it's -- we even offered,
3 during our conferral, to -- we understand Your Honor's
4 order. And to be reasonable, we offered to -- that we would
5 respond to the discovery requests, but then not this
6 open-ended you get another deposition, and then maybe
7 another deposition, or maybe another discovery request.
8 THE COURT: Well, we won't make it open-ended, and
9 the case is old already-ish, so things need to be wrapping
10 up.
11 But, you know, it's -- I did that because it's not
12 every lawyer who would understand the sort of limitations
13 that a government entity has if you've never operated in
14 that space before. It's not intuitive that, Hey, you're
15 actually going to refuse to pay us because you can't get the
16 money appropriated? That doesn't sound right.
17 MS. SHOAEI: Sure.
18 THE COURT: So it does sound right to me, because
19 I've been representing government for 30 years, and I know
20 that even to spend more money than you're budgeted could be
21 a crime in the United States government. If you allocate
22 money that hasn't been appropriated, it actually can be a
23 crime. So I was very sensitive to that when I represented
24 the government.
25 But it's not that self-evident from a -- sort of a
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1 private corporation's viewpoint when it's, you know, trying
2 to provide services and the person to whom it's providing
3 services just happens to be a government.
4 So that's why I thought, Okay, I'm going to allow
5 this fairly late in the game, but they get to probe that a
6 little bit.
7 Now, I wouldn't think there's much to do, because
8 it's -- again, you and I know -- I don't know how long
9 you've represented the City, or whether you've ever
10 represented a City before, have you?
11 MS. SHOAEI: I did actually work for the Denver
12 City Attorney's Office (indiscernible) --
13 THE COURT: So you know exactly what it means to
14 operate within a budget. I mean, in the Denver City
15 Attorney's Office, I can't possibly settle a case for more
16 than $5,000 unless they take it to the City Council. They
17 won't even talk about it, because that's just the law.
18 So that's clear to you and me. Maybe not so clear
19 to others who haven't been there. So --
20 MS. SHOAEI: I will say, Your Honor, in our August
21 6, 2022, discovery responses, we explicitly said the City
22 was not permitted to spend funds in excess of amounts
23 appropriated in the adopted budget and payments required
24 under the NPSA were subject to annual appropriation by the
25 City of Fort Collins -- by the Fort Collins City Council for
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1 Sections 13.4 of the NPSA, and that was in response to RFA
2 Number 2 by the City.
3 MR. SWANSON: And, Judge, at this point, I do want
4 to clarify one misconception that's implicit in Ms. Shoaei's
5 arguments to you.
6 Open admitted, in their corporate deposition, they
7 knew about the provision in the contract that says the City
8 may not be able to continue this contract in fiscal years
9 for which appropriations haven't been made, but that said
10 nothing about limiting damages when appropriations had
11 already been made.
12 The City never came to Open and said, Oh, hey, we
13 haven't made appropriations so we have to stop the contract.
14 That's what the contract says the City could do.
15 Instead, the City said, Oh, wait. Open, you're
16 giving us a notice of termination? We're going to give you
17 a notice of termination. It never mentioned appropriations.
18 Open followed the City's appropriations acts. The
19 money for this project was appropriated. The problem is
20 that even when those dollars were appropriated specifically
21 for Open, not even for the project generally, those dollars
22 ended up being spent on other contractors.
23 So discovery, in large part, is figuring out how
24 did the City appropriate the funds for this project, keep it
25 going for multiple fiscal years --
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1 THE COURT: Right.
2 MR. SWANSON: -- and then throw up its hands and
3 say, Oop, we're judgment proof.
4 THE COURT: Or whether it's also legal to take a
5 -- money appropriated for one purpose and use it for another
6 purpose.
7 MR. SWANSON: And one of our discovery requests is
8 aimed at understanding who these individuals are who made
9 allocations that we think violated an appropriation.
10 THE COURT: Right.
11 MR. SWANSON: And so, we think that not only is
12 there discovery to be done here, but it's material to our
13 claims. Our claims get severely discounted otherwise.
14 THE COURT: Right. Material to whether -- what
15 damages are available to you?
16 MR. SWANSON: Exactly.
17 THE COURT: Because if you -- maybe you believe if
18 you can prove that there was malfeasance in the expenditure
19 of appropriated funds for this contract by using them for
20 other purposes, that money gets wrapped back in in a
21 potential damages award. I assume that's what you're
22 thinking.
23 MR. SWANSON: There are statutory provisions that
24 permit a Court to force a damages award in certain
25 circumstances. There are also appropriations here that are
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1 much larger than the City accounts for in its spreadsheet
2 that it shared right before the 30(b)(6) deposition.
3 THE COURT: Right.
4 MR. SWANSON: And State law says it's the total of
5 appropriations that gets used as the cap. It's not how much
6 gets allocated at some lower level that's a cap.
7 So Open was operating in good faith, based on the
8 allocation -- or excuse me, the appropriations that the City
9 said it made, that the City Council approved.
10 And so we think we need to be able to probe these
11 things in discovery so that we can make a reasoned
12 presentation to the Court, and then, if it's appropriate,
13 you know, a reasoned presentation about a factual dispute
14 that might remain.
15 THE COURT: What's the current state of the
16 discovery deadline?
17 MS. SHOAEI: It expired on November 14th, Your
18 Honor.
19 THE COURT: All right. So this is just to wrap up
20 discovery? There's nothing else going on?
21 MS. SHOAEI: That is correct, Your Honor. The
22 dispositive motions have already been filed and fully
23 briefed.
24 THE COURT: Yes. So are you prepared for this to
25 be your only round?
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1 MR. SWANSON: We wrote the discovery so that it
2 would be our only round. Now, the City said, We'll only
3 agree to do it if you will not take any depositions and will
4 not come back with other written discovery. And I just
5 couldn't make that deal, because --
6 THE COURT: Well, I don't --
7 MR. SWANSON: -- if something comes up --
8 THE COURT: -- disagree with that.
9 MR. SWANSON: Yeah.
10 THE COURT: You probably understand it would have
11 to be compelling or beyond.
12 MR. SWANSON: Absolutely.
13 THE COURT: All right.
14 MR. SWANSON: But I think one deposition -- and
15 I'm sorry if I interrupted, Your Honor.
16 THE COURT: What's the deposition?
17 MR. SWANSON: I would imagine we would ask to
18 reopen the 30(b)(6) with a corporate designee for
19 appropriation and spending allocation issues.
20 THE COURT: I think that's wise.
21 MR. SWANSON: Yeah.
22 THE COURT: All right. I just don't see a problem
23 with it. So --
24 MS. SHOAEI: But, Your Honor, may I -- if we --
25 THE COURT: Go ahead.
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1 MS. SHOAEI: -- thank you so much. If you're
2 going to grant this, can we limit the deposition, so that
3 way it's not a seven-hour -- maybe 90 minutes? It's a very
4 -- as Mr. Swanson said, it's about appropriations and
5 figuring out these questions. Can't imagine it's going to
6 take them very long.
7 THE COURT: So it depends. So on a
8 proportionality analysis, it -- remind me, in your
9 perception, what is the level of damages that might be gone
10 because of what the City says is an appropriations issue?
11 MR. SWANSON: The City is, I believe, arguing that
12 about 95 percent of our damages go away. $3.6 million or so
13 goes away and leaves us with $100,000 to cover both. I
14 believe that's their summary judgment argument.
15 THE COURT: Which you spent multiples on
16 already --
17 MS. SHOAEI: That's --
18 THE COURT: -- in this litigation?
19 MR. SWANSON: Right.
20 MS. SHOAEI: That's slightly inaccurate, Your
21 Honor.
22 THE COURT: Okay.
23 MS. SHOAEI: Because there's also a retainage
24 included in this amount. That's, like, I think, about $1.4
25 million, so that's not exactly accurate -- the $100,000.
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1 THE COURT: Okay. But if it's in the millions of
2 dollars, then you don't dispute that? What they're claiming
3 and what --
4 MS. SHOAEI: Yes, that's correct.
5 THE COURT: All right. I mean, I --
6 MS. SHOAEI: And just because -- Your Honor,
7 they've already -- they -- the same person that they want,
8 they've already asked about appropriations.
9 THE COURT: Well, they can't retread. So if --
10 you know, I can't imagine these defense lawyers would waste
11 time and their clients' money in asking the questions that
12 have already been asked.
13 MR. SWANSON: We --
14 THE COURT: So it has to be new ground and
15 relevant.
16 MR. SWANSON: We --
17 THE COURT: I'm just not willing to limit it to 90
18 additional minutes with a topic that's so important and, you
19 know, there's a goose/gander rule that I always like to
20 apply too. If I'm going to -- I mean, certainly, that's
21 fairly late in the game, even several months. I mean, you
22 filed your motion in November to amend and you just told me
23 on the record that you had the information to do that in
24 September.
25 So --
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1 MS. SHOAEI: October.
2 THE COURT: Well, you said September, I think, in
3 early deposition -- a deposition in September. .
4 But anyway --
5 MS. SHOAEI: Oh, it was a -- there was a dispute,
6 Your Honor, on whether we needed to even, because of whether
7 there was an affirmative defense or not. That was what -- I
8 think, how this issue of appropriations even first came
9 about to be in front of Your Honor.
10 THE COURT: Right. And I just don't want to -- to
11 me, trials are about the truth. And if I've opened up a new
12 area of truth late in the game, then I want every side to
13 have the opportunity to make sure that they know all that
14 they need to know in order to prepare for a trial.
15 So I just can't find six interrogatories, three
16 requests for production, and one supplement to a 30(b)(6) as
17 disproportionate to the needs of the case.
18 So can you estimate, though, how much time you
19 would need on that deposition?
20 MR. SWANSON: It's hard without the documents,
21 because if these reveal some of the inconsistencies we
22 expect, this could get complicated.
23 It -- I'm hesitant to do so, because it will be
24 used against me, but I will say this, Your Honor: We have
25 no interest in wasting time here. We have tried to move
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1 this issue along as quickly as the pleadings have allowed
2 it. And the only -- we only got to touch this issue in
3 terms of what, even are we talking about with appropriations
4 of the prior depositions. So this would be plowing some new
5 ground, but doing it with a real target in mind.
6 THE COURT: Okay. I would allow another half day.
7 MS. SHOAEI: Half day being three-and-a-half
8 hours, Your Honor?
9 THE COURT: Yes.
10 MS. SHOAEI: Okay. Thank you.
11 And are we -- and I understand that Mr. Swanson
12 says they may not know if they need more requests, but are
13 we going to agree that there needs to be some outstanding,
14 compelling reason if they need more additional --
15 THE COURT: I almost said -- I think I said
16 "beyond compelling" --
17 MS. SHOAEI: Okay. Perfect. Thank you.
18 MR. SWANSON: Just -- I'm sorry, Judge.
19 THE COURT: Do you want to -- It's almost clear
20 error not to permit it, right?
21 MR. SWANSON: Do you want to turn to privilege
22 issues, Judge, or --
23 THE COURT: Yeah, that's the only thing that's
24 left?
25 MR. SWANSON: Yeah, I think it is.
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1 From my client's perspective, the City's
2 privileged positions that were at issue in the master's
3 recommendations -- the positions the City ended up taking
4 are out of bounds. We ended up with a Special Master
5 charging the parties over $20,000 to review --
6 THE COURT: Wow.
7 MR. SWANSON: -- hundreds of documents.
8 THE COURT: I would have done it for
9 (indiscernible).
10 MR. SWANSON: Right? You're rethinking your --
11 THE COURT: No. Some day. It's about a
12 year-and-a-half away, I guess. I doubt that I -- what was
13 their hourly -- hourly rate was --
14 MR. SWANSON: I don't recall. I think it was
15 $500.
16 THE COURT: $400-something, wasn't it?
17 MR. SWANSON: $450 - $500.
18 MS. SHOAEI: I think it was $500. I think it was
19 $500.
20 THE COURT: Which is the going rate, honestly.
21 MR. SWANSON: But we challenged over 300
22 documents. She found seven of them were actually
23 privileged. And we've been fighting with the City over this
24 for 10 months.
25 My client, this morning, reminded me of the tens
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1 of thousands, if not over $100,000 they've spent on this
2 issue. And that's prejudicial.
3 We are missing -- these are key documents. If
4 you've reviewed them, Judge, you know. They go to City's
5 admissions of liability. And we didn't get to use them in
6 discovery, because the City pushed back on us. And so we
7 don't know yet what we may need to do with them, but we do
8 know that we've wasted a ton of time, and we've wasted a ton
9 of resources.
10 And it seems like the system can't work if a party
11 can just claim privilege and be found to not really have a
12 good basis for that, and so that's why we put this before
13 the Court. You can make a decision on whether to adopt.
14 But I think, in any event, we're in a position
15 where well over half of these designations were not
16 justified, and so a Rule 37 fees award seems appropriate,
17 and we are concerned that the rest of the City's
18 designations are not reliable.
19 So we would ask you to refer the rest of these to
20 Justice Rice, or to whomever you choose, so that we can make
21 sure that this is all being played straight. And never did
22 I --
23 THE COURT: Sorry, by "refer the rest of these,"
24 what do you mean?
25 MR. SWANSON: Sorry. So the City still has about
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1 900 privilege designations, I believe, and I can't verify
2 that number, that we did not challenge. We focused on what
3 we thought were probably the most fruitful grounds to try to
4 resolve. But never in our wildest imagination did we think
5 that almost all of them were not privileged.
6 And so now, even as we try to be reasonable in
7 what we went and challenged, I can't stand here and say,
8 Yeah, I think that the City's remaining designations are
9 probably valid. And so it -- we are in this difficult spot
10 where I feel like these need to be reviewed by an impartial
11 arbiter.
12 THE COURT: Right. And what principle of law
13 would compel me to do that --
14 MR. SWANSON: So the --
15 THE COURT: -- if you never challenged them?
16 MR. SWANSON: -- the principle would only be that
17 you, as the judge, are presiding over the parties and their
18 lawyers' responsibilities to the Court in making privileged
19 designations. And that when you determine, based on an
20 in-camera review, that those determinations were not valid,
21 it is incumbent to, in some way, force that this process is
22 made -- it -- that it has integrity.
23 And we've cited case law to you, Judge, not from
24 this District, but this is something courts do. If they
25 find that an initial in-camera review reveals a large number
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1 of unprivileged documents, they say, Okay, we're going to
2 need to take a look at the whole thing, I think, just as a
3 matter of exercising your discretion.
4 That makes sense. We don't know what's in those
5 documents. We tried to take the City's word about the
6 privilege assertions, because we thought they're making
7 these calls in good faith. But then to have seven out of
8 300 privileged documents come back, I no longer have that
9 confidence.
10 MS. SHOAEI: Your Honor, may I respond, or did you
11 have questions first that you wanted --
12 THE COURT: No, I will have questions, but I want
13 to go ahead and hear what you have to say.
14 MS. SHOAEI: Thank you, Your Honor.
15 I think, first and foremost, this whole
16 seven-document statement is just inaccurate. And why that
17 is is because one of the fundamental things that we have put
18 in front of Your Honor, and that we've objected to the
19 Special Master recommendation, are regarding the Vanner
20 (phonetic) documents, which, by themselves, are over 70
21 documents for you to reflect on and review, because the Open
22 -- despite Your Honor's statements during the November 7,
23 2022 conference, that the issue of waiver, or the issue of
24 the delivery process privilege was live and not a dead
25 issue, Open continues to say that we waived the delivery
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1 process privilege over and over again.
2 And that -- the Special Master did not even
3 consider the deliver to process privilege and the over 70
4 documents related to Vanner.
5 So just by Mr. Swanson repeating the seven
6 documents over and over again is just inaccurate.
7 And then second, out of the 300 or so documents
8 that Open has: Let's just take off the 70 and I'll just use
9 round numbers for our purposes, but please don't quote them
10 for me on exactness.
11 Let's just take the 230 initial documents
12 remaining from the 300 that Open contends that they raised
13 as -- for the Special Master to review.
14 Out of those 300, maybe 75 to 100 are actually
15 unique documents in the sense that the rest of them are
16 repetitive; they're redundant, and they're various versions
17 of the same document.
18 So to say that, oh, we're -- that the City
19 withheld hundreds and hundreds of documents as being
20 wrongfully privileged, that's just inaccurate.
21 Also in our objection, with respect to the Special
22 Master's recommendations on the TMG documents, we are also
23 contesting -- or raising for your objecting -- rulings on
24 those issues -- on those documents.
25 Also -- excuse me -- on Vanner, we also have four
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1 documents there that we're maintaining that are privileged,
2 that the Special Master -- excuse me, that the Master found
3 to not be, for your review as well.
4 So, I think, just taking out of, just a larger
5 context here, it's not seven documents, and I think that we
6 should try to stay away from that. It's -- it could be
7 hundreds of documents that the City has actually withheld
8 properly under privilege, but we're waiting for Your Honor
9 to review and decide that issue.
10 And then, also, Mr. Swanson referred to the cases
11 that they cite to in their brief for the argument that Your
12 Honor can just review every other privileged communication
13 from -- by the City.
14 In our opposition brief, which is at Docket 203,
15 on pages 19 to 20, we actually differentiate those cases and
16 how those cases are not applicable here. And those are -- I
17 think you should, if you have a chance, Your Honor, to
18 please review how we differentiate the cases that Open has
19 cited to.
20 And also, Your Honor, with respect to this
21 reopening of -- or reviewing all of the documents that the
22 City has withheld under privilege, first of all, I think it
23 just makes -- make -- it's a little silly to make the
24 Special Master, or Your Honor, or some other party, or some
25 other individual, review documents that -- for instance,
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1 that have attorneys in the To:/From: Cc line, especially if
2 it's litigation counsel: Myself, Ms. Wechter, Mr. Collard.
3 Those -- that just seems inappropriate.
4 As I mentioned, there's also a lot of duplicates.
5 Defendants have also never raised a specific reason or issue
6 with the City's other withheld documents. This is going to
7 be the first time they're going to do it, and it's a little
8 bit of a hindsight for them, but it's also hindsight without
9 -- with the mere suspicion.
10 If every Court did that, just because of a
11 suspicion that is not going to be with merit, that would
12 just open up whole floodgates, and then everyone could
13 always argue that a Special Master, or a magistrate judge,
14 or anyone else had to review documents.
15 And here, even then, on the privilege -- other
16 privileged documents that are even not at issue here that
17 Open wants the -- to be rereviewed, haven't even conferred.
18 We have -- there has been no conferral on a
19 document-by-document basis.
20 And Your Honor has specifically mentioned that in
21 previous orders, that if there's issues with documents and
22 privilege, to be a document-by-document conferral. That has
23 not even happened yet.
24 So it's -- to just do a blanket request seems
25 inappropriate. I don't know if you --
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1 MR. SWANSON: I'd like to address -- oh, I'm
2 sorry.
3 THE COURT: Well, let me talk philosophically
4 here.
5 MS. SHOAEI: Uh-huh.
6 THE COURT: So if -- whatever I do with the
7 Master's recommendation, and let's just hypothetically say I
8 adopt it, then that's my decision, obviously, appealable to
9 Judge Sweeney, on the scope of the privileges asserted,
10 right --
11 MS. SHOAEI: On --
12 THE COURT: -- as to the documents that are
13 decided.
14 MS. SHOAEI: As to the documents that are decided
15 that were -- have already been reviewed and decided?
16 THE COURT: Right. So that's a judge's
17 determination on the validity of the assertions of
18 privilege.
19 If, during any lawsuit, a party claims privilege,
20 puts those documents on a privilege log, but then becomes
21 aware that the documents are not privileged, wouldn't they
22 have an obligation -- a self-standing obligation -- on their
23 own to go back and review documents for which it is asserted
24 privilege and rethink that and possibly then produce
25 documents, right?
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1 MS. SHOAEI: That's correct, Your Honor. And --
2 that's -- we actually, already did that.
3 So with respect to TMG, for instance, after your
4 orders back in August of 2022, we produced over 200
5 documents -- or over 250 documents that would be related --
6 that would --
7 THE COURT: But what if I adopt the Master's
8 recommendation here? Wouldn't that prompt you to go back
9 and then rethink some documents of the remaining that
10 haven't been challenged and make an independent decision
11 that those -- we thought they were privileged --
12 MS. SHOAEI: Uh-huh.
13 THE COURT: -- now they're not?
14 MS. SHOAEI: I understand what you're saying, Your
15 Honor, so that's a slightly different issue there.
16 THE COURT: Right.
17 MS. SHOAEI: It's because -- so these two issues
18 that are before you and before the Special Master related to
19 third parties -- so the consultants. So Vanner and TMG
20 Consulting, which were the City's. There's a separate log
21 that the City would peruse of its own documents. So,
22 these --
23 THE COURT: Right.
24 MS. SHOAEI: -- we're talking about different
25 styles of given documents altogether.
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1 THE COURT: Documents that never saw a
2 third-party's eyes?
3 MS. SHOAEI: And correct. Those are three
4 different categories of logs here. And so my understanding
5 is that Open wants to open all three, not just the ones that
6 relate to TMG and Vanner, but even its -- the City's own,
7 like, separate privilege, like, and there's no basis to
8 withhold those -- or excuse me, to review those.
9 MR. SWANSON: Just to clarify though, Judge, we
10 did challenge those. For whatever reason, the Special
11 Master didn't review them, even though they were referred to
12 her for review. The City's own internal --
13 THE COURT: How many of those?
14 MR. SWANSON: I think we challenged a few dozen,
15 and they just weren't reviewed at all. So as part of our
16 motion, we ask that those be referred to the Special Master
17 -- to the Master, excuse me, and then the -- that these
18 additional documents be referred.
19 And Judge, I appreciate the suggestion you're
20 making. If the City gets these determinations about
21 privilege, it can go back and rethink its privilege
22 assertions.
23 Respectfully, you gave them that chance in August
24 when you issued two detailed orders, 20 pages each,
25 explaining here are the privilege rules, and I need to see
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1 an attorney mental impression strategy opinion, and still
2 the City withheld these several hundred documents that at
3 least the Special Master had said they are not privileged.
4 So I -- at the risk of having this process go on
5 ad nauseam, our view is, the City didn't do this right.
6 They should bare the responsibility for that, but let's get
7 this done. And that's -- that's why we request a referral
8 to -- to a master for ultimate review of those other
9 documents.
10 MS. SHOAEI: Again, Your Honor, I think we should
11 reevaluate on the several-hundred comment here.
12 A huge part of this with you -- in front of Your
13 Honor is regarding the Vanner (ph) documents and with
14 respect to -- and their deliberative process privilege and
15 the attorney/client privilege, and with respect to the work
16 product doctrine, it actually is not just attorney mental
17 impressions, it's because TMG is the consultant working on
18 behalf of the City. So that's not just attorney mental
19 impressions. And I think that's where we have -- we have
20 differing views with Open's counsel.
21 But I think fundamentally, Open has not shown any
22 reason why any of our privilege assertions have not been
23 substantially justified. In fact, it would probably be the
24 opposite, we have substantially justified our privilege with
25 respect to deliberative process privilege and it not being
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1 waived based off Your Honor's own statements. And so for
2 Open to continue saying that we raised it, I would say
3 they're the ones that are unsubstantially justified for keep
4 raising this issue.
5 And then the --
6 THE COURT: So shortsightedly, you know, I gave
7 up -- I gave up the documents so I don't have them anymore.
8 MS. SHOAEI: I have the flash drive, Your Honor,
9 of all the contested -- would you like me to give it to you?
10 THE COURT: I think so.
11 MS. SHOAEI: May I approach?
12 THE COURT: Yes. Do you need to look at it first?
13 MR. SWANSON: I don't think I can.
14 THE COURT: Oh, sorry.
15 MR. SWANSON: I would love --
16 MS. SHOAEI: If he wants to.
17 MR. SWANSON: I would love to, Judge, but, yeah,
18 not just yet.
19 On the point of waiver, Judge, I just want to
20 emphasize we are going by what you said in your August
21 ruling, which was that by failing to adequately brief the
22 issue, the City has waived any argument that the
23 deliberative process privilege protects the subject
24 documents. That's all those Vanner documents that the City
25 went and logged.
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1 And then that's what the Master concluded when she
2 reviewed all of the documents. She said, "Oh, this is
3 waived, so I can't look at it without undoing Judge
4 Hegarty's orders."
5 So obviously, Judge, you are the ultimate arbiter
6 of what you meant and what you are rulings are and I
7 wouldn't purport to put your own words, you know, to say
8 what they mean, but this is what we understood them to mean.
9 And -- and so I guess I take a little umbrage at the notion
10 that we're trying to pull a fast one here, or the idea that
11 the City's positions have been showed to be substantially
12 justified, based at least on what we have seen so far from a
13 retired justice.
14 THE COURT: So --
15 MS. SHOAEI: Your Honor, I want to make two more
16 points really quick. Just two, two, I'm so sorry. One
17 thing is, you have -- I'm happy to give you a copy of the
18 November 17 discovery conference transcript if you like.
19 THE COURT: It's on there.
20 MS. SHOAEI: And what we discussed. So it's
21 very -- it's how we see, it's pretty black and white on what
22 Your Honor stated and what was the purpose of that footnote
23 that Mr. Swanson is referring to.
24 Then also there is this discussion of Mr. Swanson
25 made this whole, it's been a ten-month ordeal, let's say,
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1 but it hasn't been ten months. There was a global
2 resolution between the parties after your August 2022 orders
3 on all disputes, including not only just TMG, not including
4 just Vanner, but also the CORA issues that were at -- that
5 were at stake at that time, the motion to amend to deal with
6 a separate issue with respect to -- as the CORA -- yeah,
7 sorry, the CORA issue, but then also with respect to the
8 issue that we had with Open potentially grabbing documents
9 after we initiated the lawsuit.
10 So there is a lot of things that have come into
11 play here. It's not just TMG/Vanner privilege.
12 And I would like to reiterate, this is -- this is
13 all part of Open's kind of own doing when they filed a
14 motion to compel documents for TMG months before we even did
15 a privilege log. Before we had even began reviewing
16 documents -- privilege or providing -- or finishing -- or
17 review of documents and producing documents, we told them it
18 was premature. These all were in the hypothetical,
19 especially for Vanner, Your Honor. This was a third
20 party -- this was a third-party subpoena. We didn't even
21 know what Vanner would have or would not have. So these
22 were all in the theoretical sense to provide, to raise the
23 objections. And then to then say, Oh, we waived them and
24 they're somehow no longer applicable seems a little odd.
25 And so it just seems part of the fees portion that
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1 Open is requesting is, it's part of their own -- it's --
2 they did this by jumping the gun and making the City do
3 things out of order in -- in a way that they wanted to,
4 which was fine, we responded, we did what we needed to do,
5 but it's not -- it's not based off of something some bad act
6 that the City did. In fact, I don't think Open has ever
7 argued that we had done something in bad faith.
8 Even in the global resolution that the parties
9 came up to, we gave them final versions of these memos, and
10 that's really key here. They say they think that these
11 documents that are privileged have some way that it's going
12 to change dispositive motions. For the Vanner -- excuse me,
13 that was really loud. For the Vanner-related memos we gave
14 them the final versions of Dr. Fray (ph) who was on behalf
15 of Vanner, they have the final versions. With respect to
16 TMG, they have the final version of the presentation, they
17 have that.
18 There is the various -- though, there is case law
19 that we provide, Your Honor, where the underlying drafts are
20 protected by the work product. So for them to say that
21 they're somehow being prejudiced by that, that's just not
22 true.
23 And under this global resolution that we --
24 parties came out to in September, Open agreed, and then
25 walked away from that agreement that these were going to
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1 resolve the privilege issues.
2 So I think to say that it's the City that is
3 making Open incur these fees and expenses or costs, it's
4 just inaccurate.
5 THE COURT: The ultimate concern I have is, leave
6 no stone unturned is not always the best policy. And I have
7 the same concern that if you have 98 percent of what you
8 need, what you would ideally want and that 2 percent is
9 going to overwhelm the cost and the time and the energy
10 necessary to litigate this case, there is some
11 proportionality problem that I see, plus drafts of
12 agreements. Subtle changes just are not going to be the
13 smoking guns in this case, I don't think.
14 MR. SWANSON: I'll give you a couple examples --
15 well, first, I want to address the percentages. Justice
16 Rice recommended that Open should get 98 percent of the
17 challenged documents.
18 THE COURT: But I mean 98 percent of important
19 information, not --
20 MR. SWANSON: Right.
21 THE COURT: -- total volume of documents that
22 we're talking about, but, you know, the ah-ha sort of
23 things, whether they're there or not or whether this is
24 interesting, it might even support your case, but
25 ultimately, it doesn't fundamentally, like she said, what
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1 matter in a motion for summary judgment or maybe even at
2 trial. It would just be documents 17 of list of documents
3 on the same point.
4 MR. SWANSON: Here is -- here is an example,
5 though, of where the drafts matter and make a difference.
6 In one of these memos where the City's project manager says
7 the City has failed to staff this project adequately, the
8 City has failed to put the resources it agreed to put into
9 it and, therefore, the City could be held liable by Open for
10 breaching the contract. We have that memo, but there is
11 another version of that memo that says signed off and
12 approved by City Attorney's Office.
13 We have another memo that has been clawed back --
14 THE COURT: But wait a second, I don't understand
15 the significance of what you just said.
16 MR. SWANSON: That that solidifies with the City's
17 own attorney saying, Yep, I agree, we -- we have the
18 potential liability to Open.
19 THE COURT: But as if the attorneys wouldn't have
20 seen every draft of that at every stage.
21 MR. SWANSON: Right.
22 THE COURT: Already know it. A signature on a
23 line, does that really matter?
24 MR. SWANSON: I think it adds to how compelling
25 that document is to the jury, in part, because the City is
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1 trying to walk away from that document. And so to tie them
2 to it more effectively, this draft is helpful. Another more
3 substantive example --
4 THE COURT: You say you have it?
5 MR. SWANSON: It has been clawed back. So I'm
6 speaking about it in the -- based on, you know, what we saw
7 before it was clawed back.
8 THE COURT: So the only changes that there is a
9 signature of an attorney on it?
10 MR. SWANSON: That's in one. Another that we saw
11 that was produced by Vanner and then was clawed back and
12 then we've segregated, so we've not -- we've not used any of
13 these in our briefing. The drafts of these --
14 MS. SHOAEI: Your Honor, I'm sorry, just really
15 quick. We clawed these back, so I'm not sure they can
16 actually use these like to even make this argument. I
17 understand what they're trying to say, but I think this kind
18 of violates our protective order, our --
19 THE COURT: Well, you can't use them substantively
20 yet.
21 MR. SWANSON: Right, and we haven't.
22 THE COURT: But I'm not sure there is a
23 prohibition on --
24 MR. SWANSON: I think under Rule 45 we're allowed
25 to raise a third-party's production to you, even if it's
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1 been clawed back, but we can't use it in substantive
2 proceedings. If there are concerns --
3 THE COURT: You guys can take off. He'll call me,
4 okay, and I'll let you know what the fruits of that are.
5 UNIDENTIFIED SPEAKER: Thank you, Judge.
6 THE COURT: Thanks.
7 MR. SWANSON: But the other substantive instance
8 that we can identify, because we have not seen many of these
9 documents, is a draft of a memo from a City project manager
10 saying, Hey, we are short eight to ten staff members out of
11 the, you know, 20 or so that we're supposed to have on this
12 case and then that gets excised from a subsequent draft
13 after a lot of commenting back and forth on it.
14 And this is something that is core to the case and
15 that has been held back because it's one of these drafts.
16 It's not an attorney draft. So I don't know how that would
17 be work product, but these are the things that we know
18 about. And so I -- we are not on a fishing expedition here.
19 THE COURT: Well, if I can recall, even in work
20 product, facts are discoverable.
21 MR. SWANSON: That's right, under your ruling --
22 THE COURT: I think that's black letter law that
23 facts --
24 MS. SHOAEI: And Your Honor, this isn't just --
25 these aren't just work product, these are -- so I think we
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1 should first look at what I believe Mr. Swanson is
2 referring to, they're actually deliberative process
3 privilege, not just work product. So I think we have --
4 this is a fundamental issue for the Vanner documents that
5 we're asserting deliberative process privilege.
6 MR. SWANSON: I'm fairly certain facts are also
7 not withhold-able under the deliberative process privilege,
8 but, you know, we thought that this is a limited issue.
9 MS. SHOAEI: May I continue, sorry.
10 MR. SWANSON: Anyway.
11 MS. SHOAEI: And so the other thing is, there are
12 things that Mr. Swanson is raising, he's actually asked in
13 depositions about things like this. He deposed Dr. Fray
14 from Vanner and asked her very -- very similar questions to
15 what he's stating that these documents already withhold.
16 THE COURT: And did he get the information?
17 MS. SHOAEI: He did, Your Honor.
18 MR. SWANSON: We got instructions on privilege and
19 we're not able to finish some of those questions, Judge.
20 MS. SHOAEI: That's inaccurate, Your Honor, that
21 is inaccurate. We are happy to give you those deposition
22 transcripts for you to review. They also ask the same
23 questions with respect to -- they even ask questions about
24 TMG things, that whatever they wanted to ask about TMG.
25 But this issue about -- they even deposed the
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1 City. They asked the City under the 30(b)(6) or individuals
2 about, you know, changes to project management, changes to
3 the project manager's lack of staffing, inadequate staffing,
4 however you want to phrase it, they asked all of these
5 questions.
6 And even if we're -- TMG, why I referenced them,
7 is because these issues regarding the -- inaccurate number
8 or supposedly improper number of people staffed, those are
9 questions that Mr. Swanson asked of TMG's representatives
10 because he has interview notes from the City staff.
11 So I don't know how -- why we're going back to
12 these deliberative process privilege documents, when Open,
13 to your point, Your Honor, has the 91 percent of what it
14 already needs --
15 MR. SWANSON: You can see, Judge --
16 MS. SHOAEI: -- to keep going.
17 MR. SWANSON: -- these are material issues. We
18 have been asking about them and the City has withheld the
19 documents. And I think at the end of the day, that's really
20 it; that these are important issues to us and why we've been
21 prosing this and now we've learned that these are not
22 privileged documents.
23 THE COURT: Well, let's talk about what you guys
24 think by what I have on my plate when we're finished with
25 this argument.
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1 Number one would be the documents that the Master
2 ordered produced?
3 MR. SWANSON: Right.
4 MS. SHOAEI: And our objections to them, Your
5 Honor.
6 THE COURT: And your objections. Yeah, so I mean,
7 I allowed you to say your objections and a response,
8 correct, so procedurally you've objected, although it's in a
9 response.
10 MS. SHOAEI: That is correct, Your Honor, because
11 we were going to file our own objections.
12 THE COURT: Right. Okay. So the motion to adopt,
13 you're not objecting to the seven that the Master found were
14 privileged?
15 MR. SWANSON: Open is not objecting to the seven.
16 THE COURT: Order to adopt. No objection
17 whatsoever by -- by Open to what the Master did.
18 MR. SWANSON: And just to clarify again, that
19 there was a body of documents that the City had logged from
20 its own internal materials, not TMG or Vanner related, that
21 the Special Master just didn't address. I don't think we
22 would object to that because it just was not addressed, but
23 I don't want to imply that we are giving up those --
24 THE COURT: Understood.
25 MR. SWANSON: -- documents. Thank you, Judge.
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1 THE COURT: All right. Then the City's objection
2 to the Master's recommendation.
3 MS. SHOAEI: There is two objections, Your Honor.
4 We do -- we object to both recommendations for separate and
5 different reasons.
6 THE COURT: Okay.
7 MS. SHOAEI: But we do it all within our response
8 to the motion to adopt.
9 THE COURT: Then Open's request for fees?
10 MR. SWANSON: That's right.
11 THE COURT: And then what to do -- how many other
12 documents are logged and weren't considered that you didn't
13 raise?
14 MR. SWANSON: I believe, Judge, that there are 900
15 or so on the log, but I think that there are only 700 of
16 those still being withheld. And again, we don't want to be
17 unreasonable there. We can try to identify outside counsel
18 communications that would almost certainly be privileged,
19 but, yeah, I've made my points on that.
20 THE COURT: And your claim is that hundreds of
21 those are just one string -- the real different documents
22 are not 700, they're going to be far less than that?
23 MS. SHOAEI: Are the --
24 THE COURT: Are you contending that some of these
25 are families of the same kind?
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1 MS. SHOAEI: Yes, that's going to be with all of
2 these documents that we're talking about. For instance, the
3 300 that Open keeps referring to as are being referred to
4 the Special Master are only 7. It's really not 300
5 documents, it's like 75 to 100 unique.
6 THE COURT: Right.
7 MS. SHOAEI: Same thing for whatever would be
8 remaining. But I think the key here, Your Honor, is
9 Mr. Swanson kind of made my point for me a little bit here
10 is the -- Open hasn't even tried to confer on the whatever
11 remaining privilege log documents are.
12 THE COURT: I understand. That would be a
13 necessary step. You said you're prepared to --
14 MR. SWANSON: We will, Judge. I am concerned
15 again, though, conferral was not a particularly fruitful
16 process that got us to this. We spent two months conferring
17 with them only to end up with a ruling where all the
18 documents the City continued to withhold were -- were not
19 privileged.
20 THE COURT: Well, I mean, you know, again, since
21 you might want to wait to confer until I have issued a
22 decision on the objections to know where I am on that,
23 because, otherwise, you know, you may be not using your time
24 efficiently.
25 MS. SHOAEI: And, Your Honor, I guess our position
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1 is that you shouldn't have even had ordered us to look at
2 other documents.
3 THE COURT: Yeah, I understand.
4 MS. SHOAEI: I understand your point of saying
5 that --
6 THE COURT: Because it's been waived, I guess,
7 would that be your --
8 MS. SHOAEI: That is a significant argument, that
9 is correct, Your Honor, but also there is -- again, the two
10 bases typically would be that we lack substantial
11 justification or we had some bad faith. Neither of those
12 have been presented.
13 We -- that we somehow unsubstantially --
14 THE COURT: Well, that's on the fees' issue, but
15 whether you should now in light of --
16 MS. SHOAEI: There needs to be a bad faith
17 component, Your Honor, and a substantial justification. So
18 if we look at the size of the cases that we also
19 differentiate that Open cited to, that's what we discuss.
20 It's not just you get to open them just because someone
21 thought that they withheld them wrongly so now you get to
22 review everything else. That's not -- it's not such a
23 blanket argument.
24 THE COURT: So you're saying it's not really an
25 initial challenge to a privilege list, it's a different
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1 standard?
2 MS. SHOAEI: Right, Your Honor, because at this
3 point they're saying that we did something wrong for it to
4 be able to then review all these other documents, but they
5 haven't said that. They have not said that at all, that
6 we --
7 THE COURT: No, I'm talking about -- regardless of
8 what they said, take Mr. Swanson's proffer that I asked him
9 what kind of legal proposition would permit them to now go
10 back --
11 MS. SHOAEI: Right.
12 THE COURT: -- and request documents they didn't
13 request before that are on a privilege log. He put that
14 into the record. I also questioned whether at every point
15 in the litigation there is an obligation to make sure that
16 whatever you withheld is on a proper legal basis.
17 If you become convinced sometime during the
18 lawsuit that there are documents you should have produced
19 but you withheld pursuant to privilege, then you have an
20 independent obligation just to produce those, just like you
21 would supplementing Rule 26(a)(1) disclosures. I mean, at
22 all times your privilege log needs to have integrity,
23 correct?
24 MS. SHOAEI: Absolutely, Your Honor, and that's a
25 key part here is the cases that Mr. Swanson refers to in
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1 their motion to modify, simply to adopt the Special Master
2 for additional review is the cases there. The privilege
3 logs were completely just inaccurate or completely like
4 lacking information. Here I don't think that's an issue
5 here. And so we actually revised our logs to have even more
6 information for this issue so there is a way to look at our
7 logs to determine if they are or not.
8 So I think we're just saying that they can open it
9 for no reason, or just to open because of whatever your
10 ruling is seems a little improper. And we also have to
11 remember, these are third party documents. Open wants to
12 take the privilege assertions on third-party documents and
13 apply it to its own documents and somehow make them that one
14 and the same, and they're not.
15 THE COURT: So every third-party document was
16 reviewed by the Master?
17 MS. SHOAEI: I believe just the ones that were
18 directed to her. She has a list. So, for instance, there
19 is I think a 36 Vanner document that she doesn't look at.
20 I'm not sure exactly what I --
21 THE COURT: Right, but on the documents that were
22 on their privilege list that weren't challenged by Open, are
23 some of those third-party documents?
24 MS. SHOAEI: All of those are third-parties
25 documents. They're going to have either TMG or Vanner on
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1 them that they challenged.
2 THE COURT: All the remaining documents --
3 MS. SHOAEI: No, no, the ones that they challenged
4 are TMG/Vanner.
5 THE COURT: No, the ones they never challenged,
6 the ones they didn't contest, in that he wants to go back
7 and possibly look at now.
8 MR. SWANSON: The City has submitted four logs.
9 Our -- the remaining documents that we would like to have
10 reviewed would be across all four logs. Does that answer
11 your question?
12 THE COURT: It does, but it would include both
13 third-party documents internal to the City-only documents.
14 MR. SWANSON: That's right, that's right.
15 MS. SHOAEI: And our basis, there is no reason to
16 do the internal City documents that have ever been raised.
17 MR. SWANSON: And, Judge, we did, we challenged
18 some of those that the City --
19 THE COURT: And she didn't consider them.
20 MR. SWANSON: And they didn't consider them.
21 THE COURT: But I guess I'm understanding from
22 Mr. Swanson's viewpoint that if the City -- I mean, he
23 obviously believes that the City made a bad call, and if
24 they made a bad call here, they're probably making bad calls
25 on other documents. Is that what you're saying?
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1 MR. SWANSON: That's it, and we don't want to
2 throw out homonyms, but we think we presented you with
3 evidence --
4 THE COURT: Well, not a bad call in a moral sense
5 or an ethical sense. A bad call in a legal sense.
6 MR. SWANSON: Right.
7 THE COURT: Made the wrong legal decision, some
8 ex-judge believed that the calls were wrong and now you
9 think -- you would argue that leads us to believe other
10 calls that the City made were wrong?
11 MR. SWANSON: Right, that this isn't just mere
12 suspicion, but there is a pretty good factual record to
13 support it.
14 THE COURT: Okay. Well, I don't want you to
15 confer until I've had a chance to rule on the pending
16 request to adopt, okay. And after that, I mean, I would
17 want you to -- if there is anything for you to confer on, I
18 would want you to be judicious in not making it open season,
19 because we just don't have the time. Dispositive motions
20 are pending. I think Judge Sweeney kept those for herself.
21 MS. SHOAEI: Correct.
22 MR. SWANSON: That's right, Judge.
23 THE COURT: And I don't -- I'm not yet comfortable
24 with how quickly she's issuing rulings on her dispositive
25 motions. Are you guys?
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1 MR. SWANSON: I've looked, Judge, and she's at
2 least setting her trials now in the fall, but she seems to
3 be getting to those dispositive motions before that, but I'm
4 not sure she'll get to it before our pretrial conference
5 next month.
6 THE COURT: Do you have a trial date?
7 MR. SWANSON: No, not yet. That would be set
8 next -- next month.
9 MS. SHOAEI: On April 14 is our pretrial
10 conference.
11 THE COURT: All right. And you think you've seen
12 her having final pretrials in the last month or two, which
13 she's setting trials this year?
14 MR. SWANSON: In the fall, that's right.
15 MS. WECHTER: We've seen her rule on summary
16 judgment motions within about two to four months or so.
17 THE COURT: That's the last brief?
18 MS. WECHTER: In the cases we've seen.
19 THE COURT: That's the last brief?
20 MS. SHOAEI: Correct, and I think we're about two
21 months out right now.
22 THE COURT: Yeah, then I would certainly consider
23 that by the end of May you'll have a decision on this.
24 MR. SWANSON: Yeah. May I raise a few scheduling
25 issues related to that?
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1 THE COURT: Go ahead.
2 MR. SWANSON: The first is, if we're going to have
3 a bit more discovery, I think it will make Judge Sweeney's
4 practices for her final pretrial conference trickier,
5 because she likes to have full exhibit lists and full
6 witness lists.
7 THE COURT: And a statement that discovery is
8 completed, I'm sure.
9 MR. SWANSON: Right. And so I -- we could move
10 or -- we could move to convert the final pretrial
11 conference --
12 THE COURT: No. I would normally make a sua
13 sponte recommendation. If there is something going on that
14 I'm overseeing that would necessitate her extending that
15 out, then I would probably make my own recommendation. Do
16 you guys have any objection to that?
17 MR. SWANSON: We would welcome it.
18 MS. SHOAEI: I'm sorry, Your Honor, what would be
19 the sua sponte recommendation? Whatever you decide?
20 THE COURT: No. That she vacate the current final
21 pretrial conference and wait for you guys to -- wait for
22 some statement from me or you declaring that all discovery
23 is completed.
24 MS. SHOAEI: Your Honor, my hesitation, as you may
25 see on my face right now, is I'm a little concerned that if
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1 we do that, that allows defendants to just even more reason
2 to get more discovery. I'm very, very cautious on this
3 issue here.
4 THE COURT: Well, number one, it's finite, it's
5 defined, and they can't get more unless there is a more than
6 compelling reason. Number two, did you -- when did you
7 issue those written discovery requests?
8 MR. SWANSON: We issued those just over a month
9 ago.
10 THE COURT: Okay.
11 MR. SWANSON: And so we were going to ask for a
12 deadline for responses and objections.
13 THE COURT: And how soon can you have a response?
14 MS. SHOAEI: Don't quote me, but maybe two weeks.
15 THE COURT: Okay.
16 MS. SHOAEI: Two or three weeks.
17 THE COURT: All right. Well, how about April 10?
18 MS. SHOAEI: All right.
19 THE COURT: April 10 for a response. Then --
20 MS. SHOAEI: And just so we're clear, Your Honor,
21 it's any response and objections? To the extent we need to
22 object.
23 THE COURT: Sure, yes, of course.
24 MS. SHOAEI: Okay, thank you.
25 MR. SWANSON: Would it be efficient to go through
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1 the few requests just to resolve any objections?
2 THE COURT: In case you're worried about them
3 objecting and then having to come back in front of me?
4 MR. SWANSON: Basically, yeah, Judge.
5 THE COURT: Do you know of objections at the
6 moment?
7 MS. SHOAEI: No, Your Honor, but I think that's
8 also something that we shouldn't have to do on the record
9 here.
10 THE COURT: Okay. Well, I would ask you to think
11 twice before objecting on --
12 MS. SHOAEI: Sure.
13 THE COURT: -- that very limited amount of
14 discovery that should be very pinpoint.
15 MS. SHOAEI: And I don't think it would be a
16 burdensome or anything like that argument. Unfortunately,
17 there are going to be privileged communications with respect
18 to appropriations, because it deals with city council, it
19 deals with City Attorney's Office, so I think that is a very
20 key issue there that we do have to consider.
21 THE COURT: Oh, yeah. Okay. So April 10 you'll
22 have something, including documents. Let's say that you
23 don't have a dispute with what you've gotten, how soon would
24 you do a 30(b)(6)?
25 MR. SWANSON: My guess would be that we would do
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1 it in the next, you know, three weeks or so after that, try
2 to work out schedules.
3 THE COURT: So I think the best thing for me
4 probably to do, without having to go to the well twice, is
5 suggest that it be vacated and that I will inform -- I or
6 you, parties will inform Judge Sweeney we need to get back
7 on her docket for a final retrial. I don't think she would
8 take long in doing that.
9 MS. SHOAEI: Your Honor, would we -- instead of
10 doing that, can we maybe take a day and just confer with our
11 client, and then that way, if we can somehow on expedited
12 basis to be -- I think a lot of the documents that Open
13 already has that are responsive so it's not --
14 THE COURT: What date is your pretrial conference?
15 MS. SHOAEI: April 14.
16 MR. SWANSON: I think the other piece here,
17 though --
18 THE COURT: That's only four weeks away.
19 MR. SWANSON: -- is we're going to have --
20 MS. WECHTER: Your Honor, we will need to confer.
21 MR. SWANSON: -- is we still have the privilege
22 documents that we've never seen that we'll likely have some
23 issues arising from them so I can't imagine --
24 THE COURT: I know. Let's hear what she was about
25 to say.
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1 MS. WECHTER: First, I guess I should note that
2 we've conferred with Mr. Swanson about deadline items and
3 he's confirmed that we're not changing things, but let's
4 proceed. We would like a day at least to confer with our
5 client and see how we can expedite this, if we can try to
6 get the documents out ASAP and depositions set.
7 So I think it's a little unfair to clear it off
8 the docket today when the parties have previously tried to
9 confer on schedules and what makes sense with our other
10 trial schedules and, you know, we haven't even had notice of
11 this just falling off the docket --
12 THE COURT: Sure.
13 MS. WECHTER: -- potentially jeopardizing our
14 trial date and order.
15 THE COURT: Okay. Well, I guess given that, I
16 might just have to leave it to you to move to vacate.
17 MR. SWANSON: That's fine. Thank you, Judge. All
18 right.
19 And then I think we have at least a final deadline
20 for their responses and objections. The matter of unsealing
21 an order in January or February, you invited us to renew a
22 motion to unseal as pretrial phase begins.
23 I just want to understand when the Court's
24 invitation was contemplating. We don't want to do that at a
25 time when you don't want to entertain the motion, if that
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1 makes sense.
2 THE COURT: Well, I think it would be a
3 needs-based analysis. I mean, when you really feel you need
4 to, then you should.
5 MR. SWANSON: Okay.
6 THE COURT: I can't imagine that you wouldn't in
7 the next couple of days file a motion to vacate that,
8 because I just said April 10 as a response date for the
9 objections at their request.
10 MR. SWANSON: Yep.
11 THE COURT: And that's just four days before your
12 final pretrial.
13 MS. SHOAEI: Well, Your Honor, I think we're
14 saying a couple weeks just to be safe, but what I also
15 mentioned, and I apologize if this was not very clear, is
16 that it is our position that they already have most of the
17 documents, if not all of the documents that would be
18 responsive, but, of course, we'll track that and retrack
19 that and provide if there are any additional ones. So it's
20 not as if this is going to be a thousand-document
21 production. I highly, highly, believe that will not be the
22 case.
23 THE COURT: But the 30(b)(6) won't occur until
24 after they get the documents. They may not get the
25 documents, even if it's a couple, until early April and then
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1 you need to time set it. You're going to have a 30(b)(6)
2 after the trial preparation conference, or whatever it is.
3 Is it just a final pretrial?
4 MR. SWANSON: Pretrial.
5 MS. WECHTER: (Indiscernible).
6 THE COURT: All right, final pretrial. You know,
7 I don't even hold a final pretrial conference unless I'm
8 assured that discovery is completed. So it would just
9 disrupt everything.
10 MS. WECHTER: And we're not saying we want it.
11 THE COURT: Right.
12 MS. WECHTER: We just want to confer with our
13 client.
14 THE COURT: Understood. So I'll leave it to you
15 to file whatever motion that you need.
16 MS. SHOAEI: On the deposition, Your Honor, one
17 thing I did want to request is that either it be remote
18 30(b)(6) or that Open drive up to Fort Collins for it. This
19 is something that, again, it's going to likely be the same
20 person, Mr. Paul, who has already been deposed as a
21 30(b)(6).
22 THE COURT: Right.
23 MS. SHOAEI: So request -- again, this is timing
24 issues that Mr. Swanson has raised and so we request it that
25 it be over Zoom or the Open drive up.
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1 THE COURT: Would you make the same request if it
2 was in Denver?
3 MS. SHOAEI: What was in Denver?
4 THE COURT: The deposition.
5 MS. SHOAEI: If it was over Zoom, that's fine,
6 yeah, yeah, we could have it over Zoom.
7 THE COURT: No, no, I'm sorry. The deponent is
8 where?
9 MS. SHOAEI: Fort Collins.
10 THE COURT: Fort Collins. And you don't want him
11 to have to travel here?
12 MS. SHOAEI: Correct. I mean, that's how it has
13 been. We travel to the deponents -- we would travel to
14 Miami for their -- Open's deponents, so it seems fair
15 that --
16 THE COURT: Would you go up to Fort Collins to do
17 it?
18 MR. SWANSON: I think we would try to work it out
19 in terms of the schedule, but Judge Wang ruled on this early
20 in the case and said witnesses have to come down because
21 it's within 100 miles. I mean, it's pretty straightforward
22 rules. Now, if they have a reason, we're not going to be
23 unreasonable about it.
24 THE COURT: Well, the 100 miles doesn't apply to
25 parties.
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1 MS. SHOAEI: Correct.
2 MR. SWANSON: It does in case law.
3 THE COURT: It does.
4 MR. SWANSON: Because a witness is going to be
5 compelled if they don't come voluntarily and so it just gets
6 extended out to the Rule 45.
7 THE COURT: But if it's a City employee -- is it a
8 City employee?
9 MS. SHOAEI: It is, Your Honor.
10 THE COURT: I mean, don't you just have the
11 absolute right to have -- I mean, designate City employees
12 as trial witnesses and compel their appearance by that
13 designation alone.
14 MR. SWANSON: I think they had to -- I thought
15 they had to have certain roles. In all events --
16 THE COURT: You mean if they're supervisors?
17 MR. SWANSON: Right, or officers, but we will, you
18 know, work with the City on this, but if there is not a
19 compelling that the witness can't come down, having four
20 lawyers go up is -- seems unbalanced.
21 THE COURT: I agree with that.
22 MS. SHOAEI: Your Honor, that may be the case, but
23 again, we've had to fly to Miami for things. So it's not
24 like this is a first time, even much less person -- they
25 even took the 30(b)(6)s in Fort Collins, so I'm not sure why
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1 this all the sudden becomes an issue.
2 THE COURT: Well, I'm not real sympathetic. My
3 law clerk actually lives in Fort Collins and drives down
4 every day, so you just -- you have to realize the person you
5 have in front of you and it's just not a big deal for one
6 person -- I do not like the thought of attorneys traveling
7 at 4- or $500 an hour.
8 MS. SHOAEI: Right, but we can do them over Zoom.
9 We did several 30(b)(6) depositions over Zoom, Your Honor.
10 THE COURT: I don't disagree with that. So please
11 work it out. Don't bring that one back to me. Anything
12 else from the plaintiff?
13 MS. SHOAEI: I don't believe so, Your Honor, thank
14 you.
15 THE COURT: Defendants.
16 MR. SWANSON: Let me just check with Ms. van de
17 Stouwe. No, thank you, Judge, we appreciate it.
18 THE COURT: All right, we'll be in recess.
19 (Whereupon, the within hearing concluded at 2:33
20 p.m.)
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1 TRANSCRIBER'S CERTIFICATE
2 I certify that the foregoing is a correct
3 transcript, to the best of my knowledge and belief (pursuant
4 to the quality of the recording) from the record of
5 proceedings in the above-entitled matter.
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7 /s/Dyann Labo May 12, 2023
8 Signature of Transcriber Date
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EXHIBIT 3
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 21-cv-02063-CNS-MEH
CITY OF FORT COLLINS,
Plaintiff/Counterclaim Defendant,
v.
OPEN INTERNATIONAL, LLC
Defendant/Counterclaim Plaintiff,
and
OPEN INVESTMENTS, LLC,
Defendant.
RESPONSES AND OBJECTIONS TO DEFENDANTS’ FIFTH SET OF DISCOVERY
REQUESTS TO PLAINTIFF
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Plaintiff the City of
Fort Collins (the “City”), by and through its undersigned attorneys, hereby submits the following
responses and objections to Defendants Open International, LLC and Open Investment, LLC’s
(collectively “Defendants”) Fifth Set of Discovery Requests:
PRELIMINARY STATEMENT
The City’s response to a specific discovery request (the “Request”) should not be construed
as an admission that the City accepts or admits the existence of any document, evidence, fact,
and/or thing, and/or the validity of any legal argument, set forth in or assumed by such Request.
The fact that the City responds to any Request shall not be construed as a waiver of all or any part
of the objections interposed by the City to any Request. The fact the City produces documents in
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response to a Request does not mean that any of the documents constitute relevant or admissible
evidence. The City’s responses to Defendants’ Requests provided below are made without
prejudice, and in full reservation of all of its rights and defenses. The City’s responses to
Defendants’ Requests are subject to the Protective Order entered in this matter.
GENERAL OBJECTIONS
1. The City objects to Defendants’ Fifth Set of Discovery Requests to the extent they
seek to expand the City’s obligation beyond the scope of permissible discovery es tablished by
Rules 26 and 34 of the Federal Rules of Civil Procedure and any applicable Local Rules.
2. The City objects to the Requests to the extent they seek materials or information
protected by the work-product doctrine, attorney-client privilege, or any other privilege or
immunity from discovery. Any inadvertent production or disclosure by the City shall not constitute
a waiver of any such privilege or immunity. The City reserves the right to request the return of any
such non-discoverable document that is inadvertently produced.
3. The City objects to each Request to the extent that it seeks confidential or
proprietary information unless adequate measures are taken to assure confidentiality.
4. The City objects to each Request to the extent the same are overly broad, unduly
burdensome, oppressive in the amount and format of the information requested, or unreasonably
cumulative or duplicative in light of information which already has been made available. The City
will attempt to respond to the requests in good faith, but reserves the right to object to any requests
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that would impose an unreasonable burden in light of the claims and defenses actually presented
in the case.
5. The City objects to each Request to the extent they seek information or documents
that are in the possession of third parties not under its custody or control. To the extent that the
information or documents requested are in the possession of a third party, it is more convenient,
less burdensome and less expensive to seek discovery directly from that third party.
6. All information and documents provided and/or made available for inspection and
copying in connection with the City’s answers and responses to Defendants’ Fifth Set of Discovery
Requests are provided and/or made available for use in this action only and for no other purpose.
7. The City will produce any responsive ESI in a manner that preserves any metadata
available if at all possible, and otherwise will produce its documents in searchable PDF format or
native spreadsheets, if applicable.
8. The City has set forth such objections as are apparent at this time based upon its
understanding of Defendants’ Fifth Set of Discovery Requests. The City expressly reserves the
right to assert additional objections, including, but not limited to, those based upon undue burden,
which may become apparent in the course of providing and/or making available for inspection and
copying information and documents to Defendants.
9. The City reserves the right to revise, correct, add to, supplement, and clarify any of
its answers or responses.
10. Subject to and without waiving these objections, the City responds as follows:
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RESPONSE TO REQUESTS FOR PRODUCTION
REQUEST FOR PRODUCTION NO. 22: Please produce all documents and
communications concerning the City’s appropriations and budget for the Project. The relevant time
period for this request is July 1, 2017 to the present date.
Objection and Response to Request for Production No. 21: The City incorporates each
of its general objections by reference. The City objects to this Request as it seeks documents not
relevant or proportionate to the claims and defenses in this action. The Request is also overly broad
as to time as it covers nearly six years and as to scope due to the phrase “all documents and
communications”. Further, the term “Project” as defined by Open is vague and overly broad as it
includes aspects of Broadband and the City’s utilities that are not related to any claim or defense.
Thus, the City limits the term “Project” herein to the CIS/OSS billing system. The City also objects
to this Request to the extent it seeks information subject to the attorney-client privilege and/or the
deliberative process privilege.
Notwithstanding the foregoing objections, the City states that it has already produced non-
privileged documents responsive to this Request up to and including through May 2021, including
but not limited to numerous budget records and communications, such as those bated-stamped as
CFC_016964, CFC_012888, CFC_213070, CFC_025961, CFC_101559, CFC_101551,
CFC_149546, CFC_017612, CFC_009917, CFC_017943, CFC_084071, CFC_081475,
CFC_073647, CFC_102852, CFC_111447, CFC_191488, CFC_084516, CFC_134257,
CFC_192984, CFC_026482, CFC_060324, CFC_191490, CFC_0103447, CFC_121339,
CFC_030046, CFC_149544, CFC_041993, CFC_215361, CFC_100598, CFC_083866,
CFC_056471, CFC_045939, CFC_013283, CFC_103046, CFC_011809, CFC_121002,
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CFC_025517, CFC_071848, CFC_111448, and CFC_012803, including their respective family
members, as well as Weekly Project Status Reports and Monthly Status Reports. Further, the City
produces herewith its annual expenditure reports, additional Agenda Item Summaries, and line-
item payments associated with the Project, as defined by the City herein, through September 2022.
The City further states that the last appropriation for the Project was Ordinance No. 076 (2020) for
$1,900,000.
REQUEST FOR PRODUCTION NO. 23: Please produce all documents and
communications concerning the City’s Allocation and spending of funds that were appropriated
for the Project. The relevant time period for this request is July 1, 2017 to the present date.
Objection and Response to Request for Production No. 23: The City incorporates each
of its general objections by reference. The City objects to this Request as it seeks documents not
relevant or proportionate to the claims and defenses in this action. The Request is also overly
broad as to time as it covers nearly six years and as to scope due to the phrase “all documents and
communications”. Further, the term “Project” as defined by Open is vague and overly broad as it
includes aspects of Broadband and the City’s utilities that are not related to any claim or defense.
Thus, the City limits the term “Project” herein to the CIS/OSS billing system. Moreover, the City
objects to this Request as duplicative of Request for Production No. 22. The City also objects to
this Request to the extent it seeks information subject to the attorney-client privilege and/or the
deliberative process privilege.
Notwithstanding the foregoing objections, the City states that it has already produced non-
privileged documents responsive to this Request, including but not limited to the documents
Case No. 1:21-cv-02063-CNS-SP Document 223-3 filed 05/17/23 USDC Colorado pg 6 of
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identified in response to Request for Production No. 22 and the breakdown of line-item payments
associated with the Project, as defined by the City, produced herewith.
REQUEST FOR PRODUCTION NO. 24: Please produce all documents and
communications concerning the City’s payments to vendors for the Project, other than payments
to Open. The relevant time period for this request is August 1, 2018 to the present date.
Objection and Response to Request for Production No. 24: The City incorporates each
of its general objections by reference. The City objects to this Request as it seeks documents not
relevant or proportionate to the claims and defenses in this action. The Request is also overly broad
as to time as it covers nearly five years and as to scope due to th e phrase “all documents and
communications”. Further, the term “Project” as defined by Open is vague and overly broad as it
includes aspects of Broadband and the City’s utilities that are not related to any claim or defense.
Thus, the City limits the term “Project” herein to the CIS/OSS billing system. Moreover, the City
objects to this Request as duplicative of Requests for Production Nos. 22-23. The City also objects
to this Request to the extent it seeks information subject to the attorney-client privilege and/or the
deliberative process privilege.
Notwithstanding the foregoing objections, the City states that it has already produced non-
privileged documents responsive to this Request, including but not limited to the documents
identified in response to Requests for Production Nos. 22-23 and the breakdown of line-item
payments associated with the Project, as defined by the City, produced herewith. The City does
not intend to produce every single communication or document concerning these individual
payments as that is overly burdensome, reflecting thousands of various documents, when the
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breakdown of line-item payments provides the necessary and relevant information of the monies
paid.
RESPONSE TO INTERROGATORIES
INTERROGATORY NO. 24: Please identify each City ordinance or other
authorization—by name, date, and the authorizing individual(s)—that concerns City appropriation
of funds related to the Project and the amount the City contends was appropriated for the Project
by each such ordinance or other authorization.
Objection and Response to Interrogatory No. 24: The City incorporates each of its
general objections by reference. The City objects to this Interrogatory as vague and confusing
regarding the phrase “authorizing individual(s)”. Further, the term “Project” as defined by Open
is vague and overly broad as it includes aspects of Broadband and the City’s utilities that are not
related to any claim or defense. Thus, the City limits the term “Project” herein to the CIS/OSS
billing system.
Subject to and without waiving these objections, the City states that the Fort Collins City
Council is responsible for approving the appropriation of funds. The City further states that the
following ordinances and/or authorization relate to the Project, as defined by the City:
Ordinance No. 154, 2017 - $2,300,000
Ordinance No. 056, 2018 – $2,362,892
Ordinance No. 093, 2018 - $6,297,001
Ordinance No. 076, 2020 - $1,900,000
The City further states that, like all appropriations, the Fort Collins City Council approved the
above-stated ordinances.
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INTERROGATORY NO. 25: Please explain the basis for the City’s contention that only
$2,362,892 of the $115,356,991 appropriated for broadband construction in City Ordinance 56
(2018) was available for the Project, including by identifying any provisions of that ordinance, or
provisions of any other documents, that the City relies on in support of that contention.
Objection and Response to Interrogatory No. 25: The City incorporates each of its
general objections by reference. The City objects to this Interrogatory as vague and confusing
regarding the phrase “authorizing individual(s)”. Further, the term “Project” as defined by Open
is vague and overly broad as it includes aspects of Broadband and the City’s utilities that are not
related to any claim or defense. Thus, the City limits the term “Project” herein to the CIS/OSS
billing system.
Subject to and without waiving these objections, the City states that out of Ordinance No.
056, $108,608,249 was dedicated for Capital Projects. From that amount, $949,000 was allocated
for the CIS/OSS billing system, as described in the agenda item summary for Ordinance No. 093.
Further, the City allocated $315,000 in 2021 from that amount to cover Broadband’s share of the
CIS/OSS billing system expenses. Additionally, in 2022, the City allocated $1,016,003 from that
amount for GLDS concerning the CIS billing system for Broadband. The City also spent $82,289
from that amount for outstanding expenses in 2022 for the CIS/OSS billing system. There are no
amounts remaining from the $108,608,249.
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INTERROGATORY NO. 26: Please identify the City ordinance, other authorization, or
any other basis upon which funds were appropriated or Allocated to pay Open in connection with
Project Change Request 29, including any documents that reflect that appropriation or Allocation.
Objection and Response to Interrogatory No. 26: The City incorporates each of its
general objections by reference. Notwithstanding these objections, the City states that it
appropriated $1,900,000 as part of Ordinance No. 076 (2020). Further, pursuant to Federal Rule
of Civil Procedure 33(d), the City directs Defendants to CFC_149546 for a detailed breakdown of
the CIS/OSS billing system-funding summary, as well as detailed explanation found in
CFC_150353 and the breakdown of payments produced herewith.
INTERROGATORY NO. 27: Please identify each City individual involved in
appropriating and Allocating funds for and within the Project, and their role concerning such
appropriations and Allocations.
Objection and Response to Interrogatory No. 27: The City incorporates each of its
general objections by reference. The City objects to this Interrogatory as vague and confusing
regarding the phrase “individual involved in appropriating and allocating funds”. Further, the term
“Project” as defined by Open is vague and overly broad as it includes aspects of Broadband and
the City’s utilities that are not related to any claim or defense. Thus, the City limits the term
“Project” herein to the CIS/OSS billing system.
Subject to and without waiving these objections, the City states that the Fort Collins City
Council under the City’s Charter is responsible for approving the appropriation of all funds.
Further, the City Manager and the City’s Financial Officer, or their designees, have roles in
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approving individual payments to vendors and in ensuring such payments are from appropriated
funds.
INTERROGATORY NO. 28: Please explain what happened to the $1,900,000
appropriated by City Ordinance No. 76 (2020), which the City claims has been spent, including
when, how, to whom, and for what purpose those funds were spent and the identity(ies) of any
“member of the governing body” of the City or “officer, employee, or agent” of the City and its
agencies—as those quoted terms are used in C.R.S. § 29-1-115—who paid or authorized the
payment of those funds to any entity other than Open.
Objection and Response to Interrogatory No. 28: The City incorporates each of its
general objections by reference. The City further objects to this Interrogatory as compound and
overly burdensome and harassing as it would entail identifying and locating hundreds of individual
approvals and especially as the approver of the payment is not relevant to any claim or defense in
this action and thus, disproportionate. Further, the City objects to this Interrogatory to the extent it
seeks information duplicative in Request for Production No. 22-24 and Interrogatory No. 29. The
City also objects to this Interrogatory as it seeks a legal analysis and/or conclusion.
Subject to and without waiving these objections, the City, pursuant to Federal Rule of Civil
Procedure 33(d), directs Defendants to the documents previously produced attached to C. Collard’s
October 3, 2022 correspondence, as well as the breakdown of line-item payments associated with
the Project, as defined by the City, produced herewith. The City further states that payments to
vendors are authorized by a variety of people, depending on numerous factors, including but not
limited to the vendor, the type of payment, and the reason for payment.
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INTERROGATORY NO. 29: For all payments to vendors for the Project in calendar year
2021, please identify the amount of payment, the date, the recipient, and the purpose.
Objection and Response to Interrogatory No. 29: The City incorporates each of its
general objections by reference. The City further objects to this Interrogatory as compound.
Further, the City objects to this Interrogatory to the extent it seeks information duplicative in
Request for Production No. 22-24 and Interrogatory No. 28.
Subject to and without waiving these objections, the City, pursuant to Federal Rule of Civil
Procedure 33(d), directs Defendants to the documents previously produced attached to C. Collard’s
October 3, 2022 correspondence, as well as the breakdown of line-item payments associated with
the Project, as defined by the City, produced herewith.
Dated this 10th day of April, 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
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CERTIFICATE OF SERVICE
I hereby certify that on April 10, 2023, I caused the foregoing document to be served as an
attachment to email addressed 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/ Maral J. Shoaei
Dorsey & Whitney LLP
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EXHIBIT 4
Case No. 1:21-cv-02063-CNS-SP Document 223-4 filed 05/17/23 USDC Colorado pg 1 of
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PROPOSED APPROPRIATIONS SEARCH TERMS
Proposed Custodians:
1. Gerry Paul
2. Pat Johnson
3. Travis Storin
4. Lance Smith 5. David Clabaugh (starting 1/1/2021)
Terms to apply to documents and emails for the period 7/1/2017 through present:
(“Open” OR “utilit*” OR “broadband” OR “billing system” OR “OSF” OR “CIS” OR “Smartflex” OR
“smart flex” OR “Connexion”) NEAR(50) (“appropriat*” OR “budget*” OR “spen*” OR “expend*” OR
“pay*” OR “paid” OR “encumber*” OR “money” OR “fund*” OR “ordinance” OR “authoriz*” OR
“council” OR “allocat*” OR “retainage”)
Terms to apply to documents and emails for the period 1/1/2021 through present:
(“TMG” OR “Advanced Network” OR “ANM” OR “Arisant” OR “Great Lakes” OR “GLDS”)
NEAR(50) (“approp*” OR “budget” OR “spen*” OR “expend*” OR “pay*” OR “encumber*” OR “paid”
OR “money” OR “fund*” OR “ordinance” OR “authoriz*” OR “allocat*”)
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EXHIBIT 5
Case No. 1:21-cv-02063-CNS-SP Document 223-5 filed 05/17/23 USDC Colorado pg 1 of
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Open Contract Estimate After Review
PO 9184858 9,939,696$ Current JDE Balance
1,043,182$ [A]Identified Additions/Corrections Needed
10,982,879$
PO 9201970 988,740$
PO 9185566 60,245$
1,048,985$
12,031,864$
(120,920)$ Non-OASIS O&M BU Designated Exp
Project 'Funded'11,910,944$
[A]1,043,182$
(87,620)$ PO 9201970: Diff between PCR29 and encumbered PO amount (Not earmarked -->favorable variance)
(13,635)$ Diff between Amendment 1 and Appropriation of $1.9M
941,927$
Case No. 1:21-cv-02063-CNS-SP Document 223-5 filed 05/17/23 USDC Colorado pg 2 of
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