HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 241 - City's Motion In LimineIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 21-cv-02063-CNS-SBP
CITY OF FORT COLLINS,
Plaintiff/Counterclaim Defendant,
v.
OPEN INTERNATIONAL, LLC
Defendant/Counterclaim Plaintiff,
and
OPEN INVESTMENTS, LLC,
Defendant.
THE CITY OF FORT COLLINS’S MOTION IN LIMINE 1
The City of Fort Collins (the “City”), respectfully requests that the Court prohibit
Defendants Open International, LLC and Open Investments, LLC’s (collectively “Open”) from
introducing evidence and testimony regarding the three following issues at trial:
I. Evidence of Open’s Contract, Implementation Process, Performance, and Post-
Go-Live Experience with Non-Party Tualatin Should Be Excluded.
This Court has broad discretion to determine the admissibility of evidence under the
Federal Rules of Evidence. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008).
F.R.E. 402 provides, “irrelevant evidence is not admissible.” Fed. R. Evid. 402. “Relevant
evidence” means evidence having any tendency to make the existence of any fact that is of
1 Pursuant to D.C.COLO.L.CivR 7.1 and Section III(D) of the Court’s Standing Order Regarding Pretrial
and Trial Procedures, counsel conferred with counsel for Open. Open opposes the relief requested herein.
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consequence to the determination of the action more probable or less probable than it would be
without the evidence. Fed. R. Evid. 401. That is, when testimony fails to bear on a material fact of
a party’s allegation or claim, the testimony is irrelevant and should be deemed inadmissible.
Additionally, even relevant evidence may be excluded if its probative value is substantially
outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid. 403. The decision to
exclude evidence is within the Court’s “inherent authority to manage the course of trials.” Luce v.
United States, 469 U.S. 38, 41 n.4 (1984).
Here, Open has listed Thomas Hickmann, the CEO of non-party Tualatin Valley Water
District and Clean Water Services’ (collectively “Tualatin”), as a “will call” witness on Tualatin’s
own selection of and implementation process of Open’s software (“OSF”), the performance of
Open’s project team and OSF for Tualatin, and Tualatin’s post-go-live experience with OSF and
Open. Dkt. 230 at 27. While the City does not seek to preclude testimony regarding Mr.
Hickmann’s personal familiarity with any interactions between City personnel and Tualatin
personnel, any additional testimony is improper as it is not relevant to any claim or defense. In
August/September 2020, Tualatin entered into a contract with Open to implement OSF for a billing
system covering only water and wastewater on a cloud-based platform. See Ex. 1, Decl. of T.
Hickmann, at ¶¶ 2, 15; Ex. 2, Dep. of T. Hickmann (“Hickmann Depo.”), at 33:3-34:7; 60:5-11;
117:2-11. This was two years after the City had executed its contract with Open as Open’s very
first U.S. customer. See Dkt. 1-1 at ¶ 30. Tualatin’s billing system went live on July 3, 2022—
more than one year after the City terminated the project with Open. Compare Ex. 1 at ¶ 36 to Dkt.
1-1. However, evidence of Open’s purported successful implementation of OSF for Tualatin is
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irrelevant to the terms of the contracts between Open and the City, Open’s performance with the
City as Open’s first U.S. customer, or performance of OSF for the City’s five utilities.
Specifically, Open’s contract with Tualatin, the details related to Tualatin’s
implementation project, and how Open or OSF performed with or for Tualatin years after the
contract with the City is irrelevant to Open’s misrepresentations to the City regarding the
functionalities of OSF in 2018 (both when Open responded to the City’s February 2018 Request
for Proposal and when it entered into contract with the City in August 2018) or Open’s breaches
of its contract with the City. See Corizon Health, Inc. v. CorrecTek, Inc., 2018 U.S. Dist. LEXIS
97083, at *68 (W.D. Ky. June 8, 2018) (excluding testimony related to other implementations of
a party’s software because “the success of [Defendant’s] software at other [Plaintiff] locations is
irrelevant to whether the . . . Defendants in this case misrepresented the software and the services
[Plaintiff] would be getting pursuant to the MSA and its Schedules in this case.”) (emphasis in
original). Notably, at the time Open submitted its response to the City in 2018, it graded its
functionalities based on functionalities that did not yet exist. Open entered into a contract with
Tualatin in Fall 2020 and what functionalities Open may have developed in the years since its
representations to the City for Tualatin’s water/wastewater is not relevant to the representations
Open made regarding functionalities for five different utilities for the City two years prior.
Even if minimally relevant, courts across the country routinely exclude this type of
bolstering evidence pursuant to F.R.E. 404(b) because it is being offered only to induce the jury to
conclude that because Open later had a “successful” implementation with Tualatin, it is unlikely
that it made material misrepresentations to the City or breached the agreements with the City. Such
evidence is improper. See Linkepic Inc. v. Vyasil, LLC, 2019 U.S. Dist. LEXIS 236857, at *9-10
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(N.D. Ill. Oct. 15, 2019) (excluding evidence of the defendant’s performance for an unrelated
website because such evidence was inadmissible good character evidence under Rule 404(b)); IDX
Sys. Corp. v. St. John Health Sys., 2003 U.S. Dist. LEXIS 28090, at *29 (E.D. Mich. Mar. 28,
2003) (excluding evidence of problems in “different implementations with [the party’s] other
customers, since it is not relevant, is inadmissible character and bad acts evidence and hearsay
with no exceptions. The focus is this contract at issue and not other contracts by [the party] with
other customers. Those are collateral matters.”); see also In re Davol, Inc./C.R. Bard, Inc.,
Polypropylene Hernia Mesh Prods. Liab. Litig., 510 F. Supp. 3d 538, 546 (S.D. Ohio 2020)
(excluding defendant’s prior good acts because they were unrelated to the development of its
devices at issue in the case); Ansell v. Green Acres Contracting Co., 347 F.3d 515 (3d Cir. 2003)
(concluding that evidence of subsequent good acts is “encompassed by the plain text of Rule
404(b) which addresses ‘other . . . acts,’ not just prior bad acts”).
Further, any probative value this evidence may have is substantially outweighed by the
dangers of unfair prejudice, confusing the issues, misleading the jury, and wasting time. See Fed.
R. Evid. 403. Open’s implementation with Tualatin is not comparable to the implementation with
the City. Tualatin only required a system to support its water and wastewater service on a cloud-
based platform. See Ex. 2 at 33:3-34:7. The City, on the other hand, required a fully integrated and
on-site system to support the City’s five utilities, including a non-traditional telecommunications
utility. See Dkt. 192, at ¶ 20. In other words, the City’s project with Open was far more complex
than Tualatin’s. If Open is permitted to submit such evidence, the City will be required to put on
significant evidence to demonstrate the distinction between the two projects, creating “mini trials”
on issues irrelevant in this case. See Brown v. AMTRAK, 2020 U.S. Dist. LEXIS 248953, at *2 (D.
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Colo. Nov. 12, 2020) (“The danger of ‘confusion of the issues’ and ‘misleading the jury’ arises
when circumstantial evidence would tend to sidetrack the jury into consideration of factual
disputes only tangentially related to the facts at issue in the current case.”) (quotations omitted).
Thus, evidence of Open’s performance thereunder is inadmissible and should be excluded.
II. Evidence Concerning the City’s Purported Misuse of Appropriated Funds in
Violation of a Criminal Statute Should be Excluded.
During several hearings, Open’s counsel has claimed, without any evidence, that the City
misused appropriated funds to pay third-party vendors on the project. For instance, at the July 10,
2023 pretrial conference with this Court, Open’s counsel stated that “there’s a statute in Colorado
that makes it an – under the criminal code an offense for a municipality to spend money that hasn’t
been appropriated for a project” and that Open had “found documents supporting this, that the
[C]ity took money specifically appropriated for . . . Open, and then tried to move it around as soon
as it terminated Open in a way that made, they thought, a judgment uncollectible for Open.” Ex.
3, July 10, 2023 Hearing Tr., at 10:4-10:12. Open, however, has not asserted any claims against
the City for fraud or misuse of appropriated funds in this case, and no one at the City has ever been
indicted (or even investigated) for a violation of a criminal statute or code based on these issues.
If Open truly had any evidence, there would at least be an investigation. There is none. Simply,
Open’s rank speculation is not relevant, and the Court should exclude any argument or testimony
relating to any alleged misuse of appropriated funds by the City. See Fed. R. Evid. 401.
Even if there was some trace of probative value, which none exists, accusations that the
City committed a crime, violated a criminal statute, or otherwise used improper acts to misuse
appropriated funds or otherwise defraud Open of appropriated funds is highly and unfairly
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prejudicial 2 substantially outweighing any arguable probative value. Accusing the City of such
crimes and actions, especially without any evidence, to a jury (that includes taxpayers) is bound to
taint the jury against the City and cause the jury to react emotionally. The evidence would further
confuse the jury because there is no such claim at issue and there has been no independent finding
or investigation into Open’s baseless allegations. See Brown, 2020 U.S. Dist. LEXIS 248953, at
*2. Indeed, Open’s only claim is for breach of contract. Open’s allegations do not relate to or
support its sole remaining claim. The jury is, therefore, not tasked with making such a decision
and the testimony only serves to significantly prejudice the City.
Moreover, testimony concerning opinions about local and state appropriation statutes and
regulations requires expert testimony. See James River Ins. Co. v. Rapid Funding, Ltd. Liab. Co.,
648 F.3d 1134, 1143 (10th Cir. 2011) (testimony based on scientific, technical, or other specialized
knowledge must be scrutinized under the rules regulating expert opinion); Johana Paola Beltran
v. InterExchange, Inc., 2018 U.S. Dist. LEXIS 80378, at *16 (D. Colo. May 14, 2018) (finding
that the lay expert could not testify to his knowledge of the regulatory or statutory scheme because
the testimony was based on specialized knowledge). Open not only has zero evidence supporting
its allegations, but it has neither the specialized knowledge nor a designated expert (or individual)
with specialized knowledge to testify to its baseless allegations.
Thus, any evidence referencing or relating to the City’s purported violation of a criminal
code or other misuse of appropriated funds to pay third-parties on the project should be excluded.
III. Jeff Valadez Should Be Stricken as a Witness Absent a Deposition Prior to Trial.
2 Unfair prejudice means “an undue tendency to suggest the jury make a decision on an improper basis,
commonly, though not necessarily, an emotional one.” Stump v. Gates, 211 F.3d 527, 534 (10th Cir. 2000).
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One of the primary purposes of discovery is to “make a trial less a game of blind man’s
bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable
extent.” United States v. Proctor & Gamble Co., 356 U.S. 677, 682 (1958); see also Dunlap v.
City of Okla. City, 12 F. App’x 831, 834 (10th Cir. 2001) (“One clear purpose of the federal
discovery rules is to facilitate fact finding and prevent unfair surprise.”) (citing Fed. R. Civ. P. 26).
Open has identified Jeff Valadez, its former head of sales for North America, as a “may
call” witness to “rebut” any witness called by the City. See Dkt. 230 at 30. This listing is subject
to Judge Hegarty’s prior discovery hearing order. When the City attempted to schedule Mr.
Valadez’s deposition in August 2022 (immediately upon learning in another deposition about the
significance of his role), counsel for Open indicated that Mr. Valadez was no longer employed
with Open, that he lived in Colombia, and that while Open’s counsel now also represented Mr.
Valadez, counsel would not be accepting service of Mr. Valadez’s deposition subpoena. Ex. 4,
Aug. 11, 2022 Email at 1-2. On Aug. 12, 2022, the parties addressed this issue with Magistrate
Judge Hegarty. Judge Hegarty, understanding the equity issue of Open’s/Mr. Valadez’s counsel
refusing to accept service of the subpoena but then later identifying Mr. Valadez as a trial witness
for Open, confirmed that the City “would get a remote deposition ahead of time” if Open would
be bringing Mr. Valadez to trial and that otherwise he “would recommend striking [Mr. Valadez]
as a witness.” Ex. 5, Aug. 12, 2022 Hearing Tr., at 46:12-18; see also generally id. at 39:6-45:18.
Open, recognizing that it is bound by Judge Hegarty’s Order, has agreed that it would
provide Mr. Valadez’s deposition but seeks to only permit the deposition to take place if and when
Open actually decides to call Mr. Valadez on rebuttal during the course of the trial and to
artificially limit the scope of the deposition to only on “issues on which he would give rebuttal
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testimony.” This is inadequate. The Court should strike Mr. Valadez as a “may call” witness on
Open’s list—as contemplated by Judge Hegarty—should Open refuse to provide his deposition
prior to trial. Even if “ahead of time” might include a deposition during the trial and just before
Open’s rebuttal presentation and at the time Open decides to actually call Mr. Valadez as witness,
there is no reason to create that hardship when we know of the issue now, well in advance. Indeed,
a deposition prior to trial would avoid inefficiencies, delays, and interruptions during trial—such
as requiring that certain trial counsel double set a deposition over trial and miss portions of trial.
As to the scope of the deposition, this sets the stage for wasteful disputes regarding whether
a topic or question is related to hypothetical testimony. It is simply unworkable. And, Open may
not dictate the scope of issues Mr. Valadez may testify to. Indeed, Judge Hegarty previously
emphasized “the point is . . . whether [Mr. Valadez] has relevant information that would help prove
your case” and that this was the “bottom line for whether [the City] get[s] his deposition or not.”
Id. at 44:15-18. The City would also need to explore issues relevant to Mr. Valadez’s credibility,
which may or may not relate directly to the hypothetical rebuttal testimony.
Should Open maintain Mr. Valadez as a “may call” witness, this Court should order his
deposition no later than 14 days from its order on all issues relevant to the claims and defenses.
Otherwise, this Court should strike Mr. Valadez as previously stated by Judge Hegarty.
CONCLUSION
The City respectfully requests that the Court exclude: (1) evidence relating to Open’s
contract with Tualatin and Open’s performance thereunder; (2) testimony relating to or referencing
any allegations that the City improperly used appropriated funds to pay third-parties on the project;
and (3) Jeffery Valadez as a witness, absent a deposition ahead of trial on all claims and defenses.
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Respectfully submitted this 8th day of September, 2023.
DORSEY & WHITNEY LLP
s/ Maral J. Shoaei
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 September 8, 2023 I caused the foregoing document to be electronically filed via CM/ECF system which will send notification of such filing to all counsel of record.
s/ Stacy Starr
DORSEY & WHITNEY LLP
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Exhibit 1
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EXHIBIT
Exhibit 800
DECLARATION OF THOMAS HICKMANN
I, Thomas Hickmann, am over the age of eighteen and I make this declaration pursuant to
28 U.S.C. § 1746, based upon my personal knowledge of the facts and circumstances stated
herein:
1. I am the Chief Executive Officer of Tualatin Valley Water District ("TVWD"),
and I have served in that role since August 1, 2019.
2. From late fall 2019 through summer 2022, 1 worked regularly with Open
International, LLC ("Open") to implement Open's Smartflex (version 8) product for the water
and wastewater utilities that TVWD and its partner utility Clean Water Services ("CWS")
provide.
3. TVWD is a unit of local government organized and operating under Oregon law
that provides all aspects of potable water delivery and bills water and wastewater services to
more than 250,000 residents—commercial and residential—in the unincorporated area of
Washington County and portions of the cities of Beaverton and Hillsboro, all in the Portland,
Oregon metropolitan area ("TVWD Service Territory").
4. TVWD has been providing these potable water services in this region for 100
years.
5. CWS is a separate unit of local government organized and operating under
Oregon law that provides all aspects of wastewater and surface water management services to its
own customers—more than a half-million of them, which includes the TVWD Service Territory.
Open_IntI_00357584
I
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6. For over 20 years, TVWD has coordinated billing services for both itself and
CWS for their joint customers, first through a homegrown customer-information system ("CIS")
and now through Smartflex.
7. In September 2019, in accordance with Oregon public contracting laws, TVWD
and CWS launched a public Request for Proposal ("RFP") process for a CIS vendor to support
their water and wastewater services.
8. Throughout the selection process and the implementation of the new CIS, TVWD
took the lead role with support, participation and agreement from CWS.
9. Out of the large set of initial responses to the RFP, TVWD and CWS narrowed
the contenders to three or four.
10. After additional narrowing, we conducted multi-day onsite confirmation sessions
with two finalists, one of which was Open International.
11. These confirmation sessions were intended to demonstrate the finalists' products
and allow us to assess the extent to which the products fulfilled the functional requirements that
those two vendors' RFP responses had stated their respective products could meet.
12. I personally participated in those sessions, and I was very impressed by the
Smartfiex product. I saw the potential it provided to grow with TVWD and CWS—in terms of
both customer numbers and offerings—because it is configurable by TVWD and CWS to meet'
the changing needs over time. Most CIS do not provide that configurability.
13. As we were going through the selection process, we were aware that Open was
working with Fort Collins. As part of our due diligence process, TVWD personnel spoke with
employees of Fort Collins about that City's implementation with Open, and I authorized TVWD
-2-
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personnel to visit Fort Collins for an onsite review of that project in 2019. When they reported
back, TVWD personnel had not learned anything from Fort Collins personnel regarding their
project that raised concern about working with Open.
14. In fact, Fort Collins told me directly they were pleased with Open. I spoke with
two individuals from Fort Collins in fall 2019 at a business conference, and they told me they
were very excited about working with Open and happy with Open's performance more than a
year into their project. That included the launch of their new broadband service, which they said
was successful. I told them TVWD was excited to be Open's second customer.
15. TVWD and CWS selected Open in early 2020 because, among other reasons,
Open demonstrated the best technological offerings and configurability of the proposals we
received; Open provided robust and ongoing development, maintenance, and support options;
and Open brought to the project a candid and professional team.
16. In addition to selecting a standout CIS implementation partner, I laid groundwork
to ensure that TVWD and CWS were prepared to support that implementation from the customer
side.
17. In my career, I have worked on five other large-scale, public-entity software
implementations, and I have seen the effects of understafling and under-budgeting from the
customer's team, and I knew the risks of proceeding on a project without the necessary resources
in place—not just delay, but an expensive failure.
18. Working with our CIS consultant, AAC Consulting ("AAC"), the TVWD/CWS
team determined that we should plan 18 to 19 months for the implementation and should
dedicate significant full-time and part-time resources to the project.
-3-
Open_IntI_00357586
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19. Throughout the implementation process, AAC also provided guidance for shaping
the RFP; for assembling, refining, and tracking the roughly 1,700 functional requirements that
Open agreed to satisfy; and ultimately for managing the project on a day-to-day basis on our
behalf. TVWD and CWS also retained AAC's CIS-implementation specialist Andy Krugman to
serve as their full-time project manager throughout the project. In my opinion it would have been
very difficult to complete the project without his expertise.
20. Even with AAC in place, I knew TVWD and CWS had to dedicate their own full-
time staff to carry out the scoping, data conversion and migration, configuration, integration, and
testing work that a complex CIS-implementation requires of the utility.
21. To ensure that TWVD and CWS consistently met the staffing-resource needs of
the project, I closely monitored staffing levels through weekly assessments with Open, AAC, and
the TVWD customer-service and IT directors; I also coordinated "back-filling" of the project-
staffs normal utilities roles to ensure their full dedication to the project, and I ensured that AAC
had available bench strength to backstop our team if people left during the project.
22. For the bulk of the project, we had 15 or 16 TVWD personnel who were
committed to project work—about half of those full time, and the other half often flexed to full
time during periods of peak activity.
23. CWS also assigned a couple of full-time staff resources.
24. Even with these dedicated full-time and flex personnel, TVWD could not have led
this unique project without the additional bandwidth and expertise of a CIS-implementation
specialist like AAC.
-4-
Open_IntI_00357587
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25. Based on my experience, when implementing something this technical, utilities
like TVWD and CWS need someone with implementation experience—not just CIS experience.
26. For example, AAC helped TVWD and CWS adopt business processes to align
with Smartflex and to develop test cases to ensure that Smartflex was properly configured to
meet the functional requirements of our project and the business needs of our utilities.
27. .AAC also facilitated project governance, tracked timelines, and helped drive
decision-making so that the project proceeded on schedule.
28. Moreover, AAC ensured that our utilities staff and Open's software-
implementation staff understood both sides' needs and responsibilities, even while AAC
represented TVWD and CWS's interests and advocated for us to ensure we got a successful
outcome.
29. During the implementation, Open's team was uniformly well-staffed with a deep
bench of professionals.
30. Despite Open's traditional focus in Latin American markets, to my knowledge
TVWD did not experience problems with language bathers and I am not aware of any Spanish-
language artifacts or English-language translation problems arising in Smartflex at or after go-
live (and I was concerned about this).
31. 1 With those resources in place and support from AAC and Open, TVWD and CWS
were equipped to perform the planning, data migration, configuration, integration, and testing
activities required to go live on time this summer, 19 months after implementation began, despite
the challenges that COVID- 19 had posed almost from Day 1.
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Open_I ntl_00357588
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32. For its part, Open delivered what it promised and was a trusted partner throughout
the implementation. They were clear in their communications throughout the entire process and
never said anything that they didn't live up to.
33. The go-live and stabilization process have gone very smoothly—to my
knowledge, there have been no show-stoppers and no billing errors attributable to Open or its
product, nor am I aware of any unusual volume of customer-service calls to TVWD or CWS
during the go-live and stabilization process. I personally have received zero complaints. We did
have some billing errors that were the result of TVWD's data migration and integration
configurations but they were not significant and quickly resolved with Open's help.
34. The live system includes Smartflex's integrated self-service portal that more than
15,000 of TVWD/CWS customers have already registered for and begun using to manage their
accounts and services autonomously. That number is growing every week.
35. This was by far the smoothest implementation, with the most comprehensive
financial and billing system, that I have worked with.
36. Smaitfiex successfully went live at TVWD and CWS on July 3, 2022.
37. Throughout the project, Open treated TVWD and CWS as partners, and adopted
their project and challenges as Open's own.
38. If I had to do it all over, TVWD would have no reservations to choose Open
again.
39. I understand that the City of Fort Collins filed a lawsuit against Open in mid-July
2021 because they claim, among other things, that Open misled Fort Collins into believing
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Open_IntI_00357589
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Smartflex would be delivered complete out-of-the-box, plug-and-play, but got a CIS that doesn't
work.
40. I was deeply concerned when I learned that summer about the problems the City
of Fort Collins claims it experienced, and I carefully considered whether Fort Collins's alleged
problems with Open reflected risks to TVWD and CWS's project with Open.
41. But as part of assessing the situation, I also learned that Fort Collins had lost
multiple, significant leaders for their project and a lot of support staff:
42. Based on my experience in large and significant projects, a public entity needs
internal and external resources that overlap and ensure continuity of strategy and effort. Loss of
key people on any project like a CIS implementation can easily lead to failure.
43. For this reason, I believed the Fort Collins situation was not comparable to
TVWD's and retained confidence in Open. I became less concerned that Fort Collins' failure
was a problem caused by Open.
44. But even more important in my view, the owners of Open, William Corredor and
Hernando Parrott, were forthcoming and transparent and they were quick to answer my hard
questions.
45. From top to bottom, start to finish, Open was honest and transparent.
46. So TVWD and CWS stayed with Open and successfully went live with Smartflex
three months ago.
47. Open hit every milestone and every performance metric. Its team and its product
fully delivered for us.
-7-
Open_IntI_00357590
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Edeclare under pen
knowledge.
V f perjury that the foregoing is true and correct to the best of my
Executed on the /7day of
October, 2022
at Oregon
thorha Hickrnann
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Open_IntI_00357591
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Exhibit 2
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Thomas Hickmann - December 12, 2022
1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
2
Civil Action No.: 21-cv-02063-CNS-MEH
3
CITY OF FORT COLLINS,
4
Plaintiff/Counterclaim Defendant,
5
vs.
6
OPEN INTERNATIONAL, LLC,
7
Defendant/Counterclaim Plaintiff,
8
and
9
OPEN INVESTMENTS, LLC,
10
Defendant.
11 _____________________________________________________
12 REMOTE VIDEOTAPED DEPOSITION OF
13 THOMAS HICKMANN
14 December 12, 2022
_____________________________________________________
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Veritext Legal Solutions
303-988-8470
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Thomas Hickmann - December 12, 2022
1 P R O C E E D I N G S
2 THE VIDEOGRAPHER: Good morning. We
3 are going on the record at 7:03 a.m. Pacific Time on
4 December 12th, 2022. Please note that this
5 deposition is being conducted virtually. Quality of
6 recording depends on the quality of camera and the
7 Internet connection of participants. What is seen
8 from the witness and heard on the screen is what will
9 be recorded.
10 Audio and video recording will continue
11 to take place unless all parties agree to go off the
12 record. This is Media Unit 1 of the video-recorded
13 deposition of Thomas Hickmann taken by counsel for
14 plaintiff in the matter of City of Fort Collins
15 versus Open International, LLC, et al., filed in the
16 United States District Court for the District of
17 Colorado. Case Number 21-cv-020632-CNS-MEH.
18 This deposition is being held remotely
19 via Zoom. My name is Jerry DeBoer representing
20 Veritext Legal Solutions, and I'm the videographer.
21 The court reporter is Jennifer Windham for the firm
22 of Veritext Legal Solutions. I am not related to any
23 party in this action, nor am I financially interested
24 in the outcome.
25 Counsel and everyone attending remotely
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Thomas Hickmann - December 12, 2022
1 will now state their appearances and affiliations for
2 the record. If there are any objections to
3 proceeding, please state them at the time of your
4 appearance, beginning with the noticing attorney.
5 MR. COLLARD: This is Case Collard of
6 Dorsey & Whitney representing the City of Fort
7 Collins. With me today I also have John Duval of the
8 City Attorney's Office of the City of Fort Collins.
9 MR. SWANSON: Paul Swanson from the law
10 firm of Holland & Hart on behalf of defendants and
11 counterclaimant Open International and Open
12 Investments. And I note on the record that we have
13 an agreement to a three-and-a-half-hour limit for
14 this deposition.
15 MR. COLLARD: Agreed.
16 MR. BALFOUR: I'm Clark Balfour. I'm
17 general counsel for Tualatin Valley Water District
18 here with Mr. Hickmann.
19 THE REPORTER: Does everyone agree that
20 I can swear in the deponent remotely?
21 MR. COLLARD: Yes.
22 THE REPORTER: Mr. Swanson, I think you
23 said yes?
24 MR. SWANSON: Agreed.
25
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Thomas Hickmann - December 12, 2022
1 THOMAS HICKMANN,
2 having been first duly sworn, was examined and
3 testified as follows:
4 EXAMINATION
5 BY MR. COLLARD:
6 Q. Good morning, Mr. Hickmann. Can you
7 hear me okay, first of all? I just want to make sure
8 our connection is okay.
9 A. I can hear you just fine. Thank you.
10 Q. Okay. Great. If we ever have a
11 technical issue, and there's a pretty good chance we
12 might. If you can't hear me, if the court reporter's
13 connection drops off or something like that, you
14 know, you can tell me to stop. I may tell you to
15 stop. Jerry, the videographer, may tell us both to
16 stop. So we just have to be a little flexible with
17 Zoom, but hopefully it will all go smoothly. But if
18 anything technical comes up, let us know so we can
19 fix it.
20 A. Sure.
21 Q. While I'm on technical issues, I'm
22 going to share my screen with you today to look at
23 some documents. They're probably documents that
24 you've seen before or not. They're not super
25 lengthy. You're welcome to look through the document
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Thomas Hickmann - December 12, 2022
1 we were certainly interested in some of the other
2 aspects of what else the software could do.
3 Q. Let me ask a different question. Does
4 Tualatin Valley provide electricity to its consumers?
5 A. No, it does not.
6 Q. Does it provide broadband services or
7 cable TV?
8 A. No, it does not.
9 Q. Does it provide water?
10 A. Yes.
11 Q. Does it handle wastewater?
12 A. No, it does not.
13 Q. Does it handle storm water?
14 A. No, it does not.
15 Q. Other than providing water, does it
16 provide any other services to its customers --
17 A. No.
18 Q. -- for which it bills?
19 A. No, it does not.
20 Q. So there is really -- so there's a
21 single utility service, water, for which this system
22 needed to be able to bill?
23 A. That's not -- I mean we do -- we do all
24 of the billing for Clean Water Services, which is
25 wastewater and storm water.
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1 Q. Okay. We're getting closer. So the
2 billing system needed to handle three different
3 billable services: water, wastewater and storm water;
4 is that correct?
5 A. That is the essence, yes.
6 Q. Am I missing something?
7 A. Well, there's -- there's certainly
8 nuances there of, like, customer care programs built
9 within it. But as far as essential services, base
10 services, you are correct.
11 Q. Those are the services for which you
12 need to collect money from customers for those three
13 services, right?
14 A. Correct.
15 Q. Do you have any experience with billing
16 services for electricity?
17 A. No, I do not, not directly, no.
18 Q. Do you have any experience with billing
19 services for broadband?
20 A. No, I do not.
21 Q. For any sort of telecom?
22 A. No, I do not.
23 Q. Do you know if adding those services to
24 a billing project, electricity and broadband
25 specifically, make the project more complex?
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1 A. I would have no way of knowing that.
2 Q. Do you know whether or not -- I'm
3 sorry. Let me go back a step. Was the system that
4 Tualatin Valley was seeking going to be on premises
5 in servers on location, or was it going to be in the
6 cloud?
7 A. It was cloud-based services.
8 Q. Do you know if there is a difference in
9 the complexity of an installation for an on-premises
10 installation versus a cloud implementation for a
11 billing service?
12 A. All I could answer is that there are
13 different complexities. I don't know to what extent.
14 Q. You don't have any expertise or
15 experience in that?
16 A. No, I do not.
17 Q. I have to also clarify something. I
18 think I understand it a little better now based on
19 what you've discussed. But CWS, you said, has half a
20 million customers and Tualatin Valley has 250,000
21 residents. Is that because you only serve a subset
22 of the CWS customer base?
23 A. That is correct, yes.
24 Q. How many meters does Tualatin Valley
25 actually handle?
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1 right?
2 MR. SWANSON: Objection, form.
3 A. To the best of my knowledge, that was
4 not.
5 Q. (BY MR. COLLARD) So you weren't dealing
6 with a product that was still in development and not
7 released yet, you weren't dealing with on premises,
8 you weren't dealing with electricity or broadband on
9 your project, were you?
10 MR. SWANSON: Objection, form.
11 A. That is correct.
12 Q. (BY MR. COLLARD) Let's go to paragraph
13 15 here that's up on the screen. Can you see that?
14 A. Yes.
15 Q. You say that Open demonstrated the best
16 technological offerings. Do you see that?
17 A. I do.
18 Q. What -- how do you know that they
19 demonstrated the best technological offerings?
20 A. Well, first they competed and went
21 through a selection process by -- that was attended
22 by a number of staff as well as E Source that looked
23 at what all of the vendors were offering. We then
24 had them -- there was a short list. I don't remember
25 if it was two or three candidates. I recall two of
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1 quarterly billing, so I can't say that.
2 Q. (BY MR. COLLARD) Well, let's try it a
3 different way. The Tualatin billing needs are
4 different from an entity that needs to send
5 consolidated monthly bills across five utilities,
6 including electricity and broadband?
7 A. Different than that, yes.
8 Q. And another difference between the
9 projects is that one was on premises and one was in
10 the cloud; is that fair to say?
11 A. That is fair to say.
12 Q. And then another difference between the
13 projects is that Tualatin had a 19-month timeline for
14 implementation and the Fort Collins timeline was
15 13 months. So that would be a pretty significant
16 difference, right?
17 MR. SWANSON: Objection, form.
18 A. Yes. But we did try to get to a faster
19 implementation schedule.
20 Q. (BY MR. COLLARD) If Open had told you
21 that they wanted to do this in 13 months, would that
22 have concerned you?
23 A. I'm drawing on my memory here. There
24 was a point when we were discussing this timeline
25 issue. And Open was saying they could do a faster
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-02063-CNS-SP
CITY OF FORT COLLINS,
Plaintiff,
vs.
OPEN INTERNATIONAL, LLC, and OPEN
INVESTMENTS, LLC,
Defendants.
REPORTER'S TRANSCRIPT
Final Pretrial Conference
Proceedings before the HONORABLE CHARLOTTE N. SWEENEY, Judge,
United States District Court for the District of Colorado,
commencing on the 10th day of July, 2023, in Courtroom A702,
United States Courthouse, Denver, Colorado.
APPEARANCES
For the Plaintiff:
CASE L. COLLARD and ANDREA A. WECHTER and MARAL SHOAEI, Dorsey
& Whitney LLP, 1400 Wewatta St., Ste. 400, Denver, CO 80202
JOHN R. DUVAL, Fort Collins City Attorney's Office, P.O. Box
580, Fort Collins, CO 80522
For the Defendants:
PAUL D. SWANSON and ALEXANDRIA E. PIERCE and ALEXANDER D.
WHITE, Holland & Hart LLP, 555 17th St., Ste. 3200, Denver, CO
80201
Sarah K. Mitchell, RPR, CRR, 901 19th Street, Room A252,
Denver, CO 80294, 303-335-2108
Proceedings reported by mechanical stenography;
transcription produced via computer.
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21-cv-02063-CNS-SP Pretrial Conference 07/10/2023
* * * * *
(The proceedings commenced at 1:00 p.m.)
THE COURT: We're here for a pretrial conference in
21-cv-2063, City of Fort Collins v. Open International. May I
have entries of appearance, please.
MR. COLLARD: Good afternoon, Your Honor. My name is
Case Collard from Dorsey & Whitney representing the City of
Fort Collins. And then with me today I have my partner Andrea
Wechter and my colleague Maral Shoaei. From the City of Fort
Collins we have Deputy City Attorney John Duval. And then we
have a summer associate with us, with Dorsey, here today to
observe. Her name is Kristina Maude.
THE COURT: Good afternoon to you all.
MR. SWANSON: Good afternoon, Judge. Paul Swanson
from Holland & Hart on behalf of the Open defendants, and I'm
joined by my colleague Alex White and my colleague Alex
Pierce.
THE COURT: Thank you all for being here. Let's take
a look through the pretrial order. For the most part it's
fine. I think in the future it might be helpful to kind of
pare down the claims and defenses, but I'm not going to have
you redo it, but it's a little lengthy. Let's turn to page 34
which is where I had the first thing I wanted to talk about
which is some individuals you've identified that might be
called by deposition. Each of you have listed four or five
Sarah K. Mitchell, RPR, CRR
2
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21-cv-02063-CNS-SP Pretrial Conference 07/10/2023
grand because that's all that's been appropriated so that's
the most damages you can find. Fine. We accept the ruling,
and if we disagree with it down the road, we'll have whatever
appeal rights we have. That's fine. But we're prepared to
try it under your ruling.
I don't think that it gets to a broader question of
collectability, which is what Mr. Swanson was getting towards
to say, Okay, they get a judgment for whatever they're asking
for, $3 million, is that collectible based on the
appropriations law? That's not been addressed, and I don't
think that that needs to be addressed now, Your Honor,
honestly. I think that's something that would be post-verdict
if there was a verdict that was trying to be collected.
THE COURT: On that latter issue I think you're in
agreement, because you're agreeing there's other ways of going
about that, by statute or levy or anything you need.
MR. SWANSON: And that's right. That's not something
that the factfinder needs to resolve.
THE COURT: But let's go back to this first issue,
because that's the first time I heard it, which is why I
wanted a response. This idea of kind of moving money around
or hiding through an appropriation, I hadn't heard that in the
case before. Did you all argue this in front of Judge Prose?
MR. COLLARD: No.
THE COURT: Okay.
Sarah K. Mitchell, RPR, CRR
9
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21-cv-02063-CNS-SP Pretrial Conference 07/10/2023 10
MR. SWANSON: We did, Your Honor. Not to directly
contradict Mr. Collard, but that was a key portion of what we
were saying was important to this deposition. And to add to
this moving around concept, there's statute in Colorado that
makes it an --under the criminal code an offense for a
municipality to spend money that hasn't been appropriated for
a project. That's part of what the city has argued, and we
believe and we've found documents supporting this, that the
city took money specifically appropriated for an encumbered,
for Open, and then tried to move it around as soon as it
terminated Open in a way that made, they thought, a judgment
uncollectible for Open. So we think that that's a live and
important issue to be able to present based on what we find at
the deposition.
MR. COLLARD: Your Honor, may I briefly respond?
THE COURT: Yes.
MR. COLLARD: There's two or three things here. One
is in the dispute with Judge Prose, they said they --the depo
was never at issue. Our position has been since the depo was
ordered, I think by Judge Hegarty previously, please take the
depo. It was ordered in March, and we said, Come take the
deposition. They had all these complaints about, Give us more
documents, more documents. And we said, We've given you
everything. Come take the deposition, and you'll see. And
they said, No, we want more documents. So that's the piece of
Sarah K. Mitchell, RPR, CRR
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REPORTER'S CERTIFICATE
I, SARAH K. MITCHELL, Official Court Reporter for the
United States District Court for the District of Colorado, a
Registered Professional Reporter and Certified Realtime
Reporter, do hereby certify that I reported by machine
shorthand the proceedings contained herein at the time and
place aforementioned and that the foregoing pages constitute a
full, true and correct transcript.
Dated this 18th day of July, 2023.
/s/ Sarah K. Mitchell
SARAH K. MITCHELL
Official Court Reporter
Registered Professional Reporter
Certified Realtime Reporter
Sarah K. Mitchell, RPR, CRR
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Exhibit 4
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From:Collard, Case
To:hegarty_chambers@cod.uscourts.gov
Cc:Shoaei, Maral; Alex D. White; Alex E. Pierce; Marcy Weaver; Anne Tupler; Paul D. Swanson; Wechter, Andrea;
John Duval (jduval@fcgov.com)
Subject:City of Fort Collins v. Open International LLC et al (21-cv-02063-CNS-MEH) - Request for hearing on discovery
disputes
Date:Thursday, August 11, 2022 2:27:50 PM
Attachments:image001.png
Dear Magistrate Judge Hegarty,
Per Your Honor’s Practice Standards, I am writing on behalf of the City of Fort Collins (“the City”) in
the above-captioned case to respectfully request a conference concerning the parties’ discovery
disputes. Because these disputes impact depositions that may occur next week, we request your
urgent attention to these issues. All counsel of record are copied on this email.
Briefly, the City seeks resolution of the following discovery disputes:
• Defendants’ refusal to make their Rule 30(b)(6) deponents available in Denver—the
jurisdiction to which the contractually agreed, removed the case, and filed
Counterclaims: Defendants contractually agreed to Colorado as the venue for all
disputes with the City, removed this case to this District from Larimer County, and filed
Counterclaims against the City. As Counterclaim Plaintiffs, Open representatives are
expected to appear for its deposition in this forum “absent extreme hardship.” Srebnik
v. Dean, 2006 U.S. Dist. LEXIS 41070, (D. Colo. June 20, 2006). Defendants have
consented to participation in legal proceedings in this district, including depositions.
Defendants have stated that they do not intend to make their two expected Rule 30(b)
(6) designees available in Denver and are currently only offering to permit Defendants’
Rule 30(b)(6) deposition either remotely or in Miami. The City seeks an order requiring
them to appear in Denver.
• Coordination of Certain Depositions to align with Defendants’ Rule 30(b)(6)
Deposition for Efficiency: At the last hearing with this Court, the Court ordered that the
depositions of two representatives of Defendants that were set to take place in Miami
be reset following a positive Covid test. The parties were conferring regarding resetting
the depositions to August 18th and 19th. However, before finalizing the dates and during
conferral on August 9th, counsel for Defendants stated (for the first time) that those
same two individuals would likely be the two designees for Defendants’ Rule 30(b)(6)
deposition. On the same call, the City immediately suggested that o promote efficiency,
the personal and corporate representative depositions of the individuals be coordinated
(whether in Denver or in Miami, pending resolution of the dispute identified above)
since the two individual deponents are the same two likely Rule 30(b)(6) designees and
as this scheduling would avoid two separate trips between Denver and Miami, whether
by counsel or the witnesses. Defendants refuse to coordinate and state they will only
present the witnesses in their personal capacity in Miami on August 18 and 19.
• Deposition of non-party Jeff Valadez: In July, Mr. Valadez left the employment of
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Defendants but no supplemental disclosure was provided by Defendants identifying the
same. During a deposition on Friday, August 5th, the City discovered that during his
employment Mr. Valadez was “leading all of the [sic] commercials or sales effort in North
America…” on Open’s behalf and that he was the person responsible for addressing “any
questions or feedback” that Open needed from the City in order to adjust the timeline it
proposed to the City (or any client). On Monday August 8th, the City requested Mr.
Valadez’s deposition to Defendants’ counsel, asking whether Defendants’ counsel
represented him and could provide his location and availability. On August 9th,
Defendants’ counsel informed the City’s counsel that he did not represent Mr. Valadez
but that Open would object to any deposition of Mr. Valadez as untimely under Rule
30(b)(1) because the request was made less than 14 days before the current discovery
deadline of August 19th. But immediately after the hearing, counsel spoke and
informally agreed to extend deposition discovery a reasonable amount of time to
accommodate the remaining depositions and the Parties have been setting depositions
into September. On August 10th, Defendants’ counsel informed the City’s counsel that
he now represents Mr. Valadez, that he is in Colombia, and that he would not accept
service of any deposition subpoena.
• Defendants’ refusal to respond to written discovery requests: On July 20, 2022, the
City served its third set of interrogatories, second set of requests for production of
documents, and first set of requests for admissions on Defendants—30 days before the
current discovery cut-off date of August 19, 2022. On August 5, 2022, Defendants
advised that they will not be responding to the City’s requests because they were not
served 45 days in advance of the discovery cut-off date. The original scheduling order
[Dkt. 21] listed a specific date for the service of written discovery (April 11, 2022) which
was 45 days prior to the then-scheduled close of fact discovery. However, the
subsequent amended scheduling orders—including the February 28, 2022 Minute Order
[Dkt. 37] and the May 16, 2022 Minute Order [Dkt. 42]—amended the discovery
deadlines and do not mention a 45-day deadline by which to serve discovery nor set a
date by which discovery must be served. It is the City’s position that it timely served the
requests within the discovery period under the Rules and Open must respond.
For both the Valadez and written discovery disputes, the requested discovery is within the limits
agreed by the parties and set by the Court. Counsel for Open did not identify prejudice beyond the
black-letter of the schedule. With the pre-trial conference set for April 14, 2023 [Dkt. 93] there is
adequate time to complete the above discovery.
Please let us know if there is any information either party may be able to provide at this time or
before the conference for Your Honor’s review/consideration.
Thank you,
Case Collard
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Case L. Collard
Partner
Pronouns: He/Him/His
DORSEY & WHITNEY LLP
1400 Wewatta Street, Suite 400 | Denver, CO 80202-5549
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