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Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 247 - Terminated Motion IN 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. PLAINTIFF CITY OF FORT COLLINS’ PARTIALLY UNOPPOSED MOTION TO ALLOW THE REMOTE VIDEO TESTIMONY OF (1) MICHELLE FREY, PHD AND (2) COLMAN KEANE Plaintiff, the City of Fort Collins (the “City”), by and through its undersigned counsel, hereby respectfully moves this Court for an Order allowing the remote testimony of: (1) Michelle Frey, PhD and (2) Colman Keane. CERTIFICATION PURSUANT TO D.C.COLO.L.CivR 7.1 Counsel for the City conferred with counsel for Defendants Open International, LLC and Open Investments, LLC’s (jointly “Open”). Open does not oppose the remote trial testimony of Michelle Frey, PhD; however, Open does oppose the remote trial testimony of Colman Keane. ARGUMENT 1. Pursuant to Fed. R. Civ. P. 43(a), the court may permit remote witness testimony Case No. 1:21-cv-02063-CNS-SBP Document 247 filed 09/22/23 USDC Colorado pg 1 of 7 2 “for good cause and in compelling circumstances and with appropriate safeguards.” Fed. R. Civ. P. 43(a). Similarly, Fed. R. Civ. P. 77(b) states that “[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom.” (emphasis added). In addition, this Court’s Civil Practice Standards and Civil Standing Order also contemplate the possibility of remote video testimony. See Civ. Practice Standard 43.1D (c); CNS Civ. Standing Order II.A. In fact, this Court and courts in this Circuit regularly allow for remote video testimony when. See Dejager v. State Farm Fire & Cas. Co., No. 1:21-cv-00449-CNS-SKC (D. Colo. Dec. 27, 2022) (Sweeney, J.) (permitting testimony by remote video conference because the witness was no longer employed by State Farm and was scheduled to be outside Colorado during the trial); Kaufman v. Cent. RV, Inc., 2022 U.S. Dist. LEXIS 176518, at *2-3 (D. Kan. Sep. 28, 2022) (allowing testimony by remote videoconference because witness lived out of state, was outside the court’s subpoena power, and attendance at trial would result in substantial expense); Martinez v. Cont'l Tire the Ams., Ltd. Liab. Co., 2022 U.S. Dist. LEXIS 112380, at *4 (D.N.M. June 24, 2022) (permitting remote testimony of out-of-state witnesses). 2. Here, the parties are scheduled for a ten-day jury trial commencing on October 23, 2023. The City seeks the ability to present one “will call” witness, Dr. Michelle Frey, by remote means and Open does not oppose that request and stipulates to her appearance at trial by remote means. However, the City also seeks the ability to present one “may call” witness, Colman Keane, by remote means, which Open does oppose. Open Does Not Oppose the Remote Trial Testimony of Dr. Michelle Frey: 3. Dr. Michelle Frey, the City’s former contracted Project Manager and Vanir Construction Management employee during the relevant times at issue in this lawsuit, resides in Case No. 1:21-cv-02063-CNS-SBP Document 247 filed 09/22/23 USDC Colorado pg 2 of 7 3 Roanoke, Virginia. Dr. Frey is a “will call” witness for the City and has been previously disclosed as a hybrid/non-retained expert witness, including in the City’s May 26, 2023 Supplemental Disclosure in compliance with the Court’s prior May 3, 2023 Order (Dkt. 216). 4. Dr. Frey is unavailable to attend the trial in Colorado in person because she has been dealing with significant health issues, which required her to take time off of work for a period of time. While she is back working remotely, she has not resumed any travel, and is receiving ongoing treatment in Virginia. Dr. Frey, however, is able to appear to testify remotely via video at trial. Simply due to the difficulty in traveling from Denver to Roanoke, the parties previously agreed to (and did) take Dr. Frey’s deposition by zoom. Dr. Frey will testify regarding her communications with Open, Open’s representations and failures to provide promised functionalities, outstanding issues on the project, troubleshooting, and City staffing. Dr. Frey has also been disclosed as the City’s hybrid/non-retained expert and is therefore expected to provide expert testimony regarding the topics set forth in the City’s Supplemental Disclosure of Hybrid/Non-Retained Witness pursuant to F.R.C.P. 26(a)(2)(C), dated May 26, 2023. Based on Dr. Frey’s current health condition and location, along with the significance of her testimony for the City’s case, the City respectfully asserts good cause exists to permit Dr. Frey to testify remotely at trial. 5. As stated above, Open does not oppose the relief requested with respect to Dr. Frey and stipulates to her remote appearance at trial. Ex. 1 (September 1, 2023 Correspondence). Accordingly, the City respectfully requests that this Court grant the unopposed and stipulated trial appearance of Dr. Frey by remote means. Case No. 1:21-cv-02063-CNS-SBP Document 247 filed 09/22/23 USDC Colorado pg 3 of 7 4 Colman Keane Should Also Be Permitted to Appear by Remote Means: 6. The City has one “may call” witness, Colman Keane, who is not employed by the City, lives outside of Colorado, and is not able to attend the trial in person. 7. Mr. Keane was the City’s former Broadband Executive Director during the relevant times at issue in this lawsuit. As set forth in Open’s summary of claims and defenses in the Final Pretrial Order, Open’s case rests significantly on its assertion that the City’s broadband business caused the issues in the project and resulted in breaches of the parties’ contract. Accordingly, Mr. Keane is an important witness in the City’s case. 8. Mr. Keane left the project and the City of Fort Collins in approximately August 2021. Mr. Keane resides in North Carolina and is currently working on a broadband project in Tennessee, requiring him to regularly travel between Tennessee and North Carolina. Mr. Keane has no connections with the state of Colorado other than the contracts and implementation project at issue in this case. In fact, even when he was the Broadband Executive Director, he did not move to Colorado full-time. Because Mr. Keane was living in Signal Mountain, Tennessee prior to this month and had no connections with Colorado outside of his time on the project, the parties previously agreed to take Mr. Keane’s deposition remotely by Zoom. Open took Mr. Keane’s deposition over two separate days. Moreover, Mr. Keane just recently moved from Tennessee to North Carolina—even further away from Colorado. 9. Mr. Keane will testify regarding the general background of the implementation project, the City’s Broadband/Connexion, the decision on an integrated system, work by the broadband team and issues with Open/OSF, and the City’s claims and defenses in this matter, including Open’s failure to deliver promised functionalities. Based on Mr. Keane’s residence, his Case No. 1:21-cv-02063-CNS-SBP Document 247 filed 09/22/23 USDC Colorado pg 4 of 7 5 current work obligations in Tennessee, his move to North Carolina, as well as the City’s need for his testimony, the City respectfully asserts that good cause exists to permit Mr. Keane to testify remotely at trial. 10. While Open agreed to Dr. Frey’s remote testimony, Open opposes Mr. Keane’s remote testimony. Open, however, has not provided any substantive objections to Mr. Keane appearing remotely. Rather, it has simply argued that “[h]e can appear in person if the City can persuade him to waive process” and that “[i]f not, he gave a lengthy deposition that the parties may use.” Ex. 1. Like Dr. Frey, whom Open does not oppose, this Court should permit the remote testimony of Mr. Keane based on his location and circumstances, as well as the City’s need for his affirmative testimony.1 11. The City respectfully requests that this Court grant the City’s request to present Mr. Keane’s trial testimony by remote video conference for good and just cause as set forth above. Neither the Court nor any parties will be prejudiced by the City’s presentation of remote testimony of Mr. Keane as the parties have already agreed to present Dr. Frey remotely via video conference. See Dejager, No. 1:21-cv-00449-CNS-SKC (D. Colo. Dec. 27, 2022) (Sweeney, J.); Kaufman, 2022 U.S. Dist. LEXIS 176518 at *2-3; Martinez, 2022 U.S. Dist. LEXIS 112380 at *4. 12. Allowing Mr. Keane’s testimony remotely also promotes fairness. The City agreed to Open’s request to present Open’s technical expert, John Hutchinson, via remote means from New York due to his difficulties travelling. The vast majority of the parties’ witnesses will be 1 Of note, while Open deposed Mr. Keane over two separate days, the City did not question Mr. Keane during those depositions. Case No. 1:21-cv-02063-CNS-SBP Document 247 filed 09/22/23 USDC Colorado pg 5 of 7 6 presented in person, and this limited exception is appropriate to limit the intrusion on a third-party witness. 13. Based on prior appearances by video conference in this District, the City understands the Court has the necessary technology to allow for video testimony and as indicated by the Court during the parties’ Pre-Trial Conference, it is “pretty easy to do now” since COVID- 19. Ex. 2 (Hearing Tr.) at 5:2-11. Additionally, the City will take every step possible to ensure that the technology (and back-up technology) for remote videoconferencing functions appropriately to not cause delay at trial. Further, the presentation of video testimony should not impact witness examination. Video testimony allows the easy sharing of documents, use of exhibits, and face-to- face communication, which will make remote participation at trial an efficient and meaningful exercise. WHEREFORE, the City respectfully requests that the Court enter an Order allowing remote video testimony of Michelle Frey, PhD and Colman Keane at trial. Respectfully submitted this 22nd day of September, 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 Case No. 1:21-cv-02063-CNS-SBP Document 247 filed 09/22/23 USDC Colorado pg 6 of 7 7 CERTIFICATE OF SERVICE I hereby certify that on September 22, 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 Case No. 1:21-cv-02063-CNS-SBP Document 247 filed 09/22/23 USDC Colorado pg 7 of 7