HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 248 - City Mot Allow Remote Testimony Frey And Keane
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
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“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
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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.
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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
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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.
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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
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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
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([KLELW
Case No. 1:21-cv-02063-CNS-SBP Document 248-1 filed 09/22/23 USDC Colorado pg 1
of 7
From:Alex E. Pierce
To:Shoaei, Maral; Collard, Case; Wechter, Andrea
Cc:Paul D. Swanson; Kevin McAdam; Alex D. White; Marcy Weaver
Subject:RE: CFC v. Open - Trial Logistics
Date:Tuesday, September 12, 2023 10:59:19 AM
Attachments:image001.png
image002.png
EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS.
Hi Maral,
I’m following up on our exchange below on witness sequencing and our phone conversations on remote
appearances.
With our earlier proposal on witness sequencing, we hoped to minimize burden on witnesses and the
factfinder in a fair and reasonable way. We’ve been considering whether that’s possible with the City’s
position below, but if the City is going to insist on putting on all its witnesses—including Open’s employee-
witnesses—to present the City’s full case on its terms during the first week, then Open must have the right
to do the same during the second week, even if that duplicates witnesses. Since Open’s employee-
witnesses live and work in Florida and Colombia, they can’t be in Colorado for two weeks, so they’ll be
available only for their testimony in the second week during Open’s case. If the City seeks to call any Open
employee-witnesses during the first week, the City will have to present those witnesses by deposition.
We’re happy to discuss this further if the City wants to propose a reasonable compromise.
Regarding remote witness appearances, we take your point that Dr. Frey has medical issues that make a
live appearance difficult. The same is true for Mr. Hutchinson. So, if the City agrees, we’ll stipulate that
both of them can appear remotely. We oppose remote testimony for Mr. Keane, however. He can
appear in person if the City can persuade him to waive process. If not, he gave a lengthy deposition that
the parties may use. Regarding Mr. Beckstead, please confirm by Friday whether the City will be
producing him voluntarily in person at trial or if a subpoena will be necessary.
Thanks,
Alex
Alex Pierce
Associate, Holland & Hart LLP
aepierce@hollandhart.com | T: (303) 295-8063 | M: (720) 610-7886
CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the
sender that you received the message in error; then please delete this email.
From: Alex E. Pierce
Sent: Monday, August 21, 2023 4:44 PM
To: Shoaei.Maral@dorsey.com; 'andrea.wechter@dorsey.com' <andrea.wechter@dorsey.com>;
collard.case@dorsey.com
Cc: Paul D. Swanson <PDSwanson@hollandhart.com>; Kevin McAdam <KCMcAdam@hollandhart.com>;
Alex D. White <ADWhite@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com>
Subject: RE: CFC v. Open - Trial Logistics
Maral,
Case No. 1:21-cv-02063-CNS-SBP Document 248-1 filed 09/22/23 USDC Colorado pg 2
of 7
Thanks for your responses. Here’s our proposal for the below topics. Please provide a reply by 8/24.
Future Conferrals
For motions in limine, we propose conferring August 29 or 30. For jury instructions, we propose
exchanging draft instructions 8/30 at noon, and then having a conferral call the afternoon of 8/31 or 9/1.
We can then confer further the following week, if needed. If those dates work, we can get something
scheduled before our calendars fill up.
Exhibit List
Given that 9/7 is the day before jury instructions and MILs are due, we propose scheduling a conferral for
after 9/8 to discuss consolidating the exhibit list. Would 9/11 or 9/12 work?
Jury Questionnaire
We propose having the questionnaire cover biographical information like name, gender, date of birth, age,
residence, duration of residence in Colorado, marital status, children (if any), educational level, education
history, employment history, spouse/partner’s occupation, whether the juror has any family or close
friends that work in government or technology, previous jury service, whether the juror has any prior
involvement in civil or criminal proceedings as a witness or party, sources of news that the juror views,
and other similar information. We’re not married to these specifics and welcome your input, of course.
Translation of Exhibits in Spanish
Please let us know whether the City will be obtaining certified translations and, if so, when Open will
receive those for review. We reserve the right to object based on late disclosure of translations.
Valadez
Because the City opted not to subpoena Mr. Valadez, we have not anticipated that the City would attempt
to introduce evidence ascribed to him. So, although Open does not control Mr. Valadez since he is a
former employee, as stated in the pretrial order, Open would attempt to call Mr. Valadez only to respond
to evidence offered by the City and ascribed to Mr. Valadez to which he would fairly need to respond.
Witnesses
We are considering the City’s proposal and will circle back regarding the presence and order of witnesses
at trial.
Thanks,
Alex
Alex Pierce
Associate, Holland & Hart LLP
aepierce@hollandhart.com | T: (303) 295-8063 | M: (720) 610-7886
CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the
sender that you received the message in error; then please delete this email.
From: Shoaei.Maral@dorsey.com <Shoaei.Maral@dorsey.com>
Sent: Wednesday, August 16, 2023 4:23 PM
Case No. 1:21-cv-02063-CNS-SBP Document 248-1 filed 09/22/23 USDC Colorado pg 3
of 7
To: Alex E. Pierce <AEPierce@hollandhart.com>; collard.case@dorsey.com; andrea.wechter@dorsey.com
Cc: Paul D. Swanson <PDSwanson@hollandhart.com>; Kevin McAdam <KCMcAdam@hollandhart.com>;
Alex D. White <ADWhite@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com>
Subject: RE: CFC v. Open - Trial Logistics
External Email
Alex,
Thanks for your email. Below please find our response in red to each of the points raised, followed by a
question of our own.
1. How to handle witness appearances for trial
• Since we’ve both identified some will-call witnesses that are associated with the other
party, we’d like to talk about how to ensure attendance. For example, for current
employees, do we want to agree on appearances? For example, we intend to have at
trial the four Open witnesses on the City’s will-call list and would be willing to discuss
waiving subpoenas. We do not believe subpoenas are needed for party witnesses, but
in any event, yes, we would like our will-call Open witnesses to be available in-person.
Would the City be amenable to a reciprocal arrangement like that? The City intends
to make its current employees available in-person and again, do not believe
subpoenas are necessary for party witnesses. What about for former employees and
third parties represented by Dorsey, like Mr. Beckstead or Dr. Frey? As we mentioned
during the Final Pretrial Conference and as set forth in the Final Pretrial Order, Dr.
Frey will not be able to attend the trial in-person due to medical reasons. However,
we have confirmed that she will be available over Zoom. As for Mr. Beckstead, the City
is willing to request that he attend the trial in-person. However, the City is unclear if
Mr. Beckstead will be in Colorado, but will confirm.
2. Future conferrals on motions in limine and jury instructions
• We’d like to schedule some times to confer on motions in limine, jury instructions,
and finalizing the exhibit list.
• For motions in limine, we thought a conferral call during the week of August 21, since
they’ll be due on September 8. That is fine with us. Please provide some dates/times
for us to consider.
• For jury instructions, perhaps a conferral call for September 6? With jury instructions
due on September 8th, we suggest exchanging draft instructions by Noon MT on
August 28th and conferring over phone/Zoom on either August 31st or September 1st.
That will allow us time to come up with a consolidated set that we all agree on and for
each party to identify any instructions that the parties disagree on.
3. Exhibit list consolidation
• Would it make sense to set a date for exchanging objections and stipulations that
account for duplicate or near-duplicate exhibits that can be consolidated, and another
date for a conferral call? Perhaps early September, so we have time ahead of the 9/22
deadline? That is fine with us. How does September 7th work for you all?
4. Voir dire questions
• Our understanding is that the voir dire questions due to Judge Sweeney on 9/22 are
Case No. 1:21-cv-02063-CNS-SBP Document 248-1 filed 09/22/23 USDC Colorado pg 4
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questions that the parties would like the Court to ask potential jurors during voir dire.
Is that the City’s understanding too? Yes, that is consistent with our experience and
understanding.
• We’d also like to talk about doing a questionnaire. We’re in favor of it, and would like
to get your thoughts. We are not sure how in-depth of a questionnaire you are
suggesting, but happy to discuss further.
5. Stipulations
• We propose stipulating to the total amount of money that the City paid to Open, the
total amount of funds that the City held in retainage for Open, and the total amount
of money in the unpaid invoices to Open.
• Would the City be open to a stipulation about those amounts? At this time, the City is
willing to stipulate to the total amount the City paid to Open.
6. Handling witnesses during trial
• We believe that calling witnesses just once will benefit the factfinder, the witnesses,
and the parties. To do that, we propose having each party call its own witnesses
during its case-in-chief, and letting the opposing party conduct not only a cross of that
witness, but also go beyond the direct to conduct their own direct, as necessary.
• For example, the City will call Ms. Rosintoski, and Open would then cross-examine her
and be permitted to conduct its direct, followed by the City’s redirect/cross and finally
Open’s redirect on anything raised first in its direct. Conversely, Open will call Mr.
Parrott during its case-in-chief, who the City could then cross and direct, then Open
redirects/crosses, and the City redirects.
• Please let us know your thoughts about this approach, or alternatives, and whether
the City thinks a chess clock may help in any event. We generally do not agree with
this approach. The City has the right to call an Open witness in its case-in-chief.
Open, at that time, may direct the individual, followed by the City’s re-cross and
finally, Open’s re-direct. The City would be agreeable to allowing Open to go outside
the scope on direct so to avoid having to re-call witnesses, but the City does not agree
to not calling Open witnesses in its case-in-chief.
7. Translation of exhibits in Spanish
• We noticed that the City listed some proposed exhibits in Spanish and separately
listed an “English Translation” of those exhibits, which appear to be machine-
translated. The machine translations won’t be admissible, so we wanted to
understand whether the City is obtaining properly certified translations and, if so,
when Open will receive those for review. We are looking into this issue and will revert
back next week.
Additionally, can you please confirm by Monday, August 21st, whether Open intends to call Jeff Valadez as
a witness at trial (either via Zoom or in-person)?
We are also happy to discuss the above points, or any additional topics, further on a call later this week.
Please just provide some dates/times that work for you all.
Thanks,
Maral
Maral J. Shoaei
Case No. 1:21-cv-02063-CNS-SBP Document 248-1 filed 09/22/23 USDC Colorado pg 5
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From: Alex E. Pierce <AEPierce@hollandhart.com>
Sent: Thursday, August 10, 2023 11:06 AM
To: Collard, Case <collard.case@dorsey.com>; andrea.wechter@dorsey.com; Shoaei, Maral
<Shoaei.Maral@dorsey.com>
Cc: Paul D. Swanson <PDSwanson@hollandhart.com>; Kevin McAdam <KCMcAdam@hollandhart.com>;
Alex D. White <ADWhite@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com>
Subject: CFC v. Open - Trial Logistics
EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS.
Hi all,
We’d like to confer on logistics for trial before deadlines get too close. Could we ask for your responses on
the points below by 8/16? We’re also happy to have a call to talk through these.
1. How to handle witness appearances for trial
Since we’ve both identified some will-call witnesses that are associated with the other party,
we’d like to talk about how to ensure attendance. For example, for current employees, do
we want to agree on appearances? For example, we intend to have at trial the four Open
witnesses on the City’s will-call list and would be willing to discuss waiving subpoenas.
Would the City be amenable to a reciprocal arrangement like that? What about for former
employees and third parties represented by Dorsey, like Mr. Beckstead or Dr. Frey?
2. Future conferrals on motions in limine and jury instructions
We’d like to schedule some times to confer on motions in limine, jury instructions, and
finalizing the exhibit list.
For motions in limine, we thought a conferral call during the week of August 21, since they’ll
be due on September 8.
For jury instructions, perhaps a conferral call for September 6?
3. Exhibit list consolidation
Would it make sense to set a date for exchanging objections and stipulations that account for
duplicate or near-duplicate exhibits that can be consolidated, and another date for a
conferral call? Perhaps early September, so we have time ahead of the 9/22 deadline?
Case No. 1:21-cv-02063-CNS-SBP Document 248-1 filed 09/22/23 USDC Colorado pg 6
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4. Voir dire questions
Our understanding is that the voir dire questions due to Judge Sweeney on 9/22 are
questions that the parties would like the Court to ask potential jurors during voir dire. Is that
the City’s understanding too?
We’d also like to talk about doing a questionnaire. We’re in favor of it, and would like to get
your thoughts.
5. Stipulations
We propose stipulating to the total amount of money that the City paid to Open, the total
amount of funds that the City held in retainage for Open, and the total amount of money in
the unpaid invoices to Open.
Would the City be open to a stipulation about those amounts?
6. Handling witnesses during trial
We believe that calling witnesses just once will benefit the factfinder, the witnesses, and the
parties. To do that, we propose having each party call its own witnesses during its case-in-
chief, and letting the opposing party conduct not only a cross of that witness, but also go
beyond the direct to conduct their own direct, as necessary.
For example, the City will call Ms. Rosintoski, and Open would then cross-examine her and be
permitted to conduct its direct, followed by the City’s redirect/cross and finally Open’s
redirect on anything raised first in its direct. Conversely, Open will call Mr. Parrott during its
case-in-chief, who the City could then cross and direct, then Open redirects/crosses, and the
City redirects.
Please let us know your thoughts about this approach, or alternatives, and whether the City
thinks a chess clock may help in any event.
7. Translation of exhibits in Spanish
We noticed that the City listed some proposed exhibits in Spanish and separately listed an
“English Translation” of those exhibits, which appear to be machine-translated. The machine
translations won’t be admissible, so we wanted to understand whether the City is obtaining
properly certified translations and, if so, when Open will receive those for review.
Best,
Alex
Alex Pierce
Associate
HOLLAND & HART LLP
555 17th Street, Suite 3200, Denver, CO 80202
aepierce@hollandhart.com | T: (303) 295-8063 | M: (720) 610-7886
CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the
sender that you received the message in error; then please delete this email.
Case No. 1:21-cv-02063-CNS-SBP Document 248-1 filed 09/22/23 USDC Colorado pg 7
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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.
Case No. 1:21-cv-02063-CNS-SBP Document 248-2 filed 09/22/23 USDC Colorado pg 2
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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
people. Any sense on when you'll know more about that or when
you'll make that decision in terms of whether you're calling
them by depo or live?
MR. SWANSON: Your Honor, I can address for the Open
defendants. Several of the individuals we've identified as
potentially being called by deposition are on the will-call
list for the city, and they're witnesses under the control of
the city; Mr. Galluzzi, Dr. Frey, and Mr. Mcclune. So our
anticipation at this point would be that the city plans to
have them here in person and we would therefore not be able to
present them by deposition.
And as to Mr. Bishop and Ms. Mercado, really they're
just may-call witnesses at this point. We're not sure whether
they'd be called, and if they were, because they are outside
of the Court's subpoena power, we probably would have to do
that by deposition, and I think we will know that closer to
trial for those two.
THE COURT: All right. And for the City of Fort
Collins?
MR. COLLARD: Yes, Your Honor. So the ones that we
have in common, Ms. Mercado and Mr. Bishop, I think
Mr. Swanson addressed, and those are third parties, and we're
going to try and see if they will be able to attend or not.
Thomas Hickmann I believe is on the will-call list for Open,
if I recall. And then Colman Keane, the real issue there is
Sarah K. Mitchell, RPR, CRR
3
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21-cv-02063-CNS-SP Pretrial Conference 07/10/2023
that we would like to have him testify remotely. He's no
longer with the city. He's now in, I think, Knoxville,
Tennessee, and then so I think if we can have him testify
remotely, we'll talk to him about setting that up, avoiding
the need to do his testimony by designation.
THE COURT: Okay. And in terms of you all working
together on this, do you anticipate any issues arising from
this or have you talked about these ideas?
MR. COLLARD: We haven't talked about them, but I
actually don't anticipate issues around these because unless
they object to Mr. Keane being remote, which I'll let
Mr. Swanson address right now, because I think we're both sort
of going to have to defer to the counsel for Ms. Mercado and
Mr. Bishop and whether or not they're going to be here in
person or potentially available for remote testimony.
THE COURT: Okay.
MR. SWANSON: And I agree with Mr. Collard. We have
some concern about remote witnesses appearing that way, but
we've not fleshed it out with our clients yet or begun
conferring with the city, so I note it only to note it.
THE COURT: Okay. Well, what I would say is by the
time we do the trial prep conference, if you can have that
mapped out, and if there are any issues I'd like to address
them then versus push them closer to trial. So hopefully
you'll have a good chance to confer and maybe we won't have
Sarah K. Mitchell, RPR, CRR
4
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21-cv-02063-CNS-SP Pretrial Conference 07/10/2023 5
any issues at all.
MR. COLLARD: Your Honor, just to clarify then, you
know, we mentioned some remote testimony. Is that something
that, you know, if the parties are in agreement, you know,
that you are happy if we said this person is in Tennessee,
this person is in Georgia, we're going to have them testify
remotely. Is that all fine with you?
THE COURT: It usually is. I mean, you'll still need
to make some sort of showing that they're not here, but given
COVID and how we all adopted, it's pretty easy to do now, and
I don't have any issue with it really.
MR. COLLARD: Okay.
THE COURT: So unless there's a substantive
objection, we're allowing them.
MR. COLLARD: And to the extent there's a substantive
objection, we'll just make our position and you'll rule?
THE COURT: Exactly. And, again, at the trial prep
conference. So all of that should be done in advance if there
needs to be briefing.
MR. COLLARD: Understood.
THE COURT: The exhibits, I'll just briefly say
they're long lists. This is only a two-week trial, so I know
you're probably listing everything under the sun, but just
keep in mind we've got ten days. I don't think we can bleed
into the next week. As you both I think know, our standing
Sarah K. Mitchell, RPR, CRR
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