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Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 254 - Open's Resp Mot Allow Remote Testimony 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 and OPEN INVESTMENTS, LLC Defendants/Counterclaim Plaintiff. OPEN’S RESPONSE TO CITY’S MOTION TO ALLOW REMOTE VIDEO TESTIMONY OF COLMAN KEANE Open and the City agree that medical limitations on two expert witnesses justify their remote testimony at trial, and the parties seek permission for this accommodation. Dkt. 248 (“Motion” or “Mot.”) ¶¶ 5, 12. But the City has not shown good cause or compelling circumstances to warrant remote testimony from Colman Keane. Indeed, the presumption in favor of live testimony applies more strongly to Mr. Keane than other witnesses, both because the City deems his testimony particularly important and because his credibility is uniquely at issue. The Court should deny the City’s Motion to present Mr. Keane by remote means. LEGAL STANDARD Absent a showing of “good cause in compelling circumstances,” trial “witnesses’ testimony must be taken in open court.” Fed. R. Civ. P. 43(a). “The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling,” and the “opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition.” Hardy v . Flood, 2019 U.S. Dist. LEXIS 79461, at *8 (D. Colo. 2019) (quotations omitted). Thus, a showing Case No. 1:21-cv-02063-CNS-SBP Document 254 filed 09/27/23 USDC Colorado pg 1 of 6 2 “that it is inconvenient for the witness to attend trial” will not justify remote testimony. Fed. R. Civ. P. 43(a), 1994 Amdt. Advisory Committee Notes. Rather, a party typically must show that “a witness is unable to attend trial for unexpected reasons, such as accident or illness”; if a party “could reasonably foresee the circumstances offered to justify” remote testimony, it “will have special difficulty in showing good cause and the compelling nature of the circumstances.” Id. For a witness who cannot be compelled to attend trial, depositions “provide a superior means of securing the testimony of a witness.” Id. ARGUMENT I. THE CITY HAS NOT SHOWN GOOD CAUSE OR COMPELLING CIRCUMSTANCES TO JUSTIFY MR. KEANE’S REMOTE TESTIMONY. The City offers two reasons to justify Mr. Keane’s remote testimony: his out-of-state “residence” and his “current employment.” Mot. ¶ 9. These do not amount to good cause in compelling circumstances, and both the Tenth Circuit and courts in this District have rejected them as a basis for remote testimony. In Eller v. Trans Union, LLC, the Tenth Circuit concluded there was not good cause for remote testimony because the plaintiff “proffered no ‘unexpected reason’ for [the witness’s] absence from trial” and showed only that the witness lived in Oregon—a situation for which the plaintiff “could have made arrangements ahead of time for introducing [the witness’s] testimony, by deposition for instance.” 739 F.3d 467, 478 (10th Cir. 2013). Even for a witness whose putative trial appearance would have conflicted with a foreign proceeding, the plaintiff “could (and perhaps should) have foreseen that [the witness] might not be available for trial and made alternative arrangements for his testimony.” Id. at 479. Following Eller’s guidance, courts in this District have held that a “witness’s out-of-state residence or arranged travel plans do not constitute good Case No. 1:21-cv-02063-CNS-SBP Document 254 filed 09/27/23 USDC Colorado pg 2 of 6 3 cause” when the offering party had ample advance knowledge, Hardy, 2019 U.S. Dist. LEXIS 79461 at *8, and that “the demands of [a witness’s] employment,” unless “unexpected,” do not justify remote testimony either, Carbajal v. Lucio, 2017 U.S. Dist. LEXIS 100248, at *2-3 (D. Colo. 2017). Here, the City has known since at least June 2022—when it asked Open to conduct a remote deposition for Mr. Keane, during two half-days to accommodate his work schedule—that Mr. Keane resides out of state and that his work limits his availability. During the intervening half-year of discovery, the City could have obtained Mr. Keane’s testimony as a matter of right, but it declined to ask questions during his deposition by Open or to notice its own deposition. This was the City’s choice, and under the plain language of the Rules, the Advisory Committee Notes, and precedent in this Circuit, the inconvenience of bringing Mr. Keane to trial does not warrant remote testimony. The City’s cited authority is not to the contrary. In Dejager v. State Farm, the plaintiff sought testimony from a recently retired employee of the defendant, who the defendant had just learned would be out of state during trial, and the defendant asked this Court on behalf of its former employee to permit remote testimony. No. 21-cv-449-CNS-SKC, Dkt. 89, at *1-2 (D. Colo. Dec. 19, 2022) (motion). While the Court granted that motion, this case is different. The City is seeking to present its own witness remotely, and there is no surprise whatsoever to justify it.1 Nor does Mr. Keane’s situation present the sort of limited testimony (the City anticipates 90 minutes for his direct examination, Dkt. 249) or unusual personal burdens for which the City’s other cited 1 That case also was governed by General Order 2022-4, which made special accommodation for remote appearances during the COVID-19 pandemic, but which the Chief Judge subsequently rescinded in General Order 2023-5. Case No. 1:21-cv-02063-CNS-SBP Document 254 filed 09/27/23 USDC Colorado pg 3 of 6 4 authority permitted remote testimony. See Kaufman v. Cent. RV, Inc., 2022 U.S. Dist. LEXIS 176518, at *2-3 (D. Kan. 2022) (permitting 20- to 30-minute remote testimony by stay-at-home mother living with two young children 233 miles from courthouse); Martinez v. Cont’l Tire, 2022 U.S. Dist. LEXIS 112380, at *3-4 (D.N.M. 2022) (permitting remote testimony due to “medical issues” and for third-party physicians whose “testimony appears to be limited”). The City offers nothing to elevate Mr. Keane’s burdens over those of any other out-of-state witness with a job; to the contrary, his burden would be lighter than other out-of-state witnesses who do not “regularly travel” interstate like he does. Mot. ¶ 8. Having failed to show good cause in compelling circumstances, the City should not be permitted to present Mr. Keane by remote means.2 II. THE ASSERTED IMPORTANCE OF MR. KEANE, AND DIRECT CHALLENGES TO HIS CREDIBILITY, MAKE LIVE TESTIMONY ESSENTIAL. Although it is not Open’s burden to justify Mr. Keane’s live appearance at trial, the reasons for the presumption in favor of appearing face-to-face before the factfinder are especially strong here. By the City’s accounting, “Mr. Keane is an important witness,” Mot. ¶ 7, so remote testimony would be inappropriate even if the City presented good reasons. See Martinez, 2022 U.S. Dist. LEXIS 112380, at *3-4 (rejecting remote testimony for “important fact witness” despite his “health concern” and work obligations). Moreover, Mr. Keane’s credibility will be squarely at issue and should be subject to live consideration by the factfinder. Multiple senior leaders from the City’s project team cast doubt on Mr. Keane’s credibility. See, e.g., July 12, 2022 Dep. M. Beckstead at 116:1-5 (Ex. A) (Former City CFO and project Executive Sponsor: “It wasn’t his 2 Beyond Rule 43, the Court should reject Mr. Keane as a may-call witness under Fed. R. Evid. 611(a). The City currently projects it will present more than 24 hours of direct, will-call testimony, Dkt. 249, and 17 hours of cross- examination, Dkt 251, in a two-week trial that will likely permit only 48 hours of total testimony. There is not enough time for the City to present its current will-call witnesses, let alone potential tacked-on witnesses like Mr. Keane. Case No. 1:21-cv-02063-CNS-SBP Document 254 filed 09/27/23 USDC Colorado pg 4 of 6 5 style to be transparent and be open, and it’s just not the way Colman operated.”); May 18, 2020 email from L. Rosintoski at CFC_053108 (Ex. B) (City Project Leader/Sponsor: “Good luck with Colman . . . pound of salt and at times does not represent the truth. . . . Always a deflect and defend platform with Colman.”); see also Sept. 21, 2022 Dep. W. Corredor at 112:1-10 (Ex. C) (Open CEO: “So I guess [Mr. Keane] completely misled us in the name of the City, telling us that he had that [information] already, and then we found out that he not only didn’t have it by the time they signed the contract, they didn’t have it—some of it they didn’t have it all the way up to December of 2018 so . . . [s]o he either lied to us or he just didn’t want us to know that he wasn’t prepared.”). For this important witness, whose credibility will be squarely at issue, Open must have the opportunity to cross-examine him in person, and the factfinder must have the opportunity to fully consider his demeanor in open court. CONCLUSION Because the City has not shown good cause in compelling circumstances to present Colman Keane’s testimony by remote means, and because this important witness’s credibility is squarely at issue, the Court should deny the City’s Motion and require Mr. Keane’s testimony live, if at all. Dated: September 27, 2023 Respectfully submitted, s/ Paul D. Swanson Paul D. Swanson, pdswanson@hollandhart.com Kevin C. McAdam, kcmcadam@hollandhart.com Alexander D. White, adwhite@hollandhart.com Alexandria E. Pierce, aepierce@hollandhart.com Holland & Hart LLP 555 17th Street, Suite 3200 Denver, Colorado 80202 Telephone: 303-295-8000 Attorneys for Open International, LLC and Open Investments, LLC Case No. 1:21-cv-02063-CNS-SBP Document 254 filed 09/27/23 USDC Colorado pg 5 of 6 CERTIFICATE OF SERVICE I hereby certify that on the 27th day of September, 2023, the foregoing was electronically filed with the Clerk of Court using the Court’s electronic filing system and that a copy of the foregoing was sent to all counsel of record via same in compliance with the Federal Rules of Civil Procedure and the Local Rules of this Court. s/ Paul D. Swanson 30593832 Case No. 1:21-cv-02063-CNS-SBP Document 254 filed 09/27/23 USDC Colorado pg 6 of 6 EXHIBIT A Case No. 1:21-cv-02063-CNS-SBP Document 254-1 filed 09/27/23 USDC Colorado pg 1 of 3 Case No. 1:21-cv-02063-CNS-SBP Document 254-1 filed 09/27/23 USDC Colorado pg 2 of 3 Case No. 1:21-cv-02063-CNS-SBP Document 254-1 filed 09/27/23 USDC Colorado pg 3 of 3 EXHIBIT B Case No. 1:21-cv-02063-CNS-SBP Document 254-2 filed 09/27/23 USDC Colorado pg 1 of 5 Case No. 1:21-cv-02063-CNS-SBP Document 254-2 filed 09/27/23 USDC Colorado pg 2 of 5 Case No. 1:21-cv-02063-CNS-SBP Document 254-2 filed 09/27/23 USDC Colorado pg 3 of 5 Case No. 1:21-cv-02063-CNS-SBP Document 254-2 filed 09/27/23 USDC Colorado pg 4 of 5 Case No. 1:21-cv-02063-CNS-SBP Document 254-2 filed 09/27/23 USDC Colorado pg 5 of 5 EXHIBIT C Case No. 1:21-cv-02063-CNS-SBP Document 254-3 filed 09/27/23 USDC Colorado pg 1 of 3 Case No. 1:21-cv-02063-CNS-SBP Document 254-3 filed 09/27/23 USDC Colorado pg 2 of 3 Case No. 1:21-cv-02063-CNS-SBP Document 254-3 filed 09/27/23 USDC Colorado pg 3 of 3