HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 256 - Open's Trial Brief
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 TRIAL BRIEF
Case No. 1:21-cv-02063-CNS-SBP Document 256 filed 09/27/23 USDC Colorado pg 1 of
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In advance of the September 29, 2023 Trial Preparation Conference and the
commencement of trial on October 23, Defendants and Counterclaimant Open International, LLC
and Open Investments, LLC (together, “Open”) provide the following brief of items likely to
require resolution before or during trial: pending motions, the order and duration of witness
presentations, and two procedural issues related to exhibits.
I. PENDING MOTIONS
Three fully briefed motions are pending before the Court:
1. Open’s Motion in Limine (Dkts. 240, 243);
2. the City’s Motion in Limine (Dkts. 241, 242); and
3. the City’s Motion to Allow Remote Testimony of Colman Keane (Dkts. 248,
254).
With respect to its in limine motion, Open notes the following supplemental information.
At the time Open filed its motion, the City had not disclosed translations of several dozen Spanish-
language documents listed on the City’s trial exhibit list, and Open therefore sought to exclude the
foreign-language exhibits at trial. See Dkt. 240 at 4. After Open filed its motion, however, the
City produced 51 documents with purported Spanish-to-English translations, covering the vast
majority of the Spanish-language exhibits Open moved to exclude. Based on this production, the
City thereafter argued that exclusion is unwarranted. See Dkt. 243 at 4-5.
These translations were disclosed nearly a year after the close of discovery, though,
despite the City’s awareness of the Spanish-language originals, so they should be excluded under
Fed. R. Civ. P. 37(c) for the same reasons Open seeks exclusion of other late-disclosed materials.
Admitting them would be unfairly prejudicial. On preliminary review of a sample of the 51
documents produced by the City, Open personnel identified material inaccuracies in the
translations that call into question the quality—and the manner—of the translations. For
Case No. 1:21-cv-02063-CNS-SBP Document 256 filed 09/27/23 USDC Colorado pg 2 of
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example, the City seeks to offer a translated spreadsheet that removes or alters key data
contained in the original:
ORIGINAL (excerpt, Joint Ex. No. 93)
NEWLY PROFFERED TRANSLATION (excerpt, 201803061452_RPF – Fort Collins
v2_Translated)
In other proffered documents, the City offers inaccurate translations of Spanish text. For
example, for the phrase “Tenemos un gap importante en multiservicios: poder producir una sola
factura con servicios vencidos y anticipados,” the City offers the translation: “We have an
important gap in multi-service: to be able to issue one single invoice with due and prepaid
services.” Yet, the statement has nothing to do with “prepaid services,” so the translation
misconstrues this aspect of the disputed “single invoice” issue. Compare Ex. A, attached hereto,
at ECF page 6 (original of Jt. Ex. No. 150), with id. at ECF page 3 (newly proffered translation).
Case No. 1:21-cv-02063-CNS-SBP Document 256 filed 09/27/23 USDC Colorado pg 3 of
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A fair translation would be: “We have an important gap in multiservices: being able to produce a
single invoice with overdue and anticipated services,” which accurately reflects the nature of the
services at issue—some completed and others not even in existence rather than already paid-for.
Relatedly, the City offers translations of unsent, incomplete email drafts, while failing to
translate the sent emails that would complete them. Compare Ex. B, attached hereto, at ECF pages
2, 5 (newly proffered translation and original of draft email by Mr. Parrott, Jt. Ex. No. 88), with
Ex. C, attached hereto, at ECF page 2 (Mr. Parrott’s completed, sent email with additional
content). The City’s late disclosure makes it unfeasible for Open to isolate all incomplete originals,
identify the document necessary to complete it, and obtain certified translations before trial.
Finally, all of the translations are subject to authenticity and foundation objections. Taking
for example the translation attached to this brief as Ex. A, the translations have been labeled with
deposition-exhibit stickers even though the translations did not exist, let alone get marked as
exhibits, at the time of the depositions. The stickers falsely represent that the deposition witness
saw the translation. Additionally, the “Certification of Translation” at the end of each translation
does not certify by whom, or even by what means, the translation was made; the affiant simply
states that, “to the best of [her] knowledge and belief,” it is “a true and accurate translation.” She
does not state the basis for her knowledge and belief, does not claim she conducted the translation,
or even confirm that a qualified, human translator did so. Given the poor quality of the translations,
Open suspects they have been generated using machine translators, but given the late disclosure
of the translations, Open does not have an opportunity to probe their provenance.
In the ordinary course, Open could fully review the documents, obtain translations of its
own, confer with the City, and either resolve any translation and completeness disputes or
Case No. 1:21-cv-02063-CNS-SBP Document 256 filed 09/27/23 USDC Colorado pg 4 of
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challenge the accuracy of the City’s translations in motion practice or at trial. But because the
City waited to produce translations until the month before trial, Open would be unfairly prejudiced
if it were required to incur the time and expense of undertaking this process now, on the eve of
trial. The Court should exclude the City’s proffered Spanish-language exhibits for the reasons set
forth in Open’s motion in limine, and the late-disclosed translations for the reasons set forth here.
II. ORDER OF PROOF AND RELATED PROCEDURAL ISSUES
The parties’ witness lists reveal two issues that the Court must resolve before trial. First,
the parties intend to call many of the same witnesses, which entails problems of witness duplication
and the availability of witnesses for appearances during both weeks of trial. Second, the City has
estimated that it will put on its direct case during the first and second weeks of trial, leaving Open
with a day or two to present its case. To address these issues, the Court should exercise its
discretion to reasonably control the order and mode of examination by ordering the parties to
coordinate a single appearance by each witness in a manner that is fair to both parties. The Court
also should equally divide time to present witnesses and enforce that division with a chess clock.
A. Order of Examination
As to the order of examination, while Open and the City each wish to present their full
cases on their terms, the Court has stated its preference to avoid calling the same witness twice.
And while Open has always committed to make its witnesses available for examination by the
City, they reside and work in Florida and Colombia and cannot be in Colorado for the full two-
week trial. To resolve these problems, Open proposed a compromise by which the City would put
on City-sponsored witnesses—its employees, experts, and former employees and agents—during
the first week, and those witnesses would be directed and crossed by each side. During the second
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week, Open would do the same for the witnesses it is sponsoring. Both sides’ cases would be left
open till each calls all its witnesses, and Rule 50 motions would be postponed till then, too.
Witnesses, whether from Fort Collins or Florida, would have the benefit of a single trip to court,
and the factfinder would hear only once from each witness. See Ex. D, attached hereto, at ECF
pages 2-4, 6, 9 (Open proposal). Where witnesses will have to be called multiple times and some
are not subject to subpoena power, courts have used this approach to streamline evidence and avoid
forcing any party to present testimony through deposition. See Cisson v. C.R. Bard, Inc., 2013
U.S. Dist. LEXIS 94121, at *6-7 (S.D.W.V. 2013) (finding “that the most practical and fair way
to address this issue . . . within the confines of Rule 45 is to permit plaintiffs to keep their case in
chief open until [the defense witness] is called to testify,” at which time “plaintiffs may call [him]
as their witness”); see also In re Johnson, 580 B.R. 766, 774 (S.D. Ohio Bankr. 2018) (same
proposed resolution).
The City rejected Open’s proposed compromise, calling it “gamesmanship”1 during a call,
and insisted that Open must produce its four out-of-state witnesses at the City’s command and
conduct its own examinations within the confines of the City’s order of proof if Open wishes to
avoid calling them twice or keeping them in Colorado for two full weeks. See also Ex. D at 2-3,
5, 8 (City’s proposal). Nothing in Rule 45 permits the City to compel attendance at trial by foreign
1 Although the City did not provide authority for its position when Open asked, Open independently researched the
City’s accusation of gamesmanship. In one case, counsel for three witnesses, who were named defendants, “declined
to commit to their presence” although they “anticipate[d] that the individuals [would] be present at least at some point
during the trial”—i.e., “tactical” noncommitment that Judge Jackson deemed “gamesmanship.” CGC Holding Co.,
LLC v. Hutchens, 2016 U.S. Dist. LEXIS 160290, at *7-8 (D. Colo. 2016). So the court forced them to choose—
either be available for examination by the plaintiff, or they could not testify. Id. at *9. Here, the situation is different.
The witnesses are not themselves parties, they live either in Florida or overseas, and—most importantly—Open has
always committed to make them available in a reasonable manner. Open invokes the limits of Rule 45 only in response
to the City’s insistence that Open produce these foreign witnesses before Open calls them, which would require their
presence in Colorado for two weeks.
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witnesses who are not subject to subpoena. See Fed. R. Civ. P. 45, Comm. Notes 2013 Amdt.
(“These changes resolve a conflict . . . about a court’s authority to compel a party or party officer
to travel long distances to testify at trial; such testimony may now be required only as specified in
Rule 45(c)”). And the City’s proposed “compromise”—the City setting the order of witnesses for
both the City and Open—is not fair or reasonable.
If the City insists on presenting its full case entirely on its terms, including calling Open-
sponsored witnesses, then fairness dictates that Open must be permitted to do the same. But having
both sides present multiple witnesses twice would be inefficient, and Rule 45 does not empower
the City to compel Open to produce its witnesses during the City’s case. So instead, in a spirit of
compromise and honoring the factfinder’s time and witnesses’ convenience, Open maintains its
proposal that each witness be called just once by its sponsoring party, each party can examine the
witness in full, and Rule 50 motions are held till the end of evidence. Open requests that the Court
exercise its discretion under Rule 611(a) to order the presentation of witnesses in this manner.
B. Time for Examinations
The trial in this case will last two weeks during which Open expects only 48 hours of
testimony can be presented. The first day of trial likely will be taken up by jury selection, initial
instructions, and opening statements. The last day of trial likely will be taken up by Rule 50
motions, the charging conference, jury instructions, closing arguments, and deliberation. In the
remaining eight days, the Court’s standing order contemplates eight hours each day, minus a one-
hour lunch, a morning break, and an afternoon break. It would be optimistic to plan for more than
eight, six-hour days of testimony.
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Yet the City’s witness-list submissions estimate 48.25 hours just for the direct and cross-
examinations taken by the City. See Dkt. 249 (listing 24.25 hours of will-call and 6.5 hours of
may-call witnesses); Dkt. 251 (listing 17.5 hours of cross-examination). And the City plans to
present its 14 will-call witnesses through at least the seventh day of trial. See Dkt. 249.
In contrast, Open has planned for 17 hours of will-call direct testimony through nine
witnesses, with the understanding that it likely must complete any additional may-call or cross-
examinations in roughly seven hours—i.e., overall, half of the roughly 48-hour period for witness
presentation. See Dkt. 245. But if the City is permitted to put on the case it has outlined, Open
will be left with little or no time to present its case.
To ensure a fair trial, Open requests that the Court take two precautions. First, Open
requests that the Court establish even time for the parties to examine witnesses. Both parties have
claims and defenses to present and to prove. It would be fundamentally unfair to permit the City
to monopolize both weeks of trial and deprive Open of an equal opportunity to present its evidence
in support of its claims and defenses. See Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1450
(10th Cir. 1993) (“Notwithstanding . . . the trial court’s broad discretionary authority over such
issues, its ruling nevertheless must be balanced with constitutional fairness so as not to prejudice
the basic rights of the parties.”).
Second, in view of the City’s bewildering estimates for witness examinations, Open
requests that the Court ensure a fair trial by enforcing an equal allocation of time with a chess
clock. See Novey v. Heartland Home Fin., Inc., 2008 U.S. Dist. LEXIS 23529, at *19-20 (D. Colo.
Mar. 11, 2008) (“[T]he time would be equally divided between the parties, to be measured by a
chess clock maintained by the [Court].”); see also, e.g., Raynor v. G4S Secure Sols. (USA) Inc.,
Case No. 1:21-cv-02063-CNS-SBP Document 256 filed 09/27/23 USDC Colorado pg 8 of
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327 F. Supp. 3d 925, 940 (W.D.N.C. 2018) (imposing equal time limits enforced by chess clock);
Edwards v. Techtronic Indus. N. Am., Inc., 2015 U.S. Dist. LEXIS 74159, at *3 (D. Or. June 9,
2015) (same); Applera Corp. v. MJ Research, Inc., 389 F. Supp. 2d 344, 347-48 (D. Conn. 2005)
(same).
III. OTHER PROCEDURAL ISSUES RELATED TO EXHIBITS
Finally, Open respectfully requests that the Court address before trial two other procedural
matters related to exhibits. First, the City seeks to offer 26 exhibits that Open also seeks to offer,2
so Open agreed to stipulate to the admission of those exhibits. The City, however, refused to
stipulate to the admission of these exhibits that it seeks to offer and, while still planning to offer
them, the City has asserted objections to Open’s use of them. Further puzzling, the City’s
objections are predominantly for hearsay, even though nearly all of the exhibits are emails or other
documents written by City employees or agents—i.e., statements of Open’s party-opponent that
Open may offer, but that the City cannot. See, e.g., Ex. E, attached hereto (Jt. Tr. Ex. 58). To
streamline trial, Open requests that the Court pre-admit all 26 exhibits that both parties intend to
offer.
Second, Open requests guidance on the Court’s practice with respect to disclosing and
using demonstratives at trial, including white boards, expert witness’s figures and graphics, visual
summaries of testimony, timelines, opening statement presentations, and closing argument
presentations.
2 See Joint Exhibit Nos. 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76,
and 77.
Case No. 1:21-cv-02063-CNS-SBP Document 256 filed 09/27/23 USDC Colorado pg 9 of
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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 256 filed 09/27/23 USDC Colorado pg 10 of
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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
30594855
Case No. 1:21-cv-02063-CNS-SBP Document 256 filed 09/27/23 USDC Colorado pg 11 of
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EXHIBIT A
Case No. 1:21-cv-02063-CNS-SBP Document 256-1 filed 09/27/23 USDC Colorado pg 1
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Case No. 1:21-cv-02063-CNS-SBP Document 256-1 filed 09/27/23 USDC Colorado pg 2
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# Jesús Andrés Sánchez <573155706467@s.whatsapp.net> 10/19/2018,6:20 PM
Hi Hernando.
# Jesús Andrés Sánchez <573155706467@s.whatsapp.net> 10/19/2018,6:26 PM
I saw your note regarding the Cloud event. It makes sense.
# Hernando <17865545753@s.whatsapp.net> 10/19/2018,6:39 PM
I think it’s a good idea that you go
# Jesús Andrés Sánchez <573155706467@s.whatsapp.net> 10/19/2018,6:42 PM
All right. I’ll arrange the schedule
# Jesús Andrés Sánchez <573155706467@s.whatsapp.net> 10/19/2018,6:45 PM
Are you on vacation?
# Hernando <17865545753@s.whatsapp.net> 10/19/2018, 7:12 PM
Leaving right now
# Jesús Andrés Sánchez <573155706467@s.whatsapp.net> 10/19/2018, 7:16 PM
Have a good trip. Where are you going?
# Hernando <17865545753@s.whatsapp.net> 10/19/2018, 7:16 PM
Spain and The Netherlands
# Jesús Andrés Sánchez <573155706467@s.whatsapp.net> 10/19/2018, 7:16 PM
Have a very nice trip.
# Hernando <17865545753@s.whatsapp.net> 10/19/2018, 7:17 PM
Thanks! It went great in Colorado. Excellent kick-off and we have a chance in Longmont and loveland broad band
# Jesús Andrés Sánchez <573155706467@s.whatsapp.net> 10/19/2018, 7:18 PM
Great.
# Jesús Andrés Sánchez <573155706467@s.whatsapp.net> 10/19/2018, 7:26 PM
We already saw the Cca here, we have the gaps already, next week I will check with Benito how far we are
# Hernando <17865545753@s.whatsapp.net> 10/19/2018, 7:27 PM
���
# Hernando <17865545753@s.whatsapp.net> 10/19/2018, 7:28 PM
We have an important gap in multi-service: to be able to issue one single invoice with due and prepaid services
# Hernando <17865545753@s.whatsapp.net> 10/19/2018, 7:29 PM
Benito knows about it. It is key to be able to enter the utilities market with broadband in USA.
# Jesús Andrés Sánchez <573155706467@s.whatsapp.net> 10/19/2018, 7:29 PM
Yes. It came up in the committee.
# Hernando <17865545753@s.whatsapp.net> 10/19/2018, 7:30 PM
We can handle it in Ft Collins to start, but they will need it
Case No. 1:21-cv-02063-CNS-SBP Document 256-1 filed 09/27/23 USDC Colorado pg 3
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# Jesús Andrés Sánchez <573155706467@s.whatsapp.net> 10/19/2018, 7:32 PM
Ok, we have to check what else is out there that we’re missing
Case No. 1:21-cv-02063-CNS-SBP Document 256-1 filed 09/27/23 USDC Colorado pg 4
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EXHIBIT
662
Short Message Report
Conversations: 1 Participants: 2
Total Messages: 18 Date Range: 10/19/2018
Outline of Conversations
[;;J CHAT-02764 -2018/10/20 • 18 messages on 10/19/2018 • Hernando <17865545753@s.whatsapp.net>
• Jesus Andres Sanchez <573155706467@s.whatsapp.net>
CONFIDENTIAL Open_lntl_00359343
Case No. 1:21-cv-02063-CNS-SBP Document 256-1 filed 09/27/23 USDC Colorado pg 5
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Messages in chronological order (times are shown in GMT -06:00)
~ CHAT -02764 -2018/10/20
#
#
#
#
Jesus Andres Sanchez <573155706467@s.whatsapp.net>
Hola Hernando.
Jesus Andres Sanchez <573155706467@s.whatsapp.net>
Vi tu nota del evento de Cloud. Hace sentido.
Hernando <17865545753@s.whatsapp.net>
Creo que es bueno que vayas
Jesus Andres Sanchez <573155706467@s.whatsapp.net>
De acuerdo. Voy a organixar agenda.
Jesus Andres Sanchez <573155706467@s.whatsapp.net>
Estas en vacaciones?
Hernando <17865545753@s.whatsapp.net>
Saliendo ahora
Jesus Andres Sanchez <573155706467@s.whatsapp.net>
Muy buen viaje. A donde vas?
Hernando <17865545753@s.whatsapp.net>
Espana y Holanda
Jesus Andres Sanchez <573155706467@s.whatsapp.net>
Muy buen viaje.
Hernando <17865545753@s.whatsapp.net>
10/19/2018, 6:20 PM
10/19/2018, 6:26 PM
10/19/2018, 6:39 PM
10/19/2018, 6:42 PM
10/19/2018, 6:45 PM
10/19/2018, 7:12 PM
10/19/2018, 7:16 PM
10/19/2018, 7:16 PM
10/19/2018, 7:16 PM
10/19/2018, 7:17 PM
Gracias! Nos fue super en colorado. Excelente kick-off y tenemos oportunidad en Longmont y loveland broad band
#
#
#
#
Jesus Andres Sanchez <573155706467@s.whatsapp.net>
Super.
Jesus Andres Sanchez <573155706467@s.whatsapp.net>
10/19/2018, 7:18 PM
10/19/2018, 7:26 PM
Por aca ya vimos lo de Cea, ya tenemos los gaps, la prox semana veo con Benito que tan lejos estamos.
Hernando <17865545753@s.whatsapp.net> 10/19/2018, 7:27 PM •
Hernando <17865545753@s.whatsapp.net> 10/19/2018, 7:28 PM
Tenemos un gap importante en multiservicios: poder producir una sola factura con servicios vencidos y anticipados
Hernando <17865545753@s.whatsapp.net>
Benito esta al tanto. Es clave para poder entrar al mercado de utilities con broadband en USA.
Jesus Andres Sanchez <573155706467@s.whatsapp.net>
Si. Sali6 en comite.
Hernando <17865545753@s.whatsapp.net>
En Ft Collins lo podemos manejar para arrancar, pero lo van a necesitar
10/19/2018, 7:29 PM
10/19/2018, 7:29 PM
10/19/2018, 7:30 PM
CONFIDENTIAL Open_l ntl_00359344
Case No. 1:21-cv-02063-CNS-SBP Document 256-1 filed 09/27/23 USDC Colorado pg 6
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Jesus Andres Sanchez <573155706467@s.whatsapp.net>
Ok toca ver que mas hay por ahf que nos falte.
CONFIDENTIAL
10/19/2018, 7:32 PM
Open_l ntl_00359345
Case No. 1:21-cv-02063-CNS-SBP Document 256-1 filed 09/27/23 USDC Colorado pg 7
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Form OPS-QF-008 (rev.1)
September 1, 2023
This is to certify that the attached translation is, to the best of my knowledge and belief, a true
and accurate translation from Spanish into English of the attached document:
October 19, 2018 Chat messages Open_Intl_00359343 -Open_Intl_00359345
Linguistic Systems, Inc. adheres to an ISO-certified quality management system that ensures
best practices are always followed in the selection of linguists skilled in both the languages and
subject matters necessary for every translation.
Benardette McEvoy
Assistant Production Manager
Linguistic Systems, Inc.
Type text here
Case No. 1:21-cv-02063-CNS-SBP Document 256-1 filed 09/27/23 USDC Colorado pg 8
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EXHIBIT B
Case No. 1:21-cv-02063-CNS-SBP Document 256-2 filed 09/27/23 USDC Colorado pg 1
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Subject: RE: RV: Fort Collins Efforts
important: High
+ Juan Pablo
Carolina/Benito,
I understand the situation and the difficulty. It is not easy because the client has emphasized that there is no
room for postponement.
Now, Fort Collins is, even over Citizens, the most important opportunity we have in North America and we
have a competitive advantage by being the only ones to have an integrated solution to address Telco &
Utilities, and the Fort Collins team really liked our solution.
The dilemma is: If we can’t get a customer in the USA, there is little point in having the product by September.
Pedro, Juan Pablo: Is there anyone else in the service area who can help Carolina's team in the
responses/estimates?
Carolina/Benito, we need to solve it tomorrow so we do not jeopardize the response.
I thank you in advance for all your help in finding a way that we can, we need it to accomplish our goals. Not
having a winning proposal cannot be an option for us!!!
Hernando
From: Carolina Garavito Y.
Sent: Tuesday, February 20, 2018 2:57 PM
To: Pedro F. Ordoñez <Pedro.Ordonez@openintl.com>; Hernando Parrott
<Hernando.Parrott@openintl.com>; Benito J. Pardini A. <Benito.Pardin¡@openintl.com>; Benito J.
Pardini A. <Benito.Pardini@openintl.com>
Subject: FWD: FWD: Fort Collins Efforts
Hernando and Pedro, good afternoon,
As Benito has stated, we are currently at a crucial point to move forward with the definitions we need for the
2018 work plan.
Given the short time we have to respond to Fort Collins RFP, we must make use of everyone on the definition
team, which jeopardized this year's work plan.
For this reason, we ask that you rely on a team to respond the RFP in the time frame needed.
Case No. 1:21-cv-02063-CNS-SBP Document 256-2 filed 09/27/23 USDC Colorado pg 2
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Thank you very much.
Carolina Garavito Y.
PRODUCT DEVELOPMENT DIRECTOR
m. +57-318-772-5856 11. +57-2-331-9999 Ext. 151
www.openintl.com
From: Benito J. Padini A.
Sent: Tuesday, February 20, 2018 5:45 p. m.
To: Carolina Garavito Y.
Subject: Re: FWD: Fort Collins Efforts
Tell Pedro to look somewhere else for help, 10 days is too much of an impact, it jeopardizes the September
1 goal committed, I don't want to give room for excuses.
On Feb 20, 2018 4:08 PM, "Carolina Garavito Y." <Carolina.Garavito@openintl.com> wrote:
Hello Boss,
The Fort Collins RFP is due next Friday, March 2. To do this we are going to need to move the people we
have assigned to the definitions to respond to it. This will cause the definitions mentioned by Jorge in the
email below to move 10 days, which would impact this year's work plan.
Your authorization to make this movement.
Thank you.
Carolina Garavito Y.
PRODUCT DEVELOPMENT DIRECTOR
m. +57-318-772-5856 11. +57-2-331-9999 Ext, 151
www.openintl.com
From: Jorge A. Basante
Sent: Tuesday, February 20, 2018 2:47 p.m.
Case No. 1:21-cv-02063-CNS-SBP Document 256-2 filed 09/27/23 USDC Colorado pg 3
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To: Carolina Garavito Y.
Subject: Fort Collins Efforts
Hi Caro,
In our initial calculations we estimate that we would have approximately 480 new questions, which requires a
400 hour effort - 10 days approx. considering the manual review to ensure cross-referencing of questions with
previous RFPs. Also, this RFP has vendor notes so we have to respond all the creative ones.
Based on the foregoing and in order to achieve the deliverable by the date required by sales, we will pull 5
people from the DEF teams, impacting the following definitions:
• SA0340330 - Periodic Meter Maintenance / SA0420752 - Backflows (these two are being worked on
by the same person because they are related)
. SAO420653 - Cancel / Rebill
• SAO424732 - Financing without debt restructuring.
. SAO418646 - CCGAC Redesign (DEMO and DEV)
• SAO388544 - Estimation of telemetered consumptions
Additionally, I would like to ask you if it is possible to miss the Open Door English Program during these
days since the dates are very tight.
Regards,
Jorge Arturo Basante O.
PRODUCT DEVELOPMENT ARCHITECT
m. +57-316-482-7264 11. +57-2-331-9999 Ext. 212
www.openintl.com
Case No. 1:21-cv-02063-CNS-SBP Document 256-2 filed 09/27/23 USDC Colorado pg 4
of 8
J
Message
To: Carolina Garavito Y. [/o=Exchangelabs/ou=Exchange Administrative Group
(FYDIBOHF23SPDLT)/cn=Recipients/cn=5746a29b78164fb18f5f48ded437e9b4-Carolina Ga]; Pedro F. Ordonez
[/o=Exchangelabs/ou=Exchange Administrative Group (FYDIBOHF23SPDLT)/cn=Recipients/cn=user7a0391bd];
Benito J. Pardini A. [/o=~xchangelabs/ou=Exchange Administrative Group
(FYDIBOHF23SPDLT)/cn=Recipients/cn=e83299048a3b43a6ba9decd734f6354e-Benito J. P]
CC: Juan Pablo Nufiez G. [/o=Exchangelabs/ou=Exchange Administrative Group
(FYDIBOHF23SPDL T)/cn=Recipients/cn=user4c9f278e]
Subject: RE: RV: Esfuerzos Forth Collins
Importance: High
+ Juan Pablo
Carolina/Benito,
Entendida la situacion y dificultad. No esta facil porque el cliente ha side enfatico en indicar que no hay espacio para
aplazamientos.
Ahora bien, Fort Collins es, incluso par encima de Citizens, la oportunidad mas importante a la que tenemos en
Norteamerica y tenemos ventaja competitiva al ser las (micas en tener una soluci6n integrada para atenderTelco &
Utililites y al equipo de Fort Collins le gusto mucho nuestra solucion.
La encrucijada es: Si no logramos tener un cliente en USA, poco sirve tener el producto en Septiembre.
Pedro, Juan Pablo: Hay alguien mas en el area de servicios que pueda ayudar al equipo de Carolina en las
respuestas/estimaciones?
Carolina/Benito, necesitamos resolver ma/1ana para no poner en riesgo la respuesta.
Agradezco de antemano toda su ayuda para buscar la forma que sf podamos, lo necesitamos para cumplir nuestras
metas. No tener una propuesta ganadora no puede ser una opci6n para nosotros!!
Hernando
From: Carolina Garavito Y.
Sent: Tuesday, February 20, 2018 2:57 PM
To: Pedro F. Ordo/1ez <Pedro.Ordonez@openintl.com>; Hernando Parrott <Hernando.Parrott@openintl.com>; Benito J.
Pardini A.<Benito.Pardini@openintl.com>
Subject: RV: RV: Esfuerzos Forth Collins
Hernando y Pedro buenas tardes:
Tai coma lo menciona Benito, en este momenta estamos en un punto crucial para sacar adelante las definiciones
que nos hacen falta para el plan de trabajo de 2018.
Teniendo en cuenta el poco tiempo que tenemos para responder el RFP de Fort Collins, debemos hacer uso de
todas las personas de! equipo de definici6n lo que pone en riesgo el plan de trabajo de este aiio.
Por esta raz6n, solicitamos que se apoyen en alg(m equipo para contestar el RFP en el tiempo que lo necesitan.
CONFIDENTIAL EXHIBIT Open_lntl_00092778
Case No. 1:21-cv-02063-CNS-SBP Document 256-2 filed 09/27/23 USDC Colorado pg 5
of 8
Muchas gracias.
Carolina Garavito Y.
IPRODUCT DEVELOPMEiT DIRECTOR
m. +57-318-772-5856 It. +57-2-331-9999 Ext. 151
www.openlntl.com
De: Benito J. Pardini A.
Enviado: martes, 20 de febrero de 2018 5:45 p. m.
Para: Carolina Garavito Y.
Asunto: Re: RV: Esfuerzos Forth Collins
Dile a Pedro que busque ayuda en otro lade 10 dfas es demasiado impacto, pone en riesgo la meta de! 1 de
septiembre comprometida, no quiero dar espacio a excusas
El 20 feb. 2018 4:08 PM, "Carolina Garavito Y." <Carolina.Garavito@openintl.com> escribi6:
HolaJefe:
El RFP de FortCollins debemos entregarlo el pr6ximo viemes 2 de marzo. Para ello vamos a necesitar mover a
las personas que tenemos asignadas a las definiciones para responderlo. Esto hara que las definiciones
mencionadas par Jorge en el correo inferior se muevan 10 dias, lo que impactaria el plan de trabajo de este aiio.
Tu autorizaci6n para realizar este movimiento.
Gracias.
Carolina Garavito Y.
PRODUCT DEVELOPMENT DIRECTOR ,-----,
m. +57-318-772-5856 It. +57-2-331-9999 Ext.151
www.openlntl.com
De: Jorge A. Basante
Enviado: martes, 20 de febrero de 2018 2:47 p. m.
CONFIDENTIAL Open_lntl_00092779
Case No. 1:21-cv-02063-CNS-SBP Document 256-2 filed 09/27/23 USDC Colorado pg 6
of 8
Para: Carolina Garavito Y.
Asunto: Esfuerzos Forth Collins
Hola Caro
En nucstros calculos iniciales estimamos que vamos a tener aproximadamente 480 preguntas nucvas, lo que
requiere un esfuerzo 400 horas -IO dias aprox. considerando la revision manual para garantizar el cruce de las
preguntas con los RFPs anteriores. Ademas, este RFP tiene vendor notes por lo que tenemos que responder
todas las creativas.
Con base en lo anterior y con el fin de lograr el entregable para la fecha que requiere ventas, vamos a sacar 5
personas de los equipos de DEF, impactando las siguientes definiciones:
• SAO340330 -Matenimiento peri6dico de medidores / SAO420752 -Backflows (estos dos los esta
trabajando la misma persona debido a que estan relacionados)
• SAO420653 -Cancel/ Re bill
• SAO424732 -Financiaci6n sin reestructurar deuda.
• SAO418646 -Rediseno CCGAC (DEMO y DLLO)
• SAO388544 -Estimaci6n de consumes telemedidos
Adicionalmente te queria consultar si es posible faltar durante estos dias al Open Door English Program ya
que las fechas estan muy apretadas.
Saludos,
Jorge Arturo Basante 0.
PRODUCT DEVELOPMENT ARCHITECT
I --1
m. +57-316-482-7264 It. +57-2-331-9999 Ext. 212
"'"'w,.qpenintl,com
CONFIDENTIAL Open_lntl_00092780
Case No. 1:21-cv-02063-CNS-SBP Document 256-2 filed 09/27/23 USDC Colorado pg 7
of 8
Form OPS-QF-008 (rev.1)
September 4, 2023
This is to certify that the attached translation is, to the best of my knowledge and belief, a true
and accurate translation from Spanish into English of the attached document:
February 20, 2018 Email re RV: Esfuerzos Forth Collins Open_Intl_00092778 -
Open_Intl_00092780
Linguistic Systems, Inc. adheres to an ISO-certified quality management system that ensures
best practices are always followed in the selection of linguists skilled in both the languages and
subject matters necessary for every translation.
Benardette McEvoy
Assistant Production Manager
Linguistic Systems, Inc.
Case No. 1:21-cv-02063-CNS-SBP Document 256-2 filed 09/27/23 USDC Colorado pg 8
of 8
EXHIBIT C
Case No. 1:21-cv-02063-CNS-SBP Document 256-3 filed 09/27/23 USDC Colorado pg 1
of 4
Case No. 1:21-cv-02063-CNS-SBP Document 256-3 filed 09/27/23 USDC Colorado pg 2
of 4
Case No. 1:21-cv-02063-CNS-SBP Document 256-3 filed 09/27/23 USDC Colorado pg 3
of 4
Case No. 1:21-cv-02063-CNS-SBP Document 256-3 filed 09/27/23 USDC Colorado pg 4
of 4
EXHIBIT D
Case No. 1:21-cv-02063-CNS-SBP Document 256-4 filed 09/27/23 USDC Colorado pg 1
of 10
Paul D. Swanson
From:Paul D. Swanson
Sent:Friday, September 22, 2023 10:40 AM
To:collard.case@dorsey.com; Alex E. Pierce; Shoaei.Maral@dorsey.com;
wechter.andrea@dorsey.com
Cc:Kevin McAdam; Alex D. White; Marcy Weaver
Subject:RE: CFC v. Open - Trial Logistics
Thanks, Case. We’re fine with the first date for depo designations, but let’s have our conference with the Court before
nailing down the remainder since those other dates put us out of time with the Court’s current deadline for submission.
And to correct your summary of Open’s “stated concerns,” Open is looking for a “reasonable compromise that avoids
putting witnesses on twice, which is Judge Sweeney’s preference, or having them travel for multiple weeks.” The City’s
proposal misses the reasonable compromise bit. The City wants to put on its case on its terms, and as we said before,
Open does, too. The City’s proposal would permit the City to put its case on its terms, but not Open. That’s prejudicial
to Open, and not a reasonable compromise. So the City’s proposal does not fully address Open’s goals.
As to whether the City’s ability to call Open’s out-of-state witnesses is a Rule 45 issue, I think Open and the City just read
the rules and the cases differently.
Have a good weekend.
Paul
Paul D. Swanson
H e / H i m (What’s this?)
Partner, Holland & Hart LLP
pdswanson@hollandhart.com | T: (303) 295-8578 | M: (925) 381-0457
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: collard.case@dorsey.com <collard.case@dorsey.com>
Sent: Thursday, September 21, 2023 5:09 PM
To: Paul D. Swanson <PDSwanson@hollandhart.com>; Alex E. Pierce <AEPierce@hollandhart.com>;
Shoaei.Maral@dorsey.com; wechter.andrea@dorsey.com
Cc: 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
Paul –
Thank you for letting us know that William Corredor will be the corporate representative. That may simplify things a bit
since he is a may-call witness in our case. However, that still leaves us with a dispute about at least Hernando Parrot,
Juan Corredor, and Diego Lopez who we intend to call in our case. Your stated concerns are avoiding putting witnesses
on twice and minimizing their length of stay in Colorado. Our proposal (made on August 16 – see attached email) would
allow Open to directly examine Open witnesses when the City calls them. That proposal fully addresses both goals and
allows the City, as plaintiffs, to control the presentation of its case.
Case No. 1:21-cv-02063-CNS-SBP Document 256-4 filed 09/27/23 USDC Colorado pg 2
of 10
I appreciate your interest in negotiating a resolution, however, your proposals deprive the City of the ability to put on its
case in a reasonable manner by forcing the City to use depositions or to leave significant portions of its case to be put on
in the midst of Open’s case (and deprives the City of the ability to question the Open witnesses first). Not only is this
prejudicial to the City as the plaintiff, but it is confusing to the jury.
As I mentioned on the phone, this is not a Rule 45 issue because we are not seeking to compel attendance of these
witnesses, Open has already committed to having them appear at trial.
We agree with your proposal to deal with this in the trial brief and will put our position there. We appreciate your
agreement to delaying the exchange of deposition designations since, depending on the resolution of this dispute, the
designation of Parrot, J. Corredor, and Lopez may not be necessary.
Regarding the revised designation schedule, we propose:
1)October 4 – initial designations (current date – Sept 22)
2)October 10 – responsive designations (current date – Sept 29)
3)October 12 – reply designations (current date – none)
4)October 13 – submit designations to the Court (current date – October 9)
This would allow us to get the Court’s guidance on this issue before designating. Please let us know if that works for
you.
Case
Case Collard
Dorsey & Whitney LLP
720 839 4353
From: Paul D. Swanson <PDSwanson@hollandhart.com>
Sent: Thursday, September 21, 2023 10:24 AM
To: Collard, Case <collard.case@dorsey.com>; Alex E. Pierce <AEPierce@hollandhart.com>; Shoaei, Maral
<Shoaei.Maral@dorsey.com>; Wechter, Andrea <wechter.andrea@dorsey.com>
Cc: Kevin McAdam <KCMcAdam@hollandhart.com>; Alex D. White <ADWhite@hollandhart.com>; Marcy Weaver
<MWeaver@hollandhart.com>
Subject: RE: CFC v. Open - Trial Logistics
EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS.
Hi, all—just following up on the corporate rep question. Open intends to have William Corredor at trial as its corporate
rep, so he’d be available to testify throughout.
For all of the Open-employee witnesses the City would like to call (and vice versa for City-sponsored witnesses Open will
call), we’d still prefer to find a reasonable compromise that avoids putting witnesses on twice, which is Judge Sweeney’s
preference, or having them travel for multiple weeks from Florida and Colombia (or from Fort Collins). And as we
mentioned, both sides’ cases would stay open till they’ve had a chance to conduct their examinations. Let us know.
Paul
Paul D. Swanson
Case No. 1:21-cv-02063-CNS-SBP Document 256-4 filed 09/27/23 USDC Colorado pg 3
of 10
H e / H i m (What’s this?)
Partner, Holland & Hart LLP
pdswanson@hollandhart.com | T: (303) 295-8578 | M: (925) 381-0457
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: Paul D. Swanson
Sent: Tuesday, September 19, 2023 1:45 PM
To: 'collard.case@dorsey.com' <collard.case@dorsey.com>; Alex E. Pierce <AEPierce@hollandhart.com>;
Shoaei.Maral@dorsey.com; wechter.andrea@dorsey.com
Cc: Kevin McAdam <KCMcAdam@hollandhart.com>; Alex D. White <ADWhite@hollandhart.com>; Marcy Weaver
<MWeaver@hollandhart.com>
Subject: RE: CFC v. Open - Trial Logistics
Hi, Case—
Alex had jury duty today, so I’ll chime in. In response to the issues you identify, we don’t see a problem. Generally,
witnesses cannot be compelled by a subpoena to appear at a trial more than 100 miles away, and even officers may not
be compelled to appear at trial by subpoena outside their state under Rule 45(c)(1)(B). If Open has a corporate
representative at trial, that person would be subject to examination throughout trial, but not others. As to exhibits, the
City knew Open’s witnesses reside out of state, and it had an opportunity to depose Open’s witnesses and address
documents.
We’re happy to confer on this later today. Ahead of that, could you please let us know:
1.on what basis the City believes that Open must produce its out-of-state officers and 30(b)(6) deposition
designees at the City’s request?
2.on what basis the City would seek to preclude Open from calling witnesses that the City deposed or had the
opportunity to depose and that, under Open’s proposal, would be available for live questioning after Open calls
them?
3.what the City means by needing additional time to make designations for the witnesses it was planning to
question live?
Ultimately, we think a compromise makes the most sense here. We don’t see a basis for the City to compel Open’s
witnesses to appear at the City’s call, but as we initially proposed, we’re happy to handle City employees/former
employees/agents that the City intends to call in one shot during the first week of trial, and then to do the same for
Open’s people during the second week. That seems like a reasonable and efficient way for both sides to put on their
evidence. If we can’t agree, this can be addressed in trial briefs.
Best,
Paul
Paul D. Swanson
H e / H i m (What’s this?)
Partner, Holland & Hart LLP
pdswanson@hollandhart.com | T: (303) 295-8578 | M: (925) 381-0457
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: collard.case@dorsey.com <collard.case@dorsey.com>
Sent: Tuesday, September 19, 2023 9:44 AM
To: Alex E. Pierce <AEPierce@hollandhart.com>; Shoaei.Maral@dorsey.com; wechter.andrea@dorsey.com
Cc: Paul D. Swanson <PDSwanson@hollandhart.com>; Kevin McAdam <KCMcAdam@hollandhart.com>; Alex D. White
Case No. 1:21-cv-02063-CNS-SBP Document 256-4 filed 09/27/23 USDC Colorado pg 4
of 10
<ADWhite@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com>
Subject: RE: CFC v. Open - Trial Logistics
External Email
Hi Alex –
Can we please have a call on this this afternoon? Perhaps we can discuss this at the beginning of the previously
scheduled 3pm call regarding exhibits? We have considered Open’s position and do not see how this is workable. I
suggest that we confer further as you suggest and if we are not able to resolve this, then we present the parties’
positions to the Court with our filings on Friday.
There are a number of problems with Open’s position:
1.City is seeking to call executives and 30(b)(6) representatives of Open. Open has an obligation to make those
people available for our case.
2.We expect that that Open will have a corporate representa tive at the trial and based on your position below, we
understand that Open would be objecting to the City calling that person in our case. We do not understand the
basis for that position.
3.This also raises issues regarding exhibits—we will be seeking to enter exhibits with the Open witnesses. If they
are not called live and Open is objecting to exhibits, we would have no way to lay additional foundation or
overcome a hearsay objection. And of course, if we want to use a new document with a witness that was not
used in the deposition, we would have no way to do so.
If you insist on this position, we will need additional time to make designations for the witnesses which we were
planning to question live and we intend to move to preclude Open from calling the witnesses live.
Case
Case Collard
Dorsey & Whitney LLP
720 839 4353
From: Alex E. Pierce <AEPierce@hollandhart.com>
Sent: Tuesday, September 12, 2023 11:59 AM
To: Shoaei, Maral <Shoaei.Maral@dorsey.com>; Collard, Case <collard.case@dorsey.com>; Wechter, Andrea
<wechter.andrea@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 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.
Case No. 1:21-cv-02063-CNS-SBP Document 256-4 filed 09/27/23 USDC Colorado pg 5
of 10
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,
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.
Case No. 1:21-cv-02063-CNS-SBP Document 256-4 filed 09/27/23 USDC Colorado pg 6
of 10
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
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.
Case No. 1:21-cv-02063-CNS-SBP Document 256-4 filed 09/27/23 USDC Colorado pg 7
of 10
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 28 th 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 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.
Case No. 1:21-cv-02063-CNS-SBP Document 256-4 filed 09/27/23 USDC Colorado pg 8
of 10
Additionally, can you please confirm by Monday, August 21 st, 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
Attorney
Pronouns: She/Her/Hers
DORSEY & WHITNEY LLP
1400 Wewatta Street, Suite 400 | Denver, CO 80202-5549
P: 303.352.1146
F: 303.629.3450
C: 863.397.0184
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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
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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.
Case No. 1:21-cv-02063-CNS-SBP Document 256-4 filed 09/27/23 USDC Colorado pg 9
of 10
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?
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 256-4 filed 09/27/23 USDC Colorado pg 10
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EXHIBIT E
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