HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 257 - City's Trial BriefIN 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’ TRIAL BRIEF
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Pursuant to CNS Civ. Standing Order, Plaintiff, the City of Fort Collins (the “City”), by
and through its undersigned counsel, respectfully submits this Trial Brief identifying matters that
it anticipates will be at issue during the jury trial set for October 23-November 3, 2023, and in
support thereof, states as follows:1
I. Open Should Be Limited to Using Depositions of its Will-Call Executives Unless
They Are Made Available During the City’s Case-in-Chief.
Among the 26 witnesses that Open has identified as either “will call” or “may call”, Open
has identified three executives—Hernando Parrott (President, North America), Juan Corredor
(Chief Technology Officer), and Diego Lopez (Project Management Office Director)—as “will
call” witnesses (Dkt. 245) who “will be present at trial.” Dkt. 230. These individuals were deposed
in their personal capacities and were also all designated by Open as three of four corporate
representatives for purposes of Fed. R. Civ. P. 30(b)(6) to testify for over 90% of the City’s Rule
30(b)(6) topics. See Ex. 1 (Open Designations). Based on their roles and knowledge of key aspects
of the project with the City, the City has also identified them as “will call” witnesses in its case-
in-chief. See Dkt. 250. Open, however, refuses to make these witnesses available during the City’s
case-in-chief and asserts that the City should designate their depositions in its case-in-chief if the
City is not willing to both: (i) let Open call them for the first time in its own case, and (ii) only
question them after Open gets to put on its direct examination of those witnesses first. Ex. 2 (Aug.
16-Sep. 22, 2023 Email). Open’s purported concerns for refusing to make these three individuals
available during the City’s case-in-chief is not that they are not actually available during the first
1 Since the Court is familiar with the facts underlying this litigation given its recent consideration of the parties’
respective motions for summary judgment and other pending motions, and in order to streamline the Court’s
review, the City does not provide a factual background for the purposes of this brief.
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week of trial, but only that they would potentially be called twice or have to stay in Colorado for
multiple days. Id. The Court should decline to follow Open’s suggested course.
First, Open’s proposal creates prejudice and inequality by depriving the City of the ability
to put on its case in a reasonable manner and instead favoring Open’s presentation. Open would
force the City to use depositions while Open would have live testimony from the same witnesses
or the City would have to leave significant portions of its case to be put on in the midst of Open’s
case (while also depriving the City of the ability to question the Open witnesses first). This
gamesmanship is prejudicial to the City as the plaintiff and confusing to the jury. The City will
suffer prejudice because each of these witnesses is a key Open executive that has information
supporting City’s fraud and misrepresentation claims. By not having the opportunity to question
them in its case-in-chief, the City’s case will have significant gaps that will not be filled for days
and after the jury has potentially forgotten or confused the earlier testimony. Similarly, key
exhibits may only be admissible through live Open witnesses. If the City is forced to wait, evidence
that City witnesses need to discuss may not be admitted if the City cannot call Open witnesses
during its case. This scattered approach would not promote the jury’s understanding of the
evidence or judicial economy. In fact, it is in circumstances like these that courts defer to the
plaintiff’s preferred order, especially when a defendant intends on calling the same witnesses live
in its case and calling the witness only once will help lessen the burden. See, e.g., Chiles v. Novartis
Pharm. Corp., 2013 U.S. Dist. LEXIS 196223 (M.D. Fla. Feb. 15, 2013) (holding it was
“elementary that a witness that will appear at trial for defendant cannot refuse to appear during
plaintiff's case in chief.”).
Second, Open’s exact proposal has been rejected in courts in Colorado and around the
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country as gamesmanship. Under Fed. R. Evid. 611, the Court “should exercise reasonable control
over the mode and order of examining witnesses and presenting evidence so as to make those
procedures effective for determining the truth [and] avoid wasting time . . . .” To prevent unfairness
and promote efficiency, this Court has precluded defendants from refusing reasonable requests to
make key witnesses available for live testimony during the plaintiff’s case-in-chief and, thereby,
forcing the plaintiff to present the witness by deposition or wait until the defense called the witness.
For instance, in CGC Holding Company, LLC v. Hutchens, defendants declined to make three
witnesses within their control available for live testimony during the plaintiff’s case-in-chief. 2016
U.S. Dist. LEXIS 160290, *6-7 (D. Colo. Nov. 16, 2016) (Jackson, J.). Like here, those defendants
proposed that the court keep the plaintiff’s case-in-chief open until defendants called the witnesses
during their case and then plaintiff could fully cross-examine the witness at that time. Id. at 7.
Defendants also proposed that, if the witnesses were available during the plaintiff’s case-in-chief,
the court permit the defense to present the witnesses as an out of order defense witness. Id. The
court rejected the defendants’ proposals and found that the “defendants’ refusal to commit to the
presence of the three [witnesses] during plaintiffs’ case in chief while reserving the option to call
them as live witnesses during defendants’ case in chief strikes me as unjustified gamesmanship.”
Id. at *8. The court further noted: “it is neither unusual nor improper for a plaintiff to wish to call
the opposing party during the plaintiff's case in chief.” Id. Thus, the court ruled that if the witnesses
appeared live, then defendants were required to make the witnesses available during the plaintiff’s
case-in-chief. Id. *8-9.
Courts around the country have come to the same conclusion, recognizing the improper
gamesmanship of forcing a plaintiff to rely on depositions, and precluded live testimony by the
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witnesses in a defendant’s case when defendant refused to make witnesses available in plaintiff’s
case-in-chief. See R.B. Matthews, Inc. v. Transam. Transp. Servs., Inc., 945 F.2d 269, 273 (9th
Cir. 1991) (“By denying RBM’s requests to produce Reed and White as live witnesses, TTS
engaged in gamesmanship, forcing RBM to rely on depositions. The district court did not abuse
its discretion when it forced TTS to rely on deposition testimony as well.”); Buchwald v. Renco
Grp., Inc., 2014 U.S. Dist. LEXIS 118239, at *7-8 (S.D.N.Y. Aug. 22, 2014) (stating how courts
have denounced similar strategy as “gamesmanship” and ultimately finding that it has the
“authority under Rule 611(a) to prevent those witnesses from testifying [live] for Defendants if
they are not made available to testify for the Trustee”); Maran Coal Corp. v. Societe Generale de
Surveillance S.A., 1996 U.S. Dist. LEXIS 172, at *7 (S.D.N.Y. Jan. 9, 1996) (“[D]efendants must
produce Messrs. Chati and Walker for plaintiff's case or be precluded from calling them as live
witnesses in their own case.”); In re Gulf Oil/Cities Serv. Tender Offer Litig., 776 F. Supp. 838,
839 (S.D.N.Y. 1991) (“If [the witness] elects to absent himself during plaintiffs' case, he will not
testify at all, and plaintiffs will be free to comment upon his absence.”); Iorio v. Allianz Life Ins.
Co., 2009 U.S. Dist. LEXIS 97617, at *19 (S.D. Cal. Oct. 21, 2009) (“[I]f Plaintiffs are forced to
show the videotaped depositions or read the transcript into the record of any of the movants in this
action because Defendants have failed to produce them, Defendants will thereafter be precluded
from producing the same witnesses in person.”); Vera v. Berkshire Life Ins. Co. of Am., 2021 U.S.
Dist. LEXIS 255979, at *2-3 (S.D. Fla. June 28, 2021) (rejecting as “gamesmanship” the
defendant’s refusal to produce witnesses it intended to call live during its case-in-chief to the
plaintiff during her case-in-chief).
Open is engaged in the same “gamesmanship” that courts around the country, including
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this District, have condemned. Despite having confirmed that Mr. Parrott, Mr. Juan Corredor, and
Mr. Lopez will be attending the trial in-person and failing to identify any actual conflict with their
attendance the first week of trial, Open refuses to make them available for the City’s case-in-chief
(requiring the City to designate deposition transcripts). In fairness, the Court should order that
Open must also only call them by deposition and cannot bring them live. Alternatively, the Court
should compel Open to make the witnesses available for the City’s case, consistent with other
courts around the country.2 Open cannot demonstrate unfair burden or prejudice. Open already
intends to call these witnesses for live testimony, Open has control over these witnesses, and the
witnesses already plan to travel to Colorado for the trial. 3 Open has the ability to examine them
when the City calls them or call them again in its case, in other words, Open has a choice about
how to best put its case forward. 4
2 See In re Polyurethane Foam Antitrust Litig., 2015 U.S. Dist. LEXIS 183457 (N.D. Ohio Mar. 6, 2015)
(requiring defendant to make any witness that it wishes to present live during its own case-in-chief to be available
for live testimony during plaintiffs’ case); In re Lidoderm Antitrust Litig., 2018 WL 7814761, *10 (N.D. Cal.
Feb. 7, 2018) (requiring defendants to make available, during plaintiffs’ case-in-chief, defendants’ current
employees that defendants intended to call in their case-in-chief); In re C.R. Bard, Inc., Pelvic Repair Sys. Prods.
Liab. Litig., 2013 U.S. Dist. LEXIS 94121, at *6 (S.D.W. Va. July 5, 2013) (not allowing a witness to testify
live for the plaintiff when the defendant intended to call the witness for its case-in-chief would result in
“inequitable treatment”).
3 To the extent that Open argues that the Court cannot compel these witnesses’ testimony under Rule 45 as they
reside outside this District, such argument is without merit for two reasons. First, they are all Open’s corporate
representatives. See, e.g., Clark v. Wilkin, 2008 WL 648542 *1 (D. Utah, March 10, 2008); Square D Co. v.
Breakers Unlimited, Inc., 2009 WL 1702078, at *1-*2 (S. D. Ind., June 11, 2009 (treating corporation’s
designated Rule 30(B)(b)(6) witness as the corporate party for purposes of Rule 45); Mason v. Texaco, Inc., 741
F. Supp. 1472, 1504 (D. Kan. 1990) (corporation’s key witness could be compelled to testify live at trial, even
though he was outside the limits of Rule 45, because corporation itself intended to call the witnesses at trial).
Second, the City is not seeking to compel their attendance, they are already coming to trial. See Buchwald, 2014
U.S. Dist. LEXIS, at *8 (finding that the court need not compel the witnesses to testify at trial since they are
attending part of the trial voluntarily, but rather, under Rule 611(a), it has the authority to prevent them from
testimony for defendants if they are not made available for the other party).
4 Additionally, the City already addressed Open’s concerns regarding presenting witnesses multiple times and
extended stays in Colorado when it proposed that Open could exceed the scope of the City’ examination by
directly examining its witnesses when the City calls them. Ex. 2. This reasonable option allows the City to try
its case-in-chief in an efficient manner that the jury can understand while avoiding the need for Open to call
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Accordingly, the City requests that the Court bar Open from calling Mr. Parrott, Mr. Juan
Corredor, and Mr. Lopez live at trial so that the parties present each witness only through
deposition testimony or, alternatively, order Open to make these witnesses available for live-
testimony during the City’s case-in-chief.
II. Open’s Ongoing Misrepresentations Concerning the City’s Appropriated Funds
Are Improper and Should be Excluded.
In its ongoing attempt to smear the City and damage its reputation with the jury, Open
intends to argue at trial that the City purposefully misrepresented and/or misallocated appropriated
funds for the project. Open’s arguments, however, lack merit for four inter-related reasons, and
any assertion by Open that the City acted unlawfully should be excluded.
First, it is not relevant to any fact the jury needs to determine and Open’s attempt to paint
the City as acting improperly in its appropriations is misleading and must be curtailed. As already
stated by undersigned counsel to this Court during the parties’ Pre-Trial Conference, the City does
not intend to use appropriations to argue a cap on the damages that Open may seek at trial. Ex. 3,
(Pre-Trial Hearing Tr.) at 8:5-9:13. Thus, any argument by Open regarding purported misconduct
by the City, which does not exist, is not only irrelevant but also highly prejudicial substantially
outweighing any arguable probative value and should be excluded altogether.
Second, Open’s separate characterizations of “appropriated” and “encumbered” funds is
incorrect and contradicts the City’s Charter and appropriations law. Specifically, Open has
repeatedly argued that the City appropriated approximately $12 million for the contract with Open.
See, e.g. Dkt. 223 at 3; Dkt. 242 at 5-6. This is inaccurate. The City does not appropriate monies
witnesses twice or requiring them be in Colorado for two weeks.
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for specific vendors (such as Open), it appropriates amounts for projects. Ex. 4, (City 30(b)(6)
Dep. Tr.) at 14:18-15:16. Here, the City appropriated monies for the unified CIS/OSS billing
system project as part of its Request for Proposal released in February 2018. Open cannot, and
should not be permitted to, argue that the City appropriated $12 million (or any amount in fact)
only for Open. Such statement is false and in contradiction of the City Charter and the relevant
ordinances appropriating monies for the project and, therefore, should be excluded. See Dkt. 222-
3 at Exs. B-F (applicable ordinances reflecting appropriated amounts for the project).
Third, and relatedly, Open continues to claim that because the City “encumbered” funds
for Open and then released those funds to pay other third-party vendors on the project, the City
somehow acted inappropriately or unlawfully in violation of the City Charter and criminal statutes.
This, however, is one of Open’s fundamental misunderstanding of appropriations and relevant law.
By law, funds that were “encumbered” based on potential obligations to Open do not have
to be paid to Open. Arguments otherwise would be irrelevant, contrary to law, and confusing to
the jury. “Encumbered” (as used regarding City appropriations) appears in City Charter Article
V, Section 11 (“Section 11”).5 “Encumbered” is not defined in the Charter, but in practice it refers
5 Section 11 read in relevant part, until it was amended by the City’s voters on April 6, 2021:
All appropriations unexpended or unencumbered at the end of the fiscal year shall lapse to the
applicable general or special fund, except that appropriations for capital projects and federal or state
grants shall not lapse until the completion of the capital project or until the expiration of the federal or
state grant. (Emphasis added.)
Section 11 was amended on April 6, 2021, by the City’s voters to now read in relevant part:
All appropriations unexpended or unencumbered at the end of the fiscal year shall lapse to the
applicable general or special fund, except the Council may designate in an ordinance appropriating
funds for capital projects and for federal, state grants and private grants and donations that such funds
shall not lapse until the completion of the capital project or until the earlier of the expiration of the
federal, state or private grant or donation of the city’s expenditure of all funds received from such grant
or donation. (Emphasis added).
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to previously appropriated funds which are available for expenditure by the City for the payment
of an obligation evidenced by a purchase order issued by the City. Whether appropriated funds are
encumbered only relates to whether they lapse, not how they must ultimately be spent.6 Therefore,
just because an appropriated amount is “encumbered,” does not mean the City must only use those
funds to pay a specific entity related to the encumbrance. See Ex. 4 at 114:12-115:3 (testifying as
to how “the encumbrance is not the binding obligation to a given vendor.”). Rather, it is a tracking
mechanism/administrative tool to determine when certain appropriations have lapsed or not lapsed
at the end of the fiscal year for which the appropriation was approved. The City may use funds
that were previously “encumbered” for one purpose to pay any vendor on that project, especially
when a relationship is terminated or there are no outstanding purchase orders. See id. at 48:17-25;
71:23-72:3; 111:2-21; 113:3-13; 129:4-10. That is what the City did here, consistent with the law,
by paying other third-party vendors after its relationship with Open terminated. Open’s continued
attempt to argue otherwise, without any evidence or legal support for its prejudicial allegations
that the City violated criminal statutes, is improper and should be excluded.7
Finally, contrary to Open’s repeated allegations, the City did not misrepresent “the amount
of remaining funds in a vain attempt” to insulate itself from judgment. Rather, undersigned counsel
informed Open on October 3, 2022, that the City appropriated $12,859,893 for the billing project
6 This is logical. If the City expects a bill to come due in January and does not want appropriated funds to lapse
on December 31, it must either pay early or have some process to ensure the money does not lapse. Encumbering
the funds is that process. It does not mean that the encumbered funds may only be used to pay the January bill
(which may or may not come due).
7 Indeed, encumbrance issues have already been briefed as part of the parties’ discovery disputes and in which
Magistrate Judge Prose determined that Open was not entitled to additional written discovery (see e.g., Dkt. 222;
227).
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and had either spent or encumbered $12,711,375.68 of that amount. See Dkt. 222-3 at 1 (with
$148,517.40 remaining). In support, the City provided Open a detailed chart of encumbrances and
expenditures as of October 2022, that identified the retainage amount subject to the parties’
contracts for $1,086,033 as an encumbrance and $846,271.39 that the City paid on the project that
was not from the amounts appropriated specifically for the project, but from other properly
appropriated funds. Id. at Ex. G. Thus, the remaining appropriated funds in project accounts as of
October 2022 totaled $2,080,821.79 ($148,517.40 + $1,086,033 + $846,271.39). On July 24, 2023,
in response to Open’s request, the City identified $2,329,012 of appropriated funds remaining in
the City’s accounts related to the project. Ex. 5. This is perfectly consistent with the prior
disclosure. The City also noted in the July correspondence that $239,457 of that amount is from
an account for remediation work on the project that was funded after Open’s termination, meaning
$2,089,555 + $239,457 remained in the project accounts. These simple calculations show that the
City never misrepresented any amount in any “vain attempt” to insulate itself.
III. The Limitation of Liability Provision in the MPSA Does Not Apply if the City
Succeeds on its Fraudulent Inducement Claim and Seeks Damages.
Based on Open’s recent submissions to the Court, including its proposed jury instructions
and verdict forms, Open argues that if the City succeeds on its fraudulent inducement claim, and
seeks damages (rather than rescission), then the City’s damages will be limited by the limitation
of liability provision found in Section 12 of the MPSA. While Open previously argued this with
respect to the City’s breach of contract damages [see Dkt. 125 at 28], Open now makes the same
argument should the City choose to seek damages for its fraudulent inducement claim. Such
limitation would be inappropriate as a matter of law. If the City is able to prove fraud in the
inducement, its recovery is not limited to the contracted amount or the liability provision. See
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Audiotext Communs. Network v. US Telecom, 912 F. Supp. 469, 476 (D. Kan. 1995) (holding that
if “plaintiffs are able to prove fraud in the inducement, their recovery is not limited to the
contracted amount.”); see also Netknowledge Techs. LLC v. Rapid Transmit Techs., 269 Fed.
Appx. 443 (5th Cir. 2008) (affirming arbitration award where arbitrator voided limitation of
liability clause due to fraudulent inducement of the entire contract); AHBP LLC v. Lynd Co., 2022
U.S. Dist. LEXIS 209316 (W.D. Tex. Nov. 18, 2022) (declining to limit damages for fraudulent
inducement claim based on limitation of liability provision found in contract).
Further, this supports the City’s position that all evidence of damages should be provided
to the jury, notwithstanding the underlying claim, as previously argued in response to Open’s
attempt to compel the City to elect remedies. Otherwise, if the City proves its fraudulent
inducement claim and is limited in setting forth the damages available to it as a result of Open’s
actions, it would result in an inequitable outcome contrary to the applicable law.
CONCLUSION
For the foregoing reasons, the City respectfully requests that the Court: (1) order that Open
may only call Mr. Hernando Parrott, Mr. Juan Corredor, and Mr. Diego Lopez by deposition
and cannot bring them live if the City is not able to call them live in its case-in-chief or,
alternatively, order them to appear in person to be called during the City’s case in chief; (2)
prevent Open from presenting any argument regarding City’s attempt to “hide” appropriated
funds or “insulate” itself from judgment; and (3) prevent Open from limiting the City’s damages
for fraudulent inducement based on a limitation of liability provision in the parties’ contract,
should the City choose to seek damages, rather than rescission.
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Respectfully submitted this 27th 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 27, 2023 I caused the foregoing document to be electronically filed via CM/ECF system which will send notification of such filing to all counsel of record.
s/Stacy Starr
DORSEY & WHITNEY LLP
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Exhibit 1
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The objections to particular topics, below, are intended to preempt disputes at the deposition about the
scope of and preparation for those topics. By asserting those specific objections, Open is not waiving
any objections that may be raised at the deposition.
For example, Open reserves objections where a topic could be construed to require a witness to
address a level of detail or breadth of information that the witness cannot reasonably be prepared to
address. As an example, Open will be prepared to testify about the specified document in topic 27,
but it cannot reasonably prepare to recite or address every risk it identified for the City over the course
of roughly three years.
Open also reserves objections to the City’s characterizations of certain facts and events in these
topics, which objections generally can be more appropriately lodged—or resolved—in the context of
the deposition.
Topics
Background Regarding Open and Smartflex
1. Organizational structure of Open and the roles and authority of its individuals on
the Project, including the decision making structure for the Project.
Hernando Parrott
2. The creation of Open Smartflex and its subsequent versions/generations, including
the features and functionalities available and/or added to each version/generation, the design and
development of each version/generation, and implementation of each version/generation.
William Corredor
3. Open’s preparation and work performed in order to enter the North American
market, including Open’s internal work or work with any North American vendors such as
Milestone or AAC, including:
a. Any review, assessment, testing or due diligence (and the related results, feedback
or other information received as a result and work performed as a result) of Open
Smartflex performed by Milestone, AAC or any other North American vendor in
connection with Open’s preparation to enter the North American market and/or
in connection with Open’s Response (defined in #13, below).
b. Any internal work, review, assessment, testing, or due diligence performed by
Open;
c. How and when Open determined that Open Smartflex was capable of serving the
North American market including the basis for that determination, and the
individual(s) that made that determination.
Hernando Parrott
4. The consultations and communications that took place between Open and other
persons or entities as detailed in Open’s response provided to the City’s Interrogatory No. 6.
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Hernando Parrott
5. Other projects and customers for which Open successfully implemented Open
Smartflex with similar customer needs and requirements as the City or otherwise successfully
implemented an integrated solution providing bill pay and customer service in one self-service
web portal for broadband and other utilities (such as electric, water, wastewater, storm water, and
so on), including those contained in Open’s response provided to the City’s Interrogatory No. 2.
Hernando Parrott
6. The expertise in the industry and related practices Open purports to have.
Hernando Parrott
7. Open’s software implementation methodology (Diego Lopez) and the layers of
Smartflex, including the “core,” “industry,” and “client domain” layers (Juan Corredor).
8. Open’s “homegrown” portal (as referenced in Open’s response to the City’s
Interrogatory No. 15), including the development of the homegrown portal, the functionalities of
the homegrown portal (including assessment of the same in connection with Open’s Response to
the City’s RFP), prior implementation(s), and decision to stop use or development of the
homegrown portal.
Juan Corredor
Milestone
9. Open’s past and current relationship with Milestone and the related agreements,
including Open’s purchase or license of Milestone’s portal, the timing of Open’s receipt of
Milestone’s portal, the functionalities of the purchased or licensed portal, payment(s) to Milestone for
any milestone achieved by Milestone under the agreement(s) with Open, and the roles and scope of authority
provided by Open to Milestone in connection with the Project.
Hernando Parrott
10. The development of and functionalities of the Portal, including the work Open
performed on the Portal as described in Open’s response to the City’s Interrogatory No. 15, the
development of the broadband specific functionalities, and any changes/updates/improvements
made since purchase of Milestone’s portal.
Juan Corredor
11. Open’s development of the functional matrix for the Portal which Milestone filled
out at Open’s request and the review/analysis/use of the same.
Juan Corredor
12. Open’s due diligence of Milestone, Milestone individuals, and Milestone’s Portal,
including the functional matrix and the meetings with Milestone.
Juan Corredor
Open’s Response to the City’s RFP and Related Representations
13. The drafting and preparation of Open’s proposal (“Response”) to the City’s Request
for Proposal 8697 for “Vendor Selection and Implementation of a Comprehensive Solution for
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Utilities/Broadband Billing (CIS/OSS)” (“RFP”), including all supporting documents.
Hernando Parrott
14. Open’s representations and determinations set forth in the Response, including
those concerning:
a. Open’s determination that the Project schedule and the implementation timeline
in the Response was adequate;
Diego Lopez
b. The expected costs of the Project;
Diego Lopez
c. The determination of the functionalities of the Open Smartflex (including the
Portal) in the Functional Matrix;
Hernando Parrott
d. The staffing requirements proposed for the Project;
Diego Lopez
e. Open’s expertise and experience relevant for the Project;
Hernando Parrott
f. The history, capabilities, and functionalities of the Open Smartflex product; and,
William Corredor
g. The basis for, the considerations undertaken, and the due diligence performed by
Open in connection with each of the above and other representations made in the
Response.
Hernando Parrott
15. The demo(s) provided to the City of Open Smartflex following submission of the
Response, including the demonstration(s) of the Portal both prior to the execution of the contracts
and during the Project.
Hernando Parrott
16. To the extent that Open asserts that its Smartflex product and/or Portal are
“agnostic,” the explanation of what that means and the basis for such assertion.
Juan Corredor
17. The work/analyses/assessments performed by the Product Direction Team of Open
(as identified by Juan Corredor during his deposition) or other contributions by the Product
Direction Team to either Open’s RFP Response, Open’s purchase of the Milestone portal, or the
Project with the City.
Juan Corredor
Contracts Entered
18. The drafting and negotiation of the relevant contracts, including: (a) the MPSA and
Case No. 1:21-cv-02063-CNS-SBP Document 257-1 filed 09/27/23 USDC Colorado pg 4
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all amendments to the MPSA (including the First Amendment), (b) the Software License
Agreement executed on August 9, 2018, (c) the SOW, including the Functional Requirements
Matrix provided therein, executed on August 9, 2018, and (d) Project Change Requests.
Hernando Parrott
19. The considerations and basis for the representations made and promises set forth in
the Parties’ above contracts, including those concerning the Project schedule and implementation
timeline, Project costs, the functionalities of the Open Smartflex, and the staffing requirements.
Diego Lopez
20. The provisions of any of the above contracts that Open alleges the City failed in its
efforts to comply with or perform.
Hernando Parrott
21. The basis for, the considerations undertaken, and the due diligence performed by
Open on the City between the Response and the MPSA/SOW in any way affecting Open’s
representations related to the Project in the MPSA/SOW and/or resulting in any changes in
representations between the Response and the MPSA/SOW.
Hernando Parrott
Staffing
22. Staffing and/or other resources assigned or provided by Open to the Project,
including staffing changes, staffing turnover, and other changes in Open’s resources for the Project.
Diego Lopez
23. Staffing or resources issues on the Project related to either Party and the delays
Open asserts resulted from the same.
Diego Lopez
24. Open’s decision to use Milestone as a Project Manager for the Project, rather than
an internal Project Manager, including the basis for that decision and any related due diligence
performed on Milestone.
Hernando Parrott
25. Open’s decision to use internal staffing following Dwayne Bishop’s departure as
Project Manager, including the basis for that decision.
Hernando Parrott
26. The basis for Open’s position that the City was required to hire an external project
manager for the Project and how Open believes the City’s hiring of an internal project manager
affected the Project.
Hernando Parrott
Smartflex Functionalities and Project Management
27. Open’s assessment and analysis of any and all Project-related risks, including but
not limited to the risks identified in Open’s chart bates labeled Open_Intl_00298474, any revisions
Case No. 1:21-cv-02063-CNS-SBP Document 257-1 filed 09/27/23 USDC Colorado pg 5
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or updates to the same throughout the Project, and any disclosure of identified Project risks to the
City, including the timing of such disclosures.
Diego Lopez
28. Any and all requirements related to broadband or utilities that Open communicated
to or otherwise provided to the City (including the timing of Open’s provision), including those
concerning:
a. Broadband product catalog, vendor contracts, definitions and parameters,
configuration, implementation and schedule plans, or any other broadband related
items; Hernando Parrott
b. Utilities business process definitions, configuration, business cases and test cases,
integration developments, implementation and schedule plans, system testing
plans, or any other utilities related items; Hernando Parrott
c. Any Project Plans, work plans or Gantt charts; objection—this is vague and
overbroad and does not specify the matter at issue as required by Rule 30(b)(6);
we’re not sure how, or who, to prepare for questions about document types
without specifications of the documents and specific subject matter at issue.
Notwithstanding this objection, Open will produce Diego Lopez to testify
generally about Project Plans, work plans, and Gantt charts.
d. Any Microsoft Project files and/or excel files containing a timeline with dates and
activities to be completed; objection—this is vague and overbroad and does not
specify the matter at issue as required by Rule 30(b)(6); we’re not sure how, or
who, to prepare for questions about document types without specifications of the
documents and specific subject matter at issue. However, as noted for Topic 19,
Diego Lopez will be prepared to testify generally about project timeline matters.
Notwithstanding this objection, Open will produce Diego Lopez to testify
generally about documents reflecting Project timelines.
e. Any technical documents related to broadband requirements and the schedules
for those requirements that were provided to the City’s broadband team.
objection—this is vague and overbroad and does not specify the matter at issue
as required by Rule 30(b)(6); we’re not sure how, or who, to prepare for questions
about document types without specifications of the documents and specific
subject matter at issue. Notwithstanding this objection, Open will produce Diego
Lopez to testify generally about the technical specifications for broadband that
the MPSA required the City to provide.
29. The reasons why and how various broadband or utilities requirements from the City
were necessary for Open’s work.
Hernando Parrott
30. What Project requirements and obligations concerning broadband or utilities Open
alleges the City failed to meet or otherwise delayed the Project schedule, including the basis for
any such assertion.
Case No. 1:21-cv-02063-CNS-SBP Document 257-1 filed 09/27/23 USDC Colorado pg 6
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Hernando Parrott
31. The reasons why Open failed to meet the deadlines for Go-Live for Broadband or
Utilities Go-Live.
Diego Lopez
32. Delivery of functionalities of the Open Smartflex to the City, delivery of these
functionalities on a date later than provided in the functional requirements matrix and schedule
incorporated in the Statement of Work and MPSA, and any impact on the remaining functionality
delivery dates provided.
Hernando Parrott
33. Communication and other issues between Milestone and Open individuals during
the Project.
objection—this is vague and overbroad and does not specify the matter at issue as required by Rule
30(b)(6); we’re not sure how, or who, to prepare for questions about all “communication and other
issues between Milestone and Open” since this does not specify subjection matter or time periods
within the three-year-plus collaboration between Open and Milestone on the Project.
Notwithstanding this objection, Open will produce Diego Lopez to testify generall y about the
working relationship between Milestone and Open.
34. The functionalities of Open Smartflex as of the Go-Live for Broadband in August
2019 and the efforts to reach full functionality and stabilization post-go-live.
Diego Lopez
35. The work and/or support provided by Open’s “online support team” after Go-Live
for Broadband and led by Jairo Sanchez.
Diego Lopez
36. Open’s position as to whether Broadband should have gone live in August 2019
and the basis for that position.
Diego Lopez
37. The readiness of Open’s software at each point Open alleges a delay in the Project
schedule was caused by the City.
Diego Lopez
38. The basis for Open’s determination that it delivered 96.4% of Open Smartflex
functionality for Broadband in summer of 2019, including how Open determined the same.
Diego Lopez
39. Communications between and among Open, Milestone, and/or the City concerning
the scheduling for “Go Live for Broadband” and “Utilities Go Live”, and Open’s ability to deliver
the functionalities in the Statement of Work and the deadline provided therein.
Diego Lopez
40. Issues and limitations resulting from the number of available environments for
testing, configuration, and implementation.
Case No. 1:21-cv-02063-CNS-SBP Document 257-1 filed 09/27/23 USDC Colorado pg 7
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7
Diego Lopez
41. Open’s efforts to comply with the MPSA, including providing the required
personnel, resource, configuration, implementation, product functionality, stabilization, and
support.
objection – this is overbroad inasmuch as it effectively covers the entirety of the Project. For
example, the topics asks for a witness who can testify about Open’s efforts to comply with the
MPSA by providing the required implementation. That is effectively asking for a witness who can
testify about Open’s efforts to implement OSF—i.e., the entire Project. This lacks the requisite
specificity for topics under Rule 30(b)(6), and Open cannot determine how, or who, to prepare for
questions about this all-encompassing topic.
42. The training and testing support provided by Open to the Cit y on the Project,
including testing and vetting performed by Open on its deliverables to the City.
Diego Lopez
43. SAOs, Incident SLAs, errors, bugs, severity level 1 issues, and how Open addressed
them.
Diego Lopez
44. Any temporary solutions provided by Open in response to Open Smartflex’s
inability to offer functionalities as identified in the Statement of Work and MPSA, and subsequent
attempts to provide permanent solutions.
Diego Lopez
45. The technical requirements of implementing a new version of Open Smartflex and
problems resulting from the implementation of new versions of Open Smartflex.
Juan Corredor
46. Project Change Requests related to the Project, the justification/basis for the Project
Change Requests, and the work performed pursuant to each.
Diego Lopez
47. The decision not to issue Project Change Request(s) or Change Order(s) aside from
those issued in connection with the Project, for example, the decision to not issue a Project Change
Request prior to the go-live delay for Broadband.
Hernando Parrott
48. The contract requirements and contract milestones Open alleges were met and what
functionalities were provided in the software Open alleges was delivered to the City at any point.
Hernando Parrott
49. Open’s obligations and work under the First Amendment to the MPSA and how
Open alleges the City failed to meet its obligations under the First Amendment.
Hernando Parrott
50. The customer self-service Portal including the Portal that was presented as a part of
the RFP, the work that Open did on the Portal that it sought to implement for the City, the
Case No. 1:21-cv-02063-CNS-SBP Document 257-1 filed 09/27/23 USDC Colorado pg 8
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demos/screenshots of the Portal provided to the City, and the delivery (if any) of the Portal to the
City, including any subsequent versions of the portal delivered to the City.
Juan Corredor
51. Any changes Open asserts the City made to the scope of the Project.
Hernando Parrott
52. Open’s delay of delivering Smartflex to the City and any modifications that Open
made after delivery in order to make Smartflex functional, including but not limited to additional
code written, number of Open hours expended, and the reasons for each subsequent modification
after delivery.
Juan Corredor
53. Open’s representations to the City concerning the functionalities of the Smartflex
product, including the Portal, throughout the course of the Project.
Juan Corredor
Damages
54. Efforts between and among Open, Milestone, and/or the City concerning
negotiations to resolve the parties’ disputes beginning in January 2021.
Hernando Parrott
55. Damages claimed by Open as part of its counterclaims.
Hernando Parrott
56. Any basis for disputing the City’s damages.
Hernando Parrott
57. To the extent that Open asserts that the Parties agreed to an allocation of
“responsibilities” or that the City otherwise made “admissions” of its responsibilities for the issues
and delays on the Project, all such purported allocation of “responsibilities” and “admissions”, the
basis for Open’s assertions regarding the same, and any related analyses and/or negotiations,
whether internally or with the City or others.
objection – this topic refers to quoted terms “responsibilities” and “admissions” without definition
and is therefore vague; it is also insufficiently specific to permit identification and preparation of a
designee to testify for Open; finally, it seeks privileged work product inasmuch as it seeks Open’s
legal theories about the City’s own purported admissions. Notwithstanding this objection, Open
will produce Hernando Parrott to testify about the allocation of responsibility negotiated between
the City and Open in late 2019 and the first half of 2020 that culminated in the First Amendment,
and about the alleged statements of a City official to the City Council about responsibility for delays.
58. Description of Open’s reputation in the market (including the North American
market) prior to, during, and following the Project, and the basis supporting Open’s alleged
reputation at those times.
William Corredor
59. Information provided to or exchanged with any representative of Tualatin Valley
Water District and/or Clean Water Services concerning the Project.
Case No. 1:21-cv-02063-CNS-SBP Document 257-1 filed 09/27/23 USDC Colorado pg 9
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9
Hernando Parrott
60. Open’s efforts to win a bid for any other project in the North American market since
the MPSA and any work performed pursuant to any successful bids.
Hernando Parrott
Open’s Document Access and Collection
61. Open’s access of any City documents maintained on SharePoint (or any other City
database) during the course of the Project, including Open’s course of conduct during the Project
with respect to such documents and Open’s use of such documents.
Hernando Parrott
62. Open’s taking of documents from the City’s SharePoint on or about July 7, 2021,
including: Open objects to the characterization of taking, since these were shared documents over
which the parties had equal access and control. Open will provide witnesses to address copying of
the parties’ documents on the shared drive as follows:
a. Open’s prior access and/or download of those documents specifically
downloaded by Jairo Contreras on July 7, 2021; Hernando Parrott
b. Open’s taking of documents from the City’s SharePoint beginning on or about
July 3, 2021 through July 7, 2021, including the related instructions for that taking
from Hernando Parrott and/or others; Hernando Parrott
c. Open’s decision to have Jairo Contreras email Aaron McClune on July 7, 2021
regarding the “Request to revoke access to FC platforms/accounts.” Hernando
Parrott
63. The basis for making Open’s CORA request for the Vanir memoranda.
Open objects on the basis of privilege, but will designate Hernando Parrott to testify on Open’s
behalf to the extent he can do so without divulging privileged attorney-client communications and
the substance of protected work product.
Case No. 1:21-cv-02063-CNS-SBP Document 257-1 filed 09/27/23 USDC Colorado pg 10
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([KLELW
Case No. 1:21-cv-02063-CNS-SBP Document 257-2 filed 09/27/23 USDC Colorado pg 1
of 12
From:Paul D. Swanson
To:Collard, Case; Alex E. Pierce; Shoaei, Maral; Wechter, Andrea
Cc:Kevin McAdam; Alex D. White; Marcy Weaver
Subject:RE: CFC v. Open - Trial Logistics
Date:Friday, September 22, 2023 9:41:29 AM
Attachments:image001.png
image002.png
EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS.
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
He / Him (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
Case No. 1:21-cv-02063-CNS-SBP Document 257-2 filed 09/27/23 USDC Colorado pg 2
of 12
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.
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.
Case No. 1:21-cv-02063-CNS-SBP Document 257-2 filed 09/27/23 USDC Colorado pg 3
of 12
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
He / Him (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.
Case No. 1:21-cv-02063-CNS-SBP Document 257-2 filed 09/27/23 USDC Colorado pg 4
of 12
Best,
Paul
Paul D. Swanson
He / Him (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 <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 representative 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 No. 1:21-cv-02063-CNS-SBP Document 257-2 filed 09/27/23 USDC Colorado pg 5
of 12
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.
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
Case No. 1:21-cv-02063-CNS-SBP Document 257-2 filed 09/27/23 USDC Colorado pg 6
of 12
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.
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
Case No. 1:21-cv-02063-CNS-SBP Document 257-2 filed 09/27/23 USDC Colorado pg 7
of 12
aepierce@hollandhart.com | T: (303) 295-8063 | M: (720) 610-7886
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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. 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.
Case No. 1:21-cv-02063-CNS-SBP Document 257-2 filed 09/27/23 USDC Colorado pg 8
of 12
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.
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)?
Case No. 1:21-cv-02063-CNS-SBP Document 257-2 filed 09/27/23 USDC Colorado pg 9
of 12
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
WWW.DORSEY.COM :: DENVER :: BIO :: V-CARD
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Thank you.
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.
Case No. 1:21-cv-02063-CNS-SBP Document 257-2 filed 09/27/23 USDC Colorado pg 10
of 12
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 257-2 filed 09/27/23 USDC Colorado pg 11
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Case No. 1:21-cv-02063-CNS-SBP Document 257-2 filed 09/27/23 USDC Colorado pg 12
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-02063-CNS-SP
CITY OF FORT COLLINS,
Plaintiff,
vs.
OPEN INTERNATIONAL, LLC, and OPEN
INVESTMENTS, LLC,
Defendants.
REPORTER'S TRANSCRIPT
Final Pretrial Conference
Proceedings before the HONORABLE CHARLOTTE N. SWEENEY, Judge,
United States District Court for the District of Colorado,
commencing on the 10th day of July, 2023, in Courtroom A702,
United States Courthouse, Denver, Colorado.
APPEARANCES
For the Plaintiff:
CASE L. COLLARD and ANDREA A. WECHTER and MARAL SHOAEI, Dorsey
& Whitney LLP, 1400 Wewatta St., Ste. 400, Denver, CO 80202
JOHN R. DUVAL, Fort Collins City Attorney's Office, P.O. Box
580, Fort Collins, CO 80522
For the Defendants:
PAUL D. SWANSON and ALEXANDRIA E. PIERCE and ALEXANDER D.
WHITE, Holland & Hart LLP, 555 17th St., Ste. 3200, Denver, CO
80201
Sarah K. Mitchell, RPR, CRR, 901 19th Street, Room A252,
Denver, CO 80294, 303-335-2108
Proceedings reported by mechanical stenography;
transcription produced via computer.
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ruling. Before Judge Prose we had said we needed still some
document discovery and this half-day deposition in order to
establish some impeachment evidence around this appropriation
issue. Judge Prose said, Well, now that the defense is out,
you're not getting the documents, but Open can proceed with
the deposition. So it's a half-day deposition set for next
Monday. We gave the city a notice of deposition. It should
be narrow in scope.
THE COURT: And is this about kind of --I take it
there's two issues based on how you've set it out, I think;
the appropriations during the term of the contract in terms of
what could be spent that year or what could be paid that year,
and there's a separate issue about the affirmative defense in
terms of any finding at trial. I assume this deposition is on
the first piece of that issue?
MR. SWANSON: Right. So the deposition is going to
be focused on what appropriations steps did the city take to
try to prevent Open from being able to enforce a judgment, to
be able to collect the amounts it's claiming, to siphon funds
away from what could be collected. We think that that ends up
being relevant to the city's mindset and then also to its
credibility. We think that the question of whether
appropriated funds are going to be available or not, that that
has been resolved by the Court's ruling, and if a judgment is
imposed, Colorado statute has a mechanism that can be used to
Sarah K. Mitchell, RPR, CRR
7
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force either an appropriation or a levy that would then pay
the judgment.
THE COURT: Do you have any response, Mr. Collard, or
is that your understanding?
MR. COLLARD: No, I disagree with most of that, Your
Honor. I think that the appropriation issue as you laid it
out to say that there were appropriations happening during the
course of the project to pay bills as they came up, that's
sort of what we understood this deposition to be about. It's
not some question of whether or not the city was manipulating
appropriations. That's not something that's really been even
alleged and we don't think would be relevant to the trial or
to the issues at trial.
I do think that the issues of what was appropriated
as the project was going along, that is relevant, because
there's going to be a bill, for example, that Open might hold
up and say, Why was this not paid? And the answer might be,
We didn't have funds appropriated at that time. And so I do
think those questions will be relevant to the facts.
On the sort of other half of the issue of when it's
paid, your order was very clear and somewhat limited, and it
was on an affirmative motion for summary judgment, and the
order was an appropriations defense does not serve as a cap on
damages. It can't limit damages. It can't come in here and
say to the jury, they're only entitled to recover a hundred
Sarah K. Mitchell, RPR, CRR
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21-cv-02063-CNS-SP Pretrial Conference 07/10/2023
grand because that's all that's been appropriated so that's
the most damages you can find. Fine. We accept the ruling,
and if we disagree with it down the road, we'll have whatever
appeal rights we have. That's fine. But we're prepared to
try it under your ruling.
I don't think that it gets to a broader question of
collectability, which is what Mr. Swanson was getting towards
to say, Okay, they get a judgment for whatever they're asking
for, $3 million, is that collectible based on the
appropriations law? That's not been addressed, and I don't
think that that needs to be addressed now, Your Honor,
honestly. I think that's something that would be post-verdict
if there was a verdict that was trying to be collected.
THE COURT: On that latter issue I think you're in
agreement, because you're agreeing there's other ways of going
about that, by statute or levy or anything you need.
MR. SWANSON: And that's right. That's not something
that the factfinder needs to resolve.
THE COURT: But let's go back to this first issue,
because that's the first time I heard it, which is why I
wanted a response. This idea of kind of moving money around
or hiding through an appropriation, I hadn't heard that in the
case before. Did you all argue this in front of Judge Prose?
MR. COLLARD: No.
THE COURT: Okay.
Sarah K. Mitchell, RPR, CRR
9
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21-cv-02063-CNS-SP Pretrial Conference 07/10/2023 10
MR. SWANSON: We did, Your Honor. Not to directly
contradict Mr. Collard, but that was a key portion of what we
were saying was important to this deposition. And to add to
this moving around concept, there's statute in Colorado that
makes it an --under the criminal code an offense for a
municipality to spend money that hasn't been appropriated for
a project. That's part of what the city has argued, and we
believe and we've found documents supporting this, that the
city took money specifically appropriated for an encumbered,
for Open, and then tried to move it around as soon as it
terminated Open in a way that made, they thought, a judgment
uncollectible for Open. So we think that that's a live and
important issue to be able to present based on what we find at
the deposition.
MR. COLLARD: Your Honor, may I briefly respond?
THE COURT: Yes.
MR. COLLARD: There's two or three things here. One
is in the dispute with Judge Prose, they said they --the depo
was never at issue. Our position has been since the depo was
ordered, I think by Judge Hegarty previously, please take the
depo. It was ordered in March, and we said, Come take the
deposition. They had all these complaints about, Give us more
documents, more documents. And we said, We've given you
everything. Come take the deposition, and you'll see. And
they said, No, we want more documents. So that's the piece of
Sarah K. Mitchell, RPR, CRR
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the dispute that went to Judge Prose. The depo was never in
dispute.
They lost what they moved to compel on with Judge
Prose because what they moved to compel on was the documents
saying we need all these documents under the sun. So the
extent that they're arguing we need these documents for
credibility and issues like that, they lost that issue.
11
That's not --that was no basis to compel the deposition
because there was no deposition to compel. We agreed to that.
That's one piece.
The other piece is this idea that it's something
under a criminal statute and that's somehow relevant is a
woeful misunderstanding of appropriations law in a couple of
ways. One is it's not a part of this case. There's no claim
that the appropriations were done improperly. There's no
associated claim in this case about this idea of some sort of
liability. That's one. It's just not in this case.
Two is it's --here's the misunderstanding part.
Appropriations aren't made for Open. They're made for a
project. And so if a bill comes in on that project, the money
has to get paid from money that was appropriated for that
project. And so the idea that paying someone else on a
project is somehow a criminal criminal act by the city is
unfounded. There's just been no basis for that anywhere in
this case.
Sarah K. Mitchell, RPR, CRR
Case No. 1:21-cv-02063-CNS-SBP Document 257-3 filed 09/27/23 USDC Colorado pg 7
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Case No. 1:21-cv-02063-CNS-SBP Document 257-4 filed 09/27/23 USDC Colorado pg 1
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30(b)(6) City of Fort Collins Travis Storin - July 17, 2023
1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
2
Civil Action No.: 21-cv-02063-CNS-SP
3
CITY OF FORT COLLINS,
4
Plaintiff/Counterclaim Defendant,
5
vs.
6
OPEN INTERNATIONAL, LLC,
7
Defendant/Counterclaim Plaintiff,
8
and
9
OPEN INVESTMENTS, LLC,
10
Defendant.
11 _____________________________________________________
12 VIDEOTAPED RULE 30(b)(6) DEPOSITION OF
CITY OF FORT COLLINS BY TRAVIS STORIN
13
July 17, 2023
14 _____________________________________________________
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Page 1
Veritext Legal Solutions
303-988-8470
Case No. 1:21-cv-02063-CNS-SBP Document 257-4 filed 09/27/23 USDC Colorado pg 2
of 8
30(b)(6) City of Fort Collins Travis Storin - July 17, 2023
Page 6
1 P R O C E E D I N G S
2 THE VIDEOGRAPHER: Good afternoon. 12:27:25
3 Going on the record at 12:27 p.m. Mountain Time on 12:27:26
4 July 17, 2023. Please note that microphones are 12:27:32
5 sensitive and may pick up whispering and private 12:27:36
6 conversations. Please mute your phones at this time. 12:27:40
7 Audio and video recording will continue to take place 12:27:43
8 unless all parties agree to go off the record. 12:27:47
9 This is Media Unit Number 1 of the 12:27:47
10 video recorded 30(b)(6) deposition of the City of 12:27:51
11 Fort Collins with designated representative Travis 12:27:55
12 Storin taken by counsel for the defendant in the 12:27:59
13 matter of the City of Fort Collins v. Open 12:28:02
14 International, LLC, et al., filed in the United 12:28:06
15 States District Court, District of Colorado, Case 12:28:11
16 Number 21-cv-02063-DDD-NYW. The location of this 12:28:12
17 deposition is Dorsey & Whitney LLP, at 1440 Wewatta 12:28:22
18 Street, Suite 400, Denver, Colorado. 12:28:28
19 My name is Dennis Clayton representing 12:28:30
20 Veritext Legal Solutions, and I'm the videographer. 12:28:33
21 The court reporter today is Jennifer Windham from the 12:28:37
22 firm Veritext Legal Solutions. I'm not related to 12:28:41
23 any party in this action, nor am I financially 12:28:42
24 interested in the outcome. 12:28:46
25 If there are any objections to the 12:28:47
Page 7
1 proceedings, please state them at the time of your 12:28:48
2 appearance. Counsel and all present, including 12:28:51
3 remotely, will now state their appearances and 12:28:54
4 affiliations for the record, beginning with the 12:28:55
5 noticing attorney. 12:28:58
6 MR. SWANSON: Paul Swanson and Alex 12:28:59
7 Pierce from Holland & Hart on behalf of the Open 12:29:03
8 defendants. 12:29:06
9 MR. COLLARD: Case Collard and John 12:29:06
10 Duval on behalf of the City. 12:29:07
11 TRAVIS STORIN, 12:29:07
12 having been first duly sworn, was examined and 12:29:07
13 testified as follows: 12:29:07
14 EXAMINATION 12:29:07
15 BY MR. SWANSON: 12:29:16
16 Q. Hi, Mr. Storin. 12:29:16
17 A. Good morning. Or afternoon, I suppose. 12:29:22
18 Q. I'm going to ask the court reporter to 12:29:27
19 hand you a document marked as Exhibit 900. 12:29:28
20 THE REPORTER: Can we go off the
21 record?
22 THE VIDEOGRAPHER: Going off the
23 record. The time is 12:29.
24 (Recess taken, 12:29 p.m. to
25 12:30 p.m.) 12:30:57
Page 8
1 THE VIDEOGRAPHER: Back on the record. 12:30:57
2 The time is 12:30. 12:31:00
3 (Deposition Exhibit 700 was marked.) 12:31:00
4 Q. (BY MR. SWANSON) Do you have a 12:31:05
5 document labeled as Exhibit 700, Mr. Storin? 12:31:06
6 A. I do. 12:31:09
7 Q. Do you recognize this document? 12:31:10
8 A. I do not. 12:31:12
9 Q. I'll ask you to flip to the last page 12:31:12
10 of text for that document that starts as Exhibit 1. 12:31:16
11 Have you seen that before? 12:31:19
12 A. Not in my immediate recollection. 12:31:20
13 Q. And just look through those paragraphs 12:31:27
14 numbered 1 through 7 and let me know when you've had 12:31:30
15 a chance to review them. 12:31:34
16 A. (Deponent complied.) Okay. 12:32:11
17 Q. And you said you have not seen these 12:32:28
18 numbered paragraphs here in Exhibit 1; is that 12:32:30
19 correct? 12:32:34
20 A. I don't recall seeing it in a document 12:32:34
21 like this, but I think these are concepts that I've 12:32:37
22 been familiar with throughout the life of this case. 12:32:39
23 Q. Okay. You're testifying today on 12:32:40
24 behalf of the City of Fort Collins; is that correct? 12:32:43
25 A. I am. 12:32:47
Page 9
1 Q. And are you prepared to testify about 12:32:47
2 the subject matter described in the paragraphs on 12:32:49
3 Exhibit 1? 12:32:53
4 A. Yes. 12:32:53
5 Q. How did you prepare for the deposition 12:32:54
6 today, if at all? 12:32:55
7 A. Consultation with our team of attorneys 12:32:57
8 and review of documents that, I believe, have been 12:33:02
9 provided as part of the case. And some independent 12:33:06
10 review of City code and charter language. 12:33:10
11 Q. Did you meet with anyone from the City 12:33:15
12 to prepare for your deposition today? 12:33:17
13 A. Outside of the meeting with our 12:33:20
14 attorneys? No. 12:33:22
15 Q. Okay. Did you talk with the chief 12:33:24
16 buyer for this project Gerry Paul? 12:33:27
17 A. Yes. Within the aforementioned 12:33:29
18 conversation with the attorneys. 12:33:34
19 Q. Oh, I see. So when you said -- let me 12:33:35
20 ask it again. 12:33:38
21 In preparing with your counsel, did you 12:33:39
22 also meet with or talk with City employees? 12:33:41
23 A. Yes. 12:33:45
24 Q. Mr. Paul is one of those? 12:33:46
25 A. Uh-huh. 12:33:48
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1 nonappropriation being an event that -- upon which 12:38:55
2 the City can terminate. 12:39:00
3 Q. (BY MR. SWANSON) Is there an 12:39:02
4 inconsistency that you're concerned about? 12:39:03
5 MR. COLLARD: Object to form. 12:39:05
6 A. Not in substance. 12:39:07
7 Q. (BY MR. SWANSON) In form? 12:39:09
8 A. No. I mean, it's not identical text 12:39:10
9 but it carries the same effect. 12:39:13
10 Q. Okay. They're getting at the same 12:39:15
11 thing? 12:39:17
12 A. Uh-huh. 12:39:18
13 MR. COLLARD: Object to form. 12:39:19
14 Q. (BY MR. SWANSON) Was that a "yes"? 12:39:20
15 A. That's a "yes." 12:39:21
16 Q. So funds are not appropriated to 12:39:21
17 cover -- let me strike that. 12:39:24
18 If funds were not appropriated to cover 12:39:26
19 the contract between the City and Open, the City 12:39:28
20 could void its contract obligations with Open; is 12:39:30
21 that right? 12:39:34
22 A. Not precisely, no. We wouldn't 12:39:34
23 typically have an appropriation that specifies the 12:39:41
24 vendor by name. But apart from that, if the 12:39:45
25 appropriation doesn't take place, then yes, it is 12:39:49
Page 15
1 common that we would be able to terminate. 12:39:52
2 Q. But the contract has to be covered with 12:39:54
3 an appropriation, correct? 12:39:57
4 MR. COLLARD: Object to form. 12:39:59
5 A. Yes. We will not initiate a 12:40:01
6 competitive procurement until such time that an 12:40:06
7 appropriation is in effect. 12:40:09
8 Q. (BY MR. SWANSON) And if funds were not 12:40:09
9 appropriated to cover the contract with Open, then 12:40:11
10 the City could void that contract, correct? 12:40:13
11 MR. COLLARD: Object to form. 12:40:18
12 A. I'm going to say yes. But you know, 12:40:20
13 the framing of your question is such that 12:40:24
14 appropriation for Open -- and we wouldn't -- we would 12:40:27
15 not write an appropriation that way. We would write 12:40:30
16 an appropriation towards the project. 12:40:34
17 Q. (BY MR. SWANSON) So the contract is 12:40:36
18 what has to have an appropriation to support it; 12:40:43
19 otherwise, the contract is void, right? 12:40:46
20 MR. COLLARD: Object to form. 12:40:48
21 A. Yes. 12:40:50
22 Q. (BY MR. SWANSON) And so if there were 12:40:50
23 not funds appropriated to cover the contract, the 12:40:53
24 contract would be void according to the City; is that 12:40:56
25 right? 12:40:59
Page 16
1 A. Could you repeat that? 12:41:00
2 MR. SWANSON: Will you read it back, 12:41:00
3 please. 12:41:00
4 (The previous question was read back as 12:41:00
5 follows: "And so if there were not funds 12:40:51
6 appropriated to cover the contract, the contract 12:40:53
7 would be void according to the City; is that right?") 12:40:57
8 A. I'm sorry to get so technical but the 12:41:15
9 appropriation exists for an umbrella project, a 12:41:19
10 basket of services, so we don't write it to cover the 12:41:25
11 contract. It works in the opposite direction, where 12:41:28
12 when we enter a contract, staff first confirms that 12:41:31
13 funds are available under previous appropriations. 12:41:35
14 Q. (BY MR. SWANSON) Where I'm confused 12:41:38
15 about this is that you've testified that the City can 12:41:41
16 void a contract if there are not funds appropriated 12:41:46
17 to pay that contract, right? 12:41:49
18 A. If they're not available funds for the 12:41:50
19 project associated for which a contract is a 12:41:54
20 component of a project. 12:41:57
21 Q. So if there are not funds -- 12:42:00
22 appropriated funds to cover a contract between Open 12:42:07
23 and the City, the City can void that contract, 12:42:11
24 correct? 12:42:16
25 A. To the extent that the overall project 12:42:16
Page 17
1 appropriation is not sufficient to pay that 12:42:18
2 particular contract, yes. 12:42:21
3 Q. And you said that the City would never 12:42:22
4 initiate a procurement process for a contract unless 12:42:25
5 it had appropriated funds to cover that contract, 12:42:30
6 correct? 12:42:33
7 A. To cover the project. 12:42:33
8 Q. What's the difference? 12:42:34
9 A. Well, let's just work with this 12:42:36
10 example, the CIS billing project. You know, we get a 12:42:42
11 project appropriation through the council that is 12:42:46
12 intended to cover all needs associated with it, you 12:42:49
13 know, and in this case we had third-party project 12:42:52
14 management. We brought on some third-party 12:42:56
15 consulting and change management towards the end. 12:42:56
16 You know, those are all kind of under the auspices of 12:42:59
17 the project and, you know, there's a number of 12:43:03
18 components there. 12:43:05
19 Q. I'm sorry. I don't understand that. 12:43:06
20 The City can void the contract -- the 12:43:15
21 MPSA between it and Open if funds are not 12:43:19
22 appropriated to cover that contract, correct? 12:43:22
23 MR. COLLARD: Object to form. Asked 12:43:25
24 and answered. 12:43:27
25 A. By way of the overall project 12:43:28
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1 Q. And it says here, "Please see the work 13:22:24
2 Logan and I did to confirming the retainage amounts 13:22:27
3 for OPEN" and then in parentheses it says "OASIS 13:22:28
4 Project." And then the number it gives is 13:22:34
5 $1,086,033. 13:22:39
6 Do you see that? 13:22:40
7 A. I do. 13:22:41
8 Q. As of June 17, 2021, did the City have 13:22:41
9 retainage on the Open contract in that amount? 13:22:49
10 A. As of what date? 13:22:54
11 Q. The date of this e-mail, June 17, 2021. 13:22:56
12 A. I don't recall that exact date that we 13:22:59
13 released that retainage. 13:23:02
14 Q. Has that retainage been released? 13:23:04
15 MR. COLLARD: Object to form. 13:23:07
16 A. Well, when we cancelled the purchase 13:23:10
17 orders associated with this vendor, the encumbrances 13:23:13
18 automatically released. Because it's not considered 13:23:19
19 an enforceable obligation in the eyes of the system, 13:23:23
20 at least. 13:23:26
21 Q. (BY MR. SWANSON) Does the City still 13:23:27
22 hold any amount of the retainage from the Open 13:23:28
23 contract? 13:23:31
24 MR. COLLARD: Object to form. 13:23:34
25 A. I don't believe we have any that's 13:23:35
Page 47
1 accumulated in the retainage account. 13:23:37
2 Q. (BY MR. SWANSON) And then similar but 13:23:41
3 different question: Are there any funds encumbered 13:23:43
4 for the Open contract that were treated as retainage? 13:23:47
5 MR. COLLARD: Object to form. 13:23:51
6 A. Could you repeat that. 13:23:53
7 Q. (BY MR. SWANSON) At some point during 13:23:54
8 the contract, the City was accumulating retainage 13:23:59
9 funds that would be paid to Open upon satisfaction of 13:24:04
10 certain conditions, correct? 13:24:11
11 A. Yes. 13:24:12
12 Q. And this e-mail says that as of 13:24:13
13 June 17, 2021, there was a $1,086,000 that -- excuse 13:24:21
14 me. $1,086,033 held as retainage; is that right? 13:24:25
15 A. That's what this e-mail is indicating 13:24:32
16 in the attachment, yes. 13:24:35
17 MR. COLLARD: Sorry. Object to the 13:24:38
18 form of the last question. 13:24:39
19 Go ahead. 13:24:41
20 A. Yes. I believe that we held the 13:24:44
21 retainage as of that date and any hesitation you 13:24:47
22 sense is -- usually I would have a record or 13:24:51
23 something to refer back to to give me certainty that 13:24:53
24 it was there on that date. 13:24:56
25 Q. (BY MR. SWANSON) And the record -- the 13:24:58
Page 48
1 attachment to this e-mail, which shows the retainage 13:25:02
2 by PO number and invoice number, that's not enough to 13:25:07
3 refresh your recollection? 13:25:12
4 A. Well, this is a worksheet, a work paper 13:25:13
5 that somebody assembled, right? We would typically 13:25:16
6 true up our general ledger system to reflect that. 13:25:23
7 And that's -- I consider the ledger to be the system 13:25:26
8 of record. 13:25:29
9 So I'm not trying to be semantical. I 13:25:31
10 think for purposes of this, okay. The staff 13:25:34
11 confirmed it was 1,086,000 in retainage, but I would 13:25:37
12 typically go and check the ledger. 13:25:42
13 Q. To your knowledge, was there a point 13:25:44
14 during the term of the contract when the City held 13:25:47
15 about a million dollars of retainage? 13:25:51
16 A. Yes. 13:25:54
17 Q. And that million dollars of retainage, 13:25:55
18 that was encumbered by the City for payment on that 13:25:57
19 contract; is that right? 13:26:02
20 MR. COLLARD: Object to form. 13:26:04
21 A. Yes. So where an appropriation is not 13:26:06
22 necessarily contract specific, an encumbrance would, 13:26:09
23 again, as a management tool, kind of allow a project 13:26:14
24 manager to see, okay, where have I made anticipated 13:26:17
25 commitments. 13:26:20
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1 Q. (BY MR. SWANSON) Just to make sure I 13:26:21
2 have a clear answer: The million dollars or so of 13:26:22
3 retainage was encumbered by the City, correct? 13:26:26
4 A. Yes. 13:26:30
5 Q. Is any of that retainage still 13:26:30
6 encumbered by the City? 13:26:33
7 A. It's unlikely. If there are no 13:26:36
8 purchase orders, then there's not going to be an 13:26:39
9 encumbrance. 13:26:42
10 Q. You don't know, though, whether that 13:26:44
11 money is still encumbered? 13:26:47
12 A. I don't think we have any outstanding 13:26:49
13 purchase orders for Open at this point, and to that 13:26:51
14 extent, we wouldn't have an encumbrance, either. 13:26:53
15 Q. So you don't believe that there is any 13:26:53
16 money encumbered in the City's system for the Open 13:26:56
17 contract; is that right? 13:26:59
18 A. No. I don't believe so. Not -- not if 13:27:00
19 we're using the encumbrance terminology. 13:27:03
20 Q. Do you know when those encumbrances 13:27:06
21 were lifted? 13:27:10
22 A. Not precisely, no. 13:27:11
23 Q. I want to go back to Exhibit 702. And 13:27:12
24 I want to look at the last attachment to that letter, 13:27:26
25 which is Exhibit G to Exhibit 702. 13:27:33
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1 you said? 15:17:08
2 A. Ostensibly. We, you know, could have 15:17:09
3 attached those budget dollars to a different 15:17:13
4 enforceable PO that still carried the prior 15:17:17
5 conditions and there would then be an encumbrance of 15:17:20
6 the appropriation against that PO instead of this 15:17:24
7 one. 15:17:27
8 Q. To do that, to be able to spend those 15:17:27
9 funds somewhere else, would the City either have to 15:17:30
10 change the encumbrance or cancel the PO that 15:17:37
11 supported the encumbrance? 15:17:43
12 A. We would cancel the PO that supported 15:17:45
13 the encumbrance. 15:17:48
14 Q. So the only two ways that the 2020 15:17:50
15 lapsing funds that were encumbered for Open would 15:17:53
16 cease to be available to pay Open are that the 15:17:59
17 carryforward budget was deemed void because the 15:18:05
18 contract is gone, or the encumbrance went away 15:18:08
19 because the City terminated the purchase order that 15:18:14
20 supported the encumbrance. 15:18:17
21 Am I understanding that correctly? 15:18:20
22 A. Those both sounded the same to me. 15:18:22
23 Q. Then walk me through, again, the two 15:18:27
24 ways that the $1.1 million or so of encumbered 2021 15:18:28
25 lapsing funds -- excuse me, 2020 lapsing funds would 15:18:33
Page 111
1 have gone away. 15:18:36
2 How would that -- how would some of 15:18:38
3 that have no longer been available to Open? 15:18:39
4 MR. COLLARD: Object to form. 15:18:41
5 A. Okay. So we've got a $1.1 million 15:18:43
6 carryforward associated with the order or orders with 15:18:49
7 Open. Turn the calendar over to January 1st. We 15:18:52
8 bring those dollars with us, and then one of three 15:18:56
9 things can happen: You can pay the supplier and then 15:19:01
10 the encumbrance goes away because you've actually 15:19:04
11 tendered real payment. 15:19:07
12 Two, if we were to cancel the orders or 15:19:08
13 the contract underlying it, then we would have had no 15:19:10
14 need for that budget carryforward. We would have had 15:19:14
15 no need to bring those dollars with us from 2020, and 15:19:17
16 so they would have released back into reserves. 15:19:21
17 Or three, we could cancel the contract 15:19:23
18 and establish a new purchase order or add to an 15:19:25
19 existing purchase order on a different supplier. And 15:19:29
20 the budget dollars that we brought with us from 2020 15:19:34
21 would still be applicable in 2021. 15:19:36
22 Q. (BY MR. SWANSON) Thank you. Okay. Do 15:19:40
23 you agree that not all of the $1.1 million in 2021 15:19:43
24 lapsing funds was paid to Open? 15:19:48
25 A. I do. 15:19:50
Page 112
1 Q. So then for the remaining portion, a 15:19:51
2 few hundred thousand dollars at least, that money 15:19:54
3 ended up being -- it ceased to be encumbered for the 15:20:00
4 benefit of Open, correct? 15:20:08
5 A. Yes. Upon the time that we terminated 15:20:09
6 for default, yes. 15:20:12
7 Q. Okay. The City knew that Open claimed 15:20:14
8 in a pending lawsuit that it was entitled to payment 15:20:16
9 from the City under the MPSA and the First Amendment, 15:20:21
10 correct? 15:20:26
11 MR. COLLARD: Object to form. 15:20:26
12 A. Yes. That's correct. 15:20:27
13 Q. (BY MR. SWANSON) But the City believed 15:20:29
14 that because it had terminated the contract it's 15:20:32
15 obligations under the contract no longer bounded; is 15:20:35
16 that right? 15:20:39
17 MR. COLLARD: Object to form. 15:20:39
18 A. Yes. We didn't anticipate any future 15:20:40
19 payments to Open. 15:20:44
20 Q. (BY MR. SWANSON) Okay. But the City 15:20:45
21 knew that Open was claiming the right to those 15:20:46
22 payments, correct? 15:20:49
23 MR. COLLARD: Object to form. 15:20:53
24 A. Yes, I believe so. I'd need to 15:20:54
25 reconstruct the specific dates and what did we know 15:20:57
Page 113
1 and when. But I likely gave the directive to cancel 15:21:00
2 these POs. 15:21:04
3 Q. (BY MR. SWANSON) Despite knowing that 15:21:05
4 Open claimed the right to receive payment based on 15:21:07
5 the contract and the POs that encumbered funds for 15:21:10
6 those contracts? 15:21:14
7 MR. COLLARD: Object to form. 15:21:15
8 A. Yes. The -- you know, as I said 15:21:16
9 earlier, an encumbrance is a management tool for 15:21:19
10 essentially earmarking funds on an administrative 15:21:24
11 basis. We would rely upstream on the appropriation 15:21:27
12 and the contract for, you know, what are the rights 15:21:30
13 and obligations that City staff has to carry out. 15:21:33
14 Q. (BY MR. SWANSON) So is it the City's 15:21:37
15 position that it could sign contractual documents 15:21:41
16 like the PCRs, fund those PCR obligations with 15:21:46
17 encumbered appropriations, and then unilaterally 15:21:54
18 choose to terminate those obligations and avoid 15:22:01
19 paying for them despite a court order? 15:22:07
20 MR. COLLARD: Object to form. Hold on. 15:22:11
21 "Despite a court order" part, I'm going to give you a 15:22:19
22 privilege instruction to the extent you have 15:22:22
23 information -- knowledge about this based on 15:22:25
24 discussion with counsel -- outside counsel or 15:22:27
25 Mr. Duval, don't divulge that. If you have an 15:22:32
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1 independent understanding, you can answer. 15:22:35
2 A. Okay. So the question is: Is it the 15:22:37
3 City's position that it was right and appropriate to 15:22:38
4 terminate these POs? 15:22:41
5 Q. (BY MR. SWANSON) I will -- I'll reask 15:22:43
6 it, and subject to your counsel's instruction, I 15:22:44
7 don't want you to divulge privileged communications. 15:22:48
8 I just want to understand the City's position about 15:22:53
9 how appropriations interact with the City's 15:22:54
10 obligations to pay Open. 15:22:56
11 A. Okay. 15:23:00
12 Q. Is it the City's position that it could 15:23:00
13 sign contractual obligations like the PCRs, fund 15:23:03
14 those obligations with encumbered appropriations, but 15:23:08
15 then cancel those contractual obligations and thereby 15:23:12
16 avoid having to pay those contractual obligations 15:23:20
17 even if there is a judgment entered against the City? 15:23:25
18 MR. COLLARD: Sorry. Object to the 15:23:28
19 form of the question. 15:23:30
20 If you understand it, you may answer. 15:23:32
21 Same privilege instruction. 15:23:34
22 A. Well, I'll answer -- it -- I'm not sure 15:23:36
23 how to juggle the court order part. But, you know, 15:23:43
24 for us in our administrative practices, the 15:23:48
25 encumbrance is not the binding obligation to a given 15:23:51
Page 115
1 vendor. So you know, in my profession we look at 15:23:55
2 economic substance over a legal form when we make 15:24:01
3 these determinations -- 15:24:04
4 Q. (BY MR. SWANSON) I'm going to -- I 15:24:05
5 don't mean to cut you off, but I think we're going to 15:24:05
6 go in a direction that it's just -- it's not actually 15:24:07
7 going to be responsive. I will take out the court 15:24:08
8 order part to see if we can simplify it in my 15:24:12
9 question. 15:24:12
10 It is it the City's position that it 15:24:15
11 could sign contractual obligations like the PCRs, 15:24:19
12 fund those obligations with encumbered 15:24:23
13 appropriations, but then cancel those contractual 15:24:27
14 obligations and thereby not have to pay them no 15:24:33
15 matter what because now the encumbered appropriations 15:24:39
16 have been removed? 15:24:43
17 MR. COLLARD: Object to the form of the 15:24:44
18 question. 15:24:46
19 Go ahead. 15:24:46
20 A. And the last part is, can we cancel it 15:24:47
21 and use that as grounds for nonpayment -- 15:24:55
22 Q. (BY MR. SWANSON) Correct. 15:24:59
23 A. -- because the appropriation is -- 15:25:00
24 well, so yeah. The short answer is yes. That is the 15:25:00
25 City's position. 15:25:04
Page 116
1 Q. I want to move on to the reconciliation 15:25:05
2 of J.D. Edwards appropriations and encumbrances from 15:25:11
3 spring of 2021. Under the MPSA, the First Amendment, 15:25:20
4 and the other change orders -- the other PCRs, the 15:25:32
5 City had contractual obligations to pay Open about 15:25:36
6 $12 million as of spring 2021 if Open fully performed 15:25:40
7 the contract; is that right? 15:25:47
8 A. That's right. 15:25:48
9 (Deposition Exhibit 712 was marked.) 15:26:07
10 Q. (BY MR. SWANSON) The court reporter 15:26:07
11 handed you Exhibit 712. This one is a little 15:26:10
12 complicated, so I'll just give a brief overview. 15:26:13
13 Exhibit 712 attaches several attachments. In the 15:26:15
14 interest of not giving you anything more complicated 15:26:20
15 than what I have given you, I've given you just three 15:26:23
16 parts of those attachments behind the cover e-mail. 15:26:26
17 So you're getting the first tab of the 15:26:30
18 document called "Summary of Open Change Requests." 15:26:33
19 And that tab is called "Open Contract Summary." 15:26:38
20 Then the second document you're getting 15:26:44
21 is the third tab of that attachment called "Open 15:26:46
22 Change" -- "Summary of Open Change Request." And 15:26:51
23 that tab is called "Open CHG Request." 15:26:53
24 And then the last thing you're getting 15:26:59
25 attached there is the attachment called "Executive 15:27:02
Page 117
1 Session Input." We're going to go through them 15:27:07
2 slowly so you don't have to internalize them all 15:27:09
3 right now. But just for the record, I wanted to set 15:27:11
4 out what you have in case your counsel wants to look 15:27:14
5 at other parts of this, they'll know what is here and 15:27:16
6 what is not. 15:27:18
7 If you can keep those in the order that 15:27:20
8 they were given to you and you can even write, if you 15:27:24
9 want, just a one, two, and three on the top of those 15:27:24
10 attachments. If you want, that may facilitate the 15:27:30
11 discussion. 15:27:38
12 A. Okay. This is two? 15:27:40
13 Q. That's two. 15:27:42
14 A. You called it "CHG." I don't see that. 15:27:45
15 Q. It is called that in the list of 15:27:47
16 attachments in the cover e-mail, but at the top left 15:27:48
17 I think you will see it says, like, "change order 15:27:50
18 number" or something like that. 15:27:53
19 So I want to look at the first 15:28:06
20 attachment that says at the top "Open Contract 15:28:09
21 Estimate After Review." Let me know when you've got 15:28:17
22 that in front of you. 15:28:19
23 A. I do. 15:28:20
24 Q. Go ahead and take a look at that. It's 15:28:21
25 a half page of text and numbers, so let me know when 15:28:25
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1 until recommended media change. 15:40:36
2 Q. (BY MR. SWANSON) But if we go back to 15:40:44
3 the first attachment to Exhibit 712, the Open 15:40:45
4 contract estimate after review, the City believed at 15:40:50
5 that time in May of 2021 that it had encumbered in 15:40:56
6 J.D. Edwards only about $11 million; is that right? 15:41:01
7 A. Are you referring to the 15:41:06
8 11.9 million -- 15:41:07
9 Q. No -- 15:41:07
10 A. -- or are you referring to the -- 15:41:10
11 Q. I'm referring to the total 12,031,000 15:41:10
12 minus the yellow highlighted 1,043,000. 15:41:14
13 MR. COLLARD: I'm not sure what the 15:41:24
14 question is. Object to form because I don't know 15:41:26
15 what the question is. 15:41:27
16 Q. (BY MR. SWANSON) Looking over that Open 15:41:28
17 contract estimate, the City believed when it created 15:41:30
18 this estimate in May of 2021 that it had encumbered 15:41:34
19 in J.D. Edwards only about $11 million of the 15:41:38
20 $12 million -- roughly $12 million it had contracted 15:41:44
21 to pay Open; is that accurate? 15:41:46
22 MR. COLLARD: Object to form. 15:41:48
23 A. Well, it's not necessarily just 15:41:49
24 encumbered, right? Some of these funds had been 15:41:51
25 spent, ergo are not encumbered anymore. 15:41:55
Page 127
1 Q. (BY MR. SWANSON) Thank you. Encumbered 15:41:57
2 or spent. Only about $11 million of the 12 15:41:59
3 million -- roughly $12 million it had contracted to 15:42:04
4 pay Open. 15:42:07
5 A. Yes. I think that's correct. 15:42:08
6 MR. COLLARD: Object to form. 15:42:10
7 A. Because, you know, we've got the order 15:42:12
8 from June that you referenced earlier. 15:42:14
9 Q. (BY MR. SWANSON) And that order from 15:42:16
10 June was intended to plug the hole of the missing 15:42:18
11 encumbrance in J.D. Edwards; is that right? 15:42:25
12 MR. COLLARD: Object to form. 15:42:29
13 A. We're making some presumptions in that 15:42:30
14 from earlier. But yes, that looked to be a PO that 15:42:33
15 was kind of catching up to what Amendment 1 had put 15:42:37
16 into place in the associated Appropriation 76. 15:42:40
17 Q. (BY MR. SWANSON) What is J.D. Edwards? 15:42:43
18 A. It's our enterprise resource planning 15:42:47
19 platform, so general ledger, payroll, HR -- you know, 15:42:48
20 human capital, asset managements, employee benefits. 15:42:52
21 Q. So at this point in May of 2021, 15:42:58
22 $11 million had been encumbered for or paid to Open; 15:43:13
23 is that correct? 15:43:17
24 A. Through that date and time, yes. 15:43:18
25 Q. For the unencumbered $1 million that 15:43:21
Page 128
1 the City had -- roughly $1 million that the City had 15:43:30
2 contracted for with Open, the fact that that roughly 15:43:33
3 $1 million had not been encumbered does not 15:43:39
4 necessarily mean that there was not an appropriation 15:43:42
5 to cover it, correct? 15:43:45
6 A. That's correct. 15:43:47
7 Q. And in fact, the City had already paid 15:43:48
8 some of that missing $1 million encumbrance when it 15:43:51
9 paid the second Milestone under the First Amendment, 15:43:59
10 right? 15:44:03
11 A. Yes. 15:44:03
12 MR. COLLARD: Object to form. 15:44:04
13 Q. (BY MR. SWANSON) And it's not the 15:44:06
14 City's position that it could void a contract only 15:44:12
15 because funds to support that contract have not been 15:44:17
16 encumbered, right? 15:44:22
17 A. I mean, there's -- you said "void." If 15:44:24
18 we broaden that to terminate, nonperformance. 15:44:29
19 Q. Right. Right. But if the only issue 15:44:33
20 is a lack of encumbrance, it is not the City's 15:44:36
21 position that that's a basis to void or terminate a 15:44:40
22 contract, correct? 15:44:44
23 MR. COLLARD: Object to form. 15:44:45
24 A. If the only issue is an appropriation 15:44:46
25 or lack thereof. 15:44:50
Page 129
1 Q. (BY MR. SWANSON) Not appropriation. 15:44:51
2 Encumbrance. Those are different, right? 15:44:55
3 A. They are. 15:44:55
4 Q. So if the only issue is that there is a 15:44:56
5 missing encumbrance to pay a contract obligation, 15:44:59
6 that is not a grounds to terminate or void that 15:45:04
7 contract, correct? 15:45:09
8 A. No. Here again, encumbrance is an 15:45:10
9 administrative tool. We have binding language 15:45:14
10 upstream. 15:45:19
11 MR. SWANSON: We can go off the record. 15:45:24
12 THE VIDEOGRAPHER: Going off the 15:45:29
13 record. This is the end of Media Number 2. The time 15:45:34
14 is 3:45 p.m. 15:45:38
15 (Recess taken, 3:45 p.m. to 3:55 p.m.) 15:45:43
16 THE VIDEOGRAPHER: We're back on the 15:55:31
17 record. This is the beginning of Media Number 3 of 15:55:33
18 the 30(b)(6) deposition of the City of Fort Collins 15:55:37
19 with designated representative Travis Storin. The 15:55:37
20 time is 3:55 p.m. 15:55:42
21 Q. (BY MR. SWANSON) Mr. Storin, I think 15:55:43
22 you have in front of you the last attachment from 15:55:45
23 Exhibit 712, which should say "Request for Proposal" 15:55:50
24 at the top left-hand side of the page; is that right? 15:55:53
25 A. Yes. 15:55:56
33 (Pages 126 - 129)
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CASE L. COLLARD
(303) 352-1116
collard.case@dorsey.com
July 24, 2023
VIA E -MAIL
Alexandria E. Pierce
Holland & Hart
555 17th Street, Suite 3200
Denver, CO 80202
(303)295-8063
Email: aepierce@hollandhart.com
Re: City of Fort Collins v. Open International, et al.
Dear Alex,
I am writing in response to your July 18, 2023 letter regarding Open’s request during the
City’s 30(b)(6) appropriations deposition for the total amount of remaining appropriated funds for
the CIS/OSS billing system project. As of July 14, 2023, there are $2,329,013 of appropriated
funds in the City’s accounts related to the CIS/OSS billing system project. Please note that
$239,457 of that amount is from an account for remediation work on the project that was funded
after Open’s termination.
Sincerely,
Case L. Collard
Case No. 1:21-cv-02063-CNS-SBP Document 257-5 filed 09/27/23 USDC Colorado pg 2
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