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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 Case No. 1:21-cv-02063-CNS-SBP Document 257 filed 09/27/23 USDC Colorado pg 1 of 13 1 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. Case No. 1:21-cv-02063-CNS-SBP Document 257 filed 09/27/23 USDC Colorado pg 2 of 13 2 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 Case No. 1:21-cv-02063-CNS-SBP Document 257 filed 09/27/23 USDC Colorado pg 3 of 13 3 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 Case No. 1:21-cv-02063-CNS-SBP Document 257 filed 09/27/23 USDC Colorado pg 4 of 13 4 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 Case No. 1:21-cv-02063-CNS-SBP Document 257 filed 09/27/23 USDC Colorado pg 5 of 13 5 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 Case No. 1:21-cv-02063-CNS-SBP Document 257 filed 09/27/23 USDC Colorado pg 6 of 13 6 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. Case No. 1:21-cv-02063-CNS-SBP Document 257 filed 09/27/23 USDC Colorado pg 7 of 13 7 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). Case No. 1:21-cv-02063-CNS-SBP Document 257 filed 09/27/23 USDC Colorado pg 8 of 13 8 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). Case No. 1:21-cv-02063-CNS-SBP Document 257 filed 09/27/23 USDC Colorado pg 9 of 13 9 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 Case No. 1:21-cv-02063-CNS-SBP Document 257 filed 09/27/23 USDC Colorado pg 10 of 13 10 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. Case No. 1:21-cv-02063-CNS-SBP Document 257 filed 09/27/23 USDC Colorado pg 11 of 13 11 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 Case No. 1:21-cv-02063-CNS-SBP Document 257 filed 09/27/23 USDC Colorado pg 12 of 13 12 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 Case No. 1:21-cv-02063-CNS-SBP Document 257 filed 09/27/23 USDC Colorado pg 13 of 13 Exhibit 1 Case No. 1:21-cv-02063-CNS-SBP Document 257-1 filed 09/27/23 USDC Colorado pg 1 of 10 1 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. Case No. 1:21-cv-02063-CNS-SBP Document 257-1 filed 09/27/23 USDC Colorado pg 2 of 10 2 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 Case No. 1:21-cv-02063-CNS-SBP Document 257-1 filed 09/27/23 USDC Colorado pg 3 of 10 3 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 of 10 4 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 of 10 5 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 of 10 6 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 of 10 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 of 10 8 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 of 10 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 of 10 ([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 CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this email. From: Shoaei.Maral@dorsey.com <Shoaei.Maral@dorsey.com> Sent: Wednesday, August 16, 2023 4:23 PM To: Alex E. Pierce <AEPierce@hollandhart.com>; collard.case@dorsey.com; andrea.wechter@dorsey.com Cc: Paul D. Swanson <PDSwanson@hollandhart.com>; Kevin McAdam <KCMcAdam@hollandhart.com>; Alex D. White <ADWhite@hollandhart.com>; Marcy Weaver <MWeaver@hollandhart.com> Subject: RE: CFC v. Open - Trial Logistics External Email Alex, Thanks for your email. Below please find our response in red to each of the points raised, followed by a question of our own. 1. How to handle witness appearances for trial • Since we’ve both identified some will-call witnesses that are associated with the other party, we’d like to talk about how to ensure attendance. For example, for current employees, do we want to agree on appearances? For example, we intend to have at trial the four Open witnesses on the City’s will-call list and would be willing to discuss waiving subpoenas. We do not believe subpoenas are needed for party witnesses, but in any event, yes, we would like our will-call Open witnesses to be available in-person. Would the City be amenable to a reciprocal arrangement like that? The City intends to make its current employees available in-person and again, do not believe subpoenas are necessary for party witnesses. What about for former employees and third parties represented by Dorsey, like Mr. Beckstead or Dr. Frey? As we mentioned during the Final Pretrial Conference and as set forth in the Final Pretrial Order, Dr. Frey will not be able to attend the trial in-person due to medical reasons. However, we have confirmed that she will be available over Zoom. As for Mr. 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 CONFIDENTIAL COMMUNICATION E-mails from this firm normally contain confidential and privileged material, and are for the sole use of the intended recipient. Use or distribution by an unintended recipient is prohibited, and may be a violation of law. If you believe that you received this e-mail in error, please do not read this e-mail or any attached items. Please delete the e-mail and all attachments, including any copies thereof, and inform the sender that you have deleted the e-mail, all attachments and any copies thereof. 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 of 12 Case No. 1:21-cv-02063-CNS-SBP Document 257-2 filed 09/27/23 USDC Colorado pg 12 of 12 ([KLELW Case No. 1:21-cv-02063-CNS-SBP Document 257-3 filed 09/27/23 USDC Colorado pg 1 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 21-cv-02063-CNS-SP CITY OF FORT COLLINS, Plaintiff, vs. OPEN INTERNATIONAL, LLC, and OPEN INVESTMENTS, LLC, Defendants. REPORTER'S TRANSCRIPT Final Pretrial Conference Proceedings before the HONORABLE CHARLOTTE N. SWEENEY, Judge, United States District Court for the District of Colorado, commencing on the 10th day of July, 2023, in Courtroom A702, United States Courthouse, Denver, Colorado. APPEARANCES For the Plaintiff: CASE L. COLLARD and ANDREA A. WECHTER and MARAL SHOAEI, Dorsey & Whitney LLP, 1400 Wewatta St., Ste. 400, Denver, CO 80202 JOHN R. DUVAL, Fort Collins City Attorney's Office, P.O. Box 580, Fort Collins, CO 80522 For the Defendants: PAUL D. SWANSON and ALEXANDRIA E. PIERCE and ALEXANDER D. WHITE, Holland & Hart LLP, 555 17th St., Ste. 3200, Denver, CO 80201 Sarah K. Mitchell, RPR, CRR, 901 19th Street, Room A252, Denver, CO 80294, 303-335-2108 Proceedings reported by mechanical stenography; transcription produced via computer. Case No. 1:21-cv-02063-CNS-SBP Document 257-3 filed 09/27/23 USDC Colorado pg 2 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21-cv-02063-CNS-SP Pretrial Conference 07/10/2023 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 Case No. 1:21-cv-02063-CNS-SBP Document 257-3 filed 09/27/23 USDC Colorado pg 3 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21-cv-02063-CNS-SP Pretrial Conference 07/10/2023 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 8 Case No. 1:21-cv-02063-CNS-SBP Document 257-3 filed 09/27/23 USDC Colorado pg 4 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Case No. 1:21-cv-02063-CNS-SBP Document 257-3 filed 09/27/23 USDC Colorado pg 5 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Case No. 1:21-cv-02063-CNS-SBP Document 257-3 filed 09/27/23 USDC Colorado pg 6 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21-cv-02063-CNS-SP Pretrial Conference 07/10/2023 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 of 7 ([KLELW Case No. 1:21-cv-02063-CNS-SBP Document 257-4 filed 09/27/23 USDC Colorado pg 1 of 8 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 _____________________________________________________ 15 16 17 18 19 20 21 22 23 24 25 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 3 (Pages 6 - 9) Veritext Legal Solutions 303-988-8470 Case No. 1:21-cv-02063-CNS-SBP Document 257-4 filed 09/27/23 USDC Colorado pg 3 of 8 30(b)(6) City of Fort Collins Travis Storin - July 17, 2023 Page 14 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 5 (Pages 14 - 17) Veritext Legal Solutions 303-988-8470 Case No. 1:21-cv-02063-CNS-SBP Document 257-4 filed 09/27/23 USDC Colorado pg 4 of 8 30(b)(6) City of Fort Collins Travis Storin - July 17, 2023 Page 46 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 Page 49 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 13 (Pages 46 - 49) Veritext Legal Solutions 303-988-8470 Case No. 1:21-cv-02063-CNS-SBP Document 257-4 filed 09/27/23 USDC Colorado pg 5 of 8 30(b)(6) City of Fort Collins Travis Storin - July 17, 2023 Page 110 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 29 (Pages 110 - 113) Veritext Legal Solutions 303-988-8470 Case No. 1:21-cv-02063-CNS-SBP Document 257-4 filed 09/27/23 USDC Colorado pg 6 of 8 30(b)(6) City of Fort Collins Travis Storin - July 17, 2023 Page 114 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 30 (Pages 114 - 117) Veritext Legal Solutions 303-988-8470 Case No. 1:21-cv-02063-CNS-SBP Document 257-4 filed 09/27/23 USDC Colorado pg 7 of 8 30(b)(6) City of Fort Collins Travis Storin - July 17, 2023 Page 126 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) Veritext Legal Solutions 303-988-8470 Case No. 1:21-cv-02063-CNS-SBP Document 257-4 filed 09/27/23 USDC Colorado pg 8 of 8 ([KLELW Case No. 1:21-cv-02063-CNS-SBP Document 257-5 filed 09/27/23 USDC Colorado pg 1 of 2 1400 Wewatta Street | Suite 400 | Denver, CO | 80202-5549 | T 303.629.3400 | F 303.629.3450 | dorsey.com 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 of 2