HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 243 - City's Response Motion In LimineIN 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.
THE CITY OF FORT COLLINS’S RESPONSE TO OPEN’S MOTION IN LIMINE
Under this Court’s Standing Order, “[m]otions in limine are strongly discouraged when
the motion cannot be resolved until evidence is presented at trial.” CNS Civ. Standing Order III.D.1
Open’s Motion contravenes this Order to improperly re-litigate issues it lost on its summary
judgment and 702 motions. The Court should deny Open’s motion in its entirety.
Request 1 should be denied: Open’s argument that the City did not disclose “legal
damages” for its fraudulent inducement and negligent misrepresentation claims is belied by the
law and the record. As for the law, if the City does not rescind its agreements with Open, its only
available other remedy is to affirm the agreements and seek damages. See Gordon-Tiger Mining
1 Or as the Court instructed the parties’ at the Pre-Trial Conference: “[M]ost things are better ruled on at trial when
the evidence is being presented and coming in. It’s really the exception that I would rule on something in advance and
it would be highly prejudicial if the jury even heard it uttered, so keep that in mind when you’re deciding what to file.”
Ex. 1, (Hearing Transcript) at 22:24-23:7.
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& Reduction Co. v. Brown, 56 Colo. 301, 312 (Colo. 1914) (“When, however, he elects to waive
the fraud such election is irrevocable and his remedy thereafter is an action for damages.”); W.
Cities Broadcasting, Inc., v. Schueller, 849 P.2d 44, 48 (Colo. 1993). (“A plaintiff who has been
fraudulently induced to enter a contract may either rescind the contract or affirm the contract and
recover in tort for the damages caused by the fraudulent act.”). Open’s interpretation of “legal”
damages to be limited to damages for breach of contract is unfounded and improper for a motion
in limine.2 See Moreno v. Zimmerman, 2021 U.S. Dist. LEXIS 254844, at *2 (D. Wyo. June 17,
2021) (denying motion in limine “directed at argument, not evidence”).
Nevertheless, Open has been on notice of the City’s various categories of damages since
at least Oct. 24, 2022, when the City served its damages expert report by Ronald Seigneur. There,
the City categorized the damages sought as either “Repudiating/Rescinding the Contract” or
“Enforcing the Contract/Contract Valid” and included breakdown of damages for more than just
breach of contract, including lost staffing inefficiencies, overhead expenses, and lost revenue that
the City would not have incurred absent Open’s fraudulent acts. Dkt. 174-1 at Sch. A. Indeed, Mr.
Seigneur’s Opinions 5-6 did not limit the City to seeking breach of contract damages, but rather
“rescission or enforcement of the contract” which can also apply to claims for fraud or negligent
misrepresentation. Id. at 9. Further, on Dec. 7, 2022, counsel for the City provided a detailed letter
to Open’s counsel outlining the City’s damages. Dkt. 240-4 (never stating solely “breach of
contract” damages). Open never requested additional information or clarification. Moreover, after
Judge Hegarty permitted the City to amend its Complaint to add a negligent misrepresentation
2 Open’s reliance on Nutritional Biomimetics, LLC v. Empirical Labs Inc., 2018 U.S. Dist. LEXIS 217389, at *15-16
(D. Colo. Dec. 28, 2018) in support of its argument is unavailing. There, the plaintiff ignored every opportunity to
disclose its supplemental damages. Here, the City disclosed its intent to seek tort damages in its Amended Complaint
and in its expert report on damages disclosed on October 24, 2022, as well as in communications with Open’s counsel.
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claim on Jan. 26, 2023 [Dkt. 191], the City explicitly requested damages including “at least the
funds paid by the City to Open, funds paid by the City to consultants to work on the Project, lost
revenue from trying to work with Open instead of another vendor that could have provided a timely
solution.” Dkt. 192 at 23, ¶114. Open’s newfound claim that the City “never sought or disclosed
legal damages” for its tort claims is disingenuous and incorrect.
Open also had the ability to seek additional information from the City but failed to do so.
Open cancelled the Dec. 2022 deposition of the City’s damages expert, Mr. Seigneur, which it
could have used to further understand the City’s damages, and never sought to reschedule it. See
Dkt. 174-2; Dkt. 174-3.3 Since Jan. 2023, Open has sought (and received) additional discovery
from the City when it had a genuine need, including documents subject to privilege disputes,
responses to discovery requests, and even took an additional Rule 30(b)(6) deposition of the City
on July 17, 2023—a week after the Pre-Trial Conference. See Dkt. 205, 220, 223, 227; see also
Ex. 2. Open’s claim that it had “no opportunity to take discovery on tort damages” is not accurate.
Rather, Open seems to be regretting its discovery strategy. The Court should deny Request 1.
Request 2 should be denied: The Court should reject Open’s request to exclude a USB
drive and its contents. First, and most importantly, it is Open’s USB drive—not the City’s. In
Sept. 2018, Open delivered the USB drive to the City and represented it contained the software
required for the first milestone payment under the MPSA. However, the drive did not contain the
necessary software to achieve the first milestone payment and, instead, contained jumbled code
that the City was unable to decipher. Even assuming that the City did not “timely disclose” the
3 Open’s argument that “it now has no way of defending against the methodology or implementation of the unknown
damages theory…” is false because the methodology is explained in Mr. Seigneur’s report. See Dkt. 174. In fact, Open
already attempted to discredit Mr. Seigneur’s methodology in its Rule 702 motion, which the Court denied. See Dkt.
150, 216. This is just Open’s second bite of the apple in excluding Mr. Seigneur’s testimony.
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USB, Open has suffered no harm or prejudice and cannot assert that it did not have a prior copy in
its possession. See Regalado v. Albuquerque Police Dep’t, 2009 U.S. Dist. LEXIS 149802, at *15-
16 (D.N.M. Sep. 28, 2009) (declining to exclude photos disclosed for the first time during
summary judgment because the defendant took the photos on the night of incident at issue).
Second, after the USB drive was referenced in texts produced by Open on Oct. 31, 2022, in
response, the City made the USB available for inspection on Dec.16, 2022. Ex. 3. Open chose to
not seek a copy of its contents until March 2023, presumably because it full well knew that it
contained what it downloaded and delivered to the City. See Ex. 4. Despite seeking other discovery
and depositions since the close of discovery on Nov. 14, 2022 (even continuing the initial Apr. 14,
2023 pretrial conference to permit completion of discovery [Dkt. 206]), Open never requested
additional discovery on its own USB drive and raised no concerns about it until this motion. Open
should not be rewarded for its own delay, especially since it is its own USB drive, and there is no
prejudice to Open. See Esteban-Garcia v. Wal-Mart Stores E. LP, 2022 U.S. Dist. LEXIS 203580
(S.D. Fla. Nov. 8, 2022) (denying motion in limine because it was a “disguised, and untimely,
discovery dispute” that should have been raised months prior). The Court should deny Request 2.
Request 3 should be denied: Spanish-language exhibits should not be excluded. First, the
City provided certified translations of all Spanish-language documents on Sept. 8—nearly six
weeks before trial. Ex. 5. There is no requirement that the City provide these earlier. Second,
Open’s own witnesses often communicated in Spanish in emails during the course of working on
the Project for the City. Open essentially seeks to exclude key communications about the Project
because its witnesses wrote them in Spanish, rather than English. Such exclusion—especially in
light of certified English translations—would be highly prejudicial to the City by excluding Open’s
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documents simply because Open’s witnesses drafted them in Spanish. On the other hand, denying
this request would not prejudice Open as the documents were written by Open’s own witnesses
and Open will have an opportunity to ask the witness to explain their own statements at trial.
Therefore, the Court should deny Request 3 altogether.4
Request 4 should be denied: Open cannot exclude the City’s evidence on breach of
contract damages by seeking a legal determination in a motion in limine. In fact, Open raised this
exact issue in its attempt to exclude Mr. Seigneur’s testimony regarding City’s damages in its 702
motion. See Dkt. 150. The Court denied Open’s relief, agreeing with the City, that “the proper
vehicle to resolve these questions is a motion for summary judgment, not a motion to exclude
expert testimony under Rule 702.” Dkt. 216 at 6 (citation omitted); Colo. Ctr. For Healing Touch
v. Healing Touch Int’l, 2017 U.S. Dist. LEXIS 232657, *12 (D. Colo. Jan. 3, 2017) (“Defendant
cannot circumvent the Rules of Civil Procedure by raising a substantive legal issue in a motion in
limine.”). Open’s repeated request should be denied.
Moreover, “to receive an in limine ruling, a movant must show that objected-to evidence
meets the ‘high standard’ of being ‘clearly inadmissible.’” Curtis Park Group LLC v. Allied World
Specialty Ins. Co., No. 20-cv-00552-CNS-NRN (D. Colo. Feb. 23, 2023) (J. Sweeney) (denying
motion). Open has not met such burden. As the Court previously held, the “parties raise a fact issue
as to when the event giving rise to liability occurred”. Dkt. 225 at 15 (internal quotations omitted).
Thus, the City is permitted to introduce evidence of its breach of contract damages for the jury to
decide the disputed factual issue as to “when the event giving rise to liability occurred.” See Dry
4 Should Open have objections to the specific translations, it can raise them on a document-by-document basis. See
Pinon Sun Condo. Ass’n v. Atain Specialty Ins., 2020 WL 1452166, at *3 (D. Colo. Mar. 25, 2020) (a “court may deny
a motion in limine when it lacks the necessary specificity with respect to the evidence to be excluded.”).
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Clean Super Ctr., Inc. v. Kwik Indus., Inc., 2012 WL 503510, at *4 (D. Colo. Feb. 15, 2012) (“An
in limine motion is not a proper vehicle for a party to ask the Court to weigh the sufficiency of the
evidence to support a particular claim or defense, because that is the function of a motion for
summary judgment, with its accompanying and crucial procedural safeguards.”).
Regardless of any contractual limit on damages, the City must be able to present for the
jury’s consideration the full range of its categories of damages for breach of contract which already
survived summary judgment and a 702 motion. The jury will assess the facts related to each
category independently. For instance, the jury may agree with the City’s proposed damage for
replacement costs and not agree to payments to consultants for project management. See Dkt. 174-
1 at Sch. A; see, e.g., Church of the Open Door v. Church Mut. Ins. Co., 604 F. Supp. 3d 543, 548-
49 (W.D. Tex. 2022) (admitting evidence of all damages to the jury despite contract limitation).
Any contractual limitation that may apply can be applied, if necessary, after the jury assesses the
various categories of damages sought.
Request 5 should be denied: Open’s request to exclude evidence and argument regarding
rescission should be denied. First, Open’s argument is in direct contravention of the Court’s
statements during the parties’ Pre-Trial Conference whereby the Court advised that “if there was
an issue for [the Court], it’s related to a remedy versus a finding of liability. So the jury will be
hearing, in my mind, all of the evidence, and there would be a limited portion that I’m doing if I
conclude that’s in my purview.” Dkt. 237-1 at 25:21-24. Second, Open’s request is redundant of
its motion to compel the City to elect remedies. Compare Dkt. 240 at 6 to Dkt. 232 at 5-6.
Nonetheless, as set forth in the City’s response (incorporated here by reference) and given the
overlapping facts and the City’s constitutional right to a jury before any bench trial, a full jury trial
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is the most effective way of resolving this dispute. The jury can resolve disputed facts underlying
Open’s waiver arguments for rescission and, if necessary, award fraud damages in lieu of
rescission. The jury can also address the City’s various affirmative defenses—of fraud, among
others—to Open’s breach of contract counterclaim and its claim for fraud simultaneously (without
needing separate consideration of fraud-rescission as a claim and fraud as an affirmative defense).
If the jury “determine[s] that” Open committed fraud and the City “did not waive the remedy of
rescission,” then the Court can decide how to implement it. Humphrey v. Escalera Res. Co., 2018
U.S. Dist. LEXIS 92688, *17-18 (D. Colo. May 31, 2018) (applying rescission as remedy after
jury verdict). The Court should deny this request, or at minimum, reserve ruling until necessary.
Request 6 should be denied: Despite this Court’s directives, Open improperly seeks a
blanket evidentiary ruling that all statements made by third-parties, TMG and Vanir, constitute
statements that are not hearsay based solely on the assertion that TMG and Vanir are agents of the
City. This misses the point and misstates the conferral. The City did not decline to stipulate that
TMG and Vanir personnel were generally agents of the City, but pointed out that an agreement
that a third party was an “agent” did not end a Rule 801(d)(2)(D) inquiry as to whether a particular
statement was not hearsay. Indeed, the Rule requires that the statement by an agent be “within the
scope of the agency or employment, made during the existence of the relationship.” Accordingly,
counsel explained that it is not “a black or white answer, especially since some of this may be on
a document-by-document (or evidentiary) basis.” Ex. 6.5 In a follow-up conferral, the City
reiterated its position and that it would be open to stipulating to specific documents including TMG
5 In particular, “an employee’s statements are not attributable to [his or] her employer as a party-opponent admission
in an employment dispute unless the employee was ‘involved in the decision-making process affecting the
employment action’ at issue.” Ellis v. J.R.'s Country Stores, Inc., 779 F.3d 1184, 1202 (10th Cir. 2015).
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and Vanir personnel, but could not agree to a blanket evidentiary determination that all such
statements were not hearsay without even knowing the statement or document at issue or sought
to be introduced at trial. The Court should deny this improper blanket evidentiary request. See
Chimney Rock Pub. Power Dist. v. Tri-State Generation & Transmission Ass’n, 2014 U.S. Dist.
LEXIS 56994, at *8 (D. Colo. Apr. 21, 2014) (“The Court will not issue such a blanket evidentiary
ruling, particularly where a fact-intensive evaluation of hearsay exceptions may be necessary.”).
Request 7 should be denied: Open asks the Court to exclude “any evidence of pre-contract
misrepresentation by Open” if the City is required to make an early election of remedies before
trial and elects damages. This request, again, is largely duplicative of Open’s arguments in its
motion to compel the City to elect remedies. Compare Dkt. 240 at 8 to Dkt. 232 at 4-5. The Court
should deny Open’s request for the same reasons set forth in the City’s response to Open’s election
of remedies motion [Dkt. 237]. Also, as set forth with respect to Request 1 above, the City pled
legal damages under its fraud and negligent misrepresentation claims and the jury would hear
evidence of those claims to determine liability and damages if the City elects to seek damages
under those claims; that is, the City’s election of damages would not result in a dispositive ruling.6
Notwithstanding this, the City has asserted fraud as an affirmative defense to Open’s breach of
contract counterclaim and will present evidence of Open’s misrepresentations to the jury
regardless of its affirmative claims. The Court should deny this request and Open’s motion in its
entirety.
6 Open’s request essentially asks that Court to determine liability for fraudulent inducement and negligent
misrepresentation. This is improper. See Dry Clean Super Ctr., Inc., 2012 WL 503510, at *4.
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Respectfully submitted this 15th day of September, 2023.
DORSEY & WHITNEY LLP
s/ Maral J. Shoaei
Case Collard
Andrea Ahn Wechter
Maral J. Shoaei
1400 Wewatta Street, Suite 400
Denver, Colorado 80202-5549
Telephone: (303) 629-3400
Fax: (303) 629-3450
E-mail: collard.case@dorsey.com
E-mail: wechter.andrea@dorsey.com
E-mail: shoaei.maral@dorsey.com
Attorneys for Plaintiff City of Fort Collins
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CERTIFICATE OF SERVICE
I hereby certify that on September 15, 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 Star
DORSEY & WHITNEY LLP
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Exhibit 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-02063-CNS-SP
CITY OF FORT COLLINS,
Plaintiff,
vs.
OPEN INTERNATIONAL, LLC, and OPEN
INVESTMENTS, LLC,
Defendants.
REPORTER'S TRANSCRIPT
Final Pretrial Conference
Proceedings before the HONORABLE CHARLOTTE N. SWEENEY, Judge,
United States District Court for the District of Colorado,
commencing on the 10th day of July, 2023, in Courtroom A702,
United States Courthouse, Denver, Colorado.
APPEARANCES
For the Plaintiff:
CASE L. COLLARD and ANDREA A. WECHTER and MARAL SHOAEI, Dorsey
& Whitney LLP, 1400 Wewatta St., Ste. 400, Denver, CO 80202
JOHN R. DUVAL, Fort Collins City Attorney's Office, P.O. Box
580, Fort Collins, CO 80522
For the Defendants:
PAUL D. SWANSON and ALEXANDRIA E. PIERCE and ALEXANDER D.
WHITE, Holland & Hart LLP, 555 17th St., Ste. 3200, Denver, CO
80201
Sarah K. Mitchell, RPR, CRR, 901 19th Street, Room A252,
Denver, CO 80294, 303-335-2108
Proceedings reported by mechanical stenography;
transcription produced via computer.
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21-cv-02063-CNS-SP Pretrial Conference 07/10/2023 21
future, but if there is one, just let us know.
MR. COLLARD: Your Honor, to clarify, do you want us
to let you know if we schedule it or if we think we're
settling it or both?
THE COURT: If you schedule a private mediation, I'd
just shoot a quick joint e-mail and just say we're just
letting you know and we'll update you within a week after.
It's just good for our planning because sometimes we
double-set things, and if we hear word that maybe one goes
away, we try and squeeze something else in just to get people
moving through. So if you can do that, that would be great.
I'm going to add in on page 44 what our current trial
date setting is, as well as our trial prep conference, because
that's not in there. But we are set for a two-week trial
starting October 23rd. The trial prep conference is
September 29th. It sounds like you've all reviewed the
standing order. You know there's a lot due before that
conference. The only thing we've really changed that I'll
tell you is on exhibits, morning of trial or whenever they're
due, you'll only need the original and one set, not two sets,
and here that will be helpful because I anticipate there's
going to be a lot of exhibits.
If you have any other questions as you're preparing
for the trial prep conference, again, a joint e-mail is fine.
We will try to get back to you at the end of the day. Don't
Sarah K. Mitchell, RPR, CRR
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21-cv-02063-CNS-SP Pretrial Conference 07/10/2023 22
file motions about how to do things. Just send us an e-mail,
and we'll get back to you. Jury instructions, I'm an O'Malley
fan, so all of my stock instructions come from O'Malley. If
you want to skip stock instructions, you may, because I
already have a set that I generally use that generally
encompasses most of the introductory set in O'Malley, but I'll
leave that to you.
In terms of the other claims, most of them --well,
all of them are state law claims, so the Colorado jury
instructions obviously have those laid out. In contract cases
we've had surprising disagreements about the elements of a
claim, so hopefully you all can work through that before you
submit those, because in reading the Colorado jury
instructions, this doesn't need to be a complicated jury
instruction. The more you have in it, the less likely the
jury is going to understand it. So if you can't agree, the
ones we come up with will be quite --will make this much more
simple than probably either of you imagined, so it behooves
you to try and reach agreement so we're not the ones doing it.
I think that's all I wanted to address. We'll make
those couple of changes, get that out to you, assume
everything's going fine with the depo on Monday until Judge
Prose lets us know differently. May see that in a motion in
limine. Keep in mind the motions in limine are very limited.
You get one. All issues need to be in there. It's page
Sarah K. Mitchell, RPR, CRR
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21-cv-02063-CNS-SP Pretrial Conference 07/10/2023 23
limited. So, again, think carefully about that. My
inclination on motions in limine is most things are better
ruled on at trial when the evidence is being presented and
coming in. It's really the exception that I would rule on
something in advance and it would be highly prejudicial if the
jury even heard it uttered, so keep that in mind when you're
deciding what to file.
Any other questions or matters we can address today?
MR. SWANSON: Two small ones, Judge. If we proceed
to a split trial of bench and jury, would it be your
expectation that we would start one on the 23rd and start the
other one on the 30th? Keep the dates, in essence.
THE COURT: Ideally, yeah. I definitely do not want
to set it for another week later, so ideally we would do it
all.
MR. SWANSON: Okay. And the other question was
because of the nature of the claims and cross-claims here, I
wonder if you have a practice for having to only call each
witness once as opposed to calling them in both cases. And if
you have a practice, we can consider that, or if you need us
to make a proposal as the parties to you. I would welcome
your guidance.
THE COURT: Sure. Generally I leave it to the
parties. I will say because of the number of exhibits and the
issues here, you all are going to be pressed on time. It may
Sarah K. Mitchell, RPR, CRR
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Exhibit 2
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30(b)(6) City of Fort Collins Travis Storin - July 17, 2023
1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
2
Civil Action No.: 21-cv-02063-CNS-SP
3
CITY OF FORT COLLINS,
4
Plaintiff/Counterclaim Defendant,
5
vs.
6
OPEN INTERNATIONAL, LLC,
7
Defendant/Counterclaim Plaintiff,
8
and
9
OPEN INVESTMENTS, LLC,
10
Defendant.
11 _____________________________________________________
12 VIDEOTAPED RULE 30(b)(6) DEPOSITION OF
CITY OF FORT COLLINS BY TRAVIS STORIN
13
July 17, 2023
14 _____________________________________________________
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Page 1
Veritext Legal Solutions
303-988-8470
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([KLELW
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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
December 16, 2022
VIA E -MAIL
Paul D. Swanson
Holland & Hart
555 17th Street, Suite 3200
Denver, CO 80202
(303) 295-8578
Email: pdswanson@hollandhart.com
Re: City of Fort Collins v. Open International, et al.
Dear Paul,
Included in Open’s production of Mr. Parrott’s text/WhatsApp messages, was
Open_Intl_00359063, a chain of messages including a picture of a black box containing a pen
and flash drive. Based on these messages, we now understand that these materials are not
purely marketing materials that Open previously provided to the City. While we believe you may
have copies of these already in some format, we are making them available under Federal Rule
of Civil Procedure 34 for inspection at our office should you wish to review them. As they are
tangible items, we cannot “produce” them in the same manner as other electronic documents or
scanned documents.
Please let me know if you have any questions or if you would like to set up a day/time to
inspect the materials.
Sincerely,
Case L. Collard
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Exhibit 4
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From:Anna C. van de Stouwe
To:Collard, Case; Shoaei, Maral; Wechter, Andrea
Cc:Paul D. Swanson; Alex D. White; Alex E. Pierce
Subject:CFC/Open - Appropriations Discovery
Date:Tuesday, March 21, 2023 6:15:29 PM
Attachments:image001.png
2023-03-21 Appropriations Search Terms[21145483v3].DOCX
2023-02-14 Open"s Fifth Set of Discovery Requests to Plaintiff.pdf
2021-12-8 Open Supplement to Proposed Search Terms for the City_s Document Collection.docx
EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS.
Case, Andrea, Maral,
I’m writing to confer on the scope of the City’s document collection efforts in response to Open’s Fifth Set
of Discovery Requests in order to ensure the City has adequate time to make its responses and
productions before the April 10 deadline set by the Court.
The City suggested during yesterday’s conference that it does not plan to collect new documents in
response to Open’s RFPs 22–24, but additional searches of custodian files are necessary for two reasons.
First, the original search terms we agreed upon (attached) cover the periods of 11/1/17 through 7/1/21
and, for three of the search terms, 11/1/20 through 7/1/21. In contrast, our RFPs 22–24 seek documents
from Summer 2017 through the present. Specifically, RFPS 22 and 23 seek documents from 7/1/17
through the present, and RFP 24 seeks documents from 8/1/18 through the present. New document
collection will be required to address the temporal scope of Open’s requests.
Second, RFPs 22–24 seek some documents that would not necessarily be captured by the original search
terms we agreed upon, as well as documents that would not have been captured in a responsiveness
review of the original collection. None of our previous search terms addressed appropriations or
expenditures. Accordingly, we are proposing some additional search terms (attached) to capture the
documents sought by our recent requests.
While we appreciate that some of the proposed search terms were previously collected in full (e.g.,
“Oasis”), the City’s prior responsiveness review of those previously collected documents was not focused
on appropriations. By collecting these documents for the appropriations-related search terms,
custodians, and dates, the City will have a complete set of appropriations related documents from which it
could then remove any documents that were previously produced, leaving only the unproduced
appropriations-related documents for review.
Concerning custodians, we believe additional document collection can be limited to Gerry Paul, Mike
Beckstead, Travis Storin, and any other individuals the City identifies in response to Open’s Interrogatory
27. Please let us know if these custodians and terms are agreeable, or if you would like to schedule a call
to discuss.
We are still waiting on the thumb drive documents that Case agreed during our March 2 conferral to
produce. Please provide a timeline for production.
Finally, as suggested by Judge Hegarty, Open intends to move the Court to vacate the Final Pretrial
Conference in light of pending discovery on appropriations and documents for which the Court has held
that privilege does not apply. We’d prefer to file that as a stipulated motion—let us know if the City
Case No. 1:21-cv-02063-CNS-SBP Document 243-4 filed 09/15/23 USDC Colorado pg 2
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agrees.
Anna
Anna van de Stouwe
Associate
HOLLAND & HART LLP
555 17th Street, Suite 3200, Denver, CO 80202
acvandestouwe@hollandhart.com | T: (303) 295-8017 | M: (504) 605-9495
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 243-4 filed 09/15/23 USDC Colorado pg 3
of 4
From:Shoaei, Maral
To:Paul D. Swanson
Cc:Wechter, Andrea; Collard, Case; "Anna C. van de Stouwe"; Alex E. Pierce; "MWeaver@hollandhart.com"; Starr,
Stacy
Subject:CFC/Open
Date:Tuesday, March 28, 2023 2:26:34 PM
Attachments:2023-03-28 C. Collard Ltr to P. Swanson re Thumb Drive.pdf
CFC_221617-619.pdf
image003.png
Hi Paul,
Please see the attached correspondence and supporting documents regarding the thumb drive we
previously disclosed in December. In a few minutes, you will receive a separate email with a copy of
the materials located on the drive via Dorsey’s FTA. You should not need a password to access the
materials, but please let me know if you have any difficulty.
Best,
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.
Case No. 1:21-cv-02063-CNS-SBP Document 243-4 filed 09/15/23 USDC Colorado pg 4
of 4
Exhibit 5
Case No. 1:21-cv-02063-CNS-SBP Document 243-5 filed 09/15/23 USDC Colorado pg 1
of 2
From:Obergfell, Vicki
To:Alex E. Pierce; Paul D. Swanson; Alex D. White; Marcy Weaver
Cc:Shoaei, Maral; Collard, Case; Wechter, Andrea
Subject:CFC v. Open - Translations
Date:Friday, September 8, 2023 11:42:57 AM
Attachments:image001.png
Per Maral Shoaei’s request, I will be sending you certified translations of select documents in this
matter by FTA. If you have never received a FTA from Dorsey, you will receive an e-mail allowing you
to set up an account. If you have received an FTA in the past, you should log in with the user name
and password created previously.
Once you have logged into the FTA and downloaded the zip file, you will need the password below in
order to extract the documents:
N1tt4@gw2ctaC
Where possible, each file contains the English translation, the original Spanish document, and the
translation certificate.
Please contact me with any questions.
Best,
Vicki M. Obergfell
Senior LegalMine Trial Technology Specialist
DORSEY & WHITNEY LLP
50 South Sixth Street, Suite 1500 | Minneapolis, MN 55402-1498
P: 612.492.6650
F: 612.340.2868
C: 612.670.0044
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.
Case No. 1:21-cv-02063-CNS-SBP Document 243-5 filed 09/15/23 USDC Colorado pg 2
of 2
Exhibit
Case No. 1:21-cv-02063-CNS-SBP Document 243-6 filed 09/15/23 USDC Colorado pg 1
of 3
From:Shoaei, Maral
To:"Paul D. Swanson"; Alex E. Pierce; Wechter, Andrea; Collard, Case
Cc:Kevin McAdam; Alex D. White; Marcy Weaver
Subject:RE: CFC v. Open - Trial Logistics
Date:Tuesday, September 5, 2023 12:26:00 PM
Attachments:image007.png
image008.png
image009.png
image010.png
image001.png
Hi Paul,
Thanks for your email. With respect to Mr. Valadez, we appreciate Open’s offer to make him available for
a deposition. However, we do not believe Mr. Valadez’s deposition should be limited on any issues. Also,
consistent with Judge Sweeney’s general trial practices and to avoid unnecessary headaches, we believe
any deposition of Mr. Valadez, should Open continue to list him as a may call witness, should occur before
the start of trial.
As for TMG/Vanir/Milestone, we believe this requires more of a discussion rather than a black or white
answer, especially since some of this may be on a document-by-document (or evidentiary) basis. Please
let us know if you have availability later today for a call.
With respect to rescission damages, we agree that Mr. Seigneur will not testify to the jury about the
measure of rescission damages. However, we do believe that the issue of rescission should be discussed
so that the jury can determine whether rescission is an available remedy. We do agree though that the
City will not discuss the damages that may be associated with rescission to the jury. Also happy to discuss
this later today too if you are available for a call.
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.
Case No. 1:21-cv-02063-CNS-SBP Document 243-6 filed 09/15/23 USDC Colorado pg 2
of 3
From: Paul D. Swanson <PDSwanson@hollandhart.com>
Sent: Friday, September 1, 2023 9:36 AM
To: Shoaei, Maral <Shoaei.Maral@dorsey.com>; Alex E. Pierce <AEPierce@hollandhart.com>; Wechter,
Andrea <wechter.andrea@dorsey.com>; Collard, Case <collard.case@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—
Following up on the MIL conferral call, consistent with Judge Hegarty’s guidance last August, if Open
chooses to call Mr. Valadez as a rebuttal witness and he agrees to appear, Open will ensure he is available
for a deposition about the issues on which he would give rebuttal testimony.
Regarding Vanir, TMG, and Milestone, if the City will agree that statements by Michelle Frey/Andrew
Amato/Codi Newsom of Vanir and Greg Galluzzi/Aaron McClune of TMG are statements in the course of
their work for the City are statements of the City’s “agents or employees” under FRE 801, then Open will
do the same for Edith Mercado/Dwayne Bishop of Milestone for their statements in the course of their
work for Open.
I think we’re also waiting for the City’s position on Open’s contemplated in limine request to preclude
evidence bearing on the measure of rescission damages—i.e., to exclude Mr. Seigneur from testifying to
the jury about that measure or the City otherwise arguing that rescission is available for the jury to award.
If you could let us know about the rescission damages and the Vanir/TMG/Milestone agreement by
Tuesday afternoon, we’d appreciate it.
Happy LDW!
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: Shoaei.Maral@dorsey.com <Shoaei.Maral@dorsey.com>
Sent: Wednesday, August 30, 2023 1:00 PM
To: Alex E. Pierce <AEPierce@hollandhart.com>; wechter.andrea@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
Case No. 1:21-cv-02063-CNS-SBP Document 243-6 filed 09/15/23 USDC Colorado pg 3
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