HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 275 - Introductory Jury Instructions1
INTRODUCTORY JURY INSTRUCTIONS
Introductory Instructions read to the
jury 10/23/2023
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Opening Instructions
We are about to begin the trial of the case you heard about during the
jury selection. Before the trial begins, I am going to give you instructions
that will help you to understand what will be presented to you and how you
should conduct yourself during the trial.
During the trial you will hear me use a few terms that you may not
have heard before. Let me briefly explain some of the most common to
you. The party who sues is called the plaintiff. In this action, the plaintiff is
the City of Fort Collins. The parties being sued are called the defendants.
In this action, the defendants are Open International, LLC, and Open
Investments, LLC.
The plaintiff, City of Fort Collins, filed a claim in which it seeks to
recover damages from the Defendants Open International, LLC and Open
Investments, LLC, for injuries that the plaintiff claims to have experienced
as a result of the defendant’s conduct.
The defendant, Open International, LLC, has filed what is known as a
counterclaim in which the defendant seeks to recover damages from the
plaintiff, City of Fort Collins, for injuries that the defendant claims to have
experienced as a result of the plaintiff’s conduct.
You will sometimes hear me refer to “counsel.” “Counsel” is another
way of saying “lawyer” or “attorney.” I will sometimes refer to myself as the
“Court.”
When I “sustain” an objection, I am excluding that evidence from this
trial for a good reason. When you hear that I have “overruled” an objection,
I am permitting the evidence to be admitted.
When I say “admitted into evidence” or “received in to evidence,” I
mean that this particularly statement or the particular exhibit may be
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considered by you in making the decisions you must make at the end of the
case.
By your verdict, you will decide disputed issues of fact. I will decide all
questions of law that arise during the trial. Before you begin your
deliberation at the close of the case, I will instruct you in more detail on the
law that you must follow and apply.
Because you will be asked to decide the facts of this case, you
should give careful attention to the testimony and evidence presented.
Keep in mind that I will instruct you at the end of the trial about determining
the credibility or “believability” of the witnesses. During the trial you should
keep an open mind and should not form or express any opinion about the
case until you have heard all of the testimony and evidence, the lawyers'
closing arguments, and my instructions to you on the law. Form your final
opinions only after you have discussed this case as a group in the jury
room at the end of the trial.
While the trial is in progress, you must not discuss the case in any
manner among yourselves or with anyone else. In addition, you should not
permit anyone to discuss the case in your presence. You should avoid
reading any news articles that might be published about the case. You
should also avoid watching or listening to any television or radio comments
or comments on the Internet about the trial.
From time-to-time during the trial, I may make rulings on objections or
motions made by the lawyers. It is a lawyer's duty to object when the other
side offers testimony or other evidence the lawyer believes is not
admissible. You should not be biased or partial against a lawyer or the
lawyer's client because the lawyer has made objections. If I sustain or
uphold an objection to a question that goes unanswered by the witness,
you should not draw any inferences or conclusions from the question. You
should not infer or conclude from any ruling or other comment I may make
that I have any opinions on the merits of the case favoring one side or the
other. I do not favor one side or the other.
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The lawyers are not allowed to speak with you during this case.
When you see the lawyers at a recess or pass them in the halls and they
do not speak to you, they are not being rude or unfriendly; they are simply
following the law.
During the trial, it may be necessary for me to talk with the lawyers
out of your hearing about questions of law or procedure. Sometimes, you
may be excused from the courtroom during these discussions. I will try to
limit these interruptions as much as possible, but you should remember the
importance of the matter you are here to determine and should be patient
even though the case may seem to go slowly.
3 Fed. Jury Prac. & Instr. § 101:01 (6th ed.).
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Order of Trial
The case will proceed as follows:
First, the lawyers for each side may make opening statements. What
is said in the opening statements is not evidence, but is simply an outline or
summary to help you understand what each party expects the evidence to
show. A party is not required to make an opening statement.
After the opening statements, the plaintiff, City of Fort Collins, will
present evidence in support of its claims and defenses, including by
presenting witnesses, and Open’s counsel may examine the witnesses.
At the conclusion of the City’s case, the defendant, Open, may
introduce evidence related to its claims and defenses, including by
presenting witnesses, and the City's counsel may cross-examine the
witnesses.
The City may then present rebuttal evidence related to its claims and
Open’s defenses.
Open may then present rebuttal evidence related to its claims and the
City’s defenses.
After the evidence is presented, the parties’ lawyers make closing
arguments explaining what they believe the evidence has shown. What is
said in the closing arguments is not evidence.
Finally, I will instruct you on the law that you are to apply in reaching
your verdict. You will then decide the case.
3 Fed. Jury Prac. & Instr. § 101:02 (6th ed.).
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Evidence in the Case
The evidence in the case will consist of the following:
1. The sworn testimony of the witnesses, no matter who called a
witness.
2. All exhibits received in evidence, regardless of who may have
produced the exhibits.
3. All facts that may have been judicially noticed and that you must
take as true for purposes of this case.
Depositions may also be received in evidence. Depositions contain
sworn testimony, with the lawyers for each party being entitled to ask
questions. In some cases, a deposition may be played for you on
videotape. Deposition testimony may be accepted by you, subject to the
same instructions that apply to witnesses testifying in open court.
Statements and arguments of the lawyers are not evidence in the
case, unless made as an admission or stipulation of fact. A “stipulation” is
an agreement between both sides that certain facts are true. When the
lawyers on both sides stipulate or agree to the existence of a fact, you
must, unless otherwise instructed, accept the stipulation as evidence, and
regard that fact as proved.
I may take judicial notice of certain facts or events. When I declare
that I will take judicial notice of some fact or event, you must accept that
fact as true.
If I sustain an objection to any evidence or if I order evidence
stricken, that evidence must be entirely ignored.
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Some evidence is admitted for a limited purpose only. When I instruct
you that an item of evidence has been admitted for a limited purpose, you
must consider it only for that limited purpose and for no other purpose.
You are to consider only the evidence in the case. But in your
consideration of the evidence you are not limited to the statements of the
witness. In other words, you are not limited solely to what you see and hear
as the witnesses testified. You may draw from the facts that you find have
been proved, such reasonable inferences or conclusions as you feel are
justified in light of your experience.
At the end of the trial you will have to make your decision based on
what you recall of the evidence. You will not have a written transcript to
consult, and it is difficult and time consuming for the reporter to read back
lengthy testimony. I urge you to pay close attention to the testimony as it is
given.
3 Fed. Jury Prac. & Instr. § 101:40 (6th ed.).
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Claims and Defenses
I will now give you a brief summary of the facts of this case.
The plaintiff in this case is the City of Fort Collins, known as the City.
The defendants are Open International LLC and Open Investments LLC,
known as Open. Open International LLC is also a counterclaimant,
meaning it has asserted claims against the City.
The City is a home-rule municipality organized under Article XX of the
Colorado Constitution. Open is an international software company that has
years of experience implementing its proprietary customer information
system, Open SmartFlex (“OSF”), for utilities and telecommunication
service providers.
In February 2018, the City issued a request for proposal (“RFP”) to
implement a software solution both for its traditional utilities—water,
wastewater, stormwater, and electricity—and for Connexion, the City’s new
municipal broadband service. Open submitted its response to the RFP (the
“Response”) for its product, Open SmartFlex.
The parties entered into a Master Professional Services Agreement
(the “MPSA”) and Software Licensing Agreement, both executed August 9,
2018, and a Scope of Work (“SOW”), which the MPSA incorporated. The
MPSA also incorporated the City’s RFP and Open’s Response. Later, the
parties entered into the First Amendment to the MPSA, dated June 2, 2020,
as well as a series of project change controls—all of which modified the
MPSA. The MPSA as amended governed the parties’ software
implementation project.
The City and Open each contend that the other Party did not perform
its obligations under the MPSA and allege that the other Party breached
the MPSA first.
Further, the City contends that Open negligently or fraudulently
misrepresented the product that it would be delivering and its capabilities in
order to induce the City into choosing Open as its vendor for the project
and executing the contract with Open. Open contends that it did not
misrepresent the product that it would deliver and, in any event, that the
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City proceeded with the project long after receiving and examining Open’s
product. The City does not agree with Open’s position.
These are the issues for you to decide.
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Stipulations
The parties have agreed to certain facts as follows:
1. The City is a home rule municipality organized under Article XX of
the Colorado Constitution.
2. In 2017, the City’s voters approved an amendment to the Fort
Collins Municipal Charter to allow the City to provide telecommunication
facilities and services, including the transmission of voice, data, graphics,
and video using broadband internet facilities, to its residents.
3. On February 10, 2018, the City issued a Request for Proposal
8697 for “Vendor Selection and Implementation of a Comprehensive
Solution for Utilities/Broadband Billing (CIS/OSS)” (the “RFP”) to implement
a comprehensive and integrated solution providing functionality to its utility
Customer Information System (“CIS”), its field services, and to serve a
range of needs both for current City utilities and for Connexion—the City’s
new municipal broadband service.
4. The Parties entered into a Master Professional Services
Agreement (the “MPSA”) and Software License Agreement, both executed
August 9, 2018, as well as a “Scope of Work” (“SOW”) incorporated by the
MPSA.
5. Under the MPSA, the parties agreed that the City’s RFP and
Open’s Response to the RFP were incorporated by reference therein.
6. The MPSA further included a Change Request procedure which
governed changes to the SOW.
7. Additionally, the parties entered into the First Amendment to the
MPSA dated June 2, 2020.
8. On May 19, 2021, Open sent a letter titled “Notice of Default
pursuant to Section 13.2 of the Master Professional Services Agreement.”
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9. On May 28, 2021, the City sent a “Notice of Dispute and Notice of
Termination pursuant to Sections 13 and 17 of the Master Professional
Services Agreement” to Open International.
You will therefore take these facts to be true for the purposes of this
case.
3 Fed. Jury Prac. & Instr. § 101:48 (6th ed.).
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Province of Judge and Jury
After all the evidence has been heard and arguments and instructions
are finished, you will meet to make your decision. You will determine the
facts from all the testimony and other evidence that is presented. You are
the sole and exclusive judge of the facts. I must stress that you must
accept the rules of law that I give you, whether or not you agree with them.
The law permits me to comment on the evidence in the case during
the trial or while instructing the jury. Such comments are only expressions
of my opinion as to the facts. You may disregard these comments entirely,
because you are to determine for yourself the weight of the evidence and
the credibility of each of the witnesses.
3 Fed. Jury Prac. & Instr. § 101:10 (6th ed.).
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Judge’s Questions to Witnesses
During the trial, I may sometimes ask a witness questions. Please do
not think I have any opinion about the subject matter of any questions. I
may ask a question simply to clarify a matter, not to help one side of the
case or harm another side.
Remember at all times that you, as jurors, are the sole judges of the
facts of this case.
3 Fed. Jury Prac. & Instr. § 102:72 (6th ed.).
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Questions by Jurors Permitted
Jurors normally do not ask a witness questions. However, I allow
jurors to ask important questions during the trial under certain conditions.
If you feel the answer to your question would be helpful in
understanding the issues in the case, please raise your hand after the
lawyers have completed their examination but before I have excused the
witness. You will then be given a pen and paper with which to write your
question for the witness.
I will talk privately with the lawyers and decide whether the question
is proper under the law. If the question is proper, I will ask the witness the
question. Some questions may be rewritten or rejected. Do not be
concerned if the question is not asked.
Do not discuss your question with anyone, including the clerk.
Remember, you are not to discuss the case with the other jurors until it is
submitted for your decision.
If you have difficulty hearing a witness or lawyer, please raise your
hand immediately.
3 Fed. Jury Prac. & Instr. § 101:17.
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Notetaking Permitted
During this trial, I will permit you to take notes. You are not required
to take notes. If you do not take notes, you should not be influenced by
another juror's notes, but should rely upon your own recollection of the
evidence.
Because many courts do not permit notetaking by jurors, a word of
caution is in order. You must not allow your notetaking to distract you from
the proceedings.
Frequently, there is a tendency to attach too much importance to
what a person writes down. Some testimony that is considered unimportant
at the time presented and not written down may take on greater importance
later in the trial in light of all the evidence presented, the final arguments,
and my instructions on the law.
Accordingly, you are instructed that your notes are only a tool to aid
your own individual memory and you should not compare your notes with
other jurors in determining the content of any testimony or in evaluating the
importance of any evidence. Your notes are not evidence, and are by no
means a complete outline of the proceedings or a list of the highlights of
the trial. Your memory should be your greatest asset when it comes time to
deciding this case.
3 Fed. Jury Prac. & Instr. § 101:15 (6th ed.).
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Juror Use of Electronic Technology (Before Trial)
You, as jurors, must decide this case based solely on the evidence
presented here within the four walls of this courtroom. This means that
during the trial you must not conduct any independent research about this
case, the matters in the case, and the individuals or corporations involved
in the case. In other words, you should not consult dictionaries or reference
materials, search the Internet, websites, blogs, or use any other electronic
tools to obtain information about this case or to help you decide the case.
Please do not try to find out information from any source outside the
confines of this courtroom.
Until you retire to deliberate, you may not discuss this case with
anyone, even your fellow jurors. After you retire to deliberate, you may
begin discussing the case with your fellow jurors, but you cannot discuss
the case with anyone else until you have returned a verdict and the case is
at an end.
I know that many of you use cell phones, the Internet and other tools
of technology. You also must not talk to anyone at any time about this case
or use these tools to communicate electronically with anyone about the
case. This includes your family and friends. You may not communicate with
anyone about the case on your cell phone, through e-mail, iPhone, text
messaging, or on Twitter, now known as X, or Threads, through any blog or
website, including Facebook, Google+, Instagram, Linkedln, TikTok, or
YouTube. You may not use any similar technology of social media, even if I
have not specifically mentioned it here. I expect you will inform me as soon
as you become aware of another juror's violation of these instructions.
3 Fed. Jury Prac. & Instr. § 101:13 (6th ed.).
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Jury Conduct
To insure fairness, you must obey the following rules:
1. Outside the courtroom, do not let anyone tell you anything about
the case, or about anyone involved with it until the trial has ended. If
someone should try to talk to you about the case during the trial, please
report it to me immediately.
2. During the trial you should not talk with or speak to any of the
parties, lawyers or witnesses involved in this case—you should not even
pass the time of day with any of them. It is important not only that you do
justice in this case, but that you also give the appearance of doing justice.
3. Do not read any news stories or articles about the case, or about
anyone involved with it, or listen to any radio or television reports about the
case or about anyone involved with it.
4. Do not make up your mind during the trial about what the verdict
should be. Keep an open mind until after you have gone to the jury room to
decide the case and you and the other jurors have discussed all the
evidence.
5. If you need to tell me something, simply give a signed note to the
clerk to give to me.
During recesses and adjournments of court, you will be free to
separate, to eat lunch, and to go home at the end of the day. During these
times, you are not to discuss this case with one another or anyone else.
Furthermore, you must not talk with any of the parties to this case, their
attorneys, witnesses, or any representatives of the media until after you
have reached your verdict and have been discharged by the Court as jurors
in this case.
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Our Courtroom Deputy, Julie Dynes, is here to take care of your
needs during the course of this trial. Do not discuss this case with her. If
you have any personal problems or needs, take it up with Ms. Dynes and
she will notify me.
3 Fed. Jury Prac. & Instr. § 101:11 (6th ed.).
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