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050 PSCo's Motion for Protective Order re Attorney Fee Discovery with Exhibits and Proposed Order1 DISTRICT COURT, BOULDER COUNTY, COLORADO Court Address: 1777 6TH Street, Boulder Colorado 80302 303-441-3750 _________________________________________________ Petitioner: THE CITY OF BOULDER, a Colorado Home Rule City, v. Respondent: PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY; MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder County. _________________________________________________ Attorneys for Respondent, Public Service Company of Colorado John R. Sperber, Atty. Reg. No. 22073 Sarah M. Kellner, Atty. Reg. No. 38111 FAEGRE DRINKER BIDDLE & REATH LLP 1144 Fifteenth Street, Suite 3400 Denver, Colorado 80202 Telephone: (303) 607-3500 Fax: (303) 607-3600 jack.sperber@faegredrinker.com sarah.kellner@faegredrinker.com COURT USE ONLY __________________________ Case Number: 19 CV 30637 Division: 5 RESPONDENT’S MOTION FOR PROTECTIVE ORDER RE: ATTORNEY FEE DISCOVERY Respondent, Public Service Company of Colorado (“Respondent” or “PSCo”), through its undersigned counsel, respectfully files this Motion for Protective Order Re: Attorney Fee Discovery. As grounds, Respondent states as follows: 2 CERTIFICATION REGARDING CONFERRAL Pursuant to C.R.C.P. 121, § 1-15, Respondent’s undersigned counsel certifies that he has conferred in good faith with Petitioner’s counsel regarding this Motion. Specifically, following the Court’s March 24 Order referenced below, Jack Sperber spoke with Petitioner’s outside counsel, Don Ostrander, that morning and indicated he did not believe it was necessary to respond to Petitioner’s discovery but asked about Petitioner’s position. On March 25, Boulder Senior Counsel, Kathy Haddock, emailed a response indicating that Petitioner opposed PSCo’s requested “indefinite extension of time.” Mr. Sperber responded by indicating PSCo was not seeking an extension of time; its position was that the discovery was not due on the same grounds explained in this Motion. He further indicated that PSCo would seek a protective order if Petitioner disagreed and asked for a response by the end of the day since the discovery, if proper, would otherwise be due today. As of the time of this filing, Petitioner’s counsel has not responded. BACKGROUND 1. On October 16, 2019, PSCo filed its Motion for Attorney Fees pursuant to C.R.S. § 38-1-122(1). Briefing by the parties was completed on January 10, 2020, and a hearing was set for May 1, 2020. 2. Without conferring with PSCo or seeking leave from the Court to conduct formal written discovery pursuant to C.R.C.P. 121, § 1-22(2)(b), Petitioner served written discovery on PSCo on February 20, 2020. 3. On March 24, 2020, this Court entered an Order vacating the May 1, 2020 hearing, deferring ruling on PSCo’s motion for attorney fees until resolution of the appeal filed by 3 Petitioner, and ordering that either: (1) the hearing could be reset at a future date if the order of dismissal is affirmed on appeal, or (2) the motion for attorney fees would become moot if the order of dismissal is reversed. 4. For the following reasons, PSCo seeks a protective order. GROUNDS FOR MOTION 5. A party seeking formal discovery relating to attorney fee issues is required to seek leave from the court: “The court may permit discovery on the issue of attorney fees only upon good cause shown when requested by any party.” C.R.C.P. 121, § 1-22(2)(b) (emphasis added). 6. Petitioner never sought leave from this Court to conduct discovery pursuant to C.R.C.P. 121. Petitioner also failed to confer with PSCo regarding such discovery. Petitioner’s discovery is therefore unauthorized. 7. Prior to the vacation of the hearing, PSCo was willing to voluntarily produce a subset of the information requested by Petitioner in advance of the hearing. Similarly, Petitioner previously provided limited—albeit incomplete—responses to PSCo’s informal and very limited discovery requests in advance of this same hearing. Since disposition of the motion for attorney fees must now wait for a resolution of the appeal on the order of dismissal, however, PSCo does not want to incur any further expense related to formal or informal discovery that may never be necessary or may change in scope over time given that the appeal will likely not be resolved for many months or longer. While PSCo believes that the discovery is either effectively mooted by the Court’s recent order or is otherwise now no longer necessary, Petitioner insists that PSCo respond. 8. Even assuming that Petitioner had complied with C.R.C.P. 121, § 1-22 and that it 4 was otherwise appropriate to move forward with discovery in light of the Court’s March 24th Order, Petitioner’s discovery demands exceed the permissible scope of discovery under C.R.C.P. 26. This is because the information Petitioner seeks is neither “relevant to the claim or defense of any party,” nor is it “proportional to the needs of case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” C.R.C.P. 26(b)(1). 9. Petitioner’s discovery is not narrowly aimed and tailored at gathering information and documents relevant to its defense on the reimbursement of PSCo’s attorney fees. See Petitioner’s Written Discovery, attached as Exhibit 1. PSCo seeks recovery of attorney fees for only a limited amount of work performed by its outside counsel, Faegre Drinker Biddle & Reath LLP, and has already produced itemized time entries, hourly rate information, background on the attorneys, affidavits, expert opinions, and other documents supporting its request as exhibits to its Motion for Attorney Fees and Reply. Petitioner now seeks additional information irrelevant to those claims for fees such as, for example, discovery regarding work for which PSCo is not presently seeking reimbursement.1 Boulder also seeks confidential and privileged information about PSCo’s outside counsel’s representation of other clients, such as fee agreements, invoices, and total fees incurred in other unrelated cases “[f]or the last three calendar years.”2 This discovery 1 See Exhibit 1, Interrogatory Nos. 1-7, and 10-13; Request for Production of Documents Nos. 1- 4, 7, 9, 10, 13, and 14. 2 See Exhibit 1, Interrogatory Nos. 15 and 16; Request for Production of Documents Nos. 13 and 14. 5 is not narrowly tailored or focused, not proportional to the needs of the case, and not discoverable.3 10. Per C.R.C.P. 26(c), upon motion by the party from whom discovery is sought and for good cause shown, the court may enter an order to protect a party from annoyance, embarrassment, oppression, or undue burden and expense, including an order that the discovery “not be had.” See also Committee Comment to C.R.C.P. 26(d) (“In short, the concept is to allow discovery of what a party/lawyer needs to prove its case, but not what a party/lawyer wants to know about the subject of a case.”). As described above, good cause exists for the entry of a protective order. 11. In sum, Petitioner has failed to seek leave from this Court to conduct and enforce discovery against PSCo on the issue of attorney fees. For this reason alone, discovery should not be had. But Petitioner’s written discovery is also unnecessary, irrelevant, disproportional, and would cause undue burden or expense. WHEREFORE, PSCo requests that the Court enter a protective order holding that PSCo need not respond to Boulder’s written discovery requests. A proposed Order is attached for the Court’s convenience. Respectfully submitted this 26th day of March 2020. FAEGRE DRINKER BIDDLE & REATH LLP /s/ John R. Sperber John R. Sperber, Atty. Reg. No. 22073 Attorneys for Respondent Public Service Company of Colorado 3 To the extent the Court denies this Motion, PSCo reserves the right to specifically object to Petitioner’s Interrogatories and Requests for Production of Documents. 6 CERTIFICATE OF SERVICE The undersigned certifies that on March 26, 2020, a copy of the foregoing RESPONDENT’S MOTION FOR PROTECTIVE ORDER RE: ATTORNEY FEE DISCOVERY was served on the following by the methods listed below: Attorneys for Petitioner, City of Boulder: Office of the Boulder City Attorney Thomas A. Carr Kathleen E. Haddock P.O. Box 791 Boulder, CO 80306 carrt@bouldercolorado.gov haddockk@bouldercolorado.gov ( ) First Class Mail ( ) Hand Delivery ( ) Overnight Delivery (X ) CCES ( ) E-Mail Hamre, Rodriguez, Ostrander & Dingess, PC Donald M. Ostrander Richard F. Rodriguez 3600 S. Yosemite Street, Suite 500 Denver, CO 80237 dostrander@hrodlaw.com rrodriguez@hrodlaw.com ( ) First Class Mail ( ) Hand Delivery ( ) Personal Service ( ) Overnight Delivery (X ) CCES ( ) E-Mail /s/ Lynne McWhirt Legal Administrative Assistant EXHIBIT 1 DISTRICT COURT, BOULDER COUNTY, COLORADO Boulder County Justice Center 1777 6th Street Boulder, Colorado 80302 Petitioner: THE CITY OF BOULDER, a Colorado Home Rule City, v. Respondents: PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY, MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder County. Attorneys for Petitioner, City of Boulder: Attorney Name: Donald M. Ostrander, No. 12458 Richard F. Rodriguez, No. 25105 Hamre, Rodriguez, Ostrander & Dingess, PC Address: 3600 S. Yosemite Street, Suite 500 Denver, Colorado 80237 Phone Number: 303.779.0200 Email: dostrander@hrodlaw.com rrodriguez@hrodlaw.com Attorney Name: Office of the Boulder City Attorney Thomas A. Carr, No. 42170, City Attorney Kathleen E. Haddock, No 16011, Senior Counsel Address: P.O. Box 791 Boulder, CO 80306 Phone Number: 303.441.3020 Email: carrt@bouldercolorado.gov haddockk@bouldercolorado.gov COURT USE ONLY ___________________ Case No: 2019CV30637 Division: 5 PETITIONER CITY OF BOULDER INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS TO RESPONDENT XCEL REGARDING ATTORNEYS FEES SERVED ONLY: February 20, 2020 3:03 PM FILING ID: E2D134195D14E CASE NUMBER: 2019CV30637 2 Petitioner City of Boulder requests that Respondent, Public Service Company of Colorado d/b/a Xcel Energy (“Xcel”), answer, under oath, the following In terrogatories and produce the documents described below for inspection at the offices of the Boulder City Attorney, 1777 Broadway, Boulder, Colorado 80302 within 35 days. DEFINITION AND INSTRUCTIONS 1. Identify, when used in reference to a natural person, requires the following information: (a) his or her full name and present or last known address and telephone number; (b) the person’s present title and employer or other business affiliation and the address and telephone number thereof; (c) the person’s title and employer or other business affiliation at the time the action at which each Interrogatory is directed, and address and telephone number thereof; and (d) whether or not the person presently is living. 2. Identify, when used in reference to a document, requires the following information: (a) subject of the document, (b) the title of the document, (c) the type of the document (letter, e-mail, memorandum, telegram, tape), (d) the date of the document, or, if the specific date thereof is unknown, the month and year, or best approximation of such date, (e) the number of pages of such document, (f) the identity of the person or persons to whom the document is directed or who received or reviewed the document or copies of the document or any portion thereof, and (g) the present or last known location and custodian of the document and the address and telephone number of such custodian. 3. Document, means any item or tangible thing within the scope of C.R.C.P. 34, including, but not limited to, any medium on which intelligence or information can be recorded or retrieved, book, pamphlet, letter, memorandum, (including memorandum or report of a meeting or conversation), e-mail, text message, tweet, facsimile, invoice, bill, order form, receipt, financial statement, statement, accounting entry, diary, calendar, telex, telegram, cable, report, record, contract, agreement, study, blueprint, map, plan, handwritten note, draft, working paper, chart, paper, rent, laboratory record, drawing, sketch, grant, index, list, tape, photograph, microfilm, data sheet, data processing card, or any other written, recorded, transcribed, punched, taped, filmed, or graphic matter, however produced or reproduced. Additionally, the terms Document or Documents include, without limitation, all enclosures, attachments, and related materials attached to or referenced in any document defined above. 4. Describe means (1) to describe all facts, analysis, opinions, conclusions, inferences, arguments or conjectures supporting the matter, statements or contentions in question; and (2) to identify each person who is knowledgeable about the matter, statement or contention in question. 5. Project means the acquisition of property from Xcel for the City of Boulder’s municipalization, as more particularly described in the Amended Petition in Condemnation filed by the City in the Matter defined below. 3 6. You, Your, or Yourself refers to Respondent Xcel, along with its managers, officers, elected officials, staff, employees, agents, attorneys, accountants, consultants, brokers, representatives, partners, appraisers, surveyors, engineers, and all other persons or entities purporting to, or authorized to act on behalf of Xcel. 7. Condemnation Dismissal Matter means any and all activity related to Xcel’s Motion to Dismiss the City’s First Amended Petition in Condemnation in Boulder County District Court Case Number 2019-CV-030637 (the “Case”). The Matter includes all activity leading up to the filing of the Motion to Dismiss, including any briefing on the Motion to Dismiss and any activity related to Xcel’s Motion for an Award of Attorney Fees, including any briefing on the Motion for Award of Attorney Fees. 8. Condemnation Matter means any and all activity performed on behalf of Xcel directly related to the Case. 9. Other Matters means any and all activity related to Boulder’s municipalization project for which You seek reimbursement of your attorney fees and costs in the Case but which does not qualify as Condemnation Dismissal Matter or Condemnation Matter. 10. Matters means, collectively, the Condemnation Dismissal Matter, Condemnation Matter, and Other Matters and, singularly, any one of these three defined matters. 11. Xcel Attorney’s Office means any and all attorneys, paralegals, and other legal staff employed by Xcel the City who performed any work on the Matter, including, but not limited to, Christopher Irby and Lance Reams. 12. Faegre Professionals means any and all Faegre & Benson, Faegre Baker Daniels and Faegre Drinker Biddle & Reath, LLP attorneys, paralegals, and other legal staff who performed any work on behalf of Xcel on the Matters. 13. DGS Professionals means any and all Davis, Graham and Stubbs, LLP attorneys, paralegals, and other legal staff who performed any work on behalf of Xcel on the Matters. 14. Other Legal Professionals means any and all attorneys, paralegals, or other legal staff—other than the Xcel Attorney’s Office, Faegre Professionals, and DGS Professionals— who performed any work on behalf of Xcel on the Matters. 15. Communication means any and all communications, including, but not limited to, letters, facsimiles, e-mails, telephone logs, meeting transcripts, and voice mails. 16. Considered means viewed by the eyes, whether the document was simply reviewed and used, in whole or in part, or reviewed and rejected, in whole or in part, and regardless of how much time was spent reviewing the document. 4 17. Relate to, related to, or relating to means to consist of, refer to, reflect on, arise out of, or be in any way or manner legally, factually or logically connected with the matter discussed. 18. In answering any Interrogatory that calls for identification of persons or documents, if you do not know or cannot obtain information sufficient to provide a full identification of a particular person or document, but you are able to provide a partial identification, then you should provide such partial identification and state that the identification is in fact partial. SUPPLEMENTATION OF RESPONSE These Interrogatories and Requests for Production of Documents are deemed to be continuing to the fullest extent permitted by C.R.C.P. 26(e). OBJECTIONS If you object to any portion of these Interrogatories or Requests for Production of Documents on the ground that they request information that is privileged, set forth the privilege claimed, the facts upon which you relied to support the claim of privilege, and identify each communication or document that is claimed to be privileged by way of an attorney-client privilege log or inventory. INTERROGATORIES 1. For each specific Matter, identify all Faegre Professionals that worked on the Condemnation Dismissal Matter, Condemnation Matter, and Other Matters. 2. For each specific Matter, identify all DGS Professionals, if any, that worked on the Condemnation Dismissal Matter, the Condemnation Matter, and Other Matters. 3. For each specific Matter, identify all Other Legal Professionals, if any, that worked on the Condemnation Dismissal Matter, the Condemnation Matter, and Other Matters. 4. For each specific Matter, identify anyone from the Xcel Attorney’s Office that worked on the Condemnation Dismissal Matter, the Condemnation Matter, and Other Matters. 5. Describe the role the Xcel Attorney’s office played in each Matter, including but not limited to its work relating to drafting, reviewing, revising and filing pleadings, work with appraisers or other consultants and review of expert reports, review of City ordinances and memoranda and supporting documents relating thereto, drafting of or other work related to negotiation letters and other communications, or any other activity related to each specific Matter. 5 6. Describe by separate Matter the total hours spent by the Xcel Attorney’s Office relating to each separate Matter, from September 1, 2018 to present. 7. Describe by separate Matter the total hours worked by Faegre Professionals on each separate Matter, from September 1, 2018 to present. 8. Describe by separate Matter the standard hourly rates for all Faegre Professionals working on each separate Matter. 9. Describe by separate Matter any discount to standard hourly rates charged by Faegre Professionals to Xcel. 10. Describe by separate Matter the total hours worked by DGS Professionals on each separate Matter, from September 1, 2018 to present. 11. Describe by separate Matter the standard hourly rates for all DGS Professionals working on each separate Matter. 12. Describe by separate Matter the total hours worked by DGS Professionals on each separate Matter, from September 1, 2018 to present. 13. Describe by separate Matter the standard hourly rates for all Other Legal Professionals working on each separate Matter. 14. In your brief, you claim the Condemnation Matter is and was complex because of, among other things, the “involvement of third-parties." Please identify each specific third-party involved and describe with particularity the individual’s precise involvement in the Condemnation Matter. 15. In your brief, you claim “Faegre BD’s standard hourly rates are routinely paid by clients for eminent domain work...” For the last three calendar years, identify the following: a. Each specific eminent domain matter where clients paid FB its standard hourly rates. b. Each specific timekeeper who billed time on each specific eminent domain matter. c. For each specific timekeeper who billed time on a specific eminent domain matter, the percentage of time spent by that timekeeper on each particular matter (either by percentage of total hours or by dollar figures). d. For each specific eminent domain matter, identify the total hours and total amount of fees billed to the client. e. The complete fee or engagement agreement related to your services. 16. To the extent any of the eminent domain matters You identified in above interrogatory number 16 involved or resulted in litigation, identify the following: 6 a. Each specific case by name of the parties, court, and case number. b. Each specific timekeeper who billed time on each specific eminent domain matter. c. Each specific timekeeper’s percentage of time spent on each specific eminent domain matter (either by percentage of total hours or dollar figures). d. For each specific eminent domain matter, identify the total amount of fees billed to the client. e. The complete fee or engagement agreement related to your services. REQUESTS FOR PRODUCTION OF DOCUMENTS 1. Produce by separate Matter all time records for the Xcel Attorney’s Office relating to each separate Matter. 2. Produce all invoices received by You from any Faegre Professionals relating to work performed on the Matters, from September 1, 2018 to present. 3. Produce all invoices received by You from any DGS Professionals relating to work performed on the Matters from September 1, 2018 to present. 4. Produce all invoices received by You from any Other Legal Professionals relating to work performed on the Matters from September 1, 2018 to present. 5. Produce a complete signed copy of the fee or engagement agreement(s) between You and Faegre Professionals related to each the Condemnation Matter, including without limitation, evidence of 15% rate reduction for You. 6. Produce a complete signed copy of the fee or engagement agreement(s) with You for any Matters, including, without limitation, the attachment referenced in the April 18, 2011 Xcel retention letter and the Outside Counsel Guidelines referenced as part of the retention letter. 7. Produce a complete copy of the actual invoices sent by Faegre Professionals to You regarding any of the Matters. 8. Produce a copy of any other documents that support the fees and costs claimed in the spreadsheet attached to Your Motion for Attorney Fees and the additional $33,938.80 in fees and $5,965.40 in costs to prepare Your Reply in Support of Motion for Attorney Fees and the $676,689.61 that You claim as “fees incurred from January through September, 2019.” 9. Produce a copy of pre-bills of Faegre Professionals that show any billing judgment exercised to write-off all or portions of time entries including, without limitation, any documentation to support Your claim for Attorney Fees to be “a small fraction of its total 7 attorney’s fees and costs incurred as a result of the City’s” Petition and the “billing judgement, which resulted in roughly 10 percent of [Faegre Professionals’] work not being charged” to You. 10. Produce all documents that evidence proof of payment by You of any invoices from Faegre Professionals related to any of the Matters. 11. Produce any document Considered by Jack Sperber in preparation of his affidavit in support of Xcel’s Motion for Award of Attorney Fees in the Condemnation Matter. 12. Produce any document Considered by Jack Sperber in preparation of his supplemental affidavit in support of Xcel’s Motion for Award of Attorney Fees in the Condemnation Matter. 13. Produce any document that supports or is otherwise related to your answer to Interrogatory Number 15. 14. Produce any document that supports or is otherwise related to your answer to Interrogatory Number 16. Respectfully submitted this 20th day of February, 2020. BOULDER CITY ATTORNEY’S OFFICE Thomas A. Carr, No. 42170, City Attorney Kathleen E. Haddock, No.16011, Senior Counsel HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. /S/ RICHARD F. RODRIGUEZ’S DULY SIGNED PHYSICAL COPY OF THIS DOCUMENT IS ON FILE AT THE OFFICE OF HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. PURSUANT TO CRCP RULE 121, SECTION 1-26(9) By: Donald M. Ostrander, No. 12458 Richard F. Rodriguez, No. 25105 ATTORNEYS FOR PETITIONER 8 CERTIFICATE OF DELIVERY I hereby certify that on the 20th day of February, 2020, a true and correct copy of the foregoing PETITIONER CITY OF BOULDER INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS TO RESPONDENT XCEL REGARDING ATTORNEYS FEES was sent via Colorado Courts E-Filing or sent via e-mail or placed in the United States mail, first class, postage prepaid, and properly addressed to the following: John R. Sperber Sarah M. Kellner Brandee L. Caswell Matthew D. Clark Katharine M. Gray Sean J. Metherell Faegre Drinker Biddle & Reath, LLP 1144 Fifteenth Street, Suite 3400 Denver, Colorado 80202 jack.sperber@faegredrinker.com sarah.kellner@faegredrinker.com brandee.caswell@faegredrinker.com matthew.clark@faegredrinker.com katie.gray@faegredrinker.com sean.metherell@faegredrinker.com Attorneys for Public Service Company of Colorado Olivia D. Lucas Boulder County Attorney’s Office P.O. Box 471 Boulder, CO 80306 olucas@bouldercounty.org Respondent Paul Weissmann, in His Official Capacity As Treasurer Of Boulder County HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. /s/ Lori A. Argo By: 1 DISTRICT COURT, BOULDER COUNTY, COLORADO Court Address: 1777 6TH Street, Boulder Colorado 80302 303-441-3750 _________________________________________________ Petitioner: THE CITY OF BOULDER, a Colorado Home Rule City, v. Respondent: PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY; MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder County. COURT USE ONLY __________________________ Case Number: 19 CV 30637 Division: 5 [PROPOSED] ORDER GRANTING RESPONDENT’S MOTION FOR PROTECTIVE ORDER RE: ATTORNEY FEE DISCOVERY This Court, upon Respondent’s Motion for Protective Order Re: Attorney Fee Discovery, having reviewed any response and reply, and being fully advised in the premises, hereby GRANTS the Motion. The Court ORDERS that Petitioner’s written discovery, served on February 20, 2020, shall not be allowed. Dated this _____ day of _____________ 2020 BY THE COURT: DISTRICT COURT JUDGE