Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 04-cv-1099-JLK-DLW WOLF CREEK SKI CORP., INC., Plaintiff, v. LEAVELL-McCOMBS JOINT VENTURE, d/b/a THE VILLAGE AT WOLF CREEK, Defendant. DEFENDANT'S AMENDED RESPONSE TO PLAINTIFF'S MOTION TO SEAL EXHIBIT 1 TO WOLF CREEK SKI CORPORATION'S DAUBERT MOTION TO EXCLUDE IN PART THE TESTIMONY AND REPORT OF DEFENDANT'S EXPERT LISA A. MEER Pursuant to this Court's February 28, 2008 Order, Defendant hereby files the foregoing Amended Response to Plaintiff's Motion to Seal Exhibit 1 to Wolf Creek Ski Corporation's Daubert Motion to Exclude in Part the Testimony and Report of Defendant's Expert Lisa A. Meer as follows: The common law right of the public to inspect and copy judicial records is not absolute. United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985). All courts have supervisory powers over their own records and files. Id. (citing Nixon v. Warner

Communications, Inc., 435 U.S. 589, 598, (1978); Crystal Grower's Corporation v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980). Thus a court, in its discretion, may seal documents if the public's right of access is outweighed by competing interests. Hickey, 767 F.2d at 708. Because the analysis of the question of limiting access to court files is fact-based,

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there is no comprehensive formula for deciding when to seal files. Such a decision is left to the sound discretion of the trial court, to be exercised in light of the relevant facts and circumstances of the particular case. The court must consider these facts and

circumstances and weigh the relative interests of the parties. Hickey, 767 F.2d at 708. D.C.Colo.LCivR 7.2 requires the following information in support of a Motion to Seal: (1) the nature of the materials; (2) the legitimate private interests that warrant the relief sought; (3) the clearly defined and serious injury that would result if the relief sought is not granted; (4) why a less restrictive alternative to the relief sought is not available. Here, all factors support sealing Lisa Meer's report. A. The Nature of the Materials This motion seeks to seal only a single document (with attached exhibits): the March 2, 2006 expert report of Lisa A. Meer. Ms. Meer is the Joint Venture's financial expert and has provided expert opinions on the calculation of the Joint Venture's economic damages. Her report is 24 pages long and contains her expert opinions and conclusions. Her report also contains 30 pages of exhibits, which include references to specific documents and financial data reviewed, charts and calculations of costs, expenditures and losses incurred by the Joint Venture. These documents are not publicly available. B. The Private Interests That Warrant Relief One of the traditional exceptions to the general rule of access includes where court files might become a source of business information that might harm a litigant's competitive standing. Nixon, 435 U.S. at 598. Here, Ms. Meer's report contains numerous specific analyses and conclusions

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regarding the financial details of this project. Such information is not public and is not generally available outside of the parties to this development project. Because the

development of ski area projects is a highly competitive area, this is exactly the type of confidential financial information that the Joint Venture's competitors, or alternative purchasers for the project might use to unfairly compete with the Joint Venture. Further, third party litigants have attempted to block the progress of the Village at Wolf Creek however possible. Ms. Meer's report necessarily includes financial data, analyses and conclusions that could be used by these litigants to continue with this interference. Because of its nature, this case has been closely watched by the public and the media for many years. In fact, the last motion filed by the Joint Venture (the Motion for Bifurcation) was directly quoted by the press immediately after it was filed. (See

February 9, 2008 Newspaper Article, Exhibit A). Thus, there is no reason to believe that this scrutiny will cease. C. Injury That Would Result Without Relief Without a sealing of this report, the Joint Venture would make itself vulnerable to competing developers and third parties seeking to interfere with the project. On the other hand, there is no reciprocal harm to the public caused by a sealing of this report. Competing developers and other third parties have access to all public data regarding the project, the environmental studies, the permitting process and the various administrative and governmental rulings surrounding the projects. Thus they have no need for the Joint Venture's inside information and analyses of the project. Such injury was fully contemplated by the parties when they voluntarily entered

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into a Stipulated Protective Order, which was entered by this Court on October 30, 2004. D. A Less Restrictive Alternative is not Available. Given the length of time that this litigation has been pending, and the tens of thousands of pages of related court documents that have been generated, Ms. Meer's report represents a minute fraction of the case. In addition, Ms. Meer has been deposed by the Plaintiff. Therefore, a less restrictive alternative is not available. The planning of this project has been proceeding since 1986, with millions of dollars and years of valuable time invested by the Joint Venture to ensure its success. As a result, the Joint Venture's request to seal this document is reasonable, limited and necessary.

WHEREFORE, the Joint Venture respectfully requests this Court to Seal the expert report of Lisa A. Meer. Respectfully submitted this 3rd day of March 2008.

s/ David W. Krivit David W. Krivit (#25916) MORIARTY LEYENDECKER ERBEN PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 (303) 495-2658 Tel (713) 528-1390 Fax Attorney for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of March 2008, I electronically filed and served the foregoing DEFENDANT'S AMENDED RESPONSE TO PLAINTIFF'S MOTION TO SEAL EXHIBIT 1 WOLF CREEK SKI CORPORATION'S DAUBERT MOTION TO EXCLUDE IN PART THE TESTIMONY AND REPORT OF DEFENDANT'S EXPERT LISA A. MEER via CM/ECF to the following: Andrew Ryan Shoemaker Hogan & Hartson, LLP-Boulder 1470 Walnut Street, #200 Boulder, CO 80302 Email: [email protected] Cynthia A. Mitchell Hogan & Hartson, LLP-Boulder 1470 Walnut Street, #200 Boulder, CO 80302 Email: [email protected] Denise D. Riley Hogan & Hartson, LLP-Denver 1200 Seventeenth Street, #1500 Denver, CO 80202 Email: [email protected] Jacqueline S. Cooper Hogan & Hartson, LLP-Denver 1200 Seventeenth Street, #1500 Denver, CO 80202 Email: [email protected] Kim Arquette Tomey Berg Hill Greenleaf & Ruscitti, LLP 1712 Pearl Street Boulder, CO 80302 Email: [email protected] Melissa M. Heidman Berg Hill Greenleaf & Ruscitti, LLP 1712 Pearl Street Boulder, CO 80302 Email: [email protected] Attorney for Plaintiff

Attorney for Plaintiff

Attorney for Plaintiff

Attorney for Plaintiff

Attorney for Defendant

Attorney for Defendant

s/ Christina J. Kim Christina J. Kim, Paralegal MORIARTY LEYENDECKER ERBEN PC

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Exhibit A

Durango Herald Online

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3/3/08 3:16 PM

Wolf Creek builders to seek new EIS
Process could delay village several years
February 9, 2008

By Joe Hanel | Herald Denver Bureau
DENVER - Developers of the Village at Wolf Creek have agreed to start a new Environmental Impact Statement for their access road, a task that could set them back several years. Lawyers for the developers revealed their plans to seek the new EIS in documents involving a lawsuit with ski area owners. Those documents were filed in late January, but had not been reported or announced by parties involved. A look at the documents Friday by the Herald confirmed developers plan to seek a new EIS, as environmental groups had hoped. "The Joint Venture is withdrawing its application for an access road permit from the Forest Service, and it is starting the entire application process over," the attorneys wrote. Representatives of developers Leavell-McCombs Joint Venture, the U.S. Forest Service and Durango-based environmental group Colorado Wild could not confirm the content of the settlement this week, because negotiations over a lawsuit regarding the first EIS are not complete. A settlement in that lawsuit could come as soon as next week. The first EIS, issued by the U.S. Forest Service in March 2006, spurred a lawsuit by Colorado Wild, which claimed the EIS was flawed and relied on improper influence from the developers, Leavell-McCombs Joint Venture. The Joint Venture, led by Texas developers B.J. "Red" McCombs and Bob Honts, wants to build a resort near the base of Wolf Creek Ski Area that could hold 10,000 people when fully built. In recent court filings, the developers call the Village a $100 million project. Environmental groups have opposed them every step of the way. Honts and McCombs can't build the resort without an access road. They seemed to have won that battle two years ago when the EIS granted them two routes across the national forest to their private land. But, U.S. District Judge John Kane blocked construction of the roads because of Colorado Wild's lawsuit. The developers' business relationship with the Pitcher family, owners of the ski area, went sour early this decade, and the two are now locked in a separate court battle. Kane has scheduled a trial in that case for July 7. However, the two sides' lawyers said in a hearing last month that they are trying to negotiate a settlement. The revelation that developers will restart their EIS came in a pleading in that lawsuit. The developers want Kane to split the lawsuit in two to give them several more years to get their road approval and calculate how much money they have lost. The last EIS took more than two years to produce. When it finally came out, it was an inch-and-a-half thick. A new EIS would start the entire process again and reopen the opportunity for public comment. Click here to send an email to the author
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