-Aspen's historic May 5, 2009 IRV election audited as single ballots- 5/5/09 Aspen CO held an instant runoff election (IRV) for mayor and 2 council members. Interpreted contents of each ballot, scanned by True Ballot, were publicly released. Open records requests for a CD of image scans were denied. Aspen has been sued to protect records from destruction and to allow inspection of the scanned ballot files. A Court of Appeals ruling holds that unidentifiable ballots are public records.

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Thursday, January 28, 2010

2nd conference - Jan. 28, 2010 - Marks v. Koch - Election Transparency Litigation - Aspen CO-

Marilyn Marks filed suit against the City of Aspen Municipal Clerk to gain recourse for the City's refusal to provide access to a CD containing recorded images of the ballots which were cast in Aspen Colorado's May 5 municipal election.  That election was the first in Colorado employing IRV voting techniques and one of the first in the country providing individual ballot accessibility for auditing.  Each ballot was individually interpreted and a record of the interpretations was made public.  A corresponding CD of scanned ballot images was created but not made public.  The suit seeks to gain access to the historic CD in order to be able to complete a public verification of the election and to pave the way for future election verifiability by understanding the nature of any opposition to ballot image verification in public.

The original filings in the case including the City's motion to dismiss is contained in the following link:

A first trial management conference took place January 8 in Aspen Colorado. This led to an order to try a conference call with True Ballot Inc. in order to establish stipulated facts in lieu of testimony by True Ballot Inc. (the company which was retained by the City to tabulate the election.) 

A second trial management conference took place in Glenwood Springs on Jan. 28.  During that conference the Judge did not decide on the motion to dismiss. He ruled to allow a deposition of True Ballot Inc.  The City of Aspen advised that it would file a motion for a protective order preventing the deposition.  A further trial management conference was set for Feb. 18 and a tentative trial date was set for March 22 and 23.  A ten page double space limit was set on filings regarding the motion for a protective order.

The transcript from the first case management conference with Judge Boyd in Aspen Colorado on Jan.8 2010 is here: http://aspenelectionreview.blogspot.com/2010/01/marks-v-koch-ballot-imagetransparency.html

Below the break is the transcript of the second conference with Judge Boyd in Glenwood Springs on Jan 28 2010.
[above is opinion based on the understanding of H. Branscomb]

ASPEN, CO 81611
v. _______________________
KATHRYN KOCH, Case No. 09 CV 294
_____________________________ Division No. C

For Plaintiff:
By: Robert A. McGuire, Esquire
Law Office of Robert A.
 McGuire, LLC
1624 Market Street, Suite 202
Denver, Colorado
For Defendant:
John P. Worcester, City Attorney
City of Aspen
City Hall
130 S. Galena Street, Second Floor
Aspen, Colorado

 The matter came on for hearing on Thursday,
January 28, 2010, before the HONORABLE
JAMES B. BOYD, Judge of the District Court,
and the following proceedings were had.
(The parties are present through counsel.)

1 I N D E X
10 E X H I B I T S
16 E X H I B I T S
2 (Whereupon the following proceedings were
3 conducted in open court:)
4 THE COURT: Good morning, everybody. This is
5 Pitkin case 09 CV 294, Marilyn Marks is the plaintiff, City
6 Clerk of Aspen, the defendant. Mr. McGuire is present here in
7 the courtroom in Glenwood Springs. For the City Clerk, Mr.
8 Worcester on the phone?
9 MR. WORCESTER: Yes, sir.
10 THE COURT: And Mr. True?
11 MR. TRUE: Yes, Your Honor.
12 THE COURT: Anybody else on the phone at the
13 moment? All right.
14 We set this over for a case management conference
15 after we continued the originally set hearing so the parties
16 could engage some additional -- in some additional preparation
17 work. There’s also, of course, a pending motion to dismiss.
18 I’m going to have to take another handful of days, at least
19 through the weekend, to get the motion to dismiss completed,
20 or my Order on it. So I’m not prepared to rule on that right
21 now.
22 But it appears to me perhaps we should be talking
23 about resetting the hearing, but Mr. McGuire, where are we
24 from your point of view?
25 MR. McGUIRE: Your Honor, we’re first of all,
1 ready to reset the hearing. On the two things that we had
2 discussed last time, we’ve discussed that we had requested to
3 depose TrueBallot because we thought that TrueBallot had some
4 facts that would be material and relevant to making Ms. Marks’
5 case.
6 As you recall from the last time we talked, the --
7 TrueBallot had been willing to testify but they had then
8 changed their mind. We requested to depose them and the City
9 opposed it at the last conference. We settled on a compromise
10 which was to attempt to stipulate to the facts that we thought
11 we needed from TrueBallot and that would spare all of the
12 parties the expense of a deposition.
13 We attempted to do that since the last conference.
14 The City -- First of all, TrueBallot was not cooperative.
15 And second of all, we proposed 54 facts that we wanted to
16 stipulate which we thought some of them were foundational,
17 some of them were directly relevant to the issues before the
18 Court. The City was only able to stipulate to one of them and
19 so we feel like that was not an adequate solution for us and
20 we would like to be given the opportunity to depose
21 TrueBallot. That’s our first issue.
22 THE COURT: All right. Mr. Worcester, anything
23 you’d like to say about that?
24 MR. WORCESTER: It’s true, Your Honor, that
25 TrueBallot was unable to assist in our -- in the 54 different
1 statements. We were not able to stipulate to more than just
2 one simply because we don’t believe -- some of the facts are
3 true. Others, we don’t now if they’re true or not with
4 TrueBallot’s input.
5 And finally, most of the facts are not relevant to
6 any of the issues before the Court. We feel that they’re just
7 an attempt to seek an admission from the City in matters that
8 are unrelated to the case.
9 THE COURT: All right. Well, I can’t say exactly
10 how that will play out. It is a case where some discovery is
11 appropriate. At least based on -- and I -- I’m not trying to
12 invite further pleading wars or delays, but nevertheless, I
13 think given what I’ve heard right now I’m simply going to
14 authorize the deposition to go forward. If that triggers a
15 motion for some kind of Protective Order, I guess I’ll have to
16 let that motion get plead and I’ll resolve it once it’s fully
17 before the Court.
18 MR. WORCESTER: That’s fine, Your Honor. We think
19 we probably will oppose it and we can do it in our pleadings.
20 THE COURT: All right. Recognizing that issue it
21 out there, Mr. McGuire, from your point of view, how far out
22 do you think we should be looking to set a hearing?
23 MR. McGUIRE: Well, I guess if they’re going to
24 file a Protective -- a Motion for Protective Order and we’re
25 going to oppose that, I guess it really depends on the Court’s
1 sense of how quickly this would be resolved. Because we’re
2 happy -- we can go forward with the deposition any time.
3 We’re prepared to do that.
4 THE COURT: And at least if I recall correctly, I
5 think we first set the hearing for a full day. What’s your
6 view right now of how much time we need?
7 MR. McGUIRE: Well -- I mean we have -- we -- the
8 City has designated four witnesses. We have designated more
9 witnesses because we are responding to the City’s burden of
10 proof and so some of our -- all of our witnesses except for
11 the plaintiff are “may-call” witnesses. You know, I think we
12 would probably want to call our expert, we want to call the
13 defendant. I guess we’re looking at three or four witnesses
14 of our own. So eight witnesses. I think a day, a full day
15 would be the minimum.
16 THE COURT: Mr. Worcester, what’s your view?
17 MR. WORCESTER: Your Honor, I -- as optimistic as
18 Mr. McGuire might seem, I don’t believe that we could do this
19 in one day with eight witnesses. Particularly if we’re going
20 to have two experts testify.
21 THE COURT: All right.
22 MR. WORCESTER: May I make a suggestion, Your
23 Honor?
24 THE COURT: All right. Go ahead.
25 MR. WORCESTER: And that is that we hold in
1 abeyance all of the discovery until the Court has had a chance
2 to rule on our motion. We’ve expended an enormous amount of
3 time, and energy, and expense in this case. We’d like to
4 minimize those and we honestly believe that the case can and
5 should be decided on the pleadings.
6 THE COURT: I can’t remember if we discussed that
7 before, but Mr. McGuire, what would you like to say about that
8 request?
9 MR. McGUIRE: Well, Your Honor, I mean obviously
10 these CORE cases are meant to be expedited proceedings, and
11 because of the Motion to Dismiss and the voluminous briefing
12 that’s gone into it, and because we are now in the situation
13 of wanting some discovery it’s obviously gotten extended a
14 little bit. And that’s unavoidable.
15 But, you know, we would like to proceed as much as
16 possible on a track that would allow us to expedite it to the
17 extent possible. I mean if -- holding the case in abeyance,
18 obviously if the Court winds up ruling to dismiss the motion
19 that’s going to save the parties some costs and expense
20 because it would spare the deposition.
21 If the Court winds up ruling, you know, against
22 the motion then all we will have done is delay ourselves.
23 THE COURT: It’s unfortunate that sometimes things
24 can’t proceed in step-by-step sequence because sometimes it
25 can save funds. But it has the additional effect of slowing
1 everything down, at least until the case ultimately gets
2 resolved. At least if I can live up to my anticipation of
3 having this done within the next week, even if we set a
4 hearing today, it probably won’t require too much activity,
5 other than maybe starting this debate about the deposition.
6 I walked in here without my calendar, so I’m going
7 to step out for just --
8 (Judge Boyd steps out)
9 THE COURT: Logistically as well I guess I have
10 one other question, and perhaps no one’s in a position to
11 answer this. But if the deposition is going to go forward and
12 the City is seeking a Protective Order, I’ll start with you,
13 Mr. Worcester. Do you know if TrueBallot itself, do you think
14 that we should be anticipating some kind of opposition
15 directly from them to any deposition?
16 MR. WORCESTER: I don’t -- I honestly don’t know,
17 Your Honor.
18 THE COURT: All right. Mr. McGuire, do you have
19 any information to shed a little light on that?
20 MR. McGUIRE: Initially they asked us when we --
21 when they were going to testify for us, they said they would
22 be willing to do so, but they asked us to serve them a
23 subpoena, which they would, I guess waive and accept.
24 Things have obviously changed since then. I can’t
25 say. I don’t know whether they would oppose a deposition.
1 MR. WORCESTER: I think what happened, Your Honor,
2 is they saw the 54 statements and they took some -- a little
3 offense at them.
4 THE COURT: Okay.
5 MR. WORCESTER: That’s based upon their written
6 statement back to Mr. McGuire.
7 MR. McGUIRE: Your Honor, and just on -- just --
8 rather than let that characterization stand, I would just note
9 for you on the record that when we sent out our statements to
10 TrueBallot, since this is -- since part of what we wanted to
11 do to test -- to get them to testify and to depose them was to
12 find out some of these facts. We laid out the facts that we
13 had foundation to know and we invited both the defendant and
14 TrueBallot to correct them, or to correct the wording if they
15 thought any of them were inaccurate.
16 So Mr. Worcester’s correct that TrueBallot did
17 decline to participate in that exercise, but I’m not sure that
18 they found anything “offensive.”
19 THE COURT: Well, it’s a lawsuit. People find
20 things offensive from time to time in most of them.
21 Particularly -- we have an issue here where we may have to be
22 looking at a second setting and monitor as we get closer. Let
23 me check one more case before I make a choice here. We could
24 set the matter as a second setting on March 2nd and 3rd.
25 MR. McGUIRE: That works for me.
1 THE COURT: All right.
2 MR. WORCESTER: Your Honor, if I might? If you
3 recall, the last time we discussed setting the hearing I asked
4 if we could do it sometime after the 15th of March. I was
5 planning all along to have this hearing on the 22nd, and I
6 rescheduled my Court of Appeals case --
7 THE COURT: All right. I had forgotten that, so
8 thank you for reminding me.
9 MR. WORCESTER: And family vacation as well.
10 THE COURT: It’s what vacation?
11 MR. WORCESTER: Family vacation.
12 THE COURT: Oh, okay.
13 MR. McGUIRE: Your Honor, if I may. If we’re
14 looking after March 15th, our expert witness is unavailable
15 from the 25th to the 30th of March. And I’m unavailable on the
16 16th.
17 THE COURT: And I’m sorry, the 25th through the
18 what?
19 MR. McGUIRE: Twenty-fifth through the 30th.
20 That’s a Thursday through Tuesday.
21 THE COURT: This isn’t ideal because it’s a second
22 setting behind a criminal case, but those cases do settle
23 sometimes. But I could do it the 22nd and 23rd of March.
24 MR. McGUIRE: That would work for us.
25 MR. WORCESTER: That works for us, Your Honor.
1 THE COURT: All right. Then we’ll set it for a
2 two-day hearing March 22nd and 23rd. We’ll start at 9 o’clock
3 on the first day. Until we can get the deposition issue
4 resolved I -- today I am authorizing the deposition, so Mr.
5 Worcester, if you’re going to file a Motion for a Protective
6 Order, how much time do you need to do that?
7 MR. WORCESTER: A week.
8 THE COURT: All right. And Mr. McGuire, how much
9 time would you like to respond?
10 MR. McGUIRE: We can respond in a week. Your
11 Honor, since both parties have -- are obviously concerned with
12 the expense, would it be possible for the Court to impose a
13 page limit on any briefings associated with the Protective
14 Order?
15 THE COURT: Does anybody need more than 10 pages
16 double-spaced?
17 MR. WORCESTER: I’m sorry. I missed what Mr.
18 McGuire said.
19 THE COURT: I guess he got worn out by the 80 or
20 90 pages of briefs I already have to read. He’s asking for a
21 page limit.
23 THE COURT: And I’m suggesting it might be 10
24 pages, double-spaced.
25 MR. WORCESTER: That’s fine.
1 THE COURT: All right. Then the pleadings on this
2 issue will be page-limited to 10 pages, double-spaced. The
3 motion itself will be due on the 4th; a response will be due a
4 week later, presumably the 11th.
5 Mr. Worcester, if you choose to file a reply,
6 could you do that within -- well, from the 11th, by Tuesday the
7 16th?
9 THE COURT: And can we do then a follow-up case
10 management conference to resolve that motion -- I could do
11 that on the 18th at 1:15 -- of February.
12 MR. McGUIRE: That works for us, Your Honor.
13 MR. WORCESTER: Did you say 1:15?
14 THE COURT: Yes, I did.
16 THE COURT: Mr. McGuire, anything else you think
17 we should talk about today?
18 MR. McGUIRE: Yes. There was one other thing,
19 Your Honor. Obviously disclosures were due on the 8th --
20 witness and exhibit disclosures were due on the 8th and both
21 parties did disclose names, address, and -- names, and
22 addresses, and phone numbers of witnesses. We had just
23 received that before we walked into the conference on the 8th,
24 and so I hadn’t had a chance to review it or confer with my
25 client about the contents of it.
1 We did ask you on the 8th to order the defendant to
2 disclose the expert, the nature of the expert testimony and
3 they have done that. But following the conference I conferred
4 with my client about the witnesses, the other witnesses that
5 the defendant disclosed and we don’t know who they are, we
6 don’t now what they would say.
7 And so, you know, given that we have made a
8 disclosure of the substance of the testimony our witnesses
9 would offer, and given that we don’t have an opportunity to do
10 any Rule 26 disclosures, we would ask the Court to order the
11 defendant to disclose what their -- you know, what the four
12 witnesses that they’ve proposed to have called, will testify
13 to, because they are all will-call witnesses.
14 THE COURT: Mr. Worcester, anything you’d like to
15 say about that request?
16 MR. WORCESTER: Yes, Your Honor. To begin with,
17 this is an expedited hearing. The Rules of Discovery do not
18 apply to expedited hearings. We’ve provided the defendant
19 with a list of our experts and who they are, and what the
20 expert’s going to testify to. Now they want a summary of what
21 our other witnesses might testify to.
22 I would invite the Court to look at the
23 disclosures that we have provided compared to the disclosure
24 that their expert provided. Ours is six pages long; theirs is
25 two pages long. It’s -- this is very quickly turning into a
1 trial as opposed to an expedited hearing, and I think they’ve
2 been provided with all of the information that they need in
3 order to prepare for an expedited hearing.
4 The burden is upon us to show the Court that the
5 Clerk was correct in denying the records. What the plaintiff
6 is trying to do is turn this case into a trial on whether or
7 not the City conducted its elections correctly and we don’t
8 think that’s proper.
9 THE COURT: The -- I don’t think this specific
10 issue was raised in the past. Normally when I require witness
11 and exhibit disclosures, other than experts, I require simply
12 identification information. And the reason for the
13 identification information is not to impose on the disclosing
14 party the obligation to disclose what they think the person
15 will say, but rather to make sure that the other side has
16 contact information so even if there’s not a formal deposition
17 they can, at least if the party is willing to do so, be
18 interviewed. And so I’m not going to order a further expanded
19 disclosure of non-expert witnesses.
20 Anything else, Mr. McGuire?
21 MR. McGUIRE: No, Your Honor.
22 THE COURT: All right.
23 MR. McGUIRE: That’s all.
24 THE COURT: Mr. Worcester, anything else?
25 MR. WORCESTER: No, Your Honor. Thank you.
1 THE COURT: All right.
2 MR. McGUIRE: Excuse me, Your Honor. One other
3 thing. Given that we have disclosed the substance of what our
4 witnesses would testify to, and given that we don’t know what
5 their witnesses are going to testify to, I would ask the Court
6 to not hold us to the substance of what our witnesses have
7 been specified to testify to in case we need to rebut anything
8 that their witnesses bring out at trial.
9 THE COURT: Mr. Worcester, anything you want to
10 say about that request?
11 MR. WORCESTER: No, Your Honor.
12 THE COURT: Similarly, this is not a 16.1 case and
13 therefore, I don’t think the parties are bound or limited by
14 the nature of the disclosure you already made, so that request
15 is granted.
16 Anything else, Mr. McGuire?
17 MR. McGUIRE: No, sir. Thank you.
18 THE COURT: Mr. Worcester, anything else?
19 MR. WORCESTER: No, Your Honor. Thank you.
20 THE COURT: Mr. McGuire, can I just ask you to
21 issue a notice of both the conference and the hearing dates
22 that we just set?
23 MR. McGUIRE: Yes. And if I can just confirm
24 that, Your Honor. So the notice for the hearing is going to
25 be -- the conference is going to be on February 18th at 1:15,
1 and the hearing will be a two-day hearing beginning at 9:00
2 a.m. on the 22nd and the second day will be the 23rd of March.
3 THE COURT: Of March. Yes. All right. Thank you
4 everybody.
5 MR. WORCESTER: Thank you, Your Honor.
6 MR. McGUIRE: I’m sorry, Your Honor.
7 THE COURT: Oh, just a minute, Mr. Worcester.
8 MR. McGUIRE: Do you need us to do a proposed
9 Order on the deposition or --?
10 THE COURT: No. I’ll just do a minute order --
11 MR. McGUIRE: Okay.
12 THE COURT: -- for that.
13 MR. McGUIRE: Thank you, Your Honor.
14 THE COURT: All right. Thank you.
15 (Adjourned)
2 I hereby certify that the above and foregoing is a true
3 and accurate transcription from the electronic sound recording of
4 the proceedings in the above-entitled action.
5 Dated at Benton, Arkansas, Saturday, January 30, 2010.
7 /s/ Brenda S. Matthews______
8 Brenda S. Matthews

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