The original filings in the case including the City's motion to dismiss is contained in the following link:
http://aspenelectionreview.blogspot.com/2009/12/election-transparency-litigation-marks.html
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. Below the break is the transcript from a case management conference with Judge Boyd in Aspen Colorado on Jan.8 2010:
[above is opinion based on the understanding of H. Branscomb]
DISTRICT COURT
PITKIN COUNTY
STATE OF COLORADO
506 EAST MAIN STREET, SUITE 300
ASPEN, CO 81611
_____________________________
MARILYN MARKS,
Plaintiff, ^FOR COURT USE
ONLY^
v. _______________________
KATHRYN KOCH, Case No. 09 CV 294
Defendant.
_____________________________ Division No. C
For Plaintiff:
By: Robert A. McGuire, Esquire
Law Office of Robert A.
McGuire, LLC
1624 Market Street, Suite 202
Denver, Colorado
80202
For Defendant:
John P. Worcester, City Attorney
City of Aspen
City Hall
130 S. Galena Street, Second Floor
Aspen, Colorado
81611
The matter came on for hearing on Friday,
January 8, 2010, before the HONORABLE
JAMES B. BOYD, Judge of the District Court,
and the following proceedings were had.
(The parties are present through counsel.)
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12 NUMBER DESCRIPTION PAGE
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16 E X H I B I T S
17 MARKED FOR IDENTIFICATION
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25 TRANSCRIBER’S CERTIFICATE
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1 AFTERNOON SESSION, FRIDAY, JANUARY 8, 2010
2 (Whereupon the following proceedings were
3 conducted in open court:)
4 THE COURT: This is 09 CV 294. Plaintiff, Marilyn
5 Marks, is present with counsel, Mr. McGuire. The defendant,
6 Kathryn Koch, the Clerk of Aspen, who’s not present, but her
7 counsel, Mr. Worcester and Mr. True are both present.
8 We’re set today for a -- essentially the pretrial
9 conference for the hearing we have set for two weeks from
10 today. And then there’s a pending motion that’s got pretty
11 substantial briefing that needs to be resolved, but I’m not
12 going to resolve it at this moment.
13 I have reviewed the proposed Joint Trial
14 Management Order. So Mr. McGuire, let me start with you. Can
15 you tell me your sense of where we are in the case, your
16 readiness for the hearing when it’s set, and the
17 appropriateness of the length of the setting.
18 MR. McGUIRE: Well, Your Honor, obviously we’ve
19 disclosed a good number of witnesses and I’ve just had a
20 chance to take a look at the Clerk’s witness list as well, and
21 she’s disclosed four witnesses, one of whom I’m guessing is
22 intended to be qualified as an expert. Is that right?
23 MR. WORCESTER: That’s correct.
24 MR. McGUIRE: Okay. As far as sort of the claims,
25 I think that the briefing is -- for the motion to dismiss has
--
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1 done a pretty good job of setting out the issues in the case.
2 Having said that, we think that there’s going to be some
3 factual issues around both of the basic issues that are, you
4 know, in play here. The first issue is whether or not these
5 TIFF files should be treated as ballots. And the second is
6 the substantial injury to the public interest.
7 The second is certainly a factual question and I
8 think that that’s covered in the briefings. The first is a
9 legal question but it’s -- it’s a question that can be
10 informed by evidence on the nature of the TIFF files. And the
11 reason I bring this up is because we -- when we submitted the
12 proposed Joint Trial Management Order we had planned to
13 introduce testimony from TrueBallot, which is the company that
14 conducted the election and created the TIFF files.
15 And after submitting the order, TrueBallot had
16 been -- we had been given the understanding that TrueBallot
17 was going to come and testify for us willingly; they’re based
18 out of state and we can’t subpoena them. After we submitted
19 the proposed Trial Management Order we learned that they don’t
20 in fact want to come and testify. And so we’re in a bit of a
21 position here where we think we may need to take a deposition
22 that we hadn’t expected to need to take, to introduce that
23 kind of testimony. So we think that we may need a delay for
24 that purpose.
25 Second, given that the defendant that we now see
--
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1 is going to introduce an expert, we hadn’t had any disclosure,
2 and there’s no expert report. We don’t know what the expert’s
3 going to testify to. We think that that warrants a little bit
4 of delay as well. So we would ask that rather than have the
5 hearing in two weeks, we reset it. And further that the case
6 be deemed to be at issue, so that we can get back some
7 discovery in terms of depositions and understanding sort of
8 what the other side is planning to introduce through their
9 witnesses.
10 THE COURT: All right. Mr. Worcester or Mr. True,
11 whosever going to speak, what would you like to say about
12 plaintiff’s request?
13 MR. WORCESTER: Well, it’s a little surprising. I
14 mean we’re prepared to --
15 THE COURT: In connection -- I’m sorry. Before I
16 let you go, let me ask one more question.
17 Mr. McGuire, if the Court were to grant your
18 request, what kind of delay are you asking for?
19 MR. McGUIRE: We don’t think that it would take
20 very long. I think -- we basically just want to have a chance
21 to depose TrueBallot so that we can get their testimony on
22 record, so we can introduce it because we think it’s important
23 to the first factual -- the first issue before the Court.
24 You know, I think two weeks is a tight timeframe,
25 but I think we wouldn’t need a very long extension. Maybe
--
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1 another couple of weeks or whatever fits the Court’s schedule.
2 THE COURT: All right. I’m sorry, Mr. Worcester.
3 Go ahead.
4 MR. WORCESTER: Well, again, it’s a little
5 surprising because we are ready to go in two weeks. This is
6 not a trial; it’s an expedited hearing. I don’t know what
7 facts TrueBallot or any of their principles would have that
8 are necessary to address the issues before the Court. We see
9 this as a single issue. Should you not, sir -- should the
10 motion to dismiss not be granted, the only issue that would be
11 before the Court at that point was whether or not there is
12 substantial injury to the public interest in releasing the
13 ballots.
14 I don’t honestly know what facts anybody at
15 TrueBallot would have that requires them to be deposed. Our
16 expert’s going to testify, obviously, that it’s his belief
17 that there would be substantial injury to the public interest
18 if the ballots were released. That shouldn’t come as any
19 surprise to anybody.
20 So we would oppose any delay. Not only that, but
21 the -- not only the delay, but the expense involved. The City
22 Clerk is in a position of having to defend a State Statute
23 which we believe requires her to deny the CORA request
24 request. And yet she’s also subject, perhaps, to attorney’s
25 fees if she’s wrong. The State Legislature places a huge
--
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1 burden on the City Clerk. As the custodian of those records
2 she has to decide whether it’s going to be in the interest of
3 the public to release them or not. And if she’s wrong, she
4 gets socked with attorney’s fees on top of that, and all of
5 the costs. I imagine you want to fly out to -- where are they
6 from?
7 MR. McGUIRE: They’re in Bethesda, I think, now.
8 MR. WORCESTER: Bethesda, Maryland? That’s a huge
9 expense, and I just don’t know what facts they have that would
10 help resolve the issues before the Court.
11 THE COURT: Mr. McGuire, do you think you could
12 give a little more detail in terms of offer of proof --
13 MR. McGUIRE: Sure.
14 THE COURT: -- or something why you believe that
15 testimony would be relevant?
16 MR. McGUIRE: Yes, Your Honor. The defendants
17 claim that the TIFF files are essentially for all intents and
18 purposes, ballots, and need to be treated as ballots. These
19 are electronic documents that are stored on a disk. And the
20 nature of how those documents were created bears directly on
21 whether that’s a legitimate way to view the TIFF files.
22 Because, for example, you know obviously we don’t
23 have testimony unless we have discussions with people that
24 have given us to understand how this is -- how this happened.
25 But the TIFF files existed in a couple of different iterations
--
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1 and a couple of different locations in the course of their
2 creation, and production, and transition to being put on a
3 disk.
4 The files we’re seeking are the ones on disk, but
5 the defendant’s position that those files can’t be released
6 until they’re ballots, if it’s applied as a general rule, is
7 going to apply to all of the other copies of the TIFF files
8 that were created, including the ones that may be in the
9 possession of TrueBallot. Those aren’t being stored according
10 to the law. According to the defendant, they may have been
11 deleted in violation of the law that the defendant believes
12 applies to the TIFF files we are seeking.
13 So we think that it would inform the Court’s
14 decision as to whether or not it’s a sound determination that
15 the TIFF files and the ballots should be treated the same,
16 given that there may be TIFF files that have not been treated
17 the same and yet, you know, the defendant has not had -- has
18 not expressed any concerns about that. And we think it’s
19 relevant to the determination of that first issue.
20 And TrueBallot is the only source of that
21 information. We, you know, could put on testimony of people
22 who understand how the process works. Those people are
23 available. But obviously, TrueBallot would be the best source
24 of that information because it’s their software, they’re the
25 ones who conducted the election and created these documents.
--
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1 THE COURT: And if you can tell me, is their
2 refusal to appear, to appear physically or testify at all?
3 For example, could there be consideration of having them
4 appear in two weeks, but to testify by telephone?
5 MR. McGUIRE: They -- that would certainly be fine
6 with us. And in fact in the last phone conversation I had
7 with the President of TrueBallot, he told me that they don’t
8 want to be involved. So my sense was that they -- which was a
9 bit of a surprise because the conversation before that they
10 were willing to fly somebody out, and then they changed their
11 mind. And so my sense now is that they would not willingly
12 testify unless they’re subject to a subpoena, which we can’t
13 serve out of state, to compel their attendance. So that’s why
14 we wanted to do deposition testimony.
15 THE COURT: And what can you tell me about how
16 long you’ve known that they’re not going to cooperate?
17 MR. McGUIRE: I learned about it on a phone call
18 actually a half an hour after I filed with the Court, the
19 proposed Trial Management Order. Before that, I was under the
20 impression that they were going to testify, because I’ve had
21 conversations with John Seibel, who’s the President of
22 TrueBallot previously at the beginning of the year, and he had
23 told me that they were just trying to identify who the right
24 person at TrueBallot would be to give this information.
25 THE COURT: All right. Mr. Worcester?
--
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1 MR. WORCESTER: A couple of matters, Your Honor.
2 How these TIFF files are created I don’t think is important.
3 They are what they are. And what they are is copies of the
4 ballots. How exactly they were created, what process somebody
5 went through to make copies of them I don’t think is relevant
6 to any of the issues. I would suggest perhaps we could serve
7 some interrogatories to them and see if that responds to their
8 needs for these facts.
9 And lastly, I would ask that you not delay this or
10 that -- we ask the Court to rule on our motion before we spend
11 any more time and energy deciding whether these relative
12 ballot issues of -- or how they were created is relevant to
13 the issues before us.
14 THE COURT: And I’m sorry, serve interrogatories
15 on who?
16 MR. WORCESTER: On them [inaudible] provide the
17 answers that --
18 MR. McGUIRE: And on that point let me just add
19 something from my conversation with Mr. Seibel. He told me
20 that if the defendant was willing to do it that they would --
21 TrueBallot would be willing to get on a phone call with us and
22 basically work with the parties to come up with a set of facts
23 that they could stipulate that would obviate the need for us
24 to actually call them.
25 If we could, with their input and the defendant’s
--
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1 cooperation come up with a set of stipulated facts that deals
2 with what we’re trying to introduce, we’d be happy to take
3 that route. And that would be a much less expensive, and it
4 wouldn’t -- assuming that we could do it quickly, it wouldn’t
5 require any delay. That wouldn’t require any delay. I still
6 have another point I want to talk about on the expert witness
7 issue.
8 THE COURT: All right. Mr. Worcester, what do you
9 want to say about at least that as a potential approach?
10 MR. WORCESTER: I think perhaps a short delay, if
11 that’s what we’re going to do. I’d hate to have to prepare
12 for a hearing with these new facts, presented to me a week or
13 so before the hearing. So if we’re going to go that route,
14 stipulated facts, I guess I would join in the short delay.
15 THE COURT: And what was the other thing you
16 wanted to say about the expert witness.
17 MR. McGUIRE: The other thing was just given that
18 they’re intending to call a -- an expert, you know, we haven’t
19 -- we’ve just gotten the resume and I haven’t had a chance to
20 review it. But, you know, ordinarily -- I realize this is an
21 expedited proceeding and we’re not operating under Rule 16 or
22 16.1, but the Rules of Civil Procedure generally do provide
23 for a certain amount of advance notice and disclosure of the
24 content of what an expert is going to say, as opposed to --
25 I mean if it’s as high level as the expert
--
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1 testifying that the ballots can’t be released without harming
2 the public interest, then that seems like a testimony to the
3 ultimate issue on the second point. And I think, you know,
4 we’d have to just sort of know how the expert intends to
5 testify to know whether we can -- whether that’s something
6 that we’re going to want to oppose. But obviously we can’t
7 make any of these decisions ahead of time without having some
8 disclosure of the nature of what the expert’s going to say.
9 THE COURT: And what is the nature of the
10 disclosure that you’re proposing?
11 MR. McGUIRE: Well, I mean I guess we wouldn’t
12 necessarily need a full-on expert report. I mean it’s not
13 like there’s a -- any studies he’s going to need to do, but I
14 do think that we would need -- I mean we’ve provided what we
15 think is consistent with Rule 16.1, a detailed disclosure of
16 what each of our witnesses is going to say. I think that, you
17 know, we would at least want something like that that would
18 allow us to anticipate what the expert’s going to say and, you
19 know, restrict the scope to what we’re able to actually
20 prepare for.
21 THE COURT: Mr. Worcester, what do you want to say
22 about that request?
23 MR. WORCESTER: Well, I can tell you right now
24 what the -- I didn’t completely discuss what his testimony
25 would be, but I can tell you we will hopefully obtain from him
--
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1 testimony that supports our brief. What we consider -- what
2 we called “legislative facts” in our brief, I don’t know if
3 the Court has had an opportunity to read our brief, but --
4 THE COURT: I started and then I saw --
5 MR. WORCESTER: Well --
6 THE COURT: -- [inaudible].
7 MR. WORCESTER: -- those are the legislative facts
8 that we would hope that he would be able to testify to as his
9 opinion. That’s a full disclosure of what he’s going to
10 testify to. It’s the one evidence, testimonial evidence that
11 we have that would support our contention that it would cause
12 substantial harm to the public interest to release the
13 ballots, or the ballot images, and copies of the ballots, or
14 whatever they are. That’s what I anticipate, Judge.
15 THE COURT: Okay. Well, in terms of the expert
16 disclosure, I will find that there does need to be -- I do
17 find there needs to be a disclosure consistent with Rule 26.
18 Which doesn’t necessarily require that the expert prepare a
19 report, but it does require a written report -- a written
20 report or summary that contains a statement of all of the
21 opinions to be expressed, his bases of those opinions. So I
22 will require that disclosure, so Ms. Marks does know the
23 particular opinions she has to face and respond to.
24 MR. McGUIRE: Excuse me, Your Honor. Given that
25 they are again, introducing an expert, you know, ordinarily we
--
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1 would want to counter with an expert of our own. If they’re
2 going to introduce a disclosure that their expert is going to
3 testify to, we would appreciate the opportunity to present our
4 own expert and obviously we would do the same kind of
5 disclosure. But we haven’t anticipated that there would be
6 room for getting an expert and so therefore we haven’t
7 advanced one. But obviously if the other side is going to
8 bring one, then we think that we should be entitled to do the
9 same.
10 THE COURT: Well, I’m starting to create the
11 question as to whether the parties really want an expedited
12 proceeding or not. Given the nature of the motions to dismiss
13 and how that might affect the need for a hearing [inaudible],
14 here’s what I’m going to propose we do. Before I actually
15 order it, I’ll let you comment.
16 And that is that we -- that I order you to do the
17 conferring to see if you can get the stipulated facts out of
18 the company, and that a expert disclosure of the kind I just
19 mentioned be done by the 15th. That we vacate the hearing on
20 the 22nd as a full day hearing on the substance of the motion,
21 but rather use that as a case management conference and a
22 time, if I haven’t ruled in writing before on the motion to
23 dismiss, to rule on that motion. And then assuming there’s
24 still a hearing to be set -- And I guess also on that date
25 you can tell [inaudible] choose to have a rebuttal of expert
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1 disclosure if that’s what you hope to do.
2 MR. McGUIRE: By the 22nd?
3 THE COURT: Yes.
4 MR. McGUIRE: Yeah. I mean we can start looking
5 for one now.
6 THE COURT: And then assuming there’s still
7 something to set a hearing for, we’ll go through the setting
8 process on the 22nd. Mr. McGuire, anything you’d like to say
9 about that potential procedure?
10 MR. McGUIRE: Is there a date by which we can have
11 the Court’s recommendation to complete the -- complete the
12 conferring with TBI and the defendant so that we can all be on
13 the same page of how quickly we need to work through this?
14 THE COURT: Well, I guess -- well, here’s what I
15 would envision. I guess I would say if by the 22nd you would
16 have the stipulated facts agreed up --
17 MR. McGUIRE: Uh-huh.
18 THE COURT: -- and you won’t be able to get that
19 accomplished, you’ll be reporting that to me and then I guess
20 that’s when I’d have to resolve the request to take the
21 deposition or not. Anything you want to say about that?
22 MR. McGUIRE: The 22nd is fine with us.
23 THE COURT: Mr. Worcester?
24 MR. WORCESTER: I have one concern. You want us
25 to provide the expert disclosures by the 15th? Could we make
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1 that the same day that they have to do theirs, to give me time
2 to talk to my expert?
3 THE COURT: Well, I guess it depends.
4 MR. WORCESTER: I mean --
5 THE COURT: I guess it depends on whether, Mr.
6 McGuire, you’re asking to designate an expert for your direct
7 case or you’re asking to designate a rebuttal expert.
8 MR. WORCESTER: The issues are not surprises to
9 anybody. It’s whether or not there’s going to be substantial
10 harm to the public interest if these ballots are released.
11 That’s what your expert’s going to testify to.
12 MR. McGUIRE: Right. But I mean your expert
13 obviously is a university professor and we would probably want
14 to know what he was going to say so that we could then
15 identify an expert who could address his testimony and who
16 would have a similar weight. I mean we need to -- we could
17 come up with a different expert to testify on the substantial
18 injury to the public interest, but I mean I think for us to
19 respond to expert testimony it would be helpful if we could
20 designate our expert once we know what your expert’s going to
21 say.
22 THE COURT: Well, again, it goes to the question
23 if you’re now thinking you want to present an expert in your
24 direct case, then I think you do have the right to wait for
25 the first report. If you’re just asking to designate a
--
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1 rebuttal expert who then might never testify if the City’s
2 expert doesn’t, that’s different. I think [inaudible].
3 MR. McGUIRE: Well, we can -- I think in that case
4 maybe what we’ll do is we -- we’d be happy to put forth our
5 own expert, and we could do it on the same timeframe.
6 MR. WORCESTER: So I wouldn’t have to prepare my
7 report until the 22nd as well?
8 MR. McGUIRE: That would probably work better for
9 us because otherwise we’d only have a week to find an expert.
10 THE COURT: Then I’ll make the expert disclosures
11 from both sides due the 22nd. The biggest concern I have in
12 postponing the hearing is trying to find another hearing date.
13 MR. WORCESTER: Incidentally, how is -- we were
14 second in line.
15 THE COURT: I was going to be happy to report to
16 you that you’re now first in line. And you are now first in
17 line on the 22nd. And I don’t know what will happen a little
18 farther out, but -- [Inaudible].
19 MR. McGUIRE: Your Honor, the plaintiff’s going to
20 be actually out of the country until the 14th of February and
21 after -- from the 22nd until the 14th of February. I assume
22 based on the last time [inaudible]. I wanted to raise that.
23 THE COURT: The -- Well, if we let this date go
24 it’s going to be after that because I have long criminal trial
25 coming up [inaudible].
--
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1 MR. WORCESTER: I would ask that it be after March
2 15th, only because I rearranged my schedule in the Court of
3 Appeals and a family vacation around this particular date.
4 MR. McGUIRE: Okay. We wouldn’t have a problem
5 with that.
6 MR. WORCESTER: If you keep this up you can ask
7 the ballots for the next election.
8 MR. McGUIRE: Well, judicial economy.
9 THE COURT: Well, there’s no obvious open dates so
10 on the 22nd we’ll struggle with getting this reset.
11 [Inaudible] right now is the afternoon on March [inaudible].
12 So stipulated facts from the company, if the
13 parties can agree on that by the 22nd, and simultaneously do
14 expert disclosures on the 22nd. That’ll be a ruling conference
15 for the motion to dismiss if I haven’t ruled in writing before
16 that. And we’ll proceed to set the trial and deal with any
17 other case management issues if we have any.
18 MR. WORCESTER: I’m not putting any pressure on
19 you. Are you proposing to have the decision made by the 22nd?
20 THE COURT: That’s what I’m proposing to --
21 MR. WORCESTER: Decision --
22 THE COURT: -- be a non-binding promise sort of --
23 But given the way my schedule usually works actually now that
24 I said that, can we do that conference on the 22nd at 1
25 o’clock?
--
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1 MR. WORCESTER: Sure.
2 THE COURT: [Inaudible]. Mr. McGuire, for the
3 plaintiff then, can I ask you to do a proposed form of Order
4 [inaudible] case management matter that I just ruled on?
5 MR. McGUIRE: Yes, Your Honor.
6 THE COURT: So we will vacate the 22nd hearing and
7 reserve a -- let’s do a 1:30 case management conference.
8 Mr. McGuire, anything else you think we ought to
9 talk about today?
10 MR. McGUIRE: No.
11 Actually, Your Honor, in the event that you do
12 rule in our favor on the motion, currently as I understand it
13 the case is not technically at issue with respect of our being
14 able to take depositions. You know, in the course of putting
15 together our witness lists, obviously witnesses have
16 difficulties and it may be valuable at some point to be able
17 to take a deposition, and the case needs to be at issue as I
18 understand it, for us to do that. So I wondered if the Court
19 could rule that the case is actually at issue at this point,
20 even though we haven’t gotten the answer because their motion
21 to dismiss is still pending.
22 THE COURT: Mr. Worcester, what do you have to
23 say?
24 MR. WORCESTER: Again, my concern is the time, and
25 effort, and energy while a motion to dismiss is pending.
--
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1 THE COURT: I think we’d better --
2 MR. WORCESTER: And expense.
3 THE COURT: -- just leave it in its current status
4 until the 22nd. If I rule on the motion to dismiss at that
5 point and the case survives, you -- I would wait for this yet
6 subsequent answer that may call the case at issue at that
7 point. But I think for today we should just leave things
8 pending for the motion to dismiss.
9 Mr. Worcester, anything else today?
10 MR. WORCESTER: No, Your Honor.
11 THE COURT: Okay. Thank you everybody. January
12 22 at 1:30.
13 MR. WORCESTER: Thank you.
14 MR. McGUIRE: Thank you.
15 (Adjourned)
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1 TRANSCRIBER’S CERTIFICATE
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, Friday, January 15, 2010.
6
7 /s/ Brenda S. Matthews ______
8 Brenda S. Matthews
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