Defendants reply to Surreply regarding Protective Order - Marks v. Koch (Aspen Election Transparency Suit)

Below the break is the memorandum by the Aspen City Attorney responding to the Plaintiff's surreply regarding the City's request for a protective order to prevent or to limit the deposition of election tabulation contractor TrueBallot Inc. by Marilyn Marks.  This is the fifth document in the series discussing the access to TrueBallot's testimony.  The City again fails to acknowledge that Plaintiff (and the public) has a reason to inspect the ballot images- namely to be able to understand and be able to correct for errors and irregularities in the election system to protect the quality of the election process for the future. The City acknowledges only two possible such motivations- contesting the election or determining how individual voters voted.  The city has not only mis-characterized Marilyn Marks' motives,  but in addition, the motivation for requesting public information by CORA is not relevant according to law.

Above is opinion by Harvie Branscomb.
Previous coverage of the case is found here: http://aspenelectionreview.blogspot.com/2010/02/plaintiffs-surreply-regarding.html

Click here to read the original pdf of the reply memorandum
 and here to read the accompanying Exhibits A, B and C.


DISTRICT COURT, PITKIN COUNTY, STATE OF COLORADO
Pitkin County Courthouse
506 East Main Street, Suite E
Aspen. Colorado 81611
Case Number: 09 CV 294 Div.: 3

Plaintiff:
Marilyn Marks,
vs
Defendant:
Kathryn Koch.
Attorneys for Kathryn Koch:
John P. Worcester, City Attorney
Jim True, Special Counsel
130 S. Galena St.
Aspen, Colorado 81611
Telephone: (970) 920-5055
Facsimile: (970) 920-5119
E-mail: johnw@ci.aspen.co.us

DEFENDANT'S REPLY MEMORANDUM TO PLAINTIFF'S SURREPLY TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER 

Bodelson v Denver Publishing Co., 5 P.3d 373 (Colo.App.2000), provides guidance on the appropriate balancing test to be used in determining whether the denial of public access to public records is proper when the custodian believes the public release would cause substantial injury to the public interest. However, the holding in Bodelson does not contradict anything that Defendant has stated in previous memoranda in support of her motion for a protection order. Indeed, the case supports much of what the Defendant has argued in her memoranda.

Bodelson reaffirms the holding in Denver Publishing Co. v Dreyfus, 520 P.2d 104 (Colo. 1974) that it is "the public policy of this state, with certain exceptions, that all public records shall be open for inspection by any person at reasonable times." Bodelson, 5 P.3d at 376. And, more importantly, that "[t]his declaration has eliminated any requirements that a person seeking access to public records show a special interest in those records in order to be permitted access to them." Id.
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Defendant has previously suggested that any benefit that inures to the public by the public release of the public record should be considered by the court, but only if the benefits result directly from the release of the public records. This suggested test is exactly what the court in Bodelson offered. The correct balance is between the "public policy of this state, with certain exceptions, that all public records shall be open for inspection at all reasonable times" (Bodelson, supra at 376) versus the substantial injury to the public interest that will be caused by the public release of the records. See, e.g., Freedom Newspapers, Inc. v Tollefson, 961 P.2d 1150 (Colo.App.l998). In determining the "weight" of the substantial injury, the Bodelson court and Defendant have suggested that the benefits to be derived from the release of the ballots should be considered by the court. It is not proper, as Plaintiff suggests, to consider benefits that do not derive directly from the release of the records in question.

Plaintiff maintains that deposing TB1 officials will reveal "why the public interest will benefit from disclosure." Surreply at 2. The question is not why the public benefit will benefit from disclosure but how will the release of the ballot images benefit the public interest. Plaintiff suggests that deposing TBI officials will yield information that will benefit the public interest; to wit: that there were errors and irregularities in the conduct of the election. Whether that is true, or not, is a separate issue than whether there will be any benefit in releasing the ballot images. Plaintiff cannot justify her CORA request under the balancing test set forth above on grounds related to how the ballots were tabulated, which is nothing more than a recount or an election challenge, because those alleged benefits are foreclosed by law. Accepting either as a benefit is contrary to the time limits set forth in C.R.S. Section 31-10-1301, et seq., regarding contests and Section 31-10-1207, regarding recounts. Further, the courts have repeatedly indicated that ballot boxes will not be opened after an election except in the context of an election contest, and then only
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upon a showing of fraud or mistake. Gray v Huntley, 238 P. 53 (Colo. 1925); Kindel v LeBert, 48 P. 641 (Colo. 1897.) Thus, as previously asserted by the Defendant and consistent with Bodelson, the only benefits that should be considered by the court are those that derive directly from the release of the ballot images. Deposing TBI officials may reveal all sorts of information beneficial to the public interest, but unless the information can be shown to be derived from the release of the ballot images, the information is simply not relevant to the inquiry.

Plaintiffs true motives for deposing TBI officials are revealed in her recently filed Notice of Deposition Duces Tecum¹ (Exhibit "A", attached hereto) and her counsel's letter to TBI indicating areas of inquiry (Exhibit "B", attached hereto). For example, Plaintiff seeks to obtain a copy of the agreement between TBI and the City of Aspen. How is that agreement relevant to whether the release of the ballot images would be beneficial to the public interest? (See request No. 4 for documents.) Plaintiff intends to spend up to seven hours deposing TBI officials to discover errors and irregularities in the conduct of the City election (Exhibit "C"). Plaintiff should not be permitted to use the forthcoming show cause hearing to contest the election or depose TBI officials on matters not related to the issue before the court. Thus, Defendant respectfully urges this court to limit the deposition of TBI officials as requested in Plaintiffs motion for protective order. DATED this 26th day of February, 2010.

Original signed by
John Worcester, #20610 City Attorney

¹ Although the Defendant has not formally addressed this issue to this point, it should be noted that the Court did not authorize the issuance of a subpoena duces tecum, which is in essence a request for production of documents and primarily involves documents previously provided to the Plaintiff pursuant to previous CORA requests or that would circumvent the substance of this lawsuit.
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CERTIFICATE OF SERVICE

I hereby certify that on this 26th day of February, 2010, a true and correct copy of the foregoing
DEFENDANT'S REPLY MEMORANDUM TO PLAINTIFF'S SURREPLY TO DEFENDANT' S MOTION FOR PROTECTIVE ORDER was filed electronically with Nexis/Lexis to the following person(s):

Robert A. McGuire, Esq.
1624 Market Street, Suite 202
Denver, Colorado 80202
ram@lawram.com
Original signature on file
Janet Raczak, Paralegal
JPW-2/26/20 JO-9 1648-G:\john\word\plead\Marks
CORA\reply to surrcply to protective order.doc

Exhibit A:

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND
IN RE: Civil Case No.:
MARILYN MARKS
NOTICE OF DEPOSITION DUCES TECUM
TO: TrueBallot, Inc. Attn: John Seibel, Resident Agent 3 Bethesda Metro Center, Suite 750 Bethesda, Maryland 20814
FROM: Marilyn Marks c/o Keith J. Rosa, Esq. Abrams &West, P.C. 4550 Montgomery Avenue Suite 760N Bethesda, Maryland 20814

Please take notice that the Petitioner in the above-captioned case, by and through counsel, will take a Deposition Duces Tecum of TrueBallot, Inc. on Monday March 15,2010 at 9:00 a.m. at the law offices of Abrams & West, P.C., at 4550 Montgomery Avenue, Suite 760N, Bethesda, MD 20814. This deposition will be taken in accordance with Maryland Rules 2412(c) and 2-412(d). The deposition will continue until completed with such adjournments as to time and place as may be necessary. The examination will be recorded by stenographic and/or sound-and-visual (i.e., videotape) methods.

TrueBallot shall designate one or more of TrueBallot's officers, directors, or managing agents, or other persons who consent to testify on TrueBallot's behalf, as to matters known or reasonably available to the organization with respect to the subject matter set forth below. TrueBallot is requested to set forth, for each person designated, the subject matters on which the designee will testify. Please take note that TrueBallot's designation of a person who lacks knowledge of the subject matters specified may constitute a failure by TrueBallot to appear to testify.

DEFINITIONS 

1. "YOU," "YOUR" and "TRUEBALLOT" shall mean TrueBallot, Inc. and all of its affiliates, subsidiaries, predecessors, successors and other related entities, as well as their agents, employees, employers, officers, directors, or other acting, or purporting to act, on their behalf.

2. "ASPEN ELECTION" shall refer to the May 5, 2009 Aspen, Colorado municipal election.

3. "CITY OF ASPEN" and/or "ASPEN" refers to any official, officer, employee, agent or representative of the City of Aspen, Colorado, and to any person acting or purporting to act on behalf or at the direction of any of the foregoing.

4. "TIFF FILE" refers to any computer file containing, at least, metadata and a digital representation of a paper ballot cast at the Aspen election, and that is stored in tagged image file format, on any medium of storage, whether such representation was originally created on May 5, 2009, or at any time thereafter as a copy of another computer file. Compressed, encrypted and/or physically printed forms of TIFF files shall be included within the scope of this definition for all purposes.

5. "AND" and "OR" as used herein mean "and/or" with the singular form being deemed to include the plural and vice versa.

6. "CORRESPONDENCE" as used herein means any contact, oral or documentary, formal or informal, at any place or under any circumstance whatsoever whereby information of any nature is transmitted or transferred, including, without limitation, a single person seeing or hearing any information by any means.

7. "CONCERNING," "RELATING" and "REGARDING" as used herein mean evidencing, referring to, describing, summarizing, reflecting, constituting, or commenting on.

8. "DOCUMENTS" as used herein is used in its broadest sense and includes, without limitation, the original and all non-identical, copies (including drafts and those with any notations) of all writings, recordings, and photographs, including materials in digital form and including but not limited to a book, pamphlet, periodical, letter, memorandum, diary, note, file, calendar, newspaper, magazine, statement, bill, invoice, order, policy, telegram, correspondence, summary, receipt, opinion, investigation statement or report, schedule, manual, financing statement, audit report, tax return, report, record, study, handwritten note, drawing, working paper, chart, index, tape (audio or visual), microfilm, date sheet, email and all other electronic and digital forms of communications, however produced.

INSTRUCTIONS 

1. If you claim any attorney-client privilege, work-product privilege, or any other form of privilege, or any other objection, whether based upon statute, common law or otherwise, as a ground for not producing any requested document, please furnish a list identifying each document for which the privilege or other objection is claimed together with the following information: date, sender(s) (with affiliations and positions), recipient(s) (with affiliations and positions), persons to whom copies were furnished (with affiliations and positions), summary of subject matter, and basis upon which privilege or other objection is claimed. If you claim privilege or any other objection with regard to only part of a document, produce the part to which there is no objection.

2. Produce all documents as they are kept in the normal course of business and identify the file from which each document was taken as well as the name, affiliation and position for each custodian for each file.

3. Produce any document in your possession, custody or control, without regard to its physical location, including documents possessed by your agents, representatives, investigators, accountants, contractors, or their agents, employees, representatives or investigators.

4. This request shall be deemed continuing so as to require supplementation of your response and further production if between the date hereof and the date of the conclusion of this action and any appeals, any additional responsive documents come into your possession, custody or control of the possession, custody or control of any of your affiliates, subsidiaries, and other related entities, as well as your or their agents, employees, employers, officers, directors, or others acting, or purporting to act, on your or their behalf.

5. If a document required to be produced was, but is no longer, in your possession, custody, or control, fully describe the document and state what became of it.

6. Unless otherwise specified, the requests are limited to documents authored, generated, or pertaining to the period between January 1,2007 and the conclusion of this action and any appeals.

7. If you intend to withhold any documents on the basis of an objection, please so state in your response. If you note an objection but indicate that responsive documents are nonetheless being produced, we will construe your statement as a representation that you are producing all responsive documents notwithstanding the objection, save for privileged documents that are identified on a privilege log.

8. Unless otherwise agreed, all electronic documents or electronic data shall be produced in a form which reveals all available electronic information regarding such electronic documents or data.

AREAS OF INQUIRY AT DEPOSITION 

1. TrueBallot's vote tabulation process used in the Aspen election.
2. TrueBallot's verification/audit processes used in the Aspen election.
3. The creation of the TIFF files on election night in the Aspen election.
4. The public display of the TIFF files on election night in the Aspen election.
5. Post-election handling of TIFF files and ballots following the Aspen election.

DOCUMENTS TO BE PRODUCED 

1. All CDs, DVDs, USB drives, portable hard drives and any other forms of removable storage on which are stored any digital representations or interpretations of ballots, in any format, relating to or derived from ballots cast at the May 5, 2009, Aspen municipal election, together with any printed or handwritten labels or other markings attached to such disks.

2. All CDs, DVDs, USB drives, portable hard drives and any other forms of removable storage that bear a printed or handwritten label or other markings which refer to the May 5, 2009, Aspen municipal election and the text of which includes the word, "IMAGES", or any variant of the word, "IMAGES", or the word ,"TIFF" or any variant thereof

1. File names of all computer files stored on fixed hard drives of your computers, including absolute file paths, that contain and/or constitute digital representations or interpretations of ballots, in any format, relating to or derived from ballots cast at the May 5, 2009, Aspen municipal election.

2. Your fully executed Balloting Agreement with the City of Aspen relating to the May 5, 2009, Aspen municipal election.

3. Any other contracts or agreements between you and the City of Aspen relating to the May 5, 2009, Aspen municipal election.

4. Pre-final and final versions of the document dated May 4, 2009, and titled, "TrueBallot's process for scanning, reviewing, tallying and auditing Aspen's election" and containing page 3 titled, "TrueBallot's procedures for processing and independently verifying ballots in Aspen's municipal election."

5. Computer files now or previously named, "1550901 Aspen mayor final data NO IMAGES.zip."

6. Computer files now or previously named, "1550902 Aspen council final data NO IMAGES.zip."

7. Computer files now or previously having a file name containing the text, "1550901 Aspen mayor."

8. Computer files now or previously having a file name containing the text, "1550902 Aspen council."

9. All correspondence with the City of Aspen relating to any error in tabulation results or the scanning, reviewing, tallying and auditing process at the May 5, 2009, Aspen municipal election.

10. All correspondence with the City of Aspen relating to any error in the scanning, reviewing, tallying and auditing process revealed by public testing conducted prior to the May 5, 2009, Aspen municipal election.


11. All correspondence with the City of Aspen relating to a guest editorial regarding the Aspen election written by Caleb Kleppner and published in the Aspen Times.

12. All correspondence with the City of Aspen relating to the projection and/or broadcast of ballot images during the tabulation process.

13. All correspondence with the City of Aspen relating to determination of the public or private character of ballots, TIFF files and/or ballot images.

14. All correspondence with the City of Aspen relating to post-election handling by any person of election data.

15. All correspondence with the City of Aspen transmitting, or attempting to transmit, digital representations of ballots, in any format, relating to or derived from ballots cast at the May 5, 2009, Aspen municipal election.


Respectfully submitted,

Abrams  West, P.C. 4550 Montgomery Avenue, #760N Bethesda, MD 20814 (301)-951-1545 (301)-951-1543 (fax)


CERTIFICATE OF SERVICE 

I hereby certify that on this 16th day of February 2010, a copy of the foregoing Notice of Deposition was sent by facsimile and first class mail, postage prepaid, to:

Robert A. McGuire, Esq.
Colorado Attorney for Marilyn Marks
Robert A. McGuire, Attorney at Law, LLC 1624 Market Street, Suite 202 Denver, Colorado 80202
John Worcester City Attorney City of Aspen, Colorado 130 S Galena Aspen, Colorado 81611
James R. True Special Counsel City of Aspen, Colorado 130 S Galena Aspen, Colorado 81611
Keith J. Rosa,



Exhibit B:

February 8, 2010
Mr. John L. Seibel
President
TrueBallot, Inc.
3 Bethesda Metro Center, Suite 750
Bethesda, Maryland 20814
RE: Marks v. Koch, 2009CV294, Pitkin County, Colorado, District Court
Dear Mr. Seibel:

You are aware that the Court in the above case has authorized the Plaintiff Marilyn Marks’s deposition of TrueBallot, Inc.

The deposition of TrueBallot, Inc. (“TrueBallot”), is scheduled for the date set out in the enclosed Deposition Subpoena Pursuant to Rule 45, Colorado Rules of Civil Procedure and the enclosed Notice of Deposition Pursuant to Rule 30(b)(6), Colorado Rules of Civil Procedure.

In order to clarify particular details of the corporation’s knowledge that I will be seeking from TrueBallot’s designee(s) on the subject matters identified in the Notice of Deposition, I ask you to note that I will seek at least the following details on the indicated topics:

1. TrueBallot’s scanning, reviewing, tallying and auditing process used in the May 5, 2009, Aspen election. This subject area will include examination regarding, at least,

• the terms and scope of services that TrueBallot agreed to render to the City of Aspen under the Balloting Agreement and any other contract or letter of understanding, including the nature of confidentiality obligations imposed thereunder;
• identities and roles of TrueBallot personnel involved in the scanning, reviewing, tallying and auditing process, including any oath-taking or similar activities performed;
• details of all pre-election public and private testing of TrueBallot’s scanning, reviewing, tallying and auditing system, including results thereof;
• mechanics of the scanning, reviewing, tallying and auditing process conducted by TrueBallot, including both the steps performed and details of the operating system, software applications and hardware platforms utilized;
• any certifications sought or obtained from the Colorado Secretary of State of TrueBallot’s scanning, reviewing, tallying and auditing process and/or its separate constituent software programs;
• mechanisms used by the scanning, reviewing, tallying and auditing process to flag certain ballots for human review;
• capabilities of the scanning, reviewing, tallying and auditing process to detect, discern, record, flag and tabulate indicia of voter intent, including written voter instructions on a scanned ballot, and write-in candidate names;
• capabilities of the scanning, reviewing, tallying and auditing process to detect, record and flag stray, questionable, or unusual marks on a scanned ballot;
• details of the voter mark detection process and the generation of raw and cleaned data strings from the TIFF files;
• use of an incorrect tabulation method applying Cambridge, Massachusetts, rules on election night; and
• specific details and circumstances of any changes to the TrueBallot software configuration used in the scanning, reviewing, tallying and auditing process, including to any tabulation queries, that were made in the 48 hours prior to the election.

In any event, the designee will need to testify about details of the public test where the City Council candidate with the fewest votes was allegedly preliminarily declared the winner and to provide specific details of the software changes that were allegedly made shortly before the election following erroneous result produced in public tests. The designee will also need to be familiar with and able to recognize and explain the election data provided to the City of Aspen and subsequently released to the public, including in particular (but without limitation) the contents of the Access database table “TallyIRVCleaning.”

2. TrueBallot’s verification/audit processes used in the May 5, 2009, Aspen election. This subject area will include examination regarding, at least,

• the steps required to perform verification of scanning, reviewing, tallying and auditing results;
• TrueBallot’s post-election testing and review processes;
• TrueBallot’s discovery of the erroneous utilization on election night of the tabulation method of Cambridge, Massachusetts, including the nature of the error and the circumstances of its discovery; and
• communications with the City of Aspen about this discovered error.

3. The creation of the TIFF files on election night in the May 5, 2009, Aspen election. This subject area will include examination regarding, at least,

• the DPI resolution, color and copying fidelity of the TIFF files created by the scanning process;
• the specifications of the scanning equipment and software used to create the TIFF files;
• the schema for naming TIFF files;
• the character of the TIFF files, including details of any metadata they may contain;
• the step-by-step processing of the TIFF files; and
• the storage of TIFF files within the file system of TrueBallot’s computer(s) and/or other hardware at each step of the scanning, reviewing, tallying and auditing process.

In any event, the designee will need to testify about details of the network architecture, directory structures and hardware configuration in which the TIFF files were created and stored. The designee will need to be familiar with the specific computer source code implementing the various steps of the scanning, reviewing, tallying and auditing process, including in particular which underlying API function calls were utilized by the tabulation system to create, move, edit, delete and copy TIFF files at each step of the scanning, reviewing, tallying and auditing process.

4. The public display of the TIFF files on election night in the May 5, 2009, Aspen election. This subject area will include examination regarding, at least,

• TrueBallot’s communications with the City of Aspen concerning the projection and broadcast of ballot images during the scanning, reviewing, tallying and auditing process;
• TrueBallot’s communications with the City of Aspen about the public release of TIFF files following the election;
• steps performed and equipment and software used by TrueBallot personnel on election night to facilitate the projection and television broadcast of images; and
• details of the colored overlays that were projected on top of the TIFF file images during the public display and the possible cause of mismatches between overlays and the TIFF file images that were simultaneously displayed therewith.

5. Post-election handling of TIFF files and ballots following the May 5, 2009, Aspen election. This subject area will include examination regarding, at least,

• the creation of any CD or DVD disks containing TIFF files;
• deletion and/or retention of TIFF files on TrueBallot’s computers and removable storage following the election scanning, reviewing, tallying and auditing process; and
• TrueBallot’s backup and archive policies as applied since May 5, 2009, to the computer hardware utilized in the Aspen election;

I am providing you with this clarification so that you may enable the designee(s) to ascertain the corporate knowledge about which they will be deposed. As you are no doubt aware, under C.R.C.P. 30(b)(6), TrueBallot, Inc., has an obligation to ensure that its designee(s) investigate and prepare to testify on the designated topics.

In addition, I would call your attention to the request for document production contained in the enclosed Deposition Subpoena. One item in particular that we expect TrueBallot to produce in response to our request is a certain CD or DVD disk, which was the subject of a discussion between Harvie Branscomb and Nick Koumoutseas on January 20, 2010, and which at that time was in Mr. Koumoutseas’s physical possession. This disk was described to Mr. Branscomb as containing two zip files of approximately 100 megabytes each and bearing a label that contained wording similar to the phrase, “images plus data.”

Please let me know by no later than seven days prior to the scheduled date of the deposition whom TrueBallot, Inc., will designate to testify on its behalf on each of the subject matters set out in the enclosed Notice of Deposition.

Thank you in advance for your assistance.

Very truly yours,
Robert A. McGuire, III, Esq.
Enclosures (2)
Cc: John P. Worcester, Counsel for Defendant Kathryn Koch
Cc: James R. True, Counsel for Defendant Kathryn Koch

Exhibit C:

From: Robert McGuire [mailto:ram@lawram.com]
Sent: Friday, February 19, 2010 6:09 PM
To: 'Jim True'
Cc: John Worcester; Keith J. Rosa Esq.
Subject: RE: Deposition date for TrueBallot

Jim,

Since the deposition could require up to seven hours of testimony time, plus any additional time that may be required for breaks, it probably makes the most sense to do it on a day when you are available all day.

Assuming Friday, March 12, also works for the TrueBallot, shall we tentatively plan on conducting the deposition beginning at 9:00 am on Friday, March 12, and continuing until completion?

Please confirm this works for you and we will confirm it separately with TrueBallot.

Best,
Robert McGuire



Robert A. McGuire, Attorney at Law, LLC
1624 Market Street, Suite 202
Denver, Colorado 80202

Phone: 303-734-7175
Fax: 303-734-7166
Email: ram@lawram.com
Web: www.lawram.com