It is ironic that the City of Aspen promoted the idea of transparency about its election prior to undertaking the first public IRV election in Colorado. They contracted with a company whose primary service is providing a fully transparent means of tabulating an election, including single ballot audit ability and several tools to allow the public to fully verify the election. But the City chose to withhold one of those tools, a CD of ballot images, from the public. Marilyn Marks, an ex-candidate in the election, issued an open records request to the City for access to the CD and was rejected. Upon pursuing a suit to obtain that transparency under law, the City is now choosing to try to prevent Marilyn Marks, from learning more under oath from the company which provided Aspen citizens with access to that transparency in order to support her case for transparency.
Surely there is no reason why it would harm the public to know more about how their election was performed.
[above is opinion by H. Branscomb]
Previous coverage of the case including filed documents are located at this link:
http://aspenelectionreview.blogspot.com/2010/02/marks-v-koch-ballot-imagetransparency.html
[motion for protective order by the City of Aspen- note that this is a retyped transcript without the graphic exhibits - these can be found on the original document here: Motion_for_protective_order ]
MOTION FOR PROTECTIVE ORDER PROPOSED DEPOSITION OF TRUEBALLOT
Comes now the Defendant, Kathryn Koch, by and through her undersigned counsel, and hereby moves this honorable court for a protective order to prevent Plaintiff from deposing TrueBallot, Inc. officers or employees; or, in the alternative, a protective order limiting any depositions to only matters relevant to the case at bar or which are reasonably calculated to lead to the discovery of admissible evidence. In this regard, deposition questions should be limited so as to prohibit the following types of questions: how the ballot images were created, how they were duplicated internally, how the election was conducted, how the tabulation of results were done by the Defendant or TrueBallot, how the pre-election or post-election auditing procedures were performed, or any other questions that do not solicit relevant evidence or which can reasonably be calculated to lead to the discovery of admissible evidence.
Pursuant to Rule 26(c), C.R.C.P., the undersigned counsel for Defendant certifies that the parties conferred with regard to this motion during the status conference held by the court on January 28, 2010, but were unable to resolve the dispute.
In support of her motion, Defendant has contemporaneously filed a Memorandum in Support of Motion for Protective Order with the court.
DATED this 4th day of February, 2010.
Respectfully submitted,
Original signature on file
John P. Worcester, #20610
City Attorney
James R. True, #9528
Special Counsel
[memorandum in support of the protective order by the City of Aspen- note that this is a retyped transcript without the graphic exhibits - these can be found on the original document here: Memorandum in support ]
MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER
At the status conference held in this case on January 28, 2010, the court authorized the Plaintiff to depose officers of TrueBallot, Inc. (hereinafter “TBI”) and acknowledged that the Defendant would seek a protective order. TBI is a Maryland corporation and its officers and employees are not subject to subpoena in Colorado. According to Plaintiff, one or more officers or employees of TBI need to be deposed to offer the following testimony:
[T]o testify regarding the creation and public display of the TIFF files on election night, the TrueBallot vote tabulation and verification/audit processes used in the Aspen election, and TrueBallot’s and Defendant’s post-election handling of TIFF files and ballots.
Plaintiff’s Disclosure of Non-Expert Trial Testimony and Trial Exhibits.
For the reasons that follow, Plaintiff should not be allowed to depose officers or employees of TBI. In the alternative, the depositions should be limited to matters that are relevant to the case at bar, or at a minimum, limited to questions that are “reasonably calculated to lead to the discovery of admissible evidence.” Rule 26(b)(1), C.R.C.P.
A. Introduction
Plaintiff’s Complaint claims that the Defendant violated the Colorado Open Records Act (“CORA”) when she denied the Plaintiff an opportunity to inspect certain TIFF files created during the tabulation process in the May 2009 municipal election. The TIFF files that Plaintiff seeks to inspect are nothing more than digital photographs of the original ballots after they were marked and cast 1. These files are contained on a CD that is being held with the paper ballots in a secured location in accordance with the courts preliminary injunction. Attached hereto as Exhibit A is an example of a TIFF file that was created as part of pre-election test of the tabulation equipment and methodology. This particular TIFF file was disclosed by Plaintiff as part of her Disclosure of Trial Exhibits filed with the court on January 8, 2010. Attached hereto as Exhibit B is a copy of the printer’s proof of the ballot used in the May 2009 election. This particular exhibit was disclosed by Defendant as part of her Exhibit List filed with the court on January 8, 1009 [sic]. A comparison of the two documents reveals that TIFF images are, in fact, exact duplicates of the ballots after they have been completed and cast by the voters in the May 2009 election.
Defendant denied Plaintiff’s CORA request and stated two reasons for the denial: (1) the public release of the requested public records is contrary to state laws (i.e., the Colorado Constitution, (Art. VII, §8), and a state statute (§31-10-616, C.R.S.)); and, (2) the public release of the requested public records would cause substantial injury to the public interest. Under CORA, the Plaintiff is entitled to judicial review of the custodian’s decision to deny public access to the requested public records and may require that the custodian show cause “why the custodian should not permit the inspection of such record.” §24-72-204(5), C.R.S. The court in the instant case has scheduled a show cause hearing for March 22-23, 2010. The only issues before the court in the show cause hearing are set forth in the Joint Trial Management Order submitted by the parties to the court on January 7, 2010. The Plaintiff’s claim is against the City Clerk alleging a violation of CORA for failing to make available for inspection 2,544 TIFF files. The Defendant asserts that she properly denied inspection of the TIFF files for the following reasons:
- Article VII, Section 8, of the Colorado Constitution prohibits the Plaintiff’s right of public inspection of TIFF files
- Section 31-10-616(1), C.R.S., is a contrary state statute that constitutes an exception to the Plaintiff’s right of public inspection of TIFF files under Section 24-72-201(a), C.R.S.
- The Plaintiff’s inspection of TIFF files would cause substantial injury to the public interest under Section 24-72-204(6)(b), C.R.S.
The first two defenses can be decided as a matter of law and do not require any factual evidence adduced at the show cause hearing. Thus, the only issue before the court in the show cause hearing is whether , or not, making the TIFF files available for public inspection would cause substantial injury to the public interest.
Defendant seeks a protective order that would prohibit Plaintiff from deposing TBI officers; or, in the alternative, to limit the scope of the deposition of TBI officers because it is clear that Plaintiff’s motives for deposing TBI officers is not do discover relevant evidence in the instant case or to obtain information reasonably calculated to lead to the discover of admissible evidence. Plaintiff is obviously motivated, in great part, by an attempt to gather information to continue her ongoing campaign of disparaging the City of Aspen for the manner in which it conducted the May 2009 municipal election and to question the legitimacy of the Mayor’s election to office.
Plaintiff’s description of how these particular witnesses would testify if called as witnesses reveals Plaintiff’s true purpose for seeking to depose them. As noted above, infra at 2, Plaintiff seeks to obtain evidence
- regarding the creation and public display of the TIFF files on election night;
- the TrueBallot vote tabulation and verification/audit processes used in the Aspen election; and,
- TrueBallot’s and Defendant’s post-election handling of TIFF files and ballots.
Plaintiff’s Disclosure of Non-expert Trial Testimony and Trial Exhibits
None of these matters are relevant to the issues before the court. Moreover, the proposed testimony cannot reasonably be calculated to lead to the discovery of admissible evidence. None of the proposed testimony has any relevance to whether the public release of the TIFF files would cause substantial injury to the public interest. The proposed testimony from the TBI officers is intended to solicit evidence to support Plaintiff’s continuing accusations against the City, the manner in which it conducted the municipal election, and the legitimacy of the Mayor’s election to office.
Plaintiff’s motivation in this regard was evident with the filing of her Complaint,. For example, Paragraph 22 of the Complaint states: “The Plaintiff is aware of irregularities that occurred in the May 5 election involving the IRV tabulation procedure and the Defendant’s subsequent auditing of the tabulation process including, on information and belief, at least the following: …” the paragraph then proceeds to detail numerous allegations of improper tabulation of votes and auditing procedures used to tabulate votes on election night. Of course, none of these factual allegations of alleged wrongdoing by the City have any relevance to the claim that the City Clerk improperly denied Plaintiff access to public records. The factual allegations of wrongdoing were clearly included in her Complaint to support her continuing attacks against the Defendant and the Mayor of the City of Aspen who defeated her in the election.
Further evidence of the Plaintiff’s motives in seeking to depose the TBI officers can be discerned from the set of facts that Plaintiff sought to have Defendant stipulate as true. Attached hereto as Exhibit C is a copy of a portion of an email with the 54 separate factual statements that Plaintiff seeks to introduce as evidence in the show cause hearing. Even if all the statements are factually correct, almost all of them are irrelevant to the issue before the court. Many of the statements appear to establish how the TIFF images were created, seek to prove that the City Clerk failed to perform some task, or seek to show that the TrueBallot employees failed to properly tabulate the election results. For example, factual statement #49 states: “The TBI system for recording and tabulating votes did not tabulate the results for the Art museum ballot question.” Not only is this statement false, but even if true, it has no relevance to the TIFF images or whether their public release would cause substantial injury to the public. Similarly, how the TIFF files were created, named, labeled, or duplicated internally, has no relevance to the issue at hand.
Rule 26(c). C.R.C.P., authorizes the court to enter an order “to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense,” As noted above, the proposed deposition of TBI officers is designed for the sole purpose to annoy or embarrass the defendant 2. In addition, given the significant expense that would be incurred by the City of Aspen in participating in the proposed deposition, it is an undue burden or expense within the meaning of Rule 26(c). This later [sic] point is emphasized by the total lack of probative value of any evidence to be derived by the proposed depositions.
B. Plaintiff is not entitled to conduct any discovery.
The show cause hearing scheduled by the court pursuant to §24-72-204(5), C.R.S., is an “expedited proceeding.” As such, neither Rule 16 nor Rule 26, C.R.C.P., applies to the show cause hearing. The court may, of course, in its discretion, order the parties to comply with either Rule 16 or Rule 26, or both. In any event, discovery may be limited by the general rule that discoverable information is limited to relevant evidence or “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Rule 26(b)(1).
The types of questions and the information Plaintiff seeks to obtain by deposing one or more of the TBI officers should not be allowed. The court should exercise its discretion and not permit the Plaintiff to depose any TBI officers.
C. If Plaintiff is allowed to depose TBI officers, the depositions should be limited to relevant evidence.
If Plaintiff is allowed to depose TBI officers, the depositions should be limited to questions that solicit relevant evidence or, at a minimum, are reasonably calculated to lead to the discovery of admissible evidence. As shown above, Plaintiff’s intentions in this matter are quite evident. She intends to gather as much information about the conduct of the election as she can so she disparage the work done by the Defendant in conducting the municipal election and place into doubt the legitimacy of the Mayor’s election to office.
Thus, in the alternative to prohibiting any deposition of the TBI officers, Defendant urges the court to issue a protective order that limits any depositions to the issues before the court and not how the ballot images were created, how they were duplicated internally, how the election was conducted, how the tabulation of results were done by the Defendant or by TBI, how the pre-election or post-election auditing procedures were performed, or any other questions that do not elicit relevant evidence or which can reasonably by calculated to lead to the discovery of admissible evidence.
DATED this 4th day of February, 2010.
Respectfully submitted,
Original signature on file
John P. Worcester, #20610
City Attorney
James R. True, #9528
Special Counsel
[footnotes moved to end for web format]
1 The parties have stipulated that: “Each tagged image file format (TIFF) file is a digital photograph of a voted paper ballot that was scanned and saved as part of the vote tabulation process conducted on election night by the Defendant and by personnel of TrueBallot, Inc. a Maryland Corporation.” Joint Trial Management Order.
2 It should be noted that the City of Aspen does not believe that anything could be revealed in the proposed depositions that would actually embarrass the City. However, it is clear that Plaintiff’s goal in deposing TBI officers is to question them about the conduct of the election to support the Plaintiff’s continuing campaign against the City of Aspen relating to the conduct of the May 2009 municipal election. Moreover, the proposed depositions are designed to annoy both the City of Aspen and TBI. The Plaintiff has made her public objections to instant run-off voting clear before and after the election. Her actions with regard to these proposed depositions appear to be nothing more than an effort to annoy TBI so that they will avoid contracting with the City of Aspen to help conduct future City elections. In this way, the Plaintiff will affect the City’s ability to conduct an instant run-off election in the future. Plaintiff’s efforts in this regard should not be countenanced as the conduct of the election has absolutely nothing to do with whether the Defendant properly denied Plaintiff’s CORA request.
CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of February, 2010, a true and correct copy of the foregoing MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER was mailed postage prepaid in the U.S. Mail and filed electronically with Nexis/Lexis to the following person(s):
Robert A. McGuire, Esq.
1624 market St., Suite 202
Denver, Colorado 80202
Original signature on file
Tara L. Nelson
[proposed protective order #1 - original here - Proposed protective order #1 ]
DISTRICT COURT, PITKIN COUNTY, STATE OF
COLORADO
Pitkin County Courthouse
506 East Main Street, Suite E
Aspen, Colorado 81611
COURT USE ONLY
Plaintiff:
Marilyn Marks,
Defendant: Case Number: 09 CV 294
Kathryn Koch.
Div.: 3
Attorneys for Kathryn Koch:
John P. Worcester, City Attorney
Jim True, Special Counsel
City of Aspen
130 S. Galena St.
Aspen, Colorado 81611
Telephone: (970) 920-5055
Facsimile: (970) 920-5119
E-mail: johnw@ci.aspen.co.us
jimt@ci.aspen.co.us
[PROPOSED] PROTECTIVE ORDER
Comes now the court, being fully advised in the premises, and hereby ORDERS as follows:
Pursuant to Rule 26(c), C.R.C.P., for good cause shown, Plaintiff shall not be permitted to depose TrueBallot, Inc. officers or employees as previously authorized by the court following a status
Dated: _______________________ _________________________
District Court Judge
[proposed protective order #2 - original here - Proposed protective order #2 ]]
DISTRICT COURT, PITKIN COUNTY, STATE OF
COLORADO
Pitkin County Courthouse
506 East Main Street, Suite E
Aspen, Colorado 81611
COURT USE ONLY
Plaintiff:
Marilyn Marks,
Defendant: Case Number: 09 CV 294
Kathryn Koch.
Div.: 3
Attorneys for Kathryn Koch:
John P. Worcester, City Attorney
Jim True, Special Counsel
City of Aspen
130 S. Galena St.
Aspen, Colorado 81611
Telephone: (970) 920-5055
Facsimile: (970) 920-5119
E-mail: johnw@ci.aspen.co.us
jimt@ci.aspen.co.us
[PROPOSED] PROTECTIVE ORDER
Comes now the court, being fully advised in the premises, and hereby ORDERS as follows:
Pursuant to Rule 26(c), C.R.C.P., for good cause shown, Plaintiff shall be permitted to
Dated: _______________________ _________________________
District Court Judge
[motion for the protective order by the City of Aspen]
No comments:
Post a Comment