Marks v. Koch - Plaintiff response to City motion for protective order

Previous coverage of the case is found here:
http://aspenelectionreview.blogspot.com/2010/02/marks-v-koch-city-motion-for-protective.html

On February 11, Marilyn Marks' attorney filed a brief in opposition to the City of Aspen motion for a protective order to prevent a deposition of TrueBallot Inc., the company which tabulated the May 5, 2009 election for the City of Aspen.  That response is found here, below the break.

DISTRICT COURT, PITKIN COUNTY, COLORADO

Pitkin County Courthouse

506 East Main Street, Suite 300

Aspen, Colorado 81611

Plaintiff:

MARILYN MARKS

v.

Defendant:

KATHRYN KOCH

 ▲ COURT USE ONLY ▲

Attorney for Plaintiff: Case Number: 2009CV294

Robert A. McGuire

Robert A. McGuire, Attorney At Law, LLC

1624 Market Street, Suite 202

Denver, Colorado 80202

Phone Number: 303-734-7175 Div.: 3 Ctrm.:

FAX Number: 303-734-7166

E-mail: ram@lawram.com

Atty. Reg. #: 37134

MEMORANDUM OF MARILYN MARKS, PLAINTIFF,

IN RESPONSE TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER

This memorandum is submitted on behalf of the Plaintiff, Marilyn Marks, by and through her undersigned counsel, to oppose the Defendant’s Motion for Protective Order.

STATEMENT OF FACTS

TrueBallot, Inc. (“TBI”) is a Maryland corporation engaged in the business of election and ballot administration. The City of Aspen engaged TBI to, inter alia, perform election-night tabulation of results in the May 5, 2009, Aspen municipal election. In so doing, TBI personnel created the public records (“TIFF files”) that are now the subject of this action under Section 24-72-204(5) of the Colorado Open Records Act (“CORA”), §§ 24-72-100.1 to -502. On or about December 30, 2009, Mr. John Seibel, the President of TBI, told Plaintiff’s counsel that TBI would voluntarily provide a witness to testify at the Show Cause Hearing in this case. On January 7, 2010, however, Mr. Seibel reversed himself and informed Plaintiff’s counsel that TBI would not, in fact, be available to testify at the Show Cause Hearing. TBI and all of its managers, officers and employees are non-residents of Colorado, and the Plaintiff anticipates that she will be unable to procure the attendance of any of them by subpoena to testify at the Show Cause Hearing now scheduled for March 22-23, 2010.

At the Pre-trial Conference held on January 8, 2010, the Plaintiff requested leave of the Court to depose TBI to obtain relevant facts that the Plaintiff could introduce at the Show Cause Hearing pursuant to C.R.C.P. 32(a)(3)(E). The Defendant objected to the Plaintiff’s request on grounds of relevance and expense, (see Tr. Pre-trial Conf. at 6-7), but the Plaintiff made a verbal offer of proof and the parties ultimately agreed to attempt to stipulate, with TBI’s presumed assistance, to a set of mutually agreed facts such as would obviate the need for the Plaintiff to obtain testimony directly from TBI, (see id. at 11.) The Court so ordered and otherwise held in abeyance the Plaintiff’s request to depose TBI. (See Granted [Proposed] Order, Jan. 15, 2010.)

On January 15, 2010, further to the Court’s Order, the Plaintiff proposed a set of 54 stipulations to the Defendant and to Mr. Seibel and invited each of them to provide comments on the wording and veracity of the proposed stipulations and to join in a three-way telephone call to resolve any disputes as to substance. On January 19, 2010, Mr. Seibel declined on behalf of TBI to assist the parties in their attempt to agree on the proposed stipulations. On January 20, 2010, counsel for Defendant informed the undersigned that the Defendant would only be willing to stipulate to a single fact out of the Plaintiff’s proposed set of 54 stipulations.

At the Case Management Conference held on January 28, 2010, the Plaintiff renewed her request to depose TBI in light of the clear failure of the parties to arrive at stipulations as a substitute for a deposition of TBI. The Defendant renewed her objection that TBI had no relevant testimony to provide, but the Court authorized the Plaintiff to conduct the deposition. 2 On February 4, 2010, the Defendant filed her Motion for Protective Order asking the Court to prevent or alternatively limit the scope of the Plaintiff’s deposition of TBI.

As of the date hereof, the Plaintiff expects to serve the Defendant and TBI with a Notice of Deposition Pursuant to Rule 30(b)(6), Colorado Rules of Civil Procedure, designating the following five topics of examination:

1. The creation of the TIFF files on election night in the Aspen election.

2. Post-election handling of TIFF files and ballots following the Aspen election.

3. The public display of the TIFF files on election night in the Aspen election.

4. TBI’s vote tabulation process used in the Aspen election.

5. TBI’s verification/audit processes used in the Aspen election.

These five topics of examination are substantively identical to the three topics of examination that the Defendant has anticipated from the Plaintiff’s earlier witness disclosures and that the Defendant now seeks to limit through her Motion for Protective Order. (See Def.’s Mem. Supp. Mot. Protect. Order at 3.)

ARGUMENT

The Defendant’s Motion for Protective Order should be denied because all five of the topics of examination proposed by the Plaintiff are relevant under the standard of C.R.C.P. 26(b)(1) and because the Defendant has failed to meet her burden under C.R.C.P. 26(c) of showing that her fear of annoyance, embarrassment, oppression, or undue burden or expense outweighs the Plaintiff’s strong interest in discovery of the material facts to which TBI can attest.

I. Standards of Review.

Rule 26(a) of the Colorado Rules of Civil Procedure expressly allows for the provisions of Rule 26 to apply to expedited cases such as this one where the Court has so ordered. In this

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case, the Court’s Order authorizing the deposition of TBI implicates the standards applicable to Rule 26 discovery.

A. Standard of relevance under Rule 26(b)(1).

The standard of relevance applicable to the five subject matters on which TBI will be deposed is the standard established by Rule 26(b)(1), which provides that parties “may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party….” (emphasis added). Even inadmissible material is discoverable under Rule 26(b)(1), provided it is relevant and non-privileged, or if it appears reasonably calculated to lead to the discovery of admissible evidence. See Bowlen v. District Court, 733 P.2d 1179, 1182 (Colo. 1987); see also C.R.C.P. 26(b)(1). The threshold for relevance under Rule 26(b)(1) is lower than what is required for admissibility at trial, as the Rule requires only that the subject matter of

discovery should “generally bear on” the issues before the Court. See Martinelli v. District Court, 199 Colo. 163, 168 (1980), 612 P.2d 1083, 1087 (Colo. 1980).

B. Standard for granting a protective order under Rule 26(c).

The Defendant’s Motion for Protective Order is made under Rule 26(c), which permits the Court “for good cause shown, [to] make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense….” The party opposing discovery bears the burden of establishing the need for a protective order, see Williams v. District Court, 866 P.2d 908, 912 (Colo. 1993), which means that the party opposing discovery bears the burden of showing annoyance, embarrassment and oppression, see Bond v.District Court, 682 P.2d 33 (Colo. 1984). Furthermore, the kinds of “annoyance, embarrassment, oppression, or undue burden or expense” that protective orders under Rule 26(c) are intended to protect against are variations that rise to the level of discovery abuse. See

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Williams, 866 P.2d at 912 (“This court has frequently recognized that the broad discovery permitted by C.R.C.P. 26(b)(1) may lead to discovery abuses. …. For this reason, C.R.C.P. 26(c) allows the trial court to issue protective orders as justice requires….” (citation omitted) (emphasis added)).

In determining whether the party opposing discovery has met its burden of establishing the need for a protective order, the Court must weigh the interest of the party seeking discovery of material facts against the countervailing interest of the party opposed. See Belle Bonfils Memorial Blood Center v. District Court, 763 P.2d 1003, 1010 (Colo. 1988). In close cases, the balance must be struck in favor of allowing discovery. See Direct Sales Tire Co. v. District Court, 686 P.2d 1316, 1321 (Colo. 1984). Importantly, the cases indicate that it is the actual interests of the parties, rather than the perceived or imagined motives of either of them, that must be considered in a Rule 26(c) balancing determination.

II. The subject matters proposed by the Plaintiff are relevant under Rule 26(b)(1).

The five subject matters on which the Plaintiff seeks to depose TBI, which are set out in the Statement of Facts, supra at 3, are directly relevant under Rule 26(b)(1) to two key defenses offered by the Defendant in this action.

A. How the TIFF files were created and handled is directly relevant to whether Section 31-10-616(1), C.R.S., can properly be applied to the TIFF files. In her Motion to Dismiss dated November 6, 2009, the Defendant asserted the defense that Section 31-10-616(1), C.R.S., which requires a certain method for storing and preserving ballots following an election, applies to TIFF files and therefore exempts them from public inspection under CORA. To develop facts relevant to this defense, the Plaintiff seeks to examine

TBI regarding the following two of her five proposed subject matters: the creation of the TIFF

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files on election night in the Aspen election; and post-election handling of TIFF files and ballots following the Aspen election.

Evidence about the creation and nature of the TIFF files, including evidence of what information the TIFF files contain or lack and how that information may correspond to the information contained on the underlying ballots from which the TIFF files were created, bears directly on the Court’s determination whether or not the term, “ballots,” as used in Section 31-10-616(1), C.R.S., can properly be read to apply to TIFF files as well as to literal ballots.¹ Evidence about the post-election handling of TIFF files, including their duplication, destruction and retention by TBI, as well as evidence about differences in how the TIFF files were

manipulated and handled in comparison with the treatment of the actual ballots themselves, bears directly on how applying Section 31-10-616(1), C.R.S., to TIFF files fails to match what actually happened in this case and produces absurd and unenforceable results. 

The Defendant claims that Section 31-10-616(1), C.R.S., should apply to TIFF files as a matter of law and therefore that this defense does not require “any factual evidence adduced at

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the show cause hearing.” (Def.’s Mem. Supp. Mot. Protect. Order at 3.) However, the Plaintiff has previously noted that facts about the character of the TIFF files are relevant to and must inform the Court’s determination of whether Section 31-10-616(1), C.R.S., should apply to TIFF files. (See Pl.’s Mem. Resp. Def.’s Mot. Dismiss at 19.) In any event, the relevance standard of Rule 26(b)(1) is clearly met here, where the evidence that TBI can contribute with respect to these two proposed subject matters unquestionably bears on a defense offered by the Defendant. See Martinelli v. District Court, 199 Colo. 163, 168 (1980), 612 P.2d 1083, 1087 (Colo. 1980).

B. The conduct of, and evidence of errors and irregularities in, Aspen’s instant run-off election are directly relevant to the public interest in allowing disclosure of the TIFF files.

In her Motion to Dismiss dated November 6, 2009, the Defendant asserted the defense that disclosure of the TIFF files would do substantial injury to the public interest under Section 24-72-204(6), C.R.S. Whether substantial injury to the public interest will occur in a CORA case is an issue of material fact, see Civil Serv. Comm'n v. Pinder, 812 P.2d 645 (Colo. 1991), the determination of which requires a balancing of the interests favoring disclosure against the interests favoring nondisclosure, see Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 1157 (Colo. App. 1998); Denver Post Corp. v. University of Colorado, 739 P.2d 874, 879 (Colo. App. 1987); cf. Pinder, 812 P.2d at 649-50. Under this case law, the Defendant’s assertion of the defense of “substantial injury to the public interest” means that evidence generally bearing on

the benefit to the public interest from allowing inspection of the TIFF files is relevant under Rule 26(b)(1).

To develop facts probative of the public interest, the Plaintiff seeks to examine TBI regarding the following three of her five proposed subject matters: public display of the TIFF files on election night in the Aspen election; TBI’s vote tabulation process used in the Aspen

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election; and TBI’s verification/audit processes used in the Aspen election. The context of the Plaintiff’s CORA request demonstrates the relevance of these areas of inquiry under Rule 26(b)(1). Specifically, as the Plaintiff alleged in her Verified Complaint, the novel instant run-off voting (“IRV”) system used in the May 5, 2009, Aspen municipal election is the subject of ongoing public debate in which the Plaintiff, as a former mayoral candidate, is an active participant. (See, e.g., V. Compl. ¶¶ 4-5, 23, 39.) Because the IRV system remains the law and will be used in Aspen again, the public interest in understanding whether the system properly functioned the first and only time it has ever been used in Aspen is readily apparent.

Inquiry in the three designated subject areas will elicit evidence showing that public disclosure of the TIFF files is the only way to allow independent verification of whether the IRV system functions properly. More specifically, evidence about the public display of the TIFF files on election night in the Aspen election bears directly on the inconsistency and lack of credibility of the Defendant’s view of the public interest adopted for purposes of this case. Evidence about TBI’s vote tabulation process used in the Aspen election, including whether TBI’s software was capable of correctly processing TIFF files according to Aspen’s IRV rules, bears directly on the public interest favoring disclosure of the TIFF files themselves. Evidence about TBI’s

verification/audit processes used in the Aspen election will show that independent verification of the tabulation process is impossible without independent inspection of the TIFF files, which, together with evidence of irregularities and tabulation errors, bears directly on the public interest favoring disclosure of the TIFF files.

Because the evidence that TBI can contribute with respect to these three proposed subject matters bears on the Defendant’s “substantial injury to the public interest” defense, they are relevant under Rule 26(b)(1). See Martinelli, 199 Colo. at 168, 612 P.2d at 1087.

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C. The specified subjects of inquiry that the Defendant seeks to prohibit are relevant to at least one of the Defendant’s affirmative defenses.

In the event the Court allows the deposition of TBI, the Defendant alternatively requests that the scope of the deposition be limited to exclude five specified types of questions, as well as any others that solicit irrelevant evidence. (See Def.’s Mot. Protect. Order at 2.) Each of the five types of questions specified by the Defendant, however, clearly falls within the deposition subject matters set out in the Statement of Facts, supra at 3, and the relevance of these subject matters under Rule 26(b)(1) has already been shown in Sections II.A and II.B, supra. Therefore, for the reasons already set out herein, the Court should deny the Defendant’s alternative request to exclude the five types of questions specified from the scope of the deposition.

III. The Defendant has failed to establish annoyance, embarrassment, undue burden or expense that outweighs the Plaintiff’s interest in discovery of material facts. The Defendant suggests that the Plaintiff’s request “is designed for the sole purpose to annoy or embarrass” the Defendant. (Def.’s Mem. Supp. Mot. Protect. Order at 6.) She further argues that the expense of participating in the proposed deposition “is an undue burden or expense within the meaning of Rule 26(c).” (Id.)

Although the Defendant liberally (and inaccurately) attributes malicious motives to the Plaintiff throughout her Memorandum, (see, e.g., id. at 4, 5, 6, 6 n.2), she has entirely failed to show, as is her burden under Williams v. District Court, 866 P.2d 908, 912 (Colo. 1993), and Bond v. District Court, 682 P.2d 33 (Colo. 1984), that the Defendant will herself actually suffer annoyance, embarrassment, undue burden or expense. Instead, the Defendant concedes that she “does not believe that anything could be revealed in the proposed depositions that would actually embarrass the City.” (Def.’s Mem. Supp. Mot. Protect. Order at 6 n.2.) Furthermore, any undue burden or expense that the deposition would impose on the Defendant has been mitigated by the

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Court’s Order of February 5, 2010, issued at the Status Conference held by telephone, in which the Court granted the request of Defendant’s counsel to attend TBI’s deposition by telephone. This leaves only the allegation of annoyance, but the Defendant has made no showing at all that whatever annoyance she expects to suffer will differ in any qualitative way from the typical sort of annoyance ordinarily occasioned by litigation, much less that it would constitute a discovery abuse sufficient to justify a protective order, see Williams, 866 P.2d at 912. The Plaintiff has shown in Section II, supra, that TBI’s testimony is relevant to address two key defenses offered by the Defendant in this case. Given the Court’s need to balance the annoyance of the Defendant against the interest of the Plaintiff in seeking discovery of material facts, see Belle Bonfils Memorial Blood Center v. District Court, 763 P.2d 1003, 1010 (Colo. 1988), and to favor discovery in close cases, see Direct Sales Tire Co. v. District Court, 686 P.2d 1316, 1321 (Colo. 1984), there can be little doubt here that the Defendant has failed to meet her burden of establishing the need for a protective order.

CONCLUSION

For the foregoing reasons, the Plaintiff respectfully requests that the Defendant’s Motion for Protective Order to prevent or alternatively limit the scope of the Plaintiff’s proposed deposition of TrueBallot, Inc., be denied.

[footnote moved to here for web publication]

¹ Although the parties submitted a Proposed Trial Management Order on January 7, 2010, which contained stipulation #5, stating that each TIFF file “is a digital photograph of a voted paper ballot,” the Plaintiff’s ongoing investigation of facts in this case has revealed that material differences of informational content may exist between ballots and TIFF files. Thus this stipulation may be misleading and is hereby withdrawn. Additional evidence about the fidelity with which the TIFF files reflect their corresponding ballots is required and will bear on whether the TIFF files should be treated as equivalent to ballots under Section 31-10-616(1), C.R.S.

Respectfully submitted this 11th day of February, 2010. 

 By: S/ Robert A. McGuire_______________

 Robert A. McGuire, Reg. No. 37134

1624 Market Street, Suite 202

Denver, Colorado 80202

(303) 734-7175

(303) 734-7166 Fax

ram@lawram.com

 Attorney for Plaintiff Marilyn Marks

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CERTIFICATE OF SERVICE

I hereby certify that on this 11th day of February, 2010, I served a true and correct copy of the foregoing MEMORANDUM OF MARILYN MARKS, PLAINTIFF, IN RESPONSE TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER by the method indicated below to each of the following:

Attorney Firm And/Or Address: Method

John Worcester City Attorney Lexis Nexis File & Serve

 City of Aspen, Colorado

130 S Galena

Aspen, Colorado 81611

James R. True Special Counsel Lexis Nexis File & Serve

 City of Aspen, Colorado

130 S Galena

Aspen, Colorado 81611

 S/ Robert A. McGuire_______________

 Robert A. McGuire, Reg. No. 37134

1624 Market Street, Suite 202

Denver, Colorado 80202

(303) 734-7175

(303) 734-7166 Fax

ram@lawram.com

Attorney for Plaintiff Marilyn Marks