Plaintiff's Surreply regarding Defendant's Motion to protect TrueBallot from deposition - Marks v. Koch (Aspen Election Transparency Suit)

On Feb. 23, 2010, the attorney for Marilyn Marks filed a 3 page memorandum further pursuing opposition to the City of Aspen request for a protective order to prevent deposition of TrueBallot, Inc. by Marilyn Marks. This memorandum, shown here below the break, refers to additional case law which is pertinent to what argument is to be used in the balancing test which would form the basis for denying the Plaintiff the right to obtain testimony by deposition.

Above is opinion by Harvie Branscomb.
Click here for the original pdf of the SurreplyToMotionForProtectiveOrder.pdf
Previous coverage of the Marks v. Koch transparency case is located here: http://aspenelectionreview.blogspot.com/2010/02/reply-in-support-of-defendants-motion.html

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

PLAINTIFF’S SURREPLY OPPOSING MOTION FOR PROTECTIVE ORDER

The Plaintiff seeks testimony and documents from the deposition of TrueBallot, Inc. (“TBI”), that bear directly on why the public interest will benefit from disclosure of the TIFF files. Under the decision of the Colorado Court of Appeals in Bodelson v. Denver Publ’g Co., 5 P.3d 373 (Colo. App. 2000), such evidence is properly considered by this Court in determining whether disclosure will cause “substantial injury to the public interest.” Because this evidence is relevant under Rule 26(b)(1), the Defendant’s request to restrict the scope of discovery from TBI’s deposition should be denied.

ARGUMENT

The Defendant’s understanding of the balancing test used to determine whether disclosure of public records will do substantial injury to the public interest is flawed. Bodelson, which has not yet been raised in motion pleadings, contains two dispositive holdings: First, the “substantial injury” balancing test does weigh the particular benefits of disclosure (not just CORA’s general presumption favoring disclosure) against the harms; and, second, the balancing test properly considers evidence showing why the public interest will benefit from disclosure. In Bodelson, the Denver Post sought disclosure of autopsy reports from the Columbine High School shootings. The custodian asserted that disclosure would cause substantial injury to the public interest and produced evidence of harms that would result. See Bodelson, 5 P.3d at 378. The Post produced no evidence to show the benefits of disclosure of the autopsies. See id. This failure by the Post to produce evidence favoring disclosure allowed the custodian to prevail in the “substantial injury” balancing test. See id. When the trial court conducted the balancing test, it explicitly weighed “the good that [was] to be accomplished by release of this information against the harm to the entire community.” Id. (emphasis added). Having received no evidence of actual benefits of disclosure, the trial court was only able to weigh the custodian’s evidence of harm and accordingly found that disclosure would do substantial injury to the public interest. The Court of Appeals affirmed the trial court’s interpretation that the “substantial injury” balancing test considers evidence of the actual benefits of disclosure, holding that the trial court acted properly in “weighing the benefits of releasing the autopsy reports against the harm,” id. at 380, and “in attempting to balance competing interests,” id. at 379. Going even further, the Court of Appeals approvingly recited the trial court’s finding that, although the Post had argued “there were lessons that could be learned from review of the autopsies,” id. at 378, such arguments alone were inadequate because they “did not explain what lessons in particular might be learned.” Id. (emphasis added). Such a finding admits only one conclusion: Evidence explaining why the public interest will benefit from disclosure is directly relevant to, and is properly weighed by, the “substantial injury” balancing test.

2

In this case, the Plaintiff seeks precisely the kind of evidence from TBI that the Post failed, to its detriment, to produce in Bodelson. Specifically, the testimony and documents that the Plaintiff seeks from TBI will show (1) that independent verification of the results produced by Aspen’s uncertified election system cannot be performed without the TIFF files; and (2) that the public interest favors such verification (and therefore favors disclosure of the TIFF files) because of the errors and irregularities that occurred in Aspen’s municipal election, which have raised questions about whether Aspen’s new and uncertified election system properly functions. It would be fundamentally unjust for the Court to limit discovery of this relevant evidence. The Defendant here has asserted – and claims the relevance of – the purely speculative harms that disclosure might cause in theory by facilitating imaginary vote-buying schemes. Yet she seeks at the same time to suppress, as irrelevant, any and all real-world evidence of non-hypothetical errors and irregularities that actually occurred in Aspen’s election. Such election problems explain why the public interest will benefit from disclosure of the only data that allows for independent verification of Aspen’s uncertified new election system. The Defendant’s double standard for relevance of such evidence is incoherent and must be rejected.

CONCLUSION

For the foregoing reasons, as well as for those set out in the Plaintiff’s response, the Plaintiff respectfully requests that the Court deny the Defendant’s Motion for Protective Order.

Respectfully submitted this 23rd day of February, 2010.

By: S/ Robert A. McGuire_______________

 Robert A. McGuire, Reg. No. 37134

1624 Market Street, Suite 202

Denver, Colorado 80202

Tel.: (303) 734-7175 / Fax: (303) 734-7166

ram@lawram.com

Attorney for Plaintiff Marilyn Marks

3

CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of February, 2010, I served a true and correct copy of the foregoing PLAINTIFF’S SURREPLY OPPOSING 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

Tel.: (303) 734-7175 / Fax: (303) 734-7166

ram@lawram.com