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IBM litigation explores executive privilege issue

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A Marion Superior judge has ordered Indiana state officials to turn over thousands of documents relating to the state’s cancellation of a welfare system modernization, ruling on an issue of first impression about whether a “deliberative processes” executive privilege exists in Indiana.

Two rulings by Judge David Dreyer since early February open the door for the state’s highest appellate courts to tackle an issue they have not considered and ruled on before, and the state’s legal team is deciding in the next 10 days whether an appeal will be filed to have that question resolved.

The ruling Tuesday outlines what Indiana must turn over in the suit and countersuits of State of Indiana v. IBM and IBM v. State of Indiana, No. 49D10-1005-PL-021451, which centers on the cancellation of IBM's $1.37 billion contract to modernize the state's welfare system. The state sued IBM in May to try and recoup $437 million it had paid to the company before cancelling the 10-year contract in 2009, as a result of what the governor described as three years of complaints about the automated system. The computer giant countersued, claiming breach of contract and saying the state still owes about $100 million.

As the discovery has progressed, both sides are disputing what materials should be available and are also arguing about whether Gov. Mitch Daniels and his chief of staff Earl Goode should have to appear for depositions in the lawsuits. The state’s legal team requested a protective order during a March 18 hearing to keep the two executive branch leaders from providing “unnecessary and burdensome depositions,” while IBM’s attorney argued that Daniels was a key player in the project and can provide insight into what happened.

Ruling on the “deliberative processes" issue in February, Judge Dreyer determined that this type of executive privilege does apply in Indiana but that it may not apply to the materials in this particular state-initiated litigation. That ruling relied on federal law and other state statutes and court rulings addressing the qualified executive privilege, and the judge found guidance in Indiana statutes and legislative discussion about maintaining a “clear and deliberate regard” for executive privilege involving decision-making material.

Judge Dreyer also determined that this type of privilege should be allowed in civil litigation, citing an Ohio case from 2006 as a key guidance on that.

“Although not provided by statute, or directly found in Indiana common law, it is simply untenable to find an executive privilege can not apply to Indiana civil discovery,” he wrote. “Otherwise, there is no executive communication that is not discoverable – any lawsuit with minimally adequate allegations may suffice. As Indiana law generally endorses the public interest policy and application of executive privilege, civil discovery is at least analogous to, if not directly bound by, the weight of this surrounding authority.”

After that initial ruling, the state in early March turned over the documents in question for Judge Dreyer to review privately in order to make his decision.

The second order came Tuesday, when Judge Dreyer detailed specifically what should be produced by the state. Prior to making his ruling, he reviewed more than 11,000 documents that involved state employee e-mails, some from Daniels, as well as many more relating to the IBM contract and system. He wrote that more than half of the substantive materials involving e-mail strings are non-deliberative and include procedural manuals, public articles, charts and data graphs, and technical materials; and that some of the e-mails are more informative and functional rather than deliberative.

The items determined not to be deliberative will be turned over to IBM, but they will not be available for public review. That order may be appealed, in conjunction with the legal analysis outlined in the Feb. 5 ruling.

No ruling has been issued about whether Daniels and Goode will have to participate in depositions.


 

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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