IBM litigation explores executive privilege issue

Back to TopCommentsE-mailPrintBookmark and Share

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.



Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.