ILNews

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.


 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I will be filing a lawsuit in Tippecanoe County for so many violations in a case we became involved in, including failure to contact through mail, Violation of 4th Amendment rights, Violation of Civil Rights, and so on. Even the Indiana Ombudsmen Bureau found violations and I have now received the report and they are demanding further training in Tippecanoe County. I am going to make sure they follow through!!!

  2. ?????????? ???? ?????? ??? ?????? ???????! ??????? ??? ??? ?? ???????? ???? ?????? ????????? ??? ??????? ????? ??????? ? ????? ?? ??????, ?? ???????, ?? ???????, ?? ??????, ?? ???? ? ?? ????? ??????? ??? ????? ??????. ???? ???????? ????????????? ??? ??????? ?????? - ??? ?? ????? ?????? ????????. ???????? ????? ????? ???????, ?????????? ????????? ????????, ????????? >>>> ?????? ????? http://xurl.es/PR0DAWEZ

  3. I thought the purpose of the criminal justice center was to consolidate all the criminal services and get them out of downtown to clean up the place. Why in the HELL are the civil courts moving? What a burden to all the downtown law firms. Now we all get to work downtown, but then have to get in a car and COMMUTE to court? Who approved this idiocy?

  4. I drive through the neighborhood whenever I go to the City-County Building or the Federal Courthouse. The surrounding streets are all two way with only two lanes of traffic, and traffic is very slow during rush hour. I hope that enough money has been allocated to allow for improvement of the surrounding streets.

  5. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

ADVERTISEMENT