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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. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

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  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

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