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Judge: Governor can be deposed

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Indiana Gov. Mitch Daniels shouldn’t be excused from appearing for a deposition in a lawsuit challenging the cancelled multi-million dollar contract with IBM to modernize the state’s welfare system, according to Marion Superior Judge David Dreyer.

The trial judge issued a ruling Thursday that held neither state statute, court precedent or public policy warrants Daniels being excused from having to appear to discuss his decision-making and knowledge of the now-cancelled, 10-year contract worth $1.37 billion.

“The effect and consequences of not allowing the deposition are simply untenable,” Dreyer wrote. “Under such an interpretation, the Statute is at best unwise when so much public money depends upon the outcome. But lack of wisdom is not grounds to depose a governor.”

This is the latest ruling in the consolidated suit and countersuit of State v. International Business Machines Corp. and IBM v. State, No. 49D10-1005-PL-021451, centering on the cancelled contract between the state and IBM for the modernization of the state’s welfare system. The state sued last year trying to recoup hundreds of millions of dollars it had paid IBM before cancelling the contract in 2009. The computer giant countersued on breach of contract allegations and argued the state still owes about $100 million.

Dreyer had earlier this year ruled the state must turn over thousands of pages of documents, including emails from the governor and other state officials, relating to that cancelled contract. The state decided not to immediately appeal that ruling about “deliberative” documents and privilege, and the judge held a hearing in April about whether the governor and chief of staff, Earl A. Goode, must appear for depositions.

The state argued that Daniels delegates day-to-day management of the governor’s office and doesn’t have any “unique substantial knowledge” of that contract, while IBM argued that Daniels took this on as a pet project and his depositions are needed.

Dreyer initially ruled Daniels didn’t have to testify about his involvement, based on evidence he had reviewed at the time, and that no exception in state statute warranted his testimony.

But after further review and consideration, Dreyer found that Indiana Code 34-29-2-1 is open to multiple interpretations. Only one reported case, Government Supplies Consolidating Servs., Inc. v. Bayh, 753 F. Supp. 739 (S.D. Ind. 1993), addresses the issue, but it focuses on federal privilege law and not the state statute.

The ruling this week is narrow and isn’t meant to apply in all situations or create any lasting exception to the state statute, Dreyer wrote.

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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