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Judge: Governor doesn't have to testify in IBM case

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Marion Superior Judge David Dreyer has ruled that Indiana Gov. Mitch Daniels doesn’t have to testify about his involvement in the cancelled multi-million dollar IBM contract to modernize the state’s welfare system.

In a three-page order Tuesday, the trial judge determined that current evidence in the case doesn’t allow him to determine at this time whether the governor falls under any purported exception in state statute calling for his testimony. As a result, ordering his deposition is precluded until at least the time the parties determine whether that need exists, the judge determined under Indiana Code 34-29-2-1(6).

“On one hand, the statute above clearly precludes a deposition of a sitting governor,” Judge Dreyer wrote. “On the other hand, an exception might be established since it is reasonable to expect any chief executive to have unique personal first-hand knowledge or experience in the management of a project of such magnitude as this IBM contract.”

That law says that discovery is possible if the governor’s testimony isn’t available from another source or if he had first-hand knowledge that can’t be reasonably obtained elsewhere in some less burdensome way, and that it would not significantly interfere with those office’s duties.

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 argues that Daniels took this on as a pet project and his depositions are needed.

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 10-year, $1.37 billion contract for the welfare system. The state sued last year trying to recoup hundreds of millions of dollars it paid the company before cancelling the contract in 2009, and the computer giant countersued on breach of contract allegations and argued the state still owes about $100 million.

Judge Dreyer previously ruled that 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 April 18 to delve into whether the governor and his chief of staff, Earl A. Goode, must appear for depositions.

In granting the state’s motion for protective order against Daniels’ testimony, this ruling means the governor is not required to testify at this time but that Goode isn’t privileged from subpoenas to testify.

Indianapolis attorney Andrew Hull issued a statement on behalf of his client, IBM, in response to the ruling.

“We are pleased that we will be able to question Earl Goode, the governor's top aide, who – presumably acting on behalf of the governor – was deeply involved in the project. But it is unfortunate that we will not be able to question Governor Daniels under oath at this time since he was personally involved from the earliest days of this project and was hands-on concerning project management – even praising IBM's efforts. Governor Daniels repeatedly has pledged transparency in government. The question remains concerning this project: ‘What is he trying to hide?’ We hope to eventually ask that question of Governor Daniels directly.”

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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