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State won't immediately appeal IBM 'deliberative processes' ruling

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At least for now, the Indiana Court of Appeals isn’t being asked to consider a Marion County judge’s decision that held a “deliberative process” privilege exists in Indiana.

That means the state will be turning over thousands of documents, including e-mails from the governor and other state officials, relating to a cancelled $1.37 billion welfare system contract.

Released earlier this week, a notice filed Friday by attorneys representing the state notified the Marion Superior Court that they wouldn’t be initiating an interlocutory appeal in the consolidated case of State v. International Business Machines Corp. and IBM v. State, No. 49D10-1005-PL-021451, centering on the cancellation of IBM's contract to modernize the state's welfare system. The state sued last year trying to recoup hundreds of millions of dollars it had 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.

But a discovery question about what documents should be turned over became controversial, and the state asserted a “deliberative process” executive process shielding the documents from release. Judge David Dreyer ruled in February the privilege exists but it didn’t apply to many documents in this case. After a private review of more than 11,000 documents, the judge decided March 22 what documents must be turned over. The list included state employee e-mails and some from Gov. Mitch Daniels. The documents are to be released only to IBM and not be available for public review.

With the latest notice, the company’s attorney Andrew Hull says the documents and e-mails are already being turned over to IBM. The state will not exercise its immediate right to ask for an interlocutory appeal on this issue. But this doesn’t stop attorneys from ultimately appealing any final judgment from Judge Dreyer and raising these or other issues that may come up.

One of those issues could be a yet unresolved question about whether the governor and his chief of staff must participate in depositions. The state argues the two shouldn’t have to appear and has requested a protective order to stop this from happening, while IBM contends both were intimately involved with the project and should be transparent in revealing those details.

A hearing on that issue is set for April 18, while a hearing is set for other pending matters the following day.
 

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