Importance

April 23, 2004

A New Pentagon Papers Case - Newspapers, Blogs and the Diebold/Jones Day Memos

On April 20th, the Oakland Tribune published a story regarding Diebold's alleged use of uncertified voting software in violation of California state law (Diebold knew of legal risks). The article cited and focused on internal legal memos from the Jones Day law firm showing that Diebold's own lawyers had warned of some of the possible illegalities. Online, the Oakland Tribune posted the documents in addition to the article. That afternoon, the Trib's parent company and the reporter were sued by Jones Day to have the documents returned. The judge ordered the documents returned, except for those already published on the internet (Judge: Tribune must turn over legal memos):

Jones Day's lawsuit claimed the documents were protected under California law as attorney-client communications and attorney work product, and that the defendants "improperly, and possibly illegally, secured, maintained possession of and refused to return" the documents despite the firm's demands.

Read on...

UPDATE More memos here: The inside story on California Diebold decertification -- Next: Ohio?

Posted by Ernest at 8:27 PM

And what sort of relief was Jones Day asking for?

"They asked for an order directing the defendants to return all copies of what they're calling protected documents in whatever form they exist, and all notes, summaries, digests and other recordings of the documents," said Jean-Paul Jassy, the attorney representing MediaNews Group and Hoffman.
"They were also asking for a restraining order preventing any further use of the documents for any purpose ... but about halfway through the hearing they said they were no longer asking for that second point."

That last point, which Jones Day apparently dropped, is known as a prior restraint and is severely frowned upon by the First Amendment - something the judge apparently understood. However, the paper was required to turn over everything they possessed:

In a three-hour hearing Tuesday evening, [Los Angeles Superior Court Judge Dzintra] Janavs said she wouldn't prevent future stories from being written about the documents. In a one-page, handwritten order, she directed the defendants to turn over to her "all copies of Jones Day documents marked 'attorney work product, privileged and confidential' whether on Jones Day letterhead or not, forthwith."

The order to turn over the documents is being appealed and I certainly hope they succeed. Unless there has been criminal action by the reporter to obtain the documents (and even then one should only sue on the illegal action), newspapers must be free to report on such documents when they come to light. If a newspaper can publish the Pentagon Papers, I don't see why a newspaper can't publish some legal memos regarding our voting system.

However, there was a major exception to the order:

"This order does not apply to replicas of such documents already published on defendants' website," the judge concluded.

Bravo judge! The cat's out of the bag ... why should Jones Day get to stuff it back in when the Pentagon couldn't?

Of course, one might note that bloggers would have been much more likely to publish a story based on the memos and publish all the memos simultaneously. There would be nothing left to return to Jones Day under the judge's order; it all would have been published on the internet. By trying to maintain an exclusive, the newspaper has created the possibility that the documents will be suppressed.

The documents that were published on the internet are:

ACTION AND BUDGET ESTIMATES: TWO MONTH PLAN [PDF]

Comprehensive Position Paper: This would be a synthesis of the above analysis plus additional factual and legal development. This would be the basis for white papers, responding to subsequent developments, persuading prosecuting authorities not to bring criminal charges, defending the False Claim Case, reports to board, press releases, governmental and media inquiries and filings. This is recommended given the exposure but is a decision for the client. [emphasis added]
Summary for Two Month Estimate: $535,000 -$925,000

My summary: Money on lawyers is apparently money better spent then money spent on fixing the actual problems.

DIEBOLD ELECTION SYSTEMS Re: Alameda County Agreement [PDF]

This is a great 10-page document:

This memorandum briefly discusses the applicable California law regarding certification of voting systems and identifies provisions of the Agreement that Alameda County might contend were breached if it was provided with an uncertified voting system. This memorandum does not analyze potential defenses or counter arguments that can be made by Diebold ( e.g., the Secretary of State's failure to establish or enforce specific regulations requiring certification of new versions, etc.). Instead, the memorandum focuses on the potential arguments that might be made by Alameda County.

Here is a sample:

A. Issue: Whether the use of an uncertified voting system is illegal? Short Answer: Yes. All voting systems must be approved by the Secretary of State before use in any election. See Cal. Elec. Code 19201.
B. Issue: Whether Diebold breached the Agreement if it provided Alameda County with an uncertified voting system? Short Answer: Most likely. If Diebold provided Alameda County with an uncertified voting system that was used in an election, then Diebold most likely breached provisions of the Agreement requiring Diebold to comply with all applicable laws. [emphasis in original]

DIEBOLD ELECTION SYSTEMS, INC. Re: Issues Regarding California Secretary of State Investigation [PDF]

This document has a more detailed analysis of issues specific to the California Secretary of State:

A. Issue: Whether the California Secretary of State can issue a conditional certification of a voting system ( or, of a modified version of a voting system that was previously certified)? Short Answer: Probably not. The Secretary of State Procedures for certifying voting systems ("SSP") permit conditional certification, but if the SSP are invalid and without legal effect, the Secretary of State must rely on the California Elections Code, which does not contain any provision allowing for conditional certification. The California Elections Code contains explicit procedures for examining and certifying voting systems. The Secretary of State must examine every voting system submitted by vendors without undue delay and issue a report within 30 days after the examination stating whether the voting system is accurate and efficient and can safely be used in elections. See Cal. Elec. Code 19202 & 19207. If the Secretary of State's "report states that the voting system can be used, it shall be deemed approved by the Secretary of State and machines or devices of its kind may be adopted for use at elections." Cal. Elec. Code 19208. [emphasis in original, footnotes omitted]

DIEBOLD ELECTION SYSTEMS, INC. Re: Supplement to 11/24/2003 Memorandum Analyzing the Alameda County Agreement [PDF]

More good stuff:

A. Issue: Whether a California State approved voting system may be modified for experimental use without the Secretary of State's approval? Short Answer: Probably not. The California Elections Code provision allowing for experimental use of a voting system in an election without Secretary of State certification most likely only applies to new and uncertified voting systems. See Cal. Elec. Code 19211. Once a voting system has been approved by the Secretary of State, any change or modification to the system must be approved by the Secretary of State before it may be used in an election. See 19213.3 [footnotes omitted, emphasis in original]

This time the discussion includes some of Diebold's potential counter arguments:

DESI may, however, argue that it did not need to obtain approval from the Secretary of State for its changed or modified voting system if the system is considered a new voting system. DESI's argument would be that the change was not a modification of an approved system, but instead was a completely new system. A "system" includes any combination of any mechanical, electromechanical, or electronic system and its software. See 363. Under this broad definition, even a change to part of voting system may constitute a new system under certain circumstances. Still, DESI would probably need the local governing board to affirm that its use of DESI's new or changed system was for experimental use. [footnotes omitted, emphasis in original]
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Trusted Computing/DMCA v. Diebold's Pentagon Papers

Excerpt: Ernie breaks a great story about Jones Day suing the Oakland Tribune to take back the memos they wrote about Diebold's risky ventures in California over uncertified e-voting machines. While Jones Day chose to use legal tools to restrain news...

Read the rest...

Trackback from Copyfight, Apr 23, 2004 11:47 PM
Trusted Computing

Excerpt: [quote:] Ernie breaks a great story about Jones Day suing the Oakland Tribune to take back the memos they wrote about Diebold's risky ventures in California over uncertified e-voting machines. While Jones Day chose to use legal tools to restrain...

Read the rest...

Trackback from The Daily Irrelevant, Apr 24, 2004 10:47 AM

Compare this silliness with the death of war hero Pat Tillman. Bunch of jerks!

Posted by Ricky Vandal on April 24, 2004 08:55 PM | Permalink to Comment

Now, now, that a blogger is more likely to see reputation-points from publishing all the memos, than stories based on the memos, is just saying they're very low down on the totem-pole of journalism, so they have little hope of exploiting a windfall in the way the big guns can do.

That's another way of looking at it :-)

Posted by Seth Finkelstein on April 25, 2004 04:08 AM | Permalink to Comment

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