Judge limits scope of discovery to existence of records
JEFFERSON CITY, Mo. — During a hearing in the Confide lawsuit against the governor’s office, Mark Pedroli represented evidence he says proves that they used the message destroying app to conduct state business.
Cole County Circuit Court Judge Jon Beetem also limited discovery in the Sunshine lawsuit to whether or not the records exist for the time being. He instructed the attorney’s for the governor’s office, Barbara Smith and Robert Thompson, to draft the order. Pedroli, attorney for Ben Sansone who filed the lawsuit on behalf of the Sunshine Project, will be able to provide comments the order.
The lawsuit alleges that in his official capacity, then-Gov. Eric Greitens and his staff violated Missouri’s open records and retention laws by using a message-destroying app to conduct state business. The hearing held Tuesday morning was to discuss Pedroli’s motion to compel.
Pedroli was seeking to force the defense to answer what he calls “basic” questions into the governor’s office use of Confide. The hearing lasted nearly hour, ending when Beetem limited further discover to the existence of the records for the immediate future.
Before they got into the details of the motion to compel, Pedroli handed Beetem and the defense pictures of a text-message screenshot he says proves that Confide was used to conduct state business.
“Haha nice! Also, I can’t see your edits very well on confide,” reads a text message from a person identified as Brad Green. In response, a picture of a draft copy of “PDMP – Talking Points” was sent.
During the hearing, the attorneys for the governor argued that if text messages sent using Confide are automatically deleted, then the governor’s office can’t retain them and thus isn’t violating Missouri’s open records law by failing to make them public.
“The Sunshine Law is designed to allow access to documents that exist,” Smith said.
Pedroli argued that knowingly destroying public records violates the state’s open records law and records retention law.
“When you send a message over Confide, you’re destroying the original message,” Pedroli said. “The defendants are saying, ‘If we destroy it, that’s it. That’s the end of the road.’ ”
He theorized if that is the “dangerous” precedent set then government officials will be motivated to use Confide, effectively destroying records because of a lack of consequences.
Beetem also limited the scope of any communications or use of Confide to Greitens tenure as governor and not before. Limiting questions to Greitens inauguration and thereafter makes any communications during the transition period, where Greitens was governor-elect, out-of-scope for the lawsuit.
Alisha Shurr is a reporter for the Missouri Times and Missouri Times Magazine. She joined the Missouri Times in January 2018 after working as a copy editor for her hometown newspaper in Southern Oregon. Alisha is a graduate of Kansas State University. Contact Alisha at email@example.com.