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Beetem takes Confide lawsuit under advisement


JEFFERSON CITY, Mo. — Cole County Circuit Judge Jon Beetem heard motions in the Confide lawsuit over the use of deceptive communication applications by the administration of former Governor Eric Greitens on Tuesday.

Beetem is considering lifting a stay on the discovery process that could see members of both the Greitens and Parson administration undergo depositions to learn the depths the applications were used to hide and ultimately destroy government records. He is also weighing on whether or not to move forward on a motion for summary judgment.

The lawsuit alleges that in his official capacity as governor, Greitens and his staff violated Missouri’s open records and retention laws by using a message-destroying app to conduct state business. The lawsuit also alleges that the Greitens administration did not properly respond to Sunshine requests.

The crux of the arguments were while members of the Greitens administration may have violated the sunshine law by not maintaining and providing records of their communications, the proof of those communications has been destroyed.

While the destruction of those records would be illegal, former Cole County Prosecutor Mark Richardson refused to file any charges related to the Greitens administration.

Beetem has previously ruled that even if the Greitens administration did not properly keep records, Missouri’s records-retention statute does not allow for civil relief.

Since then, an expert has determined that no copy of the Confide messages were retained on cell phones and Confide has said they don’t retain any copies either. That essentially details that no records exist of any messages sent through the application — a key piece to two of the eight counts alleged in the lawsuit.

The other six counts are not dependent on a recording of the message existing, according to Pedroli.

During the hearing, Pedroli alleged that Missouri’s Chief Operating Officer uninstalled and reinstalled, within days, an message destroying application in mid-2018.

That download on COO Drew Erdmann’s state-issued phone was one month into the tenure of Gov. Mike Parson and just days after the application was removed from the state-issued phone.

Erdmann, who was hired by former-Gov. Eric Greitens, originally had Silent Phone installed on his state-issued phone for security reasons during an overseas trip in 2017 and had the application until June 30, 2018.

Following an email exchange with the Custodian of Records, he reinstalled Silent Phone in July 2, 2018. The Kansas City Star reported that Erdmann deleted the application in January 2019.

Silent Phone is an application that enables end-to-end encrypted communications that are completely erased after anywhere from one minute to 90 days — depending on user settings.

“In 2017, based upon the recommendation of the Missouri State Highway Patrol and the Office of Administration, the State IT department installed the Silent Phone app on my official state phone. The app was strictly used as a security measure and pertained only to situations when safety and security necessitated within the Governor’s Office related to overseas travel (e.g. China, Middle East) or during domestic security events (e.g., aftermath of Stockley Verdict). The last time I recall using the app was in November 2017 while traveling for official business to the Middle East,” said Erdmann.

“The app was also utilized by the Governor’s Security Division during a trip to China and Middle East. The app provided a hardened communication platform that prevented the information from being intercepted or hacked,” stated Captain John J. Hotz, spokesman for the Missouri State Highway Patrol.

Erdmann reinstalling the application a month after he uninstalled was revealed in an open records lawsuit originally filed against Greitens in December 2017.

In June 2019, attorney Mark Pedroli submitted a screenshot of a text message he believed proves state business was conducted on Confide, a message-destroying application.

“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.

It is in the hand of Beetem on how and if the lawsuit moves forward. The defendants in the lawsuit are asking for summary judgment while the plaintiffs are asking for a continuation to collect evidence.

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