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Judge sets limits on Confide evidence

Judge sets limits on Confide evidence

June 20th, 2018 by Bob Watson in Local News

Attorney Mark Pedroli argues Tuesday, June 20, 2018 that Confide servers may still house text messages sent between former Gov. Eric Greitens and his staff. Also pictured in Judge Jon Beetem's Cole County Circuit Court room is Barbara Smith and Robert Thompson, center, who represent the Office of the Governor and custodian of records.

Photo by Julie Smith /News Tribune.

St. Louis attorney Mark Pedroli can't get information about former Gov. Eric Greitens' use of the Confide message-erasing smartphone application from the time before Greitens took office, Cole County Circuit Judge Jon Beetem said Tuesday during a 50-minute hearing.

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The limits will be part of a protective order Greitens' attorneys — Robert Thompson, of Kansas City, and Barbara Ann Smith, of Washington, D.C. — had asked for.

Beetem told the attorneys to draft their order — and Pedroli will have a chance to comment on it and suggest changes — before Beetem issues the formal order, likely either late this week or sometime next week.

As part of his motion to compel more information from Greitens and his employees, Pedroli told Beetem: "This isn't an argument about the admissibility of evidence.

"What I am saying is that the use of Confide before someone became governor can highlight and demonstrate how it was used before and how it was used after — it goes to credibility (and) a lot of important issues."

He said Beetem should give him "latitude to be able to ask how the use of Confide changed" in the governor's office operations.

But, Beetem said: "I understand the argument you're trying to make — I'm just not sure you can make that in a (Sunshine Law) enforcement."

He said Greitens wasn't covered by the state's Sunshine Law until Jan. 9, 2017 — the day he was inaugurated as governor.

Pedroli sued the governor and the state's records custodian last December, arguing Greitens' and his staff's use of the app violated the state's Sunshine and open records laws.

Pedroli represents another St. Louis attorney, Ben Sansone, and a group called the Sunshine Project.

But Greitens' attorneys have argued the Sunshine Law only applies to records available and doesn't apply where the records were not kept.

Tuesday's hearing was scheduled on Pedroli's motion to compel Greitens and others to provide more answers to his clients' requests for discovery.

"Since your last order and since the last time we saw you here (in court), we have learned that this litigation has been effective in getting to the truth," Pedroli said. "For a long time, we have tried to learn more about the use of Confide in the governor's office, but it has been concealed from me (and) from the attorney general's office."

However, thanks to Beetem's order requiring Greitens' legal team to provide some information by 1 p.m. June 1 — four hours before Greitens resigned from being governor — Pedroli said: "We now know that there were 20 people that were in that office of governor that used Confide — not the eight that were offered to the attorney general."

And that should be enough evidence to support his request for a court order for the Greitens legal team to provide more answers.

"I think it demonstrates the need for an assertive discovery," Pedroli explained. "We have (asked for) discovery since February, March and April — (but) almost all the answers were objections or refusing to answer.

"And I believe we need to get those answers as soon as possible."

"Discovery" is the legal process where lawyers for both sides are required to provide information and documents that are sought by the other side in a case — although the requirements aren't unlimited, and judges like Beetem can wind up in the middle, refereeing debates between the parties about what's appropriate for the discovery and what isn't.

Pedroli gave Beetem documents Tuesday, he said, showed proof governor's office employees used Confide "to conduct public business."

Smith objected, arguing the documents weren't part of Pedroli's motion to compel.

"It seems to me that we have met our obligation to produce documents that are responsive to your discovery requests," she told Pedroli.

Pedroli told Beetem he had asked for the names and other information of the eight governor's office employees who had been identified by Attorney General Josh Hawley's probe into the use of the Confide application.

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"They objected and referred me to a media report," he said.

Smith countered: "I think that indicates that we provided more information than was necessary to respond to his requests."

Later, she told Beetem: "We have provided all the documents that are not privileged" — which means they didn't contain confidential information that only is to be shared between a client and the attorney.

Smith said Pedroli had indicated he would subpoena Confide's owners to see what information the company keeps about messages its application erases — then had appeared to say he wouldn't seek that information.

Beetem told Pedroli: "I only want evidence that they used Confide to conduct public business.

"Go to Confide, or tell me you're not going."

He said he'd decide later whether to order a forensic exam of the state-owned phones that Greitens and his staff used with the Confide app.