Beetem hears arguments about scheduling more talk in 'Confide' case

This July 11, 2016 photo shows Judge Jon Beetem presiding at the bench during proceedings in Cole County Circuit Court.
This July 11, 2016 photo shows Judge Jon Beetem presiding at the bench during proceedings in Cole County Circuit Court.

Lawyers for former Gov. Eric Greitens want Cole County Circuit Judge Jon Beetem to end the lawsuit over Greitens' and his staff's use of Confide, a smartphone application that erases text messages as soon as they're read.

St. Louis lawyer Mark Pedroli filed the suit in December 2017, on behalf of Ben Sansone and a group called The Sunshine Project, arguing using Confide violated the state's Open Records, or Sunshine Law.

The case has continued, even though Greitens resigned from the governor's office June 1.

In their Dec. 14, 2018, motion for summary judgment, Greitens' attorneys - Barbara Smith, of St. Louis, and Robert Thompson, of Kansas City - argued Pedroli, "after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the (court) to find any violations of the Sunshine Law."

Summary judgment means the court finds that there are no factual issues remaining to be tried, and the weight of the evidence and facts favor the party receiving the summary judgment ruling.

During a 50-minute hearing Tuesday morning, Pedroli argued Greitens' attorneys filed their motion prematurely - because "the court needs to ascertain exactly what type of evidence is likely to exist, as well as the exact nature of the operations of the Confide application."

Last June, Beetem authorized Greitens' lawyers to hire an expert to determine whether messages sent through Confide can be retrieved - and they reported in their summary judgment motion and during Tuesday's hearing that their expert found no way to recover those messages.

His order also allowed Pedroli to hire a separate expert, but Pedroli acknowledged he didn't do that.

In a 21-page "Suggestions In Support" of their summary judgment motion, Greitens' attorneys wrote: "Additional discovery from an expert and from Confide itself has now established that no other records can be recovered by anyone on any method. Because the uncontroverted evidence now clearly establishes that the lawsuit's request for relief cannot be granted - because the messages sent or received over Confide cannot be recovered and therefore cannot be produced - summary judgment is appropriate."

But, Pedroli told Beetem on Tuesday, there appears to be evidence the governor's office used other apps in addition to Confide - and depositions are needed to determine if that's true.

"It's a case about burner apps (and) preventing the use of burner apps in government that do not retain communications (as required by) the Sunshine Law," he argued. "Period. Full stop.

"What I'm asking you is to allow me to go to other third parties, (and there) is a chance that some of these messages were preserved."

While Pedroli argued Greitens' lawyers didn't follow the procedures Beetem ordered last June, Smith countered Pedroli didn't follow the procedures - waiting until the last minute to ask for a continuance so he could take more depositions instead of responding to the arguments in the summary judgment motion.

"Setting aside the bombastic and baseless" arguments Pedroli made in court Tuesday morning, she said, "We filed for summary judgment (and) we're entitled to a hearing on summary judgment."

Smith said the Sunshine Law provides for the production of documents - if they exist - but doesn't allow Pedroli to "depose everyone who may have sent or received documents to try and recreate their contents."

If Pedroli wants the law to allow those depositions, she added, he should get the Legislature to change the law - not ask the court to do it.

Beetem said he'd take the case under advisement, and determine whether more depositions should be allowed, or the parties should go directly to the summary judgment motion.

He didn't say when that ruling might be released.