The state of Missouri - specifically, the governor's office and its records custodian - should be sanctioned for failing to follow Cole County Circuit Judge Jon Beetem's order last week in the Confide case against Eric Greitens.
That was the motion filed Monday by Mark Pedroli, the St. Louis lawyer who sued then-Gov. Greitens and his staff last December, accusing them of violating state laws when they used the smartphone application that erases messages as soon as they're read.
Kansas City lawyer Robert Thompson - representing Greitens, the governor's office and the Office of Administration employee who serves as the custodian of records - has a chance to respond to Pedroli's motion before Beetem can set a hearing on the request.
Beetem scheduled a conference call for 9 a.m. Wednesday so Thompson, Pedroli and the judge can discuss the next steps in the case.
With Greitens' planned resignation at 5 p.m. last Friday, Beetem last week ordered that "the names of all people who worked for the Office of Governor, at any time during the term of Governor Eric Greitens, including the governor himself, who at any time downloaded and or used Confide" were to be identified to Pedroli by 1 p.m. Friday.
In addition, the judge required the state "to identify the number of phones that downloaded and or used Confide associated with each person identified, the make (and) model of each phone, the mobile number for each corresponding phone and all Confide screen names and or monikers used by each person."
And, Beetem ordered, the state was to tell Pedroli "the identity of the current possessor of the phone for each phone identified."
Pedroli last week told the News Tribune the governor's office provided the names of 21 people who had downloaded and/or used the Confide app - including Greitens, general counsel Lucinda Luetkemeyer, lawyer Todd Scott, spokesman Parker Briden and Policy Director Will Scharf.
But Pedroli said in his motion filed Monday: "The information provided was not affirmed, under oath, pursuant to the Court Order, therefore Defendants are currently in violation of the Order, continuing a long tradition of stonewalling, evasion and partial compliance. Unverified and unaffirmed answers are not compliant and perpetuate delay."
He also argued: "Defendants have long employed delay tactics and refused to answer the most clear and relevant questions about the use of Confide."
Sanctions often are a monetary penalty, and Pedroli asked Beetem to order that any money from sanctions be "directed at funding future discovery in this case, in the interest of the residents of Missouri," including requiring the defendants to pay for:
The costs of any forensic examinations of phones that used Confide.
Witness service fees.
Video deposition costs.
The costs of any special master in the case.
"These sanctions would both punish Defendants for their continued delay tactics while also advancing the interest of the State," Pedroli wrote in his three-page motion. "The people of Missouri - notwithstanding their personal politics - agree they want answers about the use of Confide by the highest elected office in Missouri."
He said ordering sanctions would send "a message to take discovery rules and court orders seriously."
Thompson two months ago had asked Beetem to dismiss the entire lawsuit, arguing during an April 6 hearing that "each and every one of these (12) counts should be dismissed as a matter of law."
He said Pedroli and his clients - Ben Sansone and a group called The Sunshine Project - already had been told "the documents don't exist, were not retained and cannot be produced" and that the governor's office has stopped using the application.
But, Beetem wrote in an April 30 order, that abandonment of the app by the governor's office staff "does not in and of itself moot the issues."
"While the Court would like to take the Defendants at their word, there is no legal reason that they could not reinstate their use of Confide," the judge wrote.