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Confide hearing scheduled June 19

Confide hearing scheduled June 19

June 8th, 2018 by Bob Watson in Missouri News

Eric Greitens no longer is governor.

But the use of Confide by Greitens and his staff remains a court battle over allegations the former governor's administration violated Missouri's Sunshine and open records laws when they used the smartphone application that erases messages as soon as they're read.

And the parties will be back in court for a formal hearing June 19, Cole County Circuit Judge Jon Beetem said after a telephone conference call Wednesday morning.

That hearing mainly will discuss lawyer Mark Pedroli's motion to "compel" Greitens and Michelle Hallford — the Office of Administration's custodian of records under the state's Sunshine Law — to answer discovery requests submitted last month.

Pedroli filed the original lawsuit last December, then updated it last month, on behalf of Ben Sansone and a group called The Sunshine Project.

With Greitens' planned resignation at 5 p.m. last Friday, Beetem last week ordered "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 said 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.

In a written opposition to Pedroli's motion to compel, filed Tuesday — and during Wednesday morning's conference call — Kansas City attorney Robert Thompson said Pedroli should use the information provided last Friday to contact Confide and see what information they can provide.

As he has said in previous hearings, Thompson argued during the phone call: "We can't produce what doesn't exist."

Pedroli told Beetem he would, at some point, seek information from Confide.

But, Thompson said, while Pedroli seeks that information from the application's designers, the court should order both sides to go to mediation.

"Mediation is appropriate here in light of the change in Administration, so that the parties may work out whether this case can be fully resolved in the short term," Barbara Smith, Thompson's colleague, wrote in the opposition filing. "If it cannot be resolved through mediation, (Pedroli) will retain his ability to try and seek additional discovery going forward.

"If this case can be settled in a satisfactory way, it should be."

Beetem told both sides during the telephone call Wednesday morning: "Taking people to mediation who don't want to go hasn't been productive in my experience."

Pedroli told Beetem that Greitens had not verified information provided to the plaintiffs last week, and only the former governor "has knowledge for his own use" of the controversial application.

He also said last week's order had been productive.

"The governor (Greitens) had offered the attorney general (Josh Hawley) the names of eight people" who used the Confide application, Pedroli told Beetem.

"Because of your order (last week), we found 12 more."

If nothing else, he said, that created "a new list of potential witnesses."

But, Thompson countered, Greitens no longer is governor and Pedroli's complaint is about the "office of the governor," not the individual.

And he said Gov. Mike Parson's administration needed to be given time to get up to speed on the lawsuit and its issues.

Pedroli countered: "I don't think it matters who is governor.

"What matters is (compiling) the answers — who used Confide?

"What did they talk about?"

Whether the court will order answers to those questions may be decided June 19.