Leaked Diebold Memos Triggers Suit Against Newspaper

[Joanne98]

** LEAKED DIEBOLD MEMO TRIGGERS SUIT AGAINST NEWSPAPER
The electronic voting machines produced by Diebold Systems Inc. have been a lightning rod in the field of electoral law. Now the controversial machines have sparked problems at 2,200-lawyer Jones Day after confidential documents written by the firm's attorneys were leaked to the Oakland Tribune.
(New York Lawyer)
http://www.nylawyer.com/news/04/04/042604j.html

I hope I did this right. If it's not LBN then lock please.

[NashVegas]

1. You Did Great

So much fun to watch the weasels, isn't it?

[Joanne98]

2. Yeah and this is going to be a really interesting lawsuit.

:)

[hunter]

3. Let's see now...

Wally O'Dell decided to stop sending cease-and-desist letters because of the bad press that Diebold received in response to the letters.

I expect this will end the same way.

[AP]

4. This is the same argument Diebold used against the web sites.

Attorney client privilege doesn't cover this sort of thing, AFICT.

Once someone divulges something private to a third party with no relationship to the first party (whether contractual or professional) that information becomes public. You can't put the genie back in the bottle. The information is no longer confidential.

AC privilege prevents lawyers from being COMPELLED to divulge information. But, if they do so accidentally, there's nothing they can do about it to get revenge against the paper for publishing the information.

And if an employee divulges the information, tough shit. Sue your employee for violating their employment contract, or bring criminal charges against your employee. But theres nothing you can do to the person to whom your employee gave the information.

However, what happened probably isn't even 'theft' or any other crime. Publishing these letters doesn't violate a property right (not even copyright). If the employee photocopied the letters at the office, you could make an argument that they stole the copy paper, maybe. But I've never heard of an employee prosecuted for stealing paper clips, so I don't think they're going to get prosecuted for stealing photocopier paper.

In fact, if anything, I bet there a whistleblower statutes which might protect the person who leaked the memo.

[Joanne98]

5. I was hoping this person gets whistleblower status.

It's our democracy for christs sake.

[Gothmog]

6. Cool lawsuit

Jones Day is a good firm and this is going to be an interesting lawsuit. Normally the attorney client privilege is given a great deal of deference by the courts but there are public policy considerations to weigh.

[AP]

8. AC privilege is given deference BEFORE information is leaked.

AC privilege is NEVER given deference AFTER information is leaked, regardless of how it was leaked.

I don't think AC privilege has EVER been used vs a third party not a party to law suit to get them sanctioned by the court, and, furthermore, I don't think it has ever been used to keep information out of the courtroom AFTER the information has been disclosed no matter how it's disclosed.

There are millions of stories about lawyers leaving files on tables or secretaries who accidentally send the wrong letter to the wrong person, and that's just tough shit for the lawyer and the client.

The client can sue the lawyer for malpractice, or the lawyer can fire the employee who made the mistake, but the client or the lawyer cannot get the document back, or punish the person who received the document, or keep the document out of court.

I think all the privieleges basically prevent people from being compelled to disclose information (and give you rights against a person with whom you have a contractual or professional relationship if they do violate confidence), but none of them allows you to do anything to third parties who receive information accidentally or intentionally.

If you don't have a professional relationship with someone, you can't punish them for your mistakes (or the mistakes of your agents). And the court doesn't respect your mistakes. If they did, there'd be no need for measures to protect confidentiality. You'd just go around suing people and making motions to the court to get people not to say and know what they know.

[Timefortruth]

24. Do you think a complaint against the lawyer(s) involved

regarding the unethical behavior disclosed in the memos would go anywhere at the State Bar?

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x511005#520439

[BevHarris]

22. Well, what I have seen of Jones Day is unimpressive

Dan McMillan: swaggering yuppie corporate bully
Can't remember the name of the lawyer who handled the Voter Panel hearing last week, but he was a faltering, parsing, squirming fellow who caused the spectators to roll their eyes and grimace. "Sometimes works in corporate law," confided my lawyer, "but that guy should never set foot in front of a jury."

[Timefortruth]

25. Those huge fees buy hundreds of people to attend to every detail.

The partners get the big bucks and the folks at the bottom aren't paid better than clerical workers anywhere. In the middle are the wannabes, associates who hope some day they will be on the top rung: partner. They suffer for years working up-wards of 70 hours a week in pursuit of that goal while running the very real risk that they will be let go.

All these people are employed to make sure nothing goes unnoticed or unanticipated, in this case it led to a leak. Oh well.

[Junkdrawer]

7. The people who dismiss this as a "Conspiracy Theory" are half right...

They're wrong when they dismiss it as a conspiracy, but they're right about the conspiracy part.

They say: "Have you ever tried to keep anything known by more that a few people secret?" I would reply: "Do you know how dangerous it is for an insider to talk?"

Well, now it looks like the insiders are talking. And it's a high-wire act: if the whistle blowers succeed, they're heroes and heroines. But if they fail.......

[AP]

9. That's the untold story here.

It looks like some Jones Day employee was so shocked by what they saw, their conscience drove them to leak the information.

It's interesting that they chose the Oakland Tribune.

Presumably, this was a smart, well-educated person who did this, and they didn't trust the Chronicle, Mercury, or Tribune to treat this story right.

Or maybe they just knew someone who knew someone at the Tribune.

[Joanne98]

10. kick

[Junkdrawer]

11. And again

:kick:

[Just Me]

12. Fascinating stuff!!!

Too little, too late for Jones Day to sue, now. They assert the documents were "stolen property". The paper obviously did not "steal" the info but rather a Jones Day employee apparently passed on the info. Wish I could see the whole story. Hope I get to read about further developments.

[AP]

15. The LA judge ordered the paper to return anything not already

published.

[Failure]

13. I've been inside O'Dell's house...ask me anything...

go.

[AP]

14. Cat burglar? Invited guest?

What's he like?

[Failure]

19. He's like a billionaire Frat Boy...loud, obnoxious, rude...

11000 Square Foot house in Upper Arlington.

[MGKrebs]

16. How recently? Did you get a peek inside

the medicine cabinet? What kind of prescriptions does he have going right about now? :-)

[Failure]

20. It was this time last year...

I played a fundraiser for a non-political charity at his house. Didn't make it to the medicine cabinet, some fat pig was in there munching on Oxycontin...he Rushed outta there quick.

[Toucano]

17. Kick

:kick:

[jdj]

18. Maybe the paper needs to get Kucinich to post them.

That backed them off of Bev Harris.

[BevHarris]

21. Where you been? Andy Stephenson posted them

Then Scoop New Zealand posted them.

Scroll down for links to selected Diebold lawyer memos:
http://www.scoop.co.nz/mason/stories/HL0404/S00199.htm

Having reviewed the full set of Diebold lawyer memos, including those not made public, I can report that these memos reveal a picture that brings Diebold fully to the level of malfeasance of Enron.

Diebold law firm Jones Day has sued the Oakland Tribune seeking return of leaked memos written by its lawyers. The lawsuit appears to pit the principle of attorney-client privilege against protections against forcing the media to reveal the sources.

But the issue may be simpler than it appears. In a case of legal malpractice, the documents aren't protectable anyway (and according to AP, aren't protectable under AC privilege after they are leaked) -- and in this case, the whistleblower had the right to blow that whistle. The memos from Diebold's lawyers contain material lies in drafts for responses to a series of 10 questions posed by the secretary of state and the voting panel.

When I saw the leaked memos, I wondered whether the lawyers were lying to the secretary of state because Diebold misled them or whether it was their decision to tell the lie. If it was their decision, it constitutes malpractice.

Then, Wednesday at the Voter Panel hearing, the attorney from Jones Day stepped up to testify that it was HIS IDEA to write the information in the way they did. Of course he claimed it was not a lie, but parsed it in such a way that one had to do mental gymnastics in order to follow his argument.

Lawyers can parse, spin, and reframe without violating the law. But what Jones Day did went further than that.

It was in response to the Diebold lawyer that that the panel made the comment to the lawyer and to Urosevich: "So you are either misleading us or lying, which is it?"

If a lawyer participates in deliberate lying on formal interogatories, his work cannot be protected as attorney-client privilege. More on what makes the Diebold lawyer lies not protectable below.

A problematic area for the Diebold lawyers is the part of the lawyer memos where, when they are discussing what to produce in response to a demand to produce documents, they make the comment "We have to find out what the secretary of state has." Immediately afterward they write something to this effect: "We want to minimize what we produce."

But their production must be based on what they have, not on what the Secretary of State has. It appears that they were trying to figure out whether they'd get caught if they omitted stuff or lied.

It turns out they did get caught. This became a material issue, because the worst of the misleading, or lying, had to do with whether Diebold uses customized software for its votercard encoder (it does use customized software, but the lawyers written response to the secretary of state said it doesn't). In the lawyer memos:

- The lawyers were wondering which documents from the Diebold FTP site the Secretary of State has -- that's relevant because on that FTP site was proof that Diebold does indeed customize its votercard software. They seem to want to know whether the Secretary of State has that info before they tell him that the votercard stuff is NOT modified (which is what they said).

- At the core of the issue is whether Diebold had to certify its votercard encoder software (yes, if customized; no, if off-the-shelf).

- Diebold never certified it (an illegal procedure, if the votercard software is customized)

- When the lawyers responded that Diebold used off-the-shelf stuff that was never modified, therefore it didn't need to be certified, this was a lie.

- The documents on the FTP site, and James Dunn's testimony (which the lawyers didn't know was coming) proved that Diebold did customize the votercard software and therefore, should have certified it.

- This was a significant and material lie, because it is exactly this votercard software that failed on March 2, (in 40% of the San Diego locations and in nearly 30% of Alameda County locations) causing many voters to be disenfranchised.

The attorneys also submitted lies about inability to obtain source code. Diebold claims it has ISO 9000 status, a quality control label of sorts. Indeed, Diebold represented to certifier Wyle Laboratories that its TSx system followed ISO 9000 standards. Yet the lawyers wrote, when asked by the secretary of state to produce the source code for the TSx, that it might take many months -- up to SIX MONTHS, in fact -- for Diebold to collect together its source code. This would be a specific violation of ISO 9000 standards, and has led some citizens to call for ISO 9000 decertification of Diebold.

Either Diebold is not ISO 9000 compliant (but they represented that it is) or it is ISO 9000 compliant, but the lawyers were lying about Diebold's ability to lay its hands on its own source code.

Yes, it appears that the lawyers participated in material lies which caused real harm, and that they did so with intent. And this will ultimately make it impossible for them to protect their documents.

Bev Harris
Now go take back your vote: http://www.blackboxvoting.org
Contact info: Bev Harris
330 SW 43rd St PMB K-547
Renton WA 98055
[e-mail]
This is the correct Amazon address for book purchase: http://www.amazon.com/exec/obidos/asin/1890916900

[Timefortruth]

23. If a lawyer recommends his client lie about a material fact

or if he misrepresents a material fact, there is a clear breach of ethical standards which can (and should) be reported to the State Bar of California. In many states anyone can file a complaint, but then I know nothing about California law. Remember this is another forum where the right attacked Clinton, and for the most part won.

Jones Day attorneys live in a world of unbelievable privilege where no rule applies to them. Many of them have lived this way their entire lives. Simply having Jones Day represent a client will scare many an opponent into settling.

It sounds like there is ample evidence to support a complaint. At very least it will let them know that they don't scare you, and at best it would mean that one less unethical lawyer will be able to practice law (at least for a while).

Since I'm not a resident of California I wouldn't have standing, but if anyone's interested contact:
Judy Johnson
State Bar of California
Office of the Chief Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
Phone: [phone]
Fax: [phone]
Filing Method: Submit a detailed letter to State Bar or call 800-843-9053 in
California

Contact the State Bar and find out the details of what is required in a complaint. Please make this complaint as professional as possible, it will increase the chance that it will be taken seriously enormously.


Edited for typos.