Tuesday, March 22, 2011

Daniels Administration's Attorneys Lose Fight To Exclude Thousands Of Documents From Discovery In Lawsuit Over Failed FSSA Privatization

I can't say that I'm surprised attorneys at Barnes & Thornburg, who are representing FSSA in a lawsuit with IBM over the failed welfare privatization effort despite their obvious conflict of interest in doing so, tried to exclude more than 11,000 documents from discovery under a claim of privilege. Fortunately, Judge David Dreyer wasn't impressed with the claim of privilege after personally reviewing the documents himself. With dollar signs no doubt flashing in his eyes (the state is paying him $475 an hour), Barnes & Thornburg's Peter Rusthoven says the state may appeal Dreyer's ruling. The Star's Carrie Ritchie explains:

A Marion Superior Court judge has ordered Indiana to turn over thousands of documents to help sort out two lawsuits over the state’s cancellation of a welfare modernization contract with IBM.

In an order entered this afternoon, Judge David Dreyer said documents the state claimed were privileged are not and should be turned over to IBM for review. They will not be released publicly.

Attorneys for the state are considering an appeal, which would temporarily stop the suits from moving forward, and will notify the court of their decision within 10 days, said Peter Rusthoven, who’s representing the state.

The documents include state employees’ e-mails, including some belonging to Gov. Mitch Daniels.

Daniels cancelled the 10-year, $1.37 billion contract in 2009 after only three years because of complaints about the automated system.

The state sued IBM in May to take back the $437 million it paid the company.
The most interesting aspect of Ritchie's story is the mention that some of the documents include e-mails authored by Gov. Daniels, who IBM is trying to depose in the matter. Under normal circumstances, it wouldn't be appropriate to insist the governor himself be questioned about an agency contractual dispute due to executive privilege, but a governor typically doesn't get directly involved involved in such matters; rather, he uses intermediaries to carry out his wishes to the extent he risks any involvement to keep his own hands clean. It is remarkable that the governor appears to have taken a more direct role in this matter.

IBM countersued, saying the state still owes the company about $100 million.

Dreyer, who reviewed more than 11,000 pages of documents privately before ruling, said in the order that he excluded “a relatively small number of individual e-mails or pages that are extraneous, personal or obviously unrelated communications.”

He also noted that he tried to be considerate of state employees’ privacy, and that he afforded the governor’s e-mails “particular scrutiny and due regard.”

Attorneys for IBM had criticized the state for trying to shield the documents.

“The state has delayed production of these documents since last fall and we hope we will now receive them promptly,” IBM spokesman Clint Roswell said today.

IBM also is trying to get a deposition from Daniels, and the state has requested a protective order to prevent the company from doing so.
The most outrageous aspect of this litigation is the fact that Barnes & Thornburg is being allowed to represent the state's interests. As I've previously pointed out, the firm has long represented ACS, the company that partnered with IBM on the welfare privatization agreement. ACS got to continue its role after the state opted to dump IBM. That ACS's services were retained was even more troubling because the company formerly employed former FSSA Secretary Mitch Roob, who initiated the privatization effort after leaving the company to work for Daniels. After Roob departed, the agency named another ACS consultant, Michael Gargano, as the agency's chief of staff and then later as the agency's Secretary. Gargano's wife, Ann Lathrop, also formerly worked at ACS with Roob. The agreement the state entered into with Barnes & Thornburg to handle the representation acknowledged the existence of the conflict of interest, but Daniels nonetheless insisted on using the firm. A top deputy in Daniels' office, Betsy Burdick, is the brother of the Barnes & Thornburg partner who signed the agreement with the state, Brian Burdick. It's notable that Burdick is a bond lawyer and not a litigator.


Cato said...

Good for Dreyer. He's one judge you can count on to actually read and apply the law.

Paul K. Ogden said...

How in the world does that information fall under privilege?

The trial judge has total control over an interlocautory appeal. Dreyer should say "no" to any appeal of a discovery ruling. None of us could get an interlocutory appeal on a discovery issue.

Diana Vice said...

I can't believe the governor thinks there are two sets of rules, one for himself and another set for the rest of us.

Diana Vice said...

This is very interesting Gary, because Brian Burdick was the very attorney used by the schemers in the AEPA/Tremco no-bid roofing debacle. After I discovered the close connection between Burdick and Governor Daniels, I realized why I was beating my head against a brick wall with the governor. His political connections were apparently more important to him than the fact that millions of tax dollars were being spent illegally on a no-bid roofing scheme. That talk about reining in exorbitant school construction spending was just a bunch of hot air. It was used as part of his campaign speech. The conflicts-of-interest in this administration are blaring!!

Advance Indiana said...

The story indicates the documents are not to be turned over to the public. I don't think Dreyer can prevent it. Any news organization should be able to gain access to these documents through a public records request. In fact, I'm surprised nobody from the news media has requested documents. The Star is probably not interested in uncovering all of the corruption behind the privatization contract because it will destroy Daniels' potential presidential bid.