Case 1:12-cv CMA-MJW Document 103 Filed 08/20/12 USDC Colorado Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:12-cv CMA-MJW Document 103 Filed 08/20/12 USDC Colorado Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 1:12-cv CMA-MJW CITIZEN CENTER, a Colorado nonprofit corporation, Plaintiff, v. SCOTT GESSLER, in his official capacity as Colorado Secretary of State, SHEILA REINER, in her official capacity as Mesa County Clerk & Recorder, SCOTT DOYLE, in his official capacity as Larimer County Clerk & Recorder, PAM ANDERSON, in her official capacity as Jefferson County Clerk & Recorder, HILLARY HALL, in her official capacity as Boulder County Clerk & Recorder, JOYCE RENO, in her official capacity as Chaffee County Clerk & Recorder, TEAK SIMONTON, in her official capacity as Eagle County Clerk & Recorder, Defendants. MOTION TO QUASH OR, IN THE ALTERNATIVE, FOR PROTECTIVE ORDER Defendant Joyce Reno, in her official capacity as Chaffee County Clerk & Recorder, by her attorneys Chaffee County Attorney Jennifer Davis and Gillian Dale of Hall & Evans, L.L.C., hereby moves to quash the Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action issued to Response Technologies, Inc. (the Subpoena ), or in the alternative for an Order requiring that no documents be produced in response to the Subpoena without the express consent of Ms. Reno, and as grounds therefore states as follows: 1. Response Technologies is presently Chaffee County s printer for elections administered by Ms. Reno. Although the Subpoena was issued to Response

2 Case 1:12-cv CMA-MJW Document 103 Filed 08/20/12 USDC Colorado Page 2 of 7 Technologies, Ms. Reno s involvement will be required to review the requested documents and analyze the potential for production of protected materials, and as a result the Subpoena directly affects Ms. Reno s office. See Fed. R. Civ. P. 45(c)(3)(B). 2. Prior to the issuance of the Subpoena, Plaintiff inquired as to whether Ms. Reno would be willing to work with her printer to produce documents relating to this lawsuit, without the need for the issuance of a subpoena. The undersigned counsel obtained consent from Ms. Reno and has been working with the Chaffee County Attorney and the printer in order to obtain the requested documents and review those documents to determine whether they can be produced to a third party. 3. Although Plaintiff originally demanded production of the printer documents by August 15, 2012, or within 9 days, Ms. Reno was unable to meet that arbitrary deadline. The undersigned counsel informed Plaintiff s counsel that the available documents would be produced by the beginning of this week. 4. Plaintiff nevertheless issued the Subpoena, demanding production of a similar list of documents directly from Response Technologies by today, August 20, at 4:00 p.m. 5. Some of the requested documents will be produced by Ms. Reno today or tomorrow pursuant to her pre-existing agreement to voluntarily produce the documents. Other requested documents will be objected to by Ms. Reno on various grounds. 6. Ms. Reno now moves to quash the Subpoena for several reasons. First, the Subpoena subjects Ms. Reno and Response Technologies to undue burden pursuant to Fed. R. Civ. P. 45(c)(3)(A)(iv). Response Technologies has already been

3 Case 1:12-cv CMA-MJW Document 103 Filed 08/20/12 USDC Colorado Page 3 of 7 working with Ms. Reno to obtain responsive documents, which documents the undersigned counsel has already agreed to produce by the beginning of this week. Response Technologies should not be required to personally participate in a document production that is already being dealt with in substantially the same time frame Although Plaintiff may argue that Ms. Reno cannot complain about the burden to a third party, in reality Ms. Reno must work with Response Technologies on every step of this process to ensure that privileged or protected material is not provided to third parties. In addition, Response Technologies is demanding payment for its time in providing responsive documents, currently amounting to $475 (9.5 hours at a rate of $50 per hour). Plaintiff has refused to pay this cost despite the fact that the time incurred was solely due to Plaintiff s request for production. Any additional costs incurred as a result of the necessity to respond to the Subpoena instead of the voluntary document production will likely also be charged to Ms. Reno, with the prospects of repayment by Plaintiff questionable. 8. Second, the Subpoena is objectionable because it requires disclosure of privileged or other protected matter pursuant to Fed. R. Civ. P. 45(c)(3)(A)(iii). Ms. Reno has recently learned that a citizen of Chaffee County, who is not a member of Citizen Center, has developed a method for identification of certain voted ballots from the 2012 primary, utilizing a combination of numbers from unvoted ballots with stubs 1 Plaintiff issued a substantially identical subpoena to the printer for Eagle County, Gran Farnum Printing, and upon request by the attorney for Gran Farnum agreed to an extension of time until Friday to obtain the requested documents. Plaintiff s insistence that a subpoena was necessary in order to secure a shorter turnaround time for the requested documents therefore appears disingenuous.

4 Case 1:12-cv CMA-MJW Document 103 Filed 08/20/12 USDC Colorado Page 4 of 7 attached and voted ballots obtained through Colorado Open Records Act ( CORA ) requests. Ms. Reno has investigated this issue and has taken steps to ensure that responses to any future CORA requests relating to the 2012 primary will not allow for the identification of any individual ballot. Ms. Reno will also take steps to ensure that this issue will not arise in future elections, including the upcoming general election. Nevertheless, because the issue was not identified until after the 2012 primary had already taken place, documentation that includes any information that would allow other individuals to re-create the steps taken by the individual referenced above to identify any particular voted ballots will not be produced Ms. Reno will object on this ground to the production of any documents maintained by the printer that contains matrix numbers, ballot stub numbers, or sequential ordering of voters that aligns with the ordering of the ballot bar code numbers. 10. In the alternative, Ms. Reno moves for a protective order pursuant to Fed. R. Civ. P. 26(c)(1), requiring that no documents be produced pursuant to the Subpoena without Ms. Reno s review and express consent. As noted above, the requested documents may contain protected information that should not be divulged to third parties, and Ms. Reno should be permitted, pursuant to her official duties, to review any documentation proposed to be produced by Response Technologies and ensure any 2 Prior to being alerted to this potential issue, Ms. Reno produced copies of all voted ballots from the 2012 primary election in Chaffee County in response to Plaintiff s discovery requests. Had Ms. Reno been aware of this issue previously, all bar codes on the produced ballots would have been redacted, as will occur in response to any future discovery or CORA requests.

5 Case 1:12-cv CMA-MJW Document 103 Filed 08/20/12 USDC Colorado Page 5 of 7 necessary safeguards are taken to ensure that individual ballots are not publicly identified. 11. The issuance of the Subpoena was duplicative and unnecessary given Ms. Reno s agreement to voluntarily produce the same documents within a day or two of the date of the Subpoena, and any documents that will not be voluntarily produced would be objected to on grounds of protection of voter secrecy. 12. Certificate of Compliance: Pursuant to D.C.COLO.LCivR 7.1(A), the undersigned counsel conferred with Robert McGuire, counsel for Plaintiff, prior to filing this Motion. Mr. McGuire stated that Plaintiff would consider withdrawing its Subpoena only if Ms. Reno promised to provide all documentation responsive to the Subpoena by 4:00 p.m. today. The undersigned counsel noted that Plaintiff already agreed to an extension to Friday for Eagle County to respond to a practically identical subpoena, and requested a parallel extension, but did not receive any further reply prior to filing this Motion. Respectfully submitted this 20 th day of August, /s/ Gillian Dale Gillian Dale, Esq. Thomas J. Lyons, Esq. of HALL & EVANS, L.L.C Seventeenth St., #600 Denver, CO Phone: Fax: daleg@hallevans.com lyonst@hallevans.com ATTORNEYS FOR DEFENDANT JOYCE RENO

6 Case 1:12-cv CMA-MJW Document 103 Filed 08/20/12 USDC Colorado Page 6 of 7 CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 20 th day of August, 2012, I electronically filed the foregoing MOTION TO QUASH with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following addresses: Robert A. McGuire 1624 Market Street, Suite 202 Denver, CO ram@lawram.com Maurice Knaizer LeeAnn Morrill State Attorney General s Office 1525 Sherman Street, 7th Floor Denver, CO maurie.knaizer@state.co.us leeann.morrill@state.co.us Writer Mott David R. Wunderlich Jefferson County Attorney s Office 100 Jefferson County Pkwy., Suite 5500 Golden, CO wmott@jeffco.us dwunderl@jeffco.us David Hughes Shelley Bailey Boulder County Attorney s Office 1325 Pearl St. Boulder, CO dhughes@bouldercounty.org David Patrick Ayraud Linda K. Connors Larimer County Attorney s Office 224 Canyon Avenue, Suite 200 Fort Collins, CO dayraud@larimer.org lconnors@larimer.org

7 Case 1:12-cv CMA-MJW Document 103 Filed 08/20/12 USDC Colorado Page 7 of 7 Bryan R. Treu Eagle County Attorney 500 Broadway P.O. Box 850 Eagle, CO bryan.treu@eaglecounty.us Jennifer A. Davis Chaffee County Attorney 104 Crestone Ave. P.O. Box 699 Salida, CO jdavis@chaffeecounty.org Maurice Lyle Dechant David Frankel Andrea Nina Atencio Mesa County Attorney s Office 544 Rood Avenue P.O. Box 20,000 Grand Junction, CO Lyle.dechant@mesacounty.us s/ Denise Y. Gutierrez, Legal Secretary Gillian Dale HALL & EVANS, L.L.C Seventeenth St., #600 Denver, CO Phone: Fax: daleg@hallevans.com ATTORNEYS FOR DEFENDANT JOYCE RENO

8 Case 1:12-cv CMA-MJW Document Filed 08/20/12 USDC Colorado Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 1:12-cv CMA-MJW CITIZEN CENTER, a Colorado nonprofit corporation, Plaintiff, v. SCOTT GESSLER, in his official capacity as Colorado Secretary of State, SHEILA REINER, in her official capacity as Mesa County Clerk & Recorder, SCOTT DOYLE, in his official capacity as Larimer County Clerk & Recorder, PAM ANDERSON, in her official capacity as Jefferson County Clerk & Recorder, HILLARY HALL, in her official capacity as Boulder County Clerk & Recorder, JOYCE RENO, in her official capacity as Chaffee County Clerk & Recorder, TEAK SIMONTON, in her official capacity as Eagle County Clerk & Recorder, Defendants. ORDER GRANTING MOTION TO QUASH This matter comes before the Court on the Motion to Quash filed by Defendant Joyce Reno, in her official capacity as Chaffee County Clerk & Recorder. Having reviewed the Motion, and being fully advised in the premises, the Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action issued to Response Technologies, Inc. on August 16, 2012 is hereby quashed. Ms. Reno shall have until this Friday, August 24, in which to provide documents responsive to the Subpoena or to provide grounds for objecting to the same. Dated this day of, 2012 United States Magistrate Judge