Election Systems and Software officials failed to appear for depositions earlier this month after Saguache District Judge Martin Gonzales ruled that the firm could be deposed for a Colorado Open Records Act (CORA) suit filed in February.
Denver attorney Robert McGuire, on behalf of his client, Aspen election integrity activist Marilyn Marks, filed the suit to force Saguache County Clerk Melinda Myers to turn over voting records and related documents Marks requested beginning in November 2010. McGuire waited for officials from the Nebraska firm for nearly an hour, he said, before deciding they would not appear.
Marks later filed a motion with the court to hold them in contempt unless they could show sufficient cause for refusing to honor the deposition subpoenas. ES&S made no motion to file a protective order (if their appearance would violate trade secrets and/or force the production of proprietary information) nor did their attorneys move to quash the subpoena, court records show.
Instead the company responded last week with a requesting the court to excuse them from the depositions, claiming that they are an international agent exempt from the court’s jurisdiction to depose. This despite the fact that over 5,000 of the firm’s machines are in use throughout the state, according to the most recent voting systems inventory published by the SOS.
“ES&S is an important and necessary witness in the open records case,” McGuire said in an e-mail Tuesday. “Two of the main issues in dispute are what election records were created in the first place and who really owns those election records – the public? Or a private, out-of-state corporation?”
Judge Martin Gonzales responded to Marks’ motion to hold ES&S in contempt and require them to show cause for failure to appear at the depositions Monday by requiring the firm to discuss their reasons for not appearing in a status conference scheduled for Wednesday. ES&S then must show cause for failure to appear if the issues are not satisfactorily resolved.
In their request, ES&S claims they are protected by confidentiality and do not even have employees working in Colorado. They called the subpoena for their depositions “facially invalid and void” and criticized Marks for exceeding the scope of permissible CORA requests for the information from their records and Clerk Myers’ records.
“By virtue of what they do, ES&S has information on things that are wrong, but the don’t want to share this information,” former commissioner’s candidate Steve Carlson said Monday in a phone interview. “Their refusal to give depositions is very telling.”