District Judge Martin Gonzales ruled Wednesday that Elections System and Software (ES&S), who failed to appear for their depositions in the Marilyn Marks v. Melinda Myers Colorado Open Records Act suit could be held in contempt of court. Denver attorney Robert McGuire, on behalf of his client, Aspen election integrity advocate Marilyn Marks filed the suit to force Saguache County Clerk Melinda Myers to turn over voting records and related documents Marks requested beginning last November. ES&S provided Saguache County with their M650 voting device and accompanying software used in the contested Nov. 2, 2010 election.
Gonzales ordered that the election firm appear in court to show cause why they should not be held in contempt for failing to appear for the scheduled depositions in June after he approved the issuance of a subpoena for the depositions. Marks later filed a motion with the court to hold ES&S in contempt unless they could show sufficient cause for refusing to honor the deposition subpoena. ES&S made no motion to file a protective order, protesting appearance on the grounds that the deposition 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 requested that the court excuse them from the depositions, claiming that they are an international agent and as such are exempt from the court’s jurisdiction to depose.
This despite the fact that some 3,000 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 history in Colorado
In the ruling, Gonzales cites several examples of ES&S activity in Colorado including the following:
• ES&S maintains a registered agent in Denver and the subpoena was duly served on this agent within the required distance from the proposed location of the depositions.
• The Secretary of State’s Office has certified ES&S voting equipment since at least 2002.
• ES&S unsuccessfully attempted to become the sole voting device vendor for the state in 2006. (ES&S is currently renewing its efforts to become Colorado’s sole voting device vendor, as discussed by SOS officials and others recently during a Best Practices and Visioning Committee meeting).
• ES&S has both sold and leased numerous voting devices to Colorado counties and also has provided support and training to county officials and others involved in the voting process.
• This includes the sale of the M650 to Saguache County, plus “$14,605 for installation, training and maintenance services, most of which necessarily require performance by ES&S on-site in Saguache.”
• ES&S trained Clerk Myers, clerk’s office staffer Christian Samora, four election judges and two canvass board members in the use of the M650 Oct. 12, 2009.
• ES&S supplied telephone support to the Saguache County Clerk’s Office on Nov. 2 and Nov. 8, 2010 concerning the M650 and ES&S technician Tim King was sent by the company to troubleshoot the M650 Nov. 15.
• On March 19, ES&S issued a detailed report to the SOS on the assistance the firm provided Saguache officials in the course of the 2010 election process.
Gonzales cited numerous examples from civil procedure rules, state statutes and case law explaining why the arguments that ES&S lies outside the court’s jurisdiction are not valid.