A mid-Missouri judge has given special instructions to an attorney seeking to examine cell phones used by staffers of former Governor Eric Greitens.
Cole County Circuit Judge Jon Beetem Tuesday ordered the attorney to produce expert confirmation that information can actually be extracted from the devices. The phones were equipped with an app that erases text messages.
Judge Beetem has also called for the attorney to subpoena documents from Confide, the company that manufactures the app.
The lawyer contends Greitens and his staff violated open records laws by erasing official government business through their use of Confide.
Beetem said he would issue a protective order blocking further efforts to disclose information in the case until it can be determined if relevant records exist on the phones. He stated that Missouri’s open records provision known as the sunshine law doesn’t allow for an unrestricted search for official documents that may or may not exist.
St. Louis area Attorney Mark Pedroli has been seeking to have the phones of Greitens and his staffers that had the app installed examined by a forensic expert, similar to a procedure conducted in a criminal case against Greitens in St. Louis. Judge Beetem has been much more cautious thus far about such an examination in the civil lawsuit.
Beetem had issued an order before Greitens left office asking that he and his employees submit a list of phone numbers, names and phone models of anyone in the governor’s office who used Confide.
Pedroli said that that action by the judge had resulted in the identification of 20 people in the office of governor, including the governor, who used the app.
A previous investigation by Attorney General Josh Hawley of the governor’s office use of Confide concluded that only eight office staffers had used the app.
In the hearing Tuesday, Pedroli said he’d been stonewalled by attorneys for the governor’s office in attempting to get more information about the 20 people who used the app.
He said it would be necessary for them to speak on the record, claiming they would prove an important point that government records were knowingly destroyed.
“If you don’t have this,” Pedroli said. “If you don’t have the deliberately destroyed remedy, government officials will be motivated to use Confide. They’re going to be motivated to destroy their records now, because they’re going to know there is no remedy.”
In an effort to highlight the importance of gaining access to the phones of Greitens’ staffers who used the app, Pedroli referenced Robert Mueller’s Russia probe and investigation into the activities of Donald Trump’s campaign.
He said that in that case encrypted messages were recovered from phones installed with apps such as Confide. “Whether you agree or disagree with that investigation, the fact is they’re now finding encrypted messages,” said Pedroli. “And they’re getting the keys to them and they’re unlocking it. But they’re not doing it through the subpoena to Confide, they’re doing it through the phones.”
Pedroli admitted that no information outside of the identification of who downloaded the app would be obtained by subpoenaing Confide for documents. He continued to push for the phones to be examined themselves.
Washington D.C. based attorney Barbara Smith, who represented the governor’s office at Tuesday’s hearing, noted that the case would have likely already been dismissed if Pedroli had not insisted manufacturer Confide be instructed to supply information.
Beetem stated Missouri’s sunshine law requires government records that exist be made available. He said Petroli was trying to recreate records through the phone examinations, something that is not covered under the statute.
Beetem also shot down Pedroli’s request to seek information about Greitens use of Confide before he took office in January 2017.
Additionally, he didn’t say whether he’d grant Pedroli his request to get on record statements from the Greitens staffers who had the app on their phones, just that Pedroli first needed to get an expert to confirm information could be extracted from the devices. Beetem also wants clarification on who would be paying for any examination of the phones.
Beetem did not indicate when the next hearing would take place.
Pedroli represents the Sunshine Project and fellow attorney Ben Sansome in the civil case.