A mid-Missouri judge had called for some phones of staff members of former Governor Eric Greitens’ office to be examined by a forensic expert.
Judge Jon Beetem of the Cole County Circuit Court in Jefferson City issued an order Friday departing from instructions he gave to the plaintiff’s attorney in a hearing earlier in June.
After directing lawyer Mark Pedroli to produce expert confirmation that information can actually be extracted from the phones, Beetem has now ordered attorneys representing the governor’s office to pay for a forensic examination of the devices.
Plaintiff’s attorney Pedroli contends Greitens and his staff violated open records laws by erasing official government business through their use of Confide, an app that erases text messages as soon as they’re read.
Beetem’s new instructions require the governor’s office to produce a forensic expert’s report on a sampling of Greitens’ staff member phones within the next 30 days. The plaintiff will then have 60 days to get testimony from the defense expert and then be allowed to have his own forensic expert examine the phones.
In turn, the defense will have an opportunity to question the plaintiff’s expert under oath. No further evidence in the case will be gathered before the process is complete.
Judge Beetem also granted a request for a Protective Order by the governor’s office, the defendants in the case, that prevents plaintiff’s attorney Pedroli from questioning any of the 20 Greitens staff members who are known to have used the app.
Beetem explained in his order that at this point, the court needs to determine what type of evidence exists on the phones and find out how the Confide app operates.
He said once both sides had completed the instructions issued in his Friday order, they can ask for a scheduling to present further evidence and argue whether Friday’s Protective Order should remain in place.
Pedroli thinks the order is a signal that he may be allowed to question Greitens and his staff members even if no messages or evidence can be recovered from the phones.
“If the messages aren’t retained and we’re unable to get any of them, I’m going to go back and I’m going to make the same argument that we need to go forward and find out who used the Confide app and what they discussed,” said Pedroli. “And the only way to do that is by taking their depositions and asking them.”
Pedroli represents the Sunshine Project and fellow attorney Ben Sansome in the civil case.
The governor’s office under Governor Parson has not displayed a willingness to further explore the previous governor’s use of the app as suggested by its request for a Protective Order.
In a ruling in the case in late April when Greitens was still governor, Judge Beetem provocatively stated he wouldn’t accept the contention that the case should be dismissed because any evidence had been erased.
“The argument that the use of the Confide app excuses compliance because nothing is retained holds less water than a policy of using disappearing ink for all official documents,” Beetem said previously.
Pedroli contends the only way to find out if Greitens and his staff violated open records laws by conducting state business using the Confide app is to question staff members under oath.
“They have an opportunity in their testimony to say they didn’t use this for public business,” said Pedroli. “But they have to do that under oath. That’s how it’s done.”
Judge Beetem’s Friday order reiterates instructions he gave to Pedroli earlier in June to subpoena Confide seeking any documents the company can provide about Greitens’ staff members’ use of the app.
Beetem’s order also reasserts a decision he made during the previous hearing that no evidence will be considered in the case prior to the day former Governor Greitens was inaugurated in January 2017.