The Volokh Conspiracy
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From Magistrate Judge Lauren Louis's decision in Griffin v. MyPillow, Inc. (S.D. Fla.), posted today:
This action arises from an out-of-district subpoena directed to the Supervisor of Elections for Monroe County, Florida, issued in connection with US Dominion, Inc. et al. v. My Pillow, Inc. et al., Case No. 1:21-cv-00445-CJN (D.D.C.) … (the "District of Columbia Case").
The District of Columbia Case is an action for defamation brought by plaintiffs US Dominion and its subsidiaries … against defendants My Pillow and its CEO, Michael Lindell, who are Respondents in the instant proceeding. Plaintiffs, who are manufacturers of vote tabulation systems used in elections throughout the country, set out in their complaint that My Pillow and Lindell promoted then-President Donald J. Trump's election-related claims (that the 2020 U.S. presidential election had been stolen from him) to boost their My Pillow product sales among audiences watching certain news outlets, knowing these claims to be false….
Plaintiffs assert that these claims have been resoundingly discredited and rejected in numerous courts, by various agencies of the Federal government, by election officials in numerous states, and by election specialists…. In their complaint, Plaintiffs assert that, on February 4, 2021, they again put the defendants on notice of the falsity of their statements, pointing the defendants to the alleged flaws in the report and data that the defendants had used to support their election-related claims. In response, the defendants asserted, in television interviews, that they were being targeted by Plaintiffs.
The next day, and after having been put on notice by Plaintiffs regarding the alleged falsities of his statements, Lindell broadcasted a purportedly sham documentary-style movie, which is described in greater detail in the complaint. Plaintiffs contend that, apart from promoting My Pillow's products in that movie, Lindell knowingly lied that the discredited report and allegedly manufactured data obtained from conspiracy theorists both were proof that the 2020 presidential election had been stolen, due to algorithms hacked into Plaintiffs' vote tabulation machines….
On September 7, 2022, Respondents served the Subpoena on the Supervisor, commanding production of 22 different categories of information related to the voting system used by Monroe County, Florida during the 2020 U.S. presidential election. The requested information includes forensic copies of all computer drives affiliated or attached to the Supervisor's vote tabulation system, forensic copies of certain files generated by the vote tabulation systems, diagrams of the Supervisor's computer networks running the election system, MAC addresses for election equipment, network logs, credentials for encryption services used by the election system, lists of personnel who had access to the election system before and shortly after the November 2020 presidential election, vote tabulation documents generated during the November 2020 election, documents produced in relation to the November 2020 election, documents related to intrusion attempts on the election system, contracts and agreements with the supplier of the election system, and contracts and agreements related to network security and cybersecurity….
The Supervisor seeks to quash the Subpoena on three grounds. First, the Supervisor argues that compliance with the Subpoena constitutes a threat to the cybersecurity of the election system in Monroe County. According to the Supervisor, Respondents seek the production of information (network diagrams, MAC addresses, IP addresses, and credentials) that would permit the infiltration of Monroe County's voting system; the Supervisor contends that production of this information would constitute a security breach in violation of 6 U.S.C. §§ 1501–1510 and Florida Statutes § 212.318, and there is a significant risk that the information would be publicly disclosed even if subject to a protective order. Moreover, the Supervisor asserts that the information sought is protected from disclosure under Florida Statutes § 119.0725. And, the Supervisor contends that the information sought constitutes "other protected matter" requiring that the Subpoena be quashed, under Rule 45(d)(3)(A)(iii).
Second, the Supervisor argues that the Subpoena should be quashed because it seeks production of confidential and proprietary trade secrets. Specifically, the Supervisor contends that the information sought constitutes trade secrets under Florida law and that the information, particularly the source code and associated documentation, is otherwise confidential pursuant to the Voting System Agreement between the Supervisor and Plaintiffs. Accordingly, the Supervisor asserts that production of documents requested in Requests 1(a)–(h), 2(a)–(b), 3(a), and 3(c) would require the Supervisor to violate the Voting System Agreement.
Third, the Supervisor argues that Subpoena should be quashed because compliance would impose an undue burden on the Supervisor. Specifically, the Supervisor argues that the Subpoena is unduly burdensome because the Supervisor is a non-party; the Subpoena covers an extensive time span, with four of the requests being "unlimited" in scope; the Subpoena calls for production of documents and materials, the creation of which is beyond the scope of the Supervisor and her staff's expertise (e.g., forensic images); and compliance with the Subpoena will require hundreds of hours of work and will be unduly expensive. Last, the Supervisor argues that disclosure of the requested materials would likely require that the Monroe County voting system be replaced…. Upon weighing the relevant factors, the Court finds that, with respect to [the contested requests], the Subpoena must be quashed, as unduly burdensome….
The burden of proof in demonstrating that compliance with a subpoena presents an undue burden lies with the party opposing the subpoena, while the party seeking to enforce a subpoena bears the burden of demonstrating that the request is relevant. To determine whether a subpoena imposes an undue burden, the Court must balance the requesting party's need for the discovery against the burden imposed upon the subpoenaed party. Courts consider the following factors in this analysis: "(1) relevance of the information requested; (2) the need of the party for the documents; (3) the breadth of the document request; (4) the time period covered by the request; (5) the particularity with which the party describes the requested documents; and (6) the burden imposed." Wiwa v. Royal Dutch Petroleum Co. (5th Cir. 2004). "The status of the subpoena recipient as a non-party is also a factor that can weigh against disclosure in the undue burden inquiry." …
As to the first Wiwa factor, the specific relevance of the information in the Supervisor's possession is tenuous. In the Motion, the Supervisor asserts that the requested information is not relevant. In their Response, Respondents point to evidence in the public record about Dominion's vote tabulation systems that purportedly establish Respondents' reasonable basis to pursue the requested information, generally. For example, the Response identifies Dominion's ImageCast X equipment, and D-Suite 5.5-B and D-Suite 5.5-C software, as containing vulnerabilities or anomalies, thus providing a reasonable basis for the information sought from the Supervisor, as that information purportedly bears on the truth or falsity of Mr. Lindell's statements. . However, at oral argument, the Supervisor proffered that Monroe County does not use this particular equipment or software, and instead uses "ImageCast Evolution" equipment, in addition to software that is several versions out of date. This proffer is supported by the Voting System Agreement attached to the Motion, , which identifies the Supervisor's equipment as the ImageCast Evolution system. While the Subpoena appears to appreciate there are different Dominion hardware systems in use, see , the particular equipment and software that the Supervisors uses, which has not been identified as containing vulnerabilities, weakens a finding that the information the Supervisor actually possesses is relevant, irrespective of whether the information sought, generally, is relevant.
However, it is not my finding that the information Respondents seek is irrelevant, and I make no finding as to the relevance of the information sought. Rather, it is my finding that the information the Supervisor possesses is of tenuous relevance. Indeed, as the Supervisor argued at oral argument, there appears to be a difference between what she possesses and what Respondents assert that information will support as evidence. Accordingly, I find that the first factor does not weigh in favor of either side.
I nonetheless turn to Respondents' need for the information sought. As to the second factor, Respondents' need for the information sought from the Supervisor is here diminished. Indeed, Respondents have served subpoenas identical to that here on at least 39 other Dominion customers. Further, the United States District Court for the District of Columbia has entered a protective order governing the production of confidential information. Thus, whatever need Respondents have for the information sought in the Subpoena, the need for the information the Supervisor possesses is diminished in light of the 38 other identical non-party subpoenas.
Next, I turn to the burden compliance would impose on the Supervisor. Regarding the third Wiwa factor, the breadth of the documents requested is indisputably voluminous. Relatedly, and dovetailing with the fourth factor, the Subpoena is overbroad, in part. In Request 1, Respondents seek, from a non-party, "forensic images of every computer drive and memory device that is part of the voting system and every piece of hardware that is part of or used by the voting system." (summarizing Request 1). In Request 2, Respondents seek, without specifying any time period, forensic copies of specific file formats generated from tabulators and ballot marking devices, in addition to "all data related to the November 2020 Election subject to the 22-month voter records retention requirement under U.S. federal law." As to this request, the Subpoena is overbroad. And in Request 3, which at oral argument Respondents confirmed is contingent on receiving productions responsive to Requests 1 and 2, Respondents seek a complete network map of the Supervisor's Dominion election tabulation system, digital addresses for the hardware, network logs (again, not time-limited), log-in credentials to bypass encryption services, and a list of personnel who had access to the network from January 1, 2019 through November 30, 2020.
Because the Supervisor's Dominion election equipment has been used in elections since the November 2020 general election time, I questioned the Parties whether forensic images and copies of the relevant drives and systems requested in Requests 1 and 2, from the time of the November 2020 general election, could even be created or whether, by virtue of their subsequent use, the drives will have necessarily changed. Because counsel for Respondents explained that what is sought is an image of the drives as they were immediately following the 2020 general election, the Supervisor could not represent that the data would still exist. The Supervisor proffered that she could not, without hiring an outside service, determine whether she can create the forensic images and copies from the time period requested. The expense of attempting to collect the responsive data—indeed, of even determining whether it would be possible to collect that data—is unquestionably burdensome. Moreover, Respondents' counsel agreed that images that fail to accurately reveal the status of data following the election would not be relevant to the defenses advanced. The information sought is, essentially, a digital copy of a non-party's entire election system. And in this regard, the Supervisor's status as a non-party is relevant. I afford the Supervisor's non-party status great weight in light of the voluminous information requested.
Finally, while the Subpoena describes the documents requested with particularity, the burden imposed in complying with Requests 1–3 is otherwise undue. The Motion is premised, in part, on the burden compliance would impose coinciding with the Supervisor's preparation for and administration of the 2022 general election leading up to and during early-November 2022. That election has since passed and, as noted above, Respondents consented at oral argument to an extension of time to comply with Requests 4(a) and 4(b). Accordingly, I recognize that the burden has diminished since the filing of the instant Motion.
However, the Supervisor attested that her office employs only nine people, none of whom possess the technical knowledge or expertise required to generate productions responsive to Requests 1, 2, and 3(a)–(d). Thus, to comply with Requests 1, 2, and 3(a)–(d), the Supervisor would have to incur the expense of outside computer experts, which she represents "would probably be Dominion"; although, the Supervisor did not provide the estimated cost of compliance. In any event, the Supervisor further attested that she likely will have to replace her election system if that system's network maps and drives are disclosed, either to ensure that the system is not hacked or to restore public confidence in the system. There has been no proffer advanced to discredit this attestation. The concern is not unreasonable in light of the special importance placed on cybersecurity surrounding election systems, which both sides recognize, and the potential handling or disclosure of the requested information should the District of Columbia Case proceed to dispositive pretrial motions or public trial. While the Supervisor has not adduced evidence of the cost of replacing the election system, review of the Voting System Agreement attached to the Motion reveals that, in 2013 when the Supervisor licensed her system from Plaintiffs, the system cost more than $700,000.00. That cost, in 2022, likely remains high….
I am not persuaded by Respondents' argument that courts have previously ordered the disclosure of election system software. When asked at the hearing whether any court had ever done so, Respondents pointed to Dominion Voting Systems, Inc. v. Wisconsin Elections Commission (Wis. Ct. App. 2020). However, that case involved an appeal regarding the scope of an administrative agency's proposed confidentiality and nondisclosure agreement that would permit a candidate's campaign to gain access to software components of a voting system used in the November 2016 general election, pursuant to the campaign's statutory right to do so under Wisconsin law.
Respondents also pointed to United States District Judge Amy Totenberg's August 11, 2022 Order in Curling v. Raffensperger (N.D. Ga.). There, among other things, the court denied Respondents' motion to intervene in the Northern District of Georgia so that Respondents could gain access to an expert report filed under seal in that court, for use in support of Respondents' defense in the District of Columbia Case. Respondents characterize the expert report as providing a "roadmap explaining how to hack election equipment," and argue that forensic copies of the Supervisors entire election system plus network maps "certainly" should be produced in litigation with appropriate protections if the roadmap to hack that system can be produced in litigation. (emphasis omitted). The Court is not convinced. If anything, the argument runs in the other direction. Accordingly, neither case advanced by Respondents militates against quashing the Subpoena.
For all these reasons, weighing the tenuous relevance of the information in the Supervisor's possession, Respondents' diminished need for the information sought from the Supervisor, the high burden on the Supervisor of compliance, and considering the Supervisor's status as a non- party, I find that the burden on the Supervisor of complying with Requests 1 through 3 is undue.