From: Bevharrismail@aol.com [mailto:Bevharrismail@aol.com]
Sent: Monday, April 26, 2004 9:29 PM
Subject: From Bev Harris -- The inside scoop on Diebold lawyer memos
Scroll down for links to selected Diebold lawyer memos:
Having reviewed the full set of Diebold lawyer memos, including those not made public, I can report that these memos reveal a picture that brings Diebold fully to the level of malfeasance of Enron.
Diebold law firm Jones Day has sued the Oakland Tribune seeking return of leaked memos written by its lawyers. The lawsuit appears to pit the principle of attorney-client privilege against protections against forcing the media to reveal the sources.
But the issue may be simpler than it appears. In a case of legal malpractice, the documents aren't protectable and the whistleblower has the right to blow that whistle. The memos from Diebold's lawyers contain material lies in drafts for responses to a series of 10 questions posed by the secretary of state and the voting panel.
When I saw the leaked memos, I wondered whether the lawyers were lying to the secretary of state because Diebold misled them or whether it was their decision to tell the lie. If it was their decision, it constitutes malpractice.
Then, Wednesday at the Voter Panel hearing, the attorney from Jones Day stepped up to testify that it was HIS IDEA to write the information in the way they did. Of course he claimed it was not a lie, but parsed it in such a way that one had to do mental gymnastics in order to follow his argument.
Lawyers can parse, spin, and reframe without violating the law. But what Jones Day did went further than that.
It was in response to the Diebold lawyer that that the panel made the comment to the lawyer and to Urosevich: "So you are either misleading us or lying, which is it?"
If a lawyer participates in deliberate lying on formal interogatories, his work cannot be protected as attorney-client privilege. More on what makes the Diebold lawyer lies not protectable below.
A problematic area for the Diebold lawyers is the part of the lawyer memos where, when they are discussing what to produce in response to a demand to produce documents, they make the comment "We have to find out what the secretary of state has." Immediately afterward they write something to this effect: "We want to minimize what we produce."
But their production must be based on what they have, not on what the Secretary of State has. It appears that they were trying to figure out whether they'd get caught if they omitted stuff or lied.
It turns out they did get caught. This became a material issue, because the worst of the misleading, or lying, had to do with whether Diebold uses customized software for its votercard encoder (it does use customized software, but the lawyers written response to the secretary of state said it doesn't). In the lawyer memos:
- The lawyers were wondering which documents from the Diebold FTP site the Secretary of State has -- that's relevant because on that FTP site was proof that Diebold does indeed customize its votercard software. They seem to want to know whether the Secretary of State has that info before they tell him that the votercard stuff is NOT modified (which is what they said).
- At the core of the issue is whether Diebold had to certify its votercard encoder software (yes, if customized; no, if off-the-shelf).
- Diebold never certified it (an illegal procedure, if the votercard software is customized)
- When the lawyers responded that Diebold used off-the-shelf stuff that was never modified, therefore it didn't need to be certified, this was a lie.
- The documents on the FTP site, and James Dunn's testimony (which the lawyers didn't know was coming) proved that Diebold did customize the votercard software and therefore, should have certified it.
- This was a significant and material lie, because it is exactly this votercard software that failed on March 2, (in 40% of the San Diego locations and in nearly 30% of Alameda County locations) causing many voters to be disenfranchised.
The attorneys also submitted lies about inability to obtain source code. Diebold claims it has ISO 9000 status, a quality control label of sorts. Indeed, Diebold represented to certifier Wyle Laboratories that its TSx system followed ISO 9000 standards. Yet the lawyers wrote, when asked by the secretary of state to produce the source code for the TSx, that it might take many months -- up to SIX MONTHS, in fact -- for Diebold to collect together its source code. This would be a specific violation of ISO 9000 standards, and has led some citizens to call for ISO 9000 decertification of Diebold.
Either Diebold is not ISO 9000 compliant (but they represented that it is) or it is ISO 9000 compliant, but is lying about its ability to lay its hands on its own source code.
Yes, it appears that the lawyers participated in material lies which caused real harm, and that they did so with intent. And this will ultimately make it impossible for them to protect their documents.
Contact info: Bev Harris
330 SW 43rd St PMB K-547
Renton WA 98055
This is the correct Amazon address for book purchase:
The inside scoop on Diebold lawyer memos