( NANCY SWEENEY CLFRK nl:>TR!CT COURT Jaime MacNaughton 1205 8th Ave. PO llox 202401 Helena, MT 59620-2401 406-444-2942 (tel) jmacnaughton@mt.gov Gene R. Jarussi John Heenan 7016 fEB -8 Pl! 12: 23 BISHOP & HEENAN 1631 Zimmerman Tr. Billings, MT 59102 [l y 406-839-9091 (tel) ~:f,~i'l,';U~TY~.#.<:.:4~~ genejarussi@bishopandheenan.com john@bishopandheenan.com Attorney for the Commissioner of Political Practices Special Attorneys General IN THE DISTRICT COURT OF THE STATE OF MONTANA FIRST JUCIDIAL DIS'lRlCT, LEWIS AND CLARK COUNlY The COMMISSIONER OF POLITICAL PRACTICES FOR THE STATE OF MONTANA, through JONATHAN R. MOTL, acting in his official capacity as The Commissioner of Political Practices, ) ) Plaintiff, Counter-Claimant ) Defendant, ) ) } vs. ) ) ARTHUR" ART" \VITTICH, ) ) Defendant, Counter-Claimant, ) and Third Party Plaintiff, ) ) vs. ) ) STEVE BULLOCK, BRUCE TUTVEDT, ) JIM MURRY, JONATHAN MOTL, and ) JOHN DOES 1-20, ) ) Third Party Defendants. ) ) Cause NoJ.BDV-2014-251 tNoexeo COPP'S BRIEF IN RESPONSE TO WITTICH'S ALTERNATIVE MOTION TO DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE 1 33 { SUMMARY OF COPP'S RESPONSE By a motion and brief filed January 21, 2016, Defendant Wittich has accused the COPP of intentionally destroying the email archives of Julie Steab ("Steab archive"), a former COPP employee who resigned effective October 28, 2013. Wittich' s allegation of criminal conduct on the part of Commissioner Motl is based on an unsigned declaration, a fact of some consequence given that the declarant, had she signed it, would be subject to perjury. This latest over-the-top salvo by Wittich goes too far. Wittich and his counsel had an obligation, before signing this motion, to verify that it was grounded in law and fact and was interposed for a legitimate reason, as compared to a harassing one. See Rule 11, Mont. R. Civ. P. Yet, the entire predicate for the motion is an unsigned declaration which, if signed, would constitute perjury since it contains statements that, as explained below, are materially false. The motion is also legally baseless. Wittich argues that Request for Production No. 4 in his first set of discovery encompasses the Steab archive. On its face it does not. Moreover, Wittich was required to "meet and confer" with the COPP if he believed that the COPP had not properly responded to this request for production. He did not. Most egregious, Wittich contends that COPP Motl destroyed the Steab archive. The facts show that he did not. 2 ( The only appropriate response for Wittich and his counsel at this juncture is to immediately withdraw their Motion and apologize to the COPP and the Court for filing such a baseless motion. ARGUMENT 1. The entire factual predicate for Wittich's Motion is an unsigned declaration that is not evidence. Mont. Code Ann.§ 1-6-105, MCA requires a declaration to be "subscribed by the person." Ms. Steab's Declaraton is not signed: 1DECLARE UNDER PENALTY OF l'ER.JURYTHATTI IE FOl\EGO!l\G IS Tltl'EAND COIU\1'CT. Exowtod 1his _/{~ ;lny of ,January, 2016, iu Montana City, Jcffo1»<>11 County. Stale of Montana. --· /~·// -- ---- ·--·--···---- Julie Steab (Wittich Ex. "C"; attached hereto as App A). An unsigned declaration is inadmissible because there is no proof that the declarant saw the document or approved of its contents. Fresno Rock Taco LLC v. National Surety Corp., 2012 WL 3250418 (E.D. Cal. 2012) (citation omitted). An unsigned declaration that fails to meet the requirements of § 1-6-105, MCA is defective and not admissible evidence. Id. As set forth below, this oversight is not some trifle. The factual allegations in the declaration are materially false. 2. The COPP could not and did not destroy the Steab archive. The unsigned Steab Declaration is a lie. 3 ( Wittich, based on Steab's unsigned declaration, makes very serious allegations against COPP Motl, asserting that he ought to be "sanctioned" because he purposely deleted the Steab email archive (Wittich Brf, pg. 4), that his "spoliation stems from a deliberate attempt to hamper the opposing party" (Id., pg. 9), that the destruction of the Steab archive "can be no accident" (Id., pg. 10), and that the destruction of the emails is a felony (Id., pg. 10). All of this is demonstrably false and not appropriate argument by a litigant or his lawyer. Julie Steab is a former employee of COPP who resigned her employment effective October 28, 2013. The Wittich investigation began on January 24, 2014 three months after Ms. Steab's departure. The sufficiency decision was rendered by the COPP in March of 2014, and this present action was filed in April of 2014, all after Ms. Steab' s departure. Prior to leaving the COPP in October of 2013, Julie Steab attempted to delete/ destroy her email archive. The assertion in in her unsigned declaration that "I did not delete my COPP email archive folder (or any other folder) when I left the Agency" (App A, if 4) is a lie. And if it weren't for the State's computer system capabilities, it may not have been exposed as such. Attached hereto as Appendix B is the Affidavit of Ron Baldwin, Chief Information Officer for the State of Montana, State Information and Technology Services Division ("SITSD"). (App B, ifl). At COPP's request, the SITSD was able to search for and retrieve Steab' s work emails for the period from August 12, 2013 through November 1, 2013. (App B, if4c). The emails were retrieved in two 4 ( folders-- "Inbox" and "Purges." (App B, if5). There are just under 4,600 emails in the Purges folder. (App B, if5). As explained by Mr. Baldwin, Steab put the emails in the purge folder by (1) "deleting" the emails from her "sent items" or "inbox" email folder into a "deleted items" folder, and then (2) accessing the deleted items folder where she deleted them a second time. The email system would have warned her that "she was permanently deleting the email by doing the second delete." (App B, if5). Baldwin affirmatively states: "I know that the owner of the email box (Julie Steab) carried out the email permanent delete (purge) because it was done through the use of Ms. Steab's personal sign-in login ID and password. Under state policy, no one other than Julie Steab would have access to Ms. Steab's personal email account. Any administrative access would not provide the ability to carry out modifications to or deletions of the employee's emails. These deletions could only have been carried out by Ms. Steab." (App B, if6)(emphasis added). Attached hereto as Appendix C is the Affidavit of Mary Baker, Director of Candidate and Committee Services for the Office of the Commissioner of Political Practices. (App C, ill). Ms. Baker's Affidavit is clear. Julie Steab's email account that was turned over to her (Baker) only contained emails in the "inbox." (App C, if5a, Ex B). There were no emails in Steab's "deleted items" or "sent items" on October 28, 2013. (App C, if5a). 5 ( Since Steab's departure from employment with the COPP, her email account has been under the exclusive control of Ms. Baker. (App C, if5a). No other person, including Commissioner Motl, has had access to it. (App C, if5c). Ms. Baker ends her affidavit, stating: "The person who purged any and all emails from Julie Steab's email account was Julie Steab." (App C, i!6) (emphasis added). Viewing this spoliation allegation from the technical side, the SITSD (Baldwin affidavit) clearly and without question places the attempt to delete the Steab archive on Ms. Steab herself. Viewing the allegation from the office management side, Ms. Baker confirms the deletion of the Steab archive, places the deletion squarely on Steab, and establishes without question that COPP Motl has never had access to the Steab email file. In short, the factual predicate for Wittich' s motion is demonstrably false. 3. The Request for Production at issue has already been the subject of a motion to compel filed by Wittich. Apart from the fact that Wittich' s motion is based on an unsigned declaration containing a demonstrably false factual assertion, it is specious on other grounds as well. Specifically, the motion is based on Wittich's claim that the COPP has failed to properly respond to Request for Production No. 4 in Wittich' s First Discovery Requests to Plaintiff Commissioner of Political Practices dated May 8, 2014. Request No. 4 reads: Please produce a copy of all written correspondence between you and Bonogofsky, which includes any and all correspondence with previous 6 ' ' Commissioners. This is a very specific request for production. It seeks correspondence between the COPP and Debra Bonogofsky. There is no logical way to interpret this request for production as requiring the COPP to search for and produce the Steab email archive of almost 4,600 purged (by Steab) emails and approximately 1,300 emails in the in box. Further, on July 15, 2014, Wittich filed a Motion to Compel, covering this and several other requests for production as well as certain interrogatories. (Affidavit of Jaime MacNaughton attached as App LJ, ii4). Wittich, in his motion to compel briefing (Dkt. #72), argued that "[t]he sole purpose of issuing requests was to obtain information relied upon by the COPP in rendering the Sufficiency Decision and in filing the present civil Complaint against Wittich." Id. Wittich made no claim in his motion to compel that Request for Production No. 4 covered the Steab archive, nor could any reasonable reading of Request for Production No. 4 be perceived to contain such a request. On December 5, 2014, this Court denied Wittich's motion to compel. (Dkt. #151.) The consequence of this ruling is that the Court has ruled that COPP's response to this request for production stands as appropriate, subject, of course, to a duty to supplement under Rule 26, MRCivP. In short, Wittich cannot point to any discovery request whereby the Staeb archive should have been produced, which is obviously an important predicate before accusing a litigant of intentionally destroying discovery materials. 7 If Ms. Steab is really such an important witness and her email archive is such "key evidence," then one would think that Wittich would at least have requested production of her email archives during discovery. He did not, and hurling unfounded accusations of spoliation by the COPP does not change that fact. 4. Wittich failed to Meet and Confer. If Wittich truly believed that the Steab archive should have been produced in response to Request for Production No. 4, he was obligated to "meet and confer" after which, if unsatisfied, he could file a motion to compel. See Rule 37(a)(1), MRCivP. He did not. Instead, Wittich leapfrogged the discovery rules and went straight to sanctions, claiming not only that the COPP failed to produce the Steab archive but that Motl intentionally destroyed it. This is simply not true, and serves as further evidence that Wittich' s filing was not interposed for a legitimate purpose, but rather to harass and multiply these proceedings. See Rule 11, MRCivP. 5. Correspondence with Bonogofsky has been available or made known to Wittich for 18 months. Wittich argues that "Steab' s email archives should contain emails between her and Motl regarding the investigations of Debra Bonogofsky' s complaint against Dan Kennedy, as well as the series of investigations initiated by Commissioner Motl against people similarly situated." (Wittich Br£, pg. 12). Again, emails between Steab and Motl on any subject are not within the scope of 8 ' Request for Production No. 4, which seeks production only of correspondence between the COPP and Bonogofsky. Nevertheless, attached as Appendix D hereto is the Affidavit of Jaime MacNaughton, General Counsel for the Office of the Commissioner of Political Practices. The undersigned would direct the Court's attention to App D, 112, where General Counsel MacNaughton states: "On August 12, 2014, the Commissioner provided access to the investigative files for all of the 2010 candidates by hard copy inspection along with a withholding log identifying the privilege or privacy asserted." Wittich has never bothered to come to the COPP office and inspect these files. (App D, if7). Paragraphs 8-12 of Ms. MacNaughton's Affidavit (App D) likewise make it clear that the Dan Kennedy file, including folders compiled by Steab herself, has been available for inspection by Wittich since August of 2014. To date Wittich has never come to the COPP office to review or inspect these documents, nor has Wittich ever objected to or challenged the claims of privilege, privacy or work product asserted in the withholding logs associated with the Kennedy file. (App D, ifif9, 12, 13). The fact that Wittich has never bothered to review, inspect or copy the discovery, including Steab' s own folders, that have been available for 18 months makes Wittich' s spoliation allegation even more ridiculous. 6. Wittich's reference to Commissioner Vaughey's decision in Mont-PIRG is deliberately misleading. 9 On pages 8 & 9 of his brief, Wittich argues that Motl has himself been chastised by former Commissioner Vaughey in the Mont-PIRG matter, as though this somehow proves destruction of evidence in this case. Such allegations only further demonstrate that this motion was filed for an improper purpose. What Wittich fails to note is that the Mont-PIRG decision was later modified and many of the findings against Motl were withdrawn. See Settlement Stipulation and Release of All Claims, attached as App E. In any event, Motl' s conduct is not at issue here, despite Wittich' s continued efforts to have it be so. 7. Wittich and his counsel's conduct here and elsewhere is wholly inappropriate; the COPP's Rule 11 Motion will be forthcoming. Litigants and their attorneys are not allowed to file motions without factual or legal basis, nor are they allowed to file pleadings designed to harass the other party. Rule 11, Mont. R. Civ. P. Yet, that is what happened here. This motion is simply another attempt by Wittich to distract the Court's attention from the merits of the case and to lash out at the COPP. Having failed in his multiple attempts to make this a case of prosecutorial bias or selective prosecution, 1 Wittich now seeks to make this a case between a disgruntled employee who attempted to destroy her own email files (and lied about it) and Commissioner Motl. 1 See pgs 6-8 of judge Sherlock's Order on Various Motions dated October 20, 2015, wherein he discusses Wittich' s view that he is the subject of selective prosecution and his attempt (which judge Sherlock denied) to make this an affirmative defense. Wittich's approach to this case will be more fully explained in COPP' s motion for sanctions that will be filed. 10 This latest desperate attempt to distract attention from the real issues at hand goes beyond the bounds of what the COPP can accept as a reasonable litigation strategy. To accuse the COPP of conduct amounting to a felony, on the basis of no more" evidence" than an unsigned declaration and misstatements about what has actually been requested and provided in discovery, and without ever having attempted to informally resolve the matter, is sanctionable conduct that will be addressed by the COPP in a forthcoming motion for sanctions. It is up to the Court to put an end to this nonsense, once and for all. CONCLUSION For the reasons stated above, the COPP respectfully requests that the Court deny Wittich' s Alternative Motion to Dismiss, or in Limine, re Spoliation of Evidence. Further, for the reasons to be set forth in the COPP' s forthcoming Motion for Rule 11 Sanctions, the Court should give Wittich and his counsel opportunity to show cause for why sanctions should not be entered against them. DATED this 1!f day of February, 2016. Gene R. Jarussi, S ecial Attorney General, representing COPP 11 CERTIFICATE OF SERVICE I hereby certify that I have served in the manner noted a true and correct copy of COPP' s Brief in Response to Wittich' s Alternative Motion to Dismiss, or in limine, re Spoliation of Evidence on counsel of record at the addresses listed below this CC[- day of February, 2016. Michael Rabb Wittich Law Firm, PC 602 Ferguson Ave., Ste 5 Bozeman, MT 59718 [x] U.S. Mail [] Express Mail []Fax [] Federal Express []Email [] Hand Delivery Quentin M Rhoades Nicole Siefert Rhoades & Siefert, P.L.L.C. 430 N. Ryman, Second Floor Missoula, MT 59802 [x] U.S. Mail [] Express Mail []Fax [] Federal Express [] Email [] Hand Delivery 12 ' DECLARATION OF JULIE STFAB Per Mo~'T. Coo£ ANN.§ 1-6-105 the undersigned declares under oath as follows: 1. I mn over i8 years of age and competent to testify as to the matters herein. The mutters described herein are personally known to me. If I were called to testify under oath, I would testify cousistcntly with the matters contained herein. 2. I was lhe staff Investigator for the Montana Commissiotler of Political Practices ("COPP") from January 2011 throi.1gh October 2013. I provided contract investigator services to COPP from 1996 thro\tgh 2002 while I was employed "ith the Montana Attornc')' General, Agency Legal Services Bureau. 3, I sent and received a great deal of email while employed with COPP. :V!y email address was ktmih@!J.lj.g_QY. 4. 1 did not delete iny COPP email archive folder (or any other folder) when I ]('ft the Agency. 5. An.v of my email that was deleted should still be backed up. 1 wlls informed by an employee of the State of Montana .Internet Technology Se1vices Division ("ITSD''), that all email from Stote of Montana email accounts such as mine is backed up daily and stored for seven to ten years at a remote facility in Milc.s City, Montana. Tn the best of my recollecticn, the ITSD employee who provided that information to me' \Ytls Irv Va\'ruska. 6. l have no personal knowledge of the !TSD email backup system; however, if the course of an official investigt\tion and related convcrsution with the ITSD employee, the infonnation set forth in paragraph five above is the information l \\US given. 7. Based on the informr.tion from :he JTSD employee, it is my1111de1·:>tanding Exhibit C-1 that if anyuno With access to my COPP email deleted my archive folder, the email should still be recoverable from the off-site baclmp archives in Miles City, Montana. 8. To the best of my knowledge, if my COPP email archives are not avni!able, it is most likely because someone deleted them frnm my computer and/or from the backup systt\m. 9. Because I was concerned about Commfasioner Moll directing investigations and initiating complaints, 1 made a deliberate effort to communicate with hi111 ''ia email so I would have a record of those conversations and his directives to n1e. I printed many of those cmnils and put them in my desk. v\'llGn I left COPP, most of the emails I had printed were missing; however, a collple were there with some ot the direc'th•cs from Commissioner Motl. 10. My email ~rchiws should contain emaihi be\1veen myself nncl Commissioner Motl regarding the Bonogofsky, et al., investigations as well as investigations initiated by Cornmib·sioner Motl against people like .Joel Boniek. My email archives should also include emails between myself and other COPP st,, ff regarding my concern over handling of investigations by Commissioner Motl. l DECLARE UNDER PENALTY OF PERJURY THAT Trm FOREGOING !S l"RUE AND CORREC'f. ' . Executed this ...',Zi.:'.'. day of.January, 2016, in Montana l1\y, Jefferson County, State of Montana. Exhibit C-2 STATE OF MONTANA ) ) COUN'IY OF LEWIS AND CLARK ) SS. Ron Baldwin, being duly sworn and upon his oath, deposes and says: 1. I am a full time State of Montana employee, holding the position of Chief Information Officer for the State of Montana, State Information and Technology Services Division, Department of Administration (SITSD). 2. On January 26, 2016, Jonathan Motl asked SITSD to retrieve, if possible to do so, the June 1 to November 1, 2013, work emails of a former state employee, Julie Steab. 3. As part of my CIO responsibilities I oversee operations of the State of Montana's employee email system, including storage and retention systems for emails. 4. I directed the retrieval of email as follows: a. The State of Montana routinely maintains all email stored in its system until an action is taken by the user to permanently delete emails. Once permanently deleted by the user, emails may be recovered for a period of 14 days, after which time the email is permanently removed from state storage systems and cannot be recovered. Email not permanently deleted by its user is regularly replicated to the Miles City data center for disaster recovery purposes. There is no general ten year purge associated with the Miles City data center records. The Miles City data center is maintained for disaster recovery only and is not available for specific data recovery such as for Ms. Steab's email. b. On a further routine retention basis, an employee (including Ms. Steab) is responsible for preserving their work emails as an archive, doing so by moving their emails from active use (in, sent and deleted boxes) into a personal stored archive folder. Any employee (including Ms. Steab) can archive whatever is in their active email folders by placing an archive file on an office shared drive or on an external device, such as a thumb drive. To do this the employee would move one or all of the three folders (the inbox is one folder) and then archive the results. I have interviewed Mary Baker and it is my understanding that there was no archive or other external file saved by the employee. c. Another, but non-routine, level of email retention maintained by SITSD existed for the COPP's office. I directed that this email source be examined, and this examination led to a retrieval of Ms. Steab's 2013 work emails from August 12, 2013 through November 1, 2013. 5. I have attached a copy of the screen print for the email retrieval of Ms. Steab's August 13 through November 1, 2013 email. That screen print shows that M;.si!I.Siitiieliiabil'iis----.. Page 1of2 emails were retrieved in two folders, "Inbox" and "Purges." Mary Baker's affidavit addresses the inbox folder. The purge folder contains 4,591 emails. These emails consisted of Ms. Steab's work emails generated between August 12 and November 1, 2013. These emails ended up in a purged folder by two deliberate actions of Ms. Steab. Ms. Steab first "deleted" the emails from her "sent items" or "inbox" email folder into a "deleted items" folder. Second, Ms. Steab accessed her deleted items folder where she deleted the email a second time after being warned that she was permanently deleting the email by doing the second delete. This second delete action normally stages the email for permanent delete witliin 14 days after which it is lost for retention. However, a special email hold managed by SITSD (not by the COPP) allowed retention of some of the Steab email. 6. I know that the owner of the email box (Julie Steab) carried out the email permanent delete (purge) because it was done through use of Ms. Steab's personal signin login ID and password. Under state policy, no one other than Julie Steab would have access to Ms. Steab's personal email account. Any administrative access would not provide the ability to carry out modifications to or deletions of the employee's emails. These deletions could only have been carried out by Ms. Steab. Dated this ~ref day of February, 2016. ~~~? •r Ron Baldwin Subscribed to and sworn to before me this Ron Baldwin. (Notarial Seal) VANESSA HOPE SANDDAL NOTARY PUBLIC for tne S!ate of Montana Residin~ at Helena, Mo:itana My Comm·1ssion Expire. Marci\ 16, 2019 '? ~ day of February, 2016 by ~~~~~Ek_ Notary Public~fMontana Residing at , Montana My Commission Expires ":Sf1t'i,/t9 I Page2of2 Purges - NoCaz:c - rv1ic1 I Rt ply l I .::~ ~ Mr•ting ~IM• Reply Forward .__ ~More• All New [> Delete ------.. ·c.. -Viii t:L~i ti! Ni-i.Uti"DiUWii. --- --~­ -- . -- .... - -... - .. ...... ..... -......... ... -.. --Political Activity .t.aw1Po1il:lcal taw/Eledion I.aw• Mon. 4-13 pOlil:lcal i.w llnks B Popular in your networl! 4/1212015 - Search Folders ~C.0- ~T- " .. 1 I oc ( ._ t s~nt To: 41W2015 From: Steve Sem B Goo!Jle Alerts 8 G B 8 ... B B liill calend• " Nie Benelils Question> 4/12/2015 Spring Benefit Expo Pre-stntations Cance-led B steve Sern t:.i Vtrsions Ci S•ntft•ms ~ Ci Sync luues • l·~·i @Casey_Schre-inertweeted; #MillionsOfMont ... 8 Ci ~(1957) l'.p ' Lia Ci Drafts ~ Ci lnbox (127 SJ Ci lnfect•c! Items Ci Junk E-mail Ci Outbox Ci Quarantin• .. Ci Rocoverabl• Items Ci Calendar Logging Ci Drlrliom RSS Fffds j Newest on top Older ~ @ Deleted Items Ci ~ls='="='c=h=A=l=lh=1=a=il=lt=e=m=s=IC=t=rl=-=~=======================jJc='I l----------~----1 .. NoCase ./De ''!;'Cr Quick Steps Arrange By: Date Ci WTP ltftr NAGR Brownl Ci Yancey schools complaints ~ tJ;J Search Fold•rs ~To CSICT complaint ~Team E-mail ~ Reply & Del et• Respond ( Favorites ~ 41W2015 Google Alort - "commlssionor of political pract ... Google Alerts 4111/2015 Googlo Al•rt - montana logislaturo 2013 1poci... Popular in your network 4111/2015 @dpogrtba tw••ted: Wh•ntvorl h•ar Ropros ... Twitter 4111/2015 Follow J.M. Brown, Whitney Btrmfl ana Noth ... FRONTLINE 4111/2015 In C11st You Mis5ed It 'V'emen Edition Popular in your networl! 4111/2015 @MiktMilltrHOS4 twotttd: #ff RT CJ•nica_R ... Google Alerts 4110/2015 Google Alert - american tradition partnership 9 Googlo Alort1 4110/2015 Google Alert - ·commissioner of political pract ... B ProPulllica 4110/2015 For Darren Sharp or, a Place in Prison. But in H... G Ponuc.i ActMty l.nr/Pollllc.lll tawlElecllon ~•• A.M. political law links 4-10 t!r = STATE OF MONTANA COUNTY OF LEWIS AND CLARK ) ) ) SS. Mary Baker, being duly sworn and upon his oath, deposes and says: 1. I am a full time State of Montana employee, holding the position of Director of Candidate and Committee Services for the Office of the Commissioner of Political Practices (COPP). 2. Julie Steab was a full time staff person (investigator position) for the COPP in October of 2013. I was not Julie Steab's supervisor in October of 2013. Jonathan Motl was her supervisor. I was and am the person who handles Human Resources issues for the COPP. 3. On Friday night, October 25, 2013 Julie called me on my private cell phone to tell me that she was thinking about resigning her position at the COPP. I told her to think on it and let me know. 4. On Sunday October 27, 2013 Julie called me to tell me that she had resigned and that she had cleaned her desk out over the weekend and put a thumb drive on my desk with the contents of her computer on it. 5. On Monday October 28, 2013 I examined Julie's desk. It was completely clean. I had no access to Julie's email account prior to October 28, 2013. On October 28, 2013 I wrote a directive (called a "ticket") to the State of Montana Information Technology Services forwarding Julie's e-mail account to me. Julie's account was worked on by IT services (see Ex. A for a list of tasks) and then forwarded to me. I know the following to be true about Julie's email account based on my review of Julie's account once it was forwarded to me: a. Julie's account only had emails in the "inbox" folder on October 28, 2013. There were no emails remaining in Julie Steab's "deleted items" or "sent items" folders on October 28, 2013. I have maintained Julie's email account on my desktop since I had it forwarded and I am attaching a copy of Julie's email account portal as Exhibit B. As it shows, emails are listed only in the inbox folder. b. I answered a few work emails that came in to Julie's account after October 28, 2013 and those emails I wrote appear as additions in Julie's account. Outside of adding a few emails I have not otherwise altered, deleted, changed or in any modified Julie's inbox, delete, sent or other emails folders as those folders existed in the email account that was forwarded to me on October 28, 2013. c. Julie's email account has been under my exclusive control since October 28, 2013. There is no other person in this office, including Commissioner Motl, looked at Julie's email account since it was forwarded to me on October 28, 2013 . ~-------.. Page 1of2 d. I have reviewed the contents of Julie's email account as it was forwarded to me when she resigned from the COPP on October 28, 2013. As forwarded, Julie's email account was in the form that she left it in when she resigned. Julie's email account only had emails in the inbox and those emails consisted only of standard notices, alerts and other such documents. There were and are no work emails in Julie's email account other than the emails I added after October 28, 2013. 6. I have reviewed the purged file on Julie Steab's email archive recovered by ITSD. There are hundreds of Julie Steab emails that were deleted (and purged) from the Julie Steab email account before it was forwarded to me. I was forwarded Julie Steab's email account, upon termination of Julie's employment by resignation on October 28, 2013. Prior to October 28, 2013 the only person who had access to or control over Julie Steab's email account, including the ability to purge emails, was Julie Steab. The person who purged any and all emails from Julie Steab's email account was Julie Steab. f~wo..~'-'::, day of JanHaey, 2016. ~~eN~k1\s<;,Subscribed to and sworn to before me this Mary Baker. (Notarial Seal) ~~ ~ day of Jannaey, 2016 by ~PJ::~ Notary Public for the State of Montana l-+e;c....._a. , Montana Residing at MyCommissionExpires '31\(pl \9 I VANESSA HOPE SANDCAL NOTARY PUBLIC for!he Stale of Montana Reaiding at Helena, Montana My Commlulon Expires Marcll 16, 2019 Page2 of2 I Case detail Report Id: 70998 Description: CPP - Access to Former Employee Mailbox Reference: Type Description: Seivice Request Type Id: Service Request Category Id: Exchange Servers Category Description: (Email - 2nd Level Support) - Exchange Servers ClosureCode Id: Technician resolved ClosureCode Description: Issue was resolved with technician action Organization 10/29/2013 14:03:55 cz2892 Mandeville, Tom Service Desk Section Case responsibility automatically assigned based on Category: Email 1st Level Support;/ 10/29/2013 14:03:56 cz2892 Mandeville, Tom Service Desk Section Case created. Current case responsibility: Email 1st Level Support/ 10/29/2013 14:03:56 cz2892 Mandeville, Tom Service Desk Section New case. Current Case Category: Email Client 10/29/2013 14:11:00 cz2892 Mandeville, Tom Service Desk Section Case responsibility changed from {Email 1st Level Support/} to {Active Directory - Level 10/29/2013 14:11:00 cz2892 Mandeville, Tom Service Desk Section Category changed from {Email Client} to {Active Directory} 10/29/2013 14:11:00 cz2892 Mandeville, Tom Service Desk Section Case responsibility automatically changed based on Category from {Email 1st Level Support/} to {Active Directory - Level 2/} 10/29/2013 14:22:11 (20321 Kaufman, Kyle Citrix Support Case has been viewed 10/29/2013 14:39:01 CZ0321 Kaufman, Kyle Citrix Support Case responsl:>lllty changed from {Active Directory - Level 2/} to {Email - 2nd Level Support/} 10/29/201314:39:02 CZ0321 Kaufman, Kyle Citrix Support Category changed from {Active Directory} to {Exchange Servers} 2/} Pr1nted on: 1/26/2016 Page: 1 of s EXHIBIT I A .. 10/r:9/2013 14:39:02 CZ0321 10/29/2013 14:42:53 ~ Ca~nsibility aut · lly changed base Category from {Active Directory - Level 2/} to {Email - 2nd Level Support/} Kaufman, Kyle Citrix Support 0:0377 Mitschke, Karl Email - 2nd Level Support Case has been viewed 10/29/2013 14:43:32 CX0190 Parrett, Sue Service Desk Section 10129/2013 14:45:15 CX0377 Mitschke, Karl Email - 2nd Level Support Case status changed from {Open} to {In 10/29/2013 14:45:16 CX0377 Mitschke, Karl Email - 2nd level Support Case responsibility Case has been viewed Process} changed from {Email 2nd Level Support/} to {Email - 2nd Level Support/CX0377} 10(29/2013 14:49:46 CX0377 Mitschke, Ka·I Email - 2nd Level Su;:iport Case responsi:iility changed from {Email - 2nd Level Support/CX0377} to {Email 1st Level Support/} 10/30/2013 07:23:22 CX1124 Boggess, Bart Service Desk Section Case has been viewed 10/30/2013 10:07:16 cz2892 Mandeville, Tom Service Desk Section Case has been viewed 10/30/2013 10:07:53 cz2892 Mandeville, Tom Service Desk Section Case responsibility changed from {Email 1st Level Support/} to {Service Desk Section/cz2892} 10/30/2013 10:20:19 cz2892 Mandeville, Tom Service Desk Section Closure code changed from {}to {Technioan resolved} 10/30/2013 10:20:21 c:z2892 Mandeville, Tom Service Desk Section Case status changed from {In Process} to {Solved} 10/30/2013 12:06:45 PO BAS Application Server User Service Desk Section Case status changed from {Solved} to {Closed} 10/30(2013 12:06:45 POBAS Application Server User Service Desk Section End User indicated Case Solved via email reply 01/25/2016 09:20:40 CX0154 Taranik, Kevin Desktop Support Case has been viewed Opened by User Group DOA ITSD Service Desk section Staff Responsible User Coordinator User Group Service Desk Section DOA ITSD Service Desk Section Staff Coordinator cz2892 Mandeville, Tom Printed on: 1/26/2016 Page: 2 of 5 Urgency 3·2to4days Within 2 - 4 Days Impact 5 • Individua: 1 Person Priority 4 4 ·Low Time limits met 10/30/2013 11:03:56 Internal Start Time limits met 10/30/2013 13:03:56 External Start Time limits met 10/31/2013 08:03:56 Internal Solved Time limits met 10/31/2013 12:03:56 External Solved lime limits met 10/31/2013 10:30:21 User defined 24h ·Email End User again 1 day after Case was Solved Time limits met 11/01/2013 11 :20:21 User defined Close the case 2 days after case has been solved Pnnted on: 1/26/2016 Page: 3 of 5 om an ev called Mary, connected remotely to her machine, and showed her how to open a mailbox. 10/29/2013 2:48:38 PM Karl Mitschke Granted permission as requested 10/29/2013 2:39:01 PM Kyle Kaufman believe this should go to exchange server admins 10/29/2013 2:09:20 PM Tom Mandeville ! spoke with Sue Parrett and because the employee has resigned and it already gone, we can grant Mary full access to the mailbox without needing a records request. On Sues advice I am assigning the case to AD Level 2. 10/29/2013 2:04:32 PM Tom Mandeville Disabled the account. 10/29/2013 2:03:56 PM Tom Mandeville Julie Steab (CT5744) has resigned. They need to have her account disabled and get access to her mailbox items. Printed on: 1/26/2016 Page: 4 of 5 , om an ev She was granted access to the mailbox, and I showed her how to open the mailbox. Printed on: 1/26/2016 Page: 5 of 5 .. I'""'' 1 Arr ~Sent Items .. @ Deleted; Items (416) ------ - - -- -- --------- -- - -- -- -- -- ---- - - --- - ---- -- - - - ---- -- - - -- --- ---- -- - - - -------- . --------------------------- Qll ---------.-.------ ·-·- - Drafts Q;j Sent Items ® Deleted :rtems L&J Junk E-Mail l{di Outbox ..ii Steab, Julie [> ~ Inbox (1317) Qll Drafts lf:j Sent ltem,s ® Deleted Jtems La Infected items l[j Junk E-mail l{di Outbox ~ Quarantine !'.ii RSS Feeds EXHIBIT ~ c:om.cts ~Talcs 16 ... G Jaime MacNaughton Attorney for the Commissioner of Political Practices 1205 S•h Avenue P.O. Box 202401 Helena, MT 59620-2401 406-444-2942 (Tel) jmacnaughton@mt.gov Gene R. Jarussi John Heenan BISHOP & HEENAN 1631 Zimmerman Tr. Billings, MT 59102 genejarussi@bishopandheenan.com john@bishopandheenan.com Special Attorneys General MONTANA FIRST JUDICIAL DISTRICT COURT LEWIS AND CLARK COUNTY The COMMISSIONER OF POLITICAL PRACTICES FOR THE STATE OF MONTANA, through JONATHAN R. MOTL, acting in his official capacity as the Commissioner of Political Practices, Cause No. BDV-2014-251 Affidavit of Jaime MacN aughton Plaintiff, v. ARTHUR "ART" WITTICH, Defendant. STATE OF MONTANA COUNTY OF LEWIS AND CLARK ) ) ) SS. Jaime MacNaughton, being duly sworn and upon his oath, deposes and says: 1. I am an attorney and serve as General Counsel for the Office of the Commissioner of Political Practices. The information contained in this Affidavit is based on personal knowledge of the matters which I assert herein. Page 1 of6 I 2. On August 12, 2014, the Commissioner provided access to the investigative files for all of the 2010 candidates by hard copy inspection along with a withholding log identifying the privilege or privacy asserted. To date, Mr. Wittich has failed to inspect the contents of his investigative file at the COPP office. Mr. Wittich's investigative file was opened on January 24, 2014. 3. Not a single document in Mr. Wittich's investigative file involved any work product produced by Ms. Steab. 4. Mr. Wittich filed a Motion to Compel with the Court on July 15, 2014 in which Mr. Wittich argued "[t]he sole purpose of issuing requests was to obtain information relied upon by the COPP in rendering the Sufficiency Decision and in filing the present civil Complaint against Wittich". Brief in Support of Motion to Compel, p. 3, (Case Register 72). Specifically Mr. Wittich moved to compel responses to Interrogatory Nos. 1, 2, 3, 4, 7, 8, 9, Request for Production Nos. 1, 2, 3, 4, 5, and 6, Request for Admissions No. 3 and 4 in Wittich's First Discovery Requests. See Brief in Support of Motion to Compel, Exhibit 1, id. 5. Mr. Wittich later withdrew his Motion to Compel the responses to Interrogatory Nos. fn. 2 1, 2, and 7. See Wittich Reply Brf. in Support of Motion to Compel, (Case Register 95). 6. On December 5, 2014 the Court issued an Order on Discovery Issues in which it denied Wittich's Motion to Compel, denied the Commissioner's First Motion for a Protective Order with exceptions, and granted the Commissioner's Second Motion for a protective order (Case Register 151). The Court also directed the parties to meet and confer regarding the 5,000 withheld documents, to discuss the claims of privilege. Page 2 of6 • 7. Mr. Wittich has not further objected to the privilege or privacy asserted as to any of the other 8 candidate's investigative files on the documents which were identified and produced for hard copy inspection on August 12, 2014. To date, Mr. Wittich has failed to inspect the contents of any of the other eight 2010 candidates investigative files at the COPP office. 8. On August 12, 2014, the Commissioner identified 245 documents from the Kennedy investigative file which were subject to privilege or privacy. See attached Exhibit A, "WHKENN- Investigative Files 2010 Candidates, COPP's Responses, Attorney/Client, Work Product or Privacy Privilege Log". 9. Of the 245 documents identified, 241 involved Ms. Steab's investigative work product. To date, Mr. Wittich has not reviewed the documents produced for hard copy inspection, nor objected to the privilege or privacy asserted in the withholding logs on the identified documents. 10. On February 2, 2016 I personally performed a hard copy inspection of the Kennedy file which had been produced to Mr. Wittich on August 12, 2014. The source of all of the follovl'ing documents are 790 hard copy documents maintained in the COPP's files as a part of our business records: Folder 1 - "Kennedy - Misc. - Julie Thumb Drive" Contents: 50 produced hard copy, WHKenn 1-50, 47 total withheld attorney client privilege or work product log Folder 2 - "Bonogofsky v. Kennedy - Steab Investigative File" Contents: produced hard copy 248, WHKenn 51-93 and 94-184 withheld attorney client privilege or work product log Folder 3 - "Bonogofsky v. Citizens Right to Work - Complaint File" Contents: produced hard copy 76, WHKenn 104-227 withheld attorney client privilege or work product log Folder 4 - ""Bonogofsky v. National Gun Owners - Complaint File" Contents : produced hard copy 54, WHKenn 185-203 withheld attorney client privilege or work product log Folder 5 - "Bonogofsky v. NGA, AAF, and MCRTW - Complaint File" Page3 of6 ' Contents: 64 hard copy documents and envelopes, 5 Certified mail envelopes, 3 certified mail return receipt cards, WHKenn 231-233 withheld attorney client privilege or work product log Folder 6 - "Bonogofsky v. NGA, AAF, and MCRTW - Investigative file" Contents: 8 hard copy documents and envelopes, one postit, 3 certified mail return receipt cards Folder 7- "Bonogofsky v. Kennedy - Jon Notes" Contents: 72 hard copy documents COPP cell phone records COPP v. Kennedy, COPP-2010-CFP-015 Complaint file, "Public file" Contents: 218 hard copy documents, 1 large envelope and 2 certified return receipt cards 11. The folders listed above were maintained by Ms. Steab as a part of her duties as the COPP Investigator. 12. Of the above 790 Kennedy investigative file documents in paragraph 9 that were produced without being subject to a claim of privilege, I estimate that 244 documents contained direct work product such as emails, communications and documents reviewed by Ms. Julie Steab in the course of her investigation. To date, Mr. Wittich has not reviewed the documents produced for hard copy inspection. 13. On August 21, 2014 the Commissioner provided access to the current and former employee emails which were responsive to Mr. Wittich's request for identification of the information by hard copy inspection along with a withholding log. To date, Mr. Wittich has not reviewed nor objected to this production. 14. The Commissioner identified 1,050 documents from the emails of current and former employees which were subject to privilege or privacy. See attached Exhibit B, "Emails Withholding Bates Stamped, COPP's Responses, Attorney/Client, Work Product or Privacy Privilege Log". 15. Of the 1,050 documents identified, 6 email involved Ms. Steab's investigative work product which were produced from other employee's archives. To date, Mr. Wittich has not reviewed the documents produced for hard copy inspection, Page4 of6 nor objected to the privilege or privacy asserted in the withholding logs on the identified documents. 16. On February 2, 2016, I personally performed a hard copy inspection of the Email files that had been produced to Mr. Wittich on August 21, 2014. The source of all of the following documents are the 1329 hard copy documents maintained in the COPP's files as a part of our business records: Folder 1 - "Email Withholding Bates Stamped Material - Now Produced" Contents: 60 documents and emails produced hard copy Folder 2 - "Pearson Emails - Box 13" Contents: 21 documents and emails produced hard copy Folder 3 - "Johnstone Emails - Box 13" Contents: 35 emails produced hard copy Folder 4 - "Bennett Emails - Box 13" Contents: 153 emails and campaign finance reports produced hard copy Folder 5 - "Email BS #1-10" Contents: 10 emails and responses produced hard copy 17. Of the above 279 email documents referred to in paragraph 16 that were produced without being subject to a claim of privilege, I estimate that 58 documents contained direct work product such as decisions, emails, communications by Ms. Julie Steab. To date, Mr. Wittich has not reviewed the documents produced for hard copy inspection. 18. I am aware of only one date on which Mr. Wittich or his counsel appeared and conducted an inspection of the estimated 30,000 responsive documents produced by the COPP in this matter. 19. Mr. Rabb personally inspected the WTP Graybill box of documents for approximately 3 hours on the afternoon of November 13, 2014. Mr. Rabb did not request copies of any of the documents that he inspected. See Exhibit C, List of Page5of6 Documents copied on November 13, 2014 reflecting that only Jim Brown requested copies. 20. The two hard copy inspections I performed on February 2, 2016, including the production of this detailed affidavit of the documents took me a total of 3 hours. Dated this _tr__ day of February, 2016. ~a~,~~D ~ Subscribed to and sworn to before me this Jaime MacNaughton. (Notarial Seal) VANESSA HOPE SANOOAL NOTARY PUBLIC fer the Stale of Montana ~ day of February, 2016 by Notary Public for the State of Montana Residing at -~rte~~~~~~--' Montana My Commission Expires Residing at Helena, Montana My Commission Exp1n11 Marcil 16, 2019 Page6 of6 B I/ I '7/19 • Bates No. WHKENN 1-7 WHKENN WHKENN - Investigative Files 2010 Candidates COPP's Responses Attorney/Client, Work Product or Privacy Privilege Log Recipient Document Date of Author Subject Matter Type Document Jon Motl, Jim Investigative work product List Julie Steab, Investigator Scheier, Jaime MacNaughton Webpage 07/31/08 8-10 c The Colorado Independent WHKENN 11-34 Memo Julie Steab, Investigator Jon Motl, .Jim Scheier, Jaime MacNaughton Investigative work product WHKENN 35-41 Memo Julie Steab, Investigator, Jon Motl Julie Steab, Investigator, Jon Motl Investigative work product WHKENN 42-50 List Julie Steab, Investigator Jon Motl Investigative work product ........ ~i=i Privilege Asserted Attorney Client Privilege Work Product Page 1 of7 Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product ---, (.., Bates No. WHKENN 51 WHKENN - Investigative Files 2010 Candidates COPP's Responses Attorney/Client, Work Product or Privacy Privile_ge Log Document Date of Author Recipient Subject Matter Type Document Chart Julie Steab, Jon Motl Investigative work product Investigator WHKENN 52-58 Memo Julie Steab, Investigator, Jon Motl .Julie Steab, Investigator, .Jon Motl Investigative work product WHKENN 59 Chart Julie Steab, Investigator Jon Motl Investigative work product WHKENN 60-69 List Julie Steab, Investigator Jon Motl, Jim Scheier, Jaime MacNaughton Investigative work product Jon Motl, Jim Scheier, Jaime MacNaughton Investigative work product WHKENN 70-71 Memo 09/30/13 Julie Steab, Investigator Page 2 of7 Privilege Asserted Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product r (.. Bates No. WHKENN 72 WHKENN - Investigative Files 2010 Candidates COPP's Responses Attorney/Client, Work Product or Privacy Privilege Lo__g_ Recipient Document Date of Author Subject Matter Document ._.!Il>_e Memo Julie Steab, Jon Motl, Jim Investigative work product 09/23/13 Investigator Scheier, Jaime MacNaughton Julie Steab, Investigator Jon Motl, Jim Scheier, Jaime MacNaughton Investigative work product WHKENN 73 Memo WHKENN 74 Memo 07/25/14 Julie Steab, Investigator Jon Motl, Jim Scheier Investigative work product WHKENN 75-87 Memo 07/25/14 Julie Steab, Investigator Jon Motl, Jim Scheier Investigative work product WHKENN 88-89 Memo 06/14/13 Julie Steab, Investigator Jon Motl, Jim Scheier Investigative work product - Page3 of7 Privilege Asserted Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product_ Attorney Client Privilege Work Product Attorney Client Privilege Work Product c (, WHKENN - Investigative Files 2010 Candidates COPP's Responses Attorney/Client, Work Product or Privacy Privilege~ Bates No. WHKENN 90-93 Document Date of Author Recipient _Dpe Document Document Jaime MacNaughton Subject Matter Litigation preparation WHKENN 94-108 Memo 05/03/12 Julie Steab, Investigator Jim Murry, Jim Scheier Investigative work product WHKENN 109-127 Memo 08/04/14 Julie Steab, Investigator Jon Motl, Jim Scheier Investigative work product WHKENN 128-146 Memo 05/03/12 .Julie Steab, Investigator Jim Murry, Jim Scheier Investigative work product WHKENN 147-158 Memo 01/25/12 Julie Steab, Investigator COPP, Jon Motl Page 4 of7 Investigative work product Privilege Asserted Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product (' (... • Bates No. ·WHKENN 159-173 ' WHKENN - Investigative Files 2010 Candidates COPP's Responses Attorney/Client, Work Product or Privacy Privileze Log_ Recipient Document Date of Author Subject Matter Document _l)'p_e Memo Julie Steab, Jon Motl Investigative work product 06/17/13 Investigator WHKENN 174-183 Memo 12/29/11 Julie Steab, Investigator Dave Gallik WHKENN 184 Letter 02/14/11 Jennifer Hensley William Biernat Memo 05/03/12 Julie Steab, Investigator Jim Murry, Jon Motl ~ 185-197 WHKENN 198-203 Memo 06/17/13 Julie Steab, Investigator Jon Motl Page 5 of7 Investigative work product Investigative work product Investigative work product Privilege Asserted Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product c (., • I Bates No. WHKENN 204-213 WHKENN - Investigative Files 2010 Candidates COPP's Responses Attorney/Client, Work Product or Privacy Privilege Log Author Recipient Document Date of Subject Matter Type Document Julie Steab, Jon Motl Memo Investigative work product 06/17/13 Investigator WHKENN 214-227 Memo 05/03/12 Julie Steab, Investigator Jim Murry, Investigative work product WHKenn 185-191' Double number Memo 05/03/12 Julie Steab, Investigator Jim Murry, Jon Motl Investigative work product WHKenn 198-203* Double number Memo 06/17/13 Julie Steab, Investigator Jon Motl Investigative work product WHKENN 228-230 Email ...._ 10/17/13 Mary Baker Privilege Asserted Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product c (.. Leo Gallagher J Page 6 of7 • Bates No. WHKENN 231-233 WHKENN - Investigative Files 2010 Candidates COPP's Responses Attorney/Client, Work Product or Privacy Privilege Log Document Date of Author Recipient Subject Matter Document ~e Letters Julie Steab Investigative work product 03/16/12 03/01/12 l Privilege Asserted Attorney Client Privilege Work Product C' (.. Page 7of7 ' Bates No. EMAILWI-I 1-4 Document -1'll!_e Email Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privile~e Lo__g_ Date of Author Recipient Subject Matter Document Jim Scheier Motl, Mac and Draft decision discussion 7/31/13 Baker -7/21/14 EMAILWH 5-6 Email 01/05/12 Jim Scheier Huff, Black, Gallik, Baker, Steab Settlement discussion EMAILWH 7-8 Email 02/25/11 Julie Steab Jim Scheier, Mary Baker Draft decision discussion EMAILWH 9-10 Email 8/5/11 Julie Steab Steve Brown, Jim Scheier, Mary Baker Draft decision discussion EMAILWH 11 Email 9/8/10 Dennis Unsworth Rob Hoffman, Mary Baker Draft decision discussion -.... ~ :c ml =i Page 1of16 Privilege Asserted Attorney Client Privilege Work Product Attorney Client Privilege Work Product Privacy, confidential Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Privacy, confidential r (.. EMAILWH 20 Email Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privilege Log Date of Author Recipient Subject Matter Document Dennis Tiffany Draft decision discussion 7/19/10 Unsworth Hoffman, Rob Hoffman, Jim Scheier, Steve Brown, Mary Baker Julie Steab Jim Scheier Draft decision discussion 12/19/11 EMAILWH 21-55 Email 12/21/10 Dennis Unsworth Jim Scheier, Mary Baker Draft decision discussion EMAILWH 56-57 Email 10/20/10 Dennis Unsworth Jim Scheier, Steve Brown, Mary Baker Draft decision discussion EMAILWH 58-60 Email 03/21/14 Bates No. Document ~e EMAILWH 12-19 - Email Jim Scheier, Jaime ' MacNaughton Jon Motl, Mary Baker, Vanessa Sanddal Page2 of16 Draft litigation Draft decision discussion Privilege Asserted Attorney Client Privilege Work Product c Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product (, J Bates No. Document Type EMAILWH 61-96 Email EMAILWH 97 Email B4WH 98-99 Email EMAILWH 100-156 Email EMAILWH 157-198 Email Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privilege Log Date of Author Recipient Subject Matter Document Jon Motl Jaime Draft decision discussion 03/27/14 MacNaughton, Jim Scheier, Mary Baker, Vanessa Sanddal Jim Scheier Jaime Draft decision discussion 3/13/14 MacNaughton, Jon Motl, Mary Baker, Vanessa Sanddal Jim Scheier Jaime Draft decision discussion 03/27/14 MacNaughton, Jon Motl, Mary Baker, Vanessa Sanddal Jon Motl Jaime Draft Decision MacNaughton, Jon Motl, Mary Baker, Vanessa Sanddal Jon Motl Jaime Draft decision discussion 12/13/13 MacN aughton, Jim Scheier, MaiyBaker Page 3of16 Privilege Asserted Attorney Client Privilege Work Product c Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product {.. Bates No. EMAILWH 199-237 Document Type Email EMAILWH 238-241 Email EMAILWH 242-285 Email EMAILWH 286-345 Email Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privilege Log Date of Author Recipient Subject Matter Document Jon Motl Jaime Draft decision discussion 03/27/14 MacNaughton, Jim Scheier, Mary Baker, Vanessa Sanddal Jon Motl Jaime Draft discussion 01/23/14 MacNaughton, Jim Scheier, Mary Baker, Vanessa Sanddal Draft decision discussion Jon Motl Jaime 01/20/14 MacNaughton, Jim Scheier, Mary Baker, Vanessa Sanddal Draft decision discussion Jon Motl Jaime 01/15/14 MacNaughton, Jim Scheier, Mary Baker, Vanessa Sanddal Page 4of16 Privilege Asserted Attorney Client Privilege Work Product c Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product (.. "l<:MAILWH 347-357 Email EMAILWH 358 Email EMAILWH 359-367 Email Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privilege Lo_g_ Date of Author Recipient Subject Matter Document Jon Motl Jaime Draft discussion 1/23/14 MacNaughton, Jim Scheier, Mary Baker, Vanessa Sanddal Jim Scheier Jon Motl, Draft decision discussion 2/03/14 Jaime MacNaughton, Mary Baker, Vanessa Sanddal Jon Motl Jaime Draft decision discussion 07/02/14 MacNaughton, Jim Scheier, Mary Baker, Vanessa Sanddal Jim Scheier Mary Baker Litigation discussion 01/04/12 EMAILWB 368-377 Email 11/07/13 Bates No. EMAILWH 346 Document -1YI!_e Email Jon Motl Jim Scheier, Jaime MacNaughton, M~Baker Page 5of16 Notice discussions Privilege Asserted Attorney Client Privilege Work Product c Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product c • Bates No. · EMAILWH 378-387 Document Type Email EMAILWH 388-393 Email EMAILWH 394-400 Email EMAILWH 401-407 Email EMAILWH 408-421 Email Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privilege Lo_£ Date of Author Recipient Subject Matter Document Jim Scheier Jon Motl, Draft decision discussion 12/05/13 Jaime MacNaughton, Mark Baker Jon Motl Jaime Draft decision discussion 12/13/13MacNaughton, 12/17/13 Jim Scheier, M::iry_ Baker Jon Motl Jaime Draft decision discussion 01/15/14MacNaughton, 1/21/14 Jim Scheier, Mary Baker, Vanessa Sanddal Jon Motl Jaime Draft decision discussion 01/20/14MacNaughton, 01/21/14 Jim Scheier, Mary Baker, Vanessa Sanddal Jon Motl Jaime Draft decision discussion 01/23/14MacNaughton, 03/31/14 Jim Scheier, Mary Baker, Vanessa Sanddal Page 6of16 Privilege Asserted Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product C' (., Bates No. EMAILWH 422-433 Document _!n>_e Email Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privile_g_e Log_ Author Date of Recipient Subject Matter Document Jaime Jon Motl Draft decision discussion 01/23/14MacNaughton, 04/04/14 Jim Scheier, Mary Baker, Vanessa Sanddal Jon Motl Jaime Draft decision discussion 03/27/14MacNaughton, 03/28/14 Jim Schcicr, Mary Baker, Vanessa Sanddal Jon Motl Jaime Draft decision discussion 04/01/14MacNaughton, 04/02/14 Jim Scheier, Mary Baker, Vanessa Sanddal Jon Motl Jaime Draft decision discussion 02/02/14MacNaughton, 02/03/14 Jim Scheier, Mary Baker, Vanessa Sanddal Privilege Asserted Attorney Client Privilege Work Product c I EMAILWH 434-440 Email EMAILWH 441-444 Email EMAILWH 445-452 Email Page 7of16 Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product (., Bates No. EMAILWH 453-464 Document -1:Yl!_e Email EMAILWH 465-471 Email EMAILWH 472-617 Email EMAILWH 618-676 Email l Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privilege Log Date of Recipient Author Subject Matter Document Jon Motl Jaime Draft decision discussion 04/15/14MacNaughton, 04/18/14 Jim Scheier, Marv Baker, Vanessa Sanddal Jon Motl Jaime Draft decision discussion 06/26/14MacNaughton, 07/08/14 Jim Scheier, Mary Baker, Vanessa Sanddal Draft decision discussion Jon Motl Jaime 01/15/14MacNaughton, 05/22/14 Jim Scheier, Mary Baker, Vanessa Sanddal Draft decision discussion Jon Motl Jaime 12/17/13MacNaughton, 03/27/14 Jim Scheier, Mary Baker, Vanessa Sanddal Page 8of16 Privilege Asserted Attorney Client Privilege Work Product ,,,.., Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product (., Bates No. Document -1'Yl!_e t-EMAILWH 677-745 Email EMAILWH 746-920 Email EMAILWH 921 Email EMAILWH 922-923 Email EMAILWH 924-928 Email Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Priva(,-y Privilege Log Date of Author Recipient Subject Matter Document Jon Motl Jaime Draft decision discussion 01/23/14MacNaughton, 04/04/14 Jim Scheier, Marv Baker, Vanessa Sanddal Postal Investigation Vanessa 03/17/14Sanddal inspector Public records search 03/19/14 containing drivers license numbers, bank account numbers, addresses, phone numbers and historical data Jaime Leo Gallagher, Litigation affidavit 04/11/14 MacNaughton Jon Motl, Vanessa Sanddal Jon Motl, Draft decision discussion Jaime 04/17/14 MacNaughton Jim Scheier Vanessa Sanddal, Mary Baker Litigation documents Christopher Jon Motl, 07/07/14Sweeney Andy Forsyth, 07/22/14 Debbie Braaten, Bruce Tutdvedt, Jim Murry Page 9of16 Privilege Asserted Attorney Client Privilege Work Product ("' Work Product Privacy, confidential Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product (., I Bates No. Document _'I)I>_e Email EMAILWH 929-930 ~MAILWH Email 931 Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privile_g_e ~ Date of Author Recipient Subject Matter Document Jon Motl Jaime Draft decision discussion 12/05/13 MacNaughton Jim Scheier, Mary Baker Jaime Jon Motl, Litigation 02/18/14 MacNaughton .James Scheier EMAILWH 932-939 Email 03/27/14 Jon Motl EMAILWH 940-941 Email 04/22/14 Jim Scheier EMAILWH 942-943 Email 05/19/14 EMAILWH 944 Email 04/22/14 Jon Motl, Jim Scheier Vanessa Sanddal, Mary Baker Jaime MacNaughton, Jon Motl Draft decision discussion Mike Black Jon Motl, Jaime MacNaughton Litigation Mike Black Jon Motl, Jaime MacNaughton Litigation l Page 10 of16 Litigation Privilege Asserted Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Privacy and confidentiall!Y_ Attorney Client Privilege Work Product Attorney Client Privilege Work Product C' (., Bates No. EMAILWH 945 Document _!rp_e Email Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privileg_e L~ Date of Author Recipient Subject Matter Document Jon Motl Mike Black Litigation 12/02/13 Privil~e EMAILWH 946-957 Email 12/05/1301/29/14 Jon Motl EMAILWH 958-960 Email 01/29/14 Email EMAILWH 962-965 Email EMAILWH 966-976 Email ~ 961 Privilege Asserted Attorney Client Attorney Client Privilege Work Product Jon Motl Jaime Draft decision discussion MacNaughton, Jim Scheier, Mary Baker Jesse Barnhart 06/05/14 Chris Sweeney Jon Motl, Andy Forsyth Litigation 11/08/14 Jon Motl Notice discussions 12/05/1301/15/14 Jon Motl Jaime MacNaughton, Jim Scheier, Mary Baker Jaime MacNaughton, Jim Scheier, Mary Baker Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Page 11 of16 Draft decision discussion c (.. Bates No. ~MAILWH Document -1'Yl!_e Email . 977 EMAILWH 978 Email EMAILWH 979-981 Email EMAILWH 982-983 Email EMAILWH 984 Email Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privilege Log Date of Author Recipient Subject Matter Document Jon Motl Janet Myers, Litigation 01/21/14 Mike Black, Jaime MacNaughton, Jim Scheier .Jon Motl Jaime Notice discussions 01/23/14 MacNaughton, Jim Scheier, Mary Baker, Vanessa Sanddal Jon Motl Jaime Draft decision discussion 01/23/14MacNaughton, 02/02/14 Jim Scheier, Mary Baker, Vanessa Sanddal Jaime Jon Motl Litigation 02/27/14 MacNaughton 02/12/14 Jim Scheier Jaime Litigation MacNaughton, Mike Black, Jon Motl Page 12 of16 Privilege Asserted Attorney Client Privilege Work Product Attorney Client Privilege Work Product c Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product c.. Bates No. ~LWH Document -1'Yl!_e Email 985-987 Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privilege Lo_g_ Date of Author Recipient Subject Matter Document Jaime Mike Black, Litigation 06/17/14MacNaughton Jon Motl, Matt 07/21/14 Cochenour EMAILWH 988-991 Email 12/13/1304/6/14 Jon Motl EMAILWH 992-993 Email 04/22/14 Stuart Segrest EMAILWH 994-995 Email 04/23/14 Mike Black EMAILWH 996-998 Email 04/01/14 Jim Scheier EMAILWH 999 Email 02/14/14 Chris Gallus .... Jaime MacNaughton Jim Scheier Mary Baker Tia Corwin, Jim Scheier, Sheila Hogan, Jon Motl, Mike Black Jaime MacNaughton Jon Motl, Matt Cochenour Jon Motl, Jaime MacNaughton, Mary Baker, Vanessa Sanddal Jaime MacNaughton, Jon Motl Page 13 of16 Draft decision discussion Litigation Litigation Draft decision discussion Privilege Asserted Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product c (... • • ~ f-:::.·-· Bates No. EMAILWH . 1000-1005 Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy PrivileKe~ Document __!)p_e Email Date of Author Document Jon Motl 02/03/14 EMAILWH 1006-1007 Email 11/01/13 Jon Motl EMAILWH 1008-1009 Email 11/04/13 Jon Motl EMAILWI I 1010-1011 Email 11/14/13 Jon Motl EMAILWH 1012-1013 Email 11/26/13 Jon Motl Recipient Subject Matter Jim Scheier, Jaime MacNaughton, Mary Baker, Vanessa Sanddal Jim Scheier, Jaime MacNaughton, Mike Black, Matt Cochenour Jim Scheier, Jaime MacNaughton, Mary Baker Jaime MacNaughton Jim Scheier Draft decision discussion Litigation Attorney Client Privilege Work Product Draft decision discussion Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Litigation Mike Black, Litigation Jim Scheier, Jaime MacNaughton, Mary Baker, Matt Cochenour Page 14 of16 Privilege Asserted Attorney Client Privilege Work Product c (... Bates No. EMAILWH 1014-1015 Document _].)])_e Email Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privilege Lo_g_ Date of Author Recipient Subject Matter Document Jon Motl Anthony Litigation 12/02/13 Johnstone EMAILWI I 1016 Email EMAILWH 1017-1019 Withholding Note EMAILWH 1020-1021 Email 04/14/14 Jon Motl EMAILWH 1022-1032 Email 04/14/14 Jon Motl 09/23/13 Jon Motl Jon Motl Anthony Draft decision discussion Johnstone, Jim Scheier, Jaime MacNaughton, Mary Baker, Julie Steab Withholding notes Vanessa Sanddal, Kym Trujillo, Mary Baker Jim Scheier, Mary Baker, Vanessa Sanddal, Jaime MacNm1g_hton Page 15 of16 Decision Draft decision discussion Privilege Asserted Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product r (... , Bates No. EMAILWH 1033-1036 Document !)]>_e Draft Decision - - · EMAILWH 1037 Email EMAILWH 1038 Email EMAILWH 1039-1050 Email Emails Withholding Bates Stamped COPP's Responses Attorney/Client, Work Product or Privacy Privile~ Log_ Date of Author Recipient Subject Matter Document Jon Motl Jim Scheier, Draft decision discussion Mary Baker, Vanessa Sanddal, Jaime MacNal!&_hton Draft decision discussion Jon Motl Vanessa 04/12/14 Sanddal, Jaime MacN aughton, Jim Scheier, Mary Baker Jon Motl Vanessa Draft decision discussion 04/12/14 Sanddal, Jaime MacNaughton, Jim Scheier, Mary Baker Vanessa Draft decision discussion Jon Motl 04/12/14Sanddal, 04/14/14 Jaime MacNaughton, Jim Scheier, Mary Baker Page 16 of16 Privilege Asserted Attorney Client Privilege Work Product r Attorney Client Privilege Work Product Attorney Client Privilege Work Product Attorney Client Privilege Work Product (.. - ~~~- ~·-- --·-- --.--- -----_ _d.4Z-:__:_~_!J;k_ . .In_-~ _____ '. ____~ -·----------- ----·----·-·· ----- --- --·------·-- --------·-------d----------··--····--- "--·---·· ·------ -·---~-- -----------·- ~--------- ·--,-----------------·---- --- ---· 1 ------ J_ ~_:.:;~-=--- ---------·----- _A._