IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DONNA CURLING, et al., Plaintiffs, CA No. 1:17cv02989-AT v. BRIAN KEMP, et al., Defendants. STATE NOTICE OF INTENT TO SERVE SUBPOENA Pursuant to Rule 45(a)(4) of the Federal Rules of Civil Procedure, the State Defendants hereby notify all parties that they intend to serve a subpoena on the Atlanta Division of the Federal Bureau of Investigation to obtain a copy of the forensic image that was made by the FBI of the Kennesaw State University Center for Election Systems server in March of 2017. See Exhibit 1 attached hereto. Discovery in this case is stayed pursuant to the Court?s September 5, 2017 (Doc. 56), and the State Defendants are not engaging in any discovery with respect to this drive and will not access it unless and until the stay of discovery is lifted (in the event that the State Defendants? Motion to Dismiss is not granted or only partially granted). This subpoena is being issued at this time in an attempt to retain and secure the image in the event it is later needed in this case for purposes of discovery. The Court?s Order staying discovery encourages the parties to take steps during the stay to facilitate an orderly and prompt resolution of the case. (Doc. 56). The original CES server was wiped on July 7, 2017, prior to service of this lawsuit on any Defendant in this case; however, given that the FBI took a forensic image of the server during the 2-week period in March of 2017 when the server was in the possession, it is possible to obtain a copy of the image of that server as it appeared in March of 2017 when it was in FBI custody. Given that the FBI has closed its investigation of this matter, the forensic image was scheduled for destruction under standard FBI record retention policies and has been or soon will be wiped. Prior to the scheduled wiping of the original forensic image, the FBI made a copy of that image, which will be installed on a blank drive to be provided by the Georgia Secretary of State?s Of?ce to the FBI. This subpoena will seek production of that copy of the forensic image of the server taken by the FBI in March of 2017. Upon taking possession of the drive with the forensic image copied on to it, the drive will be secured and taken by representatives at the Secretary of State?s of?ce to a secured storage facility at their Of?ce. It will not be accessed by the State Defendants (or their counsel) unless and until discovery begins in this case. The State Defendants emphasize that by taking these actions, they are not acknowledging that the server taken by the FBI has any relevance to the Plaintiffs? claims in this lawsuit regarding the reliability of DREs or the electronic voting system in Georgia. The image is being obtained and preserved in an abundance of caution in the event that discovery of the forensic image is later determined to be relevant and discoverable. Respectfully submitted, CHRISTOPHER M. CARR Attorney General 112505 ANNETTE M. COWART 191 199 Deputy Attorney General RUSSELL D. WILLARD 760280 Senior Assistant Attorney General Kl-b?L-ilf? Hi L. CRISTINA M. CORREIA 188620 Assistant Attorney General ELIZABETH A. MONYAK 005745 Assistant Attorney General JOSIAH B. HEIDT 104183 Assistant Attorney General Georgia Department of Law 40 Capitol Square SW Atlanta, GA 30334 404-656-7063 Attorneys for State Defendants 3 Please address all Communication to: CRISTINA CORREIA Assistant Attorney General 40 Capitol Square SW Atlanta, GA 30334 ccorreia@law.ga. gov 404-656-7063 404-651-9325- CERTIFICATE OF SERVICE I hereby certify that on this date I have e?mailed and mailed by US. mail, U.S. postage prepaid, a copy of the foregoing Notice, addressed to the following: Bryan Ward Marvin Lim Holcomb Ward LLP 3399 Peachtree Rd NE, Suite 400 Atlanta, GA 30326 Bryan.Ward@holcombward.com Marvin@holcombward.com Overtis Hicks Brantley Bennett D. Bryan DeKalb County Law Department 1300 Commerce Drive 5th Floor Decatur, GA 30030 Patrise M. Perkins-Hooker Kaye Burwell Cheryl Ringer Fulton County Attorney's Of?ce 141 Pryor Street SW Suite 4038 Atlanta, GA 30303 Facsimile: (404) 730-6324 Daniel W. White Haynie, Litchfield, Crane White, PC 222 Washington Avenue Marietta, Georgia 30060 This 26th day of October, 2017. Joe Caldwell, Jr. Edward Schwartz Steptoe Johnson-DC 1330 Connecticut Avenue, NW. Washington, DC 2003 6?1795 it Mr 0 (9.1mm; Assistant Attorney General EXHIBIT 1 .10 883 (Rev. 02/ 14} Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action UNITED STATES DISTRICT COURT for the Northern District of Georgia Donna Curling, et al. Plaintt?' Va Brian Kemp, et al. Civil Action No. Defendant SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION To: Kristy Green Chief Divsion Counsel. FBI, Atlanta Of?ce (Name of person to whom this subpoena is directed) 6 Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the materialzcopy of forensic image that was made by the FBI of the Center for Elections Systems' election server in March of 2017 following FBI taking possession of that server (a Dell Power Edge R610 with DNS name elections. kennesawedu) Place: FBI. Atlanta Division Date and Time: . 3000 Flowers Road South Nh?'u? W1 63.! (e l8 l'm-o. (iv-d Atlanta, Georgia 30341 CI Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Place: Date and Time: The following provisions of Fed. R. Civ. P. 45 are attached Rule 45(e), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and relating to your duty to respond to this subpoena and the potential consequences of not doing so. Date: l0 '2.)on l?l CLERK OF COURT 0R gram-- 4 Eliz ethA.Monyak Signature of Clerk or Deputy Clerk Attorney '5 signature The name, address, e-mail address, and telephone number of the attorney representing (name ofpany) Brian Kemp, Center for ElectioriSystems.Merle King LQES, and SEB members who issues or requests this subpoena, are: Elizabeth A. Monyak. 40 Capitol Square, SW, Atlanta, Georgia 30334; emonyak@law.ga.gov; 404-463-3630 a, Notice to the person who issues or requests this subpoena If this subpoena commands the production ofdocuments, electronically stored information, or tangible things or the inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is directed. Fed. R. Civ. P. A0 883 (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2) Civil Action No. 1 317-CV-2939-AT PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 45.) I received this subpoena for (name of individual and title, ifany) on (date) El I served the subpoena by delivering a copy to the named person as follows: on (date) 01' El I returned the subpoena unexecuted because: Unless the subpoena was issued on behalf of the United States, or one of its of?cers or agents, I have also tendered to the witness the fees for one day?s attendance, and the mileage allowed by law, in the amount of My fees are for travel and for services, for a total of 0.00 I declare under penalty of perjury that this information is true. Date: Server ?5 signature Printed name and title Server ?5 address Additional information regarding attempted service, etc.: A0 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3) Federal Rule of Civil Procedure 45 and (Effective 12/1/13) Place of Compliance. (I) For Triui. Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing. or deposition only as follows: (it) within [00 miles of where the person resides. is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person is a party or a party?s officer; or (ii) is commanded to attend a trial and would not incur substantial expense. (1) For Other Discovery. it subpoena may command: (A) production ofdocuments. electronically stored information, or tangible things at a place within ltlil miles of where the person resides, is employed, or regularly transects business in person; and (B) inspection of premises at the premium to be inspected. Protecting a Person Subject to a Subpoena; Enforcement. (1) Avoiding Undue Burden or Erpense; Sanctions. A. party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the Subpoena. The court for the district where compliance is required must enibrce this duty artd impose an appropriate sanction?which may include lost earnings and reasonable attorney?s fees?on a party or attorney who fails to comply. Command to Produce Muicriuir or Permit Inspection. (it) Appearance Not Required. A person commanded to produce documents, electronically stored information. or tangible things, or to permit the inspection need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises?or to producing electronically stored infomration in the form or forms requested. 'l'he objection must be served before the earlier of the time speci?ed for compliance or [4 days after the subpoena is served. [fan objection is made. the following rules apply: At any time, on notice to the conunanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (it) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party?s of?cer from signi?cant expense resulting from compliance. (3) ansiring or Modifying a Subpoena. (A) When Required. Dn timely motion, the court for the district where compliance is required must quash or modify a subpoena that: fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits speci?ed in Rule 45(0); requires disclosure of privileged or other protected matter, if no exception or waiver applies: or (iv) subjects a person to undue burden. (B) When Permitted To protect a person subject to or affected by a subpoena, the court for tire district where compliance is required may, on motion, quash or modify the subpoena if it requires: disclosing a trade secret or other con?dential research, development, or commercial information; or (ii) disclosing an unretaincd expert?s opinion or information that does not describe speci?c occurrences in dispute and results from the expert?s study that was not re quested by a party. (C) Speei?ring Conditions as an Alternative. In the circumstances described in Rule B), the court may, instead of quashing or modifying a subpoena, order appearance or production under speci?ed conditions if the serving party: shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. Duties in Responding to a Subpoena. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Eiecn'onicniiy Stored information Not Spec?ieri. if a subpoena does not speci?y a form producing electronically stored information. the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. Eiecironicoiiy Stored information Produced in Oniy One Form. The person responding need not produce the same electronically stored information in more than one form. (D) inuccessibic Electronic-nib; Stored information. The person responding need not provide discovery of electronically stored infomtation from sources that the person identi?es as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accussible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(bl(2l(C). The court may specify conditions for the discovery. Ciditning Priviiege or Protection. (All Information Withheld A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: expressly make the claim: and (it) describe the nature oflhe withheld documents, communications. or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) information Produced. [f in tbmiation produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the infomtation ofthc claim and the basis for it. A?crbeing noti?ed, a party must return. sequester, or destroy the speci?ed information and any copies it has: must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being noti?ed; and may present the information under seal to the court for the district where compliance is required for a dctemtination of the claim. The person who produced the information must preserve the information until the claim is resolved. Contempt. The court for the district where compliance is required?and also, after a motion is transferred, the issuing court?may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).