IN THE CIRCUIT COURT OF COLE COUNTY MISSOURI
NINETEENTH JUDICIAL CIRCUIT
BEN SANSONE, on behalf of
THE SUNSHINE PROJECT,
Plaintiff,
v.
ERIC GREITENS, Governor of Missouri, et al.,
Defendants

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Case No. 17AC-CC00635

SUGGESTIONS IN OPPOSITION TO PLAINTIFF’S MOTION FOR
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiff seeks the “extraordinary and drastic remedy” of a temporary restraining order
and preliminary injunctive relief. However, the allegations in Plaintiff’s Petition are based
entirely on media reports that employees of the Office of the Governor have used an application
called “Confide” on their personal mobile phones. These media reports provide no basis to
conclude that the use of this application has resulted in violation of Missouri law.
Given that Plaintiff’s lawsuit is based solely on news reports and baseless speculation, it
is unsurprising that the Plaintiff cannot establish any probability of a likelihood of success, as is
required for injunctive relief under Missouri law. Indeed, the Petition fails in numerous respects.
Plaintiff fails to show that he has suffered any injury as a result of the alleged conduct and
therefore has no standing to bring his claims. Plaintiff’s claims also are not ripe because they are
based on nothing more than pure speculation, and so any ruling by this Court would be purely
hypothetical in nature. Further, each of Plaintiff’s claims fails to state a cause of action upon
which relief may be granted under Missouri law.
Plaintiff also cannot establish that he has suffered irreparable harm, much less that any
harm he has experienced “decidedly” outweighs the harm to other parties such as employees of

 the Office of the Governor if Plaintiff’s extremely overbroad request for injunctive relief is
granted. Finally, Plaintiff’s Motion for injunctive relief has been rendered moot by subsequent
events. For all these reasons, Plaintiff’s Motion should be denied.
FACTUAL BACKGROUND
On December 7, 2017, the Kansas City Star reported that the Governor and his staff have
used an application known as Confide on their personal mobile phones. Pet. ¶ 13 & Exhibit
(“Ex.”) A (attached hereto as Ex. A). This application allows a user to send messages to other
users who also have the application, just like any other text messaging application. The only
difference is that Confide automatically destroys these texts after they are sent and received. 1
On December 20, 2017, Plaintiff submitted requests pursuant to the Sunshine Law for
numerous categories of documents related to the use of Confide and similar applications by
employees of the Office of the Governor. Pet. ¶ 14 & Ex. B (attached hereto as Ex. B). The
Office of the Governor received this request on December 21, 2017, and it responded three
business days later, on December 26, 2017. Pet. ¶ 16 & Ex. C (attached hereto as Ex. C). In its
response letter, the Office of the Governor responded to one of Plaintiff’s six distinct requests by
directing Plaintiff to where he could access the records retention schedule for the Office of the
Governor. Ex. C at 1. With respect to Plaintiff’s five other requests, the Office of the Governor
informed Plaintiff that it was “in the process of reviewing parts 1-5 of your request, and we
anticipate that we will be able to provide a response or a time and cost estimate (if applicable) for
records you have requested in no more than twenty business days.” Ex. C at 2.

1

Of course, users of traditional text messaging applications may readily delete messages sent or received whenever
they please. But there has been no lawsuit alleging that the mere existence of this functionality necessarily
constitutes a violation of Missouri records laws, because such an allegation would be absurd. The same is true with
respect to the use of Confide: the mere existence of the application does nothing to alter what is required under
Missouri law, nor does its existence and use suffice to support claims for violation of Missouri law.

2

 Rather than wait for the Office of the Governor’s response, Plaintiff filed this lawsuit a
mere three days later on December 29, 2017. See generally
Pet. The Petition alleges that the
Office of the Governor has violated the State and Local Records Law, Chapter 109 RSMo, and
the Sunshine Law through their use of Confide and by failing to adequately respond to Plaintiff’s
Sunshine requests. Pet. ¶¶ 26-41. The Petition also requests far-reaching and overbroad
injunctive relief that would restrain lawful and protected conduct, including the use of Confide or
similar applications on Governor’s Office employees’ personal phones for purely private
purposes. Pet. ¶¶ 21-25. The Petition fails to allege that Plaintiff has suffered any injury. See
generally
Pet.
On January 3, 2018, the Office of the Governor instituted a litigation hold requiring the
preservation of all documents related to the subject matter of this action (i.e., Confide and any
similar applications) and prohibiting the use of Confide or any similar applications by Office of
the Governor staff for any work-related communications. Aff. of Custodian of Records Michelle
Hallford ¶¶ 5-6 & Ex. 1 (attached thereto as Ex. 1).
Plaintiff’s Motion seeks extremely broad and far-reaching injunctive relief “prohibiting
Defendants from violating the Missouri Sunshine laws and State and Local Records Laws by
order that: 1) the governor and all Office of Governor employees are to immediately cease using
Confide, Signal, and any other software designed to automatically destroy communications, to
communicate with any other employee/s of Missouri about any topic; 2) the governor and all
Office of Governor employees are to immediately cease using Confide, Signal, and any other
software designed to automatically destroy communications, to discuss public, state and/or the
governor’s business with anyone not employed by the state; 3) an order compelling the
defendants to identify all governor’s office employees who also used Confide or similar

3

 automatic record destroying software, at any time in the last year, to communicate with the
governor and/or any other employee of the Office of Governor or the Governor’s staff; 4) an
order restraining the custodian of records from allowing violation of public record laws,
including compelling the custodian of records to immediately collect all digital communications,
images, including text messages, made by the governor and employees of the Office of
Governor, on any phone or computer, so that these messages can be secured for potential future
review by the court.” Mot. at 8.
On January 25, 2018, the Office of the Governor responded to Plaintiff’s remaining
Sunshine requests. SeeEx. D (attached hereto as Ex. D).
STANDARD OF REVIEW
“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.
, 520 U.S. 968, 972 (1972) (per curiam). Under Missouri law, courts must consider
Armstrong
four factors in determining whether to grant a motion for a preliminary injunction: “(1) the
likelihood that the party seeking the stay will prevail on the merits; (2) the likelihood that the
moving party will be irreparably harmed absent a stay; (3) the prospect that others will be
harmed if the court grants the stay; and (4) the public interest in granting the stay.” State ex rel.
Dir. of Revenue v. Gabbert
, 925 S.W.2d 838, 839 (Mo. banc 1996). Plaintiff “ mustmake some
showing of probability of success on the merits before a preliminary injunction will be issued.”
F.d 1045,
Id. at 839 (emphasis added); accord 1-800-411-Pain Referral Serv., LLC, 744
v. Otto
1054 (8th Cir. 2014) (moving party “must establish as a threshold matter that they are ‘likely to
prevail on the merits.’”). Even if Plaintiff could make this threshold showing, he also “must
show that the probability of success on the merits and irreparable harm decidedly
outweigh any

4

 potential harm to the other party or to the public interest if a stay is issued.” Id. at 840 (emphasis
added).
ARGUMENT
Plaintiff cannot carry his burden of showing that he is entitled to the “extraordinary and
drastic remedy” of preliminary injunctive relief for multiple, independent reasons. First,
Plaintiffs’ underlying claims are without merit because Plaintiff lacks standing to bring claims
for violation of the State and Local Records Law and injunctive relief. Second, Plaintiff’s claims
that government records have been destroyed in violation of Missouri law are not ripe for
judicial determination because Plaintiff fails to plead any facts establishing that any such records
have in fact been destroyed. Third, Plaintiff’s claims fail to state a cause of action under
Missouri law. Fourth, Plaintiff has not shown that he will suffer anyharm absent an injunction,
much less irreparable harm. Finally, Plaintiff’s request for injunctive relief has been rendered
moot by subsequent events.
I.

Plaintiff Cannot Establish Any Probability of Success
on the Merits Because Plaintiff Lacks Standing.
Plaintiff lacks standing to assert his claims for violation of Missouri’s State and Local

Records Laws, Chapter 109 RSMo, or for the related request for injunctive relief, because
Plaintiff fails to allege any injury as a result of these alleged violations. 2 To establish standing, a
plaintiff must have a personal stake in the outcome of the litigation. Schweich v. Nixon
, 408
S.W.3d 769, 774 (Mo. banc 2013). In particular, the plaintiff must be directly and adversely

2

The State and Local Records Law does not expressly grant statutory standing to Missouri citizens, unlike the
Sunshine Law. Cf. § 610.027(1) RSMo (“Any aggrieved person, taxpayer to, or citizen of, this state . . . may seek
judicial enforcement of the requirements of sections 610.010 to 610.026.”); see also Champ v. Poelker
, 755 S.W.2d
383, 393 (Mo. App. E.D. 1988) (“[S]ection 610.027 gives appellants, as citizens, standing to seek enforcement of
the requirements of the Sunshine Law.”). Plaintiff must therefore satisfy the traditional elements of standing to
assert claims for violation of the State and Local Records Law or for injunctive relief.

5

 affected by the alleged bad acts or omissions of the respondent. St. Louis County v. State of
, 424 S.W.3d 450, 453 (Mo. banc 2014); see also Hinton v. City of St. Joseph
, 889
Missouri
S.W.2d 854, 859 (Mo. App. W.D. 1994) (a plaintiff lacks standing “unless the claimant has a
substantial special injury”). As the party seeking relief, Plaintiff “bear[s] the burden of
establishing that [he] ha[s] standing.” Manzara v. State
, 343 S.W.3d 656, 659 (Mo. banc 2011).
Plaintiff cannot satisfy that burden here.
Plaintiff alleges in conclusory fashion violations of the State and Local Records Law
because “[b]ased on information and troves
beliefof government records have been destroyed”
through “[t]he use of automatic communication destroying software.” Pet. ¶¶ 37-38. Plaintiff
also makes the related conclusory allegation that there was a “conspir[acy] to destroy public
records in violation of Chapter 109 RSMo.” Pet. ¶ 40. And Count I relies entirely upon the
conclusory allegation that absent injunctive relief, “potentially thousands of government
communications and/or government property will be destroyed.” Pet. ¶ 24. Notably, however,
Plaintiff fails to allege anypersonal injury as a result of these purported violations of the State
and Local Records Law, much less the “particularized” and “substantial special injury” required
by law.
Even if the Petition did allege that the Plaintiff had suffered some general and abstract
harm because of the alleged destruction of “government records” (which it does not), that still
would not be sufficient to confer standing on Plaintiff to maintain these claims. “Generally, an
individual does not have standing to seek redress of a public wrong, or of a breach of public
duty, if such individual’s interest does not differ from that of the public generally . . . .” Hinton
,
889 S.W.2d at 859; see also Hollingsworth v. ,Perry
133 S. Ct. 2652, 2662 (2013) (“[A]
‘generalized grievance,’ no matter how sincere, is insufficient to confer standing.”); Spokeo, Inc.

6

 , 136 S. Ct. 1540, 1548 (2016) (“For an injury to be ‘particularized,’ it ‘must affect the
v. Robins
plaintiff in a personal and individual way.’” (citation omitted)).
Because the Petition lacks any allegation that Plaintiff has been harmed as a result of
these purported violations of the State and Local Records Law, Plaintiff’s request for injunctive
relief based on these allegations should be denied.
II.

Plaintiff Cannot Establish Any Probability of Success
on the Merits Because Plaintiff’s Claims Are Not Ripe.
Even if Plaintiff had standing to bring his claims related to the purported destruction of

government records in violation of Missouri law (which he does not), Plaintiff still would not be
able to show any probability of success on the merits because these claims are not ripe for
adjudication. “Ripeness is determined by whether the parties’ dispute is developed sufficiently
to allow the court to make an accurate determination of the facts, to resolve a conflict that is
presently existing, and to grant specific relief of a conclusive character.” Schweich
, 408 S.W.3d
at 774 (internal quotation marks omitted). “Ripeness does not exist when the question rests
solely on a probability that an event will occur.” Buechner v. Bond
, 650 S.W.2d 611, 614 (Mo.
banc 1983).
Plaintiff here has relied entirely on inferences drawn from news report as the basis for his
allegations that the Office of the Governor has destroyed government records that are required to
be retained under Missouri law through the use of Confide. Pet. ¶ 13 (discussing December 7,
2017 Kansas City Star article and alleging that the use of Confide “rais[es] concerns
that these
actions violated Missouri Sunshine laws” (emphasis added)). Plaintiff has no independent
knowledge or factual basis for his claims that documents have been destroyed in violation of
Missouri law. Indeed, Plaintiff tacitly admits this when he pleads that “ [b]ased on information
and belief
, troves of government records have been destroyed” and that “[p]otentially
thousands
7

 of government communications . . . were knowingly and purposely destroyed . . . . Pet. ¶ 38
(emphasis added).
This admission that Plaintiff has no independent factual basis for his allegations
constitutes an admission that these claims are not ripe. Because Plaintiff’s claims are based on
nothing more than rank speculation, the Court is unable “to make an accurate determination of
the facts” and “to resolve a conflict that is presently existing.” Missouri Health Care Ass’n v.
, 953 S.W.2d 617, 621 (Mo. banc 1997). Any ruling by
Attorney General of the State of Missouri
the court regarding the use of Confide and the destruction of governmental records therefore
would be entirely speculative and advisory in nature. See Schultz v. Warren County
, 249 S.W.3d
898, 901 (Mo. App. E.D. 2008) (an action is not ripe if the court “would simply be rendering an
advisory opinion on some future set of circumstances”). Accordingly, Plaintiff cannot show a
probability of success with respect to his claims that government records have been destroyed in
violation of Missouri law.
III.

Plaintiff Cannot Establish Any Probability of Success on the
Merits Because He Fails to Plead a Cognizable Cause of Action.
The Petition fails to state a cause of action with respect to any of the pleaded claims. “To

properly plead a cause of action, ‘the petition must state allegations of fact in support of each
essential element of the cause pleaded.’” Am. Eagle Waste Indus., LLC v. St. Louis
, 379Cty.
S.W.3d 813, 829 (Mo. banc 2012). “Mere conclusions that are not supported by factual
allegations are disregarded.” Bethman v. Faith
, 462 S.W.3d 895, 901 (Mo. App. E.D. 2015). A
petition must be dismissed “where the facts essential to a recovery are not pleaded.” Erslon v.
Vee-Jay Cement Contracting
, 728
Co.
S.W.2d 711, 712 (Mo. App. E.D. 1987).
The Petition here pleads neither the essential elements of Plaintiff’s claims nor the “facts
essential to a recovery.” Plaintiff’s request for injunctive relief should thus be denied.
8

 “Injunctive relief is a harsh remedy, to be used sparingly and only in clear cases.” Hagen v.
, 763 S.W.2d 384, 385 (Mo. App. S.D. 1989); see also Hudson v. Sch. Dist. of
Bank of Piedmont
Kansas City
, 578 S.W.2d 301 (Mo. App. W.D. 1979) (“When the injunctive relief sought is to
restrain future threatened action, the threatened action must be based upon a real apprehension
that the acts for which the injunction are sought are not only threatened but will in all probability
be committed.”).
A.

The Petition Fails to State a Cause of Action for Violation of the Sunsh
Law.

The Petition fails to state a valid cause of action under the Sunshine Law. Count II
alleges that, when Plaintiff submitted his Sunshine Request on December 20, 2017, Defendants
“failed to provide access within three days” and “failed to provide a detailed explanation of the
cause of delay, within three days” in violation of § 610.023(3). Pet. ¶¶ 28-29.
These allegations fail to state a viable cause of action. Section 610.023 RSMo provides
that “[e]ach request for access to a public record shall be acted upon as soon as possible, but in
no event later than the end of the third business day following the date the request is received by
the custodian of records of a public governmental body.” § 610.023(3) RSMo. It further
provides that “[i]f access to the public record is not granted immediately, the custodian shall give
a detailed explanation of the cause for further delay and the place and earliest time and date that
the record will be available for inspection. This period for document production may exceed
three days for reasonable.”cause
Id. (emphasis added). In interpreting this provision, Missouri
courts have explained that
Three elements are required to state a cause of action under section 610.023.3,
RSMo 2000, where the basis for the claim is a governmental entity’s refusal or
failure to respond to a request made in accordance with the statute. The
petitioner’s petition must allege that (1) a request for access to a public record was
made; (2) such request was received by the custodian of records; and (3) the
9

 custodian of records did not respond to the request within three business days of
receiving the request.
Anderson v. Village of Jacksonville
, 103 S.W.3d 190, 194-95 (Mo. App. W.D. 2003).
Here, Defendants responded to Plaintiff’s Sunshine requests within three business days.
Pet. ¶ 16 & Ex. C. That response informed Plaintiff where he could access one of the categories
of documents he requested (the records retention schedule for the Office of the Governor), Ex. C
at 1, and it further informed Plaintiff that the Office of the Governor was “in the process of
reviewing parts 1-5 of your request, and we anticipate that we will be able to provide a response
or a time and cost estimate (if applicable) for records you have requested in no more than twenty
business days.” Ex. C at 2. The Custodian of Records then responded in full to Plaintiff’s
remaining requests on January 25, 2018. Ex. D. The law requires no more.
Count III of the Petition alleges that the Office of the Governor used “automatic message
destroying software” to “conspire[] to prevent public access to public records” in violation of the
Sunshine Law. Pet. ¶ 33. However, Count III fails to allege that any of the “[p]otentially
thousands of government communications that were knowingly and purposefully destroyed” fall
under the definition of “[p]ublic records” that are subject to the provisions of the Sunshine Law.
Indeed, the Petition’s allegations fundamentally misunderstand the Sunshine Law. The Sunshine
Law does not mandate what documents must be retained by governmental bodies; rather, that
falls within the ambit of the State and Local Records Law. The Sunshine Law instead addresses
what governmental entities must do in response to requests for documents that are retained by
these entities, i.e., what the Sunshine Law defines as “public records.”
The Sunshine Law defines “[p]ublic record[s]” in relevant part as “any record, whether
written or electronically stored, retained by or of any public governmental
.” § 610.010(6)
body
RSMo (emphasis added). In other words, the definition of a “public record” that is subject to the
10

 Sunshine Law “includes only those records—either written or electronic—that are already in
existence that the public governmental body is ‘holding’ or ‘maintaining’ in its possession.”
Jones v. Jackson Cty. Cir., 162
Ct. S.W.3d 53, 59 (Mo. App. W.D. 2005). It does notinclude
documents that have not been retained for whatever reason. It also is well-settled that a
governmental agency need not create a record not previously in existence in response to a
Sunshine Request. Id. at 60 (“The plain language of the Sunshine Law does not require a public
governmental body to create a new record upon request, but only to provide access to existing
records held or maintained by the public governmental body.”).
Further, the Petition does not even cite a specific provision of the Sunshine Law that was
purportedly violated. Instead it alleges broadly that “potentially
thousands of documents . . .
were knowingly and purposefully destroyed.” Pet. ¶ 34 (emphasis added). This allegation is
purely speculative on its face, requiring its dismissal.
B.

The Petition Fails to State a Cause of Action for Violation of the State
Local Records Law.

Plaintiff’s claims for violation of the State and Local Records Law by using Confide or
similar applications also fail as a matter of law. Count IV alleges that “[t]he use of automatic
communication destroying software is a violation of Chapter 109 of Missouri Revised Statutes,”
Pet. ¶ 37, and that “[b]ased on information and, belief
troves of government records have been
destroyed because of the actions of all Defendants,” Pet. ¶ 38 (emphasis added). This allegation
conflicts glaringly with Plaintiff’s allegation that “[p]otentially
thousands of government
communications . . . were knowingly and purposefully destroyed . . . .” Pet. ¶ 34 (emphasis
added). Of course, pleading that there is merely the potential that Missouri’s record retention
laws were violated is insufficient to state a cause of action, so Plaintiff simply relies on rank
speculation to plead that government records have been destroyed and refers to it as “information
11

 and belief.” Plaintiff’s contradictory allegations and admitted reliance on inferences drawn from
media reports to plead his purported claims reveals that the Petition is based on nothing more
than speculative conclusory allegations and should be dismissed.
Even accepting Plaintiff’s baseless and contradictory accusations at face value, the
allegations fail to state a claim. The State and Local Records Law determines what records must
be “retained” by the government. Specifically, § 109.210(5) RSMo provides that a “[r]ecord”
subject to the law’s retention requirements includes documents “made or received pursuant to
.” (emphasis
added). Here, the
law or in connection with the transaction of official
business
Petition fails to allege that any of the communications or documents that have allegedly been
destroyed through the use of Confide or similar applications fall under this definition of
“record.” At most, the Petition alleges that “[b]ased on information and belief, troves of
government records have been destroyed,” Pet. ¶ 37, but this conclusory allegation is not
supported by any factual allegations that the allegedly destroyed records relate to “official
business” such that they are subject to the State and Local Records Law in the first instance.
This omission is fatal to Plaintiff’s claim for violation of the State and Local Records Law.
The Court also should reject Plaintiff’s suggestion to “draw an adverse inference for the
purpose of this restraining order and/or preliminary injunction, that the destroyed
communications are precisely the kind of communications that must be preserved.” Mot. ¶ 30.
Plaintiff cites no authority for this novel suggestion. In effect, Plaintiff asks that the Court grant
broad injunctive relief based on nothing more than a guess that staff members of the Governor’s
Office have violated Missouri law. This is contrary to Missouri law establishing that it is
Plaintiff’s burden to demonstrate the necessity of preliminary injunctive relief. See Gabbert
, 925
S.W.2d at 839.

12

 In his Amended Motion, Plaintiff alleges for the first time that the use of Confide and
similar applications violates the General Retention Schedule promulgated by the State Records
Commission because “general correspondence” of the Governor and his staff must be retained
for three years. Mot. ¶¶ 19-22. Plaintiff is wrong. These retention schedule sections expressly
apply only to documents “created or received pursuant to law, or in connection with the
transaction of official business.” Agency Records Disposition Schedule, General Retention
Schedule, Administrative Operations, Series 21530 and 21531, available at
https://www.sos.mo.gov/CMSImages/RecordsManagement/schedules/GRS/Admin.pdf. In other
words, these retention schedules apply only to the documents that must be retained pursuant to
§ 109.210(5) RSMo, as discussed above. Other sections of the General Retention Schedule, not
cited by Plaintiff, provide that “[d]rafts or other documents having short-term value and which
are not an integral part of administrative or operational records file” and/or are “not required to
sustain administrative or operational functions” may be “[d]estroy[ed]” immediately. Id.
Plaintiff fails to provide anyevidence that the government records that were purportedly
destroyed through the use of Confide or similar applications fall into the categories of documents
that are required to be retained under Missouri law or the General Retention Schedule.
Plaintiff’s newly-filed affidavit merely parrots his Petition, which cites only to news reports as
the basis for Plaintiff’s allegations and which provides no independent factual basis for
Plaintiff’s allegations. Compare
Sansone Aff. ¶ 6 withPet. ¶ 13.
Plaintiff’s allegation that the Office of the Governor has violated § 109.260 RSMo, Mot.
¶¶ 16-18, by allowing documents to be destroyed without first affording the State Records
Commission the opportunity to “make the determination” whether these documents have “further
administrative, legal, fiscal, research, or historical value” is facially invalid. The State and Local

13

 Records Law explicitly provides that “[n]onrecord materials or materials not included within the
definition of records . . . may . . . be destroyed at any time by the agency in possession of such
materials with approval of the commission or board.” § 109.260(2) RSMo. Pursuant to the
General Retention Schedule, promulgated by the State Records Commission, governmental
agencies and employee may immediately destroy any documents that are not “created or
received pursuant to law, or in connection with the transaction of official business.” In other
words, the State Records Commission expressly permits government agencies to make their own
judgments as to what documents need to be retained under the General Retention Schedule.
Plaintiff’s allegations to the contrary are without basis in law or fact. 3
As for Count V of the Petition, it alleges a conspiracy “to destroy public records in
violation of Chapter 109 RSMo, the State and Local Records Law,” Pet. ¶ 40, without any
additional factual allegations in support. Because the Petition fails to include any allegations that
these “public records” related to “official business” such that they were required to be retained
under the State and Local Records Law, this claim also fails.
IV.

The Balancing of Harms Weigh Against Granting Preliminary Injunctive R
Plaintiff fails to allege any unique or specialized harm as a result of the violations of

Missouri law he alleges. As such, he cannot show that he “will be irreparably harmed absent a
stay” as is required under Missouri law to justify the extraordinary grant of preliminary
injunctive relief. Gabbert
, 925 S.W.2d at 839-40.
Plaintiff insists that “[a]bsent a TRO and/or preliminary injunction, Plaintiff and all
Missourians will be immediately and irreparably harmed by the continued and automatic

3

Moreover, Plaintiff’s allegations that the Office of the Governor has violated the requirements of the General
Retention Schedule and § 109.260 RSMo do not appear in Plaintiff’s Petition. As such, they should not be
considered in determining whether Plaintiff has established a probability of success on the merits of his claims.

14

 destruction of communications.” Mot. ¶ 32. This conclusory allegation cannot withstand
scrutiny. Plaintiff has submitted no evidence other than his own self-serving affidavit, and as
discussed above, Plaintiff relies on nothing more than sheer speculation in support of his
allegations that Missouri law has been violated through the use of Confide or similar
applications. This falls well short of the showing required to justify injunctive relief. Indeed,
Plaintiff’s three-week delay in seeking preliminary injunctive relief after the filing of the Petition
fatally undermines any argument that such drastic relief is required. See Hubbard Feeds, Inc. v.
, 182
F.3d 598, 603 (8th Cir. 1999) (plaintiff’s delay in moving for
Animal Feed Supplement,
Inc.
preliminary injunctive relief “belies any claim of irreparable injury pending trial”).
On the other hand, the requested relief would certainly result in harm to employees of the
Office of the Governor. See Gabbert
, 925 S.W.2d at 840 (court must consider “the prospect that
others will be harmed if the court grants the stay”). Missouri law is clear that injunctive relief is
improper when it would “interfere with any legitimate or proper activities.” Schluemer v. Elrod
,
916 S.W.2d 371, 379 (Mo. App. S.D. 1996). The injunction requested here is improper because
it would prohibit employees of the Office of the Governor from using Confide or similar
applications on their personal phones for sending purely personal, non-work-related messages.
, 512 U.S.
See Madsen v. Women’s Health Center,
Inc. 753, 765 (“[I]njunctive relief should be no
more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”).
Such an injunction also would run afoul of these employees’ First Amendment right to freedom
of speech. See Nebraska Press Ass’n v. , Stuart
427 U.S. 539, 559 (1976) (“[P]rior restraints on
speech . . . are the most serious and the least tolerable infringement on First Amendment
rights.”); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human
, 413
Relations
U.S. 376. 390
(1973) (a prior restraint on speech should not “swee[p]” any “more broadly than necessary”);

15

 , 393
U.S. 175, 183-84 (1968) (An “order”
Carroll v. President & Comm’rs of Princess
Anne
issued in “the area of First Amendment rights” must be “precis[e]” and narrowly “tailored” to
achieve the “pin-pointed objective” of the “needs of the case”).
Plaintiff’s request that the Court require the “identif[ication] all Governor’s Office
employees who used Confide or similar automatic record destroying software to communicate
with the governor and/or any other member of the governor’s staff” is similarly overbroad and
improper. This request is untethered from the alleged violations of Missouri law because, as
explained above, the mere existence or use of Confide or similar software is not a per se
violation of Missouri law. Because this requested injunctive relief would infringe on proper and
protected conduct, it must be denied.
V.

Plaintiff’s Requested Injunctive Relief is Moot.
Plaintiff’s Motion also should be denied as moot because the injunctive relief it seeks has

been rendered unnecessary by subsequent events. “A question is justiciable only where the
judgment will declare a fixed right and accomplish a useful purpose.” Kinsky v. Steiger
, 109
S.W.3d 194, 195 (Mo. App. S.D. 2003) (citing Local Union 1287 v. Kansas City Area Transp.
Auth.
, 848 S.W.2d 462, 463 (Mo. banc 1993)). “When an event occurs that makes a court’s
decision unnecessary or makes granting effectual relief by the court impossible, the case is moot
and generally should be dismissed.” Id.
Plaintiff’s request for injunctive relief has been rendered moot because the Office of the
Governor’s litigation hold preserves all documents relating to Confide or any similar application
and forbids any employees from using Confide or similar applications for any work-related
communications. Aff. of Custodian of Records Michelle Hallford ¶¶ 5-6 & Ex. 1 (attached
hereto as Exhibit 1). In light of this litigation hold, Plaintiff’s requested injunctive relief is

16

 duplicative of the actions already taken by the Office of the Governor in connection with the
litigation hold. Thus, any grant of preliminary injunctive relief would “ha[ve] no practical effect
upon an existent controversy.” State ex rel. Chastain v. City of Kansas
, 968 City
S.W.2d 232,
237 (Mo. App. W.D. 1998).
CONCLUSION
For all of these reasons, Plaintiff’s Motion for Temporary Restraining Order and
Preliminary Injunction should be denied.

Dated: January 30, 2018
Respectfully Submitted,
DOWD BENNETT LLP
By /s/ Gabriel E. Gore
Gabriel E. Gore #45416
Jeffrey R. Hoops #69813
7733 Forsyth Blvd., Suite 1900
St. Louis, Missouri 63105
(314) 889-7300 (telephone)
(314) 863-2111 (facsimile)
ggore@dowdbennett.com
jhoops@dowdbennett.com
Attorneys for Defendants
Eric Greitens and Michelle Hallford

17

 CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing was caused to be served electronically via the
Missouri electronic filing system on all counsel of record, as shown below this 30th day of January,
2018.

Mark J. Pedroli
Pedroli Law, LLC
7777 Bonhomme Ave., Suite 2100
Clayton, MO 63105
314.669.1817 phn
314.789.7400 fax
mark@pedrolilaw.com

/s/ Gabriel E. Gore

18