Motion To Issue Subpoena For DeKalb DRE - 6.20.18

Case 1:17-cv-02989-AT Document 230-1 Filed 06/20/18 Page 1 of 30
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DONNA CURLING, ET AL.,

Plaintiffs,
Civil Action No. 1:17-CV-2989-AT
v.
BRIAN KEMP, ET AL.,

Defendants.
COALITION PLAINTIFFS’ MEMORANDUM IN SUPPORT OF

MOTION TO ISSUE SUBPOENA DUCES TECUM
Coalition for Good Governance, Laura Digges, William Digges III, Megan
Missett, and Ricardo Davis (“Coalition Plaintiffs”) respectfully submit this
memorandum to support its motion to issue a subpoena duces tecum to DeKalb
County Board of Registration and Elections (“DeKalb Board”) for the timely
production of certain electronic records, other documents and election equipment
for purposes of preservation and immediately required discovery.1 While Rule 45
permits the issuance of a subpoena to a non-party without reference to discovery
timing, Coalition Plaintiffs submit this motion in an abundance of caution given
the unusual circumstances of DeKalb Board’s recent transition from a Defendant
to a non-party, where this Court has retained jurisdiction over the records
1
The draft subpoena is attached to the Motion as Exhibit A.
1
preservation requirements of former Defendants.
In the alternative, if the Court is not inclined to grant the Coalition Plaintiffs
leave to issue a subpoena for the two DRE machines and other related evidence at
issue, then the Coalition Plaintiffs request that the Court require DeKalb County to turn
the subject DREs over to a third party for safekeeping subject to further order of the
Court.
Factual Background
Coalition Plaintiffs learned on June 11, 2018, that despite their repeated
requests for a litigation hold to all Defendants and specifically for sequestration of
two potentially problematic DRE machines by serial number and related
equipment used in early voting at South DeKalb Mall, the DeKalb Board
reportedly knowingly used and altered the electronic records in the internal DRE
memory by using those two purportedly “sequestered” DRE machines on June 6,
2018, to conduct a recount of the Senate District 41 May 22, 2018 primary
election.
Conducting the recount on these two machines involved loading hundreds of
memory cards from across the Senate District and tabulating results from them on
the two identified and supposedly “sequestered” DREs, which would indisputably
alter and potentially overwrite previous electronic records in the internal memory
of the two machines in question. This conduct constituted a blatant act of
2
spoliation of specifically identified and requested evidence that would have been
relevant to the issue of system malfunctions. The Coalition Plaintiffs request the
Court’s expedited intervention to protect evidence from further modification or
destruction.
1. DREs at issue involved in wrong ballot issuance
On May 5, 2018, Coalition Plaintiffs informed counsel for the State and
counsel for DeKalb County of Dr. Robert Kadel (“Kadel”) being issued an incorrect
electronic ballot on May 4, 2018, at South DeKalb Mall. Dr. Kadel is the Assistant
Director for Research in Education Innovation at Georgia Institute of Technology.
See Declaration of Dr. Kadel attached hereto as Exhibit “A.” Given that Kadel
verified his voter registration and sample ballot contents on the Secretary of State’s
website hours prior to voting, it appears that the errors in issuing the wrong ballot on
the DRE were generated downstream from the State’s voter registration database.
There could be many different causes of ballot issuance errors, such as erroneous
electronic poll book data or programs, erroneous algorithms creating the DRE ballot
style combination code, barcode scanner software errors, DRE voter access card
malware, or DRE machine programming errors.
Upon learning of Dr. Kadel’s experience, counsel for the Coalition Plaintiffs,
Cary Ichter, made counsel for the Secretary of State and for DeKalb County aware of
the issue by email dated May 5, 2018. A true and correct copy of Mr. Ichter’s email
3
is attached hereto as Exhibit “B.” Mr. Ichter’s email made it plain that immediate
machine sequestration prohibiting further election operations was essential to
preserve electronic records for forensic evaluation. Mr. Ichter’s email made the
following request:
We request that the above equipment be immediately secured by officials from

the Secretary of State’s office and DeKalb County and removed from the mall to
a secure election officials’ location. We also request that a representative of
Coalition Plaintiffs be permitted to observe the documentation of the removal
from service and securing of the equipment, including the recording of seal
numbers and serial numbers. Please notify us of the time that this will be
planned.
We also request that no analysis or operations be conducted using physical

access to the equipment and memory cards without Coalition Plaintiffs having
an opportunity to provide an expert to monitor the handling and analysis, and
obtaining exact electronic copies of all relevant records at the time of your
client’s inspection of the equipment and cards.
DeKalb Board’s counsel acknowledged the urgent email request but failed to
honor Coalition Plaintiffs’ request for observation by its expert of the machine
shutdown, removal from service, and securing of the equipment involved. Coalition
Plaintiffs independently learned from the polling place officials that DeKalb officials
removed the equipment on May 5, 2018, during the afternoon. The Coalition
Plaintiffs assumed that then-Defendant DeKalb Board and Defendant Brian Kemp
(the “Secretary”) took reasonable measures to preserve the relevant equipment and
records.
The Coalition Plaintiffs had planned and hoped to seek forensic discovery on
4
the sequestered equipment as soon as discovery was permitted in the case. Had the
Coalition Plaintiffs understood the defiance with which the DeKalb Board and
Secretary would respond to the request for preservation, the Coalition Plaintiffs
would have sought a Court order to have the equipment placed under the control of a
third-party custodian for safe-keeping.
2. Spoliation of evidence as “sequestered” machines used in SD41 Recount
On June 11, 2018, Marilyn Marks (“Marks”), the Coalition’s Executive
Director, received a call from Ms. Sabrina McKenzie (“McKenzie”), a candidate for
the Senate seat in District 41 (“SD41”). Marks was unaware of the June 6, 2018
recount being performed for the SD41 election in DeKalb and Gwinnett counties.
McKenzie reported to Marks that the recount had been conducted using two DRE
machines that had been used in early voting at South DeKalb Mall and that were
“sequestered in a federal lawsuit.” In other words, the recount apparently had been
conducted solely using the two “sequestered” machines. (See Exhibit C (counsel’s
letter explaining events)). McKenzie also reported that there was a broken lock on at
least one machine that required special tools to open, and expressed concern to Marks
about why locks would be broken on sequestered machines.
On June 13, 2018 Counsel for Coalition Plaintiffs wrote counsel for DeKalb
Board and counsel for the Secretary requesting information and confirmation that the
machines in question had been sequestered and not used to conduct the recount.
5
(Exhibit C). Coalition Plaintiffs have received no response to the June 13 letter and
have no information on the condition or security of the DRE machines, electronically
stored information or related equipment in question.
3. Continuing pattern of spoliation of evidence
The Secretary’s and the DeKalb Board’s history of reckless handling of
material evidence in defiance of this Court’s Order (Doc. 122) is further exacerbated
by the intentional overwriting of the only two specific DRE machines used in the
May 22, 2018 election that the Coalition Plaintiffs have yet requested for
preservation.
With an inventory of 2,500 machines that could have been selected for
conducting the recount, and without notice to Plaintiffs, the DeKalb Board used only
two---the two specifically requested by the Coalition Plaintiffs for preservation, the
two chosen because of the errors generated in connection with Dr. Kadel’s
experience. This follows a pattern of defiance of the Order of this Court (Doc. 122)
and the Coalition Plaintiff’s repeated litigation hold letters for electronically stored
information. Such incidents include:
a. On July 7, 2017, the Secretary’s agent allegedly “wiped” the primary
election server hard drive at Center for Election Systems, four (4) days after
this case was filed in Fulton County Superior Court. (Doc.160 ¶122)
b. On August 9, 2017 the Secretary’s agent allegedly “wiped” the secondary

6
election server, less than 24 hours after this case was removed to this Court.
(Doc.160 ¶123)
c. The DeKalb Board failed to preserve specifically requested DRE machines,
their election data and the memory cards from the November 2016,
November 2017, and December 2017 elections in violation of this Court’s
Order and numerous litigation hold requests from the Coalition Plaintiffs.
The DeKalb Board’s and the Secretary’s repeated willingness to destroy and alter
significant and important electronic election records should no longer be tolerated in
hopes that somehow enough evidence will be preserved to avoid further prejudice to
the pursuit of the Coalition Plaintiff’s claims. The intervention of this Court is both
needed and permitted to protect the evidence that remains and to permit the issuance
of a subpoena duces tecum to the non-party DeKalb Board for production of records
and equipment so that forensic review of materially important materials may get
underway. See, e.g., Thompson Insurance Enterprises, Inc. v. LIPCA, Inc., 2007 WL
9706825 (N.D.Ga. 2007) (favoring a flexible definition of good cause to permit
expedited discovery when considerations of justice outweigh prejudice to the
responding party); PowerPak International, LLC v. B.F. Machinery, Ltd., 2016 WL
9450407 (N.D.Ga. 2016) (noting that expedited discovery should be permitted where
proposed discovery is reasonable in scope, tailored to the needs for expedited
treatment, and seeking evidence in the opponent’s exclusive possession).
7
Alternative Request for Relief
In the alternative, if the Court is not inclined to grant the Coalition Plaintiffs
leave to issue a subpoena for the two DRE machines and other related evidence at
issue, then the Coalition Plaintiffs request that the Court require DeKalb County to
deliver the subject DREs and related equipment and records listed in the draft
subpoena to a third party for safekeeping subject to further order of the Court. To the
extent that the Secretary has taken possession of any of the requested equipment or
records, Coalition Plaintiffs request that any order apply to the Secretary as well.
Pursuant to Rule 26(c), this Court may for good cause issue an order to protect a
party—here the Coalition Plaintiffs—from oppression and undue burden. Rule 1
requires the Rules, including Rule 26, to be construed to secure the just determination
of every action and proceeding. These Rules authorize the relief sought by this
Motion. The destruction of evidence by the Defendants during the period when
discovery is stayed plainly creates an undue burden and oppression on all Plaintiffs,
who, unless protected from such improper conduct by the relief requested in this
Motion, stand to suffer the unfair impairment of their ability to marshal the evidence
they will require to sustain their burdens at trial. Avoiding such an outcome is good
cause for granting the relief requested by this Motion under Rule 26(c).
8
Conclusion
The DeKalb Board and the Secretary have engaged in a continuing pattern of
spoliation of evidence, ignoring this Court’s orders, Plaintiffs’ repeated litigation
hold letters, and Defendants’ duties under the law to preserve evidence. The DeKalb
Board and the Secretary have repeatedly demonstrated that they cannot be relied on
to protect and preserve key evidence in this case. The Coalition Plaintiffs will
continue to be prejudiced without the Court’s intervention to stop the ongoing records
destruction and permit the Coalition Plaintiffs to preserve the remaining evidence and
initiate forensic review of the relevant electronic records.
Therefore, the Coalition Plaintiff respectfully asks the Court to grant this
motion. A proposed order is attached to the Motion as Exhibit B.
Respectfully submitted this 20th day of June, 2018.
/s/ William Brent Ney /s/ Cary Ichter

William Brent Ney CARY ICHTER
Georgia Bar No. 542519 Georgia Bar No. 382515
Attorney for Coalition Attorney for Coalition
for Good Governance, William for Good Governance,
Digges III, Laura Digges, Ricardo William Digges III, Laura
Davis, and Megan Missett Digges, Ricardo Davis and
NEY HOFFECKER PEACOCK & HAYLE, Megan Missett
LLC ICHTER DAVIS LLC
One Midtown Plaza, Suite 1010 3340 Peachtree Road NE
1360 Peachtree Street NE Suite 1530
Atlanta, Georgia 30309 Atlanta, Georgia 30326
(404) 842-7232 (404) 869-7600
9
/s/ Bruce P. Brown /s/ Robert A. McGuire, III

Bruce P. Brown Robert A. McGuire, III
Georgia Bar No. 064460 Admitted Pro Hac Vice
BRUCE P. BROWN LAW LLC (ECF No. 125)
Attorney for Coalition for Attorney for Coalition
Good Governance for Good Governance, William
1123 Zonolite Rd. NE Digges III, Laura Digges, Ricardo
Suite 6 Davis, and Megan Missett
Atlanta, Georgia 30306 ROBERT MCGUIRE LAW FIRM
(404) 881-0700 113 Cherry St. #86685
Seattle, Washington 98104-2205
(253) 267-8530
10

ATLANTA DIVISION

Plaintiffs,
v.
BRIAN KEMP, ET AL.,

Defendants.
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing document has been prepared in
accordance with the font type and margin requirements of LR 5.1, using font
type of Times New Roman and a point size of 14.
/s/ Bruce P. Brown

Bruce P. Brown
Georgia Bar No. 064460
BRUCE P. BROWN LAW LLC
Attorney for Coalition for
Good Governance
1123 Zonolite Rd. NE
Suite 6
Atlanta, Georgia 30306
(404) 881-0700

ATLANTA DIVISION

Plaintiffs,
v.
BRIAN KEMP, ET AL.,

Defendants.
CERTIFICATE OF SERVICE
This is to certify that I have this day caused the foregoing MEMORNDUM
IN SUPPORT OF MOTION TO ISSUE SUBPOENA DUCES TECUM to be
served upon all other parties in this action by via electronic delivery using the
PACER-ECF system.
This 20th day of June, 2018.
/s/ Bruce P. Brown

Bruce P. Brown
Good Governance
Suite 6
(404) 881-0700
EXHIBIT A
TO
MEMORANDUM IN SUPPORT OF
PLAINTIFF COALITION’S
MOTION FOR ISSUANCE OF
SUBPOENA
Monday, June 11, 2018 at 9:35:22 PM Eastern Daylight Time
Subject: RE: Curling v. Kemp: Urgent Situa6on--CORRECTION

Date: Saturday, May 5, 2018 at 12:01:01 PM Eastern Daylight Time
From: Cary Ichter
To: John Salter, Bruce Brown, Adam Sparks, Halsey Knapp, Jane P. BentroQ,
Kaye.burwell@fultoncountyga.gov, david.lowman@fultoncountyga.gov,
Cheryl.ringer@fultoncountyga.gov, grant.schnell@hklaw.com, robert.highsmith@hklaw.com,
dwhite@hlclaw.com, william@nhphlaw.com, Robert McGuire, ccorreia@law.ga.gov,
jheidt@law.ga.gov, Roy Barnes, David D. Cross, Marilyn Marks
The machine number below is mistyped. The correct machine number is S/N 158583.
My apologies. Cary
Cary Ichter, Partner

Ichter Davis, LLC
3340 Peachtree Road NE
Suite 1530
Atlanta, GA 30326
phone 404.869.5243
fax 404.869.7610
cell 404.769.1353
cichter@IchterDavis.com
This e-mail message and all attachments may contain legally privileged and confidential information
intended solely for the use of the addressee. If you are not the intended recipient, you are hereby
notified that you may not read, copy, distribute or otherwise use this message or its attachments. If you
have received this message in error, please notify the sender by email and delete all copies of the
message immediately.
From: Cary Ichter

Sent: Saturday, May 5, 2018 11:33 AM
To: 'John Salter' <john@barneslawgroup.com>; 'Bruce Brown' <bbrown@brucepbrownlaw.com>; 'Adam
Sparks' <sparks@khlawfirm.com>; 'Halsey Knapp' <hknapp@khlawfirm.com>; 'Jane P. BentroQ'
<JBentroQ@mofo.com>; 'Kaye.burwell@fultoncountyga.gov' <Kaye.burwell@fultoncountyga.gov>;
'david.lowman@fultoncountyga.gov' <david.lowman@fultoncountyga.gov>;
'Cheryl.ringer@fultoncountyga.gov' <Cheryl.ringer@fultoncountyga.gov>; 'grant.schnell@hklaw.com'
<grant.schnell@hklaw.com>; 'robert.highsmith@hklaw.com' <robert.highsmith@hklaw.com>;
'dwhite@hlclaw.com' <dwhite@hlclaw.com>; 'william@nhphlaw.com' <william@nhphlaw.com>; 'Robert
McGuire' <ram@lawram.com>; 'ccorreia@law.ga.gov' <ccorreia@law.ga.gov>; 'jheidt@law.ga.gov'
<jheidt@law.ga.gov>; 'Roy Barnes' <roy@barneslawgroup.com>; 'David D. Cross' <DCross@mofo.com>;
'Marilyn Marks' <marilyn@aspenoffice.com>
Subject: FW: Curling v. Kemp: Urgent Situa6on
FYI—I just sent this email to John Salter and Bryan Bennett.

Ichter Davis, LLC
Page 1 of 4
Suite 1530
Atlanta, GA 30326
phone 404.869.5243
fax 404.869.7610
cell 404.769.1353
From: Cary Ichter <CIchter@IchterDavis.com>

Date: Saturday, May 5, 2018 at 11:26 AM
To: John Salter <john@barneslawgroup.com>, "Bryan, BenneQ D" <benbryan@dekalbcountyga.gov>
Cc: "Bruce Perrin Brown Esq. (bbrown@brucepbrownlaw.com)" <bbrown@brucepbrownlaw.com>,
Rob McGuire <ram@lawram.com>, "william@nhphlaw.com" <william@nhphlaw.com>, Marilyn Marks
<marilyn@aspenoffice.com>
Subject: Curling v. Kemp: Urgent Situa6on
John and Bennett,
Certain voting system irregularities were reported to us involving an early voting site in Decatur.
As we are collecting as many facts as we can, we ask that you cooperate with us to immediately
protect the evidence as well as the integrity of the primary election voting process.
Coalition Plaintiffs (Coalition for Good Governance, Ricardo Davis, Laura Digges, and William
Digges III) request that your clients immediately secure and sequester the following voting
equipment presently located at The Gallery at South DeKalb Mall, 2801 Candler Road Decatur,
GA 30034:
1. DRE Voting machines #116649 and #158543

2. Memory cards used the above-mentioned machines since the start of early voting at this
location
3. Memory cards in the ExpressPollbooks used from start of early voting through May 5th.
4. ExpressPollbooks used May 4 and May 5
5. Voter access cards used at this site since start of early voting
6. Ancillary equipment (such as barcode readers and electronic tablets) used in conjunction
with the voter check-in system and electronic pollbooks.
The reason for this urgent request is a report we received yesterday from Georgia Tech computer
science Professor Robert Kadel after he voted at this location. Because of his academic research,
Professor Kadel is familiar with certain technical aspects of voting systems. Therefore, his
personal experience and documentation of the issue has unquestioned credibility meriting
Page 2 of 4
immediately action. We will be providing a declaration from Professor Kadel, but in the
meantime, this is what he experienced:
1. Professor Robert Kadel, registered at 2426 Sherbrooke Ct NE, Atlanta, GA 30345,

arrived to vote at the above location at approximately noon on May 4.
2. Kadel checked in for voting with his driver’s license which was scanned for automatic
lookup in the ExpressPollbook.
3. Kadel requested a Democratic Party primary ballot.
4. Kadel was given a voter access card.
5. Kadel inserted the card in machine #116649, located toward a back corner of the room.
6. Kadel began to select his choices on the touchscreen and noticed that his electronic
ballot contained Congressional District 5 and State Senate 44, although he is an eligible
elector in Congressional District 6 and State Senate 42. He did not study the remainder
of the presented ballot for discrepancies.
7. Kadel immediately called this discrepancy to the attention of a poll worker.
8. The poll worker cancelled his partial ballot choices on the DRE and the voter access
card was ejected.
9. After some discussion, where poll workers initially insisted that the machine was
correct to a present CD5 ballot to him, he prevailed to obtain a new voter access card.
10. Kadel proceeded to machine #158583, which provided the proper CD6 and Senate 42
ballot. He selected his choices and cast his ballot at approximately 12:15 pm.
We request that the above equipment be immediately secured by officials from the Secretary of
State’s office and DeKalb County and removed from the mall to a secure election officials’
location. We also request that a representative of Coalition Plaintiffs be permitted to observe the
documentation of the removal from service and securing of the equipment, including the
recording of seal numbers and serial numbers. Please notify us of the time that this will be
planned.
We also request that no analysis or operations be conducted using physical access to the
equipment and memory cards without Coalition Plaintiffs having an opportunity to provide an
expert to monitor the handling and analysis, and obtaining exact electronic copies of all relevant
records at the time of your client’s inspection of the equipment and cards.
Coalition Plaintiffs will be promptly requesting mirror images of the DRE hard drives and most
other electronic records for the above-referenced equipment as well as other related records.
Please ensure that your clients are mindful of their obligations to preserve all electronic records
directly and indirectly related to this issue.
We are gravely concerned about the potential implications of this material discrepancy and urge
your clients to act promptly to determine the nature of this discrepancy and the potentially
broader implications for the integrity of the election.
Please acknowledge your receipt of this email. We want to be certain that your clients are
immediately aware of this issue since early voting is occurring this weekend.
Page 3 of 4
Feel free to contact me to further discuss this matter and how we should work together to
immediately address it. You may reach me at 404-769-1353. In the meantime, we will be
preparing our more formal request and Professor Kadel’s declaration, and alert you if we learn of
further material information.
Cary

Ichter Davis, LLC
Suite 1530
Atlanta, GA 30326
phone 404.869.5243
fax 404.869.7610
cell 404.769.1353
Page 4 of 4
EXHIBIT B
TO
SUBPOENA

FOR THE NORTHERN DISTRICT OF
GEORGIA ATLANTA DIVISION

Plaintiffs,
v.
BRIAN KEMP, ET AL.,

Defendants.
DECLARATION OF ROB KADEL
I, ROBERT S. KADEL pursuant to 28 U.S.C. § 1746, hereby declare as
follows:
1. I am a registered voter in DeKalb County, Georgia, and registered to vote
at my home address of 2426 Sherbrooke Ct. NE, Atlanta, GA 30345.
2. I am employed by the Georgia Institute of Technology as Assistant
Director for Research in Education Innovation, Center for 21st Century
Universities.
3. My research in conjunction with the Computer Science Department at
Georgia Institute of Technology has caused me to seek a greater
understanding of the operation of touchscreen voting systems.

4. Therefore when I voted in advance voting on May 4, 2018 at The Gallery
at South DeKalb Mall in Decatur, Georgia, I was attentive to the details
of the voting process.
5. Prior to voting, I had accessed the Georgia Secretary of State’s website
to check my registration details and print a sample ballot for races and
questions for which I am eligible to vote.
6. I carried my marked sample ballot with me to the polling place for
reference.
7. I arrived at the polling place at approximately noon, and there were very
few people in the polling place.
8. I filled out the paper form for application for early voting and handed a
poll worker that completed form and my driver’s license. The poll
worker verified my information and signature and then asked me to take
my license and the form to another table with four laptops on it.
9. At that table, I gave the poll worker my form and license. She scanned
my license barcode and handed it back, then she gave me an activated
yellow voter access card with which to initiate the voting process on the
touchscreen machine.
10. I used a machine with serial number 116649.

11. I selected choices in the races for Governor and a few others and then
noticed that the electronic ballot presented on the screen displayed
Congressional District 5 and State Senate District 44.
12. I live in Congressional District 6 and State Senate District 42, and was
alarmed to see races to vote for which I am ineligible, and to see that my
electronic ballot was missing races for which I am eligible to vote.
13. I alerted a poll worker who alerted her supervisor, Ms. Atkinson, who
was managing certain areas of the polling place that I had an incorrect
ballot.
14. The poll worker whom I had alerted held her finger on the “page" button
at the bottom of the machine screen for about 10 seconds and then
cancelled my ballot and ejected the card.
15. The poll worker and I walked over to the table of laptops where they
were coding the yellow voter access cards, and I explained that I should
be voting in Georgia Congressional District 6 and Georgia State Senate
District 42.
16. The poll worker said that if I was seeing “Georgia 5,” it is because I live
in “Georgia 5.”
17. I told her that I had voted in the Georgia’s 6th Congressional District
Special Election last year.

18. I have not changed my residence since voting in the 6th District Special
Election in 2017.
19. The poll worker called over Ms. Atkinson who looked at the sample
ballot I had brought with me (to indicate which candidates I wanted to
vote for). The supervisor said that I had a nonpartisan ballot that
wouldn’t have shown any races.
20. I corrected her and said that this was the Democratic sample ballot that I
had printed at home, and that she could see that it had the Stacey
Abrams / Stacey Evans race for Governor at the top.
21. Ms. Atkinson instructed another poll worker to re-enter my information
into a touch screen device sitting on the table (operated with an
electronic stylus), and then they finally saw that I had been presented
with the wrong ballot.
22. They generated a new yellow voter access card for me at that time,
which was approximately 12:11 pm.
23. The original poll worker with whom I had spoken walked back with me
to the machines and I voted on machine serial number 158583.
24. The poll worker watched me insert my card and asked if I would quickly
hit the Next button to get to the screens with the congressional races and
verify that I was presented with the correct races on the electronic ballot.
I did that, and all looked correct.
25. The poll worker then left to provide voter privacy, and I skipped back to
the beginning and began making my electoral selections.
26. I cast that electronic ballot on the touchscreen machine at 12:15 p.m.
27. I walked to another table and returned my yellow card to another poll
worker. She asked me if I had time to take a survey, and I said that I
really needed to get going.
I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS
TRUE AND CORRECT.
Executed on May 7, 2018
______________________
Robert S. Kadel
EXHIBIT C
TO
SUBPOENA

From: Cary Ichter
The machine number below is mistyped. The correct machine number is S/N
158583
158583. My apologies. Cary

Ichter Davis, LLC
Suite 1530
Atlanta, GA 30326
phone 404.869.5243
fax 404.869.7610
cell 404.769.1353
notified that you may not read, copy, distribute or otherwise use this message or its attachments. If
you have received this message in error, please notify the sender by email and delete all copies of the
From: Cary Ichter

Ichter Davis, LLC
Suite 1530
Atlanta, GA 30326
phone 404.869.5243
fax 404.869.7610
cell 404.769.1353
Page 1 of 4

John and Bennett,

Certain voting system irregularities were reported to us involving an early voting site in
Decatur. As we are collecting as many facts as we can, we ask that you cooperate with us to
immediately protect the evidence as well as the integrity of the primary election voting process.
GA 30034:
2. Memory cards used the above-mentioned machines since the start of early voting at
this location
3. Memory cards in the ExpressPollbooks used from start of early voting through May
5th.
6. Ancillary equipment (such as barcode readers and electronic tablets) used in
conjunction with the voter check-in system and electronic pollbooks.
The reason for this urgent request is a report we received yesterday from Georgia Tech
computer science Professor Robert Kadel after he voted at this location. Because of his academic
research, Professor Kadel is familiar with certain technical aspects of voting systems. Therefore,
his personal experience and documentation of the issue has unquestioned credibility meriting
5. Kadel inserted the card in machine #116649, located toward a back corner of the
room.
Page 2 of 4
ballot contained Congressional District 5 and State Senate 44, although he is an
eligible elector in Congressional District 6 and State Senate 42. He did not study the
remainder of the presented ballot for discrepancies.
card was ejected.
correct to a present CD5 ballot to him, he prevailed to obtain a new voter access
card.
10. Kadel proceeded to machine #158583, which provided the proper CD6 and Senate
42 ballot. He selected his choices and cast his ballot at approximately 12:15 pm.
planned.
expert to monitor the handling and analysis, and obtaining exact electronic copies of all
relevant records at the time of your client’s inspection of the equipment and cards.
We are gravely concerned about the potential implications of this material discrepancy and
urge your clients to act promptly to determine the nature of this discrepancy and the
potentially broader implications for the integrity of the election.
preparing our more formal request and Professor Kadel’s declaration, and alert you if we learn
of further material information.
Cary
Ichter Davis, LLC
Suite 1530
Atlanta, GA 30326
phone 404.869.5243
fax 404.869.7610
cell 404.769.1353
Page 3 of 4
Page 4 of 4
Case 1:17-cv-02989-AT Document 230 Filed 06/20/18 Page 1 of 24

ATLANTA DIVISION

Plaintiffs,
v.
BRIAN KEMP, ET AL.,

Defendants.
COALITION PLAINTIFFS’ MOTION FOR

ISSUANCE OF SUBPOENA
Plaintiff Coalition for Good Governance, Laura Digges, William Digges III,
Ricardo Davis and Megan Missett (“Coalition Plaintiffs”) respectfully move the
Court for entry of an Order permitting issuance of a subpoena substantially in the
form of the Draft Subpoena Duces Tecum attached as Exhibit A for the production
of specifically identified DeKalb County electronic election records.
Undersigned Counsel has attempted to confer with counsel for Secretary
Kemp and counsel for DeKalb County Board of Registration and Elections and has
not received a response.
WHEREFORE Coalition Plaintiffs respectfully request that this Court enter an
order GRANTING this motion. A proposed order is attached hereto as Exhibit B.
1
Respectfully submitted this 20th day of June, 2018.
/s/ William Brent Ney /s/ Cary Ichter

William Brent Ney CARY ICHTER
Georgia Bar No. 542519 Georgia Bar No. 382515
Attorney for Coalition Attorney for Coalition
for Good Governance, William for Good Governance, William
Digges III, Laura Digges, Ricardo Davis, Digges III, Laura Digges, Ricardo
and Megan Missett Davis and Megan Missett
NEY HOFFECKER PEACOCK & HAYLE, LLC ICHTER DAVIS LLC
One Midtown Plaza, Suite 1010 3340 Peachtree Road NE
1360 Peachtree Street NE Suite 1530
Atlanta, Georgia 30309 Atlanta, Georgia 30326
(404) 842-7232 (404) 869-7600
/s/ Bruce P. Brown /s/ Robert A. McGuire, III

Bruce P. Brown Robert A. McGuire, III
Georgia Bar No. 064460 Admitted Pro Hac Vice
BRUCE P. BROWN LAW LLC (ECF No. 125)
Attorney for Coalition for Attorney for Coalition
Good Governance for Good Governance, William
1123 Zonolite Rd. NE Digges III, Laura Digges, Ricardo
Suite 6 Davis, and Megan Missett
Atlanta, Georgia 30306 ROBERT MCGUIRE LAW FIRM
(404) 881-0700 113 Cherry St. #86685
Seattle, Washington 98104-2205
(253) 267-8530

ATLANTA DIVISION

Plaintiffs,
v.
BRIAN KEMP, ET AL.,

Defendants.
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing document has been prepared in
accordance with the font type and margin requirements of LR 5.1, using font
type of Times New Roman and a point size of 14.
/s/ Bruce P. Brown

Bruce P. Brown
Good Governance
Suite 6
(404) 881-0700

ATLANTA DIVISION

Plaintiffs,
v.
BRIAN KEMP, ET AL.,

Defendants.
CERTIFICATE OF SERVICE
This is to certify that I have this day caused the foregoing MOTION TO
ISSUE SUBPOENA DUCES TECUM to be served upon all other parties in this
action by via electronic delivery using the PACER-ECF system.
This 20th day of June, 2018.
/s/ Bruce P. Brown

Bruce P. Brown
Good Governance
Suite 6
(404) 881-0700
EXHIBIT A
TO
SUBPOENA
AO 88B (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
__________ District of
of Georgia
__________
Curling, et al.
)
Plaintiff )
v. ) Civil Action No. 1:17-CV-2989-AT
Kemp, et al. )
)
Defendant )
SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS

OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
To: Erica Hamilton, (Director DeKalb County Elections)
(Name of person to whom this subpoena is directed)
’ 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
material: See Exhbit 1.
Place: Ichter-Davis, LLC Date and Time:

3340 Peachtree Rd NE #1530
Atlanta, GA 30326
’ 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(c), 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 (g), relating to your duty to
respond to this subpoena and the potential consequences of not doing so.
Date:
CLERK OF COURT
OR
Signature of Clerk or Deputy Clerk Attorney’s signature
The name, address, e-mail address, and telephone number of the attorney representing (name of party) Coalition for Good
Governance, Laura Digges, William Digges III, and Megan Missett , who issues or requests this subpoena, are:
Bruce Perrin Brown, 1123 Zonolite Rd. NE, Suite 6, Atlanta, GA 30306 (404) 881 0700; bbrown@brucebrownlaw.com
Notice to the person who issues or requests this subpoena

If this subpoena commands the production of documents, 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. 45(a)(4).
AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)
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, if any)

on (date) .
’ I served the subpoena by delivering a copy to the named person as follows:
on (date) ; or
’ I returned the subpoena unexecuted because:

.
Unless the subpoena was issued on behalf of the United States, or one of its officers 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’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc.:
Print Save As... Add Attachment Reset

AO 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 (c), (d), (e), and (g) (Effective 12/1/13)
(c) Place of Compliance. (ii) disclosing an unretained expert’s opinion or information that does
not describe specific occurrences in dispute and results from the expert’s
(1) For a Trial, Hearing, or Deposition. A subpoena may command a study that was not requested by a party.
person to attend a trial, hearing, or deposition only as follows: (C) Specifying Conditions as an Alternative. In the circumstances
(A) within 100 miles of where the person resides, is employed, or described in Rule 45(d)(3)(B), the court may, instead of quashing or
regularly transacts business in person; or modifying a subpoena, order appearance or production under specified
(B) within the state where the person resides, is employed, or regularly conditions if the serving party:
transacts business in person, if the person (i) shows a substantial need for the testimony or material that cannot be
(i) is a party or a party’s officer; or otherwise met without undue hardship; and
(ii) is commanded to attend a trial and would not incur substantial (ii) ensures that the subpoenaed person will be reasonably compensated.
expense.
(e) Duties in Responding to a Subpoena.
(2) For Other Discovery. A subpoena may command:
(A) production of documents, electronically stored information, or (1) Producing Documents or Electronically Stored Information. These
tangible things at a place within 100 miles of where the person resides, is procedures apply to producing documents or electronically stored
employed, or regularly transacts business in person; and information:
(B) inspection of premises at the premises to be inspected. (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
(d) Protecting a Person Subject to a Subpoena; Enforcement. must organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney If a subpoena does not specify a form for producing electronically stored
responsible for issuing and serving a subpoena must take reasonable steps information, the person responding must produce it in a form or forms in
to avoid imposing undue burden or expense on a person subject to the which it is ordinarily maintained or in a reasonably usable form or forms.
subpoena. The court for the district where compliance is required must (C) Electronically Stored Information Produced in Only One Form. The
enforce this duty and impose an appropriate sanction—which may include person responding need not produce the same electronically stored
lost earnings and reasonable attorney’s fees—on a party or attorney who information in more than one form.
fails to comply. (D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored information
(2) Command to Produce Materials or Permit Inspection. from sources that the person identifies as not reasonably accessible because
(A) Appearance Not Required. A person commanded to produce of undue burden or cost. On motion to compel discovery or for a protective
documents, electronically stored information, or tangible things, or to order, the person responding must show that the information is not
permit the inspection of premises, need not appear in person at the place of reasonably accessible because of undue burden or cost. If that showing is
production or inspection unless also commanded to appear for a deposition, made, the court may nonetheless order discovery from such sources if the
hearing, or trial. requesting party shows good cause, considering the limitations of Rule
(B) Objections. A person commanded to produce documents or tangible 26(b)(2)(C). The court may specify conditions for the discovery.
things or to permit inspection may serve on the party or attorney designated
in the subpoena a written objection to inspecting, copying, testing, or (2) Claiming Privilege or Protection.
sampling any or all of the materials or to inspecting the premises—or to (A) Information Withheld. A person withholding subpoenaed information
producing electronically stored information in the form or forms requested. under a claim that it is privileged or subject to protection as trial-preparation
The objection must be served before the earlier of the time specified for material must:
compliance or 14 days after the subpoena is served. If an objection is made, (i) expressly make the claim; and
the following rules apply: (ii) describe the nature of the withheld documents, communications, or
(i) At any time, on notice to the commanded person, the serving party tangible things in a manner that, without revealing information itself
may move the court for the district where compliance is required for an privileged or protected, will enable the parties to assess the claim.
order compelling production or inspection. (B) Information Produced. If information produced in response to a
(ii) These acts may be required only as directed in the order, and the subpoena is subject to a claim of privilege or of protection as
order must protect a person who is neither a party nor a party’s officer from trial-preparation material, the person making the claim may notify any party
significant expense resulting from compliance. that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified
(3) Quashing or Modifying a Subpoena. information and any copies it has; must not use or disclose the information
(A) When Required. On timely motion, the court for the district where until the claim is resolved; must take reasonable steps to retrieve the
compliance is required must quash or modify a subpoena that: information if the party disclosed it before being notified; and may promptly
(i) fails to allow a reasonable time to comply; present the information under seal to the court for the district where
(ii) requires a person to comply beyond the geographical limits compliance is required for a determination of the claim. The person who
specified in Rule 45(c); produced the information must preserve the information until the claim is
(iii) requires disclosure of privileged or other protected matter, if no resolved.
exception or waiver applies; or
(iv) subjects a person to undue burden. (g) Contempt.
(B) When Permitted. To protect a person subject to or affected by a The court for the district where compliance is required—and also, after a
subpoena, the court for the district where compliance is required may, on motion is transferred, the issuing court—may hold in contempt a person
motion, quash or modify the subpoena if it requires: who, having been served, fails without adequate excuse to obey the
(i) disclosing a trade secret or other confidential research, subpoena or an order related to it.
development, or commercial information; or
For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
EXHIBIT 1
TO
SUBPOENA TO ERICA
HAMILTON (DeKalb County
Elections)
Please produce:
1. DRE serial numbers 116649 and 158583 used in early voting at South
DeKalb Mall or exact electronic copies (“block copies”) of internal memories of
these specific machines.
2. Memory cards (or exact copies) used in the above-mentioned
machines during the May 22, 2018 election.
3. Memory cards (or exact copies) in the ExpressPollbooks at South
DeKalb Mall used from start of early voting through May 5, 2018.
4. ExpressPollbooks used May 4 and May 5, 2018.
5. Voter access cards used at South DeKalb Mall from the start of
early voting through May 5, 2018.
6. Ancillary equipment (such as barcode readers and electronic
tablets) used in conjunction with the voter check-in system, electronic
pollbooks, and ballot issuance.
7. All records which document the chain of custody and security
(such as sealing records) of each item listed in 1 through 6 above.
8. True and correct opies of Security video recordings or other video
recordings of activities in the DeKalb County Election Office related to the
conduct of a recount on June 6, 2018.
9. Recap sheets that include a report of ballot totals for the DRE
machines in #1 above.
10. Copy of machine tally results tapes for the DRE machines in #1
above.
11. Audit logs (also known as “system logs”) for the DRE machines in
#1 above.
12. All documents related to or regarding the ballot issuance error
reported to Bennett Bryan in the email attached as Exhibit 2, including any
investigation materials or reports.
13. Documents related to the use of the DRE machines in #1 in the
June 6, 2018 recount.
14. Documents related to broken locks on DRE machines in #1 above,
and any other security-related irregularities.
15. Documents that would lead to the discovery of unique identifiers
associated with electronic ballots issued to individual voters during early
voting at South DeKalb Mall.
16. Documents recording the issuance of each ballot to Robert Kadel
described in Exhibit 3 attached.
17. Documents that reflect the unique identifier of the ballot cast by
Robert Kadel.
18. Documents recording the cancellation of the original ballot issued
to Robert Kadel described in Exhibit 2 attached.
EXHIBIT 2
TO
SUBPOENA TO ERICA
Elections)
Monday, June 11, 2018 at 9:35:22 PM Eastern Daylight Time

From: Cary Ichter
The machine number below is mistyped. The correct machine number is S/N 158583.
My apologies. Cary

Ichter Davis, LLC
Suite 1530
Atlanta, GA 30326
phone 404.869.5243
fax 404.869.7610
cell 404.769.1353
From: Cary Ichter


Ichter Davis, LLC
Page 1 of 4
Suite 1530
Atlanta, GA 30326
phone 404.869.5243
fax 404.869.7610
cell 404.769.1353

John and Bennett,
Certain voting system irregularities were reported to us involving an early voting site in Decatur.
As we are collecting as many facts as we can, we ask that you cooperate with us to immediately
protect the evidence as well as the integrity of the primary election voting process.
GA 30034:

2. Memory cards used the above-mentioned machines since the start of early voting at this
location
3. Memory cards in the ExpressPollbooks used from start of early voting through May 5th.
6. Ancillary equipment (such as barcode readers and electronic tablets) used in conjunction
with the voter check-in system and electronic pollbooks.
The reason for this urgent request is a report we received yesterday from Georgia Tech computer
science Professor Robert Kadel after he voted at this location. Because of his academic research,
Professor Kadel is familiar with certain technical aspects of voting systems. Therefore, his
personal experience and documentation of the issue has unquestioned credibility meriting
Page 2 of 4

5. Kadel inserted the card in machine #116649, located toward a back corner of the room.
ballot contained Congressional District 5 and State Senate 44, although he is an eligible
elector in Congressional District 6 and State Senate 42. He did not study the remainder
of the presented ballot for discrepancies.
card was ejected.
correct to a present CD5 ballot to him, he prevailed to obtain a new voter access card.
10. Kadel proceeded to machine #158583, which provided the proper CD6 and Senate 42
ballot. He selected his choices and cast his ballot at approximately 12:15 pm.
planned.
expert to monitor the handling and analysis, and obtaining exact electronic copies of all relevant
records at the time of your client’s inspection of the equipment and cards.
We are gravely concerned about the potential implications of this material discrepancy and urge
your clients to act promptly to determine the nature of this discrepancy and the potentially
broader implications for the integrity of the election.
Page 3 of 4
preparing our more formal request and Professor Kadel’s declaration, and alert you if we learn of
further material information.
Cary

Ichter Davis, LLC
Suite 1530
Atlanta, GA 30326
phone 404.869.5243
fax 404.869.7610
cell 404.769.1353
Page 4 of 4
EXHIBIT 3
TO
SUBPOENA TO ERICA
Elections)

FOR THE NORTHERN DISTRICT OF
GEORGIA ATLANTA DIVISION

Plaintiffs,
v.
BRIAN KEMP, ET AL.,

Defendants.
DECLARATION OF ROB KADEL
I, ROBERT S. KADEL pursuant to 28 U.S.C. § 1746, hereby declare as
follows:
1. I am a registered voter in DeKalb County, Georgia, and registered to vote
at my home address of 2426 Sherbrooke Ct. NE, Atlanta, GA 30345.
2. I am employed by the Georgia Institute of Technology as Assistant
Director for Research in Education Innovation, Center for 21st Century
Universities.
3. My research in conjunction with the Computer Science Department at
Georgia Institute of Technology has caused me to seek a greater
understanding of the operation of touchscreen voting systems.

4. Therefore when I voted in advance voting on May 4, 2018 at The Gallery
at South DeKalb Mall in Decatur, Georgia, I was attentive to the details
of the voting process.
5. Prior to voting, I had accessed the Georgia Secretary of State’s website
to check my registration details and print a sample ballot for races and
questions for which I am eligible to vote.
6. I carried my marked sample ballot with me to the polling place for
reference.
7. I arrived at the polling place at approximately noon, and there were very
few people in the polling place.
8. I filled out the paper form for application for early voting and handed a
poll worker that completed form and my driver’s license. The poll
worker verified my information and signature and then asked me to take
my license and the form to another table with four laptops on it.
9. At that table, I gave the poll worker my form and license. She scanned
my license barcode and handed it back, then she gave me an activated
yellow voter access card with which to initiate the voting process on the
touchscreen machine.
10. I used a machine with serial number 116649.

11. I selected choices in the races for Governor and a few others and then
noticed that the electronic ballot presented on the screen displayed
Congressional District 5 and State Senate District 44.
12. I live in Congressional District 6 and State Senate District 42, and was
alarmed to see races to vote for which I am ineligible, and to see that my
electronic ballot was missing races for which I am eligible to vote.
13. I alerted a poll worker who alerted her supervisor, Ms. Atkinson, who
was managing certain areas of the polling place that I had an incorrect
ballot.
14. The poll worker whom I had alerted held her finger on the “page" button
at the bottom of the machine screen for about 10 seconds and then
cancelled my ballot and ejected the card.
15. The poll worker and I walked over to the table of laptops where they
were coding the yellow voter access cards, and I explained that I should
be voting in Georgia Congressional District 6 and Georgia State Senate
District 42.
16. The poll worker said that if I was seeing “Georgia 5,” it is because I live
in “Georgia 5.”
17. I told her that I had voted in the Georgia’s 6th Congressional District
Special Election last year.

18. I have not changed my residence since voting in the 6th District Special
Election in 2017.
19. The poll worker called over Ms. Atkinson who looked at the sample
ballot I had brought with me (to indicate which candidates I wanted to
vote for). The supervisor said that I had a nonpartisan ballot that
wouldn’t have shown any races.
20. I corrected her and said that this was the Democratic sample ballot that I
had printed at home, and that she could see that it had the Stacey
Abrams / Stacey Evans race for Governor at the top.
21. Ms. Atkinson instructed another poll worker to re-enter my information
into a touch screen device sitting on the table (operated with an
electronic stylus), and then they finally saw that I had been presented
with the wrong ballot.
22. They generated a new yellow voter access card for me at that time,
which was approximately 12:11 pm.
23. The original poll worker with whom I had spoken walked back with me
to the machines and I voted on machine serial number 158583.
24. The poll worker watched me insert my card and asked if I would quickly
hit the Next button to get to the screens with the congressional races and
verify that I was presented with the correct races on the electronic ballot.
I did that, and all looked correct.
25. The poll worker then left to provide voter privacy, and I skipped back to
the beginning and began making my electoral selections.
26. I cast that electronic ballot on the touchscreen machine at 12:15 p.m.
27. I walked to another table and returned my yellow card to another poll
worker. She asked me if I had time to take a survey, and I said that I
really needed to get going.
I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS
TRUE AND CORRECT.
Executed on May 7, 2018
______________________
Robert S. Kadel
EXHIBIT B
TO
SUBPOENA

NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
)
)
DONNA CURLING, ET AL. )
)
Plaintiffs, )
) Civil Action
v. ) No. 1:17-cv-02989-AT
)
BRIAN KEMP, ET AL. )
)
Defendants. )
)
[PROPOSED] ORDER
On June 20, 2018, Plaintiffs Coalition for Good Governance, Laura Digges,
William Digges, and Ricardo Davis filed their Coalition Plaintiffs’ Motion To Issue
Subpoena Duces Tecum (the “Motion”).
Having considered the Motion and finding good cause is shown, the Motion
is GRANTED.
IT IS SO ORDERED this _______day of June, 2018.
__________________________
AMY TOTENBERG
United States District Judge

Motion To Issue Subpoena For DeKalb DRE - 6.20.18

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Case 1:17-cv-02989-AT Document 230-1 Filed 06/20/18 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT

DONNA CURLING, ET AL.,

BRIAN KEMP, ET AL.,

COALITION PLAINTIFFS’ MEMORANDUM IN SUPPORT OF

Missett, and Ricardo Davis (“Coalition Plaintiffs”) respectfully submit this

memorandum to support its motion to issue a subpoena duces tecum to DeKalb

production of certain electronic records, other documents and election equipment

for purposes of preservation and immediately required discovery.1 While Rule 45

permits the issuance of a subpoena to a non-party without reference to discovery

timing, Coalition Plaintiffs submit this motion in an abundance of caution given

the unusual circumstances of DeKalb Board’s recent transition from a Defendant

preservation requirements of former Defendants.

two potentially problematic DRE machines by serial number and related

memory by using those two purportedly “sequestered” DRE machines on June 6,

Conducting the recount on these two machines involved loading hundreds of

of the two machines in question. This conduct constituted a blatant act of

Court’s expedited intervention to protect evidence from further modification or

1. DREs at issue involved in wrong ballot issuance

Director for Research in Education Innovation at Georgia Institute of Technology.

malware, or DRE machine programming errors.

machine sequestration prohibiting further election operations was essential to

We request that the above equipment be immediately secured by officials from

We also request that no analysis or operations be conducted using physical

third-party custodian for safe-keeping.

2. Spoliation of evidence as “sequestered” machines used in SD41 Recount

On June 11, 2018, Marilyn Marks (“Marks”), the Coalition’s Executive

about why locks would be broken on sequestered machines.

have no information on the condition or security of the DRE machines, electronically

stored information or related equipment in question.

3. Continuing pattern of spoliation of evidence

The Secretary’s and the DeKalb Board’s history of reckless handling of

information. Such incidents include:

a. On July 7, 2017, the Secretary’s agent allegedly “wiped” the primary

b. On August 9, 2017 the Secretary’s agent allegedly “wiped” the secondary

c. The DeKalb Board failed to preserve specifically requested DRE machines,

November 2017, and December 2017 elections in violation of this Court’s

significant and important electronic election records should no longer be tolerated in

9706825 (N.D.Ga. 2007) (favoring a flexible definition of good cause to permit

expedited discovery when considerations of justice outweigh prejudice to the

responding party); PowerPak International, LLC v. B.F. Machinery, Ltd., 2016 WL

proposed discovery is reasonable in scope, tailored to the needs for expedited

treatment, and seeking evidence in the opponent’s exclusive possession).

Alternative Request for Relief

party—here the Coalition Plaintiffs—from oppression and undue burden. Rule 1

spoliation of evidence, ignoring this Court’s orders, Plaintiffs’ repeated litigation

initiate forensic review of the relevant electronic records.

motion. A proposed order is attached to the Motion as Exhibit B.

Respectfully submitted this 20th day of June, 2018.

/s/ William Brent Ney /s/ Cary Ichter

/s/ Bruce P. Brown /s/ Robert A. McGuire, III

IN THE UNITED STATES DISTRICT COURT

DONNA CURLING, ET AL.,

BRIAN KEMP, ET AL.,

I hereby certify that the foregoing document has been prepared in

type of Times New Roman and a point size of 14.

/s/ Bruce P. Brown

IN THE UNITED STATES DISTRICT COURT

DONNA CURLING, ET AL.,

BRIAN KEMP, ET AL.,

IN SUPPORT OF MOTION TO ISSUE SUBPOENA DUCES TECUM to be

This 20th day of June, 2018.

/s/ Bruce P. Brown