o = < 4 aed a we ae we ne es = < Oo : 3 g 8 # z i ‘vow cba 1 2 EC he rile CAMPBELL & WILLIAMS 2428 AUG 1 J.COLBY WILLIAMS, ESQ. (5549) jowGewlawlycom AUBREY PHILIP R. ERWIN, ESQ. (11563) pre@owlavly co Tae SAMUEL R. MIRKOVICH, ESQ. (11662) side srnG@cwlavlv.com 710 South Seventh Stret, Suite A Las Vegas, Nevada 89101 Telephone: (702) 382-5222 Facsimile: (702) 382-0540 Attorneys for Defendant Joseph Lombardo FIRST JUDICIAL DISTRICT COURT CARSON CITY, NEVADA Case No.: 22 OC 0008518 Dept. No. JOBY GILBERT, an individual, Plaintiff, ORDER GRANTING DEFENDANT JOSEPH LOMBARDO’S MOTION FOR SUMMARY JUDGMENT vs. JOSEPH LOMBARDO, Republican candidate for Governor of Nevada, Defendant. ‘The matter before the Court is the Motion for Summary Judgment filed by Defendant Joseph Lombardo on August 1, 2022. The Court, having reviewed the papers, pleadings and supporting exhibits including deposition testimony on file in this matter and considered the arguments of ‘counsel at the time of hearing on August 10, 2022 as required by NRS 293.415, with good cause appearing and no just reason for delay, hereby rules as follows: 1. FINDINGS OF FACT 1. Mr. Gilbert's Statement of Contest relies on a two-step process set forth in the Solomon Report to demonstrate he received more votes in the 2022 Republican Gubernatorial Primary Election than Mr. Lombardo. See Statement of Contest $24. Page | of 6"ATTORNEYS AT LAW ‘0 Sou Seve STREET, SUTE A Las VEGAS, NEVADA 8910) CAMPBELL & WILLIAMS hone 123025292 -Fox 7023020580 ‘roncinpbekindvilionsom 10 u 12 3 4 1s 16 7 18 19 20 an 2 2B 24 25 26 a7 28 2. According to the Statement of Contest, the fist step is to demonstrate that the result of the 202 Republican Primary Election is mathematically or geometrically “impossible.” See Statement of Contest 432. After establishing that the reported results of the 2022 Republican Gubematorial Primary Election are mathematically or geometrically “impossible,” the second step is to “restore” the votes and determine the actual election results without the interference of a predetermined ‘outcome or algorithm. See Statement of Contest 19 36-48. 4. While Mr. Gilbert's expert witnesses purport to have performed the first step and reached the same conclusion as Mr. Edward Solomon—iee., that the results of the 2022 Republican Gubernatorial Primary Election are mathematically or geometrically “impossible,” none of them offer any opinions—admissible or otherwise—on the second step of “restoring” the actual vote counts. 5, The concept of “restoration” is addressed at length in Mr. Solomon's report attached 1a Exhibit A to the Statement of Contest (the “Solomon Report”). All parties agree, however, that Mr. Solomon does not qualify as an expert, and Mr, Gilbert has confirmed he will not be calling Mr. ‘Solomon as a witness in this proceeding. 6 One of Mr. Gilbert's proposed experts, Dr. Oliver A. Hemmers, ostensibly addresses the concept of “restoration” in his report attached as Exhibit B to the Statement of Contest. Dr. Hemmers’ alleged opinions on the subject are also quoted at length in the Statement of Contest. See Statement of Contest $f 51-52. But in his deposition, Dr. Hemmers admitted that he did not perform any work on “restoration” and merely copied portions of the Solomon Report. See Motion for ‘Summary Judgment (“Mot”), Ex. D. In other words, Dr. Hemmers did not offer any independent opinions on the concept of “restoration” and instead restated lengthy sections of the Solomon Report, ‘which is inadmissible for reasons set forth below. Page 2 0f 6‘10 Sour Sever SUEY, SUTE A Ls Ves, Neva 6910) CAMPBELL & WILLIAMS ATiORNEYS AT LAW 10 u 23200 18 19 20 a 2 Pry 25 26 2 28 7. Another of Mr. Gilbert’s proposed experts, Dr, G. Donald Allen, testified that he has “no idea” what the correct vote share is, did not perform any work related to the restoration of the ‘actual vote share, and does not “know how you can do it, to be honest.” See Mot., Ex. B. 8 Mr. Gilbert's final proposed expert, Dr. Walter C. Daugherity, likewise testified that he did not perform any work related to “restoring” the true vote counts from the 2022 Republican Primary Election. See Mot., Ex. C. 9. It is thus undisputed that the only individual who offered opinions to support the allegations in the Statement of Contest pertaining to the concept of “restoration” is non-expert, Mr. Solomon. 10. During the pendency of Mr. Lombardo’s summary judgment motion, Mr. Gilbert sought to re-depose his own expert witnesses for a second time, Setting aside that Mr. Gilbert's request to re-depose his own expert witnesses was procedurally improper, see Order dated August 8, 2022 (on file), there has been no offer of proof or other showing that a second deposition of Mr. Gilbert’ testifying expert witnesses would yield any competent evidence on “restoration” given their prior testimony on the issue. I. CONCLUSIONS OF LAW 1. In his Statement of Contest, Mr. Gilbert contests the results of the 2022 Nevada Primary Election pursuant to NRS 293.410(2)(4) and (f). Statement of Contest ff] 17-18. Thus, Mr. Gilbert must demonstrate that either “the election board, in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election as to any person who has been declared elected,” NRS 293.410(2)(¢), or that “there was a malfunction of any voting device or lectronic tabuletor, counting device or computer in a manner sufficient to raise reasonable doubt as to the outcome of the election.” NRS 293.410(2)(9. During the August 10, 2022 hearing on this motion, Mr. Gilbert's counsel further Page 3 of 6CAMPBELL & WILLIAMS ATTORNEYS AT LAW bs a est jal bey 5 a i ee raw een suggested that NRS 293.410(2)(a) and (c) were also potentially at issue in this election contest. Under those provisions, Mr. Gilbert must demonstrate that either “the election board or any member thereof was guilty of malfeasance,” NRS 293.419(a), or “(1) [i]llegal or improper votes were cast and counted; (2) [legal and proper votes were not counted; or (3) [a] combination of the circumstances described in subparagraphs (1) and (2) occurred, in an amount that is equal to or greater than the margin between the contestant and the defendant, or otherwise in an amount sufficient to raise reasonable doubt as to the outcome of the election.” NRS 293.410(2)(0). 3, To prevail, Mr. Gilbert must prove the grounds for his election contest by clear and convincing evidence. Law v. Whitmer, 477 P.34 1124, *1, 17 (Nev. 2020) (affirming application of the clear and convincing evidence standard in a contest of the 2020 Presidential Election) (listing supporting cases). “Clear and convincing evidence must be ‘satisfactory’ proof that is so strong and cogent as to satisfy the mind and conscience of a common man, and to convince him that he would Venture to act upon that conviction in matters of the highest concem and importance to his own interest.” Id. at *17 (quoting Jn re Discipline of Drakulich, 111 Nev. 1556, 1566, 908 P.2d 709, 715 (1995)). The Court views the evidence through the lens of the applicable burden of proof at the summary judgment stage. See Fergason v. LVMPD, 131 Nev, 939, 944, 364 P.34 592, 595 (2015). 4, Because Mr. Solomon does not qualify as an expert and Mr. Gilbert has declined to call him as a witness in this proceeding, the Solomon Report is inadmissible hearsay and Mr. Gilbert may not rely on its contents to prove his claims in this election contest. See Ramirez v, State, 114 Nev. 550, 560-61, 958 P.2d 724, 730-31 (1998) (holding medical examiner's written report was jined). inadmissible hearsay unless he was present to testify and be cross-ex: 5. Similarly, the Solomon Report elso does not constitute the type of evidence “ceasonably relied on by experts” under NRS 50.285(2). Indeed, “[rJeports specifically prepared for purposes of litigation are not, by definition, of a type reasonably relied upon by experts in the Page 4 of 6CAMPBELL & WILLIAMS ETORNEYS AT LAW ‘No sur Seven Seer, Sue A, Las Vegas, NevADA $9101 particular field.” United States v. Tran Trong Cuong, 18 F.3d 1132, 1143-44 (1994); see also In re Imperial Credit Indus., Ino. Sec. Litig., 252 F.Supp.2d 1005, 1012 (C.D. Cal. 2003) (“Federal Rules of Evidence 702 and 703 permit an expert to rely upon ‘facts and data.” The rules do not permit an expert to rely upon excerpts from opinions developed by another expert for purposes of litigation"); Avondale Mills, Inc. v. Norfolk S. Corp., 2008 WL 6953956, at *3 (D. S.C. Feb. 21, 2008) (“It has ‘been held that reports prepared for purposes of litigation { ] are not ‘of a type reasonably relied upon by experts in a particular field.""). 6 Mr. Gilbert cites to Dr. Hemmers’ report as the basis for many of his allegations conceming “restoration.” Dr. Hemmers, however, made it clear in his deposition that he effectively copied Mr. Solomon's opinions on the subject. To that end, Dr. Hemmers does not offer any independent opinions on “restoration” and his restatement of the Solomon Report is improper from an evidentiary standpoint, Ramirez, 114 Nev. at 558, 958 P.2d at 729 (summarizing United States 1g principle that a testifying expert witness v. Tran Trong Cuong, 18 F.3d 1132 (1994) and res may not vouch for and parrot the opinions of # non-testifying expert witness); Villagomes v. Laboratory Corp. of Am., 2010 WL 4628085, at *4 (D. Nev. Nov. 8, 2010) (“an expert may rely on information provided by non-testifying experts, so long as he does not merely serve as a spokesman for the absent expert, vouching for the truth of his statements”) (citing several supporting cases), 7. Dr, Allon and Dr. Daugherity both acknowledged that they did not attempt to “restore” the true vote counts end have no opinions on the subject. 8 Accordingly, even if the Court were to accept Mr. Solomon’s theories that the result of the 2022 Republican Primary Election is mathematically or geometrically “impossible,” Mr. Gilbert has not presented any competent evidence that the allegedly flawed math means he received ‘more votes than Mr. Lombardo as none of his proposed testifying expert witnesses have offered any opinions on the concept of “restoration” or the results it would purportedly yield in the 2022 Page 5 of 6ATTORNEYS AT LAW CAMPBELL & WILLIAMS Republican Gubernatorial Primary Election, For the same reasons, Mr. Gilbert cannot demonstrate there is evidence sufficient to raise reasonable doubt as to the outcome of the election. Nor is there ‘any competent evidence that the election board or any member thereof was guilty of malfeasance. The clear absence of admissible evidence on these subjects is insufficient to meet the heightened i clear and convincing standard that applies to Mr. Gilbert's theories under NRS 293.410(2)(a), (c), 7] ord. Accordingly, the Court hereby grants summary judgment in favor of Mr. Lombardo. 8 I. ORDER pee ITIS HEREBY ORDERED AND ADJUDGED that Mr. Lombardo's Motion for Summary : 10] Judgment is GRANTED and Mr. Gilbert's Statement of Contest is DISMISSED WITH bg 11) presuDICE. 3 i e IT IS FURTHER ORDERED that the August 12, 2022 hearing date is VACATED. 24” ITIS SO ORDERED on this_¢/_ day of August, 2022. & z DISFRICT COURT JUDGE : 17} Respectully submited by 2 '81 CAMPBELL & WILLIAMS , 19 com 20 ‘PHILIP R. ERWIN, ESQ. (11563) 21] SAMUEL R. MIRKOVICH, ESQ. (11662) gq | 710 South Seventh Steet Las Vegas, Nevade 89101 23] Atorneys for Defendant Joseph Lombardo 24 25 26 2” 2B Page 6 of 6