January 11, 2016

Emails won’t be shielded, but defendants must disclose info in leaked email lawsuit

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Photo Credit: Joe Gratz cc

A federal magistrate judge Monday rejected a motion to protect hundreds of leaked emails from top staffers in the governor’s office from a high profile case among other measures.

Photo Credit: Joe Gratz cc

Photo Credit: Joe Gratz cc

Plaintiffs in an ongoing lawsuit involving leaked emails from the 2010 campaign account of Gov. Susana Martinez will now also be able to conduct discovery on the defendants. U.S. Magistrate Judge Stephan Vidmar limited the discovery to just a handful of issues: what emails were intercepted, who intercepted the emails, who publicly disclosed the intercepted emails and why they publicly disclosed them.

The judge made rulings against motions by both sides.

The developments mark the latest fallout in one of the longest ongoing scandals in Martinez’s governorship. It began with the leaking of emails from private accounts from some of her administration staffers in the summer of 2012. Some of these emails discussed controversial public subjects like a 25-year racino lease extension on public land sought out by two high-profile donors and shed light on lobbyist and insider access in the Martinez administration.

An FBI investigation led to the nine-month imprisonment of former campaign manager Jamie Estrada, who later admitted to intercepting some of the emails that were later leaked to the public. But that didn’t stop four citizens whose names appeared in some of the emails from suing Estrada and others allegedly involvement in the email scandal for damages.

Those in the Martinez administration and her political allies have criticized the release of the emails, which included a handful of emails on private subjects. Emails on private matters are not subject to the state’s open records law.

Attorneys for the plaintiffs sought out a protective order that sought to bar any content from the leaked emails from being used in the case and to bar the public from viewing the discovery process. The defendants filed an opposition, saying that what the protective order asked for was “absurd” because the majority of the leaked emails had been published on the website of the Santa Fe Reporter* since December of 2012. The newspaper put them online after receiving them as part of an open records request from then-Attorney General Gary King’s office.

Marc Flink, an attorney for the plaintiffs, argued Monday that the emails should be protected “whether or not they may be available on the obscure website of the Santa Fe Reporter.”

Particularly, Flink argued that one of his client’s work resumés was disclosed in one of the leaked emails published on the website. The resumé, Flink argued, “is not public information.”

But Kristina Martinez, an attorney representing defendant Michael Corwin, said enforcement of such an order would have “a chilling effect on this public process.”

“This court needs to be open,” she said.

She also argued that such an order would be “unenforceable.”

“They want to make something private that’s already public on a website,” Martinez said.

As for the resumé, Martinez said it came in an email sent to a state employee possibly about a state job.

“It’s not a private email,” she said. “It’s a matter of public concern and probably subject to [the state Inspection of Public Records Act].”

Flink argued that any arguments from defendants about what should constitute a public record should be taken seriously.

“The fingerprints of the defendants, however they got them, are all over the emails,” Flink said.

In addressing the issue, Judge Vidmar admitted that he was “somewhat sympathetic to the plaintiffs’ view.” But he denied the motion for all emails already that are already public and granted it for all new emails that could be produced from now on.

One of the defendants, Sam Bregman, also suffered a legal blow Monday. Jason Loera, a former employee for a political action committee run by Bregman, recently wrote a statement to the court alleging that Bregman directed him to seek out some of the intercepted emails for political gain.

Bregman, the immediate past Democratic Party of New Mexico chairman and defense attorney himself argued that communications between himself were subject to attorney-client privilege and couldn’t be released. Judge Vidmar rejected Bregman’s argument based on Loera’s written testimony that no such attorney-client privilege ever existed between them and is therefore subject to discovery.

Vidmar even went as far as to say that Bregman “raised a lot of meritless objections” in the case.

“No communication between those two is protected,” he said.

Defendants have until Feb. 10 to hand over documents as part of discovery.

*This reporter worked for the Santa Fe Reporter for nearly four years and participated in coverage referenced in this lawsuit and about the emails that are on the newspaper’s website.

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