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Att u NcoMN,tL)N tRACTIctl

July 10,2018

VIA EMAIL ONLY TO: marilvn@aspenoffice.com

Ms. Marilyn Marks

RE: Open Records Requests of June 28,2O1B and June 30, 2018

Dear Ms. Marks:

After reviewing your Open Records Requests and the documents which you seek
from the Hall County Board of Elections and Registration, as wellas correspondence sent
from attorney Cary lchter, who represents the p laintiffs in the case of Curlinq et al. v.
Kemp, et al. ,17 CV-02989-AT, as currently pending in the United States District Court for
the Northern District, Atlanta Division and the order issued by Judge Totenburg in that
case, dated the Sth day of September,2O17, which stays discovery by all parties in the
case, it would appear that, notwithstanding your express representations made to Ms.
Lori Wurtz of the Hall County Board of Elections and Registration, as well as to the Clerk
of the Hall County Commission (Lisa Ritchie), that your Open Records Requests are
unrelated to the Curling litigation and are being independently submitted by you
personally, to the contrary, are obvious attempts by you to circumvent the stay of
discovery order issued by Judge Totenberg. My opinion is based upon your involvement
in the Curling case, which is well documented, showing that you, while not a party to the
litigation, have become a substantial advocate and supporter of the plaintiffs in the case.

An example of your advocacy is evidenced by the fact that plaintiff's counsel, Cary
lchter, apparently copies you on all correspondence directed from his office to opposing
counsel. An example of such is attached to this email - the letter dated June 30, 2018,
from Mr. lchter to Governor Barnes and John Salter, advising them of certain records to
be requested by attorney lchter as soon as discovery opens, an obvious reference to the
fact that the District Court has stayed discovery in the Curlinq case. See the stay order
also attached.

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Ms. Marilyn Marks
July 10,2018
Page 2

You will also note that the letter from attorney lchter references his intent to contact
election officials in Habersham and Hall Counties. Attorney lchter continues in his
correspondence by listing those records desired to be produced to him to include ltem 4
"machine tapes from all Hall County precincts from the May 22,2018 election". Attorney
lchter also references at ltem 5 in his list "all voter access cards and supervisor cards
used in the Candler precinct during the May 22,2018 election", and at ltem 6 of his list
he requests "all supervisor access cards used in all polling places on election day (May
22,2018) in Hall County."

As evidenced by Mr. lchter's letter, it is no coincidence that much of the information

listed by Mr. lchter is the same as being requested by you in your Open Records
Requests, especially since Mr. lchter's letter shows that it was copied to you and other
advocates of the plaintiffs, and that the requested information is being sought for use in
the Curling litigation. Under such circumstances, Hall County will not willingly violate the
District Court's discovery stay order by responding to a discovery request poorly designed
aS an Open Records Request, without further direction from the Court.

Furthermore, immediately following the primary election conducted on May 22,

2018, all election records were required to be maintained under seal and delivered to the
Clerk of Superior Court pursuant to O.C.G.A. Section 2-2-500. As such, these records
are exempt from disclosure under the Open Records Act. Thus, without seeking
permission of the Superior Court to unseal such records, the County has no authority to
copy and/or release such copies pursuant to an open records request.

ln addition, you should also note that "requests by civil litigants for records that are
sought as part of or for use in any ongoing civil or administrative litigation against an
agency shall be made in writing and copied to counsel of record for that agency
contemporaneously with their submission to the agency. See Georgia Code Section 50-
1B-71 (West). This apparently was not done in the case of your two Open Records
Requests.

Finally, your Open Records Request of June 28,2018 has been responded to by
Ms. Lisa Ritchie, Hall County Commission Clerk, in which Ms. Ritchie advised that she
could not identify those records and documents requested by you, i.e. "ballot images" and
"audit logs" and that the Open Records Act does not require an agency to prepare or
create reports, summaries or non-existent compilations. See O.C.G.A. Sec. 50-18-71(g).
However, to the extent such records may exist under some other name or description,
they would also be encompassed within the prohibitions of the stay order and would also
be considered "sealed" records within the custody of the Hall County Superior Court.
Ms. Marilyn Marks
July 10,2018
Page 3

Therefore, for all of the above reasons, as County Attorney, I am recommending that your
Open Records Requests of both June 28,2O1B a June 30,2018 be denied

ncerely,

William H. Blalock, Jr

WHBjr/lrg
Attachment
78341 0-1
ICHTER DAVIS LLC Cary Ichter, Partner
cichter@ichterdavis,com
4o4,869,5243 die,ct
O4.769.1353 cell

June 30r 201.8

YIA: E-MAII
Roy E. Barnes, fsq. (RoV@barneslawgroup.com)
John F. Salter, Esq. (fohn @b arneslaw Srolrpcom)
Barnes Law GrouprLLC
31. Atlanta Street
Madetta, GA 30060

Re: Carling; et al. v. Kemp, et al., No. 17 -CV-O2989-AT (N.D. Ga.)

Dear Governor Barnes andMr. Salter:

I am writingto alertyouthatwe wil1be requesting the following electronic election

records as soon as discovery opens. The records, documents, ESI, datarandmatedals listed
below should be preserved for discovery purposes. We understand that therc is shared
custodianship of some of the records and equipment and arc therefore also copying
election officials of Habersham and HalI Counlies to ensure that records are diligently
preserved. We are calltngupon you as counsel for the State Defendants to give close and
scrupulous attention to the ptesewation of these records.

Please inform the appropriate election officials who are custodians of the referenced
state equipment and records that these records must be preserved without alteration:

1. Hall County DRE electronic records (DRE internalmemory and memory cards) for
all DREs used in the May 22, 2Ot8 primary election in precinct 10 (Candler).

2. Hall County DRE electronic records (DRE internal memory andmemory cards) for
all DREs used in the May 22, 2078 primary election for which machine results
tapes and/ or DRE machine memory cards did notreport results on all races on the
ballot.

S. Memory cards of ExpressPoll units used in the Hall County Candler precinct
(precinct 10) in the May 22,201'8 ptimary election'

4. Machine results tapes from all HaLl County precincts from the May 22, 201,8
election.
ICHTER DAVIS LLC Cary lchter, Partner
cichter@ichterdavis.com
404.869.5243 direcl
04.769.1353 cell

S. All voter access cards and supervisor cards used in Candler ptecinct duringthe
May 22r201.8 election'

6. A11supervisor access cards used in allpolling places on election day (May 22,
201,8) in Hall CounlY.

7. Habersham County DRE electronic records (DRE internal memory and merlLory
cards) for all DRE's used in the May 22, 2078 primary election.

8. Habercham County ExpressPoll unit memory cards used in all precincts and
polling place locations during the May 22, 20 8 primaty election.
-1.

g. Alt correspondence and communications related to the conduet and subsequent

investigat ion andreview of the May 22, 2Ol8 primary election. (Hall County and
Habersham County and SOS Kemp office.)

Our interest in these records derives from serious discrepancies in both of these
counties, recently brought to our attention. The details of signrficant incorrect ballot
issuance and disenfranchisement of voters in Habersham County are well known
through the currently pending election contest in Fulton County Superior Court. We have
recently Iearned that in Hall County at least one machine failed to report the results of
several races j and reported one candidate as both a Republic an and a Democrat.

The result s tape also appears to reflect a loss of ballots duringthe counting process. A
copy of one such tape is attached hereto for your convenient reference. We ate
concerned about the systemic problems that exist as a result of the voting system design
flaws and the compromise of the system components and data during the KSU data
breaches. Forensic discovery efforts will be required when discovery opens and it is
therefore tmperative that electronic records be dtligently maintained without further
alteration.
ICHTER DAVIS LLC Cary lchter, Partner
cichter@ichterdavis.com
404.869.5243 direct
04.769.1353 cell

Thank you for your assistance in securing these records, Please let me know whether
you have questions or wish to discuss.

cc: Bruce P. Brown, Esq.

Robert A. McGuirer III, Es4
William Brent Ney, Esq.
Marilyn R. Marks
David D. Cross, Esq.
Halsey G.KnapprJr. , Esq.
Daniel White, Esq.
Adam M. Sparks, Esq.
Jon Carlin, Esq.
laneP. Bentrott, Esq.
A. Miriyala,Esq.
CathertneL. ChappIe, Esq. JaneP. Bentrott
Ms. Lori Wurtz (Director of HalI Counfy Elections) lWr+rtz@&$If$emnty.org
Laurel Elli s on (Elec tions Dire ctor Hab er sham County)
 case L:I7-cv-O2989-AT Document 56 Filed 09/05/1-7 Page L of 2

IN THE UNITED STATES DISTRICT COURT

FORTHE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

DONNA CURLING, et aI.,

Plaintiffs,

v CIVILACTION NO.
L:LT-C'/-2g8q-AT
BRIAN KEMP, et aI.,

Defendants.

ORDER

The Court addressed the State Defendants' Motion to Stay All Discovery

[Doc. 55] during the course of its conference with counsel on September t, 2oL7.

As the Court recognized at this conference, the State Defendants (and other

defendants asserting immunity defenses) are entitled to the stay of discovery

related obligations requested by the State's Motion. Houe u. Cifu of Enterprise,

86r F.3d 1goo, LSoz (rrth Cir. zotT). Therefore, the Court GRANTS the'State

Defend.ants' Motion to Stay [Doc. SS]. However, as the Court stated during the

conference, this is a case of public import, and the Court takes seriously the need

to ensure orderly and prompt litigation and resolution of the case. Undue delays

in cooperation may cause adverse case management problems and potential costs

down the line. Therefore, the Court encourages the parties to address litigation

and scheduling issues on an expedited and cooperative basis, though the

,182t0(
Aou
 case L:17-cv-02989-AT Document 56 Filed 09/05/17 Page 2 of 2

Defendants are not legally required to move forward on discovery related

matters, including scheduling matters, prior to the Court's ruling on Defendants'

motion(s) to dismiss.

IT IS SO ORDERBD this 5th day of September, 2oL7 '

Amy
United States District Judge