Judge in Confide lawsuit to order plaintiff for proof of records existing before proceeding

The plaintiff suing former Missouri Gov. Eric Greitens and the office of the governor for violating the Sunshine Law will need to prove certain documents exist before the judge can enforce discovery of evidence.

In December, a member of the Sunshine Project filed a lawsuit against Greitens’ office, alleging the use of the Confide app, a messaging app that destroys the texts once read, destroyed public records.

Judge Jon Beetem heard arguments on Tuesday about whether he should compel the office of the governor to hand over certain documents in the case for discovery.

Mark Pedroli, the attorney representing Ben Sansone, with the Sunshine Project and the plaintiff, said there are two issues at hand in the lawsuit: the lack of retention of public records and the destruction of public records.

Pedroli argued that in recent cases against officials using Confide, the company said they only have records of when users downloaded the app, but not records of the messages exchanged through the app.

Attorneys representing the office of the governor said Pedroli is requesting information outside the scope of the Sunshine Law, which doesn’t include retention of documents, and that they have sent over names of the people in the governor’s office who used Confide.

Beetem said that Pedroli must prove that records exist of Greitens and other public officials using Confide for public business and during Greitens’ time as governor.

Beetem said Pedroli should subpoena Confide and find out if the company stored records.

Beetem also said he will issue a protection order for the scope of discovery until the plaintiff proves the records exist.

Beetum said he will issue the order once he works out the details with both sides.