Cole County judge issues protective order in Confide case against former Missouri governor

The Cole County judge overseeing a civil case that involves the use of an messaging app used by the former governor of Missouri issued a protective order Friday in favor of the defendant.

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

The judge ordered that there can’t be discovery that pre-dates the date of the inauguration of Greitens, Jan. 9, 2017. The following is included in the order:

Discovery should proceed sequentially to determine whether any messages sent or received over Confide can actually be recovered, either through Confide Inc., third-party servers or on the cellphones that used Confide. The plaintiff, represented by Mark Pedroli, must serve Confide with a subpoena for the case including the telephone numbers that used the app, no later than 30 days from June 29, when this order was issued. The defendant, represented by Anne Smith, must produce and pay for a forensic expert to conduct a forensic examination, using example cell phones, to find out whether any messages sent or received over Confide can actually be recovered on the phones after the messages were sent or received. Smith is also ordered to produce their expert’s report no later than 30 days from June 29. Once Pedroli receives the expert’s report from Smith, he has 60 days to depose the expert. After Pedroli receives the expert’s report, he may hire his own expert to conduct their own review, at Pedroli’s discretion and cost. If Pedroli hires his own expert, the report must be given to Smith within 30 days of his deposition of Smith’s expert. Smith then has 30 days to depose Pedroli’s expert. All other pending discovery shall be stayed until the judge can determine whether the messages sent or received through Confide can be recovered, which might have a bearing on what records are at issue.

The judge said in the order that at this point in the process, he needs to be able to ascertain exactly what type of evidence is likely to exist, as well as the exact nature for the use of Confide.

Once both sides have subpoenad Confide Inc. and received, reviewed and deposed the forensic experts’ reports, the parties must either request a proposed schedule hearing to layout any further discovery or propose any other briefing they believe to be appropriate.