Judge: Governor doesn’t have to testify in IBM case

Marion Superior Judge David Dreyer has ruled that Indiana Gov. Mitch Daniels doesn’t have to testify about his involvement in the cancelled multi-million dollar IBM contract to modernize the state’s welfare system.

In a three-page order Tuesday, the trial judge determined that current evidence in the case doesn’t allow him to determine at this time whether the governor falls under any purported exception in state statute calling for his testimony. As a result, ordering his deposition is precluded until at least the time the parties determine whether that need exists, the judge determined under Indiana Code 34-29-2-1(6).

“On one hand, the statute above clearly precludes a deposition of a sitting governor,” Judge Dreyer wrote. “On the other hand, an exception might be established since it is reasonable to expect any chief executive to have unique personal first-hand knowledge or experience in the management of a project of such magnitude as this IBM contract.”

That law says that discovery is possible if the governor’s testimony isn’t available from another source or if he had first-hand knowledge that can’t be reasonably obtained elsewhere in some less burdensome way, and that it would not significantly interfere with those office’s duties.

The state argued that Daniels delegates day-to-day management of the governor’s office and doesn’t have any “unique substantial knowledge” of that contract, while IBM argues that Daniels took this on as a pet project and his depositions are needed.

This is the latest ruling in the consolidated suit and countersuit of State v. International Business Machines Corp. and IBM v. State, No. 49D10-1005-PL-021451, centering on the 10-year, $1.37 billion contract for the welfare system. The state sued last year trying to recoup hundreds of millions of dollars it paid the company before cancelling the contract in 2009, and the computer giant countersued on breach of contract allegations and argued the state still owes about $100 million.

Judge Dreyer previously ruled that the state must turn over thousands of pages of documents, including emails from the governor and other state officials, relating to that cancelled contract. The state decided not to immediately appeal that ruling about “deliberative” documents and privilege, and the judge held a hearing April 18 to delve into whether the governor and his chief of staff, Earl A. Goode, must appear for depositions.

In granting the state’s motion for protective order against Daniels’ testimony, this ruling means the governor is not required to testify at this time but that Goode isn’t privileged from subpoenas to testify.

Indianapolis attorney Andrew Hull issued a statement on behalf of his client, IBM, in response to the ruling.

“We are pleased that we will be able to question Earl Goode, the governor's top aide, who – presumably acting on behalf of the governor – was deeply involved in the project. But it is unfortunate that we will not be able to question Governor Daniels under oath at this time since he was personally involved from the earliest days of this project and was hands-on concerning project management – even praising IBM's efforts. Governor Daniels repeatedly has pledged transparency in government. The question remains concerning this project: ‘What is he trying to hide?’ We hope to eventually ask that question of Governor Daniels directly.”