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Lawsuit over use of Confide app moves forward, with limitations

Gov. Eric Greitens makes a statement to reporters after his invasion of privacy case was dropped in this on May 14, 2018 file photo.
File photo | Carolina Hidalgo I St. Louis Public Radio
Gov. Eric Greitens makes a statement to reporters after his invasion of privacy case was dropped in this on May 14, 2018 file photo.

Attorneys seeking to prove former Gov. Eric Greitens and his staff violated Missouri’s Sunshine Law by using the message-deleting Confide app have an extra hurdle to clear.

Circuit Judge Jon Beetem has issued a protective order, for now, shielding Greitens’ former staffers, including any who still work for the state, from being interviewed under oath by plaintiff’s attorney Mark Pedroli.

Instead, Pedroli will have to subpoena Confide itself if he wants to determine if copies of text messages still exist. He contends that the Greitens administration used Confide to conduct state business, and said he’s not sure if a subpoena will work.

“If the answers come back ‘no,’ the only way for me to prove that case is to be able to take witness testimony and to ask them about that,” Pedroli said. “And so, your honor, I hope you can keep your mind open for that, if that day comes.”

Text messages sent via Confide self-delete after being opened and read, and cannot be saved by screenshot. The company promises its users that they can “communicate digitally with the same level of privacy and security as the spoken word.”

Beetem did leave open the possibility of examinations of state-owned phones that contain the app, but not of personal phones belonging to Greitens’ staffers.

“This is not a fishing expedition where you get seven phones from the governor’s office to see what you can get,” Beetem told Pedroli. “It’ll have to be narrowly tailored.”

Pedroli said he would be happy to have a third party conduct forensic exams if necessary.

At least 20 employees of the former governor are known to have downloaded or used Confide.

Attorneys representing the governor’s office — now under Mike Parson — say the premise of the lawsuit is wrong because Sunshine law violations involve refusal to provide existing documents, as opposed to destroying them.

“If documents don’t exist in the possession of a government official when they’re requested, and you think they were improperly destroyed, that is a question that’s adjudicated separately,” said attorney Barbara Smith.

Greitens resigned from office early this month.

Follow Marshall on Twitter:@MarshallGReport

Marshal was a political reporter for St. Louis Public Radio until 2018.