acroyear | Don't win a big contract? SUE!

Grokked from /. Emphasis mine.

Voting device pact at issue - The Boston Globe:

Diebold Election Systems Inc. , one of the country's largest manufacturers of voting machines, is scheduled to argue in court today that the Office of the Secretary of State wrongly picked another company to supply thousands of voting machines for the disabled.

Diebold says it will ask a judge to overturn the selection of AutoMARK , a Diebold business competitor, because the office of Secretary of State William F. Galvin failed to choose the best machine.

The contract is valued at about $9 million.

William M. Weisberg , a lawyer representing Diebold, said in an interview yesterday that the company wants a review of the internal records showing how Galvin's office came to select AutoMARK earlier this year.

"We compete against AutoMARK around the country all the time," Weisberg said. "Based on the criteria set out by the Commonwealth, we had a fair degree of confidence we'd come out on top, and nothing we heard during the process dissuaded us of that confidence."

Weisberg said Diehold was so stunned it did not get the contract that it now believes "it's worth the time and money" of going to court to challenge the contract's award, even though the company at this stage has no hard evidence of unfair treatment.

Galvin yesterday called the Diebold suit "frivolous" and unlikely to succeed. "My office made a very reasonable selection after a long, open process of evaluating the voting machines," Galvin said.

"We are entirely confident we will prevail," he said.

In court filings, Diebold has indicated it will ask a judge today to immediately halt further use or distribution of the AutoMARK machines to municipalities throughout the state. If a judge issues that order, Diehold will then present arguments over the coming weeks on why the process was flawed, Weisberg said.

"We want a judge to either order the contract awarded to Diebold, based on his review of the proposals, but if he does not want to go that far, to at least order a reopening of the competition," he said.

This ain't the Onion. Diebold really is being THAT stupid.

Besides, if they had just filed a FOI act request, they could have gotten the same information with far less money and attention...

...oh yeah, Diebold and their Republican overlords want to do away with the FOIA, don't they?

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*sigh* it's sad that this doesn't even come close to surprising me.

Well, it's not like they're suing because they lost an election. That would just be silly and...never mind.

If chutzpah could win wars, these guys would have had Iraq and Afghanistan sewn up YEARS ago.

I'm almost surprised they haven't demanded that the judges be polled using Diebold machines.

Except here in Maryland, where it would be Diebold and their Democratic overlords doing away with the FOIA.

naturally enough. whomever's in charge doesn't want anybody to know WHY they're in charge.

but then again, MD is, last I checked, on the path to getting rid of the things anyways.

granted, that's an old article and I don't know what came of it when it went to the senate, though I know Ehrlich would have probably vetoed it as "unnecessary".

Um...discovery works both ways. Why would Diebold want to get involved in a lawsuit that could involve a fairly wide-ranging expedition into its internal records?

So in other words, this fishing expedition could mean they lose a couple of fish in the process...

Hm... This could get interesting.

However, I would think that discovery is usually only on or around those things that are being prosecuted? How much leeway would a defense lawyer have to argue that he has to dig back at the prosecuting one?

Sorry, my legal experience comes from Law and Order, not one of the best sources around. ;)

The relevant phrase is "reasonably calculated to lead to the discovery of admissible evidence."

Basically, if Diebold is arguing that their proposal should have won, anything relevant to their proposal is fair game for discovery. They can try to block it on relevance grounds, but that's hard to maintain under the best of circumstances, and especially when their own lawsuit is such a fishing expedition.

As a lawyer, I file that one under "YOU! OUT OF MY PROFESSION!"

Have you seen anything to indicate what the actual claim is? Sounds like they're suing the state and not AutoMARK itself, which is weird. If they'd sued AutoMARK, they *might* raise some claim of unfair trade practices or tortious interference if they think there was some fishy business, but against Massachusetts for making the "wrong choice"? I can't imagine how that will fly. I can't even imagine what allegations they would make.

it's called using the court for "second chances", just like people sue the government for alleged rights violations after they can't succeed in getting congress to pass this or that law (usually one that limits the government from taking away rights).

they figure they'll have an easier chance convincing one judge that theirs is the superior product given that they couldn't succeed in convincing a recommendation committee and state government. draw the right judge, they think, and they stand chance.

draw the wrong judge, and they could get off easy or hard. easy is the case is dismissed without comment. less easy is with a comment against friv lawsuits.

hard is as mandrakan posted - THEY could find their great inner secrets, including, perhaps, the source code they insist on not revealing to the public in spite of laws in at least 8 states that require it, as well as their tight relations with the current administration and past congress, and perhaps certain key people in the controversial states like Ohio and Florida.

so they REALLY screwed up here.

just filing an FOIA request would have gotten what they needed silently, only not within enough time to change the course of things before the '07 local elections, and probably not the primary next spring.

Well, it's obvious that "second chances" is their motive, but a judge's authority and discretion isn't absolute. The lawsuit complaint document still has to allege grounds for bringing the suit--that's where I'm stumped.

It's a commercial litigation case, which if they were suing AutoMARK, they might be able to hold onto, but for the life of me I can't think what allegation they might make against the State.

They can't even get to the part of "convincing the judge theirs is the superior product" until it is determined that their Complaint is "sufficient to state a claim". Judges are very reluctant to second-guess the decision of any party to a lawsuit, even the government, without strong legal grounds that says they have a right to do so. I just wish I could find out what the claim actually IS.

(Note to self: find that case tomorrow at work!)

yeah, i hope it's not something so insipidly stupid as "well, we're the #1 selling product out there so we MUST be the best".

judges are (ron moore, notwithstanding) generally quite immune to propaganda and advertising tactics so transparent as that.

it may also be a means of getting AutoMARK info through subpoena without looking like they're directly attacking it (and be thus watched by FTC for monopolistic reasons).

or, really, they may just be that downright stupid.

Dunno. To even get into discovery they would have to survive a bombardment of Motions to Dismiss for Failure to State a Claim on Which Relief Can Be Granted (in other words, whine all you want, suckers, the law sez there's nuthin' you can dowabatit!)

That's why I'm so curious about their complaint. Sounds like this first step is getting an injunction, but they still have to have a Complaint filed by then which explains the general grounds for their suit.

Don't win a big contract? SUE!

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