Received 1/18/2022 10:14:30 AM Supreme Court Middle District

Filed 1/18/2022 10:14:00 AM Supreme Court Middle District

3 MAP 2022

IN THE SUPREME COURT OF PENNSYLVANIA

COUNTY OF FULTON, FULTON : No.: 3 MAP 2022

COUNTY BOARD OF :
ELECTIONS, STUART L. ULSH, : PETITIONERS/APPELLEES’
in his official capacity as County : ANSWER TO
Commissioner of Fulton County : RESPONDENT/APPELLANT’S
and in his capacity as a resident, : EMERGENCY APPLICATION
taxpayer and elector in Fulton :
County, and RANDY H. BUNCH, : Filed on Behalf of
in his official capacity as County : Petitioners/Appellees:
Commissioner of Fulton County :
and in his capacity as a resident, : County of Fulton, Fulton
taxpayer and elector of Fulton : County Board of Elections,
County, : Stuart L. Ulsh, and Randy H.
: Bunch
Petitioners/Appellees, :
: Counsel of record:
Thomas W. King, III, Esq.
v. :
PA. I.D. No. 21580
: [email protected]
SECRETARY OF THE : DILLON, MCCANDLESS, KING,
COMMONWEALTH, : COULTER & GRAHAM L.L.P.
: 128 West Cunningham Street
Respondent/Appellant. : Butler, PA 16001
:
James M. Stein, Esq.
: PA. I.D. No. 84026
: [email protected]
: DICK, STEIN, SCHEMEL,
: WINE & FREY, LLP.
: 119 North Second Street
McConnellsburg, PA 17233
:
: Douglas J. Steinhardt, Esq.
: PA. I.D. No. 73891
: [email protected]
: Steinhardt, Cappelli,
: Tipton & Taylor, LLC
235 Broubalow Way
:
Phillipsburg, NJ 08865
:
 IN THE SUPREME COURT OF PENNSYLVANIA

COUNTY OF FULTON, FULTON :

COUNTY BOARD OF ELECTIONS, :
STUART L. ULSH, in his official : No.: 3 MAP 2022
capacity as County Commissioner of :
Fulton County and in his capacity as a :
resident, taxpayer and elector in Fulton :
County, and RANDY H. BUNCH, in his :
official capacity as County :
Commissioner of Fulton County and in :
his capacity as a resident, taxpayer and :
elector of Fulton County, :
:
Petitioners/Appellees, :
:
v. :
:
SECRETARY OF THE :
COMMONWEALTH, :
:
Respondent/Appellant. :

RELEVANT PROCEDURAL HISTORY

This matter arises from a request to Fulton County from the

Pennsylvania Senate Intergovernmental Operations Committee to inspect

the County’s voting machines. A true and correct copy of Senator Dush’s

letter dated December 10, 2021, is attached hereto as, “Exhibit A.”

On December 17, 2021, Appellant filed her Emergency Application for

an Order Prohibiting Spoliation of Key Evidence Scheduled to Occur on

December 22, 2021, seeking to postpone the Committee’s inspection.

1
Following oral argument on Appellant’s Emergency Application the Court

issued the following Order:

NOW, December 21, 2021, following oral argument on the

Secretary of the Commonwealth's Emergency Application for an
Order Prohibiting Spoliation of Key Evidence, and upon
agreement of the parties, the inspection of Fulton County's voting
machines by Envoy Sage, LLC, presently scheduled for
December 22, 2021, shall be postponed to January 10, 2022, by
which time the parties will have negotiated protocols for said
inspection.

A true and correct copy of the Order of the Commonwealth Court dated

December 21, 2021, 277 M.D. 2021, is attached hereto as “Exhibit B.”

(emphasis added).

On January 3, 2022, Dominion Voting Systems, Inc. filed an

Application for Intervention, claiming an interest in the present litigation

through the Contract between Dominion Voting Systems, Inc. and Appellees.

Section 13.2 of such Contract provides,

[s]ubject to the requirements of the Customer’s public record

laws (“PRL”), neither Party shall disclose the other Party’s
Confidential Information to any person outside their respective
organizations unless disclosure is made in response to, or
because of, an obligation to any federal, state, or local
government agency or court with appropriate jurisdiction, or to
any person properly seeking discovery before any such agency
or court.

A true and correct copy of the Contract between Dominion Voting Systems,

Inc. and Appellees is attached hereto as, “Exhibit C.”

2
 Further, Section 13.3 of the County’s Agreement with Dominion Voting

Systems provides that,

[i]f Dominion fails to obtain such court order enjoining such

disclosure, the Customer will release the requested information
on the date specified. Such release shall be deemed to have
been made with Dominion’s consent and shall not be deemed to
be a violation of law or this Agreement.

See Ex. C, at § 13.3 (emphasis added).

Following a January 7, 2021, Hearing on Dominion’s Application to

Intervene, a hearing at which neither Dominion nor Appellant presented any

witnesses, the Court denied Dominion’s Application to Intervene. See

Proposed Intervenor Dominion Voting Systems’ Witness and Exhibit Lists;

See also Respondent’s Answer to the Emergency Application of Dominion

Voting Systems, Inc. for Leave to Intervene For the Purpose of Seeking a

Protective Order. In the Commonwealth Court’s January 10, 2022

Memorandum Opinion and Order, the Court stated,

[a]lthough Dominion may have an enforceable contractual

interest in general, it has not shown that determination of this
matter in particular – which concerns only statutory authority for
decertification – will affect that legally enforceable interest.

A true and correct copy of the Commonwealth Court’s Memorandum Opinion

and Order dated January 10, 2022, is attached hereto as, “Exhibit D.”

On January 7, 2022, immediately following the hearing on Dominion’s

Application to Intervene, the Court held a status conference regarding the

3
inspection of Appellees’ voting machines. As a result of this status

conference, the Court issued its January 7, 2022, Order stating,

NOW, January 7, 2022, upon consideration of letters submitted

by Respondent and Petitioners on January 6, 2022, and following
a status conference, upon agreement of the parties, this Court's
order of December 21, 2021 is hereby AMENDED to postpone
the inspection of Fulton County's voting machines by Envoy
Sage, LLC, to Wednesday, January 12, 2022. The parties are
ORDERED to negotiate, in good faith, protocols that will apply to
said inspection. Further, the parties shall file a joint status report
advising of the status of their negotiations no later than 1:00 p.m.
on Tuesday, January 11, 2022.

A true and correct copy of the Court’s Order dated January 7, 2022, is

attached hereto as, “Exhibit E.” (emphasis added).

On January 10, 2022, Appellant filed an Emergency Application to

Reschedule the January 12, 2022, Inspection due to the Unavailability of

Respondent’s Expert. The Commonwealth Court subsequently issued an

Order dated January 11, 2022, stating,

NOW, January 11, 2022, upon consideration of the Emergency

Application of Respondent to Reschedule the January 12, 2022,
Inspection due to the Unavailability of Respondent's Expert, and
Petitioners' Answer thereto, this Court's order of January 7, 2022,
is hereby AMENDED to postpone the inspection of Fulton
County's voting machines by Envoy Sage, LLC, to no earlier than
1:00 p.m. on Friday, January 14, 2022.

A true and correct copy of the Court’s Order dated January 11, 2022, is

attached hereto as, “Exhibit F.”

4
 On January 13, 2022, at 4:02 P.M., Appellant filed her Renewed

Emergency Application for an Order to Enjoin the Third-Party Inspection

Currently Scheduled for January 14, 2022, From Proceeding. However,

Appellant’s “Renewed” Emergency Application is incorrectly titled.

Appellant’s original Emergency Application was entitled, “Respondent’s

Emergency Application for an Order Prohibiting Spoliation of Key Evidence

Scheduled to Occur on December 22, 2021,” which Emergency Application

sought a protective order, not a preliminary injunction.

On January 14, 2022, the Commonwealth Court issued its

Memorandum Opinion and Order stating,

the Court will not generally enjoin the inspection, much less enter
what would essentially be an ex parte injunction purporting to
bind Envoy Sage, among others. Because the Secretary has
failed to carry her burden to show that the inspection or its effects
are evidence deserving a preservation order . . . Respondent’s
Renewed Emergency Application for an Order to Enjoin the
Third-Party Inspection Currently Scheduled for January 14,
2022, from Proceeding is DISMISSED as improvidently filed.

A true and correct copy of the Commonwealth Court’s Memorandum Opinion

and Order dated January 14, 2022, 277 M.D. 2021, is attached hereto as

“Exhibit G.”

SUMMARY OF THE ARGUMENT

Appellant’s appeal of the Commonwealth Court’s Memorandum

Opinion and Order dated January 14, 2022, is improper as the Court’s Order
5
is not a final Order of the Commonwealth Court pursuant to 42 Pa. C.S. §

723. Rather the Court’s Order is an interlocutory Order, unrelated to any

issue currently before the Court, as raised by Appellees’ Amended Petition

for Review.

Additionally, the Court’s January 14, 2022, Order is not an appealable

Order pursuant to Pa. R.A.P. 311(a)(4) as the Court’s opinion did not grant

or deny an injunction. While improper, as the Committee’s inspection does

not concern evidence related to this matter, Appellant’s Emergency

Applications were discovery motions seeking a protective Order. It was not

until the Appellant’s January 13, 2022 “Renewed” Emergency Application for

an Order to Enjoin the Third-Party Inspection Currently Scheduled for

January 14, 2022, From Proceeding, that the title of Appellant’s pleading

requested injunctive relief. Indeed, as noted by the Commonwealth Court,

“there is no underlying pleading to support a preliminary injunction request.”

See Ex. G, Pg. 2.

Neither the Committee nor Envoy Sage were sued so as to make them

a party to any proceeding for a preliminary injunction. As the underlying

matter was never an injunction proceeding, no hearing was ever requested

or scheduled relative to a preliminary injunction (and hence there is no such

record for this Court to review). When given the opportunity to present

6
witnesses at the hearing on Dominion’s Application to Intervene, neither

Appellant nor Dominion took the opportunity to create a record. See

Proposed Intervenor Dominion Voting Systems’ Witness and Exhibit Lists;

See also Respondent’s Answer to the Emergency Application of Dominion

Voting Systems, Inc. for Leave to Intervene For the Purpose of Seeking a

Protective Order. This appeal cannot serve as an attempt to invoke this

Court’s original jurisdiction relative to an injunction and no King’ Bench

petition has been filed by the Secretary in this matter. See Appellant’s Notice

of Appeal. (“There is no verbatim record of the proceedings relating to

Respondent’s Emergency Applications or Petitioners’ responses thereto.”)

Lastly, the Commonwealth Court’s Order dated January 14, 2022, is

not a collateral Order pursuant to Pa. R.A.P. 313 as Appellant’s Renewed

Emergency Application seeks an Order to prevent spoliation of evidence

when in fact there is no evidence being sought or produced in this matter for

the underlying case.1 As noted by the lower Court, “[a] party that engages in

spoliation faces numerous sanctions at the court’s discretion, ranging from

an inference that the evidence would have been adverse to the spoliator, to

1
It should also be noted that Appellant has already had an opportunity to inspect Appellees’ voting machines in the
course of the present litigation. On October 12, 2021, Appellant inspected Appellees’ voting machines, utilizing Mr.
Ryan Macias, founder of RSM Election Solutions, LLC to conduct such an examination. Neither Ryan Macias nor
RSM Election Solutions, LLC possess EAC accreditation to inspect voting machines, but the Secretary used them
nonetheless.

7
prohibiting other evidence offered by the spoliator, to striking portions of

pleadings or complete dismissal.” See Ex. G, at 3. See also Shearer v. Hafer,

177 A.3d 850, 860 (Pa. 2018) (quashing appeal of discovery order where

Appellant’s claims will not be irreparably lost as other remedies are

available).

PETITIONERS/APPELLEES’ ANSWER TO
RESPONDENT/APPELLANT’S EMERGENCY APPLICATION

Petitioners/Appellees, by and through their undersigned counsel,

hereby file the within Answer to Respondent/Appellant’s Emergency

Application to Stay Third-Party Inspection of Electronic Voting System

Scheduled to Begin at 1:00 P.M. on January 14, 2022, stating in support

thereof as follows:

1. Denied. This case arose through Petition for Review seeking a

declaration that, “Respondent’s decertification of Petitioners’ Democracy

Suite 5.5A Voting System, by letter dated July 20, 2021, was arbitrary,

capricious, and legally improper, and an error of law, as Respondent failed

to comply with the mandates of 25 P.S. § 3031.5(b), and that such

decertification dated July 20, 2021, should be stricken and rendered null and

void.” See Petitioners’ Amended Petition for Review, Pg. 14.

2. Denied as stated. Appellant’s decision to decertify Fulton

County’s voting machines was improper as Section 3031.5(b) of

8
Pennsylvania’s Election Code requires that, “if Respondent reexamines a

previously certified system, Respondent shall examine the system and make

and file a report with the Pennsylvania Department of State, attested by her

signature and the seal of her office, stating whether the system so

reexamined can be safely used in elections.” Id. at 13, citing 25 P.S. §

3031.5(b). No such examination, as required by Section 3031.5(b) of

Pennsylvania’s Election Code, was conducted by Appellant prior to the July

20, 2021, decertification of Fulton County’s voting machines.

3. Admitted in part, denied in part. It is admitted that Appellant

issued Directive 1 of 2021. It is denied that Directive 1 of 2021 was a proper

exercise of the Appellant’s authority as Directive 1 of 2021 improperly usurps

and interferes with the undertaking of the duties and responsibilities of

County Boards of Elections, as set forth in 25 P.S. § 2642(g), et seq.; and

further, Directive 1 of 2021 decertifies electronic voting systems without the

conduct of an examination of the system, in violation of 25 P.S. § 3031.5(b).

Id. at 13, 20.

4. Denied as stated. Appellees challenge the Secretary’s

decertification of Fulton County’s voting systems as, “Respondent failed to

reexamine Petitioners’ voting system (election machines) prior to

decertification in violation of 25 P.S. § 3031.5(b).” Id. at 12.

9
 5. Denied as stated. Appellees’ claims are based in the failure of

the Secretary to conduct an examination of Fulton County’s voting machines

prior to their July 20, 2021, decertification, in violation of the requirements of

25 P.S. § 3031.5(b).

6. Denied. In response to a request from the Chairman of the

Pennsylvania Senate Intergovernmental Operations Committee, Cris Dush,

Appellees scheduled a special meeting of the Fulton County Board of

Elections advertised for December 22, 2021, to permit the Committee to

conduct an examination of the County’s voting machines. See Ex. A. By letter

dated December 16, 2021, Appellees informed the Department of State of

the time, date, and place of inspection and informed the Department that the

inspection would be open to the public as a public meeting of the Fulton

County Board of Elections. Thereafter, the inspection was postponed, “by

agreement,” until January 10, 2022, and once again until January 14, 2022,

thereby giving Appellant advanced notice of the Committee’s inspection. See

Ex. G, at Pg. 2.

7. Denied. It is denied that Appellant is entitled to the relief sought

in their December 17, 2021, Emergency Application for an Order Prohibiting

Spoliation of Key Evidence as, “[Appellant] has failed, however, to

demonstrate a critical element of each of the three [Capricorn] factors – that

10
the data or state of the System subject to inspection constitutes evidence in

this matter worthy of protection. The spoliation doctrine protects evidence,

not information in general. The Secretary has not persuaded the Court that

she, or Petitioners for that matter, will use any data obtained from the System

as evidence in this proceeding.” Id. at 4.

8. Denied as stated. The inspection of Fulton County’s voting

machines is being conducted by the Pennsylvania Senate Intergovernmental

Operations Committee, at the request of the Committee’s Chairman, Cris

Dush. Appellees are cooperating with the Committee’s request pursuant to

Article 9, Section 5 of the Pennsylvania Constitution which provides,

A municipality by act of its governing body may, or upon being

required by initiative and referendum in the area affected shall,
cooperate or agree in the exercise of any function, power or
responsibility with, or delegate or transfer any function, power or
responsibility to, one or more other governmental units including
other municipalities or district, the Federal government, any other
state or its governmental units, or any newly created
governmental unit.

Pa. Const. art. IX, § 5.

9. Denied. Paragraph 9 speaks to a written Order of Court dated

December 21, 2021, the terms of which speak for itself.

10. Denied as stated. Appellees have made clear from the beginning

that the planned December 22, 2021, inspection of Fulton County’s voting

machines was being conducted for the purpose of, “comply[ing] with the
11
request ([which was forwarded to Appellant December 15, 2021]) of the

Pennsylvania Senate Intergovernmental Operations Committee as

forwarded to us by its Chairman, Senator Chris [sic] Dush.” See Exhibit D to

Petitioners’ Answer to Respondent’s Emergency Application for an Order

Prohibiting Spoliation of Key Evidence.

11. It is admitted that the Appellant requested, and agreed to, the

Court’s postponement of the inspection scheduled for January 10, 2022. See

Ex. E.

12. It is admitted that the Court conducted a status conference dated

January 7, 2022, regarding an inspection protocol for the Committee’s

inspection of Fulton County’s voting machines. At all such times, the

Secretary simply demanded certain protocol and did not demand that the

Court enjoin the inspection.

13. Denied. Paragraph 13 speaks to a written Order of Court dated

January 7, 2022, the terms of which speak for itself. By further answer,

Appellees complied with the Court’s January 7, 2022, Order of Court by

negotiating with Appellant and Counsel for Dominion to establish a protocol.

To this end, Envoy Sage, LLC assisted in creating Appellees’ January 10,

2022, proposed protocol agreement, which agreement sets forth the

comprehensive inspection protocol, and a list of credentials of the

12
technicians, of Envoy Sage, LLC. See Attachments A-C of Exhibit A to Joint

Report on Status of Negotiations.

14. It is admitted that the Court, at Appellant’s request, postponed

the inspection until January 14, 2022.

15. It is admitted that Appellant file her Renewed Emergency

Application for an Order to Enjoin the Third-Party Inspection Currently

Scheduled for January 14, 2022, From Proceeding, at 4:02 P.M. on January

13, 2022. By further answer, Appellant’s request for injunctive relief in this

matter is improper as, “there is no underlying pleading to support a

preliminary injunction request.” See Ex. G at Pg. 5.

16. Denied. Paragraph 16 refers to Appellant’s “Renewed”

Emergency Application, the terms of which speak for itself. By further

answer, Appellees have provided a list of the credentials of the technicians

of Envoy Sage, LLC; Appellees have clearly identified the principal for Envoy

Sage, LLC as the Pennsylvania Senate Intergovernmental Operations

Committee; Envoy Sage, LLC is willing to be bound by any inspection

protocol agreement negotiated by the parties; and Envoy Sage, LLC has

crafted a comprehensive six (6) page inspection protocol to ensure that the

inspection of Fulton County’s voting machines will not compromise the

13
integrity of any data contained on the machines. See Appellees’ Response

to Respondent’s Renewed Emergency Application.

17. It is admitted that the Commonwealth Court entered an Order

dated January 14, 2022, denying Respondent’s “Renewed” Emergency

Application. By further answer, the Court’s Order dated January 14, 2022:

a. is not a final appealable Order of the Commonwealth Court

pursuant to 42 Pa. C.S. § 723 as the Order at issue is an
Interlocutory Order, unrelated to the issues of the underlying
case, as neither party will receive any of the information or data
retrieved in the Committee’s inspection;
b. is not appealable pursuant to Pa. R.A.P. 311(a)(4) as, “there is
no underlying pleading to support a preliminary injunction
request,” See Ex. G at Pg. 5; and
c. is not an appealable collateral Order pursuant to Pa. R.A.P. 313
as Appellant’s Renewed Emergency Application seeks an Order
to prevent spoliation of evidence when in fact there is no
evidence being sought or produced in this matter for the
underlying case.2 As noted by the lower Court, “[a] party that
engages in spoliation faces numerous sanctions at the court’s
discretion, ranging from an inference that the evidence would
have been adverse to the spoliator, to prohibiting other evidence
offered by the spoliator, to striking portions of pleadings or
complete dismissal.” Id. at 3. See also Shearer v. Hafer, 177 A.3d
850, 860 (Pa. 2018) (quashing appeal of discovery order where
Appellant’s claims will not be irreparably lost as other remedies
are available).

2
It is true that the County had hoped that the information produced by the Committee’s investigation would be
useful to it in the underlying case. However, upon inquiry, it was advised by the Committee that any information
obtained would be used only for investigation purposes by the Committee. After the County was made aware of this
development, Appellees so advised the Appellant and the Court.

14
 18. Denied as stated. Appellees’ arguments below concern the

failure of the Secretary to examine Fulton County’s voting machines prior to

decertification, as required by Section 3031.5(b) of Pennsylvania’s Election

Code. Such arguments do not necessitate the review of Fulton County’s

voting system as it presently exists, but rather concern the authority of the

Secretary to decertify the machines in the first place. See Petitioners’

Amended Petition for Review. By further answer, Envoy Sage, LLC has

assured Appellees of the continued integrity of any data contained on Fulton

County’s voting machines. Envoy Sage has crafted a six (6) page inspection

protocol that provides for a controlled zone to maintain strict chain of

custody of all voting machine components, provides for the specific devices

Envoy Sage will utilize to ensure the integrity of the data contained on the

machines, and video recording of the inspection within the controlled zone

to ensure compliance with the protocol. See Attachments A-C of Exhibit A

to Joint Report on Status of Negotiations.

19. Denied. Paragraph 19 refers to a written Order of Court dated

January 14, 2022, the terms of which speak for itself. To the extent that

Paragraph 19 seeks to characterize such Order, the same is denied.

20. Denied as stated. Appellees’ arguments below concern the

failure of the Secretary to examine Fulton County’s voting machines prior to

15
decertification, as required by Section 3031.5(b) of Pennsylvania’s Election

Code. Such arguments do not necessitate the review of Fulton County’s

voting system as it presently exists, but rather concern the authority of the

Secretary to decertify the machines in the first place. See Petitioners’

Amended Petition for Review. By further answer, Envoy Sage, LLC has

assured Appellees of the continued integrity of any data contained on Fulton

County’s voting machines. Envoy Sage has crafted a six (6) page inspection

protocol that provides for a controlled zone to maintain strict chain of custody

of all voting machine components, provides for the specific devices Envoy

Sage will utilize to ensure the integrity of the data contained on the machines,

and video recording of the inspection within the controlled zone to ensure

compliance with the protocol. See Attachments A-C of Exhibit A to Joint

Report on Status of Negotiations.

21. Denied as stated. Appellees are prejudiced by the repeated

rescheduling of the Committee’s inspection as Appellees are required to

secure space for the inspection, provide for the presence of County election

employees, and provide for the presence of the County Sheriff for security.

These are all expenses that the County has incurred on three (3) occasions

now. By further answer, Envoy Sage has ensured the continued integrity of

any data contained on the County’s voting machines through their creation

16
of a six (6) page inspection protocol that provides for a controlled zone to

maintain strict chain of custody of all voting machine components, provides

for the specific devices Envoy Sage will utilize to ensure the integrity of the

data contained on the machines, and video recording of the inspection within

the controlled zone to ensure compliance with the protocol. See Attachments

A-C of Exhibit A to Joint Report on Status of Negotiations.

WHEREFORE, Appellees respectfully request that this Honorable

Court deny Appellant’s Emergency Application, dismiss the Appellant’s

Appeal dated January 14, 2022, and relinquish jurisdiction to the Court below

so that the inspection of Fulton County’s voting machines may proceed.

17
Respectfully submitted,

DILLON, McCANDLESS, KING,

COULTER & GRAHAM, L.L.P.

By: /s/ Thomas W. King, III

Thomas W. King, III
PA. I.D. No. 21580
[email protected]

Dick, Stein, Schemel,

Wine & Frey, LLP
James M. Stein, Esq.
PA. I.D. No. 84026
[email protected]

Steinhardt, Cappelli,
Tipton & Taylor, LLC
Douglas J. Steinhardt, Esq.
PA. I.D. No. 73891
[email protected]

18
 WCLLSBORO OFFICC COMMITTEES
5 MAIN STREET
WELLSaORO, PA 16001
INTtnCOVEnNMENTAL OPERATIONS. CHAIR
570.724.5231 • FAXI 870723.6119
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MAIN OFFICK PHONK NUMNKN: 814.6491.7272
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HARRISBURG OFFICE
VCTEnANs ArrAIns A
SENATE Box 203025 I:MENI:ENCT P/ILPARCONEss
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PA 17120
717.7"740"4

EMAILI Cdush0pasen.goV
WEBI www.eenalorcrledushpa.com rnatr of •Jruiirtlluauia
FACEBOOK: taceboo k.cOn1/Se natorCri%DushPA
2STH DISTRICT
SENATOR CRIS DUSH

MEMORANDUM
To: Fulton County Commissioners and Board of Elections

From: Chairman Cris Dush

Date: December 10, 2021

Re: Intergovernmental Operations Chairman's Request to Examine Voting Machines

Fulton County Leaders,

The Pennsylvania Senate Intergovernmental Operations Committee is investigating the

Pennsylvania (PA) election system. Our purpose is to confirm our election systems' security and
integrity, ensure current law is adequate moving forward, as well as restoring PA Residents'
confidence in the results of our elections.

Voting machines are at the heart of modern elections in Pennsylvania. Therefore, this
aspect of our election system is acentral part of our investigation. As Chair of the Committee
and in furtherance of the investigation being conducted by the Committee, the following is
requested:

■ Permission to collect the digital data from the election computers and hardware
used by Fulton County, Pennsylvania in the November 2020 election.

We are willing to coordinate with your designated representativc(s) to have this work
performed in amanticr that limits disruptions to your operations, and which preserves the
equipment and data.

EXHIBIT A
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Fulton, Fulton County Board

of Elections, Stuart L. Ulsh, in his
official capacity as County
Commissioner of Fulton County and
in his capacity as aresident, taxpayer
and elector in Fulton County, and Randy
H. Bunch, in his official capacity as
County Commissioner of Fulton County
and in his capacity as aresident,
taxpayer and elector of Fulton County,
Petitioners

V.

Secretary of the Commonwealth,

Respondent No. 277 M.D. 2021

ORDER

NOW, December 21, 2021, following oral argument on the Secretary

of the Commonwealth's Emergency Application for an Order Prohibiting Spoliation

of Key Evidence, and upon agreement of the parties, the inspection of Fulton

County's voting machines by Envoy Sage, LLC, presently scheduled for December

22, 2021, shall be postponed to January 10, 2022, by which time the parties will have

negotiated protocols for said inspection.

MARY HANNAH LEAVITI4'President Judge Emerita

Order Exit
12/21/2021

EXHIBIT B
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
EXHIBIT C
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Fulton, Fulton County Board

of Elections, Stuart L. Ulsh, in his
official capacity as County
Commissioner of Fulton County and
in his capacity as aresident, taxpayer
and elector in Fulton County, and Randy:
H. Bunch, in his official capacity as
County Commissioner of Fulton County
and in his capacity as aresident,
taxpayer and elector of Fulton County,
Petitioners
V. No. 277 M.D. 2021

Secretary of the Commonwealth, Heard: January 7, 2022

Respondent

BEFORE: HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: January 10, 2022

Before the Court is the Emergency Application for Leave to Intervene

for the Limited Purpose of Seeking aProtective Order (Application to Intervene)

filed by Dominion Voting Systems, Inc. (Dominion). Petitioners have filed an

Answer in opposition to the Application to Intervene, and Respondents have filed

an Answer in support. For the following reasons, the Court denies the Application

to Intervene.

This matter arises from Petitioners' 4-count Amended Petition for

Review, seeking, inter alia, to reverse Respondent's decertification of Dominion's

Democracy Suite 5.5A voting system (System) for use in elections in the County of

EXHIBIT D
Fulton (County). After Respondent initially certified the System in 2019, the

County leased two such machines from Dominion and used them in the 2020

General Election. Thereafter, the County contracted with Wake Technology

Services Inc. (Wake TSI) to inspect the System in conjunction with the County's

investigation of the processes used in the election. On July 8, 2021, Respondent

issued Directive 1of 2021, which prohibits county boards of elections from allowing

third-party examination of state-certified voting systems, and provides for

decertification of any system so examined. On July 20, 2021, Respondent issued a

letter to the County decertifying the System under Section 1105-A of the

Pennsylvania Election Code' for the stated reason that the County had allowed a

third-party examination. Petitioners filed a Petition for Review to challenge

Respondent's decertification.

When Respondent learned that Petitioners planned to allow another

third party, Envoy Sage, LLC, to inspect the System on December 22, 2021, she

filed an emergency application to prohibit spoliation of evidence that would

allegedly occur during the inspection. Respondent asserted that the County might

use the work of Envoy Sage in its action to set aside the Respondent's decertification.

After astatus conference on December 21, 2021, this Court entered an

order to reflect the agreement of the parties to negotiate protocols for the inspection

and to postpone the inspection to January 12, 2022.

Dominion, which created the System and leases it to the County, now

seeks to intervene on the ground that Envoy Sage's scheduled inspection of the

System will violate the "Voting System and Managed Services Agreement"

(Contract) between Dominion and the County and will disclose confidential

1 Act of June 3, 1937, P.L. 1333, as amended, added by the Act of July 11, 1980, P.L. 600, 25 P.S.

§3031.5.

EXHIBIT D
information protected thereunder. The Court held ahearing on the Application to

Intervene on January 7, 2022.

Pennsylvania Rule of Civil Procedure 2327 provides:

At any time during the pendency of an action, aperson not aparty
thereto shall be permitted to intervene therein, subject to these
rules if

(1) the entry of ajudgment in such action or the satisfaction of

such judgment will impose any liability upon such person to
indemnify in whole or in part the party against whom judgment
may be entered; or

(2) such person is so situated as to be adversely affected by a

distribution or other disposition of property in the custody of the
court or of an officer thereof; or

(3) such person could have joined as an original party in the

action or could have been joined therein; or

(4) the determination of such action may affect any legally

enforceable interest of such person whether or not such person
may be bound by ajudgment in the action.

PA.R.Civ.P. 2327 (emphasis added). Pennsylvania Rule of Civil Procedure 2329

states as follows:

Upon the filing of the petition and after hearing, of which due
notice shall be given to all parties, the court, if the allegations of
the petition have been established and are found to be sufficient,
shall enter an order allowing intervention; but an application for
intervention may be refused, if

(1) the claim or defense of the petitioner is not in subordination

to and in recognition of the propriety of the action; or
(2) the interest of the petitioner is already adequately
represented; or

(3) the petitioner has unduly delayed in making application for

intervention or the intervention will unduly delay, embarrass or
prejudice the trial or the adjudication of the rights of the parties.

EXHIBIT D
PA.R.Civ.P. 2329 (emphasis added).

In sum, intervention is warranted where determination of the action in

question may "affect any legally enforceable interest" of the intervenor. PA.R.Civ.P.

2327. However, an application "may be refused" in the specific circumstances set

forth in PA.R.Civ.P. 2329. Such arefusal rests in this Court's discretion, and stands

absent amanifest abuse of that discretion. Deitrick v. Northumberland County, 846

A.2d 180, 185 (Pa. Cmwlth.), appeal denied, 856 A.2d 836 (Pa. 2004).

Dominion argues that its "legally enforceable interest" here stems from

the Contract. 2 Dominion insists that the Contract prohibits the County from allowing

third-party access to the System and confidential information therein, and expressly

authorizes Dominion to seek judicial action to protect its contractual interest in the

2 The Contract, which was admitted as evidence by joint stipulation at the hearing, provides, in
relevant part:
13. Confidential Information.

13.1. .... [E]ach Party shall be given the ability to defend the confidentiality of
its Confidential Information to the maximum extent allowable under the law
prior to disclosure by the other Party of such Confidential Information.
13.2. Subject to the requirements of the Customer's public record laws ("PRL" ),
neither Party shall disclose the other Party's Confidential Information to any
person outside their respective organizations unless disclosure is made in
response to, or because of, an obligation to any federal, state, or local
governmental agency or court with appropriate jurisdiction, or to any person
properly seeking discovery before any such agency or court.
13.3. .... To the extent consistent with PRL, Customer shall maintain the
confidentiality of all such information marked by Dominion as confidential. If a
request is made to view such Confidential Information, Customer will notify
Dominion of such request and the date the information will be released to the
requestor unless Dominion obtains acourt order enjoining such disclosure. If
Dominion fails to obtain such court order enjoining such disclosure, the
Customer will release the requested information on the date specified. Such
release shall be deemed to have been made with Dominion.
Contract §13, Ex. 1at 7.

EXHIBIT D
 face of any mandatory third-party access imposed on the County (though Dominion

maintains that the County is providing access to Envoy Sage only voluntarily). The

County responds that this matter concerns Respondent's authority to decertify one

county's voting machines under the Election Code, and that this matter will not

determine, and is thus wholly unrelated to, any interest Dominion may have under
the Contract.

The Court agrees with Petitioners. Although Dominion may have an

enforceable contractual interest in general, it has not shown that determination of

this matter in particular—which concerns only statutory authority for

decertification—will affect that legally enforceable interest. The County can choose

to allow third-party access to the System, as it did with the Wake TSI inspection.

This Court's order of December 21, 2021, merely postponed the scheduled

inspection with the consent of the parties. Even if the County's voluntary actions

violate the Contract, those actions are independent of this matter, and should be

litigated, if at all, in an independent action.

The parties and Dominion conceded during the hearing that, in order to

grant the Application to Intervene, the Court would need to construe the Contract.

But this matter concerns decertification and election investigation under the Election

Code, and is not the appropriate forum for the construction and vindication of private
contractual rights.

Moreover, even if Dominion had shown that its contractual rights might

be affected by the determination of this matter, the Court would deny the Application

to Intervene on another basis. As Petitioners persuasively argue, Dominion had

notice of the planned Envoy Sage inspection by, at the very latest, December 16,

2021, when the County's solicitor directly informed Dominion of the inspection by

EXHIBIT D
letter. Arguably, Dominion had notice earlier, by either August 18, 2021, when

Petitioners instituted this matter, or October 13, 2021, when Respondent authorized

another third party to inspect the System. Even asmall delay is "undue" when, as

here, the Court has ordered the parties to proceed on astrict timeframe.

The other disjunct of Rule 2329(3) is also met: intervention would

unduly delay and prejudice adjudication of the parties' rights. This Court has already

twice postponed the scheduled inspection, and Dominion's Application to Intervene,

filed exactly one week before the first rescheduled January 10, 2022, inspection date,

would unquestionably delay it further if granted. This would hinder resolution of

this matter—which, again, concerns decertification, not third-party access—and the

County's ability to prepare for upcoming elections. Although aparty may intervene

"at any time" under Rule 2327, delay in the face of actual or constructive knowledge

of the action, and the prejudicial effect thereof in this matter, persuades the Court to

exercise its discretion against intervention. See Appeal ofAusterlitz, 437 A.2d 804,

805 (Pa. Cmwlth. 1981); In re Upper Chichester Township, 415 A.2d 1250, 1253

(Pa. Cmwlth. 1980); see also 7GOODRICH AMRAM 2D §2329:8 ("The [undue delay]

standard is aflexible one, not capable of mathematical definition. ").

Because this matter is not the appropriate vehicle for litigating

Dominion's private contractual interests, and because Dominion unduly delayed

intervention to the prejudice of the parties, the Court will deny intervention.

MARY HANNAH LEAVITT, President Judge Emerita

EXHIBIT D
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Fulton, Fulton County Board

of Elections, Stuart L. Ulsh, in his
official capacity as County
Commissioner of Fulton County and
in his capacity as aresident, taxpayer
and elector in Fulton County, and Randy:
H. Bunch, in his official capacity as
County Commissioner of Fulton County
and in his capacity as aresident,
taxpayer and elector of Fulton County,
Petitioners
V. No. 277 M.D. 2021

Secretary of the Commonwealth,

Respondent

ORDER

NOW, January 10, 2022, upon consideration of the Emergency

Application for Leave to Intervene for the Limited Purpose of Seeking aProtective

Order (Application to Intervene) filed by Dominion Voting Systems, Inc., the

Application to Intervene is DENIED.

MARY HANNAH LEAVITT, President Judge Emerita

Order Exit
01/10/2022

EXHIBIT D
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Fulton, Fulton County Board :

of Elections, Stuart L. Ulsh, in his :
official capacity as County :
Commissioner of Fulton County and :
in his capacity as a resident, taxpayer :
and elector in Fulton County, and Randy :
H. Bunch, in his official capacity as :
County Commissioner of Fulton County :
and in his capacity as a resident, :
taxpayer and elector of Fulton County, :
Petitioners :
v. : No. 277 M.D. 2021
:
Secretary of the Commonwealth, :
Respondent :

PER CURIAM ORDER

NOW, January 7, 2022, upon consideration of letters submitted by

Respondent and Petitioners on January 6, 2022, and following a status conference,
upon agreement of the parties, this Court’s order of December 21, 2021 is hereby
AMENDED to postpone the inspection of Fulton County’s voting machines by
Envoy Sage, LLC, to Wednesday, January 12, 2022.
The parties are ORDERED to negotiate, in good faith, protocols that
will apply to said inspection. Further, the parties shall file a joint status report
advising of the status of their negotiations no later than 1:00 p.m. on Tuesday,
January 11, 2022.

Order Exit
01/07/2022

EXHIBIT E
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Fulton, Fulton County Board

of Elections, Stuart L. Ulsh, in his
official capacity as County
Commissioner of Fulton County and
in his capacity as aresident, taxpayer
and elector in Fulton County, and Randy:
H. Bunch, in his official capacity as
County Commissioner of Fulton County
and in his capacity as aresident,
taxpayer and elector of Fulton County,
Petitioners
V. No. 277 M.D. 2021

Secretary of the Commonwealth,

Respondent

PER CURIAM ORDER

NOW, January 11, 2022, upon consideration of the Emergency

Application of Respondent to Reschedule the January 12, 2022, Inspection due to

the Unavailability of Respondent's Expert, and Petitioners' Answer thereto, this

Court's order of January 7, 2022, is hereby AMENDED to postpone the inspection

of Fulton County's voting machines by Envoy Sage, LLC, to no earlier than 1:00

p.m. on Friday, January 14, 2022.

The parties shall continue negotiating protocols that will apply to said

inspection. Further, the parties' joint status report, currently due on January 11,

2022, shall now be due no later than 4:00 p.m. on January 13, 2022.

Order Exit
01/11/2022

EXHIBIT F
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Fulton, Fulton County Board

of Elections, Stuart L. Ulsh, in his
official capacity as County
Commissioner of Fulton County and
in his capacity as aresident, taxpayer
and elector in Fulton County, and Randy:
H. Bunch, in his official capacity as
County Commissioner of Fulton County
and in his capacity as aresident,
taxpayer and elector of Fulton County,
Petitioners
V. No. 277 M.D. 2021

Secretary of the Commonwealth,

Respondent

MEMORANDUM AND ORDER

Before the Court is Respondent Secretary of the Commonwealth's

(Secretary) December 17, 2021, Emergency Application for an Order Prohibiting

Spoliation of Key Evidence Scheduled to Occur on December 22, 2021 (Application

to Preserve Evidence), seeking relief in the nature of apreservation order against the

potential spoliation of evidence in this original jurisdiction matter. Also before the

Court is the Secretary's January 13, 2022, Renewed Emergency Application for an

Order to Enjoin the Third-Party Inspection Currently Scheduled for January 14,

2022, from Proceeding (Application to Enjoin Inspection). For the following

reasons, the Court denies the Application to Preserve Evidence and dismisses the

Application to Enjoin Inspection as improvidently filed.

This matter arises from Petitioners' 4-count Amended Petition for

Review, challenging the Secretary's decertification of the Democracy Suite 5.5A

voting system (System) the County of Fulton (County) leases from Dominion Voting

EXHIBIT G
Systems, Inc. (Dominion) for use in elections in the County. After the Secretary

initially certified the System in 2019, the County leased two such machines from

Dominion and used them in the 2020 General Election. Thereafter, the County

contracted with Wake Technology Services Inc. to inspect the System in conjunction

with the County's investigation of the processes used in the election. Thereafter, on

July 8, 2021, the Secretary issued Directive 1of 2021, which prohibits county boards

of elections from allowing third-party examination of state-certified voting systems,

and provides for decertification of any system so examined. On July 20, 2021, the

Secretary issued aletter to the County decertifying the System under Section 1105-

A of the Pennsylvania Election Code' for the stated reason that the County had

allowed a third-party examination. Petitioners filed an original jurisdiction

Amended Petition for Review seeking declaratory and injunctive relief to reverse

the decertification.

When the Secretary learned that Petitioners planned to allow another

third party, Envoy Sage, LLC (Envoy Sage), to inspect the System on December 22,

2021, she filed an emergency application to prohibit spoliation of evidence that

would allegedly occur during the inspection. The Secretary asserted that the County

might use the work of Envoy Sage in the County's action to set aside the

decertification.

After astatus conference on December 21, 2021, this Court entered an

order to reflect the agreement of the parties to negotiate protocols for the inspection

and to postpone the inspection to January 10, 2022. The Court subsequently issued

orders further postponing the inspection to January 14, 2022, to accommodate

further negotiation and the attendance of the Secretary's technical expert at the

'Act of June 3, 1937, P.L. 1333, as amended, added by the Act of July 11, 1980, P.L. 600, 25 P.S.
§3031.5.

EXHIBIT G
inspection. On January 13, 2022, the parties filed aJoint Status Report advising that

they remain, after weeks of negotiation, unable to agree on mutually acceptable

protocols. At the same time, the Secretary filed the Application to Enjoin Inspection,

asking the Court to postpone the inspection yet again in light of the parties' failure

to agree.

The Application to Preserve Evidence is premised on the alleged risk

of spoliation of evidence, which is "the non-preservation or significant alteration of

evidence for pending or future litigation." Pyeritz v. Commonwealth, 32 A.3d 687,

692 (Pa. 2011). A party that engages in spoliation faces numerous sanctions at the

court's discretion, ranging from an inference that the evidence would have been

adverse to the spoliator, to prohibiting other evidence offered by the spoliator, to

striking portions of pleadings or complete dismissal. See Schroeder v. Department

of Transportation, 710 A.2d 23, 27 (Pa. 1998); King v. Pittsburgh Water & Sewer

Authority, 139 A.3d 336, 346 (Pa. Cmwlth. 2016). These sanctions are applied in

proportion to the severity of the spoliation, and Pennsylvania courts have refined a

standard that applies particularly to spoliation of electronically stored evidence. See

PTSl, Inc. v. Haley, 71 A.3d 304, 316 (Pa. Super. 2013) (citing Pa.R.Civ.P. 4009.1

and explanatory comment to the 2012 amendment thereto, discussing

proportionality standard for electronic spoliation).

In addition to these well-developed sanctions that militate against

spoliation, courts occasionally issue preservation orders during discovery. See, e.g.,

King, 139 A.3d at 340 ("In its most obvious form, spoliation occurs in the context

of pending litigation when a party breaches a court's preservation of evidence

order."); PTSI, 71 A.3d at 318 (discussing compliance with trial court's preservation

order). Our Supreme Court has cited favorably to the balancing test set forth in

EXHIBIT G
Capricorn Power Company, Inc. v. Siemens Westinghouse Power Corp., 220 F.R.D.

429, 433-34 (W.D. Pa. 2004), for purposes of determining whether aparty is entitled

to such an order. See Pyeritz, 32 A.3d at 694. Capricorn Power directs acourt to

balance the following three factors:

(1) the level of concern the court has for the continuing
existence and maintenance of the integrity of the evidence
in question in the absence of an order directing
preservation of the evidence;

(2) any irreparable harm likely to result to the party

seeking the preservation of evidence absent an order
directing preservation; and
(3) the capability of an individual, entity, or party to
maintain the evidence sought to be preserved, not only as
to the evidence's original form, condition or contents, but
also the physical, spatial and financial burdens created by
ordering evidence preservation.

Capricorn Power, 220 F.R.D. at 433-34 (emphasis added).

The Secretary, as the party seeking the preservation order, bears the

burden under this test. She has failed, however, to demonstrate acritical element of

each of the three factors—that the data or state of the System subject to inspection

constitutes evidence in this matter worthy of protection. The spoliation doctrine

protects evidence, not information in general. The Secretary has not persuaded the

Court that she, or Petitioners for that matter, will use any data obtained from the

System as evidence in this proceeding.

Petitioners, who initiated this case and will therefore establish the

evidentiary scope of this litigation, have expressly disclaimed such ause, stating that

they "are not conducting an inspection of the voting machines. Petitioners are

complying with a request from Senator Cris Dush, Chairman of the

Intergovernmental Operations Committee of the Pennsylvania Senate [IOC]. The

EXHIBIT G
IOC's expert, Envoy Sage, is conducting the inspection on behalf of the Committee

" (Joint Status Report, Appx. 1, at 3(pagination supplied).) The inspection,

and the data it may generate or alter, are not evidence in this matter, which concerns

the principally legal issue of the Secretary's decertification authority under the

Election Code. Thus, the Capricorn Power test is so strained here as to be virtually

inapplicable, as all three of its factors contemplate evidence as the thing which is to

be protected. If only information, not evidence, is at risk, there can be no level of

concern for the integrity of evidence, no irreparable harm from destruction of

evidence, and no capability to preserve evidence. Even if the inspection does affect

evidence later used in this case, sanctions discourage spoliation.

Moreover, there is no underlying pleading to support apreliminary

injunction request. The Application to Preserve Evidence is adiscovery motion

sounding in the spoliation-preservation framework discussed above, which carries

its own legal standard distinct from that of injunctive relief. See Treppel v. Biovail

Corp., 233 F.R.D. 363, 370 (S.D.N.Y. 2006) (noting that "[i]nstead of importing the

standards for injunctive relief, some courts have instituted a balancing test for

determining whether to issue apreservation order," and citing Capricorn Power).

Given our analysis under that balancing test, the Court will not generally enjoin the

inspection, much less enter what would essentially be an ex parte injunction

purporting to bind Envoy Sage, among others. Because the Secretary has failed to

carry her burden to show that the inspection or its effects are evidence deserving a

preservation order, the Court hereby enters the following Order:

EXHIBIT G
 ORDER

NOW, January 14, 2022, Respondent's Emergency Application for an

Order Prohibiting Spoliation of Key Evidence Scheduled to Occur on December 22,

2021, is DENIED.

Further, Respondent's Renewed Emergency Application for an Order

to Enjoin the Third-Party Inspection Currently Scheduled for January 14, 2022, from

Proceeding is DISMISSED as improvidently filed.

MARY HANNAH LEAVITT, President Judge Emerita

Order Exit
01/14/2022
6

EXHIBIT G