Fight for Kitzhaber emails heats up with federal grand jury, Oracle (video)

Kitzhaber's lawyer battles grand jury's email demand Former Gov. John Kitzhaber's lawyer fought in federal court on Nov. 2 to block a federal grand jury subpoena for his emails. Assistant U.S Attorney Kelly Zusman opposed her.

Former Gov. John Kitzhaber's lawyer, Janet Hoffman, did not expect a recent hearing concerning a hush-hush federal influence-peddling investigation of her client would be public.

But it was, and now it's on YouTube. The Ninth Circuit Court of Appeals hearing gives new insight into Hoffman's fight to stop the state from turning over emails from the former governor's personal account to federal grand jury.

The fight is relevant not just to the investigation of Kitzhaber and his fiancee, Cylvia Hayes. Many of the same arguments are set for a Friday hearing in the court fight between the state and Oracle America over who's to blame for Cover Oregon. The state's health insurance website imploded last year despite $300 million spent.

Hoffman says the issue is about personal protections under the U.S. Constitution. Assistant U.S. Attorney Kelly Zusman, meanwhile, said it's about releasing public records that are located in state archives.

Here's what you need to know about the legal dispute:

What's at stake? At issue are thousands of emails, some of them involving sensitive matters of state, that Kitzhaber apparently didn't realize could become public record. They could shed light for the public on the unanswered questions about the controversy leading to his resignation in February. They could also help federal prosecutors make a case against Kitzhaber and Hayes, or bolster Oracle's arguments that the company is not to blame for the Cover Oregon debacle.

How did this happen? The situation is a fluke. Normally, state officials have state email accounts. Kitzhaber however, set up a gmail account just for state business, governor.kitzhaber@gmail.com. His spokeswoman in late 2014 said he wanted to keep the volume of email traffic manageable.

Things got complicated in June 2013, however. That's when Kitzhaber's state-business gmail account was joined to another gmail address that Kitzhaber used for both personal and state business,

. This new account was set up

for an earlier personal address,

It's unclear if the older address was being forwarded for convenience or due to technical issues.

The state then began archiving Kitzhaber's more personal account - named for his former consulting business, The Hundredth Meridian, Ltd.

The only hundredth meridian emails released so far are not from state archives; they are instead those submitted by Hoffman to the state as OK for disclosure.

What happened in the Ninth Circuit? Hoffman was there to ask the judges to overturn a lower court's ruling and block release of the emails. She says the Constitution's Fourth Amendment protects the emails from unreasonable search and seizure.

Her argument keyed on recent filings by Attorney General Ellen Rosenblum in the Oracle litigation. In the filings, Rosenblum concedes the state "inadvertently" archived the emails, but disputes that the state has them illegally. Hoffman argued the filings bolster her case.

The hearing was public because neither side specifically requested it be closed. A reporter for the East Oregonian Media Group and Pamplin Media Group was in attendance and broke the story. But all documents concerning the case, like the grand jury proceedings, remain under seal.

What happens Friday? On Friday, Marion County Circuit Court Judge Courtland Geyer will hear a request from Rosenblum to settle whether the state can review the Kitzhaber emails in its archives. Hoffman has asked for a protective order to keep the emails secret.

Nobody knows what the judge will say.

Tung Yin, a white collar crime and public records expert who is a professor at Lewis & Clark Law School, said Oracle is likely to argue that Kitzhaber, through his actions, sanctioned the archiving. The former governor presumably gave the state his gmail password to begin archiving his state-business account. It's also plausible that he also made the decision to set up a second gmail account, one that was joined with the first. Under either scenario, said the professor, Kitzhaber is saying, "Make it so."

So the state may well have the right to review the emails to see whether they concern state business and should be released, or should be withheld as too personal to disclose.

If Kitzhaber didn't realize that setting up the second gmail account would result in his personal emails being archived, arguably that's not the state's fault. Just because the archiving was inadvertent, Yin said, "I don't think that means their possession of the documents is illegal."

-- Nick Budnick
nbudnick@oregonian.com
503-294-5083
@nickbudnick

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