Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Thursday, October 07, 2004

E-mails which Diebold didn't want you to see

  • Diebold: More misrepresentations?

  • Ref and Ref: Order and finding against Diebold in re demands against students posting e-mails. Site. other discussion in re IP posting of alleged parody in re CNN.

    Other links of interest

    Diebold memos in pdf format.

    Diebold e-mail suffice. [For Ref]

    Open Media lawsuit information. [Perspective of plaintiffs]

    Swarthmore College: How the school responded to the Diebold lawsuit

    Diebold data shows Gore won in Florida in 2000.


    It is reasonable to concude that because the student previaled against Diebold, that "all other worldwide Dieboldc-counsel requests to have information removed" are without merit and based on illusory arguments the California court will not recognize.

    It remains to be seen whether Diebold chooses to take this issue up on appeal, or take the issue before a federal court in other litigation against another defendant.

    Until then, we are left with an unfortunate state of affairs, not just for Diebold, but also for the attorneys who spent considerable energy drafting these memos. We can only speculate as to what did or did not occur prior to litigation. It appears as though there was considerable momentum toward litigation, yet the court failed to support this effort.


    Two court cases found Diebold has engaged in inappropriate conduct. It remains to be seen whether their corporate charter is revoked -- in all likelihood their state charter in in a state that will allow court-sanctioned conduct to remain outside the criteria for continued incorproation; if a losing party in a lawsuit were subject to having their corporate status jeopardized, things might get interesting.

    Staff lists



    Lists of the Diebold e-mails, Search feature.

    E-mail publicly available through Google. Australia links to a fax.

    Phone numbers for Diebold.

    Here is the index to the indexes.

    Sample e-mail discussion and public withdrawl

    1. E-mail exchange

    2. Referenced website that was deleted, but still available: Ref

    3. Current version of the website after deletion: Ref

    4. The discussion outside Diebold control: Ref.

    Discussion on Diebold corporate psychology

    One thing that management has a problem with: Spending much time to suppress the information, rather than usuing the outside comments as a means to provide a critical look at the flaws, and get them fixed.

    It is interesting that management has spent much time rebuffing information, or hoping to shut it down; yet, a quick glace of the files indicates a pattern of conduct that deserves far greater management attention.

    Signs of desperation, confusion, and incompetence? If we are to believe they can handle something complicated like voting machines, one would think that we could look at their e-mails and find a corporation full of discussion that communicate confidence, competence, and resolution of major issues.

    Yet, a sign of problems is when simple things can't be taken adequately handled. Look at the types of things they talk about: Ref -- having a difficult time with very simple things like computer files. Why should we believe they really can solve complicated software problems related to voting?

    Notice also, that the questioner has not referenced the "link" or the "file access code" that they are using, making it harder for "outside support" to duplicate the error.

    Notice the time it took to handle something relatively simple as in, "Why can't I access a file"?

    Thursday, January 02, 2003 10:37 AM
    Thursday, January 02, 2003 9:02 AM
    January 2, 2003 9:13 AM
    Thursday, January 02, 2003 1:08 PM
    02.01.2003 10:31
    Thursday, January 02, 2003 1:48 PM
    Thu, 2 Jan 2003 14:18:01 -0500

    Notice a couple of things in the e-mails: Inconsistent time-date groups-structure; inconsistent times [local time vs 24 hour]; and no standardized-common-corporate time domain, making it difficult to assess the response time and quality-srevice indicators.

    This suggests that time-response-factors are not adequately evaluated by management, raising doubts about the measurement-tools used to assess whether responses are timely, useful, or actually solve the problem. Implies there is loose management oversight of the customer support, and little credible evidence that management does stress testing to evaluate whether customer-responses actually address the solutions; or whether additional training is required; nor is there any evidence that the management-training programs provided to customer service are standardized.


    How far did the Ohio firm take the case; were they primary, or hand-off to another firm?

    Ohio Based Information

    Lawyer Website

    Website analysis:,, Notice the common linux references.

    Others: PSCU -- Public Service Credit Union

    OrgName: APK Net, Ltd.
    OrgID: APK
    Address: 1621 Euclid Ave, Suite 1218
    City: Cleveland
    StateProv: OH
    PostalCode: 44115
    Country: US

    Site created 1995, with the following domain servers: NS2.APK.NET to SEGA setup.

    Lord Doom in Ohio.

    Fwan to here.

    Archive from Here, Password. IP and Setup Info
    IP:…..PPPoe DSL IP to APK
    Public/Private IP Info:
    Range: 161-190 usable…..Cisco Pix IP… (ite-dc1.ite.local)…..www (Host Header Web Site)… (itemeta1.ite.local)
    External DNS- and 2 (apk)
    DHCP Scope – 185
    Administrator (Domain and Local)=iteadmin1!
    Pix Telnet in=ite
    Pix Enable=iteadmin1!
    Pix Config URL= username, password iteadmin1!)
    Note: No telnet access from outside interface.

    Basi Network Diagram: Discussion: File content publicly available.

    From links to this other sample gateway.


    DAGHAYEG@YAHOO.COM, EBRAHIM DAGHAYEGHI, 1/25/1998 2:49:47 PM, ali javadi, 3/7/2004 1:56:37 PM, mahdi ghatee, 8/22/2004 2:47:22 PM
    texlib texuser, 2/23/2004 11:22:49 AM
    Blank: 3/7/2004 1:54:32 PM


    Ref: Under construction.

    Iran network.

    Public dicsussion



    Of note is the limited website traffic, suggesting Diebold was their only client. Yet, with all these attorneys with expertise outside Diebold's area of focus, it would be absurd to believe they're all working on voting machines.

    What is surprising is that despite the high profile of the California ruling, we don't have any significant traffic going to the law firm's site, suggesting the market has fizzled and they are not on the A-list. Then again, if you really trusted your attorney, would you even bother to think to look at the website hits?

    PTO Registered vs licensed patent attorney.

    Ohio Firm

    6 counsel

    Amanda Michelle Gashel Dillon

    - 31 years old, Born 1973, married, 2 children
    aka: Amanda Gashel Dillon
    husband: Michael Dillon
    daughter: Alexandra Noelle, born 7 Mar 2003.
    son: Tyler 3, as of Spring 2004

    - JD, Case Western Reserve University of Law cum laude
    - BA 1995 Westminster College - Fulton, MO, magna cum laude, economics
    - intellectual property attorney (commercial law).
    - judicial staff attorney for the Ohio Ninth District Court of Appeals
    - attorney for the Cleveland Municipal School District.
    - Admitted at 25, 1998, practices before the U.S. District Court for the Northern District of Ohio and the courts of the State of Ohio.

    Home: (330) 721-7288, 904 Yesterday Ln, Medina, OH 44256

    4 minutes to work: Along Highway 42, aka Ryan Road.

    Amanda G Dillon, (330) 721-0000, 231 S Broadway St, Medina, OH 44256

    Ralph E. Jocke

    - O: (330) 721-0000, 231 S Broadway St, Medina, OH 44256
    - patent attorney (mechanical, electrical and computer technology).
    - 51 years old, Born 1953; Admitted 1981;
    - J. D. Cleveland-Marshall College of Law, 1981
    - B.M.E. 1976, Cleveland State University
    - licensed professional engineer

    - Chair of the Computer Law Committee and Intellectual Property Law Sections of the Ohio State Bar Association
    - Secretary of the National Council of Intellectual Property Law Associations
    - admitted to practice before the U.S. Patent and Trademark Office and the courts of the State of Ohio.

    Patricia Susan Kramer

    - Born 1952, 52 years old, unmarried
    - technology attorney (commercial and trademark matters)
    - J.D. 1997 magna cum laude; Case Western Reserve University School of Law
    - M.S.S.A. 1997 Mandel School of Applied Social Sciences
    - B.A. 1974, summa cum laude, University of Notre Dame
    - judicial staff attorney for the Ohio Ninth District Court of Appeals
    - Admitted 1997, practices in the courts of the State of Ohio.

    Christopher L. Parmelee

    - Born 1968, 36 years old
    - patent attorney (mechanical and computer technology).
    - J.D. 1998 cum laude, Cleveland-Marshall College of Law;
    - B.S. Physics, 1990 Case Western Reserve University
    - 7 years analytical ferrography laboratory as an analyst and computer programmer developing laboratory information systems

    - Admitted 1998, practices before:

    -- U.S. Patent and Trademark Office
    -- U.S. District Court for the Northern District of Ohio
    -- the courts of the State of Ohio.

    Nancy L. Reeves

    - Born 1956, 48 years old
    - Admitted 1998
    - patent attorney (physics, computer science and applied mathematics).
    - J.D. 1998, first in class/summa cum laude University of Akron School of Law;
    -- aka: "Akron University Law School"
    - M.S. 1983 applied mathematics from Cleveland State University;
    - Oberlin College, A.B. < --- Which is it, Nancy: AB or BA? Why isn't the listing consistent? < --- details! - judicial staff attorney for the Ohio Ninth District Court of Appeals. - admitted to practice before the U.S. Patent and Trademark Office and the courts of the State of Ohio. Patricia A. Walker
    (330) 225-1669, (330) 722-5567, (330) 721-0000

    - owner -- no area of focus identified; perhaps focuses on litigation, case management not technical issues
    - Born 1953; 51 years old
    - Admitted 1981
    - J.D. 1981, Cleveland-Marshall College of Law
    - A.B. 1975, Grove City College
    - unmarried
    - certified as a civil trial attorney by the National Board of Trial Advocacy
    - admitted to practice before
    -- United States Supreme Court,
    -- Court of Appeals for the Federal Circuit,
    -- Sixth Circuit Court of Appeals,
    -- U.S. District Court for the Northern District of Ohio,
    -- U.S. District Court for the Southern District of Ohio and the courts of the State of Ohio.
    - member of the Board of Governors of the Ohio State Bar Association
    - past President of the Medina County Bar Association.

    Daniel D. Wasil

    - patent agent
    - B.S. 1982, nuclear engineering, University of Arizona
    - mechanical, computer, and nuclear technology.
    - No specific JD identified:
    - "valuable insight into patent prosecution,:
    - "broad experience in both public and private practice patent prosecution"
    - Admitted to practice before the U.S. Patent and Trademark Office.
    - PTO: Primary examiner, held a TS clearance.
    - 17+ yrs at US PTO
    - 5 year gap

    Fax wording of counsel.

    Sample demand letter, 35 copies publicly available. Corporate councel.

    Archive; Sign corporate counsel is not apparently very closely connected to the government. It remains unclear why the legal counsel's office for Diebold appears to be out of the loop, and not in a position to provide a timely response to the issue.

    Moreover, its strange that counsel would put a requirement on opposing parties to respond to [what later turned out to be] an unenforceable request in re the final litigation in California; yet, a public-government request for input was could not be timely completed.

    It is noteworthy that counsel places a high standard of performance on opposing parties that it is not able to meet itself; credible counsel would demonstrate that it could meet the standard that it imposes on others. A track record of not being able to timely respond to substantive issues is a credible basis to question the reasonablness of deadlines on other parties on equally compelling issues; and also raises questions about the timeliness of counsel's updates and filings with the client.

    Attorney Malpractice or State Bar Action?

    One thing the court found is that the public had the right to distribute and post the information. Also, the court found that the defendants were liable for making allegedly false and materially misleading statements to the ISP in contavention to statute in order to intimidate them into removing the information.

    This is not to say that either the corporation or its general counsel are liable or have commited a crime. It remains to be seen, however whether either the corporate officers and/or the general counsel false personal liabilites.

    Although under the business judgement rule officers generally have protection and justification for their action, it is of concern when we contast the court comments about the apparent misrepresentations against the comments made in faxes.

    In short, we might be alrmed that law firms have actually certified and have allowed sent via fax and electronic mails and across state and international boundaries, ceritifactions and attestations that the court later found to be unsubstantiated, unfounded, without merit, or in the courts words, "misprepresentations."

    Let's consider a specific statement that counsel has allegedly made and allowed to have transmitted, and compare it to the statements of the court that indicate the client-counsel had the duty, obligation to investigate, and apparently failed to exercise that care, resulting in a violation of the DCMA and what amounted to a loss before the California Courts.

    Handoff confirmed

    Two worlds collided, not just midwestern patent attorneys with California free speech; but the intellectual property and the Bill of Rights. In this situation, the Bill of Rights [the patent attorney's weakness] won out. Not only were they outside their Ohio-based area, but they ultimately had to litigate on constitutional issues, well off their radar when they initially sent the faxes to the IPs.

    Keep in mind the general theme of "practice area A" vs "practice area B" -- when lawyers are myopic, and lose their perspective of the "other issues" they can escalate.

    Ohio patent attorney: "To the best of my knowledge and belief, the information contained in this notification is accurate as of the time of compilation and, under penalty of perjury, I certify that I am authorized to act on behalf of Diebold."

    Note that none of the nams on the CA-order do not dovetail with those names in Ohio. Ref 16 of 16 confirming there was a hand-off from Medina to Cleveland. Ref.

    California Based

    Other Attorneys at the California-Ohio-based firm Ref: Archive

    Tharan Gregory Lanier: Northern California rep for Jones-Day.

    - native of Silicon Valley
    - litigates intellectual property and complex business matters involving fields ranging from semiconductors to proteins
    - tried numerous cases to verdict and has appeared before trial, arbitration, and appellate tribunals across the country.
    - admitted to practice in California, the Ninth and Federal Circuit Courts of Appeal, the United States Tax Court, and the Northern, Central, and Southern Districts of California.

    Robert A. Mittelstaedt: San Francisco

    - litigates and tries complex commercial matters, including antitrust, unfair business practice claims, and international law claims under the Alien Tort Claims Act
    - served as lead trial counsel or national coordinating counsel in state and federal antitrust matters and other class action matters for industries ranging from computer games and gasoline to Internet service providers and high-speed Internet access
    - handled regulatory matters before the California Public Utilities Commission, complex arbitrations and grand jury, and other criminal matters
    - experienced in devising efficient ways to dispose of complex cases, including defeating or limiting class certification and obtaining summary judgment.
    - Pro bono practice focuses on First Amendment and police misconduct litigation, including a recent injunction against the California prison system permitting prisoners to receive materials downloaded from the Internet [Good for prisoners, not for the rest of the public?]

    Matthew P. Vandall

    - complex commercial matters including antitrust, unfair business practice claims, contract, fraud, and interna-tional law claims under the Alien Tort Claims Act.
    - all phases of pretrial litigation, from settlement negotiations through discovery, motion practice, and alternative dispute resolution, and he excels in implementing cost-effective and efficient service at all stages of the litigation process.

    Adam R. Sand
    Adam Richard Sand

    - litigator focusing on the areas of antitrust and regulated industries such as telecommunications and energy.
    - Prior to joining Jones Day, served as a judicial extern for the Honorable Bernard Zimmerman, United States District Court, Northern District of California.
    - Prior to attending law school, owned and operated a small business in Hawaii; experience in several business and technology fields.
    How much did M&A and PTO pratice take a primary seat before the "technicalities" of the Bill of Rights? We can only speculate whether JonesDay had adequate staff coverage in California, or how familiar they were with the California court. Ref: Diebold M&A POC at JonesDay, see cases for Diebold listing.

    In short, we learn, as a result of the ruling in California, that just because an attorney certifies something is "accurate" does not necessarily mean that the information has sufficient foundation before the court, nor should necessarily be relied upon as a reasonable basis from which to argue or achieve a successful litigation. It may have been their "position," but that "commitment" in now way should be construed to mean "prevailing" before the courts.

    Rather, counsel has failed before the California courts; whether the council is from Ohio or California is irrelevant. The issue is that Diebold's initial faxes and messages demanding IPs remove the information were inadeqauate to prevail, thereby raising reasonable questions about the adequacy of counsel: Not just in terms of case management from firm A to firm B; but also in terms of the merits of the issues before even drafting the initial fax. Shows the risks of client directing general counsel without adequate coordination with the ultimate litigator in a second jurisdication and practice area.

    The client ultimately has the responsibility to ensure that counsel adequately is cross-flowing information; it remains to be seen how many other jurisdications have received notices from Ohio without adequately consideration for local rules. Again, this simply confirms the importance of federal-level regulation of attorneys. Had there been uniform standards that ensured patent-rights were asserted in a manner consistent with the federal Bill of Rights/free speech, the intellectual property issues would have been well-tamed.

    Relevance to Federal issues

    Again, it looks as though attorneys in the absense of leadership that embraces the full spectrum of the Federal law is for the moment filling in the gaps with threats just as DoJ has done in re Patriot Act. It is important for Patriot Act related issues concerning identification and the internet receive the full light of day. We see that a relatively simple issue of a posting in one juridiction can be costly; when parties are subject to direct accusations by DoJ without adequate vetting, we can only speculate as to the range of damage done.

    Moreover, the public is disserved when the issues are allowed to be secret. Indeed, the President does not have all the answers as evidenced by the abuses in Abu Ghraib, Guantanamo, and Afghanistan; we can only speculate as to the similarities between the White House Gonzalez memos and the string of attorney faxes eminating from Ohio.

    Coming back full circle to "practice area A" vs "practice area B" -- when lawyers are myopic, and lose their perspective of the "other issues" they can escalate. This problem is only compounded when the lawyers are allowed to operate in secret, and the opposing party is denied counsel as they have been in Guantanamo for three years. There should be no mistake: Lawyers will service their masters, without regard to the constitutional implications for the defendant.

    This is why the Patriot Act is a threat to all -- because those who dare operate in secret will abuse that position until they are forced to comply with the law and respect the other party. In this case, it looks as though legal counsel had a field day worldwide. It remains to be understood why an attorney who is authorized to practice before the Supreme Court would engage in conduct that essentially does little to inspire confidence in the legal profession. In short, the rest of the world who is not a party also has an interest in the matter. Although the world may not have direct standing in the issue, the courts precedent has significant implications for not just US citizens but any potential future defendant in any country.

    If the United STates is going to parade itself as the "great liberator" in Iraq, then it must show to the world that its legal officers act in manner that advances the public's confidence in the law, not simply moves without regard to the Bill of Rights. Diebold lost this case. But that loss is a clear sign that intellectual property and the internet are not a wild west, but require some oversight. In a similar veign, so too need there be adeuately provisions to inject Congress into both the Exeuctive Branch and the Judicial Branch when there are serious gaps in the legal divide. There is nothing stopping the judicial officers to go before Congress saying, "We've let one practice area get too strong" or "we need to make sure there is a greater balance between the practice areas" when disucssing issues related to the BIll of Rights.

    At no time should the trusting public be intimidated into silence for three years pending litigation results. Until the courts adjudicate, the Federal Government and opposing council can run their games. I ask you, "Where is the public's attorney general, the lead litigator who acts on behalf of the public, not just the President?" The public should not have to rely on private counsel like the ACLU to do its bidding, especially in cases where non-government attorneys are denied access, and private counsel associations refuse or fail to act for three years.

    Again, I ask: Where is the public's attorney in this? We see none. And this is the gap that Congress needs to compel the Judicial officers and the Executive to close.

    Matter at hand

    Let's turn back to the Diebold Situation. The high representation on the Ohio State bar raises reasonable questions. To be sure, we need not question the professional qualifications of counsel as they are duly certified members of the bar.

    But let's take a step back and look at the larger issues: Diebold spent considerable amount of time and energy fighting for a case that it ultimately lost; the California ruling is now precedent for others to bring a cause of action against Diebold.

    It remains to be understood through fulrther analsys of other clients'-legacies, whether the firm in Ohio has a track record of similarly providing, what later proves to be, legal advice that does not prevail. To be sure, counsel can only provide their best advice; but it remains to be understood whether this advice was really in the clients' best long-term interests. The results speak for themselves: Diebold lost. How the Ohio firm was related to Diebold from 1995 to 2004 remains unclear.

    We now turn to the issue of whether the court's findings that Diebold essentially made statements that were misstatments of the statute as to whether that would be a cause of action by either Diebold against counsel; or against any other corporation against counsel.

    We shall not speculate as to what is going through the minds of Diebold corporate leadership, but shall simply speculate that someone within the corporate-counsel nexus made not only a miscalculation, but has left considerable evidence of message traffic that the court now later finds is not only unspported but appears to violate the law. Is this true? There appears to be a reasonable amount of concern about the relibility of corporate counsel; and the adequacy of their advice when discussing with the client the merits of the case.

    Although we have no direct knowledge of the conversations between counsel and the client, someone made the decision to litigate rather than settle; and in cases where the prevailing party is awared damages and costs, there is a real possibility that someone within the corporation is looking at whether they can bring a malpractice lawsuit against corporate counsel.

    This is not to say that they will prevail in this action either; rather, it remains to be seen whether the corporation attempts to say, imply, or suggest, that anyone within the corporate counsel made statements that were not supported, or induced the corporation to a course of action that was improper or inefficient.

    Taking a broad view of things, and the time it took for the California court to put a muzzle on Diebold, it is well within the scope of possibility that the corporation is looking at its options in re legal councel.

    In other words, its all well and good for a law firm to run around the world via fax sending lovely messages, without a proper accounting. AT this point, it remains to be seen to what extent, if any, corporations other than the parties in the instant case take action, withdraw, or fire corporate counsel beecause they apparently have shown that they are not reliable, or provide legal advice that appears to be illfounded, or cause electronic transmissions to occur that are neither supported by caselaw, nor supported by succesful cases.

    It's ridiculous for any party to spend this much time and energy on a case that loses; someone miscalculated in not only sending the information, but also in their evaluation prior to litigation as to the merits of the case, and the trends before the court.

    In short with a track record like this, whereby a major corporation allows its corporate counsel to act on its behalf to send electronic data worldwide, only to lose that case, we might speculate as to the nature of the relationship between the corporate counsel in Ohio and the lawsuit in California.

    Of concern is that the primary firm issuing the statements lists nothing related to California, implying there was a hand-off. In other words, primary advocacy council in re pre-litigation had no knowledge of the statutes of the defendant jursidication-receiving state in re 1st Amendment, only focused on the the Federal statutes in re intellectual property.

    In other words, it appears the Ohio firm is heavy on intellectual property, and light on constitutional law experience, suggesting a myopic-focus; it remains to be seen whether Diebold as a client focused exclusively on the "technical" side of the issues without regard to the Bill of Rights.

    Risk Areas

    Did counsel have adequate understanding of the issues before the California Court?

    How adquate was counsel in screening their partners, if any, in California before going before the California Court?

    To what extent, if any, did the corporation adequately calibrate their oversight actions of the corporate counsel and litigators?

    Did the corporation adequately ensure the issues, before the e-mals and faxes were sent, were consistent with governing law; or did they rely on general counsel advice in re intellectual property without adequate consideration for the litigation issues?

    What methods, if any, did the corporations use to evaluate the corporate council in Ohio to ensure that the staff attorneys were adequately versed in the caselaw that would ultimately be relied upon during litigation?

    What methods, if any, did the corporate staff take to oversee corporate counsel and evaluate the merits of any advice, if any, against unfolding issues in the electronic media?