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Avante International Technology, Inc. v. Hart Intercivic

May 14, 2008

AVANTE INTERNATIONAL TECHNOLOGY, INC., PLAINTIFF,
v.
HART INTERCIVIC, INC., DEFENDANT.



The opinion of the court was delivered by: Proud, Magistrate Judge

ORDER

Before the court is Plaintiff's Motion to Compel a Response from Hart Intercivic, Inc., to Interrogatories Nos. 3-4, 6-10 and Determine the Sufficiency of Hart's Answers to Requests for Admissions 3-13, 49-56 Under Fed.R.Civ.P. 37(a). (Doc. 68). Defendant filed a response at Doc. 74. Plaintiff filed a reply at Doc. 82.

Requests for Admissions

Fed.R.Civ.P. 36(a)(3) requires that objections be made within 30 days after being served. "The grounds for objecting to a request must be stated." Rule 36(a)(5). Objections that are not timely filed are waived.

If the court determines on motion that an objection is not justified, the court must order that the request be answered. If the court determines that an answer does not comply with Rule 36, the court may order that the matter is admitted, or that the answer be amended. Rule 36(a)(6).

Plaintiff served its First Set of Requests for Admission on August 10, 2007, although they were not filed with the court until September 17, 2007. (Doc. 47). Defendant filed its initial responses thereto on September 17, 2007. (Doc. 48). After the Motion to Compel was filed, defendant filed Supplemental Responses and Objections on March 3, 2008. (Doc. 69). The time for filing objections had long expired by then, so any objections made for the first time in the supplemental response are waived.

Hart has amended some of its responses to admit matters which it previously denied. Rule 36(b) requires that a party obtain leave of court to withdraw or amend an admission. For obvious reasons, leave is not required in order to change a response from "denied" to "admitted." Hart changed its position from "denied" to "admitted" on numbers 4, 5, 6, 7, 8, 9, and 13. However, Hart qualifies each of its admissions with the phrase, "To the extent that this Request refers to the eScanTM polling place system, . . . ." Avante complains that this "objection" was not made in the original response, and is therefore waived. The court does not consider this qualifying phrase to be an objection.

Request number 3 asks Hart to admit that it "offers voting equipment for sale on its website." Hart objected that the phrase "offers ... for sale" is vague, ambiguous, and calls for a legal conclusion. Subject to the objection, the request is denied. In its response to the motion to compel, Hart explains that its denial was directed to the "on its website" component of the request. That is, it does not deny that it offers voting equipment for sale, but it does deny doing so on its website. Rather, it says that it places information about voting equipment on its website, which constitutes advertisement or solicitation, and not an offer for sale. Technically, Hart is correct.

Requests numbers 10, 11, and 12 all ask Hart to admit that its eSlate voting equipment has a "voter verifiable paper trail." Hart initially denied all three requests, and has not supplemented its response.

Plaintiff argues that the response is false based on the fact that Hart's website indicates that Hart's equipment does, in fact, have a voter verifiable paper trail. Hart explains in its response to the motion that, while its equipment has a "Voter Verifiable Paper Audit Trail," this VVPAT is not a "voter verifiable paper trail." Hart also states that "Avante takes the position that the VVPAT capability found in Hart's products provides a voting session identifier." This is a rather curious statement; Hart's products either do or do not provide a voting session identifier. In any event, Hart goes on to explain that "'voting session identifier' has been construed to require that the voting machine gives the voter a number to take away from the voting place so he can later verify his published voting selections." Doc. 74, p.6. Because, according to Hart, its products do not provide the voter with a number to take away, its products do not have a VVPAT. Id.

This explanation by Hart of its denial of requests numbers 10 through 12 is tortured, at best. The requests do not ask about a voting session identifier. Hart's response to these three requests is a simple "Denied." Hart's response does not fairly respond to the requests, and Hart is ordered to amend its responses to respond to the request as posited.

Requests numbers 49 through 54 ask Hart to admit that its eSlate equipment utilized a "tough screen" in various years. Hart originally responded by objecting that the phrase "tough screen" is vague and ambiguous, but, subject to the objection, the requests were denied. Hart amended its answer to state the same objection, but, subject to the objection, the requests are now admitted. The phrase "tough screen" comes from Hart's own website. According to Avante, at least for some period of time, Hart's website referred to the poly-carbonate screen on its eSlate voting machine as a "tough screen." The objection to request numbers 49 through 54 is denied, and the requests are deemed admitted.

Request number 55 asks Hart to admit that the eSlate's "tough screen" is " electrically connected in some fashion" to the eSlate's processor. Hart objected that the phrase "tough screen" is vague and ambiguous. Hart has not supplemented its response. In its response to the motion, Hart argues that the phrase "in some fashion" is vague and ambiguous. However, that specific objection was not raised ...


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