Lokk v. CMI, Inc., 2013–CA–000661–MR

• Decision Date: 27 February 2015
• Docket Number: NO. 2013–CA–000661–MR,2013–CA–000661–MR
• Citation: 457 S.W.3d 330
• Parties: Svetlana Lokk, Appellant v. CMI, Inc. (Real Party in Interest), Appellee
• Court: Kentucky Court of Appeals

457 S.W.3d 330

Svetlana Lokk, Appellant

v.CMI, Inc. (Real Party in Interest), Appellee

NO. 2013–CA–000661–MR

Court of Appeals of Kentucky.

RENDERED: FEBRUARY 27, 2015; 10:00 A.M.

BRIEFS FOR APPELLANT: Clay Wilkey, Owensboro, Kentucky

BRIEFS FOR APPELLEE: Alan C. Triggs, Owensboro, Kentucky

BEFORE: DIXON, J. LAMBERT, AND TAYLOR, JUDGES.

OPINION

J. LAMBERT, JUDGE:

This appeal¹ arises from an order of the Daviess Circuit Court ruling on a motion to enforce a certificate and order from a Georgia state court regarding electronic discovery pursuant to Kentucky's Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (the Uniform Act), Kentucky Revised Statutes (KRS) 421.230 to 421.270. Having carefully reviewed the record and the parties' arguments, we affirm.

Lokk, along with two other Georgia residents, Marcus Katnik² and Nkula Kyabua,³ initially commenced a joint action in the Daviess Circuit Court on September 6, 2012, with the filing of a Petition for Issuance of Subpoenas under the Uniform Act along with a request for a hearing pursuant to KRS 421.240(1). The three petitioners requested the circuit court to issue subpoenas for one or more witnesses who reside in, or whose principal place of business is in, Daviess County, Kentucky, and who had been determined to be material and necessary in their pending drunk driving criminal prosecutions in the State of Georgia. CMI, Inc., is a Kentucky corporation with a principal place of business in Owensboro, Daviess County, Kentucky. CMI manufactures the Intoxilyzer 5000, which is used in Georgia to perform breath tests of accused DUI suspects. The petitioners were seeking the source code for the Intoxilyzer 5000 to support their respective defenses. The petitioners stated that, in each case, a judge in the State of Georgia had certified under seal that there was a criminal prosecution pending and that CMI was a material witness in the prosecution. In following with KRS 421.240(2), the petitioners requested that the court issue a summons instructing the witness—CMI—to attend a hearing to permit the court to make the proper determinations according to the statute.

The Georgia certificates were attached to the petition.⁴ Lokk's prosecution arose out of the State Court of Gwinnett County, and was assigned case no. 12–D–00698–S5. She had been arrested on May 6, 2011, and charged with DUI based upon the results of the Intoxilyzer 5000 breath test that had been administered. In the order granting her motion for a certificate of materiality entered July 18, 2012, the Georgia court made the following findings of facts related to the materiality of the source code she was seeking:

The source code is material and necessary evidence in this case because:

1. The breath results from the Intoxilyzer 5000 are often the sole determinant of guilt or innocence in a DUI per se case.

2. Any error in calculations and analysis by the Intoxilyzer 5000 may result in the conviction of an innocent defendant.

3. A computer controls the Intoxilyzer 5000.

4. That computer runs a set of programming instructions known as source code in its human readable form.

5. Problems with the source code will result in breath testing result problems, such as unexplained readings, falsely high readings due to failure to detect mouth alcohol, volume sample irregularities, and false reports that a defendant refused testing.

6. In any piece of software programming of the length of the Intoxilyzer 5000, errors are bound to occur and this fact is common knowledge in the computer science profession.

6. Testing of the Intoxilyzer 5000 without the source code will not reveal all potential errors within the machine.

7. A review of the source code of the Intoxilyzer 5000 is necessary to ensure a fair trial for the Defendant.

Based upon these findings made from affidavits and proffers by the defendant as well as recent court rulings, the Georgia court found that the source code of the Intoxilyzer 5000 was material and that CMI was a material witness. The court authorized Lokk to seek an out-of-state subpoena for witnesses and evidence from CMI, including the source code of the Intoxilyzer 5000. The Georgia court entered the certificate of materiality on August 22, 2012, stating that the “source code” and “object code” of the Intoxilyzer 5000 were “critical features of the forensic breath machine that the Defendant has called into question.” Digital versions of the software and firmware were needed to test the source code. The court indicated that it would enter a protective order to protect CMI's trade secrets. The court also indicated that a hearing on the source code and trial were to be scheduled.⁵

On February 11, 2013, CMI filed a motion for a protective order, arguing that the certificate and order Lokk was seeking to enforce were deficient on their faces, and the petition was subject to dismissal as a matter of law. CMI, however, stated that it had agreed to waive these defects, and it proposed that the court issue a protective order, which was consistent with its position regarding other Uniform Act certificates filed in the court from Montana, Florida, Arizona, and Georgia. CMI stated that the circuit court had previously approved the same type of protective order in Uniform Act cases arising from Montana and Georgia. CMI went on to demonstrate that the Georgia certificate and order were defective because 1) they were not under any seal of the court, but were merely certified copies, and 2) they did not provide a specific date and time for a specific hearing. CMI then argued that discovery of CMI's source code was not a “material witness” to Lokk's criminal case. It was not directed to any existing claim or defense in the criminal trial. Rather, CMI contended that Lokk “simply seeks discovery of the source code, in hopes that a generic challenge to the Intoxilyzer 5000 may somehow be possible once examination of the source code is completed.” Further, CMI argued that it was not a necessary witness in Georgia, nor was evaluation of the source code necessary to determine the reliability of the Intoxilyzer 5000. Finally, CMI argued that it would be a hardship for it to provide the source code without a protective order in place. However, CMI stated that it was willing to disclose the electronic source code pursuant to a protective order. CMI tendered two proposed orders: one relating to the procedural and substantive defects in the Georgia orders, and one including the protective order.

In her response, Lokk argued that granting CMI a protective order would deny her statutory right to a hearing on necessity and materiality, violate her constitutional rights, exceed the court's subject matter jurisdiction, and create conflicting law between Kentucky and Georgia. Rather, she argued that the court should confine its ruling to whether CMI was a material and necessary witness, whether it would cause undue hardship for CMI to go to Georgia, and whether Georgia could adequately protect CMI's right to serve as a witness without civil process or arrest, all pursuant to the Uniform Act. She stated that she was entitled to be heard on whether the source code was necessary and material to her cases, among other issues. Lokk specifically requested a full hearing to determine these issues.

In reply, CMI asserted that the circuit court had scheduled a hearing to review the sufficiency of the certificate, which CMI stated it must first decide before holding a subsequent hearing to determine the statutory requirements of KRS 421.240. CMI also argued that the due process considerations in the Uniform Act were intended to provide the witness, not the defendant, with due process of law.

The circuit court held a hearing on March 13, 2013, on the pending motion by CMI. Counsel for Lokk stated that the hearing was to decide the facial contest to the certificate and order, and then return for another hearing to determine materiality and necessity if the court determined that the certificate and order were facially valid. The court indicated that it could dismiss the certificates if they were not facially valid; counsel for Lokk stated, “Fair enough.” The parties went on to discuss both the facial validity of the certificate and order as well as the materiality and necessity issue. After considering the parties' positions, the court found on the record that the certificate and order were facially defective under KRS 421.240(1). Counsel for CMI indicated that he was still willing to waive the defects if counsel for Lokk accepted the protective order. Counsel for the petitioners did not agree to that. Therefore, the court indicated that it would enter an order stating that the certificate and order were facially defective, without entering a protective order, and dismiss the petition. Counsel for Lokk stated that it was not proper for the court to make findings related to materiality and necessity unless a hearing was held on those issues.

On March 15, 2013, the circuit court entered an order dismissing Lokk's petition. The order provided in relevant part as follows:

This is a proceeding pursuant to KRS 421.230 to 421.270, the Kentucky Uniform Act. The Petitioner is a defendant in a criminal drunk driving prosecution in Georgia. He [sic] seeks an Order from this Court to enforce a certificate from a Georgia Court. The Georgia Certificate, and accompanying Order, seeks electronic discovery of the source code for the Intoxilyzer 5000 used in Georgia, as manufactured by CMI, Inc., of Owensboro, Kentucky.

Pursuant to KRS 421.240, this Court has independently reviewed the Georgia Order here. Based upon the foregoing, it is hereby ORDERED as follows:

1. The Georgia Certificate and Order are defective on their face. Neither contains a seal of the Georgia Court but, instead, is merely a clerk's certification of a copy of the Certificate and Order. Neither the Certificate nor the Order specifies when any CMI witness is to

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