Judge orders Cyber Ninjas to preserve audit records in lawsuit filed by The Arizona Republic

Ryan Randazzo
Arizona Republic

An Arizona judge for the first time Wednesday directly ordered the company that led the audit of the 2020 Maricopa County election to preserve all of its records from the effort so they can be released to the public.

The Arizona Senate and the company, Florida-based Cyber Ninjas, have argued in court that emails about the audit and other records are not subject to the state's Public Records Law that would require their disclosure.

The order in the case brought by The Arizona Republic is among several rulings dealing with the audit records held by Cyber Ninjas but is the first that addresses the company directly.

Maricopa County Superior Court Judge John Hannah didn't order the Senate and Cyber Ninjas to turn over those documents immediately, however, because a similar order from a judge in another case was placed on hold Tuesday by the Arizona Supreme Court.

But the order aims to ensure Cyber Ninjas preserve the emails so the public can review them once the litigation is settled.

"All defendants, including Cyber Ninjas, are ordered to carefully secure, protect and preserve from deterioration, mutilation, loss or destruction any and all records in their custody, possession or control that are reasonably necessary or appropriate to maintain an accurate knowledge of their official activities concerning the 2020 Maricopa County election audit, including records of the performance, funding and staffing of said audit," Hannah wrote.

Republicans in the Senate hired Cyber Ninjas to run the unprecedented audit, and the elected officials are still waiting for a preliminary report from the company after learning recently that its CEO Doug Logan and others had contracted COVID-19.

Two lawsuits seek Ninjas' records

Test ballots are hand counted on July 14, 2021, in the Wesley Bolin Building at the Arizona State Fairgrounds in  Phoenix.

The Republic's case is one of two lawsuits wending through the courts seeking the records, including emails and other communications among people involved in the audit.

A nonprofit group called American Oversight sued the Senate first, seeking the documents. The group was founded in part by former Obama administration officials to investigate the Trump administration.

The Republic subsequently filed a lawsuit, naming the Cyber Ninjas and the Senate as defendants. Both American Oversight and The Republic initially requested the documents through the state Public Records Law and filed their respective and separate lawsuits when records were not turned over.

Documents related to the audit are public records because the audit is happening under the direction of the Senate, a public body, and the Senate is required to make available records that are in the custody or control of Cyber Ninjas, the complaint from The Republic argues.

The judge in the American Oversight case ordered all the communications be made public, which the Senate appealed.

When the Senate lost again in the Court of Appeals, it appealed to the Supreme Court, which on Tuesday put the hold on the order for the Senate to produce records that are in the possession of Cyber Ninjas.

But Hannah said in his Wednesday order that when that hold, or "stay" in legalese, is lifted, the Cyber Ninjas will have just three business days to turn over the documents unless the Supreme Court decides otherwise.

Some records already provided

While litigation continues for the records Cyber Ninjas control, judges in both the American Oversight case and The Republic's case have now ordered the Senate to turn over records in its possession.

The Senate is providing those records in response to both cases on a rolling basis, posting them on a public website set up to answer the requests.

After a lawyer for American Oversight argued the Senate was moving too slowly, a judge ordered the release of all documents by Aug. 31, along with a log of records that are withheld for legal reasons.

Hannah made a similar order Wednesday, requiring the Senate to provide records in its possession by Aug. 31, along with a log detailing what documents it possesses but believes are not subject to public disclosure.

The Republic will have the opportunity to challenge the Senate on records listed as not subject to disclosure. That would require the court to review the documents for a case-by-case determination, according to Hannah's Wednesday order.

Supreme Court to make final decision

The Senate has declined to ask Cyber Ninjas to turn over audit-related records in its possession. And Cyber Ninjas has declined to turn them over as well.

Senate President Karen Fann at the Senate hearing on the progress of the election audit in Maricopa County at the Arizona Senate in Phoenix on July 15, 2021.

Senate President Karen Fann, R-Prescott, said it would set a bad precedent to subject government contractors to the Public Records Law.

The Senate has argued in court that the state Public Records Law does not apply to communications in the possession of government contractors, and also argued that legislative immunity protects the Senate from needing to produce the records.

Because American Oversight did not name Cyber Ninjas as a defendant in its case, the company is not subject to orders in that litigation. But The Republic did name Cyber Ninjas as a defendant.

Hannah on Wednesday also denied Cyber Ninjas' motion to dismiss the case. Still pending in court is a move by Cyber Ninjas to get a new judge to replace Hannah. The Supreme Court is reviewing that request.

Reach reporter Ryan Randazzo at or 602-444-4331. Follow him on Twitter @UtilityReporter.

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