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Office of the City Attorney Michael R. Haas, City Attorney Patricia A. Lauten, Deputy City Attorney ASSISTANT CITY ATTORNEYS Steven C. Brist Kevin B. Ramakrishna City-County Building, Room 401 Jason Donker Matthew D. Robles 210 Martin Luther King, Jr. Boulevard Janae F. Hochmuth Kate M. Smith Madison, Wisconsin 53703-3345 Lara M. Mainella Jaime L. Staffaroni Amber R. McReynolds Doran E. Viste (Telephone) 608-266-4511 Marci A. Paulsen Brittany A. Wilson (Facsimile) 608-267-8715 Adriana M. Peguero Jennifer Zilavy [email protected] LITIGATION ASSISTANT Patricia V. Gehler January 14, 2022 Via e-mail to [email protected] Attorney Michael Gableman 200 South Executive Drive Suite 101 Brookfield, Wisconsin 53005 Re: City of Madison Responses to Sarah Edgerton Subpoena (return date of January 13, 2022) Dear Attorney Gableman: On behalf of the City of Madison and Information Technology Director Sarah Edgerton, we are submitting this correspondence and accompanying documents in response to the subpoena duces tecum issued by your office to Director Edgerton with a return date of January 13, 2022. Your office agreed to extend the return date to today and we appreciate that courtesy. This letter should be considered part of, and incorporated into, the City’s discovery responses. The documents and our responses to the subpoenas are produced subject to the following clarifications and objections:  No discovery or subpoena response nor production of documents should be construed as a waiver or concession of any argument the City may have regarding the enforceability, nature, or scope of any subpoena, all of which are expressly reserved.  The City of Madison objects to providing responses to subpoenas to counsel who are not legally appointed or authorized counsel of record in pending proceedings. We respectfully request that you provide written evidence of your continued and current appointment by the Wisconsin State Assembly as legal counsel or an agent authorized to act on behalf of the Committee. Based on information you filed with the Waukesha County Circuit Court on November 29, 2021, your company’s contract with Speaker Vos initially expired on October 31, 2021. Media reports have further indicated that your contract expired at the end of 2021. Please provide documentation of its extension through the current time. January 14, 2022 Page 2  The City of Madison and its agents and employees reserve all objections to production of documents or information which are subject to either the attorney-client or attorney work product privileges and no waiver of these privileges is made in our responses to any of these requests.  Numerous items requested are matters of public record and/or have previously been produced in the City’s prior responses and production of documents to you. To the extent information is publicly available through the City of Madison public information sources, such as the City’s website, the City objects to providing these documents as unduly burdensome and duplicative, and directs you to the public information sources for such information.  The subpoena duces tecum includes broad terminology which, if read literally, could require searching records of many City employees who are not involved in election administration as well as records that are unrelated to election administration. For the purposes of these responses, the City has confined its search to employees and officials who are involved in election administration and to documents, equipment and systems related to election administration. The City defines “election administration” to include, but not necessarily be limited to, tasks performed by City of Madison officials and employees related to reviewing nomination papers, certifying candidates, preparing ballots, managing and testing volume equipment, appointing and training poll workers, conducting absentee voting, election day voting, collecting election results, certifying election results, and recall or recount petitions and procedures.  Certain requests, including for election equipment source code, would, in our judgment, jeopardize the safety and security of future elections in Madison and would violate Wisconsin law and federal law. See, the definition of “critical infrastructure subsector” within the Department of Homeland Security. See 6 U.S.C. §§ 671-674; 42 U.S.C. § 5195c. All voting machine software components, including, “vote- counting source code, table structures, modules, program narratives and other human- readable computer instructions used to count votes with an electronic voting system,” are subject to the approval of the Wisconsin Elections Commission. Wis. Stat. § 5.905(1). Pursuant to that statute, the Wisconsin Elections Commission maintains such software “in strict confidence except as authorized in this section.” Wis. Stat. § 5.905(2). General information regarding software updates for machines used in Madison and throughout the State can be found through the Wisconsin Elections Commission website.  The City of Madison objects to providing personal information of individual citizens and voters, which raises privacy and security concerns and may discourage participation in the electoral process. The rights of Wisconsin citizens to privacy are enshrined in statute. Wis. Stat. § 995.50. The City of Madison objects to requests, and at this time declines to produce personally identifiable information for individuals, 01/14/22-F:\Atroot\Docs\mrh\Elections\Election Audits\Gableman Investigation\Corr re 1.13.22 subpoena.docx January 14, 2022 Page 3 including but not limited to social security numbers, dates of birth, and/or driver’s license numbers.  The City of Madison objects to requests that are vague and/or so overly broad as to make the universe of potentially responsive information unduly duplicative and burdensome. See, for example, your request for “any and all communications related to [the November 3, 2020 General Election], and/or any future Wisconsin election”. We remain willing to discuss a more reasonable and limited request. The City will continue to work on identifying appropriate and responsive documents and will timely supplement any additional responses on a rolling basis. We hope you appreciate and understand that providing responses to such broad and globally worded subpoenas present serious challenges for government operations already stressed by staff shortages and reduced operations due to the ongoing challenges of the pandemic. We have provided our best efforts in good faith and trust and expect that any deficiencies which you believe you may identify in our responses will be professionally handled through a “meet and confer” process. We ask that any suggestions for scope of supplementation efforts, questions about our responses or meet and confer requests be made in writing to my attention. Sincerely, Michael Haas City Attorney 01/14/22-F:\Atroot\Docs\mrh\Elections\Election Audits\Gableman Investigation\Corr re 1.13.22 subpoena.docx