Case 4:22-cv-03096 Document 90 Filed on 03/14/23 in TXSD Page 1 of 6

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

KONNECH, INC., §
§
Plaintiff, § Civil Action No. 4:22-cv-03096
§
v. §
§
TRUE THE VOTE, INC., et al., §
§
Defendants. §

DEFENDANTS’ OPPOSED MOTION FOR APPOINTMENT OF SPECIAL MASTER

Defendants True the Vote, Catherine Engelbrecht, and Gregg Phillips (“Defendants”)

move the Court for an order to appoint a special master to take possession of, and/or to oversee, at

the Court’s discretion, the creation of mirror-image forensic copies of the data stored on the

approximately 102 electronic storage devices currently in the custody of the Los Angeles County

District Attorney’s Office. The devices were seized by law enforcement officials, pursuant to a

lawful search warrant, on or about October 4, 2022, from Plaintiff’s facilities in Okemos and East

Lansing, Michigan, and from the residence of Plaintiff’s CEO, Eugene Wei Yu (“Yu”), also in

Michigan (the “Seized Devices”). A partial list of known items constituting the Seized Devices is

attached as Exhibit “A.”

Defendants seek the appointment of a special master for two primary reasons: (1) to prevent

the spoliation of discoverable evidence relevant to their defense in this matter, which concern is

more fully set out in Defendants’ Motion to Inspect Property; and (2) because multiple other

individuals and entities also seek to inspect the Seized Devices, either as parties, plaintiff or

defendant, in litigation against Konnech and/or Yu, or for purposes of investigating whether

Plaintiff or Yu violated state or federal laws or regulations relating to the storage of electronic data
 Case 4:22-cv-03096 Document 90 Filed on 03/14/23 in TXSD Page 2 of 6

– specifically concerning American poll workers and elections software – outside of the United

States. A copy of a subpoena from Georgia is attached as Exhibit “B.” A copy of letter to the

Superior Court in Los Angeles from the Sheriff of Johnson County, Kansas is attached as Exhibit

“C.” A table of jurisdictions that have employed Konnech to handle election software is attached

as Exhibit “D.” Forty-one are listed. Undoubtedly, litigation has arisen or will arise relating to

those contracts and the work performed, which may implicate the same electronic data. It may take

some time for the dust to settle. It is even more likely some of the parties in those cases or

proceedings, much like those here, do not even know at this stage in the process what items of data

will be needed in their respective cases or proceedings.

In support, Defendants state as follows:

1. A court may appoint a special master to address pretrial matters that cannot be

timely and effectively addressed by an available district or magistrate judge of the district. FED. R.

CIV. P. 53(a)(1)(C). Defendants suggest the administrative tasks required here would best be

handled by an independent third party working at the Court’s direction, given the Court’s and the

Magistrate Judge’s other responsibilities.

2. As set forth below, Defendants further suggest appointment of a special master will

not create unreasonable expense or delay for the parties. FED. R. CIV. P. 53(a)(3). In support,

Defendants would show as follows:

3. While Plaintiff alleges that Defendants violated the Computer Fraud and Abuse Act

(CFAA), this is at heart a defamation case. Plaintiff contends Defendants committed defamation

when Defendants made public statements stating Konnech stored U.S. election data in China and

was otherwise inappropriately working on American elections software in concert with Chinese

nationals. Substantial truth is a defense to defamation.

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4. Whether Konnech did or did not store U.S. election data in China can best be

determined by examining the data, particularly log files, resident on the Seized Devices, now in

the custody of Los Angeles County. Reviewing that data would be the best and most direct

evidence and could well be outcome determinative. Moreover, the data on the Seized Devices may

well support – or tend to disprove – Plaintiff’s allegation that Defendants accessed one or more of

its computers in violation of the CFAA. If the Seized Devices should be damaged or destroyed, by

accident or purposely, on their way back to Michigan, Defendants will be severely handicapped.

Plaintiff has called upon Defendants to mount a defense to very serious allegations, ones involving

highly fact-intensive questions. It is a considerable challenge, but one that would be practically

impossible without the evidence best suited to show who is right. An adverse inference instruction

at trial will not be sufficient if equipment is damaged, or data lost such that it cannot be retrieved.

Plaintiff says it has not damaged or destroyed it yet. In light of Plaintiff’s attempts to tamper with

witnesses and request that its Australian subsidiary delete data, as laid out in Defendants’ Motion

to Inspect, this is little consolation.

5. Plaintiff asserts in its Response to Defendants’ Motion to Inspect Property that

Defendants are asking Plaintiff to bear an unreasonable cost and to suffer an undue delay. This is

not true. First, Defendants are not asking Plaintiff to bear any cost and have instead volunteered to

share if not bear the cost. Second, time concerns can readily be addressed. Defendants have located

a qualified expert who could start tomorrow. See Exhibit “E” Affidavit of Aaron Hughes. If

Plaintiff does not approve of him, there are plenty of other such experts ready and willing to do

the job – in Houston or Los Angeles – at substantially lower cost than Los Angeles County has

apparently been quoted.

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6. Plaintiff also finds significance in the fact that the Los Angeles County District

Attorney has dismissed the criminal complaint filed against Mr. Yu. But as the Court knows from

the criminal side of its docket, this is far from unusual. Just as in federal court, there is a Speedy

Trial Statute governing California state court proceedings. See Cal. Penal Code Section 1382 (West

2020). Given the enormous volume of data on the Seized Devices, and the slow pace of the

bureaucratic machinery in Los Angeles County, the prosecution was not ready to proceed within

the deadlines imposed, so the prosecution dismissed the case. It can be refiled once the prosecution

is ready. They are well within limitations.

7. The dismissal also has no bearing on the validity of the underlying search warrant.

No court has found the underlying search warrant to have been improvidently granted. The

governing presumption is that the magistrate or issuing court in California found probable cause.

Nothing has changed since the warrant was issued that would alter that presumption.

8. One thing that has changed, however, is the Court itself—and this goes to Plaintiff’s

assertion that Defendants “sat on their hands.” Prior to Judge Hoyt’s recusal, Defendants faced a

bench so hostile that the Fifth Circuit, in granting Defendants’ Petition for a Writ of Mandamus,

observed that the district court had “used a temporary restraining order, a preliminary injunction,

and a civil-contempt order to litigate the case on Konnech’s behalf.” Phillips, No. 22-20578, 2022

WL 17175826, at *1 (5th Cir. Nov. 22, 2022) (emphasis added). Under such circumstances,

seeking the order that Defendants now request would have been futile, or at least suboptimal,

compared to seeking the order after the recusal. Further, this Court’s order of March 3, 2023

furnishes a new foundation for Defendants’ request for the appointment of a special master to

facilitate discovery related to the Seized Devices.

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9. The parties do not trust each other. Potential spoliation is an issue. Under these

circumstances, the appointment of a special master to facilitate discovery would be ideal and would

meet the concerns of all parties, including the concern for expeditiousness, and is in the interest of

justice.

WHEREFORE, Defendants ask the Court to appoint a special master to determine the most

expedient way to obtain and secure a mirror image of the data stored on the approximately 102

electronic storage devices pertinent to this litigation currently in the custody of Los Angeles

County, assessing costs as the special master sees fit and to adopt such procedures as he or she

may see fit in executing that assignment.

Respectfully Submitted,

GREGOR | WYNNE | ARNEY, PLLC

By: /s/ Michael J. Wynne

Michael J. Wynne
Texas State Bar No. 0078529
SDTX No. 0018569
Cameron Powell
DC Bar No. 459020
909 Fannin Street, Suite 3800
Houston, Texas 77010
Telephone: (281) 450-7403
mwynne@gwafirm.com
cpowell@gwafirm.com

ATTORNEYS FOR DEFENDANTS TRUE THE

VOTE, INC., CATHERINE ENGELBRECHT,
AND GREGG PHILLIPS

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CERTIFICATE OF CONFERENCE

I hereby certify that I have communicated with counsel for Plaintiff and that Plaintiff is

opposed to this motion.

By: /s/ Michael J. Wynne

Michael J. Wynne

CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of March 2023, this document was electronically filed

with the Clerk of Court using the CM/ECF system which will automatically send email

notifications of the filing to all attorneys of record.

By: /s/ Michael J. Wynne

Michael J. Wynne

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EXHIBIT A
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Partial List of Known Items Seized from Konnech by Los Angeles County
From residence:
Dell Latitude 5520 laptop
Dell XPS Laptop
Centurytel thumb drive
Seagate 80GB drive
Centurytel thumb drive
Seagate drive
My Passport Ultra drive
Foldable thumb drive
Silver thumb drive, foldable key chain
Black/silver foldable thumb drive
Lexar 16 GB thumb drive
Silver/blue thumb drive (X2)
Blue foldable thumb drive
Black foldable thumb drive
Gray RSA key (X3)
Sandisk 16GB thumb drive
Vertbatim thumb drive
White foldable thumb drive
Silver/blue centurytel thumb drive
Apple Iphone in clear/red case
Huawei phone
White Apple Iphone
Silver/black Dell laptop Inspiron
Fuji Film 16MB memory card
Olympus 16MB memory card

From Okemos office:

(4X) hard drives from Dell desk top computer
Dell EMC – Challenger C1
Dell EMC – Challenger SV
Dell EMC – Konnech backup
Dell EMC – Challenger C2
Dell EMC – Konnech Inc
Dell EMC – Power edge R640
Juniper network
Dell power edge R630
Dell power edge R620
Dell power edge R710
Dell power edge R710
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Dell power edge R740 XD

Dell power edge R7
Dell power edge T10 (710?)
Dell power edge T630 (7630?)
Dell power edge T630 (7630?)
Dell Inspiron laptop
Seagate external hard drive
WD SSD
Intel SSD
Samsung SSD 350 Pro
(19X) Dell external hard drives
(7X) Sandisk external hard drives
(6X) Tablet – Visual Land
(2X) Dell Power Edge R430
Dell external hard drive

From East Lansing office

Black/silver foldable thumb drive
Dell Laptop
Juniper Networks SRX345
LADA BOI Property – 6TB WD external hard drive (downloads from Nate)
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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KONNECH CLIENTS WHO IMPLEMENTED ELECTION SOFTWARE OVER PAST 17 YEARS (from Konnech’s DeKalb RFP)

STATES VOTERS VOTE CENTERS POLL WORKERS COUNTIES POPULATION

Alaska (Direct Pilot ABVote Service) 501,000 441 5,000 20 736,000

Montana UOCAVA Ballot Delivery and 656,000 550 6,000 56 1,005,000

Disabled Voter Services

New Jersey UOCAVA Ballot Delivery 5,494,000 3,500 35,000 21 8,865,000

Nevada UOCAVA Ballot Delivery 1,339,000 1,200 10,000 17 2,759,000

District of Columbia Total ABVote App, 465,000 143 2,200 1 658,000

DCBOEE site and Motor Vehicle System
Integration

Queensland Australia 3,389,473 N/A 10,000 N/A 5,071,000

COUNTY/STATE/COUNTRY VOTERS VOTE CENTERS POLL WORKERS COUNTIES POPULATION

CANADA

Calgary County, Canada 700,000 300 3915 N/A 1,285,711

Edmonton County, Canada 623,854 300 3848 N/A 812,000

Regina County, Canada 175,800 30 540 N/A 232,000

CALIFORNIA

Alameda County, CA 1,160,000 796 5000 N/A 1,510,000

Contra Costa County, CA 900,000 781 5000 N/A 1,156,530

Fresno County, CA 715,000 791 5170 N/A 1,006,250

Los Angeles County, CA 6,216,686 7000 80,000 N/A 10,015,940

Orange County, CA 651,000 500 5000 N/A 1,405,360

San Francisco County, CA 503,899 250 3001 N/A 883,305

Sonoma County, CA 300,000 24 350 N/A 496,801

Santa Clara County, CA 998,343 824 5000 N/A 1,924,000

COLORADO

Adams County, CO 250,000 20 200 N/A 469,000

Denver County, CO 394,100 51 510 N/A 727,211

Douglas County, CO 168,000 15 250 N/A 320,000

Je erson County, (state unknown) 387,951 20 350 N/A 586,370

FLORIDA

Alachua County, FL 153,000 69 N/A N/A 251,000

Brevard County, FL 404,000 129 260 N/A 550,823

Hillsborough County, FL 763,000 279 3200 N/A 1,278,000

Leon County, FL 187,000 99 904 N/A 284,000

1
ff
 Case 4:22-cv-03096 Document 90-4 Filed on 03/14/23 in TXSD Page 3 of 3

Loudon County, FL 210,000 70 1100 N/A 363,000

GEORGIA

DeKalb County, GA NEW CONTRACT NEW CONTRACT NEW CONTRACT N/A NEW CONTRACT

INDIANA

Allen County, IN 244,000 115 816 N/A 360,000

Indianapolis/Maron County, IN 184,121 75 390 N/A 372,096

KANSAS

Johnson County, KS 350,000 286 1800 N/A 567,000

NEW JERSEY

Bergen County, NJ 457,111 250 2100 N/A 932,202

Union County, NJ 364,000 433 1600 N/A 575,345

MICHIGAN

Detroit County, MI 500,000 188 5313 N/A 680,000

MASSACHUSETTS

Boston County, MA 350,000 160 1421 N/A 645,966

MINNESOTA

Minneapolis County, MN 270,000 115 1730 N/A 400,000

MISSOURI

St. Charles County, MO 256,000 114 736 N/A 368,000

St. Louis County, MO 750,000 438 4523 N/A 317,000

PENNSYLVANIA

Alleghany County, PA 922,325 1337 6527 N/A 1,250,578

TEXAS

Travis County, TX 634,000 257 1115 N/A 1,121,000

VIRGINIA

Fairfax County, VA 700,000 200 5000 N/A 1,131,000

Prince William County, VA 220,000 103 1100 N/A 430,000

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EXHIBIT E
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VIDOC RAZOR, LL
Mailing Address
4582 Kingwood Dr., Ste. E #39
Kingwood, TX 7734
832-413-4282

March 1, 2023

Michael Wynne
Gregor, Wynne, Arney PLLC

RE: Proposal for documentation, acquisition, and imaging

ABOUT THE FOUNDER

Aaron Hughes is the founder and President of Vidoc Razor LLC., which performs computer
security and forensics services for clients throughout Texas and the United States. In addi-
tion to providing information forensics service for the past 20 years, Mr. Hughes has pro-
vided credit-qualified training for attorneys, and law enforcement at the local and Federal
levels in open-source intelligence gathering techniques, and information forensics. Mr.
Hughes holds a patent in his area of expertise, and is a published author with the American
Bar association.

A curriculum vitae and letters of reference for Mr. Hughes have been attached to this pro-
posal.

PROPOSED SERVICES

Document (chain of custody), acquire, and preserve evidentiary items using industry stan-
dard methodology.

ESTIMATED PROJECT COST:

Flat-rates will apply for the items presented:

Thumb drives: $350
External/Full Hard drives: $850
Tablets/Mobile devices: $1250
Total Project Cost: $80,300

An itemized inventory and cost breakdown has been attached to this proposal.

 Case 4:22-cv-03096 Document 90-5 Filed on 03/14/23 in TXSD Page 4 of 6

Device/Cost Breakdown
Item Count Cost Total

Dell Latitude 5520 1 $850.00 $850.00

laptop
Dell XPS Laptop 1 $850.00 $850.00
Centurytel thumb 1 $350.00 $350.00
drive
Seagate 80GB 1 $850.00 $850.00
drive
Centurytel thumb 1 $350.00 $350.00
drive
Seagate drive 1 $850.00 $850.00
My Passport Ultra 1 $850.00 $850.00
drive
Foldable thumb 1 $350.00 $350.00
drive
Silver thumb drive 1 $350.00 $350.00
foldable key chain 1 $350.00 $350.00
Black/silver
foldable thumb
drive
Lexar 16 GB 1 $350.00 $350.00
thumb driv
Silver/blue thumb 2 $350.00 $700.00
drive (X2)
Blue foldable 1 $350.00 $350.00
thumb drive
Black foldable 1 $350.00 $350.00
thumb drive
Gray RSA key 3 $350.00 $1,050.00
(X3)
Sandisk 16GB 1 $350.00 $350.00
thumb drive
Vertbatim thumb 1 $350.00 $350.00
drive
White foldable 1 $350.00 $350.00
thumb drive
Silver/blue 1 $350.00 $350.00
centurytel thumb
drive
Apple Iphone in 1 $1,250.00 $1,250.00
clear/red case
Huawei phone 1 $1,250.00 $1,250.00
White Apple 1 $1,250.00 $1,250.00
Iphone
Silver/black Dell 1 $850.00 $850.00
laptop Inspiron
Fuji Film 16MB 1 $350.00 $350.00
memory card
Olympus 16MB 1 $350.00 $350.00
memory card
(4X) hard drives 4 $850.00 $3,400.00
from Dell desk
top computer Dell
EMC – Challenger
C1

1
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Item Count Cost Total

Dell EMC – 1 $850.00 $850.00

Challenger SV
Dell EMC – 1 $850.00 $850.00
Konnech backup
Dell EMC – 2 $850.00 $1,700.00
Challenger C2
Dell EMC –
Konnech Inc
Dell EMC – Power 1 $850.00 $850.00
edge R640
Juniper network
Dell power edge 1 $850.00 $850.00
R630
Dell power edge 1 $850.00 $850.00
R620
Dell power edge 1 $850.00 $850.00
R710
Dell power edge 1 $850.00 $850.00
R710
(4X) hard drives 4 $850.00 $3,400.00
from Dell desk
top computer Dell
EMC – Challenger
C1
Dell EMC – 1 $850.00 $850.00
Challenger SV
Dell EMC – 1 $850.00 $850.00
Konnech backup
Dell EMC – 2 $850.00 $1,700.00
Challenger C2
Dell EMC –
Konnech Inc
Dell EMC – Power 1 $850.00 $850.00
edge R640
Juniper network
Dell power edge 1 $850.00 $850.00
R630
Dell power edge 1 $850.00 $850.00
R620
Dell power edge 1 $850.00 $850.00
R710
Dell power edge 1 $850.00 $850.00
R710
Dell power edge 1 $850.00 $850.00
R740 XD
Dell power edge 1 $850.00 $850.00
R7
Dell power edge 1 $850.00 $850.00
T10 (710?)
Dell power edge 1 $850.00 $850.00
T630 (7630?)
Dell power edge 1 $850.00 $850.00
T630 (7630?)
Dell Inspiron 1 $850.00 $850.00
laptop
Seagate external 1 $850.00 $850.00
hard drive
WD SSD 1 $850.00 $850.00
Intel SSD 1 $850.00 $850.00

2
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Item Count Cost Total

Samsung SSD 1 $850.00 $850.00

350 Pro
(19X) Dell external 19 $850.00 $16,150.00
hard drives
(7X) Sandisk 7 $850.00 $5,950.00
external hard
drives
(6X) Tablet – 6 $1,250.00 $7,500.00
Visual Land
(2X) Dell Power 2 $850.00 $1,700.00
Edge R430 Dell
external hard
drive
Black/silver 1 $350.00 $350.00
foldable thumb
drive
Dell Laptop 1 $850.00 $850.00
Juniper Networks 1 $850.00 $850.00
SRX345
LADA BOI 1 $850.00 $850.00
Property – 6TB
WD external hard
drive (downloads
from Nate)

Grand Total 102 $44,950.00 $80,300.00

3
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

KONNECH, INC., §
§
Plaintiff, § Civil Action No. 4:22-cv-03096
§
v. §
§
TRUE THE VOTE, INC., et al., §
§
Defendants. §

ORDER ON DEFENDANTS’ OPPOSED MOTION FOR APPOINTMENT

OF SPECIAL MASTER

After considering Defendants True the Vote, Inc., Catherine Engelbrecht, and Gregg

Phillips’ motion for appointment of special master and the response, the Court

GRANTS the Motion.

The Court will issue a separate order setting out further details.

SIGNED on March _____, 2023.

_______________________________________
U.S. DISTRICT JUDGE