Pretrial access to Sarah Heard’s private emails gets hot

It was no ordinary Valentine’s Day at the Martin County courthouse Feb. 14. The county was threatened with criminal contempt for failing to turn over a signed consent form to Lake Point attorney Ethan Loeb from Martin County Commissioner Sarah Heard.

Loeb contended that it simply was a delay tactic, since the public records trial begins next week, Feb. 21. The judge allowed three hours for Martin County to comply with his order.

Heard had signed the consent form to allow limited access to her private Yahoo email account, which accompanied a court-ordered subpoena on Friday, Feb. 10.

The Yahoo subpoena came after the county failed to comply with the judge’s order in January that would allow Martin County’s forensic IT consultant to share relevant information with Lake Point’s IT expert after examining her computer and private email account; however, Heard could no longer remember her password to the Yahoo account, which she had not used in more than three years, according to court testimony.

The subpoena ordered Yahoo to provide all passwords to Heard’s [email protected] account; all security, activity and event logs from Nov. 1, 2012, to Feb. 10, 2017; restore the account, including deleted emails, to the greatest extent possible; and to provide all emails, including attachments, on that account from Nov. 1, 2012, to Feb. 10, 2017, all of which were to be provided only to Judge William Roby, the presiding circuit court judge who issued the subpoena after meeting with both digital forensics experts in his courtroom to establish protocols for the search.

The information from Yahoo.com will go only to Roby, as part of his order.

Loeb has gone to court half a dozen times over the past few months asking both circuit court judges, Shields McManus, who retired Dec. 31, and Roby, who took over the case on Jan. 1, to compel Martin County to comply with judges’ orders, which including ordering Heard to sit for two depositions, to conduct a forensic examination of her computer and to have access to her private email account, none of which were ordered for the first public records trial in August 2015.

Both Martin County attorneys Nick Porter and David D’Agata, as well as Heard’s private counsel, Robert Critton, and Martin County’s outside counsel, Edward de la Parte, argued in court that Lake Point’s requests are not warranted, that the county fulfilled all of Lake Point’s public records requests and the request to access the Yahoo account violates Heard’s right to privacy.

“The amount of public dollars and paperwork (generated by this case) are mind-blowing,” said D’Agata, who affirmed the county’s position during a January hearing that discovery of more emails “neither proves nor disproves the county’s liability.” D’Agata called Heard’s email-hacking incident “a curiosity” and “a distraction.”

Roby told D’Agata that the situation requires consideration of the “smell factor,” he said, which is taught in law school. “If it doesn’t smell right, it indicates there’s usually an underlying cause…and this doesn’t smell right.”

Roby reminded D’Agata that Lake Point had been lied to previously in court and had not received the documents they had requested.

“Now they are saying, ‘We want proof’,” Roby added, “and I understand where they’re coming from.”

HOW IT ALL STARTED

The stand-off over Heard’s computer and private email account began four years ago after Lake Point, a mining and water restoration project near Indiantown, filed suit against the county and the South Florida Water Management District for an alleged breach of contract.

Loeb requested all email correspondence in February 2013 between all county commissioners and former commissioner Maggy Hurchalla regarding Lake Point’s operation, which was expanded to include private email accounts and personal electronic devices after Lake Point discovered that Heard conducted county business from her home computer.

Lake Point alleges that Hurchalla had interfered with their contracts – the basis of their legal action against her – and the emails would be relevant to their separate contract case, which will likely be heard in early summer.

Email correspondence between Hurchalla and four county commissioners, including Heard, Fielding, John Haddox and Anne Scott, were turned over to Lake Point after the company asked the court to compel production of emails and added public records violations to their original complaint.

Heard reported in 2013 that her personal computer had been “hacked” destroying all emails and contact lists, which she admitted included public records during court testimony in August 2015.

The judge’s ruling then found the county not guilty of violating public records laws, referring to the hacking only as “curious” and “unexplained.” That ruling was overturned in March 2016, after an undisclosed private email account belonging to Anne Scott included four previously undisclosed Hurchalla emails.

NO EVIDENCE OF HACKING BY A THIRD PARTY

The new public records trial, slated to begin Feb. 21, will address the hacked public records, as well as alleged public records violations by the county and four commissioners who received Hurchalla emails. Heard was ordered by McManus to turn over her personal computer for a forensic examination under strict protocols that allowed the county’s IT expert to examine the computer and report his findings to the Lake Point expert.

In his January 2017 report, the county’s IT forensics expert, Aaron Weiss, said that Heard’s computer did not appear to have ever been accessed by a third party, according to court records. He declined to affirm, however, that Heard’s computer definitely had never been breached, citing two hackings of Yahoo.com email accounts that gained national attention.

He reported also that a cleaning program, C-Clean, had been run on the computer in December 2012, but he did not report whether or not it had been used to wipe the computer hard drive clean of all information.

Although the court had ordered that the county’s digital forensics expert work with Lake Point’s expert, the strict terms of the protocols set by McManus prevented the collaboration.

“We’re not sure this even is Commissioner Heard’s computer,” Loeb told Roby, during a February hearing in his argument to allow Lake Point’s expert, a former National Security Agency employee, to assist the county in the search.

“The computer is registered to Jeff Heard, her husband, who’s a pilot,” Loeb added, “and there’s a flight simulation program installed and several files of (flight) simulations, but he found only six snippets of pockethouse emails.” The email “snippets” were not provided to Lake Point.

Even after the court ordered an examination of Heard’s private email account, the county’s IT expert could not gain access, because Heard had forgotten her password, according to the county’s attorney, which prompted Roby to set new protocols and to subpoena Yahoo.

“I’m not prejudging the case,” Roby said. “There’s just a lot of issues that need to be resolved.”

Three days have been set aside for the new public records trial, Feb. 21, 22 and 23, in the Martin County courthouse before Circuit Court Judge William Roby, unless the case is settled. Court-ordered arbitration took place Feb. 8 — 9, but the county has not yet received the arbitrator’s order, according to Acting County Attorney Sarah Woods.

An executive session with the county commissioners has been set prior to the trial to consider the arbitrator’s decision, and how the county wishes to proceed.

–Barbara Clowdus, Publisher

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