Abbott v. Commissioner of Public Safety, Minn.Ct.App., (February 17, 2009). This is more Intoxilyzer 5000 source code discovery litigation. The Commissioner revoked Ms. Abbott's license because she had been driving with a 0.09 alcohol concentration; she filed an implied consent. In that proceeding she requested the source code. In support of that request, she filed affidavits and memoranda, which the appellate court rather derisively characterized as mostly "various books and articles and [gasp] cases from other jurisdictions."
The implied consent statute says that the hearing is to be conducted according to the rules of civil procedure, except that pre-hearing discovery is "mandatory" but limited to four enumerated items. The source code isn't one of those enumerated items. Any other discovery requires an order of the court. M.S. 169A.53. Under the rules of civil procedure, a court may order discovery that is relevant "to the subject matter involved in the action," provided that the requester can show "good cause." Minn.R.Civ.P. 26.02(a).
The appellate court bats the statute and the civil rules around for a few paragraphs. It then concludes that because Ms. Abbott is requesting non-mandated discovery - the source code - she must show either that the discovery is relevant; or, if not relevant, then she must show that there is good cause for its production. Ms. Abbott failed in this instance to establish that the source code was relevant; and, she failed in this instance to establish good cause.
Meanwhile, the Commissioner's federal litigation to get his hands on the source code continues.
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