Republic seeks almost $690K in legal fees, agrees to settle Cyber Ninjas records case

The Arizona Republic is seeking nearly $690,000 in legal fees from the state Senate and Cyber Ninjas after a two-year public records fight over documents from the so-called "audit" of the Maricopa County 2020 election.

The news organization also has agreed with Cyber Ninjas, the Senate's "audit" contractor, to settle the case in exchange for certain outstanding documents the Florida company has related to the election review.

The settlement is not tied to the application for the legal fees, which was made in a separate request to the court.

The actions wind down more than two years of legal wrangling over the communications and public records from Republican state senators' decision in 2021 to hire Cyber Ninjas to count and inspect about 2.1 million ballots.

The "audit" created a spectacle at Veterans Memorial Coliseum as volunteers counted paper ballots on spinning tabletops.

In the end, Cyber Ninjas counted more ballots for President Joe Biden than the official state canvass and found no coherent evidence of malfeasance in the 2020 election.

Mark Brnovich, the Republican Arizona attorney general at the time Cyber Ninjas issued its final report, and his office's Election Integrity Unit could not corroborate or substantiate any complaints of widespread fraud.

The Arizona Republic and its parent company, Phoenix Newspapers Inc., have continued to fight for the texts and other documents from the "audit" to help the public better understand what took place that summer and the motivations behind the people who descended on Arizona to take part.

The news organization has obtained tens of thousands of documents thanks to a series of court victories, but many of the documents remain redacted. The settlement terms require certain remaining documents to be turned over by Nov. 10.

The parties agreed to settle "to avoid the costs of litigating" over the remaining Cyber Ninjas documents, according to the signed settlement filed in Maricopa County Superior Court.

Attorneys for the Logans, Cyber Ninjas and the Senate declined to comment.

Legal fees request cites prior court decision

The request for legal fees says that public bodies such as the Senate are liable for legal fees in public records cases where the party suing for records "substantially prevails" in court against a public agency that would not provide the records.

Ballard Spahr provided PNI legal services in the case at a 20% discount. The total figure would be $170,000 higher without that deal, according to court documents.

Attorney David Bodney, along with Craig Hoffman, Matthew Kelley and Kennison Lay handled the case for PNI.

"We’ve had virtually no assistance from the Senate in pushing Cyber Ninjas or its principals to produce the records," Bodney said Tuesday after the application for legal fees was filed.

"We certainly tried our level best to avoid this litigation. But the Senate and Cyber Ninjas left us no choice. If the public was to learn what this audit was all about, it would require the court to order them to follow Arizona law and disclose these records."

The application for legal fees specifically names Senate President Warren Petersen, R-Gilbert, Sen. Anthony Kern, R-Glendale, who is now the Judiciary Committee chairman, and Susan Aceves, secretary of the Senate, along with Cyber Ninjas, Logan and his wife, Meghan Logan.

Petersen was Judiciary chairman at the time of the "audit," and Sen. Karen Fann, R-Prescott, was Senate president, though she no longer is in office.

The request for legal fees cites the state Public Records Law, which indicates records should be provided "promptly."

The Republic initially requested all the documents related to the "audit" under the Public Records Law and sued the Senate and Cyber Ninjas on June 30, 2021, when they refused to provide the records.

The Senate eventually turned over some of its records in 2021 but continued to argue "audit"-related documents from Cyber Ninjas were not public records.

The court in August 2021 ordered the Senate and Cyber Ninjas to produce the records, and Fann then asked Cyber Ninjas in September that year to comply.

A Court of Appeals decision in November 2021 also directed the Senate to obtain Cyber Ninjas' "audit" records and turn them over. The Arizona Supreme Court declined to review the case.

A judge hit Cyber Ninjas with sanctions of $50,000 a day in January 2022 for not producing the records. Soon after, Fann sent another letter to Cyber Ninjas and three other contractors to turn over public records in their possession.

The court later agreed to name the Logans as defendants to the case since they were controlling Cyber Ninjas and planned to dissolve the company.

Only then did Cyber Ninjas begin to turn over many of the records, slowly, and in formats that made them difficult to sort and review.

Many of the documents Cyber Ninjas provided in late 2022 also included redacted, or blacked-out, messages that could not be read. The case has centered on those messages since then.

"To be sure, PNI's fees and costs in this public records case are substantial," the court filing said. "But the amount of fees incurred by PNI are a direct result of defendants’ stonewalling and aggressive litigation tactics in this case."

The filing notes the multiple motions the defendants filed in court and special actions filed in the Court of Appeals to attempt to avoid providing the records.

The Republic is not seeking to recover costs from every portion of the litigation but only related to those decisions in which the news organization "substantially prevailed," according to the filing.

One time the Republic didn't fully prevail was last year, when the Arizona Supreme Court determined that some of the Senate's records could remain private.

Logan to turn over remaining records

The Logans signed a settlement stating they agree to provide The Republic additional records. These include all communications with Michigan lawyer Stefanie Lambert and other players in the nationwide effort to overturn the 2020 election.

Cyber Ninjas provided Lambert's heavily redacted texts with Logan, but because of a digital error, The Republic was recently able to unredact most, but not all of those messages.

The Logans also agreed to turn over all remaining communications related to fundraising for the "audit" and any additional information about donations Cyber Ninjas received and payments it made to subcontractors.

In addition, they agreed to produce "any additional documents the Logans contend would indicate malfeasance or a cover-up by Maricopa County officials related to the 2020 election."

The Logans have until Nov. 10 to produce those records in accordance with the agreement.

Republic Executive Editor Greg Burton said in a court declaration that serving as watchdogs of government is a core duty of the news organization.

"Our commitment to serving the public interest in reporting news applies whether the arm of government we are covering is led by Democrats, Republicans or any other political group or party," he said.

Burton added that the news organization didn't know what it would get going into the case.

"We did not know what these records would reveal, but knew our readers had the right to inspect them," Burton said in his declaration. "PNI did not bring this action in response to any preconception about one leader’s administration or another."

Burton also cited a string of stories that stemmed from the public records obtained in the fight, including revelations first reported by The Republic that "audit" leaders courted former President Donald Trump to fund their work and that they could not tally the ballots they spent weeks counting.

"In sum, PNI invested substantial time, energy and attorneys’ fees to secure the very public records that our lawyers had requested from the Senate and its agent Cyber Ninjas before this lawsuit became necessary. These Defendants fought us every step of the way, but we persisted," Burton said in his declaration.

"If we are to shine a light on government activity — and a public body’s Audit of a presidential election is as central to a republic’s activity as it comes — then we must be entitled to recover our reasonable fees and costs in this case."

The filing for legal fees included a declaration from Patrick McGroder III, a member of Beus Gilbert McGroder PLLC, as an expert witness in support of the application for legal fees.

McGroder specializes in high-stakes cases.

"In my judgment, the prosecution of a special action against the Arizona State Senate, its president, the chairman of the Judiciary Committee of the Arizona Senate and the Senate's agent, Cyber Ninjas Inc., for access to public records concerning the Senate's election 'audit' is a form of high-stakes litigation," he wrote. "There can be no doubt that PNI has substantially prevailed in such public records litigation against the Senate defendants and Cyber Ninjas Inc."

Reach reporter Ryan Randazzo at [email protected] or 602-444-4331. Follow him on X, formerly Twitter: @UtilityReporter.

This article originally appeared on Arizona Republic: Republic seeks $690K legal fees after Cyber Ninjas records settlement