March 25, 2023

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A U.S. appeals court has cleared two True the Vote leaders of contempt, overturning a judge’s order.

U.S. District Judge Kenneth Hoyt ordered Catherine Engelbrecht and Gregg Phillips of True the Vote jailed after he found them in contempt for not fully complying with a temporary restraining order that they, in part, reveal the identities of all persons who accessed information from Konnech, an election software firm.

Phillips named one of the people but he refused to name another, saying that the latter is an FBI informant. Engelbrecht said she thinks she knows who the person is but declined to identify the person.

The U.S. Court of Appeals for the Fifth Circuit later ordered the release of Engelbrecht and Phillips while declining to immediately rule on the contempt finding.

In the Nov. 22 ruling, a three-judge panel said Hoyt erred when he entered the order.

Demanding the identities “makes perfect sense when made by a plaintiff in discovery,” the panel said. “But the record does not reveal what sort of emergency justified the district court’s demand for that information before the parties could file Rule 12 motions, before the defendants could file an answer, before the parties could file their initial disclosures, or before discovery could begin let alone conclude in the ordinary course.”

Hoyt also did not explain what emergency justified jailing the defendants for not revealing the identities, the panel said.

“Rather, the district court made clear that it was imposing its disclosure requirements because it—the district court—wanted to add defendants to the lawsuit. That is not how the Federal Rules of Civil Procedure work,” it said.

“I’m ordering you right now to give the name to him. I want him in the lawsuit. Whoever it is, I want him in the lawsuit. And I want all of them in the lawsuit,” Hoyt said during one of the hearings.

A party cannot be held in contempt for disobeying an invalid order and Hoyt’s order was invalid because it disregarded the normal order of operations imposed by the rules, according to the panel.

By Zachary Stieber

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