David Cole, the Alabama state legislator whose election is being contested, has refused to sit for a deposition in the case for 3½ months, according to a court filing. And Elijah Boyd, who is contesting the election, has asked a judge to intervene.

Rep. Cole, R-Huntsville, has participated in the ongoing legislative session despite accusations in the lawsuit by Boyd that Cole was illegally elected because he did not live in District 10 for at least a year before the November 2022 election.

“Unless this court orders Cole to comply with (Alabama law) and appear for the taking of his deposition, Boyd believes that Cole will continue to refuse to do so, further delaying this matter,” the filing said.

The judge in the case, Madison County Circuit Judge Ruth Ann Hall, has not ordered Cole to give a deposition. But, in response to Boyd’s filing last week, Judge Hall set a scheduling conference hearing for Friday. In the filing, Boyd asked that a deposition date be set at the scheduling conference.

“We definitely believe Cole is intentionally evading his deposition,” Boyd’s attorney, Barry Ragsdale of Birmingham, told AL.com on Wednesday. “That’s why we were forced to involve the court in a process that is normally worked out between the lawyers.

“We believe that he is stalling in an effort to get to the end of the legislative session without having to admit that he is illegally serving as a Representative.”

Cole’s attorneys, Algert Agricola and Barbara Agricola of Opelika, did not respond Wednesday to a request for comment from AL.com.

Cole won the District 10 election on Nov. 9, 2022, receiving 51.62 percent of the vote. Boyd, the Libertarian candidate in the election, finished third and received 3.4 percent of the vote. Boyd contested the election in court on Nov. 22.

The motion filed last week by Boyd recounted efforts to arrange a time for Cole to attend a deposition. The process began Jan. 1 when Boyd applied for a commission for Richard J.R. Raleigh to take Cole’s deposition.

“Boyd contacted Cole to schedule a deposition date, but Cole repeatedly declined to provide any dates on which he was available,” the filing said.

On Feb. 27, the filing said Boyd contacted the commissioner and asked that he select a date for Cole’s deposition. No progress was made, the filing said, because of scheduling issues with Cole’s lawyers.

On March 14, Cole’s attorneys filed an objection in court to Boyd’s written questions that had been submitted to Cole. In the objection, it said Cole was asked to respond to 479 questions, which Cole’s attorneys said were “unreasonable, unduly burdensome and excessive.” The objection also said Alabama law restricts questions, or interrogatories, to 40 without the court’s permission to go beyond that limit. Cole’s attorneys asked that the questions be limited to 50.

“Cole has insisted that his deposition must be taken in Montgomery, Alabama, in the Alabama House of Representatives if it is taken during the current legislative session. Boyd disagrees,” the objection from Cole said.

The objection also reiterated the argument from Cole’s attorneys throughout the case that jurisdiction lies with the House of Representatives, not circuit court. The Alabama Supreme Court in February upheld Judge Hall’s ruling not to dismiss the case on the grounds that circuit court did not have jurisdiction.

On March 16, Boyd filed a motion to compel responses to the deposition questions. Judge Hall has not yet ruled on that motion.

“After several attempts to secure deposition dates, Cole eventually revealed that he would be unavailable for depositions from April 13th through April 28th because he will be ‘out of town’ despite it being in the middle of the current legislative session,” Boyd’s filing last week said.

Cole also said he was not available for any dates prior to April 13, the filing said. Cole’s lack of availability, the filing said, “are part of yet another attempt to postpone his deposition.”