News for those who live, work and play in the Santiam Canyon

PacifiCorp accused of unethical contact

Reporter for The Canyon Weekly

Accusations of unethical conduct have been leveled against PacifiCorp in a wildfire lawsuit, claiming the company had ex-parte contact with fire survivors while concealing both the lawsuit and PacifiCorp’s interests in the suit.

A motion was filed Oct. 7 in Jeanyne James, et al. v. PacifiCorp. Attorneys for the plaintiffs said they had learned PacifiCorp investigators inappropriately interviewed multiple class members who were unaware of the suit, while defense counsel allegedly claimed to represent two class members who were also PacifiCorp employees.

The plaintiffs, represented by Edelson law firm, of Chicago, made the motion in Multnomah County Circuit Court requesting an order to limit PacifiCorp’s communications with class members. They asked the court to compell PacifiCorp to produce all records of class member interactions and a court order barring the use of those records during trial.

As of press time, PacifiCorp, represented by internal counsel and Los Angeles-based Hueston Hennigan LLP, had yet to file a response to the motion. Edelson said they plan to meet with defense counsel to narrow the issues the court needs to consider. At this time it has not requested a hearing to argue the matter.

 An eight-week trial in the case is scheduled to begin April 24, 2023.

When asked for comment, a PacifiCorp spokesperson said it is their policy not to offer statements with regard to pending litigation.

‘Absent class members’ included

The $1.6 billion suit was filed Sept. 30, 2020, by survivors of the Santiam Fire, who claim PacifiCorp negligently contributed to the fire’s growth by failing to maintain or de-energize equipment during high-risk conditions, claims PacifiCorp denies. 

On May 23 the class of plaintiffs was expanded to include survivors of the Echo Mountain Complex, Obenchain, and 242 fires, which impacted thousands of Oregonians during September of 2020.

Additional efforts are under way to consolidate related lawsuits filed in Oregon against PacifiCorp, including two lawsuits filed in August and September by more than 180 insurance companies seeking a combined $60 million, and a Sept. 1 lawsuit by Freres Timber Inc. seeking $40 million for physical and economic losses, and a $37.9 million suit by residential property owners impacted by the Santiam Fire filed Sept. 7.

When the class was expanded, it included numerous plaintiffs who were unaware of the lawsuit, termed “absent class members.” It is routine for plaintiffs’ attorneys to reach out to these absent members and inform them of the suit and the opportunity to become active participants, or to opt out of the litigation.

Once a class is defined, a defendant is barred from direct contact with plaintiffs, including absent members, as the class has legal representatives who are the appropriate points of contact. 

On Oct. 6, plaintiffs’ attorneys learned during a deposition that a claims agent for PacifiCorp had been interviewing absent class members at the direction of defense counsel, and without informing interviewees of either the pending lawsuit or PacifiCorp’s adversarial position.

Agent contact challenged

According to a summary of the deposition, a PacifiCorp agent called at least three survivors of the 242 Fire between mid-September and early October to discuss fire damage. The 242 Fire burned more than 14,000 acres in Klamath County, destroyed multiple structures including eight homes and threatened 1,500 other buildings.

The claims agent said the three individuals contacted PacifiCorp’s claims department to discuss damage caused by the fire, and she followed up by phone and email. The agent said, in mid-September, she contacted two men who co-owned a business that burned down, and on Oct. 5 she contacted another man whose home was damaged.

The agent said she asked questions including how the men believed the fire started, then provided her interview notes directly to legal counsel for PacifiCorp. 

In one instance a class member said he did not believe PacifiCorp caused the 242 Fire but that it may have been campers or others occupying the forests. At no point were he or the other two men advised of the lawsuit or the agent’s relation to defense counsel, the agent said.

The agent said she disagreed with assertions that PacifiCorp’s interests in investigating the fires were contrary to the interests of fire survivors.

“I view my investigation and our investigation as something that is in search of the truth of the ignition of the fire and I think that’s what most people want,” read an unofficial transcript of the agent’s deposition included with the Oct. 7 motion.

She also said additional class member contacts had occurred, but she did not recall specific details and no other contacts were described in the deposition excerpt.

Survivors/employees concealed

Court records also described two men who were PacifiCorp employees as well as class members, but PacifiCorp allegedly concealed their status as wildfire survivors and later claimed the two were represented by Hueston Hennigan.

Edelson attempted to depose one of these employees in April, but Hueston Hennigan said the employee was too traumatized by the fires to be verbally deposed, offering written testimony instead. 

Edelson sent an email May 12 asking for clarification on whether or not the employee was a potential class member, and no response from Hueston Hennigan was received. 

This employee and a second PacifiCorp worker were later scheduled for deposition in August and at that time Hueston Hennigan disclosed both employees were class members, yet the firm still intended to prepare them for the deposition. 

Edelson then asked PacifiCorp counsel to cease all communications with these employees, however, Hueston Hennigan asserted both men were “represented parties.”

Defense counsel cited laws around the rights of corporations to provide representation for employees when the corporation is held liable for wrongdoing committed by an employee. 

Edelson said the employees in question are not accused of wrongdoing and defense counsel had provided no legitimate grounds to continue representation.

“The actions of PacifiCorp’s counsel raise serious ethical concerns that we must address immediately,” said Edelson in an email to Hueston Hennigan dated Sept. 4.

Plaintiffs demand remedies

Edelson said these “misleading” interactions with class members have caused unknown harm and asked the court to restrict PacifiCorp counsel and all PacifiCorp representatives from communicating with class members regarding the substance of the lawsuit. 

They also asked that PacifiCorp reach out to all class members with whom they have had improper contact and explain the inappropriateness of their actions and the company’s adversarial legal position, and provide proof to the court that such notifications were sent.

Additionally, Edelson requested copies of all documentation related to improper interactions between class members and PacifiCorp, its counsel and those acting on PacifiCorp’s behalf, including any related internal communications. They also requested an order preventing any of these documents, or evidence collected as a result of improper interactions, from being used during trial.

These allegations are the latest in a series of legal maneuvers by PacifiCorp that plaintiffs have criticized. 

A trial set for Aug. 15 was postponed after PacifiCorp challenged the broad definition of class members to the Oregon Court of Appeals in July. Plaintiffs said the appeal was a stall tactic. It was rejected Aug. 25 by court administrators as meritless.

On Aug. 15, PacifiCorp objected to the use of community groups in outreach to absent class members, arguing such entities would under-inform or misinform plaintiffs. 

Plaintiffs said this was an unfair mischaracterization of groups that have spent the last two years helping fire survivors. On Sept. 27 an outreach plan incorporating community groups was approved by the court.

“The actions of PacifiCorp’s counsel raise serious ethical concerns that we must address immediately.”

– Edelson Law Firm in an email to Hueston Hennigan LLP

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