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PacifiCorp denies unethical conduct in wildfire lawsuit

Reporter for The Canyon Weekly

PacifiCorp has opposed a motion seeking to limit its communications with class members in a lawsuit over the 2020 wildfires, claiming its recent contacts with fire survivors violated no ethical standards.

In a rebuttal filed Oct. 24 in Multnomah County Circuit Court in Jeanyne James, et al. v. PacifiCorp, defense counsel said the survivorsPacifiCorp spoke to had no attorney-client relationship with plaintiff counsel, and the company had no obligation to treat them as such.

The plaintiffs counsel argued it began representing all class members when the class was certified May 23 – including those who may be unaware of the suit. PacifiCorp argued this blanket representation does not take effect until a standard opt-out period expires Dec. 6.

Until that date, or until a class member expressly accepts plaintiff counsel’s representation, PacifiCorp argued its attorneys are not restricted from contacting class members and discussing the substance of the suit, provided they make no misrepresentations nor coerce class members into opting out.

“Because neither PacifiCorp nor its counsel violated [Oregon Rules of Professional Conduct], misled any class member, or encouraged any class member to opt-out, PacifiCorp’s conduct was not improper, and plaintiffs are not entitled to the broad relief they seek,” said the Oct. 24 filing.

Repeated class member contact

Plaintiffs filed a motion Oct. 7 seeking to limit PacifiCorp communications with class members after learning a claims agent for PacifiCorp discussed wildfire damage with three class members while neither disclosing the lawsuit nor the company’s adverse interests in the matter. 

The fire survivors in question were considered “absent” class members, meaning they fall within the definition of the class but are unaware of their membership.

The class includes residents or property owners impacted by the Santiam, Echo Mountain Complex, Obenchain, and 242 fires, which spread rapidly throughout Oregon Sept. 7, 2020. 

Plaintiffs are seeking $1.6 billion and argue PacifiCorp caused or intensified these fires by failing to maintain equipment and de-energize lines during high-risk conditions. PacifiCorp has denied all liability and wrongdoing.

The Oct. 7 motion additionally said defense counsel was preparing two PacifiCorp employees as witnesses while concealing their status as class members, and then claimed PacifiCorp still had a right to represent the two in the matter. 

These actions, plaintiffs claimed, caused unknown harm to the case and a court order was necessary to prevent further alleged unethical conduct.

More to the story

PacifiCorp did not dispute the ex-parte contact described by plaintiffs, but added context. It said the three men interviewed by the claims agent were each asked at the outset of the conversation if they had legal representation, and each man said he did not. After interviewing the fire survivors, the claims agent told them PacifiCorp denied liability for the fire damage and made no further attempts to interview the men.

In one instance, defense counsel directed the claims agent to cease all contact after a fire survivor attempted to provide evidence he believed would assist PacifiCorp in the lawsuit. The individual lost his home in the 242 Fire and claimed he had evidence it was caused by arson, including video and photos taken as the fire spread, and a copy of a police report of what he believed to be a related incident.

The motion for PacifiCorp said the company was prepared to issue a statement to the class members who have already reached out, and any who may contact PacifiCorp in the future, explaining the lawsuit, the definition of the class and the opt-out period. This would also be sent to any PacifiCorp employees who are also class members.

Plaintiffs objected to one clause in the proposed statement, which says PacifiCorp’s claims department is not authorized to discuss claims with fire survivors unless plaintiff attorneys approve first or unless they opt out of the suit. 

PacifiCorp said this statement is necessary to explain why PacifiCorp will not engage with claimants who may otherwise “be left guessing as to why PacifiCorp refuses to speak with them.”

Other unresolved issues

Also at issue is a request by plaintiffs for PacifiCorp to issue a corrective notice advising its recent contact with class members was improper. 

PacifiCorp has argued plaintiffs have not established that its contact with class members was improper, and said there are no Oregon statutes or case laws defining the point at which a class becomes represented by plaintiff counsel.  Based on standards elsewhere, it maintains representation takes effect after the opt-out period expires.

PacifiCorp also objects to a request by plaintiffs for all communications that arose from class member contact, including those between the claims agent and defense counsel. 

PacifiCorp said, while they agree to provide the hand-written notes of the claims agent and their emails with class members, attorney communications remain privileged.

PacifiCorp did agree it would not use any information or evidence arising from its contact with class members, but asked for clarification from the court on whether or not it would be allowed to depose the class members in question at an appropriate point in the future. 

The company indicated a desire to formally depose the homeowner who claimed to possess evidence exonerating it from liability, and noted this evidence was volunteered by the homeowner and without any prompting by PacifiCorp.

A hearing to consider the motion has not been set.

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