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PacifiCorp agent ordered to testify about wildfires

A PacifiCorp claims agent has been ordered to testify about the potential causes of destructive Oregon wildfires in 2020 after company attorneys allegedly coached the agent and several other witnesses to withhold testimony.

On Dec. 27, 2022, Multnomah County Circuit Court Judge Steffan Alexander ruled in Jeanyne James, et al, vs PacifiCorp that the testimony of the claims agent was not privileged and plaintiff attorneys may proceed with a second deposition.

Plaintiffs claim PacifiCorp counsel repeatedly interfered during a first deposition in October, as well as the depositions of several other PacifiCorp employees early last year, by allegedly coaching them to not discuss the causes and origins of the 2020 Labor Day fires because such information could be protected by attorney-client privilege.

Plaintiffs said these were violations of a discovery order and have asked Alexander to sanction PacifiCorp for these alleged infractions. The Dec. 27 order said Alexander reserved ruling on sanctions at the time.

The suit was first filed Sept. 30, 2020, by survivors of the Santiam Fire, and has grown to include survivors of the Obenchain, Echo Mountain Complex and 242 fires. 

The class of plaintiffs, estimated at 5,000 individuals, are seeking a combined $2.2 billion, with a trial scheduled for April 24.

PacifiCorp has denied wrongdoing and is seeking dismissal of the suit as well as invalidation of class certification.

Alleged ongoing interference

This latest ruling was in response to a motion filed Nov. 4, 2022, seeking enforcement of a June 23, 2022, court order compelling PacifiCorp employees to testify about the causes and origins of the fires, as well as provide related documentation such as photos and video of downed trees and damaged equipment. Plaintiffs argued this testimony and documentation was vital because storm and fire damage have since been repaired and cannot be examined independently, and the witnesses and documentation in question are now primary sources of evidence.

Plaintiff attorneys had attempted to gather this evidence prior to the June order, and during seven separate depositions of PacifiCorp employees in early 2022 defense counsel allegedly instructed witnesses to not answer basic factual questions on the basis of attorney client-privilege. The June order said there was insufficient evidence such information was privileged and ruled employees must testify about the facts of the case and opinions they have formed about the causes and origins of the fires, excluding any communications originating from or opinions shared by legal counsel.

The order specifically allowed the testimony of the claims agent. During a deposition of the agent Oct. 6, 2022, defense counsel instructed her to not answer questions about the cause and origin of the fire, again asserting attorney-client privilege.

Privileged or crucial?

During a hearing before Alexander Dec. 19, 2022, PacifiCorp attorney Michael Behrens, of Hueston Hennigan LLP, in Los Angeles, said there was no impropriety during the claims agents’ deposition and any reminders about potential privilege were a matter of course. He said the agent was working at the direction of counsel to prepare their case and compelling her to testify was tantamount to compelling an attorney to speak about their legal strategy.

“To say these facts or these investigations are being laundered through attorney-client privilege is simply not correct,” said Behrens.

Plaintiff attorney Cody Berne, of Stoll Berne law firm, in Portland, said PacifiCorp “does not largely respond” to requests for discovery in this case, and some of the most vital pieces of documentation have been produced only after defendants were pressed by the court to do so. He said the way defense counsel instructed witnesses about privilege had a “chilling effect” and as a result obstructed what he said are “perhaps the most critical facts in the case.”

Alexander postponed ruling on the issue Dec. 19 and was expected to decide the matter Dec. 23, but this hearing was set over. On Dec. 27, further oral arguments were held and Alexander granted plaintiffs’ motion.

Editor’s note: This article has been corrected to accurately reflect the number of class members.

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