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Missing voicemail raises alarm in PacifiCorp trial

Wildfire survivors in a lawsuit against PacifiCorp claim a voicemail critical to their case was either hidden or destroyed by the power company and have renewed a push to impose sanctions.

A trial in James et al vs. PacifiCorp began April 24 in Multnomah County Circuit Court amid concerns that defendants allegedly failed to turn over all evidence in their possession.

On April 28, plaintiffs learned of a voicemail recorded Sept. 7, 2020, between PacifiCorp executives describing an alleged request by state regulators urging the company to de-energize its equipment.

Plaintiffs argue the voicemail could be a definitive record of what the company knew as the fires spread, but the recording has either been withheld or was not preserved.

In an April 30 court filing, plaintiffs requested “substantial sanctions” including striking PacifiCorp’s answer from the record, which could open the company to a default judgment in plaintiffs’ favor.

“PacifiCorp’s pattern of willful violations of the court’s orders, exacerbated by its misconduct in discovery and misrepresentations to the court, warrants extreme sanctions,” said plaintiffs.

Fire survivors include more than 5,000 victims of the Santiam, Obenchain, 242 and Echo Mountain Complex fires and they are seeking $2.2 billion in damages. PacifiCorp denies liability and blames the cause of the fires on climate change, forest management and other factors.

Plaintiffs first requested sanctions in November 2022 after PacifiCorp witnesses were allegedly coached into withholding information during depositions. Plaintiffs filed a second request April 14 after receiving vital evidence PacifiCorp held onto for more than two years.

Among this late-breaking evidence were details about a Sept. 7, 2020, phone call with state regulators including former state wildfire programs director Doug Grafe. Grafe said in a deposition he urged PacifiCorp and other power utilities to de-energize their equipment.

PacifiCorp did not de-energize its lines and disputes Grafe’s account of the phone call.

On April 21 Judge Steffan Alexander said, while there is reason to believe PacifiCorp violated evidentiary rules, the extent to which they allegedly did so was unknown. He could not rule on sanctions without a more complete record, and allowed plaintiffs to keep investigating as the trial began.

On April 28, plaintiffs deposed PacifiCorp Senior Vice President Scott Bolton, who was on the 2020 call with Grafe as PacifiCorp’s representative. Bolton said regulators were “freaked out” by fire conditions, and shortly afterward he left a voicemail for former PacifiCorp Vice President David Lucas describing the call.

Plaintiff attorneys said this was the first they heard of the voicemail, and are awaiting official confirmation on whether or not the record still exists or has been destroyed. 

They argued this was further proof of PacifiCorp’’s deliberate attempts to conceal vital evidence, and urged Alexander to impose sanctions to prevent further unknown damage to plaintiffs’ case.

A date to consider sanctions was not set as of press time. Plaintiffs are scheduled to present evidence through May 16, while defendants are scheduled to rest their case June 7.

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

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