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PacifiCorp must hand over records of juror contacts

PacifiCorp has been ordered to turn over records of its out-of-court contacts with jurors in a wildfire lawsuit, with one of its attorneys singled out over the alleged misconduct.

During a hearing April 5 in James et al vs. PacifiCorp, Multnomah County Circuit Court Judge Steffan Alexander ordered that summaries of juror interviews be submitted for his private review.

PacifiCorp was given until April 12 to produce the records and was ordered to not destroy any documents or communications related to its juror contacts. Alexander’s order also prohibited further juror outreach.

After review of the summaries, Alexander is expected to rule on whether or not corrective action is required. This could include ordering PacifiCorp to provide all records and communications related to juror contacts to plaintiff attorneys, and possible legal sanctions.

Alexander said these allegations were “even more unique” due to the alleged role of PacifiCorp attorney Josh Dubin.

PacifiCorp confirmed during the hearing that a consultant employed by Dubin through his company Dubin Research & Consulting, of New York, was among those interviewing jurors. Dubin was admitted to the case as an out-of-state attorney March 5, the same day a jury in a second damages trial awarded $42.5 million to 10 plaintiffs.

“I think that makes this case distinguishable where it isn’t even just an outside consultant but an attorney who has … actually substantively participated in the most recent damages jury trial,” said Alexander.

The Canyon Weekly reached out to Dubin Research & Consulting and to Dubin directly for comment and did not hear back as of press time.

PacifiCorp admitted last month to contacting jurors in the case, claiming it was seeking feedback on its defense strategies. On April 5, company attorneys confirmed they had attempted contact with all 36 jurors across three trials in the case and “spoke substantively” to six jurors.

During a Phase I trial in spring of 2023, PacifiCorp was found liable for negligently causing the Santiam, South Obenchain, Echo Mountain Complex and 242 fires on Sept. 7, 2020. Phase II is under way to determine damages to a class of roughly 5,000, including bellwether trials held Jan. 8 and Feb. 26. So far a total of $217 million has been awarded to 36 plaintiffs.

Plaintiff attorneys learned of the juror contacts March 14 and in a motion the next day said PacifiCorp’s actions violated prohibitions on juror contact by attorneys and their agents outside of court. They also noted a 2005 Oregon Bar opinion which specifically said lawyers may not reach out “to determine what did or did not impress [jurors] about lawyer’s arguments.”

PacifiCorp admitted to the contacts in a March 18 filing and said its actions were benign and within the law.

During the April 5 hearing, plaintiffs attorney Cody Berne said PacifiCorp willfully defied an earlier decision by Alexander against juror contact.

Berne said, after the Phase I trial, PacifiCorp asked to “interrogate” jurors in court about possible legal misconduct during deliberations. Berne said Alexander denied this request and “rather than asking again [PacifiCorp] chose to simply go out and initiate contact anyway.”

Berne said there is a pattern of misconduct by PacifiCorp, including when it withheld or destroyed evidence during Phase I. He said PacifiCorp will continue seeking unethical advantages unless the court imposes “meaningful” consequences.

PacifiCorp attorney Per Ramfjord said plaintiffs misinterpreted the law and the rules in question only apply during trials. He also said the 2005 Bar opinion did not carry the weight of law and was specific to jury contact for the purpose of preparing an appeal.

“The [contacts] were not intended to and did not obtain information for use on apparel or in undermining any of the juries’ verdicts,” said Ramfjord.

He said, while the company does not believe any infractions occurred, it has already ceased further juror contact and that no action by the court is necessary.

In his ruling, Alexander said he “[does] not share defendant’s reading of the applicable laws” and reserved further commentary for after his review of the interview summaries.

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