Olson v. Grant Cnty.
Olson v. Grant Cnty.
2023 WL 3682194 (D. Or. 2023)
May 1, 2023

Immergut, Karin J.,  United States District Judge

Text Messages
Sanctions
Bad Faith
Failure to Preserve
Spoliation
Protective Order
Failure to Produce
Cost Recovery
Mobile Device
Scope of Preservation
Adverse inference
Privacy
Download PDF
To Cite List
Summary
The plaintiff alleged that the defendant had accessed her cell phone extraction and shared her nude photos with others. The court ordered the plaintiff to produce any remaining communications between her and the defendant, but denied the defendant's motion for imposition of fees. The court found that the plaintiff had failed to produce admissible evidence that the defendant ever possessed the plaintiff's cell phone extraction, but that the plaintiff's privacy concerns were substantially justified.
Additional Decisions
Haley OLSON, Plaintiff,
v.
GRANT COUNTY, a government entity, Glenn Palmer, an individual, and Jim Carpenter, an individual, Defendants
Case No. 2:20-cv-01342
United States District Court, D. Oregon
Signed May 01, 2023

Counsel

Meredith Holley, Law Office of Meredith Holley, 207 E 5th Avenue, Suite 254, Eugene, OR 97401. Attorney for Plaintiff.
Aaron Hisel and Rebeca A. Plaza, Law Offices of Montoya, Hisel and Associates, 901 Capitol Street NE, Salem, OR 97301. Attorneys for Defendants Grant County and Glenn Palmer.
Immergut, Karin J., United States District Judge

ORDER DENYING DEFENDANTS GRANT COUNTY AND GLENN PALMER'S MOTION FOR IMPOSITION OF FEES

*1 Before this Court is Defendant Grant County and Defendant Glenn Palmer's (collectively “Defendants”) joint Motion for Imposition of Fees. ECF 150. Defendants move for an Order pursuant to Federal Rule of Civil Procedure 37 requiring Plaintiff Haley Olson (“Plaintiff”) and/or Plaintiff's counsel to pay a portion of the attorney's fees incurred in making their Motion to Compel, ECF 67, which this Court granted on March 15, 2022, ECF 87, as well as in defending against Plaintiff's Motion for an Adverse Inference, ECF 123, which this Court denied on March 22, 2023, ECF 148. For the following reasons, Defendants’ Motion is DENIED.
BACKGROUND
A. Factual Background
The facts underpinning this litigation were recounted in detail in this Court's Opinion and Order related to the parties’ cross motions for summary judgment and Plaintiff's Motion for Adverse Inference. ECF 148 at 2–7. This Court assumes that the parties are familiar with the facts of this case and summarizes those facts briefly as follows.
Plaintiff, a resident of Grant County, Oregon, was arrested in Idaho on marijuana-related drug trafficking charges in January of 2019. Id. at 3. At the time of her arrest, Plaintiff consented to a search of her cell phone by the Idaho State Police which downloaded an extraction of her phone's contents. Id.
On or about January 23, 2019, Defendant Palmer, who was employed as the Grant County Sheriff, received information that a person from Grant County was arrested in Jerome County, Idaho, and that a business card of Grant County Sheriff's Deputy Tyler Smith was found in the arrestee's vehicle. Id. Defendant Palmer did not believe either Plaintiff or Deputy Smith had committed a crime in Oregon; nonetheless, Defendant Palmer decided to attempt to obtain Plaintiff's cell phone extraction from the Idaho authorities. Id. After an Idaho law enforcement official declined to share the cell phone extraction directly with Defendant Palmer, Defendant Palmer asked Defendant Jim Carpenter, who was employed as the Grant County District Attorney, to request the cell phone extraction. Id. Defendant Carpenter obtained the extraction from the Jerome County prosecutor in Idaho without seeking a warrant or obtaining additional consent from Plaintiff. After reviewing the contents of the extraction, Defendant Carpenter determined no further action was warranted with respect to Deputy Smith, and deleted the extraction. Id. at 3–5.
Plaintiff alleges that, at various points in 2019 and in various public places, strangers began making derogatory comments to her and alluding to the circulation of her nude photos, which led Plaintiff to believe that someone within the Grant County Sherriff's Department had accessed her cell phone extraction and shared those photos with others. Id. at 6. On December 4, 2019, Plaintiff sent Defendant Carpenter a public records request seeking all relevant communications about the cell phone extraction. Id. That same day, Defendant Carpenter wrote a letter to Plaintiff explaining the circumstances of his review and that he had destroyed his copy of the cell phone extraction and reformatted the flash drive to avoid any risk of the content being disseminated elsewhere. Id.
*2 Plaintiff originally filed her complaint against Defendants in Grant County Circuit Court on April 14, 2020. ECF 1-1 at 1. Defendants removed the case to federal court from the Grant County Circuit Court on August 10, 2020. ECF 1.
B. Defendants’ Motion to Compel
As the parties proceeded to discovery, Defendants Grant County and Palmer issued a request for production on Plaintiff that sought “[a]ll written messages of and between plaintiff and Tyler Smith from January 2019 to February 25, 2021.” ECF 67 at 3. The request noted that “some of these messages may contain sensitive content” and stated that Defendants’ expected “that [those messages] would be produced subject to the attorneys’ eyes-only provision of the [previously granted] Stipulated Protective Order.” Id. Plaintiff objected to the request as “overbroad, unduly burdensome, redundant of other requests, and not proportional to the needs of the case.” Id. Plaintiff also objected “to providing documents that are attorney-client, work product, physician-patient, or otherwise privileged.” Id. Nonetheless, Plaintiff stated that she had provided all “responsive non-privileged documents” to the request. Id.
According to Defendants, these “responsive non-privileged documents” consisted of “overlap from separate Requests for Production that are messages from the date range of January 1, 2019 to February 6, 2019” as well as “a single undated page” of additional communications. Id. Through conferral, Plaintiff conceded that there were no additional responsive messages in her possession from February 2019 to March 2020 because Plaintiff deleted those messages as a result of storage settings on her cell phone and in the process of obtaining a new cell phone after the initiation of the litigation. Id. at 4.
On October 28, 2021, Defendants filed a Motion to Compel and Request for Sanctions. Id. Defendants asked this Court to dismiss the case pursuant to Federal Rule of Civil Procedure 37, or, in the alternative, order Plaintiff to produce any remaining non-deleted records of communications between her and Deputy Smith. Id. at 2. Defendants also requested “appropriate sanctions including an inference in the defendants’ favor and an attorneys’ fee award for having to file this motion.” Id. Plaintiff opposed the motion, arguing that some communications were provided; some were not in Plaintiff's possession, custody, or control after a reasonable search; some were not discoverable on the grounds of relevance, privacy, overbreadth, burden, and proportionality; and others were protected by the attorney-client and common interest privileges. ECF 70 at 3–5.
On March 15, 2022, this Court granted Defendants’ Motion to Compel in part, ordering Plaintiff to produce any of the remaining communications that Defendants sought. ECF 87 at 5. Specifically, this Court found that Plaintiff “acted with intent to deprive Defendant of the information with respect to the messages erased after the initiation of litigation.” Id. at 3. While noting that the messages may have been deleted by routine storage settings, as Plaintiff contended, this Court nonetheless found that Plaintiff “could have altered those settings but chose not to, leading up to and after she filed this lawsuit.” Id. In the same vein, though this Court did not fault Plaintiff for obtaining a new phone during the pendency of this litigation, it noted that “Plaintiff ... knew how to save information she wanted when transferring phones and should have done so here.” Id.
*3 This Court additionally found Plaintiff's stated reasons for failing to disclose the remaining non-deleted but unproduced communications unavailing. Id. at 4. This Court stated that although Plaintiff “may consider the messages between Plaintiff and [Deputy] Smith to be private,” Plaintiff had cited no authority to support privacy as a reason to withhold messages that were “central to Defendants’ theory of the case.” Id. This Court likewise rejected Plaintiff's attorney-client and common interest privilege arguments, noting that neither Plaintiff nor Deputy Smith “are attorneys” and that common-interest did not apply because “Plaintiff and [Deputy] Smith are neither co-parties in any matter nor pursuing a common legal strategy in any matter.” Id. at 4–5.
This Court held that Defendants were entitled to an adverse inference regarding the deleted communications but reserved ruling on the issue of attorney's fees. Id. at 5.
C. Plaintiff's Motion for Adverse Inference
On June 6, 2022, following Defendants filing of a Motion for Summary Judgment, ECF 101, and Plaintiff's filing of a Motion for Partial Summary Judgment, ECF 103, Plaintiff filed a Motion for an Adverse Inference and Imposition of Sanctions related to Defendants Carpenter and Palmer, ECF 123. As to Defendant Palmer, Plaintiff argued that he failed to take reasonable steps to preserve Plaintiff's cell phone extraction and that an inference was warranted that Defendant Palmer's “involvement in the search and seizure of [Plaintiff's] phone contents exceeded any consent she gave to any party.” Id. at 8–9.
On March 22, 2023, this Court denied Plaintiff's motion and declined to impose sanctions on Defendant Palmer. ECF 148 at 10. Specifically, this Court held that Defendant Palmer took no actions to destroy the cell phone extraction, as it was Defendant Carpenter, and not Defendant Palmer, who deleted the extraction. Id. This Court likewise found that Defendant Palmer had no reason to anticipate this litigation and therefore could not be found to have acted with intent to deprive Plaintiff of the information. Id. Finally, this Court found that the information contained in the extraction could be obtained through additional discovery, such that Plaintiff was not prejudiced by its deletion. Id.
DISCUSSION
Defendants seek attorney's fees related to both Defendants’ Motion to Compel and Plaintiff's Motion for Adverse Inference. This Court discusses each basis for fees in turn.
A. Fees Related to Defendants’ Motion to Compel
Defendants first seek attorney's fees related to this Court's partial grant of Defendants’ Motion to Compel. A court that grants a motion to compel under Federal Rule of Civil Procedure 37 must, “after giving an opportunity to be heard,” require the opposing party, her attorney, or both “to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). The award of attorney's fees is mandatory unless the court finds that the opposing party's position was “substantially justified” or that “other circumstances make an award of expenses unjust.” Id. The burden of establishing this substantial justification or special circumstances rests on the party being sanctioned. See Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994). The purpose of this rule is “to protect courts and opposing parties from delaying or harassing tactics during the discovery process.” Cunningham v. Hamilton Cnty. Ohio, 527 U.S. 198, 208 (1999).
Plaintiff asserts that “[i]t was substantially justified for Plaintiff to attempt to protect herself against ongoing privacy intrusions by objecting to Defendants’ request that she provide all of her communications with her romantic partner and communications where privilege may apply.” ECF 152 at 2. Plaintiff further asserts that, following this Court's order that Plaintiff produce all remaining, non-deleted, and responsive communications as requested by Defendants, Plaintiff “promptly complied with the Court's order” such that sanctioning Plaintiff for making her initial objections would be unjust. Id.
*4 Although this Court ultimately rejected Plaintiff's reasons for objecting to the production of messages between her and Deputy Smith, this Court nonetheless finds that Plaintiff was substantially justified in raising those objections. An objection to a motion to compel is substantially justified where “reasonable people could differ as to whether the party requested must comply.” Reygo Pac. Corp. v. Johnston Pump Co., 680 F.2d 647, 649 (9th Cir. 1982); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (noting that “substantially justified” “has never been described as meaning ‘justified to a high degree’ but rather has been said to be satisfied if there is a ‘genuine dispute’ ” between the parties).
This Court is persuaded that Plaintiff had sincere privacy concerns that motivated her objections to producing intimate communications between her and her romantic partner. ECF 152 at 2. This Court notes that the underlying facts of this case involve Plaintiff's personal cell phone, which included intimate photos, messages, and other information of a highly personal nature. ECF 154 at ¶ 2, 4. This Court likewise notes that this litigation took place within a small community wherein all parties involved knew and had personal histories with one another. Id. at ¶ 2; see also ECF 94 at ¶ 26; ECF 70 at 16. Finally, this Court notes that while Plaintiff was unable to produce evidence to survive a motion for summary judgment, Plaintiff's complaint was based on allegations that Defendants improperly shared her personal communications and photos throughout the community. ECF 94 at ¶¶ 9–15, 33. Given this context, this Court finds that Plaintiff's privacy objections were substantially justified in that reasonable people could differ on the appropriateness of the outcome.[1]
This Court likewise finds that Plaintiff was substantially justified in raising a privilege objection to the requested material. In response to Defendants’ Motion to Compel, Plaintiff's counsel stated in a declaration that “[i]n conferral, Defense Counsel ... argued that communications between Ms. Olson and Mr. Smith may waive attorney-client privilege entirely if they reference attorney impressions or advice.” ECF 71 at ¶ 10. Given Defense Counsel's representations that disclosure of certain communications between Plaintiff and Deputy Smith would be treated as a broad waiver of attorney-client privilege, this Court finds that Plaintiff's counsel was substantially justified in making objections based on attorney-client privilege, even if those objections were not ultimately meritorious.
*5 Finally, this Court finds that ordering attorney's fees in response to Plaintiff's deletion of text messages would be inappropriate as this Court has already sanctioned Plaintiff's actions by granting Defendants an adverse inference. ECF 87 at 4–5. This Court acknowledges that it has inherent authority to order attorney's fees for spoliation of evidence upon a finding of bad faith. Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997). This Court likewise acknowledges its earlier finding that Plaintiff “acted with intent to deprive Defendant of the information with respect to the messages erased after the initiation of litigation.” ECF 87 at 3. Nonetheless, this Court finds that an award of attorney's fees would be disproportionate to the harm caused by Plaintiff's actions considering this Court's order of an adverse inference in Defendants’ favor. See Imagenetix, Inc. v. Robinson Pharma, Inc., No. SA CV 15-0599 JLS (JCGx), 2017 WL 8940118, at *4 (C.D. Cal. Feb. 13, 2017), report and recommendation adopted as modified, 2017 WL 570708 (Feb. 13, 2017) (recommending no award of attorney's fees “in light of the adverse inference instruction already recommended.”).
B. Fees Related to Plaintiff's Motion for Adverse Inference
Defendants next move for attorney's fees related to Plaintiff's Motion for Adverse Inference, ECF 123, which this Court ultimately denied. This Court has inherent authority to order attorney's fees as sanctions for conduct by counsel that amounts to bad faith. Primus Auto. Fin. Servs., Inc., 115 F.3d at 648–49. A finding of bad faith is warranted where an attorney “knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent.” In re Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 436 (9th Cir. 1996) (citation omitted).
This Court does not find that Plaintiff's counsel acted in bad faith in seeking an adverse inference against Defendant Palmer. The question of whether Defendant Palmer actually possessed Plaintiff's cell phone extraction was one that was vigorously contested by the parties through various stages of this litigation. While this Court ultimately held that Plaintiff had failed to produce admissible evidence that Defendant Palmer ever possessed Plaintiff's cell phone extraction, ECF 148 at 19–20, this Court cannot say that Plaintiff's counsel acted in bad faith by pressing that argument prior to this Court's findings at the motion for summary judgment stage. See Primus Auto. Fin. Servs., Inc., 115 F.3d at 649 (stating that sanctions “should be reserved for the rare and exceptional case where the action is clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose.”) (citation omitted).
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Imposition of Fees, ECF 150, is DENIED.
IT IS SO ORDERED.

Footnotes

This Court notes that Plaintiff's counsel has stated, in a sworn declaration filed with this Court, that during conferral Defense counsel “continued to email and ask for phone calls, pressuring me to force Plaintiff to change her position, becoming emotional, raising his voice, and using disparaging language regarding Plaintiff.” ECF 153 at ¶ 3. Plaintiff's counsel also stated in her declaration that Defense counsel “called [Plaintiff's] private images ‘nudie pics.’ ” Id. Defense counsel, for his part, denies that he raised his voice in emotion or anger at Plaintiff's counsel. ECF 156 at ¶ 2. This Court takes no position on the veracity of these statements, but notes that conferral between the parties appears—based on this Court's own review of various exhibits as well as the tone of the parties’ briefing itself—to have been a contentious process over messages that contained private and personal information. See ECF 154 at ¶ 4 (describing the messages as containing “pictures of [Plaintiff and Deputy Smith's] kids” as well as “sexual conversations”). Against this backdrop, this Court reiterates that it finds Plaintiff's privacy concerns substantially justified, even if the private messages should have been produced subject to an attorneys’ eyes-only provision. See ECF 67 at 3.