Olson v. Grant Cnty.
Olson v. Grant Cnty.
2022 WL 20138736 (D. Or. 2022)
March 15, 2022

Immergut, Karin J.,  United States District Judge

Text Messages
Sanctions
Failure to Preserve
Protective Order
Failure to Produce
Mobile Device
Scope of Preservation
Adverse inference
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Summary
The court found that Plaintiff failed to take reasonable steps to preserve ESI, resulting in the deletion of communications between Plaintiff and Tyler Smith from February 2019 to May 2020. The court granted Defendants an adverse inference and reserved ruling on the sanction of attorney's fees until Plaintiff has had an opportunity to be heard.
Additional Decisions
HALEY OLSON, Plaintiff,
v.
GRANT COUNTY, a government entity, GLENN PALMER, JIM CARPENTER, ZACH MOBLEY, and ABIGAIL MOBLEY, individuals, Defendants
Case No. 2:20-cv-01342-IM
United States District Court, D. Oregon
Filed March 15, 2022
Immergut, Karin J., United States District Judge

ORDER

*1 On October 28, 2021, Defendants Grant County and Glenn Palmer[1] filed a Motion to Compel and Request for Sanctions. ECF 67. Plaintiff responded on November 8, 2021. ECF 70. On December 17, 2021, Defendants replied in support of their motion. ECF 80.
Defendants requested production of “[a]ll written messages of and between [P]laintiff and Tyler Smith from January 2019 to February 25, 2021.” ECF 67 at 3. Plaintiff responded that the request was “overbroad, unduly burdensome, redundant of other requests, and not proportional to the needs of the case.” Id. Although Plaintiff stated that, without waiving the objections, she would provide “responsive non-privileged documents,” she only produced a single, undated page, which overlapped with material already provided in response to another request for production. Id. Through conferral, Defendants learned that Plaintiff did not provide records from February 2019 to May 2020, a fifteen-month period, because they were deleted. Id. at 4.
Plaintiff contends that some communications were provided; some are not in Plaintiff's possession, custody, or control after a reasonable search; some are not discoverable on the grounds of relevance, privacy, overbreadth, burden, and proportionality; and others are protected by the attorney-client and common interest privileges. ECF 70 at 3–5.
A. Deleted Communications
Federal Rule of Civil Procedure 37(e) deals with “electronically stored information that should have been preserved in the anticipation or conduct of litigation” that “a party failed to take reasonable steps to preserve” and which “cannot be restored or replaced through additional discovery.” If the other party will be prejudiced by the loss of the information, the court may “order measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). More severe measures—either an adverse inference or dismissal of the action—are appropriate “only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation.” Fed. R. Civ. P. 37(e)(2). Given that the communications were between Plaintiff and the party with whom she allegedly conspired to harm Defendants, ECF 67 at 5–6; ECF 80 at 3, this Court finds that Defendant suffered prejudice from their deletion.
Plaintiff contends that the deleted communications were erased due to “reasonable, routine storage setting”, ECF 70 at 8; ECF 72 at ¶ 8, and that when she bought a new phone in September 2019 she “wiped” or “reset” her old phone causing information to be destroyed, ECF 81-2, Ex. 10, at 8–9. But Plaintiff admitted at her deposition that she had been able to successfully transfer photos from an old phone to a new phone in the past when she wanted to preserve the photos. ECF 81-1, Ex. 9, at 13. Plaintiff also knew that “resetting” a phone would result in the loss of information. ECF 81-2, Ex. 10, at 8–11. And Plaintiff's declaration related to this motion reveals that she consciously chose the storage settings on her phones, purportedly “to save storage by not storing text messages.” ECF 72 at ¶ 8.
*2 Defendant points out that the deleted messages cover “the entirety of the underlying events in this [case] and beyond when [P]laintiff filed this lawsuit.” ECF 67 at 4. Plaintiff filed her original complaint in April 2020, ECF 1-1 at 3, which means that one month's worth of messages was deleted after the initiation of litigation. Even before filing the lawsuit, Plaintiff was aware in either March, April, or August of 2019 that Tyler Smith was being investigated in conjunction with Plaintiff's arrest in Idaho. ECF 81-1, Ex. 9, at 5–7. Even so, Plaintiff continued to allow the messages to be deleted. This Court finds that Plaintiff acted with intent to deprive Defendant of the information with respect to the messages erased after the initiation of litigation. It may well be that routine storage settings were the mechanism by which the communications were deleted; however, Plaintiff could have altered those settings but chose not to, leading up to and after she filed this lawsuit. In the same vein, Plaintiff had every right to obtain a new phone even if she anticipated litigation; but Plaintiff also knew how to save information she wanted when transferring phones and should have done so here.
At this stage, this Court is not inclined to dismiss Plaintiff's case because she has turned over a plethora of other communications and there is an open question as to exactly when Plaintiff should have anticipated litigation.[2] However, this Court finds that Defendants are entitled to an adverse inference with respect to the deleted message and Defendant shall submit proposed language on such an inference.
B. Other Communications
As for the remaining, but unproduced, communications, this Court finds Plaintiff's reason for nondisclosure unavailing. ECF 70 at 17. Although Plaintiff may consider the messages between Plaintiff and Tyler Smith to be private, Plaintiff has cited no authority that this alone is grounds to withhold the information from opposing counsel. And, as noted above, the relationship between Plaintiff and Tyler Smith is central to Defendants’ theory of the case. Moreover, the documents would be turned over under an “attorneys-eyes-only” Protective Order. ECF 67 at 8.
Plaintiff's attorney-client and common interest privilege arguments fare no better. Neither Plaintiff nor Tyler Smith are attorneys, and Plaintiff has not shown that her communications with him were “confidential communications made for the purpose of facilitating the rendition of professional legal services.” O.R.S. 40.225(2). The common interest privilege, on the other hand, states that “whether the litigation or potential litigation is civil or criminal ... persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims.” United States v. Gonzalez, 669 F.3d 974, 978 (9th Cir. 2012) (quoting In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir. 1990)). The common interest privilege does not apply here, where Plaintiff and Tyler Smith are neither co-parties in any matter nor pursuing a common legal strategy in any matter. Rather, Plaintiff's attorney also represented Tyler Smith briefly, though there is no indication that the representation was related to any action in which Plaintiff was also involved, and Tyler Smith soon hired different counsel.[3] ECF 71 at ¶ 9. This Court reserves ruling on the sanction of attorney's fees until such a time that Plaintiff has had an opportunity to be heard on the issue. See Fed. R. Civ. P. 37(a)(5)(A).
CONCLUSION
*3 Defendants’ Motion to Compel and Request for Sanctions, ECF 67, is GRANTED IN PART. This Court ORDERS Plaintiff to produce any of the remaining communications consistent with this Order and subject to the parties’ stipulated protective order, ECF 24. Defendants are entitled to an adverse inference regarding the deleted communications and Defendants shall propose appropriate language for such an order. This Court reserves ruling on the sanction of attorney's fees and will contact parties separately to set a hearing date.
IT IS SO ORDERED.
DATED this 15th day of March, 2022.

Footnotes

Defendants Jim Carpenter, Zach Mobley, and Abigail Mobley are not moving defendants in this motion.
Plaintiff received legal advice as early as January 22, 2019, but she also stated that that advice was from a criminal defense attorney rather than her current counsel. ECF 81-2, Ex. 10, at 12. The portion of the deposition where Plaintiff discusses this legal advice is omitted from the exhibits provided in conjunction with this motion. Thus, this Court has no way of knowing whether Plaintiff was advised to delete or retain messages or whether Plaintiff discussed filing her own lawsuit. Even if it is unclear that Plaintiff anticipated this litigation, it is clear to this Court that the possibility of some litigation was apparent to Plaintiff in January 2019.
Plaintiff's attorney also represents that she, Plaintiff, and Tyler Smith entered into a “Common Interest Agreement” on October 30, 2020, though it is unclear whether Plaintiff's attorney represented Tyler Smith at that point. ECF 71 at ¶ 10. In any event, it is Ninth Circuit case law—not agreements between attorneys, clients, and third parties—that set the parameters of the common interest privilege.