Accusations of unethical conduct have been leveled against PacifiCorp in a lawsuit over the 2020 wildfires. Attorneys for the plantiffs in the suit charge the company with contact with fire survivors while concealing both the existance of the lawsuit and PacifiCorp’s adverse interests.
In a motion filed Oct. 7 in Jeanyne James, et al. v. PacifiCorp, attorneys for the plaintiffs said they had learned PacifiCorp investigators inappropriately interviewed multiple class members who were unaware of the suit, while defense counsel allegedly claimed to represent two class members who were also PacifiCorp employees.
The plaintiffs, represented by Edelson law firm, of Chicago, field the motion in Multnomah County Circuit Court to limit PacifiCorp’s communications with class members. It also seeks to compel PacificCorp to produce all records of class member interactions and asks for a court order barring the use of those records during trial.
PacifiCorp, represented by internal counsel and Los Angeles-based Hueston Hennigan LLP, opposed the motion Oct. 24, arguing there were no ethical or legal standards preventing its contact with class members. The response also noted that the conpany has already agreed to most of the plaintiffs conditions for class member contact and claimed a court order was unnecessary.
When asked for further comment, a PacifiCorp spokesperson said it is their policy not to offer statements regarding pending litigation.
An eight-week trial in the case is scheduled for April 24, 2023.
The $1.6 billion suit was filed Sept. 30, 2020, by survivors of the Santiam Fire, who claim PacifiCorp negligently contributed to the fire’s growth by failing to maintain or de-energize equipment during high-risk conditions. These are claims PacifiCorp denies. On May 23, 2022 the class of plaintiffs was expanded to include survivors of the Echo Mountain Complex, Obenchain, and 242 fires, which impacted thousands of Oregonians during September of 2020.
The class has also gained plaintiffs as lawsuits are consolidated, including two lawsuits filed in August and September by more than 180 insurance companies seeking a combined $60 million, a $37.9 million suit filed Sept. 7 by residential property owners impacted by the Santiam fires, and a Sept. 1 lawsuit by Freres Timber Inc. seeking $40 million for physical and economic losses. The cases were consolidated with Jeanyne James, et al. v. PacifiCorp by court orders in October.
When the class was expanded, it included numerous plaintiffs who were unaware of the lawsuit, termed “absent class members.” It is routine for plaintiffs’ attorneys to reach out to these absent members and inform them of the suit and the opportunity to become active participants, or to opt out of the litigation.
Once a class is defined, a defendant is barred from direct contact with plaintiffs, including absent members, as the class has legal representatives who are the appropriate points of contact.
On Oct. 6, plaintiffs’ attorneys learned during a deposition that a claims agent for PacifiCorp had been interviewing absent class members at the direction of defense counsel, without informing the interviewees of pending lawsuit.
According to a summary of the deposition, a PacifiCorp agent called at least three survivors of the 242 Fire between mid-September and early October to discuss fire damage. The 242 Fire burned more than 14,000 acres in Klamath County. The claims agent said the three individuals contacted PacifiCorp’s claims department to discuss damage caused by the fire, and she followed up by phone and email.
The agent said she asked questions including how they believed the fire started, then provided her interview notes to legal counsel for PacifiCorp. At no point were the trio advised of the lawsuit or the agent’s relation to defense counsel.
However, the agent said she disagreed with assertions that PacifiCorp’s interests in investigating the fires were contrary to the interests of fire survivors.
“I view my investigation and our investigation as something that is in search of the truth of the ignition of the fire and I think that’s what most people want,” read an unofficial transcript of the agent’s deposition included with the Oct. 7 motion.
She also said additional class member contacts had occurred, but she did not recall specific details and no other contacts were described in the deposition excerpt.
Court records also described two men who were PacifiCorp employees as well as class members. PacifiCorp allegedly concealed their status as wildfire survivors and later claimed the two were represented by Hueston Hennigan.
The plantiff’s attornies attempted to depose one of the employees in April, but Hueston Hennigan said the employee was too traumatized by the fires to be verbally deposed, offering written testimony instead. A May 12 email asking for clarification on whether or not the employee was a potential class member generated no response from PacificCorp’s counsel.
Two PacifiCorp workers were later scheduled for deposition in August and at that time Hueston Hennigan disclosed both employees were class members, yet the firm still intended to prepare them for the deposition. When Edelson asked PacifiCorp counsel to cease all communications with these employees, Hueston Hennigan asserted both were “represented parties.”
Defense counsel cited laws around the rights of corporations to provide representation for employees when the corporation is held liable for wrongdoing committed by an employee. But Edelson said the employees in question are not accused of wrongdoing and defense counsel had provided no legitimate grounds to continue representation.
“The actions of PacifiCorp’s counsel raise serious ethical concerns that we must address immediately,” said Edelson in an Sept. 4 email to Hueston Hennigan.
Edelson said these “misleading” interactions with class members have caused unknown harm and asked the court to restrict PacifiCorp counsel and all PacifiCorp representatives from communicating with class members regarding the substance of the lawsuit.
They also asked that PacifiCorp reach out to all class members with whom they have had improper contact and explain the inappropriateness of their actions and the company’s adversarial legal position.
These allegations are the latest in a series of legal maneuvers that plaintiffs criticized as underhanded. A trial set for Aug. 15 was postponed after PacifiCorp challenged the broad definition of class members to the Oregon Court of Appeals in July. On Aug. 25 the challenge was rejected as meritless.
Then, on Aug. 15, PacifiCorp objected to the use of community groups in outreach to absent class members, arguing such entities would under-inform or misinform plaintiffs. Plaintiffs said this was an unfair mischaracterization of groups that have spent the last two years helping fire survivors. On Sept. 27 an outreach plan incorporating community groups was approved by the court.
