19 Trial Lawyer • Winter 2024 focused on presenting a compelling case for the jury. These cases are sometime called “complex,” but we think that is a framing better suited to defendants. Every case is, at its core, about people — someone did something to somebody. In PacifiCorp’s case, it burned down communities, destroyed evidence and refused to take responsibility. Discovery issues and sanctions Many of our pretrial motions involved PacifiCorp’s attempts to hide damaging evidence during discovery. When the defendants in your cases fail to comply with the rules of discovery and discovery orders, you should think about how to respond with an eye toward trial. There are often many more discovery violations by defendants than the trial court has time to address. Before moving to compel, a good question to ask yourself is whether the evidence that is being withheld is important for trial. The fight for PacifiCorp to comply with its discovery obligations and Judge Alexander’s discovery orders had been going on for years. The dispute centered on whether PacifiCorp could hide what it knew about how and where the fires started. In July 2022, the court ordered PacifiCorp to produce materials relating to these issues. PacifiCorp had been withholding this evidence in document discovery and during depositions by claiming attorney client privilege and attorney work product. PacifiCorp continued to withhold documents and obstruct depositions, so we moved for another order compelling discovery and sanctions for violating the prior order. The court made the scope of allowable cause and origin discovery clear to the parties. Nevertheless, PacifiCorp put on witnesses during ORCP 39 C(6) depositions of the corporation who were unprepared to testify about the cause and origin evidence known to the corporation. Our pretrial discovery motions practice laid the foundation for another motion to sanction that Judge Alexander decided right before trial. About one month before trial, we learned that on Labor Day 2020, Governor Kate Brown’s office had initiated a phone call with representatives from PacifiCorp and PGE, Oregon’s two largest privately owned power companies. The governor’s office, like PacifiCorp and anyone else watching the weather forecast, was concerned about power lines starting fires during the Labor Day windstorm. By the time of the call, PacifiCorp had already started at least one major fire. Despite this and all the information known to PacifiCorp about the fire danger, it had no plans to take proactive measures to prevent other fires from starting in the communities at issue in our case. It is not every day that the Governor’s chief of staff and the Oregon Department of Forestry’s chief of fire protection get executives from power companies on the See Motions in Large Trials 20
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