United States District Court, D. Oregon
KRISTEN L. TRANETZKI EDWARD A. PIPER Angeli Law Group LLC
Attorneys for Plaintiff
J. DUNBAR Larkins Vacura LLP Attorneys for Defendant Cynthia
JEFFREY M. EDELSON HEATHER ST. CLAIR Markowitz Herbold PC
Attorneys for Defendant Christine Guidera
OPINION AND ORDER
J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE.
matter comes before the Court on Defendant Cynthia
Gladen's Motion (#37) for Protective Order and Motion
(#37) to Quash Subpoena. For the reasons that follow, the
Court GRANTS Gladen's Motion to Quash
and DENIES as moot Gladen's Motion for
following facts are taken from Plaintiff's Complaint,
Defendants' Answers, and the parties' filings related
to Defendants' Motions.
Defendant Cynthia Gladen was married to Kenneth
Kolarsky. Kolarsky was having an affair at that time
with Plaintiff Lori Bokenfohr, an attorney who lived and
practiced law in Canada.
alleges in her Complaint that in 2015 she owned a laptop
computer on which she stored "a broad range of personal
and confidential information" including Plaintiff's
banking, financial, and tax records; Plaintiff's medical
records as well as the medical records of her children; and
Plaintiff's "private photo albums." Compl. at
¶ 12. Defendants assert, and Plaintiff does not appear
to contest, that Plaintiff also stored confidential client
information on the laptop.
2015 Kolarsky purchased a solid-state computer drive (SSD) or
"flash drive." In August 2015 Kolarsky "gave
[the SSD] as a gift to Plaintiff." Plaintiff intended to
use the SSD to create a back-up copy of the contents of her
point before November 2015 Plaintiff asked Kolarsky to copy
the information from Plaintiff's laptop to the SSD.
Kolarsky tried to do so, but the."attempt appeared to
fail, following which Kolarsky reformatted the SSD."
Compl. at ¶ 14. Kolarsky and Plaintiff believed the
reformatting process permanently deleted whatever information
might have been partially copied from Plaintiff's laptop
to the SSD. Plaintiff and Kolarsky were mistaken, however,
and some of Plaintiff's personal information including
"intimate images depicting Plaintiff and Kolarsky in bed
and unclothed . . . were capable of being recovered from the
SSD." Compl. at ¶ 15. Plaintiff left the SSD with
Kolarsky so he could attempt to install a new operating
system on the SSD.
November 18, 2015, Kolarsky traveled to Canada to visit
Plaintiff and brought the SSD. On November 22, 2015, Kolarsky
returned to Oregon and, while Kolarsky coached their
child's hockey game, he left his luggage in the car owned
by Kolarsky and Gladen. During the hockey game Gladen removed
"certain items" from the family car "without
Kolarsky's (or plaintiff's) knowledge or
consent." Compl. at ¶ 16. Gladen, however, denies
removing the SSD from the car at that time.
also alleges in her proposed First Amended Answer that in
January 2016 she "found the flash drive in her home and
she believed the flash drive belonged to the family."
Gladen Proposed Am. Answer at ¶ 56. Gladen also alleges
in her proposed First Amended Answer that she could not open
the SSD on her personal computer. Gladen, therefore, took the
SSD and her personal computer to Office Depot for technical
assistance. The Office Depot employee was able to restore the
SSD by using Gladen's personal computer, which resulted
in the uploading of images from the SSD to Gladen's
"electronic accounts, including Google Photos, [that]
ran through [Gladen's] personal computer and were
accessible to her devices." Gladen Answer at ¶ 18.
Among the uploaded photographs were images of Plaintiff with
Kolarsky "in bed and with no clothing visible,"
some of which "were taken in [Gladen's] home."
Gladen Proposed Am. Answer at ¶ 33; Answer at ¶ 33.
Gladen was upset by the images and sent "images of
plaintiff and [Kolarsky], sometimes in bed with no clothing
visible, to [Defendant Christine] Guidera" as well as
"an image or two to a small number of friends after
seeing them." Gladen Answer at ¶ 33. Guidera admits
in her Answer that she received "electronic photographic
images from Gladen." Guidera Answer at ¶ 6.
February 2016 Gladen filed separation papers against
2016 Gladen gave the SSD to Kolarsky as part of their divorce
proceedings. Plaintiff alleges in her Complaint that Gladen
wrongfully continued to retain copies of the images. Gladen
admits she and her attorneys still possess copies of the
images, but she notes Plaintiff's "lawyers demanded
in 2016 and again in 2017 that [Gladen] must preserve these
images." Gladen Answer at ¶ 3.
alleges in her Complaint that on June 16, 2016, Guidera
"sent a series of unsolicited Facebook messages to a
woman who then was one of Kolarsky's professional
colleagues. The messages contained an Intimate Image
depicting Plaintiff and Kolarsky in bed and unclothed."
Compl. at ¶ 20. Guidera alleges in her Answer that she
sent "a private message to Shanta Roberts via Facebook
Messenger, including a G-rated photograph of plaintiff and
[Kolarsky]." Guidera Answer at ¶ 6. In addition,
Guidera asserts in her Answer that she "did not send any
graphic or indecent photographs." Guidera Answer at
November 21, 2017, Plaintiff filed a Complaint in this Court
against Gladen and Guidera in which she brings claims for (1)
violation of the Computer Fraud and Abuse Act (CFAA), 18
U.S.C. § 1030, against Gladen; (2) violation of Oregon
Revised Statutes § 30.865(1)(d) against both Defendants;
conversion against both Defendants; replevin against both
Defendants; and intrusion upon seclusion against both
Defendants. Plaintiff seeks compensatory and punitive damages
or in the "alternative to an award of compensatory
damages reflecting the full value of Plaintiff s Personal
Information (but not other compensatory damages), an order of
replevin requiring Defendants to identify and return all of
Plaintiff's Personal Information" and/or in the
"alternative to an award of compensatory damages
reflecting the full value of Plaintiff's Personal
Information (but not other compensatory damages), an order
imposing a constructive trust for Plaintiff's benefit on
all of her Personal Information . . . that is in either
Defendant's [sic] direct or indirect possession,
custody, or control." Compl. at 13.
January 17, 2018, Gladen filed an Answer, Affirmative
Defenses, and Counterclaim in which she asserts affirmative
defenses of unclean hands, in pari delicto,
ownership, abandonment, privilege, standing, consent, waiver,
and unconstitutionality. Gladen also asserted a Counterclaim
for declaratory judgment.
January 17, 2018, Guidera filed an Answer and
Counterclaim to Plaintiff's Complaint in which she
asserted affirmative defenses of failure to state a claim,
waiver, consent, abandonment, interest of Defendant Gladen,