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Bokenfohr v. Gladen

United States District Court, D. Oregon

July 10, 2018

LORI BOKENFOHR, Plaintiff,
v.
CYNTHIA GLADEN and CHRISTINE GUIDERA, Defendants.

          KRISTEN L. TRANETZKI EDWARD A. PIPER Angeli Law Group LLC Attorneys for Plaintiff

          JOHN J. DUNBAR Larkins Vacura LLP Attorneys for Defendant Cynthia Gladen

          JEFFREY M. EDELSON HEATHER ST. CLAIR Markowitz Herbold PC Attorneys for Defendant Christine Guidera

          OPINION AND ORDER

          ANNA J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE.

         This 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 Protective Order.

         BACKGROUND

         The following facts are taken from Plaintiff's Complaint, Defendants' Answers, and the parties' filings related to Defendants' Motions.

         In 2015 Defendant Cynthia Gladen was married to Kenneth Kolarsky.[1] Kolarsky was having an affair at that time with Plaintiff Lori Bokenfohr, an attorney who lived and practiced law in Canada.

         Plaintiff 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.

         In July 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 laptop.

         At some 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.

         On 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.

         Gladen 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.

         In February 2016 Gladen filed separation papers against Kolarsky.

         In June 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.

         Plaintiff 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 ¶ 6.

         On 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.

         On 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.

         On January 17, 2018, Guidera filed an Answer and Counterclaim[2] to Plaintiff's Complaint in which she asserted affirmative defenses of failure to state a claim, waiver, consent, abandonment, interest of Defendant Gladen, ...


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