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Markstrom v. Guard Publishing Co.

Court of Appeals of Oregon

October 10, 2018

Serena MARKSTROM, Plaintiff-Appellant,
v.
GUARD PUBLISHING COMPANY, an Oregon corporation, dba The Register Guard, Defendant-Respondent.

          Argued and submitted December 5, 2017

          Lane County Circuit Court 15CV23028; Josephine H. Mooney, Judge.

          Matthew E. Malmsheimer argued the cause for appellant. Also on the briefs were Christopher Lundberg and Haglund Kelley LLP.

          Steven M. Wilker argued the cause for respondent. Also on the brief was Tonkon Torp LLP.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary: Plaintiff appeals a general judgment of dismissal, which the trial court entered as a sanction for spoliation of evidence-specifically, destruction of plaintiff's emails and text messages. Even though plaintiff destroyed most or all of the material in question before fling her cause of action, the trial court ultimately concluded-relying on ORCP 46 D, a rule governing sanctions for discovery violations, and related case law, namely Pamplin v. Victoria, 319 Or. 429, 877 P.2d 1196 (1994)-that, because plaintiff knew when she destroyed the emails and text messages that "litigation was reasonably foreseeable," she acted willfully and dismissal of her case was a "just" sanction. Held: Assuming, without deciding, that ORCP 46 D and Pamplin applied to the trial court's ruling, the Court of Appeals concluded that the trial court's dismissal sanction was not supported by the considerations set out in Pamplin for the court to properly exercise its discretion in that manner.

         Reversed and remanded.

          [294 Or.App. 339] ORTEGA, P. J.

         Plaintiff appeals a general judgment of dismissal, which the trial court entered as a sanction for spoliation of evidence-specifically, destruction of plaintiffs email and text messages. Even though plaintiff deleted most or all of the material in question before filing her cause of action, the trial court ultimately concluded-relying on ORCP 46 D, a rule governing sanctions for discovery violations, and related case law, namely Pamplin v. Victoria, 319 Or. 429, 877 P.2d 1196 (1994)-that, because plaintiff knew when she destroyed the emails and text messages that "litigation was reasonably foreseeable," she acted willfully and that dismissal of her case was a "just" sanction. Assuming, without deciding, that ORCP 46 D and Pamplin apply to the trial court's ruling, we conclude that the trial court's dismissal sanction was not supported by the considerations set out in Pamplin for the court to properly exercise its discretion in that manner. Therefore, we reverse the order of dismissal.

         The following facts found by the trial court are supported by the record. Plaintiff worked for defendant for about 12 years. In 2012, after she moved into a position in the newsroom, "several concerns [were] raised about her work in the first eight to nine months." Plaintiff took time off in September 2013 and, upon returning to work, she "was reprimanded and received follow-up on continuing concerns about her work." A month later, plaintiff notified her supervisor that she was pregnant. Work issues continued, and she was placed on a "performance improvement plan" in December 2013. Plaintiff, through her union representative, sent defendant a notice of grievance alleging "violations of her rights under the collective bargaining agreement as well as claims of discrimination, disparate treatment, and hostile work environment."

         In February 2014, based on her doctor's recommendation, plaintiff took early medical leave because her doctor believed that her work environment was affecting her pregnancy. As a result, plaintiff's supervisor took over her assignments and informed her that she could not do any work while on leave, "including checking her email and voicemail." Plaintiff ignored that directive and, in March, [294 Or.App. 340] attempted to access her email account but realized that her password had been changed. Plaintiff texted her union representative and then obtained access to the account from a person in defendant's IT department. With the assistance of her union representative, plaintiff began "double-deleting" her emails so that her supervisor could not trace the emails she was saving to her personal account.[1] Plaintiff was locked out of her email account again but obtained access a second time using the same method of bypassing her supervisor. Her supervisor noticed that she had accessed her work email and had deleted some messages.

         Defendant requested a meeting with plaintiff in March 2014 to inquire about why she had accessed her email account and to discuss a potential severance agreement. Plaintiff, through her union representative, refused to agree to a severance, and she was terminated for insubordination, dishonesty, and destruction of evidence and company property. She hired an attorney later that year and filed her cause of action in August 2015.

         Through a discovery request, defendant became aware that text messages between plaintiff and her union representative were not disclosed-specifically, messages between 2010 and 2013. It is unclear from the record at what point plaintiff began deleting the text messages, though she admitted that she had in fact deleted some messages. Defendant moved for sanctions for spoliation of evidence, asking the court to dismiss plaintiff's cause of action with prejudice on the theory that she had a duty to preserve those emails and text messages because she knew or had a reason to know that litigation was likely at the time she deleted them. Defendant cited ORCP 46 D as the source of the court's authority to impose such a sanction, and further relied on federal case law and FRCP 37 to argue that plaintiffs actions were equivalent to destruction of evidence during litigation justifying the sanction of dismissal.

         Without addressing the court's authority to impose a sanction under ORCP 46 D, plaintiff responded that the court should not dismiss her case because her actions were [294 Or.App. 341] not willful or in bad faith and there was no evidence that defendant was prejudiced by her actions. Plaintiff asserted that all of the emails and text messages were recoverable and that if there was evidence that could not be located, in order to "balance defendant's harm from the missing evidence against [plaintiff's] right to have this case decided on the merits," the remedy should be an adverse instruction. At a pretrial hearing, ...


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