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Bokenfohr v. Gladen

United States District Court, D. Oregon

August 22, 2019

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 (#121) for Partial Summary Judgment. The Court concludes the record is sufficiently developed, and, therefore, oral argument is not required to resolve this Motion.

         For the reasons that follow, the Court GRANTS Gladen's Motion.

         BACKGROUND

         Because the parties are familiar with the facts underlying this action, the Court sets forth only the facts taken from the parties' filings related to Gladen's Motion that are relevant to the pending Motion.

         In 2015 Defendant Cynthia Gladen was married to Kenneth Kolarsky.[1] Kenneth 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 her banking, financial, and tax records; her medical records and the medical records of her children; and her “private photo albums.” Compl. at ¶ 12.

         In July 2015 Kolarsky purchased two solid-state computer drives (SSD) or “flash drives.”[2] Kolarsky purchased the SSDs with a “family credit card, ” but he intended one of the SSDs to be a gift for Plaintiff. Plaintiff alleges she intended to use the SSD to create a back-up copy of the contents of her laptop.

         In mid-October 2015 Plaintiff asked Kolarsky to copy the information from Plaintiff's laptop to the SSD. Kolarsky tried to do so, but his “attempt appeared to fail, following which Kolarsky reformatted the SSD.” Compl. at ¶ 14. Kolarsky and Plaintiff believed the reformatting process permanently deleted any information that might have been copied from Plaintiff's laptop to the SSD. Plaintiff and Kolarsky were mistaken, however, and “[a]lthough information was not readily accessible, the backup of [Plaintiff's] computer on the [SSD], including the photos [at issue in this action] remained and could be recovered and restored by a computer vendor.” Am. Joint Statement of Agreed Facts at ¶ 4. Kolarsky retained possession of the SSD after the attempted backup and kept the SSD at the home he shared with Gladen.

         The parties dispute precisely where and when Gladen found the SSD at issue. The record reflects Gladen found the SSD in either her family car or in her family home. This factual dispute, however, is immaterial to resolution of the Motion now before the Court.

         At some point Gladen attempted to open the SSD, but she could not open or read anything on 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 some of the information on the SSD. In late January 2016 Gladen returned to Office Depot to have the files restored, and “certain information was restored from the drive [and a] copy of the [SSD] was made onto an external hard drive.” Am. Joint Statement of Agreed Facts at ¶ 8.

         On January 23, 2016, Home Depot “completed its restoration work” on the SSD. Am. Joint Statement of Agreed Facts at ¶ 11. As a result of the restoration “Gladen saw photographs and other data copied from the [SSD].” Am. Joint Statement of Agreed Facts at ¶ 11.

         On November 21, 2017, Plaintiff filed a Complaint in this Court against Gladen and Christine Guidera in which she brought claims against Gladen for violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030; against both Defendants for violation of Oregon Revised Statutes § 30.865(1)(d); against both Defendants for conversion; against both Defendants for replevin; and against both Defendants for “intrusion upon seclusion.”

         On February 21, 2019, Gladen filed a Motion for Partial Summary Judgment as to all of Plaintiff's claims except for her First Claim for violation of CFAA against Gladen. Also on February 21, 2019, Guidera filed a Motion ...


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