Peterson v. Porter, et al

Filing 92

ORDER: Defendants may proceed with discovery as to the specific subjects concerning Sarre and McIntosh, as stated in this order. Signed on 6/19/18 by Magistrate Judge Paul Papak. (gm)

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THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
CHRISTOPHER SCOTT PETERSON,
No. 3:16-cv-01955-PK
Plaintiff,

v.

ORDER

WILLIAM BRYAN PORTER, et al.,
Defendants.
PAPAK, Magistrate Judge:

Plaintiff CIU'istopher Peterson brings this action against Defendants William Porter and
Dr. Ronald Teed, asserting claims under 42 U.S.C. § 1983 for malicious prosecution and
violation of substantive due process rights; intentional interference with business relations; and
intentional infliction of severe emotional distress. Third Am. Comp!., ECF No. 65. Plaintiff, a
general contractor, alleges that while working on a remodeling project for Defendant Teed, Teed

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demanded that Plaintiff rewrite their contract, charging half the amount Teed had agreed to pay
Plaintiff. Plaintiff alleges that when he refused to agree to accept half the agreed amount, Teed
conspired with Defendant Porter, the Tillamook County District Attorney, to fabricate aggravated
theft charges against Plaintiff. After the jury acquitted Plaintiff on all charges, he brought this
civil rights action against Teed and Pmier. This couti has granted Porter's motion to dismiss
Plaintiffs claims as to Porter's post-indictment conduct, based on absolute immunity, while
denying the motion to dismiss as to Pmier's pre-indictment conduct. Opinion and Order, ECF
No. 56.
Based on Plaintiffs deposition testimony, Defendants now argue that Plaintiff has
voluntarily waived the attorney-client privilege as to two attorneys who defended Plaintiff in the
criminal prosecution, Jonathan Sarre and Dawn Mcintosh, 1 and an attorney who represented
Plaintiff in a separate civil matter, John Tuthill. In addition, Pmier's attorney, Craig Johnson,
has obtained documents Plaintiff had submitted to the Oregon State Bar (OSB) regarding
Plaintiffs professional misconduct complaint to OSB against Pmier.
The pmiies now informally request this court to resolve their disputes over the allegedly
privileged documents. I constrne Defendants' requests as a motion to compel. For the following
reasons, I grant the motion in pati as to Sarre and Mcintosh, and deny it as to Tuthill.
DISCUSSION
I agree with the parties that Plaintiff has waived his attorney-client privilege as to the 80plus pages of documents he submitted to the OSB, which include documents related to Sarre's

1

Sarre represented Plaintiff for about a year staiting in September 2011. Mcintosh then
represented Plaintiff before withdrawing for personal reasons in early 2014. Another attorney
represented Plaintiff at the criminal trial, which concluded in November 2014 with Plaintiffs acquittal.
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and Mcintosh's criminal defense of Plaintiff. Because Plaintiff waived his attorney-client
privilege as to these documents, I grant Defendants' request for documents related to Plaintiffs
alleged original invoices and receipts for the Teed remodeling project, and to Sarre's alleged loss
of those original records. I also grant Defendants' request for documents related to Mcintosh's
decision to retain a forensic accountant to assist in Plaintiffs criminal defense, and for
spreadsheets allegedly prepared by Plaintiff to aid Mcintosh.
Defendants also seek discove1y related to Plaintiffs representation by attorney Tuthill.
Plaintiff apparently sought advice from Tuthill regarding alleged embezzlement of more than
$100,000 by Plaintiffs former business paitner. Plaintiff testified at his deposition about Tuthill.
I did not find documents related to Tuthill in the OSB documents.
Counsel for Teed contends that evidence concerning Tuthill is relevant because of
Tuthill's alleged decision not to represent Plaintiff in the dispute with Teed. Counsel for Poiter
contends that evidence concerning Tuthill is relevant because Plaintiff alleges that Teed
pressured Tuthill not to represent Plaintiff in Teed's dispute with Plaintiff, and that Tuthill chose
not to pursue criminal charges against Plaintiffs former partner.
Plaintiff responds that Tuthill' s representation of him is not relevant to this litigation, and
that he will not be presenting evidence on Tuthill' s alleged decision not to represent him in an
action against Teed. I agree with Plaintiff that documents regarding Tuthill are not relevant to
the issues in this action. I also find that evidence about Tuthill's dealings with Plaintiff would
tend to confuse the jmy. I deny the motion to compel as to documents related to Tuthill.
CONCLUSION
Defendants may proceed with discove1y as to the specific subjects concerning Sarre and

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ORDER

and Mcintosh, as stated in this order.
IT IS SO ORDERED.
Dated this

tl_+'&iy of June :,,....,._

norable Paul Papak
United States Magistrate Judge

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ORDER