Bokenfohr v. Gladen et al
Filing
51
Opinion and Order. The Court GRANTS Gladen's Motion (# 37 ) to Quash Subpoena and DENIES as moot Gladen's Motion (# 37 )Protective Order. IT IS SO ORDERED. Signed on 7/10/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LORI BOKENFOHR,
Plaintiff,
3:17-cv-01870-BR
OPINION AND ORDER
v.
CYNTHIA GLADEN and
CHRISTINE GUIDERA,
Defendants.
KRISTEN L. TRANETZKI
EDWARD A. PIPER
Angeli Law Group LLC
121 S.W. Morrison Street
Suite 400
Portland, OR 97204
(503) 954-2232
Attorneys for Plaintiff
JOHN J. DUNBAR
Larkins Vacura LLP
121 S.W. Morrison St
Suite 700
Portland, OR 97204
(503) 222-4424
Attorneys for Defendant Cynthia Gladen
1 - OPINION AND ORDER
JEFFREY M. EDELSON
HEATHER ST. CLAIR
Markowitz Herbold PC
1211 S.W. Fifth Ave
Suite 3000
Portland, OR 97204
(503) 295-3085
Attorneys for Defendant Christine Guidera
BROWN, Senior 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
1
Kolarsky is not a party to this action.
2 - OPINION AND ORDER
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
being recovered from the SSD."
Compl. at
~
. were capable of
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
3 - OPINION AND ORDER
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."
Proposed Am. Answer at '[ 56.
Gladen
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."
'[ 33; Answer at '[ 33.
Gladen Proposed Am. Answer at
Gladen was upset by the images and sent
"images of plaintiff and [Kolarsky], sometimes in bed with no
4 - OPINION AND ORDER
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 i
33.
Guidera admits in her Answer that she
received "electronic photographic images from Gladen."
Answer at i
Guidera
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."
Answer at i
Gladen
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 i
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 i
6.
In addition,
Guidera asserts in her Answer that she "did not send any graphic
or indecent photographs."
5 - OPINION AND ORDER
Guidera Answer at i
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.
declaratory judgment.
6 - OPINION AND ORDER
Gladen also asserted a Counterclaim for
On January 17, 2018, Guidera filed an Answer and
Counterclaim2 to Plaintiff's Complaint in which she asserted
affirmative defenses of failure to state a claim, waiver,
consent, abandonment, interest of Defendant Gladen, absolute
privilege of consent, standing, unclean hands, and in pari
delicto.
On March 27, 2018, the Court signed the parties' Stipulated
Protective Order limiting the use and dissemination of
Plaintiff's private data, which is the subject of this action.
On May 4, 2018, Gladen filed a Motion (#37) for Protective
Order and Motion to Quash Subpoena relative to a Subpoena
Plaintiff issued to Kolarsky.
The Court took this matter under
advisement on June 1, 2018.
STANDARDS
Federal Rule of Civil Procedure 45 (d) (3) (A) (iii) requires
the Court "on timely motion" to quash a subpoena "that subjects a
person to undue burden."
When "considering a motion to quash a
subpoena duces tecum, the court must also consider whether the
subpoena 'is overly broad or seeking irrelevant information under
the same standards set forth in Rule 26(b) ."
2
R. Prasad Indus. v.
Although Guidera does not include affirmative defenses in
the title of her Answer, the Answer contains affirmative
defenses.
Guidera, however, does not include any counterclaims
in her Answer.
7 - OPINION AND ORDER
Flat Irons Envtl. Sols. Corp., No. CV-12-08261-PCT-JAT, 2014 WL
2804276, at *2 (D. Ariz. June 20, 2014).
Rule 26(b) provides:
Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any
party's claim or defense and proportional to the
needs of the case, considering the importance of
the issues at stake in the action, the amount in
controversy, the parties' relative access to
relevant information, the parties' resources, the
importance of the discovery in resolving the
issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.
Information within this scope of discovery need
not be admissible in evidence to be discoverable.
Thus, "a subpoena seeking completely irrelevant information might
be quashed as unduly burdensome."
Williams v. Khan, CV-17-
00029-TUC-BPV, 2018 WL 2240261, at *5 (D. Ariz. May 16, 2018)
(quotation omitted).
See also Goolsby v. Raney, 483 F. App'x
32 6, 32 9 (9th Cir. 2012) ("It was within the district court's
broad discretion over discovery to grant [the] motion to quash
discovery" because the materials sought "were properly deemed not
'relevant' for the purposes of Federal Rule of Civil Procedure
26(b) (1) -
that is, not 'reasonably calculated to lead to the
discovery of admissible evidence.'").
The district court has "broad discretion" to quash a civil
subpoena.
Goolsby, 483 F. App'x at 329.
See also Mattel, Inc.
v. Walking Mountain Prods., 353 F.3d 792, 813 (9th Cir. 2003)
(same) .
8 - OPINION AND ORDER
DISCUSSION
On April 24, 2018, Plaintiff provided notice to Defendants
that Plaintiff would serve a subpoena on Kolarsky seeking:
Any documents currently in your possession,
including but not limited to videotapes or other
video recordings, that you received from Gladen
and that further depict Gladen "in a state of
nudity" as that term is used in ORS 30.865,
provided that such materials were created at a
time when you were married to someone other than
Gladen, and further provided that you received
them following your separation from Gladen.
Deel. of John Dunbar, Ex. 1 at 4.
Gladen moves to quash the
Subpoena on the grounds that the materials sought are irrelevant
and inadmissible, the production of the evidence will lead to
disputes about collateral matters, and the evidence at issue will
humiliate Gladen.
I.
Gladen's Argument
According to Gladen, the materials that are the subject of
the Subpoena appear to be "nude images" taken of Gladen by
Kolarsky when he was married to his first wife in approximately
1993.
Specifically, Gladen testifies in her Declaration:
I do recall that, in 1993,
to his first wife[.]
[Kolarsky] was married
* * *
I do not recall whether [Kolarsky] took private
pictures of me before the termination of his first
marriage, or whether he did so afterwards.
In 1996, Kolarsky and I married. We were married
for over 20 years.
In February 2016 .
. I filed
for separation.
[I]n September 2017, the
9 - OPINION AND ORDER
divorce became final.
6. [Kolarsky] apparently says that after our
divorce, I gave him "materials" containing private
images of me taken during his first marriage
I never intentionally gave any such
images of myself to Kolarsky during our separation
or after our divorce.
Over the course of 2016 and
2017, as the divorce proceedings continued, we
divided up our household.
I gave various
possessions to Kolarsky, and I also left
possessions for Kolarsky at the house for him to
take away.
He had opportunities to take materials
from the house.
In 2016, after I filed separation
proceedings, Kolarsky also moved back into the
house .
. for three months and he had access to
the contents of the house.
I also discovered in
2016 that he was making use of built-in hiding
places he had previously installed in at least two
places in the house, where he hid things.
I
do not know if any hiding places were used to hide
pictures of me.
Kolarsky also removed some items
from the house without permission after the family
court granted me exclusive use of the house in
about June 2016.
7. I knew that Kolarsky had taken private images
of me on a small number of occasions during our
marriage.
In September 2017, I asked him to
delete them, in writing, and he assured me that he
would.
8. The images sought in the subpoena are deeply
embarrassing to me, and I respectfully ask the
Court for relief from the subpoena.
Deel. of Cynthia Gladen
~~
3-8.
As noted, Gladen asserts the images sought are embarrassing,
irrelevant to this action, and will not lead to the discovery of
admissible evidence.
Gladen also notes it is difficult to
understand how images taken approximately 25 years ago are
relevant to Plaintiff's claims.
10 - OPINION AND ORDER
In addition, Gladen asserts the
images are irrelevant to her defense of in pari delicto because
they were taken 25 years before the events at issue in this
matter and, therefore, are too remote and collateral to undermine
that defense.
Gladen also asserts the alleged events of 2017
(i.e.,
whether Gladen gave Kolarsky the images or Kolarsky obtained them
himself some other way) may result in the Court being diverted
from the issues at the heart of this matter and may lead to
litigation of irrelevant, collateral issues such as how Kolarsky
obtained these photos, when the images were taken, and the
circumstances under which the images were taken (i.e., whether
they were taken when Gladen was married to Kolarsky or while
Kolarsky was married to his first wife) .
Finally, although Gladen concedes the scope of permissible
discovery is broader than evidence allowed at trial, she asserts
the evidence sought in the Subpoena would be excluded from trial
under several rules of evidence including:
Federal Rule of
Evidence 402 (relevance); Rule 403 (unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence); Rule 404(b) (evidence
of a crime, wrong, or other act is not admissible to prove a
person's character in order to show that on a particular occasion
that person acted in accordance with his or her character); and
Rule 608 (subject to certain exceptions, extrinsic evidence is
11 - OPINION AND ORDER
not admissible to prove specific instances of a witness's conduct
in order to attack or to support the witness's character for
truthfulness).
In summary, Gladen contends the images are humiliating and
irrelevant, the Subpoena will not lead to the discovery of
admissible evidence, and the Subpoena will lead to litigation of
collateral matters.
II.
Plaintiff's Argument
Plaintiff asserts in her Response that her Subpoena is
reasonably calculated to lead to the discovery of admissible
evidence related to Gladen's affirmative defenses and
credibility.
Specifically, Plaintiff asserts the images "bear on
the reasonableness of Defendants' assertions that Plaintiff
acquiesced in their misconduct."
Pl.'s Resp. at 6.
Although it
is not entirely clear, it appears Plaintiff contends the evidence
sought in the Subpoena is relevant to Gladen's affirmative
defenses of waiver and/or consent.
In her Answer Gladen asserts the following regarding her
defenses of waiver and consent:
Plaintiff expressly or implicitly consented to
access by third parties, especially Ms. Gladen, to
information or images remaining on the SSD and to
any alleged intrusion on plaintiff's privacy.
Plaintiff alleges that she took pictures or
allowed them to be taken of her with Gladen's
husband, without clothing.
Images were taken in
Gladen's home. Without admitting the allegations
by plaintiff, as plaintiff alleges, she permitted
the images and other information from her computer
12 - OPINION AND ORDER
to be copied onto the SSD, by giving Kolarsky
control of her laptop and allowing him to attempt
to transfer the contents of her laptop to the SSD,
and then leaving the SSD with Kolarsky following
his unsuccessful attempt to do that. At the time,
Kolarsky was married to Ms. Gladen.
Plaintiff's
consent bars plaintiffs' claims of unauthorized
access, conversion, replevin, and intrusion upon
seclusion.
By engaging in an affair with Gladen's husband in
Gladen's home, plaintiff waived her alleged
privacy rights as to images taken of the two
there.
By authorizing Dr. Kolarsky to copy the
contents of her laptop and by failing to take
reasonable steps to protect any information that
might have been copied onto the SSD, plaintiff
further waived her right to possession of the SSD
and her alleged privacy interests in its contents.
As a result, any of plaintiff's claims that are
based upon her alleged privacy interests are
barred.
Gladen Answer at
~~
61-61.
Plaintiff asserts Gladen's
understanding of the circumstances in which she
obtained Plaintiff's intimate images, and of the
similar circumstances in which Kolarsky obtained
Gladen's videos, each bear on whether a reasonable
person would understand those circumstances as
amounting to consent or to a waiver of a person's
privacy rights.
Specifically, Gladen's beliefs
regarding whether she forfeited her privacy rights
in the videos through her conduct will assist the
jury in deciding whether Plaintiff did the same
through her similar alleged conduct.
Pl.'s Response at 7.
III. Analysis
Under Oregon law "the test for implied consent is an
objective one.n
State v. Coffman, 266 Or. App. 171, 182 (2014).
The question is what a reasonable person would have understood
13 - OPINION AND ORDER
under the particular circumstances.
Id.
An individual
defendant's subjective understanding of facts is insufficient
objectively to establish implied consent.
Id.
(" [T] he fact that
the officers knew that defendant was using the back door as his
front door does not establish his implied consent absent a
showing that an objective visitor, looking at the physical layout
of the living units and the residents' use of the area, would
also have concluded that he or she was impliedly invited to
contact defendant at that door.").
It is unclear how Gladen's alleged understanding of the
circumstances in which she obtained Plaintiff's intimate images
has any relationship to the alleged circumstances in which
Kolarsky obtained Gladen's images.
Moreover, the Court disagrees
with Plaintiff's assertion that both circumstances "bear on
whether a reasonable person would understand those circumstances
as amounting to consent or to a waiver of a person's privacy
rights." The Court also disagrees with Plaintiff's argument that
"Gladen's beliefs regarding whether she forfeited her privacy
rights in the [images] through her conduct will assist the jury
in deciding whether Plaintiff did the same through her similar
alleged conduct."
At best, Gladen's understanding of waiver of
her privacy rights in images taken 25 years ago would inform the
jury only as to Gladen's subjective belief regarding those images
at that time, but such evidence would not provide any assistance
14 - OPINION AND ORDER
to the jury in determining what a reasonable, objective
individual might understand regarding waiver or implied consent
as to the issues at the heart of Plaintiff's Complaint.
In any
event, the Court also concludes any waiver or implied consent by
Gladen pertaining to images of her that were taken 25 years ago
and that are now in Kolarsky's possession would be so tenuous as
to be irrelevant to this action, and those images are unlikely to
lead to the discovery of any admissible evidence.
Finally, the Court finds failure to quash the Subpoena will
likely lead to collateral litigation regarding the manner in
which Kolarsky obtained the images, when the images were taken,
and circumstances in which they were taken.
This, in turn, is
inconsistent with the proportionality requirements of Rule 26 and
the over-arching standard of Rule 1 that the Court and the
parties manage civil litigation to ensure its "just, speedy, and
inexpensive" resolution.
Accordingly, for these reasons, in the exercise of its
discretion, the Court grants Gladen's Motion to Quash and denies
as moot Gladen's Motion for Protective Order.
CONCLUSION
For these reasons, the Court GRANTS Gladen's Motion (#37) to
Quash Subpoena and DENIES as moot Gladen's Motion (#37)Protective
15 - OPINION AND ORDER
Order.
IT IS SO ORDERED.
DATED this 10th day of July, 2018.
United States Senior District Judge
16 - OPINION AND ORDER
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