Allen v. Purss

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KENNETH ALLEN, Case No. 3:22-CV-00009-IM

Plaintiff, OPINION AND ORDER

v.

KAREN NAN PURSS; TESLA, INC., and

TESLA MOTORS CANADA ULC,

Defendants.

Liz Walling and Travis J. Mayor, Mayor Law, LLC, 7157 SW Beveland St., Suite 100, Tigard,

OR 97223. Attorneys for Plaintiff.

Glen P. McClendon, Lindsay Hart LLP, 1300 SW Fifth Avenue, Suite 3400, Portland, OR

97201. Attorney for Defendant Purss. John W. Kottnerus and Michael A. Yoshida, MB Law

Group, LLP, 117 SW Taylor Street, Suite 200, Portland, OR 97204. Attorneys for Tesla

Defendants.

IMMERGUT, District Judge.

This matter comes before this Court on Defendants Tesla, Inc. and Tesla Motors Canada

ULC’s (collectively, “Tesla Defendants”) and Plaintiff Kenneth Allen’s (“Plaintiff”) Motions to

Compel. ECF 12; ECF 15. The motions concern Defendant Karen Nan Purss’s failure to preserve

or provide critical evidence—namely, the Tesla vehicle involved in the underlying motor vehicle

accident—and failure to provide information obtained from that vehicle before it was discarded.

ECF 12 at 1. Tesla Defendants move for an order compelling Defendant Purss to produce (1)

documents and information obtained from the vehicle before it was discarded because Tesla

Defendants are no longer able to obtain substantially equivalent information and (2) documents

and information concerning the disposal and failure to preserve the vehicle because that

information is relevant to potential spoliation of evidence. ECF 12 at 2–3. Plaintiff filed a

separate motion, ECF 15, joining Tesla Defendants’ motion. Plaintiff argues that he also has a

substantial need for the documents and information at issue because they bear directly on

liability and causation of the underlying collision. Id. at 2. For the reasons set forth below, the

motions are GRANTED in part and DENIED in part.

BACKGROUND

On August 28, 2019, Defendant Purss drove her 2019 Tesla Model 3 into the back of

several cars ahead of her, including a vehicle driven by Plaintiff. ECF 12 at 1–2. On July 13,

2021, Plaintiff filed a complaint in Multnomah County Circuit Court for ordinary and gross

negligence against Defendant Purss. ECF 1-3 at 3–4. Defendant Purss answered, alleging as an

affirmative defense that the collision was caused by an unexpected malfunction of her Tesla

vehicle; she alleges the vehicle “switched into automatic drive mode,” causing it to operate

without her input.1 Id. at 12, 37. On December 3, 2021, Plaintiff amended her complaint to add

Tesla Defendants, ECF 1-2, and on January 4, 2022, Tesla Defendants removed this case to

federal court, ECF 1.

Less than a month after the collision and before this lawsuit was filed, Defendant Purss

sent Tesla a Spoliation Notice demanding that they preserve all evidence related to Defendant

1 Defendant Purss first answered on August 24, 2021, but filed an amended answer

following Plaintiff’s motion to dismiss Defendant Purss’s affirmative defense for failing to state

facts sufficient to constitute a claim. See ECF 1-3 at 12–38.

Purss’s Tesla vehicle pending a resolution of any claims arising out of the accident. ECF 12 at 3;

ECF 13-1. Defendant Purss also stated that they had “secured the vehicle in an appropriate

storage area.” Id. at 2. Tesla Defendants, after being named in the lawsuit in February 2022, sent

multiple requests to Defendant Purss to schedule a joint vehicle inspection to which they

received no response. ECF 12 at 4. At the parties’ March 7, 2022 Rule 26(f) conference,

Defendant Purss stated that the vehicle was being stored in Vancouver, British Columbia. Id. A

few weeks later, at the parties’ Rule 16 conference, Tesla Defendants stated their intent to

inspect the vehicle. Id. In May 2022, Tesla Defendants again requested to inspect the vehicle and

received no response. Id. On June 12, 2022, Tesla Defendants served Defendant Purss with a

formal Request for Inspection under Rule 34 and, again, received no response. Id. On June 21,

2022, Tesla Defendants contacted Defendant Purss again regarding scheduling a vehicle

inspection. Id. On June 22, 2022, Defendant Purss responded, stating that the vehicle had been

disposed of. Id.

On July 5, 2022 Tesla Defendants served Defendant Purss with a First Set of Discovery

Requests to obtain information and documents regarding the inspection and disposal of the

vehicle. Id. On August 18, 2022, Defendant Purss responded, disclosing that Defendant Purss’s

insurer, Insurance Company of British Columbia (“ICBC”), had stored the vehicle at a Copart lot

in Oregon before it was sold on May 27, 2022. Id. at 4–5. Defendant Purss produced a heavily

redacted email related to the sale of the vehicle. Id. Tesla Defendants then issued a subpoena to

Copart, id. at 5, and contacted Defendant Purss multiple times to clarify whether the vehicle had

been inspected prior to its disposal and whether inspection-related documents were being

withheld, id. On September 23, 2022, Defendant Purss produced a privilege log indicating that

she had retained an expert, Mark Erickson, to inspect the vehicle before its disposal. Id. The log

indicated that Mr. Erickson had inspected the vehicle three years prior in September 2019 and

downloaded crash data from the vehicle’s event data recorder (EDR). Id. Shortly thereafter,

Copart produced documents in response to the subpoena which indicated that on May 3, 2022, an

ICBC adjuster requested that Copart release the “seller hold” on the vehicle, and the vehicle was

sold on May 27, 2022. Id. However, the sale was cancelled because the purchaser determined

that the vehicle’s internal parts (“motherboard”) had been removed. The vehicle was ultimately

sold to a Canadian purchaser on July 18, 2022 and removed from the lot. Id.

Tesla Defendants contend that, while the inspection photographs and investigative report

identified in Defendant Purss’s privilege log would normally be entitled to work-product

protection under Rule 26(b)(3), these documents are discoverable because Tesla Defendants have

a substantial need for the materials and cannot, without undue hardship, obtain their substantial

equivalent by other means. Id. at 5–6. Tesla Defendants further contend that Defendant Purss is

improperly withholding the EDR data file and report because this information is not covered by

the work-product protection. Id. at 6–7. They also ask this Court to order Defendant Purss to

disclose the details of the inspection. Id. at 7–8. Finally, Tesla Defendants contend that they are

entitled to information regarding the storage, sale, and release of the vehicle to evaluate potential

evidence spoliation. Id. at 8–10. Defendant Purss responds that Tesla Defendants’ Motion to

Compel is moot because Defendant Purss intends to file an amended answer removing the

affirmative defense implicating Tesla. ECF 14 at 1.

On November 30, 2022, Plaintiff filed a separate Motion to Compel, ECF 15, stating that

they seek to join Tesla Defendants’ motion. Plaintiff contends that he also has a substantial need

for the documents at issue because they bear directly on causation of the crash and therefore,

Defendant Purss’s liability. Id. at 2. Defendant Purss again responds that she will be withdrawing

her affirmative defense implicating Tesla. ECF 16 at 1. She also argues that the material sought

is protected by the work product doctrine and there is no authority for Plaintiff to join Tesla

Defendants’ motion. Id. at 2.

STANDARDS

Under Federal Rule of Civil Procedure 26(b)(1), parties may discover any unprivileged

information relevant to any party’s claim or defense and proportional to the needs of the case.

Fed. R. Civ. P. 26(b)(1). Pre-trial discovery is “accorded a broad and liberal treatment.” Shoen v.

Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993) (internal quotation marks omitted) (quoting Hickman v.

Taylor, 329 U.S. 495, 507 (1947)). When a party objects to a discovery request, “a ‘privilege

log’ or description of the claims of privilege or work product required by Rule 26(b)(5) must be

provided within a reasonable time after service of timely objections to a discovery request.” LR

26-5(b).

DISCUSSION

A. Documents and Information Regarding the Vehicle Inspection

Tesla Defendants ask this Court to compel Defendant Purss to produce three categories of

information regarding the September 2019 inspection of the Tesla vehicle: (1) photographs taken

and an investigative report prepared by Defendant Purss’s expert, Mr. Erickson; (2) the EDR

data file and corresponding report; and (3) factual details of the inspections, evaluations, or

testing performed on the vehicle by Defendant Purss.

1. Photographs and Investigative Report

Tesla Defendants presume that the photographs and investigative report constitute

attorney work-product. ECF 12 at 5. Thus, according to Tesla Defendants, the only question

before this Court is whether the materials are discoverable notwithstanding their protection under

the work-product doctrine. However, this Court notes that the work product protection might not

apply at all if Mr. Erickson is an expert retained for trial.

a. Investigative Report

The work product doctrine is found in Rule 26(b)(3) and instructs that “[o]rdinarily, a

party may not discover documents and tangible things that are prepared in anticipation of

litigation or for trial by or for another party or its representative . . . .” Fed. R. Civ. P. 26

(b)(3)(A). But Rule 26(b)(3) does not govern the discoverability of materials generated by

experts. See Advisory Committee’s Note re 1970 Amendment to Rule 26, reported at 48 F.R.D.

487, 504–505 (“These new provisions of [Rule 26](b)(4) . . . reject as ill-considered the decisions

which have sought to bring expert information within the work-product doctrine.”); see also

Hewlett-Packard Co. v. Bausch & Lomb, Inc., 116 F.R.D. 533, 536 (N.D. Cal. 1987), abrogated

on other grounds by Advanced Cardiovascular Sys., Inc. v. C.R. Bard, Inc., 144 F.R.D. 372

(N.D. Cal. 1992) (“It is quite clear that Rule 26 does not include within the definition of ‘work

product’ documents generated or consulted by experts retained in connection with litigation.”).

Instead, the discoverability of expert materials is governed by Rule 26(b)(4).

In general, a party must disclose the identity of any person who may testify at trial as an

expert—in addition, this disclosure must be accompanied by a written report if the witness was

retained or specially employed to provide expert testimony in a case. Fed. R. Civ. P. 26(a)(2).

But under Rule 26(b)(4), a party need not disclose the facts known or opinions held by a retained

or specially employed expert if that expert is not expected to be called as a witness at trial unless

there are “exceptional circumstances under which it is impracticable for the party to obtain facts

or opinions on the same subject by other means.” Id. at 26(b)(4)(D)(ii).2 Rule 26(b)(4) is

concerned only with experts “retained or specially consulted in relation to trial preparation” who

are expected to testify at trial—it precludes discovery against experts who were “informally

consulted, but not retained or specially employed.” Advisory Committee’s Note re 1970

Amendment to Rule 26.

Thus, the discoverability of Mr. Erickson’s report depends on whether Mr. Erickson was

retained or specially employed to provide expert testimony or was only informally consulted. If

Mr. Erickson was retained or specially employed for trial and is expected to testify at trial, his

report is discoverable. If Mr. Erickson was merely consulted by Defendant Purss but is not

expected to provide expert testimony, his report is not discoverable.3 Defendant Purss is

ORDERED to provide information to Tesla Defendants, Plaintiff, and this Court about the nature

of Mr. Erickson’s involvement in this case—including whether he was retained or specially

employed in anticipation of litigation or to prepare for trial and whether he is expected to be

called as a witness at trial—by December 22, 2022. Accordingly, the motions to compel are

DENIED as to Mr. Erickson’s report until further information is provided regarding Mr.

Erickson’s role as an expert.

2 The Rule also precludes discovery of drafts of reports that would otherwise be

discoverable. Fed. R. Civ. P. 26(b)(4)(B).

3 The moving parties may contend that Rule 26(b)(4)(D)(ii) entitles them to Mr.

Erickson’s report even if Mr. Erickson is not expected to be called as a witness at trial because it

would be impracticable for them to obtain facts or opinions on the same subject by other means.

However, as addressed below, this Court is ordering Defendant Purss to produce all objective

evidence related to the storage, inspection, and disposal of the Tesla vehicle in question.

Accordingly, the moving parties will be able to obtain facts and opinions about the condition of

the vehicle by other means, making the disclosure of Mr. Erickson’s report unnecessary.

b. Photographs

Tesla Defendants concede that photographs taken by Mr. Erickson are entitled to work-

product protection under Rule 26(b)(3), which generally precludes discovery of materials

prepared in anticipation of litigation. ECF 12 at 5. However, the work-product protection is not

unlimited—“[it] is not a privilege but a qualified immunity . . . .” Admiral Ins. Co. v. U.S. Dist.

Ct. for Dist. of Arizona, 881 F.2d 1486, 1494 (9th Cir. 1989). Materials prepared in anticipation

of litigation or for trial may be compelled if they are otherwise discoverable and the party

seeking the materials “shows that it has substantial need for the materials to prepare its case and

cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ.

P. 26 (b)(3)(A). In determining whether a party has a substantial need for the documents at issue,

courts should consider the importance of the materials sought to the party seeking them in

preparation of their case, the difficulty the party will have in obtaining them by other means, and

the likelihood that the party, even if able to obtain the information by other means, will not have

the substantial equivalent of the documents sought. Advisory Committee’s Note re 1970

Amendment to Rule 26.

Even presuming the photographs taken by Mr. Erickson of the Tesla vehicle constitute

attorney work-product, the photographs are nonetheless discoverable. Tesla Defendants have

shown a substantial need for the photographs: the condition of the vehicle is central to their

ability to defend against Plaintiff’s claims, and they cannot obtain the photographs, or their

substantial equivalent, by any other means because the vehicle has been disposed of. The

photographs are also critical to Plaintiff’s case—the condition of the vehicle is relevant to the

cause of the collision and, therefore, to all Defendants’ liability. Because Defendant Purss

already has the photographs of the Tesla vehicle in her possession and the moving parties have

demonstrated a substantial need for the photographs, Defendant Purss is ORDERED to produce

the photographs by December 30, 2022. Accordingly, the motions to compel are GRANTED as

to the photographs.

2. EDR Data File and Report

Second, Tesla Defendants contend that they are entitled to the EDR data file and report.

ECF 12 at 6. They explain that the EDR is a device installed in a vehicle which “records specific

technical vehicle and occupant information for a brief period of time before, during, and after a

crash.” Id. The data includes “‘driver input’ data that is critical to accident reconstruction, such

as data related to the manual operation of the steering wheel and use of the accelerator and brake

pedals.” Id. The EDR data file can be retrieved from the vehicle and converted to a PDF report

using Tesla’s publicly available online tool. Id. at 6–7.

Tesla Defendants argue that the EDR file and report do not constitute attorney work-

product and are discoverable because the materials do not reveal an attorney’s mental

impressions, strategies, conclusions, or lines of proof. Id. at 7. They further argue that the

purpose of the attorney work-product protection is not to shield factual information from

discovery. Id. This Court agrees. Defendant Purss may not keep objective and critical data from

the other parties in this case simply because she was the first party to obtain it. As with the

photographs, the EDR materials also bear directly on liability and causation of the underlying

collision, and therefore, Plaintiff is likewise entitled to the information. Accordingly, Defendant

Purss is ORDERED to produce the EDR data file and corresponding report by December 30,

2022, and the motions to compel are GRANTED as to the EDR materials.

3. Factual Details of Inspections, Evaluation, or Testing

Third, Tesla Defendants contend that they are entitled to the factual details of all

inspections, evaluation, or testing performed by Defendant Purss, including inspection dates,

who was present, details of the inspections, and results of any testing. Id. at 7. They argue that

they have a substantial need for this information, especially because the documents provided by

Copart indicate that the motherboard of the vehicle had been removed. Id. at 7–8.

This Court agrees that both moving parties are entitled to this information. This Court

finds this information most relevant to the moving parties’ evaluation of potential evidence

spoliation, addressed further below. Accordingly, Defendant Purss is ORDERED to produce

factual details of all inspections, evaluation, or testing performed by Defendant Purss by

December 30, 2022. The motions to compel are GRANTED as to this information.

B. Documents and Information Regarding the Storage, Sale, and Release of the Vehicle

Tesla Defendants also ask this Court to compel Defendant Purss to produce factual

information regarding the disposal of the Tesla vehicle in order to evaluate potential evidence

spoliation. Id. at 8. Specifically, Tesla Defendants ask this Court to require Defendant Purss to

“(1) explain, with specificity, the factual circumstances in which the vehicle was sold/released;

and (2) produce unredacted copies of the emails/correspondence related to the release/sale.” Id.

at 9.

A party engages in willful spoliation when the party destroys evidence and has “some

notice” that the evidence was “potentially relevant” to the litigation. Leon v. IDX Sys. Corp., 464

F.3d 951, 959 (9th Cir. 2006) (quoting United States v. Kitsap Physicians Serv., 314 F.3d 995,

1001 (9th Cir. 2002)). The information before this Court suggests that Defendant Purss was on

notice that the Tesla vehicle was highly relevant to this litigation when Defendant Purss’s

insurer, ICBC, requested that the vehicle be sold. The parties are not yet asking this Court to

determine whether Defendant Purss has engaged in evidence spoliation. But this Court does find

that the moving parties are entitled to information and documents regarding the storage, sale, and

release of the Tesla vehicle in order to evaluate whether to bring a spoliation claim and move for

sanctions against Defendant Purss. This Court reminds the moving parties that, while they are

entitled to factual information and documents that are not covered by the attorney-client

privilege, they are not entitled to the disclosure of confidential communications covered by the

privilege even if related to evidence spoliation. But if Defendant Purss withholds documents

relevant to spoliation, she must prepare a privilege log. Accordingly, Defendant Purss is

ORDERED to produce factual information and non-privileged documents related to the storage,

sale, and release of the vehicle, as well as any additional information that might bear on evidence

spoliation by December 30, 2022. The motions to compel are GRANTED as to this information.

C. Defendant Purss’s Stipulation to Withdraw Affirmative Defense

Defendant Purss argues that Tesla Defendants’ Motion to Compel is moot because she is

stipulating to the filing of an amended answer that alleges no affirmative defenses. ECF 14 at 1.

Defendant Purss also asks this Court to deny Plaintiff’s Motion to Compel, reiterating her

intention to withdraw her affirmative defense. ECF 16 at 1. She also argues that Plaintiff has

cited no authority to join Tesla Defendants’ motion.4 Id.

At the outset, this Court notes that Defendant Purss has not filed an amended answer.

Moreover, even presuming Defendant Purss will withdraw her affirmative defense, the

information requested by the moving parties is nonetheless relevant to both Tesla Defendants

and Plaintiff because it bears directly on the cause of the vehicle collision and thus Defendant

Purss’s negligence and ultimate liability. Therefore, whether Defendant Purss withdraws her

affirmative defense does not affect this Court’s rulings on the motions before it. In addition,

Defendant Purss has not offered any legal authority to object to Plaintiff’s ability to join Tesla

4 Defendant Purss also argues that she should not be required to produce “clearly

attorney-client privileged work product” or to “admit liability.” ECF 16 at 1. The application of

the attorney work-product doctrine to the requested information is addressed above. This Court

also notes that the production of objective, factual information does not amount to an admission

of liability.

Defendants’ arguments, and this Court finds that the interest of resolving this dispute

expeditiously counsels in favor of ruling on both motions concurrently.

CONCLUSION

For the reasons stated above, Tesla Defendants’ and Plaintiff’s Motions to Compel, ECF

12, ECF 15, are GRANTED in part and DENIED in part.

IT IS SO ORDERED.

DATED this 16th day of December, 2022.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge