# Allen v. Purss

> District Court, D. Oregon · December 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10395489

## Case

- **Court:** District Court, D. Oregon
- **Decided:** December 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10395489

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395489. Public record. Not legal advice.