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District Attorney Subpoenas Former Rivals 

Mike Dugan and Mark Pilliod are ordered to release documents to Flaherty attorney

An attorney for Deschutes County District Attorney Patrick Flaherty has subpoenaed documents, letters, emails, texts, memos, meeting minutes, recorded communications, videos and audio recordings from a range of individuals as part of an ongoing lawsuit.

Former Deschutes County District Attorney Mike Dugan, Deschutes County legal counsel Mark Pilliod, an assistant in Pilliod's office, representatives of the Oregon Department of Justice and a number of other individuals received subpoenas last week to provide information that Flaherty's attorney says may be related to the ongoing suit, according to those who had received subpoenas and an attorney for the plaintiffs in the case.

The subpoenas, two of which have been obtained by the Source, are related to a case that revolves around Flaherty's decision to lay off several deputy district attorneys after taking office in January 2011. Three of those deputy district attorneys, including Brentley Foster, Phil Duong and Jody Vaughan, then sued Flaherty claiming they were fired for organizing a union, according to documents related to the case.

While subpoenas differ, they appear to be extremely broad in scope.

For instance, the subpoena issued to Mike Dugan requests "any and all" emails, documents, texts, letters, etc., sent from or to Dugan since Jan. 1, 2010 regarding Flaherty and his wife, Valerie Wright; the campaign for district attorney of fall 2010; Flaherty's transition into office; Oregon State Bar complaints related to Flaherty; and an Oregon State Police investigation related to Flaherty.

It also requests any and all documents, texts, etc., to or from Dugan and a variety of entities, including the Department of Justice, the county's human resources office, the Deschutes County Board of Commissioners, Deschutes County legal counsel, anyone currently or formerly with the DA's office, anyone currently or formerly employed by Deschutes County, any contractor or agent of Deschutes County and any attorney for the plaintiffs in the case about Flaherty, Wright, Flaherty's campaign for office, the 2010 election, the plaintiffs in the case, other people laid off by Flaherty, the deputy district attorneys union and the Deschutes County District Attorney's Office, policies around document retention, destruction and deletion of records and, finally, any information relating to Mary Anderson, who is Flaherty's current chief deputy but initially left the office after he became DA.

The DOJ subpoena requests a similarly broad scope of information. It requests any and all documents regarding Flaherty or Wright, the election, Flaherty's campaign, Flaherty's transition into office, all inquiries into Flaherty, all communications with Deschutes County legal counsel regarding Flaherty, the deputy district attorney's union, all the plaintiffs in the case, Mary Anderson, communiqués with members of the Deschutes County Commission or Mike Dugan regarding any dealings with DOJ in the last three years.

Keith Bauer, Flaherty's attorney, said the orders are part of the discovery phase of the lawsuit and declined to comment on the legal strategy behind the subpoenas.

"I'd just as soon not discuss our legal issues in the case, but it's very appropriate to be asking for anything that might be admissible at trial," said Bauer, who works in Salem and has been appointed by the state to represent Flaherty in the case because Flaherty is a state employee, as are all Oregon district attorneys.

These documents may also lead to the knowledge of other documents that may be useful to Flaherty in his defense, said Bauer.

NOT THE FIRST ROUND

Flaherty has a history of conflict with both Dugan and Pilliod.

The 2010 campaign between Dugan and Flaherty was particularly vitriolic, and Pilliod and Flaherty have since been engaged in multiple legal battles.

Flaherty accused Pilliod of inappropriate behavior when Pilliod assisted deputy district attorneys in forming a union. Flaherty initiated a grand jury inquiry into Pilliod's decision to release the job applications of people applying to be deputy district attorneys in February of 2011.

Pilliod then sued Flaherty in January 2012 claiming he was defamed by Flaherty's claims. Then Flaherty and Wright each filed Oregon State Bar complaints against Pilliod in the spring of 2012.

In recent months, there has been little public interplay between Flaherty and Pilliod, and Dugan says he has avoided becoming embroiled in any issues since he left office.

Pilliod said the subpoena he received appeared to seek a "broad brush" of information but that subpoenas are just part of the normal civil ligation process.

"It's not a big surprise that subpoenas would go out for information," said Pilliod, who said he is likely to largely comply with the subpoena but may raise some objections to information protected by attorney client privilege.

Dugan described the subpoena he received as "overbroad" and invasive of his family's personal privacy with its order for what he believes to be access to personal home computers and personal cellphones. Dugan said he has requested legal representation from the Department of Justice as a former district attorney in this matter. Once counsel is appointed, Dugan said he would move to quash, or nullify, the subpoena.

"Since Jan 1., 2011, I have intentionally stayed out of this stuff because I was no longer DA," said Dugan. "It wasn't my place to interject my opinion or thoughts or good wishes or bad wishes. This brings me back into it."

The subpoenas were issued by Bauer's office just a few weeks after two attorneys for plaintiffs in the case filed motions to require Flaherty to turn over additional emails and documents that he had been withholding claiming attorney client privilege.

Attorneys for the plaintiffs Judy Snyder and Andrew Altschul also claimed in a memo that Flaherty had destroyed evidence related to this case. They filed a motion asking the court to penalize Flaherty for these actions, according to court documents.

Flaherty and his attorney were to have originally responded to these motions by Jan. 28, but received an extension until Feb. 11 when a judge granted Flaherty yet another extension until Feb. 15, based on Flaherty's workload stemming two recent murders in the county, said Bauer.

While Bauer said he could not comment on the responses he will make later this week, he did say that the plaintiffs' claims are untrue.

"We deny that there has been any inappropriate destruction of documents," said Bauer.

BOLI FINDS "SUBSTANTIAL EVIDENCE" OF DISCRIMINATION

These recent developments come on the heels of a set of decisions from the Oregon Bureau of Labor and Industries finding that two of District Attorney's Office employees, Sharon Sweet and Nicole Jenson, had been discriminated against by Flaherty.

Sweet, 62, was an investigator for the DA's office but was laid off after what she described in a statement to BOLI as a history of harassment and confrontations with Flaherty based on her gender and willingness to speak up about issues in the office. She has since filed multiple grievances with Deschutes County and an Oregon State Bar complaint against Flaherty, which was dismissed, in addition to the BOLI complaint.

Sweet did not return a request for comment Tuesday.

Jenson, 32, had been a trial assistant in the DA's office since 2000, but in January of 2012 had her schedule adjusted and was moved to the county's juvenile justice department. She claimed to BOLI that the move to a small and isolated department was related to her work with the union of county employees, because she was a woman and because of her age. She also filed an Oregon State Bar complaint. It, too, was dismissed.

BOLI has determined, however, that Flaherty descriminated against both women.

"In both situations we found substantial evidence to support the allegations of discrimination," said Charlie Burr of the state agency.

Both cases are now in a conciliation phase in which BOLI representatives are working closely with Flaherty's attorney, Bauer, to settle the issues. Jenson seeks only to have her former schedule reinstated. BOLI officials declined to comment on what sort of settlement Sweet might be seeking.

If no settlement can be reached on behalf of the women, both have the right to sue Flaherty in civil court, said Burr.

A union representative for Jenson, Yazu Dharmarajah, said experiences with Flaherty have been frustrating for the people he represents in the District Attorney's Office, including trial assistants. He said it is the responsibility of the county commissioners to confront Flaherty over his harassment and discrimination of employees.

"We are incredibly disappointed in how spineless the county has been in supporting county employees who have now been found to have been harassed and discriminated against," said Dharmarajah.

All three county commissioners stated Tuesday that Flaherty is an employee of the state, elected by the people of Deschutes County, and that they have no authority over the district attorney except for his budget.

"We cannot fire him. We cannot hire him," said Commissioner Tammy Baney. "That is solely up to the electorate, and any sort of discipline or concern would be shared through the attorney general's office."

Flaherty did not return a request for comment Tuesday.

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