The state can't look at former Gov. John Kitzhaber's emails that were inadvertently archived by the state, a judge ruled Friday.
The ruling came in the long-running litigation between Oregon and software giant Oracle America, each blaming the other for the implosion of Cover Oregon health insurance exchange last year.
The effects of the ruling are not limited to Oracle, and the outcome was a win for Kitzhaber, who is subject to a federal criminal influence-peddling investigation.
The ruling, by Marion County Circuit Court Judge Courtland Geyer, can now be used by Kitzhaber's attorney, Janet Hoffman, to help persuade federal judges to block a federal criminal subpoena for the same records. She had contended the state could not look at the emails or respond to the federal demand without violating his constitutional protection against unreasonable search and seizure.
Geyer's finding also throws up potential roadblocks to requests under the state's public records law for emails that are not part of the Oracle litigation. That's because only a third-party "special master," or referee, will be allowed to look at the emails, and disclose only those related to Oracle.
The emails in question are from a gmail account archived by the state starting in 2013 that was used by Kitzhaber for both personal and state business. Though a Kitzhaber staffer had ordered the state to archive a separate gmail account used for state business, his lawyer argues that he didn't realize that his more personal account would also be archived.
In an earlier filing, Attorney General Ellen Rosenblum had agreed that the archiving was inadvertent, but disputed that the state had them illegally.
In court however, Rosenblum's attorneys said they just wanted a ruling on the issue, and they made no attempt to defend the state's right to possess and go through the records. That prompted Oracle's lawyer to observe that his side was being forced to defend the state's position.
Edward Siskel accused the state of essentially colluding with Kitzhaber, and noted that Hoffman and Rosenblum had presented no direct evidence, such as a sworn declaration that Kitzhaber didn't consent to the archiving.
Hoffman denied any collusion with the state.
Geyer noted that Rosenblum's office in theory could reactivate its suspended criminal investigation of Kitzhaber. Similarly, he said that Hoffman, as Kitzhaber's attorney, might have her own interests when it came to reviewing the records.
And after Oracle said they'd settle for a special master, Geyer ruled that that was his order.
The details of the agreement have yet to be worked out. The Ninth Circuit Court of Appeals has not yet ruled on whether the grand jury subpoena for the same set of emails is lawful.
-- Nick Budnick
nbudnick@oregonian.com
503-294-5083
@nickbudnick