Judge orders former Oregon Gov. Brown to testify on state’s response to COVID-19 in prisons

A federal magistrate has ordered that former Oregon Gov. Kate Brown can be deposed in a class-action lawsuit, specifically regarding her role in how the state responded to the coronavirus pandemic inside its prisons.

It’s the first time a current or former Oregon governor has been ordered to sit for a deposition in a civil case related to policy decisions during their time in office.

The litigation, first filed in April 2020, represents a massive financial liability for the state. The lawsuit covers about 5,000 people who were in custody at one of the state’s prisons and contracted COVID-19. A separate wrongful death class covers the estates of 45 others who were in prison at the time they died from the disease.

In her order released Wednesday, U.S. Magistrate Judge Stacie Beckerman states this is about more than the experience of one person in custody.

“Instead, a certified class of thousands of individuals infected with COVID-19 while in the state’s custody—including the estates of dozens who died—seek to ask Governor Brown questions about her knowledge of and actions regarding the spread of COVID-19 in Oregon’s prisons while she served as Oregon’s governor,” Beckerman writes.

For years, attorneys representing the state successfully argued against deposing Brown. They argued there were less intrusive means to get the same information and Brown was a high-ranking government official, which should protect her from being deposed.

“Governor Brown was similarly elected from the mass of the people, and on the expiration of the time for which she was elected, she has returned to the mass of the people again,” Beckerman writes. “Although the Court agreed with Defendants that deposing Governor Brown while she remained in office would interfere with her official duties as governor, the demands of the job have now remitted.”

A spokesperson for the Oregon Department of Justice confirmed Thursday that the state plans to appeal Beckerman’s decision to the Ninth Circuit Court of Appeals. Beckerman’s order offers reasoning on how her ruling fits within the Ninth Circuit’s own rulings on similar cases.

Attorneys representing those in custody want to ask the former governor — under oath — about her decision to close two prisons during the pandemic and about information Brown received regarding an early release program plaintiffs’ attorneys argue “did not meaningfully reduce the prison population.”

“Those decisions are central to plaintiffs’ claims in the case, which allege that the Oregon Department of Corrections and the governor were deliberately indifferent to serious medical needs and health and safety of people in prison during the pandemic,” Nadia Dahab, one of the attorneys for the plaintiffs, said late Wednesday.

Beckerman limited Brown’s testimony to two hours, saying the amount of time in the class-action case “is not too much to ask of a former elected official.”

According to an updated contract signed in March that OPB obtained through a public records request, the Oregon Department of Justice has agreed to pay the private law firm Markowitz Herbold up to $13.6 million to represent the state. The contract covers this case and 28 others, mostly cases in federal court, involving the Oregon Department of Corrections.

Correction: An earlier version of this story included a caption that stated former Gov. Kate Brown had already sat for the deposition.