A Multnomah County judge on Friday granted a preliminary injunction requiring Portland City Councilor Dan Ryan to preserve evidence on his personal phone and other devices until an ongoing public records lawsuit is resolved.
During a court hearing, Multnomah County Circuit Court Judge David F. Rees called the public records case, which was filed by the Mercury in September, a serious matter before a court of law.
“This is not a game of cat and mouse,” Rees said. “There are some indications that those games are being played, and it has to stop today.”
The Mercury filed a lawsuit against the councilor after his office declined to produce phone records and similar correspondence as part of a public records request filed by the outlet. Under Oregon law, litigation is the only remedy to obtain phone and email records stored on private devices if an elected official declines to provide them.
“This is not a game of cat and mouse. There are some indications that those games are being played, and it has to stop today.”
Multnomah County Circuit Court Judge David F. Rees
On Wednesday, October 7, the Mercury reported that Ryan stated in court documents that he left his phone at home the morning of October 1, and his spouse traded it in at an unspecified time that day. That’s the same day Multnomah County Circuit Court Judge Judith Matarazzo granted a temporary restraining order barring him from deleting messages on his personal phone. Temporary restraining orders expire after 10 days, but if a judge believes an order should be extended through the entirety of the case, they can issue a preliminary injunction, as the judge did on October 9.
By Thursday, Ryan’s story changed. He filed an additional declaration October 8 stating that his spouse informed him that his previous personal phone had not been traded in, and is still in his possession.
“The package containing my phone for trade-in never went out in the mail,” Ryan stated under penalty of perjury. “I will continue to possess the device pursuant to the Court’s Temporary Restraining Order. To the best of my knowledge, all records and information contained in the previous device were transferred to my new device.”
But questions arose as to whether the data regarding public records on Ryan’s private phone were fully preserved. Ryan said in earlier court documents that his phone is set to delete text messages automatically after 30 days—a setting that remained on after the legal action was filed. A copy of Ryan’s phone made using backup software on February 12 appeared to be the only remaining source of messages for the dates the Mercury requested, and messages sent or received after that date could be lost if they were automatically deleted.
The injunction does not guarantee the Mercury will gain access to the records it seeks, but their preservation is necessary to ensure any evidence in the case is available at a later date. Deputy City Attorney Trevor Byrd, who represents both the city and Ryan in his official capacity, told the court Friday that Ryan has also retained private counsel in the case.
Under the injunction, Ryan must within one business day create a new backup—through the same software he previously used—of his application and communications data, including all apps and data he uses to communicate with others.
The judge’s order goes further to ensure evidence will not be wiped, and the public will soon gain information about why Ryan’s statements to the court appear to conflict.
Within three days of the October 9 injunction, Ryan is required to file a new declaration to the court describing his understanding of whether the old phone was erased or factory-reset, what phone carrier is involved, what data was transferred to the new phone and how, and a full chronological accounting of the trade-in.
Within three weeks, Ryan must also complete a forensic imaging of his old and new personal phones outlined in his declaration, the backup copy made in February, and a backup of any other device he uses. That is likely to be done by a third party, and the court said it will be done at the city’s expense.
Additionally, because it is possible that Ryan uses his personal phone to conduct city business, he is required to continue keeping messages indefinitely, and disable any auto-delete features.
Rees didn’t pull punches in the courtroom Friday, stressing the power of the court to enforce the laws.
“He will be subject to contempt if he violates the order,” Rees said.
Ryan’s office did not respond to the Mercury‘s request for comment at the time of publishing.
Disclosure: The Mercury is the plaintiff in this case, and seeks no monetary damages. This reporting is based on public court documents, which are available through the Oregon Judicial Case Information Network (OJCIN).
