Attorney General’s Office, DSHS ordered to pay $200,000 for withholding 11,000 documents

The Washington state Department of Social and Health Services and the state Attorney General’s Office were ordered to pay $200,000 for withholding nearly 11,000 pages of documents in a recent court case, according to an order filed in King County Superior Court late last month.

The plaintiff in the case, a developmentally disabled adult, is suing DSHS and the state for failing to provide adequate case management and for failing to investigate allegations of abuse and neglect. King County Superior Court Judge Michael K. Ryan granted the plaintiff’s motion for discovery sanctions after DSHS and the AG’s Office failed to produce documents on time related to discovery.

DSHS found the responsive documents early on, but officials said they did not turn over the records for months because no one at the AG’s office made a specific request for those documents to be provided, according to the filing.

The judge said that the AG’s Office made “no attempt to explain why DSHS failed to provide these documents sooner or explain why counsel did not follow up with DSHS to make sure that all responsive documents were provided to them at the time DSHS located these documents.”

“It is apparent to the court that DSHS and the AGO lack sufficient protocols to make sure that discovery is done in a timely and complete manner. The proof is in the pudding,” Ryan wrote. “This complete lack of diligence is tantamount to intentional withholding of these documents because it falls so far below the standards necessary to comply with DSHS’s discovery obligations.”

Ryan wrote that the attorney from the AG’s Office assigned to the case outsourced the discovery work to a paralegal that he was not properly communicating with or supervising. The judge admonished the office for attempting to lay the blame on the paralegal.

Defendants had been asked to produce the documents by December 2021, but failed to meet that deadline. The documents were then found in June 2022 but not produced until December 2022. Between that time, the AG’s Office moved for a summary judgment on the plaintiff’s claims while also seeking to prevent the plaintiff from taking a deposition that would have addressed discovery in the case, among other things.

That was particularly concerning to the judge, he wrote, because the AG’s Office “took the position that such discovery was unnecessary because there were no disputes as to the adequacy of DSHS’s production of documents.” It was after this that the additional 11,000 documents pertaining to the case were found.

In those documents, a DSHS employee mocked the plaintiff and even made light of the concerns regarding their care, Ryan said.

“The lack of processes and procedures by the State’s largest law firm is very concerning to the Court because it evinces a reckless approach to discovery and case management,” Ryan wrote. “This lack of internal safeguards is deeply troubling to the Court and demonstrates that the largest law firm in Evergreen State does not have adequate procedures in place to ensure that its discovery obligations are being met.”

The judge noted that this is not the first time the AG’s office has been sanctioned for lack of appropriate procedures. In 2017 they were also sanctioned for $100,000 for intentionally withholding documents.

“The Court finds that production of almost 11,000 pages of documents over a year past when they were due substantially prejudiced the plaintiff in preparing for trial,” Ryan said. “The discovery violations in this case are egregious, serious, without excuse and the result of willful disregard of discovery obligations by both DSHS and the AGO.”

The AG’s office and DSHS opposed the motion in court filings and claimed that because they did not intentionally withhold documents that sanctions from the judge were not warranted.

In an email to McClatchy, a spokesperson for the AG’s Office said that the $200,000 in sanctions ordered by the judge had already been paid to the King County Sexual Assault Resource Center, as the judge ordered. DSHS and the AG’s Office were required to split the cost evenly, and the money was paid out of the State Insurance Liability Account, they said.

DSHS agreed with the AG’s Office statements and told McClatchy that the agency had no further comment.