WA AG’s Office admits to withholding 100,000 additional records in lawsuit

Days after a King County Superior Court Judge sanctioned the Washington State Attorney General’s Office and the state Department of Social and Health Services for withholding nearly 11,000 records in a lawsuit involving a developmentally disabled adult, the AG’s office has admitted that it has found 100,000 more pages pertaining to that same case that were not previously turned over.

A Discovery Master has now been appointed to manage discovery issues in the case, according to court filings from April 11 signed by King County Superior Court Judge Michael K. Ryan.

The plaintiff in the case is suing DSHS and the state for failing to provide adequate case management and for failing to investigate allegations of abuse and neglect. Ryan granted the plaintiff’s motion for discovery sanctions after DSHS and the AG’s Office failed to produce nearly 11,000 documents on time that “substantially prejudiced the plaintiff in preparing for trial.”

The AG’s Office and DSHS were required to pay $200,000 in sanctions for that order, which has 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, according to the AG’s Office.

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

The judge also ordered the state to pay the plaintiff for attorney’s fees and other fees associated with the case in that filing, at a rate that has not yet been determined.

The remaining 100,000 plus pages were found after the AG’s Office and DSHS turned over the initial 11,000 pages missing from discovery and were sanctioned by the judge.

The Discovery Master is appointed at the expense of the AG’s Office and DSHS at a billable rate of $500 per hour, and will be required to review all briefings and all discovery produced by DSHS. The appointee will take “all necessary steps to determine whether all written discovery requests” from the defendants “have been thoroughly and completely answered and all responsive documents have been produced” including to determine if DSHS’s search for responsive documents was sufficient, to determine if counsel for DSHS personally assisted and provided guidance to the agency to ensure the documents were provided in a timely manner, and to review DSHS’s privilege log, among other things.

DSHS and/or the AG’s Office are required to pay the funds monthly, which comes from taxpayer money, and within 30 days of the invoice from the Discovery Master, the judge ordered.

In a letter dated April 3, the AG’s Office noted that they had found “emails (along with attachments) previously thought to have been produced but were not.”

“Again, the state deeply regrets the errors in discovery in this case and is working to rectify them,” wrote Jennifer S. Meyer, the deputy attorney general. “We are committed to working with the special master and the other parties to ensure that the State has fully satisfied its discovery obligations.”

Similar situations

But this is not the first time the AG’s Office has been sanctioned for withholding documents during discovery, nor is it the first time the office has had to apologize for similar transgressions.

David P. Moody, the attorney hired to represent the plaintiff, noted in court filings in February that within the AG’s Office and DSHS “there is a well-established pattern of discovery abuses” and that “the pattern has become a habit.”

In 2017, a Snohomish County Judge sanctioned DSHS and the AG for “violating the rules of discovery in a lawsuit that alleges the agency failed to protect a 7-year-old girl from “years of extreme physical and emotional abuse,’” Northwest News Network reported at the time. For that, the AG’s Office was required to pay $100,000 in sanctions.

A Discovery Master was appointed in that case too.

The year before that, a King County Judge threatened sanctions against the AG for not preserving emails regarding the 2014 Oso landslide, a lawsuit that ultimately cost the state $50 million, Northwest News Network reported.

The network reported in 2017 that Attorney General Bob Ferguson “took responsibility for his office’s failure to preserve emails and said he would mandate internal training to ensure violations of the rules of evidence didn’t happen again.”

“The court found that we fell well short of that duty in this case, and I am committed to preventing that from happening again,” AG Ferguson was quoted as saying at the time, according to Northwest News Network.

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