State sanctioned over deleted emails in mudslide litigation

SEATTLE — A judge ruled Tuesday that the state Attorney General’s Office must pay sanctions because its expert witnesses destroyed documents ahead of a civil trial over the Oso mudslide.

King County Superior Court Judge Roger Rogoff said the punishment would be significant, but wasn’t ready to provide a dollar amount. Rogoff said he needed more time to review evidence to determine how much harm was done to the plaintiffs’ case.

The penalties will compensate for extra costs that the attorneys for Oso slide victims have borne trying to figure out what was missing. They also are meant to spur the Attorney General’s Office to overhaul legal training practices.

“The fact that the public may be impacted by this may hopefully deter other problems in this area,” Rogoff said.

Additionally, the slide victims’ attorneys will be allowed at trial to explore the reasons experts deleted emails and whether that was done to hide information that could have hurt the state’s case.

The judge said that at least one of the state’s attorneys encouraged the experts to destroy records. The office should have acknowledged the problem by December of last year, but didn’t until August.

Rogoff characterized the problem as “more than an innocent, bumbling mistake,” as the state had contended, but “less than the conspiratorial cabal” described by the plaintiffs.

The state’s lawyers apparently did not understand their discovery obligations and “displayed a degree of institutional arrogance,” he said. They failed to come clean when the problem became apparent, and later provided the court with incomplete and inaccurate information.

The judge denied the plaintiffs’ requests to decide in their favor without trial or to exclude testimony from certain state experts.

Also Tuesday, the court scheduled opening arguments in the trial for Monday. They initially had been planned for this week.

Attorneys for the Oso slide victims asked the court for sanctions in August, after state experts acknowledged that they’d been routinely deleting emails for almost a year and a half.

Attorney General Bob Ferguson issued a statement Tuesday that took responsibility for the situation and promised to work hard to fix it.

“The Attorney General’s Office continues to work diligently to rectify our mistakes,” he said. “When I first learned in late August that state experts in the case had deleted emails, I immediately directed my staff to prioritize the collection and recovery of all evidence in our or our experts’ possession, with the assistance of computer forensic experts. We have and will continue to swiftly turn over emails and other records to the court.”

The deleted records were stored on electronic devices used by eight different people.

Rogoff made special assistant state attorney general Mark Jobson a focus of his order. Jobson was a lead member of the state’s defense team early on as an assistant attorney general. He retired last year but was soon hired back to keep working on the case.

The strategy to destroy records arose during a March 2015 meeting at a restaurant in SeaTac, internal notes and depositions suggest. Jobson has said he was present at that meeting when geotechnical experts agreed not to save emails they believed would be irrelevant. He said he mistakenly believed they would be in compliance with rules for legal discovery. He denied directing them to delete emails at that meeting or at any other time.

Rogoff said the evidence doesn’t support that explanation. The judge also said other attorneys representing the state were likely aware that emails were being destroyed or became aware in the following months.

“The court is having trouble deciding what is worse — a lawyer wrongly directing his experts to delete emails, or a lawyer allowing the non-lawyer experts themselves to make legal decisions about how to handle communications among them,” the judge said.

Ferguson said Tuesday that Jobson is no longer working on the case or for his office, but did not elaborate. Jobson’s contract expired at the end of September.

The attorney general said his office has already started to develop new internal training programs.

“Judge Rogoff’s order identifies steps my office should take, and these will be incorporated into our responsive measures,” Ferguson said.

The slide killed 43 people on the morning of March 22, 2014, when it buried the rural Steelhead Haven neighborhood in mud, rocks and other debris. It wiped out a stretch of Highway 530 and temporarily blocked the North Fork Stillaguamish River.

Survivors and family members of people who were killed sued later that year.

In addition to the state, the suit also names Grandy Lake Forest Associates, a timber company that had logged nearby forest land. Snohomish County was dismissed as a defendant last month. Plaintiffs’ attorneys agreed to the dismissal after losing a series of pretrial rulings. They intend to appeal and hope to restore the county as a defendant.

The plaintiffs are arguing that the state made the hillside more dangerous by allowing the Stillaguamish Tribe to build a crib wall along the river, at the bottom of the hill, as part of an effort to improve salmon habitat.

Preliminary reports from the state’s geotechnical experts challenge the theory that logging over the years made the hillside dangerously prone to collapse. Studies since the disaster have documented evidence of giant slides in the river valley over thousands of years.

Noah Haglund: 425-339-3465; nhaglund@heraldnet.com. Twitter: @NWhaglund.

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