A day after the Oso mudslide, a search-and-rescue helicopter prepares to land. (Genna Martin/The Herald)

A day after the Oso mudslide, a search-and-rescue helicopter prepares to land. (Genna Martin/The Herald)

Lawyer on state’s mudslide legal team was sanctioned earlier

OSO — A key member of the Washington state legal team accused of deliberately destroying records in the court battle over the Oso mudslide was required to pay more than $27,000 in sanctions in an unrelated case where a judge determined rampant document destruction had occurred, court records show.

Seattle attorney Robert Christie, who for more than 30 years has specialized in helping governments fight lawsuits, paid the sanctions in a King County civil case in which his developer-client destroyed records during a long legal battle over a business dispute. Christie denied involvement, but was penalized just the same.

Those sanctions came just months before the state Attorney General’s Office hired him to assist in defending Washington against claims brought by people harmed in the 2014 Oso mudslide.

The disaster killed 43 people. A resulting legal tangle has grown into the state’s largest-ever wrongful death lawsuit. In court papers, attorneys for the people harmed in the mudslide predict the case “will also be known as the biggest discovery fraud in the history of the state — a fraud orchestrated by the state’s own Attorney General.”

The plaintiffs have asked for sanctions against the state’s legal team.

Christie on Monday directed all questions about the mudslide litigation to the attorney general’s office. As for the sanctions in the previous King County case, he said he disagreed with the court’s ruling but paid the money as ordered on behalf of his law firm and then promptly withdrew from the case. There’d been “great difficulty” getting his client to comply with discovery requests, he said in an email.

“There was never a finding that we had anything to do with failing to preserve evidence,” Christie wrote.

In response to the mudslide sanctions motion, state attorneys have agreed to hire a computer forensic expert to determine if it is possible to recover the records that were destroyed. If the emails back up the plaintiffs’ claims that the experts’ testimony has been tailored to match the state’s defense, those findings potentially could render some $3 million worth of scientific and engineering studies unusable at trial.

Christie joined the state’s legal team in October 2014, Peter Lavallee, a spokesman for the attorney general, said Monday. Private attorneys are regularly brought in to assist in difficult litigation, he said.

“The state does that a fair amount, particularly on a large and complex cases like this. It’s a well-established (practice) by which the state brings in a special assistant attorney general, or SAG, especially on a case that requires subject-matter expertise, in highly complex cases with voluminous records to review,” he said.

In this case, an insurance carrier for the state, Allied World, selected Christie and is paying him directly, Lavallee said.

On Aug. 22, plaintiffs’ attorneys in the mudslide case urged King County Superior Court Judge Roger Rogoff to sanction the attorney general’s office. The move came after the attorneys discovered the state’s experts for nearly a year and a half had routinely destroyed their emails in spite of subpoenas seeking those records. The experts acknowledge the emails documented their discussions over whether evidence suggests human actions somehow contributed to the Oso hillside collapse.

Several of the state’s experts recently said under oath in depositions that they’ve adhered to the email-destruction strategy since a meeting on March 23, 2015, one year and a day after the mudslide hit. The meeting was attended by officials from the state Department of Natural Resources, assistant state attorneys general and a lawyer identified in notes only as “Attorney Bob.”

Plaintiffs’ lawyers say in court papers they believe Christie is “Attorney Bob.”

While none of the scientists and engineers so far deposed have said state lawyers directed them to destroy their emails, they say the attorneys were there when the decision was made, court papers show.

“Counsel was present but not involved in the discussion,” said Rune Storesund, a forensic engineering consultant hired by the state, in an Aug. 2 deposition.

Christie has a history of representing governments and others in legal battles where questions about access to records are key.

In 2004, for example, he was part of a losing effort to help the city of Wenatchee after evidence surfaced that city attorneys had earlier withheld records related to the detective who investigated the infamous Wenatchee “sex ring” cases. The city wound up being ordered to pay $718,000 in sanctions. The Seattle Post-Intelligencer at the time reported it was the largest such award in state history.

In 2005, Christie was hired by the city of Everett to help it prepare for legal claims expected after a mentally ill man who stabbed an Everett officer collapsed during his arrest and later died.

To avoid a potential conflict, the death was investigated by the Snohomish County Sheriff’s Office. A longtime homicide detective assigned to the case raised concerns with his bosses when he learned that Christie had “provided suggestions” to police on what information should be included in officers’ witness statements and reports.

Christie refused to reveal what, if anything, he said to the officers, citing attorney-client privilege. He also said it was “completely false” and “naive” to assume anything inappropriate may have occurred.

He stuck to that position even as questions were raised by then-sheriff Rick Bart, and attorneys Mark Roe and Janice Ellis. Roe is now the county’s elected prosecutor, and Ellis is a superior court judge.

Similar questions were raised after a 2009 line-of-duty shooting involving former Everett police officer Troy Meade and a drunken man who was seated at the wheel of his car. Meade shot the man multiple times from behind. Detectives investigating the deadly shooting were concerned about Christie’s involvement in preparing police reports before they were turned over to investigators.

In the mudslide case, the state’s attorneys gave the plaintiffs’ attorneys assurances their subpoenas would be honored and records supplied.

In December 2015, plaintiffs notified the state that it had supplied materials from slide experts that were marked as being off-limits and subject to attorney-client privilege. They also raised questions about whether the privilege truly applied.

Christie took the lead in demanding the records’ return, a negotiation that lasted the better part of a week, documents show.

Questions lingered, particularly after the state’s experts acknowledged they had been communicating about the case using emails. The plaintiffs’ attorneys demanded access.

There was more sparring in the months that followed, with state attorneys offering assurances that the concerns were being looked into and that they’d shared “all factual material.”

But in July, the state released copies of an empty folder labeled “04_Communications” that had been prepared by Storesund, a San Francisco-area forensic engineer who was consulting on the mudslide.

When plaintiffs interviewed Storesund in early August, “he testified that the state’s expert team, in presence of the state’s attorneys, had agreed to systematically destroy all of its emails.” They asked the state attorneys to provide documentation of that policy, but didn’t immediately hear back.

A few days later, records from another state expert appeared to support the existence of a records-destruction policy. A file from the Outlook email system appeared to be blank, but when computer experts took a closer look, they turned up 278 messages from earlier in the year “marked for deletion.”

Three other state experts also told the plaintiffs’ attorneys under oath they had followed a policy to systematically delete emails. They said an assistant state attorney general had instructed them to send copies of all their emails to attorneys — a means of asserting that the communication may be subject to attorney-client privilege.

Prior to the sanction motion being filed Aug. 22, state attorneys had provided just one email exchange among its experts for 2014 and only five for all of 2015.

The plaintiffs have asked Rogoff to consider a number of sanctions. The harshest would be deciding the case in favor of the plaintiffs without a trial. In the alternative, they’ve suggested the state be precluded from offering testimony from its experts.

The state’s experts have filed reports that challenge widely held theories about the hillside, particularly the allegation that logging over the years made it dangerously soggy and prone to collapse. Studies conducted since 2014 have found signs that giant slides have occurred repeatedly in that stretch of the North Fork Stillaguamish River Valley since the Ice Age.

The experts also have opined that the hillside was so geologically complex as to preclude “any reasonable predictability of the timing of a long-runout landslide within the perspective of a human lifetime,” court papers show.

Scott North: 425-339-3431; north@heraldnet.com. Twitter: @snorthnews.

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