Judge wants AG’s emails in Oso mudslide liability case

SEATTLE — The state Attorney General’s Office must hand over emails from its lawyers and expert witnesses to help a judge determine exactly who among them knew about an email-destruction policy that’s casting a shadow over Oso mudslide lawsuits.

King County Superior Court Judge Roger Rogoff issued the order Wednesday, as opposing sides prepare to face off in the largest wrongful death case in state history. The judge is pondering whether the state or any members of its legal team should face sanctions for failing to disclose records sought by attorneys who represent families of those who were killed or otherwise harmed in the slide.

“I don’t think I’m in a position to make any finding today, beyond what the state has conceded,” Rogoff said after listening to lawyers discuss the conflict for three hours.

The Attorney General’s Office has admitted scientists and engineers systematically erased emails discussing efforts to pinpoint what caused a hillside along the North Fork Stillaguamish River to collapse in March 2014, killing 43 people. It was an honest mistake to delete the records, and nothing of relevance was lost, the state’s attorneys contend.

“This is a matter that the state does take very seriously,” said Rene Tomisser, senior counsel from the Attorney General’s Office.

John Phillips, an attorney for the plaintiffs, countered: “The record is clear here — it was willful and it was in bad faith.” Phillips urged the judge to impose sanctions immediately and not to delay the trial, scheduled to start next month.

The stakes are high for Washington state and its taxpayers. The harshest course of action the judge could take would be deciding the case in favor of the plaintiffs without trial.

Another course would be to bar the state’s experts — a team of more than a half dozen scientists and engineers — from testifying at trial. That would render useless an estimated $3 million worth of scientific studies, including information gathered from the first-ever investigative drilling on the hill.

Notes from a March 2015 meeting of state experts mention the decision to destroy emails.

The lawyer who apparently knew about the agreement is special assistant attorney general Mark Jobson. In a declaration filed Friday, Jobson said he was present when the experts discussed their plans and he mistakenly believed they would be in compliance with discovery rules because the experts’ conclusions and data ultimately would be supplied over time.

In court papers, plaintiffs’ attorneys suggested that other lawyers working with the state were aware. They focused on Bob Christie, a Seattle lawyer who just months before joining the mudslide litigation was sanctioned in an unrelated case where a judge determined rampant document destruction had occurred.

Notes from the March 2015 meeting reference “Attorney Bob.” In a sworn statement, Christie said he attended, but can’t recall any discussion about email or managing information from the state’s team. He said he had no part in instructing experts on which documents to save or discard.

The plaintiffs’ lawyers said that someone from the state’s legal team should have discovered the email problem by late 2015, as the sides went through the discovery process. The state only offered to try to unearth the missing records last month after the other side discovered the scope of the record destruction and demanded court sanctions.

The judge Wednesday chipped away at the timeline.

“I’m trying to ask about when you all figured this out,” Rogoff told the state’s attorneys.

The judge ordered the state to provide him with documents by next week to show what assistant attorneys general, other lawyers on the case and expert witnesses knew about the records that the plaintiffs’ lawyers believe were withheld.

The Attorney General’s Office has hired a computer forensic consultant to retrieve deleted emails. Rogoff demanded an update by the end of this week on how long that recovery process would take.

Emails the state already has recovered must be turned over to a retired judge, acting as a court-appointed “special master,” who will decide which documents need to be surrendered over to the opposing side.

The next hearing related to sanctions is set for Monday.

Preliminary reports from the state’s experts are filed with the court. Among other things, they challenge the popular theory that logging over the years made the hillside dangerously prone to collapse. Studies since the disaster also have found signs of giant slides across the river valley since glaciers retreated thousands of years ago.

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

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