OLYMPIA — The Attorney General’s Office has new guidance for private attorneys and outside experts making “explicitly clear” their obligations on preserving documents, a direct result of misconduct in Oso mudslide litigation that led to one of the state’s largest-ever wrongful death settlements.
It also has beefed up internal training and improved managing of complex cases to ensure discovery challenges from opposing parties are taken seriously, senior attorneys in the agency told lawmakers in a hearing Tuesday.
“We were not clear with the experts in the case,” Chief Deputy Attorney General Shane Esquibel told the Senate Law and Justice Committee. “I don’t know that we took as seriously as we should have some of the concerns that were raised early on.”
Esquibel was one of three representatives from the office who took part in a work session on the case arising out of the March 2014 mudslide that claimed the lives of 43 people. The state reached a $50 million settlement with plaintiffs in October, weeks after it was discovered that emails were routinely deleted among scientists and engineers hired to offer expert opinions on the disaster’s cause.
At the time, Attorney General Bob Ferguson promised an internal review and to make public its findings. Tuesday marked the first extended public discussion of that effort and subsequent actions taken by his office. Ferguson did not attend Tuesday.
Attorneys for those harmed announced a $50 million settlement with the state Oct. 9, the day before the scheduled start of the civil trial. It resolved claims involving 33 deaths, six serious injuries and 19 property destruction lawsuits, according to materials prepared by Ferguson’s office. Of the total, $10 million came out of state coffers and $40 million is covered by an insurance carrier.
The next day the same plaintiffs reached a separate $10 million settlement with Grandy Lake Forest Associates timber company.
State attorneys settled when it became clear the failure to preserve documents heightened the legal risks.
A King County Superior Court judge had warned he would sanction state attorneys — and let jurors know — for their role in a secret plan to destroy the emails that was hatched in March 2015. The judge characterized the behavior as “more than an innocent, bumbling mistake,” as the state had contended, but “less than the conspiratorial cabal” described by the plaintiffs.
The court imposed a $1.2 million sanction, of which $394,332 covered plaintiffs’ legal costs in uncovering the misconduct, and double that amount — $788,664 — as a punishment to deter similar actions in the future.
After settlement of the case, Esquibel said managers of each of the agency’s 27 legal units were surveyed on their specific protocols and practices regarding the handling of discovery requests. They also surveyed staff to learn what could be done to reduce the risk of future violations.
That’s led to increased training for workers in the division and throughout the Attorney General’s Office with a discussion of what occurred in this particular case. Also, all employees can now access resources on discovery and other legal-related matters of the nonprofit Electronic Discovery Institute.
Another step involved rewriting the agreements used when hiring private lawyers to serve as special assistant attorney generals as well as experts. Revised wording spells out their responsibilities and obligations, Esquibel said.
Afterward, Sen. Mike Padden, R-Spokane Valley, the committee chairman, said he appreciated the presentation.
“It sounds like they learned some lessons from all of this,” he said.
Meanwhile one unanswered question is whether anyone lost their job as a result of the mistakes.
Special assistant attorney general Mark Jobson, a contract attorney who had a lead role preparing the state’s defense in the case, said in depositions for the civil trial that he was present when experts discussed deleting emails but mistakenly believed they would still be in compliance with rules for legal discovery. Jobson’s contract expired Sept. 30, 2016, and was not renewed.
It is unclear if any other lawyer suffered a similar fate.
“We don’t talk about personnel matters,” Esquibel said after the hearing.
In the meantime litigation spawned by the tragedy is not over. There are eight wrongful death claims pending and additional lawsuits for injured individuals and damaged property. If resolution leads to a financial settlement, the same state insurance carrier will pay out of a $35 million secondary policy, assistant attorney general Rene Tomisser said.
Also, an appeal is pending on a decision that removed Snohomish County as a party alongside the state and the timber company in the original lawsuit.