OSO — Attorneys defending Washington against claims that the state should be held partly responsible for the misery caused by the Oso mudslide admitted Friday it was wrong for their hired experts to systematically delete emails discussing the case.
But the state’s lawyers insisted that was an honest mistake, not “part of some nefarious plot” to hide evidence about why the hill fell in 2014.
“No attorney for the state ever directed the experts to delete emails, to reach a particular conclusion or to change their opinions,” Rene Tomisser, senior counsel at the state Attorney General’s Office, said in court papers. “To the contrary, the state’s experts’ conclusions are based solely on data, the scientific method, and their search for truth.”
The 30-page pleading was filed at close of business Friday in King County Superior Court. It was brought in response to accusations leveled by attorneys representing people harmed in the disaster, which killed 43 and caused millions of dollars in property damage.
Plaintiffs’ lawyers on Aug. 23 urged Judge Roger Rogoff to sanction the state based on evidence they allege points to “the biggest discovery fraud in the history of the state.”
It’s true that experts hired by the state in early 2015 agreed between themselves to regularly delete emails discussing their theories about why the hill fell, Tomisser wrote.
It’s also true that one member of the state’s legal team was aware of the experts’ agreement and failed to instruct them that they should preserve all emails about the case for later review, he wrote.
The lawyer who apparently knew about the email-destruction agreement is special assistant attorney general Mark Jobson. In a declaration filed along with Friday’s pleading, he 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 others in the state’s legal team 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 provided by the state’s experts show an “Attorney Bob” was present at a meeting when the decision to destroy emails was reached.
On Friday, Christie filed a declaration insisting he had no knowledge of the agreement.
“I recall no discussion about information management amongst the expert team and the attorneys,” he wrote. “I recall no discussion about emails of any kind. If others had such a discussion, I was not a party to it.”
In the pleading filed Friday, Tomisser apologized to the judge, the other parties in the case and the state’s experts for not correctly advising the scientists about how to avoid the discovery questions now at issue.
State lawyers, all the way up to state Attorney General Bob Ferguson, are engaged in trying to make the situation right, he wrote.
The attorney general’s office has hired a computer forensic expert to attempt recovery of the experts’ deleted emails. The state also has scoured its servers and secured hundreds of messages that may be responsive to discovery demands. And in pleadings Friday, the state offered to pay attorneys fees and other costs that the plaintiffs may incur questioning the experts under oath about any new information contained in the previously withheld or deleted emails.
Attorneys for those harmed by the slide 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. If that happened, the results of roughly $3 million worth of scientific studies would not be presented to jurors, including information from the first-ever investigative drilling on the hill.
Tomisser said that would not serve justice.
The state’s experts have shared their data with the plaintiffs all along, he wrote.
They’ve filed reports challenging widely held theories, particularly the allegation that logging over the years made the hillside dangerously prone to collapse. 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.
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 state and its experts made no effort to hide the truth in this case,” Tomisser wrote. “Rather, it is plaintiffs’ counsel who, by their motion, ask this court to prevent a jury from inquiring into the truth of what caused the Oso landslide because of discovery errors.”
A hearing on the sanctions motion is scheduled before judge Rogoff early this month. Trial in the case, believed to be the state’s largest-ever wrongful death lawsuit, is scheduled to get underway in October.
Scott North: 425-339-3431; firstname.lastname@example.org. Twitter: @snorthnews.
This story has been modified to correctly reflect the gender of Rene Tomisser, senior counsel at the state Attorney General’s Office.