‘This Is Big Stuff’: Judge Orders Washington To Pay $100K Sanction For Withholding Emails

By Austin Jenkins June 22, 2017

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For the second time in less than a year, the state of Washington has been sanctioned for failing to turn over evidence in a civil court case.

Earlier this month, a judge in Snohomish County imposed a $100,000 fine on Washington’s Department of Social and Health Services for violating the rules of discovery in a lawsuit that alleges the agency failed to protect a seven-year-old girl named Cheyene from “years of extreme physical and emotional abuse.” The state paid the fine last week.

“This is big stuff,” Superior Court Judge Michael Downes said at the June 9 sanction hearing, during which he imposed the fine.

“I have been on the bench for 13 years,” Downes said. “You could count on the fingers of one hand how many times I’ve imposed sanctions for discovery violations, but I think I have one here in front of me now.”

Previously, the Washington Attorney General’s office had assured the court that all documents relevant to the case had been handed over to the plaintiffs.

Then, in response to a separate public records request, Cheyene’s attorney, David P. Moody, received what he described as “scores of documents” that should have been turned over as part of the pre-trial discovery process.

“The documents that were concealed … are some of the most critical documents in the case,” Moody said.

Those documents included emails between top DSHS officials after the rescue of Cheyene and her younger siblings from a trash-and-feces-filled house in Lake Stevens in January 2015.

One of the emails indicated that, in 2014, a DSHS supervisor had overruled a caseworker’s decision to pursue removing the children from the home. Instead, the case was turned over to a team that provides intervention services to families.

When police found the children in 2015, they had been abandoned and locked in the home. One of the police officers who responded that day described finding Cheyene and one of her siblings hiding under a blanket, and a listless baby in a crib.

“I was so shocked at the condition of the home and the children, I had to exit the home to compose myself before I could continue with the investigation,” the officer wrote in a report, according to court filings.

The lawsuit against DSHS alleges that over several years the agency failed to properly investigate “numerous, detailed warnings” that Cheyene and her siblings were in danger, resulting in “years of extreme physical and emotional abuse, neglect and malnutrition.”

DSHS would not comment on the lawsuit or the sanction, citing ongoing litigation. But in court, Assistant Attorney General Deborah Severson said DSHS had made “reasonably diligent efforts” to turn over documents to the plaintiffs and noted those totaled more than 44,000 pages.

The judge disagreed.

“I’m convinced far, far, far beyond any preponderance of evidence standard that the department should have done a better job,” Downes said. He gave DSHS until July 10 to turn over to the plaintiffs any additional documents that are relevant to the case.

Moody called the court’s sanction against DSHS “extraordinary.”

“They need to get their act together, and the public should be outraged,” Moody said.

This isn’t the first time in recent months that a judge has sanctioned the state for missteps in the discovery process during a lawsuit.

Last October, a King County judge vowed to impose a “significant monetary sanction” against the Washington Attorney General’s office for failing to preserve emails related to the deadly 2014 Oso landslide. In that case, a former assistant attorney general on contract with the Attorney General’s office failed to intervene to prevent the deletion of emails between expert witnesses hired to defend the state in a lawsuit brought by victims of the Oso landslide.

Attorney General Bob Ferguson took responsibility for his office’s failure to preserve emails and said he would mandate internal training to ensure violations of the rules of evidence didn’t happen again.

“The court found that we fell well short of that duty in this case, and I am committed to preventing that from happening again,” Ferguson said in a statement at the time.

A few days later the state settled the Oso lawsuit for $50 million.

In the DSHS case, the judge said he saw no evidence that state attorneys had withheld discovery documents and made clear the sanction was against the agency, not the attorney general’s office.

The $100,000 fine was paid for out of the state’s Self Insurance Liability Account.