Judge sanctions AG's lawyers for failure to turn over documents

By Mike Carter and Ralph Thomas
Seattle Times staff reporter

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A federal judge has sanctioned and fined the lawyers for Attorney General Christine Gregoire for failing to turn over documents in a lawsuit brought against the agency by a former employee.

U.S. District Judge Thomas Zilly seemed incredulous that the Attorney General's Office, as well as lawyers at a top private Seattle law firm hired to defend the state had neglected to provide documents relevant to the discovery process in the case.

"It will remain for trial to see how important the documents not disclosed are," Zilly said. "But clearly they are relevant ... timely and should have been disclosed long ago."

In the lawsuit, Janet Capps, a former deputy attorney general, accuses Gregoire and her key administrators of defaming and wrongfully dismissing her because of a missed appeal in 2000 that cost taxpayers $17.8 million.

Capps' lawyer argued that many of the new documents will help prove her case that Gregoire and her deputies made Capps a scapegoat for the embarrassing blunder. The suit is scheduled to go to trial in July.

Kirk Johns, a senior attorney at Stafford Frey Cooper, which is representing the state, explained that the trial attorneys had already turned over more than 18,000 pages of documents to the attorney for Capps.

Those documents had been gathered in response to requests filed under the state Public Disclosure Act dating back to 2000.

"It was reasonable to assume that all the documents had been collected," Johns said.

But they hadn't.
 
Last week, Senior Assistant Attorney General Michael Tardif, while being questioned under oath, revealed he had a stack of nearly 1,100 pages of documents on his desk that nobody in the office or at Stafford Frey Cooper requested after the lawsuit had been filed.

Over the weekend, seven other attorney-general officials said they have undisclosed documents as well, according to court filings.

Gary Larson, a spokesman for Gregoire, said it was not clear whether the state or Stafford Frey Cooper would pay the sanctions. Stafford Frey Cooper has been paid more than $300,000 so far by the state to defend the lawsuit.

Larson downplayed the significance of Zilly's ruling.

"This issue concerns the inadvertent withholding of a few mostly inconsequential documents and it's important to keep it in perspective," Larson said. "What is really important is that the employees of the Attorney General's Office have responded to four years of meritless claims by a former employee who failed to do her job."

Questions on documents

After Capps filed her lawsuit in 2003 and the formal court-discovery process began, Johns acknowledged nobody in his firm or the Attorney General's Office asked if any other documents might exist.

This was particularly troublesome, Zilly said, because the state had already overlooked several thousand pages of documents earlier this spring. Those were discovered last month by Capps' attorney, Suzanne Thomas.

Because the documents had not been turned over, Zilly said Thomas was entitled to all of the recently discovered documents, regardless of whether they might otherwise be withheld due to attorney-client privilege.

He also awarded Thomas fees and costs related to the documents, which could run into the tens of thousands of dollars.

In the spring of 2000, state lawyers missed the deadline to appeal a $17.8 million jury verdict against the state in the so-called Beckman case. Filed on behalf of three developmentally disabled men who were sexually and physically abused in a state-licensed home, the case resulted in what was, at the time, the largest personal-injury verdict ever against the state.

The missed appeal, meanwhile, has become a lingering embarrassment for Gregoire, now a leading Democratic candidate for governor.

Gregoire's office pinned most of the blame on Capps, an assistant attorney general who helped with the case, and even suggested she acted "intentionally" in missing the appeal deadline.

The two sides have been squabbling over the documents for months.

In March, some 2,700 pages of previously undisclosed documents surfaced and were given to The Seattle Times by Gregoire's Democratic rival for governor, King County Executive Ron Sims.

The documents, including e-mails and notes from telephone conversations, revealed that Gregoire's top deputies sought to shape the outcome of an investigation that Gregoire had billed as "independent." For instance, one of Gregoire's deputies asked the investigator — former federal Prosecutor Susan Barnes — to make her recommendations "more positive."

The documents included several drafts of Barnes' report, which was changed to downplay broad management problems and focus most of the blame on Capps.

Last month, Gregoire's attorney, Anne Bremner, accused Thomas of improperly leaking documents to the media as part of a campaign to "embarrass, vex and harass the good name of the Office of the Attorney General." Bremner sought sanctions against Thomas, which were denied.

Thomas then filed a motion on Monday seeking a long list of sanctions against Gregoire and the other defendants. She accused them of intentionally withholding documents in an effort to obstruct Capps' lawsuit, and said some of the newly discovered documents are "core" to Capps' claims.

"It is conduct unacceptable for any party, but particularly inappropriate for the state Attorney General," Thomas wrote.

Mike Carter: 206-464-3706 or mcarter@seattletimes.com