State Attorney General Bob Ferguson's office and the Department of Social and Health Services have been ordered to pay $122,555 in attorney's fees — on top of an earlier $200,000 sanction — for wrongfully withholding evidence in an ongoing lawsuit.
The new costs were imposed in a ruling Friday by King County Superior Court Judge Michael Ryan, who also warned the state may face further sanctions in coming months.
In March, Ryan levied the initial $200,000 discovery sanction for what he called the state's "egregious" and "cavalier" failure to turn over nearly 11,000 pages of records to attorneys suing over the alleged severe neglect of a developmentally disabled woman, Emily Tobin, at an adult family home in Kent.
That earlier ruling had put the state on the hook to pay attorney's fees to the plaintiff's law firm of Hagens Berman. The only question was how much.
Hagens Berman attorneys asked for $214,000, an amount including a multiplier for what they argued was an "extraordinary" quality of work in uncovering the discovery abuses. The state had argued for the lower amount of $122,500.
Ryan rejected the higher fees, writing that the facts surrounding the state's misconduct in failing to turn over records were fairly straightforward. He noted DSHS had "inexplicably sat on over 10,000 pages of documents for six months" while the attorney general's office also failed to follow up.
"No advanced class in sanctions was necessary to understand the egregious nature of DSHS's and the AGO's conduct," Ryan wrote.
The state has denied intentionally withholding records.
"We respect the judge's decision," Brionna Aho, a spokesperson for the attorney general's office, said in an email Friday. "The team is hard at work to determine what happened and address those issues."
In a declaration filed this month in support of the higher attorney fees, Hagens Berman senior counsel David Moody wrote that the attorney general's office has been a "repeat offender" in failing to turn over records to plaintiffs' attorneys in similar cases.
"Over the last several years, it has become extraordinarily difficult to obtain
discovery from The Office of the Attorney General. A pattern of arrogance, nonchalance, and gamesmanship has become routine," Moody wrote.
He pointed to a similar case in 2017, in which the state was fined $100,000 and ordered to pay $17,000 in attorney's fees. Even after that, discovery violations by the state led to an additional $20,000 sanction.
The penalties and legal fees faced by the state in the Tobin case may grow in the coming weeks and months.
The Attorney General's Office admitted it recently discovered an additional 100,000 pages of records that had been wrongfully withheld, according to court filings. The penalties imposed by Ryan so far don't include those records.
Ryan's earlier ruling ordered the state to pay the $500-an-hour costs of a court-appointed "discovery master," charged with investigating whether the state has truly turned over all records relevant to the lawsuit.
Seattle attorney Russell Aoki was appointed to that role by Ryan on April 11. Aoki is empowered to interview DSHS and attorney general's office employees and to hire a forensic computer expert — also at state expense — to complete his investigation.
Depending on what Aoki finds, "additional sanctions may be warranted for additional discovery violations," Ryan wrote in his order Friday.
