1 THE HONORABLE CATHERINE SHAFFER HEARING DATE: THURSDAY, APRIL 6, 2017 TRIAL DATE: SEPTEMBER 4, 2018 2 3 4 5 6 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 7 8 RIDE THE DUCKS SEPTEMBER 24, 2015 AURORA BRIDGE COLLISION No. 15-2-28905-5 SEA THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL RECORDS 9 10 11 [Re: THE DINH GROUP CAUSE NO 15-2-28905-5 sea] 12 13 I. RELIEF REQUESTED 14 Comes now the Dinh Plaintiff Group and asserts that RTD Seattle upper management 15 continuously withheld adequate funding from its maintenance department, leading to insufficient 16 resources and deficient maintenance which contributed to the cause of the catastrophic 17 mechanical failure of Duck 6 on September 24, 2015. 18 Documentary evidence and the testimony of multiple RTD Seattle employees reveal that 19 the maintenance department was understaffed, underfunded, and ended up cutting corners to get 20 21 22 23 24 25 THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 1 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 ducks up and running. RTD Seattle reported $9.6 Million in gross revenue for calendar 2014 and 2 should have been able to fund this essential safety related expense.1 3 The discovery supports Plaintiffs’ negligence claims and relates to feasibility defenses 4 and apportionment of fault between RTD Seattle and RTD International, which shared 5 information and resources relative to design and maintenance of DUKW vehicles. This included 6 discussion between the Duck entities regarding which would undertake the work prescribed in 7 the service bulletin regarding axle failures, directly at issue in this case. 8 Based on the above, the Dinh Plaintiff Group propounded its third discovery requests 9 seeking relevant and discoverable budget information concerning RTD Seattle from 2012 10 through 2015. RTD Seattle has refused to answer these questions, claiming that such 11 information is not discoverable pre-judgment under any circumstances. After conducting a 12 CR 26(i) discovery conference, the Dinh Plaintiff Group now brings this motion to compel. 13 II. STATEMENT OF FACTS 14 2.1 Four days before the crash, on September 20, 2015, Duck captain Sarah Chido felt that 15 something was not right on Duck 6. The Duck felt “weird,” sounds reverberated as unusual 16 “echoes” and as she went over one of the joints “bumps” on the Aurora Bridge, the feeling was 17 so strong that it “made the hair on my back stand up.”2 Upon reaching the other side of the 18 bridge she called the mechanics: “And he was, like, what’s wrong? And I said, I don’t know, I just have this really weird feeling. And he was, like, I can’t do anything with a feeling. What’s wrong, you know? I was, like, I don’t know. I have a sense that something under the duck needs to be looked at.”3 19 20 21 1 22 WUTC Appendix L. Exhibit N. Deposition Sarah Chido. Exhibit D. pp. 35-38. 3 Deposition Sarah Chido. Exhibit D. p 38:19-25. 2 23 24 25 THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 2 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 Two mechanics came out and spent “maybe two minutes” looking under the duck before 2 Ms. Chido resumed the tour.4 3 2.2 4 “duck 6 was hitting potholes and bumps harder than usual.”5 5 2.3 6 concerns about Duck 6. After speaking/arguing with maintenance she ended up scribbling out 7 the entire paragraph.6 She was asked about the form and scribbles by the police and NTSB.7 8 2.4 When later interviewed by the police, the mechanics described Ms. Chido’s concern as: Six hours later, when filling out her daily inspection form, Ms. Chido wrote down her Ms. Chido summed up the maintenance department’s response to her concerns: “And they said, well, we’re just going to have to, you know, basically wait to see what breaks and then we’ll fix it since, you know, we can’t find anything. And I – and now I feel like that was not an appropriate response, but I guess…that’s kind of how we deal with things. That if it’s – if it’s broke, we fix it.”8 9 10 11 2.5 Joe M. Hatten is the Fleet Maintenance Manager for RTD Seattle. He wrote a diary which 12 tracked his interactions and conflicts with upper management regarding the running of the 13 maintenance department which is his responsibility to oversee.9 This is a partial summary of his 14 concerns that relate to this motion: 15  April 25, 2013 two and a half hour meeting with Brian Tracey the Owner/CEO and Ryan 16 Johnson Operations Manager. “I explained that not only are we short staffed, which puts 17 our current staff of mechanics at the risk of being exhausted, which is a safety concern, 18 given the safety sensitivity of our jobs.” (p.6). “I have requested that we hire 2 more 19 mechanics in order to have a day guy on each shift, someone with experience to help with 20 4 21 22 Deposition Sarah Chido. Exhibit D. p. 39:9-11. Deposition Sarah Chido. Exhibit D. p. 41:19-25. 6 Daily inspection form. Exhibit K. 7 NTSB investigation. Exhibit F. p. 12. 8 Deposition Sarah Chido. Exhibit D. p. 71:7-25; 72:1-15. 9 Hatten Diary. Exhibit G. 55 23 24 25 THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 3 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 any break downs, resulting in the duck being repaired sooner and potentially back on the 2 road touring, making money. I was told that there isn’t enough money for that and not to 3 mention the medical benefits costs.” (p.6). Mr. Johnson agreed and said “Brian we have 4 to do this, the life of our fleet depends upon it”. (p.6). 5 Tracey. (p.6). (Emphasis added). 6  No response was given by Mr. June 4, 2013 Spirited conversation with Mikie Coffman (the general manager/ Mr. 7 Tracey’s daughter). Mr. Hatten reiterated his concerns from April. “Her response was, 8 again, that’s a lot of money for 2 more mechanics…” (p.7). (Emphasis added). 9  July 7, 2013 Met with Mr. Johnson who instructed him to change the maintenance 10 schedules. “I told him that instead of spending time making me a schedule, which I can 11 do just fine, that he should help me convince the corporate team that we need to hire 12 more mechanics.” (p.7). 13  July 9, 2013 Met with Mr. Tracey, Ms. Coffman and Mr. Johnson regarding “$12K in 14 missed revenue from Duck 8 and Duck 3 being down.” The insinuation was that Mr. 15 Hatten caused this because of the schedule: 16 “I proceeded to bring up the staffing issues as to the main issue at hand, and the work load versus mechanic ratio. I was told by Mikie that the ticket booth/tours have to flourish in order for the company to be a success. I rebutted with a successful upper level business built on a weak or short staffed base puts the entire organization in peril. I informed all members in the meeting that everything in this company hinges or starts on the floor of the shop. I stated that without a solid maintenance program, properly staffed, it was just a matter of time before something really bad happens. I stated that if someone dies in an accident with one of our Ducks due to a mechanical issue that was overlooked by one of our mechanics due to time constraints, exhaustion or whatever, that the mechanic and I would burn and that no one in the corporate office would take the fall. Brian said the whole company would burn.” (p.7). 17 18 19 20 21 22 23 24 25 THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 4 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1  July 10, 2013 Mr. Tracey called to inform that the company had leased another duck 2 from Branson MO bringing the fleet to 18. “I was asked to expedite, to the utmost, the 3 process to get it approved for touring, i.e. Coast Guard inspection, maintenance etc. 4 There was no mention of increasing the maintenance staff, nor did I ask.” (p.8) 5  July 18, 2013 Mr. Tracey said with the addition of another duck it was appropriate to hire 6 another mechanic. “I am not a genius, but when I asked for 2 more mechanics we had 17 7 vessels, we now have 18 and I have been allotted 1 more mechanic, yet to be hired, I 8 have not gained anything.” (p.8) 9  August 15, 2013 Mr. Johnson said the “company was considering buying 3 used gas 10 ducks.” I asked why maintenance staff was not being sent to review the potential 11 vehicles and was told: “given the fact that you are short staffed, we did not want to make 12 your staffing situation worse.” (p.8). Did an assessment of what would need to be done to 13 bring the vehicles into use. Concluded by saying that increasing the fleet to 20 would 14 require “at a bare minimum, the addition of 3 more mechanics….An individual would 15 think that this would be a ‘no-brainer’ but, after bringing this to the CEO Brian Tracy, his 16 rebuttal was ‘let’s just wait and see if we really will need them and we don’t know what 17 affect these 3 ducks would have on the on my staffing’. I am at a loss.” (p.13) 18  November 4, 2013 in emailing with Mr. Johnson: “But, Ryan, you know for so long the 19 guys, now and from the past, have adapted to the rush through checkouts in order to get 20 them all done due to the staffing of the shop and workload that is generated from the 21 checkouts/tours and I am trying to get them out of that mindset.” (p.14). “But the ducks 22 are showing signs of neglect in the proactive maintenance department and that, over time, 23 24 25 THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 5 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 will result in what we are seeing and coming out of a ‘balls to the wall season’ 2 contributes as well.” (p.14) “I honestly am concerned with the addition of the 3 ducks 3 and the work load that they bring with them, I know we will make it happen/work, but at 4 what cost to the equipment, my staff, the Company?” (p.14). “I just wish & hope that 5 expanding the staff in the nest is embraced as eagerly as the purchase of those 3 ducks 6 were and not seen as Joe wanting more people or just spending money, because I do 7 spend a lot, but it allows the ducks to be running.” (p.15)(Emphasis added). 8  January 5, 2014 Told Mr. Johnson “…that I had to have more mechanics with the 9 addition of these three ducks. He waved it off and said this meeting was not the time to 10 discuss staffing.” (p.15) Later that afternoon Mr. Johnson: “proceeded to inform me that 11 Brian was not going to budge on hiring more mechanics. Ryan told me that Brian has 12 stated that ‘when Joe started we had 5 mechanics and Isaac, we had to hire more. We 13 hired another to make six, and then another to make 7 hourly mechanics. When is it 14 going to stop?’ My response was and I quote ‘when I started you had enough mechanics 15 for 10 ducks, and that the shop was, has been and still is understaffed.” “I informed him 16 that I am tired of the adversarial environment that is created every time I bring up hiring 17 more mechanics. I stated we seem to have no problems hiring more CPTs to operate 18 these additional vessels; we have no problem hiring a new budget/IT manager, or ticket 19 booth staff. But to hire a new mechanic or staff the maintenance shop properly is 20 forbidden…hell will freeze before that can happen.” “Ryan’s response to all of this is that 21 he supports and understands my situation, but he knows that Brian will not budge and 22 that is just the way he runs his company.” (p.16) 23 24 25 THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 6 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777  1 March 2014. “My mechanics are on the verge of walking out in a form of mutiny as a 2 result of the staffing shortages, work load, etc. and I am at a loss as to how to avert it. 3 (p.16). A meeting with management occurred and Brian Tracy said: “we finally see how 4 short staffed you really are, we will bring in as many part time previous employees as it 5 requires to help with the workload…we are here to help take this stress off of you and 6 make it better.” (p.16). It was decided that JC Hatten Senior Lead (son of Joe Hatten) was 7 tasked with putting together a list of problems and possible solutions.  8 April 1, 2014. JC Hatten’s list included: a) only one functioning jack for 20 vehicles; b) 9 homemade equipment that is old and unsafe; c) air compressor inadequate; d) tow bar is a 10 safety hazard. (p.17). He also described unrealistic expectations including: “The ‘Get 11 them up no matter what’ mentality during the season causes problems in these situations. 12 When a safe, reliable repair is a goal, being rushed or stressed over a job completion time 13 is not how you reach that goal. (p.18)10  14 15 October 6, 2014. Meeting called by Brian Tracey who stated there was a 91% increase in breakdowns in 2014 from 2013. (p.19).  16 January 5, 2015. A two to three hour meeting was held with upper management. It was 17 extremely heated. Felt maintenance was being blamed by management. The fleet was 18 breaking down on a daily basis as many as 2-4 a day, coupled with work being done on 19 the refurbished new ducks, and “coupled with the fact that my shop has been and still is 20 short staffed by 2-4 mechanics.” (p.19). It was “concluded by Brian stating that we were 21 22 10 JC Hatten email April 16, 2014. Exhibit J. 23 24 25 THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 7 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 going to fix all the problems and issues, and we would do it without hiring more 2 mechanics or spending more money.” (p.19)(Emphasis added). The Ryan Johnson memo11 that led to the Hatten/Hoffman blow up with upper 3 2.6 4 management included the following statement: “Year to date (2014) it is reasonable to say that 5 Missed tours alone, not including added maintenance, has cost RTD of Seattle $317,000 dollars. 6 Using the same calculation through all of 2013 the amount lost was $169,000. That is a 7 difference of $148,000 more missed revenue from 2013 to 2014. (Emphasis added). 8 2.7 9 exact words used by Mr. Hatten, that his statements as described in paragraph 2.5 were generally Ryan Johnson stated repeatedly in his deposition that though he might not remember the 10 talking points he remembers Mr. Hatten saying.12 11 2.8 12 bulletin13 and said: Mr. Hoffman called RTD International right after receiving the October 13 service “[L]ook, we got your service bulletin. We are not set up, we’re not equipped to perform this work, so it would be in our best interest to see if you guys could perform the work and sell us the axles already done. And he basically told me he would look into it. And I want to say it was pretty much just left after that.”14 13 14 15 RTD Seattle had no certified welders in the maintenance department. Nor did they have time or 16 staff to pull off the duck axle boots to inspect each one for fractures outside of the mandatory 17 annual DOT “tear down” inspection that occurred once each fall after the busy season.15 18 19 20 21 22 11 Ryan Johnson Memo dated October 5, 2014. Exhibit E. Deposition Ryan Johnson. Exhibit C . (p. 37:5-25; 38:7-5; 39:18-25; 40:1-15; 55:9-25; 59:4-20 13 October 1, 2013 service bulletin. Exhibit A. 14 Deposition Isaac Hoffman. Exhibit B. (p.56:15-25; 57:1-6). 15 Deposition Isaac Hoffman. Exhibit B. (p.58-60). 12 23 24 25 THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 8 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 2.9 Mr. Johnson sent an email out on December 13, 2013 stating he only recently became 2 aware of service bulletins [Note: the axle housing service bulletin at issue in this case was sent 3 in October 2013 by RTD International]. “We have not done a large majority of the Service 4 Bulletins because I was only notified they existed 2 year ago and to be honest we have a lot of 5 work on our plate and SB’s tend to go to the back burner.”16 6 2.10 7 stretched to a point that I am uncomfortable giving them anything more to do…The shop is 8 moving beyond workload capacity and things are going unfinished, or being bypassed despite 9 every effort from Joe to squeeze out more and more from his guys.”1718 Mr. Johnson recalls sending an email March 9, 2014 that said: fleet maintenance staff is This conflicts with Jr. Johnson’s testimony that in his opinion RTD Seattle has “always 10 2.10 11 had an appropriate amount of maintenance personnel to carry out a safe operation.”19 12 III. PROCEDURAL HISTORY 13 On January 26, 2017, Dinh Plaintiff Group issued its third set of interrogatories and 14 discovery requests to RTD Seattle. On February 27, 2017, RTD Seattle provided responses and 15 refused to answer the following Requests for Production.20 16 1. Budgets for the maintenance department from 2012 to the end of 2015; 17 4. Profit-and-loss statements from January 1, 2012 through December 2015; 18 5. Cash flow statements from January 1, 2012 through December 2015; 19 6. Balance sheets from January 1, 2012 through December 2015. 20 21 22 16 Ryan Johnson email December 13, 2013. Exhibit H. Deposition Ryan Johnson. Exhibit C (p.82:19-83:17). 18 Ryan Johnson email March 9, 2014. Exhibit I. 19 Deposition Ryan Johnson. Exhibit C (p.136:17-24). 20 RTDS 1st Supp. Responses to Plaintiff’s Pattern Third Discovery. Exhibit L. 17 23 24 25 THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 9 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 2 On March 22, 2017, a CR 26(i) conference was held. See Declaration of Andrew Ackley. 3 Depositions have been set in April for RTD Seattle and RTD International upper 4 management, which anticipate production of the above financial items to further explore the 5 resistance of RTD Seattle to adequately staff its maintenance department. 6 7 IV. 1. ISSUES Are RTD Seattle’s budgets for its maintenance department and other general 8 financial matters discoverable where there is evidence that its maintenance department was 9 understaffed and underfunded, and where the maintenance department’s attempts to obtain 10 11 adequate staffing and funding were rebuffed by upper management for financial reasons? 2. Should RTD Seattle be compelled to respond to Dinh Plaintiff Group’s third 12 discovery requests within one week of the date of the Court’s order to allow Plaintiffs to prepare 13 for previously scheduled depositions? 14 IV. ARGUMENT AND AUTHORITY 15 16 17 18 19 20 21 22 23 24 25 A. Discovery Standard and Defendants’ Obligations of Good Faith. Civil Rule 26(b)(1) broadly defines the scope of discovery: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. (Emphasis added.) THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 10 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 The burden is on the party resisting discovery to move for a protective order. Fisons, 122 2 Wn.2d at 354 (“If the drug company did not agree with the scope of production or did not want 3 to respond, then it was required to move for a protective order”).21 Civil Rule 37(d) provides, 4 “The failure to act … may not be excused on the ground that the discovery sought is 5 objectionable unless the party failing to act has applied for a protective order as provided by rule 6 26(c).” Similarly, a defendant may not “unilaterally determine” what is relevant to a plaintiff’s 7 claim. Gammon v. Clark Equipment Co., 38 Wn. App. 274, 281, 686 P.2d 1102 (Div. 1 1984). 8 A party “cannot simply ignore or fail to respond to a request.” Magaña v. Hyundai Motor 9 America, 167 Wn.2d 570, 584, 220 P.3d 191 (2009) (sanctioning Hyundai, which failed to 10 respond and merely asserted “the requests were overbroad and not reasonably calculated to lead 11 to the discovery of admissible evidence”). At this point, Plaintiffs do not request sanctions, but 12 rather, good faith discovery responses. 13 B. The financial records sought are relevant or may lead to discovery of relevant information. 14 In its answer to discovery Defendants string cite cases from other jurisdictions for the 15 proposition that in the typical personal injury case financial information is not discoverable. But 16 those cases involve trying to ascertain the financial condition of a defendant for eventual post 17 judgment collection purposes. They are not on point. 18 The issue of financial and practical feasibility is so ingrained in civil litigation it is an 19 express exception to the prohibition of subsequent remedial measures in ER 407. Issues of 20 feasibility frequently arise in product defect and design cases. See, e.g., Falk v. Keene Corp., 21 21 22 A party should provide a privilege log for any material redacted or not produced on that basis. Cedell v. Farmers Ins. Co. of Washington, 176 Wn.2d 686, 695-96, 295 P.3d 239 (2013) (“The best practice is for the trial court to require a document log requiring grounds stated with specificity as to each document”). 23 24 25 THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 11 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 113 Wn.2d 645, 782 P.2d 974 (1989); Davis v. Globe Mach. Mfg. Co., Inc., 102 Wn.2d 68, 684 2 P.2d 692 (1984); Brown v. Quick Mix Co., 75 Wn.2d 833, 454 P.2d 205 (1969); Crittenden v. 3 Fibreboard Corp., 58 Wn. App. 649, P.2d 554 (Div. 1 1990). Such evidence is relevant and 4 admissible in premises liability design, maintenance and safety cases; see, e.g., Bartlett v. 5 Hantover, 84 Wn.2d 426, 526 P.2d 1217 (1974); Hull v. Enger Const. Co., 15 Wn. App. 511, 6 550 P.2d 692 (Div. 2 1976); as well as road design and maintenance claims. See, e.g., Reil v. 7 State, 4 Wn. App. 976, 484 P.2d 1150 (Div. 3 1971). Evidence of feasibility is relevant in 8 ordinary auto negligence cases as well. See, e.g., Wheeler v. Portland-Tacoma Auto Freight 9 Co., 167 Wn. 218, P.2d 101 (1932). As these cases reflect, an issue of feasibility can arise from 10 a claim by a plaintiff, as a defense, or in other issues like comparative fault. 11 Here, the issue was raised by Ride the Ducks of Seattle. The Dinh Plaintiff Group has 12 laid out substantial evidence of a company in constant conflict and crisis. Upper management 13 (Brian Tracey, Ryan Johnson, Mickie Coffman) were repeatedly apprised of safety shortfalls due 14 to inadequate funding, yet chose to disregard the pleas and warnings from the maintenance 15 manager. 16 Just four days before the bridge crash, a captain experienced issues on fated Duck 6 that 17 caused “the hair on my back to stand up.” She was rattled enough to pull over and request that 18 mechanics inspect under the vehicle. They arrived and looked underneath for maybe “two 19 minutes.” Not seeing anything (and how could they with no jack and in two minutes) she was 20 sent on her way. Then when she returned from her tour and tried to ask that mechanics take 21 another look she was pressured into scribbling out her absolutely valid concerns. 22 RTD Seattle did not provide enough mechanics or funding for maintenance. This is not a 23 suspicion of Plaintiffs. It is the spelled out position of RTD Seattle’s head of maintenance. If 24 THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 12 25 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 there had been enough mechanics on staff, Ms. Chido’s concerns would not have been squashed. 2 If there had been enough time to implement proactive measures like safety bulletins (to perhaps 3 catch this major manufacturing defect), maybe five people would not have died nor an additional 4 60 been injured. 5 But the needed money did not go to maintenance. There were not enough mechanics. 6 This was still peak “balls to the walls” season. Maintenance operated reactively instead of 7 proactively: “if it’s broke we fix it.” Upper management was running statistics on how much 8 down time for ducks was costing. They castigated maintenance for not having enough ducks up, 9 running, and making more money. 10 In refusing to produce the requested records, RTD Seattle relied on Cramer v. Van Parys, 11 7 Wn. App. 584, 500 P.2d 1255 (Div. 1 1972) for the proposition that financial information is 12 never relevant before judgment under any circumstances. Cramer is a landlord-tenant case based 13 on the landlord’s alleged failure to comply with local ordinance. Its holding related to the 14 admissibility of evidence of financial hardship at trial, relative to the duty codified by ordinance. 15 Hardship is a much narrower inquiry than that of financial and practical feasibility between RTD 16 Seattle and RTD International, and admissibility at trial is of course much narrower than 17 discoverability. But on top of the fact that Cramer is not in any way analogous, our Supreme 18 Court has expressly rejected Defendant’s contention that financial records are never relevant or 19 discoverable: “As Cramer implicitly recognizes, evidence of financial circumstances may be 20 material depending upon the situation.” Bodin v. City of Stanwood, 130 Wn.2d 726, 740, 927 21 P.2d 240 (1996). RTD Seattle’s categorical assertion that such records are not discoverable, as 22 “black-letter law,” is contradicted by actual law. For these reasons, the Dinh Plaintiff Group’s 23 motion should be granted. 24 THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 13 25 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 V. CONCLUSION 2 RTD Seattle was bringing in $9.6 Million a year but did not follow the recommendations 3 of its maintenance manager to increase its maintenance staff by two to four full time employees. 4 The Dinh Plaintiff Group should be able to explore this key issue further. 5 6 DATED this 29th day of March 2017. I certify that this memorandum contains 3,945 words, in compliance with the Local Civil Rules. 7 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 8 9 /s/ Karen K. Koehler Karen K. Koehler, WSBA #15325 Andrew Ackley, WSBA #41752 Counsel for Dinh Plaintiff Group 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE DINH PLAINTIFF GROUP’S MOTION TO COMPEL RIDE THE DUCKS OF SEATTLE’S FINANCIAL INFORMATION- 14 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 2 CERTIFICATE OF SERVICE I hereby certify that on March 29, 2017 I delivered a copy of the document to which this certification is attached for delivery to all counsel of record via electronic filing and/or email. 3 4 5 6 7 8 9 10 11 12 13 14 15 Patricia Buchanan Duncan Fobes Kasper Sorensen Nicholas A. Carlson Patterson Buchanan Fobes & Leitch, Inc, PS 2112 Third Ave Suite 500 Seattle, WA 98121 Counsel for Defendants Ride the Ducks Seattle and Bishops pkb@pattersonbuchanan.com dkf@pattersonbuchanan.com kxs@pattersonbuchanan.com nac@pattersonbuchanan.com jrf@pattersonbuchanan.com jds@pattersonbuchanan.com klo@pattersonbuchanan.com aka@pattersonbuchanan.com ktk@pattersonbuchanan.com hyk@pattersonbuchanan.com tns@pattersonbuchanan.com lmb@pattersonbuchanan.com amm@pattersonbuchanan.com amm@pattersonbuchanan.com jpl@pattersonbuchanan.com jsm@pattersonbuchanan.com 16 ali@pattersonbuchanan.com 17 Scott Wakefield Dan Kirkpatrick Fallon McKinley & Wakefield, PLLC 1111 Third Ave Suite 2400 Seattle, WA 98101 Counsel for Defendant Ride the Ducks International swakefield@fmwlegal.com dkirkpatrick@fmwlegal.com ahunt@fmwlegal.com jmonroe@fmwlegal.com 18 19 20 21 22 23 24 25 CERTIFICATE OF SERVICE - 15 Robert Tad Seder Vanessa Lee Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 Counsel for Defendant City of Seattle Tad.Seder@seattle.gov Vanessa.Lee@seattle.gov anne@elliott@seattle.gov tamara.stafford@seattle.gov belen.johnson@seattle.gov autumn.derrow@seattle.gov Scott.Kennedy@seattle.gov Kelly.Nakata@seattle.gov Lawrence M. Kahn Lawrence Kahn Law Group, PS 135 Lake Street, Suite 265 Kirkland, WA 98033 Counsel for Defendant Bishop lmk@lklegal.com; staff@lklegal.com; naomi@lklegal.com; STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 2 3 4 5 6 7 8 sandy@fmwlegal.com cerickson@fmwlegal.com kim@fmwlegal.com Steve Puz Attorney General Of Washington Torts Division 7141 Cleanwater Drive SW PO Box 40126 Olympia, WA 98504-0126 Counsel for Defendant State of Washington SteveP@atg.wa.gov; PatriciaT2@atg.wa.gov; RichardF@atg.wa.gov; TrishJ@atg.wa.gov; AmandaC@atg.wa.gov; Brian Sullivan Sullivan Law Group, PLLC 3209 Rockefeller Ave Everett, WA 98201-4316 Counsel for Defendant Bishop brian@sullivanpllc.com; Carissa@sullivanpllc.com Friedman Rubin Michael N. White, WSBA NO. 28284 Counsel for: Becker, Marva & Strassman, Catherine KCSC Cause No.: 16-2-20242-0 mike@michaelwhitelaw.com AGust@friedmanrubin.com Bradley G. Davis Law Office Pllc Bradley D. Davis, WSBA NO. 20764 Meredith A. Sawyer, WSBA NO. 33793 Counsel for: Bramley Graham & Barbara KCSC Cause No.: 16-2-13088-7 brad@bdavislaw.com Meredith@bdavislaw.com Alyta@BDavisLaw.com meeghan@bdavislaw.com Adler Giersch Ps Arthur D. Leritz, WSBA NO. 29344 Counsel for: Emery, Jennifer KCSC Cause No.: 15-2-28905-5 mdcarter@adlergiersch.com aleritz@adlergiersch.com Offices Of Brian H. Krikorian Pllc Brian H. Krikorian, WSBA NO. 27861 And Bradley Johnson Attorneys Bradley Johnson, WSBA NO. 22898 Counsel for: Gesner, Susan & Timothy KCSC Cause No.: 16-2-26078-1 bhkrik@bhklaw.com brad@bjattorneys.com Ressler & Tesh Timothy R. Tesh, WSBA NO. 28249 Allen M. Ressler, WSBA NO. 5330 Lee & Lee PS Nelson Lee, WSBA NO. 23590 Risa D. Woo, WSBA NO. 35411 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE OF SERVICE - 16 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 2 3 4 5 6 7 Counsel for: Fellores Arlette & Justin KCSC Cause No.: 1 6-2-05149-9 tim@resslertesh.com allen@resslertesh.com jon@resslertesh.com jonathan@resslertesh.com khanh@resslertesh.com Bethany C. Mito, WSBA NO. 42918 Counsel for: Iida, Yuki KCSC Cause No.: 16-2-1 071 I -7 Nelson.lee@leeandleelaw.com Risa.woo@leeandleelaw.com Bethany.lee@leeandleelaw.com d.sho.ly@leeandleelaw.com Adler Giersch Ps Arthur D. Leritz, WSBA NO. 29344 Counsel for: Johnson, Sarah KCSC Cause No.: 16-2-231 07-1 mdcarter@adlergiersch.com aleritz@adlergiersch.com Oseran Hahn Ps Paul A. Spencer, WSBA NO. 19511 Counsel for: Joshua, Kenny KCSC Cause No.: 16-2-23103-9 pspencer@ohswlaw.com Lee & Lee PS Nelson Lee, WSBA NO. 23590 Risa D. Woo, WSBA NO. 35411 Bethany C. Mito, WSBA NO. 42918 Counsel for: Oyama, Risa KCSC Cause No.: 16-2-1 071-2-5 Nelson.lee@leeandleelaw.com Risa.woo@leeandleelaw.com Bethany.lee@leeandleelaw.com d.sho.ly@leeandleelaw.com Law Offices Of Jongwon Yi LLC Jongwon Yi, WSBA NO. 31470 Counsel for: Park, Jae Young, et al. KCSC Cause No.: 16-2-26648-7 jy@jyilaw.com Coluccio Law Kevin Coluccio, WSBA NO. 16245 AND Evergreen Personal Injury COUNSEL Stephen L. Bulzomi WSBA NO. 15187 Counsel for: Reni, Ingerborg & Daniele KCSC Cause No.: 16-2-29684-0 kc@coluccio-law.com sbulzomi@epic-law.com Peterson Wampold Rosato Luna Knopp Michael S. Wampold, WSBA NO. 26053 Felix G. Luna, WSBA NO. 27087 Leonard Feldman, WSBA NO. 20961 Counsel for: Santos, Christiane KCSC Cause No.: 16-2-1 3663-0 wampold@pwrlk.com luna@pwrlk.com Feldman@pwrlk.com Phillips Law Group Pllc John W. Phillips, WSBA NO. 12185 Michael J. Madderra, WSBA NO. 48169 AND Corrie Yackulick Law Firm Pllc Pfau Cochran Vertetis Amala Darrell L. Cochran, WSBA NO. 22851 Counsel for: West, Rebecca, et al. KCSC Cause No.: 16-2-06389-6\ Darrell@pcvalaw.com 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE OF SERVICE - 17 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 2 3 4 5 Corrie J. Yackulic, WSBA NO. 16063 Counsel for: Wang Qian (Son g, Ru njie: Xia, Guirong) KCSC Cause No.: 16-2-0792 1-1 jphillips@jphillipslaw.com mmadderra@jphillipslaw.com kharrison@jphillipslaw.com corrie@cjylaw.com patricia@cjylaw.com clerk@cjylaw.com kevin@pcvalaw.com Law Offices Of James S. Rogers James S. Rogers, WSBA NO. 5335 Cheryl L. Snow, WSBA NO. 26757 Counsel for: Yates, Jeremy (Sato) KCSC Cause No.: 16-2-13906-0 jsr@jsrogerslaw.com csnow@jsrogerslaw.com leehwa@jsrogerslaw.com Hermann Scholbe Charles Hermann, WSBA NO. 6173 Preet Kode, WSBA No. 45424 Crystal R. Lloyd, WSBA NO. 46072 Counsel for: Yoon Na Ra KCSC Cause No.: 15-2-24364-1 charles@hslawfirm.com Preet@HSLawFirm.com crystal@hslawfirm.com 6 7 8 9 10 Justin@jsrogerslaw.com 11 12 DATED this 29th day of March, 2017. 13 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 14 15 /s/ Jesica A. McClure Jesica A. McClure, Paralegal 16 17 18 19 20 21 22 23 24 25 CERTIFICATE OF SERVICE - 18 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777