1 2 3 4 5 6 SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR KING COUNTY 7 8 JAMES EGAN, individually, NO. 18-2-14942-8 SEA 9 10 11 Plaintiff, PLAINTIFF JAMES EGAN’S MOTION TO COMPEL v. CITY OF SEATTLE, a Washington municipal corporation, 12 HEARING DATE: SEPTEMBER 14, 2018 Defendant. 13 14 ARTHUR WEST, 15 Plaintiff, 16 17 18 19 NO. 18-2-15000-1 SEA v. SEATTLE CITY COUNCIL, et al., Defendants. 20 21 I. INTRODUCTION 22 Plaintiff James Egan moves the Court for an Order requiring the City to produce full 23 responses to outstanding discovery requests, that were due on August 8, 2018, related to this 24 Open Public Meetings Act lawsuit. In response to very simple discovery requests, the City has 25 26 taken the position that there is basically no deadline for producing documents, and no obligation to explain what information continues to be withheld. The City has nonchalantly indicated that, PLTF EGAN’S MOTION TO COMPEL - 1 of 13 CONNELLY LAW OFFICES, PLLC 2301 North 30th Street Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax 1 in contradiction of CR 34, discovery obligations only require that documents be produced in 2 “installments” and in “due course” without further explanation. This lackadaisical manner of 3 4 production comes under the backdrop of the City having been caught red-handed withholding “smoking gun” type of discovery documents from both Mr. Egan and the Seattle Times. 5 Without judicial intervention, it is clear that the City will not comply with the civil rules 6 7 and feels no obligation to even try to do so. From the current batches of production, it is also 8 clear that other potentially incriminating documents, such as between the current Mayor and 9 her deputies, are actively being withheld. Consistent with CR 26, 34, 37 and Local Rule 37, 10 the City should be ordered to complete document production within five (5) business days. The 11 document production should include pending responses from Mayor Jenny Durkan, and her 12 deputies. In the alternative, the City should be obligated to provide some explanation as to: (1) 13 14 what has not been produced, (2) a process for production, and (3) a reasonable deadline. The 15 undersigned attorneys attempted to come to an agreement consistent with this demand for relief, 16 but the City’s attorneys declined the opportunity to do so. For these reasons, this motion to 17 compel should be granted. 18 II. 19 20 21 22 BACKGROUND On the day before the “head tax” repeal vote, June 11, 2018, news reports indicate that the Seattle Times submitted a Public Records Request to the City seeking “any and all written communications” related to the head tax issue.1 This Open Public Meetings Act lawsuit was 23 filed on June 14, 2018.2 The claim alleges violations on the Open Public Meetings Act related 24 to the repeal of the “head tax” and a potential recall effort against former, and disgraced, Mayor 25 26 1 Exhibit 2 to Declaration of Beauregard 2 Docket No. 1, Cause Number 18-2-15000-1 PLTF EGAN’S MOTION TO COMPEL - 2 of 13 CONNELLY LAW OFFICES, PLLC 2301 North 30th Street Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax 1 Ed Murray.3 On or about July 1, 2018, Mr. Egan served the City with the following discovery 2 requests: 3 REQUEST FOR PRODUCTION NO. 1: Please produce any and all documentation for every communication identified in response to these interrogatories related to the repeal of the ordinance commonly known as the “head tax” including all emails, written communications, draft public statements, related cell phone records, internal correspondence, and any form of communication whatsoever. 4 5 6 7 9 REQUEST FOR PRODUCTION NO. 2: Please produce any and all forms of communication, including emails and cell phone logs, related to Sally Bagshaw’s communications with anyone employed by a government agency related to any potential recall vote as against former Mayor Ed Murray.4 10 The requests were due on August 1, 2018.5 By way of an email exchange, counsel for the 11 parties agreed to modify the due date to August 8, 2018.6 The parties did not agree to any other 8 12 form of an extension.7 13 On August 8, 2018, the City produced discovery responses which included 2067 14 15 separate documents.8 The City offered no indication that any other documents remained 16 unproduced, and did not ask for any more extensions, and gave the misimpression that 17 discovery was complete.9 On or about August 23, 2018, the undersigned attorneys learned from 18 Lewis Kamb of the Seattle Times that the City continued to withhold extremely pertinent 19 records from the media and Mr. Egan.10 The documents included an extremely incriminating 20 21 22 23 24 25 26 3 Id. 4 Exhibit 1 to Declaration of Beauregard 5 Id. 6 Id. 7 Id. 8 Id. 9 Id. 10 Exhibit 2 to Declaration of Beauregard PLTF EGAN’S MOTION TO COMPEL - 3 of 13 CONNELLY LAW OFFICES, PLLC 2301 North 30th Street Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax 1 tally sheet from a staff member in Lorena Gonzalez’s office identified as Cody Reiter.11 Those 2 same documents were produced by the City to a “blogger” named Kevin Schofield on August 3 4 10, 2018: “The screen shot of the text message that Lewis used in his story is in the 8-10-18 drop…Kevin.”12 Both the undersigned attorneys and the Seattle Times were never informed, 5 6 by the City, of the existence of the documents: 9 The city also did not disclose the records to the Times when responding to a June 11 public-records request seeking “any and all written communications” related to the head-tax issue. The provided to The Times on July 31 the same batch of text messages later disclosed to Egan and informed the newspaper: “This completes the City’s response and closes your request.”13 10 The Seattle Times was expressly informed that no more documents existed,14 such as those 7 8 11 produced by the City to Mr. Schofield on August 10, 2018.15 12 As required under the CR 26(i) meet and confer obligations, on August 24, 2018, the 13 14 15 parties met and conferred about the lack of document production. 16 As noted in the Seattle Times, the City’s attorneys claimed that they only had an obligation to start producing records 16 on August 8, 2018.17 One City Attorney, Michael Ryan, asserted that the following response 17 was adequate under the civil rules: 18 Third, you asked us to provide you a date certain by which every document will be produced. Because discovery is still ongoing, and we are still in the process of collecting information, we cannot provide any such date with the type of mathematical certainty that you are requesting and 19 20 21 22 23 24 25 26 11 Id. 12 Exhibit 6 to Declaration of Beauregard 13 Exhibit 2 to Declaration of Beauregard 14 According to the Public Records Act, the City was required to not only produce the records, but to also provide a reasonable timeline for production: “Acknowledging that the agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives has received the request and providing a reasonable estimate of the time the agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives will require to respond to the request.” RCW 42.56.520(1)(c). 15 Id. 16 Exhibit 3 to Declaration of Beauregard 17 Id. PLTF EGAN’S MOTION TO COMPEL - 4 of 13 CONNELLY LAW OFFICES, PLLC 2301 North 30th Street Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax believe the Civil Rules demand. To be clear, our Office takes our discovery obligations very seriously. We are happy to keep you informed of our progress and provide you with additional information as to a completion date once we are able to determine such a date. As you can appreciate, discovery is an ongoing process.18 1 2 3 4 The City’s attorneys further claimed that they could produce documents in “installments” and 5 6 7 had no obligation to explain (1) how many more records were forthcoming, (2) the process for producing records, or (3) a timeline for production.19 The City’s attorneys did promise another 8 second “installment” by August 28, 2018 related to the head tax, and another third “installment” 9 related to the Murray matter by August 31, 2018.20 10 11 12 The City’s attorneys offered no rational explanation for failing to produce the records that were given to Mr. Schofield on August 10, 2018, but not to the Seattle Times or Mr. Egan on August 8, 2018.21 Media outlets report that this form of mischievous document production 13 14 15 16 on the part of the City is common: “Nixon said these delayed public record releases follow a recent pattern in government, where agencies try to bury damning documents in lengthy delays.”22 The same insightful news article observed: As if these records aren’t damning enough, the way these smoking guns emerged even further erodes public trust. The city appears to have withheld, or at least intentionally delayed the release of these text messages. Kamb said he had a public record request of his own for these documents but that request was closed before the city handed over Johnson and González's text messages.23 17 18 19 20 21 22 23 24 25 26 18 Id. 19 Id. 20 Id. 21 Id. 22 Exhibit 7 to Declaration of Beauregard 23 Id. PLTF EGAN’S MOTION TO COMPEL - 5 of 13 CONNELLY LAW OFFICES, PLLC 2301 North 30th Street Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax 1 On August 28, 2018, the City produced an additional second “installment” of 35,542 2 documents related to the “head tax” issue.24 Accompanied with the documents is a letter 3 4 promising records in “installments” and in “due course” with no further explanation for what is being withheld or any form of a timeline.25 Among the other documents that were produced 5 6 7 8 to the blogger, Mr. Schofield, and in the batch of 35,542 late documents are text messages proving that Sally Bagshaw effectively killed the $50-million head tax spending plan by way of a secret tally: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 26 24 25 26 24 Exhibit 4 to Declaration of Beauregard 25 Id. 26 Exhibit 9 to Declaration of Beauregard PLTF EGAN’S MOTION TO COMPEL - 6 of 13 CONNELLY LAW OFFICES, PLLC 2301 North 30th Street Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax 1 Other emails, that were evidently withheld from Mr. Egan and the Seattle Times, prove that 2 Gonzalez was knowingly circulating emails in violation of the OPMA: “I couldn’t include you 3 on the chain because of the OPMA...”27 4 On August 30, 2018, an additional eighteen (18) records were produced (third 5 6 7 “installment”) with a cover letter promising more records in “due course.”28 Those documents also paint certain elected officials in a very unflattering light and illuminate the secret meeting 8 process that violated the OPMA.29 Referring to the Mayor being in a “honeymoon” period, 9 Gonzalez explains that it will “Not be long before shit will be all over her face too.”30 The text 10 messages to Gonzalez, from an unidentified source, responded: “And we should allow an 11 12 opportunity for that to happen rather than attempting to own it. It’s time for us to swallow our medicine. ‘We’ fucked this up. Royally.”31 13 The unidentified recipient of the text messages further explained, in relation to an 14 15 upcoming major levy, that he/she is in “‘protect the Ed Levy mode.’”32 There is a $600-million 16 levy on the upcoming ballot in November of 2018.33 Many citizens believe that the head tax 17 was repealed in order to protect the education levy. If so, the citizens had/have a right to know 18 if this was a primary motivation underlying the Council’s sudden flip on the head tax. As is 19 becoming ever clearer, the Council doesn’t feel obligated to adhere to the OPMA in order for 20 21 the public to have these answers, and to decide who to elect to the City Council in the future. 22 23 24 25 26 27 Exhibit 10 to Declaration of Beauregard 28 Exhibit 5 to Declaration of Beauregard 29 Id. 30 Id. 31 Id, Pages 034624-25 32 Id, Page 034626 33 Id. PLTF EGAN’S MOTION TO COMPEL - 7 of 13 CONNELLY LAW OFFICES, PLLC 2301 North 30th Street Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax 1 This unlawful pattern permeates every action of the Council, including recent clandestine 2 actions related to protecting Ed Murray from a recall/impeachment type of effort. 3 4 Notably, shortly after the sex abuse lawsuit was filed against Ed Murray, on August 10, 2017, with no prior public meeting, Bruce Harrell read aloud the Council’s 5 6 7 collective/predetermined decision to remain silent about the matter: “My Council colleagues and I have no intention of commenting on matters of pending or potential litigation. We believe 8 that it is critically important that, together, we remain committed to the business of 9 governing…to provide for transparency, accountability, and ethics in governance and civil 10 service; to foster fiscal responsibility; to promote prosperity and to meet the broad needs for a 11 12 healthy, growing City.’”34 Other documents related to a subsequent Ed Murray impeachment effort that occurred in July of 2017 cross-reference other records that have not been produced.35 13 14 15 Specifically, text messages between Councilmember Sally Bagshaw and Chief of Staff Mike Fong demonstrate that key private tally’s that were “circulating and being edited” have never 16 been produced.36 Fong, Mayor Durkan’s current deputy mayor, even asked for “a copy” from 17 Bagshaw.37 These same documents were previously requested by the Seattle Times in 2017.38 18 The potentially incriminating documents remain in the possession of the City Attorney’s 19 Office.39 20 21 22 23 24 25 26 34 Exhibit 8 to Declaration of Beauregard 35 Exhibit 5 (Part 2) to Declaration of Beauregard 36 Id, Page 034613 37 Id. 38 Id. 39 Id. PLTF EGAN’S MOTION TO COMPEL - 8 of 13 CONNELLY LAW OFFICES, PLLC 2301 North 30th Street Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax 1 At no point has the City explained what else is being collected and/or a timeline for 2 production.40 The City declared publicly that “‘Anyone with a basic understanding of the 3 4 litigation process would know that discovery is produced in installments,’” with no further commitment for clarity or process.41 The City basically argues that, according to CR 26-34, 5 6 7 the thirty (30) day deadline for the production of documents is when the process starts, and then runs into perpetuity, with no further obligations to timely complete the process.42 Furthermore, 8 the parties have agreed to start taking depositions with Cody Reiter having been scheduled for 9 September 20, 2018. The Xerox copy nature of the tally form makes it appear as though Mr. 10 Reiter might have information leading to the discovery of a succession of Open Public Meetings 11 violations as a matter of common and accepted practice.43 Mr. Egan is unable to proceed with 12 this lawsuit, including taking depositions and/or responding to motions to dismiss, without 13 14 15 16 knowing when or if the City will ever provide a complete disclosure of records. Additionally, it is clear that the most pertinent records from the Mayor’s Office, as between Jenny Durkan and her deputies, have yet to be produced. 17 III. 18 19 EVIDENCE RELIED UPON Mr. Egan relies upon the attached declaration of Lincoln C. Beauregard along with the exhibits attached thereto. The undersigned attorneys assert under penalty of perjury that the 20 relevant factual representations herein are accurate. 21 22 23 24 25 26 40 See Exhibits 3, 4, and 5 to Declaration of Beauregard 41 Exhibit 2 to Declaration of Beauregard. The spokesperson for the City Attorney, Dan Nolte, does not appear to be a registered member of the WSBA, or to have even a fundamental understanding of the civil rules. Regardless, Mr. Nolte was dispatched to lie to the public about the workings of CR 34. 42 Id. 43 Exhibit 7 to Declaration of Beauregard PLTF EGAN’S MOTION TO COMPEL - 9 of 13 CONNELLY LAW OFFICES, PLLC 2301 North 30th Street Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax 1 IV. 2 3 4 ARGUMENT In accord with CR 26, 34, 37, and Local Rule 37, Mr. Egan moves the Court for an Order requiring the City to provide complete discovery responses to the requests at issue. See also Fisons v. Washington State Physicians Insurance Exchange & Association, 122 Wash. 2d 5 6 7 299, 858 P.2d 1054 (1999); 3A Wash. Prac., Rules Practice CR 34 (6th ed.). According to CR 34, all of the records were due, by agreement, on August 8, 2018: 8 CR 34(b)(3) Responses and Objections. 9 (A) Time to Respond. The responding party shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 40 days after service of the summons and complaint upon that defendant. The parties may stipulate or the court may allow a shorter or longer time.44 10 11 12 The document production process certainly allows parties to agree to extend production 13 deadlines. Id. The City is certainly allowed to take a reasonable amount of time to produce 14 records. Id. However, the letter and spirit of the rule required the City to produce all records 15 16 17 18 19 by August 8, 2018. Id. In the alternative, the City had an obligation to inform Mr. Egan that more documents were forthcoming, describe the nature of the remaining production, and come to an “agreement” as to a production timeline. Id. This is the same expectation for document production under the Public Records Act.45 Government agencies, like any other litigants, are 20 expected to comply with discovery rules and discovery orders. Perry v. Golub, 74 F.R.D. 360 21 (1976). 22 Contrary to the letter and spirit of the civil rules, the City’s attorneys have taken the 23 position that all they need to do is say that production is “ongoing” in unspecified “installments” 24 25 26 The City misleadingly commingles the obligation to “supplement” under CR 26(e) with the basic duty of production under CR 34. 44 45 See RCW 42.56.520(1)(c) PLTF EGAN’S MOTION TO COMPEL - 10 of 13 CONNELLY LAW OFFICES, PLLC 2301 North 30th Street Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax 1 that will purportedly be produced in “due course” with no agreed timeline or further 2 explanation.46 The City evidences a belief that discovery responses and completion can occur 3 4 whenever the responding officials feel like it, such as the last day of the discovery period after key employees, such as Cody Reiter, have already been deposed.47 At the same time, the City 5 6 7 produced many of the same highly incriminating documents to a blogger on August 10, 2018, but withheld the same records from this litigation process and the Seattle Times.48 The City 8 already scheduled a summary judgment hearing for November 16, 2018, but refuses to complete 9 document production, or even provide a discovery plan in that regard. 49 Further discovery 10 conferences would prove unfruitful because the City’s attorneys have taken the position that 11 12 there is no obligation to provide some sort of discovery plan, or to even propose a deadline for completion other than an unspecified “due course.”50 Mr. Egan, and the general public’s right 13 14 to know, is being severely prejudiced in this way. V. 15 CONCLUSION 16 Based upon the facts and law set forth herein, Mr. Egan respectfully requests that the 17 Court order compliance with CR 34. The City should be required to fully respond to the 18 19 discovery requests at issue within five (5) days in the absence of some clear articulation of why that cannot occur. Mr. Egan requests an order requiring that the City comply as follows: 20 THIS MATTER having come on regularly before the Court based on Plaintiff Egan’s Motion To Compel, and the Court having reviewed Plaintiff’s motion, Defendant’s responsive pleadings, and the files herein: 21 22 23 24 25 26 46 See Exhibits 3, 4, and 5 to Declaration of Beauregard 47 Id. 48 Exhibit 2 to Declaration of Beauregard 49 Docket No. 27 50 See Exhibits 3, 4, and 5 to Declaration of Beauregard PLTF EGAN’S MOTION TO COMPEL - 11 of 13 CONNELLY LAW OFFICES, PLLC 2301 North 30th Street Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax 1 It is now therefore, ORDERED that, within five (5) days of the date of this Order, the City of Seattle shall fully respond to the following discovery requests: 2 3 REQUEST FOR PRODUCTION NO. 1: Please produce any and all documentation for every communication identified in response to these interrogatories related to the repeal of the ordinance commonly known as the “head tax” including all emails, written communications, draft public statements, related cell phone records, internal correspondence, and any form of communication whatsoever. 4 5 6 7 REQUEST FOR PRODUCTION NO. 2: Please produce any and all forms of communication, including emails and cell phone logs, related to Sally Bagshaw’s communications with anyone employed by a government agency related to any potential recall vote as against former Mayor Ed Murray. 8 9 10 Additionally: (1) in response to Mr. Egan’s Request for Production No. 1, the City of Seattle shall include and produce all responsive materials including those in the possession and/control of Mayor Jenny Durkan and any and all of her deputies; 11 12 13 (2) in response to Mr. Egan’s Request for Production No. 2, the City of Seattle shall include and produce all related documents that Sally Bagshaw referenced as “circulating” that have not yet been produced. 14 15 The evidentiary record indicates that the City’s elected officials are actively evading 16 17 adhering to the law in order to try and avoid losing this Open Public Meetings Act lawsuit and 18 being embarrassed with the truth. If the City truly has a plan and process for producing records, 19 it should be no problem to simply explain (1) what remains to be done, and (2) when it will 20 likely be accomplished. Mr. Egan cannot confidently move into the deposition phase of this 21 litigation until the City’s document production is complete. Mr. Reiter is currently expected to 22 23 24 25 be deposed on Friday, September 20, 2018, and will likely uncover a system of further violations. Thus far, the City’s response regarding document production has essentially been that “you will get what you get when we decide that we will give it to you...in due course.”51 26 51 See Exhibits 3, 4, and 5 to Declaration of Beauregard PLTF EGAN’S MOTION TO COMPEL - 12 of 13 CONNELLY LAW OFFICES, PLLC 2301 North 30th Street Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax 1 For these reasons, judicial intervention is necessary, and this motion to compel should be 2 granted.52 3 DATED this 4th day of September, 2018. 4 CONNELLY LAW OFFICES, PLLC 5 Lincoln Beauregard By__________________________________ Lincoln C. Beauregard, WSBA No. 32878 Julie A. Kays, WSBA No. 30385 Attorneys for Plaintiffs 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 52 In accord with CR 37, Local Rule 37, and Fisons, Mr. Egan reserves the right to return for sanctions and fees, if appropriate. PLTF EGAN’S MOTION TO COMPEL - 13 of 13 CONNELLY LAW OFFICES, PLLC 2301 North 30th Street Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax