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AG’s Office, DSHS must pay attorney fees in case over developmentally disabled woman’s care

For the second time in less than two months, the Washington state Attorney General’s Office and state Department of Social and Health Services have been ordered to pay penalties for withholding documents in a lawsuit over a developmentally disabled woman’s care.

On Friday, King County Superior Court Judge Michael K. Ryan ordered the state to pay $122,555 for the plaintiff’s attorney fees incurred so far in the case.

“Through its sanction order, the court has already punished DSHS and the AGO with a punitive sanction of $200,000, which hopefully educates them and others as to the importance of complying with discovery and deters others from engaging in similar conduct,” the court wrote.

“Likewise, the court finds that (the plaintiff’s) counsel will be adequately compensated by an award of $122,555, which is in addition to other fees that may still be outstanding from the court’s sanction order as well as the requirement that DSHS and the AGO cover the entirety of the costs of the work being done by the Special Master.”

The plaintiff initially filed the lawsuit against the state in November 2021 for failing to provide adequate case management and failing to investigate allegations of abuse and neglect.

The fines levied against the AG’s Office and DSHS will be paid out of the taxpayer-funded State Insurance Liability Account, according to Brionna Aho, a spokesperson for the AG’s Office.

A motion requesting the plaintiff’s attorney fees was filed on April 28.

While the past fees total $122,555, lawyers in the case argued for a premium on the regular rate because of the “contingent nature of this litigation, the risk borne by Plaintiff’s attorneys, DSHS and the Office of the Attorney General’s continuing discovery violations, and the Office of the Attorney General’s failure to reach an agreement on past attorney’s fees.”

In total, the plaintiff’s attorneys requested $214,471 in past fees in the filing.

The court agreed that the AG’s office and DSHS should split the cost of the fees, but the court denied the motion for additional fees.

While the AG’s Office wrote in a May 5 filing that it did not oppose paying the plaintiff’s past attorney’s fees, they said that they did not believe a premium on the regular rate for the cost of the plaintiff’s attorneys was warranted, and asked the judge to reject the request for the additional fees.

Those fees were not warranted because the quality of the opposing counsel’s work did not justify the premium rate, and the premiums are “inappropriate in an award for fees as a result of a sanctions motion,” the state argued.

A declaration in support of the plaintiff’s motion was filed by David P. Moody, the supervising attorney hired to represent the plaintiff, on May 9.

The plaintiff is “so profoundly impaired” that the court previously granted her a protective order from testifying in the litigation as “she cannot understand the administration of a judicial oath,” Moody wrote in the declaration.

“From an evidentiary standpoint, representing developmentally disabled clients is incredibly challenging. (The plaintiff) cannot tell us very much,” the attorney noted. “This makes the exchange of written discovery even more important, especially when the defendant has custody and control of the client’s records.”

Moody wrote that he has decades of experience as an attorney opposing the AG’s Office and that in the last few years “troubling patterns have emerged” with it becoming “extraordinarily difficult to obtain discovery from The Office of the Attorney General.”

“A pattern of arrogance, nonchalance, and gamesmanship has become routine,” he said.

Moody continued that the concealment of records caused litigation in the lawsuit to grind to a halt, and that even worse, “if the effort to conceal is successful, (the plaintiff’s) claims might be dismissed because critical evidence never sees the light of day.”

“When the Office of the Attorney General conceals documents, as it has done in this litigation, we lose time and we incur opportunity costs,” the attorney wrote. “It places us in a position where, without filing discovery motions (to obtain what [the plaintiff] was entitled to all along), we are unable to make informed decisions. To put a finer point on it, due to the malfeasance of The Attorney General’s Office in (the plaintiff’s) case, we will lose several months of time during which we could be working for our other clients.”

The AG’s Office and DSHS were first sanctioned $200,000 for discovery violations in the case by the court in late March for withholding nearly 11,000 documents that “substantially prejudiced the plaintiff in preparing for trial,” according to Judge Ryan.

Those documents were found after the AG’s Office moved for a summary judgment on the plaintiff’s claims, while also seeking to prevent the plaintiff from taking a deposition that would have addressed discovery in the case, among other things.

Days after the judge sanctioned the agencies for those discovery violations, the AG’s Office admitted that it found more than 100,000 pages pertaining to the same case that were not previously turned over.

Discovery Master Russell Aoki was then appointed by the judge to review all briefings and all discovery produced by DSHS. Aoki is appointed at the expense of the AG’s Office and DSHS at a billable rate of $500 per hour.

McClatchy contacted both the AG’s office and DSHS for comment in response to criticism that the offices had a pattern of withholding records.

The AG’s Office told McClatchy that they were “moving forward with the special master process” and referred McClatchy instead to an April 3 letter that was submitted to the court.

“Again, the State deeply regrets the errors in discovery in this case and is working to rectify them,” Deputy Attorney General Jennifer S. Meyer wrote. “We are committed to working with the special master and the other parties to ensure that the State has fully satisfied its discovery obligations.”

Adolfo Capestany, the senior communications director for DSHS, simply told McClatchy that DSHS agreed with the AG’s Office statements and that they had nothing further to add.

Moody added in his May 9 declaration that he thinks about the solo practitioners and small firms who have had to litigate against the state.

“One wonders how many cases have been dismissed on summary judgment where evidence was never disclosed, where the Office of the Attorney General claimed bogus privileges, tossed together worthless privilege logs, and where the responsibility to respond to discovery was farmed out to staff members,” Moody wrote. “One also wonders why this occurs repeatedly in cases involving our state’s most vulnerable citizens. It does not appear to be a coincidence.”