Attorneys representing victims and family members in the 2014 Oso landslide have accused state lawyers of orchestrating “a fraud” by covering up deleted emails sent between defense expert witnesses.
Attorneys representing victims and family members in the 2014 Oso landslide have accused state lawyers of orchestrating “a fraud” to keep secret any word of deleted emails sent among defense expert witnesses.
“The State has spent over $3 million in taxpayer dollars developing the opinions of its expert team, but that undertaking was launched 17 months ago with a secret pact by the State’s experts, with the blessing of the Attorney General, to systematically destroy emails and repeatedly deceive … about what they were doing,” the attorneys wrote in a scathing motion filed Tuesday in King County Superior Court.
A spokesman for the state Attorney General’s Office said Tuesday the plaintiff’s 30-page motion is still under review, and that a response will be made public when it is filed soon with the court.
A lawsuit seeking damages as a result of the slide is scheduled for trial this fall. It is expected to involve one of the largest tort claims in Washington, with the state, Snohomish County and Grandy Lake Forest Associates as defendants.
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The March 22, 2014, collapse of a hillside along the North Fork of the Stillaguamish River unleashed a devastating landslide that killed 43 people in the Steelhead Haven community.
A significant part of the case centers on actions by the state — including the construction of a cribwall and a sediment pond — that the lawsuit alleges increased the risks to residents.
The plaintiffs, in their brief, say they obtained some of the emails shared among the expert witnesses that mistakenly weren’t deleted. They allege the emails show the experts, who eventually expanded to a seven-person team, were “constantly shifting their story in service of the state’s defense.”
“What we will never know is the true depth of this deceit, because the vast majority of emails were destroyed and will never see the light of day,” the plaintiffs’ attorneys wrote.
The attorneys asked that Judge Roger Rogoff impose sanctions ranging from instructing jurors to draw a “negative inference” from the email deletions to entering a liability judgment against the state.
The state’s expert witnesses include a forestry hydrologist and engineers who collaborated on producing a report given to the court June 30.
The plaintiffs’ attorneys say they repeatedly alerted state attorneys that they expected to subpoena communications among the consultants. They allege the state’s fraud entailed trying to cover up the deletion of the emails.
The plaintiff’s attorneys learned of the deletions in an Aug. 2 deposition of Rune Storesund, who was part of the expert-witness team.
Storesund said the experts — in a spring 2015 meeting — decided to read and then destroy email communications between members of their group.
Storesund said two state attorneys were present at the meeting but were not involved in the discussion. He said he generally deleted emails within a day or so after being stored.
As discovery in the lawsuit continued in August, the plaintiff’s attorneys said they received an email file from another expert witness, Gunnar Schlieder, with no emails visible.
Computer-tech professionals examined the file and discovered there was a filter that hid messages marked for deletion. Once the filter was removed, attorneys could view a batch of 287 emails.
Schlieder said those emails still existed because he had forgotten to delete them.
Other expert witnesses testified that state lawyers advised them in May 2015 to change their tactics. They were told to copy email correspondence to state attorneys in an effort to make them privileged communications that could be kept from plaintiff’s attorneys.
Based on the review of the emails that were not deleted, the plaintiffs say the experts’ opinions on the slide shifted over time. For example, they cite a change in how the experts viewed the debris left behind after an earlier landslide in 2006, much of which was piled behind a cribwall built on state land.
Plaintiffs’ attorneys argue this material ended up liquefying during the 2014 landslide and burying the Steelhead Haven community. They said the cribwall — by holding material in place — increased the risk to the community. And, they said, the community should have been warned of that risk.
The plaintiffs’ attorneys contend the emails discussing the 2006 debris help buttress the argument that the material lodged behind the cribwall was the deadly leading edge of the 2014 slide.
However, the expert team’s final report submitted to the court in June reflected a different conclusion, the plaintiffs’ attorneys said.
That report said an analysis “fully supports the opinion that the presence or absence of the 2006 debris field did not make a material difference” in the runout of the 2014 landslide.