More text messages than previously known were deleted from then-Mayor Jenny Durkan’s phone in the months after Seattle’s 2020 racial justice protests, and those additional texts — nearly 200 of them — were deleted manually, according to a new forensic report. The report also says the texts of several other key officials were destroyed through phone resets clustered within the same month.
The report was contained in a filing this week from business owners and residents suing the city over damages allegedly incurred during June 2020’s weekslong Capitol Hill Organized Protest. The only plausible explanation for the loss of so many texts, including many after the CHOP litigation began that summer, according to the filing: “These officials intended to deprive Plaintiffs of crucial evidence.”
The filing by the plaintiffs, including Hunters Capital, Madrona Real Estate Services and Bergman’s Lock and Key Services, accuses City Hall of “spoliation of evidence” and asks the judge in the federal court case to impose sanctions by finding the city liable for the allegations in the case or at least by advising a future jury to infer spoliation.
It’s the latest twist in a serpentine saga that emerged in the wake of Seattle’s controversial handling of the protests, roiled the last months of Durkan’s tenure and could yet prove costly for taxpayers, depending on what happens in court.
Had they been retained, the lost texts might shed more light on how the city was controversially run at a historic moment. Durkan didn’t seek reelection last year and was replaced by current Mayor Bruce Harrell.
City Attorney Ann Davison’s office responded with court filings of its own this week, accusing some of the plaintiffs themselves of deleting their own texts about CHOP. The city is asking the judge to toss out the case based on multiple points, including the argument that City Hall sought to de-escalate the CHOP rather than neglecting it.
In a statement, a spokesperson for Durkan said the former mayor “believes strongly in the public’s right to know what their government is doing” and called the new filing by the plaintiffs “a purposely inaccurate and misplaced ‘Hail Mary’ attempt to save a case that lacks merit.” The judge earlier declined to designate the lawsuit as a class action and some plaintiffs have left the case.
Durkan’s texts were initially disclosed as missing to the public by whistleblowers in her office in early 2021, and new information has emerged in bits since then. In July, King County Prosecutor Dan Satterberg asked Sheriff Patti Cole-Tindall to put together an investigation into the matter. Cole-Tindall’s office said it had no update to share earlier this week.
Under public records law and legal rules, certain texts must be preserved. Anyone who willfully destroys a public record that’s supposed to be kept is guilty of a felony under state law, punishable by up to five years in prison and $1,000 fine.
A previous forensic analysis, commissioned by City Hall in response to lawsuits over how officials managed the June 2020 protests and released this February, indicated that Durkan’s phone was set in July 2020 to automatically delete texts after 30 days, resulting in the loss of thousands of messages from the preceding months. That analysis, which cost taxpayers more than $400,000, indicated that Durkan’s phone had also been set to delete texts stored in the cloud.
The Seattle Times reported more than a year ago that texts from a number of other officials in addition to Durkan, including the city’s police and fire chiefs, were missing or not yet recovered from the same crucial period, when police deployed tear gas against protest crowds and abandoned the East Precinct on Capitol Hill.
At the time, the city attorney’s office said texts were missing from Durkan, then-police Chief Carmen Best, fire Chief Harold Scoggins, assistant police chief Eric Greening, police chief strategy officer Chris Fisher, emergency operations official Kenneth Neafcy and public utilities official Idris Beauregard.
The new forensic report adds to the picture. In addition to 5,746 of Durkan’s texts destroyed by the 30-day automatic deletions prior to June 25, 2020, the report says 191 more were lost later, between June 25 and Nov. 16 that year. It says those were lost due to manual deletions, rather than the 30-day setting. And it says the phones of multiple other officials who were involved with the protests, across several city departments, were each reset in October 2020.
The report says 27,138 texts were deleted from Best’s phone and 15,843 from Fisher’s phone from periods including the summer of 2020. It notes a cluster of factory resets, which wipe away data, on the phones of key officials over a span of weeks: Scoggins on Oct. 8, Beauregard on Oct. 9, Greening on Oct. 26 and Neafcy on Oct. 27.
Best has said in a deposition that she periodically deleted her texts. The city has said the factory resets were needed because the officials were “locked out” of their phones, due to passcodes or other problems.
Neither forensic analysis sought to determine who deleted the texts from Durkan’s phone. Durkan has said she did not delete her texts and that most of her deleted texts have since been reproduced from other phones. She has said problems arose with her phone after she dropped it in a tidepool on a Fourth of July holiday.
Durkan’s spokesperson described the texts that have been recovered as “mostly innocuous and irrelevant” and also “wholly consistent” with her public statements at the time
But texts between the key officials haven’t been recovered, and the new forensic report by Leatha Consulting LLC for the plaintiffs in the CHOP lawsuit says the deletions “each resulted in a loss of text messages that the City had an obligation to preserve” and says technology problems could have been resolved without resetting phones and losing texts.
Durkan has directed responsibility at the city’s information technology department, noting the department configured a new phone for her on July 9, 2020, in the period during which her text-retention setting was changed to 30 days.
But the city department has said it’s not its practice to change retention settings, and both forensic analyses have identified July 4, 2020, as the date when her phone was set to delete texts stored in the cloud; Durkan has said in a deposition that no one else handled her phone that day.
Best, who retired from her position in September 2020, didn’t immediately comment Friday. Davison’s office declined to comment.
In May, City Hall settled a public records lawsuit filed by The Seattle Times over the missing text messages for nearly $200,000.