Post navigation

Prev: (09/29/22) | Next: (09/29/22)

‘Spoliation of Evidence’ — CHOP lawsuit judge asked to rule against City of Seattle over deleted texts — UPDATE

Lawyers for the group of Capitol Hill real estate developers, property owners, and businesses suing the City of Seattle over its handling of the 2020 CHOP protests are asking a judge to bring the federal lawsuit to an end and rule in their favor in what could be a multimillion judgement over thousands of missing text messages from top officials including then-Mayor Jenny Durkan, her Seattle Police Chief Carmen Best, and Seattle Fire Chief Scoggins.

In the “Spoliation of Evidence” motion filed this week, lawyers representing the group say that revelations about the deleted texts should result in sanctions against the city in the case and either require an “adverse inference” instruction to the jury at trial and “monetary sanctions,” or an immediate end to the suit in a default judgment for the plaintiffs.

In the motion, lawyers representing the property owners and businesses claiming more than $3 million damages from the summer 2020 protest camp over “due process and takings violations, negligence, and nuisance resulting in business loss, property damage, and other harms” say their claims “depend on evidence such as communications between city policymakers.”

“Yet Plaintiffs will never be able to access many of these critical communications because Seattle Mayor Durkan, Police Chief Best, Fire Chief Scoggins, and four other key officials deleted their text messages, well after this case began and in blatant disregard of their duties as public officials to preserve their texts,” lawyers from the Morgan, Lewis and Bockius firm representing the group write. “The City’s explanation for the delay and why the officials deleted the texts—using factory resets, 30-day auto deletions, and manual deletions—are either non- existent or incredible.”


UPDATE 1:45 PM: The Seattle City Attorney’s office has immediately fired back in the case not by disputing the allegations about the deleted texts from the mayor and her top officials — which City Attorney Ann Davison’s office says will come — but by accusing the real estate and business owner group of also intentionally deleting texts and emails. ** More at the end of this report **

UPDATE 9/30/2022 8:45 AM: NBC has reviewed the forensic analysis submitted to the court by the plaintiffs and reports that 191 texts were manually deleted from Durkan’s phone. NBC reports Durkan said through a spokesperson’s statement that “most of her texts, which were ‘mostly innocuous and irrelevant,’ were recovered.” Durkan previously denied intentionally deleting any text messages.


Thanks to a whistleblower, revelations about the missing texts from city officials grew in the months following CHOP amid investigations into the protests and the city’s response to the Black Lives Matter and anti-police movements as officials and technical teams at City Hall changed their stories and more evidence was recovered. Even two years later, new evidence continues to come to light including revelations that Durkan and Best were more closely involved with the decision to abandon Capitol Hill’s East Precinct headquarters than had previously been disclosed.

In the new motion in the lawsuit brought by the collection of Cal Anderson Park-area property owners and businesses, lawyers say that a combination of factory resets, 30-day auto deletions, and manual deletions wiped away key evidence and that forensic efforts to recreate some of the communication between officials from that summer of 2020 are inadequate.

According to the motion, phones of Durkan, Best, and SPD top brass Chris Fisher were set to automatically delete texts after 30 days. Additionally, the motion calls out Durkan, Best, and Idris Beauregard, a Seattle Public Utilities representative who found himself as the default face of City Hall during his regular interactions at the protest site, for manually deleting “hundreds or thousands of texts each.”

Thanks to Kevin Schofield to alerting CHS to the new filing

The federal civil rights case led by Capitol Hill-based developer Hunters Capital and a group of real estate and business plaintiffs is seeking to be determined financial damages for a group of businesses in the Pike/Pine and 12th Ave areas around the camp and protest zone over the city’s alleged “deliberate indifference.” In May, a judge ruled against a motion to form a class action that would have allowed other businesses and property owners to join the long running case.

The summer 2020 lawsuit was filed as the CHOP camp was still occupied with the list of plaintiffs growing to including developers Hunters Capital, Redside Partners and Madrona Real Estate, businesses Cafe ArgentoNorthwest LiquorBergman’s Lock and Key, Car Tender, Tattoos and Fortune, Sage Physical Therapy, Richmark Label, and property owners including Onyx Homeowners Association as well as a handful of individual residents. After CHOP’s clearance, E Pine’s Rancho Bravo, 12th and Pike’s Sway and Cake boutique, and Nagle’s Cure cocktail bar joined the roster.

Now in its third year of litigation, a handful of small businesses including Rancho Bravo, Sage Physical Therapy, the liquor shop, and Cafe Argento, the 12th Ave coffee shop the New York Times featured in its August 2020 profile on the case, have since dropped out of the lawsuit. Others including Car Tender and Bergman’s Lock and Key have moved from the neighborhood or gone out of business.

U.S. District Court Judge Thomas Zilly will now consider the latest twist in the case and decide if evidence around the deleted texts is enough to warrant financial penalties and special procedures should the case ever make it to trial. Zilly could also decide enough is a enough and rule for a default judgement for the plaintiffs. The next legal battle would then be sorting out how much this is going to cost the city.

The Seattle City Attorney, meanwhile, continues to face the legal fallout from CHOP in lawsuits brought over the deaths of young men shot and killed during the protest camp. Earlier this year, the city settled one wrongful death lawsuit in the June 2020 shooting of 19-year-old Lorenzo Anderson on the edge of CHOP.

UPDATE 1:45 PM: In a responding motion Thursday, the City Attorney says the group of real estate owners, their employees, and representatives from the Capitol Hill businesses involved in the lawsuit must be held to the same standards as city officials when it comes to retaining messages from the CHOP period.

“The individuals’ contemporaneous, unvarnished messages to other businesses in the neighborhood, tenants, and friends and family, are highly relevant to what Plaintiffs and their tenants actually were experiencing in June 2020,” the City Attorney writes, adding that “this motion is about Plaintiffs’ successful, and deliberate, actions to foreclose access to key documents that damage, and in some cases obliterate, their claims,”

In the filing, City Attorney Ann Davison’s office says representatives including Hunters Capital owner Michael Malone also did not retain text messages and emails exchanged during the CHOP protest and sometimes used the privacy-focused Signal app to communicate about the situation.

One example, the city says, is Richmark Label owner Bill Donner who “confirmed that he was at the ‘center’ of CHOP and exchanged many texts about it, but deleted them forever.”

“At his deposition, he bristled at the notion that he had any obligation to do otherwise,” the motion reads:

Donner has produced a handful of emails in which he described how he did not think the City and SPD would be able to clear the CHOP area without significant and violent clashes with protestors. Exs. 21-23. Admissions like that are highly relevant because they demonstrate the reasonableness of the City’s conduct – trying to de- escalate the CHOP sufficiently so it could be cleared without the violent clashes that Donner and others expected – which the City successfully accomplished. The City has every expectation that Donner’s many text messages from the “center” of CHOP with his friends and family would have contained additional compelling admissions and evidence.

While the legal argument might be a bit of a stretch when it comes to proving “reasonableness,” the filing could also be impactful when it comes to determining damages.

One example centered on by the City Attorney are messages from Jill Cronauer of Hunters Capital that the city says are missing from evidence gathered from her communications.

“… Hunters Capital seeks hundreds of thousands of dollars because the Riveter left its space in a Hunters Capital’s building,” the City Attorney’s motion reads. “But in fact the Riveter had decided to do so in May 2020, well in advance of CHOP, as revealed in emails that Cronauer and Hunters Capital did not produce, but that the Riveter did.”

The city says that these missing message show that “many of the damages Hunters seeks to pin on the City arose before CHOP even formed, including the May 31 looting of Gamestop that Hunters Capital claims was the direct cause of GameStop not renewing its lease.”

“The tenant emails and texts that Cronauer deleted also are favorable to the City, because they show that Hunters’ Capitol’s tenants, and the Capitol Hill real estate market in general, were impacted far more by Covid-19 than by CHOP,” the motion continues. “Malone’s and Cronauer’s other missing texts and emails almost certainly would include additional, highly relevant evidence of these issues.”

The city says Hunters Capital is seeking $2.9 million in damages in the case while Richmark Label is seeking $90,000 for lost business. Dollar totals for the other plaintiffs were not disclosed in the motion.

In its filing, the city is asking the judge to counter the sanction request from the plaintiffs with limitations on what evidence the businesses and real estate owners can present at trial:

As such, the City requests that the Court instruct the jury that it must, or at least may, presume that the spoliated messages contain evidence unfavorable to these Plaintiffs. Additionally, because emails and texts produced by Hunters Capital tenants but not preserved and produced by Hunters Capital demonstrate that Hunters Capital improperly deleted critically relevant evidence going to the heart of their claims for lost or abated rent, the City requests that the Court preclude Hunters Capital from presenting evidence that any tenants or rent that Hunters Capital lost from June 2020 through the present was caused by CHOP or the City.

The City Attorney is also asking for the court to require the group pursuing the lawsuit to pay costs and “compensate the City for the prejudice caused by Plaintiffs’ spoliation and the City’s efforts to obtain relevant information from other sources.”

Meanwhile, City Attorney Ann Davison’s office will have more work to do. Thursday’s motion promises that efforts to recover missing texts from Seattle city officials “will be explained more fully” in a subsequent filing.

 

BECOME A CHS SUBSCRIBER
Subscribe to CHS to help us pay writers and photographers to cover the neighborhood. Become a subscriber at $1/$5/$10 a month.

 

 

 

 

Subscribe and support CHS Contributors -- $1/$5/$10 per month

1 Comment
Inline Feedbacks
View all comments
zach
zach
1 year ago

This has certainly become a very complicated case. I hope the plaintiffs are ultimately successful, because they deserve compensation for loss of business and damage to property, which were a direct result of the city’s negligence in allowing the chaos of CHOP to go on so long.