SEATTLE — A federal judge has levied crippling sanctions against the city of Seattle for deleting thousands of text messages between high-ranking officials, including the former mayor and police chief, during the three-week Capitol Hill Organized Protest — a ruling that will undermine the city’s defense against a lawsuit filed by business owners and residents affected by the high-profile protests.
In a pair of lengthy orders Jan. 13, U.S. District Judge Thomas Zilly sent the so-called Hunters Capital lawsuit to trial on two of five claims, dismissing three others. He also ordered the city to pay the attorneys fees for those who showed city leaders destroyed significant evidence about their decision-making during CHOP, including their move to abandon the Police Department’s East Precinct.
The judge found significant evidence that the destruction of CHOP evidence was intentional and that officials tried for months to hide the text deletions from opposing attorneys.
“The Court finds substantial circumstantial evidence that the city acted with the requisite intent necessary to impose a severe sanction and that the city’s conduct exceeds gross negligence,” he wrote.
For that reason, Zilly said that when the case goes to trial he’ll instruct the jury that it may presume the text messages were detrimental to the city’s legal position and that there’s significant circumstantial evidence they were deleted intentionally.
“City officials deleted thousands of texts messages from their city-owned phones in complete disregard of their legal obligation to preserve relevant evidence,” Zilly wrote in the 39-page order. “Further, the city significantly delayed disclosing … that thousands of text messages had been deleted” and could not be reproduced or recovered.
“As a result, substantial evidence has been destroyed by the city and is unavailable to plaintiffs to support their position in this litigation,” the judge concluded.
The City Attorney’s Office emphasized in a statement that the city prevailed on the three arguments Zilly dismissed but did not comment on the two that will go to trial.
The judge pointed out that the plaintiffs’ attorney sent several letters to the mayor’s office and other officials alerting them to the lawsuit, which was filed June 24, 2020, yet the city didn’t issue an order telling officials to preserve relevant evidence, written and electronic, until July 22.
By then, the order states, former Mayor Jenny Durkan, former police Chief Carmen Best, fire Chief Harold Scoggins and four other key city officials at the time — Seattle Public Utilities official Idris Beauregard; assistant police Chief Eric Greening; SPD’s chief strategy officer Chris Fischer; and Seattle Emergency Operations Center coordinator Kenneth Neafcy — had purged their phones of tens of thousands of text messages.
The former mayor has offered a number of explanations for the missing messages, including that she dropped her phone in water, that she inadvertently changed the phone’s deletion settings and that “someone” set a new phone to delete messages older than 30 days, resulting in a rolling deletion of previous messages.
Zilly, in his order, found the former mayor’s “various reasons for deleting her text messages strain credibility.”
Durkan, through a spokesperson, said Thursday that she “worked to keep the public informed through near-daily public meetings and press interviews.”
“She and others believed that all phone data was automatically backed up by the city; when she learned that was not happening, she took action to ensure the information would be preserved,” the spokesperson said.
The order notes that Best’s phone at some point was also set to delete text messages after a month, despite her obligation to keep them due to pending litigation. Zilly noted that the former chief apparently deleted more than 27,000 of those text messages by hand.
The Seattle Times sued the city over the mayor’s missing texts, settling the lawsuit for $200,000 and a promise by the city to improve its public records process.
The city was able to re-create or recover about 161,000 of the text messages that had been sent to multiple individuals or copied to other officials, but the judge noted that key texts between Durkan, Best and Scoggins were lost forever.
“Although the city issued a significant number of litigation holds” requiring the preservation of all evidence pertinent to lawsuits that had been filed months earlier, “Officials at the highest levels of city government completely disregarded these holds and deleted thousands of relevant text messages,” Zilly wrote.
Several such holds were issued beginning June 9, 2020, when the Seattle chapter of Black Lives Matter sued the city over allegations that police were using excessive force against protesters following the May 25 murder of George Floyd by Minneapolis police, which prompted protests nationwide.
More than a dozen businesses, led by Seattle developer Hunters Capital, all located in and around the eight-block area that became known as CHOP, sued for damages on June 24, 2020. Their attorneys sent a series of letters to the city demanding that any evidence pertaining to the city’s alleged support and encouragement of the zone’s creation be retained, according to the court docket and pleadings.
Zilly concluded that officials ignored the notifications.
“Instead, Mayor Durkan, Chief Best, Chief Scoggins and other key city officials purged (through factory resets, changed retention settings, or manual deletions) thousands of CHOP-related text messages from their phones after they were under a clear legal obligation to preserve such information and without confirming that all of their text messages had been preserved through other means,” the order says.
Moreover, Durkan learned in August 2020 that text messages had been deleted, but the city did not disclose the deletions to opposing attorneys until March 2021.
Zilly’s order also sanctioned Michael Malone of Hunters Capital for deleting text messages that should have been preserved — and ruled that the city’s attorneys will be able to present that finding to the jury. Hunters Capital claims it lost $2.9 million in business as a result of CHOP.
In his second order, Zilly dismissed three of five claims against the city that were filed by the Hunters Capital plaintiffs, including allegations that the city violated their right to due process, allegations of negligence, and illegal taking of their property and civil rights.
However, Zilly concluded that the jury should hear evidence alleging the city “directly participated” in creating CHOP through its decision to provide portable toilets, hand-washing stations, dumpsters and other accommodations during the three-week protest.
And he said a jury should decide whether the city’s actions amounted to a “right-of-access taking” by allowing the protesters to interfere with access to their businesses.
