Washington Agencies Sanctioned for Discovery Violations Reach $3.1 Million Settlement with Disabled Woman Allegedly Abused at State Sanctioned Home
“Any lawyer practicing in this State should get an uneasy feeling when a request for sanctions is made under controlling case law in Washington,” wrote a King County Superior Court judge in an order dated March 21, 2023. Requiring state Attorney General Bob Ferguson (D) and the Department of Social and Health Services (DSHS) to cough up $200,000 in sanctions, Judge Michael K. Ryan added in his scathing ruling that it was not acceptable “to play games in discovery or to be ignorant of one’s discovery obligations.”
What got Judge Ryan so frustrated was the state’s response to discovery requests involving Emily Tobin, a developmentally disabled adult who sued DSHS in 2021, alleging the agency had failed to investigate her claims of abuse and neglect at Ayasha Adult Family Home, where it placed her. DSHS, represented by Ferguson, received discovery requests due by December 21, 2021. But Tobin’s counsel didn’t get some 10,800 pages of responsive documents for more than a year. A DSHS witness admitted during deposition that the documents had been located in time but were not sent to the Attorney General for six months.
“Notably,” Judge Ryan wrote, Ferguson’s office made “no attempt to explain why DSHS failed to provide these documents sooner,” nor explain its lack of follow-up. But that was only one aspect of the state’s discovery violations. Once DSHS sent the missing materials, they languished in Ferguson’s office for another six months before being sent to Tobin’s attorney in December 2022.
The reason: One of the state attorneys assigned to the case, Seth Dickey, had “outsourced his discovery obligations to a paralegal that he was not communicating with about his client’s discovery obligations and who he was not properly supervising,” the judge recalled. The paralegal who eventually received the discovery documents from DSHS did not inform Dickey they had been produced, and Dickey left for paternity leave two weeks later.
While on leave Dickey continued to participate in the case—when the state moved for summary judgment and tried to prevent Tobin’s attorney from conducting a Rule 30(b)(6) deposition “that would address, among other things, discovery in this matter.” Ferguson argued the deposition was unnecessary as there were no allegations “as to the adequacy of DSHS’s production of documents”—which Judge Ryan noted “was obviously false and the truth could have been easily ascertained.”
Holding that the delay in producing the requested discovery was a “willful violation” that left Tobin “substantially prejudice,” the judge ordered DSHS and the Ferguson to pay $200,000 to the King County Sexual Assault Resource Center as a punitive sanction. A summary judgment order entered prior to the abuse was also vacated. Tobin’s counsel was then permitted to re-depose witnesses and awarded $122,555 in costs and fees associated with the sanctions motion.
After that, it wasn’t a big surprise when Ferguson announced on June 5, 2023, that the state had reached a settlement with Tobin totaling $3,125,000, plus a $15,000 fee to a guardian ad litem to represent her interests in it. The settlement also ends a probe into the discovery violations ordered by the court. Tobin is represented by attorneys David P. Moody, Marty McLean, James Chong and Ryan Pittman of Hagens Berman Sobol Shapiro LLP in Seattle. See: Tobin v. Ayasha Adult Family Home LLC, Wash. Super. (King Cty.), Case No. 21-2-14830-8.
Additional sources: The Center Square, Seattle Times
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Related legal case
Tobin v. Ayasha Adult Family Home LLC
|Wash. Super. (King Cty.), Case No. 21-2-14830-8
|State Trial Court