Camicia v. Andrew G. Cooley & Keating Bucklin & Mccormack, Inc.

SUSAN CAMICIA, Respondent, v. ANDREW G. COOLEY and KEATING BUCKLIN & MCCORMACK, INC., P.S., Appellants,HOWARD S. WRIGHT CONSTRUCTION COMPANY,a Washington corporation and CITY OF MERCER ISLAND,a municipal corporation, Defendants.

No. 74048-2-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

February 21, 2017

UNPUBLISHED OPINION

MANN, J. — Andrew Cooley and his law firm Keating Bucklin & McCormack (collectively Cooley), challenge discovery sanctions of $10,000 imposed jointly and severally against Cooley and their client the City of Mercer Island (City), for willful violations of the discovery rules. Cooley asserts that the trial court abused its discretion in concluding: (1) that the City and Cooley failed to produce Fire Department records pertaining to bicycle injuries, (2) that Cooley violated discovery rules based on the City's destruction of tort-claim records, and (3) that the trial court generally erred in imposing sanctions on Cooley. Because the trial court did not abuse its discretion in imposing sanctions, we affirm.¹

FACTS

On June 19, 2006, Susan Camicia hit a wooden bollard while riding her bicycle on the I-90 Trail in the City. The accident left her a quadriplegic. Mercer Island Police Officer Ryan Parr responded and photographed the scene on the day of Camicia's accident. The following day, the City hired Cooley to defend it against potential personal injury claims arising from Camicia's accident.

Cooley is an experienced defense attorney and has practiced law for over thirty years. Cooley was involved in Camicia's case from its beginning. He directed the case's themes and strategy, took depositions, defended depositions, conducted witness interviews, worked with experts, and oversaw discovery. In defending the City, Cooley worked closely with the City Attorney from June 20, 2006, until 2015.

Camicia sued the City in August 2007. In October 2007, she served her first discovery requests on the City. Relevant requests and the City's October 30, 2007, responses are as follows:

[Interrogatory] 14. Have you or your agents, investigators, lawyers or anyone else investigated any incidents involving danger, injury or death to bicyclists or pedestrians because of fences, bollards or other obstructions or defects in any sidewalk, path or public right-of-way in the City of Mercer Island, either before or after this incident? If so, please identify or describeall such investigations and accident locations, the name, address, telephone number and job title of each person who reported or investigated each accident; the date of each accident, the name and number of each incident report and investigation report, and the name, address, telephone number and job title of each person who has custody of the reports or investigation documents.

ANSWER: Objection. Compound. Vague as to time. Overly broad as to location. If by "incidents" you mean accidents, there have never been any bicycle vs. bollard accidents to the City's institutional knowledge. Otherwise the question is vague as to time, the word "incident" and "danger." Certainly there have been pedestrian incidents in the City since its incorporation.

There was one bike accident in October 2007, where a bicyclist turning around fell off of a bicycle and partially struck a cement post on EMW. See police report.

[Interrogatory] 15. Are you aware of any notices, reports, complaints, claims or other communications from any source about safety concerns to pedestrians or bicyclists from fences, bollards or other obstructions or defects in any sidewalk, path or public right-of-way in the City of Mercer Island, either before or after this incident? If so, please identify or describe the dates and details of all such notices, reports or complaints, the names, addresses and telephone numbers of all persons who made and received them, all documents electronic communications or tangible things concerning them, and all decisions or actions taken in response to such notices, reports or complaints.

ANSWER: Objection. Compound. Vague as to what is meant by "notice" or "other communications" and "other obstructions or defects."

. . . .

[Interrogatory] 20. Do you, your representatives, agents or attorneys have any photographs, movies, videos, diagrams, models, surveillance photography or videos or any other depictions concerning the physical facts or scene of the incident, the plaintiff, plaintiff's injuries, or any other potentially relevant object, matter or issue in this case? If so, please identify the subject, date and person preparing each such representation, the nature of the representation (whether map, diagram, model, photograph, movie, etc.), and the name and address of the present custodian.

ANSWER: Yes, see attached.

Please produce genuine, authentic originals or copies of the following documents and things:

11. All incident reports, investigative reports or other documents, drawings, computer data, photos, movies, videos or depictions relating to other bicycling and pedestrian accidents and related safety concerns as referenced in Interrogatory Nos. 14 and 15.

RESPONSE: See documents previously attached. [The City produced a 2007 police report about a bicyclist who turned around and fell off his bicycle.]

The City's responses did not indicate that it was withholding any information responsive to Camicia's discovery requests. Nor did the City seek a protective order to limit or eliminate its obligation to respond fully to Camicia's requests.

City officials knew, since before Camicia's accident, that records of bicycle accidents, including bike-bollard collisions, were kept by the City's Fire Department. Despite knowing this, neither the City nor Cooley searched for records of other bicycle accidents responsive to Camicia's discovery requests in the City's Fire Department. The trial court found that "Cooley strategically ignored looking at Fire Department records."² "Nor was a complete review made of the Police Department, City Clerk's or City Attorney's files or records where they should have known that responsive information might be located."³

There were records of other bicycle accidents. In July 2005, a bicyclist was injured when his bicycle struck a bollard on a portion of the I-90 Trail that was located on a Washington Department of Transportation right-of-way within the City. Mercer Island Fire Department responded to the accident and prepared a report of the incident.In August 2005, the City Parks Director wrote in an e-mail to the City Engineer that a "cyclist-bollard post collision" had recently occurred. The Parks Director's e-mail was also sent to the City's Traffic Engineer and other City personnel. The City did not produce this e-mail in response to Camicia's initial discovery requests.

There were numerous complaints made about the wooden bollards. One week after Camicia's accident, David Smith complained to the City about the bollard posts and the danger they posed to bicyclists. Smith's complaint was documented in City records. Between February and June 2007, attorney John Duggan made a series of complaints to the City about the risks that the wooden bollards on the I-90 Trail posed to bicyclists. The City Attorney communicated with Duggan about these complaints, and the City's Traffic Engineer and Attorney documented these complaints in the City's records. In August 2007, Rebecca Slivka of the Bicycle Watchdog group also complained to the City about the risks posed by the bollards to bicyclists. The City Attorney was informed of this complaint. Later, in August 2009, Joshua Putnam also complained about the risks posed by the bollards to bicyclists. The City's Development Director documented Putnam's complaint in the City's records. The City and Cooley did not disclose records of other bicycle accidents or safety concerns in its response to Camicia's initial discovery requests.

The photos that Officer Parr took of the scene on the day of Camicia's accident also were not produced in the City's October 2007 discovery responses. These photos were not produced to Camicia until May 6, 2009, after Cooley had deposed Camicia twice and all but one of Camicia's expert witnesses. The trial court found that the photos that Officer Parr took were relevant because they showed the scene conditionssoon after the accident occurred. For example, they showed lighting conditions and construction signs in Camicia's lane of travel. Cooley did not explain why these photos were not produced to Camicia 18 months after her first discovery requests in October 2007.

After Camicia issued her first discovery requests, the City destroyed claims and complaints that were potentially responsive to Camicia's requests. Thus, potentially responsive records were lost. For example, during the court's review of the discovery issues, the City disclosed that it had not searched its "claims for damages forms prior to their destruction. It is unclear why the City destroyed these records during pending litigation; the Deputy City Clerk testified that the destruction was in accordance with the general record-retention policy as set forth by the Washington State Archives.

On June 28, 2014, the City learned of another bicycle accident that occurred on the same day, and on the same unmarked bollard, that Camicia hit. On April 23, 2015, however, Cooley represented to Camicia's counsel in writing that "there are zero reports (of accidents) connected to [Camicia's] accident site." This was despite the City's knowledge that the Mercer Island Police Department had prepared an incident report of the accident.

On May 6, 2015, in response to concerns that the City had not responded to Camicia's initial discovery requests, trial court Judge Laura C. Inveen issued a broad discovery order. The order required the City to produce "[a]ll of its records of other bicycle accidents, including bike-bollard collisions, on its streets and bicycle trails from 1997-2014." Between May 11 and May 14, 2015, the City...