J.K. v. Bellevue Sch. Dist. No. 405, 81234-3-I

CourtCourt of Appeals of Washington
Writing for the CourtChun, J.
Citation500 P.3d 138
Parties J.K., a minor, BY Bruce A. WOLF, his guardian ad litem; Elizabeth A. Ehle; and Joe Kettenhofen, Respondents, v. BELLEVUE SCHOOL DISTRICT NO. 405, Appellant, King County, and State of Washington, Defendants.
Docket NumberNo. 81234-3-I,81234-3-I
Decision Date06 December 2021

500 P.3d 138

J.K., a minor, BY Bruce A. WOLF, his guardian ad litem; Elizabeth A. Ehle; and Joe Kettenhofen, Respondents,
v.
BELLEVUE SCHOOL DISTRICT NO. 405, Appellant,

King County, and State of Washington, Defendants.

No. 81234-3-I

Court of Appeals of Washington, Division 1.

FILED December 6, 2021


Gerald John Moberg, Attorney at Law, 238 W Division Ave., Ephrata, WA, 98823-1848, Bret S. Simmons, Simmons Sweeney Smith PS, 1223 Commercial St., Bellingham, WA, 98225-4306, Kenneth Wendell Masters, Shelby R Frost Lemmel, Masters Law Group PLLC, 321 High School Road Ne, D3-#362, Bainbridge Island, WA, 98110-2648, for Appellant.

Timothy Rolland Tesh, Zachary E. Davies, Ressler & Tesh PLLC, 710 5th Ave. Nw Ste. 200, Issaquah, WA, 98027-2841, for Respondent.

PUBLISHED OPINION

Chun, J.

¶1 This case concerns the sanction of a default judgment on liability for spoliation and discovery violations. Given the nature of appellant's conduct, we conclude that the trial court acted within its discretion.

¶2 On May 22, 2017, first-grader J.K. told his mother that a classmate, B.V., sexually abused him many times at their school, Eastgate Elementary (Eastgate) in the Bellevue School District (BSD). J.K.’s parents reported

500 P.3d 142

this to BSD, who in turn informed Child Protective Services (CPS) and the Bellevue Police Department.

¶3 Video cameras monitored Eastgate. The camera software system automatically and periodically overwrote old footage.

¶4 A records retention policy, applicable to BSD under RCW 40.14.070, required the preservation of documents, including video footage, related to reasonably anticipated litigation. But BSD took no action in May 2017 to preserve video footage from the school. Nor did it take any such action as these events took place: First, during an interview on June 1, J.K. told BSD that B.V. also abused him on a school bus. The school buses servicing Eastgate contained a camera system that overwrote footage. Second, on June 19, BSD received a tort claim form and a litigation hold request from J.K. directing it to preserve footage relating to J.K. and B.V. Third, on June 21, BSD's general counsel sent a similar litigation hold letter to BSD employees. And fourth, on October 10, J.K. served BSD with his complaint.

¶5 BSD did not act to preserve footage until December 8, 2017, during the discovery phase of the case and over six months after J.K.’s initial report of abuse. In the meantime, the camera systems automatically overwrote any footage that could have shown the children at school or on the bus.

¶6 BSD also engaged in numerous discovery violations. On November 9, 2017, J.K. served a set of interrogatories and document requests (First Set of Discovery) on BSD. J.K. asked BSD to identify and produce all documents, including video footage, concerning J.K. or B.V. and the investigation of the incidents. And J.K. asked that "[i]f any such document was, but is no longer, in [BSD's] possession ..., please state what disposition was made of the document." BSD failed to respond by the deadline of December 9, 2017. On January 22, 2018, BSD submitted incomplete responses and in March, it produced video from some school cameras showing footage after J.K. stopped attending Eastgate. J.K. moved to compel complete and non-evasive answers on May 18, 2018, and the trial court granted the motion on June 7, 2018. BSD did not comply with the order compelling discovery.

¶7 On March 22, 2019, J.K. served a second set of interrogatories and document requests (Second Set of Discovery). BSD failed to respond by the deadline of April 24. J.K. moved to compel this discovery on June 10. While the motion was pending, BSD submitted incomplete responses on June 12. On June 20, the trial court granted J.K.’s motion to compel, directing BSD to provide complete and non-evasive answers by June 27. After this deadline, BSD provided a supplemental answer on July 2, and then a second supplemental answer on July 12, providing new information each time. Because of BSD's conduct, J.K. could not determine what happened to the footage until close to the discovery cutoff date of September 24.

¶8 J.K. then moved for a sanction and the trial court entered a default judgment on liability. A jury determined damages. BSD appeals the sanctions order. For the reasons discussed below, we affirm.

I. BACKGROUND

A. Facts

¶9 J.K. started first grade at Eastgate in December 2016. B.V. was in J.K.’s class and they rode the same school bus. On May 22, 2017, J.K. told his mother that B.V. sexually abused him "almost every day" at school. He said the abuse had been happening in a school bathroom. The same day, J.K.’s parents reported this to his teacher, Robin Forsman, and Eastgate's school counselor, Lindsay Verschueren. Verschueren informed CPS and the Bellevue Police Department. The last day B.V. and J.K. attended school together was Friday, May 19, 2017.

¶10 On May 23, 2017, BSD counselor Deb Kraft and Verschueren interviewed J.K. and concluded that he was credible.

¶11 During the 2016–2017 school year, Eastgate had eight surveillance cameras. Cameras 1–7 were outside the school building and Camera 8 was inside a wiring closet. Cameras 1–4 were not operating during the time J.K. and B.V. attended school together. With no action taken to preserve footage, the camera systems automatically overwrote old

500 P.3d 143

footage to free up storage capacity. The school cameras retained footage for at least 30 days but could hold it up to six months.

¶12 The Local Government Common Records Retention Schedule Version 4.0 (CORE) sets forth the retention schedule for BSD's camera footage. CORE prohibits the destruction of footage subject to "ongoing or reasonably anticipated litigation." RCW 40.14.070 governs public record retention schedules such as CORE and provides that such schedules are the "authority" for public records destruction practices.

¶13 On May 24, 2017, Eastgate principal Steve Lesco placed an "urgent" request for the BSD technology department to install software on his computer so he could review footage because of a "student safety issue." The next day, network engineer David Roberts installed the software. In an e-mail to Lesco that day, Roberts explained that he had discovered that Cameras 1–4 had not been operational during the time J.K. attended Eastgate but that the remaining cameras, Cameras 5–8, had been recording footage. On May 25, 2017, Lesco prepared a notice of disciplinary action stating that, on at least two days, B.V. inappropriately touched another student.

¶14 BSD placed B.V. on "emergency expulsion" for 13 days. B.V. then accused J.K. of bullying, and Lesco investigated that accusation. On June 1, 2017, during an interview related to B.V.’s bullying claim, J.K. told Lesco that B.V. had pulled down J.K.’s pants while on the bus. J.K. did not specify when or how often B.V. abused him on the bus. Lesco ended the interview without asking more questions. He did not inform the police or CPS about this allegation and did not investigate J.K.’s comment further. Lesco shared J.K.’s comment with BSD's administrators over e-mail. The executive director of schools, Patricia Siegwarth, responded by e-mail, stating in part, "As much as possible, refrain from communicating info related to this situation on email. It's best we discuss in person."

¶15 The school buses also had surveillance cameras. BSD installed a new camera system in its buses in April 2017, and that system retained footage for about 30 days.

¶16 On June 6, 2017, Lesco e-mailed J.K.’s mother, confirming that, based on his investigation, inappropriate touching occurred. Up to this point in time, BSD took no steps to preserve any video footage.

B. Procedural History

¶17 On June 19, 2017, BSD received a tort claim form and a litigation hold letter from J.K. requesting that BSD preserve documents related to J.K. and B.V., including surveillance video footage from the school and the buses from December 2016 onward. On June 21, BSD employees received an internal litigation hold letter from its general counsel instructing them to preserve documents relating to J.K. and suspend standard document destruction programs. The letter also explained that "documents" included electronic information and that failure to preserve documents could lead to "severe sanctions." BSD still did not take any steps to preserve video footage.

¶18 On October 10, 2017, J.K. served BSD with his complaint. On November 9, 2017, J.K. served BSD with the First Set of Discovery seeking information, documents, and video recordings related to J.K. or B.V. Among other requests, the First Set of Discovery asked BSD to identify:

• "[E]ach document, which you possess or have the legal right to obtain, pertaining to JK or BV."

• "[E]ach document, which you possess or have the legal right to obtain, pertaining to all investigations of the Incidents."

• "[E]ach document, which you possess or have the legal right to obtain, pertaining to video or audio recordings of JK or BV on the premises of Eastgate Elementary School or on your school buses during the 2016-17 school year, including without limitation video recordings, audio recordings, and electronically stored information."

• "[E]ach document, which you possess or have the
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