Motion to Compel Seattle Police Officers Guild (SPOG) to comply with Subpoena Duces Tecum

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HONORABLE JUDITH RAMSEYER

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SUPERIOR COURT OF WASHINGTON FOR KING COUNTY The Estate of SUMMER JOLIE WILLIAMS TAYLOR, by and through MATTHEW D. TAYLOR, Personal Representative, ZOE ADBERG, SARA ANDERSON, MEGAN BUSS, GRACE CARMACK, LEANNA CARR, AISLING COONEY, ABIE EKENEZAR, EDWARD FARMER, NIMA FORGHANI, NOAH FOWLER, ZACHARY GARDNER, IAN GOLASH, GRACE GREGSON, MIRANDA HARDY, LEXUS HARTLEY, CLAYTON HOLLOBAUGH, JASON SCHIERER as guardian ad litem for minor MALICHI HOWE a.k.a. BRYAUNA HOWE, JESSE HUGHEY, AUBREANNA INDA, MARY JURGENSEN, TIMOTHY KAUCHAK, JOHN W. KELLIHER, JENNA KINYON, BEN KOENIGSBERG, JACOB KOENIGSBERG, SETH KRAMER, ERIC LOOK, DANIEL LUGO, JACOB MARTIN, JOSHUA MATNEY, CHLOE MERINO, LOGAN MILLER, TONI MILLS, ALESSANDRA MOWRY, KELSEY MURPHY-DUFORD, WESLEY PEACOCK, JORDAN A. PICKETT, CHARLES PIERCE, DANIEL PIERCE, CONOR POULL, RENEE RAKETTY, JAVIER RIZO, ALEXANDER RUEDEMANN, MICHAUD SAVAGE, CAROLYN STERNER, SEAN SWANSON, MEGHAN THOMPSON, BRUCE TOM, TIFFANY VERGARA-MADDEN, ALIYE VOLKAN, STEVEN WIDMAYER, JOSEPH WIESER, GILLIAN WILLIAMS, QUINN ZOSCHKE, and DOES 1-40;

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PLAINTIFFS’ MOTION TO COMPEL SEATTLE POLICE OFFICERS GUILD (SPOG) TO COMPLY WITH SUBPOENA DUCES TECUM

Plaintiffs,

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NO. 20-2-14351-1 SEA

v.

CITY OF SEATTLE, a governmental entity, PLAINTIFFS’ MOTION TO COMPEL SEATTLE POLICE OFFICERS GUILD (SPOG) TO COMPLY WITH SUBPOENA DUCES TECUM - 1

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and KING COUNTY, a governmental entity; Defendants.

2 3 I.

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Plaintiffs through counsel bring this motion to compel compliance with their notice of

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records deposition and subpoena duces tecum directed to non-party Seattle Police Officers Guild (SPOG), in this case by 54 peaceful protester plaintiffs against the City of Seattle et al for personal injuries and civil rights violations stemming from alleged governmental negligence and assaultive conduct during the George Floyd/BLM protests in Seattle, Washington. SPOG has asserted objections that are improper and/or unfounded under CR 45. Plaintiffs request that the court overrule SPOG’s objections and order them to comply with the issued subpoena.

II.

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3.1

The Plaintiffs comprise peaceful protesters who took to the streets of Seattle to express

May 2020. The lawsuit names among others the City of Seattle and through it the Seattle

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Police Department (SPD).

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On October 13, 2021, Plaintiffs issued a notice of records deposition and subpoena duces tecum to SPOG as a non-party entity with potentially relevant knowledge. 1

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STATEMENT OF RELEVANT FACTS

their first amendment rights during the George Floyd/BLM protest period commencing in

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INTRODUCTION AND RELIEF REQUESTED

3.3

The general basis for issuing the discovery request is because: a. SPOG is the representative body of almost all of the members of the Seattle Police

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Department, and its sphere of influence extends beyond the union; into the City and SPD

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itself. [Note: see SPOG website listing its “more than 1,300” members. SPD records

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Declaration of Karen Koehler, Ex. 1 (Notice and SDT).

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indicate 1,325 deployable officers with a total of 1,433 members of the SPD];

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b. Contract negotiations are a multi-sided endeavor and involve issues such as whether

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officers should be required to wear body cams, and/or use of force related restrictions,

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concepts such as de-escalation, anti-discrimination and oversight etc., issues which are all

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on point here;

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c. SPOG was an integral party related to the ongoing monitoring of the Consent Decree

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which is focused heavily on use of force and discriminatory practices in policing. SPOG is

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likely to have produced its own related documents and communications beyond what was

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shared with the City or Federal Monitor or Court over the past decade;

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d. SPOG and its leader played an active, almost daily, role in concocting a false and

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derogatory narrative of BLM protesters during the 2020 BLM protests; which narrative

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was used by the SPD to resist use of force and other restrictions despite Federal Judge

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Jones’ order to cease and desist which resulted in a contempt order being issued; and

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because;

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e. The members of the SPD are members of SPOG, the ideologies and methods invoked to

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carry out their SPD job duties are heavily influenced by the rhetoric and calls to action by

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SPOG.

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3.3

On October 27, 2021, SPOG through its counsel, Kelly Sheridan, issued a letter objecting to the Subpoena and explaining why it would not participate in discovery. 2

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3.4

SPOG attached to that letter – its form objections to the subpoena. 3

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3.5

SPOG’s objections can be boiled down to the following:

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Id. Ex. 2 (Ltr. From SPOG Counsel October 27, 2021).

Id. Ex. 3 (Objections to SDT from SPOG October 27, 2021).

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a. it is not a party;

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b. its documents can be procured from other sources like the defendants;

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c. production would be unduly burdensome or unduly expensive (without explanation);

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d. SPOG’s actions are irrelevant to the facts of this case;

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e. documents requested are beyond the scope of CR 45;

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f. topics request documents protected by attorney-client privilege/work product doctrine,

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(without explanation);

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A. SPOG IS INTIMATELY INTERTWINED WITH THE SPD

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3.6

SPOG claims it has no “direct” authority regarding SPD officers’ conduct on the job.

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However, SPOG’s usage of the word “direct” is disingenuous. The union represents almost

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all of the members of the SPD. Mike Solan, its president is authorized to speak and write

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letters and make contract demands (even those that are found to be at odds with the Consent

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Decree) on behalf of the union. The union in turn influences the officers and seeks to

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influence other departments and officials in City government. 4 SPOG may not have

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“direct” management authority. But it certainly has indirect, interdependent authority

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which it wields tremendous power.

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3.7

That SPOG is intricately woven into the fabric of the SPD, can be seen simply by looking

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at how the SPOG President (an SPD officer) is paid. As of July 1, 2018, the SPOG

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President receives 78% of his salary from the City as a result of SPOG’s per the related

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bargaining agreement. 5 Additionally, overtime is also paid by the City. 6 By contrast only

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22% of the SPOG President’s salary is paid directly by SPOG, for “guild business.” 7

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3.8

In February 2020, an overwhelming 70% of voting members of SPOG re-elected Mike

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Solan (an SPD officer since 1999) as President 8 after he ran on a campaign claiming that

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police were “under unreasonable levels of scrutiny both locally and nationwide.” 9 The

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President of SPOG speaks on behalf of the union membership.

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B. SPOG INFLUENCES THE POLICE POLICY IN THE CITY OF SEATTLE

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3.9

On April 3, 2014 – Anne Levinson, civilian auditor of the Office of Professional

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Accountability, submitted a special review report outlining how the SPOG appeals and

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grievance system for members of the SPD can be navigated to “dodge oversight, create

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delay and engender pressure to settle cases.” 1011 Specifically, Levinson’s recommendations

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included limiting the role of SPOG to specifically ensuring the contractual and due process

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rights of officers. 12

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3.10

On April 4, 2014 – In response to the review findings, then SPOG president, Ron Smith,

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publicly stated that the recommendations stemming from the OPA auditor report require

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bargaining with the union, asserting the influence of SPOG in SPD business. 13

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https://www.seattle.gov/Documents/Departments/OPA/Legislation/SPOG_CBA_expires_12-31-20_111418.pdf, p.1.

6 Id. 7 Id. 8 https://www.seattletimes.com/seattle-news/seattle-police-union-elects-hard-line-candidate-as-president-inlandslide-vote/ 9 https://www.seattletimes.com/seattle-news/seattle-police-union-elects-hard-line-candidate-as-president-inlandslide-vote/ 10 https://www.seattletimes.com/seattle-news/big-changes-urged-in-spd-discipline-cases/ 5

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http://www.seattle.gov/Documents/Departments/OPA/auditor/OPA_Auditor_Special_review_SPD_disciplinary_pro cedures_April_2014.pdf 12

https://www.seattle.gov/Documents/Departments/CommunityPoliceCommission/CPC%20Accountabiltity%20Reco mmendations%20COMBINED%2004-2014.pdf S TR ITM ATTE R KE S SLE R KOE HL ER M OORE 13 3600 15 T H Av e Wes t, Suit e 300 https://www.seattletimes.com/seattle-news/big-changes-urged-in-spd-discipline-cases/ S eat tle, W A 98119 PLAINTIFFS’ MOTION TO COMPEL SEATTLE POLICE 206 -448 -1777 F ax: 206-728 -2131 OFFICERS GUILD (SPOG) TO COMPLY WITH SUBPOENA DUCES TECUM - 5

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3.11

On December 3, 2018 – Judge Robart, in respect to ongoing concerns with SPD’s

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compliance with the Consent Decree, ordered the City and DOJ to address SPOG’s contract

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inconsistencies. 14 This order came at the heels of SPOG successfully negotiating a contract

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with the City that “substantially changes or eliminates many of the provisions of the

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Accountability Legislation.” 15

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3.12

On November 13, 2018 – Just one week after the new contract was approved, the SPOG

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Disciplinary Review Board reversed termination of an Officer who “punched a hand-cuffed

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subject in the face while she was sitting in the back of a police car.” 16 As noted in the court

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order from Judge Robart, discipline was reduced, and the officer was reinstated including back pay. 17

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3.13

The review of this egregious incident of police misconduct is understood to have likely

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been substantially different had the Accountability Ordinance been maintained. But, as the

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result of SPOG’s contract negotiations with the City – progress in standard of review

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processes as outlined by the Accountability Ordinance, was squashed. 18

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3.14

This outcome directly contradicts SPOG’s counsel contending that “SPOG has no direct

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authority over SPD in regard to individual policing actions, SPD policymaking, or the

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application of SPD policy.” 19

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14 United States v. City of Seattle, 2:12-cv-01281-JLR, Doc. 504; https://seattlecpc.files.wordpress.com/2019/09/order-to-show-cause.pdf 15 Id. “The contract rolled back the reforms established by Accountability Ordinance No. 125315, and reverted back to the officer-biased appeals process.” Complaint at 5.29; https://www.aclu-wa.org/pages/timeline-seattle-policeaccountability; https://www.aclu-wa.org/news/community-groups-urge-seattle-city-council-reject-police-contractstep-backwards-community 16 United States v. City of Seattle, 2:12-cv-01282-JLR, Doc. 504; https://seattlecpc.files.wordpress.com/2019/09/order-to-show-cause.pdf 17 Id. 18 Id. S TR ITM ATTE R KE S SLE R KOE HL ER M OORE 19 3600 15 T H Av e Wes t, Suit e 300 Koehler Dec., Ex. 2.

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3.15

On May 7, 2020, – The City filed a motion to terminate the consent decree sustainment

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plan provisions with outstanding requests from Judge Robart to return to full and effective

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compliance with the Consent Decree (to which the City fell out of compliance partially

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according to Judge Robart’s December 15, 2019, order). 20

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3.16

On May 25, 2020 George Floyd was murdered.

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3.17

The George Floyd/BLM protests in Seattle began on May 29, 2020.

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3.18

On June 1, 2020 – the Seattle Office of Police Accountability reported receipt of 12,000 complaints of SPD’s protest management. 21

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3.19

On June 3, 2020 – The City of Seattle withdrew its motion to terminate the consent decree sustainment plan provisions and end independent monitoring of its compliance. 22

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C. SPOG PLAYED AN ACTIVE ROLE IN THE BLM 2020 PROTESTS

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3.20

SPOG and the SPOG President spent considerable time, energy, and resources to actively

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disparage BLM protesters. SPOG and its representatives fueled the creation of a negative

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narrative towards the larger BLM protest movement.

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3.21

On June 4, 2020 – in a public statement, SPOG noted the purpose of peaceful protests as

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“designed to disrupt” and requested open communication with its office and the SPD to

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“facilitate your freedom to assemble,” evidencing SPOG recognizing its’ own influence in

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the community and in relation to the SPD.

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always, will investigate SPD conduct and indicates, before reviewing any evidence, that

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“it will be clear our officers’ actions were not malicious.” 24

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The same statement noted that SPOG, as

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United States of America v. City of Seattle, 2:12-cv-01281-JLR, Doc 585; United States of America v. City of Seattle, 2:12-cv-01282-JLR, Doc 612.

21 https://www.aclu-wa.org/docs/opa-press-release-following-demonstrations 22 https://news.seattle.gov/2020/06/03/city-attorney-to-withdraw-consent-decree-motion/ 23 https://seattlepoliceofficers.com/spog-response-to-the-ongoing-protests-in-seattle/S TR (Accessed 10/29/21) ITM ATTE R KE S SLE R KOE HL ER M OORE 24 3600 15 T H Av e Wes t, Suit e 300 https://seattlepoliceofficers.com/spog-response-to-the-ongoing-protests-in-seattle/ S eat tle, W A 98119 PLAINTIFFS’ MOTION TO COMPEL SEATTLE POLICE 206 -448 -1777 F ax: 206-728 -2131 OFFICERS GUILD (SPOG) TO COMPLY WITH SUBPOENA DUCES TECUM - 7 20

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3.22

On June 6, 2020 – the SPOG President issued a public letter to Mayor Durkan over-

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emphasizing minimal reports of police injuries during protests while completely ignoring

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the harm his members were committing against the public. Further, the SPOG President

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pushed the sphere of SPOG’s influence beyond advocacy when he lamented the restriction

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of “less-lethal chemical munition” as apparently the only option to manage crowds. 25

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3.23

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On June 8, 2020 – the SPOG President held a press conference in which he… 26 •

Publicly advocated for the use of less lethal munitions against protesters, describing

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it as “the only tool that’s effective for us to be able to hold this facility and protect

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our people.” He also criticized local politicians for considering removing that use of

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force option.

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Accused protesters in the 11th and Pine area after 4pm of being “criminal agitators,”

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despite the fact that the vast majority of protesters were peacefully exercising their

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rights to free speech and assembly.

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Claimed he saw CCTV footage near the East Precinct and that he “asked the City”

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why the footage had not been shared with media –indicating a communication was

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occurring between the City and SPOG President regarding evidence of events at BLM

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protests.

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Derisively referred to community concerns over “mourning badges” covering badge

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numbers of officers as “angst,” and conceded that the police would move their

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mourning badges up, so they did not cover up badge numbers. Thereby indicating

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Koehler Dec., Ex. 4 (Ltr. From SPOG President to Mayor Durkan).

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some level of influence over this policy that impacted protester’s ability to hold police

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accountable.

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3.24

On June 11, 2020 – the SPOG President appeared on Fox News, describing the

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abandonment of the East Precinct by the City and the SPD (and subsequent formation of

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CHAZ/CHOP) as a “surrender,” and even asking “What’s to stop these unreasonable

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activists to take another precinct…?” 27

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3.25

On July 4, 2020 – the SPOG President appeared on Fox News again describing the SPD’s

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dismantling of CHAZ/CHOP as going in to “liberate the City of Seattle who was held

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hostage by these unreasonable activists.” 28

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3.26

On June 20, 2020 – the SPOG President went on Fox News yet again, making baseless

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claims that activists prevented police from entering CHOP (an organized protest zone) after

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a shooting occurred. 29

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3.27

On July 1, 2020 – the SPOG President sent an email to SPD Chief Carmen Best expressing

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concerns about plans to “retake CHAZ/CHOP” and offering several suggestions to Chief

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Best about how to improve those operations. 30

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https://www.youtube.com/watch?v=Q1DDVUdGNBA https://www.youtube.com/watch?v=7PHmErKGdO8 29 https://www.youtube.com/watch?v=5yY-Sgk4uE0&t=64s 30 Koehler Dec., Ex. 5 (Email from SPOG President to Police Chief Best).

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3.28

On August 27, 2020 – the SPOG President posted an inflammatory tweet claiming that anti-fascist protesters were “domestic terrorists” trying to “kill police.” 31

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3.29

On August 28, 2020 – the SPOG President seemed to make direct threats to protesters when

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he implied in an interview with a local talk show host, Dori Monson, that he would escalate

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to violence and perhaps even a gun, stating, “If these mob individuals bring a fight to my

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doorstep, they better be prepared for a significant response.” This comment was made after

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a Black-led youth group peacefully protested outside his home. 32

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3.30

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On September 7, 2020 – BLM protesters marched to the SPOG headquarters. Upon arrival, someone at SPOG (not protesters) began blasting the song “Save a Horse, Ride a Cowboy”

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https://twitter.com/realmikesolan/status/1299189662079053825?s=19 https://mynorthwest.com/2124085/seattle-police-protesters-mike-solan-guild/ PLAINTIFFS’ MOTION TO COMPEL SEATTLE POLICE OFFICERS GUILD (SPOG) TO COMPLY WITH SUBPOENA DUCES TECUM - 10 31 32

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from the SPOG headquarters building. As the song was playing, police on bicycles

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suddenly rushed the protesters. 33

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3.31

On September 7, 2020 – the SPOG President publicly intimidated the press after the protest

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earlier that day by implying they were engaged in criminal acts simply by being present at

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protest events. The SPOG President (who allegedly does not have direct involvement or

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access to SPD) mused that he should put the journalist’s press badge into SPD evidence. 34

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3.32

It is impossible to include every effort made by SPOG and the SPOG President to verbally attack protesters exercising their rights to free speech and assembly. SPOG has repeatedly

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released publicly viewable videos, most of which are heavily edited, narrated, and set to

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https://www.thestranger.com/slog/2020/09/08/44432799/police-rush-protesters-outside-spog-hq-while-blastingcountry-music-22-arrested S TR ITM ATTE R KE S SLE R KOE HL ER M OORE 34 3600 15 T H Av e Wes t, Suit e 300 https://twitter.com/realmikesolan/status/1303151547291852805 S eat tle, W A 98119 PLAINTIFFS’ MOTION TO COMPEL SEATTLE POLICE 206 -448 -1777 F ax: 206-728 -2131 OFFICERS GUILD (SPOG) TO COMPLY WITH SUBPOENA DUCES TECUM - 11 33

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dramatic and ominous music that are selectively negative in their portrayal of BLM

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protesters. 35

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3.33

The SPOG President on behalf of his members, seemed to make it his full-time job in the

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summer of 2020 to spin what can only be described as a propaganda war against

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overwhelmingly peaceful BLM protesters repeatedly referring to them collectively as

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“criminals,” “unreasonable activists,” “a mob,” and “rioters.” This happened enough times

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that a video compilation was made showcasing his strategic and inflammatory talking

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points. 36

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3.34

SPOG and the SPOG President have continued to make their animosity toward BLM protesters publicly known. After the attempted insurrection on the nation’s capitol by

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known white nationalist domestic terrorists on January 6, 2021, the SPOG President

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insinuated that BLM protesters were behind the insurrection. 37

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See SPOG videos on June 4, 2020: https://www.youtube.com/watch?v=qkd6q78Uxw4; and August 19, 2020: https://www.youtube.com/watch?v=mgq31LYgySc 36 https://twitter.com/spekulation/status/1293782053687660544?s=20 S TR ITM ATTE R KE S SLE R KOE HL ER M OORE 37 3600 15 T H Av e Wes t, Suit e 300 https://twitter.com/realmikesolan/status/1347435354895179776?s=20 S eat tle, W A 98119 PLAINTIFFS’ MOTION TO COMPEL SEATTLE POLICE 206 -448 -1777 F ax: 206-728 -2131 OFFICERS GUILD (SPOG) TO COMPLY WITH SUBPOENA DUCES TECUM - 12 35

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3.35

SPOG’s continued negative portrayal of protesters and activists in Seattle is demonstrated

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as recently as May 2021, when SPOG issued a letter condemning the Office of Inspector

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General, Lisa Judge, for her open letter to the Seattle Police Chief advocating that SPD

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stop conducting traffic stops within the City of Seattle. The SPOG President released a

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statement claiming Ms. Judge’s letter “reeks of activist virtue signaling and perpetuates the

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false narrative that Seattle Police officers serve our community through a lens of bias.” 38

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III.

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STATEMENT OF ISSUES

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Whether Plaintiffs subpoena to SPOG regarding materially relevant records should be

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enforced under CR 45? Yes, as: 1) SPOG has relevant information pertaining to SPD policy and

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bias, 2) SPOG injected itself into the response to BLM protesters that influenced the course of

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events during the Summer of 2020; and 3) SPOG has not articulated—as the law requires—what

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if any documents are privileged from discovery.

IV.

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EVIDENCE RELIED UPON

This motion is based on the Declaration of Karen Koehler with exhibits, and the files and pleadings on record.

V.

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ARGUMENT AND AUTHORITY

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Discovery is to aid in search of the truth, so that the Court can make a fair and informed

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decision. See Taylor v. Cessna Aircraft Co., 39 Wn. App. 828, 835, 696 P.2d 28 (1985). Under the

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Civil Rules, a party may command a person or entity to produce “books, papers, documents or

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tangible things … as they are kept in the usual course of business or shall organize and label them

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to correspond with the categories in the demand.” CR 45. A request for production of documents

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pursuant to third-party subpoena is governed by CR 45, which provides in pertinent part:

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If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce and all other parties, move at any time for an order to compel the production...

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CR 45(c)(2)(B). Accordingly, as SPOG has objected to the subpoena, the Plaintiffs move this

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Court for an Order compelling production of documents contained in the official files and records

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of SPOG.

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The requested documents are (a) material to the claims asserted by the Plaintiffs (b) cannot

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reasonably be obtained from any other source and (c) there is no basis to modify nor quash

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subpoena as explained below.

A. Information requested is material to the claims asserted by the Plaintiffs, and not reasonably attainable from any other source.

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As evident by the facts recited above, SPOG is completely interwoven with SPD rank and file officers. SPOG has a history of influencing and impacting policy and standards through collective bargaining agreements that have a direct effect on the Seattle Police Department. It has regularly injected itself into the City’s response and handling of the George Floyd/BLM protests – both through action and the “indirect” directions and positional statements from its President.

This has been accomplished through SPOG direct broadcasts to membership, through public statements by its President, video/social media postings from the SPOG social media account disparaging Plaintiffs, and heavy-handed police tactics used on protesters outside the SPOG headquarters. This information that is in the sole possession of SPOG is fundamental to explaining the City’s liability for the events occurring during the Summer of 2020.

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It is not enough for SPOG to say that we should get the requested information from the SPD or City which probably has only a fraction of SPOGs materials. The SPD and City are governmental entities. They are not SPOG which is a private entity but acts like a pseudo governmental entity in terms of its influence over the governmental process. SPOG is a separate legal entity which maintains its own records and files. SPOG seeks to be above the law – not subject to discovery – a ghost type of organization that can wield its strength and sphere of influence without being subject to the power of the subpoena. This reasoning by SPOG should fail.

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“The fundamental principle of discovery is that a party ‘may obtain discovery regarding

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any matter, not privileged, which is relevant to the subject matter involved in the pending action

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....’” Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 777, 819 P.2d 370 (1991) (quoting CR

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26(b)(1)). In this regard, Rule 1 of the Washington Rules for Superior Court states that the civil

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rules “shall be construed and administered to secure the just, speedy, and inexpensive

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determination of every action.” The Federal Rules of Civil Procedure have an identical rule. Fed.

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R. Civ. P. 1. “There probably is no provision in the [ ] rules that is more important than this

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mandate. It reflects the spirit in which the rules were conceived and written, and in which they

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should be, and by and large have been, interpreted .... The Supreme Court of the United States has

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stated that these rules are to be accorded a broad and liberal treatment.'” Oakes v. Halvorsen

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Marine Ltd., 179 F.R.D. 281, 283 (D. Cal. 1998) (quoting Trevino v. Celanese Corp., 701 F.2d

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397, 405 (5th Cir. 1983)).

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CR 26(b)(1) states, in relevant part, that:

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Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The information sought in the current Subpoena Duces Tecum is relevant to the claims Plaintiffs must prove against the City of Seattle. These include claims for negligence; assault and battery; false imprisonment; constitutional violations; and Seattle Municipal code violations which prohibit the communication of false or derogatory statements with the intent to disrupt lawful political activity. 14.12.280.B, and Seattle Municipal Code 14.11 which prohibits biased policing.

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blaming the protesters, framing the protests as riots, and justifying the use of brutal mass force to

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quell the threat that free speech presented. Since the individual officers will be witnesses – and

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since almost all of them are also members of SPOG – and since much of their philosophy on use

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of force to deal with anti racist first amend protests and all of their employment advocacy stems

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from the rhetoric of SPOG and its President, the Subpoena is proper.

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B. The information sought is highly material and relevant to the case and is not unduly burdensome.

Washington Civil Rule 45 tracks the Federal Civil Rule 45, under the Federal Rules undue burden has been defined. Whether a subpoena imposes an undue burden upon a witness is a casespecific inquiry that turns on such factors as relevance, need of party for documents, breadth of document request, time period covered by request, particularity with which documents are described, and burden imposed. See Am. Elec. Power Co. v. United States, 191 F.R.D. 132, 136 (S.D. Ohio 1999); Nat’l Labor Relations Bd. v. Bakersfield Californian, 128 F.3d 1339, 1343 (9th Cir. 1997) (holding that the NLRB had authority to issue the subpoena because procedural requirements were followed, the subpoenaed evidence was relevant and material to the investigation, and the defendant did not show that the subpoena was unreasonable because it was overbroad or unduly burdensome).

Investigating the events surrounding the Black Lives Matter Protests during the summer of 2020 requires SPOG documents and cooperation outlined in CR 45. SPOG is not a neutral bystander. It represents almost every SPD officer. SPOG played an active, almost daily, role in expressing animosity towards BLM protesters. It selectively orchestrated and publicly pushed a narrative that was unfavorable toward protesters and favorable toward SPD officers. It advocated for use of force tactics publicly and directly with the City of Seattle and SPD leadership. It appeared alongside officers in OPA hearings to defend them against excessive force complaints – ER M OORE S TR ITM ATTE R KE S SLE R KOE HL PLAINTIFFS’ MOTION TO COMPEL SEATTLE POLICE OFFICERS GUILD (SPOG) TO COMPLY WITH SUBPOENA DUCES TECUM - 17

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indeed some of those complaints were made by our clients. And its collective bargaining

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agreement grants them power to directly influence police accountability policies and standards.

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SPOG does not likely have a good framework to challenge what an “undue burden” means.

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Because by standing firm on its position that it is not subject to service of subpoena process – it

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does not have a history of actually complying with a significant discovery request such as is

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proffered in this historic personal injury first amendment civil rights case. The fact that SPOG

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will need to spend some time word searching through its files to locate relevant documents, does

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not overshadow the Plaintiffs’ right to pursue redress for the police attacks which they endured

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during their constitutionally protected marches.

C. Information requested is proper under CR 45, as there is no basis to quash or modify the subpoena.

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CR 45 does provide certain grounds by which a Court can quash or modify a Subpoena.

Although none of those have been asserted by SPOG, even if they were asserted, none of the bases seem to apply in this case. Under CR 45 (c) (3)(A) the Court may quash or modify the subpoena if it: (i)

fails to allow reasonable time for compliance.

In this case the Subpoena was issued on October 6, 2021 and required production

on October 27, 2021. As is always the practice of this law firm, SPOG’s lawyer could have easily negotiated a later date or time. (ii)

fails to comply with RCW 5.56.010 or subsection (e)(2) of this rule.

Those provisions relate to witnesses who are geographically remote, which is not

the case in this matter. (iii)

requires disclosure of privileged or other protected matter an no exception or waiver applies.

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In this case, no express claim of privilege has been asserted that would preclude

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production of the documents. Where “information subject to a subpoena is withheld on a

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claim that it is privileged … the claim shall be made expressly and shall be supported by a

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description of the nature of the documents, communications, or things not produced that is

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sufficient to enable the demanding party to contest the claim.” CR 45(d)(2)(A). A “[f]ailure

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by any person without adequate excuse to obey a subpoena … may be deemed a contempt

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of the court from which the subpoena issued.” CR 45(g). Here SPOG has not identified

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with specific particularity what documents fall under a claim of privileged as required by

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CR 45, therefore their claim of privilege fails.

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(iv)

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Subject a person to undue burden, provided that, the court may condition denial of the motion upon a requirement that the subpoenaing party advance the reasonable cost of producing the books, papers, documents, or tangible things....

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As stated previously the legal standard for deciding if a party is subject to undue

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burden is a fact specific inquiry weighing the relevancy of the information requested on

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the burden to the subpoenaed party. Here SPOG has information highly relevant to the

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litigation, and they are the main source of this information, and the requests.

VI.

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CONCLUSION

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For all of these reasons Plaintiffs respectfully request the Court to compel the records

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deposition and subpoena duces tecum of SPOG, and to deny its Counsel’s objections. A proposed

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order is attached.

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/////

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///

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//

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DATED this 3rd day of November, 2021.

I certify that this memorandum contains 4,198 words, in compliance with the Local Civil Rules.

STRITMATTER KESSLER KOEHLER MOORE

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Karen K. Koehler, WSBA#15325 Lisa Benedetti, WSBA#43194 Gemma N. Zanowski, WSBA#43259 Melanie Nguyen, WSBA#51724 Fred Rabb, WSBA#56336 Co-Counsel for Plaintiffs

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Sarah Lippek, WSBA # 46452 Co-Counsel for Plaintiffs

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CERTIFICATION I hereby certify that on November 2, 2021, I delivered a copy of the document to which this certification is attached for delivery to all counsel of record as follows: Defendant City of Seattle Ghazal Sharifi Joseph Groshong Rebecca Widen Carolyn Boies Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 Ghazal.sharifi@seattle.gov Joseph.Groshong@seattle.gov Rebecca.widen@seattle.gov Carolyn.boies@seattle.gov Tamara.stafford@seattle.gov Autumn. derrow@seattle.gov Marisa.johnson@seattle.gov Jennifer.litfin@seattle.gov Kelly.nakata@seattle.gov Daviana.kadiyan@seattle.gov & Mark S. Filipini Michael D. McKay Martha J. Dawson G. William Shaw Ryan Groshong K&L Gates LLP 925 Fourth Avenue, Suite 2900 Seattle, WA 98104-1158 Mark.filipini@klgates.com Mike.mckay@klgates.com Martha.dawson@klgates.com Bill.shaw@klgates.com Ryan.groshong@klgates.com Sabrina.mitchell@klgates.com Defendant King County Samantha Kanner Ann Summers Senior Deputy Prosecuting Attorneys Attorneys for Defendant King County

U.S. Mail Fax Legal messenger Electronic Delivery (via KCSC Efiling/email delivery)

U.S. Mail Fax Legal messenger Electronic Delivery (via KCSC S TR ITM ATTE R KE S SLE R KOE HL ER M OORE Efiling/email delivery) 3600 15 T H Av e Wes t, Suit e 300

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1191 2nd Avenue, Suite 1700 Seattle, WA 98101 samantha.kanner@kingcounty.gov ann.summers@kingcounty.gov kris.bridgman@kingcounty.gov rmunozcintron@kingcounty.gov Counsel for Plaintiff Widmayer Neil T. Lindquist Kornfeld, Trudell, Bowen & Lingenbrink 3724 Lake Washington Blvd NE Kirkland, WA 98033 neil@kornfeldlaw.com For Seattle Police Officers Guild (SPOG) Kelly Sheridan Corr Cronin, LLP 1001 Fourth Avenue, Ste 3900 Seattle, WA 98154-1051 ksheridan@corrcronin.com jbender@corrcronin.com claporte@corrcronin.com mdawson@corrcronin.com

U.S. Mail Fax Legal messenger Electronic Delivery (via KCSC Efiling/email delivery) U.S. Mail Fax Legal messenger Electronic Delivery (via KCSC Efiling/email delivery)

Hillary McClure Vick, Julius, McClure, PS 6506 6th Avenue South, Ste 201A Seattle, WA 98108 hillarym@vjmlaw.com

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s/ Alysha Koehler Alysha Koehler APR 6 Legal Intern

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