Three former prosecutors suing Patrick Flaherty are asking a federal judge to issue a judgment in their favor, alleging the Deschutes County district attorney has been deliberately deceptive and destroyed emails, a computer and other evidence that would help their case.

Former deputy district attorneys Phil Duong, Brentley Foster and Jody Vaughan filed the lawsuit in April 2011, claiming Flaherty unlawfully fired them when he took office because they tried to form a union. The lawsuit asks for more than $22 million in damages.

Flaherty was elected DA in May 2010. He took office in January 2011.

Lawyers representing Duong, Foster and Vaughan filed two motions on Jan. 11, one asking that Flaherty turn over documents they believe have been improperly withheld under attorney-client or work-product privilege.

The second asks the court to sanction Flaherty for “spoilation of evidence,” alleging he allowed email and Facebook accounts to lapse, didn’t properly search for documents that were part of discovery, and even wiped his hard drive and recycled his computer in an attempt to avoid turning over evidence that could help the former prosecutors’ case.

Flaherty, through his assistant, declined to comment, citing pending litigation.

“We clearly dispute the representations made,” Flaherty’s attorney, Keith Bauer, said. “Within the documents there are some places where they clearly contradict themselves.”

Bauer said his office plans to file responses to the motions, though he said he didn’t have a firm date when they would be ready. According to court documents, responses are due Jan. 28.

“Folks have different ways of trying to prosecute their cases and make different attempts to position themselves,” Bauer said of the motions. “We’ll be filing motions of our own.”

“Mr. Flaherty, through his attorney, will be given the opportunity to respond and I anticipate that after his response is filed we will be scheduled for a court hearing before the judge to discuss these issues,” said Portland attorney Judy Snyder, who represents Duong.

‘No ordinary defendant’

A memo to support the sanctions alleges Flaherty purposely destroyed evidence.

“While this type of misconduct is troubling from any defendant, Flaherty is no ordinary defendant,” the memo states. “He is an attorney licensed to practice law in the state of Oregon, an elected official and the highest ranking legal authority in Deschutes County. Flaherty also is a legal expert on evidence.”

The memo claims Flaherty in December 2010 or January 2011 received litigation hold notices, requiring him to preserve evidence, but that he let a primary email address — pat@flahertyforda.com — expire in January 2012 without searching for communications that might be discoverable evidence.

A second email address, which the memo alleges was set up primarily to communicate about hiring decisions that are at the center of the federal litigation, also lapsed, as did a Facebook page used for Flaherty’s campaign for DA.

Pat Horton, a former Deschutes County District Attorney who first volunteered his help to Flaherty during his transition into office and then worked for about six months as a deputy district attorney, produced as part of discovery some emails sent by Flaherty from that now-closed account that discussed hiring, the union and articles published in The Bulletin.

Some emails that Horton turned over indicate Flaherty sought access to former prosecutors’ Facebook accounts and looked through their old work emails to investigate the handling of older cases.

The memo also alleges Flaherty recycled the personal computer he was using at the time, wiping its hard drive. In his deposition, Flaherty said the computer was breaking down. According to his deposition, he was not able to find any notes from the prosecutor interviews he conducted before taking office, including interviews of Duong, Foster and Vaughan. The list of questions asked during the interviews was on the computer that no longer exists.

“In other words, at a time when he knew that litigation was likely, Flaherty went to the effort to personally scrub the hard drive on his laptop to remove any data from it,” the memo states.

In a deposition mentioned in the memo, Flaherty said he may still have documents relevant to the case that he hadn’t yet tracked down because he considered the lawsuit a “low priority” and a “massive obstruction” of his office. He said in the deposition that there may be as many as nine boxes containing documents he had not yet looked through.

“Any defendant who engages in flagrant disregard of his legal obligations and overt destruction of relevant evidence in the manner that Flaherty has would warrant the court’s most severe sanction: dismissal or default judgment,” the memo states. “… Anything less than the ultimate sanction would completely undermine the Court’s integrity.”

Email, computer

The second motion asks the court to compel Flaherty to provide documents that until now he has claimed are not discoverable as part of attorney-client and other privileges.

Flaherty sought legal advice from local attorney Martin Hansen in October 2010, months before he was sworn into office. The legal advice was related to labor and employment issues surrounding his impending term as DA. Hansen did not return a call for comment.

Usually, a memo written to support the motion to compel states, those conversations would be subject to attorney-client privilege.

But the former deputies say that when a third party was present in meetings or was included on emails, that privilege does not apply.

The former prosecutors want an order from the court forcing Flaherty to turn over a series of Horton’s emails, as well as any of Flaherty’s emails between himself and Hansen’s office that have a third party copied on them; and for Flaherty and Horton to testify about the emails and other conversations with Hansen.

“During discovery, Plaintiffs learned that Flaherty shared with Mr. Horton and perhaps Ms. Anderson the advice he was receiving from (Hansen). He may have even included them in discussions he had with Mr. Hansen about whether or not they should interview some incumbent deputy district attorneys, specifically Plaintiff Vaughan,” the memo states.

Because Horton was not employed at the time he was assisting with the process and because Flaherty was seeking advice as a private citizen, the memo states, his attorney-client privilege doesn’t stand.

Horton produced emails, but Flaherty’s attorney asked they be withheld, claiming they were work product or subject to attorney-client privilege.

According to a log detailing documents Flaherty believes are privileged, the emails include, among other topics, discussion of the proposed union contract, the collective bargaining agreement, conversations with county commissioners about the union, and Flaherty’s refusal to hire Duong.

“Flaherty’s communications do not receive special protection simply because he gives the group of private citizens with whom he is talking a nifty title like ‘transition team,’ ” the memo states.

The information contained in the emails in question also can’t be obtained in any other way, the memo states, making them necessary for disclosure. The memo also notes Horton and Flaherty both state in their depositions they can’t remember information discussed in many meetings with Hansen.

Horton said Wednesday that he had alerted attorneys on both sides that the issue of attorney-client privilege might come up.

“I don’t care either way,” he said of whether the emails and communications are protected. “I’m happy to comply with either what (the attorneys) agreed to or what the judge decides is the appropriate thing to do.”

Timeline

Major events in the federal lawsuit against Patrick Flaherty

May 18, 2010: In a primary election, Patrick Flaherty, who once served as chief deputy DA, unseats Deschutes County District Attorney Mike Dugan, who was first elected to the office in 1986. It was the first time Dugan had faced an opponent in more than 15 years.

Sept. 14, 2010: Deschutes County prosecutors vote to unionize amid discussions about possible employment shake-ups in the DA’s Office.

Jan. 3, 2011: Flaherty is sworn into office and fires five deputy DAs. Traci Anderson is hired as chief deputy DA.

April 1, 2011: Three of the fired prosecutors – Phil Duong, Brentley Foster and Jody Vaughan – sue Flaherty, Deschutes County, and county commissioners Alan Unger, Tammy Baney and Dennis Luke. The lawsuit asks for $21 million in damages and alleges the trio were unlawfully targeted them for firing because they actively tried to form a union.

Oct. 24, 2011: A federal judge dismisses the county and commissioners from the lawsuit.

Jan. 11, 2013: Plaintiffs file two motions, one asking the judge to sanction Flaherty for destroying or hiding evidence, another asking the judge to compel production of documents the plaintiffs believe aren’t subject to attorney-client privilege.

Major events in the federal lawsuit against Patrick Flaherty

May 18, 2010: In a primary election, Patrick Flaherty, who once served as chief deputy DA, unseats Deschutes County District Attorney Mike Dugan, who was first elected to the office in 1986. It was the first time Dugan had faced an opponent in more than 15 years.

Sept. 14, 2010: Deschutes County prosecutors vote to unionize amid discussions about possible employment shake-ups in the DA’s Office.

Jan. 3, 2011: Flaherty is sworn into office and fires five deputy DAs. Traci Anderson is hired as chief deputy DA.

April 1, 2011: Three of the fired prosecutors — Phil Duong, Brentley Foster and Jody Vaughan — sue Flaherty, Deschutes County, and county commissioners Alan Unger, Tammy Baney and Dennis Luke. The lawsuit asks for $21 million in damages and alleges the trio were unlawfully targeted for firing because they actively tried to form a union.

Oct. 24, 2011: A federal judge dismisses the county and commissioners from the lawsuit.

Jan. 11, 2013: Plaintiffs file two motions, one asking the judge to sanction Flaherty for destroying or hiding evidence, another asking the judge to compel production of documents the plaintiffs believe aren’t subject to attorney-client privilege.