Oakpointe subpoenas non-resident critics in Black Diamond OPMA case

Kristen Bryant and Brain Derdowski, non-parties to the Open Public Meeting Act lawsuit, say the developer is causing them ‘undue burden,’ and chilling free speech and association.

In the most recent turn of legal events in Black Diamond, developer Oakpointe has shifted its gaze toward two citizens well-known at council meetings: Kristen Bryant and Brian Derdowski.

Earlier this summer, Bryant and Derdowski were served with subpoenas by the developer’s attorney and were told to be available for deposition and turn over all documents relating to their communications with Black Diamond council members Pat Pepper, Brian Weber and Erika Morgan, the defendants in Oakpointe’s Open Public Meetings Act lawsuit.

Derdowski’s deposition was scheduled for Sept. 5, and Bryant’s is scheduled for Sept. 6. Both remain non-parties in the lawsuit against the Black Diamond council members.

Bryant and Derdowski were familiar faces in Black Diamond long before the OPMA lawsuit was filed with the King County Superior Court.

Bryant grew up in Black Diamond, and although she now lives in Bellevue, continues to come back to her hometown where her parents live.

“Black Diamond growing at the speed of YarrowBay is just crazy,” Bryant said in a Sept. 1 interview. “The entire region — the roads, the taxpayers, the forests, the wildlife, will suffer from their government-subsidized development.”

Derdowski is a former King County council member.

Both were subpoenaed because of their close connection to Pepper, Weber and Morgan, particularly their alleged roles surrounding the creation of the City Council’s controversial 2016 rules and procedures and committee meetings, Oakpointe’s legal briefs about the subpoenas state.

“Brian Derdowski and Kristen Bryant, at the request of the defendant council members, are the parties that drafted the new Black Diamond Council Rules at the center of this controversy,” Oakpointe’s Director of Legal Affairs Megan Nelson wrote in an email interview. “Derdowski and Bryant have also provided scripted responses to the defendants for Black Diamond Council meetings. As the drafters of these rules and scripts, Derdowski and Bryant should be in possession of these materials as well as correspondence with the defendant council members regarding their content.”

Nelson added that Oakpointe believes Derdowski and Bryant may have facilitated OPMA violations by orchestrating serial or rolling meetings between Morgan, Pepper and Weber through which the three took legislative action.

The allegations that Bryant and Derdowski helped Pepper, Weber and Morgan commit OPMA violations have been denied by all five.

Bryant and Derdowski were served with their subpoenas on June 29.

In addition to deposition, the documents Oakpointe sought in their subpoenas includes all communications sent to and from Pepper, Weber and Morgan; all documents given to them by the council members; all letters, emails, proposed legislation, scripts, and agendas they helped draft for the council members; all notes associated with Black Diamond council and committee meetings; and invoices and receipts related to their work with council members.

The documents were originally requested to be produced by Aug. 7.

Both Bryant and Derdowski filed written briefs opposing their subpoenas.

“I will comply with the order as far as my attendance is required, but I object to production of the documents you have requested as creating an undue burden and infringing on my rights as a citizen,” Bryant wrote in her pro se response, adding that she will not produce any documents without a court order, since several of the documents being requested show communications between her and other private citizens, subject to attorney-client privilege, or are uniquely personal to her.

Derdowski’s initial objection also claimed producing those documents will bring undue burden, that some documents are uniquely personal or subject to attorney-client privilege, and the subpoena infringes on his right to free speech.

Oakpointe filed a motion with the King County Superior Court to compel Bryant and Derdowski to be available for deposition and to produce the requested documents on July 31 and Aug. 10 respectively.

In their objections to the motions to compel, Bryant (now having hired an attorney) and Derdowski continued to argue the production of the requested documents violated their right to free speech and would chill the exercise of first amendment rights among Black Diamond residents.

“If people feel that by working on an issue with City Council members, they could get hauled into court by YarrowBay, how many people are going to make the time to get involved?” Bryant said. “Do we want government by developers or by the people?”

King County Superior Court Judge Janet Helson, who is the judge overseeing the OPMA case, ruled in favor of Oakpointe’s motion to compel on Aug. 16.

Helson wrote that while Bryant and Derdowski met the requirements to show producing the requested documents would harm their right to association under the First Amendment, Oakpointe also showed “the relevance of the information sought, and that reasonable efforts to obtain the information by other means have been made and have been unsuccessful.”

“Having determined both parties have met their burdens, the court then must balance the claim of privilege against the need for disclosure to determine which is the strongest,” Helson wrote. “The court finds that the need for disclosure outweighs the claim of privilege… The plaintiff is not merely speculating, but has produced evidence suggesting that the third party witnesses likely have information probative of (the OPMA violation) claim, and may have been involved directly in discussions with the individual defendants regarding how the OPMA might apply to the individual defendants’ activity.”

The court ordered Bryant and Derdowski to produce a narrowed list of requested documents by Aug. 22 and 23 respectively.

The narrowed list allowed Bryant and Derdowski to not disclose documents or communications already in possession of Oakpointe via Pepper, Weber or Morgan’s communication records; communications between themselves, unless those communications also involved Pepper, Weber or Morgan; notes taken during council or committee meetings, unless they were shared with the council members or if Bryant or Derdowski were taking notes as “acting staff” or other official capacity; notes taken during non-official meetings, unless at least two council members were present or those notes were shared; and any campaign contributions Bryant and Derdowski may have made to the council members.

Any documents Bryant and Derdowski claim to have attorney-client privilege or are uniquely personal would first be lodged with the court to determine whether any of those communications or documents should be withheld or redacted.

Bryant and Derdowski filed a motion to seek review of Helson’s decision by the Court of Appeals on Aug. 21.

“It’s pretty clear from the demands YarrowBay made for every single document the council members ever touched, and now every document I ever touched, that they don’t have any evidence of an Open Meetings violation,” Bryant said. “They are trying to make up a scenario that might be an issue because I talked to three council members at separate times. There is nothing wrong with that. The court of appeals could look at the scenario and make a ruling instead of compelling citizens to give over documents that in the end do nothing but waste more time and money.”

Bryant and Derdowski compel order by Ray Still on Scribd

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