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Recent court filing reveals that 191 texts from former mayor’s phone were manually deleted after fatal riots in Seattle

SEATTLE — A newly disclosed forensic analysis reveals that 191 texts were manually deleted from the iPhone of former Seattle mayor Jenny Durkan in the months following her administration’s controversial response to racial justice protests in June 2020, according to the most recent court filings in a federal lawsuit.

The previously unknown manual text deletions from Durkan’s phone are among the revelations contained in an expert’s 32-page report completed in April. The report also reveals that “factory resets” were performed on the phones of six other city officials in the fall of 2020, resulting in the deletion of thousands of additional text messages.

Along with a multitude of other exhibits, the expert’s report was filed late Wednesday in U.S. District Court in Seattle to bolster new arguments raised by attorneys for several businesses and residents suing the city for damages allegedly caused by Seattle’s toleration of a sprawling protest zone for weeks two years ago.

In an accompanying motion, attorney Angelo Calfo seeks a default judgment and sanctions against the city, claiming Seattle authorities destroyed relevant evidence that may have helped prove the plaintiffs’ case after they filed their lawsuit.

The motion asserts that Durkan, former Police Chief Carmen Best, Fire Chief Harold Scoggins, and numerous other Seattle officials deleted tens of thousands of text messages “long after this lawsuit began and in flagrant contempt of their responsibilities to retain their texts.”

Calfo’s motion argues, “The City’s explanation for… why the officials deleted the texts using factory resets, 30-day auto deletions, and manual deletions is either nonexistent or implausible.” “Only one conceivable explanation exists. These officials planned to withhold critical evidence from the plaintiffs, thereby damaging their case and making the city’s defenses difficult to refute.”

Thursday, the office of Seattle City Attorney Ann Davison, who is defending the city, declined to comment on the most recent filings, but filed a request for sanctions against the plaintiffs, including business owners, landlords, and residents, for allegedly deleting evidence.

It is asserted that at least two of the plaintiffs “deliberately, manually deleted their text messages about” the protest zone after the complaint was filed, although knowing they were prohibited from doing so, and have taken no steps to retrieve them. According to the city’s move, a number of other plaintiffs discussed the protests via a messaging app with “disappearing” communications.

Durkan, a former U.S. Attorney who did not seek re-election after her single stint as Seattle’s mayor ended last year, announced Thursday through a spokesperson’s statement that the majority of her “largely harmless and irrelevant” texts had been recovered. According to her statement, she “absolutely believes in the public’s right to know what their government is doing.”

“The lawyers’ request is an intentionally misleading and misguided ‘Hail Mary’ attempt to preserve a meritless case,” the spokesperson stated.

Durkan has previously denied deleting any of her text messages on purpose or modifying her phone settings to erase them automatically.

Numerous texts were recovered or reproduced by the city, but those exchanged between key decision-makers during the height of the protests were destroyed.

Best, who abruptly resigned as chief in response to the 2020 demonstrations, did not respond to calls and emails. Best first told reporters she did not know how her texts were lost; however, she testified in a deposition for another case in May that she periodically erased her texts in bulk when she determined they did not include information requiring them to be kept.

The papers are the most recent development in a city controversy that has already prompted an ongoing investigation by the King County Sheriff’s Office to determine whether any current or past city officials have broken the law.

The dates of the city’s missing messages overlap a several-week period in June 2020, when major protests erupted in Seattle in response to the police killing of George Floyd in Minneapolis.

During that time, Seattle policemen equipped in riot gear used tear gas and violence to stop rallies, eventually abandoning a precinct station and allowing protesters to occupy six square blocks of Capitol Hill for over three weeks. Several shootings, including two fatalities, as well as other violent and property offenses were reported within the free-protest zone prior to its dissolution by the city.

The public learned about Durkan’s deleted texts for the first time in May 2021, when a public records officer’s whistleblower complaint spurred an ethics inquiry that determined the city violated state records law. By then, a number of lawsuits had been filed regarding the city’s handling of the protests, and dozens of requests for city officials’ communications from the time had been made.

The texts should have been preserved in accordance with laws governing public records and norms of legal evidence. According to Washington law, anybody who knowingly destroys a public document that is required to be retained is guilty of a felony punishable by up to five years in jail and a $1,000 fine.

Before King County Prosecuting Attorney Dan Satterberg forwarded the case to the county sheriff’s office three months ago, city, county, and state officials avoided requesting a criminal investigation for months. This investigation is still active.

Kevin Faulkner of the cybersecurity firm Unit 42 was engaged by the city to do a forensic study and attempt to recover Durkan and Best’s missing texts.

When it was finally released in February, the long-delayed report had cost the city over $500,000, but it failed to retrieve any of their missing texts or provide answers to a number of ostensibly crucial concerns regarding how they were erased.

Thousands of Durkan’s text messages vanished, according to the city’s investigation, because her phone settings were manually altered to delete texts older than 30 days and to “deactivate and erase” an automatic backup saving texts in the cloud.

According to the article, the phone setting modifications occurred in early July 2020, around the time Durkan said she dropped her phone in salt water and the city’s IT staff issued her a replacement phone.

However, the city’s study did not determine who manually changed the settings to remove the mayor’s texts, nor did it investigate how the texts of several other local officials — besides Best’s — disappeared.

The city’s investigation did not reveal any evidence that texts were removed manually from Durkan’s phone.

Brandon Leatha, the digital forensics specialist representing the plaintiffs, revealed evidence that, in addition to the automated 30-day deletion of 5,746 texts from the mayor’s phone, “an additional 191 communications were manually destroyed between June 25, 2020 and November 16, 2020.”

Leatha’s report also states that more than 29,000 of Best’s texts were deleted manually and automatically and were not backed up, and that the phones of five other city officials — Scoggins, chief police strategy officer Chris Fisher, assistant police chief Eric Greening, city utilities official Idris Beauregard, and Emergency Operations Center director Kenneth Neafcy — had factory resets performed between October 8, 2020 and November 3, 2020.

According to Leatha’s study, the city indicated that the resets, which resulted in the deletion of hundreds of more texts, were performed because the officials had forgotten their passwords or otherwise locked themselves out of their devices.

The plaintiffs’ amended motion reads, “The ‘coincidence’ of so many custodians losing passwords, resetting phones, and destroying iCloud backups is astounding.” The shifting narratives, hazy recollections, concealed manual deletions, and IT departures from standard procedure help clarify intent.

Based on Leatha’s findings, deposition testimony, and other evidence, Calfo’s motion also argues that Durkan reset her first phone and restored it with an outdated backup before handing it over to city IT employees in early July 2020.

The majority of the city’s texts were deleted, according to Leatha’s report, after plaintiffs’ attorneys advised the city to preserve evidence for the litigation. It also stated that the texts could have been obtained if the city had preserved phone data sooner.

Leatha told NBC News in a phone interview that he based his analysis on the same data used by the city’s expert in its report.

Earlier this year, Faulkner testified in a deposition that manual deletions from the former mayor’s phone “were not something I was requested to investigate and comment on” for the city’s report, according to a transcript submitted Wednesday by the plaintiffs’ attorneys.

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