Case dismissed: WSDOT seeks sanctions against former employee and his lawyers over baseless lawsuit

OLYMPIA – The Washington State Department of Transportation is asking a judge to sanction both the law firm and the former employee who spent more than a year pursuing an unfounded lawsuit against the agency, only to later drop the case when confronted with evidence he likely destroyed text messages in violation of a court order.

In court filings (PDF 355KB), WSDOT asks to be reimbursed for the taxpayer dollars required to defend the case. WSDOT argues that, early on, the Citizen Action Defense Fund law firm had ample evidence that the case was not "well-grounded in fact," as required by court rules. In addition, it asks the judge to sanction former employee Scott Smith for not following a court order to save text messages from a crucial period. Smith initially said the messages didn't exist. When the state presented evidence of the texts from other individuals' phones, Smith changed his story, claiming they were "lost."

WSDOT previously requested a forensic examination of Smith's phone. "That suspicious timing and other facts make it highly likely these 'lost' text messages were deleted by Smith himself, though only a forensic examination of his phone could ascertain that with certainty," the WSDOT court filing states. Before the court could rule on WSDOT's request for a forensic review of his phone, Smith withdrew his case.

Defendants are not typically entitled to their costs and fees when successfully defending a lawsuit. However, because Smith and his attorneys pursued the case knowing the claims were baseless, and because the state asserts Smith destroyed text messages, WSDOT is asking the court to order Smith and Citizen Action Defense Fund to pay its costs and fees for defending the case as a sanction. The amount of these fees would be determined in a separate hearing.

Smith left WSDOT in November 2023. In March 2024, Smith filed a lawsuit claiming WSDOT retaliated against him as part of an alleged conspiracy to cover up the effects of Washington's cap-and-invest program on fuel prices. Depositions and extensive documents produced in discovery disproved Smith's allegations.

In April 2024, an outside investigation likewise did not substantiate any of Smith's claims, including his claims about the integrity of the state's transportation forecast.

In February 2025, WSDOT informed Citizen Action Defense Fund that the agency might seek sanctions because the firm pursued the lawsuit despite having received numerous records disproving Smith's claims. WSDOT offered to not seek sanctions if the law firm ended the case. Instead, Citizen Action Defense Fund rejected WSDOT's offer and insisted on prolonging the baseless lawsuit, thereby increasing the cost to taxpayers.

During the subsequent proceedings, WSDOT's lawyers discovered a gap in Smith's text messages. According to the new WSDOT filing, Smith's lawyers told WSDOT he did not text a former co-worker during the four-month period, but when the co-worker's messages were subpoenaed, they included several highly relevant texts from Smith during that time. Further investigation found similar conspicuous gaps in Smith's texts with at least 10 other individuals.

Shortly after WSDOT notified Citizen Action Defense Fund about the text message discrepancies, the law firm said it would need to stop representing Smith due to professional ethics concerns. The firm later reversed that decision and continued to represent Smith. Soon after that, Smith asked the judge to dismiss the case. The judge granted that request Friday, May 16, ending Smith's lawsuit, while noting that WSDOT still could pursue a sanctions request.

The sanctions matter is scheduled for a hearing Friday, Aug. 22, in Thurston County Superior Court.