Lawyers for victims suing Hawaiian Electric over this month’s deadly wildfire in Maui have subpoenaed a former consultant for the public utility, seeking his correspondence with top utility officials about their knowledge of wildfire risks and necessary upgrades to its power grid, according to a recent court filing.
The Friday subpoena seeks to depose Mark Thaller in Virginia on Sept. 25 and require him to turn over records of his exchanges with Hawaiian Electric officials, including documents related to wildfire mitigation plans and “Decisions to Defer wildfire mitigation CAPEX,” or capital expenditures, “to future years,” the court filing says.
The subpoena also seeks what it identifies as the “Thaller Letter,” which purports to be a notification of his concerns to the utility company’s board of directors, according to the filing.
The letter has several attachments, including documents characterized as a June 6 “Ethics Investigation” and an “Ethics Cover Up by Execs and Legal,” according to the subpoena. The planned deposition will include at least two dozen questions, which are listed in a separate filing with the subpoena, which appeared aimed at establishing Thaller’s relationship with the company and the veracity of the records, according to court filings.
Mikal Watts, one of the plaintiffs’ attorneys in the lawsuit, previously told NBC News that his legal team had planned to issue a subpoena duces tecum — a type of a subpoena that primarily seeks the production of documents — to a man whom Watts described as “a whistleblower” cooperating in the case.
“That subpoena has been issued, and we’re in the process of getting him served,” Watts confirmed Tuesday.
Watts previously declined to identify the whistleblower or answer questions about the subpoena, other than to say the man had referred to documents he could not share under his employment terms unless they were subpoenaed. Watts declined to elaborate about the matter Tuesday, other than to confirm the subpoena had been filed in court.
Thaller, 64, of Gainesville, Virginia, did not immediately respond to a voice message left for him Tuesday evening.
A spokesperson for Hawaiian Electric said late Tuesday the utility did not have a response to questions about the subpoena or Thaller.
Thaller’s Linkedin profile describes him as an “Innovator and Entrepreneur Intensely Focused on Impact” with a long list of academic degrees, including a doctorate of philosophy in conflict analysis and resolution. It also includes a professional biography that says he “strongly supports and promotes transparency, ethical compliance, and collaboration.”
“While at Hawaiian Electric he frequently communicated directly with the firm’s Board of Directors, CEO, President, and senior executives,” the biography says. “Most notably, he provided the firm’s General Counsel with the foundation of a new, equitable, and transparent Code of Ethics.”
Neither Thaller’s LinkedIn profile nor the subpoena provide complete dates for when Thaller worked with Hawaiian Electric.
The suit seeking to depose Thaller, titled Jan K. Apo v. Hawaiian Electric Industries, alleges that Hawaiian Electric helped set the stage for the catastrophic wildfires in the historic town of Lahaina on Aug. 8. It identifies videos and accounts from witnesses who allegedly saw downed power lines sparking the initial fires, and it accuses the utility company of years of inaction to upgrade power equipment and manage trees and other vegetation that utility officials knew posed dangers. The lawsuit also argues that the utility should have had a system to shut down its power grid before fierce winds whipped up sparks into an uncontrollable inferno.
The lawsuit is one of at least 13 filed since the fire, which has killed at least 115 people. Many other people remain missing.
Among those suing Hawaiian Electric is Maui County, which contended in a lawsuit filed last week that it caused the fire by failing to shut off power despite repeated warnings of high winds from Hurricane Dora and the potential fire dangers they posed.
Hawaiian Electric denied responsibility for the deadly blaze in a statement Sunday.
While it acknowledged that downed power lines most likely ignited a fire the morning of Aug. 8, the utility’s statement cited Maui County’s public declarations that that blaze had been “100 percent contained” and “extinguished” later that morning. The utility said that by the time the county reported a “flareup” at 3 p.m., all of its downed power lines had been de-energized for more than six hours.
Hawaiian Electric also said the official cause of the deadly fire has yet to be determined, and it called Maui’s lawsuit “factually and legally irresponsible.”
“We were surprised and disappointed that the County of Maui rushed to court even before completing its own investigation,” Shelee Kimura, Hawaiian Electric’s president and CEO, said in the statement.
“We believe the complaint is factually and legally irresponsible,” the statement said. “Unfortunately, the county’s lawsuit may leave us no choice in the legal system but to show its responsibility for what happened that day.”
Following the statement, Hawaiian Electric’s stock value, which had plummeted after the fires, soared by 44.6% to $13.97 — the biggest one-day percentage gain since the company went public in 1983.
John Fiske, a lawyer representing Maui County, said Monday that if Hawaiian Electric has “information of a second ignition source, HECO should offer that evidence now.”
“The ultimate responsibility rests with HECO to de-energize, ensure its equipment and systems are properly maintained, and ensure downed power lines are not re-energized,” he said in a statement.
Watts said Tuesday that Hawaiian Electric’s comments appear carefully constructed as part of a common defense strategy to diffuse liability. While it is directed at Maui County’s lawsuit, the statement has little relevance to most of the other lawsuits, he said.
“If you read it closely, they didn’t say there was a separate ignition source,” Watts said of the statement. “In a defensive posture to Maui County’s lawsuit, they’re saying: ‘Wait, a minute. You’re suing us for all this damage caused by the town of Lahaina burning up, but it burned after your people didn’t put out the fire correctly.’ So it’s more like a contributory negligence defense.”
