§22.03 General Principles

• Jurisdiction: Washington

§ 22.03 GENERAL PRINCIPLES

[1] Relevancy

All relevant material is discoverable. Therefore, the first step in discovery is to determine whether the evidence sought is relevant. The test for determining the relevancy of questions is whether the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Thus, the standard of relevance for purposes of discovery is much broader than the standard required under evidence rules for admissibility at trial. J. Moore & J. Lucas, 4 Moore's Federal Practice § 26.56(4) (2d ed. 1987); see Barfield v. City of Seattle, 100 Wn.2d 878, 676 P.2d 438 (1984) (in a tort action against a police officer, the court held the Seattle Police Department's internal investigation files involving prior complaints of another were discoverable, as they might lead to admissible evidence).

Inquiry as to any matter that is or may become relevant to the subject matter of the action should be allowed, subject only to the objection of privilege. Thus, even though a request for maintenance is not pleaded, either party may inquire into the economic circumstances of the other because maintenance may become an issue in the action. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984) (in action by employee for wrongful discharge, employee's interrogatories directed at ascertaining reasons for dismissal were relevant and might lead to admissible evidence).

In applying this rule, be aware of CR 26(b)(1), which provides in pertinent part: "It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

Be aware that refusal to answer or produce material based on a unilateral determination that the requested information is not relevant could constitute willful violation of a discovery order and subject counsel to sanctions. See Gammon v. Clark Equip. Co., 38 Wn. App. 274, 686 P.2d 1102 (1984), aff'd, 104 Wn.2d 613, 707 P.2d 685 (1985), in which the court granted a new trial for defendant's dilatory action in producing accident reports of persons injured on a Bobcat tractor. The defendant made a determination as to which accidents were similar to the accident in the case and produced five reports before being compelled to produce evidence of more accident reports occurring on a Bobcat.

Counsel's signature on discovery requests and responses is a certification that counsel has drafted the discovery with a good faith belief in the veracity of the contentions and so as not to harass the opponent or delay litigation. If the attorney violates this rule, sanctions may be imposed. See generally CR 26(g); CR 11.

[2] Discovery of Lay Witnesses Spouse Intends to Call at Trial

The general rule is that the discovery of lay witnesses whom the opposing spouse intends to call at the trial of the cause is not available under the applicable rules. Under Agranoff v. Jay, 9 Wn. App. 429, 433, 512 P.2d 1132, review denied, 82 Wn.2d 1013 (1973), any request concerning witnesses must be limited to the identity and location of persons having knowledge of any discoverable matter but not the names of witnesses the party intends to call at trial. CR 26(b)(1). But see local rules such as King County LCR 4, which provides deadlines for disclosure of witnesses. The responding party cannot object to providing the identities of persons with knowledge on the grounds that it is work product. Agranoff, 9 Wn. App. at 434.

[3] Discovery of Trial Experts

Opinions held by trial experts, such as real estate appraisers, business consultants, career counselors, and furniture appraisers may be obtained through the procedures set forth in CR 26(b)(5). This procedure limits use of interrogatories to the following:

1. to identify all experts the other party expects to call at trial;
2. to set forth the subject matter on which an expert is expected to testify;
3. to state the substance of the facts and opinions to which an expert is expected to testify;
4. to set forth a summary of the grounds for each opinion; and
5. to state discoverable information about an expert.

See CR 26(b)(5)(A)(i). The inquiring spouse may depose each expert the adverse spouse identifies in answer to the above interrogatories. CR 26(b)(5)(A)(ii).

If discovery is performed by deposition, the party seeking deposition must pay the expert a reasonable fee. There is no such requirement for interrogatories. CR 26(b)(5)(C).

The rule prohibits parties from having contact with opposing party's expert witnesses. The only permitted communication is through interrogatories and deposition. It is, however, sometimes unclear whether a witness previously employed by opposing counsel remains an expert under CR 26. For example, the business's chief financial officer could be both a fact witness and an expert witness, especially if the business is separate. To avoid the appearance of impropriety, always follow CR 26(b)(5) and communicate through subpoenas and depositions when proceeding with any discovery or contacting the expert listed by the opposing party. In re Firestorm 1991, 129 Wn.2d 130, 916 P.2d 411 (1996).

There may be some difficulty in actually identifying when a witness is a fact witness or a trial expert. Experts not hired by either party are not deemed to be trial experts. See Kimball v. Otis Elevator Co., 89 Wn. App. 169, 947 P.2d 1275 (1997).

Some experts—such as treating physicians and family-certified public accountants—are only fact witnesses, as opposed to other physicians and certified public accountants who are retained to develop facts and opinions for trial. Paiya v. Durham Constr. Co., 69 Wn. App. 578, 580, 849 P.2d 660, review denied, 122 Wn.2d 1014 (1993). Notes from fact witnesses are properly discoverable. In re Acqui, 84 Wn. App. 88, 929 P.2d 436 (1996). Documents prepared for an individual who is not a party to litigation are discoverable, pursuant to CR 26(b). Johnson v. McCay, 77 Wn. App. 603, 893 P.2d 641 (1995). See § 20.04[1] in Chapter 20 (Use of Professionals in Family Law Litigation) of this deskbook.

But see Harris v. Drake, 152 Wn.2d 480, 99 P.3d 872 (2004) (in which Washington Supreme Court rejected the literal and narrow way in which this rule was applied in Johnson v. McKay).

[4] Discovery of Consulting Experts

A consulting expert is an expert who advises the attorney but is not expected to be called at trial. The scope of discovery governing consulting experts is narrower than the scope of discovery governing trial experts. Except as provided for in CR 35(b) regarding a court-ordered medical or mental health examination, CR 26(b)(5)(B) provides that a party may not discover facts known or opinions held by an expert who is not expected to be called as a witness at trial unless the party cannot obtain the information by consulting that party's own expert and there is a showing of "exceptional circumstances." Exceptional circumstances occur when it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. See Crenna v. Ford Motor Co., 12 Wn. App. 824, 532 P.2d 290, review denied, 85 Wn.2d 1011 (1975); CR 26(b)(5)(B).

Examples of exceptional circumstances in family law matters include the following:

• Counsel for the wife possesses a nonprivileged career counselor's report concerning the wife's potential for employment, and the wife refuses to be evaluated by a career counselor retained by the husband.
• One party has an appraisal of a diamond ring that is subsequently lost.
• A party has an appraisal of a fishing boat owned by the parties, which is moored in a foreign country at a remote location.

Absent a showing of exceptional circumstances, Washington courts have not allowed the requesting party to discover the identity of, nor depose, the consulting expert. Detwiler v. Gall, Landau & Young Constr. Co., 42 Wn. App. 567, 712 P.2d 316 (1986) (court held that identity of adverse party's nonwitness experts in personal injury case was not discoverable unless exceptional circumstances were shown); see also Mothershead v. Adams, 32 Wn. App. 325, 647 P.2d 525, review denied, 98 Wn.2d 1001 (1982).

The party may waive the protection, however, by listing the witness as a witness for trial, Mothershead, 32 Wn. App. 325; stipulating to use of the deposition, Pimentel v. Roundup Co., 100 Wn.2d 39, 666 P.2d 888 (1983), McCay, 77 Wn. App. 603; or having the consulting expert's report used by testifying trial experts in forming their own opinions, ER 612; Fed. R. Civ. P. 26(a)(2), (a)(2)(A), (a)(2)(B); Johnson v. Gmeinder, 191 F.R.D. 638 (D. Kan. 2000).

[5] Treating Health Care Professionals—Expert Witness Fee

A treating health care provider is not an expert as described in CR 26(b)(5), but is a fact witness, unless such facts and opinions were developed in anticipation of litigation. Paiya, 69 Wn. App. at 579. To be classified as an expert witness under CR 26(b)(5), the person must have been retained by a party to develop facts and opinions in anticipation of litigation. Id. at 580. Even when a professional is designated by counsel as an expert, if the information was not obtained or developed for the purpose of trial preparation, the witness is not an expert witness. Id. at 580-81.

In Paiya, the plaintiff suffered personal injuries and was treated by Dr. Lorge, a chiropractor. When defendant sought to depose Dr. Lorge, he applied for a protective order requiring defendant to pay expert witness fees of $300 per hour for his deposition. The trial court denied the chiropractor's motion, and the ruling was affirmed on appeal.

Although treating health care professionals are not entitled to expert witness fees, under CR 26(b)(7), "[t]he party seeking discovery from a treating health care provider shall pay a reasonable fee for the reasonable time spent in responding to the discovery."

Practice Tip: It would be unwise to use Paiya

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