§14.3 The Work Product Exemption

• Jurisdiction: Washington

§14.3 THE WORK PRODUCT EXEMPTION

The long-standing work product exemption in RCW 42.56.290 is a corollary to the attorney-client privilege. The latter exempts privileged information irrespective of litigation, whereas RCW 42.56.290 requires that exempt records be "relevant to a controversy." Further this statute exempts records that "would not be available ... under the rules of pretrial discovery ...." Id. These rules exempt the work product of an attorney from discovery.

(1) The nature of the doctrine and what it covers

CR 26(b)(4), which is based on the common-law work product doctrine, provides that a party may obtain documents otherwise discoverable and prepared in anticipation of litigation only upon a showing of "substantial need."

The courts will apply the civil definition of "work product" even though the underlying dispute is criminal in nature and might therefore have to be disclosed in criminal discovery. Koenig v. Pierce County, 151 Wn.App. 221, 229, 211 P.3d 423 (2009); see also Limstrom v. Ladenburg (Limstrom II), 136 Wn.2d 595, 606, 963 P.2d 869 (1998) (pretrial discovery rules referenced in RCW 42.56.290 "are those set forth in the civil rules for superior court, CR 26 "); Limstrom v. Ladenburg (Limstrom IV), 110 Wn.App. 133, 143-44, 39 P.3d 351 (2002) (applying the Limstrom II holding but ruling that a prosecuting attorney's disclosure under CrR 4.7 did not waive the work product exemption in RCW 42.56.290).

"Work product" includes factual information collected or gathered by an attorney, the party, or the party's representative (such as an investigator) in anticipation of litigation. "Work product" also includes records that reflect the party's opinions, theories, and strategies, such as advice memoranda prepared by legal counsel. Soter v. Cowles Publ'g Co., 162 Wn.2d 716, 734-47 &n. 9, 174 P.3d 60 (2007) (analyzing privilege and noting that litigation strategy records need not be prepared by an attorney to be protected); Limstrom II, 136 Wn.2d at 606. These two types of work product are commonly referred to as "gathered," "factual," or "ordinary" work product, on the one hand, and "opinion" or "privileged" work product on the other. Soter, 162 Wn.2d at 738-39 & n.9, 747-48 (identifying two types of work product). Records that fall into the first category are protected not because disclosure will give away any confidential information in the document but because disclosure could reveal the party's litigation strategy. Koenig, 151 Wn.App. at 235. In Doehne v. EmPres Healthcare Management, LLC, 190 Wn.App. 274, 360 P.3d 34 (2015), the Court of Appeals addressed a challenge to claims that a paragraph in a report prepared by an employee provided to a risk manager, and ultimately to the company's attorney, was protected by the attorney-client and work product privilege. The court held that the paragraph as a whole was protected by the attorney-client privilege and that its final sentence was protected opinion work product because the report was prepared to assist in-house counsel in addressing potential risk and liability issues, even though its author was not a lawyer. Id. at 276-77. Although not a PRA case, the decision demonstrates that communications between nonattorney employees may be subject to the attorney-client privilege or work product protection. Note that by ruling that only the final sentence of the memorandum qualified as "work product," the court is necessarily recognizing that the "ordinary business activity" of a risk-management department, like an insurance company, includes the processing of claims, and therefore more that the mere submission of...