§26.6 Analysis

• Jurisdiction: Washington

§26.6 ANALYSIS

This section explores in detail discovery issues under CR 26.

(1)Discovery methods

CR 26(a) lists the methods of discovery: depositions upon oral examination (CR 30) or written questions (CR 31); written interrogatories (CR 33); production of documents or things or permission to enter upon land or other property for inspection and other purposes (CR 34); physical and mental examinations (CR 35); and requests for admissions (CR 36). Other than depositions (CR 30 and 31), these discovery methods may be used only in relation to a party.

(2)Discovery scope and limits

CR 26(b)(1) prescribes the scope of discovery. Many issues arise in its application. This section surveys these issues.

(a)In general

"The scope of discovery is very broad." Cedell v. Farmers Ins. Co. of Wash., 176 Wn.2d 686, 695,295P.3d239 (2013) (citing Coburn v. Seda, 101 Wn.2d 270,276,677P.2d173 (1984)). "The right to discovery is an integral part of the right to access the courts embedded in our constitution." Id. (citingLowy v. PeaceHealth, 114 Wn.2d 769, 776-77, 280P.3d1078 (2012)). As explained by the Washington Supreme Court in Lowy,

Besides its constitutional cornerstone, there are practical reasons for discovery. Earlier experiences with a "blindman's bluff approach to litigation, where each side was required "literally to guess at what their opponent would offer as evidence," were unsatisfactory. Michael E. Wolfson, Addressing the Adversarial Dilemma of Civil Discovery, 36 Clev. St. L.Rev. 17, 22 (1988). As modern day pretrial discovery has evolved, it has contributed enormously to "a more fair, just, and efficient process." Id. at 20. Effective pretrial disclosure, so that each side knows what the other side knows, has narrowed and clarified the disputed issues and made early resolution possible. As importantly, early open discovery exposed meritless and unsupported claims so they could be dismissed. It is uncontroverted that early and broad disclosure promotes the efficient and prompt resolution of meritorious claims and the efficient elimination of meritless claims.

174 Wn.2d at 777.

CR 26(b)(1) provides that parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter in the pending action. It includes both the claims and defenses of any party. It includes the existence, description, nature, custody, condition, and location of tangible things, and the identity and location of persons having knowledge of any discoverable matter. Information is discoverable even if inadmissible at trial if the information appears "reasonably calculated to lead to the discovery of admissible evidence." The standard of "relevance" under CR 26(b)(1) is broader than, and is not limited by, the standard of "relevance" for the admissibility of evidence at trial under ER 401. Barfield v. City of Seattle, 100 Wn.2d 878,886, 676 P.2d 438 (1984). The fact that the evidence sought "would otherwise be inadmissible at trial" is not an impediment to discovery, as long as the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Id. The Washington Supreme Court has affirmed the broad scope of discovery under CR 26(b)(1):

The only limitation [under the rule] is relevancy to the subject matter involved in the action, not to the precise issues framed by the pleadings, and inquiry as to any matter which is or may become relevant to the subject matter of the action should be allowed, subject only to the objection of privilege.

Bushman v. New Holland Div. of Sperry Rand Corp., 83 Wn.2d 429, 434, 518 P.2d 1078 (1974); see also Flower v. T.R.A. Indus., Inc., 127 Wn.App. 13, 38, 111 P.3d 1192 (2005), review denied, 156 Wn.2d 1030 2006) (Washington recognizes a "broad right of discovery which is subject to the relatively narrow restrictions of CR 26(c).").

There are limits, however, to the broad right of discovery under CR 26(b)( 1). Those limits are determined on a case-by-case basis, based on the allegations and claims pleaded. For example, the court in City of Lakewood v. Koenig, 160 Wn.App. 883, 891-92, 894 n.10, 250 P.3d 113 (2011), ruled that a party's past litigation history is not automatically discoverable in every case under CR 26(b)(1). A requesting party must demonstrate that the discovery of the information requested meets the requirements of CR 26(b)(1), i.e., is relevant to the subject matter of the pending action or is reasonably expected to lead to the discovery of admissible evidence. Id.

Atrial court has broad discretion under CR 26 to manage the discovery process and, if necessary, to limit the scope of discovery under CR 26(b) and (c) through issuance of protective orders under CR 26(c). Nakata v. Blue Bird, Inc., 146 Wn.App. 267, 277, 191 P.3d 900 (2008), review denied, 165 Wn.2d 1033 (2009). In Nakata, the court granted plaintiff's motion to amend her complaint to add other equitable causes of action. In granting the motion, the trial court limited the scope of discovery concerning the additional claims to certain financial information and imposed a deadline to complete discovery (which was later extended by the court). In determining whether discovery should be limited, either in scope or time, the court must balance the potential relevance of the information/documents requested against the burdens imposed upon the responding party. Id.

Identity of fact witnesses

CR 26(b) specifically allows discovery of the identity of persons having knowledge of any facts or discoverable matters. See Bard v. Intalco Aluminum Corp., 11 Wn.App. 342, 522 P.2d 1159, review denied, 84 Wn.2d 1012 (1974). This category of persons most certainly includes potential trial witnesses. In an early case after adoption of CR 26, Agranoffv. Jay, 9 Wn.App. 429, 512 P.2d 1132, review denied, 82 Wn.2d 1013 (1973), the appellate court ruled that the identity of actual trial witnesses is generally outside the scope of discovery. The validity of the Agranoff holding has been effectively nullified by local rules requiring parties to affirmatively disclose potential and expected trial witnesses during discovery. See, e.g., King County LCR 26(k); Pierce County LCR 26(b)-(d).

Electronic data discovery

The civil rules and Washington decisional law provide little guidance as to the scope and management of electronic stored information (ESI) discovery. Fed. R. Civ. P. 26 and related federal discovery rules do address ESI, including standards for ESI discovery and the court's authority to oversee and manage such discovery. A substantial body of federal decisional law now exists concerning ESI. It is reasonable to expect the Washington courts to rely on federal law for guidance concerning ESI discovery.

Some guidance concerning ESI under CR 26 can be found in O'Neill v. City of Shoreline, 170 Wn.2d 138, 145-49, 240 P.3d 1149 (2010). Although arising under the Public Records Act (PRA), Chapter 42.56 RCW, Washington courts apply similar discovery standards in litigation governed by CR 26. In O'Neill, the Supreme Court dealt with "metadata"—that is, "data about data, or hidden statistical information about a document that is generatedby a software program." Id. (quoting Jembaa Cole, When Invisible Electronic Ink Leaves Red Faces: The Tactical, Legal, and Ethical Consequence of the Failure to Remove Metadata, 1 Shidler L.J. Con. & Tech 8,15 (2005)). "Metadata is 'information describing the history, tracking, or management of an electronic document.'" Lake v. City of Phoenix, 222 Ariz. 547, 1005 n.l, 218P.3d1004 (2009) (quoting Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005)). Metadata from electronic files includes "information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information)." Williams, 230 F.R.D. at 646. Most metadata is generally not visible when a document is printed or when the document is converted to an image file. O'Neill, 170 Wn.2d at 142.

Metadata associated with e-mails and other ESI is subject to disclosure because "metadata in an electronic document is part of the underlying document [and] does not stand on its own." Lake, 218P.3dat 1007. Metadata may contain information that relates to the conduct of a party. It could conceivably include information about whether a document was altered, what time a document was created, or who sent a document to whom. O'Neill, 170 Wn.2d at 142.

Once it is on notice of a public record request, an agency must suspend any data management policy or procedure that would result in the loss or destruction of data or ESI responsive to the request. ESI to be retained includes associated metadata. Id. at 148-50. The obligation to provide requested ESI includes an agency's information that may be on the private computer of an employee. The O'Neill court ruled, in particular, that the City of Shoreline was obligated to search the hard drive of an employee's computer when the city knew the employee used her personal computer for city business. Id. at 150.

O'Neill parallels federal decisional law concerning litigation holds and the preservation of ESI once litigation is apparent. The duty to preserve ESI arises when a party reasonably anticipates litigation or when the party has actual notice that the evidence may be relevant to future litigation. Fujitsu Ltd v. Fed. Express Corp., 247 F.3d 423,436 (2d Cir.), cert, denied, 534 U.S. 891 (2001). Once litigation is reasonably anticipated, a party must suspend routine document retention/destruction policies and put into place a "litigation hold" to ensure the preservation of relevant ESI. Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212,218 (S.D.N.Y. 2003) (ZubulakelV). Alitigantmay put an opponent on notice of threatened litigation before it is filed...