Chapter §26.7 Significant Authorities

• Jurisdiction: Washington

§26.7 SIGNIFICANT AUTHORITIES

This section marshals important case authority regarding CR 26.

(1) Washington

(a) Scope of discovery in general

The scope of discovery under CR 26 is very broad. The right to discovery is an integral part of the right to access to the courts embedded in the Washington Constitution. Because discovery is, by design, intended to be broad, a party wishing to assert a privilege may not simply keep quiet about information it believes is protected from discovery; it must reveal the information, disclose that it has it, and assert that it is privileged or seek a protective order. Cedell v. Farmers Ins. Co. of Wash., 176 Wn.2d 686, 696, 295 P.3d 239 (2013).

No longer a game of blindman's bluff, modern day pretrial discovery has evolved to assure a more fair, just, and efficient process. Effective pretrial disclosure, so that each side knows what the other side knows, has narrowed and clarified the disputed issues and made early resolution of claims possible. Lowy v. PeaceHealth, 11A Wn.2d 769, 777, 280P.3d1078 (2012).

Washington courts recognize a broad right to discovery, subject to the relatively narrow restrictions of CR 26(c). Flower v. T.R.A. Indus., Inc., 127 Wn.App. 13, 38, 111P.2d1192 (2005), review denied, 156 Wn.2d 1030 (2006).

The trial court has broad discretion under CR 26 to manage the discovery process and can limit the scope of discovery through issuance of protective orders. Nakata v. Blue Bird, Inc., 146 Wn.App. 267, 277, 191P.3d900 (2008), review denied, 165 Wn.2d 1033 (2009).

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).

Information that may be relevant for impeachment purposes is discoverable and within the scope of CR 26(b). Ollie v. Highland Sch. Dist. No. 203, 50 Wn.App. 639, 749 P.2d 757, review denied, 110 Wn.2d 1040 (1988).

(b)Discovery of electronically stored information

Once a public agency is on notice of a public records request under Ch. 42.56 RCW, the agency must suspend any data management policy or procedure that would cause the loss or destruction of data or electronically stored information (ESI) responsive to the request. ESI to be preserved includes metadata, the hidden statistical information about a document generated by a software program. Metadata information includes data describing how, when, and by whom it was collected, created, accessed, or modified. O'Neill v. City of Shoreline, 170 Wn.2d 138, 142, 148-50, 240 P.3d 1149 (2010).

(c)Privilege

Amatter may be nondiscoverable either because it is subject to a privilege or to an immunity from discovery. The distinction between immunity from discovery and privilege is often blurred, but an immunity may make an admissible matter nondiscoverable, while a privileged matter is both nondiscoverable and inadmissible. Coburn v. Seda, 101 Wn.2d 270, 677 P.2d 173 (1984).

When a responding party withholds requested discovery on grounds of privilege, the best practice is for the trial court to require a document (privilege) log providing information identifying each document withheld and describing with specificity the grounds supporting the privilege claim. Cedell, 176 Wn.2d at 695-96.

(d)Objections to discovery—waiver

A responding party must timely object to a discovery request. Failure to object within the 30-day response period under CR 33 and CR 34 may result in waiver of any objections, including privilege. Neighborhood Alliance of Spokane Cnty v. Cnty of Spokane, 172 Wn.2d 702, 718, 261P.3d119 (2011).

A responding party who objects to written discovery has two options: (1) make a timely and appropriate written objection before the response date or (2) file a motion for protective order before the response is due. Cedell, 176 Wn.2d at 695.

(e) Trial preparation materials—work product

The work product rule applies to (1) documents and tangible things that show legal research and opinions, mental impressions, theories, or conclusions of the attorney or of a party's other representatives; (2) an attorney's written notes or memoranda of factual statements or investigation; and (3) formal or written statements of fact, or other tangible facts, gathered by an attorney in preparation for or in anticipation of litigation. Fact work product is to be distinguished from attorney or opinion work product, which are the mental impressions, opinions, theories, or conclusions of counsel for a party. Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998).

Under CR 26(b)(4), the following bright-line rule applies in protecting attorney/opinion work product: (1) the mental impressions of an attorney or a party's other representatives are absolutely protected from disclosure, unless the mental impressions are directly at issue in the case; (2) the notes or memoranda prepared by an attorney from any oral communications are absolutely protected, unless the attorney's mental impressions are directly at issue; and (3) any factual written statements and other tangible items gathered by an attorney or a party's other representatives are subject to disclosure under the work product rule only when there is a showing of substantial need and an inability to obtain the substantial equivalent from another source without undue hardship. If fact work product is subject to discovery, any mental impressions embedded in the factual statements are to be redacted. Soter v. Cowles Publ'g Co., 131 Wn.App. 882, 130 P.2d 840 (2006), aff'd, 162 Wn.2d 716, 740, 74 P.3d 60 (2007); Limstrom, 136 Wn.2d 595.

Work product under CR 26(b)(4) falls in two categories: (1) factual information ("fact work product"); and (2) an attorney's mental impressions, research, legal theories, opinions, and conclusions ("attorney work product"). Soter, 131 Wn.App. at 893.

Attorney work product has nearly absolute immunity from discovery, and a court may order its release in only circumstances in which the attorney work product is itself at issue in the action or when there are issues of attorney crime or fraud. Id.

The work product privilege belongs to both the client and attorney. A client cannot waive the attorney's right to the work product privilege. Id. at 906.

Representatives of a party, in addition to a party's lawyer, can generate materials that qualify as work product. The representatives, however, need to be retained by or intended to work with legal counsel for litigation-related purposes, anticipated or actually existing. Limstrom, 136 Wn.2d 595.

Work product protection attaches to qualified materials that relate to completed (past), current (pending), or reasonably anticipated (future) litigation. Morgan v. City of Federal Way, 166 Wn.2d 747, 754, 213 P.3d 596 (2009).

To justify disclosure of work product, the party seeking discovery must show the importance of the information to the preparation of its case and the difficulty the party will face in obtaining substantially equivalent information from other sources if production is denied. The clearest case for ordering production of work product materials is when crucial information is in the exclusive control of the opposing party. Pappas v. Holloway, 114 Wn.2d 198, 787 P.2d 30 (1990).

As a general rule, the only way a court can accurately determine what materials are exempt from disclosure as work product is by in camera review. Barry v. USAA, 98 Wn.App. 199, 989 P.2d 1172 (1999).

(f) Experts

Work product generated by experts is governed exclusively by CR 26(b)(5). To obtain expert witness work product, a party does not need to meet the substantial need and hardship requirements of CR 26(b)(4). The general right to discovery, permissible methods of discovery, and the scope of discovery directed to an expert is determined by the expert's status: whether the expert will testify at trial, CR 26(b)(5)(A); or is serving exclusively as a consulting expert, CR 26(b)(5)(B). In re Detention of West, 171 Wn.2d 383, 402-03, 256 P.3d 302 (2011).

Trial expert discovery is governed by CR 26(b)(5)(A). This rule provides for liberal discovery of the work product of experts a party expects to call to testify at trial. Because modern litigation often involves intricate issues, the outcome of which often is determined by expert testimony, CR 26(b)(5)(A) is intended to afford full pretrial access to an opponent's expert to prepare for cross examination and rebuttal. Id. at 404.

Because entirely different concerns are presented in the context of nontestifying consulting experts, discovery of facts and opinions is limited under CR 26(b)(5)(B) and requires a showing of exceptional circumstances. Because consulting experts are not intended to testify, the interests in effective cross examination and rebuttal are not implicated. Rather, contrary interests prevail, precluding discovery of consulting experts: (1) encouraging counsel to obtain needed expert advice without fear that the opposing party may obtain that information; (2) preventing unfairness that may result from allowing the opposing party to reap the benefits of another party's efforts and expense; (3) preventing a chilling effect on experts serving as consultants if their testimony could be compelled; and (4) preventing prejudice to the retaining party if the opposing party could call at trial the consulting expert who provided an unfavorable opinion. Id.

Work product protection of experts under CR 26(b)(5) applies through trial and continues after litigation ends. After litigation concludes, whether CR 26(b)(5)(A) (expert work product discoverable) or CR 26(b)(5)(B) (expert work product not discoverable) applies depends upon the status of the expert at the time CR 26(b)(5) protections attach, i.e., whether the expert was designated a trial expert or consulting expert. Id. at...