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In re 1991

filed: May 16, 1996.

IN RE THE MATTER OF FIRESTORM 1991


Appeal from Superior Court, Spokane (94-2-05256-4) County; Honorable Kathleen O'Connor, Judge. Judgment Date: 10-29-94.

Johnson, J., Durham, C.j., Dolliver, Smith, J.j., Pekelis, J.p.t. (result only), Talmadge, J. (concurring by separate opinion), Madsen, J. (concurring by separate opinion), Alexander, J., concurring. Sanders, J. (did not participate).

Author: Johnson

En Banc

JOHNSON, J. -- This case involves the review of a trial court decision disqualifying Plaintiffs' counsel for conducting an ex parte interview with an expert hired by counsel for the Defendants. The trial court concluded this ex parte interview violated CR 26 and disqualification was the appropriate sanction. Based on the facts of this case and the discussion herein, we reverse the order of disqualification, order reinstatement of counsel, and remand for further proceedings.

FACTS

Shortly after filing suit in this case and after requesting, as reported in the media, for anyone with relevant information as to the cause of the fires to contact their office, Plaintiffs' counsel, Richard Eymann and Steve Jones, were contacted by Norman Buske. Buske told Jones that he had been hired by Paine, Hamblen, Coffin, Brooke & Miller (Paine Hamblen), counsel for several area utility companies,*fn1 in investigating the 1991 firestorm, which consisted of over 90 wildfires. He told them he had important information on one of the fires, the Chattaroy fire, which was the fire relevant to this lawsuit. Buske told Jones he had extreme concern that his information would be concealed or hidden by the utility company Defendants and their counsel.

At Buske's request, Jones met with Buske at Buske's home on Saturday, October 16, 1993. Buske identified himself as a consulting scientist employed by Paine Hamblen and Inland Power to investigate Inland Power's involvement in the firestorm fires. At the time of this interview, Inland Power was not a party to the Chattaroy fire lawsuit. Buske stated he had spoken with David Kulisch (a partner in Randall & Danskin, P.S., and former associate in Paine Hamblen) and Donald Stone (partner in Paine Hamblen), who had both informed him he was a consulting expert whose observations and opinions would be sealed. Buske said he felt he had an ethical and moral duty to make his information available to the Plaintiffs.

Jones told Buske he believed it was legal for Buske to voluntarily disclose relevant factual information. Buske and Jones then went on to set some ground rules for a future statement by Buske about his factual observations. Buske wanted to make his statement as quickly as possible, again expressing fear the information he possessed would be sealed or taken from his control.

The next day, Eymann and Jones interviewed Buske at their law office. In addition to the statements he made, Buske delivered copies of pictures and notes he had taken while investigating the Chattaroy fire and which he still possessed. A transcript of this interview, edited jointly by Eymann and Buske, was delivered to David Kulisch's law office the day following the interview. On October 19, 1993, Kulisch's client, Inland Power, sent a letter to Eymann and Jones objecting to their contact with Buske. The letter asserted Eymann and Jones violated discovery and ethical rules in having had contact with an expert retained by Inland Power.

The next month, Eymann and Jones associated Tim Higgins and M.D. Williams of the firm Winston & Cashatt as counsel in the firestorm cases. After associating as counsel, Higgins sought an independent legal opinion as to whether his firm should review the Buske material. The attorney who reviewed the material opined he believed Eymann

and Jones had not violated any ethical or discovery rules and it would be proper for Higgins' law firm to review the Buske material.

On July 12, 1994, Paine Hamblen filed a motion to disqualify counsel, seeking to disqualify both the Eymann law firm and Winston & Cashatt, and also for return of privileged information and materials. This motion was filed approximately nine months after the ex parte interview. The motion was argued on August 19, 1994 in the Superior Court for Spokane County. Inland Power joined Washington Water Power in this motion on the day the motion was argued. The only evidence considered by the court was in the form of affidavits; no testimony was heard by the court.

After hearing argument, the trial court issued an oral decision disqualifying Eymann, Jones, and the Eymann law firm, but not Winston & Cashatt The judge found that Eymann and Jones were on notice as to the unclear status of Buske and had clearly violated CR 26 by conducting the interview. In not disqualifying Winston & Cashatt, the court stated Higgins had behaved appropriately in seeking an independent legal opinion before reviewing the materials, and had not violated the discovery rules. Without finding a violation of the rules, the court stated it would be illogical to disqualify Winston & Cashatt.

The court entered its written order of disqualification on September 29, 1994. The written order contained no findings of fact or conclusions of law. Eymann filed a motion for reconsideration with additional briefs and affidavits from both sides, which was denied. We granted direct review.

ANALYSIS

I

We first must determine the proper standard of review in this case. The trial court found a violation of CR 26 based on the numerous affidavits submitted by the parties

and the oral argument of counsel. No testimony was heard by the trial court. The trial court made no findings of fact and did not indicate which utility employed Buske as an expert. The court based its decision on its belief that Eymann and Jones should have been on notice as to the unclear status of Buske and the potential for the disclosure of privileged information. However, the court did not find any of the information disclosed was privileged.

Since this case involves the application of a court rule to a set of particular facts, this is a question of law, and will be reviewed de novo on appeal. See State v. Tatum, 74 Wash. App. 81, 86, 871 P.2d 1123, review denied, 125 Wash. 2d 1002, 886 P.2d 1134 (1994). When a trial court fails to make any factual findings to support its conclusion, and the only evidence considered consists of written documents, an appellate court may, if necessary, independently review the same evidence and make the required findings. Bryant v. Joseph Tree, Inc., 119 Wash. 2d 210, 222, 829 P.2d 1099 (1992).

II

Our review of this case requires us to determine whether counsel violates CR 26 by conducting an ex parte interview with an expert previously employed by counsel for an opposing party.

The trial court based its disqualification order on its holding that Eymann and Jones clearly violated CR 26, but the court did not indicate which specific provision of CR 26 it felt Eymann and Jones had violated. In makings its ruling, the trial court stressed the fact that under the discovery rules judicial oversight is critical to making proper determinations regarding discovery of experts and whether or not information is privileged. While this is correct, it does not resolve the issue here: we must decide which rule applies, what it requires, and what, if any, sanctions might apply.

CR 26 is the court rule governing discovery practice in all civil matters. In general, the rule allows for discovery

of anything material to the litigation, except for things protected by privilege. CR 26(b)(1). Respondents assert both CR 26(b)(4) and CR 26(b)(5) prohibited Eymann and Jones from contacting Buske ex parte and require their disqualification. CR 26(b)(4) is more commonly known as the work product rule. It provides in relevant part:

Subject to the provisions of subsection (b)(5) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative. . . only upon a showing that the party seeking discovery has substantial need of the materials. . . and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery. . . the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

CR 26(b)(4).

The other rule the Respondents claim was violated is CR 26(b)(5) which governs the discovery of experts.

Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subsection (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. . . . (ii) A party may. . . depose each person whom any other party expects to call as an expert witness at trial.

(B) A party may discover facts known or opinions held by an expert who is not expected to be called as a witness at trial, only as provided in rule 35(b) or upon a showing of

exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

CR 26(b)(5). The initial question we are faced with is whether CR 26(b)(4), CR 26(b)(5), or both, apply.

The key to answering this question is found in the first sentence of CR 26(b)(4): "Subject to the provisions of subsection (b)(5) of this rule. . . ." The very text of the rule tells us that CR 26(b)(4) does not apply to situations falling within CR 26(b)(5). Because neither party disputes the fact Buske was an expert who acquired facts and developed opinions in anticipation of litigation arising out of the 1991 firestorm, CR 26(b)(5) is the specific provision at issue here.

Having determined CR 26(b)(5) is the rule at issue, we must now determine whether ex parte contact with an expert retained by counsel for an opposing party is a violation of CR 26(b)(5). Washington courts have not addressed whether ex parte contact with an opposing party's expert witness is a violation of the discovery or ethical rules.*fn2 The plain language of CR 26(b)(5), however, indicates ex parte contact with the experts of an opposing party is not allowed. The rule states "discovery of facts known and opinions held by experts. . . may be obtained only as follows. . . ." CR 26(b)(5) (emphasis added). The rule does not contemplate discovery of experts outside of its explicit requirements.

Based on the plain language of the rule, we hold as a general principle ex parte contact with an opposing party's expert witness is prohibited by CR 26. See Campbell Indus. v. M/V Gemini, 619 F.2d 24 (9th Cir. 1980) (upholding

district court's sanction for flagrant violation of Fed. R. Civ. P. 26(b)(4)*fn3 when attorney had ex parte contact with opposing party's expert witness). Discovery of expert witnesses retained by a party to the litigation may only be done within the strictures of CR 26.

The Petitioners argue Buske's status is critical in determining whether CR 26 applies to their conduct. Specifically, Petitioners assert if Buske was not employed by Washington Water Power, then he was not retained by a party to the Chattaroy fire litigation and CR 26(b)(5) does not apply. There is authority for the rule that expert witnesses retained by a nonparty are not protected by CR 26(b). See Arkwright Mut. Ins. Co. v. National Union Fire Ins. Co., 148 F.R.D. 552 (S.D. W.Va. 1993) (holding expert hired by company to investigate a fire was not protected by CR 26 in action between insurer and reinsurer); 8 Charles A. Wright et al., Federal Practice ยง 2024, at 354 (2d ed. 1994) (documents prepared by nonparty to present suit are not protected by CR 26(b)); Johnson v. McCay, 77 Wash. App. 603, 893 P.2d 641 (1995) (medical expert hired by insurance company who was not a party to the litigation is not prohibited by CR 26 from testifying for defendant).

At the time of the Buske interview, only Washington Water Power was a party to the Chattaroy fire lawsuit.*fn4 Plaintiffs argue Buske was an expert employed by Inland Power to investigate its potential involvement in the firestorm fires. Portions of Buske's statements support this contention. The trial court, however, made no finding as to Buske's status. Additionally, the mere fact Buske was retained by Paine Hamblen was sufficient to put Eymann and Jones on notice as to the questionable status of Buske. Because we do not decide this case based on Buske's status, we need not resolve this issue, but point out that counsel should not generally make the determination unilaterally.

Because Eymann and Jones were on notice as to Buske's questionable status, and because Buske was employed by Paine Hamblen who, at the time, represented both Washington Water Power and Inland Power, we are satisfied the trial court was correct in finding Eymann and Jones violated CR 26(b)(5). When faced with an expert employed by opposing counsel, who may or may not technically be employed by an opposing party, counsel should always comply with CR 26(b)(5) in proceeding with any discovery or contacting that expert. After the procedures of CR 26(b)(5) have been initiated, the trial court may then fashion the proper form and scope of discovery, as required by the particular circumstances. In this case, the trial court was not initially given this opportunity. By unilaterally determining CR 26(b)(5) did not apply or that these were exceptional circumstances, Eymann and Jones did not conform their conduct (conducting an ex parte interview of Buske) with the requirements of CR 26(b)(5).

III

We are satisfied the trial court was correct in finding Eymann and Jones violated CR 26(b)(5); however, we conclude the trial court erred in imposing the sanction of disqualification. Sanctions for violations of CR 26(b) are not specifically addressed in CR 26(g), CR 37, or CR 11. Nevertheless, the trial court is not powerless to fashion and impose appropriate sanctions under its inherent authority to control litigation. The principles embodied in CR 11, CR 26(g), and CR 37, and discussed by this court in Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash. 2d 299, 336-56, 858 P.2d 1054 (1993), apply with equal force to sanctions decisions for CR 26(b) violations.

Two separate and distinct analyses support our holding reversing the order of disqualification: (1) the information disclosed by Buske was not privileged, and (2) disqualification as a sanction for a discovery rule violation does not adhere to the guidelines set forth in Fisons.

A. Privilege

Disqualification of counsel is a drastic remedy that exacts a harsh penalty from the parties as well as punishing counsel; therefore, it should be imposed only when absolutely necessary. See MMR/Wallace Power & Indus., Inc. v. Thames Assocs., 764 F. Supp. 712, 718 (D. Conn. 1991). One situation requiring the drastic remedy of disqualification arises when counsel has access to privileged information of an opposing party. See Kurbitz v. Kurbitz, 77 Wash. 2d 943, 947, 468 P.2d 673 (1970). The issue of access to privileged information frequently arises in conflict of interest cases. See First Small Business Inv. Co. v. Intercapital Corp., 108 Wash. 2d 324, 337, 738 P.2d 263 (1987); Teja v. Saran, 68 Wash. App. 793, 798-99, 846 P.2d 1375, review denied, 122 Wash. 2d 1008, 859 P.2d 604 (1993). Requiring disqualification after counsel has had access to privileged information preserves the public's confidence in the legal profession. Intercapital Corp. v. Intercapital Corp., 41 Wash. App. 9, 16, 700 P.2d 1213, review denied, 104 Wash. 2d 1015 (1985).

Despite the limited applicability of this sanction, Respondents assert disqualification is the sole adequate remedy for ex parte contact with an opposing party's expert witness, relying on numerous cases from foreign jurisdictions for authority. See Br. of Resp't (Washington Water Power) at 37-40. In all of those cases, however, the person with whom counsel communicated ex parte was either a former integral employee of the opposing party or had access to litigation strategy; i.e., all involved counsel having access to privileged information via a former integral employee. E.g., County of Los Angeles v. Superior Court, 222 Cal. App. 3d 647, 271 Cal. Rptr. 698 (1990) (counsel disqualified after initiating contact with opposing expert physician and assuring expert he was at liberty to talk with opposing counsel), review denied, Oct. 11, 1990; American Protection Ins. Co. v. MGM Grand Hotel--Las Vegas, Inc., 1986 WL 57464 (D. Nev.) (lawyer disqualified when ex-vice president for construction of opposing party

initiates negotiations to serve as expert in construction fraud case); MMR/Wallace Power & Indus., Inc., 764 F. Supp. 712 (firm disqualified after hiring former employee of plaintiff corporation, who served as litigation liaison with plaintiff's counsel while employed as consulting expert in same litigation). Neither of those factors are present here to support a finding that Buske had access to privileged information. Buske was not an integral employee of Washington Water Power or Inland Power, nor was he privy to litigation strategy because no litigation was pending at the time of his association with Paine Hamblen. Additionally, in none of the above cited cases did the trial court rely on a violation of CR 26(b)(5) (or its equivalent) in ordering disqualification of counsel.

Furthermore, the record in this case supports our conclusion that the information disclosed by Buske was not privileged. Buske disclosed facts and opinions as to the cause of the Chattaroy fire, facts about the structure and conduct of Paine Hamblen's investigation, and his opinion about that investigation. The trial court was primarily concerned with the disclosures relating to Paine Hamblen's investigation strategies. These strategies are neither work product nor subject to the attorney/client privilege. "Facts, as such, remain discoverable, even though they may be embodied in a protected document" or conversation. 4 Lewis H. Orland & Karl B. Tegland, Wash. Prac., Rules Practice, at 34 (4th ed. 1992). Accordingly, the following facts (disclosed by Buske during his interview) are subject to discovery and are not protected by any privilege or work product doctrine: (1) an investigation was performed; (2) the personnel who participated in the investigation; (3) the observations made by those participants; and (4) Buske's investigation of the origin of the Chattaroy fire was terminated as soon as he found evidence implicating Washington Water Power. The only things which would be protected from disclosure are the "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." CR 26(b)(4). Buske disclosed

only one mental impression or conclusion of defense counsel--its opinion that his information constituted privileged work product. This conclusion is hardly confidential, considering Respondents have repeatedly asserted this in court.

The trial court's action regarding the firm of Winston & Cashatt lends additional support to the conclusion that Buske did not disclose privileged information. The disqualification of Eymann, Jones, and their law firm is inconsistent with the trial court's failure to disqualify their associated firm, Winston & Cashatt. Winston & Cashatt had reviewed the same information as Eymann and Jones. Thus, if the content of the Buske statement was what required disqualification then Winston & Cashatt should also have been disqualified. Alternatively, if the sanction was to punish Eymann and Jones (which is what the trial court stated) then the discussion of Fisons, infra, explains why disqualification was inappropriate.

B. Fisons

In this case, disqualification as a sanction for violating CR 26(b)(5) is not in line with the guidelines set forth in Fisons. The Fisons decision clearly sets forth the principles trial courts are to follow in fashioning appropriate sanctions.

First, the least severe sanction that will be adequate to serve the purpose of the particular sanction should be imposed. The sanction must not be so minimal, however, that it undermines the purpose of discovery. The sanction should insure that the wrongdoer does not profit from the wrong. The wrongdoer's lack of intent to violate the rules and the other party's failure to mitigate may be considered by the trial court in fashioning sanctions.

The purposes of sanctions orders are to deter, to punish, to compensate and to educate.

Fisons, 122 Wash. 2d at 355-56 (citations omitted). The goal

of these guidelines, and discovery sanctions in general, is to prevent attorney misconduct. To the extent possible, individual parties should not be penalized for their attorneys' misconduct in the discovery process. In light of these purposes and guidelines, the trial court erred in disqualifying Eymann and Jones.

In ordering disqualification, the trial court failed to follow the guidelines set forth by this court in Fisons. The record does not reveal whether the trial judge considered any other sanction before ordering Eymann, Jones, and their law firm disqualified; in fact, the trial court made no findings on this or any other issue. After considering the purpose of sanctions in light of the facts of this case, Eymann and Jones' intent and Paine Hamblen's conduct, we find disqualification was not the least severe sanction adequate to serve the purpose of sanctions in this case.

We begin by examining the facts of this case. While the particular facts of this case do not excuse counsel from following the strict requirements of the rule, several things are important in determining what, if anything, is the appropriate sanction. First, and most importantly, Buske represented himself as an expert for a nonparty and initially contacted Eymann and Jones. Buske felt compelled to act, in what he knew were difficult conditions, because of a perceived ethical and moral duty owed to the Plaintiffs.*fn5 This is not a case of plaintiff or defense counsel trolling for experts or seeking to take advantage of opposing counsel by hiring their discarded or unused experts. Counsel who seek to hire or consult former experts of opponents or former integral employees of opponents can violate CR 26 as well as create possible grounds for

disciplinary action by the Bar. See, e.g., American Protection Ins. Co., 1986 WL 57464 (D. Nev.). In this case, the record does not indicate Eymann and Jones ever engaged in a search for former experts of Paine Hamblen; rather, Buske simply presented himself Finally, the record does not indicate that either Eymann and Jones or Buske ever discussed or brought up the possibility of compensating Buske for his information.

Next, Buske told Eymann and Jones that this information would not have been made available absent his coming forward. The record shows Buske said counsel for Inland Power and Washington Water Power told him in 1993, immediately prior to his contact with Eymann and Jones, that his information would be suppressed or sealed, and this concerned him. Buske still had possession of the original notes and pictures as, evidently, these had not been requested of him. The structure and conduct of Paine Hamblen's investigation into the fires created in Buske an ethical dilemma and the reasonable belief that material information would be suppressed.

In addition to these facts, consideration of Eymann and Jones' intent in interviewing Buske negates the imposition of disqualification. Eymann and Jones' motive in taking with Buske was not to create delay or confusion. They were presented with a unique situation and attempted to determine the proper course of action. Faced with the allegation of discovery abuses by the Defendants and the possible loss of relevant factual information, Eymann and Jones owed a duty to their clients to act quickly and preserve Buske's information; Eymann and Jones disclosed the existence and substance of the interview to defense counsel the day after the interview.

On the other side, Paine Hamblen may have failed to mitigate the effects of this ex parte contact. Instead of immediately going to a judge, they waited nine months to bring this motion. The record reflects the delay in filing the motion to disqualify resulted in the Plaintiffs expending over 640 hours and incurring corresponding expenses

during the period of the delay. Delay in filing the motion to disqualify is suggestive of its use for purely tactical purposes and could be the sole grounds for denying a motion to disqualify. First Small Business Inv. Co. 108 Wash. 2d at 337. While the record does not indicate why Paine Hamblen waited so long in bringing the motion to disqualify, the delay is evidence of Paine Hamblen's failure to mitigate in a timely manner.

Considering all the above mentioned factors, disqualification was not the least severe sanction adequate to serve the purpose of sanctions in this case. Disqualification is a severe sanction, often resulting in a penalty to the parties that is disproportionate to the rule violation. In cases not involving conflicts of interest or breaches of privilege, disqualification should be imposed sparingly. Under the facts of this case as applied to the ...


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