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Estate of Dempsey v. Spokane Washington Hospital Company LLC

Court of Appeals of Washington, Division 3

December 14, 2017

ESTATE OF MICHAEL DEMPSEY by and through its Personal Representative, ELLEN SMITH, and ELLEN SMITH, Petitioners,
Spokane Washington Hospital Company LLC d/b/a DEACONESS MEDICAL CENTER, ROCKWOOD CLINIC and Michael Wukelic, M.D., Respondents, APOGEE PHYSICIANS a.k.a. Apogee Medical Group, Washington, P.C., Defendant.

          Lawrence-Berrey, J.

         Two issues are before us. The first issue is whether an attorney may assert attorney work product protections over documents the attorney prepared and sent to a testifying expert. We answer that the attorney may, but that attorney work product protections are waived to the extent the attorney provided facts to the testifying expert to serve as the bases for that expert's opinions. The second issue concerns whether a testifying expert's draft opinions are discoverable or whether they are protected by expert witness work product protections. We answer that draft opinions are subject to testifying expert work product protections and are not discoverable.

         We reverse the trial court's order and remand to the special discovery master for an in camera review consistent with this opinion.


         In 2014, Ellen Smith, both personally and as personal representative for the Estate of Michael Dempsey, filed suit alleging medical negligence against Deaconess, Rockwood Clinic, and Dr. Michael Wukelic. In late 2015, the trial court appointed a special discovery master to hear and rule on discovery disputes.

         The plaintiffs retained medical expert Dr. Steven Simons to testify on their behalf at trial. Counsel for Dr. Wukelic issued a subpoena duces tecum to Dr. Simons. The subpoena duces tecum requested Dr. Simons to produce for his deposition "[a] 11 letters or correspondence, either written or electronic, whether received or sent by you, concerning Michael Dempsey which are not otherwise part of the record and chart." Clerk's Papers (CP) at 78. The request specifically included production of any and all records received from any source, "including plaintiffs' counsel." Id. The subpoena duces tecum further demanded "[a]ny and all notes, memos, either written or electronic, which you have made while performing work on this case. This is meant to include handwritten notes concerning conversations with . . . plaintiffs' counsel. ..." Id.

         Plaintiffs objected to the subpoena on multiple grounds, including work product. In turn, Dr. Wukelic filed a motion to compel production and to overrule the plaintiffs' objections. The plaintiffs responded with a countermotion, requesting the special discovery master to quash the subpoena as prohibitively broad. Prior to filing their motions, the parties did not engage in a CR 26(i) conference.

         The special discovery master issued an order requiring plaintiffs to provide him all documents sought by Dr. Wukelic that were not previously disclosed so he could review the documents in camera. In addition, the special discovery master ordered plaintiffs to submit to him a privilege log describing those documents they contend are privileged together with a description of the privilege asserted. Although the order appeared to protect privileged documents from disclosure, the order itself stated that no privileges were available to plaintiffs. In the order, the special discovery master found:

[T]here is no attorney-client privilege between plaintiffs' counsel and Dr. Simons that would protect from disclosure documents . . . exchanged between plaintiffs' counsel and Dr. Simons, and that plaintiffs' claim of a "work product" privilege protecting communications between plaintiffs' counsel and Dr. Simons is inapplicable in that Dr. Simons is a testifying expert.

CP at 189.

         Plaintiffs sought review by the trial court of the special discovery master's order. The trial court affirmed the special discovery master's order. Plaintiffs then requested discretionary review, and a panel of this court granted their request.


         This court reviews a trial court's ruling on a discovery motion for an abuse of discretion. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 339-40, 858 P.2d 1054 (1993). "A trial court abuses its discretion when its order is manifestly unreasonable or based on untenable grounds." Id. at 339. "A trial court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law." Id.

         A. Federal interpretations of work product protections do not guide our Decision

         Both parties urge us to be guided by federal interpretations of work product protections under Fed.R.Civ.P. 26(b)(4). Fed.R.Civ.P. 26(b)(4)(B)[1] explicitly protects draft reports of testifying expert witnesses from disclosure. Fed.R.Civ.P. 26(b)(4)(C)[2] explicitly protects some disclosures of attorney work product sent to a testifying expert witness. We reject the parties' requests to be guided by federal interpretations.

         Where a state rule parallels a federal rule, analysis of the federal rule may be looked to for guidance in interpreting the state rule. Beal v. City of Seattle, 134 Wn.2d 769, 777, 954 P.2d 237 (1998). But "[a]ny party asking us to adopt the federal interpretation of a rule bears the burden of overcoming our reluctance to reform rules practice through judicial interpretation rather than rule making." Washburn v. City of Federal Way, 178 Wn.2d 732, 750, 310 P.3d 1275 (2013).

         Nothing in CR 26(b) is similar to the explicit work product protections found in the federal rules. For us to adopt federal interpretations of the federal civil rules, we would be reforming our rule practice through judicial interpretation rather than rule making. We refuse to do this.[3]


         We first review the mechanism by which the civil rules permit one party to request documents from another party's expert witness and the mechanism by which an objection may be lodged. CR 26(b) provides:

(5) Trial Preparation: 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, and to state such other information about the expert as may be discoverable under these rules, (ii) A party may, subject to the provisions of this rule and of rules 30 and 31, depose each person whom any other party expects to call as an expert witness at trial.

         CR 30 governs depositions on oral examination, and CR 31 governs depositions on written questions. Nothing in those rules discuss the scope of a subpoena duces tecum issued to a testifying expert. We, therefore, look to other rules.

         Under CR 45, an attorney of record may subpoena a nonparty to a deposition and require such person to produce documents. CR 45(a)(3)-(4). Any party opposing a subpoena may bring a motion to quash or modify the subpoena for various reasons, including if the subpoena "requires disclosure of privileged or other protected matter and no exception or waiver applies." CR 45(c)(3)(A)(iii). Here, plaintiffs contend that the subpoena requires disclosure of both attorney and expert witness work product.

         We next briefly review how attorney work product protections arose and how those protections have been preserved in our state civil rules:

The attorney work product doctrine first appears in Hickman v. Taylor[, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947)]. It is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries. The Hickman doctrine is now codified in [our] civil rules at... CR 26(b)(4).

Soter v. Cowles Publ'g Co., 131 Wn.App. 882, 893, 130 P.3d 840 (2006) (footnote omitted) (internal quotation marks and citations omitted), aff'd, 162 Wn.2d 716, 174 P.3d 60 (2007).

         CR 26(b)(4) provides in relevant part:

Trial Preparation: Materials. 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 ... for trial by or for another party or by or for that other party's representative (including a party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of such party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, 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.

         We note that CR 26(b)(5), not CR 26(b)(4), controls the scope of protections for an expert witness's work product. In re Firestorm 1991, 129 Wn.2d 130, 137, 916 P.2d 411 (1996). But to the extent an attorney seeks protection for his or her own work product, CR 26(b)(4) controls. In re Det. of West, 171 Wn.2d 383, 407, 256 P.3d 302 (2011).[4]

         Dr. Wukelic is seeking documents that plaintiffs' counsel contends he prepared under CR 26(b)(4). However, Dr. Wukelic does not attempt to obtain disclosure of plaintiffs' work product under the stringent standards of CR 26(b)(4). Thus, Dr. Wukelic can only show entitlement to the materials under a theory of waiver.

         C. Plaintiffs partially waived attorney work product protections

"The doctrine of waiver ordinarily applies to all rights or privileges to which a person is legally entitled. A waiver is the intentional and voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right."

Schroeder v. Excelsior Mgmt. Grp. LLC, 177 Wn.2d 94, 106, 297 P.3d 677 (2013) (quoting Bowman v. Webster, 44 Wn.2d 667, 669, 269 P.2d 960 (1954)). We, therefore, inquire under what circumstances we may infer that an attorney who forwards work product documents to a testifying expert witness has relinquished work product protection.[5]

         It is common for an attorney to provide a testifying expert a written factual summary and supporting materials that serve as a foundation for the expert's trial testimony. The attorney anticipates that the expert witness will rely on these facts and to also testify that these facts are the bases of his or her opinions. Proper examination of the expert witness requires an opposing attorney to know the facts relied on by the expert witness. CR 26(b)(5)(A)(i) requires disclosure of these facts. But the disclosure by interrogatory answers often lacks factual detail. Because disclosure of such facts is required, it is consistent with our civil rules that the opposing attorney have a mechanism by which the factual details can be discovered. But more germane to the issue of waiver, because an attorney knows that disclosure of such facts to the opposing party is required by CR(b)(5)(A)(i), we may infer that the attorney relinquished attorney work product protections by intentionally submitting factual materials to a testifying expert.

         The dissent asserts that the prevailing view under federal law, until the 2010 amendments to Fed.R.Civ.P. 26, was that disclosure of attorney work product to a party's testifying expert worked a broader waiver than the rule we adopt here. We find this unremarkable, given that former Fed.R.Civ.P. 26(a)(2)(B) (2007) explicitly required a party to disclose to an adverse party all "data or other information" considered by an expert. CR 26(b)(5)(A)(i) uses narrower language. It requires a party to disclosure "the substance of the facts and the opinions to which the expert is expected to testify." The dissent explicitly chooses to ignore this difference and, by doing so, would achieve through judicial rule making what is not achievable through the rules themselves.

         The dissent also submits a hypothetical letter from an attorney to a testifying expert. In that letter the attorney expresses his mental impressions, opinions, and legal theories, and then suggests what opinions the testifying expert should express. We agree with the dissent that the hypothetical letter should be disclosed, but we disagree on the legal basis for this result.

Because [a] privilege sometimes results in the exclusion of evidence otherwise relevant and material, and may thus be contrary to the philosophy that justice can be achieved only with the fullest disclosure of the facts, [a] privilege is not absolute; rather, it is limited to the purpose for which it exists.

Dietz v. Doe, 131 Wn.2d 835, 843, 935 P.2d 611 (1997) (discussing the scope of the attorney-client privilege). An attorney's use of attorney work product terms and catchphrases in a letter to a testifying expert does not shield the letter from disclosure. In the case of the hypothetical letter, to the extent the letter seeks to improperly direct the expert's opinions, no purpose justifies extending work product protections to it.

         We have not been provided the documents for which plaintiffs seek work product protection. We, therefore, are unable to definitively make a ruling. That ruling must be made in the first instance by the special discovery master.

         In making its ruling, the special discovery master must determine which documents or portions thereof contain factual information for Dr. Simons to rely on in his testimony and which documents or portions thereof contain plaintiffs' counsel's mental impressions, conclusions, opinions, or legal theories. The latter type of disclosures are subject to heightened protection under CR 26(b)(4). See Soter, 131 Wn.App. at 893-94; see also Christa L. Klopfenstein, Discoverability of Opinion Work Product Materials Provided to Testifying Experts, 32 IND. L. REV. 481, 506-07 (1999) (endorsing a "protection-oriented approach" that would "allow the attorney and the expert to engage in free, creative discussions without requiring that they then turn over the fruits of those discussions to the opposing party").[6]

         D. Waiver of a testifying expert witness's work product protections

         As mentioned previously, CR 26(b)(5)(A) defines the scope of discovery and work product protections for a testifying expert witness. That rule expressly limits written discovery to (1) the identity of the testifying expert, (2) the subject matter on which the expert is expected to testify, (3) the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and (4) any other information about the expert as may be discoverable under these rules. See West, 171 Wn.2d at 404 (contrasting the broader scope of ...

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