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King County v. The Travelers Indemnity Co.

United States District Court, W.D. Washington

April 27, 2018

KING COUNTY, a Washington municipal corporation, Plaintiff,
v.
THE TRAVELERS INDEMNITY CO., et al., Defendants.

          ORDER DENYING EMPLOYERS INSURANCE OF WAUSAU'S MOTION TO COMPEL KING COUNTY TO PRODUCE CERTAIN DOCUMENTS

          Barbara Jacobs Rothstein, U.S. District Court Judge.

         I. INTRODUCTION

         This matter comes before the Court on the Motion to Compel King County to Produce Certain Documents, Dkt. No. 655, filed by Defendant Employers Insurance of Wausau (“Wausau”). Wausau seeks production of documents created in the course of a related allocation proceeding to which Plaintiff King County is a party. The motion is opposed by King County, which claims the documents are privileged, and by Intervenor City of Seattle, another party to the allocation proceeding, which has intervened in this case for the express purpose of opposing this motion. Having considered the pleadings filed in support of and opposition to this motion, the Court rules as follows.

         II. BACKGROUND

         A. Duwamish Allocation Proceedings

         King County brought this case against multiple insurers, including Defendant Wausau, seeking defense and indemnity for King County's share of the decades-old-and ongoing- cleanup efforts of the Lower Duwamish Waterway Superfund Site in Seattle. As part of those efforts, in 2013, King County, the City of Seattle, and dozens of other potentially responsible parties at the Duwamish site (“PRP”s) initiated a voluntary alternative dispute resolution process known as the Duwamish Allocation. The allocation proceeding, conducted by John Barkett, an Allocator chosen by the parties, was intended to be a process for determining the share of fault and liability for the cleanup among the various participating PRPs. That allocation proceeding is ongoing.

         B. Memorandum of Agreement and Washington Mediation Act

         The Duwamish Allocation Proceeding is governed by rules outlined in a Memorandum of Agreement (“MOA”), which was signed by all participating parties. Relevant to the instant dispute, subsection 5.1.5.4 of the MOA incorporates a Washington statutory privilege, designed to protect documents produced in mediation from discovery, into the allocation proceeding. Specifically, the MOA sets forth the parties' expectations of confidentiality and provides that the allocation proceeding is a mediation for purposes of the Washington Mediation Act privilege:

Communications Are Confidential. The Participating Parties intend that their communications with the Allocator and with one another during the Allocation Process, whether written or oral, be kept confidential among the Participating Parties and the Allocator to the fullest extent allowed by law. The Allocation Process shall be considered a mediation that is covered by . . . RCW 7.07.030 (mediation communications are privileged). Mediation communications as defined in RCW 7.07.010(2), including but not limited to Position Papers, Rebuttals, Replies, Questionnaire responses, and deposition transcripts, shall also be kept confidential to the fullest extent of the law. MOA §5.1.5.4, Ex. 3 to Wishik Decl., Dkt. No. 647, p. 21.

         The statutory reference is to the Washington Mediation Act, which provides, in relevant part, that a “mediation communication is privileged and is not subject to discovery or admissible in evidence.” RCW 7.07.030(1). Wausau does not dispute that the Duwamish Allocation is governed by the Washington Mediation Act as invoked by the MOA.

         C. Motion to Compel Allocation Proceeding Documents

         Wausau has acknowledged its duty to cover King County's “reasonable and necessary” costs in the allocation proceeding, subject to certain coverage defenses. In the context of discovery concerning those defenses, Wausau served on King County requests for production of documents related to the allocation proceeding. In response, King County turned over certain documents that it had produced to other PRPs in the course of the allocation proceedings. However, it has refused to provide, based on privileges outlined in the MOA and the Washington Mediation Act, documents that were produced by, or reflect the work of, other parties in the course of the allocation proceeding. By this motion, Wausau asks the Court for an order compelling production of these documents, including:

1. Any expert reports of any PRP that addresses King County's alleged liability;
2. Any pleadings submitted or rulings issued in the allocation proceeding, and the transcript of a deposition taken in the ...

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