KITTITAS COUNTY, a municipal corporation and political subdivision of the State of Washington, Respondent, SKY ALLPHIN, ABC HOLDINGS, INC., CHEM-SAFE ENVIRONMENTAL, INC., Petitioners, WASHINGTON STATE DEPARTMENT OF ECOLOGY, Defendant.
decide here two important aspects of the work product
doctrine. First, were the e-mails exchanged between the
Kittitas County and the Department of Ecology work product?
Second, if the e-mails are work product, are they
discoverable under the Public Records Act (PRA), chapter
42.56 RCW? We hold that the e-mails are work product because
they were prepared by or for Kittitas County in anticipation
of litigation. Second, we hold that Kittitas County did not
waive its work product protection because disclosure of the
e-mails to Ecology never created a significant likelihood
that an adversary would also obtain the information. As a
result, we affirm the Court of Appeals.
AND PROCEDURAL HISTORY
I. Enforcement Action
Environmental is a hazardous waste facility located in
Kittitas County. Clerk's Papers (CP) at 2002. While
inspecting a neighboring facility, James Rivard, the Kittitas
County environmental supervisor, and Gary Bleeker, an Ecology
employee, saw drums labeled as hazardous waste on property
belonging to Chem-Safe and ABC Holdings. Id. 2000,
2002. Upon investigation, Rivard learned that Chem-Safe did
not hold a permit to handle or store moderate risk waste.
Id. at 2002.
the next two years, both Kittitas County and Ecology
employees visited the Chem-Safe facility together, e-mailed
one another about the matter, and met to discuss the progress
in bringing Chem-Safe into compliance with state and local
regulations. Id. at 2002-08. Chem-Safe never
satisfied Kittitas County's or Ecology's requirements
regarding operation of its facility. Id. at 2008.
Kittitas County issued a "Notice of Violation and
Abatement" (NOVA) requiring Chem-Safe to halt operations
until it obtained the necessary permits and equipment and
conducted contamination testing. Id. at 2009,
1265-68. The NOVA cover letter discussed the work of both
Kittitas County and Ecology on the case and listed both as
resources from which Chem-Safe could receive technical
assistance to meet the NOVA's requirements. Id.
appealed the NOVA, which was affirmed by a hearing officer.
Id. at 1273-79. Chem-Safe then appealed the hearing
officer's ruling, which was subsequently affirmed by the
superior court and the Court of Appeals. Id. at
1281-88; ABC Holdings, Inc. v. Kittitas County, 187
Wn.App. 275, 348 P.3d 1222 (2015). We denied review of the
appellate court decision. ABC Holdings, Inc. v. Kittitas
County, 184 Wn.2d 1014, 360 P.3d 817 (2015).
the course of the litigation, Kittitas County deputy
prosecutors sent several e-mails back and forth to Ecology
employees. In one of those e-mails, an Ecology employee
e-mailed a county deputy prosecutor, asking, "Should
these emails be considered attorney-client
privileged?" CP at 1501 (emphasis added). The
Kittitas County deputy prosecutor responded, "[Ecology]
is not my client (Kittitas County is), therefore, these
e-mails are not attorney-client privileged."
Id. at 1500 (emphasis added). The Kittitas County deputy
prosecutor copied her response to an assistant attorney
general. Id. The assistant attorney general also
responded, stating that the e-mails were not attorney-client
privileged without a joint-prosecution agreement.
Id. at 1499. The assistant attorney general also
stated that there might be other privileges that applied to
the e-mails but that she lacked enough information to know
the specific options for keeping the e-mails privileged.
Id. at 775. Thus, the record reflects only the
parties' understanding of whether Kittitas County and
Ecology's communications with one another were
Public Records Action
this backdrop, and while the Court of Appeals reviewed the
NOVA, Sky Allphin, president of Chem-Safe, filed a PRA
request with Kittitas County. Id. at 2001, 70.
Allphin requested all records from January 1, 2010, forward
relating to the inspection of Chem-Safe's facility and
specifically requested correspondence from Kittitas County,
Ecology, and other agencies. Id. at 70. Ultimately,
Kittitas County produced more than 20, 000 pages of records
in monthly increments. Id. at 1108-14.
also filed a similar PRA request with Ecology. Id.
at 71. Five days later, in response to a request from
Kittitas County, Ecology "promised to withhold the
records" while Kittitas County sought an
injunction. Id. at 2695-96, 2718 ("The
Ecology public records officer promised that such records
would not be released until [Kittitas] County had an
opportunity to seek court protection as allowed by RCW
42.56.540 and 42.56.550."). Kittitas County sought, and
the superior court granted, a temporary restraining order to
prevent the release of several e-mails that Kittitas County
claimed to be exempt from production as work product under
the PRA. CP at 92-96, 661-67. Allphin disputed whether these
e-mails were work product and, if so, whether Kittitas County
had waived any accompanying privilege. As a result, Allphin
filed this PRA lawsuit against Kittitas County. Eventually,
the parties narrowed down the list of disputed records to 32
e-mail chains. Id. at 781, 2722-24.
superior court held an in camera review of the e-mail chains
claimed exempt by Kittitas County. Id. at 781. After
its review, the court determined the e-mails were exempt from
production under the PRA as work product, enjoined Ecology
from releasing the e-mails, and sealed them. Id. at
789. The court then granted summary judgment in favor of
Kittitas County, holding that Kittitas County did not violate
the PRA. Id. at 2978-83.
Chem-Safe, and ABC Holdings (collectively Chem-Safe) appealed
the superior court's grant of summary judgment and
sealing of the e-mails. The Court of Appeals affirmed the
superior court in a partially published opinion. See
Kittitas County v. Allphin, 195 Wn.App. 355, 381 P.3d
Court of Appeals concluded that the e-mails exchanged between
Kittitas County and Ecology were work product because they
"contain statements of fact and legal strategies
prepared by and for the various employees of [Kittitas]
County and Ecology in response to the Chem-Safe
litigation." Id. at 366-67. It further
concluded that "the two agencies agreed to undertake a
joint/common cause in the regulatory enforcement litigation
against Chem-Safe" and, thus, the work product
protection in the e-mails was not waived by disclosure to
Ecology because of the common interest doctrine. Id.
filed a petition for review of the Court of Appeals decision
with this court. We partially granted the petition on the
issue of whether the common interest doctrine applied to the
e-mails exchanged between Kittitas County and Ecology,
exempting the documents from production under the PRA as work
review challenges under the PRA de novo. RCW 42.56.550(3).
Our review of summary judgment motions is also de novo.
Scrivener v. Clark Coll., 181 Wn.2d 439, 444_ 334
p.3d 541 (2014). "Summary judgment is appropriate only
when there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of
law." Id.; see also CR 56(c).
first conclude that the e-mails exchanged between Kittitas
County and Ecology are work product. Next, we adopt the rule,
used by both federal and state courts, that a party waives
its work product protection when it discloses work product
documents to a third party in a manner creating a significant
likelihood that an adversary will obtain the information.
See 8 Charles Alan Wright et al, Federal Practice
and Procedure: Civil § 2024 (3d ed. 2010). Using this
rule, we conclude that Kittitas County did not waive its work
product protection by exchanging e-mails with Ecology
employees. As a result, the e-mails are not subject to
disclosure under the PRA.
The E-mails Are Work Product
that the e-mails exchanged between Kittitas County and
Ecology constitute work product. The e-mails were prepared by
or for Kittitas County in anticipation of litigation over the
NOVA. As a result, they qualify as work product under Civil
Rule (CR) 26(b)(4).
The PRA and the Controversy Exception
primary purpose of the PRA is to provide broad access to
public records to ensure government accountability."
City of Lakewood v. Koenig, 182 Wn.2d 87, 93, 343
P.3d 335 (2014). An agency must disclose responsive public
records "unless the record falls within the specific
exemptions of [the PRA] ... or other statute." RCW
42.56.070(1). "Consistent with its purpose of
disclosure, the PRA directs that its exemptions must be
narrowly construed." Koenig, 182 Wn.2d at 94;
see also RCW 42.56.030.
Kittitas County claimed an exception from PRA disclosure
under RCW 42.56.290, commonly referred to as the
"controversy exception." See Soter v.
Cowles Publ'g Co., 162 Wn.2d 716, 732, 174
P.3d 60 (2007) (plurality opinion). That exception states,
Records that are relevant to a controversy to which an agency
is a party but which records would not be available to
another party under the rules of pretrial discovery for
causes pending in the superior courts are exempt from
disclosure under [the PRA].
RCW 42.56.290. The standard for determining whether records
would be discoverable in superior court is CR 26.
Limstrom v. Ladenburg, 136 Wn.2d 595, 600-01, 963
P.2d 869 (1998) (holding that "a citizen has the right
to inspect documents . . . unless the documents requested
would not be available to a party under the discovery rules
set forth in the civil rules for superior court"). Here,
Kittitas County claims that under CR 26(b)(4), the e-mails
qualify as work product and thus are exempt from disclosure
under the controversy exception.
work product doctrine originates from the United States
Supreme Court case Hickman v. Taylor, 329 U.S. 495,
67 S.Ct. 385, 91 L.Ed. 451 (1947). In Hickman, most
of the crew of a tugboat died when it sank. Id. at
498. The representative of one of the deceased sued the
owners of the tugboat. Id. Prior to the lawsuit, the
owners' attorney made notes of interviews with the
surviving crew and others with relevant knowledge about the
accident. Id. During discovery, the plaintiff sent
the defendants interrogatories asking them to produce all the
statements that they had taken about the event. Id.
at 498-99. The defendants refused to produce the notes and
interviews taken by their attorney and were held in contempt.
Id. at 499- 500. They appealed, and the Court of
Appeals reversed. Id. at 500. The Supreme Court
granted certiorari and affirmed the Court of Appeals, holding
that the work product of attorneys was protected from
discovery by an adversary. Id. at 509-10.
the Supreme Court distinguished between attorney work product
and materials that are privileged under the attorney-client
privilege. Id. at 508. It noted that the scope of
the attorney-client privilege did not protect information
collected from a witness by an attorney acting on behalf of
his or her client. Id. The Court also stated that
the attorney-client privilege did not extend to materials
prepared by an attorney for his or her use in prosecuting a
case or to materials that "reflected] an attorney's
mental impressions, conclusions, opinions or legal
drawing this distinction, the Supreme Court went on to
establish the importance of protecting an attorney's
files and mental impressions. Id. at 510. The Court
reasoned that more harm than good would result from allowing
Were such materials open to opposing counsel on mere demand,
much of what is now put down in writing would remain
unwritten. . . . Inefficiency, unfairness and sharp practices
would inevitably develop in the giving of legal advice and in
the preparation of cases for trial. The effect on the legal
profession would be demoralizing. And the interests of the
clients and the cause of justice would be poorly served.
Id. at 511.
protection of an attorney's work product is not without
limitation. The Supreme Court noted that attorney documents
containing relevant, nonprivileged facts were discoverable
under certain circumstances, such as when witnesses are no
longer available. Id. The Court was careful to note
that even in these circumstances, the burden rests on the
party seeking production to "establish adequate reasons
to justify production through a subpoena or court
order." Id. at 512.
has a similar work product protection rule, which is codified
in CR 26(b)(4):
[A] party may obtain discovery of documents and tangible
things . . . prepared in anticipation of litigation . . .
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 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.
See also Heidebrink v. Moriwaki, 104 Wn.2d 392, 396,
706 P.2d 212 (1985). As a result, "[t]he work product
doctrine does not shield records created during the ordinary
course of business, " but applies only to those
materials prepared in "anticipation of litigation."
Morgan v. City of Federal Way, 166 Wn.2d 747, 754,
213 P.3d 596 (2009). The "determination of whether
material was prepared in the anticipation of litigation in a
particular case, and thus qualifies as work product, requires
examination of the specific parties and their
expectations." Harris v. Drake, 152 Wn.2d 480,
487, 99 P.3d 872 (2004). The litigation may be
"'completed, existing, or reasonably
anticipated.'" Soter, 162 Wn.2d at 732
(quoting Dawson v. Daly, 120 Wn.2d 782, 791, 845
P.2d 995 (1993), overruled on other grounds by
Soter, 162 Wn.2d at 755). When creating work product in
anticipation of litigation, "there is no distinction
between attorney and nonattorney work product."
Heidebrink, 104 Wn.2d at 396.
to this rule, we have established some specific guidelines
regarding when an attorney's work product is
(1) The mental impressions of the attorney and other
representatives of a party are absolutely protected, unless
their mental impressions are directly at issue. Pappas v.
Holloway, 114 Wn.2d 198, 212, 787 P.2d 30 (1990).
(2) The notes or memoranda prepared by the attorney from oral
communications should be absolutely protected, unless the
attorney's mental impressions are directly at issue.
See Pappas, 114 Wn.2d at 212; Dever ...