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Kittitas County v. Allphin

Supreme Court of Washington, En Banc

May 17, 2018

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.

          WIGGINS, J.

         We 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.


I. Enforcement Action

         Chem-Safe 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.

         Throughout 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.

         Eventually, 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. at 1265.

         Chem-Safe 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).

         During 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 attorney-client privileged.[2]

         II. Public Records Action

         Against 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.

         Allphin 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.[3] 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.

         The 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.

         Allphin, 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 1202 (2016).

         The 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. at 369-70.

         Chem-Safe 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 product.


         We 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).


         We 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.[4]

         I. The E-mails Are Work Product

         We hold 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).

         A. The PRA and the Controversy Exception

         "The 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.

         Here, 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.[5]

         B. Work Product

         The 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.

         First, 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 theories." Id.

         After 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 such discovery:

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.

         The 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.

         Washington 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.

         Pursuant to this rule, we have established some specific guidelines regarding when an attorney's work product is discoverable:

(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 ...

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