Kittitas County v. Allphin ( 2018 )

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This opinion was filed for record
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GHi&JUSTKe SUSAN L. CARLSON
supreme court clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
KITTITAS COUNTY, a municipal No. 93562-9
corporation and poiitical subdivision of the
State of Washington, En Banc
Respondent,
V, Filed 1 7 2018
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.
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FACTS AND PROCEDURAL HISTORY^
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.
^ Since this case is a review of a grant of summary judgment,"we consider all facts and make
all reasonable factual inferences in the light most favorable to the nonmoving party," here,
Chem-Safe. Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014).
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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 Unlike the dissent, we do not believe this exchange leads to a conclusion that Ecology and
Kittitas County made no "further efforts to determine . . . [or] protect confidentiality in this
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II. Public Records Action
Against this backdrop, and while the Court of Appeals reviewed the NOVA, Sky
Allphin, president of Ghem-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.^ 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.
specific case." Dissent at 11. If the work product and attorney-client privilege are to remain
distinct, we cannot rely on the parties' conclusions about the latter to infer their conclusions
about the former. There was a reasonable expectation of confidentiality between the two
agencies because of their common interest. See infra pp. 19-20. The only instance in which
Ecology disclosed any work product was inadvertent. CP at 2695, 2719. As a result, we
believe that there is sufficient evidence in the record to show that the parties did indeed
protect confidentiality in this case.
3 The single instance in which Ecology released a protected record was inadvertent. CP at
2695,2719.
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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.
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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.
STANDARD OF REVIEW
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 OR 56(c).
ANALYSIS
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.^
We decline to adopt a new, bright-line rule for the waiver of work product protection in the
PRA context. We know of no state that has adopted the dissent's bright-line rule. Nor is the
dissent's rule supported by the actual language of the PRA.
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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 Soterv. 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
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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 OR
26(b)(4), the e-mails qualify as work product and thus are exempt from disclosure
under the controversy exception.®
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
5 As we have noted,"The work product exemption was part of the original enactment of the
public disclosure law In 1973. Laws of 1973, ch. 1 (Initiative 276), § 31(1)G)." Limstrom,
136 Wn.2d at608.
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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 "reflect[ed] 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
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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, 114Wn.2d at 212;
Deverv. Fowler, 63 Wn. App. 35, 48, 816 P.2d 1237 (1991).
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(3) The factual written statements and other tangible items
gathered by the attorney and other representatives of a party are subject
to disclosure only upon a showing that the party seeking disclosure of
the documents actually has substantial need of the materials and that
the party is unable, without undue hardship, to obtain the substantial
equivalent of the materials by other rheans. Mental impressions of the
attorney and other representatives embedded in factual statements
should be redacted. Heidebrink, 104 Wn.2d 392.
Limstrom, 136 Wn.2d at 611-12; see also Lewis H. Orland, Observations on the Work
Product Rule, 29 GoNZ. L. Rev. 281 (1994). We have further described the scope of
work product as follows:
The civil work product protection applies to documents and other
tangible things that (1) show legal research and opinions, mental
impressions, theories, or conclusions of the attorney or of other
representatives of a party; (2) are an attorney's written notes or
memoranda of factual statements or investigation; and (3) are formal or
written statements of fact, or other tangible facts, gathered by an attorney
in preparation for or in anticipation of litigation.
Limstrom, 136 Wn.2d at 611.
For example, in Soter, we held that the notes of a school district's attorney and
the notes of an investigator hired by that attorney were work product. 162 Wn.2d at
744. The attorney and investigator took the notes as part of the school district's
investigation into the death of a child on a field trip. Id. at 722. The parents of the child
sued the school district, and a newspaper filed a public records request with the school
district, asking for the notes taken during the investigation. Id. at 723. The school
district resisted production, asserting that the notes were work product and exempt
from disclosure under the PRA controversy exception. Id. When deciding whether the
notes were work product, we looked to the nature of the documents, whether those
documents were prepared in anticipation of litigation, and whether the documents
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revealed "the attorneys' and investigator's thoughts regarding client and witness
interviews." Id. at 743. We concluded that the notes were created in anticipation of
litigation over the child's death and they reflected the attorneys' and investigator's
thoughts about the litigation. Id. at 743, 744 n.13. Consequently, we held that the
notes were work product.
Here, Chem-Safe argues that Soter relied on the fact that the school district
hired the investigator, while here, Kittitas County did not hire Ecology. As a result,
Chem-Safe asserts that the e-mails written by Ecology employees cannot be work
product. However, Chem-Safe's characterization of Soter is incorrect. In Soter, we did
not conclude that the investigator's notes were work product because the investigator
had been hired by the school district. Instead, we focused on whether the notes
"reveal[ed] what information the attorney deemed particularly important and,
conversely, what the attorney did not find important enough to record." Id. at 743-44.
As a result, because the "notes reflect[ed] the attorneys' and investigator's thoughts
regarding client and witness interviews," we concluded that they were work product.
Id. at 743.
Here, as in Soter, all the e-mails were created in anticipation of litigation and
reflect attorney opinions, thoughts, and conclusions about the litigation. Thus, the e-
mails are work product. The e-mail chains all include one or more of the following
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elements:(1) discussion of litigation-related technical, factual, and regulatory issues;®
(2) draft declarations with edits and notes;^ and/or (3) analysis of the risks of different
litigation positions in the Chem-Safe lawsuit.® All of these e-mails were created for
investigative purposes or in pursuit of Kittitas County's litigation strategy surrounding
the NOVA. Consequently, the e-mails contain "legal research and opinions, mental
impressions, theories, or conclusions," as well as "written notes or memoranda of
factual statements or investigation" regarding the NOVA litigation. Limstrom, 136
Wn.2d at 611. The e-mails were prepared directly by Kittitas County's deputy
prosecutors or included material prepared by Ecology representatives at the request
of, and in support of, the deputy prosecutors. See Heidebrink, 104 Wn.2d at 396(concluding "there is no distinction between attorney and nonattorney work product").®
Thus, the e-mails were created "by or for" Kittitas County to use in the Chem-Safe
litigation. See CR 26(b)(4). As a result, they constitute work product under CR 26(b)(4)
® See, e.g., e-mail exchanges over Chem-Safe's status as a "LIST contractor," CP at 3146,
3239 (sealed record), and over soil contamination. Id. at 3266-67.
^ See, e.g., id. at 3289-3305 (e-mail chain with red-line edits and notes on draft declaration
from Ecology employees).
® See, e.g., id. at 3064 (discussion of the fraud/forgery doctrine), 3144 (discussion of litigation
strategy).
9 See a/so Soter, 162 Wn.2d at 739 n.9 ("The United States Supreme Court has
acknowledged that under the nearly identical federal rule, the work product doctrine protects
'material[s] prepared by agents for the attorney as well as those prepared by the attorney
himself." Therefore, we conclude that [the investigator's] handwritten notes should be treated
no differently from the attorneys'." (first alteration in original)(citation omitted)(quoting United
States V. Nobles, 422 U.S. 225, 238-39, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975))).
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and are not discoverable unless the work product protection has been waived by
Kittitas County.
II. Waiver of Work Product Protection
Having concluded that the e-mails are work product, we must now decide
whether Kittitas County waived its work product protection. Washington has yet to
define a clear rule governing waiver of work product protection. See Limstrom v.
Ladenburg, 110 Wn. App. 133, 144, 39 P.3d 351 (2002)("Absent Washington case
law on waiver of work product immunity, we look to other jurisdictions."). We now
Chem-Safe also makes two related arguments for the first time in its answer to the State's
amicus brief. Generaily, the court wili not consider arguments raised for the first time in a
reply brief. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549(1992)(stating that an issue raised and argued for the first time in a reply brief is too late to
warrant consideration). However, we choose to address the arguments, and reject them.
First, Chem-Safe argues that an administrative appeal over a NOVA is not a
"controversy" for purposes of ROW 42.56.290. Pet'r's Answer to Wash. Amicus Br. at 3-6.
As a result, it contends that the e-mails cannot be considered exempt from disciosure under
the PRA's controversy exception.
A controversy is '"completed, existing, or reasonabiy anticipated iitigation.'" Soter, 162
Wn.2d at 732 (quoting Dawson, 120 Wn.2d at 791). Here, Chem-Safe appeaied imposition
of the NOVA to the Kittitas County hearing examiner. CP at 1273-79. After the adverse ruling
from the hearing examiner, Chem-Safe then appealed to the superior court. Id. at 1281-88.
After an adverse ruiing from the superior court, Chem-Safe again appealed, this time to the
Court of Appeals. Id. at 1291-92. Finally, Chem-Safe appealed the adverse Court of Appeals
ruling to this court, which denied review. ABC Holdings, Inc., 187 Wn. App. 292. This process
certainly qualifies as '"compieted, existing, or reasonably anticipated litigation.'" Soter, 162
Wn.2d at 732 (quoting Davi/son, 120 Wn.2d at 791). It would be absurd to characterize it any
other way.
Second, Chem-Safe argues that the correspondence between Kittitas County and
Ecology reiated to the potential "[Model Toxics Controi Act, chs. 70.105D and 82.21 RCW,]
order," not to enforcement of the NOVA; therefore, the e-maiis were not prepared in
anticipation of litigation. Pet'r's Ans. to Wash. Amicus Br. at 6-7. This argument is without
support in the record. The e-mails pertained to the appeais between Kittitas County and
Chem-Safe over the NOVA. There is no evidence in the record that Kittitas County and
Ecoiogy discussed anything other than the NOVA litigation.
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adopt the rule 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. Using this rule, we hold that Kittitas County did
not waive its work product protection.
A. Waiver in the Work Product Protection Context
A party waives its work product protection when "the client, the client's lawyer,
or another authorized agent of the client. . . discloses the material to third persons in
circumstances in which there is a significant likelihood that an adversary or potential
adversary in anticipated litigation will obtain it." Restatement (Third) of the Law
Governing Lawyers § 91(4) (Am. Law Inst. 2000). This is the rule used by both
federal and other state courts. See, e.g., In re Chevron Corp., 633 F.3d 153, 165 (3d
Cir. 2011) ("[l]t is only in cases in which the material is disclosed In a manner
inconsistent with keeping it from an adversary that the work-product doctrine is
waived."): O'Boyle v. Borough of Longport, 218 N.J. 168, 193, 94 A.3d 299 (2014)
("'[l]t is only in cases in which the material is disclosed in a manner inconsistent with
keeping it from an adversary that the work-product doctrine is waived.'"(quoting In re
Chevron Corp, 633 F.3d at 165)); Am. Zurich Ins. Co. v. Thirteenth Judicial Dist. Court,
2012 MT 61, H 26, 364 Mont. 299, 280 P.3d 240("Disclosure only waives work product
protection if it is 'inconsistent with the maintenance of secrecy from the disclosing
party's adversary.'" (quoting United States v. Deloitte LLP, 391 U.S. App. D.C. 318,
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610 F.Sd 129, 140 (2010))).'''' In clarifying a work product waiver rule, federal case law
is persuasive since CR 26(b)(4) is nearly identical to Federal Rule of Civil Procedure
26(b)(3). See Safer, 162 Wn.2d at 739 ("Where a state rule is identical to its federal
counterpart, analyses of the federal rule provide persuasive guidance as to the
application of our comparable state rule.").
It is also illuminating to contrast the work product protection to the attorney-
client privilege. The work product doctrine is designed to protect the efforts of an
attorney and those who assist attorneys from disclosure to a litigation adversary.
United States v. Am. Tel. & Tel. Co., 206 U.S. App. D.C. 317, 642 F.2d 1285, 1299
(1980) ("[T]he work product privilege does not exist to protect a confidential
relationship, but rather to promote the adversary system by safeguarding the fruits of
an attorney's trial preparations from the discovery attempts of the opponent. The
purpose of the work product doctrine is to protect information against opposing
parties, rather than against all others outside a particular confidential relationship, in
order to encourage effective trial preparation." (emphasis and footnote omitted)). By
contrast, the attorney-client privilege is designed to protect the confidentiality of
See also United States v. Mass. Inst. of Tech., 129 F.Sd 681, 687 (1st Cir. 1997)("[0]nly
disclosing material in a way inconsistent with keeping it from an adversary waives work
product protection."): United States v. Am. Tel. & Tel. Co., 206 U.S. App. D.C. 317, 642 F.2d
1285, 1299 (1980) ("A disclosure made in the pursuit of such trial preparation, and not
inconsistent with maintaining secrecy against opponents, should be allowed without waiver
of the [work product] privilege."); Wynn Resorts, Ltd. v. Eighth Judicial DIst. Court, Nev.
, 399 P.3d 334, 349 (2017) ("[Sjelective disclosure of work product to some, but not to
others, is permitted. Waiver of the protection is, however, usually found when the material is
disclosed to an adversary." (citations omitted)); LImstrom, 110 Wn. App. at 145 ("If a party
discloses documents to other persons with the intention that an adversary can see the
documents, waiver generally results.").
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communications between attorney and client. Id. ("The attorney-client privilege exists
to protect confidential communications, to assure the client that any statements he
makes in seeking legal advice will be kept strictly confidential between him and his
attorney; in effect, to protect the attorney-client relationship."(emphasis omitted)).
Since the purposes of the work product doctrine and the attorney-client
privilege are different, it should come as no surprise that standards for waiving
attorney-client privilege and work product protection are also different. The work
product protection permits disclosure to some, but not all, third parties:''^
Effective trial preparation often entails disclosing work product to
coparties and nonparties. Work product, including opinion work product,
may generally be disclosed to the client, the client's business advisers
or agents, the client's lawyer or other representative, associated lawyers
and other professionals working for the client, or persons similarly
aligned on a matter of common interest.
Restatement § 91 cmt. b. As a result, "while the mere showing of a voluntary
disclosure to a third person will generally suffice to show waiver of the attorney-client
privilege, it should not suffice in itself for waiver of the work product privilege." Am.
Tel. & Tel. Co., 642 F.2d at 1299(emphasis omitted).
In contrast, for the attorney-client privilege, "[t]he presence of a third person
during the communication waives the privilege." Morgan, 166 Wn.2d at 757; see also
In re Pac. Pictures Corp., 679 F.Sd 1121, 1126-27 (9th Cir. 2012) (noting "that
voluntarily disclosing privileged documents to third parties will generally destroy the
^2 See also O'Boyle, 218 N.J. at 198 ("We acknowledge, however, that how far beyond 'the
magic circle' privileged material may be shared depends on whether the disclosed material
is protected by the attorney-client privilege or the work-product doctrine.").
17
Kittitas County v. Allphin et al.
No. 93562-9
[attorney-client] privilege"); Restatement§ 79("The attorney-client privilege is waived
if the client, the client's lawyer, or another authorized agent of the client voluntarily
discloses the communication in a nonprivileged communication.").
The different standards of waiver for the attorney-client privilege and work
product protection result from the differing purposes behind the doctrines:
The [attorney-client] privilege, it is said, is designed to protect
confidentiality, so that any disclosure outside the magic circle is
inconsistent with the privilege; by contrast, work product protection is
provided against "adversaries," so only disclosing material in a way
inconsistent with keeping it from an adversary waives work product
protection.
United States v. Mass. Inst. of Tech., 129 F.3d 681, 687 (1st Cir. 1997). Compare
Pac. Pictures, 679 F.3d at 1127 ("The reason behind [the attorney-client privilege
waiver] rule is that, '[i]f clients themselves divulge such information to third parties,
chances are that they would also have divulged it to their attorneys, even without the
protection of the privilege.'" (internal quotation marks omitted)(second alteration in
original)(quoting Comments, Stuffing the Rabbit Back into the Hat: Limited Waiver of
the Attorney-Client Privilege in an Administrative Agency Investigation, 130 U. Pa. L.
Rev. 1198, 1207 (1982))), with Chevron Corp., 633 F.3d at 164-65 ("[T]he work-
product doctrine protects an attorney's work from falling into the hands of an
adversary, and so 'disclosure to a third party does not necessarily waive the protection
of the work-product doctrine.' Rather, the purpose behind the work-product doctrine
'requires [a court] to distinguish between disclosures to adversaries and disclosures
to non-adversaries[,]' and it is only in cases in which the material is disclosed in a
manner inconsistent with keeping it from an adversary that the work-product doctrine
18
Kittitas County v. Allphin et al.
No. 93562-9
is waived." (citations omitted) (alterations in original) (quoting Westinghouse Bee.
Corp. V. Republic of Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991)).''^
For the foregoing reasons, we are persuaded that the rule adopted by both
federal and state courts regarding the waiver of work product protection is sound and
thus adopt it as the rule in Washington State.
B. Kittitas County Did Not Waive Its Work Product Protection
We turn now to whether Kittitas County created "a significant likelihood that an
adversary or potential adversary in anticipated litigation" would obtain its work product
when it exchanged e-mails containing work product with Ecology. Restatement
§ 91(4). We hold that that Kittitas County did not waive its work product protection
when the deputy prosecutors and Ecology employees exchanged e-mails about the
NOVA litigation. The disclosures between Kittitas County and Ecology never created
a circumstance in which it was significantly likely that Chem-Safe would be able to
obtain the work product.
As discussed above, the work product doctrine permits parties to share work
product in certain contexts without waiving the accompanying protections of the
While it does not appear that any states or federal courts have officially adopted the same
standard of waiver for both the attorney-client privilege and work product protection, the
standards for waiver are sometimes conflated. See Wright et al., supra, § 2024, at 530-32
("There are some cases that suggest that any disclosure of a document to a third person
waives the work-product immunity to which it would otherwise be entitled. Decisions to this
effect confuse the work-product immunity with the attorney-client privilege.... Thus,the result
should be that disclosure of a document to third persons does not waive the work product
immunity unless it has substantially increased the opportunities for potential adversaries to
obtain the information. Most cases have so held and have found no waiver from disclosure."
(footnotes omitted)).
19
Kittitas County v. Allphin et al.
No. 93562-9
doctrine. See Restatement§ 91 cmt. b. A party can share work product with coparties
and others who are similarly aligned on a matter of common interests because such
parties are unlikely to disclose work product to adversaries. Am. Tel. & Tel. Co., 642
F.2d at 1299 (holding that "with common interests on a particular issue against a
common adversary, the transferee is not at all likely to disclose the work product
material to the adversary"). As a result, parties who share a common interest have a
reasonable expectation of confidentiality. In re Subpoenas Duces Tecum, 238 U.S.
App. D.C. 221, 738 F.2d 1367, 1372 (1984).
The parties do not need a written agreement to maintain confidentiality in order
for the work product protection to apply. "While [a written] agreement can serve as
evidence of the parties' reasonable intent that information exchanged between those
with a shared interest remain confidential, it should not be a prerequisite to the
application of the common interest doctrine." Katharine Traylor Schaffzin, An
Uncertain Privilege: Why the Common Interest Doctrine Does Not Work and How
Uniformity Can Fix It, 15 B.U. Pub. Int. L. J. 49, 82-83 (2005). Instead, a reasonable
expectation of confidentiality may derive from common litigation interests between the
disclosing party and the recipient. Am. Tel. & Tel., 642 F.2d at 1299 ("with common
interests on a particular issue against a common adversary, the transferee is not at
all likely to disclose the work product material to the adversary"); see also Subpoenas,
738 F.2d at 1372.
Here, there are several factors demonstrating that Kittitas County and Ecology
were "similarly aligned on a matter of common interest" and thus had a reasonable
20
Kittitas County v. Allphin et al.
No. 93562-9
expectation of confidentiality. Restatement § 91 cmt. b. First, RCW 70.105.005
obliges Kittitas County and Ecology to cooperate on hazardous waste regulation. See
RCW 70.105.005(10) (stating that "local government is the appropriate level of
government to plan for and carry out programs to manage moderate-risk waste, with
assistance and coordination provided by[Ecology]" (emphasis added)). Pursuant to
this statutory direction, Kittitas County and Ecology worked together throughout the
investigation into Chem-Safe's facility and throughout the appeal. CP at 2002-08.
Kittitas County shared litigation strategy with Ecology and asked for its technical
assistance on matters relating to the litigation. This common interest between Kittitas
County and Ecology was more than a general interest in environmental standards or
a mere shared desire to see a similar outcome in a legal matter. Instead, Kittitas
County and Ecology shared a common legal interest to ensure that Chem-Safe
complied with both local and state regulations regarding its operation of a hazardous
waste facility.
Second, Kittitas County and Ecology cooperated over a period of several years.
From 2008 to 2010, Kittitas County employees and Ecology employees visited the
Chem-Safe facility together, e-mailed one another about the matter, and met to
discuss the progress of bringing Chem-Safe into compliance. Id. at 2002-08. After the
NOVA was issued and throughout 2011 and 2012, Kittitas County deputy prosecutors
e-mailed Ecology employees to discuss litigation strategy and to request technical
support on relevant factual matters related to the NOVA litigation. See id. at 781, 2724.
21
Kittitas County v. Allphin et al.
No. 93562-9
The fact that Kittitas County and Ecology cooperated on the NOVA over a period of
several years weighs in favor of a finding that they shared a common interest.
Third, Kittitas County and Ecology engaged in considerable sharing of.work
product. Although Kittitas County and Ecology did not have a formal confidentiality
agreement, no written agreement to maintain confidentiality is required. Kittitas
County employees e-mailed Ecology employees several times to discuss litigation-
related technical, factual, and regulatory issues and the risks of different litigation
positions in the Chem-Safe lawsuit. They also drafted declarations for the litigation,
exchanging edits and notes on different versions. Such significant sharing of work
product affirms Kittitas County and Ecology's intent to develop a common strategy to
defend the NOVA in the related litigation.
Beyond the sharing of work product, there is evidence of other significant
cooperation between Kittitas County and Ecology. Kittitas County employees and
Ecology employees visited the Chem-Safe facility together several times while
working to bring Chem-Safe into compliance with local and state hazardous waste
regulations. Id. at 2002-08. Kittitas County employees and Ecology employees e-
mailed one another and met together to discuss the ongoing issues at Chem-Safe. Id.
at 2002-08. The two also shared relevant information with one another regarding
issues with Chem-Safe's compiiance, such as a letter from the Idaho State
Department of Environmental Quality about Chem-Safe. Id. at 2008. The NOVA cover
letter referenced the participation of both Kittitas County and Ecology in investigating
and working with Chem-Safe to resolve issues at its facility. Id. at 1265. This significant
22
Kittitas County v. Allphin et at.
No. 93562-9
level of cooperation between Kittitas County and Ecology further evinces their
common interest in the NOVA litigation.
As parties "similarly aligned on a matter of common interest," Kittitas County
and Ecology had a reasonable expectation of confidentiality and thus did not waive
work product protection by sharing e-mails back and forth. Restatement § 91 cmt. b.
C. Waiver of Work Product under the PRA
Despite the common interest between Kittitas County and Ecology, Chem-Safe
argues that the PRA entitles it to obtain the e-mails from Ecology. We disagree.
As public agencies, both Ecology and Kittitas County are subject to required
disclosures under the PRA. But, the PRA does not give an adversary the presumptive
right to obtain work product. In fact, the opposite is true; the PRA specifically exempts
work product from disclosure. RCW 42.56.290 ("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 this chapter." (emphasis added)). Because
they are work product, the disputed e-mails "would not be available to another party
under the rules of pretrial discovery for causes pending in the superior courts." Id\ see
CR 26(b)(4)(exempting work product from pretrial discovery unless a party shows
undue hardship). And the scope of the work product protection is no different in a PRA
setting than it is in a general civil litigation setting. Soter, 162 Wn.2d at 743("Moreover
it is important to consider that while this case happens to be a public records case,
when evaluating the extent of the protection offered by CR 26(b)(4), we are
23
Kittitas County v. Allphin et al.
No. 93562-9
interpreting the civil discovery rule that applies to all civil cases. When we interpret the
meaning of CR 26(b)(4)'s work product protection, we not only impact attorneys
representing government agencies, but we will impact all attorneys engaging in civil
practice."). It follows under RCW 42.56.290 that the e-mails are exempt from
disclosure under the PRA.
"[A] litigant should not succeed in obtaining opinion work product that would be
protected from discovery by [the civil rule] by seeking the opinion work product through
a public records request." DaRosa v. City of New Bedford, 471 Mass. 446, 459, 30
N.E.3d 790 (2015). Under CR 26(b)(4), we allow the disclosure of work product only
under narrow circumstances. For example, we permit disclosure when the mental
impressions of the attorney are directly at issue or the party seeking disclosure has
substantial need for factual information that he or she would be unable, without undue
hardship, to obtain. Limstrom, 136 Wn.2d at 611-12. However, even under the latter
situation, we still require that the mental impressions of the attorney be redacted. Id.Here, Chem-Safe has not alleged that the mental impressions of the deputy
prosecutors are at issue. Nor does Chem-Safe argue that it is entitled to the factual
information contained in the e-mails based on undue hardship. As a result, Chem-
Safe has not shown that it is entitled to disclosure of the e-mails under CR 26(b)(4),
and the mere fact that it brings its request under the PRA does not entitle it to
disclosure either.
In short, when Kittitas County sent the work product documents to Ecology, the
documents did not lose their protection as work product; they remained exempt from
24
Kittitas County v. Allphin et al.
No. 93562-9
discovery and therefore exempt from production under the PRA. See Restatement
§ 87(3)("Except for material which by applicable law is not so protected, work product
is immune from discovery or other compelled disclosure.").
CONCLUSION
We hold that the e-mails exchanged between Kittitas County and Ecology
constitute work product. All the e-mails were created by or for Kittitas County in
anticipation of the litigation between Kittitas County and Chem-Safe over the NOVA.
We also adopt the rule used by both federal and state courts for work product
protection waiver and hold that Kittitas County did not waive its work product
protection when it exchanged the e-mails with Ecology because disclosure of the e-
mails to Ecology did not make it substantially likely that Chem-Safe would obtain the
information. As a result, we affirm the Court of Appeals.
25
Kittitas County v. Allphin et at.
No. 93562-9
WE CONCUR.
26
Kittitas County v. Allphin, et al, No. 93562-9
Yu, J. (dissenting)
No. 93562-9
YU,J. (dissenting) — I agree with the majority on many points in this case.
The content of the disputed e-mails is clearly work product, so unless the
protections of the work product doctrine have been waived, the e-mails are exempt
from production in accordance with the Public Records Act(PRA), chapter 42.56
RCW. Majority at 12-13; RCW 42.56.290. And I agree with the implied waiver
doctrine as articulated by the majority in this case:
A party waives its work product protection when "the client, the
client's lawyer, or another authorized agent of the client. .. discloses
the material to third persons in circumstances in which there is a
significant likelihood that an adversary or potential adversary in
anticipated litigation will obtain it."
Majority at 15 (quoting Restatement(Third)of the Law Governing Lawyers,
§ 91(4)(Am.Law Inst. 2000)). I further agree that Kittitas County(County) and
the Department of Ecology had a common legal interest in this litigation, and I
agree that, ordinarily,"[a] party can share work product with coparties and others
Kittitas County v. Allphin, et a/., No. 93562-9
Yu, J. (dissenting)
who are similarly aligned on a matter of common interests because such parties are
unlikely to disclose work product to adversaries." Id. at 20.
However,the County and Ecology are not ordinary parties. They are
independent public agencies with independent obligations to comply with the PRA.
I would hold that the circumstances under which the County voluntarily disclosed
the disputed e-mails to Ecology in this case did create a significant likelihood that
an adversary would obtain them and, therefore, that the County presumptively
waived the protections ofthe work product doctrine. And while the common
interest doctrine can provide an exception to presumptive waiver by voluntary
disclosure, I would hold that it does not apply here. I therefore respectfully
dissent.
ANALYSIS
For obvious reasons, as explained by the majority, an attorney is entitled to
protect his or her thoughts, impressions, and litigation strategies. Id. at 8-10.
However, an attorney who practices within a public agency that is subject to our
public disclosure laws surely must appreciate the reality that all communications
could be subject to production once shared with a third party. I would hold that
attorneys who wish to benefit from the work product doctrine's protections must
take reasonable steps to safeguard the confidentiality oftheir materials and that in
this case, there is no evidence in the record that the County did so.
Kittitas County v. Allphin, et al, No. 93562-9
Yu, J. (dissenting)
A. Voluntary disclosure of work product to a third-party public agency
presumptively waives work product protections
The County and Ecology are both subject to the PRA's'"strongly-worded
mandate for open government.'" Fortgang v. Woodland Park Zoo, 187 Wn.2d
509, 512, 387 P.3d 690(2017)(quoting Rental Hons. Ass'n ofPuget Sound v. City
ofDes Moines, 165 Wn.2d 525, 527, 199 P.3d 393 (2009)). It is certainly true that
a public agency's work product enjoys the same substantive level of protection as
the work product of a private litigant in the civil discovery process. RCW
42.56.290; CR 26(b)(4); Sanders v. State, 169 Wn.2d 827, 854,240 P.3d 120(2010); Soter v. Cowles Publ'g Co., 162 Wn.2d 716, 743, 174 P.3d 60(2007)
(plurality opinion). However, we should account for the fact that the PRA creates
an entirely different procedure for the public to attempt to obtain any record,
including work product, that is "prepared, owned, used, or retained by any state or
local agency." RCW 42.56.010(3). This procedure, by design, substantially
increases the likelihood that anyone, including a litigation adversary, will obtain
the records. Therefore, I would hold that voluntary disclosure to a third-party
public agency presumptively waives the protections ofthe work product doctrine.
In accordance with the PRA,every public record of every public agency is
presumptively "available for public inspection and copying . . . unless the record
falls within the specific exemptions of[the PRA]." RCW 42.56.070(1). Everyone
in the world is entitled to request a public agency's records at any time and for
Kittitas County v. Allphin, et a/., No. 93562-9
Yu, J. (dissenting)
almost any reason. This is true even if the requester is an adversary to a public
agency, and even if the requester is likely attempting to use the PRA in order to
gain an advantage in civil litigation, because absent a specific statutory provision
to the contrary,"agencies may not inquire into the identity ofthe requestor or the
reason for the request." Cornu-Labat v. Hosp. Dist. No. 2, 111 Wn.2d 221, 240,
298 P.3d741 (2013).
Unlike civil discovery disputes, PRA disputes can be resolved only in an
independent cause of action, and the PRA places the burden on the party resisting
production to prove there is an applicable exemption. Safer, 162 Wn.2d at 731.
The PRA further provides that even if the party proves an applicable exemption, it
cannot obtain an injunction to prevent public examination ofthe records unless it
also proves that "such examination would clearly not be in the public interest and
would substantially and irreparably damage any person, or would substantially and
irreparably damage vital governmental functions." RCW 42.56.540.
Disclosure to a public agency does not by any means make it certain that an
adversary will be able to access the materials. It does, however, substantially
increase the likelihood ofthat happening because once the PRA applies,
adversaries have an entirely separate mechanism to obtain the materials outside of
the ordinary civil discovery process. That is well illustrated by the facts ofthis
case.
Kittitas County v. Allphin, et al. No. 93562-9
Yu, J. (dissenting)
Ecology had no statutory obligation to inform the County of Sky Allphin's
PRA request, but it chose to do so as a matter of discretion. See id. Upon learning
of the request, the Kittitas County Prosecutor's Office "immediately contacted
Ecology to ask that any records involving communications between the Kittitas
County civil deputy prosecutor and Ecology professional and technical staff not be
disclosed to Respondent Allphin until the County could seek court protection."
Clerk's Papers(CP)at 105. Ecology's public records officer agreed to refrain
from disclosing the disputed e-mails so that the County could seek a court order
enjoining disclosure. However,from the time ofthe initial pleadings. Ecology has
consistently stated that it did not intend to resist Allphin's request for the disputed
e-mails and that it would have produced them if the County had not filed this
declaratory judgment action.
The PRA provides actual or potential litigation adversaries with a procedure
that substantially increases their likelihood of obtaining work product that is
prepared, owned, used, or retained by a public agency. I would therefore adopt a
bright-line rule that voluntary disclosure to a third-party public agency
presumptively waives work product protection. Restatement § 91(4). This rule
would appropriately reflect the PRA's broad mandate for public disclosure.
Fortgang, 187 Wn.2d at 512. A bright-line rule would also give due regard for the
importance of maintaining predictability because "[a]n uncertain privilege, or one
Kittitas County v. Allphin, et al, No. 93562-9
Yu, J. (dissenting)
which purports to be certain but results in widely varying applications by the
courts, is little better than no privilege at all." Upjohn Co. v. United States, 449
U.S. 383, 393, 101 S. Ct. 677,66 L. Ed. 2d 584(1981). And finally, it would
reflect the fact that from the time of its inception, the work product doctrine has
always been "an intensely practical one, grounded in the realities of litigation in
our adversary system." United States v. Nobles, 422 U.S. 225, 238,95 S. Ct. 2160,
45 L. Ed. 2d 141 (1975). Whenever a public agency is a party, the PRA is an
unavoidable reality of litigation.
B. While the common interest doctrine can provide an exception to
presumptive waiver by voluntary disclosure, it does not apply in this case
This court recognizes an exception to implicit waiver by voluntary
disclosure pursuant to the'"common interest' doctrine." Sanders, 169 Wn.2d at
853. And while I believe that the majority's multifactor test introduces
unnecessary uncertainty in applying the common interest doctrine, I do agree that
the County and Ecology had a common legal interest in the underlying litigation
because they both "anticipate[d] litigation against a common adversary on the
same issue or issues." United States v. Am. Tel. & Tel. Co., 206 U.S. App. D.C.
317,642 F.2d 1285, 1299(1980); majority at 20-22.
Kittitas County v. Allphin, et al, No. 93562-9
Yu, J. (dissenting)
However, I would hold that the existence of a common legal interest does
not automatically satisfy the common interest doctrine in all circumstances.'
Contra majority at 22. Instead, I would hold that when at least one of the
commonly interested parties is a public agency subject to the PRA,the parties must
have some kind of mutual understanding that they will maintain confidentiality
when they voluntarily share work product. See Br. of Amici Curiae Wash. Coal,
for Open Gov't(WCOG),Am. Civil Liberties Union of Wash.(ACLU),&
Spokesman-Review at 5-6. And the record in this case shows that Ecology and the
County had no such mutual understanding at the time they shared their work
product.
There is no doubt that public agencies often must collaborate and should not
automatically lose the protections of the work product doctrine every time they do
so in writing. As noted by the Court of Appeals in this case, the County's
disclosures to Ecology were made for the purpose of"seeking assistance from
Ecology's technical professionals in enforcing the state and county environmental
laws." Kittitas County v. Allphin, 195 Wn. App. 355, 370, 381 P.3d 1202(2016),
review granted, 187 Wn.2d 1001 (2017). Without question, this is an entirely
'Likewise, the fact that a document is literally the product of one's work does not
automatically mean it is protected by the work product doctrine. Majority at 9("'[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 in litigation'"(quoting Morgan v. City of
Federal Way, 166 Wn.2d 747, 754, 213 P.3d 596 (2009))).
Kittitas County v. Allphin, et a/., No. 93562-9
Yu, J. (dissenting)
appropriate purpose for disclosing work product between government agencies,
and in many cases such collaboration is necessary for the agencies to perform their
duties. E.g., RCW 70.105.005(10). The Court of Appeals was correct to note that
if such an interagency disclosure necessarily waives the work product doctrine,
public agencies may "forgo communicating with other law enforcement
professionals during litigation due to the fear that their opponents will obtain their
mental impressions and ideas." Kittitas County, 195 Wn. App, at 370.
However,this concern does not justify a rule that any time two or more
public agencies collaborate on a common legal interest, all interagency disclosures
necessarily retain the protections ofthe work product doctrine. Such an approach
would effectively treat all public agencies as a single public agency, or as members
of"the same 'legal team.'" Br. of Amici Curiae WCOG,ACLU,& Spokesman-
Review at 3. We should reject that approach as inconsistent with the PRA.^ Id. at
4.
Instead, given the substantial increase in the likelihood that an adversary will
obtain work product if it is in the possession of a third-party public agency.
^ Notably, the federal Freedom of Information Act does specifically exempt work product
that is shared between different agencies. 5 U.S.C. § 552(b)(5). The PRA, however, does not,
and Washington applies the common interest doctrine as an exception to waiver, not as an
expansion of the work product doctrine or as an independent exemption. Sanders, 169 Wn.2d at
853-54.
Kittitas County v. Allphin, et a/., No. 93562-9
Yu, J. (dissenting)
discussed above, we should require that the parties have a mutual understanding
that each will take reasonable steps to maintain the confidentiality of work product
materials, including resisting production pursuant to the PRA.^ While I agree with
the majority that no written agreement is required, the record here shows that the
County and Ecology did not have any mutual understanding at all. See majority at
20.
Critically, in July 2011, Norm Peck, an environmental specialist employed
by Ecology who had been working with the County, directly asked the County's
attorney,"Should these e[-]mails be considered attorney-client privileged?" CP at
777. The attorney for the County responded that Ecology "is not my client
(Kittitas County is), therefore, these e[-]mails are not attorney-client privileged."
Id. at 776. The County's attorney referred Peck to an assistant attorney general
(AAG)for more information.
Peck then e-mailed the following to both the County's attorney and the
AAG:
I'm not sure I've encountered this particular situation before viz
attorney-client privilege.... I would like to get greater clarity on the
question of whether, when advising or discussing with the county in
matters bearing on legal issues[,] there exists any privilege. This
^ Although by statute, Ecology must provide "assistance and coordination" to counties in
managing moderate-risk waste, Ecology is indisputably a separate agency from the County.
RCW 70.105.005(10). Ecology is therefore a third party for purposes of evaluating implicit
waiver by voluntary disclosure, and it is also a public agency subject to the PRA.
Kittitas County v. Allphin, et a/., No. 93562-9
Yu, J. (dissenting)
discernment will likely impact content in some communications, as
some may bear on legal strategies.
Id. at 116(emphasis added). The AAG responded to both Peck and the County's
attorney in relevant part as follows:
In general terms, I do not think the county would be viewed as part of
the state in this instance, particularly because the [Attorney General's
Office] is specifically identified as providing legal services to state
officials and state agencies, and we do not provide legal assistance to
counties. The exception to this is in the criminal context when our
office does on occasion take on a criminal matter. Thus, I think the
starting assumption should be that ifan Ecology staffperson shares
privileged information with the county sharing that information would
likely result in a waiver ofany associated privilege.
That is not to say that there are no options here for keeping
information privileged. If there is a particular matter that Ecology and
county are working on together and there is likely to be enforcement,
there may be an ability for the two entities to enter a joint prosecution
agreement — our office has assisted in such agreements in other
matters. I don't know enough about the current situation to know
whether it might work here.
Id. at 775 (emphasis added). Peck thanked the AAG for her advice.
From this exchange, we know that both Ecology and the County expected to
share information regarding mental impressions and legal strategies in the
underlying litigation and that Ecology, at least, was interested in keeping some of
that information confidential. We also know that both Ecology and the County
were aware that any materials sent via e-mail might be subject to the PRA because
the e-mail exchange specifically includes a notice that "[a]11 email sent to this
address will be received by the Kittitas County email system and may be subject to
10
Kittitas County v. Allphin, et al, No. 93562-9
Yu, J. (dissenting)
public disclosure under Chapter 42.56 ROW and to archiving and review." Id. at
777. We further know that both Ecology and the County were specifically advised
that the attorney-client privilege was, at best, a questionable basis for protecting
confidentiality. And finally, we know that both Ecology and the County were told
that there may be options for protecting confidentiality in the context of a specific
case.
However,there is no indication that either Ecology or the County actually
made any further efforts to determine whether or how to protect confidentiality in
this specific case. In fact, the record shows precisely the opposite. Ifthe County
and Ecology truly had a mutual understanding at the time of disclosure that each
would take reasonable steps to maintain the confidentiality ofthe other's work
product, then there would have been no reason for Ecology to ask whether the
unrelated attorney-client privilege would also provide confidentiality. And even if
Ecology's nonattomey employee was uncertain, surely the attorney for the County
would have at least mentioned the work product or common interest doctrines
when responding to his question (unless, of course, the County did not formulate
that basis for resisting production until after the disclosures were made). And
finally, as noted above. Ecology was prepared to produce the disputed e-mails in
response to Allphin's PRA request and was prevented from doing so only because
the County filed this declaratory judgment action.
11
Kittitas County v. Allphin, et al. No. 93562-9
Yu, J. (dissenting)
Ecology thus clearly did not have a mutual understanding with the County
that both agencies would maintain the confidentiality of the disputed e-mails.
Without such an understanding, the County evinced "[i]ndifference to" the
substantial likelihood that an adversary could obtain the materials, which
"indicates that protection ofthe immunity was not important to the person claiming
the protection" at the time ofthe disclosure. RESTATEMENT § 91 cmt. b.
Therefore, I would hold that the common interest doctrine does not apply.
CONCLUSION
I would hold that the protections ofthe work product doctrine were waived
in this case, that the common interest doctrine does not provide an exception to
waiver based on the record presented here, and that the disputed e-mails are subject
to compelled production pursuant to the PRA. I therefore respectfully dissent.
12
Kittitas County v. Allphin, et a/,, No. 93562-9
Yu, J. (dissenting)
-lyl
13
Kittitas County v. Sky Allphin, et al.
No. 93562-9
MADSEN,J.(concurring in dissent)—agree with the dissent's conclusion that
work product protection was waived in this case. I write separately, however, because,in
my view, government parties should be treated the same as private parties, as neither the
Public Records Act(PRA), chapter 42.56 RCW,nor the Civil Rules distinguish work
product protection based on who the parties are. I would hold that the work product
protection is waived anytime a party voluntarily discloses its work product without a
mutual understanding that the parties will maintain confidentiality, regardless of whether
the parties are public agencies subject to the PRA or private individuals.
Accordingly, I concur in the dissent.
No. 93562-9
Madsen, J., concurring in dissent