Kittitas County v. Allphin

• Court: Washington Supreme Court
• Decided: May 17, 2018
• Docket: 93562-9
• Status: Published

Opinion

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This opinion was filed for record FlUE IN CLERKS OFFICE aintBC COUTT,SVOE OF WASHMeraN onmriyj. n

f'^rAiAluMk-f. aj. 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. Kittitas County v. Allphin et at. No. 93562-9

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). Kittitas County v. Allphin et al. No. 93562-9

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 Kittitas County v. Allphin et at. No. 93562-9

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. Kittitas County v. Allphin et al. No. 93562-9

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. Kittitas County v. Allphin et al. No. 93562-9

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. Kittitas County v. Allphin et al. No. 93562-9

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 Kittitas County v. Allphin et at. No. 93562-9

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. Kittitas County v. Allphin et al. No. 93562-9

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 Kittitas County v. Allphin et al. No. 93562-9

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).

10 Kittitas County v. Allphin et al. No. 93562-9

(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

11 Kittitas County v. Allphin et al. No. 93562-9

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

12 Kittitas County v. Allphin et al. No. 93562-9

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))).

13 Kittitas County v. Allphin et at. No. 93562-9

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.

14 Kittitas County v. Allphin et al. No. 93562-9

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,

15 Kittitas County v. Allphin et al. No. 93562-9

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.").

16 Kittitas County v. Allphin et at. No. 93562-9

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.

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.

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.

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