Philip D. Mckibben, Res. v. Leroy Christiansen, Pets.

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PHILIP D. McKIBBEN, individually and for and on behalf of LLC EVERETT I, a No. 68316-1- Washington limited liability company, and P.D. & M.K., LLC, a Washington limited DIVISION ONE liability company, UNPUBLISHED OPINION

Respondent,

v. O O cno

rHcr

LEROY CHRISTIANSEN and JUDY m :

2»

CHRISTIANSEN, husband and wife and c^ "n '-n

the marital community composed thereof; CO <T3r STEVEN M. FUESTON and JANE DOE P>~OfTj corn,-,

FUESTON, husband and wife and the marital community composed thereof; and S —to

DAVID C. EBERT and MICHELLE en O-:

CD

EBERT, husband and wife and the marital community composed thereof,

Petitioners,

FRANK COLACURCIO, JR. and JANE DOE COLACURCIO, husband and wife and the marital community composed thereof,

Defendants. FILED: March 18,2013

Appelwick, J. — A trial court has broad discretion to manage the discovery

process. When a party objects on the basis that documents requested during discovery

are protected by the attorney-client privilege and work product doctrine, the trial court

should determine whether a valid privilege exists. If so, it should evaluate whether the

party waived the privilege or an exception to the privilege exists. In making those

determinations, the trial court may, for instance, order the production of a privilege log,

appoint a special master, or conduct in camera review. It may not, however, do what

No. 68316-1-1/2

was done here: order disclosure of the allegedly privileged materials and reserve its

ruling on privilege for a later date. Such a ruling irreparably frustrates the purposes of

the privileges, because what is seen cannot become unseen. In other words, "it is not

an easy task to unring a bell." State v. Rader. 62 Or. 37, 40, 124 P. 195 (1912). We

reverse and remand for the trial court to exercise its discretion and rule on the asserted

privileges prior to ordering any disclosure of the challenged materials.

WE CONCUR: