Dempsey v. Spokane Wash. Hosp. Co.

• Decision Date: 14 December 2017
• Docket Number: No. 34573-4-III,34573-4-III
• Citation: 406 P.3d 1162
• Parties: ESTATE OF Michael DEMPSEY BY AND THROUGH its Personal Representative, Ellen SMITH, and Ellen Smith, Petitioners, v. SPOKANE WASHINGTON HOSPITAL COMPANY LLC d/b/a Deaconess Medical Center, Rockwood Clinic and Michael Wukelic, M.D., Respondents, Apogee Physicians a.k.a. Apogee Medical Group, Washington, P.C., Defendant.
• Court: Washington Court of Appeals

406 P.3d 1162

ESTATE OF Michael DEMPSEY BY AND THROUGH its Personal Representative, Ellen SMITH, and Ellen Smith, Petitioners,
v.
SPOKANE WASHINGTON HOSPITAL COMPANY LLC d/b/a Deaconess Medical Center, Rockwood Clinic and Michael Wukelic, M.D., Respondents,

Apogee Physicians a.k.a. Apogee Medical Group, Washington, P.C., Defendant.

No. 34573-4-III

Court of Appeals of Washington, Division 3.

FILED DECEMBER 14, 2017

Mary Elizabeth Schultz, Mary Schultz Law PS, 2111 E. Red Barn Ln., Spangle, WA, 99031-5005, for Petitioners.

Brian T. Rekofke, Attorney at Law, 1100 US Bank Bldg., 422 W. Riverside Ave., Spokane, WA, 99201-0369, Steven Joseph Dixson, Attorney at Law, 422 W. Riverside Ave., Ste. 1100, Spokane, WA, 99201-0302, James B. King, Christopher Joseph Kerley, Markus William Louvier, Evans, Craven & Lackie, P.S., 818 W. Riverside Ave., Ste. 250, Spokane, WA, 99201-0994, for Respondents.

PUBLISHED OPINION

Lawrence-Berrey, J.

¶1 Two issues are before us. The first issue is whether an attorney may assert attorney work product protections over documents the attorney prepared and sent to a testifying expert. We answer that the attorney may, but that attorney work product protections are waived to the extent the attorney provided facts to the testifying expert to serve as the bases for that expert's opinions. The second issue concerns whether a testifying expert's draft opinions are discoverable or whether they are protected by expert witness work product protections. We answer that draft opinions are subject to testifying expert work product protections and are not discoverable.

¶2 We reverse the trial court's order and remand to the special discovery master for an in camera review consistent with this opinion.

PROCEDURE

¶3 In 2014, Ellen Smith, both personally and as personal representative for the Estate of Michael Dempsey, filed suit alleging medical negligence against Deaconess, Rockwood Clinic, and Dr. Michael Wukelic. In late 2015, the trial court appointed a special discovery master to hear and rule on discovery disputes.

¶4 The plaintiffs retained medical expert Dr. Steven Simons to testify on their behalf at trial. Counsel for Dr. Wukelic issued a subpoena duces tecum to Dr. Simons. The subpoena duces tecum requested Dr. Simons to produce for his deposition "[a]ll letters or correspondence, either written or electronic, whether received or sent by you, concerning Michael Dempsey which are not otherwise part of the record and chart." Clerk's Papers (CP) at 78. The request specifically included production of any and all records received from any source, "including plaintiffs' counsel." Id. The subpoena duces tecum further demanded "[a]ny and all notes, memos, either written or electronic, which you have made while performing work on this case. This is meant to include handwritten notes concerning conversations with ... plaintiffs' counsel...." Id.

¶5 Plaintiffs objected to the subpoena on multiple grounds, including work product. In turn, Dr. Wukelic filed a motion to compel production and to overrule the plaintiffs' objections. The plaintiffs responded with a countermotion, requesting the special discovery master to quash the subpoena as prohibitively broad. Prior to filing their motions, the parties did not engage in a CR 26(i) conference.

¶6 The special discovery master issued an order requiring plaintiffs to provide him all

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documents sought by Dr. Wukelic that were not previously disclosed so he could review the documents in camera. In addition, the special discovery master ordered plaintiffs to submit to him a privilege log describing those documents they contend are privileged together with a description of the privilege asserted. Although the order appeared to protect privileged documents from disclosure, the order itself stated that no privileges were available to plaintiffs. In the order, the special discovery master found:

[T]here is no attorney-client privilege between plaintiffs' counsel and Dr. Simons that would protect from disclosure documents ... exchanged between plaintiffs' counsel and Dr. Simons, and that plaintiffs' claim of a "work product" privilege protecting communications between plaintiffs' counsel and Dr. Simons is inapplicable in that Dr. Simons is a testifying expert.

CP at 189.

¶7 Plaintiffs sought review by the trial court of the special discovery master's order. The trial court affirmed the special discovery master's order. Plaintiffs then requested discretionary review, and a panel of this court granted their request.

LAW AND ANALYSIS

¶8 This court reviews a trial court's ruling on a discovery motion for an abuse of discretion. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 339-40, 858 P.2d 1054 (1993). "A trial court abuses its discretion when its order is manifestly unreasonable or based on untenable grounds." Id. at 339, 858 P.2d 1054. "A trial court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law." Id.

A. FEDERAL INTERPRETATIONS OF WORK PRODUCT PROTECTIONS DO NOT GUIDE OUR DECISION

¶9 Both parties urge us to be guided by federal interpretations of work product protections under FED. R. CIV. P. 26(b)(4). FED. R. CIV. P. 26(b)(4)(B)¹ explicitly protects draft reports of testifying expert witnesses from disclosure. FED. R. CIV. P. 26(b)(4)(C)² explicitly protects some disclosures of attorney work product sent to a testifying expert witness. We reject the parties' requests to be guided by federal interpretations.

¶10 Where a state rule parallels a federal rule, analysis of the federal rule may be looked to for guidance in interpreting the state rule. Beal v. City of Seattle, 134 Wash.2d 769, 777, 954 P.2d 237 (1998). But "[a]ny party asking us to adopt the federal interpretation of a rule bears the burden of overcoming our reluctance to reform rules practice through judicial interpretation rather than rule making." Washburn v. City of Federal Way, 178 Wash.2d 732, 750, 310 P.3d 1275 (2013).

¶11 Nothing in CR 26(b) is similar to the explicit work product protections found in the federal rules. For us to adopt federal interpretations of the federal civil rules, we would be reforming our rule practice through judicial interpretation rather than rule making. We refuse to do this.³

B. CR 26(b)(4) APPLIES TO ATTORNEY WORK PRODUCT IN THE POSSESSION OF A TESTIFYING EXPERT

¶12 We first review the mechanism by which the civil rules permit one party to

406 P.3d 1166

request documents from another party's expert witness and the mechanism by which an objection may be lodged. CR 26(b) provides:

(5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subsection (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and to state such other information about the expert as may be discoverable under these rules. (ii) A party may, subject to the provisions of this rule and of rules 30 and 31, depose each person whom any other party expects to call as an expert witness at trial.

¶13 CR 30 governs depositions on oral examination, and CR 31 governs depositions on written questions. Nothing in those rules discuss the scope of a subpoena duces tecum issued to a testifying expert. We, therefore, look to other rules.

¶14 Under CR 45, an attorney of record may subpoena a nonparty to a deposition and require such person to produce documents. CR 45(a)(3)-(4). Any party opposing a subpoena may bring a motion to quash or modify the subpoena for various reasons, including if the subpoena "requires disclosure of privileged or other protected matter and no exception or waiver applies." CR 45(c)(3)(A)(iii). Here, plaintiffs contend that the subpoena requires disclosure of both attorney and expert witness work product.

¶15 We next briefly review how attorney work product protections arose and how those protections have been preserved in our state civil rules:

The attorney work product doctrine first appears in Hickman v. Taylor[, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947) ]. It is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries. The Hickman doctrine is now codified in [our] civil rules at ... CR 26(b)(4).

Soter v. Cowles Publ'g Co., 131 Wash.App. 882, 893, 130 P.3d 840 (2006) (footnote omitted) (internal quotation marks and citations omitted), aff'd, 162 Wash.2d 716, 174 P.3d 60 (2007).

¶16 CR 26(b)(4) provides in relevant part:

Trial Preparation: Materials. Subject to the provisions of subsection (b)(5) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this rule and prepared ... for trial by or for another party or by or for that other party's representative (including a party's attorney, consultant, surety, indemnitor, insurer, or agent) 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 the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

¶17 We note that CR 26(b)(5), not CR 26(b)(4), controls the...