Firestorm 1991, Matter of

Decision Date16 May 1996
Docket NumberNos. 62318-1,62214-1,62215-9 and 62216-7,62213-2,62212-4,s. 62318-1
Citation916 P.2d 411,129 Wn.2d 130
CourtWashington Supreme Court
PartiesIn re the Matter of FIRESTORM 1991.
Thorsrud, Cane & Paulich, Russell C. Love, Seattle, Bryan P. Harnetiaux, Spokane, Lane, Powell, Spears & Lubersky, Thomas W. Top, Michael Runyan, Seattle, amicus curiae for Washington Defense Trial Lawyers

Lukins & Annis, Darrell W. Scott, Erika Balazs, Spokane, for Interested Party.

Charles C. Wiggins, Bainbridge Island, Julie A. Twyford, Spokane, Winston & Cashatt, Tim M. Higgins, Spokane, Amos R. Hunter, Des Moines, Edwards, Sieh, Hathaway, Smith & Goodfriend, Malcolm Edwards, Seattle, for Petitioner Firestorm 1991.

Paine, Hamblen, Coffin & Brooke, John C. Riseborough, Donald G. Stone, Robert Neate, Spokane, David A. Kulisch, Spokane, for Respondent.

JOHNSON, Justice.

This case involves the review of a trial court decision disqualifying Plaintiffs' counsel for conducting an ex parte interview with an expert hired by counsel for the Defendants. The trial court concluded this ex parte interview violated CR 26 and disqualification was the appropriate sanction. Based on the facts of this case and the discussion herein, we reverse the order of disqualification, order reinstatement of counsel, and remand for further proceedings.

FACTS

Shortly after filing suit in this case and after requesting, as reported in the media, for anyone with relevant information as to the cause of the fires to contact their office, Plaintiffs' counsel, Richard Eymann and Steve Jones, were contacted by Norman Buske. Buske told Jones that he had been hired by Paine, Hamblen, Coffin, Brooke & Miller (Paine Hamblen), counsel for several area utility companies, 1 in investigating the 1991 firestorm, which consisted of over 90 wildfires. He told them he had important information on one of the fires, the Chattaroy fire, which was the fire relevant to this lawsuit. Buske told Jones he had extreme concern that his information would be concealed or hidden by the utility company Defendants and their counsel.

At Buske's request, Jones met with Buske at Buske's home on Saturday, October 16, 1993. Buske identified himself as a consulting scientist employed by Paine Hamblen and Inland Power to investigate Inland Power's involvement in the firestorm fires. At the time of this interview, Inland Power was not a party to the Chattaroy fire lawsuit. Buske stated he had spoken with David Kulisch (a partner in Randall & Danskin, P.S., and former associate in Paine Hamblen) and Donald Stone (partner in Paine Hamblen), who had both informed him he was a consulting expert whose observations and opinions would be sealed. Buske said he felt he had an ethical and moral duty to make his information available to the Plaintiffs.

Jones told Buske he believed it was legal for Buske to voluntarily disclose relevant factual information. Buske and Jones then went on to set some ground rules for a future statement by Buske about his factual observations. Buske wanted to make his statement as quickly as possible, again expressing fear the information he possessed would be sealed or taken from his control.

The next day, Eymann and Jones interviewed Buske at their law office. In addition to the statements he made, Buske delivered copies of pictures and notes he had taken while investigating the Chattaroy fire and which he still possessed. A transcript of this interview, edited jointly by Eymann and Buske, was delivered to David Kulisch's law office the day following the interview. On October 19, 1993, Kulisch's client, Inland Power, sent a letter to Eymann and Jones objecting to their contact with Buske. The letter asserted Eymann and Jones violated discovery and ethical rules in having had contact with an expert retained by Inland Power.

The next month, Eymann and Jones associated Tim Higgins and M.D. Williams of the firm Winston & Cashatt as counsel in the firestorm cases. After associating as counsel, Higgins sought an independent legal opinion as to whether his firm should review the Buske material. The attorney who reviewed the material opined he believed Eymann On July 12, 1994, Paine Hamblen filed a motion to disqualify counsel, seeking to disqualify both the Eymann law firm and Winston & Cashatt, and also for return of privileged information and materials. This motion was filed approximately nine months after the ex parte interview. The motion was argued on August 19, 1994 in the Superior Court for Spokane County. Inland Power joined Washington Water Power in this motion on the day the motion was argued. The only evidence considered by the court was in the form of affidavits; no testimony was heard by the court.

and Jones had not violated any ethical or discovery rules and it would be proper for Higgins' law firm to review the Buske material.

After hearing argument, the trial court issued an oral decision disqualifying Eymann, Jones, and the Eymann law firm, but not Winston & Cashatt. The judge found that Eymann and Jones were on notice as to the unclear status of Buske and had clearly violated CR 26 by conducting the interview. In not disqualifying Winston & Cashatt, the court stated Higgins had behaved appropriately in seeking an independent legal opinion before reviewing the materials, and had not violated the discovery rules. Without finding a violation of the rules, the court stated it would be illogical to disqualify Winston & Cashatt.

The court entered its written order of disqualification on September 29, 1994. The written order contained no findings of fact or conclusions of law. Eymann filed a motion for reconsideration with additional briefs and affidavits from both sides, which was denied. We granted direct review.

ANALYSIS
I

We first must determine the proper standard of review in this case. The trial court found a violation of CR 26 based on the numerous affidavits submitted by the parties Since this case involves the application of a court rule to a set of particular facts, this is a question of law, and will be reviewed de novo on appeal. See State v. Tatum, 74 Wash.App. 81, 86, 871 P.2d 1123, review denied, 125 Wash.2d 1002, 886 P.2d 1134 (1994). When a trial court fails to make any factual findings to support its conclusion, and the only evidence considered consists of written documents, an appellate court may, if necessary, independently review the same evidence and make the required findings. Bryant v. Joseph Tree, Inc., 119 Wash.2d 210, 222, 829 P.2d 1099 (1992).

and the oral argument of counsel. No testimony was heard by the trial court. The trial court made no findings of fact and did not indicate which utility employed Buske as an expert. The court based its decision on its belief that Eymann and Jones should have been on notice as to the unclear status of Buske and the potential for the disclosure of privileged information. However, the court did not find any of the information disclosed was privileged.

II

Our review of this case requires us to determine whether counsel violates CR 26 by conducting an ex parte interview with an expert previously employed by counsel for an opposing party.

The trial court based its disqualification order on its holding that Eymann and Jones clearly violated CR 26, but the court did not indicate which specific provision of CR 26 it felt Eymann and Jones had violated. In makings its ruling, the trial court stressed the fact that under the discovery rules judicial oversight is critical to making proper determinations regarding discovery of experts and whether or not information is privileged. While this is correct, it does not resolve the issue here: we must decide which rule applies, what it requires, and what, if any, sanctions might apply.

CR 26 is the court rule governing discovery practice in all civil matters. In general, the rule allows for discovery 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 in anticipation of litigation or for trial by or for another party or by or for that other party's representative ... only upon a showing that the party seeking discovery has substantial need of the materials ... and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery ... 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.

of anything material to the litigation, except for things protected by privilege. CR 26(b)(1). Respondents assert both CR 26(b)(4) and CR 26(b)(5) prohibited Eymann and Jones from contacting Buske ex parte and require their disqualification. CR 26(b)(4) is more commonly known as the work product rule. It provides in relevant part:

CR 26(b)(4).

The other rule the Respondents claim was violated is CR 26(b)(5) which governs the discovery of 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.... (ii) A party may ... depose each person whom any other party expects to call as an expert witness at trial.

(B) A party may discover facts known or opinions held by an expert who is not expected to be called as a witness at trial, only as provided...

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