A.G. v. Corp. of the Catholic Archbishop of Seattle, s. 65111–1–I

• Decision Date: 21 June 2011
• Docket Number: Nos. 65111–1–I,65112–9–I.,s. 65111–1–I
• Citation: 271 P.3d 249,162 Wash.App. 16
• Court: Washington Court of Appeals
• Parties: A.G., D.F., and J.J., Respondents, v. CORPORATION OF THE CATHOLIC ARCHBISHOP OF SEATTLE, a sole corporation, Appellant,Congregation of Christian Brothers—Brother Rice Province, Eastern American Province—Congregation of Christian Brothers, f/k/a Congregation of Christian Brothers–North American Province; and Christian Brothers' Institute, a New York not for profit corporation, and Edward G. Courtney, Defendants.J.B., M.B., and D.L., Respondents, v. Corporation of the Catholic Archbishop of Seattle, a sole corporation, Appellant,Congregation of Christian Brothers—Brother Rice Province, Eastern American Province—Congregation of Christian Brothers, f/k/a Congregation of Christian Brothers–North American Province; and Christian Brothers' Institute, a New York not for profit corporation, and Edward G. Courtney, Defendants.

162 Wash.App. 16

271 P.3d 249

A.G., D.F., and J.J., Respondents,

v.CORPORATION OF THE CATHOLIC ARCHBISHOP OF SEATTLE, a sole corporation, Appellant,Congregation of Christian Brothers—Brother Rice Province, Eastern American Province—Congregation of Christian Brothers, f/k/a Congregation of Christian Brothers–North American Province; and Christian Brothers' Institute, a New York not for profit corporation, and Edward G. Courtney, Defendants.J.B., M.B., and D.L., Respondents,

v.Corporation of the Catholic Archbishop of Seattle, a sole corporation, Appellant,Congregation of Christian Brothers—Brother Rice Province, Eastern American Province—Congregation of Christian Brothers, f/k/a Congregation of Christian Brothers–North American Province; and Christian Brothers' Institute, a New York not for profit corporation, and Edward G. Courtney, Defendants.

Nos. 65111–1–I

65112–9–I.

Court of Appeals of Washington, Division 1.

April 25, 2011.Publication Ordered June 21, 2011.

Jeffrey Iver Tilden, Jeffrey M. Thomas, Gordon Tilden Thomas & Cordell LLP, Seattle, WA, for Appellant.

Michael A. Patterson, Karen A. Kalzer, Patterson Buchanan Fobes Leitch & Kalzer, Inc., PS, Seattle, WA, for Appellant, Corp. of the Catholic Archbishop.

Michael Thomas Pfau, Jason Paul Amala, Darrell L. Cochran, Pfau Cochran Vertetis Amala PLLC, Seattle, WA, for Respondents.APPELWICK, J.

[162 Wash.App. 18] ¶ 1 After settling these cases, the Archdiocese filed a motion to enforce the return or destruction of certain discovery documents, in accordance with a stipulated protective order the parties had signed. The trial court denied the Archdiocese's motion and instead modified the protective order to allow opposing counsel, Pfau Cochran, to retain the documents because they were the subject of ongoing discovery disputes in other cases. The question of whether the documents could be used in those cases was expressly left to the discretion of the judges in those other cases. We find no abuse of discretion. We affirm.

FACTS

¶ 2 The law firm of Pfau Cochran Vertetis Kosnoff PLLC (Pfau Cochran) represented plaintiffs A.G., D.F., J.J. and J.B., M.B., D.L. in two sexual abuse cases against the Corporation of the Catholic Archbishop of Seattle (Archdiocese).¹ By January 29, 2010, the plaintiffs in both cases had settled their claims.

[162 Wash.App. 19] ¶ 3 Both cases involved lengthy discovery litigation. Plaintiffs spent six months pursuing documents about the Archdiocese's knowledge and handling of its employees that were accused of sexual abuse. The Archdiocese resisted producing these documents on the grounds of privilege and privacy. But, in an August 25, 2009 order, the trial court ruled that the Archdiocese had failed to meet its burden in proving either of those defenses. The trial court ordered the Archdiocese to produce responsive information and documents, subject to a protective order. In the months that followed, the Archdiocese continued to resist discovery efforts. The trial court granted additional motions to compel production and to compel testimony in September and early November. Finally, on November 24, 2009, the court and attorneys for both parties signed the stipulation and protective order (protective order). The Archdiocese produced the documents as required by the court order.

¶ 4 The protective order broadly governed the use and handling of all documents and records that were produced during discovery in accordance with the court's orders. It specifically protected the documents, material, and information produced and designated them as “confidential”, and further provided that the party receiving such information not use, copy, or disseminate it for any purpose other than this litigation. The protective order provided, in relevant part, that within 30 days after disposition or settlement of the case, the copies of the confidential and protected information should, “at the option of the producing party or person, be destroyed.” The protective order also contained a provision stating:

Nothing in this Stipulation shall prevent a party from requesting further relief from the Court regarding the information covered by this Stipulation and nothing in this Stipulation shall prevent the Court from modifying the Stipulation or resulting Order as the Court deems necessary to comply with the law.

¶ 5 After these two cases had settled, in January 2010, the Archdiocese contacted Pfau Cochran seeking the return of the confidential documents it had produced. At that time, however, Pfau Cochran was involved in several other pending cases against the Archdiocese that involved similar claims, discovery requests for the same documents, and similar resistance from the Archdiocese. Pfau Cochran, citing the ongoing litigation and the interests of efficiency, resisted the return or destruction of those documents. On February 24, 2010, the Archdiocese brought a motion to enforce the protective order, requesting that the trial court uphold the protective order's terms and compel Pfau Cochran to return or destroy the documents. Pfau Cochran submitted a response opposing the motion to enforce, arguing first that the Archdiocese's requested relief would result in inefficiency and a waste of resources for the parties and the judicial system, and second, that “the Archdiocese specifically agreed that the Court could modify the protective order as justice requires.” Accordingly, Pfau Cochran requested that the court modify the protective order and allow it to keep the documents for use in the ongoing cases, subject to the original protective terms. On March 10, 2010, the trial court denied the Archdiocese's motion to enforce the protective order “for the reasons stated in plaintiff's response,” essentially granting a modification of the order. The court ruled that:

[T]he terms of the protective order at issue shall remain in place and shall govern the use of these materials in the [other] pending litigations [involving the Archdiocese and Pfau Cochran]. Should the parties in the above cases seek to modify the terms of the protective orders, they may do so before the judge assigned to the particular case.

¶ 6 The Archdiocese timely appealed.

DISCUSSION

¶ 7 An appellate court reviews a trial court's discovery order for abuse of discretion. John Doe v. Puget Sound Blood Ctr., 117 Wash.2d 772, 778, 819 P.2d 370 (1991). Abuse of discretion will be found only on a clear showing that the trial court's exercise of discretion was manifestly unreasonable, or exercised on untenable grounds, or made for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971). A trial court's discretionary decision is based on untenable grounds or made for untenable reasons if it rests on facts unsupported in the record or was reached by applying the wrong legal standard. T.S. v. Boy Scouts of Am., 157 Wash.2d 416, 423–24, 138 P.3d 1053 (2006).

¶ 8 CR 26(c) confers the trial court with broad discretion in discovery to determine when a protective order is appropriate. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Our Supreme Court, in interpreting this rule, has further established that protective orders may be subject to later modification. Marine Power & Equip. Co., Inc. v. Dept. of Transp., 107 Wash.2d 872, 876, 734 P.2d 480 (1987). While there has been little agreement in courts across the country about exactly what showing is necessary to support modification of a protective order, the Washington State Supreme Court expressly adopted a framework for the analysis of modification in Marine Power.² Under that framework, a court should consider and balance several factors in deciding whether to allow modification:

(1) the nature and purpose of the original protective order; (2) the degree of reliance upon the order by the protected party; (3) the purpose and status of the party requesting modification; and (4) the government's role in the dispute.Id.

¶ 9 Marine Power dealt with the modification of a protective order to allow third-party access to protected discovery, but it did not specifically address modification sought for the benefit of a party to the original order. Accordingly, the Archdiocese suggests that the Marine Power analysis should not apply here, and that the court must undertake a different analysis. It characterizes Pfau Cochran as a signatory/party to the protective order, rather than a third party. The Archdiocese argues, in essence, that the protective order should be treated more like a contract, which Pfau Cochran should not be able to breach or modify after having signed. Pfau Cochran was aware of its ongoing litigation in other cases when it signed the original protective order. The Archdiocese asserts that if Pfau Cochran objected to certain terms or wanted to be able to keep documents for use in other similar cases, it should have indicated as much or declined to sign the protective order in the first place.

¶ 10 The Archdiocese contends that it relied on the protective order. It refused to produce the documents at issue until Pfau Cochran signed the protective order and agreed to return or destroy its copies at the conclusion of the case. But, the Archdiocese did not, like a party to a contract negotiation, merely condition its disclosure of the confidential documents on the existence of a protective order. Instead, the trial court ordered the Archdiocese to produce the documents, holding that they were neither privileged nor protected by a privacy right. The Archdiocese was required under this court order to produce the documents at that point in time. The parties signed the protective order on November 24, 2009, months after the court had already declared the documents discoverable and ordered their disclosure, on August 25, 2009. We decline to treat the stipulation and protective order merely as a private contract. Both parties signed the document, but they did so...