In re Detention of Williams

• Decision Date: 07 May 2001
• Docket Number: No. 46422-1-I., No. 45761-6-I
• Citation: 22 P.3d 283,106 Wash.App. 85
• Parties: In re the DETENTION OF Eddie Leon WILLIAMS, Jr. State of Washington, Petitioner, v. Eddie Leon Williams, Jr., Respondent. In re the Detention of Darren R. Strong. State of Washington, Respondent, v. Darren R. Strong, Petitioner.
• Court: Washington Court of Appeals

22 P.3d 283

106 Wash.App. 85

In re the DETENTION OF Eddie Leon WILLIAMS, Jr.

State of Washington, Petitioner, v. Eddie Leon Williams, Jr., Respondent.

In re the Detention of Darren R. Strong.

State of Washington, Respondent, v. Darren R. Strong, Petitioner.

Nos. 45761-6-I, 46422-1-I.

Court of Appeals of Washington, Division 1.

May 7, 2001.

David J.W. Hackett/45761-6-I, 46422-1-I, Deputy Pros. Atty., for the State.

David A. Trieweiler/46422-1-I, Seattle, for Petitioner Strong.

Bernadette J. Foley/45761-6-I, Terrance Kellogg, Seattle, for Respondent Williams.

BAKER, J.

The State filed petitions to commit Darren Strong and Eddie Leon Williams, Jr. as sexually violent predators pursuant to RCW 71.09. The trial court in each case found probable cause and assigned them for trial. The State moved for a CR 35 psychological examination of the defendants. In Strong's case, the trial court granted the motion, and Strong appeals. In Williams' case, the trial court denied the motion, and the State appeals. In addition, Strong appeals an order granting the State's motion to compel discovery of his Social Security records; and the State appeals an order quashing its video deposition of Williams.

We decline to issue a blanket prohibition on discovery under the civil rules in RCW 71.09 cases, and accordingly hold that the State may obtain a CR 35 examination upon a showing of good cause. In Strong's case, we hold that the trial court did not abuse its discretion in ordering a CR 35 examination. In Williams' case, we remand to the trial court to evaluate whether good cause existed to grant the State's CR 35 motion. We further hold that Strong's Social Security records in the possession of his attorney are not protected from disclosure by the work product doctrine or by RPC 1.6(a). Lastly, we reverse the trial court's order quashing the video deposition of Williams.

I Darren Strong

The State filed a petition to commit Darren Strong as a sexually violent predator. At the probable cause hearings, the State submitted one report by Dr. Richard Packard, a privately employed psychologist retained by the King County Prosecutor's Office for this case, along with two reports by Dr. Paul Daley, a consulting psychologist at Clallam Bay Corrections Center. Dr. Daley examined Strong in 1994 and 1999 in support of an RCW 71.09 petition, and concluded that Strong's mental abnormalities made it highly likely that Strong would commit further acts of predatory sexual violence. Dr. Packard never met or interviewed Strong, but opined that Strong was a sexually violent predator based on a review of Dr. Daley's reports and other records. The trial court found probable cause to hold Strong in custody as a sexually violent predator pending trial.

The State obtained a letter from the Social Security Administration (SSA) seeking information from the Department of Corrections regarding allegations of pedophilia in connection with a disability claim made by Strong. The State learned that Strong had been examined by psychologist Dr. Jeffrey Ulmer in connection with this disability claim. Given the potential significance of these examination results, the State issued a subpoena duces tecum to the SSA, but received no response. The State also subpoenaed Dr. Ulmer. Strong filed a motion for protective order seeking to quash the subpoena directed at Dr. Ulmer and to prohibit the State from obtaining his Social Security records. The trial court denied Strong's motion, holding that Strong failed to identify a privilege that would prevent the State's discovery of his Social Security records. The State then served Strong's counsel with a request to produce documents from Strong's Social Security files. Strong objected, arguing that the materials were nondisclosable based on the federal Privacy Act and the work-product privilege. The State filed a motion to compel. The trial court granted the State's motion and ordered Strong to (1) produce a privilege log covering all documents in the possession of Strong or his attorney that were withheld pursuant to a claim of privilege; (2) disclose all of Strong's Social Security records in the possession of Strong or his attorney; and (3) acquire and disclose, or sign a release permitting the State to acquire, all of Strong's Social Security records directly from SSA.

The State also moved for a CR 35 psychological examination of Strong, to be performed by Dr. Packard. The State submitted a declaration from Dr. Packard outlining the nature of the exam and explaining that it was necessary to achieve an accurate, current assessment of Strong's mental state. The trial court granted the State's motion over Strong's objection, finding that Dr. Packard specializes in the treatment of sex offenders, that Strong's mental condition was in controversy, and that there was good cause for compelling the examination. This appeal followed.

Eddie Leon Williams

Prior to his scheduled release from prison, psychologist Dr. Iris Rucker performed an evaluation of Williams in order to determine whether he might be a sexually violent predator as defined by RCW 71.09. Dr. Rucker recommended civil commitment, and the State filed a petition to commit Williams as a sexually violent predator.

The State's petition was supported by the certification for determination of probable cause and a report authored by Dr. Leslie Rawlings, a licensed psychologist and certified sex offender treatment provider retained by the King County Prosecuting Attorney for this case. Dr. Rawlings opined that Williams would more likely than not engage in further acts of predatory sexual violence if released. However, because of "unusual time constraints in this case," Dr. Rawlings' opinion was based solely on a review of available records, rather than his preferred method of interviewing the person who is the subject of the evaluation. The trial court found probable cause to believe that Williams is a sexually violent predator. The case was set for trial, and both sides commenced discovery.

The State sought to compel a CR 35 psychological evaluation of Williams by Dr. Rawlings. Williams opposed the State's motion, claiming that an evaluation would violate his constitutional privacy rights and that RCW 71.09 was punitive as applied, thereby allowing him to assert a Fifth Amendment right to remain silent. He also argued that his mental condition was not in controversy and that there was no good cause for the evaluation because Dr. Rucker had already conducted tests and interviews and produced a report. The trial court denied the State's motion on the grounds that "compelling the respondent to submit to such an examination is not warranted by the Civil Rules, nor by the provisions of RCW 71.09."

The State then filed a renewed motion for a CR 35 evaluation in light of the Washington Supreme Court's decisions in In re Detention of Turay,¹ and In re Detention of Campbell,² contending that the court in Turay and Campbell rejected most of the arguments relied upon by Williams in opposing the State's prior motion for a CR 35 evaluation. However, the State did not file a motion for reconsideration within the time constraints of CR 59(b). The trial court denied the State's renewed motion without comment.

The State also sought a video deposition of Williams. Williams moved to quash the deposition, citing privacy interests, infringement of his Fifth Amendment rights, and other discovery protections under CR 26. The trial court granted Williams' motion, stating that "[t]he respondent may decline to have his deposition taken; provided, however, that respondent, by declining to be deposed, may not testify at trial."

The State appealed. This court granted discretionary review and consolidated Williams' appeal with Strong's.

II

Discovery rulings are reviewed for abuse of discretion.³ There is an abuse of discretion when the discretion exercised is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.⁴

Strong and Williams cite In re Detention of Aguilar⁵ and In re Detention of Broer⁶ for the proposition that CR 35 does not apply in RCW 71.09 proceedings. In Aguilar, the defendant argued that evidence obtained during his statutorily mandated RCW 71.09.040⁷ psychological evaluation should have been excluded because the State failed to meet the CR 35 showing of "good cause."⁸ The court rejected this argument, noting that under CR 81⁹ statutory procedural rules for special proceedings supercede conflicting general civil rules. Accordingly, the court held that the special proceedings for sexually violent predator petitions found in RCW 71.09.030 and .040 supercede CR 35's requirement that good cause be shown in order to compel an examination.¹⁰ Similarly, in Broer, the defendant argued that the trial court erred by compelling the statutorily mandated mental examination without requiring a showing of good cause as required by CR 35. We rejected the defendant's argument and held that:

[w]e agree with the court in Aguilar that the proceedings specified in RCW 71.09 are special proceedings as that term is used in CR 81.

...

We conclude that the requirement of showing good cause in CR 35 is inconsistent with the statute's directive that upon a determination of probable cause, an examination shall be conducted. In short, the statute controls and there is no requirement for a CR 35 showing of good cause for a court to order a mental examination in this special proceeding.[¹¹]

According to Strong and Williams, Aguilar and Broer indicate that CR 35 has no applicability in an RCW 71.09.040 proceeding. As a result, the State cannot seek a CR 35 examination in addition to the mandatory RCW 71.09.040(4)¹² mental health examination. The State argues that Aguilar and Broer stand merely for the proposition that the mandatory evaluation required by RCW 71.09.040(4) is a "special proceeding" that must be ordered by the court without regard to proof of...