Kittitas Cnty., Corp. v. Sky Allphin, Abc Holdings, Inc.

• Decision Date: 16 March 2017
• Docket Number: No. 93562-9,93562-9
• Citation: 416 P.3d 1232,190 Wash.2d 691
• Parties: KITTITAS COUNTY, a municipal corporation and political subdivision of the State of Washington, Respondent, v. Sky ALLPHIN, ABC Holdings, Inc., Chem-Safe Environmental, Inc., Petitioners, Washington State Department of Ecology, Defendant.
• Court: Washington Supreme Court

190 Wash.2d 691

416 P.3d 1232

KITTITAS COUNTY, a municipal corporation and political subdivision of the State of Washington, Respondent,

v. Sky ALLPHIN, ABC Holdings, Inc., Chem-Safe Environmental, Inc., Petitioners,Washington State Department of Ecology, Defendant.

No. 93562-9

Supreme Court of Washington.

March 16, 2017

Filed May 17, 2018

As Amended June 18, 2018

Nicholas James Lofing, Davis, Arneil Law Firm, 617 Washington St., Wenatchee, WA, 98801-2600, Leslie Alan Powers, Attorney at Law, 3502 Tieton Dr., Yakima, WA, 98902-3661 for Petitioners.

Travis H. Burns, Thurston County Prosecutor's Office, 2000 Lakeridge Dr. Sw, Olympia, WA, 98502-6045 for Defendant.

Kenneth W. Harper, Quinn N. Plant, Menke Jackson Beyer, LLP, 807 N 39th Ave., Yakima, WA, 98902-6389, Neil Alan Caulkins, Kittitas County Prosecutor, 205 W 5th Ave. Ste. 213, Ellensburg, WA, 98926-2887 for Respondent.

Harold Lee Overton, Attorney at Law, PO Box 40117, Olympia, WA, 98504-0117, Amicus Curiae on behalf of Attorney General.

William John Crittenden, Attorney at Law, 12345 Lake City Way Ne, Seattle, WA, 98125-5401, Amicus Curiae on behalf of Washington Coalition for Open Government.

Margaret Ji Yong Pak, Enslow Martin PLLC, 701 5th Ave. Ste. 4200, Seattle, WA, 98104-7047, Amicus Curiae on behalf of ACLU.

William John Crittenden, Attorney at Law, 12345 Lake City Way Ne, Seattle, WA, 98125-5401, Amicus Curiae on behalf of Spokesman-Review.

WIGGINS, J.

¶ 1 We decide here two important aspects of the work product doctrine. First, were the e-mails exchanged between the Kittitas County and the Department of Ecology work product? Second, if the e-mails are work product, are they discoverable under the Public Records Act (PRA), chapter 42.56 RCW? We hold that the e-mails are work product because they were prepared by or for Kittitas County in anticipation of litigation. Second, we hold that Kittitas County did not waive its work product protection because disclosure of the e-mails to Ecology never created a significant likelihood that an adversary would also obtain the information. As a result, we affirm the Court of Appeals.

FACTS AND PROCEDURAL HISTORY¹

I. Enforcement Action

¶ 2 Chem-Safe Environmental is a hazardous waste facility located in Kittitas County. Clerk’s Papers (CP) at 2002.

While inspecting a neighboring facility, James Rivard, the Kittitas County environmental supervisor, and Gary Bleeker, an Ecology employee, saw drums labeled as hazardous waste on property belonging to Chem-Safe and ABC Holdings. Id. 2000, 2002. Upon investigation, Rivard learned that Chem-Safe did not hold a permit to handle or store moderate risk waste. Id. at 2002.

¶ 3 Throughout the next two years, both Kittitas County and Ecology employees visited the Chem-Safe facility together, e-mailed one another about the matter, and met to discuss the progress in bringing Chem-Safe into compliance with state and local regulations. Id. at 2002-08. Chem-Safe never satisfied Kittitas County’s or Ecology’s requirements regarding operation of its facility. Id. at 2008.

¶ 4 Eventually, Kittitas County issued a "Notice of Violation and Abatement" (NOVA) requiring Chem-Safe to halt operations until it obtained the necessary permits and equipment and conducted contamination testing. Id. at 2009, 1265-68. The NOVA cover letter discussed the work of both Kittitas County and Ecology on the case and listed both as resources from which Chem-Safe could receive technical assistance to meet the NOVA’s requirements. Id. at 1265.

¶ 5 Chem-Safe appealed the NOVA, which was affirmed by a hearing officer. Id. at 1273-79. Chem-Safe then appealed the hearing officer’s ruling, which was subsequently affirmed by the superior court and the Court of Appeals. Id. at 1281-88; ABC Holdings, Inc. v. Kittitas County, 187 Wash. App. 275, 348 P.3d 1222 (2015). We denied review of the appellate court decision. ABC Holdings, Inc. v. Kittitas County, 184 Wash.2d 1014, 360 P.3d 817 (2015).

¶ 6 During the course of the litigation, Kittitas County deputy prosecutors sent several e-mails back and forth to Ecology employees. In one of those e-mails, an Ecology employee e-mailed a county deputy prosecutor, asking, "Should these emails be considered attorney-client privileged ?" CP at 1501 (emphasis added). The Kittitas County deputy prosecutor responded, "[Ecology] is not my client (Kittitas County is), therefore, these e-mails are not attorney-client privileged. " Id. at 1500 (emphasis added). The Kittitas County deputy prosecutor copied her response to an assistant attorney general. Id. The assistant attorney general also responded, stating that the e-mails were not attorney-client privileged without a joint-prosecution agreement. Id. at 1499. The assistant attorney general also stated that there might be other privileges that applied to the e-mails but that she lacked enough information to know the specific options for keeping the e-mails privileged. Id. at 775. Thus, the record reflects only the parties’ understanding of whether Kittitas County and Ecology’s communications with one another were attorney-client privileged.²

II. Public Records Action

¶ 7 Against this backdrop, and while the Court of Appeals reviewed the NOVA, Sky Allphin, president of Chem-Safe, filed a PRA request with Kittitas County. Id. at 2001, 70. Allphin requested all records from January 1, 2010, forward relating to the inspection of Chem-Safe’s facility and specifically requested correspondence from Kittitas County, Ecology, and other agencies. Id. at 70. Ultimately, Kittitas County produced more than 20,000 pages of records in monthly increments. Id. at 1108-14.

¶ 8 Allphin also filed a similar PRA request with Ecology. Id. at 71. Five days later, in response to a request from Kittitas County, Ecology "promised to withhold the records" while Kittitas County sought an injunction.³ Id. at 2695-96, 2718 ("The Ecology public records officer promised that such records would not be released until [Kittitas] County had an opportunity to seek court protection as allowed by RCW 42.56.540 and 42.56.550."). Kittitas County sought, and the superior court granted, a temporary restraining order to prevent the release of several e-mails that Kittitas County claimed to be exempt from production as work product under the PRA. CP at 92-96, 661-67. Allphin disputed whether these e-mails were work product and, if so, whether Kittitas County had waived any accompanying privilege. Eventually, the parties narrowed down the list of disputed records to 32 e-mail chains. Id. at 781, 2722-24.

¶ 9 The superior court held an in camera review of the e-mail chains claimed exempt by Kittitas County. Id. at 781. After its review, the court determined the e-mails were exempt from production under the PRA as work product, enjoined Ecology from releasing the e-mails, and sealed them. Id. at 789. The court then granted summary judgment in favor of Kittitas County, holding that Kittitas County did not violate the PRA. Id. at 2978-83.

¶ 10 Allphin, Chem-Safe, and ABC Holdings (collectively Chem-Safe) appealed the superior court’s grant of summary judgment and sealing of the e-mails. The Court of Appeals affirmed the superior court in a partially published opinion. See Kittitas County v. Allphin, 195 Wash. App. 355, 381 P.3d 1202 (2016).

¶ 11 The Court of Appeals concluded that the e-mails exchanged between Kittitas County and Ecology were work product because they "contain statements of fact and legal strategies prepared by and for the various employees of [Kittitas] County and Ecology in response to the Chem-Safe litigation." Id. at 366-67, 381 P.3d 1202. It further concluded that "the two agencies agreed to undertake a joint/common cause in the regulatory enforcement litigation against Chem-Safe" and, thus, the work product protection in the e-mails was not waived by disclosure to Ecology because of the common interest doctrine. Id. at 369-70, 381 P.3d 1202.

¶ 12 Chem-Safe filed a petition for review of the Court of Appeals decision with this court. We partially granted the petition on the issue of whether the common interest doctrine applied to the e-mails exchanged between Kittitas County and Ecology, exempting the documents from production under the PRA as work product.

STANDARD OF REVIEW

¶ 13 We review challenges under the PRA de novo. RCW 42.56.550(3). Our review of summary judgment motions is also de novo. Scrivener v. Clark Coll., 181 Wash.2d 439, 444, 334 P.3d 541 (2014). "Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Id. ; see also CR 56(c).

ANALYSIS

¶ 14 We first conclude that the e-mails exchanged between Kittitas County and Ecology are work product. Next, we adopt the rule, used by both federal and state courts, that a party waives its work product protection when it discloses work product documents to a third party in a manner creating a significant likelihood that an adversary will obtain the information. See 8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2024 (3d ed. 2010). Using this rule, we conclude that Kittitas County did not waive its work product protection by exchanging e-mails with Ecology employees. As a result, the e-mails are not subject to disclosure under the PRA.⁴

I. The E-mails Are Work Product

¶ 15 We hold that the e-mails exchanged between Kittitas County and Ecology constitute work product. The e-mails were prepared by or for Kittitas County in anticipation of litigation over the NOVA. As a result, they qualify as work product under Civil Rule (CR) 26(b)(4).

A. The PRA and the Controversy Exception

¶ 16 "The primary purpose of the PRA is to provide broad access to public records to ensure government accountability." City of Lakewood v. Koenig, 182 Wash.2d 87, 93, 343 P.3d 335 (2014). An agency must disclose responsive public records "unless the record falls within the specific exemptions of [the PRA] ... or other statute." RCW...