Soter v. Cowles Pub. Co.

• Decision Date: 27 December 2007
• Docket Number: No. 78574-1.,78574-1.
• Citation: 162 Wn.2d 716,174 P.3d 60
• Parties: Cody SOTER, a minor child; Francis Soter and Glenda Carr, individually, and as parents of Cody Soter; the Estate of Nathan Walters, a deceased minor child; Rick Walters and Teresa Walters, individually, and as parents of Nathan Walters, a deceased minor child, Plaintiffs, Spokane School District No. 81, a Washington Municipal Corporation, Respondent, v. COWLES PUBLISHING COMPANY, a Washington corporation, Petitioner.
• Court: Washington Supreme Court

174 P.3d 60

162 Wn.2d 716

Cody SOTER, a minor child; Francis Soter and Glenda Carr, individually, and as parents of Cody Soter; the Estate of Nathan Walters, a deceased minor child; Rick Walters and Teresa Walters, individually, and as parents of Nathan Walters, a deceased minor child, Plaintiffs Spokane School District No. 81, a Washington Municipal Corporation, Respondent, v. COWLES PUBLISHING COMPANY, a Washington corporation, Petitioner.

No. 78574-1.

Supreme Court of Washington, En Banc.

Argued March 20, 2007.

Decided December 27, 2007.

Duane Michael Swinton, Spokane, WA, Tracy N. Leroy, Baker Botts LLP, Houston, TX, for Petitioner.

Paul Eric Clay, John Alfred Manix, Stevens Clay & Manix PS, Brian E. Kistler, Spokane, WA, for Respondent.

Milton G. Rowland, Foster Pepper PLLC, Spokane, WA, Daniel Brian Heid, City of Auburn, Auburn, WA, Amicus Curiae on behalf of Washington State Association of Municipal Attorneys.

Michele Lynn Earl-Hubbard, Allied Law Group, LLC, Minh P. Ngo, Davis Wright Tremaine LLP, Seattle, WA, Amicus Curiae on behalf of Washington Coalition for Open Government.

Grace Tsuang Yuan, Denise L. Stiffarm, Laura Kristine Clinton, Kirkpatrick & Lockhart Preston Gates Ell, Seattle, WA, Amicus Curiae on behalf of Washington Schools Risk Management Pool, The Washington Association of School Administrators, The Washington Council of School Attorneys, The Southwest Washington Risk Management Insurance Cooperative, The Washington Governmental Entity Pool.

Michele Lynn Earl-Hubbard, Allied Law Group, LLC, Seattle, WA, Amicus Curiae on behalf of Allied Daily Newspapers of Washington, Washington Newspaper Publishers Association.

BRIDGE, J.

¶ 1 Nine-year-old Nathan Walters died after ingesting part of a peanut butter cookie, which was served to him in a school lunch on a school field trip. The school district had been aware that Nathan was severely allergic to peanuts, but it did not provide him with a special lunch, nor did school personnel administer epinephrine soon enough to prevent his death. The school district undertook an investigation, Nathan's parents gave notice of their intention to file a wrongful death claim against the school district, and the parties mediated and settled the claim.

¶ 2 Just before mediation began, a reporter from The Spokesman-Review requested all of the school district's documents relating to Nathan's death pursuant to the Public Records Act, chapter 42.56 RCW. The school district refused to produce 75 records on the grounds that the records were exempt from public disclosure based on attorney-client privilege and the attorney work product doctrine, both recognized exceptions to the Public Records Act's disclosure requirements. We conclude that the vast majority of the documents at issue here are protected from disclosure because they are handwritten notes or memoranda about witness interviews created by the legal team, making them protected work product. Three additional documents are protected work product created by the legal team, even though they are not handwritten notes from witness interviews. The remaining documents involve privileged communications between the attorneys and their clients.¹

¶ 3 The parties have also asked us to determine whether an agency can petition for a judicial determination that records are exempt from disclosure. We conclude that pursuant to RCW 42.56.540, a state or local government entity can seek judgment in superior court as to whether a particular record is subject to disclosure under the Public Records Act.

I Facts and Procedural History

¶ 4 Nathan Walters transferred to Logan Elementary School in the Spokane School District in the spring of 2001. At that time, school district personnel and Nathan's family communicated about Nathan's medical conditions, which included asthma and a severe allergy to peanuts.

¶ 5 On Friday May 18, 2001, Nathan's class went on a field trip to a farm. Nathan's teacher brought along Nathan's asthma inhaler and EpiPen, which could be used to inject a dose of epinephrine in case of a severe allergic reaction. The school provided sack lunches for the students, and the teachers made no special request for Nathan. The sack lunch contained a peanut butter and jelly sandwich, trail mix, carrots, an apple, and a peanut butter cookie. Nathan gave the sandwich and the trail mix to his teacher, but ate at least part of the peanut butter cookie before realizing what it was. He started to feel ill, and he returned to the bus with a parent chaperone who is also a nurse. Nathan's teacher and the chaperone communicated with Nathan's father's partner by phone three times. Because Nathan suffered from frequent asthma attacks, which had in the past been exacerbated by anxiety, the partner told them to use the inhaler and try to calm Nathan down. When Nathan's condition worsened, the teacher, nurse, and partner decided that Nathan should be driven home.

¶ 6 A parent volunteer drove while Nathan and the volunteer nurse chaperone sat in the backseat. Nathan's condition worsened dramatically, and they stopped at a fire station for help. Though Nathan was adamant that he did not want to use the EpiPen, the nurse administered the shot. Meanwhile, a maintenance worker at the fire station, who was also a volunteer fire fighter, radioed for help. Almost immediately after the shot, Nathan stopped breathing and he had no pulse, so the nurse and fire fighter administered CPR (cardiopulmonary resuscitation). Emergency personnel arrived and took Nathan to the hospital, where he died later that afternoon.

¶ 7 The school district associate superintendent and superintendent were notified that afternoon. Both appreciated the gravity of the situation and activated the school district's crisis counseling system. The superintendent and the school district community relations director provided interviews to the press. Reporters from The Spokesman-Review learned Nathan's teacher's name from a student in the class, but both Nathan's principal and his teacher declined to speak with reporters. Reporters were able to interview one of the parent chaperones and some students who were on the field trip. Other school district personnel discussed with reporters details about the support being provided to classmates and students at Logan.

¶ 8 The school district superintendent also immediately anticipated a wrongful death action and contacted the school district's long-standing legal counsel. Over the weekend following Nathan's death, the superintendent and associate superintendent had several meetings with counsel, John Manix and Paul Clay. The team decided that the law firm would hire a private investigator to interview witnesses. The firm hired David Prescott, and he began interviewing witnesses the following Monday morning. Clay and Manix also confirmed with the school district's insurance company that they would be the attorneys retained by the company to represent the school district.

¶ 9 The attorneys shared with Prescott their factual theories and what they perceived to be the strengths and weaknesses of a wrongful death case against the school district. Clay gave Prescott examples of questions to ask school personnel and witnesses, and Clay explained the information he wanted from each witness. Clay directed Prescott to contact Clay or Manix after each interview to report and to get direction as to whom he should interview next. As the interviews progressed, Prescott reported to and provided interview notes for the attorneys as directed, and the attorneys discussed with him in detail the information he should cover with each witness and why that information was important, in light of their assessments as to the legal and factual issues presented by the potential (and later actual) wrongful death claim. At all times during his investigation, Prescott understood the purpose of his work was to assist the firm in preparing to defend against civil liability claims involving Nathan's death. Prescott's fees were paid by the school district's insurance company.

¶ 10 The attorneys and Prescott believed that several school district employees and volunteers were also their individual clients because the school district's insurance policy provided them coverage. The attorneys assured these clients that their communications with Prescott and the attorneys were protected by attorney-client privilege. The two teachers on the field trip retained their own lawyers, but Clay and Manix also represented them to the extent that the school's insurance policy covered them. The teachers' attorneys entered into joint representation agreements with Clay and Manix to ensure that communications among the attorneys and those clients would remain privileged.

¶ 11 The superintendent held a press conference on May 22, a few days after Nathan's death and the school district issued a press release. The press release detailed the events of May 18, including when Nathan became ill and what decisions were made to provide for his care. The superintendent also reported that the school district had provided the lunch to Nathan despite the fact that they knew of his allergy. A reporter from The Spokesman-Review interviewed fire station personnel who explained what had happened at the fire station. Then on May 24, The Spokesman-Review reporter interviewed the superintendent again, discussing the school district's decision to eliminate peanut butter cookies from their menu.

¶ 12 Also on May 23, 2001, the school district received notice that Nathan's parents and Nathan's estate had retained counsel. CP at 395. Counsel for Nathan's parents informed Clay and Manix that the Walters family intended to file a wrongful death claim against the school district. Id. The Spokesman-Review reporter spoke with Nathan's parents' attorney and as information became available, the attorney talked to the reporter about the cause of death and the medical examiner's report.

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