Soter v. Cowles Pub. Co.

• Decision Date: 09 March 2006
• Docket Number: No. 23136-4-III.
• Citation: Soter v. Cowles Pub. Co., 130 P.3d 840, 131 Wn. App. 882 (Wash. App. 2006)
• Court: Washington Court of Appeals
• 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, Appellant.

130 P.3d 840

131 Wn. App. 882

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, Appellant.

No. 23136-4-III.

Court of Appeals of Washington, Division 3.

March 9, 2006.

COPYRIGHT MATERIAL OMITTED

Tracy N. Leroy, Witherspoon, Kelley, Davenport & Toole, Duane Michael Swinton, Attorney at Law, Spokane, WA, for Appellant.

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

Daniel Brian Heid, City of Auburn, Auburn, WA, Milton G. Rowland, Attorney at Law, Spokane, WA, for Amicus Curiae on behalf of Washington State Association of Municipal Attorneys.

Michele Lynn Earl-Hubbard, Davis Wright Tremaine LLP, Seattle, WA, for Amicus Curiae on behalf of Washington Coalition for Open Government.

Grace Tsuang Yuan, Preston Gates & Ellis LLP, Seattle, WA, for Amicus Curiae on behalf of The Washington Schools Risk Management Pool, Amicus Curiae on behalf of The Washington Association of School Administrators, Amicus Curiae on behalf of The Washington Council of School Attorneys, Amicus Curiae on behalf of The Southwest Washington Risk Management Insurance Co., Amicus Curiae on behalf of The Washington Governmental Entity Pool.

SWEENEY, J.

¶ 1 This is a public disclosure act dispute, RCW 42.17.250-.348. A newspaper requested records of an investigation and settlement by Spokane School District No. 81 (District) following the wrongful death of a young student from anaphylactic shock. The District fed the child a peanut-laden snack lunch despite knowledge that he was allergic to peanuts. The documents requested were all generated by the District's attorneys and their investigators. The District consulted the attorneys to give advice and prepare for the anticipated wrongful death claim, which quickly followed the child's death. We conclude that the requested documents were attorney work product and affirm the refusal of the trial judge to order disclosure.

FACTS

¶ 2 A child died from an acute allergic reaction to peanuts while on a field trip with his elementary school class. His medical condition was well known to the District's food staff, the boy's teacher, and the organizers of the field trip, including two school nurses and several parent volunteers. Nevertheless, only peanut-laden snack lunches were provided. The child reported that he did not feel well after tasting a peanut-based cookie. The chaperones did not want to curtail the activities for the other children. So they put the sick child in the school bus to wait. His condition became acute and he was finally taken to a hospital by car. He received an epinephrine injection for the first time on the way. The response was too late and the child died.

¶ 3 Associate District Superintendent Mark Anderson was informed of the unfolding tragedy by telephone. He recognized the urgent need for legal counsel and immediately called the District's private law firm. Counsel advised that a wrongful death action was a near certainty. The lawyers then took over all aspects of the District's response. They told Mr. Anderson to send them any documents in the District's files about this child, the field trip, and the District's policies and procedures. All of these preexisting documents were released upon request, and none is at issue here. Respondent's Br. at 23 n. 9.

¶ 4 The law firm hired a private investigator to gather facts and interview witnesses. The lawyers prepared all documents and counseled the District to keep the investigation confidential. The law firm quickly negotiated a settlement between the District and the child's parents. The settlement agreement was also released.

¶ 5 In addition to the records provided, The Spokesman Review, a Spokane regional daily newspaper published by Cowles Publishing Company, requested additional records relating to the incident, pursuant to provisions of the public disclosure act. At issue here are the investigator's notes of interviews with witnesses, the investigator's hand-drawn map, counsel's conference notes, and counsel's report to the District's large loss insurer evaluating the District's legal position. Documents List Nos. 4-75, Clerk's Papers (CP) at 223-37.

¶ 6 The deceased child's parents and the District moved the superior court for a declaration that the records were exempt from disclosure. See RCW 42.17.330. The District asserted the statutory exemptions for attorney work product and attorney-client privilege. Cowles moved to require the District to show cause why the documents should not be produced. The District moved for summary judgment.

¶ 7 The trial court examined the documents in camera and concluded they were "classic" attorney work product and attorney-client privileged material and exempt from disclosure under RCW 42.17.310(1)(j).

¶ 8 Cowles appeals.

DISCUSSION

¶ 9 Cowles relies on two essential arguments. First, it characterizes its request as being only for the bare facts about the field trip and how peanuts ended up in this student's lunch. And, it argues, such purely factual information is not protected under the work product doctrine. Cowles denies any claim to documents that reflect an attorney's mental impressions or legal theories. It argues that witness interview notes and maps are not attorney work product because they contain essentially facts from which any mental impressions or legal theories of counsel could easily be redacted. Second, Cowles argues that the documents should not be protected because they should have been generated by the District, not by lawyers.

¶ 10 The District responds that the records are exempt from disclosure by the plain language of the public disclosure act. They are (a) "relevant to a controversy to which an agency is a party" and (b) would not be available to an adverse party under the superior court pretrial discovery rules. RCW 42.17.310(1)(j); Limstrom v. Ladenburg, 136 Wash.2d 595, 605, 963 P.2d 869 (1998).

STANDARD OF REVIEW AND CANONS OF CONSTRUCTION

¶ 11 The decision to exempt public documents as attorney work product presents a mixed question of law and fact. See Limstrom, 136 Wash.2d at 606, 963 P.2d 869. The definition of work product is a question of law that we review de novo. RCW 42.17.340(3); see Limstrom, 136 Wash.2d at 606, 963 P.2d 869. But whether a particular document falls within the definition of work product under that interpretation is a finding of fact. Dawson v. Daly, 120 Wash.2d 782, 792, 845 P.2d 995 (1993). We will uphold the trial court's findings of fact if substantial evidence supports them. Org. to Preserve Agric. Lands v. Adams County, 128 Wash.2d 869, 882, 913 P.2d 793 (1996).

¶ 12 We construe the disclosure provisions of the public disclosure act broadly and the exemptions narrowly. Dawson, 120 Wash.2d at 789-90, 845 P.2d 995. And we try to harmonize the statute with the court rules, giving full effect to both. Id. at 790, 845 P.2d 995.

WORK PRODUCT

¶ 13 The public disclosure act applies when a member of the public asks an "agency" for a "public record." Id. at 788, 845 P.2d 995. The District is an agency. A public record is "any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by" an agency. Former RCW 42.17.020(36) (1995); Dawson, 120 Wash.2d at 789, 845 P.2d 995. These records are, then, public records.

¶ 14 The public disclosure act requires disclosure, therefore, unless a specific exemption can be found in the public disclosure act or in another statute. RCW 42.17.260(1); Limstrom, 136 Wash.2d at 604, 963 P.2d 869; Dawson, 120 Wash.2d at 789, 845 P.2d 995.

¶ 15 The public disclosure act contains a specific exemption for records that "are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts." RCW 42.17.310(1)(j). A "controversy" is not restricted to ongoing formal litigation. It can begin before the formal commencement of a lawsuit and continue afterward. Dawson, 120 Wash.2d at 790, 845 P.2d 995 (citing Heidebrink v. Moriwaki, 104 Wash.2d 392, 400, 706 P.2d 212 (1985)). Relevant records are exempt from disclosure under the public disclosure act if they would not be available to an adverse party under the superior court discovery rules. RCW 42.17.310(1)(j); Limstrom, 136 Wash.2d at 605, 963 P.2d 869.

¶ 16 A trial judge has broad discretion to manage the discovery process so as to ensure full disclosure of relevant information while protecting the litigants against harmful side effects of disclosure. O'Connor v. Dep't of Soc. & Health Servs., 143 Wash.2d 895, 905, 25 P.3d 426 (2001). The rules protect material defined as attorney work product. CR 26(b)(4). The parties here dispute the definition of work product on these facts.

¶ 17 The attorney work product doctrine first appears in Hickman v. Taylor.¹ It is intended "to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy `with an eye toward litigation,' free from unnecessary intrusion by his adversaries." United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir.1998) (quoting Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). The Hickman doctrine is now codified in the civil rules at Fed.R.Civ.P. 26(b)(3) and Washington's CR 26(b)(4).

[A] party may obtain discovery of documents... discoverable ... and prepared in anticipation of litigation or for trial by or for another party ... only upon a showing that the party seeking discovery has substantial...