Andrew Cooley v. Susan Camicia, 74048-2

Background

In 2006 Susan Camicia struck a wooden bollard while bicycling on the I-90 Trail in Mercer Island and became quadriplegic; the City retained attorney Andrew Cooley the day after the accident to defend potential claims.
Camicia served discovery in 2007 seeking prior bicycle/pedestrian incidents, complaints, reports, and related documents; the City responded but did not search the Fire Department records or disclose numerous responsive items.
Relevant records existed (e.g., a July 2005 bike–bollard incident, several complaints/emails about bollards), and police photos from the day of Camicia’s accident were withheld until 2009; some pre-incident claim records had been destroyed per the City’s retention schedule.
The trial court ordered broad supplemental production in May 2015; the City produced many records then, but trial was continued and Camicia sought sanctions for discovery violations.
The trial court found the City and Cooley willfully violated discovery obligations (false/misleading responses, failure to search Fire Department and other files, failure to seek a protective order or to supplement) and imposed a $10,000 joint-and-several monetary sanction (to Legal Foundation of Washington) and permitted certain evidence/spoliation instruction; Cooley appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether withholding Fire Department records was sanctionable given HIPAA/UHCIA	Camicia: City and counsel unreasonably failed to search Fire Department records that contained discoverable accident information; HIPAA/UHCIA did not excuse a reasonable search or disclosure of non-medical, non-identifying accident data	Cooley: Fire Department records are protected health information under UHCIA/HIPAA, so reliance on those records was improper and they need not be searched/produced	Held: Court affirmed sanctions — HIPAA/UHCIA do apply to medical records but plaintiff did not seek health-care records; City/counsel had duty to search for discoverable, non-privileged information and to seek a protective order if necessary, not unilaterally ignore the records.
Whether destruction of pre-incident tort-claim records constituted sanctionable spoliation	Camicia: City’s destruction impeded her ability to prove notice and was evidence of spoliation	Cooley/City: Records were destroyed in normal course under state retention schedule, without bad faith	Held: Court concluded record did not show spoliation (bad faith/duty on the eve of litigation), but any error on spoliation was harmless because monetary sanction was based on other willful discovery violations.
Whether Cooley acted reasonably/in good faith in responding to discovery and thus should avoid sanctions	Cooley: Responses and objections were timely, reasonable, and reflected good-faith limits; he reasonably relied on departmental searches and privacy laws	Camicia: Responses were false, misleading, evasive (e.g., “institutional knowledge” qualification, narrowing geographic scope), and counsel failed to search multiple City departments or seek protective order	Held: Court affirmed — unchallenged factual findings showed willful, evasive responses and failure to conduct reasonable searches; sanctions were within trial court discretion.
Whether it was proper to sanction counsel jointly and severally with the City and whether lesser sanctions were required	Camicia: Counsel should be sanctioned for participating in willful discovery abuse; joint responsibility authorized by rule	Cooley: Any sanction should have been on City alone; trial court should have considered lesser sanctions first (Burnet factors)	Held: Court affirmed joint-and-several monetary sanction — CR 37 permits sanctioning a party or its attorney; monetary sanction does not require the Burnet test though the court considered lesser options and Burnet factors anyway.

Key Cases Cited

Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299 (1993) (standard for reviewing discovery sanctions and proportionality of sanctions)
Lowry v. PeaceHealth, 174 Wn.2d 769 (2012) (privileged medical/quality records: duty to disclose existence and to identify unprivileged information or seek protective order)
Magana v. Hyundai Motor Am., 167 Wn.2d 570 (2009) (sanctions goals: deter, punish, compensate, educate; willful discovery abuse not tolerated)
Burnet v. Spokane Ambulance, 131 Wn.2d 484 (1997) (factors for imposing harsher CR 37(b) sanctions)
Mayer v. Sto Indus., Inc., 156 Wn.2d 677 (2006) (monetary sanctions and when Burnet factors are required)
Henderson v. Tyrrell, 80 Wn. App. 592 (1996) (spoliation framework: relevance and culpability analysis)
Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772 (1991) (discovery as part of right of access to courts)