Kittitas Cnty., Corp. v. Sky Allphin, Abc Holdings, Inc.
416 P.3d 1232
Wash.2017Background
- Kittitas County issued a Notice of Violation and Abatement (NOVA) to Chem‑Safe for hazardous‑waste violations; Chem‑Safe appealed through administrative and judicial channels.
- During investigation and litigation, Kittitas County deputy prosecutors and Washington Department of Ecology (Ecology) employees exchanged e‑mails discussing facts, technical assistance, draft declarations, and litigation strategy.
- Chem‑Safe's president submitted Public Records Act (PRA) requests to both Kittitas County and Ecology seeking records relating to the Chem‑Safe inspection and enforcement.
- Kittitas County withheld 32 e‑mail chains as work product; Ecology agreed to withhold pending the County seeking court protection.
- The superior court and Court of Appeals held the e‑mails were work product and not waived by sharing with Ecology; the Washington Supreme Court reviewed whether the common‑interest doctrine prevents waiver under the PRA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the interagency e‑mails are work product under CR 26(b)(4) | Chem‑Safe: some e‑mails originate from Ecology and thus are ordinary agency records, not work product | Kittitas County: e‑mails were prepared by/for County in anticipation of litigation and reflect legal strategy and impressions | Held: e‑mails are work product — prepared by/for County in anticipation of litigation |
| Whether Kittitas County waived work product protection by disclosing e‑mails to Ecology | Chem‑Safe: disclosure to a third party (Ecology) waived protection; PRA makes public agencies likely conduits for disclosure | Kittitas County: sharing with a co‑interested government agency does not waive work product when disclosure does not make it significantly likely an adversary will obtain the materials | Held: No waiver — Court adopts rule that waiver requires disclosure creating a significant likelihood an adversary will obtain the material; sharing with Ecology did not meet that test |
| Whether the PRA entitles requester to obtain work product from a public agency recipient | Chem‑Safe: PRA gives right to request records from any agency, so Ecology must produce withheld e‑mails | Kittitas County: PRA incorporates controversy exception (RCW 42.56.290) — records not subject to pretrial discovery are exempt | Held: PRA does not overcome work product protection; controversy exception exempts these e‑mails from disclosure |
| Standard for waiver of work product (common interest applicability) | Chem‑Safe: agencies subject to PRA require a bright‑line rule or presumption of waiver when disclosing to another public agency | Kittitas County: adopt prevailing federal/state rule — waiver only when disclosure creates significant likelihood an adversary will obtain material; common‑interest alignment can prevent waiver without a written agreement | Held: Adopt the federal/state rule; common interest here (statutory cooperation, long collaboration, shared strategy) meant no waiver; no written agreement required |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (United States 1947) (establishes work‑product protection for attorney trial preparation materials)
- United States v. Nobles, 422 U.S. 225 (United States 1975) (work product protection extends to materials prepared by agents for attorneys)
- Limstrom v. Ladenburg, 136 Wash.2d 595 (Wash. 1998) (describes Washington standards for work product and PRA controversy exception)
- Soter v. Cowles Publishing Co., 162 Wash.2d 716 (Wash. 2007) (applies work‑product doctrine to government investigative notes and PRA controversy exception)
- Heidebrink v. Moriwaki, 104 Wash.2d 392 (Wash. 1985) (no distinction between attorney and non‑attorney work product)