Kittitas County v. Allphin

Chem-Safe Environmental was a hazardous waste facility located in Kittitas County. 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 ChemSafe and ABC Holdings. Rivard learned that Chem-Safe did not hold a permit to handle or store moderate risk waste. Over 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. 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. Chem-Safe appealed a hearing officer's ruling, which was subsequently affirmed by the superior court and the Court of Appeals. 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?" The Kittitas County deputy prosecutor responded, "[Ecology] is not my client (Kittitas County is), therefore, these e-mails are not attorney-client privileged." The assistant attorney general opined 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; thus, the record reflected only the parties' understanding of whether Kittitas County and Ecology's communications with one another were attorney-client privileged. The issue this case presented for the Washington Supreme Court’s review were two important aspects of the work product doctrine: (1) were the e-mails exchanged between the Kittitas County and the Department of Ecology work product; and (2) if yes, were they discoverable under the Public Records Act (PRA), chapter 42.56 RCW? The Court held the e-mails were work product because they were prepared by or for Kittitas County in anticipation of litigation. Furthermore, the Court found 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. View "Kittitas County v. Allphin" on Justia Law